author: Chief Judge Lippman. Read, J. (concurring).

text:
    [926 NE2d 1219, 900 NYS2d 715]
    The People of the State of New York, Respondent, v Robert Mothersell, Appellant.
    Argued February 16, 2010;
    decided April 1, 2010

      POINTS OF COUNSEL

      Law Office of Ameer Benno, New York City (Ameer Benno of counsel), and Hiscock Legal Aid, Syracuse (Mary E Davison of counsel), for appellant.
    The search of Mr. Mothersell’s person by police violated his right to be free from unreasonable search and seizure, as guaranteed under the Fourth and Fourteenth Amendments to the United States Constitution, and article I, § 12 of the New York State Constitution. (Mapp v Ohio, 367 US 643; Coolidge v New Hampshire, 403 US 443; Johnson v United States, 333 US 10; Illinois v Gates, 462 US 213; Walczyk v Rio, 496 F3d 139; United States v Martin, 426 F3d 83; Steele v United States, 267 US 498; United States v Ventresca, 380 US 102; Marron v United States, 275 US 192; Doe v Groody, 361 F3d 232.)

      William J. Fitzpatrick, District Attorney, Syracuse (James R Maxwell and Brenton R Dadey of counsel), for respondent.
    The police did not violate defendant’s constitutional rights when they recovered cocaine from defendant. (People v Prochilo, 41 NY2d 759; People v Tonge, 93 NY2d 838; People v Luperon, 85 NY2d 71; People v Turriago, 90 NY2d 77; People v Dunbar, 5 NY3d 834; People v Chilton, 69 NY2d 928; People v Roque, 99 NY2d 50; People v More, 97 NY2d 209; People v Barnville, 7 Misc 3d 688, 31 AD3d 271, 7 NY3d 809; People v Giles, 73 NY2d 666.)
   OPINION OF THE COURT

Chief Judge Lippman.

The contraband defendant stands convicted of possessing was recovered from his person by means of a strip search conducted on the authority of a warrant purporting to authorize the search of all persons present at the time of its execution. Defendant now contends, as he did before the County Court and the Appellate Division, that there was not a sufficient predicate for issuance of the warrant and that, even if properly issued, it did not authorize the strip search performed on him. We agree with both of these contentions.

In his suppression motion defendant specifically alleged that there was no adequate factual basis for the all-persons-present warrant and that

“[e]ven if the warrant were to be viewed as allowing [him] to be seized and searched during [its] execution . . . , it was a violation of [his] rights under the Fourth Amendment to the US Constitution and Article 1, section 12 of the New York Constitution to be subjected to a body cavity search based solely on the ‘all persons present’ warrant and his mere presence at the target residence.”

The People responded that the search warrant was validly issued and properly executed. They characterized the search of defendant as a “strip search” that did not involve a cavity search. In ruling upon the first branch of the motion, the court relied on the affidavit submitted in support of the warrant application, the sole basis for the warrant’s issue. According to the affidavit, two controlled purchases of cocaine had been made by known and reliable informants at the target premises, the first floor front apartment at 114 Isabella Street, a two-story residential building. The first purchase was reportedly made from a male resident of the apartment, referred to only as “Tom,” on February 2, 2006; the second purchase, from an “unknown male,” took place weeks later, “during the week ending 25 February 2006.” The amount of cocaine purchased on each occasion is not stated. Based on these two transactions, the motion court found that “not only was [probable cause established] to believe that the residence of 114 Isabella Street, First Floor Front Apartment, was being used for the sale and distribution of drugs but also that anyone present therein was involved in the ongoing illegal activity” and, accordingly, that the applicable standard for issuance of an all-persons-present warrant as set forth in People v Nieves (36 NY2d 396 [1975]) had been met. The court directed a hearing upon the disputed factual issue raised in connection with the motion’s second branch, namely, whether there had been a body cavity search, as defendant alleged, or merely a strip search, as the People contended.

At the hearing, one of the officers who executed the warrant testified that he searched defendant solely pursuant to what he understood to be the warrant’s authority; he acknowledged that he had no independent basis for an arrest and, in fact, said that defendant was not under arrest at the time of the search. He also stated that he had taken part in the execution of hundreds of all-persons-present warrants and that persons were routinely strip-searched pursuant to such warrants and required to facilitate the examination of their anal and genital cavities. The officer said that defendant was subjected to such a search, during which he was required to lift his scrotum and then to bend over to expose his anal cavity. The incriminating evidence was discovered in the course of the latter exercise.

The court denied suppression, finding that although the search at issue had been “more intrusive than merely a strip search,” and involved “the conducting of a visual body cavity search,” it was authorized by the all-persons-present warrant and had been reasonably conducted.

Upon the denial of his suppression motion, defendant entered a plea to criminal possession of a controlled substance in the fifth degree. The Appellate Division affirmed the ensuing judgment of conviction, stating “the warrant application established probable cause to believe that the apartment was being used for the sale of controlled substances and that anyone present was involved in the ongoing illegal activity” (59 AD3d 995, 996 [2009] [citations and internal quotation marks omitted]). In support of this conclusion, the Court cited several Appellate Division decisions in which all-persons-present warrants had evidently been upheld on predicates not dissimilar to the one at bar (see People v Neish, 232 AD2d 744, 746 [1996], lv denied 89 NY2d 927 [1996]; People v Williams, 284 AD2d 564, 565 [2001], lv denied 96 NY2d 909 [2001]). The present appeal from the Appellate Division decision and order affirming defendant’s conviction is before us by leave of a Judge of this Court (12 NY3d 857 [2009]).

Preliminarily, while the People argue that the issues defendant would have us review are not preserved, both of the issues defendant has briefed to us were clearly raised and argued on the suppression motion and before the Appellate Division, which, it may be noted, addressed both issues on the merits without invoking its interest of justice jurisdiction. Nor is it the case that we are being asked by defendant to differ with the motion court’s now affirmed factual findings; the plainly reviewable issue posed is rather whether those facts will support the legal conclusion that the search of defendant was constitutional.

The Fourth Amendment to the Federal Constitution as made applicable to the states by the Fourteenth Amendment, and article I, § 12 of our New York State Constitution speak with one voice in requiring that warrants “particularly describ[e]

. . . the persons . . . to be seized.” It is plain that the warrant here at issue does not particularly describe anyone. That, however, is not where the present inquiry ends because CPL 690.15 (2) states that “[a] search warrant which directs a search of a designated or described place, premises or vehicle, may also direct a search of any person present thereat or therein,” and in People v Nieves (36 NY2d 396 [1975]) this provision was upheld as against the claim that it was facially unconstitutional.

At the time of Nieves, the constitutionality of CPL 690.15 (2), enacted only five years before, had been seriously questioned (36 NY2d at 404) and it was evident that the statute as written was potentially overbroad in its application (id.). We nonetheless reasoned that there could be circumstances in which a showing of probable cause to search a place would also afford probable cause to infer that everyone present at the place had upon their persons the items specified in the warrant, and thus, that the statute was capable of application without constitutional offense. We recognized, however, the exacting nature of the showing necessary to justify the inferences essential to the statute’s constitutionally permissible use, and summarized the “carefully circumscribed,” indeed “severely limited,” grounds upon the search of an individual identified in the authorizing warrant only as “a[ ] person present” could be performed:

“The facts made known to the Magistrate and the reasonable inferences to which they give rise, must create a substantial probability (see People v Baker, 30 NY2d 252, 259) that the authorized invasions of privacy will be justified by discovery of the items sought from all persons present when the warrant is executed. If this probability is not present, then each person subject to search must be identified in the warrant and supporting papers by name or sufficient personal description” (id. at 404-405).

This standard was not met in Nieves. The any-person-present warrant there at issue was premised upon facts indicating that the place to be searched, a restaurant, was being used to conduct illegal gambling transactions and to store the records of those transactions. But the locus of the search had not been shown limited to criminal activity and, accordingly, the requisite probability that anyone at the restaurant would be there for an illicit purpose and would have upon his or her person evidence probative of the alleged ongoing illegality was not made out. Indeed, notwithstanding our recognition in Nieves of the possibility of a valid any-person-present warrant, it does not appear that this Court has ever actually sustained such an instrument. While such a case may well come before us, it is not this one.

It is true that the location specified in the present warrant was not open to the public as was the restaurant in Nieves, but, as we noted in Nieves, that the place of a warrant’s execution is not publicly trafficked, while relevant, does not suffice to demonstrate the selectivity necessary to the warrant’s legality (id. at 405 n 4); innocent persons are commonly encountered in private spaces, such as homes, and, in fact, possess in those spaces the most constitutionally compelling expectations of privacy (see e.g. Payton v New York, 445 US 573, 587 [1980], quoting Dorman v United States, 435 F2d 385, 389 [DC Cir 1970] [“Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment”]). The private nature of a place, then, does not of its own argue persuasively in support of a warrant indiscriminately permitting the seizure and search of all persons found there at the time of its execution.

Rather than adopt such a singular and inadequate criterion for judging the validity of an all-persons-present warrant, the Nieves court set forth numerous other factors necessarily to be considered in the discharge of a court’s duty to subject an application seeking such a warrant to “rigid scrutiny” (36 NY2d at 404). Among these were the character of the premises, the nature of the illegal activity believed to be conducted at the location, the number and behavior of the persons present at the time of day or night when the sought warrant was proposed to be executed, and whether persons unconnected with the illicit activity had been observed at the premises. Nieves required the address of each of these issues in the application (id. at 404-405).

