author:
Pigott, J.
      Rivera, J.

text:
    [44 NE3d 907, 23 NYS3d 609]
    In the Matter of Crystal Hawkins, Appellant, v Elizabeth Berlin, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, et al., Respondents.
    Argued October 22, 2015;
    decided November 23, 2015

      POINTS OF COUNSEL

      Milbank, Tweed, Hadley & McCloy LLP, New York City (Andrea Hood and Robert Hora of counsel), and Seymour W. James, Jr., The Legal Aid Society, New York City (Elizabeth Hay and Kenneth Stephens of counsel), for appellant.
    I. The second level review determination is irrational as it lacks statutory basis. (Cittadino v Bellacosa, 136 Misc 2d 999; Matter of Windsor Place Corp. v State Div. of Hous. & Community Renewal, Off. of Rent Admin., 161 AD2d 279; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Ovadia v

      Office of the Indus. Bd. of Appeals, 19 NY3d 138; Matter of Madison-Oneida Bd. of Coop. Educ. Servs. v Mills, 4 NY3d 51; Matter of Rose v Kirk, 303 AD2d 1047; Matter of Melendez v Wing, 8 NY3d 598; Corrigan v Affleck, 523 F Supp 498.) II. Appellant is entitled to all child support collections or arrears for the period between September 2005 and January 2007. (Matter of Delmar v Blum, 53 NY2d 105.) III. At a minimum, appellant is entitled to any child support arrears that exceed the amount of assistance paid prior to January 2007.

      Eric T. Schneiderman, Attorney General, New York City (Claude S. Platton, Barbara D. Underwood and David Lawrence III of counsel), for Elizabeth Berlin, respondent.
    I. Respondents correctly concluded that Crystal Hawkins was not due a payment of excess child support. (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761; Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148; Herzog Bros. Trucking v State Tax Commn., 72 NY2d 720; Matter of Golf v New York State Dept. of Social Servs., 91 NY2d 656; Matter of Louis Harris & Assoc. v deLeon, 84 NY2d 698; Matter of John P. v Whalen, 54 NY2d 89; Bowen v Gilliard, 483 US 587; Matter of Howard v Wyman, 28 NY2d 434; Matter of Kaslow v City of New York, 23 NY3d 78; Matter of Melendez v Wing, 8 NY3d 598.) II. Crystal Hawkins is not entitled to receive child support collected for her son, Michael, while his Supplemental Security Income application was pending. (Matter of Delmar v Blum, 53 NY2d 105.)

      Zachary W. Carter, Corporation Counsel, New York City (Scott Shorr, Richard Dearing and Francis F. Caputo of counsel), for Robert Doar, respondent.
    Crystal Hawkins lacks any legal entitlement to (1) the amount of current child support payments the New York City Department of Social Services collected for her son, Michael, between September 2005 and January 2007; (2) any child support arrears the Department has collected on behalf of Michael that accrued between September 2005 and January 2007; and (3) any child support arrears the Department has collected on behalf of Michael that exceed the public assistance Crystal Hawkins’ family received before January 2007; and her claims for the second and third amounts are nonjusticiable. (Matter of Rose v Kirk, 303 AD2d 1047; Bachety v Kinsella, 146 AD2d 725; Matter of Altamore v Barrios-Paoli, 90 NY2d 378; Cuomo v Long Is. Light. Co., 71 NY2d 349.)
   OPINION OF THE COURT

Pigott, J.

Under the Social Services Law, a recipient of public assistance must assign to the State and social services district his or her right to child support (see Social Services Law § 158 [5]). The recipient is entitled to any support payments that exceed the total amount of public assistance received (18 NYCRR 347.13 [f] [3]). Respondents determined that no such excess existed in this case, and because their determination was not arbitrary, capricious or erroneous as a matter of law, we affirm.

L

Beginning in December 1989, petitioner Crystal Hawkins received public assistance from respondent New York City Department of Social Services, also known as the New York City Human Resources Administration (the City). In May 1990, she gave birth to a son, Michael, who was added to her public assistance case. As a condition of receiving public assistance, petitioner assigned her right to child support for Michael, which the City then attempted to collect from Michael’s father (see Social Services Law § 158 [5], [6] [i]).

In January 2007, the Social Security Administration (SSA) determined Michael was eligible to receive Supplemental Security Income (SSI), retroactive to September 2005. Michael’s eligibility for SSI, however, made him ineligible for public assistance. The City removed him from petitioner’s case in January 2007 and canceled the assignment of support rights going forward, though it continued to collect child support arrears that had accrued prior to January 2007. SSA ultimately reimbursed the City $1,232.50 for the public assistance benefits it paid on Michael’s behalf while his SSI application was pending.

In June 2011, petitioner requested what is called a first-level desk review from the City to determine whether she was owed any excess child support payments. The City determined no payments were owed because it had not collected sufficient child support arrears to exceed the public assistance provided to petitioner’s household. After learning of the City’s determination, petitioner requested a so-called second-level desk review from respondent New York State Office of Temporary and Disability Assistance (the State). The State confirmed the City’s initial determination.

Petitioner then commenced this CPLR article 78 proceeding challenging respondents’ determinations as arbitrary, capricious and erroneous as a matter of law. Supreme Court denied the petition and dismissed the proceeding (2012 NY Slip Op 32922[U] [2012]), and a divided Appellate Division affirmed (118 AD3d 496 [1st Dept 2014]). The majority concluded that respondents rationally determined no payment was owed since the total amount of public assistance paid to petitioner and her family exceeded the amount of child support arrears and other reimbursement the City collected when her public assistance case closed in February 2007 (id. at 499-500). The dissenting Justices agreed with the majority that petitioner was not entitled to any child support collected on Michael’s behalf from September 2005 through January 2007 (id. at 502 [Gische, J., dissenting]). They would have modified the City’s determination, however, “to the extent of remanding the matter back for a recalculation of benefits paid for the family to exclude those periods of time after 2007 when Michael was not statutorily considered part of petitioner’s family” (id. at 500).

Petitioner appealed as of right pursuant to CPLR 5601 (a).

IL

As a condition of receiving public assistance, a person must assign to the State and local social services district “any rights to support that accrue during the period that a family receives [benefits]” (Social Services Law § 158 [5]). The assignment “terminate [s] with respect to current support rights upon a determination by the social services district that such person is no longer eligible for” assistance (id.). The assignment does not terminate, however, with respect to “any unpaid support obligation that has accrued” (id.). Stated differently, when the City determines that a person is no longer eligible for public assistance, the assignment of current and future support rights ends and the City may collect only those support payments that already accrued but have not yet been paid, i.e., arrears. Once support payments are current, they flow directly to the person who is entitled to them. At any time during the assignment, the City may not collect arrears that “exceed the amount of unreimbursed past assistance” it has paid to the family (see 18 NYCRR 347.13 [f] [3]).

Petitioner contends that she is entitled to current child support payments the City collected from September 2005 to January 2007 as well as child support arrears the City collected after 2007. Respondents rationally determined that petitioner is entitled to neither of these sums.

With respect to the payments from 2005 to 2007, petitioner argues that the assignment of current support ended when Michael became eligible for SSI and therefore ineligible for public assistance. Because SSA declared Michael eligible for SSI retroactive to 2005, she claims his assignment terminated in 2005 and the City could not collect current support payments that became due after that date. Section 158 (5) of the Social Services Law plainly states, however, that the assignment of current support rights terminates “upon a determination by the social services district” that the recipient is no longer eligible for public assistance (Social Services Law § 158 [5]). The City did not render a determination that Michael was ineligible for public assistance until January 2007, when he received his first SSI check (see Social Services Law § 158 [2] [a person becomes ineligible for public assistance when he begins “receiving federal supplemental security income”]). That SSA made Michael’s SSI benefits retroactive to 2005 does not change the date of the City’s determination, which the statute defines as the operative time for terminating the assignment of current support.

Petitioner claims she is entitled to payments the City collected from September 2005 to January 2007 for the additional reason that SSA reimbursed the City for the benefits it paid on behalf of Michael during that time. According to petitioner, any child support payments the City collected from Michael’s father over the same period necessarily exceeded the amount of assistance it provided insofar as the assistance had already been reimbursed by SSA. Petitioner’s claim sounds appealing but ultimately fails. Respondents properly credited SSA’s reimbursement check towards the total public assistance provided to petitioner’s family before 2007, and even with that credit, there was no excess.

With respect to arrears collected after 2007, petitioner claims she is entitled to any payment that exceeded the total amount of public assistance her family received. Remember that, pursuant to the assignment, the City may collect support payments that have already accrued so long as those payments do not “exceed the amount of unreimbursed past assistance” the City has provided to petitioner’s family (18 NYCRR 347.13 [f] [3]). Respondents determined there was no excess. According to their calculations, the City had paid petitioner’s family $112,588.83 in public assistance from 1989 until 2011 and recovered only $57,524 in child support. Deducting the $1,232.50 reimbursement check the City received from SSA, respondents determined the City must collect $53,832.33 in child support arrears before petitioner will be entitled to an excess.

Petitioner takes issue with respondents’ calculation of “unreimbursed past assistance” because it includes assistance paid to petitioner’s family after 2007 (until 2011), when Michael was statutorily excluded from her public assistance budget (see Social Services Law § 131-c [1] [individuals who are recipients of federal supplemental security income benefits are not “included in the household for purposes of determining eligibility and grant amounts”]). According to petitioner, the City’s right to collect child support arrears paid on Michael’s behalf is limited to the amount of unreimbursed past assistance paid to the household that included Michael. Allowing the City to apply support for Michael to public assistance benefits that excluded his needs, she contends, is directly contrary to the Social Services Law.

We need not decide whether respondents’ calculations are correct in order to conclude that their determinations were not arbitrary, capricious or erroneous as a matter of law, because even petitioner’s proposed calculation yielded no excess. From 1989 until 2007, the City paid petitioner’s family $101,884.41 in benefits and has recouped only $58,756.50. Thus, under any calculation petitioner proposes, the City has not yet collected child support arrears that exceed the unreimbursed benefits her family received.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Rivera, J.

