text:
    [947 NE2d 146, 922 NYS2d 255]
    In the Matter of State of New York, Respondent, v Andrew O., Appellant.
    Argued February 8, 2011;
    decided April 5, 2011

      APPEARANCES OF COUNSEL

      Mental Hygiene Legal Service, Albany (Shannon Stockwell and Sheila E. Shea of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure, Barbara D. Underwood and Andrea Oser of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and a new trial ordered.

On August 15, 2007, the Attorney General filed a petition in Supreme Court against Andrew O., a detained sex offender, seeking his civil management pursuant to article 10 of the Mental Hygiene Law (see Mental Hygiene Law § 10.03 [g]; § 10.06 [a]). Supreme Court subsequently found probable cause to believe that Andrew O. was a sex offender requiring civil management (see Mental Hygiene Law § 10.06 [g], [k]; § 10.03 [q]). At the ensuing jury trial, Andrew O.’s expert—his only witness—testified that Andrew O. did not suffer from a mental abnormality within the meaning of article 10 (see Mental Hygiene Law §§ 10.07, 10.03 [i]). The State’s attorney attacked the expert’s credibility on the basis of his religious beliefs and affiliation, among other things. For example, during cross-examination, he asked the expert, a psychologist, about his religion of Yoism, which the expert described as similar to Unitarianism; this religion’s basic tenets; and whether Yoism was based upon a historical text. Andrew O.’s counsel objected repeatedly and fruitlessly to this line of questioning. When he subsequently moved to strike all statements related to Yoism, the trial judge denied the motion on the ground that the expert was one of this religion’s cofounders and not merely a follower.

During his closing statement, the State’s attorney reprised the theme of the expert’s religious beliefs, telling the jurors that they would “want to know” about the expert’s religion “because that would have an impact on [their] decision whether to consider that doctor’s opinion as being valid”; and that they would “want to know if that doctor had founded a religion [and] the saints of that religion were Bob Harley, and Timothy Leary, and Bob Dylan.” He also warned the jurors that there was “a child out there” who would be affected by their decision, and asked rhetorically if they “want[ed] another victim to have to come in [in order] to find mental abnormality.” When Andrew O.’s counsel objected, the trial judge told the jurors that “[w]hat the lawyers say to you, what the lawyers say to each other, or say to me is not evidence”; and that the only evidence to be considered in rendering a verdict was the testimony received and exhibits admitted.

. The jury determined that Andrew O. was a detained sex offender who suffers from a mental abnormality (see Mental Hygiene Law § 10.07 [d]); and after a bench trial, Supreme Court concluded that Andrew O. was a dangerous sex offender requiring confinement, and so committed him to a secure treatment facility (see Mental Hygiene Law § 10.07 [f]; § 10.03 [e]). Upon Andrew O.’s appeal of the jury verdict, the Appellate Division affirmed, with one Justice dissenting. The majority considered the cross-examination of the expert about his religious beliefs to be improper, but harmless “within the context of the entire trial” (68 AD3d 1161, 1166 [3d Dept 2009]). Further, the majority did not view the inappropriate remarks made by the State’s attorney during summation sufficient, either individually or in the aggregate, to compromise Andrew O.’s right to a fair trial in light of the judge’s instruction. The dissenting Justice concluded that the religious inquiry could have substantially influenced the jury’s verdict since the expert’s credibility was critical to Andrew O.’s case.

The outcome of this appeal is controlled by our decision in People v Wood (66 NY2d 374 [1985]). In that case, the defendant met a woman at a bar, had sex with her, and then decided to kill her, apparently for no reason; after succeeding in that effort but failing to take his own life, he was arrested and pleaded insanity. His principal expert was a psychiatrist who chose to affirm rather than swear to tell the truth. The prosecutor challenged the psychiatrist’s affirmation, suggesting that his failure to “swear to God to tell the truth, nothing but the truth” meant that he was lying on the stand; and went so far as to ask the psychiatrist, “Do you believe in God, period?” (66 NY2d at 377.) Defense counsel’s multiple objections were repeatedly overruled. The trial court later provided a corrective instruction, telling the jurors that whether the psychiatrist swore or affirmed was irrelevant. The jury convicted, and the defendant appealed.

The Appellate Division affirmed over a two-Justice dissent, concluding that while the examination of the psychiatrist’s religious views was inappropriate, it was harmless. We reversed, stating that

“[w]hile we decline to hold that such questioning constitutes error per se, we hold that, except under extraordinary circumstances, it must be deemed sufficiently prejudicial to require a new trial, at least where the trial judge fails to give a prompt and clear corrective instruction” (66 NY2d at 376 [emphasis added]).

As we observed, “[w]ith limited exceptions . . . , any attempt to discredit or otherwise penalize a witness because of his religious beliefs ... is improper, because those factors are irrelevant to the issue of credibility” (id. at 378).

The State contends that there are extraordinary circumstances here principally because the evidence of Andrew O.’s mental abnormality was overwhelming. The trial, however, boiled down to a battle of the experts in which Andrew O.’s expert was portrayed as unreliable because he adhered to an out-of-the-mainstream religion. It is impossible to know whether or to what extent the jury’s assessment of the expert’s testimony was prejudiced as a result. And importantly, the trial judge did not “act as a saving grace, handling the episode promptly and forcefully” (id. at 380 [internal quotation marks omitted]); indeed, he overruled objections to the improper cross-examination. Additionally, the judge failed to sustain an objection to the State’s attorney’s admonition to the jurors that they would be at fault if Andrew O. molested another child. Rather than striking and directing the jurors to disregard this inflammatory commentary, he merely reminded them that argument is not testimony. Finally, we have considered Andrew O.’s remaining contentions alleging evidentiary error and find them to be without merit.

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

Order reversed, etc.


source: Caselaw Access Project

author: Memorandum.

license: Public Domain

text:
    [947 NE2d 153, 922 NYS2d 262]
    The People of the State of New York, Respondent, v Terence G. Jordan, Appellant.
    Argued February 15, 2011;
    decided April 5, 2011
    APPEARANCES OF COUNSEL

      Legal Aid Society, New York City (Elon D. Harpaz, Kristina Schwarz and Steven Banks of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Vincent Rivellese and Susan Axelrod of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In 2000, defendant pleaded guilty to assault in the second degree and was sentenced to three years of imprisonment. After our decision in People v Catu (4 NY3d 242 [2005]), he was resentenced by Supreme Court, which pronounced a term of postrelease supervision that had been mistakenly omitted at the time of the first sentencing. Defendant appealed from the resentencing to the Appellate Division, asking that the conviction and sentence entered on his guilty plea be vacated.

The Appellate Division correctly held that defendant could not challenge his plea on appeal from a resentencing proceeding. CPL 450.30 (3) provides that “when a resentence occurs more than thirty days after the original sentence, a defendant who has not previously filed a notice of appeal from the judgment may not appeal from the judgment, but only from the resentence.” An appeal such as this one seeking immediate relief from an underlying judgment of conviction is not one “only from the resentence.”

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

Order affirmed in a memorandum.


text:
    [947 NE2d 153, 922 NYS2d 262]
    In the Matter of Commissioner of Social Services, on Behalf of Maudlyn V.R., Respondent, v Paul C., Appellant.
    Decided April 5, 2011

      APPEARANCES OF COUNSEL

      Barry A. Elisofon, Brooklyn, for appellant.

      Michael A. Cardozo, Corporation Counsel, New York City (Julie Steiner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this child support proceeding, the courts below correctly held that the Commissioner of Social Services was not required to prove that the award of public assistance to the mother was justified. The father suggested that he could bear the burden of proving that the mother had undisclosed resources available for support of the child, but failed to make an adequate offer of proof on this issue.

Chief Judge Lippman and Judges Cipaeick, Geapfeo, Read, Smith, Pigott and Jones concur in memorandum.

