author: Pigott, J.

text:
    [981 NE2d 772, 958 NYS2d 71]
    In the Matter of State of New York, Respondent, v Myron P., Appellant.
    Argued October 18, 2012;
    decided November 20, 2012

      POINTS OF COUNSEL

      Morrison & Foerster LLP, New York City (Charles L. Kerr, Mark David McPherson, Robert J. Baehr and Natalie R. Ram of the District of Columbia bar, admitted pro hac vice, of counsel), for appellant.
    I. Myron E properly preserved his constitutional claims below. (Williams v City of New York, 101 AD2d 835; Barry v Manglass, 55 NY2d 803; Delaney v Philhern Realty Holding Corp., 280 NY 461; Arrieta v Shams Waterproofing, Inc., 76 AD3d 495; Baxstrom v Herold, 383 US 107.) II. The State deprived Myron E of equal protection by committing him to involuntary confinement pursuant to Mental Hygiene Law article 10. (Hernandez v Robles, 7 NY3d 338; Baxstrom v Herold, 383 US 107; Humphrey v Cady, 405 US 504; United States ex rel. Schuster v Herold, 410 F2d 1071; People v Lally, 19 NY2d 27; Kansas v Hendricks, 521 US 346; Foucha v Louisiana, 504 US 71; Addington v Texas, 441 US 418; San Antonio Independent School Dist. v Rodriguez, 411 US 1; Johnson v California, 543 US 499.) III. The State deprived Myron E of his constitutional right to a jury trial by committing him to involuntary confinement pursuant to Mental Hygiene Law article 10. (Matter of DES Mkt. Share Litig., 79 NY2d 299; Colon v Lisk, 153 NY 188; Sporza v German Sav. Bank, 192 NY 8; Matter of Robert C. v Wack, 167 Misc 2d 677; State of N.Y. ex rel. Harkavy v Consilvio, 7 NY3d 607; Hughes v County of Monroe, 147 NY 49; Matter of Richard H. v Consilvio, 6 AD3d 7; Matter of Daniel R. v Wack, 167 Misc 2d 74; Matter of Maureen A. v Wack, 153 Misc 2d 600.)

      Eric T. Schneiderman, Attorney General, Albany (Frank Brady, Barbara D. Underwood, Andrea Oser and Nancy A. Spiegel of counsel), for respondent.
    I. The appeal should be dismissed because respondent’s constitutional claims are not preserved for review by this Court. (Matter of Schulz v State of New York, 81 NY2d 336; Elezaj v Carlin Constr. Co., 89 NY2d 992; Feinberg v Saks & Co., 56 NY2d 206; Matter of Shannon B., 70 NY2d 458; State of N.Y. ex rel. Harkavy v Consilvio, 7 NY3d 607; Brown v City of New York, 60 NY2d 893.) II. Respondent’s jury claim fails because Mental Hygiene Law article 10 provided respondent with the jury right guaranteed by the State Constitution. (Jones v United States, 463 US 354; Addington v Texas, 441 US 418; Kansas v Crane, 534 US 407; Kansas v Hendricks, 521 US 346; Matter of State of New York v Enrique T., 93 AD3d 158, 18 NY3d 976; Matter of David B., 97 NY2d 267; Matter of DES Mkt. Share Litig., 79 NY2d 299; Motor Veh. Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175; Colon v Lisk, 153 NY 188;
      Sporza v German Sav. Bank, 192 NY 8.) III. Respondent’s equal protection claim fails because individuals considered under Mental Hygiene Law articles 9 and 10 are not similarly situated and can rationally be treated differently in any event. (Matter of Walton v New York State Dept. of Correctional Servs., 13 NY3d 475; Cleburne v Cleburne Living Center, Inc., 473 US 432; Port Jefferson Health Care Facility v Wing, 94 NY2d 284; Nordlinger v Hahn, 505 US 1; Montgomery v Daniels, 38 NY2d 41; Hernandez v Robles, 7 NY3d 338; Affronti v Crosson, 95 NY2d 713; Kimel v Florida Bd. of Regents, 528 US 62; New York City Health & Hosps. Corp. v Brian H., 51 AD3d 412; Matter of Scopes, 59 AD2d 203.)
   OPINION OF THE COURT

Pigott, J.

In this proceeding pursuant to Mental Hygiene Law article 10, respondent, Myron P, contends that he was entitled to a jury trial on the determination of confinement. We hold that he was not and therefore affirm.

On February 13, 2001, respondent was convicted of attempted rape in the first degree and sentenced to six years’ imprisonment with 30 months of parole supervision. Prior to his release, in October 2006, he was transferred from prison to the Sex Offender Treatment Program (SOTP), at Central New York Psychiatric Center (CNYPC) pursuant to Mental Hygiene Law article 9. In November 2006, he requested a hearing to contest his admission. Thereafter, in December 2006, CNYPC made an application to Supreme Court, pursuant to Mental Hygiene Law article 9, for an order authorizing CNYPC to retain respondent involuntarily for a period not to exceed six months.

In January 2008, while the article 9 proceeding was pending, the Attorney General, on the State’s behalf, filed an article 10 petition seeking a determination that respondent is a detained sex offender requiring civil management and involuntary confinement. Thereafter, respondent applied for an order staying the commencement of the article 10 trial until the article 9 proceeding was completed, arguing that while he was a “detained sex offender” under Mental Hygiene Law § 10.03 (g) (5), the court was nevertheless required to determine whether he met the standard for “mental illness” under article 9 before proceeding under article 10. Respondent maintained that if the “article 9 admission is held to be invalid or [respondent] does not meet the criteria for involuntary admission to a psychiatric hospital, then there is no jurisdiction to commence the article 10 proceeding” and “[the article 10] proceeding must be dismissed with prejudice.”

Respondent’s desire to proceed under article 9 was also rooted in his argument that, under Mental Hygiene Law § 9.35 he would be entitled to a jury trial on “the question of mental illness and the need for retention,” but under article 10, the question whether his condition “requires inpatient confinement in a secure facility” is decided solely by a judge. He maintained that “it is a violation of [his] constitutional rights to be compelled to go forward to an article 10 jury trial until such time as the issues raised in my MHL article 9 demand for a hearing have been addressed.”

Relying on our decision in State of N.Y. ex rel. Harkavy v Consilvio (8 NY3d 645 [2007]), Supreme Court denied a stay, holding that

“the issues pertaining to respondent’s involuntary commitment to the SOTP at CNYPC under MHL Article 9 must be resolved in an appropriate commitment hearing held in accordance with the procedures set forth in Article 10 of the MHL. As such, respondent’s MHL Article 9 claims are rendered moot and/or academic as the basis for respondent’s commitment is no longer MHL Article 9, but MHL Article 10.”

Thereafter, a trial was held pursuant to article 10 after which a jury found that respondent was a detained sex offender who suffered from a mental abnormality within the meaning of that statute. At a later hearing, Supreme Court, acting without a jury, concluded that clear and convincing evidence in the record established that respondent was a dangerous sex offender requiring confinement, and committed him to a secure facility.

Respondent appealed, arguing that the jury’s verdict that he suffered from a mental abnormality was not supported by legally sufficient evidence; and that Mental Hygiene Law article 10 improperly deprived him of his right to a jury trial under the United States and New York State Constitutions on the issue of whether he should be involuntarily committed to a secure facility.

The Appellate Division unanimously affirmed (86 AD3d 26 [3d Dept 2011]), finding that legally sufficient evidence supported the jury’s verdict. It further held that respondent was not deprived of his constitutional right to a jury trial on the issue of confinement. It first concluded that because respondent “was provided [with] a jury trial on the initial question of mental abnormality, ... his constitutional right to a jury trial” was satisfied (id. at 30). The court similarly held that respondent’s equal protection rights were not violated, concluding that respondents under article 10 were not similarly situated to those under article 9 (id.). Respondent appealed as of right to this Court pursuant to CPLR 5601 (b) (1).

As an initial matter, we conclude that respondent adequately preserved his constitutional arguments in his motion to stay the article 10 proceeding. We nevertheless disagree with respondent on the merits.

Respondent first contends that the State violated his rights under the Equal Protection Clause of the Federal and State Constitutions because the State affords other similarly situated individuals the right to have a jury determine the issue of confinement, while article 10 does not. Specifically, he points to the fact that individuals subject to article 9 are provided the right to have a jury determine both whether the individual is mentally ill and whether the individual should be confined to receive involuntary care (see Mental Hygiene Law § 9.35).

The Equal Protection Clause in the New York State Constitution states that “No person shall be denied the equal protection of the laws of this state or any subdivision thereof’ (NY Const, art I, § 11). The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” In essence, the constitutional guarantee of equal protection is “that all persons similarly situated must be treated alike” (Bower Assoc. v Town of Pleasant Val., 2 NY3d 617, 630 [2004]). Thus, a

“violation of equal protection arises where first, a person (compared with others similarly situated) is selectively treated and second, such treatment is based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person” (id. at 631).

It is clear that article 10 respondents are not similarly situated to those subject to proceedings under article 9. Indeed, in State of N.Y. ex rel. Harkavy v Consilvio (7 NY3d 607 [2006]) we held that the State could not apply article 9 of the Mental Hygiene Law to sex offenders who were serving a sentence when that process began. After that decision the legislature enacted article 10, acknowledging that “sex offenders in need of civil commitment are a different population from traditional mental health patients, who have different treatment needs and particular vulnerabilities” and that such civil commitment “should be implemented in ways that do not endanger, stigmatize, or divert needed treatment resources away from such traditional mental health patients” (Mental Hygiene Law § 10.01 [g]).

