author: Smith, J. Jones, J. (dissenting).

text:
    [970 NE2d 856, 947 NYS2d 821]
    The People of the State of New York, Respondent, v Leo Leonard, Appellant.
    Argued April 25, 2012;
    decided May 31, 2012

      POINTS OF COUNSEL

      Stuart M. Cohen, Rensselaer, for appellant.
    I. The People failed to prove a kidnapping. (People v Petre, 151 Misc 2d 543; Matter of Bennett v Jeffreys, 40 NY2d 543; Offenhartz v Cohen, 144 Misc 2d 130; People v McDonald, 147 Misc 2d 33; People v Brown, 264 AD2d 12.) II. The trial court’s refusal to rule on defendant’s pretrial request for inspection of the grand jury minutes constituted error per se; if not error per se, the error was not harmless. (People v Wood, 66 NY2d 374; People v Jones, 47 NY2d 409, 444 US 946; People v Damiano, 87 NY2d 477; People v Lawrence, 64 NY2d 200; Matter of Veloz v Rothwax, 65 NY2d 902; People v Harris, 82 NY2d 409.) III. The remarks of the prosecutor on summation, to which defense counsel objected, denied defendant a fair trial. (People v Riback, 13 NY3d 416; People v Calabria, 94 NY2d 519; People v Ashwal, 39 NY2d 105.)

      D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb and Shirley Huang of counsel), for respondent.
    I. The evidence was legally sufficient to support defendant’s conviction of kidnapping in the second degree. (People v Hawkins, 11 NY3d 484; People v Gray, 86 NY2d 10; People v Carncross, 14 NY3d 319; People v Hines, 97 NY2d 56; Matter of Bennett v Jeffreys, 40 NY2d 543; Offenhartz v Cohen, 144 Misc 2d 130; People v Kearns, 56 AD3d 1047, 12 NY3d 784; People v Gary, 87 AD2d 655; People v Franklin, 79 AD2d 611, 52 NY2d 903; Riley v County of Broome, 95 NY2d 455.) II. County Court’s failure to perform an inspection of the grand jury minutes prior to trial to determine whether the charges were supported by legally sufficient evidence was not per se reversible error, and such failure can be subject to harmless error analysis. (People v

      Archie, 78 AD3d 1560, 16 NY3d 856; People v Smith, 13 AD3d 1121, 4 NY3d 803; People v Sommerville, 6 AD3d 1232, 3 NY3d 648; People v Crimmins, 36 NY2d 230; People v Patterson, 39 NY2d 288, 432 US 197; People v Agramonte, 87 NY2d 765; People v Casey, 95 NY2d 354; People v Becoats, 17 NY3d 643; People v Wood, 66 NY2d 374; People v Kelly, 5 NY3d 116.) III. The remarks of the prosecutor on summation, challenged by the defense, did not deprive defendant of his constitutional right to a fair trial, as the trial court not only sustained most of defendant’s objections, but issued prompt curative instructions, sua sponte, which served to alleviate any potential prejudice, and defendant did not object to the instructions as given or request further corrective action. (People v Medina, 53 NY2d 951; People v Heide, 84 NY2d 943; People v Davis, 58 NY2d 1102; People v Santiago, 52 NY2d 865; People v Williams, 46 NY2d 1070; People v Alvino, 71 NY2d 233; People v Lott, 55 AD3d 1274, 11 NY3d 898; People v Tinning, 142 AD2d 402, 73 NY2d 1022; People v Galloway, 54 NY2d 396; People v Ortiz, 54 NY2d 288.)
   OPINION OF THE COURT

Smith, J.

This case raises the question of whether it is possible for a parent who has custodial rights to a child to be guilty of kidnapping that child. We hold that it is possible, and that it happened here, where defendant used his baby daughter as a hostage, threatening to kill her if the police approached him.

I

Defendant had a romantic relationship with a woman whom we will call Mary, which ended a few days after their daughter was born. Mary then moved with the baby from Brooklyn, where she and defendant had both been living, to Ulster County. There was no court order affecting the custody of the child, so defendant and Mary were equally entitled to custody.

When the baby was six weeks old, defendant paid an unexpected visit to Mary’s new home. He and Mary had an argument, in the course of which he abused her verbally, threatened her with a knife, and cut her. He then calmed down and permitted Mary to leave for work, while the baby remained with him. Mary called her mother and a friend from her car, and the friend called the police.

Some time later, Mary’s mother and stepfather came to Mary’s home and found defendant outside the house, holding the baby. Shortly after that, Mary, her employer and several police officers arrived on the scene. At the sight of the police, defendant took out a knife and gestured toward the baby with it; still holding the baby, he retreated into the house. There followed a lengthy discussion in a bedroom between defendant and the police officers, during which defendant held the knife near the child’s chest and throat, and told the officers that if they came closer he would kill the child. He was finally persuaded to give the baby, unharmed, to the police.

Defendant was convicted of kidnapping in the second degree, as well as burglary, endangering the welfare of a child and two weapons offenses. The Appellate Division affirmed, holding among other things that the evidence of kidnapping was legally sufficient (83 AD3d 1113 [3d Dept 2011]). A Judge of this Court granted leave to appeal (17 NY3d 818 [2011]), and we now affirm.

II

Most people no doubt think they know what “kidnapping” means, but the term is a hard one to define. Penal Law § 135.20 says simply: “A person is guilty of kidnapping in the second degree when he abducts another person.” But the statutory definition of “abduct” is more complicated:

“ ‘Abduct’ means to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly physical force.” (Penal Law § 135.00 [2].)

And the statutory definition of “restrain” is more complicated still:

“ ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent and with knowledge that the restriction is unlawful. A person is so moved or confined ‘without consent’ when such is accomplished by (a) physical force, intimidation or deception, or (b) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.” (Penal Law § 135.00 [1].)

A final layer of complexity is added by Penal Law § 135.30, which says:

“In any prosecution for kidnapping, it is an affirmative defense that (a) the defendant was a relative of the person abducted, and (b) his sole purpose was to assume control of such person.”

We must interpret these statutes to decide whether defendant could be found, on the evidence in this case, to have kidnapped his child. We begin with some relatively easy issues. First, the jury had a basis for rejecting the affirmative defense: It could rationally find that defendant’s “sole purpose” was not to “assume control” of the child, but that at least part of his purpose was to prevent his own arrest. Secondly, it is undisputed that defendant threatened to use “deadly physical force” to prevent the police from taking his daughter from him; thus the last part of the definition of “abduct” is not a problem here.

The decisive question is whether defendant “restrain[ed]” the child, according to the statutory definition of that term. Certainly, he intentionally moved the child from one place to another (from the outside of the house to the inside), and also confined her to the place (the bedroom) to which she had been moved. Defendant argues that he did not “restrict” her “movements” or “interfere” with her “liberty” because a six-week-old child is not capable of going or remaining anywhere voluntarily. But this argument is untenable: it implies that no infant could ever be kidnapped. A restriction on movement, and an interference with “liberty,” should be deemed to exist whenever the lawful movement of a person, including the lawful movement of a child by adults, is hindered.

It remains to decide whether defendant restricted the child’s movements “unlawfully,” “without consent” and “with knowledge that the restriction [was] unlawful.” He argues that it was impossible for him, a custodial parent with as much right to control the child as Mary had, to act unlawfully or without consent, or to know that he was acting unlawfully, either by moving the child or by preventing her from being moved. As the custodial parent, he says, he could lawfully take the child anywhere he wanted, and the only consent he needed was his own. Under the statute, he points out, “consent” exists when “the parent, guardian or other person . . . having lawful control or custody” has “acquiesced in the movement or confinement” (Penal Law § 135.00 [1] [b]).

Concededly, defendant had, in general, a right to control his child’s movements. Had he put the child in his car and driven her to his home in Brooklyn, his behavior would have been lawful. But we reject the idea that he could lawfully move or prevent the movement of the child in the way he did here, or that he could give “consent” to his own act in doing so; there comes a point where even a custodial parent’s control over a child’s movements is unlawful, and indeed obviously so.

We have found no New York decision that sheds much light on the issue before us, but courts in other states have faced similar problems. In State v Viramontes (163 Ariz 334, 788 P2d 67 [1990]), the Supreme Court of Arizona upheld a kidnapping conviction under a statute that contained a definition of “restrain” much like New York’s (see Ariz Rev Stat Ann § 13-1301 [2], quoted at 163 Ariz at 336, 788 P2d at 69). The defendant in that case had put his newborn child in a cardboard box, driven it to a restaurant and abandoned it in a parking lot. The court held that, though the defendant was the child’s custodial parent, he lacked legal authority to “consent” to his own act of abandonment, observing: “under no imaginable circumstances could the legislature have intended that defendant’s . . . taking the child to abandon it be legally authorized” (163 Ariz at 338, 788 P2d at 71).

In Muniz v State (764 So 2d 729 [Fla 2d DCA 2000]), a Florida District Court of Appeal confronted a set of facts almost exactly like ours: The defendant there, confronted by police officers demanding that he hand over his month-old child, reacted by picking up a razor and threatening the baby with it, thus holding the officers at bay for hours. The Muniz court reversed the defendant’s conviction for kidnapping, holding that someone who was a “parent” under Florida law could not be guilty of kidnapping his child when there was no court order depriving him of custody. In a later decision, however, the Florida Supreme Court overruled Muniz and held “that a parent is not exempt from criminal liability for kidnapping his or her own child” (Davila v State, 75 So 3d 192, 197 [2011]; see also State v Siemer, 454 NW2d 857 [Iowa 1990]).

Like the Supreme Courts of Arizona, Florida and Iowa, we conclude that a kidnapping by a custodial parent of his own child is not a legal impossibility. It is possible, though only in cases, like this one, where a defendant’s conduct is so obviously and unjustifiably dangerous or harmful to the child as to be inconsistent with the idea of lawful custody.

Our holding should not be too readily extended. Not every parent who disciplines a child inappropriately—not even every parent who commits child abuse—becomes a kidnapper when he or she causes the child to move from place to place, or to remain stationary. But when a man holds a knife to his child and threatens to murder her if anyone tries to take her from him, a line has been crossed. We hold that, on the facts found by the jury with support in the record, defendant’s restriction of his daughter’s movements was unlawful; that he could not consent to it, because at the time of the crime he did not have “lawful control or custody” of his daughter; and that the unlawfulness was blatant enough to justify the inference that he knew he was acting unlawfully. The evidence that he committed second-degree kidnapping was legally sufficient.

