author: Pigott, J. Stein, J. Fahey, J.

text:
    [56 NE3d 213, 36 NYS3d 431]
    Aetna Health Plans, as Assignee of Luz Herrera, Appellant, v Hanover Insurance Company, Respondent.
    Argued January 13, 2016;
    reargued May 4, 2016;
    decided June 14, 2016

      Shayne, Dachs, Sauer & Dachs, LLP, Mineóla (Jonathan A. Dachs of counsel), and Harry I. Katz, P.C., Fresh Meadows, for appellant.

      Rivkin Radler, LLP, Uniondale (Barry I. Levy of counsel), and Crisci, Weiser & McCarthy, New York City (Erin M. Crowley of counsel), for respondent.

      White and, Williams LLP, New York City (Jay Shapiro of counsel), for American Insurance Association, amicus curiae.
   OPINION OF THE COURT

Pigott, J.

The issue presented in this appeal is whether a health insurer who pays for medical treatment that should have been covered by the insured’s no-fault automobile insurance carrier may maintain a reimbursement claim against the no-fault insurer within the framework of the Comprehensive Motor Vehicle Insurance Reparations Act (Insurance Law § 5101 et seq.) (the No-Fault Law). Because New York’s “no-fault” statutory law and regulatory scheme does not contemplate such reimbursement to a health insurer, as opposed to a health care provider, we hold that it may not.

I.

On April 25, 2008, Luz Herrera sustained personal injuries while operating a vehicle insured by defendant Hanover Insurance Company. At the time of the accident, Herrera also had private health insurance through plaintiff Aetna Health Plans.

Herrera received medical treatment for her injuries from various medical providers. Although Aetna alleges that the bills should have been paid by Hanover, the no-fault insurer, the medical providers submitted some of their bills for treatment directly to Aetna. Aetna paid the bills, initially totaling $19,649.10.

Aetna, through its representative, wrote to Hanover in March 2009 seeking reimbursement for the medical bills it had paid, but Hanover did not respond. At the same time, Aetna filed a lien for reimbursement should Herrera recover in a personal injury action that she had brought against the alleged tortfeasor who caused her injuries in the accident.

On January 6, 2010, Herrera, through her attorneys, submitted copies of the medical bills paid by Aetna to Hanover, demanding payment. Hanover did not respond to Herrera’s demands either.

Herrera then demanded arbitration pursuant to her policy with Hanover, claiming that she was entitled to the no-fault benefits because Aetna maintained a lien against her for reimbursement and Hanover, who was responsible for the bills, had neither paid nor denied coverage for the bills submitted. The arbitrator denied Herrera’s claim in its entirety, reasoning that the documents submitted by Herrera — copies of the medical bills paid by Aetna — were not “bills.” Further, the arbitrator asserted that even if they were considered “bills,” Herrera lacked standing to make the claim because Aetna had paid them. The arbitrator determined that, while Aetna had a lien against Herrera, until that lien was satisfied, Herrera lacked standing to pursue her claim. A Master Arbitrator affirmed that decision.

In addition to the payments that were the subject of the arbitration, Herrera’s medical providers continued to submit bills to Aetna for her ongoing treatment, and Aetna continued to pay an additional $23,525.73 in medical bills.

Thereafter, Herrera, through her attorneys, resubmitted all of the medical bills to Hanover and informed it that she had assigned her rights against Hanover to Aetna.

II.

Aetna commenced this action against Hanover, seeking reimbursement for the amounts paid on Herrera’s behalf, plus interest and attorneys’ fees. Hanover answered, generally denying Aetna’s allegations and asserting affirmative defenses.

Aetna moved for summary judgment, arguing that Hanover breached its contract of insurance with its assignor, Herrera. Aetna claimed that as the assignee of Herrera’s claim for no-fault benefits, it stood in the shoes of Herrera and was entitled to reimbursement for the monies it paid for the medical treatment Herrera received resulting from the motor vehicle accident.

Hanover opposed the motion and cross-moved to dismiss the complaint based upon lack of standing, arguing that Aetna was not entitled to direct reimbursement under 11 NYCRR 65-3.11 (a) because it was an insurance company and not a provider of health care services, the only type of assignee permitted by regulation, and Aetna was not in privity of contract with Hanover. Hanover cross-moved for summary judgment dismissing the complaint as neither Herrera nor Aetna timely submitted the medical bills to Hanover.

Aetna responded that Hanover was judicially estopped from arguing that Aetna lacked standing because in the prior arbitration Hanover asserted — and the arbitrators agreed— that Aetna was the proper party with standing, not Herrera.

Supreme Court granted Hanover’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (7), and denied Aet-na’s motion for summary judgment on liability as moot (2013 NY Slip Op 33221[U] [Sup Ct, Bronx County 2013]). The court concluded that because Aetna was not a “health care provider” under the no-fault statute, it was not entitled to direct payment of no-fault benefits (id. at *5). It further held that Aetna was not in privity of contract with Hanover and had not shown that it was an intended third-party beneficiary of Hanover’s contract with Herrera. Finally, the court determined that Aetna could not sustain a cause of action under subrogation principles because “[t]here [was] ... no authority permitting a health insurer to bring a subrogation action against a no-fault insurer for sums the health insurer was contractually obligated to pay to its insured” (id. at *6).

The Appellate Division unanimously affirmed (116 AD3d 538 [1st Dept 2014]). The Court determined that Aetna “is not a ‘health care provider’ under [11 NYCRR 65-3.11 (a)], but rather a heath care insurer” that Hanover had no legal obligation to directly reimburse (id. at 539). It concluded that the provisions of Insurance Law §§ 5105 and 5106 (d) provide for “a limited window of arbitration between no-fault insurers” that “does not pertain to a health insurer such as Aetna” and consequently Aetna could not maintain a subrogation claim against Hanover (id.). The Court stated that, because there was no “privity of contract” between Aetna and Hanover, nor was Aetna a “third-party beneficiary of the contract” between Hanover and Herrera, Aetna could not assert a breach of contract claim against Hanover (id.).

III.

Article 51 of the Insurance Law, enacted as the Comprehensive Motor Vehicle Insurance Reparations Act (see L 1973, ch 13), governs payments to reimburse a person for basic economic loss for personal injury arising out of the use or operation of a motor vehicle, irrespective of fault. Article 51 is commonly known as the No-Fault Law. The purpose of the No-Fault Law was to promote “prompt resolution of injury claims, limiting cost to consumers and alleviating unnecessary burdens on the courts” (Pommells v Perez, 4 NY3d 566, 570-571 [2005] [citation omitted]). Under no-fault, an insured who has been in a motor vehicle accident can claim first party benefits from her motor vehicle insurer of up to $50,000 to cover “basic economic loss” as defined in Insurance Law § 5102 (a). In the event of “serious injury” as defined in the statute, a person may initiate suit against the car owner or driver for damages caused by the accident (Insurance Law § 5104 [a]).