Article 10 respondents cannot be classified as a subset of article 9 respondents because they are a different category of individuals in terms of the nature of their mental disabilities, their treatment needs and the public safety concerns they present. The individuals targeted under article 9 and article 10 proceedings are distinct.

In any event, because article 9 and article 10 involve two different categories of persons, with different treatment needs, it was appropriate for the legislature to treat them differently. The State correctly notes that the confinement decision under article 9 is quite different than that of article 10. Article 10 has two dispositional choices—either confinement or strict and intensive supervision and treatment (see Mental Hygiene Law § 10.07 [f])—while under article 9 confinement is the only available disposition. The determination as to the level of danger an individual poses to public safety is inextricably tied to the nature of the treatment and supervision options available. This difference supports the legislature’s decision that the confinement determination under article 10 is better suited for the court rather than a jury.

Nor was respondent denied his state constitutional right to a trial by jury. Article I, § 2 of the New York Constitution provides that “[tjrial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever.” “The express language of this provision exhorts us to consider as an historical matter the types of actions to which the right to a jury trial has traditionally attached” (Matter of DES Mkt. Share Litig., 79 NY2d 299, 304 [1992]). We have held that a jury trial is guaranteed: “(1) in all those cases to which it would have traditionally been afforded under the common law before 1777, and (2) in all cases to which the Legislature by statute extended a right to a jury trial between 1777 and 1894” (id.). “In addition, it has been held that the right to a jury trial is not strictly limited to those instances in which it was actually used in 1894, but also extends to new cases that are analogous to those traditionally tried by a jury” (id. at 305).

Respondent asserts that historical civil commitment statutes on their face provided a right to a jury trial regarding questions of a person’s mental illness and need for confinement. Thus, he argues that under the law as it existed at the time of the enactment of the New York State Constitution in 1894, a jury was required to decide both mental illness and the need for confinement, as both issues were considered as part of the same overarching inquiry. However in those historic civil commitment proceedings, once the jury made a finding of mental illness, the judge was statutorily mandated to confine the individual. This continued until 1972, when the legislature amended the civil commitment statute (article 9) to direct juries to consider both mental illness and the “need for retention” in a mental facility (see L 1972, ch 251, § 31.25). This change was wholly for the benefit of the individual subject to civil commitment.

The legislature chose not to assign to a jury the article 10 process which makes inquiry of whether the individual’s dangerousness necessarily requires retention or the individual could safely be treated and/or supervised on an outpatient basis. When the legislature assigned that new, purely remedial determination to a judge rather than a jury, it did not violate respondent’s state constitutional right to a jury trial.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

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

Order affirmed, without costs.


source: Caselaw Access Project

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

license: Public Domain

text:
    [981 NE2d 777, 958 NYS2d 76]
    In the Matter of Richard Lazzari, Respondent, v Town of Eastchester et al., Appellants, and Paula Redd Zeman, as Commissioner of the Westchester County Department of Human Resources, et al., Respondents.
    Argued October 10, 2012;
    decided November 27, 2012

      POINTS OF COUNSEL

      Law Office of Vincent Toomey, Lake Success (Vincent Toomey and Christine A. Gaeta of counsel), for appellants.
    I. Civil Service Law § 71 requires that certification by a medical officer of fitness for duty be provided to the municipality subject to the reinstatement order. (Matter of Allen v Howe, 84 NY2d 665; Matter of Sarto v Whittemore, 43 AD3d 1343; Matter of City of New York v New York City Civ. Serv. Commn., 6 NY3d 855;
      Greuling v Breakey, 56 AD2d 540; St. Clare v Cattani, 128 AD2d 766; Matter of Dutchess County Dept. of Social Servs. v Day, 96 NY2d 149; Matter of M. Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75; Yatauro v Mangano, 17 NY3d 420; Matter of Washington Post Co. v New York State Ins. Dept, 61 NY2d 557; Matter of Fink v Lefkowitz, 47 NY2d 567.) II. The Town of Eastchester was not required to reinstate Richard Lazzari or otherwise challenge Westchester County Department of Human Resources’ actions since the Department of Human Resources failed to comply with Civil Service Law § 71 or take enforcement action against the Town. (Matter of Stitt v McMahon, 244 AD2d 811; Matter of Diaz v New York State Off. of Mental Health, 188 AD2d 903.) III. This matter should have been dismissed or remanded to the Westchester County Department of Human Resources for a new determination and certification of Richard Lazzari’s fitness to return to duty under Civil Service Law § 71. (Matter of Steen v Governor’s Off. of Empl. Relations, 1 AD3d 644; Matter of Mandle v Brown, 4 AD2d 283; Matter of Skorin-Kapov v State Univ. of N.Y. at Stony Brook, 281 AD2d 632, 96 NY2d 720; Matter of Ronga v Klein, 23 Misc 3d 1103[A], 2009 NY Slip Op 50563[U]; Greystone Mgt. Corp. v Conciliation & Appeals Bd. of City of N.Y., 94 AD2d 614, 62 NY2d 763; Matter of Rocco v Board of Trustees, Police Pension Fund, Art. II, 98 AD2d 609, 62 NY2d 803; Burke’s Auto Body v Ameruso, 113 AD2d 198; Matter of Hordes v McGoldrick, 282 App Div 743.) IV The lower courts erred in determining that an employee who was lawfully terminated under Civil Service Law § 71 is entitled to back pay under Civil Service Law § 77, which applies only in cases of unlawful termination. (Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO v Brookhaven-Comsewogue Union Free School Dist., 87 NY2d 868; Matter of Sterling v Levitt, 168 AD2d 314, 77 NY2d 810; Matter of Ortiz v Lesser, 88 AD2d 1105; Matter of Mullane v McKenzie, 269 NY 369, 270 NY 563; Matter of Rotkiewicz v Department of Mental Hygiene of State of N.Y., 283 App Div 458; Matter of Sweeney v Donovan, 1 Misc 2d 125; Matter of City of Lackawanna [AFSCME, AFL-CIO Local Union No. 1205], 98 Misc 2d 712; Matter of Ranni v Berger, 52 AD2d 607, 39 NY2d 710; Matter of Brayer v Lapple, 52 AD2d 1034; Matter of Carnibucci v New York State Exec. Dept. Div. for Youth, 223 AD2d 843.) V The courts below erred in denying the Town of Eastchester’s motion for leave to seek discovery because this matter cannot be fully and fairly adjudicated without the production of certain materials and necessary documents. (Matter

      of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO v Port Washington Union Free School Dist., 16 Misc 3d 202; Matter of Yarbough v Franco, 95 NY2d 342; Allen v Crowell-Collier Publ. Co., 21 NY2d 403; Constantino v Dock’s Clam Bar & Pasta House, 60 AD3d 612; Zegarelli v Hughes, 3 NY3d 64; DiMichel v South Buffalo Ry. Co., 80 NY2d 184; Tai Tran v New Rochelle Hosp. Med. Ctr., 99 NY2d 383; Matter of Town of Pleasant Val. v New York State Bd. of Real Prop. Servs., 253 AD2d 8; Matter of Town of Wallkill v New York State Bd. of Real Prop. Servs., 274 AD2d 856, 95 NY2d 770; Rios v Donovan, 21 AD2d 409.)

      James M. Rose, White Plains, for Richard Lazzari, respondent.
    I. The Town of Eastchester’s point I is based upon an incorrect definition of certified, to whom a doctor must certify, and a misunderstanding of the applicable case law. (Matter of Estanluards v American Museum of Natural History, 53 AD3d 991; Matter of Sarto v Whittemore, 43 AD3d 1343; Matter of City of New York v New York City Civ. Serv. Commn., 6 NY3d 855; Matter of Yong-Myun Rho v Ambach, 74 NY2d 318; Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169.) II. Point II of the Town of Eastchester’s brief is premised upon the incorrect assumption that no certification exists. (Matter of Muzzillo v Mount Vernon Civ. Serv. Commn., 238 AD2d 425; Matter of Arnold v Erie County Med. Ctr. Corp., 59 AD3d 1074; Matter of Kaur v New York State Urban Dev. Corp., 15 NY3d 235; Matter of Vann v Callahan, 16 AD3d 849.) III. The argument made at point III of the Town of Eastchester’s brief is based upon the same faulty premise as point I and for that reason lacks merit, and is time-barred. (Matter of Steen v Governor’s Off. of Empl. Relations, 1 AD3d 644.) IV Richard Lazzari is entitled to be reinstated to his position with full back pay and benefits. (Matter of Greiner v Greene County Dept. of Fire Prevention & Control, 188 AD2d 880; Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO v Brookhaven-Comsewogue Union Free School Dist., 87 NY2d 868; Matter of Department of Personnel of City of N.Y. v New York City Civ. Serv. Commn., 169 AD2d 597; Jones v City of Buffalo, 178 NY 45; Matter of Carnibucci v New York State Exec. Dept. Div. for Youth, 223 AD2d 843; Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO [State of New York], 273 AD2d 668; Matter of Antonopoulou v Beame, 32 NY2d 126; Pauk v Board of Trustees of City Univ. of N.Y., 68 NY2d 702.) V The determination of the court below that discovery would be untimely and pointless and was barred by the statute of limitations was correct. (Matter of De Milio v

      Borghard, 55 NY2d 216; Matter of Queensborough Community Coll. of City Univ. of N.Y. v State Human Rights Appeal Bd., 41 NY2d 926; Zuley v Elizabeth Wende Breast Care, LLC, 82 AD3d 1673; People v Clark, 82 AD3d 1674.)

