author: Fahey, J.

text:
    [71 NE3d 537, 49 NYS3d 46]
    In the Matter of Mariah Corrigan et al., Appellants, v New York State Office of Children and Family Services et al., Respondents.
    Argued January 5, 2017;
    decided February 9, 2017

      POINTS OF COUNSEL

      Law Office of Peter D. Hoffman, P.C., Katonah (Peter D. Hoffman, Nikki D. Woods and Yifei He of counsel), for appellants.

      Eric T. Schneiderman, Attorney General, New York City (Valerie Figueredo, Barbara D. Underwood and Claude S. Platton of counsel), for respondents.
   OPINION OF THE COURT

Fahey, J.

Here we address whether a statutory procedure allowing for early expungement of reports relating to alleged child abuse applies when the parents are not formally investigated but are instead assigned to the Family Assessment Response track pursuant to Social Services Law § 427-a.

L

In February 2013, the Statewide Central Register of Child Abuse and Maltreatment maintained by the State Office of Children and Family Services (OCFS) received a telephone call alleging educational neglect by petitioners. OCFS referred the report to the Westchester County Department of Social Services, Office of Child Protective Services (CPS), pursuant to Social Services Law § 422 (2) (a) (providing that allegations in a telephone call to the Statewide Central Register that could reasonably constitute a report of child abuse or maltreatment must be transmitted by OCFS “to the appropriate local child protective service for investigation”). Based on an initial safety assessment (see Social Services Law § 427-a [4] [c]), CPS decided that the case was eligible to proceed under the Family Assessment Response track (FAR track) pursuant to Social Services Law § 427-a. Under this statutory framework, a social services district may establish a program designed to “meet the needs of [families] without engaging in a traditional child protective services investigation” (Social Services Law § 427-a [4] [d] [i]). The caseworker submitted the case for closure in the month after the report was received, without recommending any services.

Petitioners, seeking to have their names formally cleared, wrote to OCFS to request expungement of the FAR records and report. The Director of the Statewide Central Register, believing petitioners to be seeking administrative review, replied that OCFS could not comply with their request because petitioners had been placed on the FAR track, rather than the standard investigative track in which parents may challenge what is known as an “indicated report,” i.e. a finding that credible evidence of alleged abuse or maltreatment exists (see Social Services Law §§ 412 [7]; 422 [8]). Petitioners then retained counsel, to whom an OCFS attorney explained that “[t]he statute does not afford the subject of a FAR report the ability to seek expungement of the report,” while emphasizing that the record of a FAR track case is sealed.

Petitioners commenced this CPLR article 78 proceeding against OCFS and the Director of its Central Register, challenging, as “arbitrary and capricious” and “an abuse of discretion,” OCFS’s determination to deny them the opportunity to seek early expungement of the educational neglect report. Petitioners noted that a process for seeking early expungement of a report is available to parents who have been investigated by OCFS (see Social Services Law § 422 [5] [c]), and contended that the statute governing the FAR track must be interpreted to include the same. The petition contained no challenge to the FAR statute on constitutional grounds. Respondents moved to dismiss, and Supreme Court granted the motion, on the ground that no statutory authority exists for early expungement of a FAR report.

The Appellate Division affirmed (129 AD3d 1073 [2d Dept 2015]), reasoning that the legislature’s failure to include in Social Services Law § 427-a any provision for early expungement, “when it had, prior to the enactment of Social Services Law § 427-a, included such a provision in a statute within the same statutory scheme, should be construed as indicating that the exclusion was intentional” (id. at 1075-1076 [internal quotation marks omitted]). The Appellate Division added that in its view the legislature would not have deemed it appropriate to include a process for requesting early expungement of a FAR track report because “the stated purpose in enacting the differential response approach implemented by section 427-a was to avoid any consideration of the truth or falsity of the allegations of abuse or maltreatment in appropriate cases” (id. at 1076).

We granted petitioners leave to appeal to this Court and now affirm.

II

The FAR track created by Social Services Law § 427-a is “an alternative means of addressing certain matters otherwise investigated as allegations of child abuse or maltreatment” (Social Services Law § 427-a [1]). The legislature, which introduced the FAR process in 2007 (see L 2007, ch 452), believed that where there are no immediate or high-risk safety concerns the needs of families can often be better served by a “non-investigative, non-adversarial, service-oriented approach” (Senate Introducer’s Mem in Support, Bill Jacket, L 2007, ch 452 at 13, 2007 NY Legis Ann at 284), and that by

“[r]emoving the stigma often associated with being reported to [the Statewide Central Register] and creating a less hostile and suspicious environment where the involvement of community resources rather than government agencies is encouraged, families will be more likely to cooperate with case workers and accept offers of support services, ultimately resulting in safer children at home” (Letter from Assembly Member Amy R. Paulin to David Nocenti, Counsel to the Governor, July 3, 2007 at 3, Bill Jacket, L 2007, ch 452 at 9).

Under the FAR approach, the local child protective service avoids “a formal determination that abuse or maltreatment has occurred” and instead employs a “family-centered approach” to “strengthen families . . . without jeopardizing the safety of children” (Senate Introducer’s Mem in Support, Bill Jacket, L 2007, ch 452 at 12, 13, 2007 NY Legis Ann at 283, 284; see also 18 NYCRR 432.1 [ad]; 432.13 [a] [1]). Introduced as a pilot program, the FAR track was made permanent in 2011 (see L 2011, ch 45).

This appeal centers on disparities between the FAR track and the preexisting investigative track governing allegations of child abuse or maltreatment, and the significance of those differences. Social Services Law § 422 is the statute governing the investigative track. It requires that records of reports to the Statewide Central Register be preserved by OCFS for “ten years after the receipt of the report” if the report is determined to be unfounded (Social Services Law § 422 [5] [b]; see L 1996, ch 12) and for “ten years after the eighteenth birthday of the youngest child named in the report” if the report is determined to be “indicated” (Social Services Law § 422 [6]). At the same time, the statute expressly provides that after the 10 years have elapsed the reports “shall be expunged” (Social 'Services Law § 422 [5] [b]; [6]).

Social Services Law § 422 further established, by amendment adopted in 2000, a means whereby parents could seek early expungement of sealed unfounded reports, if either

“(i) the source of the report was convicted of a violation of [Penal Law § 240.55 (3) (falsely reporting an incident in the second degree)] in regard to such report; or (ii) the subject of the report presents clear and convincing evidence that affirmatively refutes the allegation of abuse or maltreatment; provided however, that the absence of credible evidence supporting the allegation of abuse or maltreatment shall not be the sole basis to expunge the report” (Social Services Law § 422 [5] [c]; see L 2000, ch 555).

The FAR track statute, Social Services Law § 427-a, mirrors Social Services Law § 422 in some respects, but differs in others. Section 427-a provides that when a report is included in the FAR track, the Statewide Central Register’s “records . . . of such report” are “legally sealed” and “maintained at the [S]tatewide [C]entral [R]egister ... for ten years after the report was made” (Social Services Law § 427-a [4] [c] [i]; see also § 427-a [5] [c]). The requirement that FAR track records be preserved by OCFS for 10 years resembles the similar requirement in the investigative track. The purpose is “to protect the safety and welfare of a child whose family received FAR services and who subsequently becomes the subject of a report of suspected child abuse or maltreatment” (Letter from Assembly Member Amy R. Paulin to Mylan Denerstein, Counsel to Governor, June 24, 2011 at 2, Bill Jacket, L 2011, ch 377 at 7).

On the other hand, Social Services Law § 427-a includes no provision corresponding to the mechanism for parents to seek early expungement of sealed unfounded reports available in the traditional investigative track. Indeed, in Social Services Law § 427-a, there is no reference to expungement at all. The obligation to maintain the sealed record of a report assigned to the FAR track exists for no more than 10 years, but no statutory duty to expunge is expressly stated.

Petitioners contend that the right to seek early expungement may be inferred from the silence of Social Services Law § 427-a on this topic. We disagree. Principles of statutory construction teach that “the failure of the Legislature to include a substantive, significant prescription in a statute is a strong indication that its exclusion was intended” (People v Finnegan, 85 NY2d 53, 58 [1995], rearg denied 85 NY2d 968 [1995], cert denied 516 US 919 [1995]; see also e.g. Pajak v Pajak, 56 NY2d 394, 397 [1982]). Moreover, this is not a case in which the two statutes that petitioners seek to interpret in identical fashion “relate to the same subject matter, contain identical language and were adopted together” (Matter of Albany Law School v New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 121 [2012]). Rather, the FAR track was created as a new and entirely separate means of addressing certain allegations of child abuse in a program geared toward the provision of social services, rather than an investigation assessing blame. In other words, the subject matter of the FAR track cannot be deemed identical to that of a traditional child abuse investigation.