(concurring and dissenting in part). In this appeal, petitioner Crystal Hawkins presents the Court with a question of statutory construction which the majority has ill-advisedly chosen to avoid. In my opinion, the posture of the case requires that we resolve her claim that respondents have misinterpreted the Social Services Law and, as a result, miscalculated her public assistance and child support arrears. To do otherwise places petitioner at risk of future erroneous determinations, even though her argument has merit and entitles her to relief. I, therefore, dissent from that portion of the majority opinion that disposes of petitioner’s claims without resolving whether respondents have correctly interpreted and applied the law to petitioner’s case.

As required by Social Services Law § 158 (5), petitioner, as a recipient of subsistence payments under the State’s Safety Net Assistance program (SNA), on behalf of herself and Michael, assigned to respondent New York City Human Resources Administration (HRA) Michael’s child support payments “that accrue during the period that [the] family receives” public assistance. At the age of 15, Michael was found eligible for federal Supplemental Security Income (SSI), making him statutorily ineligible for ongoing SNA payments under Social Services Law § 158 (2). Thereafter, as a direct result of his status as an SSI recipient, and as mandated by Social Services Law § 131-c (1), respondents excluded Michael from petitioner’s household for purposes of calculating future SNA payments to the other members of petitioner’s family (Social Services Law § 131-c [1] [“For the purposes of determining eligibility for and the amount of assistance payable . . . (t)he provisions of this subdivision shall not apply to individuals who are recipients of federal supplemental security income benefits”]). Morever, pursuant to state regulation, petitioner’s family was considered a separate household from Michael, even though Michael lived with petitioner. As provided for in 18 NYCRR 352.2 (b), “[flor the purposes of such monthly grants and allowances to households under . . . Safety Net Assistance non-federally participating . . . children and adults residing with an SSI beneficiary must be considered a separate household from the SSI beneficiary with whom they live.”

Petitioner’s assignment of Michael’s child support terminated by law once he was deemed ineligible for SNA because he was receiving SSL Social Services Law § 158 (5) states expressly that assignment of a person’s support payment “terminate[s] with respect to current support rights upon a determination . . . that such person is no longer eligible for [public] assistance.” However, the assignment remains in effect “with respect to the amount of any unpaid support obligation that has accrued during the period that a family received . . . assistance” (Social Services Law § 158 [5]). In other words, once Michael was removed from petitioner’s household she was entitled to future support payments, but not payments for arrears that accrued during the period before Michael’s exclusion (see Social Services Law §§ 158 [5]; 131-c [1]).

As is her right, petitioner requested an accurate “accounting of the collections and disbursements made on [her] behalf” as a “former recipient of public assistance . . . who is or was receiving child support enforcement services” (18 NYCRR 347.25 [a] [1]). I agree with the majority that petitioner is not entitled to child support arrears HRA collected from January 2005 through September 2007. The applicable statutory and regulatory provisions establish that there is no legal impediment to HRA’s collection of child support payments assigned by petitioner under Social Services Law § 158 (5), so long as the amount collected does not exceed the remaining amount of unreimbursed public assistance (Social Services Law § 158 [5]; 18 NYCRR 347.13 [f] [3]). Here, the child support collected through January 2007 was credited against public assistance paid to petitioner’s family, and since, even under the calculation methodology advocated by petitioner, HRA has not received support payments in excess of public assistance payments actually provided to petitioner up to 2007, she has no claim to these support arrears.

However, her claim for a proper determination of the child support arrears has merit. As explained in the determination of New York State’s Division of Child Support Enforcement of the Office of Temporary and Disability Assistance (ODTA), for accounting purposes, excess support payments consist of the amount of child support recovered that is greater than the amount of total cash assistance (minus any other reimbursements) paid to petitioner for the entire period she was on public assistance. Thus, ODTA calculated petitioner’s benefits from 1989 to 2011, subtracted from that amount the child support actually recovered and the SSI reimbursement for Michael’s interim payment, and concluded that as of August 1, 2011, $53,832.33 in public assistance remained unreimbursed. Petitioner contends that it was error to include in these calculations any payments for periods from 2007 forward, when Michael was not part of petitioner’s household or budget for public assistance purposes. She is correct.

Social Services Law § 158 (5) expressly terminated petitioner’s assignment of Michael’s support payments to HRA because he was no longer eligible for SNA payments. However, HRA retained rights under the assignment for any arrears for the period during which the family received SNA. The critical question, then, is whether Michael, as the person ineligible for SNA, is part of the public assistance “family” only during those periods when HRA actually provided Michael with SNA payments, or, is Michael also part of the “family” by the mere fact that he resides in petitioner’s household, regardless of whether HRA provides for his needs through the SNA program.

Petitioner argues that “family” in Social Services Law § 158 (5) does not include Michael because Social Services Law § 131-c (1) removed him from the household for public assistance purposes, and the State’s own regulations distinguish between an SSI recipient and the “family with which the individual resides” (18 NYCRR 353.2 [a] [6]). Respondents contend that Social Services Law § 158 (5) refers only to when the assignment of support begins and ends, not how to calculate how much public assistance has been paid to petitioner’s family for the purpose of determining if the support payments exceeded the public assistance payments. They further argue that Social Services Law § 131-c (1) does not require that Michael be treated as separate from petitioner’s household for all purposes, and should be limited in application to determinations of public assistance eligibility and budget amounts.

Respondents’ construction of the statute cannot be squared with the State’s statutory and regulatory framework, which treats Michael as a separate household for public assistance purposes (see Social Services Law § 131-c [1]; 18 NYCRR 353.2 [a] [6]). That separate treatment is a direct consequence of his ineligibility for ongoing SNA payments, meaning HRA did not provide for his needs through the SNA program. Also, to the extent HRA continued to provide for petitioner, by legal mandate it had to treat Michael as if he was no longer present in her household. As this Court stated in Matter of Melendez v Wing (8 NY3d 598, 604-605 [2007]), Social Services Law § 131-c (1) mandates exclusion of SSI recipients from the public assistance household wherein they reside. Thus, during the time Michael received SSI payments and resided with petitioner, he was not part of petitioner’s public assistance “family.” In other words, once he was excluded from petitioner’s household, he was not part of a family receiving SNA and child support within the meaning of Social Services Law § 158 (5). This may be a legal fiction, as respondents argue, but it is a legal fiction that grounds Michael’s legal status, and it is this status that matters for purposes of construing the Social Services Law.

Furthermore, as the dissent below correctly noted, references to “family” and “families” in Social Services Law § 131 and part 347 of the state regulations are only meaningful if interpreted to include the person for whom child support payments are collected. Certainly, there would be no purpose to collect and credit child support against the public assistance provided to the family if the person receiving child support were not included in the family’s grant determination and budget.

Respondents also contend that including Michael within the family for purposes of Social Services Law § 158 (5), regardless of his exclusion from the household for SNA-eligibility and grant allocation purposes, is consistent with federal public assistance legislation requiring assignment of child support by a member of a family receiving public assistance (42 USC § 608 [a] [3]). However, the federal statutory language cited by respondents does not define “family,” nor does it explicitly include as a member of the public assistance household any person found ineligible for assistance, but who is entitled to child support payments. Thus, the federal statute provides no additional interpretive guidance or support for respondents’ construction of Social Services Law § 158 (5).

Aside from the statutory argument promoted by respondents, they assert two policy arguments in support of their determination that the excess child support calculation may include all public assistance provided to petitioner. First, they contend that their construction of Social Services Law § 158 (5) aligns with the federal policy reflected in 42 USC § 608, that child support for one person should be used to offset public assistance to the entire family, on the assumption that families generally share their resources among all members. This Court previously explained this “filing-unit rule” “put[s] parents and minor siblings who lived together into a single group whose combined income, resources and needs were pooled for purposes of determining [public assistance] eligibility and benefit level” (Matter of Melendez, 8 NY3d at 604, citing former 42 USC § 602 [a] [38], as added by Deficit Reduction Act of 1984, Pub L 98-369, § 2640 [a] [3], 98 US Stat 494). Respondents’ second policy-based argument is that the application of their methodology for calculating excess child support maximizes distribution of limited governmental resources to needy families by adding funds to public assistance programs.

These arguments are unpersuasive. In Matter of Melendez, this Court held that our State Legislature specifically intended that Social Services Law § 131-c (1) exclude SSI recipients from application of the “filing-unit rule” (Matter of Melendez, 8 NY3d at 605). For the reasons I have already discussed, Social Services Law § 131-c (1) does not permit inclusion of an SSI recipient as part of a public assistance household for the sole purpose of offsetting that recipient’s child support payments against public assistance payments received by those with whom the child resides.

Furthermore, these policy arguments ignore the obvious inconsistency of respondents’ position. If the legislative intent of Social Services Law § 131-c (1) is to increase a family’s total resources by ignoring Michael’s SSI payments when determining a family’s public assistance eligibility and budget allocation, it would appear to undermine this laudable goal to permit HRA to withhold from petitioner and Michael any excess child support arrears — an obvious source of potential monetary assistance. Such result is particularly difficult to reconcile with the overall statutory purpose of SNA and other public assistance programs which provide a safety net for those members of our communities, like petitioner and Michael, who face dire financial circumstances (Social Services Law § 131 [1]).

The unfortunate truth is that Michael’s father may never pay the entirety of child support he owes, much less the pre2007 arrears that cover the SNA payments actually provided for Michael. Nevertheless, under the law petitioner is currently entitled to a correct accounting of her public assistance and child support. For that reason, I would remit for an appropriate recalculation, meaning one that permits respondents to offset the support payments HRA collected against the amount of public assistance provided to petitioner during the periods when HRA provided for Michael’s needs through the SNA program.

Chief Judge Lippman and Judges Abdus-Salaam and Stein concur; Judge Rivera dissents in part in an opinion in which Judge Fahey concurs.

Order affirmed, without costs.

      . As of 2001, petitioner received public assistance benefits under the State’s Safety Net Assistance Program (see Social Services Law § 157 et seq.).

      . The record indicates that petitioner received approximately $10,000 in child support payments directly from Michael’s father after 2007.

      . A first-level desk review is “an accounting of the collections and disbursements made on behalf of a current or former recipient of public assistance . . . who is or was receiving child support enforcement services” (18 NYCRR 347.25 [a] [1]).

      . Michael’s father owes $46,172.71 in child support arrears.

