text:
    [ 843 NE2d 739, 810 NYS2d 112]
    In the Matter of George Rizzo, Appellant, v New York State Division of Housing and Community Renewal, Respondent.
    Argued November 15, 2005;
    decided December 20, 2005

      POINTS OF COUNSEL

      Linda Rzesniowiecki, New York City, for appellant.
    I. The legislative intent behind the Sound Housing Act and the rent regulation laws mandates the consideration of the new evidence by the Division of Housing and Community Renewal. (Kalikow 78/79 Co. v State of New York, 174 AD2d 7; Matter of Legra v Division of Hous. & Community Renewal of State of N.Y., 194 AD2d 677; Braschi v Stahl Assoc. Co., 74 NY2d 201; Matter of McMurray v New York State Div. of Hous. & Community Renewal, 135 AD2d 235, 72 NY2d 1022; Post v 120 E. End Ave. Corp., 62 NY2d 19; Nestor v McDowell, 81 NY2d 410; Killington Invs. v Leino, 148 AD2d 334; First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630.) II. New York City Rent and Rehabilitation Law (Administrative Code of City of NY) § 26-411 (a) (2) provides ample support for the Supreme Court’s decision to remit the case to the Division of Housing and Community Renewal for consideration of new evidence. (Matter of McMurray v New York State Div. of Hous. & Community Renewal, 135 AD2d 235, 72 NY2d 1022.) III. The Supreme Court did not err when it remitted the proceeding after George Rizzo’s attorney advised the court about the new evidence. (Rebmann v Wicks, 259 AD2d 972; Nestor v McDowell, 81 NY2d 410.) IV The Division of Housing and Community Renewal (DHCR) has the discretion to revoke or cancel an order granting a certificate of eviction at any time prior to the execution of the warrant if the landlord’s circumstances have changed. Under the changed circumstances of this case, DHCR should have accepted the remit order to consider whether the certificate should be revoked or canceled. It was an abuse of DHCR’s discretion not to accept the remit or take back the case on its own initiative. (Nestor v McDowell, 81 NY2d 410; Matter of Dworman v New York State Div. of Hous.

      & Community Renewal, 94 NY2d 359; Matter of James v New York City Hous. Auth., 186 AD2d 498; Matter of Dukuly v Aponte, 204 AD2d 189; Davern Realty Corp. v Vaughn, 161 Misc 2d 550.) V The Division of Housing and Community Renewal has improperly terminated George Rizzo’s right to use the apartment as an artist’s studio. (Matter of Malacarne v City of Yonkers Parking Auth., 41 NY2d 189; Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 238; Matter of Lower Manhattan Loft Tenants v New York City Loft Bd., 66 NY2d 298; Matter of Meyer & Steffens v Popolizzio, 124 Misc 2d 159; Matter of Fuller v Urstadt, 28 NY2d 315; Reiss v Financial Performance Corp., 97 NY2d 195; Matter of Duell v Condon, 84 NY2d 773.) VI. The owner’s bad faith is demonstrated by her financial inability to undertake the alteration project. (Mayfair-York Corp. v McGoldrick, 286 App Div 154; Matter of Village Tenth Co. v Walsh, 40 AD2d 969; Matter of Goldsmith v Gabel, 43 Misc 2d 286; Matter of Mahoney v Altman, 63 Misc 2d 1062; Matter of Malacarne v City of Yonkers Parking Auth., 41 NY2d 189; Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 238.) VII. It was arbitrary and capricious for the Division of Housing and Community Renewal to make a determination that the owner was acting in good faith without holding a hearing. (Powers v Babic, 177 AD2d 432; Matter of McMurray v New York State Div. of Hous. & Community Renewal, 72 NY2d 1022.) VIII. It was arbitrary and capricious for the Division of Housing and Community Renewal to determine that the owner’s application was made in good faith, since it was not made for the immediate purpose of altering the premises.

      Gary Turk, New York City, and David B. Cabrera for respondent.
    I. Legislative intent, public policy and controlling case precedent support the Appellate Division decision. (Matter of Kiki Realty Corp. v Weaver, 12 Misc 2d 716; Matter of Ziman v New York State Div. of Hous. & Community Renewal, 153 AD2d 489, 76 NY2d 727, 889; Matter of McMurray v New York State Div. of Hous. & Community Renewal, 135 AD2d 235; People v Newman, 32 NY2d 379.) II. Review after issuance of the Division of Housing and Community Renewal’s final order is limited to those facts of record at the time of the Rent Administrator’s order. (Matter of Guddemi v State of N.Y., Div. of Hous. & Community Renewal, 138 AD2d 376; Fresh Meadows Assoc. v Conciliation & Appeals Bd., 88 Misc 2d 1003, 55 AD2d 559, 42 NY2d 925; Matter of Plaza Mgt. Co. v City Rent Agency, 37 NY2d 837; Matter of Klaus v Joy, 85 AD2d 603; Matter of Fanelli v

      New York City Conciliation & Appeals Bd., 90 AD2d 756, 58 NY2d 952; Matter of Yonkers Gardens Co. v State of N.Y. Div. of Hous. & Community Renewal, 51 NY2d 966; Matter of McMurray v New York State Div. of Hous. & Community Renewal, 135 AD2d 235; Matter of Ziman v New York State Div. of Hous. & Community Renewed, 153 AD2d 489; Solnick v Whalen, 49 NY2d 224; Stone v Goldberg, 215 AD2d 180.) III. The Rent Administrator’s and Housing and Community Renewal Commissioner’s reliance on and adoption of the Administrative Law Judge’s findings of fact and conclusions of law were neither arbitrary nor capricious—rather they were wholly proper and appropriate. (Pringle v Herman, 465 F Supp 643; Matter of Hennekens v State Tax Commn. of State of N.Y., 114 AD2d 599; Matter of Haz-O-Waste Corp. v Williams, 103 AD2d 1001; Matter of Celestial Food Corp. of Coram v New York State Liq. Auth., 99 AD2d 25; Matter of Berenhaus v Ward, 70 NY2d 436; Matter of Belnord Holding Corp. v Joy, 73 AD2d 549; State Off. of Drug Abuse Servs. v State Human Rights Appeal Bd., 48 NY2d 276.) IV The Division of Housing and Community Renewal’s order is supported by a rational basis and is entitled to affirmance. (Matter of Oriental Blvd. Co. v New York City Conciliation & Appeals Bd., 92 AD2d 470, 60 NY2d 633; Fresh Meadows Assoc. v Conciliation & Appeals Bd., 88 Misc 2d 1003, 55 AD2d 559, 42 NY2d 925; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Cale Dev. Co. v Conciliation & Appeals Bd., 94 AD2d 229, 61 NY2d 976; Matter of Herzog v Joy, 74 AD2d 372, 53 NY2d 821; Minton v Domb, 63 AD2d 36; Matter of Salvati v Eimicke, 72 NY2d 784; Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104; Matter of Plaza Mgt. Co. v City Rent Agency, 37 NY2d 837.)
   OPINION OF THE COURT

Rosenblatt, J.

In this CPLR article 78 proceeding, we hold that after the New York State Division of Housing and Community Renewal (DHCR) has issued a final determination, concerning an application for a certificate of eviction pursuant to New York City Administrative Code § 26-408 (b) (3) or New York City Rent and Eviction Regulations (9 NYCRR) § 2204.7, a reviewing court may not remit the matter to the agency for de novo review of events that arose after its determination.

I.

Rachel Crespin owns 323 East 53rd Street, a four-story apartment building in Manhattan. Petitioner George Rizzo resides in a rent-controlled unit comprising the third floor of the building. He lives alone in an apartment of some 1,200 square feet which, as of the original certificate of occupancy, contained six rooms. Crespin resides in a unit comprising the second story; she and her husband had been the building’s first rent-controlled tenants. The fourth-floor apartment was rent-controlled until its occupant, Elaine Bloedow, died in early January 2002, an event of significance in this litigation. The remaining unit is unregulated.

