author: Chief Judge Lippman. Pigott, J.

text:
    [1 NE3d 797, 978 NYS2d 723]
    The People of the State of New York, Respondent, v Akiva Daniel Abraham, Appellant.
    Argued October 15, 2013;
    decided November 26, 2013

      POINTS OF COUNSEL

      Jonathan S. Fishbein, Delmar, for appellant.
    I. Even when viewed in a light most favorable to the prosecution, the record evidence was insufficient to establish appellant’s guilt of second-degree insurance fraud as a matter of law. (People v Bleakley, 69 NY2d 490; People v Fitzgerald, 156 NY 253; People v Lewis, 275 NY 33; People v Marin, 65 NY2d 741; People v Sanchez, 61 NY2d 1022; People v Way, 59 NY2d 361; People v Bearden, 290 NY 478; People v Barnes, 50 NY2d 375; People v Cushner, 46 AD3d 1121; People v Guarino, 56 AD2d 638.) II. The trial court erred by submitting the insurance fraud charge to the jury or, in the alternative, by failing to instruct the jury to stop deliberating after it acquitted appellant of arson. (People v Chase, 299 AD2d 597; People v Wallender, 27 AD3d 955; People v Yarrell, 75 NY2d 828; People v Clayton, 17 AD3d 706; People v Whipple, 276 AD2d 827; People v Horne, 97 NY2d 404; People v Mendoza, 300 AD2d 824, 99 NY2d 617.) III. The prosecution violated appellant’s due process rights by arguing outside the four corners of the evidence and by making false statements to the trial court, the Appellate Division, and this Court. (People v Ashwal, 39 NY2d 105; People v Fisher, 18 NY3d 964; People v Chin, 138 AD2d 389; People v Downing, 112 AD2d 24; People v Trinidad, 59 NY2d 820; People v Lozada, 104 AD2d 663; People v Cobb, 104 AD2d 656; People v Libbett, 101 AD2d 705; Napue v Illinois, 360 US 264; People v Harris, 98 NY2d 452.)

      P David Soares, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.
    I. Defendant’s conviction for insurance fraud in the second degree was supported by legally sufficient evidence. (People v Williams, 84 NY2d 925; People v Danielson, 9 NY3d 342; People v Wong, 81 NY2d 600; People v Trimm, 252 AD2d 673; People v Khan, 18 NY3d 535; People v Boothe, 16 NY3d 195; People v Aksoy, 84 NY2d 912; People v Chase, 299 AD2d 597, 99 NY2d 613; People v Cabey, 85 NY2d 417; People v Roberts, 63 AD3d 1294.) II. The trial court properly submitted the insurance fraud charge to the jury and properly declined to amend the verdict sheet as defendant requested. (People v Alfaro, 108 AD2d 517; People v Pagan, 87 AD3d 1181; People v Michael, 210 AD2d 874; People v Amar, 134 AD2d 601.) III. Prosecutorial misconduct did not deprive defendant of a fair trial. (People v Tarantola, 178 AD2d 768; People v De Vito, 21 AD3d 696; People v Demming, 116 AD2d 886; Williams v Brooklyn El. R.R. Co., 126 NY 96; People v Mull, 167 NY 247; People v Benham, 160 NY 402; People v Priori, 164 NY 459; People v Ashwal, 39 NY2d 105.)
   OPINION OF THE COURT

Chief Judge Lippman.

The primary issue in this case is whether factual inconsistency in a jury verdict acquitting a defendant of one count but convicting him of another renders the record evidence legally insufficient to support the conviction. We hold that it does not.

On April 16, 2009, defendant Akiva Abraham’s limited liability company, 1st Call, LLC, acquired a property in Colonie on which stood an abandoned night club known as Saratoga Winners. The purchase price was only one dollar, apparently because the property was encumbered by a bank lien.

On the same day, Parel Road, LLC, originated a mortgage in the amount of $475,000 to 1st Call for the purchase of the property. Parel Road never transferred any money to 1st Call. And at the time of the transaction, Parel Road had about $25 in its checking account. Whether Parel Road owned other assets was not established at trial.

Also on the day of the purchase, defendant signed a property insurance contract with an insurance agent at Shank & Falvey, securing coverage in the amount of $475,000. The policy became effective on April 20, 2009.

On April 30, 2009, two weeks after the purchase, Saratoga Winners burned to the ground. Once fire crews had extinguished the flames, fire investigators searched for the origin of the blaze. A trained dog identified the presence of accelerants both outside and inside the destroyed building. Investigators took samples at the locations the dog identified and sent them to the New York State Police Forensic Investigation Center. They tested positive for strong concentrations of medium petroleum distillate of the kind that is used to light lamps, such as “Klean Heat” or “Tiki” torch fuel. The presence of the accelerants combined with the lack of any fire hazards in the building caused investigators to rule out all possible causes for the fire except arson.

Defendant reported the loss to his insurance company and caused a property loss notice to be filed. He told the company that he did not know the cause of the fire.

Investigators interviewed defendant on two occasions after the fire. The interviews were recorded and played for the jury at trial. During the interviews, defendant gave elaborate explanations of the financial transactions accompanying his purchase of the property and how he intended to profit from flipping it. But it was revealed at trial that the company that held the mortgage, Parel Road, actually was his father’s 401(k), which defendant controlled.

