author: Garcia, J.

text:
    [68 NE3d 1224, 46 NYS3d 493]
    The People of the State of New York, Respondent, v Patrick Morgan, Appellant.
    Argued November 16, 2016;
    decided December 20, 2016

      POINTS OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City (Susan H. Salomon of counsel), for appellant.

      Darcel D. Clark, District Attorney, Bronx (Catherine M. Reno, Nancy D. Killian and Stanley R. Kaplan of counsel), for respondent.
   OPINION OF THE COURT

Garcia, J.

This case calls upon us to determine whether the trial court’s supplemental instruction given after the jury returned a “verdict” that was not in fact unanimous was “unbalanced and coercive” such that it deprived defendant of his right to a fair trial. We agree with the Appellate Division that the instruction was proper and affirm.

Defendant was charged with murder in the second degree, among other things, in connection with a shooting that occurred in 2008. On the second day of deliberations, the jury sent out a note claiming that it was deadlocked. The following morning, the court asked the parties for suggestions as to how to proceed. The People responded that the court should simply instruct the jurors to “continue deliberation” without any additional charge. Defense counsel stated he “would be [alright]” if the court “just mention[ed]” that the jury should “proceed with deliberation.” The court determined that “something more” was required, and instead repeated its final instruction concerning the jury’s duty to deliberate:

“To reach a unanimous verdict, you must deliberate with the other jurors. That means, you should discuss the evidence and consult with each other, listen to each other, give each other [s’] views careful consideration and reason together when considering the evidence. And when you deliberate, you should do so with a view toward reaching an agreement if that can be done without surrendering individual judgment. Each of you must decide the case for yourself, but only after a fair and impartial consideration of the evidence with the other jurors. You should not surrender an honest view of the evidence simply because you want the trial to end or you are outvoted. At the same time, you should not hesitate to re-examine your views and change your mind if you become convinced that your position was not correct.”

Approximately two hours later, the jury announced it had “come to a verdict.”

In open court, the foreperson confirmed that the jury had agreed upon a verdict and had found defendant not guilty of murder in the second degree, guilty of manslaughter in the first degree, and guilty of criminal possession of a weapon in the second degree. It was not, however, a unanimous verdict; subsequent polling of the individual jurors revealed that two jurors disagreed with respect to at least one of the charged counts.

The judge informed the parties that he believed the “proper action to take . . . would simply be to remind the jury that [the] verdict has to be unanimous” and instruct them to resume deliberations. In response, defense counsel moved for a mistrial stating that the two jurors “clearly . . . have a different opinion than the other ten,” and “are going to continue to have th[at] position.” The court denied the request as premature and provided the following instruction:

“Ladies and gentleman, you may recall that during my final instructions I told you that your verdict as to any count of the indictment that you consider must be unanimous. That is, all 12 jurors must agree.
“Therefore, I am not going to accept this verdict. Instead, I’m going to order that the 12 jurors go back to the jury room, resume your deliberations in an attempt to reach a unanimous verdict, that is where all 12 jurors agree as to any count submitted to you.”

After the jury was sent to deliberate, defense counsel asked the court to consider an additional jury instruction. The trial court declined to do so.

Deliberations continued through the following day. Among other things, the jury asked for defense counsel’s summation. The People objected, arguing that the summation was not in evidence. Defense counsel agreed, and the court declined to provide the summation to the jury. Later that day, the jury reached a verdict, finding the defendant not guilty of murder but guilty of manslaughter and criminal possession of a weapon. This time, polling was unanimous.

The Appellate Division, with one Justice dissenting, affirmed (People v Morgan, 124 AD3d 406 [1st Dept 2015]). The majority concluded that the court’s instruction given after polling revealed the split in the jury vote was “appropriate under the circumstances” and that “defendant was not deprived of due process by the absence from th[e] instruction of language reminding the jurors not to surrender their conscientiously held beliefs” (id. at 407). The majority noted that such language was included in the court’s prior charge, given just two hours earlier, and that “[j]urors are presumed to follow the legal instructions they are given” (id.). The majority also found that the charge “did not apply improper pressure on the two jurors who did not agree with the verdict or criticize those particular jurors” and was not coercive as demonstrated by the fact that the jury deliberated for a full day after the disputed charge (id.).

With respect to defendant’s contention that the court erred in denying the jury’s request for a readback of counsel’s summation, the majority held it was unpreserved and waived since counsel expressly agreed to the court’s proposal to deny the request (id. at 407). The majority found that, to the extent the record on direct appeal permitted review, defendant was not deprived of effective assistance of counsel by virtue of counsel’s failure to object (id. at 408).

The dissent would have found that the instruction was coercive for its failure to include “cautionary language admonishing [the jurors] to adhere to their conscientiously held views” and for potentially singling out the minority jurors (id. at 408-409 [Manzanet-Daniels, J., dissenting]). The dissenting Justice granted leave to appeal (2015 NY Slip Op 72429[U] [1st Dept 2015]).

On appeal, defendant again argues that the trial court’s supplemental instruction in response to the defective verdict was coercive because it did not include language conveying that the jurors were not to surrender their conscientiously held beliefs or, in the alternative, did not specifically refer to the cautionary language in the court’s previous deadlock charge. Defendant also contends that the court failed to exercise its discretion by refusing to grant the jury’s request to rehear the defense’s summation during deliberations and that defense counsel was ineffective in failing to object.

Pursuant to Criminal Procedure Law § 310.80, if in response to polling, “any juror answers in the negative, the court must refuse to accept the verdict and must direct the jury to resume its deliberation.” When confronting a potential deadlock, a court may give a supplemental jury charge that “encourage [s]” the jurors to reach a unanimous verdict (People v Aponte, 2 NY3d 304, 308 [2004]). However, the court “must not attempt to coerce or compel the jury to agree upon a particular verdict, or any verdict” (People v Pagan, 45 NY2d 725, 726 [1978] [internal quotation marks omitted], quoting People v Faber, 199 NY 256, 259 [1910]) and should not “prod jurors through prejudicial innuendoes or coerce them with untoward pressure to reach an agreement” (id., 45 NY2d at 727). Nor should the instruction “impermissibly singlet ] out [any juror] for noncompliance with the majority” or suggest “that the jury would be forced to continue deliberations indefinitely” (id.). Our cases make clear that the propriety of a supplemental instruction must be considered in context and in light of all the circumstances.

In People v Aponte, we held that a supplemental jury instruction was “unbalanced and coercive” where the court stated that “[t]he point of this process is to get a result” and stressed that “[something happened in this case . . . [i]t was proven or not . . . [t]he standard was met or it was not” (Aponte, 2 NY3d at 305-307). The court also instructed the jury that it would be a “rare occurrence” for a jury to be unable to resolve a case and that the jury was “nowhere near . . . the point where [the court] would begin to consider the possibility” of a deadlock (id. at 307). The jury returned a verdict a mere five minutes after this charge. We determined that these instructions warranted reversal because, among other things, they “overemphasized the jury’s obligation to return a verdict” and “suggest [ed] that the jurors were failing in their duty to reach a decision” (id. at 308). We also noted that the trial court should have included “encouraging language” in its charge to balance those problematic comments (id. at 309). Finally, although not “dispositive,” the “swiftness of the verdict” also suggested that the jury was coerced (id.).

By contrast, in People v Pagan, we upheld a supplemental charge instructing the jury that they were “expected to come to a verdict” and should continue deliberations to “make every effort possible to arrive at a verdict” (Pagan, 45 NY2d at 726). The jury returned a verdict approximately IV2 hours later. We held that, while the instruction was not “ideal,” the court “simply asked the jury to exert its best efforts and renew deliberations” (id. at 727). We emphasized that the jurors were not “improperly threatened” or “singled out for noncompliance with the majority,” nor did the trial court “suggest[ ] that the jury would be forced to continue deliberations indefinitely” (id.).

The supplemental instruction in this case, taken in context, was not coercive. In response to the jury’s representation that it had reached a “verdict”—when, in fact, the jury was not unanimous—the trial judge provided clarification that, in order to constitute a verdict, all jurors had to agree. Moreover, as in Pagan, the trial judge here stressed that the jurors should “attempt” to reach a verdict (45 NY2d at 726), thereby leaving “open the possibility that the jurors would have principled disagreements that would prevent them from reaching a unanimous verdict” (United States v McDonald, 759 F3d 220, 224 [2d Cir 2014]). The court did not “overemphasize” the need to return a verdict or “suggest[ ] that the jurors were failing in their duty” by not doing so (Aponte, 2 NY3d at 308; see McDonald, 759 F3d at 223). Nor did the court indicate that the jurors would be subject to “prolonged deliberations” (Aponte, 2 NY3d at 308).

Contrary to defendant’s claim, the absence of “cautionary language” is not fatal to the supplemental charge. Just two hours before its supplemental instruction, the trial court provided an instruction containing ample cautionary language reminding the jury “not [to] surrender an honest view of the evidence.” Moreover the jury continued to deliberate for a full day after receiving the challenged supplemental charge, suggesting that it was not coerced. Under these circumstances, the trial court’s instructions were not coercive and, accordingly, did not deprive defendant of his right to a fair trial.