       42 USC § 608 (a) (3) states,
      “(3) No assistance for families not assigning certain support rights to the State
      “A State to which a grant is made under section 603 of this title shall require, as a condition of paying assistance to a family under the State program funded under this part, that a member of the family assign to the State any right the family member may have (on behalf of the family member or of any other person for whom the family member has applied for or is receiving such assistance) to support from any other person, not exceeding the total amount of assistance so paid to the family, which accrues during the period that the family receives assistance under the program.”


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [44 NE3d 924, 23 NYS3d 626]
    The People of the State of New York, Respondent, v Luis Ortiz, Appellant.
    Argued November 18, 2015;
    decided December 16, 2015

      POINTS OF COUNSEL

      Richard M. Greenberg, Office of the Appellate Defender, New York City (Anant Kumar and Joseph M. Nursery of counsel), and Jones Day, New York City (Jordan Cerruti of counsel), for appellant.
    I. The doctrine of collateral estoppel barred the introduction of evidence of the use or threatened use of a “dangerous instrument.” (People v O’Toole, 22 NY3d 335; People v Goodman, 69 NY2d 32; People v Acevedo, 69 NY2d 478.) II. The mistaken statement made by defense counsel at arraignment should not have been submitted into evidence: defense counsel informed the court the statement was incorrect; its submission forced defense counsel to become a fact witness in violation of the advocate-witness rule; and the prosecutor materially misrepresented defense counsel’s testimony to the jury. (People v Kallamni, 14 AD3d 316; People v Cassas, 84 NY2d 718; People v Berroa, 99 NY2d 134; Ellis v County of Broome, 103 AD2d 861; S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437; People v Townsley, 20 NY3d 294; People v Hernandez, 62 AD3d 401; Williams v Brooklyn El. R.R. Co., 126 NY 96; People v Ashwal, 39 NY2d 105; People v Calabria, 94 NY2d 519.)

      Robert T. Johnson, District Attorney, Bronx (Catherine M. Reno, Joseph N. Ferdenzi and Stanley P. Kaplan of counsel), for respondent.
    I. The trial court and the Appellate Division correctly determined that the doctrine of collateral estoppel did not require preclusion of testimony regarding the razor blade because defendant did not show that the jury at his first trial necessarily decided this factual issue in his favor and, in any event, the testimony as to the razor blade was essential to the complainants’ narrative and establishing an element of the crime on trial. (People v Acevedo, 69 NY2d 478; People v Lewis, 69 NY2d 321; Ando v Woodberry, 8 NY2d 165; People v Aguilera, 82 NY2d 23; People v Berkowitz, 50 NY2d 333; People v Plevy, 52 NY2d 58; People v Goodman, 69 NY2d 32; Ashe v Swenson, 397 US 436; People v O’Toole, 22 NY3d 335; People v Brown, 48 NY2d 388.) II. Defendant failed to preserve his challenges to the prosecutor’s summation. In any event, the trial court properly admitted the arraignment statement made by defense counsel as impeachment evidence, and the prosecutor did not improperly comment on the evidence at trial. (People v Iannelli, 69 NY2d 684; People v Brown, 98 NY2d 226; People v Rivera, 58 AD2d 147, 45 NY2d 989; People v Boyd, 58 NY2d 995; People v McPherson, 56 NY2d 696; People v Cassas, 84 NY2d 718; People v Walker, 83 NY2d 455; People v Betts, 70 NY2d 289; People v Tice, 131 NY 651; People v Johnston, 228 NY 332.)
   OPINION OF THE COURT

Pigott, J.

This case presents two issues for our review. The first is whether the doctrine of collateral estoppel bars the People from introducing, at defendant’s second trial, evidence that defendant threatened the victim of a burglary with a razor blade when the jury had acquitted defendant of charges involving the use or threatened use of a dangerous instrument at the first trial. The second issue is whether the trial court erred when it permitted the People to introduce a statement made by defense counsel at arraignment that was damaging to her client but then denied counsel’s request to withdraw. We hold that collateral estoppel does not apply in this case but that the advocate-witness rule required the court to grant counsel’s motion to withdraw or to declare a mistrial.

I

Defendant Luis Ortiz was charged with burglary in the first degree (Penal Law § 140.30 [3]), burglary in the second degree (Penal Law § 140.25) and related offenses in connection with an incident that occurred on July 20, 2006 in the Bronx. According to the People, Colpo Manuel Valenzuela was entering his apartment with his girlfriend, Para Nunez, around 1:00 in the afternoon when defendant approached them from behind. Defendant grabbed Nunez and, while holding a razor blade to her neck, pushed Valenzuela and Nunez through the door. He threatened to cut Nunez’s throat if Valenzuela did not give him money or jewelry. Valenzuela struck defendant in the head, causing defendant to drop the razor blade and allowing Nunez to break free. While Valenzuela and defendant struggled, Nunez ran to get Valenzuela’s nephew, Jose Henrique Colon, who had been sleeping in one of the bedrooms in the apartment. Together, Colon and Valenzuela restrained defendant on a bed and Nunez called 911. She told the operator that someone had broken in and that Valenzuela had cornered the intruder with a kitchen knife.

Valenzuela, Colon and Nunez all testified to that effect at trial. Defendant, however, told a different story. He testified that he and a female friend went to the apartment building looking for a room to rent and stopped at Valenzuela’s apartment to ask for the superintendent. Valenzuela made inappropriate comments to defendant’s friend and the two men engaged in a verbal altercation that escalated into a full-fledged fight. At some point during the struggle, according to defendant, Valenzuela pulled defendant into the apartment. He testified that he was unarmed but that Valenzuela grabbed a kitchen knife and lunged at defendant, eventually restraining him on the bed.

The jury rejected defendant’s rendition of events and found him guilty of burglary in the second degree. It acquitted him, however, of burglary in the first degree and robbery in the first degree. The Appellate Division reversed the conviction for reasons not relevant to this appeal (69 AD3d 490 [1st Dept 2010]), and defendant proceeded to a second trial on the sole charge of burglary in the second degree.

Before the second trial began, defense counsel moved to preclude the prosecution from presenting evidence of the razor blade at trial. Counsel argued that the jury in the first trial necessarily decided that defendant did not use a razor blade by acquitting him of first-degree burglary, which requires the People to prove that defendant used or threatened the use of a dangerous instrument (see Penal Law § 140.30). The trial court denied the motion and allowed the People’s witnesses to testify about the use of the razor blade when giving their accounts.

Defendant testified on his own behalf, as he did at the first trial. On cross-examination, the People attempted to impeach defendant’s testimony that Valenzuela came after him with a kitchen knife with the following statement made by his counsel at arraignment:

“Your Honor, my understanding of the events for [defendant] is vastly different [from the prosecution’s]. I believe [defendant] was at this apartment looking to possibly rent a room there. An argument began between him and the landlord, and at which point the complaining witness came after him with a razor blade, which explains why it was recovered, and that it belongs to the people who lived there” (emphasis added).

The People sought to introduce this statement to show that defendant previously told his attorney that Valenzuela came after him with a razor blade, not a kitchen knife, as he testified. Defense counsel vigorously objected, arguing that she misspoke at arraignment and that introducing the statement would force her to become a witness. The court overruled defendant’s objection and allowed the prosecutor to impeach defendant with counsel’s prior statement.

After defense counsel had an opportunity to review her notes from the arraignment, she discovered that she had indeed misspoken. As it turned out, defendant had told her Valenzuela came after him with a knife, not a razor blade, consistent with his testimony during trial. The court reviewed her notes and confirmed that her statement at arraignment did not reflect what defendant had told her. In light of this revelation, defense counsel asked to withdraw as counsel and moved for a mistrial. She argued that her client’s right to confront her about the statement would require her to take the stand and tell the jury that she misstated material facts moments before advocating for her client’s innocence in summation.

The court denied counsel’s requests but offered to have another attorney question her about the statement or to introduce a stipulation as to what counsel would say if asked about the statement. After renewing her objection and being overruled a second time, defense counsel agreed to the stipulation, which the court read aloud to the jury. It provided that if counsel were to testify, she would state that her remarks at arraignment were incorrect and that defendant did not tell her Valenzuela had come after him with a razor blade, but rather, defendant told her Valenzuela came after him with a kitchen knife. Following deliberations, the jury convicted defendant of burglary in the second degree.

Defendant moved to set aside the conviction pursuant to CPL 330.30 (1) on the grounds that the trial court erred in not precluding testimony about the razor blade and in denying defense counsel’s motion to withdraw. Supreme Court denied the motion and sentenced defendant as a persistent felony offender to 23 years to life in prison.

The Appellate Division modified the judgment by vacating the sentence and remanding the case for resentencing, and as so modified, affirmed (114 AD3d 430 [1st Dept 2014]). A Judge of this Court granted defendant leave to appeal (24 NY3d 1087 [2014]), and we now reverse.

II

The doctrine of collateral estoppel originated in civil litigation as a means of ensuring the swift and peaceful resolution of disputes (see People v Goodman, 69 NY2d 32, 37 [1986]). It applies in criminal prosecutions to bar relitigation of issues resolved in a defendant’s favor at an earlier trial (see People v Acevedo, 69 NY2d 478, 484 [1987]). We considered the doctrine most recently in People v O’Toole (22 NY3d 335 [2013]) where we held that defendant’s acquittal of first-degree robbery based on the alleged display of a firearm barred the People from introducing, at a later trial for second-degree robbery, evidence that a firearm was displayed (id. at 336).

The defendant in that case took a gold chain from a man named Horsey who managed a barber shop. He was charged with, among other things, robbery in the first degree based on the display of a firearm and robbery in the second degree for being aided by another person actually present (id. at 337). At defendant’s first trial, Horsey testified that he owed the defendant money and that the defendant threatened to close his barber shop if Horsey didn’t pay. About an hour after defendant made the threat, a large man walked into the shop, pointed a gun at Horsey and handed him a telephone with defendant’s voice on the other end (id.). Horsey’s young child was sitting nearby (id. at 342 [Pigott, J., dissenting]). Horsey followed the man out of the store, where the defendant was waiting for him, and gave the defendant a valuable gold chain (id. at 337). The jury acquitted the defendant of the first-degree charge but convicted him of second-degree robbery. We concluded that the jury could not have logically acquitted the defendant of first-degree robbery unless it necessarily decided that the People failed to prove beyond a reasonable doubt that the robbery involved the display of a firearm (id. at 338).

