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

text:
    [979 NE2d 1125, 955 NYS2d 799]
    The People of the State of New York, Respondent, v Delroy Colville, Appellant.
    Argued September 6, 2012;
    decided October 23, 2012

      POINTS OF COUNSEL

      Appellate Advocates, New York City (Lynn W.L. Fahey of counsel), for appellant.
    I. By deferring to appellant’s desire to have no lesser-included offenses submitted to the jury, despite defense counsel’s clearly-stated professional opinion to the contrary, the court denied appellant the benefit of counsel’s expert tactical judgment, and therefore his constitutional rights to counsel and due process. (Johnson v Zerbst, 304 US 458; Powell v Alabama, 287 US 45; Gonzalez v United States, 553 US 242; Jones v Barnes, 463 US 745; New York v Hill, 528 US 110; Taylor v Illinois, 484 US 400; Faretta v California, 422 US 806; People v Benevento, 91 NY2d 708; People v Colon, 90 NY2d 824; People v Davis, 13 NY3d 17.) II. Appellant was denied a fair trial when the court charged the jury that he had a duty to retreat from an assault that began in the common kitchen area of the single-room-occupancy apartment in which he lived, but refused to charge that he did not have such a duty if the jurors found that he was in his dwelling. (Payton v New York, 445 US 573; People v Tomlins, 213 NY 240; People v Aiken, 4 NY3d 324; People v Jones, 3 NY3d 491; People v Berk, 88 NY2d 257; People v Hernandez, 98 NY2d 175; People v Sullivan, 7 NY 396; People v Wesley, 76 NY2d 555; People v Primus, 178 AD2d 565; People v McCurdy, 86 AD2d 493.)

      Charles J. Hynes, District Attorney, Brooklyn (Anthea H. Bruffee and Leonard Joblove of counsel), for respondent.
    I. Defendant received the effective assistance of counsel where counsel acquiesced in defendant’s decision not to request the submission to the jury of lesser-included manslaughter counts. In any event, by knowingly, intelligently, and voluntarily choosing to request that those counts not be submitted to the jury, defendant waived any claim that he was denied either the effective assistance of counsel or due process by the nonsubmission of those counts. (People v Benevento, 91 NY2d 708; People v Flores, 84 NY2d 184; People v Hobot, 84 NY2d 1021; People v Satterfield, 66 NY2d 796; People v Baldi, 54 NY2d 137; Strickland v Washington, 466 US 668; People v Rivera, 71 NY2d 705; People v Caban, 5 NY3d 143; People v Stultz, 2 NY3d 277; People v Colon, 90 NY2d 824.) II. Defendant was not denied a fair trial by the court’s decision not to give the jury a “no duty to retreat” instruction in the charge on justification because there was overwhelming evidence both that the stabbing did not occur in defendant’s dwelling and that defendant’s acts were unjustified, and there is no significant probability that the verdict would have been different but for the court’s decision not to give such an instruction. (People v Petty, 7 NY3d 277; People v Jones, 3 NY3d 491; People v Ginett, 179 AD2d 1072; People v Hernandez, 98 NY2d 175; People v Aiken, 4 NY3d 324; People v Mickens,
      219 AD2d 543; People v Duren, 234 AD2d 560; People v Gopaul, 171 AD2d 754; People v Childs, 21 AD2d 809; People v Primus, 178 AD2d 565.)
   OPINION OF THE COURT

Read, J.

We hold that the decision whether to seek a jury charge on lesser-included offenses is a matter of strategy and tactics which ultimately rests with defense counsel. At defendant Delroy Colville’s trial for second-degree murder, the trial judge agreed with the defense attorney that a reasonable view of the evidence supported his request to submit the lesser-included offenses of first- and second-degree manslaughter to the jury. But contrary to defense counsel’s request and repeated statements that, in his professional judgment, the lesser-included offenses should be given to the jury, the judge did not do so because defendant objected. The jury found defendant guilty of murder; we now reverse and order a new trial.

L

On October 28, 2004, defendant stabbed and killed Gregory Gardner with a chefs knife, which belonged to him, and sliced open the lip of another man, Carl Jones. This violence erupted on the third floor of a single-room occupancy brownstone-type duplex where defendant resided; defendant and the occupants of the four other bedrooms on the third-floor, one of whom was Jones, shared a kitchen and bathroom. In defendant’s telling, he was confronted and attacked in the kitchen by Gardner, Jones’s guest; and Gardner, a much younger and bigger man, repeatedly pummeled him in the head with a heavy glass ashtray, rendering defendant bloody and nearly unconscious and leading him, in fear for his life, to grab the knife from the kitchen sink counter to protect himself. In the ensuing struggle, as he and Gardner “tumbled all over the place,” defendant stabbed Gardner and cut Jones’s lip as he “flashed him off” with the knife.

Jones, his 11-year-old son and Abnor George, another third-floor resident, gave a markedly different account. None of these witnesses was present for the entirety of the encounter between defendant and Gardner. Additionally, Jones’s girlfriend, who allegedly suffered a knife wound while trying to protect Gardner from defendant, apparently did not give a statement to the police, and was out of the country during defendant’s trial. While there was little dispute that Gardner hit defendant in the head with an ashtray, there was testimony that defendant was the aggressor; that George took the ashtray from Gardner and broke up the fight; that Gardner was headed peacefully to the hallway and down the stairs when defendant ran into his bedroom and emerged with the knife in hand; and that defendant set upon Gardner, plunging the knife into his left side, and injured Jones as he was attempting to wrest the knife away.

Gardner, bleeding profusely and mortally wounded, managed to make his way to the street before collapsing in front of a tree. The police, who arrived almost immediately, followed a trail of blood from Gardner into the building and up the staircase, encountering the injured Jones along the way. Jones identified defendant as the assailant, described what he was wearing and directed the police to the third floor. There, after forcing open the only bedroom door that was locked, they discovered defendant in the closet and arrested him. Defendant insisted that he had acted in self-defense. As the police were escorting him out of the house, defendant pointed out a mailbox in the vestibule, where he had stashed the knife. Later that evening defendant was taken to a hospital and his head wound was closed with seven stitches.

Defendant was subsequently indicted and tried before a jury for the crimes of second-degree murder for the killing of Gardner (Penal Law § 125.25 [1]), and second-degree assault for slashing Jones (Penal Law § 120.05 [2]). The trial record closed with defendant’s testimony on the Friday before a three-day holiday weekend. At the conference immediately following, the judge announced his intention to charge justification with respect to the murder count, at the defense attorney’s request. The attorney, stating that he had “discussed this with [defendant],” also asked the judge to charge the lesser-included offenses of first- and second-degree manslaughter (Penal Law §§ 125.20, 125.15), adding that he had “told [defendant] that, in [his] view, murder, alone, should not be submitted to the jury.”

The judge, however, expressed the opinion there was “no reasonable view of the evidence . . . that would support the elements [of manslaughter], either reckless or intentional.” The prosecutor agreed. After the defense attorney objected, the judge told him to raise the issue again when the trial resumed, noting that he was “not going to say this is written in stone, if you can convince me it’s appropriate, but, at this point, I don’t see it.” Still, the judge added that he entertained “an inclination” to view second-degree manslaughter as “potentially . . . appropriate,” based on defendant’s videotape statement to the police, which was shown to the jury, and “certain elements” of his just completed trial testimony. The judge advised that he would have such a charge ready.

The record, which picks up on the following Tuesday, establishes that in off-the-record discussions earlier that morning the judge had agreed to submit both lesser-included offenses to the jury, as the defense attorney requested; the prosecutor had “acquiesce[d]” to charging first-degree manslaughter; and the judge had prepared a verdict sheet that included both first- and second-degree manslaughter. The issue arose on the record again because defendant balked.

The defense attorney recounted that he had “spent the better part” of the three-day weekend “reviewing transcripts, evidence, preparing arguments, doing legal research” since he had indicated on Friday that he “wished lesser included charges to be charged to this jury”; namely, first- and second-degree manslaughter. He then advised the judge that defendant, “if I understand it correctly, does not wish those charges to go to the jury . . . [which] represents ... a change of position.” He added that “as the attorney here, I am only ... as the Supreme Court has said, the guiding hand”; and that “[i]t is my opinion as a matter of strategy, trial strategy, and as a matter of sound practice, it is my opinion that lesser includeds should be submitted” so as to give the jury latitude. He observed that he was “trying to protect [defendant] here.”

When the judge asked the defense attorney if he was “withdrawing” his request for lesser-included offenses to be given to the jury, the attorney replied “I am checking with the defendant.” At that point, the judge responded that “[i]f that is where we are going, instead of using you, why don’t I ask [defendant].” The judge questioned defendant directly and confirmed that he, indeed, did not want the jury to consider manslaughter. Defendant gave no reason for his stance; he simply conveyed a sense of resigned fatalism, lamenting that “[i]f the jury feels that I intentionally caused the death of Mr. Gardner, there is nothing I can do about it,” and declaring that he was prepared for whatever decision the jury might make.

Hearing this, the defense attorney asked to confer with his client again. The judge agreed to give him five minutes, but pointed out that the jury was waiting and that “[w]e have gone through this three times.” The defense attorney countered “I understand, but I view this as so critical.” At that point, the prosecutor jumped in, stating that the People requested a charge of first-degree manslaughter to “protect the appellate record.” The judge, admonishing that he was “going to stop” the prosecutor right there, added “[t]hat is the last we are going to hear about it. I will have [the defense attorney] discuss with [defendant] whether or not he wants to include those lesser included offenses. If he does, we will come back in 5 minutes.” With that, the judge directed the defense attorney to review the proposed charge, which included intentional and reckless manslaughter, with his client.

After the brief recess, the judge twice verified with defendant that he did not want the jury to consider first- and second-degree manslaughter. The defense attorney made clear that he had advised defendant against this course of action, explaining to him “that the punishment for murder exceeds greatly the punishment for the lesser included[s], and I know what my advice would be,” to which the judge interjected “[fit’s actually what your advice was.” The judge, after confirming with defendant yet again that he did not want the jury charged on the lesser-included offenses, advised “[s]o I am taking them out,” and handed down a verdict sheet specifying two crimes only: second-degree murder and second-degree assault.