      Robert F. Meehan, County Attorney, White Plains (Thomas G. Gardiner and James Castro-Blanco of counsel), for Paula Redd Zeman and another, respondents.
    I. The medical officer’s certification of Richard Lazzari’s fitness to Westchester County satisfied the requirements of section 71 of the Civil Service Law and the correspondence of December 18, 2007 to the Town of Eastchester Supervisor was the final determination of the County. (Matter of City of New York v New York City Civ. Serv. Commn., 6 NY3d 855; Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436; Matter of Hughes v Doherty, 5 NY3d 100; Matter of Washington v Fischer, 85 AD3d 1484; Matter of Multari v Town of Stony Point, 99 AD2d 838; Matter of Estanluards v American Museum of Natural History, 53 AD3d 991; Matter of Sarto v Whittemore, 43 AD3d 1343; Matter of Stitt v McMahon, 244 AD2d 811; Matter of Grossman v McMahon, 261 AD2d 54; Matter of Sauer v Connelie, 71 AD2d 770.) II. The Supreme Court properly denied the Town of Eastchester’s motion seeking discovery of Westchester County’s independent medical evaluation.

      John A. Mancini, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae.
    I. The lower courts erred when they determined that something other than the examining physician’s certification of fitness satisfies the medical certification requirement of Civil Service Law § 71. II. Sound public policy should dictate that Westchester County’s independent medical report relied upon in ordering Richard Lazzari’s reinstatement should be released to the Town of Eastchester. (Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488; Matter of Snyder v Third Dept. Jud. Screening Comm., 18 AD3d 1100; Matter of Fink v Lefkowitz, 47 NY2d 567.)
   OPINION OF THE COURT

Chief Judge Lippman.

The Town of Eastchester and Westchester County have squabbled in and out of court for five years over whether the County’s Department of Human Resources was required to provide the Town with documentation of an employee’s fitness to resume work before the Town reinstated him to his position under Civil Service Law § 71. Without condoning the County’s conduct in this dispute, we hold that when a civil service commission or department directs a municipal employer to reinstate an employee pursuant to a medical officer’s determination of fitness under Civil Service Law § 71, the municipal employer must immediately reinstate the employee, and a challenge to such a determination must take the form of a CPLR article 78 petition.

In October 2006, Mr. Lazzari injured his neck, back, and both arms while performing his job duties. On previous occasions, he had injured his lower back, causing him to miss several days of work. Mr. Lazzari did not perform any work for the Town after suffering these most recent injuries.

Throughout Mr. Lazzari’s absence, he was periodically examined by the Town’s physician, at the Town’s request. Approximately one year after the latest injuries, the doctor reported that he “[could] not authorize [his] return to full duty ... if the employee will require continued ongoing treatment with prescription pain medications that were noted to me by Mr. Lazzari.” That month, at the Town’s request, Mr. Lazzari also underwent an independent medical examination by an orthopedic surgeon. After examining him, the surgeon reported that Mr. Lazzari “is currently not fit to perform the responsibilities of an assistant building inspector and it is unlikely that any dramatic change will allow him to return to this occupation in the near or distant future.”

Based upon these two medical reports, the Town Comptroller notified Mr. Lazzari that pursuant to Civil Service Law § 71, his employment with the Town would be terminated effective November 16, 2007. Mr. Lazzari was further advised that he possessed certain reinstatement rights under Civil Service Law § 71 and was provided with a copy of the statute.

Soon thereafter, based on the required procedure in Civil Service Law § 71, Mr. Lazzari requested and obtained a review of his medical condition by the Westchester County Department of Human Resources (DHR). DHR directed Mr. Lazzari to a physician selected by the department to make an independent determination as to whether Mr. Lazzari was medically able to perform the duties of his job.

On December 18, 2007, the Deputy Commissioner of DHR notified the Town Supervisor that it had completed Mr. Lazzari’s section 71 application for reinstatement as Assistant Building Inspector, including an independent medical evaluation to determine his fitness to perform the duties of that job. The Deputy Commissioner advised the Town that “[t]he examining physician has concluded in his written report provided to this department that Mr. Lazzari is able to perform [his job] duties” and “should be immediately restored to his position.”

In response, the Town Supervisor requested from DHR a copy of the medical report, claiming that “[i]n light of the apparently conflicting medical opinions, we are concerned about Mr. Lazzari’s safety and that the interests of the Town and its residents will be imperiled if [he] cannot effectively perform the essential functions of his position.” In response, the County, by its Deputy Commissioner of Human Resources, advised the Town that it would not provide a copy of the requested report and reiterated that the Town should immediately reinstate Mr. Lazzari to his job as Assistant Building Inspector.

The Town Supervisor again wrote to DHR asserting that the Town was entitled to the medical report. The Deputy County Attorney communicated to the Eastchester Town Attorney that nothing in Civil Service Law § 71 required DHR to disclose the medical report, but the very words of Civil Service Law § 71 directly and clearly mandated that the Town immediately reinstate Mr. Lazzari in accordance with the County’s direction.

In response, the Town’s Special Counsel for labor and employment law matters wrote to the Deputy County Attorney, admitting that Civil Service Law § 71 “does not specifically require the release of the [medical] report” but asking for the Civil Service Commission to articulate the evidentiary basis for its determination and to turn over the medical report to demonstrate that basis. The County continued its refusal to turn over any documentation to the Town.

The Town neither reinstated Mr. Lazzari, nor brought a Freedom of Information Law (FOIL) or article 78 proceeding against the County to procure the medical documentation and/or challenge the County’s determination under Civil Service Law § 71. Mr. Lazzari was forced to take the initiative, commencing this article 78 proceeding seeking to compel the Town to reinstate him. In August 2008, Supreme Court granted the petition and ordered the Town to reinstate Mr. Lazzari, reasoning that “[ignoring the mandate of Civil Service Law § 71 is not the appropriate mechanism for questioning his condition or challenging the determination of [DHR].” The Town appealed.

In May 2009, the Appellate Division reversed for failure to join DHR as a necessary party and remitted for determination with DHR’s participation (62 AD3d 1002 [2d Dept 2009]). Upon remittal to Supreme Court, the Town moved for discovery of the medical report. Supreme Court denied the Town’s motion in December 2009, explaining that “[t]o order the discovery requested by the Town would only serve to invite argument in an area not authorized by law.” The court reasoned that Civil Service Law § 71 does not provide for a challenge to the determination of the medical officer selected by the civil service commission or department and the only available remedy was for the Town to institute its own article 78 proceeding against DHR, which the Town failed to bring within the statutorily mandated time frame of four months. Thereafter, in an April 2010 judgment, the court granted the petition, reinstating Mr. Lazzari to his former position, this time also ordering the Town to compensate him with back pay in accordance with Civil Service Law § 77 calculated from December 18, 2007, the date of DHR’s initial letter directing reinstatement. The Court criticized the Town again, with the same words it used in its initial decision in 2008, stating that “[ignoring the mandate of Civil Service Law § 71 is not the appropriate mechanism for questioning his condition or challenging the determination of [DHR].” The Town appealed, still refusing to reinstate Mr. Lazzari.

On Mr. Lazzari’s second visit to the Appellate Division, more than two years later, the Court affirmed the judgment, concluding that Civil Service Law § 71 did not require DHR to provide the Town with medical certification or the underlying medical report (87 AD3d 534, 535 [2d Dept 2011]). In addition, the Appellate Division agreed that Mr. Lazzari was entitled to back pay, retroactive to December 18, 2007, pursuant to Civil Service Law § 77. We granted the Town leave to appeal and now affirm.

Civil Service Law § 71 states that an employee terminated for a job-related incident can apply for reinstatement if the disability should cease. The employee can apply to the civil service commission or department having jurisdiction over his last position “for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission” (Civil Service Law § 71). The employee “shall be reinstated” if “such medical officer shall certify that such person is physically and mentally fit to perform the duties” of the job (Civil Service Law § 71).

The Town argues that medical certification of fitness can only come from the examining physician and a mere statement by a non-doctor advising the municipal employer that the disabled employee has been found medically fit without the accompanying written medical certification and/or report does not satisfy Civil Service Law § 71. As the Appellate Division has recognized, it is the medical officer who certifies, and not the Civil Service Commission (see Matter of Sarto v Whittemore, 43 AD3d 1343 [4th Dept 2007] [holding that a local civil service commission who relied upon past medical records, rather than an independent medical examination, failed to comply with section 71 because the medical examiner, not the Commission, certifies fitness]).

Although Civil Service Law § 71 does not indicate to whom the certification must be made, read in context, it is clear that the certification is made to the Department of Human Resources acting as a civil service commission, the body that arranges for the examination and to whom the results of such an examination are reported. Indeed, the purpose of section 71 is to involve a neutral agency and a physician, independent of both the employee and the employer, with appropriate oversight. Accordingly, the letter from the Civil Service Commission, informing the Town that a medical officer had “certified” Mr. Lazzari fit to return to work, was sufficient under Civil Service Law § 71.