Crespin bought the building in 1981. In 1996, she filed applications for certificates of partial eviction of Rizzo and Bloedow, explaining that she had been losing money on the property for years. In her application, she relied on New York City Rent and Eviction Regulations (9 NYCRR) § 2204.7, which prescribes when the Rent Administrator may authorize subdivision of an under-occupied, rent-controlled apartment and order partial eviction of its tenant. Crespin sought to evict Rizzo and Bloedow from the front portions of their units, leaving them with considerably smaller apartments, in order to create a new duplex unit from the vacated front rooms.

The New York City Rent and Rehabilitation Law and its implementing regulations require the City’s rent agency to issue an order granting a certificate of eviction or partial eviction when “[t]he landlord seeks in good faith to recover possession of a housing accommodation for the immediate purpose of substantially altering or remodeling it” (Administrative Code of City of NY § 26-408 [b] [3]; NY City Rent and Eviction Regulations [9 NYCRR] § 2204.7). Such a certificate, however, may be granted only if two conditions are met: the agency must determine, first, that the housing accommodation in question is under-occupied and contains six or more rooms, excluding bathrooms and kitchen (NY City Rent and Eviction Regulations [9 NYCRR] § 2204.7 [a]), and, second, that, without recourse to eviction, “there is no reasonable possibility that the landlord can make a net annual return of eight and one-half per centum of the assessed value of the subject property” (Administrative Code of City of NY § 26-408 [b] [5] [a]; see also NY City Rent and Eviction Regulations [9 NYCRR] § 2204.4 [g] [1]).

Following an audit of Crespin’s income and expenses for the “test year” 1996, an inspection of Rizzo’s apartment, a fact-finding hearing in 1999 and a detailed, May 26, 2000 report by an Administrative Law Judge, DHCR granted Crespin’s application, on September 18, 2000, and ordered Rizzo and Bloedow to surrender the front halves of their apartments. The agency also ordered Crespin to reduce Rizzo’s rent from $673.64 to a maximum of $301.55. With regard to the relevant year, 1996, DHCR’s District Rent Administrator noted that the Administrative Law Judge had found no reasonable possibility that Crespin could make a net annual return of 8.5% of the assessed valuation of the property, without recourse to eviction. The Rent Administrator further found that there was no probative evidence of bad faith on Crespin’s part; that Rizzo’s apartment originally contained six rooms and that a wall had been taken down in the interim; and that it was under-occupied within the meaning of New York City Rent and Eviction Regulations (9 NYCRR) § 2204.7 (a).

Rizzo and Bloedow filed petitions for administrative review. On January 2, 2002, the DHCR Deputy Commissioner denied them. Then, apparently the very next day, Bloedow died, and her apartment became deregulated.

In March 2002, Rizzo commenced this article 78 proceeding, seeking reversal and remittal to DHCR. Supreme Court noted that Bloedow’s death had resulted in decontrol of her apartment and held that “[t]he impact of the recent deregulation of Ms. Bloedow’s apartment must be considered by the DHCR in determining the owner’s ability to meet the 81/2% return requirements of the Sound Housing Act.” It vacated DHCR’s determination, ordered that the evidence of Bloedow’s death and its impact be presented to the agency and remitted the application for reprocessing.

DHCR appealed and, by a divided court, the Appellate Division reversed, concluding that the trial court’s consideration of evidence not contained in the administrative record exceeded the scope of permissible judicial review. Rizzo appeals as of right (CPLR 5601 [a]), and we now affirm.

II.

In reviewing orders of the DHCR, courts are limited to the factual record before the agency when its determination was rendered. As a rule, the court may not consider evidence concerning events that took place after the agency made its determination. This follows from a fundamental principle of article 78 review, that “[jJudicial review of administrative determinations is confined to the facts and record adduced before the agency” (Matter of Yarbough v Franco, 95 NY2d 342, 347 [2000] [internal quotation marks and citation omitted]). That, of course, is merely another way of saying that an appellate court is bound by the record. In short, “[j]udicial review of an administrative determination is limited to the grounds invoked by the agency” (Matter of Aronsky v Board of Educ., Community School Dist. No. 22 of City of N.Y., 75 NY2d 997, 1000 [1990]; see generally Matter of Montauk Improvement v Proccacino, 41 NY2d 913 [1977]).

Rizzo relies on New York City Administrative Code § 26-411 (a) (2), which carves out a narrow exception to the general rule:

“If application is made to the court by either party for leave to introduce additional evidence which was either offered and not admitted or which could not reasonably have been offered or included in such proceedings before the city rent agency, and the court determines that such evidence should be admitted, the court shall order the evidence to be presented to the city rent agency.”

This language, however, should not be interpreted as permitting a court to engage in, or order, a de novo review based on events that took place after the agency made its determination. As the Appellate Division noted, “the admission of subsequent events which occurred after the final agency order would defeat finality and could subject an otherwise final order to endless recurring review” (16 AD3d 72, 78 [2005]). We agree with DHCR that it could not have been the intent of the Legislature to subject the agency’s rulings to the prospect of such endless review, based on submissions by tenants or by landlords as to postdetermination events.

We therefore hold that in judicial review of a rent agency decision made pursuant to New York City Administrative Code § 26-408 (b) (3) or New York City Rent and Eviction Regulations (9 NYCRR) § 2204.7, the “additional evidence” that may be admitted under section 26-411 (a) (2) is limited to facts that arose before the agency made its determination. When, as here, DHCR determines that a landlord’s application for a certificate of eviction should be granted because, at the time of the application, there was no reasonable possibility that the landlord could make an 8.5% net annual return, a reviewing court may admit additional evidence only if the evidence is relevant to that time-specific determination.

DHCR’s inquiry was whether Crespin could make an 8.5% net annual return in the test year 1996. Bloedow’s death in 2002 was irrelevant to the DHCR’s determination and should not have been considered by Supreme Court. By ordering that the evidence of Bloedow’s death be presented to the DHCR, the court exceeded the permissible scope of its review.

III.

Petitioner and our dissenting colleague cite Matter of McMurray v New York State Div. of Hous. & Community Renewal (72 NY2d 1022 [1988]) in support of the claim that Supreme Court correctly remitted the matter to the agency for de novo review. McMurray is not on point. It concerned a different provision of the Rent and Rehabilitation Law (Administrative Code of City of NY § 26-408 [b] [1]), the legislative history of which distinguishes it from New York City Administrative Code § 26-408 (b) (5) (a), the provision that is crucial here.

New York City Administrative Code § 26-408 (b) (1), the subject of McMurray, makes tenancy for less than 20 years a condition precedent of evicting the tenant of a rent-controlled apartment that the landlord requires for personal use and occupancy. This Court held that “a tenant in possession who accumulates the requisite 20 years of occupancy before the validity of a certificate of eviction is finally determined by the courts is protected from eviction,” even when the tenant reaches the 20-year milestone after the certificate of eviction is issued (72 NY2d 1022, 1024).

The provision in McMurray was construed in the tenant’s favor because the legislative history of that provision, a 1984 amendment, shows a clear intent to protect elderly, long-term and disabled tenants from eviction merely for the sake of an owner’s personal use and occupancy, irrespective of the timing of the landlord’s application for a certificate of eviction. For example, the 1984 amendment was expressly made applicable “to any tenant in possession at or after the time it [took] effect,” regardless of whether the landlord’s application occurred before the act took effect (L 1984, ch 234, § 4 [emphasis added]). We held in McMurray that the Legislature intended the section 26-408 (b) (1) protection to apply whenever a tenant in possession reaches the 20-year milestone. We are unpersuaded, however, that by enacting New York City Administrative Code § 26-408 (b) (5) (a), the Legislature intended to give a tenant— or, in another case, a landlord—the right to have ongoing de novo review of whether the landlord can make an 8.5% net annual return for as long as the tenant is in possession.

