author: Graffeo, J.

text:
    [998 NE2d 1045, 976 NYS2d 421]
    Jose A. Soto, Appellant, v J. Crew Inc. et al., Respondents.
    Argued September 11, 2013;
    decided October 10, 2013

      POINTS OF COUNSEL

      Profeta & Eisenstein, New York City (Fred R. Profeta, Jr., of counsel), for appellant.
    I. The Appellate Division erred in concluding that this Court’s decision in Dahar v Holland Ladder & Mfg. Co. (18 NY3d 521 [2012]) precluded Labor Law § 240 (1) coverage of “routine maintenance” cleaning. (Broggy v Rockefeller Group, Inc., 8 NY3d 675; Buendia v New York Natl. Bank, 223 AD2d 456, 91 NY2d 812; Diaz v Applied Digital Data Sys., 300 AD2d 533; Swiderska v New York Univ., 10 NY3d 792; Cruz v Bridge Harbor Hgts. Assoc., 249 AD2d 44; Retamal v Osborne Mem. Home Assn., 256 AD2d 506; Fox v Brozman-Archer Realty Servs., 266 AD2d 97; Bauer v Female Academy of Sacred Heart, 97 NY2d 445; Ojeda v Peak Janitorial Servs., 270 AD2d 322; Aviles v Crystal Mgt., 233 AD2d 129.) II. If the Appellate Division disqualified plaintiff from coverage because he was not cleaning windows, then the Court misread the holding in Dahar v Holland Ladder & Mfg. Co. (18 NY3d 521 [2012]). (Gordon v Eastern Ry. Supply, 82 NY2d 555; Robinson Motor Xpress, Inc. v HSBC Bank, USA, 37 AD3d 117; Vasey v Pyramid Co. of Buffalo, 258 AD2d 906; Kapovic v 450 Lexington Venture, 280 AD2d 321; Roldan v Molyneux, 227 AD2d 240; Chapman v International Bus. Machs. Corp., 253 AD2d 123; Cabri v ICOS Corp. of Am., 240 AD2d 456; Ekere v Airmont Indus. Park, 249 AD2d 104; Parraguirre v 27th St. Holding, LLC, 71 AD3d 594; Vernum v Zilka, 241 AD2d 885.) III. This Court’s decision in Dahar v Holland Ladder & Mfg. Co. (18 NY3d 521 [2012]) has created confusion in the Appellate Division, and the instant case should be utilized as a vehicle to eliminate that confusion. (Grant v Steve Mark, Inc., 96 AD3d 614.)

      Mauro Lilling Naparty LLP, Woodbury (Anthony F. DeStefano and Caryn L. Lilling of counsel), for respondents.
    I. Routine custodial maintenance is not a type of “cleaning” protected by the “scaffold” law. (Grant v Steve Mark, Inc., 96 AD3d 614; Dahar v Holland Ladder & Mfg. Co., 18 NY3d 521; Broggy v Rockefeller Group, Inc., 8 NY3d 675; Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878; Gordon v Eastern Ry. Supply, 82 NY2d 555; Swiderska v New York Univ., 10 NY3d 792; Runner v New York Stock Exch., Inc., 13 NY3d 599; Narducci v Manhasset Bay Assoc., 96 NY2d 259; Smith v Shell Oil Co., 85 NY2d 1000; Izrailev v Ficarra Furniture of Long Is., 70 NY2d 813.) II. This Court did not wholesale overrule Broggy v Rockefeller Group, Inc. (8 NY3d 675 [2007]) but merely reminded litigants that its holding is limited to commercial window cleaning. (Brown v Christopher St. Owners Corp., 87 NY2d 938; Dahar v Holland Ladder & Mfg. Co., 18 NY3d 521.)
   OPINION OF THE COURT

Graffeo, J.

Plaintiff, an employee of a commercial cleaning company hired to provide janitorial services for a retail store, was injured when he fell from a four-foot-tall ladder while dusting a six-foot-high display shelf. He brought a Labor Law § 240 (1) action against J. Crew, the retail store, and The Mercer I L.L.C., the building owner. Both lower courts held that defendants were entitled to summary judgment because the activity plaintiff was engaged in at the time of his fall was not the type of “cleaning” covered by Labor Law § 240 (1). Because we agree, we now affirm.

Defendant J. Crew hired Whelan Cleaning Services to provide custodial services at a retail store located in Lower Manhattan. Whelan assigned plaintiff Jose Soto responsibility for daily maintenance of the store. Each day, Soto would report for work several hours before the establishment opened to ready the premises for business, vacuuming, mopping, cleaning bathrooms, emptying garbage and the like. After the store opened, and for the remainder of his shift, he did spot cleaning, tidying shelves, dusting, wiping down the entrance door, sweeping up debris and scraping gum from the floor, as necessary.

On the day of the incident, a J. Crew employee noticed that a six-foot-high wooden shelf used to display clothing was dusty and she asked Soto to clean it. Equipped with a “high duster” (a Swiffer duster with a long handle), Soto—who is five feet, 10 inches tall—positioned a four-foot-high A-frame ladder on the floor in front of the shelf. It is undisputed that the ladder was in proper working order and that Soto locked it in the open position prior to climbing the steps. As he was dusting the shelf, however, both Soto and the ladder fell over, allegedly causing Soto to injure his back, knee and elbow.

Soto commenced this personal injury action against J. Crew and the building owner seeking recovery under Labor Law § 240 (1), among other theories. After discovery, defendants moved for summary judgment, asserting that Soto’s cleaning activities constituted “routine maintenance” and not the type of cleaning protected by the statute. They further contended that, even if Soto had been engaged in a covered activity, he failed to establish that he was necessarily exposed to an elevation-related risk or that the ladder was defective or inappropriate to the assigned task. Alternatively, defendants noted that Soto was an insulin-dependent diabetic with other health conditions that might have contributed to the fall and that further discovery was warranted to ascertain the extent to which the fall could be attributed to his medical conditions.

Soto opposed the motions and cross-moved for partial summary judgment on liability on the Labor Law § 240 (1) claim. He argued that the statute applied because he was engaged in “cleaning” and was required to dust a shelf at an elevated level, contending that all commercial cleaning is covered by the statute. He also submitted the affidavit of an engineer who opined that Soto was not provided with proper protection for his elevated work because the ladder was not secured in some manner, such as being held by another store employee.

Supreme Court denied Soto’s cross motion and granted summary judgment to defendants dismissing the Labor Law § 240 (1) claim, reasoning that the statute does not apply to workers employed on a daily basis to conduct routine commercial cleaning, such as the dusting, sweeping, mopping and general tidying at issue here (2011 NY Slip Op 32518[U] [2011]). The Appellate Division unanimously affirmed in two separate writings (95 AD3d 721 [1st Dept 2012]). In a memorandum, the majority held that “[t]he dusting of the shelf constituted routine maintenance and was not the type of activity that is protected under the statute” (id. at 721). The concurrence agreed that dismissal of the claim was required on constraint of this Court’s then-recent decision in Dahar v Holland Ladder & Mfg. Co. (18 NY3d 521 [2012]), which denied recovery to a manufacturing-plant employee injured while cleaning a large wall module at the conclusion of the manufacturing process. The Appellate Division granted Soto leave to appeal to this Court (2012 NY Slip Op 85967[U] [2012]).

Labor Law § 240 (1) imposes a nondelegable duty and absolute liability upon owners and contractors for failing to provide safety devices necessary for workers subjected to elevation-related risks in circumstances specified by the statute (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). To recover, the plaintiff must have been engaged in a covered activity—“the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” (Labor Law § 240 [1]; see Panek v County of Albany, 99 NY2d 452, 457 [2003])—and must have suffered an injury as “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). The threshold issue presented in this appeal concerns the first question—whether Soto was engaged in “cleaning” within the meaning of the statute.

Prior to our 2007 decision in Broggy v Rockefeller Group, Inc. (8 NY3d 675 [2007]), there were several appellate decisions holding that cleaning activities were covered under the statute only if they were performed in connection with building construction, demolition, repair work or comparable activities that made a significant physical change to the premises. This conclusion was understandable given that the primary legislative concern underlying Labor Law § 240 (1) was the protection of construction workers who often face significant elevation-related dangers on a work site, even when engaged in a task that would not be particularly hazardous if performed in a different context. We nonetheless rejected that view in Broggy, noting that “cleaning” is separately listed as a covered activity and had been “expressly afforded protection under section 240 (1) whether or not incidental to any other enumerated activity” (id. at 680). There, plaintiff had been tasked with cleaning the 9- or 10-foot-tall interior windows of a commercial building. Noting that we had previously held that cleaning the exterior of the windows of a commercial or public building is a covered activity (see Bauer v Female Academy of Sacred Heart, 97 NY2d 445 [2002]), we saw no basis to distinguish the cleaning of interior windows for Labor Law § 240 (1) purposes. Viewing the statute in the context of the larger legislative scheme, it would have been anomalous for the legislature to categorically exclude commercial window washers given the elevation-related risks they typically encounter and the special protection they have long enjoyed under the Labor Law (see Labor Law § 202 [imposing a duty to “provide . . . safe means for the cleaning of the windows and of exterior surfaces” of public buildings]).

We went on to hold in Broggy that the complaint had properly been dismissed because plaintiff failed to surmount the second Labor Law § 240 (1) hurdle that required proof in admissible form that the task he had been assigned necessarily created “an elevation-related risk of the kind that the safety devices listed in section 240 (1) protect against” (id. at 681). Although plaintiff had fallen from a desk that he stood on while engaged in the assigned job, there was no indication in the record that the tools he had been supplied (a squeegee and a wand) were not long enough to permit him to wash the windows while standing on the floor. He therefore failed to establish that it was necessary for him to work at an elevated level to complete the task.

In Swiderska v New York Univ. (10 NY3d 792 [2008]), another window washing case, we applied the analysis in Broggy to determine that a plaintiff injured when she fell off a bed that she had climbed on to clean the interior windows of a dormitory as part of a commercial cleaning project was engaged in an activity covered by Labor Law § 240 (1). In contrast to Broggy, there plaintiff had been equipped with only cleaning solution and a rag to clean 10-foot-high windows, “which required her to climb upon pieces of furniture in order to complete her work— creating an elevation-related risk—and she was not provided a ladder, scaffold or other safety device” (Swiderska, 10 NY3d at 793).