Investigators discovered that on April 27, 2009, three days before the fire, defendant had purchased four gallons of Tiki torch fuel (a medium petroleum distillate) and two nine-pack boxes of Duraflame logs at Home Depot. Police arrested defendant on May 15, 2009 and conducted a search of his car and home. Tests on one of the floor mats in defendant’s car revealed an “abundance” of a medium petroleum distillate. A search of a shed behind defendant’s home revealed four empty one gallon bottles of Tiki torch fuel and two empty Duraflame boxes. Investigators discovered Tiki torches in the shed as well. Also at defendant’s home were a kerosene canister and a gas can. The officers did not seize either container, or check whether they contained Tiki torch fuel.

Defendant was charged with arson in the third degree, insurance fraud in the second degree, and reckless endangerment in the first degree. His first trial ended in a hung jury.

At his second trial, it came out that on at least two occasions, 1st Call had been unable to meet its payroll obligations. After the fire, defendant told a 1st Call employee that the fire “could be big for us.”

The prosecution’s theory of the case was that defendant needed money, obtained a fake mortgage to make it appear as though he intended to improve the property, obtained insurance in the amount of that mortgage, burned down the building, and lied about the cause of the fire to the insurance company to collect on the insurance. During opening and closing, the prosecution repeatedly referred to the mortgage as “fake” and “bogus.” At closing, the defense objected, arguing that the prosecution had not proved that the mortgage was fake and thus was making false statements to the jury. The court overruled the objection.

Before the charge was read to the jury, defense counsel asked the court to include a line in the verdict form instructing the jury to stop deliberating if it found defendant not guilty of arson. Defense counsel maintained that the only theory of insurance fraud charged in the indictment was that defendant had burned down his building and lied to the insurance company about the cause of the fire. Counsel argued that the prosecution’s remarks about the “fake” mortgage made it possible that the jury could find defendant guilty of insurance fraud for lying about the mortgage, not the cause of the fire. The trial judge refused, saying that he knew of no authority in the Criminal Procedure Law that would permit such cessation of deliberations.

The jury found defendant guilty of insurance fraud in the second degree, but acquitted him of arson in the third degree and reckless endangerment in the first degree.

The Appellate Division affirmed the judgment, holding that there was sufficient evidence to support a finding that defendant concealed the cause of the fire from the insurance company (People v Abraham, 94 AD3d 1332, 1333 [3d Dept 2012]). It held also that the prosecution’s references to the “fake” mortgage were not made in an attempt to introduce a new theory of liability, but were part of the prosecution’s narrative, and were a fair comment on the evidence (id. at 1333-1334). A Judge of this Court granted defendant leave to appeal (19 NY3d 1100 [2012]).

Defendant argues that his conviction should be vacated because: (1) the record evidence is insufficient to establish his guilt of insurance fraud in the second degree; (2) the trial court erred by not instructing the jury to stop deliberating after it acquitted defendant of arson; and (3) the prosecution committed misconduct in summation and its arguments on appeal. None of these arguments is persuasive.

A person is guilty of insurance fraud in the second degree when he “commits a fraudulent insurance act and thereby wrongfully takes, obtains or withholds, or attempts to wrongfully take, obtain or withhold property with a value in excess of fifty thousand dollars” (Penal Law § 176.25). As relevant here, “[a] fraudulent insurance act is committed by any person who, knowingly and with intent to defraud presents [or] causes to be presented . . . any written statement as part of, or in support of ... a claim for payment or other benefit” containing “materially false information” or concealing “information concerning” a material fact (Penal Law § 176.05 [1] [a], [b]).

The prosecution’s theory of the case, as charged in the indictment, was that defendant obtained insurance on the property, burned down Saratoga Winners, lied to the insurance company about the cause of the fire, caused to be filed a property loss notice containing misstatements or concealing information about the cause of the fire, and thus wrongfully attempted to take funds in excess of $50,000.

Defendant argues that because the jury acquitted him of arson, the prosecution did not establish that he knew the cause of the fire or lied to the insurance company, and therefore the evidence is insufficient to support his conviction for insurance fraud. In other words, he claims that, in light of the prosecution’s theory of the case, (1) the jury verdict is factually inconsistent, and therefore, (2) the evidence is legally insufficient to support his conviction.

A verdict is factually inconsistent where, in light of the evidence presented, an acquittal on one count is factually irreconcilable with a conviction on another count (People v Muhammad, 17 NY3d 532, 545 [2011]). Factual inconsistency— “which can be attributed to mistake, confusion, compromise or mercy—does not provide a reviewing court with the power to overturn a verdict” (id.; see People v Tucker, 55 NY2d 1, 7 [1981]; and see People v Home, 97 NY2d 404, 413 [2002] [“(I)t is imprudent to speculate concerning the factual determinations that underlay the verdict because what might appear to be an irrational verdict may actually constitute a jury’s permissible exercise of mercy or leniency”]). If a jury renders a factually inconsistent verdict, the trial court “can point out the apparent inconsistency to the jurors, issue further appropriate instructions and ask them to continue deliberations. But a failure to take such action would not be an abuse of discretion as a matter of law” (Muhammad, 17 NY3d at 545).

In contrast, a conviction not supported by legally sufficient evidence should be overturned. A conviction is legally insufficient where, viewing the record in the light most favorable to the prosecution, there is no “valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (People v Danielson, 9 NY3d 342, 349 [2007] [internal quotation marks omitted], quoting People v Acosta, 80 NY2d 665, 672 [1993]).

