author: Abdtjs-Salaam, J. Pigott, J.

text:
    [61 NE3d 488, 39 NYS3d 89]
    In the Matter of Brooke S.B., Respondent, v Elizabeth A.C.C., Respondent. R. Thomas Rankin, Esq., Attorney for the Child, Appellant. In the Matter of Estrellita A., Respondent, v Jennifer L.D., Appellant.
    Argued June 2, 2016;
    decided August 30, 2016

      POINTS OF COUNSEL

      Warshaw Burstein, LLP, New York City (Eric I. Wrubel, Linda Genero Sklaren and Alex R. Goldberg of counsel), and Goodell & Rankin, Jamestown (R. Thomas Rankin of counsel),
    for appellant in the first above-entitled proceeding.

      Susan L. Sommer, Lambda Legal Defense and Education Fund, Inc., New York City, Blank Rome LLP, New York City (Margaret Canby and Caroline Krauss-Browne of counsel), and Brett M. Figlewski, The LGBT Bar Association of Greater New York, New York City, for Brooke S.B., respondent in the first above-entitled proceeding.

      Sherry A. Bjork, Frewsburg, for Elizabeth A.C.C., respondent in the first above-entitled proceeding.

      Quatela, Hargraves & Chimeri, PLLC, Hauppauge (Christopher J. Chimeri and Margaret Schaefler of counsel), for appellant in the second above-entitled proceeding.

      Kramer Levin Naftalis & Frankel LLP, New York City (Andrew J. Estes and Jeffrey S. Trachtman of counsel), and Ger-vase & Mintz P.C., Garden City (Susan G. Mintz of counsel), for respondent in the second above-entitled proceeding.

      Legal Aid Society of Suffolk County, Inc., Central Islip (John B. Belmonte and Robert C. Mitchell of counsel), Attorney for the Child, in the second above-entitled proceeding.

      Suzanne B. Goldberg, Columbia Law School, New York City, for Richard J. Adago and others, amici curiae in the first above-entitled proceeding.

      Cleary Gottlieb Steen & Hamilton LLP, New York City (Carmine D. Boccuzzi and Daniel D. Queen of counsel), for National Association of Social Workers and others, amici curiae in the first and second above-entitled proceedings.

      Ropes & Gray LLP, New York City (Christopher Thomas Brown and Michael Y. Jo of counsel), Ropes & Gray LLP, Boston, Massachusetts (Kathryn E. Wilhelm and Joshua D. Rovenger of counsel), National Center for Lesbian Rights, San Francisco, California, American Civil Liberties Union, New York City, New York Civil Liberties Union, New York City, and New York City Gay and Lesbian Anti-Violence Project, New York City, for National Center for Lesbian Rights and others, amici curiae in the first above-entitled proceeding.

      Ropes & Gray LLP, New York City (Christopher Thomas Brown and Michael Y Jo of counsel), Ropes & Gray LLP, Boston, Massachusetts (Kathryn E. Wilhelm and Joshua D. Rovenger of counsel), National Center for Lesbian Rights, San Francisco, California, American Civil Liberties Union, New York City, and New York City Gay and Lesbian Anti-Violence Project, New York City, for National Center for Lesbian Rights and others, amici curiae in the second above-entitled proceeding.

      Latham & Watkins LLP, New York City ('Virginia F. Tent, Grant F. Wahlquist and Katelyn M. Beaudette of counsel), for Association of the Bar of the City of New York and others, amici curiae in the first above-entitled proceeding.

      Latham & Watkins LLP, New York City ("Virginia F. Tent, Grant F. Wahlquist and Katelyn M. Beaudette of counsel), for Association of the Bar of the City of New York and others, amici curiae in the second above-entitled proceeding.

      David P. Miranda, New York State Bar Association, Albany, and Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York City {Roberta A. Kaplan and Nila M. Merola of counsel), for New York State Bar Association, amicus curiae in the first above-entitled proceeding.

      Loeb & Loeb, LLP, New York City (Eugene R. Licker of counsel), for American Academy of Adoption Attorneys and others, amici curiae in the first above-entitled proceeding.

      Cahill Gordon & Reindel LLP, New York City (S. Penny Windle, Kerry Burns, Cindy Hong and Rebecca Salk of counsel), for Sanctuary for Families and others, amici curiae in the first above-entitled proceeding.

      Fried, Frank, Harris, Shriver & Jacobson LLP, New York City {Jennifer L. Colyer, Justin J. Santolli and NazE. Wehrli of counsel), for Lawyers for Children and another, amici curiae in the first and second above-entitled proceedings.
   OPINION OF THE COURT

Abdtjs-Salaam, J.

These two cases call upon us to assess the continued vitality of the rule promulgated in Matter of Alison D. v Virginia M. (77 NY2d 651 [1991])—namely that, in an unmarried couple, a partner without a biological or adoptive relation to a child is not that child’s “parent” for purposes of standing to seek custody or visitation under Domestic Relations Law § 70 (a), notwithstanding their “established relationship with the child” (77 NY2d at 655). Petitioners in these cases, who similarly lack any biological or adoptive connection to the subject children, argue that they should have standing to seek custody and visitation pursuant to Domestic Relations Law § 70 (a). We agree that, in light of more recently delineated legal principles, the definition .of “parent” established by this Court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships. Accordingly, today, we overrule Alison D. and hold that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70.

L

Matter of Brooke S.B. v Elizabeth A.C.C.

Petitioner and respondent entered into a relationship in 2006 and, one year later, announced their engagement. At the time, however, this was a purely symbolic gesture; same-sex couples could not legally marry in New York. Petitioner and respondent lacked the resources to travel to another jurisdiction to enter into a legal arrangement comparable to marriage, and it was then unclear whether New York would recognize an out-of-state same-sex union.

Shortly thereafter, the couple jointly decided to have a child and agreed that respondent would carry the child. In 2008, respondent became pregnant through artificial insemination. During respondent’s pregnancy, petitioner regularly attended prenatal doctor’s appointments, remained involved in respondent’s care, and joined respondent in the emergency room when she had a complication during the pregnancy. Respondent went into labor in June 2009. Petitioner stayed by her side and, when the subject child, a baby boy, was born, petitioner cut the umbilical cord. The couple gave the child petitioner’s last name.

The parties continued to live together with the child and raised him jointly, sharing in all major parental responsibilities. Petitioner stayed at home with the child for a year while respondent returned to work. The child referred to petitioner as “Mama B.”

In 2010, the parties ended their relationship. Initially, respondent permitted petitioner regular visits with the child. In late 2012, however, petitioner’s relationship with respondent deteriorated and, in or about July 2013, respondent effectively terminated petitioner’s contact with the child.

Subsequently, petitioner commenced this proceeding seeking joint custody of the child and regular visitation. Family Court appointed an attorney for the child. That attorney determined that the child’s best interests would be served by allowing regular visitation with petitioner.

Respondent moved to dismiss the petition, asserting that petitioner lacked standing to seek visitation or custody under Domestic Relations Law § 70 as interpreted in Alison D. because, in the absence of a biological or adoptive connection to the child, petitioner was not a “parent” within the meaning of the statute. Petitioner and the attorney for the child opposed the motion, contending that, in light of the legislature’s enactment of the Marriage Equality Act (see L 2011, ch 95; Domestic Relations Law § 10-a) and other changes in the law, Alison D. should no longer be followed. They further argued that petitioner’s long-standing parental relationship with the child conferred standing to seek custody and visitation under principles of equitable estoppel.

After hearing argument on the motion, Family Court dismissed the petition. While commenting on the “heartbreaking” nature of the case, Family Court noted that petitioner did not adopt the child and therefore granted respondent’s motion to dismiss on constraint of Alison D. The attorney for the child appealed.

The Appellate Division unanimously affirmed (see 129 AD3d 1578, 1578-1579 [4th Dept 2015]). The Court concluded that, because petitioner had not married respondent, had not adopted the child, and had no biological relationship to the child, Alison D. prohibited Family Court from ruling that petitioner had standing to seek custody or visitation (see id. at 1579). We granted the attorney for the child leave to appeal (see 26 NY3d 901 [2015]).

Matter of Estrellita A. v Jennifer L.D.

Petitioner and respondent entered into a relationship in 2003 and moved in together later that year. In 2007, petitioner and respondent registered as domestic partners, and thereafter, they agreed to have a child. The couple jointly decided that respondent would bear the child and that the donor should share petitioner’s ethnicity. In February 2008, respondent became pregnant through artificial insemination. During the pregnancy, petitioner attended medical appointments with respondent. In November 2008, respondent gave birth to a baby girl. Petitioner cut the umbilical cord. The couple agreed that the child should call respondent “Mommy” and petitioner “Mama.”

The child resided with the couple in their home and, over the next three years, the parties shared a complete range of parental responsibilities. However, in May 2012, petitioner and respondent ended their relationship, and petitioner moved out in September 2012. Afterward, petitioner continued to have contact with the child.

In October 2012, respondent commenced a proceeding in Family Court seeking child support from petitioner. Petitioner denied liability. While the support case was pending, petitioner filed a petition in Family Court that, as later amended, sought visitation with the child. The court appointed an attorney for the child.