The applicable regulation, 11 NYCRR 65-3.11 (a), provides, in relevant part, that “[a]n insurer shall pay benefits for any . . . loss[,] other than death benefits, directly to the applicant or, . . . upon assignment by the applicant . . . , shall pay benefits directly to providers of health care services” (emphasis added). Aetna concedes that as a health insurer it is not a “provider of health care services” as contemplated by the language of this regulation (see Health Ins. Plan of Greater N.Y.v Allstate Ins. Co., 2007 NY Slip Op 33925[U] [Sup Ct, NY County 2007]; see also Ops Gen Counsel NY Ins Dept No. 08-01-08 [Jan. 2008]). Aetna argues, however, that it stands in Herrera’s shoes because Herrera assigned her no-fault rights to it.

This argument fails for two reasons. First, since Herrera’s health care providers were able to bill and recoup payment from Aetna, an assignment by Herrera of her no-fault rights had already been made, leaving her with no rights to assign to Aetna. Second, by its very language, the no-fault regulation permits only the insured — or providers of health care services by an assignment from the insured — to receive direct no-fault benefits. Because Aetna does not fall under the term “health care provider,” Herrera could not assign her rights to it.

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

Stein, J.

(concurring). I am in complete agreement with the majority’s analysis regarding plaintiff Aetna Health Plans’ inability to recover under the No-Fault Law and related regulations. However, I write separately to address the dissent’s analysis of Aetna’s equitable subrogation claim. In my view, Supreme Court properly dismissed the complaint because Aet-na’s claims are inconsistent with, and would improperly supplant, the tightly-regulated and comprehensive no-fault statutory scheme crafted by the legislature, and because the principles of equitable subrogation do not apply under the circumstances presented here. I, therefore, concur with the majority’s conclusion that the Appellate Division’s order should be affirmed.

As the majority aptly explains, the no-fault insurance statutes and regulations provide a comprehensive framework for the resolution and payment of no-fault benefits in connection with covered injuries. Those statutes and regulations provide no basis for a health maintenance organization (HMO) to recover from a no-fault insurer. Thus, under circumstances in which an HMO attempts to recover from a no-fault insurer for payments made on behalf of their mutual insured, the doctrine of equitable subrogation does not apply.

The State Insurance Department’s Office of General Counsel has issued an informal opinion on the topic of subrogation by an HMO (such as Aetna) (see Ops Gen Counsel NY Ins Dept No. 08-01-08 [Jan. 2008] [HMO as No-Fault Subrogee], available at http://www.dfs.ny.gov/insurance/ogco2008/ rg080108.htm, cached at http://www.nycourts.gov/reporter/ webdocs/HMOasNo-FaultSubrogee.pdf). In its opinion, the Insurance Department stated that an “HMO is not entitled to subrogate its recovery pursuant to New York Insurance Law § 5105(a) . . . , because it does not fit the definition of‘insurer’ under the no-fault insurance law scheme.” The Insurance Department reasoned that an HMO is not required to pay for the insured’s treatment in the first place because it is permitted to exclude coverage for treatment that is recovered or recoverable under no-fault (see 11 NYCRR 52.16 [c] [8]). Further, the key no-fault regulation permits direct payment from no-fault insurers to medical providers (see 11 NYCRR 65-3.11) and, in most situations, the insured assigns the benefits to such providers, which then undertake the responsibility of seeking payment from the no-fault insurer.

Essentially, based on its interpretation of the no-fault statutes and regulations, the Insurance Department has advised insurers that an HMO should refuse to pay for any treatment covered under no-fault because, under the no-fault scheme, the HMO will not be able to subrogate its recovery if it makes such payments. While not binding on courts, such informal opinions and interpretations of insurance law are entitled to deference unless irrational or unreasonable, due to the Superintendent’s “ ‘special competence and expertise with respect to the insurance industry’” (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 101 AD3d 53, 64 [2d Dept 2012], quoting Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448 [1985]; see also Financial Services Law § 202 [a]).

As the dissent notes, the doctrine of equitable subrogation can be

“broad enough to include every instance in which one party pays a debt for which another is primarily answerable and which in equity and good conscience should have been discharged by the latter, so long as the payment was made either under compulsion or for the protection of some interest of the party making the payment, and in discharge of an existing liability” (Gerseta Corp. v Equitable Trust Co. of NY, 241 NY 418, 425-426 [1926]).

However, unlike the traditional equitable subrogation situation — involving an active wrongdoer (tortfeasor) and an innocent insurer — equity does not dictate the outcome of who should pay for medical treatment under the no-fault scheme when the dispute is between two types of insurers, neither of which caused the physical injuries. Moreover, Aetna’s payments were not made to discharge an existing liability because, according to the Insurance Department opinion and pursuant to 11 NYCRR 52.16 (c) (8), an HMO has no obligation to reimburse for no-fault recoverable treatment.

“Subrogation allocates responsibility for the loss to the person who in equity and good conscience ought to pay it, in the interest of avoiding absolution of a wrongdoer from liability simply because the insured had the foresight to procure insurance coverage” (North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281, 294 [1993]; see Millennium Holdings LLC v Glidden Co., 27 NY3d 406, 414 [May 5, 2016]). Thus, in the typical example of subrogation, an insurer attempts to recoup covered medical expenses from the tortfeasor who caused the insured’s injuries and need for treatment in the first place (see e.g. ELRAC, Inc. v Ward, 96 NY2d 58, 75-76 [2001]; Teichman v Community Hosp. of W. Suffolk, 87 NY2d 514, 521-522 [1996]). In such circumstances, as a matter of fairness, an insurer who was compelled by contract to pay for medical treatment required by its insured due to the negligent or intentional actions of another ought to be able to obtain reimbursement from the party who was at fault and caused those damages (see Allstate Ins. Co. v Stein, 1 NY3d 416, 422 [2004], citing Ocean Acc. & Guar. Corp. v Hooker Electrochemical Co., 240 NY 37, 47 [1925]).

Here, however, defendant Hanover Insurance Company is Luz Herrera’s no-fault insurer, not the wrongdoer (i.e., the third-party tortfeasor who caused the underlying loss or injury to Herrera). It does not appear that either Aetna or the medical providers are completely without fault concerning the billing issue with which we are now confronted. The medical providers submitted their bills to the incorrect insurer, creating the false impression that Aetna’s policy covered Herrera’s treatment, when her injuries were actually related to her no-fault accident. For its part, Aetna continued to pay those bills, without notifying the providers of this mistake, even after Aetna learned that they should have been submitted to Hanover. On the other hand, no argument is made that Hanover is responsible for the incorrect billing. Aetna has apparently not sought to recoup directly from the tortfeasor Aetna’s payments on Herrera’s behalf, instead relying on a lien it placed against any recovery by Herrera in her action against that party. While purporting to sue as the subrogee of Herrera, as its insured, Aetna is actually suing to recover for its own losses due to incorrect billing, rather than Herrera’s losses (see Federal Ins. Co. v Spectrum Ins. Brokerage Servs., 304 AD2d 316, 317 [1st Dept 2003]). That is not true subrogation.

