author: Chief Judge Lippman.

text:
    [976 NE2d 217, 951 NYS2d 691]
    The People of the State of New York, Respondent, v Donyell J. McKenzie, Appellant.
    Argued May 31, 2012;
    decided June 26, 2012

      POINTS OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (James Eckert of counsel), for appellant.
    The trial court committed reversible error when it refused to charge the jury on the lesser-included offense of manslaughter in the first degree. The trial evidence demonstrated that, upon being laughed at by his paramour and told by her that she had cheated on him, Mr. McKenzie “lost control,” “just snapped” and then stabbed her nearly 50 times, an act which the prosecution admitted supported the inference that he had lost control. (People v Patterson, 39 NY2d 288; People v Casassa, 49 NY2d 668; People v Moye, 66 NY2d 887; People v Roche, 98 NY2d 70; People v Petty, 7 NY3d 277; People v Ortiz, 76 NY2d 446; People v Fardan, 82 NY2d 638; People v Harris, 95 NY2d 316; People v Diaz, 15 NY3d 40; People v Walker, 64 NY2d 741.)

      Sandra Doorley, District Attorney, Rochester (Leslie E. Swift of counsel), for respondent.
    I. The Fourth Department’s affirmance should stand because the denial of defendant’s extreme emotional disturbance jury charge request was not reversible error given his failure to meet his burden of proof to secure the same. (People v Smith, 1 NY3d 610; People v Roche, 98 NY2d 70; People v Walker, 64 NY2d 741; People v Harris, 95 NY2d 316; People v Casassa, 49 NY2d 668; People v Fardan, 82 NY2d 638; People v Patterson, 39 NY2d 288, 432 US 197; People v White, 79 NY2d 900; People v Butts, 72 NY2d 746.) II. CPL 250.10 (2) should apply to disallow an extreme emotional disturbance jury charge in defendant McKenzie’s case. (People v

      Payne, 3 NY3d 266; People v Almonor, 93 NY2d 571; People v Berk, 88 NY2d 257; People v Segal, 54 NY2d 58; People v Diaz, 15 NY3d 40; People v Moye, 66 NY2d 887; People v Gonzalez, 26 Misc 3d 687; People v Hill, 4 NY3d 876.)
   OPINION OF THE COURT

Chief Judge Lippman.

Defendant was convicted of second degree murder upon evidence that he killed Tyffany Porter, his fiancée and paramour of some two years, by inflicting numerous knife wounds. Although he had sought to interpose the affirmative defense that his homicidal acts had been committed under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse (see Penal Law § 125.25 [1] [a]), and upon that theory to afford the jury the option of returning a verdict of manslaughter in the first degree instead of murder (see id.), the trial court refused to charge the defense. While acknowledging that the evidence of the homicide’s manner of commission was indicative of a loss of self control on defendant’s part, the court deemed the charge unwarranted absent proof that defendant suffered from an underlying “mental infirmity.” Thereafter, in affirming defendant’s conviction, the Appellate Division found the denial of the charge proper, concluding that defendant’s “conduct before, during and after the offense [was] inconsistent with the loss of self-control associated with the defense” (81 AD3d 1375 [2011] [internal quotation marks and citation omitted]). A Judge of this Court granted defendant’s application for permission to appeal (17 NY3d 819 [2011]), and we now reverse.

Defendant did not testify or otherwise present evidence. His request for an extreme emotional disturbance charge was based entirely on proof elicited during the People’s case. That proof was that there had been a heated argument between defendant and Ms. Porter secondary to Ms. Porter’s refusal to engage in sexual relations with defendant and her closely ensuing disclosure that she, in retaliation for what she believed had been similar conduct on defendant’s part, had been unfaithful to defendant with one of his friends. During the argument, defendant retrieved a knife from the kitchen of the couple’s apartment, returned to the bedroom, and, as the mutually abusive exchange escalated from words to blows, stabbed Ms. Porter some 47 times, killing her. There was further evidence that, from the scene of the homicide, defendant drove to the home of a friend, Latonya Whitfield, to whom he eventually admitted the stabbing, claiming that he “just snapped.” Whitfield testified that, at the time, defendant appeared “spaced out” and “out of it.” A short time later, defendant called 911 to surrender. In explaining what had happened, he told the dispatcher that he “just lost it” and had “blacked out.”

Defendant made no attempt to conceal what he had done. He left the homicide weapon in open view and when he was taken into custody still had blood on his clothing and shoes. On the way to the police station he admitted that he had “f . . . d up.” He confessed to the stabbing in station house interviews, at one point apparently overcome with emotion, and executed a written statement in which he admitted that he had used the kitchen knife against Ms. Porter. He explained that he was scared, panicked and lost control; Ms. Porter, he said, enraged by suspicions of infidelity, had previously pulled knives on him, slept with a razor under her pillow, and had caused him to lose sight in his left eye when, during a prior altercation, she shattered a window of a car in which he was sitting.

In judging whether to accede to a defendant’s request to charge an affirmative defense, a court is bound to view the evidence in the light most favorable to the defendant (People v Butts, 72 NY2d 746, 750 [1988]), an exercise understood to be incompatible with weighing the evidence to resolve competing inferences (see id.). The charge must be given if there is evidence reasonably supportive of the defense, even if there is other evidence which, if credited, would negate it (id.). We have repeatedly recognized that these general principles are applicable where the defense sought to be charged is that of extreme emotional disturbance (see People v Moye, 66 NY2d 887, 889 [1985]; accord People v Harris, 95 NY2d 316, 320 [2000]; People v White, 79 NY2d 900, 903 [1992]). If, then, the evidence would have permitted defendant’s jury reasonably to conclude by a preponderance (Penal Law § 25.00 [2]) that, at the time of the homicide, he was affected by an extreme emotional disturbance, and that that disturbance was supported by a reasonable explanation or excuse rooted in the situation as he perceived it (see People v Casassa, 49 NY2d 668, 678-680 [1980], cert denied 449 US 842 [1980]), the charge should have been given. Although, it is true, as the Appellate Division evidently found, that the evidence in the aggregate would have permitted the jury to reject defendant’s claim of emotional disturbance and loss of control, it was instead the viability of the alternative, contrary inference—that defendant in fact experienced an emotional break which caused him to “snap”—that should have guided the trial court’s determination of the charge request.

As the trial court recognized, the sheer number and redundancy of the knife wounds inflicted on Ms. Porter was indicative of defendant’s loss of control. The court denied the charge instead upon the ground that there was no proof that defendant had a “mental infirmity that r[ose] short of a mental disease or defect.” But the purpose of this quoted language, as it has been used in our decisions to describe the predicate for an extreme emotional disturbance defense (see People v Patterson, 39 NY2d 288, 302 [1976], affd 432 US 197 [1977]; see also People v Roche, 98 NY2d 70, 75 [2002]), patently was not to tether the defense to proof of an underlying psychiatric disorder; “mental infirmity” in the presently relevant context refers more broadly to any reasonably explicable emotional disturbance so extreme as to result in and become manifest as a profound loss of self-control. We have in fact recognized that the subjective element of the extreme emotional disturbance defense may be inferred simply from circumstances indicative of a loss of control and, concomitantly, that it may be established without psychiatric evidence (People v Roche, 98 NY2d at 76; Moye, 66 NY2d 887, 890 [1985]). In Moye, for example, extreme emotional disturbance was deemed inferable simply from evidence of an uncommonly savage assault together with the victim’s initial sexual taunting and the assailant’s closely following admissions, in the course of which he stated that he “snapped” and “went bananas” (66 NY2d at 890 [internal quotation marks omitted]). It is true that in Roche we said that a brutal assault would not itself suffice to demonstrate extreme emotional disturbance (98 NY2d at 77-78). Here, however, as in Moye, the evidentiary predicate for the defense was augmented by inculpatory admissions to third parties, including the police, in which defendant stated that he had “snapped” after the victim rejected his overtures and disclosed her infidelity. There were also reports of defendant’s appearance and demeanor consistent with his having been affectively disturbed in the assault’s near aftermath. Under the circumstances of record, then, the first prong of the defense—that defendant at the time of the assault was subjectively overtaken by an extreme emotional disturbance—was sufficiently made out to support defendant’s charge request.

Whether the evidence also was adequate to support the additionally requisite inference that the situation, as defendant perceived it, reasonably occasioned the emotional response he claims to have experienced, might well be understood to pose a closer question. On the one hand, taunting over sexual matters and disclosures of sexual infidelity in the context of established intimate relationships are historically the most commonly accepted mitigating circumstances for otherwise murderous behavior. On the other hand, this was not a situation in which defendant was ridiculed about impotence or some other potentially humiliating sexual deficit (cf. Moye, 66 NY2d at 888-889) or in which he reacted to the sight of his paramour in flagrante (see e.g. Patterson, 39 NY2d at 291); here, the claimed provocation was perhaps somewhat less obviously volatile. Inasmuch, however, as the relevant inquiry was whether the evidence, viewed most favorably to defendant, presented a triable question, we believe that the issue of the reasonableness of defendant’s explanation should have been put to the jury. Although it did not require it, the evidence plausibly allowed the conclusion that Ms. Porter’s sexual rejection of defendant, together with her closely following abrupt and apparently vengeful disclosure of her infidelity with his friend, precipitated not just ordinary anger or even rage, but an onrush of emotion leaving defendant bereft of self-control. Whether that explanation ultimately was worthy of credit was for the jury to decide based on its appreciation of the entire body of evidence.