After a hearing, Family Court granted respondent’s child support petition and remanded the matter to a support magistrate to determine petitioner’s support obligation. The court held that “the uncontroverted facts establish [ed] ” that petitioner was “a parent” to the child and, as such, “chargeable with the support of the child.” Petitioner then amended her visitation petition to indicate that she “ha[d] been adjudicated the parent” of the child and therefore was a legal parent for visitation purposes.

Thereafter, respondent moved to dismiss the visitation petition on the ground that petitioner did not have standing to seek custody or visitation under Domestic Relations Law § 70 as interpreted in Alison D. The attorney for the child supported visitation and opposed respondent’s motion to dismiss. Petitioner also opposed respondent’s motion to dismiss, asserting that Alison D. and our decision in Debra H. v Janice R. (14 NY3d 576 [2010]) did not foreclose a finding of standing based on judicial estoppel, as the prior judgment in the support proceeding determined that petitioner was a legal parent to the subject child. Respondent contended that the prerequisites for judicial estoppel had not been met.

Family Court denied respondent’s motion to dismiss the visitation petition (see 40 Misc 3d 219, 219-225 [Fam Ct, Suffolk County 2013]). Citing Alison D. and Debra H., the court acknowledged that petitioner did not have standing to petition for visitation based on equitable estoppel or her general status as a de facto parent (see id. at 225). However, given respondent’s successful support petition, the court concluded that the doctrine of judicial estoppel conferred standing on petitioner to request visitation with the child (see id. at 225). The court distinguished Alison D. and Debra H., reasoning that, in those cases, the Court “did not address the situation . . . where one party has asserted inconsistent positions” (id.). Here, in light of respondent’s initial claim that petitioner was the child’s legal parent in the support proceeding, the court “ma[de] a finding that respondent [wa]s judicially estopped from asserting that petitioner [wa]s not a parent based upon her sworn petition and testimony in a prior court proceeding where she took a different position because her interest in that case was different” (id.). Respondent filed an interlocutory appeal, which was dismissed by the Appellate Division.

Subsequently, Family Court held a hearing on the petition. The court found that petitioner’s regular visitation and consultation on matters of import with respect to the child would serve the child’s best interests. Respondent appealed.

Family Court’s order was unanimously affirmed (see 123 AD3d 1023, 1023-1027 [2d Dept 2014]). The Appellate Division determined that, while Domestic Relations Law § 70, as interpreted in Alison D., confers standing to seek custody or visitation only on a biological or adoptive parent, Alison D. does not preclude recognition of standing based upon the doctrine of judicial estoppel. Under that doctrine, the Court found, “a party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because his or her interests have changed” (id. at 1026 [internal quotation marks and citations omitted]). The Appellate Division agreed with Family Court that the requirements of judicial estoppel had been met: respondent’s position in the support proceeding was inconsistent with her position in the visitation proceeding; respondent had won a favorable judgment based on her earlier position; and allowing respondent to maintain an inconsistent position in the visitation proceeding would prejudice petitioner (see id. at 1026). Accordingly, the Appellate Division concluded that respondent was judicially-estopped from denying petitioner’s standing as a “parent” of the child within the meaning of Domestic Relations Law § 70 (see id. at 1026-1027). We granted respondent leave to appeal (see 26 NY3d 901 [2015]).

IL

Domestic Relations Law § 70 provides:

“Where a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award the natural guardianship, charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly” (Domestic Relations Law § 70 [a] [emphases added]).

Only a “parent” may petition for custody or visitation under Domestic Relations Law § 70, yet the statute does not define that critical term, leaving it to be defined by the courts.

In Alison D. (77 NY2d 651), we supplied a definition. In that case, Alison D. and Virginia M. were in a long-term relationship and decided to have a child (see Alison D., 77 NY2d at 655). They agreed that Virginia M. would carry the baby and that they would jointly raise the child, sharing parenting responsibilities (see id.). After the child was born, Alison D. acted as a parent in all major respects, providing financial, emotional and practical support (see id.). Even after the couple ended their relationship and moved out of their shared home, Alison D. continued to regularly visit the child until he was about six years old, at which point Virginia M. terminated contact between them (see id.).

Alison D. petitioned for visitation pursuant to Domestic Relations Law § 70 (see id. at 656). In support of the petition, Alison D. argued that, although Virginia M. was concededly a fit parent, Alison D. nonetheless had standing to seek visitation with the child (see id.). The lower courts dismissed Alison D.’s petition for lack of standing, ruling that only a biological parent— and not a de facto parent—is a legal “parent” with standing to seek visitation under Domestic Relations Law § 70 (see id.; see also Matter of Alison D. v Virginia M., 155 AD2d 11, 13-16 [2d Dept 1990]).

We affirmed the lower courts’ dismissal of Alison D.’s petition for lack of standing (see Alison D., 77 NY2d at 655, 657). We decided that the word “parent” in Domestic Relations Law § 70 should be interpreted to preclude standing for a de facto parent who, under a theory of equitable estoppel, might otherwise be recognized as the child’s parent for visitation purposes (see id. at 656-657). Specifically, we held that “a biological stranger to a child who is properly in the custody of his biological mother” has no “standing to seek visitation with the child under Domestic Relations Law § 70” (id. at 654-655).

We rested our determination principally on the need to preserve the rights of biological parents (see id. at 656-657). Specifically, we reasoned that, “traditionally, in this State it is the child’s mother and father who, assuming fitness, have the right to the care and custody of their child” (id. at 656). We therefore determined that the statute should not be read to permit a de facto parent to seek visitation of a child in a manner that “would necessarily impair the parents’ right to custody and control” (id. at 656-657).

Additionally, we suggested that, because the legislature expressly allowed certain non-parents—namely, grandparents and siblings—to seek custody or visitation (see Domestic Relations Law §§ 71-72), it must have intended to exclude de facto parents or parents by estoppel (see Alison D., 77 NY2d at 657). And so, because Alison D. had no biological or adoptive connection to the subject child, she had no standing to seek visitation and “no right to petition the court to displace the choice made by this fit parent in deciding what is in the child’s best interests” (id.).

Judge Kaye dissented on the ground that a person who “stands in loco parentis” should have standing to seek visitation under Domestic Relations Law § 70 (see id. at 657-662 [Kaye, J., dissenting]). Observing that the Court’s decision would “fall[ ] hardest” on the millions of children raised in nontraditional families—including families headed by same-sex couples, unmarried opposite-sex couples, and stepparents— the dissent argued that the majority had “turn[ed] its back on a tradition of reading section 70 so as to promote the welfare of the children” (id. at 658-660). The dissent asserted that, because Domestic Relations Law § 70 did not define “parent”— and because the statute made express reference to the “best interest of the child”—the Court was free to craft a definition that accommodated the welfare of the child {id.). According to the dissent, well-established principles of equity—namely, “Supreme Court’s equitable powers that complement” Domestic Relations Law § 70—supplied jurisdiction to act out of “concern for the welfare of the child” (id. at 660; see Matter of Bachman v Mejias, 1 NY2d 575, 581 [1956]; Finlay v Finlay, 240 NY 429, 433-434 [1925]; Langerman v Langerman, 303 NY 465, 471 [1952]).

At the same time, Judge Kaye in her dissent recognized that

“there must be some limitation on who can petition for visitation. Domestic Relations Law § 70 specifies that the person must be the child’s ‘parent,’ and the law additionally recognizes certain rights of biological and legal parents. . . .
“It should be required that the relationship with the child came into being with the consent of the biological or legal parent” (Alison D., 77 NY2d at 661-662 [Kaye, J., dissenting] [citations omitted]).

The dissent also noted that a properly constituted test should likely include other factors as well, to ensure that all relevant interests are protected (see id. at 661-662 [Kaye, J., dissenting]). Judge Kaye further stated in the dissent that she would have remanded Alison D. so that the lower court could engage in a two-part inquiry: first, to determine whether Alison D. stood “in loco parentis” under whatever test the Court devised; and then, “if so, whether it is in the child’s best interest to allow her the visitation rights she claims” (id. at 662).

In 1991, same-sex partners could not marry in this state. Nor could a biological parent’s unmarried partner adopt the child. As a result, a partner in a same-sex relationship not biologically related to a child was entirely precluded from obtaining standing to seek custody or visitation of that child under our definition of “parent” supplied in Alison D.

Four years later, in Matter of Jacob (86 NY2d 651 [1995]), we had occasion to decide whether “the unmarried partner of a child’s biological mother, whether heterosexual or homosexual, who is raising the child together with the biological parent, can become the child’s second parent by means of adoption” (id. at 656). We held that the adoptions sought in Matter of Jacob— “one by an unmarried heterosexual couple, the other by the lesbian partner of the child’s mother”—were “fully consistent with the adoption statute” {id.). We reasoned that, while the adoption statute “must be strictly construed,” our “primary loyalty must be to the statute’s legislative purpose—the child’s best interest” (id. at 657-658). The outcome in Matter of Jacob was to confer standing to seek custody or visitation upon unmarried, non-biological partners—including a partner in a same-sex relationship—who adopted the child, even under our restrictive definition of “parent” set forth in Alison D. (id. at 659).

Thereafter, in Matter of Shondel J. v Mark D. (7 NY3d 320 [2006]), we applied a similar analysis, holding that a “man who has mistakenly represented himself as a child’s father may be estopped from denying paternity, and made to pay child support, when the child justifiably relied on the man’s representation of paternity, to the child’s detriment” (id. at 324). We based our decision on “the best interests of the child,” emphasizing “[t]he potential damage to a child’s psyche caused by suddenly ending established parental support” (id. at 324, 330).