Defendant’s claim concerning the trial court’s failure to read back defense counsel’s summation is unpreserved and otherwise meritless. On this record, we cannot say that defense counsel was ineffective for failing to object to the trial judge’s ruling.

The order of the Appellate Division should be affirmed.

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Order affirmed.


source: Caselaw Access Project

author: Stein, J.

license: Public Domain

text:
    [68 NE3d 1233, 46 NYS3d 502]
    Andrew J. Hain, Individually and as Executor of Holly J. Hain, Deceased, Respondent, v Angela J. Jamison et al., Appellants, and Drumm Family Farm, Inc., Respondent.
    Argued November 16, 2016;
    decided December 22, 2016

      POINTS OF COUNSEL

      Coughlin & Gerhart, LLP, Binghamton (James P. O’Brien and Rachel A. Abbott of counsel), for appellants.

      Cellino & Barnes, P.C., Buffalo (Ellen B. Sturm of counsel), for Andrew J. Hain, respondent.

      Brian P. Fitzgerald, P.C., Buffalo (Derek J. Roller of counsel), for Drumm Family Farm, Inc., respondent.
   OPINION OF THE COURT

Stein, J.

The sole issue before us on this appeal is whether defendant Drumm Family Farm, Inc., established its entitlement to summary judgment by demonstrating the absence of a material question of fact regarding whether its alleged negligence was a proximate cause of decedent’s death. We conclude that the Farm failed to meet its burden as the movant, and that proximate cause is, therefore, a question for the factfinder.

L

Decedent, the wife of plaintiff, was struck and killed by a vehicle driven by one of the Jamison defendants as decedent was walking in the northbound lane of a rural road late one evening. Plaintiff, individually and on behalf of decedent’s estate, subsequently commenced this negligence action against the Jamison defendants and Drumm Family Farm, Inc. Plaintiff alleged that, at the time of the collision, decedent was assisting a calf that was loose in the roadway. The calf, owned by the Farm, had escaped its nearby enclosure. The complaint alleged that the driver who struck decedent was negligent in operating her vehicle, and that the Farm was negligent for failing to maintain its fence and restrain or retrieve the calf, thereby allowing it to wander into the roadway. The Farm and the Jamison defendants answered the complaint, and asserted cross claims for contribution and indemnification.

Thereafter, the Farm moved for summary judgment dismissing the complaint and all cross claims asserted against it, arguing that its alleged negligence in allowing the calf to escape or failing to retrieve it did not constitute a proximate cause of decedent’s death. Rather, the Farm argued, decedent’s intervening and unforeseeable act of exiting her vehicle and entering the roadway in an attempt to assist the calf, and the other driver’s negligence in operating her vehicle, were the only proximate causes of decedent’s death.

In support of its motion, the Farm proffered the driver’s deposition testimony explaining the circumstances of the collision. According to the driver, she was traveling north on the road in question, shortly after 10:00 p.m., when she slowed her vehicle to maneuver a curve in the road. As she came around the bend, she saw “very bright” headlights from a vehicle pulled over on the left, or southbound, side of the road. As the driver’s vision adjusted and she passed the stopped vehicle, she saw decedent in the road milliseconds before hitting her and what she thought, at the time, was a dog—but which she later learned was a calf.

The Farm also submitted portions of the deposition testimony of Daniel Drumm, the Farm’s owner, wherein he recounted that the calf involved in the accident had been born earlier that day. Drumm averred that he did not know how the calf escaped his property, and that he did not learn of the calfs escape until his stepdaughter alerted him to it at approximately 10:00 p.m. Drumm’s stepdaughter had, in turn, just learned that the calf was loose when another relative, who lived on the same property, telephoned to relay that, approximately 30 to 45 minutes earlier, a neighbor had seen the calf loose next to the road. Drumm testified that he immediately left his home to look for the calf, at which point he came upon the accident.

Plaintiff and the Jamison defendants opposed the Farm’s motion, arguing that a question of fact existed regarding whether decedent’s death was a foreseeable consequence of the Farm’s negligence. Proof offered in opposition to the Farm’s motion, including testimony from Drumm’s deposition and the affidavit of a neighboring property owner, indicated that the fence surrounding the farm was in poor condition and that, on prior occasions, cows had escaped and wandered near and into the roadway, although Drumm asserted that the fence was intact at the time of the accident.

Supreme Court denied the Farm’s motion, holding that it could not conclude, as a matter of law, that decedent’s conduct in exiting her vehicle was sufficiently extraordinary and unforeseeable to break the chain of causation. Upon the Farm’s appeal, the Appellate Division—with one Justice dissenting— reversed, granted the Farm’s motion, and dismissed the complaint and cross claims as asserted against it (130 AD3d 1562 [4th Dept 2015]). The majority held that the Farm had established that its alleged negligence in allowing the calf to escape was not a proximate cause of decedent’s death, reasoning that the Farm’s negligence merely furnished the occasion for, but did not cause, decedent to enter the roadway, where she was struck by the Jamison vehicle.

The Jamison defendants sought leave to appeal the dismissal of their cross claims against the Farm; plaintiff did not move for leave to appeal. We granted the Jamison defendants leave to appeal (26 NY3d 910 [2015]), and we now reverse.

I—I h—H

It is well settled that [e]vidence of negligence is not enough by itself to establish liability,” for it also must be proved that the negligence was a proximate, or legal, cause of the event that produced the harm sustained by the plaintiff (Sheehan v City of New York, 40 NY2d 496, 501 [1976]). We have previously observed that “[t]he concept of proximate cause . . . has proven to be an elusive one, incapable of being precisely defined to cover all situations” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 314 [1980]). This is because the determination of proximate cause involves, among other things, policy-laden considerations; that is, the chain of causation must have an endpoint in order “to place manageable limits upon the liability that flows from negligent conduct” (id.; see Sewar v Gagliardi Bros. Serv., 51 NY2d 752, 759 [1980, Fuchsberg, J., concurring]; Ventricelli v Kinney Sys. Rent A Car, 45 NY2d 950, 952 [1978], mod 46 NY2d 770 [1978]).

The overarching principle governing determinations of proximate cause is that a “defendant’s negligence qualifies as a proximate cause where it is ‘a substantial cause of the events which produced the injury’ ” (Mazella v Beals, 27 NY3d 694, 706 [2016], quoting Derdiarian, 51 NY2d at 315). Topically, the question of whether a particular act of negligence is a substantial cause of the plaintiff’s injuries is one to be made by the factfinder, as such a determination turns upon questions of foreseeability and “ ‘what is foreseeable and what is normal may be the subject of varying inferences’ ” (Kriz v Schum, 75 NY2d 25, 34 [1989], quoting Derdiarian, 51 NY2d at 315; see Voss v Netherlands Ins. Co., 22 NY3d 728, 737 [2014]).

When a question of proximate cause involves an intervening act, “ ‘liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence’ ” (Mazella, 27 NY3d at 706 [emphasis added], quoting Derdiarian, 51 NY2d at 315). Thus, “[w]here the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury, the causal connection is not automatically severed” (Derdiarian, 51 NY2d at 315). Rather, “[t]he mere fact that other persons share some responsibility for plaintiff’s harm does not absolve defendant from liability because ‘there may be more than one proximate cause of an injury’ ” (Mazella, 27 NY3d at 706, quoting Argentina v Emery World Wide Delivery Corp., 93 NY2d 554, 560 n 2 [1999]). It is “[o]nly where ‘the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct,’ [that it] may . . . possibly ‘break[ ] the causal nexus’ ” (Mazella, 27 NY3d at 706, quoting Derdiarian, 51 NY2d at 315; see Kush v City of Buffalo, 59 NY2d 26, 33 [1983]). To state the inverse of this rule, liability subsists “[w]hen . . . the intervening act is a natural and foreseeable consequence of a circumstance created by defendant” (Kush, 59 NY2d at 33; Lynch v Bay Ridge Obstetrical & Gynecological Assoc., 72 NY2d 632, 636 [1988]).

Although foreseeability and proximate cause are generally questions for the factfinder, there are instances in which proximate cause can be determined as a matter of law because “only one conclusion may be drawn from the established facts” (Derdiarian, 51 NY2d at 315; see Ventricelli, 45 NY2d at 952). Such cases may arise when the plaintiff’s injuries are caused by “independent intervening acts which operate upon but do not flow from the original negligence” (Derdiarian, 51 NY2d at 315 [emphasis added]; see Campbell v Central N.Y. Regional Transp. Auth., 7 NY3d 819, 821 [2006]). Stated differently, proximate cause will be found lacking where the original negligent act merely “furnished the occasion for”—but did not cause—“an unrelated act to cause injuries not ordinarily anticipated” (Derdiarian, 51 NY2d at 316).

