author: Read, J. Pigott, J.

text:
    [12 NE3d 1054, 989 NYS2d 624]
    In the Matter of Gabriela A., Respondent. Presentment Agency, Appellant.
    Argued and submitted February 13, 2014;
    decided April 8, 2014

      POINTS OF COUNSEL

      Robert F. Meehan, County Attorney, White Plains (Linda M. Trentacoste and James Castro-Bianco of counsel), for appellant.
    I. Gabriela A. committed acts, which if committed by an adult, would constitute the crimes of obstructing governmental administration in the second degree and resisting arrest. (People v Graham, 54 AD3d 1056; Matter of Victor I., 57 AD3d 779; Matter of Onondaga County District Attorney’s Off., 92 AD2d 32; People v Kruger, 87 AD2d 473; Matter of Shaunise R., 40 AD3d 766; Matter of Ismaila M., 34 AD3d 373; Willinger v City of New Rochelle, 212 AD2d 526; Matter of Samuel VV., 217 AD2d 863; Matter of Shannon B., 70 NY2d 458; People v Romeo, 9 AD3d 744.) II. A reasonable interpretation of Family Court Act articles 3 and 7 requires that all of the provisions be given the proper effect. (Matter of Robert J., 2 NY3d 339; Carney v Philippone, 1 NY3d 333; Matter of Albany Law School v New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106.) III. The Second Department erred by substituting its own judgment in lieu of deferring to the discretion of the Family Court as to the weight of the evidence that supports Gabriela A.’s adjudication as a juvenile delinquent. (Matter of Kwan M., 159 AD2d 707; Matter of George R., 104 AD3d 949; Matter of Charles S., 41 AD3d 484; Matter of Daniel B., 41 AD3d 711; Matter of Todd B., 190 AD2d 1035; Matter of Naiquan T., 265 AD2d 331.)

      George E. Reed, Jr., White Plains, for respondent.
    I. It is not an act of juvenile delinquency for a PINS (person in need of supervision) respondent to resist being transported to nonsecure detention. (Matter of Freeman, 103 Misc 2d 649; Matter of Dylan C., 69 AD3d 127, 16 NY3d 614; Matter of Daniel I., 57 AD3d 666; Matter of Jenny M., 305 AD2d 225; Matter of Victoria 5., 297 AD2d 323; Matter of Edwin G., 296 AD2d 7; Matter of Asia H., 289 AD2d 404; Matter of Jasmine A., 284 AD2d 452; Matter of Naquan J., 284 AD2d 1; Matter of Sylvia H., 78 AD2d 875.) II. Resisting arrest and obstructing governmental administration require an authorized arrest. (Matter of Daniel I., 57 AD3d 666; Matter of Ismaila M., 34 AD3d 373; People v Graham, 54 AD3d 1056; Willinger v City of New Rochelle, 212 AD2d 526; People v Romeo, 9 AD3d 744; Matter of Samuel VV., 217 AD2d 863; Matter of Davan L., 91 NY2d 88; Matter of Quaniqua W., 25 AD3d 380; Matter of Victor I., 57 AD3d 779; Matter of Shaunise R., 40 AD3d 766.)

      Steven Banks, The Legal Aid Society, New York City (Gary Solomon of counsel), amicus curiae.
    A child who violates a court order in a PINS (person in need of supervision) proceeding cannot be prosecuted for that violation as a juvenile delinquent when the allegations encompass absconding from nonsecure custody and other types of victimless conduct typically involved in PINS proceedings. (Matter of Naquan J., 284 AD2d 1; Matter of Jasmine A., 284 AD2d 452; Matter of Edwin G., 296 AD2d 7; Matter of Bryan JJ., 175 AD2d 416; Matter of Sylvia H., 78 AD2d 875; Matter of Jenny M., 305 AD2d 225; Matter of Daniel I., 57 AD3d 666.)
   OPINION OF THE COURT

Read, J.

In August 2011, 15-year-old Gabriela A. was adjudicated a person in need of supervision (PINS) and placed on probation for one year. Thereafter, she was subject to PINS violation petitions. Additionally, in February 2012, a juvenile delinquency petition was filed against Gabriela A., based on a complaint of physical abuse made by her mother (the February petition). On February 28, 2012, Gabriela A. appeared before Family Court in connection with her PINS violations and the February petition, and the court remanded her to a specified nonsecure detention facility. Gabriela A. immediately absconded from custody, and her probation officer, Amanda Flores, successfully sought a PINS warrant for Gabriela A. to be returned to the nonsecure facility.

On the morning of March 10, 2012, Officer Flores and five other probation officers visited Gabriela A.’s home, based on information she was staying there overnight, to execute the warrant. Gabriela A. acknowledges that she did not comply with the probation officers’ directions, but the parties dispute the severity of her resistance. The officers eventually succeeded in taking Gabriela A. into custody and transported her to the non-secure detention facility.

When Gabriela A. appeared before Family Court on March 23, 2012 to address the PINS violations and the February petition, the Westchester County Attorney (hereafter, the presentment agency) served her counsel with a juvenile delinquency petition based on Gabriela A.’s confrontation with probation officers on March 10th (the March petition). The March petition claimed generally that Gabriela A. violently resisted the officers’ attempts to take her into custody and charged her with acts which, if committed by an adult, would constitute the crimes of attempted assault in the second degree (Penal Law §§ 120.05 [1]; 110.00), resisting arrest (Penal Law § 205.30) and obstructing governmental administration (Penal Law § 195.05). Gabriela A. denied the charges. Her attorney argued that the presentment agency was improperly seeking to “bootstrap[ ] ... a PINS case into a juvenile delinquency case” inasmuch as Gabriela A.’s conduct on March 10th was “classic PINS behavior.” After fact-finding, Family Court dismissed and sealed the February petition; disposition of the PINS violations and fact-finding on the March petition were adjourned. The court remanded Gabriela A. to secure detention, citing her history of absconding, the multiple warrants issued for her and the likelihood of reoffending.

The fact-finding hearing on the March petition commenced on March 26, 2012, and continued on April 2 and 3, 2012. On the first day, the presentment agency submitted a “superseding amended petition,” alleging that on March 10, 2012 Gabriela A. had committed acts which, if committed by an adult, would constitute the crimes of resisting arrest (Penal Law § 205.30), obstructing governmental administration (Penal Law § 195.05), attempted assault in the third degree (Penal Law §§ 120.00 [1]; 110.00) and third-degree menacing (Penal Law § 120.15). The court accepted the amended petition over Gabriela A.’s attorney’s objections, and started the hearing. The presentment agency called two witnesses, Officer Flores and Officer Tony Ortiz, Jr. Gabriela A. testified on her own behalf.

Officer Flores, who had supervised Gabriela A. since she was adjudicated a PINS in August 2011, testified that after she and another female probation officer roused Gabriela A. at 9:30 a.m. on the morning of March 10th, Gabriela A. ignored repeated directives to get dressed and come along with them and to quit playing with her cell phone and texting friends; she yelled obscenities at the officers and screamed at them to get out of her bedroom. Further, when they “attempted to restrain [Gabriela A.] so [they] could place her securely in handcuffs,” she “was not compliant” and “hid[ ] her arms between her body and the wall ... so [the officers] couldn’t grab her arms to restrain her ... all the while flailing her torso and her shoulders about.” Officer Flores described Gabriela A. as “very aggressive,” and opined that her behavior “put[ ] everyone in a dangerous situation.” Further, “at one point [Gabriela A.] grabbed . . . the open [hand]cuff,” which made Officer Flores “extremely nervous” because “[a] handcuff[ ] open in that fashion [could] be used as a weapon.” She described leaning her “right shoulder into [Gabriela A.’s] back” to “pry [Gabriela A.’s] fingers off of the cuff.” Officer Flores testified that she suffered pain in her right shoulder as a result. On cross-examination, however, Officer Flores conceded that she did not mention this injury or “anything about being afraid of [Gabriela A.]” in a report she wrote shortly after the incident.

Officer Ortiz, who was stationed in the hallway outside Gabriela A.’s bedroom door, testified that she exhibited aggressive behavior and tried to run away down the hallway. He grabbed Gabriela A. because he “didn’t want her either running out of the apartment or hurting her mother.” Officer Ortiz reported further that Gabriela A. “was stomping her feet” as the officers were trying to put handcuffs on her, and that she was “non-compliant and . . . was not going to just surrender herself on the warrant.” Officer Ortiz testified that he was concerned when Gabriela A. grabbed the handcuff since it was “open . . . and serrated, [and] could be used as a weapon.”

