author: Abdus-Salaam, J. Chief Judge Lippman

text:
    [30 NE3d 145, 7 NYS3d 254]
    The People of the State of New York, Respondent, v Benny Garay, Appellant.
    Argued February 10, 2015;
    decided March 31, 2015

      POINTS OF COUNSEL

      Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York City {Adam J. Bernstein and James H. Borod of counsel), and Steven Banks, The Legal Aid Society, New York City {Andrew C. Fine and Scott A. Rosenberg of counsel), for appellant.
    I. The trial court violated appellant’s constitutional right to counsel by holding a hearing and discharging a sworn and seated juror while appellant’s trial counsel was absent. (People v Lopez, 16 NY3d 375; People v Hodge, 53 NY2d 313; People v Bing, 76 NY2d 331; People v Harris, 77 NY2d 434; People v Ramos, 99 NY2d 27; People v Chapman, 69 NY2d 497; People v Johnson, 189 AD2d 318; People v Ivery, 96 AD2d 712; People v Felder, 47 NY2d 287; People v Wardlaw, 6 NY3d 556.) II. The trial court violated appellant’s Sixth Amendment right to a public trial by failing to sua sponte consider reasonable alternatives to courtroom closure. (People v Echevarria, 21 NY3d 1; Presley v Georgia, 558 US 209; In re Oliver, 333 US 257; Waller v Georgia, 467 US 39; Press-Enterprise Co. v Superior Court of Cal., County of Riverside, 478 US 1; United States v Lucas, 932 F2d 1210; People v Vilsaint, 293 AD2d 555; People v Sanabria, 301 AD2d 307; People v Peque, 22 NY3d 168; People v Martin, 16 NY3d 607.) III. The trial court erred by summarily denying appellant a suppression hearing. (People v Bailey, 218 AD2d 569; People v Mendoza, 82 NY2d 415; People v Jones, 95 NY2d 721; People v Burton, 6 NY3d 584; People v Rivera, 42 AD3d 160; People v Lopez, 263 AD2d 434; People v Sobotker, 43 NY2d 559; People v Hightower, 85 NY2d 988; People v Bryant, 8 NY3d 530.)

      Cyrus R. Vance, Jr., District Attorney, New York City {Patricia Curran and Hilary Hassler of counsel), for respondent.
    I. Defendant was not deprived of his right to counsel when the court replaced an ill juror with an alternate juror. (People v Page, 72 NY2d 69; People v Jeanty, 94 NY2d 507; People v Arrington, 14 AD3d 442; People v Davis, 6 AD3d 1168; People v Medina, 18 NY3d 98; People v Gray, 86 NY2d 10; People v Cantave, 21 NY3d 374; People v Narayan, 54 NY2d 106; People v Strothers, 87 AD3d 431; People v Margan, 157 AD2d 64.) II. The court properly ordered a partial closure of the courtroom based on the evidence adduced at the Hinton hearing. (People v Echevarria, 21 NY3d 1; Presley v Georgia, 558 US 209; Waller v Georgia, 467 US 39; People v Ramos, 90 NY2d 490; People v Martinez, 82 NY2d 436; People v Cummings, 271 AD2d 305; People v Hinton, 31 NY2d 71; People v Jones, 47 NY2d 409; People v Jones, 96 NY2d 213; Ayala v Speckard, 131 F3d 62.) III. The trial court properly denied defendant’s request for a hearing based on his motion to suppress physical evidence. (People v Mendoza, 82 NY2d 415; Mapp v Ohio, 367 US 643; Dunaway v New York, 442 US 200; People v Bryant, 8 NY3d 530; People v Gruden, 42 NY2d 214; People v Burton, 6 NY3d 584; People v Lopez, 5 NY3d 753; People v Ramirez-Portoreal, 88 NY2d 99; People v Rodriguez, 69 NY2d 159; People v France, 12 NY3d 790.)
   OPINION OF THE COURT

Abdus-Salaam, J.

On this appeal, defendant asserts three main arguments: (1) that his right to counsel under the New York Constitution (art I, § 6) was violated in connection with the trial court’s replacement of a sick juror with an alternate juror; (2) that the court violated his right to a public trial under the Sixth Amendment of the United States Constitution by failing to consider reasonable alternatives to closure before ordering the courtroom closed during the testimony of two undercover officers; and (3) that the court erred in summarily denying his request for a suppression hearing under CPL 710.60 (3). We conclude that defendant’s right to counsel claim was not preserved for appellate review, and that the remaining claims lack merit.

Defendant Benny Garay was tried for his alleged role in a cocaine drug ring led by his codefendant Lillian Rivera. They were jointly tried. Garay was charged with conspiracy in the second degree (Penal Law § 105.15); criminal possession of a controlled substance in the first degree (Penal Law § 220.21 [1]); criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]); and criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]).

Several weeks after the trial had begun, the trial court began the session by acknowledging that defendant Garay’s trial counsel, Mr. Conway, was not present. The court then referenced an off the record discussion that was held that morning with both counsel, as well as an off the record ex parte communication the court had with a sick juror. The court stated that it had spoken with all the lawyers, including defendant’s counsel, and had advised them that one of the jurors had called in sick, and that the juror had stated that “in no way” could he make it to court that day, even if the trial were adjourned until the afternoon. The Judge stated that he was going to replace the sick juror with the next alternate juror. Codefendant Rivera’s lawyer objected to replacing the sick juror with an alternate and stated that he had conferred with defendant’s lawyer and that he “believe [d]” defendant’s counsel “is agreeing” to the objection as well. Rivera’s counsel suggested that the court postpone the trial for one day in the hope that the sick juror might return, and he also complained that discharging the sick juror would leave only one remaining alternate juror. He noted that the court had previously excused an alternate juror for psychological reasons and he had not objected, but that he was objecting to excusing this second juror. He argued that there were not many minorities on the jury, and that one of two black jurors would now be replaced by a white juror.

The Judge explained that the trial was already going beyond the time that he had estimated for the jury, and that he was concerned about losing more jurors, and concluded that the sick juror would be replaced. The court then directed that the jurors be brought in, to which codefendant’s counsel inquired, “Judge, are we waiting for [Garay’s counsel]?” The record shows that right after this inquiry, counsel entered the courtroom, and thereafter the jury entered. After the jurors were seated, the court told an alternate juror: “[Ylou’re going to take that seat right over there, number ten. That will be your seat for the rest of the trial.” Defense counsel made no comment or objection. The People then called their next witness and the trial proceeded.

Garay was acquitted of every charge except for criminal possession in the fifth degree. He was sentenced to time served, having been incarcerated for 26 months. The Appellate Division affirmed (107 AD3d 580 [2013]), and a Judge of this Court granted him leave to appeal (22 NY3d 1040 [2013]).

We agree with the Appellate Division that defendant failed to preserve his claim that he was deprived of his right to counsel when the court replaced the sick juror with an alternate juror.

“For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same” (CPL 470.05 [2]).

The court’s replacement of the sick juror in the presence of defense counsel was not a mode of proceedings error which “provides an exception to traditional preservation rules” (People v Gray, 86 NY2d 10, 21 [1995]).

This Court has applied the commonsense principle that if defense counsel is present to bring an error to the trial court’s attention, counsel must register a protest where the error, if called to the court’s attention, “would afford the trial court opportunity promptly to rescind any directive violative of the defendant’s right of access to counsel or otherwise to cure the error” (People v Narayan, 54 NY2d 106, 112 [1981]). We reaffirmed that principle in People v Umali (10 NY3d 417 [2008]). Both Narayan and Umali concerned a court’s restriction on defendant’s right to confer with defense counsel in the course of the trial. In Narayan, the court had imposed a ban on defense counsel speaking with defendant concerning defendant’s testimony in the course of cross-examination. Umali involved a ban on discussing testimony during a four-day recess. We held that in order to preserve a claim involving a right to counsel for appellate review, counsel was required to timely protest the ruling.

Here, although defense counsel was not present in court while the Judge was stating on the record that he intended to replace the sick juror and counsel for codefendant was objecting to that replacement, the record shows that prior to arriving in the courtroom, counsel was aware from his discussion with the court that there was a sick juror and that the court had previously excused an alternate juror for psychological reasons. Most importantly, defense counsel was in the courtroom when the Judge told the alternate to take the seat of the sick juror. If counsel had any objection to the replacement of the juror, including a desire to be heard further on the issue, he had the time and the opportunity to make his position known. It was incumbent upon him to raise an objection at that time, before the trial proceeded. Certainly, the better practice would have been for the trial judge to await counsel’s arrival before placing his decision regarding the juror on the record. While, as the dissent notes, defense counsel was absent during the on the record discussion about dismissing the juror, nonetheless, counsel was present at the critical time when the sick juror was being replaced by the alternate, and counsel did not raise any objection concerning the right to counsel or otherwise, at a time when the trial court had the opportunity to change course. Thus, the preservation rule that we applied in Narayan and Umali applies in this instance.

The Appellate Division correctly distinguished this situation from the facts of People v Strothers (87 AD3d 431 [1st Dept 2011]), where the court commenced a suppression hearing in the absence of defense counsel, who arrived halfway through the testimony of a witness. In Strothers, because counsel was not present when the deprivation occurred and thus could not lodge an objection, the Court rejected the People’s argument that counsel had been required to preserve his claim that defendant had been deprived of the right to counsel (id. at 433; see also People v Margan, 157 AD2d 64 [2d Dept 1990] [where trial judge directed the prosecutor to begin direct examination of witness in the absence of defense counsel, the error did not occur in the presence of counsel, and thus the holding of Narayan is not controlling]).