A claim of extreme emotional disturbance must, of course, be credibly supported if the defense upon which it rests is to be submitted to the jury (see People v White, 79 NY2d 900, 902-903 [1992], citing Moye, 66 NY2d at 890 n), but that requirement was not intended to cast the trial court in the fact-finding role properly reserved to the jury (see id.). The court’s contemplated gate-keeper function is under our cases limited to excluding claims that are patently insufficient, either by reason of the absence of evidence from which the claimed disturbance might be reliably inferred (see e.g. Roche, 98 NY2d at 77) or for lack of proof of any but a speculative relation between the alleged disturbance and a plausible triggering circumstance (see e.g. id. at 78; People v Walker, 64 NY2d 741, 743 [1984]) or between the disturbance and the defendant’s homicidal acts (see People v White, 79 NY2d at 902-904). This case involved none of these objectively discernible deficiencies. Nor was it one in which the assertion of the defense was an obvious afterthought to avoid a murder conviction, and in that light “incredible.” Here, as noted, the defense was significantly—and a jury might have found authentically—rooted in inculpatory statements closely following the homicide and in third-party observations of defendant’s conduct, appearance and demeanor during that same period.

“The purpose [of the extreme emotional disturbance defense] was explicitly to give full scope to what amounts to a plea in mitigation based upon a mental or emotional trauma of significant dimensions” (Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Colum L Rev 1425, 1446 [1968]; see Casassa, 49 NY2d at 679). The consonant claim made by this defendant was not that his admitted homicidal conduct was excusable, only that it should not be penalized as murder because he acted under the influence of an understandable, traumatically induced emotional disturbance. The question thus framed by defendant’s charge request was not whether defendant should be held criminally responsible for killing Ms. Porter, but whether instead of a conviction for murder, there should be one for first degree manslaughter based on what was for all intents and purposes, a plea in mitigation. Given the evidence in the case, we perceive little danger that a jury in choosing between the highly punitive options occasioned by the proposed defense would have been reduced to speculation. That being so, it was the jury, and not the court, that should in the end have determined the defense’s merit.

The People’s argument that defendant’s failure to afford them GPL 250.10 (2) notice should be preclusive of an extreme emotional disturbance defense, raised for the first time at the Appellate Division, is not preserved for our review (see People v Jones, 85 NY2d 998, 999 [1995]).

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

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

Order reversed, etc.

       As is here pertinent, Penal Law § 125.25 (1) (a) provides that it is an affirmative defense to murder that “[t]he defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be” (emphasis supplied).

        (n. cont’d)


source: Caselaw Access Project

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

license: Public Domain

text:
    [973 NE2d 152, 950 NYS2d 57]
    The People of the State of New York, Respondent, v Zahira Matos, Appellant.
    Argued April 24, 2012;
    decided May 31, 2012

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Margaret E. Knight and Richard M. Greenberg of counsel), for appellant.
    I. As this Court recently held in People v Lewie (17 NY3d 348 [2011]), where Zahira Matos did not engage in any of the actions that led to her son’s death, and where Ms. Matos was neither depraved nor indifferent to the results of Carmen Molina’s abuse of her child, the evidence of depraved indifference was legally insufficient. (People v Danielson, 9 NY3d 342; People v Flint, 66 AD3d 1245; People v Molina, 50 AD3d 493; People v Feingold, 7 NY3d 288; People v Heslop, 48 AD3d 190, 10 NY3d 935; People v Robinson, 278 AD2d 798, 96 NY2d 762; People v Baker, 14 NY3d 266; People v Glover, 57 NY2d 61; People v Alvarez, 38 AD3d 930, 8 NY3d 981; People v Green, 56 NY2d 427.) II. Zahira Matos was denied her constitutional right to present a defense by the court’s improper preclusion of expert testimony and arguments about how Ms. Matos’ long history of domestic abuse impacted upon her ability to leave the relationship with Carmen Molina and protect her children, which would have undermined the prosecution’s contention that Ms. Matos acted with a depraved indifference to human life. (People v Bryant, 278 AD2d 7; People v Gracius, 6 AD3d 222; People v Concepcion, 17 NY3d 192; People v LaFontaine, 92 NY2d 470; De Long v County of Erie, 60 NY2d 296; People v Almonor, 93 NY2d 571; People v Taylor, 75 NY2d 277; People v Florestal, 53 AD3d 164; People v Cronin, 60 NY2d 430; People v Byrd, 51 AD3d 267.) III. Zahira Matos’ conviction must be reversed because the homicide charges, which encompassed a two-month time period, did not provide the defense with proper notice of the prosecution’s theory of the case, thereby preventing the defense from effectively countering the argument that Ms. Matos’ failure to leave Carmen Molina earlier evinced depraved indifference, and creating the risk of a variance between the trial and grand jury evidence. (People v Iannone, 45 NY2d 589; People v Sanchez, 84 NY2d 440; People v Fitzgerald, 45 NY2d 574; People v Lewie, 67 AD3d 1056, 17 NY3d 348; People v Feingold, 7 NY3d 288.) IV Zahira Matos was subjected to custodial interrogation without Miranda warnings; the subsequent questioning at the precinct, during which Miranda warnings were finally provided, constituted a continuous chain of events such that the taint of the initial Miranda violation was never dissipated. Ms. Matos’ later statements to the police were also involuntary, and the physical evidence seized from the apartment was obtained through an illegal search and arrest. (Dickerson v United States, 530 US 428; Miranda v Arizona, 384 US 436; People v Anderson, 42 NY2d 35; People v Harris, 48 NY2d 208; People v Yukl, 25 NY2d 585; People v Hardy, 223 AD2d 839; People v Bailey, 140 AD2d 356; People v Pabon, 120 AD2d 685; People v McIntyre, 138 AD2d 634; People v Chapple, 38 NY2d 112.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Vincent Rivellese and Hilary Hassler of counsel), for respondent.
    I. Defendant’s motion to suppress her statements and the physical evidence seized from her apartment was properly denied. (People v Cruz, 90 NY2d 961; People v Alvaranga, 84 NY2d 985; People v Crimmins, 64 NY2d 1072; Dickerson v United States, 530 US 428; Miranda v Arizona, 384 US 436; Oregon v Mathiason, 429 US 492; People v Berg, 92 NY2d 701; People v Paulman, 5 NY3d 122; People v Harris, 48 NY2d 208; People v Yukl, 25 NY2d 585.) II. The evidence overwhelmingly proved defendant’s guilt of recklessly causing Yovanny’s death, while exhibiting her depraved indifference to his life, by failing to get him medical attention for hours while she knew he had life-threatening injuries. (People v Lewie, 17 NY3d 348; People v Danielson, 9 NY3d 342; People v Bleakley, 69 NY2d 490; People v Romero, 7 NY3d 633; People v Sala, 95 NY2d 254; People v Dekle, 56 NY2d 835; People v Tejeda, 73 NY2d 958; People v Norman, 85 NY2d 609; People v Feingold, 7 NY3d 288; People v Cabey, 85 NY2d 417.) III. The trial court’s denial of defendant’s barebones pretrial request for a ruling admitting expert testimony to explain why defendant did not leave Molina was a sound exercise of discretion; defendant’s more elaborate appellate arguments are unpreserved and also lack merit. (People v Taylor, 75 NY2d 277; People v Lee, 96 NY2d 157; People v Cronin, 60 NY2d 430; People v Brown, 97 NY2d 500; People v Fleming, 70 NY2d 947; People v Russell, 71 NY2d 1016; People v Florestal, 53 AD3d 164; People v Bryant, 278 AD2d 7; People v Crimmins, 36 NY2d 230.) IV The indictment provided defendant with fair notice of the conduct for which she was ultimately convicted. (People v Sanchez, 84 NY2d 440; People v Grega, 72 NY2d 489; People v Keindl, 68 NY2d 410; People v Iannone, 45 NY2d 589; People v D’Angelo, 98 NY2d 733; People v Watt, 81 NY2d 772; People v Fitzgerald, 45 NY2d 574; People v Morris, 61 NY2d 290; People v Ray, 71 NY2d 849; People v Rivera, 84 NY2d 766.)
   OPINION OF THE COURT

Ciparick, J.

We are asked to consider whether the evidence was sufficient to show that defendant possessed the culpable mental state of depraved indifference to human life to warrant a conviction for murder in the second degree as per Penal Law § 125.25 (4) (depraved indifference murder of a child under 11 years old). We hold that the record does not support such a finding and that the conviction for second-degree depraved indifference murder of a child must be vacated.