We also observed, however, that the rigid application of collateral estoppel sometimes gives way to society’s interest in ensuring the correctness of criminal prosecutions (see id. at 339; see also People v Berkowitz, 50 NY2d 333, 345 [1980]). Thus, we said that if it becomes apparent, in a future case, that collateral estoppel “cannot practicably be followed if a necessary witness is to give truthful testimony, then [the doctrine] should not be applied” (O’Toole, 22 NY3d at 339). Collateral estoppel did not pose practical difficulties in O’Toole because the facts could be told in such a way, on retrial, that they did not call for testimony about the firearm: the second-degree robbery charge required the People to prove only that defendant forcibly stole property aided by another person actually present. Without mentioning the firearm, Horsey could have testified that a large man came into his shop, near Horsey’s young child, handed him a phone with defendant on the other end and led Horsey outside to meet defendant, who ultimately stole Horsey’s gold chain. That version of events would not have required the complaining witness to materially alter his testimony or provide the jury with a misleading or untruthful account.

By contrast, the practical difficulties of applying collateral estoppel in this case “outweigh the otherwise sound reasons for preventing repetitive litigation” (Berkowitz, 50 NY2d at 344). Unlike the witness in O’Toole, Nunez and Valenzuela would have had to materially alter their testimony and mislead the jury in order to omit reference of the razor blade. They both testified that defendant threatened to cut Nunez’s throat if Valenzuela did not give him money or jewelry and that defendant made a slitting gesture with his hand when he uttered the threat. If not permitted to mention the razor blade, the complainants would have been required to eliminate this portion of their testimony or else state, misleadingly, that defendant pushed Nunez and Valenzuela into the apartment and threatened to hurt Nunez simply by grabbing her from behind, without a weapon. Nunez would not have been able to explain, however, how defendant threatened her or what he threatened to do. Nunez also would have been prevented from explaining why she put up no resistance to a man she had never seen before.

Contrary to defendant’s assertion, the fact that Nunez did not tell the 911 operator about the razor blade does not mean she could omit it from her testimony in court. The 911 call reflects Nunez’s hurried and frightened description of the emergency, not its inception, and it is likely that Nunez neglected to tell the operator every detail that would ultimately become part of her trial testimony. Moreover, at the time of the call, defendant was not wielding a weapon because Valenzuela and Colon had apparently restrained him on a bed.

The material changes that these key witnesses would have had to make to their testimony in order to recount the incident without reference to the razor blade present the kind of “unreasonable difficulty” that, as we warned in O’Toole, jeopardizes the jury’s truth-seeking function and outweighs the need for collateral estoppel. Therefore, even if the jury necessarily decided that defendant did not use or threaten to use the razor blade, the Appellate Division correctly determined that the doctrine does not apply.

m

The second issue in this appeal concerns the advocate-witness rule. Pursuant to that rule, a lawyer must withdraw from representation when it becomes apparent that she must testify on behalf of her own client (former Code of Professional Responsibility DR 5-102 [a] [22 NYCRR 1200.21 (a)]; Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7 [a] [current, similar provision]; see also People v Berroa, 99 NY2d 134, 140 [2002] [an attorney “should not continue to serve as an advocate when it is obvious that the lawyer will be called as a witness on behalf of the client”]). The rule seeks to avoid “the unseemly circumstance of placing an attorney in a position in which he must argue the credibility of his own testimony” (Ellis v County of Broome, 103 AD2d 861, 862 [3d Dept 1984]), which may “confuse the factfinder and impair the fairness of the trial” (People v Townsley, 20 NY3d 294, 299 [2012]).

In Berroa, we held that a stipulation by defense counsel violated the advocate-witness rule and deprived defendant of his right to conflict-free counsel where the stipulation transformed the defendant’s advocate into an adverse witness and pitted counsel’s credibility against other witnesses (99 NY2d at 138) . Defendant’s trial counsel in Berroa was the only person who could impeach two key defense witnesses whose testimony deviated in substantial part from information they had provided to counsel before trial. Although the parties agreed to a stipulation in lieu of having counsel testify, we held that the stipulation exacerbated counsel’s conflict by “eviscerating the credibility of her client’s witnesses and his defense” (id. at 139) .

Defendant’s counsel was placed in a similarly untenablé position in this case when the People introduced counsel’s statement from arraignment. Anyone familiar with arraignment practices in New York City criminal courts understands the hurried nature of those proceedings and the likelihood, as occurred here, that defense counsel may appear on behalf of 30 defendants in one night. It is no surprise then that she mistakenly stated that defendant told her Valenzuela came after him with a razor blade instead of a knife. The prosecutor sought to use this statement to attack defendant’s credibility, and in doing so, caused defendant’s advocate to become his adversary. Indeed, defendant’s credibility was attacked by the one person in the courtroom whose job was to advocate for it.

The situation went from bad to worse when it became clear that the only way for defense counsel to rehabilitate her client’s credibility was to impugn her own, moments before she would argue for her client’s innocence in summation. Any way you look at it, defense counsel had no choice but to withdraw. In these unusual circumstances, we hold that the trial court should have granted counsel’s request to withdraw or declared a mistrial.

The People’s reliance on People v Brown (98 NY2d 226 [2002]) and People v Rivera (58 AD2d 147 [1st Dept 1977], affd 45 NY2d 989 [1978]) is misplaced. The statements admitted in those cases were made by defendants’ former attorneys and therefore did not involve the issue of whether a defendant’s current counsel must withdraw when her statements are inconsistent with the defendants’ testimony at trial. Unlike defense counsel in this case, the defendants’ trial attorneys in Brown and Rivera were not set up to attack their clients’ credibility or, by stipulation, their own.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Chief Judge Lippman and Judges Rivera, Stein and Fahey concur; Judge Abdus-Salaam taking no part.

Order reversed and a new trial ordered.


author: Stein, J.

text:
    [44 NE3d 915, 23 NYS3d 617]
    In the Matter of Ricardo Suarez et al., Appellants, v Melissa Williams et al., Respondents.
    Argued November 17, 2015;
    decided December 16, 2015

      POINTS OF COUNSEL

      Linda M. Campbell, Syracuse, for Ricardo Suarez and Laura Suarez, appellants.
    I. In custody cases between parent(s) and grandparent(s) when the child has resided with and been in the care and control of the grandparent(s) for 24 months or longer, section 72 (2) of the Domestic Relations Law provides a definition of “extraordinary circumstances” to enable grandparent(s) to establish standing. (Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of McGee v Korman, 70 NY2d 225; Matter of E.S. v P.D., 8 NY3d 150; Matter of Troiano v Marotta, 127 AD3d 877; Matter of Richardson v Ludwig, 126 AD3d 1546; Matter of Diane T. v Lydia Tamelka T, 121 AD3d 463; Commonwealth of the N. Mariana Is. v Canadian Imperial Bank of Commerce, 21 NY3d 55; Matter of Manouel v Board of Assessors, 25 NY3d 46; Matter of Wilson v McGlinchey, 2 NY3d 375; Matter of Fishburne v Teelucksingh, 34 AD3d 804.) II. Once “an extended disruption of custody” is demonstrated, which satisfies the extraordinary circumstances standing requirement, no additional proof is required for Family Court to then consider the child’s best interests. (Matter of Colon v Delgado, 106 AD3d 414; Matter of Ruiz v Travis, 84 AD3d 1242; Matter of DiBenedetto v DiBenedetto, 108 AD3d 531; Matter of Carton v Grimm, 51 AD3d 1111; Matter of Magana v Santos, 70 AD3d 1208; Matter of Curless v McLarney, 125 AD3d 1193; Matter of Battisti v Battisti, 121 AD3d 1196; Matter of Aida B. v Alfredo C., 114 AD3d 1046; Matter of Bevins v Witherbee, 20 AD3d 718; Matter of Tucker v Martin, 75 AD3d 1087.) III. Psychological trauma to the child resulting from a change in custody is a factor to be considered not in an “extraordinary circumstances” determination but rather in determining the best interest of the child. (Matter of Bennett v Jeffreys, 40 NY2d 543; Debra H. v Janice R., 14 NY3d 576.)

      Patrick J. Haber, Syracuse, Attorney for the Child.
    I. In custody cases between parent(s) and grandparent(s) when the child has resided with and been in the care and control of the grandparent(s) for 24 months or longer, section 72 (2) of the Domestic Relations Law provides a definition of “extraordinary circumstances” to enable grandparent(s) to establish standing. (Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of McGee v Korman, 70 NY2d 225; Matter of E.S. v P.D., 8 NY3d 150; Matter of Troiano v Marotta, 127 AD3d 877; Matter of Richardson v Ludwig, 126 AD3d 1546; Matter of Diane T. v Lydia Tamelka T., 121 AD3d 463; Gawron v Town of Cheektowaga, 117 AD3d 1410; Matter of Fishburne v Teelucksingh, 34 AD3d 804; Matter of Bailey v Carr, 125 AD3d 853; Matter of Carton v Grimm, 51 AD3d 1111.) II. Once “an extended disruption of custody” is demonstrated, the extraordinary circumstances standing requirement is satisfied; thus, no additional proof is required to consider the child’s best interests. (Matter of Colon v Delgado, 106 AD3d 414; Matter of Ruiz v Travis, 84 AD3d 1242; Matter of DiBenedetto v DiBenedetto, 108 AD3d 531; Matter of Carton v Grimm, 51 AD3d 1111; Matter of Magana v Santos, 70 AD3d 1208; Matter of Curless v McLarney, 125 AD3d 1193; Matter of Battisti v Battisti, 121 AD3d 1196; Matter of Aida B. v Alfredo C., 114 AD3d 1046; Matter of Bevins v Witherbee, 20 AD3d 718; Matter of Tucker v Martin, 75 AD3d 1087.) III. Psychological trauma to the child resulting from a change in custody is a factor to be considered not in an “extraordinary circumstances” determination but rather in determining the best interest of the child. (Matter of Bennett v Jeffreys, 40 NY2d 543.)

