author: Pigott, J. Rivera, J. (concurring).

text:
    [988 NE2d 473, 965 NYS2d 738]
    The People of the State of New York, Appellant, v Randolfo Diaz, Respondent.
    Argued February 14, 2013;
    decided March 26, 2013

      POINTS OF COUNSEL

      Charles J. Hynes, District Attorney, Brooklyn (Ruth E. Ross and Leonard Joblove of counsel), for appellant.
    I. The trial court properly allowed the People’s expert to testify about how adult sexual abusers may “groom” their child victims to comply with the abusers’ sexual demands. (Dougherty v Milliken, 163 NY 527; People v Taylor, 75 NY2d 277; De Long v County of Erie, 60 NY2d 296; People v Abney, 13 NY3d 251; People v Cronin, 60 NY2d 430; People v Lee, 96 NY2d 157; People v Carroll, 95 NY2d 375; People v Spicola, 16 NY3d 441; People v Keindl, 68 NY2d 410; People v Cintron, 75 NY2d 249.) II. The trial court properly precluded defendant from calling a witness to testify about a purportedly false prior allegation of sexual abuse that the complainant had allegedly made against that witness. In any event, any error in precluding that testimony was harmless. (People v Nieves, 67 NY2d 125; People v Alvino, 71 NY2d 233; People v Zabrocky, 26 NY2d 530; People v Mandel, 48 NY2d 952, 446 US 949; People v Smith, 272 AD2d 713; People v McKnight, 55 AD3d 1315; People v Pereau, 45 AD3d 978; People v Frary, 29 AD3d 1223; People v Hill, 17 AD3d 1081; People v Breheny, 270 AD2d 926.)

      Lynn W.L. Fahey, Appellate Advocates, New York City (Anna Pervukhin of counsel), for respondent.
    I. The Appellate Division correctly held that precluding respondent from calling the complainant’s mother’s ex-boyfriend, whom the complainant had previously falsely accused of sexual abuse, as a defense witness deprived him of his constitutional rights to present a defense and to confrontation. (People v Mandel, 48 NY2d 952; People v Bridgeland, 19 AD3d 1122; People v Badine, 301 AD2d 178; People v Harris, 151 AD2d 981; People v Gomez, 79 AD3d 1065; People v Vigliotti, 203 AD2d 898; People v Zabrocky, 26 NY2d 530; People v Alvino, 71 NY2d 233; People v Perez, 40 AD3d 1131; People v McFarley, 31 AD3d 1166.) II. The Appellate Division correctly held that the testimony by the People’s child sex abuse expert regarding how pedophiles “groom” children, which closely mirrored the complainant’s claims, improperly bolstered the complainant’s credibility. (People v Ciaccio, 47 NY2d 431; People v Spicola, 16 NY3d 441; People v Carroll, 95 NY2d 375; People v Taylor, 75 NY2d 277; People v Bennett, 169 AD2d 369; United States v Scheffer, 523 US 303; United States v Barnard, 490 F2d 907; People v Kozlowski, 11 NY3d 223; United States v Raymond, 700 F Supp 2d 142; United States v Brand, 467 F3d 179.)
   OPINION OF THE COURT

Pigott, J.

Defendant, the step-grandfather of the complainant, is alleged to have sexually abused the complainant multiple times in 2006 and 2007, when she was in the fourth and fifth grades. He was charged with course of sexual conduct against a child in the first and second degrees (Penal Law §§ 130.75 [1] [a]; 130.80 [1] [a]) and endangering the welfare of a child (Penal Law § 260.10 [1]).

At a jury trial, the complainant testified that in September 2006, she was living with her mother, her brother, her grandmother, and defendant, in a three-bedroom apartment in Brooklyn. She testified that in the beginning of fourth grade, while the complainant’s mother was at work, defendant began sexually abusing her.

The complainant’s mother testified that prior to January 2, 2008, she saw nothing to suggest that the complainant might have been abused. Shortly after midnight on January 2, however, the mother found the complainant in her bedroom crying and gasping for air. Complainant told her mother about some of the alleged sexual misconduct of defendant. Mother called the police.

Detective Frank Agostini testified that he recovered sex toys and pornographic videos from a closet in the bedroom shared by defendant and complainant’s grandmother. A forensic criminalist determined that DNA on the sex toys did not match that of the complainant.

A physician who examined the complainant testified that he conducted a full genital and anal examination and concluded that there was no “injury” to the complainant’s hymen, but “90 percent” of girls who have disclosed sexual intercourse have “normal” intact hymens.

The People also presented the testimony of a psychologist with particular expertise in the field of child sexual abuse. The expert qualified her testimony by stating that she had no dealings with the parties in the case, did not interview the complainant, and reached no conclusions with respect to the case on trial. The witness explained that most children who were sexually abused did not “tell about this right away.”

The prosecutor then asked about offender behavior:

“Q: Have studies been conducted about the manner in which offenders engage children in sexual behavior?
“A: Yes.
“A: No, no, no. You have ...”
“Q: Do all offenders operate in the same manner?

Defense counsel objected, arguing that the testimony was “supposed to be about alleged victims not about an alleged suspect.” The prosecutor countered that studies had been conducted “in the manner in which offenders engage children in sexual behavior,” making this a legitimate part of a “general” discussion of “child sexual abuse.” The court agreed with the prosecutor.

Defense counsel then argued that the expert could discuss only matters outside the “ken” of the average juror, and “[t]he idea that a family member can create a sense of trust with a child is not beyond the knowledge of the juror”; rather, it is “simple common family interactions.” Counsel further argued that allowing such evidence would be outweighed by its prejudice.

When the court suggested that defense counsel address these concerns through cross-examination, counsel protested that “[b]y that time the cat [would be] out [of] the bag” and that it was not permissible to “attach expert testimony to these factors that make[ ] it consistent with our guy’s behavior.” Even without posing hypotheticals, counsel argued, the similarity between the complainant’s testimony and the evidence from the expert would be too great.

The court rejected these arguments and the prosecutor continued her examination:

“Q: Are there different ways that a child can be engaged in sexual activity?
“A: Sure. There are a number of different ways and part of this is age dependent. Sometimes the activities are introduced as games, sometimes the activities are introduced in the guise of sexual education, sometimes pornography is used.”

The court overruled defense counsel’s renewed objection. The expert then continued by providing the following definition of “grooming”:

“It refers to the process by which the offender, first of all, gains access and opportunity to the child, establishes themselves in a trusted authority position over the child and then begins the process of breaking down the child’s inhibitions about sex, in other words, how the offender normalizes sexual behaviors.”

During a break in the proceedings, defense counsel asked that portions of the expert’s testimony be stricken, and a curative instruction given. Defense counsel argued that much of the testimony “had nothing to do” with explaining why a victim’s behavior would be inconsistent with a layperson’s beliefs. Rather, he argued that the expert testified about the ways in which a perpetrator can engage a young victim in sexual activities. She spoke of “ways that a perpetrator could step by step inculcate a young person into sexual acts” and “it mirrored exactly the testimony that we heard here with regard to the use of pornographic videos and with regard to the step by step touching which then leads to stronger touching, which mirrors what the complainant said in this case, the games that they play[ed].” The court denied defense counsel’s request.

The defense called a board-certified pediatrician, who examined the complainant’s medical records and the fact that she had a “normal” intact hymen. He concluded that given her allegations, the results of her exam were “unexpected,” and stated that it was “extremely improbable” that there was penile-vaginal penetration.

The grandmother testified that the complainant used to watch television and frequently spent time online. There were two or three occasions where the complainant locked herself in the grandmother’s room, where the grandmother and defendant kept pornographic movies and sex toys.

Four witnesses testified for the defense that the complainant had a poor reputation for honesty. The complainant’s uncle stated that among her family, neighbors and friends, the complainant had a reputation as someone who “lies.” The complainant’s other uncle, and his wife, both stated that the complainant had a reputation for lying and testified as to an incident in which the complainant made a false accusation that someone inappropriately touched her in a park. A neighbor testified that the complainant had a reputation for lying and said that he no longer lets his children play with the complainant because “she lies so constantly.”

For a short period of time, the complainant and her family had lived with her younger brother’s biological father, Martinez. Defendant sought to call Martinez to testify that approximately five to six years earlier—approximately two years before the instant allegations arose against defendant—the complainant accused him of sexual abuse. The complainant and her mother denied at trial that the complainant made these allegations against Martinez. The trial court disallowed Martinez’s testimony on the grounds that the testimony was collateral and constituted inadmissible hearsay.

The jury acquitted defendant of course of sexual conduct against a child in the first degree, but convicted him of course of sexual conduct against a child in the second degree and endangering the welfare of a child. Defendant appealed, arguing, among other things, that (1) the trial court erred in allowing the expert to testify about how an adult sexual abuser may act to gain the compliance of a child victim without using threats or force; and (2) the trial court erred in precluding Martinez’s testimony.