I

In the early evening hours of September 18, 2004, while defendant was out shopping, defendant’s partner, Carmen Molina, severely beat defendant’s 23-month-old son. In the course of the beating, the child’s leg and several ribs were broken. Additionally, the child suffered injuries to his liver and lungs, which caused severe internal bleeding. When defendant returned home at approximately 7:00 p.m., Molina informed defendant that she would be upset and that her son was injured. Defendant knew at this time her son “was hurt bad.” She claimed that her son had “a bump on his head and one on his leg.” She testified that she did not, however, believe he was “seriously” injured or “that he was going to die.” At Molina’s urging, defendant initially elected not to call for help. Molina told defendant that if they called the police they would both get in trouble and defendant would lose her children. Instead, again at Molina’s request, defendant went to a local pharmacy to purchase a splint for her son’s leg. The pharmacy did not carry splints so defendant purchased ACE bandages, and Molina and defendant created a makeshift splint using the bandages and slats from a crib. After splinting the leg, defendant gave her son some children’s ibuprofen and laid him down to sleep. She claimed that just prior to laying the child down, he said “night night.” After placing the child in bed, defendant smoked a cigarette and then went outside to make some phone calls from a pay phone at a local sandwich shop. Defendant called Molina’s mother and her own mother. She did not mention her child’s condition to either during these phone calls. She returned home and approximately seven hours after she discovered that her child had been severely injured, she claims she heard him whimpering. She picked him up and discovered blood flowing from his rectum. Molina took the child from defendant and ordered defendant to clean up the bloody clothes and sheets. Defendant disposed of them as well as the makeshift splint. Defendant then called the police from a neighbor’s phone. The police and EMS arrived. According to defendant, the child became unresponsive prior to the arrival of EMS. The EMS technicians were unable to revive the child and he was rushed to the hospital. Doctors at the hospital were also unable to revive the child, and he was pronounced dead at 2:26 a.m.

During questioning by the police, defendant provided varying accounts of what had happened to her son. Initially she claimed that her son fell at approximately 9:00 p.m. while she was bathing him. Additionally, she claimed that her son would bang his head against the wall during the night. She subsequently accused the child’s father, who was in Michigan, of using witchcraft and causing the bruises. When confronted by the police that her stories simply could not be true she eventually admitted that Molina had beaten the child and that she had assisted Molina in splinting the leg and attempting to dispose of the bloody clothes and bandages. After being advised of her Miranda rights, defendant executed a written and oral statement confirming that Molina had beaten the child and that defendant had helped to hide the evidence.

The medical evidence presented at trial showed that the child had died from “fatal child abuse syndrome” and had multiple blunt impacts to his head, torso and extremities that fractured his leg and ribs and lacerated his liver. The medical experts at the trial opined that the child would have been in severe pain for several hours before going into shock and that gradually his vital organs would have shut down. Additionally, the medical experts stated that it was unlikely that the child, after suffering these injuries, would have slept peacefully or woken up after having lost consciousness.

Defendant and Molina were arrested and a grand jury returned an indictment charging both women with two counts each of murder in the second degree (Penal Law § 125.25 [2] [depraved indifference murder resulting from conduct creating a grave risk of death] and Penal Law § 125.25 [4] [depraved indifference murder resulting from conduct creating a grave risk of serious injury or death of a child under 11]), and two counts of endangering the welfare of a child with regard to defendant’s older daughter (Penal Law § 260.10 [1], [2]). Defendant and Molina each moved to suppress their statements and evidence seized from their apartment. Supreme Court denied the motions. On April 25, 2007, Molina pleaded guilty to second-degree murder and was sentenced to an indeterminate period of imprisonment of 15 years to life. On January 25, 2008, defendant proceeded to trial before a jury. On February 7, 2008, the jury acquitted defendant of depraved indifference murder, but convicted her of depraved indifference murder of a child and both counts of endangering the welfare of a child. She was sentenced to an indeterminate period of imprisonment of 20 years to life. The Appellate Division affirmed (see People v Matos, 83 AD3d 529 [1st Dept 2011]). A Judge of this Court granted defendant leave to appeal (17 NY3d 808 [2011]) and we now modify by vacating the murder count.

II

We have visited the issue of depraved indifference murder on several occasions. In People v Feingold (7 NY3d 288 [2006]), we explained that “depraved indifference to human life is a culpable mental state” that “is best understood as an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not” (id. at 296, 298 [internal quotation marks omitted], quoting People v Suarez, 6 NY3d 202, 214 [2005]).

The issue presented in this case is similar to the one presented in People v Lewie (17 NY3d 348 [2011]), where we examined the culpable mental state of a mother whose boyfriend fatally abused her child. In Lewie the mother of the decedent brought her child into the hospital where he expired (see id. at 353). At the time of the child’s death he “had injuries consistent with very severe abuse” (id. at 354).

The mother in Lewie was prosecuted on two theories: first that she failed to seek medical attention in the last two or three days of her child’s life, when she knew that her child had life-threatening injuries, and second that she left the child in the care of her boyfriend when she knew that to do so would place the child in danger (see id.). In Lewie we focused on the mother’s decision to leave the child with the boyfriend (see id. at 355). Here, we are focused on defendant’s failure to seek medical attention. While we concede that defendant’s behavior fell egregiously short of what we would expect from an ordinary person, faced with a child in such distress, to say nothing of a mother of said child, it does not rise to the level of “wickedness, evil or inhumanity” so “as to render the actor as culpable as one whose conscious objective is to kill” (Suarez, 6 NY3d at 214). Indeed, while she did, as the Appellate Division found, “placet ] her own interests ahead of her son’s need for emergency treatment” (Matos, 83 AD3d at 531), the People failed to prove that she did not care whether her son lived or died. The evidence showed that she splinted her son’s leg, gave him ibuprofen and exhibited other, albeit woefully inadequate, measures to comfort him. Additionally, when she found him bleeding and unresponsive, she did, in fact, call for help. It is undeniable that this behavior was a quintessential case of far too little, far too late; it does however, demonstrate that while the evidence clearly shows that defendant “cared much too little about her child’s safety, it cannot support a finding that she did not care at all” (Lewie, 17 NY3d at 359). As for the fact that she attempted to conceal the crime, that also does not evince a mental state of depraved indifference. “Trying to cover up a crime does not prove indifference to it” (id. at 360). Thus, the evidence of depraved indifference was legally insufficient, and the conviction for second-degree murder cannot be sustained.

We acknowledge that defendant’s actions here may have come within Penal Law § 125.25 (4) when it was first enacted in 1990. It must be noted, however, that when the Legislature enacted Penal Law § 125.25 (4) “depraved indifference” was not considered to be a mens rea but simply a “definition of the factual setting in which the risk creating conduct must occur” (People v Register, 60 NY2d 270, 276 [1983]). However, in the wake of Feingold and its progeny we are constrained to interpret “depraved indifference” to human life as a culpable mental state which must be proven by the People (see 7 NY3d at 296). That element was not proven in this case. The Legislature may want to consider amending section 125.25 (4) in light of the Feingold decision.

As for defendant’s remaining arguments, we find them to be without merit. We will not speculate, had the evidence been sufficient to sustain a depraved indifference murder of a child conviction, as to whether the preclusion of defense expert witness testimony on the issue of abusive relationships was error, warranting reversal, since the testimony would not have been relevant to the remaining counts. Neither will we opine on whether a proper remedy would be a reduction of the murder count to manslaughter in the second degree or criminally negligent homicide, which were submitted as lesser included counts, but not reached by the jury. We have not yet decided the issue as to whether either crime is a proper lesser included offense of depraved indifference murder of a child (see People v Baker, 14 NY3d 266, 272 [2010]). We therefore dismiss the count of the indictment charging depraved indifference murder of a child, without prejudice to re-presentation of appropriate charges to a new grand jury.

Accordingly, the order of the Appellate Division should be modified by dismissing the count of the indictment charging depraved indifference murder of a child and remitting to Supreme Court for resentencing and, as so modified, affirmed, without prejudice to an application by the People to re-present any appropriate charges to another grand jury.

Pigott, J. (dissenting).

Viewing the evidence in the light most favorable to the People, as we must when reviewing the sufficiency of the evidence when there is a jury verdict in their favor, the facts are these:

At approximately 7:00 p.m. on September 18, 2004, while defendant was out buying beer, defendant’s partner, Carmen Molina, inflicted multiple blows to the tiny frame of defendant’s 23-month-old son, resulting in a broken leg, a “crushing [and extensive] injury” to the left side of his liver (to the point where it was nearly torn from the right side), three broken ribs and bruising to the lungs and diaphragm muscle. When defendant returned and found her child in that condition, heard the accompanying cries and whimpers of pain, did defendant—who was no stranger to the emergency room for herself and her children—call an ambulance? No.

At Molina’s direction, defendant went to a nearby pharmacy and purchased a bandage. Finding this unsatisfactory, Molina broke pieces of wood from a crib and attempted to fashion a splint. According to defendant herself, Molina wrapped the tape so hard that it hurt defendant to hold the wood while it was being taped. With the “splint” now secure, defendant gave her child baby ibuprofen and put him to sleep.

