author: Chief Judge Lippman. Abdus-Salaam, J.

text:
    [18 NE3d 359, 993 NYS2d 648]
    Village of Ilion et al., Plaintiffs, and Village of Herkimer, Appellant, v County of Herkimer, Individually and as Administrator of the Herkimer County Self-Insurance Plan, Respondent, et al., Defendants.
    Argued March 27, 2014;
    decided May 1, 2014

      POINTS OF COUNSEL

      Longstreet & Berry, LLP, Syracuse (Martha L. Berry and Michael J. Longstreet of counsel), for appellant.
    I. Future damages should have been discounted to present value. (Toledo v Iglesia Ni Christo, 18 NY3d 363; Greenburgh Eleven Union Free School Dist. v National Union Fire Ins. Co. of Pittsburgh, PA, 304 AD2d 334; Admae Enters. v 1000 N. Blvd. Corp., 104 AD2d 919; Dunn v Consolidated Rail Corp., 125 AD2d 228; Ammar v United States, 342 F3d 133; Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523; Ramirez v New York City Off-Track Betting Corp., 112 F3d 38; Randall-Smith v 43rd St. Estates Corp., 17 NY2d 99.) II. Prejudgment interest should not have been awarded on future damages. (155 Henry Owners Corp. v Lovlyn Realty Co., 231 AD2d 559; Milbrandt v Green Refractories Co., 79 NY2d 26; Pay v State of New York, 87 NY2d 1011; Krumenacker v Gargano, 276 AD2d 750; Moorer v City of New York, 272 AD2d 79; Randall-Smith v 43rd St. Estates Corp., 17 NY2d 99.) III. The trial court’s decision to refuse to allow discounting and to award prejudgment interest on undiscounted future damages was punitive. (Toledo v Iglesia Ni Christo, 18 NY3d 363.) IV Prejudgment interest should not have been awarded from December 31, 2005. (Rapid Tr. Subway Constr. Co. v City of New York, 259 NY 472; Smith v Board of Educ. of City of N.Y., 208 NY 84; O’Keeffe v City of New York, 176 NY 297; Sweeny v City of New York, 173 NY 414; Taylor v Mayor, 67 NY 87.)

      Hinman, Howard & Kattell, LLP, Binghamton (Albert J. Millus, Jr., of counsel), for respondent.
    I. The trial court properly determined that, under the unique circumstances of this matter, the jury should not reduce the amounts of its verdict. (United States v Bowler, 252 F3d 741; Matter of Aides At Home, Inc. v State of N.Y. Workers’ Compensation Bd., 76 AD3d 727; Pikas v Town of Grand Is., 106 AD2d 887; Matter of Peachtree Settlement Funding, LLC v Ramirez, 38 Misc 3d 1202[A], 2012 NY Slip Op 52330[U]; Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523; Ammar v United States, 342 F3d 133; Ramirez v New York City Off-Track Betting Corp., 112 F3d 38; Toledo v Iglesia Ni Christo, 18 NY3d 363; Pay v State of New York, 87 NY2d 1011; Greenburgh Eleven Union Free School Dist. v National Union Fire Ins. Co. of Pittsburgh, PA, 304 AD2d 334.) II. The lower courts properly awarded prejudgment interest on the undiscounted verdict amounts. (Jemzura v Jemzura, 36 NY2d 496;
      Anesthesia Group of Albany v State of New York, 309 AD2d 1130; Bourke v Albany Med. Ctr., 176 AD2d 1028; United States Fire Ins. Co. v Federal Ins. Co., 858 F2d 882; Gellman v Hotel Corp. of Am., 46 Misc 2d 521; 155 Henry Owners Corp. v Lovlyn Realty Co., 231 AD2d 559; Milbrandt v Green Refractories Co., 79 NY2d 26; Pay v State of New York, 87 NY2d 1011; Moorer v City of New York, 272 AD2d 79; Krumenacker v Gargano, 276 AD2d 750.) III. The trial court’s award of prejudgment interest was not “punitive.” IV. The courts below properly awarded interest from December 31, 2005. (Acme Bldrs. v County of Nassau, 36 AD2d 317, 31 NY2d 924; Taylor v Mayor, 67 NY 87; Rapid Tr. Subway Constr. Co. v City of New York, 259 NY 472; O’Keeffe v City of New York, 176 NY 297; Zeiser v Cohn, 207 NY 407.)
   OPINION OF THE COURT

Chief Judge Lippman.

The primary issue in this breach of contract action is whether a municipality’s liability upon withdrawing from a county self-insurance fund should have been discounted to present value. Under the circumstances presented, we hold that the withdrawal fee reflected benefits to be paid in the future and therefore should have been discounted to its current value as of the date it was due.

The case arises out of a dispute over the administration of a workers’ compensation self-insurance plan (Plan) administered by defendant-respondent Herkimer County (County). In 1956, the County created the Plan pursuant to article 5 of the Workers’ Compensation Law. By 2005, the participants included 32 cities, towns, and villages, including plaintiff Village of Herkimer (Village). The terms of the Plan were dictated by local law (see Local Law No. 2 [2005] of County of Herkimer; Local Law No. 4 [1995] of County of Herkimer). Rather than purchasing private insurance, the participants pooled their funds to administer and pay for all of their workers’ compensation claims. Each year the Plan administrator estimated the Plan’s costs for the upcoming year and apportioned them among the participants. The apportionment was based on a formula contained in the Plan, which, following the adoption of a 1978 amendment, was based partially on the property taxes levied by each municipality, and partially on a valuation of each participant’s workers’ compensation claims.

Participants in the voluntary Plan could withdraw at the end of any calendar year by giving notice of withdrawal by the preceding July 1 and by paying “an equitable share of the outstanding liabilities of the plan as of the date of withdrawal” (Workers’ Compensation Law § 65 [1]; see also Local Law No. 4 [1995] of County of Herkimer). Although neither the Plan nor the Workers’ Compensation Law provided a mechanism for determining the Plan’s “outstanding liabilities,” the Plan followed the standard practice in the insurance industry of obtaining an actuarial assessment, also known as a reserve analysis. So, for example, when the Town of Webb gave notice in 2003 of its intention to withdraw from the Plan, the County hired an actuarial firm to estimate the Plan’s liabilities as of June 30 of that year. The 2003 reserve analysis estimated the total “projected liabilities” at almost $8.9 million, on an “undiscounted basis.” The report also provided examples of “discounted liabilities” tied to various interest rates, including approximately $7.7 million (2% interest rate), $7.3 million (3%), and $6.9 million (4%). The 2003 reserve analysis explained the basis for the discounted amounts as follows:

“The timing of payments and the time value of money are reflected in the discounted values .... The effect of investment income is determined by applying a payout pattern and an assumed interest rate to projected ultimate loss, [expenses] and assessments in order to calculate anticipated payments in future periods. The payments are then discounted to [the date of withdrawal].”