When the judge asked the defense attorney if he had reviewed the verdict sheet himself and shared it with defendant, the attorney replied affirmatively, and noted that he was “showing the verdict sheet to [defendant] with the two charges” because he “want[ed] to make sure it’s satisfactory to him . . . [and] to make sure that [he] ha[d] discharged [his] ethical obligation” to his client. The judge reassured him that

“we can’t do any more than we have done. We have explained everything. The record is clear. We have included what [defendant] wants included. We have taken [out] what [defendant] wants taken out. The Court was willing to acquiesce to your requests but a]t this point, we are going to go with murder 2 and assault 2.”

The judge then asked the defense attorney if he had any objection to the verdict sheet, and the following exchange ensued:

“[DEFENSE COUNSEL]: No. To the verdict sheet as it stands now, it doesn’t give the jury all the charges that I requested.
“As far as any other objection; no.
“THE COURT: I don’t want the record to be misleading at all. You have requested only 2 charges.
“[DEFENSE COUNSEL]: The defendant, through me, requested 2 charges.
“THE COURT: These are the 2 charges that you requested.
“[DEFENSE COUNSEL]: That’s correct.
“THE COURT: Your advice was different.
“[DEFENSE COUNSEL]: Yes.
“THE COURT: But your request is these 2 charges?
“[DEFENSE COUNSEL]: My request is consistent with the defendant’s request.”

The judge next denied the defense attorney’s application to instruct the jury, as part of the justification charge, that defendant did not have a duty to retreat if attacked in his dwelling (see Penal Law § 35.15 [2] [a] [i] [no duty to retreat where the accused is in his or her dwelling and is not the initial aggressor]). The judge rejected the attorney’s argument that the third floor’s common areas (e.g., the kitchen and/or the hallway) might constitute part of defendant’s dwelling. In his view, defendant’s dwelling was restricted under the facts of this case to his bedroom, his only private space.

After deliberating over the course of three days, the jury acquitted defendant of assault and convicted him of murder; Supreme Court subsequently sentenced defendant to prison for an indeterminate term of 22 years to life. Upon defendant’s appeal, the Appellate Division unanimously affirmed (79 AD3d 189 [2d Dept 2010]).

Addressing first whether the decision to ask for lesser-included offenses was “strategic,” and therefore entrusted to the attorney, or “fundamental,” and so reserved to the accused, the Appellate Division remarked that courts in various jurisdictions had reached “conflicting conclusions” (id. at 198-199). The court took the position, however, that it did not need to resolve the proper allocation of decisionmaking authority between defendant and his defense attorney under the facts presented because if “fundamental,” defendant’s choice was repeatedly articulated on the record and the trial judge honored his wishes; but if “strategic,” a reasonable defense attorney could have chosen not to overrule defendant, and acquiescence did not make the representation constitutionally defective (id. at 201-202).

Assuming that the shared kitchen was part of defendant’s “dwelling,” the court next concluded that “the evidence disproving the defense of justification was overwhelming”; and further, “there [was] no significant probability, or even a reasonable possibility, that the verdict would have been different had the ‘no duty to retreat’ instruction been given[, so] any error in the court’s charge was harmless” (id. at 205). Finally, the court decided that the verdict was not against the weight of the evidence. A Judge of this Court granted defendant leave to appeal (17 NY3d 793 [2011]).

IL

This appeal calls upon us to consider how decisionmaking authority is allocated within the attorney-client relationship with respect to submission of lesser-included offenses to the jury. Is this decision fundamental—comparable to how to plead and whether to waive a jury, take the stand or appeal—and therefore reserved to the accused (see Jones v Barnes, 463 US 745, 751 [1983]), or is it a matter of strategy and tactics, ultimately for the defense attorney to decide? As one noted commentator put it:

“Apart from disagreements concerning the entry of an insanity plea, perhaps the most troubling source of contention [between client and attorney in a criminal case] is the decision whether to consent to submitting to the jury counts or charges lower than, or included in, the most serious count of the indictment. Tactically, the choice is whether to ‘go for broke,’ that is, have the jury vote up or down on the gravest charge, or to provide a possible locus of compromise. Part gamble, part experience, it is difficult to say whether this vital choice belongs among the defendant’s reserved prerogatives or has been ceded to the wisdom and caution of counsel” (H. Richard Uviller, Calling the Shots: The Allocation of Choice between the Accused and Counsel in the Defense of a Criminal Case, 52 Rutgers L Rev 719, 748 [2000]).

In the second edition of its norms of practice for criminal defense counsel, the American Bar Association (ABA) resolved this issue by advising that it was

“important in a jury trial for the defense lawyer to consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury. Indeed, because this decision is so important as well as so similar to the defendant’s decision about the charges to which to plead, the defendant should be the one to decide whether to seek submission to the jury of lesser included offenses. For instance, in a murder prosecution, the defendant, rather than the defense attorney, should determine whether the court should be asked to submit to the jury the lesser included offense of manslaughter” (ABA Standards for Criminal Justice, The Defense Function, standard 4-5.2, Commentary at 4.68 [2d ed 1980] [emphasis added] [hereafter, 1980 ABA Commentary]).

In the third edition issued in 1993, however, the ABA omitted the last two sentences in this paragraph (see ABA Standards for Criminal Justice, Defense Function, standard 4-5.2, Commentary at 202 [3d ed 1993] [hereafter, 1993 ABA Commentary]), seemingly signaling an about-face.

Since issuance of the 1993 ABA Commentary, courts have uniformly decided that whether or not to ask the trial judge to instruct the jury on lesser-included offenses is a matter of strategy and tactics ceded by a defendant to his lawyer (see e.g. State v Eckert, 203 Wis 2d 497, 508-509, 553 NW2d 539, 544 [1996] [noting that the “proposition contained within the (1980 ABA Commentary did) not contain any citation to authority” and observing that the decision whether to request lesser-included offenses is “a complicated one involving legal expertise and trial strategy”]; Mathre v State, 2000 ND 201, ¶¶ 1, 6, 619 NW2d 627, 628, 630 [2000] [holding that the defendant “was not denied effective assistance of counsel by her attorney’s failure to confer with her about whether to submit lesser included offenses for jury consideration” and commenting that ABA standard 4-5.2 “does not list the decision to submit lesser included offenses as one which must be made by the defendant and not her attorney”]; Simeon v State, 90 P3d 181, 184 [Alaska Ct App 2004] [rejecting the defendant’s argument, based on the 1980 ABA Commentary, that he, rather than his lawyer, should have made the decision whether to seek jury instructions on lesser-included offenses and observing that “the commentary (was) only intended as a guide to interpretation,” it was revised in 1993 anyway and the judicial decisions cited by the defendant “appear to be a minority (which) rely on the (1980 ABA Commentary) without addressing or acknowledging the current commentary”]; Cannon v Mullin, 383 F3d 1152, 1167 [10th Cir 2004] [rejecting claim of ineffective assistance because “(w)hether to argue a lesser-included offense is a matter to be decided by counsel after consultation with the defendant”]; Arko v People, 183 P3d 555, 556, 558 [Colo 2008] [holding that “the decision whether to request jury instructions on lesser offenses is a tactical decision that rests with defense counsel after consultation with the defendant,” reasoning that “a defendant retains all of his trial rights” and “also retains the opportunity to advocate for outright acquittal”]; State v Grier, 171 Wash 2d 17, 32, 246 P3d 1260, 1268 [2011] [indicating that “the decision to exclude or include lesser included offense instructions is a decision that requires input from both the defendant and her counsel but ultimately rests with defense counsel”]; see also Van Alstine v State, 263 Ga 1, 3, 426 SE2d 360, 363 [1993] [declining to follow the 1980 ABA Commentary because the decision whether to pursue lesser-included offenses “is often based on legal complexities only the most sophisticated client could comprehend, not unlike the tactical decisions involved regarding the assertion of technical defenses”]).

Other courts have essentially simply assumed that whether to request lesser-included offenses is a strategic or tactical decision made by defense counsel (see People v Taylor, 2 AD3d 1306, 1308 [4th Dept 2003] [“defendant was not denied his right to make a fundamental decision( ) when the court (in a nonjury trial) considered a lesser included offense charge after discussing the issue with defense counsel and the prosecutor, without input from defendant”] [internal quotation marks and citation omitted]; see also State v Sheppard, 253 Mont 118, 124, 832 P2d 370, 373 [1992] [“mandatory sua sponte jury instruction on lesser offenses is inconsistent with Montana law and . . . public policy . . . allowing trial counsel to conduct the case according to his or her own strategy”]; Autrey v State, 700 NE2d 1140, 1141 [Ind 1998] [defense counsel’s “tactical decision not to tender a lesser included offense does not constitute ineffective assistance”]; United States v Mays, 466 F3d 335, 342 [5th Cir 2006], quoting United States v Estrada-Fernandez, 150 F3d 491, 496 [5th Cir 1998] [“ ‘In deciding whether to request (a lesser-included offense) instruction, defense counsel must make a strategic choice: giving the instruction may decrease the chance that the jury will convict for the greater offense, but it also may decrease the chance of an outright acquittal’ ”]).

Importantly, a trial court in New York may “in its discretion” submit a lesser-included offense “if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater” (CPL 300.50 [1]). And where a reasonable view of the evidence supports submission of a lesser-included offense, the court “must do so” if “requested by either party ” (CPL 300.50 [2] [emphases added]). This rule came about

“to benefit, where appropriate and consistent with the evidence, the defendant with the jury’s unspoken mercy dispensing power and to help the prosecution, simultaneously and also where appropriate, conclude a case without the necessity of retrial if an element of a crime is not proved at trial and the jury can have the opportunity to dispense the common sense justifiable and substantial lesser result” (Joseph W. Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 300.50 at 609 [1982 ed]).