Defendant’s remaining arguments lack merit.

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

Jones, J. (dissenting).

Because I disagree with the majority’s holding that the instant defendant’s conviction for kidnapping in the second degree was supported by legally sufficient evidence, I respectfully dissent. Here, the People failed to adduce such evidence to prove all the elements of kidnapping in the second degree. Moreover, in reaching their holding, the majority has taken defendant’s threatened use of force, which amounts to endangering the welfare of a child, an offense for which defendant was prosecuted and convicted, and contrived a scenario whereby an individual whose actions constitute child endangerment may be punished for second-degree kidnapping, an offense which carries significantly greater punishment.

“ ‘Legally sufficient evidence’ [is] competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof’ (CPL 70.10 [1]). A court’s role in a legal sufficiency review is limited to determining whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (Jackson v Virginia, 443 US 307, 319 [1979] [emphasis omitted]; see also People v Contes, 60 NY2d 620, 621 [1983]). As long as the evidence adduced at trial establishes “ ‘any valid line of reasoning and permissible inferences [that] could lead a rational person’ to convict, . . . the conviction survives sufficiency review” (People v Santi, 3 NY3d 234, 246 [2004], quoting People v Williams, 84 NY2d 925, 926 [1994]). “A sufficiency inquiry requires a court to marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof’ (People v Danielson, 9 NY3d 342, 349 [2007]).

“A person is guilty of kidnapping in the second degree when he abducts another person” (Penal Law § 135.20). Under the Penal Law, the term “abduct” means “to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly physical force” (Penal Law § 135.00 [2]). As set forth in Penal Law § 135.00 (1), the term “restrain” means

“to restrict a person’s movements intentionally and unlawfully in such manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent and with knowledge that the restriction is unlawful. A person is so moved or confined ‘without consent’ when such is accomplished by (a) physical force, intimidation or deception, or (b) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.”

Applying the legal sufficiency standard and the relevant kidnapping statutes, the People here failed to adduce legally sufficient evidence as to the “abduct” element (Penal Law §§ 135.20, 135.00 [2]). Specifically, the People failed to establish that (1) defendant’s restriction of his then six-week-old daughter’s movements or interference with her liberty was unlawful and that defendant knew such restriction or interference was unlawful, given that defendant and the child’s mother had, at the time of the incident, equal rights of custody over the child, and (2) defendant’s child, being under 16 years of age, was moved or confined “without consent,” given that defendant’s status as the child’s parent necessarily precludes a finding that “the parent . . . having lawful control or custody of [the child] has not acquiesced in the movement or confinement.”

This incident arose out of a domestic dispute where defendant sought to exercise his parental right to visit his child and both parents had equal custody rights as to the child. Moreover, this dispute escalated from defendant merely holding his baby to the so-called “kidnapping” after he saw the police arrive at the scene. To be sure, defendant engaged in regrettable, criminal conduct for which he was separately prosecuted. The question is whether defendant, by his acts, committed (or sought to commit) the unlawful act of abducting his child. I submit the evidence here does not support such a conclusion. The evolution of the kidnapping statute supports my position.

At common law, kidnapping was a misdemeanor. However, by 1967, the year the Penal Law (including the kidnapping statute) was substantially revised, kidnapping was a capital offense in most American jurisdictions, including New York (see Temp St Commn on Rev of Penal Law and Grim Code, Staff [Commission Staff] Notes, reprinted in NY CLS, Book 23A, Penal Law art 135, at 203; People v Petre, 151 Misc 2d 543, 544 [Sup Ct, Queens County 1991], citing 1 Callaghan’s Criminal Law in New York § 20:01 [3d ed 1987]).

In 1965, the Commission Staff found the kidnapping statute then in effect (former Penal Law § 1250 [1909]), which treated all situations equally, imposed draconian penalties when applied to certain situations such as parental custody disputes (see Commission Staff Notes, supra; Note, The Proposed Penal Law of New York, 64 Columbia L Rev 1469, 1547 [1964]). As written by the Commission Staff:

“One of the seemingly incongruous features of the former crime of kidnapping was its application to the parent who, having lost legal custody of a child, took or enticed it from the other parent or person having legal custody (former [Penal Law § 1250 (A) (2)]). Despite the basically civil nature of these ‘custody battle’ cases, they constituted ‘kidnapping’; and the harshness of the situation was hardly eradicated by reduction of the penalty from life imprisonment to a sentence carrying a ten-year maximum term in the case of a ‘parent’ . . .
“The 1964 study bill excluded these cases from the kidnapping ambit and transferred most of them to a crime entitled ‘custodial interference,’ a class A misdemeanor in its basic or second degree form and a class E felony in its first degree form, which involved • a substantial risk of impairment of the child’s health or safety. . . . The new article, makes sixteen years the key age and applies as follows to a ‘relative’ [including a parent] who takes, entices, restrains or abducts a ‘child’ without his parents’ or lawful guardians’ consent, solely for the purpose of assuming control over him:
“(1) Under no circumstances is such ‘relative’ guilty of ‘kidnapping’ in either degree (§ 135.30)” (Commission Staff Notes at 204).

Penal Law article 135—the revised kidnapping statute— consists of the primary crime of kidnapping, and two lesser offenses: unlawful imprisonment and custodial interference (see Penal Law § 135.00 et seq.). Based on the foregoing, the purpose of article 135, at least in part, was to remove child takings that result from parental custody disputes from the type of offenses punishable under the kidnapping statute.

In spite of the purpose of the amended kidnapping statute, the majority held that “a kidnapping by a custodial parent of his own child is not a legal impossibility” (majority op at 328-329). In support of this holding, the majority relies on decisions of the Supreme Courts of Arizona (State v Viramontes, 163 Ariz 334, 788 P2d 67 [1990]), Florida (Davila v State, 75 So 3d 192, 196-197 [2011] [held the plain language of the Florida kidnapping statute, Florida Statutes § 787.01 (2000), which requires the State to prove that defendant performed an overt act that confines, abducts or imprisons another person against his or her will with one of four specific intents enumerated under the statute, does not exempt a parent from criminal liability for kidnapping his child]) and Iowa (State v Siemer, 454 NW2d 857, 863 [1990] [“parents may not hide behind the guise of authority to escape punishment for conduct that is proscribed for all others by the kidnapping statute”]). However, the majority’s reliance on these cases is misplaced.

These foreign cases interpret statutes different from Penal Law §§ 135.20 and 135.00. The Penal Law, unlike the kidnapping statutes construed by the Florida and Iowa Supreme Courts, separately defines the restriction of movement and lack of consent elements of the term “restrain,” and only applies the unlawful use of force concept to the lack of consent element. In other words, our kidnapping statute provides that a parent’s use of unlawful force only vitiates the child’s consent, not that parent’s belief that he or she had a legal right to restrict the child’s movements.

Viramontes is distinguishable for another reason. In that case, the defendant fathered a child by his 13-year-old stepdaughter and to conceal the birth, he took the newborn from the mother, placed the child in a cardboard box, and abandoned the child in the parking lot of a McDonald’s restaurant (see Viramontes, 163 Ariz at 335, 788 P2d at 68). The Supreme Court of Arizona held that the defendant, the father of the child, can be convicted of kidnapping where the defendant’s intent in restraining the child is for an act enumerated in the kidnapping statute (163 Ariz at 336, 788 P2d at 69). Because that court determined that the defendant’s restraint of his child was prompted by his intent to abandon the child, which is an Arizona felony, the defendant’s actions were plainly within the unambiguous language of the Arizona kidnapping statute (id.). Contrary to Viramontes, the evidence in this case establishes that defendant’s actions as to his daughter were prompted by an intent to assume control over the child and exercise his parental right to visit her.

The majority, relying on the cited foreign cases, further concluded that “[i]t is possible, though only in cases, like this one, where a defendant’s conduct is so obviously and unjustifiably dangerous or harmful to the child as to be inconsistent with the idea of lawful custody” (majority op at 329). However, the holdings of the cited foreign cases, which are factually distinct from the case before us, were based on their own unique facts and kidnapping statutes; as such, they do not support the majority’s position that defendant’s conduct here was inconsistent with the concept of lawful custody.

Another troubling aspect of the majority’s conclusion is that it condones punishing defendant for second-degree kidnapping when his actions amounted to endangering the welfare of a child (Penal Law § 260.10 [1] [“A person is guilty of endangering the welfare of a child when . . . (h)e or she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old”]), a criminal offense for which he was convicted. Here, the majority has engaged in a tortured analysis of the relevant kidnapping statutes and determined that this defendant’s commission of acts constituting child endangerment satisfied the “abduct” element of second-degree kidnapping. In my view, this sort of bootstrapping is unacceptable.

Based on the foregoing, I conclude that the evidence adduced at trial was legally insufficient to support defendant’s conviction for second-degree kidnapping, and would modify the order of the Appellate Division by vacating defendant’s kidnapping conviction and dismissing so much of the indictment as charged kidnapping in the second degree; and, as modified, affirm the order of the Appellate Division.

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

Order affirmed.

       The accompanying commentary to Penal Law § 135.00 states:
      “Examples of conduct which would support a second-degree [kidnapping conviction] . . . include child-stealing by a woman who wants a child for herself; abduction and confinement of a person for a short period in an isolated place in order to prevent that person from engaging in a marriage ceremony; and confinement of a watchman by violence for a few hours for the purpose of advancing a burglary” (Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 135.00, at 319).
      This is not an exhaustive list. It merely illustrates the type of conduct that supports a conviction for kidnapping in the second degree.


