author: Pigott, J.

text:
    [33 NE3d 1282, 12 NYS3d 12]
    Flushing Savings Bank, FSB, Appellant, v Pierre Bitar, Also Known as Pierre M. Bitar, Respondent, et al., Defendants.
    Argued April 30, 2015;
    decided June 4, 2015

      POINTS OF COUNSEL

      Jaspan Schlesinger LLP, Garden City CLaurel R. Kretzing, Antonia M. Donohue and Christopher E. Vatter of counsel), for appellant.
    I. The denial of the deficiency judgment without a finding of fair market value was made in violation of RPAPL 1371 (2). (Central Hanover Bank & Trust Co. v Eisner, 276 NY 121; Marine Midland Bank v Harrigan Enters., 118 AD2d 1035; Sanders v Palmer, 68 NY2d 180; Frank v Davis, 135 NY 275; New York Life Ins. Co. v Guttag Corp., 265 NY 292; Sarasota, Inc. v Homestead Acres at Greenport, 249 AD2d 290; Columbus Realty Inv. Corp. v Gray, 240 AD2d 529; Ogdensburg Sav. & Loan Assn. v Moore, 100 AD2d 679; BTC Mtge. Invs. Trust 1997-SI v Altamont Farms, 284 AD2d 849; Diaz v New York Downtown Hosp., 99 NY2d 542.) II. The unrebutted affidavit of the appraiser was sufficient to establish the fair market value of the property. (Golden City Commercial Bank v Hawk Props. Corp., 240 AD2d 218; Aaron v Kent, 182 AD2d 960; Turner v Meierdiercks, 106 AD2d 445; Broward Natl. Bank of Fort Lauderdale v Starzec, 30 AD2d 603; Union Chelsea Natl. Bank v Rumican 190 Corp., 257 AD2d 463; Central Hanover Bank & Trust Co. v Eisner, 276 NY 121; East Coast Props. v Galang, 308 AD2d 431; Union Natl. Bank v Johnson, 209 AD2d 775.) III. Assuming the affidavit was insufficient, the court should have directed a hearing. (BTC Mtge. Invs. Trust 1997-SI v Altamont Farms, 284 AD2d 849; Trustco Bank v Gardner, 274 AD2d 873; Hudson City Sav. Inst. v Drazen, 153 AD2d 91; Eastern Sav. Bank, FSB v Brown, 112 AD3d 668; New York Life Ins. Co. v Guttag Corp., 265 NY 292; City Bank Farmers Trust Co. v Ardlea Incorporation, 267 NY 224.) IV. Reversal by this Court is warranted.
    Respondent pro se precluded.

      Eric T. Schneiderman, Attorney General, New York City (Mark H. Shawhan, Barbara D. Underwood and Steve C. Wu of counsel), for Attorney General of the State of New York, amicus curiae.
    I. A conclusory appraiser’s affidavit does not satisfy the foreclosing plaintiff’s prima facie burden of proving fair market value. (National Bank of N. Am. v Systems Home Improvement, 69 AD2d 557, 50 NY2d 814; BTC Mtge. Invs. Trust 1997-SI v Altamont Farms, 284 AD2d 849; Marine Midland Bank v Harrigan Enters., 118 AD2d 1035; Matter of County Dollar Corp. v City of Yonkers, 97 AD2d 469; Diaz v New York Downtown Hosp., 99 NY2d 542; Amatulli v Delhi Constr. Corp., 77 NY2d 525; Matter of New York City Tr. Auth. [Superior Reed & Rattan Furniture Co.], 160 AD2d 705; Vircillo v State of New York, 24 AD2d 534; Shore Haven Apts. No. 6 v Commissioner of Fin. of City of N.Y., 93 AD2d 233.) II. A foreclosing plaintiff is not entitled to submit additional evidence of fair market value if its initial papers failed to provide any support for its valuation. (Farmers’ Loan & Trust Co. v Siefke, 144 NY 354; Silberstein v

      Presbyterian Hosp. in City of N.Y., 96 AD2d 1096; Crady v Newcomb, 142 AD2d 940; Shore Haven Apts. No. 6 v Commissioner of Fin. of City of N.Y., 93 AD2d 233; Fredenburgh v State of New York, 26 AD2d 966; Matter of Schaich, 55 AD2d 914; Lucent Tech., Inc. v Gateway, Inc., 580 F3d 1301.)
   OPINION OF THE COURT

Pigott, J.

Real Property Actions and Proceedings Law § 1371 delineates the steps a lender must take in a mortgage foreclosure action before securing a deficiency judgment against a borrower (RPAPL 1371 [l]-[4]). On this appeal, we examine not only the sufficiency of the proof that a lender must submit in order to establish its entitlement to a deficiency judgment, but also what actions a court must take in the event the lender fails to meet its burden in the first instance.

L

Plaintiff Flushing Savings Bank, FSB (FSB) was the owner and holder of a note secured by a mortgage on commercial property in Brooklyn. Defendant Pierre Bitar, the mortgagor and obligor on the note, defaulted under the terms of the note. FSB commenced a mortgage foreclosure action against Bitar (and others) in March 2010. Neither Bitar nor any of the other named defendants answered the complaint.

Supreme Court appointed a referee to compute the amount due FSB and conduct a sale of the property. The referee stated in his December 13, 2010 report that FSB was owed $690,642.23. In March 2011, Supreme Court confirmed the referee’s report, granted FSB a judgment of foreclosure, awarded FSB $690,642.23 plus interest and fees, advances, costs and disbursements, and directed that the property be sold at a public auction. Supreme Court further ordered that should the proceeds of the sale be insufficient to pay the amount due and owing to FSB, FSB could recover the deficiency from Bitar in accordance with RPAPL 1371.

On August 11, 2011, the property was sold at auction to FSB (the highest bidder) for $125,000. The referee delivered the deed to FSB on September 13, 2011. According to the referee’s report of sale issued on that date, FSB was owed $793,724.75 at the time of sale less FSB’s $125,000 bid, leaving a deficiency of $668,724.75. FSB retained a New York State licensed appraiser to inspect the interior and exterior of the premises. The appraiser concluded that the fair market value of the property as of the date of sale was $475,000.

On November 23, 2011, FSB moved for an order confirming the referee’s report of sale and for a deficiency judgment against Bitar in the amount of $318,724.75, representing the outstanding amount of $793,724.75 less the alleged fair market value of $475,000. In addition to its submission of the referee’s report, FSB proffered a four-paragraph affidavit from its licensed appraiser, who stated that he was “well acquainted with real estate values in [Kangs] County” and that he had “made a personal exterior and interior inspection of the premises.” As to the property’s fair market value, the appraiser opined that

“[b]ased on said inspection and after reviewing comparable sales, examination of the neighborhood, market and general economic trends, comparable rentals, expense data and subject to the reasonable assumption that there have not been substantial changes in occupancy and condition, deponent is of the opinion that the market value of the premises as of August 11, 2011, was $475,000, which valuation is consistent with the valuation of the premises as of October 5, 2011, the date of inspection.”

Bitar, although personally served with the motion papers, did not oppose FSB’s motion.

In March 2012, Supreme Court granted FSB’s motion to confirm the referee’s report, but denied its motion for a deficiency judgment, holding that the four-paragraph affidavit from the appraiser was “conclusory” and lacked “any specific information regarding how he reached his fair market value determination.” Supreme Court held that FSB failed to meet its burden of establishing the fair market value of the premises. FSB unsuccessfully moved for renewal and reargument, with the court holding that FSB failed to identify new facts that would have changed the court’s prior determination and also failed to identify any facts or law that the court had overlooked.

The Appellate Division affirmed, holding that “Supreme Court was entitled to reject the opinion of [FSB’s] appraiser as without probative value in light of the lack of evidentiary foundation set forth in his affidavit” (106 AB3d 690, 691 [2d Dept 2013] [citations omitted]). We granted FSB leave to appeal.

IL

FSB asserts that its appraiser’s affidavit was sufficient to establish the property’s fair market value because there was no conflicting evidence of market value presented to Supreme Court and that, absent any opposition to FSB’s submission, Supreme Court should have accepted its appraiser’s valuation. We disagree.

Under RPAPL 1371, a lender is entitled to move for a deficiency judgment against the borrower so long as the motion is brought on notice to the borrower “within ninety days after the date of the consummation of the sale by the delivery of the proper deed of conveyance to the purchaser” (RPAPL 1371 [2]). The deficiency judgment represents “the difference between the amount of indebtedness on the mortgage and either the auction price at the foreclosure sale or the fair market value of the property, whichever is higher” (BTC Mtge. Invs. Trust 1997-SI v Altamont Farms, 284 AD2d 849, 849-850 [3d Dept 2001] [citations omitted]). It is the lender who bears the initial burden of demonstrating, prima facie, the property’s fair market value as of the date of the auction sale (see National Bank of N. Am. v Systems Home Improvement, 69 AD2d 557, 562 [2d Dept 1979], affd for reasons stated below 50 NY2d 814 [1980]; see also Eastern Sav. Bank, FSB v Brown, 112 AD3d 668, 670 [2d Dept 2013]; BTC Mtge. Invs. Trust 1997-SI, 284 AD2d at 850; Marine Midland Bank v Harrigan Enters., 118 AD2d 1035, 1037 [3d Dept 1986]).

We agree with Supreme Court that FSB failed to meet its initial burden of establishing the fair market value of the property. The appraiser’s four-paragraph affidavit consisted of two paragraphs that briefly covered the appraiser’s experience and qualifications. The remaining paragraphs set forth the address of the property and the date the appraiser conducted the inspection, and contained conclusory references to “comparable sales” and an examination of “the neighborhood, market and general economic trends, comparable rentals [and] expense data.” Although the appraiser opined that the property had a fair market value of $475,000, that opinion was unsupported by any detailed analysis of the data and valuation criteria he utilized in reaching his valuation. Nor did the appraiser affix to his affidavit any evidence substantiating his opinion, which would have assisted the court in reaching a determination as to the property’s fair market value. Moreover, although the appraiser claimed to have examined the interior and exterior of the building, he made no attempt to describe the building’s condition or what his inspection of the property revealed. Simply put, the appraiser’s affidavit consisted of little more than conclusory assertions of fair market value, and, therefore, Supreme Court properly refused to accept the appraiser’s valuation.

