author: Ciparick, J. Graffeo, J.

text:
    [868 NE2d 199, 836 NYS2d 518]
    The People of the State of New York, Appellant, v Abel Rosas, Respondent.
    Argued March 27, 2007;
    decided May 8, 2007

      POINTS OF COUNSEL

      Richard A. Brown, District Attorney, Kew Gardens (Sharon Y. Brodt and John M. Castellano of counsel), for appellant.
    Consecutive sentences were authorized for the two counts of first-degree murder involving two victims. (People v Ramirez, 89 NY2d 444; People v Laureano, 87 NY2d 640; People v Brown, 80 NY2d 361; People v Brathwaite, 63 NY2d 839; People v Truesdell, 70 NY2d 809; People v Bond, 90 NY2d 877; Blockburger v United States, 284 US 299; People v Okafore, 72 NY2d 81; People v Ramos, 99 NY2d 27; People v West, 81 NY2d 370.)

      Winston McIntosh, New York City, and Lynn W.L. Fahey for respondent.
    The Appellate Division correctly determined that respondent’s first-degree murder sentences must run concurrently because the same act — the double murder of a husband and wife during the same criminal transaction — constituted both offenses, or, alternatively, because the murder of each victim was a material element of the offense as to the other. (People v Ramirez, 89 NY2d 444; People v Laureano, 87 NY2d 640; People v Day, 73 NY2d 208; People v Underwood, 52 NY2d 882; People v Bryant, 92 NY2d 216; People v Salcedo, 92 NY2d 1019; People v Brown, 80 NY2d 361; People v Truesdell, 70 NY2d 809; People v Brathwaite, 63 NY2d 839; People v Parks, 95 NY2d 811.)
   OPINION OF THE COURT

Ciparick, J.

Defendant was convicted of two counts of first degree murder under Penal Law § 125.27 (1) (a) (viii) for causing the deaths of two individuals during the same criminal transaction. The issue presented by this appeal is whether the resulting sentences imposed must run concurrently or consecutively to one another under Penal Law § 70.25 (2). We conclude, under the principles stated in People v Laureano (87 NY2d 640 [1996]), that the sentences must be served concurrently.

In the early morning hours of March 30, 1997, defendant broke into the apartment of his former girlfriend, Yurate Dainiene, and shot her and her husband, Rimgaudas Dainys, to death as they slept in their bed. Defendant proceeded to trial on several charges including, as relevant here, charges of first degree murder. The court instructed the jury in accordance with the Criminal Jury Instructions for Penal Law § 125.27 (1) (a) (viii). Specifically, for the first count the court told the jury that the People were required to prove, in pertinent part:

“1. That. . . the defendant, Abel Rosas, caused the deaths of [both] Yurate Dainiene and Rimgaudas Dainys[;] . . .
“2. That the defendant did so with the intent to cause the death of Yurate Dainiene . . . and the intent to cause either the death or serious physical injury of Rimgaudas Dainys[; and]
“3. That the defendant caused both deaths during the same criminal transaction.”

For the second count, the positions of the victims were reversed, with Rimgaudas Dainys as the primary victim.

During deliberations, the jury sent a note indicating that there was “substantial confusion” regarding the first degree murder counts, asking the court to explain the difference between the two and inquiring whether they were “mutually exclusive.” Supreme Court responded by recharging the elements of murder in the first degree for each count and advising the jury that the two counts were not mutually exclusive.

Defendant was convicted of two counts of first degree murder (Penal Law § 125.27 [1] [a] [viii]), two counts of second degree murder (Penal Law § 125.25 [1]) and one count of criminal possession of a weapon in the second degree (Penal Law § 265.03). Supreme Court sentenced him to two consecutive terms of life imprisonment without parole for the first degree murder convictions, to run concurrently with two consecutive indeterminate terms of 25 years to life for the second degree murder convictions and an indeterminate term of 7V2 to 15 years for criminal possession of a weapon in the second degree.

The Appellate Division modified by vacating the convictions for murder in the second degree and dismissing those counts of the indictment as inclusory concurrent counts of first degree murder. It further found that the imposition of consecutive sentences on the first degree murder convictions violated Penal Law § 70.25 (1) and (2) because there was an identical “act” underlying both counts of murder in the first degree — the double murder of both husband and wife. Moreover, “the murder of the wife was a material element of the offense as to the husband and vice versa” (30 AD3d 545, 546 [2006]). The Court ordered the remaining sentence for weapons possession to run concurrently with the sentences for murder. A Judge of this Court granted the People leave to appeal and we now affirm.

Penal Law § 70.25 addresses the legality of concurrent or consecutive prison sentences. Subdivision (2) provides that

“[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences . . . must run concurrently.”

The People have the burden of establishing the legality of consecutive sentences (see Laureano, 87 NY2d at 643).

In this context, the Court has interpreted “act or omission” to include the actus reus of the offense.

“Because both prongs of Penal Law § 70.25 (2) refer to the ‘act or omission,’ that is, the ‘actus reus' that constitutes the offense, the court must determine whether the actus reus element is, by definition, the same for both offenses (under the first prong of the statute), or if the actus reus for one offense is, by definition, a material element of the second offense (under the second prong)” (Laureano, 87 NY2d at 643 [citations omitted]; see also People v Bryant, 92 NY2d 216, 231 [1998]; People v Ramirez, 89 NY2d 444, 451 [1996]).

A court must look to the statutory definitions of the crimes at issue to decide whether concurrent sentences are warranted (see Laureano, 87 NY2d at 643).

Therefore, in our analysis we must initially look to the language of the first degree murder statute. Penal Law § 125.27, enacted as the State’s capital murder statute, requires a defendant to have committed intentional murder of a person and enumerates 13 aggravating factors that elevate the offense to first degree murder (see People v Miller, 6 NY3d 295, 301 [2006]). Specifically, Penal Law § 125.27 (1) (a) (viii) and (b) states that,

“[a] person is guilty of murder in the first degree when . . .
“[w]ith intent to cause the death of another person, he causes the death of such person or of a third person; and . . .
“as part of the same criminal transaction, the defendant, with intent to cause serious physical injury to or the death of an additional person or persons, causes the death of an additional person or persons; provided, however, the victim is not a participant in the criminal transaction . . .
“[and] [t]he defendant was more than eighteen years old at the time of the commission of the crime.”

The actus reus of the offense is that a defendant intentionally murder one victim and cause the death of the other, with the intent of causing either death or serious physical injury to the second victim. As noted above, under Laureano the actus reus of a particular offense is what constitutes the “act or omission” for the purposes of section 70.25 (2) (see 87 NY2d at 643). Thus, we are bound to consider the entire actus reus of the offense with all its components when determining whether consecutive sentences are appropriate.

A “[c]onsecutive sentence is available ‘if the Legislature has seen fit to provide that up to a particular point the acts of the defendant constitute one crime and that the acts of the defendant, committed thereafter, constitute a second crime and that each series of acts constituí[e] a separate crime’ ” (People v Day, 73 NY2d 208, 212 [1989], quoting People v Snyder, 241 NY 81, 83-84 [1925]). Here, by contrast, the same acts constitute both crimes. In other words, the same actus reus — the intentional murder of the same two victims — is the basis for both first degree murder convictions.

Defendant intentionally murdered Yurate Dainiene and caused the death of Rimgaudas Dainys — with the intent to cause Dainys’ death or seriously physically injure him — in the same criminal transaction. Likewise, defendant intentionally murdered Rimgaudas Dainys and caused the death of Yurate Dainiene in the same criminal transaction with the requisite intent. Although the order is reversed in each count, as to which victim was primary and which was the aggravator, it is the same two murders that form the basis for each offense. Thus, the People have failed to meet their burden of establishing the legality of consecutive sentences, since under the first prong of section 70.25 (2), consecutive sentences cannot be imposed where the actus reus is the same for both offenses. Stated differently, neither offense exists independently of the other as both offenses were committed through a single actus reus.

This case is distinguishable from the situation presented by People v Brathwaite (63 NY2d 839 [1984]), in which the defendant was sentenced to consecutive terms of 25 years to life for two counts of felony murder (murder in the second degree). The owner of a grocery store and an employee were shot and killed during the course of defendant’s robbery of the store. We stated that

“although the two deaths may be said to have occurred in the course of a single extended transaction — the robbery — it was separate ‘acts’ which caused the deaths . . . (i.e., there is no contention that it was the firing of the same shot that killed both the owner and the clerk), and neither was a material element of the other” (Brathwaite, 63 NY2d at 843).

Although the victims in this case were likewise killed by separate shots, section 125.27 (1) (a) (viii) — unlike felony murder— requires multiple victims to constitute a single offense and thus contemplates the possibility of multiple shots. The two separate shots that caused the deaths of the victims here were one actus reus for the purposes of this sentencing statute and consistent with our long-settled interpretation of Penal Law § 70.25 (2) (see Laureano, 87 NY2d at 643; Ramirez, 89 NY2d at 451; Bryant, 92 NY2d at 231).

The People argue and the dissent agrees that our analysis is inconsistent with the statutory definition of “act” in the Penal Law: “a bodily movement” (Penal Law § 15.00 [1]). They note that the crime of first degree murder in this case was accomplished by two bodily movements — two shootings, two offenses — and thus suggest that there could not have been a single “act” within the meaning of Penal Law § 70.25 (2). But the People misconceive the purpose of the statutory definition. It draws a line between a prohibited “act” — “a bodily movement,” or actus reus — and a “[c]ulpable mental state” (Penal Law § 15.00 [6]) — a state of mind, or mens rea The statute could not have been designed to require courts to distinguish between one and several bodily movements, because the distinction will be difficult or impossible in many cases as the dissent recognizes.

Finally, the People point out an alleged anomaly in this interpretation of the statute — that defendant could have received consecutive sentences if he had been convicted of two counts of second degree murder for these crimes (Penal Law § 125.25 [1]), but is not eligible for consecutive sentences upon his conviction of two counts of first degree murder. However, the Legislature has already provided enhanced punishment for crimes deemed serious enough to constitute murder in the first degree. Such crimes potentially warrant an amplified sentence of life imprisonment without parole (see Penal Law §§ 60.06, 70.00), and the People sought and received such a sentence. Given the superfluous nature of consecutive sentences in this instance, it seems unlikely that the Legislature contemplated the effect of the concurrent/consecutive sentencing scheme for this particular offense. We see no reason to interpret the statute as proposed by the People. We do not rewrite the statute but interpret it today consistent with our precedents.