IV

We further agree with the Appellate Division that DHCR’s determination was supported by substantial evidence and was not arbitrary or capricious.

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

Cipabick, J. (dissenting). Because the Sound Housing Act of 1974 and city rent control laws bestow the New York State Division of Housing and Community Renewal (DHCR), as well as the courts, with discretion to effectuate its goal of avoiding unwarranted evictions and preserving affordable housing, I respectfully dissent.

This case involves the interplay of the Sound Housing Act and the introduction of new evidence under New York City Administrative Code § 26-411 (a) (2). “It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature” (Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205, 208 [1976]). The starting point is always to look to the language itself and “[w]here the language of a statute is clear and unambiguous, courts must give effect to its plain meaning” (Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 91 [2001]).

Looking at the plain language of the statutes, I conclude that Supreme Court did not exceed the permissible scope of its review (majority op at 111) but acted reasonably in interpreting these statutes to authorize it to remit the matter to DHCR when, as here, new evidence arose which tangibly called into question the justification for evicting petitioner from over half of his apartment. The Sound Housing Act as codified in New York City Administrative Code § 26-408 (b) (5) is unambiguous in its requirement that in order to evict a rent controlled tenant for alteration or demolition purposes the agency must find that “there is no reasonable possibility that the landlord can make a net annual return of eight and one-half per centum of the assessed value of the subject property” (§ 26-408 [b] [5] [a] [emphasis added]). It is further provided that where a party attempts to introduce new evidence which the court finds admissible, the new evidence must then be remitted to DHCR (Administrative Code of City of NY § 26-411 [a] [2]).

Clearly, the new evidence of the death of the only other rent controlled tenant, Elaine Bloedow, was unavailable earlier, as she died on or about the day the DHCR Deputy Commissioner issued his final order in January 2002, but before the execution of a certificate of eviction. Equally as obvious is that Bloedow’s death materially changed the potential income of the building as the apartment became immediately deregulated. Thus, Supreme Court’s remittal to the DHCR for consideration of what implications the deregulation of Bloedow’s apartment has on the building’s financial return fits squarely under the statute. It was an abuse of discretion on the part of DHCR not to accept the remittal from Supreme Court.

Regardless, the majority wishes to narrow the breadth of the statute by limiting for consideration evidence of only events that occurred prior to DHCR’s final order (majority op at 111). However, nothing in the language of the statute or its legislative history limits the introduction of evidence based on when it arose. Instead, it explicitly contemplates the late introduction of evidence—after the agency has acted—by requiring the court, during its review, to refer any new relevant evidence to the agency. Thus, under the plain language of the statute, Supreme Court acted properly and within its discretion by ordering the new evidence to be presented to DHCR.

Assuming arguendo that the plain language was not so clear, the remedial nature of the statute and the legislative history of the Sound Housing Act require DHCR to consider this change in circumstances. When faced with the application of a remedial statute, we must give it liberal construction to carry out the reform intended and to spread its beneficial results as widely as possible (see Post v 120 E. End Ave. Corp., 62 NY2d 19, 24 [1984]). “[S]ince rent-control laws are remedial in nature and designed to promote the public good, their provisions should be interpreted broadly to effectuate their purposes” (Braschi v Stahl Assoc. Co., 74 NY2d 201, 208 [1989] [citations omitted]).

“It is fundamental that in construing the words of a statute [t]he legislative intent is the great and controlling principle” (Braschi, 74 NY2d at 207 [internal quotation marks omitted]). The purpose of the Sound Housing Act as proffered by its sponsors is to “prohibit[ ] the eviction of tenants from rent controlled housing for demolition or alteration unless there is no reasonable possibility of the landlord making a fair return without eviction for the purposes of demolition or alteration” (Sponsor’s Mem, at 1, Bill Jacket, L 1974, ch 1022). In explaining the need for the Sound Housing Act, the sponsors made reference to the fact that “Mousing of the type being lost can no longer be built in this city” and “[e]ven subsidized housing comes in at rentals far beyond the means of working people of moderate means” (id.). The memorandum further noted that “[t]he housing being destroyed also houses many of the City’s elderly people whose only income is a social security check” (id. at 2). The Mayor of the City of New York in support of this bill stated that:

“Indiscriminate demolition has had a debilitating affect on entire neighborhoods in the City. Long term residents are displaced and the stability of communities [is] threatened. The underlying assumption in this bill is that tenants shall not be evicted if the building is physically sound or economically viable” (Letter from City of NY Office of Mayor, May 3, 1974, Bill Jacket, L 1974, ch 1022).

The legislative history and the underlying rationale behind New York City’s rent regulatory framework are forthright in their intent to prevent unwarranted evictions and to preserve affordable housing, yet the majority’s decision subjects the tenant to eviction from most of his apartment despite the appearance that the building is now economically sound. In fact, petitioner’s situation is illustrative of exactly what the rent regulatory laws aim to protect. Rizzo is 84 years old and has lived in the apartment for 45 years. The record reflects that he uses the apartment both to live and to work as an artist, and there is no indication that he is anything but a good tenant. To partially evict Rizzo, leaves him with under 500 square feet of space for living and working and deprives him of more than half the apartment.

Now while I concede that it is likely that New York City Administrative Code § 26-408 (b) (3) and (5) using the 1996 test year would permit the alteration of the apartment by the landlord for an increase in her net annual return, it is undisputed that the situation here has changed dramatically since Bloedow’s death.

Bloedow lived on the fourth floor. Upon her death, the apartment she had occupied was deregulated and the landlord became free to charge the substantially higher market rent. If this scenario increases the landlord’s return beyond 8V2%, which it likely will, there would be no need or legal basis to resort to the drastic measure of evicting Rizzo. There is nothing in the statute or our precedent that mandates eviction of a rent controlled tenant based on an obsolete snapshot computation of the building’s finances. Instead, the statute calls for eviction only when there is “no reasonable possibility” that the landlord could obtain the 8V2% return. Under the circumstances, the proper action is to do exactly what Supreme Court did—remit the matter to DHCR to consider this new evidence pursuant to New York City Administrative Code § 26-411 (a) (2) and reconsider the landlord’s application for a certificate of eviction.

“Statutes are ordinarily interpreted so as to avoid objectionable consequences and to prevent hardship or injustice” (Braschi, 74 NY2d at 208). Thus the Sound Housing Act should be liberally construed to prevent unsubstantiated evictions. To effectuate this goal, DHCR has the power to revisit the issue of economic viability when the circumstances drastically change under New York City Administrative Code § 26-411 (a) (2). Despite the clear legislative goals and the inherent power of both DHCR and the courts to revisit the issue of whether the eviction is justified economically, the majority chooses to disregard the equitable and remedial nature of the statute and read into the statute a bright-line rule setting an arbitrary time frame when new evidence may be considered post final agency determination.

What the majority misconstrues is that remedial laws do not always fit squarely into a bright-line rule. By the majority’s own account, had the rent controlled tenant died one day prior to the issuance of the DHCR order, rather than on or about the day of its issuance, remittal would then be appropriate and the agency would have been compelled to consider the new evidence. This arbitrary cutoff date does nothing to enforce the rent control laws but instead undermines them by allowing another rent controlled unit to be removed from the market. Instead, due to the drastic nature of an eviction, albeit a partial eviction, the interests of the public would be better served if the court and the agency maintained and exercised its power to revisit the need for the eviction at all times prior to the actual execution of the warrant.