Factual inconsistency and legal insufficiency are analytically distinct. One may inform the other—i.e., in some instances, a reviewing court may consider a jury’s acquittal on one count in reviewing the record to determine if a factually inconsistent conviction on another count is supported by legally sufficient evidence (see People v Rayam, 94 NY2d 557, 563 n [2000] [noting “propriety of consideration of . . . acquittals in some instances on legal issues such as the sufficiency of the evidence”]; see e.g. People v Yarrell, 75 NY2d 828, 829 [1990]). But it does not follow that such factual inconsistency in the verdict renders the record evidence legally insufficient to support the conviction. Put another way, an acquittal is not a preclusive finding of any fact, in the same trial, that could have underlain the jury’s determination.

Therefore, even assuming, as submitted by defendant, that the jury’s verdict in this case presented a factual inconsistency, it does not affect the propriety of his conviction. But the question remains whether, viewing the evidence in the light most favorable to the prosecution, there is sufficient evidence in the record that defendant committed insurance fraud in the second degree by causing a written statement concealing information about the cause of the fire to be filed in order to collect wrongfully on the policy. We conclude that there is.

Defendant’s company, 1st Call, had been unable to make payroll on at least two occasions. 1st Call acquired the Saratoga Winners property at almost no cost. It then insured the property for $475,000. Defendant explained in his interviews with investigators that he intended to improve and flip the property with the funding from the mortgage from Parel Road. But Parel Road never transferred any money to 1st Call. About 10 days after purchasing the property, defendant bought four gallons of a medium petroleum distillate and 18 Duraflame logs. Days later, Saratoga Winners burned to the ground. Investigators found evidence of medium petroleum distillate both outside and inside the building. Two weeks after the fire, investigators found four empty gallon bottles of medium petroleum distillate at defendant’s home. They also found empty Duraflame boxes, but none of the 18 Duraflame logs. Defendant reported the fire to his insurance company, but did not say that he had burned down the building, causing a property loss notice concealing material information to be filed in support of his claim.

Viewed together, this evidence is sufficient for a rational jury to conclude beyond a reasonable doubt that, in order to solve his financial problems, defendant lied about the cause of the fire to his insurance company in the property loss notice in an effort to collect wrongfully on the policy, thereby committing insurance fraud in the second degree.

Defendant next argues that the trial court should have instructed the jury to stop deliberating after it acquitted defendant of arson. Whether or not the court had the authority to give such an instruction, it was not error to refuse defendant’s request (see Muhammad, 17 NY3d at 545).

Defendant’s final argument is that his conviction should be overturned because of prosecutorial misconduct. He claims that the prosecution knowingly misrepresented facts, most notably relating to the validity of the mortgage, to the jury and repeated those misrepresentations on appeal. The prosecution’s remarks, however, were permissible comments on the evidence presented at trial (see People v Ashwal, 39 NY2d 105, 109 [1976] [explaining that prosecution is afforded the “widest latitude” to comment on evidence]).

Accordingly, the order of the Appellate Division should be affirmed.

Pigott, J.

(dissenting). I would reverse the order of the Appellate Division. Without conceding that the evidence was legally sufficient to establish that defendant was guilty of insurance fraud, I would hold that the trial court committed reversible error by denying defendant’s request to instruct the jury to stop deliberating if it found him not guilty of arson.

As the majority shows, the prosecution’s theory of the case was that defendant himself burned down the abandoned night club. No evidence was introduced suggesting that defendant had any accomplice, and the jury was not instructed on accessorial liability. To avoid the possibility of the factually inconsistent verdict that I believe obtained in this case (see also majority op at 147), the trial court should have instructed the jury to stop deliberating if it acquitted defendant of arson.

Although a factually inconsistent verdict does not provide an appellate court with a justification for overturning a conviction (see People v Muhammad, 17 NY3d 532, 545 [2011]), such verdicts should be prevented when possible by a trial court, because they harbor irrationality. Here, by permitting the jury “to compromise, make mistakes, be confused or . . . extend mercy” (Muhammad, 17 NY3d at 544) and render a factually illogical verdict, the trial court deprived defendant of a fair trial in which the jury had to decide whether the People had proved, beyond a reasonable doubt, that defendant committed the crimes of which he was accused in the manner specified in the indictment. Instead, the jury was invited to reject the prosecution’s theory of the case and still find defendant guilty. The majority’s summary rejection of defendant’s challenge to the jury charge (see majority op at 148, citing Muhammad, 17 NY3d at 545) fails to explain why the trial court’s refusal to give the requested instruction did not amount to reversible error.

Judges Graffeo, Read, Smith, Rivera and Abdus-Salaam concur with Chief Judge Lippman; Judge Pigott dissents and votes to reverse in an opinion.

Order affirmed.

       The chemical characteristics of the petroleum distillate found on the mat in defendant’s car were not consistent with Tiki torch fuel, but instead were consistent with charcoal lighter fluid.


source: Caselaw Access Project

author: Graefeo, J.

license: Public Domain

text:
    [3 NE3d 128, 980 NYS2d 62]
    In the Matter of Council of the City of New York, Respondent, v Department of Homeless Services of the City of New York et al., Appellants.
    Argued October 8, 2013;
    decided November 26, 2013

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Ronald E. Sternberg, Leonard Koerner and Steven Goulden of counsel), for appellants.
    The courts below erred in concluding that the Eligibility Procedure, which vests significant discretion in decision makers and has no legal effect but is merely explanatory of existing state law, is a rule that must be issued pursuant to the New York City Administrative Procédure Act. (Matter of Cordero v Corbisiero, 80 NY2d 771; Matter of Roman Catholic Diocese of Albany v New York State Dept. of Health, 66 NY2d 948; Matter of Schwartfigure v Hartnett, 83 NY2d 296; Matter of Homestead Funding Corp. v State of N.Y. Banking Dept., 95 AD3d 1410; Matter of 439 E. 88 Owners Corp. v Tax Commn. of City of N.Y., 307 AD2d 203; Matter of Dry Harbor Nursing Home & Health Related Facility v Axelrod, 137 AD2d 962, 73 NY2d 701; Matter of New York City Tr. Auth. v New York State Dept. of Labor, 88 NY2d 225; Matter of Singh v Taxi & Limousine Commn. of City of N.Y., 282 AD2d 368; Matter of Taylor v New York State Dept. of Correctional Servs., 248 AD2d 799; Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854.)