While the foregoing rules may be easily stated, they are not so handily applied. The line between those intervening acts which sever the chain of causation and those which do not cannot be drawn with precision. Proximate cause is, at its core, a uniquely fact-specific determination (see O’Neill v City of Port Jervis, 253 NY 423, 433 [1930]), and “[depending upon the nature of the case, a variety of factors may be relevant in assessing legal cause” (Derdiarian, 51 NY2d at 314-315). Such factors include, among other things: the foreseeability of the event resulting in injury; the passage of time between the originally negligent act and the intervening act; the spatial gap, if any, between the original act and the intervening act; whether the original act of negligence was a completed occurrence or was ongoing at the time of the intervening act; whether and, if so, what other forces combined to bring about the harm; as well as public policy considerations regarding the scope of liability (see Williams v State of New York, 18 NY3d 981, 984 [2012]; Derdiarian, 51 NY2d at 314; Martinez v Lazaroff, 48 NY2d 819, 820 [1979], affg 66 AD2d 874, 875 [2d Dept 1978]; 1A NY PJI3d 2:70 at 412-414 [2016]). The relevance of each factor will vary depending upon the factual circumstances presented, but the most significant inquiry in the proximate cause analysis is often that of foreseeability. Thus, where the risk of harm created by a defendant’s conduct corresponds to that which actually results—absent an extraordinary intervening act or significant facts weighing in favor of attenuation—it cannot be said, as a matter of law, that a defendant’s negligence merely furnished the occasion for the harm (see Mazella, 27 NY3d at 706; Kush, 59 NY2d at 33; Derdiarian, 51 NY2d at 315). Under such circumstances, the determination of proximate cause is best left for the factfinder.

A review of our case law highlights the distinction between instances where proximate cause is a question for the jury and the rare cases in which it can be determined, as a matter of law, that a defendant’s negligence merely created the opportunity for, but did not cause, the event that resulted in harm. For example, in Derdiarian v Felix Contr. Corp., a driver careened into an excavation site that was poorly barricaded, and struck the plaintiff, a construction worker (see 51 NY2d at 312). The plaintiff was injured both by the vehicle and by boiling enamel that splattered from a nearby kettle (see id,.). We held that the question of whether the contractor defendant’s alleged negligence in failing to provide an adequate safety barrier was a proximate cause of the plaintiff’s injuries was properly left to the jury (see id. at 316). We explained that the hazard associated with the original allegedly negligent act— the provision of an insufficient safety barrier—was the risk that a driver would negligently enter the work site, and that “[a]n intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent” (id. [emphasis added]). With regard to the injuries caused by the boiling enamel, we also observed that the mere fact that the defendant contractor could not anticipate the precise manner of the accident or the exact nature of injuries did “not preclude liability as a matter of law where the general risk and character of injuries are foreseeable” (id. at 317 [emphasis added]; see Mazella, 27 NY3d at 706-709).

By contrast, in Ventricelli v Kinney Sys. Rent A Car, we held that proximate cause was lacking, as a matter of law, because the defendant automobile lessor’s negligence merely furnished the occasion for the injury (45 NY2d at 952). There, the plaintiff leased a vehicle with a defective trunk lid and, when the trunk opened, the plaintiff pulled off the road into a curbside parking space, where he was subsequently injured by the negligent driving of a third party. We held that the collision between the two vehicles—both of which were safely and legally parked for a brief interval before the accident—was unforeseeable as a matter of law, emphasizing that the plaintiff was standing in a parking space, not an actively traveled road, and “[h]e might well have been there independent of any negligence of [the lessor], as, for example, if he were loading or unloading the trunk” (id. at 952). That is, although the original negligence “undoubtedly served to place the injured party at the site of the accident, the intervening act was divorced from and not the foreseeable risk associated with the original negligence” (Derdiarian, 51 NY2d at 315-316).

Cases holding that intervening acts break the chain of causation, as a matter of law, have one of two distinguishing features (see Mazella, 27 NY3d at 706). In some, the risk created by the original negligence was not the risk that materialized into harm; in other words, the intervening act was unforeseeable (see e.g. Campbell, 7 NY3d at 820-821 [defendant bus driver who hit wheelchair-bound plaintiff did not proximately cause the plaintiff’s injuries that subsequently resulted from his use of a defective replacement wheelchair]; Martinez, 48 NY2d at 820 [risk created by landlord’s failure to supply hot water did not correspond to injuries suffered]). In other cases, even if there was some similarity between the risk created and the actual harm, the defendant’s acts of negligence had ceased, and merely fortuitously placed the plaintiff in a location or position in which a secondary and separate instance of negligence acted independently upon the plaintiff to produce harm; the defendant’s actions did not “put in motion” or significantly contribute to “the agency by which the injuries were inflicted” (1A NY PJI3d 2:70 at 412 [2016]; see e.g. Gerrity v Muthana, 7 NY3d 834, 835-836 [2006]). Thus, proximate cause has been found lacking, as a matter of law, where a defendant negligently caused a vehicular accident, but the first accident was completed and the plaintiff was in a position of safety when a secondary accident occurred (see Gralton v Oliver, 302 NY 864, 865 [1951], affg 277 App Div 449 [3d Dept 1950]). Conversely, a question of fact is presented for the jury where a driver’s negligence contemporaneously causes another accident or where, due to a defendant’s negligence, the plaintiff is left in a position susceptible to further harm (see e.g. Tutrani v County of Suffolk, 10 NY3d 906, 907 [2008]; McMorrow v Trimper, 74 NY2d 830 [1989], affg 149 AD2d 971 [4th Dept 1989]; see also Commisso v Meeker, 8 NY2d 109, 117 [1960]).

HH I—I HH

Turning to the appeal at hand, the Farm concedes that the danger presented to motorists by a wandering farm animal is foreseeable insofar as a motorist’s vehicle may collide directly with the animal (see Hastings v Sauve, 21 NY3d 122 [2013]). The Farm contends, however, that because decedent pulled her vehicle to the side of the road without striking the calf, and then made the independent and purportedly extraordinary decision to leave the safety of her vehicle, the calf s presence in the roadway and the Farm’s negligence in relation thereto did not proximately cause decedent’s death. Rather, the Farm maintains that its negligence merely furnished the occasion for decedent to be standing or walking in the roadway when she was struck.

In response, the Jamison defendants and plaintiff argue that decedent’s actions in exiting her vehicle were reasonably foreseeable in light of the danger presented to herself, and to other drivers, by the calf wandering in the roadway. Because decedent’s actions were foreseeable, and the Farm’s negligence in allowing the calf to wander was ongoing, the Jamison defendants and plaintiff contend that the causal connection was not severed, and that the question of proximate cause is one for the factfinder. We agree.

Neither of the circumstances described above, in which proximaté cause may be deemed absent as a matter of law based on an intervening act, are present here. The very same risk that rendered negligent the Farm’s alleged failure to restrain or retrieve its farm animal—namely, that the wandering calf would enter a roadway and cause a collision—was, in fact, the risk that came to fruition (see Derdiarian, 51 NY2d at 316; compare Campbell, 7 NY3d at 820-821). That the Farm could not predict the exact manner in which the calf would cause injury to a motorist does not preclude liability because the general risk and character of injuries was foreseeable (see Derdiarian, 51 NY2d at 317). Furthermore, although decedent had apparently stopped her vehicle without striking the calf, the animal was still loose in the roadway and, under the circumstances, the danger and risk of an accident had not yet passed. The Farm’s alleged negligence—i.e., its failure to securely restrain and/or retrieve its wandering calf—was not a completed occurrence that merely fortuitously placed decedent in a relatively safe position or location where an independent and unrelated act of negligence operated to bring about her death (see Tutrani, 10 NY3d at 907; compare Gralton, 302 NY at 865). Thus, we cannot say, as a matter of law, that the Farm’s negligence merely furnished the occasion for the collision or that the accident resulting in decedent’s death did not flow from the Farm’s negligent conduct in permitting its calf to stray.

A factfinder could reasonably conclude that decedent’s actions in exiting her vehicle and entering the roadway were an entirely “ ‘normal or foreseeable consequence of the situation created by the defendant’s negligence’ ” (Mazella, 27 NY3d at 706, quoting Derdiarian, 51 NY2d at 315). In Hastings v Sauve, we held that a property owner may be liable under ordinary principles of tort law when he or she, through negligent acts or omissions, allows a farm animal—specifically, a domestic animal as defined in Agriculture and Markets Law § 108 (7)—to stray from the property on which the animal is kept (see 21 NY3d at 125-126). In Hastings, the plaintiff sustained injuries when her vehicle struck a cow that had wandered onto a public road (see id. at 124). Although we did not address the issue of proximate cause directly, an obvious assumption underlying our decision was the accepted premise that farm animals wandering unrestrained near roadways present a reasonably foreseeable danger to motorists due to their potential to interfere with traffic. As particularly relevant here, a wandering farm animal may be large enough to obstruct a roadway and, regardless of size, may impede traffic to a significant degree. Such an animal may cause substantial harm if struck by a vehicle or when a driver acts to avoid impact. In addition, a factfinder may determine that a person, under the particular circumstances of a case, may reasonably consider it safe to approach the wandering animal. Thus, a jury could reasonably conclude that it is foreseeable that a motorist who encounters such an animal on a rural roadway would attempt to remove the animal from the thoroughfare. Such conduct cannot, as a matter of law, be considered so “extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct,” that it breaks the chain of causation (Derdiarian, 51 NY2d at 315). Thus, on this record, the Farm has failed to meet its burden of demonstrating the absence of material issues of fact, and proximate cause is a question for the factfinder.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and defendant Drumm Family Farm, Inc.’s motion for summary judgment dismissing the Jamison defendants’ claims against it should be denied.

