text:
    [988 NE2d 879, 966 NYS2d 351]
    The People of the State of New York, Respondent, v Dayshawn P. Handy, Appellant.
    Argued February 6, 2013;
    decided March 28, 2013

      POINTS OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), for appellant.
    I. The People failed to present legally sufficient evidence of intent to cause physical injury. (People v Danielson, 9 NY3d 342; People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307; People v Hines, 97 NY2d 56; People v Gallagher, 69 NY2d 525; People v Steinberg, 79 NY2d 673; People v Fero, 156 AD2d 582; People v Bueno, 18 NY3d 160; People v Getch, 50 NY2d 456; People v Mahoney, 6 AD3d 1104.) II. The trial court’s failure to impose any sanction for the prosecution’s failure to preserve material and critical evidence requires reversal. (People v Steinberg, 79 NY2d 673; People v Smith, 79 NY2d 309; People v Rosario, 9 NY2d 286; People v Jackson, 78 NY2d 638; Brady v Maryland, 373 US 83; People v

      Martinez, 71 NY2d 937; People v Gee, 99 NY2d 158; People v Walsh, 262 NY 140; Jencks v United States, 353 US 657.)

      Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for respondent.
    I. The evidence was legally sufficient to prove defendant guilty of an intentional assault. (People v Bleakley, 69 NY2d 490; Matter of Kadeem W., 5 NY3d 864; People v Steinberg, 79 NY2d 673; People v Bueno, 18 NY3d 160; People v Barnes, 50 NY2d 375; People v Contes, 60 NY2d 620.) II. The trial court did not abuse its discretion in denying defendant’s request for a mandatory adverse inference instruction as to count 2. (People v Gibbs, 85 NY2d 899; People v Bryant, 31 NY2d 744; People v Jordan, 62 NY2d 825; People v Martinez, 71 NY2d 937; People v Iannelli, 69 NY2d 684; People v Liccione, 50 NY2d 850; People v Kelly, 62 NY2d 516; People v Banch, 80 NY2d 610; People v Joseph, 86 NY2d 565; People v Wallace, 76 NY2d 953.)
   OPINION OF THE COURT

Smith, J.

We hold that when a defendant in a criminal case, acting with due diligence, demands evidence that is reasonably likely to be of material importance, and that evidence has been destroyed by the State, the defendant is entitled to an adverse inference charge.

I

Defendant was charged with three assaults on three different deputy sheriffs, based on events that occurred while defendant was an inmate at the Monroe County Jail. Counts one and two referred to alleged assaults on November 8, 2006, and count three to an event on January 8, 2007. Defendant was acquitted on the first and third counts, but was convicted on the second. Though only the second count is before us, we will describe the evidence relating to counts one and two, because they arose out of a single sequence of events.

According to the testimony of Deputy Brandon Saeva, he approached defendant in his cell just after defendant had returned from a shower. Saeva noticed that defendant had sandals and boxer shorts that were not “jail issue,” and asked defendant to give them to him. After some discussion, defendant refused to give Saeva the sandals and took a swing at him, leading to a fistfight in which Saeva’s hand was injured. Another deputy helped Saeva get defendant under control, and defendant was then handed off to other staff who came to help.

Deputy Timothy Schliff testified that he was among those who took charge of defendant after his altercation with Saeva. When Schliff arrived on the scene, defendant was struggling with the men who were escorting him, and Schliff reached for defendant’s right leg to help control him. Defendant kicked back, injuring Schliff s thumb.

Defendant testified, giving a different version of events. He said that, after a verbal argument, Saeva started the physical fight by swinging at defendant, and that Saeva then tackled him. Defendant did not remember seeing Schliff among the deputies who escorted him away afterwards, but he denied kicking at or trying to hurt any deputies. The jury acquitted him of assaulting Saeva, but convicted him of assaulting Schliff.

The main issue before us concerns a video camera located in the cell block where defendant and Saeva had their altercation. Saeva testified that the camera faced toward defendant’s cell, but not “directly” toward it; it showed “only part of his doorway, but not much.” He testified that he had himself looked at the images recorded by that camera, and had been able to see a “very small part” of the November 8 incident. He testified that others were present when he looked at the images, but he could not remember who they were; nor could he remember whether he had looked at the images only once, or several times.

It is undisputed that these video images were destroyed before trial. According to a statement the prosecutor made on the first day of trial, it was jail policy to record over such images after 30 days. That time elapsed while defendant was being held on a felony complaint relating to the two November 8 incidents, but before he was indicted.

In an omnibus motion made before trial, defendant asked among other things to be told “[wjhether any electronic surveillance in any form was utilized in this case” and “the location of any such tapes.” The People responded in general terms that they “have provided all discoverable material in their possession” and that “[t]o the extent that there may be” any videotapes defendant would be permitted to view or inspect them. There was more specific pretrial discussion of video relating to the January 2007 incident—discussion that is now irrelevant, because the jury acquitted defendant of the charge relating to January—but the parties do not appear to have focused specifically on video of the November incidents until the time of trial.

At trial, the court agreed to give an adverse inference charge with respect to any video of the January incident, because defendant had asked for the preservation of that video before it was destroyed. Defendant, arguing that “[w]e made our request for preservation of the [November] video as soon as we could,” asked that the same charge be given as to counts one and two, but the court refused. The language of the charge given as to count three, but rejected as to counts one and two, was:

“You may consider the failure of the People to preserve that material in determining the weight to be given to the testimony of the People’s witnesses regarding this specific incident. The law permits, but does not require you to infer, if you believe it proper to do so, that had the material been preserved its contents would not support or be inconsistent with the witnessesP] testimony as to this incident.”

The Appellate Division affirmed defendant’s conviction on count two, rejecting his argument that an adverse inference charge should have been given (People v Handy, 83 AD3d 1454 [4th Dept 2011]). The Appellate Division said that “[t]here is no support in the record for defendant’s assertion that the alleged videotape was exculpatory and thus his contention that the alleged videotape was Brady material is merely speculative” {id. at 1455). A Judge of this Court granted leave to appeal (18 NY3d 924 [2012]), and we now reverse.

II

The questions that arise when a criminal defendant claims that evidence favorable to him has become unavailable through the fault of the prosecution take many forms, and have been answered in a number of ways.

Under the familiar Brady rule, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material . . . irrespective of the good faith or bad faith of the prosecution” (Brady v Maryland, 373 US 83, 87 [1963]). Even without a request, disclosure of such evidence is required “if the omitted evidence creates a reasonable doubt that did not otherwise exist” of the defendant’s guilt (United States v Agurs, 427 US 97, 112 [1976]). The application of these rules to cases where evidence has been lost or destroyed, so that it is impossible to know for sure whether it would have helped the defendant or not, has caused much debate. The United States Supreme Court has held that any duty of a state to preserve evidence “must be limited to evidence that might be expected to play a significant role in the suspect’s defense” (California v Trombetta, 467 US 479, 488 [1984]). And in Arizona v Youngblood (488 US 51, 58 [1988]), the Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”

A number of state courts have rejected the Youngblood holding in interpreting their state constitutions, while others have followed it (see generally State v Tiedemann, 2007 UT 49, ¶ 42, 162 P3d 1106, 1116 [Utah 2007] [collecting cases]; Daniel R. Dinger, Note, Should Lost Evidence Mean a Lost Chance to Prosecute?: State Rejections of the United States Supreme Court Decision in Arizona v Youngblood, 27 Am J Crim L 329 [2000]). Our Court has not addressed the Youngblood issue directly, though we have considered related issues (see People v Hayes, 17 NY3d 46, 50-52 [2011] [rejecting a rule that would require the prosecution affirmatively to obtain evidence for the benefit of a criminal defendant]; People v Jardin, 88 NY2d 956, 958 [1996] [rejecting claim that due process required the prosecution “to gather and adequately preserve a sample of semen sufficient for DNA testing”]; People v Haupt, 71 NY2d 929, 930-931 [1988] [rejecting dismissal where inadvertently destroyed evidence “had little or no relevance” to the main issue at trial]; People v Kelly, 62 NY2d 516, 518-522 [1984] [rejecting dismissal for failure to preserve evidence because “less drastic sanctions would have cured any prejudice”]). Several Appellate Division decisions follow Youngblood (e.g. People v Feliciano, 301 AD2d 480 [1st Dept 2003]; People v Callendar, 207 AD2d 900 [2d Dept 1994]; People v Bridges, 184 AD2d 1042 [4th Dept 1992]).

Here, defendant asks us to depart from Youngblood and adopt an interpretation of the New York Constitution that is more favorable to defendants. We see no need, however, either to agree or disagree with Youngblood, or indeed to address any constitutional issue. Youngblood held only that dismissal of an indictment was not required by the Due Process Clause; defendant here did not seek dismissal of the indictment based on the People’s failure to preserve the video images. The only question before us is whether an adverse inference charge should have been given.

We resolve this case, following the approach taken by the Maryland Court of Appeals in Cost v State (417 Md 360, 10 A3d 184 [2010]), by holding that, under the New York law of evidence, a permissive adverse inference charge should be given where a defendant, using reasonable diligence, has requested evidence reasonably likely to be material, and where that evidence has been destroyed by agents of the State. This rule is not in tension with the holding of Youngblood-, an adverse inference charge was given in that case, as Justice Stevens emphasized in his concurring opinion (488 US at 59-60).

A principal advantage of the Youngblood rule is that it avoids the drastic sanction of dismissal, except in cases where the bad faith of the police shows their own belief “that the evidence could form a basis for exonerating the defendant” (Youngblood, 488 US at 58). A disadvantage is that it subjects defendants to the risk that exculpatory evidence has been lost, even where the loss is the State’s fault. Thus, the Appellate Division here characterized “defendant’s assertion that the alleged videotape was exculpatory” as “merely speculative” (People v Handy, 83 AD3d at 1455). But it was State agents who, by destroying the video, created the need to speculate about its contents. An adverse inference charge mitigates the harm done to defendant by the loss of the evidence, without terminating the prosecution.