The Town of Webb decided not to withdraw in 2003 but reversed course in 2004 and, along with the Town of Salisbury, gave notice of withdrawal effective December 31, 2004. Another reserve analysis was commissioned, and the estimated liabilities dramatically increased to about $17.2 million. Like the 2003 analysis, the 2004 report referred to the assessed amount as “undiscounted” and provided examples of discounted totals, based on interest rates ranging from one to five percent.

Due to concern over rising costs, in June 2005 the County passed a resolution to terminate the Plan pursuant to Workers’ Compensation Law § 73, effective December 31, 2005 (Local Law No. 2 [2005] of County of Herkimer). The Plan would take on no new claims after that date, but would remain in existence to fund the approximately 125 outstanding workers’ compensation claims, known as “tail claims.” In order to ensure funding for the tail claims, the County created an abandonment plan (Abandonment Plan) that gave member municipalities two choices. They could either remain as participants in the Abandonment Plan and pay an annual assessment of their portion of the tail claim liabilities, or they could withdraw from the Plan and pay a lump sum withdrawal fee. The lump sum fee, due at the end of the calendar year, would reflect the withdrawing member’s equitable share of the Plan’s outstanding liabilities according to the final annual estimate prior to abandonment. The final reserve analysis would assess the Plan’s future losses as of December 31, 2005 (2005 Reserve Analysis).

In October 2005, seven of the participating municipalities, including the Village, instituted the instant action, challenging the Plan and the Abandonment Plan based on alleged mismanagement by the County. The County answered and, insofar as relevant here, raised counterclaims for breach of contract, seeking to recover the withdrawal liability based on the 2005 Reserve Analysis.

In June 2006, while the litigation was pending, the 2005 Reserve Analysis was released. The report estimated the Plan’s outstanding liabilities as of December 31, 2005 to be $18.4 million on an undiscounted basis, an increase of $1.2 million from the previous year. The Village’s share was calculated as approximately $1.6 million.

At this point, the Plan had run out of money and had resorted to borrowing funds from the County to keep up with payments on the tail claims. Given the dire situation, in October 2006 the County adopted a resolution allowing withdrawing municipalities to pay 75% of their withdrawal liability in full satisfaction of their obligations under the Abandonment Plan. Four of the seven plaintiffs in the lawsuit took the settlement offer, but the Village, along with two other municipalities, declined.

As relevant to this appeal, the County prevailed on summary judgment as to liability on its counterclaim for breach of contract against the Village. At the ensuing jury trial on damages, the parties presented extensive evidence on the actuarial methods underlying the reserve analyses. There was also testimony regarding various discount rates for the Plan liabilities contained in the reports. Witnesses for the County testified that the $18.4 million assessment in the 2005 Reserve Analysis represented an undiscounted liability and that examples of discount percentages ranged from one to five percent. A former executive director of the State Insurance Fund (SIF) testified that the State requires the SIF to apply a discount rate of five percent. Over the Village’s objection, the jury was provided with a verdict form that did not allow for any damages discount. The jury returned a verdict in favor of the County and awarded the full amount of damages sought by the County against the Village, $1,617,528. This figure represented the Village’s undiscounted withdrawal liability as of December 31, 2005. Judgment was entered against the Village for $2,451,108.87, including $833,580.87 in prejudgment interest on the undiscounted verdict. The two other municipal plaintiffs did not perfect their appeals.

On the Village’s appeal, the Appellate Division affirmed, concluding, in pertinent part, that discounting was inappropriate because “the County’s award of damages did not actually constitute compensation for future losses; by its verdict, the jury found that plaintiff owed the County $1,617,528 as of December 31, 2005, a sum that it thereafter wrongfully withheld” (Village of Ilion v County of Herkimer, 103 AD3d 1168, 1169 [4th Dept 2013]). We granted leave to appeal (21 NY3d 857 [2013]), and now modify.

Generally, discounting future damages to their value at some point in the past is appropriate because it takes into account the time value of money. “[W]hen an amount intended to compensate for a future loss is discounted back to a particular time, the discounted amount represents the sum which, if invested at that time at reasonable rates of return, would theoretically produce the intended amount at the future time when the loss is incurred” (Milbrandt v Green Refractories Co., 79 NY2d 26, 35 [1992]; see also Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 536-537 [1983]). We are perhaps most familiar with discounting in wrongful death, personal injury, and medical malpractice actions, where discounting is required by statute (see CPLR 5031, 5041). In those contexts, it is often the future earning power of the injured party, or a similar measure of future damages, that must be reduced to its value on the date of injury. However, there is no material difference between the value of a decedent’s future income in a wrongful death case and the value of workers’ compensation benefits to be paid out over the life of a disability claim. In both cases, some or all of the losses will be incurred in the future. Here, the injury in question is a breach of contract, and the future losses manifest themselves in the form of contract damages.

It is undisputed that the Abandonment Plan constituted a contract between the County, as Plan administrator, and the municipalities, as participants. The contract provided that if a participant chose to withdraw from the Abandonment Plan, it would have to pay a lump sum reflecting its equitable share of the Plan’s outstanding liabilities, as of the date of withdrawal. To determine the amount due, the contract incorporated by reference “the final annual estimate and apportionment of costs prior to the abandonment of the Plan,” i.e., the reserve analysis for the participant’s last year of membership. In the Village’s case, this was the 2005 Reserve Analysis since, by refusing to pay and initiating litigation, the Village effectively withdrew from the Plan on December 31, 2005 and became liable for the lump sum withdrawal fee.

The County contends, and the courts below agreed, that the $1.6 million assessed against the Village in the 2005 Reserve Analysis represents a liquidated sum due upon withdrawal from the Plan and thus should not be discounted. But the purpose of the withdrawal fee was to provide the County with sufficient funds to dole out future benefits to tail claim beneficiaries. According to the County, many of those benefits would be disbursed over 30, 40 or even 50 years. The actuarial estimate of each municipality’s withdrawal liability therefore represented its aggregate future liability for existing claims. As the County concedes, those amounts were not discounted to present value.

