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

text:
    [991 NE2d 692, 969 NYS2d 834]
    The People of the State of New York, Respondent, v Thomas Lee, Appellant.
    Argued May 1, 2013;
    decided May 30, 2013

      POINTS OF COUNSEL

      Cleary Gottlieb Steen & Hamilton LLP, New York City (Arminda B. Bepko and David E. Brodsky of counsel), and Office of the Appellate Defender (Richard M. Greenberg and Margaret E. Knight of counsel) for appellant.
    I. The appointment of a biased interpreter was improper, where the court refused to inquire into the availability of disinterested interpreters and failed to set up a proper mechanism to monitor the accuracy of the translation. (Matter of James L., 143 AD2d 533; Matter of Yovanny L., 33 Misc 3d 894; People v Constantino, 153 NY 24; Advanced Tech. Incubator, Inc. v Sharp Corp., 701 F Supp 2d 861; People v Ranieri, 149 Misc 2d 948; People v Branch, 46 NY2d 645; People v Furey, 18 NY3d 284; Matter of Beer Garden v New York State Liq. Auth., 79 NY2d 266; Scott v Brooklyn Hosp., 93 AD2d 577; People v Meyer, 78 AD2d 662.) II. The evidence permitted by the trial court under People v Sandoval (34 NY2d 371 [1974]) was excessive and overwhelmingly prejudicial. (People v Williams, 56 NY2d 236; People v Mayrant, 43 NY2d 236; People v Cooke, 101 AD2d 983; People v Rahman, 62 AD2d 968, 46 NY2d 882; People v Clark, 42 AD3d 957; People v Gonzalez, 221 AD2d 203; People v Smith, 18 NY3d 588; People v Ellis, 94 AD2d 652; People v Gamble, 182 AD2d 703; People v Mitchell, 161 AD2d 247.) III. The trial court erred by refusing to instruct the jury not to decide the case solely on the basis of which side it believed. (People v Russell, 266 NY 147; People v Warren, 76 NY2d 773; People v Brown, 30 AD3d 609; People v Victor, 62 NY2d 374; People v Fish, 234 AD2d 890; People v Vera, 94 AD2d 728; People v Knowell, 94 AD2d 255; People v Khan, 68 NY2d 921.)

      Cyrus R. Vance, Jr., District Attorney, New York City (John B.F. Martin and Sheryl Feldman of counsel), for respondent.
    I. Defendant’s complaints about the official court interpreter are largely unpreserved and entirely meritless. (Matter of James L., 143 AD2d 533; People v Melendez, 8 NY3d 886; People v Robles, 86 NY2d 763; People v Odum, 67 AD3d 1465; People v Wilson, 188 AD2d 405; People v Ko, 133 AD2d 850; People v McLean, 15 NY3d 117; People v Kinchen, 60 NY2d 772; People v Olivo, 52 NY2d 309; People v Abar, 99 NY2d 406.) II. The Appellate Division correctly concluded that the trial court’s Sandoval ruling was a proper exercise of its discretion. (People v Hayes, 97 NY2d 203; People v Walker, 83 NY2d 455; People v Rahman, 62 AD2d 968, 46 NY2d 882; People v Hawkins, 11 NY3d 484; People v Grant, 7 NY3d 421; People v Kello, 96 NY2d 740; People v Claudio, 64 NY2d 858; People v Mattiace, 77 NY2d 269; People v Williams, 12 NY3d 726; People v Williams, 56 NY2d 236.) III. The court properly instructed the jury on the burden of proof. (People v Allen, 69 NY2d 915; People v Nuccie, 57 NY2d 818; People v Dory, 59 NY2d 121; People v Umali, 10 NY3d 417; People v Drake, 7 NY3d 28; People v Feerick, 93 NY2d 433.)
   OPINION OF THE COURT

Pigott, J.

At issue on this appeal is whether the trial court abused its discretion in refusing defense counsel’s request to replace a state-employed court interpreter because he was acquainted with the complainants. Under the circumstances of this case, we conclude that it did not.

Defendant Thomas Lee and a codefendant, Victoria Chin, were charged with burglary in the second degree and grand larceny in the third degree for stealing several thousand dollars’ worth of property from the Manhattan apartment of complainants, a husband and wife. At trial, the People called complainant wife, who spoke Cantonese. Prior to her testimony, the court had arranged for a court interpreter to translate her testimony into English. On the day of testimony, the interpreter apprised the court that he was a “friend” of complainant husband, who had introduced the interpreter’s father to construction loan officials. The interpreter had also met complainant wife, when she had on occasion stopped in on business meetings he had with her husband. He did not meet with either of them socially. The interpreter also stated that he knew the husband had “served federal time,” but denied feeling uncomfortable translating for the wife and stated he had no knowledge of the facts of the case.

The court permitted defense counsel to voir dire the interpreter, who denied that he personally had any business relationship with the husband. Defense counsel nevertheless sought to remove the interpreter because of the relationship and the interpreter’s knowledge of complainant husband’s “intimidating violent nature,” which, in counsel’s view, could affect the interpreter’s ability to translate objectively. The court denied the request, observing that the interpreter was a state employee who had taken an oath to fairly discharge his duties as a court interpreter.

Defendant was found guilty of the burglary and grand larceny counts. The Appellate Division affirmed and rejected defendant’s request for a new trial based on the trial court’s failure to appoint a new interpreter, observing that “the court and defense counsel thoroughly questioned the court interpreter about any possibility of bias, and there is no reason to believe that defendant was prejudiced by the use of this interpreter” (89 AD3d 633, 633-634 [1st Dept 2011]). The court noted that the interpreter was a “career court employee who was presumably well aware of his duty to translate testimony verbatim and accurately,” that he did not know the facts of the case, and that there was “substantial corroborating evidence through the testimony of another witness and video surveillance films” to sustain defendant’s conviction (id. at 634). A Judge of this Court granted leave to appeal (19 NY3d 975 [2012]), and we affirm.

A trial court is obligated to appoint a court interpreter in all criminal cases when it “determines that a party or witness . . . is unable to understand and communicate in English to the extent that he or she cannot meaningfully participate in the court proceedings” (Uniform Rules for Trial Cts [22 NYCRR] § 217.1 [a]). Prior to engaging in their duties, court interpreters must execute and file a constitutional oath of office to faithfully discharge the duties of the position of court interpreter. Just as the trial court has the discretion to determine whether an interpreter is necessary in the first instance (see Uniform Rules for Trial Cts [22 NYCRR] § 217.1), or is qualified to serve in that capacity (see People v Catron, 143 AD2d 468, 468 [3d Dept 1988], lv denied 73 NY2d 853 [1988]), the trial court is also in the best position to determine whether an interpreter, once appointed, is biased in favor of a party or witness, thereby necessitating removal and replacement (see People v Rivera, 268 AD2d 538, 539 [2d Dept 2000], lv denied 95 NY2d 802 [2000]).

Here, the trial court did not abuse its discretion in denying defendant’s request that the court interpreter be removed. The interpreter complied with his ethical obligation by notifying the court that he was a friend of complainant husband. Upon receiving that information, the court questioned the interpreter as to whether he (1) knew the facts of the case, and (2) would be uncomfortable translating for complainant wife. Having received a negative answer to both questions, the trial court allowed defense counsel to question the interpreter. Satisfied that its questioning and that of defense counsel uncovered no bias on the part of the interpreter, the court properly exercised its discretion in not removing him.

Defendant’s reliance on Matter of James L. (143 AD2d 533 [4th Dept 1988]) is misplaced. In that case, the trial court appointed the complainant’s son to serve as an ad hoc interpreter pursuant to Judiciary Law § 387 to translate for the complainant. In doing so, however, the trial court failed to inquire “into the extent of his bias,” ascertain his “qualification to translate,” or caution the son “to translate exactly what the primary witness had said” (id. at 533-534).

Here, the court questioned the interpreter concerning his relationship with complainants, and there was no need to ascertain his qualifications or warn him to translate exactly what complainant wife said. As a state employee who had taken an oath to interpret, it can be presumed that the interpreter knew his ethical/professional obligations to translate the testimony verbatim. On the facts of this case, the court could have reasonably found that the danger the interpreter would distort complainant wife’s testimony was remote, particularly because he possessed no knowledge concerning the facts of the case.

We have considered defendant’s remaining arguments and conclude that they are without merit.

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

Rivera, J. (dissenting).

Where, as here, a court interpreter is revealed to have prior personal or pecuniary relationships with the complainants in a criminal matter, there exists, at a minimum, a substantial claim of an appearance of bias, if not actual bias. In my view, the trial court’s failure to disqualify the court interpreter and substitute an alternate interpreter, coupled with the judge’s refusal to provide for an adequate mechanism to confirm the accuracy of the challenged interpretation, amounted to an abuse of discretion. Therefore, I respectfully dissent.