In any event, while we have said that “[c]ourts must harmonize the various provisions of related statutes and construe them in a way that renders them internally compatible” (Matter of Dutchess County Dept. of Social Servs. v Day, 96 NY2d 149, 153 [2001] [internal quotation marks and brackets omitted]), there is no conflict between the related statutes here. Petitioners allege inequity, not inconsistency. As they see it, “a person not suspected of child abuse” and placed on the FAR track has fewer remedies than one “who was suspected of child abuse, which suspicion was later determined unfounded” upon investigation. The proper resolution of this criticism, however, requires the weighing of policy concerns, including the State’s need to retain records concerning a parent accused of child abuse or maltreatment and the desire of a parent for the elimination of unjust stigma. This is a task for the legislature, not the courts.

Petitioners argue for the first time on appeal that Social Services Law § 427-a is unconstitutional as applied, because the absence of an early expungement provision is not rationally related to a legitimate government objective. The constitutional claim is not properly before us. “Judicial review of administrative determinations pursuant to CPLR article 78 is limited to questions of law,” and “[u]npreserved issues are not issues of law” (Matter of Khan v New York State Dept. of Health, 96 NY2d 879, 880 [2001]).

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

Judges Rivera, Abdus-Salaam, Stein and Garcia concur; Chief Judge DiFiore and Judge Wilson taking no part.

Order affirmed, with costs.

       Reports assigned to the FAR track and the records created thereunder are confidential and accessible only by
      “(i) staff of [OCFS] and persons designated by [OCFS];
      “(ii) the social services district responsible for the [FAR] track case;
      “(iii) community-based agencies that have contracts with the social services district to carry out activities for the district under the [FAR] track;

        “(iv) providers of services under the [FAR] track;
      “(v) any social services district investigating a subsequent report of abuse or maltreatment involving the same subject or the same child or children named in the report;
      “(vi) a court, but only while the family is receiving services provided under the [FAR] track and only pursuant to a court order or judicial subpoena, issued after notice and an opportunity for the subject of the report and all parties to the present proceeding to be heard, based on a judicial finding that such reports, records, and any information concerning such reports and records, are necessary for the determination of an issue before the court. . . . ; and
      “(vii) the subject of the report included in the records of the [FAR] track” (Social Services Law § 427-a [5] [d]).


source: Caselaw Access Project

author: Chief Judge DiFiore.

license: Public Domain

text:
    [71 NE3d 541, 49 NYS3d 50]
    The People of the State of New York, Respondent, v William Flanagan, Appellant.
    Argued January 12, 2017;
    decided February 9, 2017

      POINTS OF COUNSEL

      Barket, Marion, Epstein & Kearon, LLP, Garden City {Donna Aldea of counsel), for appellant.

      Madeline Singas, District Attorney, Mineóla (Yael V. Levy and Tammy J. Smiley of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge DiFiore.

Defendant was convicted, upon a jury verdict, of conspiracy in the sixth degree (Penal Law § 105.00) and two counts of official misconduct (Penal Law § 195.00 [1], [2]). On appeal, defendant primarily challenges his convictions on the bases of the legal sufficiency of the evidence and the fairness of the trial. We conclude that these claims lack merit and affirm the order of the Appellate Division in all respects.

L

On May 19, 2009, shortly before Memorial Day weekend, school authorities reported the larceny of over $3,000 of electronic equipment from a high school (the High School) to the Nassau County Police Department (NCPD). That same day, an NCPD patrol officer from the Seventh Precinct responded to the High School’s complaint and interviewed the principal. This was one of a string of equipment thefts at the High School that had occurred throughout the 2008-2009 school year, all of which had been reported to the NCPD. As to this most recent theft, the principal told the officer that the school’s surveillance video had captured a student, Z.P., on the High School premises on May 18 after school hours and without permission, and that witnesses had seen Z.P. trying to gain entry to the auditorium where the stolen equipment had been locked inside.

The officer recorded the details of the principal’s complaint in a supporting deposition using form PDCN32B. The supporting deposition, which was sworn to by the principal and signed by both the principal and the officer, plainly stated that the victim wanted the perpetrator to be arrested. On the back of the supporting deposition, the officer wrote down NCPD case report numbers associated with the prior thefts the High School had already reported. In accordance with NCPD protocol, the officer called in her case report so that the information could be entered into the NCPD computer system and then turned in the supporting deposition at the Seventh Precinct. As the suspect was not present at the scene, the patrol officer could not make an arrest and the felony investigation, upon review, was assigned to the detectives in the Seventh Precinct detective squad (the Squad) for the purpose of conducting further “investigation and [to] move towards making an arrest.”

In the meantime, the assistant principal informed both Z.P. and his father, Gary Parker, that Z.P. was being suspended for five days for stealing the equipment and that the school had reported the larceny to the police. Gary Parker was a longtime benefactor of the NCPD who regularly entertained high-ranking members of the department. Due to Parker’s connections, Z.P. had obtained an internship with the NCPD that spring and, thus, was a department employee at the time the crime was reported.

A detective, who was “catching cases” on May 19 when the Squad received the police report of the larceny through the department’s computer system, then created a case jacket, assigned a detective division number to the case, and assigned himself the case. That same day, however, a lieutenant, who was the commanding officer of the Squad, learned that Z.P. was an NCPD employee and that his father was closely connected with the “upper echelon” in the department, meaning “chiefs and the commissioners.” The lieutenant placed a call to Internal Affairs, which directly reported to the Police Commissioner and handled all cases involving department employees, to refer the case. Hours later, she received a call from Deputy Chief of Patrol John Hunter, who did not work in Internal Affairs but nonetheless outranked her, informing her that the case would stay with the Squad. Her response was “Yes, sir.” Concerned about the attention this case already appeared to be receiving, the lieutenant reassigned the case to Detective Bruce Coffey who had an established relationship with school authorities and who the lieutenant believed was better at crossing his t’s and dotting his i’s.

At the behest of the detective sergeant who usually supervised Coffey, the lieutenant allowed Detective Sergeant Alan Sharpe to serve as Coffey’s supervisor on this case. Sharpe, who was second-in-command at the Squad, then instructed Coffey to meet with the principal. Sharpe replaced the lieutenant and became the Squad’s commanding officer days later on May 27. Sharpe explained to Coffey that “higher-ups” at the NCPD had been calling about the case and these “higher-ups” did not want an arrest. Sharpe directed Coffey to obtain a statement of withdrawal from the victim, which would serve to drop the complaint and close the case. Coffey followed the order of his supervisor. On May 21, Coffey went to the High School where he met with the principal and spoke with two other school employees who were witnesses to the crime. The principal was “adamant” about having Z.P. arrested and Coffey, conflicted as to his supervisor’s directives to dispose of the case and the victim’s wishes to proceed with it, did not present the principal with the withdrawal form. Afterwards, Coffey communicated the principal’s position to Sharpe and told Sharpe he was unable to obtain the withdrawal.

In advance of the upcoming Memorial Day weekend, Gary Parker also met with the principal. Parker informed her that Z.P. had confessed to the theft, but implored her to speak to the school district superintendent about not having Z.P. arrested. The principal emailed Detective Coffey asking the police to place the investigation on hold until she was able to confer with the superintendent. Parker also called a friend of Z.P.’s, who had received stolen property from his son, and directed him to deliver this property to the police. The friend, along with another individual who had received some of the stolen property from Z.P., brought the property to the Fifth Precinct and told the police that it was stolen. The police obtained statements from these witnesses. Sharpe sent the detective originally assigned to the case to retrieve this property from the Fifth Precinct. The detective did so and placed it in the Squad’s storage locker without logging it in the Squad’s evidence log, contrary to normal protocol. Parker also sought the assistance of his friend, Deputy Chief of Patrol Hunter. On that Saturday, Hunter asked a police officer, who had nothing to do with the larceny investigation, but was the principal’s nephew, to speak with his aunt about the case. The officer, after deliberation, informed Hunter that he would not call his aunt.

On the Tuesday after Memorial Day, the principal, the superintendent, and the attorney for the school district made the decision that, in view of the fact that in excess of $11,000 of equipment had been stolen from the school, the High School would press charges and have Z.P. arrested. Coffey, aware of the victim’s desire to proceed with the case, nonetheless complied with the order of his supervisor, Detective Sergeant Sharpe, and declined to investigate the matter any further or effectuate an arrest. To this end, Coffey never preserved, obtained, or viewed the surveillance video in the High School’s possession. He also never invoiced, vouchered, or photographed the stolen property in the Squad’s possession, as was required by department protocol, and left this evidence of a crime in the Squad’s locker instead of securing the evidence in the NCPD Property Bureau. Although Coffey conducted interviews with two school employees on May 21, he did not prepare any written statements of these witnesses or even take notes during the interviews. Coffey’s omissions and refusal to act were done with the aim of preventing Z.P.’s arrest. Coffey understood this to be the goal of his supervisor, Sharpe, who made it abundantly clear to Coffey that there would be no arrest in this case and that Coffey was to obtain a withdrawal of prosecution.

