author:
Read, J.
      Chief Judge Lippman (dissenting in part).

text:
    [985 NE2d 128, 961 NYS2d 364]
    Gregory C. Miglino, Jr., as Executor of Gregory C. Miglino, Sr., Deceased, Respondent, v Bally Total Fitness of Greater New York, Inc., Appellant, et al., Defendant.
    Argued January 3, 2013;
    decided February 7, 2013

      POINTS OF COUNSEL

      Morrison Mahoney LLP, New York City (Brian P. Heermance and Demi Sophocleous of counsel), for appellant.
    I. Plaintiff assumed the risk of cardiac arrest when he engaged in strenuous physical activity at defendant’s health club. (Morgan v State of New York, 90 NY2d 471; Rutnik v Colonie Ctr. Ct. Club, 249 AD2d 873; Chappill v Bally Total Fitness Corp., 2011 NY Slip Op 30146[U].) II. Defendant is immune from liability under New York’s Good Samaritan Statute. III. Defendant had no legal duty to use an Automated External Defibrillator and, therefore, plaintiffs complaint fails to state a viable cause of action. (Rutnik v Colonie Ctr. Ct. Club, 249 AD2d 873; Putrino v

      Buffalo Athletic Club, 193 AD2d 1127; Chappill v Bally Total Fitness Corp., 2011 NY Slip Op 30146[U]; Vucetovic v Epsom Downs, Inc., 10 NY3d 517; Brown v Barry, 3 US 365; Janssen v Incorporated Vil. of Rockville Ctr., 59 AD3d 15; Digiulio v Gran, Inc., 74 AD3d 450, 17 NY3d 765.)

      Charnas Law Firm, P.C., Garden City (John V. Decolator and Scott E. Charnas of counsel), for respondent.
    I. The Appellate Division properly held that the complaint states a cognizable cause of action based upon Bally Total Fitness of Greater New York, Inc.’s failure to use its Automated External Defibrillator upon the decedent. (State of New York v Cities Serv. Co., 180 AD2d 940; Zappone v Home Ins. Co., 55 NY2d 131; Ragucci v Professional Constr. Servs., 25 AD3d 43; Westchester County Socy. for Prevention of Cruelty to Animals v Mengel, 266 App Div 151, 292 NY 121; Parvi v City of Kingston, 41 NY2d 553; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Kaplan v Dart Towing, 159 AD2d 610; Mirza v Metropolitan Life Ins. Co., 2 AD3d 808; Walsh v Town of Cheektowaga, 237 AD2d 947; Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579.) II. Bally Total Fitness of Greater New York, Inc. is not immune from liability under New York’s Good Samaritan Statute. (Salvia v Long Is. R.R., 207 AD2d 534; McDaniel v Keck, 53 AD3d 869.) III. Bally Total Fitness of Greater New York, Inc.’s assumption of risk argument is unpreserved. (Bingham v New York City Tr. Auth., 99 NY2d 355; Misicki v Caradonna, 12 NY3d 511.)
   OPINION OF THE COURT

Read, J.

On March 26, 2007, plaintiff Gregory C. Miglino, Jr.’s father, Gregory C. Miglino, Sr. (Miglino or decedent), collapsed while near the racquetball courts at a health club owned and operated by Bally Total Fitness of Greater New York, Inc. (Bally). Kenneth LaGrega, employed by Bally as a personal trainer, was standing at the club’s front desk with the receptionist when he learned of this medical emergency. The receptionist immediately called 911, and an announcement was broadcast summoning anyone with medical training to the front desk; the receptionist also brought the club’s Automated External Defibrillator (AED) to Miglino’s side. An AED is a portable medical device for delivery of an electroshock to restore normal heart rhythm (see Public Health Law § 3000-b [a]). As the 911 call was being made, LaGrega rushed to assist Miglino.

LaGrega saw that Miglino was lying on his back with his eyes open, breathing heavily and with normal color; he checked for and found a faint pulse. LaGrega was certified to operate an AED and to administer cardiopulmonary resuscitation (CPR), having successfully completed courses taught under the aegis of the American Heart Association to instruct people in these skills. He did not start CPR or use the AED, though, later declaring that he was trained to view such measures as “inappropriate in light of a breathing individual with detectable pulse.” LaGrega then left briefly to check on the status of the 911 response. When he returned, two club members previously known to him to be a doctor and a medical student were attending to Miglino and administering CPR. LaGrega assisted as needed, having concluded that the doctor and medical student were “in a better position [than he was] to continue caring for [Miglino] until paramedics arrived,” a judgment “in keeping with [his] American Heart Association training, as well as the emergency training [he] received from Bally.” Upon arrival, the ambulance personnel administered shocks to Miglino with an AED, but he never revived.

By summons and complaint filed on February 26, 2008, plaintiff, as executor of decedent’s estate, brought a wrongful death suit against Bally and Bally Total Fitness Corporation (Bally Total). The complaint alleged that Bally and Bally Total neither “provided nor caused to be provided a . . . person in attendance at the club” who was properly certified to operate an AED or perform CPR, as required by New York law; and that Bally employees negligently failed to use an available AED, or failed to use it within sufficient time, to save Miglino’s life. Bally and Bally Total served a joint answer to the complaint on April 8, 2008; by notice of motion dated June 23, 2008, they moved to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action.

Bally primarily argued that it was immune from liability under the State’s Good Samaritan Law (Public Health Law § 3000-a); Bally Total, that it did not own or operate the health club. In support of the motion, Bally submitted LaGrega’s affidavit, in which he described his training and the actions that he and other club personnel took to assist Miglino, related above, and copies of his CPR/AED certificate from the American Heart Association; Bally Total furnished the affidavit of its assistant vice-president and associate general counsel, who attested that Bally Total did not own, operate, manage or employ any personnel at the club, and therefore could not be vicariously liable for the acts or omissions alleged by plaintiff.

Plaintiff opposed Bally’s motion, contending that the Good Samaritan Law did not apply because, among other reasons, Bally’s employees did not, in fact, render emergency treatment to Miglino since LaGrega neglected to apply the AED; and that Bally had a statutory and common-law duty to use the AED. Plaintiff submitted the affidavit of a board-certified cardiologist, who opined that Miglino’s “chances of survival would have been significantly higher if the AED had been used within the first few minutes after his collapse” rather than upon arrival of the ambulance. Plaintiff did not oppose dismissal of the complaint against Bally Total.

On June 9, 2010, Supreme Court denied the motion in its entirety (2010 NY Slip Op 33790[U] [2010]). The court commented that Bally’s evidentiary affidavits made out a “strong, but not conclusive showing that the plaintiff does not have a cause of action” (id. at *2). The court added, however, that “plaintiff [was] not obligated to come forth with evidence as he would on a motion for summary judgment to withstand dismissal”; as a result, the judge, “being only concerned with the sufficiency of the plaintiffs pleadings, and not evidentiary matters,” determined that the complaint stated cognizable claims (id. at *2, *3).

In a decision and order dated December 27, 2011, the Appellate Division modified Supreme Court’s order by dismissing the complaint against Bally Total and otherwise affirming (92 AD3d 148 [2d Dept 2011]). The Second Department held, contrary to the First Department’s decision in Digiulio v Gran, Inc. (74 AD3d 450, 453 [2010], affd on other grounds 17 NY3d 765 [2011]), that General Business Law § 627-a, which mandates certain health clubs to maintain on premises at least one AED and an individual trained to operate it, “also imposes an affirmative duty of care upon the facility so as to give rise to a cognizable statutory cause of action in negligence for failure to [do so]” (92 AD3d at 150). The court additionally concluded that the complaint stated a cause of action against Bally “based solely upon common-law negligence” because “LaGrega assumed a duty by coming to the decedent’s assistance” (id. at 159, 160). Finally, the Appellate Division held that Bally Total was entitled to dismissal of the complaint insofar as asserted against it, as conceded by plaintiff both at Supreme Court and on appeal.

Bally subsequently moved in the Appellate Division for permission to appeal. By order entered on March 19, 2012, that court certified the following question to us: “Was the opinion and order of [the Appellate Division,] dated December 27, 2011, properly made with respect to the cause of action asserted against [Bally]?” We now answer the question in the negative, but affirm the result on procedural grounds only.