A trial court must appoint an interpreter in cases where a party or witness “is unable to understand and communicate in English to the extent that he or she cannot meaningfully participate in the court proceedings” (Uniform Rules for Trial Cts [22 NYCRR] § 217.1 [a]). The court interpreter’s role in a trial is thus significant, and an interpreter potentially has enormous impact on the proceedings. Indeed, it is the interpreter’s words which are heard by the jury and judge and become part of the evidentiary record.

It is the duty of an interpreter to faithfully communicate verbatim the testimony of a non-English speaking witness (see Unified Court System Court Interpreter Manual and Code of Ethics Appendix J, Canons of Professional Responsibility for Court Interpreters Canon 1 [Dec. 2008], available at http:// www.nycourts.gov/COURTINTERPRETER/pdfs/Courtlnterpreter Manual.pdf [accessed May 24, 2013]). In fulfilling this duty, a court interpreter must avoid serving where he or she may be compromised due to conflict or bias. Canon 6 of the Unified Court System’s Canons of Professional Responsibility for Court Interpreters provides that

“[c]ourt interpreters shall not engage in, nor have any interest, direct or indirect, in any activity, business or transaction, nor incur any obligation, that is in conflict, or that creates an appearance of conflict, with the proper discharge of their interpreting duties or that affects their independence of judgment in the discharge of those duties” (see Unified Court System Court Interpreter Manual and Code of Ethics Appendix J, Canons of Professional Responsibility for Court Interpreters Canon 6 [Dec. 2008], available at https://www.nycourts.gov/COURT INTERPRETER/pdfs/CourtlnterpreterManual.pdf [accessed May 24, 2013]).

Ensuring that an interpreter is qualified and unbiased is critical to safeguarding the fairness of the proceedings and the integrity of the legal system.

Here, the interpreter demonstrated a commendable level of professionalism and sensitivity to his ethical obligations when he apprised the court of his prior personal relationship and dealings with complainant husband. Specifically, he stated that he was complainant’s acquaintance, knew of complainant’s prior criminal background, had held business meetings with complainant, and that the interpreter’s father had secured financial assistance for his business from complainant. The interpreter also noted his familiarity with complainant wife—a witness herself—whose trial testimony he was called upon to interpret from Cantonese to English. The interpreter thus informed the court of both a personal and pecuniary connection to complainants, and knowledge of complainant husband’s criminal history.

Informed of this relationship, the trial court was presented with a facial violation of Canon 6 and was required to inquire and determine the best way to address this bias, actual or perceived. The majority acknowledges that it is the trial court’s responsibility to determine whether bias exists necessitating removal and replacement (see majority op at 179). They, however, conclude that Supreme Court did not abuse its discretion by denying the request to remove this interpreter. I disagree because I believe that the trial court failed to take adequate steps to ensure the accuracy of the interpretation, and to provide a mechanism to preserve the interpretation for review on any subsequent appellate challenge.

For all intents and purposes, the majority’s decision establishes an irrebuttable presumption in favor of official court interpreters under oath, regardless of the potentially compromising circumstances. If all that is necessary to overcome a reasonable claim of bias based, as is the case here, on both personal and pecuniary relationships, is reference to the interpreter’s oath and the interpreter’s lack of familiarity with the specifics of a case, parties with a reasonable suspicion for perceiving some bias would be without recourse, regardless of the strength of the claim of bias. If the fact that the interpreter has taken an oath to faithfully discharge his or her duties is sufficient to overcome a challenge of bias or conflict, then there would never be grounds to remove even the most obviously conflicted interpreter.

That an interpreter is unfamiliar with a case, relied on by the trial court and the majority in support of the failure to substitute the interpreter in this case, is similarly insufficient. The need for Canon 6 illustrates the real possibility that a court interpreter can be biased or burdened by a conflict of interest, regardless of the interpreter’s lack of knowledge of the facts of a case. Certainly a court interpreter with years of experience in the courtroom, familiar with legal terminology, the order of proceedings and testimonial evidence, would be able to ascertain the import of the witness’ testimony.

In this case, substitution of the interpreter would have resolved concerns of any actual or potential bias. However, the trial court not only refused to secure a substitute, he failed to even inquire as to the availability of such a substitute, constituting an abuse of discretion.

Of course, it is not always possible to have an interpreter available without causing undue delay to the proceedings, and potentially adversely impacting the rights of the parties. Where a court makes reasonable effort to identify a substitute interpreter, and determines that such substitute is unavailable or cannot be made available without disrupting the proceedings, circumstances may require that the court proceed with the challenged interpreter. In such case, it is essential that the court ensure that reasonable steps are taken to mitigate bias, and that the original testimony is preserved in such a manner as to permit a defendant to confirm the accuracy of the interpretation should the defendant so desire. It must also be possible for meaningful judicial review should defendant discover inaccuracies or otherwise posit a colorable argument as to the fairness of the proceedings.

Here, the trial court failed to implement a mechanism to confirm the accuracy of the interpretation, thus eliminating the possibility of appellate review of the testimony. In response to defense counsel’s concerns about the accuracy of the interpretation, the trial judge informed defense counsel that the defendant’s family and friends were parties “obviously interested in the correctness of [the] translations” and that there “was no issue whatsoever about the translation and its appropriateness,” or else the family members would have “hurdl[ed] the well” to alert counsel or the court of any inaccuracies. This reliance upon interested parties, and persons in the courtroom, cannot seriously be considered a realistic and sound method to confirm the accuracy of the witness’ testimony as interpreted. Certainly the court could not have meant to invite disruption in the courtroom. Nor could the trial judge realistically rely upon individual observers, without any apparent training in the highly skilled profession of interpreters, to serve as a “check” on the interpretation. It is unacceptable and unrealistic for a court to intend to supplant a qualified court interpreter, who the trial court had already indicated was a trusted member of the court personnel, with a person of unknown skill, and potential bias, and allegiance to a party. As the majority notes, reliance on ad hoc interpreters creates additional challenges for the courts and the parties (see Matter of James L., 143 AD2d 533 [4th Dept 1988]). Moreover, the responsibility for providing interpretive services in a criminal case lies with the court, not the defendant (Uniform Rules for Trial Cts [22 NYCRR] § 217.1).

Given the numerous languages and dialects of the parties, witnesses and others who pass through our nation’s courts daily, the courts and our society face tremendous challenges in ensuring that the courts are accessible, and that our legal system treats individuals fairly, regardless of their language abilities. The American Bar Association’s recent passage of Standards for Language Access in Courts, supported by the Conference of Chief Justices and the Conference of State Court Administrators, notes that “[a]ccess to justice is unattainable for those who are not proficient in English unless they also have access to language services that will enable them to understand and be understood” (see American Bar Association, Standards for Language Access in Courts at VIII [Feb. 2012], available at http: //www. americanbar. org/content/dam/ah a/ administrative/ legal_aid_indigent_defendants/ls_sclaid_standards_for_language _access_proposal.authcheckdam.pdf [accessed May 24, 2013]). It is to the credit of New York, and the many individuals who serve as court interpreters, that the Unified Court System provides a mechanism for interpretive services in numerous languages. However, in this case, the trial judge’s failure to properly address defendant’s claims of bias in a manner that would obviate the risk of bias, or which would allow for meaningful appellate review on a subsequent challenge, was error.

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

Order affirmed.

       This section provides, in relevant part, that
      “[i]f the services of an interpreter be required in any court and there be no unemployed official interpreter to act therein, the court may appoint an interpreter to act temporarily in such court. Such interpreter shall before entering upon his duties file with the clerk of the court the constitutional oath of office.”

      . Even those who genuinely believe they can discharge their duties without bias may, albeit unconsciously, phrase testimony in a way to sound more reasonable or less harsh to a juror’s ear. The most well-intentioned interpreter may be susceptible to the affect of bias, thus, the exhortation in Canon 6 to avoid even the appearance of conflict.

        (n. contfd)

      . Court interpreters are required to undergo testing to assess their verbal and written proficiency in English, foreign languages and basic legal terminology. Court interpreters in New York are proficient in Albanian, Arabic, Bengali, Cantonese, Croatian, Dutch, French, Greek, Haitian Creole, Hebrew, Hindi, Italian, Japanese, Korean, Mandarin, Polish, Punjabi, Romanian, Russian, Serbian, Spanish, Urdu and Wolof (see Candidate Guide to the Language Assessment Testing Program for Court Interpreting, available at http:// www.nycourts.gov/courtinterpreter/pdfs/candidateguide.pdf [accessed May 24, 2013]).