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

Graffeo, J.

(dissenting). Defendant was convicted of two counts of first-degree murder for breaking into the home of his former girlfriend and successively shooting her and her husband in the head as they slept. The majority concludes that defendant can receive only one sentence of imprisonment for the two murders because consecutive sentencing is impermissible under Penal Law § 70.25 (2). I respectfully dissent because I believe the sentencing court’s imposition of a separate consecutive sentence for each homicide was lawful.

Penal Law § 70.25 (2) directs that consecutive sentencing is impermissible in only two circumstances: (1) when “two or more offenses [are] committed through a single act or omission” or (2) when “two or more offenses [are] committed . . . through an act or omission which in itself constituted one of the offenses and also was a material element of the other.” Under the Penal Law, an “act” is “a bodily movement” and an “omission” is “a failure to perform an act as to which a duty of performance is imposed by law” (Penal Law § 15.00 [1], [3]).

When a defendant has been convicted of more than one offense, the sentencing court must review both the relevant Penal Law provisions and the particular facts proved at trial to identify whether any of the crimes are single act offenses. In this case, the inquiry begins with the first-degree multiple murder provision, which requires proof that,

“[w]ith intent to cause the death of another person, [defendant] cause[d] the death of such person . . . and . . .
“as part of the same criminal transaction, the defendant, with intent to cause serious physical injury to or the death of an additional person or persons, causefd] the death of an additional person or persons” (Penal Law § 125.27 [1] [a] [viii] [emphasis added]).

Thus, the statute contemplates proof of at least two act elements: causing the death of one person and causing the death of an additional person. And, in the factual context presented here, the People could not have obtained either first-degree murder conviction without proving two homicidal acts — that defendant shot his former girlfriend and then did the same to her husband.

Based on a review of the elements of the offenses and the facts underlying these convictions, this case clearly does not fall within the first prong of Penal Law § 70.25 (2) because the two offenses at issue were not committed through a “single act or omission.” The second prong of the statute is also not implicated because the two offenses were not committed “through an act or omission which in itself constituted one of the offenses” (id. [emphasis added]). Each shooting was a separate act and each offense required the People to prove both shootings, i.e., each count required proof of more than one act. There was no single act or omission which in itself constituted one of the offenses. Because defendant’s criminal conduct does not fall within either scenario addressed in Penal Law § 70.25 (2), consecutive sentencing is not prohibited.

The majority’s conclusion to the contrary is inconsistent with our precedent, particularly People v Laureano (87 NY2d 640 [1996]), in which we have interpreted Penal Law § 70.25 (2) according to its plain language. In Laureano, defendant pleaded guilty to manslaughter and robbery arising from the robbery and death of a single victim. At the plea allocution, defendant admitted forcibly stealing property from the victim and causing him serious physical injury by slitting his throat, resulting in his death. The sentencing court imposed consecutive sentences but this Court concluded that concurrent sentences were required under Penal Law § 70.25 (2). Consecutive sentencing was prohibited in Laureano because manslaughter is a single act offense and the act the People relied on to support that count — slitting the victim’s throat — was the same act that fulfilled the serious physical injury element of the first-degree robbery count. This single act, which “in itself’ constituted one of the offenses (manslaughter), underlay both counts, rendering consecutive sentencing impermissible.

The facts in Laureano are significantly distinguishable from this case. Laureano involved a single homicidal act and a single victim; here, there were two homicidal acts and two victims. The single act in Laureano — cutting the victim’s throat — in itself constituted one of the offenses: manslaughter. Here, no single act constituted one of the offenses; each offense by definition involved multiple acts. The fact that concurrent sentencing was required in Laureano does not compel the same result here.

Although the Laureano Court used the phrase “actus reus” to refer to the act underlying the manslaughter offense, it did not supplant the “single act or omission” language of Penal Law § 70.25 (2) by suggesting that other offenses that require proof of multiple acts would also trigger that subdivision. The “actus reus” nomenclature, while helpful in distinguishing between act-based elements (which are relevant to the concurrent sentencing inquiry) and mental state or “mens rea” elements (which are not), is not a substitute for applying the “single act” analysis prescribed by the Legislature. We did not hold in Laureano, or the other cases cited by the majority, that a multiple act offense can be transformed into a single act offense merely by grouping the act elements together and describing them as a single “actus reus.” In Laureano we employed the “actus reus” analysis precisely because the manslaughter offense was predicated on a single act element, thereby triggering the sentencing statute. By substituting the phrase “actus reus” for the language the Legislature used (and defined) in the statute, the majority now turns every offense into a single act offense, regardless of the number of culpable act elements it includes. In effect, this rewrites the statute so that it is now implicated whenever any number of culpable acts — combined into one “actus reus” — result in multiple offenses.

The majority opines that the Legislature could not have intended courts to distinguish between one and several bodily movements. Based on the language it chose, I believe the Legislature recognized that some crimes — such as the manslaughter offense in Laureano — require proof of only one “act” element (causing the death of the victim); others, such as the multiple murder offense at issue here, involve two (causing the death of victim A and causing the death of victim B) or more. It is therefore not difficult to identify the single act offenses that require scrutiny under Penal Law § 70.25 (2) (see e.g. People v Bryant, 92 NY2d 216 [1998] [criminal possession of a weapon]; People v Ramirez, 89 NY2d 444 [1996] [first-degree robbery]). But these first-degree multiple murders are in a different category. In this case, there were two distinct injurious acts giving rise to two murder charges relating to two victims. Consecutive sentencing should be permissible and I perceive no basis to disturb the sentence imposed by the sentencing court.

Granted, the impact of the effective reduction in sentence for this defendant is minimal because he received two consecutive sentences of life without parole; where life without parole is concerned, there is no practical difference between consecutive and concurrent sentences. But in cases where a defendant convicted of two or more counts of multiple murder did not receive the maximum sentence, the impact may be substantial. A defendant convicted of killing two people, who received two consecutive sentences of 25 years to life (one for each victim), will now serve 25 years to life rather than the 50 years to life deemed appropriate by the sentencing court. Ironically, consecutive sentencing will remain an option for a defendant who tried to kill two people but succeeded at killing only one; that defendant, convicted of one count of intentional murder and one count of attempted murder, will still be eligible for a 50 years to life sentence. Similarly, as the majority acknowledges, had defendant been convicted only of second-degree murder for each homicide, he could have served consecutive sentences for each of those counts under Penal Law § 70.25 (2) (see People v Truesdell, 70 NY2d 809 [1987]; People v Brathwaite, 63 NY2d 839 [1984]). Defendant having been convicted of the greater offenses, the majority nonetheless concludes concurrent sentencing is required.

The impact of the majority’s ruling on future cases is equally troubling for it significantly curtails the discretion that had been available to sentencing courts. Before today, a court could choose from among a wide range of sentencing options in a case like this one. The court could impose the maximum: consecutive sentences of life without parole (the choice the sentencing court made in this case). Or the court could impose concurrent sentences of 20 or 25 years to life, since a court always has discretion to impose concurrent sentences, even when consecutive sentencing is permissible. And, in the middle range, the court could impose two consecutive sentences of 20 years to life, 25 years to life, or anything in between — meaning a young defendant deemed deserving of some form of leniency might obtain a parole-eligible sentence of 40 or 50 years to life, with the possibility of one day securing parole release.

By holding that consecutive sentencing is impermissible in the context of first-degree multiple murder, the majority has rendered the middle range of sentencing options illegal, leaving sentencing courts with an extreme and limited choice: either impose life without parole or issue a sentence that ensures that defendant will be eligible for parole, at the latest, in 25 years. Since there are scores of defendants convicted of two counts of second-degree murder or attempted murder who are currently serving sentences of 40 or 50 years to life, courts that might otherwise have chosen a comparable sentence for a defendant convicted of multiple murder may now be more inclined to impose life without parole in an effort to achieve some measure of consistency and parity in sentencing. Otherwise, a defendant convicted of first-degree offenses may obtain a significantly shorter sentence than a defendant convicted of second-degree offenses arising from similar homicidal acts. For this reason, I suspect that the result achieved by this defendant (who will not receive any meaningful benefit), will inure to the detriment of future defendants who might have received a lengthy but parole-eligible sentence instead of life without parole.

Nor can the decision to disregard the plain language of the statute be explained as an effort to give effect to legislative intent. No one (not even the majority) argues that the Legislature — which chose to make multiple murder a first-degree crime, putting it in the narrow class of murder “plus” offenses deemed deserving of the highest punishment — intended to preclude consecutive sentencing for this class of first-degree murderers, especially given that consecutive sentencing is permissible for second-degree murders responsible for precisely the same acts. For all of these reasons, because the consecutive sentencing regime imposed by the sentencing court was lawful, I would reverse the order of the Appellate Division.

Chief Judge Kaye and Judges Smith and Jones concur with Judge Ciparick; Judge Graffeo dissents in a separate opinion in which Judges Read and Pigott concur.

Order affirmed.

      . This was defendant’s third trial on these charges. His first trial ended in a mistrial. After a second trial, he was convicted of two counts of first degree murder, two counts of second degree murder and one count of criminal possession of a weapon in the second degree. However, the Appellate Division reversed his conviction and ordered a new trial due to the People’s failure to disclose certain Rosario material (297 AD2d 390 [2d Dept 2002]).

      . Actus reus is defined as “[t]he wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea to establish criminal liability” (Black’s Law Dictionary 39 [8th ed 2004]).

      . Interestingly, if defendant had murdered at least one additional victim in the same transaction, consecutive sentences might be appropriate. For example, he could have been charged with the intentional murder of A with the accompanying murder of B, the intentional murder of B with the accompanying murder of C and the intentional murder of C with the accompanying murder of A. As so charged, none of the counts would have the same actus reus.

      . To adopt the approach proposed by the dissent would not prevent anomalous results. Under their theory there could be no consecutive sentencing if defendant killed both people with the same gunshot, and killing dozens or hundreds of victims with a single bomb would count as only “one act” for consecutive sentencing purposes, since in neither case could we say there were two distinct injurious acts.