Contrary to FSB’s contention, it is of no moment that Bitar failed to submit any evidence in opposition to the motion. FSB had the initial burden of establishing fair market value through the submission of sufficient proof that would have permitted the court to render a determination as to the property’s fair market value. Absent such proof, Supreme Court had no basis to award FSB a deficiency judgment, notwithstanding the fact that FSB’s submission was unrebutted.

m.

FSB next contends that, once Supreme Court determined that the appraiser’s affidavit was insufficient to meet FSB’s burden, it should not have denied the motion, but rather, should have directed FSB to submit additional proof or taken additional steps in order to make a fair market value determination. We agree.

RPAPL 1371 (2) directs that, when a lender makes a motion for a deficiency judgment,

“the court, whether or not the respondent appears, shall determine, upon affidavit or otherwise as it shall direct, the fair and reasonable market value of the mortgaged premises as of the date such premises were bid in at auction or such nearest earlier date as there shall have been any market value thereof and shall make an order directing the entry of a deficiency judgment” (emphases supplied).

This provision is a directive that a court must determine the mortgaged property’s “fair and reasonable market value” when a motion for a deficiency judgment is made. As such, when the court deems the lender’s proof insufficient in the first instance, it must give the lender an additional opportunity to submit sufficient proof, so as to enable the court to make a proper fair . market value determination.

Here, FSB failed to meet its burden in the initial application. However, rather than denying the deficiency judgment motion outright, Supreme Court should have permitted FSB to submit additional proof establishing fair market value (see e.g. Eastern Sav. Bank, FSB, 112 AD3d at 671 [remitting the matter to Supreme Court for further proceedings, with said proceedings including the lender’s submission “of proof in admissible form describing the subject premises and comparable sales and market data”]; see also UFP Atl. Div., LLC v Route 299 Retail Ctr., LLC, 2014 WL 2986864, *3-4, 2014 US Dist LEXIS 89927, *10-11 [ND NY, July 2, 2014, No. L12-CV00053 (MAD/ATB)] [staying motion for deficiency judgment and directing holder of mortgage note to submit evidence establishing fair market value of the property within 30 days of the order, and ordering dismissal of the motion for deficiency judgment if note holder failed to submit such evidence]).

It is, of course, within the court’s discretion to elucidate the type of proof it requires so it can render a proper determination as to fair market value. The court may also order a hearing if it deems one necessary. In proceedings that are governed by section 1371, the court is in the best position to determine the type of proof that will allow it to comply with the directives of that section. Lenders seeking deficiency judgments, however, must always strive to provide the court with all the necessary information in their first application.

Accordingly, the order of the Appellate Division should be modified, without costs, by remitting to Supreme Court for further proceedings in accordance with this opinion, and, as so modified, affirmed.

Chief Judge Lippman and Judges Read, Rivera, AbdusSalaam, Stein and Fahey concur.

Order modified, without costs, by remitting to Supreme Court, Kings County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      . The New York State Attorney General has submitted an amicus curiae brief in opposition to FSB’s arguments on the appeal to this Court.

      . We express no opinion as to what steps a court may take in the event the lender, having been given an additional opportunity to submit the necessary and relevant proof, nonetheless submits inadequate proof in the second instance.


source: Caselaw Access Project

author: Rivera, J.

license: Public Domain

text:
    [33 NE3d 1275, 12 NYS3d 6]
    The People of the State of New York, Respondent, v Jafari Lamont, Appellant.
    Argued March 26, 2015;
    decided May 14, 2015

      POINTS OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), for appellant.
    The People failed to present legally sufficient evidence to establish that Jafari Lamont possessed a larcenous intent. (People v Miller, 87 NY2d 211; People v Kennedy, 47 NY2d 196; People v Dupree, 91 AD2d 1071; People v Bracey, 41 NY2d 296; People v Smith, 79 NY2d 309; People v Mateo, 13 AD3d 987; People v Miller, 87 NY2d 211; People v Lewie, 17 NY3d 348; Jackson v Virginia, 443 US 307; People v Contes, 60 NY2d 620.)

      Sandra Doorley, District Attorney, Rochester CLeah Mervine and Erin Tubbs of counsel), for respondent.
    Defendant’s attempted robbery conviction is based on legally sufficient evidence. (People v Bleakley, 69 NY2d 490; People v Mateo, 2 NY3d 383; People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307; People v Reed, 22 NY3d 530; People v Bracey, 41 NY2d 296; People v Miller, 87 NY2d 211; People v Calabria, 3 NY3d 80; People v Grassi, 92 NY2d 695; People v Rodriguez, 17 NY3d 486.)
   OPINION OF THE COURT

Rivera, J.

Defendant Jafari Lamont challenges his conviction for two counts of attempted robbery in the second degree on the basis that the evidence was legally insufficient to establish he had the specific intent to steal. We conclude that defendant’s conduct and the surrounding circumstances provided legally sufficient evidence of the requisite intent to support defendant’s conviction.

According to the undisputed evidence at defendant’s nonjury trial, at approximately 6:30 a.m., before the morning business hours, defendant and an accomplice appeared armed and masked at the rear door of a Wendy’s fast-food establishment. The two lone employees who were preparing to open heard loud knocking, and one of them checked the security camera and saw defendant and his accomplice outside the back, knocking on the door. The employee did not let the two men in, but instead called his supervisor and 911.

A police officer responded in a marked patrol car, and as he pulled up with his car lights shining on the back of the Wendy’s he saw two men hiding behind some stacked up crates. Upon seeing the car lights, defendant and his accomplice ran in different directions, with defendant running towards the officer.

The officer saw defendant dressed in dark blue clothing, wearing a black knit hat, black gloves and a black mask over his face, and observed defendant carrying what appeared to be a black handgun. When the officer drew his weapon, defendant ran towards the nearby highway. The officer followed in his car and later tracked defendant on foot, at which point a K-9 officer responded to the first officer’s call for assistance. During the chase, the officers recovered a black knit hat and a black glove. When the officers eventually caught up with defendant they found him hiding between two buildings, and in possession of a backpack which contained a pair of green, black and yellow gloves.

A subsequent search in the vicinity of the Wendy’s led police to discover two BB guns. The police found one about 10 feet from the establishment’s rear door, near where the first officer initially spotted defendant. The police recovered the other from defendant’s car, which the police found parked in a lot about 50 yards away from the Wendy’s.

The People charged defendant with two counts of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [1], [2] [b]) and one count of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [1] [d]). At trial, defendant stipulated to the introduction into evidence of footage from the security camera, which showed the two masked men looking in and knocking on the Wendy’s rear door, while holding what appeared to be guns. He further stipulated that he was one of the masked men and that he was the person who ran towards the officer and who was later apprehended by the police.

In addition to the police testimony, the People relied on statements from the two coworkers and the supervisor who were on the morning shift the day of the incident. These individuals testified that they did not recognize defendant’s name, and that the Wendy’s was closed when defendant attempted to enter. They also confirmed what was obvious from the security footage, that defendant and his accomplice were carrying what appeared to be firearms, and wore masks and gloves.

County Court convicted defendant of both the attempted robbery counts and acquitted him of attempted burglary. A majority of the Appellate Division affirmed, concluding, as relevant to this appeal, that there was legally sufficient evidence to support defendant’s conviction on the robbery counts (People v Lamont, 113 AD3d 1069 [4th Dept 2014]). Two Justices dissented, arguing that the evidence was insufficient to establish beyond a reasonable doubt that defendant had the specific intent to steal, as required for attempted robbery. A Justice of the Appellate Division granted defendant leave to appeal (22 NY3d 1160 [2014]). We now affirm.

On appeal to us, the entirety of defendant’s challenge to his attempted robbery conviction is his allegation that the evidence was legally insufficient to establish the requisite intent to steal. He contends that while the evidence may establish what appears to be some type of attempted criminal behavior, it does not support a valid inference that defendant intended to steal. The People respond that defendant’s intent to commit robbery is established by defendant’s conduct and the surrounding circumstances.

The law is well-established that “[a] verdict is legally sufficient if there is any valid line of reasoning and permissible inferences that could lead a rational person to conclude that every element of the charged crime has been proven beyond a reasonable doubt” (People v Delamota, 18 NY3d 107, 113 [2011]). Where the defendant has been convicted, “[t]he proof must be viewed in the light most favorable to the prosecution,” recognizing that “the People are entitled to all reasonable evidentiary inferences” (Delamota, 18 NY3d at 113). As this Court has recognized in the past, “[t]he element of intent is rarely proved T>y an explicit expression of culpability by the perpetrator’; and ‘[competing inferences to be drawn [regarding the defendant’s intent], if not unreasonable, are within the exclusive domain of the finders of fact, not to be disturbed’ by us” (People v Bueno, 18 NY3d 160, 169 [2011] [citation omitted], citing People v Barnes, 50 NY2d 375, 381 [1980]).

On the record before us, we agree that the evidence was sufficient for a rational finder of fact to find defendant guilty of two counts of attempted second-degree robbery. “A person is guilty of an attempt to commit a crime when, with [the] intent to commit a crime, [the person] engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00). “Essentially then, an attempt is an act done with an intent to commit some other crime” (People v Bracey, 41 NY2d 296, 299 [1977], citing People v Moran, 123 NY 254, 257 [1890]). Here, the attempted crime is second-degree robbery, which is established when a person “forcibly steals property” and “is aided by another person actually present” or “[displays what appears to be a . . . firearm” (Penal Law § 160.10 [1], [2] [b]). A person “forcibly steals” when the person “uses or threatens the immediate use of physical force upon another person for the purpose of . . . [c]ompelling the owner of such property or another person to deliver up the property” (Penal Law § 160.00 [2]). The requisite mental state for robbery is the “intent to permanently deprive the owner of that property” (People v Miller, 87 NY2d 211, 217 [1995]). Thus, the People had to prove beyond a reasonable doubt that defendant intended to forcibly steal property from an employee at the Wendy’s by threat or use of physical force.