On June 16, Sharpe and Hunter made arrangements for the principal and another school employee to meet with a detective who was not involved in Z.P.’s case in order to obtain the stolen property in the Squad’s possession. This detective, a 15-year veteran, after speaking with Sharpe, presented the principal with the evidence he found unvouchered in the Squad’s locker and asked her to sign two documents. The first was a document acknowledging receipt of the property. The second was a withdrawal of prosecution form. Upon reviewing the documents, the principal told the detective that she would not sign the withdrawal and that she did not have authority to drop the charges. Upon learning that the High School did not want to drop the case, the detective told the principal that he would need to bring the property back to the precinct and she would have to follow up with the detective assigned to the case. Then, the detective stepped out of the room to call Sharpe, who had directed him to obtain signatures on both forms, and informed Sharpe that the High School had refused to abandon their complaint. Sharpe ordered the detective to bring the property back to the precinct. The detective complied.

Two days later, Gary Parker encountered defendant William Flanagan at the U.S. Open. Parker and defendant knew each other well and had socialized on many occasions in the past. At this time, defendant was the detective sergeant in charge of Asset Forfeiture. On or about July 14, however, defendant was appointed by the Police Commissioner to Second Deputy Commissioner for Special Projects, one of the highest ranks in the NCPD. Parker explained the situation with his son and enlisted defendant’s help in achieving a favorable resolution, which Parker admitted was no prosecution or arrest of his son. Defendant told Parker that he would look into the matter and see what he could do.

A few days later, Parker followed up with defendant by email. Parker asked if defendant needed any further information from him, to which defendant responded “I have all I need” and noted that he had “already put a couple of pieces in motion.” Phone records revealed that defendant then immediately called the Seventh Precinct and had a 10-minute phone conversation with someone there. The following Monday, defendant received an email from Sharpe stating that Sharpe was still waiting for a call back from the High School regarding the return of property the two of them had discussed the previous week. Defendant responded, “[t]hanks, talk to you soon.”

Over the course of the summer, Coffey was pressured by Sharpe to return the stolen property and obtain a withdrawal of prosecution from the High School. Failed attempts to arrange the return of the stolen property were reflected in a series of emails. Parker emailed defendant throughout the summer seeking updates and expressing concern with how the case would be resolved. Defendant responded to one such email with “I have no doubt about the resolution.” Additionally, the principal expressed frustration with how the department was handling the case. In one email she remarked, “I assume that [Z.P.] has not been arrested, since it is clear that the police want to bury this case.”

At the end of the summer, Coffey made arrangements to meet with the principal and another school employee on September 1 to return the stolen property. At this meeting, the principal was again presented with the property and the same two documents brought by another detective to the June 16 meeting, the property receipt and withdrawal of prosecution form. Both the principal and the other employee signed the receipt, but the principal expressed outrage at being presented with the withdrawal and told Coffey that the High School was not dropping the charges. Coffey left the evidence with the principal and returned to the precinct with the unsigned withdrawal.

About one week later, Coffey received an email from Sharpe which read, “I NOTICED THE LAPTOPS AND PROJECTOR GONE FROM PROPERTY LOCKER. WERE THEY RETURNED TO THE SCHOOL DISTRICT DUE TO THEM ELECTING NPA?” Coffey later informed Sharpe that the property had been returned, but that the principal had refused to sign the withdrawal. Despite Sharpe’s directive to Coffey to keep trying to get the principal to sign the withdrawal, Coffey did not comply and had no further interaction with anyone at the High School after the September 1 return.

Around this same time, Parker emailed defendant to inquire about whether the property had been returned. Defendant indicated that it had. Parker responded with “THANK YOU!!!!!!” to which defendant replied, “[d]e nada family.” Within days of this exchange, Parker’s wife sent defendant gift cards. In response to Parker’s email inquiry about defendant’s receipt of the gift cards, defendant said they were “[o]ver the top.”

Later in the fall, both defendant and Coffey were at a police retirement party. While Coffey was sitting at a table with other members of the Squad, defendant approached Coffey, shook his hand, and said, “[t]hank you.” Coffey responded, “[tjhank you. You’re welcome.” Defendant did not shake hands with anyone else at the table and Coffey understood that defendant had thanked him for his involvement with Z.P.’s case.

One year later, in September 2010, Coffey was preparing to retire. Aside from his initial meeting at the High School on May 21, 2009, Coffey had purposefully done no investigation on this case, had not followed up on any leads, and had not arrested Z.P. Nonetheless, Coffey had left the case marked open in the department’s computer system. Prior to his departure from the department, Coffey prepared a false report to close out the case. Specifically, Coffey falsely represented that the principal did not want to move forward with the case and was no longer in need of police assistance. Sharpe, as Coffey’s case supervisor, had to review and sign off on this statement. Sharpe instructed Coffey to indicate that the principal “[did] not want to see [Z.P.] arrested.” Coffey complied with this directive, though he knew that this statement was false. On September 19, 2010, the case was officially closed.

IL

In March 2011, a newspaper published an article about the thefts at the High School, which resulted in the Nassau County District Attorney launching an investigation into the handling of Z.P.’s case. Within days of the article, Gary Parker sent an email to defendant explaining that he was going to distance himself from the NCPD for a time and stating that he hoped defendant would “understand” and “support” his decision to do so. Defendant conveyed his support and replied, “[l]uv you dude. :) Remember what I told you, ‘you’re family’. We take care of our own.” Parker responded, “[t]hanks. A little separation . . . .”

As relevant to this appeal, after a 7V2-month grand jury proceeding, defendant was indicted, along with Deputy Chief of Patrol Hunter and Detective Sergeant Sharpe, for conspiracy in the sixth degree and two counts of official misconduct. As to the crime of conspiracy, the indictment alleged that on or about and between May 19, 2009 and September 19 , 2010 these individuals,

“with the intent to engage in conduct that constituted the crime of Official Misconduct, agreed with one or more persons, including the father of a target of a felony investigation . . . , to return recovered stolen property to a cooperative complainant' in an open felony investigation in an effort to justify and ensure the non-arrest of the target whose arrest would have otherwise been warranted, in order to benefit the target’s father, a financial and personal benefactor of members of the Nassau County Police Department.”

As to official misconduct, the indictment alleged that, on or about and between June 18, 2009 and September 10, 2009, defendant committed official misconduct under a theory of malfeasance by ordering subordinates to return stolen property that had been recovered by the NCPD in an open criminal investigation in an effort to justify the non-arrest of Z.P., whose arrest would have otherwise been warranted. The indictment further alleged that on or about and between June 18, 2009 and September 11, 2009 defendant committed official misconduct under a theory of nonfeasance by ensuring that Z.P. would not be arrested despite the fact that there was probable cause to arrest him and a willing complainant, in violation of defendant’s inherent duties as an officer as well as of NCPD policy.

Prior to trial, defendant, pursuant to CPL 210.35 (5), moved to dismiss the indictment on the ground that the integrity of the grand jury proceedings had been impaired. The trial court denied this motion, concluding that the exceptional remedy of dismissal was not warranted. Defendant then proceeded to trial. Defendant’s indicted coconspirators, Hunter and Sharpe, who pleaded guilty, did not testify at defendant’s trial. The un-indicted coconspirators—Coffey, who had entered into a cooperation agreement with the District Attorney, and Gary Parker—both testified. Defendant did not testify. Defendant was convicted of the conspiracy count as well as both official misconduct counts.

Prior to sentencing, defendant moved to set aside the verdict on the grounds that the People had not presented legally sufficient evidence and that defendant was denied his right to a fair trial. The trial court denied this motion, concluding that, viewing the evidence in the light most favorable to the People, legally sufficient evidence was presented and that the record as a whole did not establish that defendant was denied a fair trial. Defendant was sentenced to a 60-day prison term for conspiracy to be served concurrently with a five-month term for the two official misconduct convictions (three months of which could be satisfied with community service). He was also required to pay a $1,000 fine. The execution of judgment was stayed pending the resolution of defendant’s appeal.

On appeal, the Appellate Division affirmed defendant’s convictions (132 AD3d 693 [2d Dept 2015]). The Appellate Division held that the evidence was legally sufficient to support the convictions. The Court further held that defendant’s denial of a fair trial claims were either unpreserved or abandoned, or lacked merit. Moreover, the Appellate Division concluded that any error in this regard was harmless. Defendant’s claim that the grand jury process was defective was found to be without merit.

A Judge of this Court granted defendant leave to appeal (26 NY3d 1039 [2015]). We now affirm.

I—1 1—1 !—Í

“The standard for reviewing the legal sufficiency of evidence in a criminal case is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (People v Contes, 60 NY2d 620, 621 [1983] [internal quotation marks and citation omitted]). Here, when viewed in this light, the evidence is sufficient to establish the elements of the crimes of official misconduct under both theories as well as of conspiracy in the sixth degree.