Indeed, the 2005 actuarial report expressly stated that “[t]he Plan’s total liability of $18.4 million [did] not reflect the fact that future benefits will be paid out over time and interest can be earned if the liabilities are prefunded.” The report further provided examples of “discounted liabilities” to account for “[t]he timing of payments and the time value of money.” For instance, the Reserve Analysis estimated that, at a 1% rate of return, the $18.4 million should be discounted to $16.7 million. At the other extreme, the report calculated that, on December 31, 2005, the Plan’s outstanding liabilities would be worth $12.5 million if invested at a 5% interest rate. By its own terms, the report thus refutes the County’s argument that the $1.6 million figure constituted a liquidated sum due upon withdrawal. Rather, the $1.6 million represents the Village’s share of the Plan’s estimated aggregate future losses. To require the Village to pay the undiscounted amount would give the County an impermissible windfall (see generally Toledo v Iglesia Ni Christo, 18 NY3d 363, 368 [2012]; see also Workers’ Compensation Law § 65 [1]).

The County nonetheless argues that the realities of the situation make discounting inequitable. The County points to the difficulties of making accurate projections in light of the many variables and unreliable assumptions inherent in actuarial analysis. The County also notes that the 2005 report qualified its examples of discounted liabilities, explaining that they were

“provided for informational purposes only. In practice, in order for a discounted liability amount to be appropriate, the Plan would need to have sufficient assets available for investment to prefund the liabilities. Further, the actual interest rate achievable by the Plan would need to be recognized.”

In other words, discounting assumes the payee will earn a return on an investment and is therefore inappropriate when no such investment is feasible. Therefore, the County asserts that the concept of discounting is inapplicable here due to the Plan’s insolvency.

The County’s arguments highlight the unique circumstances of this case. It is possible that the factors identified by the County could affect the appropriate discount rate. However, ultimately this is an action for breach of contract. The contract at issue, the Abandonment Plan, was drafted by the County and provided that the withdrawal liability would be determined by the 2005 Reserve Analysis. In turn, the Reserve Analysis calculated each member’s share based on undiscounted, aggregate future losses. Any inherent uncertainty in that assessment does not alter the terms of the contract. Furthermore, to the extent the Abandonment Plan contains any ambiguity as to the amount of the Village’s withdrawal liability, it should be construed against the drafter, Herkimer County. Had the County chosen to expressly define the withdrawal liability as an undiscounted, gross sum, rather than referring to the assessments in the Reserve Analysis, our result might be different. As it stands, the contractual liability, defined in the statutes, the Abandonment Plan, and the 2005 Reserve Analysis, encompasses future damages. Discounting is therefore appropriate.

The parties also dispute the date from which the preverdict interest should be calculated. The County agrees with the conclusion of the courts below that the interest should run from December 31, 2005, when the withdrawal payment became due. The Village, on the other hand, proposes two alternative dates: June 1, 2006, when the 2005 Reserve Analysis was released, or January 21, 2008, when the County asserted its counterclaims for breach of contract.

Preverdict interest “shall be computed from the earliest ascertainable date the cause of action existed” (CPLR 5001 [b]). Subject to certain exceptions, a claim for breach of contract exists on the date of the breach (see CPLR 213 [2]; Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, 402 [1993]). Here, the cause of action existed on December 31, 2005, when the Village owed the withdrawal fee. This date is readily ascertainable not only from the Abandonment Plan, but also from the enabling statute, which provides that, upon withdrawal from a self-insured workers’ compensation plan, a “participant shall pay ... an equitable share of the outstanding liabilities of the plan as of the date of withdrawal” (Workers’ Compensation Law § 65 [1] [emphasis added]).

Although the Village’s undiscounted liability was not calculated until June 2006, the liability existed as of the date of withdrawal. Moreover, in the intervening six months, the County was paying the Village’s share of the workers’ compensation benefits, and the Village was wrongfully withholding the funds owed. Accordingly, there is no reason to extend the accrual date simply because the 2005 Reserve Analysis was not released until June 2006.

The proposed January 2008 accrual date is similarly unavailing. In support of this date, the Village invokes the principle that interest on an accrued claim against a municipality is payable only from the time that payment is demanded, not from the point at which the debt matured (see Rapid Tr. Subway Constr. Co. v City of New York, 259 NY 472 [1932]; Smith v Board of Educ. of City of N.Y., 208 NY 84 [1913]; O’Keeffe v City of New York, 176 NY 297 [1903]; Taylor v Mayor, 67 NY 87 [1876]). However, this rule has no application in this context.

Calculating interest on a municipality’s debt from the time of demand was developed as a means to deter opportunistic creditors from buying up small claims against municipalities and waiting to demand payment until the statute of limitations has nearly expired in order to reap the benefits of the statutory interest rate (see O’Keeffe, 176 NY at 298-299). The case law emphasizes that a municipal defendant should not be “required to seek out those who have claims against it” (Taylor, 67 NY at 94; accord Rapid Tr., 259 NY at 495; O’Keeffe, 176 NY at 298 [“It would be exceedingly difficult for the comptroller of a large city to look up claimants or their heirs or assigns and tender payment as their claims matured and became due”]).

The policy justifications for protecting municipalities from scheming claimants do not apply here. By waiting to assert its counterclaims, the County was not delaying a demand of payment from an unwitting municipality in order to “allow[ ] . . . interest from such maturity [to] afford a safe and profitable investment” (O’Keeffe, 176 NY at 298). On the contrary, the Village was well aware of the debt’s maturity date, having anticipated the withdrawal liability in the October 2005 complaint. Under these circumstances, the courts below properly concluded that the claim accrued on December 31, 2005. The Village’s damages should be discounted to that date, based on an appropriate discount rate to be determined upon remittal.

Finally, we note that this dispute between related governmental entities has already spawned nearly a decade of litigation. In the interest of minimizing additional costs to taxpayers and conserving judicial resources, the parties might well consider the wisdom of compromise going forward.

Accordingly, the order of the Appellate Division should be modified, without costs, by remitting to Supreme Court for further proceedings in accordance with this opinion, and, as so modified, affirmed.

Abdus-Salaam, J.

(dissenting in part). The majority concludes that, because the withdrawal payment owed by plaintiff Village of Herkimer under the Abandonment Plan was calculated based on an estimate of plaintiff’s share of workers’ compensation claims to be paid in the future, the County’s recovery of damages for the loss of the withdrawal payment constituted compensation for future losses, which should have been discounted to present value (see majority op at 818-820). In my view, however, the withdrawal payment was a lump sum contractual payment like any other, albeit one calculated via an actuarial estimate of the cost of outstanding workers’ compensation claims, and the County suffered an immediate present loss when plaintiff failed to make the payment on the due date. Accordingly, I would hold that the trial court properly declined to discount the damages award to present value because it remedied only a present loss, and I dissent from the majority’s conclusion to the contrary.