But, according to the medical testimony, defendant’s child was not sleeping. For the next several hours, he lay in agony with “painful injuries,” dying over a “period of . . . hours,” first exhibiting pain through uncontrollable crying, whimpering or moaning. As he gradually went into shock due to the pain and internal bleeding, he would have started panting before losing consciousness. If defendant had lifted her finger to dial three digits, her child could have been saved. According to the People’s medical expert:

“There was a lot that could have been done for this child. First of all, he was in pain. His leg, every time his leg was moved, he felt pain. Every time he tried to breathe, he felt pain. So he could have been treated for the pain . . . They would have opened up his abdomen. They would have stopped the bleeding from the liver, and they would have removed the damaged portion of the liver, and taken out the blood from his abdomen. All of those things would have increased his chances of surviving.”

While her child suffered, defendant smoked and watched television. She went outside and made two phone calls, one to Molina’s mother concerning a birthday present for Molina’s brother, and another to her own mother—never mentioning her child’s condition to either of them. Did she call an ambulance at this point? No. She returned to the apartment and did nothing. In fact, she took no action until 2:00 a.m. when, according to her own testimony, she heard her child “whining” and noticed that he was bleeding from his rectum and sullying the sheets. Did she call the ambulance then? No. Instead, approximately seven hours after the assault, when her son stopped breathing, defendant called 911; but not before she and Molina cleaned the blood from the bathroom floor, removed the splint and disposed of it along with the blood-soaked wipes and some of her child’s blood-stained clothing. When help arrived, they found the child naked, battered and bloodied on a hallway floor—dead. When asked, defendant claimed her son had fallen in the bathtub and that he had a habit of banging his head against the wall when he slept.

In my view, based on the foregoing facts, there was “a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (People v Acosta, 80 NY2d 665, 672 [1993]). And, given this evidence, the jury could have rationally concluded that defendant’s unwillingness to act did not demonstrate that she “cared much too little about her child’s safety” but, rather, that “she did not care at all” (People v Lewie, 17 NY3d 348, 359 [2011]).

The majority reaches a contrary conclusion, stating that defendant “splinted her son’s leg, gave him ibuprofen and exhibited other, albeit woefully inadequate, measures to comfort him,” such that although her attempts to help her child were “far too little, far too late,” that didn’t mean that she was indifferent to his plight (majority op at 476). This, to me, is not construing the evidence in a light most favorable to the People, but, instead, substituting a different set of facts and conclusions for those reached by the jury. The jury could have reached a contrary conclusion but it didn’t. Rather, under these facts, the jury easily concluded that defendant’s “efforts” were part of her attempt to avoid having to take her child to the hospital (thereby potentially implicating herself in her child’s abuse) and not the equivalent of caring “much too little.” Given the medical testimony and defendant’s omissions, there is sufficient evidence here for the jury to have concluded that defendant “did not care at all.”

This case is plainly distinguishable from Lewie. First, the People’s theory in Lewie was that the mother was guilty of reckless endangerment in the first degree for leaving her eight-month-old son with a known abuser during the day over a six-week period. The People’s theory in this case was that defendant was guilty of depraved indifference murder pursuant to Penal Law § 125.25 (4) because she sat idly by while her nearly two-year-old son was dying over a seven-hour period as a result of significant injuries. Second, in Lewie, the baby’s cause of death was a brain injury that was less than four days old, an injury not noticeable to a layperson, and the mother’s conviction for manslaughter in the second degree for failing to seek medical attention was dismissed by the Appellate Division on sufficiency grounds. Here, the evidence showed that the child had significant injuries, showed clear signs of pain and inability to breathe while defendant all but ignored her son, offering no protection whatsoever. Thus, while the mother in Lewie was hardly a sympathetic character, the People in that case failed to prove the critical element of whether she was indifferent to her baby’s plight, whereas in this case, given the extent of the child’s injuries and the insufferable amount of pain he was subjected to over seven hours, the jury could have rationally concluded that defendant did not care at all about his plight, the splint and ibuprofen notwithstanding.

In my view, this is a textbook case of a defendant whose failure to act demonstrated a “wanton cruelty, brutality or callousness directed [at] a particularly vulnerable victim [i.e., her own son], combined with utter indifference to the life or safety of the helpless target” as the result of her omissions (People v Suarez, 6 NY3d 202, 213 [2005]). Because on this evidence the jury could and did rationally conclude that defendant did not care at all about her own child’s plight, I would affirm the order of the Appellate Division.

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

Order modified, etc.

      . Penal Law § 125.25 (2) provides: “Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (emphasis added).
      Penal Law § 125.25 (4) provides: “Under circumstances evincing a depraved indifference to human life, and being eighteen years old or more the defendant recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old and thereby causes the death of that person” (emphasis added).

      . In Lewie the mother was charged with reckless endangerment (Penal Law § 120.25) as opposed to second-degree murder. We stated that because the only difference in the two statutes is that “the murder statute adds the words ‘and thereby causes the death of another person’ ” (id. at 358), and because the child actually did die “we [could not] uphold her reckless endangerment conviction unless we would uphold a murder conviction on the same facts” (id.).

      . In the instant case, while there is evidence that defendant knew that Molina was a danger to her child, the People proceeded only on the theory that defendant failed to act during the last seven hours of the child’s life.

      . The Appellate Division rejected the failure to seek medical attention theory and the People did not pursue that theory in their argument before us (see id.).


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

text:
    [973 NE2d 162, 950 NYS2d 67]
    In the Matter of North Syracuse Central School District, Appellant, v New York State Division of Human Rights, Respondent. In the Matter of Ithaca City School District, Appellant, v New York State Division of Human Rights et al., Respondents.
    Argued May 2, 2012;
    decided June 12, 2012

      POINTS OF COUNSEL

      Law Firm of Frank W. Miller, East Syracuse (Frank W. Miller and Bryan Georgiady of counsel), for appellant in the first above-entitled proceeding.
    I. The North Syracuse Central School District’s CPLR article 78 petition qualified for the “whole” jurisdictional exception to the administrative exhaustion rule. (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52; Matter of First Natl. City Bank v City of N.Y. Fin. Admin., 36 NY2d 87; Matter of Nicholson v State Commn. on Jud. Conduct, 50 NY2d 597; Matter of East Meadow Union Free School Dist. v New York State Div. of Human Rights, 65 AD3d 1342, 14 NY3d 710; Matter of Student Press v New York State Human Rights Appeal Bd., 44 AD2d 558; Matter of Newfield Cent. School Dist. v New York State Div. of Human Rights, 66 AD3d 1314; Matter of Tessy Plastics Corp. v State Div. of Human Rights, 47 NY2d 789; Matter of Union Endicott Cent. School Dist. v New York State Div. of Human Rights, 85 AD3d 1523; Anker Mgt. Corp. v State of N.Y., Div. of Human Rights, 215 AD2d 706; Matter of General Ry. Signal Co. v New York State Div. of Human Rights, 73 AD2d 834.) II. Appellate Division case law omitting to consider the “whole” jurisdictional exception conflicts with this Court’s previous holding in Watergate II Apts. v Buffalo Sewer Auth. (46 NY2d 52 [1978]). (Matter of Newfield Cent. School Dist. v New York State Div. of Human Rights, 66 AD3d 1314; Matter of Bettina Equities Co. LLC v State of N.Y. Exec. Dept., State Div. of Human Rights, 9 AD3d 296.)

      Bond, Schoeneck & King, PLLC, Syracuse (Jonathan B. Fellows of counsel), for appellant in the second above-entitled proceeding.
    I. The holding of the Appellate Division ignores the plain language of Executive Law § 296 (4). (Enright v Eli Lilly & Co., 77 NY2d 377; Matter of East Meadow Union Free School Dist. v New York State Div. of Human Rights, 65 AD3d 1342, 14 NY3d 710.) II. The proper standard of liability under Executive Law § 296 (4) for “permitting” racial harassment is “deliberate indifference.” (Davis v Monroe County Bd. of Ed., 526 US 629; Gant ex rel. Gant v Wallingford Bd. of Educ., 195 F3d 134; Saggio v Sprady, 475 F Supp 2d 203; Yap v Oceanside Union Free School Dist., 303 F Supp 2d 284; Crispim v Athanson, 275 F Supp 2d 240.) III. There is no basis for a compensatory damages award to a parent of a student under section 296 (4) of the Executive Law. (Rich v CooperVision, Inc., 198 AD2d 860; Spoon v American Agriculturalist, 120 AD2d 857; Belanoff v Grayson, 98 AD2d 353; Hart v Sullivan, 84 AD2d 865; Gilbert v Stanton Brewery, Inc., 295 NY 270; Devito v Opatich, 215 AD2d 714; Cavello v Sherburne-Earlville Cent. School Dist., 110 AD2d 253.)