Official misconduct is codified in Penal Law § 195.00. Subdivision (1) of the statute pertains to official misconduct by way of malfeasance and subdivision (2) pertains to nonfeasance. In enacting the statute, the legislature “replaced more than 30 prior crimes, all of which dealt with specific malfeasance or nonfeasance in the accomplishment of official duties” (People v Feerick, 93 NY2d 433, 445 [1999]).

Penal Law § 195.00 contains two mens rea elements, requiring both an intent to obtain a benefit or deprive another of a benefit and knowingly acting or refraining from acting (see Feerick, 93 NY2d at 446). The double mens rea prevents the criminalization of official actions, or lack thereof, due to “mere errors of judgment” (id. at 448). This exacting standard is in keeping with the legislature’s goal of criminalizing “flagrant and intentional abuse of authority by those empowered to enforce the law,” rather than “good faith but honest errors in fulfilling one’s official duties” (id. at 445). Importantly, the two mens rea requirements were “not [meant] to limit in any substantive way the types of conduct that would be culpable” (see id. at 448). Moreover,

“[p]roof that a public servant intended to receive a benefit along with proof that he or she also knew the acts were ‘unauthorized’ negates the possibility that the misconduct was the product of inadvertence, incompetence, blunder, neglect or dereliction of duty, or any other act, no matter how egregious, that might more properly be considered in a disciplinary rather than a criminal forum” (id. [referencing commentary of the commission that drafted the current official misconduct statute] [additional emphasis added]).

A. Official Misconduct for Malfeasance

In order to be guilty of official misconduct for malfeasance a defendant (1) must commit an act that constitutes an unauthorized exercise of his or her official functions, (2) knowing that the act is unauthorized, (3) with the intent to obtain a benefit or deprive another of a benefit (Penal Law § 195.00 [1]). Here, defendant—eschewing the intrinsic purpose of his own department’s protocols and Penal Law § 450.10—argues that he did not commit an act that was an unauthorized exercise of his official functions because the police have the unfettered authority to return stolen property in their possession to its rightful owner. The People counter that the return of the stolen property in this case was an unauthorized exercise of defendant’s official functions because it violated departmental protocol and state law (Penal Law § 450.10) governing the return of evidence in a pending criminal investigation or matter and was done for the singular corrupt purpose of averting Z.P.’s arrest.

We disagree with defendant’s assertion that he cannot be guilty of malfeasance because the return of stolen property to its owner is an act that is inherently authorized. However, we also disagree with the People’s assertion that the act of returning the stolen property to the High School was unauthorized on the sole basis that it was prompted by a corrupt motive or purpose. Instead, we clarify that the same act may be authorized in some cases, but unauthorized in others, based on a consideration of all the surrounding circumstances. Evidence of these circumstances may include, among other things, the manner in which the act was undertaken, the governing guidelines, rules, and protocols, as well as the actor’s motive.

For example, in People v Feerick (93 NY2d 433 [1999]), police officers sought to recover a missing police radio—something they indeed had the authority to do. However, because the officers recovered the radio by entering and searching an apartment and detaining the occupants, all without the occupants’ consent and without a warrant that the officers had been directed to obtain, we concluded that their actions constituted an unauthorized exercise of their official functions (id. at 448). We held that “defendants—although purportedly acting under the authority of the Police Department and while on duty— were not pursuing the radio in furtherance of prescribed law enforcement duties, but rather in violation of orders and for their own benefit” (id. at 449).

Here, the evidence is sufficient to establish that defendant, along with his accomplices, used his position of power to orchestrate the return of unvouchered evidence to the school authorities with the goal of terminating the open felony investigation of his friend Gary Parker’s son and preventing the son’s imminent arrest. Defendant became involved in the return effort at Parker’s behest a mere two days after a veteran detective, who was not part of the conspiracy, refused to leave the unvouchered evidence with the victim after the principal made clear she was not withdrawing the criminal allegations in this open felony investigation. Defendant communicated with both Parker and the Squad’s then-commanding officer, Sharpe, and Sharpe continued to issue directives to Coffey. Coffey testified that he knew that as part of his official duties he was supposed to investigate the felony larceny, knew he had ample basis to arrest Z.P., and knew he was responsible for vouchering the stolen property as well as securing the surveillance video of the crime. Coffey admittedly evaded these duties because his supervising officer, who was acting in furtherance of the conspiracy, made clear that there would be no arrest or prosecution in this case.

Coffey’s understanding of NCPD procedures with respect to handling evidence in an open felony investigation was corroborated by the testimony of two other detectives on the Squad as well as by that of the lieutenant who preceded Sharpe in the command of the Squad. Both detectives explained that whenever the police obtain property a PDCN106 (also known as a voucher) must be filled out and the property along with the voucher must be delivered to the custody of the Property Bureau. One of the detectives also testified that notice of the return of property, which constitutes evidence in an open case, must be given to the District Attorney. Further, he testified that a DD89 (“District Attorney’s release form for property”) must be filled out and signed by the District Attorney before this property is returned. To this point, the lieutenant testified that there is an “onus on the police to preserve evidence so that if we go forward in a case it’s available to be reviewed in that case.” Moreover, she testified that before returning property in an open case there are set procedures, which include taking photographs of the property and reaching out to the District Attorney, that must be followed.

Preservation of evidence, which is the very goal of Penal Law § 450.10, is undertaken to maintain the evidence’s integrity for the prosecution of the case while affording due process to the defendant by providing his attorney with the opportunity to review the evidence before its return to the victim. In this case, the District Attorney was kept in the dark about the existence of the felony investigation. Additionally, Z.P.’s attorney, who was involved in negotiations with the High School, was never contacted by the police. Defendant’s accomplices did not comply with the notice and other requirements of the statute or department protocols. Thus, the trial testimony is sufficient to establish that the return of the evidence of the crime—under these specific circumstances, where the applicable statute and department protocols were not followed—was not an authorized exercise of official functions, that defendant knew that the official actions taken were unauthorized, and that these actions were undertaken with the intent to obtain a benefit.

Defendant’s argument to the contrary ignores the fact that, by the design of defendant and his accomplices, the return of evidence to the victim in this open felony case was done to avoid the procedural triggers designed to alert other members of law enforcement with official interests in the safekeeping of evidence to the unauthorized acts of the coconspirators. As in Feerick, it is defendant’s knowing participation in a “purportedly” authorized official action, which was actually done in blatant violation of department protocols and state law, coupled with the intent to thwart arrest and prosecution of a suspect, all to the benefit of the suspect’s father, that permitted the jury to rationally conclude there was legally sufficient evidence to convict defendant of official misconduct under a theory of malfeasance.

B. Official Misconduct for Nonfeasance

Turning to official misconduct for nonfeasance, to be guilty of this crime a defendant (1) must knowingly refrain from performing a duty imposed by law or clearly inherent in the nature of his or her office (2) with the intent to obtain a benefit or deprive another of a benefit (Penal Law § 195.00 [2]). Defendant argues that this Court should adopt a bright-line rule that nonfeasance cannot lie where a public servant has failed to perform a discretionary—as opposed to a mandatory—duty. Conversely, the People argue that defendant, along with his police accomplices, had a mandatory duty inherent in the nature of their office to follow the normal path of investigation of a sworn complaint of a felony from a cooperative victim and make an arrest when there was ample probable cause to believe Z.P. committed the larceny.

Many of the duties imposed on the vast category of public servants covered by the statute are imbued with some degree of discretion. There is nothing in the plain language of the statute that suggests the word “duty” is only meant to encompass mandatory duties in which there is absolutely no room for the exercise of discretion. Indeed, Black’s Law Dictionary has separate entries for “duty” and “discretionary duty,” intimating that a discretionary duty is but one type of duty (compare Black’s Law Dictionary [10th ed 2014], duty with id., discretionary duty). Instead, the plain language of the statute demonstrates that it is not the mandatory or discretionary nature of the failure to act that satisfies the duty element of nonfeasance, but rather it is the causal connection of the failure to a “flagrant and intentional abuse of authority by those empowered to enforce the law” (Feerick, 93 NY2d at 445). Therefore, “[w]e reject this narrow interpretation of the statute and, in accordance with the statutory mandate with respect to interpretation . . . , [we] hold that the crime of official misconduct may occur even where the public official’s duty is couched with discretion” (People v Mackell, 47 AD2d 209, 217 [2d Dept 1975], affd 40 NY2d 59 [1976]).

Certainly, a public servant’s knowing refusal to perform a mandatory action coupled with an intent to obtain a benefit constitutes nonfeasance. However, when a public servant, with the intent to obtain a benefit, knowingly refuses to perform a discretionary duty, the performance of which is so obviously fundamental to accomplishing the goals of the public servant’s office, that refusal cannot legitimately be understood to be an exercise of discretion; rather, it constitutes an abuse of discretion, which equates to nonfeasance. In such a situation, the public servant has, in essence, abdicated his or her sworn duty.