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


text:
    In the Matter of Board of Commissioners of Great Neck Park District of Town of North Hempstead, Respondent, v Kings Point Heights, LLC, Appellant.
    Submitted February 7, 2011;
    decided April 5, 2011
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Otto Harnischfeger et al., Respondents, v David Moore, Chief of Police of Rochester Police Department, et al., Appellants.
    Submitted February 7, 2011;
    decided April 5, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Leslie Kahn, Appellant, v New York City Department of Education et al., Respondents.
    Submitted February 22, 2011;
    decided April 5, 2011
   Motion by the New York State United Teachers for leave to file an affirmation amicus curiae on the motion for leave to appeal herein granted and the affirmation is accepted as filed, and for leave to file a brief amicus curiae on the appeal herein granted, three copies of the brief to be served and an original and 19 copies filed within 30 days.


text:
    Leslie Kahn, Appellant, v New York City Department of Education et al., Respondents.
    Submitted February 22, 2011;
    decided April 5, 2011
   Motion by the Council of School Supervisors and Administrators for leave to file an affirmation amicus curiae on the motion for leave to appeal herein granted and the affirmation is accepted as filed, and for leave to file a brief amicus curiae on the appeal herein granted, three copies of the brief to be served and an original and 19 copies filed within 30 days.


text:
    Janulyn McKanic, Appellant, v Amigos del Museo del Barrio, Respondent.
    Decided April 5, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    James L. Melcher, Appellant, v Apollo Medical Fund Management L.L.C. et al., Respondents.
    Submitted February 14, 2011;
    decided April 5, 2011
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Danny Montes, Appellant, v Norman Bezio, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted January 31, 2011;
    decided April 5, 2011
   Motion for leave to appeal granted. Motion for poor person relief granted.


text:
    In the Matter of Orange County Department of Social Services, on Behalf of Doris Zieran, Respondent, v Mark Marvin, Appellant.
    Decided April 5, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of David Rikard, Appellant, v Sheila Matson, Respondent. (And Four Other Related Proceedings.)
    Submitted February 14, 2011;
    decided April 5, 2011
   Motion to vacate stay granted.


text:
    In the Matter of the Claim of Rocio Zamora, Respondent, v New York Neurologic Associates et al., Appellants. Workers’ Compensation Board, Appellant.
    Submitted February 28, 2011;
    decided April 5, 2011
   Motion to dismiss appeal by New York Neurologic Associates et al. denied.


text:
    In the Matter of Rocio Zamora, Respondent, v New York Neurologic Associates et al., Appellants. Workers’ Compensation Board, Appellant.
    Submitted February 14, 2011;
    decided April 5, 2011
   Motion to dismiss appeal by Workers’ Compensation Board denied.


text:
    [947 NE2d 157, 922 NYS2d 266]
    Trudi L. Bronson, Appellant, v Allen J. Hansel, Respondent.
    Decided April 28, 2011

      APPEARANCES OF COUNSEL

      Cellino & Barnes, P.C., Buffalo (Gregory V. Pajak and Ellen B. Sturm of counsel), for appellant.

      Brown & Kelly, LLP, Buffalo (Patricia S. Ciccarelli of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

In support of his motion for summary judgment, defendant proffered a prima facie case that the action should be barred on the ground of release. In opposition, plaintiff failed to raise a triable issue of fact that the release should be set aside on the ground of mutual mistake (see Mangini v McClurg, 24 NY2d 556, 563-566 [1969]) or because the settlement was not “fairly and knowingly made” (Farrington v Harlem Sav. Bank, 280 NY 1, 4 [1939]).

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

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


text:
    In the Matter of Felipe Concepcion, Appellant, v Robert T. Johnson, Respondent.
    Decided April 28, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of. the Constitution.


text:
    Farrah Donald, Appellant, v State of New York, Respondent.
    Submitted April 18, 2011;
    decided April 28, 2011
   Motion by Sidney Burch et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    Gloria Doomes, Appellant, v Best Transit Corp. et al., Defendants, and Warrick Industries, Inc., Doing Business as Goshen Coach, Respondent. Ana Jiminian, Appellant, v Best Transit Corp. et al., Defendants, and Warrick Industries, Inc., Doing Business as Goshen Coach, Respondent. Kelli Rivera, Appellant, v Best Transit Corp. et al., Defendants, and Warrick Industries, Inc., Doing Business as Goshen Coach, Respondent.
    Submitted April 18, 2011;
    decided April 28, 2011
   Motion by United Motorcoach Association, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Bryn Kelsey, Respondent, v Aileen McNally, Appellant.
    Submitted February 22, 2011;
    decided April 28, 2011
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division entered in this action commenced in a Justice Court (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    In the Matter of Leon R. Koziol, a Suspended Attorney, Appellant. Grievance Committee of the Fifth Judicial District, Respondent.
    Submitted January 31, 2011;
    decided April 28, 2011
   Motion, insofar as it seeks leave to appeal from the February 2010 order of the Appellate Division, Fourth Department, dismissed as untimely (see CPLR 5513 [b]); motion, insofar as it seeks leave to appeal from the September 2010 order of the Appellate Division, Third Department, denied. Motion for a stay dismissed as academic.

Chief Judge Lippman taking no part.


text:
    In the Matter of Jean Occhiogrosso et al., Appellants, v New York State Office of Children and Family Services et al., Respondents.
    Submitted March 7, 2011;
    decided April 28, 2011
   Motion for reargument of motion for leave to appeal denied [see 16 NY3d 703 (2011)].


text:
    The People of the State of New York, Respondent, v Luis Alvarez, Appellant.
    Submitted March 28, 2011;
    decided April 28, 2011
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Michael Mungro, Appellant.
    Submitted April 11, 2011;
    decided April 28, 2011
   Motion for assignment of counsel granted and Charles J. Greenberg, Esq., PO Box 102, Buffalo, New York 14207-0102 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Debra Pagan, Appellant.
    Submitted April 4, 2011;
    decided April 28, 2011
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Frederick E. Walker, Appellant.
    Submitted April 18, 2011;
    decided April 28, 2011
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed as academic upon the ground that a Justice of the Appellate Division granted defendant leave to appeal by order dated April 14, 2011.


text:
    Joseph Perl et al., Appellants, v Mehmood Meher et al., Respondents.
    Submitted April 11, 2011;
    decided April 28, 2011
   Motion by New Yorkers for Fair Automobile Insurance Reform for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Joseph Perl et al., Appellants, v Mehmood Meher et al., Respondents.
    Submitted April 11, 2011;
    decided April 28, 2011
   Motion by New York State Trial Lawyers Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Yenem Corp., Appellant, v 281 Broadway Holdings et al., Respondents. (And Other Actions.) Randall Co., LLC, Appellant, v 281 Broadway Holdings et al., Respondents, et al., Defendants. 281 Broadway Holdings LLC et al., Third-Party Plaintiffs-Respondents, v Hunter-Atlantic, Inc., Third-Party Defendant-Respondent, et al., Third-Party Defendants.
    Submitted April 25, 2011;
    decided April 28, 2011
   Motion by City of New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    [948 NE2d 920, 924 NYS2d 314]
    The People of the State of New York, Respondent, v Terrell Gilford, Appellant.
    Argued March 23, 2011;
    decided May 3, 2011

      APPEARANCES OF COUNSEL

      Office of the Appellate Defender, New York City (Rosemary Herbert and Richard M. Greenberg of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx (Justin J. Braun, Andrew S. Holland, Joseph N. Ferdenzi and Nancy D. Killian of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

At 2:00 a.m. on Monday, March 8, 2004, a fight erupted on the dance floor at “Skate Key,” a now-defunct indoor roller skating rink in the Bronx. By the time the combatants were spent or separated, James Earl Jones had suffered what turned out to be a mortal stab wound in the chest, and Kyle Williams had suffered potentially life-threatening stab wounds in the stomach and back. A female witness who was standing within inches of Jones when he was stabbed helped him outside where he collapsed in the street. She immediately and spontaneously identified defendant Terrell Gilford as Jones’s attacker to a police sergeant assigned to the area outside Skate Key, who asked if anyone knew who stabbed the victim. Defendant fled on foot, with the sergeant and witness in pursuit.

Two uniformed police officers, who were notified at 2:15 a.m. of an assault in progress, joined in the chase in their patrol car and finally caught up with defendant a few blocks away from Skate Key. They handcuffed defendant with his hands behind his back and placed him in the back seat of their cruiser. The sergeant instructed these two officers to transport defendant to the nearby hospital where Jones had been taken by ambulance, and to conduct a showup. At the time, the sergeant suspected that Jones was “probably going to lose his life.”

When the two officers reached the hospital, one of them stayed with defendant in the car, which was parked in the emergency room parking lot. The other officer went into the hospital where he learned Jones’s name, and discovered that he was “unconscious” and “being worked on,” rendering a showup impossible. On his way out of the emergency room, though, he ran into the witness and a male companion, who were walking quickly in his direction. In light of their distraught and rushed appearance (the witness appeared to have been crying), the officer, acting on a hunch, asked them why they were there. When the witness responded that “her friend” James Jones had been stabbed, the officer asked the two of them “if they knew anything about what had happened at the Skate Key and they said that they did.” He then “asked them if they would be able [to] in any way . . . identify any suspects involved in the case and they also said they would.” The officer did not know that the witness had already identified defendant to the sergeant as Jones’s attacker.