The Appellate Division reversed and remitted the matter for a new trial (85 AD3d 1047 [2d Dept 2011]). As relevant to this appeal, the court found that the trial court erred in precluding the testimony of Martinez and that the error was not harmless (id. at 1050). The court further found that the trial court erred in permitting the prosecutor to adduce testimony from the People’s child abuse expert (id. at 1051). The court agreed with defendant that her testimony, regarding how a sex offender typically operates to win over the trust of a child victim, closely paralleled the testimony of the complainant (id.). Such testimony, the court found, improperly bolstered the complainant’s credibility (id.). Under these circumstances, the court held, “the potential value of the evidence [was] outweighed by the possibility of undue prejudice to the defendant or interference with the province of the jury” (id.).

A Judge of this Court granted the People leave to appeal (18 NY3d 882 [2012]).

Expert testimony is properly admitted if it helps to “clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” (De Long v County of Erie, 60 NY2d 296, 307 [1983]). Here, it was not an abuse of discretion for the trial court to permit expert testimony regarding the behavior of sexual abusers. That testimony is permissible as helpful for the jury to understand victims’ unusual behavior (see People v Williams, 20 NY3d 579 [2013] [decided today]). Although some of the testimony discussed behavior similar to that alleged by the complainant in this case, the expert spoke of such behavior in general terms (cf. id. [finding it was improper for the prosecutor to pose hypothetical questions to the expert that mirrored the abuse that occurred in that particular case]). In addition, the jury heard the expert testify that she was not aware of the facts of the particular case, did not speak with the complainant and was not rendering an opinion as to whether sexual abuse took place.

We agree with the Appellate Division, however, that the proffered testimony of Martinez should have been permitted at trial. Evidence of a complainant’s prior false allegations of sexual abuse is not inadmissible as a matter of law (see People v Hunter, 11 NY3d 1, 6 [2008]). Rather, it may be permitted if the prior allegations “suggest a pattern casting substantial doubt on the validity of the charges” (People v Mandel, 48 NY2d 952, 953 [1979]).

Here, Martinez’s proposed testimony went to a material issue of defendant’s defense, namely, whether the complainant had a history of making false allegations of sexual abuse by family members. Defense counsel sought to introduce the testimony as a prior inconsistent statement; to confront the complainant’s testimony that she never made an allegation against Martinez and to rebut the testimony of the complainant’s mother who testified she was unaware of any accusation made by complainant against Martinez. These statements opened the door to Martinez’s rebuttal, which, if believed, suggested that the testimony of the complainant and her mother were not credible.

The evidence of defendant’s guilt was far from overwhelming in this case. There was no medical evidence or DNA evidence to corroborate the complainant’s claims. Indeed, the medical evidence ran contrary to complainant’s claim that defendant had vaginal intercourse with her. Moreover, the jury acquitted defendant of the top count, indicating that the jury may well have discredited a portion of complainant’s testimony. Thus, the trial court’s error in excluding the testimony of Martinez was not harmless.

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

Rivera, J. (concurring).

I concur in the result, and write separately because I believe the majority incorrectly concludes that the expert testimony was properly admitted under our prior decision in People v Spicola (16 NY3d 441 [2011]) and today’s decision in People v Williams (20 NY3d 579 [2013]).

I would hold that the expert testimony crossed the line from testimony “helpful for the jury to understand victims’ unusual behavior” (majority op at 575), and instead described abuser conduct that was analogous to the complainant’s testimony. Thus, it would tend to imply the complainant’s testimony was credible. The expert’s testimony discussing similar behavior to that alleged by the complainant was not of such a general matter that it avoids the problems we noted in Williams. By referencing as abuser conduct the use of pornography, and the escalation in physical intimacy and sexual touching, the expert described conduct supporting the complainant’s testimony of abuse. The expert also used terminology characterizing abusers as “smooth and savvy,” clearly meant as a descriptor of the abuser. The expert further described how she trains people to distinguish between a fabrication and real experience, which included her description of tactile differentiation. By testifying about increased and escalating touching, the expert bolstered complainant’s testimony that she had physical encounters with the defendant that increased in intimacy over time.

It is unclear how a response from an expert to a hypothetical that mirrors the victim’s testimony is more problematic than expert testimony submitted outside the context of a hypothetical situation. Potentially the latter is more prejudicial because it is an organic response from the expert, rather than one that might appear “coached.” As the majority states in this Court’s factual summary of the case below, the trial judge indicated to defense counsel that he could cross-examine the expert. Specifically, she told counsel that he could ask if the expert “never looked at the file, doesn’t know anything about the kid, never met this kid, was never told about any of the particular facts of the case.” However, such cross-examination may only solidify in the jurors’ minds the expert’s testimony.

To the extent the expert’s testimony attempts to explain the victim’s responses and conduct, it demonstrates the difficulty in drawing the line between permissible and impermissibly suggestive testimony. Unlike Williams, where we found harmless error, I would hold the testimony in this case is prejudicial, warranting reversal. Here, as the majority concludes, there is a lack of overwhelming proof of defendant’s guilt, and medical evidence contrary to the complainant’s claim.

On the issue of the preclusion of testimony by Mr. Martinez, I agree with the majority that the preclusion was reversible error, and therefore concur in affirming the Appellate Division’s order, reversing and remitting for a new trial.

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

Order affirmed.


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [987 NE2d 260, 964 NYS2d 483]
    The People of the State of New York, Respondent, v Bill Williams, Appellant.
    Argued February 14, 2013;
    decided March 26, 2013

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (Kendra L. Hutchinson of counsel), for appellant.
    I. Appellant was denied a fair trial by sex abuse expert testimony that recounted the typical behavior of abusers, that provided a “professional opinion” that detail after detail of the complainants’ behavior was “consistent with” child sex abuse syndrome, and that the factfinder admitted he did not need. (People v Rivers, 18 NY3d 222; De Long v County of Erie, 60 NY2d 296; People v Lee, 96 NY2d 157; People v Taylor, 75 NY2d 277; People v Cronin, 60 NY2d 430; People v Bennett, 79 NY2d 464; People v Carroll, 95 NY2d 375; People v Singh, 186 AD2d 285; People v McGuinness, 245 AD2d 701; People v Spicola, 16 NY3d 441.) II. Appellant was denied the effective assistance of counsel when his attorney failed to (a) properly challenge the testimony of the People’s child sex abuse expert; (b) know under which statutory subdivisions the most serious crimes were charged; or (c) challenge or even seek to clarify the numerous vague and amorphous counts, some of which the People eventually conceded were either multiplicitous or legally insufficient. (Strickland v Washington, 466 US 668; People v Baldi, 54 NY2d 137; Fisher v Gibson, 282 F3d 1283; Williams v Washington, 59 F3d 673; People v Zaborski, 59 NY2d 863; People v Hewitt, 95 AD3d 1358; People v Cortez, 296 AD2d 465; Eze v Senkowski, 321 F3d 110; Gersten v Senkowski, 426 F3d 588; People v Spicola, 16 NY3d 441.)

      Charles J. Hynes, District Attorney, Brooklyn (Ruth E. Ross and Leonard Joblove of counsel), for respondent.
    I. Defendant has, in part, failed to preserve his claim regarding the admissibility of the expert testimony on the behaviors of child victims of sexual abuse. Moreover, that testimony was properly admitted. In any event, any error in admitting that testimony was harmless. (People v Person, 8 NY3d 973; People v Garcia, 83 NY2d 817; People v Qualls, 55 NY2d 733; Dougherty v Milliken, 163 NY 527; People v Taylor, 75 NY2d 277; De Long v County of Erie, 60 NY2d 296; People v Abney, 13 NY3d 251; People v Cronin, 60 NY2d 430; People v Lee, 96 NY2d 157; People v Carroll, 95 NY2d 375.) II. Defendant received the effective assistance of counsel. (People v Henry, 95 NY2d 563; People v Benevento, 91 NY2d 708; People v Hobot, 84 NY2d 1021; Strickland v Washington, 466 US 668; People v Taylor, 1 NY3d 174; People v Caban, 5 NY3d 143; People v Satterfield, 66 NY2d 796; People v Stultz, 2 NY3d 277; People v Flores, 84 NY2d 184.)
   OPINION OF THE COURT

Pigott, J.

Defendant was charged with various sex crimes pertaining to separate incidents involving two 12-year-old girls. At a bench trial, the People presented the testimony of an expert witness on the subject of child sexual abuse accommodation syndrome (CSAAS). We agree with defendant that the expert’s testimony was not adequately limited because certain hypothetical questions posed by the prosecutor improperly bolstered the People’s proof that defendant was the perpetrator. However, because the evidence of defendant’s guilt was otherwise overwhelming, we find the error harmless and affirm.