Defendant makes the point that, in light of CPL 300.50, the decision whether to ask for a lesser-included charge differs critically “from the decisions that are personal to the defendant” and therefore fundamental as “it makes little sense to hold that the defendant personally has the last say about an issue when the defense as a whole does not” (emphasis added) (cf. People v Davis, 13 NY3d 17, 30 [2009] [stressing that CPL 350.20 requires the “parties(’) agreement,” not defendant’s personal consent, when holding that “the decision whether to agree to JHO adjudication of a petty criminal case represents the sort of ‘tactical decision’ best left to the determination of counsel”]). We agree.

The People analogize an instruction on lesser-included offenses to a guilty plea, citing the Illinois Supreme Court’s opinion in People v Brocksmith (162 Ill 2d 224, 229, 642 NE2d 1230, 1232 [1994] [“Because it is defendant’s decision whether to initially plead guilty to a lesser charge, it should also be defendant’s decision to submit an instruction on a lesser charge at the conclusion of the evidence”]), which relied on the 1980 ABA Commentary; or the submission to the jury of the affirmative defense of extreme emotional distress (EED), citing People v Petrovich (87 NY2d 961, 963 [1996] [“the submission of the (EED) defense to the jury could ... be determinative of the verdict,” which “is not unlike a defendant, who represented by counsel, retains the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify (on one’s) own behalf, or take an appeal”] [internal quotation marks omitted]). But unlike the situation with lesser-included offenses, a decision to plead guilty rests exclusively with a defendant. Similarly, the EED defense can be given to the jury only upon a defendant’s request; the People may not seek and a court may not submit this defense to the jury over a defendant’s objection (see People v Bradley, 88 NY2d 901, 902 [1996]).

Here, the defense attorney asked the trial judge to submit first- and second-degree manslaughter to the jury; he repeatedly voiced his professional judgment that it was in his client’s best interests for the jury to be instructed on these lesser-included offenses. The judge, however, made plain that he would be guided solely by defendant’s choice in the matter, despite the defense attorney’s clearly stated views and advice to the contrary. This was error because the decision was for the attorney, not the accused, to make. By deferring to defendant, the judge denied him the expert judgment of counsel to which the Sixth Amendment entitles him.

We emphasize that this is not a case where, after consulting with and weighing the accused’s views along with other relevant considerations, an attorney decides to forgo submission of lesser-included offenses to the jury. The record shows that the defense attorney never deviated from his position that “going for broke” was tactically unwise; rather, the judge was unwilling to submit lesser-included offenses unless defendant agreed. In short, the defense attorney never “acceded” or “acquiesc[ed]” to defendant’s decision (see 79 AD3d at 203, 204) except to the extent the judge impermissibly left him no alternative.

Next, we cannot say that the error here was harmless beyond a reasonable doubt (see People v Wardlaw, 6 NY3d 556 [2006] [holding that under certain circumstances the harmless error rule may be applied where the right to counsel has been violated]). The trial judge concluded that there was a reasonable view of the evidence to support a conviction for manslaughter but not murder; the prosecutor agreed in part, at one point himself requesting submission of first-degree manslaughter to the jury. On this record, the jurors decided that defendant, a man in his very early forties with no prior criminal record, did not intend to inflict physical injury on Jones, and might well have found him guilty of manslaughter rather than murder when he killed Gardner.

In light of our disposition of this appeal, we need not reach and do not express an opinion whether Supreme Court should have instructed the jury on the “no duty to retreat” exception to the justification charge. Accordingly, the order of the Appellate Division should be reversed, and a new trial ordered.

Jones, J. (dissenting).

Because I believe the trial court did not commit reversible error in complying with defendant’s decision that first- and second-degree manslaughter not be charged as lesser-included offenses of murder, I respectfully dissent. The question raised by this appeal is whether the trial court abrogated defendant’s Sixth Amendment right to counsel by not submitting a lesser-included offense charge when defendant who had fully consulted with defense counsel on why the lesser-included offense charge was being sought, and had been repeatedly advised by both the court and defense counsel that such a charge was in his best interest and supported by the law, disregarded the advice and decided he did not want that charge submitted to the jury.

In this case, defense counsel, after the evidence portion of the trial, asked the court to submit first- and second-degree manslaughter to the jury as lesser-included offenses of second-degree murder. Among other things, defense counsel told the court he had explained to defendant, who had asserted the defense of justification, that a lesser-included charge would afford the jury the opportunity to reach a compromise verdict on manslaughter, which would carry much less prison time than murder. Subsequently, defense counsel, on the record, withdrew his request after further discussion with defendant. Defense counsel stated defendant had decided, against his advice, that the manslaughter offenses should not be submitted to the jury because he believed the evidence showed that he acted in self-defense. After discussions on and off the record, the trial court indicated that it would not submit the lesser-included counts to the jury.

Although a criminal defendant who is represented by counsel relegates control of much of the case to the lawyer (see People v Ferguson, 67 NY2d 383, 390 [1986]), the overwhelming majority of recent jurisprudence—concerning the consultation and agreement between defense counsel and client on lesser-included offenses—leans toward permitting a defendant to participate in the decision making process (see ABA Standards for Criminal Justice, Defense Function, standard 4-5.2, Commentary at 202 [3d ed 1993] [ABA commentators wrote, “(fit is . . . important in a jury trial for defense counsel to consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury”]). Indeed, most controversies have come about because the defendant was not consulted or given an opportunity to express his opinion as to whether or not lesser included charges should be included in the verdict sheet (see e.g. People v Taylor, 2 AD3d 1306, 1308 [4th Dept 2003]). That is not what happened in the case presently before us.

Here, defendant was fully consulted by counsel on whether to include the charges of first-degree (intentional) manslaughter and second-degree (reckless) manslaughter as lesser-included counts to be considered by the jury. But defendant ultimately objected to the submission of the lesser-included counts. After defendant consulted with his attorney, the court chose to speak with defendant directly. In that exchange, defendant clearly insisted that he did not want the lesser-included charges placed before the jury. In short, both defense counsel and the court tried, unsuccessfully, to persuade defendant that it would be to his benefit to have these additional charges considered. Moreover, while defense counsel expressed his disagreement with defendant by saying that in his judgment the counts ought to be submitted, he did not specifically object when the lesser-included counts were not submitted. Instead he withdrew his request for the charge, effectively acceding to the wishes of his client.

The facts of this case not only highlight that defense counsel fully consulted defendant, they also make clear that defendant fully participated in the discussion and decision concerning whether the lesser-included counts charge should be submitted to the jury. This is not a case where defense counsel told defendant what the decision was and defendant silently accepted it, or where defense counsel did not advise defendant of the decision. Here, defendant was a full participant in the decision, and exercised his right to disagree with counsel and object to a particular course of action. Because a defendant has the most to lose in a criminal proceeding (i.e., freedom), reason dictates that the defendant shall control his/her own destiny and have the ultimate authority regarding choices he/she makes (even if against the advice of counsel). Our decision in People v Petrovich (87 NY2d 961 [1996]) illustrates this point.

In Petrovich, defendant was accused of murder, and, at trial, he asserted he was suffering from a mental disease or defect at the time of the incident. At the conclusion of the evidence, defense counsel requested a charge of extreme emotional disturbance. However, the next day, counsel withdrew the request at the insistence of defendant, despite his advice to the contrary. The trial court gave defendant and counsel additional time to discuss the matter, but defendant did not change his mind. The trial court did not give the charge, concluding that the defendant’s decision was determinative. Defendant was convicted of second-degree murder (two counts). On appeal, defendant argued, similar to defendant in the case at bar, that the trial court deprived him of his Sixth Amendment right to counsel. This Court concluded that the trial court did not abrogate the defendant’s Sixth Amendment right to counsel, reasoning that defendant, who, according to the record, (1) perceived that charging both second-degree murder and first-degree manslaughter would afford the jury two opportunities to convict; and (2) “calculated that eliminating consideration of manslaughter increased his chance for an acquittal,” could not “complain” on appeal “that his miscalculation translated] into a forced relinquishment of the right to counsel” (87 NY2d at 963).

Applying the reasoning set forth in Petrovich here, defendant, who objected to the lesser-included offense charge because he believed the evidence showed he acted in self-defense, cannot now complain about his own miscalculation. The defendant’s choice to reject a charge of lesser-included offenses does not amount to a forced relinquishment, by the trial court, of the right to counsel.

Moreover, defendant’s considered decision—rejecting the submission of lesser-included offenses—is completely consistent and logical in light of his assertion of the justification defense. Certain defenses—e.g., the defenses of alibi, mistaken identification and justification—are unique in that their acceptance by the jury results in a complete exoneration (i.e., acquittal of the charges). But, the submission of lesser-included offenses in a case where such a defense is asserted dilutes the force and effect of the defense itself. Petit juries, which are not instructed concerning the legal bases (and subtleties) of lesser-included offenses, would understandably find it hard to accept that a defendant acted in self-defense if lesser-included offenses are available because such charges signal that defendant is seeking a compromised verdict. In short, charging the jury on lesser-included offenses where the defense of justification has been asserted invites a jury to disregard justification and focus on the question of the defendant’s mental state (here, intent and/or recklessness).

Finally, if the court had rejected the defendant’s position and charged the lesser-included offenses over his objection, an acquittal on the top count together with a conviction of a charged lesser-included count may result in reversible error. In this circumstance, defendant would have an appealable issue regardless of whether the lesser-included offenses were submitted to the jury or not.

Accordingly, I would affirm the order of the Appellate Division in this case.

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

Order reversed, etc.

       The dissent makes the point that defendant might have had an appeal-able issue whether or not the trial judge submitted the lesser-included offenses to the jury (dissenting op at 36). We agree the judge faced a dilemma, caused by the uncertainty in the law which today’s decision dispels.

       Even if the lesser-included offenses of intentional and reckless manslaughter were supported by a reasonable view of the evidence, the trial court’s decision not to submit those charges to the jury, in light of the withdrawn request for the lesser-included charge, was not error (see CPL 300.50 [2]; People v Crique, 63 AD3d 566 [1st Dept 2009]).