Even absent direct evidence of intent, a conviction may be sustained where sufficient evidence exists to infer the requisite intent from the defendant’s conduct and the surrounding circumstances (People v Rodriguez, 17 NY3d 486, 489 [2011], citing Bracey, 41 NY2d at 301). As a practical matter, circumstantial evidence of intent is often essential to prosecution for an attempted crime because, as this Court is acutely aware, such evidence “ ‘may be the only way of proving intent in the typical case’ of criminal attempt” (Bracey, 41 NY2d at 301).

Turning to the specific facts of defendant’s case, we conclude that there is sufficient circumstantial evidence based on defendant’s appearance and conduct, and the surrounding events to support an inference that defendant intended to commit second-degree robbery. With respect to his appearance, defendant and his accomplice were dressed and equipped for criminal acts involving force and threatening behavior in furtherance of a robbery. They wore masks and gloves to enhance their criminal persona and avoid identification by facial recognition or fingerprint verification, and they carried what appeared to be handguns. In addition, defendant was apprehended carrying a backpack, which provided a convenient means to carry stolen property and which contained some additional gloves.

The conduct of defendant and his accomplice further evinced an intent to rob the Wendy’s. The men were knocking loudly on the commercial establishment’s rear door, an entry point not generally used by the public. They appeared early in the morning, before regular hours, with no apparent lawful purpose, and while two employees were alone and busy preparing to open for business. Moreover, defendant planned his escape in advance by parking his car in the nearby lot. This apparent familiarity with the area and the employees’ arrival time, and the attempted entry through a locked back door and the availability of a getaway vehicle suggests that defendant and his accomplice had previously assessed the establishment’s vulnerability to robbery. Therefore, on this record, the finder of fact had ample evidence to conclude that defendant’s dress, conduct and the surrounding circumstances are commonly associated with the crime of robbery.

Defendant contends that the evidence was equivocal because it is just as likely to suggest some other criminal act, such as assault, rape, and murder. The People respond that the evidence belies defendant’s argument that the facts support reasonable inferences of some alternative criminal intent. Defendant and the People both cite to People v Bracey in support of their respective arguments. We find the People’s argument persuasive and agree that, in accordance with Bracey, the evidence supports the inference that defendant intended to commit robbery, rather than some other crime.

In Bracey, two defendants entered a store carrying a gun concealed in a bag, looked around, made a token purchase, and left. One defendant then drove the car — which had its license plates removed — around the block and parked it down the street. The other defendant reentered the store with his gun drawn. At that moment, the police arrived in response to an earlier call from the store clerk who had found defendants previous behavior suspicious, and both defendants were eventually arrested. This Court upheld defendants’ convictions for robbery in the second degree, noting that “intent [may] . . . be inferred from the defendant’s conduct and the surrounding circumstances” (see Bracey, 41 NY2d at 301 [internal quotation marks omitted]). Although the Court noted that the act of walking into a store with a gun in hand “does not unequivocally establish that [defendants] intended to commit a robbery,” the Court ultimately concluded that defendants’ “conduct obviously fit[ ] a . . . pattern common to robberies” (id. at 301-302).

Here, the actions of the defendant and his accomplice, and the circumstances of the incident do not comport easily with a crime other than robbery. Notably, the coworkers and the supervisor testified they did not know defendant’s name, thus discounting the possibility that defendant’s aim was to commit some other crime more commonly associated with a specific target. Further, defendant’s use of a BB gun supports an inference of intent to forcibly steal rather than an intent to commit murder. In light of this record, it would require speculation to interpret the evidence as defendant suggests (see Bracey, 41 NY2d 296). Therefore, the trier of fact was entitled to conclude that it was not a reasonable possibility under the circumstances to find that defendant intended some criminal act other than robbery.

That the underlying facts reveal a somewhat different pattern of criminal conduct from the one this Court identified as common to the robbery pursued by defendants in Bracey means only that the pattern followed by defendant and his accomplice here reflects the characteristics and features of the robbery they attempted to commit. In other words, the conduct in each case reveals a pattern designed for the circumstances attendant to the specific crime, and provides a factual basis to infer the intent to commit robbery, albeit robbery of a particular nature.

In Bracey, the acts of entering and exiting the premises, initially concealing the weapon while inside the store and before the actual robbery, and riding around the immediate area, evinced the defendants’ efforts to assess the scene and any potential problems before conducting the crime. Those facts were sufficient to draw an inference of defendants’ intent to rob the store in the middle of the day, in open view to the general public.

In contrast, here there was evidence that defendant, who was unknown to any of the employees present that morning, and had no apparent business at Wendy’s, nevertheless showed up masked and armed, carrying a backpack, seeking entry at 6:30 a.m. through a locked rear door not used by the public, with an escape vehicle conveniently parked nearby. This fit the pattern common to an early morning robbery of a commercial establishment and was sufficient to support the inference that defendant intended to steal.

Accordingly, the Appellate Division order should be affirmed.

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

Order affirmed.

       Although the police officer testified that the gun found in the defendant’s car was a pellet gun, the parties’ stipulation referred to the two guns “found at or near the scene” as BB guns. Therefore, we refer to the two guns accordingly.


author: Fahey, J.

text:
    [33 NE3d 1270, 12 NYS3d 1]
    Eileen Malay, Appellant, v City of Syracuse et al., Respondents.
    Argued March 25, 2015;
    decided May 14, 2015

      POINTS OF COUNSEL

      O’Hara, O’Connell & Ciotoli, Fayetteville {Frank S. Gattuso of counsel), for appellant.
    I. CPLR 205 (a) is to be liberally construed. (Wooster v Forty-Second St. & Grand St. Ferry R.R. Co., 71 NY 471; People ex rel. Nolan v Prendergast, 88 Misc 307, 169 App Div 959; People ex rel. Lehigh Val. Rail Way Co. v Clover, 174 Misc 888; Matter of Morris Invs. v Commissioner of Fin. of City of N.Y., 69 NY2d 933; Matter of Winston v Freshwater Wetlands Appeals Bd., 224 AD2d 160.) II. CPLR 205 (a) has long been interpreted as preserving legitimate causes of action while promoting judicial economy. (Wooster v Forty-Second St. & Grand St. Ferry R.R. Co., 71 NY 471; People ex rel. Nolan v Prendergast, 88 Misc 307, 169 App Div 959; Lehman Bros. v Hughes Hubbard & Reed, 92 NY2d 1014.) III. The decisions of the courts below contradict the Court of Appeals’ holding that termination pursuant to CPLR 205 (a) occurs when a plaintiff has exhausted her rights to the litigation. (People v Bing, 76 NY2d 331; People v Taylor, 9 NY3d 129; Payne v Tennessee, 501 US 808; Hanover Ins. Co. v U.W. Marx, Inc., 238 AD2d 772; Lehman Bros. v Hughes Hubbard & Reed, 92 NY2d 1014; Maki v Grenda, 224 AD2d 996; Cenven, Inc. v Bethlehem Steel Corp., 41 NY2d 842; People v Taylor, 9 NY3d 129; Matter of Eckart, 39 NY2d 493; Dinerman v Sutton, 45 Misc 2d 791.) IV. Decisions of the courts below would compel plaintiffs to litigate identical claims in different forums and subject them to dismissal. (American Express Travel Related Servs. Co., Inc. v Zalmen Reiss & Assoc., Inc., 31 Misc 3d 1226[A], 2011 NY Slip Op 50862[U].) V. The Appellate Division did not follow its own reasoning in its previous Maki v Grenda (224 AD2d 996 [1996]) decision.

      Robert P. Stamey, Corporation Counsel, Syracuse {Ann M. Alexander of counsel), for respondents.
    Plaintiffs complaint is time-barred; plaintiff’s federal claims were summarily dismissed and plaintiff failed to commence the instant state action within six months of the date of judgment as required by CPLR 205 (a). (Matter of Goldstein v New York State Urban Dev. Corp., 13 NY3d 511; Trinidad v New York City Dept. of Corr., 423 F Supp 2d 151; Lehman Bros. v Hughes Hubbard & Reed, 92 NY2d 1014; Cohoes Hous. Auth. v Ippolito-Lutz, Inc., 65 AD2d 666, 49 NY2d 961; Gesegnet v Hyman, 285 AD2d 719; Dinerman v Sutton, 45 Misc 2d 791; Cook v Deloitte & Touche USA, 13 Misc 3d 1203[A], 2006 NY Slip Op 51675[U]; Maki v Grenda, 224 AD2d 996; Bender v Peerless Ins. Co., 36 AD3d 1120; Matter of Sean W. [Brittany WJ, 87 AD3d 1318.)
   OPINION OF THE COURT

Fahey, J.

In Lehman Bros. v Hughes Hubbard & Reed (92 NY2d 1014, 1016-1017 [1998]), this Court held that a prior action terminates for purposes of CPLR 205 (a) when an appeal taken as of right is exhausted. We are now asked to decide when a prior action terminates where an appeal is taken as of right but is dismissed by the intermediate appellate court due to the plaintiff’s failure to perfect the appeal. We hold that in such a situation, the prior action terminates for the purposes of CPLR 205 (a) when the intermediate appellate court dismisses the appeal, not when the underlying order appealed from is entered.