The essential object of the searching examination required of the reviewing magistrate under Nieves is to guard against the authorization of a dragnet likely to include the innocent, a danger that would otherwise routinely be courted in issuing all-persons-present warrants. Naturally, the reasonableness of this species of warrant may depend upon whether a more specifically focused search authorization can be framed (see id.), but it does not follow that an application for such a warrant can be justified solely by the inability of the applicant individually to identify the particular person or persons to be searched. The requirement of probable cause both for the proposed search of the premises and for the search of each person present at the time of the warrant’s execution is unwavering: “[T]he facts before the issuing Judge at the time of the warrant application, and reasonable inferences from those facts, must establish probable cause to believe that the premises are confined to ongoing illegal activity and that every person within the orbit of the search possesses the articles sought” (id. at 404; see also Ybarra v Illinois, 444 US 85, 91 [1979] [“Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be” (emphasis added)]).

In defending the adequacy of the present application against this standard, the People remind us of the maxim that warrant applications are not to be hypertechnically read. But that principle of construction was never intended as license to excuse deficiencies in an application’s factual underpinning (see Steele v United States, 267 US 498, 503 [1925]; People v Hendricks, 25 NY2d 129, 137 [1969]). Even generously read, the application at bar must be deemed unequal to its purpose.

Amid the application’s pages of boilerplate allegations are the following few relevant particulars: that the premises at issue were residential in nature; and that on two occasions separated by weeks cocaine in unspecified quantities had been purchased at the premises by trusted confidential informants from one or two men, undescribed except that after the first buy the seller was referred to as “Tom.” But, two isolated purchases of what must be supposed to have been small quantities of narcotics cannot suffice to show that a residential location has been given over entirely to the drug trade, much less that every person at the location is probably a participant in drug trafficking. The warrant application does not state, as it is required to by Nieves, whether any innocent use of the premises had been observed. Nor is there information in the application respecting the number or behavior of the persons ordinarily present at the apartment at the time of the sought warrant’s contemplated execution—here, “any time of the day or night.”

In the end, the only statement in the warrant application even purporting to justify the issuance of an all-persons-present warrant is the one in which the deponent offers on the basis of her past experience that it is “not uncommon that persons found in the subject residence could reasonably be expected to conceal cocaine.” But, as noted, the search of all persons present, particularly where, as here, it is proposed to be accomplished solely on the authority of a warrant to be executed at any time, requires a showing of facts from which it can be inferred that it is substantially probable that any persons present at the warrant’s execution will have the sought evidence of crime upon them; this governing standard is manifestly not met by the above-quoted fairly opaque formulation, which, charitably construed, ventures no more than that some persons present at the subject residence might have cocaine upon their persons.

Our conclusion that this all-persons-present warrant is not valid should not be taken as signifying a departure from Nieves’s initial holding that warrants of this sort are not categorically unconstitutional. Indeed, we think it clear that surveillance of a location may yield a factual basis to infer with the requisite force that the place is devoted to an ongoing illicit purpose, such as the manufacture or marketing of narcotics (a “drug factory”) or their use (a “shooting gallery” or “drug house”), and that all those present at the time of the contemplated search will probably be in possession of contraband or other specified evidence of illegality. Although the predicate for this kind of warrant cannot, consistent with the essential constitutional purpose of protecting persons from unreasonable searches, be less than exacting, the warrant may still have utility. Its utility, however, may not permissibly arise, as it apparently has in practice, from any relaxation of the requirement of probable cause as to each person targeted for search or seizure.

While the warrant’s invalidity is dispositive of defendant’s entitlement to suppression, we briefly address defendant’s second point in view of the hearing testimony indicating that strip searches are commonly performed solely on the authority of all-persons-present warrants.

We have held that a post-arrest strip search must be based upon reasonable suspicion that an arrestee is hiding contraband beneath his or her clothing, and that a search involving visual examination of an arrestee’s anal and genital cavities—a distinctly elevated level of intrusion, which must be separately justified—may not be performed except upon a “specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity” (People v Hall, 10 NY3d 303, 311 [2008], cert denied 555 US —, 129 S Ct 159 [2008]). In this connection, we stressed in language particularly resonant here that

“visual cavity inspections . . . cannot be routinely undertaken as incident to all drug arrests or permitted under a police department’s blanket policy that subjects persons suspected of certain crimes to these procedures. There must be particular, individualized facts known to the police that justify subjecting an arrestee to these procedures (see generally People v McIntosh, 96 NY2d 521, 525 [2001]). Our precedent on this point is unequivocal: the police are required to have ‘specific and articulable facts which, along with any logical deductions, reasonably prompted th[e] intrusion’ (People v Cantor, 36 NY2d 106, 113 [1975]), although they are allowed to ‘draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person’ (United States v Arvizu, 534 US 266, 273 [2002] [internal quotation marks omitted])” (id. at 311 [emphasis added]).

Thus, even where there is probable cause for an arrest, and a suspect has been arrested—something that had not yet occurred at the time of the search of defendant—there must, in addition to the predicate for the arrest, be grounds to justify the very significant intrusion of a strip or visual body cavity search. It is not enough that there is probable cause to suppose that a person possesses contraband or that pursuant to a warrant there may exist grounds for a non-strip search; where a strip search is to be performed, there must also exist “particular, individualized facts known to the police that justify subjecting an arrestee to these procedures” (10 NY3d at 311), i.e., specific facts to support a reasonable suspicion that a particular person has secreted contraband beneath his or her clothes or in a body cavity. Such a predicate did not exist at the time that the present warrant was sought and, accordingly, these extraordinary intrusions could not have been within any authority the warrant was capable of conferring.

A search warrant exists and is required not simply to permit, but to circumscribe police intrusions (see Marron v United States, 275 US 192, 196 [1927] [“nothing is left to the discretion of the officer executing the warrant”]). This warrant, even if valid for other uses, would fail of its essential limiting purpose if it were understood to afford plenary authority for the inspection of the most private recesses of a person’s anatomy.

Accordingly, the order of the Appellate Division should be reversed, the motion to suppress granted, and the indictment dismissed.

Read, J. (concurring).

Whether the warrant application in this case was sufficient to support an all-persons-present search for drugs is a close question. Ultimately, though, I conclude that the information presented in the affidavit supporting the warrant application was simply too skimpy and dependent on boilerplate. All-persons-present warrants for drug searches have been approved where the supporting affidavits supply more detailed information regarding the experience and training of the officer seeking the warrant, including that, in the officer’s experience, persons engaged in the sale of drugs often work in concert with others and that those engaged in such activities frequently maintain residences separate and apart from the location where the drug-related activity is conducted (see People v Williams, 284 AD2d 564, 565 [3d Dept 2001], lv denied 96 NY2d 909 [2001]). Additional details to support an all-persons-present warrant based on drug purchases made by an informant might also include, for example, whether the drugs at the target location were in open view; whether scales and glassine bags were visible; whether those observed at the location appeared to be high, or were using drugs; and, generally, how many people were seen and whether any of them appeared unaware of or uninvolved with the illegal activity taking place.

As the majority points out, police surveillance may also supply a sufficient factual basis from which to infer that a location is a drug factory, shooting gallery or drug house, and that all those present when a search warrant is executed will likely possess contraband or other evidence of illegality (see majority op at 365-366). These havens for drug activity are often found in the most disadvantaged neighborhoods, whose innocent residents suffer from the high crime incident to the illicit drug trade in their midst. The all-persons-present warrant—properly supported—is a tool for combating drug crime for the benefit of these citizens. As for the strip/visual body cavity search, the facts set out in the affidavit and brought out at the suppression hearing did not meet the standard articulated in People v Hall (10 NY3d 303 [2008], cert denied 555 US —, 129 S Ct 159 [2008]), which was decided after the hearing took place in this case.

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur with Chief Judge Lippman; Judge Read concurs in a separate concurring opinion in which Judges Graffeo and Pigott concur.

Order reversed, etc.

       If the search involves the removal of an object secreted within a body cavity, a warrant specifically authorizing the intrusion must first be obtained (People v More, 97 NY2d 209 [2002]).


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [927 NE2d 1050, 901 NYS2d 566]
    The People of the State of New York, Appellant, v Lynette Caban, Respondent.
    Argued February 16, 2010;
    decided April 1, 2010

      POINTS OF COUNSEL

      Cyrus R. Vance, Jr., District Attorney, New York City (Marc Krupnick and Mark Dwyer of counsel), for appellant.
    I. The Appellate Division’s order is appealable and should be reversed. Limited testimony that defendant operated her vehicle with a suspended driver’s license when she struck and killed an 81-year-old pedestrian was properly admitted at her criminally negligent homicide trial. (People v Molineux, 168 NY 264; People v Albro, 52 NY2d 619; People v Giles, 73 NY2d 666; People v Alvino, 71 NY2d 233; People v Resek, 3 NY3d 385; People v Laws, 86 NY2d 769; People v Fehr, 75 NY2d 836; People v Cona, 49 NY2d 26; People v Rojas, 97 NY2d 32; People v Hudy, 73 NY2d 40.) II. As defendant has failed to establish that the trial judge did not provide her with notice of the contents of four jury notes as well as an opportunity to suggest responses to those notes, defendant’s claim that the judge failed to satisfy his core responsibilities is meritless and also partially unpreserved. (People v O’Rama, 78 NY2d 270; People v Kisoon, 8 NY3d 129; People v Martin, 8 NY3d 129; People v Lykes, 81 NY2d 767; People v DeRosario, 81 NY2d 801; People v Starling, 85 NY2d 509; People v Kinchen, 60 NY2d 772; People v Cook, 85 NY2d 928; People v Andrew, 1 NY3d 546; People v Velasquez, 1 NY3d 44.)