Nothing in the plain language of the statute suggests, much less requires, that a medical certification be in writing, or take any particular form. The Town attempts to invent such a requirement by pointing to other state and federal statutes and regulations regarding disability or fitness for duty that have been interpreted to require written medical certification from the examining physician consisting of the doctor’s signed medical report. However, the Town undermines its own argument. In each statute or regulation cited by the Town (i.e., the Workers’ Compensation Law, the Family and Medical Leave Act and the federal Department of Transportation’s Drug Testing Regulations), it has been provided that a certification is a signed document by a medical examiner, and the reasons for requiring such an executed writing are explicated in each provision. For example, in Workers’ Compensation Law § 13-a (4) (e), the certification is made so that it becomes “admissible medical evidence” at a hearing. The Legislature has included no such provision in Civil Service Law § 71.

The Town’s choice to ignore the County’s directive was also not an option contemplated by the Legislature. The Legislature intended for the determination of the medical officer to be final. There is no statutory construct for an administrative challenge, a hearing, or other means of protest, as both Supreme Court and the Appellate Division found. The Town has neither moved to obtain a copy of the medical officer’s report of fitness pursuant to FOIL, nor, as Supreme Court noted, had it attempted to obtain it in the course of a timely article 78 proceeding brought to challenge DHR’s directive as arbitrary and capricious.

The Town makes the untenable argument that because the medical report has been withheld from the Town in an arbitrary and capricious manner and in violation of section 71, the Town does not need to reinstate Mr. Lazzari. It also contends that without the certification, it does not yet have any obligation to challenge the County’s determination in an article 78 proceeding. The Town relies on Matter of Stitt v McMahon (244 AD2d 811 [3d Dept 1997]), in which the Third Department upheld the Superintendent of State Police’s refusal to reinstate an injured officer based upon the Superintendent’s determination that the officer was not fit for duty because there were conflicting medical reports about the officer’s medical fitness. The Town argues that this case is similar because it had two medical opinions about Lazzari which stated that he was unfit, and one conflicting medical opinion from the DHR to which the Town had no access.

This argument demonstrates the Town’s misunderstanding of its role with respect to Mr. Lazzari and the County. Stitt does not apply. The Town’s position is not analogous to that of the Superintendent of the State Police who, pursuant to law and regulation, “has wide discretion in all employment matters” (see Matter of Grossman v McMahon, 261 AD2d 54, 58 [3d Dept 1999]; Executive Law § 215 [3]; 9 NYCRR 488.1 [g]). This is not the case for the Town, a municipal employer, which does not have discretion regarding reinstatement determinations when a Civil Service Department, pursuant to Civil Service Law § 71, has determined that a medical official has certified that the employee is fit to return to work and orders reinstatement. Civil Service Law § 71 does not give the Town the responsibility or power to police the performance of the County’s statutorily mandated duties.

After five years of litigation, the County’s refusal to give the Town a copy of the medical report, and the Town’s refusal to ask for it under FOIL, remain unexplained. The County does not suggest that it would have any ground for rejecting a FOIL request. It seems that a bit more common sense and less stubbornness on either side could have avoided years of trouble and expense. Since the parties have chosen to litigate, however, we must resolve the dispute, and we do so in the County’s favor.

On the issue of back pay, Civil Service Law § 77 provides that an “employee who is removed . . . and who thereafter is restored to such position by order of the supreme court, shall be entitled to . . . the salary or compensation which he would have been entitled by law to have received in such position but for such unlawful removal.” The Town argues that because Mr. Lazzari was lawfully terminated and not unlawfully removed, and does not even challenge his initial termination, Civil Service Law § 77 does not apply. However, within the context of the statute there is no meaningful distinction between an unlawful removal and an unlawful refusal to reinstate, so Mr. Lazzari is entitled to back pay retroactive to the time the County directed the Town to reinstate him on December 18, 2007.

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

Pigott, J. (dissenting).

I dissent and decline the majority’s invitation to go “through the looking glass” to a world where a municipal employer must, in blind faith, reinstate an employee under Civil Service Law § 71 without first receiving a certification from a medical officer that the employee is fit for duty. The majority berates the parties for “squabb[ling] in and out of court” (deservedly so), but, instead of interpreting section 71 in a manner that would lead to less litigation, it offers a solution that invites more by requiring a municipal employer to commence a CPLR article 78 proceeding against another municipality that should be assisting it to obtain the certification. Although section 71 does not state to whom the certification must be given, the only practical interpretation is that it should be given to the municipal employer, the entity ultimately responsible for the consequences of an imprudent reinstatement.

As relevant here, Civil Service Law § 71 provides that an

“employee may, within one year after termination of [a disability resulting from an occupational injury or disease], make application to the . . . municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such . . . commission. If, upon such medical examination, such medical officer shall certify that such person is physically and mentally fit to perform the duties of his or her former position, he or she shall be reinstated to his or her former position” (emphasis supplied).

According to the majority, the Westchester County Department of Human Resources (DHR) letter apprising the Town of Eastchester that the DHR-selected physician “evaluated” Mr. Lazzari and concluded he was fit for duty was sufficient for purposes of section 71. This is so notwithstanding the fact that the Town had two medical opinions in its possession indicating that Mr. Lazzari was not fit for duty.

The majority finds in favor of the DHR and Mr. Lazzari despite the fact that the County refused to provide the Town with medical certification as to Mr. Lazzari’s fitness. In my view, submission of the certification to the Town by the DHR was a condition precedent to the Town’s reinstatement of Mr. Lazzari. The only rational interpretation of section 71 is that the Town, as employer, is entitled to that certification. It is the Town that does the reinstating, and it is the Town that will bear the liability should such reinstatement prove erroneous and result in injury to either Mr. Lazzari or others. As such, because DHR never provided such certification, it never fulfilled its duty under section 71 and, therefore, there was no reason for the Town to either reinstate Mr. Lazzari or commence an article 78 proceeding to obtain that certification. To that extent, I also disagree with the majority’s conclusion that the Town “ignore[d] the County’s directive” by not reinstating Mr. Lazzari (majority op at 223); DHR never sent the Town the certification, had no authority to issue a “directive” to the Town and therefore the Town had no obligation to reinstate him.

Although the majority correctly points out that section 71’s purpose “is to involve a neutral agency and a physician, independent of both the employee and the employer, with appropriate oversight” (majority op at 222), that hardly justifies keeping the results of the examination secret from—and placing the onus of actually obtaining the certification on—the Town, whose interest in ensuring that its employees are fit for duty is just as great as an employee’s interest in returning to his position.

It is well settled that section 71 “strike[s] a balance between the recognized substantial State interest in an efficient civil service and the interest in the civil servant in continued employment in the event of a disability” (Matter of Allen v Howe, 84 NY2d 665, 672 [1994] [citations omitted]). But the majority’s interpretation of section 71 places the employee’s interest in continued employment before that of the State’s substantial interest in an efficient civil service by ordering the employee’s reinstatement without the submission of any proof of the employee’s fitness to serve. The only reasonable interpretation of the statute, and the only rational approach consistent with the policy approach delineated in Allen, is that the civil service department (or the appropriate civil service commission) select the medical officer to examine the employee, and, should that medical officer certify that the employee is fit to perform his or her duties, the municipal employer must reinstate that employee upon receipt of that certification. Under the majority’s holding, the Town must commence an article 78 proceeding without knowing DHR’s basis for reinstatement. On its face, then, a blanket demand by the DHR that the Town reinstate Mr. Lazzari without any basis for doing so is the textbook definition of arbitrary and capricious.

Finally, the majority posits that, in addition to bringing an article 78 proceeding, the Town could have filed a FOIL request seeking a copy of the medical officer’s report (majority op at 223). In another trip down the rabbit hole, the County does not suggest that it would have any ground for rejecting a FOIL request by the Town (majority op at 224). By applying for a medical examination and seeking reinstatement, however, Mr. Lazzari has placed his physical condition in issue (see e.g. Dillenbeck v Hess, 73 NY2d 278, 287-288 [1989]), and, in my view, the Town was entitled to a copy of the medical officer’s report and, and the very least, a certification, without having to commence a proceeding. Mr. Lazzari had no incentive to provide the Town with the medical officer’s report or demand that the DHR provide the Town with the certification, as evidenced by the fact that he is now being handsomely rewarded with several years’ back pay simply because neither party in control of the medical information thought it important that the Town be provided any basis for reinstatement other than a letter from a nonmedical bureaucratic agency stating, in sum and substance, that Mr. Lazzari must be reinstated because some unknown medical officer who may or may not have examined Mr. Lazzari concluded that he was fit to return to work. This, to me, is not compliance with section 71.

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

Order affirmed, with costs.

      . The DHR was acting as a local municipal civil service commission pursuant to Civil Service Law §§ 15 and 17.

      . The Town also makes vague reference to CPLR 2106, but it is inapt. The statement of a physician authorized under CPLR 2106 is an affirmation (to have the same effect as an affidavit), not a certification. CPLR 2105 does refer to a certification, but it is made by an attorney, not a physician.