These commercial window washing cases formed the backdrop for our decision in Dahar (18 NY3d 521) where a manufacturing plant employee was injured when he fell from a ladder while cleaning oil and welding residue from a custom fabricated wall module at the completion of the manufacturing process. Defendants in that case argued, among other defenses, that this type of cleaning was not covered by Labor Law § 240 (1). We agreed, emphasizing that the statute had never been extended so far and that inclusion of this activity within its scope would greatly expand its reach. In dicta, we commented that, if given the broad reading urged by plaintiff, the statute would encompass virtually every kind of cleaning task, including every bookstore employee who climbs a ladder to dust off a bookshelf or every maintenance worker who climbs to a height to clean a light fixture—results never intended by the legislature.

This case presents a scenario analogous to the bookstore example cited in Dakar and, consistent with our analysis in that case, we conclude that plaintiff was not engaged in a covered activity. Although commercial window washing constitutes “cleaning” within the ambit of Labor Law § 240 (1) for the reasons explained above, we have nonetheless clarified that “routine, household window washing” does not (see Brown v Christopher St. Owners Corp., 87 NY2d 938, 939 [1996]; Connors v Boorstein, 4 NY2d 172 [1958]). Routine maintenance of that type has been deemed excluded from the statute in recognition of the fact that such a task generally does not involve the type of heightened elevation-related risks that justify extension of the provision’s special protection.

To be sure, the term “cleaning” is not confined merely to commercial window washing—our courts have reasonably applied Labor Law § 240 (1) to other types of cleaning projects that present hazards comparable in kind and degree to those presented on a construction site (see e.g. Vasey v Pyramid Co. of Buffalo, 258 AD2d 906 [4th Dept 1999] [cleaning of 35- and 40-foot-high miniledges and bulkheads in Galleria Mall as part of large-scale cleaning project was a covered activity]; Fox v Brozman-Archer Realty Servs., 266 AD2d 97 [1st Dept 1999] [power washing of plexiglass canopy of building in furtherance of contract to clean exterior of entire structure was a covered activity]; see generally Gordon v Eastern Ry. Supply, 82 NY2d 555 [1993] [use of sandblaster to clean exterior of railroad car]). But we reject plaintiffs argument that the legislature intended to cover all cleaning that occurs in a commercial setting, no matter how mundane.

Outside the sphere of commercial window washing (which we have already determined to be covered), an activity cannot be characterized as “cleaning” under the statute, if the task: (1) is routine, in the sense that it is the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law § 240 (1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project. Whether the activity is “cleaning” is an issue for the court to decide after reviewing all of the factors. The presence or absence of any one is not necessarily dispositive if, viewed in totality, the remaining considerations militate in favor of placing the task in one category or the other.

Applying these factors here, the activity undertaken by Soto was not “cleaning” within the meaning of Labor Law § 240 (1). The dusting of a six-foot-high display shelf is the type of routine maintenance that occurs frequently in a retail store. It did not require specialized equipment or knowledge and could be accomplished by a single custodial worker using tools commonly found in a domestic setting. Further, the elevation-related risks involved were comparable to those encountered by homeowners during ordinary household cleaning and the task was unrelated to a construction, renovation, painting, alteration or repair project. Because plaintiff was not engaged in an activity that fell within the purview of Labor Law § 240 (1), we need not address whether he offered sufficient evidence that he was injured as a consequence of “a failure to provide adequate protection against a risk arising from a physically significant elevation differential” under our analysis in Runner. Defendants were therefore entitled to summary judgment dismissing the Labor Law § 240 (1) claim, as both lower courts concluded.

Accordingly, the order of the Appellate Division should be affirmed, with costs. The certified question should not be answered upon the ground that it is unnecessary.

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

Order affirmed, with costs, and certified question not answered upon the ground that it is unnecessary.


source: Caselaw Access Project

author: Chief Judge Lippman.

license: Public Domain

text:
    [999 NE2d 510, 977 NYS2d 147]
    Brightonian Nursing Home et al., Respondents, v Richard F. Daines, M.D., Commissioner of Health, State of New York, et al., Appellants.
    Argued September 11, 2013;
    decided October 15, 2013

      POINTS OF COUNSEL

      Eric T. Schneiderman, Attorney General, Albany (Victor Paladino, Barbara D. Underwood and Andrew D. Bing of counsel), for appellants.
    I. Plaintiffs’ challenge is a facial one and they failed to satisfy the stringent requirements for a facial challenge. (Matter of Moran Towing Corp. v Urbach, 99 NY2d 443.) II. Public Health Law § 2808 (5) (c) is a constitutional delegation of authority to the Commissioner of Health and is not void for vagueness. (Boreali v Axelrod, 71 NY2d 1; Matter of Levine v Whalen, 39 NY2d 510; Matter of Big Apple Food Vendors’ Assn. v Street Vendor Review Panel, 90 NY2d 402; LaValle v Hayden, 98 NY2d 155; Miranda v Norstar Bldg. Corp., 79 AD3d 42; Matter of Manhattan Pizza Hut v New York State Human Rights Appeal Bd., 51 NY2d 506; People v Illardo, 48 NY2d 408; Circuit City Stores, Inc. v Adams, 532 US 105; Federal Maritime Comm’n v Seatrain Lines, Inc., 411 US 726; Matter of Kaur v New York State Urban Dev. Corp., 15 NY3d 235.) III. The statute does not deprive plaintiffs of substantive due process. (Rochester Gas & Elec. Corp. v Public Serv. Commn. of State of N.Y., 71 NY2d 313; Bower Assoc. v Town of Pleasant Val., 2 NY3d 617; Matter of Raynor v Landmark Chrysler, 18 NY3d 48; Ferran v Town of Nassau, 471 F3d 363; Concrete Pipe & Products of Cal., Inc. v Construction Laborers Pension Trust for Southern Cal., 508 US 602; Usery v Turner Elkhorn Mining Co., 428 US 1; Montgomery v Daniels, 38 NY2d 41; Pharmaceutical Mfrs. Assn. v Whalen, 54 NY2d 486; Louisville Gas & Elec. Co. v Coleman, 277 US 32.)

      Harter Secrest & Emery LLP, Rochester (Thomas G. Smith, F. Paul Greene and John P. Bringewatt of counsel), for respondents.
    I. Public Health Law § 2808 (5) (c) violates substantive due process. (Fenster v Leary, 20 NY2d 309; People v Bunis, 9 NY2d 1; Gannett Co. v City of Rochester, 69 Misc 2d 619; People v New York Carbonic Acid Gas Co., 196 NY 421; People v Faxlanger, 1 AD2d 92; Brandeis School v Village of Lawrence, 18 Misc 2d 550; Matter of Wulfsohn v Burden, 241 NY 288; Buffalo Teachers Fedn. v Tobe, 464 F3d 362; Dickman v Commissioner, 465 US 330; Dolan v City of Tigard, 512 US 374.) II. Public Health Law § 2808 (5) (c) is an improper delegation of legislative authority. (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854; Matter of Levine v Whalen, 39 NY2d 510; City of Tonawanda v Tonawanda Theater Corp., 29 AD2d 217; Matter of City of Utica v Water Pollution Control Bd., 5 NY2d 164; Packer Coll. Inst. v University of State of N.Y., 298 NY 184; Boreali v Axelrod, 71 NY2d 1; Matter of Koelbl v Whalen, 63 AD2d 408; Matter of Timber Point Homes v County of Suffolk, 155 AD2d 671; Long Is. Coll. Hosp. v Whalen, 68 AD2d 274; Miranda v Norstar Bldg. Corp., 79 AD3d 42.) III. Public Health Law § 2808 (5) (c) is void for vagueness. (Grayned v City of Rockford, 408 US 104; Connally v General Constr. Co., 269 US 385; Kolender v Lawson, 461 US 352; National Endowment for Arts v Finley, 524 US 569.) IV. Public Health Law § 2808 (5) (c) provides no procedural due process. (Goss v Lopez, 419 US 565;
      Joint Anti-Fascist Refugee Comm. v McGrath, 341 US 123; Curiale v Ardra Ins. Co., 88 NY2d 268; Matter of Slocum v Berman, 81 AD2d 1014; Matter of Timber Point Homes v County of Suffolk, 155 AD2d 671; Matter of Sunset Nursing Home v De-Buono, 24 AD3d 927.) V. Public Health Law § 2808 (5) (c) is an improper prior restraint of speech and therefore violative of the First Amendment to the United States Constitution. (Buckley v Valeo, 424 US 1.) VI. Public Health Law § 2808 (5) (c) impairs obligations of preexisting contracts. (General Motors Corp. v Romein, 503 US 181; Allied Structural Steel Co. v Spannaus, 438 US 234; United States Trust Co. of N. Y. v New Jersey, 431 US 1; 19th St. Assoc. v State of New York, 79 NY2d 434.) VII. Public Health Law § 2808 (5) (c) violates the Equal Protection Clause. (Bower Assoc. v Town of Pleasant Val., 2 NY3d 617; Cleburne v Cleburne Living Center, Inc., 473 US 432; New York State Assn. of Counties v Axelrod, 78 NY2d 158.) VIII. The “such other factors” clause of Public Health Law § 2808 (5) (c) is not severable. (CWM Chem. Servs., L.L.C. v Roth, 6 NY3d 410; Anonymous v City of Rochester, 13 NY3d 35.) IX. There is no reported case applying New York law that upholds a provision such as Public Health Law § 2808 (5) (c). (Gannett Co. v City of Rochester, 69 Misc 2d 619; City of Tonawanda v Tonawanda Theater Corp., 29 AD2d 217; New York State Assn. of Counties v Axelrod, 78 NY2d 158; Matter of Levine v Whalen, 39 NY2d 510; A. L. A. Schechter Poultry Corp. v United States, 295 US 495.)
   OPINION OF THE COURT

Chief Judge Lippman.