      . “New Yorkers speak more than 150 different languages and dialects. More than 30 percent of New Yorkers—almost five million people—speak a language other than English at home. Last year, utilizing the services of more than 1,000 interpreters (approximately 300 staff and more than 700 per diem interpreters) the New York courts provided interpreting services in 105 different languages” (see Court Interpreting in New York, A Plan of Action: Moving Forward at 2 [June 2011], available at http: //www.nycourts.gov/publications/pdfs/ActionPlanCourt InterpretingUpdate-2011.pdf [accessed May 24, 2013]).

        (n. cont’d)


source: Caselaw Access Project

author: Graffeo, J.

license: Public Domain

text:
    [991 NE2d 684, 969 NYS2d 826]
    Michelle Galetta, Appellant, v Gary Galetta, Respondent.
    Argued April 23, 2013;
    decided May 30, 2013

      POINTS OF COUNSEL

      Barney & Affronti, LLP, Rochester (Francis C. Affronti of counsel), for appellant.
    I. Summary judgment should have been granted to Michelle Galetta determining the prenuptial agreement to be invalid and unenforceable because there is no proof the notary who took Gary Galetta’s signature knew him or had satisfactory evidence he was the same person described in and who executed the agreement. (Matisoff v Dobi, 90 NY2d 127.) II. Gary Galetta’s claim the notary’s affidavit cured the defective acknowledgment was not raised before the trial court or in his brief to the Appellate Division. Consequently the issue whether or under what circumstances the acknowledgment could be cured was not before the Court. (Ciesinski v Town of Aurora, 202 AD2d 984; Fresh Pond Rd. Assoc. v Estate of Schacht, 120 AD2d 561, 68 NY2d 802; Matter of Helles v Helles, 87 AD3d 1273; Kumar v Kumar, 96 AD3d 1323; Matter of D’Angelo v Lopez, 94 AD3d 1261; Verkey v Hebard, 99 AD3d 1205; Fischer v Zepa Consulting, 263 AD2d 946, 95 NY2d 66; Memory Gardens v D’Amico, 91 AD2d 1160.) III. A defective acknowledgment in a prenuptial agreement cannot be cured at a later point in time. (Anonymous v Anonymous, 253 AD2d 696, 93 NY2d 888; D’Elia v D’Elia, 14 AD3d 477; Leighton v Leighton, 46 AD3d 264, 10 NY3d 739; Matisoff v Dobi, 228 AD2d 200; Stein v Stein, 14 Misc 3d 453; Schoeman, Marsh & Updike v Dobi, 264 AD2d 572, 94 NY2d 944; People ex rel. Conklin v Board of R.R. Commrs., 105 App Div 273.) IV. Assuming an acknowledgment can be cured at a later date, summary judgment in this case should have been granted because the notary’s affidavit did not create a triable issue of fact. (Zuckerman v City of New York, 49 NY2d 557.)

      Kathleen P. Reardon, Rochester, for respondent.
    I. The Supreme Court did not err in determining that the prenuptial agreement was properly acknowledged and correctly denied plaintiff’s motion for summary judgment. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Alvarez v Prospect Hosp., 68 NY2d 320; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Zuckerman v City of New York, 49 NY2d 557; Matisoff v Dobi, 90 NY2d 127; Weinstein v Weinstein, 36 AD3d 797; Armstrong v Combs, 15 App Div 246; Filkins v Filkins, 303 AD2d 934; D’Elia v D’Elia, 14 AD3d 477; Anonymous v Anonymous, 253 AD2d 696.) II. The issue as to any defect in the acknowledgment as alleged by plaintiff and as cured by defendant’s proof was properly reviewed and decided by the appellate court.
      (Schoeman, Marsh & Updike v Dobi, 264 AD2d 572, 94 NY2d 944, 97 NY2d 721, 100 NY2d 508; Leighton v Leighton, 46 AD3d 264, 10 NY3d 739; Douglas Elliman-Gibbons & Ives v Kellerman, 172 AD2d 307; Lindlots Realty Corp. v County of Suffolk, 278 NY 45; Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342.) III. The Appellate Division correctly determined that a defect in a contemporaneously executed acknowledgment in a prenuptial agreement may be cured subsequent to the execution of the acknowledgment. (Matisoff v Dobi, 90 NY2d 127; Matter of Maul, 176 Misc 170, 262 App Div 941, 287 NY 694; Matter of Saperstein, 254 AD2d 88; Anonymous v Anonymous, 253 AD2d 696; Schoeman, Marsh & Updike v Dobi, 264 AD2d 572, 94 NY2d 944; Stein v Stein, 14 Misc 3d 453; D’Elia v D’Elia, 14 AD3d 477; Filkins v Filkins, 303 AD2d 934; Arizin v Covello, 175 Misc 2d 453.) IV Even if this Court believes a cure was necessary, defendant raised a triable issue of fact by providing the bank manager’s affidavit. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Soltis v State of New York, 188 AD2d 201; Gier v CGF Health Sys., 307 AD2d 729; Rivera v Anilesh, 8 NY3d 627; Halloran v Virginia Chems., 41 NY2d 386; Matter of Kellum, 52 NY 517.)
   OPINION OF THE COURT

Graffeo, J.

In this matrimonial action, plaintiff Michelle Galetta sought a determination that a prenuptial agreement she and defendant Gary Galetta signed was invalid due to a defective acknowledgment. Because we conclude that plaintiff was entitled to summary judgment declaring the agreement to be unenforceable under Domestic Relations Law § 236 (B) (3), we reverse the order of the Appellate Division, which held there was a triable question of fact on that issue.

Michelle Galetta and Gary Galetta were married in July 1997. About a week before the wedding, they each separately signed a prenuptial agreement. Neither party was present when the other executed the document and the signatures were witnessed by different notaries public. The agreement had apparently been prepared by Gary’s attorney; Michelle elected not to be represented by counsel. In substance, the parties agreed that their separate property, as listed on attached addenda, would remain separate and not subject to equitable distribution in the event of dissolution of the marriage. They also decided that neither would seek maintenance from the other. It is undisputed that the signatures on the document are authentic and there is no claim that the agreement was procured through fraud or duress.

The parties’ signatures and the accompanying certificates of acknowledgment are set forth on a single page of the document. The certificates appear to have been typed at the same time, with spaces left blank for dates and signatures that were to be filled in by hand. The certificate of acknowledgment relating to Michelle’s signature contains the boilerplate language typical of the time. However, in the acknowledgment relating to Gary’s signature, a key phrase was omitted and, as a result, the certificate fails to indicate that the notary public confirmed the identity of the person executing the document or that the person was the individual described in the document. The record does not reveal how this error occurred and apparently no one noticed the omission until the issue was raised in this litigation.

In 2010, defendant husband filed for divorce. Plaintiff wife subsequently commenced this separate action seeking a divorce and a declaration that the prenuptial agreement was unenforceable. The wife moved for summary judgment on the request for declaratory relief, contending that the agreement was invalid because Domestic Relations Law § 236 (B) (3) compels that prenuptial agreements be executed with the same formality as a recorded deed and the certificate of acknowledgment relating to the husband’s signature did not comport with Real Property Law requirements. The husband opposed the motion, asserting that the prenuptial agreement was enforceable because the language of the acknowledgment substantially complied with the Real Property Law. He submitted an affidavit from the notary public who had witnessed his signature in 1997 and executed the certificate of acknowledgment. The notary, an employee of a local bank where the husband then did business, averred that it was his custom and practice, prior to acknowledging a signature, to confirm the identity of the signer and assure that the signer was the person named in the document. He stated in the affidavit that he presumed he had followed that practice before acknowledging the husband’s signature.

Supreme Court denied the wife’s motion for summary judgment, reasoning that the acknowledgment of the husband’s signature substantially complied with the requirements of the Real Property Law. In a divided decision, the Appellate Division affirmed the order denying summary judgment on a different rationale (96 AD3d 1565 [2012]). The majority held that the certificate of acknowledgment was defective but determined that the deficiency could be cured after the fact and that the notary public affidavit raised a triable question of fact as to whether the prenuptial agreement had been properly acknowledged when it was signed in 1997. A two-justice dissent would have reversed and granted plaintiff summary judgment declaring the prenuptial agreement to be invalid because the acknowledgment was fatally defective. The dissent reasoned that the issue of whether a defect in an acknowledgment can be cured had not been preserved in the motion court but concluded, in any event, that such a deficiency cannot be cured, nor was the notary public’s affidavit sufficient to raise a question of fact if a cure had been possible. The Appellate Division granted defendant leave to appeal to this Court, certifying the question: “Was the order of this Court . . . properly made?” Because plaintiff was entitled to summary judgment declaring the prenuptial agreement to be unenforceable, we answer that question in the negative.