      . As additional authorization for the award of back pay under Civil Service Law § 77, Civil Service Law § 100 (1) (c) provides:
      “Any person entitled to be [on the certified payroll] and refused such certificate, or from whom salary or compensation is otherwise unlawfully withheld, may maintain a proceeding under article seventy-eight of the civil practice law and rules to compel the issuance of such certificate or the payment of such salary, or both, as the case may be.”
      Mr. Lazzari has been entitled to be on the certified payroll since the County directed his reinstatement and a back pay award could be based on this statutory provision as well.


text:
    [982 NE2d 576, 958 NYS2d 656]
    Steve Pappas et al., Respondents, v Steve Tzolis, Appellant, et al., Defendant.
    Argued October 11, 2012;
    decided November 27, 2012

      POINTS OF COUNSEL

      Pillsbury Winthrop Shaw Pittman LLP, New York City (E. Leo Milonas, Frederick A. Brodie and Peter Ostrovski of counsel), and Ellenoff Grossman & Schole LLP, New York City (Eric S. Weinstein and Yong Hak Kim of counsel), for appellant.
    The Appellate Division erred in holding that, in a buyout of two LLC members’ interests by the third member, the sellers could sue for breach of fiduciary duty, conversion, fraud and unjust enrichment after the sellers certified that the buyer had “no fiduciary duty” to them and they were “not relying on any representation” by the buyer. (Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V, 17 NY3d 269; Arfa v Zamir, 17 NY3d 737; Seippel v Jenkens & Gilchrist, P.C., 341 F Supp 2d 363; Asian Vegetable Research & Dev. Ctr. v Institute of Intl. Educ., 944 F Supp 1169; Blue Chip Emerald v Allied Partners, 299 AD2d 278; Palmetto Partners, L.P. v AJW Qualified Partners, LLC, 83 AD3d 804; Everett v Phillips, 288 NY 227; Dobroshi v Bank of Am., N.A., 65 AD3d 882; Northeast Gen. Corp. v Wellington Adv., 82 NY2d 158; JFK Family Ltd. Partnership v Millbrae Natural Gas Dev. Fund 2005, L.P., 89 AD3d 684.)

      Carl E. Person, New York City, for respondents.
    The First Department was correct in holding that in a buyout of two LLC members’ interests by the third member, the sellers could sue for breach of fiduciary duty, conversion, fraud and unjust enrichment after the sellers certified in closing documents that the buyer had “no fiduciary duty” to them and they were “not relying on any representation” by the buyer. (Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 76 AD3d 310, 17 NY3d 269; Blue Chip Emerald v Allied Partners, 299 AD2d 278; Everett v Phillips, 288 NY 227.)
   OPINION OF THE COURT

Pigott, J.

Plaintiffs Steve Pappas and Constantine Ifantopoulos along with defendant Steve Tzolis formed and managed a limited liability company (LLC), for the purpose of entering into a long-term lease on a building in Lower Manhattan. Pappas and Tzolis each contributed $50,000 and Ifantopoulos $25,000, in exchange for proportionate shares in the company. Pursuant to a January 2006 Operating Agreement, Tzolis agreed to post and maintain in effect a security deposit of $1,192,500, and was permitted to sublet the property. The Agreement further provided that any of the three members of the LLC could “engage in business ventures and investments of any nature whatsoever, whether or not in competition with the LLC, without obligation of any kind to the LLC or to the other Members.”

Numerous business disputes among the parties ensued. In June 2006, Tzolis took sole possession of the property, which was subleased by the LLC to a company he owned, for approximately $20,000 per month in addition to rent payable by the LLC under the lease. According to plaintiffs, they “reluctantly agreed to do this, because they were looking to lease the building and Tzolis was obstructing this from happening.” Pap-pas, who wanted to sublease the building to others, alleges that Tzolis “not only blocked [his] efforts, he also did not cooperate in listing the Property for sale or lease with any New York real estate brokers.” Moreover, Pappas claims that Tzolis “had not made, and was not diligently preparing to make, the improvements . . . required to be made under the Lease. Tzolis was also refusing to cooperate in [Pappas’s] efforts to develop the Property.” Further, Tzolis’s company did not pay the rent due.

On January 18, 2007, Tzolis bought plaintiffs’ membership interests in the LLC for $1,000,000 and $500,000, respectively. At closing, in addition to an Agreement of Assignment and Assumption, the parties executed a Certificate in which plaintiffs represented that, as sellers, they had “performed their own due diligence in connection with [the] assignments . . . engaged [their] own legal counsel, and [were] not relying on any representation by Steve Tzolis[,] or any of his agents or representatives, except as set forth in the assignments & other documents delivered to the undersigned Sellers today,” and that “Steve Tzolis has no fiduciary duty to the undersigned Sellers in connection with [the] assignments.” Tzolis made reciprocal representations as the buyer.

In August 2007, the LLC, now owned entirely by Tzolis, assigned the lease to a subsidiary of Extell Development Company for $17,500,000. In 2009, plaintiffs came to believe that Tzolis had surreptitiously negotiated the sale with the development company before he bought their interests in the LLC.

Plaintiffs commenced this action against Tzolis in April 2009, claiming that, by failing to disclose the negotiations with Extell, Tzolis breached his fiduciary duty to them. They alleged, in all, 11 causes of action.

Tzolis moved to dismiss plaintiffs’ complaint. Supreme Court dismissed the complaint in its entirety, citing the Operating Agreement and Certificate. A divided Appellate Division modified Supreme Court’s order, allowing four of plaintiffs’ claims to proceed—breach of fiduciary duty, conversion, unjust enrichment, and fraud and misrepresentation—while upholding the dismissal of the rest of the complaint (87 AD3d 889 [1st Dept 2011]). The dissenting Justices would have dismissed all the causes of action, relying on our recent decision in Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V. (17 NY3d 269 [2011]).

The Appellate Division granted Tzolis leave to appeal, certifying the question whether its order was properly made (2012 NY Slip Op 61541[U] [2012]). We now answer the certified question in the negative, and reverse.

In their first cause of action, plaintiffs claim that Tzolis was a fiduciary with respect to them and breached his duty of disclosure. Tzolis counters that plaintiffs’ claim fails to state a cause of action because, by executing the Certificate, they expressly released him from all claims based on fiduciary duty.

In Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V, we held that “[a] sophisticated principal is able to release its fiduciary from claims—at least where . . . the fiduciary relationship is no longer one of unquestioning trust—so long as the principal understands that the fiduciary is acting in its own interest and the release is knowingly entered into” (Centro Empresarial Cempresa S.A., 17 NY3d at 278). Where a principal and fiduciary are sophisticated entities and their relationship is not one of trust, the principal cannot reasonably rely on the fiduciary without making additional inquiry. For instance, in Centro Empresarial Cempresa S.A., plaintiffs—seasoned and counseled parties negotiating the termination of their relationship—knew that defendants had not supplied them with the financial information to which they were entitled, triggering “a heightened degree of diligence” (id. at 279). In this context, “the principal cannot blindly trust the fiduciary’s assertions” (id.). The test, in essence, is whether, given the nature of the parties’ relationship at the time of the release, the principal is aware of information about the fiduciary that would make reliance on the fiduciary unreasonable.

Here, plaintiffs were sophisticated businessmen represented by counsel. Moreover, plaintiffs’ own allegations make it clear that at the time of the buyout, the relationship between the parties was not one of trust, and reliance on Tzolis’s representations as a fiduciary would not have been reasonable. According to plaintiffs, there had been numerous business disputes, between Tzolis and them, concerning the sublease. Both the complaint and Pappas’s affidavit opposing the motion to dismiss portray Tzolis as uncooperative and intransigent in the face of plaintiffs’ preferences concerning the sublease. The relationship between plaintiffs and Tzolis had become antagonistic, to the extent that plaintiffs could no longer reasonably regard Tzolis as trustworthy. Therefore, crediting plaintiffs’ allegations, the release contained in the Certificate is valid, and plaintiffs cannot prevail on their cause of action alleging breach of fiduciary duty.

Practically speaking, it is clear that plaintiffs were in a position to make a reasoned judgment about whether to agree to the sale of their interests to Tzolis. The need to use care to reach an independent assessment of the value of the lease should have been obvious to plaintiffs, given that Tzolis offered to buy their interests for 20 times what they had paid for them just a year earlier.

Plaintiffs’ cause of action alleging fraud and misrepresentation must be dismissed for similar reasons. Plaintiffs principally allege that Tzolis represented to them that he was aware of no reasonable prospects of selling the lease for an amount in excess of $2,500,000. However, in the Certificate, plaintiffs “in the plainest language announced and stipulated that [they were] not relying on any representations as to the very matter as to which [they] now claim [ ] [they were] defrauded” (Danann Realty Corp. v Harris, 5 NY2d 317, 320 [1959]). Moreover, while it is true that a party that releases a fraud claim may later challenge that release as fraudulently induced if it alleges a fraud separate from any contemplated by the release (see Centro Empresarial Cempresa S.A., 17 NY3d at 276), plaintiffs do not allege that the release was itself induced by any action separate from the alleged fraud consisting of Tzolis’s failure to disclose his negotiations to sell the lease.