The officer radioed for a patrol car. He explained to the witness and her companion that he would place them in this car to “view someone” or to “show [them] someone who might have been involved in the incident.” Once this patrol car arrived, the witness and her companion climbed inside, and the officer told them that he was going to “put a bright light on the individual [whom he] would show them and that at any time if they identified that person they should let [him] know.” The officer next called on the operator of the newly-arrived patrol car to turn on the “take-down” lights on top of the vehicle. At the officer’s signal, his fellow officer then guided defendant, who remained rear-handcuffed, to the lighted area and stood next to him. When the officer asked the witness and her companion if they could identify defendant, the witness said, “[T]hat’s him,” and her companion agreed. The witness related to the officer that “the person [whom he] had shown them was responsible for injuring Mr. James Jones, specifically stabbing him”; the stabbing took place inside Skate Key; “there was a confrontation amongst people”; and defendant “had a knife and . . . had stabbed [Jones].” Her companion added “that there was a fight and ... he also observed [defendant] to have a knife in his possession.” This showup took place at about 2:45 a.m., no more than 45 minutes after the crime.

On April 1, 2004, the grand jury indicted defendant for a litany of crimes in connection with the fight at Skate Key. Defendant moved to suppress the showup identifications. Defense counsel argued that there were no exigent circumstances with respect to the witness or her companion; that the officer improperly conducted a joint or simultaneous showup with the witness—who had already identified defendant just minutes before—and her companion; that the officer told them that defendant was a “suspect”; that defendant was “spotlighted” by “take-down” lights; and that defendant was removed from a police car, wearing handcuffs, and flanked by police officers in plain view of the witness and her companion. Defense counsel further maintained that the showup was impermissibly duplicative because the police officers had to have known that a showup was unnecessary to establish probable cause since defendant was already under arrest.

The judge denied defendant’s motion, citing People v Duuvon (77 NY2d 541 [1991]). He found that the “chain of events” in this case was “unbroken,” related in temporal and geographic proximity and, in addition, driven by the exigency of the victim’s critical condition; and that “the show-up took place within a short period of time after the commission of the crime and in close proximity to the scene of the crime.” Further, he concluded, the showup was conducted to “preserv[e] . . . the witnesses’ ‘fresh memories’ of the event,” and “[t]he fact that [defendant] was identified in front of a police car while in handcuffs [did] not render the show-up unduly suggestive.”

Defendant subsequently waived his right to a jury and was tried in a bench trial before the same judge who presided over the suppression hearing. At the trial, the witness made an in-court identification of defendant as Jones’s attacker; Williams testified that defendant had stabbed him in the stomach. The judge acquitted defendant of the most serious of the charges facing him for Jones’s death—second-degree murder—but convicted him of first-degree manslaughter. The judge also acquitted defendant of the most serious of the charges with respect to Williams—attempted murder in the second degree—but convicted him of first-degree assault.

On appeal, the Appellate Division upheld defendant’s first-degree manslaughter conviction. Exercising its interest-of-justice jurisdiction, the court reviewed defendant’s unpreserved challenge to the first-degree assault conviction and reduced it to first-degree attempted assault (65 AD3d 840, 841 [1st Dept 2009]). Finally, the court found “no basis for suppression of the showup or in-court identifications, because the showup was within permissibly close temporal and geographic proximity to the crime, took place shortly after the witness had already made a reliable identification, and was conducted in a manner that was not unduly suggestive” (id. at 841-842 [citations omitted]).

The due-process inquiry for showups calls upon the suppression court to decide whether the showup was reasonable under the circumstances—i.e., justified by exigency or temporal and spatial proximity—and, if so, whether the showup as conducted was unduly suggestive (People v Ortiz, 90 NY2d 533, 537 [1997]). Whether a showup is reasonable under the circumstances and/or unduly suggestive are mixed questions of law and fact. As a result, the determination of the hearing court in this case, undisturbed by the Appellate Division and supported by evidence in the record, is beyond our further review.

Finally, defendant’s claim that the evidence was insufficient to show his intent to cause serious physical injury to Williams is unpreserved.

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

Order affirmed in a memorandum.


text:
    [948 NE2d 1290, 925 NYS2d 6]
    The People of the State of New York, Respondent, v Pedro Melendez, Appellant.
    Argued March 22, 2011;
    decided May 3, 2011
    APPEARANCES OF COUNSEL

      Office of the Appellate Defender, New York City (Lisa A. Packard and Richard M. Greenberg of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx (Rafael Curbelo, Jennifer Marinaccio and Joseph N. Ferdenzi of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s claim that the trial court erred in not unequivocally conveying to the jury that the People were required to disprove defendant’s alibi defense beyond a reasonable doubt (see People v Victor, 62 NY2d 374 [1984]) is unpreserved.

During the charge conference, defense counsel asked the court to deliver an alibi charge, arguing that the People must disprove alibi beyond a reasonable doubt. The court agreed to give the charge, noting that the pattern Criminal Jury Instruction had been amended to provide that the People could meet that burden by proving beyond a reasonable doubt that defendant committed the crime. The following day, the court showed the parties its proposed alibi charge, and again pointed out that the charge had recently been modified. Defense counsel neither objected to the court’s proposed charge nor voiced an objection to the charge after it was given to the jury, thereby failing to alert the trial court to his current claim that the amended charge did not adequately instruct the jury that the People bear the burden of disproving a defendant’s alibi defense (see People v Whalen, 59 NY2d 273, 279-280 [1983]).

Likewise unpreserved are defendant’s contentions that the alibi charge and certain of the prosecutor’s comments during summation shifted the burden of proof to defendant (see CPL 470.05 [2]).

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

Order affirmed in a memorandum.


text:
    Maninder Bhugra, Appellant, v Massachusetts Casualty Insurance Company et al., Defendants, and Disability Management Services, Respondent.
    Decided May 3, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Michelle C. Hissam, Appellant, v Matthew P. Mancini, Respondent. (And Another Related Proceeding.)
    Submitted March 7, 2011;
    decided May 3, 2011
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed that part of Family Court’s order that dismissed appellant’s contempt application, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Pigott taking no part.


text:
    Donna Prince Lynch, Individually and as Parent and Natural Guardian of Philip Lawrence Lynch, and as Administratrix of the Estate of Timothy John Lynch, Deceased, et al., Respondent, v Mike Waters, as Fire Coordinator of County of Onondaga, et al., Respondents. Mike Waters, as Fire Coordinator of County of Onondaga, et al., Third-Party Plaintiffs-Respondents, v The Pompey Hill Fire District et al., Third-Party Defendants-Respondents, and The Village of Manlius et al., Third-Party Defendants-Appellants.
    Submitted February 22, 2011;
    decided May 3, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Fahim Majawalla, as Executor of Yusuf K. Majawalla, Deceased, et al., Respondents, v Utica First Insurance Company, Appellant.
    Submitted March 14, 2011;
    decided May 3, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of Khawar Maqsood, Appellant, v McRoberts Protective Agency et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted March 21, 2011;
    decided May 3, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Scott Martzloff et al., Individually and as Parents and Natural Guardians of Victoria Martzloff, an Infant, Appellants, v Rush-Henrietta Central School District, Respondent.
    Submitted March 28, 2011;
    decided May 3, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    NY SMS Waterproofing, Inc., Respondent, v Congregation Machne Chaim, Inc., Appellant.
    Submitted March 21, 2011;
    decided May 3, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of Gerard O’Connor, Appellant, v New York City Board of Education, Respondent. Workers’ Compensation Board, Respondent.
    Submitted March 7, 2011;
    decided May 3, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Scott Liden, Appellant.
    Submitted March 7, 2011;
    decided May 3, 2011
   Motion for leave to appeal granted. Motion for poor person relief granted.


text:
    The People of the State of New York ex rel. Bernard DeVeaux, Appellant, v Donald Sawyer, as Executive Director of Central New York Psychiatric Center, et al., Respondents.
    Submitted February 28, 2011;
    decided May 3, 2011
   Motion for leave to appeal dismissed upon the ground that it does not lie from the order of the individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    In the Matter of the Claim of Robin L. Ross, Appellant. Starwood Hotels & Resorts Worldwide, Inc., Respondent; Commissioner of Labor, Respondent.
    Submitted February 28, 2011;
    decided May 3, 2011
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellant’s motion for reconsideration, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of the Estate of Kevin W. Stanley, Deceased. Diane R. Stanley, as Executrix of Kevin W. Stanley, Deceased, Appellant; Lawrence J. Mattar, Esq., as Guardian ad Litem for Ashley Stanley, a Minor, et al., Respondents. In the Matter of the Estate of Kathleen A. Stanley, Deceased. Richard T. Stanley, as Administrator of the Estate of Kathleen A. Stanley, Deceased, Appellant; Lawrence J. Mattar, Esq., as Guardian ad Litem for Ashley Stanley, a Minor, et al., Respondents.
    Submitted February 14, 2011;
    decided May 3, 2011
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceedings within the meaning of the Constitution.


text:
    Union Carbide Corporation, Appellant, v Affiliated FM Insurance Company et al., Defendants, and Continental Casualty Company et al., Respondents.
    Submitted April 4, 2011;
    decided May 3, 2011
   Motion for reargument denied [see 16 NY3d 419 (2011)].


author: Memorandum. Ciparick, J. (dissenting).

text:
    [949 NE2d 479, 925 NYS2d 388]
    In the Matter of Eddy Marte et al., Appellants, v Carol Berkman, Justice of the Supreme Court, State of New York, et al., Respondents.
    Argued March 22, 2011;
    decided May 5, 2011

      APPEARANCES OF COUNSEL

      David Segal, New York City, for Eddy Marte, appellant.