Indeed, our prior holdings also dictate a different result than that reached by the majority. In Matter of McMurray v New York State Div. of Hous. & Community Renewal (72 NY2d 1022 [1988]), DHCR issued a certificate of eviction against a rent control tenant after the landlord sought possession for its own use under New York City Administrative Code § 26-408 (b) (1). After the administrative proceedings and issuance of the certificate of eviction the tenant sought judicial review. During this time, the tenant became subject to the “20 year rule” which prohibits a rent controlled tenant’s eviction by the landlord for its own personal use where the tenant has resided in the apartment for 20 years or more (see Administrative Code of City of NY § 26-408 [b] [1]). The Court held that “a tenant in possession who accumulates the requisite 20 years of occupancy before the validity of a certificate of eviction is finally determined by the courts is protected from eviction” (McMurray, 72 NY2d at 1024).

Despite the finality of DHCR’s issuance of a certificate of eviction, the McMurray court found that the significant change of circumstances should be considered. Likewise, the circumstances in this instance have changed drastically since DHCR’s final order. If these changes were considered, the outcome of the application before DHCR would likely be affected as the landlord has already accomplished her goal of increasing the potential return having recouped the other rent controlled apartment. Thus, to subject petitioner to an eviction without considering this significant change offends the spirt of the remedial rent control laws.

While, of course, the need for finality in administrative determinations generally is a noble goal, drawing an arbitrary line does not serve a rational purpose here as it promotes the eviction of innocent long-term tenants from their homes. The need to preserve the affordable housing stock clearly outweighs DHCR’s need for finality in this situation as finality merely alleviates the agency’s workload but does nothing to effectuate the goals of the rent regulatory framework (cf. Matter of Dworman v New York State Div. of Hous. & Community Renewal, 94 NY2d 359 [1999] [holding that despite the statutory requirement that a tenant respond to a luxury deregulation income request within 60 days, failure to timely comply does not automatically result in vacancy decontrol if tenant has good cause for responding late]).

DHCR’s insistence on finality is also contrary to general rent regulatory eviction principles and its other remedial statutes. Under RPAPL 749 (3), for example, a court has the power to vacate a warrant of eviction at any point prior to its execution for good cause. Although this proceeding has not yet resulted in the issuance of a warrant of eviction, this analysis is demonstrative of the court’s power to prevent undue evictions. For example, had a warrant of eviction issued based on a tenant’s failure to pay rent arrears, a court could stop the eviction and vacate the judgment for good cause if the tenant paid the arrears after issuance of the warrant (cf. RPAPL 753 [4] [providing that if a landlord prevails on a holdover proceeding seeking possession of a residential premises based on a lease violation, the court must give the tenant 10 days to cure the violation before a warrant may issue]). Regardless of the inherent power of the court to stop evictions for good cause, the majority herein chooses to read the rent regulatory laws as offering less protection to the lease abiding tenant than the one who openly violates the terms of the landlord-tenant relationship.

In light of clear legislative intent and a plain language provision obligating the court to refer newly discovered relevant evidence to DHCR and further recognizing the agency’s discretion to revisit the need for the tenant’s eviction, I cannot reconcile the majority’s narrow reading of this inherently flexible remedial statute. As such, I would reverse the Appellate Division and reinstate the order of Supreme Court.

Chief Judge Kaye and Judges G.B. Smith, Graffeo, Read and R.S. Smith concur with Judge Rosenblatt; Judge Cipabick dissents and votes to reverse and reinstate the order of Supreme Court in a separate opinion.

Order affirmed, with costs.

      . The ALJ noted that an 8.5% return on the assessed 1996 valuation of the building ($140,000) would be $11,900, but that the net return from the building in 1996 was only $8,419.90. The difference between net return and an 8.5% return was therefore $3,480.10 that year.

      . In his submissions, Rizzo informed the court of Bloedow’s death but did not expressly give that as a reason for reversal and remittal or apply for leave to introduce evidence of the effect of Bloedow’s death on Crespin’s financial return from the building.

      . The trial court noted that the other unregulated unit in the building generated $34,020 in income in 1996. The court implicitly reasoned that the vacated apartment would generate similar income, which would exceed the difference between the building’s net return and an 8.5% return ($3,480.10 in 1996), and that Crespin would no longer fail to make a net annual return of 8.5% of the assessed value of her property.

      . New York City Administrative Code § 26-411 (a) (2) provides in part that when
      “application is made to the court by either party for leave to introduce additional evidence which was either offered and not admitted or which could not reasonably have been offered or included in such proceedings before the city rent agency, and the court determines that such evidence should be admitted, the court shall order the evidence to be presented to the city rent agency.”

        . The certificate of eviction grants the landlord the right to evict Rizzo from 60% of the apartment.

      . Rizzo and Bloedow occupied two out of the four units and were the only-rent controlled tenants in the building. The landlord initially sought to evict both of them from part of their apartments to create an unregulated duplex apartment.

      . The building is composed of four apartments, each occupying one floor. According to the DHCR Rent Administrator, in 1996 the unregulated ground floor apartment rented for $2,835 per month; the second floor apartment which is occupied by the owner was given a rental value of $1,850 per month; Rizzo’s third floor apartment is subject to rent control and the income generated from that apartment was $626 per month; the fourth floor apartment was subject to rent control that year and brought in income of $613.87 per month. This left the landlord with a profit margin slightly over 6%. The landlord would have had to take in an additional $290 a month to exceed the statutory 8V2%. Now that the fourth floor apartment is deregulated, Rizzo argues that the profit margin should well exceed 8xh% of the assessed value.

      . The issue of whether RPAPL 749 (3) should apply to petitioner is not before the Court as no warrant of eviction has been issued at this point.


source: Caselaw Access Project

author: R.S. Smith, J. Read, J. (dissenting).

license: Public Domain

text:
    [ 843 NE2d 727, 810 NYS2d 100]
    The People of the State of New York, Respondent, v Andrew Goldstein, Appellant.
    Argued November 16, 2005;
    decided December 20, 2005

      POINTS OF COUNSEL

      Legal Aid Society, Criminal Appeals Bureau, New York City (Natalie Rea and Laura R. Johnson of counsel), for appellant.
    I. By allowing the People’s expert forensic psychiatrist—Dr. Angela Hegarty—to testify, over objection, about statements made to her by nontestifying witnesses, the court deprived appellant of his right to confrontation and due process (1) under Crawford v Washington (541 US 36 [2004]), because the statements made during the course of interviews conducted by an agent of the state for the purpose of prosecution were inadmissible testimonial hearsay and (2) under People v Stone (35 NY2d 69 [1974]) and People v Sugden (35 NY2d 453 [1974]), because the statements of these witnesses were not of the type generally relied upon by the profession. (Pointer v Texas, 380 US 400; Ohio v Roberts, 448 US 56; Rhode Island v Innis, 446 US 291;
      United States v Saget, 377 F3d 223; United States v Cromer, 389 F3d 662; People v Coleman, 16 AD3d 254; United States v Nielsen, 371 F3d 574; People v Rogers, 8 AD 3d 888; People v Jones, 73 NY2d 427; Hambsch v New York City Tr. Auth., 63 NY2d 723.) II. Preclusion of the testimony of a defense expert psychiatrist, Dr. Susan Fierster, deprived appellant of his rights to compulsory process, to present a defense and due process because (a) counsel’s CPL 250.10 notice was adequate; (b) at the very least, the notice substantially complied with CPL 250.10; and (c) contrary to the findings of the Appellate Division, counsel could not be sanctioned for refusing to turn over Fierster’s notes if the notice was adequate. (Noble v Kelly, 246 F3d 93; Washington v Texas, 388 US 14; Ronson v Commissioner of Correction of State of N.Y., 604 F2d 176; Taylor v Illinois, 484 US 400; Wade v Herbert, 391 F3d 135; People v Berk, 88 NY2d 257; People v Oakes, 168 AD2d 893; People v Almonor, 93 NY2d 571; People v Gracius, 6 AD3d 222; People v Rivers, 281 AD2d 348.) III. By rejecting counsel’s request to have appellant undergo a PET scan because of its erroneous belief that appellant’s schizophrenia was conceded by the People, the court deprived appellant of his right to present a defense. (People v Wilder, 93 NY2d 352; People v Lewis, 69 NY2d 321; People v Wesley, 83 NY2d 417; Ake v Oklahoma, 470 US 68; People v Hills, 140 AD2d 71; People v Helms, 243 App Div 818; People v Carroll, 95 NY2d 375; People v Weinstein, 156 Misc 2d 34.)