Despite these intervening decisions that sought a means to take into account the best interests of the child in adoption and support proceedings, we declined to revisit Alison D. when confronted with a nearly identical situation almost 20 years later. Debra H., as did Alison D., involved an unmarried same-sex couple. Petitioner alleged that they agreed to have a child, and to that end, Janice R. was artificially inseminated and bore the child. Debra H. never adopted the child. After the couple ended their relationship, Debra H. petitioned for custody and visitation (Debra H., 14 NY3d at 586-588). We declined to expand the definition of “parent” for purposes of Domestic Relations Law § 70, noting that “Alison D., in conjunction with second-parent adoption, creates a bright-line rule that promotes certainty in the wake of domestic breakups” (id. at 593).

Nonetheless, in Debra H., we arrived at a different result than in Alison D. Ultimately, we invoked the common-law doctrine of comity to rule that, because the couple had entered into a civil union in Vermont prior to the child’s birth—and because the union afforded Debra H. parental status under Vermont law—her parental status should be recognized under New York law as well (see id. at 598-601). Seeing no obstacle in New York’s public policy or comity doctrine to the recognition of the non-biological mother’s standing, we declared that “New York will recognize parentage created by a civil union in Vermont,” thereby granting standing to Debra H. to petition for custody and visitation of the subject child (id. at 600-601).

In a separate discussion, we also “reaffirm [ed] our holding in Alison D.” (id. at 589). We acknowledged the apparent tension in our decision to authorize parentage by estoppel in the support context (see Shondel J., 7 NY3d 320) and yet deny it in the visitation and custody context (see Alison D., 77 NY2d 651), but we decided that this incongruity did not fatally undermine Alison D. (see Debra H., 14 NY3d at 592-593).

Chief Judge Lippman and Judge Ciparick concurred in the result, agreeing with the majority’s comity analysis but asserting that Alison D. should be overruled (see id. at 606-609 [Ciparick, J., concurring]). This concurrence asserted that Alison D. had indeed caused the widespread harm to children predicted by Judge Kaye’s dissent (see id. at 606-607). Noting the inconsistency between Alison D. and the Court’s ruling in Shondel J., the concurrence concluded that “[sjupport obligations flow from parental rights; the duty to support and the rights of parentage go hand in hand and it is nonsensical to treat the two things as severable” (id. at 607). According to the concurrence, Supreme Court had “inherent equity powers and authority pursuant to Domestic Relations Law § 70 to determine who is a parent and what will serve the child’s best interests” (id. at 609). Echoing the dissent in Alison D., and “taking into consideration the social changes” that occurred since that decision, the concurrence called for a “flexible, multi-factored” approach to determine whether a parental relationship had been established (id. at 608).

A separate concurrence by Judge Smith in that case acknowledged the same social changes and proposed that, in the interest of insuring that “each child begins life with two parents,” an appropriate test would focus on whether “a child is conceived through [artificial insemination] by one member of a same-sex couple living together, with the knowledge and consent of the other” (id. at 611-612). Judge Smith observed that “[e]ach of these couples made a commitment to bring a child into a two-parent family, and it is unfair to the children to let the commitment go unenforced” {id. at 611).

HH HH HH

We must now decide whether, as respondents claim, the doctrine of stare decisis warrants retention of the rule established in Alison D. Under stare decisis, a court’s decision on an issue of law should generally bind the court in future cases that present the same issue (see People v Rodriguez, 25 NY3d 238, 243 [2015]; People v Taylor, 9 NY3d 129, 148-149 [2007]). The doctrine “promotes predictability in the law, engenders reliance on our decisions, encourages judicial restraint and reassures the public that our decisions arise from a continuum of legal principle rather than the personal caprice of the members of this Court” (People v Peque, 22 NY3d 168, 194 [2013]). But in the rarest of cases, we may overrule a prior decision if an extraordinary combination of factors undermines the reasoning and practical viability of our prior decision (see People v Rudolph, 21 NY3d 497, 500-503 [2013]; see id. at 505-507 [Graffeo, J., concurring]; People v Reome, 15 NY3d 188, 191-195 [2010]; People v Feingold, 7 NY3d 288, 291-296 [2006]).

Long before our decision in Alison D., New York courts invoked their equitable powers to ensure that matters of custody, visitation and support were resolved in a manner that served the best interests of the child (see Finlay, 240 NY at 433; Wilcox v Wilcox, 14 NY 575, 578-579 [1856]; see generally Guardian Loan Co. v Early, 47 NY2d 515, 520 [1979]; People ex rel. Lemon v Supreme Ct. of State of N.Y., 245 NY 24, 28 [1927]; De Coppet v Cone, 199 NY 56, 63 [1910]). Consistent with these broad equitable powers, our courts have historically exercised their “inherent equity powers and authority” in order to determine “who is a parent and what will serve a child’s best interests” (Debra H., 14 NY3d at 609 [Ciparick, J., concurring]; see also NY Const, art VI, § 7 [a]).

Domestic Relations Law § 70 evolved in harmony with these equitable practices. The statute expanded in scope from a law narrowly conferring standing in custody and visitation matters upon a legally separated, resident “husband and wife” pair (L 1909, ch 19) to a broader measure granting standing to “either parent” without regard to separation (L 1964, ch 564). The legislature made many of these changes to conform to the courts’ preexisting equitable practices (see L 1964, ch 564, § 1; Mem of Joint Legis Comm on Matrimonial and Family Laws, Bill Jacket, L 1964, ch 564 at 6). Tellingly, the statute has never mentioned, much less purported to limit, the court’s equitable powers, and even after its original enactment, courts continued to employ principles of equity to grant custody, visitation or related extra-statutory relief (see People ex rel. Meredith v Meredith, 272 App Div 79, 82-90 [2d Dept 1947], affd 297 NY 692 [1947]; Matter of Rich v Kaminsky, 254 App Div 6, 7-9 [1st Dept 1938]; cf. Langerman, 303 NY at 471-472; Finlay, 240 NY at 430-434).

Departing from this tradition of invoking equity, in Alison D., we narrowly defined the term “parent,” thereby foreclosing “all inquiry into the child’s best interest” in custody and visitation cases involving parental figures who lacked biological or adoptive ties to the child (Alison D., 77 NY2d at 659 [Kaye, J., dissenting]). And, in the years that followed, lower courts applying Alison D. were “forced to . . . permanently sever strongly formed bonds between children and adults with whom they have parental relationships” (Debra H., 14 NY3d at 606 [Ciparick, J., concurring]). By “limiting their opportunity to maintain bonds that may be crucial to their development,” the rule of Alison D. has “fall[en] hardest on the children” (Alison D., 77 NY2d at 658 [Kaye, J., dissenting]).

As a result, in the 25 years since Alison D. was decided, this Court has gone to great lengths to escape the inequitable results dictated by a needlessly narrow interpretation of the term “parent.” Now, we find ourselves in a legal landscape wherein a non-biological, non-adoptive “parent” may be estopped from disclaiming parentage and made to pay child support in a filiation proceeding (Shondel J., 7 NY3d 320), yet denied standing to seek custody or visitation (Alison D., 77 NY2d at 655). By creating a disparity in the support and custody contexts, Alison D. has created an inconsistency in the rights and obligations attendant to parenthood. Moreover, Alison D.’s foundational premise of heterosexual parenting and nonrecognition of same-sex couples is unsustainable, particularly in light of the enactment of same-sex marriage in New York State, and the United States Supreme Court’s holding in Obergefell v Hodges (576 US —, 135 S Ct 2584 [2015]), which noted that the right to marry provides benefits not only for same-sex couples, but also the children being raised by those couples.

Under the current legal framework, which emphasizes biology, it is impossible—without marriage or adoption—for both former partners of a same-sex couple to have standing, as only one can be biologically related to the child (see Alison D., 77 NY2d at 656). By contrast, where both partners in a heterosexual couple are biologically related to the child, both former partners will have standing regardless of marriage or adoption. It is this context that informs the Court’s determination of a proper test for standing that ensures equality for same-sex parents and provides the opportunity for their children to have the love and support of two committed parents.

The Supreme Court has emphasized the stigma suffered by the “hundreds of thousands of children [who] are presently being raised by [same-sex] couples” (Obergefell, 576 US at —, 135 S Ct at 2600-2601). By “fixing biology as the key to visitation rights” (Alison D., 77 NY2d at 657-658 [Kaye, J., dissenting]), the rule of Alison D. has inflicted disproportionate hardship on the growing number of nontraditional families across our state. At the time Alison D. was decided, estimates suggested that “more than 15.5 million children [did] not live with two biological parents, and that as many as 8 to 10 million children are born into families with a gay or lesbian parent” (id.). Demographic changes in the past 25 years have further transformed the elusive concept of the “average American family” (Troxel v Granville, 530 US 57, 63-64 [2000]); recent census statistics reflect the large number of same-sex couples residing in New York, and that many of New York’s same-sex couples are raising children who are related to only one partner by birth or adoption (see Gary J. Gates & Abigail M. Cooke, The Williams Institute, New York Census Snapshot: 2010 at 1-3).