Prenuptial agreements are addressed in Domestic Relations Law § 236 (B) (3), which provides:

“An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.”

We interpreted this statute in Matisoff v Dobi (90 NY2d 127 [1997]), where we held that an unacknowledged postnuptial agreement was invalid. We observed that the statute recognizes no exception to the requirement that a nuptial agreement be executed in the same manner as a recorded deed and “that the requisite formality explicitly specified in Domestic Relations Law § 236 (B) (3) is essential” (id. at 132).

Real Property Law § 291, governing the recording of deeds, states that “[a] conveyance of real property ... on being duly acknowledged by the person executing the same, or proved as required by this chapter, . . . may be recorded in the office of the clerk of the county where such real property is situated.” Thus, a deed may be recorded if it is either “duly acknowledged” or “proved” by use of a subscribing witness. Because this case involves an attempt to use the acknowledgment procedure, we focus on that methodology.

The acknowledgment requirement fulfills two important purposes. First, “acknowledgment serves to prove the identity of the person whose name appears on an instrument and to authenticate the signature of such person” (Matisoff, 90 NY2d at 133). Second, it necessarily imposes on the signer a measure of deliberation in the act of executing the document. Just as in the case of a deed where the law puts in the path of the grantor “formalities to check haste and foster reflection and care . . . [h]ere, too, the formality of an acknowledgment underscores the weighty personal choices to relinquish significant property or inheritance rights, or to resolve important issues concerning child custody, education and care” (id. at 136 [internal quotation marks and citation omitted]).

We noted in Matisoff that the acknowledgment requirement imposed by Domestic Relations Law § 236 (B) (3) is onerous and, in some respects, more exacting than the burden imposed when a deed is signed (id. at 134-135). Although an unacknowledged deed cannot be recorded (rendering it invalid against a subsequent good faith purchaser for value) it may still be enforceable between the parties to the document (i.e., the grantor and the purchaser). The same is not true for a nuptial agreement which is unenforceable in a matrimonial action, even when the parties acknowledge that the signatures are authentic and the agreement was not tainted by fraud or duress (id. at 135).

With these general principles in mind, we turn to the first issue presented in this case: whether the certificate of acknowledgment accompanying defendant husband’s signature was defective. Three provisions of the Real Property Law must be read together to discern the requisites of a proper acknowledgment. Real Property Law § 292 requires that the party signing the document orally acknowledge to the notary public or other officer that he or she in fact signed the document. Real Property Law § 303 precludes an acknowledgment from being taken by a notary or other officer “unless he [or she] knows or has satisfactory evidence [ ] that the person making it is the person described in and who executed such instrument.” And Real Property Law § 306 compels the notary or other officer to execute “a certificate . . . stating all the matters required to be done, known, or proved” and to endorse or attach that certificate to the document. The purpose of the certificate of acknowledgment is to establish that these requirements have been satisfied: (1) that the signer made the oral declaration compelled by Real Property Law § 292; and (2) that the notary or other official either actually knew the identity of the signer or secured “satisfactory evidence” of identity ensuring that the signer was the person described in the document.

At the time the parties here signed the prenuptial agreement in 1997, proper certificates of acknowledgment typically contained boilerplate language substantially the same as that included in the certificate accompanying the wife’s signature: “before me came (name of signer) to me known and known to me to be the person described in and who executed the foregoing instrument and duly acknowledged to me that s/he executed the same.” The “to me known and known to me to be the person described in the document” phrase satisfied the requirement that the official indicate that he or she knew or had ascertained that the signer was the person described in the document. The clause beginning with the words “and duly acknowledged” established that the signer had made the requisite oral declaration.

In the certificate of acknowledgment relating to the husband’s signature, the “to me known and known to me” phrase was inexplicably omitted, leaving only the following statement: “On the 8 [sic] day of July, 1997, before me came Gary Galetta described in and who executed the foregoing instrument and duly acknowledged to me that he executed the same.” Absent the omitted language, the certificate does not indicate either that the notary public knew the husband or had ascertained through some form of proof that he was the person described in the prenuptial agreement. New York courts have long held that an acknowledgment that fails to include a certification to this effect is defective (see Fryer v Rockefeller, 63 NY 268 [1875] [applying predecessor to Real Property Law § 303, held that acknowledgment of deed that did not establish signer’s identity and relationship to document was invalid]; Gross v Rowley, 147 App Div 529 [2d Dept 1911], appeal denied 148 App Div 922 [1912] [acknowledgment deficient because it failed to certify that signer was person described in the instrument]; see generally People ex rel. Sayville Co. v Kempner, 49 App Div 121 [1st Dept 1900] [same]). Thus, we agree with the Appellate Division, which unanimously concluded that the certificate of acknowledgment did not conform with statutory requirements.

The husband continues to dispute that the acknowledgment is defective because he claims that it substantially complied with the Real Property Law. In support of this argument, he relies on a line of substantial compliance cases including Weinstein v Weinstein (36 AD3d 797 [2d Dept 2007]). Weinstein involved a prenuptial agreement that was signed after Real Property Law § 309-a set forth specific language to be included in an acknowledgment (see n 1, supra), yet the certificates of acknowledgment contained the former boilerplate language that had commonly been used prior to the statute. Although the acknowledgment did not track the preferred text, the Appellate Division concluded that it was nonetheless valid because the language was in substantial compliance with the new statute— which is all the statute required. There is no indication in Weinstein that any of the substantive elements of an acknowledgment were lacking—rather, in that case the parties merely used different verbiage to establish that the Real Property Law had been followed, a deviation in form (in light of Real Property Law § 309-a) but not substance. The same is not true here where a core component of a valid acknowledgment was not referenced in the certificate.

Because we conclude that the certificate of acknowledgment was defective, we address the question of whether such a deficiency can be cured and, if so, whether the affidavit of the notary public prepared in the course of litigation was sufficient to raise a question of fact precluding summary judgment in the wife’s favor. In Matisoff, a case where the parties had not attempted to have their signatures acknowledged, defendant husband similarly contended that the lack of certificates of acknowledgment had been cured by testimony both the husband and wife presented at the matrimonial trial admitting that the signatures were authentic and that the postnuptial agreement had not been signed under fraud or duress. We determined that it was unnecessary to decide whether the absence of an acknowledgment could be cured because, even if it could, the testimony from the parties was not the functional equivalent of an acknowledgment, which involves both the oral declaration of the signer and the written certificate of the official establishing that certain prerequisites were met.

Since Matisoff, the Appellate Divisions have grappled with the “cure” issue, which has largely arisen in cases where a signature was not accompanied by any certificate of acknowledgment—not in situations like this where there was a contemporaneously prepared certificate of acknowledgment but it is defective. In any event, the weight of Appellate Division authority is against permitting the absence of an acknowledgment to be cured after the fact, unless both parties engaged in a mutual “reaffirmation” of the agreement (see D’Elia v D’Elia, 14 AD3d 477 [2d Dept 2005] [where postnuptial agreement was not properly acknowledged, defendant’s attempt to cure the defect by submitting a duly-executed certificate of acknowledgment at trial was not sufficient]; Filkins v Filkins, 303 AD2d 934, 935 [4th Dept 2003] [where antenuptial agreement was not acknowledged, plaintiffs attempt to cure defect by having agreement notarized and filed after divorce action had commenced failed “because the agreement was never reacknowledged”]; Schoeman, Marsh & Updike v Dobi, 264 AD2d 572 [1st Dept 1999], lv dismissed 94 NY2d 944 [2000], lv dismissed 97 NY2d 721 [2002], lv denied 100 NY2d 508 [2003] [legal malpractice action related to Matisoff litigation] [parties to divorce action cannot obtain retroactive validation of postnuptial agreement]; Anonymous v Anonymous, 253 AD2d 696 [1st Dept 1998], lv dismissed 93 NY2d 888 [1999] [where prenuptial agreement was not acknowledged, defect could not be cured by production of acknowledgment that surfaced after matrimonial action had commenced and some 12 years after agreement was signed]).

When there is no acknowledgment at all, it is evident that one of the purposes of the acknowledgment requirement—to impose a measure of deliberation and impress upon the signer the significance of the document—has not been fulfilled. Thus, a rule precluding a party from attempting to cure the absence of an acknowledgment through subsequent submissions appears to be sound.

