author: Read, J.

text:
    [852 NE2d 138, 819 NYS2d 215]
    In the Matter of the Estate of George J. Ferrara, Deceased. Salvation Army, Appellant; Dominick Ferrara et al., Respondents.
    Argued June 1, 2006;
    decided June 29, 2006

      POINTS OF COUNSEL

      Cadwalader, Wickersham & Taft LLP, New York City (.Edwin David Robertson and Kathyrn E Shreeves of counsel), for appellant.
    I. An agent acting under a short form power of attorney bears the burden of proof that the agent’s self-dealing was free from fraud and undue influence. (Mantella v Mantella, 268 AD2d 852; Matter of Naumoff, 301 AD2d 802, 100 NY2d 534; Semmler v Naples, 166 AD2d 751, 77 NY2d 936; Matter of Roth, 283 AD2d 504; Matter of De Belardino, 77 Misc 2d 253, 47 AD2d 589; Matter of Iannone, 104 Misc 2d 5; Matter of Gordon v Bialystoker Ctr. & Bikur Cholim, 45 NY2d 692; Ten Eyck v Whitbeck, 156 NY 341; Cowee v Cornell, 75 NY 91; Sepulveda v Aviles, 308 AD2d 1.) II. The 1996 amendments to the General Obligations Law did not overturn long-established New York precedent placing the burden of proof on the agent. (Matter of Clinton, 1 Misc 3d 913[A], 2004 NY Slip Op 50056[U]; Matter of Gershenoff, 2 Misc 3d 847, 17 AD3d 243; Mantella v Mantella, 268 AD2d 852.) III. An agent who makes gifts to himself is not relieved from the duty to act in the best interest of the principal. (Matter of Breen v New York Fire Dept. Pension Fund, 299 NY 8; Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60; Matter of Gordon v Bialystoker Ctr. & Bikur Cholim, 45 NY2d 692; Cowee v Cornell, 75 NY 91; Ten Eyck v Whitbeck, 156 NY 341; Matter of Clinton, 1 Misc 3d 913[A], 2004 NY Slip Op 50056[U]; Matter of Gershenoff, 2 Misc 3d 847; Mantella v Mantella, 268 AD2d 852.)

      Bashian & Farber, LLP, White Plains (Annette G. Hasapidis and Gary E. Bashian of counsel), for respondents.
    I. Even if a “best interest” of the principal standard applies to the supplemental powers provision of the General Obligations Law, respondents acted in decedent’s best interests when they carried out his express wishes to “make gifts to themselves without limitation.” (Lamdin v Broadway Surface Adv. Corp., 272 NY 133; Cymbol v Cymbol, 122 AD2d 771; Zaubler v Picone, 100 AD2d 620; Bradford Co. v Dunn, 250 NY 461; Mercury Bay Boating Club v San Diego Yacht Club, 76 NY2d 256; Matter of Manning v Glens Falls Natl. Bank & Trust Co., 265 AD2d 743.) II. The plain language of the supplemental powers provision of the General Obligations Law, read in pari materia with the other provisions of that statute, permits a principal to authorize his agent to make gifts to himself. (People v Owusu, 93 NY2d 398; We’re Assoc. Co. v Cohen, Stracher & Bloom, 65 NY2d 148.) III. An agent acting under a statutory short form power of attorney need only prove that the power of attorney was valid. He is not required to prove that the power of attorney was not the product of undue influence in the absence of a confidential relationship. Further, appellant presented no evidence to justify a review of the circumstances preceding the creation of this agency relationship under a clear and convincing evidence standard. (Semmler v Naples, 166 AD2d 751; Matter of De Belardino, 77 Misc 2d 253; Mantella v Mantella, 268 AD2d 852; Matter of Iannone, 104 Misc 2d 5; Matter of Gordon v Bialystoker Ctr. & Bikur Cholim, 45 NY2d 692; Ten Eyck v Whitbeck, 156 NY 341; Cowee v Cornell, 75 NY 91; Hennessey v Ecker, 170 AD2d 650; Matter of Bumbaca, 182 AD2d 756; Matter of Connelly, 193 AD2d 602.) IV The Salvation Army presented no evidence that the power of attorney was the product of undue influence and never disputed that the hearing was limited to ascertaining the validity of the power of attorney. (Matter of Walther, 6 NY2d 49; Children’s Aid Socy. of City of N.Y. v Loveridge, 70 NY 387; Matter of Banks, 11 AD3d 307.) V Even if respondents bore the burden of proving that the power of attorney was not the product of undue influence, they met that burden with expert medical testimony that decedent was competent and the notary attorney’s testimony that decedent executed the instrument under circumstances showing no indicia of coercion. (Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139; Schou v Whiteley, 9 AD3d 706.)

      Eliot Spitzer, Attorney General, New York City (Mariya S. Treisman, Caitlin J. Halligan, Michelle Aronowitz and Gerald A. Rosenberg of counsel), in his statutory capacity under EPTL article 8.
    I. An agent authorized to make gifts pursuant to a short form power of attorney has a fiduciary duty to the principal and may make gifts only for purposes he reasonably deems to be in the best interest of the principal. (Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205; Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86; Mantella v Mantella, 268 AD2d 852; Moglia v Moglia, 144 AD2d 347; Semmler v Naples, 166 AD2d 751; Matter of De Belardino, 77 Misc 2d 253, 47 AD2d 589; Lamdin v Broadway Surface Adv. Corp., 272 NY 133; Seligman v Friedlander, 199 NY 373.) II. Where the validity of a power of attorney is challenged because of undue influence or fraud, courts must consider whether the nature of the relationship or the circumstances of any transaction warrant shifting the burden to the attorney-in-fact to prove freedom from fraud, deception, or undue influence. (Matter of Greiff, 92 NY2d 341; Ten Eyck v Whitbeck, 156 NY 341; Matter of Gordon v Bialystoker Ctr. & Bikur Cholim, 45 NY2d 692; Sepulveda v Aviles, 308 AD2d 1; Mantella v Mantella, 268 AD2d 852; Semmler v Naples, 166 AD2d 751; Matter of Naumoff, 301 AD2d 802; Matter of Putnam, 257 NY 140; Matter of Connelly, 193 AD2d 602.)
   OPINION OF THE COURT

Read, J.

Article 5, title 15 of the General Obligations Law prescribes what a statutory short form power of attorney must contain, specifies the powers that the form may authorize and defines their scope. On this appeal, we hold that an agent acting under color of a statutory short form power of attorney that contains additional language augmenting the gift-giving authority must make gifts pursuant to these enhanced powers in the principal’s best interest.

I.

On June 10,1999, decedent George J. Ferrara, a retired stockbroker who was residing in Florida at the time, executed a will “mak[ing] no provision ... for any family member ... or for any individual person” because it was his “intention to leave [his] entire residuary estate to charity.” Accordingly, in the same instrument he bequeathed his estate to a sole beneficiary, the Salvation Army, “to be held, in perpetuity, in a separate endowment fund to be named the ‘GEORGE J. FERRARA MEMORIAL FUND’ with the annual net income therefrom to be used by the Salvation Army to further its charitable purposes in the greater Daytona Beach, Florida area.” On August 16, 1999, decedent executed a codicil naming the Florida attorney who had drafted his will and codicil as his executor, and otherwise “ratiftied], confirmed] and republish[ed] [his] said Will of June 10,1999.” Decedent was single, and had no children. His closest relatives were his brother, John, and a sister, and their respective children.

According to John Ferrara’s son, Dominick Ferrara, after decedent was hospitalized in Florida in December 1999, he and his father “were called to assist.” Dominick Ferrara traveled to Florida to visit decedent, who

“told [him] he wanted to move to New York to be near his family and asked [him] to obtain Powers of Attorney for his signature so that [he] could attend to [decedent’s] affairs. At [decedent’s] direction [Dominick Ferrara] went to a local stationery store and obtained several Powers of Attorney which [he] filled out in [his] own words and gave to [decedent] for his review and signature. [Decedent] reviewed them and signed all of them before a Notary Public.”

These Florida powers of attorney apparently authorized Dominick and John Ferrara to write checks on decedent’s bank accounts and liquidate certificates of deposit; to sell and/or buy stocks and securities; ánd to sell decedent’s Florida residence and its contents and his automobile. According to Dominick Ferrara, decedent took him to his bank in Florida, where he handed over a blue bag kept in a safe deposit box. The blue bag contained stock certificates for shares of IBM stock as well as certificates of deposit.

On January 15, 2000, Dominick Ferrara accompanied decedent on a flight from Florida to New York. He brought along the blue bag and a box containing decedent’s 1998 federal income tax returns and other personal papers or records and memorabilia; he testified that there was no will among these papers, which he apparently culled after decedent’s death, and that decedent never mentioned any will to him. Immediately upon arriving in New York, decedent was admitted to an assisted living facility. He was thin, malnourished and weak, and was suffering from an array of serious chronic maladies.

On January 25, 2000, 10 days later, decedent signed, and initialed where required, multiple originals of a “Durable General Power of Attorney: New York Statutory Short Form,” thereby appointing John and Dominick Ferrara as his attorneys-in-fact, and allowing either of them to act separately

“IN [HIS] NAME, PLACE AND STEAD in any way which [he] [him] self could do, if [he] were personally present, with respect to the following matters [listed in lettered subdivisions (A) through (O)] as each of them is defined in Title 15 of Article 5 of the New York General Obligations Law to the extent that [he was] permitted by law to act through an agent.”