Relatedly, legal commentators have taken issue with Alison D. for its negative impact on children. A growing body of social science reveals the trauma children suffer as a result of separation from a primary attachment figure—such as a de facto parent—regardless of that figure’s biological or adoptive ties to the children (see Amanda Barfield, Note, The Intersection of Same-Sex and Stepparent Visitation, 23 JL & Pol’y 257, 259-260 [2014]; Ayelet Blecher-Prigat, Rethinking Visitation: From a Parental to a Relational Right, 16 Duke J Gender L & Pol’y 1, 7 [2009]; Suzanne B. Goldberg, Family Law Cases as Law Reform Litigation: Unrecognized Parents and the Story of Alison D. v Virginia M., 17 Colum J Gender & L 307 [2008]; Mary Ellen Gill, Note, Third Party Visitation in New York: Why the Current Standing Statute Is Failing Our Families, 56 Syracuse L Rev 481, 488-489 [2006]; Joseph G. Arsenault, Comment, “Family” but not “Parent”: The Same-Sex Coupling Jurisprudence of the New York Court of Appeals, 58 Alb L Rev 813, 834, 836 [1995]; see also brief for National Association of Social Workers as amicus curiae at 13-17 [collecting articles]).

We must, however, protect the substantial and fundamental right of biological or adoptive parents to control the upbringing of their children (see Alison D., 77 NY2d at 656-657; Troxel v Granville, 530 US 57, 65 [2000]). For certainly, “the interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests,” and any infringement on that right “comes with an obvious cost” (Troxel, 530 US at 64-65). But here we do not consider whether to allow a third party to contest or infringe on those rights; rather, the issue is who qualifies as a “parent” with coequal rights. Nevertheless, the fundamental nature of those rights mandates caution in expanding the definition of that term and makes the element of consent of the biological or adoptive parent critical.

While “parents and families have fundamental liberty interests in preserving” intimate family-like bonds, “so, too, do children have these interests” (Troxel, 530 US at 88-89 [Stevens, J., dissenting]), which must also inform the definition of “parent,” a term so central to the life of a child. The “bright-line” rule of Alison D. promotes the laudable goals of certainty and predictability in the wake of domestic disruption (Debra H., 14 NY3d at 593-594). But bright lines cast a harsh light on any injustice and, as predicted by Judge Kaye, there is little doubt by whom that injustice has been most finely felt and most finely perceived (see Alison D., 77 NY2d at 658 [Kaye, J., dissenting]). We will no longer engage in the “deft legal maneuvering” necessary to read fairness into an overly-restrictive definition of “parent” that sets too high a bar for reaching a child’s best interest and does not take into account equitable principles (see Debra H., 14 NY3d at 606-608 [Cipar-ick, J., concurring]). Accordingly, we overrule Alison D.

IV.

Our holding that Domestic Relations Law § 70 permits a non-biological, non-adoptive parent to achieve standing to petition for custody and visitation requires us to specify the limited circumstances in which such a person has standing as a “parent” under Domestic Relations Law § 70 (see Alison D., 77 NY2d at 661 [Kaye, J., dissenting]; Troxel, 530 US at 67). Because of the fundamental rights to which biological and adoptive parents are undeniably entitled, any encroachment on the rights of such parents and, especially, any test to expand who is a parent, must be, as Judge Kaye acknowledged in her dissent in Alison D., appropriately narrow.

Petitioners and some of the amici urge that we endorse a functional test for standing, which has been employed in other jurisdictions that recognize parentage by estoppel in the custody and/or visitation context (see In re Custody of H.S.H-K., 193 Wis 2d 649, 694-695, 533 NW2d 419, 435-436 [1995] [visitation only]; see also Conover v Conover, 448 Md 548, 576-577, 141 A3d 31, 47-48 [2016] [collecting cases from other jurisdictions that have adopted the functional test in contexts of custody or visitation]). The functional test considers a variety of factors, many of which relate to the post-birth relationship between the putative parent and the child. Amicus Sanctuary for Families proposes a different test that hinges on whether petitioner can prove, by clear and convincing evidence, that a couple “jointly planned and explicitly agreed to the conception of a child with the intention of raising the child as co-parents” (brief for Sanctuary for Families as amicus curiae at 39).

Although the parties and amici disagree as to what test should be applied, they generally urge us to adopt a test that will apply in determining standing as a parent for all non-biological, non-adoptive, non-marital “parents” who are raising children. We reject the premise that we must now declare that one test would be appropriate for all situations, or that the proffered tests are the only options that should be considered.

Petitioners in the two cases before us have alleged that the parties entered into a pre-conception agreement to conceive and raise a child as co-parents. We hold that these allegations, if proved by clear and convincing evidence, are sufficient to establish standing. Because we necessarily decide these cases based on the facts presented to us, it would be premature for us to consider adopting a test for situations in which a couple did not enter into a pre-conception agreement. Accordingly, we do not now decide whether, in a case where a biological or adoptive parent consented to the creation of a parent-like relationship between his or her partner and child after conception, the partner can establish standing to seek visitation and custody.

Inasmuch as the conception test applies here, we do not opine on the proper test, if any, to be applied in situations in which a couple has not entered into a pre-conception agreement. We simply conclude that, where a petitioner proves by clear and convincing evidence that he or she has agreed with the biological parent of the child to conceive and raise the child as co-parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child. Whether a partner without such an agreement can establish standing and, if so, what factors a petitioner must establish to achieve standing based on equitable estoppel are matters left for another day, upon a different record.

Additionally, we stress that this decision addresses only the ability of a person to establish standing as a parent to petition for custody or visitation; the ultimate determination of whether those rights shall be granted rests in the sound discretion of the court, which will determine the best interests of the child.

V.

We conclude that a person who is not a biological or adoptive parent may obtain standing to petition for custody or visitation under Domestic Relations Law § 70 (a) in accordance with the test outlined above.

In Brooke S.B., our decision in Alison D. prevented the courts below from determining standing because the petitioner was not the biological or adoptive parent of the child. That decision no longer poses any obstacle to those courts’ consideration of standing by equitable estoppel here, if Brooke S.B. proves by clear and convincing evidence her allegation that a pre-conception agreement existed. Accordingly, in Brooke S.B., the order of the Appellate Division should be reversed, without costs, and the matter remitted to Family Court for further proceedings in accordance with this opinion.

In Estrellita A., the courts below correctly resolved the question of standing by recognizing petitioner’s standing based on judicial estoppel. In the child support proceeding, respondent obtained an order compelling petitioner to pay child support based on her successful argument that petitioner was a parent to the child. Respondent was therefore estopped from taking the inconsistent position that petitioner was not, in fact, a parent to the child for purposes of visitation. Under the circumstances presented here, Family Court properly invoked the doctrine of judicial estoppel to recognize petitioner’s standing to seek visitation as a “parent” under Domestic Relations Law § 70 (a). Accordingly, in Estrellita A., the order of the Appellate Division should be affirmed, without costs.

Pigott, J.

(concurring). While I agree with the application of judicial estoppel in Matter of Estrellita A. v Jennifer L.D., and that the Appellate Division’s decision in Matter of Brooke S.B. v Elizabeth A.C.C. should be reversed and the case remitted to Supreme Court for a hearing, I cannot join the majority’s opinion overruling Matter of Alison D. v Virginia M. (77 NY2d 651 [1991]). The definition of “parent” that we applied in that case was consistent with the legislative history of Domestic Relations Law § 70 and the common law, and despite several opportunities to do so, the legislature has never altered our conclusion. Rather than craft a new definition to achieve a result the majority perceives as more just, I would retain the rule that parental status under New York law derives from marriage, biology or adoption and decide Brooke S.B. on the basis of extraordinary circumstances. As we have said before, “any change in the meaning of ‘parent’ under our law should come by way of legislative enactment rather than judicial revamping of precedent” (Debra H. v Janice R., 14 NY3d 576, 596 [2010]).

It has long been the rule in this state that, absent extraordinary circumstances, only parents have the right to seek custody or visitation of a minor child (see Domestic Relations Law § 70 [a] [“Where a minor child is residing within this state, either parent may apply to the . . . court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court. . . may award the natural guardianship, charge and custody of such child to either parent”]). The legislature has not seen the need to define that term, and in the absence of a statutory definition, our Court has consistently interpreted it in the most obvious and colloquial sense to mean a child’s natural parents or parents by adoption (see e.g. People ex rel. Portnoy v Strasser, 303 NY 539, 542 [1952] [“No court can, for any but the gravest reasons, transfer a child from its natural parent to any other person”]; People ex rel. Kropp v Shepsky, 305 NY 465, 470 [1953]; see also Domestic Relations Law § 110 [defining adoption as a legal act whereby an adult acquires the rights and responsibilities of a parent with respect to the adoptee]). Thus, in Matter of Ronald FF. v Cindy GG., we held that a man who lacked biological or adoptive ties to a child born out of wedlock could not interfere with a fit biological mother’s right to determine who may associate with her child because he was not a “parent” within the meaning of Domestic Relations Law § 70 (70 NY2d 141, 142 [1987]).

We applied the same rule to a same-sex couple in Matter of Alison D. v Virginia M., holding that a biological stranger to a child who neither adopted the child nor married the child’s biological mother before the child’s birth lacked standing to seek visitation (77 NY2d 651, 656-657 [1991]). The petitioner in that case conceded she was not the child’s “parent” within the meaning of Domestic Relations Law § 70 but argued that her relationship with the child, as a nonparent, entitled her to seek visitation over the objection of the child’s indisputably fit biological mother. Framed in those terms, the answer was easy: the petitioner’s concession that she was not a parent of the child, coupled with the statutory language in Domestic Relations Law § 70 “giv[ing] parents the right to bring proceedings to ensure their proper exercise of [a child’s] care, custody and control,” deprived the petitioner of standing to seek visitation (id. at 657).