After the presentment agency rested, Gabriela A.’s attorney moved to dismiss the petition on the ground that the agency failed to make out a prima facie case. He argued there was “no indication in [the officers’] testimony that [Gabriela A.] was trying to injure either of them.” Additionally, he claimed, there was insufficient proof of the officers’ fear of imminent injury to justify a charge of menacing. Finally, Gabriela A.’s attorney asserted that the charges of resisting arrest and obstructing governmental administration were improperly “bootstrapp[ed]” to her PINS case. The presentment agency opposed the motion, arguing that “bootstrapping” was not prohibited for “true delinquency acts.” Family Court denied the motion to dismiss.

Gabriela A. then testified on her own behalf. She told essentially the same story as Officers Flores and Ortiz, but insisted that she was not violent. Gabriela A. acknowledged that she refused to get out of bed and attempted to run away down the hallway. She also acknowledged moving her body around in an attempt to avoid being handcuffed. Although she admitted that she “tried to make it hard for [the officers]” to take her into custody, Gabriela A. denied trying to hit or kick anyone.

At the conclusion of the fact-finding hearing, Family Court found that Gabriela A. had committed acts which, if committed by an adult, would constitute the crimes of resisting arrest and obstructing governmental administration. The judge dismissed the counts alleging attempted assault and menacing, and remanded Gabriela A. to secure detention pending disposition.

At the dispositional hearing on April 11, 2012, Gabriela A.’s attorney again unsuccessfully argued that Family Court was prohibited from adjudicating his client a juvenile delinquent because she had only been found to have acted in a manner consistent with PINS behavior, not juvenile delinquency. On the PINS violations, Family Court placed Gabriela A., with her consent, in the custody of the Commissioner of Social Services for Westchester County for placement for one year at an agreed-upon nonsecure detention facility. On the March petition, the court granted Gabriela A. a one-year conditional discharge to expire on April 11, 2013. Under the terms of the conditional discharge, Gabriela A. was to be physically transferred from secure to nonsecure detention no later than April 13, 2012. Gabriela A. appealed.

On February 27, 2013, the Appellate Division reversed the dispositional order, vacated the underlying fact-finding order, dismissed the March petition and remanded the matter to Family Court for further proceedings pursuant to Family Court Act § 375.1 (103 AD3d 888 [2d Dept 2013]). Preliminarily, the court noted that “[a] PINS is one who is . . . incorrigible, ungovernable or habitually disobedient and beyond the lawful control of a parent or other person legally responsible for such child’s care” (id. at 889 [internal quotation marks and citations omitted]). The court concluded that “[u]nder the particular circumstances of this case, [Gabriela A.’s] conduct was consistent with PINS behavior, not with juvenile delinquency,” adding that “Family Court may not do indirectly what it is prohibited from doing directly — placing a PINS in a secure facility” (id. [internal quotation marks and citations omitted]). The presentment agency sought leave to appeal, which we granted on June 6, 2013 (21 NY3d 857 [2013]). We now affirm.

A PINS is, among other things, “[a] person less than eighteen years of age who ... is incorrigible, ungovernable or habitually disobedient and beyond the lawful control of a parent or other person legally responsible for such child’s care, or other lawful authority” (Family Ct Act § 712 [a]). By contrast, a “juvenile delinquent,” as relevant here, is a person between 8 and 15 years old who “having committed an act that would constitute a crime if committed by an adult... is not criminally responsible for such conduct by reason of infancy” (see Family Ct Act § 301.2 [1]). A PINS cannot be confined to a secure facility (see Family Ct Act § 720 [1], [2]); a juvenile delinquent, however, may be remanded to secure detention (see id. § 353.3 [1]).

Family Court Act § 718 sets out the procedure and the dispositional options available to the court when a PINS runs away. A peace officer (including, as here, probation officers) may “apprehend, restrain, and return such child” to the placement facility or foster home from which the PINS absconded. The probation officers whom Gabriela A. resisted or obstructed were acting pursuant to this section, attempting to return her to the nonsecure facility where she had been placed. Family Court implicitly equated Gabriela A.’s resistance to the restraint authorized by Family Court Act § 718 to the crimes of resisting arrest and obstructing governmental administration, and thus concluded that she was a juvenile delinquent under Family Court Act § 301.2.

The crime of resisting arrest requires that a person intentionally prevent “an authorized arrest” (Penal Law § 205.30). The restraint of a PINS pursuant to Family Court Act § 718, however, is not the same as a criminal arrest (see Matter of Bernard G., 247 AD2d 91, 95 [1st Dept 1998]). A PINS proceeding is fundamentally civil in nature. In Matter of Marrhonda G. (81 NY2d 942, 945 [1993]), for example, we concluded that for Fourth Amendment purposes, a section 718 detention did not entitle a Port Authority police officer to conduct a full warrant-less search of a young man’s bag. We reasoned that the detained youth’s bag could only have been searched “if [he] had been placed under arrest and the bag then searched as an incident thereto” (id.). Thus, a PINS who resists being restrained or transported back to a placement facility is not resisting arrest within the meaning of Penal Law § 205.30.

Next, a person is guilty of the misdemeanor of obstructing governmental administration when he or she “intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference” (Penal Law § 195.05). Probation officers qualify as “public servants” within the broad definition supplied in the Penal Law (see Penal Law § 10.00 [15]), and Gabriela A. admitted that she wanted to “make it hard” for Officer Flores and the other probation officers to handcuff and take her to the nonsecure facility. On the other hand, the legislature has defined a PINS to include someone who is “habitually disobedient and beyond the lawful control of. . . lawful authority” (Family Ct Act § 712 [a]). Thus, a PINS’s disobedience and obstruction of “lawful authority” is not necessarily the same as an adult’s. Since Family Court Act § 720 (1) and (2) forbid placement of a PINS in a secure facility, the legislature surely did not intend the type of behavior that might cause a child to be designated a PINS in the first place to become the basis for secure detention (see Matter of Naquan J., 284 AD2d 1, 5 [2d Dept 2001]).

In a related line of cases, the Appellate Division has considered whether the Family Court’s contempt powers can be used to bring a PINS into compliance with the court’s orders or conditions by so-called “bootstrapping.” That is, the issue in these cases was whether the child’s failure to comply with PINS requirements — what the courts referred to as engaging in typical PINS-type behavior — supplied a basis for imposing the sanction of criminal contempt, thus converting a PINS into a juvenile delinquent. The uniform conclusion has been that using the contempt power in this way is not allowed (see Matter of Daniel I., 57 AD3d 666, 667 [2d Dept 2008] [damaging electronic monitoring bracelet and breaking curfew]; Matter of Edwin G., 296 AD2d 7, 10-11 [1st Dept 2002] [PINS absconded from placement]; Matter of Jasmine A., 284 AD2d 452, 453 [2d Dept 2001] [elopement]). These cases construed the “Contempts” provision in Family Court Act § 156, which allows use of the contempt power in Family Court proceedings (both PINS and juvenile delinquency) when there is no “specific punishment or other remedy” provided elsewhere. In the case of a disobedient or absconding PINS, Family Court Act article 7 provides only for a return to placement or assignment to a new placement; it does not authorize contempt if the PINS fails to comply with the dispositional alternative imposed upon a PINS adjudication (see Family Ct Act § 756).

Physical resistance to probation officers, however, is different from ignoring a court order. Gabriela A.’s fractious behavior arguably posed a danger to herself, the probation officers and/or her family, even though Family Court found that she did not attempt to assault or menace the officers. But the Appellate Division, contrary to Family Court, found that Gabriela A.’s resistance fell within the bounds of acting “beyond the lawful control of . . . lawful authority” rather than Penal Law § 195.05. On this record, where Family Court and the Appellate Division disagreed when evaluating Gabriela A.’s misbehavior, we simply conclude that the Appellate Division’s factual findings more nearly comport with the weight of the evidence (see e.g. Matter of State of New York v Daniel F., 19 NY3d 1086, 1087 [2012]). In short, we are not, as the dissent puts it, “endorsing a] trend” in the Appellate Division prohibiting “bootstrapping” or “proposing a] test” to immunize a PINS from juvenile delinquency proceedings for obstructing governmental administration (see dissenting op at 164-165).

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Pigott, J.