In sum, defense counsel’s failure to object when the court replaced the sick juror renders defendant’s claim of deprivation of the right to counsel unpreserved and thus beyond our review (see People v Medina, 18 NY3d 98, 104 [2011]; People v Gray, 86 NY2d 10, 19 [1995]).

Regarding the closing of the courtroom, the court conducted a Hinton hearing prior to trial at which two undercover officers testified in detail as to their activities working undercover, their safety concerns about testifying in an open courtroom and their belief that testifying in an open courtroom would compromise their effectiveness as active undercover officers. After the testimony, the prosecutor requested that the courtroom be closed for the testimony of the officers. Defendant opposed the closing of the courtroom, and asked that his family be allowed to attend in any event. At the close of the hearing, the court found that both officers were “clearly active undercover officers,” that they both had open undercover cases and had been threatened during the course of their undercover work, and that they both took precautions to protect their identities when they came to court, such as using a side entrance to the courthouse.

The court concluded that the People had met their burden on closing the courtroom for the testimony of the officers, but had not met their burden on the exclusion of family members or significant others. It ordered a partial courtroom closure, allowing defendants’ family members to attend all aspects of the trial, including the testimony of the undercover officers, provided defendants gave a list of the names of family members who were expected to attend, and their relationship to defendants. At trial, immediately preceding the testimony of one of the undercover officers and the sealing of the courtroom, the Judge said that he “gathered]” by defendants’ “silence” that there was nobody there from their families attending that day, and stated that if a family member were to arrive, “[j]ust let [the court] know. We’ll let them in.”

On appeal, defendant does not challenge the adequacy of the People’s showing in support of the closure. Rather, he argues that his Sixth Amendment right to a public trial was violated because, he asserts, the trial court did not consider “reasonable alternatives” to closing the courtroom, which is one of the four prongs comprising the standard for courtroom closure set out by the United States Supreme Court in Waller v Georgia (467 US 39, 48 [1984]). The Waller Court held:

“[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure” (467 US at 48).

Defendant points out that the trial court did not articulate any specific findings reflecting its consideration of alternatives. He relies on Presley v Georgia (558 US 209 [2010]), which held that “trial courts are required to consider alternatives to closure even when they are not offered by the parties” (id. at 214) and that trial courts must make findings “specific enough that a reviewing court can determine whether the closure order was properly entered” (id. at 214-215, quoting Press-Enterprise Co. v Superior Court of Cal., Riverside Cty., 464 US 501, 510 [1984]).

However, as defendant recognizes, this Court has rejected the argument that United States Supreme Court precedent requires a trial court to explain, on the record, the alternatives to closure that it considered (People v Echevarria, 21 NY3d 1, 18 [2013]; People v Ramos, 90 NY2d 490, 504 [1997]). Rather, we have concluded that where the record establishes, as it does here, the need to close a portion of the proceedings, “it can be implied that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest” (Echevarria, 21 NY3d at 18-19, quoting Ramos, 90 NY2d at 504). We reject defendant’s argument that Echevarria is irreconcilable with Supreme Court precedent and that it sets forth an unworkable standard, and we decline defendant’s suggestion that we overrule our precedent.

Finally, we agree with the Appellate Division that the trial court properly denied defendant’s request for a hearing based on his motion to suppress physical evidence. The police, who were conducting an investigation of a large-scale cocaine selling operation, had identified Rivera as the head of the organization and defendant as her driver. On March 7, 2008, the police heard, through a wiretap on Rivera’s phone, a conversation she had with Garay where she asked Garay to pick her up at her house. Garay drove Rivera from the Bronx to Manhattan, where she allegedly purchased a kilogram of cocaine. After they returned to Rivera’s house, he went inside her apartment and then returned to the car and drove off. The police stopped Garay’s car, arrested him and searched him. After he was placed in a police van, Garay was searched again and cocaine was found in his pants pocket.

Garay was initially charged in a criminal complaint alleging that he engaged in a drug selling conspiracy involving Rivera and others. The complaint alleged that Garay drove Rivera on March 7, 2008, that when he was stopped by police he displayed a New York City Police Department identification card and that the police recovered a “quantity of cocaine” from his pants pocket. At the arraignment, the prosecutor further alleged that Garay was Rivera’s driver and had a number of cars registered to his name which had been associated with Rivera. She also alleged that when Garay was arrested, he had cocaine that appeared to have been cut from a kilogram that was found in Rivera’s apartment. The indictment charged defendant, along with Rivera and others, with overt acts in furtherance of a conspiracy to sell cocaine. The indictment was consistent with the allegations of the criminal complaint and the allegations made at arraignment.

Defendant’s motion for suppression was supported by an affirmation by defense counsel which stated that defendant did not consent to a search of his vehicle or his person, that he was not committing a crime at the time he was detained, that he was not engaged in any criminal conduct, and that no contraband was in plain view. Counsel also stated that defendant was stopped “pursuant to dropping off a family member,” and that the police did not have probable cause to search defendant. The People, citing CPL 710.60 (1), opposed the motion on the ground that it did not contain sworn allegations of fact necessary to warrant a hearing. On appeal, Garay argues that the People’s allegations against him were sparse and unspecific, and that given these deficiencies, defendant sufficiently challenged the allegations of probable cause to arrest him by asserting that he was stopped after dropping off a family member, was not engaged in any criminal conduct and had no contraband in plain view.

Defendant’s allegations failed to raise a legal basis for suppression. CPL 710.60 (1) provides that a motion to suppress made before trial must state the ground or grounds of the motion and contain sworn allegations of fact supporting such grounds. The court may summarily deny the motion if “[t]he motion papers do not allege a ground constituting legal basis for the motion,” or, with two exceptions not relevant here, “[t]he sworn allegations of fact do not as a matter of law support the ground alleged” (CPL 710.60 [3] [a], [b]).

As we held in People v Mendoza (82 NY2d 415 [1993]), the factual sufficiency of a suppression motion “should be determined with reference to the face of the pleadings, the context of the motion and defendant’s access to information” (id. at 422). We agree with the People that in this context, defendant’s simple denial that he was not engaged in any criminal conduct at the time he was stopped did not raise any issue of fact requiring a hearing. It was defendant’s role in the conspiracy as Rivera’s driver and his conduct in transporting her at the time of the purchase of the kilogram of cocaine that provided probable cause to arrest him. Under those circumstances, it was incumbent upon defendant to refute the allegations in order to obtain a hearing.

Here, as in the context of a buy and bust situation, factual allegations of innocent conduct at the time of the arrest do not mandate a hearing because in the typical buy and bust situation, probable cause is “generated by the drug transaction,” and therefore, “an allegation that defendant was merely standing on the street at the time of arrest does not frame a factual issue for the court’s determination” (People v Jones, 95 NY2d 721, 726 [2001], quoting Mendoza, 82 NY2d at 428). Thus, defendant’s claim of innocent conduct at the time of the arrest, in the face of allegations that he was part of a drug dealing conspiracy, was insufficient to establish entitlement to a hearing.

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

Chief Judge Lippman

(dissenting). Because this Court does not require preservation for violations of the right to counsel where counsel is absent during crucial parts of proceedings, I would reach the merits of defendant’s constitutional claim. Thereupon, I would hold that defendant’s right to counsel was violated when the court decided to dismiss a juror in defense counsel’s absence.

As this Court has repeatedly held, “a claimed deprivation of the State constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved” (People v Kinchen, 60 NY2d 772, 773 [1983]; see People v McLean, 15 NY3d 117, 120 [2010] [“right to counsel claims are excepted from the general rule that unpreserved issues cannot be reviewed on appeal”]; see People v Ahmed, 66 NY2d 307, 310 [1985] [violation of right to counsel constitutes “mode of proceedings error” and does not require preservation]). In People v Grant (91 NY2d 989 [1998]), this Court permitted a defendant to raise a right to counsel claim that had not been raised in the lower courts, “following] the settled rule that a claim of deprivation of the fundamental right of counsel may be raised on appeal though not specifically preserved below” (Arthur Karger, Powers of the New York Court of Appeals § 21:11 at 779 n 19 [3d ed rev 2005]).

As is made clear from the record, the court had twice decided to excuse the sick juror outside the presence of defense counsel, hearing arguments against dismissal, and supplying reasoning justifying the dismissal. After making its decision to replace the sick juror, the court stated: “I wish we [could] replace [Ga-ray’s counsel]. Unfortunately we can’t.” Garay’s counsel entered moments later, after all but the finishing touches had been completed in his absence. The majority assumes defense counsel was aware of everything taking place in his absence, but that is unwarranted on this record. While acknowledging that “ [c]ertainly, the better practice would have been for the trial judge to await counsel’s arrival before placing his decision regarding the juror on the record,” the majority maintains that defense “counsel was present at the critical time when the sick juror was being replaced by the alternate, and counsel did not raise any objection concerning the right to counsel or otherwise, at a time when the trial court had the opportunity to change course” (majority op at 68).