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    [980 NE2d 483, 956 NYS2d 435]
    Siegmund Strauss, Inc., Respondent, v East 149th Realty Corp., Defendant, Windsor Brands, Ltd., et al., Appellants.
    Argued September 6, 2012;
    decided October 23, 2012

      POINTS OF COUNSEL

      Mischel & Horn, P.C., New York City (Scott T. Horn and Naomi M. Taub of counsel), for appellants.
    I. The Appellate Division erred in failing to review the interlocutory orders which necessarily affected the final judgment. (Silverman v Bryan, 216 AD2d 554; American Cleaners, Inc. v American Intl. Specialty Lines Ins. Co., 68 AD3d 792; Bogal v Finger, 59 AD3d 653; Marini v Lombardo, 39 AD3d 824; Oakwood Realty Corp. v HRH Constr. Corp., 19 AD3d 668; Sunrise Plaza Assoc. v International Summit Equities Corp., 288 AD2d 299; Ahmadi v Romano, 226 AD2d 409; Hunan 7 [N.Y.C.] v Ding, 216 AD2d 356; Matter of Goldstein v New York State Urban Dev. Corp., 13 NY3d 511; Alvira v Residential Mgt., 89 AD3d 437.) II. The Appellate Division erred in failing to review the February 25, 2008 order on direct appeal therefrom. (Matter of Aho, 39 NY2d 241; Burnell v Marine Midland Bank, 288 AD2d 784.) III. The Appellate Division erred in failing to review the prior orders in the interest of justice. (Matter of Aho, 39 NY2d 241; Aridas v Caserta, 41 NY2d 1059; Lomonaco v United Health Servs. Hosps., Inc., 16 AD3d 958.) IV The Appellate Division erred in affirming the final judgment. (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144; Foley v D’Agostino, 21 AD2d 60; Dulberg v Mock, 1 NY2d 54; Sheila C. v Povich, 11 AD3d 120; Leon v Martinez, 84 NY2d 83; Guggenheimer v Ginzburg, 43 NY2d 268; Fahey v County of Ontario, 44 NY2d 934; Cherry v Time Warner, Inc., 66 AD3d 233; Reyes v City of New York, 63 AD3d 615; Pier 59 Studios, L.P. v Chelsea Piers, L.P., 40 AD3d 363.)

      LeClairRyan, New York City (Barry A. Cozier and Ralph Berman of counsel), for respondent.
    I. The trial court’s interlocutory orders did not “necessarily affect” the trial court’s final judgment. (Dog Owners Assn. of N.Y. State, Inc. v Hilleboe, 206 Misc 119, 307 NY 734; Matter of Aho, 39 NY2d 241; Silverman

      v Bryan, 216 AD2d 554; Barrett Japaning, Inc. v Bialobroda, 68 AD3d 474; Bogal v Finger, 59 AD3d 653; Marini v Lombardo, 39 AD3d 824; Oakwood Realty Corp. v HRH Constr. Corp., 19 AD3d 668; Sunrise Plaza Assoc. v International Summit Equities Corp., 288 AD2d 299; Ahmadi v Romano, 226 AD2d 409; Mars Assoc. v New York City Educ. Constr. Fund, 126 AD2d 178.) II. Appellants cannot pursue an independent postjudgment appeal of the trial court’s non-final order. (Matter of Aho, 39 NY2d 241; LaBarbera v New York Eye & Ear Infirmary, 91 NY2d 207; People v Beige, 41 NY2d 60; Lomonaco v United Health Servs. Hosps., Inc., 16 AD3d 958.)
   OPINION OF THE COURT

Jones, J.

The primary question in this commercial dispute involving, among other things, the right to a leasehold to certain commercial property, is whether, pursuant to the “necessarily affects” requirement (CPLR 5501 [a] [1]), defendants’ appeal to the Appellate Division from a judgment declaring plaintiff Siegmund Strauss, Inc. (Strauss) the lawful tenant of the subject property brought up for review two non-final Supreme Court orders: one dismissing defendants’ counterclaims and third-party complaint (2007 NY Slip Op 32436[U] [2007]) and the other denying defendants’ motion for leave to amend their answer. We conclude the Appellate Division improperly held that defendants’ appeal from the judgment did not bring up for review the order dismissing defendants’ counterclaims and third-party complaint. That is, the Appellate Division erred in ruling that this order did not necessarily affect the final judgment. We do not find it necessary to address the reviewability of the order denying defendants’ motion for leave to amend. Accordingly, we modify the order of the Appellate Division.

Strauss, a wholesale food and beverage vendor, entered into negotiations with defendants Windsor Brands, Ltd. (Windsor) and Twinkle Import Co., Inc. (Twinkle) to merge their corporations and operate out of a building located at 520 Exterior Street (also known as 110 East 149th Street) in the South Bronx. The building was leased by Windsor. Windsor and Twinkle were wholly owned and operated by defendants Robert and Teresa Rodriguez. Strauss and the Rodriguezes drafted but did not execute a contract to merge their businesses by which (1) Strauss would move onto the premises and Windsor would use its best efforts to help Strauss negotiate a new lease with defendant East 149th Realty Corp. (landlord), (2) Strauss would purchase Windsor’s assets for $100,000, (3) Windsor and Twinkle would dissolve and (4) the Rodriguezes would purchase a one-third interest in the resulting merged corporation. Subsequently, Strauss and the Rodriguezes began performing under the purported merger agreement even though the contract had not yet been executed, i.e., the Rodriguezes helped Strauss move into the premises, Twinkle terminated its business, and Windsor’s and Twinkle’s employees became Strauss’s employees.

After a dispute arose between the parties, Strauss sought to buy the Rodriguezes out of the merged corporation, but no buyout agreement was ever reached. Strauss subsequently removed the Rodriguezes from the corporation’s payroll and changed the locks on the premises. Further, it is alleged that Strauss never paid the Rodriguezes the agreed upon $100,000 for Windsor’s assets.

In June 2006, Strauss commenced this action against the Rodriguezes and landlord, seeking, among other things, a judgment declaring that it was the tenant entitled to sole possession of the property located at 520 Exterior Street, subject to a new lease with landlord. In their answer, the Rodriguezes counterclaimed against Strauss and asserted a third-party complaint against Strauss’s principals, alleging fraud, conversion, and tortious interference with a contractual relationship. They did not assert a breach of contract claim. Strauss and its principals moved to dismiss the counterclaims and third-party complaint for failure to state a cause of action.

By order entered August 6, 2007, Supreme Court granted Strauss’s motion, dismissing the counterclaims and the third-party complaint. The court reasoned that the Rodriguezes’ allegations made out only a breach of contract claim, not the tort claims identified in their answer. The Rodriguezes did not appeal to the Appellate Division from the August 2007 order prior to trial and entry of judgment.

After Strauss filed its note of issue, certifying readiness for trial, the Rodriguezes moved for leave to amend their answer, counterclaims, and cross claims, and to file a third-party complaint to assert claims for breach of contract. But Supreme Court, by order entered February 25, 2008, denied the motion as untimely. The Rodriguezes appealed to the Appellate Division from the February 2008 order, but did not perfect the appeal.

A bench trial proceeded solely on the issue of possession of the subject premises. After trial, the court adjudged Strauss the lawful tenant of the premises, subject to a lease with landlord. Judgment was entered April 7, 2009. The Rodriguezes appealed to the Appellate Division from the judgment, seeking to review the August 2007 and February 2008 orders.

The Appellate Division affirmed the judgment, holding that the appeal from the judgment did not bring up for review the prior Supreme Court orders (81 AD3d 260 [1st Dept 2010]). Specifically, the court found the August 2007 and February 2008 orders did not “necessarily affect” the April 2009 judgment because, if those orders were reversed, the Rodriguezes’ “claims would be reinstated and they would be permitted to pursue a claim for breach of contract. However, the judgment which declared that Strauss was entitled to possession of the leased premises would still stand” (id. at 265). The court also denied the Rodriguezes’ motion for enlargement of time to perfect their direct appeal of the February 2008 order and dismissed that appeal.

Defendants appeal pursuant to leave granted by this Court from so much of the Appellate Division order which affirmed Supreme Court’s April 2009 judgment (17 NY3d 936 [2011]). They argue that the August 2007 and February 2008 orders are reviewable upon appeal from the April 2009 judgment because they necessarily affect that judgment.

The correctness of a final judgment may turn on the correctness of an intermediate non-final order(s); thus, it is the practice of this state that an appeal from a final judgment may, on certain occasions, bring up for review the non-final order(s). Pursuant to CPLR 5501 (a) (1), an appellate court is permitted to review, on an appeal from a final judgment, any non-final determination necessarily affecting the final judgment which has not been previously reviewed by the appellate court. Although it is difficult to distill a rule of general applicability regarding the “necessarily affects” requirement, Karger has put forth a definition that is helpful in resolving many cases. According to Karger, a non-final order “necessarily affects” a final judgment “if the result of reversing that order would necessarily be to require a reversal or modification of the final [judgment]” and “there shall have been no further opportunity during the litigation to raise again the questions decided by the [non-final] order” (Karger, Powers of the New York Court of Appeals § 9:5 at 304-305, 311 [3d ed rev]).

In reaching its conclusions, the Appellate Division below relied on a test suggested by Professor David Siegel as “not perfect but helpful”: “[A]ssuming that the nonfinal order or judgment is erroneous, would its reversal overturn the judgment? If it would, it’s a reviewable item; if it would not, and the judgment can stand despite it, it is not reviewable” (Siegel, NY Prac § 530 at 940 [5th ed 2011]). Applying this test, the Appellate Division ruled that because the April 2009 judgment would stand if the August 2007 and February 2008 orders were reversed, those non-final orders did not necessarily affect the judgment.