(dissenting). There has been a spate of recent Appellate Division opinions that have held that “Family Court may not ‘bootstrap’ a PINS adjudication onto one alleging juvenile delinquency by charging a PINS who absconds from a non-secure facility with conduct that, if committed by an adult, would constitute escape” (Matter of Daniel I., 57 AD3d 666, 667-668 [2d Dept 2008]), or obstructing governmental administration (see id. at 668), criminal mischief (see id.) or criminal contempt (see Matter of Edwin G., 296 AD2d 7, 12 [1st Dept 2002]; Matter of Jasmine A., 284 AD2d 452, 453 [2d Dept 2001]; Matter of Naquan J., 284 AD2d 1, 6 [2d Dept 2001]). “Bootstrapping,” as I see it, means using misconduct of the type that made someone a PINS in the first place (such as running away from home or a nonsecure facility) to subject a PINS to a juvenile delinquency petition charging acts that, if committed by an adult, would constitute crimes. The theory is that a PINS may not be adjudicated a juvenile delinquent on the basis of an action that “while defined statutorily as a crime, [is] a common characteristic of PINS behavior and more harmful to the juvenile than to society” (Daniel I., 57 AD3d at 668).

The majority endorses this trend, suggesting that, as a PINS, Gabriela A. may not be charged with resisting arrest or obstructing governmental administration for her physical resistance to being restrained or transported to a placement facility (see majority op at 162-163). Under the test seemingly proposed by the majority, the presentment agency must first, before subjecting a PINS to a juvenile delinquency petition, determine whether the PINS was engaging in “the type of behavior that might cause a child to be designated a PINS” (majority op at 163). For example, before alleging that a PINS engaged in conduct that, if committed by an adult, would constitute obstructing governmental administration, the presentment agency must divine whether the behavior of the PINS is tantamount to intentionally obstructing governmental function or, rather, is merely “acting ‘beyond the lawful control of . . . lawful authority’ ” (majority op at 163, quoting Family Ct Act § 712 [a]).

The proposed test is unworkable. It will force probation officers, presentment agencies and courts to analyze whether specific instances of misconduct fit within the very abstract and ill-defined concept of “PINS-type behavior” or behavior “more harmful to the juvenile than to society.” Such an assessment will make for constant disagreements of judgment. Of course, the history of the present case illustrates this. On the one hand, the Appellate Division and a majority of this Court find Gabriela A.’s conduct to be the type of “more harmful to the juvenile than to society” behavior characteristic of a PINS. On the other hand, the presentment agency, Family Court, and two Judges of this Court tend to consider her behavior potentially dangerous to others. I would reject the Appellate Division’s prohibition of “bootstrapping” and simply consider each case of misbehavior by a PINS on its own facts, when determining whether it rises to the level of juvenile delinquency.

Notably, the majority’s proposed test may immunize from juvenile delinquency proceedings even a PINS who, because of his physical stature and strength, is far more intimidating and dangerous to parole officers than Gabriela A. The majority’s willingness to consider a PINS as merely fractious and ungovernable, rather than truly harmful, would be called into question were the PINS a male, six feet tall and weighing 180 pounds. Fortunately, the majority seems to reject the suggestion that the physical resistance to probation officers described in the officers’ testimony but denied by Gabriela A. (trying to stomp on officers’ feet) would be mere “PINS-type behavior.” But I suspect that if a large young man had engaged in even the less extreme resistance that Gabriela A. admitted to (flailing her body around and grabbing an open handcuff), my colleagues in the majority would conclude that he was properly adjudged a juvenile delinquent, even though his actions were identical to Gabriela A.’s.

Moreover, I disagree with the majority’s theory that resisting restraint under Family Court Act § 718 is fundamentally different from the crime of resisting arrest (majority op at 162). It may be misleading to describe detention pursuant to Family Court Act § 718 as a “full custodial arrest” (see Matter of Bernard G., 247 AD2d 91, 94-95 [1st Dept 1998]; contrast Matter of Jamel J., 246 AD2d 388, 389 [1st Dept 1998], Matter of Michael J., 233 AD2d 198, 199 [1st Dept 1996], Matter of Mark Anthony G., 169 AD2d 89, 93 [1st Dept 1991]), because the Fourth Amendment implications are somewhat different. However, this does not mean that the restraint of a PINS under Family Court Act § 718 is not “an authorized arrest” within the meaning of Penal Law § 205.30. Consequently, there is no bar as a matter of law to alleging resisting arrest in a juvenile delinquency petition, on the basis of physical resistance by a PINS.

In my view, the presentment agency did exactly as it should in filing the petition alleging violent conduct in the form of acts that, if committed by an adult, would constitute resisting arrest and obstructing of governmental administration. Family Court, in turn, did exactly as it should, in making the factual determination that Gabriela A. was guilty of such conduct. Overturning that determination, on the ground that Gabriela A.’s behavior is more consistent with acting beyond the control of lawful authority than with criminal conduct, downplays the very real risk of harm to the probation officers in the present case, and will be interpreted as immunizing a PINS who engages in conduct threatening to arresting officers from prosecution as a juvenile delinquent. Furthermore, the majority’s decision does not benefit children who fall into the PINS category. Like the PINS statutes, the laws that permit juvenile delinquency proceedings are intended in significant part to protect these young men and women from their own worst impulses and help them straighten out. Sometimes “tough love” — including some period of confinement in a secure facility — is the best way to accomplish that. Indeed, it seems to have worked for Gabriela A., who, according to her counsel, is now an exemplary teenager. There is no good reason to restrict the efforts of caring and devoted presentment agency employees and Family Court judges, simply on the basis that their efforts are considered “bootstrapping.”

I would reverse the Appellate Division’s order, reinstate Family Court’s fact-finding order and order of disposition, and reinstate the presentment agency’s petition.

Chief Judge Lippman and Judges Graffeo, Rivera and AbdusSalaam concur with Judge Read; Judge Pigott dissents in an opinion in which Judge Smith concurs.

Order affirmed, without costs.

      . A “ ‘[n] on-secure detention facility’ ” means “[a] facility characterized by the absence of physically restricting construction, hardware and procedures” (Family Ct Act § 712 [d]); by contrast, a “ ‘[s]ecure detention facility’ ” means “[a] facility characterized by physically restricting construction, hardware and procedures” (id. § 712 [c]). As it turned out, then, Gabriela A. experienced the “tough love” of secure detention for only the roughly three-week duration of the juvenile delinquency proceeding on the March petition (see dissenting op at 166).

      . In March 2013, the Westchester County Department of Social Services informed Family Court that Gabriela A. had “responded positively to services” at the nonsecure facility where she was placed in April 2012, “made excellent progress academically” and “actively participated in improving communication with her family.” As a result, the Department did not seek to extend Gabriela A.’s PINS placement. We note that the expiration of Family Court’s dispositional order does not moot this appeal since the Appellate Division’s order has the potential for future legal consequences (see e.g. Family Ct Act § 381.2 [2]).

      . Family Court Act § 712 (a) also permits finding someone a PINS who is habitually truant, commits certain minor marijuana possession offenses, or who appears to be a “sexually exploited child.”

      . While Gabriela A.’s attorney employed this term, the Appellate Division did not. And however the dissent may define “bootstrapping” (see dissenting op at 164), the Appellate Division, as noted earlier, has generally reserved this term for discussions of Family Court’s use of its contempt powers.


source: Caselaw Access Project

author: Graffeo, J.

license: Public Domain

text:
    [12 NE3d 1072, 989 NYS2d 642]
    In the Matter of the Board of Managers of French Oaks Condominium, Respondent, v Town of Amherst et al., Appellants, and Williamsville Central School District, Intervenor-Respondent.
    Argued March 24, 2014;
    decided May 1, 2014

      POINTS OF COUNSEL

      Phillips Lytle LLP, Buffalo (Craig A. Leslie and Paul Morrison-Taylor of counsel), for appellants.
    I. The appraisal by petitioner’s appraiser should have been stricken and the petition dismissed. (Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179; Matter of East Med. Ctr., L.P. v Assessor of Town of Manlius, 16 AD3d 1119; Pritchard v Ontario County Indus. Dev. Agency, 248 AD2d 974; Matter of Niagara Mohawk Power Corp. v Town of Tonawanda Assessor, 233 AD2d 920; Matter of Central N.Y. Oil & Gas Co., L.L.C. [Porto Bagel, Inc.], 106 AD3d 1152; Matter of Niagara Mohawk Power Corp. v Town of Bethlehem Assessor, 225 AD2d 841; Matter of Orange & Rockland Utils. v Williams, 187 AD2d 595; Matter of State of New York v Town of Thurman, 183 AD2d 264; Matter of 50540 Realty v Tax Commn. of City of N.Y., 136 AD2d 699; Matter of Johnson v Town of Haverstraw, 133 AD2d 86.) II. Petitioner’s appraiser’s capitalization rate calculation was fatally flawed, and otherwise entitled to no weight. (Matter of John P. Burke Apts. v Swan, 137 AD2d 321; Matter of Continental Assur. Co. v Mayor of Inc. Vil. of Lynbrook, 113 AD2d 795, 66 NY2d 915.)