Notwithstanding the fact that it may be “beneficial to a child to have continued contact with a nonparent” in some cases (id.), we declined to expand the word “parent” in section 70 to include individuals like the petitioner who were admittedly nonparents but who had developed a close relationship with the child. Our reasoning was that, where the legislature had intended to allow other categories of persons to seek visitation, it had expressly conferred standing on those individuals and given courts the power to determine whether an award of visitation would be in the child’s best interest (see id.). Specifically, the legislature had previously provided that “[w]here circumstances show that conditions exist which equity would see fit to intervene,” a brother, sister or grandparent of a child may petition to have such child brought before the court to “make such directions as the best interest of the child may require, for visitation rights for such brother or sister [or grandparent or grandparents] in respect to such child” (Domestic Relations Law §§ 71, 72 [1]). The legislature had also codified the common-law marital presumption of legitimacy for children conceived by artificial reproduction, so that any child born to a married woman by means of artificial insemination was deemed the legitimate, birth child of both spouses (see Domestic Relations Law § 73 [1]). In the absence of further legislative action defining the term “parent” or giving other nonparents the right to petition for visitation, we determined that a non-biological, non-adoptive parent who had not married the child’s biological mother lacked standing under the law (77 NY2d at 657).

Our Court reaffirmed Alison D.’s core holding just six years ago in Debra H. v Janice R. (14 NY3d 576 [2010]). Confronting many of the same arguments petitioners raise in these appeals, we rejected the impulse to judicially enlarge the term “parent” beyond marriage, biology or adoption. We observed that in the nearly 20 years that had passed since our decision in Alison D., other states had legislatively expanded the class of individuals who may seek custody and/or visitation of a child (see id. at 596-597, citing Ind Code Ann §§ 31-17-2-8.5, 31-9-2-35.5; Colo Rev Stat Ann § 14-10-123; Tex Fam Code Ann § 102.003 [a] [9]; Minn Stat Ann § 257C.08 [4]; DC Code Ann § 16-831.01 [1]; Or Rev Stat Ann § 109.119 [1]; Wyo Stat Ann § 20-7-102 [a]). Our State had not—and has not, to this day. In the face of such legislative silence, we refused to undertake the kind of policy analysis reserved for the elected representatives of this State, who are better positioned to “conduct hearings and solicit comments from interested parties, evaluate the voluminous social science research in this area . . . , weigh the consequences of various proposals, and make the tradeoffs needed to fashion the rules that best serve the population of our state” (id. at 597).

The takeaway from Debra H. is that Alison D. didn’t break any new ground or retreat from a broader understanding of parenthood. It showed respect for the role of the legislature in defining who a parent is, and held, based on the legislative guidance before us, that the term was intended to include a child’s biological mother and father, a child’s adoptive parents, and, pursuant to a statute enacted in 1974, the spouse of a woman to whom a child was born by artificial insemination. Although many have complained that this standard “is formulaic, or too rigid, or out of step with the times” {id. at 594), such criticism is properly directed at the legislature, who in the 107 years since Domestic Relations Law § 70 was enacted has chosen not to amend that section or define the term “parent” to include persons who establish a loving parental bond with a child, though they lack a biological or adoptive tie.

To be sure, there was a time when our interpretation of “parent” put same-sex couples on unequal footing with their heterosexual counterparts. When Alison D. was decided, for example, it was impossible for both members of a same-sex couple to become the legal parents of a child born to one partner by artificial insemination, because same-sex couples were not permitted to marry or adopt. Our Court eventually held that the adoption statute permitted unmarried same-sex partners to obtain second-parent adoptions (see Matter of Jacob, 86 NY2d 651, 656 [1995]), but it was not until 2011 that the legislature put an end to all sex-based distinctions in the law (see Domestic Relations Law § 10-a).

The legislature’s passage of the Marriage Equality Act granted same-sex couples the right to marry and made clear that “[n]o government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage . . . shall differ based on the parties to the marriage being or having been of the same sex rather than a different sex” (Domestic Relations Law § 10-a [2]). Having mandated gender neutrality with respect to every legal benefit and obligation arising from marriage, and eliminated every sex-based distinction in the law and common law, the legislature has formally declared its intention that “[s]ame-sex couples should have the same access as others to the protections, responsibilities, rights, obligations, and benefits of civil marriage” (L 2011, ch 95, § 2).

Same-sex couples are now afforded the same legal rights as heterosexual couples and are no longer barred from establishing the types of legal parent-child relationships that the law had previously disallowed. Today, a child born to a married person by means of artificial insemination with the consent of the other spouse is deemed to be the child of both spouses, regardless of the couple’s sexual orientation (2-22 NY Civil Practice: Family Court Proceedings § 22.08 [1] [Matthew Bender]; Laura WW. v Peter WW., 51 AD3d 211, 217-218 [3d Dept 2008] [holding that a child born to a married woman is the legitimate child of both parties and that, absent evidence to the contrary, the spouse of the married woman is presumed to have consented to such status]; Matter of Kelly S. v Farah M., 139 AD3d 90, 103-104 [2d Dept 2016] [finding that the failure to strictly comply with the requirements of Domestic Relations Law § 73 did not preclude recognition of a biological mother’s former same-sex partner as a parent to the child conceived by artificial insemination during the couple’s domestic partnership]; Wendy G-M. v Erin G-M., 45 Misc 3d 574, 593 [Sup Ct, Monroe County 2014] [applying the marital presumption to a child born of a same-sex couple married in Connecticut]). And if two individuals of the same sex choose not to marry but later conceive a child by artificial insemination, the non-biological parent may now adopt the child through a second-parent adoption.

The Marriage Equality Act and Matter of Jacob have erased any obstacles to living within the rights and duties of the Domestic Relations Law. The corollary is, absent further legislative action, an unmarried individual who lacks a biological or adoptive connection to a child conceived after 2011 does not have standing under Domestic Relations Law § 70, regardless of gender or sexual orientation. Unlike the majority, I would leave it to the legislature to determine whether a broader category of persons should be permitted to seek custody or visitation under the law. I remain of the view, as I was in Debra H., that we should not “preempt our Legislature by sidestepping section 70 of the Domestic Relations Law as presently drafted and interpreted in Alison D. to create an additional category of parent . . . through the exercise of our common-law and equitable powers” (14 NY3d at 597).

I do agree, however, with the results the majority has reached in these cases. The Marriage Equality Act did not benefit the same-sex couples before us in these appeals, who entered into committed relationships and chose to rear children before they were permitted to exercise what our legislature and the Supreme Court of the United States have now declared a fundamental human right (see generally Obergefell v Hodges, 576 US —, 135 S Ct 2584 [2015]). That Brooke and Elizabeth did not have the same opportunity to marry one another before they decided to have a family means that the couple (and the child born to them through artificial insemination) did not receive the same legal protection our laws would have provided a child born to a heterosexual couple under similar circumstances. That is, the law did not presume—as it would have for a married heterosexual couple—that any child born to one of the women during their relationship was the legitimate child of both.

In my view, this inequality and the substantial changes in the law that have occurred since our decision in Debra H. constitute extraordinary circumstances that give these petitioners standing to seek visitation (see Ronald FF., 70 NY2d at 144-145 [barring the State from interfering with a parent’s “(fundamental) right ... to choose those with whom her child associates” unless it “shows some compelling State purpose which furthers the child’s best interest”]). Namely, each couple agreed to conceive a child by artificial insemination at a time when they were not allowed to marry in New York and intended to raise the child in the type of relationship the couples would have formalized by marriage had our State permitted them to exercise that fundamental human right. On the basis of these facts, I would remit the matter in Brooke S.B. to Supreme Court for a hearing to determine whether it would be in the child’s best interest to have regular visitation with petitioner. As the majority correctly concludes, the petitioner in Estrellita A. has standing by virtue of judicial estoppel (majority op at 29).

Matter of Brooke S.B. v Elizabeth A.C.C.: Order reversed, without costs, and matter remitted to Family Court, Chautauqua County, for further proceedings in accordance with the opinion herein.

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

Matter of Estrellita A. v Jennifer L.D.: Order affirmed, without costs.

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

      . The parties in both cases before us dispute the relevant facts. Given the procedural posture of these cases, our summary of the facts is derived from petitioners’ allegations in court filings and relevant decisions of the courts below.

      . Petitioner appealed but, citing her financial condition, proceeded without an attorney. Her appeal was subsequently dismissed.

      . We note that by the use of the term “either,” the plain language of Domestic Relations Law § 70 clearly limits a child to two parents, and no more than two, at any given time.