      Robert M. Morgenthau, District Attorney, New York City (Morrie I. Kleinbart and Patrick J. Hynes of counsel), for respondent.
    I. The court properly permitted Dr. Angela Hegarty to testify about extrajudicial statements which served to explain her opinion about defendant’s mental state. (Crawford v Washington, 541 US 36; People v Stone, 35 NY2d 69; People v Sugden, 35 NY2d 453; People v Cronin, 60 NY2d 430; People v Jones, 73 NY2d 427; People v Romero, 78 NY2d 355; Ohio v Roberts, 448 US 56; People v Keough, 276 NY 141; Howard v Walker, 406 F3d 114.) II. Justice Berkman’s treatment of defendant’s belated decision to attempt to pursue an extreme emotional disturbance defense violated no constitutional norm. (People v Almonor, 93 NY2d 571; People v Edney, 39 NY2d 620; Washington v Texas, 388 US 14; Chambers v Mississippi, 410 US 284; Taylor v Illinois, 484 US 400; People v Robinson, 89 NY2d 648; Rock v Arkansas, 483 US 44; People v Williams, 81 NY2d 303; People v Berk, 88 NY2d 257, 519 US 859; People v Almonor, 93 NY2d 571.) III. Justice Berkman correctly refused to require the State of New York to fund an unnecessary PET scan. (Britt v North

      Carolina, 404 US 226; Ake v Oklahoma, 470 US 68; Ross v Moffitt, 417 US 600; Moore v Kemp, 809 F2d 702; People v Gallow, 171 AD2d 1061; People v Lane, 195 AD2d 876; Johnson v Harris, 682 F2d 49, 459 US 1041; People v Koberstein, 262 AD2d 1032; People v Oquendo, 250 AD2d 419; People v Graves, 238 AD2d 754.)
   OPINION OF THE COURT

R.S. Smith, J.

We reverse defendant’s conviction and order a new trial, because his constitutional right to be confronted with the witnesses against him was violated when a psychiatrist who testified for the prosecution recounted statements made to her by people who were not available for cross-examination.

Facts and Procedural History

On January 3, 1999, defendant killed Kendra Webdale, a woman he did not know, by throwing her into the path of an approaching subway train. He was charged with murder in the second degree; his principal defense was insanity. His first trial ended in a hung jury.

At his second trial, the two main witnesses were forensic psychiatrists, Spencer Eth, called by the defense, and Angela Hegarty, called by the prosecution. These doctors agreed that defendant was mentally ill; he had been diagnosed as schizophrenic some 10 years before the act for which he was on trial, and had been treated in a number of mental hospitals in the interim. The doctors disagreed, however, on the role that defendant’s mental illness played in the killing.

In Eth’s opinion, defendant pushed Kendra Webdale to her death “when he was suffering an acute exacerbation ... of severe psychotic symptoms,” perhaps resulting from a failure to take prescribed antipsychotic medications. Eth testified that the symptoms were so extreme that defendant “couldn’t plan, he couldn’t intend, he couldn’t know as we understand what know means what he was doing or that it was wrong.” Hegarty, by contrast, found that defendant had a “relatively mild” disorder “in the schizophrenic spectrum” and that his psychotic symptoms “were substantially in remission” at the time of the killing. Hegarty also testified that defendant’s personality had “antisocial” features that were more relevant to his act than his schizophrenia. She testified, in substance, that defendant was a predator, driven to acts of violence against women by feelings of rejection and sexual frustration, who was using his schizophrenia as an excuse for his actions. Both doctors supported their opinions by describing their own examinations of defendant and by reviewing voluminous clinical records.

The main issue on this appeal arises because Hegarty’s testimony also described another category of information—facts she had obtained in interviews of third parties. According to Hegarty, her field of expertise, “forensic psychiatry,” could be distinguished from more traditional “clinical psychiatry,” which “would largely . . . confine itself to what the defendant would say. And maybe the clinical record.” The purpose of forensic psychiatry, Hegarty testified, is “to get to the truth,” and she made clear that she believes interviews of people with firsthand knowledge are an important way of accomplishing that goal.

Over objection, Hegarty was permitted to tell the jury what she wás told by six of her interviewees. The statements thus relayed from four of these people—whom we will call John E, Kimberly D., Serita G. and Isaac V—are important to our decision.

John E was a security guard at Waldbaum’s in late 1996, about two years before the fatal attack on Kendra Webdale, when defendant assaulted a woman who was shopping there. John E restrained defendant immediately after the assault, and he described to Hegarty, who repeated to the jury, defendant’s reaction when he was seized. According to Hegarty’s account of John E’s statement, defendant said “I’m sick, I’m sick, I’m schizophrenic,” kept repeating those assertions, and said that he had just got out of the hospital. Defendant made a similar statement—“I’m psychotic, take me to the hospital,” or words to that effect—immediately after throwing Kendra Webdale to her death. John E’s statement thus supported Hegarty’s and the prosecution’s theory that defendant had repeatedly used his schizophrenia to minimize his misconduct and avoid punishment.

Kimberly D. was the girlfriend of a man who shared an apartment with defendant in November 1998—about two months before Kendra Web dale’s death—when Stephanie H., the girlfriend of another resident, visited the apartment. Hegarty testified that Kimberly D. had told Hegarty that Stephanie H., who worked in a strip club, “would tease” defendant. Hegarty also testified, apparently still recounting what Kimberly D. said to her, that Stephanie H. “bears a rather remarkable similarity [in] appearance to Kendra Webdale.” Thus, Hegarty suggested to the jury that defendant identified the woman he killed with another woman who had frustrated him sexually.

Serita G. had been defendant’s landlady twice, first in 1996 and then in 1998-1999 up to the date of Kendra Webdale’s death. According to Hegarty, Serita G. told her “that on one occasion . . . her maid went downstairs and the defendant was lying on his bed exposed and he didn’t cover himself.” This was part of the basis for Hegarty’s testimony that defendant had “been sexually inappropriate with women.”

Isaac V was one of defendant’s roommates in the month preceding Kendra Webdale’s death. Hegarty testified to Isaac Y’s description of defendant’s personality: She said that Isaac Y said that defendant was “a little weird . . . didn’t act his age . . . wanted to go to college and . . . wanted to be somebody . . . was never disrespectful and never violent and very calm.” This description corroborated Hegarty’s overall picture of defendant as someone suffering from a relatively mild mental illness, not a hopelessly out-of-control schizophrenic.

The jury convicted defendant of second degree murder, thus rejecting his insanity defense. The Appellate Division affirmed. We now reverse.

Discussion

Defendant argues that Hegarty’s testimony recounting statements of interviewees was inadmissible hearsay under New York law, because the People failed to show that the statements were information of a kind commonly relied on by members of Hegarty’s profession. Defendant also argues that the admission of the interviewees’ statements violated his constitutional right to confront the witnesses against him. We reject defendant’s New York law argument, but we agree that his right to confrontation was violated.

I

People v Stone (35 NY2d 69 [1974]) and People v Sugden (35 NY2d 453 [1974]) govern the question of when a psychiatrist’s opinion may be received in evidence, even though some of the information on which it is based is inadmissible hearsay. As we explained in Sugden, a psychiatrist “may rely on material, albeit of out-of-court origin, if it is of a kind accepted in the profession as reliable in forming a professional opinion,” or if it “comes from a witness subject to full cross-examination on the trial” (35 NY2d at 460, 461). The latter ground for admissibility does not apply here; defendant had no opportunity to cross-examine the interviewees whose statements are in issue. Defendant argues that the former ground is inapplicable also, because the prosecution failed to meet its burden of showing that the interviewees’ statements were “material ... of a kind accepted in the profession as reliable.”