L

In March 2007, the owner of the building at 303 Gere Avenue in Syracuse shot his wife and took his relatives hostage. Plaintiff lived in an apartment in the building and was home at the time, but she was initially unaware of the hostage situation. During the ensuing standoff, police officers fired CS gas canisters into the building, including into plaintiff’s apartment. Plaintiff called 911, and she was able to leave her apartment safely. She later alleged that she suffered lasting injuries due to the gas exposure and loss of her personal property due to the contamination of her apartment. She was never allowed to return to the property.

In June 2008, plaintiff commenced an action in the United States District Court for the Northern District of New York, alleging violations of her federal and state constitutional rights and asserting common-law negligence claims. The District Court initially dismissed plaintiff’s claims under the Fifth Amendment of the United States Constitution, her claims under the New York Constitution, and her claims against one named defendant (see 638 F Supp 2d 303 [ND NY 2009]). After discovery, defendants moved for summary judgment. On September 30, 2011, the District Court granted defendants’ motion and dismissed plaintiff’s remaining federal claims (see 2011 WL 4595201, 2011 US Dist LEXIS 112520 [ND NY, Sept. 30, 2011, No. 5:08-CV-0599 (GHL)]). The court declined to exercise jurisdiction over plaintiff’s remaining state law claims. Plaintiffs motion for reconsideration was denied.

Plaintiff then took an appeal as of right to the United States Court of Appeals for the Second Circuit and, in May 2012, appeared at a conference in that court. However, on June 26, 2012, the Second Circuit issued an order stating that plaintiff’s appeal was in default because plaintiff had failed to file her brief and appendix within the deadline. The Second Circuit ordered that plaintiff’s appeal would be dismissed effective July 10, 2012 if her brief and appendix were not filed by that date. Plaintiff failed to file her brief and appendix by the extended deadline and, by mandate issued on August 28, 2012, the Second Circuit dismissed plaintiff’s appeal, effective July 10, 2012.

On June 25, 2012, however, before the Second Circuit dismissed her appeal, plaintiff commenced the present action in Supreme Court, Onondaga County. In a pre-answer motion, defendants moved to dismiss plaintiff’s state action as untimely. Defendants contended that because plaintiff commenced her state action nearly nine months after the District Court’s September 30, 2011 order, the six-month tolling period provided by CPLR 205 (a) had already expired.

Plaintiff responded that her federal action did not terminate until July 10, 2012, when the Second Circuit dismissed her appeal, and therefore her state action was filed before her federal action terminated. Plaintiffs attorney asserted that after participating in the pre-briefing conference, plaintiff determined that pursuit of her Second Circuit appeal was strategically unwise, based on her small chance of success on that appeal and a comparison of the “time it would take for the appeal to be decided versus the time it would take to have the state negligence claims placed on a trial calendar with discovery already complete.”

Supreme Court granted defendants’ motion to dismiss, holding that plaintiff’s federal action terminated on September 30, 2011, upon the District Court’s order granting summary judgment to defendants. The court rejected plaintiff’s contention that her federal action terminated with the Second Circuit’s dismissal of her appeal, reasoning that when an appeal is dismissed due to default, the six-month grace period of CPLR 205 (a) begins to run on the date that the order appealed from was entered. The Appellate Division affirmed without writing (113 AD3d 1141 [4th Dept 2014]). This Court granted plaintiff leave to appeal (23 NY3d 902 [2014]). We now reverse.

IL

“Tracing its roots to seventeenth century England, the remedial concept embodied in CPLR 205 (a) has existed in New York law since at least 1788” (Reliance Ins. Co. v PolyVision Corp., 9 NY3d 52, 56 [2007]). The statute and its predecessors were “designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits” (Gaines v City of New York, 215 NY 533, 539 [1915]), by “remedying what might otherwise be the harsh consequence of applying a limitations period where the defending party has had timely notice of the action” (Matter of Goldstein v New York State Urban Dev. Corp., 13 NY3d 511, 521 [2009], rearg denied 14 NY3d 756 [2010]). The statute’s “broad and liberal purpose is not to be frittered away by any narrow construction” (Gaines, 215 NY at 539).

In its current form, CPLR 205 (a) provides:

“If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff. . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.”

In Lehman Bros., this Court addressed the point of termination of a prior action where the plaintiffs appeal to a Texas intermediate appellate court was decided on the merits and the plaintiff thereafter unsuccessfully sought discretionary appellate review. We held that the plaintiff’s prior action terminated for the purposes of CPLR 205 (a) on the date that the plaintiff’s “sole nondiscretionary Texas appeal was exhausted,” that is, the date that the Texas intermediate appellate court affirmed the dismissal of the Texas action (see 92 NY2d at 1016-1017). We rejected the view that the commencement of the six-month tolling period was forestalled by the plaintiff’s request for a rehearing from the intermediate appellate court, or by the plaintiff’s efforts to seek discretionary appellate review from the Texas Supreme Court and the United States Supreme Court, noting that “[i]t is not the purpose of CPLR 205 (a) to permit, a party to continually extend the statutory period by seeking additional discretionary appellate review” (id. at 1016). We held however, that “[b]y contrast, where an appeal is taken as a matter of right, or where discretionary appellate review is granted on the merits, the six-month period does not commence since termination of the prior action has not yet occurred” (id.).

The Lehman Bros. decision followed previous decisions of this Court holding that a prior action terminates for purposes of CPLR 205 (a) upon the order of the intermediate appellate court when an appeal is taken as of right, or, when discretionary appellate review is granted on the merits, upon the order of the appellate court that granted discretionary review (see 423 S. Salina St. v City of Syracuse, 68 NY2d 474, 486 [1986], cert denied 481 US 1008 [1987]; Cohoes Hous. Auth. v Ippolito-Lutz, Inc., 49 NY2d 961, 962 [1980], affg on op below 65 AD2d 666 [3d Dept 1978]; Wooster v Forty-Second St. & Grand St. Ferry R.R. Co., 71 NY 471, 473 [1877]). Since Lehman Bros. was decided, we have reiterated that “ ‘termination’ of the prior action occurs when appeals as of right are exhausted” (Andrea v Amone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 519 [2005]), or, when discretionary appellate review is granted, upon “final determination” of the discretionary appeal (Joseph Francese, Inc. v Enlarged City School Dist. of Troy, 95 NY2d 59, 64 [2000]).

Those cases involved appellate court decisions on the merits, however, and this Court has not addressed the issue of when a prior action terminates for purposes of CPLR 205 (a) where, as here, an appeal is taken as of right but is dismissed by the intermediate appellate court due to the plaintiff’s failure to perfect. We resolve that question now by adhering to the Lehman Bros. decision and holding that, where an appeal is taken as of right, the prior action terminates for purposes of CPLR 205 (a) when the nondiscretionary appeal is truly “exhausted,” either by a determination on the merits or by dismissal of the appeal, even if the appeal is dismissed as abandoned.

m.

This interpretation of CPLR 205 is in keeping with the statute’s remedial purpose of allowing plaintiffs to avoid the harsh consequences of the statute of limitations and have their claims determined on the merits where, as here, a prior action was commenced within the limitations period, thus putting defendants on notice of the claims (see Goldstein, 13 NY3d at 521; Gaines, 215 NY at 539). In interpreting the statute, we are also mindful of judicial economy. Defendants acknowledge that attorneys routinely file notices of appeal from adverse determinations as a matter of course, and defendants posit no reasonable basis for their concern that plaintiffs will be motivated to unduly delay making a determination regarding whether to pursue their appeal or commence a new action. To the contrary, plaintiffs are generally motivated to obtain a determination on the merits in their favor as quickly as possible. Indeed, plaintiff here did not even wait until the Second Circuit’s order of dismissal was rendered before commencing her action in state court. Rather, after the pre-briefing conference, plaintiff decided to commence a state court action due, in part, to her realization that the state negligence claims would be resolved much more quickly if she commenced the new action.

Defendants’ concern that this interpretation of the statute will encourage plaintiffs to take frivolous appeals as of right that they have no intention of perfecting, while not unreasonable, is similarly overblown. A plaintiff who engages in such behavior would not be able to do so for long, inasmuch as the dismissal of the nondiscretionary appeal due to failure to perfect generally would foreclose any subsequent appeal of the same issues (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 755-756 [1999]). Furthermore, the intermediate appellate court presumably would not vacate the dismissal of the appeal without a compelling reason to do so.

Defendants contend that plaintiff was not required to choose between commencing her state action within six months of the District Court’s order or pursuing her appeal in the Second Circuit to a decision on the merits. Rather, defendants claim, plaintiff could have pursued her Second Circuit appeal and simultaneously commenced a state action, in order to protect her rights if she later decided to forgo her appeal. Defendants assert that, according to plaintiff’s interpretation of CPLR 205 (a), she did, in fact, commence her state action while her federal action was still pending, because the Second Circuit had not yet dismissed her appeal.

We reject defendants’ contention that plaintiffs should commence new actions while appeals on their prior actions are pending if there is any chance they might decide to forgo pursuit of their appeals. In such a situation, the new action would be subject to dismissal pursuant to CPLR 3211 (a) (4), which allows for dismissal in the court’s discretion when “there is another action pending between the same parties for the same cause of action in a court of any state or the United States.” Moreover, requiring a plaintiff to commence a new action while an appeal on the prior action is pending would be wasteful of the limited time and resources of courts and litigants, inasmuch as the appeal “might, and in many cases would, determine the right of the parties in the controversy, and prevent further costs and litigation” (Wooster, 71 NY at 473). Defendants’ contention that there was not another action pending on the same cause of action in this case because plaintiff appealed to the Second Circuit only the dismissal of her federal claims and expressly abandoned her state law claims is unsupported by the record.

Accordingly, the order of the Appellate Division should be reversed, with costs, and defendants’ motion to dismiss the complaint denied.

Chief Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Sadaam and Stein concur.

Order reversed, with costs, and defendants’ motion to dismiss complaint denied.