Despite the cases to the contrary, the majority points to two cases in which this Court held that a right to counsel claim must be preserved (see People v Narayan, 54 NY2d 106, 112 [1981]; People v Umali, 10 NY3d 417, 423 [2008]). In both Narayan and Umali, the court denied defendant the right to confer with defense counsel during trial, and we held that the defendants’ right to counsel claims were unpreserved to the extent that counsel did not object. However, those cases are distinguishable because, there, trial counsel was “presen[t] ... at the time of the trespass on defendant’s right to his assistance” (Narayan, 54 NY2d at 112; see Umali, 10 NY3d at 423). The majority overlooks this crucial distinction and apparently assumes that the court’s decision to dismiss the juror— made in defense counsel’s absence — was a revocable decision and thus unreviewable, a determination that cannot be drawn from these cases (see majority op at 68). Significantly, the relevant “critical time” at which defendant was deprived of his right to counsel was not, as the majority posits, when the sick juror was actually replaced by the alternate, but, at the very least, when the court made its decision to dismiss the juror. This is reflected in CPL 270.35 (2) (b), which provides that “[t]he court shall afford the parties an opportunity to be heard before discharging a juror.”

The majority also concludes that the Appellate Division correctly distinguished the circumstances here from the facts of People v Strothers (87 AD3d 431 [1st Dept 2011]). In Strothers, defense counsel arrived halfway through the proceeding, but the Court held that counsel could not lodge an objection while absent, and thus preservation was not required (see 87 AD3d at 433). The deprivation of counsel in Strothers occurred at the commencement of the proceeding, with defense counsel arriving halfway through, and here, it occurred when the court made its decision to dismiss the juror (majority op at 68, citing 87 AD3d at 433). Here, the arguments against dismissal of the juror had been heard and rejected, and the issue decided with the only task remaining being the seating of the alternate juror. Defense counsel was absent during the entire period and very possibly was unaware of the proceedings taking place without him.

In People v Margan, where the trial judge ordered the prosecutor to begin direct examination of a witness in the absence of defense counsel, the Appellate Division correctly followed “the general rule that a violation of the right to counsel may be raised, as a question of law, for [the] first time on appeal” (157 AD2d 64, 70 [2d Dept 1990]). The important distinction is that in Strothers, Margan, and here, defense counsel was absent from the courtroom during the proceeding, but was present in Narayan and Umali.

Affirming the judgment “on preservation grounds will only encourage prosecutors in their already well-established tendency to pounce on every arguable imperfection in a defense lawyer’s argument as a barrier to deciding a case on the merits” (People v Beasley, 16 NY3d 289, 293 [2011, Smith, J., concurring]).

I would hold that preservation is not required here, and upon reaching the merits, I would conclude that defendant’s right to counsel was violated.

“This [C]ourt has consistently exercised the highest degree of vigilance in safeguarding the right of an accused to have the assistance of an attorney at every stage of the legal proceedings against him” (People v Cunningham, 49 NY2d 203, 207 [1980]). “[S]ince most constitutional rights are not self-executing, the right to counsel may be the most basic of all” (People v Hodge, 53 NY2d 313, 317 [1981]). Criminal Procedure Law § 270.35 (2) (b) states that “[t]he court shall afford the parties an opportunity to be heard before discharging a juror.” A court has discretion to replace an absent juror “if the court determines that there is no reasonable likelihood such juror will be appearing ... in court within two hours of the time set by the court for the trial to resume” (CPL 270.35 [2] [a]), but it cannot do so absent defense counsel.

In Hodge, the trial court insisted that the defendant proceed with a preindictment preliminary hearing despite defense counsel’s absence (see 53 NY2d at 316-317). The People asserted that because the defendant was subsequently indicted, there was no harm and “any infirmities that occurred at the flawed hearing may be excused” {id. at 319). We held there that “the test must be not what the hearing did not produce, but what it might have produced if the defendant’s right to counsel had not been ignored” {id. at 321). “[T]he result of such inquiry would have to be pure speculation” {id.).

In People v Johnson (189 AD2d 318 [4th Dept 1993]), reversal was “mandated” where a trial court discharged a sworn juror prior to the impanelment of the entire jury “in the absence of defense counsel” {id. at 320). Because “|j]ury selection is a critical stage of a criminal proceeding,” “the unique, indispensable presence of at least the single-minded counsel for the accused is minimally necessary to safeguard” the defendant’s “constitutional right to a particular jury chosen according to law, in whose selection he has had a voice” {id. [internal quotation marks and citations omitted]).

The denial of the right to counsel at trial “is of constitutional dimension” and is not subject to harmless error analysis (Hodge, 53 NY2d at 320; People v Hilliard, 73 NY2d 584, 587 [1989]). As this Court recognized, “[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial” (see People v Felder, 47 NY2d 287, 296 [1979]; see also Perry v Leeke, 488 US 272 [1989]).

Here, the court’s decision to replace the ill juror must be made while defense counsel is present. Indeed, the statute directs that counsel “shall” be afforded an opportunity to object (see CPL 270.35 [2] [b]). Further, trial courts should not disregard this Court’s long history of safeguarding the right to counsel (Hodge, 53 NY2d at 317-318). As it was in Hodge, it is inappropriately speculative here to assert that the juror would have been discharged even if counsel had been present (see 53 NY2d at 320-321; Felder, 47 NY2d at 296).

For these reasons, I would reverse the Appellate Division and remit for a new trial.

Judges Read, Pigott and Rivera concur; Chief Judge Lippman dissents in an opinion in which Judges Stein and Fahey concur.

Order affirmed.

      . His codefendant Rivera was convicted of conspiracy in the second degree, five counts of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the first degree and criminal possession of a controlled substance in the third degree. She was sentenced to an aggregate prison term of 20 years with five years of post-release supervision.

      . People v Hinton, 31 NY2d 71, 75-76 (1972) (while trial court has inherent discretionary power to close the courtroom, that discretion is to “be sparingly exercised and then, only when unusual circumstances necessitate it”).


source: Caselaw Access Project

author: Fahey, J. Pigott, J.

license: Public Domain

text:
    [30 NE3d 137, 7 NYS3d 246]
    The People of the State of New York, Respondent, v Richard Garcia, Appellant. The People of the State of New York, Respondent, v Joshue DeJesus, Appellant.
    Argued February 17, 2015;
    decided March 31, 2015

      POINTS OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City CAmanda Rolat of counsel), for appellant in the first above-entitled action.
    I. The evidence was insufficient to establish appellant’s guilt where the sole testifying witness’s account was substantially contradicted by her previous statements to police, the medical evidence, and other testimony given by the responding officer. (Jackson v Virginia, 443 US 307; People v Contes, 60 NY2d 620; Matter of Gregory J., 204 AD2d 68; Matter of Anthony W., 51 AD3d 808; People v Taylor, 98 AD2d 269; People v Daniels, 88 AD2d 392; United States v Wade, 388 US 218; People v Beckford, 141 Misc 2d 71; People v Jones, 73 NY2d 427; Matter of Persing v Coughlin, 214 AD2d 145.) II. In this single witness identification case, appellant was denied his right to confront witnesses and his due process right to a fair trial where the trial court admitted, over specific defense objection, a highly prejudicial out-of-court statement that the decedent had been involved in a dispute with appellant at the time of the shooting. (Crawford v Washington, 541 US 36; People v Huertas, 75 NY2d 487; People v Nieves, 67 NY2d 125; People v Brensic, 70 NY2d 9; People v Maher, 89 NY2d 456; People v McCullough, 73 AD2d 310; People v Morris, 21 NY3d 588; People v Resek, 3 NY3d 385; People v Tosca, 98 NY2d 660; People v Rivera, 96 NY2d 749.) III. The Appellate Division erred in finding the trial court’s refusal to issue a limiting instruction with respect to the hearsay testimony, despite repeated requests by both the prosecution and defense, to be harmless error in a single-witness identification case. (People v Crimmins, 36 NY2d 230; United States v Reyes, 18 F3d 65; People v Morris, 21 NY3d 588; People v Resek, 3 NY3d 385; People v Rivera, 96 NY2d 749; People v Till, 87 NY2d 835; People v Sallitto, 125 AD2d 345; People v Ahmed, 66 NY2d 307; Carter v Kentucky, 450 US 288; Taylor v Kentucky, 436 US 478.)

      Robert T. Johnson, District Attorney, Bronx (David P. Johnson, Joseph N. Ferdenzi and Peter D. Coddington of counsel), for respondent in the first above-entitled action.
    I. Defendant’s guilt of manslaughter in the first degree was proved beyond a reasonable doubt. (People v Gray, 86 NY2d 10; People v Hawkins, 11 NY3d 484; People v Finch, 23 NY3d 408; People v Contes, 60 NY2d 620; People v Malizia, 62 NY2d 755; People v Scarborough, 49 NY2d 364; People v Bleakley, 69 NY2d 490; People v Jones, 73 NY2d 427.) II. The trial court properly allowed Detective Bart Snyder to testify about an out-of-court statement to explain his pre-arrest investigation; in any event, any possible error was harmless. (People v Hawkins, 11 NY3d 484; People v Kello, 96 NY2d 740; People v Winkler, 71 NY2d 592; People v Belge, 41 NY2d 60; People v Nieves, 67 NY2d 125; People v Edwards, 47 NY2d 493; People v Tosca, 98 NY2d 660; People v Till, 87 NY2d 835; Pointer v Texas, 380 US 400; Crawford v Washington, 541 US 36.) III. Defense counsel never requested that the trial court issue a limiting instruction with respect to an out-of-court statement; in any event, the lack of an instruction was harmless. (People v Hawkins, 11 NY3d 484; People v Kello, 96 NY2d 740; People v Robinson, 36 NY2d 224; People v Resek, 3 NY3d 385; People v Tosca, 98 NY2d 660; People v Crimmins, 36 NY2d 230; People v Ahmed, 66 NY2d 307; People v Baker, 14 NY3d 266.)