As the dissent suggests, it would certainly be easier for Aetna to proceed against Hanover for all of the bills paid on Herrera’s behalf, rather than pursuing multiple medical providers for repayment of each of their bills. However, we have long held that “equity will not entertain jurisdiction where there is an adequate remedy at law” (Boyle v Kelley, 42 NY2d 88, 91 [1977]; see Lichtyger v Franchard Corp., 18 NY2d 528, 537 [1966]; Lewis v City of Lockport, 276 NY 336, 342 [1938]). Thus, while equity is, indeed, a flexible concept, it may not be invoked when an adequate remedy exists at law, merely because a party would prefer an easier route to recovery.

In that regard, we emphasize that Aetna may seek recovery from the medical providers that improperly billed Aetna for treatment that should have been covered by Hanover. Contracts between Aetna and the treatment providers — which are not in the record before us — may even spell out the right to, and procedures for, such clawbacks. The medical providers could then submit their bills to Hanover for payment under Herrera’s no-fault policy. The availability to Aetna of this legal remedy renders inappropriate the expansion of equitable subrogation into the complex and comprehensive no-fault scheme. Finally, providing an equitable remedy could create additional burdens on the courts — which is contrary to one of the purposes of the No-Fault Law (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]) — and would complicate and add confusion to that statutory and regulatory scheme. Accordingly, the lower courts properly concluded that Aetna’s complaint should be dismissed.

Fahey, J.

(dissenting). I respectfully dissent because, in my view, Supreme Court erred in granting defendant’s cross motion to dismiss the complaint.

I generally agree with the majority’s recitation of the relevant facts. Both parties accepted premiums in exchange for the assumption of an obligation to insure Luz Herrera. Plaintiff covered Herrera pursuant to a policy of health insurance, while defendant provided coverage for her under a policy of automobile insurance, which included personal injury protection (PIP) (see 11 NYCRR 65-1.1 [d] [mandatory PIP endorsement]). In April 2008, Herrera was injured in an automobile accident; afterwards, defendant paid some, but not all, of the costs of medical treatment Herrera received as a result of the personal injuries she sustained in that incident. The balance of those costs was paid by plaintiff in its capacity as Herrera’s health insurer. Plaintiff subsequently asserted a lien against any recovery Herrera may have in the personal injury action she commenced in relation to the accident. At some point, Herrera assigned her rights against defendant to plaintiff.

According to plaintiff, its involvement in payment for Herrera’s medical care following the accident is attributable to the fact that Herrera’s medical providers mistakenly submitted bills for treatment of her accident-related injuries to plaintiff when, in fact, such bills should have been tendered to defendant. No matter, those facts speak to the core problem underlying this appeal, that is, that plaintiff, as Herrera’s health insurer, paid medical expenses arising from the accident that defendant, Herrera’s no-fault insurer, should have paid and has since refused to pay.

Based on those facts plaintiff commenced this action seeking damages in the amount of medical expenses that it had paid on Herrera’s behalf in defendant’s stead. In my view, the claims asserted in the complaint speak to what effectively is a single cause of action sounding in equitable subrogation. I also believe that, on this record, plaintiff should be permitted to pursue that subrogation cause of action.

Subrogation, of course, “is the principle by which an insurer, having paid losses of its insured, is placed in the position of its insured so that it may recover from the third party legally responsible for the loss” (Winkelmann v Excelsior Ins. Co., 85 NY2d 577, 581 [1995]; see generally 16 Steven Plitt et al., Couch on Insurance 3d § 225:5). Said another way, “[s]ubrogation allocates responsibility for the loss to the person who in equity and good conscience ought to pay it, in the interest of avoiding absolution of a wrongdoer from liability simply because the insured had the foresight to procure insurance coverage” (North Star Reins. Corp., 82 NY2d at 294; see Millennium Holdings LLC v Glidden Co., 27 NY3d 406, 414 [May 5, 2016] [same]). “The right arises by operation of law when the insurer makes payment to the insured” (North Star Reins. Corp., 82 NY2d at 294), and the doctrine

“is broad enough to include every instance in which one party pays a debt for which another is primarily answerable and which in equity and good conscience should have been discharged by the latter, so long as the payment was made either under compulsion or for the protection of some interest of the party making the payment, and in discharge of an existing liability” (Gerseta Corp. v Equitable Trust Co. of N.Y., 241 NY 418, 425-426 [1926]).

In concluding that the Appellate Division order should be affirmed, the majority suggests that to permit plaintiff to proceed against defendant here would be inconsistent with the no-fault scheme (see majority op at 579, 582-583). As the theory goes, because plaintiff is not a “provider [ ] of health care services” within the meaning of 11 NYCRR 65-3.11 (a), it is ineligible to receive direct payment from defendant.

Nothing in the no-fault scheme precludes plaintiff from pursuing this action. Trouble with respect to a remedy does not equate to trouble with respect to the merits of a cause of action. Recovery with respect to plaintiff’s cause of action— which, as noted, in my view sounds in equitable subrogation— would be indirect. That is, plaintiff, likely barred from receiving direct payments from defendant by the no-fault regulations (see 11 NYCRR 65-3.11 [a]), theoretically would seek reimbursement through the medical providers to be reimbursed by defendant pursuant to the responsibilities defendant may have under the policy of automobile insurance through which it covers Herrera (see 11 NYCRR 65-1.1 [d] [including the requirement that the insurer “will pay first-party benefits to reimburse for basic economic loss sustained by an eligible injured person on account of (qualifying) personal injuries,” subject to the insured’s satisfaction of policy conditions]). Those providers, in turn, would reimburse plaintiff for double payments, that is, full payments made by both plaintiff and defendant for a single service rendered, either voluntarily or pursuant to contractual clawback efforts initiated by plaintiff. A meandering path to recovery does not mean that an equitable subrogation “road” to plaintiff is closed here.

Finally, in my view, permitting plaintiff to proceed with its equitable subrogation cause of action is consistent with the purpose of the no-fault scheme. Complex as the scheme may be (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286 [1997], rearg denied 90 NY2d 937 [1997]), its mission includes consumer protection through a structure designed to limit costs and promptly resolve injury claims (see Pommells v Perez, 4 NY3d 566, 570-571 [2005]). Here, although Herrera has been harmed twice — through both the accident and the lien placed by plaintiff on any recovery she may have with respect to that incident — defendant has not been required to answer for its claims handling and coverage determination. No-fault was designed to avoid such a result.

It is beyond dispute that the no-fault scheme was not intended to impose upon an injured person such as Herrera either the significant additional burden of the lien in question or the toll associated with discharging that claim and seeking to hold defendant to its coverage obligations. That the scheme is comprised of a thicket of rules and regulations does not mean that the inequitable result here should stand.

For the foregoing reasons I would hold that the lower courts erred in concluding that the complaint should be summarily dismissed, and I would modify the Appellate Division order by denying defendant’s cross motion.

Chief Judge DiFiore and Judges Abdus-Salaam, Stein and Garcia concur; Judge Stein in a concurring opinion; Judge Fa-hey dissents in an opinion in which Judge Rivera concurs.

Order affirmed, with costs.

      . The documents stated, “This is not a bill;

      . Contrary to the view of the dissent, there is nothing inequitable in adhering to the “no-fault” statutory and regulatory law in resolving this claim for reimbursement.

      . The former Insurance Department now falls within the Department of Financial Services (see Financial Services Law § 102), which has posted the former agency’s informal opinions on its website.