       Whether the Second Circuit’s dismissal of plaintiff’s appeal constituted a “voluntary discontinuance” or a “neglect to prosecute” within the meaning of CPLR 205 (a) is an issue not preserved for our review. We therefore express no opinion with respect to the correct resolution of that issue.


author: Chief Judge Lippman.

text:
    [34 NE3d 341, 12 NYS3d 590]
    The People of the State of New York, Respondent, v Ricky A. Lynch, Appellant.
    Argued April 28, 2015;
    decided June 9, 2015

      POINTS OF COUNSEL

      Robert C. Mitchell, Legal Aid Society, Riverhead. (Edward Smith and Louis E. Mazzola of counsel), for appellant.
    The charges of forgery in the second degree and criminal personation for which the appellant was convicted in Westchester County were based on the same act or criminal transaction as were the charges for which he was later tried and convicted in Suffolk County and for that reason the Suffolk charges should have been dismissed under CPL 40.20. (Matter of Abraham v Justices of N.Y. Supreme Ct. of Bronx County, 37 NY2d 560.)

      Thomas J. Spota, District Attorney, Riverhead (Ronnie Jane Lamm of counsel), for respondent.
    The Suffolk County charges did not violate double jeopardy because appellant’s previous conviction resulted from a separate and distinct offense within the Penal Law, and each crime was designed to prevent different kinds of harm or evil. (Garrett v United States, 471 US 773; Blockburger v United States, 284 US 299; People v Mabry, 101 AD2d 961; People v Artis, 74 AD2d 644; Matter of Auer v Smith, 77 AD2d 172; People v Arnold, 174 Misc 2d 585; People v Davis, 277 AD2d 248; People v Prescott, 66 NY2d 216; Matter of Abraham v Justices of N.Y. Supreme Ct. of Bronx County, 37 NY2d 560; Matter of Steingut v Gold, 42 NY2d 311.)
   OPINION OF THE COURT

Chief Judge Lippman.

In this appeal, we determine whether defendant’s second prosecution in New York was based on the same criminal transaction as a previous prosecution, and thus barred by New York’s statutory double jeopardy protections. We hold that these prosecutions involved different criminal transactions.

On June 15, 2009, defendant used false information when filling out an application (an MV-44 form) for a non-driver identification card, a form he submitted to the New York State Department of Motor Vehicles (DMV) in Suffolk County. On the application, defendant represented himself to be Ricky Lynch, Jr., defendant’s son, using his son’s name, date of birth, and Social Security number.

In November 2009, while driving in Westchester County, defendant made an illegal U-turn for which he was stopped by the police. When asked for identification, defendant produced the non-driver ID card he had obtained in June 2009. During an inventory of the car after defendant was arrested for driving with a suspended license, the officer found two other fake or forged identification cards on the floor behind the passenger’s seat. Defendant was charged with criminal possession of a forged instrument in the second degree, aggravated unlicensed operation of a motor vehicle in the second degree, and false personation. He pleaded guilty to a reduced charge of criminal possession of a forged instrument in the third degree in satisfaction of the indictment.

Defendant’s son, Ricky Lynch, Jr., returned to New York in November 2008 after living with his mother in Arizona for four years. When he attempted to obtain a new driver’s license at the DMV in February 2010, he was told he had unpaid tickets and that his license was suspended. After reviewing its records, the DMV found that defendant had used his son’s identifying information to apply for an ID card. Defendant’s son identified his father’s photograph on licenses ostensibly issued to Ricky Lynch, Jr.

In August 2010, a Suffolk County grand jury charged defendant with criminal possession of a forged instrument in the second degree, alleging that on June 15, 2009, he possessed a forged instrument (the MV-44 form); forgery in the second degree, alleging that on June 15, 2009, with intent to defraud his son, he falsely made and completed the form; identity theft in the first degree, alleging that on the same date, he assumed the identity of his son; and offering a false instrument for filing in the first degree, alleging that on the same date, he presented the said form.

Defendant moved to dismiss the Suffolk County charges on statutory double jeopardy grounds under Criminal Procedure Law § 40.20. The court denied the motion, reasoning that “defendant is not charged in Suffolk County with possession of the identity card and thus the ‘res’ of the crime is a completely different instrument” and “[although related, the alleged crimes in Suffolk were complete with the defendant filing his application.” “That the defendant possessed the fruits of that crime is a separate and distinct act which is not subject to a defense of double jeopardy.”

The Appellate Division affirmed, holding that there was no statutory double jeopardy violation because the “crimes for which the defendant was prosecuted in Suffolk County were not based upon the same criminal transaction as the crime for which he was prosecuted in Westchester County” (116 AD3d 979, 979 [2d Dept 2014]). “The Westchester County prosecution involved a separate offense, which arose out of the defendant’s possession of a different forged instrument than the one at issue in the Suffolk County prosecution” (id. at 980).

Under CPL 40.20 (2), a subsequent prosecution for offenses involving the “same . . . criminal transaction,” as defined by CPL 40.10 (2), violates, the statutory bar against double jeopardy unless an exception applies.

“ ‘Criminal transaction’ means conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” (CPL 40.10 [2]).

The definition contains two alternative tests to determine whether two offenses are part of the same criminal transaction. Paragraph (a) “involves consideration of the nature, timing and circumstances of the offenses” so that, for example, where a seller of pornographic materials sold two pornographic items at the same time to a single purchaser, the acts constituted the same criminal transaction (New York Pretrial Criminal Procedure § 2:6 [2d ed 7 West’s NY Prac Series], citing People v North St. Book Shoppe, 139 AD2d 118 [3d Dept 1988]). In contrast, a court identified two separate criminal transactions where defendants used stolen credit cards to purchase merchandise, for which they were convicted of criminal possession of stolen property and forged instruments in New York State, and three months later bought different stolen credit cards, for which they were convicted in federal court of conspiracy to purchase stolen credit cards (see People v Vesprey, 183 AD2d 212 [1st Dept 1992], lv denied 81 NY2d 894 [1993]). Different criminal transactions have also been recognized for separate sales of drugs to the same person at the same place, separated by 48 hours (see People v Robinson, 65 AD2d 896 [3d Dept 1978]).

In People v Dallas (46 AD3d 489 [1st Dept 2007]), defendant’s prosecution in New York County for possession of 12 counterfeit documents and prior prosecution in Kings County for the sale of different false identification documents “of the same nature,” did not violate the statutory protections against double jeopardy because the offenses “were not so closely related as to constitute a single criminal transaction” (id. at 490 [internal quotation marks omitted]). “The fact that defendant was in the business of selling counterfeit identifications, and that his conduct in both counties may have been admissible in both prosecutions . . . did not make his possession of different documents at different times a single criminal transaction” (id.).

Paragraph (b) of the CPL 40.10 (2) definition “tends to be more applicable to crimes that involve planned, ongoing organized criminal activity, such as conspiracies, complex frauds or larcenies, or narcotics rings” (New York Pretrial Criminal Procedure § 2:6 [2d ed 7 West’s NY Prac Series]). This Court has recognized violations of statutory double jeopardy protections in drug trafficking cases where the “embracive nature of the crime of conspiracy” presents unique circumstances (People v Abbamonte, 43 NY2d 74, 85 [1977]; see Matter of Abraham v Justices of N.Y. Supreme Ct. of Bronx County, 37 NY2d 560 [1975] [concluding that successive prosecutions in state and federal court for drug trafficking of the same drugs constituted the same criminal transaction and violated statutory double jeopardy protections]). In Abraham, this Court observed that each defendant in the drug trafficking conspiracy “played a well defined role in a highly structured, disciplined and vertically integrated criminal enterprise,” and “the part with which each was immediately concerned . . . was dependent upon the success of the whole” (id. at 566-567 [citation, brackets and internal quotation marks omitted]). The Court concluded that the “acts and conduct constituted ‘integral parts of a single criminal venture’ and, thus, a single ‘criminal transaction’ within the meaning of CPL 40.20” (id. at 567).

Here, under the test presented by CPL 40.10 (2) (a), the offense of submitting a forged MV-44 form and the offense of presenting a forged non-driver ID to the police were many months apart and, as in People v Dallas, involved different forged instruments — the non-driver’s license and the MV-44 application form — making them different criminal transactions. The Suffolk County charge was based on defendant’s completion and filing of the application form. The offense was complete once defendant submitted the forged application to the DMV in June 2009. The Westchester offense occurred almost five months later and was based on defendant’s presentation of the forged non-driver’s license to the officer. With the non-driver ID card in hand, defendant could give the appearance of a clean record, which would enable him to evade his criminal history and obtain a loan or employment under a false identity. Applying the alternative test defined by CPL 40.10 (2) (b), this case does not involve the integrated, interdependent acts as seen in conspiracy cases or complex frauds, and as such does not constitute a “single criminal venture” (see 37 NY2d at 567).

A closer case might be presented had defendant applied for a driver’s license in Suffolk County with his son’s papers and showed the temporary driver’s license later that same day when his car was stopped by police. In such circumstances, the timing and criminal purpose of the two acts would be more interrelated than the circumstances presented here.

As the successive prosecutions here involved two different criminal transactions, we need not reach defendant’s remaining contentions.

Accordingly, the Appellate Division order should be affirmed.

Judges Read, Pigott, Rivera, Abdus-Salaam, Stein and Fa-hey concur.

Order affirmed.