Subdivisions (A) through (O) of the preprinted form listed various kinds of transactions; in particular, subdivision (M) specified “making gifts to my spouse, children and more remote descendants, and parents, not to exceed in the aggregate $10,000 to each of such persons in any year.” Decedent authorized his attorneys-in-fact to carry out all of the matters listed in subdivisions (A) through (O). Critically, decedent also initialed a typewritten addition to the form, which stated that “[t]his Power of Attorney shall enable the Attorneys in Fact to make gifts without limitation in amount to John Ferrara and/or Dominick Ferrara.”

Dominick Ferrara insists that this provision authorizing him to make unlimited gifts to himself was added “[i]n furtherance of [decedent’s] wishes,” because decedent repeatedly told him in December 1999 and January 2000 that he “wanted [Dominick Ferrara] to have all of [decedent’s] assets to do with as [he] pleased.” When asked if he and decedent had discussed making gifts to other family members — including his father, John, the other attorney-in-fact — Dominick Ferrara replied that they had not, again because “[m]y Uncle George gave me his money to do as I wished.” Dominick Ferrara acknowledges that decedent made no memorandum or note to this effect, and only once expressed these donative intentions in the presence of anyone else — Dominick’s wife, Elizabeth. Dominick Ferrara sought out an attorney in New York City “to discuss [his] Uncle’s wishes,” and this attorney provided him with the power of attorney that decedent ultimately executed.

The power of attorney was notarized by an attorney with whom Dominick and Elizabeth Ferrara were acquainted. This attorney testified that she attended the signing at the Ferraras’ behest, and was acting as a notary only, not as an attorney for either the Ferraras or decedent. Specifically, she rendered no legal advice to decedent, who read the form in her presence before signing it. The attorney and Dominick Ferrara generally agree that it was Dominick who explained the form’s provisions to decedent; she does not recall the word “gift” having been mentioned.

Decedent’s condition deteriorated. He was admitted to the hospital on January 29, 2000, and never left. Decedent died on February 12, 2000, less than a month after moving to New York, and approximately three weeks after executing the power of attorney. During those three weeks, Dominick Ferrara transferred about $820,000 of decedent’s assets to himself, including the IBM stock and about $300,000 in cash from the certificates of deposit, multiple bank accounts and the sale of the Florida property. After decedent’s death, he filed a 1999 federal income tax return for decedent, and collected a refund in the amount of roughly $9,500. Dominick Ferrara testified that he does not recall what happened to any of the $300,000 in cash, but that he still owns the IBM stock.

The Salvation Army found out about decedent’s will after a doctor in Florida, learning of decedent’s death, contacted decedent’s Florida attorney, the executor of his estate under the will, to inquire about an unpaid bill. Claiming that Dominick Ferrara had stonewalled every effort to obtain relevant information, the Salvation Army subsequently commenced a proceeding under section 2103 of the Surrogate’s Court Procedure Act against Dominick Ferrara and others, seeking discovery and turnover of decedent’s assets. The Ferrara respondents moved to dismiss the turnover proceeding on the ground that, prior to decedent’s death, Dominick Ferrara had properly transferred substantially all of decedent’s assets to himself pursuant to the power of attorney. The Surrogate denied the motion, set a discovery deadline, and scheduled a hearing to determine the power of attorney’s validity.

The Surrogate dismissed the petition on March 31, 2004. He first determined that decedent was competent to execute the power of attorney, and that it was properly signed, initialed and notarized in conformity with article 5, title 15 of the General Obligations Law. The Surrogate noted that there was at one time “a presumption of impropriety due to the appearance of impropriety and self dealing” when an attorney-in-fact made self-gifts (3 Misc 3d 944, 945-946 [Sur Ct, Rockland County 2004] [citation omitted]). He opined, however, that amendments to article 5, title 15 of the General Obligations Law, enacted in 1996 and effective January 1, 1997, had eliminated this presumption. Thus, “when a post-January 1, 1997 power of attorney specifically and expressly authorizes gifting by the agent to himself, the presumption of impropriety no longer applies and the burden of proving the validity of the gift is no longer on the agent” (id. at 946 [citations omitted]). As a result, “the burden of proving the invalidity of the gift is on [the Salvation Army],” and here, the Salvation Army “failed to demonstrate that the transfers pursuant to the power of attorney [were] invalid” (id.). The Surrogate further observed that article 5, title 15 directs an attorney-in-fact authorized to make annual gifts of $10,000 or less to specified beneficiaries to do so only for purposes reasonably deemed to be in the principal’s “best interest.” The court invited the Legislature to amend the law “to provide for the same [best interest] limitation when there is express language in the power of attorney for gifts to an agent in excess of $10,000 per year” (id. at 947).

The Appellate Division affirmed, seemingly concluding that while the presumption of impropriety still exists, Dominick Ferrara had overcome it solely by virtue of the power of attorney; and that “competent evidence was adduced at the hearing to support the [Ferrara] respondents’ contention that the decedent specifically authorized the distribution of his funds to . . . Dominick Ferrara” (22 AD3d 578 [2d Dept 2005]). We granted the Salvation Army permission to appeal, and now reverse.

II.

Section 5-1501 of the General Obligations Law sets out the forms creating a durable and nondurable statutory short form power of attorney (section 5-1501 [1] and [1-a] respectively). By these forms, the principal appoints an attorney-in-fact to act “IN [HIS] NAME, PLACE AND STEAD” with respect to any or all of 15 categories of matters listed in lettered subdivisions (A) through (O) “as each of them is defined in Title 15 of Article 5 of the New York General Obligations Law”; specifically, the 15 categories in subdivisions (A) through (O) are interpreted in corresponding sections 5-1502A through 5-15020 of the General Obligations Law (id.).

As relevant to this case, in 1996 the Legislature amended section 5-1501 (1) to add lettered subdivision (M), authorizing the attorney-in-fact to “mak[e] gifts to [the principal’s] spouse, children and more remote descendants, and parents, not to exceed in the aggregate $10,000 to each of such persons in any year” (see L 1996, ch 499, § 1). Section 5-1502M construes this gift-giving authority

“to mean that the principal authorizes the agent . . . [t]o make gifts . . . either outright or to a trust for the sole benefit of one or more of [the specified] persons . . . only for purposes which the agent reasonably deems to be in the best interest of the principal, specifically including minimization of income, estate, inheritance, generation-skipping transfer or gift taxes” (General Obligations Law § 5-1502M [1] [emphasis added]).

Such gifts may not exceed $10,000 “unless the statutory short form power of attorney contains additional language pursuant to section 5-1503 of the general obligations law authorizing gifts in excess of said amount or gifts to other beneficiaries” (id.). Section 5-1503 (2), in turn, permits “additional language” that “[supplements one or more of the powers enumerated in one or more of the constructional sections [§§ 5-1502A — 5-15020] in [title 15] with respect to a subdivision [(A)-(O)] of the statutory short form power of attorney . . . affirmatively chosen by the principal, by specifically listing additional powers of the agent.”

Thus, section 5-1502M unambiguously imposes a duty on the attorney-in-fact to exercise gift-giving authority in the best interest of the principal. Nothing in section 5-1502M indicates that the best interest requirement is waived when additional language increases the gift amount or expands the potential beneficiaries pursuant to section 5-1503. The Ferrara respondents argue — and the Surrogate seemed to agree — that because section 5-1503 (2) does not also contain a best interest requirement, an attorney-in-fact has no obligation to act in the principal’s best interest unless the additional language explicitly so directs. But section 5-1503 (2) states that the “additional language” may “[s]upplement[ ] one or more of the powers enumerated in one or more of the constructional sections” (emphasis added). By referring to the constructional sections, section 5-1503 (2) incorporates their limitations into any additional language supplementing a defined power, including the gift-giving authority interpreted by section 5-1502M. This is consistent with section 5-1503 (3), which permits “additional language” to be added to the statutory short form power of attorney in order to make “some additional provision which is not inconsistent with the other provisions of the statutory short form power of attorney” (emphasis added). The Legislature intended section 5-1503 to function as a means to customize the statutory short form power of attorney, not as an escape hatch from the statute’s protections.

Legislative purpose and history also support this reading of these provisions. The Legislature enacted the 1996 amendments to “clarify and simplify” existing law while protecting principals from abuse (Mem in Support of 1996 NY Assembly Bill A 10754; see also Bill Jacket, L 1996, ch 499). The amendments added powers “to deal with tax matters, and retirement benefit transactions, and to make gifts to named relatives, not to exceed $10,000 per year” (Mem in Support of 1996 NY Assembly Bill A 10754). By making these powers explicit and defining their scope, the amendments sought to “make it clearer when these powers are granted, and allow the principal to focus specifically on these issues” (id.). At the same time, to prevent abuse and overreaching, the amendments “add[ed] language to the interpretive sections of the law to make clear the scope of the new powers relating to tax and retirement planning and gifting” (id.).