The law is not in dispute here. In a breach of contract action, the non-breaching party is generally entitled to compensatory damages to place it in the same position it would have occupied had the breaching party satisfied its obligations under the contract (see generally Kenford Co. v County of Erie, 73 NY2d 312, 319 [1989]; 36 NY Jur 2d, Damages § 19). Where the contract requires the breaching party to continue to make payments or otherwise perform on the contract at various future times subsequent to the breach, the non-breaching party must be awarded damages that will compensate that party only for its losses as they occur on those future dates, and thus any damages awarded for those future losses must be discounted to present value to prevent the non-breaching party from obtaining the windfall of an award that will increase over time to exceed the amount necessary to cover those future losses at the time of their occurrence (see Randall-Smith v 43rd St. Estates Corp., 17 NY2d 99, 103 [1966]; 36 NY Jur 2d, Damages § 38). Logically, however, where a contract requires a party to make a specific payment on a set date in the present and not to perform any future duty thereafter, that party’s breach of that present contractual obligation causes a present loss to the non-breaching party, and therefore the non-breaching party is entitled to undiscounted damages that are needed to cover a loss which it immediately suffers in full.

Here, plaintiffs breach of the contract, i.e., the Abandonment Plan, caused a present loss of the withdrawal payment to the County, and therefore the jury’s damages award compensated the County for that present loss and did not have to be discounted to present value. Specifically, plaintiff sought to withdraw from the Abandonment Plan, which required plaintiff to pay a withdrawal payment on the date of its planned withdrawal, December 31, 2005. Had plaintiff performed under the contract by giving the County the undiscounted $1.6 million withdrawal payment on December 31, 2005, plaintiff would have completely fulfilled its end of the bargain, and plaintiff would not have owed, and the County would not have gained or lost from plaintiff, anything at any future time. Indeed, several other municipalities withdrew from the Abandonment Plan in exactly this manner, paying undiscounted withdrawal payments on their scheduled withdrawal dates and causing no further gain or loss to the County thereafter. Of course, since the County would have gained a $1.6 million withdrawal payment from plaintiff on the December 2005 due date if plaintiff had performed its contractual duty, it follows that the County lost that same amount immediately on that date when plaintiff withdrew from the Abandonment Plan without making the payment in violation of the contract. Therefore, the jury rightly awarded the undiscounted $1.6 million amount of the withdrawal payment to the County in order to place it in the same position it would have occupied had plaintiff timely made that payment.

The contractual method of calculating the withdrawal payment did not alter the nature of that payment or the date on which the County lost it. In that regard, the Abandonment Plan provided that a withdrawing municipality’s withdrawal payment was equal to the municipality’s proportionate share of the Plan’s “outstanding liabilities at the date of withdrawal.” The County interpreted that contractual phrase to mean the cost of covering workers’ compensation claims outstanding under the Plan at the time of withdrawal, and the County calculated that amount by conducting a common actuarial estimate of that cost called a reserve analysis. The County further concluded that the “outstanding liabilities at the date of withdrawal” did not have to be discounted to present value under the terms of the contract and therefore demanded a proportionate share of the undiscounted liabilities as a withdrawal payment from each withdrawing municipality. Although reasonable minds might disagree with the County’s interpretation of the contractual terms defining the withdrawal payment — indeed, plaintiff unsuccessfully disputed the point in its pleadings — that issue is not now before us, and consequently we must assume that the plain language of the Abandonment Plan required any withdrawing municipality to pay an undiscounted lump sum on the date of withdrawal. Thus, when plaintiff failed to pay the withdrawal payment and breached the contract, plaintiff inflicted the present loss of the undiscounted lump sum withdrawal payment on the County, and the jury’s award compensating for that present loss need not have been discounted to present value.

Although the Abandonment Plan, as thus interpreted, allowed for the possibility that the County might receive more or less than it actually needed to cover outstanding workers’ compensation claims that would come due in the future, the possible variance between the eventual cost of the workers’ compensation claims and the agreed-upon withdrawal payment was simply a fair and bargained-for allocation of contractual risk. In particular, the parties bargained for the payment of a flat withdrawal fee that they believed would be sufficient to cover the outstanding workers’ compensation claims. In doing so, plaintiff accepted the risk that it would overpay in the event the County overestimated those future liabilities, just as the County undertook the equal risk that the withdrawal payment might not cover the future liabilities if they proved to be greater than originally estimated. The parties accepted the perils of this bargain, and plaintiff was not entitled to a discount on damages just because the County might never suffer the realization of the risk.

Plaintiffs and the majority’s reliance (see majority op at 818, 819) on Toledo v Iglesia Ni Christo (18 NY3d 363 [2012]), Milhrandt v Green Refractories Co. (79 NY2d 26 [1992]), and similar tort cases is misplaced. For example, in Toledo, the decedent and his estate suffered the immediate loss of decedent’s pain and suffering in the accident that caused his death, and the estate suffered future losses such as decedent’s lost earnings and parental support (see Toledo, 18 NY3d at 365-366). Accordingly, the jury apportioned its award among present and future damages, and the jury then discounted the future damages award to present value (see id.). We appropriately upheld that discounting to present value and also found that, under statutes relevant only to the wrongful death context, pre-verdict interest was properly calculated from the date of the death (see id. at 367-369). Similarly, in Milhrandt, another wrongful death case, we concluded that “no preverdict interest should be added to an award for future damages when the award is only discounted back to the date of the verdict” (Milhrandt, 79 NY2d at 36-37). Thus, those cases stand for the general proposition that, where a tort claimant will suffer continuing future losses as the result of the injury inflicted by the tortfeasor, the claimant’s future damages must be discounted to present value to avoid a windfall recovery. By contrast, here, the County’s loss of the withdrawal payment occurred on the date of the breach and not on any future date, and therefore the damages for that present loss did not have to be discounted.

Finally, because the trial court and the jury properly refused to discount the award to present value, the court fairly applied interest to the full amount of the award, which, again, consisted entirely of damages from a present loss on which interest was already owed. Moreover, under CPLR 5001 (b), the court correctly assessed interest starting on December 31, 2005. As correctly stated by the majority (see majority op at 821), on that date, plaintiff refused to honor its contractual obligation to make the withdrawal payment and wrongfully withheld that payment, and therefore “there is no reason to extend the accrual date simply because the 2005 Reserve Analysis was not released until June 2006” (id.).