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Fahey and Garcia concur.

Order, insofar as appealed from, reversed, with costs, and defendant Drumm Family Farm, Inc.’s motion for summary judgment dismissing the Jamison defendants’ claims against it denied.

      . The other Jamison defendant was the owner of the vehicle.

      . Although the Appellate Division order is nonfinal because the action remains pending as between plaintiff and the Jamison defendants, we elected to treat the Appellate Division order as final with respect to the Farm under the doctrine of party finality (see Arthur Karger, Powers of the New York Court of Appeals § 5:9 at 128-133 [3d ed rev 2005]).

      . Our review of the Appellate Division order is “limited to those parts of the judgment that have been appealed and that aggrieve the appealing party,” and we generally may not grant affirmative relief to a nonappealing party (Hecht v City of New York, 60 NY2d 57, 61 [1983]; see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151 [2002]). Inasmuch as plaintiff did not seek leave to appeal to this Court, we may not, on this appeal, reinstate the complaint as asserted by non-appellant plaintiff against the Farm.


text:
    [68 NE3d 1228, 46 NYS3d 497]
    The People of the State of New York, Respondent, v Immanuel Flowers, Appellant.
    Argued November 15, 2016;
    decided December 22, 2016

      POINTS OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, New York City (Lawrence T. Hausman of counsel), for appellant.

      Eric Gonzalez, Acting District Attorney, Brooklyn (Avshalom Yotam, Leonard Joblove and Victor Barall of counsel), for respondent.
   OPINION OF THE COURT

Garcia, J.

In this case, defendant Immanuel Flowers argues that the trial court erred by reimposing an identical sentence following his successful appeal. We disagree and hold, in the context of defendant’s ineffective assistance claim, that defense counsel’s failure to challenge defendant’s resentencing did not render her performance constitutionally deficient.

Defendant was arrested in connection with a shooting. He was later charged with eight counts: attempted murder, four counts of assault, and three counts of criminal possession of a weapon. At trial, eyewitnesses testified that defendant and another individual were wrestling with a gun and, although none of the witnesses observed the shooting, gunshots were heard and defendant was seen running from the scene, tossing the gun, and fleeing in a car. The other individual, who did not testify at trial, sustained a gunshot wound to the leg.

At the close of the People’s case, defendant moved to dismiss the charges. The trial court denied the motion with respect to the three weapon possession counts, but granted it with respect to the attempted murder and four assault counts based on a lack of prima facie proof of intent to cause death or physical injury. Specifically, the court held that the People had presented sufficient evidence “that the defendant had a gun and that the defendant’s gun was the one that fired the shots that resulted in the injury to the complainant,” but that there was “no evidence at all . . . regarding the intent of the defendant.” The trial court ultimately submitted one count to the jury: criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). The jury convicted defendant.

Defendant was sentenced, as a persistent violent felony offender, to 20 years to life in prison. In imposing the sentence, the court noted that, because of his “substantial criminal record of violence,” defendant had “a very poor prognosis as far as his ability to function in the community.” The court also noted “the impact” that the crime “had on the victim,” as the case “involved a shooting in which the victim was shot in the leg.”

On appeal, the Appellate Division modified the judgment “as a matter of discretion in the interest of justice” by vacating defendant’s sentence and remitting for resentencing (People v Flowers, 97 AD3d 693 [2d Dept 2012]). The Court held, among other things, that “the remarks of the sentencing court demonstrated that it improperly considered a crime that was dismissed at trial for lack of legally sufficient evidence as a basis for sentencing” (id. at 693).

Defendant later appeared for resentencing before the same judge who imposed his original sentence. Defense counsel argued that defendant’s prior record did “not justify an upward departure from th[e] minimum.” Counsel also provided the court with a copy of defendant’s prison records which, counsel argued, demonstrated “improved behavior.” The People argued that the original sentence imposed by the court—20 years to life—should stand.

Supreme Court again sentenced defendant to an indeterminate term of 20 years to life. The court noted that defendant “had three prior felony convictions” as well as a prior parole violation, and that the probation report characterized defendant as “a significant risk to the safety of the community.” With respect to the trial evidence, the court stated that “defendant was seen throwing a gun away after that gun had been fired,” and that “[t]he evidence established that the gun had two spent shell casings and that there were numerous other rounds in the gun which could have been fired from [it].” Defense counsel did not object.

Defendant appealed, arguing that the court had again improperly considered the dismissed counts. Defendant also argued that his counsel had been ineffective for failing to object to the court’s imposition of the same term of imprisonment at his resentencing.

The Appellate Division unanimously affirmed (People v Flowers, 121 AD3d 1014 [2d Dept 2014]). The Court rejected “defendant’s contention that the resentence imposed was improperly based on counts which were dismissed at trial for lack of legally sufficient evidence” as both unpreserved and without merit (id. at 1014). With regard to defendant’s ineffective assistance claim, the Court held that “defense counsel’s failure to register an objection to this claimed error at resentencing did not constitute ineffective assistance of counsel, as defense counsel could not have been ineffective for failing to advance an argument that had no chance of success” (id.).

A Judge of this Court granted defendant’s application for leave to appeal (25 NY3d 1072 [2015]). We affirm.

On appeal, defendant claims that, by failing to impose a lesser sentence than it originally imposed, the resentencing court necessarily considered improper criteria—namely, the dismissed charges. While defendant concedes that this claim is unpreserved, he contends that it should be treated as a mode of proceedings error exempted from the preservation rule. Defendant also contends that he was denied effective assistance of counsel because his attorney failed to raise an objection at resentencing.

Initially, we reject defendant’s contention that the court’s reimposition of the same sentence amounts to a mode of proceedings error such that preservation was not required; the alleged error does not fall within this “narrow exception” to the preservation rule that is “reserved for the most fundamental flaws” (People v Becoats, 17 NY3d 643, 650-651 [2011]). Nor did the court “exceed [ ] its powers and impose [ ] a sentence that is illegal in a respect that is readily discernable from the trial record” (People v Nieves, 2 NY3d 310, 315 [2004]). Defendant was therefore required to preserve his argument at resentenc-ing in order to raise it on appeal and, because he failed to do so, his claim is unreviewable (CPL 470.05 [2]).

Defendant’s ineffective assistance claim is premised upon this single alleged error—counsel’s failure to object at resen-tencing. In the “rare” case, “a single failing in an otherwise competent performance” may be “so egregious and prejudicial as to deprive a defendant of his constitutional right” to a fair trial (People v Turner, 5 NY3d 476, 480 [2005] [citations and internal quotation marks omitted]). To rise to that level, the alleged error must “involve an issue that is so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it, and it must be evident that the decision to forgo the contention could not have been grounded in a legitimate trial strategy” (People v Keschner, 25 NY3d 704, 723 [2015]). Counsel will not be deemed ineffective for failing to pursue an argument that has “little or no chance of success” (People v Caban, 5 NY3d 143, 152 [2005] [citation and internal quotation marks omitted]). Defendant’s ineffective assistance claim must therefore be rejected if “it is clear to the Court that the objection or contention that was omitted would not have been a ‘winning argument’ ” (Keschner, 25 NY3d at 723).

Defendant’s claim concerning his resentencing is not a winning argument. Defendant first contends that the court’s failure to reduce his sentence raised a presumption that the court relied on improper criteria. Invoking North Carolina v Pearce (395 US 711 [1969]) and People v Van Pelt (76 NY2d 156 [1990])—cases establishing a presumption of vindictiveness where a defendant’s sentence is increased following a successful appeal—defendant claims that a presumption should similarly apply where, absent new bad facts, the court reimposes the same term of imprisonment at a post-appeal resentencing.

Irrespective of its ultimate merit, this argument would require a novel and unprecedented statement of law; we have never applied a presumption that a sentencing court “relied on improper criteria” where, as here, the court imposed an identical—but not greater—sentence following an appeal. Counsel can hardly be deemed ineffective for failing to pursue such an uncertain claim (People v Feliciano, 17 NY3d 14, 28 [2011]), particularly where the Appellate Division unanimously determined that it “had no chance of success” (121 AD3d at 1014).

In any event, the presumption of vindictiveness applies only to “defendants who have won appellate reversals” who are “given greater sentences . . . than were imposed after their initial convictions” (People v Young, 94 NY2d 171, 176 [1999] [emphasis added]). The presumption is inapplicable where, as here, the same term of imprisonment is imposed upon resen-tencing.