      Amigone, Sanchez & Mattrey LLP, Buffalo (B. P. Oliverio of counsel), for respondent.
    I. The Fourth Department was correct when it affirmed Supreme Court and held that petitioner provided substantial evidence of a credible dispute with respect to valuation of the condominium units. (Matter of OCG L.P. v Board of Assessment Review of the Town of Owego, 79 AD3d 1224; Matter of Tennessee Gas Pipeline Co. v Town of Sharon Bd. of Assessors, 298 AD2d 758, 99 NY2d 506; Matott v Ward, 48 NY2d 455; Price v New York City Hous. Auth., 92 NY2d 553; Riccio v NHT Owners, LLC, 79 AD3d 998; Brown v Concord Nurseries, Inc., 53 AD3d 1067; National Fuel Gas Supply Corp. v Goodremote, 13 AD3d 1134; Champlain Natl. Bank v Brignola, 249 AD2d 656; People v First Am. Corp., 76 AD3d 68, 18 NY3d 173; Welch Foods v Town of Westfield, 222 AD2d 1053.) II. The Fourth Department was correct when it affirmed Supreme Court and held that petitioner showed by a preponderance of the evidence that the condominium units were overassessed. (Matter of Gordon v Town of Esopus, 296 AD2d 812; Matter of City of Syracuse Indus. Dev. Agency [Alterm, Inc.], 20 AD3d 168; Matter of Greater N. Y. Sav. Bank v Commissioner of Fin., 15 AD3d 661; Matter of Addis Co. v Srogi, 79 AD2d 856, 53 NY2d 603; Matter of Schoeneck v City of Syracuse, 93 AD2d 988; Matter of Connecticut Mut. Life Ins. Co. v Srogi, 101 AD2d 698; Matter of Blue Hill Plaza Assoc. v Assessor of Town of Orangetown, 230 AD2d 846, 89 NY2d 804; Matter of Rice v Srogi, 70 AD2d 764; Matter of 50540 Realty v Tax Commn. of City of N.Y., 136 AD2d 699.) III. The Fourth Department was correct when it affirmed Supreme Court and held adoption of the Town’s net operating income and application of petitioner’s capitalization rate was not error. (Matter of Schoeneck v City of Syracuse, 93 AD2d 988; Matter of City of New York [Oceanview Terrace], 42 NY2d 948; National Fuel Gas Supply Corp. v Goodremote, 13 AD3d 1134; Champlain Natl. Bank v Brignola, 249 AD2d 656; Onondaga Sav. Bank v Cale Dev. Co., 63 AD2d 415; Matter of John P. Burke Apts. v Swan, 137 AD2d 321; Matter of Continental Assur. Co. v Mayor of Inc. Vil. of Lynbrook, 113 AD2d 795, 66 NY2d 915; Kurnick v State of New York, 54 AD2d 1098; Matter of Thomas v Davis, 96 AD3d 1412, 101 AD3d 1699, 21 NY3d 860.) IV. The Town’s brief ignores well established law. (Matter of Central N.Y. Oil & Gas Co., L.L.C. [Porto Bagel, Inc.], 106 AD3d 1152; Matter of Bialystock & Bloom v Gleason, 290 AD2d 607; Matter of Gullo v Semon, 265 AD2d 656.)
   OPINION OF THE COURT

Graffeo, J.

In this tax certiorari proceeding, the issue is whether petitioner rebutted the presumption of validity that attached to the tax assessment of its real property. Because petitioner’s proof failed to provide the factual and statistical information needed to substantiate its calculations, we conclude that the presumption was not overcome. The order of the Appellate Division should therefore be reversed and the petition dismissed.

Petitioner is the board of managers of the French Oaks Condominium (the Board), a residential complex located in the Town of Amherst, New York. The development consists of 39 individual units of varying sizes and layouts, each built between 2003 and 2005. Respondent Town of Amherst assessed the aggregate property at $5,176,000 for the 2009-2010 tax year. In July 2009, the Board commenced this Real Property Tax Law (RPTL) article 7 proceeding against the Town, the Town’s assessor and the Town’s Board of Assessment Review (collectively, the Town) challenging the tax assessment as excessive.

In support of its petition, the Board submitted an appraisal report that set the valuation of the property at $4,265,000— nearly one million dollars less than the assessment roll figure. In reaching this conclusion, the Board’s appraiser applied an income capitalization method to establish the market value of the complex, treating each condominium unit as if it were an income-producing rental. Under the direct capitalization methodology, the first step required determination of the net operating income of the condominiums. The appraiser computed the net operating income by comparing the 39 units to similar apartments to estimate the market rental value of the condominiums, and then subtracted the expenses incurred in managing the condominiums. After making some upward and downward adjustments to account for the differences between the various units and the comparable apartments, the appraiser calculated the total annual net operating income at $541,754.

The next step in the capitalization of income formula is to determine the appropriate capitalization rate. This can be accomplished by taking the annual net operating income of a comparable and dividing that figure by its sale price (see Appraisal Institute, The Appraisal of Real Estate at 514 [11th ed 1996]). To make this computation, the Board’s appraiser identified four purportedly comparable apartment complexes — all constructed between 1959 and 1978 — in the vicinity of the French Oaks development. To compute the net operating income for the four comparables, the appraiser had to ascertain their gross incomes and expenses. Although the appraiser offered specific figures for these items in his report, he indicated that they were derived from what he referred to as “forecast financials.” The report did not explain how the appraiser arrived at these income and expense figures and did not otherwise identify the sources for this component. The results reached after dividing the estimated net operating income of each comparable property by its sale price were four capitalization rates that ranged from 8.59% to 10.36%. The appraiser settled on a median capitalization rate of 9.5% and added a “tax factor” of 3.27% to the capitalization rate for a final capitalization rate of 12.7%.

The last step in the income capitalization methodology required dividing the property’s net operating income by the final capitalization rate. Once the proffered net operating income of $541,754 was divided by the final capitalization rate of 12.7%, the appraisal report set forth the conclusion that the 39-unit complex should have been assessed at approximately $4,265,000 for the 2009-2010 tax year.

The Town offered an appraisal that also utilized the income capitalization method but reached a different valuation for assessment purposes. Unlike the Board’s appraiser, the Town’s expert inspected the interior of each of the 39 condominium units and included detailed photographs and information in the report. He estimated the net operating income at $535,423 and computed an initial capitalization rate of 7.6%, to which he added a tax factor of 2.84% for a final capitalization rate of 10.44%. After dividing the net operating income by the capitalization rate, which resulted in an estimated value of $5,128,573, the expert deducted $49,725 in personal property items for an appraised market value of $5,080,000 (this valuation presented by the Town’s expert differed only slightly from the assessed value assigned by the Town’s assessor for the tax roll).

A two-day hearing was conducted before a referee. Following the testimony of the Board’s appraiser, which largely tracked his appraisal report, the Town moved to dismiss the petition on the basis that the Board had failed to meet its initial burden of adducing substantial evidence to rebut the presumption that the Town’s tax assessment was valid. The referee reserved decision and the Town presented its case through the testimony of its expert.

After the hearing, the referee denied the Town’s dismissal motion, holding that the Board’s proof rebutted the presumption of validity. Weighing the evidence presented by both parties, the referee concluded that the Board had established by a preponderance of the evidence that its property was overassessed. In reaching this determination, the referee adopted the Town’s net operating income of $535,423 and its tax factor of 2.84%, but accepted the Board’s initial capitalization rate of 9.5% (for a final capitalization rate of 12.3%). Dividing the net operating income of $535,423 by the final capitalization rate of 12.3%, the referee held that the complex should have been assessed at $4,353,030, significantly less than the $5,176,000 value listed on the 2009-2010 tax roll. Supreme Court thereafter directed the Town to amend its tax roll to reflect the referee’s decision and remit any tax overpayments to the Board.