Section 5-1502M, the constructional section governing gift giving, explains at subdivision (1) that authority to make gifts in the best interest of the principal includes “minimization of income, estate, inheritance, generation-skipping transfer or gift taxes.” As this language shows, the purpose of the gift-giving authority is to allow an attorney-in-fact to carry out the principal’s intentions to use gifts as part of a financial or estate plan, which will often involve taking advantage of certain tax provisions. In fact, the amount the attorney-in-fact is permitted to gift under subdivision (M) of the form — $10,000 per qualified beneficiary per year — tracks the federal annual gift-tax exclusion in effect in 1996. In short, the Legislature sought to empower individuals to appoint an attorney-in-fact to make annual gifts consistent with financial, estate or tax planning techniques and objectives — not to create gift-giving authority generally, and certainly not to supplant a will.

As further evidence of this intent, subdivision (M) of the form includes only the closest of potential familial beneficiaries. While the attorney-in-fact may make gifts to himself if he qualifies as a beneficiary, the statute focuses on the close family members, not on the attorney-in-fact. Thus, the attorney-in-fact is not excluded, but the statute includes the best interest requirement to serve the statute’s purpose and to prevent abuse.

Finally, the best interest requirement is consistent with the fiduciary duties that courts have historically imposed on attorneys-in-fact. “[A] power of attorney ... is clearly given with the intent that the attorney-in-fact will utilize that power for the benefit of the principal” (Mantella v Mantella, 268 AD2d 852, 852 [3d Dept 2000] [internal quotation marks and citation omitted]). Because “[t]he relationship of an attorney-in-fact to his principal is that of agent and principal . . . , the attorney-in-fact must act in the utmost good faith and undivided loyalty toward the principal, and must act in accordance with the highest principles of morality, fidelity, loyalty and fair dealing” (Semmler v Naples, 166 AD2d 751, 752 [3d Dept 1990] [internal quotation marks and citations omitted]).

In short, whether the gift-giving power in a statutory short form power of attorney is limited to the authority spelled out in lettered subdivision (M) in section 5-1501 (1), or augmented by additional language in conformity with section 5-1503, the best interest requirement remains. Thus, Dominick Ferrara was only authorized to make gifts to himself insofar as these gifts were in decedent’s best interest, interpreted by section 5-1502M as gifts to carry out the principal’s financial, estate or tax plans. Here, Dominick Ferarra clearly did not make gifts to himself for such purposes. Rather, he consistently testified that he made the self-gifts “[i]n furtherance of [decedent’s] wishes” to give him “all of his assets to do with as [Dominick] pleased.” The term “best interest” does not include such unqualified generosity to the holder of a power of attorney, especially where the gift virtually impoverishes a donor whose estate plan, shown by a recent will, contradicts any desire to benefit the recipient of the gift. Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to Surrogate’s Court for further proceedings in accordance with this opinion.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and R.S. Smith concur.

Order reversed, etc.

      . The Florida lawyer renounced his appointment as executor, and consented to issuance of letters of administration c.t.a. to the Salvation Army.

      . A durable power of attorney survives the principal’s incapacity and disability, while a nondurable power of attorney terminates if the principal becomes incapacitated or disabled.

      . The 15 categories are reed estate transactions (§ 5-1502A); chattel and goods transactions (§ 5-1502B); bond, share and commodity transactions (§ 5-1502C); banking transactions (§ 5-1502D); business operating transactions (§ 5-1502E); insurance transactions (§ 5-1502F); estate transactions (§ 5-1502G); claims and litigation (§ 5-1502H); personal relationships and affairs (§ 5-15021); benefits from military service (§ 5-1502J); records, reports and statements (§ 5-1502K); retirement benefit transactions (§ 5-1502L); gifts to specified beneficiaries not to exceed $10,000 to each per year (§ 5-1502M); tax matters (§ 5-1502N); and all other matters (§ 5-15020). Subdivision (P) on the form authorizes the attorney-in-fact to delegate any or all of the matters selected to anyone whom he chooses. Subdivision (Q), which reads “each of the above matters identified by the following letters,” allows the principal to list the letters of all the matters authorized and then to initial in one place on the document, as decedent did here, rather than separately initial each selected lettered subdivision.

      . Because Dominick Ferrara did not satisfy his fiduciary duty under General Obligations Law §§ 5-1501 and 5-1503 to make gifts in decedent’s best interest, we need not and do not reach the additional issue raised by the Salvation Army and Attorney General, appearing in his capacity as statutory intervener; namely, whether the burden of proof shifted to Dominick Ferrara to establish by clear evidence that his self-dealing (both in executing the power of attorney and making the gifts to himself) was free from fraud, deception or undue influence.


source: Caselaw Access Project

author: Chief Judge Kaye.

license: Public Domain

text:
    [852 NE2d 1144, 819 NYS2d 672]
    In the Matter of Comptroller of the City of New York, Appellant-Respondent, v Mayor of the City of New York et al., Respondents-Appellants, and Snapple Beverage Corp., Respondent.
    Argued June 6, 2006;
    decided June 29, 2006

      POINTS OF COUNSEL

      Judd Burstein, EC., New York City {Judd Burstein, Peter B. Schalk and Matthew G. DeOreo of counsel), for appellant-respondent.
    I. The Snapple contract is void. (Matter of Garrison Protective Servs. v Office of Comptroller of City of N.Y., 92 NY2d 732; Matter of DeTroia v Schweitzer, 87 NY2d 338; Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818; Goncalves v Regent Intl. Hotels, 58 NY2d 206; Gerzof v Sweeney, 16 NY2d 206; Matter of New York State Ch., Inc., Associated Gen. Contrs. of Am. v New York State Thruway Auth., 88 NY2d 56.)

      Michael A. Cardozo, Corporation Counsel, New York City (.Dona B. Morris, Francis F. Caputo, Jonathan S. Becker, Warren Shaw and Spencer Fisher of counsel), for Mayor of City of New York and others, respondents-appellants.
    I. Under the New York City Charter, concessions involve only the private use of the City of New York’s real property. (Towne v Eisner, 245 US 418; New York State Bankers Assn. v Albright, 38 NY2d 430; Matter of Sutka v Conners, 73 NY2d 395; Matter of ATM One v Landaverde, 2 NY3d 472; Matter of Long v Adirondack Park Agency, 76 NY2d 416; Golden v Koch, 49 NY2d 690; American Steel House Co. v Willcox, 38 Misc 571; Miller v City of New York, 15 NY2d 34; Board of Estimate of City of New York v Morris, 489 US 688; Matter of Albano v Kirby, 36 NY2d 526.) II. Petitioner’s claim that the Marketing Development Corporation agreement is void because it was not submitted to the Franchise and Concession Review Committee is time-barred under the statute of limitations. (Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539; Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30.) III. The Department of Citywide Administrative Services (DCAS) and Marketing Development Corporation agreements are not void notwithstanding the Comptroller’s claim that he may deny registration of the DCAS contract on grounds of substantively insufficient certifications. (Matter of DeFoe Corp. v New York City Dept. of Transp., 87 NY2d 754; Matter of City of New York v Beame, 37 AD2d 89; Matter of Konski Engrs. v Levitt, 69 AD2d 940; Matter of Grand Jury Subpoena Duces Tecum Served on Museum of Modern Art, 93 NY2d 729; Matter of Garrison Protective Servs. v Office of Comptroller of City of N.Y., 92 NY2d 732; Matter of Giuliani v Hevesi, 276 AD2d 398; Gerzof v Sweeney, 16 NY2d 206.)

      Shearman & Sterling LLP, New York City {Richard Schwed, Jeremy Epstein and Andrew C. Agor of counsel), for Snapple Beverage Corp., respondent.
    I. The Comptroller cannot challenge the legal conclusions underlying the New York City Charter § 327 certifications. (Matter of Giuliani v Hevesi, 276 AD2d 398; Matter of Garrison Protective Servs. v Office of Comptroller of City of N.Y., 92 NY2d 732.) II. The Comptroller’s claims seeking annulment of the Snapple agreement are time-barred. (Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30; Matter of Essex County v Zagata, 91 NY2d 447; Matter of Edmead v McGuire, 67 NY2d 714; Council of City of New York v Giuliani, 5 AD3d 330; Legal Aid Socy. v City of New York, 242 AD2d 423; Matter

      of GFI-Genfare, Div. of Gen. Signal Tech. Corp. v New York City Tr. Auth., 184 AD2d 334; Matter of Throggs Neck Resident Council v Cahill, 290 AD2d 324; Solnick v Whalen, 49 NY2d 224; Starburst Realty Corp. v City of New York, 125 AD2d 148.) III. The Comptroller lacks standing and the capacity to bring this action. (Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148; City of New York v State of New York, 86 NY2d 286; Matter of Giuliani v Hevesi, 276 AD2d 398; Silver v Pataki, 96 NY2d 532.)
   OPINION OF THE COURT

Chief Judge Kaye.

In July 2003, in a novel revenue-raising venture, the City of New York created the Marketing Development Corporation (MDC), to develop innovative public-private partnerships — using the City’s well-known image and resources — to promote New York City around the globe and generate jobs, revenue and tourism. The dispute before us centers on a concession contract between the City, MDC and the Department of Citywide Administrative Services (collectively, the City), and Snapple Beverage Corporation — a marketer of popular beverages — in which Snapple drinks would be offered for sale in vending machines on City property, and Snapple through its own initiatives would market the City brand.