      Melvin & Melvin, PLLC, Syracuse (Christopher M. Judge and Elizabeth A. Genung of counsel), for Melissa Williams, respondent.
    I. The Appellate Division’s decision does not render section 72 of the Domestic Relations Law unconstitutional, nor does it diminish section 72 (2) to “mere guidance”; rather, it properly interpreted an “extended disruption of custody” in accordance with Bennett v Jeffreys. (Matter of Bennett v Jeffreys, 40 NY2d 543; Stanley v Illinois, 405 US 645; Matter of Ferguson v Skelly, 80 AD3d 903, 16 NY3d 710; Matter of Male Infant L., 61 NY2d 420; Matter of Howard v McLoughlin, 64 AD3d 1147; Matter of Hyde v King, 47 AD3d 813; Matter of Diane FF. v Faith GG., 291 AD2d 671; Matter of Dickson v Lascaris, 53 NY2d 204; Matter of Tolbert v Scott, 15 AD3d 493; Tauza v Susquehanna Coal Co., 220 NY 259.) II. The Appellate Division did not abuse its discretion as a matter of law in holding that appellants had not proved the existence of extraordinary circumstances as there had not been a prolonged separation of parent and child, relinquishment of care and control, or gross misconduct evidencing utter indifference or irresponsibility.
      (Matter of Louise E.S. v W. Stephen S., 64 NY2d 946; Matter of De Zimm v Connelie, 64 NY2d 860; Priebe v Priebe, 55 NY2d 997; Matter of Sullivan v Sullivan, 58 NY2d 642; Glenbriar Co. v Lipsman, 5 NY3d 388; Alpert v 28 Williams St. Corp., 63 NY2d 557; Cahen v Boyland, 1 NY2d 8; Matter of Social Investigator Eligibles Assn. v Taylor, 268 NY 233; Matter of Albano v Kirby, 36 NY2d 526; Matter of Jenny L.S. v Nicole M., 39 AD3d 1215.) III. The decision does not conflict with section 72 (2) decisions in other Departments, and is, in fact, in accord with them. (Matter of Fishburne v Teelucksingh, 34 AD3d 804; Matter of Bailey v Carr, 125 AD3d 853; Matter of Rush v Roscoe, 99 AD3d 1053; Matter of Carton v Grimm, 51 AD3d 1111; Matter of Traci M.S. v Darlene C., 37 AD3d 1083; Matter of Gilchrest v Patterson, 55 AD3d 833; C.F.B. v T.B., 9 Misc 3d 1105[A], 2005 NY Slip Op 51412[U]; Matter of Tucker v Martin, 75 AD3d 1087; Matter of Curless v McLarney, 125 AD3d 1193.) IV. While psychological trauma grave enough to threaten the child’s destruction may be considered an extraordinary circumstance, the Appellate Division did not hold that such is required to prove extraordinary circumstances. (Matter of Jenny L.S. v Nicole M., 39 AD3d 1215; Matter of Michael G.B. v Angela L.B., 219 AD2d 289; Matter of Jody H. v Lynn M., 43 AD3d 1318; Matter of Vincent A.B. v Karen T., 30 AD3d 1100, 7 NY3d 711; Matter of Cote v Brown, 299 AD2d 876; Matter of Tucker v Martin, 75 AD3d 1087; Matter of Burghdurf v Rogers, 233 AD2d 713; Matter of Bailey v Carr, 125 AD3d 853; Matter of Black v Johnson, 251 AD2d 825; Matter of Lynda A.H. v Diane T.O., 243 AD2d 24, 92 NY2d 811.)
   OPINION OF THE COURT

Stein, J.

This custody dispute between a child’s mother and paternal grandparents concerns the interpretation and application of Domestic Relations Law § 72 (2) and this Court’s decision in Matter of Bennett v Jeffreys (40 NY2d 543 [1976]). We hold that grandparents may demonstrate standing to seek custody based on extraordinary circumstances where the child has lived with the grandparents for a prolonged period of time, even if the child had contact with, and spent time with, a parent while the child lived with the grandparents. Hence, we reverse and remit to the Appellate Division for consideration of issues raised, but not reached, by that Court.

L

The child at issue here (born 2002) lived with his paternal grandparents, beginning when he was less than 10 days old and continuing until he was almost 10 years old. The child’s father moved out of state in 2004 and has had visitation since then. The child’s mother lived approximately 12 miles from the grandparents for the child’s first few years, until the grandparents moved the mother (and her daughters from a previous relationship) into a trailer that the grandparents purchased and situated in a trailer park across the street from their residence, so she would be close to the child. In a 2006 proceeding in which the grandparents were not involved, the child’s parents obtained a consent order awarding the parents joint legal custody, with primary physical custody to the mother. Nevertheless, the reality of the family’s situation did not change; the child continued to reside with the grandparents. Also in 2006, the grandparents moved to an adjoining county. Due to the distance between their homes, the mother had less contact with the child until late 2008, when the grandparents again helped her move closer to them. The grandparents evidently kept the mother informed of the child’s activities almost daily. In addition, the mother saw the child regularly including, at times, weekly overnight visits and vacations. In 2010, the mother began a relationship with a new boyfriend, and they gradually began making plans to live together. In 2012, after the father sought custody from the mother and a termination of his child support payments to her, she refused to return the child to the grandparents after a visit, relying on the 2006 custody order granting her primary physical custody. At that time, the mother told the grandparents that they had had the child for many years, it was her “turn now,” and they could no longer see him.

As a result, the grandparents commenced this proceeding seeking primary physical custody of the child. Following a 10-day hearing, Family Court found that the mother was generally not credible and that “the grandparents’ version of where the child lived since birth is the substantiated and more accurate representation of reality” (50 Misc 3d 990, 999 [2013]). The court found that there had been an extended disruption of custody between the mother and the child, and that the mother voluntarily relinquished care and control of him to the grandparents — through three written documents and through her behavior — and concluded that this amounted to extraordinary circumstances. The court then considered the child’s best interest and granted joint custody to the grandparents and the father, with primary physical custody to the grandparents and visitation to each parent.

The Appellate Division reversed and dismissed the grandparents’ petition (128 AD3d 20 [4th Dept 2015]). Specifically declining to disturb Family Court’s credibility determinations, the Appellate Division found the situation to be akin to joint custody, with the grandparents having primary physical custody and the mother having visitation. Nevertheless, the Court held that the grandparents failed to demonstrate extraordinary circumstances, in light of the mother’s presence in the child’s life, even though he was primarily living with the grandparents. Thus, the Court concluded that the grandparents lacked standing to seek custody and dismissed their petition. This Court granted the grandparents leave and a stay pending appeal (25 NY3d 1063 [2015]).

IL

In the seminal case of Matter of Bennett v Jeffreys, we created a two-prong inquiry for determining whether a nonparent may obtain custody as against a parent (see 40 NY2d at 546-548). First, the nonparent must prove the existence of “extraordinary circumstances” such as “surrender, abandonment, persisting neglect, unfitness, and unfortunate or involuntary disruption of custody over an extended period of time” (id. at 546), “or other like extraordinary circumstances” (id. at 544). If extraordinary circumstances are established such that the non-parent has standing to seek custody, the court must make an award of custody based on the best interest of the child (see id. at 548).

Consistent with that case, Domestic Relations Law § 72 (2) contains a specific example of extraordinary circumstances. Originally, Domestic Relations Law § 72 addressed only grandparent visitation. However, in recognition of the important role of grandparents and the increasing number of grandparents raising their grandchildren, the legislature amended the statute in 2003 to include a second subdivision, pertaining to custody (see L 2003, ch 657, § 2; Matter of Carton v Grimm, 51 AD3d 1111, 1112 n [3d Dept 2008], lv denied 10 NY3d 716 [2008]). That subdivision provides that “[w]here a grandparent . . . of a minor child . . . can demonstrate to the satisfaction of the court the existence of extraordinary circumstances, such grandparent . . . may apply to family court [for custody],” and the court “may make such directions as the best interests of the child may require, for custody rights for such grandparent ... in respect to such child. An extended disruption of custody, as such term is defined in this section, shall constitute an extraordinary circumstance” (Domestic Relations Law § 72 [2] [a] [emphasis added]). The statute then defines “extended disruption of custody” to

“include, but not be limited to, a prolonged separation of the respondent parent and the child for at least [24] continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the petitioner grandparent or grandparents, provided, however, that the court may find that extraordinary circumstances exist should the prolonged separation have lasted for less than [24] months” (Domestic Relations Law § 72 [2] [b]).

The legislative intent, as stated in the bill enacting this amendment, was “to provide guidance regarding the ability of grandparents to obtain standing in custody proceedings involving their grandchildren,” but was “in no way intended to limit the state of the law as it relates to the ability of any third party to obtain standing in custody proceedings” against a birth parent (L 2003, ch 657, § 1). The sponsors’ memoranda articulate the purpose of the bill as being “[t]o define an extraordinary circumstance with respect to the legal rights of certain grandparents who wish to petition the court for custody of their grandchildren” (Senate Introducer Mem in Support, 2003 NY Senate Bill S4224A; Assembly Sponsor’s Mem, 2003 NY Assembly Bill A8302B; see Matter of Carton, 51 AD3d at 1113). The sponsors emphasized that the bill specifically states that it is not intended to overrule existing case law relating to third parties obtaining standing in custody cases (see Senate Introducer Mem in Support, 2003 NY Senate Bill S4224A; Assembly Sponsor’s Mem, 2003 NY Assembly Bill A8302B). In addressing the law as it existed before the amendment, the sponsors stated that the “[c]urrent statute does not specifically grant grandparents standing to petition the court for custody of their grandchildren [,] nor does [it] give specific guidance to the court in regard to extraordinary circumstances as they might apply to children who have resided with their grandparents” (Senate Introducer Mem in Support, 2003 NY Senate Bill S4224A; Assembly Sponsor’s Mem, 2003 NY Assembly Bill A8302B).