      Elizabeth R. Fine, General Counsel, New York City (Jeffrey R Metzler of counsel), for respondent.
    I. The procedure is void because it is a rule that was not promulgated in accordance with the New York City Administrative Procedure Act. (People v Cull, 10 NY2d 123; Matter of Alca Indus. v Delaney, 92 NY2d 775; Matter of Jones v Smith, 64 NY2d 1003; Matter of Schwartfigure v Hartnett, 83 NY2d 296; Matter of Chase Natl. Bank v

      Guardian Realties, Inc., 283 NY 350; Lamie v United States Trustee, 540 US 526; Ali v Federal Bureau of Prisons, 552 US 214; Matter of J.D. Posillico, Inc. v Department of Transp. of State of N.Y., 160 AD2d 1113.) II. The New York City Administrative Procedure Act’s exception for a statement which in itself has no legal effect but is merely explanatory does not apply. (1700 York Assoc. v Kaskel, 182 Misc 2d 586; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Matter of Home Care Assn. of N.Y. State v Dowling, 218 AD2d 126; Matter of Jones v Smith, 64 NY2d 1003; Matter of New York State Coalition of Pub. Empls. v New York State Dept. of Labor, 60 NY2d 789; Cubas v Martinez, 8 NY3d 611; National Assn. of Ind. Insurers v State of New York, 207 AD2d 191; DeBonis v Corbisiero, 178 AD2d 183.)
   OPINION OF THE COURT

Graefeo, J.

In 2011, the New York City Department of Homeless Services (DHS)—the entity charged with providing Temporary Housing Assistance (THA) to homeless men and women in New York City—announced the adoption of a new Eligibility Procedure that required that applicants meet a need standard and cooperate with intake workers in relation to investigations of need. The Council of the City of New York (City Council) brought this declaratory judgment action asserting that the new procedure could not be implemented due to DHS’s failure to comply with the notice and hearing provisions in the New York City Administrative Procedure Act (CAPA) (NY City Charter ch 45). Both lower courts concluded that CAPA had been violated (2012 NY Slip Op 30400[U] [Sup Ct, NY County 2012]; 103 AD3d 464 [1st Dept 2013]) and, because we agree, we now affirm.

CAPA imposes procedural requirements on New York City agencies relating to the promulgation of rules governing local agency practices. These include a requirement that the public and the City Council be given at least 30-days notice of the adoption of a new rule, that a public hearing be held prior to implementation and, in some circumstances, the proposal must be reviewed by the City Law Department and Mayor. It is undisputed that DHS did not comply with CAPA prior to adopting the new protocol—its position is that the Eligibility Procedure is not a “rule” triggering CAPA or that it falls within an exemption to CAPA’s mandates. We address each argument in turn.

CAPA defines a “rule” as “the whole or part of any statement or communication of general applicability that . . . implements or applies law or policy, or . . . prescribes the procedural requirements of an agency” (NY City Charter § 1041 [5]). When interpreting the State Administrative Procedure Act (SAPA), which defines a “rule” in comparable terms, we have stated that “only a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers constitutes a rule or regulation” that is subject to SAPA (Matter of New York City Tr. Auth. v New York State Dept. of Labor, 88 NY2d 225, 229 [1996] [internal quotation marks omitted]; see Matter of Schwartfigure v Hartnett, 83 NY2d 296, 301 [1994]). We have further described rules as “rigid, numerical policies] invariably applied across-the-board to all claimants without regard to individualized circumstances or mitigating factors” (Schwartfigure, 83 NY2d at 301).

DHS’s nine-page Eligibility Procedure directs that intake workers follow a detailed, multi-step process when determining the eligibility of applicants for THA and requires the use of uniform standards relating to the degree of cooperation demanded of an applicant, the circumstances constituting an adequate showing of need and the like. The policy is clearly intended for broad application—it pertains to all single adult applicants who seek THA. Mandatory procedures and uniform standards of this type have generally been determined to be rules under our precedent (see e.g. id. [50% setoff policy for recoupment of unemployment insurance overpayments was a rule under general definition in SAPA]; Matter of Cordero v Corbisiero, 80 NY2d 771 [1992] [“Saratoga policy” requiring jockeys who committed violations during a Saratoga Racecourse meet and appealed their disciplinary determinations to serve their penalties at the next Saratoga meet was mandatory procedure that should have been promulgated as a rule]; see generally Matter of Jones v Smith, 64 NY2d 1003 [1985] [creation of three-tier inmate disciplinary hearing system was a rule that should have been filed with Secretary of State under NY Const, art IV, §8]).