Defendant’s argument to the contrary is grounded in a fundamental misapprehension of the nature of sentencing determinations. Contrary to defendant’s claim, the sentencing court’s reimposition of an identical sentence does not indicate that it “disregard [ed] a binding appellate determination” or that it necessarily relied on improper criteria. Rather, a resentencing court is entitled, on remittal, to perform a fresh sentencing calculation designed to “achieve its over-all sentencing goal” (Young, 94 NY2d at 180); the original sentence does not somehow assign “permanent” weight to any sentencing factor. Sentencing courts—and resentencing courts—must be given sufficient latitude to determine the relevant factors to be considered as well as the relevant weight to assign each factor. Accordingly, even after a sentencing court disregards factors that were improperly considered, a reduction is not required so long as the remaining factors continue to justify the previously-imposed sentence. Given “the State’s interest in preserving the flexibility and discretion of sentencing courts” (Van Pelt, 76 NY2d at 162-163), a presumption is unwarranted under these circumstances.

Even in the absence of a presumption, a defendant may still obtain relief by demonstrating actual vindictiveness or continued reliance on improper criteria at resentencing (Texas v McCullough, 475 US 134, 138 [1986]). On this record, however, no such retaliatory conduct is apparent, nor is there any indication that the resentencing court improperly relied on dismissed charges. The facts considered by the court at resentencing were not improper insofar as they were not facts “exclusive to” the dismissed offenses (People v Horne, 97 NY2d 404, 413 [2002]). Rather, the evidence that the court mentioned during resentencing was directly relevant to the crime of conviction—second-degree criminal possession of a weapon (Penal Law § 265.03). Moreover, the court’s earlier dismissal of the attempted murder and assault counts was based purely on its determination that the evidence was legally insufficient with regard to defendant’s intent; that holding cast no doubt on the sufficiency or reliability of the proof that defendant had fired the gun.

In this case, the resentencing court provided on-the-record, permissible, and wholly nonvindictive reasons substantiating defendant’s sentence. Those reasons included defendant’s three prior felony convictions, a prior parole violation, and a probation report characterizing defendant as “a significant risk to the safety of the community.” The record therefore does not evince actual reliance on improper factors, or the type of retaliatory, vindictive conduct that a prophylactic presumption is designed to protect against. Because defendant’s resentenc-ing claim fails on its merit, defense counsel cannot be deemed ineffective for declining to assert it.

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

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Order affirmed.


author: Stein, J. Rivera, J.

text:
    [68 NE3d 1242, 46 NYS3d 511]
    The People of the State of New York, Respondent, v Robert Patterson, Appellant.
    Argued November 15, 2016;
    decided December 22, 2016

      POINTS OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, New York City (Ellen Dille of counsel), for appellant.

      Parcel D. Clark, District Attorney, Bronx {Ryan P. Mansell, Marianne Stracquadanio and Nancy Killian of counsel), for respondent.
   OPINION OF THE COURT

Stein, J.

In this appeal, we are asked to determine whether the Appellate Division properly upheld the admission of subscriber information in prepaid cell phone records as nonhearsay evidence located within a business record. Because the subscriber information was not introduced for the truth of the matters asserted therein, the courts below properly determined that it was independently admissible.

L

Defendant was convicted, after a jury trial, of second-degree burglary and robbery. The charges arose out of an incident in which defendant and another man entered the victim’s bedroom wearing bandanas and carrying pistols after defendant’s accomplice, Daichele Goree—who went to the victim’s apartment by invitation—received a series of cell phone calls while she was there. The victim testified that he could see defendant’s forehead, eyebrows, the bridge of his nose, his nostrils and the top of his ears. The men directed the victim to get on the ground, taped his wrists, mouth and ankles, and took the victim’s cash and various items of personal property. The victim freed himself and called 911, but he was unable to give the 911 operator a description of the men apart from stating that they were black, wore bandanas and carried guns.

When police arrived shortly thereafter, the victim gave Goree’s phone number to a detective, and provided a very general description of the robbers as young black men, about six feet tall, with red bandanas up to their noses. The detective subpoenaed Goree’s phone records and discovered that one of three numbers called during the time frame of the incident was connected to a Sprint/Nextel account registered to a “Darnell Patterson,” with an address and date of birth that were associated with defendant in police databases. The victim subsequently identified defendant in a lineup as one of the assailants and defendant was arrested; the date of birth that he provided to police upon his arrest was the same as that set forth in the Sprint subscriber information.

Prior to trial, defendant moved to preclude the People from offering into evidence the subscriber information portion of the Sprint records, arguing that it constituted hearsay within hearsay. Defendant conceded that the log of the phone calls was admissible under the business records exception, but argued that the subscriber information was not admissible pursuant to that exception because the subscriber who initially provided the information had no duty to report it accurately. Because the records stated on their face that they could be inaccurate or incomplete, defendant argued that they should be precluded. The People conceded that the subscriber information did not prove that the person who registered the phone was Darnell Patterson or that defendant was in the room when the robbery took place, but maintained that the evidence was admissible for two limited purposes: to complete the narrative; and to show that the phone number that Goree called around the time of the robbery had been registered by someone using the name Darnell Patterson, with defendant’s address and birth date.

Supreme Court concluded that the subscriber information was not admissible merely for the purpose of “complet[ing] the narrative,” given that the People sought to argue that the information corroborated the victim’s eyewitness identification of defendant. However, the court ruled that it would admit the subscriber information as a “business record! ]” through a Sprint representative’s testimony that it was Sprint’s regular course of business to make and keep these records, but that Sprint did not verify the information and, therefore, “disclaimed] any reliability.” The court recognized that, because the subscriber had no business duty to provide accurate information, the business records exception to the hearsay rule did not apply, but concluded that the subscriber history was admissible “for the purpose of showing that this is the information that was given, the fact that [the] information was given at a time that well preceded the crime itself.” That is, the court determined that the subscriber information was admissible, not for the truth of the matters asserted therein, but for the nonhearsay purpose of showing that this particular cell phone was activated by someone who supplied identifying information linked to defendant, thereby providing corroborating evidence for the victim’s identification of defendant in a lineup.

At trial, defendant repeated his objections to the Sprint cell phone records and also argued that the subscriber information on Goree’s T-Mobile cell phone records should not be received in evidence. The court overruled the objections. As relevant here, representatives of both Sprint and T-Mobile testified that the records containing subscriber information for prepaid phones are made at the time the subscriber activates the phone, the call logs are recorded or cataloged at or around the time the calls are made, and the person recording all of the information contained in the records has a business duty to record it fairly, accurately and completely, but the subscriber information is not verified. The Sprint representative also testified that, shortly before and after the time of the robbery, the Sprint number in question received eight calls from Goree’s number and made three calls to that number.

In addition, there was evidence that, on the night of the robbery, the Sprint number dialed or received calls from five other numbers. A New York City Department of Corrections investigator thereafter testified that, during defendant’s incarceration while awaiting trial on the instant charges, he called those same five numbers 1,371 times, 48 times, 31 times, 58 times and 103 times, respectively. The investigator also testified that the date of birth associated with defendant’s Department of Corrections identification number was the same as that included in the Sprint subscriber information.

The jury acquitted defendant of first-degree robbery and burglary, and grand larceny, but convicted him of second-degree robbery and burglary. On defendant’s appeal, the Appellate Division affirmed, concluding that the subscriber information— which it called “pedigree information”—“did not constitute assertions of fact” but was “properly admitted as circumstantial evidence of defendant’s identity as the purchaser of the phone,” i.e., “that the declarant was, in all likelihood, defendant” (128 AD3d 424, 425 [1st Dept 2015]). The Court explained that, “[although the purchaser of the phone was not under a business duty to provide the pedigree information, that requirement of the business records exception to the hearsay rule did not apply, because the initial declaration was independently admissible” (id. at 425).

A Judge of this Court granted defendant leave to appeal (25 NY3d 1205 [2015]).

IL

As a threshold matter, we reject defendant’s argument that the Appellate Division exceeded its authority under CPL 470.15 (1), which “bars that court from affirming a judgment, sentence or order on a ground not decided adversely to the [defendant] by the trial court” (People v Concepcion, 17 NY3d 192, 195 [2011]; see People v LaFontaine, 92 NY2d 470, 474 [1998]). Recently, in People v Nicholson (26 NY3d 813 [2016]), this Court cautioned against “a flawed and overly narrow construction of the statutory limits of 470.15 (1) as applied to the Appellate Division’s review of the trial court’s evidentiary ruling [s]” (id. at 825), particularly where the “Appellate Division [does not] render [ ] a decision on grounds explicitly different from those of the trial court, or on grounds that were clearly resolved in a defendant’s favor—the type of appellate overreaching prohibited by CPL 470.15 (1)—[but affirms an] evidentiary ruling on the ground relied on by the trial court” (id. at 825-826 [citation omitted]). We conclude that, contrary to defendant’s contention, the Appellate Division did not rule that the subscriber information was admissible based upon a ground that was different from that on which the trial court relied. Rather, both courts ultimately concluded that the' subscriber information was not hearsay because it was not “ ‘offered for the truth of the fact[s] asserted in the statement’ ” (People v Goldstein, 6 NY3d 119, 127 [2005], cert denied 547 US 1159 [2006], quoting People v Romero, 78 NY2d 355, 361 [1991]) and, thus, the evidence was independently admissible. Under these circumstances, the Appellate Division did not exceed its authority under section 470.15 (1) and there is no LaFontaine/Concepcion bar to our review.

