author: Abdus-Salaam, J.

text:
    [26 NE3d 1143, 3 NYS3d 288]
    In the Matter of Veronica P., Respondent, v Radcliff A., Appellant.
    Argued January 8, 2015;
    decided February 12, 2015

      POINTS OF COUNSEL

      George E. Reed, Jr., White Plains, for appellant.
    An appeal from an order of protection in a family offense proceeding does not become moot when the order expires. (Matter of Wissink v Wissink, 301 AD2d 36; Matter of Diallo v Diallo, 68 AD3d 411; Matter of Williams v Cornelius, 76 NY2d 542; Matter of Hearst Corp. v Clyne, 50 NY2d 707; Matter of Parameswar v Parameswar, 109 AD3d 473; Matter of Nair v Nair, 113 AD3d 688; Matter of McLaughlin v McLaughlin, 104 AD3d 1315; Matter of Petrie v Petrie, 100 AD3d 1423; Matter of Loomis v Yu-Jen G., 81 AD3d 1083; Matter of Justin CC. [George CC.—Tina CC.], 86 AD3d 725.)

      Eric Nelson, Staten Island, for respondent.
    I. The appeal should be dismissed as moot as the challenged order of protection has expired. (Matter of Grand Jury Subpoenas for Locals 17, 135, 257 & 608 of United Bhd. of Carpenters & Joiners of Am., AFL-CIO, 72 NY2d 307; Matter of Hearst Corp. v Clyne, 50 NY2d 707; Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 540 US 1017; Matter of Bickwid v Deutsch, 87 NY2d 862; Matter of Mikayla U., 266 AD2d 747; Matter of Jani Faith B. [Craig S.], 104 AD3d 508; Matter of Victor S. v Kareem J.S., 104 AD3d 405; Matter of Deivi R. [Marcos R.], 68 AD3d 498; Matter of Cheyenne J. [Christian J.], 103 AD3d 467; Matter of Yajaira J.L. v Robert Bruce Scott L., 99 AD3d 579.) II. Respondent met her burden of proving that a family offense was committed where she testified credibly that the appellant pushed her following an altercation and appellant stated that he should have pushed respondent so that she had fallen. (Matter of Everett C. v Oneida P., 61 AD3d 489; Matter of Melinda M. v Joseph P., 95 AD3d 553; Matter of Creighton v Whitmore, 71 AD3d 1141; Matter of F.B. v W.B., 248 AD2d 119; Matter of Smith v Smith, 308 AD2d 592; Matter of DosReis v Rousseau,
      85 AD3d 1028; Matter of Williams v Maise, 85 AD3d 933; Matter of Ford v Pitts, 30 AD3d 419; Matter of Jenna T. v Mark U., 82 AD3d 1512; Matter of Corey v Corey, 40 AD3d 1253.)
   OPINION OF THE COURT

Abdus-Salaam, J.

We are confronted with the question of whether an appeal from a contested order of protection issued by Family Court, based upon a finding that the subject individual has committed a family offense, is mooted solely by the expiration of the order. We hold that it is not.

In 2009, respondent Radcliff A. regularly stayed in an apartment with his aunt, petitioner Veronica E On September 22, 2009, petitioner filed a petition charging respondent with various family offenses under Family Court Act article 8, alleging that, on certain occasions during the previous month, respondent had assaulted and harassed her in the apartment. Petitioner sought an order adjudging respondent guilty of the charged offenses, as well as an order of protection against him pursuant to Family Court Act § 842. Family Court immediately granted petitioner a temporary order of protection and thereafter held a hearing on the petition. At the hearing, both sides called witnesses to testify to the relevant events, and respondent vigorously opposed the entry of an order of protection or any other adverse adjudication.

In an oral decision rendered on February 4, 2011, the court found that respondent was guilty of a family offense, concluding that he had committed acts constituting harassment in the second degree (see Penal Law § 240.26; see also Family Ct Act §812 [1]). That same day, the court entered a written two-year order of protection against respondent. The written order stated that a family offense petition had been filed in the case, listed the date of the petition and noted that the order was being issued after a hearing at which respondent had been present. The order directed respondent to stay away from petitioner’s home and to refrain from committing assault, harassment, stalking and certain other offenses against her.

Respondent appealed, but while the appeal was pending, the order of protection expired. The Appellate Division unanimously dismissed the appeal as moot, citing the expiration of the order (Matter of Veronica P. v Radcliff A., 110 AD3d 486, 486 [1st Dept 2013]). We granted respondent leave to appeal, and we now reverse.

As we have often emphasized, “[i]n general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; see Matter of New York State Commn. on Jud. Conduct v Rubenstein, 23 NY3d 570, 576 [2014]; Coleman v Daines, 19 NY3d 1087, 1090 [2012]). The ability of an appellate decision to directly and immediately impact the parties’ rights and interests is among the most important aspects of the mootness analysis, for otherwise the analysis might turn on inchoate or speculative matters, making mootness an unwieldy doctrine of a thousand “what ifs.” On the other hand, even where the resolution of an appeal may not immediately relieve a party from a currently ongoing court-ordered penalty or obligation to pay a judgment, the appeal is not moot if an appellate decision will eliminate readily ascertainable and legally significant enduring consequences that befall a party as a result of the order which the party seeks to appeal (see Matter of Bickwid v Deutsch, 87 NY2d 862, 863 [1995]; see also Rubenstein, 23 NY3d at 576).

In this case, the expiration of the order of protection does not moot the appeal because the order still imposes significant enduring consequences upon respondent, who may receive relief from those consequences upon a favorable appellate decision. Because the order of protection on its face strongly suggests that respondent committed a family offense, the court in a future criminal case or Family Court proceeding would likely rely on the order to enhance a sentence or adverse civil adjudication against respondent. In that regard, although the order does not declare respondent guilty of a family offense in so many words, the order notes that it was issued after a hearing in a family offense proceeding, and it expressly bars respondent from victimizing petitioner by committing a variety of crimes nearly identical to those charged in the family offense petition. Thus, a court examining the order may readily discern that Family Court found respondent guilty of committing a family offense against petitioner and issued an order of protection to prevent him from continuing to offend against her. Armed with that information, the court in a future case may increase the severity of any applicable criminal sentence or civil judgment against respondent. In the face of the substantial probability that the order of protection will prompt severely deleterious future legal rulings against respondent, an appellate decision in his favor will directly vindicate his interest in avoiding that consequence of the order.

The order of protection has other potential legal consequences that render it susceptible to appellate review. For example, in a future legal matter, an opposing party might be permitted to use the order of protection to impeach respondent’s credibility (see Bickwid, 87 NY2d at 863-864 [finding that the impeachment potential of the adjudication being appealed supported the conclusion that the appeal was not moot]). Furthermore, since the order of protection remains in a police computer database, albeit not in an active file (see Executive Law § 221-a [1], [6]; see also 9 NYCRR 486.2 [g]), respondent may face additional law enforcement scrutiny and an increased likelihood of arrest in certain encounters with the police (see 9 NYCRR 486.3 [n] [declaring information obtained from the database to be relevant to the decision to arrest an individual]).

Beyond its legal consequences, the order of protection places a severe stigma on respondent, and he can escape that stigma by prevailing on appeal (see Rubenstein, 23 NY3d at 577-578). As discussed above, the order essentially labels respondent a family offender and at least implies that he has committed an assault or harassment offense against his aunt. It follows that, should the order come to the attention of respondent’s business contacts, social acquaintances or other members of the public, those individuals would almost certainly view him as a domestic violence offender — a decidedly pejorative label — and cease their dealings with him. Perhaps most importantly, potential employers might ask respondent whether an order of protection has ever been entered against him, and he may be ethically or legally bound to answer in the affirmative, significantly curtailing his chances of getting a job.

In sum, given the totality of the enduring legal and reputational consequences of the contested order of protection, respondent’s appeal from that order is not moot. Furthermore, because our consideration of the merits would be inappropriate under the circumstances of this case, the matter should be remitted to the Appellate Division for consideration of the appeal (see Bickwid, 87 NY2d at 864).

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to that Court for further proceedings in accordance with this opinion.

Chief Judge Lippman and Judges Read, Pigott and Rivera concur; Judges Stein and Fahey taking no part.

Order reversed, without costs, and matter remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

      . Indeed, that is highly likely to occur, as the Department of Probation or prosecutors in a future proceeding will likely inform the court of the order and, quite possibly, the oral decision finding respondent guilty of a family offense (see Family Ct Act §§ 252, 815, 835 [b]; CPL 390.30 [1]).

      . Significantly, state regulations governing the computer database do not on their face prevent the police from taking action based on information contained in an inactive file, for the regulations permit or forbid the use of information in the database under certain circumstances without distinguishing between information in an active or inactive file (see generally 9 NYCRR 486.2 [g] [defining “computer information” that may be disseminated among the police via the database as, essentially, any data in the database, without distinguishing between active and inactive files]).

      . Respondent urges us to hold that an appeal from any expired order of protection, other than one entered upon stipulation, is not moot. But we express no view on the correctness of that proposed holding because it is unnecessary to resolve the case at hand.