      Robert S. Dean, Center for Appellate Litigation, New York City (.Abigail Everett of counsel), for appellant in the second above-entitled action.
    Evidence that the police had identified appellant as a “specific suspect” hours before he was identified by prosecution witness Lennon Carrasco was inadmissible, even as “background” evidence, because it clearly signaled that a non-testifying declarant had implicated appellant, in violation of his right to confront this accuser, and was particularly prejudicial in this one-witness identification case. (Crawford v Washington, 541 US 36; Ohio v Roberts, 448 US 56; Jones v Basinger, 635 F3d 1030; California v Green, 399 US 149; People v Duhs, 16 NY3d 405; Ryan v Miller, 303 F3d 231; Ocampo v Vail, 649 F3d 1098; Mason v Scully, 16 F3d 38; Tennessee v Street, 471 US 409; People v Reynoso, 2 NY3d 820.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Alice Wiseman and Eleanor J. Ostrow of counsel), for respondent in the second above-entitled action.
    Defendant’s confrontation rights were not violated. (Crawford v Washington, 541 US 36; People v Kello, 96 NY2d 740; People v Gray, 86 NY2d 10; People v Goode, 87 NY2d 1045; People v Martin, 50 NY2d 1029; People v Hawkins, 11 NY3d 484; People v Belge, 41 NY2d 60; People v Clarke, 81 NY2d 777; People v Boyd, 58 NY2d 1016; People v Love, 57 NY2d 1023.)
   OPINION OF THE COURT

Fahey, J.

From these otherwise unrelated criminal appeals arises the question whether the introduction of purported “background and narrative” evidence through the testimony of police detectives violated defendants’ right to confrontation.

People v Garcia

At approximately 8:30 p.m. on August 20, 2005, Michael Colon was shot to death following a streetside argument. With respect to that incident defendant was charged by indictment with, inter alia, one count each of murder in the second degree (Penal Law § 125.25 [1]) and manslaughter in the first degree (§ 125.20 [1]).

Although there were approximately 15 people in the area of the argument, only one eyewitness testified at the ensuing jury trial. On direct examination the eyewitness recalled that, during an argument he was having with Colon, defendant pointed a gun at Colon and fired three to four shots at him. The eyewitness ran to her automobile after the first shot was fired but, in the meantime, she observed that Colon had grabbed his chest and fallen to the “floor.” The eyewitness acknowledged that she was contacted by the police nearly two years after the shooting, on June 19, 2007. On that date the eyewitness identified defendant as the shooter in a lineup.

The lineup was the second police attempt to have the eyewitness identify the shooter. Cross-examination revealed that, a few days after the shooting, the eyewitness went to a precinct house, whereupon police showed her a photo array. The eyewitness did not identify defendant’s photograph in that array, and she explained that “in the pictures” defendant “looked different” from how he appeared in person. The eyewitness stated that she declined to identify the shooter because she was “more comfortable seeing . . . the person in person because in the picture they looked different,” and she was fearful of identifying the wrong person.

The People’s case turned to the police investigation of the shooting and the testimony of the lead detective. The detective initially noted that the police did not make an arrest in 2005 or 2006. He then described an August 21, 2005 meeting he had with Colon’s sister. Over defendant’s general objection, the prosecutor engaged the detective in this exchange:

“Q. And without telling us specifically what you talked about, . . . did [Colon’s sister] assist you in your investigation of this case?
“A. Yes, she did.
“Q. And did she tell you whether [Colon] was having a problem with anyone in particular?
“A. Yes, she did.
“Q. Who was that? . . .
“A. [Defendant].”

The detective further testified that Colon’s sister had also told him that defendant and Colon had known each other for “quite a while.” Defendant objected that “fw]e don’t have that witness here.” The court overruled the objection. That testimony preceded the detective’s explanation of the police investigation of the shooting, which culminated in the arrest of defendant on June 19, 2007.

The People’s case established that Colon was killed by a single gunshot. The People, however, had neither the gun at issue nor any physical evidence linking defendant to the shooting. Consequently, their case hinged on the eyewitness’s identification of the shooter and the hearsay testimony of the detective as to the reported strife between Colon and defendant. At a charge conference the court denied defendant’s motion seeking either the striking of the detective’s testimony as to conflict between defendant and Colon or, in the alternative, the delivery of an instruction directing the jury to disregard that testimony on the ground that it was “pure hearsay.” The jury convicted defendant of manslaughter in the first degree (Penal Law § 125.20 [1]).

On appeal, the Appellate Division declined to disturb the conviction, concluding, in relevant part, that defendant’s objection to the disputed parts of the detective’s testimony “did not preserve [defendant’s] Confrontation Clause claim” and, in the alternative, that there was “no Confrontation Clause violation . . . because the evidence was admissible for a legitimate purpose other than its truth” (113 AD3d 553, 554 [2014]). After acknowledging that the trial court should have given a limiting instruction with respect to the disputed testimony, the Appellate Division also concluded that “any error in receiving the evidence or in failing to deliver [such an] instruction was harmless, because neither the evidence nor the absence of an instruction could have affected the verdict” (id.). A Judge of this Court granted leave to appeal (22 NY3d 1198 [2014]). We now reverse and order a new trial.

People v DeJesus

During the early morning hours of June 9, 2006, Julio Montez was shot to death following a dispute outside a neighborhood bar. Defendant was charged by indictment with one count of murder in the second degree (Penal Law § 125.25 [1]).

At a pretrial motion in limine the People sought to introduce evidence that Montez’s family had called the police 12 hours after the shooting to report their receipt of an anonymous phone call identifying the shooter as a person named “Joshua” who lived with his grandparents at a certain Manhattan address. According to the prosecutor, that information was relevant not for the truth of the matter asserted, but to show “why the police focused in on . . . defendant and how they came to put his photo in a photo array, how they came to show it to witnesses, [and how] defendant was a suspect from the day the actual homicide took place.” Following defendant’s point that such evidence would be purely prejudicial, the court ruled that the prosecutor could ask, “based on your investigation on that day, did you have a suspect in mind,” without mention of the subject phone call.

The matter subsequently proceeded to a jury trial where, similar to Garcia, the identification of defendant as the shooter was premised upon the testimony of a single eyewitness. In this case, that eyewitness, a longtime friend of Montez, testified as to having frequently seen defendant “hanging out” in the neighborhood in which Montez, the eyewitness, and defendant lived. He also saw defendant shoot Montez following the tavern quarrel. The shooting occurred at approximately 3:45 a.m. on June 9, 2006. The eyewitness called 911 for medical and police assistance. Montez died at a hospital approximately two hours later.

A police detective obtained a list of the telephone numbers that were used to call 911 concerning the shooting. Using the list, that detective contacted the eyewitness at about 4:50 a.m. on the morning of the shooting. At that point, the frightened eyewitness did not want to be “involved” in the matter. He told the detective that he did not see the shooting and made no mention of defendant’s presence at the scene of that incident.

At least two more detectives became involved in the investigation of the shooting later that morning, and one of those detectives eventually interviewed the eyewitness at approximately 7:00 p.m. on the evening of that incident. At that juncture the eyewitness gave a physical description of the shooter and indicated that he could identify the shooter, whom he recognized from the neighborhood. Then, at approximately 10:00 p.m. that evening, the eyewitness was shown a photo array from which he identified defendant as the shooter.

The means by which the police identified defendant as a suspect are at the core of our inquiry here. Over defendant’s objection, the detective who conducted the 7:00 p.m. interview testified in this colloquy that he began to look for defendant at 4:00 p.m. on the afternoon of the shooting as a result of that detective’s investigatory work and without having spoken to the eyewitness:

“Q. Did there come a time ... on June 9th of 2006 that you were looking for a specific suspect relating to the shooting death of [Montez]? . . .
“A. Yes ... .
“Q. And what was the name of the person you were looking for? . . .
“A. [Defendant]. . . .
“Q. And I may have asked you this: What time on June 9th did you begin specifically looking for a person by the name of [defendant]? . . .
“A. 4:00 P.M.
“Q. And without telling us specifically, was that as a result of your investigation that you began looking for . . . defendant . . . ?
“A. Yes ... .
“Q. And at the point that you had a specific suspect that you were looking for in connection with the shooting [death] of [Montez], had you spoken to [the eyewitness]?
“A. No . . . .”

Defendant later moved for a mistrial based on the foregoing testimony, contending that it violated his right to confrontation insofar as it amounted to an unsworn statement from an anonymous source identifying defendant as the shooter. The court ultimately denied the motion, and by then the jury had returned a verdict convicting defendant of murder in the second degree (Penal Law § 125.25 [1]).

The Appellate Division affirmed, concluding, inter alia, that the “brief, limited testimony that defendant was already a suspect at the time the [eye]witness was interviewed did not violate the Confrontation Clause” inasmuch as that “evidence was not offered for its truth, but for the legitimate nonhearsay purposes of[, inter alia,] completing the narrative, explaining police actions, providing the context of the [police] interview [of the eyewitness], . . . and preventing jury speculation” (105 AD3d 476, 476 [2013] [citation omitted]). A Judge of this Court granted leave to appeal (22 NY3d 1198 [2014]). We now affirm.

Analysis

L

“Under the Sixth Amendment of the Federal Constitution and article I, § 6 of the State Constitution, a criminal defendant has the right to be confronted with the witnesses against him or her (see US Const Amend VI; NY Const, art I, § 6; Delaware v Van Arsdall, 475 US 673, 678 [1986]; People v Rawlins, 10 NY3d 136, 146 [2008])” (People v Smart, 23 NY3d 213, 219 [2014]).