The Appellate Division’s ruling that the prior non-final order dismissing the defendants’ counterclaims and third-party claims is not reviewable—because it did not necessarily affect the final judgment—does not comport with our jurisprudence (see e.g. Draper v Georgia Props., 94 NY2d 809 [1999] [Court implicitly concluded that an intermediate order dismissing a counterclaim necessarily affects the final judgment]; Lasidi v Financiera Avenida, 73 NY2d 947 [1989] [same as Draper]; Karlin v IVF Am., 93 NY2d 282, 290 [1999] [Court explicitly stated that an intermediate order dismissing a cause of action necessarily affects the final determination]; Scarangella v Thomas Built Buses, 93 NY2d 655 [1999] [Court implicitly concluded same]; Bartoo v Buell, 87 NY2d 362 [1996] [same as Scarangella]). Thus, where the prior non-final order dismissed a cause of action or counterclaim pleaded in a complaint or answer, this Court has not applied a definition of “necessarily affects” as narrow as that employed by the Appellate Division in this case. To satisfy “necessarily affects” in this context, it is not required, as the Appellate Division held, for the reinstatement of the Rodriguezes’ counterclaim upon a reversal or modification to overturn completely the judgment which declared that Strauss was entitled to possession of the leased premises.

Supreme Court, pursuant to CPLR 3211 (a) (7), dismissed the Rodriguezes’ counterclaims and the third-party complaint. Specifically, Supreme Court dismissed the Rodriguezes’ fraud and conversion claims because it determined that the facts as alleged only made out a claim for breach of contract. Thus, consistent with an aspect of the necessarily affects requirement recognized by Karger, the August 2007 order necessarily affected the final judgment because it was in that order Supreme Court dismissed the counterclaims and third-party claim pursuant to CPLR 3211 (a) (7). Put another way, because Supreme Court’s dismissal of the counterclaims and third-party claim necessarily removed that legal issue from the case (i.e., there was no further opportunity during the litigation to raise the question decided by the prior non-final order), that order necessarily affected the final judgment. In light of the foregoing, the Appellate Division erred in holding that the Rodriguezes’ appeal from Supreme Court’s April 2009 final judgment did not bring up for review the August 2007 non-final order because the August 2007 order necessarily affected the April 2009 final judgment. Accordingly, we remit this matter to the Appellate Division for review of Supreme Court’s August 2007 order, together with the final judgment.

Because the review that we find permissible goes to a motion directed to the counterclaims and third-party claim as originally pleaded, we find it unnecessary to address the order denying the motion to amend the answer.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be modified, without costs, by remitting the matter to that court for further proceedings in accordance with this opinion and, as so modified, affirmed.

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

Order, insofar as appealed from, modified, etc.

      . On October 20, 2006, Strauss and landlord executed a new lease, and Strauss subsequently withdrew its claims against landlord.

      . The remaining portion of the Appellate Division order, dismissing the Rodriguezes’ direct appeal from the February 2008 order, is non-final. Therefore, this Court dismissed the Rodriguezes’ motion insofar as they sought leave to appeal from the non-final part of the Appellate Division order (17 NY3d at 936).

      . CPLR 5501 (a) (1) provides:
      “An appeal from a final judgment brings up for review . . . any non-final judgment or order which necessarily affects the final judgment, including any which was adverse to the respondent on appeal from the final judgment and which, if reversed, would entitle the respondent to prevail in whole or in part on that appeal, provided that such non-final judgment or order has not previously been reviewed by the court to which the appeal is taken.”

      . When deciding a 3211 (a) (7) motion, the facts as alleged in the complaint and the opposition papers must be accepted as true; the court must accord the plaintiff the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory.


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

text:
    [980 NE2d 491, 956 NYS2d 443]
    The People of the State of New York, Respondent, v Sandy Fernandez, Appellant.
    Argued September 13, 2012;
    decided October 25, 2012

      POINTS OF COUNSEL

      Steven Banks, Legal Aid Society, New York City (Svetlana M. Kornfeind of counsel), for appellant.
    The accusatory instrument charging appellant with a traffic misdemeanor is a jurisdictionally defective misdemeanor complaint, where it is denominated “Complaint/Information,” and where the instrument alleges evidentiary facts purporting to establish the elements of the offense charged but omits entirely facts supporting “reasonable cause” to believe that appellant knew or had reason to know he was driving with a suspended or revoked license. (People v Casey, 95 NY2d 354; People v Dreyden, 15 NY3d 100; People v Nuccio, 78 NY2d 102; People v Di Gioia, 98 Misc 2d 359; People v Burwell, 53 NY2d 849; People v Alejandro, 70 NY2d 133; People v Kalin, 12 NY3d 225; People v Hall, 48 NY2d 927; People v Jones, 9 NY3d 259; People v Konieczny, 2 NY3d 569.)

      Charles J. Hynes, District Attorney, Brooklyn (Terry-Ann Corniffe and Leonard Joblove of counsel), for respondent.
    The accusatory instrument was a facially sufficient simplified traffic information. (People v Nuccio, 78 NY2d 102; People v Key, 45 NY2d 111; People v Weinert, 178 Misc 2d 675; People v Beattie, 80 NY2d 840; People v Connor, 63 NY2d 11; People v Monclavo, 87 NY2d 1029; People v Casey, 95 NY2d 354; People v Delmonaco, 16 Misc 3d 526; People v Gindi, 166 Misc 2d 672; People v Weinberg, 34 NY2d 429.)
   OPINION OF THE COURT

Chief Judge Lippman.

The issue presented by this appeal is whether the accusatory instrument was a facially sufficient simplified traffic information, although it was titled “Complaint/Information,” and contained factual information. For the reasons set forth below, we hold that the accusatory instrument was sufficient to serve as a simplified traffic information because it was substantially in the form prescribed by the Commissioner of Motor Vehicles.

On January 9, 2009, defendant was arrested and arraigned on charges of aggravated unlicensed operation of a motor vehicle pursuant to Vehicle and Traffic Law § 511 (1) (a). Defendant had 13 prior license suspensions. The accusatoiy instrument was four by eight inches and the front of the accusatory instrument was denominated, ‘ COMPLAINT/INFORMATION. ’ ’ In a space designated, “Description of Violation,” the instrument stated, “Aggravated Unlicensed Operator.” The instrument listed defendant’s name, address, date of birth, sex, license information, vehicle description and vehicle registration information. The accusatory instrument also listed the date, time and address at which defendant was stopped. The reverse side was denominated “CRIMINAL COURT INFORMATION (DESCRIBE OFFENSE),” and was accompanied by the following handwritten description: “At t/p/o, A/O observed Deft driving S/B on 4th Ave & 40th St operating a Black, 1998 Lincoln Town car Indiana Plate #1375E complete a left turn onto 40th St. across three lanes of traffic. Informed by DMV that Deft license revoked (13 on 7 dates) [sic].”

A box was marked indicating outstanding warrants had been checked. The arresting officer dated and signed the instrument immediately below the factual write up, that the officer “PERSONALLY OBSERVED THE COMMISSION OF THE OFFENSE CHARGED HEREIN.”

Traffic misdemeanors may be prosecuted in criminal court by a misdemeanor information, misdemeanor complaint or simplified traffic information. A facially sufficient misdemeanor complaint complies with the form and content requirements of CPL 100.15 and, in its factual portion, alleges evidentiary facts providing reasonable cause to believe that the defendant committed the offense charged. (CPL 100.15 [3]; 100.40 [4] [b].) Omission of an element of the charged crime renders a misdemeanor complaint jurisdictionally defective (People v Dreyden, 15 NY3d 100 [2010]). A defendant may only be prosecuted upon a misdemeanor complaint if prosecution by misdemeanor information is waived.

As defined in CPL 100.10 (2), a simplified traffic information is a streamlined instrument designed for the expeditious processing of traffic infractions; it is a short, written accusation, signed by a police officer and filed with a criminal court. Evidentiary facts are not required. To be facially sufficient, the instrument must also comply with the requirement of CPL 100.25 (1) that it be “substantially in the form prescribed by the commissioner of motor vehicles” (emphasis added).

The arraignment court declined to rule on “whether . . . this is a simplified traffic [information],” or a misdemeanor complaint. Defense counsel waived the reading of defendant’s rights—which included the reading of his right to have a supporting deposition filed—and waived prosecution by information “Q]ust in case,” and defendant pleaded guilty to the misdemeanor of aggravated unlicensed operation of a motor vehicle in the third degree, under Vehicle and Traffic Law § 511 (1) (a), in exchange for a $350 fine and a conditional discharge that required him to clear up his outstanding traffic tickets. Defendant violated the terms of the conditional discharge, and the court sentenced him to 30 days, a term that has been fully served.

Defendant challenged his conviction by arguing that the accusatory instrument was a facially insufficient misdemeanor complaint, because it omitted an element of the offense charged. The People, on the other hand, argued that the accusatory instrument was a simplified traffic information, which required no factual allegations.

The Appellate Term held that

“although the accusatory instrument is denominated a ‘complaint/information,’ it is a sufficient simplified traffic information since it designates the offense charged, substantially conforms to the form prescribed by the Commissioner of Motor Vehicles and provides the court with sufficient information to establish that it has jurisdiction to hear the case” (31 Misc 3d 144[A], 2011 NY Slip Op 50932[U], *1 [2011] [citations omitted]).

The Appellate Term relied on People v Ferro (22 Misc 3d 7 [App Term, 2d Dept 2008], lv denied 12 NY3d 757 [2009]), in holding that the title of the instrument is not controlling.

I

Defendant’s main argument is that the accusatory instrument was denominated “Complaint/Information,” and included factual allegations as to only some of the elements of the offense charged, and therefore must be held to be an insufficient misdemeanor complaint, rather than a simplified traffic information. As explained below, we reject this contention.

A

Defendant points to our decision in People v Casey (95 NY2d 354 [2000]) for the proposition that a title controls what a document is and since the document at issue is titled “Complaint/ Information,” it is a misdemeanor complaint.