      Caroline J. Downey, General Counsel, New York State Division of Human Rights, Bronx (Michael K. Swirsky of counsel), for respondent in the first above-entitled proceeding.
    I. The alleged victim’s complaint, alleging race and disability discrimination against a student, is an “individual’s complaint of discrimination” that the Human Rights Law authorizes the New York State Division of Human Rights to determine, subject to judicial review of the final disposition. (Matter of Tessy Plastics Corp. v State Div. of Human Rights, 47 NY2d 789; Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783; Matter of East Meadow Union Free School Dist. v New York State Div. of Human Rights, 65 AD3d 1342, 14 NY3d 710; Matter of Hurwitz v New York City Commn. on Human Rights, 142 Misc 2d 214, 159 AD2d 417, 76 NY2d 702; Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52; Anker Mgt. Corp. v State of N.Y., Div. of Human Rights, 215 AD2d 706; Matter of Ken Edrich Leather Accessories v New York State Div. of Human Rights, 269 AD2d 334; Matter of Newfield Cent. School Dist. v New York State Div. of Human Rights, 66 AD3d 1314; Matter of Union Endicott Cent. School Dist. v New York State Div. of Human Rights, 85 AD3d 1523; Matter of Lake Delaware Farms v Rosa, 200 AD2d 819.) II. Executive Law § 296 (4) covers discrimination against public school students. (Matter of East Meadow Union Free School Dist. v New York State Div. of Human Rights, 65 AD3d 1342; State Div. of Human Rights v Board of Coop. Educ. Servs., 98 AD2d 958, 62 NY2d 645; Matter of Rizzo v New York State Div. of Hous. & Community Renewal, 6 NY3d 104; Matter of Crucible Materials Corp. v New York Power Auth., 50 AD3d 1353, 13 NY3d 223; State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201; Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 35 NY2d 143; Gaynor v Rockefeller, 15 NY2d 120; New York Inst. of Tech. v State Div. of Human Rights, 40 NY2d 316; Matter of Cahill v Rosa, 89 NY2d 14; Braschi v Stahl Assoc. Co., 74 NY2d 201.)

      Caroline J. Downey, General Counsel, New York State Division of Human Rights, Bronx (Michael K. Swirsky of counsel), for New York State Division of Human Rights, respondent in the second above-entitled proceeding.
    I. The court below, examining the purpose of the Human Rights Law, correctly concluded that Executive Law § 296 (4) bars discrimination against public school students. (Matter of East Meadow Union Free School Dist. v New York State Div. of Human Rights, 65 AD3d 1342; Braschi v Stahl Assoc. Co., 74 NY2d 201; Matter of

      Student Press v New York State Human Rights Appeal Bd., 44 AD2d 558; Pratt v Indian Riv. Cent. School Dist., 803 F Supp 2d 135; State Div. of Human Rights v Board of Coop. Educ. Servs., 98 AD2d 958, 62 NY2d 645; Matter of New York Univ. v New York State Div. of Human Rights, 84 Misc 2d 702, 49 AD2d 821; Roosevelt Islanders for Responsible Southtown Dev. v Roosevelt Is. Operating Corp., 291 AD2d 40, 97 NY2d 613, lv to appeal denied sub nom. Alternative Southtown Design Comm. v Roosevelt Is. Operating Corp., 98 NY2d 608; State of Ohio ex rel. Fulton v Saal, 239 App Div 420, 264 NY 465; Matter of Jacob, 86 NY2d 651; Matter of Malpica-Orsini, 36 NY2d 568.) II. As substantial evidence supported the New York State Division of Human Rights’ findings that the Ithaca City School District failed to take reasonable action to address the racial harassment of the victim, the Third Department correctly confirmed the order after hearing with respect to liability. (Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of Mize v State Div. of Human Rights, 33 NY2d 53; Matter of Imperial Diner v State Human Rights Appeal Bd., 52 NY2d 72; Matter of Club Swamp Annex v White, 167 AD2d 400, 77 NY2d 809; Matter of CUNY-Hostos Community Coll, v State Human Rights Appeal Bd., 59 NY2d 69; Matter of State Div. of Human Rights [Granelle], 70 NY2d 100; Lopez v Webster Cent. School Dist., 682 F Supp 2d 274; Hayut v State Univ. of N.Y., 352 F3d 733; Matter of Totem Taxi v New York State Human Rights Appeal Bd., 65 NY2d 300.) III. The New York State Division of Human Rights had the power to order the Ithaca City School District to pay compensatory damages to the victim’s mother personally. (Vig v New York Hairspray Co., L.P., 67 AD3d 140; Spoon v American Agriculturalist, 120 AD2d 857; Cavello v Sherburne-Earlville Cent. School Dist., 110 AD2d 253, 67 NY2d 601; Matter of Imperial Diner v State Human Rights Appeal Bd., 52 NY2d 72.)

      Schlather, Stumbar, Parks & Salk, LLP, Ithaca (Raymond M. Schlather and Diane V. Bruns of counsel), for Amelia Kearney, respondent in the second above-entitled proceeding.
    I. The New York State Human Rights Law applies to a public school district. (Koerner v State of N.Y., Pilgrim Psychiatric Ctr., 62 NY2d 442; Matter of Cahill v Rosa, 89 NY2d 14; Matter of East Meadow Union Free School Dist. v New York State Div. of Human Rights, 65 AD3d 1342; Matter of Student Press v New York State Human Rights Appeal Bd., 44 AD2d 558; Matter of Newfield Cent. School Dist. v New York State Div. of Human Rights, 66 AD3d 1314; Bovich v East Meadow Pub. Lib., 16 AD3d 11; Pratt v Indian Riv. Cent. School Dist., 803 F Supp 2d 135; State Div. of Human Rights v Board of Coop. Educ. Servs., 98 AD2d 958; Martin v Curran, 303 NY 276; Matter of Graves, 171 NY 40.) II. The Appellate Division’s conclusion that the Ithaca City School District had violated the Human Rights Law applies the appropriate standard of review and is supported by substantial evidence in the record. (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of Matteo v New York State Div. of Human Rights, 306 AD2d 484; Matter of Club Swamp Annex v White, 167 AD2d 400, 77 NY2d 809; Matter of State Div. of Human Rights [Granelle], 70 NY2d 100; Matter of CUNY-Hostos Community Coll, v State Human Rights Appeal Bd., 59 NY2d 69; Gant ex rel. Gant v Wallingford Bd. of Educ., 195 F3d 134; Saggio v Sprady, 475 F Supp 2d 203; Crispim v Athanson, 275 F Supp 2d 240; Yap v Oceanside Union Free School Dist., 303 F Supp 2d 284.) III. The award of damages to Amelia Kearney is both authorized under the Human Rights Law and supported by substantial evidence in the record. (Hart v Sullivan, 84 AD2d 865, 55 NY2d 1011; Belanoff v Grayson, 98 AD2d 353; Spoon v American Agriculturalist, 120 AD2d 857; Rich v Cooper-Vision, Inc., 198 AD2d 860; Gilbert v Stanton Brewery, Inc., 295 NY 270; Devito v Opatich, 215 AD2d 714; Cavello v Sherburne-Earlville Cent. School Dist., 110 AD2d 253, 67 NY2d 601, 647; Bovsun v Sanperi, 61 NY2d 219; Matter of Sherwood Terrace Apts. v New York State Div. of Human Rights, 61 AD3d 1333; Matter of Price v Southwest Airlines, Inc., 66 AD3d 1267, 14 NY3d 858, 15 NY3d 800.) IV Pursuant to the State Administrative Procedure Act, the Ithaca City School District has waived any objection to the New York State Division of Human Rights’ jurisdiction. (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of Stefanis v New York State Div. of Human Rights, 244 AD2d 342; Matter of Farina v State Liq. Auth., 20 NY2d 484; Matter of Nostima Foods v State Liq. Auth., 71 NY2d 648.)

      Lambda Legal Defense and Education Fund, Inc., New York City (Thomas W. Ude, Jr., and Hayley J. Gorenberg of counsel), for Advocates for Children of New York, Inc. and others, amici curiae in the first above-entitled proceeding.
    The Human Rights Law applies to public school districts. (Matter of Cahill v Rosa, 89 NY2d 14; Matter of Rizzo v New York State Div. of Hous. & Community Renewal, 6 NY3d 104; Matter of Crucible Materials Corp. v New York Power Auth., 50 AD3d 1353, 13 NY3d 223; Matter of Board of Higher Educ. of City of N.Y. v Carter, 16 AD2d 443, 14 NY2d 138; Pocantico Home & Land Co., LLC v Union Free School Dist. of Tarrytowns, 20 AD3d 458; Mohonk Trust v Board of Assessors of Town of Gardiner, 47 NY2d 476; State Div. of Human Rights v Board of Coop. Educ. Servs., 98 AD2d 958; Matter of East Meadow Union Free School Dist. v New York State Div. of Human Rights, 65 AD3d 1342; Matter of Perrenod v Liberty Bd. of Educ. for Liberty Cent. School Dist., 223 AD2d 870; Woods v Rondout Val. Cent. School Dist. Bd. of Educ., 466 F3d 232.)