General Business Law § 627-a

General Business Law § 627-a (1) requires every health club, as defined under Public Health Law § 3000-d (1) (b), with 500 or more members to

“have on premises at least one [AED] and [to] have in attendance, at all times during staffed business hours, at least one individual performing employment or individual acting as an authorized volunteer who holds a valid certification of completion of a course in the study of the operation of AEDs and a valid certification of the completion of a course in the training of [CPR] provided by a nationally recognized organization or association.”

Subdivision (2) provides that “[h]ealth clubs and staff pursuant to [General Business Law § 627-a (1)] shall be deemed a ‘public access defibrillation provider’ as defined in [Public Health Law § 3000-b (1) (c)] and shall be subject to the requirements and limitations of such section” (General Business Law § 627-a [2]). Under section 3000-b (1) (c), a “public access defibrillation provider” means “a person, firm, organization or other entity possessing or operating an [AED] pursuant to a collaborative agreement under this section”; and subdivision (2) of section 3000-b states

“Collaborative agreement. A person, firm, organization or other entity may purchase, acquire, possess and operate an [AED] pursuant to a collaborative agreement with an emergency health care provider.[] The collaborative agreement shall include a written agreement and written practice protocols, and policies and procedures that shall assure compliance with this section. The public access defibrillation provider shall file a copy of the collaborative agreement with the [New York State Department of Health] and with the appropriate regional council prior to operating the [AED].”

Additionally, Public Health Law § 3000-b (4) provides that the “Mperation of an [AED] pursuant to this section [governing public access providers] shall be considered first aid or emergency treatment for the purpose of any statute relating to liability.” This is a clear reference to Public Health Law § 3000-a, the Good Samaritan Law, which protects volunteers who supply first aid or emergency treatment outside a medical facility from liability for injuries or death unless caused by their gross negligence. The broad goal of the Good Samaritan Law is to prompt aid by people under no duty to act who otherwise might be dissuaded by the prospect of ordinary tort liability.

Finally, General Business Law § 627-a (3) specifies that

“[p]ursuant to [Public Health Law § 3000-a (the Good Samaritan Law)] and [Public Health Law § 3000-b (Public Access Providers)], any public access defibrillation provider, or any employee or other agent of the provider who, in accordance with the provisions of this section, voluntarily and without expectation of monetary compensation renders emergency medical or first aid treatment using an AED which has been made available pursuant to this section, to a person who is unconscious, ill or injured, shall be liable only pursuant to [Public Health Law § 3000-a].”

Plaintiff contends (and the Second Department held) that section 627-a creates an affirmative duty for health clubs to use the AEDs which they are required to have available for a trained employee or authorized volunteer to employ in the event of a cardiac emergency. We do not agree. The provisions of section 627-a, read together with Public Health Law §§ 3000-a and 3000-b, to which they explicitly refer, and the words “volunteer” (General Business Law § 627-a [1]) and “voluntarily” (General Business Law § 627-a [3]) evince the legislature’s intent to protect health clubs and their employees from the risk of liability for ordinary negligence with respect to AEDs.

As the First Department pointed out in Digiulio, a health club had no duty at common law to use an AED, and could not be held liable for failing to do so (Digiulio, 74 AD3d at 452). Accordingly,

“to interpret section 627-a as implicitly creating a new duty would conflict with the rule that legislative enactments in derogation of common law, and especially those creating liability where none previously existed, must be strictly construed. The statute’s limitation of the liability of health clubs and their agents when ‘voluntarily’ using AEDs to aid stricken persons indicates that its use is not obligatory. While the Legislature meant to require health clubs to make AEDs available and encourage their use in medical emergencies, it did not intend to impose liability on clubs for usage failures” {id. at 453 [citations omitted]).

In sum, we now resolve the issue that we left open when we affirmed Digiulio on other grounds: we hold that General Business Law § 627-a does not create a duty running from a health club to its members to use an AED required by that provision to be maintained on site.

The dissent objects that our interpretation renders section 627-a “virtually meaningless” (dissenting op at 352) and “purposeless” {id. at 353). On the contrary, there is nothing meaningless or purposeless about a statute that seeks to insure the availability of AEDs and individuals trained in their use at locations—i.e., health clubs—where there is a population at higher risk of sudden cardiac arrest. Obviously, though, AEDs are not meant to be employed mindlessly. For example, the implied duty favored by the dissent would cause a dilemma for the lay health club employee whenever a volunteer medical professional is furnishing aid at the scene, as allegedly happened here and in Putrino v Buffalo Athletic Club (193 AD2d 1127 [4th Dept 1993], affd 82 NY2d 779 [1993]), discussed later.

A law that mandates the presence of AEDs and trained individuals at health clubs is easy to obey and enforce. The implied duty envisioned by the dissent is neither; such a duty would, engender a whole new field of tort litigation, saddling health clubs with new costs and generating uncertainty. The legislature is unlikely to have imposed such a new duty absent an express statement, especially given the remedy of treble damages provided by General Business Law § 628.

Common Law Liability

New York courts have viewed health clubs as owing a limited duty of care to patrons struck down by a heart attack or cardiac arrest while engaged in athletic activities on premises. For example, in Putrino, the decedent suffered a fatal heart attack while participating in an aerobics class at an athletic club. Plaintiff, administratrix of the decedent’s estate, claimed that the club’s employees negligently rendered emergency treatment to the decedent while awaiting the rescue squad. The court concluded, however, that the club was entitled to summary judgment where its personnel deferred to the superior medical training and experience of a nurse, called 911 immediately, and sent someone to the first floor to direct emergency personnel to the decedent.

In Rutnik v Colonie Ctr. Ct. Club (249 AD2d 873 [3d Dept 1998]), the decedent collapsed while playing racquetball during a tournament at a tennis club; the cause of death was later determined to be cardiac arrest as a consequence of atherosclerotic heart disease. The court held that the club had not breached any duty owed the decedent and was entitled to summary judgment where the entire staff was trained in CPR and 911 was called. The Appellate Division rejected the notion that the club was negligent for not having a defibrillator on hand in case a cardiac emergency cropped up during the tournament.

The facts in Digiulio were unusual. The decedent suffered cardiac arrest while exercising on a treadmill at a health club. There was an AED on the premises, as was by then required by section 627-a, but the employee trained in its operation saw that the device was stored in a glass case with a visible key lock mechanism. Later admitting to panic, he ran to the front desk to look fruitlessly for the key. In fact, though, the glass case was unlocked all along. Meanwhile, other staff called 911 and performed CPR. Emergency services personnel arrived within 10 minutes and successfully used their AED to restore Digiulio’s heartbeat. He had suffered anoxic brain damage by that time, however, and he died a few months later. On these facts, the Appellate Division determined that the “club’s employees more than fulfilled their duty of care by immediately calling 911 and performing CPR” (74 AD3d at 452); we agreed that the health club “did not breach any common-law duty to render aid to the decedent” (17 NY3d at 767).

In Putrino, Rutnik and Digiulio, the courts considered whether the health club defendants were entitled to summary judgment. In this case, though, Bally has moved to dismiss under CPLR 3211 (a) (7), which limits us to an examination of the pleadings to determine whether they state a cause of action. Further, we must accept facts alleged as true and interpret them in the light most favorable to plaintiff; and, as Supreme Court observed, plaintiff may not be penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face (see Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976] [as long as a pleading is facially sufficient, the plaintiff is not obligated to come forward with claim-sustaining proof in response to a motion to dismiss unless the court treats the motion as one for summary judgment and so advises the parties]).

Here, the complaint asserts that Bally did not “employ or properly employ life-saving measures regarding [Miglino]” after he collapsed. Bally’s motion is supported by affidavits that contradict this claim, by purporting to show that the minimal steps adequate to fulfill a health club’s limited duty to a patron apparently suffering a coronary incident—i.e., calling 911, administering CPR and/or relying on medical professionals who are voluntarily furnishing emergency care—were, in fact, undertaken. But, as noted before, this matter comes to us on a motion to dismiss, not a motion for summary judgment. As a result, the case is not currently in a posture to be resolved as a matter of law on the basis of the parties’ affidavits, and Miglino has at least pleaded a viable cause of action at common law.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs, and the certified question answered in the negative.