Before us on this appeal as of right pursuant to CPLR 5601 (d) is a challenge to the facial constitutionality of Public Health Law § 2808 (5) (c). That provision, in its present form enacted in 2010 as this case was being litigated in Supreme Court (L 2010, ch 109, part B, § 36), prohibits the withdrawal or transfer of residential health care facility equity or assets in an aggregate amount exceeding three percent of the facility’s most recently reported annual revenue from patient care services, without the prior approval of the State Commissioner of Health:

“The commissioner shall make a determination to approve or disapprove a request for withdrawal of equity or assets under this subdivision within sixty days of the date of the receipt of a written request from the facility ... In reviewing such requests the commissioner shall consider the facility’s overall financial condition, any indications of financial distress, whether the facility is delinquent in any payment owed to the department, whether the facility has been cited for immediate jeopardy or substandard quality of care, and such other factors as the commissioner deems appropriate.”

Nursing homes serve a particularly needy and vulnerable clientele and are largely compensated with public funds. Preserving their financial viability and capacity to provide care and treatment at mandated levels is thus a proper and uncontroversial subject of legislative concern. The particular concern addressed by the presently challenged enactment—that precipitous withdrawals of substantial facility equity or assets for non-facility purposes may impair facility operations and thus occasion detriment to the welfare of an utterly reliant resident population—is not new. Public Health Law § 2808 (5) (c) is only the most recent of several restrictions on the alienation of facility equity and assets contained in Public Health Law § 2808. Subdivision (5) (a), enacted in 1977 (L 1977, ch 521, § 1), requires an operator to obtain permission for the withdrawal of facility assets or equity when the facility is in a negative net worth position or when the withdrawal would give rise to such a position, and, as amended in 1984 to address widespread noncompliance with the pre-approval requirement, contains a clawback provision (L 1984, ch 969, § 6). Subdivision (5) (b), enacted in 2008 (L 2008, ch 58, part C, § 72, as amended by L 2008, ch 57, part OO, § 12) extended the Commissioner’s oversight of facility asset/equity withdrawals to facilities in positive equity positions, by requiring across-the-board prior written notification of any withdrawal or transfer of facility equity or assets exceeding in the aggregate three percent of the facility’s most recently reported annual revenue from patient care services. The presently challenged provision, subdivision (5) (c), constitutes a further extension of the same regulatory agenda, adding a pre-approval requirement for any withdrawal for which notice would be required under subdivision (5) (b). Read in context, subdivision (5) (c) targets facilities that, although already subject to subdivision (5) (b)’s pre-withdrawal written notification requirement, were not previously subject to a pre-withdrawal approval requirement.

In granting plaintiffs summary judgment, declaring section 2808 (5) (c) facially unconstitutional, Supreme Court reasoned that the statute’s use of the catch-all phrase “and such other factors as the commissioner deems appropriate” afforded the Commissioner unbridled discretion to deny withdrawal/transfer applications, and in so doing impermissibly ceded legislative policy-making power to a regulatory agency situated in the executive branch (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 864 [2003]). The court also faulted the statute for infringing the substantive due process property interests of facility owners; subdivision (5) (c), it said, was not rationally related to any end that might be achieved through the State’s police power.

The Appellate Division agreed that the statute’s catch-all provision impermissibly surrendered legislative policy-making power (93 AD3d 1355, 1358 [2012]). And, while noting defendants’ contention that the catch-all, if deemed constitutionally offensive, could be severed without compromising the essential legislative design, the court was of the view that severance was incapable of saving the statute because the enactment as a whole violated substantive due process (93 AD3d at 1359). The court did not question the governmental purpose for the statute—namely, ensuring the financial viability of nursing homes and protecting the welfare of their vulnerable residents—but was unable to discern a reasonable relationship between that purpose and the means prescribed, which it said “swe[pt] so broadly as to be irrational and arbitrary in view of the objective to be accomplished” (id. at 1360). In the court’s view, protecting the financial viability of nursing homes and the welfare of their residents was sufficiently assured by Public Health Law § 2808 (5) (a) and (b).

The lower courts, we believe, erred in concluding that the subject statute was offensive to substantive due process. Economic regulation will violate an individual’s substantive due process property interest only in those situations, vanishingly rare in modern jurisprudence, where there is absolutely no reasonable relationship to be perceived between the regulation and the achievement of a legitimate governmental purpose (Rochester Gas & Elec. Corp. v Public Serv. Commn. of State of N.Y., 71 NY2d 313, 320 [1988]); the regulation, to be actionable, must be arbitrary in the constitutional sense—which is to say “so outrageously arbitrary as to constitute a gross abuse of governmental authority” (Bower Assoc. v Town of Pleasant Val., 2 NY3d 617, 629 [2004] [internal quotation marks and citation omitted]). A judicial weighting of the opposed interests more solicitous of personal property rights (see e.g. Lochner v New York, 198 US 45 [1905]) has long been rejected on the ground that it would stymie the legislature’s exercise of the police power to provide for the common good (see Nebbia v New York, 291 US 502 [1934]).

Plaintiffs do not suggest that the purposes advanced by the State for the challenged enactment are illegitimate. Their contention is rather that the enactment does not reasonably advance those purposes because it targets facilities that are not financially distressed—facilities with positive net worth positions—and imposes an across-the-board “freeze” on assets, using as a touchstone an arbitrary percentage of annual revenue. Plaintiffs urge that annual revenue is not itself a reliable indicator of a facility’s financial health and that there is no reason why the extent of an operator’s unconditioned access to facility assets and equity should depend solely on the facility’s most recent annual revenue stream.

Defendants respond that facilities enjoying positive net worth positions—i.e., where total assets exceed total liabilities (see 10 NYCRR 400.19 [a] [1])—are not immune from instability precipitated by the withdrawal of substantial facility assets; that the liquidity of even those facilities may be rendered insufficient to meet their day-to-day operating expenses thus impairing the satisfaction of institutional care and treatment obligations. While acknowledging that annual revenue is not itself an infallible index of a facility’s financial condition, defendants assert that it is rationally indicative of a facility’s scope of operation and ability to sustain services to its residents at mandated levels and that it may therefore be reasonably used as a basis for determining how much may be withdrawn from a facility without prior approval. As to the three percent threshold, defendants explain that the point at which scrutiny should commence will inevitably be fairly arbitrary since it is only after investigation that any conclusion can be reliably drawn as to whether a withdrawal from a facility in a positive net worth position for non-facility purposes will impair the facility financially or operationally.

We think it apparent that we do not deal here with an outrageously baseless regulatory exercise and it is, in any event, certain that plaintiffs have not met their extraordinary burden in this species of litigation of proving beyond a reasonable doubt that the challenged provision “suffers wholesale constitutional impairment” (Matter of Moran Towing Corp. v Urbach, 99 NY2d 443, 448 [2003]; and see Overstock.com, Inc. v New York State Dept. of Taxation & Fin., 20 NY3d 586, 593-594 [2013]).

Possibly, Public Health Law § 2808 (5) (c) is not as narrowly focused as it might be, or as the Appellate Division thought that regulation equal to the State’s legitimate purpose should be; but it does not follow that the statute is violative of substantive due process. The legislature’s prescription of means, particularly in the arena of economic regulation, is entitled to judicial deference so long as those means are in a very broad sense reasonably related to the achievement of a permissible regulatory end (see Rochester Gas & Elec., 71 NY2d at 320; and see Concrete Pipe & Products of Cal., Inc. v Construction Laborers Pension Trust for Southern Cal., 508 US 602, 639 [1993] [“under the deferential standard of review applied in substantive due process challenges to economic legislation there is no need for mathematical precision in the fit between justification and means”]). We see no ground to doubt the constitutional adequacy of that relation here.

In employing the three percent threshold based on annual facility revenue, the legislature, exercising the discretion that is ordinarily its prerogative in matters of economic regulation (see Montgomery v Daniels, 38 NY2d 41, 64 [1975]), put in place a mechanism that would at once identify contemplated withdrawals sufficiently substantial to be of legitimate regulatory concern, and afford owners of facilities with positive net worth a measure of unregulated access to facility assets and equity. We note that the reasonableness of the same threshold employed for the same identifying purpose in Public Health Law § 2808 (5) (b) is not challenged by plaintiffs. Rather, the core objection to the three percent threshold would appear to be that, in the context of section 2808 (5) (c), its crossing triggers a “freeze” on availability of facility equity for private, non-facility purposes that plaintiffs believe is unwarranted, since their facilities, and the others affected by section 2808 (5) (c), have positive net worth positions. The subdivision’s “freeze” upon assets or equity exceeding the three percent threshold, however, lasts no longer than the 60 days statutorily afforded the Commissioner to decide a withdrawal application. And, the constraint on access to facility funds within that period is, we think, justified by the legislature’s reasonable election to avoid financially improvident withdrawals and their potentially irremediable consequences altogether; facility funds once alienated may be very difficult to recapture and facility operations once compromised for lack of adequate funding may occasion irreparable harm within an especially fragile and dependent resident population. Even facilities with technically positive equity positions are not insusceptible to these prudently avoided consequences of substantial equity/asset withdrawal. Moreover, nursing homes are with ample historical and practical justification pervasively regulated and, in that context particularly, the additional regulatory increment about which plaintiffs now complain cannot be viewed as a constitutionally untoward assault upon the private property interests of facility owners (see Rochester Gas & Elec., 71 NY2d at 322).