      . Furthermore, in Matter of H.M. v E.T. (14 NY3d 521 [2010]), for purposes of child support proceedings, we construed Family Ct Act § 413 (1) (a) in a manner consistent with principles of equitable estoppel by interpreting the term “parents” to include a biological parent’s former same-sex partner, notwithstanding the lack of a biological or adoptive connection to the child (H.M., 14 NY3d at 526-527).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    [63 NE3d 1136, 41 NYS3d 192]
    In the Matter of Alan M. Simon, a Justice of the Spring Valley Village Court and the Ramapo Town Court, Rockland County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued September 7, 2016;
    decided October 20, 2016

      POINTS OF COUNSEL

      Kantor, Davidoff, Mandelker, Twomey, Gallanty & Kesten, P.C., New York City (Lawrence A. Mandelker of counsel), and Joseph A. Maria, P.C., White Plains, for petitioner.

      Robert H. Tembeckjian, Commission on Judicial Conduct, Albany {Edward Lindner, Mary C. Farrington, Mark Levine and Pamela Tishman of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

At the request of petitioner, Alan M. Simon, we review a determination of the State Commission on Judicial Conduct, which sustained six charges of misconduct against petitioner and recommended that he be removed from his judicial offices. Petitioner has been a Justice of the Spring Valley Village Court since 2005 and a Justice of the Ramapo Town Court since 2011. He also was appointed an Acting Justice of the Hillburn Village Court in 2016.

In seeking review, petitioner “concedes his misconduct,” but he challenges the Commission’s recommendation that he be removed (see Judiciary Law § 44 [7]). Specifically, petitioner contends that, in lieu of removal, we should direct that he be censured and restored to his judicial offices. We reject that contention and accept the determined sanction of removal.

In matters involving judicial misconduct we have broad statutory and constitutional authority to determine the appropriate sanction (see Matter of Aldrich v State Commn. on Jud. Conduct, 58 NY2d 279, 282 [1983], rearg denied 59 NY2d 967 [1983]). Judicial misconduct cases involve “institutional and collective judgment calls based on assessment of their individual facts, in relation to prevailing standards of judicial behavior and the prospect of future misconduct and continued judicial service” (Matter of Roberts, 91 NY2d 93, 97 [1997]). “[W]e have long defined the purpose of a judicial disciplinary proceeding not in terms of punishment for its own sake, ‘but [for] the imposition of sanctions where necessary to safeguard the Bench from unfit incumbents’ ” (Matter of Restaino [State Commn. on Jud. Conduct], 10 NY3d 577, 589 [2008], quoting Matter of Duckman, 92 NY2d 141, 152 [1998]).

The ultimate sanction of removal typically is “reserved for ‘truly egregious circumstances’ that extend beyond the limits of ‘even extremely poor judgment’ ” (Restaino, 10 NY3d at 589, quoting Matter of Kiley, 74 NY2d 364, 369, 370 [1989]), but it must also be kept in mind “that the ‘truly egregious’ standard is measured with due regard to the higher standard of conduct to which judges are held” (Restaino, 10 NY3d at 589-590 [some internal quotation marks omitted]). Removal thus is warranted when a judge exhibits “a pattern of injudicious behavior . . . which cannot be viewed as acceptable conduct by one holding judicial office” (Matter of VonderHeide [State Commn. on Jud. Conduct], 72 NY2d 658, 660 [1988]) or an “abuse[ ] [of] the power of his [or her] office in a manner that. . . has irredeemably damaged public confidence in the integrity of his [or her] court” (Matter of McGee v State Commn. on Jud. Conduct, 59 NY2d 870, 871 [1983]).

Here, the Commission held, and petitioner concedes, that he violated these Rules Governing Judicial Conduct:

22 NYCRR 100.1 (entitled, “A judge shall uphold the integrity and independence of the judiciary”);

22 NYCRR 100.2 (A) (“A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”);

22 NYCRR 100.2 (C) (“A judge shall not lend the prestige of judicial office to advance the private interests of. . . others”);

22 NYCRR 100.3 (B) (1) (“A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor or fear of criticism”);

22 NYCRR 100.3 (B) (3) (“A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity . . .”);

22 NYCRR 100.3 (B) (6) (“A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law . . .”);

22 NYCRR 100.3 (C) (1) (“A judge shall diligently discharge the judge’s administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business”); and

22 NYCRR 100.5 (A) (1) (c) and (d) (“Neither a sitting judge nor a candidate for public election to judicial office shall directly or indirectly engage in any political activity .... Prohibited political activity shall include . . . [c] engaging in any partisan political activity . . . [and] [d] participating in any political campaign for any office or permitting his or her name to be used in connection with any activity of a political organization”).

The misconduct giving rise to that concession “qualifies as ‘truly egregious’ ” (Restaino, 10 NY3d at 590). The record reflects that, among other things, petitioner used a sanction—a tool meant to “shield” from frivolous conduct—as a “sword” to punish a legal services organization for a perceived slight in an inexcusable and patently improper way (see 22 NYCRR 130-1.1 [a] [authorizing the imposition of sanctions, but precluding town and village courts from applying such penalties]). The record is also replete with instances in which petitioner used his office and standing as a platform from which to bully and to intimidate. To that end, it is undisputed that petitioner engaged in ethnic smearing and name-calling and repeatedly displayed poor temperament—perhaps most significantly, by engaging in a physical altercation with a student worker.

Those actions are representative of an even more serious problem. Petitioner—in what allegedly was a grossly misguided attempt to motivate—repeatedly threatened to hold various officials and employees of the Village of Spring Valley in contempt without cause or process. Those threats “exceeded all measure of acceptable judicial conduct” (Matter of Blackburne [State Commn. on Jud. Conduct], 7 NY3d 213, 221 [2006]), and we are particularly troubled by the testimony of one court officer, who suggested that petitioner’s threats were so common that they became “a joke.” The matter may have been a laughing one to that officer, but it was not to others.

Significantly, too, petitioner’s hectoring extended beyond the courthouse. In what ostensibly was an attempt to undermine a former co-judge and an apparent political adversary, petitioner willfully injected himself into the political process involving the election of an office other than his own. All of the foregoing actions reflect a pattern of calculated misconduct that militates against petitioner’s assertion that the misbehavior complained of will not be repeated if he is allowed to remain on the bench. Petitioner’s misconduct apparently was tempered only by the intervention of the Commission, and at the hearing held with respect to this matter he appeared unrepentant and evasive, testifying falsely on at least two occasions in an attempt to minimize his misconduct—all of which renders suspect his guarantees of better behavior.

Accordingly, the determined sanction should be accepted, without costs, and Alan M. Simon removed from the offices of Justice of the Spring Valley Village Court, Rockland County, and Justice of the Ramapo Town Court, Rockland County.

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

Determined sanction accepted, without costs, and Alan M. Simon removed from the offices of Justice of the Spring Valley Village Court, Rockland County, and Justice of the Ramapo Town Court, Rockland County.

      . By operation of the New York State Constitution, petitioner is “ineligible to hold other judicial office” (NY Const, art VI, § 22 [h]).

      . Petitioner also claims that the Commission ignored the theory of the case that he presented to it, namely, that he acknowledged that his misconduct was not justified, but that “his motives were to protect the independence and integrity of the court from the undue influence of a corrupt mayor and improve its efficiency.” Even assuming the truth of that representation, the “means” by which petitioner attempted to effectuate those “ends” are unacceptable.


author: Garcia, J.

text:
    [63 NE3d 1140, 41 NYS3d 196]
    The People of the State of New York, Appellant, v Dru Allard, Respondent.
    Argued September 6, 2016;
    decided October 20, 2016

      POINTS OF COUNSEL

      Eric Gonzalez, Acting District Attorney, Brooklyn (Thomas M. Ross and Leonard Joblove of counsel), for appellant.

      Lynn W.L. Fahey, Appellate Advocates, New York City CJoshua M. Levine of counsel), for respondent.
   OPINION OF THE COURT

Garcia, J.

Defendant Dru Allard moved to dismiss the indictment pursuant to CPL 30.30 on the ground that he was denied his statutory right to a speedy trial. Among other things, defendant alleged that the People should be charged with the 97-day period between Supreme Court’s dismissal of all felony counts in the indictment, and the People’s service of a new indictment. Defendant argued that “[t]he absence of a valid indictment during this period . . . directly impaired the People’s ability to proceed to trial and as such must be charged.” Defendant’s moving papers requested summary dismissal of the indictment or that “a hearing be held to determine the facts.”

In opposition, the People argued, among other things, that 32 of those 97 days were excludable as “delay occasioned by exceptional circumstances” under CPL 30.30 (4) (g) because “the complaining witness was on vacation in Egypt and beyond the control of the People,” and the People could not re-present the case to the grand jury until his return. Defendant did not file reply papers.

Supreme Court denied defendant’s motion without a hearing. Defendant appealed and, in response, the People claimed that defendant’s CPL 30.30 arguments were unpreserved.

The Appellate Division remitted to Supreme Court for a hearing on the motion, holding the appeal in abeyance in the interim (113 AD3d 624 [2d Dept 2014]). The Court held that, “[c]ontrary to the People’s contention, the defendant’s claim that the summary denial was error is properly preserved for appellate review” (id. at 625). The Appellate Division also determined that defendant was entitled to a hearing pursuant to CPL 210.45 (5) because the People failed, as required by the statute, to conclusively refute defendant’s motion with "unquestionable documentary proof” (id. at 626 [citation and internal quotation marks omitted]).