The Town appealed and the Appellate Division, with two Justices dissenting, affirmed (103 AD3d 1102 [4th Dept 2013]). The majority found that the taxpayer had rebutted the presumption; that its appraisal adequately complied with 22 NYCRR 202.59 (g) (2) (the applicable regulation containing the requirements for appraisal reports); and that the referee did not err in accepting the initial capitalization rate of the Board’s appraiser — the only item from the Board’s appraisal the referee relied upon. The dissenters would have adopted the Town’s proposed value in its entirety, reasoning that the capitalization rate analysis conveyed in the Board’s appraisal was entitled to no weight because its appraiser “failed to offer any factual support for the great majority of his figures” (id. at 1110 [Peradotto and Carni, JJ., dissenting]). In particular, the dissent concluded that the analysis of the Board’s appraiser was deficient since he relied only on his “personal exposure” to at least three of the four comparable properties he used to calculate the capitalization rate (id. at 1109). Hence, “[i]n the absence of any documentary or tangible evidence, respondents’ counsel could not determine whether petitioner’s appraiser accurately reported the financial figures of the allegedly comparable properties, nor can we make such a determination” (id. at 1110).

The Town appealed as of right under CPLR 5601 (a) based on the two-Justice dissent. We subsequently denied the Board’s motion to dismiss the appeal predicated on its claim that the double dissent was not on a question of law (21 NY3d 956 [2013]).

Before us, the Town maintains that the Board failed to rebut the presumption that the tax assessment was accurate and the petition should have been dismissed. The Town asserts that the Board’s appraisal should have been disregarded because it did not substantially comport with the dictates of 22 NYCRR 202.59 (g) (2) in that it failed to adequately disclose the factual underpinnings and sources that justified the appraiser’s calculations. The Town contends that the Board did not furnish essential information pertaining to each of the 39 units, as well as the comparable apartments, so that the adjustments made to estimate the complex’s market rental value under step one of the direct capitalization methodology were inadequate for review. Likewise, the Town urges that the Board’s appraiser did not include sufficient documentary proof or data supporting the figures related to the four comparable properties from which the appraiser derived his capitalization rate under step two of the formula. In response, the Board asks us to affirm the reduction of its tax assessment, contending that the Appellate Division majority correctly concluded that its appraiser supplied sufficient facts regarding the condominium units and the comparable rental properties relevant to the first step and an adequate explanation for the computation of the capitalization rate under the second step.

In an RPTL article 7 tax certiorari proceeding, “a rebuttable presumption of validity attaches to the valuation of property made by the taxing authority” (Matter of Roth v City of Syracuse, 21 NY3d 411, 417 [2013]). Consequently, a taxpayer challenging the accuracy of an assessment bears the initial burden of coming forward with substantial evidence that the property was overvalued by the assessor. In the context of tax assessment cases, we have explained that the substantial evidence standard requires the taxpayer to “demonstrate the existence of a valid and credible dispute regarding valuation” (Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179, 188 [1998]). If the taxpayer satisfies this threshold burden, the presumption disappears and the court “must weigh the entire record, including evidence of claimed deficiencies in the assessment, to determine whether petitioner has established by a preponderance of the evidence that its property has been overvalued” (id.). But where a taxpayer fails to rebut the presumption, the municipality’s assessor has no obligation to go “forward with proof of the correctness of [its] valuation,” and the petition is to be dismissed (id. at 187 [internal quotation marks and citation omitted]).

A taxpayer will most often attempt to meet the substantial evidence requirement by offering a “detailed, competent appraisal based on standard, accepted appraisal techniques and prepared by a qualified appraiser” (Matter of Niagara Mohawk Power Corp. v Assessor of Town of Geddes, 92 NY2d 192, 196 [1998]). The Uniform Rules for the New York State Trial Courts prescribe the basic requirements for written appraisals:

“The appraisal reports shall contain a statement of the method of appraisal relied on and the conclusions as to value reached by the expert, together with the facts, figures and calculations by which the conclusions were reached. If sales, leases or other transactions involving comparable properties are to be relied on, they shall be set forth with sufficient particularity as to permit the transaction to be readily identified, and the report shall contain a clear and concise statement of every fact that a party will seek to prove in relation to those comparable properties. The appraisal reports also may contain photographs of the property under review and of any comparable property that specifically is relied upon by the appraiser, unless the court otherwise directs” (22 NYCRR 202.59 [g] [2]).

Although we have not previously had occasion to analyze this regulation, Appellate Division case law is instructive. Courts construing this provision have held that an appraisal should be disregarded when a party violates section 202.59 (g) (2) by failing to adequately “set forth the facts, figures and calculations supporting the appraiser’s conclusions” (Pritchard v Ontario County Indus. Dev. Agency, 248 AD2d 974, 974 [4th Dept 1998]; see also Matter of Thomas v Davis, 96 AD3d 1412, 1414 [4th Dept 2012]; Matter of Johnson v Kelly, 45 AD3d 687, 687 [2d Dept 2007]; Matter of State of New York v Town of Thurman, 183 AD2d 264, 268-269 [3d Dept 1992]). The reasonableness of this rule is obvious since noncompliance with 22 NYCRR 202.59 (g) (2) frustrates the primary objectives of these requirements — to afford “opposing counsel the opportunity to effectively prepare for cross-examination” (Matter of Gullo v Semon, 265 AD2d 656, 657 [3d Dept 1999]) and to enable the courts to undertake meaningful review of appraisals. With these principles in mind, we examine the adequacy of the Board’s proof at the hearing.

Putting aside the other claimed inadequacies identified by the Town, we focus on the step-two capitalization rate analysis provided by the Board’s appraiser, which was critical to the outcome of this case and the only figure submitted by the taxpayer that was adopted by the referee. The appraisal identified four comparable apartment complexes used to calculate the capitalization rate, setting forth the sale price, gross income, expenses and net operating income for each of the rental properties (see Appraisal Institute, The Appraisal of Real Estate at 514 [11th ed] [“Deriving capitalization rates from comparable sales is the preferred technique when sufficient data on sales of similar, competitive properties are available”]). Since net operating income is one half of the equation in determining the capitalization rate (net operating income divided by sales price), an accurate calculation is of paramount importance. But other than referencing “forecast financials,” the appraiser did not provide the sources of the income or expense figures related to each comparable (see id. [“Data on each property’s sale price, income, expenses, financing terms, and market conditions at the time of sale are needed”]).

More importantly, the hearing testimony of the Board’s appraiser revealed that he had little to no confirmable data to support the income and expense numbers he employed to derive the capitalization rate. During his direct examination, the appraiser asserted that he relied on “very good” and “very strong” data that came from “certified sources.” On cross-examination, however, he conceded that he had no certified expense or income information and instead had relied on “forecasted economic indicators” with respect to the apartment buildings. In fact, he could identify only two documents in the record that provided any “limited historic operating expenses,” and this information was for only two comparables and did not correlate to the numbers used in the appraisal report. He admitted that he had no documents supporting his analysis as to the other two comparable properties. When pressed, he proffered that the relevant figures were based on his “personal exposure” to the complexes, i.e., his own unverifiable knowledge. But as the Appellate Division dissenters aptly recognized, “[a]n appraiser cannot simply list financial figures of comparable properties in his or her appraisal report that are derived from alleged personal knowledge; he or she must subsequently ‘prove’ those figures to be facts at trial” (103 AD3d at 1110 [Peradotto and Garni, JJ., dissenting]). Simply put, the record before us affords no basis to check or test whether the net operating incomes for these four properties — and the capitalization rates adduced from them — were valid, or even in the ballpark.

In sum, although the substantial evidence standard is not a heavy one, “the documentary and testimonial evidence proffered by petitioner [must be] based on sound theory and objective data” (Matter of FMC Corp., 92 NY2d at 188 [internal quotation marks and citation omitted]). The Board in this case failed to meet this threshold because its appraiser did not support the proposed capitalization rate with objective data necessary to substantiate the component calculations. As a result of this deficiency in proof, the Board did not rebut the presumption that the tax assessment of $5,176,000 was valid.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

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

Order reversed, with costs, and petition dismissed.

      . The Board later brought a second RPTL article 7 proceeding seeking review of the tax assessment for the 2010-2011 tax year. The parties stipulated that a referee would resolve the first proceeding and that decision would apply to the second proceeding.