Plaintiffs’ alternative theory for deeming section 2808 (5) (c) unconstitutional—that the provision’s catch-all phrase effects an improper delegation of legislative policy-making power—is not, in our view, more viable than their substantive due process claim. Although the principle of ejusdem generis may not be strictly applicable to require a limitation of the catch-all’s reference, since the statute’s enumeration is of general criteria and not particular things within a single category of which the catch-all would be naturally comprehended as a circumscribed extension (see McKinney’s Cons Laws of NY, Book 1, Statutes § 239 [b]), it does not follow that the catch-all effects an unconstitutional delegation. Indeed that is a construction to be avoided, if at all possible (LaValle v Hayden, 98 NY2d 155, 161 [2002]), and here we think its avoidance entirely practicable. The enumerated criteria clearly tie the Commissioner’s disposition of an equity withdrawal application to the financial condition of the facility and its quality of care record. These are highly pertinent and not excessively general criteria and it is reasonably clear, and in any case conceded by defendants, that the catch-all’s immediately subsequent reference to “such other factors” does not authorize application dispositions based on criteria that are genetically different. We have recognized that the legislature “has considerable latitude in determining the reasonable and practicable point of generality in adopting a standard for administrative action and, thus, [that] ‘a reasonable amount of discretion may be delegated to the administrative officials.’ ” (Matter of Big Apple Food Vendors’ Assn. v Street Vendor Review Panel, 90 NY2d 402, 407 [1997], quoting Matter of Levine v Whalen, 39 NY2d 510, 515-516 [1976].) Inasmuch as the language of the subject subdivision does not absolutely require the conclusion that the legislature’s delegation to the Commissioner was constitutionally excessive and the State has, in fact, conceded that the delegation is limited so as to confine the Commissioner, in passing upon a withdrawal application, to the consideration of factors bearing upon a facility’s economic condition and quality of care, the conclusion pressed upon us by plaintiffs, that the statute must be invalidated as an affront to the separation of powers, is not legally available.

We have reviewed plaintiffs’ remaining arguments and find them to be without merit.

Accordingly, the appealed judgment and the order of the Appellate Division brought up for review should be reversed, with costs, and judgment granted to defendants declaring that Public Health Law § 2808 (5) (c) is constitutional to the extent challenged.

Judges Graffeo, Read, Smith, Pigott, Rivera and AbdusSalaam concur.

Judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, and judgment granted to defendants declaring that Public Health Law § 2808 (5) (c) is constitutional to the extent challenged.

      . An earlier version of the statute (L 2009, ch 58, part D, § 11) required pre-approval of asset/equity withdrawal when the amount involved equaled or exceeded three percent of the facility’s total annual Medicaid revenue. The statute’s amendment was evidently responsive to the facility owners’ contention that Medicaid revenue is not a reliable index of a facility’s financial health and that the use of Medicaid revenue as a basis for determining the extent of their unconditioned access to facility assets or equity was unduly restrictive. While the amendment made significantly larger, unpreapproved withdrawals possible, it was ultimately unsatisfactory to plaintiffs who amended their complaint to target the substituted pre-approval requirement.

        (n. cont’d)

      . Any withdrawal from a facility in a negative net worth position would, under subdivision (5) (a) of the statute, trigger the pre-approval requirement.

      . Withdrawals for facility purposes, including the payment of salaries and taxes, are not counted toward the three percent threshold (see 10 NYCRR 400.19 [a] [3]).

      . The record discloses that the vast majority of subdivision (5) (c) withdrawal applications have been timely approved.


author: Pigott, J.

text:
    [999 NE2d 516, 977 NYS2d 153]
    Alfred G. Osterweil, Appellant, v George R. Bartlett, III, Respondent.
    Argued September 12, 2013;
    decided October 15, 2013

      POINTS OF COUNSEL

      Greenbaum, Rowe, Smith & Davis LLP, Woodbridge, New Jersey (Daniel L. Schmutter of counsel), and Bancroft PLLC (Paul D. Clement, of the District of Columbia bar, admitted pro hac vice, and D. Zachary Hudson, of the District of Columbia bar, admitted pro hac vice, of counsel) for appellant.
    I. A ban on home handgun possession by part-time state residents violates the Second Amendment. (District of Columbia v Heller, 554 US 570; Kachalsky v County of Westchester, 701 F3d 81; United States v Decastro, 682 F3d 160; San Antonio Independent School Dist. v Rodriguez, 411 US 1; Perry Ed. Assn. v Perry Local Educators’ Assn., 460 US 37; Anonymous v City of Rochester, 13 NY3d 35; Hernandez v Robles, 7 NY3d 338; Eu v San Francisco County Democratic Central Comm., 489 US 214; Ashcroft v American Civil Liberties Union, 542 US 656; United States v Playboy Entertainment Group, Inc., 529 US 803.) II. A ban on home handgun possession by part-time state residents violates the Equal Protection Clause. (Plyler v Doe, 457 US 202; Cleburne v Cleburne Living Center, Inc., 473 US 432; Harper v Virginia Bd. of Elections, 383 US 663.) III. This Court should construe New York law governing home handgun possession as not requiring domicile. (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385; Matter of Contento v Kohinke, 42 AD2d 1025; Alliance of Am. Insurers v Chu, 77 NY2d 573.)

      Eric T. Schneiderman, Attorney General, New York City (Claude S. Platton, Simon Heller, Barbara D. Underwood and Richard Dearing of counsel), for respondent.
    The residency language of the handgun licensing statute should not be construed to impose a domicile requirement. (Antone v General Motors Corp., Buick Motor Div., 64 NY2d 20; Rawstorne v Maguire, 265 NY 204; Matter of Hosley v Curry, 85 NY2d 447; People

      ex rel. Simpson v Wells, 181 NY 252; Overstock.com, Inc. v New York State Dept. of Taxation & Fin., 20 NY3d 586; People v Finkelstein, 9 NY2d 342; Lyng v Northwest Indian Cemetery Protective Assn., 485 US 439; Ashwander v TVA, 297 US 288; People v Felix, 58 NY2d 156, 464 US 802; Rooney v Tyson, 91 NY2d 685.)
   OPINION OF THE COURT

Pigott, J.

The United States Court of Appeals for the Second Circuit, by certified question, asks us to decide whether an applicant who owns a part-time residence in New York but makes his permanent domicile elsewhere is eligible for a New York handgun license in the city or county where his part-time residence is located. We answer the certified question in the affirmative, on the basis of the relevant statute. As we explain below, it is therefore unnecessary for us to decide the constitutional issues raised by appellant.

I.

Appellant Alfred G. Osterweil, a resident of Summit, New York, a town in Schoharie County, applied on May 21, 2008 for a New York State pistol/revolver license pursuant to Penal Law § 400.00. The Schoharie County Sheriff initiated the required background investigations (see Penal Law § 400.00 [4]). On June 25, in the course of correspondence on an unrelated matter, Osterweil informed the Sheriff that he had bought a home in Louisiana and that he intended to “make that state my primary residence,” while keeping “a vacation property here in Schoharie County.” Osterweil asked whether he would still be eligible for a handgun license.

Osterweil’s letter raised an important question. Penal Law § 400.00 (3) (a) provides that

“[applications shall be made and renewed, in the case of a license to carry or possess a pistol or revolver, to the licensing officer in the city or county, as the case may be, where the applicant resides, is principally employed or has his principal place of business as merchant or storekeeper” (emphasis added).

At the heart of Osterweil’s query is the distinction between residence and domicile. Generally, establishing residence “turns on whether [one] has a significant connection with some locality in the State as the result of living there for some length of time during the course of a year” (Antone v General Motors Corp., Buick Motor Div., 64 NY2d 20, 30 [1984]), whereas “[establishment of a domicile in a [place] generally requires a physical presence in the [place] and an intention to make the [place] a permanent home” (id. at 28), i.e., intent to remain there for the foreseeable future. It follows that an individual can have more than one residence, but only one domicile (see id.). Osterweil maintained a residence in Schoharie County, but could no longer claim it as his domicile. Therefore, if a New York domicile is required for a handgun license, the statute makes him ineligible.

The Sheriff forwarded Osterweil’s application and query to respondent George R. Bartlett, III, Schoharie County Court Judge and also the county’s licensing officer. Osterweil submitted an affidavit to Judge Bartlett, stating that he and his wife continued to play a role in “social, political and community affairs” in Summit, even though they no longer made their primary residence there. He also cited the United States Supreme Court’s recent decision in District of Columbia v Heller (554 US 570 [2008]), in which the Supreme Court struck down a District of Columbia law banning the possession of handguns in the home, holding that “the absolute prohibition of handguns held and used for self-defense in the home” is unconstitutional under the Second Amendment (id. at 636; see also McDonald v Chicago, 561 US —, 130 S Ct 3020 [2010]).

In May 2009, Judge Bartlett denied Osterweil’s application for a handgun license, relying on Penal Law § 400.00 (3) (a) and an Appellate Division decision, Matter of Mahoney v Lewis (199 AD2d 734 [3d Dept 1993]), which held that “as used in this statute the term residence is equivalent to domicile” (id. at 735). Judge Bartlett further ruled that such a domicile requirement was constitutional, under Heller, as a lawful regulatory measure.

II.

In July 2009, Osterweil commenced this action pursuant to 42 USC § 1983 in the United States District Court for the Northern District of New York, alleging that Judge Bartlett had violated his Second Amendment right to keep and bear arms and his Fourteenth Amendment right to equal protection, by denying his license application on the ground of his domicile. He sought an injunction ordering the State to grant his application. Judge Bartlett, represented by the Attorney General’s office, and Osterweil each moved for summary judgment.

On May 20, 2011, the District Court granted Judge Bartlett summary judgment, rejecting Osterweil’s Second Amendment and Fourteenth Amendment claims (see Osterweil v Bartlett, 819 F Supp 2d 72, 85-87 [ND NY 2011]). On appeal, before the United States Court of Appeals for the Second Circuit, Osterweil reiterated his position that a domicile requirement for handgun possession is unconstitutional. The Attorney General now argued that Penal Law § 400.00 (3) (a) does not in fact contain a domicile requirement, obviating the need to reach the constitutional issues. On January 29, 2013, the Second Circuit, in an opinion by retired United States Supreme Court Justice Sandra Day O’Connor, certified the following question to us:

“Is an applicant who owns a part-time residence in New York but makes his permanent domicile elsewhere eligible for a New York handgun license in the city or county where his part-time residence is located?” (Osterweil v Bartlett, 706 F3d 139, 145 [2d Cir 2013].)

We accepted the certified question, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR) (20 NY3d 1058 [2013]), and now answer it in the affirmative.

III.