      . As the Court explained in People v Ramirez, “[s]ection 70.25 (2) does not prohibit convictions of multiple offenses containing overlapping elements. Rather, the statute prohibits double punishment for an act or omission which violates more than one section of the law and is accordingly punishable in different ways” (89 NY2d 444, 451 n 5 [1996] [emphasis added]). Here, the People did not rely on a single act or omission to charge defendant with violating more than one section of the law.

      . In Laureano, the Court indicated that if defendant had engaged in some other act that caused serious physical injury — e.g., if defendant had also beaten the victim — consecutive sentencing would have been permissible in that case (see Laureano, 87 NY2d at 644-645). Thus, even when there is only one victim, a defendant who engages in multiple injurious acts can be sentenced consecutively for offenses arising from those acts.

      . I do not dispute the majority’s definition of “actus reus” as set forth in Black’s Law Dictionary. But that phrase does not appear in Penal Law § 70.25 (2); rather, the Legislature used the word “act,” a term it defined in the Penal Law. Notably, the Legislature’s definition comports with the definition of “act” in Black’s Law Dictionary, which quotes Model Penal Code § 1.13: “ ‘[A]ct’ or ‘action’ means a bodily movement whether voluntary or involuntary” (Black’s Law Dictionary 26 [8th ed 2004]).

      . If the majority’s point is that most crimes involve numerous bodily acts, I do not disagree. However, this does not present a problem because, for sentencing purposes, we need concern ourselves only with the particular act(s) that fulfill the act element(s) of the offense of which a defendant is charged. For example, to accomplish a second-degree intentional murder, a single act offense, a defendant necessarily engages in many bodily acts — but the only one the People must prove to support the conviction is the act that causes the victim’s death.

      . The majority ruling will result in the elevation of form over substance in the indictment of first-degree multiple murder counts; semantic variations in pleading will now determine whether a defendant can be punished only once or can receive consecutive sentences in a case where more than two victims are killed through distinct homicidal acts. As I interpret the statute, consecutive sentencing for each victim is permissible regardless of whether all the victims are named in each multiple murder count but the same is not true under the majority’s analysis. For example, in a case where defendant killed three victims, if all three are referenced in each count, concurrent sentencing will be required. But, as the majority acknowledges, consecutive sentencing will be permissible if the People name only two of the three victims in each count, thereby pleading three counts of first-degree multiple murder, each containing a different combination of victims. If pleaded in this manner, Penal Law § 70.25 (2) is not implicated, even under the majority’s interpretation of the provision. As such, a defendant who kills three or more people will still be exposed to as many consecutive sentences as there are victims but a defendant who kills two people will be punished only once. I see no evidence that the Legislature intended such an anomalous result, nor do I believe the propriety of consecutive sentencing should vary depending on how the People choose to structure multiple murder counts in the indictment.


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [868 NE2d 208, 836 NYS2d 527]
    Muriel Siebert & Co., Inc., Appellant, v Intuit Inc., Respondent.
    Argued March 28, 2007;
    decided May 8, 2007

      POINTS OF COUNSEL

      Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York City (Dean G. Yuzek, Susan B. Ratner and Jennifer B. Schain of counsel), for appellant.
    The Appellate Division’s holding that Muriel Siebert & Co., Inc. was required to identify precisely what privileged information Nicholas Dermigny imparted to Quinn Emanuel Urquhart Oliver & Hedges, LLP applied an erroneous standard that weakens the attorney-client privilege and deprives the trial court of its discretion to ensure the integrity of the proceedings over which it presides. (Niesig v Team I, 76 NY2d 363; Erie County Water Auth. v Western N.Y. Water Co., 304 NY 342; Jamaica Pub. Serv. Co. v AIU Ins. Co., 92 NY2d 631; Hull v Celanese Corp., 513 F2d 568; Matter of Holtzman, 78 NY2d 184; Matter of Red Hook/Gowanus Chamber of Commerce v New York City Bd. of Stds. & Appeals, 5 NY3d 452; Renault, Inc. v Auto Imports, 19 AD2d 814; Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123; Collier v RAM Partners, Inc., 159 F Supp 2d 889.)

      Quinn Emanuel Urquhart Oliver & Hedges, LLP, New York City (Kathleen M. Sullivan, Claude M. Stern, Marc L. Greenwald and Jonathan B. Oblak of counsel), for respondent.
    I. An interview of an opposing party’s former employee that neither seeks nor elicits privileged information is permissible under existing disciplinary rules and settled precedent. (Niesig v Team I, 76 NY2d 363; Aiken v Business & Indus. Health Group, Inc., 885 F Supp 1474; McGrane v Reader’s Digest Assn., Inc., 822 F Supp 1044; Upjohn Co. v United States, 449 US 383; International Bus. Machs. Corp. v Edelstein, 526 F2d 37; Jamaica Pub. Serv. Co. v AIU Ins. Co., 92 NY2d 631; MMR/Wallace Power & Indus., Inc. v Thames Assoc., 764 F Supp 712; Matter of Weinberg, 129 AD2d 126; Hull v Celanese Corp., 513 F2d 568; Solow v Grace & Co., 83 NY2d 303.) II. Muriel Siebert & Co., Inc.’s proposed change in the law to permit disqualification of counsel based on a mere “appearance of impropriety” or “risk” of disclosure is unworkably vague and subjective and would unduly deter attorneys from conducting ex parte employee interviews. (Develop Don’t Destroy Brooklyn v Empire State Dev. Corp., 31 AD3d 144; Matter of Stephanie X., 6 AD3d 778; Bennett Silvershein Assoc. v Furman, 776 F Supp 800; Niesig v

      Team, I, 76 NY2d 363; John Blair Communications v Reliance Capital Group, 182 AD2d 578; Baliva v State Farm Mut. Auto. Ins. Co., 275 AD2d 1030; O’Donnell, Fox & Gartner v R-2000 Corp., 198 AD2d 154; United States v Beiersdorf-Jobst, Inc., 980 F Supp 257; Solow v Grace & Co., 83 NY2d 303; Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123.) III. In the event that this Court should adopt a new rule of disqualification, any such rule should apply only prospectively. (O’Donnell, Fox & Gartner v R-2000 Corp., 198 AD2d 154; Matter of Abrams [John Anonymous], 62 NY2d 183; People v Arroyave, 49 NY2d 264; Texas Catastrophe Prop. Ins. Assn. v Morales, 975 F2d 1178.)

      Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac of counsel), for New York State Trial Lawyers Association, amicus curiae.
    Disqualification is precluded on this record under Niesig v Team I (76 NY2d 363 [1990]). (Matter of Stephanie X., 6 AD3d 778; Grievance Comm. for S. Dist. of N.Y. v Siméis, 48 F3d 640; International Bus. Machs. Corp. v Edelstein, 526 F2d 37.)

      Pillsbury Winthrop Shaw Pittman LLP, New York City (David G. Keyko of counsel), for the Association of the Bar of the City of New York, amicus curiae.
    I. Limiting the no-contact rule in New York to present employees appropriately balances the need to protect the integrity of the attorney-client relationship from adversarial interference with the need to preserve informal discovery procedures. (Niesig v Team I, 76 NY2d 363.) II. Niesig v Team I (76 NY2d 363 [1990]) properly balances protecting the attorney-client privilege and preserving access to vital information by permitting a lawyer to interview certain employees of adversary corporations and former employees. III. This Court’s holding in Niesig v Team I (76 NY2d 363 [1990]) should not be modified because other provisions of the Code of Professional Responsibility protect against the invasion of the attorney-client privilege in interviews with former employees. IV The lower court’s use of an “appearance of impropriety” standard undercuts recent New York case law and runs counter to the emerging national trend of eliminating the “appearance of impropriety” standard from professional responsibility codes. (Matter of Stephanie X., 6 AD3d 778; People v Herr, 86 NY2d 638; International Elecs. Corp. v Flanzer, 527 F2d 1288; Bennett Silvershein Assoc. v Furman, 776 F Supp 800; Delta Fin. Corp. v Morrison, 13 Misc 3d 1229[A], 2006 NY Slip Op 52059[U]; Saftler v Government Empls. Ins. Co., 95 AD2d 54; Bank of Tokyo Trust Co. v Urban Food Malls, 229 AD2d 14; Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371.)

      Bernstein Litowitz Berger & Grossman LLP, New York City (Darnley D. Stewart of counsel), for National Employment Lawyers Association/New York, amicus curiae.
    I. The Appellate Division correctly overruled the LAS court’s disqualification of defendant’s counsel for interviewing a former employee of its adversary. (Niesig v Team I, 76 NY2d 363; Smith v Kalamazoo Ophthalmology, 322 F Supp 2d 883; Cerqueira v Clivilles, 213 AD2d 202.) II. Reversal of the Appellate Division’s ruling will adversely impact litigants with limited resources. (Postal Service Bd. of Governors v Aikens, 460 US 711; Niesig v Team I, 76 NY2d 363; Mena v Key Food Stores Coop., 195 Misc 2d 402; Smith v Rafalin, 6 Misc 3d 1041[A], 2005 NY Slip Op 50385[U]; Nimkoff v Nimkoff, 18 AD3d 344.)
   OPINION OF THE COURT

Pigott, J.

Plaintiff Muriel Siebert & Co., Inc., a discount brokerage firm, entered into a “strategic alliance” agreement with defendant Intuit Inc., a manufacturer of financial software, to jointly create and operate an Internet brokerage service. Although the parties were initially successful in that endeavor, their relationship became strained when Siebert asserted that Intuit had failed to promote the Internet brokerage service to its customers. In September 2003, Siebert commenced an action against Intuit for, among other things, breach of contract and breach of fiduciary duty in failing to promote Siebert’s business interests.

Nicholas Dermigny, Executive Vice President and Chief Operating Officer for Siebert, was both an important participant in the events at issue in the Intuit lawsuit and a member of Siebert’s “litigation team” after the lawsuit began. He participated in the negotiations of the Siebert-Intuit agreement and discussions with Intuit relating to its implementation. He also assisted in drafting the complaint and responses to interrogatories, was privy to discussions concerning Siebert’s litigation strategy, and engaged in privileged and confidential communications with Siebert’s counsel. In May 2005, Dermigny took a leave of absence to negotiate the terms of his impending separation and eventual termination from Siebert. Counsel for Siebert sought to continue representation of Dermigny at his scheduled deposition, but Dermigny refused. Siebert’s counsel informed an attorney for Intuit that Siebert could not produce Dermigny for the deposition because it no longer had control over him. Therefore, Intuit subpoenaed Dermigny for a deposition rescheduled for September 26, 2005.