      . When assessed real estate taxes are presumed to be incorrect, appraisers may add a tax factor rather than deducting the assessed taxes as expenses. Here, the Board’s appraiser calculated the tax factor by dividing the Town’s overall tax rate ($32.68 per thousand) by 1,000.

      . Because the net operating incomes offered by the Board’s appraisal ($541,754) and the Town’s report ($535,423) were quite close, the disparity in their ultimate valuations is explained by the difference in their respective capitalization rates. Hence, the merit of the Board’s argument was based in large part on the persuasiveness of the capitalization rate proposed by its appraiser.

      . The Board further suggests that we cannot review the threshold issue of whether it rebutted the presumption through substantial evidence because the two-Justice dissent at the Appellate Division was not predicated on this issue. It is well settled, however, that once an appeal lies as of right under CPLR 5601 (a), an appellant may, on the ensuing appeal, seek review of all questions properly raised below (see Matter of Duchnowski, 31 NY2d 991 [1973]). The issue is therefore properly before us.

      . 22 NYCRR 202.59 applies to tax assessment review proceedings outside the City of New York. 22 NYCRR 202.60, applicable to tax certiorari proceedings brought in the counties within the City of New York, contains a provision with similar operative language (see 22 NYCRR 202.60 [g] [3]). The only distinction is that 22 NYCRR 202.60 (g) (3) generally requires appraisal reports to include photographs of the assessed property and any comparable properties, whereas 22 NYCRR 202.59 (g) (2) merely permits such photographs.

      . The Board’s appraiser also acknowledged that there were more recent sales of three of the four comparable properties that he did not consider in his analysis.


author: Pigott, J. Graffeo, J.

text:
    [12 NE3d 1091, 989 NYS2d 661]
    The People of the State of New York, Respondent, v Anthony Lewis, Appellant.
    Argued February 12, 2014;
    decided May 1, 2014

      POINTS OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City (Susan H. Salomon of counsel), for appellant.
    I. The trial court violated CPL 310.20 (2) and thereby committed reversible error by submitting a verdict form that, for the overwhelming majority of counts, listed alleged crime locations, not complainants. (People v Miller, 18 NY3d 704; People v Laing, 79 NY2d 166; People v Owusu, 93 NY2d 398; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; People v Martinez, 83 NY2d 26; People v Grega, 72 NY2d 489; People v Spann, 56 NY2d 469; People v Rodriguez, 17 NY3d 486; People v Bailey, 13 NY3d 67; People v Baghai-Kermani, 84 NY2d 525.) II. The trial court’s rulings and counsel’s inaction wrongly denied appellant the opportunity to challenge the prosecution’s warrantless installation of a GPS tracking device on his car, conduct that violated People v Weaver (12 NY3d 433 [2009]) — a decision that was pending prior to and during his trial — and conduct about which appellant himself pressed counsel (and the court) prior to trial. (People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137; Strickland v Washington, 466 US 668; People v Turner, 5 NY3d 476; People v Baker, 14 NY3d 266; People v Kneitel, 33 AD3d 816; People v Jean-Baptiste, 11 NY3d 539; Mountain View Coach Lines v Storms, 102 AD2d 663; People v Martello, 93 NY2d 645; Griffith v Kentucky, 479 US 314.) III. The Appellate Division failed to properly conduct a weight-of-evidence review of appellant’s challenges to his larceny convictions. (People v Noble, 86 NY2d 814; People v Danielson, 9 NY3d 342; People v Johnson, 10 NY3d 875; People v Dekle, 56 NY2d 835; People v Dlugash, 41 NY2d 725; People v Malagon, 50 NY2d 954; People v Esquilin, 37 AD3d 197; People v Chavis, 91 NY2d 500; People v Ford, 11 NY3d 875; People v Watson, 284 AD2d 212.) IV By peremptorily rejecting appellant’s requests for a voice-identification expert to challenge the prosecution’s case that his voice was on the wiretapped calls, the trial court abused its discretion. (Washington v Texas, 388 US 14; Ake v Oklahoma, 470 US 68; People v Hatterson, 63 AD2d 736; People v Drumgoole, 234 AD2d 888; People v Tyson, 209 AD2d 354; People v Jeter, 80 NY2d 818; People v Cronin, 60 NY2d 430; People v Williams, 160 AD2d 754.) V Appellant’s sentence violated his due process, jury trial, and proportionate punishment rights, and otherwise constituted an abuse of discretion as a matter of law. (People v Naranjo, 89 NY2d 1047; United States v Quintieri, 306 F3d 1217; People v Pena, 50 NY2d 400; People v Jones, 39 NY2d 694; People v Slobodan, 67 AD2d 630; People v Williams, 46 AD2d 783; People v Schonfeld, 68 AD3d 449; People v Rodwin, 283 AD2d 242; People v Maryea, 157 AD2d 605; People v LaSalle, 95 NY2d 827.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Martin J. Foncello, Susan Axelrod and Alan Gadlin of counsel), for respondent.
    I. The verdict sheet submitted by the trial court was proper. (Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539; Lawrence Constr. Corp. v State of New York, 293 NY 634; People v Mitchell, 77 NY2d 624; Rangolan v County of Nassau, 96 NY2d 42; People v Hemmings, 2 NY3d 1; People v Olivo, 52 NY2d 309; People v Alamo, 34 NY2d 453; People v Fuentes, 52 AD3d 1297; People v Cepeda, 29 AD3d 491; People v Yakubova, 11 AD3d 644.) II. Trial counsel was not ineffective for failing to object to the introduction of testimony about the use of a global positioning system (GPS) to locate defendant’s car, and the court correctly denied his motion to set aside the verdict due to the introduction of evidence from the GPS. (People v Weaver, 12 NY3d 433; People v Jones, 55 NY2d 771; People v Satterfield, 66 NY2d 796; People v Brown, 45 NY2d 852; People v Love, 57 NY2d 998; Strickland v Washington, 466 US 668; People v Taylor, 1 NY3d 174; People v Benevento, 91 NY2d 708; People v Henry, 95 NY2d 563; People v Caban, 5 NY3d 143.) III. The First Department properly evaluated the weight of the evidence supporting defendant’s convictions of five counts of grand larceny. (People v Johnson, 10 NY3d 875; People v Danielson, 9 NY3d 342; People v Bleakley, 69 NY2d 490; People v Noble, 86 NY2d 814; People v Norman, 85 NY2d 609; People v Olivo, 52 NY2d 309; People v Alamo, 34 NY2d 453; People v Carpenito, 80 NY2d 65; People v Foster, 73 NY2d 596.) IV The trial court properly denied defendant’s request for appointment of a voice analysis expert. (People v Angelo, 88 NY2d 217; Ake v Oklahoma, 470 US 68; Caldwell v Mississippi, 472 US 320; People v Wilkerson, 94 AD3d 423; People v Burgess, 270 AD2d 158; People v Herrnkind, 49 AD3d 555; People v Carpenter, 240 AD2d 863; People v Brown, 67 AD3d 1369; People v Brand, 13 AD3d 820; People v Walker, 83 NY2d 455; People v Ventura, 35 NY2d 654.) V Defendant can identify no legal error concerning his sentence, which was proper. (People v Thompson, 60 NY2d 513; People v Jones, 39 NY2d 694; People v Naranjo, 89 NY2d 1047; People v Moore, 61 NY2d 575; People v Walker, 83 NY2d 455; People v Pena, 50 NY2d 400; People v Nieves, 2 NY3d 310; Ewing v California, 538 US 11.)
   OPINION OF THE COURT

Pigott, J.

The issues on this appeal are whether the trial court ran afoul of CPL 310.20 (2) when it submitted to the jury a verdict sheet containing the locations of the designated offenses, and whether law enforcement’s warrantless installation of a global positioning system (GPS) tracking device on defendant’s vehicle violated our holding in People v Weaver (12 NY3d 433 [2009]) and the holding of the United States Supreme Court in United States v Jones (565 US —, 132 S Ct 945 [2012]).

I

Defendant and two codefendants engaged in a sophisticated scheme to steal property through the use of forged credit cards. They first acquired credit card numbers from legitimate accounts of cardholders who lived in other states. Then, with the aid of a “reader/writer” machine — a device that reads and writes the magnetic strips on credit cards — they placed the stolen information on the strips of blank cards that had been fabricated to look like genuine credit cards bearing the conspirators’ names or aliases. With forged cards in hand, defendant and his codefendants made purchases at several stores in Manhattan.