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [26 NE3d 1151, 3 NYS3d 296]
    The People of the State of New York, Respondent, v Michael Diack, Appellant.
    Argued January 5, 2015;
    decided February 17, 2015

      POINTS OF COUNSEL

      Kindlon Shanks and Associates, Albany (Kathy Manley of counsel), for appellant.
    Both New York’s stated policy and its comprehensive sex offender management scheme show that Local Law No. 4-2006 of the County of Nassau is preempted by state law. (People v Santos, 25 Misc 3d 1212[A], 2009 NY Slip Op 52040[U]; Doe v County of Rensselaer, 24 Misc 3d 1215[A], 2009 NY Slip Op 51456[U]; People v Blair, 23 Misc 3d 902; People v Oberlander, 22 Misc 3d 1124[A], 2009 NY Slip Op 50274[U]; Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 NY2d 395; Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372; Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91; Consolidated Edison Co. of N.Y. v Town of Red Hook, 60 NY2d 99; People v De Jesus, 54 NY2d 465; Sunrise Check Cashing & Payroll Servs., Inc. v Town of Hempstead, 91 AD3d 126.)

      Lynn, Gartner, Dunne & Covello, LLP, Mineóla CKenneth L. Gartner, Joseph Covello and Tiffany D. Frigenti of counsel), and Carnell T. Foskey, County Attorney, Mineóla, for respondent.
    I. The Appellate Term properly held that conflict preemption does not apply because the state laws do not specifically permit the conduct prohibited by Local Law No. 4-2006 of the County of Nassau. (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91; Matter of Chwick v Mulvey, 81 AD3d 161; Matter of Lansdown Entertainment Corp. v New York City Dept. of Consumer Affairs,
      74 NY2d 761; People v Cook, 34 NY2d 100; Sunrise Check Cashing & Payroll Servs., Inc. v Town of Hempstead, 91 AD3d 126; DJL Rest. Corp. v City of New York, 96 NY2d 91; Consolidated Edison Co. of N.Y. v Town of Red Hook, 60 NY2d 99; People v Conti, 27 Misc 3d 453; Incorporated Vil. of Nyack v Daytop Vil., 78 NY2d 500.) II. The patchwork of state law in this area is not a “comprehensive and detailed regulatory scheme,” and thus, as evidenced by the legislative histories, the State has not occupied the field of sex offender regulation. (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91; DJL Rest. Corp. v City of New York, 96 NY2d 91; Consolidated Edison Co. of N.Y. v Town of Red Hook, 60 NY2d 99; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347; People v Blair, 23 Misc 3d 902; Incorporated Vil. of Nyack v Daytop Vil., 78 NY2d 500; Vatore v Commissioner of Consumer Affairs of City of N.Y., 83 NY2d 645; People v De Jesus, 54 NY2d 465.)

      New York Civil Liberties Union Foundation, New York City {Dana B. Wolfe, Mariko Hirose, Corey Stoughton, Amol Sinha, Jason Starr and Christopher Dunn of counsel), for New York Civil Liberties Union, amicus curiae.
    I. The proliferation of local residency restrictions across New York State creates a complex, overlapping, and incoherent scheme of regulation. (Terrance v City of Geneva, N.Y., 799 F Supp 2d 250; Doe v County of Rensselaer, 24 Misc 3d 1215[A], 2009 NY Slip Op 51456[U]; People v Blair, 23 Misc 3d 902; People v Oberlander, 22 Misc 3d 1124[A], 2009 NY Slip Op 50274[U].) II. Local residency restrictions are preempted because they prohibit what state laws permit. (Consolidated Edison Co. of N.Y. v Town of Red Hook, 60 NY2d 99; Matter of Lansdown Entertainment Corp. v New York City Dept. of Consumer Affairs, 74 NY2d 761; Matter of Williams v Department of Corr. & Community Supervision, 43 Misc 3d 356; People v Oberlander, 22 Misc 3d 1124[A], 2009 NY Slip Op 50274[U]; Terrance v City of Geneva, N.Y., 799 F Supp 2d 250.) III. Local residency restrictions are invalid under conflict preemption because they undermine the State’s policy concerns. (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91.)
   OPINION OF THE COURT

Pigott, J.

In 2006, Nassau County enacted Local Law No. 4-2006 (Local Law 4), which, as relevant here, prohibits registered sex offenders from residing within 1,000 feet of a school. In recent years, dozens of municipalities in this state have enacted similar laws that prohibit registered sex offenders from living within a certain distance of schools, day-care centers, parks, youth centers and other areas where children are likely to congregate. That such laws are proliferating at an accelerated rate is hardly surprising, given the significant interest involved, namely, the protection of children from sex offenders. Local governments have, understandably, relied on their police power in furthering that interest.

But a local government’s police power is not absolute. When the State has created a comprehensive and detailed regulatory scheme with regard to the subject matter that the local law attempts to regulate, the local interest must yield to that of the State in regulating that field. We hold that the State’s comprehensive and detailed statutory and regulatory framework for the identification, regulation and monitoring of registered sex offenders prohibits the enactment of a residency restriction law such as Local Law 4.

L

In 2001, defendant, a Nassau County resident, was convicted of the crime of possessing an obscene sexual performance by a child (Penal Law § 263.11). He served 22 months in prison and, upon his release from custody, was classified a level one sex offender under the Sex Offender Registration Act (Correction Law, art 6-C, § 168 et seq.). Defendant was discharged from parole on August 19, 2004. In July 2008, defendant reported his change of address to the New York State Division of Criminal Justice Services. Upon receiving this information, the Nassau County Police Department determined that defendant had moved to an apartment located within 500 feet of two schools.

Defendant was charged by information with a violation of Nassau County Local Law 4, which is codified in Nassau County Administrative Code § 8-130.6. That provision states, in relevant part, that “[i]t shall be unlawful for any registered sex offender to establish a residence or domicile where the property line of such residence or domicile lies within: 1) one thousand feet of the property line of a school; or 2) five hundred feet of the property line of a park” (Nassau County Administrative Code § 8-130.6 [a] [1], [2]). The code defines a “registered sex offender” as “a person who has been classified as a Level 1, Level 2 or Level 3 sex offender and who is required to register with the New York state division of criminal justice services, or other agency having jurisdiction,” pursuant to the Sex Offender Registration Act, regardless of whether the sex offender has actually registered (id. § 8-130.2).

Defendant moved to dismiss the information on the ground that Local Law 4 and section 8-130.6 are preempted by state law. The District Court of Nassau County granted the motion and dismissed the charge on the ground that Local Law 4 is preempted by New York’s “comprehensive statutory scheme for sex offenders.” The Appellate Term reversed and reinstated the information, holding that it could not discern any express or implied intention by the legislature through the enactment of the Sex Offender Registration Act (and other state laws) to occupy the entire field so as to prohibit the enactment of local laws imposing “residency restrictions for sex offenders who are no longer on probation, parole supervision, subject to a conditional discharge or . . . seeking public assistance” (41 Misc 3d 36, 39 [App Term, 2d Dept. 9th & 10th Jud Dists 2013]). A Judge of this Court granted defendant leave to appeal (22 NY3d 1155 [2014]).

IL

Although a local government is constitutionally empowered to enact local laws relating to the welfare of its citizens through its police power, it is prohibited from exercising that power through the adoption of local laws that are inconsistent with the New York State Constitution or any general law of the state (see NY Const, art IX, § 2 [c]; Municipal Home Rule Law § 10 [1] [i], [ii] [a] [12]). This doctrine of preemption is a significant restriction on a local government’s home rule powers because although localities are “invested with substantial powers both by affirmative grant and by restriction on State powers in matters of local concern, the overriding limitation of the preemption doctrine embodies ‘the untrammeled primacy of the Legislature to act . . . with respect to matters of State concern’ ” (Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372, 377 [1989], quoting Wambat Realty Corp. v State of New York, 41 NY2d 490, 497 [1977]).

Beginning with enactment of the Sex Offender Registration Act (SORA), the legislature has passed and the Governor has signed a series of laws regulating registered sex offenders, including the Sexual Assault Reform Act (SARA) in 2000, the Sex Offender Management and Treatment Act (SOMTA) in 2007, and chapter 568 of the Laws of 2008 (chapter 568). Because the legislature has not expressly stated an intent to occupy the field of sex offender residency restrictions in the aforementioned laws, our focus on this appeal is whether the legislature, by implication, has shown its intent to do so.

m.

The doctrine of field preemption prohibits a municipality from exercising a police power “when the Legislature has restricted such an exercise by preempting the area of regulation” (New York State Club Assn. v City of New York, 69 NY2d 211, 217 [1987], affd 487 US 1 [1988]; see Albany Area Bldrs. Assn., 74 NY2d at 377). Although field preemption may be “express” as evidenced by the legislature’s stated directive, it may also “be implied from a declaration of State policy by the Legislature or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area” (Consolidated Edison Co. of N.Y. v Town of Red Hook, 60 NY2d 99, 105 [1983] [citations omitted]). Intent to preempt the field may “be implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area” (Albany Area Bldrs. Assn., 74 NY2d at 377, citing Robin v Incorporated Vil. of Hempstead, 30 NY2d 347 [1972]).

The People assert that the statutes at issue (SORA, SARA, SOMTA and chapter 568) either do not specifically mention residency at all or only tangentially touch upon residency by, for example, limiting travel by parolees and those on probation in areas with schools or childcare centers, and other places where children may congregate. Such “piecemeal” provisions, the People contend, do not constitute the type of “comprehensive and detailed regulatory scheme” from which preemption can be inferred, and it necessarily follows that the legislature meant to leave to local governments the authority to impose residency restrictions on registered sex offenders who are not on parole or probation or subject to any type of supervision. But it is clear from the State’s continuing regulation with respect to identification and monitoring of registered sex offenders that its “purpose and design” is to preempt the subject of sex offender residency restriction legislation and to “occupy the entire field” so as to prohibit local governments from doing so (see Robin, 30 NY2d at 350). We therefore reverse the order of the Appellate Term.