In this unusual case, both appellant and respondent would have us answer the certified question in the affirmative. However, respondent asks us to answer the question purely on the basis of the statute, whereas appellant urges us to rule that the law cannot require domicile for handgun license eligibility because that would be unconstitutional.

We take a straightforward approach to this dispute. If Penal Law § 400.00 (3) (a) does not require domicile, then there is no need to decide the constitutionality of a hypothetical statute that requires domicile. The question concerning the meaning of the statute at issue—the question certified to us—must be answered prior to any question concerning its constitutional validity. This is not a case in which we are faced with an ambiguous statute requiring us to favor an interpretation that renders it constitutional over constructions that would invalidate it.

IV.

Penal Law § 400.00 (3) (a) states that applications for a license to carry a pistol or revolver “shall be made and renewed ... to the licensing officer in the city or county, as the case may be, where the applicant resides, is principally employed or has his principal place of business as merchant or storekeeper.” The applicant’s residence is referred to in the context of delineating the procedure whereby an individual files an application for a license. The applicant is instructed to apply to the licensing officer in the city or county where he resides (or is principally employed, etc.). The plain language of the statute is not consistent with the theory that the law requires an applicant to establish domicile as an eligibility requirement. Were it so, we would expect to see the manner of proof of domicile set out in the statute.

Moreover, the legislative history of the statutes that underlay Penal Law § 400.00 evinces an intent to ensure that an applicant for a handgun license applies in his place of residence, rather than an intent to limit licenses to applicants who make their domicile in New York. The residency language was added to the Penal Law by chapter 792 of the Laws of 1931. Former Penal Law § 1897 was amended by adding a subdivision, (9-a), which read as follows:

“No license shall be issued by the police commissioner of the city of New York except to a resident of that city. Outside of the city of New York, no license shall be issued by a judge or justice of a court of record except to a resident of the county in which the office of such judge or justice is located. A license may be issued, however, to a qualified person principally employed in such city or county and to a merchant or storekeeper having his principal place of business in such city or county” (L 1931, ch 792, §4).

At the beginning of September 1931, the month in which this law was passed, Governor Roosevelt wrote to the legislature, sitting in extraordinary session, attaching a letter he had received from the Police Commissioner of New York City. The Police Commissioner recommended that then Penal Law § 1897 be amended to ensure “[t]hat permits to carry a pistol upon the person or to be kept upon the premises be issued only by the police commissioner or chief of police of any city in this State and in the rural communities by the sheriff of the county” (Letter from Edward P Mulrooney, New York City Police Commissioner, to Governor Franklin D. Roosevelt, Aug. 29, 1931, reprinted, in Public Papers of Governor Franklin D. Roosevelt, 1931 at 184 [1937]). Commissioner Mulrooney spelled out the reasons:

“Many persons of unsavory reputation, or with criminal records, are apprehended in [New York City] and are found in the possession of pistol permits issued by a judge or justice of a court of record in other counties of the State.
“In [New York City] permits are issued by the police commissioner only after the applicant is fingerprinted, photographed and investigated, whereas in other counties of the State permits are issued with little or no investigation” (id.).

Summarizing the issue, Governor Roosevelt wrote that “[i]t is a fact that the present issuing of revolver permits by judges anywhere in the State is working badly, and permits must be more carefully guarded” (Message to the Legislature, Sept. 1, 1931, reprinted in Public Papers of Governor Franklin D. Roosevelt, 1931 at 183).

This history indicates that the residence language was introduced to prevent New York City residents from obtaining handgun permits in counties where, at the time, investigations of applicants were much less thorough than in the city. It is therefore evident that the law was originally designed to ensure that licenses were obtained where applicants resided, and to discourage “forum-shopping,” rather than to exclude certain applicants from qualifying at all.

The corresponding residence language in today’s Penal Law § 400.00 (3) (a) is derived from former Penal Law § 1903, which was added in 1963 (L 1963, ch 136, § 8; see 1963 McKinney’s Session Laws of NY at 155), and then adopted in the revised Penal Law provisions of 1965 (L 1965, ch 1030; see 1965 McKinney’s Session Laws of NY at 1691). Appellant points to no legislative history from the 1960s suggesting that the relevant intent of the legislature was different then from what it had been in 1931. We conclude that there was no intent by the legislature to exclude applicants on the basis of domicile.

Finally, and most conclusively, Penal Law § 400.00 itself contemplates that licenses may be issued to individuals who do not make their domicile in New York. When a license to carry or possess a pistol or revolver “is issued to an alien, or to a person not a citizen of and usually a resident in the state, the licensing officer shall state in the license the particular reason for the issuance and the names of the persons certifying to the good character of the applicant” (Penal Law § 400.00 [7]). Since a handgun license may be issued, under the statute, to a person who is “not . . . usually a resident” in New York State, it is clear that there is no requirement of domicile.

V.

Because we hold that Penal Law § 400.00 (3) (a) does not preclude an individual who owns a part-time residence in New York but makes his permanent domicile in another state from applying for a New York handgun license, we have no occasion to decide whether a contrary law would be unconstitutional.

Accordingly, the certified question should be answered in the affirmative.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Rivera and Abdus-Salaam concur.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.27 of the Rules of Practice of the New York State Court of Appeals, and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered in the affirmative.


author: Abdus-Salaam, J. Rivera, J. (dissenting). Smith, J. (dissenting).

text:
    [999 NE2d 160, 976 NYS2d 682]
    The People of the State of New York, Respondent, v Chadon Morris, Appellant.
    Argued September 4, 2013;
    decided October 15, 2013

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (Barry Stendig of counsel), for appellant.
    Appellant was deprived of his right to a fair trial when the court admitted, over objection, a 911 call reporting an uncharged gunpoint robbery committed by a man whose description, according to police testimony, fit appellant even though appellant admitted that he possessed the gun charged in the indictment and the defense made it clear it would not challenge the propriety of the police conduct. (People v Cass, 18 NY3d 553; People v Lewis, 69 NY2d 321; People v Ventimiglia, 52 NY2d 350; People v Santarelli, 49 NY2d 241; People v Allweiss, 48 NY2d 40; People v Arafet, 13 NY3d 460; People v Alvino, 71 NY2d 233; People v Molineux, 168 NY 264; People v Tosca, 98 NY2d 660.)

      Richard A. Brown, District Attorney, Kew Gardens (Rebecca Height, Robert J. Masters and John M. Castellano of counsel), for respondent.
    The court properly admitted the 911 call and related testimony as background, to complete the narrative, and to help the jury understand the disputed actions of the police during the encounter in which the weapon was recovered. (People v Resek, 3 NY3d 385; People v Scarola, 71 NY2d 769; People v Lewis, 69 NY2d 321; People v Giles, 11 NY3d 495; People v Alvino, 71 NY2d 233; People v Allweiss, 48 NY2d 40;
      People v Till, 87 NY2d 835; People v Alfaro, 19 NY3d 1075; People v Gamble, 18 NY3d 386; People v Dorm, 12 NY3d 16.)
   OPINION OF THE COURT

Abdus-Salaam, J.

In People v Tosca (98 NY2d 660 [2002]) and People v Resek (3 NY3d 385 [2004]), we held that a trial court may, in its discretion, admit evidence of uncharged crimes to provide background information explaining the police actions to the jury if the probative value of the evidence outweighs the prejudice to the defendant, and the evidence is admitted with proper limiting instructions. Our application of these principles led to opposite outcomes in those cases: in Tosca, we held that the trial court did not abuse its discretion by allowing police testimony describing an uncharged crime (see 98 NY2d at 661); in Resek, we determined that the prejudicial value of such testimony, admitted with inadequate jury instructions, exceeded its probative worth (see 3 NY3d at 387).

Relying on Resek, defendant challenges the trial court’s decision to allow the People to introduce a recording of a 911 telephone call reporting that a person matching defendant’s description committed an uncharged gunpoint robbery, and police testimony describing the radio run they received about the call. We conclude that, under the circumstances of this case, the trial court did not abuse its discretion by permitting this evidence to be admitted, along with several thorough limiting instructions, as background information to explain the aggressive police action toward defendant.

I

The undisputed facts are as follows. Just after midnight on May 25, 2007, a 911 caller reported that a black male, wearing a white t-shirt with red sleeves, dark pants, and a white Band-aid on his chin, pulled a gun and stole the caller’s chain necklace at Beach 21st Street and Elk Drive in Far Rockaway. The caller stated that the perpetrator was with two other black males and that, after the attack, all three men walked down Beach 20th Street toward a CVS store on Seagirt Boulevard.

Police Officers Glenn Ziminski and Edward Moore were on routine patrol in Far Rockaway when they received a radio run from central dispatch reporting the gunpoint robbery. The dispatcher relayed the 911 caller’s description of the robber, his possible location, and that he was with two other black males. The officers responded immediately, driving their marked patrol car with lights and siren activated until they reached Beach 20th Street, where they observed defendant. Having determined that defendant appeared to fit the description conveyed in the radio run, the officers turned their lights and siren off and pulled alongside him. They exited the patrol car and ordered defendant to approach.

What occurred next was contested at trial, but there is no question that the officers acted aggressively toward defendant. Their actions included, at a minimum, grabbing defendant as he approached and forcibly pressing him against the patrol car. The officers ultimately recovered a .22 caliber Beretta semiautomatic pistol either on or near defendant’s person. Defendant was arrested and later indicted for resisting arrest (see Penal Law § 205.30) and two counts of criminal possession of a weapon in the second degree, one charging possession with intent to use the gun unlawfully (see Penal Law § 265.03 [1] [b]), and one charging possession not in his home or place of business (see § 265.03 [3]).

Prior to trial, the People asked the trial court to permit them to introduce a recording of the 911 call and to allow the officers to testify that they stopped defendant because he matched the description relayed in the radio run. The People urged that this evidence would complete the narrative of the arrest and explain the aggressive police actions to the jury, which would be called upon to assess the officers’ conduct and credibility. Defendant objected, arguing that the evidence lacked probative value because he planned to admit that he possessed the gun recovered by the police. He also contended the evidence was prejudicial to his defense of temporary innocent possession. Defendant suggested that, rather than admit the 911 evidence, the court merely explain to the jury that “the reasoning for the defendant’s stop has been dealt with, [and] is not a matter for your concern,” and limit the police officers’ testimony on the subject to the following statement: “Pursuant to a radio run, we stopped defendant.”