But this case does not involve the complete absence of an acknowledgment; rather, there was an attempt to secure an acknowledged document but there was an omission in the requisite language of the certificate of acknowledgment. A compelling argument can be made that the door should be left open to curing a deficiency like the one that occurred here where the signatures on the prenuptial agreement are authentic, there are no claims of fraud or duress, and the parties believed their signatures were being duly acknowledged but, due to no fault of their own, the certificate of acknowledgment was defective or incomplete. Although neither party submitted evidence concerning how the error occurred, we can infer from the fact that the signatures and certificates of acknowledgment are contained on a single page of the document in the same typeface that the certificates were typed or printed by the same person at the same time. Since one acknowledgment included all the requisite language and the other did not, it seems likely that the omission resulted from a typographical error. Thus, the deficiency may not have arisen from the failure of the notary public to engage in the formalities required when witnessing and acknowledging a signature. To the contrary, it may well be that the prerequisites of an acknowledgment occurred but the certificate simply failed to reflect that fact. Thus, the husband makes a strong case for a rule permitting evidence to be submitted after the fact to cure a defect in a certificate of acknowledgment when that evidence consists of proof that the acknowledgment was properly made in the first instance—that at the time the document was signed the notary or other official did everything he or she was supposed to do, other than include the proper language in the certificate. By considering this type of evidence, courts would not be allowing a new acknowledgment to occur for a signature that was not properly acknowledged in the first instance; instead, parties who properly signed and acknowledged the document years before would merely be permitted to conform the certificate to reflect that fact.

In this case, however, we need not definitively resolve the question of whether a cure is possible because, similar to what occurred in Matisoff, the proof submitted here was insufficient. In his affidavit, the notary public did not state that he actually recalled having acknowledged the husband’s signature, nor did he indicate that he knew the husband prior to acknowledging his signature. The notary averred only that he recognized his own signature on the certificate and that he had been employed at a particular bank at that time (corroborating the husband’s statement concerning the circumstances under which he executed the document). As for the procedures followed, the notary had no independent recollection but maintained that it was his custom and practice “to ask and confirm that the person signing the document was the same person named in the document” and he was “confident” he had done so when witnessing the husband’s signature.

We have held that a party can rely on custom and practice evidence to fill in evidentiary gaps “where the proof demonstrates a deliberate and repetitive practice by a person in complete control of the circumstances” (Rivera v Anilesh, 8 NY3d 627, 634 [2007] [internal quotation marks and citation omitted]), thereby creating a triable question of fact as to whether the practice was followed on the relevant occasion. But the averments presented by the notary public in this case are too conclusory to fall into this category.

Custom and practice evidence draws its probative value from the repetition and unvarying uniformity of the procedure involved as it depends on the inference that a person who regularly follows a strict routine in relation to a particular repetitive practice is likely to have followed that same strict routine at a specific date or time relevant to the litigation. For example, in Rivera, a dentist who did not recall the procedure that allegedly gave rise to plaintiff’s dental malpractice action—a second injection of anesthesia—was able to avoid summary judgment in plaintiffs favor by supplying a detailed description of the multistep protocol she always followed when administering such injections, coupled with proof that this protocol, if followed, comported with generally accepted medical standards.

In contrast, the affidavit by the notary public in this case merely paraphrased the requirement of the statute—he stated it was his practice to “ask and confirm” the identity of the signer—without detailing any specific procedure that he routinely followed to fulfill that requirement. There are any number of methods a notary might use to confirm the identity of a signer he or she did not already know, such as requiring that the signer display at least one current form of photo identification (a driver’s license or passport). It is also possible that a notary might not employ any regular strategy but vary his or her procedure for confirming identity depending on the circumstances (for example, a notary who works in a bank, law firm or other similar institution might occasionally rely on another employee who knew the signer to vouch for the signer’s identity). If the notary actually remembered having acknowledged defendant’s signature, he might have been able to fill in the gap in the certificate by averring that he recalled having confirmed defendant’s identity, without specifying how. But since he understandably had no recollection of an event that occurred more than a decade ago, and instead attempted to proffer custom and practice evidence, it was crucial that the affidavit describe a specific protocol that the notary repeatedly and invariably used—and proof of that type is absent here. As such, even assuming a defect in a certificate of acknowledgment could be cured under Domestic Relations Law § 236 (B) (3), defendant’s submission was insufficient to raise a triable question of fact as to the propriety of the original acknowledgment procedure. Plaintiff was therefore entitled to summary judgment declaring that the prenuptial agreement was unenforceable.

Accordingly, the order of the Appellate Division should be reversed, with costs, plaintiff’s motion for summary judgment determining that the parties’ prenuptial agreement is invalid should be granted, and the certified question should be answered in the negative.

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

Order reversed, with costs, plaintiffs motion for summary-judgment determining that the parties’ prenuptial agreement is invalid granted, and certified question answered in the negative.

      . At about the same time this agreement was executed, the legislature enacted Real Property Law § 309-a which codified model language to be used in a certificate of acknowledgment involving a signer who was not acting on behalf of a corporation (see L 1997, ch 179). That new statute, which remains in effect, indicated that an acknowledgment should read as follows (or “conform substantially” with the following):
      “On the [insert date] before me, the undersigned, personally appeared [insert name of signer], personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/ her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument” (Real Property Law § 309-a [1]).
      The new language did not become mandatory until September 1999. It was intended to clarify existing law and encourage uniformity in filed deeds; it did not alter the substantive requirements for a valid acknowledgment that appear elsewhere in the Real Property Law, as discussed above.

        . The wife argues that this issue was not preserved in the motion court but we agree with the Appellate Division majority that such an argument was evident from the husband’s submission of the notary public affidavit in response to the wife’s motion for summary judgment, a submission that was cited by Supreme Court in the oral decision denying summary judgment. Since the parties admitted in Supreme Court that their signatures were authentic and made no claims of fraud or duress, there was only one reason for the husband to proffer the notary public affidavit—to cure the purported deficiency in the certificate of acknowledgment. The fact that Supreme Court did not reach the “cure” argument because it concluded (incorrectly) that the acknowledgment was not defective does not render the issue unpreserved for review.

        (n. cont’d)

      . Several of the cases the husband relies on for the contrary proposition involve proving a signature through use of subscribing witnesses, a different procedure governed by other provisions of the Real Property Law (see Matter of Maul, 287 NY 694 [1942] [where wife signed waiver of right of election in presence of two subscribing witnesses, who also signed the document, fact that signatures of subscribing witnesses were not acknowledged at that time did not render document unenforceable]; Matter of Saperstein, 254 AD2d 88 [1st Dept 1998] [where wife executed waiver of right of election in presence of subscribing witness, who signed the document at that time attesting to that fact, subscribing witness could secure document evidencing proof of execution later on, after the husband died]). These cases neither involve Domestic Relations Law § 236 (B) (3) nor the acknowledgment method of validating a document. Moreover, the precedent suggests that there may be a distinction between the absence of an acknowledgment relating to the signature of a party and the absence of an acknowledgment relating to the signature of a subscribing witness (compare Matter of Warren, 16 AD2d 505 [2d Dept 1962], affd 12 NY2d 854 [1962], with Matter of Maul, 287 NY 694 [1942], supra).


author: Smith, J.

text:
    [991 NE2d 198, 969 NYS2d 424]
    Manhattan Telecommunications Corporation, Appellant, v H & A Locksmith, Inc., et al., Defendants, and Ariq Vanunu, Respondent.
    Argued May 2, 2013;
    decided May 30, 2013

      POINTS OF COUNSEL

      Jonathan D. Bachrach, New York City, for appellant.
    I. The complaint was not defective. (Natradeze v Rubin, 33 AD3d 535; DeLeon v Sonin & Genis, 303 AD2d 291; Giordano v Berisha, 45 AD3d 416; Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827.) II. New York State requires a showing of excusable neglect in order to vacate a default judgment. (Dimitriadis v Visiting Nurse Serv. of N.Y., 84 AD3d 1150; Felsen v Stop & Shop Supermarket Co., LLC, 83 AD3d 656; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695; Farrah v Pinos, 78 AD3d 1115; Francis v Long Is. Coll. Hosp., 45 AD3d 529; Wilson v Galicia Contr. & Restoration Corp., 10 NY3d 827.) III. The Appellate Division, First Department, improperly vacated plaintiffs judgment against defendant on grounds that defendant had never raised in the trial court or in its briefs on appeal. (Feffer v Malpeso, 210 AD2d 60; Perez v Lenox Hill Hosp., 159 AD2d 251; Natradeze v Rubin, 33 AD3d 535; DeLeon v Sonin & Genis, 303 AD2d 291.)