IV

This State’s foray into sex offender management began in 1996 with the enactment of SORA, which addressed the legislature’s concern about the “danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior” (L 1995, ch 192, § 1). SORA, as its title makes clear, is a registration and notification statute directed at protecting the public from sex offenders, who, upon their release, are assigned a risk level dependent upon whether their risk for reoffending is low (level one), moderate (level two) or high (level three) (see Correction Law § 168-1 [6] [a]-[c]). The offender is required by law to register as a sex offender for a period that correlates with his particular risk level and designation (see id. §§ 168-f, 168-h [l]-[3]). The legislature has described SORA’s registration requirement as “a proper exercise of the state’s police power regulating present and ongoing conduct” of sex offenders (L 1995, ch 192, § 1 [emphasis supplied]). The registration and notification requirements are, of course, applicable statewide and are aimed at providing local citizens and law enforcement agencies with critical information regarding sex offenders residing within their respective jurisdictions (see Correction Law §§ 168-f, 168-j).

Four years later, in 2000, the legislature passed and the Governor signed the Sexual Assault Reform Act which, as relevant here, amended the Penal Law and the Executive Law to require the imposition of a mandatory condition prohibiting sex offenders placed on probation, conditional release or parole from entering upon school grounds or other facilities where children receive care (school grounds mandatory condition) (L 2000, ch 1). As part of that law, Penal Law § 65.10 was amended to require that a court imposing a sentence of probation or conditional discharge upon a person convicted of an enumerated sex offense, where the victim of the offense was under the age of 18 at the time the offense was committed, direct that the offender “shall refrain from knowingly entering into or upon any school grounds,” as that term is defined in Penal Law § 220.00 (14) (a), or any other facility or institution that is “primarily used for the care or treatment of persons under the age of eighteen” (Penal Law § 65.10 [4-a] [a]). At the same time, Executive Law § 259-c (14) was added to require the Parole Board to impose the school grounds mandatory condition on offenders of the aforementioned enumerated sex offenses who are released on parole, who are conditionally released or who are subject to a period of postrelease supervision (PRS). In 2005, the legislature extended the school grounds mandatory condition to sex offenders designated level three pursuant to Correction Law § 168-1 (6), and also adopted the broad definition of “school grounds” set forth in Penal Law § 220.00 (14) (a), (b) (see L 2005, ch 544; see also Executive Law § 259-c [14]).

The critical provision under SARA (as amended in 2005) is its reference to this definition of “school grounds”:

“(a) . . . any building, structure, athletic playing field, playground or land contained within the real property boundary line of a public or private elementary, parochial, intermediate, junior high, vocational, or high school, or (b) any area accessible to the public located within one thousand feet of the real property boundary line comprising any such school or any parked automobile or other parked vehicle located within one thousand feet of the real property boundary line comprising any such school. For the purposes of this section an ‘area accessible to the public’ shall mean sidewalks, streets, parking lots, parks, playgrounds, stores and restaurants” (Penal Law § 220.00 [14] [a], [b] [emphasis supplied]).

Courts have interpreted section 220.00 (14) as creating a residency restriction prohibiting certain classes of sex offenders from living within 1,000 feet of a school (see Terrance v City of Geneva, N.Y., 799 F Supp 2d 250, 255 [WD NY 2011]; People v Blair, 23 Misc 3d 902, 908 [Albany City Ct 2009]; People v Oberlander, 22 Misc 3d 1124[A], 2009 NY Slip Op 50274[U] [Sup Ct, Rockland County 2009]). The practical effect is that any sex offender who is subject to the school grounds mandatory condition is unable to reside within 1,000 feet of a school or facility as defined in Penal Law § 220.00 (14) (b). Therefore, SARA’s enactment, with its various amendments over the years, provides clear evidence of the State’s intention to occupy the field with regard to sex offender management, including where certain sex offenders may reside, and it is of no moment that the defendant in this appeal does not fall within the class of sex offenders who are subject to that mandatory condition.

Further evidence of the State’s intent to occupy the field of sex offender housing is found in the enactment of chapter 568 of the Laws of 2008. That chapter directed the Division of Parole (DOP), the Division of Probation and Correctional Alternatives (DPCA) and the Office of Temporary and Disability Assistance (OTDA) “to promulgate rules regarding the placement of sex offenders” to address the inability of those agencies “to locate suitable housing for convicted sex offenders” (Assembly Mem in Support, Bill Jacket, L 2008, ch 568 at 7, 2008 NY Legis Ann at 388). Because the lack of suitable housing created “an unacceptable high level of concentration of sex offenders in certain residential areas,” resulting in “an unnecessary risk to public safety,” chapter 568’s objective was to remedy that problem by allowing the DOP, DPCA and OTDA to consider certain relevant factors when “investigating and approving the residences of sex offenders” (id. [emphasis supplied]).

In approving chapter 568, the Governor stated that this statute was necessary to address the challenges sex offenders faced upon leaving prison in light of the shortage of affordable housing and the enactment of “well-intentioned” local ordinances that imposed “even more restrictive residency limitations on registered sex offenders” than the restrictions contained in SARA (Governor’s Approval Mem, Bill Jacket, L 2008, ch 568 at 6, 2008 NY Legis Ann at 388 [emphasis supplied]). The Governor further acknowledged that this chapter “recognizes that the placement of these offenders in the community has been and will continue to be a matter that is properly addressed by the State,” and that the chapter’s guidelines would “balance” the competing factors of public safety and the provision of suitable housing for sex offenders, leading “to a coordinated and comprehensive statewide policy that will both protect the public and ensure that there is suitable and appropriate housing available for sex offenders in every community in the State” (Governor’s Approval Mem, Bill Jacket, L 2008, ch 568 at 6, 2008 NY Legis Ann at 388-389 [emphasis supplied]).

Chapter 568 added new subdivisions to Executive Law §§ 243 and 259, and Social Services Law § 20, by requiring certain agencies to promulgate rules and regulations governing sex offender placement and housing (see Executive Law § 243 [4] [requiring the DPCA to give recommendations that include guidelines and procedures concerning “the placement of sex offenders designated as level two or level three offenders pursuant to (SORA),” and requiring the regulations to direct local probation departments to consider certain factors concerning placement of such offenders]; Correction Law § 203 [1] [requiring the State Commissioner of Corrections and Community Supervision to promulgate similar rules and regulations for level two and level three offenders who are released on presumptive release, parole, conditional release or PRS]; Social Services Law § 20 [8] [a] [requiring the OTDA to promulgate rules and regulations for the conditions under which local social services officials may determine the placement of level two or level three sex offenders who, upon their release, are expected to apply for, or receive, public assistance and who are determined to be in immediate need of shelter]).

Pursuant to these regulations, regardless of whether the level two or level three sex offender is sentenced to probation or is released, the legislature has determined that placement of the sex offender is dependent on a number of factors, all of which must be considered by the relevant agency. Such factors include the concentration of registered sex offenders in a given area or municipality; the number of registered sex offenders residing at a certain property; the proximity of entities that have vulnerable populations; the sex offender’s accessibility to family members or friends or other supportive services such as local sex offender treatment programs; and the availability of permanent, stable housing so as to reduce the possibility that the sex offender will be transient (see Executive Law § 243 [4] [a]-[e]; Correction Law § 203 [1] [a]-[e]; Social Services Law § 20 [8] [b] [1] -[iv]).

The regulations promulgated pursuant to Executive Law § 243 (4), Correction Law § 203 (1) and Social Services Law § 20 (8) (a) all recognize that the placement and housing of sex offenders “are areas that have been, and will continue to be, matters addressed by the State{,\ [and] . . . further the State’s coordinated and comprehensive policies in these areas” (9 NYCRR 365.3 [b] [emphasis supplied] [level two and level three sex offenders on probation]; 8002.7 [b]; 18 NYCRR 352.36 [a] [2] ). The regulations also acknowledge that the maintenance and location of acceptable housing for sex offenders constitutes “an enormous challenge that impacts all areas of the State” because sex offenders, upon release from prison, typically return to the communities where they previously resided and the proliferation of well-intentioned local ordinances imposing residency restrictions has hampered the ability of the State and local authorities to address the difficulty in finding appropriate housing for sex offenders (9 NYCRR 365.3 [d] [5]; 8002.7 [d] [5]; 18 NYCRR 352.36 [a] [4] [v]).

Further evidence of the legislative scheme to regulate sex offenders is the legislature’s enactment in 2007 of the Sex Offender Management and Treatment Act (L 2007, ch 7). This statute created a procedure for the confinement of certain sex offenders upon the expiration of their prison terms, resulting in their transfer to secure treatment facilities (see Mental Hygiene Law §§ 10.03 [e]; 10.07 [f]). Those offenders who are deemed not to require confinement are subjected to an outpatient regimen of strict and intensive supervision and treatment (id. § 10.07), including the potential designation of specific residences or types of residence by the Department of Corrections and Community Supervision (id. § 10.11 [a] [1]). SOMTA was enacted for the dual purposes of protecting the public from recidivistic sex offenders while ensuring that sex offenders have access to appropriate treatment (id. § 10.01 [a]-[c]).

V

The defendant in this appeal is a designated level one sex offender, is not on probation or parole, nor is he subject to conditional release or PRS. None of the aforementioned provisions that even touch upon residency or placement apply to him. Contrary to the People’s contention, however, that does not mean that the State has delegated to local governments the duty of enacting residency laws concerning registered sex offenders. Nor does it mean, as Appellate Term held, that “the legislature has chosen to limit its regulations over sex offenders and not to enact a comprehensive legislative scheme in the area of law concerning the residency restrictions of sex offenders who are not on parole, probation, subject to conditional discharge or seeking public assistance” (41 Misc 3d at 39). Rather, it is clear that the State has been continuously active in this field and, as such, it is evident that the State has chosen to occupy it.