At least as important, the rule gives the State an incentive to avoid the destruction of evidence. It is surely desirable to raise the consciousness of State employees on this subject. For example, in cases, like the one before us, that arise out of events in jails or prisons, the authorities in charge should, when something that will foreseeably lead to criminal prosecution occurs, take whatever steps are necessary to insure that the video will not be erased—whether by simply taking a tape or disc out of a machine, or by instructing a computer not to delete the material. The rule we adopt today increases the chance that the staffs of these institutions will act accordingly.

Our rule is unlikely, we think, to increase greatly the risk that a good faith error by the State will lead to a guilty defendant’s acquittal. We hold only that the jury should be told it may draw an inference in defendant’s favor. This instruction, as the Maryland court suggested in Cost, could be labeled a “missing evidence” instruction (417 Md at 369, 10 A3d at 190)—not unlike the “missing witness” instruction given when a party fails to call a witness who is under that party’s control and might be expected to give favorable testimony (see People v Savinon, 100 NY2d 192 [2003]). The instruction “neither establishes a legal presumption nor furnishes substantive proof’ (Cost, 417 Md at 382, 10 A3d at 197).

ra

The application of the rule to this case is clear: defendant was entitled, as he requested, to have the adverse inference charge the court gave made applicable to all counts. The evidence in question—the destroyed video images—admittedly captured part of the encounter between Saeva and defendant. We cannot unquestioningly accept Saeva’s assertion that it was a “very small part.” Saeva recognized the potential importance of the video by choosing to look at it himself. Defendant should have had the same opportunity. And while the video was most directly relevant to count one—the alleged assault on Saeva, of which defendant was acquitted—the alleged assault on Schliff, of which he was convicted, followed immediately afterwards and was part of the same chain of events. A video showing that defendant either was or was not a violent aggressor in the Saeva incident would be helpful to a jury trying to decide whether Schliff s or defendant’s account of the later incident was true.

Defendant’s argument that the evidence was insufficient to support the jury’s guilty verdict is without merit.

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

Chief Judge Lippman and Judges Graffeo, Read and Pigott concur; Judge Rivera taking no part.

Order reversed and a new trial ordered.

       Another camera might also have recorded images of the interaction between defendant and Schliff, but the record on this is not clear. Our decision does not turn on whether any video of the Schliff incident ever existed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [988 NE2d 502, 965 NYS2d 767]
    In the Matter of Deborah Sagal-Cotler, Appellant, v Board of Education of the City School District of the City of New York et al., Respondents. In the Matter of Josephine Thomas, Appellant, v New York City Department of Education et al., Respondents.
    Argued March 20, 2013;
    decided April 25, 2013

      POINTS OF COUNSEL

      Office of General Counsel, New York State United Teachers, New York City (Ariana A. Gambella and Richard E. Casagrande of counsel), for appellant in the first above-entitled action.
    Education Law § 3028 controls respondents’ duty to provide appellant legal representation in the civil action because this statute specifically governs legal actions arising out of disciplinary action taken against a pupil. (Blood v Board of Educ. of City of N.Y., 121 AD2d 128; Matter of Cutler v Poughkeepsie City School Dist., 73 AD2d 967; Riviello v Waldron, 47 NY2d 297; Matter of Inglis v Dundee Cent. School Dist. Bd. of Educ., 180 Misc 2d 156; Matter of Board of Mgrs. of Park Place Condominium v Town of Ramapo, 247 AD2d 537; Iazzetti v City of New York, 94 NY2d 183; Matter of Consolidated Edison Co. of N.Y. v Department of Envtl. Conservation, 71 NY2d 186; Alweis v Evans, 69 NY2d 199; Ricca v Board of Educ. of City School Dist. of City of N.Y., 47 NY2d 385; Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662.)

      Lichten & Bright, P.C., New York City (Stuart L. Lichten of counsel), for appellant in the second above-entitled action.
    Josephine Thomas is accused of acts arising out of discipline, and is therefore entitled to an attorney provided by the City of New York. (Timmerman v Board of Educ. of the City School Dist. of the City of N.Y., 50 AD3d 592; Matter of Cutler v Poughkeepsie City School Dist., 73 AD2d 967; Riviello v Waldron, 47 NY2d 297; Matter of Board of Mgrs. of Park Place Condominium v Town of Ramapo, 247 AD2d 537; Joseph v City of Buffalo, 83 NY2d 141; Matter of Williams v City of New York, 64 NY2d 800; Kosiba v City of Syracuse, 287 NY 283; Lundberg v State of New York, 25 NY2d 467; Perez v City of New York, 79 AD3d 835; Jones v Weigand, 134 App Div 644.)

      Michael A. Cardozo, Corporation Counsel, New York City (Paul T. Rephen and Leonard Koerner of counsel), for respondents in the first and second above-entitled actions.
    In view of the prohibition against corporal punishment contained in the Regulations of the State Board of Regents and the Rules of the Chancellor of the City Department of Education, it was not arbitrary or capricious to deny legal representation to an employee who had engaged in corporal punishment and was subsequently sued by the victim for damages. (Matter of Williams v City of New York, 64 NY2d 800; Perez v City of New York, 43 AD3d 712; Blood v Board of Educ. of City of N.Y., 121 AD2d 128; Timmerman v Board of Educ. of City School Dist. of City of N.Y., 50 AD3d 592; Matter of Inglis v Dundee Cent. School Dist. Bd. of Educ., 180 Misc 2d 156; Matter of Dutchess County Dept. of Social Servs. v Day, 96 NY2d 149; Farrington v Pinckney, 1 NY2d 74; Matter of Board of Mgrs. of Park Place Condominium v Town of Ramapo, 247 AD2d 537.)
   OPINION OF THE COURT

Smith, J.

We hold that employees of the New York City Department of Education who are sued for using corporal punishment are entitled to a defense provided by the City, even though the employees’ conduct violated a state regulation.

Both petitioners are paraprofessionals employed in the New York City schools, and are defendants in civil suits brought by students who allege that petitioners hit them. Petitioner in Sagal-Cotler admits that she slapped a student in the face after he refused three times to go with her to the cafeteria. Petitioner in Thomas allegedly hit a student on the head when the child did not do his work properly; she denied the allegation, but her principal found the charge to be substantiated, and that finding is not challenged here. Petitioners do not dispute that the actions they were found to have committed violated a rule of the Board of Regents, 8 NYCRR 19.5 (a), which prohibits corporal punishment.

Both petitioners asked the City of New York to defend the lawsuits for them, and the City refused in both cases. Petitioners brought these proceedings to annul the City’s determinations. In Sagal-Cotler, Supreme Court granted the relief sought, but the Appellate Division reversed and dismissed the proceeding (Matter of Sagal-Cotler v Board of Educ. of the City School Dist. of the City of N.Y., 96 AD3d 409 [1st Dept 2012]). In Thomas, Supreme Court dismissed the proceeding (Matter of Thomas v New York City Dept. of Educ., 33 Misc 3d 629 [Sup Ct, NY County 2011]), and the Appellate Division affirmed (96 AD3d 401 [1st Dept 2012]). Two Justices dissented in each case, and petitioners appeal to us as of right pursuant to CPLR 5601 (a). We now reverse.

Petitioners’ claim that they are entitled to a defense rests upon Education Law § 3028, which says:

“Notwithstanding any inconsistent provision of any general, special or local law, or the limitations contained in the provisions of any city charter, each board of education, trustee or trustees in the state shall provide an attorney or attorneys for, and pay such attorney’s fees and expenses necessarily incurred in the defense of a teacher, member of a supervisory or administrative staff or employee . . . in any civil or ciminal [sic] action or proceeding arising out of disciplinary action taken against any pupil of the district while in the discharge of his duties within the scope of his employment(Emphasis added.)

Section 3028, enacted in 1960, controls these cases. It is true that later-enacted legislation applicable to employees of the New York City Department of Education entitles such employees to a defense only where their actions were “not in violation of any rule or regulation of [their] agency” (General Municipal Law § 50-k [2]; see Education Law § 2560). Petitioners, all parties agree, have no rights under section 50-k (2), which was enacted in 1979. However, General Municipal Law § 50-k (9) says that section 50-k “shall not be construed in any way to impair, alter, limit, modify, or abrogate or restrict. . . any right to defense ... in accordance with, or by reason of, any other provision of state . . . law.” Thus petitioners’ rights under section 3028 are unaffected by section 50-k (2).

The decisive issue is whether the actions that resulted in the students’ lawsuits against petitioners were taken “while in the discharge of [their] duties within the scope of [their] employment,” as section 3028 requires. The City does not dispute that petitioners were acting within the scope of their employment. It is well-established that an act is within the scope of employment if it “was done while the servant was doing his master’s work, no matter how irregularly, or with what disregard of instructions” (Riviello v Waldron, 47 NY2d 297, 302 [1979] [internal quotation marks and citations omitted]). But the City says that the statutory words “discharge of . . . duties” have a more restrictive meaning, and that an employee who is violating her employer’s regulations cannot be acting in the “discharge of [her] duties.” The City points out that, when section 3028 was enacted in 1960, corporal punishment was permissible in much of the state (though it had already been prohibited in New York City), and argues that the statute was intended to benefit only employees whose conduct was within the rules.

We reject the City’s argument. “Scope of employment,” “discharge of duties” and similar phrases have long been regarded as interchangeable. Thus in Joseph v City of Buffalo (83 NY2d 141, 145 [1994]), we considered whether a police officer was acting “in the performance of his duties and within the scope of his employment” within the meaning of General Municipal Law § 50-j; we made no distinction between the two phrases. In Matter of Williams v City of New York (64 NY2d 800, 802 [1985]) we stated a single “issue”: “whether petitioner’s acts were committed within the scope of his public employment and the discharge of his duties.” And in Lundberg v State of New York (25 NY2d 467, 470 [1969]), we observed: “[a]n employee acts in the scope of his employment when he is doing something in furtherance of the duties he owes to his employer and where the employer is, or could be, exercising some control. . . over the employee’s activities.”