      Ofeck & Heinze, LLP, New York City (Mark F. Heinze of counsel), for respondent.
    I. When there is noncompliance with CPLR 3215 (f), a default judgment is a nullity or, at a minimum, subject to vacatur in the court’s traditional discretion. (Woodson v Mendon Leasing Corp., 100 NY2d 62; Misicki v Caradonna, 12 NY3d 511; Giordano v Berisha, 45 AD3d 416; Natradeze v Rubin, 33 AD3d 535; Zaidman v Zaidman, 90 AD3d 1035; Friedman v Connecticut Gen. Life Ins. Co., 9 NY3d 105; Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86; Ladd v Stevenson, 112 NY 325; Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557.) II. Plaintiffs motion for a default judgment was premature, and Judicial Hearing Officer Gammerman lacked judicial authority to enter any order, and so the judgment was fatally defective. (Dobkin v Chapman, 21 NY2d 490; Matter of Bernstein Family Ltd. Partnership v Sovereign Partners, L.P., 66 AD3d 1; Dunn v Burns, 42 AD3d 884; Quality

      Food Oils v Caruso Prods. Distrib. Corp., 127 Misc 2d 1097; Red Creek Natl. Bank v Blue Star Ranch, 58 AD2d 983; Firemen’s Fund Ins. Co. v Dietz, 110 AD2d 1083; R. L. C. Invs. v Zabski, 109 AD2d 1053; Nash v Duroseau, 39 AD3d 719; Marazita v Nelbach, 91 AD2d 604; Morris v Smithline, 145 Misc 2d 772.) III. Plaintiffs proof of its cause of action was insufficient as a matter of law, and defendant Ariq Vanunu has a meritorious defense. (Savoy Record Co. v Cardinal Export Corp., 15 NY2d 1; Salzman Sign Co. v Beck, 10 NY2d 63; Bartsch v Bartsch, 54 AD2d 940; Giordano v Berisha, 45 AD3d 416; Ritzer v 6 E. 43rd St. Corp., 47 AD3d 464; Feffer v Malpeso, 210 AD2d 60; IMG Intl. Mktg. Group, Inc. v SDS William St., LLC, 32 Misc 3d 1233[A], 2011 NY Slip Op 51561[U]; Rodkinson v Haecker, 248 NY 480; Speciner v Parr, 252 AD2d 554; Landa v Dratch, 45 AD3d 646.) IV Defendant Ariq Vanunu excusably defaulted and has a meritorious defense. (Woodson v Mendon Leasing Corp., 100 NY2d 62.)
   OPINION OF THE COURT

Smith, J.

CPLR 3215 (f) requires an applicant for a default judgment to file “proof of the facts constituting the claim.” In Woodson v Mendon Leasing Corp. (100 NY2d 62, 71 [2003]), we left open the question of whether non-compliance with this requirement is a jurisdictional defect that “renders a default judgment a ‘nullity.’ ” We now hold that the defect is not jurisdictional.

Plaintiff sued a number of corporations and an individual, Ariq Vanunu, alleging that plaintiff had provided telephone service to defendants pursuant to a written agreement, and had not been paid. The complaint alleged that Vanunu was “a principal officer in all the corporate defendant entities”; it did not attach the agreement or allege that Vanunu had signed it in his individual capacity. All defendants defaulted, and a default judgment was entered on November 28, 2008.

On November 5, 2009, Vanunu moved to vacate the judgment, asserting that his default was excusable and that he had meritorious defenses to the action. Supreme Court denied the motion, finding that Vanunu’s delay in defending himself was not excusable. The Appellate Division reversed without reaching the issue of excusable default, holding that because “plaintiff failed to provide . . . evidence that [Vanunu] was personally liable for the stated claims . . . the default judgment was a nullity” (Manhattan Telecom. Corp. v H & A Locksmith, Inc., 82 AD3d 674, 674 [1st Dept 2011]). The Appellate Division granted leave to appeal, certifying the question of whether its order was properly made. We answer the question in the negative, and reverse.

We assume for present purposes that the Appellate Division was correct in holding that plaintiffs complaint, though verified, failed to supply “proof of the facts constituting the claim” against Vanunu, as CPLR 3215 (f) requires. Thus the default judgment was defective, but not every defect in a default judgment requires or permits a court to set it aside. CPLR 5015 (a) (1) authorizes the court that rendered a judgment to relieve a party from it “upon the ground of . . . excusable default”—a ground that Supreme Court found to be absent here. The question raised by this appeal is whether the defect is jurisdictional— i.e., whether it was so fundamental that it deprived the court of power to enter the judgment, rendering the judgment a nullity whether Vanunu’s default was excusable or not. This question has divided the Appellate Division departments (see Natradeze v Rubin, 33 AD3d 535 [1st Dept 2006] [holding defect jurisdictional]; State of New York v Williams, 44 AD3d 1149, 1151-1152 [3d Dept 2007] [same]; Westcott v Niagara-Orient Agency, 122 AD2d 557, 558 [4th Dept 1986] [same]; but see Zaidman v Zaidman, 90 AD3d 1035, 1036-1037 [2d Dept 2011] [holding defect non-jurisdictional]; Araujo v Aviles, 33 AD3d 830 [2d Dept 2006] [same]; Freccia v Carullo, 93 AD2d 281, 286-289 [2d Dept 1983] [same]).

As we explained in Lacks v Lacks (41 NY2d 71, 74-75 [1976, Breitel, Ch. J.]), the word “jurisdiction” is often loosely used. But in applying the principle “that a judgment rendered without subject matter jurisdiction is void, and that the defect may be raised at any time and may not be waived” (id. at 75), it is necessary to understand the word in its strict, narrow sense. So understood, it refers to objections that are “fundamental to the power of adjudication of a court” (id. at 74). “Lack of jurisdiction” should not be used to mean merely “that elements of a cause of action are absent” (id.), but that the matter before the court was not the kind of matter on which the court had power to rule.

The defect in the default judgment before us is not jurisdictional in this sense. A failure to submit the proof required by CPLR 3215 (f) should lead a court to deny an application for a default judgment, but a court that does not comply with this rule has merely committed an error—it has not usurped a power it does not have. The error can be corrected by the means provided by law—i.e., by an application for relief from the judgment pursuant to CPLR 5015. It does not justify treating the judgment as a nullity. As the Appellate Division said in Freccia: “the court had subject matter jurisdiction over the case which included the concomitant power to enter a default judgment in favor of plaintiff’ (93 AD2d at 288-289).

The result we reach today follows from our decision in Wilson v Galicia Contr. & Restoration Corp. (10 NY3d 827, 829 [2008]), where we refused to set aside a default judgment despite the defaulting party’s contention “that CPLR 3215 (f) renders the judgment a nullity.” We relied in Wilson on the party’s failure to preserve its argument (id. at 829-830). But if the defect were truly jurisdictional—if the court that entered it was powerless to do so—a lack of preservation would not matter. Wilson thus implies that a defect of this kind is non-jurisdictional, as we now hold.

Accordingly, the order of the Appellate Division should be reversed, with costs, the case remitted to the Appellate Division for consideration of issues raised but not reached on the appeal to that court, and the certified question answered in the negative.

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

Order reversed, with costs, case remitted to the Appellate Division, First Department, for consideration of issues raised but not determined on the appeal to that court, and certified question answered in the negative.


author: Chief Judge Lippman.

text:
    [991 NE2d 204, 969 NYS2d 430]
    The People of the State of New York, Respondent, v James E. Guilford, Appellant.
    Argued April 25, 2013;
    decided June 4, 2013

      POINTS OF COUNSEL

      Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), for appellant.
    I. James E. Guilford’s statements were involuntary and obtained in violation of due process because eight hours in a jail holding cell and two hours with an attorney could not dissipate the debilitating effects of a 50-hour interrogation conducted by rotating teams of detectives, 70 hours without sleep, and 40 hours without food. (Ashcraft v Tennessee, 322 US 143; People v Anderson, 42 NY2d 35; Blackburn v Alabama, 361 US 199; Miranda v Arizona, 384 US 436; Chambers v Florida, 309 US 227; Dickerson v United States, 530 US 428; People v Valerius, 31 NY2d 51; People v Ruppert, 26 NY2d 437; Mincey v Arizona, 437 US 385; Missouri v Seibert, 542 US 600.) II. The lower court committed reversible error by denying James E. Guilford’s request for a voluntariness instruction on the basis that the evidence did not support such a charge. (Mincey v Arizona, 437 US 385; People v Cefaro, 23 NY2d 283; People v Graham, 55 NY2d 144; Stein v New York, 346 US 156; People v Mezon, 80 NY2d 155; People v Prado, 4 NY3d 725; People v Florestal, 53 AD3d 164; People v Luis, 189 AD2d 657; People v Casiano, 123 AD2d 712; People v Glover, 57 NY2d 61.) III. James E. Guilford was deprived of his right to the effective assistance of counsel. (Strickland v Washington, 466 US 668; Hill v Lockhart, 474 US 52; Murray v Carrier, 477 US 478; United States v Cronic, 466 US 648; People v Ennis, 11 NY3d 403; People v

      Baldi, 54 NY2d 137; People v Turner, 5 NY3d 476; People v Benevento, 91 NY2d 708; People v Hobot, 84 NY2d 1021; People v Caban, 5 NY3d 143.)