      Legal Aid Society, Criminal Appeals Bureau, New York City (Frances A. Gallagher and Steven Banks of counsel), for respondent.
    I. This appeal must be dismissed because the intermediate appellate court’s determination of reversal was based not on the law, but rather on its interest of justice review of an unpreserved issue, and, as such, it is outside the scope of this Court’s review. (People v Cona, 49 NY2d 26; People v Laws, 86 NY2d 769; People v Baumann & Sons Buses, Inc., 6 NY3d 404; People v Dercole, 52 NY2d 956; People v Chessman, 54 NY2d 1016; People v Molineux, 168 NY 264; People v Fehr, 75 NY2d 836; People v Darrisaw, 49 NY2d 786; People v Maschi, 65 AD2d 405, 49 NY2d 784; People v Fava, 86 AD2d 975, 58 NY2d 807.) II. The Appellate Division correctly determined that Ms. Caban was deprived of a fair trial by the admission of testimony that her license was suspended because that evidence was neither probative of her state of mind nor necessary to explain the incident. (People v Cabrera, 10 NY3d 370; People v Boutin, 75 NY2d 692; Dalal v City of New York, 262 AD2d 596; St. Andrew v O’Brien, 45 AD3d 1024; White v Molinari, 160 AD2d 302; Hanley v Albano, 20 AD2d 644; Almonte v Marsha Operating

      Corp., 265 AD2d 357; Phass v MacClenathen, 274 App Div 535; People v Young, 13 AD3d 716; People v Reyes, 75 NY2d 590.) III. The record failed to establish that the court provided counsel with notice of the contents of the substantive jury notes by reading the notes into the record outside of the presence of the jury before the court replied to the jury; counsel was thereby deprived of the opportunity to suggest appropriate responses, thereby depriving respondent of her right to the assistance of counsel and her due process right to a fair trial. (People v Kisoon, 8 NY3d 129; People v O’Rama, 78 NY2d 270; People v Martin, 8 NY3d 129; People v Starling, 85 NY2d 509; People v DeRosario, 81 NY2d 801; People v Tabb, 13 NY3d 852.)
   OPINION OF THE COURT

Smith, J.

Defendant, while backing her car, hit and killed a pedestrian. At the time of that event, defendant’s license to drive had been suspended, because of an earlier incident with some noticeable similarities to the later, fatal one. Defendant was convicted of criminally negligent homicide, after a trial in which the trial court admitted into evidence the fact of her license suspension. We hold that this evidence was properly admitted.

I

On January 2, 2003, defendant, driving on Third Avenue in Manhattan, stopped her car and backed it up to let her passengers out at a pizza shop. She backed too quickly, and failed to see an elderly woman, Francesca Maytin, who was crossing the avenue at or near a crosswalk. The car hit Maytin, who died later that day.

This was not the first time defendant had backed a car carelessly. Three months earlier, on October 3, 2002, her car was illegally parked at a bus stop, and a police officer began to write a ticket. Arriving at her car, defendant sought to escape the parking ticket by jumping into the car and backing away quickly— going, according to the People’s description, into a busy intersection in the vicinity of a school at 8:30 in the morning. Her escape was thwarted when a bus blocked her path, and she received four summonses, including one for unsafe backing and one for failing to yield to pedestrians in a crosswalk. Her license to drive was suspended as a result.

Before defendant’s trial, the People sought permission to put into evidence the details of the October 3 incident. Supreme Court rejected that request, but the People were allowed to, and did, show that defendant’s license had been suspended and that it remained so on the day of the fatal event. Defendant, convicted of criminally negligent homicide, appealed to the Appellate Division, which reversed, holding that evidence of the license suspension should not have been admitted (People v Caban, 51 AD 3d 455 [1st Dept 2008]). A Judge of this Court granted the People leave to appeal (11 NY3d 896 [2009]), and we now reverse the Appellate Division’s order.

II

We must first decide whether the alleged error in admitting the license suspension was preserved for appellate review. Taking the opposite position from the one she took in the Appellate Division, defendant now argues that it was not. The reason for the change is that, under our precedents, an Appellate Division reversal that is based on an unpreserved error is considered an exercise of the Appellate Division’s interest of justice power, not reviewable in our Court (People v Baumann & Sons Buses, Inc., 6 NY3d 404, 406-407 [2006]; People v Fava, 58 NY2d 807 [1983]). Thus, if defendant failed to preserve the alleged error, she would benefit from her mistake, for we would be required to dismiss the People’s appeal.

We conclude that the alleged error was preserved, though the relevant record is a bit complicated. The People moved before trial for the admission of evidence about the October 3, 2002 incident, and the trial court denied the motion insofar as it related to the People’s case-in-chief. The parties interpreted this ruling differently: The prosecutor thought she was not barred from introducing, on her case-in-chief, proof that defendant’s license was suspended, while defense counsel thought that the court’s ruling excluded that evidence also. The conversation in which the parties disagreed was off the record, but was recited to the court on the record by the prosecutor, who asked the court for clarification; the court resolved the ambiguity in the People’s favor. It is true that the defense lawyers never said on the record “we object to this evidence,” but they did not have to', because their objection was clear from the prosecutor’s summary of their position.

Because the trial judge was made aware, before he ruled on the issue, that the defense wanted him to rule otherwise, preservation was adequate. The Appellate Division’s reversal was therefore based on a question of law that we may review.

Ill

Defendant’s argument, which the Appellate Division accepted, is that her license suspension was irrelevant to her guilt or innocence. In defendant’s view, the license suspension sheds no light on whether she was criminally negligent in causing Maytin’s death, but only served to prejudice the jury against her as someone who violated the law by driving illegally. We reject this argument, and conclude that the license suspension was relevant to the issue of criminal negligence.

Criminal negligence is defined by Penal Law § 15.05 (4):

“A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

Thus the jury in this case had to consider not only whether defendant failed to perceive “a substantial and unjustifiable risk” that her careless driving would kill someone, but also whether that failure was “a gross deviation from the standard of care that a reasonable person would observe in the situation.” In other words, the jury not only had to decide whether defendant was at fault, but also had to consider how much she was at fault. The license suspension was relevant to this question, because a jury could find that it proved defendant to be more negligent than the other evidence showed her to be.

A jury could find that it is unreasonable to back up quickly into a crosswalk, without checking carefully to be sure that no one is in the way; but that it is even more unreasonable to do so when the State has forbidden the driver from driving at all. A jury could find that the license suspension should, if it did not keep defendant off the road, at least have prompted her to pay more attention to safety while she was driving, and that in failing to do so she deviated grossly from what a reasonable person would have done.

While a license suspension is, as a general proposition, relevant to the issue of criminal negligence, that does not mean evidence of a suspension is admissible whenever criminal negligence is in issue. Evidence, though relevant, may be excluded where “its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury” (People v Scarola, 71 NY2d 769, 777 [1988]). That danger is not present here. Defendant would have a better argument for exclusion if her license had been suspended, for example, for failure to pay parking tickets. But it was not. It was suspended for conduct frighteningly similar to the conduct that caused Francesca Maytin’s death—backing unsafely into a crosswalk. If the jury inferred from the license suspension that defendant should have known that it was unsafe for her to drive, the jury was not misled.

The admission of the license suspension, to the extent it informed the jury about defendant’s earlier misbehavior, did not violate the familiar rule that a defendant’s uncharged crimes or bad acts are generally inadmissible when they serve only to show the defendant’s criminal propensity (People v Molineux, 168 NY 264 [1901]). When the issue is criminal negligence, a prior similar act for which defendant has been punished shows more than propensity; a defendant who is repeatedly negligent in the same way may be found to be unable or unwilling to learn from her mistakes—and thus to be guilty not just of deviation, but of “gross deviation,” from reasonable care. The prior conduct is thus directly relevant to the extent of defendant’s negligence in the case on trial—to her mens rea.

The trial court did not err by allowing the fact of defendant’s license suspension into evidence.

IV

As an alternative ground for affirming the Appellate Division’s order, defendant argues that the trial court violated the rule of People v O’Rama (78 NY2d 270 [1991]) and other cases (see People v Kisoon, 8 NY3d 129 [2007]; People v Tabb, 13 NY3d 852 [2009]) by failing to give defense counsel meaningful notice of notes sent by the jury during its deliberations. This argument was not presented to the trial court or to the Appellate Division, but defendant argues that the O’Rama violation was a “mode of proceedings” error, as to which no preservation is required. Since the Appellate Division had no opportunity to consider this argument, we remit to that court so that it may do so, and may consider any other issues that are now proper for its review.

Accordingly, the order appealed from should be reversed and the case remitted to the Appellate Division for consideration of issues now appropriate for that court’s review, including issues raised but not determined on the appeal to that court.

Chief Judge Lippman and Judges Ciparick, Grapfeo, Read, Pigott and Jones concur.

Order reversed, etc.


author: Jones, J.

text:
    [928 NE2d 393, 902 NYS2d 11]
    In the Matter of Charla Bikman, as Administrator of the Estate of Minda Bikman, Deceased, Respondent, v New York City Loft Board, Appellant.
    Argued February 16, 2010;
    decided April 1, 2010

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Marta Ross, Edward F.X. Hart and Diana Murray of counsel), for appellant.
    The right to sell improvements under section 286 (6) of article 7-C of the Multiple Dwelling Law does not extend to the estate of a deceased tenant. (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Purdy v Kreisberg, 47 NY2d 354; Sewell v City of New York, 182 AD2d 469, 80 NY2d 756; Matter of Amann v New York City Loft Bd., 262 AD2d 234; Matter of 902 Assoc. v New York City Loft Bd., 229 AD2d 351; Matter of Lower Manhattan Loft Tenants v New York City Loft Bd., 104 AD2d 223, 66 NY2d 298; Matter of Moskowitz v Jorden, 27 AD3d 305, 7 NY3d 783; 577 Broadway Real Estate Partners v Giacinto, 182 AD2d 374; De Kovessey v Coronet Props. Co., 69 NY2d 448.)