Chief Judge Lippman (dissenting in part).

Although the majority opinion recognizes a limited common-law duty running from a health club to its patrons who suffer a heart attack while exercising at the facility, it finds that an analogous statutory duty is not imposed by General Business Law § 627-a. Because I do not believe the statute should be interpreted in a way that renders it virtually meaningless, I respectfully dissent from that portion of the decision.

The statute plainly requires that health clubs maintain an automated external defibrillator (AED) on the premises and that a person trained in its use must be present during business hours (see General Business Law § 627-a [1]). In addition, as a public access defibrillation provider, the health club and its employees who render aid using the AED will be subject to liability only in accordance with Public Health Law § 3000-a—the “Good Samaritan” Statute (see General Business Law § 627-a [3]; Public Health Law § 3000-b [1] [c]). The Good Samaritan Statute provides that “any person who voluntarily and without expectation of monetary compensation renders first aid or emergency treatment” will not be liable for damages for injuries sustained as the result of such treatment, unless the injuries were caused by gross negligence on the part of the person rendering aid (see Public Health Law § 3000-a [1]).

The legislative history demonstrates that the intent behind requiring AEDs in health clubs was based on the recognition that the likelihood of cardiac arrest increases in locations where individuals engage in physical exertion and that there is a dramatic reduction in the fatality rate from such episodes with the immediate use of AEDs and CPR (see Assembly Mem in Support, Bill Jacket, L 2004, ch 186). Indeed, the measure was meant to “ensure a higher level of safety for thousands of [individuals who belong to health clubs” (Assembly Mem in Support, Bill Jacket, L 2004, ch 186). It should go without saying that the presence of an AED will be of no benefit whatsoever to a person in cardiac arrest unless, of course, it is actually used.

In the absence of any explicit statement concerning whether or not the statute imposes a duty to use the AED, the statute should be interpreted in a way that is consistent with its spirit and benevolent aim (see Matter of New York City Asbestos Litig. [Brooklyn Nav. Shipyard Cases], 82 NY2d 342, 352 [1993]; McKinney’s Cons Laws of NY, Book 1, Statutes § 96 at 210 [“The courts will assume that a statute was not enacted without some purpose, and also that it was a practical and reasonable one, directed to some useful result, beneficial to some persons; and, acting on such assumption, they will attempt to ascertain such purpose”]). The majority opinion, however, does the opposite. As read by the majority, the legislature enacted an essentially purposeless statute that requires health clubs to purchase AEDs and train employees to use them, but does not require that the devices be applied in any potentially lifesaving situation. I cannot agree with an interpretation that is so plainly contrary to accomplishing the goal of the legislation. I would find that plaintiffs statutory claim states a sufficient cause of action.

In light of the majority opinion, the legislature in its discretion may wish to revisit the statute and make clear that health clubs are in fact under a duty to make use of AEDs they are required to have on their premises.

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

Order, insofar as appealed from, affirmed, with costs, and certified question answered in the negative.

      . This provision defines “[h]ealth club” as
      “any commercial establishment offering instruction, training or assistance and/or the facilities for the preservation, maintenance, encouragement or development of physical fitness or well-being. ‘Health club’ as defined herein shall include, but not be limited to health spas, health studios, gymnasiums, weight control studios, martial arts and self-defense schools or any other commercial establishment offering a similar course of physical training” (Public Health Law § 3000-d [1] [b]).

      . Public Health Law § 3000-b (1) (b) defines an “emergency health care provider” as “(i) a physician with knowledge and experience in the delivery of emergency cardiac care; or (ii) a hospital licensed under article twenty-eight of this chapter that provides emergency cardiac care.”

      . Section 628 (1) specifies that “[a]ny buyer damaged by a violation of this article [30 (Health Club Services)] may bring an action for recovery of damages. Judgment may be entered in an amount not to exceed three times the actual damages plus reasonable attorney fees” (General Business Law § 628 [1] [emphases added]). This private right of action is available, by its literal terms, to enforce General Business Law § 627-a since “buyer” is defined in article 30 as “any individual who enters into a contract for services with a health club” (General Business Law § 621 [5]). Thus, if the legislature in section 627-a enacted a duty to use the AED, as the dissent contends, then violation of that duty would subject a health club to treble damages.


source: Caselaw Access Project

author: Graffeo, J.

license: Public Domain

text:
    [984 NE2d 902, 960 NYS2d 704]
    The People of the State of New York, Respondent, v Trevis D. Baker, Appellant. The People of the State of New York, Respondent, v Trevis D. Baker, Appellant.
    (Appeal No. 1.)
    (Appeal No. 2.)
    Argued January 8, 2013;
    decided February 7, 2013

      POINTS OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (Timothy S. Davis of counsel), for appellant in the first above-entitled action.
    As the words defendant uttered were neither erotic in nature nor likely to provoke a violent response, his criticism of Officer Michael Johnson was constitutionally protected, and therefore could not serve as a valid predicate for his arrest. (Johnson v Campbell, 332 F3d 199; Texas v Johnson, 491 US 397; Terminiello v Chicago, 337 US 1; Houston v Hill, 482 US 451; People v Cradle, 160 AD2d 891; People v Delhall, 131 AD2d 870; Riley v County of Broome, 95 NY2d 455; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Matter of Auerbach v Board of Educ. of City School Dist. of City of N.Y.,
      86 NY2d 198; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669.)

      Timothy P. Donaher, Public Defender, Rochester (Timothy S. Davis of counsel), for appellant in the second above-entitled action.
    If this Court reverses defendant’s conviction of criminal possession of a controlled substance in the third degree under indictment No. 409/2006, then his conviction of assault in the second degree under indictment No. 368/2006 must also be reversed, for he pleaded guilty under this indictment with the understanding that the sentence imposed would run concurrently with the sentence imposed on the other. (Boykin v Alabama, 395 US 238; Santobello v New York, 404 US 257; Brady v United States, 397 US 742; Johnson v Lumpkin, 769 F2d 630; People v Rowland, 8 NY3d 342; People v Taylor, 80 NY2d 1; People v Boston, 75 NY2d 585; People v Fuggazzatto, 62 NY2d 862; People v Calvi, 89 NY2d 868; People v Seaberg, 74 NY2d 1.)

      Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for respondent in the first and second above-entitled actions.
    I. The police had probable cause to arrest defendant for disorderly conduct. (People v Furet, 12 NY3d 740; People v Weaver, 16 NY3d 123; People v Bakolas, 59 NY2d 51; People v Todaro, 26 NY2d 325; People v Tichenor, 89 NY2d 769; People v Munafo, 50 NY2d 326; People v Dietze, 75 NY2d 47; Chaplinsky v New Hampshire, 315 US 568; Miller v California, 413 US 15; People v Couser, 94 NY2d 631.) II. If reversal were warranted in the drug case, that would not invalidate the assault conviction. (People v Fuggazzatto, 62 NY2d 862; People v Lowrance, 41 NY2d 303.)

      New York Civil Liberties Union Foundation, New York City (Daniel Mullkoff and Arthur Eisenberg of counsel), for New York Civil Liberties Union, amicus curiae.
    I. The speech at issue in this case is protected by the First Amendment. (Ashcroft v American Civil Liberties Union, 535 US 564; Brandenburg v Ohio, 395 US 444; Cohen v California, 403 US 15; Chaplinsky v New Hampshire, 315 US 568; Gooding v Wilson, 405 US 518; R.A.V. v St. Paul, 505 US 377; Hess v Indiana, 414 US 105; Texas v Johnson, 491 US 397; Houston v Hill, 482 US 451; Lewis v New Orleans, 415 US 130.) II. The Court’s analysis in People v Tichenor (89 NY2d 769 [1997]) does not apply because defendant here was engaged in pure speech, not conduct. (Norwell v Cincinnati, 414 US 14; Mt. Healthy City Bd. of Ed. v Doyle, 429 US 274; Devenpeck v Alford, 543 US 146.)
   OPINION OF THE COURT

Graffeo, J.