      Robert Blossner, New York City, for Luis Marte, appellant.

      Eric T. Schneiderman, Attorney General, New York City (Michael J. Siudzinski of counsel), for Carol Berkman, respondent.

      Cyrus R. Vance, Jr., District Attorney, New York City (Martin J. Foncello and Alice Wiseman of counsel), for New York County District Attorney, respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, without costs, and the certified question not answered upon the ground that it is unnecessary.

“While express consent to a mistrial is preferable, defendant’s consent may in some cases be implied from the circumstances leading up to the dismissal of the jury” and the question of whether the defense consented to a mistrial involves a factual determination by the lower courts that may not be disturbed by this Court if there is any support for that finding in the record (People v Ferguson, 67 NY2d 383, 388-389 [1986]). In this case, there is record support for the Appellate Division conclusion that defendants impliedly consented to the mistrial. The jury submitted a note stating that a verdict had been reached on two counts and that it was at an impasse on others. At the O’Rama conference conducted to determine how the court should respond to this note, the trial judge indicated that he intended to take a partial verdict and declare a mistrial on the undecided charges. When he then asked defense counsel if they wanted to be heard, counsel for Eddy Marte responded “no” and counsel for the codefendant remained silent. After the court took the partial verdict but before it discharged the jury, the judge again inquired of defense counsel if there was anything they wanted to put on the record. Neither attorney responded. Thus, there was ample basis on the record for the trial court to conclude that defendants agreed that a mistrial on the undecided charges was the appropriate course of action.

Contrary to the conclusion reached by the dissent, nothing that occurred at the conference could have led counsel to reasonably believe that the court was deferring a decision concerning the proper response to the note. When the prosecutor agreed that a mistrial was warranted and the defense voiced no disagreement—despite being asked their views—there was no reason for the court to deviate from its initial inclination.

Defendants’ contention that there could not have been implied consent as a matter of law because they objected to the mistrial after the jury was discharged lacks merit. The purpose of an O’Rama conference is for the attorneys to advise the court concerning the appropriate response to a jury note in order to assist the court in averting error. The dissent overlooks this principle. Under its analysis, defense attorneys would have no obligation to meaningfully participate in O’Rama conferences but could simply say nothing when a trial judge articulates a proposed response, leaving the false impression of acquiescence even while anticipating a subsequent objection. If this were permissible, attorneys could—by their silence—lull the court into taking actions that could not later be undone.

Our O ’Rama jurisprudence compels rejection of this approach. If defendants believed, as they now assert, that the court should have taken the partial verdict followed by an Allen charge directing the jury to continue deliberations, the time to offer that suggestion was at the O’Rama conference. Similarly, if defense counsel were unprepared to consent or object to a mistrial during the conference because they did not yet know what the verdict would be, this too should have been conveyed to the court at the conference. This would have put the court on notice that the defense did not agree that the tenor and length of deliberations, coupled with the jury’s declaration concerning its inability to reach agreement, warranted a mistrial (had such notice been given, the court might have altered course in a number of ways, including revisiting its decision to accept the partial verdict). Certainly, once the verdict was announced and defense counsel nonetheless remained mute when asked their views, the inference that defense counsel concurred with the court’s decision to grant a mistrial was even more apparent. Moreover, in a case like this where the court informed defense counsel in advance how it planned to respond to the jury note, it is particularly appropriate for a reviewing court to focus on “the circumstances leading up to the dismissal of the jury” (Ferguson at 388), not statements defense counsel made after the jury had been discharged.

Because we find no basis to disturb the Appellate Division’s factual finding of implied consent, we have no occasion to address the People’s alternative argument that there was manifest necessity for the mistrial. In that regard, however, we note that there is a relationship between the deficiencies in the record highlighted by the dissent and defense counsels’ response when the court expressed its intent to declare a mistrial. Had either attorney addressed a concern relating to that decision at that time, an inquiry concerning the nature of the jury’s impasse and the likelihood of ever reaching a verdict on the undecided counts would undoubtedly have ensued—creating a record that would facilitate appellate review.

Ciparick, J. (dissenting).

Although a defendant’s consent to a mistrial “may in some cases be implied from the circumstances” (People v Ferguson, 67 NY2d 383, 388 [1986]), this is not such a case.

Summarizing the record, the majority states that “the trial judge indicated that he intended to . . . declare a mistrial” (majority mem at 875). In fact, the court only announced its “inclination” to declare a mistrial during an O’Rama conference addressing a jury note which stated that the jury had reached a verdict on two of the charges, but was otherwise at an “impasse.” At that point, the court had not inquired whether the jury might still be able to reach a verdict on the remaining counts in a reasonable period of time (see CPL 310.70 [1] [a]; 310.60 [1] [a]; Matter of Rivera v Firetog, 11 NY3d 501, 506 [2008]), and there is no consideration of this question on the record. Thus, when the court stated its inclination, defense counsel may have reasonably inferred that the court was deferring any decision pending further interaction with the jury. Further, counsel may have been waiting to view that interaction before deciding whether to consent.

When the jury was brought in, it returned a partial verdict acquitting both defendants of two of the three counts in the indictment, attempt to commit robbery in the first degree and attempt to commit robbery in the second degree. The foreperson confirmed that the jury “had not reached a decision” on the third count in the indictment or the three lesser included counts. After taking the partial verdict and hearing that the jury was otherwise “undecided,” the court asked counsel if they had “anything for the record.” They did not. It was not obvious, however, that the court’s next step would be to declare a mistrial without further inquiry. That only became evident when the court proceeded to briefly thank the jurors and discharge them. The court never gave defense counsel an opportunity to respond to its decision to declare a mistrial, and defendants, petitioners here, cannot be said to have implicitly consented.

The majority’s reliance on Ferguson (67 NY2d 383 [1986]) is misplaced. In that case, the judge informed the attorneys that a juror was hospitalized, there were no alternates, and she was considering a mistrial—a decision based entirely on the juror’s absence, and so plainly not contingent on anything further happening in the courtroom. When proceedings recommenced, the court unequivocally stated that it was going to declare a mistrial, and defense counsel failed to object (id. at 387). In that context, we held that the defendant’s consent could be implied. We have never suggested, however, that a defendant can implicitly consent to the declaration of a mistrial before the court definitively determines its course. Although defense counsel here must have realized at some point while the court was thanking and dismissing the jury that there would be no verdict on the third count, that is not the type of silence in the face of a clear opportunity for consent that may substitute for explicit consent (cf. Ferguson, 67 NY2d at 388-389). In any event, the court thanked and dismissed the jury in a few short sentences, after which defense counsel promptly approached the bench and requested that the jury be held. In effect, this constituted a timely objection.

In the absence of defendants’ consent, we must consider whether the constitutional bar to placing a defendant twice in jeopardy for the same offense prevents petitioners from being retried (see NY Const, art I, § 6; US Const 5th Amend; Matter of Davis v Brown, 87 NY2d 626, 629-630 [1996]). A defendant may be reprosecuted only if the trial court properly took “all the circumstances into consideration” and found “manifest necessity” for a declaration of mistrial (Matter of Rivera, 11 NY3d at 506, quoting United States v Perez, 9 Wheat [22 US] 579, 580 [1824]). The “classic example” of manifest necessity is “a genuinely deadlocked jury” (id.).

“To justify a mistrial on deadlock grounds, it must be ‘clear that the jury is hopelessly deadlocked and that there is no reasonable probability it can agree’ ” (id., quoting People v Baptiste, 72 NY2d 356, 360 [1988]; see also CPL 310.70 [1] [a]; 310.60 [1] [a] [A court may declare a mistrial “only when . . . (t)he jury has deliberated for an extensive period of time . . . and the court is satisfied that . . . agreement is unlikely within a reasonable time”]). We afford great deference to a trial court’s determination that a mistrial is necessary (see Matter of Rivera, 11 NY3d at 507; Baptiste, 72 NY2d at 360), and have “repeatedly stressed that no per se rules or mechanical formulas apply to mistrial determinations” (Matter of Rivera, 11 NY3d at 509). The trial court should consider “ ‘the length and complexity of the trial, the length of the deliberations, the extent and nature of the communications between the court and the jury, and the potential effects of requiring further deliberation’ ” (id. at 507, quoting Matter of Plummer v Rothwax, 63 NY2d 243, 251 [1984]), as well as “appropriate alternatives” (id., quoting Hall v Potoker, 49 NY2d 501, 505 [1980]).