Supreme Court thereafter conducted a hearing on defendant’s CPL 30.30 motion. The People presented testimony from the complaining witness—now returned from vacation—and a former Assistant District Attorney previously assigned to defendant’s case. Defense counsel crQSS-examined each witness, eliciting testimony regarding the circumstances surrounding the complainant’s travel abroad and the People’s efforts to, secure his testimony in advance of his departure. After the hearing, both parties filed post-hearing submissions. Defendant argued, among other things, that the People failed to make the requisite showing of “due diligence” required to invoke CPL 30.30 (4) (g).

Supreme Court held that “the People failed to conclusively demonstrate that they attempted with due diligence to make the complainant available.” Finding that the 32 days “while the complainant was unavailable to testify should be charged to the People,” Supreme Court concluded that the People exceeded their six-month speedy trial period. The Appellate Division agreed, granting defendant’s CPL 30.30 motion to dismiss the indictment (128 AD3d 1081 [2d Dept 2015]). A Judge of this Court granted leave to appeal (26 NY3d 965 [2015]), and we now affirm.

On appeal, the People do not challenge the merits of defendant’s CPL 30.30 claim. Rather, the People contend that the Appellate Division erred in concluding that defendant’s claim was “properly preserved for appellate review” (113 AD3d at 625) because defendant failed to comply with this Court’s “well established” procedure for preserving an argument in a CPL 30.30 motion (People v Beasley, 16 NY3d 289, 292 [2011]). Pursuant to that procedure, a defendant bears the initial burden of alleging that the People were not ready for trial within the statutorily prescribed time period (People v Goode, 87 NY2d 1045, 1047 [1996]). The People, in opposition, “must ordinarily identify the exclusions on which they intend to rely” (People v Luperon, 85 NY2d 71, 78 [1995]). A defendant “preserves challenges to the People’s reliance on those exclusions for appellate review by identifying any legal or factual impediments to the use of those exclusions” (Goode, 87 NY2d at 1047 [brackets and internal quotation marks omitted]). The parties do not dispute that, in this case, defendant did not file a reply identifying any “legal or factual impediments” to the People’s proffered exclusions.

Invoking CPL 210.45, defendant contends that he was not required to challenge the People’s claimed exclusions in a reply because he was statutorily entitled to a hearing. Specifically, pursuant to CPL 210.45, once “all papers of both parties have been filed,” including any “documentary evidence,” the motion court must determine “whether the motion is determinable without a hearing to resolve questions of fact” (CPL 210.45 [3]). The court may deny the motion without a hearing only if, as relevant here, the People have “conclusively refuted” an allegation of fact essential to support the motion “by unquestionable documentary proof” (CPL 210.45 [5] [c]).

In this appeal, the parties ask us to reconcile their perceived tension between CPL 210.45 and our established procedure for preserving a statutory speedy trial argument. In essence, the People argue that, because defendant did not reply, defendant failed to preserve his CPL 30.30 arguments, including his request for a hearing, for appellate review. But such a rigid interpretation of our established procedure is not mandated by our case law, nor is it consistent with this Court’s functional approach to preservation.

Our cases applying the “basic rules of preservation” in the context of CPL 30.30 motions do not purport to affect the governing procedural rules mandated by statute (Luperon, 85 NY2d at 78). Indeed, CPL 210.45 furnishes the general procedure applicable to all motions to dismiss an indictment— including, among others, motions based on defective grand jury proceedings, untimely prosecutions, a defendant’s immunity, and CPL 30.30 grounds (CPL 210.20 [1]). Accordingly, pursuant to CPL 210.45, unless the People’s opposition “conclusively refuted” defendant’s motion “by unquestionable documentary proof,” Supreme Court could not deny the motion without conducting a hearing (CPL 210.45 [5] [c]). Here, while the People’s opposition sufficiently demonstrated “that there [wa]s a factual dispute which must be resolved at a hearing” (People v Gruden, 42 NY2d 214, 217 [1977]), it was inadequate to warrant summary denial of the motion. As such, defendant was entitled to the hearing he requested in his moving papers (CPL 210.45 [5] [c]).

Our case law setting forth the procedure for preserving a CPL 30.30 argument is consistent with this application of CPL 210.45. Pursuant to CPL 470.05 (2), to present a preserved “question of law,” a party claiming error must raise their challenge “at the time of” the trial court’s ruling, or “at any subsequent time when the [trial] court had an opportunity of effectively changing the same.” To that end, our case law establishes that, where nothing in the record “would have alerted the trial court” to a defendant’s CPL 30.30 claims, those claims are unpreserved for appellate review (Beasley, 16 NY3d at 292). A defendant’s challenges to the People’s claimed exclusions may be raised in a reply filing or, alternatively, they may be raised at a hearing on the motion, if one is held. By raising challenges to the People’s claimed exclusions in a reply or during a CPL 30.30 hearing, a defendant adequately brings his claims “to the attention of the trial court at a time and in a way that g[i]ve[s] the [trial court] the opportunity to remedy the problem and thereby avert reversible error” (Luperon, 85 NY2d at 78; see also CPL 470.05 [2]).

In the absence of a hearing, a defendant’s substantive CPL 30.30 arguments will be unpreserved where the defendant failed to otherwise raise them, for instance, “in his initial submission or in a reply” (Beasley, 16 NY3d at 292-293). Accordingly, a defendant would be well-advised to raise any CPL 30.30 arguments in a reply so as to ensure their preservation. For instance, where a defendant mistakenly believes that the People failed to “conclusively refute [ ]” his motion (CPL 210.45 [5] [c])—and therefore opts not to reply—the defendant risks summary denial of his motion, leaving him with an unsuccessful and unpreserved claim. However, a defendant’s failure to reply is not fatal to his claim where, as here, the defendant properly requests and receives a hearing and, at that hearing, his arguments are raised and developed (People v Jones, 21 NY3d 449, 454 [2013]).

In this case, defendant adequately preserved his challenges to the People’s claimed exclusions, and the merits of defendant’s motion are not challenged here. Accordingly, the order of the Appellate Division should be affirmed.

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

Order affirmed.

       We recognize that, if a defendant waits until the hearing to identify the legal and factual impediments to the People’s claimed exclusions, the People may be required to present proof regarding every exclusion, resulting in needlessly lengthy hearings. However, hearing courts can address this potential issue by, for instance, holding a prehearing conference to narrow the scope of the hearing or directing the defendant to notify the People, in advance of the hearing, of the periods he intends to challenge. Of course, only those periods for which the People have not provided “unquestionable documentary proof”—for example, a transcript or letter evidencing defendant’s consent—need be addressed at any hearing.


author: Chief Judge DiFiore.

text:
    [63 NE3d 1144, 41 NYS3d 200]
    The People of the State of New York, Appellant, v Nnamdi Clarke, Respondent.
    Argued September 6, 2016;
    decided October 25, 2016

      POINTS OF COUNSEL

      Richard A. Brown, District Attorney, Kew Gardens (Sharon Y Brodt, Robert J. Masters and John M. Castellano of counsel), for appellant.

      Lynn W.L. Fahey, Appellate Advocates, New York City CWilliam G. Kastin of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge DiFiore.

On this appeal, we are asked to review whether the Appellate Division erred in holding that the People were chargeable with the period of delay of 161 days for DNA testing after having failed to exercise due diligence in seeking defendant’s DNA exemplar in order to conduct comparative testing with the DNA obtained by the Office of Chief Medical Examiner (OCME) from the gun that was the subject of weapons offenses charged in the indictment. We hold that the Appellate Division properly determined that the People did not exercise due diligence in obtaining defendant’s DNA exemplar and, based on that pros-ecutorial inaction, the 161-day period at issue was not excludable from CPL 30.30 speedy trial computation as an exceptional circumstance.

This criminal action commenced when defendant was charged by felony complaint on November 29, 2007 in Criminal Court (see People v Osgood, 52 NY2d 37, 43 [1980]). Defendant was arraigned on December 3, 2007 and, after a period of pre-indictment delay for which defendant waived his CPL 30.30 rights, he was indicted on August 18, 2008. Defendant was charged with attempted murder in the first degree, criminal possession of a weapon in the second degree, and other related charges.

In May 2009, almost nine months after defendant’s indictment, the People moved for an order to take an oral swab from defendant to obtain his DNA sample for comparison with the DNA results obtained from the swabs of the gun by OCME. There is no dispute that there was an OCME lab report, dated February 11, 2008, that plainly indicated that DNA was found on the swabs from the recovered gun. The report stated that “[further analysis could be done upon submission of a blood or saliva sample from a suspect” and provided that such testing would “require approximately 60 days.” Noting that his client had “been incarcerated for some time now,” defense counsel declared his readiness for trial and argued that the ensuing delay for the DNA testing should be chargeable to the People. On June 5, 2009, defendant consented to the taking of an oral swab and on November 13, 2009, the People produced the DNA report.

Defendant moved to dismiss the indictment pursuant to CPL 30.30, arguing that “[t]he People waited one year and four months to begin a DNA analysis of an object. . . three of their witnesses claimed he possessed,” that the delay was “without justification,” and that a period in excess of six months had elapsed, violating defendant’s right to a speedy trial. The People opposed the motion citing various CPL 30.30 (4) exceptions, including CPL 30.30 (4) (g), asserting that the period of delay attributable to the DNA testing was an exceptional circumstance under the statute. On June 9, 2010, the court denied defendant’s CPL 30.30 motion without a hearing, finding a relevant portion of the period at issue excludable under CPL 30.30 (4) (g). Defendant was convicted, upon a jury verdict, of criminal possession of a weapon in the second degree (two counts), reckless endangerment in the first degree, and unlawful possession of marijuana.