What SORA, SARA, chapter 568 and SOMTA represent is a detailed and comprehensive regulatory scheme involving the State’s ongoing monitoring, management and treatment of registered sex offenders, which includes the housing of registered sex offenders. The monitoring and treatment of sex offenders does not end when the sex offender is released from prison. The State, through SORA, has devised a risk level system to identify the offenders who are most likely to reoffend. That system operates in tandem with SARA and chapter 568, which refer to risk levels in their determinations as to where certain registered sex offenders are allowed. In the case of probation or release from prison, state regulations require local probation and parole officials to consider factors delineated by the State in determining where level two and level three sex offenders are to be placed. It is not coincidental that SARA and chapter 568 do not address those registered sex offenders who are least likely to reoffend, i.e., those designated level one, and instead focus on those sex offenders who have been designated as exhibiting a moderate to high risk of recidivism, i.e., those designated level two and three, respectively. This top-down approach, with the State dictating the relevant factors that local officials are required to consider when placing such offenders in housing, plainly establishes that sex offender residency restrictions are within the exclusive bailiwick of the State and accentuates the State’s intent to occupy the field.

Residency restriction laws such as Local Law 4 encroach upon the State’s occupation of the field, “inhibit the operation of [this] State’s general law and thereby thwart the operation of [this] State’s overriding policy concerns” relative to the identification, monitoring and treatment of sex offenders (Albany Area Bldrs. Assn., 74 NY2d at 377 [citation and internal quotation marks omitted]). They also collide with state policy by prohibiting sex offenders who are on probation and parole from living in housing that has been approved by the Division of Probation and Correctional Alternatives and Division of Parole.

Local residency restriction laws also hinder statewide uniformity concerning sex offender placement. SORA, SARA, chapter 568 and SOMTA are statewide laws that apply to every community, including those particular laws and regulations regarding sex offender placement. Local Law 4 and similar laws are easily passed and, understandably, receive local support, but, as the State has acknowledged, communities in recent years have taken to shifting the burden of sex offender housing to neighboring communities, thereby frustrating the State’s policy that each community bear the burden (see 9 NYCRR 365.3 [d] [5] [noting that “it is not appropriate for any one community or county to bear an inappropriate burden in housing sex offenders because another community has attempted to shift its responsibility for those offenders onto other areas of the State”]; 8002.7 [d] [5] [same]; 18 NYCRR 352.36 [a] [4] [v]). As such, the unmistakable intent of the State to preempt the field prohibits their enactment.

Accordingly, the order of the Appellate Term should be reversed and the information dismissed.

Chief Judge Lippman and Judges Read, Rivera and AbdusSalaam concur; Judges Stein and Fahey taking no part.

Order reversed and information dismissed.

      . Sex offender residency laws have generated significant litigation in this state’s local and federal courts, with almost all of the challenges to their validity involving the issue of preemption (see People v Kramer, 45 Misc 3d 458 [Massapequa Park Just Ct 2014] [village law prohibiting a registered sex offender from residing within a one-mile radius of any school or park]; Budesheim v Southampton Town Police Dept., 2014 NY Slip Op 32278[U] [Sup Ct, Suffolk County 2014] [county local law prohibiting registered sex offenders from residing within a quarter mile of the property of any school, day-care center, playground or amusement park]; Doe v County of Rensselaer, 24 Misc 3d 1215[A], 2009 NY Slip Op 51456[U] [Sup Ct, Rensselaer County 2009] [county local law prohibiting level two and level three sex offenders from residing within 2,000 feet of a school or childcare facility]; People v Blair, 23 Misc 3d 902 [Albany City Ct 2009] [county local law prohibiting level two and level three sex offenders from residing within 1,000 feet of a school or childcare facility]; People v Oberlander, 22 Misc 3d 1124[A], 2009 NY Slip Op 50274[U] [Sup Ct, Rockland County 2009] [county law prohibiting sex offenders from residing, working or loitering within 1,000 feet of a school, childcare facility, playground, youth center or public swimming pool]; see also Moore v County of Suffolk, 2013 WL 4432351, 2013 US Dist LEXIS 115082 [ED NY, Aug. 14, 2013, No. 09-CV-2031 (PKC)] [county local law prohibiting registered sex offenders from living within a quarter of a mile of the property line of any school, licenced day-care center or playground]; Terrance v City of Geneva, N.Y., 799 F Supp 2d 250 [WD NY 2011] [city law prohibiting level two and level three sex offenders from residing within 1,000 feet of a school and 500 feet of a park, playground or day-care center]).

      . In light of our holding that this is an issue involving “field preemption,” we do not address defendant’s “conflict preemption” argument.

      . Those sex offenses are set forth in Penal Law articles 130 (“Sex Offenses”), 235 (“Obscenity and Related Offenses”), and 263 (“Sexual Performance by a Child”) and Penal Law §§ 255.25, 255.26, and 255.27 (Incest in the third, second and first degrees, respectively). Initially, SARA imposed the school grounds mandatory condition on an offender who committed “Incest” as it was then referred to in former Penal Law § 255.25. In 2006, SARA was amended to require the imposition of the mandatory condition to the newly-enacted offenses of incest in the first, second and third degrees (L 2006, ch 320).

      . When SARA, was enacted in 2000, the school grounds mandatory condition prohibited sex offenders from actually going inside the boundary line of a school. The 2005 SARA amendment broadened the school grounds mandatory condition to 1,000 feet beyond the boundary line.

      . Chapter 568 added Executive Law § 259 (5). That provision was repealed in 2011; the substance of that provision has since been relocated to Correction Law § 203 (1) (see L 2011, ch 62).

      . One factor that must be considered by local social services officials but need not be considered by the other two agencies is that the Department of Corrections and Community Supervision must investigate and approve any placement of a level two or level three sex offender by local social services officials (see Social Services Law § 20 [8] [b] [v]). Local social services officials need not, however, consider the availability of stable housing in determining placement.


author: Read, J. Pigott, J.

text:
    [26 NE3d 1167, 3 NYS3d 312]
    Frederick J. Platek et al., Respondents, v Town of Hamburg et al., Defendants, and Allstate Indemnity Company, Appellant.
    Argued January 15, 2015;
    decided February 19, 2015

      POINTS OF COUNSEL

      Dentons US LLP CRobert H. King, Jr., of the Illinois bar, admitted pro hac vice, of counsel), and Kenney Shelton Liptak Nowak LLP, Buffalo (Alan J. DePeters of counsel), for appellant.
    I. Allstate Indemnity Company’s motion for summary judgment should have been granted because the policy unambiguously excludes loss consisting of, or caused by water, regardless of its source. (Gellerman v Allstate Ins. Co., 124 Misc 2d 882; Reynolds v Standard Fire Ins. Co., 221 AD2d 616; Neuman v United Servs. Auto. Assn., 74 AD3d 925; Maroney v New York Cent. Mut. Fire Ins. Co., 5 NY3d 467.) II. The “ensuing loss” provision does not create coverage for this otherwise excluded water loss. (Borg-Warner Corp. v Insurance Co. of N. Am., 174 AD2d 24, 80 NY2d 753; Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208; Oot v Home Ins. Co. of Ind., 244 AD2d 62; Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475; Goldner v Otsego Mut. Fire Ins. Co., 39 AD2d 440; Narob Dev. Corp. v Insurance Co. of N. Am., 219 AD2d 454, 87 NY2d 804; Greenwich Capital Fin. Prods., Inc. v Negrin, 74 AD3d 413; Matter of Lipper Holdings v Trident Holdings, 1 AD3d 170; ITT Indus. v Factory Mut. Ins. Co., 303 AD2d 177; Schloss v Cincinnati Ins. Co., 54 F Supp 2d 1090, 211 F3d 131.)

      Lipsitz Green Scime Cambria LLP, Buffalo (Patrick J. Mackey and Joseph J. Manna of counsel), for respondents.
    I. The policy expressly covers sudden and accidental loss caused by an explosion. II. Contrary to Allstate Indemnity Company’s contention, the policy does not provide that a water loss must first occur before the explosion occurs for the exception to policy exclusion 4 to be triggered. (Gellerman v Allstate Ins. Co., 124 Misc 2d 882; Reynolds v Standard Fire Ins. Co., 221 AD2d 616; Neuman v United Servs. Auto. Assn., 74 AD3d 925; Pioneer Tower Owners Assn. v State Farm Fire & Cas. Co., 12 NY3d 302; Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640; Pepper v Allstate Ins. Co., 20 AD3d 633; Venigalla v Penn Mut. Ins. Co., 130 AD2d 974.) III. When applying the undisputed facts of this case to the exception to policy exclusion 4, it is reasonable to find that the Plateks’ loss is covered under the policy. (Goldner v Otsego Mut. Fire Ins. Co., 39 AD2d 440; Bebber v CNA Ins. Cos., 189 Misc 2d 42.) IV The exception to policy exclusion 4 does not supercede the exclusion because the Plateks’ loss is based upon events expressly provided for in the exception. (Novick v United Servs. Auto. Assn., 225 AD2d 676; Popkin v Security Mut. Ins. Co. of N.Y., 48 AD2d 46; Ender v National Fire Ins. Co. of Hartford, 169 AD2d 420; Rovelli v Allstate Ins. Co., 38 AD3d 241; Cantanucci v Reliance Ins. Co., 43 AD2d 622; Robert Dorsen, Inc. v Aetna Cas. & Sur. Co., 562 F Supp 495.)
   OPINION OF THE COURT

Read, J.