Dermigny was terminated by Siebert on September 6, 2005. Upon learning of Dermigny’s termination, Intuit’s attorneys contacted him without Siebert’s knowledge and arranged for an interview. Before commencing the interview, Intuit’s attorneys advised Dermigny that he should not disclose any privileged or confidential information, including any conversations with Siebert’s counsel, or offer any information concerning Siebert’s legal strategy. Dermigny was further cautioned that if, during the interview, he was asked a question that could potentially lead to the disclosure of such information, he should so advise Intuit’s attorneys and decline to answer the question. Intuit’s attorneys then questioned Dermigny about the underlying facts of the case, but did not elicit any privileged information nor inquire about Siebert’s litigation strategy.

Days later, Siebert’s counsel, upon learning of the interview, moved to disqualify Intuit’s attorneys from the case, enjoin them from using any information provided by Dermigny, and stay Dermigny’s deposition. Supreme Court granted Siebert’s motion, disqualified Intuit’s attorneys from the case, ordered the destruction of all notes from their interview with Dermigny, enjoined them from communicating the information they learned during the interview to others, and struck the notice of deposition for Dermigny until such time as Intuit obtained new representation. Supreme Court specifically noted that it was not basing its disqualification determination on DR 7-104 (a) (1) of the Code of Professional Responsibility (22 NYCRR 1200.35 [a] [1]), acknowledging that the rule did not apply because Dermigny was not a Siebert employee at the time of the interview. Rather, Supreme Court held that the disqualification of Intuit’s attorneys was warranted, regardless of whether they actually received privileged information, because there was an “appearance of impropriety” based upon the possibility that privileged information had been disclosed during the interview.

The Appellate Division reversed, holding that disqualification was not justified because Intuit’s attorneys had advised Dermigny not to disclose privileged information and, based on the record, no such information had been disclosed (32 AD3d 284, 286 [1st Dept 2006]). In so holding, the Appellate Division noted that this Court’s opinion in Niesig v Team I (76 NY2d 363 [1990]) “makes it clear that ex parte interviews of an adversary’s former employee are neither unethical nor legally prohibited” (32 AD3d at 285). Pursuant to CPLR 5713, the Appellate Division granted Siebert’s application for leave to appeal to this Court and certified the following question: “Was the order of this Court, which reversed the order of Supreme Court, properly made?” We now affirm and answer the certified question in the affirmative.

In Niesig, we held that DR 7-104 (a) (1) applies only to certain current employees of a party (see Niesig, 76 NY2d at 369). We made clear that ex parte communications with nonmanagerial employees are permitted, but adversary counsel are prohibited from directly communicating with employees who have the power to bind the corporation in litigation, are charged with carrying out the advice of the corporation’s attorney, or are considered organizational members possessing a stake in the representation (see id. at 374, citing Wolfram, Modern Legal Ethics § 11.6, at 613 [Practitioner’s ed 1986]). By so holding, we struck a balance between protecting represented parties from making imprudent disclosures, and allowing opposing counsel the opportunity to unearth relevant facts through informal discovery devices, like ex parte interviews, that have the potential to streamline discovery and foster the prompt resolution of claims (see Niesig, 76 NY2d at 370, 372).

The policy reasons articulated in Niesig concerning the importance of informal discovery underlie our holding here that, so long as measures are taken to steer clear of privileged or confidential information, adversary counsel may conduct ex parte interviews of an opposing party’s former employee. Indeed, there is no disciplinary rule prohibiting such conduct. At the time of the interview, Dermigny no longer had the authority to bind Siebert in the litigation, was no longer charged with carrying out the advice of Siebert’s counsel, and did not have a stake in the representation.

We conclude that disqualification of Intuit’s attorneys is not warranted merely because Dermigny was at one time privy to Siebert’s privileged and confidential information. That does not mean, however, that the right to conduct ex parte interviews is a license for adversary counsel to elicit privileged or confidential information from an opponent’s former employee. Counsel must still conform to all applicable ethical standards when conducting such interviews (see e.g. Code of Professional Responsibility DR 1-102 [a] [5] [22 NYCRR 1200.3 (a) (5)]; Niesig, 76 NY2d at 376; see also Merrill v City of New York, 2005 WL 2923520, *1, 2005 US Dist LEXIS 26693, *3-4 [SD NY, Nov. 4, 2005] [adversary counsel prohibited from asking former employee about privileged communications]; Wright v Stern, 2003 WL 23095571, *1, 2003 US Dist LEXIS 23335, *3 [SD NY, Dec. 30, 2003] [adversary counsel must refrain from seeking to elicit attorney-client communications from an opponent’s former employee]; ABA Comm on Ethics and Prof Responsibility Formal Op 91-359 [1991] [adversary counsel may interview former employees of an opponent but must disclose their role in the matter and whom they represent, and must not induce former employees to disclose privileged communications]).

In this case, Intuit’s attorneys properly advised Dermigny of their representation and interest in the litigation, and directed Dermigny to avoid disclosing privileged or confidential information. They also directed Dermigny not to answer any questions that would lead to the disclosure of such information. Dermigny stated that he understood the admonitions and, on this record, no such information was disclosed. Thus, there is no basis for disqualification.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith and Jones concur.

Order affirmed, etc.

       DR 7-104 (a) (1) provides that:
      “(a) During the course of the representation of a client a lawyer shall not:
      “(1) Communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by a lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so.”


author: Jones, J.

text:
    [869 NE2d 1, 838 NYS2d 1]
    In the Matter of County of Chautauqua, Appellant, v Civil Service Employees Association, Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, et al., Respondents.
    Argued March 22, 2007;
    decided May 1, 2007

      POINTS OF COUNSEL

      Jaeckle Fleishmann & Mugel, LLP, Buffalo (Sean P. Beiter, Scott P Horton and Matthew C. Van Vessem of counsel), for appellant.
    A stay of arbitration is appropriate in this matter. (Matter of Blackburne [Governor’s Off. of Empl. Relations], 87 NY2d 660; Matter of Committee of Interns & Residents [Dinkins], 86 NY2d 478; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Matter of McDermott v New York State Off. of Mental Health, 195 AD2d 932, 82 NY2d 660; Matter of Piekielniak v Axelrod, 92 AD2d 968, 59 NY2d 603; Matter of Barnes [Council 82, AFSCME (Monroe)], 261 AD2d 803, 94 NY2d 719; Matter of Civil Serv. Empls. Assn., Westchester Ch., Local 860 v Town of Harrison, 48 NY2d 66; Pollock v Crosson, 153 Misc 2d 419, 203 AD2d 466; Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364; Matter of Christian v Casey, 76 AD2d 835.)

      Fessenden, Laumer & DeAngelo, Jamestown (Charles S. DeAngelo of counsel), for respondents.
    I. The Fourth Department’s decision appropriately reflects the strong public policy in favor of arbitration of labor disputes. (Matter of City of Plattsburgh [Local 788 & N.Y. Council 66, Am. Fedn. of State, County & Mun. Empls., AFL-CIO], 108 AD2d 1045; Board of Educ. of City of N.Y. v Glaubman, 53 NY2d 781; Matter of Alden Cent. School Dist. v Watson, 56 AD2d 713; Matter of Committee of Interns & Residents [Dinkins], 86 NY2d 478; Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364; Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411; Matter of Silverman [Benmor Coats], 61 NY2d 299; Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132.) II. An arbitrator can issue an award consistent with the collective bargaining agreement and Civil Service Law; therefore, it is not appropriate to preclude arbitration. (Matter of New York City Dept. of Sanitation v MacDonald, 87 NY2d 650; Matter of City of Plattsburgh [Local 788 & N.Y. Council 66, Am. Fedn. of State, County & Mun. Empls., AFL-CIO], 108 AD2d 1045; Matter of Apuzzo v County of Ulster, 98 AD2d 869, 62 NY2d 960; Matter of Blackburne [Governor’s Off. of Empl. Relations], 87 NY2d 660.) III. The Supreme Court erred when it determined that the Third Department’s decision in Matter of City of Plattsburgh (Local 788 & N.Y. Council 66, Am. Fedn. of State, County & Mun. Empls., AFL-CIO) (108 AD2d 1045 [1985]) reflected the current status of the law. (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1; Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364; Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132; Matter of Committee of Interns & Residents [Dinkins], 86 NY2d 478; Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273; Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Piro v Bowen, 76 AD2d 392, 52 NY2d 702; Matter of Niagara Wheatfield Adm’rs Assn. [Niagara Wheatfteld Cent. School Dist.], 44 NY2d 68.) IV. The collective bargaining agreement language, providing that grievances concerning interpretation, application or enforcement of the agreement, existing laws and rules are to be submitted to arbitration except where “otherwise reviewable pursuant to law” does not preclude arbitration of the subject dispute. (Board of Educ. of City of N.Y. v Glaubman, 53 NY2d 781; Board of Educ. of Yonkers City School Dist. v Cassidy, 59 AD2d 180; Matter of County of Steuben [Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO], 292 AD2d 810, 98 NY2d 606.)
   OPINION OF THE COURT

Jones, J.

In this appeal, the Civil Service Employees Association (CSEA) seeks arbitration of grievances concerning layoffs and rights of displacement contained in its collective bargaining agreement (CBA) with the County of Chautauqua. The issue before us is whether the grievances are arbitrable.

Facts and Procedural History

In December 2003, County officials determined that it was necessary to lay off employees for reasons of economy. The County, however, perceived a conflict between section 14.05 of the CBA and Civil Service Law § 80 concerning reductions in force of competitive class civil service positions. Section 14.05 of the CBA provides, in part, that “[a]ll layoffs shall be pursuant” to the following:

“(a) For layoff purposes, an employee’s seniority shall determine the order to be followed. In a department, the employee with the least seniority shall be the first to be laid off until the total number of employees required to decrease forces shall be reached. When all displacement possibilities are exhausted within the department, the employee shall have the right to displace in other departments” (emphasis added).