      . Subrogation may also be available under a contract, which is distinguishable from equitable subrogation. In addition, there may be equitable subrogation situations outside the no-fault context in which an insurer seeks recovery from another party who is not a wrongdoer, but we have no occasion to address such situations here.

      . The validity of that lien, which has been asserted in a separate action, is not before us.

      . Under this scenario, while Hanover might deny payment due to untimely submission (see 11 NYCRR 65-1.1), the medical providers would be the ones suffering the loss of payment, which would not be inequitable because they submitted the bills to the incorrect insurer in the first instance. This only highlights how permitting Aetna to recover via equitable subrogation would be inconsistent with the no-fault scheme, especially the insistence on timely resolution of claims (see e.g. Insurance Law § 5106 [a]; 11 NYCRR 65-1.1, 65-2.4 [b], [c]; 65-3.8 [c]).

      . Although subrogation has its roots in equity (see ELRAC, Inc. v Ward, 96 NY2d 58, 75 [2001]; North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281, 294 [1993]), we have recognized a right of subrogation based on a contractual relationship, that is, “where the subrogee’s rights are defined in an express agreement between the insurer-subrogee and the insured-subrogor” (Federal Ins. Co. v Arthur Andersen & Co., 75 NY2d 366, 372 [1990]). That doctrine of “contractual subrogation” is distinguishable from the principle of “equitable subrogation” at issue here.

      . The majority also concludes that plaintiff cannot proceed against defendant here because Herrera assigned her rights against defendant to her medical providers and therefore no longer has “shoes” in which to permit plaintiff to “stand” on her behalf (see majority op at 582-583). Even assuming, arguendo, that Herrera had assigned the right to direct payment from defendant to her health care providers (see 11 NYCRR 65-3.11 [a]), she retained both her right to seek enforcement of defendant’s obligations under the mandatory PIP endorsement (11 NYCRR 65-1.1 [d]) and the ability to assign that right.

      . The majority essentially concludes that the no-fault scheme preempts or forecloses a common-law remedy here because of the difficulty inherent in recovering with respect to that cause. However, there is always room for equity.

      . It may be that defendant has a valid defense to coverage based on Herrera’s delay in notifying defendant of her claims (see 11 NYCRR 65-1.1 [d] [providing, in relevant part, that in the case of a claim for health services rendered, an eligible injured person shall submit written proof of a claim within 45 days after the date services were rendered unless there is a clear and reasonable justification for the failure to comply with that time limitation]). However, the questions whether Herrera gave timely notice of her claims and, if not, whether defendant is precluded from denying some or all of those claims (see Presbyterian Hosp. in City of N.Y., 90 NY2d at 278; see also Mount Sinai Hosp. v New York Cent. Mut. Fire Ins. Co., 120 AD3d 561, 562 [2d Dept 2014]) are not now for this Court given the posture of this case.


source: Caselaw Access Project

author:
Fahey, J.
      Pigott, J.

license: Public Domain

text:
    [56 NE3d 207, 36 NYS3d 425]
    The People of the State of New York, Respondent, v Anthony Berry, Appellant.
    Argued May 5, 2016;
    decided June 14, 2016

      Robert S. Dean, Center for Appellate Litigation, New York City (.Barbara Zolot of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Grace Vee and Susan Gliner of counsel), for respondent.
   OPINION OF THE COURT

Fahey, J.

We hold that the evidence offered was legally insufficient to support the conclusion that defendant “permitted]” underage children to “enter or remain” in a place of drug activity (Penal Law § 260.20 [1]). To establish that a defendant permitted a child to enter or remain in a particular place, premises, or establishment, within the meaning of Penal Law § 260.20 (1), the People must show that the defendant had a relation either to the child or to the place, premises, or establishment, such that he or she could control whether the child entered or remained there.

I.

On the morning that defendant was arrested, police officers executing a search warrant broke open the door of an apartment in Brooklyn and found the target of the warrant, TH, asleep in the living room with two of her children, a grandchild, and defendant. The children were nine years, five years, and six months old, respectively. The police found loose crack cocaine on a cabinet shelf in the kitchen.

According to testimony given by one of the police officers at defendant’s trial, defendant was sleeping in the same sofa bed as TH and the children. The officer testified that defendant said that his clothes were in one of the bedrooms, and that defendant was permitted to get dressed with clothes found in that room. When the police searched a different pair of jeans that was located next to the sofa bed, they found bags of crack cocaine and a key; because the police had battered down the front door, they could not tell whether the key matched the door.

Significantly, defendant had no legal relationship to TH’s children or grandchild. He was not the father or a guardian of the children. TH’s name was on the lease agreement for the apartment. Defendant’s name was not on the lease agreement, but appeared on a cable television bill addressed to him at the apartment.

TH and defendant were arrested and jointly charged not only with criminal possession of a controlled substance but also with three counts each of unlawfully dealing with a child in the first degree (Penal Law § 260.20 [1]). TH pleaded guilty to one count of criminal possession of a controlled substance in the third degree and one count of unlawfully dealing with a child in the first degree, and she was sentenced to five years’ probation. Defendant proceeded to a jury trial.

With respect to the unlawfully dealing with a child charges, the People’s theory at trial was that defendant permitted the children to remain in TH’s apartment insofar as he did not call the police or “anybody” to report that children under 18 lived in the apartment.

TH testified for the defense. She described defendant as a trusted friend, but testified that he had no “authority” over the children and was never left alone with them. This testimony was uncontested by the People. No proof was offered by the People that defendant exercised any control over the children. TH also testified that defendant did not live in the apartment, that he had stayed overnight only a few times, and that he was sleeping on a mattress on the floor next to the sofa bed, not in that bed with her and the children.

The jury found defendant guilty of the three counts of unlawfully dealing with a child in the first degree, but acquitted him of the drug possession charges. Defendant moved to set aside the verdict under CPL 330.30 (1), contending that the evidence was legally insufficient because he was not the parent or guardian of the children and had no legal authority over them. The trial court denied the motion, concluding that there was proof that defendant permitted the children to remain on the premises, and ultimately sentenced defendant to three concurrent one-year jail terms.

The Appellate Division affirmed the trial court’s judgment, noting that Penal Law § 260.20 (1) “does not require a defendant to have a legal responsibility for the care or custody of the child” (People v Berry, 122 AD3d 414, 415 [1st Dept 2014]). A Judge of this Court granted defendant leave to appeal (25 NY3d 987 [2015]), and we now reverse.

II.

A person is guilty of the class A misdemeanor of unlawfully dealing with a child in the first degree under Penal Law § 260.20 (1) if he or she

“knowingly permits a child less than eighteen years old to enter or remain in or upon a place, premises or establishment where sexual activity as defined by article one hundred thirty [Sex Offenses], two hundred thirty [Prostitution Offenses] or two hundred sixty-three of this chapter [Sexual Performance by a Child] or activity involving controlled substances as defined by article two hundred twenty of this chapter [Controlled Substances Offenses] or involving marihuana as defined by article two hundred twenty-one of this chapter [Offenses Involving Marihuana] is maintained or conducted, and he [or she] knows or has reason to know that such activity is being maintained or conducted.”