The court ruled that the 911 evidence could be introduced at trial with appropriate limiting instructions. Balancing the probative value of the evidence against its potential prejudice, the court determined that the 911 call provided necessary background information that put the police actions in proper context for the jury. Without that background information, the court feared the jury would engage in “rampant speculation that the defendant . . . was just singled out as a young Black male in Queens . . . harassed by the police for no good reason.” Suppressing the evidence and issuing defendant’s proposed jury instruction, the court reasoned, would not deter such speculation. The court ruled, however, that if defendant took the stand, the People could not cross-examine him about any details concerning the uncharged robbery to challenge his credibility.

During trial, the court gave four limiting instructions to the jury regarding its consideration of the 911 evidence. Each instruction emphasized that the evidence was being admitted solely “to explain the police actions in this case” and not for the truth of what the 911 caller said or to prove that defendant committed a gunpoint robbery. Critically, after the People played the recording of the 911 call, the court told the jury:

“Those statements from the individual that you heard on the 911 CD, they are not being admitted at this trial for the truth of what that person is saying to the 911 dispatcher. Indeed, if you hear any further testimony at this trial relative to those statements made by that caller, that evidence is not being admitted for the truth of what the caller is saying to the 911 dispatcher. As I told you yesterday, that evidence is admitted now and any further evidence related to this issue is admitted for a specific, limited purpose. The evidence is being admitted to explain the police actions, to explain what [they] did . . . after getting those transmissions or getting at least the substance of those transmissions relayed to that. That’s the only reason it’s being admitted. I am cautioning you again, that the defendant is not on trial for robbery. He’s not on trial for robbery with a gun and you have to keep all of that in mind.”

The People presented testimony from, among other witnesses, Officers Ziminski and Moore, who each testified that they stopped defendant because he matched the description in the radio run. The officers stated that they observed defendant walking with two black males near the reported location along Beach 20th Street toward Seagirt Boulevard. Ziminski grabbed defendant as he approached and held him against the patrol car, while Moore frisked defendant’s clothing, recovering the gun from a rolled-up cuff of his sweatpants. While the officers were examining the gun, defendant allegedly attempted to flee but was caught by Ziminski. A struggle ensued as the officers attempted to handcuff defendant, which ended with Ziminski tackling defendant to the ground. On cross-examination, the officers admitted that they did not recover a chain from defendant or any of the men (the other two men were frisked but not arrested), or retrieve the white Band-Aid, which they testified fell off defendant’s chin during the struggle.

Defendant took the stand to present his temporary innocent possession defense, stating that he found the gun on the ground near the CVS store and that he intended to notify the police about it after returning home. These plans were thwarted, however, when the officers stopped him just minutes later on Beach 20th Street. Defendant indicated that he was alone at the time of the police stop, and that he was walking toward Plain-view Avenue (rather than toward Seagirt Boulevard as the officers testified).

Defendant’s description of the police encounter differed in significant respects from that of the officers. According to defendant, he was trying to tell the officers that he had just found the gun when they pushed him down and grabbed his waist, causing the gun to fall on the ground. The officers then pressed him against the patrol car; defendant denied ever taking his hands off the car and stated that he merely turned his head in shock when the officers said he was “going down for a robbery.” The officers allegedly reacted by striking defendant on the back of the head, jumping on him, and hitting him several times in the face, causing injuries that required hospitalization and stitches.

Instructed on the defense of temporary innocent possession of a firearm, the jury returned a verdict acquitting defendant of the criminal possession of a weapon count charging possession with intent to use the gun unlawfully, but convicted defendant of the count charging possession not in his home or place of business. Defendant was also acquitted of resisting arrest. He was sentenced to a determinate prison term of five years, to be followed by five years of postrelease supervision.

Defendant appealed and the Appellate Division affirmed the judgment of conviction (89 AD3d 1112 [2d Dept 2011]). Citing our decisions in Tosca and Resek, the Appellate Division held that the trial court’s admission of the 911 evidence did not deprive defendant of a fair trial because that evidence was properly admitted to provide background information, had a greater probative value than prejudicial effect, and was accompanied by several limiting instructions (see id. at 1112-1113). Defendant now appeals pursuant to leave granted by a Judge of this Court (19 NY3d 964 [2012]), and we now affirm.

II

We begin with the familiar proposition that evidence of uncharged crimes is inadmissible where its purpose is only to show a defendant’s bad character or propensity towards crime (see e.g. People v Arafet, 13 NY3d 460, 465 [2009]; People v Giles, 11 NY3d 495, 499 [2008]; People v Alvino, 71 NY2d 233, 241 [1987]). However, “[w]hen evidence of uncharged crimes is relevant to some issue other than the defendant’s criminal disposition, it is generally held to be admissible on the theory that the probative value will outweigh the potential prejudice to the accused” (People v Allweiss, 48 NY2d 40, 47 [1979]).

People v Molineux (168 NY 264 [1901]) prescribes five well-recognized, nonpropensity purposes for which uncharged crimes may be relevant (see Alvino, 71 NY2d at 242 [“to show (1) intent, (2) motive, (3) knowledge, (4) common scheme or plan, or (5) identity of the defendant”]; see also e.g. People v Ventimiglia, 52 NY2d 350, 359 [1981]; Molineux, 168 NY at 293). The Molineux categories are not exhaustive, however (see People v Santarelli, 49 NY2d 241, 248 [1980]), and we have held that evidence of prior, uncharged crimes may also be relevant to complete the narrative of the events charged in the indictment (see e.g. People v Till, 87 NY2d 835, 837 [1995]; People v Gines, 36 NY2d 932, 932-933 [1975]), and to provide necessary background information (see e.g. Till, supra; People v Green, 35 NY2d 437, 442 [1974]; see also Resek, 3 NY3d at 390; Tosca, 98 NY2d at 661).

Even if the uncharged crimes evidence meets the relevancy threshold (see People v Cass, 18 NY3d 553, 560 [2012]), it is admissible “only upon a trial court finding that its probative value for the jury outweighs the risk of undue prejudice to the defendant” (Till, 87 NY2d at 836-837; see e.g. Cass, supra). This inquiry involves “one of balancing in which both the degree of probativeness and the potential for prejudice of the proffered evidence must be weighed against each other” (Ventimiglia, 52 NY2d at 359-360, citing Santarelli, 49 NY2d at 248, and Allweiss, 48 NY2d at 47). Weighing the evidence’s probative value against its potential prejudice to the defendant is a matter of discretion for the trial court (see Cass, 18 NY3d at 560 n 3). Accordingly, “our review is limited to determining whether the trial court abused its discretion” (id., citing People v Hudy, 73 NY2d 40, 55 [1988], abrogated on other grounds by Carmell v Texas, 529 US 513 [2000]; Alvino, 71 NY2d at 242).

In Tosca, we held that the trial court did not abuse its discretion by admitting uncharged crime evidence as background information to explain the police actions (98 NY2d at 661, affg 287 AD2d 330 [2001]). During Tosca’s trial on a charge of criminal possession of a weapon in the third degree, the trial court allowed a police officer to testify that, shortly before the defendant was arrested, an unidentified livery cab driver “had reported an encounter with [the] defendant involving a gun” (Tosca, 287 AD2d at 330). The defendant was convicted and the Appellate Division affirmed, concluding that the police officer’s “testimony was necessary to complete the narrative and to explain the aggressive nature of the police confrontation with defendant” (id.). We agreed that the testimony was properly admitted “not for its truth, but to provide background information as to how and why the police pursued and confronted defendant” (Tosca, 98 NY2d at 661, citing Till, 87 NY2d at 837). Further, any prejudice was ameliorated by “the trial court twice explicitly instructing] the jury on the limited use it could make of the testimony and that the testimony was not to be considered proof of the uncharged crime” (id.).

Two years after Tosca, we applied these principles in Resek and determined that admission of uncharged crime evidence deprived the defendant of a fair trial (see 3 NY3d at 387). There, the grand jury indicted the defendant for criminal possession of a controlled substance with intent to sell, but failed to indict on a charge of criminal possession of a stolen car (see id.). The trial court permitted two police officers to testify, over the defendant’s objection, that before they arrested the defendant, they witnessed him drive away in a stolen car. The court gave two limiting instructions, neither of which mentioned that the grand jury had failed to indict on the stolen car charge. Instead, the court told the jury not to infer whether “the defendant did or did not steal the car” (id. at 388).

We reversed the defendant’s conviction in Resek because “[ajdmission of the testimony under these circumstances was . . . error” (id. at 389). Because the trial court failed to inform the jury that the grand jury did not indict the defendant on the stolen car charge, the police testimony “left the jury with an incomplete and prejudicial narrative,” which outweighed the evidence’s “legitimate” probative value: preventing speculation by the jury that “the police wrongfully targeted [the defendant] or otherwise abused their authority” (id.). The prejudice to the defendant “was not ameliorated by the court’s limiting instruction,” which we explained “made matters worse” by implying that the defendant may have, in fact, committed the uncharged crime (id.). In light of these circumstances—and given that the defendant “conceded his possession of the recovered drugs he was charged with intending to sell”—we concluded that it would have “sufficed [for the trial court] to instruct the jurors that the arrest was lawful and that they were not to speculate as to its reasons” (id. at 390), as had been suggested by Resek’s counsel before jury selection (see id. at 388).

Tosca and Resek are on equal footing. We recognized in both cases that suppression of uncharged crime evidence may lead the jury to speculate that the police actions were wrongful (see Resek, 3 NY3d at 389; Tosca, 98 NY2d at 661), and in such situations, the evidence may be relevant to a material, nonpropensity issue: providing “background information” that explains the police encounter (Tosca, supra) “and thus help[s] the jury understand the case in context” (Resek at 389). The analysis follows under Tosca and Resek that, if the evidence’s probative value in explaining the police encounter outweighs any undue prejudice to the defendant, the trial court may, in its discretion, admit the evidence with “proper limiting instructions” (Resek, supra; see Tosca, supra).