Defendant’s contention—that because police officers have a measure of discretion in performing their sworn duties to arrest and investigate, as a matter of law he cannot be said to have knowingly refrained from performing these duties— completely undermines a statute intended to criminalize public corruption. We readily acknowledge that the scope of a police officer’s duties at the arrest and investigation stages involves the exercise of reasonable discretion. Here, however, Coffey admitted he did not exercise his discretion in failing to investigate the case and arrest Z.P. Instead, he complied with the unsavory directives of his accomplice supervisors, following the orders of those of a higher rank in his department, and knowingly failed to perform his duties. Coffey knew that a felony had been committed at the High School by a suspect identified by the victim, but he did not take written statements from known witnesses, view or obtain a copy of the surveillance video that showed the suspect entering and leaving the building, voucher the evidence, or follow up on the investigation, despite having a cooperative complainant. In a conspiracy, the actions of a coconspirator, like Coffey, are attributable to the other conspirators (see People v Caban, 5 NY3d 143, 148 [2005]; People v Salko, 47 NY2d 230, 237 [1979]). Similarly, because defendant was charged as both a principal and an accomplice, he is criminally liable for the conduct of any other person if he acted with the mental culpability required for committing the underlying offense and solicited, requested, commanded, importuned or intentionally aided that person to engage in conduct constituting the offense (see Penal Law § 20.00). The officers here had no valid reason not to move forward with the investigation, and defendant, as an accomplice with a shared intent, can be held criminally responsible for the purposeful inertia of his accomplices.

Pivotally, the evidence was sufficient to establish that the termination of Z.P.’s case—which before defendant’s accomplices got involved had been moving along in the normal investigative process toward arrest and prosecution—could not be attributed to any legitimate reason, such as an uncooperative victim, a lack of evidence, or the District Attorney’s decision not to prosecute the case. Contrary to defendant’s claim, this was not a failure of an officer to perform a discretionary duty, but a disavowal of a sworn duty by a public official, as defendant and his accomplices sought to avoid the inexorable result that performance of such duty would have produced. Thus, the evidence was sufficient to prove that defendant committed the crime of official misconduct by nonfeasance when he directed his accomplice officers to refrain from performing their fundamental duty to investigate a crime, a duty inherent in the nature of their office.

We also reject defendant’s contention that the officers here did not “refrain! ] from performing . . . dutfies]” as this phrase is understood in Penal Law § 195.00 (2) because the adoption of such a holding would upset the balance in the criminal justice system that exists between the duty of the police officer and that of the District Attorney (NY Const, art XIII, § 13; County Law § 700; see generally Matter of Johnson v Pataki, 91 NY2d 214 [1997]). The constitutional and statutory authority to arrest has reasonable and necessary parameters and does not bestow unfettered discretion on the police to purposely stop the investigation of a legitimate felony complaint in an attempt to prevent the prosecution of a known suspect in order to obtain a benefit for the suspect’s father.

Thus, in sum, we hold that on this record the jury could have rationally concluded that the elements of official misconduct by nonfeasance were established by proof that defendant, acting alone and with others, in his supervisory capacity, caused the abdication of the inherent duty to investigate a felony complaint in order to prevent the arrest and prosecution of Z.P., where there was overwhelming evidence of the crime, all to the benefit of the suspect’s father.

C. Conspiracy in the Sixth Degree

Defendant’s next contention—that there was legally insufficient evidence to support his conspiracy conviction—is similarly unavailing. To be guilty of conspiracy in the sixth degree, a defendant (1) must “with intent that conduct constituting a crime be performed” (2) “agree [ ] with one or more persons to engage in or cause the performance of such conduct” (Penal Law § 105.00 [emphasis added]).

“The crime of conspiracy is an offense separate from the crime that is the object of the conspiracy. Once an illicit agreement is shown, the overt act of any conspirator may be attributed to other conspirators to establish the offense of conspiracy and that act may be the object crime. But the overt act itself is not the crime in a conspiracy prosecution; it is merely an element of the crime that has as its basis the agreement. It is not offensive to permit a conviction of conspiracy to stand on the overt act committed by another, for the act merely provides corroboration of the existence of the agreement and indicates that the agreement has reached a point where it poses a sufficient threat to society to impose sanctions” (People v McGee, 49 NY2d 48, 57-58 [1979] [citations omitted]).

As we have already concluded that the evidence, when viewed in the light most favorable to the People, was sufficient to prove the crime of official misconduct beyond a reasonable doubt, the first element of conspiracy has been satisfied. We further conclude that the second element of conspiracy has been satisfied as there was sufficient evidence of the coconspira-tors’ agreement to commit the crime of official misconduct in this case. The existence of a conspiracy was supported by the trial testimony of the coconspirators, by defendant’s admissions in his emails with Sharpe and Parker, and by abundant circumstantial evidence, which, when viewed in the light most favorable to the People, support the jury’s finding. As we have long observed, “[i]n prosecutions for the crime of conspiracy the People’s case must usually rest upon circumstantial evidence. Defendants, with the education, training and experience of the defendants in this case, do not conduct criminal conspiracies by making written records of their acts” (People v Seely, 253 NY 330, 339 [1930]).

IV.

Lastly, defendant claims that he was denied his right to a fair trial because the trial court improperly admitted into evidence, pursuant to the coconspirator exception to the hearsay rule, coconspirator hearsay statements made in furtherance of the conspiracy but prior to defendant joining the conspiracy and after defendant’s active participation in the conspiracy ceased. This is an issue of first impression in our Court. We now hold that when a conspirator subsequently joins an ongoing conspiracy, any previous statements made by his or her coconspirators in furtherance of the conspiracy are admissible against the conspirator pursuant to the coconspirator exception to the hearsay rule. This holding is in line with precedent of the Supreme Court of the United States, as well as with the vast majority of federal circuit courts, which have held, pursuant to the Federal Rules of Evidence, that “previous statements made by co-conspirators are admissible against a defendant who subsequently joins the conspiracy” (United States v Brown, 943 F2d 1246, 1255 [10th Cir 1991] [observing that First, Second, Third, Fourth, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits have all adopted this “prevailing view”]; see United States v United States Gypsum Co., 333 US 364, 393 [1948] [holding the same prior to the adoption of the Federal Rules of Evidence]). We agree with the rationale for this rule expressed by the Second Circuit in United States v Badalamenti (794 F2d 821 [2d Cir 1986]): “a new recruit can be thought to have joined [the conspiracy] with an implied adoption of what had gone on before to enhance the enterprise of which he is taking advantage” (id. at 828 [internal quotation marks omitted]). Here, that is certainly the case where defendant, a high-ranking officer in the NCPD, joined the conspiracy after a discussion with coconspirator Parker in which Parker informed defendant of what had transpired and enlisted his help to prevent the criminal case from proceeding against Z.P.

We further conclude, in line with federal case law, that statements made after a conspirator’s alleged active involvement in the conspiracy has ceased, but the conspiracy continues, are admissible unless this conspirator has unequivocally communicated his or her withdrawal from the conspiracy to the coconspirators (see United States v Brown, 332 F3d 363, 373-374 [6th Cir 2003] [“The defendant carries the burden of proving withdrawal, and must show that he took affirmative action to defeat or disavow the purpose of the conspiracy. Without such action, liability continues for all actions in furtherance of the conspiracy by other conspirators” (internal quotation marks and citation omitted)]; see also United States v Moore, 651 F3d 30, 90 [DC Cir 2011] [concluding the defendant bears burden of proving withdrawal in line with holdings of the Second, Fifth, Sixth, Tenth, and Eleventh Circuits]). Here, defendant makes no argument that such a communication was made. Therefore, we conclude that the trial court made no error in admitting any of the coconspirator statements.

We hold that defendant’s remaining contentions lack merit.

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

Judges Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur; Judge Wilson taking no part.

Order affirmed.

      . The withdrawal form is on NCPD letterhead and states in part, “[t]he Detectives have advised me that they are prepared to proceed with this case. However, I no longer wish to prosecute . . .

      . Leaving the evidence unvouchered in the Squad’s locker effectively bypassed various police protocols that required notice to the interested parties, including the department. A signed “Property Bureau Invoice” (PDCN106) form was required to be filed to voucher any property, not just evidence of a crime, in the Property Bureau. Moreover, once the physical items were in the custody of the Property Bureau, a “Property Disposition Card” (PDCN83) and a “Notice to Claimant Card” (PDCN110) “must accompany ALL property which is to be destroyed or returned.”

      . Coffey testified that “NPA” stood for “no police action;

      . Defendant was also indicted for receiving reward for official misconduct in the second degree. He was acquitted of this charge at trial.

        . These dates correspond with the day the High School reported the theft to the NCPD and the day Coffey and Sharpe filed the false report to close out the case.

      . These dates correspond with the day defendant first spoke with Gary Parker about Z.P.’s case at the U.S. Open and the day Parker’s wife mailed two gift cards to defendant.

      . On September 11, defendant confirmed his receipt of the two gift cards.