Accordingly, I would affirm the order of the Appellate Division.

Judges Graffeo, Read, Smith and Pigott concur with Chief Judge Lippman; Judge Abdus-Salaam dissents in part in an opinion in which Judge Rivera concurs.

Order modified, without costs, by remitting to Supreme Court, Oneida County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.


source: Caselaw Access Project

author: Graffeo, J. Abdus-Salaam, J.

license: Public Domain

text:
    [18 NE3d 367, 993 NYS2d 656]
    The People of the State of New York, Appellant, v Anner Rivera, Respondent.
    Argued May 8, 2014;
    decided June 10, 2014

      POINTS OF COUNSEL

      Charles J. Hynes, District Attorney, Brooklyn (Adam M. Koelsch and Leonard Joblove of counsel), for
    appellant.
    Defendant’s claim regarding a conversation between the trial court and a juror in the absence of defendant is unpreserved, and does not fall within the “mode of proceedings” exception to the preservation requirement, because the court promptly informed defendant and his attorney of the content of the conversation and offered to read back that conversation. (People v Kelly, 5 NY3d 116; People v Autry, 75 NY2d 836; People v Creech, 60 NY2d 895; People v Patterson, 39 NY2d 288, 432 US 197; People v Agramonte, 87 NY2d 765; People v Becoats, 17 NY3d 643; People v Hawkins, 11 NY3d 484; People v Starling, 85 NY2d 509; People v O’Rama, 78 NY2d 270; People v Casey, 95 NY2d 354.)

      Lynn W.L. Fahey, Appellate Advocates, New York City (Kathleen Whooley of counsel), for respondent.
    The Appellate Division correctly held that, when the court conducted an ex parte conversation with a deliberating juror about the very issue the jurors were struggling to decide, in violation of Anner Rivera’s constitutional right to be present, it committed a “mode of proceedings error” that could not be “cured” by its summarizing of the conversation for Mr. Rivera and the attorneys after the fact. (People v O’Rama, 78 NY2d 270; People v Cain, 76 NY2d 119; People v Mehmedi, 69 NY2d 759; Rlinois v Allen, 397 US 337; People v Williams, 85 NY2d 945; People v Epps, 37 NY2d 343; People v Dokes, 79 NY2d 656; People v Parker, 57 NY2d 136; People v Favor, 82 NY2d 254.)
   OPINION OF THE COURT

Graffeo, J.

The primary issue before us is whether the trial court’s violation of defendant’s right to be present during a supplemental jury instruction to a single juror constitutes a mode of proceedings error entitling defendant to a new trial. We conclude that, under the circumstances of this case, it does and therefore affirm.

Andres Garcia shot a friend of defendant Anner Rivera five or six times and then allegedly pointed the gun at defendant, who fired back and killed Garcia. After defendant was indicted for intentional murder (see Penal Law § 125.25 [1]) and weapon possession (see Penal Law § 265.03 [1] [b]; [3]), he asserted that he had shot Garcia in self-defense. At defendant’s request, the court instructed the jury on the defense of justification for each count (see CJI2d[NY] Penal Law § 35.15).

On the second day of deliberations, the jury sent a series of notes seeking further explanation of the meaning of “justified” and inquiring as to “when exactly by law” it could consider defendant to be in “imminent danger.” Counsel and the court agreed to advise the jury that this was a question of fact for jury determination. During the instruction, one juror commented that this was the jury’s “main complication” and the court responded by encouraging the jury to continue deliberations.

Soon after, an off-the-record bench conference was held between the judge, prosecutor and defense counsel. When the record resumed, the judge stated that juror number 11 had requested to speak with the court and, with the consent of the attorneys, he would hear the juror’s concerns on the record in the robing room. There is no indication that defendant was present for or aware of his lawyer’s acquiescence to this procedure. The following exchange then occurred in the robing room and outside the presence of defendant and counsel:

“JUROR #11: My question is in relation to that question. I just want to know by the law, when can we be considered to deem defendant, I guess, responsible? That’s the big issue with some of us.
“THE COURT: That’s understandable, but I can’t, there is no legal definition other than what I’ve given you. All the rest depends on an interpretation of the evidence, as I said, in the courtroom. This is a fact question for you to determine what the facts are from the evidence and make your determination. There is no more help I can give you.
“JUROR #11: It’s like the facts say both, say both, but more or less one or the other if depending upon when certain people are saying well, it’s considered one’s right before the actions took place, others are saying it’s considered once they arrived to the scene that you could say that you should determine and that’s the thing we really—
“THE COURT: You have to work it out among yourselves and come to a determination that all of you feel comfortable with, so you just have to just work it out, look at the evidence and, you know, evaluate what you’ve heard and make a decision. . . .
“THE COURT: I think that our discussion here should remain between us and basically—
“JUROR #11: Basically what you covered in the courtroom.
“THE COURT: It’s exactly what I said in the courtroom. I can’t give you any more guidance than that.”

Upon reentering the courtroom, the judge informed the attorneys that juror number 11 had requested “guidance” regarding when someone could be considered to be in “imminent danger.” The court summarized its response to the juror and stated that the colloquy was available for readback. Realizing that defendant was absent, the court had defendant returned to the courtroom, again gave a condensed version of the discussion, and explained that the transcript was available for review. Neither counsel voiced an objection or requested a readback.

The jury acquitted defendant of murder and manslaughter, but convicted him of second-degree criminal possession of a weapon (see Penal Law § 265.03 [3]). The Appellate Division reversed and granted defendant a new trial, holding that the robing room colloquy constituted a mode of proceedings error (102 AD3d 893, 894 [2d Dept 2013]). A Judge of this Court granted the People leave to appeal (21 NY3d 1008 [2013]).

Typically, preservation is a prerequisite to our appellate review, which is limited to questions of law (see NY Const, art VI, § 3 [a]; CPL 470.05, 470.35; People v Patterson, 39 NY2d 288, 294-296 [1976], affd 432 US 197 [1977]). In criminal cases, however, we have long applied a “very narrow” exception to the requirement of a timely objection with respect to a limited class of errors that “go to the essential validity of the process and are so fundamental that the entire trial is irreparably tainted” (People v Kelly, 5 NY3d 116, 119-120 [2005]; see People v Mehmedi, 69 NY2d 759, 760 [1987], rearg denied 69 NY2d 985 [1987]; Patterson, 39 NY2d at 294-296). As such, these “mode of proceedings” errors are “immune from the requirement of preservation” (Kelly, 5 NY3d at 120; see People v Collins, 99 NY2d 14, 17 [2002]).