Since DHS intended that the Eligibility Procedure would apply prospectively to all adult applicants for THA, the procedure stands in contrast to practices or policies undertaken by an agency on an ad hoc basis or through the exercise of considerable discretion. For example, the procedure differs significantly from the Office of General Services (OGS) bid withdrawal criteria considered in Matter of Alca Indus. v Delaney (92 NY2d 775 [1999]). Those criteria were not intended to be used in all future competitive bidding contracts but were merely included in the bidding invitation documents relating to a specific contract, with no indication that OGS employees would invariably be bound by the policy again, regardless of the circumstances. As we explained in Alca, a distinction must be drawn between a practice occasionally employed in the discretion of the agency and a policy that “sets standards that substantially alter or, in fact, can determine the result of future agency adjudications” (92 NY2d at 778).

DHS argues that the Eligibility Procedure is not a rule because DHS workers exercise some measure of discretion in resolving certain issues relevant to eligibility, such as whether an applicant has provided adequate cooperation during the need assessment process. But the procedure itself is mandatory—all intake workers must follow it, regardless of the circumstances presented by an individual applicant—and many of the standards articulated in it are mandatory in the sense that their application will dictate whether an individual will or will not receive benefits. For example, applicants are required to produce documentation pertaining to prior housing, financial resources and mental or physical impairment (which may necessitate the signing of a medical release) and if they fail to do so without a valid reason (mental or physical impairment), this “constitutes a failure to cooperate” mandating denial of benefits. Similarly, the procedure specifies that a single adult who has $2,000 of on-hand assets “must utilize his/her resources to reduce or eliminate his/her need for emergency shelter” prior to being eligible for benefits. Another section directs that “[i]f an applicant has tenancy rights at any housing option, that residence will be deemed the viable housing option and the applicant will be found ineligible, provided there is no imminent threat to health or safety.” These concrete provisions substantially curtail, if not eliminate, an intake worker’s discretion to grant THA benefits. In fact, there are several specific directives in the Eligibility Procedure that appear to compel intake workers to deny benefits based on the presence or absence of a single factor, regardless of other circumstances that might support a determination of eligibility. The procedure, which is itself mandatory, requires the application of standards that are dis-positive of the outcome.

For this reason, DHS’s Eligibility Procedure is distinguishable from the penalty guidelines deemed not to be a rule in Matter of New York City Tr. Auth. (88 NY2d 225 [1996], supra). Although the guidelines provided a numerical formula that could be used to calculate the appropriate penalty, there was no requirement that the formula be rigidly enforced—the agency retained discretion to impose a penalty other than the one suggested by the formula if circumstances warranted. Thus, the formula was not necessarily determinative of future penalty cases but merely provided a structure to guide the discretion of agency employees (see also Matter of Roman Catholic Diocese of Albany v New York State Dept. of Health, 66 NY2d 948, 950 [1985], revg for reasons stated in op of Levine, J. 109 AD2d 140, 148 [3d Dept 1985] [50% analysis used as one factor in determining whether to issue a certificate of need permitting expansion of health service was not a rule because it was “nothing more than a nonconclusive, nonbinding guideline to be weighed along with other factors”]). The same is not true here where intake workers are required to use the Eligibility Procedure with respect to all future THA applications and to make benefit determinations based on its articulated standards.

Even when a procedure or policy constitutes a rule it may, nonetheless, be exempt from CAPA’s procedural requirements if it is covered by a CAPA exemption. In this case, DHS points out that THA is a state benefit that is dispensed by local social services agencies. Because many of the provisions in the Eligibility Procedure are derived from state regulations and interpretive statements governing the provision of THA, DHS maintains that the new protocol falls within the CAPA exemption for any “form, instruction, or statement or communication of general policy, which in itself has no legal effect but is merely explanatory” (NY City Charter § 1041 [5] [b] [ii]), a provision similar to the “interpretive statements” exemption in SAPA (see State Administrative Procedure Act § 102 [2] [b] [iv]). Under the latter, state agency practices or statements that merely implement, explain or interpret a standard or requirement already compelled by law are exempt from SAPA’s procedural requirements (see e.g. Cubas v Martinez, 8 NY3d 611 [2007] [where regulation required that driver’s license applicants supply a Social Security number or prove they were ineligible to receive one, DMV memorandum that specified type of documentation that would fulfill regulatory requirement was exempt since it merely specified what proof was acceptable to meet the predetermined standard]; Matter of Elcor Health Servs. v Novello, 100 NY2d 273 [2003] [Department of Health’s “actual improvement standard” was exempt because it constituted a reasonable interpretation of regulation requiring the agency to apply a “restorative therapy qualifier” when categorizing nursing home patients for purposes of assignment of reimbursement rate]).

The situation presented here is unlike the scenarios we have encountered in prior cases involving the SAPA “interpretive statements” exemption. In this case, a municipal agency— DHS—is implementing statutory and regulatory authority imposed not by a municipal executive or legislative body but by another level of government—the State. Unlike SAPA, which contains no provision addressing such a situation, CAPA recognizes that City agencies will sometimes be required to adopt “rules” (i.e., procedures or standards) to effectuate new federal or state statutory or regulatory requirements. As relevant here, the subdivision requiring review by the City Law Department and the Mayor contains an exception stating that such review is not required for “rules that. . . implement particular mandates or standards set forth in newly enacted . . . state . . . laws, regulations or other requirements with only minor, if any, exercise of agency discretion in interpreting such mandates or standards” (see NY City Charter § 1043 [d] [4] [iv]). This means that even if DHS’s Eligibility Procedure is largely duplicative of the pertinent state statutes and regulations (i.e., even if it would otherwise fall within SAPA’s interpretive statements exemption), it is exempt under CAPA from only one aspect of the procedural mandate—the requirement of prior review by the City Law Department and Mayor; CAPA’s notice and hearing requirements remain applicable. Because DHS did not follow the notice and hearing steps necessary to formally promulgate the Eligibility Procedure, the provision is unenforceable until compliance is achieved.