On September 7, 2010, a subsurface water main abutting the property of plaintiffs Frederick J. and Mary E. Platek ruptured, causing water to flood into and severely damage their home’s finished basement. Plaintiffs immediately made a claim under their homeowners’ insurance policy, which was issued by defendant Allstate Indemnity Company. The insuring agreement excludes property damage caused by water, with an exception for certain sudden and accidental direct physical losses; specifically, the section entitled “Losses We Do Not Cover Under Coverages A [Dwelling Protection] and B [Other Structures Protection]” provides as follows:

“[Allstate does] not cover loss to the property . . . consisting of or caused by:
“1. Flood . . .
“2. Water . . . that backs up through sewers or drains.
“3. Water . . . that overflows from a sump pump, sump pump well or other system designed for the removal of subsurface water . . .
“4. Water . . . on or below the surface of the ground, regardless of its sourcel,] [including] water . . . which exerts pressure on, or flows, seeps or leaks through any part of the residence premises.[]
“We do cover sudden and accidental direct physical loss caused by fire, explosion or theft resulting from items 1 through 4 listed above” (emphases added).

On September 9, 2010, Allstate disclaimed coverage, based on item 4 of the policy’s water loss exclusion. For the reasons that follow, we conclude that the policy’s unambiguous language excludes the water damage to plaintiffs’ home from coverage, and the exception does not nullify the water loss exclusion or render it ambiguous.

L

Plaintiffs commenced this action by summons and complaint dated and filed on November 23, 2010. They alleged that Allstate had improperly disclaimed coverage, causing them to suffer damages in excess of $100,000. Then on March 11, 2011, plaintiffs moved for summary judgment on their breach of contract claim, asking Supreme Court to declare that the policy covered their loss and to direct Allstate to pay their claim. Plaintiffs asserted that because they had “sustained a water intrusion loss” caused by “an explosion of the . . . water main,” their claim fell within the exception to the water loss exclusion.

In support of their motion, plaintiffs submitted the affidavit of an engineer, who stated that the water main “suddenly exploded from the internal water pressure being exerted on the pipe walls. Hence, the explosion resulted from internally pressurized water that was supposed to be contained in a buried underground pipe.” He opined that plaintiffs had therefore suffered “direct physical loss to their home and other property,” which was “caused by an explosion resulting from internally pressurized water suddenly and accidentally bursting from the underground pipe.”

By notice of motion dated April 7, 2011, Allstate opposed plaintiffs’ motion and cross-moved for summary judgment to dismiss the complaint against it on the ground that the policy did not cover plaintiffs’ claim, as a matter of law. Quoting the water loss exclusion, Allstate pointed out that the policy excludes property losses “consisting of or caused by ... 4. Water ... on or below the surface of the ground, regardless of its source[,] [including] water . . . which exerts pressure on, or flows, seeps or leaks through any part of the residence premises.” Allstate added that the exception did not apply because, under that provision’s wording, any “loss caused by . . . explosion” must “result[ ] from” the explosion. Here, by contrast, any explosion “occurred earlier, outside the residence premises, when the water main broke.”

By order granted May 6 and filed May 12, 2011, Supreme Court granted plaintiffs’ motion and denied Allstate’s cross motion, and declared that plaintiffs’ loss was covered under the policy and Allstate was required to pay the claim. Allstate appealed, and on July 6, 2012, the Appellate Division, with two Justices dissenting in part, modified Supreme Court’s order by vacating the declaration and otherwise affirmed (97 AD3d 1118 [4th Dept 2012]). All the Justices agreed that, since plaintiffs asserted a cause of action against Allstate for breach of contract, Supreme Court erred by “declaring” that plaintiffs’ claimed loss was covered under the policy and directing payment. The Court split on the issue of whether the policy’s sudden and accidental exception to the water loss exclusion applied.

With respect to the exception, the majority explained that

“Allstate characterizes [it] as an ‘ensuing loss’ provision, and . . . thus interprets [it] to provide that any initial loss to the insured’s property caused by the conditions set forth in item 4, i.e., ‘[w]ater . . . on or below the surface of the ground,’ is not covered under the policy but that, in the event that there is an ‘explosion . . . resulting from’ that initial loss, any secondary or ensuing loss caused by the explosion is covered. Plaintiffs disagree that there must be a secondary or ensuing loss, and they assert that the exception applies because there was an ‘explosion [of the water main] resulting from’ the conditions set forth in item 4, i.e., ‘[w]ater . . . below the surface of the ground,’ and causing ‘sudden and accidental direct physical loss’ to their property” (id. at 1120).

Concluding that both interpretations were reasonable, the majority held that the policy was therefore ambiguous and should be construed in favor of plaintiffs, the insureds.

The dissenting Justices observed that plaintiffs, not Allstate, bore the burden of demonstrating the applicability of the exception, and reasoned that, in any event, the policy’s language was not ambiguous. In their view,

“interpreting the exception to cover a loss where an explosion is caused by water outside the residence . . . contravenes the purpose of the water loss exclusion, which is to preclude coverage for losses caused by water entry into the residence. Rather, the language ‘resulting from’ is properly interpreted as referring to an ‘ensuing loss,’ i.e., a loss that follows or takes place after an excluded event. In other words, the exception refers to a separate occurrence — fire, explosion or theft — that results from the water damage to the residence, and does not refer to the water damage itself. For example, a fire or explosion triggered by water damage to a circuit breaker or appliance, or a theft that occurs in an empty house rendered uninhabitable by water darm age would constitute an ensuing loss” (id. at 1123-1124 [citations omitted]).

Plaintiffs and Allstate subsequently entered into a stipulation whereby the parties agreed that plaintiffs’ damages totaled $110,000. Allstate now appeals pursuant to CPLR 5601 (d) from the resulting judgment granted on January 13 and entered on January 14, 2014.

II

Three basic principles guide our analysis. First, “[i]n determining a dispute over insurance coverage, we first look to the language of the policy” (Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 221 [2002]). Concomitantly, we “construe the policy in a way that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect” (id. at 221-222 [internal quotation marks omitted and emphasis added]).

Second, although the insurer has the burden of proving the applicability of an exclusion (see Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311 [1984]), it is the insured’s burden to establish the existence of coverage (see Lavine v Indemnity Ins. Co., 260 NY 399, 410 [1933]). Thus, “[where] the existence of coverage depends entirely on the applicability of [an] exception to the exclusion, the insured has the duty of demonstrating that it has been satisfied” (Borg-Warner Corp. v Insurance Co. of N. Am., 174 AD2d 24, 31 [3d Dept 1992], lv denied 80 NY2d 753 [1992]; see also Northville Indus. Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 89 NY2d 621, 634 [1997]).

And finally, “[w]here a property insurance policy contains an exclusion with an exception for ensuing loss, courts have sought to assure that the exception does not supersede the exclusion by disallowing coverage for ensuing loss directly related to the original excluded risk” (Narob Dev. Corp. v Insurance Co. of N. Am., 219 AD2d 454, 454 [1st Dept 1995], lv denied 87 NY2d 804 [1995]; see also ITT Indus. v Factory Mut. Ins. Co., 303 AD2d 177, 177 [1st Dept 2003] [rejecting plaintiffs “untenable interpretation that the policy provided coverage for a resulting loss of an excluded risk”]; Montefiore Med. Ctr. v American Protection Ins. Co., 226 F Supp 2d 470, 479 [SD NY 2002] [where the policy excluded losses for faulty workmanship, the court rejected the insured’s claim for the collapse of a defectively designed facade, explaining that “(a)n ensuing loss provision does not cover loss caused by the excluded peril, but rather covers loss caused to other property wholly separate from the defective property itself’]).

In this case, plaintiffs’ loss occurred when water from a burst water main flowed onto their property, flooding the basement of their home. Accordingly, their loss clearly falls within item 4 of the water loss exclusion, which bars coverage for “loss to the property . . . consisting of or caused by . . .4. Water . . . on or below the surface of the ground, regardless of its source[,] [including] water . . . which exerts pressure on, or flows, seeps or leaks through any part of the residence premises” (see Neuman v United Servs. Auto. Assn., 74 AD3d 925, 926 [2d Dept 2010] [similarly-worded water loss exclusion precludes coverage for water damage to basement]; Harleysville Ins. Co. of N.Y. v Potamianos Props., LLC, 108 AD3d 1110, 1111-1112 [4th Dept 2013] [accord]).

Turning next to the sudden and accidental exception, this clause is properly characterized as an ensuing loss provision, which “provide [s] coverage when, as a result of an excluded peril, a covered peril arises and causes damage” (2 Ostrager & Newman, Insurance Coverage Disputes § 21.04 [h] at 1721 [17th ed 2015]). These provisions are a product of the San Francisco earthquake of 1906. In the wake of that natural disaster, some insurers argued that because earth movement was an excluded peril under property insurance policies, so was the damage caused by the devastating fires sparked by gas emitted from pipes broken by the shaking of the earth, even though fire was a covered peril. The California Legislature enacted statutes to prevent insurers from disclaiming coverage in the future under such circumstances. To comply with California law and similar statutes enacted by other states, insurers then added exceptions to their earthquake exclusions to preserve coverage for ensuing fires. Ensuing loss clauses were subsequently incorporated into other types of exclusions, for example, exclusions in all risks policies for faulty workmanship (see generally James S. Harrington, Lessons of the San Francisco Earthquake of 1906: Understanding Ensuing Loss in Property Insurance, 37 The Brief [No. 4] 28 [Summer 2008]; International Risk Management Institute, IRMI Online, Glossary of Insurance & Risk Management Terms, “ensuing loss clause,” http:// www.irmi.com/online/insurance-glossary/terms/e/ensuing-lossclause.aspx). Thus, true to its historical origins and purpose, the ensuing loss exception

“preserved] coverage for insured losses, such as the fires after the San Francisco earthquake, and [does not] create a ‘grant-back’ through which coverage may be had for the original excluded loss, whether it be an earthquake, a design defect, or any other excluded cause of loss” (Harrington, supra at 32).