We disagree. The proponent’s burden of showing acceptance in the profession may be met through the testimony of a qualified expert, whether or not that expert is the same one who seeks to rely on the out-of-court material. Here, the People’s burden was met by Hegarty’s testimony. Hegarty acknowledged that “traditionally” psychiatrists did not rely on interviews with third parties, but said that “several researchers, forensic psychiatrists, past presidents of the Academy of Psychiatry and Law, Park Dietz and Philip Resnick, for example” had emphasized the need for a broader approach. While she acknowledged that “not everybody holds this view” and that “many good forensic psychiatrists might . . . disagree,” she testified that interviewing of third parties is “becoming more and more the practice.” She added that the seeking out of facts from sources other than defendant’s own statements and the clinical record is “very, very much supported in the literature.”

Any imprecision in Hegarty’s description of accepted professional practice could have been explored on cross-examination; defendant’s counsel was free to ask Hegarty, for example, exactly what “literature” she was referring to, and to try to show it did not support her procedure. But Hegarty’s statements on this issue were neither made the subject of cross-examination nor contradicted by any other evidence. Indeed, Eth acknowledged that Hegarty’s preferred approach was accepted by some reputable professionals, though he said they were a “minority.” The prosecution did not have to prove that the materials in question were universally accepted; widespread acceptance by professionals of good reputation is enough. The case would be different if the procedures at issue found support only among a faction of outliers not generally respected by their colleagues. But in this case, the trial court had a sufficient basis for finding that the third-party interviews were material of a kind accepted in the profession as reliable, and that therefore Hegarty’s opinion was admissible under Stone and Sugden.

II

To avoid any misinterpretation of our holding, we point out the existence of a New York law issue that the parties have not addressed and we do not reach.

We have held in section I only that Hegarty’s opinion, although based in part on statements made out of court, was admissible because those statements met the test of acceptance in the profession. Both parties seem to assume that, if that test was met, Hegarty was free, subject to defendant’s constitutional right of confrontation, not only to express her opinion but to repeat to the jury alí the hearsay information on which it was based. That is a questionable assumption.

Stone and Sugden were concerned with the admissibility of a psychiatrist’s opinion, not the facts underlying it. There is no indication in either case that the prosecution sought to elicit from the psychiatrist the content of the hearsay statements he relied on. And it can be argued that there should be at least some limit on the right of the proponent of an expert’s opinion to put before the factfinder all the information, not otherwise admissible, on which the opinion is based. Otherwise, a party might effectively nullify the hearsay rule by making that party’s expert a “conduit for hearsay” (Hutchinson v Groskin, 927 F2d 722, 725 [2d Cir 1991]).

The distinction between the admissibility of an expert’s opinion and the admissibility of the information underlying it, when offered by the proponent, has received surprisingly little attention in this state (which perhaps accounts for the parties’ failure to discuss it here). We have found no New York case addressing the question of when a party offering a psychiatrist’s opinion pursuant to Stone and Sugden may present, through the expert, otherwise inadmissible information on which the expert relied. The issue of when a proponent may present inadmissible facts underlying an admissible opinion has, however, been discussed by courts in other jurisdictions, and in many law review articles (see authorities cited in Kaye et al., The New Wigmore: Expert Evidence § 3.7 [2004]). And in 2000, rule 703 of the Federal Rules of Evidence (“Bases of Opinion Testimony by Experts”) was amended to deal with this issue. The last sentence of the rule now provides: “Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.” We are not called upon to decide here, and do not decide, whether the New York rule is the same as, or less or more restrictive than, this federal rule.

III

The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him.” Similarly, article I, § 6 of the New York Constitution provides: “In any trial in any court whatever the party accused shall. . . be confronted with the witnesses against him or her.” The meaning of the federal Confrontation Clause was recently considered by the United States Supreme Court in Crawford v Washington (541 US 36 [2004]), and we conclude that Crawford requires reversal of defendant’s conviction.

Crawford, which overruled Ohio v Roberts (448 US 56 [1980]), establishes that the Confrontation Clause generally prohibits the use of “testimonial” hearsay against a defendant in a criminal case, even if the hearsay is reliable, unless the defendant has a chance to cross-examine the out-of-court declarant. The People contend that Crawford does not apply here, first, because the statements by Hegarty’s interviewees were not hearsay, and secondly, because they were not testimonial. We reject both arguments.

The claim that the interviewees’ statements to Hegarty were not hearsay is based on the theory that they were not offered to prove the truth of what the interviewees said. Hearsay is “a statement made out of court . . . offered for the truth of the fact asserted in the statement” (People v Romero, 78 NY2d 355, 361 [1991], quoting Richardson, Evidence § 200, at 176 [Prince 10th ed]). The Supreme Court said in Crawford that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted” (541 US at 59 n 9). Here, according to the People, the interviewees’ statements were not evidence in themselves, but were admitted only to help the jury in evaluating Hegarty’s opinion, and thus were not offered to establish their truth.

We find the distinction the People make unconvincing. We do not see how the jury could use the statements of the interviewees to evaluate Hegarty’s opinion without accepting as a premise either that the statements were true or that they were false. Since the prosecution’s goal was to buttress Hegarty’s opinion, the prosecution obviously wanted and expected the jury to take the statements as true. Hegarty herself said her purpose in obtaining the statements was “to get to the truth.” The distinction between a statement offered for its truth and a statement offered to shed light on an expert’s opinion is not meaningful in this context. (See Kaye et al., The New Wigmore: Expert Evidence § 3.7, at 19 [Supp 2005] [“(T)he factually implausible, formalist claim that experts’ basis testimony is being introduced only to help in the evaluation of the expert’s conclusions but not for its truth ought not permit an end-run around a Constitutional prohibition”].) We conclude that the statements of the interviewees at issue here were offered for their truth, and are hearsay.

We also conclude that the statements are testimonial, in the sense that Crawford used that term. Crawford explained that the Confrontation Clause “applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’ ” (541 US at 51.) The Court added: “ ‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ . . . An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” (Id. [citation omitted].) The Court in Crawford did not adopt a definition of testimonial hearsay, but it offered some alternative definitions:

“Various formulations of this core class of ‘testimonial’ statements exist: ‘ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, ’ . . . ‘extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,’ . . . ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial’.... These formulations all share a common nucleus and then define the Clause’s coverage at various levels of abstraction around it.” (Id. at 51-52 [citations omitted].)

We think the statements made to Hegarty by her interviewees were testimonial. Hegarty was an expert retained to testify for the People. The record does not specifically show that the interviewees knew this, but it would be strange if Hegarty did not tell them; we infer that they knew they were responding to questions from an agent of the State engaged in trial preparation. None of them was making “a casual remark to an acquaintance”; all of them should reasonably have expected their statements “to be used prosecutorially” or to “be available for use at a later trial.”

While it is true that the Supreme Court referred, in describing testimonial hearsay, to “formal” statements made to “government officers,” we do not think that these words exclude the statements at issue here. Responses to questions asked in interviews that were part of the prosecution’s trial preparation are “formal” in much the same sense as “depositions” and other materials that the Supreme Court identified as testimonial. Crawford itself shows that the statements need not be under oath and need not be formal in their language; the statement held excludable by the Crawford court was unsworn and used colloquial phrasing (see 541 US at 38-39). Nor do we think the difference between an expert retained by the State and a “government officer” is of constitutional significance here. The Confrontation Clause would offer too little protection if it could be avoided by assigning the job of interviewing witnesses to an independent contractor rather than an employee.

In short, defendant’s rights under the Confrontation Clause were violated when Hegarty was allowed to tell the jury what witnesses defendant had no chance to cross-examine had said to her.