Casey concerned claims that a misdemeanor information for criminal contempt was jurisdictionally defective because of its hearsay nature (id. at 358-359). The Appellate Term held that since the information would have “qualifie[d] as a misdemeanor complaint,” and since defendant waived the right to be prosecuted by information, it was not jurisdictionally defective (People v Casey, 181 Misc 2d 744, 745 [App Term, 2d Dept 1999], citing People v Connor, 63 NY2d 11 [1984]). We upheld defendant’s conviction, but for different reasons (Casey, 95 NY2d at 359). We explained that we did not find a basis in the record for a waiver of a right to be prosecuted by information (id.). We then noted:

“Moreover, as the Appellate Term acknowledged, the accusatory instrument here was denominated, and purported to be, a misdemeanor information with a supporting deposition, not a misdemeanor complaint. That the instrument would have qualified as a misdemeanor complaint did not make it one. Since the accusatory instrument here was in fact a local criminal court information, and not a misdemeanor complaint, the District Court would not have had the statutory obligation to inform defendant that he ‘may not be prosecuted [on a misdemeanor complaint] . . . unless he consents’ ” (id.).

Nonetheless, we held that the nonhearsay requirement could be satisfied by the contents of the supporting deposition, and, more broadly, an information should be given “a fair and not overly restrictive or technical reading” {id. at 359-360).

Our comment about denomination was a side-note, peripheral to the main holding and relevant only to the issue of waiver. A misdemeanor information is an accusatory instrument alleging nonhearsay evidentiary facts supporting every element of the offense charged. A defendant may be prosecuted by misdemeanor information alone. By contrast, a misdemeanor complaint is a misdemeanor information but with hearsay allegations permitted. A defendant may not be prosecuted by a misdemeanor complaint—and the trial court is required to so inform the defendant—unless prosecution by information is waived, or unless a supporting deposition is filed. Plainly, our comment in Casey was simply about whether the instrument did or did not include hearsay allegations, and what corresponding obligations the trial court had in ensuring that defendant properly waived his rights.

Moreover, a simplified traffic information need only “substantially” conform to the requirements of the Commissioner of Motor Vehicles (CPL 100.25). Title then cannot be dispositive when it is the legislature’s intention that no single part of the form be dispositive. This holistic approach to identifying the form is entirely consistent with the central holding of Casey. There, we said that “[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading” {id. at 360). Furthermore, the Commissioner of Motor Vehicles does not require a simplified traffic information to have any title at all (see 15 NYCRR 122.2). It would be illogical, then, to find that the title of the form governs over its substance (see e.g. People v Chestnut, 19 NY3d 606, 611 n 2 [2012] [noting that a party’s adherence to the preservation rule’s “specific objection” requirement should not “emphasize form over substance”]; People v Vespucci, 75 NY2d 434, 442 [1990] [holding that prosecutor’s alternative arrangement complied with sealing requirement of eavesdropping statute because “(t)o rule otherwise would sacrifice substance for form and not advance” the purposes of the statute]).

The Appellate Term correctly concluded that the principles expressed in People v Ferro were applicable. There, the court held that an accusatory instrument ambiguously denominated "Information/Simplified Information" could function as either a regular or a simplified traffic information because the substance of the document rather than its denomination controlled (22 Misc 3d at 8-9 [distinguishing Casey]).

B

That the simplified traffic information included more factual detail than was required by the statute is inconsequential. After all, the point of an accusatory instrument is to give defendant fair notice of the charges levied against him or her. An excess of detail, therefore, cannot be fatal to its facial sufficiency. As the Appellate Term noted in Ferro, “[i]t would indeed be ironic if an excess of details, beyond the minimum requirements, would undermine the sufficiency of the simplified information[s]” (22 Misc 3d at 9 [internal quotation marks and citation omitted]).

II

Defendant also argues this is not a facially sufficient simplified traffic information since the form used in this case does not comply with 15 NYCRR part 91, promulgated pursuant to Vehicle and Traffic Law § 207, which authorizes the Commissioner of Motor Vehicles to prescribe the form of a uniform summons and complaint in traffic violation cases. Howevei neither Vehicle and Traffic Law § 207 nor 15 NYCRR part 91 apply to simplifled traffic informations in New York City.

Instead, the applicable requirements derive from Vehicle and Traffic Law § 226, which authorizes the Commissioner of Motor Vehicles to prescribe the form of a summons and complaint in traffic cases. The regulation, 15 NYCRR 122.2, promulgated pursuant to Vehicle and Traffic Law § 226, was intended to designate the form to be used for a simplified traffic information, but the regulation was revised in 1978 and now includes neither a sample illustrated form nor the express language “simplified traffic information.” As the Criminal Court has held, the deletion of that specific language from the regulation does not evince “any intent to alter the use of the part 122 form as the simplified traffic information in New York City” (People v Gindi, 166 Misc 2d 672, 680 [Crim Ct, NY County 1995]).

The part 122 complaint form, as the City of New York’s simplified traffic information, is embodied in New York City Police Department (NYPD) Patrol Guide Procedure No. 209-11, which depicts the multipurpose form that is used for any misdemeanor or violation listed in the Vehicle and Traffic Law. Procedure No. 209-11 was promulgated pursuant to New York City Charter § 434 (b), which gives the Police Commissioner responsibility for the “execution of all laws and the rules and regulations of the [police] department.” The form in Procedure No. 209-11 is the form that was used in this case, and is the form that is routinely used as a simplified traffic information in parts of New York City to prosecute traffic misdemeanors in criminal court. Most importantly, form 209-11 substantially complies with the requirements specified in 15 NYCRR 122.2.

15 NYCRR 122.2 (a) provides that the “ticket packet shall be a multipage form of at least three parts, approximately 4V4 inches wide and 8 Vs inches high, including a half-inch stub for binding across the top.” Additionally, a “serial number, in a series, form and color approved by the commissioner, shall be printed at the top of each part” (§ 122.2 [b]), and “[p]art 1, the complaint, shall contain space for: (1) motorist’s name; (2) address; (3) date of birth; (4) sex; (5) license identification; (6) vehide description; (7) registration information; (8) violation description; (9) time and place of appearance; and (10) complainant’s name and affiliation” (§ 122.2 [c]). In this case, the accusatory instrument was a NYPD Patrol Guide form, Procedure No. 209-11, which was approximately four inches wide and approximately eight inches high. It had a serial number printed at the top, and it included space for all of the categories enumerated in 15 NYCRR 122.2 (c) which were all filled in with the requisite information. Defendant’s accusatory instrument therefore substantially complied with the requirements enumerated in section 122.2, and thus was a facially sufficient simplified traffic information.

ra

Although we hold that according to the technical specifications of the regulations, Procedure No. 209-11 substantially complies with 15 NYCRR 122.2, and is therefore sufficient as a simplified traffic information, a new more carefully drawn form would better service the city and the public. The present form is confusing and hardly “simplified.” It would seem clear that, at the very least, a simplified traffic information used in New York City should be titled “simplified traffic information” and should not include any space for factual allegations.

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

Pigott, J. (dissenting).

While the issue in this case, colored by the defendant’s rather checkered past of run-ins with the Vehicle and Traffic Law, may seem trivial or nettlesome, it points up a vexing problem in this area of the law. Was the defendant charged using a simplified traffic information, a misdemeanor complaint, or a misdemeanor information? The dilemma is not uncommon. Unfortunately, it seems that over the years importantly different documents have been conflated into one to the benefit of no one.

L

A simplified traffic information is

“a written accusation by a police officer, or other public servant authorized by law to issue same, filed with a local criminal court, which charges a person with the commission of one or more traffic infractions and/or misdemeanors relating to traffic, and which, being in a brief or simplified form prescribed by the commissioner of motor vehicles, designates the offense or offenses charged but contains no factual allegations of an evidentiary nature supporting such charge or charges” (CPL 100.10 [2] [a] [emphasis added]).

It is “designed to provide an uncomplicated form for handling the large volume of traffic infractions and petty offenses for which it is principally used. It need not provide on its face reasonable cause to believe defendant has committed the offense” (People v Nuccio, 78 NY2d 102, 104 [1991]; see also People v Key, 45 NY2d 111, 115-116 [1978]).

Because of its streamlined nature, a person charged by a simplified traffic information is entitled, upon request, to a supporting deposition. Under the statute,

“where a person is charged by a simplified information and is served with an appearance ticket as defined in [CPL] 150.10, such appearance ticket shall contain the following language: ‘NOTICE: YOU ARE ENTITLED TO RECEIVE A SUPPORTING DEPOSITION FURTHER EXPLAINING THE CHARGES PROVIDED YOU REQUEST SUCH SUPPORTING DEPOSITION WITHIN THIRTY DAYS FROM THE DATE YOU ARE DIRECTED TO APPEAR IN COURT AS SET FORTH ON THIS APPEARANCE TICKET. DO YOU REQUEST A SUPPORTING DEPOSITION? [ ]YES[ ] NO’ ” (CPL 100.25 [4]).

This is an important requirement because, in the vast majority of cases, motorists will mail in their pleas. Motorists are entitled to a supporting deposition if they need one, and must be advised of that right.

As the majority points out (see majority op at 52), the regulation intended to designate the form to be used for a simplified traffic information in New York City (where defendant was arrested) is 15 NYCRR 122.2. That regulation provides that a simplified traffic information shall have “at least three parts” (15 NYCRR 122.2 [a])—part I, the “complaint” (15 NYCRR 122.2 [c]), and parts II and III, the “appearance ticket and the summons” (15 NYCRR 122.2 [f])—and “[a] serial number . . . shall be printed at the top of each part” (15 NYCRR 122.2 [b]). The reverse side of the ticket “shall contain a plea form and instructions for answering said summons” (15 NYCRR 122.2 [e]). The simplified traffic information will contain a “violation description” (15 NYCRR 122.2 [c] [8]), but will not contain space for a detailed description of the offense or allegations of the facts underlying it (see 15 NYCRR 122.2 [c]), so as to be consistent with CPL 100.10 (2) (a).