Following a verbal exchange between defendant and a police officer on a Rochester street, defendant was arrested for disorderly conduct. He challenged the legality of his arrest, arguing that the statements and conduct that preceded it did not rise to the level of disorderly conduct. We agree.

The facts giving rise to the disorderly conduct arrest are undisputed. On a spring evening at around 6:30 p.m., Officer Johnson and another police officer were parked in separate marked police vehicles on a residential street in Rochester. Johnson noticed that a woman (later determined to be defendant’s girlfriend) was standing in front of a house across the street from where he was parked and was videotaping his activities. Curious about the woman’s identity, Johnson ran the license plate of a Cadillac that was parked in her driveway and discovered that the plate number had been issued for a Toyota— not a Cadillac. Johnson briefly stepped out of his car to ask who owned the automobile and the woman responded that it was her grandfather’s vehicle. The officer then reentered his patrol car. A few minutes later, defendant Trevis Baker approached the open passenger-side window of Johnson’s car, leaned his head in and inquired why Johnson had checked the license plate. Johnson said something to the effect that he could run a plate if he wanted to.

Defendant started backing away from the police vehicle towards the middle of the street, swearing at the officer. When Officer Johnson asked “what did you say,” defendant repeated the profanity and accused Johnson of harassing him. After radioing his partner that he intended to make an arrest, Johnson exited his vehicle and, with the assistance of his partner, placed defendant under arrest. These activities apparently attracted the attention of various civilian bystanders and, by the time of the arrest, about 10 people had congregated on the sidewalk behind defendant and his girlfriend. In a search incident to arrest, the police discovered that defendant was in possession of 25 bags of crack cocaine. Defendant was subsequently indicted and charged with criminal possession of a controlled substance third degree, criminal possession of a controlled substance fourth degree and disorderly conduct.

Defendant moved to suppress the drugs found on his person, contending that the arrest for disorderly conduct was illegal, rendering the contraband fruit of the poisonous tree. At the suppression hearing, Officer Johnson testified to the events described above and the People introduced the videotape of the incident made by defendant’s girlfriend, which largely corroborated Johnson’s testimony. At the close of the proof, defense counsel argued that the police lacked probable cause for the disorderly conduct arrest because defendant’s statements were not uttered with the intent to annoy, harass or alarm, the culpable mental state under the disorderly conduct statute (see Penal Law § 240.20 [3]). Defense counsel further asserted that the First Amendment protects the right of a citizen to express disagreement with police actions, which was precisely all that defendant was doing in this case.

Crediting Officer Johnson’s uncontradicted testimony, County Court found that the police had probable cause to make the arrest, meaning that the resulting search was lawful and the contraband discovered incident thereto was admissible at trial. Following the denial of the suppression application, defendant was presented with a plea proposal that would simultaneously resolve the drug possession charges and unrelated assault charges from a separate pending indictment. If defendant pleaded guilty to one count of criminal possession of a controlled substance third degree in satisfaction of this indictment and one count of assault second degree in satisfaction of the assault indictment, County Court promised that he would receive concurrent terms of six years in prison plus appropriate post-release supervision (five years on the assault conviction and three years on the drug conviction). The court clarified that this disposition would not preclude defendant from challenging the denial of suppression on appeal, which defense counsel indicated was his intent. Defendant accepted this resolution, pleading guilty to the two offenses in satisfaction of both indictments, and County Court imposed the agreed-upon sentence.

In an appeal from the judgment in the drug possession case, defendant sought review of the suppression ruling (appeal No. 1) but the Appellate Division summarily affirmed (82 AD3d 1656 [2011]). In a separate appeal (appeal No. 2), defendant sought vacatur of his plea in the assault case in the event that he succeeded in his challenge to the suppression order. That appeal was also rejected by the Appellate Division (82 AD3d 1657 [2011]). A Judge of this Court granted defendant leave to appeal from both Appellate Division orders (18 NY3d 857 [2011]) and we now reverse.

Defendant argues that, if applied to criminalize his statements and conduct, Penal Law § 240.20 (3)—the disorderly conduct statute underlying his arrest—violates the First Amendment. He contends that the Court should avoid this result by construing the provision narrowly to permit prosecution only when the statements uttered by the accused either constitute obscenity (as that term has been defined in First Amendment cases) or “fighting words” and he claims that his arrest was unlawful because his utterances did not fall into either category. Before we can address what is, in effect, an as-applied challenge to the constitutional validity of the statute, we must first determine whether the Penal Law § 240.20 (3) arrest was lawful under our existing precedent. Thus, the threshold issue presented in this case is whether there was a record basis for the finding of the courts below that defendant’s disorderly conduct arrest was supported by probable cause. “Probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent [person] in believing that the offense has been committed” (People v Oden, 36 NY2d 382, 384 [1975]).

Under Penal Law § 240.20 (3), “[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . [i]n a public place, he uses abusive or obscene language, or makes an obscene gesture.” The offense has existed in one form or another for more than a century and has spawned a significant body of case law. As is clear from the precedent, critical to a charge of disorderly conduct is a finding that defendant’s disruptive statements and behavior were of a public rather than an individual dimension. This requirement stems from the mens rea component, which requires proof of an intent to threaten public safety, peace or order (or the reckless creation of such a risk). Thus, “a person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem” (People v Weaver, 16 NY3d 123, 128 [2011] [internal quotation marks and citation omitted]).

The “public harm” element is what distinguishes the disorderly conduct statute from other offenses that contain similar requirements but encompass disputes of a more personal nature (see People v Tichenor, 89 NY2d 769 [1997], cert denied 522 US 918 [1997] [contrasting disorderly conduct statute with harassment statute struck down in People v Dietze, 75 NY2d 47 (1989)]). As we have previously explained, this element performs an important narrowing function (see People v Bakolas, 59 NY2d 51 [1983]).

The significance of the public harm element in disorderly conduct cases cannot be overstated. In virtually all of our prior decisions, the validity of disorderly conduct charges has turned on the presence or absence of adequate proof of public harm. To determine whether the record supports an inference that the requisite mens rea was present, we have employed a contextual analysis that turns on consideration of many factors, including “the time and place of the episode under scrutiny; the nature and character of the conduct; the number of other people in the vicinity; whether they are drawn to the disturbance and, if so, the nature and number of those attracted; and any other relevant circumstances” (Weaver, 16 NY3d at 128). We have clarified that the risk of public disorder does not have to be realized but the circumstances must be such that defendant’s intent to create such a threat (or reckless disregard thereof) can be readily inferred (id.; People v Todaro, 26 NY2d 325, 329 [1970]).

For example, in Weaver (16 NY3d 123), the Court upheld a conviction involving a newlywed who created a disturbance that spilled from the parking lot of a hotel into the area outside a mini-mart and gas station in the middle of the night. When a police officer drove up to the hotel, which was situated in a quiet village, she found defendant yelling and waving his arms at his bride, who was seated on a curb weeping while still in full wedding attire. In the presence of the officer, defendant issued a stream of obscenities at his wife in a loud, aggressive and threatening tone. He then turned his attention to the police officer who had attempted to intervene, telling her that if she put her “hands” on him, she would be taking him to jail. After failing to heed repeated warnings to stop his disruptive behavior and calm down, defendant was arrested for disorderly conduct. We held that the arrest was lawful, concluding there was sufficient evidence that defendant’s statements and conduct evidenced an intent to create a risk of public harm given the late hour, the quiet nature of the surrounding community and the protracted, increasingly aggressive nature of defendant’s vocalizations.

Likewise, in Tichenor (89 NY2d 769), we declined to disturb a conviction that arose from a late night encounter between a bar patron and a police officer on the threshold of a busy drinking establishment. There, defendant uttered an obscenity and spit at the officer, who was walking by; defendant then shoved the officer as he approached. Intending to make an arrest for disorderly conduct, the officer—who was alone on foot patrol— directed defendant to step onto the sidewalk. A crowd of patrons gathered, yelling at the officer to leave defendant alone. At this juncture, defendant retreated into the bar, the officer followed and a scuffle ensued between defendant, the officer and a number of other bar patrons. In Tichenor, the Court had no difficulty inferring that the mens rea requirement was met—that there had been the intentional or reckless initiation of a risk of public harm. There, the risk came to fruition since defendant’s statement and conduct led to a brawl involving himself, the officer and numerous other bar patrons—a predictable result given the context of his obstreperous statements and conduct.