Our case law illustrates various ways in which these factors can combine to produce satisfactory assurance that a mistrial is necessary. In Matter of Plummer, for example, we upheld a mistrial declaration that followed only 41/2 hours of deliberation (63 NY2d at 251). That case, however, was “simple,” the trial lasted just over an afternoon, and “the Judge questioned the jury through its foreperson who insisted that further deliberations would be fruitless” (id. at 252). Alternately, in Matter of Rivera, although the judge never questioned the jury, the deliberations lasted almost six days—longer than the trial—during which the jury sent out three deadlock notes (11 NY3d at 508).

Here, the jury deliberated for only two days following an eight-day trial, with an alternate juror being seated at approximately 12:30 p.m. on the second day of deliberations. Before the alternate was seated, the jury sent out several notes requesting a variety of records, witness testimony, and legal instruction. Just before noon on the second day of deliberations, a Friday, the jury sent out a note saying it had reached a verdict on one count and was “close to a decision” on another, but was “evenly split on the remaining counts and . . . at an impasse.” The court responded by giving a modified Allen charge. Shortly thereafter, the jury requested “guidance” on the lesser included charges and the court provided some. The alternate juror was then seated, and the court instructed the jury to “begin deliberations anew in regard to” the new juror. Late that afternoon, after three more notes requesting clarification and testimony, the jury sent out a note saying it had reached a verdict on two of the charges, but was “at an impasse” on the remaining charges. It was in response to this note that the court, without further inquiry or instruction, took a partial verdict and declared a mistrial on the remaining counts.

This record does not support a finding that there was “no reasonable probability” that the jurors would reach an agreement. Although the jury said it was at an impasse and the foreperson announced while giving the partial verdict that it was “undecided” on the remaining counts, the court never inquired whether further deliberation might be productive. Given the brevity of the deliberations, relative to the length and complexity of the trial, some further inquiry was required, particularly since the jury had been actively requesting evidence and legal instruction as late as 3:00 p.m. that afternoon.

That two of the jurors wanted to conclude deliberations that Friday due to personal engagements the following week did not compel a mistrial. Although courts must be wary of extending deliberations to the point of exerting coercive pressure on jurors (see Arizona v Washington, 434 US 497, 509-510 [1978]; Matter of Plummer, 63 NY2d at 250), the court here had noncoercive alternatives: it could have held the jury later on Friday; it could have investigated the duration of the jurors’ personal commitments the following week and adjourned the proceedings accordingly; or it could even have continued with 11 jurors with defense consent.

Because Supreme Court never adequately determined that the jury was hopelessly deadlocked and there was no reasonable probability it would reach a verdict, and because it appears that further deliberation was possible without fear of coercing a verdict, there was no manifest necessity for the court to declare a mistrial. Since petitioners never consented to the mistrial, in my view, defendants cannot be retried. Accordingly, I would reverse the judgment of the Appellate Division and grant the petition.

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

Judgment affirmed, etc.

       The dissent speculates that counsel may have intended to listen to the interaction between the court and the jury during the ensuing proceedings before deciding whether to consent to the mistrial. While this is certainly possible—and it would have been a reasonable strategy—it is not supported by anything in the record. Moreover, if this was the case, counsels’ failure to speak up and articulate this intention at the O’Rama conference is both inexplicable and inexcusable.

       The majority suggests that if defense counsel had requested that the court create a record demonstrating manifest necessity, it might have done so (majority mem at 877). The question, however, is whether the trial court abused its discretion by declaring a mistrial based on the record before it (see Matter of Rivera, 11 NY3d at 507).


text:
    [947 NE2d 1188, 923 NYS2d 409]
    The People of the State of New York, Respondent, v Rolando Herrera, Appellant.
    Decided May 5, 2011

      APPEARANCES OF COUNSEL

      Bronx Defenders, Bronx (Matthew Caldwell and Robin S. Steinberg of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx (Stanley R. Kaplan of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed (see People v Fernandez, 16 NY3d 596 [2011] [decided today]).

Concur: Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith and Pigott. Judge Jones dissents for reasons stated in his dissenting opinion in People v Fernandez (16 NY3d 596, 603 [2011] [decided today]).


text:
    Isidro Abascal, Appellant, v City of New York, Respondent.
    Submitted March 28, 2011;
    decided May 5, 2011
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    ABN AMRO Bank, N.V., et al., Appellants, et al., Plaintiffs, v MBIA Inc. et al., Respondents.
    Submitted May 2, 2011;
    decided May 5, 2011
   Motion by New York Civil Liberties Union et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    ABN AMRO Bank, N.V., et al., Appellants, et al., Plaintiffs, v MBIA Inc. et al., Respondents.
    Submitted May 2, 2011;
    decided May 5, 2011
   Motion by Patrick J. Borchers et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    ABN AMRO Bank, N.V., et al., Appellants, et al., Plaintiffs, v MBIA Inc. et al., Respondents.
    Submitted May 2, 2011;
    decided May 5, 2011
   Motion by Aurelius Capital Master Ltd. et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Ramon Alvarez, Appellant, v New York State Division of Parole et al., Respondents.
    Submitted April 11, 2011;
    decided May 5, 2011
   Motion for reargument of motion for leave to appeal denied [see 14 NY3d 708 (2010)]. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Michael Chenkin, Appellant, v New York City Council, Respondent.
    Submitted March 28, 2011;
    decided May 5, 2011
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 16 NY3d 703 (2011)].


text:
    Christopher Coleman, Appellant, v Putnam Hospital Center et al., Respondents, et al., Defendant.
    Submitted February 22, 2011;
    decided May 5, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Christopher Culver, Respondent, v Kristi VanPatten Culver, Appellant.
    Submitted April 4, 2011;
    decided May 5, 2011
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]). Motion for a stay dismissed as academic.


text:
    Farrah Donald, Appellant, v State of New York, Respondent.
    Submitted May 2, 2011;
    decided May 5, 2011
   Motion by Legal Aid Society, Criminal Appeals Bureau and Parole Revocation Defense Unit, for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    Eurovision 426 Development, LLC, Respondent, v 26-01 Astoria Development, LLC, Appellant, et al., Defendant.
    Submitted March 14, 2011;
    decided May 5, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Robert H. Hamilton et al., Respondents, v David Murphy, Appellant.
    Submitted April 4, 2011;
    decided May 5, 2011
   Motion for reargument of motion for leave to appeal denied [see 16 NY3d 794 (2011)].


text:
    In the Matter of Tommy R. Jackson, Appellant, v State of New York, Respondent.
    Submitted March 28, 2011;
    decided May 5, 2011
   Motion for leave to appeal dismissed upon the ground that this motion does not properly lie to the Court of Appeals directly from the judgment of Supreme Court (see CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Aaron Richard Fisher, Appellant.
    Submitted May 2, 2011;
    decided May 5, 2011
   Motion for assignment of counsel granted and Timothy P Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v David Lance Paulin, Appellant. The People of the State of New York, Respondent, v Jesus Pratts, Appellant.
    Submitted May 2, 2011;
    decided May 5, 2011
   Motion by New York City Bar Association for leave to appear amicus curiae on the appeals herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Donna Ponholzer et al., Respondents, v Edward D. Simmons, M.D., et al., Appellants.
    Submitted March 7, 2011;
    decided May 5, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Jennifer Sniffen, Respondent, v Arthur Weygant, Appellant. (And Two Other Related Proceedings.)
    Submitted March 28, 2011;
    decided May 5, 2011
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    [948 NE2d 923, 924 NYS2d 317]
    Joyce Henderson, Respondent, v Manhattan and Bronx Surface Transit Operating Authority et al., Appellants, et al., Defendants.
    Decided May 10, 2011

      APPEARANCES OF COUNSEL

      Office of Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for appellants.

      Lipsig Shapey Manus & Moverman, P.C., New York City (Jillian Rosen of counsel), and Pollack, Pollack, Isaac & DeCicco, LLP, New York City (Brian J. Isaac of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and the certified question answered in the affirmative. Appellants failed to comply with the conditional order. Therefore, the courts below did not err in striking appellants’ answer.