      Eric T. Schneiderman, Attorney General, New York City (Cecelia C. Chang, Leslie B. Dubeck, Barbara D. Underwood, Spencer Freedman, Kristen Clarke and Kayla Gassmann of counsel), for State of New York, amicus curiae in the first and second above-entitled proceedings.
    The Human Rights Law protects public school students from discrimination. (Sega v State of New York, 60 NY2d 183; Ward v Hasbrouck, 169 NY 407; Simar v Canaday, 53 NY 298; Matter of Board of Higher Educ. of City of N.Y. v Carter, 14 NY2d 138; Williams v Williams, 23 NY2d 592; People v Kern, 75 NY2d 638; Koerner v State of N.Y., Pilgrim Psychiatric Ctr., 62 NY2d 442; Matter of East Meadow Union Free School Dist. v New York State Div. of Human Rights, 65 AD3d 1342; Hayut v State Univ. of N.Y., 127 F Supp 2d 333; State Div. of Human Rights v Board of Coop. Educ. Servs., 98 AD2d 958.)

      Lambda Legal Defense and Education Fund, Inc., New York City (Hayley J. Gorenberg and Thomas W. Ude, Jr., of counsel), for Advocates for Children of New York, Inc. and others, amici curiae in the second above-entitled proceeding.
    The New York Human Rights Law protects students attending public schools against discrimination by and harassment in their school districts. (Matter of Cahill v Rosa, 89 NY2d 14; Matter of Board of Higher Educ. of City of N.Y. v Carter, 16 AD2d 443, 14 NY2d 138; Matter of Rizzo v New York State Div. of Hous. & Community Renewal, 6 NY3d 104; Matter of Crucible Materials Corp. v New York Power Auth., 50 AD3d 1353, 13 NY3d 223; Pocantico Home & Land Co., LLC v Union Free School Dist. of Tarrytowns, 20 AD3d 458; Mohonk Trust v Board of Assessors of Town of Gardiner, 47 NY2d 476; State Div. of Human Rights v Board of Coop. Educ. Servs., 98 AD2d 958; Matter of East Meadow Union Free School Dist. v New York State Div. of Human Rights, 65 AD3d 1342; Matter of Perrenod v Liberty Bd. of Educ. for Liberty Cent. School Dist., 223 AD2d 870; Woods v Rondout Val. Cent. School Dist. Bd. of Educ., 466 F3d 232.)

      Jay Worona, Latham, and Aileen Abrams, for New York State School Boards Association, Inc., amicus curiae in the second above-entitled proceeding.
    The court below erred when it determined that Executive Law § 296 (4) is applicable to the Ithaca City School District and the State Division of Human Rights has jurisdiction to enforce that law in public schools. (Roslyn Union Free School Dist. v Barkan, 16 NY3d 643; Lanza v Wagner, 11 NY2d 317; People ex rel. Elkind v Rosenblum, 184 Misc 916, 269 App Div 859, 295 NY 929; Gunnison v Board of Educ. of City of New York, 176 NY 11; Matter of Perrenod v Liberty Bd. of Educ. for Liberty Cent. School Dist., 223 AD2d 870; Woods v Rondout Val. Cent. School Dist. Bd. of Educ., 466 F3d 232; Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475; TC v Valley Cent. School Dist., 777 F Supp 2d 577; Matter of East Meadow Union Free School Dist. v New York State Div. of Human Rights, 65 AD3d 1342; Matter of Excellus Health Plan v Serio, 2 NY3d 166.)
   OPINION OF THE COURT

Pigott, J.

At issue on these appeals is whether a public school district is an “education corporation or association” as contemplated by Executive Law § 296 (4). We conclude that it is not, and, therefore, the New York State Division of Human Rights (SDHR) lacks jurisdiction to investigate complaints against public school districts under that provision.

Procedural Background

The public school students in these proceedings filed complaints with the SDHR, claiming that their respective school districts engaged in an “unlawful discriminatory practice” under article 15 of the Executive Law (Executive Law § 290 et seq. [Human Rights Law]) by permitting their harassment on the basis of race and/or disability (Executive Law § 296 [4]).

Both school districts commenced a CPLR article 78 proceeding seeking a writ of prohibition barring the SDHR from investigating the complaints on the ground that a public school district is not an “education corporation or association” as contemplated by Executive Law § 296 (4). Supreme Court in Matter of North Syracuse Cent. School Dist. granted the petition on that ground; Supreme Court in Matter of Ithaca City School Dist. held otherwise, concluding that a school district is an “education corporation” that the SDHR could investigate.

At this point, the procedural paths of the appeals diverged. The SDHR appealed in the North Syracuse Cent. School Dist. matter, and the Appellate Division, Fourth Department, reversed, holding that the SDHR’s exercise of jurisdiction should have been challenged first during administrative review, not in a CPLR article 78 proceeding (83 AD3d 1472 [4th Dept 2011]).

The Ithaca City School District had withdrawn its appeal to the Appellate Division, Third Department. The parties proceeded to a hearing on the discrimination complaint before an administrative law judge, who concluded, among other things, that the district had permitted discriminatory conduct and awarded complainant and her mother $500,000 each. The Commissioner of Human Rights reduced each award to $200,000. The Ithaca City School District thereafter commenced a CPLR article 78 proceeding seeking vacatur and annulment of the SDHR’s determination.

Supreme Court annulled the SDHR’s determination, holding that it lacked the authority to hear and determine complaints against the district because a school district is not an “education corporation” under section 296 (4). The Appellate Division, Third Department, with one Justice dissenting, modified the mother’s award by reducing it to $50,000 and otherwise confirmed the determination. Relying on the legislative findings set forth in Executive Law § 290 (3) that the Human Rights Law was intended “to eliminate and prevent discrimination . . . in educational institutions,” the Appellate Division held that “public school districts are among the ‘educational institutions’ over which [the] SDHR has jurisdiction and that Executive Law § 296 (4) is the statutory mechanism by which it can seek to eliminate any discrimination by such school districts” (87 AD3d 268, 273 [3d Dept 2011]). This Court granted leave in both appeals.

Analysis

Executive Law § 296 (4) provides, in relevant part, that

“ [i]t shall be an unlawful discriminatory practice for an education corporation or association which holds itself out to the public to be non-sectarian and exempt from taxation pursuant to . . . [RPTL article 4] ... to permit the harassment of any student or applicant, by reason of his race . ... [or] disability” (emphasis supplied).

The parties acknowledge that there is no definition of “education corporation or association” in the Human Rights Law.

Given the absence of a definition, one Appellate Division looked to the General Construction Law for guidance (see Matter of East Meadow Union Free School Dist. v New York State Div. of Human Rights, 65 AD3d 1342, 1343 [2d Dept 2009] [holding that because a school district is a “municipal corporation” and therefore a “public corporation” under the General Construction Law, it could not be an “education corporation” within the meaning of Executive Law § 296 (4)]). That approach is a legitimate one given that the General Construction Law is “applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended” (General Construction Law § 110 [emphasis supplied]). On the other hand, application of the General Construction Law is problematic, however, because the provision at issue in the Executive Law was enacted 15 years prior to General Construction Law §§ 65 and 66—the provisions upon which the Appellate Division relied on in East Meadow Union Free School Dist.— and the SDHR, relying on the exceptions contained in General Construction Law § 110, contends that the Legislature never meant for those definitions to apply to Executive Law § 296 (4). We need not address whether the General Construction Law is applicable here, however, because there is independent basis, supported by legislative history, for our conclusion that a public school district is not an “education corporation or association.”

The SDHR asks this Court to adopt the Appellate Division’s rationale in Matter of Ithaca City School Dist. and liberally construe the “general purpose” of the Human Rights Law, which is to “eliminate and prevent discrimination ... in educational institutions” (Executive Law § 290 [3]), and conclude that a public school district is an “education corporation or association.” That argument, however, overlooks the basic premise that there must first be an underlying directive in the statute before this Court can apply such a construction. And it is evident from the legislative history that the term “education corporation or association,” the origins of which can be traced to the Tax Law, refers to only private, non-sectarian entities that are exempt from taxation under RPTL article 4.

The demarcation between tax exemption for public and certain private property dates back to 1896, when the Legislature enacted Tax Law § 4. That section expressly differentiated the tax-exempt status for “[pjroperty of a municipal corporation of the state held for a public use” (Tax Law § 4 [3], as added by L 1896, ch 908), i.e., school district property, from the tax-exempt status of

“[t]he real property of a corporation or association organized exclusively for the moral or mental improvement of men or women, or for religious, bible, tract, charitable, benevolent, missionary, hospital, infirmary, educational, public playground, scientific, literary, bar association, library, patriotic, historical or cemetery purposes, or for the enforcement of laws relating to children or animals, or two or more such purposes and used exclusively for carrying out thereupon one or more of such purposes” (Tax Law § 4 [7] [emphasis supplied]).