In January 2007, investigators from the New York County District Attorney’s Office obtained an eavesdropping warrant allowing them to wiretap two of defendant’s cell phones. Via the wiretaps, investigators heard defendant discussing his purchase of the reader/writer machine and his attempts to purchase blank plastic cards for use in creating fake credit cards. Investigators also conducted visual surveillance of defendant, but they found that to be difficult because of Manhattan’s traffic congestion. As a result, investigators, without first securing a warrant, placed a battery-operated GPS device on defendant’s vehicle. Between March 5 and March 16, 2007, defendant and his codefendants visited various stores and utilized forged credit cards to either purchase or attempt to purchase items with the illegally obtained credit card numbers belonging to individuals from out of state, that had been issued by, among other institutions, HSBC, MasterCard, and Chase Bank. Investigators interviewed store employees and recovered store receipts and surveillance video relative to the transactions.

In May 2007, a grand jury handed down a 61-count indictment against defendant and his codefendants charging them with grand larceny, criminal possession of a forged instrument, criminal possession of stolen property, criminal possession of forgery devices, identity theft and scheme to defraud. In February 2009, approximately one month before trial, the prosecutor provided the defense with copies of the surveillance reports, which disclosed, for the first time, that a GPS tracking device had been placed on defendant’s vehicle.

In March 2009, the case proceeded to trial on 26 of the counts. The People presented evidence concerning the myriad of transactions that had taken place during the period in question. The testimony on the People’s case-in-chief addressed multiple transactions in numerous stores on different dates involving the use of different credit card numbers, which had been issued by assorted banking institutions and obtained from various individuals throughout the United States.

Prior to summations, the trial court, concerned that the jury would have difficulty distinguishing among the submitted counts, prepared a verdict sheet that listed the count number, the offense charged, the date of the alleged offense, and either the name of the store where the alleged offense occurred or the name of the bank that issued the credit card. Defense counsel objected to the annotations on the verdict sheet to the extent it mentioned locations, amounts and dates. The court explained that it prepared the verdict sheet in conformance with the Criminal Procedure Law, and stated that it would instruct the jury that the notations served the sole purpose of distinguishing one count from another.

In its charge to the jury, the court instructed that the sheet had been formulated for the jury’s “guidance” and that “there are some notations [on the sheet] whose only purpose is to remind you of the difference between each of the counts.” The jury found defendant guilty on 20 of the 26 counts, namely, two counts of grand larceny in the third degree, three counts of grand larceny in the fourth degree, eight counts of criminal possession of a forged instrument in the second degree, five counts of identity theft in the first degree, and one count each of scheme to defraud in the first degree and criminal possession of forgery devices.

Defendant made a posttrial CPL 330.30 motion asserting, among other things, that the trial court erred in permitting evidence concerning the GPS device placed on defendant’s car, relying on this Court’s decision in Weaver, which had been pending during his trial and was handed down after the jury’s verdict. The court summarily denied that motion at sentencing, and defendant was sentenced to 973 to 28 years’ imprisonment.

The Appellate Division unanimously affirmed, holding that the investigators’ “limited use” of the GPS device was permissible under our holding in People v Weaver and, to the extent it violated state or federal constitutional law, any error was harmless (102 AD3d 505, 505-506 [1st Dept 2013]). It also concluded that because the stores listed on the verdict sheet were “proxies” for the “complainants,” the annotations did not run afoul of CPL 310.20 (2) (id. at 508). A Judge of this Court granted defendant leave to appeal (20 NY3d 1101 [2013]), and we now affirm.

II

In People v Miller (18 NY3d 704 [2012]), we held that a trial court commits reversible error by providing a jury in a criminal trial with a verdict sheet containing annotations that are not authorized by CPL 310.20 (2) (id. at 706). That section provides:

“Upon retiring to deliberate, the jurors may take with them: . . .
“2. A written list prepared by the court containing the offenses submitted to the jury by the court in its charge and the possible verdicts thereon. Whenever the court submits two or more counts charging offenses set forth in the same article of the law, the court may set forth the dates, names of complainants or specific statutory language, without defining the terms, by which the counts may be distinguished; provided, however, that the court shall instruct the jury in its charge that the sole purpose of the notations is to distinguish between the counts” (emphasis supplied).

Subdivision (2) had originally included only the first sentence, and was amended in 1996 to grant trial courts the authority to include annotations concerning “the dates, names of complainants or specific statutory language” to “facilitate an orderly and intelligent deliberative process and prevent needless reversals of convictions” (Governor’s Approval Mem, Bill Jacket, L 1996, ch 630 at 9, 1996 NY Legis Ann at 453).

Defendant, relying on Miller, claims that the trial court committed reversible error by submitting the annotated verdict sheet to the jury, and challenges 15 out of the 20 counts of which defendant was convicted. According to defendant’s reading, because the verdict sheet contained references to the locations of the offenses and names of the issuing banks (as opposed to the names of the individuals whose card numbers had been stolen), he is entitled to a new trial because that information does not fall within the categories specified in section 310.20 (2). We disagree.

As we explained in Miller "[n]othing of substance can be included [on a verdict sheet] that the statute does not authorize” (Miller, 18 NY3d at 706 [emphasis supplied]). The verdict sheet in Miller violated section 310.20 (2) because it included a legal instruction relative to burden of proof, i.e., words or terms “of substance” (id. at 706-707 [verdict sheet asked the jury if the defendant had established by a preponderance of the evidence that he acted under extreme emotional disturbance]). Verdict sheets may not be utilized to provide legal instruction to a deliberating jury; such instruction is to be provided by the trial court in its jury charge (see CPL 310.30 [stating that during deliberations “the jury may request the court for further instruction or information with respect to the law” and the court, upon notice to and in the presence of the People and the defense, “must give such requested information or instruction as the court deems proper”]). Inclusion of legal instructions on a verdict sheet runs contrary to the statute’s intended purpose of "facilitat[ing] an orderly and intelligent deliberative process” because it enhances the risk that the jurors will perceive the annotation as having special significance as opposed to merely assisting them in distinguishing among the counts.

The annotations here could not have been interpreted by the jury as being intended for any purpose other than identifying the individual stores defendant and his codefendants were alleged to have frequented or the banks relative to certain identity theft counts. Given the number of counts, coupled with the fact that the offenses occurred at different locations at different times (and, in some instances, on different dates), the trial court appropriately included the annotations so that the jury could distinguish the submitted counts. Under the circumstances, the names of the stores clearly fall within the term “complainant” delineated in the statute. Affording section 310.20 (2) the narrow interpretation defendant advocates would unnecessarily restrict trial courts from providing clarification on a verdict sheet in cases like this one where there are multiple counts of identical offenses alleging similar conduct over a period of time. The danger against which the statute guards — that the jurors will "tak[e] on the role as Judges of the law” (People v Moore, 71 NY2d 684, 688 [1988]) — is not presented here.

III

Contrary to the People’s contention, defendant’s objection to the warrantless installation of the GPS tracking device was adequately preserved at trial. Prior to trial, the People disclosed surveillance reports that, for the first time, indicated that investigators had attached the GPS device to defendant’s car and used it to track defendant on a number of occasions. Defendant apprised the court, through counsel, that upon reviewing the surveillance reports he discovered that the investigators had attached a GPS device to his car, and asked if the court would consider a motion concerning its use. The court, believing that the request was one to suppress the GPS technology relative to the eavesdropping warrant, stated that it was “likely” that the court had issued a ruling already. Defendant told the court that it had not issued a ruling relative to the GPS device, and the court responded that it was “possible” that defendant was correct. Defendant was, in fact, correct that the court had not made a ruling concerning the use of the GPS device, and twice asserted as such, but the court refused to consider defendant’s argument.

In any event, prior to summations, defendant, referring to People v Weaver, asked the court if it was “aware of the Court of Appeals case currently pending with respect to the usability of tracking devices.” Although the court responded that it was aware of that case, when counsel attempted to make a motion with regard to that issue (see CPL 710.60 [5]), the court interrupted him and summoned the jury. The record thus indicates that the court was on notice of defendant’s argument under Weaver and tacitly denied it. The Appellate Division found the objection sufficiently preserved to reach the merits; however, it erroneously concluded that law enforcement’s “very limited GPS surveillance . . . was permissible” under our holding in Weaver (102 AD3d at 505-506).