When the City presented only the vending — not the marketing — portion of the contract to the New York City Franchise and Concession Review Committee (FCRC) for a public hearing on December 8, 2003 and approval two days later, the Comptroller balked. The City then sent the concession agreement to the Comptroller for registration on February 20, 2004, and the Comptroller objected by letter on March 18, 2004. Citing New York City Charter § 328 (b) (ii) and (c), the Comptroller’s concerns rested on two grounds. First, he asserted that the agreement was tinged with official corruption on the part of City officials at MDC. Second, he alleged that filings by the Mayor and the Corporation Counsel — certifying that the procedures for soliciting the agreement were followed, and that the agency had the legal authority to award the contract — were improper because only the vending portion of the contract had been submitted for approval to FCRC. Only the second allegation is at issue on this appeal.

By letter dated April 12, 2004, the Mayor responded to the Comptroller, directing him to register the contract pursuant to New York City Charter § 328 (c). On April 21, 2004, the Comptroller brought this combined special proceeding (CPLR art 78) and declaratory judgment action (CPLR 3001), seeking annulment of the contract with Snapple, a declaration that the contract was invalid and could not be implemented, and a declaration that New York City Charter § 362 (a) (defining “concession”) includes intangible property. The Comptroller sought summary judgment declaring that section 362 (a) applies to all types of property; the City cross-moved for summary judgment dismissing the proceeding in its entirety and raised a statute of limitations defense.

Supreme Court determined that the entire contract had been filed, and Charter § 328 (b) (ii) did not permit the Comptroller to raise an objection attacking only part of it. The court rejected the City’s statute of limitations defense, concluding that the last actions the Comptroller challenged — the filing of the contract on February 20, 2004, and the Mayor’s overruling of his objections on April 12, 2004 — were within four months of the commencement of the proceeding for article 78 review and the declaratory judgment claim that grew out of it. Concluding that the statute of limitations had not yet begun to run on the claim regarding the definition of property, the court held that Charter § 362 (a), defining “concession” as “a grant made by an agency for the private use of city-owned property for which the city receives compensation,” did not limit the meaning of “property” to “real property” but included intangible property. The court observed that numerous other Charter provisions used the terms “real” or “personal” when narrowly defining the term property, but section 362 (a) did not and thus the word “property” should be construed broadly to include intellectual property.

The Appellate Division unanimously affirmed, concluding that Charter § 328 (b) (ii) permitted the Comptroller to object only to the existence or nonexistence of the certifications, not to look beyond them to inspect the underlying process. Additionally, the Court agreed that the term “property” under Charter § 362 (a) includes intangibles such as intellectual property, recognizing that although the legislative history of the City Charter provision and concessions indicated the provision had been applied predominantly to real property, there was no sign of an intent to so limit its application. We now affirm.

As a preliminary matter, we reject the contention advanced by the City and Snapple that the statute of limitations bars the Comptroller’s claim that the contract is invalid because it could not be registered properly under Charter § 328. We disagree that December 10, 2003 — the date of the FCRC vote — was the trigger date for the statute of limitations. As noted recently in Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y. (5 NY3d 30, 34 [2005]), there are two requirements for determining when an agency action is “final and binding upon the petitioner” for article 78 statute of limitations purposes (see CPLR 217 [1]): the agency must have arrived at a definite position on the issue inflicting actual injury, and the injury may not be significantly ameliorated either by further administrative action or steps taken by the complaining party (id. at 34; see also Matter of City of New York [Grand Lafayette Props. LLC], 6 NY3d 540 [2006]).

Here, the agency determination became “final and binding” no earlier than February 20, 2004, the date the City filed the contract with the Comptroller for registration. At that point, the alleged procedural infirmity upon which the Comptroller bases his argument became irrevocable — the contracting parties had executed and filed a final, formal agreement subject to registration under section 328 (b). There was no further ameliorative administrative action expected, and the only steps left for the Comptroller were to set forth his objections on the ground that certification had not been made (§ 328 [b] [ii]), and to bring suit.

We agree with the City and Snapple, however, that the statute of limitations bars the Comptroller’s additional claim that the contract is void based on the Mayor’s failure to obtain total FCRC approval. That claim stems not from any injury asserted by the Comptroller under the Charter, but essentially from his role as an aggrieved voting member of the FCRC. On that claim, the statute began to run on December 8, 2003 — the date the Mayor refused to submit the marketing portion of the contract to the FCRC. After that date, no further FCRC action — with respect to the marketing portion of the contract — or steps taken by the Comptroller, other than his vote, were anticipated.

Turning to the substantive questions, we hold that under settled statutory interpretation principles, the term “property” in Charter § 362 (a) is not limited to “real property.” Those same principles of statutory interpretation, however, compel the conclusion that the Comptroller may not, under Charter § 328 (b) (ii), transform a procedure for registering a contract into a substantive investigation of a contract.

Whether the term “property” in section 362 (a) should be limited to real property is, we acknowledge, a close question. Indeed, following approval of the Charter by the voters, Charter drafters Frederick A.O. Schwarz, Jr. (chair of the New York City Charter Revision Commission [NYCCRC] established in January 1989) and Eric Lane (NYCCRC’s executive director and counsel) observed that,

“[t]he City possesses inalienable rights to its streets, highways, avenues, parks, wharves, and other public property. There is enormous demand for the use of this property. Through franchises, revocable consents, concessions, and licenses, the City has established techniques to grant permits to private entrepreneurs, such as cable, bus, and ferry companies; restaurants; and newspaper purveyors, for use by the city’s residents. The distinction among these uses provokes uncertainty, but we offer our view (which is now part of the Charter), and caution as Schwarz stated at one public meeting: ‘[N] either the Kang nor the deity, in fact, has laid down immutable rules on what is a franchise, and what is a concession, and what is a revocable consent’ ” (Schwarz and Lane, The Policy and Politics of Charter Making: The Story of New York City’s 1989 Charter, 42 NYL Sch L Rev 723, 873 and n 519 [1998]).

The City makes a plausible argument that the term “property” as it relates to concessions, when analyzed within its historical and legislative context, was meant to refer only to real property. Perhaps the City’s most favorable evidence that the current Charter’s drafters intended the narrower meaning of “property” is found in a June 29, 1989 draft of what became section 362 (a), defining concession to mean: “a grant made by any agency for the operation or management of an enterprise for profit on city-owned property for which the city receives compensation” (see June 1989 Revised Proposals of NYCCRC [emphasis added]). This sentence, the City maintains, must employ the term “property” to refer to real property, because it is impossible to manage or operate a business “on” intangible property. The Comptroller counters, however, that the drafters removed the word “on” from the provision, thereby demonstrating some intent not to limit the types of property covered by section 362 (a).

We choose to construe the term “property” in accordance with the clear legislative language recognizing that, should the City see fit, it may seek amendment of the Charter provision to reflect a narrower view of the term. It is fundamental, of course, that we turn first to the text itself when interpreting a statute, as the best evidence of legislative intent. Generally, unambiguous language is determinative, and courts must give effect to the plain meaning of a statute’s terms (see Matter of Theroux v Reilly, 1 NY3d 232, 239 [2003]). The terms here could not be clearer: “ ‘[concession’ shall mean a grant by an agency for the private use of city-owned property” (§ 362 [a] [emphasis added]). The only qualifier of the term “property” in this definition is “city-owned” — not real, not personal, not tangible or intangible. Black’s Law Dictionary states that “property” is “commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal” (at 1095 [5th ed 1979]). We see no reason to limit “property” any more than the drafters have.

As the Comptroller emphasizes, when the drafters of the Charter meant “real property” in section 362, they used those words. For example, section 362 (d), defines the term “Revocable Consent” and twice uses the term “real property,” in contrast to “inalienable property”:

“ ‘Revocable Consent’ shall mean a grant by the city of a right, revocable at will, (1) to any person to construct and use for private use pipes, conduits and tunnels under, railroad tracks upon, and connecting bridges over inalienable property, (2) to an owner of real property or, with the consent of the owner, to a tenant of real property to use adjacent inalienable property for such purposes as may be permitted by rules of the department of transportation or the department of information technology and telecommunications or (3) to a public service corporation for facilities ancillary to, but not within, a franchise granted prior to the effective date of this section.”

Thus, within section 362 as a whole, the drafters took care to define the term “property” in no less than three distinct ways— real property (§ 362 [d]), inalienable property (§ 362 [d]) and City-owned property (§ 362 [a]). Moreover, there are more than 50 other sections of the Charter expressly referring to “real property” — not “property.” We conclude that the drafters’ decision not to use the term “real property” in section 362 (a) indicates that they did not intend the narrower construction.

The Comptroller also posits that in those sections where the drafters intended for property-related terms to have meanings that might vary from their commonly accepted meanings, they said so explicitly — in section 210 (8), for example, the drafters made clear that the term “real property” should include items such as liens and easements that are not generally viewed as real property (see also Charter § 1150 [12]). Thus, time after time, the drafters purposefully chose the term “real property” when that term was intended, and specially defined it or did not use it at all when something else was intended.