Determining whether the probity of such evidence exceeds the prejudice to the defendant “is a delicate business,” and as in almost every case involving Molineux or Molineux-type evidence, there is the risk “that uncharged crime testimony may improperly divert the jury from the case at hand or introduce more prejudice than evidentiary value” (Resek at 389). Yet this case-specific, discretionary exercise remains within the sound province of the trial court (see id. at 388-389; Tosca, supra), which is in the best position to evaluate the evidence (see e.g. People v Scarola, 71 NY2d 769, 777-778 [1988]). Thus, the trial court’s decision to admit the evidence may not be disturbed simply because a contrary determination could have been made or would have been reasonable. Rather, it must constitute an abuse of discretion as a matter of law (see Cass, 18 NY3d at 560 n 3).

III

On this record, we cannot say that the admission of the 911 evidence was an abuse of discretion. The trial court reasonably determined that, given the aggressive nature of the police confrontation with defendant and the attendant risk of improper speculation by the jury, the 911 evidence was necessary to provide background information explaining the police actions, and that its probative value outweighed the potential prejudice to defendant (see Tosca, 98 NY2d at 661). Defendant claims that the 911 evidence had no probative value because he admitted to possessing the gun and agreed not to challenge the propriety of the police stop. But the 911 evidence was probative of all of the police conduct in this case, not just the stop itself. The police behaved aggressively after the stop and before they discovered the gun by singling out defendant, grabbing him, and forcing him up against their patrol car. By specifying why the officers stopped defendant in the first instance, the 911 evidence allowed the jury to put this conduct in the proper context.

The evidence was also probative of the officers’ credibility, which was a central issue for the jury to resolve on the resisting arrest charge (see People v Cotton, 143 AD2d 680, 681 [2d Dept 1988]; People v Utley, 60 AD2d 657, 658 [2d Dept 1977]; see generally People v Negron, 91 NY2d 788, 792 [1998]). The People had the burden of proving every element of the resisting arrest charge (see generally People v Hanley, 5 NY3d 108, 113 [2005]), and meeting that burden depended largely on the jury’s evaluation of the officers’ testimony and, particularly, the weight the jury accorded it in relation to contrary testimony proffered by defendant (see Cotton, 143 AD2d at 680-681, citing People v Gaimari, 176 NY 84, 94 [1903]; see also Negron, 91 NY2d at 792 [it is “our long-standing recognition that a jury is entitled to assess the credibility of witnesses and determine, for itself, what portion of their testimony to accept and the weight such testimony should be given”]). Although the officers admitted to grabbing defendant, pushing him against the car, and tackling him when he tried to escape, defendant testified that the officers hit him several times in the head and face, that he never tried to escape, and that the officers’ violent acts were essentially unprovoked. There was also contrary testimony about how the officers recovered the gun, which direction defendant was walking when he was stopped, and whether he was alone or with two black men as described in the radio run. The 911 evidence better enabled the jury to resolve these discrepancies and assess the credibility of the officers’ testimony. Without a complete picture of the events preceding the encounter, the jury would have had little reason not to fault the officers for being overly aggressive and to discredit their testimony as untruthful.

Any potential for prejudice here was offset by the trial court’s four strong limiting instructions, which emphasized that the 911 evidence “was not to be considered proof of the uncharged crime” (Tosca, 98 NY2d at 661). The prejudicial tipping point in Resek was the botched jury instruction, during which the trial court insinuated that the defendant may have been guilty of stealing the car (see 3 NY3d at 388). The court’s instructions in this case, by contrast, were well-timed, thorough, and in no way compounded the potential prejudice to defendant.

Jurors are presumed to have followed a trial judge’s limiting instructions (see e.g. People v Davis, 58 NY2d 1102, 1104 [1983]), and that presumption is appropriate here. The trial court explicitly instructed the jury, on four occasions, that the 911 evidence was not being admitted “for the truth that a robbery in fact occurred or that defendant was in fact the one who did that robbery.” Thus, the court did not “emphasize[ ] the robbery” (dissenting op at 604) so much as it emphasized the limited use of the 911 evidence. Defendant also took the stand to present his innocent possession defense, where he challenged the officers’ version of the arrest and their credibility, without the risk of being cross-examined about the purported robbery. Although the jury ultimately rejected his defense, it rendered a “discerning and discrete verdict” (Till, 87 NY2d at 837), acquitting defendant of the weapon count charging possession with intent to use the gun unlawfully and the resisting arrest charge.

Apart from the confusing jury instruction, other circumstances that conspired to deprive Resek of a fair trial are not present in this case. The grand jury did not fail to indict defendant for robbery (because the People never presented that charge), and he therefore was never “cleared” of the underlying prior crime like the defendant in Resek (3 NY3d at 389). There is also no indication that Resek concerned an aggressive police encounter like the one at issue here, or that the credibility of the testifying officers was so entwined with the People’s burden of proof on the charged crime of resisting arrest.

Finally, Resek does not require, as defendant and the dissent suggest, that a trial court suppress uncharged crime evidence every time a defendant proposes some “less prejudicial” alternative to admission (3 NY3d at 390). While trial courts cannot “automatically allow[ ] the prosecution to introduce evidence of uncharged crimes merely because the evidence is said to complete the narrative or furnish background information,” they also need not exclude uncharged crime evidence simply because a defendant stipulates that “the arrest was lawful” and asks that the jury be instructed “not to speculate as to its reasons” (id.). A contrary rule would effectively nullify trial courts’ discretion in these matters, and we would soon be called upon to parse which “means” are more or less prejudicial than others, when in fact trial courts are in a much better position to make these determinations.

Here, the trial court did not exceed its discretion by declining to instruct the jury that the stop was proper and to limit the officers’ testimony to exclude the details of the radio run. The court fairly determined that these limitations, proposed by defendant, “would have placed a mystery before the jury” (People v Barnes, 57 AD3d 289, 290 [1st Dept 2008], lv denied 12 NY3d 781 [2009]), inviting it to speculate whether defendant was harassed by police and to “draw[ ] unfair inferences concerning the officers’ credibility” (Tosca, 287 AD2d at 330 [trial court did not err in rejecting the “(d)efendant’s proffered stipulation that the police were simply responding to an unspecified radio run”]). Although other “less prejudicial means” may have been available or reasonable in this case (Resek, 3 NY3d at 390), the trial court did not abuse its discretion by failing to employ them, and we discern no basis upon which to disturb its decision.

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

Rivera, J. (dissenting).

The majority’s decision extends a limited exception for background and narrative evidence to the well established rule prohibiting admission of uncharged crimes. The majority upholds the admission of evidence of a 911 tape recording of unsubstantiated allegations of criminal activity, despite its lack of relevance to the charges against the defendant, and its prejudicial impact on the fairness of the trial. I dissent.

The rule prohibiting the admission of uncharged crimes is long standing (see People v Arafet, 13 NY3d 460, 464-465 [2009]; People v Giles, 11 NY3d 495, 499 [2008]; People v Lewis, 69 NY2d 321, 325 [1987]; People v Alvino, 71 NY2d 233, 241 [1987]; People v Johnson, 47 NY2d 785, 786 [1979]). It protects against the risk of a jury deciding against the defendant based not on the matters at hand, but on the juror’s sensibilities about the character of the defendant and the defendant’s propensity for criminal activity (see Alvino, 71 NY2d at 241 [“Evidence of similar uncharged crimes has probative value, but as a general rule it is excluded for policy reasons because it may induce the jury to base a finding of guilt on collateral matters or to convict a defendant because of his past”]). To the extent we have recognized exceptions to the general rule prohibiting admission of uncharged crimes, we have done so in limited and narrow circumstances (see People v Ventimiglia, 52 NY2d 350, 359 [1981]; People v Santarelli, 49 NY2d 241, 247-248 [1980]; People v Molineux, 168 NY 264, 293 [1901]). It is the People’s burden to establish the legal and factual basis for admission of evidence that is otherwise inadmissible (see Arafet, 13 NY3d at 470).

At issue in defendant’s case is the “background and narrative” exception, under which otherwise inadmissible evidence of uncharged crimes may be admitted when the court determines that it is “ ‘needed as background material’ . . . or to ‘complete the narrative of the episode’ ” (People v Till, 87 NY2d 835, 837 [1995], quoting People v Montanez, 41 NY2d 53, 58 [1976], and People v Gines, 36 NY2d 932, 932-933 [1975], and citing People v Morse, 196 NY 306, 310 [1909], and People v Governale, 193 NY 581, 587 [1908]). The purpose is to assist the jury “to sort out ambiguous but material facts” (People v Resek, 3 NY3d 385, 390 [2004]). Absent such ambiguity, or where the ambiguity can be addressed “by far less prejudicial means” than the admission of the uncharged crimes evidence, the exception is inapplicable (id. at 390).

In the limited cases where the exception applies, in order to be admissible the evidence of uncharged crimes must overcome two hurdles. First, it must be “relevant to a pertinent issue in the case other than a defendant’s criminal propensity to commit the crime charged” (Till, 87 NY2d at 836; see also People v Cass, 18 NY3d 553, 560 [2012]). Second, its probative value must “outweigh! ] the risk of undue prejudice to the defendant” (Till, 87 NY2d at 836, citing People v Chase, 85 NY2d 493, 502 [1995], People v Carter, 77 NY2d 95, 107 [1990], People v Hudy, 73 NY2d 40, 55 [1988], and Alvino, 71 NY2d at 241; see also Cass, 18 NY3d at 560; People v Green, 35 NY2d 437, 442 [1974] [“past events lacking both relevance and probative value are inadmissible”]; People v Allweiss, 48 NY2d 40, 47 [1979]).

The majority concludes that evidence contained in the 911 tape is relevant to the material, nonpropensity issue of providing background information that explained the police encounter, and helped the jury understand the case in context. I disagree.