The statute was added with the revision of the Penal Law in New York in 1965. Its predecessor was former Penal Law § 484 (2), which made it a misdemeanor to “admití ] to or allow[ ] to remain in any reputed house of prostitution or assignation, or in any place where opium or any preparation thereof is smoked, any child actually or apparently under the age of sixteen years.” The 1965 statute provided that an individual is guilty of unlawfully dealing with a child if he or she “knowingly permits a child less than eighteen years old to enter or remain in a place where illicit sexual activity or illegal narcotics activity is maintained or conducted” (Penal Law § 260.20 [2], as added by L 1965, ch 1030).

The statute was amended in 1992. Instead of referring to “illicit sexual activity or illegal narcotics activity,” the 1992 amendments provided cross-references to the statutes defining such prohibited sexual or narcotics activity (see L 1992, ch 362, § 1). At the same time, the legislature modified the statute to include a “premises” and an “establishment” among the venues where a child cannot be allowed “to enter or remain” if one of the proscribed types of activity occurs there (see id,.).

In support of the 1992 amendments, the assembly wrote that

“[promoting the corruption of children is one of the most abominable acts a person can commit. The State has a responsibility to protect our children from those who exploit them for illicit purposes. . . . This act would . . . clarify the definitions of those offenses punished by this section, making it easier to prosecute those individuals unlawfully dealing with a child” (Sponsor’s Mem, Bill Jacket, L 1992, ch 362 at 10).

III.

Defendant contends that the evidence is legally insufficient to show that he possessed the “authority over either the children or the apartment” required to permit the children to remain in the apartment. He does not contest that he knew or had reason to know that offenses involving controlled substances took place in the apartment.

First, defendant argues that the evidence does not establish that he had authority over the apartment. To the extent defendant suggests that he could not be convicted of unlawfully dealing with a child in the absence of proof that he had the legal authority to determine who may enter the premises — a power that a houseguest does not normally possess (see generally Minnesota v Olson, 495 US 91, 99 [1990]) — his contention relies on a false premise. The People might demonstrate that a defendant permitted children to enter or remain in a place by showing that the defendant had legal authority over that place, for example as owner or lessee, and allowed children in, but the statute does not require such a showing in every case.

Penal Law § 260.20 (1) does not specify any particular legal relation that a defendant must have to the premises. Notably, when the legislature amended the statute in 1992 to cover any “premises” or “establishment” where prohibited sexual or narcotics activity is conducted, it did not take the opportunity to restrict the statute so as to apply only to defendants with legal authority over premises or establishments. Moreover, the statute may be read to apply to a parent who knowingly permits his or her child to enter a premises or establishment such as a crack house or brothel, regardless of whether the parent has any property interest in, or employment relation to, that premises or establishment. Someone without legal authority over a place may still permit a child to enter or remain in it, within the meaning of the statute. Defendant points to no basis in legislative history or policy for concluding that the statute is limited to defendants with legal authority over the premises. The plain language of the statute is purposely broad in scope. Consequently, we reject defendant’s argument that the People were required to show that he had legal authority over the apartment.

Defendant’s second contention is that the evidence does not establish that he had authority over the children, and therefore the prosecution did not show that defendant was in a position to permit the children to remain upon the premises. Defendant suggests that he could be found guilty of unlawfully dealing with a child in the first degree only if he had a legal duty to the children as their parent or guardian or under a doctrine of in loco parentis whereby he had assumed all the responsibilities incident to parenthood (see generally People v Munck, 92 AD3d 63, 70-71 [3d Dept 2011]).

It is clear from the plain language of the unlawfully dealing with a child statute, however, that Penal Law § 260.20 (1) is not limited in scope so as to apply only to a defendant who has a preexisting legal relation to the child in question. This is illustrated by a comparison between Penal Law § 260.20 (1) and Penal Law § 260.10 (2), one of the subdivisions of the endangering the welfare of a child statute, which specifies that the defendant must be “a parent, guardian or other person legally charged with the care or custody of a child less than eighteen years old,” in order to be guilty under that statute (Penal Law § 260.10 [2]; see generally People v Carroll, 93 NY2d 564 [1999]; cf. Penal Law § 260.10 [1]). No similar, restrictive language appears in the unlawfully dealing with a child statute.

Moreover, the statute may be read to apply to a babysitter or other childcare provider who knowingly permits a child to enter a premises or establishment such as a crack house or brothel, even if that person has not undertaken all of the “responsibilities incident to parenthood” (Munck, 92 AD3d at 71 [internal quotation marks and citations omitted]). For these reasons, defendant’s in loco parentis theory does not harmonize with the statute under analysis here.

Instead, we hold that to establish that a defendant permitted a child to enter or remain in a particular place, premises, or establishment, under Penal Law § 260.20 (1), the People must show that defendant’s relation to the child or to the place, premises or establishment was of such a kind that defendant had some ability to control the child, so as to permit the child to enter or remain in the place in question. Moreover, a mere ability to notify authorities does not constitute such ability to control, or the statute might apply to anyone who comes into contact with a child entering or remaining in one of the proscribed places.

We reach this conclusion primarily on the basis of the conceptual relation between permission and control. One who lacks the power to control another person cannot be charged with permitting him to act (see generally People v Bergerson, 17 NY2d 398, 403 [1966] [interpreting former Penal Law § 483 (2) (endangering the life or health of a child), which used the word “permits,” to mean that defendant must have some degree of “control” over the child in order “to comply with and be subject to the statute”]).

The legislative history supports this analysis. That history demonstrates that the statute was intended “to protect . . . children from those who exploit them for illicit purposes” (Sponsor’s Mem, Bill Jacket, L 1992, ch 362 at 10 [emphasis added]), indicating that the law targets those who are in a position to exert influence and control over children, as opposed to one who has knowledge that a child is remaining in a place where illegal narcotics or sexual activity is conducted but no authority to control the child.

IV.

Here, the People offered no evidence that supports the conclusion that defendant could prevent the children from remaining on the premises or, conversely, allow them to remain. Viewed in the light most favorable to the prosecution, the evidence establishes at most that defendant had access to TH’s apartment, and spent the night there regularly. There is no evidence, however, that defendant ever fed, babysat, or otherwise cared for the children in any manner or had any authority over them. Indeed, there is no evidence that defendant was ever alone with the children. Moreover, the People do not deny that the apartment was the children’s home — where they were present with TH, an adult who was responsible for their care — and the People propose no theory as to how, short of kidnapping, defendant might have directly prevented them from remaining there.

The sleeping arrangements at the time defendant was arrested are insufficient evidence of control. They may be evidence of possible intimacy between TH and defendant, but they are not evidence of control over the children. Nor can ability to control the children be deduced from the evidence suggesting that defendant may have left clothes at TH’s apartment, had use of a key to the apartment, and given permission for his name to be used for cable television billing purposes. Such factors may support the inference that defendant spent leisure time at TH’s apartment, or even that, in some sense of the word, he temporarily “lived” there (dissenting op at 600), but they do not ground the conclusion that he had any ability to control the children’s movements.