Subdivisions (3) and (7) of Tax Law § 4 plainly had different aims, with the latter addressing the tax-exempt status of private property ostensibly used to carry out a public purpose (see Problems Relating to Taxation and Finance, 1938 Report of New York State Constitutional Convention Committee, vol 10, at 198, 201-205). Indeed, the Legislature enacted Tax Law § 4 (7) to prohibit the granting of special real property tax exemptions to individual corporations, and to ensure that such corporations received such an exemption only if they used their property to provide a public service (id. at 201-205).

In 1933, the Legislature retained the language set forth in Tax Law § 4 (7), renamed it Tax Law § 4 (6) (L 1933, ch 470, § 3), and in 1935 added the following proviso: “No education corporation or association that holds itself out to the public to be non-sectarian and exempt from taxation pursuant to the provisions of this section shall deny the use of its facilities to any person otherwise qualified, by reason of his race, color or religion” (L 1935, ch 852, § 1 [emphasis supplied]). The language was added after the Legislature received a report from the New York State Commission for the Revision of Tax Laws (Tax Commission), which, in part, addressed tax exemptions for government-owned and privately-owned real property (1935 NY Legis Doc No. 62, at 35-59). The exemptions discussed in that report were embodied in Tax Law § 4 (id. at 40 n 15).

In its report, the Tax Commission observed that “[m]ost of the exemptions of privately owned real property resulted] from the enumeration and definition of specific public uses,” meaning that tax exemptions for private property were granted because the exempt property was being “used in doing what the government might otherwise be compelled to do, in fulfilling a responsibility which it has definitely undertaken,” or, what the Legislature deemed a “necessary public purpose” (1935 NY Legis Doc No. 62, at 44). Significantly, as relevant to this appeal, under the heading “Privately Owned Property Devoted to a Public Use,” the Tax Commission listed a number of private entities referenced in now-former Tax Law § 4 (6) (id. at 44-48 [emphasis supplied]). The similarities between the types of privately-owned exempt property delineated in the Tax Commission’s Report and Tax Law § 4 (6) are striking and hardly coincidental.

For instance, the Tax Commission, utilizing terms almost identical to those used in Tax Law § 4 (6), listed as tax-exempt the following private property owned by private organizations: religious property (“organized exclusively for religious, bible, tract, or missionary purposes, or for the moral or mental improvement of men or women”); charitable property (“owned by associations organized exclusively for charitable purposes”); fraternal and benevolent property (which “relieve[s] the state of part of its traditional burden of caring for the poor, aged, and helpless”); hospital property (which “protect[s]” the public health, “one of the most important of the necessary public purposes of the state”); occupational association property (property of “[h]ar association” and use of county fair grounds for agricultural exhibitions); and miscellaneous property (cemeteries and property owned by “patriotic” organizations) (compare Tax Law § 4 [6], with 1935 NY Legis Doc No. 62, at 44-48).

The most significant item demarcated in the Tax Commission’s list of private property subject to tax exemption was “[e]ducational [p]roperty,” to which the Tax Commission devoted an entire section (1935 NY Legis Doc No. 62, at 44). The Tax Commission noted that “[r]eal property owned by educational institutions is exempt only to the extent that the educational purpose is ‘exclusively’ carried out ‘thereupon,’ ” quoting from Tax Law § 4 (6) that “real property of a corporation or association organized exclusively for . . . educational . . . purposes” is tax exempt if “used exclusively for carrying out thereupon” such a purpose (1935 NY Legis Doc No. 62, at 44). Indeed, it was acknowledged after the enactment of Tax Law § 4 (6) that “[w]ith the assumption by the public authority of the function of public education, the basis for the exemption of . . . non-profit making private institutions which carried an elementary and secondary educational work changed,” and the State “recognized . . . that [such] institutions were performing not merely a desirable public purpose but even a necessary one—a purpose which the government itself was serving” (Problems Relating to Taxation and Finance, 1938 Report of New York State Constitutional Convention Committee, vol 10, at 217). Because the government derived a benefit from the work of these institutions, i.e., it was relieved of the expense of providing education to students of private institutions, “[t]he least that the public authority could do as a recompense of the institutions for the services they were rendering and the money they were saving the authority was to free these institutions from taxation” (id.).

Given the foregoing, the “educational” property delineated in Tax Law § 4 (6) plainly referred to privately-owned property that was tax-exempt because it provided a public service; consequently, the use of the term “education corporation or association” in that same provision plainly referred to private, non-sectarian entities that owned “educational” property utilized for a public purpose. Although the corporations and associations delineated in Tax Law § 4 (6) provide different services, they share one thing in common: their property is privately owned and it is afforded tax-exempt status because those corporations or associations perform a public service that the government recognizes as worthy of special tax treatment (1935 NY Legis Doc No. 62, at 44-48).

In light of the legislative history surrounding the enactment of Tax Law § 4 (6), and given the circumstances under which the Legislature transferred the term “education corporation or association” from Tax Law § 4 (6) to Executive Law § 296 (4), we reject the SDHR’s assertion that “education corporation or association” applies to a public school district. In 1951, the Legislature created the State Commission Against Discrimination to “eliminate and prevent discrimination in employment because of race, creed, color or national origin” (Executive Law §§ 290, 293, as added by L 1951, ch 800 [emphasis supplied]). The following year the law was amended granting the State Commission the authority to also “eliminate and prevent discrimination ... in places of public accommodation, resort or amusement” (Executive Law § 290, as amended by L 1952, ch 285, § 1). As pertinent here, in 1958, the Legislature amended Executive Law § 296 (4) as follows:

“It shall be an unlawful discriminatory practice for an education corporation or association which holds itself out to the public to be non-sectarian and exempt from taxation pursuant to the . . . provisions of [RPTL article 4] to deny the use of its facilities to any person otherwise qualified, by reason of his race, color or religion” (L 1958, ch 960, § 23 [emphasis supplied]).

This language was taken almost verbatim from Tax Law § 4 (6).

The term “education corporation or association” is retained in Executive Law § 296 (4) to this day. The Human Rights Law is silent as to what constitutes an “education corporation or association,” but the fact that such language was taken directly from the Tax Law and moved to Executive Law § 296 (4) bespeaks the Legislature’s intention that the term was to have the same meaning in the Executive Law as it did in former Tax Law § 4 (6). Moreover, the use of the phrase “non-sectarian” was plainly included in Executive Law § 296 (4) to carve out an exception for parochial schools, while reserving for the SDHR the jurisdiction to investigate section 296 (4) complaints against private, non-sectarian education corporations or associations.

Public school districts are different from private, nonsectarian institutions and fall outside the purview of the SDHR’s jurisdiction relative to section 296 (4) claims. To be sure, school districts own tax-exempt property and serve a public purpose, but they do so as part of a public system, not a private one. And a public school district receives tax-exempt status by virtue of the fact that it is public, so there would never be any need for it to “hold[ ] itself out to the public to be non-sectarian” as, say, a private school.

The vicious attacks to which these students were subjected are deplorable, and our holding is not to be interpreted as indifference to their plight, since the merits of their underlying discrimination claims are not at issue on these appeals. Nor does our holding leave public school students without a remedy. In addition to potential remedies under federal law, public school students may file a complaint with the Commissioner of Education (see Education Law § 310). Moreover, in 2010, the Legislature enacted the “Dignity for All Students Act,” establishing article 2 of the Education Law, designed “to afford all [public school] students an environment free of any harassment that substantially interferes with their education, regardless of the basis of the harassment, and free of discrimination based on actual or perceived race, color, weight, national origin, ethnic group, religion, disability, sexual orientation, gender, or sex” (Sponsor’s Mem, Bill Jacket, L 2010, ch 482, at 21, 2010 McKinney’s Session Laws of NY, at 2051-2052; see also Education Law §§ 10-18 [eff July 1, 2012]). Although the SDHR lauded this legislation by acknowledging that it “addresses a myriad of harassment and discrimination issues that arise within a school context and its goals comport[ ] with the goals of the [Human Rights Law],” noticeably absent from its correspondence was any indication that it had previously handled similar claims of that nature arising in public schools (Letter from NY St Div of Human Rights, July 22, 2010, Bill Jacket, L 2010, ch 482, at 34).

Conclusion

Because a public school district is not an “education corporation or association” under Executive Law § 296 (4), the SDHR lacked jurisdiction to investigate the complaints filed by the students in these appeals.

Accordingly, in Matter of North Syracuse Cent. School Dist., the order of the Appellate Division should be reversed, with costs, and the resettled judgment of Supreme Court reinstated. In Matter of Ithaca City School Dist., the order of the Appellate Division should be reversed, with costs, and the order of Supreme Court reinstated.

Ciparick, J. (dissenting).

The Equal Protection Clause of the New York State Constitution explicitly prohibits both public and private discrimination (see NY Const, art I, § 11). Legislation implementing this provision states “[t]he opportunity to obtain education . . . without discrimination . . . is . . . recognized as and declared to be a civil right” (Executive Law § 291 [2]). Further, Executive Law § 296 (4) provides that

“[i]t shall be an unlawful discriminatory practice for an education corporation or association which holds itself out to the public to be non-sectarian and exempt from taxation pursuant to the provisions of article four of the real property tax law to deny the use of its facilities to any person otherwise qualified, or to permit the harassment of any student or applicant, by reason of his race, color, religion, disability, national origin, sexual orientation, military status, sex, age or marital status.”