       Following a jury trial, defendant was convicted of all charges in the indictment. At sentencing, the court dismissed the conviction of forgery in the second degree on the ground that one cannot be convicted of both criminal possession of a forged instrument and forgery of the same written instrument.


author: Stein, J. Rivera, J.

text:
    [34 NE3d 344, 12 NYS3d 593]
    The People of the State of New York, Respondent, v Rasaun Sanders, Also Known as Boo Cracks, Appellant.
    Argued April 29, 2015;
    decided June 9, 2015

      POINTS OF COUNSEL

      Mark Diamond, New York City, for appellant.
    I. Mr. Sanders’ statements to police should have been suppressed because they were coerced by the threat of death. (Colorado v Connelly, 479 US 157; Mincey v Arizona, 437 US 385; Miranda v Arizona, 384 US 436; People v Guilford, 21 NY3d 205; People v Mateo, 2 NY3d 383; People v Tarsia, 50 NY2d 1; People v Huntley, 15 NY2d 72; Culombe v Connecticut, 367 US 568; People v Thomas, 22 NY3d 629; Blackburn v Alabama, 361 US 199.) II. Mr. Sanders’ objection to the denial of his suppression motion survived his guilty plea. (Brady v United States, 397 US 742; People v DeSimone, 80 NY2d 273; People v Moissett, 76 NY2d 909; Martinez v Court of Appeal of Cal., Fourth Appellate Dist., 528 US 152; People v Melton, 35 NY2d 327; People v Ford, 86 NY2d 397; People v Harris, 61 NY2d 9.) III. Mr. Sanders’ guilty plea is unenforceable because he did not admit to guilty facts. (Matter of Silmon v Travis, 95 NY2d 470; People v Billingsley, 54 NY2d 960; People v Seaberg, 74 NY2d 1; People v Mead, 27 AD3d 767; People v Peralta, 1 AD3d 115; People v Kaszubinski, 55 AD3d 1133; People v Lopez, 71 NY2d 662; People v Deyes, 3 AD3d 575; People v Moore, 71 NY2d 1002; People v Chowdhury, 22 AD3d 596.)

      Janet DiFiore, District Attorney, White Plains (Jennifer Spencer, Laurie Sapakoff and Steven A. Bender of counsel), for respondent.
    Defendant’s waiver of his right to appeal is enforceable. (People v Lopez, 6 NY3d 248; People v Seaberg, 74 NY2d 1; People v Moissett, 76 NY2d 909; People v Callahan, 80 NY2d 273; People v Bradshaw, 18 NY3d 257; People v Kemp, 94 NY2d 831; People v Hidalgo, 91 NY2d 733; People v Muniz, 91 NY2d 570; People v Maracle, 19 NY3d 925; People v Mower, 97 NY2d 239.)
   OPINION OF THE COURT

Stein, J.

In this appeal, we are asked to consider whether a plea colloquy was adequate to effect a valid waiver of the right to appeal by a criminal defendant. The record here, including the plea colloquy and the other relevant facts, such as proof of defendant’s experience and background, is sufficient to uphold defendant’s waiver of his right to appeal as voluntary, knowing and intelligent.

L

In the course of a May 2009 gang assault of the 16-year-old victim, defendant stabbed the victim in the chest with a knife, killing him. Upon his arrest, defendant received his Miranda warnings and, after approximately two hours of questioning, admitted to the stabbing. He was charged in an indictment with murder in the second degree, gang assault in the first degree and criminal possession of a weapon in the third degree. After defendant’s motion to suppress his statements was denied in part, he pleaded guilty on the eve of trial to manslaughter in the first degree and gang assault in the first degree.

During the plea colloquy, County Court set forth the terms of the plea, and the prosecutor conducted the voir dire examination. The prosecutor discussed the rights normally forfeited upon a plea of guilty, inquired as to whether defendant was pleading voluntarily because he was guilty, and reviewed potential collateral consequences of the plea with him. The prosecutor also advised defendant of the consequences he could face if he failed to voluntarily appear for sentencing or committed another crime prior thereto. Regarding the waiver of the right to appeal, the following exchange then took place between the prosecutor and defendant:

“Q. Do you understand that as a condition of this plea you are waiving the right to appeal your conviction and sentence to the Appellate Division Second Department?
“A. Yes.
“Q. Have you discussed this waiver of the right to appeal with your attorney?
“A. Yes.
“Q. In consideration of this negotiated pleat,] do you now voluntarily waive your right to appeal your conviction and sentence under this indictment?
“A. Yes.”

Immediately thereafter, the prosecutor asked defense counsel whether he was “withdraw [ing] all motions made by you whether pending or decided?” Counsel responded, “Yes, withdrawn.” The prosecutor conducted the factual allocution and the court accepted the plea. Defendant was thereafter sentenced, as a predicate violent felony offender, to an aggregate term of 20 years in prison, to be followed by five years of postrelease supervision.

Defendant filed a pro se notice of appeal. The Appellate Division, Second Department affirmed, concluding that defendant’s valid waiver of the right to appeal barred his challenge to County Court’s suppression ruling (112 AD3d 748, 748-750 [2013]). A dissenting Justice of the Appellate Division granted defendant leave to appeal (22 NY3d 1160 [2014]), and we now affirm.

IL

In People v Seaberg, this Court recognized for the first time that a defendant may waive his or her statutory right to an initial appeal, provided that the waiver is “not only . . . voluntary but also knowing and intelligent” (74 NY2d 1, 11 [1989]). We explained that a trial court must review the waiver and “determine! ] [whether] it meets those requirements by considering all the relevant facts and circumstances surrounding the waiver, including the nature and terms of the agreement and the age, experience and background of the accused” (id.; see People v Calvi, 89 NY2d 868, 871 [1996]; People v Callahan, 80 NY2d 273, 280, 283 [1992]). The trial court must also ensure that defendant’s “full appreciation of the consequences” and understanding of the terms and conditions of the plea, including a waiver of the right to appeal, are apparent on the face of the record (Seaberg, 74 NY2d at 11; Callahan, 80 NY2d at 280). In that regard, we emphasized in Seaberg that the trial “court should have required [the defendant] to state his understanding and acceptance” of the details of the plea bargain on the record (74 NY2d at 11); nevertheless, we upheld the waiver in that case despite the fact that the defendant did not personally participate in the court’s colloquy with his counsel, given the other relevant facts on the record that demonstrated the defendant’s understanding of the waiver (see id. at 11-12; see also People v Moissett, 76 NY2d 909, 911 [1990]).

Although we have since “underscore [d] the critical nature of a court’s colloquy with a defendant explaining the right relinquished by an appeal waiver” (People v Lopez, 6 NY3d 248, 253 [2006]), we have continued to require assessment of all of the relevant factors surrounding the waiver, including the experience and background of the accused (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]). Moreover, we have never abandoned our oft-stated instruction that “a trial court need not engage in any particular litany when apprising a defendant pleading guilty of the individual rights abandoned” (Lopez, 6 NY3d at 256; see Bradshaw, 18 NY3d at 265; People v Kemp, 94 NY2d 831, 833 [1999]; Callahan, 80 NY2d at 283). Contrary to defendant’s argument, this Court has not — in People v Nicholson, a companion case decided with Lopez, or in any other case — set forth the absolute minimum that must be conveyed to a pleading defendant in the plea colloquy in order for the right to appeal to be validly waived. We have long rejected that approach on the ground that “a sound discretion exercised in cases on an individual basis is best rather than to mandate a uniform procedure which, like as not, would become a purely ritualistic device . . . [that] eliminate [s] thinking” (People v Nixon, 21 NY2d 338, 355 [1967]).

in.

With those principles in mind, we conclude that the record before us sufficiently demonstrates that defendant knowingly and intelligently waived his right to appeal. There is no meaningful distinction between the plea colloquy here and the colloquy upheld in Nicholson, in which defendant acknowledged his understanding that he was “giving up [his] right to appeal, that is, to take to a higher court than this one any of the legal issues connected with this case” (Nicholson, 6 NY3d at 254). As in Nicholson, the plea colloquy here was sufficient because the right to appeal was adequately described without lumping it into the panoply of rights normally forfeited upon a guilty plea. In fact, the People went even further in this case and obtained defendant’s confirmation that he had discussed the waiver of the right to appeal with his attorney and that he was waiving such right in consideration of his negotiated plea, as well as counsel’s confirmation that all motions pending or decided were being withdrawn. Thus, while the better practice would have been to define the nature of the right to appeal more fully — as the court did in Nicholson — the Appellate Division correctly determined that no further elaboration was necessary on the phrase “right to appeal your conviction and sentence to the Appellate Division Second Department” in view of the whole colloquy, particularly given this defendant’s background, including his extensive experience with the criminal justice system and multiple prior guilty pleas that resulted in terms of imprisonment.

Under these circumstances, defendant’s valid, general waiver of the right to appeal precludes his challenge to County Court’s adverse suppression ruling (see Kemp, 94 NY2d at 833). Accordingly, the order appealed from should be affirmed.

Rivera, J.

(dissenting). For the reasons set forth in the dissent below, I would find defendant’s waiver invalid under our prior precedent and, accordingly, I would remit the matter to the Appellate Division for consideration of the merits of his suppression claim. I write separately to briefly address the majority’s treatment of two significant issues.

First, the majority concludes “[t]here is no meaningful distinction” between the plea colloquy challenged on this appeal and the colloquy this Court found sufficient in People v Nicholson (see majority op at 341). However, the majority acknowledges the trial court here could have “define [d] the nature of the right to appeal more fully — as the court did in Nicholson” (id. at 342). Nevertheless, the majority concludes that defendant’s plea colloquy, with its reference to waiver of an appeal from his “conviction and sentence to the Appellate Division Second Department,” is legally sufficient because of defendant’s “background [and] extensive experience with the criminal justice system” {id. at 342).

I disagree with the majority’s suggestion that a defendant’s prior criminal record alone can cure a deficient plea allocution. While defendant’s age, experience and background are factors to be considered in determining whether defendant’s waiver is knowing and intelligent (see People v Seaberg, 74 NY2d 1, 11 [1989]), we have never before held that a defendant’s criminal history, regardless of its length, is dispositive of the defendant’s understanding of the plea. A defendant’s criminal background history is but one factor and cannot fill in the gaps when the colloquy fails to properly apprise a defendant of the rights abandoned by entering a plea agreement {see id. [the court must determine “all the relevant facts and circumstances surrounding the waiver”]). Nor can the defendant’s record absolve a court from its responsibility to ascertain that defendant understands the nature of the rights waived (see People v Lopez, 6 NY3d 248, 256 [2006]). Otherwise, taken to its logical conclusion, in cases involving a defendant with a prior record, the majority’s approach would negate the need for the type of “fuller colloquy” this Court sanctioned in Nicholson, indeed the need for any colloquy. Certainly our precedent neither permits nor intends such outcome.