Indeed, the Federal Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial,” unless that witness was unavailable to testify and the defendant had a prior opportunity to cross-examine him or her (Crawford v Washington, 541 US 36, 53-54 [2004]; see People v Pealer, 20 NY3d 447, 453 [2013], cert denied 571 US —, 134 S Ct 105 [2013]). “[A] statement will be treated as testimonial only if it was ‘procured with a primary purpose of creating an out-of-court substitute for trial testimony’ ” (Pealer, 20 NY3d at 453, quoting Michigan v Bryant, 562 US 344, 358 [2011]) and, “[i]f a different purpose underlies its creation, the issue of admissibility of the statement is subject to federal or state rules of evidence” (Pealer, 20 NY3d at 453). Our precedent teaches that “two factors . . . are ‘especially important’ in resolving whether to designate a statement as testimonial— ‘first, whether the statement was prepared in a manner resembling ex parte examination and second, whether the statement accuses defendant of criminal wrongdoing’ ” (id., quoting People v Rawlins, 10 NY3d 136, 156 [2008], cert denied sub nom. Meekins v New York, 557 US 934 [2009]). “[T]he ‘purpose of making or generating the statement, and the declarant’s motive for doing so,’ also ‘inform [those] two interrelated touchstones’ ” (Pealer, 20 NY3d at 453, quoting Rawlins, 10 NY3d at 156).

But this is not to say that testimonial statements are invariably intolerable at trial. The Federal Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted” (Crawford, 541 US at 59-60 n 9, citing Tennessee v Street, 471 US 409, 414 [1985]). Moreover, subject to the exercise of a court’s discretion, otherwise inadmissible evidence that “provide[s] background information as to how and why the police pursued and confronted [a] defendant” (People v Tosca, 98 NY2d 660, 661 [2002]) may be admitted to help a jury understand a case in context “if the evidence’s probative value in explaining the [pursuit] outweighs any undue prejudice to the defendant,” and if the evidence is accompanied by a “ ‘proper limiting instruction ]’ ” (People v Morris, 21 NY3d 588, 596 [2013], quoting People v Resek, 3 NY3d 385, 389 [2004]). We now apply those principles to the facts before us.

IL

Garcia’s contention with respect to the alleged violation of his confrontation rights is preserved for our review (see CPL 470.05 [2]), and it has merit. In Garcia, the detective’s testimony as to his conversation with Colon’s sister went beyond the permissible bounds of “providing] background information as to how and why the police pursued . . . defendant” (Tosca, 98 NY2d at 661). The detective’s remark that Colon’s sister had said that there was friction between defendant and Colon indisputably was a testimonial statement inasmuch as it was procured for the primary purpose of creating an out-of-court substitute for the testimony of Colon’s sister regarding that discord (see generally Pealer, 20 NY3d at 453). The testimony as to that friction, which arguably gave a motive for the shooting, exceeded that which was necessary to explain the police pursuit of defendant. It should not have been countenanced by the trial court. Inasmuch as Garcia turned on the identification of defendant by a single eyewitness, who was not well-acquainted with defendant and who did not identify him until two years after the crime, we cannot conclude that the error in admitting that testimony in evidence is harmless (see generally People v Eastman, 85 NY2d 265, 277-278 [1995]; cf. People v Kello, 96 NY2d 740, 744 [2001]).

Even assuming, arguendo, the detective’s statements as to the discord between defendant and Colon merely provided background as to the police pursuit of defendant and were properly admitted in evidence for that purpose, reversal would still be required. It is obvious, if not uncontested, that the subject testimony should have been tempered by a “ ‘proper limiting instruction[ ]’ ” (Morris, 21 NY3d at 596, quoting Resell, 3 NY3d at 389). In the absence of a curative instruction the prosecutor offered what we characterize here as a curative argument on summation. Specifically, the prosecutor contended that the detective’s testimony as to what Colon’s sister had said that Colon had told her was not “introduced for the truth of the matter asserted.” That argument, however, is no substitute for a proper curative or limiting charge inasmuch as “ ‘[arguments of counsel cannot substitute for instructions by the court’ ” (Carter v Kentucky, 450 US 288, 304 [1981], quoting Taylor v Kentucky, 436 US 478, 488-489 [1978]).

In any event, under the circumstances of this case, the failure to temper that testimonial evidence with a proper curative instruction is not harmless even under the standard applicable to non-constitutional harmless error (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).

III.

People v DeJesus presents different circumstances. There, when asked whether there came a time on June 9, 2006 when the police began to look for a specific suspect in relation to the death of Montez, the subject detective merely agreed that the police “beg[a]n specifically looking for [defendant]” at 4:00 p.m. that afternoon without having “spoken to [the eyewitness].” There is no basis to characterize that statement as testimonial — it simply is not an out-of-court substitute for trial testimony (see Pealer, 20 NY3d at 453). We thus conclude that there is no merit to defendant’s contention that his confrontation rights were violated.

Further, we conclude that Dejesus is not a case in which there was an inferential breach of defendant’s confrontation rights. The United States Court of Appeals for the Second Circuit has ruled that “[t]he relevant question [in determining whether testimony contains an implicit accusation and thus is testimonial] is whether the way the prosecutor solicited the testimony made the source and content of the conversation clear” (Ryan v Miller, 303 F3d 231, 250 [2d Cir 2002]; see United States v Dukagjini, 326 F3d 45, 56-57 [2d Cir 2003]). Even assuming, arguendo, that the Ryan litmus test applies here, we conclude that there was no violation of defendant’s confrontation rights. Defense counsel’s point at trial that the disputed testimony gave the “clear implication” that “some unknown anonymous caller said [defendant] must have been the suspect” is mere supposition. Moreover, defendant’s reiteration on appeal of his point at trial that the subject evidence “clearly stands for the proposition [that] somebody told [the detective] to look for [defendant] because [defendant] was the shooter before someone spoke to [the eyewitness]” is similarly misplaced.

Accordingly, the order of the Appellate Division in People v Garcia should be reversed and a new trial ordered, and the order of the Appellate Division in People v DeJesus should be affirmed.

Pigott, J.

(concurring). I disagree with my colleagues in People v Garcia to the extent that they hold that the trial court erred, as a matter of law, in admitting the detective’s testimony regarding his conversation with Colon’s sister.

The detective’s testimony, which did not go into any of the specific details of his conversation with Ms. Colon, was necessary to explain to the jury how the detective came to focus on defendant during his nearly two-year investigation (see People v Till, 87 NY2d 835, 837 [1995]). Under certain circumstances, and when coupled with proper limiting instructions, testimony of this kind may fill in gaps of “interwoven events” (id.) and thus, help the jury understand the case in context.

Without the detective’s very brief testimony of Ms. Colon’s account that there was a “problem” between defendant and Mr. Colon, there would have been no explanation for why the detective included defendant in the initial photo array or spent two years looking for him. The jury would have been left to speculate over an obvious gap in the narrative.

I agree, as both defense counsel and the prosecutor requested, that a limiting instruction should have been given to explain the testimony’s limited purpose. As my colleagues recognize, the testimony arguably suggested to the jury a motive for the shooting and the court’s failure to give that limiting instruction was not harmless.

In People v Garcia: Order reversed and a new trial ordered.

Opinion by Judge Fahey. Chief Judge Lippman and Judges Rivera, Abdus-Salaam and Stein concur; Judge Pigott concurs in result in a separate opinion in which Judge Read concurs.

In People v DeJesus: Order affirmed.

Opinion by Judge Fahey. Chief Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Salaam and Stein concur.

      . Crawford, interpreted the Federal Confrontation Clause, but the Federal and State Confrontation Clauses are “virtually identical” (People v Bradley, 8 NY3d 124, 126 [2006]). The federal clause states that “[i]n all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him” (US Const Amend VI), while the state clause provides that “ [i] n any trial in any court whatever the party accused shall ... be confronted with the witnesses against him or her” (NY Const, art I, §6).

      . We note that, even if defendant’s constitutional contention is unpreserved, as the People suggest, we would reach the same result with respect to the merits based on our state evidentiary hearsay rules.

      . Garcia also contends that the evidence is legally insufficient to support his conviction, but that contention is not preserved for our review (see People v Gray, 86 NY2d 10, 19 [1995]).

      . In so concluding, we note that, as we read the record and his main brief, defendant articulated on appeal contentions with respect to both the Federal and State Confrontation Clauses that are preserved for our review (see CPL 470.05 [2]).


author: Stein, J. Chief Judge Lippman

text:
    [30 NE3d 154, 7 NYS3d 263]
    Marc A. Nicometi, Appellant-Respondent, v The Vineyards of Fredonia, LLC, et al., Respondents-Appellants, et al., Defendants. Scott Pfohl, Third-Party Plaintiff, and Winter-Pfohl, Inc., Third-Party Plaintiff-Respondent-Appellant, v Western New York Plumbing-Ellicott Plumbing and Remodeling Co., Inc., Third-Party Defendant-Respondent-Appellant.
    Argued February 11, 2015;
    decided April 2, 2015

      POINTS OF COUNSEL

      Michael J. Hutter, Jr., Albany, and The Ballow Law Firm, P.C., Buffalo (John E. Ballow and Jason A. Richman of counsel), for appellant-respondent.
    I. A prima facie case of entitlement to summary judgment on liability pursuant to Labor Law § 240 (1) has been established by the appellant-respondent. (Joblon v Solow, 91 NY2d 457; Rocovich v Consolidated Edison Co., 78 NY2d 509; Runner v New York Stock Exch., Inc., 13 NY3d 599; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Klein v City of New York, 89 NY2d 833; Panek v County of Albany, 99 NY2d 452; Thompson v St. Charles Condominiums, 303 AD2d 152; Aragon v 233 W. 21st St., 201 AD2d 353; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280.) II. Respondents-appellants, in response to appellant-respondent’s prima facie demonstration of entitlement to judgment, have failed to raise any question of fact material to the determination of liability under Labor Law § 240 (1). (Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d 974; Klein v City of New York, 89 NY2d 833; Ferra v County of Wayne, 147 AD2d 964; Jiminez v Nidus Corp., 288 AD2d 123; Melber v 6333 Main St., 91 NY2d 759; Salazar v Novalex Contr. Corp., 18 NY3d 134; Matos v Garden State Brick Face of Middle Vil., 272 AD2d 70; Rocovich v Consolidated Edison Co., 78 NY2d 509; Gordon v Eastern Ry. Supply, 82 NY2d 555; Stolt v General Foods Corp., 81 NY2d 918.)