DHS argues that it should not have to comply with CA-PA’s prerequisites because the new standards are largely compelled by state law and therefore have no independent legal effect. Even assuming that this is an accurate description of the Eligibility Procedure, the drafters of the City Charter apparently believed that certain of CAPA’s requirements should nonetheless remain applicable when a City agency is implementing a new state law. This was a reasonable legislative choice for, when a City agency is following a directive issued by another level of government, local officials—such as the City Council—may be unaware of relevant state or federal requirements. The notice and hearing process raises local awareness and provides an opportunity for stakeholders to be heard concerning whether the City agency’s proposed manner of implementation is the best approach to take in light of local concerns. This case demonstrates the value of such a requirement for DHS does not dispute that local agencies possess some measure of discretion when determining how best to implement state directives in relation to THA. To the extent DHS’s hands are tied in some respects due to certain strict standards found in the pertinent state regulations, the agency can assert this point during the regulatory review process.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Lippman and Judges Read, Smith, Pigott and Rivera concur; Judge Abdus-Salaam taking no part.

Order affirmed, with costs.

       In a sense, the state regulations and directives cited by DHS are not “new” since they were adopted by the state agency overseeing THA in the mid 1990s. However, for reasons that are not evident from the record, the Eligibility Procedure constitutes DHS’s first attempt to enforce these provisions of state law in relation to homeless adult men and women. Viewed in this light, the state law is “new” within the meaning of section 1043 (d) (4) (iv). Were we to interpret the term “new” narrowly to exclude a state law that has been on the books for some time but that has not yet been enforced by an agency, the City could, through inordinate delay, avoid compliance with CAPA requirements—something the drafters of CAPA could not have intended.


author: Pigott, J.

text:
    [1 NE3d 791, 978 NYS2d 717]
    Theresa DeVito, Appellant, v Dennis Feliciano et al., Respondents.
    Argued October 15, 2013;
    decided November 26, 2013

      POINTS OF COUNSEL

      Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac of counsel), and Philip J. Rizzuto, PC., Carle Place (Philip J. Rizzuto of counsel), for appellant.
    The trial court erred in denying plaintiff’s request to give a missing witness charge based on defendants’ failure to call at trial the two independent medical examination physicians they retained to testify, since lack of proximate cause was the defendants’ only substantive defense, and plaintiffs experts testified that the accident was a cause of the injuries; the jury should have been advised that it could draw an inference against defendants based on this omission; the testimony of defendants’ physicians would not have been cumulative because in that event plaintiff would be entitled to a directed verdict on the issue of causation. (People v Savinon, 100 NY2d 192; People v Gonzalez, 68 NY2d 424; People v Valerius, 31 NY2d 51; People v Macana, 84 NY2d 173; Graves v United States, 150 US 118; People v Hovey, 92 NY 554; Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73; Crowder v Wells & Wells Equip., Inc., 11 AD3d 360; Kronenberg v Morris, 174 AD2d 610; Noce v Kaufman, 2 NY2d 347.)

      Gottlieb, Siegel & Schwartz, LLP, Bronx (Michael H. Gottlieb and Melissa Paquette of counsel), for respondents.
    The trial court’s denial of plaintiffs request for a missing witness charge was proper due to plaintiffs failure to lay a proper foundation for the charge. In addition, any alleged error by the trial court was clearly harmless error. (Trotta v Koch, 110 AD2d 631; People v Macana, 84 NY2d 173; Getlin v St. Vincent’s Hosp. & Med. Ctr. of N.Y., 117 AD2d 707; O’Brien v Golan, 284 AD2d 256; Morton v New York City Health & Hosps. Corp., 8 AD3d 122; Doviak v Lowe’s Home Ctrs., Inc., 63 AD3d 1348; Holbrook v Pruiksma, 43 AD3d 603; Goverski v Miller, 282 AD2d 789; Berrios v General Star Corp., 210 AD2d 131; Accardi v City of New York, 121 AD2d 489.)

      McGaw, Alventosa & Zajac, Jericho (Andrew Zajac, Dawn C. DeSimone, Roña L. Platt and Brenda T. Fitzpatrick of counsel), and James M. Begley for Defense Association of New York, Inc., amicus curiae.
    Similar to the burden of proof at trial, plaintiff was saddled with the burden of proving her entitlement to having the missing witness charge given to the jury. She failed to satisfy any element needed for the giving of the charge, and the Supreme Court and unanimous Appellate Division correctly denied her application. (S.L. Benfica Transp., Inc. v Rainbow Media, Inc., 13 AD3d 348; People v Kitching, 78 NY2d 532; People v Gonzalez, 68 NY2d 424; Getlin v St. Vincent’s Hosp. & Med. Ctr. of N.Y., 117 AD2d 707; Batchu v 5817 Food Corp., 56 AD3d 402; DeFreese v Grau, 192 AD2d 1019.)
   OPINION OF THE COURT

Pigott, J.

We hold that when a missing witness charge is requested in a civil case, the uncalled witness’s testimony may properly be considered cumulative only when it is cumulative of testimony or other evidence favoring the party controlling the witness. It may not be considered cumulative simply because it would repeat or be consistent with an opposing party’s evidence.