      William J. Fitzpatrick, District Attorney, Syracuse (James P Maxwell and Victoria M. White of counsel), for respondent.
    I. The hearing court properly found that defendant’s March 23, 2007 statements were admissible at trial. (People v Scott, 86 NY2d 864; People v Holland, 18 NY3d 840; People v Gray, 86 NY2d 10; People v Hawkins, 11 NY3d 484; People v Mateo, 2 NY3d 383; People v Smith, 275 AD2d 951, 96 NY2d 739; People v Chapple, 38 NY2d 112; People v Bethea, 67 NY2d 364; People v Bradford, 15 NY3d 329; People v Conyers, 68 NY2d 982.) II. Defendant was not entitled to a voluntariness instruction. (People v Mateo, 2 NY3d 383; People v Cefaro, 23 NY2d 283.) III. Defendant received effective assistance of counsel. (People v Stultz, 2 NY3d 277; People v Baldi, 54 NY2d 137; People v Rivera, 71 NY2d 705; People v Droz, 39 NY2d 457; People v Bennett, 29 NY2d 462; People v Borrell, 12 NY3d 365; People v Satterfield, 66 NY2d 796; Strickland v Washington, 466 US 668; People v Harris, 131 AD2d 142; People v Session, 34 NY2d 254.)
   OPINION OF THE COURT

Chief Judge Lippman.

Defendant appeals from an order of the Appellate Division affirming a judgment convicting him of murder in the second degree. The uncontested circumstance at the root of this appeal is that, before confessing to a detective that he had killed his former paramour, Ms. Nugent, defendant was subjected to a custodial interrogation lasting 491/2 hours. It is not now suggested that this evidently uniquely lengthy interrogation was proper, or that the trial court erred when it granted defendant’s pretrial suppression motion to the extent of deeming inadmissible the statements made in its course on the ground, among others, that they had been ‘ ‘involuntar[y]... in the ‘traditional due process sense’.” The question posed is rather whether the exclusionary consequence of this marathon interrogation was correctly limited by the trial court to the statements made during the interrogation itself, or whether defendant’s suppression motion should have been granted to the further extent of suppressing his subsequent inculpatory statements.

The Appellate Division held that defendant’s subsequent statements, the first and most significant of which—“I killed her”—was made some 10 hours after the 49V2-hour interrogation had concluded and in the presence of appointed counsel, had been shown sufficiently attenuated from the prior interrogation to permit the conclusion that they were not the product of official compulsion (96 AD3d 1375, 1377 [2012]). Two Justices disagreed, noting their view that neither the break in questioning nor the entry of counsel satisfied the People’s burden to prove that the coercive effects of the interrogation had been neutralized so as to return defendant “in effect, to the status of one who is not under the influence of questioning” (id. at 1384 [Lindley and Martoche, JJ., dissenting], quoting People v Chapple, 38 NY2d 112, 115 [1975]). One of the dissenting Justices granted defendant permission to appeal, and we now reverse and direct a new trial.

I.

It was, of course, the People’s burden to prove the voluntariness of defendant’s statements beyond a reasonable doubt as a condition of their receipt at trial (People v Anderson, 42 NY2d 35, 38-39 [1977]; People v Valerius, 31 NY2d 51, 55 [1972]; People v Huntley, 15 NY2d 72, 78 [1965]). Principally at issue here, however, is not the assignment of the burden or the generally applicable standard of proof, but precisely what had to be shown and whether that showing was sufficiently made.

Proof of voluntariness compatible with due process, we have said, will depend upon the particular circumstances—“the totality”—of each case (Anderson, 42 NY2d at 38, citing Clewis v Texas, 386 US 707, 708 [1967]; Fikes v Alabama, 352 US 191, 197 [1957]; see also Dickerson v United States, 530 US 428, 434 [2000] [“The due process test takes into consideration the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation”] [citation and internal quotation marks omitted]). In some situations—where, for example, Miranda warnings have been timely given—the requisite inference of voluntariness may be relatively easily drawn. But where there has been official illegality potentially impairing the voluntariness of a subsequent admission, the inference will naturally require a more exacting showing.

We have recognized this principle most frequently in cases involving late Miranda warnings. In People v Chapple (38 NY2d 112 [1975]) we held that the late interposition of those warnings would be “too late” unless there was a demonstration of a “pronounced break” in interrogation adequate to justify a finding that the defendant was no longer under the sway of the prior questioning when the warnings were given (id. at 115). We have since reaffirmed the need for this more precise showing under our state constitution (People v Bethea, 67 NY2d 364, 368 [1986]; People v Paulman, 5 NY3d 122, 129-130 [2005]), notwithstanding federal precedent (i.e., Oregon v Elstad, 470 US 298, 310-311 [1985]) suggesting that, in the absence of actual coercion, Miranda warnings will ordinarily suffice to demonstrate the voluntariness of statements subsequently made. A less demanding rule, we noted, would have little deterrent effect, since the police could then “question a suspect in custody without warning, provided only they thereafter question him or her again after warnings have been given” (Bethea, 67 NY2d at 366).

Where, as here, the predicate for the claim of involuntariness is actual coercion directed at extracting an inculpatory statement, and not simply the failure timely to administer Miranda warnings, the People’s demonstration of voluntariness must, we think, be particularly responsive to the claim actually made.

Under the Chapple-Bethea doctrine a suspect’s course of interrogation is assessed using certain fairly objective criteria to characterize it either as unitary or composed of severable, separately Mirandizable segments. But the inquiry as to whether there has been one interrogatory sequence or several does not address the very stubborn problem posed by actual coercion, which involves the physical, cognitive and emotional depletion of the interrogation subject. In situations where the subject has been interrogated over an extremely lengthy period, the existence of objective indicia of separation may well be inadequate to prove that the defendant has been restored to the status of one no longer under the influence of questioning, so as to render plausible the characterization of a subsequent admission as voluntary beyond a reasonable doubt.

II.

The proof at the hearing held on defendant’s suppression motion was that on the evening of March 20, 2007 defendant was escorted from a Syracuse hotel by eight or nine police officers and transported to the offices of the Syracuse Police Department’s Criminal Investigations Division (CID). There, at 11:30 p.m., he was read his Miranda rights and placed in what is referred to in the hearing testimony as the “Blue Room”—a 10 by 10, windowless and clockless chamber furnished with three chairs, a table and a one-way mirror. But for accompanied trips to the restroom, defendant remained locked in the Blue Room for the ensuing 49V2 hours. He was during this entire time watched and, with only relatively brief intervals, aggressively interrogated by four rotating pairs of detectives, relieving each other pursuant to a schedule devised by the supervising sergeant. Notwithstanding the constant observation of defendant, there is no direct evidence that he slept and, apart from a sandwich he was given on the evening of March 21st, he did not eat. Two of the interrogating detectives testified that by the morning of March 21st, defendant was “defeated” and had “given up,” that he constantly stared at the floor, and often wept. As the interrogation progressed, defendant made several statements, which, although not directly inculpatory, suggested his involvement in Ms. Nugent’s disappearance and suspected homicide, among them that “[o]nly me, God, and Sharon know what happened to her.”

On the evening of March 22nd, as the interrogation neared the end of its second full day, defendant was interviewed by an Assistant District Attorney. Shortly afterward, the supervising sergeant informed defendant that he would be charged with Ms. Nugent’s murder. According to the sergeant, defendant became distraught and the sergeant responded by urging defendant to disclose the location of the body. He told defendant, among other things, that the “dumbest thing you’ve done is not using that body to make a deal!” Defendant then said that he would “give everybody what they want” if he could confer again with the Assistant District Attorney and if he was provided with an attorney of his own. After eliciting defendant’s assurance that he was not “wasting [the sergeant’s] time” and that he would enable the police to “physically get [Ms. Nugent’s] body,” the sergeant contacted the Assistant District Attorney, who, in turn set in motion the process to have counsel appointed.