IV

The People argue that, if the admission of the interviewees’ statements was error, the error was harmless. We cannot agree.

Since the error was a violation of defendant’s constitutional rights, the constitutional test for harmless error applies: The People must show that any error was harmless beyond a reasonable doubt (Chapman v California, 386 US 18, 24 [1967]; People v Crimmins, 36 NY2d 230, 240-241 [1975]). In deciding whether the People have met this burden, we consider both the overall strength of the case against defendant and the importance to that case of the improperly admitted evidence.

The People’s case that defendant was sane when he killed Kendra Webdale was a strong one, but we cannot say it was so strong that no rational jury could have rejected it. The question before the jury was, in essence, what was going on in defendant’s admittedly diseased mind at the time he committed a bizarre, horrifying act; this is not an easy question to answer with complete certainty. In other contexts—for example, when the question is whether a defendant committed a particular act or not—overwhelming evidence will sometimes permit a court to say that only one verdict was reasonably possible. This case is not of that kind.

The People’s case drew some significant support from the improperly admitted statements of John R, Kimberly D., Serita G. and Isaac V It is true that these statements were by no means vital to the People’s case on sanity, but they were not trivial either. It is reasonably possible that any of the four—and, a fortiori, all four together—could have affected the jury’s verdict. Specifically:

1. John P’s statement to the effect that defendant, upon being seized after the Waldbaum’s incident, said repeatedly “I’m sick, I’m sick, I’m schizophrenic” supported an important theme of the prosecution’s case—that defendant thought his schizophrenia was an excuse for his bad behavior. The resemblance of the remarks described in John P’s statement to those made by defendant after killing Kendra Webdale—“I’m psychotic, take me to the hospital”—strongly suggests a pattern. The prosecution’s claim that these protestations showed defendant was hiding behind his mental illness was a major theme in closing argument. Indeed, the prosecutor’s last words to the jury were: “He’s counting on you to buy, I am sick, take me to a hospital.”

It is true that the prosecutor did not rest this argument entirely on John P’s statement; the prosecutor relied primarily, of course, on the statement defendant made after the Kendra Webdale killing, and also on other more or less similar remarks he made after other incidents. There is a real possibility, however, that without John P’s statement the argument would not have been as strong. There is no clearer proof in the record that defendant had, before his attack on Kendra Webdale, made a habit of announcing his mental illness the moment he got in trouble.

2. Kimberly D.’s statement that there was a “remarkable” resemblance between Stephanie H., a young woman who “tease[d]” defendant, and Kendra Webdale could well have had an impact on the jury. It offers a possible explanation for defendant’s otherwise inexplicable decision to attack a total stranger on a subway platform, and suggests that, however distorted his reasoning, he acted out of rage, knew he was killing someone, and thus was not legally insane. It is true, as the People point out, that Stephanie H.’s teasing of defendant was proved by other evidence, and that photographs of both Stephanie H. and Kendra Webdale were in evidence, so that perhaps Hegarty could have made her point without relying on Kimberly D.; but Hegarty did not do so, and we cannot be sure she would have done so successfully. From the photographs alone, the jury might or might not have found the resemblance between the two women to be striking.

3. Serita G.’s statement that defendant, lying exposed on his bed, failed to cover himself when a woman came into his presence was used by Hegarty as one example of inappropriate behavior that reflected defendant’s sexual frustration. It was not Hegarty’s only example, but it was a vivid and memorable one; we cannot say, beyond a reasonable doubt, that it had no effect on the jury.

4. Isaac V’s sketch of defendant’s personality (“a little weird”) was useful to the prosecution because it supported Hegarty’s overall portrayal of defendant as someone with a “relatively mild” mental disorder, not a raving psychotic. Again, it is true that Hegarty could have made the same point without relying on Isaac V’s statement, but it is also true that the statement might have had significant impact. It is reasonably possible that jurors found the observations of someone who saw defendant frequently at the very time of the Kendra Webdale killing to be telling evidence of defendant’s mental state.

In sum, the People have failed to show beyond a reasonable doubt that the mistaken admission of these four out-of-court statements was harmless error.

V

Defendant makes two other arguments on this appeal: He contends that the trial court erred in precluding the testimony of a defense expert proffered to support a defense of extreme emotional disturbance, and in refusing to order a PET scan of defendant. To avoid unnecessary issues at a retrial, we mention that we find both arguments lacking in merit. On the facts of this case, the trial court’s rulings on both issues were within its discretion.

VI

We have concluded that another trial of this case is necessary. We are well aware of the unwelcome consequences of this result. Defendant has already been tried twice, and the second jury found, on sufficient evidence, that he was legally sane at the time of his act. We are troubled by the tangible cost of a third trial, and by the intangible cost of the long delay in resolving this case. We are yet more troubled by the knowledge that another trial will bring added pain to innocent people, particularly to the family of Kendra Webdale.

But the constitutional rules that guarantee defendants a fair trial must he enforced, and few such rules are more important than the one that guarantees defendants the right to confront the witnesses against them. Because that right was violated in this case, defendant is entitled to be tried again.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to Supreme Court for a new trial.

Read, J. (dissenting).

Crawford v Washington (541 US 36 [2004]) is a fresh precedent, the contours and limits of which are still indistinct. At this early stage, it is difficult to predict whether the Supreme Court will apply Crawford—universally or in some cases or with limitations or at all—to hearsay used as a basis for expert testimony, much less the exact implications of any such holding. Still, the majority’s analysis of this case in relation to Crawford is reasonable, and I do not disagree with it. Further, I wholeheartedly agree with section II of the majority opinion, which points out a New York law issue that is, in my view, significant, but which we need not reach here. I respectfully dissent, however, because, even assuming that Crawford precludes admission of the four remarks made by interviewees to the People’s expert, I cannot agree that defendant suffered any harm as a result.

As an initial matter, we should keep in mind that this trial presented no issue regarding guilt per se. Defendant indisputably killed Kendra Webdale by thrusting her into the path of an oncoming subway train. The only issue at trial was whether defendant had established, by a preponderance of the evidence, his affirmative defense that he should not be held criminally responsible for his conduct because he suffered from a mental disease or defect at the time of the killing (see Penal Law § 40.15). Specifically, defendant wanted the jurors to accept that he killed Ms. Webdale while in the throes of what his primary expert, Dr. Spencer Eth, during direct examination called a “sudden psychotic act.”

According to Dr. Eth, defendant murdered Ms. Webdale “when he was suffering an acute exacerbation of sudden intensification of severe psychotic symptoms and his brain was not functioning[, which meant that] his motor control—he could walk, he could thrust out his arms, he could see, but he couldn’t think, he couldn’t plan, he couldn’t intend, he couldn’t know as we understand what know means what he was doing or that it was wrong.” During cross-examination, Dr. Eth denied describing the incident as a “sudden psychotic moment,” and declined to characterize it as a “sudden psychotic attack,” although he essentially had testified to this effect. As an alternative description of his diagnosis, he offered that, at the moment of the killing, “a ferocious torrence [sic] of symptoms overwhelmed [defendant’s] mind,” thereby precluding him from planning or “executing] an action with reason and intent.”

Another of defendant’s experts, Dr. Wilfred Van Gorp, provided similar testimony, telling the jurors that he agreed with Dr. Eth’s conclusion that defendant suffered a “transient episode of extreme psychotic symptomology that destroyed his capacity to appreciate the nature and consequences of his conduct and to appreciate that his conduct was wrong.” Both experts opined that the “transient episode” essentially began directly before and ended almost immediately after the killing—a “symptomatic exacerbation while on the station platform.”