Thus we do not read the statutory words “discharge of . . . duties” to restrict the right to a defense to cases where an employee acted in the proper and lawful discharge of his or her duties. Rather, we conclude that the authors of Education Law § 3028 intended to provide a defense even where an employee’s use of corporal punishment violated regulations. Section 3028 requires the City to provide an attorney not just in civil, but also in criminal cases—suggesting that the legislature wanted even employees who engaged in highly questionable conduct to be defended at public expense. If the 1960 legislature meant to exclude cases in which corporal punishment was forbidden by regulation—as it was in New York City when section 3028 was enacted—it could have done so explicitly. Indeed, it could have said what the 1979 legislature said in General Municipal Law § 50-k (2): that there is no duty to provide a defense to an employee who has acted “in violation of any rule or regulation of his agency.” Section 3028 contains no such language.

Accordingly, in each case, the order of the Appellate Division should be reversed, with costs, the challenged determination annulled and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

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

In each case: Order reversed, with costs, the challenged determination annulled, and the matter remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein.


author: Per Curiam.

text:
    [988 NE2d 509, 965 NYS2d 773]
    In the Matter of Bryan R. Hedges, a Judge of the Family Court, Onondaga County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued March 19, 2013;
    decided April 25, 2013

      POINTS OF COUNSEL

      Robert F. Julian, Utica, for petitioner.
    I. The determination by the State Commission on Judicial Conduct that petitioner should be removed from office is not supported by the evidence. (Matter of Benjamin, 77 NY2d 296; Mishkin v Roreck, 202 Misc 653; Partyka v Attorney Gen. of U.S., 417 F3d 408.) II. The procedures of the State Commission on Judicial Conduct violate due process, the hearing was prejudicially conducted, and the Commission was adversely impacted by the violations and prejudice. (Matter of Daley v Board of Estimate of City of N.Y., 186 Misc 905; Matter of Gelfand, 70 NY2d 211; Cotilletta v Tepedino, 151 Misc 2d 660; Matter of Doe v State Commn. on Jud. Conduct, 137 Misc 2d 268; Toussie v United States, 397 US 112; Matter of Kelemen v Coughlin, 100 AD2d 732; Matter of Murray v Murphy, 24 NY2d 150; Mathews v Eldridge, 424 US 319; Groyned v City of Rockford, 408 US 104; Withrow v Larkin, 421 US 35.) III. The victim’s most recent version of events of 1972 is incredible and was properly not considered by the State Commission on Judicial Conduct in the determination.

      Robert H. Tembeckjian, Albany (Edward Lindner, John J. Postel, Mary C. Farrington and David M. Duguay of counsel), for respondent.
    I. Petitioner committed an abhorrent act that is prejudicial to the administration of justice, reflects adversely on his fitness for judicial office and warrants his removal. (Matter of Quinn v State Commn. on Jud. Conduct, 54 NY2d 386; Matter of Tamsen, 100 NY2d 19; Matter of Benjamin, 77 NY2d 296; People v Rousseau, 245 AD2d 915; Allstate Ins. Co. v Mugavero, 79 NY2d 153; Laurie Marie M. v Jeffrey T.M., 159 AD2d 52; Matter of Steinberg, 51 NY2d 74; Matter of Shilling, 51 NY2d 397; Matter of Douglas v New York City Bd./Dept. of Educ., 87 AD3d 856; Matter of Tenenbaum, 61 AD3d 162.) II. The State Commission on Judicial Conduct’s determination does not rely on uncharged allegations. The formal written complaint provided petitioner with reasonably specific notice of the charge against him sufficient to allow for preparation of a defense. (Matter of Marshall, 8 NY3d 741; Matter of Gelfand, 70 NY2d 211; Matter of Block v Ambach, 73 NY2d 323; Matter of D’Ambrosio v Department of Health of State of N.Y., 4 NY3d 133; Matter of Steckmeyer v State Bd. for Professional Med. Conduct, 295 AD2d 815; Matter of Board of Educ. of Monticello Cent. School Dist. v Commissioner of Educ., 91 NY2d 133; Matter of Holtzman, 78 NY2d 184; Allstate Ins. Co. v Mugavero, 79 NY2d 153; Matter of St. Lucia v Novello, 284 AD2d 591; Matter

      of Giffone v DeBuono, 263 AD2d 713.) III. The State Commission on Judicial Conduct’s procedures do not violate due process. (Matter of Seiffert, 65 NY2d 278; Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179; Matter of Mason [State Commn. on Jud. Conduct], 100 NY2d 56; Matter of Steinberg, 51 NY2d 74; Matter of Sims [State Commn. on Jud. Conduct], 61 NY2d 349; Matter of Spargo v New York State Commn. on Jud. Conduct, 23 AD3d 808; Matter of Children of Bedford v Petromelis, 77 NY2d 713, 502 US 1025; Town of Oyster Bay v Kirkland, 81 AD3d 812; Matter of Miller v Schwartz, 72 NY2d 869; Matter of Pfau v Public Empl. Relations Bd., 69 AD3d 1080.) IV The mere passage of time does not deprive the State Commission on Judicial Conduct of jurisdiction and did not deprive petitioner of the opportunity to present a defense. (Matter of King v Cuomo, 81 NY2d 247; Matter of Sarisohn, 26 AD2d 388; New York Pub. Interest Research Group v Steingut, 40 NY2d 250; Matter of Tamsen, 100 NY2d 19; Matter of Boulanger, 61 NY2d 89; Matter of O’Keefe v Murphy, 38 NY2d 563; Matter of Rojas v Sobol, 167 AD2d 707; Matter of Louis Harris & Assoc. v deLeon, 84 NY2d 698; Matter of Diaz Chem. Corp. v New York State Div. of Human Rights, 91 NY2d 932; Matter of Pearl v New York State Board for Professional Medical Conduct, 295 AD2d 764.) V Removal is the only appropriate sanction, notwithstanding petitioner’s resignation from judicial office. (Matter of Backal, 87 NY2d 1; Matter of Quinn v State Commn. on Jud. Conduct, 54 NY2d 386; Matter of Flynn v State Ethics Commn., Dept. of State, State of N.Y., 87 NY2d 199.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, a former Judge of Family Court, Onondaga County, seeks review of a determination of the State Commission on Judicial Conduct, which sustained one charge of judicial misconduct against him and determined that he should be removed from office (see NY Const, art VI, § 22; Judiciary Law § 44 [1]).

Petitioner served as Family Court Judge from January 1, 1985 until he resigned on April 5, 2012. The catalyst for his resignation was the allegation that, in 1972, when petitioner was 25 years old, he had engaged in sexual misconduct involving a five-year-old girl. While the exact events are subject to dispute, petitioner has admitted to sexual contact with the child, which he has described as indefensible.

The complaint consisted of a single charge, alleging that petitioner should be disciplined for violating sections 100.1 and 100.2 (A) of the Rules Governing Judicial Conduct (22 NYCRR 100.1, 100.2 [A]). The Commission sustained the charge and ordered petitioner’s removal, finding that his admissions, by themselves, without consideration of the complainant’s testimony, provided a sufficient basis for the determination. Two Commission members dissented in part on the ground that petitioner removed himself from his judgeship by resigning, and that post-resignation removal proceedings “served no purpose” in this case.

We measure the necessity for removal “with due regard to the fact that Judges must be held to a higher standard of conduct than the public at large” (Matter of Going, 97 NY2d 121, 127 [2001]). Because “relatively slight improprieties subject the judiciary as a whole to public criticism and rebuke,” it is essential that we consider “the effect of the Judge’s conduct on and off the Bench upon public confidence in his [or her] character and judicial temperament” (Matter of Aldrich v State Commn. on Jud. Conduct, 58 NY2d 279, 283 [1983]).

Upon our independent review of the record, we conclude that petitioner engaged in misconduct warranting removal from office by committing an act of moral turpitude involving a child. We agree with the Commission that petitioner’s admissions, by themselves, are sufficient to warrant the finding of judicial misconduct. The admitted conduct undermined the integrity and impartiality of the judiciary and therefore rendered petitioner unfit for judicial office.

It is troubling that the petition is based solely on conduct that occurred 40 years ago—13 years before petitioner was elevated to the bench. Nevertheless, the misconduct alleged is grave by any standard. Further, the significant danger of fading memories is tempered somewhat under the circumstances of this particular case, where petitioner admits that conduct of this nature in fact occurred.

Petitioner’s remaining arguments are without merit.

Accordingly, the determined sanction of removal should be accepted without costs, and petitioner should be removed from the office of Judge of the Family Court, Onondaga County.

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

Determined sanction accepted, without costs, and Bryan R. Hedges removed from the office of Judge of the Family Court, Onondaga County.

       Judiciary Law § 47 provides the Commission and this Court with continued jurisdiction over a judge who resigns from office to prevent the judge from circumventing removal and then seeking judicial office in the future (see Matter of Backal, 87 NY2d 1, 7 [1995]).


text:
    [979 NE2d 1178, 955 NYS2d 851]
    Douglas Elliman LLC, Doing Business as Prudential Douglas Elliman Real Estate, Respondent, v Franklin Tretter et al., Appellants.
    Argued October 9, 2012;
    decided November 19, 2012

      APPEARANCES OF COUNSEL

      Gallet Dreyer & Berkey, LLP, New York City (Randy J. Heller of counsel), for appellants.

      Cole Hansen Chester LLP, New York City (Michael S. Cole of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question not answered upon the ground it is unnecessary.

In July 2008, Franklin and Sheila Tretter (collectively, the sellers) retained Prudential Douglas Elliman Real Estate to sell their cooperative apartment at 785 Park Avenue in Manhattan. Barbara Lockwood served as the broker for the exclusive listing. The brokerage agreement contained an asking price of $1.65 million and provided that the sellers would pay Douglas Elliman a 6% commission from the proceeds of the sale. Lockwood arranged for a photo shoot and preparation of a floor plan, and began to show the apartment at open houses and by appointment. In November 2008, a bidder made an oral offer of $1.5 million, which was acceptable to the sellers.

Meanwhile, Lockwood met Taurie Zeitzer at an open house in the sellers’ apartment. Throughout November, while the initial bidder was providing information necessary to secure the cooperative board’s approval, Lockwood communicated with Zeitzer and her husband (collectively, the buyers) via email, offering to show them additional apartments, including another apartment at 785 Park Avenue. Lockwood showed the buyers five other properties; one was listed with Douglas Elliman, the other four were listed with other agencies. Lockwood also discussed 12 additional apartments with Zeitzer.