In 2006 and 2007, defendant lived with his girlfriend, NWJ and her 12-year-old twin daughters. NW’s 12-year-old sister, PW, who lived nearby, often visited overnight, sharing the twins’ bedroom. In May of 2007, PW reported to an assistant principal that defendant was sexually abusing her. Defendant was indicted for second-degree course of sexual conduct against a child as to AW, one of NW’s daughters, and for rape and numerous additional counts as to PW

At a bench trial, the People presented, along with the testimony of both AW and PW, the testimony of a physician who examined PW. Her findings were consistent with a report of the type of sexual abuse to which PW testified.

The People also called an expert on CSAAS. He explained that he did not meet the complainants nor was rendering any opinion about any facts specific to the case. Rather, his testimony concerned CSAAS and its five stages. He began by describing actions of a perpetrator as opposed to the victim, i.e. the “engagement” phase, during which an adult who is an authority figure with respect to the child utilizes his or her position within the family to change from a caretaking relationship with the child to a sexual relationship.

He then moved on to the second stage, “sexual interaction,” which he also explained in terms of the abuser’s actions:

“That’s where the adult, in some way, has a physical relationship with a child. The sexual acts that occur may be progressive, meaning, that over time they may become more intrusive. This may be more than one act, and the sexual interaction phase may last for a long period of time or it may be a brief period of time depending on the circumstances.”

The third stage, described as “secrecy,” was explained in terms of both what an abuser does and why the child keeps the matter secret—because of embarrassment or shame, “sometimes enforced” by the adult telling the child to keep it secret or suggesting negative consequences if it is revealed. Only then did the expert reach the stage of “disclosure,” which, he opined, may be delayed because of the child’s fear, shame, or emotional confusion. A final stage called “repression,” was said to involve the child’s difficulty in thinking about or remembering the abuse.

The prosecutor then presented the expert witness with a series of hypothetical questions that mirrored the girls’ testimony and asked if various facets of that testimony were consistent with the syndrome. He asked, for example:

“Now, Doctor, is it consistent with the syndrome of a child living in her own home with a man who is her mother’s live-in boyfriend, is it consistent with a syndrome that this man would have this child straddle him . . . that this child would not call out to another child similar in age who is sleeping in the very next room?”

The Court overruled objections to this type of questioning. Defendant was ultimately found guilty on all counts.

On appeal, the Appellate Division modified, on grounds not relevant here, but otherwise affirmed (91 AD3d 679 [2d Dept 2012]). The court held that the trial court had providently exercised its discretion in admitting the expert testimony. Citing this Court’s decision in People v Spicola (16 NY3d 441, 465-466 [2011], cert denied 565 US —, 132 S Ct 400 [2011]), the court held:

“While the hypothetical situation described by the prosecutor during the direct examination of the expert bore some similarities to the facts of this case, the expert did not offer an opinion with respect to the credibility of the complainants, and expressly disavowed any intention of rendering an opinion as to whether the complainants were victims of sexual abuse” (91 AD3d at 681).

A Judge of this Court granted defendant leave to appeal.

The admissibility of expert testimony is dependent on whether the expert testimony “would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” (De Long v County of Erie, 60 NY2d 296, 307 [1983]). Generally, that determination is left to the sound discretion of the trial court (id.).

This Court has held that “expert testimony regarding rape trauma syndrome, abused child syndrome or similar conditions may be admitted to explain behavior of a victim that might appear unusual or that jurors may not be expected to understand” (People v Carroll, 95 NY2d 375, 387 [2000]). Such testimony is allowed to explain, as originally offered here, why a child may not have immediately reported sexual abuse. It is not permitted, however, for the purpose of showing that the expert considers a particular complainant to be credible (id.).

Recently, in People v Spicola, we upheld the admission of expert testimony regarding CSAAS to rehabilitate the complainant’s credibility (16 NY3d 441). There, as in this case, the expert had not met the victim and explained that the testimony was not to be construed as giving an opinion as to whether the victim was indeed a victim of abuse. The expert’s testimony explained unusual behavior of child abuse victims and, particularly, why a child may wait a long time before reporting the alleged abuse. This testimony, we held, was permissible in explaining CSAAS (id. at 466-467).

Defendant argues that the expert testimony here was inadmissible because it did not focus only on the victim’s behavior but also discussed the behavior of sexual abusers. The typical behavior of a sexual abuser, defendant argues, is not beyond the ken of a typical juror. Here, the admission of the expert’s testimony concerning abusers’ behavior that was relevant to explain the accommodation syndrome was a proper exercise of discretion. That testimony assisted in explaining victims’ subsequent behavior that the factfinder might not understand, such as why victims may accommodate abusers and why they wait before disclosing the abuse.

We agree with defendant, however, that the expert’s testimony exceeded permissible bounds when the prosecutor tailored the hypothetical questions to include facts concerning the abuse that occurred in this particular case. Such testimony went beyond explaining victim behavior that might be beyond the ken of a jury, and had the prejudicial effect of implying that the expert found the testimony of this particular complainant to be credible—even though the witness began his testimony claiming no knowledge of the case before the court.

This error, however, was harmless because the evidence of defendant’s guilt was overwhelming and there was no significant probability that, but for the introduction of the erroneous portion of his testimony, defendant would have been acquitted. Here, both victims testified in detail as to the sexual acts committed by defendant. In addition, PW’s testimony was corroborated by the medical evidence presented at trial.

Finally, we conclude that defendant’s claim that he was denied the effective assistance of counsel is without merit.

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

Chief Judge Lippman and Judges Gkaffeo, Read, Smith and Rivera concur.

Order affirmed.


author:
Chief Judge Lippman.
      Smith, J. (dissenting).

text:
    [987 NE2d 621, 965 NYS2d 61]
    Overstock.com, Inc., Appellant, v New York State Department of Taxation and Finance et al., Respondents. Amazon.com, LLC, et al., Appellants, v New York State Department of Taxation and Finance et al., Respondents.
    Argued February 6, 2013;
    decided March 28, 2013

      POINTS OF COUNSEL

      Bracewell & Giuliani LLP, New York City (Daniel S. Connolly and Rachel B. Goldman of counsel), for appellant in the first above-entitled action.
    I. New York’s Internet tax is facially invalid under the Commerce Clause. (Quill Corp. v North Dakota, 504 US 298; Healy v Beer Institute, 491 US 324; General Motors Corp. v Tracy, 519 US 278; Northwestern States Portland Cement Co. v Minnesota, 358 US 450; Dutchess Sanitation Serv. v Town of Plattekill, 51 NY2d 670; Wardair Canada Inc. v Florida Dept. of Revenue, 477 US 1; Hughes v Oklahoma, 441 US 322; National Bellas Hess, Inc. v Department of Revenue of Ill., 386 US 753; Oklahoma Tax Comm’n v Jefferson Lines, Inc., 514 US 175; Complete Auto Transit, Inc. v Brady, 430 US 274.) II. The Internet tax violates due process. (People v Leyva, 38 NY2d 160; Speiser v Randall, 357 US 513; Bailey v Alabama, 219 US 219; Vlandis v Kline, 412 US 441; Central Sav. Bank v City of New York, 280 NY 9; Usery v Turner Elkhorn Mining Co., 428 US 1; Heiner v Donnan, 285 US 312; Eff-Ess, Inc. v New York Edison Co., 237 App Div 315; County Court of Ulster Cty. v Allen, 442 US 140.)

      Gibson, Dunn & Crutcher LLP, New York City (Randy M. Mastro and Oliver M. Olanoff of counsel), and Gibson, Dunn & Crutcher LLP (Julian W. Poon, of the California bar, admitted pro hac vice, and Kahn A. Scolnick, of the California bar, admitted pro hac vice, of counsel) for appellants in the second above-entitled action.
    I. Tax Law § 1101 (b) (8) (vi) violates due process on its face. (Complete Auto Transit, Inc. v Brady, 430 US 274; Quill Corp. v North Dakota, 504 US 298; Scripto, Inc. v Carson, 362 US 207; Tyler Pipe Industries, Inc. v Washington State Dept. of Revenue, 483 US 232; National Bellas Hess, Inc. v Department of Revenue of Ill., 386 US 753; Miller Brothers Co. v Maryland, 347 US 340; Speiser v Randall, 357 US 513, Bailey v Alabama, 219 US 219; United States v Romano, 382 US 136; Tot v United States, 319 US 463.) II. Tax Law § 1101 (b) (8) (vi) violates the Commerce Clause on its face. (Quill Corp. v North Dakota, 504 US 298; Scripto, Inc. v Carson, 362 US 207; Tyler Pipe Industries, Inc. v Washington State Dept. of Revenue, 483 US 232; Miller Brothers Co. v Maryland, 347 US 340; National Bellas Hess, Inc. v Department of Revenue of Ill., 386 US 753; St. Tammany Parish Tax Collector v Barnesandnoble.Com, 481 F Supp 2d 575; Matter of Orvis Co. v Tax Appeals Trib. of State of N.Y., 86 NY2d 165; General Trading Co. v State Tax Comm’n of Iowa, 322 US 335; Felt & Tarrant Mfg. Co. v Gallagher, 306 US 62; American Libs. Assn. v Pataki, 969 F Supp 160.) III. The Appellate Division, First Department, applied the wrong legal standard to decide Amazon.com, LLC’s and Amazon Services LLC’s facial constitutional claims. (United States v Salerno, 481 US 739; Doe v City of Albuquerque, 667 F3d 1111; Washington State Grange v Washington State Republican Party, 552 US 442; Chicago v Morales, 527 US 41; Washington v Glucksberg, 521 US 702; County Court of Ulster Cty. v Allen, 442 US 140; Leary v United States, 395 US 6.) IV Even under the “no set of circumstances” test, Tax Law § 1101 (b) (8) (vi) would still be unconstitutional on its face. (Roe v Meese, 689 F Supp 344; United States v Arizona, 295 US 174; Speiser v Randall, 357 US 513; Washington State Grange v Washington State Republican Party, 552 US 442.)