Although the mother contends otherwise, the statute is entirely consistent with Matter of Bennett v Jeffreys, in that it requires that grandparents prove the existence of extraordinary circumstances in order to demonstrate standing when seeking custody against a child’s parent. Indeed, the budget report on the bill indicates that it “simply clarifies in statute that grandparents specifically can petition for custody” (Budget Rep on Bills, Bill Jacket, L 2003, ch 657 at 5). Thus, the purpose of the statute is plain — it creates a clear path, or procedural mechanism, for grandparents to obtain standing when seeking custody (see Matter of E.S. v P.D., 8 NY3d 150, 157 [2007]; Matter of Wilson v McGlinchey, 2 NY3d 375, 380 [2004]; see also Debra H. v Janice R., 14 NY3d 576, 597 [2010]). The statute does not create new rights for grandparents, but merely clarifies a method by which grandparents may exercise those rights, and defines an alternative type of extraordinary circumstance applicable only to grandparents — specifically, an extended disruption of custody — in view of their special status (see Matter of Tolbert v Scott, 15 AD3d 493, 495-496 [2d Dept 2005] ).

III.

Domestic Relations Law § 72 (2) sets forth three “elements” required to demonstrate the extraordinary circumstance of an “extended disruption of custody,” specifically: (1) a 24-month separation of the parent and child, which is identified as “prolonged,” (2) the parent’s voluntary relinquishment of care and control of the child during such period, and (3) the residence of the child in the grandparents’ household. Regarding the third element, inasmuch as both Family Court and the Appellate Division found that the child primarily lived with the grandparents for almost 10 years, and that factual finding is supported by the record, we may not disturb it (see Matter of E.S., 8 NY3d at 158; Matter of Gabrielle HH., 1 NY3d 549, 550 [2003]). Consequently, only the first two elements are seriously in dispute here.

The mother argues that the separation of the parent and child must be nearly complete and that the parent must relinquish all care and control, with little or no contact between the parent and child, in order for the first two elements to be established. She contends that no prolonged separation occurred here because she had regular contact with the child. She also contends that she did not relinquish care and control because she cared for the child on regular visits, including overnights and vacations, and because the grandparents obtained, and acted with, her permission when making decisions about him.

Contrary to the mother’s contention, a lack of contact is not a separate element under the statute. Indeed, there is no explicit statutory reference to contact or the lack thereof. Rather, the quality and quantity of contact between the parent and child are simply factors to be considered in the context of the totality of the circumstances when determining whether the parent voluntarily relinquished care and control of the child, and whether the child actually resided with the grandparents for the required “prolonged” period of time. Indeed, some Appellate Division cases have identified a variety of factors for courts to consider in determining whether extraordinary circumstances exist, such as “the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the biological parent allowed such custody to continue without trying to assume the primary parental role” (Matter of Bevins v Witherbee, 20 AD3d 718, 719 [3d Dept 2005]; see Matter of Curless v McLarney, 125 AD3d 1193, 1195 [3d Dept 2015]; Matter of Aida B. v Alfredo C., 114 AD3d 1046, 1048 [3d Dept 2014]; Matter of Marcus CC. v Erica BB., 107 AD3d 1243, 1244 [3d Dept 2013], appeal dismissed 22 NY3d 911 [2013]; Matter of Michael G.B. v Angela L.B., 219 AD2d 289, 294 [4th Dept 1996]). All of these factors are components of the totality of the circumstances for the court to consider, and also relate to the enumerated elements under the statute.

It would be illogical to construe the statute to mean that, in order to establish an extended disruption of custody, the grandparent must demonstrate that the parent had no contact with the child for 24 months. If that were the case, the statute would be superfluous or redundant of the extraordinary circumstances specifically enumerated in Matter of Bennett v Jeffreys. Indeed, the level of contact between the parent and child is relevant to several different categories of extraordinary circumstances under that case. For example, Matter of Bennett v Jeffreys refers to abandonment as an extraordinary circumstance (see 40 NY2d at 546). Pursuant to Social Services Law § 384-b (5), abandonment occurs — in the context of a complete termination of parental rights — when a parent evinces an intent to forgo parental rights and obligations as manifested by a failure to visit the child and communicate with the child or guardian. This Court has held that, for purposes of determining whether extraordinary circumstances exist to demonstrate standing to seek custody of a child, the definition of abandonment does not differ from the traditional definition (see Matter of Dickson v Lascaris, 53 NY2d 204, 209 [1981]). Similarly, Matter of Bennett v Jeffreys refers to persistent neglect as a variety of extraordinary circumstances (see 40 NY2d at 546). Persistent neglect requires proof that the parent “failed either to maintain substantial, repeated and continuous contact with a child or to plan for the child’s future” (Matter of Ferguson v Skelly, 80 AD3d 903, 905 [3d Dept 2011] [emphasis added], lv denied 16 NY3d 710 [2011]; see Social Services Law § 384-b [7]). Thus, where a parent has no significant contact with his or her child for 24 months, the avenues of persistent neglect or abandonment presumably would be available under Matter of Bennett v Jeffreys, even without the benefit of Domestic Relations Law § 72 (2).

In view of the foregoing, if we interpret the definition of “extended disruption of custody” under Domestic Relations Law § 72 (2) to mean that the parent must not have had any contact, or at least any significant contact, with the child for at least 24 months, then this statutory ground of extraordinary circumstances would essentially be eviscerated, or at best redundant and unnecessary. This would contravene the legislative purpose, and would be contrary to the well-established rule that courts should not interpret a statute in a manner that would render it meaningless (see Matter of Brown v Wing, 93 NY2d 517, 523 [1999]; Matter of Industrial Commr. of State of N.Y. v Five Corners Tavern, 47 NY2d 639, 646-647 [1979]). Consequently, to give meaning to the separate statutory avenue of establishing standing, Domestic Relations Law § 72 (2) must be available for a grandparent even if the parent has had some contact with the child during the requisite 24-month period. To hold otherwise would not only conflict with the legislature’s intent, but would also deter grandparents from promoting a relationship between the parent and the child while the child resides with them, contrary to this state’s public policy of encouraging and strengthening parent-child relationships. While courts must determine on a case-by-case basis whether the level of contact between the parent and child precludes a finding of extraordinary circumstances, it is sufficient to show that the parent has permitted — as reflected in the statutory designation of the particular extraordinary circumstance at issue — an “extended disruption of custody” (Domestic Relations Law § 72 [2] [a] [emphasis added]).

For essentially the same reasons, a parent need not relinquish all care and control of the child. Even if the parent exercises some control over the child — for example during visitation — a parent may still, as a general matter, have voluntarily relinquished care and control of the child to the grandparent to the extent that the grandparent is, in essence, acting as a parent with primary physical custody. The key is whether the parent makes important decisions affecting the child’s life, as opposed to merely providing routine care on visits.

Here, the mother argues that the grandparents were only acting with her permission when making decisions regarding the child. She concedes that she signed three documents, each giving the grandparents permission to make such decisions, including medical and educational decisions, without any time limitation, but contends that the documents prove that she retained ultimate control over all decisions. Family Court concluded that the documents, and the mother’s conduct, showed that she relinquished her authority and responsibility to make the decisions. The Appellate Division, on the other hand, concluded that the grandparents relied on the mother’s permission (128 AD3d at 25). In our view, Family Court’s interpretation of the documents, and their implications here, is more accurate. The grandparents obtained the documents because there was no custody order giving the grandparents the legal right to make such decisions, although the child was in their physical custody a majority of the time, and they needed to be prepared for all types of situations. Nevertheless, the mother freely signed over virtually all decision-making rights indefinitely — she did not limit the permission to times when she was unavailable — demonstrating her intent that the grandparents “permanently assume the parental responsibility” of caring for the child (Matter of Michael G.B., 219 AD2d at 294).

As for the parties’ conduct, the grandparents spoke with the mother almost daily about the child. The mother claims that they did so to seek her permission before making decisions about the child. However, the evidence is more consistent with Family Court’s conclusion that the grandparents made all decisions about the child and merely kept the mother informed of the decisions that they had made or were about to make. For example, the mother and her boyfriend testified that, at least as early as 2011, she wanted to enroll the child in a school in the district where she lived, rather than the district of the grandparents’ residence. The grandparents desired to keep the child in their district, where he had always attended school. The mother did not make any change in the child’s school enrollment until the summer of 2012, after this proceeding had commenced. In addition, the mother could have expressly revoked her written permission, or specifically limited the authorization to making medical decisions in emergency situations, but she never did so. Instead, her conduct, and that of the grandparents, supports Family Court’s finding that “in reality [the mother] relinquished her parental control and decisionmaking authority in writing and in practice to the grandparents” (50 Misc 3d 990, 1006 [2013]).

Furthermore, while there arguably may have been a reason for the mother to refrain from seeking physical custody during the time that she was caring for her own ailing parents, that situation did not arise until 2006, several years after the child began living with the grandparents. Additionally, although one of the mother’s parents died and the other went into a nursing home in 2009, the mother allowed the grandparents to continue raising the child thereafter and she did not seek physical custody of him until 2012. No reasonable explanation was provided for her failure to attempt to gain physical custody after 2009 (see Matter of Michaellica Lee W., 106 AD3d 639, 639-640 [1st Dept 2013]).

In sum, the evidence more closely comports with Family Court’s finding that the mother voluntarily relinquished care and control of the child for more than 24 months, even though she had regular contact and visitation with him (see Matter of Curless, 125 AD3d at 1196; Matter of Battisti v Battisti, 121 AD3d 1196, 1197-1198 [3d Dept 2014]; see also Matter of Marcus CC., 107 AD3d at 1244). The mother allowed the grandparents to assume control over, and responsibility for the care of, the child while he resided with them for a prolonged period of years, during which she assumed the role of a noncustodial parent in virtually every way (see Matter of Traci M.S. v Darlene C., 37 AD3d 1083, 1084 [4th Dept 2007]). Where, as here, the mother has effectively transferred custody of the child to the grandparents for a prolonged period of time, the circumstances rise to the level of extraordinary, as required under our law to confer standing upon the grandparents to petition the courts to formally obtain legal custody.

We reiterate that the conferral of standing, through the demonstration of extraordinary circumstances, is only the first step of the inquiry where a nonparent seeks custody against a parent. The second step addresses the best interest of the child. Here, Family Court found that it was in the child’s best interest to remain in the primary physical custody of the grandparents. However, inasmuch as the Appellate Division did not reach that question, it must do so on remittal.