A defendant’s fundamental constitutional right to be present at all material stages of a trial encompasses a right to be present during the court’s charge, admonishments and instructions to the jury (see CPL 260.20; People v Harris, 76 NY2d 810, 812 [1990]; Mehmedi, 69 NY2d at 760-761; People v Ciaccio, 47 NY2d 431, 436-437 [1979]). This “absolute and unequivocal” right is further embodied in CPL 310.30 (Mehmedi, 69 NY2d at 760; see Collins, 99 NY2d at 17).

Under CPL 310.30, when a deliberating jury requests further instruction or clarification on the law, trial evidence, or any other matter relevant to its consideration of the case, “the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant,” the court must give such information or instruction as it deems proper (CPL 310.30; see Collins, 99 NY2d at 17). We have consistently held that a defendant’s absence during nonministerial instructions, in violation of CPL 310.30, affects the mode of proceedings prescribed by law and presents an error of law for our review — even absent an objection or where defense counsel has consented to the procedures used (see Collins, 99 NY2d at 17; People v Cain, 76 NY2d 119, 124 [1990]; Harris, 76 NY2d at 812 n; Mehmedi, 69 NY2d at 760).

The People argue that reversal is not required in this case because, even assuming that a mode of proceedings error occurred, it was substantially cured by the trial court. Defendant counters that “curability” is antithetical to the concept of mode of proceedings errors and asserts that the purported cure here was insufficient.

In People v Cain (76 NY2d 119 [1990]), the trial court engaged in a robing room colloquy with a single juror in the presence of the attorneys — but not the accused — during which the court repeated to the juror a substantive instruction previously given to the entire jury. As in this case, defense counsel did not object to the defendant’s absence. We concluded that the robing room discussion violated CPL 310.30 because the defendant had an absolute right to be present and therefore, the error “mandate[d] reversal” without regard to whether any prejudice flowed and despite the presence and consent of defense counsel (id. at 124). We find Cain to be controlling here.

Whether defendant’s presence may have had an impact on the court’s colloquy with a deliberating juror — as opposed to, for example, a discussion between the court and counsel — is irrelevant under the unequivocal mandate of CPL 310.30 and Cain (see Collins, 99 NY2d at 18-19; Cain, 76 NY2d at 124; Mehmedi, 69 NY2d at 760; compare People v Roman, 88 NY2d 18, 26 [1996], rearg denied 88 NY2d 920 [1996]). Rather, our precedent recognizes only one clear exception to the defendant’s right to be present under CPL 310.30, which is actually not an exception at all — namely, there is no violation when a communication is ministerial and therefore does not fall within the ambit of a supplemental jury instruction (see Collins, 99 NY2d at 17-18; People v Hameed, 88 NY2d 232, 240-241 [1996], cert denied 519 US 1065 [1997]; Harris, 76 NY2d at 812).

Here, as in Cain, juror number ll’s questions requested further substantive instruction on a primary issue in the case — the application of the justification defense. Although the trial court initially informed the juror that it had already given the jury the full instructions to which it was entitled, the court then proceeded to tell the juror “to work it out . . . and come to a determination” by evaluating the evidence. This exchange was not ministerial (see Collins, 99 NY2d at 17; cf. People v Torres, 72 NY2d 1007, 1009 [1988]; compare People v Williams, 21 NY3d 932, 935 [2013]; People v Bonaparte, 78 NY2d 26, 30-31 [1991]; Harris, 76 NY2d at 812). Moreover, to the extent that the dissent assumes that People v Bragle (88 NY 585 [1882]) and People v Morales (80 NY2d 450, 457 n 2 [1992]) may be read together to create a “de minimis” exception to a defendant’s right to be present during supplemental jury instructions, neither of those cases arose under CPL 310.30, and the facts of this case are plainly distinguishable (compare Bragle, 88 NY at 589-590).

Finally, contrary to the view of the People and the dissent, People v Kelly (5 NY3d 116 [2005]) and People v Kadarko (14 NY3d 426 [2010]) do not persuade us to reach a different result. Our conclusion that preservation was required in those cases necessarily followed from our determinations that no mode of proceedings error had occurred. Even accepting the People’s contention that a violation of a defendant’s right to be present during supplemental jury instructions may be “cured” or requires preservation in certain contexts (cf. Williams, 21 NY3d at 935; People v Ippolito, 20 NY3d 615, 625 [2013]), here, the trial court’s response was inadequate to remedy the error (see generally People ex rel. Lupo v Fay, 13 NY2d 253, 257 [1963], cert denied 376 US 958 [1964]). Thus, we hold that under Cain and related precedent, an error of law has been presented for our review and defendant is entitled to a new trial.

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

Abdus-Salaam, J.

(dissenting). Because, contrary to the majority’s determination (see majority op at 829, 832-833), the trial court committed a de minimis violation of defendant’s right to be present rather than a mode of proceedings error, I respectfully dissent and vote to reverse the order of the Appellate Division.

A criminal defendant’s statutory and constitutional right to be present at the material stages of his or her trial derives from the fear that, in the defendant’s absence at such material proceedings, he or she will be denied a full opportunity to defend against the charges or be confronted with the appearance of impropriety attendant to wholly secret trials (see Kentucky v Stincer, 482 US 730, 745 [1987] [“a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure”]; Snyder v Massachusetts, 291 US 97, 105-106 [1934] [defendant has a right to be present “whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge”]; People v Morales, 80 NY2d 450, 456 [1992] [“To the extent there is a concern about secret trials, defendant’s presence serves a symbolic function” regardless of defendant’s “potential contribution to the proceedings”]; People v Bragle, 88 NY 585, 590 [1882] [the old statute guaranteeing the right to be present “was evidently meant for the protection of the prisoner, and a substantial performance was all which was required”]; Maurer v People, 43 NY 1, 4 [1870] [right to be present under old statute had to be honored so “that the accused have the opportunity of correcting any error in the answers, or of calling attention to other parts of the evidence explanatory thereof, or that may modify its effect”]; cf. People v Colascione, 22 NY2d 65, 70-71 [1968] [“here, opportunity to act” with respect to the court’s inquiry of the jury “was withdrawn from counsel” and defendant, thus violating defendant’s right to be present, and “(t)here was no contemporaneous record” of ex parte proceedings]).