The sellers’ deal with the initial bidder fell through later in November. Within a week afterwards, Lockwood again showed the sellers’ apartment to the buyers. Thereafter, the buyers made an offer of $1.4 million for the apartment—i.e., $100,000 less than the initial bidder’s offer. In December 2008, Lockwood sent the sellers the deal sheet, which listed a $70,000 brokerage commission (5% of $1.4 million), and Douglas Elliman thereafter confirmed in writing its agreement to reduce its commission from 6% to 5% if the sellers sold their apartment to the buyers. The agreement further stated that the 5% commission would be due and payable at closing.

In December 2008, the sellers entered into a contract with the buyers to sell their apartment to them for $1.4 million. The contract listed “Prudential Douglas Elliman (Barbara Lockwood)” as the broker, provided a purchase price of $1.4 million, and stated that the sellers were solely responsible for the broker’s commission. In February 2009, Douglas Elliman sent a letter to the buyers’ attorney, asking that the commission either be paid to it or held in escrow pending the resolution of any dispute with the sellers. The closing took place in March 2009; Lockwood did not attend. The buyers paid $1.4 million, $70,000 of which was held in escrow.

In April 2009, Douglas Elliman commenced this action against the sellers to recover its $70,000 commission. In their answer, the sellers asserted that Douglas Elliman was not entitled to a commission because Lockwood breached her fiduciary duties to them by acting as a dual agent to the buyers. The sellers moved for summary judgment to dismiss the complaint; they submitted affidavits by the sellers and email exchanges between Lockwood and Zeitzer regarding listings for other apartments. Douglas Elliman cross-moved for summary judgment on its claim for a commission and, in support of its motion, relied on the parties’ brokerage agreement; the executed contract for sale of the sellers’ apartment; Douglas Elliman’s agreement with the sellers to reduce its commission after the initial offer collapsed; and deposition testimony and an affidavit detailing relevant facts.

Supreme Court denied both motions, concluding that there were triable issues of fact as to whether Lockwood was “acting in a dual agency relationship as agent for both . . . sellers and . . . Zeitzer.” Both parties appealed. The Appellate Division, with one Justice dissenting, modified the order by granting Douglas Elliman’s cross motion for summary judgment to recover its commission, and otherwise affirmed (84 AD3d 446 [1st Dept 2011]). The Court concluded that the evidence demonstrated “as a matter of law that Ms. Lockwood did not act as a dual agent” with the concomitant “duty to disclose her divided loyalties and obtain the parties’ consent thereto” (id. at 448-449) because

“Ms. Lockwood had a signed exclusive agency agreement with the [sellers]. She had no similar agreement with [the buyers], and she received no remuneration from them. Ms. Lockwood’s actions indicate that she wanted this transaction to close, and Douglas Elliman’s submissions support the conclusion that she ultimately obtained permission to reduce her own commission to bring the parties to an agreement. The negotiated contract was signed by both [parties], it listed Ms. Lockwood as the agent, and it explicitly stated that the sellers were exclusively responsible for her fee” (id. at 449).

The Court observed that, “absent an agreement with the [sellers] to the contrary, Ms. Lockwood owed them no duty to refrain from” showing the buyers “a number of other apartments” without the sellers’ permission or knowledge (id., citing Sonnenschein v Douglas Elliman-Gibbons & Ives, 96 NY2d 369, 375-376 [2001]). Further,

“[i]t is uncontested that Lockwood found buyers who were ready, willing and able to purchase their apartment, who were capable of doing so (with the assistance of a guarantor), and whose offer matured into a signed contract, cooperative board approval, and a closing transferring ownership of the apartment to them. Thus, Douglas Elliman is entitled to the reduced 5% commission negotiated by the parties to this transaction in a letter agreement as a matter of law” (id. at 450).

The dissenting Justice agreed with Supreme Court that triable issues of fact existed as to whether Lockwood was a dual agent (id. at 451 [Manzanet-Daniels, J., dissenting]). The sellers moved for reargument or for leave to appeal. The same panel denied the motion for reargument, granted the motion for leave to appeal and certified the following question: “Was the order of this Court, which modified the order of the Supreme Court, properly made?” We now affirm.

The parties here did not—although free to do so—“specifically agree” that Douglas Elliman was required to “decline a prospective purchaser’s request to see another property” (Sonnenschein, 96 NY2d at 376). As a result, Lockwood had “no duty to refrain” from offering other properties to the buyers (id. at 375). A contrary holding would “unreasonably restrain” brokers from cultivating potential clients at open houses for their principals (id. at 376). The sellers would limit Sonnenschein to its facts—i.e., they argue that because the parties here entered into an “exclusive seller’s agreement,” which was not the case in Sonnenschein, Lockwood was not permitted to show the buyers any other apartments, or, alternatively, was only allowed to show them other properties listed for sale by Douglas Elliman, not other brokers. But such a narrow interpretation runs counter to the thrust of the decision, which sought to formulate a rule “consistent with the nature and fundamental requirements of the real estate marketplace in New York” (id.; see also Rivkin v Century 21 Teran Realty LLC, 10 NY3d 344, 356-357 [2008] [recognizing the importance of “practical considerations” when adopting rules governing relationships between buyers and their real estate agents]).

In sum, Douglas Elliman has established its entitlement to the commission as a matter of law. The statements and conduct cited by the sellers do not raise a material issue of fact as to whether Lockwood was acting as a dual agent in the transaction. Finally, we have reviewed the sellers’ claim that Douglas Elliman and Lockwood breached an implied covenant of good faith and fair dealing, which we consider to be without merit.

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

Order affirmed, etc.

       Douglas Elliman’s cross motion for summary judgment encompassed both liability and damages. Thus, the Appellate Division’s order granting that motion is final, and certification was unnecessary.


text:
    [979 NE2d 1192, 955 NYS2d 865]
    The People of the State of New York, Respondent, v Tobias Boyland, Appellant.
    Decided November 19, 2012

      APPEARANCES OF COUNSEL

      David J. Seeger, Buffalo, and Leigh E. Anderson, for appellant.

      Frank A. Sedita, III, District Attorney, Buffalo (Donna A. Milling of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed. Whether a protective sweep is justified under particular circumstances involves a mixed question of law and fact. Where, as here, there exists record support for the Appellate Division’s resolution of this question, the issue is beyond this Court’s further review. Defendant’s remaining claims are without merit.

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


author: Smith, J. (dissenting).

text:
    [980 NE2d 945, 957 NYS2d 280]
    Jade Realty LLC, Respondent, v Citigroup Commercial Mortgage Trust 2005-EMG et al., Appellants, et al., Defendant.
    Argued October 9, 2012;
    decided November 19, 2012

      APPEARANCES OF COUNSEL

      Zeichner Ellman & Krause LLP, New York City (Jantra Van Roy and Michael E. Sims of counsel), for appellants.

      Greenberg Freeman LLP, New York City (Michael A. Freeman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

On September 17, 2003, Jade Realty LLC, the owner and operator of a shopping center in Hartsdede, New York, closed on a mortgage loan with Emigrant Securities Corp. in the principal amount of $4 million as part of a refinancing of an earlier loan. The loan had a 10-year term with a maturity date of October 1, 2013 and had an interest rate of 5.48% per year (Note Rate).

Although the promissory note permitted Jade to voluntarily prepay the note before its maturity date “[p]rovided an Event of Default and an acceleration of the Maturity Date ha[d] not occurred and [was] continuing,” it also called for Jade to pay a “yield maintenance amount” that varied as the note matured. As relevant here, if the note was paid within the first six loan years, the “yield maintenance amount” was to be computed “by taking the positive difference (if any) between the Note Rate . . . minus the current yield, on the actual date of default under the loan ... of U.S. Treasury Securities having the closest longer maturity to the remaining total term of this Note,” with such calculation being “made as of the actual date of default under the loan” (emphasis supplied). The note does not define the word “default,” although the mortgage agreement contains 15 “Events of Default,” none of which includes voluntary prepayment.

In 2005, Jade’s loan was sold to Citigroup Commercial Mortgage Trust 2005-EMG, with LaSalle Bank National Association serving as trustee (collectively, Citigroup defendants). During the fourth year of the loan, Jade notified the loan servicer, Capmark Finance, Inc., that Jade intended to refinance the loan with another bank and that, because it had not defaulted on its loan, Jade did not owe a yield maintenance amount. Capmark disagreed and demanded Jade pay yield maintenance in the amount of $146,104.56.

Jade paid the amount under protest with a reservation of rights and, as relevant here, commenced this action against Citigroup defendants for breach of contract when Capmark refused to issue Jade a refund. After discovery, the parties brought their respective motions for summary judgment. Supreme Court granted the Citigroup defendants’ motion to dismiss the complaint, holding that it was “absurd and illogical” for Jade to take the position that, because it had not “defaulted,” it owed no yield maintenance amount (2009 NY Slip Op 32926[U], *10 [Sup Ct, NY County 2009]). Relying on this Court’s holding in Matter of Wallace v 600 Partners Co. (86 NY2d 543 [1995]), Supreme Court held that it was within the court’s purview to “transpose, reject or supply words to make the meaning of the . . . Note more clear so as to carry out the intention of the contract,” and it did so by adding the words “prepayment or” before the word “default” in the yield maintenance amount formula (2009 NY Slip Op 32926[U], *10, 12 [2009]).

The Appellate Division reversed and granted Jade’s cross motion for summary judgment on its breach of contract claim, holding that Supreme Court erred in rejecting Jade’s argument that no yield maintenance amount was due because “[w]hile [Jade’s] interpretation of the note could possibly lead to the prepayment premium being lower in the early years rather than the later years of the prepayment period, that is the way Emigrant’s counsel drafted the note” (83 AD3d 567, 568 [1st Dept 2011]). It acknowledged that Jade’s interpretation of the note was “technical and . . . apparently not what [Emigrant] intended,” but concluded that “it is not a court’s function to imply a term to save a defendant from the consequences of an agreement that it drafted” (id. [citation omitted]).