      Charla Bikman, respondent pro se.
    I. The standard of review for error of law is whether there is an error of law. (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Moskowitz v Jorden, 27 AD3d 305; Matter of Jorden, 8 Misc 3d 789.) II. Matter of Moskowitz v Jorden (27 AD3d 305 [2006]) correctly ruled that the estate is entitled to compensation for the deceased tenant’s fixtures and improvements under Multiple Dwelling Law § 286 (6). (Matter of Jorden, 8 Misc 3d 789; 577 Broadway Real Estate Partners v Giacinto, 182 AD2d 374; De Kovessey v

      Coronet Props. Co., 69 NY2d 448; Canelli Wine Co. v Tassi, 88 Misc 573; Axelrod v French, 148 Misc 2d 42.) III. The Loft Law prohibits deregulation absent a sale of rights or improvements under Multiple Dwelling Law § 286. (Spring Realty Co. v New York City Loft Bd., 69 NY2d 657; Thorgeirsdottir v New York City Loft Bd., 161 AD2d 337.) IV The estate of Minda Bikman was not a party to housing court litigation.
   OPINION OF THE COURT

Jones, J.

The question before this Court is whether the estate of a deceased loft tenant is entitled to recoup the value of improvements made by the tenant pursuant to Multiple Dwelling Law § 286 (6). We answer in the affirmative.

Decedent Minda Bikman became a resident of the subject Manhattan loft in 1974 and was the protected tenant under article 7-C of the Multiple Dwelling Law. Minda died in 1997 and petitioner Charla Bikman, Minda’s sister, represents the estate. During her tenancy, Minda improved the raw loft space by installing a kitchen and bathroom and making other alterations that, according to petitioner, are valued at more than $40,000. In 1981, the building was purchased by 595 Broadway Associates (Broadway). In 1999, after learning of Minda’s death, Broadway sought a Civil Court judgment of possession and use and occupancy which it obtained in 2001. Subsequently, in 2001, Broadway applied to the Loft Board for an abandonment order pursuant to 29 RCNY 2-10 (f). The matter was transferred to the Office of Administrative Trials and Hearings and assigned to an Administrative Law Judge (ALJ) for adjudication. At the ensuing hearing, petitioner opposed Broadway’s abandonment application, claiming that Broadway was not entitled to an abandonment order until such time as it reimbursed the estate for the value of the fixtures and improvements pursuant to Multiple Dwelling Law § 286 (6).

The ALJ recommended that Broadway’s application be granted and that petitioner’s claim be denied because Multiple Dwelling Law § 286 (6) and 29 RCNY 2-09 (b) (1) expressly limit the right of sale to the occupant qualified for protection under the Loft Law. Therefore, the ALJ decided that the estate was not entitled to the value of improvements, as only the residential occupant is protected under the law. The Loft Board affirmed the findings of the ALJ that the unit had been abandoned and denied petitioner’s request for reimbursement of the value of the improvements. Petitioner’s application for reconsideration was denied and she commenced this CPLR article 78 proceeding.

Supreme Court annulled the Loft Board’s determination (2007 NY Slip Op 30541[U]), holding that the proceeding was governed by Matter of Moskowitz v Jorden (27 AD3d 305 [1st Dept 2006], lv dismissed 7 NY3d 783 [2006]), which holds that the estate of a tenant who resided in a unit governed by the Loft Law was entitled to compensation for improvements pursuant to Multiple Dwelling Law § 286 (6). The Appellate Division affirmed Supreme Court’s order annulling the determination of the Loft Board and concluded that it was error to grant Broadway’s abandonment application without requiring a sale of the improvements and compensation to the estate (57 AD3d 448 [2008]).

Under Multiple Dwelling Law § 286 (6), a residential tenant may, subject to procedures established by the Loft Board, sell any improvement to a unit in a dwelling covered under this statute—made or purchased by him—to the owner of the premises or an incoming tenant. In Moskowitz, the First Department rejected the statutory interpretation of Multiple Dwelling Law § 286 (6) by the ALJ which denied reimbursement to the estate. The court determined that prior Loft Board decisions on this issue were not entitled to deference because the issue was solely one of statutory interpretation, and “not specialized knowledge and understanding of operational practices or an evaluation of factual data and inferences to be drawn therefrom” (Moskowitz, 27 AD3d at 306, citing Matter ofKSLMColumbus Apts., Inc. v New York State Div. of Hous. & Community Renewal, 5 NY3d 303, 312 [2005]).

We agree that the Loft Board’s interpretation of Multiple Dwelling Law § 286 (6) is not entitled to deference as the issue is solely a matter of statutory interpretation. In construing this statute, we look to its legislative intent and conclude that section 286 (6) was enacted to prevent an owner from receiving unearned enrichment, thereby depriving compensation to the tenants who paid for the improvements (see 577 Broadway Real Estate Partners v Giacinto, 182 AD2d 374 [1st Dept 1992]). As such, it would be unfair to deprive the estate of the value of property which would have enured to the benefit of the tenant, had the tenant lived.

Based on the foregoing, we hold that Multiple Dwelling Law § 286 (6) permits the estate of a deceased tenant to recoup the value of fixtures and improvements made to the property.

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

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

Order affirmed, with costs.

      . This article was enacted in response to a serious public emergency created by the increasing number of conversions of commercial and manufacturing loft buildings to residential use without compliance with applicable building codes and minimum health, safety and fire protection standards (see Multiple Dwelling Law § 280). This legislation, among other things, is meant to effectuate legalization of the loft buildings and at the same time protect loft residents from being forced to relocate (id.).

      . The Loft Board is an administrative body, consisting of representatives of the public, the real estate industry, loft residential tenants and loft manufacturing interests, all of whom are appointed by the mayor of a municipality. The duties of the Loft Board are set forth in Multiple Dwelling Law § 282 and include the determination of controversies arising over the fair market value of a residential tenant’s fixtures.


author: Read, J. Ciparick, J. (dissenting).

text:
    [926 NE2d 1212, 900 NYS2d 708]
    The People of the State of New York, Respondent, v Jose Tolentino, Also Known as Jose R. Tolentino, Appellant.
    Argued February 10, 2010;
    decided March 30, 2010

      POINTS OF COUNSEL

      Legal Aid Society, New York City (Kristina Schwarz and Steven Banks of counsel), for appellant.
    Department of Motor Vehicles records obtained as the direct, immediate result of an unlawful traffic stop constitute “fruit of the poisonous tree” and are subject to suppression under the exclusionary rule. (Wong Sun v United States, 371 US 471; Silverthorne Lumber Co. v United States, 251 US 385; Sibron v New York, 392 US 40; Davis v Mississippi, 394 US 721; United States v Giordano, 416 US 505; Dunaway v New York, 442 US 200; People v Gathers, 86 NY2d 159; People v May, 81 NY2d 725; People v Rossi, 80 NY2d 952; Nardone v United States, 308 US 338.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Allen J. Vickey and Alan Gadlin of counsel), for respondent.
    The lower courts correctly held that defendant’s Department of Motor Vehicles records were not subject to suppression. (People v Smith, 170 Misc 2d 486; Wong Sun v United States, 371 US 471; People v Jones, 2 NY3d 235; People v Rogers, 52 NY2d 527; Hudson v Michigan, 547 US 586; People v Arnau, 58 NY2d 27; INS v Lopez-Mendoza, 468 US 1032; Navarro-Chalan v Ashcroft, 359 F3d 19; United States v Bowley, 435 F3d 426.)
   OPINION OF THE COURT

Read, J.

At about 7:40 p.m. on New Year’s Day in 2005, defendant Jose Tolentino was driving a car in the vicinity of West 181st Street and Broadway in New York City. The police stopped him for playing music too loudly, learned his name, and ran a computer check of Department of Motor Vehicles (DMV) files to look up his driving record. When this check revealed that defendant’s license was suspended with at least 10 suspensions imposed on at least 10 different dates, he was arrested and charged with one count of aggravated unlicensed operation of a motor vehicle in the first degree.

As part of an omnibus motion, defendant sought to suppress his driving record and any statements made after arrest; alternatively, he asked Supreme Court to hold a MappIDunaway and/or a Huntley/Dunaway hearing. Defendant alleged that the police unlawfully stopped his car and illegally obtained his driving record from DMV Specifically, he contended that his driving record was a suppressible fruit of a Fourth Amendment violation because “[t]he steps required to obtain a DMV records check are the stop of the vehicle and the elicitation of the driver’s name or the driver’s license number.” As a result, defendant argued, “[b]ut for defendant’s unlawful seizure by the police, his DMV records would not have been obtained in this case, and they are therefore the fruit of the police illegality.” The People opposed the motion, first on the ground that the stop was legal; second, they took the position that, even if the stop were, in fact, illegal, a defendant’s identity is never a suppressible fruit, and, in any event, a public agency possessed the records.

On July 12, 2005, Supreme Court granted defendant’s motion for a Huntley/Dunaway hearing, but denied his request for a Mapp hearing. The judge held that “[a]n individual does not possess a legitimate expectation of privacy in files maintained by the [DMV] and such records do not constitute evidence which is subject to suppression under a fruit of the poisonous tree analysis.” On August 3, 2005, defendant pleaded guilty to the crime charged in exchange for five years’ probation; on September 28, 2005, Supreme Court sentenced him as promised.

Defendant appealed, claiming that because his driving record was suppressible, he was entitled to a remand for a hearing. The Appellate Division disagreed and unanimously affirmed (59 AD3d 298 [1st Dept 2009]). The court relied on the United States Supreme Court’s decision in INS v Lopez-Mendoza (468 US 1032, 1039 [1984]) for the proposition that the identity of a defendant is never suppressible as the fruit of an unlawful arrest. And because defendant’s identity led to the discovery of his DMV records, those records were likewise not suppressible. Finally, the Appellate Division noted that the records had been compiled independently of defendant’s arrest. A Judge of this Court granted defendant permission to appeal (12 NY3d 860 [2009]), and we now affirm.