      . A “benefit” is defined as “any gain or advantage to the beneficiary and includes any gain or advantage to a third person pursuant to the desire or consent of the beneficiary” (Penal Law § 10.00 [17]).

      . Although the record contains two Polaroid photographs, Coffey, who was the investigating detective and responsible for the evidence, testified that he did not take these photographs and did not know their source. Indeed, Coffey found the photographs in the box containing the unvouchered evidence that was stored in the Squad’s locker. It does not appear that these photographs were taken in accordance with NCPD policy on vouchering evidence.


text:
    [71 NE3d 530, 49 NYS3d 39]
    Jose Marin et al., Plaintiffs, v Constitution Realty, LLC, et al., Defendants. Sheryl Menkes, Esq., Nonparty Appellant, v David B. Golomb, Esq., et al., Nonparty Respondents.
    Argued January 3, 2017;
    decided February 9, 2017

      POINTS OF COUNSEL

      Mischel & Horn, P.C., New York City (Scott T. Horn of counsel), for nonparty appellant.

      Sullivan Papain Block McGrath & Cannavo, P.C., New York City {Brian J. Shoot of counsel), for David B. Golomb, Esq., nonparty respondent.

      Parker Watchman LLP, Port Washington (Jay L. T. Break-stone of counsel), for Barbara Manheimer, executrix of the Estate of Jeffrey A. Manheimer, Esq., nonparty respondent.
   OPINION OF THE COURT

Chief Judge DiFiore.

Plaintiffs Jose and Ada Marin obtained an $8 million settlement for serious injuries Jose Marin sustained when he fell approximately 40 feet while working on a building in Manhattan. This appeal concerns a fee dispute between plaintiffs’ attorney of record in that action, Sheryl Menkes, and two attorneys she engaged to assist her: Jeffrey A. Manheimer and David B. Golomb. Based on the plain language of their respective fee-sharing agreements, we conclude that Manheimer is entitled to 20% of net attorneys’ fees and Golomb is entitled to 12% of net attorneys’ fees. We therefore modify the Appellate Division order accordingly.

I

A.

In February 2009, Menkes engaged Manheimer to act as co-counsel and provide advice in the action. Their written agreement provided that Manheimer would receive 20% of net attorneys’ fees if the case settled before trial and 25% once jury selection commenced. Neither attorney informed the clients of Manheimer’s involvement, although Manheimer believed Men-kes had done so. The failure to inform the clients violated the former Code of Professional Responsibility DR 2-107 (a) (22 NYCRR 1200.12 [a]) and the current Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.5 (g). In June 2009, the agreement was amended to specify that Manheimer would act solely in an advisory capacity and would “not contact the client[s], defendants!’] experts or the [c]ourt” without Menkes’s permission. The fee arrangement was unchanged. In August 2009, Menkes wrote to Manheimer unilaterally discharging him and advising him that his portion of the fees would be determined on a quantum meruit basis. Manheimer did not respond to Menkes; he did no further work on the case.

B.

In August 2012, Menkes obtained partial summary judgment on liability under Labor Law § 240 (1) on plaintiffs’ behalf. She later sought assistance from Golomb for an upcoming mediation—scheduled for May 20, 2013—and a potential trial on damages. In March 2013, Menkes and Golomb entered into a written agreement, which stated, in relevant part:

“I [Golomb] have agreed to review the file, provide whatever services are needed, with your and your office’s assistance, to prepare it for the mediation and to handle the mediation. For those services, I will be [sic] receive twelve (12%) percent of all attorneys’ fees whenever the case is resolved, whether by settlement, verdict after trial or appeal, calculated after the attorneys have been reimbursed for all expenses laid out. This percentage due shall become fixed and owed upon execution of this agreement.
“If the case does not resolve at the mediation, presently scheduled for May 20, 2013, then I will be responsible, with your and your office’s assistance as requested, for preparing for trial and trying the case. After such mediation, I will be entitled to forty (40%) percent of all attorneys’ fees whenever the case is resolved, whether by settlement, verdict after trial or appeal, calculated after the attorneys have been reimbursed for all expenses laid out. In the event this matter has to be tried, the total of all attorneys’ fees to which I am entitled for all of the services set forth, including mediation, shall be forty (40%) percent of all attorneys’ fees whenever the case is resolved, whether by settlement, verdict after trial or appeal, calculated after the attorneys have been reimbursed for all expenses laid out.”

The mediation began on May 20, 2013 at 2:00 p.m. Although the parties’ original settlement positions were approximately $17 million apart, by the time the session concluded at approximately 7:00 p.m., the gap was about $1.5 million. Since the excess insurance carriers lacked authority to increase their offer at that time, the mediation session ended without a settlement agreement. On May 22, 2013, and during the following week, the mediator maintained contact with both Golomb and the carriers. On May 31, 2013, the mediator telephoned Golomb to convey a settlement offer of $8 million, which Golomb accepted on plaintiffs’ behalf. The final terms of the settlement agreement were memorialized in a June 5, 2013 letter.

C.

Menkes moved for an order establishing Golomb’s attorneys’ fees at 12% of net attorneys’ fees and, after Manheimer intervened, Menkes also moved for an order setting his fees on a quantum meruit basis. Manheimer and Golomb each cross-moved: Manheimer to fix his fee at 20% of net attorneys’ fees and Golomb, as relevant here, to fix his fee at 40% of net attorneys’ fees.

Supreme Court denied Menkes’s motion and granted both cross motions (42 Mise 3d 1227[A], 2014 NY Slip Op 50206[U] [Sup Ct, NY County 2014]). As to Manheimer, Supreme Court held that both the February and June 2009 agreements unequivocally and unambiguously entitled Manheimer to 20% of net attorneys’ fees. Supreme Court rejected Menkes’s argument that because plaintiffs were never notified of and never consented to Manheimer’s role as cocounsel, the agreements were unenforceable. As to Golomb, Supreme Court concluded that the plain language of the agreement provided that Golomb was entitled to 40% of net attorneys’ fees because the case did not settle at the mediation session on May 20, 2013.

On appeal, the Appellate Division affirmed, with two Justices dissenting (128 AD3d 505 [1st Dept 2015]). That Court unanimously agreed that Manheimer was entitled to 20% of net attorneys’ fees (see id. at 512, 513). With respect to Golomb, the Court concluded that the plain language of the agreement between Golomb and Menkes provided that Golomb was entitled to 40% of net attorneys’ fees because: (1) the agreement referenced “ ‘the mediation,’ not the ‘process’ of mediation,” (2) “the mediation” was defined as the one “ ‘presently scheduled for May 20, 2013,’ ” and (3) nothing in the agreement “conditioned] Golomb’s entitlement to the higher fee upon his commencing or taking any steps to prepare for trial” {id. at 509-510).

Two dissenting Justices would have held that the plain language entitled Golomb to only 12% of the attorneys’ fees, noting that “the mediation,” as used in the first substantive paragraph of the agreement, was not limited to a single date or session and that the words “presently scheduled for May 20, 2013,” were descriptive, not limiting, because they were placed between commas {id. at 515-516). According to the dissent, the Court’s analysis failed to give weight to the language requiring Golomb to “ ‘prepar[e] for trial and try[ ] the case’ ” in order to be entitled to the 40% fee {id. at 515).

Menkes appealed as of right pursuant to CPLR 5601 (a), which brings up for our review Menkes’s agreements with both Manheimer and Golomb.

II.

We conclude that Menkes s agreements with Manheimer are enforceable and entitle Manheimer to 20% of net attorneys’ fees.

Menkes’s attempt to use the ethical rules as a sword to render unenforceable, as between the two attorneys, the agreements with Manheimer that she herself drafted is unavailing. Her failure to inform her clients of Manheimer’s retention, while a serious ethical violation, does not allow her to avoid otherwise enforceable contracts under the circumstances of this case (see Samuel v Druckman & Sinel, LLP, 12 NY3d 205, 210 [2009]). As we have previously stated, “it ill becomes defendants, who are also bound by the Code of Professional Responsibility, to seek to avoid on ‘ethical’ grounds the obligations of an agreement to which they freely assented and from which they reaped the benefits” (Benjamin v Koeppel, 85 NY2d 549, 556 [1995] [citation omitted]). This is particularly true here, where Menkes and Manheimer both failed to inform the clients about Manheimer’s retention, Menkes led Manheimer to believe that the clients were so informed, and the clients themselves were not adversely affected by the ethical breach.

Menkes’s remaining arguments with respect to Manheimer are either without merit or are not preserved for our review.

I—I I—1 I—I

As to the agreement between Golomb and Menkes, general principles of contract interpretation control. “ [Agreements are construed in accord with the parties’ intent” (Greenfield v Philles Records, 98 NY2d 562, 569 [2002] [citation omitted]). The best evidence of that intent is the parties’ writing (see id.). “[A] contract should be ‘read as a whole, . . . and if possible it will be so interpreted as to give effect to its general purpose’ ” (Beal Sav. Bank v Sommer, 8 NY3d 318, 324-325 [2007] [citation omitted]). “[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Greenfield, 98 NY2d at 569). Whether an agreement is ambiguous or unambiguous “is an issue of law for the courts to decide” (id.). Here, both parties maintain that the agreement is unambiguous.