Civil Service Law § 80 (1), entitled “Suspension or demotion,” in turn, dictates how a public employer must reduce competitive class civil service positions. It provides, in part:

“Where, because of economy, consolidation or abolition of functions, curtailment of activities or otherwise, positions in the competitive class are abolished or reduced in rank or salary grade, suspension or demotion, as the case may be, among incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs” (emphasis added).

Further, section 80 (4) provides, in part that: “Upon the abolition or reduction of positions in the service of a civil division, suspension or demotion shall be made from among employees holding the same or similar positions in the entire department or agency within which such abolition or reduction of positions occurs” (emphasis added).

Accordingly, the County solicited advice from the Department of Civil Service concerning its view of the conflict between the statute and the CBA — specifically, that the CBA required that layoffs be made solely on the basis of seniority, irrespective of position or title, whereas section 80 mandates that layoffs be made by seniority within a position. In response, the Department advised the County that a collective bargaining agreement “may not alter the layoff units prescribed by section 80 (4).”

After sharing the Department’s opinion with CSEA, the County proceeded to lay off approximately 30 employees, which CSEA grieved. CSEA alleged, among other things, that the County violated section 14.05 of the CBA by refusing to (1) lay off “the employees with the least seniority within a department until the total number of employees required to decrease forces in that Department was reached” and (2) allow “employees to displace employees in other departments after they exhausted displacement rights in their own departments.” The County objected to the arbitrability of these issues. After an unfavorable determination at a Step Three grievance hearing, CSEA served upon the County a notice of intent to arbitrate. The County then commenced this CPLR article 75 proceeding seeking a permanent stay of arbitration as to all issues. CSEA opposed the petition and cross-moved to compel arbitration.

The County asserted — and presses here — two issues that it deems repugnant to public policy as embodied in Civil Service Law § 80. It argues that CBA § 14.05 violates public policy because, whereas section 80 (1) allows for layoffs by seniority within a job title or position, the CBA mandates that layoffs occur only by seniority. According to the County, the CBA inescapably forces it “to lay off every other less senior employee in the layoff unit (and eliminate essential positions) before it could ever eliminate the non-essential position.” The County also asserts that another clause of the same CBA provision violates Civil Service Law § 80 (4) by permitting interdepartmental displacements, or “bumping.”

Supreme Court granted, in part, the County’s petition to stay arbitration and denied, in part, CSEA’s cross motion. The court agreed with the County that a conflict existed between Civil Service Law § 80 (4) and CBA § 14.05. Relying on Matter of City of Plattsburgh (Local 788 & N.Y. Council 66, Am. Fedn. of State, County & Mun. Empls., AFL-CIO) (108 AD2d 1045 [3d Dept 1985]), the court held that such a conflict was for a court, not an arbitrator, to resolve. Accordingly, it granted the County’s petition, in part, and stayed arbitration to the extent that CSEA’s demands concerned claims or rights on behalf of employees who were in “the Competitive Classification under the Civil Service Law.” The court, however, concluded that because section 80 (4) did not apply to noncompetitive or labor class employees, arbitration was permissible as to them and granted CSEA’s cross motion to that extent.

On an appeal to the Appellate Division from so much of the order as stayed arbitration, that court unanimously reversed and granted CSEA’s cross motion to compel arbitration in its entirety (26 AD3d 843 [2006]). Acknowledging the conflict between the parties’ contract and the Civil Service Law, the court nonetheless held that such a conflict was “merely theoretical” (id. at 844). The court concluded that the entire dispute was arbitrable because the statute did not contain “ ‘clear exclusionary language’ ” that precluded arbitration (id., quoting Matter of Alden Cent. School Dist. v Watson, 56 AD2d 713, 714 [4th Dept 1977]). We disagree and now modify the Appellate Division’s order.

Discussion

The Taylor Law empowers and, in fact, requires a public employer to bargain with employee organizations and to enter written agreements governing the terms and conditions of employment (see Civil Service Law § 204 [1], [2]; see also Matter of Professional, Clerical, Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90 NY2d 364, 372 [1997]). An employer has wide latitude to negotiate such terms and can agree to submit disputes to arbitration subject, however, to “the absence of ‘plain and clear’ prohibitions in statute or controlling decision[al] law, or restrictive public policy” (Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268, 273 [1976] [citations omitted]). Thus, although the Taylor Law reflects this State’s “strong” policy favoring arbitration, this principle is not without limits (Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563, 575 [2006]; see Matter of New York City Dept. of Sanitation v MacDonald, 87 NY2d 650, 656 [1996]; Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137, 143 [1975]).

The threshold determination of whether a dispute is arbitrable is well settled. Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if “there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” (Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, 278 [2002]). If no prohibition exists, we then ask whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement. If there is a prohibition, our inquiry ends and an arbitrator cannot act (see Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 80 [2003]; Matter of Blackburne [Governor’s Off. of Empl. Relations], 87 NY2d 660, 665 [1996]).

A dispute is, thus, nonarbitrable, if a court can conclude “ ‘without engaging in any extended factfinding or legal analysis’ ” that a law “ ‘prohibits], in an absolute sense, [the] particular matters [to be] decided’ ” by arbitration (Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1, 8-9 [2002], quoting Matter of Sprinzen [Nomberg], 46 NY2d 623, 631 [1979]; see Matter of United Fedn. of Teachers, 1 NY3d at 80). Put differently, a court must stay arbitration where it can conclude, upon examining the parties’ contract and the implicated statute on their face, “that the granting of any relief would violate public policy” (Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273, 284 [2000]; see Matter of Blackburne, 87 NY2d at 665; Matter of Committee of Interns & Residents [Dinkins], 86 NY2d 478, 484 [1995]; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660, 668 [1990]; Matter of Sprinzen [Nomberg], 46 NY2d at 631; cf. Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411, 418 [1978]).

Addressing CSEA’s first grievance regarding layoffs, the County asserts that section 14.05 of the CBA impermissibly modifies an essential public policy embodied in Civil Service Law § 80. The County argues that

“[s]ection 80 first requires municipalities to decide which titles are essential and then protects the senior employees in such titles. The CBA provision, however, represents an impermissible intrusion on this statutory scheme, by protecting specific persons, rather than necessary positions, regardless of the municipality’s operational needs or the community’s service needs” (Petitioner’s Brief at 16).

We agree.

In Honeoye Falls-Lima Cent. School Dist. v Honeoye Falls-Lima Educ. Assn. (49 NY2d 732 [1980]), we addressed a similar conflict. In that case, at issue was a job security provision in the parties’ contract that required layoffs of those employees with the least seniority in the school district. Education Law § 2510 (2), however, directed that “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued” (emphasis added). We concluded that the statutory imperative of section 2510 (2) was “to maintain teaching proficiency which would otherwise be denigrated if, for example, the abolition" of three vocational training positions required the dismissal of three teachers of romance languages, or vice versa, simply because they happened to have been the last three persons employed” (Honeoye Falls-Lima, 49 NY2d at 733). The school board, we held, could not surrender through collective bargaining “a responsibility vested in the board” — namely, the maintenance of adequate classroom standards (id. at 734).

Our holding in Matter of Civil Serv. Empls. Assn., Westchester Ch., Local 860 v Town of Harrison (48 NY2d 66 [1979]) is also instructive. In that case, the town — for reasons of economy and efficiency — abolished an engineering position and terminated the employee who occupied that position. Simultaneously, the town consolidated the duties left vacant by the abolition within a similar, remaining position. The union sought arbitration under a CBA provision that required it to be notified when a new job title or opening was created, and to offer that position to a senior qualified employee. We held, however, that Civil Service Law § 22 expressly dictated a procedure for creating new positions. Under section 22, the ultimate decision whether to create a new position rested with the town, subject to approval and certification by the municipal civil service commission and was, thus, “ ‘beyond the power of the parties to alter or modify . . . by collective bargaining, agreement to arbitrate or otherwise’ ” (id. at 74, quoting Nyquist, 38 NY2d at 144).

At oral argument here, CSEA conceded — as it must — that under the CBA, the County would retain no power to decide which positions to eliminate. Contrary to CSEA’s contention, however, the County could not cede the statutory imperative to render such decisions.

As in Honeoye Falls-Lima, “inescapably implicit” from a plain reading of section 80 (1) is that a public employer has a nondelegable discretion to determine — for reasons of economy, among others — what its staffing and budgetary needs are in order to effectively deliver uninterrupted services to the public (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778 [1976]; see Board of Educ., Great Neck Union Free School Dist. v Areman, 41 NY2d 527, 532-533 [1977]). We reiterate the obvious: in the absence of bad faith, fraud or collusion, the discretion identified here “is an undisputed management prerogative” for the public’s benefit, and cannot be altered or modified by agreement or otherwise (Matter of Saur v Director of Creedmoor Psychiatric Ctr., 41 NY2d 1023, 1024 [1977]; see Matter of Piekielniak v Axelrod, 92 AD2d 968, 969 [3d Dept 1983], lv denied 59 NY2d 603 [1983]). Once such an informed decision is made, section 80 (1) obligates the employer to respect the seniority rights of its employees. Succinctly put, under the CBA, seniority controls the abolition of positions; under the statute, seniority controls only after the employer decides which positions will be affected. This conflict is plainly irreconcilable.

Turning to CSEA’s grievance regarding displacement rights, the County argues that under Civil Service Law § 80 (4), employees can only displace less senior employees within the affected department, and that section 80 (4) does not permit interdepartmental bumping. The nonarbitrability of this issue, however, is less clear.

Civil Service Law § 80 (4) provides that “[u]pon the abolition or reduction of positions . . . , suspension or demotion shall be made from among employees holding the same or similar positions in the entire department or agency within which such abolition or reduction of positions occurs.”

No explicit language in section 80 (4) can be read to prohibit, in an absolute sense, a public employer from agreeing to permit employees to “bump” less senior employees in another department or division within the same layoff unit. Nor can we find any implicit public policy reason that precludes such an agreement (see Matter of Saur, 41 NY2d at 1024). To be sure, CSEA’s claim to interdepartmental displacement rights may be viable only to the extent that the second department or agency comes within the same layoff unit as the originating department or agency (see Civil Service Law § 80 [6]). In such a case, it is true that an arbitral award that would permit interdepartmental bumping into a different layoff unit would run afoul of the Civil Service Law. However, such an award is not inevitable. Thus, it is sufficient that an arbitrator, fashioning an award under the CBA, could comply with the statute (see Matter of Commitee of Interns & Residents, 86 NY2d at 484; New York State Pub. Empl. Relations Bd., 75 NY2d at 668; Matter of Port Washington Union Free School Dist., 45 NY2d at 417).