In INS v Lopez-Mendoza (468 US at 1039) the Supreme Court held that the “ ‘body’ or identity of a defendant . . . in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred.” A contrary holding would “permit[ ] a defendant to hide who he is [and] would undermine the administration of the criminal justice system” (United States v Farias-Gonzalez, 556 F3d 1181, 1187 [11th Cir 2009]). Accordingly, defendant does not argue that his name or identity would be subject to suppression as a fruit of the allegedly unlawful stop. Rather, he claims that the preexisting DMV records are subject to suppression because without the alleged illegality, the police would not have learned his name and would not have been able to access these records.

Federal circuit courts addressing this issue in the context of those suspected of illegally residing in the country have held that, when the police stop or seize a defendant, learn his or her name, and use that name to check preexisting government immigration files, the records are not subject to suppression (United States v Farias-Gonzalez, 556 F3d at 1189; United States v Bowley, 435 F3d 426, 430-431 [3d Cir 2006]; United States v Roque-Villanueva, 175 F3d 345, 346 [5th Cir 1999]). For example, in Hoonsilapa v Immigration & Naturalization Serv. (575 F2d 735, 737 [9th Cir 1978]), the government sought to deport an alien after learning from his INS administrative file that he was in the country illegally. The alien moved to suppress the file, arguing that it was the “fruit” of an illegal search and arrest (id.). The Ninth Circuit rejected the argument, noting that the alien’s INS file was already in the possession of the government at the time of the purportedly illegal arrest and search, and that the government’s “decision to search the INS files was only the ‘product’ of the discovery of [the alien’s] identity during the illegal arrest and search” (id. at 738). The court emphasized that “the mere fact that Fourth Amendment illegality directs attention to a particular suspect does not require exclusion of evidence subsequently unearthed from independent sources” (id.).

The facts here are analogous. The officers learned defendant’s identity when they stopped his car; that knowledge permitted the police to run a computer check that led to the retrieval of defendant’s DMV records. Under the rationale of Lopez-Mendoza and the above federal circuit court decisions, defendant’s DMV records were therefore not suppressible as the fruit of the purportedly illegal stop. In short, “there is no sanction . . . when an illegal arrest only leads to discovery of the man’s identity and that merely leads to the official file or other independent evidence” (United States v Guzman-Bruno, 27 F3d 420, 422 [9th Cir 1994] [citation and internal quotation marks omitted]).

While not forming an independent basis for this outcome, the result is further supported by the nature of the records at issue, which were public records already in the possession of authorities (United States v Crews, 445 US 463, 475-477 and 475 n 22 [1980 plurality op] [“(t)he exclusionary rule enjoins the Government from benefiting from evidence it has unlawfully obtained; it does not reach backward to taint information that was in official hands prior to any illegality”]; see also Matter of Jason W., 272 AD2d 214 [1st Dept 2000]; People v Bargas, 101 AD2d 751, 752 [1st Dept 1984]).

In People v Pleasant (54 NY2d 972 [1981]), we applied similar principles to deny exclusion of independently-compiled information in the possession of a public agency. There, the defendant was illegally arrested in Suffolk County for weapon possession, at which time the police discovered that one of the guns recovered during the unlawful arrest had been used in a robbery in Bronx County. Suffolk County authorities conveyed this information, along with the defendant’s name and date of birth, to the Bronx police. The Bronx police then retrieved the defendant’s photograph from the Bureau of Criminal Identification and showed it to the robbery victims, who positively identified the defendant from a photographic array. After the defendant was arrested on a warrant, one of the robbery victims identified him in a lineup.

We rejected the defendant’s claim that the photographic identifications should be suppressed as the fruit of the illegal arrest, holding that “only defendant’s identity was obtained as a result of the unlawful seizure” and the photographic identifications “were not an exploitation of the antecedent illegality, as defendant’s photograph was obtained from a source independent of the unlawful arrest, and such identifications proceeded from the witnesses’ independent recollections” (Pleasant at 974 and n [citation omitted]). Similarly, the DMV records here were obtained by the police from a source independent of the claimed illegal stop.

As the Farias-Gonzalez court pointed out, the policy rationale of the exclusionary rule would not be served by its application to identity-related evidence. The social costs of excluding such evidence are great: courts and the government are entitled to know who defendants are, since permitting defendants to hide their identity would undermine the administration of the criminal justice system and essentially allow suppression of the court’s jurisdiction. On the other side of the equation, there are few deterrence benefits. The Constitution does not prohibit the government from requiring a person to identify himself to a police officer. In addition,

“even if a defendant in a criminal prosecution successfully suppresses all evidence of his identity and the charges are dropped, the Government can collect new, admissible evidence of identity and reindict him. This is so because identity-related evidence is not unique evidence that, once suppressed, cannot be obtained by other means” (Farias-Gonzalez, 556 F3d at 1188-1189 [citation omitted]).

As a result, “[t]he application of the exclusionary rule to identity-related evidence will have a minimal deterrence benefit, as its true effect will often be merely to postpone a criminal prosecution” (id. at 1189).

Nor do we believe that “[t]oday’s opinion [will] give[ ] law enforcement an incentive to illegally stop, detain, and search anyone for the sole purpose of discovering the person’s identity and determining if it matches any government records accessible by the police” (dissenting op at 390). Police are already deterred from conducting illegal car stops because evidence recovered in the course of an illegal stop remains subject to the exclusionary rule.

While the Supreme Court has held that fingerprint evidence— evidence the dissent describes as “paradigmatic identity evidence” (dissenting op at 389)—may be subject to the exclusionary rule (Davis v Mississippi, 394 US 721, 724 [1969]), Davis, as well as Hayes v Florida (470 US 811, 815 [1985]), is distinguishable from this case in two ways. First, the defendants in those cases were illegally stopped for the purpose of obtaining evidence—fingerprints—that would connect the defendants to crimes under investigation. The “identity evidence” was not preexisting. Second, the fingerprints were used, not to establish the identities of the individuals apprehended by the police and subject to the jurisdiction of the court, but to connect those individuals’ fingerprints to latent prints recovered from the crime scene. The evidence established defendants’ “identities” as the perpetrators, but not their “identities” in the sense relevant here. Our decision today would not alter the outcome of those cases. We merely hold that a defendant may not invoke the fruit-of-the-poisonous-tree doctrine when the only link between improper police activity and the disputed evidence is that the police learned the defendant’s name.

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

Ciparick, J. (dissenting).

Because I believe that Department of Motor Vehicles (DMV) records are subject to suppression if obtained by the police through the exploitation of a Fourth Amendment violation, namely an unlawful traffic stop, I respectfully dissent.

The majority has set forth a new rule, that regardless of police conduct, DMV records obtained through a police stop and inquiry of the driver are not subject to the exclusionary rule when the only link between the police conduct and the evidence is that the police learned a defendant’s name (see majority op at 388). Further, the majority believes that DMV records are not subject to suppression since they are government records compiled independently of defendant’s arrest. We disagree on both counts.

It has long been established that evidence derived from a Fourth Amendment violation must be suppressed as “fruit of the poisonous tree” if law enforcement “ ‘exploited or benefited from its illegal conduct’ such that ‘there is a connection between the violation of a constitutional right and the derivative evidence’ ” (People v Jones, 2 NY3d 235, 242 [2004] [citations omitted]). We have never before excluded any category of evidence from this rule. Fruit of the poisonous tree may be anything “of evidentiary value” (Davis v Mississippi, 394 US 721, 724 [1969], quoting Bynum v United States, 262 F2d 465, 467 [DC Cir 1958]), including fingerprints (id.), photographs (United States v Crews, 445 US 463, 472 [1980]), and identifications (People v Gethers, 86 NY2d 159, 162 [1995]).

The majority relies heavily on a misreading of INS v LopezMendoza (468 US 1032 [1984]). In that case, the United States Supreme Court reviewed two civil deportation proceedings that resulted from illegal police conduct. In the first case, Adan Lopez-Mendoza raised a jurisdictional issue, that he had been summoned to the deportation proceeding as a result of an unlawful arrest. He did not challenge the admissibility of the evidence proffered against him. In the companion case, Elias Sandoval-Sanchez challenged the introduction of illegally obtained evidence in his deportation proceeding. With respect to Lopez-Mendoza’s claim, the Court wrote that “[t]he ‘body’ or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest” (id. at 1039). The Fourth, Eighth, and Tenth Circuits read this language as referring only to the court’s personal jurisdiction over Lopez-Mendoza, not admissibility of identity evidence (see United States v Oscar-Torres, 507 F3d 224, 227-230 [4th Cir 2007]; United States v Olivares-Rangel, 458 F3d 1104, 1111-1112 [10th Cir 2006]; United States v Guevara-Martinez, 262 F3d 751, 753-755 [8th Cir 2001]). I agree with these courts.

There are several reasons why this reading of Lopez-Mendoza is more persuasive than the reading given by the majority. Most importantly, the authority cited for the proposition that a defendant’s identity cannot be suppressed refers to an older rule, undisputed here, that the identity of a defendant is never suppressible so as to defeat a court’s jurisdiction over that defendant (Lopez-Mendoza, 468 US at 1039-1040, citing Gerstein v Pugh, 420 US 103, 119 [1975] and Frishie v Collins, 342 US 519, 522 [1952]). As such, the Lopez-Mendoza language at issue is found in the section of the opinion addressing Lopez-Mendoza’s jurisdictional claim. The Court later addressed Sandoval-Sanchez’s claim that the specific identity evidence against him should be suppressed. Rather than applying any “identity rule,” as it had when addressing Lopez-Mendoza’s jurisdictional claim, the Court held that the exclusionary rule did not extend to deportation proceedings—purely civil proceedings determining a person’s eligibility to stay in this country.