      Eric T. Schneiderman, Attorney General, New York City (Steven C. Wu, Barbara D. Underwood and Andrew D. Bing of

      counsel), for respondents in the first and second above-entitled actions.
    I. Facial invalidation requires proof that a statute is indisputably unconstitutional regardless of individual factual circumstances. (People v Stuart, 100 NY2d 412; Cohen v Cuomo, 19 NY3d 196; Paterson v University of State of N.Y., 14 NY2d 432; Cohen v State of New York, 94 NY2d 1; United States v Salerno, 481 US 739; Matter of Moran Towing Corp. v Urbach, 99 NY2d 443; Washington State Grange v Washington State Republican Party, 552 US 442; Matter of McGee v Korman, 70 NY2d 225; Sabri v United States, 541 US 600; Department of Taxation & Finance of N. Y. v Milhelm Attea & Bros., 512 US 61.) II. Tax Law § 1101 (b) (8) (vi) complies with the dormant Commerce Clause. (Matter of Zelinsky v Tax Appeals Trib. of State of N.Y., 1 NY3d 85; Matter of Moran Towing Corp. v Urbach, 99 NY2d 443; Matter of Orvis Co. v Tax Appeals Trib. of State of N.Y., 86 NY2d 165; Quill Corp. v North Dakota, 504 US 298; Scripto, Inc. v Carson, 362 US 207; National Geographic Soc. v California Bd. of Equalization, 430 US 551; Standard Pressed Steel Co. v Department of Revenue of Wash., 419 US 560; Felt & Tarrant Mfg. Co. v Gallagher, 306 US 62; Tyler Pipe Industries, Inc. v Washington State Dept. of Revenue, 483 US 232; Complete Auto Transit, Inc. v Brady, 430 US 274.) III. Tax Law § 1101 (b) (8) (vi)’s presumption of solicitation satisfies the Due Process Clause. (Mobile, J. & K. C. R. Co. v Turnipseed, 219 US 35; Matter of Casse v New York State Racing & Wagering Bd., 70 NY2d 589; Usery v Turner Elkhorn Mining Co., 428 US 1; United States v Gainey, 380 US 63; County Court of Ulster Cty. v Allen, 442 US 140; Lavine v Milne, 424 US 577; Trump v Chu, 65 NY2d 20; Matter of Grace v New York State Tax Commn., 37 NY2d 193; Matter of 31/32 Lexington Assoc. v Tax Appeals Trib. of State of N.Y., 258 AD2d 684; Matter of Orvis Co. v Tax Appeals Trib. of State of N.Y., 86 NY2d 165.)
   OPINION OF THE COURT

Chief Judge Lippman.

Plaintiffs challenge Tax Law § 1101 (b) (8) (vi) (the Internet tax), alleging that it is unconstitutional on its face because it violates the Commerce Clause by subjecting online retailers, without a physical presence in the state, to New York sales and compensating use taxes. They also maintain that the Internet tax violates the Due Process Clause by creating an irrational, irrebuttable presumption of solicitation of business within the state. We reject plaintiffs’ facial challenges.

L

Plaintiff Amazon.com, LLC is a limited liability company formed in Delaware; Amazon Services LLC is a limited liability company formed in Nevada (collectively Amazon). Its principal corporate offices are located in the State of Washington. Amazon is strictly an online retailer—selling its merchandise solely through the Internet—and represents that it does not maintain any offices or property in New York.

Amazon offers an “Associates Program” through which third parties agree to place links on their own websites that, when clicked, direct users to Amazon’s website. The Associates are compensated on a commission basis. They receive a percentage of the revenue from sales generated when a customer clicks on the Associate’s link and completes a purchase from the Amazon site. The operating agreement governing this arrangement states that the Associates are independent contractors and that there is no employment relationship between the parties. Thousands of entities enrolled in the Associates Program have provided a New York address in connection with their applications.

Plaintiff Overstock.com is a Delaware corporation with its principal place of business in Utah. Overstock likewise sells its merchandise solely through the Internet and does not maintain any office, employees or property in New York. Similar to Amazon, Overstock had an “Affiliates” program through which third parties would place links for Overstock.com on their own websites. When a customer clicked on the link, he or she was immediately directed to Overstock.com, and if the customer completed a purchase, the Affiliate received a commission. According to the parties’ Master Agreement, the Affiliates were independent contractors without the authority to obligate or bind Overstock.

In April 2008, the legislature amended the Tax Law to include the subparagraph at issue here. In connection with the statutory definition of “vendor,” the Internet tax provides that

“a person making sales of tangible personal property or services taxable under this article (‘seller’) shall be presumed to be soliciting business through an independent contractor or other representative if the seller enters into an agreement with a resident of this state under which the resident, for a commission or other consideration, directly or indirectly refers potential customers, whether by a link on an internet website or otherwise, to the seller, if the cumulative gross receipts from sales by the seller to customers in the state who are referred to the seller by all residents with this type of an agreement with the seller is in excess of ten thousand dollars during the preceding four quarterly periods” (Tax Law § 1101 [b] [8] [vi]).

The statutory presumption, however, can “be rebutted by proof that the resident with whom the seller has an agreement did not engage in any solicitation in the state on behalf of the seller that would satisfy the nexus requirement of the United States constitution during the four quarterly periods in question” (Tax Law § 1101 [b] [8] [vi]).

Shortly after the legislation was enacted, the Department of Taxation and Finance (DTF) issued a memorandum to provide taxpayer guidance on the recent amendment. The document clarified that advertising alone would not invoke the statutory presumption, but further observed that, for purposes of this statute, the placement of a link to the seller’s website where the resident was compensated on the basis of completed sales deriving from that link would not be considered mere advertising (see NY St Dept of Taxation & Fin Mem No. TSB-M-08[3]S). The memorandum also explained that the statutory presumption could be rebutted through proof that the residents’ only activity in New York on behalf of the seller was to provide a link to the seller’s website and that the residents did not engage in any in-state solicitation directed toward potential New York customers (see NY St Dept of Taxation & Fin Mem No. TSB-M-08[3]S).

The following month, DTF issued a second memorandum, further detailing how sellers could rebut the statutory presumption. The presumption would be deemed successfully rebutted if the seller satisfied two conditions: (1) if the parties’ contract prohibited the resident representative from engaging in any solicitation activities in New York State on behalf of the seller, and (2) if each resident representative submitted an annual, signed certification stating that the resident had not engaged in any of the proscribed solicitation (see NY St Dept of Taxation & Fin Mem No. TSB-M-08[3.1]S).

Amazon commenced this action on April 25, 2008, seeking a judgment declaring that the statute was unconstitutional both on its face and as applied. Overstock commenced its action on May 30, 2008, making essentially the same arguments and also seeking injunctive relief. Supreme Court, in separate decisions, granted DTF’s motions to dismiss the complaints for failure to state a cause of action and denied plaintiffs’ cross motions for summary judgment as moot, rejecting all of plaintiffs’ challenges to the constitutionality of the statute (see Amazon.com LLC v New York State Dept. of Taxation & Fin., 23 Misc 3d 418 [Sup Ct, NY County 2009]).

The Appellate Division affirmed the portions of the orders that dismissed the facial challenges under the Commerce and Due Process Clauses and declared the statute constitutional on its face (81 AD3d 183 [1st Dept 2010]). However, the Court modified by reinstating the as-applied challenges, finding that further discovery was required before those claims could be determined. Plaintiffs then entered into stipulations of discontinuance withdrawing their as-applied constitutional challenges with prejudice, which were deemed the final judgments. They now appeal pursuant to CPLR 5601 (b) (1) and (d), bringing up for review the prior nonfinal Appellate Division order.

II

Having elected to forgo their as-applied challenges, plaintiffs now confront the substantial hurdle of demonstrating that the Internet tax is unconstitutional on its face. It is well settled that facial constitutional challenges are disfavored. “Legislative enactments enjoy a strong presumption of constitutionality . . . [and] parties challenging a duly enacted statute face the initial burden of demonstrating the statute’s invalidity ‘beyond a reasonable doubt.’ Moreover, courts must avoid, if possible, interpreting a presumptively valid statute in a way that will needlessly render it unconstitutional” (LaValle v Hayden, 98 NY2d 155, 161 [2002] [citations omitted]).