In sum, because public policy precludes arbitration of CSEA’s primary grievance as to the layoff of certain employees, the County’s petition to stay arbitration is granted, in part. However, because no clear public policy precludes arbitration of CSEA’s secondary grievance concerning displacement rights, CSEA’s cross motion to compel arbitration is granted to that extent.

Accordingly, the order of the Appellate Division should be modified, without costs, in accordance with this Opinion and, as so modified, affirmed.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read and Smith concur; Judge Pigott taking no part.

Order modified, etc.


text:
    [868 NE2d 956, 837 NYS2d 600]
    W. Edward Bailey et al., Appellants, v Fish & Neave et al., Respondents.
    Argued March 28, 2007;
    decided May 8, 2007
    POINTS OF COUNSEL

      Jeffrey A. Jannuzzo, New York City, for appellants.
    I. The words “the partnership business” do not convey the power to amend the partnership agreement itself. (Cohen v Lord, Day & Lord, 75 NY2d 95; Denburg v Parker Chapin Flattau & Klimpl, 82 NY2d 375; Hackett v Milbank, Tweed, Hadley & McCloy, 86 NY2d 146; Dawson v White & Case, 88 NY2d 666.) II. Even if it can be amended, a partnership agreement cannot be retroactively “amended” to confiscate vested earnings. (Bier Pension Plan Trust v Estate of Schneierson, 74 NY2d 312; Becker v Faber, 280 NY 146; Polyfusion Elec., Inc. v AirSep Corp., 30 AD3d 984; Todd v Weber, 95 NY 181; Flemington Natl. Bank & Trust Co. [N.A.] v Domler Leasing Corp., 65 AD2d 29, 48 NY2d 678; Gelder Med. Group v Webber, 41 NY2d 680; Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399; Sibbald v Bethlehem Iron Co., 83 NY 378; Ashland Mgt. v Janien, 82 NY2d 395; Wakefield v Northern Telecom, Inc., 769 F2d 109.)

      Simpson Thacher & Bartlett LLP, New York City {Roy L. Rear-don of counsel), for respondents.
    I. The amended complaint was properly dismissed on the ground that documentary evidence established as a matter of law that the partnership agreed to be governed by majority rule on all questions related to the partnership. (Riviera Congress Assoc. v Yassky, 18 NY2d 540; Lanier v Bowdoin, 282 NY 32; Corr v Hoffman, 256 NY 254; Polner v Monchik Realty Co., 9 Misc 3d 755; Chalmers v Weed, 175 Misc 740.) II. The amended complaint was properly dismissed on the ground that documentary evidence established as a matter of law that the amendment is valid. (Jackson v Hunt, Hill & Betts, 1 NY2d 180; Rotenberg v Chamberlain, D’Amanda, Oppenheimer & Greenfield, 248 AD2d 1021; St. James Plaza v Notey, 111 AD2d 228; Gelder Med. Group v Webber, 41 NY2d 680; Stuart v Lane & Mittendorf, 235 AD2d 294; Wolfson v Rosenthal, 210 AD2d 47; Smith v Brown & Jones, 167 Misc 2d 12; Cohen v Lord, Day & Lord, 75 NY2d 95; Denburg v Parker Chapin Flattau & Klimpl, 82 NY2d 375; Reiner v Townley & Updike, 243 AD2d 338.)
   OPINION OF THE COURT

Jones, J.

At issue is the propriety of an amendment to a partnership agreement affecting compensation to withdrawing partners and passed by a majority of the shares in interest of the partnership. Because the agreement, by its terms, unambiguously permits amendments thereto by majority vote, we conclude that the agreement was properly amended, and affirm the Appellate Division order so holding.

Plaintiffs were former equity partners at defendant Fish & Neave, an intellectual property law firm. The firm was governed by a partnership agreement entered into on January 1, 1970 (Agreement). Although the Agreement contains no specific amendment provision, section 6 provides that “[i]n all questions relating to the partnership business (including dissolution of the partnership) the decision of a majority in interest of the partners . . . shall be conclusive upon and bind all the partners, except as otherwise provided herein.” Sections 9 and 16.7 (a) are the only provisions that specifically qualify the “majority vote” requirement on certain questions relating to the partnership business. Under section 9, “a partner . . . may be severed from [the] partnership by a vote of at least two-thirds of all the then number of partners.” Section 16.7 (a) provides that certain payment rights of an elder or retired partner cannot be changed without the written consent of such partner or of his or her estate if such partner is deceased. On the other hand, section 11 of the Agreement, which provides for the amount and timing of payments to withdrawing partners, contains no language qualifying the Agreement’s “majority vote” provision.

In December 2003, the firm decided to change its accrual-based accounting system to a cash-based system, a decision that would affect the way withdrawing partners were compensated under section 11 of the Agreement. The firm based this decision, in large part, on an increase in the number of withdrawing partners and its inability — due to its use of the accrual-based system — to attract lateral partners or merger opportunities with firms that employ the more common cash-based system. Further, the firm was advised that maintaining its current system could significantly detract from its health and success over time and possibly jeopardize its ongoing viability. In contemplation of a permanent amendment to the Agreement affecting compensation to withdrawing partners, the firm adopted two interim “standstill” amendments to the Agreement, which were binding on all active partners. The first passed by a majority of the shares in interest of the partnership on December 23, 2003 and added a new section 11 (C), which expressly amended the Agreement provision regarding withdrawing partners. The first “standstill” amendment provided that

“[t]he rights of any partner who voluntarily leaves the partnership effective on or after December 15, 2003 and on or before March 31, 2004, to receive payments from the partnership after the effective date of such partner’s leaving, shall be governed solely by the [permanent amendment ultimately enacted after December 23, 2003 and by January 1, 2005].”

This amendment expired on March 31, 2004. The second “standstill” amendment, which passed by a majority vote on March 15, 2004, provided the partners additional time to consider and approve the above-mentioned permanent amendment. It also reiterated most of the key points of the first amendment, but provided that the rights of partners who withdraw on or after December 23, 2003 and on or before May 31, 2004 would be governed by the permanent amendment ultimately enacted after March 15, 2004 and by June 1, 2004 (the same day this interim amendment expired). Plaintiffs were active partners when both “standstill” amendments were adopted. Plaintiff Culligan voted in favor of both amendments, while plaintiff Bailey voted against them.

On April 16, 2004, Bailey gave written notice of his intent to withdraw from the firm and asked for a waiver of the firm’s 60-day notice requirement for withdrawing partners. By letter dated May 12, 2004, Bailey advised the firm that he would withdraw by the close of business on May 14, 2004; however, as he never accepted the terms offered by the firm as a precondition to the requested waiver, the firm set the effective date of his withdrawal at May 28, 2004. Enclosed with Bailey’s withdrawal letter was a proxy stating that he would vote against any amendment to the Agreement if the firm still deemed him to be a partner. On the same date of Bailey’s withdrawal letter, Culligan also gave written notice of his intent to withdraw. Enclosed with his notice of withdrawal was a proxy stating that he would vote against any amendment to the Agreement if the firm still deemed him to be a partner. Culligan withdrew on June 25, 2004.

On May 17, 2004, while plaintiffs were still active partners, the permanent amendment at issue passed by majority vote, retroactive to January 1, 2004. Under the permanent amendment, the firm eliminated its accrual-based accounting system and converted to a cash-based system. This change affected the amount and timing of payments to withdrawing partners in a number of ways. First, the “pipeline” payments that existed under the accrual-based system were replaced by “Special Distributions” that were to be paid to withdrawing partners over a five-year period upon the later of retirement or reaching the age of 65. Further, the amendment altered the timing and amount of the return of a withdrawing partner’s capital. All active partners were bound by and all future withdrawing partners were treated the same under the amended Agreement.

Plaintiffs thereafter commenced this action sounding in, among other things, breach of contract. Specifically, plaintiffs alleged that (1) defendants refused to honor their rights under the Agreement to return of their capital and payment of their shares of accrued partnership income and contingent fee income, and (2) the permanent amendment should be declared invalid. Moreover, plaintiffs asserted that in passing the permanent amendment by a majority, rather than a unanimous vote, defendants violated New York Partnership Law § 40 (8), which provides:

“The rights and duties of the partners in relation to the partnership shall be determined, subject to any agreement between them, by the following rules: . . .
“Any difference arising as to ordinary matters connected with the partnership business may be decided by a majority of the partners; but no act in contravention of any agreement between the partners may be done rightfully without the consent of all the partners” (emphasis added).

Defendants filed a pre-answer motion to dismiss the amended complaint and plaintiffs cross-moved to convert the motion to dismiss to a motion for summary judgment (1) on the issue of liability and (2) seeking a declaration that the permanent amendment is invalid.

Supreme Court dismissed the amended complaint, ruling that the Agreement, by its terms, “permit [ted] an amendment, regarding the amount and timing of payments to a withdrawing partner, such as the one at issue here, . . . by a majority vote” and held that the Agreement was “appropriately amended” (7 Misc 3d 1023[A], 2005 NY Slip Op 50713[U], *6). In so holding, the court rejected plaintiffs’ argument that under Partnership Law § 40 (8), the permanent amendment could only be passed by unanimous consent of the partners. The Appellate Division affirmed (30 AD3d 48 [2006]); we granted leave to appeal and now affirm.

“Whether a contract is ambiguous is a question of law and extrinsic evidence may not be considered unless the document itself is ambiguous” (South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d 272, 278 [2005], citing Greenfield v Philles Records, 98 NY2d 562, 569 [2002]). However, “when parties set down their agreement in a clear, complete document, their writing should ... be enforced according to its terms” (Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004], quoting W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]; see Springsteen v Samson, 32 NY 703, 706 [1865] [“where the language is clear, unequivocal and unambiguous, the contract is to be interpreted by its own language”]). Such agreements should be read as a whole to ensure that undue emphasis is not placed upon particular words and phrases (see South Rd. Assoc., 4 NY3d at 277, citing Matter of Westmoreland Coal Co. v Entech, Inc., 100 NY2d 352, 358 [2003]). Moreover, courts “may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing” (Vermont Teddy Bear, 1 NY3d at 475, quoting Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001]).