Stated another way, an ensuing loss “at least requires a new loss to property that is of a kind not excluded by the policy” (id. at 31); it “[does not] resurrect coverage for an excluded peril” (id. at 34).

Plaintiffs nonetheless argue that the water damage to their basement was covered because it was “caused by an explosion of the . . . water main resulting from highly pressurized water located on or below the surface of the ground,” or, as stated slightly differently elsewhere in their brief, that “the explosion occurred as a result of water that was exerting pressure on the Property” or “the Residence.” But this is not what plaintiffs’ expert said. He opined that “highly pressurized water” exerted internal water pressure on the walls of a pipe buried off plaintiffs’ property, not that an explosion resulted from subsurface water “exert[ing] pressure on . . . any part of the residence premises” per item 4 of the water loss exclusion.

Additionally, plaintiffs ignore the water loss exclusion’s prefatory language, which specifies that “[Allstate does] not cover loss to the property . . . consisting of or caused by: [any of the four items of water loss]” (emphases added). This phrase is an integral part of each of the four items, and makes the sentence complete. Reading the policy as a whole, then, the exception would trigger coverage for any sudden and accidental direct physical loss caused by an explosion resulting from a loss to the property consisting of or caused by water on or below the surface of the ground of the residence premises, regardless of its source. As already noted, this does not describe what happened here according to plaintiffs’ own expert.

Further, it is unimportant that Allstate did not label the exception an “ensuing loss provision,” or use “ensuing from” instead of “resulting from” in the policy as “[t]hese clauses are common in all-risk policies, and while rarely identical they share more similarities than differences” (Fiess v State Farm Lloyds, 202 SW3d 744, 752 [Tex 2006]; id. at 752-753 [noting that a majority of jurisdictions, including New York, refuse to interpret an ensuing loss provision to make an excluded loss reappear as a covered loss]). Indeed, the phrases “ensuing loss” and “resulting loss” have been used interchangeably to mean a loss that follows chronologically or occurs after an excluded event (see Narob Dev. Corp., 219 AD2d at 454; TMW Enters., Inc. v Federal Ins. Co., 619 F3d 574, 579 [6th Cir 2010]; see also Paul T. Sullivan & Jeffrey A. Gordon, A Review of Ensuing Loss Case Law: 2010 to Present, 43 The Brief [No. 3] 18 [Spring 2014]).

Finally, plaintiffs take the position that even if “resulting from” does mean “follows,” it is not “irrational” for it also to mean “caused by.” The sudden and accidental exception to the water loss exclusion, however, uses the phrase “caused by” earlier when referring to “loss caused by .. . explosion” (emphasis added). The exception then uses a different phrase— i.e., “resulting from items 1 through 4” (emphasis added). The use of different terms in the same agreement (here, in the same sentence) implies that they are to be afforded different meanings (see Frank B. Hall & Co. of N.Y. v Orient Overseas Assoc., 48 NY2d 958, 959 [1979]; NFL Enters. LLC v Comcast Cable Communications, LLC, 51 AD3d 52, 60-61 [1st Dept 2008]).

In sum, interpreting the insurance policy as plaintiffs propose would contravene the water loss exclusion’s purpose, as expressed in unambiguous language, which is to preclude coverage for damages caused by the entry of water onto an insured’s property. As stated by the Supreme Court of New Hampshire when interpreting a policy excluding water loss, “[t]o apply the ensuing loss provision to provide coverage for what is essentially a flood would subvert the intent of the parties” (Bates v Phenix Mut. Fire Ins. Co., 156 NH 719, 723, 943 A2d 750, 754 [2008] [internal quotation marks omitted]). In the same way, permitting coverage under the facts of this case would force Allstate to insure a loss it did not contemplate and, indeed, affirmatively excluded.

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be reversed, with costs; plaintiffs’ motion for summary judgment denied; and Allstate’s cross motion for summary judgment granted.

Pigott, J.

(concurring). I agree with my colleagues that the exception to the water loss exclusion in the Allstate policy does not provide coverage for plaintiffs’ loss. I disagree, however, that the loss “clearly falls within item 4 of the water loss exclusion” (majority op at 694).

The homeowner’s insurance policy at issue is an “all risk” policy, which covers “sudden and accidental direct [and] physical loss to [the] property” unless specifically excluded (see Parks Real Estate Purch. Group v St. Paul Fire & Mar. Ins. Co., 472 F3d 33, 41 [2d Cir 2006]). There is little doubt that the policy at issue would, in the normal course, cover direct and physical loss from an “explosion.”

On plaintiffs’ motion for summary judgment, the only testimony with respect to what occurred in this case was plaintiffs’ expert opining that plaintiffs suffered direct water loss from an “explosion” of a water pipe (see generally Goldner v Otsego Mut. Fire Ins. Co., 39 AD2d 440, 442 [1972]). Allstate proffered no evidence to dispute this evidence.

Because plaintiffs’ argument to the court was predicated on the exception to the water loss exclusion of the policy, however, the courts did not address this primary coverage issue. I therefore concur with the result in this case.

Chief Judge Lippman and Judges Rivera and Abdus-Salaam concur; Judge Pigott concurs in result in a separate opinion; Judges Stein and Fahey taking no part.

Judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, plaintiffs’ motion for summary judgment denied and defendant Allstate Indemnity Company’s motion for summary judgment granted.

      . The policy defines “Dwelling” as “a one, two, three or four family building structure, identified as the insured property on the Policy Declarations, where [the policyholder] reside[s] and which is principally used as a private residence.”

      . The policy defines “Residence Premises” as “the dwelling, other structures and land located at the address stated on the Policy Declarations.”

      . Plaintiffs also sued the Town of Hamburg and the Erie County Water Authority, attributing the water main’s rupture to these defendants’ negligence.


author: Per Curiam.

text:
    [27 NE3d 465, 3 NYS3d 751]
    In the Matter of Jill A. Dunn, an Attorney, Appellant. Committee on Professional Standards, Respondent.
    Argued January 15, 2015;
    decided February 24, 2015

      POINTS OF COUNSEL

      Steinberg & Cavaliere, LLP, White Plains (.Benjamin Zelermyer and Steven A. Coploff of counsel), for appellant.
    The Appellate Division erred in giving collateral estoppel effect to a nonfinal decision of a United States magistrate judge which could not be appealed. (Matter of Levy, 37 NY2d 279; Matter of Keogh, 17 NY2d 479; Matter of Donegan, 282 NY 285; Matter of McGrath v Gold, 36 NY2d 406; Vavolizza v Krieger, 33 NY2d 351; S.T. Grand, Inc. v City of New York, 32 NY2d 300; Webb v Buckelew, 82 NY 555; Brown v Cleveland Trust Co., 233 NY 399; Ashe v Swenson, 397 US 436; Slater v American Min. Spirits Co., 33 NY2d 443.)

      Monica A. Duffy, Committee on Professional Standards, Albany (Michael G. Gaynor and Alison M. Coan of counsel), for respondent.
    The Third Department properly applied collateral estoppel to appellant’s disciplinary case. (Matter of Osborne, 1 AD3d 31; Matter of Flannery, 274 AD2d 940; Matter of Babigian, 247 AD2d 817; Matter of Kramer, 235 AD2d 87; Matter of Mac Truong, 2 AD3d 27; Ryan v New York Tel. Co., 62 NY2d 494; D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659; Gilberg v Barbieri, 53 NY2d 285; Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65; Matter of Yao, 231 AD2d 346.)
   OPINION OF THE COURT

Per Curiam.

The issue presented by this appeal is whether collateral estoppel applies in respondent attorney’s disciplinary proceeding to bar her from challenging the findings of a United States magistrate judge made in the context of a sanctions motion. Under the circumstances presented here, we hold that respondent did not have a full and fair opportunity to litigate the issue of her alleged misconduct.

The underlying federal action is one that was commenced by the Securities and Exchange Commission (SEC) against, among others, David Smith and the investment services firm of McGinn, Smith & Co., Inc., alleging that they had defrauded investors in violation of federal securities laws. In connection with that action, the SEC obtained a temporary restraining order (TRO) freezing Smith’s assets and those of his wife, Lynn, including the David L. and Lynn A. Smith Irrevocable Trust (see Securities & Exch. Commn. v Smith, 798 F Supp 2d 412, 417 [ND NY 2011]). The trust had been established for the benefit of the Smiths’ adult children.

The trust, represented by respondent Dunn, was granted permission to intervene in the SEC action (see Securities & Exch. Commn. v McGinn, Smith & Co., Inc., 752 F Supp 2d 194, 199 n 3 [ND NY 2010]). In a July 7, 2010 order, the court granted the trust’s motion to vacate the TRO as against it, concluding that David Smith did not have a beneficial interest in the trust (see id. at 218-219). The trust’s assets were therefore unfrozen.