Today, the majority curtails the breadth of this statute by limiting the definition of “education corporation or association” to only private schools and exempting public school districts from the jurisdiction of the State Division of Human Rights (SDHR). Because I believe that exclusion of public school children from the full protection of the Human Rights Law contradicts the plain language of the statute, the Legislature’s declared purpose and New York’s fundamental public policy against discrimination, I respectfully dissent.

L

Ithaca City School District

During the 2005-2006 school year, petitioner’s daughter (E.K), a 12-year-old African-American student attending public school in Ithaca, was repeatedly subjected to racial insults, threats and physical harm from a group of white male students. Among other things, the boys made comments to E.K. such as: “Do you mind if I call you my nigger?” and “we shoot niggers like you in the woods.” One student told E.K. that he had a hunting rifle with her name on it. The majority of the incidents occurred on the school bus. Petitioner repeatedly sought help from school officials. Despite acknowledging that there was a “racial tidal wave” at the school and that E.K.’s school bus was a “hell hole,” officials only meted out ineffective one or two day suspensions on the perpetrators and refused to ban the offending students from the school bus.

Because of the harassment, E.K.’s grades fell and her mental health deteriorated. Petitioner filed a complaint with the SDHR. After a public hearing before an administrative law judge, it was determined that the school district had violated Executive Law § 296 (4) by permitting the repeated harassment of a student on the basis of race. Specifically, the division found that the school district “repeatedly chose a course of action which both put the interests of the white male perpetrators ahead of the interests of the black female student, and was repeatedly shown to be, and acknowledged to be, ineffective in stopping the discriminatory conduct.” The administrative law judge ordered the school district to pay compensatory damages to E.K. and her mother in the amount of $500,000 each. The SDHR affirmed the findings, but lowered both damage awards to $200,000. The school district challenged the determination. Supreme Court determined that the SDHR lacked jurisdiction to investigate public schools. The Appellate Division reversed holding that the SDHR did indeed have jurisdiction over public schools (see Matter of Ithaca City School Dist. v New York State Div. of Human Rights, 87 AD3d 268 [3d Dept 2011]).

North Syracuse Central School District

The underlying complaint in this case was filed by the mother of a 14-year-old African-American student (L.T.), who attended public school in North Syracuse. The mother complained that her child was targeted for abuse because of her race and had been called names such as “gorilla” and “fat black bitch.” The SDHR investigated and interviewed school officials who confirmed that L.T. had been targeted by bullies but that the harassment was based on personal hygiene and weight as opposed to race and that the terms “gorilla” and “fat black bitch” were not “race based insults.” The SDHR found probable cause to support a violation of Executive Law § 296 (4) and ordered a full public hearing on the issue. The school district filed a CPLR article 78 petition in Supreme Court challenging the SDHR’s jurisdiction. Supreme Court granted the petition, finding that the SDHR had no jurisdiction over the school district. The Appellate Division reversed, holding that the school district was required to exhaust its administrative remedies, including raising its jurisdictional challenge to the SDHR prior to commencing an article 78 proceeding (Matter of North Syracuse Cent. School Dist. v New York State Div. of Human Rights, 83 AD3d 1472 [4th Dept 2011]).

IL

The majority has determined, through an analysis of tax law statutory history, that the term “education corporation or association,” as used in Executive Law § 296 (4), is intended to cover only private schools and accordingly provide protection for a very small percentage of students in the state. However, such an interpretation is contradicted by a plain reading of the statute, which we have long recognized as the clearest indication of legislative intent (see Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). Executive Law § 296 (4) prohibits discrimination by any “education corporation or association which holds itself out to the public to be non-sectarian and exempt from taxation pursuant to the provisions of article four of the real property tax law.” It is uncontroverted that the term “education corporation or association” is not defined within the Executive Law. It is beyond cavil that public school districts are corporations organized for educational purposes (see NY Const, art X, § 5) and public schools hold themselves out to the public as non-sectarian and are exempt from taxation pursuant to article 4 of the RPTL (see RPTL 408). Section 296 (4) brings within the protection of the Human Rights Law private educational institutions, which had not previously been covered. That it used identical language as the RPTL does not work to now exclude public school districts. Thus, a plain reading of the statute indicates that the Legislature intended to confer authority to the SDHR over both public and private schools and the historical statutory analysis performed by the majority runs counter to the plain language of the statute.

Moreover, in interpreting the statute, we also examine the purpose of a statute in determining legislative intent (see Matter of Sutka v Conners, 73 NY2d 395, 403 [1989]). Interpreting section 296 (4) as encompassing both public and private schools is in keeping with the overarching purpose of article 15 of the Executive Law—the Human Rights Law—which is:

“to assure that every individual within this state is afforded an equal opportunity to enjoy a full and productive life and that the failure to provide such equal opportunity, whether because of discrimination, prejudice, intolerance or inadequate education, training, housing or health care not only threatens the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state and threatens the peace, order, health, safety and general welfare of the state and its inhabitants” (Executive Law § 290 [3] [emphasis added]).

This statute also provides for the creation of the SDHR in order to

“encourage programs designed to insure that every individual shall have an equal opportunity to participate fully in the economic, cultural and intellectual life of the state; to encourage and promote the development and execution by all persons within the state of such state programs; to eliminate and prevent discrimination in employment, in places of public accommodation, resort or amusement, in educational institutions, in public services, in housing accommodations, in commercial space and in credit transactions and to take other actions against discrimination as herein provided; and the division established hereunder is hereby given general jurisdiction and power for such purposes” {id. [emphasis added]).

This language clearly indicates that “every individual”—including every school-age child—has a right to adequate education and that the SDHR has the authority, on behalf of “every individual,” to prevent discrimination in “educational institutions.” The majority’s limitation of the SDHR’s jurisdiction to only private schools does little to promote the broad purposes of the Human Rights Law, which is to provide a bias-free education for every individual.

Furthermore, by its own statutory language, “[t]he provisions [of the Human Rights Law] shall be construed liberally for the accomplishment of the purposes thereof’ (Executive Law § 300) and we have consistently embraced a liberal construction of the Human Rights Law in order to accomplish its stated purpose (see Matter of Cahill v Rosa, 89 NY2d 14, 20 [1996] [holding that a private dentist’s office is a place of public accommodation]). By adopting a strict and limiting interpretation of the statute, the majority is forgoing its duty to make sure that the Human Rights Law is implemented in such a way as to give every individual an opportunity for a bias-free education (see City of Schenectady v State Div. of Human Rights, 37 NY2d 421, 428 [1975] [“it is the duty of courts to make sure that the Human Rights Law works and that the intent of the Legislature is not thwarted by a combination of strict construction of the statute and a battle with semantics”]). It is antithetical to the purpose of the Human Rights Law to exempt public schools from its mandate. We have noted that discrimination is “all the more invidious” when practiced by state run entities (Koerner v State of N.Y., Pilgrim Psychiatric Ctr., 62 NY2d 442, 448 [1984]). The clear and expressed intent of the Human Rights Law is to protect “every individual” in the state from the evils of discrimination. As argued by the State, nothing in the text of the Human Rights Law compels a reading, as that employed by the majority, that would exclude public school districts from the coverage of section 296 (4) and its remedial purpose. It is implausible that the Legislature intended to exempt public schools and the thousands of children who attend these schools from the protection of the Human Rights Law and the oversight of the SDHR.

Thus, I would affirm both Appellate Division orders.

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

In each case: Order reversed, etc.

      . The Tax Commission likewise stated that tax-exempt “[e]ducational [p]roperty” also included “[p]roperty belonging to associations organized for scientific, literary, public playground and library purposes” (compare 1935 NY Legis Doc No. 62, at 44, with Tax Law § 4 [6]). Such language distinctly tracks the language of Tax Law § 4 (6) as it existed in 1935, and such associations were plainly meant to be included as “education . . . association^].”

      . This name was changed to the New York State Division of Human Rights in 1968.

      . Given our holding, we do not address the separate jurisdictional issue raised by the North Syracuse Central School District that the Appellate Division erred in concluding that it should have exhausted its administrative remedies before commencing its CPLR article 78 proceeding.

      . It should be noted that the statutory interpretation question was fully litigated below, although the Appellate Division did not reach it in dismissing the school district’s petition.

      . That the Legislature intended to cover public schools is evident in that on the same day that it enacted Executive Law § 296 (4) (see L 1958, ch 960, § 23) it also amended the RPTL, adding article 4, which expressly included public school districts (see L 1958, ch 959). In fact, the Legislature, in the preamble to the act that enacted section 296, stated that the purpose of the act is “to harmonize certain provisions [of the Executive Law] with the real property tax law” (L 1958, ch 960).

      . Notably, the statute uses the term “educational institutions” here as opposed to, as the majority argues, the more restrictive term “education corporation or association.”