These principles are applicable to partnership agreements. It is well settled that partners may fix their partnership rights and duties by agreement (see Lanier v Bowdoin, 282 NY 32 [1939]; Corr v Hoffman, 256 NY 254 [1931]). On this point, we previously held that

“[i]n the absence of prohibitory provisions of the statutes or of rules of the common law relating to partnerships, or considerations of public policy, the partners of either a general or limited partnership, as between themselves, may include in the partnership articles any agreement they wish concerning the sharing of profits and losses, priorities of distribution on winding up of the partnership affairs and other matters. If complete, as between the partners, the agreement so made controls” (Lanier, 282 NY at 38).

In the present case, the Agreement, read as a whole, makes clear that (1) all questions related to the partnership, including its dissolution, may be decided by a majority vote, unless the Agreement provides otherwise, and (2) the partnership agreed to be bound by the “decision of a majority” on all partnership questions (see Agreement § 6). Accordingly, Partnership Law § 40 (8), which contains default provisions to be used “in the absence of an agreement between the partners on the same subject matter” (Lanier, 282 NY at 38), is inapplicable. As this Court stated, “ [provisions of [Partnership Law § 40] cannot be implied as part of the agreement so as to make a different contract from that which the parties intended nor override the agreement which the parties, in fact, made” (id. at 40, citing Levy v Leavitt, 257 NY 461, 470 [1931]).

In support of this interpretation, we note that it would be anomalous for the firm to be able to bring about the most fundamental change — dissolution—by majority vote and not be able to amend its compensation/payment system without the unanimous consent of the partners. We further note that sections 9 and 16.7 (a) of the Agreement contain language qualifying the “majority vote” provision, while section 11, the amended provision at issue here, does not. Plainly, where the firm intended for more than a majority vote to govern regarding a particular question related to the partnership, it so specified in the Agreement. Based on the foregoing, we conclude that under the Agreement, a majority vote suffices to pass proposed amendments involving such questions.

Plaintiffs’ remaining contentions lack merit.

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

Chief Judge Kaye and Judges Ciparick, Graffeo, Read and Pigott concur; Judge Smith taking no part.

Order affirmed, with costs.

      . Fish & Neave LLR which came into existence on or about September 30, 2004, was the successor to Fish & Neave. Both firms merged into Ropes & Gray LLP on or about January 1, 2005. Fish & Neave, Fish & Neave LLP and Ropes & Gray LLP are all named defendants.

      . Under the firm’s then-existing accounting system, fees for professional time were recorded as revenue when received from clients, not when earned; as such, a partner was not entitled to a share of profits for completed work until the client paid. Under section 11 of the Agreement, a withdrawing partner was entitled to “pipeline” payments, i.e., his or her share of (1) compensation received by the firm after withdrawal for work done prior to withdrawal, (2) the partnership profits and (3) contingent fee income for work completed prior to withdrawal. In addition, section 16.5 (a) of the Agreement provided that a withdrawing partner was entitled to repayment of capital interest in the firm by the end of the current tax year.


text:
    [869 NE2d 7, 838 NYS2d 7]
    The People of the State of New York, Respondent, v Arthur Bryant, Appellant.
    Argued March 20, 2007;
    decided May 3, 2007

      POINTS OF COUNSEL

      Legal Aid Society, Criminal Appeals Bureau, New York City (Kristina Schwarz and Steven Banks of counsel), for appellant.
    The court erred in summarily denying appellant’s Mapp/Dunaway motion where appellant denied acting as a principal or accomplice in the stabbing and generally challenged the reliability and basis of knowledge of the apparent source of the prosecution’s information, an unnamed informant. (Dunaway v New York, 442 US 200; Mapp v Ohio, 367 US 643; People v Mendoza, 82 NY2d 415; People v Hightower, 85 NY2d 988; People v Jones, 95 NY2d 721; People v Lopez, 5 NY3d 753; People v Burton, 6 NY3d 584; Spinelli v United States, 393 US 410; Aguilar v Texas, 378 US 108; People v Bigelow, 66 NY2d 417.)

      Robert M. Morgenthau, District Attorney, New York City (Victoria E. Phillips and Eleanor J. Ostrow of counsel), for respondent.
    The trial court’s summary denial of defendant’s motion to suppress physical, testimonial and identification evidence as the fruits of an unlawful arrest was proper, because defendant failed to assert any facts supporting that claim. (United States v Wade, 388 US 218; People v Huntley, 15 NY2d 72; People v Mendoza, 82 NY2d 415; People v Gruden, 42 NY2d 214; People v Chipp, 75 NY2d 327, 498 US 833; People v Holder, 149 AD2d 325, 74 NY2d 794; People v Adams, 53 NY2d 241; People v Castillo, 80 NY2d 578, 507 US 1033; People v Arnau, 58 NY2d 27, 468 US 1217; People v McGrath, 46 NY2d 12, 440 US 972.)
   OPINION OF THE COURT

Jones, J.

The issue on appeal is whether Supreme Court properly denied defendant’s motion for a Mapp/Dunaway hearing on the ground that defendant failed to present sufficient information to obtain a hearing where defendant denied acting as the principal or accomplice, raised a question of fact regarding the timing of his arrest and challenged the reliability of the alleged witness. Based on defendant’s factual allegations, it was error to deny the hearing. We therefore reverse the order of the Appellate Division and remit the matter to Supreme Court for further proceedings.

On May 30, 2003 at 12:10 p.m., in the vicinity of 132nd Street and 7th Avenue in Manhattan, Johnny Speller (decedent) was stabbed to death. Defendant was arrested for the crime later that day and subsequently indicted for second-degree murder (see Penal Law § 125.25 [1]). After indictment, the People served defendant with a Voluntary Disclosure Form (VDF), which stated, in part, that a “[w]itness picked out [defendant’s] photo” on May 30, 2003 at 12:45 p.m.

Defendant moved to suppress all evidence proffered against him. In his supporting affirmation, defendant claimed that he was seized and arrested without a warrant sometime after 12:30 p.m. and transported to the 32nd precinct where he was interrogated for approximately six hours and property was removed from his person. Defendant denied that he acted as either principal or accomplice in the stabbing and stated that he had no knowledge of what, if any, information the police relied upon to seize, interrogate and place him in lineups. Based upon the information available to him, defendant averred that the only information known to the police at the time of his arrest was that (1) a stabbing had occurred on May 30, 2003 in the area of 132nd Street and 7th Avenue and (2) his photograph had been picked out by an unknown witness whose source of information — whether the alleged witness actually observed the crime, or only relied on hearsay — was uncertain. It is undisputed that defendant sought the informant’s name and that the People refused to provide the information.

Further, defendant alleged that it was unclear whether he was identified as (1) having engaged in any criminal activity, (2) a person who frequented the area, (3) a person associated with the victim or (4) a person seen in the area at the time of the incident. Defendant argued that “[n]one of the People’s written or oral communications have set forth facts constituting probable cause justifying his seizure” and that he was “therefore unable to proffer factual allegations as to the lack of probable cause.”

In opposition, the People argued that defendant did not establish a factual dispute that required a hearing. They argued that defendant failed to “dispute the facts set forth in the complaint,” VDF and/or the indictment and that, in fact, those sources specified that at least one witness identified defendant “and that he also made admissions to having committed the crime.”

Supreme Court denied the Mapp/Dunaway hearing, stating, in part:

“I’m denying a Mapp/Dunaway.
“The VD.F. makes clear that the defendant was identified in a photo array prior to the arrest and that subject will be the issue of a Wade Hearing, in any event.
“And the other matters which are referred to as unknown in the defense motion could have been discovered through a proper demand.
“So I’m granting a Huntley and a Wade Hearing.”

Thereafter, defendant pleaded guilty. The Appellate Division unanimously affirmed, holding that, given the information available to defendant, his conclusory assertions were insufficient to create a factual issue requiring a hearing (30 AD3d 1131 [2006]). A Judge of this Court granted defendant leave to appeal and we now reverse.

Pursuant to CPL 710.60 (1), a suppression motion must contain sworn allegations of fact stating the ground or grounds for the motion. “Hearings are not automatic or generally available for the asking by boilerplate allegations” (People v Mendoza, 82 NY2d 415, 422 [1993]). The sufficiency of the factual allegations should be (1) evaluated by the face of the pleadings, (2) assessed in conjunction with the context of the motion and (3) evaluated by defendant’s access to information (id. at 426). Applying the Mendoza factors, we conclude that defendant’s motion for a Mapp/Dunaway hearing should have been granted.

In determining the sufficiency of a defendant’s factual allegations, a court must read defendant’s suppression motion in the context of the case. Further, “[w]hether a defendant has raised factual issues requiring a hearing can only be determined with reference to the People’s contentions” (Mendoza, 82 NY2d at 427). Here, defendant alleged that he was arrested at sometime after 12:30 p.m. in a building where he resides and away from where the crime took place. The People disputed this allegation and stated in their disclosure forms that defendant was not arrested until 7:30 p.m., after he had been identified by their witness and had made statements to the police. The time of arrest is, thus, in dispute because if defendant was arrested before his arrival at the police station, the only basis for probable cause was the witness identification.

Moreover, a court must consider “the degree to which the pleadings may reasonably be expected to be precise in view of the information available to defendant” (id. at 429). In People v Hightower (85 NY2d 988 [1995]), defendant was charged with the sale of drugs. In his motion papers, defendant denied he sold drugs or assisted others in selling or possessing drugs. We held that those “allegations were sufficient when considered in the context of the case and in light of the minimal information available to the defendant at the time of the motion limited, as he was, by the bare allegations in the complaint” (id. at 990). We observed that, based upon the meager information available to him, “defendant could do little but deny participation in the sale” (id.).

Here, defendant also lacked critical information only the People could provide — i.e., the factual predicate for his arrest. Because defendant lacked this information, he was not in a position to allege facts disputing the basis for his arrest.