Citigroup defendants are not claiming that they are entitled to reformation. Absent such a claim, “courts may as a matter of interpretation carry out the intention of a contract by transposing, rejecting, or supplying words to make the meaning of the contract more clear,” but this approach is suitable “only in those limited instances where some absurdity has been identified or the contract would otherwise be unenforceable either in whole or in part” (Matter of Wallace, 86 NY2d at 547-548 [citations omitted]). We reject the Citigroup defendants’ argument that such an approach is warranted here.

Application of the note’s literal language relative to voluntary prepayment and the yield maintenance amount does not result in either absurdity or an unenforceable agreement. To be sure, Jade’s interpretation of the note results in a potentially lower prepayment premium in the first six years, instead of the potentially lower prepayment premiums in the seventh through tenth years. While these terms might be “novel or unconventional,” that, by itself, does not render the result here absurd (Matter of Wallace, 86 NY2d at 548). Citigroup received 5.48% interest for the time it held the loan and it did not lose its principal, so it could hardly be said that there is economic absurdity, as the Citigroup defendants charge (cf. Reape v New York News, 122 AD2d 29 [2d Dept 1986], lv denied 68 NY2d 610 [1986]). The note, as written, is enforceable according to its terms. A reasonable interpretation of the note is that, there having been no default on Jade’s part and acceleration of the maturity date by Citigroup, there could be no “positive difference (if any)” between the Note Rate and the relevant “current yield,” such that Jade owed no yield maintenance under the note.

Smith, J. (dissenting).

The result in this case is indisputably contrary to what the parties intended. They did not go to all the trouble of providing for voluntary prepayment conditioned on payment of a “yield maintenance amount” on the understanding that no yield maintenance amount could be calculated. Indeed, Jade does not say that the omission of language permitting the amount to be calculated in a non-default situation was anything but a drafting error. Jade’s managing member, a sophisticated real estate lawyer, pointed out the anomaly to his brother and coinvestor in an email saying: “There is a drafting problem with the yield maintenance provision, which applies only where there is a default.” In proposing to his brother the argument that Jade has now successfully made to this Court, the lawyer described it as “[c]ute but textually accurate.”

The majority accepts this argument—that no yield maintenance amount is payable—because it finds that to accept it does not lead to “absurdity” (majority mem at 884). The majority does not say what it means by “absurdity.” It is, beyond question, absurd to think that this result is consistent with what the parties intended: If that is not what absurdity means, what does it mean? The majority suggests that it will insist on “economic absurdity”—which, the majority says, is not present here because Citigroup receives interest on the loan and does not lose its principal (majority mem at 884). But why that justifies frustrating the parties’ intention is unexplained.

Perhaps the majority’s literalism could be defended if it were following a strict, consistent rule that all agreements will be enforced exactly as they are written. But the majority endorses no such rule, and it has never been the law of New York. On the contrary, cases involving clear drafting errors hold that “[t]o carry out the intention of a contract, words may be transposed, rejected, or supplied, to make its meaning more clear” (Castellano v State of New York, 43 NY2d 909, 911 [1978]; see also Nash v Kornblum, 12 NY2d 42, 47 [1962]; Bintz v City of Hornell, 268 App Div 742, 748 [4th Dept 1945]; Castelli v Burns, 156 App Div 200, 203 [1st Dept 1913]; Potthoff v Safety Armorite Conduit Co., 143 App Div 161, 163 [2d Dept 1911]). In each of those cases, the Court departed from the literal words of a contract to avoid an absurd result. The majority does not attempt to explain why the result here is less absurd.

I acknowledge that I could (and probably would, if I had been on the Court) have written a similar dissent in two of our cases, Matter of Wallace v 600 Partners Co. (86 NY2d 543 [1995]) and Reiss v Financial Performance Corp. (97 NY2d 195 [2001]). In each of them, we found that the result indicated by the literal language of an agreement was not absurd, though it seems highly unlikely that the result was the one intended by the parties. This case, however, goes further than either Wallace or Reiss. In those cases, the agreements, read literally, were at least internally consistent, so that it was theoretically possible that the parties meant what they said: in Wallace, that the rent for a renewal term could not be calculated until decades after the term began (see 86 NY2d at 546-548), and in Reiss, that warrants to purchase stock were exercisable without adjustment to reflect a reverse stock split (see 97 NY2d at 198). Here, the agreement is, on its face, at war with itself: The parties expressly provided that a yield maintenance amount would be payable in the event of a voluntary prepayment, then described the calculation of the yield maintenance amount in a way that is not applicable to that contingency.

Nothing except injustice is accomplished by reading the contract as the majority reads it. I therefore dissent.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read and Pigott concur in memorandum; Judge Smith dissents in an opinion.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, etc.

       The “yield maintenance amount” is the prepayment penalty a borrower pays a lender as a condition of prepaying a loan prior to its maturity date.


text:
    In the Matter of Perry Bellamy, Appellant, v New York City Police Department, Respondent.
    Submitted October 29, 2012;
    decided November 19, 2012
   Motion for poor person relief granted.


text:
    Island Park, LLC, Appellant, v State of New York, Respondent.
    Submitted October 29, 2012;
    decided November 19, 2012
   Motion by New York Farm Bureau for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Akiva Daniel Abraham, Appellant.
    Submitted November 5, 2012;
    decided November 19, 2012
   Motion for assignment of counsel granted and Jonathan S. Fishbein, Esq., 35 Fairview Ave., Delmar, New York 12054 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Daniel Boyer, Appellant.
    Submitted October 29, 2012;
    decided November 19, 2012
   Motion for assignment of counsel granted and Mark C. Davison, Esq., care of Davison Law Office, PLLC, 61 North Main Street, Suite C, Canandaigua, New York 14424 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Andre Collier, Appellant.
    Submitted October 22, 2012;
    decided November 19, 2012
   Motion for assignment of counsel granted and Claude Castro, Esq., 355 Lexington Ave., Suite 1400, New York, NY 10017 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Luis Guaman, Appellant.
    Submitted October 29, 2012;
    decided November 19, 2012
   Motion for assignment of counsel granted and Steven Banks, Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Felix Hernandez, Appellant.
    Submitted November 13, 2012;
    decided November 19, 2012
   Motion for assignment of counsel granted and Steven Banks, Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Juan Jose Peque, Also Known as Juan Jose Peque Sicajan, Appellant.
    Submitted November 5, 2012;
    decided November 19, 2012
   Motion for assignment of counsel granted and Melissa A. Latino, Esq., 45 Hudson Ave., PO Box 1776, Albany, New York 12207 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Lance J. Reed, Appellant.
    Submitted November 13, 2012;
    decided November 19, 2012
   Motion for assignment of counsel granted and Timothy E Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jose Rodriguez, Appellant.
    Submitted October 29, 2012;
    decided November 19, 2012
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Carlos Santiago, Jr., Appellant.
    Submitted November 13, 2012;
    decided November 19, 2012
   Motion for assignment of counsel granted and Timothy P Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Denise M. Tallman, Appellant.
    Submitted October 29, 2012;
    decided November 19, 2012
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Cavell Craig Tyrell, Appellant.
    Submitted November 5, 2012;
    decided November 19, 2012
   Motions for assignment of counsel granted and Steven Banks, Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Carl D. Wells, Appellant.
    Submitted November 5, 2012;
    decided November 19, 2012
   Motion for assignment of counsel granted and Steven Banks, Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    Timothy A. Roulan, Appellant, v County of Onondaga et al., Respondents.
    Submitted November 5, 2012;
    decided November 19, 2012
   Motion by New York State Defenders Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    [980 NE2d 523, 956 NYS2d 474]
    The People of the State of New York, Appellant, v Vincent Torres, Respondent. The People of the State of New York, Appellant, v Vincent Torres, Respondent.
    (Appeal No. 1.)
    (Appeal No. 2.)
    Decided November 20, 2012

      APPEARANCES OF COUNSEL

      William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), for appellant in the first and second above-entitled actions.

      J. Scott Porter, Seneca Falls, for respondent in the first and second above-entitled actions.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed.

Defendant adequately preserved the argument that the exclusion of his wife from the courtroom violated his right to a public trial (see People v Alvarez, 20 NY3d 75, 81 [2012]; see also People v Caban, 14 NY3d 369, 373 [2010]). The closure of the courtroom during jury selection was not trivial (see People v Martin, 16 NY3d 607, 613 [2011]).

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), orders affirmed in a memorandum.


text:
    [980 NE2d 523, 956 NYS2d 475]
    Tina M. Holstein, Respondent, v Community General Hospital of Greater Syracuse, Appellant.
    Argued October 17, 2012;
    decided November 20, 2012
    APPEARANCES OF COUNSEL

      Meiselman, Denlea, Packman, Carton & Eberz, P.C., White Flains (Myra I. Packman of counsel), for appellant.

      D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando, Bradley E. Keem and Elizabeth deV. Moeller of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff Tina Holstein commenced this medical malpractice action seeking damages for injuries she sustained based on the alleged negligence of an employee of defendant Community General Hospital of Greater Syracuse (the Hospital). Following trial, the jury returned a verdict on liability, by a vote of five to one, in favor of Holstein and awarded approximately $1.7 million in damages. After the verdict was announced, the Hospital requested that the jury be polled. In response, the court remarked: “Jury be polled? They have signed. They each have individually signed.” The Hospital’s counsel stated: “Okay. All right. Thank you” and the jury was dismissed. Two weeks later, the Hospital moved to set aside the verdict and requested a new trial. Supreme Court denied the motion and the Appellate Division affirmed Supreme Court’s judgment awarding plaintiff damages (86 AD3d 911 [4th Dept 2011]).

In Duffy v Vogel, we held that a party has an absolute right to poll the jury and a court’s denial of that right mandates reversal and a new trial (12 NY3d 169, 176-177 [2009]). In this case, however, it was not unreasonable for the trial court to conclude that the request had been withdrawn or waived in light of the nature of counsel’s response to the judge’s inquiry.

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

Order affirmed, with costs, in a memorandum.


author: Pigott, J. (dissenting).

text:
    [981 NE2d 248, 957 NYS2d 652]
    Michael Grucci, Appellant, v Christine Grucci, Respondent.
    Argued October 16, 2012;
    decided November 20, 2012

      APPEARANCES OF COUNSEL

      Arthur V. Graseck, Jr., Oakdale, for appellant.