Nor is it inconsistent that some sections of the Charter contemplate that many concessions will in fact be located on City-owned real property. For example, section 373 (a) requires the borough president (or designee) “in which such . . . concession is located” to serve on the FCRC reviewing the proposed concession (see also § 374 [b] [defining “major concessions” as those having “significant land use impacts and implications”]). Naturally, the drafters would envision concessions affecting real property — the likely majority of City-owned property — and craft the Charter provisions accordingly. As this Court perceived more than a century ago in Hudson Riv. Tel. Co. v Watervliet Turnpike & Ry. Co. (135 NY 393, 403-404 [1892]), however,

“[t]he words of the statute are to be interpreted according to their natural and obvious meaning, and, as the terms employed are not ambiguous, extrinsic facts are not available to restrict the authority which it plainly confers. ... It would be an unjust reflection upon the wisdom and intelligence of the law-making body to assume that they intended to confine the scope of their legislation to the present, and to exclude all consideration for the developments of the future. If any presumption is to be indulged in, it is that general legislative enactments are mindful of the growth and increasing needs of society, and they should be construed to encourage, rather than to embarrass the inventive and progressive tendency of the people.”

Former Mayor Edward I. Koch advised the drafters, moreover, that with respect to concessions, franchises and revocable consents it was essential that the new Charter recognize “different uses, warranting different levels of executive and legislative review . . . [and that] the new Charter be open-ended and flexible, recognizing that technological and economic developments will inevitably expand or alter the universe of uses” (Mem of Mayor of City of NY Edward I. Koch to NYCCRC, dated June 5, 1989). Therefore, the former Mayor cautioned, “the Charter should speak in general categories rather than relying exclusively on current labels or activities” (id.). As a result of our holding, FCRC review will occur for concession contracts involving intangible, as well as real City-owned property. Thus, as a policy matter, our interpretation of section 362 (a) is also consistent with the underlying goals of the Charter, to ensure transparency in the governmental process, and adequate checks and balances (see e.g. Schwarz and Lane, 42 NYL Sch L Rev at 739-743).

Applying those same general principles of statutory construction, as the City now urges, we must reject the Comptroller’s position that under section 328 (b) (ii), he was entitled to inspect the process by which the City came to its agreement with Snapple.

Two provisions of the Charter are in issue. Section 327 (certification of legal authority and procedural requisites) requires that contracts not let by competitive sealed bidding must be certified, prior to filing with the Comptroller, by the Mayor and the Corporation Counsel (see Charter § 327 [a], [b]). Section 328 (registration of contracts by the Comptroller) provides that the Comptroller need not register the contract when certification pursuant to section 327 has not been made (see Charter § 328 [b] [ii]). On its face, section 328 (b) (ii) simply requires registration unless certification did not occur.

In this instance, the Comptroller argues rather circuitously that he need not comply with his statutory obligation to register the contract. He asserts that the City never submitted the marketing portion of the Snapple agreement to FCRC for review; that the mayoral certification under section 327 (a) that “the procedural requisites for the solicitation and award of the contract have been met” is untrue; and he therefore cannot be compelled to register the contract under section 328 (b) (ii).

The Comptroller may deny registration, however, only if “a certification required by [section 327] has not been made” (§ 328 [b] [ii]). The Comptroller’s review as to section 327 certifications is explicitly limited by the plain terms of the statute. Section 328 (b) (ii) does not give the Comptroller the power to second-guess facially sufficient certifications provided by the Mayor and the Corporation Counsel. The delegation of duties set forth in the relevant provisions of the Charter establishes in plain language that the Mayor and the Corporation Counsel— not the Comptroller — bear the burden of determining that procedural requirements have been met and legal authority exists to award a concession contract. Thus, there is no reason to annul the Snapple contract.

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

Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed, etc.

      . A voting member of the FCRC, the Comptroller cast his ballot — via designee — against the contract in a 4-2 vote to approve it.

      . Snapple also cross-moved for this relief but, having failed to answer the petition, it was not, in Supreme Court’s view, entitled to summary judgment.

      . To the extent that the Comptroller raised other objections to the certifications, such as the failure of the Mayor and the Corporation Counsel to certify the contract properly before it was filed, the court found those objections waived because they were not timely raised in the Comptroller’s March 18, 2004 letter. That determination is not before us on appeal.

      . The court did not address the City’s statute of limitations defense.

      . Snapple additionally alleges that the Comptroller lacks capacity and standing to bring the claims alleged. The lower courts did not pass on these claims and the City does not join in Snapple’s arguments. We conclude Snap-pie’s claims are meritless. The Comptroller has the “functional responsibility within the zone of interest to be protected” — here, to insist upon certifications before registering a contract (see Silver v Pataki, 96 NY2d 532, 537 [2001]) and thus has capacity to sue. It also seems clear that the Comptroller has standing to raise the issue whether, under section 328 (b), he may refuse to register a contract and prohibit the Mayor from implementing it on the grounds alleged. Certainly, the Comptroller has shown the existence of a cognizable “injury” falling within his zone of interest (96 NY2d at 539).

      . Charter § 362 (a), found in chapter 14: “Franchises, Revocable Consents and Concessions,” states that:
      “For the purposes of this charter:
      “a. ‘Concession’ shall mean a grant by an agency for the private use of city-owned property for which the city receives compensation other than in the form of a fee to cover administrative costs, except that concessions shall not include franchises, revocable consents and leases.”

      . Charter § 383 provides that “[t]he rights of the city in and to its water front, ferries, wharf property, bridges, land under water, public landings, wharves, docks, streets, avenues, highways, parks, waters, waterways and all other public places are hereby declared to be inalienable.”


author: Graffeo, J.

text:
    [852 NE2d 1150, 819 NYS2d 679]
    Lee Long, Appellant, v State of New York, Respondent.
    (Claim No. 106274.)
    Argued June 1, 2006;
    decided July 5, 2006

      POINTS OF COUNSEL

      Joel Berger, New York City, for appellant.
    Where the dismissal of an indictment is clearly predicated upon an order vacating a judgment of conviction pursuant to CPL 440.10 (1) (g) (newly discovered evidence), and the court vacating the judgment has determined, with the People in agreement, that defendant is innocent and that dismissal of the indictment is therefore the appropriate course of action, and defendant subsequently files a claim in the Court of Claims, the statutory requirements for presentation of such a claim (Court of Claims Act § 8-b [3] [b] [ii]) have been met. (Coakley v State of New York, 150 Misc 2d 903; Dozier v State of New York, 134 AD2d 759; Ferrer v State of New York, 136 Misc 2d 218, 136 AD2d 487; Gordon v State of New York, 141 Misec 2d 242; Stewart v State of New York, 133 AD2d 112; Ivey v State of New York, 80 NY2d 474; Baba-Ali v State of New York, 20 AD3d 376.)

      Eliot Spitzer, Attorney General, Albany (Frank K. Walsh, Caitlin J. Halligan, Daniel Smirlock and Peter H. Schiff of counsel), for respondent.
    I. The Court of Claims correctly determined that the claim is jurisdictionally defective because it was filed on June 26, 2002, more than two years after Supreme Court’s June 23, 2000 order vacating claimant’s conviction and dismissing the indictment. (Romano v Romano, 19 NY2d 444; Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, 374 US 808; Schmidt v Merchants Despatch Transp. Co., 270 NY 287.) II. The Court of Claims correctly determined that the claim was jurisdictionally defective because it was not personally verified by the claimant. (Webb v State of New York, 18 AD3d 648, 6 NY3d 707; Lepkowski v State of New York, 1 NY3d 201; Finnerty v New York State Thruway Auth., 75 NY2d 721; Glassman v Glassman, 309 NY 436; Lichtenstein v State of New York, 93 NY2d 911; Dreger v New York State Thruway Auth., 81 NY2d 721; Berger v City of New York, 260 App Div 402, 285 NY 723; David W. v State of New York, 27 AD3d 111; Reed v State of New York, 78 NY2d 1; Ivey v State of New York, 80 NY2d 474.) III. The Second Department’s interpretation of the proviso clause of Court of Claims Act § 8-b (3) (b) (ii) (A), while in conflict with that of the other departments of the Appellate Division, is the only interpretation that can be harmonized with this Court’s decision in Ivey v State of New York (80 NY2d 474 [1992]). (Woodley v State of New York, 306 AD2d 524; Stewart v State of New York, 133 AD2d 112, 72 NY2d 807; Coakley v State of New York, 225 AD2d 477; Dozier v State of New York, 134 AD2d 759.)
   OPINION OF THE COURT

Graffeo, J.

Although claimant satisfied the statutory requirements of Court of Claims Act § 8-b (3) (b) (ii) in this action to recover damages for unjust conviction and imprisonment, he failed to verify his claim properly. We therefore affirm the dismissal of this claim.

In April 1995, following a jury trial, claimant Lee Long was convicted of rape in the first degree, robbery in the first degree and two counts of sexual abuse in the first degree. Supreme Court sentenced him to serve two concurrent terms of 8 to 24 years imprisonment. The Appellate Division affirmed the judgment of conviction.