In contrast, we concluded that the public harm element was lacking in People v Munafo (50 NY2d 326 [1980]), a case where a landowner engaged in a confrontation with a State Power Authority construction crew that was attempting to erect a transmission line on a right-of-way that cut through his farmland. After firing a shot into the air (and being divested of his gun), defendant positioned himself in the path of a backhoe and, when he refused to move after being ordered to do so by police, he was arrested for disorderly conduct. Eight or 10 people witnessed the incident but no one was attracted to the scene by defendant’s conduct, nor did they get involved in his protest. We determined that the evidence was insufficient to support the disorderly conduct conviction since defendant’s actions took place in broad daylight on his own property far removed from any public thoroughfare, business or residence. Based on these facts, the Court observed that there was no indication that defendant sought to incite or involve the spectators, who were in the area before the confrontation, and the only fair inference was that “the differences between the authority and the defendant were confined to these two disputants rather than spread to the public” (id. at 332).

The same was true in People v Pritchard (27 NY2d 246 [1970]) where an off-duty deputy sheriff moonlighting as security for a teenage night club was present when a fight broke out between defendant and another youth. The proof indicated that defendant had reflexively become entangled in the scuffle when the other boy uttered provocative epithets. Although a group of onlookers had gathered around the two brawlers, the Court held that there was insufficient evidence to infer that defendant recklessly engendered a risk of public disorder. Instead, “[t]his purely personal clash and momentary teenage flare-up did not contain the seeds of such a crowd reaction nor did it attain the degree of gravity warranting criminal prosecution under the statute” (id. at 249). Moreover, there was no indication that the crowd of spectators “were moved by anything more than curiosity or whatever entertainment value the incident afforded” (id. at 248).

Under the multifactored analysis we have used in these prior cases, there is no record basis for the finding of probable cause in this case because the proof is insufficient to support the public harm element. During daylight hours on a public street, defendant made two abusive statements claiming harassment to a police officer who was seated in a patrol car. It is clear from the videotape that the public outburst was extremely brief, lasting about 15 seconds. The statements were not accompanied by menacing conduct—defendant was stepping away from the vehicle when he made them. And there is no basis to infer that Officer Johnson felt threatened by the statements. If he had, he would likely have remained in his vehicle, rolled up the windows, radioed his partner to do the same and requested backup. Instead, Johnson immediately exited his vehicle. The fact that another police officer was present—also safely ensconced inside his own patrol car and fully able to provide assistance—diluted the risk that others in the vicinity would join forces with defendant and gang up on Johnson.

Here, the risk to public order was far less than in Tichenor where the officer was alone on foot late at night when defendant instigated a confrontation on the doorstep of a crowded bar only a few feet away from other inebriated patrons. This case is also significantly distinguishable from Weaver, where a public spectacle was created by defendant yelling at his new bride. There, the protracted encounter involved more than a brief exchange of words between a defendant and a police officer. In Weaver, the focus of defendant’s invective was his wife—his attention was redirected at the police officer only after she came to the woman’s assistance—and defendant refused to stop even after multiple warnings by the police, supporting the inference that the disruptive behavior would continue and perhaps escalate absent interruption by the police.

Although it is true in this case that a group of bystanders gathered around defendant and his girlfriend—a fact certainly relevant to our public harm analysis—there is no evidence that the bystanders expressed any inclination, verbally or otherwise, to involve themselves in the dispute between defendant and Officer Johnson, nor did the suppression court draw any such inference. The assembly here was comparable to the group that gathered to watch the bar fight in Pritchard because there is no basis to infer that these spectators were motivated by anything other than curiosity. And, unlike Weaver, there was no significant likelihood that defendant’s brief statements—loud though they were—would disrupt peace and order in the vicinity. As is evident from the videotape, the incident occurred around dinner time on a heavily-populated city street bustling with car traffic and pedestrian activity.

Finally, this case includes one more factor worthy of consideration. Here, both at its inception and conclusion, the verbal exchange was between a single civilian and a police officer. The fact that defendant’s abusive statements were directed exclusively at a police officer—a party trained to defuse situations involving angry or emotionally distraught persons—further undermines any inference that there was a threat of public harm, particularly since the police officer was in a position of safety and could have closed his windows and ignored defendant. We do not suggest that the public harm element can never be present in such encounters; Tichenor demonstrates that this is not the case. But isolated statements using coarse language to criticize the actions of a police officer, unaccompanied by provocative acts or other aggravating circumstances, will rarely afford a sufficient basis to infer the presence of the “public harm” mens rea necessary to support a disorderly conduct charge.

After consideration of all relevant factors, we conclude that defendant’s arrest for disorderly conduct was not supported by probable cause due to insufficient proof on the public harm element. Because the arrest was unlawful under our long-standing precedent, we have no occasion to address defendant’s First Amendment arguments.

Since we have concluded that the arrest was invalid, the cocaine seized during the search incident to that arrest should have been suppressed. In this case, because the disorderly conduct charge was unlawful and the cocaine discovered during the search (the only evidence underlying those charges) must be suppressed, it follows that the indictment should have been dismissed in its entirety. Defendant is also entitled to vacatur of his guilty plea in the assault case, which was predicated on the promise that he would receive a sentence of six years of incarceration to be served concurrently to the identical prison sentence on the drug conviction—a promise that can no longer be kept (see People v Pichardo, 1 NY3d 126 [2003]).

Accordingly, in appeal No. 1, the order of the Appellate Division should be reversed, defendant’s motion to suppress physical evidence granted and the indictment dismissed. In appeal No. 2, the order of the Appellate Division should be reversed, defendant’s guilty plea vacated and the case remitted to County Court for further proceedings on the indictment.

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

In People v Baker (appeal No. 1): Order reversed, defendant’s motion to suppress physical evidence granted and the indictment dismissed.

In People v Baker (appeal No. 2): Order reversed, defendant’s plea vacated and case remitted to Monroe County Court for further proceedings on the indictment.

       In the typical case, probable cause determinations involve mixed questions of law and fact that are beyond our further review power if supported by any evidence in the record (see e.g. People v Furet, 12 NY3d 740 [2009]). But here an issue of law is presented because the probable cause issue distills to whether, viewed in the light most favorable to the People, the defendant’s statements and associated conduct witnessed by the police officer constituted the crime of disorderly conduct, justifying an arrest on that charge (see People v Oden, 36 NY2d 382, 384 [1975]; see generally People v McRay, 51 NY2d 594 [1980]).


author: Pigott, J.

text:
    [984 NE2d 909, 960 NYS2d 711]
    Bessie Caldwell et al., Appellants, v Cablevision Systems Corporation et al., Defendants, and Communications Specialists, Inc., Respondent.
    Argued January 8, 2013;
    decided February 7, 2013

      POINTS OF COUNSEL

      Profeta & Eisenstein, New York City (Fred R. Profeta, Jr., of counsel), and Schlemmer & Maniatis, LLP, for appellants.
    I. The agreement by defendant’s attorneys to pay $10,000 to a fact witness for one hour of testimony was unethical and constituted a bribe, and the testimony of that witness should have been stricken. (Clifford v Hughes, 139 App Div 730; Niesig v Team I, 76 NY2d 363; Matter of Robinson, 151 App Div 589, 209 NY 354; Golden Door Jewelry Creations, Inc. v Lloyds Underwriters Non-Marine Assn., 865 F Supp 1516; Maglione v Cunard

      S.S. Co., 30 AD2d 784; United States v Cervantes-Pacheco, 826 F2d 310; Sackler v Sackler, 15 NY2d 40; Mapp v Ohio, 367 US 643; Stagg v New York City Health & Hosps. Corp., 162 AD2d 595; Nordhauser v New York City Health & Hosps. Corp., 176 AD2d 787.) II. Contrary to the holding of the Appellate Division, both the failure to exclude Dr. Krosser’s testimony and the failure to give special instructions were not harmless, but were rather highly prejudicial. (Rothberg v Reichelt, 293 AD2d 948; Shufelt v City of New York, 80 AD2d 554; Smith v General Acc. Ins. Co., 244 AD2d 402; Carcamo v Stein, 53 AD3d 520; Melendez v New York City Tr. Auth., 196 AD2d 460; Carr v Burnwell Gas of Newark, Inc., 23 AD3d 998; Fields v City of New York, 4 NY2d 334.)

      Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Christopher Simone and Scott M. Fusaro of counsel), and Wilson, Elser, Moskowitz, Edelman & Dicker LLP, for respondent.
    I. Plaintiffs failed to preserve for appellate review the trial court’s alleged error in not striking Dr. Krosser’s testimony or giving a specific jury instruction regarding factual testimony by a paid witness. (Hunt v Bankers & Shippers Ins. Co. of N.Y., 50 NY2d 938; Matter of Khan v New York State Dept. of Health, 96 NY2d 879; Suria v Shiffman, 67 NY2d 87; Merrill v Albany Med. Ctr. Hosp., 71 NY2d 990; Feinberg v Saks & Co., 56 NY2d 206.) II. The Appellate Division correctly concluded that, in light of the limited nature of Dr. Krosser’s testimony, the trial court’s alleged error in failing to give a specific charge regarding factual testimony by a paid witness was at most harmless error that did not materially affect the outcome of the trial; the ultimate issue on appeal is unreviewable by this Court under these circumstances. (Walker v State of New York, 111 AD2d 164; Barbagallo v Americana Corp., 25 NY2d 655; Fishman v Scheuer, 39 NY2d 502; People v Crimmins, 36 NY2d 230; Fahy v Connecticut, 375 US 85; Chapman v California, 386 US 18; Flynn v Manhattan & Bronx Surface Tr. Operating Auth., 61 NY2d 769; Khan v Galvin, 206 AD2d 776; Nappi v Gerdts, 103 AD2d 737; Judson v Fielding, 253 NY 596, 227 App Div 430.) III. Plaintiffs’ proposed per se exclusionary rule for fact witnesses compensated beyond the statutory fee is legally unsupportable, impracticable and bad policy. The Appellate Division correctly found that the appropriate remedy, where a genuine issue of excessive compensation exists, is to permit opposing counsel to explore the issue on cross-examination and summation. (Pauzar v Children’s Hosp. of Buffalo, 167 AD2d 933; Davis v McDaniel, 60 Misc 2d 390; Matter of Dudley v Kerwick, 52 NY2d 542; Matter of Stephen, 239 AD2d 963; Clifford v Hughes, 139 App Div 730; Matter of Robinson, 151 App Div 589; Maglione v Cunard S.S. Co., 30 AD2d 784; Golden Door Jewelry Creations, Inc. v Lloyds Underwriters Non-Marine Assn., 865 F Supp 1516; United States v Cervantes-Pacheco, 826 F2d 310; United States v Persico, 832 F2d 705.) IV Plaintiffs failed to present a prima facie case of negligence. (Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539; Cohen v Hallmark Cards, 45 NY2d 493; Louman v Town of Greenburgh, 60 AD3d 915; Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434; Teplitskaya v 3096 Owners Corp., 289 AD2d 477; Hartman v Mountain Val. Brew Pub, 301 AD2d 570; Garvin v Rosenberg, 204 AD2d 388.)
   OPINION OF THE COURT

Pigott, J.

At issue on this appeal is whether the testimony of a subpoenaed fact witness, who receives a fee alleged to be disproportionately in excess of CPLR 8001 (a)’s mandatory fee requirement for attendance at trial, is inadmissible as a matter of law. We conclude that such testimony is generally admissible, but that the trial court should, in a proper case, charge the jury as to the witness’s potential bias, in light of the perceived excessiveness of the fee. Where, as here, the party that subpoenaed the witness offers no explanation for a fee that is seemingly in excess of reasonable compensation for lost time and incidental expenses, the trial court, upon a timely request by an objecting party, must charge as to the witness’s potential bias.

L

In September 2006, defendant Communications Specialists, Inc. (CSI), per its contract with Cablevision Systems Corporation, began the installation of high-speed fiber-optic cable underneath Benefield Boulevard in Peekskill, New York. The work required CSI to cut a two-foot-deep and four- or five-inch-wide trench along the entire length of the 3,000-foot street. CSI also dug 58 one-foot-wide “test pits” in certain locations adjacent to the trench in order to locate preexisting utility lines. CSI backfilled the trench and test pits but, at the time of the incident giving rise to this action, the street had not been repaved.

On October 11, 2006 at approximately 10:00 p.m., plaintiff Bessie Caldwell, who resided on Benefield Boulevard, took her dog out for a walk. She crossed Benefield Boulevard and walked the dog for a short distance. As she was crossing the street again, returning to her residence, plaintiff tripped and fell, injuring her leg.

Plaintiff and her husband (suing derivatively) commenced this negligence action against, among others, CSI for creating a hazardous and unsafe condition in the road by failing to properly backfill the trench and test pits, failing to properly or adequately pave over those areas, and failing to install temporary asphalt. After CSI answered and the parties conducted discovery, the matter proceeded to a bifurcated trial with liability being tried first.

Plaintiff testified that she stepped into a “dip in the trench” that caused her to fall. To rebut this testimony, CSI subpoenaed a physician who had treated plaintiff in the emergency room shortly after the accident. The doctor was called merely as a fact witness to testify concerning his entry in the “history” section of his consultation note that plaintiff “tripped over a dog while walking last night in the rain” (emphasis supplied). He testified consistently with his documented note. During cross-examination, plaintiffs counsel elicited from the doctor that CSI had paid him $10,000 for appearing and testifying. The doctor denied that his testimony was influenced by the payment, stating simply that he was there to “testify[ ] to my records.” His testimony consisted only of his verification that he made the entry into the emergency room record. No professional opinion was sought nor given. Plaintiffs counsel requested that the court strike the doctor’s entire testimony or, in the alternative, issue either a curative instruction or a jury charge concerning monetary influence.

The following day, before summations, plaintiff’s counsel asked that the court charge the jury that, pursuant to CPLR 8001, the doctor, as a fact witness, was entitled to a witness fee of $15 per day and $.23 per mile to and from the place where he was served with the subpoena. Defense counsel countered that the witness fee was the statutory minimum and that there was no prohibition against paying a fact witness for time missed from work. The court suggested that, rather than issuing a charge, the parties could address the issue during summation and the jury could draw whatever inference it wished from those facts. The court cautioned the parties against referencing the statutory criteria of CPLR 8001.

After summations, where the parties addressed the doctor’s fee payment in detail, the court gave the jury a general bias charge but made no specific reference to the doctor’s testimony or the payment he received for appearing at trial. Following deliberations, the jury found CSI negligent, but that such negligence was not a substantial factor bringing about the accident. Supreme Court denied plaintiffs motion to set aside the verdict. The Appellate Division affirmed, holding that although CSI’s “substantial payment” to the doctor did not warrant exclusion of his testimony, Supreme Court erred in failing “to adequately charge the jury regarding the suspect credibility of factual testimony by a paid witness,” but that reversal was not required because the error was harmless (86 AD3d 46, 48 [2d Dept 2011]).

IL

We, like the Appellate Division, are troubled by what appears to be a substantial payment to a fact witness in exchange for minimal testimony. Such payments, when exorbitant as compared to the amount of time the witness spends away from work or business, create an unflattering intimation that the testimony is being bought or, at the very least, has been unconsciously influenced by the compensation provided. While we are concerned by the amount the witness was paid for this minimal attendance and testimony, we conclude that the Appellate Division’s order should be affirmed under the circumstances of this case.