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [970 NE2d 849, 947 NYS2d 814]
    The People of the State of New York, Respondent, v Quinton Dais, Appellant. The People of the State of New York, Respondent, v Donald Stanley, Appellant.
    Argued May 3, 2012;
    decided May 31, 2012

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Abigail Everett and Robert S. Dean of counsel), for appellant in the first above-entitled action.
    It was error to conduct a new predicate felony hearing at the Drug Law Reform Act (DLRA) proceeding because the 2009 DLRA authorizes the DLRA court only to “effect Em alteration of the existing sentence” (People v Acevedo, 14 NY3d 828, 831 [2010]), by substituting a determinate term of imprisonment for the original indeterminate term and does not otherwise grant the court plenary authority to conduct new “pre-sentence proceedings,” as defined by CPL article 400 (CPL 440.46 [1]; 2009 Drug Law Reform Act, L 2009, ch 56, part AAA, § 9). (People v Vaughan, 62 AD3d 122; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; People v Behlog, 74 NY2d 237; People v Minaya, 54 NY2d 360; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; People v Smith, 79 NY2d 309; People v Kuey, 83 NY2d 278.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Caitlan J. Halligan, Alan Gadlin and Christopher P. Marinelli of counsel), for respondent in the first above-entitled action.
    Upon defendant’s application to be resentenced under the 2009 Drug Law Reform Act, defendant was properly adjudicated a second felony drug offender who had committed a prior violent felony. (People v Utsey, 7 NY3d 398; People v Scarbrough, 66 NY2d 673; People v Paulin, 17 NY3d 238; People v Santiago, 17 NY3d 246; People v Wrotten, 14 NY3d 33; People v Alcequier, 43 AD3d 699; People v Ramirez, 49 AD3d 475; People v Acevedo, 14 NY3d 828; People v Lingle, 16 NY3d 621; People v Sparber, 10 NY3d 457.)

      Appellate Advocates, New York City (David P. Greenberg and Lynn W.L. Fahey of counsel), for appellant in the second above-entitled action.
    Appellant was entitled to challenge the use of his prior convictions at his sentencing under the 2009 Drug Law Reform Act. (People v Behlog, 74 NY2d 237; Townsend v

      Burke, 334 US 736; People v Hansen, 99 NY2d 339; People v Paulin, 17 NY3d 238; People v Acevedo, 14 NY3d 828; People v Mills, 11 NY3d 527; People v Lingle, 16 NY3d 621; People v Sparber, 10 NY3d 457; People v Loughlin, 66 NY2d 633; People v Benston, 19 AD3d 179.)

      Richard A. Brown, District Attorney, Kew Gardens (Sharon Y. Brodt and John M. Castellano of counsel), for respondent in the second above-entitled action.
    Defendant was not entitled to challenge his prior adjudication as a second felony offender at his resentencing pursuant to the 2009 Drug Law Reform Act, as a resentencing under this Act is not a plenary proceeding. (People v Loughlin, 66 NY2d 633; People v Acevedo, 14 NY3d 828; People v Vaughan, 62 AD3d 122; Matter of Murray v Goord, 1 NY3d 29; People v Sparber, 10 NY3d 457; People v Lingle, 16 NY3d 621; People v Romain, 288 AD2d 242; People v Wilkins, 28 NY2d 213; People v Montgomery, 24 NY2d 130; People v Samms, 95 NY2d 52.)
   OPINION OF THE COURT

Pigott, J.

Under the Drug Law Reform Act of 2009 (2009 DLRA), “[a]ny person in the custody of the department of corrections and community supervision convicted of a class B felony offense as defined in . . . [Penal Law article 220] which was committed prior to [January 13, 2005]” and “who is serving an indeterminate sentence with a maximum term of more than three years, may,” subject to certain exclusions, “apply to be resentenced to a determinate sentence in accordance with . . . [Penal Law §§ 60.04 and 70.70] in the court which imposed the sentence” (CPL 440.46 [1]). Penal Law § 70.70 distinguishes between the sentence that a resentencing court must impose on a second felony drug offender who has a prior nonviolent felony conviction, and one it must impose on a second felony drug offender who has a prior violent felony conviction (see Penal Law § 70.70 [3] [a]; [4] [a]). The range of determinate sentences available under the nonviolent category is more lenient than it is for the violent (see Penal Law § 70.70 [3] [b] [i] [minimum of two years and a maximum of 12 for a class B felony]; [4] [b] [i] [minimum of six years and a maximum of 15 for a class B felony]).

These appeals involve a similar issue, albeit in different contexts. At issue in People v Dais is whether the People may introduce a new predicate felony statement at the resentencing proceeding to demonstrate that the defendant must be adjudicated a second felony drug offender whose prior conviction was for a violent felony (thereby requiring his resentencing under Penal Law § 70.70 [4] [b]), notwithstanding the fact that the defendant, at his original sentencing had been adjudicated a second felony offender based on a prior nonviolent felony. The issue presented in People v Stanley is the converse of the one in Dais; in Stanley, it is the defendant who claims that he should be permitted to challenge at his resentencing whether his prior felony conviction was for a nonviolent felony, thereby requiring that he be resentenced pursuant to Penal Law § 70.70 (3) (b). We conclude that a de novo review of whether the defendant’s prior felony is nonviolent or violent is proper in a 2009 DLRA resentencing proceeding.

People v Dais

In June 2005, Quinton Dais was convicted of one count of criminal sale of a controlled substance in the third degree, a class B felony, arising from a buy and bust arrest in October 2004. Prior to sentencing, the People filed a predicate felony statement alleging that Dais had a 1994 felony conviction for criminal sale of a controlled substance in the third degree, a nonviolent felony. Dais admitted to that conviction and the court sentenced him as a second felony offender to an indeterminate term of 7 to 14 years’ imprisonment. His conviction was affirmed on appeal (47 AD3d 421 [1st Dept 2008], lv denied 10 NY3d 809 [2008]).

In October 2009, Dais moved for resentencing under the 2009 DLRA, claiming that he was entitled to be resentenced as a second felony offender whose prior felony conviction was for a nonviolent felony (see Penal Law § 70.70 [3] [a]). The People countered that, assuming Dais was eligible for resentencing, he should be resentenced as a second felony drug offender who had been previously convicted of a violent felony (see Penal Law § 70.70 [4] [a] [emphasis supplied]), pointing to Dais’s 1984 conviction for robbery in the second degree. Dais argued that the People were barred by the doctrines of collateral estoppel and law of the case from “litigating anew” defendant’s predicate felony status.

Supreme Court permitted the People to file a predicate felony statement relative to the 1984 second degree robbery conviction. Dais was then arraigned on that statement and he neither disputed its contents nor challenged the constitutionality of the conviction. The court adjudicated Dais a second felony drug offender with a prior violent felony conviction under section 70.70 (4) and resentenced him to a determinate term of six years’ imprisonment with three years’ postrelease supervision. The Appellate Division unanimously affirmed, holding that Dais’s resentencing motion “placed the case in a procedural posture that made it material, for the first time, that he was not only a predicate felon, but a predicate violent felon as well” (81 AD3d 432, 433 [1st Dept 2011] [citations omitted]). A Judge of this Court granted Dais leave to appeal (17 NY3d 805 [2011]).

People v Stanley

On October 31, 2004, Donald Stanley was arrested and charged for, among other things, two counts of criminally using drug paraphernalia in the second degree, and criminal possession of a controlled substance in the third and fifth degrees. A jury convicted Stanley on those counts. At sentencing, the People filed predicate statements requesting that Stanley be sentenced as a second felony offender and persistent felony offender, relying on Stanley’s November 1984 conviction for attempted criminal sale of a controlled substance in the third degree, and his July 1994 convictions for felony possession of cocaine and robbery in the second degree under Florida Statutes Annotated, title 46, §§ 893.13 and 812.13, respectively.

Stanley did not deny any of the allegations in those statements, nor did he challenge the constitutionality of his prior convictions. The court sentenced him as a second felony offender to an indeterminate term of 121/a to 25 years’ imprisonment on the count of criminal possession of a controlled substance in the third degree (a class B felony), 3x/2 to 7 years’ imprisonment on the count of criminal possession of a controlled substance in the fifth degree, and one year for each count of criminally using drug paraphernalia in the second degree, with all sentences running concurrently. Stanley appealed the underlying drug suppression ruling but did not challenge his second felony offender adjudication, and the Appellate Division affirmed the judgment of conviction (50 AD3d 1066 [2d Dept 2008], lv denied 10 NY3d 964 [2008]).

In October 2009, Stanley moved for resentencing under the 2009 DLRA, asserting that he should not be resentenced as a predicate felon because the Florida statute under which he had been adjudicated a second felony offender, i.e., robbery in the second degree, was not equivalent to a New York felony or violent felony. The appropriate resentence, according to Stanley, should be between one to nine years’ imprisonment and one to two years’ postrelease supervision pursuant to Penal Law § 70.45 (2) (b) and § 70.70 (2). As relevant here, the People opposed resentencing on the ground that Stanley forfeited his right to challenge his adjudication as a predicate felon at his 2006 sentencing by failing to challenge his Florida robbery conviction at that time.

Supreme Court found Stanley eligible for resentencing under the 2009 DLRA, but resentenced him as a second felony drug offender with a prior felony conviction for a violent felony, noting that Stanley’s admission to having committed the Florida offenses at the original sentencing was binding. He was resentenced to a determinate term of 10 years’ imprisonment with three years’ postrelease supervision on the count of criminal possession of a controlled substance in the third degree, and a determinate sentence of 4/2 years’ imprisonment with two years’ postrelease supervision on the count of criminal possession of a controlled substance in the fifth degree, the sentences to run concurrently.

The Appellate Division affirmed, holding that Stanley “was not entitled to a de novo determination of his predicate felony status at the resentencing proceeding, since his predicate felony status was already determined at the original sentencing, and was not challenged at the original sentencing or on direct appeal,” and that he “was properly resentenced as a second felony offender with a prior violent felony conviction” (83 AD3d 968, 969 [2d Dept 2011]). A Judge of this Court granted Stanley leave to appeal (17 NY3d 822 [2011]).

Analysis

We first address the common issue presented in both appeals, namely whether the People (as in Dais) or the defendant (as in Stanley) may litigate de novo, for purposes of resentencing under the 2009 DLRA, whether the defendant has a prior conviction for a nonviolent or violent felony. The defendant in Dais claims that the People should not have been allowed to file a new predicate felony statement pursuant to CPL 400.21 and conduct a new predicate felony hearing in order to prove that Dais had a prior felony conviction for a violent felony because the People relied on a nonviolent felony as the predicate conviction at the original sentencing. The defendant in Stanley claims that, at a minimum, he should be permitted to challenge at his resentencing hearing that his prior Florida conviction for robbery in the second degree was not a violent felony. We conclude, in each case, that the issue of whether the defendant had a prior violent felony (or nonviolent felony in the case of Stanley) may be litigated at resentencing.