But defendant’s expert testimony, which hinged on defendant’s supposed inability to intend or plan, ran directly counter to the prior testimony of witnesses to the crime, who described how defendant had engaged in seemingly meticulous planning. According to eyewitness testimony, before approaching the blond Ms. Webdale and immediately after being rebuffed by another blond woman, defendant walked to the front of the subway platform, the best vantage point from which to see a train entering the curved station. Bending over, defendant peered up the tracks, concededly looking for the headlights of an oncoming train. He then walked back towards Ms. Webdale, who was standing near the platform’s edge, and asked her the time. Following Ms. Webdale’s response, defendant positioned himself directly behind her, standing with his back to the wall of the station. Notably, he chose to stand behind Ms. Webdale rather than the other blond woman, who was taller and heavier. As the train proceeded through the station, defendant rushed forward and shoved Ms. Webdale at the precise moment when she would pitch headlong into the train’s path without any chance to save herself or be rescued. Despite having moved with great force (he pushed off from the back wall), defendant had sufficient presence of mind to break his momentum and avoid sharing Ms. Webdale’s fate by twisting his body away from the platform’s edge. As the trial prosecutor told the jurors during summation, “actions speak louder than words.”

This description of events by the People’s fact witnesses, which defendant did not challenge, contradicted the defense experts’ assertions that a theorized “acute exacerbation” prevented defendant from planning or intending. Another facet of the attack also undermined defendant’s supposed inability to comprehend that his conduct was wrong. Immediately after killing Ms. Webdale, he announced “I’m sick,” and asked to be taken to a hospital, which displayed his understanding that he indeed had done something wrong and needed an excuse to negate his blameworthiness.

In addition to the facts of the murder, the People also refuted defendant’s affirmative defense with the testimony of their rebuttal experts. These experts attacked the legitimacy of the defense theory that defendant had acted while experiencing a fleeting psychotic disorder or “transient episode,” and they did so independently of the four challenged observations. Specifically, Dr. Angela Hegarty explained to the jurors that, according to the Diagnostic and Statistical Manual of Mental Disorders (DSM), the standard classification of mental disorders used by mental health professionals in the United States, psychotic symptoms simply do not rapidly appear and disappear as defendant’s supposedly did while he stood on the subway platform. Rather, the DSM makes clear that the shortest duration for a brief psychotic disorder is one day. Dr. William Bryon Barr, the People’s other expert, offered similar testimony.

Although defendant adduced expert testimony that consumed thousands of pages of trial transcript (as did the People), that, standing alone, does not compel a conclusion that he proffered such a strong case that the error here could not have been harmless. As we have noted,

“before constitutional error . . . may be found to be harmless, it is not necessary that the untainted evidence on which the verdict in the case must be supported demonstrate undisputable guilt. Rather, the reasonable doubt standard, extremely high though it is, still leaves room for judgmental determination of harmlessness” (People v Schaeffer, 56 NY2d 448, 455 [1982]).

In other words, a court engaging in harmless error review should center its analysis not on the quantity of the evidence adduced, but rather on its quality (see id. [“because consideration of whether an error is harmless requires an evaluation not only of the tainted matter, but of the strength of the case absent the taint, the court must focus on the reliability and persuasiveness of the untainted matter and its source. ... In short, neither side of the evidentiary equation may be ignored; in the end, the picture must be seen as a whole”]).

Significantly, the trial court instructed the jurors to engage in a similar inquiry, explaining that defendant had to prove that he “was not criminally responsible” by “a preponderance of the credible evidence [, which] is evidence which you find worthy of belief.” The court amplified its instruction by stating that defendant would meet his burden if “you, the jury, are satisfied that the evidence of lack of criminal responsibility, from whatever source, outweighs and is more convincing than the evidence that he was criminally responsible when he committed the crime.” Finally, the jurors were informed that “[a]s with any other factual issue, it is the quality of the evidence which controls, not the number of witnesses on one side or the other.” Ultimately, defendant’s criminal responsibility does not seem to have presented a close case in the minds of the jurors. They deliberated for no more than two hours, during which they apparently lunched as well. The jurors sent no notes. Clearly, no problematic issues arose during these brief deliberations. I find it impossible to believe that in those two hours, the jurors were only able to dismiss defendant’s “transient episode” theory by focusing on the four isolated comments cited by the majority. Far more likely, the jurors readily rejected what they must have viewed as a rather outlandish defense theory, unsupported as it was in fact or professional literature.

Evaluating the “importance” of the four comments to the case, however, the majority concludes that the People “drew some significant support” from them (majority op at 129, 130). But even assuming that the jurors, like the majority, zeroed in on these four comments, they were generally duplicated or corroborated by other evidence in the record, thereby diminishing their hypothesized potential significance to the jurors’ deliberations. For example, the majority asserts that the record contains “no clearer proof’ of defendant’s “habit of announcing his mental illness the moment he got in trouble” (majority op at 130) than John E’s statement that, after attacking a woman at a Waldbaum’s supermarket, defendant repeated “I’m sick, I’m sick, I’m schizophrenic.” As the majority acknowledges, however, there is evidence in the record that defendant made similar statements following other instances of aggressive behavior. And John E’s statement is not disputed. Defendant’s primary expert, Dr. Eth, acknowledged on cross-examination that defendant announced to John E that he was sick and a psychiatric patient, and begged him not to call the police. As for Kimberly D.’s apparent observation that Kendra Webdale bore a “rather remarkable” resemblance to another woman, Stephanie H., who had teased defendant, the jury heard from another witness that both women were blond, and that Stephanie H. had teased defendant. Moreover, as the majority points out, Stephanie H.’s and Kendra Webdale’s photographs were admitted into evidence. As a result, the jurors were free to make their own judgment about any resemblance between the two women, assuming they found this important, and either to credit or discount Dr. Hegarty’s testimony accordingly. It is also worth noting that Dr. Hegarty testified that while interviewing defendant, she mentioned Stephanie H. inadvertently, and defendant became visibly sexually aroused. This speaks far more powerfully to “inappropriate behavior that reflected defendant’s sexual frustration” (majority op at 131) than does the third challenged observation by Serita G. that defendant, naked on a bed, did not cover up when her maid entered his room. Finally, Issac V’s statement that, close in time to the killing, defendant appeared “a little weird,” is, if anything, innocuous. True, the People’s experts opined that defendant had a “relatively mild” mental disorder. But defendant’s “transient episode” theory also called for him to act relatively normally immediately preceding the attack.

In short, I see no possibility that the four hearsay comments caused the jurors to reject defendant’s affirmative defense. Rather, his defense was subverted by the incredible nature of his psychiatric theory coupled with his uncontested actions, which contradicted any “transient” loss of control or comprehension. Because any Crawford error that occurred here was harmless beyond a reasonable doubt (see Chapman v California, 386 US 18, 24 [1967]; People v Crimmins, 36 NY2d 230, 240-241 [1975]), defendant’s conviction should be affirmed.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt and Graffeo concur with Judge R.S. Smith; Judge Read dissents and votes to affirm in a separate opinion.

Order reversed, etc.

       From the transcript, it is not entirely clear to me whether Dr. Hegarty was testifying that Kimberly D. told her that Stephanie H. and Kendra Web-dale resembled each other, or was offering her own view on this subject. After Dr. Hegarty testified that Kimberly D. told her that Stephanie H. teased defendant, defense counsel objected based on the “right to confrontation,” and the trial court overruled the objection. Then the prosecutor asked Dr. Hegarty two questions about Stephanie H. (her last name and occupation). After Dr. Hegarty answered these two questions, the prosecutor asked her “And did you learn anything about [Stephanie H.’s] general appearance?” to which Dr. Hegarty responded “Yes. She bears a rather remarkable similarity and appearance to Kendra Webdale.” In context, the prosecutor might having been asking Dr. Hegarty if she had learned this information about Stephanie H.’s general appearance from Kimberly D., but this is far from certain, especially since Dr. Hegarty surely had access to the photographs of both women. Defense counsel did not object to the question or answer about Stephanie H.’s “general appearance,” which were followed by Dr. Hegarty’s testimony about defendant’s reaction when she inadvertently mentioned Stephanie H. to him during an interview.