Plaintiffs’ conversion claim is that Tzolis appropriated to himself, without authority, plaintiffs’ membership interests in the LLC. “Two key elements of conversion are (1) plaintiff’s possessory right or interest in the property and (2) defendant’s dominion over the property or interference with it, in derogation of plaintiff’s rights” (Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 50 [2006] [citations omitted]). Here, since Tzolis had purchased plaintiffs’ interests in the LLC, there could be no interference with their property rights. Therefore, the conversion claim must be dismissed.

Finally, we reject plaintiffs’ claim that Tzolis unjustly enriched himself at their expense. The doctrine of unjust enrichment invokes an “obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties concerned” (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009] [emphasis added]). “[A] party may not recover in . . . unjust enrichment where the parties have entered into a contract that governs the subject matter” (Cox v NAP Constr. Co., Inc., 10 NY3d 592, 607 [2008]). Because the sale of interests in the LLC was controlled by contracts— the Operating Agreement, the Agreement of Assignment and Assumption, and the Certificate—the unjust enrichment claim fails as a matter of law.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, plaintiffs’ complaint dismissed in its entirety, and the certified question answered in the negative.

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

Order, insofar as appealed from, reversed, etc.


author: Ciparick, J.

text:
    [981 NE2d 784, 958 NYS2d 83]
    The People of the State of New York, Appellant, v Jeanne M. Vandover, Respondent.
    Argued October 17, 2012;
    decided November 29, 2012

      POINTS OF COUNSEL

      Francis D. Phillips, II, District Attorney, Goshen (Robert H. Middlemiss and Andrew R. Kass of counsel), for appellant.
    The Appellate Term misapplied the standard for determining probable cause and erroneously affirmed the trial court’s determination. (People v Cruz, 48 NY2d 419; People v Bigelow, 66 NY2d 417; People v McRay, 51 NY2d 594; People v Maldonado, 86 NY2d 631; People v De Bour, 40 NY2d 210; People v Jacob, 81 AD3d 977; People v Terry, 2 AD3d 977; People v Carrasquillo, 54 NY2d 248; People v Shulman, 6 NY3d 1.)

      Goldberg Segalla LLP, Albany (Matthew S. Lerner and Marianne Arcieri of counsel), amicus curiae.
    I. This matter is beyond this Court’s scope of review. (People v Williams, 17 NY3d 834;
      People v Edwards, 69 NY2d 814; People v Oden, 36 NY2d 382; People v Harrison, 57 NY2d 470; People v McRay, 51 NY2d 594; People v Wharton, 46 NY2d 924; People v Koch, 135 Misc 2d 352; People v Fox, 256 App Div 578.) II. The purported indicia of impairment in this case were in reality merely indicia of alcohol consumption. (People v Cass, 18 NY3d 553; People v Harrison, 57 NY2d 470; People v Cruz, 48 NY2d 419; People v Farmer, 36 NY2d 386; People v Miller, 199 AD2d 692.) III. The initial stop of Jeanne Vandover’s vehicle was improper. (People v Spencer, 84 NY2d 749; People v Ocasio, 85 NY2d 982; People v May, 81 NY2d 725; People v Sobotker, 43 NY2d 559; People v De Bour, 40 NY2d 210; People v Hollman, 79 NY2d 181.) IV The courts below properly concluded that Jeanne Vandover’s arrest was not supported by probable cause. (People v Carrasquillo, 54 NY2d 248; People v De Bour, 40 NY2d 210; People v Havelka, 45 NY2d 636; People v Bryant, 37 NY2d 208; People v McCarthy, 14 NY2d 206; People v O’Neill, 11 NY2d 148; People v Loria, 10 NY2d 368; People v Cruz, 48 NY2d 419; People v Gibeau, 55 AD3d 1303, 12 NY3d 758; People v Spencer, 289 AD2d 877.) V The Appellate Term appropriately ruled that the People are precluded from further prosecuting the charges against Jeanne Vandover. (People v Kates, 53 NY2d 591.)
   OPINION OF THE COURT

Ciparick, J.

In determining probable cause, the standard to be applied is that it must “appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice” (People v Carrasquillo, 54 NY2d 248, 254 [1981]). Applying this standard, there is support in the record for the Appellate Term’s determination that the facts did not support probable cause to arrest defendant. That determination, based on a mixed question of law and fact, is beyond our further review.

On October 1, 2008, defendant appeared in Justice Court on an unrelated traffic ticket. While at the courthouse, defendant spoke with an Officer James who noticed that she had glassy, bloodshot eyes, an odor of alcohol on her breath and seemed lethargic. Concerned that defendant may well be intoxicated and intending to drive a vehicle, Officer James informed Officer Barry of his observations. Both officers proceeded to follow defendant to the parking lot where they observed her getting into her automobile and moving in reverse for approximately two feet as she exited the parking spot. Officer Barry stopped defendant. Upon her exiting the vehicle, Officer Bariy administered a field sobriety test. Officer James had gone to the nearby police headquarters to retrieve a portable breath analyzer and did not observe the full field sobriety test given by Officer Barry. When Officer James returned with the equipment, he noticed, for the first time a young child in the back seat of the car without a seatbelt. Officer Barry also performed the portable breath test on defendant, which recorded a positive result. Defendant made statements, prior to her arrest, to the effect that she “had gotten off work at 8:00 [a.m.]” and “ha[d] a couple of drinks,” but those were consumed several hours prior and that she was not currently under the influence of alcohol. Defendant was arrested and charged with two counts of driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2) and (3), operating a vehicle with a backseat passenger, under 16 years of age without a seatbelt, in violation of Vehicle and Traffic Law § 1229-c (1) (b) and endangering the welfare of a child (Penal Law § 260.10 [1]).

Defendant moved to suppress her statements and other evidence obtained and a probable cause hearing was held at which Officer James and a Sergeant Metzger, who had come upon the scene, testified. Officer Barry, who administered the field sobriety test and the portable breathalyzer test, however, did not testify. Justice Court found the officers’ testimony to be credible but that Sergeant Metzger’s testimony was generally cumulative of Officer James’ testimony. However, Sergeant Metzger did testify that the positive reading of the portable breath analyzer, in this instance, was as consistent with an alcohol content below the statutory level of impairment as with a blood alcohol level above the limit. Justice Court noted Officer Barry’s absence and stated that “without [his] testimony there is insufficient testimony in the record necessary for a finding that the arrest on any of the charges was based upon probable cause” CPeople v Vandover, Hamptonburgh Just Ct, Orange County, Aug. 29, 2009, Golden, J.). Justice Court, citing the testimony of Officer James, that defendant had glassy bloodshot eyes, breath that smelled of alcohol and a generally fatigued demeanor, found that this was insufficient to establish probable cause to arrest defendant and accordingly dismissed the charges. The Appellate Term affirmed the dismissal (People v Vandover, 31 Misc 3d 131[A], 2011 NY Slip Op 50592[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]). A Judge of this Court granted leave to appeal (17 NY3d 802 [2011]) and we now affirm.

Insofar as the People argue that the Appellate Term applied an' incorrect standard of proof for determining probable cause, i.e. proof beyond a reasonable doubt as opposed to the lesser standard of more probable than not, that argument must fail. While the Appellate Term did state that “[t]he hearing proof failed to establish that defendant exhibited ‘actual impair[ment], to any extent, [of] the physical and mental abilities which [a person] is expected to possess in order to operate a vehicle as a reasonable and prudent driver’ ” (2011 NY Slip Op 50592[U], *2, quoting People v Cruz, 48 NY2d 419, 427 [1979]), we do not read the Appellate Term as departing from the correct standard. The standard to be followed is that it is more probable than not that defendant is actually impaired. Both Justice Court, citing Carrasquillo, and the Appellate Term, citing Cruz, applied the correct standard in reaching their conclusions.

Having determined that the courts below applied the correct standard in deciding the question of probable cause for arrest, we come next to the question of reviewability of the lower court findings. The conclusion that no probable cause existed to arrest defendant is a mixed question of law and fact for which there is support in the record (see People v Omowale, 18 NY3d 825, 827 [2011]; People v Gomcin, 8 NY3d 899, 901 [2007]) and is therefore otherwise unreviewable (see People v Williams, 17 NY3d 834, 835 [2011]). Although different inferences may have been drawn from these facts, we are faced with affirmed findings of fact precluding further review by this Court (see Gomcin, 8 NY3d at 901).

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

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

Order affirmed.


author: Graffeo, J.

text:
    [982 NE2d 580, 958 NYS2d 660]
    The People of the State of New York, Appellant-Respondent, v Edgar Morales, Respondent-Appellant.
    Argued October 9, 2012;
    decided December 11, 2012

      POINTS OF COUNSEL

      Robert T Johnson, District Attorney, Bronx (Peter D. Coddington, Justin J. Braun and Lindsey J. Ramistella of counsel), for appellant.
    I. Violent crime committed by a street gang constitutes a crime of terrorism (Penal Law § 490.25) when it is motivated solely by the intent to establish the gang’s “street credentials” as the toughest Mexican gang in the Bronx because those crimes are intended to intimidate or coerce a civilian population, to wit, the Mexican-American population of the Bronx and the members of other Mexican gangs. (People v Concepcion, 17 NY3d 192; People v Levy, 15 NY3d 510; People v Rabb, 16 NY3d 145; Linde v Arab Bank, PLC, 384 F Supp 2d 571; Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428; Tompkins v Hunter, 149 NY 117; People v Zimmerman, 9 NY3d 421; Matter of Taub v Altman, 3 NY3d 30; People v Jenner, 39 AD3d 1083; People v Rodriguez, 17 NY3d 486.)