I

On February 13, 2006, plaintiff Theresa DeVito, who was in her late 70s, was injured in a motor vehicle accident in New York City; a van operated by Dennis Feliciano and owned by Paragon Cable Manhattan “rear-ended” the car in which plaintiff was a passenger and her daughter Margaret was the driver. Plaintiff alleges that, as a result of the collision, she suffered serious injuries as defined in Insurance Law § 5102 (d), specifically fractures of her nose and back.

Plaintiff was taken by ambulance to a hospital, complaining of back pain. The hospital’s emergency department discharge checklist contained negative notations with respect to head trauma, facial trauma, and ear, nose and throat problems, and indicated that she walked with a steady gait. No X rays were taken of plaintiffs nose or back at that time.

According to plaintiff, she suffered back, head, and nasal pain in the weeks that followed her accident. Her primary care physician referred her to an ear, nose and throat (ENT) specialist, Dr. Ashutosh Kacker. As Dr. Kacker later recalled, plaintiff exhibited no pain upon palpation of her nose when examined on March 13, 2006, one month post accident. However, Dr. Kacker referred her for a CT scan, which indicated a nondisplaced fracture of the nose.

Approximately two months after the accident, plaintiff went to the emergency department at a hospital near her home in New Hampshire, again complaining of back pain. An MRI revealed a compression fracture of the T12 vertebra.

Plaintiff commenced this action against Feliciano and Paragon Cable Manhattan in 2006, alleging that their negligence caused her to suffer serious injuries within the meaning of Insurance Law § 5102 (d). These injuries, plaintiff alleges, include nasal and T12 fractures.

In June 2008, plaintiff consulted with Dr. Silvester Lango, an orthopedic surgeon, who ordered further MRI scans, and confirmed the T12 fracture. Given plaintiff’s age, Dr. Lango recommended that she consult pulmonary and heart specialists to determine whether she should undergo back surgery, which she declined.

Plaintiff was examined by four physicians designated by defendants pursuant to CPLR 3121, a neurologist, an orthopedist, an ENT specialist, and a radiologist.

Following discovery and depositions, plaintiff proceeded to a jury trial on damages in December 2008. Medical records from the two hospitals were admitted into evidence. The records from the hospital in New Hampshire indicated that in October 2005, four months before the motor vehicle accident, plaintiff had fallen and sustained a minor concussion and a fractured left wrist.

At the trial, both plaintiff and her daughter Margaret testified as to her medical condition. Plaintiff volunteered that she had fallen a couple of times since the accident, but did not mention the October 2005 fall that preceded it. Her daughter, meanwhile, was asked specifically about her mother’s October 2005 fall, and denied any knowledge of it.

Dr. Lango, the orthopedic surgeon, testified on behalf of plaintiff, telling the jury that plaintiff had sustained a T12 fracture; that a motor vehicle accident of the type alleged “would be the competent producing cause” of such an injury; and that both plaintiff’s T12 fracture and her nasal fracture were permanent injuries.

On cross-examination, however, Dr. Lango acknowledged that plaintiff was “not a good historian” of her health, in that she would not give him “all the details,” and that his determination “was based on limited and . . . incorrect information” (as defense counsel put it), insofar as plaintiff had not told him about her October 2005 fall. Moreover, on re-cross-examination, Dr. Lango conceded that, based on the records from the New York hospital, it appeared that plaintiff had not suffered an injury to her nose on the date of the car accident. But Dr. Lango found no inconsistency between plaintiff’s steady gait at the hospital a few hours after the motor vehicle accident and the allegation that she had suffered a T12 fracture in the accident.

Dr. James B. Naidich, a radiologist, also testified on behalf of plaintiff. Reviewing the CT scan and MRI, Dr. Naidich testified that plaintiff suffered from a fractured nose and a T12 compression fracture, superimposed on arthritic changes, and that both fractures were the result of the motor vehicle accident.

Dr. Naidich declined to speculate whether a person of plaintiffs age would have been able to walk with a steady gait if she had suffered a compression fracture only hours before. Informed on cross-examination of plaintiffs October 2005 fall, Dr. Naidich testified that “[t]he mechanism of the injury in February [2006] was more likely to cause a compression fracture than a patient who fell onto her outstretched hand and probably struck her head if she had a concussion.” He further testified that, given the extent of the compression shown on the MRI, the T12 fracture was “less likely” to have occurred in October 2005 than in February 2006.

Regarding the nasal fracture, Dr. Naidich testified that he would be “uneasy about . . . dismissing” plaintiffs allegations simply because the New York hospital’s emergency department records did not indicate nasal problems. However, Dr. Naidich conceded on re-cross-examination that it is possible that plaintiff sustained her nasal fracture at some point before the date of the car accident.

For its part, the defense read into the record portions of a transcript of the deposition of Dr. Kacker, plaintiff’s ENT specialist. Dr. Kacker had testified that when he examined plaintiff on March 13, 2006, she had shown no pain on palpation of the nose. His testimony was that nasal pain would “[p]robably” be expected if a patient had suffered a fracture of the nasal bone only a month before, and that he could not say with certainty that plaintiffs nasal fracture had been caused by the car accident. Dr. Kacker had also testified that his notes about plaintiff included a comment that she was “not a very reliable historian.”