For these reasons, the evidence is legally insufficient to establish that defendant permitted TH’s children and grandchild to remain in the apartment within the meaning of Penal Law § 260.20 (1).

V

Accordingly, the order of the Appellate Division should be reversed, the judgment vacated, and the indictment dismissed.

Pigott, J.

(dissenting). Penal Law § 260.20 (1) is designed to protect children from being exposed to illicit drug and sexual activity in whatever setting such harmful activity may be taking place. The statute’s language is quite broad. “[A]ny person” who “knowingly permits a child” to “enter or remain” in “a place, premises or establishment” where the illegal activities are taking place, and who “knows or has reason to know” that such activity is being “maintained or conducted,” is guilty of a misdemeanor.

There is no dispute that defendant knew or had reason to know of the illegal drug activity happening in the apartment. Police found in plain view in the kitchen, on the second shelf of a cabinet which had no door, a plate with powdered cocaine. They also discovered crack cocaine packaged for sale in “dime bags” in a pair of jeans, as well as a significant amount of cash in a laundry bag. The mother, the lessee of the apartment, admitted at trial that she had been selling drugs out of the apartment.

The majority concludes, however, that the evidence was insufficient to support the conviction because the People presented no evidence that defendant had control over the apartment. I disagree with that conclusion.

The standard for reviewing the legal sufficiency of the evidence is whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (People v Contes, 60 NY2d 620, 621 [1983] [emphasis omitted]).

Here, the People proffered testimony that when police entered the apartment, they found defendant in bed in the living room with the mother, two of her children, and her grandchild. Defendant was wearing only a tee shirt and boxer shorts. He told police that his clothes were in a drawer of a dresser in the bedroom. An officer found a key to the apartment in defendant’s jeans. A cable bill for the apartment was in defendant’s name.

Viewing this evidence in the light most favorable to the People, the jury could have reasonably rejected defendant’s claim that he was homeless and concluded that defendant lived in, or otherwise had control over, the apartment. Thus, in my view, the evidence established that defendant knowingly permitted three underage children to remain in an apartment where he knew, or had reason to know, that unlawful drug activity was being maintained.

Judges Rivera, Abdus-Salaam and Stein concur; Judge Pigott dissents in an opinion in which Chief Judge DiFiore and Judge Garcia concur.

Order reversed, judgment vacated, and indictment dismissed.

       Defendant supports his in loco parentis theory with the following argument. Defendant observes that the prosecution’s theory was that his failure to act constituted unlawfully dealing with a child, and he points out that an “omission” is defined by the Penal Law as “a failure to perform an act as to which a duty of performance is imposed by law” (Penal Law § 15.00 [3]). Penal Law § 15.00 (3) recognizes the well-established principle that “[f]or criminal liability to be based upon a failure to act it must first be found that there is a duty to act — a legal duty and not simply a moral duty” (1 Wayne R. LaFave, Substantive Criminal Law § 6.2 [a] [2d ed 2003]; see generally Jones v United States, 308 F2d 307, 310 [DC Cir 1962]).
      The People have no quarrel with defendant thus far, but insist that the statute itself expressly imposes the described legal duty (see LaFave § 6.2). By contrast, defendant suggests that he could be found guilty of unlawfully dealing with a child in the first degree only if he had a legal duty to the children as their parent or guardian or under the doctrine of in loco parentis (see id. § 6.2 [a] [1]).
      We need not decide in this appeal what theory of duty would underlie the successful prosecution of a defendant under Penal Law § 260.20 (1) for a failure to act. We note only that, to the extent that the underlying duty to act is based upon a “personal relationship[ ]” (LaFave § 6.2 [a] [1]) between a defendant and a child, there is no evidence of any such relationship here.

       The majority takes issue with the fact that the People presented no evidence that defendant ever “fed, babysat, or otherwise cared for the children” or that he was ever alone with them (majority op at 599). None of these factors, however, are necessary to the inquiry. Indeed, the majority recognizes that the People need only prove a relation to the child or to the premises (see id. at 598). Here, the People established the requisite relationship to the premises.


author: Garcia, J. Rivera, J.

text:
    [56 NE3d 203, 36 NYS3d 421]
    The People of the State of New York, Respondent, v Perry C. Griggs, Appellant.
    Argued May 3, 2016;
    decided June 14, 2016

      David C. Schopp, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams and Timothy P. Murphy of counsel), for appellant.

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

Garcia, J.

We are asked on this appeal chiefly to determine whether errors made by the prosecution before the grand jury require dismissal of the indictment and whether defense counsel provided ineffective assistance in failing to timely object to these errors. We agree with the Appellate Division in the first instance that defendant’s challenges are not preserved. With respect to the ineffective assistance claim, we also agree with the Appellate Division’s determination that counsel was not ineffective. Defendant’s remaining contentions regarding the legal sufficiency of the evidence and the fairness of his trial are partially unpreserved and otherwise meritless.

Defendant was charged with first-degree robbery after he displayed a firearm during a dispute with a taxi driver and took $30 from the driver. Defendant testified before the grand jury, where he was represented by counsel and shackled. The victim also testified. While the grand jury was sitting and before defendant testified, defendant’s counsel made a timely request that the prosecutor arrange for defendant’s ex-girlfriend (the “requested witness”), who was present for the beginning of the relevant dispute, to testify before the grand jury pursuant to CPL 190.50 (6). The requested witness had provided a sworn statement to the police on June 28, 2010 stating that she got out of the taxi at the beginning of the dispute and did not see anything afterwards. Although the prosecution received the request, the prosecution did not inform the grand jury of defendant’s request and the prosecution incorrectly included that person’s name on the CPL 710.30 notice of witnesses that had identified defendant. The grand jury subsequently returned an indictment charging defendant with robbery in the first degree. Defendant moved under CPL 210.20 to dismiss the indictment based upon the legal insufficiency of the evidence presented to the grand jury; that motion was denied in June 2011.

During a court appearance later that month, defendant’s counsel questioned the adequacy of the cautionary instruction, if any, that was given regarding defendant’s appearance in restraints and mentioned an issue with the testimony of the requested witness before the grand jury, but said that he and the prosecutor had agreed to “address that at a later date.” Later in that same proceeding, defendant raised his desire to proceed pro se, and the court instead appointed new defense counsel with whom defendant already had a relationship.

Two months later, at defendant’s urging and after a full voir dire of defendant, the court granted the request to proceed pro se, relieved new counsel, and appointed that same counsel to advise defendant for the remainder of the proceedings. A jury returned a guilty verdict in October 2011 and defendant was sentenced to a 20-year term of imprisonment based on his status as a second violent felony offender.

The Appellate Division unanimously affirmed the conviction and sentence, finding a majority of defendant’s challenges un-preserved. The Appellate Division also noted that “[although we agree with defendant that he should not have been shackled when he testified before the grand jury, we conclude that reversal on that basis is not warranted. As the People correctly contend, the prosecutor’s cautionary instructions to the grand jury were sufficient to dispel any potential prejudice to defendant” (117 AD3d 1523, 1523 [4th Dept 2014]). The Appellate Division also noted that the failure to inform the grand jury of the requested witness, while unpreserved, also had no possibility of prejudicing defendant because “the witness did not observe the criminal transaction at issue” (id.). A Judge of this Court granted leave to appeal (24 NY3d 1120 [2015]) and we affirm.