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


text:
    John L. Bell, Individually and as Shareholder of Norpco Restaurant, Inc. and Butcher Block of Albany, Inc., Appellant, v David R. White et al., Respondents.
    Submitted February 28, 2011;
    decided May 10, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Christina M. DeLorenzo, Respondent, v Peter A. DeLorenzo, Appellant.
    Submitted March 21, 2011;
    decided May 10, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Pigott taking no part.


text:
    In the Matter of Derrick C. and Others, Infants. Jefferson County Department of Social Services, Respondent; Steven C., Appellant.
    Submitted April 4, 2011;
    decided May 10, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Habitat, Ltd., Appellant, v Art of the Muse, Inc., Doing Business as Oly Studio, et al., Respondents.
    Submitted April 4, 2011;
    decided May 10, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Regan Horike, Respondent, v Mark Freedman, Appellant. (And Another Related Proceeding.)
    Submitted March 28, 2011;
    decided May 10, 2011
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the Family Court order denying appellant’s application, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of John Jay College of Criminal Justice of the City University of New York. River Center LLC et al., Appellants, v Dormitory Authority of the State of New York, Respondent.
    Submitted January 31, 2011;
    decided May 10, 2011
   Motions, insofar as they seek leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s order denying River Center LLC’s motion to reopen, dismissed upon the ground that such portion of the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution; motions for leave to appeal otherwise denied.


text:
    In the Matter of John Jay College of Criminal Justice of the City University of New York. River Center LLC et al., Appellants, v Dormitory Authority of the State of New York, Respondent.
    Submitted February 7, 2011;
    decided May 10, 2011
   Motion by the Real Estate Board of the State of New York, Inc. for leave to file a brief amicus curiae in support of the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Resat Keles, Appellant, v The Trustees of Columbia University in the City of New York et al., Respondents.
    Submitted March 28, 2011;
    decided May 10, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Cary Kittner, Individually and as Assignee of Stuart Quimby, et al., Appellants, v Eastern Mutual Insurance Company, Respondent.
    Submitted February 28, 2011;
    decided May 10, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Americo Pellechia, Appellant, v Partner Aviation Enterprises, Inc., Doing Business as Empire Airways, Respondent.
    Submitted March 21, 2011;
    decided May 10, 2011
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    The People of the State of New York ex rel. Glenn E. Van Norstrand, Appellant, v Harold D. Graham, Superintendent, Auburn Correctional Facility, Respondent.
    Submitted March 21, 2011;
    decided May 10, 2011
   Motion, insofar as it seeks leave to appeal from the Appellate Division order dismissing the appeal from the order of Supreme Court that denied appellant’s motion for a stay and reconsideration, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Pigott taking no part.


text:
    Progressive Northeastern Insurance Company, Plaintiff, v State Farm Insurance Companies et al., Defendants, Gabe’s Auto, Appellant, and Charter Oak Fire Insurance Company, Respondent.
    Decided May 10, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (see CPLR 5601).


text:
    Mirna Samuel et al., Appellants, v Macy’s Northeast, Inc., Respondent.
    Submitted March 7, 2011;
    decided May 10, 2011
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion from the order of the Appellate Term (see CPLR 5602 [a]).


text:
    Vistra Trust Company (Jersey) Limited, as Trustee of the Alsam, Colleen and Logany Settlements, et al., Respondents, v Marco Stoffel et al., Appellants.
    Submitted March 21, 2011;
    decided May 10, 2011
   On the Court’s own motion, appeal, insofar as taken from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed, without costs, upon the ground that such order does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed, without costs, upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motions for poor person relief and a stay dismissed as academic.


author: Ciparick, J. Graffeo, J.

text:
    [950 NE2d 101, 926 NYS2d 365]
    In the Matter of Afton C., a Child Alleged to be Neglected. Dutchess County Department of Social Services, Appellant; James C. et al., Respondents. (And Four Other Proceedings.)
    Argued March 22, 2011;
    decided May 5, 2011

      POINTS OF COUNSEL

      James Fedorchak, County Attorney, Poughkeepsie (Laura Gail Skojec of counsel), for appellant. I.
    The Family Court appropriately found that the parents neglected their children due to the father’s status as a level three sex offender who refused sex offender treatment and the mother’s failure to protect her children by allowing him to return to the home without treatment. (Matter of Katherine C., 122 Misc 2d 276; Nicholson v Scoppetta, 3 NY3d 357; Matter of Anthony, 81 Misc 2d 342; Matter of Anndrena A., 13 AD3d 1164; Matter of Kenneth V, 307 AD2d 767; Matter of Christopher JJ., 281 AD2d 720; Matter of Tammie Z., 66 NY2d 1; Matter of Mariah CC., 302 AD2d 799; Matter of Child Protective Servs. [Lionel Dunkirk T.], 260 AD2d 631; Matter of Dutchess County Dept. of Social Servs. v Peter B., 224 AD2d 617.) II. Actual harm to the subject children is not necessary to establish neglect in cases where an untreated level three sex offender resides in the home and refuses to engage in treatment. (Matter of Shaun X., 300 AD2d 772; Matter of Anndrena A., 13 AD3d 1164; Matter of Dutchess County Dept. of Social Servs. v Peter B., 224 AD2d 617.)

      Ronna L. DeLoe, Mamaroneck, Attorney for the Child Trevor C. I.
    The Appellate Division committed reversible error in reversing the Family Court order, which held that the father neglected Trevor C. because the father is an untreated level three sex offender. (People v Cotto, 28 AD2d 1116; Matter of Katrina W., 171 AD2d 250, 79 NY2d 976; Drena v Travelers Ins. Co., 192 App Div 703; Matter of Shaun X., 300 AD2d 772; Matter of Travis Lee G., 169 AD2d 769; Matter of Rebecca KK., 40 AD3d 1195, 9 NY3d 811; Matter of Enrique T. v Annamarie M., 15 AD3d 310; Matter of Kathleen OO., 232 AD2d 784; Matter of Carmen L., 37 AD3d 468, 8 NY3d 814; Matter of Richard S. [Michael S.], 72 AD3d 1133.) II. The Appellate Division committed reversible error in ignoring the pressure placed on Trevor C. to recant, which was intensified by his testifying in open court in the presence of his parents and the attorneys. (Matter of Kayla N., 41 AD3d 920; Matter of Corey C., 20 AD3d 736; Matter of Frantrae W., 45 AD3d 412, 10 NY3d 705; Matter of Lindsey BB. [Ruth BB], 70 AD3d 1205; Matter of Tristan R., 63 AD3d 1075; Matter of Martha Z., 288 AD2d 706; Matter of Caitlyn U., 46 AD3d 1144; Matter of Ingrid R., 18 Misc 3d 1129[A], 2008 NY Slip Op 50240[U].) III. The order denying the motion for reargument is not appealable. (Cong. Bais Rabbenu v 26 Adar N.B. Corp., 282 AD2d 642; Norton v Kenderes, 22 AD3d 817; Weinschneider v Weinschneider, 50 AD3d 1128.)

      James C., respondent pro se. I.
    The Dutchess County Department of Social Services course of action is preempted by state law. II. The appeal is moot.

      Farber Pappalardo & Carbonari, White Plains (John A. Pappalardo of counsel), Attorney for the Children Afton C. and others. I.
    Dutchess County Department of Social Services did not meet its burden of establishing harm or imminent risk of harm to the subject children by a preponderance of the evidence. (Nicholson v Scoppetta, 3 NY3d 357; Matter of Kenneth V., 307 AD2d 767; Matter of Kasey C., 182 AD2d 1117; Matter of Dutchess County Dept. of Social Servs. v Peter B., 224 AD2d 617.) II. The Appellate Division properly reversed the Family Court finding of neglect as to James C. because Dutchess County Department of Social Services did not prove risk or imminent risk. (Matter of Krista L., 20 AD3d 783; Matter of Jemila PP., 12 AD3d 964; Matter of Child Protective Servs. [Lionel Dunkirk T.], 260 AD2d 631; Nicholson v Scoppetta, 3 NY3d 357; Matter of Travis Lee G., 169 AD2d 769; Matter of Shaun X., 300 AD2d 772; Matter of Kasey C., 182 AD2d 1117.) III. The Appellate Division properly reversed the Family Court finding of neglect as to Grace C. (Matter of Alaina E., 33 AD3d 1084; Matter of Katherine C., 122 Misc 2d 276; Matter of Mariah CC., 302 AD2d 799; Matter of Kayla F., 39 AD3d 983.)

      New York Civil Liberties Union Foundation, New York City (Andrew L. Kalloch, Corey Stoughton, Christopher Dunn and Arthur Eisenberg of counsel), for New York Civil Liberties Union, amicus curiæ. I.
    Given the fundamental nature of familial rights, due process requires the State, in a neglect proceeding, to make a particularized showing of parental unfitness. (Troxel v Granville, 530 US 57; Wisconsin v Yoder, 406 US 205; Quilloin v Walcott, 434 US 246; Santosky v Kramer, 455 US 745; Matter of Sanjivini K., 47 NY2d 374; Matter of Bennett v Jeffreys, 40 NY2d 543; Stanley v Illinois, 405 US 645; Meyer v Nebraska, 262 US 390; Jacobson v Massachusetts, 197 US 11; Prince v Massachusetts, 321 US 158.) II. The presumption employed in the instant matter is particularly impermissible because New York’s sex offender classification system is fundamentally flawed and cannot be relied upon as an indicator of present or future dangerousness for any individual. (People v Ferrer, 14 NY3d 709; People v McFarland, 29 Misc 3d 1206[A], 2010 NY Slip Op 51705[U].)