H—I HH HH

Turning to the merits, we agree with the courts below that the subscriber information was properly admitted for a nonhearsay purpose other than simply completing the narrative. Therefore, defendant’s argument that the information would not be admissible under the business records exception—while technically correct because the subscriber was not under a duty to report his or her “pedigree” information correctly when activating the prepaid cell phone accounts—is misplaced.

CPLR 4518 (a) sets forth the business records exception to the hearsay rule:

“Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.”

More than 85 years ago, in Johnson v Lutz (253 NY 124 [1930]), this Court imposed an additional requirement for admissibility that is not set forth in the statute—specifically, that “[u]nless some other hearsay exception is available . . . , admission may only be granted where it is demonstrated that the informant has personal knowledge of the act, event or condition and he [or she] is under a business duty to report it to the entrant” (Matter of Leon RR, 48 NY2d 117, 123 [1979]; see Cover v Cohen, 61 NY2d 261, 274 [1984]; Johnson v Lutz, 253 NY 124, 127-128 [1930]; see also Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C4518:l; Jerome Prince, Richardson on Evidence § 8-307 [Farrell 11th ed 1995]).

Pursuant to this rule, “[i]f the informant was not under a business duty to impart the information, but the entrant was under a business duty to obtain and record the statement, the entry is admissible to establish merely that the statement was made . . . [but] another hearsay exception is necessary in order to receive the statement for its truth” (Hayes v State of New York, 50 AD2d 693, 693-694 [1975] [emphasis added], affd on op below 40 NY2d 1044 [1976]). That is, although the contents of the statements in a record are not admissible for the truth of the matters asserted therein under the business records exception to the hearsay rule when the informant was not acting pursuant to a business duty to report, “the contents of the record [nevertheless] may be used for a nonhearsay purpose” (Jerome Prince, Richardson on Evidence § 8-307 at 606 [Farrell 11th ed 1995]; see Splawn v Lextaj Corp., 197 AD2d 479, 480 [1st Dept 1993], lv denied 83 NY2d 753 [1994] [hotel logbook entries reporting burglaries not admissible to prove the crimes occurred but permitted to show hotel had notice of activity]; People v Blanchard, 177 AD2d 854, 855 [3d Dept 1991], lv denied 79 NY2d 918 [1992] [police blotter entry showing phone call made by someone purporting to be defendant’s father properly received not for its truth, but to impeach father, who testified that he did not make the call]; Donohue v Losito, 141 AD2d 691, 691-692 [2d Dept 1988], lv denied 72 NY2d 810 [1988] [portion of police report indicating trial witness stated that defendant had punched plaintiff in the face not admissible for its truth under CPLR 4518, but admissible to impeach witness]; see also Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C4518:l).

Consistent with these principles, the United States Court of Appeals for the Second Circuit concluded in United States v Lieberman (637 F2d 95, 100-101 [2d Cir 1980]) that a hotel guest registration card was not admissible for its truth under the business records exception to the rule against hearsay contained in Federal Rules of Evidence rule 803 (6) because the hotel employee registering guests did not verify the guests’ identity. Nevertheless, that court concluded that the registration card was “admissible as non-hearsay, simply to show that someone calling himself” the same name as a man who happened to be arrested by DEA agents while loading 46 cartons of marihuana into a van belonging to the defendant’s moving company “registered in the hotel” (id. at 101). The registration card provided “a foundation for further evidence that from [the individual’s] room a call was made to [defendant’s] unpublished telephone number” (id.). The defendant in Lieberman was ultimately convicted of crimes involving conspiracy to distribute marihuana. “To provide evidence that the jury should infer that” the person calling defendant was the same individual who was arrested, “the government presented the testimony of the arresting . . . agent [that] . . . the address he had read on the driver’s license carried by [the individual] . . . was the same as that written on the hotel registration card” {id.). The Second Circuit concluded that “it was proper to receive the hotel registration card for the limited non-hearsay purpose, with other evidence admitted from which the jury could infer that the hotel card spoke the truth” (id.; see United States v Bell, 833 F2d 272, 276 [11th Cir 1987], cert denied 486 US 1013 [1988] [hotel card admissible for nonhearsay purpose of showing someone using defendant’s name and address registered at inn]; Commonwealth v Siny Van Tran, 460 Mass 535, 550-551, 953 NE2d 139, 155-156 [2011] [airline passenger manifest and ticket inquiry admissible for nonhearsay “purpose of showing that the statements were made by someone, even, perhaps, a person being untruthful, who held (himself or herself) out to be” the defendant]).

IV.

Similarly here, the subscriber information was not hearsay, although it was contained within business records, because it was not admitted to prove the truth of the matters asserted therein. That is, the subscriber information was not offered to prove that “Darnell Patterson” and Goree were the subscribers of the cell phone accounts used at the time of the robbery, or that “Darnell” had a particular date of birth that matched that of defendant and lived at a particular address that was associated with defendant. Indeed, it was simply irrevelant whether that information was true or false and the cell phone company representatives testified that the evidence was not verifiable. Rather, as in Lieberman, the information was admitted for the limited purpose of showing that the individuals who activated the cell phone numbers identified themselves as Darnell Patterson and Goree, and that “Darnell Patterson” gave certain pedigree information that was otherwise associated with defendant.

In other words, the purpose of the subscriber information was not to prove that “Darnell Patterson,” or even defendant, had activated the prepaid Sprint account, but to show that the account had some connection to defendant—regardless of how tenuous—because such a connection would be helpful to the jury in assessing the reliability of the victim’s identification of defendant as the perpetrator. The evidence was ultimately relevant to the People’s argument to the jury that it was not coincidental that someone—regardless of who—provided pedigree information associated with defendant in activating the cell phone. Under the circumstances of this case, the subscriber information was not admitted for its truth, but for the jury to consider as a piece of the puzzle—along with evidence that the prepaid Sprint account called the same numbers that defendant did in prison, that the date of birth given by defendant when arrested matched that in the subscriber information, that the address given in the subscriber information was associated with defendant in police databases, and that defendant had the name Darnell tattooed on his hand—that gave rise to an inference that defendant was the user of the phone, although perhaps not the subscriber, a subtle but critical distinction for purposes of the evidentiary issue before us.

We, therefore, conclude that the subscriber information was properly admitted for a limited, nonhearsay purpose. Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed.

Rivera, J.

(concurring). I agree with the majority that the Appellate Division should be affirmed, but on different grounds. Based on our existing case law, the subscriber information was admissible for the nonhearsay purpose of completing the narrative leading to defendant’s arrest. To the extent the court erroneously permitted use of the evidence beyond this limited purpose, the error was harmless. Therefore, I concur only in the result.

This Court has upheld the admission of evidence otherwise excludable for “the relevant, nonhearsay purpose of explaining the investigative process and completing the narrative of events leading to the defendant’s arrest” (People v Ludwig, 24 NY3d 221, 231 [2014]; People v Till, 87 NY2d 835, 837 [1995 mem] [permitting evidence of uncharged crimes to provide background explanation of “interwoven events,” as an exception to the Molinuex ban on such evidence]; see also People v Tosca, 98 NY2d 660, 661 [2002 mem] [nonhearsay background information about how and why police pursued and confronted defendant properly admitted with limiting instructions]). I continue to believe that this “completion of the narrative” rationale can be applied too expansively, such that it allows the introduction of inadmissible and overly-prejudicial evidence (see generally People v Morris, 21 NY3d 588, 600-601 [2013, Rivera, J., dissenting] [the limited “completing the narrative” exception should not apply to evidence of uncharged crimes absent ambiguity of material facts “or where the ambiguity can be addressed ‘by far less prejudicial means’ than the admission of the uncharged crimes evidence”]; Ludwig, 24 NY3d at 235 [Lippman, Ch. J., dissenting] [“The majority eviscerates the hearsay rule ... by countenancing the admission of prior consistent statements that provide a ‘narrative’ or ‘investigative purpose’ even where the investigative purpose is not in issue”]). Nevertheless, the exception applies to defendant’s case.

Here, the People argued, inter alia, that the primary purpose of admitting the subscriber information was to complete the narrative, and the trial testimony supports this argument. The People established at trial that the police obtained the number for the phone at issue by identifying which numbers Ms. Goree called during the robbery. From there, detectives obtained the subscriber information for that phone, and this information pointed them to Darnell Patterson. The detectives linked the name from the subscriber information to defendant, which then permitted the detectives to identify defendant as a suspect for the crime. As such, the subscriber information was admissible to explain the events leading to his arrest.