On appeal, defendant argues that certain errors before the grand jury require dismissal of the indictment, namely, the fact that he was shackled; that the prosecution asked certain cross-examination questions that referenced a pending indictment; and that the prosecution failed to inform the grand jury of the requested witness. None of these arguments are preserved, a fact which defendant concedes, and — contrary to his assertions on appeal — none implicate a mode of proceedings error.

Defendant argues that the preservation rule should be disregarded with respect to the shackling challenge because the prosecution inaccurately stated on the record that the court had previously denied such a challenge when he sought to move to dismiss the indictment on that basis. No circumstances excuse the preservation requirement: defense counsel was present during the grand jury proceeding while defendant was shackled. In any event, the failure to make an adequate showing on the record of the need for restraints does not constitute an unwaivable mode of proceedings error (see e.g. People v Cooke, 24 NY3d 1196, 1197 [2015]). Accordingly this challenge is unpreserved for this Court’s review.

Defendant made no attempt to preserve his challenge to the prosecution’s questions before the grand jury of his awareness of the potential for increased penalties in an unrelated pending indictment as a result of his conviction in this matter. Such a challenge requires preservation (see e.g. People v Bowen, 50 NY2d 915, 917 [1980]).

Finally, defendant’s challenge to the indictment based on the prosecution’s failure to inform the grand jury about the requested witness is unpreserved. Here the record demonstrates that before defense counsel was relieved, he likely knew of the fact that the requested witness had not actually testified and was discussing the matter with the prosecution. Defendant relieved counsel before he could fully address the issue with the court, and defendant and his legal advisor, who were aware of and had every incentive to follow up and seek to preserve an objection on this basis, did not do so. Moreover, any error does not rise to the level of a mode of proceedings error.

Not surprisingly, defendant next attempts to argue that counsel’s failure to preserve these claims constitutes ineffective assistance of counsel. This argument fails because defendant received meaningful representation from defense counsel. A defendant has received effective assistance “[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v Baldi, 54 NY2d 137, 146-147 [1981]). We have previously determined that counsel’s representation was effective even where defense counsel failed “to show up at the designated time to attend upon defendant’s opportunity to testify before the Grand Jury” and arrived at the grand jury after an indictment had been voted (People v Wiggins, 89 NY2d 872, 873-874 [1996]).

Here, defense counsel’s decision not to move to dismiss based on the questioning of defendant before the grand jury regarding a pending indictment was reasonable in light of the limited nature of the questioning and the remedial instruction provided. Moreover, defendant’s conduct substantially affected counsel’s ability to object and preserve arguments regarding the remaining issues. Counsel attempted to raise certain errors, particularly the shackling instruction and the absence of the requested witness’s testimony, with the court and the prosecution prior to being relieved as counsel upon defendant’s request. Counsel’s ability to ensure all relevant objections were made was undermined by defendant’s requests to proceed pro se. Furthermore, defendant and his legal advisor could have sought to cure any errors counsel made before he was relieved, and failed to do so (see People v Petgen, 55 NY2d 529, 535 [1982]). For these reasons, defense counsel’s failure to object to errors in the grand jury proceedings did not rise to the level of ineffective assistance of counsel.

Defendant’s challenges to the legal sufficiency of the evidence are partially unpreserved and otherwise meritless in light of the evidence upon which the jury could have based its decision. Finally, defendant’s argument that he was deprived of a fair trial because of “[a] pattern of severe prosecutorial misconduct” is unpreserved (People v Rossi, 24 NY3d 968, 970 [2014]).

Accordingly, the Appellate Division order should be affirmed.

Rivera, J.

(concurring). I agree with the majority that the challenges are unpreserved and on the facts of this case defendant was not denied effective assistance of counsel. To the extent the majority would shift blame for counsel’s failure to defendant for seeking to proceed pro se, I disagree that defendant acted in such an obstructionist manner as to undermine his defense and his claims regarding his counsel’s representation. However, counsel’s inactions do not constitute ineffectiveness warranting reversal, even for failing to challenge defendant’s appearance in shackles before the grand jury. The prosecutor’s instructions concerning the shackling were less than ideal but minimally sufficient to avoid prejudice to defendant.

Chief Judge DiFiore and Judges Pigott, Abdus-Salaam and Stein concur; Judge Rivera concurs in a separate concurring opinion; Judge Fahey taking no part.

Order affirmed.

       Defendant’s challenges to the sufficiency of the evidence that he stole property and consciously displayed a gun are unpreserved.


author: Stein, J.

text:
    [56 NE3d 222, 36 NYS3d 440]
    The People of the State of New York, Respondent, v Dayshawn Crooks, Appellant.
    Argued June 2, 2016;
    decided June 23, 2016

      Hug Law, PLLC, Troy (.Matthew C. Hug of counsel), for appellant.

      P. David Soares, District Attorney, Albany (.Brittany L. Grome of counsel), for respondent.
   OPINION OF THE COURT

Stein, J.

Defendant contends that he was entitled to a hearing pursuant to People v Darden (34 NY2d 177 [1974]) to determine whether the information provided by a confidential informant (Cl) was sufficient to establish probable cause to support a search warrant for defendant’s apartment. Because there was a basis in the record for the determination of the lower courts that the police established probable cause based on their own independent observations, without having to rely on the statements of the Cl, a Darden hearing was not required. Therefore, we affirm.

I.

A Cl approached Detective James Wood with information that an individual — who went by the street names “Day Day” and “Munch” — was selling drugs from an apartment on a certain street. The Cl had previously worked with other detectives in the same police department, providing reliable information that resulted in several arrests and convictions. The police conducted their own research to locate the apartment and determined that defendant — who was known as “Day Day”— resided there. Detectives showed the Cl photographs of the building and defendant to confirm that they had identified the correct location and person.

Wood arranged a controlled drug buy between the Cl and defendant. After confirming that the Cl had no contraband or money, detectives provided the Cl with buy money, and fitted the Cl with a transmitter wire to hear and record the audio of any interaction with defendant. Wood listened to the live audio throughout the transaction. A detective observed the Cl walk to the top of the stairs at defendant’s building, which contained three apartments — one in the basement, one on the first floor, and defendant’s on the second floor. Although the police could only hear, not visually observe, what occurred when the Cl was inside defendant’s apartment, the Cl did not make any other stops or interact with anyone outside the building on the way to or from the apartment. The Cl returned to the detectives with a substance that tested positive for cocaine.

Wood also arranged a second controlled drug buy. He again searched the Cl, gave him or her buy money, fitted the Cl with a wire and listened to the audio during the transaction. While the Cl was heading to defendant’s apartment, defendant apparently called the Cl and changed the location of the sale. Detectives observed the Cl go to the new location and meet defendant. Detectives also observed defendant leave his apartment, get into a minivan, drive to the new location, meet the Cl on the street and engage in some sort of transaction. The Cl, who was monitored visually and by audio, did not interact with anyone else or make any stops along the way. After this interaction with defendant, the Cl again turned over to the police a substance that tested positive for cocaine.