Based in part on a postconviction investigation conducted by the District Attorney’s office in 1999, claimant moved to vacate his judgment of conviction under CPL 440.10 and dismiss the indictment in the interest of justice pursuant to CPL 210.40. After a hearing, by order dated June 23, 2000, Supreme Court granted the motion. In a memorandum decision dated June 26, 2000, the court explained that the evidence adduced at the hearing indicated that claimant was “the wrong man” and that only one remedy would “serve the ends of justice.” The court did not articulate the specific statutory ground upon which it based the vacatur. Claimant was released from prison on June 28, 2000.

Almost two years later, claimant sought clarification from the court regarding the precise basis for the vacatur of his conviction. Supreme Court granted this request in May 2002 and again vacated the judgment of conviction, expressly stating that its decision was premised upon CPL 440.10 (1) (g), which provides for vacatur based on newly discovered evidence. The court reiterated that “the indictment is dismissed in the interests of justice pursuant to C.PL. § 210.40.”

On June 26, 2002, claimant commenced this action against defendant State of New York, seeking damages for unjust conviction and imprisonment pursuant to Court of Claims Act § 8-b. The State answered and raised a number of affirmative defenses, including untimeliness and improper verification. Claimant moved to dismiss the affirmative defenses and the State cross-moved for summary judgment dismissing the claim. Specifically, the State argued that (1) the claim was time-barred because it was not filed within two years of the dismissal of the indictment; (2) the claim was fatally defective because it was not personally verified by claimant; and (3) claimant did not state a cause of action because the dismissal of the indictment, as opposed to merely the vacatur of the conviction, was not predicated on one of the grounds enumerated in Court of Claims Act § 8-b (3) (b) (ii) and CPL 440.10 (1).

The Court of Claims granted the State’s motion, finding the claim time-barred and the verification deficient. The Appellate Division affirmed, but for a different reason. The Court determined that claimant did not meet the requirements of Court of Claims Act § 8-b (3) (b) (ii), construing that provision to require that both the judgment be vacated and the indictment be dismissed on grounds set forth in CPL 440.10 (1). The Court did not reach the issues of timeliness or verification. We granted claimant leave to appeal.

Claimant argues that the Appellate Division erred in requiring him to show that the vacatur of the judgment and dismissal of the indictment were based on one of the grounds specified in Court of Claims Act § 8-b (3) (b) (ii) and CPL 440.10 (1). Rather, claimant contends that the Court of Claims Act requires a claimant to establish only that the vacatur of the judgment was predicated upon one of the statutory grounds. We agree.

When presented with an issue of statutory interpretation, the court’s primary consideration “is to ascertain and give effect to the intention of the Legislature” (Riley v County of Broome, 95 NY2d 455, 463 [2000] [internal quotation marks and citation omitted]). Although statutes will ordinarily be accorded their plain meaning, it is well settled that courts should construe them to avoid objectionable, unreasonable or absurd consequences (see People v Santi, 3 NY3d 234, 242 [2004]; Matter of ATM One v Landaverde, 2 NY3d 472, 477 [2004]; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 141, 143).

The Legislature enacted Court of Claims Act § 8-b in 1984 to allow innocent persons to recover damages from the state where they can prove by clear and convincing evidence that they were unjustly convicted and imprisoned (see Court of Claims Act § 8-b [1]). The relevant portion of the statute provides as follows:

“3. In order to present the claim for unjust conviction and imprisonment, claimant must establish by documentary evidence that: . . .
“(b) . . . (ii) his judgment of conviction was reversed or vacated, and the accusatory instrument dismissed or, if a new trial was ordered, either he was found not guilty at the new trial or he was not retried and the accusatory instrument dismissed; provided that the judg[ ]ment of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of the following grounds: (A) paragraph (a), (b), (c), (e) or (g) of subdivision one of section 440.10 of the criminal procedure law” (Court of Claims Act § 8-b [3]).

A claimant may therefore seek redress where the court (1) vacates (or reverses) the judgment and dismisses the accusatory instrument; (2) vacates the judgment and orders a new trial, followed by a subsequent dismissal of the accusatory instrument before retrial; or (3) vacates the judgment and orders a new trial, resulting in a not guilty verdict.

We previously addressed the statute’s proviso clause requiring a claimant to show that “the judgment of conviction was reversed or vacated, and the accusatory instrument was dismissed, on any of the [enumerated grounds]” in Ivey v State of New York (80 NY2d 474, 479 [1992]). We noted that, “[i]n enacting section 8-b, the Legislature sought to strike a balance between the goals of compensating innocent individuals who had been unjustly convicted and imprisoned, and foreclosing frivolous suits against the State” (id., citing 1984 Report of NY Law Rev Commn to Governor on Redress for Innocent Persons Unjustly Convicted and Subsequently Imprisoned, 1984 NY Legis Doc No. 65, reprinted in 1984 McKinney’s Session Laws of NY, at 2928). We further observed that “[t]his effort was reflected to some extent by the Legislature’s tacking on the proviso clause to section 8-b (3) (b) (ii). The explicit limitations in the proviso clause were added despite the absence of a recommendation to do so by the Law Revision Commission” (id.).

In Ivey, the issue was whether a reversal must be predicated on one of the enumerated grounds when there was a retrial and acquittal. Acknowledging the “awkward location and punctuation of the proviso clause,” we determined that when a retrial results in an acquittal, the claimant need not show that the reversal or vacatur was based on one of the grounds listed in Court of Claims Act § 8-b (3) (b) (ii) (id. at 480-481). We reasoned that the proviso did not apply in that scenario because that clause, by its terms, applied only when “the accusatory instrument was dismissed.” A dismissal, however, “is a technically and theoretically alien notion where a new trial is ordered and held and results in an acquittal” (id. at 481).

Where, as here, the accusatory instrument is dismissed, the plain language of the proviso appears to suggest that both the vacatur of the judgment and dismissal of the accusatory instrument must be premised on one of the grounds set forth in CPL 440.10 (1). But requiring the dismissal to occur under one of those bases would be unworkable. As an initial matter, the grounds specified in CPL 440.10 (1) apply solely to the vacatur of a judgment. When granting a motion to vacate, a court dismisses the accusatory instrument (or orders a new trial) pursuant to a different subdivision — CPL 440.10 (4). More importantly, where a court vacates a judgment and orders a new trial, but later dismisses the accusatory instrument before retrial, such dismissal cannot possibly occur under CPL 440.10 (1). Once a court grants the motion to vacate and orders a new trial, CPL 440.10 no longer applies; instead, any subsequent dismissal has to be undertaken in accordance with one of the statutes authorizing dismissal of an accusatory instrument (see CPL 170.30, 170.50, 210.20). Since Court of Claims Act § 8-b (3) (b) (ii) clearly provides redress when a court orders a new trial and later dismisses the accusatory instrument, construing the provision to require a claimant to establish that the instrument was dismissed pursuant to CPL 440.10 would impose an impossible condition and create a self-contradictory statute, a result the Legislature could not have intended.

We conclude that a claim satisfies the statutory criteria if the claimant establishes that the judgment of conviction was vacated under one of the specified grounds in Court of Claims Act § 8-b (3) (b) (ii), regardless of the basis for the dismissal of the accusatory instrument. Contrary to the State’s argument, such interpretation does not ignore the statutory clause — “and the accusatory instrument was dismissed.” Our reading of the statute accords with Ivey and gives effect to that phrase — a reversal or vacatur must be premised on one of the enumerated grounds only if “the accusatory instrument was dismissed.”

Here, although Supreme Court’s June 2000 memorandum decision did not indicate the CPL 440.10 (1) ground upon which the court based its vacatur, the May 2002 order clarified that the vacatur was granted pursuant to CPL 440.10 (1) (g), one of the grounds detailed in Court of Claims Act § 8-b (3) (b) (ii). Both decisions explained that the indictment was dismissed in the interest of justice under CPL 210.20 and 210.40. Claimant therefore has shown that his claim satisfied the requirements of Court of Claims Act § 8-b (3) (b) (ii).

Because we disagree with the Appellate Division’s reason for affirming the dismissal of the claim, we must now address the State’s alternative grounds for affirmance. Turning first to the question of timeliness, claimant must establish, by documentary evidence, that he filed his claim within two years from the dismissal of the accusatory instrument (see Court of Claims Act § 8-b [3] [c]; [7]). Taking judicial notice of the court records demonstrating that the indictment was not dismissed until June 28, 2000 (see Matter of Ordway, 196 NY 95, 97 [1909]; Prince, Richardson on Evidence § 2-209 [Farrell 11th ed]), we are satisfied that claimant sustained the timeliness of his claim.

The State further posits that the Court of Claims properly dismissed the claim because claimant did not personally verify the document. Relying on Lepkowski v State of New York (1 NY3d 201 [2003]), claimant counters that his attorney validly verified the claim pursuant to CPLR 3020 (d) (3), which permits an attorney to verify a claim if the client “is not in the county where the attorney has his office.”

Court of Claims Act § 8-b (4) plainly states that “[t]he claim shall be verified by the claimant.” The Law Revision Commission likewise emphasized that a claim “must be personally verified” (1984 Report of NY Law Rev Commn to Governor on Redress for Innocent Persons Unjustly Convicted and Subsequently Imprisoned, 1984 NY Legis Doc No. 65, reprinted in 1984 McKinney’s Session Laws of NY, at 2929). “Because suits against the State are allowed only by the State’s waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed” (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999], quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). It follows that claimant’s failure to verify his claim in compliance with the statute mandates its dismissal.