The accusatory instrument in this case bears little resemblance to that template. Most crucially, the instrument contained no fewer than eight lines headed “Criminal Court Information (Describe Offense)” that the arresting officer may fill with a description of the facts underlying the offense. The form therefore clearly contravenes the dictates of CPL 100.10 (2) (a) (simplified traffic information “contains no factual allegations of an evidentiary nature supporting such charge or charges”).

Moreover, although the instrument included what purports to be an appearance ticket and summons, it does not include the statutorily required language concerning entitlement to receive a supporting deposition (see CPL 100.25 [4]). If it were a simplified traffic information, it would have to be dismissed as facially insufficient.

Additionally, although the instrument has “a serial number printed at the top” (majority op at 53) and at the foot of the reverse side, it does not have a serial number at the top of each part, in violation of 15 NYCRR 122.2 (b). In fact, it is not at all clear where each part begins and ends. And, while the reverse contains a plea form, it has no instructions for answering the summons, as required by 15 NYCRR 122.2 (e); the latter appear on the first page.

While I accept that a simplified traffic information must only be “substantially in the form prescribed by the commissioner” (CPL 100.25 [1] [emphasis added]; but see CPL 100.10 [2] [a] [no use of the word “substantially”]), the differences here are significant enough that, as a practical matter, this document is plainly something other than a simplified traffic information.

As the majority notes, the accusatory instrument in this case was on the form depicted in New York City Police Department Patrol Guide Procedure No. 209-11 (Form 209-11) (see majority op at 52). Indeed it is fair to say that the instrument is not “substantially in the form prescribed by the commissioner” (CPL 100.25 [1]); it is in a form prescribed by the Police Department. Form 209-11 is a versatile accusatory instrument, which the Patrol Guide describes as a “Criminal Court Summons” or a “Complaint/Information” and is to be used for “pedestrian offenses and traffic misdemeanors.” As examples of offenses for which it might be used, the Patrol Guide gives disorderly conduct (Penal Law § 240.20 [5]) and trespass (Penal Law § 140.05). If the offense is “returnable to Criminal Court,” the arresting officer is directed to complete a section of the form titled “Criminal Court Information.” The officer is instructed that this section “must include eyewitness (non-hearsay) allegations of fact describing acts of the defendant,” rather than merely “the specific language of the law.” In other words, Form 209-11 is designed to be used as a regular criminal court information (see CPL 100.10 [1]) that must include a “factual part” (CPL 100.15 [3]), containing “[n]on-hearsay allegations” that “establish, if true, every element of the offense charged and the defendant’s commission thereof’ (CPL 100.40 [1] [c]). There is no indication whatsoever that Form 209-11 was designed to be a simplified traffic information.

The majority analyzes People v Casey (95 NY2d 354 [2000]), pointing out that it does not stand for the proposition that the title of an accusatory instrument is dispositive (see majority op at 49-50). That much is correct. However, Casey clearly stands for a related proposition—an accusatory instrument that “was denominated, and purported to be, a misdemeanor information” is a misdemeanor information (Casey, 95 NY2d at 359 [emphasis added]). I disagree with the majority’s assertion that this holding in Casey “was a side-note, peripheral to the main holding” (majority op at 50). In fact, it was the basis of our conclusion that the accusatory instrument in that case “was in fact a local criminal court information” (95 NY2d at 359). If we had concluded otherwise, the rest of our opinion in Casey, which assumed that the instrument was an information, would have been superfluous.

Here, the accusatory instrument not only was titled “Complaint/Information,” rather than “Simplified Traffic Information,” but it also purported to be a regular information, insofar as it gave the arresting officer the opportunity to describe in detail the facts underlying the suspected offense or misdemeanor. Therefore, contrary to the majority’s assertion, Casey is controlling.

The accusatory instrument in this case was not a simplified traffic information with some unnecessary factual detail (see majority op at 51), but an insufficient misdemeanor information. The instrument did not allege evidentiary facts showing the basis for the arresting officer’s conclusion that the defendant knew, or had reason to know, that his license had been revoked, an element of the offense charged. This is despite the fact that there was ample space (eight lines) to do so, and the arresting officer otherwise described the evidentiary facts in detail. Therefore, the accusatory instrument was insufficient and should have been dismissed as jurisdictionally defective (see generally People v Dreyden, 15 NY3d 100, 102-103 [2010]; People v Jones, 9 NY3d 259, 262 [2007]).

The majority concedes that Form 209-11 is “confusing,” and suggests in conclusion that “a simplified traffic information used in New York City should be titled ‘simplified traffic information’ and should not include any space for factual allegations” (majority op at 53 [emphases added]). But CPL 100.10 (2) (a) compels us to say “must” rather than “should.” Nothing but confusion will be engendered by the majority’s suggesting a better form, instead of simply requiring it. Defendants will be left to navigate a fog of obscurity concerning whether they are being charged by means of a simplified traffic information, misdemeanor complaint, or misdemeanor information. Prosecutors and police officers, meanwhile, are encouraged to believe that accusatory instruments that in any way resemble a simplified traffic information need not comply with “reasonable cause” sufficiency standards. And courts are left to sort it out.

II

Although the arraignment court declined to rule on whether the accusatory instrument was a simplified traffic information, the Appellate Term affirmed the arraignment court’s judgment on the basis that the accusatory instrument was a simplified traffic information (31 Misc 3d 144[A], 2011 NY Slip Op 50932[U] [2011]). The Appellate Term therefore affirmed on a ground that the lower court had not decided adversely to the appealing party, which would at first blush appear to be a violation of People v LaFontaine (92 NY2d 470 [1998]). This would mean that we would have to reverse the Appellate Term’s order and remand to the Criminal Court. Although I believe that LaFontaine was wrongly decided (see People v Ingram, 18 NY3d 948, 949-951 [2012, Pigott, J., dissenting]), we are constrained by that decision, and we cannot be arbitrary in applying it. However, as the majority implicitly holds, LaFontaine is inapplicable here. This is because the alleged error would be a mode of proceedings error, and LaFontaine does not apply to these (see People v Concepcion, 17 NY3d 192, 199 [2011] [noting that there is no LaFontaine error when the issue decided by the intermediate appellate court is one that “does not need to be raised or preserved at trial in order to be reviewed on appeal”]).

For the reasons stated in part I of this opinion, I would reverse the order of the Appellate Term, and dismiss the accusatory instrument.

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

Order affirmed.

      . “A person is guilty of the offense of aggravated unlicensed operation of a motor vehicle in the third degree when such person operates a motor vehicle upon a public highway while knowing or having reason to know that such person’s license or privilege of operating such motor vehicle in this state or privilege of obtaining a license to operate such motor vehicle issued by the commissioner is suspended, revoked or otherwise withdrawn by the commissioner” (§ 511 [1] [a]).

      . CPL 100.10 (2) (a) provides:
      “A ‘simplified traffic information’ is a written accusation by a police officer, or other public servant authorized by law to issue same, filed with a local criminal court, which charges a person with the commission of one or more traffic infractions and/or misdemeanors relating to traffic, and which, being in a brief or simplified form prescribed by the commissioner of motor vehicles, designates the offense or offenses charged but contains no factual allegations of an evidentiary nature supporting such charge or charges. It serves as a basis for commencement of a criminal action for such traffic offenses, alternative to the charging thereof by a regular information, and, under circumstances prescribed in section 100.25, it may serve, either in whole or in part, as a basis for prosecution of such charges.”

      . A defendant who is charged by a simplified traffic information is entitled, upon request, to the filing and service of a supporting deposition; or, at arraignment after arrest (as opposed to a Desk Appearance Ticket) the court must inform defendant of his right to have a supporting deposition filed unless defendant waives the reading of that right. Defendant here did not request a supporting deposition and his attorney waived the reading of the right to have one filed.

      . Vehicle and Traffic Law § 207 (4) states, in relevant part, that “[t]he provisions of this section shall not apply to or supersede any ordinance, rule or regulation heretofore or hereafter made, adopted or prescribed pursuant to law in any city having a population of one million or over” for offenses occurring therein. Similarly, 15 NYCRR part 91 includes a provision which states that “[t]his Part shall not apply to tickets issued within any city having a population of one million or over for offenses occurring therein” (15 NYCRR 91.4 [a]).

      . Vehicle and Traffic Law § 226 authorizes the Commissioner of Motor Vehicles to prescribe the form of a summons and complaint in all cases involving traffic infractions, as specified in Vehicle and Traffic Law § 225 (1). Although defendant argues that this section cannot apply to his case, because aggravated unlicensed operation in the third degree is a misdemeanor, Vehicle and Traffic Law § 225 (1) applies to misdemeanors when a traffic infraction and a crime arise out of the same transaction or occurrence. In this case, defendant was stopped because he completed a left turn across three lanes of

        traffic, which is a traffic infraction. After he was stopped, it was determined that he had also violated Vehicle and Traffic Law § 511 (1), aggravated unlicensed operation in the third degree, which is a crime. Vehicle and Traffic Law § 225 (1) states:
      “Whenever a crime and a traffic infraction arise out of the same transaction or occurrence, a charge alleging both offenses may be made returnable before the court having jurisdiction over the crime. Nothing herein provided shall be construed to prevent a court, having jurisdiction over a criminal charge relating to traffic or a traffic infraction, from lawfully entering a judgment of conviction, whether or not based on a plea of guilty, for any offense classified as a traffic infraction.”

      . Defendant pointed out that Procedure No. 209-11, as listed in the Patrol Guide, states “CRIMINAL COURT[:] PEDESTRIAN OFFENSES AND TRAFFIC MISDEMEANORS (except unlicensed operator . . . ).” This note instructs police officers that for the crime of unlicensed operator, a Desk Appearance Ticket, which does not accompany an arrest but requires defendants to come to criminal court at a specified later date, should not be issued. Instead, a defendant charged with unlicensed operator should immediately be taken into custody—which is what happened here—rather than be allowed to reenter and operate his or her vehicle.