      Kennedy Shelton Liptak Nowak LLP, Buffalo (Robert D. Leary of counsel), for Winter-Pfohl, Inc., respondent-appellant.
    I. Plaintiffs accident falls outside the scope of Labor Law § 240 (1) because the accident was not the result of an elevation-related risk but, rather, it was the result of a separate and unrelated hazard, namely, ice on the floor. (Narducci v Manhasset Bay Assoc., 96 NY2d 259; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Rocovich v Consolidated Edison Co., 78 NY2d 509; Melber v 6333 Main St., 91 NY2d 759; Matos v Garden State Brick Face of Middle Vil., 272 AD2d 70; McNabb v Oot Bros., Inc., 64 AD3d 1237; Russell v Widewaters S. Bay Rd. Assoc., 289 AD2d 1025; Runner v New York Stock Exch., Inc., 13 NY3d 599; Cohen v Memorial Sloan-Kettering Cancer Ctr., 11 NY3d 823; Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914.) II. If the lower courts properly concluded that plaintiffs fall was the result of an elevation-related risk for which Labor Law § 240 (1) provides protection, then there is still a triable issue of fact whether plaintiff was a recalcitrant worker, or whether his actions were the sole proximate cause of his injuries. (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Weinberg v Alpine Improvements, LLC, 48 AD3d 915; Arigo v Spencer, 39 AD3d 1143; Taglioni v Harbor Cove Assoc., 308 AD2d 441; Miller v C.O. Falter Constr. Corp., 226 AD2d 1110; Duda v Rouse Constr. Corp., 32 NY2d 405; Hajderlli v Wiljohn 59 LLC, 71 AD3d 416; Weininger v Hagedorn & Co., 91 NY2d 958; Andrews v Ryan Homes, Inc., 27 AD3d 1197; Thome v Benchmark Main Tr. Assoc., LLC, 86 AD3d 938.)

      Barth Sullivan Behr, Buffalo (Laurence D. Behr of counsel), for The Vineyards of Fredonia, LLC, respondent-appellant.
    I. This Court should reverse the holding that Labor Law § 240 (1) applies to this accident, which resulted from a slip on ice while wearing stilts. (Melber v 6333 Main St., 91 NY2d 759; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Rocovich v Consolidated Edison Co., 78 NY2d 509; Klein v City of New York, 89 NY2d 833; Gatto v Clifton Park Senior Living, LLC, 90 AD3d 1387; Russell v Widewaters S. Bay Rd. Assoc., 289 AD2d 1025; McNabb v Oot Bros., Inc., 64 AD3d 1237; Garcia v Mt. Airy Estates, Inc., 35 Misc 3d 1208[A], 2012 NY Slip Op 50615 [U]; Gonzalez v Majestic Fine Custom Home, 2012 NY Slip Op 31466 [U]; Matos v Garden State Brick Face of Middle Vil., 272 AD2d 70.) II. The lower court correctly held there is a factual issue as to whether the plaintiffs own conduct was the sole proximate cause of his accident, applying Blake v Neighborhood Hous. Servs. of N.Y. City (1 NY3d 280 [2003]). (Robinson v East Med. Ctr., LP, 6 NY3d 550; Andrews v Ryan Homes, Inc., 27 AD3d 1197; Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757; Wonderling v CSX Transp., Inc., 34 AD3d 1244; Thome v Benchmark Main Tr. Assoc., LLC, 86 AD3d 938.)

      Baxter Smith & Shapiro, P.C., West Seneca (Arthur J. Smith, Sim R. Shapiro and Michael V. McLaughlin of counsel), for Western New York Plumbing-Ellicott Plumbing and Remodeling Co., Inc., third-party respondent-appellant.
    I. Labor Law § 240 (1) does not apply to this matter as it does not extend to protecting a worker against the hazard of slipping on ice, as that is not an elevation-related risk. (Narducci v Manhasset Bay Assoc., 96 NY2d 259; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Cohen v Memorial Sloan-Kettering Cancer Ctr., 11 NY3d 823; Rocovich v Consolidated Edison Co., 78 NY2d 509; Melber v 6333 Main St., 91 NY2d 759; Russell v Widewaters S. Bay Rd. Assoc., 289 AD2d 1025; McNabb v Oot Bros., Inc., 64 AD3d 1237; Matos v Garden State Brick Face of Middle Vil., 272 AD2d 70.) II. If it is determined that Labor Law § 240 (1) applies, there is still a triable issue of fact as to whether plaintiff was the sole proximate cause of his injuries. (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Duda v Rouse Constr. Corp., 32 NY2d 405; Weininger v Hagedorn & Co., 91 NY2d 958; Andrews v Ryan Homes, Inc., 27 AD3d 1197; Thome v Benchmark Main Tr. Assoc., LLC, 86 AD3d 938; Gordon v Eastern Ry. Supply, 82 NY2d 555; Buckley v J.A. Jones/GMO, 38 AD3d 461; Danielewicz v Klewin Bldg. Co., Inc., 39 AD3d 1194; Hamill v Mutual of Am. Inv. Corp., 79 AD3d 478; Petrocelli v Tishman Constr. Co., 19 AD3d 145.)
   OPINION OF THE COURT

Stein, J.

In this personal injury action, we are called upon to determine whether Labor Law § 240 (1) applies where plaintiff sustained injuries after he slipped on ice and fell to the floor while using stilts to install insulation in a ceiling. Because we conclude that plaintiffs accident does not fit within the ambit of Labor Law § 240 (1), we modify the Appellate Division order on that ground.

L

One morning in January 2006, plaintiff Marc Nicometi, a construction worker, was installing insulation in the ceilings of a newly constructed apartment building development in the Village of Fredonia. Defendant The Vineyards of Fredonia, LLC owned the premises upon which plaintiff was working. The Vineyards was, in turn, co-owned by defendant Thomas Whitney and certain nonparties. The Vineyards hired defendant Winter-Pfohl, Inc., partially owned by defendant Scott Pfohl, as the general contractor for the construction project. Winter-Pfohl subcontracted the insulation work to plaintiffs employer, 84 Lumber.

To complete his installation task, plaintiff wore stilts that elevated his feet above the concrete floor in order for him to reach the 9- to 10-foot-high ceiling. According to plaintiff, the accident occurred when he stepped forward with one foot, while swinging a hammer tacker above his head to affix insulation between the ceiling rafters, and slipped on a thin patch of ice. Plaintiff testified at his deposition that, prior to falling, he was aware that ice and water had accumulated on parts of the floor, and he claimed to have so informed his supervisor, Raymond Hilliker. Plaintiff asserted that Hilliker instructed him to complete the installation despite the presence of ice. Hilliker, by contrast, testified that he — not plaintiff — first noticed the ice, and that he directed plaintiff not to insulate the ceiling above the icy area.

Plaintiff subsequently commenced this action, asserting common-law negligence and Labor Law §§ 200, 240 (1) and 241 (6) claims against each aforementioned defendant. WinterPfohl and Scott Pfohl later commenced a third-party action seeking indemnification or contribution from Western New York Plumbing-Ellicott Plumbing and Remodeling Co., Inc., the plumbing subcontractor that worked on the premises. Following discovery, plaintiff moved for partial summary judgment on liability with respect to his Labor Law § 240 (1) cause of action. Winter-Pfohl and Scott Pfohl cross-moved for summary judgment dismissing plaintiffs section 240 (1) claim against Winter-Pfohl and the action in its entirety as asserted against Scott Pfohl, individually. In support of its cross motion, WinterPfohl argued that plaintiff was not entitled to the protections of section 240 (1) because his injuries were caused by ice, not an elevation-related hazard. Although The Vineyards and Whitney opposed plaintiffs motion and supported Winter-Pfohfs cross motion, they did not cross-move for summary judgment. Western New York Plumbing opposed all pending motions as premature.

Supreme Court granted plaintiff summary judgment with regard to liability on the Labor Law § 240 (1) claim as against The Vineyards and Winter-Pfohl, denied Winter-Pfohfs cross motion seeking dismissal of same, and granted Scott Pfohl’s cross motion, thereby dismissing him from the action completely. In so holding, Supreme Court determined that section 240 (1) applied because plaintiffs accident resulted from an elevation-related risk as contemplated by the statute. The court further concluded that no questions of fact existed regarding whether plaintiffs actions were the sole proximate cause of his injuries, despite Hilliker’s alleged instruction that plaintiff refrain from insulating the ceiling above the ice. The Vineyards, Winter-Pfohl, and Western New York Plumbing (collectively, defendants) appealed, each contending that Labor Law § 240 (1) did not apply.