Claimant’s reliance on Lepkowski is misplaced. That case involved section 11 (b) of the Court of Claims Act, the general verification requirement that specifically incorporates CPLR procedures by providing that a claim “be verified in the same manner as a complaint in an action in the supreme court.” We concluded that a defectively verified claim under section 11 (b) should be treated no differently than a defective verification in Supreme Court, and that CPLR 3022’s remedy for an invalid verification is available (see Lepkowski, 1 NY3d at 210). In contrast, the verification requirement in Court of Claims Act § 8-b (4) is specific to claims for unjust conviction and imprisonment and makes no reference to the rules governing Supreme Court practice. Hence, CPLR 3020 (d) (3) and 3022 have no application to this case.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.

Chief Judge Kaye and Judges G.B. Smith, Cipabick, Rosenblatt and R.S. Smith concur; Judge Read taking no part.

Order, insofar as appealed from, affirmed, with costs.

       The court had considered the same evidence in its June 26, 2000 decision, but did not indicate whether such evidence formed the basis for its June 2000 vacatur of the judgment.


author: G.B. Smith, J.

text:
    [852 NE2d 1155, 819 NYS2d 684]
    The People of the State of New York, Respondent, v Jamal Petty, Appellant.
    Argued June 6, 2006;
    decided July 5, 2006

      POINTS OF COUNSEL

      Legal Aid Society, Criminal Appeals Bureau, New York City {Natalie Rea and Laura R. Johnson of counsel), for appellant.
    In this justification case, the court deprived appellant of his due process rights to a fair trial and to present a defense by erroneously (a) instructing the jury that evidence of threats by the victim against appellant were relevant only to appellant’s state of mind and the reasonableness of his conduct, when this evidence was also admissible and critical to the question whether the victim was the initial aggressor and (b) precluding the testimony of the only defense witness connected to the victim who would have testified to such threats. (People v Miller, 39 NY2d 543; People v Rodawald, 177 NY 408; Stokes v People, 53 NY 164; People v Wesley, 76 NY2d 555; People v Goetz, 68 NY2d 96; Wiggins v People, 93 US 465; People v Diallo, 297 AD2d 247; People v Owens, 158 AD2d 478; Crane v Kentucky, 476 US 683; Taylor v Illinois, 484 US 400.)

      Robert T. Johnson, District Attorney, Bronx (Susan E. Baumgartner and Nancy D. Killian of counsel), for respondent.
    I. The trial court correctly explained justification to the jury. (People v Granados, 198 AD2d 298; People v Soriano, 188 AD2d 420; People v Baker, 155 AD2d 398; People v Miller, 39 NY2d 543; People v Fields, 87 NY2d 821; People v Owens, 158 AD2d 478; People v Aska, 91 NY2d 979; People v Thomas, 275 AD2d 234; People v Morales, 11 AD3d 259, 4 NY3d 746; People v Goetz, 68 NY2d 96.) II. The trial court properly precluded Gail Smith from offering cumulative and irrelevant hearsay. (People v Corby, 6 NY3d 231; People v Harris, 98 NY2d 452; Stokes v People, 53 NY 164; Virginia v Black, 538 US 343; Watts v United States, 394 US 705; People v Dietze, 75 NY2d 47; People v Vincente, 4 AD3d 217, 3 NY3d 649; People v Schaefer, 302 AD2d 333, 100 NY2d 542; People v Luberoff, 150 AD2d 802; People v Boone, 78 AD2d 461.)
   OPINION OF THE COURT

G.B. Smith, J.

The principal issue in this case is whether the trial court erred when, during its justification charge, it instructed the jury that the deceased victim’s prior threats against defendant may be considered solely in determining defendant’s state of mind and the reasonableness of his conduct. We conclude that the trial court erred when it did not instruct the jury that these prior threats may also be used in the jury’s determination of who was the initial aggressor. For reasons set forth below, however, we conclude that the error was harmless and affirm.

Facts and Procedural History

On July 2, 1990, at approximately 11:30 p.m., defendant shot at Derrick Torrence twice, hitting him once in the back of the neck, and causing him to fall forward to the ground. No weapon was found on or near Torrence. On July 10, 1990, defendant turned himself in. By indictment filed July 31, 1990, defendant was charged with attempted murder in the second degree, assault in the first degree and related offenses. Four months after the shooting, Torrence died from complications related to his condition. By superseding indictment filed December 14, 1990, defendant was charged with murder in the second degree, manslaughter in the first degree and related offenses.

During the People’s case-in-chief, two young women who were friends of both defendant and Torrence testified that shortly before the shooting, they saw the two on the grounds of the Mayor John Purroy Mitchel Houses in the Bronx. Both witnesses, who were aware of a feud between defendant and Torrence, also testified that the housing development’s lights were on.

The first witness testified that shortly before the shooting, she spoke to and joked with Torrence who was wearing a tee shirt, pants and sneakers, but no coat. During this exchange, the witness did not notice a weapon on Torrence. After the exchange, the witness, who was on a bicycle, and Torrence went in opposite directions. Torrence headed in the direction of his home. Shortly thereafter, the witness heard someone shout a warning to Torrence. She then turned and saw defendant approaching Torrence. According to the witness, Torrence turned toward her, looking scared, and made a motion with his hands toward his waist as if he was preparing to run. This witness could not see whether Torrence placed his hand in his waist. Nor did she see what Torrence was doing right before defendant fired, as her attention was primarily on defendant. The witness further téstified that she was about 12 feet from Torrence when defendant fired the gun.

The second witness was seated on a bench with friends about 30 feet from where she saw defendant approach Torrence. Because her focus was primarily on defendant, this witness likewise did not see whether Torrence reached for anything. However, she did testify that when defendant pulled out his gun, Torrence turned away. She further testified that she could see Torrence’s hands right before the shooting and that Torrence did not threaten defendant, and after the shooting, defendant approached her with gun in hand and asked whether any of Torrence’s friends were in the area. Both young women estimated that defendant came to within five to eight feet of Torrence before firing the two shots. Further, the medical examiner testified that because the bullet that hit Torrence entered the back of his neck, he could not have been facing defendant at the time of the shooting.

During defendant’s case-in-chief, defendant admitted shooting and causing the death of Torrence. However, defendant claimed that the shooting was justified because threats and violence by Torrence and his friends, made and carried out prior to the date of the shooting, led to defendant’s reasonable belief that when Torrence reached toward his waist on the night of July 2, 1990, he was going to draw a weapon in order to kill defendant.

Defendant, his brother and two friends testified that, over an 11-day period starting on June 21, 1990, Torrence repeatedly threatened to kill defendant. According to the testimony of these four individuals, on June 21, 1990, defendant and Torrence played a $2 dice game which Torrence lost. When Torrence refused to pay, he and defendant got into a fistfight which defendant won. When defendant and Torrence were separated, Torrence directed a number of statements at defendant. Most of these statements were either future threats to kill defendant or angry words that would not constitute a threat of harm.

Defendant and other defense witnesses further testified that on June 22, 1990, Torrence and his friends attacked defendant and his friends. During this fight, a friend of Torrence shot one of defendant’s friends in the back of his shoulder. According to defendant and two other defense witnesses, Torrence directed his friend to shoot defendant during the fight, but the shooter missed.

During his testimony, defendant also recounted a June 29, 1990 conversation he had with the girlfriend of the shooter in the June 22 melee. According to defendant, the woman told him that on June 28, 1990, she, along with Torrence and her then-boyfriend, took part in a three-way telephone conversation in which Torrence stated that he was coming to kill defendant. When counsel asked defendant, “What . . . effect did this have on your state of mind,” the People objected. The trial court sustained the objection on the ground that the proposed testimony was irrelevant and stated that the only issue of relevance was “whether or not at the instance in question on July 2nd, . . . defendant had a reasonable belief as to certain conduct that it may or may not be alleged that . . . defendant did.”

Regarding the shooting at issue here, defendant testified that he was visiting a friend who was aware of the animus between defendant and Torrence. At about 11:00 p.m., defendant decided to leave his friend’s home and see his girlfriend and their two-year-old daughter. His friend gave him an illegal .38 caliber handgun for protection. While walking outside, defendant came upon Torrence who stood motionless with his hands at his sides, some 40 to 50 feet away. Torrence “turned his body” and feet away, but defendant claimed that he could see the upper half of Torrence’s body as well as both of his hands. Noting that no words were exchanged between the two men, defendant testified that Torrence (who was left-handed) “just reached” toward his waistband with his right hand. Defendant, who never saw a gun or other weapon on Torrence, claimed that, as a result of the “reaching” gesture, he felt that his life was in danger. Defendant fired his gun twice, but claimed that he did not aim or look where he was firing, and did not know whether Torrence was facing him or not.

The defense also sought to call the female participant in the June 28 three-way telephone conversation who would testify that during the conversation, her then-boyfriend said the bullet that struck defendant’s friend on June 22 was meant for defendant. The defense argued that this testimony would yield evidence of Torrence’s prior threats that were admissible on the initial aggressor and reasonableness questions. The trial court, ruling that the proposed testimony was hearsay and cumulative, denied the defense’s request.