Defendants declined to call any of the physicians who had examined plaintiff on their behalf. Plaintiffs counsel, in turn, requested a missing witness charge, under Pattern Jury Instructions (PJI) 1:75. A discussion followed outside the presence of the jury, during which Supreme Court mentioned a citation in the PJI to Getlin v St. Vincent’s Hosp. & Med. Ctr. of N.Y. (117 AD2d 707 [2d Dept 1986]). In Getlin, the Appellate Division ruled that a trial court properly refused to give a PJI 1:75 charge because the uncalled witness’s testimony would “have been merely cumulative of the testimony of the plaintiffs treating physician and . . . experts” (id. at 709). Supreme Court, addressing plaintiffs counsel, suggested that the defense physicians’ testimony “would be cumulative to what your doctors have already said.” The court denied the request for an uncalled witness charge, but permitted counsel to argue the issue on summation.

Defense counsel’s closing arguments focused on “a thread of dishonesty” throughout plaintiffs case, particularly with reference to plaintiffs October 2005 fall.

Plaintiff’s counsel, in his summation, exhorted the jury to draw the strongest inference against the defendants from the absence of their physician witnesses. “[D]on’t you think if these doctors had something to tell you that could help their case, that could show my client didn’t suffer these injuries as a result of this accident, don’t you think they would be here?” he asked, urging the jury “to draw the strongest inference based on the [failure] to call witnesses.”

Following deliberations, the jury returned a verdict in defendants’ favor, finding that the motor vehicle accident was not a substantial factor in bringing about plaintiffs nasal and T12 fractures.

The Appellate Division affirmed Supreme Court’s judgment dismissing plaintiffs complaint (84 AD3d 645 [2011]), holding that plaintiff had failed to satisfy the elements that are a prerequisite for receiving a missing witness charge and citing, inter alia, Getlin v St. Vincent’s Hosp. & Med. Ctr. of N.Y. We granted plaintiff leave to appeal from the Appellate Division’s order (19 NY3d 813 [2012]) and now reverse.

II

An “uncalled witness” or “missing witness” charge instructs a jury that it may draw an adverse inference based on the failure of a party “to call a witness who would normally be expected to support that party’s version of events” (People v Savinon, 100 NY2d 192, 196 [2003]). The charge, found in Pattern Jury Instructions at 1:75, advises a jury that if a party fails to offer a reasonable explanation for its failure to call a witness to testify on a question, then the jury “may, although [it is] not required to, conclude that the testimony of [the witness] would not support [that party’s] position on the question . . . and would not contradict the evidence offered by [the opposing party] on this question” (PJI 1:75). The jury is instructed that it “may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding” (Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73, 79 [1995]; see PJI 1:75).

The preconditions for this charge, applicable to both criminal and civil trials, may be set out as follows: (1) the witness’s knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the “control” of the party against whom the charge is sought, so that the witness would be expected to testify in that party’s favor; and (4) the witness is available to that party (see Savinon, 100 NY2d at 197; People v Macana, 84 NY2d 173, 177 [1994]; People v Gonzalez, 68 NY2d 424, 428 [1986]; see also e.g. Brueckner v Simpson, 206 AD2d 448 [2d Dept 1994]). Here, the defendants do not deny that their witnesses’ knowledge was material, or that their relationship with the uncalled witnesses makes it natural to expect that the witnesses would testify in their favor; and they do not deny the uncalled witnesses’ availability. Rather, defendants argue that the testimony of the uncalled witnesses would have been “cumulative of the plaintiffs treating physician and plaintiffs radiology expert,” relying on Getlin. We reject, as a matter of law, defendants’ analysis of whether the uncalled witnesses’ testimony would have been cumulative.

The appropriate analysis is found in Leahy v Allen (221 AD2d 88 [3d Dept 1996]), in which the Third Department held that “one person’s testimony properly may be considered cumulative of another’s only when both individuals are testifying in favor of the same party” (id. at 92), noting that to hold

“otherwise would lead to an anomalous result. Indeed, if the testimony of a defense physician who had examined a plaintiff and confirmed the plaintiffs assertion of a serious injury were deemed to be cumulative to the evidence offered by the plaintiff, thereby precluding the missing witness charge, there would never be an occasion to invoke such charge” (id.).

Accordingly, our holding is that an uncalled witness’s testimony may properly be considered cumulative only when it is cumulative of testimony or other evidence favoring the party controlling the uncalled witness.

In short, a witness’s testimony may not be ruled cumulative simply on the ground that it would be cumulative of the opposing witness’s testimony. Because the record indicates that the latter was Supreme Court’s rationale in this case, Supreme Court erred in denying plaintiffs request for a missing witness charge.

m

Nor can that error be deemed harmless. It is true that plaintiffs counsel conveyed to the jury, in his closing statements, much of the substance of the missing witness charge that plaintiff was denied, as it pertained to the present case. But a trial counsel’s appeal to the jury during summation is not ordinarily a substitute for the appropriate jury charge by the court; the error here was not cured by the summation. It is also true that defense counsel, through vigorous cross-examination, was able to cast doubt upon plaintiffs claim that the fracture of her nose was caused by the February 2006 car accident. But the testimony leading to the conclusion that plaintiffs T12 fracture was caused by the February 2006 car accident was not so thoroughly challenged. We are unable to conclude that the evidence so clearly supported a verdict in favor of the defendants that Supreme Court’s error did not prejudice a substantial right of the plaintiff.

Finally, we have considered defendants’ remaining arguments, and we conclude that they lack merit.

Accordingly, the order of the Appellate Division should be reversed, with costs, and a new trial ordered.

Chief Judge Lippman and Judges Graefeo, Read, Smith and Rivera concur; Judge Abdus-Salaam taking no part.

Order reversed, with costs, and a new trial ordered.