The plain language of Menkes’s agreement with Golomb entitles Golomb to 12% of net attorneys’ fees if the matter resolved through the mediation that was scheduled to begin, but did not need to conclude, on May 20, 2013. That is what occurred here.

Two paragraphs of the agreement spell out the fee arrangement. The first states that Golomb will “provide whatever services are needed ... to prepare [the matter] for the mediation and to handle the mediation.” “For those services,” i.e., preparing for and handling the mediation, Golomb will “receive twelve (12%) percent of all attorneys’ fees whenever the case is resolved.” No specific date or dates are mentioned for the mediation.

The subsequent paragraph states that “[i]f the case does not resolve at the mediation, presently scheduled for May 20, 2013, then [Golomb] will be responsible ... for preparing for trial and trying the case. After such mediation, [Golomb] will be entitled to forty (40%) percent of all attorneys’ fees whenever the case is resolved.” Although the agreement references the date of May 20, 2013, the agreement does not require that the mediation be concluded during a single-day session. Nor was the mediation limited to the specific date identified in the agreement; rather, the use of commas indicates that the date was merely descriptive of the mediation, and not intended to restrict the mediation to that date (see William Strunk Jr. & E.B. White, The Elements of Style 3-5 [4th ed 2000]). The agreement plainly contemplated the fact that many mediation efforts require multiple sessions or follow-up conversations before settlement can be achieved.

Moreover, the next sentence of the Golomb agreement reads “[i]n the event this matter has to be tried, the total of all attorneys’ fees to which [Golomb will be] entitled for all of the services set forth, including mediation, shall be forty (40%) percent of all attorneys’ fees whenever the case is resolved.” Thus, the clear intent of the agreement is that the 40% fee will be triggered only if the matter moves past mediation.

Here, the mediator and Golomb communicated in the days following the May 20 mediation session, with the mediator continuing to act as go-between. Ten days after the session, the mediator communicated the final $8 million offer, which Golomb accepted. Reading the agreement as a whole, the plain language of the agreement entitles Golomb to 12% of net attorneys’ fees.

Accordingly, the order of the Appellate Division should be modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.

Judges Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur; Judge Wilson taking no part.

Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.

      . Barbara Manheimer appears in this action as Executrix of the Estate of Jeffrey Manheimer.

      . The Rules of Professional Conduct replaced the Code of Professional Responsibility as the governing rules for attorney conduct in New York effective April 1, 2009.

      . Plaintiffs were notified of, and consented to, the arrangement between Menkes and Golomb. At this time, Menkes also represented in the agreement that no other attorneys were participating in the fee.

      . The balance of Golomb’s cross motion is not before us on this appeal.

      . The conflicting opinions below disagreed as to whether Menkes preserved her argument that the phrase “presently scheduled for May 20, 2013,” offset by commas, was a descriptive term, rather than a limiting term (see 128 AD3d at 510, 516-517). We conclude that the argument is properly before us.


text:
    [71 NE3d 556, 49 NYS3d 65]
    Lend Lease (US) Construction LMB Inc. et al., Appellants, v Zurich American Insurance Company et al., Respondents.
    Argued January 11, 2017;
    decided February 14, 2017

      POINTS OF COUNSEL

      Carroll McNulty & Kull LLC, New York City (Matthew J. Lodge of counsel), for Lend Lease (US) Construction LMB Inc., appellant.

      Greenberg, Trager & Herbst, LLP, New York City (.Richard J. Lambert of counsel), for Extell West 57th Street LLC, appellant.

      Mound Cotton Wollan & Greengrass LLP, New York City (Philip C. Silverberg, Mark S. Katz and Sanjit Shah of counsel), for respondents.
   OPINION OF THE COURT

Fahey, J.

In this action, plaintiffs seek a declaration of coverage under a program of builder’s risk insurance furnished by defendants for loss—specifically, damage to a tower crane—caused by Su-perstorm Sandy. At issue here is the question whether the crane is covered in the first instance under the insurance provided for temporary works and, if so, whether the contractor’s tools exclusion defeats that initial grant of coverage. Also at issue—and critical to our analysis—is the question whether the contractor’s tools exclusion is ineffective because it would render the coverage granted in the first instance for temporary works illusory. Assuming that the policy contains coverage for the crane in the first instance, we conclude that the contractor’s tools exclusion would defeat that coverage, and that such exclusion does not render the coverage afforded under the temporary works provision of the policy illusory. We therefore affirm the Appellate Division order granting summary judgment declaring that defendants have no obligation to provide coverage for the subject loss under the policy.

L

In October 2012, plaintiff Extell West 57th Street LLC was constructing a 74-story skyscraper—commonly known as the One57 Building—at 157 West 57th Street in Manhattan. Extell had retained plaintiff Lend Lease (US) Construction LMB Inc. to act as the construction manager for that project and, in that capacity, Lend Lease had contracted with nonparty Pinnacle Industries II, LLC for certain structural concrete work with respect to that endeavor. Pursuant to its contract with Lend Lease, Pinnacle was to furnish and install, among other things, two diesel fuel tower cranes.

Only one of those cranes is at issue here. That crane was installed on a reinforced slab on the 20th floor of the building and, once all other trade work was completed at the project, it was to be dismantled and removed from the site. Several components of the crane, including beams cast into the slab and materials reinforcing the locations at which the crane was “tied” to the building as it arose next to that edifice, were designed to permanently remain part of the building upon the completion of construction.

By October 29, 2012, the crane had risen approximately 750 feet from its base. On that day, Superstorm Sandy made landfall in the New York City area. One of the most dramatic images of that landfall depicts the damage caused to the crane when the boom of the crane collapsed in high winds and teetered precariously from a height equal to the top of the building. Afterwards, “[t]he . . . blocks [surrounding the building] were evacuated for six days and the crisis became a riveting symbol of the city’s wounded infrastructure” (Charles V. Bagli, As Crane Hung in the Sky, a Drama Unfolded to Prevent a Catastrophe Below, NY Times, Nov. 6, 2012, available at http://www.nytimes.com/2012/ll/07/nyregion/drama-behind-securing-crippled-crane-in-manhattan.html).

At the time of that incident, Extell was the named insured on a program of builder’s risk insurance containing coverage in the amount of $700 million, that is, the total estimated cost of the project. The program is referred to as the “policy,” but it actually is an amalgamation of five separate insurance contracts, each of which was issued by a different defendant insurer and each of which covers a different percentage of the aggregate risk. Defendant Zurich American Insurance Company assumed half of the aggregate risk and furnished the “lead” policy with respect to that exposure.

At issue in this action is whether the policy covers damages sustained by Extell (the named insured) and Lend Lease (an additional insured) resulting from the weather-related harm to the crane. That determination turns on whether the crane is covered under the policy in the first instance and, if so, whether the policy’s contractor’s tools, machinery, plant and equipment exclusion (generally, contractor’s tools exclusion) defeats that coverage.

Following defendants’ denial and disclaimer of coverage with respect to this matter, plaintiffs commenced this action seeking, among other things, a declaration that the crane is covered property under the policy, and that coverage for the crane is not subject to any policy exclusion.

Supreme Court entered an order denying the competing motions and cross motions for summary judgment that eventually were filed with respect to that coverage question, ruling that there is an issue of fact whether the contractor’s tools exclusion defeats coverage for the subject loss (2015 NY Slip Op 30039[U] [Sup Ct, NY County 2015]). On appeal, however, the Appellate Division—with two Justices dissenting—modified that order by granting defendants’ cross motions for summary judgment and declaring “that defendants have no obligation to provide coverage under the . . . policy” (136 AD3d 52, 61 [1st Dept 2015]). The Court held that “[t]he . . . crane was integral, not ‘incidental to the project,’ and therefore does not fall within the [policy’s] definition of Temporary Works” {id. at 54). “Even if the . . . crane fell within the definition of Temporary Works,” the Court added, “the contractor’s tools . . . exclusion would be applicable and . . . enforceable” {id.).

By contrast, the dissenters would have affirmed Supreme Court’s order, reasoning that there is an issue of fact whether the policy contains coverage for the crane in the first instance {see id. at 69 [Mazzarelli, J.P., and Richter, J., dissenting]), and that, although the contractor’s tools exclusion pertains to the crane, such exclusion is unenforceable because to apply that exclusion here “would be to render coverage for temporary works illusory” {id. at 70). In essence, the dissenters concluded that the application of the contractor’s tools exclusion effectively would defeat all of the coverage granted in the first instance by the policy’s temporary works provision, and that such exclusion therefore is unenforceable as a matter of public policy.