On August 3, 2010, the SEC moved for reconsideration on the basis of newly discovered evidence — it had come to their attention that Smith did, in fact, have a beneficial interest in the trust. Specifically, they had discovered the existence of an annuity agreement, dated August 31, 2004, requiring the trust to disburse annual payments to the Smiths in the amount of $489,932, beginning in September 2015. In support of the motion, SEC attorneys asserted that during a July 22, 2010 telephone call, respondent Dunn had disclosed the existence of the annuity agreement. At the SEC’s request, the former trustee produced a copy of the annuity agreement on July 27, 2010.

Dunn submitted a declaration in opposition to the SEC’s motion, dated September 3, 2010, in which she maintained that she was neither in possession, nor even aware, of the existence of the annuity agreement prior to July 27, 2010, when it was produced by the former trustee. Dunn disputed the SEC’s assertion that she had mentioned the agreement during the telephone call, but stated that she had referred to the trust at issue as a “private annuity trust.”

On November 15, 2010, the evening before a scheduled hearing on the reconsideration motion, Dunn submitted a declaration correcting her prior statements. Dunn stated that, while preparing for the hearing, she discovered that she had an email from the trustee dated July 21, 2010, to which he had attached documents referencing the annuity agreement. She explained that she did not recall having seen those documents at the time she had prepared the prior declaration and that her attention had been diverted by the trust’s real estate closing, other client matters and personal issues. The following day, Dunn testified before the Magistrate at a hearing on the reconsideration motion and reiterated both that she had not made reference to any such agreement in the July 22 phone call with the SEC and that she had no knowledge of the annuity agreement prior to July 27.

The Magistrate granted reconsideration, granted the SEC’s motion for a preliminary injunction against the trust and granted the SEC leave to move for sanctions against, among others, Dunn (see Securities & Exch. Commn. v Wojeski, 752 F Supp 2d 220, 233 [ND NY 2010]). The Magistrate credited the testimony of the SEC attorney, but characterized Dunn’s testimony as “inconsistent and contradictory” (752 F Supp 2d at 226). The Magistrate found that Dunn had indeed disclosed the existence of the annuity agreement in the July 22, 2010 telephone conversation with the SEC attorneys (see 752 F Supp 2d at 228). The Magistrate further observed that Dunn had breached her continuing duty to produce the annuity agreement when she first became aware of it (see 752 F Supp 2d at 227-228).

In January 2011, the SEC moved for sanctions against Dunn. Each side submitted memoranda of law, but no hearing was held on the motion. The Magistrate granted the motion in part, finding that the SEC had established by clear and convincing evidence that the representation in Dunn’s September 3 declaration, that she was unaware of the existence of the annuity agreement until July 27, was knowingly false (see Securities & Exch. Commn. v Smith, 798 F Supp 2d at 430). The filing of the corrective declaration on the eve of the hearing on the reconsideration motion was deemed to have “mitigated only minimally” the act of filing the false declaration (798 F Supp 2d at 441-442). The Magistrate ordered that Dunn disgorge the disbursement she had received from the trust subsequent to July 21, determined that the appropriate sanction was a public admonishment and directed the clerk of the court to forward a copy of the decision to the Committee on Professional Standards for the Third Department (798 F Supp 2d at 441-442).

In December 2011, the Committee filed a petition consisting of a single charge alleging that Dunn had “engaged in fraudulent conduct prejudicial to the administration of justice adversely reflecting on her fitness as a lawyer by making false statements under oath in written declarations filed in federal court” in violation of Rules of Professional Conduct (22 NYCRR 1200.0) rules 8.4 (c), (d) and (h) and 3.3 (a) (1). The basis of the complaint was essentially the text of the Magistrate’s sanctions opinion.

Dunn filed an answer asserting that the Magistrate’s sanctions order should not be given preclusive effect and asking that the proceeding be held in abeyance pending the outcome of her appeal to the Second Circuit. The Third Department granted a series of adjournments for over a year while the appeal was sub judice. In March 2013, the Second Circuit dismissed Dunn’s appeal, finding that it lacked jurisdiction over the nonfinal sanctions order, which would be reviewable on appeal from the final order in the underlying action (Securities & Exch. Commn. v Smith, 710 F3d 87, 94 [2d Cir 2013]). To date, there is no final order in the federal securities action.

The Committee then moved for an order declaring that no factual issues were raised with respect to Dunn’s misconduct and fixing a time at which Dunn could be heard in mitigation. Dunn raised several arguments in opposition, including that she was not given a full and fair opportunity to contest the Magistrate’s decision. The Appellate Division granted the Committee’s motion, finding that collateral estoppel applied to the Magistrate’s sanctions order, and found Dunn guilty of the charged misconduct. After hearing evidence in mitigation, the Court determined that censure was the appropriate penalty (111 AD3d 1019, 1020 [3d Dept 2013]). This Court granted Dunn leave to appeal (22 NY3d 861 [2014]), and we now reverse.

It is well settled that “collateral estoppel precludes a party from relitigating ‘an issue which has previously been decided against [her] in a proceeding in which [she] had a fair opportunity to fully litigate the point’ ” (Kaufman v Eli Lilly & Co., 65 NY2d 449, 455 [1985] [citation omitted]). We have observed that “collateral estoppel is a flexible doctrine” and that a determination of whether a party had a full and fair opportunity to litigate in the prior proceeding requires a “practical inquiry into the realities of [the] litigation” (Gilberg v Barbieri, 53 NY2d 285, 292 [1981] [internal quotation marks and citation omitted]; Auqui v Seven Thirty One Ltd. Partnership, 22 NY3d 246, 255 [2013]). The party seeking to invoke collateral estoppel has the burden to show the identity of the issues, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate (see Kaufman, 65 NY2d at 456).

This case is distinguishable from Matter of Levy (37 NY2d 279, 281 [1975]), where we determined that it was neither unreasonable nor unfair to impose collateral estoppel in a disciplinary proceeding after the attorney had been convicted of a criminal offense. There, we held that the attorney would not be permitted to relitigate the issue of guilt after he was convicted following a criminal trial, at “which rigorous safeguards were imposed to insure against an unjust conviction” (Levy, 37 NY2d at 281).

By contrast, the determination here was made on papers— without cross-examination or the opportunity to call witnesses. Although Dunn did testify before the Magistrate, it was in the context of the motion for reconsideration and was for the purpose of determining whether the trust’s assets should be unfrozen. Essentially, the issue before the Magistrate there was whether the annuity agreement was new evidence that the SEC could not have discovered in a timely fashion through the exercise of due diligence. While the issue of whether Dunn had made false statements in her written declaration concerning her prior knowledge of that agreement may have been relevant, it was certainly not the focus of the hearing on the motion. The cursory nature of the sanctions proceeding itself failed to provide a full and fair opportunity to litigate the issue.

Contrary to the Committee’s argument that the inability to invoke collateral estoppel would cause extensive delay in attorney disciplinary proceedings, it is not necessary to await a final judgment in the underlying action. Rather, the Committee remains free to prove the alleged misconduct at issue. Further, we see no indication that the situation presented here will recur with any frequency. Moreover, as noted above, the doctrine of collateral estoppel has been applied to attorney disciplinary matters in the past and can continue to be applied where the necessary prerequisites have been met — i.e., where the attorney has had a full and fair opportunity to litigate in the prior proceeding.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to that Court for further proceedings in accordance with this opinion.

Chief Judge Lippman and Judges Read, Pigott, Rivera and Abdus-Saeaam concur; Judges Stein and Fahey taking no part.

Order reversed, with costs, and matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein.

       Dunn pointed out that David Smith had characterized the trust as a private annuity trust in his 2004 transmittal letter to the initial trustee. This argument was made in connection with her assertion that the SEC could have discovered the existence of the annuity agreement through the exercise of due diligence prior to July 7.


author: Rivera, J.

text:
    [28 NE3d 511, 5 NYS3d 332]
    The People of the State of New York, Respondent, v Steven Repanti, Appellant.
    Argued January 8, 2015;
    decided February 17, 2015

      POINTS OF COUNSEL

      William A. Gerard, Palisades, for appellant.
    The verdict is defective as a result of appellant’s conviction for both a greater and a lesser included offense. (People v Stanfield, 36 NY2d 467; People v Strong, 37 NY2d 568; People v Green, 56 NY2d 427; People v Moyer, 27 NY2d 252; People v Glover, 57 NY2d 61.)

      Thomas P. Zugibe, District Attorney, New City {Anthony R. Dellicarri and Itamar J. Yeger of counsel), for respondent.
    I. Defendant failed to preserve at trial his claim that the court should have considered harassment in the second degree as a lesser included offense of attempted assault in the third degree rather than consider them independently. (People v Hanley, 20 NY3d 601; People v Davis, 14 NY3d 20; People v Turriago, 90 NY2d 77; People v Pepper, 59 NY2d 353; People v Iannone, 45 NY2d 589; People v Kelly, 5 NY3d 116; People v Becoats, 17 NY3d 643; People v Parilla, 8 NY3d 654; People v Patterson, 39 NY2d 288; People v Michael, 48 NY2d 1.) II. The Appellate Term correctly held that the verdict was not defective because harassment in the second degree is not a lesser included offense of attempted assault in the third degree. (People v Moyer, 27 NY2d 252; People v Glover, 57 NY2d 61; People v James, 11 NY3d 886; People v Miller, 6 NY3d 295; People v Van Norstrand, 85 NY2d 131; People v Menchetti, 76 NY2d 473; People v Todd, 59 NY2d 694;
      People v Wheeler, 67 NY2d 960; People v Ford, 76 NY2d 868; People v Green, 56 NY2d 427.) III. Should this Court find that harassment in the second degree is a lesser included offense of attempted assault, it should merely reverse the harassment conviction but affirm the attempted assault conviction. (People v Hayes, 104 AD3d 1050; People v Rodrigues, 74 AD3d 1818; People v Moore, 41 AD3d 1149; People v Muhammad, 17 NY3d 532; People v Morris, 68 NY2d 799; People v Lee, 39 NY2d 388; People v Grier, 37 NY2d 847; People v Hayes, 104 AD3d 1050; People v Ortiz, 95 AD3d 1140; People v Davis, 91 AD3d 567.)
   OPINION OF THE COURT

Rivera, J.