The 2009 DLRA directs that any person eligible for resentencing must be resentenced in accordance with Penal Law §§ 60.04 and 70.70 (see CPL 440.46 [1]). Dais and Stanley were each convicted of class B felonies, thereby permitting their resentencing according to the relevant provisions of Penal Law § 70.70 (see Penal Law § 60.04 [3]). For purposes of resentencing under that provision, however, there is a distinction between a “second felony drug offender whose prior felony conviction was not a violent felony,” and a “second felony drug offender whose prior felony conviction was a violent felony” (Penal Law § 70.70 [3] [a]; [4] [a] [emphasis supplied]). With certain exceptions not applicable here, when the court finds, pursuant to CPL 400.21, that a defendant is either a second felony drug offender whose prior conviction was not a violent felony or one whose prior conviction was a violent felony, it must sentence the defendant in accordance with the relevant provision (see Penal Law § 70.70 [3] [b]; [4] DM).

The Drug Law Reform Act of 2004 (2004 DLRA) amended CPL 400.21 by delineating the procedure courts should follow in determining whether a defendant is a second felony drug offender pursuant to Penal Law § 70.70 (1) (b) (see L 2004, ch 738, § 18; CPL 440.46 [3] [making the 2004 DLRA procedures applicable to 2009 DLRA resentencing proceedings]). CPL 400.21 (2), as amended by the 2004 DLRA, provides that

“[w]hen information available to the court or to the people prior to sentencing for a felony indicates that the defendant may have been previously subjected to a predicate felony conviction, a statement must be filed by the prosecutor before sentence is imposed setting forth the date and place of each alleged predicate felony conviction and whether the predicate felony conviction was a violent felony as that term is defined in .. . [Penal Law § 70.02 (7)7, or in any other jurisdiction of an offense which includes all the essential elements of any such felony for which a sentence to a term of imprisonment in excess of one year or death was authorized in this state regardless of whether such sentence was imposed” (emphasis supplied).

The People “must” provide the defendant with the predicate statement and the court “must” inquire whether the defendant wishes to refute anything in the statement. If the defendant does, he must “specify” those allegations he wishes to refute, and any ‘ ‘ [u]ncontroverted allegations in the statement shall be deemed to have been admitted by the defendant” (CPL 400.21 [3]).

The court need not hold a hearing if “the uncontroverted allegations in the statement are sufficient to support a finding that the defendant has been subjected to a predicate felony conviction” (CPL 400.21 [4]). In such a case, the court “must enter” a finding that the defendant’s “predicate felony conviction was of a violent felony as that term is defined in . . . [Penal Law § 70.02]” or, if considering a prior offense from another jurisdiction, whether it “includes all of the essential elements of any such felony for which a sentence to a term of imprisonment in excess of one year or death was authorized.” Upon the entry of a finding under either category, the resentencing court must sentence the defendant in accordance with the provisions of Penal Law §§ 70.06, 70.70 or 70.71 (CPL 400.21 [4]). Where the court enters a finding pursuant to CPL 400.21, “such finding shall be binding upon that defendant in any future proceeding in which the issue may arise” (CPL 400.21 [8]).

Dais asserts that the resentencing court should have sentenced him in accordance with Penal Law §§ 60.04 and 70.70 without considering his 1984 second-degree robbery conviction because the 2009 DLRA does not grant the resentencing court the authority to “revisit” prior recidivist determinations. Essentially, Dais is claiming that the People were prohibited from filing a new predicate statement establishing that, as a second felony drug offender seeking resentencing under the 2009 DLEA, he was “previously convicted of a violent felony” (Penal Law § 70.70 [4]) because he had not been previously adjudicated a “second, felony drug offender previously convicted of a violent felony” under CPL 400.21. Thus, according to Dais, when the People utilized his prior nonviolent felony as a predicate at the original sentencing, the die had been cast, so to speak, and he should be resentenced pursuant to Penal Law § 70.70 (3) (b). We disagree.

Dais’s contention ignores the interplay between Penal Law §§ 60.04 and 70.70, on the one hand, and CPL 400.21 on the other. As relevant here, section 60.04 (3) directs that persons convicted of class B felonies “must be sentenced” in accordance with section 70.70, a statute enacted as part of the 2004 DLRA. Section 70.70 directs that, subject to certain exceptions not applicable here, if the court finds pursuant to CPL 400.21 that a defendant is a second felony drug offender with “a prior felony conviction [that] was not a violent felony” or “a prior felony conviction [that] was a violent felony,” it “shall impose a determinate sentence of imprisonment” (Penal Law § 70.70 [3] [b]; [4] [b]). The People are not only permitted to file a new predicate felony statement upon a defendant’s motion for resentencing, they are required to do so “[w]hen information available to the court or to the people prior to sentencing for a felony indicates that the defendant may have previously been subjected to a predicate felony conviction” and such “predicate felony conviction was a violent felony” (CPL 400.21 [2]).

It was not until the enactment of the 2004 DLRA that the Legislature imposed a distinction between second felony drug offenders whose prior felony was nonviolent and those whose prior felony conviction was for a violent felony. It was the Legislature’s intention to afford leniency to nonviolent drug offenders (see Sponsor’s Mem, Bill Jacket, L 2004, ch 738, at 3-4 [noting that sentences for nonviolent first offenders and offenders with prior nonviolent felony convictions would decline, while sentences for drug offenders with prior violent felony convictions could increase under the 2004 DLRA]). But at the time of Dais’s original sentencing, it was irrelevant under the applicable sentencing scheme whether Dais had a prior violent felony conviction, meaning that the People certainly had no incentive to utilize the 1984 robbery conviction instead of his 1994 conviction for the nonviolent felony of criminal sale of a controlled substance in the third degree. In other words, whether Dais had a prior violent felony conviction was something that had not been litigated at the original sentencing, and the People were not foreclosed from filing a new predicate statement upon Dais’s resentencing motion, nor was the resentencing court prohibited from conducting a recidivist hearing as to whether he had a prior violent felony conviction.

This, of course, does not mean that a defendant may not challenge at resentencing the People’s predicate statement alleging that the defendant had “a prior felony conviction [that] was a violent felony” (Penal Law § 70.70 [4] [a] [emphasis supplied]). Pursuant to the 2004 DLRA, the provisions of which “govern the proceedings on and determination of’ a resentencing motion brought under the 2009 DLRA (CPL 440.46 [3]), the resentencing court “may consider any facts or circumstances relevant to the imposition of a new sentence which are submitted by [the applicant] or the people,” and “shall offer an opportunity for a hearing . . . [and] may also conduct a hearing, if necessary, to determine whether [the applicant] qualifies to be resentenced or to determine any controverted issue of fact relevant to the issue of sentencing” (L 2004, ch 738, § 23). Whether a defendant seeking resentencing has a prior violent felony is clearly relevant to a resentencing proceeding, and the People are not precluded from litigating that issue de novo upon a defendant’s motion for resentencing.

For a similar reason, we conclude that the defendant in Stanley is entitled to challenge whether his out-of-state convictions utilized by the People as part of their predicate felony statements would be considered the equivalent of “violent” felonies in New York. We agree with Stanley that he should be allowed to argue that he was not a second felony drug offender previously convicted of a violent felony, and because he was not afforded an opportunity to challenge that designation, this matter should be remitted to Supreme Court so Stanley can make that argument. This comports with the ameliorative purpose of the 2009 DLRA, which is to ensure that second felony drug offenders with prior nonviolent felonies receive potentially more lenient sentences than those who have a history of violent felonies.

We do, however, reject Stanley’s contention that he is entitled to a complete vacatur of his prior predicate felony adjudication as a second felony offender. At the original sentencing proceeding, Stanley was adjudicated a second felony offender which, according to CPL 400.21 (8), was a finding that was “binding upon . . . [him] in any future proceeding in which the issue may arise.” Unlike the issue of whether Stanley had a prior nonviolent or violent felony—which first arose at Stanley’s resentencing hearing and Stanley never had the chance to contest—Stanley had the opportunity to challenge whether the 1984 Florida robbery conviction was the equivalent of a New York felony for the purpose of designating him a second felony offender. Stanley was required to controvert the People’s predicate statement to that effect at the original proceeding pursuant to CPL 400.21 (3) and (7) (b), but failed to do so. Nor is there any language in the 2009 DLRA permitting a defendant seeking resentencing to relitigate his predicate status. While a resentencing court may impose a more lenient sentence in accordance with the dictates of CPL 440.46 and Penal Law § 70.70, it may not revisit defendant’s prior adjudication as a predicate felon. We make no comment on Stanley’s remaining arguments premised on CPL 440.10 and 440.20.

Accordingly, the order of the Appellate Division in People v Dais should be affirmed, and the order of the Appellate Division in People v Stanley should be reversed and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

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

In People v Dais: Order affirmed.

In People v Stanley: Order reversed, etc.

      . Stanley also claimed that his counsel at the original sentencing was ineffective for failing to contest the People’s contention that Stanley was a predicate felon, because neither of the Florida felonies would constitute a New York felony.

      . Penal Law § 70.70 (1) (b) defines a “second felony drug offender” as “a second felony offender as that term is defined in . . . [Penal Law § 70.06 (1)] . . . who stands convicted of any felony” set forth in Penal Law articles 220 and 221 “other than a class A felony.”