There is some dispute as to the appropriate standard for evaluating a facial challenge under the Commerce Clause— whether we must determine that there is “no set of circumstances” under which the statute would be valid (see Matter of Moran Towing Corp. v Urbach, 99 NY2d 443, 448 [2003], quoting United States v Salerno, 481 US 739, 745 [1987]) or apply the stricter test of whether “the statute has a plainly legitimate sweep” (see Washington State Grange v Washington State Republican Party, 552 US 442, 449 [2008] [internal quotation marks and citation omitted]; Crawford v Marion County Election Bd., 553 US 181, 202 [2008]). Under either standard, however, the Internet tax is constitutional on its face.

The dormant Commerce Clause has been interpreted to prohibit states from imposing an undue tax burden on interstate commerce (see Matter of Orvis Co. v Tax Appeals Trib. of State of N.Y., 86 NY2d 165, 170-171 [1995]). However, in the absence of an improper burden, entities participating in interstate commerce will not be excused from the obligation to pay their fair share of state taxes (see Orvis, 86 NY2d at 171). To that end, a state tax impacting the Commerce Clause will be upheld “ ‘[1] when the tax is applied to an activity with a substantial nexus with the taxing State, [2] is fairly apportioned, [3] does not discriminate against interstate commerce, and [4] is fairly related to the services provided by the State’ ” (Moran Towing, 99 NY2d at 449, quoting Complete Auto Transit, Inc. v Brady, 430 US 274, 279 [1977]). The parties agree that the only prong at issue here is whether the statute satisfies the “substantial nexus” test.

In National Bellas Hess, Inc. v Department of Revenue of Ill. (386 US 753 [1967]), the United States Supreme Court held that a use tax could not be imposed on an out-of-state mail-order business that did not have offices, property or sales representatives in Illinois. The Court noted that it had never permitted such a tax where the seller’s sole connection with its customers in the forum state was by mail or common carrier (see Bellas Hess, 386 US at 758). Rather, the Court observed that, if Illinois were permitted to impose that type of tax burden, every other taxing jurisdiction in the country could do the same, which would result in a morass of obligations to local governments (see Bellas Hess, 386 US at 759-760).

The Supreme Court confronted a similar issue involving a mail-order business in Quill Corp. v North Dakota (504 US 298, 314 [1992]) and considered whether the emphasis in Bellas Hess on physical presence within the state had been rendered obsolete by the Court’s shift toward “more flexible balancing analyses” under the Commerce Clause. While allowing that the result might have been different if the issue was being considered for the first time, the Court retained the bright-line presence requirement articulated in Bellas Hess, recognizing the benefits provided by a clear rule that established the limits of state taxing authority (see Quill, 504 US at 311, 315).

The world has changed dramatically in the last two decades, and it may be that the physical presence test is outdated. An entity may now have a profound impact upon a foreign jurisdiction solely through its virtual projection via the Internet. That question, however, would be for the United States Supreme Court to consider. We are bound, and adjudicate this controversy, under the binding precedents of that Court, the ultimate arbiter of the meaning of the Commerce Clause.

Subsequent to Quill, we further explained that, although an in-state physical presence is necessary, it “need not be substantial. Rather, it must be demonstrably more than a ‘slightest presence’ ” (Orvis, 86 NY2d at 178, quoting National Geographic Soc. v California Bd. of Equalization, 430 US 551, 556 [1977]). The presence requirement will be satisfied if economic activities are performed in New York by the seller’s employees or on its behalf (see Orvis, 86 NY2d at 178).

There are clearly parallels between a mail-order business and an online retailer—both are able to conduct their operations without maintaining a physical presence in a particular state. Indeed, physical presence is not typically associated with the Internet in that many websites are designed to reach a national or even a global audience from a single server whose location is of minimal import. However, through this statute, the legislature has attached significance to the physical presence of a resident website owner. The decision to do so recognizes that, even in the Internet world, many websites are geared toward predominantly local audiences—including, for instance, radio stations, religious institutions and schools—such that the physical presence of the website owner becomes relevant to Commerce Clause analysis. Indeed, the Appellate Division record in this case contains examples of such websites urging their local constituents to support them by making purchases through their Amazon links. Essentially, through these types of affiliation agreements, a vendor is deemed to have established an in-state sales force.

Viewed in this manner the statute plainly satisfies the substantial nexus requirement. Active, in-state solicitation that produces a significant amount of revenue qualifies as “demonstrably more than a ‘slightest presence’ ” under Orvis. Although it is not a dispositive factor, it also merits notice that vendors are not required to pay these taxes out-of-pocket. Rather, they are collecting taxes that are unquestionably due, which are exceedingly difficult to collect from the individual purchasers themselves, and as to which there is no risk of multiple taxation.

Clearly, the statutory language allows for a range of possible types of compensation (“commission or other consideration”), which would include flat fee arrangements. However, no one disputes that a substantial nexus would be lacking if New York residents were merely engaged to post passive advertisements on their websites. The bottom line is that if a vendor is paying New York residents to actively solicit business in this state, there is no reason why that vendor should not shoulder the appropriate tax burden. We will not strain to invalidate this statute where plaintiffs have not met their burden of establishing that it is facially invalid.

Ill

As explained in Quill, although Due Process and Commerce Clause challenges are “closely related,” each provision “pose[s] distinct limits on the taxing powers of the States” (504 US at 305). Unlike the bright line presented by the Commerce Clause, physical presence is not required in order to satisfy due process. Instead, the focus is on whether a party has purposefully directed its activities toward the forum state and whether it is reasonable, based on the extent of a party’s contacts with that state and the benefits derived from such access, to require it to collect taxes for that state (see Quill, 504 US at 307-308). Indeed, an entity “that is engaged in continuous and widespread solicitation of business within a State . . . clearly has fair warning that [its] activity may subject [it] to the jurisdiction of a foreign sovereign,” even in the absence of physical presence (Quill, 504 US at 308 [internal quotation marks and citation omitted]). In this respect, we believe that a brigade of affiliated websites compensated by commission is the equivalent of “a deluge of catalogs” and “a phalanx of drummers” (Quill, 504 US at 308).

Plaintiffs argue that the Internet tax violates due process because the statutory presumption is irrational and essentially irrebuttable. In order for the presumption to be constitutionally valid, there must be “a rational connection between the facts proven and the fact presumed, and ... a fair opportunity for the opposing party to make [a] defense” (Matter of Casse v New York State Racing & Wagering Bd., 70 NY2d 589, 595 [1987]).

Here, the fact proved is that the resident is compensated for referrals that result in purchases. The fact presumed is that at least some of those residents will actively solicit other New Yorkers in order to increase their referrals and, consequently, their compensation. It is plainly rational to presume that, given the direct correlation between referrals and compensation, it is likely that residents will seek to increase their referrals by soliciting customers. More specifically, it is not unreasonable to presume that affiliated website owners residing in New York State will reach out to their New York friends, relatives and other local individuals in order to accomplish this purpose. As noted above, the record contains examples of this type of solicitation by schools and certain other organizations.

The presumption would appear decidedly less rational if it were applied to those who receive some types of “other consideration”—i.e., those whose compensation is unrelated to actual sales. It is difficult to distinguish that arrangement from traditional advertising. Nonetheless, plaintiffs have chosen to limit our review to a facial challenge, and the fact that plaintiffs can posit a potential constitutional infirmity does not require the statute’s invalidation on its face. This is particularly true where, as here, the agency charged with enforcing the statute has expressly acknowledged that mere advertising is beyond the scope of the provision.

Plaintiffs also claim that the presumption is irrebuttable because it will be extremely difficult, if not impossible, to prove that none of their New York affiliates is soliciting customers on the retailers’ behalf. However, as noted above, DTP has set forth a method (contractual prohibition and annual certification) through which the retailers will be deemed to have rebutted the presumption. Obtaining the necessary information may impose a burden on the retailers, but inconvenience does not render the presumption irrebuttable. In addition, while not determinative, it is notable that the presumption sensibly places the burden on the retailers to provide information about the activities of their own affiliates—information that DTP would have significant difficulty uncovering on its own (see Lavine v Milne, 424 US 577, 585 [1976]).

In sum, plaintiffs have failed to demonstrate that the statute is facially unconstitutional under either the Commerce or the Due Process Clause.

Accordingly, in both cases, the judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

Smith, J. (dissenting).