Defendant Steven Repanti claims that he was unlawfully convicted of attempted assault in the third degree (Penal Law § 120.00) and harassment in the second degree (Penal Law § 240.26) because those counts are based on the same conduct and therefore, on the facts of his case, harassment must be treated as a lesser included offense of attempted assault. We disagree.

At the time of the underlying incident, defendant, complainant and her husband lived at the same senior community residence in the Town of Ramapo, Rockland County. Based on complainant’s allegations the People charged defendant by misdemeanor information with one count of attempted assault in the third degree (Penal Law §§ 120.00 [1]; 110.00). Approximately one year later, on the day of the nonjury trial, the People filed a superceding prosecutor’s information adding a charge of harassment in the second degree (Penal Law § 240.26 [1]). The People characterized the harassment count as a lesser included offense of the assault, erroneously citing People v Moyer (27 NY2d 252 [1970]). The court permitted the new filing over defendant’s objection to the facial sufficiency of the instrument.

According to the evidence presented at trial, complainant was ascending the staircase to her home when defendant exited a neighbor’s apartment, waited, then walked down the same staircase and forcefully “banged into” complainant with his shoulder. Complainant did not suffer any physical injuries because she fell back against her husband who was walking directly behind her. Defendant testified on his own behalf, disputing that he had any physical contact with complainant or her husband. During summations, counsel asserted that defendant was overcharged, contending that the harassment count “really fits within the lesser included” and, in any event, averred that the weight of the evidence was insufficient to convict on either. The prosecutor also noted that the harassment count was a lesser included offense, and submitted to the court that defendant should be convicted of both.

The court convicted defendant on both the attempted assault and second degree harassment charges. At sentencing defense counsel challenged the dual convictions, stating,

“I’m a little puzzled about a conviction for both charges. I think it’s one or the other.
“I had tended to believe the harassment would be the more appropriate based on the evidence. I don’t really think he could be convicted of both and sentenced for both.
“But in any event ... I would ask the Court to consider his circumstances.”

The court immediately sentenced defendant to a one-year term of probation for the attempted assault and imposed a $250 fine on the harassment conviction, along with a $125 surcharge.

The Appellate Term affirmed, rejecting defendant’s contention that harassment in the second degree is a lesser included offense of attempted assault in the third degree, based on the authority of this Court’s decision in People v Moyer (27 NY2d 252 [1970]) (see People v Repanti, 40 Misc 3d 131[A], 2013 NY Slip Op 51132[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]). A Judge of this Court granted defendant leave to appeal, and we now affirm (22 NY3d 1043 [2013]).

Defendant contends that the verdict is defective because under our prior case law he cannot be lawfully convicted of attempted assault and harassment where, as here, the counts are based on the same conduct — physical contact with the complainant — and distinguished solely by a different intent element. According to defendant, in such a case harassment must he treated as a lesser included offense, which thus bars his conviction for the greater offense of attempted assault. In response, the People argue that under this Court’s prior decisions, including Moyer, harassment is not a lesser included offense. We agree.

In deciding this appeal we do not write on a clean slate. Indeed, as both parties recognize, this Court has previously decided the standard by which to determine what constitutes a lesser included offense, and also held that harassment is not a lesser included offense of assault. Thus, we return to well-trodden ground in addressing defendant’s claims, and based on existing case law find his arguments to be without merit.

To establish that a count is a lesser included offense in accordance with CPL 1.20 (37), a defendant must establish “that it is theoretically impossible to commit the greater crime without at the same time committing the lesser” (People v Glover, 57 NY2d 61, 64 [1982]). Such determination requires the court to compare the statutes in the abstract, without reference to any factual particularities of the underlying prosecution (id.). Thus, the defendant must show that the offense “is an offense of lesser grade or degree and that in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense” (id. at 63). Since defendant cannot establish that in all circumstances it is impossible to commit attempted assault without also committing harassment, his challenge to his conviction on both these counts fails as a matter of law.

Our comparison of attempted assault and harassment establishes that these counts do not share a common intent element. To be guilty of attempted assault in the third degree requires proof that defendant “ engage [d] in conduct which tends to effect the commission of [assault],” with the “intent to cause physical injury to another” (Penal Law §§ 110.00, 120.00 [1]). A conviction for harassment requires that defendant, “with intent to harass, annoy or alarm another ...[,] strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same” (Penal Law § 240.26 [1]). In 1970, in Moyer, a majority of this Court concluded that harassment is not a lesser included offense of assault because “an additional element or fact must be shown to be present in a case of harassment,” requiring proof of an intent to harass, annoy or alarm, which is not a required element of an assault count (Moyer, 27 NY2d at 254). Instead, assault requires intent to injure, irrespective of whether the defendant also harbors an intent to harass, annoy or alarm (compare Penal Law § 120.00 [1] with Penal Law § 240.26).

It remains true today, as it did when Moyer was decided, that as an abstract concept it is possible to intend to annoy, harass or alarm without also intending to injure based on conduct that causes annoyance, harassment or alarm. Similarly, an intent to injure through physical contact involves a purpose of mind focused on a result more serious than that which may be obtained by the mere action of causing annoyance or alarm. For example, a person’s use of force to cause physical injury, such as pushing someone to break their arm or dislocate their shoulder, is not the same state of mind held by a person seeking to make physical contact to annoy or bother another person. Even if in some cases the proof is sufficient to establish a defendant’s intent to injure and intent to annoy, harass or alarm, the fact that there is a potential subset of cases where it is possible to be guilty of both offenses does not overcome the theoretical impossibility requirement that the elements align in all cases (see Glover, 57 NY2d at 64).

Defendant argues that the impossibility rule does not apply here because he was convicted of an attempted assault, not a completed assault as in Moyer. This is a distinction without significance for the purpose of our analysis because, as defendant acknowledges, the question is whether attempted assault and harassment share the same elements, which they do not. An attempted assault requires the intent to commit an assault, which carries a different intent from harassment.

Defendant seeks to further distinguish his case by relying on this Court’s decision in People v Stanfield (36 NY2d 467 [1975]) to argue that where two charges depend on the same conduct and differ only based on the degree of culpability, the lesser charge is a lesser included offense. In Stanfield, the Court held that criminally negligent homicide is a lesser included offense of the crime of manslaughter in the second degree (id. at 472). Defendant argues that his case falls squarely within what he calls the “Stanfield rule” because he was convicted based on the same conduct under counts that require a different intent.

Defendant’s contention that Stanfield somehow “clarified” this Court’s prior interpretation of CPL 1.20 (37) by creating an exception to the theoretical impossibility requirement ignores subsequent case law and the fact that Glover limited Stanfield. As Glover recognized, the theoretical impossibility requirement “is mandated by the provisions of CPL 1.20 (subd 37)”; thus Glover correctly rejected Stanfield to the extent the latter could be interpreted to disavow the “theoretical impossibility” requirement in favor of reliance on impossibility based solely on the particular facts in an individual defendant’s case (Glover, 57 NY2d at 64).

This Court’s decision in People v Green (56 NY2d 427 [1982]), decided the same day as Glover, confirms that harassment is not a lesser included offense of attempted assault. In Green, the Court held that it was error to deny a defendant charged with first degree intentional assault a lesser included offense charge of assault in the second degree, because the acts necessary to prove both crimes are the same and there is only a difference in the degree of culpability, namely intentional for first degree assault and reckless for second degree (56 NY2d at 435). Here, of course, the degree of culpability is the same as both counts require intent on the part of the defendant — intent to cause physical injury in the case of attempted of assault, versus intent to harass, annoy or alarm in the case of harassment.

Given this understanding of what constitutes a lesser included offense, not surprisingly, in People v Todd (59 NY2d 694 [1983]), decided after Glover and Green, this Court affirmed a lower court’s refusal to charge harassment as a lesser included offense of assault in the third degree (see 59 NY2d at 696, citing Glover and Moyer). We therefore find dispositive the authority of Moyer, Glover, Green and Todd, and conclude that harassment is not a lesser included offense of attempted assault. Accordingly, the order of the Appellate Term should be affirmed.

Chief Judge Lippman and Judges Read, Pigott and AbdusSalaam concur; Judges Stein and Fahey taking no part.

Order affirmed.

      . Given that defendant cannot establish theoretical impossibility, we need not consider whether under the particular facts of his case, defendant would be able to make the additional mandatory showing of “actual impossibility,” which requires that “there is a reasonable view of the evidence in the particular case that would support a finding that [the defendant] committed the lesser offense but not the greater” (see Glover, 57 NY2d at 63).

      . Defendant’s alternative argument, raised for the first time at oral argument, that the verdict is repugnant because the respective counts require a distinct mens rea is wholly unpreserved for our consideration (see People v Carter, 7 NY3d 875, 876 [2006]; CPL 470.05 [2]).