CPLR 8001 (a) provides that one who is compelled by subpoena to appear at trial is entitled to a $15 daily attendance fee and $.23 per mile in mileage fees. Although this is only the minimum that must be paid to a subpoenaed fact witness, that does not mean that an attorney may pay a witness whatever fee is demanded, however exorbitant it might be. Our courts and disciplinary rules have long acknowledged that “[t]o procure the testimony of witnesses it is often necessary to pay the actual expenses of a witness in attending court and a reasonable compensation for the time lost” (Matter of Robinson, 151 App Div 589, 600 [1st Dept 1912] [emphasis supplied], affd 209 NY 354 [1913]). “[T]here are [also] many incidental expenses in relation to the prosecution or defense of an action at law which can with propriety be paid by a party to the action” (id.; see Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.4 [b] [1] [permitting a lawyer to pay a witness “reasonable compensation ... for the loss of time in attending, testifying, preparing to testify or otherwise assisting counsel, and reasonable related expenses”]; see also NY St Bar Assn Comm on Prof Ethics Op 668 [1994]).

What is not permitted and, in fact, is against public policy, is any agreement to pay a fact witness in exchange for favorable testimony, where such payment is contingent upon the success of a party to the litigation (see Bergoff Detective Serv., Inc. v Walters, 239 App Div 439, 442-443 [1st Dept 1933]; Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.4 [b] [prohibiting a lawyer from paying, offering to pay or acquiescing “in the payment of compensation to a witness contingent upon the content of the witness’s testimony or the outcome of the matter”]). Of course, that situation is not presented here. The doctor’s testimony was limited to what he had written on his consultation note less than 12 hours after the accident and well before plaintiff commenced litigation. Nor can it be argued that the doctor tailored his testimony in exchange for the fee or that there is any record evidence that the doctor’s consultation note was fabricated.

Plaintiff argues that, having been subpoenaed, the doctor had a legal duty to appear and a legal right to only a $15 attendance fee, and because he was paid in excess of that amount, Supreme Court should have stricken his testimony. That argument, however, is without merit since the fee set forth in CPLR 8001 (a) is a minimum fee (see 234 Siegel’s Practice Review, When Does Fee for Fact Witness in Excess of Statutory Daily $15 Become Bribe, and What Roles Have Court and Jury in Looking into Issue? at 1 [June 2011] [noting that payment of more than the $15 daily fee is not precluded under either the law or code of ethics]). Nonetheless, the payment of such a disproportionate fee for a short amount of time at trial is troubling, and the distinction between paying a fact witness for testimony and paying a fact witness for time and reasonable expenses can easily become blurred. A line must therefore be drawn “between compensation that enhances the truth seeking process by easing the burden of testifying witnesses, and compensation that serves to hinder the truth seeking process because it tends to ‘influence’ witnesses to ‘remember’ things in a way favorable to the side paying them” (NY St Bar Assn Comm on Prof Ethics Op 668).

In addition to asking the trial court to strike the doctor’s testimony, plaintiffs counsel asked the court to charge the jury that, per the subpoena, the doctor was required by law to appear at trial and was entitled to a $15 attendance fee and $.23 per mile and “let [the jury] do with it what they will.” This was tantamount to a charge request for a special jury instruction relative to the doctor’s potential bias.

We agree with plaintiff that Supreme Court should have issued a bias charge specifically tailored to address the payment CSI made to the doctor. Supreme Court generally instructed the jury that bias or prejudice was a consideration that it should consider in weighing the testimony of any of the witnesses, but this was insufficient as it pertained to CSI’s payment to the doctor. To be sure, Supreme Court properly acted within its discretion in concluding that the fee payment was fertile ground for cross-examination and comment during summation. But because CSI did not even attempt to justify the $10,000 payment for one hour of testimony, Supreme Court should have also crafted a charge that went beyond the CPLR 8001 requirements. Supreme Court should have instructed the jury that fact witnesses may be compensated for their lost time but that the jury should assess whether the compensation was disproportionately more than what was reasonable for the loss of the witness’s time from work or business. Should the jury find that the compensation is disproportionate, it should then consider whether it had the effect of influencing the witness’s testimony (see PJI 1:90.4). Of course, such a charge must be requested in a timely fashion. Additionally, it is within the trial court’s discretion to determine whether the charge is warranted in the context of a particular payment to a witness, and to oversee how much testimony should be permitted relative to the fact witness’s lost time and other expenses for which he is being compensated.

We conclude that, although a more specific jury charge should have been given, Supreme Court’s failure to issue one in this case was harmless. The dispute underlying the doctor’s testimony was not whether he fabricated the contents of the consultation note. In other words, the substance of the doctor’s testimony was such that the jury’s assessment was only tangentially related to the doctor’s credibility.

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

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

Order affirmed, with costs.


author: Chief Judge Lippman.

text:
    [984 NE2d 917, 960 NYS2d 719]
    The People of the State of New York, Respondent, v Michael Palmer, Appellant. The People of the State of New York, Respondent, v Cornell Long, Appellant.
    Argued January 7, 2013;
    decided February 12, 2013

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (Anna Pervukhin of counsel), for appellant in the first above-entitled action.
    The Court erroneously elevated appellant’s Sex Offender Registration Act risk level by assessing him points for “drug and alcohol abuse” when the only relevant evidence was appellant’s statement that he drank some alcohol at an after work party the same night he committed the first of a series of sexual offenses. (Doe v Pataki, 3 F Supp 2d 456; People v Versaggi, 83 NY2d 123; People v Hedgeman, 70 NY2d 533; People v Wyatt, 89 AD3d 112; People v Mingo, 12 NY3d 563; People v Faul, 81 AD3d 1246; People v Irizarry, 36 AD3d 473; People v Titmas, 46 AD3d 1308; People v Collazo, 7 AD3d 595; People v Hueber, 81 AD3d 1466.)

      Charles J. Hynes, District Attorney, Brooklyn (Adam M. Koelsch, Leonard Joblove and Anthea H. Bruffee of counsel), for respondent in the first above-entitled action.
    The hearing court properly assessed defendant points for the risk factor of “drug or alcohol abuse,” based upon clear and convincing evidence that he was drinking alcohol on the night that he first sexually abused the victim. Thus, defendant’s designation as a risk level two (moderate risk) sex offender was proper. (People v Alemany, 13 NY3d 424; People v Sterling, 71 AD3d 654; People v Britt, 66 AD3d 853; People v Robinson, 55 AD3d 708; People v Long, 89 AD3d 1513, 18 NY3d 809; People v Stirrup, 91 NY2d 434; People v Giordano, 87 NY2d 441; Rocovich v Consolidated Edison Co., 78 NY2d 509; People v Faul, 81 AD3d 1246; People v Titmas, 46 AD3d 1308.)

      Barbara J. Davies, Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino and David C. Schopp of counsel), for appellant in the second above-entitled action.
    The Appellate Division erred when it found appellant to be a level two sexual offender after previously holding that the record was insufficient for meaningful appellate review and after the Sex Offender Registration Act hearing court again on the same record failed to make adequate findings of fact. (People v Miranda, 24 AD3d 909; People v Mingo, 12 NY3d 563; People v Deturris, 90 AD3d 727; People v Leopold, 13 NY3d 923; People v Smith, 11 NY3d 797; People v Wyatt, 89 AD3d 112; People v Mabee, 69 AD3d 820;
      People v Hueber, 81 AD3d 1466; People v Pettigrew, 14 NY3d 406; Mathews v Eldridge, 424 US 319.)

      Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty and Donna A. Milling of counsel), for respondent in the second above-entitled action.
    Defendant is properly classified as a level two sex offender. (People v Robinson, 55 AD3d 708, 11 NY3d 713; People v Faul, 81 AD3d 1246.)
   OPINION OF THE COURT

Chief Judge Lippman.

Under the Sex Offender Registration Act (SORA), Guidelines, and commentary, offenders are assessed 15 points under risk factor 11 if they have a history of drug or alcohol abuse or if they were abusing drugs or alcohol at the time of the sex offense. At issue in these two appeals is the extent of proof necessary to constitute clear and convincing evidence of “drug or alcohol abuse” under the SORA Guidelines. As the proof in these two cases failed to meet this standard, we conclude that Supreme Court improperly assessed each defendant.