      Donald S. Thomson, Elmira, and David A. Kagle, for Chemung County Department of Social Services, amicus curiæ. I.
    A level three sex offender poses a threat to children. II. Exposure of a child to a sex offender constitutes neglect. (Matter of Mary MM., 38 AD3d 956; Matter of Evelyn B., 30 AD3d 913;
      Matter of Michael VV. [Arthur VV.], 68 AD3d 1210; Matter of Anthony Y. [Kelly AA.—Paul AA.], 72 AD3d 1419; Matter of Alaina E., 33 AD3d 1084.) III. The mother’s and father’s failure to exercise a minimum degree of care with respect to their children constituted neglect. (Matter of Mary MM., 38 AD3d 956.)

      Alan P. Reed, County Attorney, Bath (Ruth A. Chaffee of counsel), for Steuben County Department of Social Services, amicus curiæ. I.
    The Appellate Division abused its discretion in reversing the Family Court’s decision by limiting its holding of reversal solely on the basis of respondent father’s Sex Offender Registration Act classification and a failure to show actual harm. (Nicholson v Scoppetta, 3 NY3d 357.) II. The Family Court’s findings of neglect are supported by the record and are consistent with prevailing statutes, case law and public policy. (Matter of Paul P., 306 AD2d 653; Matter of Evelyn B., 30 AD3d 913; Matter of Alaina E., 33 AD3d 1084; Matter of Christopher JJ., 281 AD2d 720; Matter of Christian F., 42 AD3d 716; Matter of Michael VV. [Arthur VV], 68 AD3d 1210; Matter of Mary MM., 38 AD3d 956; Matter of Paul U., 12 AD3d 969; Matter of Christopher C. [Joshua C.], 73 AD3d 1349; Matter of Anthony Y. [Kelly AA.—Paul AA.], 72 AD3d 1419.) III. Courts across the country hold that a sex offender whose underlying crime was committed against a child results in a presumptive finding of neglect or a rebuttable presumption of neglect against such person.

      Morrison & Foerster LLP, New York City (Matthew M. D’Amore of counsel), and Lawyers for Children, Inc. (Betsy Kramer of counsel) for Lawyers for Children, amicus curiae. I.
    The due process rights of parents and their children require a finding of neglect to be based on an individualized determination of actual or imminent harm. (Santosky v Kramer, 455 US 745; Troxel v Granville, 530 US 57; Kia P. v McIntyre, 235 F3d 749; Wooley v City of Baton Rouge, 211 F3d 913; Franz v United States, 707 F2d 582; Stanley v Illinois, 405 US 645; Prince v Massachusetts, 321 US 158; Moore v East Cleveland, 431 US 494; Mathews v Eldridge, 424 US 319; Vlandis v Kline, 412 US 441.) II. A presumption of harm based on a parent’s criminal status ignores the statutory and precedential mandates to identify the actual relationship between the crime committed and the risk of harm to the offender’s children. (Nicholson v Scoppetta, 3 NY3d 357; Matter of Marie B., 62 NY2d 352.)

      Stephen M. Dorsey, County Attorney, Ballston Spa (Karen E.S. D'Andrea of counsel), and Roger A. Wickes, County Attorney, Fort Edward (Daniel S. Martindale of counsel), for Saratoga County Department of Social Services and another, amici curiæ. I.
    The father’s status as a level three sex offender who refused to engage in sex offender treatment and the mother’s failure to protect the children by allowing him to return to the home did prove neglect by a preponderance of the evidence. (Nicholson v Scoppetta, 3 NY3d 357; Matter of Michael VV. [Arthur VV.], 68 AD3d 1210; Matter of Karissa NN., 19 AD3d 766; Matter of Cornell v Cornell, 290 AD2d 735; Matter of Christopher C. [Joshua C.], 73 AD3d 1349; Matter of Neithan CC., 56 AD3d 1000; Matter of Sean K., 50 AD3d 1220; Matter of Kole HH., 61 AD3d 1049; Matter of Cadejah AA., 33 AD3d 1155; Matter of Heather J., 244 AD2d 762.) II. It is not necessary to show that the children suffered actual harm to establish neglect in cases where an untreated level three sex offender resides in the home and refuses to engage in treatment. (Matter of Carlena B., 61 AD3d 752; Matter of Jesus JJ., 232 AD2d 752; Matter of Chianti FF., 205 AD2d 849; Matter of Michelle F., 222 AD2d 747.)
   OPINION OF THE COURT

Ciparick, J.

On this appeal, we consider whether there is sufficient evidence to support a finding that the subject children are neglected pursuant to article 10 of the Family Court Act. We agree with the Appellate Division that the evidence presented is insufficient to prove neglect.

In October 2007, respondent father pleaded guilty to rape in the second degree, engaging in sexual intercourse with a person less than 15 years of age (Penal Law § 130.30 [1]), and patronizing a prostitute in the third degree, which at the time of his conviction was defined as patronizing a prostitute under 17 years of age (former Penal Law § 230.04; L 2007, ch 74, § 5). He was sentenced to one year imprisonment, and was released on time served. The court adjudicated father a level three sex offender under the Sex Offender Registration Act (SORA), but he was never ordered to attend any sex offender treatment. Father returned home, where he lived with his wife and their five children, then between the ages of 4 and 14.

In November 2007, the Dutchess County Department of Social Services (DSS) filed neglect petitions pursuant to Family Court Act article 10 against both parents. As relevant here, the petitions alleged that father neglected the children because he was an “untreated” sex offender whose crimes involved victims between 13 and 15 years old. Mother allegedly “failed to protect the children” from father. DSS sought to have the children adjudicated neglected, both parents ordered into a sex offender relapse intervention program, and a temporary order of protection issued against father on the children’s behalf.

At the fact-finding hearing, the DSS caseworker who authored the neglect petitions testified that he began investigating the family after receiving a report from the SORA registry that father was an untreated level three sex offender. He did not receive any documentation from the New York County District Attorney’s office regarding father’s conviction, and had not interviewed any of the victims in that case. The caseworker acknowledged that he had no evidence that father was sexually inappropriate with any of the subject children.

Father testified that he “pled guilty to what ever [his] lawyer told [him] to plead guilty to,” and recalled that, during his plea colloquy, he had affirmed that he committed the crimes. He explained that the indictment had alleged that he patronized a prostitute “between 2000 and 2004,” when she was 15 to 19, but testified that he first met the victim in 2003, when she was 18. Father claimed that when he was asked during his plea colloquy “whether [he] engaged in sexual acts with her between 2000 and 2004 [he] said yes meaning . . . when she was 18 or 19. ” With respect to the second degree rape conviction, father refused to comment on whether he had sexual relations with someone below the age of consent, exercising his Fifth Amendment right. Family Court permitted him not to answer, but drew a “negative inference . . . that the victim was under the age of consent.” Father further testified that, other than the events resulting in his conviction, he had never had “intercourse with an under age woman.” He acknowledged that he was a level three sex offender under SORA, and had never received sex offender treatment.

Mother testified that she had “no . . . personal knowledge” of father’s crimes, beyond knowing what he had pleaded to, and had not inquired into the details. She did not think father was a risk to their children because “he has never engaged in any behavior . . . that would create a risk to his children.” Other witnesses included the eldest child and a school resource officer. DSS proffered father’s certificate of conviction, but no additional evidence was submitted regarding the facts underlying the conviction.

Family Court concluded that both parents neglected their children. It found that father’s behavior created a substantial risk of harm to the children because he is a convicted level three sex offender, and therefore “pose[s] a risk of harm to the public at large.” His testimony, in the court’s view, demonstrated a “lack of candor, a shortage of insight into his own behavior and . . . obvious attempts to avoid responsibility for the illegal acts involving minors.” Moreover, the court saw father’s “failure to address any issues in counseling [as] demonstrating] an ‘impaired level of parental judgment as to create a substantial risk of harm’ ” (quoting Matter of Shaun X., 300 AD2d 772, 772 [3d Dept 2002]). The court’s finding that mother had neglected the children was based on her “failure to inquire into the details of the father’s illegal conduct and her decision to gauge the children’s safety by her knowledge of the father.” Both parents appealed the finding of neglect.

The Appellate Division reversed the Family Court order, denied the petitions, and dismissed the proceedings, holding that “[t]he mere fact that a designated sex offender resides in the home is not sufficient to establish neglect absent a showing of actual danger to the subject children” (Matter of Afton C. [James C.], 71 AD3d 887, 888 [2d Dept 2010]). The court added that although Family Court could properly consider whether father’s testimony was evasive and that he invoked his Fifth Amendment right, “the evidence was insufficient to establish that the father posed an imminent danger to the children” (id.). Because DSS failed to prove that father’s presence endangered the children, the court found that, by extension, mother did not neglect them by allowing him to reside in the home (see id.). We granted DSS’s motion for leave to appeal from the Appellate Division order (15 NY3d 709 [2010]), and now affirm.