I agree with the majority that a defendant’s identity cannot be suppressed to defeat the personal jurisdiction of a court. However, identity-related evidence can and should be subject to the exclusionary rule. Indeed, the United States Supreme Court has twice found that fingerprints—paradigmatic identity evidence—are suppressible under the exclusionary rule (Davis, 394 US at 724; Hayes v Florida, 470 US 811, 815 [1985]). In Davis, the Court held that because “[f]ingerprint evidence is no exception” to the exclusionary rule, defendant’s illegally obtained fingerprints that matched the perpetrator’s fingerprints on file should have been suppressed (394 US at 724). The Court reaffirmed Davis in Hayes and found that a defendant’s fingerprints taken for an investigative purpose in the course of an unlawful detention were inadmissible fruit of that detention (470 US at 816).

Certainly the deterrent purpose of the exclusionary rule should be applicable to identity-related evidence. The majority’s “broad[ ] reading of Lopez-Mendoza [gives] the police carte blanche powers to engage in any manner of unconstitutional conduct so long as their purpose [is] limited to establishing a defendant’s identity” (Olivares-Rangel, 458 F3d at 1111). Today’s opinion gives law enforcement an incentive to illegally stop, detain, and search anyone for the sole purpose of discovering the person’s identity and determining if it matches any government records accessible by the police. Permitting law enforcement to exploit a Fourth Amendment violation that produces identity or identity-related evidence misses the point; what matters is the legality of the police conduct, not the type of evidence obtained.

Of course, this does not mean that identity-related evidence will necessarily be excluded, even if it is the product of an unlawful stop, but merely that it is subject to the same rules as other evidence. It may indeed be admissible, along with other evidence secured as a result of acquiring defendant’s pedigree information, if there is an independent source, discovery was inevitable, or the evidence is attenuated from the illegality (Gethers, 86 NY2d at 162). If none of these exceptions apply, the records obtained as a result of identity information acquired during an illegal stop are suppressible. Here, however, because Supreme Court made no determination regarding the legality of the stop, we are in no position to determine whether the proffered evidence should be suppressed.

The majority’s second argument—that the DMV records are not subject to the exclusionary rule because they were compiled by a state agency independent of any illegality—ignores that the police located these specific records only by relying on identifying information that may have been the product of an illegal stop. Contrary to the majority’s opinion, our holding in People v Pleasant (54 NY2d 972, 974 [1981]) does not suggest that evidence in possession of a government agency is immune from the exclusionary rule’s constraints. In fact, Pleasant was entirely premised on the identification at issue being “ ‘sufficiently distinguishable to be purged of the primary taint’ ” (id., quoting Wong Sun v United States, 371 US 471, 488 [1963] [some internal quotation marks omitted]). In other words, far from holding that identity-related evidence was not subject to suppression, Pleasant actually applied the Wong Sun analysis and found the evidence at issue to be sufficiently attenuated so as to be admissible. A similar analysis should have been conducted here.

Nor should it matter that the records were public. Defendant here need not establish a legitimate expectation of privacy in the evidence he seeks to suppress, but only that police discovery of the evidence was the product of a Fourth Amendment violation (see Kamins, New York Search and Seizure § 1.01 [5] [a], at 1-22 [2009] [compiling lower court decisions that defendant need not have a “reasonable expectation of privacy in the fruit itself’]). Supreme Court below therefore should have considered “whether exploitation of an illegal search and seizure produced the critical link between a defendant’s identity and his [government agency] record[s]” (Olivares-Rangel, 458 F3d at 1120).

In short, if these DMV records were discovered as a result of an allegedly unlawful stop, they should be subject to suppression as fruit of that illegality. I would reverse the order of the Appellate Division and remit to Supreme Court for a Mapp/Dunaway hearing.

Judges Graffeo, Smith, Pigott and Jones concur with Judge Read; Judge Ciparick dissents and votes to reverse in a separate opinion in which Chief Judge Lippman concurs.

Order affirmed.


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

text:
    [927 NE2d 547, 901 NYS2d 127]
    Luke Anthony Trupia, an Infant, by His Parent and Guardian, Lawrence C. Trupia, et al., Respondents, v Lake George Central School District et al., Appellants.
    Argued February 18, 2010;
    decided April 6, 2010

      POINTS OF COUNSEL

      Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Benjamin R. Pratt, Jr., and Karla Williams Buettner of counsel), for appellants.
    The Third Department improperly declined to extend primary assumption of risk to situations involving horseplay. (Turcotte v Fell, 68 NY2d 432; Trevett v City of Little Falls, 6 NY3d 884; Morgan v State of New York, 90 NY2d 471; Benitez v New York City Bd. of Educ., 73 NY2d 650; Lamey v Foley, 188 AD2d 157; Lomedico v Cassillo, 56 AD3d 1271; Sy v Kopet, 18 AD3d 463; Conway v O’Keefe, 22 AD3d 784; Marucheau v Suffolk County Community Coll., 23 AD3d 445; Belloro v Chicoma, 8 AD3d 598.)

      Ledwith & Atkinson, Lynbrook (Peter K. Ledwith of counsel), for respondents.
    I. The principle of primary assumption of risk is a court-created exception to the comparative negligence principles found in CPLR 1411 and should be restricted to sports and recreational activities. (Arbegast v Board of Educ. of S. New Berlin Cent. School, 65 NY2d 161; Turcotte v Fell, 68 NY2d 432; Maddox v City of New York, 66 NY2d 270; Benitez v New York City Bd. of Educ., 73 NY2d 650.) II. An 11-year-old boy sliding on a banister at school has not expressly waived the duty of the school to provide adequate supervision. (Havens v Kling, 277 AD2d 1017; Hochreiter v Diocese of Buffalo, 309 AD2d 1216.)
   OPINION OF THE COURT

Chief Judge Lippman.

While attending a summer program administered by defendants on their premises, the infant plaintiff, Luke Anthony Trupia, rode and ultimately fell from a bannister, injuring himself seriously. The complaint seeks to recover principally upon a theory of negligent supervision; it alleges that at the time of the accident Luke, then not yet 12 years of age, had been left wholly unsupervised. This appeal arises from defendants’ motion, granted by Supreme Court, but subsequently denied in the order we now review, to amend their answer to allege assumption of risk; defendants propose to seek dismissal of the action upon the ground that Luke may be deemed to have consented in advance to the risks involved in sliding down a bannister, among them falling from the railing, something which, evidently, had happened to him before.

The Appellate Division denied the sought amendment upon the ground that, under its cases and those of its First Department counterpart, the assumption of risk doctrine is not generally applicable in negligence actions to nullify a defendant’s duty, but is appropriately interposed only to shield a defendant from exposure to liability arising from risks inhering in athletic and recreational activities (62 AD3d 67 [3d Dept 2009]). The Court did, however, note that the Second and Fourth Departments had permitted broader use of the doctrine, and presumably granted defendants leave to appeal from its unanimous decision so that the interdepartmental inconsistency over the applicability of the doctrine might be resolved. We now answer the question consequently certified to us by the Appellate Division—whether it erred “in reversing, on the law, the order of the Supreme Court by denying defendants’ motion for leave to amend their answer to include the affirmative defense of primary assumption of risk?”—in the negative.

In 1975, following this Court’s decision in Dole v Dow Chem. Co. (30 NY2d 143 [1972]), where we held, in part, that the “[r]ight to apportionment of liability ... as among parties involved together in causing damage by negligence, should rest on relative responsibility and ... be determined on the facts” (id. at 153), the Legislature abolished contributory negligence and assumption of risk as absolute defenses and provided instead that

“[i]n any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages” (CPLR 1411 [emphasis added]).

Nonetheless, assumption of risk has survived as a bar to recovery. The theory upon which its retention has been explained and upon which it has been harmonized with the now dominant doctrine of comparative causation is that, by freely assuming a known risk, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from the risk (see Turcotte v Fell, 68 NY2d 432, 438-439 [1986]). The doctrine, then, is thought of as limiting duty through consent— indeed, it has been described a “principle of no duty” rather than an absolute defense based upon a plaintiff’s culpable conduct (Morgan v State of New York, 90 NY2d 471, 485 [1997] [emphasis omitted]; accord Turcotte v Fell, 68 NY2d at 438)— and, as thus conceptualized can, at least in theory, coexist with the comparative causation regimen. The reality, however, is that the effect of the doctrine’s application is often not different from that which would have obtained by resort to the complete defenses purportedly abandoned with the advent of comparative causation—culpable conduct on the part of a defendant causally related to a plaintiffs harm is rendered nonactionable by reason of culpable conduct on the plaintiff’s part that does not entirely account for the complained-of harm. While it may be theoretically satisfying to view such conduct by a plaintiff as signifying consent, in most contexts this is a highly artificial construct and all that is actually involved is a result-oriented application of a complete bar to recovery. Such a renaissance of contributory negligence replete with all its common-law potency is precisely what the comparative negligence statute was enacted to avoid.

The doctrine of assumption of risk does not, and cannot, sit comfortably with comparative causation. In the end, its retention is most persuasively justified not on the ground of doctrinal or practical compatibility, but simply for its utility in “facilitat[ing] free and vigorous participation in athletic activities” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 657 [1989]; Morgan, 90 NY2d at 484; see Turcotte, 68 NY2d at 439). We have recognized that athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and have employed the notion that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. We have not applied the doctrine outside of this limited context and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation (see Arbegast v Board of Educ. of S. New Berlin Cent. School, 65 NY2d 161, 168 [1985]) that the Legislature has deemed applicable to “any action to recover damages for personal injury, injury to property, or wrongful death” (CPLR 1411 [emphasis added]).