The rules that govern this case are laid down in a series of United States Supreme Court decisions and are not in dispute. Under the Commerce Clause, a state may require an out-of-state retailer to collect use tax from in-state purchasers only if the retailer has a physical presence within the state (National Bellas Hess, Inc. v Department of Revenue of Ill., 386 US 753 [1967]; Quill Corp. v North Dakota, 504 US 298, 309-319 [1992]). The solicitation of customers for the retailer by in-state sales representatives counts as a physical presence, even where the sales representatives are independent contractors (Scripto, Inc. v Carson, 362 US 207 [1960]; Tyler Pipe Industries, Inc. v Washington State Dept. of Revenue, 483 US 232, 250-251 [1987]; cf. Matter of Orvis Co. v Tax Appeals Trib. of State of N.Y., 86 NY2d 165, 180 [1995]); but mere advertising by the out-of-state retailer in in-state media does not (see Quill, 504 US at 302-303 [North Dakota statute making tax obligation dependent on advertisements held invalid]). Thus, the majority correctly summarizes the law by saying that “if New York residents were merely engaged to post passive advertisements on their websites” no tax could be collected, but that a vendor who “is paying New York residents to actively solicit business in this state” may be required to remit tax (majority op at 596).

Our task here is to decide whether certain New York-based websites—Overstock’s “Affiliates” and Amazon’s “Associates”—are the equivalent of sales agents, soliciting business for Overstock and Amazon, or are only media in which Overstock and Amazon advertise their products. I think they are the latter.

The Overstock and Amazon links that appear on websites owned by New York proprietors serve essentially the same function as advertising that a more traditional out-of-state retailer might place in local newspapers. The websites are not soliciting customers for Overstock and Amazon in the fashion of a local sales agent. Of course the website owners solicit business for themselves; they encourage people to visit their websites, just as a newspaper owner would seek to boost circulation. But there is no basis for inferring that they are actively soliciting for the out-of-state retailers.

It does not make sense to envision a website owner trying to persuade members of the public, as a sales agent would, that Overstock and Amazon are high quality merchants that the public should want to do business with: persuasion of that sort does the website owner no good. A traditional sales agent—say, a vacuum cleaner salesman—would promote a particular brand of vacuum cleaner so that customers would order the product through him and he would get a commission. But no website owner promotes Overstock or Amazon for a similar reason, because everyone who wants to buy from either of those firms can go to the retailer’s website directly. It is true, as the majority mentions (majority op at 595), that certain kinds of website owners—churches and schools, for example—may ask their supporters to show their loyalty by using the website when they buy from Amazon, but that is not the same as soliciting business that Amazon would not otherwise get. In any event, a rule applicable to websites generally cannot be justified on the basis of the special characteristics of volunteer-supported organizations.

The statute at issue here tries to turn advertising media into an in-state sales force through a presumption. The statute says that a seller “shall be presumed to be soliciting business through an independent contractor or other representative” if it enters an agreement under which a New York resident “for a commission or other consideration, directly or indirectly refers potential customers, whether by a link on an internet website or otherwise” (Tax Law § 1101 [b] [8] [vi]). But of course a statutory presumption cannot by itself permit a state to do what the United States Constitution forbids. To presume that every website that has an agreement under which it carries an Overstock or Amazon link is a sales agent for Overstock or Amazon would be to nullify the rule that advertising in in-state media is not the equivalent of physical presence.

Read literally, the statute would reach essentially all Internet advertising that links to a seller’s website: it includes any agreement for referral of customers, by a link or otherwise, “for a commission or other consideration.” Since this literal reading would unquestionably render the statute unconstitutional, the Department of Taxation and Finance has adopted a narrowing construction, largely ignoring the words “or other consideration,” and applying the presumption only where the website receives a commission or similar compensation—i.e., where “the consideration for placing the link on the Web site is based on the volume of completed sales generated by the link” (NY St Dept of Taxation & Fin Mem No. TSB-M-08[3]S at 2). The narrowing construction, in my view, does not save the statute.

It was no doubt true before the Internet existed that advertising was usually sold for a flat fee, while sales agents usually worked on commission, but that has changed. When an advertisement takes the form of a link on a website, it is easy, as well as efficient, for the advertiser to compensate the website on the basis of results. But the link is still only an ad. It seems quite unlikely, and the record contains no evidence, that compensation “based on the volume of completed sales” is an unusual way of charging for web advertising, or that such compensation is primarily associated with active solicitation on the seller’s behalf by the website owner.

A number of tests have been stated for deciding the validity of a statutory presumption. In People v Leyva (38 NY2d 160, 165-166 [1975]), we described certain United States Supreme Court cases as requiring “a rational connection between the facts which are proved and the one which is to be inferred with the aid of the presumption” (see Tot v United States, 319 US 463, 467-468 [1943]; United States v Romano, 382 US 136, 139-141 [1965]), and others as requiring a “substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend” (Leary v United States, 395 US 6, 36 [1969]). New York, according to the Leyva case, “has exacted an even higher standard of rational connection,” one that “must assure ‘a reasonably high degree of probability’ that the presumed fact follows from those proved directly” (38 NY2d at 166, quoting People v McCaleb, 25 NY2d 394, 404 [1969]).

I do not think it necessary to decide here what test should apply to a presumption enacted by a state for the purpose of expanding its own power over interstate transactions (though I would think it should be a relatively demanding one); whatever the test is, this statute fails. To infer, from an agreement to put a link on a website and to compensate the website owner in proportion to the resulting sales, that the website owner is actively soliciting business for the seller “is so strained as not to have a reasonable relation to the circumstances of life as we know them” (Tot v United States, 319 US at 468).

I would therefore hold that the statute challenged in this litigation is invalid under the Commerce Clause.

Judges Graffeo, Read and Pigott concur with Chief Judge Lippman; Judge Smith dissents in an opinion; Judge Rivera taking no part.

In each case: Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.

      . Overstock suspended its Affiliates program (for those who provided a New York address) shortly after the enactment of the Internet tax at issue here.

      . The presumption only applies in the first instance to a company that has sold at least $10,000 in products or services as the result of such referrals.


author: Graffeo, J.

text:
    [987 NE2d 268, 964 NYS2d 491]
    The People of the State of New York, Respondent, v Kirk Hanley, Appellant.
    Argued February 12, 2013;
    decided March 28, 2013

      POINTS OF COUNSEL

      Dechert LLP, New York City (Matthew L. Mazur and Robert J. Jossen of counsel), and Office of the Appellate Defender (Richard M. Greenberg of counsel) for appellant.
    I. Kirk Hanley’s kidnapping conviction must be dismissed because it is based upon the same conduct as, and is incidental to, his conviction for reckless endangerment. (People v Cassidy, 40 NY2d 763; People v Geaslen, 54 NY2d 510; People v Gonzalez, 80 NY2d 146; People v Cain, 76 NY2d 119; People v Leonard, 19 NY3d 323; People v Smith, 47 NY2d 83; People v Rodriguez, 70 NY2d 523; People v Miles, 23 NY2d 527.) II. Kirk Hanley did not forfeit his kidnapping merger claim by pleading guilty to the indictment, and the merger issue may be raised for the first time on appeal. (People v Patterson, 39 NY2d 288; People v Hansen, 95 NY2d 227; People v Plunkett, 19 NY3d 400; People v Brown, 156 AD2d 204; People v Plummer, 122 AD2d 285; People v Rios, 60 NY2d 764; People v Ahmed, 66 NY2d 307; Johnson v Zerbst, 304 US 458; People v Taylor, 65 NY2d 1; People v Morales, 148 AD2d 325.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Gina Mignola and Alan Gadlin of counsel), for respondent.
    Defendant’s merger doctrine claim is unpreserved because he never raised it before the trial court, having forfeited the claim by his guilty plea, and cannot provide any basis for relief on the incomplete record available. In any event, kidnapping was not incidental because defendant’s main objective was to take a woman hostage to avoid capture by the police. (People v Gonzalez, 80 NY2d 146; People v Bussey, 19 NY3d 231; People v Cassidy, 40 NY2d 763; People v Becoats, 17 NY3d 643; People v

      Hawkins, 11 NY3d 484; People v Martin, 50 NY2d 1029; People v Grega, 72 NY2d 489; People v Michael, 48 NY2d 1; People v Kruppenbacher, 81 AD3d 1169.)
   OPINION OF THE COURT

Graffeo, J.

The issue in this appeal is whether a defendant charged with kidnapping and another offense must preserve his argument that the kidnapping count merged with the other crime. We hold that preservation is required because the mode of proceedings exception is not applicable to such a claim.

In 2008, defendant Kirk Hanley was a 21-year-old college student attending City College in Manhattan. Defendant had a history of mental health problems and in his journal he stated that he admired notorious mass murderers such as Timothy McVeigh and the Columbine killers. His fantasies took a step toward reality in April 2008 when defendant launched a plot to commit a school shooting at City College so that he could “die in a blaze of glory.” In furtherance of his plan, defendant acquired a six-shot, .44 caliber revolver and two interchangeable six-shot cylinders that would allow him to fire 18 bullets without the need to reload. He explained in his journal that he wanted to kill at least five persons at the school in hopes of “trigger-ting] a race war.”

In furtherance of his plan, defendant loaded the gun and cylinders with bullets and headed to City College. There he met a female acquaintance near the school’s financial aid office and revealed his intentions to her. Defendant showed her the gun and handed her two suicide notes that he had written. Upon hearing defendant’s disturbing disclosure, she told defendant that she had to go into the financial aid office, where she immediately divulged defendant’s plan to a school employee. The police were summoned and arrived quickly at the scene.