      . Although defendant was convicted and sentenced in 2005, the Drug Law Reform Act of 2004 was not applicable to him because he committed his offense in October 2004 (see People v Utsey, 7 NY3d 398 [2006]).


author: Chief Judge Lippman.

text:
    [971 NE2d 338, 948 NYS2d 208]
    Thomas E. Dombrowski, Respondent, v Raymond W. Bulson, Appellant.
    Argued April 25, 2012;
    decided May 31, 2012

      POINTS OF COUNSEL

      Damon Morey LLP, Buffalo (Vincent G. Saccomando of counsel), for appellant.
    The rule precluding nonpecuniary damages in both civil and criminal attorney malpractice actions is based on sound public policy and should not be disturbed. (Dirito v Stanley, 203 AD2d 903; Risman v Leader, 256 AD2d 1245; Wolkstein v Morgenstern, 275 AD2d 635; Galu v Attias, 923 F Supp 590; Walker v Stroh, 192 AD2d 775; Taylor v Paskoff & Tarnber, LLP, 29 Misc 3d 1125; Sanders v Rosen, 159 Misc 2d 563; Wilson v City of New York, 294 AD2d 290; AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582; Yuko Ito v Suzuki, 57 AD3d 205.)

      Cantor, Lukasik, Dolce & Panepinto, P.C., Buffalo (Marc C. Panepinto and Jeremy C. Toth of counsel), for respondent.
    I. Nonpecuniary damages should be allowed in a legal malpractice case for loss of freedom resulting from negligence in a criminal defense. (Wilson v City of New York, 294 AD2d 290; Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438; Campagnola v Mulholland, Minion & Roe, 76 NY2d 38; VDR Realty Corp. v Mintz, 167 AD2d 986; Panasia Estates, Inc. v Hudson Ins. Co., 10 NY3d 200; Kenford Co. v County of Erie, 73 NY2d 312; Atkins Nutritionals v Ernst & Young, 301 AD2d 547; Rose Lee Mfg. v Chemical Bank, 186 AD2d 548; Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187; Ashland Mgt. v Janien, 82 NY2d 395.) II. The lower court erred in denying plaintiffs claims for lost wages. (Young v Tops Mkts., 283 AD2d 923; Manfredi v Preston, 246 AD2d 580.) III. In light of the federal district court’s decision granting plaintiff a writ of habeas corpus based on ineffective assistance of counsel, defendant should be estopped from relitigating the issues of plaintiffs colorable claim of innocence and proximate cause. (Carmel v Lunney, 70 NY2d 169; Britt v Legal Aid Socy., 95 NY2d 443; Daly v Peace, 54 AD3d 801; Casement v O’Neill, 28 AD3d 508; Boomer v Gross, 34 AD3d 1096; Rosado v Legal Aid Socy., 12 AD3d 356; Biegen v Paul K. Rooney, P.C., 269 AD2d 264; Scanio v Palmiere & Pellegrino, 251 AD2d 1018; Kaufman v Eli Lilly & Co., 65 NY2d 449; Zayatz v Collins, 48 AD3d 1287.)

      Cohen & Fitch LLP, New York City (Joshua P. Fitch of counsel), for Ganpat Ramcharran, amicus curiae.
    An individual should be allowed to recover damages for loss of liberty in an action for legal malpractice. (Kerman v City of New York, 374 F3d 93; Gardner v Federated Dept. Stores, Inc., 907 F2d 1348; Wilson v City of New York, 294 AD2d 290; Wolkstein v Morgenstern, 275 AD2d 635; Smith v Lightning Bolt Prods., Inc., 861 F2d 363; Green v Leibowitz, 118 AD2d 756; Dirito v Stanley, 203 AD2d 903; Jensen v Whitford Co., 167 AD2d 826; Lancellotti v Howard, 155 AD2d 588; Fowler v Town of Ticonderoga, 131 AD2d 919.)
   OPINION OF THE COURT

Chief Judge Lippman.

The issue presented by this appeal is whether plaintiff, suing his former criminal defense attorney in legal malpractice, can recover nonpecuniary damages. We find that such damages are not available in an action for attorney malpractice.

Plaintiff Dombrowski was convicted in September 2000, after a jury trial, of attempted rape in the first degree, sexual abuse in the first degree and endangering the welfare of a child. Plaintiff moved pursuant to CPL 440.10 to vacate his conviction, arguing that he had received ineffective assistance of counsel. County Court denied the motion without a hearing, finding that defendant Bulson—plaintiffs trial attorney—had provided meaningful representation.

Dombrowski then sought a writ of habeas corpus in the United States District Court for the Western District of New York. Plaintiff urged several errors in particular—that defendant attorney failed to investigate or present evidence concerning an allegedly meritorious defense, failed to interview certain potential witnesses and failed to cross-examine the victim regarding discrepancies in her testimony. An evidentiary hearing was held, at which Bulson explained the reasoning behind his professional decisions regarding the conduct of the trial. The magistrate found that errors by defense counsel made it difficult for the jury to make a reliable assessment of the “critical issue” of the victim’s credibility (see Dombrowski v Giambruno, 2006 WL 3717369, *19, 2006 US Dist LEXIS 90325, *53 [WD NY 2006]). The petition was conditionally granted unless the People commenced further criminal proceedings against Dombrowski within 60 days. Dombrowski, however, was not reprosecuted and the indictment was dismissed.

Plaintiff then commenced this action, alleging that he had been damaged as a result of defendant’s attorney malpractice. In relevant part, the complaint alleged that he had been incarcerated from January 17, 2001 until July 19, 2006. He then served a period of postrelease supervision, which was terminated only after his habeas corpus petition was granted.

Supreme Court granted defendant’s motion for summary judgment and dismissed the complaint, finding that plaintiffs receipt of Social Security disability benefits while incarcerated precluded his claim of pecuniary damages and that damages for nonpecuniary loss were not available in an action for attorney malpractice. The Appellate Division modified and reinstated the portion of the complaint seeking nonpecuniary damages (79 AD3d 1587 [4th Dept 2010]). The Court recognized that nonpecuniary damages were not available for legal malpractice claims where the underlying action was a civil matter, but found that an individual who had been wrongfully convicted as a result of attorney malpractice in a criminal matter could recover compensatory damages for loss of liberty and any other losses that were the direct result of his or her imprisonment (see 79 AD3d at 1589-1590). The Court then granted defendant leave to appeal, certifying the following question for our review: “Was the order of this Court entered December 30, 2010, properly made?” We reverse and answer the certified question in the negative.

In order to recover damages in a legal malpractice action, a plaintiff must establish “that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301 [2002]). For malpractice actions arising from allegations of negligent representation in a criminal matter, the plaintiff must have at least a colorable claim of actual innocence—that the conviction would not have resulted absent the attorney’s negligent representation (see Britt v Legal Aid Socy., 95 NY2d 443, 446-447 [2000]). While the criminal charges at issue remain pending, a plaintiff is precluded, for purposes of a civil action, from asserting innocence (see id. at 448).

New York courts that have been confronted with the issue have generally rejected the claim that a plaintiff in a legal malpractice action is entitled to nonpecuniary damages arising out of representation in civil proceedings (see e.g. Dirito v Stanley, 203 AD2d 903, 904 [4th Dept 1994] [affirming dismissal of damages claim for emotional pain and suffering]; Wolkstein v Morgenstern, 275 AD2d 635, 637 [1st Dept 2000] [“A cause of action for legal malpractice does not afford recovery for any item of damages other than pecuniary loss so there can be no recovery for emotional or psychological injury”]).

Plaintiff argues that a different result should obtain here based upon the type of egregious harm most likely to be suffered by a defendant who is the victim of malpractice in a criminal action—the loss of liberty attendant to a period of incarceration—harm that is nonpecuniary in nature. Addressing this type of situation, the First Department acknowledged the argument that limiting recovery to pecuniary damages in cases of malpractice arising from criminal matters would likely deny the claimant any meaningful relief, but found that such limitation was a policy decision that applied equally whether the actions arose in the civil or criminal context (see Wilson v City of New York, 294 AD2d 290, 292-293 [1st Dept 2002]).

The Fourth Department in this case reached the opposite conclusion, finding a parallel between actions for malpractice in a criminal action and claims for false arrest and malicious prosecution (see 79 AD 3d at 1589-1590). Although the harm suffered by the claimant is the same—loss of liberty—we reject the argument that these types of actions are analogous. False arrest and malicious prosecution are intentional torts. Malicious prosecution, in particular, requires a showing that the proceeding was commenced against the claimant with actual malice (see Cantalino v Danner, 96 NY2d 391, 394 [2001]). It makes sense that the scope of recovery for deliberate torts is broader than for torts based on the failure to exercise skill or care (see e.g. Johnson v Jamaica Hosp., 62 NY2d 523, 531 [1984] [“as a matter of settled law, tort liability is predicated on the nature of the act of the tort-feasor, not simply the injury of the victim”]).

We see no compelling reason to depart from the established rule limiting recovery in legal malpractice actions to pecuniary damages. Allowing this type of recovery would have, at best, negative and, at worst, devastating consequences for the criminal justice system. Most significantly, such a ruling could have a chilling effect on the willingness of the already strapped defense bar to represent indigent accused. Further, it would put attorneys in the position of having an incentive not to participate in post-conviction efforts to overturn wrongful convictions. We therefore hold that plaintiff does not have a viable claim for damages and the complaint should be dismissed in its entirety.

Accordingly, the order of the Appellate Division should be reversed, with costs, the order of Supreme Court should be reinstated and the certified question should be answered in the negative.

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order reversed, etc.

       In other classes of cases, where an individual is wrongfully imprisoned as the result of state action, recovery is available under Court of Claims Act § 8-b.


text:
    [971 NE2d 849, 948 NYS2d 568]
    Shawn Bukowski, Appellant, v Clarkson University et al., Respondents.
    Argued May 2, 2012;
    decided June 5, 2012

      POINTS OF COUNSEL

      Murphy, Burns, Barber & Murphy, LLP, Albany (Peter G. Barber and Catherine A. Barber of counsel), for appellant.
    I. The assumption of the risk doctrine was improperly applied. (Arbegast v Board of Educ. of S. New Berlin Cent. School, 65 NY2d 161; Morgan v State of New York, 90 NY2d 471; Benitez v New York City Bd. of Educ., 73 NY2d 650; Turcotte v Fell, 68 NY2d 432; Owen v R.J.S. Safety Equip., 79 NY2d 967; Lamey v Foley, 188 AD2d 157; Demelio v Playmakers, Inc., 19 Misc 3d 911; Moschella v Archdiocese of N.Y., 48 AD2d 856; Ballou v Ravena-Coeymans-Selkirk School Dist., 72 AD3d 1323; Zmitrowitz v Roman Catholic Diocese of Syracuse, 274 AD2d 613.) II. The granting of a directed verdict was improper. (Kozak v Broadway Joe’s, 296 AD2d 683; Szczerbiak v Pilat, 90 NY2d 553; Sherry v North Colonie Cent. School Dist., 39 AD3d 986.)