During the People’s rebuttal case, the shooter in the June 22 incident testified that he had not been instructed by Torrence to shoot defendant, or anyone else, and that he had no reason for shooting the person he shot. On surrebuttal, the defense again sought to call the shooter’s girlfriend, this time to impeach his rebuttal testimony. The trial court, ruling that the proffered testimony was collateral and hearsay, once again precluded her testimony.

The trial court’s justification charge was the subject of extensive discussion. At a precharge conference, defense counsel noted that Torrence’s prior alleged threats against defendant bore on Torrence’s state of mind at the time of their final encounter. That is, these threats were not only relevant to the question of whether defendant’s beliefs and actions were reasonable, but were also relevant to the determination of who was the initial aggressor. In rejecting the portion of defendant’s proposed charge permitting the use of threats in the initial aggressor determination, the trial court pointed out that the circumstances of this case were not typical of most justification cases because only defendant had a weapon. The trial court also stated that the charge defendant requested would require the court to discuss that Torrence did not have a gun or other weapon at the time of the shooting.

In relevant part, the trial court charged the jury as follows:

“You have heard testimony in this case regarding what occurred on June 21, June 22 and other dates preceding July 2, 1990. In conducting your evaluation of the evidence you may or may not credit individual accounts of those prior alleged incidents and if you do find that they occurred as submitted you may or may not have occasion to consider them in connection with your evaluation of the defendant’s claim of justification or self-defense.
“As you will learn shortly any such consideration of such occurrences is limited to a specific issue in [the] law of justification. The defendant’s state of mind on July 2, 1990, at the instant of the shooting, but other than that purpose, those alleged incidents are . . . separate and distinct from the shooting that you are to evaluate and may not be brought to bear on your judgment other than as I will instruct.”

The court further stated that in order to determine whether defendant may even raise the justification defense, the jury must first decide who, during the July 2, 1990 encounter between defendant and Torrence, was the initial aggressor; however, the court explained that:

“The law does not authorize the use of deadly physical force offensively, that is non-responsively. Furthermore, the law recognizes that a person’s evaluation of whether another is about to use deadly physical force against him and whether deadly physical force is needed defensively may take into account prior violent acts or threats from the other person against the actor.
“Thus, acts or threats[,] if the jury finds that they did in fact occur[,] may be considered by the jury insofar as they bear on what the actor reasonably believed was about to occur and was necessary in response.
“However past violent acts or threats do not themselves render deadly physical force defensive, regardless of [whether] a jury believes [what] previously occurred is offensive deadly physical force. Here, testimony of prior violent acts or threats by [Torrence] against [defendant], if credited by you[,] may be relevant as to what [defendant] reasonably believed on July 2, 1990.”

Regarding the jury’s determination of the initial aggressor question, the court instructed the jury that, “whether [defendant] was or was not the aggressor will turn on what you find Derrick Torrence did or did not do on July 2, 1990[,] in the moments before he was shot[,] as well as what you find [defendant] did or did not reasonably believe on July 2, 1990[,] at the moment he fired a shot at Derrick Torrence.”

Defendant objected to the charge and again requested that the jury be instructed that Torrence’s threats were also relevant as to the question of who was the initial aggressor on July 2, 1990. The trial court again denied the request.

During deliberations the jury asked for clarification of the justification charge on four separate occasions and temporarily deadlocked on the homicide charges. After receiving a supplemental charge from the court, the jury acquitted defendant of second degree murder but found him guilty of manslaughter in the first degree and criminal possession of a weapon in the second and third degrees. Defendant was sentenced to an aggregate term of SVs to 25 years in prison. The Appellate Division affirmed the judgment of conviction. A Judge of this Court granted defendant leave to appeal, and we now affirm.

Discussion

Penal Law § 35.15 (1) (b) provides that:

“A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless: . . .
“[t]he actor was the initial aggressor.”

A trial court must charge the factfinder on the defense of justification “whenever there is evidence to support it” (People v McManus, 67 NY2d 541, 549 [1986]). Viewing the record in the light most favorable to the defendant, a court must determine whether any reasonable view of the evidence would permit the factfinder to conclude that the defendant’s conduct was justified. If such evidence is in the record, the court must provide an instruction on the defense (id.). Here, the trial court found some evidence in the record supporting the defense and, accordingly, charged the jury. Having charged the defense, however, it was incumbent upon the court to instruct that the “perceptions [and] state of mind[ ] of the participants to the encounter are critical” (People v Miller, 39 NY2d 543, 548 [1976]).

When justification is in issue, the trier of fact must first determine whether the defendant was the initial aggressor. If the answer to this question is yes, the justification defense is generally not available to defendant. If the answer to this question is no, the trier of fact must then determine whether defendant’s conduct (e.g., use of deadly force) was reasonable (see People v Goetz, 68 NY2d 96, 106 [1986]). Thus, the initial aggressor and reasonableness questions represent separate components of the justification defense (see generally Penal Law § 35.15).

With respect to the initial aggressor issue, we first affirm that Stokes v People (53 NY 164 [1873]) and People v Miller (39 NY2d 543 [1976]) remain good law. In Stokes v People, this Court held that evidence of a deceased victim’s prior threats against defendant is admissible to prove that the victim was the initial aggressor, whether or not such threats are communicated to defendant (see Stokes v People, 53 NY at 174-175; see also People v Miller, 39 NY2d at 549). The Stokes court reasoned that such threats may indicate an intent to act upon them, thereby creating a probability that the deceased victim has in fact acted upon them as the initial aggressor (see Stokes v People, 53 NY at 175). This Court subsequently observed that, even “if the defendant was not aware of the threat, the threat still is probative of the deceased’s state of mind and bears, thus, on whether the deceased was the aggressor” (People v Miller, 39 NY2d at 549, citing Stokes v People, 53 NY at 174).

Here, having instructed the jury on the use of Torrence’s prior threats against defendant for the purpose of determining defendant’s reasonableness, the trial court, based on this Court’s long-standing precedent, should have also instructed the jury that, for its initial aggressor determination, it was permitted to use the prior threats that it heard throughout the trial. Under the circumstances of this case, however, the omission in the trial court’s charge does not warrant reversal of defendant’s conviction.

We hold that the People disproved the justification defense. According to the proof adduced at trial, on July 2, 1990, Torrence did not have a weapon. He did not say anything to or make a threatening gesture towards defendant. He tried to run away. Finally, when defendant fired the gun and struck Torrence in the back of the neck, Torrence could not have been facing defendant. 6 This evidence overwhelmingly shows that defendant was the initial and only aggressor. Defendant’s use of deadly physical force was unreasonable because there is no persuasive evidence that Torrence used or was about to use deadly physical force against defendant on the night of the shooting. Thus, the shooting of Torrence was unjustified.

Because there was overwhelming evidence disproving the justification defense and no reasonable possibility that the verdict would have been different had the charge been correctly given, the error in the trial court’s justification charge was harmless (see People v Crimmins, 36 NY2d 230, 242 [1975]).

We further conclude that defendant’s remaining contentions lack merit. The trial court has discretion to admit or preclude relevant evidence based on an analysis of its probative value versus whether it confuses the main issues and misleads the jury (see People v Davis, 43 NY2d 17, 27 [1977] [“even if the evidence is proximately relevant, it may be rejected if its probative value is outweighed by the danger that its admission would prolong the trial to an unreasonable extent without any corresponding advantage (e.g., where cumulative evidence is proffered); or would confuse the main issue and mislead the jury; or unfairly surprise a party; or create substantial danger of undue prejudice to one of the parties”]; see also People v Corby, 6 NY3d 231, 234-235 [2005]; Prince, Richardson on Evidence § 4-103 [Farrell 11th ed]).

Defendant contends that the trial court on two occasions improperly precluded testimony of the female participant in the three-way telephone call on June 28. During defendant’s case-in-chief, defendant sought her testimony as to threats Torrence made against defendant a few days prior to the day of the shooting. By the time the defense made its request to the court, however, four defense witnesses, including defendant, had already testified that prior to the shooting, Torrence made numerous threats against defendant. Additionally, the proposed testimony did not relate to any threats made against defendant on the day of the shooting. Thus, we conclude that the evidence was cumulative and that the trial court properly exercised its discretion when it excluded the evidence. During surrebuttal, defendant sought her testimony to contradict the testimony of a witness concerning a matter collateral to the issues before the court. The introduction of such contradictory testimony is not generally permitted and the trial court properly excluded it (see People v Alvino, 71 NY2d 233, 247-248 [1987]).

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

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed.

      . Torrence sustained severe injuries to his cervical spine and spinal cord, and was rendered a quadriplegic.

      . Torrence’s treating physician gave similar testimony on this point.

      . Penal Law § 35.15 (2) (a) provides, in relevant part, that: “A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless: . . . [t]he actor reasonably believes that such other person is using or about to use deadly physical force.”

      . An initial aggressor who withdraws from the encounter and effectively communicates that withdrawal may be justified in using physical force if the other person persists in continuing the incident (see Penal Law § 35.15 [1] M).

      . Defendant’s claims that he was a great distance from Torrence and that he shot without looking or aiming are inconsistent with the testimony of every other witness.