The majority opines, however, that this statement is a “piece of the puzzle” that the jury may use “in assessing the reliability of the victim’s [eyewitness] identification” and a basis for the inference the “defendant was the user of the phone” (majority op at 552-553). The majority concludes that this is an appropriate nonhearsay use for the statement, since it was introduced to show that the phone had some connection to the defendant and not that the phone belonged to Darnell Patterson (id. at 552). The majority essentially extends the narrative exception for the hearsay at issue here beyond an explanation of the police investigation and defendant’s capture, for the purpose of establishing that defendant was the user of the phone. Of course, if defendant was the user and not the subscriber, then the subscription evidence was irrevelant to establish—circumstantially and inferentially—defendant’s criminal conduct. On the facts of this case, the subscriber would be irrevelant if that person were not the defendant. Indeed, the prosecutor went to great lengths to connect defendant to the person listed as the subscriber. The People’s evidence established that the subscriber name was defendant’s known alias, the subscriber’s date of birth was defendant’s, and the subscriber’s address was the defendant’s. Moreover, the court admitted the defendant’s tattoo only because it matched the subscriber’s name.

In comparison, if the subscriber information is introduced to complete the narrative, the jury need not accept its content as true to properly consider the evidence. The subscriber information demonstrates how the police identified defendant as a suspect for the robbery and is a link in the chain for the jury to consider in assessing the entirety of the police investigation. Admission or use for any other purpose was error. However, given the facts of this case, including the eyewitness testimony of the victim and the matching phone records between the cell phone and defendant’s Rikers Island calls, any such error was harmless (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).

Chief Judge DiFiore and Judges Pigott, Abdus-Salaam, Fahey and Garcia concur; Judge Rivera concurs in result in a separate concurring opinion.

Order, insofar as appealed from, affirmed.

       CPLR 4518 (a) is applicable to criminal proceedings pursuant to CPL 60.10 (see People v Ortega, 15 NY3d 610, 617 [2010]; People v Kennedy, 68 NY2d 569, 575 [1986]).


author: Rivera, J.

text:
    [69 NE3d 604, 46 NYS3d 817]
    The People of the State of New York, Respondent, v Prince Clark, Appellant.
    Argued November 16, 2016;
    decided December 20, 2016

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (De Nice Powell of counsel), for appellant.

      Eric Gonzalez, Acting District Attorney, Brooklyn (Sholom J. Twersky and Leonard Joblove of counsel), for respondent.
   OPINION OF THE COURT

Rivera, J.

On defendant Prince Clark’s appeal challenging his conviction of murder in the second degree (Penal Law § 125.25 [1]) and assault in the second degree (Penal Law § 120.05 [2]), only defendant’s claim of ineffective assistance of counsel is properly before us. With respect to that challenge, we conclude defendant was not denied a fair trial when his attorney pursued a defense of misidentification in accordance with defendant’s assertion of innocence on all charges.

Defendant was convicted upon a jury verdict for the murder of Jamel Wisdom and assault with a deadly weapon of Gamard Talleyrand. According to the trial evidence, defendant was with his friend KM and his cousin and codefendant Michael Morrison, when Wisdom, Talleyrand, and several other men confronted defendant on the street, calling him names, and pushing and kicking him. During the attack KM heard defendant call out that someone had a knife and “they are going to cut me.” However, KM did not see a knife and no knife was ever recovered from the scene. After several minutes, defendant, followed by his attackers, headed towards his apartment building, located a short distance away.

The People admitted into evidence surveillance video of defendant’s building from the time of the attack as proof of defendant’s criminal liability. Talleyrand, despite knowing defendant, testified that he was unable to identify defendant in the video, but KM identified herself, Morrison, and defendant. The People argued, based in part on KM’s testimony, that defendant was the man depicted in the video, which captured the shooting of the victim in the lobby of defendant’s building. Accordingly, we refer to this man as defendant, acknowledging that defendant maintained at trial that he is not the person in the video.

The surveillance video depicts Morrison and defendant entering the building, walking up the stairs, and then returning to the lobby and exiting together a few minutes later. The two men can then be seen in front of the building where Morrison passes something to defendant, which the People maintained was a gun. Defendant then walked towards the group that had previously attacked him, exiting the camera frame. KM testified that she then heard gunshots, but did not see the shooter since she turned and began running away. Talleyrand testified that he saw Wisdom fall down and turned to see a man, who he claimed he could not identify, with a gun. He ran and was shot twice in the leg.

Video of the lobby shows that after Talleyrand was shot, defendant reentered the building, pursued by two men, one of whom was later identified as Wisdom. Once inside the building, Wisdom slammed defendant, who was holding a gun in his hand, up against the lobby wall. Defendant then momentarily freed himself and fired several close range shots at Wisdom. Defendant and Wisdom struggled for several seconds, during which they both fell to the floor. The man who had followed Wisdom into the building attacked defendant, but defendant eventually broke free and the two dispersed, leaving Wisdom motionless on the lobby floor. Police testified that approximately three weeks after the shooting, they apprehended defendant in Georgia.

The medical evidence established that Wisdom died as a result of six gunshot wounds. He was struck in the head, torso, and arm, and sustained an injury to his spinal cord. The People also admitted physical evidence of defendant’s and Morrison’s blood, along with Morrison’s DNA, on a sweatshirt found on the roof of a nearby building, as well as shell casings recovered from the building lobby and the street where Talleyrand was shot.

Defendant was charged with Wisdom’s murder, the attempted murder and assault of Talleyrand, and weapons possession. Codefendant Morrison was charged with assault, weapons possession, and criminal facilitation. Prior to jury selection, and without objection from defendant’s counsel, the court ordered the public to wait outside to create space in the courtroom for the prospective jurors. Soon thereafter, but prior to jury selection, Morrison accepted a plea, and defendant proceeded to trial alone (see People v Morrison, 104 AD3d 959, 959 [2013], lv denied 21 NY3d 1007 [2013]).

During the People’s case-in-chief, defense counsel informed the court that he believed the People’s evidence supported an extreme emotional disturbance (EED) affirmative defense, and that he had informed defendant that he could not proceed with such defense without defendant’s permission, to which defendant stated he “d [id] not wish to have [counsel] indicate in any manner, shape or form as far as justification or diminished capacity on the murder two.” Rather, defendant steadfastly maintained he was not the individual depicted in the incriminating video. On the record, the court then addressed defendant concerning his decision not to pursue an EED or justification defense.

“THE COURT: Have you had an adequate opportunity to discuss these various legal issues and tactical decisions with your attorney?
“THE DEFENDANT: Yes.
“THE COURT: And we’ve indicated now in open court that at least to the justification or self defense claim or the extreme emotional disturbance, both of which in essence say I did it but there was some reason I did it; either I was justified in doing it or I did it because of an extreme emotional disturbance and, therefore, my — says in essence I’m not guilty of murder, maybe guilty of manslaughter which carries — doesn’t carry a life term at the back of it as a murder conviction. Have you had a chance to discuss that?
“THE DEFENDANT: I did.
“THE COURT: And your attorney says that as a tactical decision which you’re entitled to make, that you don’t want to pursue those defenses in terms of justification and or extreme emotional disturbance, is that correct?
“THE DEFENDANT: That is correct. . . .
“THE COURT: You doing so voluntarily in full recognition of the potential consequences?
“THE DEFENDANT: I am not making any decision — I’m not making any decision referring to you reducing it to any manslaughter or anything like that cause this is not me.”

Counsel proceeded with a misidentification defense, in accordance with defendant’s claim of innocence. Further, counsel did not request, and the court did not charge, justification to the jury.

After the case was submitted, on the second day of deliberations, the jury sent a note inquiring: “[h]ow does the law differentiate ‘intent to kill’ from ‘intent to harm’?” and, “with respect to Mr. Wisdom [,] if he initiated the struggle and [defendant] was acting defensively, does that negate ‘intent to kin’?” jU(jge informed counsel and the prosecutor that he would instruct the jurors that justification and self-defense were not issues before them. Counsel urged the court to limit its instruction to whether defendant’s actions were intentional, and specifically objected to the court making “any reference to self defense” or “advising the jury that that issue was not before them and they’re not to rule on it.” The court responded to the note by informing the jurors that they had not been instructed on justification or self-defense, and so they were to focus on whether the People had proved beyond a reasonable doubt that defendant intended to cause Wisdom’s death.

The jury subsequently returned a guilty verdict on the second-degree murder, second-degree assault, and weapons possession counts, and acquitted defendant of the attempted murder of Talleyrand. Defendant appealed.

The Appellate Division affirmed in a split decision, concluding, as relevant here, that counsel was not ineffective either for failing to advance a justification defense that would have been inconsistent with defendant’s chosen theory of misidentification, or for failing to object to the courtroom closure given the prevailing law at the time (129 AD3d 1 [2d Dept 2015]). The dissent argued that issues of fact existed as to whether defendant acted in self-defense, that the court had an obligation to charge the jury with a justification defense (an issue it would have reached in the interest of justice), and that counsel was ineffective for failing to “exercise his own professional judgment as to matters of trial tactics and strategy throughout the course of the trial” (id. at 45 [Miller, J., dissenting]). A dissenting Justice granted defendant leave to appeal (25 NY3d 1174 [2015]).