      Law Offices of Theresa J. Puleo, Albany (Norah M. Murphy of counsel), for respondents.
    I. The trial court properly directed the verdict as a matter of law, viewing all issues of fact in appellant’s favor. (Hotaling v CSX Transp., 5 AD3d 964; Szczerbiak v Pilat, 90 NY2d 553; Calafiore v Kiley, 303 AD2d 816.) II. The trial court correctly held that appellant had assumed the risk of injury by his voluntary and knowing participation. (Turcotte v Fell, 68 NY2d 432; Trupia v Lake George Cent. School Dist., 62 AD3d 67, 14 NY3d 392; Morgan v State of New York, 90 NY2d 471; Green v City of New York, 263 AD2d 385; Maddox v City of New York, 66 NY2d 270; Hernandez v Castle Hill Little League,
      256 AD2d 241; Cuesta v Immaculate Conception R.C. Church, 168 AD2d 411; Davidoff v Metropolitan Baseball Club, 61 NY2d 996; Roberts v Boys & Girls Republic, Inc., 51 AD3d 246; Harris v Cherry Val.-Springfield School Dist., 305 AD2d 964.) III. Appellant’s arguments regarding law of the case are contrary to the position taken at trial and are based on a misinterpretation of the record. IV The deposition transcripts are not a part of the trial record and are not relevant to the lower court’s decision or this appeal.
   OPINION OF THE COURT

Chief Judge Lippman.

Almost every day, we are reminded of the injury risks attendant to participation in organized sports. The question presented in this personal injury action is whether a college baseball pitcher assumed the risk of injury associated with his participation in indoor practice. We conclude that plaintiff Bukowski assumed the inherent risk of being hit by a line drive and affirm the order of the Appellate Division.

Plaintiff had played organized baseball since he was five years old and pitched at the varsity level in high school for three years. He was recruited by Clarkson University to play on their Division III baseball team as a pitcher. During the winter of his freshman year, Bukowski began indoor training in February and was informed by his coaches that he would be practicing “live” in a nylon cage, meaning the pitcher would throw from an artificial mound at regulation distance to the batter and catcher. On the day before his accident, Bukowski observed pitchers throwing “live” practice without an L-screen in the indoor facility. Despite never having practiced “live” indoors and without an L-screen, Bukowski entered the cage on March 2, 2006, threw about six pitches without batter contact, and then threw a fastball which the batter hit directly back at him, striking Bukowski in the jaw and breaking his tooth.

Plaintiff brought suit against Clarkson University and head coach James Kane to recover damages for injuries sustained. After discovery, Supreme Court denied defendants’ motion for summary judgment. Plaintiffs theory at trial was that the risk of being hit by a batted ball was enhanced due to the multicolored pitching backdrop and low lighting at the indoor facility, which made it harder to see the white ball, and the failure to use an L-screen. At the close of evidence, the trial court granted defendants’ motion for directed verdict on the ground that plaintiff assumed the commonly appreciated risk in baseball of being hit by a line drive. The Appellate Division affirmed, and the appeal followed based on the two-Justice dissent in the court {see CPLR 5601 [a]). For the reasons that follow, we affirm.

The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities “is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” (Morgan v State of New York, 90 NY2d 471, 484 [1997]). An educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks (see Benitez v New York City Bd. of Educ., 73 NY2d 650, 658 [1989]). “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, 68 NY2d 432, 439 [1986]). Belatedly, risks which are commonly encountered or “inherent” in a sport, such as being struck by a ball or bat in baseball, are “risks [for] which various participants are legally deemed to have accepted personal responsibility” (Morgan, 90 NY2d at 484). The primary assumption of risk doctrine also encompasses risks involving less than optimal conditions (see Sykes v County of Erie, 94 NY2d 912, 913 [2000] [playing on an irregular surface is a risk inherent in outdoor basketball activities]; Maddox v City of New York, 66 NY2d 270, 274-275 [1985] [baseball player assumed the risk of playing on a wet and muddy field]; see also Martin v State of New York, 64 AD3d 62, 64 [3d Dept 2009], lv denied 13 NY3d 706 [2009]).

Here, plaintiff was an experienced and knowledgeable baseball player who assumed the inherent risk of being hit by a line drive. Plaintiff testified at trial that he was aware of the risk of getting hurt in baseball, had seen other pitchers get hit by batted balls, had experienced balls being batted back at him, and had hit batters with his own pitches. Bukowski also testified that in over 13 years of playing baseball, he played on numerous fields and facilities under a wide variety of conditions, including variations in lighting and pitching backdrops. Plaintiff was also aware of the obvious risk of pitching without the protection of an L-screen, and he had the opportunity to observe the lighting in the facility as well as the color of the pitching backdrop prior to his accident. Bukowski testified at trial that despite his appreciation of the conditions, he decided “to go along with how the coach set up practice.” Defendants fulfilled their duty of making the “conditions as safe as they appear to be” (Morgan, 90 NY2d at 484), and there were no concealed risks unknown to Bukowski.

Even if Clarkson’s pitching backdrop and indoor lighting were considered less than optimal for baseball, they still did not constitute risks beyond those assumed by plaintiff. In Siegel v City of New York (90 NY2d 471, 488-489 [1997] [decided with Morgan v State of New York, supra]), we found that the plaintiff did not assume the risk of tripping on a torn tennis net, as the risk of playing with a torn net is not inherent to the sport of tennis. Likewise, in Owen v R.J.S. Safety Equip. (79 NY2d 967 [1992]), this Court found that a professional race car driver did not assume the risk of racing with a defective guard rail and faulty track design, which were risks that did not “inhere in the sport” of racing (id. at 970). There is a distinction between accidents resulting from defective sporting equipment and those resulting from suboptimal playing conditions. In the present case, the risks of pitching in an indoor facility without a protective screen were inherent to the sport of baseball and readily apparent to plaintiff. There was expert testimony at trial that multicolored pitching backdrops were common in many college baseball practice facilities, since resources had to be shared with other sports teams. Furthermore, fans sitting behind home plate commonly wear white or multicolored shirts; it is only the batter that gets the benefit of a dark background to see the pitched ball, not the pitcher. Therefore, the conditions in the indoor facility did not create “a dangerous condition over and above the usual dangers that are inherent in the sport” (Morgan, 90 NY2d at 485 [internal quotation marks and citation omitted]).

Tellingly, plaintiff does not assert that the Clarkson coaching staff violated any established safety protocol or the NCAA Rulebook by holding their indoor pitching practices without an L-screen or a dark backdrop. Bukowski’s reliance on Zmitrowitz v Roman Catholic Diocese of Syracuse (274 AD2d 613, 614 [2000]) and Baker v Briarcliff School Dist. (205 AD2d 652, 653 [1994]) is misplaced because both cases involved coaches who allegedly failed to enforce established safety standards. The only mention in the NCAA Rulebook of an L-screen was that one must be available to a visiting team for batting practice.

As this Court stated in Trupia v Lake George Cent. School Dist., sporting activities possess “enormous social value” but also “significantly heightened risks” (14 NY3d 392, 395 [2010]). The doctrine of assumption of risk “facilitates] free and vigorous participation in athletic activities” (Trupia, 14 NY3d at 395, quoting Benitez v New York City Bd. of Educ., 73 NY2d 650, 657 [1989]) and shields college athletics from potentially crushing liability. Clarkson University, a college located in upstate New York, should be able to allow its sports teams to practice indoors during the cold winter months without fear of liability for inability to replicate the ideal conditions of the outdoor spring season. Plaintiffs injuries are simply the result of a “luckless accident arising from . . . vigorous voluntary participation in competitive . . . athletics” (Benitez, 73 NY2d at 659).

Considering the facts in the light most favorable to the plaintiff, there was insufficient evidence from which a jury could have concluded that plaintiff faced an unassumed, concealed, or enhanced risk, even though it was his first time pitching live in the cage.

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

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order affirmed, with costs.

       An L-screen is a net strung on a thin, metal frame shaped like a block L that protects pitchers from balls that are batted back at them.


author: Ciparick, J.

text:
    [971 NE2d 358, 948 NYS2d 228]
    The People of the State of New York, Respondent, v Ledarrius Wright, Appellant.
    Argued May 1, 2012;
    decided June 5, 2012

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Barbara Zolot and Robert S. Dean of counsel), for appellant.
    I. Because the People’s theory of the case and the trial evidence established that appellant’s purpose in possessing the weapon was to commit the interrelated, ensuing substantive offense, the offenses of second degree weapon possession and first degree murder were committed through the single act of the shooting, requiring the imposition of concurrent sentences under Penal Law § 70.25 (2). (People v Brown, 80 NY2d 361; People v Hamilton, 4 NY3d 654; People v Sturkey, 77 NY2d 979; People v Walsh, 44 NY2d 631; People v Salcedo, 92 NY2d 1019; People v Frazier, 16 NY3d 36; People v McKnight, 16 NY3d 43; People v Battles, 16 NY3d 54; People v Okafore, 72 NY2d 81; People v Laureano, 87 NY2d 640.) II. Appellant was denied his due process right to a fair trial by the prosecutor’s summation, in which the prosecutor denigrated defense counsel and appellant’s defense and inflamed the jury. (People v Bailey, 58 NY2d 272; People v Zimmer, 51 NY2d 390; People v Ashwal, 39 NY2d 105; People v Gordon, 50 AD3d 821; People v Pagan, 2 AD3d 879; People v LaPorte, 306 AD2d 93; People v Jackson, 143 AD2d 363; People v Ortiz, 125 AD2d 502; People v Burnside, 52 AD2d 626; People v Bhupsingh, 297 AD2d 386.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Christopher P. Marinetti and Eleanor J. Ostrow of counsel), for respondent.
    I. Defendant’s consecutive sentences are legal. (Blockburger v United States, 284 US 299; People v Day, 73 NY2d 208; People v Laureano, 87 NY2d 640; People v McKnight, 16 NY3d 43; People v Taveras, 12 NY3d 21; People v Battles, 16 NY3d 54; People v Frazier, 16 NY3d 36; People v Ramirez, 89 NY2d 444; People v Parks, 95 NY2d 811; People v Arroyo, 93 NY2d 990.) II. The People’s summation was a fair response to the defense. (People v Balls, 69 NY2d 641; People v Starks, 70 AD3d 585; People v Colon, 46 AD3d 260; People v Riback, 57 AD3d 1209, 13 NY3d 416; People v Galloway, 54 NY2d 396; People v Marks, 6 NY2d 67; People v Halm, 81 NY2d 819; People v Crimmins, 36 NY2d 230; People v Love, 57 NY2d 998; People v Davis, 58 NY2d 1102.)
   OPINION OF THE COURT

Ciparick, J.