The Appellate Division, with two Justices dissenting, modified Supreme Court’s order by denying plaintiffs motion for partial summary judgment and, as so modified, affirmed (107 AD3d 1537, 1538 [4th Dept 2013]). The Appellate Division majority and dissent agreed that Labor Law § 240 (1) covered plaintiffs accident (see id. at 1538-1539). The Court reasoned that the accident implicated section 240 (1) because the stilts elevating plaintiff “ ‘failed’ ” as he performed the insulation work, and it therefore concluded that Winter-Pfohfs cross motion for partial summary judgment was properly denied (id. at 1538, quoting Melber v 6333 Main St., 91 NY2d 759, 763-764 [1998]). The Court split, however, on the issue of proximate cause, with the majority holding that questions of fact existed regarding whether plaintiffs actions were the sole proximate cause of his injuries (see 107 AD3d at 1539), and the dissent positing that plaintiff was entitled to summary judgment in his favor (see id. at 1539-1541).

The Appellate Division granted defendants and plaintiff leave to appeal and cross-appeal, certifying the question whether its order was properly made (109 AD3d 1220 [4th Dept 2013]). For the reasons that follow, we answer the certified question in the negative, and modify the Appellate Division order accordingly.

IL

Defendants argue that the courts below erred in holding that Labor Law § 240 (1) applies here. According to defendants, plaintiffs accident was not the result of an elevation-related risk but, rather, was the result of an ordinary construction site danger — the presence of ice — which is not the type of injury covered by the statute. Defendants contend that our resolution of this appeal is controlled by our rejection of section 240 (1) liability in Melber v 6333 Main St. (91 NY2d 759 [1998]), which they claim is virtually indistinguishable. We agree.

Pursuant to Labor Law § 240 (1), owners and contractors engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure,” except certain owners of one- and two-family dwellings, must “furnish or erect . . . scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person” employed in the performance of such labor. Section 240 (1) aims to “protect workers and to impose the responsibility for safety practices on those best situated to bear that responsibility” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]; see Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [1985]). To achieve that goal, the statute “imposes absolute liability where the failure to provide [proper] protection is a proximate cause of a worker’s injury” (Fabrizi v 1095 Ave. of the Ams., L.L.C., 22 NY3d 658, 662 [2014]; see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011]).

Nevertheless, it is settled that “the extraordinary protections of the statute in the first instance apply only to a narrow class of dangers” (Melber, 91 NY2d at 762; see Cohen v Memorial Sloan-Kettering Cancer Ctr., 11 NY3d 823, 825 [2008]; Toefer v Long Is. R.R., 4 NY3d 399, 407-408 [2005]). More specifically, Labor Law § 240 (1) relates only to “special hazards” presenting “elevation-related risk[s]” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]; see Wilinski, 18 NY3d at 7; Ross, 81 NY2d at 500-501). Liability may, therefore, be imposed under the statute only where the “plaintiffs injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]; see Wilinski, 18 NY3d at 10).

Consequently, the protections of Labor Law § 240 (1) “do not encompass any and all perils that may be connected in some tangential way with the effects of gravity” (Ross, 81 NY2d at 501; see Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]; Berg v Albany Ladder Co., Inc., 10 NY3d 902, 904 [2008]; Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). “Rather, liability [remains] contingent upon the existence of a hazard contemplated in section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein” (Narducci, 96 NY2d at 267; see Berg, 10 NY3d at 904). Moreover, section 240 (1) is not applicable unless the plaintiffs injuries result from the elevation-related risk and the inadequacy of the safety device (see Fabrizi, 22 NY3d at 663; Runner, 13 NY3d at 603; Cohen, 11 NY3d at 825; Narducci, 96 NY2d at 268; Melber, 91 NY2d at 764).

We apply the foregoing principles to determine whether plaintiffs accident invokes the protections of Labor Law § 240 (1); to that end, the parties rightfully focus on our decision in Melber (91 NY2d 759), although they disagree as to its effect here. In Melber, the plaintiff was standing on 42-inch stilts while installing metal studs in the top of a drywall (see id. at 761). The plaintiff walked away from the drywall, without removing his stilts, in order to retrieve a tool (see id.). While walking, the plaintiff “tripped over electrical conduit protruding from the unfinished floor and fell to the ground” (id.). As in this case, we were asked to determine whether the plaintiffs accident fell within the purview of Labor Law § 240 (1) (see id. at 762). We held that it did not, reasoning that

“the conduit is a risk that can [not] be avoided by proper placement or utilization of one of the devices listed in Labor Law § 240 (1). The protective equipment envisioned by the statute is simply not designed to avert the hazard plaintiff encountered here. . . .
“The stilts, moreover, performed the function Labor Law § 240 (1) required of them: allowing plaintiff to safely complete his work at a height. Had they failed while plaintiff was installing the metal studs in the top of the drywall — work requiring the statute’s special protections — a different case would be presented. But here, . . . injury resulted from a separate hazard — electrical conduit protruding from the floor. Even if the stilts failed to avoid that pitfall, plaintiffs injuries allegedly flowed from a deficiency in the device that was wholly unrelated to the hazard which brought about its need in the first instance” {id. at 763-764 [internal quotation marks and citation omitted]).

Thus, while the electrical conduit was certainly a “hazard in the workplace against which employees should be protected,” it was not a “special” elevation-related hazard as contemplated by section 240 (1) (Melber, 91 NY2d at 763).

The dispositive question under Melber is not, as plaintiff contends, whether plaintiff was actively performing a construction task — as compared to retrieving a tool in furtherance of that objective — at the exact moment of his accident (see id. at 763-764; see also Saint v Syracuse Supply Co., 25 NY3d 117, 124-125 [2015] [decided today]; Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 881-882 [2003]). Indeed, while not favorable to plaintiff under the particular facts here, were we to hold that Melber draws a distinction between whether plaintiff was swinging a hammer tacker when he slipped or taking a step forward to retrieve a tool, such a holding would generally be illogical and inconsistent with the purpose and liberal interpretation of section 240 (1) to protect workers (see Prats, 100 NY2d at 881-882). Rather, the relevant and proper inquiry is whether the hazard plaintiff encountered on the stilts was a separate hazard “ ‘ “wholly unrelated to the hazard which brought about [the] need [for a safety device] in the first instance” ’ ” (Melber, 91 NY2d at 764, quoting Ross, 81 NY2d at 501). This is because, regardless of the type of safety device involved, liability arises under Labor Law § 240 (1) only where the plaintiffs injuries are the “direct consequence” of an elevation-related risk (Runner, 13 NY3d at 603; see Fabrizi, 22 NY3d at 662-663), not a separate and ordinary tripping or slipping hazard.

By so holding, we do not “expand [ ]” or “extend” Melber (dissenting op at 102, 103). Indeed, our view of Melber is consistent with, and reinforced by, an examination of our application of this principle in subsequent cases. In Nieves v Five Boro A.C. & Refrig. Corp., where the plaintiff stepped off a ladder with one foot and tripped over a portable light, we held that Labor Law § 240 (1) did not apply because the injury was caused by a “usual and ordinary danger [ ] at [the] construction site,” which was distinct and unrelated to the elevation-related risk that called for the ladder in the first instance (93 NY2d 914, 916 [1999]). More recently, we held that “the presence of two unconnected pipes protruding from a wall” was a “ ‘usual and ordinary danger[ ]’ ” (Cohen, 11 NY3d at 825, quoting Nieves, 93 NY2d at 916). Thus, the plaintiff who tripped over the pipes and fell while descending a ladder was not entitled to “the ‘extraordinary protections of Labor Law § 240 (1)’ ” (Cohen, 11 NY3d at 825, quoting Nieves, 93 NY2d at 915; see Mc-Nabb v Oot Bros., Inc., 64 AD3d 1237, 1239 [4th Dept 2009] [section 240 (1) did not apply where the plaintiff tripped over an electrical cord while working on stilts because injury was not caused by an elevation-related risk]; Russell v Widewaters S. Bay Rd. Assoc., 289 AD2d 1025, 1025 [4th Dept 2001] [same]; Garcia v Mt. Airy Estates, Inc., 35 Misc 3d 1208[A], 2012 NY Slip Op 50615[U], *3 [Sup Ct, Richmond County 2012] [section 240 (1) inapplicable where the plaintiff tripped over “debris” on stilts]).

Here, plaintiffs accident was plainly caused by a separate hazard — ice—unrelated to any elevation risk. Plaintiff testified that stilts were the appropriate device for the type of work that he was undertaking, given the height of this particular ceiling. Plaintiffs testimony further established that it was the ice — not a deficiency or inadequacy of the stilts — that caused his fall. The ice that caused plaintiff to slip is indistinguishable from electrical conduit, a portable light, or protruding pipes, none of which are hazards that call for elevation-related protective devices. As in Melber, “[t]he protective equipment envisioned by the statute is simply not designed to avert the hazard plaintiff encountered” (91 NY2d at 763). Plaintiffs accident was, therefore, not “attributable to” a “risk[ ] arising from construction work site elevation differentials” (Runner, 13 NY3d at 603). Nor did the stilts “fail[ ]” plaintiff by, for example, collapsing or breaking while he performed his task (Melber, 91 NY2d at 763; compare Gatto v Clifton Park Senior Living, LLC, 90 AD3d 1387, 1387 [3d Dept 2011]). Accordingly, Melber is controlling and, inasmuch as the type of injury envisioned by section 240 (1) did not occur here, plaintiff cannot recover under the protections afforded by that statutory provision.