Defendant now reasserts his claim that counsel was ineffective for pursuing a misidentification defense at defendant’s behest, rather than offering the inconsistent defense of justification, and because counsel failed to protect defendant’s right to a public trial. Under the circumstances of this case, we find defendant’s arguments unpersuasive.

The standards for assessing a defendant’s ineffective assistance of counsel claim are well settled. Under our State Constitution a defendant must establish that counsel failed to provide meaningful representation and thus deprived defendant of a fair trial (see People v Hobot, 84 NY2d 1021, 1022 [1995]). “In making that assessment, the court must view counsel’s performance in its totality” (People v Wragg, 26 NY3d 403, 409 [2015], citing People v Baldi, 54 NY2d 137, 147 [1981]). “Counsel’s performance should be objectively evaluated to determine whether it was consistent with strategic decisions of a reasonably competent attorney” (People v Benevento, 91 NY2d 708, 712 [1998] [internal quotation marks and citation omitted]). Defendant bears the ultimate burden of showing “counsel’s performance is constitutionally deficient” (Wragg, 26 NY3d at 409), as well as “the absence of strategic or other legitimate explanations” for counsel’s challenged actions (People v Rivera, 71 NY2d 705, 709 [1988]).

To satisfy the two-part federal test for ineffectiveness set forth in Strickland v Washington, a defendant must show “counsel’s representation fell below an objective standard of reasonableness . . . under prevailing professional norms” (466 US 668, 688 [1984]), and also “that the deficiency in performance prejudiced defendant” (Benevento, 91 NY2d at 713, citing People v Ford, 86 NY2d 397, 405 [1995]). “Strickland's prejudice prong is what chiefly separates it from” our state standard (People v Stultz, 2 NY3d 277, 283 [2004]). As this Court has ofttimes explained, “defendant need not fully satisfy the prejudice test of Strickland” as “[o]ur focus is on the fairness of the proceedings as a whole” (id. at 284).

The right to effective assistance includes defendant’s right to counsel’s beneficial exercise of professional skill and judgment as defendant’s advocate (Powell v Alabama, 287 US 45, 68-69 [1932]; see Strickland, 466 US at 688). Counsel’s role is to advise, manage the trial, and make tactical and strategic decisions related to the defense (see People v Colon, 90 NY2d 824, 826 [1997]; People v Ellis, 81 NY2d 854, 856-857 [1993]). However, defendant retains authority over such fundamental decisions as “whether to plead guilty, waive a jury trial, testify in [defendant’s] own behalf or take an appeal” (Colon, 90 NY2d at 825-826 [citations omitted]). This allocation of authority reflects the nature of the attorney-client relationship, in which defendant seeks out and relies on counsel’s professional judgment, and counsel, in turn, makes tactical decisions after weighing the relevant considerations and upon consultation with defendant (see Florida v Nixon, 543 US 175, 187 [2004]; People v Colville, 20 NY3d 20, 32 [2012]; ABA Standards for Criminal Justice, Defense Function, standard 4-5.2 [c] [4th ed 2015]).

Here, we cannot say that defendant received less than meaningful representation (Baldi, 54 NY2d at 147). Defendant concedes that he instructed counsel to pursue a misidentification defense, and he does not claim that counsel’s professional efforts in that regard were constitutionally deficient. Rather, defendant claims he was deprived of effective assistance when counsel failed to present a defense of justification. We disagree.

Each defense theory available to defendant posed its own challenges, and the choice of one, instead of the other, was not “determinative of the verdict” (People v Petrovich, 87 NY2d 961, 963 [1996]). We are not presented with a case in which defendant’s chosen defense theory was self-destructive and ensured conviction. Nor did the path taken by counsel undermine his ability to deploy professional skill and expertise in presenting the chosen defense. For the same reasons, counsel was not ineffective for objecting to any charge that would have presented justification to the jury as a response to the jury’s request for further instructions. Thus, we cannot say that counsel’s representation was constitutionally deficient at the time because he vigorously pursued the defense defendant approved rather than the one defendant rejected outright.

Notably, the misidentification theory had the potential to achieve defendant’s acquittal on all charges. In contrast, had counsel successfully pursued a justification defense, this would only have resulted in acquittal on the murder charge—not the assault of Talleyrand, who was shot as he ran away from the shooter. Therefore, counsel’s efforts to achieve defendant’s stated objective by solely advancing the misidentification defense “w[ere] consistent with strategic decisions of a reasonably competent attorney” (Benevento, 91 NY2d at 712 [internal quotation marks omitted]).

To the extent defendant argues that counsel was ineffective because he misinformed him of the consequences of pursuing a misidentification defense, resolution of that claim requires consideration of matters dehors the record and cannot be decided on this appeal (People v Cass, 18 NY3d 553, 556 [2012]). Further, if, as appellate counsel now suggests, defendant was not fully able to appreciate trial counsel’s advice, that claim also involves matters not reviewable on this record.

Defendant also claims counsel was ineffective for failing to object when the court ordered the courtroom cleared during voir dire to ensure seating for the prospective jurors. This Court has held that “the right to a public trial has long been regarded as a fundamental privilege of the defendant in a criminal prosecution” (People v Jelke, 308 NY 56, 61 [1954]). This right extends to jury selection (Presley v Georgia, 558 US 209 [2010] [requiring courts to consider alternatives to courtroom closure]; see also People v Martin, 16 NY3d 607 [2011] [same], revg 71 AD3d 917 [2010]). However, at the time of defendant’s trial, lower courts in the state relied on this Court’s decision in People v Colon (71 NY2d 410 [1988]) to uphold the practice of excluding the public and family members where limited seating required it, without consideration of alternatives (see People v Varela, 22 AD3d 264, 265 [1st Dept 2005]; People v Gibbons, 18 AD3d 773 [2d Dept 2005]). Given the state of the law at the time, counsel was not ineffective for failing to object to a judicially sanctioned practice (see Rivera, 71 NY2d at 708).

Based on the totality of the circumstances at the time of defendant’s representation, and upon consideration of the proceedings as a whole, we conclude counsel was not ineffective under our state standard (Baldi, 54 NY2d 137; Stultz, 2 NY3d 277). Moreover, “[s]ince our state standard . . . offers greater protection than the federal test, we necessarily reject defendant’s federal constitutional challenge” (Wragg, 26 NY3d at 412 [internal quotation marks omitted], quoting People v Caban, 5 NY3d 143, 156 [2005]).

Defendant’s remaining claim, that the court failed to meaningfully respond to the jury note in violation of CPL 310.30, is unpreserved. This Court recently held that,

“where counsel has meaningful notice of the content of a jury note and of the trial court’s response, or lack thereof, to that note, the court’s alleged violation of the meaningful response requirement does not constitute a mode of proceedings error, and counsel is required to preserve any claim of error for appellate review” (People v Mack, 27 NY3d 534, 537 [2016], rearg denied 28 NY3d 944 [2016]).

Here, counsel objected to the response precisely because the court mentioned justification and self-defense, not, as defendant now argues, on the grounds that the court should have instructed the jury on the defense of justification. Thus, counsel did not preserve the specific objection raised on appeal (see People v Gray, 86 NY2d 10, 21-22 [1995]; People v Crowder, 24 NY3d 1134, 1136-1137 [2015]; People v Hanley, 20 NY3d 601, 605 [2013]).

Accordingly, the Appellate Division order should be affirmed.

Chief Judge DiFiore and Judges Pigott, Abdus-Salaam, Stein, Fahey and Garcia concur.

Order affirmed.

      . At sentencing, the court dismissed the weapons possession count because it was erroneously listed on the verdict sheet as third-degree criminal possession of a weapon.

      . The parties’ interpretations of People v Petrovich (87 NY2d 961 [1996]) in support of their respective positions do not require a different outcome or analysis. In Petrovich defendant’s desire to charge the jury with only second-degree murder—and not manslaughter under EED—was “dispositive of a defendant’s fate” (87 NY2d at 963). The Court held that the defendant had not been deprived of his right to counsel when the EED defense was not presented (id.). Here too, given the obvious concerns inherent to defendant’s competing defense theories, we cannot say that counsel’s advancing one theory over the other was in abrogation of his role as advisor and trial strategist such that his representation was less than meaningful.

      . Regardless of where the ultimate decision-making authority lies here, American Bar Association standards, not promulgated at the time of defendant’s trial, now inform the profession that “[i]f defense counsel has a good faith doubt regarding the client’s competence to make important decisions, counsel should consider seeking an expert evaluation from a mental health professional, within the protection of confidentiality and privilege rules if applicable” (ABA Standards for Criminal Justice, Defense Function, standard 4-5.2 [c] [4th ed 2015]). Defendant has not presented information as to whether counsel had reason to doubt defendant’s ability to understand the defense strategy or assist counsel in presenting a defense. Thus, we have no occasion to express an opinion as to whether counsel’s actions or inactions comported with any applicable professional norms.

      . While the record is unclear, and the parties dispute whether the public was removed, assuming the courtroom was closed, defendant’s claim of ineffective assistance is meritless for the reasons we discuss.