No suitably compelling policy justification has been advanced to permit an assertion of assumption of risk in the present circumstances. The injury-producing activity here at issue, referred to by the parties as “horseplay,” is not one that recommends itself as worthy of protection, particularly not in its “free and vigorous” incarnation, and there is, moreover, no nexus between the activity and defendants’ auspices, except perhaps negligence. This is, in short, not a case in which the defendant solely by reason of having sponsored or otherwise supported some risk-laden but socially valuable voluntary activity has been called to account in damages.

Allowing the defense here would have particularly unfortunate consequences. Little would remain of an educational institution’s obligation adequately to supervise the children in its charge (see Mirand v City of New York, 84 NY2d 44, 49 [1994]) if school children could generally be deemed to have consented in advance to risks of their misconduct. Children often act impulsively or without good judgment—that is part of being a child; they do not thereby consent to assume the consequently arising dangers, and it would not be a prudent rule of law that would broadly permit the conclusion that they had done so. If the infant plaintiff’s harm is attributable in some measure to his own conduct, and not to negligence on defendants’ part, that would be appropriately taken account of within a comparative fault allocation; it is not a predicate upon which an assumption of risk should be permitted to be applied.

We do not hold that children may never assume the risks of activities, such as athletics, in which they freely and knowingly engage, either in or out of school—only that the inference of such an assumption as a ground for exculpation may not be made in their case, or for that matter where adults are concerned, except in the context of pursuits both unusually risky and beneficial that the defendant has in some nonculpable way enabled.

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

Smith, J. (concurring).

This seems to me an extremely easy case. Assumption of risk cannot possibly be a defense here, because it is absurd to say that a 12-year-old boy “assumed the risk” that his teachers would fail to supervise him. That is a risk a great many children would happily assume, but they are not allowed to assume it for the same reason that the duty to supervise exists in the first place: Children are not mature, and it is for adults, not children, to decide how much supervision they need.

The majority makes this point, which is enough to dispose of the case, near the end of its opinion (majority op at 396 [“Little would remain of an educational institution’s obligation adequately to supervise the children in its charge ... if school children could generally be deemed to have consented in advance to risks of their misconduct”]). The rest of the majority opinion is, in my view, an extended dictum, which seems to say that the assumption of risk defense is largely if not entirely limited to cases involving “athletic and recreative activities” (majority op at 395).

The majority’s dictum invites a number of questions that the majority makes no attempt to answer. Most obvious among them: What exactly is “athletic or recreative” activity? Indeed, why was Luke Trupia’s chosen activity—sliding down a banister—not “recreative”? He was obviously doing it for fun. The majority says that “athletic and recreative activities possess enormous social value” (majority op at 395)—a value that presumably does not inhere in banister sliding. But why exactly is sliding down a banister (supposing it to be done by an adult with a taste for such amusement) of less “social value” than sliding down a ski slope or bobsled run? And if the latter activities are more socially valuable than the former, why is the banister slider, who chose the less desirable form of amusement, in a better position to recover damages than the skier or bobsledder?

Assumption of risk in tort law is a hard idea to understand, and I do not imply that the majority’s understanding of it is necessarily wrong. There may be perfectly good answers to the questions I have asked, and to the many others that could be asked about this subject. But I think it is a mistake to make sweeping pronouncements in a case that does not require it, while ignoring the questions those sweeping pronouncements raise.

Judges Ciparick, Graffeo and Jones concur with Chief Judge Lippman; Judge Smith concurs in result in a separate opinion in which Judges Read and Pigott concur.

Order affirmed, etc.

       This does not, of course, mean that the doctrine is applicable wherever these conditions are met; they are threshold conditions only. The doctrine’s application will also necessarily depend upon whether, under the particular circumstances, the plaintiff may be said to have freely and knowingly consented to assume the risks of a qualifying activity.


text:
    [927 NE2d 1056, 901 NYS2d 572]
    American Standard, Inc., Respondent, v OakFabco, Inc., Formerly Known as Kewanee Boiler Corp., Appellant.
    Argued February 16, 2010;
    decided April 6, 2010

      POINTS OF COUNSEL

      Landman Corsi Ballaine & Ford P.C., New York City (William G. Ballaine, Michael L. Gioia and Jason C. Astle of counsel), for appellant.
    I. The Appellate Division erred by declaring that OakFabco, Inc. assumed liability to all tort plaintiffs injured by Kewanee Boiler Corp. boilers sold, leased or installed before 1970. (Grant-Howard Assoc. v General Housewares Corp., 63 NY2d 291; East Prairie R-2 School Dist. v U.S. Gypsum Co., 813 F Supp 1396; Breed v Insurance Co. of N. Am., 46 NY2d 351; Matter of Covert, 97 NY2d 68; Beal Sav. Bank v Sommer, 8 NY3d 318; Muzak Corp. v Hotel Taft Corp., 1 NY2d 42; Two Guys from Harrison-N.Y. v S.F.R. Realty Assoc., 63 NY2d 396; Burns Intl. Sec. Servs. v International House, 125 AD2d 239; NFL Enters. LLC v Comcast Cable Communications, LLC, 51 AD3d 52; Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342.) II. The Appellate Division erred by granting injunctive relief. (Kane v Walsh, 295 NY 198; Thomas v Musical Mut. Protective Union, 121 NY 45; Matter of Gerges v Koch, 62 NY2d 84; Borenstein v Rochel Props., 176 AD2d 171.)

      McGuire Woods LLP, New York City (Yvette Harmon, Marshall Beil and Sarah Schaeffer-Roth of counsel), and McGuire Woods LLP, Charlottesville, Virginia (Meghan M. Cloud of counsel), for respondent.
    I. The courts below properly interpreted the 1970 agreement; Grant-Howard Assoc. v General Housewares Corp. (63 NY2d 291 [1984]) is not to the contrary, (Schumacher v Richards Shear Co., 59 NY2d 239; Slatt v Slatt, 64 NY2d 966; Breed v Insurance Co. of N. Am., 46 NY2d 351; Laba v Carey, 29 NY2d 302; Levine v Shell Oil Co., 28 NY2d 205; Bailey v Fish & Neave, 8 NY3d 523; Israel v Chabra, 12 NY3d 158; Muzak Corp. v Hotel Taft Corp., 1 NY2d 42; Brady v Williams Capital Group, L.P., 64 AD3d 127; Consedine v Portville Cent. School Dist., 12 NY3d 286.) II. The doctrines of res judicata, collateral estoppel and judicial estoppel preclude OakFabco, Inc. from denying its assumption of pre-1970 liabilities. (O’Brien v City of Syracuse, 54 NY2d 353; Ripley v Storer, 309 NY 506; Matter of Hunter, 4 NY3d 260; Kaufman v Eli Lilly & Co., 65 NY2d 449; Statter v Statter, 2 NY2d 668; Chisholm-Ryder Co. v Sommer & Sommer, 78 AD2d 143; Gilberg v Barbieri, 53 NY2d 285; Tedesco v Tedesco, 64 AD3d 583; Karasik v Bird, 104 AD2d 758; Matter of Luna v Dobson, 97 NY2d 178.) III. Injunctive relief is appropriate and necessary. (Matter of New York Charter Schools Assn., Inc. v DiNapoli, 13 NY3d 120; Koob v IDS Fin. Servs., 213 AD2d 26; Marine Midland Bank v United Mo. Bank, 223 AD2d 119; GrantHoward Assoc. v General Housewares Corp., 63 NY2d 291.)
   OPINION OF THE COURT

Smith, J.

The issue here is whether the buyer of a boiler business assumed the seller’s liabilities for tort claims based on boilers sold before the business was acquired, where the tort claimants were not injured until after the acquisition. We hold that the language of the parties’ agreement, read in context, shows that the buyer did assume those liabilities.

I

In 1970, American Standard, Inc. sold its Kewanee Boiler division to Kewanee Boiler Corp., now known as OakFabco, Inc. (OakFabco). The parties entered an asset purchase and sale agreement which described the purpose of the transaction in the following words:

“Seller desires to sell, and Buyer desires to purchase, substantially all the assets of Seller, real and personal, tangible and intangible belonging to it, which are used in connection with Seller’s [Kewanee Boiler] business and operations . . . subject to all debts, liabilities, and obligations connected with or attributable to such business and operations.”

The agreement said that OakFabco would purchase “Kewanee Assets” subject to “Kewanee Liabilities.” The term “Kewanee Liabilities” was defined as “all the debts, liabilities, obligations and commitments (fixed or contingent) connected with or attributable to Kewanee existing and outstanding at the Closing Date.”

The boilers manufactured by Kewanee had been insulated with asbestos, and as a result many tort claims were brought in the years and decades following the purchase of the business. Some of those claims were brought by plaintiffs who had suffered injuries after the closing of the transaction, allegedly attributable to boilers manufactured and sold before the closing. In this declaratory judgment action brought by American Standard against OakFabco, the issue is whether liabilities for such injuries were among the “Kewanee Liabilities” that OakFabco assumed.

On cross motions for summary judgment, Supreme Court held that these liabilities were assumed by OakFabco, and entered a declaratory judgment accordingly (American Std., Inc. v Oakfabco, Inc., 26 Misc 3d 1216[A], 2008 NY Slip Op 52705[U]). The Appellate Division affirmed Supreme Court’s declaration with minor changes, and also granted American Standard’s request “to permanently enjoin [OakFabco] from relitigating its assumption of the aforementioned obligations in any forum” (American Std., Inc. v Oakfabco, Inc., 58 AD3d 485, 486 [1st Dept 2009]). We granted leave to appeal (12 NY3d 712 [2009]), and now affirm the Appellate Division’s declaration, but modify its order by vacating the injunction.