In conclusion, the grandparents established their standing to seek custody of the child by demonstrating extraordinary circumstances, namely an extended disruption of the mother’s custody, in accordance with Matter of Bennett v Jeffreys and Domestic Relations Law § 72 (2). Accordingly, the Appellate Division order should be reversed, without costs, and the matter remitted to that court for further proceedings in accordance with this opinion.

Chief Judge Lippman and Judges Pigott, Rivera, AbdusSalaam and Fahey concur.

Order reversed, without costs, and matter remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the opinion herein.

      . Although the father was regularly paying child support to the mother, she did not provide the grandparents with any money for the child’s care.

      . The father withdrew his custody petition against the mother and supported the grandparents’ petition.

      . To the extent the grandparents and attorney for the child argue that the Appellate Division decision could be read as finding the statute to be unconstitutional, we note that the statute’s constitutionality was not challenged in either that Court or Family Court. Moreover, our reading of the Appellate Division decision leads us to conclude that the constitutional issue was not addressed therein. Thus, that issue is not before us.

      . The mother also erroneously argues that the standard for extraordinary circumstances requires the parent to engage in gross misconduct or utter irresponsibility. This Court has used such language, but we did so in a case decided almost 20 years before Domestic Relations Law § 72 (2) was enacted. That case involved a mother who had turned her child over to potential adoptive parents after agreeing to an adoption — which would have resulted in a permanent termination of all parental rights — and, soon thereafter, changed her mind and tried to regain care and control of her child (see Matter of Male Infant L., 61 NY2d 420, 427 [1984]). The language requiring gross misconduct or utter irresponsibility should not be taken out of context to further heighten the standard for establishing standing in all nonparent custody cases, where the parents — although potentially being deprived of custody — otherwise retain their parental rights.

      . Here, the grandparents called the mother nearly every day to keep her updated on the child’s activities. They also brought the mother and her daughters on family vacations, invited them to family holiday gatherings, and relocated them twice. This conduct, primarily initiated by the grandparents, kept the mother in closer contact with the child. It would be incongruous to then deny the grandparents standing based on their efforts at facilitating that contact.

      . For purposes of determining extraordinary circumstances, this situation can be distinguished from those in which a parent has a compelling reason to allow a nonparent to assume custody for a more limited and defined period of time. For example, no extraordinary circumstances were found where a father asked a grandfather to assume custody while the father “got [his] life together,” after which the father completed substance abuse treatment, anger management, and parenting classes and obtained steady employment — all while continuously attempting to maintain contact with the children — before he tried to regain custody (see Matter of Ferguson v Skelly, 80 AD3d 903, 904-905 [3d Dept 2011], lv denied 16 NY3d 710 [2011]). Similarly, it may be necessary for a single parent who is enlisted in the military to cede custody while deployed. In such situations, a parent can enter into an agreement memorializing a period of temporary custody, or can include limiting language in written authorizations — unlike the authorizations here, which explicitly stated that they were “open and ongoing” and had “no expiration date.”


author: Chief Judge Lippman. Pigott, J.

text:
    [44 NE3d 930, 23 NYS3d 632]
    The People of the State of New York, Appellant, v Victor Soto, Respondent.
    Argued November 16, 2015;
    decided December 17, 2015

      POINTS OF COUNSEL

      Robert T Johnson, District Attorney, Bronx (Melanie A. Sarver, Rebecca L. Johannesen, Joseph N. Ferdenzi and Stanley R. Kaplan of counsel), for appellant.
    Nisi prius correctly-concluded that the out-of-court statement did not qualify as a declaration against penal interest because the declarant was not aware of her penal interests. (People v Settles, 46 NY2d 154; Chambers v Mississippi, 410 US 284; People v Brensic, 70 NY2d 9; People v Brown, 26 NY2d 88; People v Thomas, 68 NY2d 194; People v Maerling, 46 NY2d 289; People v Shortridge, 65 NY2d 309; People v Smith, 195 AD2d 112, 83 NY2d 876; People v Robinson, 267 AD2d 336; Chapman v California, 386 US 18.)

      Robert S. Dean, Center for Appellate Litigation, New York City (Mark W. Zeno of counsel), for respondent.
    I. The Appellate Division correctly ruled that the unavailable witness’s written statement to a defense investigator — that she was the driver at the time of the accident and fled the scene before notifying authorities because she feared she would “get into trouble” — should have been admitted as a declaration against interest, because her knowledge that the statement was against interest was adequately established and the statement was corroborated by independent proof of its truth; alternatively, even if the knowledge-of-adversity element of the declaration-against-interest exception was not met, the statement’s exclusion deprived respondent of his constitutional rights to present a defense (US Const Amends V, XIV; NY Const, art I, § 6; Chambers v Mississippi, 410 US 284 [1973]). (People v Maerling, 46 NY2d 289; People v Brensic, 70 NY2d 9; People v Settles, 46 NY2d 154; People v Shortridge, 65 NY2d 309; People v Shabazz, 22 NY3d 896; People v Darrisaw, 206 AD2d 661; People v Brown, 26 NY2d 88; Rosenberg v Majestic Limousine Corp., 298 AD2d 243; Jamison v Walker, 48 AD2d 320; Smith v St. Lawrence County Natl. Bank, 18 AD2d 1042.) II. The prosecutor’s refusal to grant immunity to a witness who was prepared to offer testimony that she — not respondent— was driving the car and caused the accident was an abuse of discretion and deprived respondent of his due process right to a fair trial, where the witness’s testimony was critical to the defense, the prosecutor would only have been immunizing the witness from prosecution for a traffic offense, and the prosecutor offered no other reason for his refusal (US Const Amends V, VI, XIV; NY Const, art I, § 6; CPL 50.30). (People v Adams, 53 NY2d 241; People v Owens, 63 NY2d 824; People v Priester, 98 AD2d 820; People v Shapiro, 50 NY2d 747; People v Ballard, 167 AD2d 895; Delaware v Van Arsdall, 475 US 673; People v Allen, 50 NY2d 898; Chapman v California, 386 US 18; People v Crimmins, 36 NY2d 230; People v Schaeffer, 56 NY2d 448.)
   OPINION OF THE COURT

Chief Judge Lippman.

The central issue in this case is whether an unavailable witness’s statement to a defense investigator — that she, not defendant, was the driver at the time of the accident and that she fled the scene — should have been admitted as a declaration against interest. Because the witness was aware at the time she made the statement that it was against her interest, the four prongs of the test described in People v Settles (46 NY2d 154 [1978]) were met and the statement should have been admitted as a declaration against interest.

Around midnight on July 11, 2010, police officers were called to the scene of an automobile accident in the Bronx. A witness who lived down the street from where the accident took place stated that, while he was sitting on his front porch, he saw defendant driving at 15 miles per hour up and down the block before colliding with a parked vehicle. The witness saw no one else in the car with defendant and as the witness approached defendant’s car, he found defendant in the driver’s seat. When police arrived, they detected alcohol on defendant’s breath, noticed his slurred speech, and arrested defendant for driving while intoxicated. A breath analysis test administered at the police station revealed defendant’s blood alcohol level to be .22%. At the station, defendant stated, “I started drinking when I got lost. I f-— up. I couldn’t drive for s — .”

Lamar Larson, who worked with defendant as a New York City bus driver, testified at trial that he chanced upon defendant at the Pelham Bay Diner near the bus depot in the Bronx at 11:45 p.m. that same night. Larson went to the diner to pick up something to eat for his night shift when he saw defendant in his car with a young woman inside. The woman was in the driver’s seat and defendant was in the passenger seat. During their brief conversation, Larson noticed that defendant was slurring his speech and was drunk. Larson leaned into the window and said to the young woman, “[m]ake sure he gets home, please,” and the woman promised that she would. Larson saw the woman drive out of the parking lot with defendant beside her in the passenger seat.

Two weeks after the accident, a young woman by the name of Janny Hunt told defendant’s investigator that she was the driver of the car at the time of the accident. Hunt was 19 years old at the time, had no criminal history, and possessed only a learner’s permit. Hunt met defendant that day on the bus he drove and they planned to go out that night. Defendant picked up Hunt in his car and they went to the diner at which point Hunt agreed to drive so that defendant could have a few drinks. As they were leaving the diner, Hunt recounted meeting defendant’s friend Larson in the parking lot and promising to drive defendant home safely. On the way home, Hunt took a turn “too fast” and hit the parked car. Defendant yelled and cursed at Hunt, who “got scared” because “[i]t was late” and her “parents didn’t know [she] was [out] with [defendant].” Hunt “said to [defendant], T have to go, I’m sorry. I can’t talk to you now.’ ’’According to Hunt, “[defendant] was busy looking at his car and he waved [her] to leave.” Hunt took a cab home. About a week later, Hunt ran across defendant on the bus and he told her that he had been arrested because they thought he had been driving the car. She agreed to assist him.

While Janny Hunt recounted the events leading up to the accident, the investigator took notes. After the conversation, the investigator asked Hunt if she would sign the notes as her own words. Hunt then expressed concern that “she would potentially get in trouble for the things that she was saying” about the accident. She “was concerned about her parents . . . fin[d]ing out about the accident because she was in the car” and “wasn’t driving her own car.” According to the investigator, Hunt asked “again and again” if the investigator was a lawyer, and asked to be put in touch with a lawyer when the investigator could not answer Hunt’s questions. The investigator did not tell Hunt “anything about the specific trouble she might get into.” Despite her concerns, Hunt reviewed and signed the written statement.

When trial commenced, defense counsel indicated that he would call Hunt as a witness. Because her testimony could qualify as an admission to leaving the scene of an accident and traffic violations, the court appointed an attorney for Hunt. Defense counsel asked the People to grant Hunt immunity should she invoke her right to remain silent, a request the People refused. After the close of the People’s case, Hunt’s attorney invoked the Fifth Amendment on her behalf. After being refused immunity, defense counsel moved to dismiss the case. The court denied the motion.