To prevent the deprivation of a defendant’s opportunity to provide meaningful input or to object to a court’s actions at important proceedings, we have held that a defendant’s significant absence from a material, nonministerial stage of the trial results in a mode of proceedings error, which need not be preserved, cannot be waived and requires reversal of the conviction (see People v Cain, 76 NY2d 119, 124 [1990]; People v Mehmedi, 69 NY2d 759, 760 [1987]). However, under some circumstances, where the defendant either could not have provided meaningful input on, or eventually has an opportunity to object to and cure, a court’s brief ex parte conduct during jury deliberations, no mode of proceedings error occurs, and the court commits only a de minimis violation of the right to be present, which does not warrant reversal (see People v Collins, 99 NY2d 14, 18-19 [2002]; People v Roman, 88 NY2d 18, 26 [1996]; People v Morales, 80 NY2d 450, 457 n 2 [1992]).

Here, the trial court committed a de minimis violation of defendant’s right to be present. Once defense counsel and the prosecutor suggested to the court that it should speak to juror 11 outside the presence of the parties, the court followed that recommendation, and as far as the record shows, the court did not know in advance that the juror intended to inquire about the court’s previous response to the jury’s note. When the juror asked the court “when can we be considered to deem defendant, I guess, responsible,” the court briefly replied, in sum and substance, that it could not help the juror or provide any guidance on that matter beyond what it had already told the entire jury. Neither defendant nor his attorney could have meaningfully contributed to what was basically the court’s nonanswer to the juror’s question. And, after the robing room conversation, the court summarized the contents of the conversation for defendant and offered a readback, thereby offering him a full opportunity to inform the court of anything the court should have said to the juror and to recommend curative measures if needed. Importantly, too, the court maintained the transparency of the proceedings by receiving the lawyers’ consent in advance of the robing room conversation, informing the parties of the content of the conversation and making available a transcript of the conversation. Since defendant’s absence from the court’s discussion with juror 11 did not “ ‘ha[ve] a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge’ ” (People v Ciaccio, 47 NY2d 431, 436 [1979], quoting Snyder, 291 US at 105-106) or cause the proceedings to remotely resemble a “secret trial[ ]” (Morales, 80 NY2d at 456), the court committed, at most, a de minimis violation of defendant’s right to be present rather than a mode of proceedings error.

People v Kelly (5 NY3d 116 [2005]) is instructive on this point, even though the defendant in Kelly did not expressly frame his appellate claim in terms of his right to be present. In Kelly, a court officer entered the jury room and conducted a demonstration using the alleged murder weapon in the absence of the defendant and his attorney (see id. at 118). When the officer later informed the court and the parties of the demonstration, defense counsel consulted with the defendant and then had the court issue a curative instruction (see id.). Despite the defendant’s complete absence from the court officer’s interaction with the jurors regarding the murder weapon, we held that no mode of proceedings error had occurred (see id. at 117-121). In particular, we observed that the defendant had not objected to the court’s supposed failure to supervise the court officer during the deliberations, instead only seeking a curative instruction, and we said:

“the court officer did not have the last word; the court did, after it continued to exercise full and proper control of the trial. By airing the problem, the trial court gave defendant an opportunity to object to the court officer’s demonstration. The record is devoid of an objection; instead, defendant obviously wanted the case to go to verdict, and was satisfied with a curative instruction. In all, the impropriety was protestable but unprotested, curable and cured” (id. at 121).

In the instant case, defendant was similarly absent from a brief portion of the proceedings that could not have had any real impact on the jury’s deliberations, and the court aired the problem and invited input from defendant, who apparently had none to offer. Defendant was satisfied with the court’s actions, and as in Kelly, no mode of proceedings error occurred (see generally People v Kadarko, 14 NY3d 426, 428-429 [2010]).

Along those lines, in People v Collins (supra), we declined to reverse the defendant’s conviction based on a de minimis violation of the right to be present akin to the one that occurred here. There, the defendant was present when the trial court granted defense counsel’s request to add an instruction to the verdict sheet telling the jury to consider certain burglary counts in the alternative (see Collins, 99 NY2d at 16). The defendant was absent, however, when counsel and the court drafted the specific language of the instruction on the verdict sheet, and he remained absent during counsel’s motion for a trial order of dismissal (see id.). We concluded that the trial court had not committed a mode of proceedings error in violation of the defendant’s right to be present by drafting the language of the instruction in the defendant’s absence (see id. at 18-19). In finding that the court’s action was “ministerial” and did not implicate the defendant’s fundamental procedural rights, we noted that the defendant’s “presence was unnecessary” at the disputed portion of the proceedings insofar as it “involved a purely legal argument to which defendant had nothing to contribute” (id. at 18-19). So, too, defendant here was present during the major part of the court’s and the lawyers’ substantive discussion of the issue identified in the jury note, which prompted juror 11’s robing room inquiry, and defendant missed only the court’s short refusal to assist the juror further on that subject, to which defendant could have added nothing of value. Therefore, defendant’s fleeting absence from the interaction between the court and the juror does not warrant the invalidation of his conviction.

By striking down defendant’s conviction based on a de minimis error that occurred at defense counsel’s instigation and with defendant’s eventual acquiescence, the majority risks encouraging gamesmanship without promoting the interests underlying the right to be present. Under the majority’s holding, a conscientious defense counsel has every reason to encourage a trial court to conduct insignificant proceedings in the defendant’s absence, knowing that the court’s actions will not meaningfully affect the jury’s consideration of the case and will provide a guaranteed reversal of a conviction on appeal. In instigating this error without moving for a mistrial, counsel incurs little, if any, risk. The court’s insignificant interaction with a juror or jurors in the defendant’s absence is unlikely to jeopardize the defendant’s chance to receive an acquittal from the jury, and should the jury convict the defendant, as it presumably would have done regardless of its ex parte contact with the court, counsel’s successful effort to prompt the court’s de minimis error guarantees the defendant a reversal and a shot at a more favorable result on retrial. While the promotion of such undesirable legal strategies sometimes may be a tolerable side effect of the protection of defendants’ most basic rights, we should not create perverse incentives for litigants where, as here, trial courts have not significantly infringed on their rights (see People v Acevedo, 17 NY3d 297, 302-303 [2011, Lippman, Ch. J.] [denying defendants relief because they sought to use a procedural resentencing maneuver purely as a form of gamesmanship meant to avoid proper sentencing consequences rather than to vindicate the interests underlying their entitlement to resentencing]).