      . The majority states that, in the absence of such notice, the court must inform a defendant of his right to have a supporting deposition filed, unless the defendant waives the reading of that right (majority op at 48 n 3; see CPL 170.10 [4] [c]). The majority concludes that here defendant’s counsel waived the reading of defendant’s right to a supporting deposition. Counsel did if we accept the record evidence that she waived the reading of rights and charges for all her cases that evening. But this does not constitute a knowing waiver and, absent some notice on the accusatory instrument, serves as no notice at all.

      . The Patrol Guide states that Form 209-11 is not to be used for “unlicensed operator” offenses. The majority’s speculative explanation of this exception (majority op at 53 n 6) is impossible to evaluate because it is unsupported by citation or argument.

      . Since the defendant waived his right to be prosecuted by information, it must be evaluated as a misdemeanor complaint, as defendant argues.


author: Graffeo, J.

text:
    [980 NE2d 487, 956 NYS2d 439]
    Whitebox Concentrated Convertible Arbitrage Partners, L.P., et al., Appellants, v Superior Well Services, Inc., Respondent.
    Argued September 12, 2012;
    decided October 25, 2012

      POINTS OF COUNSEL

      Ross & Orenstein LLC, Minneapolis, Minnesota (John B. Orenstein of counsel), and Zeichner Ellman & Krause LLP, New York City (Yoav M. Griver, Michael E. Sims and Tracee E. Davis of counsel), for appellants.
    Because the holders’ reading of the certificate of designations is at least as reasonable as Superior Well Services, Inc.’s, the Appellate Division erred in reversing the denial of Superior’s motion to dismiss. (Leon v Martinez, 84 NY2d 83; ABN AMRO Bank, N.V. v MBIA Inc., 17 NY3d 208; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314; Greenfield v Philles Records, 98 NY2d 562; Riverside S. Planning Corp. v CRP/Extell Riverside, L.P., 60 AD3d 61, 13 NY3d 398; White v Continental Cas. Co., 9 NY3d 264; State of New York v Home Indem. Co., 66 NY2d 669; Cerand v Burstein, 72 AD3d 1262; JFE Steel Corp. v ICI Ams., Inc., 797 F Supp 2d 452; Scaringi v Broome Realty Corp., 154 Misc 2d 786.)

      Simpson Thacher & Bartlett LLP, New York City (Bruce D. Angiolillo, Jonathan K. Youngwood and Summer Craig of counsel), for respondent.
    I. The Appellate Division correctly held that under the unambiguous contractual language at issue, the transaction did not trigger a fundamental change. (Riverside S. Planning Corp. v CRP/Extell Riverside, L.P., 60 AD3d 61; Slamow v Del Col, 79 NY2d 1016.) II. The Appellate Division correctly held that Nabors Industries Ltd. acquired Superior Well Services, Inc. through a single integrated transaction. (805 Third Ave. Co. v M.W. Realty Assoc., 58 NY2d 447; Merrit v Libby, McNeill & Libby, 533 F2d 1310.)
   OPINION OF THE COURT

Graffeo, J.

In this case we are asked to determine whether a corporation is entitled to the dismissal of a complaint that seeks to compel the repurchase of preferred stock. Considering the allegations and documentary proof in the shareholders’ favor, we conclude that dismissal is not warranted and that the complaint should be reinstated.

I

Plaintiffs own approximately 54,000 shares of a series of preferred stock issued by defendant Superior Well Services, Inc. Unlike Superior’s common stock, the preferred stock carries no voting rights, but it does confer some special benefits. Among them is a requirement that Superior repurchase the preferred stock at a price of $1,000 per share (plus accrued dividends) in the event that a “fundamental change” occurs.

The document that governs the rights and obligations of the parties sets forth five scenarios that qualify as a fundamental change, two of which are relevant in this case:

“(i) a ‘person’ or ‘group’ within the meaning of Section 13(d)(3) of the [Securities and] Exchange Act becomes the direct or indirect ‘beneficial owner,’ as defined in Rule 13d-3 under the Exchange Act, of shares of the Common Stock or other capital stock of the Corporation [i.e., Superior] representing more than 50% of the voting power of the Common Stock . . . ; provided that this clause . . . shall not apply to a transaction covered in clause (iii) below, including any exception thereto; or . . .
“(iii) the Corporation merges or consolidates with or into any other Person, or any Person merges with the Corporation, other than a merger, consolidation or other transaction in which . . . the Corporation is the surviving entity.”

Stated more plainly, subdivision (i) provides that a fundamental change is established if a designated entity controls more than half of the voting power of Superior’s common stock, unless that occurs via a transaction listed in subdivision (iii). Subdivision (iii), in turn, directs that a merger or consolidation of Superior with or into another company (or vice versa) constitutes a fundamental change, but not if Superior is “the surviving entity” following the merger, consolidation or transaction. Thus, in this case, the preferred stockholders would be entitled to $1,000 per share if an entity acquired more than 50% of Superior’s common stock, unless such acquisition was the result of a merger with another company and Superior remained the surviving entity after the transaction.

In 2010, Superior entered into an “agreement and plan of merger” with Nabors Industries Ltd. and its wholly-owned subsidiary, Diamond Acquisition Corp., which was created for the sole purpose of facilitating the acquisition of Superior. According to the agreement, Nabors would use Diamond to make a tender offer of approximately $22 for each share of Superior’s common stock. Once Diamond acquired a majority of the common stock, it would merge with Superior and then cease to exist, thereby making Nabors the majority shareholder of Superior.

When plaintiffs became aware of the agreement, they invoked the fundamental change provision and demanded that Superior repurchase their preferred stock at $1,000 per share. Superior refused to do so, claiming that the arrangement did not qualify as a fundamental change under the terms of the governing agreement. The plan was then executed: Diamond acquired over 92% of Superior’s common stock; it merged into Superior; Superior liquidated the remaining common stock; Diamond went out of existence; and Nabors became the sole owner of Superior.

Plaintiffs commenced this action seeking a declaration that Superior must repurchase their shares of preferred stock because a fundamental change took place. Based on the language of the fundamental change provision, Superior moved to dismiss under CPLR 3211 claiming that a repurchase was not required since Superior survived the merger. Plaintiffs responded that, at the very least, it was ambiguous whether the initial tender offer was covered under subdivision (i) of the fundamental change provision or whether subdivision (iii) was applicable since not one, but two, companies—Superior and Nabors—survived the merger.

Supreme Court denied Superior’s motion to dismiss, concluding that at the pleading stage of the case, the fundamental change provision was subject to different interpretations. The Appellate Division reversed and dismissed the complaint, viewing Diamond’s acquisition of the common stock and Superior’s subsequent merger with Diamond as a single transaction from which Superior emerged as the surviving entity, triggering the exception in subdivision (iii) of the fundamental change provision (86 AD3d 431 [1st Dept 2011]). We granted leave to appeal (17 NY3d 716 [2011]) and now reverse.

II

Plaintiffs maintain that the Appellate Division should not have dismissed the complaint because there is a reasonable view that the transaction at issue was a tender offer covered by-subdivision (i) of the fundamental change clause, not a merger or consolidation within the meaning of subdivision (iii); that the various steps leading to the merger were separate transactions rather than a single, integrated plan; and that, even if subdivision (iii) applies, Superior was not the sole “surviving entity” because Nabors continued to exist. Superior contends that the language of the fundamental change provision unequivocally establishes that the company is not obligated to repurchase the preferred shares and, hence, it is entitled to dismissal of the complaint.

When a court rules on a CPLR 3211 motion to dismiss, it “must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory” (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]). The motion may be granted if “documentary evidence utterly refutes [the] plaintiffs factual allegations” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]), thereby “conclusively establishing a defense as a matter of law” (id., citing Leon v Martinez, 84 NY2d 83, 88 [1994]). One example of such proof is an unambiguous contract that indisputably undermines the asserted causes of action (see generally Greenfield v Philles Records, 98 NY2d 562, 569-570 [2002]).

In our view, Superior has failed to establish entitlement to dismissal of the complaint. Considering the language of the preferred stock agreement and construing the allegations in the light most favorable to plaintiffs, there is a reasonable basis to believe that plaintiffs may be able to establish that the fundamental change clause was activated. With regard to subdivision (i) of the provision, it is undisputed that Diamond acquired more than 50% of Superior’s common stock. Standing alone, this would certainly constitute a fundamental change unless the exception described in subdivision (iii) applies. Because the use of the term “transaction” is not defined in the preferred stock agreement, the precise meaning that the parties intended to ascribe to that terminology cannot be clearly discerned at this early point in the litigation. It could reasonably refer to (1) only the tender offer that Diamond used to secure majority control of Superior; (2) the offer and the merger of Diamond into Superior; or (3) the offer, the merger and the dissolution of Diamond. The distinction is meaningful because if the offer itself is viewed as the relevant transaction, it would not be deemed a merger or consolidation subject to subdivision (iii), meaning that a fundamental change occurred under subdivision (i) and Superior must repurchase plaintiffs’ preferred stock at the agreed contract price.

Even if the entire series of steps that culminated in Nabors ownership of Superior can be considered a single, integrated transaction, plaintiffs reasonably contend that a fundamental change occurred under subdivision (iii) since Superior may not have been “the surviving entity” of the merger. Use of the word “the” tends to suggest that Superior must be the only corporate entity that remains after a merger, yet Nabors survived as well. Superior did not establish, as a matter of law, that only two of the steps in the merger plan (the tender offer and the merger of Diamond into Superior) constituted the relevant “transaction” for purposes of “the surviving entity” language in subdivision (iii). Superior’s theory is plausible, but so is plaintiffs’ assertion that Nabors should not be excluded from the “transaction” analysis. Consequently, the Appellate Division erred when it adopted Superior’s view in the context of a CPLR 3211 motion to dismiss.

We therefore conclude that, under the facts presented, there is ambiguity in the interpretation and effect of the preferred stock agreement and, as such, Superior is not entitled to dismissal of plaintiffs’ complaint.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the complaint reinstated.

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

Order reversed, etc.