Defense counsel then requested that Hunt’s statement be admitted as a declaration against interest. The court ordered a hearing outside the presence of the jury, at which the investigator who took Hunt’s statement testified. Following the hearing, the court remarked that whether a statement may be admitted as a declaration against interest “depends upon the assurance of reliability that comes from the person’s awareness that what they are saying could get them in trouble [with] the law.” The court “[did] not believe that [Hunt], either at the time she made it or even immediately following, assuming that that’s considered contemporaneous, was aware that her declarations could expose her to prosecution for a traffic offense.” Finding that the declarant did not give “any expression of that awareness until after the statement [was] given,” the court concluded that the statement was inadmissible as a declaration against interest. The court further held that “the interest which the declaration compromises must be one of sufficient magnitude or consequence to the declarant to all but rule out any motive to falsify,” relying on People v Maerling (46 NY2d 289, 298 [1978]), and determined that Hunt’s minor violation, in contravention of Vehicle and Traffic Law § 600, did not qualify.

The jury convicted defendant of aggravated driving while intoxicated and driving while intoxicated. The Appellate Division reversed and ordered a new trial, holding that the declarant’s

“expressions, at the time of or immediately after her statement, of apprehension that she could get in trouble for her conduct, including repeated inquiries about consulting with a lawyer, sufficed to satisfy the requirement that ‘the declarant must be aware at the time of its making that the statement was contrary to his [or her] penal interest’ ” (113 AD3d 153, 161 [2013]).

Other evidence assured the reliability of Hunt’s declaration inasmuch as Larson testified to seeing Hunt driving defendant home 15 minutes before the accident.

The dissenters would have affirmed the conviction on the basis that Hunt was not aware, at the time she made the declaration to the investigator, that her statement “was adverse to her penal interest” and “the statement was not sufficiently reliable” (113 AD3d at 162-163 [Clark, J., dissenting]). The dissenters also found the statement untrustworthy because “it involves the potential exposure to a minor traffic infraction and, unlike the situation where a defendant confesses to a violent crime, the penal consequences resulting from the statement are not obvious, especially to a 19 year old with no criminal history” (id. at 164-165). A dissenting Justice of the Appellate Division granted the People leave to appeal (2014 NY Slip Op 63495[U] [1st Dept 2014]).

The declaration-against-interest exception to the hearsay rule “flows from the fact that a person ordinarily does not reveal facts that are contrary to his own interest” unless those facts are true (Maerling, 46 NY2d at 295; People v Brensic, 70 NY2d 9, 14 [1987]). A statement qualifies as a declaration against interest if four elements are met: (1) the declarant is unavailable to testify as a witness; (2) when the statement was made, the declarant was aware that it was adverse to his or her penal interest; (3) the declarant has competent knowledge of the facts underlying the statement; and (4) supporting circumstances independent of the statement itself attest to its trustworthiness and reliability (People v Settles, 46 NY2d at 167).

Here, the first and third factors are not in dispute. Hunt was unavailable to testify because she had invoked her Fifth Amendment right to remain silent, and the People refused to grant her immunity, despite defense requests. The third factor was met because Hunt would have had direct knowledge as to whether she was driving the vehicle at the time of the accident. The parties’ arguments on appeal focus on the second and fourth elements for admissibility, namely, whether Hunt was aware that the statement was against her penal interest at the time she made it and whether the statement was sufficiently reliable.

As the Appellate Division appropriately concluded, the second factor was satisfied. Seconds after she made the statement to the defense investigator, Hunt asked if she could get into trouble and asked for an attorney. Only the most constricted reading of the contemporaneity requirement could support excluding Hunt’s statement.

The trial court failed to apply the proper standard when it ruled that the statement was not sufficiently against Hunt’s penal interest. We have never held, as the trial court concluded, that the declaration-against-interest exception is limited to serious penal consequences. Rather, until 1970, when this Court decided People v Brown (26 NY2d 88 [1970]), the converse was true — only declarations against pecuniary or proprietary interests were admissible. Although leaving the scene of an accident that caused property damage constitutes a mere traffic violation, there is no requirement that a statement against penal interest involve a particularly serious crime (see Basile v Huntington Util. Fuel Corp., 60 AD2d 616, 617 [2d Dept 1977] [admitting to reckless driving sufficient]). Moreover, the record here is replete with evidence regarding Hunt’s awareness of the potential criminality of her actions; Hunt verbalized her concern that she would get in “trouble” as a result of her actions of driving the vehicle during the accident and fleeing the scene, and she repeatedly requested legal advice (see People v Fields, 66 NY2d 876, 877 [1985]). That Hunt also worried how her parents would react further demonstrates her understanding of the consequences, rather than exhibits her lack of comprehension.

The fourth factor was also satisfied because Lamar Larson’s testimony corroborated Hunt’s statement. In Settles, concerned with the possibility that someone might fabricate a declaration against interest, this Court held that, before a declaration against interest is admissible, “there must be some evidence, independent of the declaration itself, which fairly tends to support the facts asserted therein” (Settles, 46 NY2d at 168). Statements offered against the defendant are “subjected to even more exacting standards” and are admissible only when “the interest compromised is of sufficient magnitude or consequence to the declarant to all but rule out any motive to falsify” (Brensic, 70 NY2d at 14-15 [internal quotation marks and citation omitted]).

By contrast, declarations that exculpate the defendant, as here, are subject to a more lenient standard (Brensic, 70 NY2d at 15). In such circumstances, a defendant need not show that the penal consequences to the declarant were of such magnitude that they “all but rule out any motive to falsify” (id.; Maerling, 46 NY2d at 298). Rather, “[s]upportive evidence is sufficient if it establishes a reasonable possibility that the statement might be true” (Settles at 169-170). We explained that even “[Circumstances of seeming indifference” that “harmonize” the statement may be sufficient to “furnish the necessary link” (id. at 169). In addition, it is irrevelant whether the court believes the statement to be true: “[i]f the proponent of the statement is able to establish this possibility of trustworthiness, it is the function of the jury alone to determine whether the declaration is sufficient to create reasonable doubt of guilt” (id. at 170).

Larson said he saw a young woman driving defendant’s car shortly before the accident occurred. That defendant was seen driving the car at the time of the accident presents a credibility issue for the jury, as this Court made clear in Settles (id.). Further, defendant and Hunt had no previous relationship that would provide Hunt with a motive to fabricate (see Brensic, 70 NY2d at 25). Under the circumstances presented here, the error was not harmless.

In light of the foregoing, we need not reach defendant-respondent’s other contentions.

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

Pigott, J.

(dissenting). Because there is record support for the trial court finding that declarant, Janny Hunt, was unaware that her statement was against her penal interest at the time it was made, I dissent and would reverse the order of the Appellate Division.

Defendant, who was employed as a city bus driver, was arrested and charged with four counts of driving while intoxicated after defendant’s car struck a parked car. A witness at the scene called 911 and approached the car within seconds of the accident. At that point, the witness saw defendant “dancing” in the driver’s seat with the radio turned up. Two weeks later, defendant encountered Hunt on a city bus and lamented that he had been arrested for driving while intoxicated. According to Hunt, defendant asked her if she could “help him out.” Hunt agreed to do so by giving a statement to defendant’s investigator. In that statement, Hunt claimed that it was she, and not defendant, who was driving defendant’s car at the time of the accident.

Hunt refused to testify at trial, citing Fifth Amendment concerns. Defense counsel requested that Hunt’s hearsay statement to the investigator be introduced in evidence as a declaration against penal interest. At the court’s direction, defense counsel called the private investigator to authenticate Hunt’s statement. The investigator testified that she did not apprise Hunt of the consequences of her statement because the investigator herself was unaware of what penal consequences, if any, Hunt faced as a result of her admissions. In her statement, Hunt claimed that she left the scene of the accident because she did not want her parents to know that she was with defendant. The statement indicates that Hunt was concerned only about what her parents would think. Significantly, as the investigator’s hearing testimony bears out, it was not until after Hunt signed her statement that she asked whether she could get in trouble for leaving the scene of the accident and reiterated her concern about her parents finding out that she was driving defendant’s car.

During cross-examination, the investigator testified that her conversation with Hunt followed this progression: (1) Hunt spoke generally about the accident; (2) the investigator asked if she could write it down; (3) Hunt signed the statement; and (4) after Hunt signed the statement, Hunt had some questions about what could happen to her. The investigator specifically explained that “[w]e went over [the statement] together and she signed it. At the end, she asked me a couple of questions that I did not know how to answer. I said to her she could speak to a lawyer.”

On redirect examination, the investigator testified that “at the beginning of the statement, no she did not express any concerns. They came out at the end” (emphasis supplied). The investigator explained that Hunt “asked if she could get in trouble for the accident” and stated that “she was concerned about her parents . . . fin[d]ing out about the accident because she was in the car. . . . And just generally like how much trouble [sjhe can get into” (emphasis supplied).

The trial court properly ruled that Hunt was not aware that the statement was against her penal interest at the time it was made. Our holding in People v Settles (46 NY2d 154 [1978]) concerning the “contemporaneous” requirement is dispositive: “when the statement [is] made the declarant must be aware that it [is] adverse to his [or her] penal interest” (id. at 167 [emphasis supplied]). This awareness is premised on the conclusion that any reasonable person would have known at the time the statement was made that it was against his or her penal interest (see People v Thomas, 68 NY2d 194, 199-200 [1986]).

Hunt admitted to committing a minor traffic infraction, i.e., leaving the scene of a property damage accident (see Vehicle and Traffic Law § 600 [1] [a]), while defendant, a city bus driver whose employment was in jeopardy, was facing four counts of driving while intoxicated. There is no indication from either the content of Hunt’s statement or the investigator’s testimony that Hunt was even remotely concerned about the penal consequences of her statement. It is this “contemporaneousness” factor that renders a declaration against penal interest reliable. The trial court deemed Hunt’s hearsay statement to be unreliable precisely because she was not aware of the penal consequences of her statement when it was made. In my view, there was no basis for the Appellate Division, which deemed this particular factor “more problematic” than the others (113 AD3d 153, 160 [1st Dept 2013]), to disturb the trial court’s determination that Hunt’s statement did not meet the contemporaneousness requirement.

Judges Rivera, Abdus-Salaam, Stein and Fahey concur; Judge Pigott dissents in an opinion.

Order affirmed.

       The majority of the Appellate Division so found, based upon the investigator’s direct testimony.

       This is what the dissent at the Appellate Division determined (113 AD3d 153, 163 [1st Dept 2013, Clark, J., dissenting]), as do I. The majority at the Appellate Division — like the majority here — misread the transcript.