The question presented is whether Penal Law § 70.25 (2) precludes the imposition of consecutive sentences for defendant’s convictions of murder in the first degree and criminal possession of a weapon in the second degree. We hold that under the circumstances presented here, because the offense of possessing a gun with unlawful intent was only completed upon defendant’s commission of the ensuing substantive crime of shooting the victims, consecutive sentencing is prohibited.

In the early morning hours of September 5, 2005 on West 133rd Street in Manhattan, after a night of escalating altercations between two groups—one including defendant Ledarrius Wright and the other including Doneil Ambrister and Yvette Duncan—defendant pulled out a gun and shot Ambrister and Duncan. Both victims were killed. Several eyewitnesses named defendant as the assailant and, after nearly two years in hiding, defendant was apprehended in 2007.

A New York County grand jury charged defendant with two counts of murder in the first degree (Penal Law § 125.27 [1] [a] [viii]), two counts of murder in the second degree (Penal Law § 125.25 [1]) and one count each of criminal possession of a weapon in the second degree (Penal Law § 265.03 [2]) and criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]). Supreme Court dismissed the latter charge. Along with the charge of second degree criminal possession of a weapon, the court submitted the murder one counts to the jury with the murder two counts in the alternative. As relevant to the weapon possession charge, the prosecutor argued in summation: “[Defendant] should be convicted [of second degree criminal possession of a weapon] because he had a loaded and operable gun that he fired at others . . . There’s no doubt about his intent since he actually did use the gun unlawfully against two others.”

The jury convicted defendant of one count of first degree murder for the intentional killing of Ambrister, accompanied by the killing of Duncan with the intent to cause her serious injury or death, and second degree criminal possession of a weapon. It acquitted defendant of the other charges based on the intentional killing of Duncan. Supreme Court sentenced defendant to consecutive prison terms of 25 years to life for first degree murder and 15 years for possession of a weapon, for an aggregate term of 40 years to life. The court’s theory for imposing consecutive sentences was that defendant’s “intention to possess the weapon to bring out on the street to use it both against Doneil Ambrister and also against Yvette Duncan is separate and distinct from the intentional killing of Doneil Ambrister.”

Defendant appealed, arguing that the court erred in imposing consecutive sentences because the charge of possession of a weapon was not unrelated to the killings and “the People did not allege or prove that defendant possessed a gun with a separate intent to use it unlawfully against another.”

The Appellate Division, with one Justice dissenting, affirmed the sentence (People v Wright, 87 AD3d 229 [1st Dept 2011]). The majority held that “[b]ecause there is no overlap of statutory elements in the crimes committed by the defendant, the imposition of consecutive sentences was lawful” (id. at 230). The court impugned defendant’s reliance on our decision in People v Hamilton (4 NY3d 654 [2005]), which held that consecutive sentencing on a second degree weapon possession charge required proof of an intent unrelated to the intent to shoot the victims (see id. at 658), asserting that our more recent decisions such as People v McKnight (16 NY3d 43 [2010]) and People v Frazier (16 NY3d 36 [2010]) were a “sub silentio rejection” of that case (Wright, 87 AD3d at 232).

Declaring Hamilton “indistinguishable and dispositive of the sentencing issue” (id. at 235), however, the dissenting Justice would have modified Supreme Court’s order to the extent of ordering that the sentences run concurrently. The dissent opined that “[i]n the absence of proof of a distinct intent to use the gun unlawfully [apart from the shootings], the weapon count overlapped the charges arising out of the shooting of the two victims” (id. at 236). The dissenting Justice granted defendant leave to appeal (2011 NY Slip Op 78815[U] [2011]), and we now modify to direct that the sentences run concurrently.

Under Penal Law § 70.25 (2), a court must impose concurrent sentences “for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other.” “Thus, sentences imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” (People v Laureano, 87 NY2d 640, 643 [1996]). “The defendant benefits if either prong is present, and the prosecution’s burden is to countermand both prongs” (People v Day, 73 NY2d 208, 211 [1989]).

An analysis of whether concurrent sentences are required begins with an examination of “the statutory definitions of the crimes for which defendant has been convicted” (Laureano, 87 NY2d at 643). In Laureano, we explained:

“Because both prongs of Penal Law § 70.25 (2) refer to the ‘act or omission,’ that is, the ‘actus reus’ that constitutes the offense, the court must determine whether the actus reus element is, by definition, the same for both offenses (under the first prong of the statute), or if the actus reus for one offense is, by definition, a material element of the second offense (under the second prong). If it is neither, then the People have satisfied their obligation of showing that concurrent sentences are not required. If the statutory elements do overlap under either prong of the statute, the People may yet establish the legality of consecutive sentencing by showing that the ‘acts or omissions’ committed by defendant were separate and distinct acts” (id. at 643 [citations omitted]).

In People v McKnight (16 NY3d 43 [2010]), we applied the Laureano framework to assess the legality of consecutive sentencing in the context of an attempted crime. The defendant and another gunman had fired a total of 10 shots at two victims—Smith and Lingard—with two bullets striking and killing Smith (see id. at 45). Lingard was shot three times but survived (see id.). The defendant, convicted of first degree murder and second degree attempted murder, was sentenced respectively to consecutive terms of 25 years to life and 20 years with five years postrelease supervision (see id. at 46). In upholding defendant’s consecutive sentences, we explained that

“[t]he actus reus of the murder of Smith was the firing of the two shots that caused the death of a third person [i.e., Smith]; and the actus reus of the attempted murder of Lingard was the firing of the eight other shots, which either hit no one or hit Lingard” (id. at 48 [internal brackets, quotation marks and ellipsis omitted]).

We reasoned that

“ [a]ll 10 shots were discharged with the intent to cause Lingard’s death, but ‘ “[t]he test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent.” ’ Thus, the actus reus of Smith’s murder is not the same as the actus reus underlying Lingard’s attempted murder under the first prong; and, under the second prong, the actus reus of Smith’s murder is not a material element of the actus reus of Lingard’s attempted murder because more than the two shots that struck Smith were fired at Lingard” (id. at 49, quoting People v Frazier, 16 NY3d 36, 41 [2010]).

Similarly, in Frazier, decided the same day as McKnight, we found it within the sentencing court’s discretion to impose consecutive sentences for the defendant’s burglary and grand larceny convictions because the two “statutes do not contain the same actus reus” (16 NY3d at 41). As the “crimes at issue [were] separate offenses that were committed through separate acts,” and neither offense was “a material element of the other,” we concluded that concurrent sentencing was not required (id.). Neither McKnight nor Frazier constituted a “sub silentio rejection” of Hamilton, as stated by the majority below (Wright, 87 AD3d at 232), as neither case involved the propriety of consecutive sentencing where one of the crimes is a weapon possession offense.

In our case law addressing the propriety of consecutive sentencing in the context of weapon possession offenses we have employed a different framework that appropriately reflects the heightened level of integration between the possession and the ensuing substantive crime for which the weapon was used (see Hamilton, 4 NY3d at 658-659; People v Salcedo, 92 NY2d 1019, 1021-1022 [1998]; see also People v Brown, 80 NY2d 361, 364-365 [1992] [discussing “precedents dealing with weapons possession and interrelated, ensuing substantive crimes,” where we have applied a “narrow rationale and statutory interpretation” to preclude consecutive sentencing]). In such cases, to determine whether a single act constituted both offenses under prong one of Penal Law § 70.25 (2), we have looked to when the crime of possession—necessarily encompassing both actus reus and mens rea elements—was completed (see Salcedo, 92 NY2d at 1022). Only where the act of possession is accomplished before the commission of the ensuing crime and with a mental state that both satisfies the statutory mens rea element and is discrete from that of the underlying crime may consecutive sentences be imposed (see id.; see also Hamilton, 4 NY3d at 658).

In Salcedo, for example, we upheld the defendant’s consecutive sentences for murder and second degree weapon possession, concluding that the “act of the possessory crime, though continuing, [was] distinct for consecutive sentencing purposes from the discrete act of shooting the victim” (id. at 1021-1022 [internal quotation marks omitted]). We observed that “[t]he People’s theory of the case, which [was] supported by the evidence, was that [the] defendant initially possessed the weapon with the intent to force [the victim] to leave with him,” thereby completing the crime of second degree weapon possession. However, “[i]t was not until [the victim] continuously and adamantly refused [the defendant’s] repeated demands that [the] defendant turned the gun directly against her and killed her[,]” an “act . . . accompanied by the specific intent to cause [her] death” (id. at 1022). Under those circumstances, “[w]e [could not] say as a matter of law that the possession and actual use of the gun were so integrated that they constituted a single act for consecutive sentencing purposes” (id.).

Conversely, in Hamilton, we vacated the defendant’s consecutive sentences for his convictions of manslaughter and second degree weapon possession, finding that the People failed “to establish that he possessed the pistol with a purpose unrelated to his intent to shoot” the victims (4 NY3d at 658). As there was “no allegation that the weapon count referred to a different pistol or a different event . . . [t]he weapon count thus overlapped with the manslaughter and assault counts, and there was no proof of a separate intent to use the gun unlawfully” (id.).