L

Palmer

Defendant Michael Palmer was convicted of criminal sexual act in the second degree for sexually molesting his underage victim over a period of two years. When he was being interviewed for his presentence report, Palmer told the Probation Department that he “had been drinking alcohol at an after work party on the date he committed the [first] offense” in the summer of 2007. Defense counsel later stated that Palmer hoped to mitigate his behavior by telling the Probation Department that he had been drinking the first time he sexually abused his victim. There was no evidence that Palmer was intoxicated or used drugs or alcohol at any other time. In his presentence interview, Palmer denied abusing alcohol or drugs.

At the SORA hearing, the court assessed Palmer a total of 80 points, including 15 points for drug or alcohol abuse, and Palmer was designated a level two sex offender. The Appellate Division affirmed and determined that the Supreme Court properly assessed Palmer 15 points for drug or alcohol abuse “based upon his admission that he was using alcohol at the time of the offense” (88 AD3d 676, 676 [2d Dept 2011]). This Court granted Palmer leave to appeal (18 NY3d 804 [2012]).

Long

Defendant Cornell Long was convicted of one count of criminal sexual act in the third degree for forcing his live-in girlfriend to have anal and oral sex. Long told the Probation Department at his presentence interview that on the night in question, he had a few beers between 11:00 p.m. and 12:30 a.m. and became depressed while thinking about his deceased brother. Long also stated that he occasionally drank alcohol and usually consumed two or three beers once a month. Long averred that he never received a substance abuse evaluation or enrolled in alcohol treatment. At the SORA hearing, Long was designated a level two sex offender.

The Appellate Division reserved decision and remitted the matter to Supreme Court, since the lower court failed to comply with Correction Law § 168-n by not setting forth findings of fact and conclusions of law (81 AD3d 1432, 1432-1433 [4th Dept 2011]). Upon remittal, Supreme Court once again failed to set forth any findings of fact. The court assessed Long a total of 80 points, including 15 points for a history of substance abuse, and designated Long a level two sex offender. The Appellate Division affirmed, recognizing that the court below failed to set forth its findings of fact and conclusions of law in an adequate manner but deciding that the record before it was sufficient to enable the appellate court to make its own findings of fact (89 AD3d 1513, 1513 [4th Dept 2011]). The Appellate Division determined that Supreme Court properly adjudicated Long a level two sex offender and that Long was properly assessed 15 points under the history of alcohol abuse risk factor because he admitted to drinking alcohol IV2 hours prior to committing the offense (89 AD3d at 1514). This Court granted Long leave to appeal (18 NY3d 809 [2012]).

IL

The SORA Guidelines were developed to “assess the risk of a repeat offense by [a] sex offender and the threat posed to the public safety” (Correction Law § 168-Z [5]). The Board of Examiners of Sex Offenders (SORA Board) created an objective assessment instrument that assigns numerical values to each risk factor, and the offender’s risk level is calculated by adding the points the offender scores in each category (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006]). Under the criminal history category of the SORA Guidelines, 15 points are assessed under risk factor 11 if the offender “has a history of drug or alcohol abuse.” Correction Law § 168-Z (5) (a) (ii) provides that “repetitive and compulsive behavior, associated with drugs or alcohol” should be taken into consideration when assessing the risk of a repeat offense. While both the statute and the Guidelines textually provide that individuals with a history of drug or alcohol abuse are to be assessed points, the commentary to the Guidelines notes that points for drug or alcohol abuse may be assessed even if the offender abused substances only “at the time of the offense.” The commentary to the SORA Guidelines describes risk factor 11 as follows:

“Alcohol and drug abuse are highly associated with sex offending. The literature indicates that use of these substances does not cause deviate behavior; rather it serves as a disinhibitor and therefore is a precursor to offending. The guidelines reflect this fact by adding 15 points if an offender has a substance abuse history or was abusing drugs and or alcohol at the time of the offense. The category focuses on the offender’s history of abuse and the circumstances at the time of the offense. It is not meant to include occasional social drinking” (Guidelines and Commentary at 15 [citations omitted]).

As indicated by the Guidelines and commentary, the drug or alcohol abuse category only applies in instances where the offender had a history of alcohol or drug abuse or where the offender consumed sufficient quantities of these substances such that the offender can be shown to have abused alcohol or drugs. Since the Board commented that “occasional social drinking” is not counted as alcohol abuse, periodic, moderate drinking of alcoholic beverages does not qualify as abuse under the SORA risk factors and does not warrant the assessment of points. In order to demonstrate that an offender was “abusing . . . alcohol at the time of the offense,” the People must show by clear and convincing evidence that the offender used alcohol in excess either at the time of the crime or repeatedly in the past (id.). The purpose of the SORA Guidelines is to identify behavior that is relevant to the risk of reoffending. A sex offender who abuses alcohol prior to committing a sex offense represents a greater risk to the community and must be more carefully monitored. Only alcohol abusers should be subject to stricter scrutiny and assessed a higher point level under the SORA Guidelines, as opposed to occasional, moderate social drinkers.

In Palmer, the hearing court should not have assessed defendant 15 points for drinking at an after work party on the day he committed his first sex offense against his victim. There was no evidence that Palmer had a history of alcohol abuse. There was also no indication in the record that Palmer abused alcohol by drinking in excess, that Palmer became intoxicated, or that alcohol affected his behavior on the day in question. It is not clear from the record what time the drinking occurred, how much Palmer had to drink, and how much time passed before he abused his victim. Palmer’s admission that he had been socially drinking before abusing his victim for the first time, is not itself proof of alcohol abuse. Clear and convincing evidence of alcohol abuse at the time of the offense might consist of proof of an excessive quantity of alcohol imbibed, proof that the offender was impaired, or proof that there was a direct link between the offender’s drinking and his sex predation. Here, there was no evidence that Palmer drank alcohol at any of the other times he offended.

The People also failed to demonstrate in Long that defendant’s 90 minutes of beer drinking constituted alcohol abuse. The People failed to prove the number of drinks Long imbibed, failed to show that his drinking was excessive, failed to demonstrate that defendant was intoxicated, and failed to provide evidence that his drinking was causally linked to the sexual assault. To prove alcohol abuse by clear and convincing evidence, the People would have had to present additional evidence as to defendant’s behavior and drinking, which in this case might have been obtained from the adult victim. The Court can only speculate regarding whether defendant abused alcohol on the night in question and whether the drinking led to his deviant behavior. While undoubtedly alcohol plays a pernicious role in various domestic violence disputes and sexual assaults, the record before us contains no clear evidence that Long abused alcohol. The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (American Psychiatric Association [2004]) (DSM-IV-TR) describes one symptom of alcohol abuse as “continued [alcohol] use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the [alcohol].” Consequently, evidence of a causal link between alcohol use and persistent social or relationship problems is a sign of alcohol abuse, which the People failed to show here.

Long’s contention that the Appellate Division improperly made its own findings of fact and conclusions of law is without merit. The Appellate Division acted within its powers when it reviewed the record and made the findings of fact required by the statute.

IIL

Accordingly, the Appellate Division order in Palmer should be reversed, without costs, and the case remitted to Supreme Court for further proceedings in accordance with the opinion. The Appellate Division order in Long should also be reversed, without costs, and the case remitted to Supreme Court for further proceedings in accordance with the opinion.

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

In People v Palmer. Order reversed, without costs, and case remitted to Supreme Court, Kings County, for further proceedings in accordance with the opinion herein.

In People v Long: Order reversed, without costs, and case remitted to Supreme Court, Erie County, for further proceedings in accordance with the opinion herein.

      . We note, however, that a one-time or occasional use of illegal drugs may raise different issues from social or occasional drinking.

      . [1] To the extent that lower courts have determined that alcohol use, as opposed to abuse, is sufficient for the assessment of points under risk factor 11, these cases should not be followed (e.g. People v Sterling, 71 AD3d 654, 654 [2d Dept 2010], lv denied 15 NY3d 703 [2010]; People v Britt, 66 AD3d 853, 854 [2d Dept 2009], lv denied 13 NY3d 716 [2010]).

      . Though the DSM-IV-TR provides some guidance on what constitutes “alcohol abuse,” the SORA Board took a more expansive view of abuse and determined that points can be assessed under risk factor 11 even where there is no recurrent conduct. In order to give meaning to the language of the SORA Guidelines and commentary, we conclude that the People do not have to present evidence of a pattern of conduct to find that an offender abused alcohol.