      Debevoise & Plimpton LLP, New York City (Catherine M. Amirfar, Daniel M. Abuhoff, Jeremy N. Klatell and Sonia R. Farber of counsel), for respondent.
    I. The First Department correctly determined that the People had not adduced any evidence demonstrating that Edgar Morales had the intent required under the Anti-Terrorism Act. II. The terrorism convictions warrant reversal because, as a matter of law, Mexican-Americans in the St. James Park area do not constitute a “civilian population” within the meaning of the Anti-Terrorism Act. (Holloway v United States, 526 US 1; United States v Santos, 553 US 507; People v Green, 68 NY2d 151; People v Rabb, 16 NY3d 145; People v Levy, 15 NY3d 510; People v McGrath, 46 NY2d 12; Sokolow v Palestine Liberation Org., 583 F Supp 2d 451; Wultz v Islamic Republic of Iran, 755 F Supp 2d 1; Linde v Arab Bank, PLC, 384 F Supp 2d 571.) III. Rival gang members do not constitute a “civilian population” within the meaning of the Anti-Terrorism Act. IV If the Anti-Terrorism Act were construed as the People advocate, the statute would be void for vagueness. (Kolender v Lawson, 461 US 352; People v Bright, 71 NY2d 376;
      Smith v Goguen, 415 US 566; Papachristou v Jacksonville, 405 US 156; Grayned v City of Rockford, 408 US 104.) V. The trial court’s failure to dismiss the terrorism counts, in error, subverted defendant’s opportunity to receive a fair trial. (People v Baghai-Kermani, 84 NY2d 525; People v Doshi, 93 NY2d 499; People v Mahboubian, 74 NY2d 174; People v Berkowitz, 50 NY2d 333; People v Medina, 18 NY3d 98; Geraci v Probst, 15 NY3d 336; United States v Hamilton, 334 F3d 170; United States v Al-Moayad, 545 F3d 139; United States v Guiliano, 644 F2d 85; United States v Rooney, 37 F3d 847.) VI. The evidence at trial was legally insufficient to support defendant’s convictions. (People v Mateo, 2 NY3d 383; People v Berger, 52 NY2d 214; People v Ohlstein, 54 AD2d 109, 44 NY2d 896; People v Reome, 15 NY3d 188; People v Moses, 63 NY2d 299; People v Gomez, 39 AD3d 668; People v Johnson, 1 AD3d 891; People v Jackson, 65 NY2d 265; People v Cabey, 85 NY2d 417; People v Kress, 284 NY 452.) VII. Defendant’s defense was unconstitutionally impaired by the failure of his attorney to render effective assistance at trial. (Strickland v Washington, 466 US 668; People v Stultz, 2 NY3d 277; People v Brown, 45 NY2d 852; People v Gil, 285 AD2d 7; People v Droz, 39 NY2d 457; People v Wagner, 104 AD2d 457; Eze v Senkowski, 321 F3d 110; Tippins v Walker, 77 F3d 682; People v Chapman, 54 AD3d 507.) VIII. Admission of gang “expert” hearsay testimony violated defendant’s Sixth Amendment rights. (Crawford v Washington, 541 US 36; United States v Mejia, 545 F3d 179; United States v Dukagjini, 326 F3d 45; United States v Johnson, 587 F3d 625; People v Hardy, 4 NY3d 192; Brookhart v Janis, 384 US 1.) IX. Defendant’s rights under Payton v New York (445 US 573 [1980]) and Miranda v Arizona (384 US 436 [1966]) were violated. (People v Harris, 77 NY2d 434; Kaupp v Texas, 538 US 626; Taylor v Alabama, 457 US 687; People v Turriago, 219 AD2d 383; People ex rel. Jones v New York State Bd. of Parole, 76 AD2d 782; People v McIntyre, 138 AD2d 634; People v Pabon, 120 AD2d 685; People v Paulman, 5 NY3d 122.)

      Simpson Thacher & Bartlett LLP, New York City (Nicholas Goldin and David B. Edwards of counsel), for Center on the Administration of Criminal Law, amicus curiae.
    I. Terrorism is distinct from traditional gang-related crime. II. Conflating terrorism with traditional gang-related crime endangers both counter-terrorism and gang prevention efforts. III. The People need not misapply New York’s anti-terrorism statute because ample statutes already exist to adequately punish gang-related crimes. (Matter of Robinson v Snyder, 259 AD2d 280; People v

      Faccio, 33 AD3d 1041; People v Besser, 96 NY2d 136; People v Sanchez, 13 NY3d 554; People v A.S. Goldmen, Inc., 9 AD3d 283; People v Arroyo, 93 NY2d 990.)
   OPINION OF THE COURT

Graffeo, J.

Shortly after the horrendous attacks on September 11, 2001, the New York Legislature convened in special session to address the ramifications of these terrorist actions. Confronted with the tragic events of that infamous day, the legislature recognized that “terrorism is a serious and deadly problem that disrupts public order and threatens individual safety both at home and around the world” (L 2001, ch 300, § 4). It decided that New York laws needed to be “strengthened” with comprehensive legislation ensuring “that terrorists . . . are prosecuted and punished in state courts with appropriate severity” (id.).

The result was Penal Law article 490 and, among its provisions, was the new “crime of terrorism” (Penal Law § 490.25). It occurs when a person “commits a specified offense” with the “intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping” (Penal Law § 490.25 [1]). Specified offenses include many class A and violent felonies, as well as attempts to commit those crimes (see Penal Law § 490.05 [3] [a], [b]). Article 490 does not, however, contain a statutory definition of “intent to intimidate or coerce a civilian population” (Penal Law § 490.25 [1]). This appeal requires us to consider whether this phrase encompasses the acts perpetrated by defendant.

I

Defendant Edgar Morales was a member of a street gang known as the “St. James Boys” or “SJB”—apparently named for the vicinity of the Bronx where the SJB operated (running from Webster Avenue to University Avenue and from 204th Street to 170th Street). The SJB was originally formed to protect its members from other gangs and its primary objective was to be the most feared Mexican gang in the Bronx. The SJB allegedly targeted and assaulted individuals who belonged to rival confederations, extorted monies from a prostitution business and committed a series of robberies.

On the evening of August 17, 2002, several SJB members, including defendant, went to a christening party in the Bronx. They saw a man named Miguel who they thought belonged to a gang that was responsible for a friend’s death. When Miguel refused to comply with their demand to leave the party, they planned to assault him after the festivities ended. Defendant took possession of a revolver from another SJB member, agreeing to shoot Miguel if it appeared that his cohorts were losing the battle.

Around midnight, a fight broke out between the SJB members and Miguel and his companions. During the melee, an SJB member directed defendant to shoot and he fired five bullets from the handgun. Three shots hit one of the rivals and paralyzed him. A 10-year-old girl was shot in the head and died. After the SJB members fled the scene, defendant handed the gun to a female member who later passed the weapon to another SJB member. Another SJB member threw the five spent shell casings into a sewer.

After the incident, the police obtained a videotape of the christening party and using still photographs from the video, they distributed photos of suspects to the media. Subsequently, several SJB members identified defendant as one of the individuals involved in the shooting. When he was questioned by the police, defendant admitted that he attended the party but denied being the shooter, claiming that he was merely the person who carried the weapon away from the scene. Additional evidence was gathered during the investigation, including four shell casings retrieved from a sewer.

The People subsequently secured a 70-count indictment against the SJB members. Defendant, along with certain accomplices, was charged with crimes of terrorism pursuant to Penal Law § 490.25 predicated on: intentional murder in the second degree; manslaughter in the first degree; attempted murder in the second degree; gang assault in the first degree; and criminal possession of a weapon in the second degree. The underlying offenses were charged separately without the terrorism designations. Defendant and 19 others were also charged with conspiracy in the second degree based on a multitude of overt acts, including various assaults and homicides that occurred from mid-2001 to mid-2004.

During the trial, defendant challenged the sufficiency of the evidence supporting the terrorism charges. The defense argued that the activities of the SJB were “directed at rival gangs, almost exclusively” and there was “no real evidence, certainly not evidence sufficient to get to the jury on the element of acting with intent to intimidate or coerce a civilian population.” The People maintained that the targeting of other gangs was covered by Penal Law article 490 and, in any event, there was adequate proof that the SJB engaged in acts intended to intimidate or coerce all Mexican-Americans in the pertinent geographical area.

Supreme Court denied the motion, concluding that the People had established a prima facie case of terrorism based on the five designated underlying offenses. The jury convicted defendant of three crimes of terrorism under Penal Law § 490.25 premised on first-degree manslaughter, attempted second-degree murder and second-degree weapon possession, as well as second-degree conspiracy for agreeing to commit first-degree gang assault as a crime of terrorism. Defendant was sentenced to an aggregate prison term of 40 years to life.

The Appellate Division, First Department, held that there was insufficient evidence to prove an intent to intimidate or coerce a civilian population because the People established that defendant only engaged in gang-related street crimes, not terrorist acts (86 AD3d 147 [2011]). As a result, the Appellate Division modified by reducing the terrorism convictions to the three primary offenses and the conspiracy conviction was reduced from second degree to fourth degree. Defendant’s other challenges—including his claim that the People’s theory of terrorism unduly prejudiced the entire trial—were rejected as unpreserved or meritless.