The People could not both refuse to disclose the informant’s identity, or at least some facts showing a basis for the informant’s knowledge the police relied upon to establish probable cause for the arrest, and insist that defendant’s averments in his pleadings were insufficient to obtain a Mapp/Dunaway hearing. Without more information, defendant could do little more than dispute the circumstances surrounding his arrest. Like the defendant in Hightower, defendant’s lack of access to information precluded more specific factual allegations and created factual disputes, the resolution of which required a hearing.

Based on the foregoing, we hold that Supreme Court erred in summarily denying the Mapp/Dunaway hearing.

Accordingly, the Appellate Division order should be reversed, the plea vacated, and the case remitted to Supreme Court for further proceedings in accordance with this opinion.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith and Pigott concur.

Order reversed, etc.

      . See generally, Dunaway v New York, 442 US 200 (1979); Mapp v Ohio, 367 US 643 (1961).

      . To establish probable cause for defendant’s arrest, the People must establish the reliability of the witness and that person’s basis of knowledge (see Spinelli v United States, 393 US 410 [1969]; Aguilar v Texas, 378 US 108 [1964]). As the People did not provide any information regarding the witness, they did not meet the requirements of the Aguilar/Spinelli test.


author: Ciparick, J.

text:
    [869 NE2d 14, 838 NYS2d 14]
    The People of the State of New York, Respondent, v Stephen Sedlock, Appellant.
    Argued May 2, 2007;
    decided June 5, 2007

      POINTS OF COUNSEL

      Pope, Schrader & Sacco, LLP, Binghamton (James A. Sacco of counsel), for appellant.
    I. The information was defective in that it was conclusory and did not allege a mental state. (People v Dumas, 68 NY2d 729; People v Alejandro, 70 NY2d 133.) II. The information is defective because the time span alleged is so expansive as to be violative of defendant’s constitutional rights. (People v Morris, 61 NY2d 290; People v Keindl, 68 NY2d 410, 69 NY2d 823; People v Beauchamp, 74 NY2d 639; People v Watt, 81 NY2d 772; People v Sanchez, 84 NY2d 440.) III. The People failed to prove a prima facie case. (People v Dumas, 156 Misc 2d 1025; People v Kennedy, 47 NY2d 196; People v Wager, 199 AD2d 642, 83 NY2d 811; People v Calabria, 3 NY3d 80; People v Jackson, 65 NY2d 265; People v Stewart, 40 NY2d 692; People v Carthrens, 171 AD2d 387; People v Leslie, 154 Misc 2d 325, 232 AD2d 94, 91 NY2d 875; People v Symbato, 72 AD2d 780; People v Leo, 109 Misc 2d 933.)

      Gerald E Mollen, District Attorney, Binghamton (Peter N. DeLucia of counsel), for respondent.
    I. The information was sufficient as a matter of law because the elements could be inferred from the accusatory instrument and its supporting deposition. (People v Alejandro, 70 NY2d 133; People v Mizell, 72 NY2d 651; People v Henderson, 92 NY2d 677; People v Rojas, 61 NY2d 726; People v Inserra, 4 NY3d 30; People v Victor P., 120 Misc 2d 770; People v Prevete, 10 Misc 3d 78; People v Rodriguez, 1 Misc 3d 8.) II. The time period alleged in the accusatory instrument was not unconstitutionally overbroad. (People v Keindl, 68 NY2d 410; People v Morris, 61 NY2d 290; People v Bogdanoff, 254 NY 16; People v Watt, 81 NY2d 772; People v Beauchamp, 74 NY2d 639.) III. The People established a prima facie case at trial. (People v Lane, 7 NY3d 888; People v Payne, 3 NY3d 266; People v Hines, 97 NY2d 56; People v Calabria, 3 NY3d 80; People v Contes, 60 NY2d 620; People v Watson, 281 AD2d 691, 96 NY2d 925; People v Beecher, 225 AD2d 943; People v Dehler, 216 AD2d 643; People v Pinkoski, 300 AD2d 834; People v Molineux, 168 NY 264.)
   OPINION OF THE COURT

Ciparick, J.

The issue in this appeal is whether the People presented defendant with sufficient notice of the nature of the accusation by delineating in the information a seven-month time period during which the alleged criminal act occurred. We hold that, under People v Morris (61 NY2d 290 [1984]) and People v Watt (81 NY2d 772, 774 [1993]), the People have failed to show that an allegation of so broad a time frame was necessary under the circumstances presented in this case.

Defendant, a funeral director and scoutmaster for a Boy Scout troop, was arraigned on one charge of forcible touching under Penal Law § 130.52, a class A misdemeanor. The charge stems from his relationship with a boy, the complainant, a member of defendant’s troop. The relationship between complainant and defendant developed over the course of several years to the extent that complainant often referred to defendant and his wife as his parents. After complainant’s strained relationship with his own stepfather led him to move out of his home, he sought refuge with defendant and his family. Complainant resided in defendant’s home from December 2002 to July 2003. However a year later, in May 2004, complainant, then age 18, reported to the police that he had been inappropriately touched by defendant many times over the years and that he had delayed in telling the authorities as he was embarrassed and hurt and suffered stress-related illnesses as a result of the incidents.

The information filed with City Court states:

“That from December 2002 through June 2003, at [defendant’s home], the said defendant, did with no legitimate purpose, forcibly touch the sexual or other intimate parts of another person: for the purpose of gratifying the actor’s sexual desire. To wit; said defendant did touch a 17 year [old’s] penis and did kiss him on the lips.”

The People further submitted a supporting deposition in which complainant described his relationship with defendant and detailed various instances of forcible touching. The deposition contained allegations of specific conduct occurring on a camping trip in Pennsylvania in April 2001 where complainant awoke to find defendant touching him in an inappropriate and unwanted manner. Complainant also alleged that “some times during the days I lived [in defendant’s home] we would play fight and he would pinch my penis over my clothes.”

Defendant, in an omnibus motion, sought to dismiss the information stating that “the time frame is so expansive that this Defendant cannot possibly defend against the charges and prepare a defense.” In the alternative, the motion sought to compel the People to respond to a previously served demand for a bill of particulars which had sought “the precise date(s), time(s) and location(s) of the offense(s) alleged.”

In response to the omnibus motion, the People stated:

“As to the Bill of Particulars CPL 200.95
“a. The defendant forcibly touched the victim in this case ... by pinching with his hand the penis of the victim .... This happening on one occasion between December of 2002 and June 2003 at [defendant’s home]. This answers the defendants [szc] bill of particulars dated June 21, 2004.”

City Court denied the motion to dismiss the information and, after a jury trial, defendant was convicted of forcible touching. Defendant then sought to set aside the verdict pursuant to CPL 330.30 (1), alleging various evidentiary errors as well as a claim of legal insufficiency. The motion was denied and defendant was sentenced to a one-year term of imprisonment. County Court granted defendant a stay of the sentence pending appeal. That court later affirmed the judgment of conviction and sentence. A Judge of this Court granted leave to appeal and further stayed execution of the sentence. Defendant argues that the lower courts erred by not dismissing the accusatory instrument as it did not properly give him notice of the charge so that he could adequately prepare a defense. We agree and now reverse and dismiss the information.

The paramount purpose of an accusatory instrument is to provide sufficient information regarding the nature of the charge and the conduct which underlies the accusation to allow defendant to prepare or conduct a defense (see People v Morris, 61 NY2d at 293). The instrument also serves to protect an accused from double jeopardy by specifically identifying the alleged crime so that he or she cannot be charged with the crime again in a subsequent prosecution (see id.). To satisfy these safeguards, there is no requirement that the accusatory instrument give an “exact date and time” (id. at 294). Rather, “the interval of time set forth in each count must reasonably serve[ ] the function of protecting defendant’s constitutional right to be informed of the nature and cause of the acusation” (People v Keindl, 68 NY2d 410, 417 [1986] [internal quotation marks and citations omitted]).

Although we have held that a nine-month time frame alleging a noncontinuous act in an accusatory instrument is generally per se unreasonable (see People v Beauchamp, 74 NY2d 639, 641 [1989] [holding that a nine-month time frame is an “excessive interval” despite the People’s diligent efforts and the young ages of the victims]; see also Keindl, 68 NY2d at 419 [sexual abuse charges spanning 10 months involving crimes against children ranging from ages 8 to 13 were “so excessive on their face that they are unreasonable”]), we have otherwise been hesitant to adopt a bright-line rule (see e.g. People v Watt, 81 NY2d at 775 [five-month time frame was not “per se unreasonable”]), and we need not adopt one here.

Rather, the “determination of whether sufficient specificity to adequately prepare a defense has been provided to a defendant by the [accusatory instrument] and the bill of particulars must be made on an ad hoc basis by considering all relevant circumstances” (Morris, 61 NY2d at 295). As we stated in Morris-.

“The test for adequacy embraces good faith. Reasonableness and fairness demand that the [accusatory instrument] state the date and time of the offense to the best of the People’s knowledge, after a reasonably thorough investigation has been undertaken to ascertain such information. In evaluating the possibility that a more specific date could have been obtained through diligent efforts, the court might consider, among other things: (1) the age and intelligence of the victim and other witnesses; (2) the surrounding circumstances; and (3) the nature of the offense, including whether it is likely to occur at a specific time or is likely to be discovered immediately” (id. at 296).

Further, as we noted in Watt, when a per se bar does not apply: “The significantly longer period . . . is a factor to be considered, with proportionately heightened scrutiny given to whether the People’s inability to provide more precise times can be justified as against the important notice rights of the defendant” (81 NY2d at 775).

With these considerations in mind, we conclude that the People failed to meet their duty to delineate a sufficiently narrow time frame for the alleged act. Notably, the complainant here was 16 or 17 years old at the time of the forcible touching, and, by all accounts, intelligent. Exact dates for incidents that occurred years before were provided, yet the People failed to specify a more precise time frame for the conduct at issue, or to demonstrate that they were unable to do so. Under these circumstances, seven months cannot be deemed reasonable when weighed against the imperative notice rights of the defendant. The People had ample opportunity to correct this deficiency in their response to the bill of particulars but failed to do so, and thus defendant’s motion to dismiss the information should have been granted.

In light of our disposition, we need not reach defendant’s remaining arguments.

Accordingly, the order of County Court should be reversed and the information dismissed.

Chief Judge Kaye and Judges Graffeo, Read, Smith, Pigott and Jones concur.

Order reversed, etc.