The facts of this case reveal the benefits the majority risks conferring upon those who “sit idly by while error is committed, thereby allow the error to pass into the record uncured, and yet claim the error on appeal” (People v Patterson, 39 NY2d 288, 295 [1976]). Defense counsel encouraged the court to conduct a small part of the proceedings during deliberations in defendant’s absence, and thereafter counsel and defendant learned of the relatively unimportant contents of the ex parte proceedings and could have further examined them. Had either defendant or his lawyer requested a mistrial based on the de minimis irregularity, defendant would have faced the unappealing prospect of another trial on all charges in the indictment, including intentional murder. By instead staying silent, allowing the error to occur and seeking a chance at acquittal, the defense reaped a far greater reward than would have flowed from a timely and readily available objection. Had the jury convicted defendant of all charges, he would still have won an automatic reversal and a retrial five years later when witnesses’ memories may have faded, and if the jury had acquitted him outright, he would have been a free man. In fact, defendant received nearly the maximum benefit of his and his lawyer’s silence because he was acquitted of the most serious charges, thereby eliminating the risk of retrial for murder, and accrued only a weapons possession conviction, for which he may now receive a retrial. While more serious legal violations may appropriately bring about such an outcome, nothing about the trial court’s practice here justifies this result.

The majority says that jurors seldom ask for information from the court without sending a written note and compelling the court to follow the O’Rama procedure (see People v O’Rama, 78 NY2d 270 [1991]), so only rare cases will create opportunities for defense attorneys to lead trial judges down the garden path to the sort of de minimis error that, in the majority’s view, warrants reversal here (see majority op at 833 n 1). But, the majority provides no factual support for its assertion that deliberating jurors rarely ask to speak to the court in person without triggering the O’Rama procedure, and past cases indicate that robing room conversations with jurors, whether warranting reversal of a conviction or not, are not so rare as to obviate the need to limit genuinely unjustified reversals and thus discourage litigants from engaging in cynical tactical maneuvers (see Collins, 99 NY2d at 16; Cain, 76 NY2d at 121-122; People v Pellington, 294 AD2d 197, 197 [1st Dept 2002]; People v Carr, 168 AD2d 213, 213-215 [1st Dept 1990]; see also People v Pagan, 248 AD2d 325, 326 [1st Dept 1998]).

Finally, People v Cain and People v Mehmedi (supra), cited by the majority (see majority op at 831-832), are distinguishable from this case. In Cain, the trial court summoned a juror to the robing room in response to a poll of the jury upon its verdict (see Cain, 76 NY2d at 121-122). With counsel present and the defendant absent, the court: held an extensive conversation with the juror about the juror’s confusion over the intricacies of accomplice liability; repeated its full initial instructions on that subject; provided an illustrative example of the issue; and discussed the juror’s specific conclusions about the facts of the case (see id. at 122-123). The court then immediately accepted the jury’s verdict without summarizing the robing room conversation for defendant or offering a readback of it (see id. at 123). On those facts, we held that the court’s violation of the defendant’s right to be present required reversal of his conviction (see id. at 124). By contrast, the court here did not hold a protracted dialogue with a juror about important and complex legal issues, adduce factual conclusions from the juror, or repeat substantial legal instructions and hypothetical examples in defendant’s absence in a manner which deeply infringed on his right to be present.

As for Mehmedi, the trial court there also caused more than a de minimis violation of the defendant’s right to be present. In that case, the court formulated an answer to a critical factual question posed by the jury in the defendant’s absence (see Mehmedi, 69 NY2d at 760). While the defendant was still outside the courtroom, the court issued its response to the jury, and the court apparently did not later apprise the defendant of what had transpired (see id. at 760). On appeal, we accepted the People’s concession that the court had committed a mode of proceedings error without extended discussion, but we rejected their invitation to hold the error harmless and reversed the defendant’s conviction (see id. at 760-761). Unlike the court in Mehmedi, the trial court in this case did not formulate its sole response to the full jury’s critical factual inquiry in defendant’s absence, nor did the court entirely deprive defendant himself of the opportunity to complain of the contents of its sole and final response to a jury inquiry, which here, in contrast to Mehmedi, were revealed to defendant in open court. Thus, Mehmedi does not require the invalidation of defendant’s conviction.

In sum, by affirming the Appellate Division’s order, the majority potentially fosters needless gamesmanship and detaches our precedent on the right to be present from its primary underpinnings. Therefore, I dissent and would reverse.

Chief Judge Lippman and Judges Pigott and Rivera concur with Judge Graffeo; Judge Abdus-Salaam dissents and votes to reverse in an opinion in which Judges Read and Smith concur.

Order affirmed.

      . The dissent expresses concern that the foregoing principles encourage “gamesmanship.” In response, we note that most substantive inquiries by jurors fall within the confines of People v O’Rama (78 NY2d 270 [1991]) and adherence to the procedures that we articulated decades ago in that case minimizes any such problem.

      . Although our ruling is premised on a violation of defendant’s right to be present under CPL 310.30 and People v Cain, we further note that CPL 310.30 “does not contemplate the giving of supplemental legal instructions to a single juror in the absence of the remaining jurors” because substantive communications with one juror could influence the entire panel if unwittingly misinterpreted or mischaracterized (76 NY2d 119, 124 n 1 [1990]; see United, States v United States Gypsum Co., 438 US 422, 460-461 [1978]).

      . The People raise no issue on appeal with regard to whether justification was properly charged for any count.

       The majority essentially posits that, in enacting CPL 310.30, the legislature implicitly overruled so much of our precedent in Bragle and Morales as establishes that some violations of the right to be present are de minimis. Thus, in the majority’s view, CPL 310.30 requires a defendant’s presence at every interaction between the court and a juror, save for those proceedings that may be labeled ministerial (see majority op at 832-833). But, at the time it passed that statute, the legislature presumably knew of our previous holdings that no mode of proceedings error occurs when a defendant’s absence from a portion of jury deliberations neither deprives the defendant of the opportunity to meaningfully defend against the charges nor creates the appearance of a secret trial (see Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151, 157 [1987]). With apparent awareness of that precedent, the legislature expressed no intent to dispose of it, as nothing in the text or legislative history of CPL 310.30 reflects a desire to end our preexisting decisional framework regarding the right to be present (see CPL 310.30; Mem of Commn on Rev of Penal Law and Crim Code, Bill Jacket, L 1970, ch 996 at 12). Indeed, in recognition that CPL 310.30 embodies the same commonsense approach to the right to be present as our prior precedent, we have concluded that the statute implicitly tolerates a defendant’s absence from ministerial proceedings because, while the court may provide a deliberating juror with information of some kind at such proceedings, that information is not so significant as to necessitate the defendant’s presence and input, which would be of little value (see People v Harris, 76 NY2d 810, 812 [1990]).