The prosecution argued that admission of the 911 tape was necessary to explain the reason the police stopped the defendant, the justification for the police conduct during the search, and to explain the potential danger in which the officers found themselves during the police encounter with the defendant. However, there was no prosecution theory of defendant’s guilt furthered or clarified by the 911 tape. Nor can it be said that on the facts of defendant’s case the jury needed a deep, illustrative “narrative” of the police encounter to determine defendant’s innocence or guilt of the charges.

As relevant here, all the People needed to prove the criminal weapons possession charges was that the police had stopped defendant, frisked him, and recovered a firearm from his person. In response, defendant would have advanced his claim of “transitory possession.” The fact that the police stopped defendant based on a call about a robbery might have been relevant to assist the jury in understanding the lawfulness of the stop. However, once defense counsel stated that the defendant would not challenge the stop in any way, and offered for the judge’s consideration an instruction that the stop was lawful, there was no ambiguity that could be clarified with the 911 tape evidence.

The majority concludes that evidence of the 911 call was needed to explain the resisting arrest charge, and that the potential prejudice was outweighed because the tape was probative of “all of the police conduct” (majority op at 597). The majority is simply wrong in characterizing this evidence as necessary for the jury’s understanding of the police conduct viewed in totality. Unlawful police conduct, presumably the alleged excessive use of force in this case, cannot be excused merely because the police had reasonable suspicion to stop (see generally People v De Bour, 40 NY2d 210, 223 [1976], citing CPL 140.50 [1]; Terry v Ohio, 392 US 1 [1968]), which is all that the 911 evidence presented to the jury. Moreover, the jury certainly did not need information to understand the police conduct when a gun was found on the defendant immediately after the stop.

As to the probative value of the 911 tape evidence with respect to the police officer’s credibility on the resisting arrest charge, the majority ignores the fact that the exception for background and narrative is a narrow one, and is not intended as a backdoor to allow the prosecution to bolster the credibility of the People’s witnesses. Otherwise, there would be carte blanche admission of this type of evidence whenever the credibility of the police is at issue. In such event the exception would swallow the rule.

The majority’s conclusion also ignores the reality of the impact on the fairness of the proceedings of the playback of the 911 tape and the references to its contents throughout the trial. The playback of the tape was powerful evidence which planted in the jurors’ minds the idea of defendant’s criminal propensity. Although the tape was about an alleged robbery, the tape emphasized that a gun was involved, and that the possessor posed a danger beyond the actual robbery. According to the transcript of the call, the caller specifically stated that “A guy now pulled a gun in my face.” In response to the operator’s questions regarding whether there had been a theft of the caller’s jewelry, the caller answers, “Yeah. I ain’t worried about the chain, but the gun.” Again, moments later in response to questions about the caller’s present location, he answers, “I ain’t concerned with the chain, I just want you to get this guy off the streets.” Thus, the 911 evidence not only provided the jury an opportunity, if not an invitation, to treat defendant as the robber, but it also was suggestive of the danger posed by the robber to the purported victim, as well as the community at large. There can be no doubt that this evidence pointed the finger at the defendant for the alleged robbery. Such evidence was prejudicial to the defendant and risked the jury’s diversion from the elements of the crimes actually charged.

The narrative presented to the jury was not a narrative that sought to complete the encounter with the police, or to better understand the facts—the only narrative permissible under our case law (see Till, 87 NY2d at 837). Rather, the narrative was a creative representation of the danger of a gun-toting robber on the streets, the robber being the defendant. If this were not enough to establish the prejudicial nature of this evidence, the evidence consisted of unsubstantiated allegations that never resulted in charges against the defendant. Thus, similar to Resek, where we noted that the defendant was cleared of the uncharged crime, the jury was not made fully aware of the fact that no criminal action was taken against defendant as a result of the 911 call (see Resek, 3 NY3d at 389-390). As in Resek, the narrative was misleading, providing an opportunity for the jury to speculate that the defendant committed the crime (see id.).

While uncharged crimes evidence is admitted to ensure that the jury will not “ ‘wander helpless’ trying to sort out ambiguous but material facts” (id. at 390, quoting Green, 35 NY2d at 441), there was no real possibility on this record of the jury “wander[ing] helpless[ly], as in a maze, were the decisive occurrences not placed in some broader, expository context” (Green, 35 NY2d at 441-442, citing People v Stanard, 32 NY2d 143, 146 [1973]; People v Atkins, 7 AD2d 393, 397 [1959]). The concern for avoiding speculation on the part of the jury was not at issue. In my opinion, to the extent the jury speculated, such speculation was precipitated by the court’s admission of the 911 call and its attempt to provide limiting instructions.

We have made clear that the exceptions to the prohibition on the admission of uncharged crimes are to be considered applicable in “exceptional circumstances, with limiting cautionary instructions” (Till, 87 NY2d at 837). Thus, the limiting nature of the evidence, and its role in the trial, must be further explained to the jury through proper instructions, always careful to cabin it for the jury’s consideration, and with an eye to insuring that the instruction does not further prejudice the defendant (see Resek, 3 NY3d at 389 [limiting instruction is improper where it “made matters worse” by suggesting defendant’s guilt]).

Here, the limiting instructions failed to cabin the jurors’ consideration of the 911 evidence. Defendant conceded gun possession in order to advance a particular defense, and expressly agreed not to challenge the lawfulness of the stop. The court, however, proceeded to remind the jury on four, separate occasions that defendant was not under arrest for robbery. Those instructions served to continuously remind the jury of defendant’s possible involvement in an armed robbery. Perhaps even more detrimental to the defendant, the court’s language suggested that there would be other references to the robbery. As the majority notes, the judge stated: “Indeed, if you hear any further testimony at this trial relative to those statements made by that caller, that evidence is not being admitted for the truth of what the caller is saying to the 911 dispatcher” (majority op at 592). This not only emphasized the robbery but alerted the jury to its continued significance to the trial. The fact that the court allowed the 911 tape to be played in open court, provided the jurors with a transcript of the call, permitted the police to testify to the call and the prosecutor to reference it several times, including during the summation, improperly drew attention to an uncharged crime. After numerous references by the judge, the centrality of the 911 evidence became all the more obvious to the jury. Thus, here there was a real possibility that the “jury may convict to punish the person portrayed by the evidence before them even though not convinced beyond a reasonable doubt of his guilt of the crime of which he is charged” (Ventimiglia, 52 NY2d at 359).

Here, there was no need to admit the 911 evidence to assist the jury in gaining “a thorough appreciation of the interwoven events leading to defendant’s culminating criminal conduct and of the competing theories of what happened and why” (Till, 87 NY2d at 837). As we stated in Resek, “there was no ambiguity that could not have been easily dealt with by far less prejudicial means” (3 NY3d at 390). There was no need to “fill in gaps in ‘interwoven events’ ” to contextualize the case for the jury (id. at 389). The evidence was not relevant and it was error to admit it (see Cass, 18 NY3d at 560 n 3). Further, the purported probative value as background information did not outweigh its prejudicial effect, and the judge’s assessment otherwise was an abuse of discretion (see id.). I dissent.

Smith, J. (dissenting).

I agree with Judge Rivera that the 911 tape should not have been admitted, because its prejudicial impact far outweighed any value it might have in forestalling speculation about whether the police officers acted properly. I differ from Judge Rivera in that for me it is the hearsay rule, not the rule prohibiting proof of uncharged crimes, that makes the tape inadmissible. Defendant’s possession and unlawful use of a firearm shortly before his arrest might well have been relevant to show his intent—if it could be proved by admissible evidence. But it could not be, and was not. As the trial court recognized, the tape of the 911 call was not admissible for the truth of the statements made by the caller. I find it impossible to believe that any jury, on the facts of this case, could limit its consideration of the tape to the nonhearsay purpose for which it was purportedly offered.

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

Order affirmed.

      . The People also revealed that, although the 911 caller identified defendant in a showup while defendant was being held at the scene of the arrest, he had since become unreachable and would not be testifying at trial.

      . The court issued limiting instructions after (1) the People referenced the 911 call in their opening statement, (2) the jury first heard the recording of the 911 call (and received a transcript as a demonstrative aid), (3) Officer Ziminski testified that he received a radio run about a gunpoint robbery, and (4) the People played the 911 call during their summation.

      . When Officer Ziminski referenced the radio run, the court stated to the jury: “I reiterate that same instruction, we are not trying a robbery. This testimony is not being offered for the truth that a robbery in fact took place, but just to explain [Officer Ziminski’s] actions in response to getting a radio run as to an alleged robbery.”

      . The dissent faults the trial court for its “numerous references” to the 911 evidence, contending that the four instructions only served to “continuously remind the jury of defendant’s possible involvement in an armed robbery” (dissenting op at 604). But it is counterintuitive to assume defendant was prejudiced by the trial court’s diligence in reminding the jury, at all critical junctures during trial, that it could not properly infer that defendant was guilty of armed robbery or consider the 911 evidence for any purpose other than “to explain the police actions” (see Tosca, 98 NY2d at 661).

       The majority discounts the effect of these instructions, and responds that it is counterintuitive to assume prejudice based on the judge’s reminders to the jury not to infer defendant’s guilt of the armed robbery and its instruction that the jurors consider the 911 evidence only to explain the police conduct (see majority op at 598 n 4). Taken to its logical conclusion, the majority’s argument would mean that limiting instructions, regardless of content, repetition, and the evidence referenced by the instructions, are sufficient to overcome the prejudice inherent in the admission of evidence of uncharged crimes. That is certainly not the law. We have found that erroneous or misleading instructions cannot serve to adequately direct the jury as to the proper use of such evidence (see e.g. Resek, 3 NY3d at 389). Here, the several admonitions by the judge, emphasizing the playback and all other references to the 911 call, encouraged speculation about the defendant’s role in the robbery.
      To the extent the majority relies on the assumption that jurors are presumed to have followed a trial judge’s limiting instructions (see majority op at 598-599), the majority fails to explain why that presumption does not apply to the instructions proposed by defense counsel. If the presumption applies, then we must assume the jurors would have followed defendant’s proposed instructions, thus avoiding the misuse by the jury of prejudicial evidence.