Under section 1012 (f) of the Family Court Act, a neglected child is defined as, inter alia:

“a child less than eighteen years of age
“(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care . . .
“(B) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof’ (Family Ct Act § 1012 [f] [i] [B]).

The statute thus imposes two requirements for a finding of neglect, which must be established by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]). First, there must be “proof of actual (or imminent danger of) physical, emotional or mental impairment to the child” (Nicholson v Scoppetta, 3 NY3d 357, 369 [2004]). In order for danger to be “imminent,” it must be “near or impending, not merely possible” (id.). Further, there must be a “causal connection between the basis for the neglect petition and the circumstances that allegedly produce the . . . imminent danger of impairment” (id.). This requirement is intended to “focus [neglect proceedings] on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior” (id.).

Second, any impairment, actual or imminent, must be a consequence of the parent’s failure to exercise a minimum degree of parental care (see Family Ct Act § 1012 [f] [i]; see also Nicholson, 3 NY3d at 368). This is an objective test that asks whether “a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances” (id. at 370). A parent may deviate from this standard by “unreasonably inflicting . . . a substantial risk” of harm to the child (Family Ct Act § 1012 [f] [i] [B]). Critically, however, “the statutory test is minimum degree of care — not maximum, not best, not ideal — and the failure must be actual, not threatened” (Nicholson, 3 NY3d at 370 [internal quotation marks omitted]).

DSS and the attorney for the eldest child argue that because father is an untreated, level three sex offender whose crimes involved minors, and because he failed to demonstrate sufficient introspection or remorse, the children were properly adjudicated neglected. DSS also maintains that mother neglected the children by allowing him to return home. In response, father and the attorney for the other four children argue that DSS failed to prove that either parent neglected their children.

To the extent that DSS is arguing that father’s status as a level three sex offender convicted of sex crimes involving minors is sufficient to establish a presumption that he poses a danger to his children in the absence of treatment, we disagree. In Nicholson, we rejected use of a presumption of neglect where a parent had allowed a child to witness domestic violence, holding that this bare allegation did not meet the Family Court Act’s requirements (see 3 NY3d at 371). We emphasized that a finding of neglect was only permissible where a preponderance of evidence established actual or imminent harm to the subject children as a result of the parent’s failure to exercise a minimal degree of care (see id. at 372). For similar reasons, we now reject any presumption that an untreated sex offender residing with his or her children is a neglectful parent. Even where, as here, the offender’s crimes involve victims younger than 18, that alone does not demonstrate that his actions “inflicted harm, or a substantial risk thereof’ to his children, or that the children’s “physical, mental or emotional condition . . . [was] in imminent danger of becoming impaired” (Family Ct Act § 1012 [f] [i] [B]).

DSS argues that because father is a level three sex offender under SORA, and has therefore been deemed particularly likely to reoffend (see Correction Law § 168-l [5], [6] [c]), he is a danger to the subject children. SORA assessment was not designed, however, to ascertain whether the offender has met the Family Court Act’s parental neglect standard. Here, even assuming that a level three SORA assessment is evidence of likely recidivism, DSS failed to prove that father’s crimes endangered his children. It follows that the likelihood of a repeat offense — which is all SORA purports to measure — is not directly relevant to whether the children are in imminent danger. While DSS could have introduced evidence from the plea and SORA proceedings, it did not do so, and the SORA designation alone is not dispositive.

No doubt there are circumstances in which the facts underlying a sex offense are sufficient to prove neglect. Where, for example, sex offenders are convicted of abusing young relatives or other children in their care, their crimes may be evidence enough (see e.g. Matter of Christopher C. [Joshua C.], 73 AD3d 1349, 1351 [3d Dept 2010]; Matter of Shaun X., 300 AD2d at 772-773). Our conclusion here might also be different if respondent had refused sex offender treatment after being directed to participate in it, or if other evidence showed that such treatment was necessary. In all cases, however, petitioner must meet its statutory burden. It failed to do so here.

DSS proved only father’s conviction; that he was adjudicated a SORA level three sex offender; that he never sought sex offender treatment; and that he was residing at home. This evidence, without more, does not demonstrate that father breached a minimum duty of parental care and poses a near or impending harm to his children. That he declined to discuss the circumstances of his conviction and, in Family Court’s view, lacked candor or insight into his behavior does not fill the evidentiary gap.

Because DSS failed to prove by a preponderance of the evidence that father posed an imminent danger to his children, it necessarily failed to prove that mother neglected the children by allowing father to return home.

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

Graffeo, J.

(concurring). I concur with the result reached by the majority but write separately to clarify why the evidence of neglect was insufficient in this case. As is clear from the majority opinion, this is not an area of law amenable to bright-line rules. Rather, whether neglect has been established during a proceeding turns on the particular facts and circumstances proven at the hearing. Here, the determination of insufficiency stems from the manner in which county social services chose to present its proof — there is no general principle of law that dictated this result. For this reason, I doubt that our holding in this case will have broad precedential value — but it does highlight the need for an adequate evidentiary basis before a finding of neglect can be entered.

In essence, the county relied almost entirely on the fact that the father had been convicted of certain criminal offenses and that he had been adjudicated a level three sex offender to support the inference that he posed an imminent threat of harm to his children and, concomitantly, that the mother was neglecting the children by failing to protect them from the father. Yet the county submitted only the certificate of conviction and did not offer any evidence detailing the facts underlying the criminal convictions. The record does not contain any accusatory instruments, witness statements or even the transcript from the plea or sentencing proceedings in the criminal case. The county’s attempts to develop proof concerning the criminal acts through questioning of the father were, not surprisingly, of limited value given his reluctance to provide details that might have substantiated the county’s case.

Nor did the county offer any evidence establishing the basis for the father’s designation as a level three sex offender. For example, the county did not submit any materials from the hearing held under the Sex Offender Registration Act (SORA), such as the risk assessment instrument or hearing transcript, that would have revealed the factors on which the SORA court relied in making that adjudication. The facts underlying that finding may have supported an inference that the father posed a threat of harm — but they do not appear in the record of this neglect proceeding.

Finally, the county failed to present evidence, expert or otherwise, explaining how the father’s criminal history indicated that he posed a risk of harm to his children. In fact, it remains unclear whether the neglect petition was filed because the county social services agency feared that the father would sexually offend against his own children or believed a neglect finding was warranted on the theory that his criminal conduct reflected such a profound lack of judgment on his part that it demonstrated an inability to properly fulfill his parental role. Even the caseworker who initiated the petition neglected to clarify the nature of the imminent risk he believed these parents posed to their children.

By detailing the absence of evidence in this case, I do not mean to suggest that proof of each type must be offered in every neglect proceeding similar to this one. If some of these gaps had been filled, the evidence might have risen to the sufficiency threshold. On this record, however, the neglect findings were not sufficiently supported and the Appellate Division order dismissing the petitions must be affirmed.

Chief Judge Lippman and Judges Read, Smith, Pigott and Jones concur with Judge Ciparick; Judge Graffeo concurs in result in a separate opinion.

Order affirmed, with costs.

      . The petitions also alleged that father “engaged in excessive corporal punishment” of his children. Family Court found that DSS “failed to prove . . . that the children’s physical, mental or emotional condition has been impaired as a result of excessive corporal punishment.” DSS did not appeal that determination, and it is not before us.

      . Family Court issued an order of protection, requiring father to vacate the home. That order is likewise not before us.

      . Notably, these statutory requirements have constitutional underpinnings:
      “Fundamental constitutional principles of due process and protected privacy prohibit governmental interference with the liberty of a parent to supervise and rear a child except upon a showing of overriding necessity. . . . [Thus,] the State may not deprive a natural parent of the right to the care and custody of a child absent a demonstration of . . . behavior evincing utter indifference and irresponsibility to the child’s well-being” (Matter of Marie B., 62 NY2d 352, 358 [1984]).

      . Additionally, father argues that this appeal is moot, since (1) he has already submitted to a psychological assessment which determined that he was not a risk to his own children, (2) his wife has moved to Canada with the four younger children and has no intention of returning, while his felony conviction prevents him from entering Canada, and (3) the proceeding involving the eldest child became moot when the child turned 18 during the course of this appeal. While we agree that the proceeding regarding the 18 year old is now moot, the other four are not. That mother and the children are in Canada does not render these proceedings moot, since they may return. Father’s submission to psychological evaluation creates no mootness concern, as DSS seeks to have the children adjudicated neglected and father entered into a treatment program.