A Judge of this Court granted leave to defendant and the People (17 NY3d 904 [2011]).

II

The People assert that the term “civilian population” as used in Penal Law article 490 embraces all of the Mexican-Americans who resided within the SJB’s designated area, as well as the subset of rival Mexican-American gangs in the same vicinity. The prosecution asks us to reinstate the terrorism convictions, contending that there was sufficient evidence that defendant’s actions after the party furthered the SJB’s objective to intimidate or coerce other Mexican-American gangs in the Bronx and, as a result of those activities, the SJB intended to intimidate and coerce the entire Mexican-American community during the time period charged in the indictment. Defendant argues that neither the population of Mexican-Americans in the St. James Park neighborhood, nor the smaller category of rival gangs, can constitute a “civilian population” as a matter of law.

We begin by examining the text of article 490, which does not define the phrase “intent to intimidate or coerce a civilian population.” We therefore give this language its “most natural and obvious meaning” (People v Hedgeman, 70 NY2d 533, 537 [1987]) based on common sense and reasonableness (see e.g. People v Ballman, 15 NY3d 68, 73-74 [2010]; People v Gallagher, 69 NY2d 525, 530 [1987]) in the context of the purpose and history of the terrorism statutes (see e.g. People v Sanchez, 13 NY3d 554, 565 [2009]). “Civilian population” could be read broadly to encompass a variety of communities depending on how the relevant “area” is defined and who lives within that territory. Conceivably, it could range from the residents of a single apartment building to a neighborhood, city, county, state or even a country.

Like the Appellate Division, we find it unnecessary to precisely define the contours of the phrase “civilian population” for two reasons. First, even assuming that all of the Mexican-Americans in the St. James Park area may be considered a “civilian population,” the evidence at trial failed to demonstrate that defendant and his fellow gang members committed the acts against Miguel and his companions with the conscious objective of intimidating every Mexican-American in the territory identified at trial. Rather, viewing the proof in the light most favorable to the People (see People v Ramos, 19 NY3d 133, 136 [2012]), the prosecution demonstrated that defendant and his accomplices arranged the attack because of Miguel’s assumed membership in a rival gang and his refusal to leave the party. We do not believe that this discrete criminal transaction against identified gang enemies was designed to intimidate or coerce the entire Mexican-American community in this Bronx neighborhood.

Second, while there is a valid line of reasoning and permissible inferences from which the jury could have concluded that one of defendant’s possible goals for attacking Miguel was to intimidate or coerce another gang, there is no indication that the legislature enacted article 490 of the Penal Law with the intention of elevating gang-on-gang street violence to the status of terrorism as that concept is commonly understood. Specifically, the statutory language cannot be interpreted so broadly so as to cover individuals or groups who are not normally viewed as “terrorists” (see generally Hedgeman, 70 NY2d at 537) and the legislative findings in section 490.00 clearly demonstrate that the legislature was not extending the reach of the new statute to crimes of this nature. This is apparent in the examples of terrorism cited in the legislative findings: (1) the September 11, 2001 attacks on the World Trade Center and the Pentagon; (2) the bombings of American embassies in Kenya and Tanzania in 1998; (3) the destruction of the Oklahoma City federal office building in 1995; (4) the mid-air bombing of Pan Am Flight number 103 in Lockerbie, Scotland in 1988; (5) the 1997 shooting from atop the Empire State Building; (6) the 1994 murder of Ari Halberstam on the Brooklyn Bridge; and (7) the bombing at the World Trade Center in 1993 (see Penal Law § 490.00). The offenses committed by defendant and his associates after the christening party obviously are not comparable to these instances of terroristic acts.

We must also consider the sources that the legislature consulted in drafting the new statutes. The definitional provisions of Penal Law article 490 were “drawn from the federal definition of ‘international terrorism’ ” (William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 490.10 at 299; see also Richard A. Greenberg et al., New York Criminal Law § 39:1 at 1738 [3d ed 6 West’s NY Prac Series 2007] [explaining that the legislature was able to act six days after September 11th “because of the model provided by existing federal antiterrorism legislation”]). The federal antiterrorism statutes were designed to criminalize acts such as “the detonation of bombs in a metropolitan area” or “the deliberate assassination of persons to strike fear into others to deter them from exercising their rights”— conduct that is not akin to the serious offenses charged in this case. Similarly, a statute extending federal jurisdiction to certain crimes committed against Americans abroad with the intent “to coerce, intimidate, or retaliate against ... a civilian population” (18 USC § 2332 [d]) was not meant to reach “normal street crime” (see e.g. Linde v Arab Bank, PLC, 384 F Supp 2d 571, 581 n 7 [ED NY 2005] [“drive-by shootings and other street crime,” and “ordinary violent crimes . . . robberies or personal vendettas,” do not satisfy the intent element of “international terrorism” under 18 USC § 2331 (1)]).

If we were to apply a broad definition to “intent to intimidate or coerce a civilian population,” the People could invoke the specter of “terrorism” every time a Blood assaults a Crip or an organized crime family orchestrates the murder of a rival syndicate’s soldier. But the concept of terrorism has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act. History and experience have shown that it is impossible for us to anticipate every conceivable manner in which evil schemes can threaten our society. Because the legislature was aware of the difficulty in defining or categorizing specific acts of terrorism, it incorporated a general definition of the crime (see generally People v Garson, 6 NY3d 604, 612 [2006]; People v Lang, 36 NY2d 366, 371 [1975]) and referenced seven notorious acts of terrorism that serve as guideposts for determining whether a future incident qualifies for this nefarious designation (see generally People v Assi, 14 NY3d 335, 341 [2010]).

Considered in that context, and subject to possible exceptions that could arise if a criminal organization engages in terrorist activities, we conclude that the legislature did not intend for the crime of terrorism to cover the illegal acts of a gang member committed for the purpose of coercing or intimidating adversaries. Therefore, the evidence in this case was insufficient to establish defendant’s guilt beyond a reasonable doubt under Penal Law § 490.25. Defendant’s violent, criminal acts as a member of the SJB gang unquestionably resulted in tragic consequences— the needless death of a little girl and the paralysis of a young man—but they were not acts of terrorism within the meaning of Penal Law article 490.

m

On his cross appeal, defendant contends that he is entitled to a new trial on the underlying offenses specified in the terrorism counts because the theory of terrorism should not have been charged and the People were therefore permitted to introduce otherwise inadmissible evidence that unduly prejudiced the jury’s ability to fairly adjudicate his guilt or innocence. We agree.

“Whether an error in the proceedings relating to one count requires reversal of convictions on other jointly tried counts is a question that can only be resolved on a case-by-case basis” (People v Baghai-Kermani, 84 NY2d 525, 532 [1994]). We must evaluate “the individual facts of the case, the nature of the error and its potential for prejudicial impact on the over-all outcome” (People v Concepcion, 17 NY3d 192, 196-197 [2011] [internal quotation marks and citation omitted]; see also People v Doshi, 93 NY2d 499, 505 [1999]). Reversal is required if “there is a reasonable possibility that the jury’s decision to convict on the tainted counts influenced its guilty verdict on the remaining counts in a meaningful way” (Doshi, 93 NY2d at 505 [internal quotation marks and citation omitted]; see also People v Daly, 14 NY3d 848, 849 [2010]).

By proceeding on the terrorism theory, the People were able to introduce evidence about numerous alleged criminal acts committed by members of the SJB gang over the course of three years. Without the aura of terrorism looming over the case, the activities of defendant’s associates in other contexts would have been largely, if not entirely, inadmissible. Based on the record, it is apparent that the volume of proof regarding unrelated assaults, murders and other offenses created a reasonable possibility that the jury’s findings were prejudicially influenced. Hence, the spillover effect requires reversal and a new trial on the underlying offenses.

Accordingly, on the People’s appeal, the order should be affirmed. On defendant’s appeal, the order should be reversed and a new trial ordered.

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

On the People’s appeal, order affirmed. On the defendant’s appeal, order reversed and a new trial ordered.

      . See American Heritage Dictionary of the English Language 1366 (4th ed 2006) (defining “population” as “[t]he total number of inhabitants constituting a particular race, class, or group in a specified area”); New Oxford American Dictionary 1320 (2d ed 2005) (“a particular section, group or type of people . . . living in an area or country”); Webster’s Third New International Dictionary 1766 (2002) (“a body of persons having some quality or characteristic in common and usu[ally] thought of as occupying a particular area”).

      . These are set forth in the legislative history of the Foreign Intelligence Surveillance Act, as it was originally enacted (50 USC § 1801 et seq.) (see S Rep 95-701, 95th Cong, 2d Sess at 30, reprinted in 1978 US Code Cong & Admin News at 3999).

      . See HR Conf Rep 783, 99th Cong, 2d Sess at 87, reprinted in 1986 US Code Cong & Admin News at 1960.

      . To the extent that defendant’s remaining contentions must be addressed, we reject them because there was sufficient evidence to prove his guilt of the underlying specified offenses (see generally People v Reome, 15 NY3d 188, 192 [2010]) and the record supports the suppression court’s determinations that defendant’s Payton and Miranda rights were not violated.