Upon his arrival at the CID, defendant’s assigned attorney spoke with the Assistant District Attorney for about half an hour and was informed about what was a fairly complex case in summary fashion. He stated in his hearing testimony that he was not told how long defendant had been questioned, and, indeed, the Assistant District Attorney testified that he himself was not aware at the time how long the interrogation had been ongoing. An offer was conveyed to assigned counsel that, if defendant disclosed the location of the body, his sentence would be capped at 18 years to life. Counsel then met in the Blue Room with his new client, whom he described as “[e]motional and distraught.” After about two hours, counsel emerged and announced that his client should not be questioned further. Defendant was at this time—1:30 a.m. on March 23rd—formally arrested and taken to the Justice Center, where he was booked. The record is silent as to how he spent the balance of the night.

On the morning of the same day, at 9:30, defendant was arraigned in Syracuse City Court. He was then returned to the CID where, after conferring briefly with assigned counsel, he was placed yet again in the Blue Room. He was joined by his attorney, the Assistant District Attorney and the supervising sergeant. At about 11:30 a.m., the sergeant opened the interview by asking, “what happened?,” and defendant replied, “I killed her.” Defendant then made statements in which he purported to disclose where he had left the body. He said he had deposited the body in a dumpster, which he described, but no dumpster of that description was found at the specified location and Ms. Nu-gent’s body was never recovered.

Although defendant’s admissions on the morning of March 23rd were made in exchange for sentencing consideration, defendant, in the end, evidently elected to forgo that consideration. He went to trial, was convicted by a jury upon proof including the admissions he made in exchange for the unused sentencing consideration, and was sentenced to a term of 25 years to life.

III.

Courts have long condemned interrogations designed, as this one was, to break a suspect’s will to resist self-incrimination by prolonged and virtually continuous questioning coupled with deprivation of basic human needs, most notably sleep. In Ash-craft v Tennessee (322 US 143 [1944]), a 36-hour interrogation conducted like the one here, by rotating teams of police officers, was deemed “so inherently coercive that its very existence is irreconcilable with the possession of mental freedom by a lone suspect against whom its full coercive force is brought to bear” (id. at 154). And, in People v Anderson, this Court similarly characterized a 19-hour interrogation, performed “in relays,” noting that “[t]he potential effect on human beings of the lack of such elemental needs as sleep and sustenance requires no elaboration. Case law repeatedly has emphasized the vital effect that the resultant slowly mounting fatigue may be expected to have on a person’s judgment and will” (42 NY2d at 40 [internal quotation marks and citations omitted]).

The present interrogation was well over twice the length of that in Anderson and significantly longer than the one in Ash-craft. Given the extraordinary privation that was involved— defendant by the session’s conclusion having been sleepless for well over 50 hours and having gone without eating for 30 hours—we cannot accept that, once the marathon session was over, defendant commenced rapidly to recover to the point that his basic capacity to exercise independent judgment was restored.

Upon the cessation of questioning on the early morning of March 23rd, defendant was immediately booked and placed in a holding cell to await arraignment. There is no evidence that he slept or ate or even that he was given the opportunity to do so. Indeed, the proof does not exclude the very real possibility that defendant’s passage of an additional eight hours in custody before arraignment exacerbated, rather than ameliorated, the physical and cognitive debilitation resulting from his 49V2-hour session in the Blue Room.

We are unwilling to draw the inference, which the People would have us make, that the eight-hour “break” between interrogation and arraignment attenuated the taint of the wrongful interrogation. Defendant’s pre- and post-arraignment statements were, despite their temporal separation, in all other ways seamlessly linked. At the end of the marathon session, the utterly spent defendant, in exchange for a lawyer to which he was absolutely entitled, agreed in a statement ultimately suppressed as coerced, to “give everybody what they want,” and when he returned to the Blue Room on the morning of the same day and faced the same interrogator across the same table, that is exactly what he did. We do not accept the hypothesis that his intervening stay in a holding pen and arraignment on the charge of murder sufficed to transform his coerced capitulation into a voluntary disclosure. By the time of defendant’s post-arraignment statements, his options would have seemed so constricted, by what he had already divulged during the earlier portion of the interrogation, as to render the intervening temporal buffer practically irrelevant. There was, in any event, no proof adduced by the People to justify a contrary conclusion.

Finally, we reject the contention that the entry of counsel guaranteed the voluntariness of defendant’s subsequent statements (see 96 AD3d at 1377). This contention misconstrues the statement in Miranda v Arizona (384 US 436 [1966]) that

“[t]he presence of counsel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege [against self incrimination]. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion” (id. at 466 [emphasis supplied]).

Plainly, this language, expressly limited in its reference, was not intended to stand for the proposition that the presence of counsel will invariably be adequate as an assurance of voluntariness. Miranda understood the presence of an attorney to be an effective buffer against the coercion present when a defendant “is first subjected to police interrogation while in custody” (id. at 477). The decision nowhere suggests that an attorney should be presumed capable of neutralizing the effects of extensive coercive interrogation conducted prior to his or ner arrival, in violation of Miranda’s own dictates. No decision should be understood to contemplate its own undoing and particularly not by the conduct it forbids.

By the time assigned counsel arrived at the Blue Room, ;he die was largely cast. His client had, in exchange for his piesence, already promised to “give everybody what they want” and had been so depleted by over two days of constant tag-team interrogation as to raise the most serious doubt, unresolved by the hearing evidence, as to his ability usefully to confer with counsel. Defendant distrusted the attorney seemingly procured by his interrogator—indeed, he thought he was not an attorney at all. For his part, the attorney was at a distinct disadvantage. He knew little about the investigation and nothing about he immediately preceding flagrantly illegal interrogation. He had little basis to judge the advisability of the fateful barter to which his client had already agreed and, demonstrably, his presence did little to blunt the momentum of the interrogation conducted in his absence. Ultimately he became an unintended spectator to his client’s confession and was called as a prosecution witness at trial.

Even if we were to accept in theory the proposition that an attorney in the untenable position of defendant’s assigned counsel could have acted as an equalizer, it is clear that that was not the actual effect of this counsel’s entry. If the presence of counsel is to be relied upon as proof that a subsequent confession was not the product of a pre-entry course of coercion, it must be shown that the interposition of the attorney enabled a decision by the client that was not the product of official compulsion. There was no such showing here.

IV.

We conclude, as a matter of law, that the taint of the wrongful police action was not attenuated. The bar for the prosecution, it is true, has as a practical matter been set very high in this case. But that is what the law requires given the actual coercion inherent in the subject interrogation. Were we in the face of such circumstances to allow a judgment of conviction premised on statements admitted upon a less exact correspondence between proof and the conclusion of voluntariness, it would raise the possibility that a conviction could be obtained by means demonstrably hazardous to the truth and an anathema to any truly adversarial system of justice.

Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to suppress his March 23, 2007 statements granted and a new trial ordered.

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

Order reversed, defendant’s motion to suppress his March 23, 2007 statements granted and a new trial ordered.

      . They were also suppressed as having been obtained in violation of CPL 60.45, defendant’s Miranda rights (which were read to defendant only once, at the lengthy interrogation’s outset) and, with respect to one statement made in response to a question posed after defendant had requested but had not yet been furnished an attorney, in violation of his right to counsel.

      . By the time of defendant’s March 2007 interrogation, the investigation into Ms. Nugent’s disappearance in early February 2007 had progressed to the point where there was strong circumstantial evidence that she had been the victim of a homicide that had occurred on the early morning of February 6th at the residence she shared with defendant. Her body, however, had not been found and there was no direct evidence tying defendant to her demise.

      . The administration of Miranda warnings notwithstanding, defendant evidently perceived a need to barter for an attorney. It would appear that the trial court’s finding as to the inadequacy of the single set of warnings given at the outset of the interrogation was well founded.

        (n. cont’d)

      . It was this assurance that the trial court deemed to have been elicited in violation of defendant’s right to counsel.

      . Defendant’s assigned attorney evidently anticipated neither the sergeant’s open-ended inquiry, nor his client’s response. He immediately instructed that defendant was not to be questioned respecting Ms. Nugent’s death, only the location of her body.

      . At trial, the People were permitted to introduce evidence that dumpsters at the location pointed out by defendant were regularly emptied and their contents incinerated.

      . To be added to defendant’s sleepless 50 hours in the Blue Room, are the hours he was awake prior to the commencement of the interrogation (see Anderson, 42 NY2d at 39 [“(the defendant’s) hours in the interrogation room must be added to those which had elapsed since the time he had arisen from his bed on the morning of the day before”]).

      . Defendant, of course, did not know that his statements during the 49V2-hour session would not be admissible.