      Sinnreich, Kosakoff & Messina LLP, Central Islip (Timothy Hill and Vincent J. Messina, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff Michael Grucci (Michael) and defendant Christine Grucci (Christine) were married in 1988 and had two children. In 1998, Christine sued Michael for divorce. A few months later, Michael was charged with harassing Christine, and the District Court issued an order of protection directing him to stay away from her. In January 2000, Michael was accused of violating the order. The matter was presented to a grand jury, which returned an indictment charging Michael with two counts of first-degree criminal contempt for placing Christine in fear of death or injury by telephone, and harassing her by repeated telephone calls with no purpose of legitimate communication (Penal Law § 215.51 [b] [iii], [iv], respectively). After a bench trial in August 2001, County Court acquitted Michael. The court concluded that Christine’s testimony was not credible because of “discrepancies]” in the way she described Michael’s alleged threat to the police, the grand jury and at trial. In March 2002, Michael brought this civil action against Christine to recover damages for malicious prosecution.

At trial in December 2008, Michael sought, through the testimony of his brother, Anthony Grucci (Anthony), to play for the jury an audiotape of a telephone conversation in which Christine purportedly made clear to Anthony, at some point after she went to the police, that she was not afraid of Michael. Christine’s attorney successfully objected to admission of the audiotape, and to Anthony’s testimony about what Christine said during the telephone conversation. After the close of evidence, the judge charged the jury as to the elements required to establish malicious prosecution, which are that the defendant commenced or continued a criminal proceeding against the plaintiff; that the prosecution terminated in plaintiffs favor; the absence of probable cause; and actual malice (Smith-Hunter v Harvey, 95 NY2d 191, 195 [2000]). The court instructed the jurors that “[t]he first question for you to decide is whether [Christine] initiated the criminal prosecution” and “[i]f you find [that Christine was] not responsible for [initiating] the prosecution, you will find for [her] and you will proceed no further” (emphasis added); and additionally, if Christine “directed the District Attorney to prosecute or gave the District Attorney information that [she] knew to be false, [she was] responsible for prosecution.” The jury concluded that Christine did not initiate the prosecution, and, as instructed, did not consider the other elements of malicious prosecution. Accordingly, the trial judge entered judgment dismissing the complaint.

Upon Michael’s appeal, the Appellate Division affirmed (81 AD3d 776 [2d Dept 2011]). The Court determined that “because the jury found that [Christine] did not initiate the underlying criminal proceeding . . . and the excluded evidence was not relevant to that issue, but only to the issue of [her] malice, [Michael] was not prejudiced by any error the trial court may have committed” in making the complained-of rulings (id. at 777). We subsequently granted Michael permission to appeal (17 NY3d 704 [2011]), and now affirm.

Michael claims that the trial judge made critical evidentiary errors warranting reversal and a new trial; namely, refusing to permit Anthony to authenticate the audiotape of the telephone conversation; excluding from evidence, as inadmissible hearsay, statements that Christine made to Anthony during the telephone conversation, which were supposedly offered only to show her state of mind; denying Michael’s application to have the transcript of the grand jury testimony placed into evidence; and preventing testimony allegedly showing that Christine lied to obtain the order of protection. First, while a party to a taped conversation can identify the speakers, “identity and authenticity are separate facets of the required foundation, both of which must be established” (People v Ely, 68 NY2d 520, 528 [1986]). Here, Michael’s attorney sought to play the audiotape during Anthony’s testimony “as part of [his] presentation of [the telephone] conversation” with Christine that Anthony was recounting. Christine’s attorney objected to the audiotape’s admission on the grounds it was unreliable, “pieced together from a number of things” and “unintelligible”; that no chain of custody had been established; and generally that “no foundation [had been] laid for it at [that] point.” In response, Michael’s attorney offered only to have Anthony identify the voices on the tape and state “whether or not the tape recording [was] fair and accurate.” When the judge asked if the tape had been authenticated, Michael’s attorney responded, “Not yet; this witness will authenticate.” The judge then sustained the objection, and Michael’s attorney stated that he had no further questions for Anthony.

“ The predicate for admission of tape recordings in evidence is clear and convincing proof that the tapes are genuine and that they have not been altered” (id. at 522). Here, there was no attempt to offer proof about who recorded the conversation, how it was recorded (e.g., the equipment used) or the chain of custody during the nearly nine years that elapsed between early 2000, when the conversation allegedly took place, and the trial in late 2008. Given the facts and circumstances of this case, the judge did not abuse his discretion by requiring more than Anthony’s representation that the tape was “fair and accurate” to establish a sufficient “predicate” before playing the tape for the jury.

With respect to Michael’s protests that the trial judge “repeatedly” sustained improper hearsay objections during Anthony’s testimony, he cites only one example: Anthony was asked, essentially, what Christine said on the audiotape. Although Michael argues that Christine’s alleged statements were being offered to prove her state of mind (i.e., malice) rather than for their truth, he wanted Anthony to testify that Christine told him she was not afraid of Michael and that she expressed an alternative motive for going to the police in order to show that Christine lied to the authorities. For this tactic to work, Michael would have to ask the jury to believe that Christine’s alleged, statements to Anthony were, in fact, true. While Christine’s statements were admissible as admissions of a party opponent, Michael never made this argument to the judge. Additionally, we cannot say that omission of this testimony was so crucial with respect to the issue of whether Christine initiated the prosecution as to require a new trial.

Next, in cases in which the grand jury has returned an indictment, there is a presumption of probable cause, and the plaintiff can therefore only succeed on a malicious prosecution claim if he can prove that the indictment was procured by fraud, perjury, suppression of evidence, or other bad-faith conduct (Colon v City of New York, 60 NY2d 78, 82-83 [1983]). While Michael argues that review of the grand jury and criminal trial transcripts by the jury would have strengthened his argument that Christine lied to the grand jury, the trial judge permitted Michael’s attorney to freely use Christine’s prior testimony to impeach her on cross-examination, and allowed him to quote from it during summation. The judge similarly acted within his discretion when he excluded testimony allegedly proving that Christine fabricated the incident that led to the order of protection. Notably, Michael did not dispute these facts when the order was issued.

Michael called the assistant district attorney (ADA) responsible for prosecuting the contempt charges, who testified that a standing policy removed any discretion as to whether to make an arrest when the police determined, after investigation, that an incident of domestic violence had occurred; that the ADA, after consultation with his supervisor, made the decision to present a case to the grand jury and, after indictment, proceed to trial; that “it was never up to a complainant or victim . . . whether or not to go forward” because “the ultimate decision on whether to prosecute a case or not falls on the District Attorney[’s] office”; and that he remembered that Christine was “just a nice believable lady who presented well, with kids, had marital problems, and of the thousands of cases that [he] prosecuted, that’s all [he could] remember [from] 8 years ago.” In short, there was sufficient evidence to support the jury’s verdict that Christine did not initiate the contempt proceeding.

Pigott, J. (dissenting).

The trial court’s rulings concerning the evidence of what defendant told plaintiffs brother amounted to reversible error. Moreover, the error was far from harmless, because the evidence that plaintiff sought to introduce was directly relevant to the question whether defendant was responsible for commencing the underlying criminal proceeding against him. The trial court prevented plaintiff from presenting the most powerful evidence in his case. For that reason, I dissent.

L

A difficult and contentious matrimonial situation devolved into a criminal indictment, resulting in an acquittal that bred a malicious prosecution claim. The evidence shows that plaintiff and defendant, his ex-wife, engaged in an angry telephone conversation, concerning plaintiffs desire to take their children on a vacation during school term. Defendant then accused plaintiff of violating an order of protection issued against him the previous year. She contacted the police, and filed a sworn statement claiming that plaintiff had threatened to “put a hit out on [her].” Plaintiff was then charged with two counts of first-degree criminal contempt (Penal Law § 215.51 [b] [iii], [iv])—for placing defendant in reasonable fear of injury or death by electronic means, and for repeatedly making telephone calls with intent to harass, annoy, threaten or alarm, and no purpose of legitimate communication. Plaintiff was acquitted, following a bench trial, by a court that found defendant’s testimony incredible.

Plaintiff then sued his former wife for malicious prosecution, claiming that she lied to the police, causing him to be prosecuted on baseless charges. The matter proceeded to a jury trial.

To show that defendant’s statement to the police that he had threatened to “put a hit out on [her]” was false, plaintiff offered an audiotape of a conversation between his brother and the defendant that occurred after plaintiff had been arrested. Plaintiff offered to prove that, during the conversation, defendant said, essentially, that she had contacted the police out of frustration, because there was no other way to force plaintiff to get psychiatric treatment, not because she was in fear of injury or death. He also offered to prove that, during the conversation, defendant told plaintiffs brother a “fabricated” story “about some prostitute being killed in Maine,” which defendant invented to harm plaintiffs reputation.

The tape was offered on the following basis. “We would ask this witness [i.e., plaintiffs brother] if he recognized the voices and whether his prior relationship with [defendant] enabled him to identify her voice and whether or not the tape recording is fair and accurate.” The trial court sustained defendant’s objections to admission of the tape and to testimony from plaintiffs brother regarding what defendant had said to him.

This, in my view, was clear error. An audiotape may be authenticated precisely the way that plaintiffs counsel suggested—“by the testimony of a party to the conversation that the tape is unaltered and completely and accurately reproduces the conversation” (Prince, Richardson on Evidence § 4-213 at 150 [Farrell 11th ed], citing People v Ely, 68 NY2d 520, 527-528 [1986]). As stated in a well-established treatise on the law of evidence,

“if a percipient witness overheard the voices as they were recorded, this witness may provide the required authentication foundation by testifying that the sound recording is an accurate record of what the witness did hear. In such a case, no chain of custody is required, since the purpose of proving the chain is to show that the recording is in the same condition as when first recorded” (2 Broun, McCormick on Evidence § 216 [6th ed] [footnotes omitted]; see also Martin, Capra and Rossi, New York Evidence Handbook § 9.8.1 at 907 [2d ed]).