The Appellate Division majority suggested that Hamilton is inconsistent with the rule established by Laureano and other cases to the effect that the availability of consecutive sentencing is determined by examining whether the crimes involved a single act (or ‘actus reus’) rather than a single intent (see Wright, 87 AD3d at 231-232). But this overlooks the special problems presented when Penal Law § 70.25 (2) is applied to possessory offenses. The ‘act’ of possession is, by its nature, continuous; it may go on for hours or days. To decide when one act of possession ends and another begins, in applying a statute that prohibits possession with a particular intent, we look to the point at which the relevant intent changes. Thus in applying such a statute it is necessary to consider intent in order to identify the act or acts that constitute the crime. Hamilton is therefore correct and, as found by the dissent below, “on all fours” with the instant case (id. at 236).

Here, defendant was convicted of second degree weapon possession and first degree murder. The majority below determined that “[t]he criminal weapon-possession offense is a possessory act, the actus reus of which is complete once the defendant has ‘dominion and control of a weapon’ ” (id. at 235). However, “unlike the third degree possession statute . . . which defines the crime solely in terms of dominion and control, the statute defining second degree possession contains a specific intent element as well” (People v Okafore, 72 NY2d 81, 87 [1988]), to wit, that the defendant possessed a weapon with the intent to use it unlawfully against another person (see Penal Law § 265.03). At trial the People theorized that defendant possessed the gun with unlawful intent, because he “actually did use the gun unlawfully against two others” by shooting Ambrister and Duncan. As in Hamilton, the People neither alleged nor proved that defendant’s possession was marked by an unlawful intent separate and distinct from his intent to shoot the victims. Under the facts presented here, because the crime of second degree weapon possession was completed only upon the shootings, Supreme Court erred in imposing consecutive sentences.

We have considered plaintiffs alternative argument regarding the prosecutor’s remarks during summation and find it to be without merit.

Accordingly, the order of the Appellate Division should be modified such that defendant’s sentences run concurrently and, as so modified, affirmed.

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

Order modified, etc.

       Murder in the first degree is committed when
      “[w]ith intent to cause the death of another person, [the defendant] causes the death of such person or of a third person . . . and ... as part of the same criminal transaction, the defendant, with intent to cause serious physical injury to or the death of an additional person or persons, causes the death of an additional person or persons” (Penal Law § 125.27 [1] [a] [viii]).
      Criminal possession of a weapon in the second degree is committed when a person “possesses a loaded firearm” “with intent to use the same unlawfully against another” (Penal Law § 265.03 [1] [b]).


author: Graffeo, J. Smith, J. (dissenting).

text:
    [971 NE2d 347, 948 NYS2d 217]
    The People of the State of New York, Respondent, v Jorge Pagan, Appellant.
    Argued April 26, 2012;
    decided June 5, 2012

      POINTS OF COUNSEL

      Legal Aid Society, New York City (Steven B. Wasserman and Steven Banks of counsel), for appellant.
    I. The Court has jurisdiction to hear this appeal. (People v Hernandez, 98 NY2d 8; People v Stevens, 91 NY2d 270; People v Hale, 93 NY2d 454; People v Nieves, 2 NY3d 310.) II. The sentencing court exceeded its statutory authority to order searches of a probationer’s home, by subjecting a compliant probationer to routine searches of his home during home visits. (People v Hale, 93 NY2d 454; Griffin v Wisconsin, 483 US 868; United States v Newton, 369 F3d 659; People v Jackson, 46 NY2d 171; Morrissey v Brewer, 408 US 471; People v Suttell, 109 AD2d 249; People v Brown, 114 AD2d 1035; People v Hutchinson, 4 Misc 3d 1005[A], 2004 NY Slip Op 50720[U]; People v Huntley, 43 NY2d 175; District of Columbia v Heller, 554 US 570.)

      Michael A. Cardozo, Corporation Counsel, New York City (Karen Griffin, Leonard Koerner and Stephen J. McGrath of counsel), for respondent.
    The order of Supreme Court enlarging the conditions of defendant’s sentence to authorize home searches in connection with home visits by the Department of Probation was properly affirmed by the Appellate Division. (People v Hale, 93 NY2d 454; People v Rodney E., 77 NY2d 672; Griffin v Wisconsin, 483 US 868; People v McNair, 87 NY2d 772; People v Jackson, 46 NY2d 171; United States v Germosen, 139 F3d 120, 525 US 1083.)
   OPINION OF THE COURT

Graffeo, J.

The threshold question before us is whether a defendant can appeal from an order modifying the conditions of a sentence of probation. We conclude that such an appeal is not authorized by the Criminal Procedure Law. Instead, judicial review must be sought in a CPLR article 78 proceeding.

Defendant Jorge Pagan pleaded guilty to one count of criminal possession of a weapon in the third degree. Pursuant to a plea agreement, defendant was sentenced in June 2008 to six months in jail and five years of probation. More than three months later, the New York City Department of Probation applied to the court to enlarge the conditions of defendant’s probation under CPL 410.20 so as to authorize searches of defendant’s home during his probationary term. Defendant opposed the application, asserting that the court lacked the authority to modify the conditions of probation to include warrantless home searches.

In January 2009, Supreme Court granted the application to the extent of modifying the conditions of probation to permit the Department of Probation to conduct sporadic “knock and announce” searches of defendant’s home at reasonable hours when he was present. Without addressing appealability, a divided Appellate Division affirmed (76 AD3d 414 [1st Dept 2010]). One of the dissenting Justices granted defendant leave to appeal, and we now reverse.

It is well established that “[n]o appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute” (People v Dunn, 4 NY3d 495, 497 [2005] [internal quotation marks and citation omitted]; see also People v De Jesus, 54 NY2d 447, 449 [1981]). We have emphasized that criminal appeals are thereby “limited” (People v Bautista, 7 NY3d 838, 839 [2006]), and that “[c]ourts must construe clear and unambiguous statutes as enacted and may not resort to interpretative contrivances to broaden the scope and application of statutes. This is especially so in one of the most highly structured and highly particularized articles of procedure— appeals” (People v Hernandez, 98 NY2d 8, 10 [2002] [internal quotation marks and citation omitted]).

CPL article 450 governs the appealability of orders in criminal proceedings. Analysis begins with CPL 450.10, which “codifies a criminal defendant’s common-law right to appeal to an intermediate appellate court” (People v Ventura, 17 NY3d 675, 679 [2011]). As relevant to this case, CPL 450.10 (2) allows a defendant to appeal from a “sentence” as prescribed by CPL 450.30 (1). CPL 450.30 (1), in turn, provides that a defendant may appeal from a sentence on the basis that it is “invalid as a matter of law” or “harsh or excessive.”

Significantly, CPL 450.30 (3) further specifies that an appeal from a sentence pursuant to CPL 450.10 (2) can have only one of two meanings. First, an appeal lies from “the sentence originally imposed” (CPL 450.30 [3]). Alternatively, a defendant may appeal from “a resentence following an order vacating the original sentence” (id.). Hence, an appeal predicated on CPL 450.10 (2) that is not taken from either a sentence or a resentence must be dismissed (see De Jesus, 54 NY2d at 449).

In this case, the January 2009 order modifying the conditions of defendant’s sentence of probation does not fit either of these statutory categories. It was not the sentence originally imposed in June 2008. Nor did the court “vacat[e] the original sentence” and impose a resentence in January 2009. Rather, the court altered the conditions of probation pursuant to CPL 410.20 (1), which authorizes a court to “modify or enlarge the conditions of a sentence of probation.” Because the January 2009 modification order was not a “sentence” within the meaning of CPL 450.30 (3), there is no statutory basis for defendant to pursue an appeal.

Recognizing this obstacle, defendant would have us treat the January 2009 modification order as if it were a resentence even though the court never “vacat[ed] the original sentence” as required by CPL 450.30 (3). In contrast, the dissent views the modification to be “part of the original sentence” (dissenting op at 372). But, as we have indicated, we cannot apply a more expansive interpretation just because we think it is a good idea, “especially when an adequate legal remedy aside from a direct appeal [is] available” (Dunn, 4 NY3d at 497; see also People v Laing, 79 NY2d 166, 170-171 [1992]). Here, defendant could have brought a CPLR article 78 proceeding in the nature of prohibition to challenge the modification of the conditions of his sentence of probation on the ground that the court lacked the power to modify as it did (see Matter of Pirro v Angiolillo, 89 NY2d 351, 359 [1996]). Consequently, the proper vehicle to have challenged Supreme Court’s January 2009 modification order was an article 78 proceeding, not a direct appeal.

Finally, because the Appellate Division, like us, lacked jurisdiction to entertain defendant’s appeal, we remit to that Court for dismissal of the appeal (see People v Joseph R., 17 NY3d 767, 768 [2011]; People v Jian Jing Huang, 1 NY3d 532, 533-534 [2003]).

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that Court, with directions to dismiss the appeal taken to that Court.

Smith, J. (dissenting).

The majority has given a literalistic reading to CPL 450.30 (3), producing a convoluted rule the Legislature could not possibly have intended: A defendant can appeal from his sentence when it is first imposed, and if it is vacated he can appeal from a resentence; but if, without being vacated, it is modified in a way unfavorable to him, he has no right to appeal. No party urged this reading of the statute on the court; and the majority suggests no reason why its result makes sense, but evidently believes that result to be compelled by the statutory text. I disagree.

The language in the statute that the majority finds decisive is: “An appeal from a sentence . . . means an appeal from either the sentence originally imposed or from a resentence following an order vacating the original sentence.” This case involves an order modifying but not vacating the original sentence and therefore, the majority says, falls between the two possibilities, into a no-man’s land the Legislature failed to provide for. The statute does not have to be read so mechanically.

The Legislature obviously thought, when it enacted the statute, that it had accounted for all the situations in which an appeal from a sentence would be necessary: to effectuate the Legislature’s intention, we should read “the sentence originally imposed” to mean not only the sentence in its original form, but also in the modified form that results from a later order. Since the original sentence has not been vacated, the modified sentence is still “the sentence originally imposed.” To the extent that a modification is unfavorable to the defendant, that part of the original sentence should be deemed “imposed” on the date of the modification.

I do not claim that mine is the only possible, or the most obvious, way to read the words of the statute. If I had any doubt about the Legislature’s intention, I might acquiesce in the majority’s more literal reading. But my reading is not linguistically impossible; and it is, I think, impossible to believe that the Legislature meant to deprive a defendant of any right of appeal when, like defendant here, he finds an unfavorable condition belatedly attached to his sentence.

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

Order reversed, etc.