Under Weaver and the United States Supreme Court’s subsequent holding in United States v Jones, the use of a GPS device to monitor a vehicle’s movements constitutes a search under our State and Federal Constitutions (see Weaver, 12 NY3d at 445-447; see also United States v Jones, 565 US at —, 132 S Ct at 949). The Appellate Division sought to distinguish Weaver by pointing out that the device was attached to the car for only three weeks (and functional for only two), and that investigators accessed the GPS device on only two days. We do not need to consider whether these facts suffice to distinguish Weaver, because under the Supreme Court’s holding in Jones the attachment of the GPS device to defendant’s vehicle was unquestionably a search within the meaning of the Fourth Amendment. Although Jones and Weaver had not yet been decided at the time of defendant’s trial, “cases on direct appeal are generally decided in accordance with the law as it exists at the time the appellate decision is made” (People v Jean-Baptiste, 11 NY3d 539, 542 [2008] [citation omitted]). When the police want to place a GPS device on a suspect’s automobile, they must obtain a warrant first.

We conclude, however, that this violation of defendant’s constitutional right was harmless beyond a reasonable doubt because “there is no reasonable possibility that the error might have contributed to defendant’s conviction” (People v Crimmins, 36 NY2d 230, 237 [1975], citing Chapman v California, 386 US 18 [1967], reh denied 386 US 987 [1967], and Fahy v Connecticut, 375 US 85 [1963]). There was one date on which the use of the GPS device allegedly led to evidence of defendant’s criminal activity. Although the GPS device was attached to the car on that date, investigators learned from another source — wiretapped phone calls obtained through an eavesdropping warrant — that defendants were heading toward a Best Buy store at 86th Street and Lexington Avenue in Manhattan. Once investigators located defendant and his cohorts at this store, they conducted visual surveillance as defendant and/or his codefendants made purchases at a jewelry store and another Best Buy at 44th Street and 5th Avenue, which was near the jewelry store. Given the information investigators obtained from the wiretap, the use of the GPS device, although amounting to a constitutional violation, was nonetheless harmless because it provided information redundant to that which investigators had already obtained legally. The People also presented overwhelming evidence of defendant’s guilt in the form of surveillance video, sales receipts, visual observations by investigators of codefendants making purchases at the named stores, interviews of store employees conducted by investigators, and recorded conversations obtained via the eavesdropping warrant.

Finally, we have considered defendant’s remaining arguments and conclude that they are without merit.

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

Graffeo, J.

(concurring). The majority believes that defendant adequately preserved a constitutional challenge to the evidence obtained from the global positioning system (GPS) tracking device. Not only do I disagree with that holding, but defendant does as well — he asserts that his trial attorney inexcusably failed to seek suppression. Consequently, I would analyze the GPS issue in the context of an ineffective assistance of counsel framework. Before trial, the People provided the defense with documents revealing that a GPS device had been attached to defendant’s automobile and was used to track his location at specified times and locations. Once alerted to these facts, defendant urged his attorney to inquire if the court would “entertain” a pretrial motion to suppress the GPS evidence. When defense counsel posed the issue, the court responded that it believed it had already ruled on the request, but that it would consider the application if “something specific” was raised and the issue would be reviewed “at that time.” Defense counsel, however, did not pursue or file a motion. At the subsequent trial, the People presented the GPS evidence.

Before summations, defendant asked the court if it was aware of a GPS case that was pending at our Court, entitled People v Weaver (52 AD3d 138 [3d Dept 2008], lv granted 10 NY3d 966 [2008]). The judge indicated that he knew of the case but did not engage in further discussion. Approximately two weeks after the verdict in defendant’s case, but prior to his sentencing, we issued the decision in People v Weaver (12 NY3d 433 [2009]). Defense counsel then moved to set aside defendant’s conviction under CPL 330.30, claiming that the People should not have been allowed to use evidence derived from the GPS unit because it had not been authorized by a search warrant. Supreme Court denied the motion.

On these facts, the GPS issue clearly was not adequately preserved (see CPL 470.05 [2]). Except under unusual circumstances not present in this case, a motion to suppress evidence must be made before trial (see CPL 710.40) and is to be submitted in writing (see CPL 710.60 [1]). Because the suppression motion was not timely or properly presented to the trial court, it cannot be faulted for refusing to consider the issue. Defendant’s counsel did not comply with the court’s request for a pretrial motion and the issue was not raised again until after the GPS evidence had been offered into evidence (see CPL 710.40 [2], [4]). Neither defendant’s oral application made immediately prior to summations nor his postverdict CPL 330.30 motion could be used to belatedly raise this issue (see e.g. People v Hines, 97 NY2d 56, 61-62 [2001]; cf. majority op at 188).

Recognizing the untimeliness of the suppression request, defendant now asks us to determine that his trial attorney was ineffective for failing to properly submit his suppression challenge to the GPS evidence. Although the record in this case supports the procedural course charted by defendant on this appeal, I do not believe that defendant has satisfied his burden of establishing that counsel’s performance was objectively unreasonable (see generally People v Brown, 17 NY3d 742, 744 [2011]; People v Baker, 14 NY3d 266, 270-271 [2010]). At the time the suppression motion should have been made, the trial court would have been bound by the Third Department’s ruling in Weaver, which held that the use of a GPS device by law enforcement was not subject to a warrant requirement (see 52 AD3d at 142-143). We did not overturn that determination until after the jury in this case rendered its verdict. Of course, the fact that the GPS issue had not yet been definitively resolved as a matter of New York or federal law may weigh in defendant’s favor — the lack of a suppression motion impeded his ability to raise the issue on appeal even though he would have been entitled to rely on any advantageous decisions that occurred while his direct appeal unfolded (compare People v Nesbitt, 20 NY3d 1080, 1082 [2013], with People v Feliciano, 17 NY3d 14, 28 [2011]).

Ultimately, however, defendant’s ineffectiveness argument falls because he has not demonstrated that trial counsel’s inaction prejudiced him or deprived him of meaningful representation in the context of the entire case (see generally People v Heidgen, 22 NY3d 259, 278-279 [2013]). As the majority correctly observes, the GPS evidence was quite limited in terms of factual disclosures and otherwise similar to proof that had been legally obtained. For example, aside from the GPS evidence, defendant’s guilt was overwhelmingly established by surveillance videos, extensive visual observations by investigators, numerous recorded telephone conversations, statements from store employees and the discovery in a codefendant’s residence of a machine that created counterfeit credit cards. Therefore, trial counsel’s failure to properly seek suppression of the GPS evidence did not deprive defendant of meaningful legal assistance. For these reasons, I would affirm the order of the Appellate Division.

Chief Judge Lippman and Judges Smith and Rivera concur; Judge Graffeo concurs in an opinion in which Judges Read and Abdus-Salaam concur.

Order affirmed.

      . Having reached this conclusion, we need not address defendant’s contention that he was deprived of the effective assistance of counsel for not challenging the admission of the GPS-derived evidence.

      . It is undisputed that the eavesdropping warrants to which the court was referring dealt with GPS information obtained from defendant’s cell phones.

      . On June 5, 2008, the Appellate Division, Third Department, upheld the warrantless use of a GPS device (52 AD3d 138 [3d Dept 2008]). Defendant was granted leave to appeal to this Court on July 22, 2008 (10 NY3d 966 [2008]) and we reversed the order of the Appellate Division on May 12, 2009 (12 NY3d 433 [2009]).

      . Citing CPL 710.60 (5), the majority evidently believes that the presummation oral application timely presented the GPS issue. This position is inconsistent with the relevant provisions of article 710 of the Criminal Procedure Law. In general, a motion to suppress must be served or filed within 45 days after arraignment unless the court specifies a different time frame (see CPL 710.40 [1], citing CPL 255.20 [1]). A motion to suppress at a later point in a criminal proceeding — “during trial” (CPL 710.60 [5]), for example — is permitted “when, owing to unawareness of facts constituting the basis thereof or to other factors, the defendant did not have reasonable opportunity to make the motion previously” (CPL 710.40 [2]). This exception is inapplicable since the defense was clearly alerted to raise this issue in an appropriate suppression motion. Section 710.60 (5), therefore, has no bearing on this case and the fact that “[t]he Appellate Division found the objection sufficiently preserved” (majority op at 188) is not determinative (see People v Davidson, 98 NY2d 738, 739-740 [2002]).

      . See also Matter of Cunningham v New York State Dept. of Labor (21 NY3d 515, 520 [2013]); United States v Jones (565 US —, 132 S Ct 945 [2012]).

      . I agree with the majority that the verdict sheet did not violate CPL 310.20 (2) and that defendant’s other contentions are meritless.