This is not to say a defendant’s prior background is irrelevant; we have expressly stated otherwise (see Seaberg, 74 NY2d at 11). However, the extent to which the defendant’s criminal history is a relevant factor regarding the defendant’s understanding of the specifics of the plea and the rights waived depends, for example, on whether a defendant has previously entered a plea waiving rights to appeal, signed a written waiver of such rights, and actually gone through an appellate process. That information is simply lacking in the record before us. As observed by the dissent below, the record fails to establish what defendant understands of his right to appeal based on his prior experiences (see People v Sanders, 112 AD3d 748, 753 [2d Dept 2013, Hall, J., dissenting] [“Indeed, whatever information the defendant was, or was not, provided with regard to his right to appeal in those prior criminal proceedings is not in this record. As a result, this Court is forced to speculate that the defendant gained an understanding of the nature of his right to appeal from his prior contacts with the criminal justice system”]).

Second, as a point of clarification, and like the majority, I too find “troubling]” a trial court’s delegation of the plea allocution to the prosecutor (see majority op at 339 n 1). As the majority correctly states, under this Court’s precedent “the plea allocution is ‘best left to the discretion of the court’ ” (see id., citing People v Nixon, 21 NY2d 338, 353 [1967], cert denied sub nom. Robinson v New York, 393 US 1067 [1969]; see also Lopez, 6 NY3d at 256 [stating a trial court “must make certain that a defendant’s understanding of the terms and conditions of a plea agreement is evident on the face of the record”], citing People v Callahan, 80 NY2d 273, 280 [1992]).

Chief Judge Lippman and Judges Read, Pigott, AbdusSalaam and Fahey concur; Judge Rivera dissents in an opinion.

Order affirmed.

      . The parties have not addressed — either in this Court or in the courts below — the fact that the prosecutor, as opposed to the trial court, conducted most of the plea allocution. Although the Appellate Division Departments are divided on the propriety of the delegation of this important function, it has been “long criticized” (People v Robbins, 33 AD3d 1127, 1129 [2006]) and we are troubled by it, as well. As we noted in People v Nixon (21 NY2d 338, 353 [1967], cert denied sub nom. Robinson v New York, 393 US 1067 [1969]), the conduct of the plea allocution is “best left to the discretion of the court.”

      . While the factors raised by the dissent — whether a defendant has previously entered a guilty plea waiving rights to appeal, signed a written appeal waiver or taken a prior appeal — certainly would be relevant to determining defendant’s understanding of the terms of a waiver, this Court’s review of a defendant’s background, as it impacts upon the validity of an appeal waiver, has not been so confined (see People v Bradshaw, 18 NY3d 257, 265-266 [2011]; People v Seaberg, 74 NY2d 1, 11-12 [1989]). Here, as reflected in the transcript of the Sandoval hearing and the violent predicate felony conviction statement submitted to the court, defendant was 27 years old at the time of the plea and had a criminal history that stretched back 10 years. His prior convictions obtained upon guilty pleas include a 2003 violent felony in New York, as well as federal, New Jersey and Pennsylvania convictions. Defendant was also convicted of a federal felony while on parole and was on supervised release at the time of the stabbing in this case.


text:
    [34 NE3d 351, 12 NYS3d 600]
    In the Matter of Edna Shannon, Deceased. Family Service Society of Yonkers, Petitioner, v Westchester County Department of Social Services, Appellant, and Eastchester Rehabilitation & Health Care Center, Respondent.
    Argued April 29, 2015;
    decided June 10, 2015

      POINTS OF COUNSEL

      Robert F. Meehan, County Attorney, White Plains (Eileen Campbell O’Brien and James Castro-Bianco of counsel), for appellant.
    The Appellate Division erred by reducing the Westchester County Department of Social Services’ statutory status as preferred creditor to that of a subordinate creditor. (Matter of Costello v Geiser, 85 NY2d 103; Cricchio v Pennisi, 90 NY2d 296; Calvanese v Calvanese, 93 NY2d 111; Matter of Steuben County Dept. of Social Servs. v Deats, 76 NY2d 451; New York State Dept. of Social Servs. v Bowen, 846 F2d 129; Matter of Andrus, 85 Misc 2d 1062; Matter of Swingearn, 59 AD3d 556; Matter of Ramirez, 14 Misc 3d 480; Matter of Baron, 180 Misc 2d 766; Matter of Linden-Rath, 188 Misc 2d 537.)

      Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, Lake Success (Sarah C. Lichtenstein of counsel), for respondent.
    I. Eastchester Rehabilitation & Health Care Center was entitled to payment of its claim from Edna Shannon’s property. II. Edna Shannon’s death did not deprive Family Service Society of Yonkers of authority to pay Eastchester Rehabilitation & Health Care Center’s claim. (Matter of Baron, 180 Misc 2d 766; Barclay Knitwear Co. v King’swear Enters., 141 AD2d 241; Buffalo City Cemetery v City of Buffalo, 46 NY 506; Connors v Hartford Fire Ins. Co., 138 AD2d 877; Cahen v Boyland, 1 NY2d 8; Wright v Sokoloff, 110 AD3d 989; Friedman v Connecticut Gen. Life Ins. Co., 9 NY3d 105; Matter of Pierce, 106 AD2d 892; Matter of Snell, 194 Misc 2d 695; Matter of Swingearn, 59 AD3d 556.) III. Westchester County Department of Social Services was not entitled to payment from the guardianship property. (Matter of Craig, 82 NY2d 388; Baker v Sterling, 39 NY2d 397.) IV. The specters which Westchester County Department of Social Services suggests will result from the First Department decision will not occur and have no basis in reality. (Grant v Humbert, 114 App Div 462; Matter of Linden-Rath, 188 Misc 2d 537.)
   OPINION OF THE COURT

Fahey, J.

On this appeal we are called upon to determine whether Mental Hygiene Law § 81.44 permits a guardian to retain property of an incapacitated person after the incapacitated person has died for the purpose of paying a claim against the incapacitated person that arose before such person’s death. We conclude that it does not.

L

Respondent Eastchester Rehabilitation & Health Care Center, a skilled nursing facility, began to care for Edna Shannon in December 2005. Approximately three years later, respondent Westchester County Department of Social Services (DSS) determined that Shannon was eligible for Medicaid benefits as of September 1, 2008. In April 2009, and pursuant to Eastchester’s request, Supreme Court appointed petitioner, Family Service Society of Yonkers (FSS Yonkers), as guardian of Shannon’s person and property. Shannon was discharged from Eastchester to another skilled nursing facility in November 2009.

In June 2010, Eastchester made a claim with FSS Yonkers seeking compensation for approximately $164,000 in services it rendered to Shannon that were not covered by Medicaid. Some three months later, DSS advised FSS Yonkers that Shannon was indebted to DSS in the approximate amount of $166,000 for medical assistance paid on her behalf. Supreme Court approved the sale of Shannon’s real property for $308,000 in January 2011, and Shannon died at age 87 in December 2011. In the meantime, Shannon’s debts to Eastchester and DSS had grown such that by summer 2012 more than $200,000 was owed to each of those entities. By then, slightly less than $190,000 of Shannon’s property remained. The question whether that property, which consisted of cash and securities, remained in Shannon’s guardianship account or became the property of her estate lies at the core of this appeal.

In August 2012 FSS Yonkers commenced this proceeding to settle its final account as to the guardianship seeking a determination whether it was required to pay Shannon’s remaining property in equal amounts to DSS and Eastchester in satisfaction of their claims, or whether it should disburse the property in some other manner. By order entered in February 2013, Supreme Court held that the balance of Shannon’s remaining property (save for $9,000 that the court instructed FSS Yonkers to pay to its attorneys and to the Court Examiner for services rendered in connection with the guardianship estate) should be paid to DSS in satisfaction of DSS’s claim (see Social Services Law § 369 [2] [b] [i] [B] [permitting recovery for medical assistance correctly paid “from the estate of an individual who was (55) years of age or older when he or she received such assistance,” subject to certain qualifications immaterial here]). On appeal, the Appellate Division reversed insofar as appealed from, with the majority holding “that since Eastchester’s claim arose before Shannon’s death, and [Mental Hygiene Law § ] 81.44 (d) allows [FSS Yonkers] to retain assets to secure known claims, Eastchester’s claim has priority over that of DSS, which arose after Shannon’s death” (120 AD3d 128, 129 [1st Dept 2014]).

The dissenter, however, “would [have] affirm [ed] Supreme Court’s determination that the Medicaid lien imposed by Social Services Law § 104 (1) takes precedence over a claim by the general creditor, . . . Eastchester” (id. at 133-134 [Freedman, J., dissenting]). The dissenter concluded that “[o]nce . . . Shannon died, all funds other than those reserved for the administration of her guardianship in accordance with Mental Hygiene Law § 81.44 passed to her estate” (id. at 134), and that DSS thus had a claim superior to that of Eastchester against Shannon’s property (see id. at 136, citing Social Services Law § 104 [1]). We subsequently granted DSS leave to appeal (24 NY3d 904, 905 [2014]) and, for the reasons that follow, we now reverse the order of the Appellate Division insofar as appealed from.

IL

The Medicaid program is designed “to pay for necessary medical care for those eligible individuals whose income and resources do not allow them to meet the costs of their medical needs” (Matter of Golf v New York State Dept. of Social Servs., 91 NY2d 656, 659 [1998]). Ultimately, the “goal of Medicaid [is] that the program be the payer of last resort” (Matter of Costello v Geiser, 85 NY2d 103, 106 [1995] [internal quotation marks omitted]). Apparently with that in mind, the legislature enacted what is now Social Services Law § 104 (1), which provides, in relevant part, that “[i]n all claims of the public welfare official made under [such] section the public welfare official shall be deemed a preferred creditor.”