Wood submitted a search warrant affidavit, and a City Court Judge signed a warrant to search defendant’s apartment for drugs, paraphernalia, and proof of defendant’s residence there. When executing the warrant, detectives observed defendant open a window and throw out a plastic bag that was found to contain a large amount of cocaine. Defendant was not charged in connection with the two controlled buys but was charged, based on the execution of the warrant, with criminal possession of a controlled substance in the third degree (two counts) and criminally using drug paraphernalia in the second degree (two counts).

In his omnibus motion, defendant requested, among other things, a Mapp hearing and a Darden hearing. After the Mapp hearing, County Court denied suppression of the items seized during the search of defendant’s apartment and also found that a Darden hearing was unnecessary because reasonable cause for the search existed independently of the statements by the Cl to the police. Following a jury trial, defendant was convicted of the drug possession charges, but not the paraphernalia charges. The court sentenced him, as a second felony offender, to concurrent terms of eight years in prison and three years of postrelease supervision.

The Appellate Division affirmed, concluding that a Darden hearing was unnecessary because the probable cause for the warrant was based on independent police observations, not the Cl’s statements (129 AD3d 1207 [3d Dept 2015]). A Judge of this Court granted defendant leave to appeal (26 NY3d 966 [2015]).

II.

The sole question before us is whether a Darden hearing was required where the detectives monitored the Cl and defendant throughout the entirety of the encounters. Stated otherwise, the issue is whether the police established probable cause for the search warrant based on their own independent observations, or whether the Cl’s statements were necessary to establish probable cause.

In Darden (34 NY2d 177 [1974]), this Court balanced the need to assure the protection of confidential informants with the rights of criminal defendants to challenge the probable cause offered as justification for the seizure of evidence. We “held that, where ‘there is insufficient evidence to establish probable cause apart from the testimony of the arresting officer as to communications received from an informer,’ it would be ‘fair and wise’ for the People to ‘be required to make the informer available for interrogation before the Judge’ ” (People v Edwards, 95 NY2d 486, 492 [2000], quoting Darden, 34 NY2d at 181). We further stated in Darden that, when the identity of the Cl is raised at a suppression hearing, the court should conduct an in camera inquiry outside the presence of defendant and his counsel, and make a summary report regarding the existence of the informer and communications made by the Cl to the police, taking precautions to protect the anonymity of the Cl to the maximum extent possible (see Darden, 34 NY2d at 181). This procedure is “designed to protect against the contingency, of legitimate concern to a defendant, that the informer might have been wholly imaginary and the communication from him [or her] entirely fabricated. At the same time the legitimate interests of the police in preserving the anonymity of the informer [are] respected” (id. at 182). Such a procedure “is necessary in order to fulfill the underlying purpose of Darden: insuring that the confidential informant both exists and gave the police information sufficient to establish probable cause, while protecting the informant’s identity” (Edwards, 95 NY2d at 494; see People v Serrano, 93 NY2d 73, 76 [1999]). If, however, probable cause can be established without the Cl’s statements, a Darden hearing is unnecessary (see Edwards, 95 NY2d at 493; Serrano, 93 NY2d at 77).

In People v Adrion (82 NY2d 628 [1993]), this Court concluded that the information from a Cl’s tip was necessary to establish probable cause because, although the arresting officers personally observed some evidence of criminality, they possessed only reasonable suspicion without the information provided by the Cl (see id. at 633-634). Specifically, the lead FBI agent had “personally observed a number of suspicious circumstances,” but those observations were not sufficient to link the defendants to stolen property without the Cl’s statements (id. at 634). The Court found that “the informant’s tip was inextricably tied to every aspect of the People’s proof on the probable cause question,” and the officers’ observations were not truly independent of it, so the court could insist on production of the Cl to assure that he or she existed and actually communicated with the police (id. at 636). We noted that

“Darden concerns the . . . distinct problem of verifying the truthfulness of the police witness’s testimony about his or her dealing with a known informant. As to that question, the officer’s testimony regarding observed facts corroborating the accuracy of the informant’s purported tip is of no moment, since it does not aid the court in ascertaining that the source of the underlying information was, in fact, a real informant as distinguished from an unauthorized wiretap, an improper search or some other illegal origin. In situations where a question is raised about such matters, there is no satisfactory substitute for the production of the informant — or at least the production of extrinsic proof of the informant’s existence when the informant is demonstrably unavailable.
“What is at stake in Darden situations is the integrity of the proceeding itself” (Adrion, 82 NY2d at 635-636 [citations omitted]).

A very different factual situation was presented in People v Farrow (98 NY2d 629 [2002]). There, a Cl told the police about a planned drug transaction by a described person in a specific location. An officer went to that location, saw a person fitting the description given by the Cl, and observed that person reach into his pants and remove two pinkish translucent bags containing a chunky white substance (see id. at 630). Thus, while the police were initially alerted to the transaction by a Cl, the officer personally observed the defendant commit a crime. Contrasting the facts with those in Darden and Adrion, this Court held that a Darden hearing was unnecessary because “probable cause could be established by the independent observations of the police officer” (id. at 631).

The facts of the instant case are more analogous to Farrow than Adrion. Here, evidence was presented concerning two controlled drug buys. The People did not establish that the police directly observed that drugs or money were exchanged between defendant and the Cl in either transaction (compare Farrow, 98 NY2d at 630). However, such a showing was unnecessary because the People were not attempting to establish probable cause to arrest defendant for his participation in those drug buys. Instead, the People sought only to establish probable cause to search defendant’s apartment for drug activity. The proof concerning the two controlled buys — independent of the Cl’s statements — was sufficient to establish probable cause for that purpose.

The first controlled buy took place in defendant’s building. The police initially ensured that the Cl had no drugs, provided buy money and observed the Cl approach and enter defendant’s building. Wood monitored the live audio of the transaction and recorded it. Detectives then saw the Cl exit the building and, without making any stops or interacting with anyone else, return to them with cocaine.

The second controlled buy took place on the street. Detectives again confirmed that the Cl had no drugs, supplied buy money and a transmitting device, visually observed that the Cl did not interact with anyone else, observed defendant leave his apartment and drive to the arranged location, and witnessed defendant engaging in a transaction with the Cl, with the end result being that the Cl possessed cocaine. Additionally, the detectives engaged in live audio monitoring and recording of the entire transaction for each of the controlled buys. The recordings constitute extrinsic proof of the informant’s existence, to assure that he or she was not imaginary (see Adrion, 82 NY2d at 636; see also Darden, 34 NY2d at 182).

Based on our review of the evidence at the Mapp hearing— including the exhibits and testimony regarding the detectives’ personal observations concerning both controlled drug buys — we conclude that there is ample record support for the determination of the lower courts that the Cl was in possession of cocaine after the transactions with defendant in these controlled circumstances, which were visually observed by the police witnesses and constantly monitored by audio transmission. Therefore, no Darden hearing was necessary, because probable cause for the search warrant was established through independent police observations, even without the Cl’s statements concerning how he or she obtained the drugs. Accordingly, the Appellate Division order should be affirmed.

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Fahey and Garcia concur.

Order affirmed.