II

American Standard’s position—that OakFabco assumed all tort liabilities arising out of boilers manufactured by the Kewanee Boiler division, whether the injury was suffered before or after American Standard sold the division—is strongly supported by the purpose of the transaction, as described in the agreement itself: It was a purchase and sale of substantially all the assets of the Kewanee Boiler business “subject to all debts, liabilities, and obligations connected with or attributable to such business and operations.” Nothing in the nature of the transaction suggests that the parties intended OakFabco, which got all the assets, to escape any of the related obligations.

OakFabco, however, argues that the definition of “Kewanee Liabilities”—the liabilities OakFabco assumed—is less broad than the purpose of the transaction would imply. It stresses the words “existing and outstanding” in the definition—“all the debts, liabilities, obligations and commitments . . . existing and outstanding at the Closing Date” (emphasis added). According to OakFabco, a tort claim cannot be “existing and outstanding” before the tort plaintiff has been injured, because until then it is not possible for a tort lawsuit to be brought.

If the words “liabilities . . . existing and outstanding” were read in isolation, OakFabco’s interpretation of them would be plausible. Indeed, we adopted a similar interpretation of similar language, “liabilities . . . which exist at the Closing Date,” in Grant-Howard Assoc. v General Housewares Corp. (63 NY2d 291, 295 [1984]). But the transaction at issue in Grant-Howard was of a different kind from the one we are now considering.

The defendant in Grant-Howard, General Housewares Corporation, had entered into a “Reorganization Agreement” with Holt Howard Associates, Inc. by which General Housewares bought substantially all of Holt Howard’s assets, but carefully limited its assumption of liabilities. The agreement provided that General Housewares would not “be liable for any damages, claims, losses, liabilities or expenses . . . with respect to any liabilities, obligations or other commitments not assumed” (id.). By contrast, the agreement in this case shows that OakFabco simply took over all of American

Standard’s Kewanee Boiler business; nothing in the purchase and sale agreement suggests an intention to leave any obligations related to that business behind.

That there was no such intention is made clear by a clause in the agreement relating to certain obligations owed to the boiler division’s customers. The agreement said that the buyer would deliver at the closing:

“An executed undertaking wherein the Buyer will assume and agree to pay, and defend and hold Seller harmless against, all Kewanee Liabilities, including, by way of specification but not limitation, the following: . . .
“(iii) warranty, service, repair and return obligations of Kewanee and other claims and complaints arising out of or in connection with any products manufactured, sold, leased or installed by Kewanee on or prior to the Closing Date . . . .”

This language clearly meant that the buyer would deal with any problems customers had after the closing date with boilers that had been installed previously. It would have been absurd for OakFabco to tell a customer whose boiler failed after the closing that, since the customer’s claim was not “existing and outstanding” on the closing date, it was not OakFabco’s problem. By including warranty, service, repair and return claims of this kind in the definition of “Kewanee Liabilities,” the parties demonstrated that they were not reading the words “existing and outstanding” as OakFabco would have us read them.

We therefore agree with the Appellate Division that the liabilities assumed by OakFabco include claims brought by tort claimants injured after the closing date by boilers installed before that date. The Appellate Division erred, however, in enjoining OakFabco from ever relitigating this issue. As a general rule, parties are allowed to take any position they like in litigation, as long as they can make a good faith argument for it, and we see no reason to make an exception to that rule here. It may well be that our decision today will preclude OakFabco from relitigating the issue we decide, in the sense that any attempt to relitigate it should be rejected; but OakFabco should not be enjoined from arguing otherwise.

Accordingly, the order of the Appellate Division should be modified by vacating the award of injunctive relief and as so modified affirmed, without costs.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.

Order modified, etc.


text:
    [927 NE2d 1053, 901 NYS2d 569]
    The People of the State of New York, Respondent, v Avery Pettigrew, Appellant.
    Argued February 18, 2010;
    decided April 6, 2010

      POINTS OF COUNSEL

      Legal Aid Society, Criminal Appeals Bureau, New York City (Nancy E. Little and Steven Banks of counsel), for appellant.
    Where the People failed to prove that appellant was armed with a dangerous instrument, as defined in the Sex Offender Registration Act Guidelines, and the hearing court not only failed to apply that definition but also shifted the burden of proof to appellant, the court erred in assigning appellant 30 points under factor 1 on the Risk Assessment Instrument and in adjudicating him a level three risk. (People v David W., 95 NY2d 130; Doe v Pataki, 3 F Supp 2d 456; Doe v Department of Pub. Safety ex rel. Lee, 271 F3d 38; Matter of VanDover v Czajka, 276 AD2d 945; E.B. v Verniero, 119 F3d 1077; Solomon v State of New York, 146 AD2d 439; Rossi v Hartford Fire Ins. Co., 103 AD2d 771; Krol v Eckman, 256 AD2d 945; Matter of Storar, 52 NY2d 363; People v Hilton, 145 AD2d 352.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Mary C. Farrington and Patrick J. Hynes of counsel), for respondent.
    Defendant was correctly assessed 30 points for being armed with a dangerous instrument. (People v Windham, 10 NY3d 801; Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745; Doe v Pataki, 120 F3d 1263; People v Buss, 11 NY3d 553; People v Stevens, 91 NY2d 270; People v Mingo, 12 NY3d 563; People v Carter, 53 NY2d 113; People v Smith, 11 NY3d 797; Addington v Texas, 441 US 418; People v Geraci, 85 NY2d 359.)
   OPINION OF THE COURT

Jones, J.

The issue before this Court is whether the People proved by clear and convincing evidence that defendant was armed with a dangerous instrument for the purposes of classifying him a level three sex offender under the Sex Offender Registration Act (SORA). We hold that defendant’s display of a gun to the victim and its threatened use constitute clear and convincing evidence that he was armed with a dangerous instrument during the commission of the crime in the context of a SORA hearing.

In 2003, defendant Avery Pettigrew pleaded guilty to rape in the first degree based on an incident earlier that year in which he forcibly raped a 16-year-old girl, and was sentenced to a term of five years’ incarceration followed by five years’ postrelease supervision. In April 2007, prior to defendant’s conditional release, a SORA proceeding was conducted for the purpose of determining his risk level. The Risk Assessment Instrument (RAI) prepared for the hearing assessed defendant 120 points, designating him a presumptive level three sex offender. The Board of Examiners also prepared a case summary prior to the SORA hearing. According to this case summary, while in pursuit of the victim, defendant said to her “[i]f I can’t have you, no one will.” He followed her into the stairwell of her apartment building and choked her. Then, defendant showed the victim a gun sticking out of his waistband, tore her pants down and raped her. Afterwards, defendant informed the victim that he would shoot her if she told anyone.

At the SORA hearing, defendant disputed the 30 points the Board of Examiners of Sex Offenders assessed under factor 1 for having been armed with a dangerous instrument. Defendant specifically argued that the People failed to prove by clear and convincing evidence that the gun he possessed during the rape was loaded and operable, proof that some appellate courts have required in first degree robbery cases based on a “use or the threatened use of a dangerous instrument” theory. Supreme Court rejected defendant’s argument, adopted the Board’s findings, and adjudicated defendant a level three offender. The Appellate Division unanimously affirmed (People v Pettigrew, 59 AD3d 276 [2009]). We now affirm.

A SORA proceeding, which is civil in nature, determines the risk of reoffense by a person convicted of a qualifying sex offense and requires that individual to register with law enforcement officials according to that risk level (see People v Mingo, 12 NY3d 563, 570-571 [2009]). The People “bear the burden of proving the facts supporting the determinations” by clear and convincing evidence (Correction Law § 168-n [3]). According to the Board of Examiners of Sex Offenders, points in the RAI “should not be assessed for a factor . . . unless there is clear and convincing evidence of the existence of that factor” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, ¶ 7, at 5 [2006]). Indeed, we held that the RAI case summaries, such as the one prepared by the Board of Examiners of Sex Offenders in this case, “meet the ‘reliable hearsay’ standard for admissibility at SORA proceedings” (Mingo, 12 NY3d at 573). The risk level suggested by the RAI, however, is merely presumptive, and the assigning of a risk level is within the sound discretion of the SORA court (see Correction Law § 168-n [3]).

Here, the People proved by clear and convincing evidence that defendant was armed with a dangerous instrument during the commission of the offense. A "[d]angerous instrument means ‘any instrument, article or substance, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury’ ” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 8 [2006], quoting Penal Law § 10.00 [13]). Defendant’s display of the gun to the victim and threat to shoot her constitute clear and convincing evidence that the gun was a dangerous instrument (see People v Dodt, 61 NY2d 408, 415 [1984] [“a threat to use a gun . . . can only be understood as a threat that the weapon is operable”]; see also People v Walker, 15 AD3d 692, 692 [3d Dept 2005] [pulling out a gun and placing it to the victim’s head was clear and convincing evidence under the RAI and SORA Guidelines that the defendant was armed with a dangerous instrument]). We therefore reject defendant’s assertion that points should not be assessed under this SORA factor absent evidence that the gun was loaded and operable. Thus, viewing the record as a whole, the People have met their burden that defendant was armed with a dangerous instrument.

Accordingly, the order should be affirmed, without costs.

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

Order affirmed, without costs.

      . “This evidence can be derived from the sex offender’s admissions; the victim’s statements; ... or from any other reliable source” (id.).

      . Indeed, if defendant “used, threatened to use or attempted to use” the gun as a bludgeon, it clearly would qualify as a dangerous instrument (see McLaughlin v United States, 476 US 16, 18 [1986]; see also People v Colavito, 126 AD2d 554 [2d Dept 1987]).