Plaintiffs appeal to this Court as of right {see CPLR 5601 [a]), and we now affirm the Appellate Division order.

I—I WH

In determining a dispute over insurance coverage, we first look to the language of the policy” (Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 221 [2002]; see Matter of Viking Pump, Inc., 27 NY3d 244, 257 [2016]). “As with the construction of contracts generally, unambiguous provisions of an insurance contract must be given their plain and ordinary meaning, and the interpretation of such provisions is a question of law for the court” (Vigilant Ins. Co. v Bear Stearns Cos., Inc., 10 NY3d 170, 177 [2008] [internal quotation marks omitted]; see Viking Pump, 27 NY3d at 257; Selective Ins. Co. of Am. v County of Rensselaer, 26 NY3d 649, 655 [2016]). Of course, where “the policy may be reasonably interpreted in two conflicting manners, its terms are ambiguous” (Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321, 326 [1996]), and “any ambiguity must be construed in favor of the insured and against the insurer” (White v Continental Cas. Co., 9 NY3d 264, 267 [2007]; see Federal Ins. Co. v International Bus. Machs. Corp., 18 NY3d 642, 646 [2012]).

The question whether the policy covers the crane in the first instance turns on our interpretation of language germane to the policy’s insuring agreement. On this point the parties dispute whether the crane is a “temporary . . . structure [ ]” within the meaning of the policy, and whether the crane was “incidental to the project.” We conclude that the crane was a “structure” (see Lewis-Moors v Contel of N.Y., 78 NY2d 942, 943 [1991] [defining “structure” as including “any production or piece of work artificially built up or composed of parts joined together in some definite manner”]; see Joblon v Solow, 91 NY2d 457, 464 [1998] [same]; see also Merriam-Webster’s Collegiate Dictionary 1238 [11th ed 2003] [defining “structure” as “something (as a building) that is constructed”]). We further conclude that the crane was “temporary” in that it was anchored and tied to the building only “during construction” and was to be “removed when ... no longer needed.” Similarly, we conclude that the parties’ additional dispute as to whether the crane was “incidental to the project” is of no moment. The principal purpose of the project was the construction of the building, not the crane, and the installation and disassembly of the crane were merely incidental steps toward the completion of that edifice.

The parties also dispute whether the value of the crane was disclosed as part of the “total project value,” another requirement for coverage. On this record, we cannot make that determination as a matter of law. The evidence submitted with respect to the “total project value” question includes an affidavit of a Lend Lease executive, who averred that the actual market value of the crane was impliedly, but not expressly, disclosed to defendants as required for the crane to constitute a “temporary work”—and, therefore, “covered property”— within the meaning of the policy. Consequently, we agree with the dissenters at the Appellate Division to the extent they concluded that there is a triable issue of fact whether there is coverage for the subject loss in the first instance (see 136 AD3d at 71-72 [Mazzarelli, J.P., and Richter, J., dissenting]; see also Platek v Town of Hamburg, 24 NY3d 688, 694 [2015] [“it is the insured’s burden to establish the existence of coverage”]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

III.

Although we depart from the Appellate Division order by concluding that there is an issue of fact whether the policy contains coverage for the subject loss in the first instance, we nevertheless reach the same result as that Court. Namely, we conclude that there is no coverage for that loss under the policy because any coverage afforded by that contract in the first instance is defeated by the contractor’s tools exclusion. That exclusion provides that

“[t]h[e] Policy does not insure against loss or damage to . . . Contractor’s tools, machinery, plant and equipment including spare parts and accessories, whether owned, loaned, borrowed, hired or leased, and property of a similar nature not destined to become a permanent part of the INSURED PROJECT*, unless specifically endorsed to the Policy.”

“ ‘[B]efore an insurance company is permitted to avoid policy coverage, it must satisfy the burden which it bears of establishing that the exclusions or exemptions apply in the particular case, and that they are subject to no other reasonable interpretation’ ” (Dean v Tower Ins. Co. of N.Y., 19 NY3d 704, 708 [2012], quoting Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311 [1984] [citations omitted]). Extell, in particular, contends that defendants cannot have met that burden here because the crane is not a “tool” or “equipment” within the meaning of the contractor’s tools exclusion. The subject exclusion, however, also defeats coverage for “machinery,” and the crane falls squarely within this definition of that term. “Machinery” means, among other things, “machines in general or as a functioning unit,” and “machine” is defined as “a mechanically, electrically, or electronically operated device for performing a task” (Merriam-Webster’s Collegiate Dictionary 744 [11th ed 2003]). Although Extell submitted evidence that “components of [the crane were to] permanently remain part of the [b]uilding following the completion of construction,” those “components” consisted primarily of reinforcements and ties, and the record conclusively reflects that the principal parts of the crane were “not destined to become a permanent part of the [building]” upon the completion of construction. To that end, we conclude the contractor’s tools exclusion applies to the crane.

We further conclude that there is no force to plaintiffs’ effort to avoid application of that exclusion on the ground that it is so broad as to render coverage afforded under the temporary works provision of the policy illusory. To be sure, “[a]n insurance agreement is subject to principles of contract interpretation” (Universal Am. Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 25 NY3d 675, 680 [2015]), and an illusory contract—that is, “[a]n agreement in which one party gives as consideration a promise that is so insubstantial as to impose no obligation”—is “unenforceable” (Black’s Law Dictionary 370 [9th ed 2009]; see generally Thomas J. Lipton, Inc. v Liberty Mut. Ins. Co., 34 NY2d 356, 361 [1974]; Madawick Contr. Co. v Travelers Ins. Co., 307 NY 111, 118 [1954]). We agree with the Appellate Division, however, that “ ‘[a]n insurance policy is not illusory if it provides coverage for some acts [subject to] a potentially wide exclusion’ ” (136 AD3d at 60, quoting Associated Community Bancorp, Inc. v St. Paul Mercury Ins. Co., 118 AD3d 608 [1st Dept 2014] [internal quotation marks and citation omitted]).

Indeed, the contractor’s tools exclusion does not defeat all of the coverage afforded under the policy’s temporary works provision. That exclusion would not defeat coverage initially granted for such things as the cost of erecting scaffolding, for “temporary buildings,” and for such other things as “formwork, false-work, shoring, [and] fences,” which are not “tools” within the meaning of the exclusion. The enforcement of the exclusion does not create a result that “ ‘would have the exclusion swallow the policy’ ” (Reliance Ins. Co. v National Union Fire Ins. Co. of Pittsburgh, Pa., 262 AD2d 64, 65 [1st Dept 1999], quoting Camp Dresser & McKee, Inc. v Home Ins. Co., 30 Mass App Ct 318, 323, 568 NE2d 631, 634 [1991]). For the same reason the exclusion does not render the coverage granted under the temporary works provision illusory.

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

Chief Judge DiFiore and Judges Rivera, Abdus-Salaam, Stein and Garcia concur; Judge Wilson taking no part.

Order affirmed, with costs.

      . Specifically, plaintiffs sought coverage for “costs . . . relat[ing] directly to stabilizing, removing, and replacing the damaged crane.”

      . Detailed analyses of the relevant parts of the policy’s insuring clause and contractor’s tools exclusion appear in sections II and III of this opinion. Here, it bears noting only that the question whether the policy contains coverage in the first instance for the crane turns in part on whether the crane is a “temporary work,” as that phrase is incorporated in the insuring clause.

      . After plaintiffs provided timely notice of their purported losses, defendants denied and disclaimed coverage for those claims through a joint letter. There, defendants maintained that the policy does not cover the subject loss in the first instance and that, even if such coverage exists, it is defeated by the contractor’s tools exclusion.

      . The insuring clause provides that, “subject to the terms, exclusions, limitations and conditions contained [therein, the policy] insures against all risks of direct physical loss of or damage to Covered Property while at the location of the INSURED PROJECT* . . . .” The policy defines “covered property” as “the Insured’s interest in,” among other things, “temporary works.” The phrase “temporary works,” in turn, means
      “[a] 11 scaffolding (including scaffolding erection costs), formwork, falsework, shoring, fences, and temporary buildings or structures, including office and job site trailers, all incidental to the project, the value of which has been included in the estimated TOTAL PROJECT VALUE* of the INSURED PROJECT* declared by the Named Insured.”
      For its part, the phrase “total project value” is defined as
      “[t]he total value of PROPERTY UNDER CONSTRUCTION*, TEMPORARY WORKS*, existing structures (when endorsed to the Policy) and LANDSCAPING MATERIALS*; plus labor costs that will be expended in the INSURED PROJECT*; plus site general conditions, construction management fees, and contractor’s profit and overhead, all as stated in the Declarations.”

      . To the extent the crane is not a “temporary . . . structure] ]” and was not “incidental to the project,” it would not constitute a “temporary work” within the policy and therefore would not be covered thereunder.

      . To the extent the value of the crane was not disclosed as part of the “total project value,” the crane would not constitute a “temporary work” within the policy and therefore would not be covered thereunder.