As the police officers approached defendant, he brandished the fully-loaded handgun, yanked a nearby woman out of her seat, pointed the pistol at her head and threatened to kill her if anyone moved. Defendant begged the police to shoot him and, when that didn’t occur, he freed the hostage and pointed the gun at himself. Two police officers eventually convinced defendant to relinquish the firearm. When taken into custody, defendant reiterated his desire for the police to kill him and declared that the Columbine killers were his heroes.

A grand jury indicted defendant for second-degree kidnapping, two counts of second-degree weapon possession and first-degree reckless endangerment. After extensive psychiatric evaluations, defendant was found competent to proceed to trial. Defense counsel filed a notice of intent to present psychiatric evidence.

Instead of proceeding to trial, defendant abandoned his potential defenses and pleaded guilty to the indictment after the court promised to impose a determinate prison sentence between 12 and 15 years on the kidnapping charge, with five years of postrelease supervision, together with lesser concurrent sentences on the remaining offenses. During the plea colloquy, defendant admitted that he “held another person at gunpoint against [her] will.” The court sentenced defendant to an aggregate prison term of 14 years and five years of postrelease supervision.

On appeal, defendant sought reversal of the kidnapping conviction, arguing that his restraint of the female hostage was allegedly incidental to the conduct constituting reckless endangerment and, therefore, the kidnapping count “merged” with the reckless endangerment offense. The Appellate Division declined to address the merger theory since defendant’s entry of a guilty plea forfeited this claim and the lack of a trial record rendered the issue unreviewable (85 AD3d 659 [2011]). A Judge of this Court granted defendant leave to appeal (18 NY3d 994 [2012]) and we now affirm.

As a general rule, our “Court does not consider claims of error not preserved by appropriate objection in the court of first instance” (People v Becoats, 17 NY3d 643, 650 [2011], cert denied 566 US —, 132 S Ct 1970 [2012]). A narrow exception exists for “so-called ‘mode of proceedings’ errors” (People v Kelly, 5 NY3d 116, 119 [2005]). The exception encompasses only “the most fundamental flaws” (People v Becoats, 17 NY3d at 651) that implicate “jurisdictional matters ... or rights of a constitutional dimension that go to the very heart of the process” (People v Parilla, 8 NY3d 654, 659 [2007] [internal quotation marks omitted]; see People v Patterson, 39 NY2d 288, 295-296 [1976], affd 432 US 197 [1977]). Aside from this “tightly circumscribed class” of claims (People v Kelly, 5 NY3d at 120), we have consistently held that other types of legal issues—including most “errors of constitutional dimension” (People v Alvarez, 20 NY3d 75, 81 [2012])—must be preserved in the trial court.

Defendant concedes that he did not preserve his merger argument in Supreme Court but maintains that we should review its merits because the failure to apply the merger doctrine constitutes a mode of proceedings error premised on due process and double jeopardy concerns. The People dispute this contention, claiming that preservation should apply since the merger doctrine is a judicially-created maxim that is nonjurisdictional in nature and does not affect any fundamental constitutional protections or the integrity of the criminal proceeding.

From a historical perspective, the crime of kidnapping had a broad reach because it included “any restraint” (People v Levy, 15 NY2d 159, 164 [1965], cert denied 381 US 938 [1965]). As a result, it could “literally overrun several other crimes”—most notably robbery or rape—“since detention and sometimes confinement, against the will of the victim, frequently accompany” those offenses (id.). When Levy was decided, the minimum sentence for kidnapping was 20 years to life, a punishment more severe than that permitted for rape or robbery (see id.). Hence, prosecutors were able to charge a defendant with kidnapping “in order to expose him to the heavier penalty” even if the underlying criminal conduct constituted a robbery, rape or some other offense carrying a lesser term of incarceration (People v Cassidy, 40 NY2d 763, 765 [1976]).

This Court created the merger doctrine to rectify this problem of overcharging (see People v Levy, 15 NY2d at 164-165). The aim of merger is to prohibit a “ ‘conviction for kidnapping based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts’ ” and independent criminal responsibility for kidnapping may not fairly be attributed to the accused (People v Bussey, 19 NY3d 231, 237 [2012], quoting People v Cassidy, 40 NY2d at 767). Although each case should be considered independently, a kidnapping is generally deemed to merge with another offense only “where there is minimal asportation immediately preceding” the other crime or “where the restraint and underlying crime are essentially simultaneous” (People v Gonzalez, 80 NY2d 146, 153 [1992]). But where “the abduction and underlying crime are discrete” or “the manner of detention is egregious, regardless of other considerations,” there is no merger and the kidnapping conviction should be sustained (id.).

Applying this precedent, we believe that the merger doctrine does not fit within the purpose of the mode of proceedings exception to the preservation rule. Merger is a judicially-devised concept premised on fundamental fairness and an aversion to prosecutorial abuse. It is designed to prevent inordinately punitive sentences (see People v Levy, 15 NY2d at 164), but it is not jurisdictional in nature and does not implicate any fundamental constitutional concerns that strike at the core of the criminal adjudicatory process. As such, it is not akin to the types of claims that have been classified as mode of proceedings errors.

In light of our case law on preservation, all four Appellate Divisions have concluded that a merger claim must be raised in the trial court (see e.g. People v Leiva, 59 AD3d 161 [1st Dept 2009], lv denied 12 NY3d 818 [2009]; People v Rambali, 27 AD3d 582, 583 [2d Dept 2006], lv denied 7 NY3d 761 [2006]; People v Kruppenbacher, 81 AD3d 1169, 1170 [3d Dept 2011], lv denied 17 NY3d 797 [2011]; People v Nelson, 57 AD3d 1441, 1442 [4th Dept 2008]). We employed a similar rationale in People v Grega (72 NY2d 489, 497 n 2 [1988]). Defendant has offered no compelling justification for deviating from this established view and we see no valid reason to do so. Consequently, because the preservation rule applies to a merger claim in a kidnapping prosecution, defendant's failure to assert the claim in Supreme Court precludes review by our Court (see CPL 470.05 [2]; 470.35 [1]).

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

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

Order affirmed.

      . The sentence consisted of 14 years (along with five years of postrelease supervision) for kidnapping; seven years (and five years of postrelease supervision) for each count of weapon possession; and 1 to 3 years for reckless endangerment.

      . Examples include: jurisdictional issues (see e.g. People v Correa, 15 NY3d 213, 222 [2010]; People v Pierce, 14 NY3d 564, 570 n 2 [2010]; People v Kalin, 12 NY3d 225, 229 [2009]; People v Carvajal, 6 NY3d 305, 312 [2005]); double jeopardy (see People v Williams, 14 NY3d 198, 220-221 [2010], cert denied 562 US —, 131 S Ct 125 [2010]); constitutional speedy trial (see People v Blakley, 34 NY2d 311, 315 [1974]); shifting the People’s burden of proof to the defense (see People v Patterson, 39 NY2d at 296); delegation of a judicial function (see People v Ahmed, 66 NY2d 307, 310-311 [1985]); prohibiting the defense from meaningful participation in the criminal proceeding (see People v O’Rama, 78 NY2d 270, 279 [1991]); and the imposition of an illegal sentence (see People v Samms, 95 NY2d 52, 56 [2000]).

      . In light of our preservation determination, it is unnecessary for us to consider whether a guilty plea forfeits a merger claim (see generally People v Konieczny, 2 NY3d 569, 573-574 [2004] [a guilty plea generally forfeits appellate review of nonjurisdictional defects in the underlying proceedings]) or whether merger can be raised prior to a guilty verdict (see People v Morales, 148 AD2d 325, 326-327 [1st Dept 1989]).


text:
    [987 NE2d 272, 964 NYS2d 495]
    The People of the State of New York, Respondent, v Keith A. Adams, Appellant.
    Argued February 13, 2013;
    decided March 28, 2013

      POINTS OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), for appellant.
    I. The mandatory legal relationship between the prosecutor (the Monroe County District Attorney) and the complainant (a sitting Rochester City Court Judge) created a per se conflict of interest (the appearance of impropriety itself), and the motion court erred by refusing to grant defendant’s request for a special prosecutor. (Matter of Schumer v Holtzman, 60 NY2d 46; Berger v United States, 295 US 78; Matter of Curry v Hosley, 86 NY2d 470; People v Zimmer, 51 NY2d 390; People v Fielding, 158 NY 542; People v Di Falco, 44 NY2d 482; People v Baker, 99 AD2d 656; People v Shinkle, 51 NY2d 417; People v Schrager, 74 Misc 2d 833; Matter of Brostoff v Berkman, 79 NY2d 938.) II. Based upon the wishes of the complainant (a sitting Rochester City Court Judge), the Monroe County District Attorney refused to offer defendant a plea to a reduced charge. This conduct caused actual prejudice to defendant arising from a demonstrated conflict of interest, and the motion court erred by denying his request for a special prosecutor. (Weatherford v Bursey, 429 US 545; People v Urbaez, 10 NY3d 773; People v Dietze, 75 NY2d 47; People v Shack, 86 NY2d 529; People v Duran, 25 Misc 3d 1210[A], 2009 NY Slip Op 52020[U]; People v Seaberg, 74 NY2d 1; People v Selikoff, 35 NY2d 227; Matter of Sedore v Epstein, 56 AD3d 60; Kinberg v Kinberg, 48 AD3d 387; People v Robinson, 27 Misc 3d 635.) III. The motion court erred when it denied defendant’s request for the appointment of a special prosecutor without conducting any hearing on his assertion that the prosecutor was improperly treating him more severely than similarly-situated defendants. (People v Gruden, 42 NY2d 214; People v Cahill, 2 NY3d 14; People v Eboli, 34 NY2d 281; People v Cruz, 55 AD2d 921.)