Given the pertinent language of Social Services Law § 104 (1), to the extent that both DSS and Eastchester seek to recover from Shannon’s estate, DSS’s claim against property that passed to the estate would have priority over a competing claim brought by Eastchester because Eastchester did not take a judgment against Shannon before she died. Indeed, absent a judgment, Eastchester would be a general creditor, that is, “[a] creditor [that], upon giving credit, takes no rights against specific property of the debtor” (Black’s Law Dictionary 449, 450 [10th ed 2014]), and, in theory, a claim it made against property in Shannon’s estate would be subservient to any claim of DSS against such property. However, this appeal does not present a question of competing claims against property in Shannon’s estate. Rather, the issue is whether property held by FSS Yonkers as Shannon’s guardian at the time of Shannon’s death automatically became the property of her estate or could be withheld by FSS Yonkers for the purpose of paying the claim, out of the guardianship account, that Eastchester had noticed before Shannon died.

As the dissenter at the Appellate Division noted, FSS Yonkers’s authority as Shannon’s guardian expired with Shannon’s death (see 120 AD3d at 136 [Freedman, J., dissenting], citing Mental Hygiene Law § 81.36 [a] [3] [providing that “(t)he court appointing the guardian shall discharge such guardian, or modify the powers of the guardian where appropriate, if it appears to the satisfaction of the court that . . . the incapacitated person has died”]), and the property in the guardianship account that remained after the fees of the guardianship were paid would normally have passed to her estate (see SCPA 103 [19] [defining “estate” as “(a)ll of the property of a decedent . . . or person for whom a guardian has been appointed”]). The question becomes whether, as the Appellate Division majority concluded, Mental Hygiene Law § 81.44 (d) provides for what amounts to a holdback authorizing “Eastchester . . . to be paid out of the guardianship account [maintained by FSS Yonkers for Shannon] before any funds passed to [Shannon’s] estate” (120 AD3d at 131), i.e., whether FSS Yonkers may withhold from Shannon’s estate funds in the guardianship account for the purpose of paying Eastchester. The text of section 81.44 (d) provides that

“[w]ithin [150] days of the death of the incapacitated person, the guardian shall serve upon the personal representative of the decedent’s estate or where there is no personal representative, upon the public administrator or chief fiscal officer, a statement of assets and notice of claim, and, except for property retained to secure any known claim, lien or administrative costs of the guardianship pursuant to subdivision (e) of this section, shall deliver all guardianship property to:
“1. the duly appointed personal representative of the deceased incapacitated person’s estate, or
“2. the public administrator or chief fiscal officer given notice of the filing of the statement of death, where there is no personal representative” (emphasis added).

Subdivision (e) of section 81.44, in turn, states that, “[u]nless otherwise ordered by the court . . . , the guardian may retain, pending the settlement of the guardian’s final account, guardianship property equal in value to the claim for administrative costs, liens and debts” (emphasis added).

III.

“It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature” (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998] [internal quotation marks omitted]; see Matter of Albany Law School v New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 120 [2012]). Inasmuch “[a]s the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof” (Majewski, 91 NY2d at 583; see Commonwealth of the N. Mariana Is. v Canadian Imperial Bank of Commerce, 21 NY3d 55, 60 [2013]). “We are also guided in our analysis by the familiar principle ‘that a statute . . . must be construed as a whole and that its various sections must be considered together and with reference to each other’ ” (Matter of New York County Lawyers’ Assn. v Bloomberg, 19 NY3d 712, 721 [2012], rearg denied 20 NY3d 983 [2012], quoting People v Mobil Oil Corp., 48 NY2d 192, 199 [1979]; see Albany Law School, 19 NY3d at 120). Of course, “where ‘the language is ambiguous, we may examine the statute’s legislative history’ ” (People v Ballman, 15 NY3d 68, 72 [2010], quoting Roberts v Tishman Speyer Props., L.P., 13 NY3d 270, 286 [2009]).

This is one of those instances in which the statutory language is unclear. In reciting in Mental Hygiene Law § 81.44 (d) the purposes for which a guardian may retain the property of an incapacitated person following such person’s death, the legislature listed the security of “claim [s]” and “lien[s]” before reaching “administrative costs.” If our analysis was limited to the examination of subdivision (d), a reasonable mind could conceivably side with Eastchester. Indeed, had the legislature meant in that subdivision to permit the retention of property needed to secure only administrative claims and administrative liens, it would have said as much. Stated differently, the legislature could have placed the modifier “administrative” next to the nouns “lien” and “claim,” that is, it could have explicitly provided for the retention of property for the narrow purpose of satisfying administrative liens and administrative claims (see Matter of Raynor v Landmark Chrysler, 18 NY3d 48, 56 [2011] [“(w)here a statute describes the particular situations in which it is to apply and no qualifying exception is added, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” (internal quotation marks omitted)]; cf. Mental Hygiene Law § 81.21 [a] [19] [empowering a guardian to “pay bills after the death of the incapacitated person provided the authority existed to pay such bills prior to death until a temporary administrator or executor is appointed”]). Viewed in isolation, the fact that the legislature did not insert such a limitation into subdivision (d) could suggest that it meant to allow the retention of guardianship funds to secure administrative costs, as well as any claim or any lien.

Our review, however, is not that constrained. The plain language of subdivision (d) of Mental Hygiene Law § 81.44 requires that it is to be read in conjunction with subdivision (e) of the same section, which considers the property a guardian may retain following the death of an incapacitated person. Further, our precedent requires such a review (see New York County Lawyers’ Assn., 19 NY3d at 721). In subdivision (e) of section 81.44, the legislature allowed a guardian to retain from the estate of a deceased incapacitated person “property equal in value to the claim for administrative costs, liens and debts” (emphasis added). That construct suggests that the legislature meant to permit the retention only of property equal in value to the expenses incurred with respect to the administration of the guardianship, i.e., property needed to satisfy administrative costs, administrative liens, and administrative claims.

Given the discord between subdivisions (d) and (e) of Mental Hygiene Law § 81.44, our analysis turns to the legislative history of that section (see Ballman, 15 NY3d at 72; Roberts, 13 NY3d at 286). On this point the Sponsor’s Memorandum is decisive. The Appellate Division majority correctly noted that the Sponsor’s Memorandum reflects that section 81.44 was “designed to facilitate the transition between a guardianship for an incapacitated person and an estate after the death of such incapacitated person” (Sponsor’s Mem, Bill Jacket, L 2008, ch 175 at 10, 2008 NY Legis Ann at 127; see 120 AD3d at 132). But that memorandum further explains that section 81.44 clarified “the rights of the personal representative of the estate to marshal guardianship funds and codifie[d] the right of the guardian to retain a reserve to cover reasonably anticipated administrative expenses of the guardianship” (Sponsor’s Mem, Bill Jacket, L 2008, ch 175 at 10, 2008 NY Legis Ann at 127 [emphasis added]). The reference to the retention of a reserve to cover reasonably anticipated administrative expenses is dis-positive of the question before us. Put simply, it compels the conclusion that the legislature did not intend for section 81.44 to permit a guardian to retain funds following the death of an incapacitated person for the purpose of paying a claim (other than a claim related to the administration of the guardianship) against the incapacitated person that arose before that person’s death. Inasmuch as Eastchester’s claim for medical services rendered to Shannon is unrelated to the administration of her guardianship, we conclude that Mental Hygiene Law § 81.44 does not allow FSS Yonkers to withhold from Shannon’s estate funds to pay Shannon’s debt to Eastchester.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the order of Supreme Court reinstated.

Chief Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Salaam and Stein concur.

Order, insofar as appealed from, reversed, with costs, and order of Supreme Court, Bronx County, reinstated.

      . The aforementioned order of Supreme Court was not the only order of that court at issue in this appellate practice. Indeed, Eastchester moved before Supreme Court for leave to reargue the order of that court entered in February 2013. The court denied that motion, and Eastchester also appealed to the Appellate Division from the order denying reargument (see 120 AD3d at 133). The Appellate Division subsequently dismissed that appeal (see 120 AD3d at 133), and we eventually treated DSS’s motion for leave to appeal to this Court as one seeking leave to appeal from only that part of the Appellate Division order that reversed the order of Supreme Court entered in February 2013. As such, neither the order of Supreme Court denying reargument nor the Appellate Division’s dismissal of the appeal therefrom is of consequence here.

      . New York County Lawyers’Assn, also requires that we consider subdivision (a) (4) of Mental Hygiene Law § 81.44 in conjunction with subdivisions (d) and (e) of that section. In section 81.44 (a) (4) the legislature defined the phrase “[statement of assets and notice of claim” as “a written statement under oath containing,” among other things,
      “a description of the nature and approximate value of guardianship property at the time of the incapacitated person’s death; with the approximate amount of any claims, debts or liens against the guardianship property, including but not limited to medicaid liens, tax liens and administrative costs, with an itemization and approximate amount of such costs and claims or liens.”
      As the Appellate Division majority noted, subdivision (a) (4) can be read to provide that an administrative cost is but one type of claim or lien. Inasmuch as the phrase “statement of assets and notice of claim” is used in subdivision (d) , the majority found in subdivision (a) (4) support for its interpretation of subdivision (d) as providing that an administrative cost is a type of claim or lien (see 120 AD3d at 133). However, while the language of subdivision (a) (4) supports the Appellate Division majority’s interpretation of section 81.44 (d), it does not ultimately speak to the question addressed in subdivisions (d) and (e) of section 81.44, i.e., the purposes for which a guardian may withhold property from the estate of a deceased incapacitated person and the nature of the property that may be withheld. In our view, subdivision (a) (4) further highlights the discord among the subdivisions of section 81.44 and the need for our consideration of the statute’s legislative history.