Contrary to plaintiffs contention, our holding in Striegel v Hillcrest Hgts. Dev. Corp. (100 NY2d 974 [2003]) does not mandate a different conclusion. There, the plaintiff slipped on frost and slid down a sloped roof, but was fortuitously stopped from falling to the ground when his pants snagged on protruding nails (see id. at 976). We held that liability could be imposed pursuant to Labor Law § 240 (1) because no safety device had been provided and such a device “could have protected [the plaintiff] from falling as he did” (id. at 978).

Unlike here, the plaintiffs fall in Striegel was caused by an elevation-related risk because his foot slid down an elevation differential, and the pitch of the roof presented a special elevation-related hazard that resulted in the plaintiff ultimately impacting the ridge of the roof and sliding 15 to 20 feet down to the eaves (see id. at 976). This hazard could have been avoided by the use of “toe boards” to provide a flat path for the plaintiff to traverse (id. at 977). The facts of Striegel would be more analogous to those presented here if the plaintiff in that case had been walking on a flat roof, and had slipped and fallen to the surface of that roof (see e.g. Auchampaugh v Syracuse Univ., 57 AD3d 1291, 1293 [3d Dept 2008]; Scharff v Sachem Cent. School Dist. at Holbrook, 53 AD3d 538, 538 [2d Dept 2008]; Favreau v Barnett & Barnett, LLC, 47 AD3d 996, 997 [3d Dept 2008]; Milligan v Allied Bldrs., Inc., 34 AD3d 1268, 1268 [4th Dept 2006]). Likewise, a different case would be presented where a plaintiff slipped on ice while working on elevated scaffolding and fell off the scaffolding due to insufficient guardrail protection.

Plaintiffs reliance on Klein v City of New York (89 NY2d 833 [1996]) and case law concerning the placement of ladders is also unpersuasive. In Klein, the plaintiff sustained injuries when he fell from a ladder that slipped out from underneath him because the floor had recently been flooded with a slick and greasy water, and a “film” or “ ‘gunk’ ” residue remained (id. at 834). There, we noted that Labor Law § 240 (1) “requires that safety devices such as ladders be so ‘constructed, placed and operated as to give proper protection’ to a worker” (id. at 834-835, quoting Labor Law § 240 [1]). Because the defendant had “fail[ed] to ensure the proper placement of the ladder due to the condition of the floor,” plaintiff established a prima facie case of liability under the statute (see id. at 835 [emphasis added]).

However, as we have previously stated, Labor Law § 240 (1) “should be construed with a commonsense approach to the realities of the workplace at issue” (Salazar v Novalex Contr. Corp., 18 NY3d 134, 140 [2011]). Thus, although we are mindful that the statute is to “ ‘ “be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed” ’ ” (Melber, 91 NY2d at 762, quoting Zimmer, 65 NY2d at 521), we are careful not to interpret the statute in an “illogical” manner that “would be impractical and contrary to the very work at hand” (Salazar, 18 NY3d at 140). Unlike ladders, stilts are not “placed” in a stationary position and expected to remain still to ensure their proper and safe use. Rather, stilts are intended to function as extensions of, and move with, the worker during performance of the designated task. Thus, the imposition of liability under section 240 (1) where a ladder slips due to an unsafe condition on the floor in the area where it is placed is distinguishable from the circumstances of plaintiffs accident here (see generally Melber, 91 NY2d at 762).

In sum, plaintiff cannot recover under Labor Law § 240 (1) because his injuries resulted from a slip on ice, which — under these facts — is a separate hazard unrelated to the elevation risk that necessitated the provision of a safety device in the first instance. Moreover, as plaintiff concedes, any alleged violations of the Industrial Code do not establish a violation of Labor Law § 240 (1) (see generally Long v Forest-Fehlhaber, 55 NY2d 154, 160 [1982]; Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 684 [2d Dept 2005]; Blair v Rosen-Michaels, Inc., 146 AD2d 863, 865 [3d Dept 1989]). In light of our determination, we need not address whether the Appellate Division majority properly concluded that questions of fact existed regarding whether plaintiffs actions constituted the sole proximate cause of his injuries.

Accordingly, the order of the Appellate Division should be modified, without costs, by granting defendant Winter-Pfohl’s motion for partial summary judgment dismissing the Labor Law § 240 (1) claim against it and, as so modified, affirmed, and the certified question answered in the negative.

Chief Judge Lippman

(dissenting). The majority would have us believe that while ladders placed on slippery substances present an elevation-related risk, stilts under the same circumstances do not. Because I believe stilts placed on ice create the same “elevation-related risk” as do ladders, I would hold that Labor Law § 240 (1) applies here.

The majority expands Melber v 6333 Main St. (91 NY2d 759 [1998]) by asserting that “were we to hold that Melber draws a distinction between whether plaintiff was swinging a hammer tacker when he slipped or taking a step forward to retrieve a tool, such a holding would generally be illogical and inconsistent with the purpose and liberal interpretation of section 240 (1) to protect workers.” If the majority were true to Melber, plaintiff would prevail because he was installing insulation at a height at the time of his fall.

If there is an inconsistency in Melber, it should be resolved in favor of plaintiff given the statute’s intent. As the Melber Court and the majority here aptly remind us, this Court has “repeatedly recognized” that Labor Law § 240 (1) is to be “construed as liberally as may be for the accomplishment of the purpose for which it was thus framed,” which is “the protection of work[ers] from injury” (Melber, 91 NY2d at 762, quoting Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520-521 [1985]; Quigley v Thatcher, 207 NY 66, 68 [1912]). The legislature intended to “protect [ ] workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor, instead of on workers, who are scarcely in a position to protect themselves from accident” (Zimmer, 65 NY2d at 520 [internal quotation marks and citations omitted]).

Because we are required to interpret the statute liberally to protect workers (Zimmer, 65 NY2d at 520-521), I disagree with the majority’s decision to extend Melber to this case. Melber involved a worker tripping and falling over an electrical conduit in the floor while wearing stilts, which is analogous to other “trip and fall” cases in which this Court has said Labor Law § 240 (1) does not apply, such as where workers descending from ladders trip and fall over an obstruction on the ground, such as a portable light (Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 916 [1999]) or “two unconnected pipes protruding from a wall” (Cohen v Memorial Sloan-Kettering Cancer Ctr., 11 NY3d 823, 825 [2008]). In Nieves, we held that the portable light was a “usual and ordinary danger [ ] at [the] construction site” (93 NY2d at 916).

The majority finds that ice “is indistinguishable from electrical conduit, a portable light, or protruding pipes.” However, when stilts or ladders are placed on top of ice, the combination of the two presents and exacerbates elevation-related risks.

We said as much in Klein v City of New York (89 NY2d 833 [1996]), where this Court reasoned that an owner violated Labor Law § 240 (1) “by failing to ensure the proper placement of the ladder due to the condition of the floor” (id. at 835). The plaintiff fell when a ladder that he had placed in a puddle of “gunk” on the floor slipped underneath him (id. at 834). In a similar case, Bland v Manocherian (66 NY2d 452 [1985]), this Court held that Labor Law § 240 (1) applied where a worker fell through a window when a ladder, which was placed on a “highly polished and shiny” floor, slipped out from under him (id. at 460). Ladders, like stilts, must be moved as the worker moves, and thus placement is equally important for stilts. To the extent the majority indicates that the stilts themselves have to break in order for a plaintiff to make out a Labor Law § 240 (1) claim, that view is contradicted by the language of the statute and by our case law. As Klein and Bland make plain, Labor Law § 240 (1) requires that equipment be so “constructed, placed and operated” as to give proper protection to a worker, and where employers order workers to use stilts or ladders in unsafe places (ordering them essentially to work around a hazard, as occurred here), Labor Law § 240 (1) should apply.

For these reasons, I would not dismiss plaintiffs Labor Law § 240 (1) cause of action.

Judges Read, Pigott, Rivera and Abdus-Salaam concur; Chief Judge Lippman dissents in an opinion; Judge Fahey taking no part.

Order modified, without costs, by granting defendant WinterPfohl, Inc.’s motion for partial summary judgment dismissing the Labor Law § 240 (1) claim against it and, as so modified, affirmed, and certified question answered in the negative.

      . The testimony in the record varies with respect to how high the stilts elevated plaintiff off the floor. Plaintiff claimed that the stilts raised him somewhere between three and five feet off the ground, while Raymond Hilliker, plaintiffs supervisor, testified that the stilts elevated plaintiff by only about 18 inches. Plaintiffs coworker, who was performing the same task on stilts in the room with plaintiff, asserted that both he and plaintiff had their stilts set at the lowest available setting, which he stated was approximately three feet.

      . Although Whitney had not moved for summary judgment, because plaintiff did not oppose his dismissal from the action, the court also dismissed the complaint as asserted against him.

      . The dissent attempts to distinguish plaintiff’s case from the “ ‘trip and fall’ ” cases, in which we have held that Labor Law § 240 (1) does not apply, by asserting that “the combination” of ice and stilts “presents and exacerbates elevation-related risks” (dissenting op at 103). However, the presence of debris or objects on the floor in Melber v 6333 Main St. (91 NY2d 759, 763 [1998]) and Nieves v Five Boro A.C. & Refrig. Corp. (93 NY2d 914, 915 [1999]), like the ice here, amplified the danger inherent in working at an elevated height, but we did not find section 240 (1) to be applicable. That is, it remains the law that the plaintiffs injuries must be caused by an elevation-related risk, “the type of extraordinary peril section 240 (1) was designed to prevent” and not a “usual and ordinary danger! ] at a construction site,” in order to permit recovery under that section (Nieves, 93 NY2d at 916).