      Sandra Doorley, District Attorney, Rochester (Kelly Wolford and Leslie E. Swift of counsel), for respondent.
    There should be another affirmance because defendant was properly refused a special prosecutor as correctly found by County Court on appeal. (People v Keeton, 74 NY2d 903; People v Gray, 86 NY2d 10; People v Thomas, 50 NY2d 467; People v Baumann & Sons Buses, Inc., 6 NY3d 404; People v Michael, 48 NY2d 1; People v Martin, 50 NY2d 1029; People v Carncross, 14 NY3d 319; Matter of Holtzman v Goldman, 71 NY2d 564; People v Gilmour, 98 NY2d 126; Matter of Johnson v Pataki, 91 NY2d 214.)
   OPINION OF THE COURT

Pigott, J.

On September 20, 2009, complainant, a sitting Rochester City Court Judge, accused defendant, her neighbor and ex-paramour, of committing a crime by sending her three offensive text messages by cell phone earlier that day. The messages were vulgar and personal in nature, and unrelated to complainant’s judicial duties. Defendant was charged, by way of an information/complaint filed in Rochester City Court, with two misdemeanor counts of aggravated harassment in the second degree (Penal Law § 240.30 [1] [a], [b]). All the Rochester City Court Judges recused themselves from the case. A Monroe County Court Judge presided over the arraignment.

Almost two months elapsed, and no plea bargain could be reached. At this point, at defense counsel’s request, the case returned to Rochester City Court, where a visiting judge from a neighboring county was assigned, without objection, to preside over pretrial hearings in City Court. The parties remained at an impasse, despite numerous efforts by defense counsel to reach a plea deal.

In January 2010, the Public Defender filed an omnibus motion including a request that the Monroe County District Attorney be disqualified “on the grounds of actual prejudice and the existence of a conflict of interest” and that a special prosecutor be appointed. The motion also requested the assignment of new defense counsel, on the basis of the conflicting duties of the Public Defender to cross-examine complainant vigorously and to represent indigent clients seeking favorable treatment from her in City Court.

City Court granted the request for the assignment of new defense counsel; the Public Defender’s office was relieved and an attorney from a neighboring county was assigned to represent defendant. However, defendant’s motion to disqualify the Monroe County District Attorney’s office and for appointment of a special prosecutor, pursuant to County Law § 701 (1), was denied, without prejudice to the filing of such a motion in County Court.

The new defense counsel spoke with the District Attorney’s office regarding a possible settlement of the case, in which defendant would plead guilty to harassment in the second degree, a violation, in return for a sentence that would include 40 hours’ community service and psychiatric treatment. As defense counsel later recalled their conversation, the prosecutor told him that, while in most cases this would be an adequate resolution, he was rejecting the offer “due to the position of the victim.” Defense counsel then spoke with complainant herself, who told him that she was “not willing to reduce the charges” and “wanted to go to trial.” No plea offers were extended to defendant.

In February 2010, defendant renewed his disqualification motion, in County Court, alleging prejudice and the appearance of impropriety. Defendant contended “that the District Attorney’s office is in a conflict of interest position; to wit: By giving undue weight to the wishes of the victim in screening their case, the District Attorney’s office is no longer acting as a fair and impartial official.”

Counsel recounted the communications he had had with the District Attorney’s office in which the prosecutor stated, in essence, that complainant was unwilling to accept a reduced charge. In an accompanying affidavit, defendant’s original counsel from the Public Defender’s office stated that, in his view, the District Attorney’s office was treating complainant’s wishes much differently than it would any other victim’s. The original defense counsel pointed out that the District Attorney’s office, like his own office, appears before the complainant judge frequently each day and “would prefer not to engender any hostility from her.” He opined that the District Attorney’s office was

“forced to be an advocate for her, . . . beyond what they would normally do were she not a judge ... In any other case, the District Attorney’s Office would have offered an ACD or violation with an Order of Protection. However, the ADA assigned to this matter has said that after speaking with the complainant, they would make no offer. In my twelve years of experience handling criminal cases in this county, I have never seen a similarly situated defendant receive no offer of an ACD or Violation. The District Attorney’s office clearly feels constrained in how they can handle this matter due to the position of the complainant.”

In response, though generally denying the allegation that defendant was being singled out for harsh treatment, the District Attorney’s office did not specifically rebut the allegation that it consistently offered to accept pleas to a reduced charge in comparable cases. Nor did it offer an example of any other circumstance when it had refused to offer a plea to a violation or agree to dispose of the case by ACD in a comparable misdemeanor case.

County Court denied defendant’s motion for the appointment of a special prosecutor. The case returned to City Court, where the visiting judge tried once more to facilitate a plea settlement. These efforts were unsuccessful and the case proceeded to a jury trial in City Court. Defendant was convicted of one count of aggravated harassment in the second degree. City Court sentenced defendant to time served and a one-year conditional discharge; an order of protection was filed.

Defendant appealed to County Court, which affirmed the judgment of conviction. A Judge of this Court granted defendant leave to appeal and we now reverse.

“The courts, as a general rule, should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence” (Matter of Schumer v Holtzman, 60 NY2d 46, 55 [1983] [emphasis added]). The latter phrase refers to the “opportunity for abuse of confidences entrusted to [an] attorney” (People v Shinkle, 51 NY2d 417, 420 [1980], cited in Schumer). In general, “[t]he objector should demonstrate actual prejudice or so substantial a risk thereof as could not be ignored” (Schumer, 60 NY2d at 55).

However, in rare situations, the appearance of impropriety itself is a ground for disqualification, as our case law recognizes, when the appearance is such as to “discourage[ ] public confidence in our government and the system of law to which it is dedicated” (People v Zimmer, 51 NY2d 390, 396 [1980]). In a case of that nature, “[d]efendant[s], and indeed the public at large, are entitled to protection against the appearance of impropriety” (Shinkle, 51 NY2d at 421). We are persuaded by the unique circumstances that this is such a case.

Although no constitutional right to a plea bargain exists (see Lafler v Cooper, 566 US —, —, 132 S Ct 1376, 1395 [2012]), an appearance of impropriety may arise when the record provides an objective basis to question whether the prosecutor is exercising pretrial prosecutorial discretion in an evenhanded manner, based on the merits of the case or other legitimate prosecutorial concerns. Here, while we do not find that any actual impropriety occurred, there is an unacceptably great appearance of impropriety—the appearance that the District Attorney’s office refused to accept a reduced charge because the complainant was a sitting judge who demanded that the matter go to trial, rather than because a trial was, in its own disinterested judgment, appropriate.

The complainant was a City Court Judge who had the authority to preside over cases involving this District Attorney’s office, and the criminal charges were unrelated to her official position, so that her status as a judge should not have been a factor in the resolution of the case. Nor was there anything unique or unusual about the charges, since they involved communications between two people who had formerly been in an intimate relationship—a scenario frequently seen in harassment cases. However, despite protracted and repeated plea negotiations, the District Attorney’s office did not offer defendant a reduced charge or agree to a plea that included a favorable sentence, such as an ACD, community service, or the like. While this alone would not be enough to raise an appearance of impropriety, there are other aspects of the record that do. Defendant’s original counsel from the Public Defender’s office, who had represented defendants in cases involving this District Attorney’s office for more than a decade, averred that he had never before seen the office take such a hard-line position in a case involving comparable charges and a similar defendant. Although provided ample opportunity to respond, the District Attorney’s office replied with nothing more than conclusory denials, failing to rebut the allegations with even a single example of a comparable case it had similarly refused to resolve with an ACD or a plea to a violation. Because the District Attorney’s office failed to take steps to dispel the appearance of inappropriate disparate treatment, we conclude that this is one of those rare cases in which a significant appearance of impropriety was created, requiring disqualification.

Accordingly, the order of County Court should be reversed and the case remitted to Rochester City Court for further proceedings in accordance with this opinion.

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

Order reversed and case remitted to Rochester City Court for further proceedings in accordance with the opinion herein.