The majority relies on our decision in People v Ely (68 NY2d 520 [1986]). But the holding in that case related! to the authenticity of the tapes, not, as here, simple admissibility upon being identified by one of the participants. Indeed, Ely specifically states the rule the trial court failed to follow here: that “[t]he necessary foundation may be provided in a number of different ways” and that one such “well-recognized” foundation is “[t]estimony of a participant in the conversation that it is a complete and accurate reproduction of the conversation and has not been altered” (id. at 527, citing People v McGee, 49 NY2d 48, 60 [1979], People v Arena, 48 NY2d 944, 945 [1979], United States v Sandoval, 709 F2d 1553, 1555 [DC Cir 1983], and United States v Buzzard, 540 F2d 1383 [10th Cir 1976], cert denied 429 US 1072 [1977]). The majority does not suggest that this is no longer the law. Morever, we noted that chain of custody is “not a requirement as to tape recordings” (Ely, 68 NY2d at 527-528; see also McGee, 49 NY2d at 60).

Our decision in Ely was supported by an earlier precedent, People v McGee (49 NY2d 48 [1979]), where we held that, with respect to a tape recording, “[a] foundation may be established by a participant to the conversation who testifies that the conversation has been accurately and fairly reproduced. Proof that the evidence has not been altered may be established in a similar fashion” {id. at 60 [citations omitted]).

It was also reversible error to exclude, as improper hearsay, testimony by plaintiffs brother about what defendant said on the audiotape. Defendant’s statements were admissible as admissions of a party opponent (see e.g. 2 Broun, McCormick on Evidence § 254 [6th ed]). Indeed, the majority accepts that defendant’s statements to plaintiffs brother were admissible, though it dismisses the objection to their exclusion as unpreserved and the error as harmless {see majority mem at 898).

IL

I part with the majority most definitively with regard to the question whether the trial court’s errors were harmless. In my view, the evidence that was improperly excluded was directly relevant to the question whether defendant initiated the prosecution, and did so falsely.

To recover for malicious prosecution, plaintiff had to establish, initially, “the commencement or continuation of a criminal proceeding by the defendant against the plaintiff” (Smith-Hunter v Harvey, 95 NY2d 191, 195 [2000]). Our case law makes clear that, to establish this first element, plaintiff must show that “the indictment was procured by fraud, perjury, suppression of evidence, or other bad-faith conduct” (majority mem at 898, citing Colon v City of New York, 60 NY2d 78, 83 [1983]).

Contrary to the majority opinion {see majority mem at 896 n), we have explained how a plaintiff in a malicious prosecution case may demonstrate that the defendant “commenced” the underlying criminal proceeding. Plaintiff may do so “by showing that the defendant did not make a full and complete statement of the facts either to the magistrate or to the District Attorney; has misrepresented or falsified the evidence, or else has kept back information or facts which might have affected the result” (Hopkinson v Lehigh Val. R.R. Co., 249 NY 296, 300 [1928]). On the other hand,

“[i]f a person disclose[s] fairly and truthfully to an officer whose duty it is to prosecute crime, all matters within his [or her] knowledge, which as a [person] of ordinary intelligence he [or she] is bound to suppose would have a material bearing upon the question of the innocence or guilt of the persons suspected, and leaves it to the prosecutor to act entirely upon [the prosecutor’s] own judgment and responsibility as a public officer, and does no more, he [or she] cannot be held answerable in an action for malicious prosecution, even if the officer comes to a wrong conclusion and prosecutes when [the prosecutor] ought not to do so” (id. at 300-301; see also PJI SiSO.B).

While the quoted sentences from Hopkinson v Lehigh Val. R.R. Co. described the probable cause element within the context of that case, they have taken on a wider significance in subsequent case law. “New York law has long equated the civil defendant’s failure to make a full and complete statement of the facts to the District Attorney or the court, or holding back information that might have affected the results, with that defendant’s initiation of a malicious prosecution” (Ramos v City of New York, 285 AD2d 284, 299-300 [1st Dept 2001] [emphasis added], citing Hopkinson v Lehigh Val. R.R. Co., 249 NY at 300; see also e.g. Present v Avon Prods., 253 AD2d 183, 189-190 [1st Dept 1999] [citing Hopkinson for the proposition that “(o)ne who does no more than disclose to a prosecutor all material information within his knowledge is not deemed to be the initiator of the proceeding”]).

Moreover, the commencement of criminal proceeding element and the probable cause element are not as easily disentangled as the majority seems to assume. Although we have identified commencement as a separate element since at least Broughton v State of New York (37 NY2d 451, 457 [1975]), our earliest malicious prosecution cases make it clear that the gravamen of the tort is that “the defendant wickedly and maliciously and without probable cause gave false information . . . [causing prosecution] and that the proceedings terminated in plaintiffs favor” (Al Raschid v News Syndicate Co., 265 NY 1, 3 [1934]; see also Burt v Smith, 181 NY 1, 5 [1905] [“(a) malicious prosecution is one that is begun in malice, without probable cause to believe it can succeed, and which finally ends in failure”]). Similarly, the commencement of proceeding element and the probable cause element are considered to be a single element in the Restatement of Torts: “initiates or procures the proceedings without probable cause and primarily for a purpose other than that of bringing an offender to justice” (Restatement [Second] of Torts § 653 [a]).

Here, plaintiff was prepared to prove that defendant was responsible for his prosecution, by lying to the police. The evidence was directly relevant to whether defendant “commenced” the proceeding within the meaning of our case law. Contrary to the majority’s analysis (see majority mem at 898), the fact that the ultimate decision whether or not to prosecute a case falls on the District Attorney’s office, not the complainant, proves nothing. Under our case law, if the complainant engages in bad faith conduct that results in a prosecution, she has “commenced” the prosecution.

The majority surely does not mean to hold that one who lies to the police in order to cause a criminal prosecution is immunized from a malicious prosecution suit because a prosecutor, misled by the false information, chooses to pursue the case. Such a holding would essentially abolish the tort of malicious prosecution. When a complainant

“has put in motion the officers of the law, ... by his [or her] false and malicious statement it does not, either upon principle or authority, lay with him [or her] to say by way of defence that the injury resulting from the wrong committed by him [or her] would not have been consummated but for the innocent mistake of those imposed upon by him [or her]” (Dennis v Ryan, 65 NY 385, 389 [1875]).

The trial court both excluded the tape recording and refused to allow plaintiffs brother to testify about what defendant had told him. In doing so, the court effectively blocked all methods by which plaintiff could establish his case. As such, the error was not harmless.

Therefore, I would reverse the Appellate Division’s order.

Chief Judge Lippman and Judges Ciparick, Grapfeo and Read concur; Judge Pigott dissents and votes to reverse in an opinion in which Judge Smith concurs.

Order affirmed, with costs, in a memorandum.

       We have never elaborated on how a plaintiff in a malicious prosecution case demonstrates that the defendant commenced or continued the underlying criminal proceeding. The dissent points to Hopkinson v Lehigh Val. R.R. Co. (249 NY 296 [1928]) for an explanation of the “commencement” element of a malicious prosecution claim (see dissenting op at 901-903). In Hopkinson, however, we discussed a plaintiff’s burden with respect to establishing the absence of probable cause—a separate element of malicious prosecution which is not at issue in this case—and did not mention commencement. Although the dissent argues that the elements of malicious prosecution cannot be easily disentangled (id. at 902-903), the trial judge instructed the jury to consider each element separately. For purposes of this appeal, we presume that the judge’s uncontested instructions correctly stated the law.

      . Supreme Court’s jury instruction, which was drawn from PJI 3:50.2, accurately tracked this case law:
      “If you find that the defendant fairly and truthfully disclosed to the District Attorney all matters within her knowledge that a reasonably prudent person would believe important on the question of plaintiffs guilt or innocence and that the decision to present the matter to the Grand Jury was made by the District Attorney, the defendant is not responsible for the prosecution. If, however, you find that the defendant directed the District Attorney to prosecute and gave the District Attorney information that the defendant knew to be false, the defendant is responsible for prosecution.”

      . Although my view of this case does not depend on it, I believe that the other evidentiary rulings raised by plaintiff were errors as well. As to the admission of the grand jury minutes, there is no dispute that they would have been admissible, and I believe they would have been particularly germane here where the very basis of plaintiffs claim is that defendant lied before the grand jury so that he would be prosecuted. Finally, the trial court’s refusal to permit plaintiff to prove that defendant lied to obtain the order of protection that formed the basis of plaintiffs subsequent prosecution was an abuse of discretion, regardless of whether plaintiff challenged the order of protection when issued.


text:
    Geoffrey Bond et al., Respondents, v Thomas A. Turner et al., Appellants, and Village of Lakewood, Respondent.
    Submitted September 17, 2012;
    decided November 20, 2012
   Motion for leave to appeal dismissed upon the ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals (see Parker v Rogerson, 35 NY2d 751, 753 [1974]).


text:
    Expedia, Inc., et al., Respondents, et al., Plaintiffs, v City of New York Department of Finance et al., Appellants.
    Submitted July 2, 2012;
    decided November 20, 2012
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (see CPLR 5601 [b] [1]).


text:
    Kelly A. Herr, Appellant, v James E. Herr, Respondent.
    Submitted August 27, 2012;
    decided November 20, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Marguerite James, Appellant, v David Wormuth, M.D., et al., Respondents.
    Submitted October 15, 2012;
    decided November 20, 2012
   Motion to dismiss appeal denied.


text:
    In the Matter of Anthony H. Linnen, Appellant, v Albert Prack, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted August 27, 2012;
    decided November 20, 2012
   Motion, insofar as it seeks leave to appeal from the February 2012 Appellate Division judgment, dismissed as untimely (see CPLR 5513 Pd]). The prior motion for leave to appeal made at the Appellate Division was untimely. Motion, insofar as it seeks leave to appeal from the June 2012 Appellate Division order, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Conrado Pons, Appellant, v William A. Lee, Respondent.
    Submitted August 27, 2012;
    decided November 20, 2012
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Village of Port Chester, Appellant. Dominick D. Bologna et al., Respondents.
    Submitted September 9, 2012;
    decided November 20, 2012
   Motion by G&S Port Chester, LLC for leave to file a memorandum of law amicus curiae on the motion for leave to appeal herein granted and the memorandum of law is accepted as filed.


text:
    Joseph O. Yebo, Appellant, v Helene M. Cuadra, Respondent.
    Submitted September 10, 2012;
    decided November 20, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    [980 NE2d 527, 956 NYS2d 478]
    Bernard Lewis, Respondent, v Joseph Caputo, Individually, Appellant, et al., Defendants.
    Decided November 27, 2012
    APPEARANCES OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (June A. Witterschein of counsel), for appellant.

      Michael J. Andrews, P.C., New York City (Michael J. Andrews of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the complaint dismissed.

The Appellate Division incorrectly determined that defendant failed to provide a sufficient basis for establishing probable cause as a matter of law. While different inferences as to plaintiffs guilt or innocence of the underlying crime are possible, only one reasonable inference could be drawn from the facts regarding probable cause. Therefore, the issue was not one properly presented to the jury for determination (see Veras v Truth Verification Corp., 57 NY2d 947 [1982], affg for reasons stated at 87 AD2d 381 [1st Dept 1982]; cf. Smith v County of Nassau, 34 NY2d 18 [1974]).

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.


text:
    [981 NE2d 256, 957 NYS2d 660]
    The People of the State of New York, Appellant, v John M. Gavazzi, Respondent.
    Argued October 16, 2012;
    decided November 27, 2012

      APPEARANCES OF COUNSEL

      Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), for appellant.

      John D. Cameron, Public Defender, Norwich, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

A New York State trooper, assigned to interview defendant John Mario Gavazzi, who was suspected of receiving and sending child pornography images by email, applied for a warrant to search defendant’s residence in the Village of Greene, Chenango County. In drafting the search warrant, the trooper inadvertently typed Local Criminal Court, Town of Broome, Broome County” at the head of the warrant, instead of “Local Criminal Court, Town of Greene, Chenango County.” There is no municipality of Broome in either Broome County or Chenango County. The Village Justice signed the warrant without correcting the mistake. His signature was affixed on a line marked “Signature of Judge or Justice,” but it is illegible, and the court is not named.

Upon executing the warrant, the trooper entered and searched defendant’s residence, where he found printed photographs of young, nude children. Defendant was arrested.

On a motion to suppress, defendant argued that the search warrant did not substantially comply with CPL 690.45 (1). The prosecutor countered that the mistake was merely a technical error. The defense motion was denied. County Court convicted defendant, upon his guilty plea, of promoting a sexual performance by a child and possessing a sexual performance by a child, but stayed his sentence pending appeal.

The Appellate Division granted defendant’s motion to suppress, and reversed County Court’s judgment. The Appellate Division held that the search warrant did not substantially comply with GPL 690.45 (1), because it contained “no information from which the issuing court can be discerned” (84 AD3d 1427, 1429 [3d Dept 2011]). We agree with the Appellate Division.

A search warrant must contain “[t]he name of the issuing court” (GPL 690.45 [1]). The standard for adherence with the statutory requirement is “substantial—rather than literal— compliance” (People v Taylor, 73 NY2d 683, 688 [1989]; see People v Brown, 40 NY2d 183, 186 [1976]). If “a conscientious effort” (Brown, 40 NY2d at 188) was made to comply with the statutory requirement, and the warrant contains information from which the identity of the issuing court may reasonably be inferred, courts will typically validate a warrant (see e.g. People v Smythe, 172 AD2d 1028 [4th Dept 1991]; People v Pizzuto, 101 AD2d 1024, 1024-1025 [4th Dept 1984]).

Here, the Village Justice who signed the warrant included no designation of his court, his signature is illegible, there is no seal, and the caption typed by the trooper refers to a nonexistent town. While it is clear that the warrant directs Village of Greene police officers to search a house in Greene, there is no indication whatsoever which of the several courts that have authority to issue warrants in the Village of Greene issued the warrant permitting the search. As the Appellate Division put it, “on its face the warrant appears to [have been] issued by an unidentified judge in a nonexistent court and town in a different county” (84 AD3d at 1429). As such, we conclude that the warrant did not substantially comply with GPL 690.45 (1).

Finally, contrary to our dissenting colleague, suppression is warranted because the name requirement of GPL 690.45 (1) “operates directly to protect and preserve a constitutionally guaranteed right of the citizen” (People v Patterson, 78 NY2d 711, 717 [1991]; see also People v Greene, 9 NY3d 277, 280-281 [2007]). The right safeguarded by the name requirement is the right that is protected by the constitutional requirement of a warrant (US Const 4th Amend; NY Const, art I, § 12)—the right to have a “neutral and detached magistrate” (Johnson v United States, 333 US 10, 14 [1948]) sign the warrant to search one’s house.

Smith, J. (dissenting).

The suppression of evidence is a drastic remedy—one that increases the likelihood of, if it does not guarantee, an unjust result. Very often it means, in the famous phrase of our most famous predecessor, that “[t]he criminal is to go free because the constable has blundered” (People v Defore, 242 NY 13, 21 [1926, Cardozo, J.]). We have several times made clear that evidence should be suppressed only to protect constitutional rights, not to punish every violation of a statute (People v Taylor, 73 NY2d 683, 690-691 [1989]; People v Patterson, 78 NY2d 711, 714-718 [1991]; People v Greene, 9 NY3d 277, 280-281 [2007]). Yet here the majority grants suppression as a remedy for a clerical error where no constitutional right was endangered.

The majority relies on Taylor for the proposition that “[t]he standard for adherence with the statutory requirement is 'substantial—rather than literal—compliance’ ” (majority mem at 909, quoting Taylor, 73 NY2d at 688). But we made clear in Taylor that application of the “substantial compliance” test turned on whether a constitutional right was in jeopardy. While the error in Taylor—violation of a statutory command that testimony in support of a search warrant application be either recorded or summarized on the record (CPL 690.40 [1])—did not itself violate a constitutional requirement, we emphasized that the purpose of the statute was to implement constitutional prohibitions against unreasonable searches and seizures. We explained:

“This failure of substantial compliance with the requirements of law requires that the evidence discovered during the search purportedly authorized by the defective warrant be suppressed, notwithstanding that the recordation requirement is set forth in a statute rather than in the State or Federal Constitution. The purpose of the recordation requirement of CPL 690.40 (1) is to provide the very basis for an appellate determination of probable cause for issuance of a search warrant. Thus, substantial failure to comply with this statute is wholly unlike other statutory violations. While not itself a constitutional requirement, compliance is indispensable to the determination whether the constitutional requirements for a valid search and seizure have been met” (73 NY2d at 690 [citations omitted]).

Patterson involved another statutory violation—a failure to return defendant’s photograph after a charge against him had been dismissed (see CPL 160.50 [1] [a]). We denied suppression of evidence that resulted from this error, saying:

“Although CPL 160.50 was violated, that violation did not infringe upon any constitutional right of the defendant sufficient to warrant invocation of the exclusionary rule” (78 NY2d at 714).

Distinguishing Taylor and other cases, we said:

“[W]e have, in limited circumstances, held that the violation of a statute may warrant imposing the sanction of suppression. However, we have done so only where a constitutionally protected right was implicated, a circumstance not here present” {id. at 716-717).

More recently, in Greene, we denied suppression of evidence resulting from a breach of the statutory physician-patient privilege (CPLR 4504 [a]), and reaffirmed the rule of Taylor and Patterson:

“Our decisions make clear that a violation of a statute does not, without more, justify suppressing the evidence to which that violation leads ....
“We have made an exception to this rule only when the principal purpose of a statute is to protect a constitutional right” (9 NY3d at 280).

The statute at issue here, CPL 690.45 (1), requires a search warrant to contain “[t]he name of the issuing court.” It seems clear to me that this requirement is neither constitutional in itself nor designed to protect constitutional rights. The majority says that it safeguards the right to have the warrant signed by a “ ‘neutral and detached magistrate’ ” (majority mem at 909, quoting Johnson v United States, 333 US 10, 14 [1948]); the implicit suggestion—that to tolerate errors in naming the court will open the door to alleged “warrants” that are not in fact signed by a judge at all—is, I respectfully submit, far-fetched. The name requirement is essentially formal, and sloppiness in complying with it, while regrettable, endangers no one’s liberty. In this, it is in contrast to the requirement of CPL 690.40 (1), at issue in Taylor, that the evidence supporting a search warrant be appropriately memorialized; a violation of that requirement creates the real risk that warrants issued without adequate support will escape scrutiny.

The majority concludes that the warrant here “did not substantially comply with CPL 690.45 (1)” (majority mem at 909) because the name of the court cannot be deduced from the face of the warrant. I grant that this warrant did not come close to complying with the “name” requirement of the first subdivision of CPL 690.45. But following the rule of Taylor, Patterson and Greene, I would hold that that is not the decisive question. The warrant did comply—not just substantially, but literally— with those parts of CPL 690.45 that are designed for the protection of constitutional rights. Specifically, the warrant complied with CPL 690.45 (4) and (5) by describing the place to be searched and the things to be seized. These subdivisions implement the requirements of the Fourth Amendment to the United States Constitution and article I, § 12 of the New York Constitution.

The violation of the non-constitutional requirement of section 690.45 (1) does not justify the suppression of evidence. I would reverse the Appellate Division order, reinstate County Court’s order denying suppression, and reinstate defendant’s conviction.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read and Pigott concur; Judge Smith dissents and votes to reverse in an opinion.

Order affirmed in a memorandum.


text:
    [980 NE2d 527, 956 NYS2d 478]
    The People of the State of New York, Appellant, v James A. Harris, Jr., Respondent.
    Decided November 27, 2012

      APPEARANCES OF COUNSEL

      Francis D. Phillips, II, District Attorney, Middletown (Andrew R. Kass of counsel), for appellant.

      Warren S. Hecht, Forest Hills, for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed. There is support in the record for the Appellate Division’s determination that defendant unequivocally invoked his right to counsel while in custody, and that mixed question of law and fact is beyond our further review. We agree with the Appellate Division that the hearing court’s error in failing to suppress defendant’s statements was not harmless beyond a reasonable doubt and that defendant is entitled to a new trial.

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