On appeal, the Appellate Division held that the 161-day period of delay between when defendant consented to the DNA swab (June 5, 2009), and when the People produced a report of the DNA results (November 13, 2009), was chargeable to the People for failing to exercise due diligence in obtaining defendant’s DNA sample (122 AD3d 765, 766 [2d Dept 2014], citing CPL 30.30 [4] [g]). The Appellate Division, upon adding the 161-day period “to the periods of delay correctly conceded by the People,” held that “the People exceeded the six-month period in which they were required to be ready for trial” (id.). The Appellate Division reversed the judgment, on the law, granted defendant’s CPL 30.30 motion, and dismissed the indictment. We now affirm.

CPL 30.30, the “so-called ‘speedy trial’ statute,” is a longstanding fixture in our State’s prosecution of criminal actions and was specifically intended “to address delays occasioned by prosecutorial inaction” (People v McKenna, 76 NY2d 59, 63 [1990]). In 1972, when the legislature enacted CPL 30.30, it was accompanied by a memorandum of the State Executive Department, Crime Control Council which declared “the purpose of the bill [is to] ‘ . . . promote prompt trials for defendants in criminal cases,’ ” noting “that ‘[t]he public, defendants and the victims of crimes all have a strong interest in the prompt trial of criminal cases’ ” (People v Anderson, 66 NY2d 529, 535 n 1 [1985], quoting 1972 McKinney’s Session Laws of NY at 3259).

“Pursuant to CPL 30.30 (1) (a), the People must be ready for trial within six months of the commencement of a criminal action accusing a defendant of a felony offense” (People v Carter, 91 NY2d 795, 798 [1998]). “CPL 30.30 (4) lists the periods which are to be excluded from the computation of the time within which the People are required to be ready” (McKenna, 76 NY2d at 62). CPL 30.30 (4) (g), the statutory provision at issue here, allows the exclusion of “periods of delay occasioned by exceptional circumstances” in obtaining unavailable evidence “material to the people’s case, when the district attorney has exercised due diligence to obtain such evidence” (CPL 30.30 [4] [g] [i]).

The time to conduct DNA testing and to produce a DNA report may, under certain circumstances, be excluded from speedy trial computation as an exceptional circumstance. To invoke the exclusion provided in CPL 30.30 (4) (g), however, the People must exercise due diligence in obtaining the evidence. If the exclusion “is to be given reasonable effect and . . . is to fulfill the legislative purpose, [it] must be limited to instances in which the prosecution’s inability to proceed is justified by the purposes of the investigation and credible, vigorous activity in pursuing it” (People v Washington, 43 NY2d 772, 774 [1977]). In addition, while we have recognized that “ ‘[t]here is no precise definition of what constitutes an exceptional circumstance under CPL 30.30 (4) (g),’ ” we have stated “that the range of the term’s application is limited by the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction” (People v Price, 14 NY3d 61, 64 [2010], quoting People v Smietana, 98 NY2d 336, 341 [2002]).

Here, as a result of the People’s inaction in obtaining defendant’s DNA exemplar, the 161-day period of delay to test the DNA and to produce the DNA report was not excludable from speedy trial computation as an exceptional circumstance.

The People argue that it was OCME’s obligation to affirmatively inform them that there was DNA evidence from the gun swabs available for comparison and that OCME did not, until May 2009, provide the People with the February 2008 report indicating that DNA had been recovered. The People also argue as justification for their inaction that they were not aware of OCME’s LCN (low copy number) DNA testing on the gun swabs as it was a new advance in scientific technology. Therefore, the argument goes, they had no affirmative obligation—despite their discovery obligations under CPL article 240 (see generally People v DaGata, 86 NY2d 40 [1995]) and their repeated declarations of readiness for trial on the record—to diligently ascertain the existence of all the laboratory reports of scientific tests performed at the request of law enforcement on the gun swabs from OCME. These proffered explanations do not justify the prosecutorial inaction in this case. It is the People alone who have the burden of proof of showing that they exercised due diligence sufficient to exclude the delay (see People v Berkowitz, 50 NY2d 333, 349 [1980]), and that burden was not sustained here.

There is no reasonable excuse for the People’s delay in seeking a court order for defendant’s DNA exemplar. The weapon was promptly submitted to OCME by law enforcement for examination and the People waited until May 2009, almost nine months after the indictment, to ask OCME what results, if any, were obtained from the scientific testing performed on the gun swabs. CPL 30.30 is a People-ready rule, and the Appellate Division correctly held that the prosecutorial inaction in this case contravenes CPL 30.30.

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

Judges Pigott, Rivera., Abdus-Salaam, Stein, Fahey and Garcia concur.

Order affirmed.

       The People moved for discovery under CPL 240.40 to compel the taking of defendant’s DNA sample. Generally, CPL 240.90 provides 45 days after arraignment on the indictment for such a discovery motion by a prosecutor except for “good cause shown” (CPL 240.90 [1]).


author: Fahey, J.

text:
    [64 NE3d 952, 41 NYS3d 723]
    In the Matter of Rafael Cortorreal, Appellant, v Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent.
    Argued September 13, 2016;
    decided October 25, 2016

      POINTS OF COUNSEL

      Karen L. Murtagh, Prisoners’ Legal Services of New York, Albany (Matthew P. McGowan of counsel), for appellant.

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

Fahey, J.

A hearing officer presiding at an inmate’s disciplinary hearing violates the inmate’s right to call witnesses by failing to undertake a meaningful inquiry into a requested witness’s allegation that the witness had been coerced into refusing to testify in a related proceeding.

L

While he was incarcerated at Sing Sing Correctional Facility, petitioner Rafael Cortorreal was employed as a building porter. On July 25, 2012, a correction officer found marihuana hidden in a waste container outside the building where petitioner worked. The officer had been searching for the contraband after receiving tips from two confidential informants implicating petitioner.

The correction officer completed an inmate misbehavior report alleging that petitioner had violated two standards of inmate behavior under 7 NYCRR 270.2. On August 23, 2012, a tier III disciplinary hearing was held at Sing Sing, and petitioner was found guilty of both charges. The decision was reversed, however, on administrative appeal, on the ground that “a potentially relevant witness was not properly addressed through testimony or denial.”

By the winter, petitioner had been transferred to Southport Correctional Facility. There, a rehearing commenced before a hearing officer on December 5, 2012. The correction officer who had charged petitioner testified that, as a building porter, petitioner had been given unsupervised access to the area where the marihuana had been found, and that other inmates would not have had such unmonitored access.

Petitioner pleaded not guilty, claiming that the confidential informants had fabricated their allegations, and that any number of inmates could have placed the marihuana outside the building. Petitioner requested testimony from 10 inmate witnesses. Eight refused to testify, completing “Requested Inmate Witness Refusal To Testify” forms. Five of these wrote short explanations, next to a preprinted “I do not want to be involved” option, generally to the effect that they had no knowledge of the situation. The remaining three inmates wrote, next to the same preprinted option, the words “I do not wish to testify” or similar language. (The other two requested inmate witnesses are not pertinent to this appeal.)

On December 21, 2012, the hearing officer showed the refusal forms to petitioner and read them to him because petitioner had some difficulty reading English. Petitioner asked the hearing officer to confirm “personally” that the eight refusing inmates were not willing to testify; the hearing officer declined.

On the same date, the hearing officer accepted into evidence a sworn affidavit by one of the refusing inmate witnesses, whose testimony petitioner had also requested at the August hearing. In the affidavit, the refusing inmate stated that at the time of the first hearing a named correction officer at Sing Sing had told him “that it would not be a good thing” to testify for petitioner, and that the officer had made this communication “in an aggressive manner meant to intimidate.” The inmate also stated in the affidavit that he had been “told” what to write on the refusal form he had signed in August.

The hearing officer did not contact the inmate, nor did he contact the correction officer who had allegedly coerced the inmate. Instead, the hearing officer took testimony from the correction officer who had been present on December 17, 2012, when the inmate signed a refusal form with respect to the rehearing. That officer testified that he had not coerced the inmate, that he had not witnessed any coercion, and that the inmate had not mentioned any prior intimidation.

At the conclusion of the rehearing, the hearing officer found petitioner guilty of violating the two prison disciplinary rules and imposed a penalty of 12 months’ punitive confinement in a special housing unit. The Department of Corrections and Community Supervision (DOCCS) affirmed the hearing disposition on administrative appeal.

Petitioner commenced this CPLR article 78 proceeding against the Acting Commissioner of DOCCS, challenging the determination. He argues that the three refusal forms stating only that the requested inmate did not wish to testify failed to supply a reason for refusal to testify, as required by our case law. Petitioner also contends that the hearing officer failed to conduct adequate inquiry into the allegation of coercion. Supreme Court dismissed the petition. The Appellate Division affirmed (Matter of Cortorreal v Annucci, 123 AD3d 1337 [3d Dept 2014]).

We granted petitioner leave to appeal and now reverse.

f—H HH

An inmate at a prison disciplinary hearing retains the constitutional right to procedural due process, “implemented by the prison regulations in this State” (Matter of Laureano v Kuhlmann, 75 NY2d 141, 146 [1990]). Specifically, an “inmate may call witnesses on his [or her] behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals” (7 NYCRR 254.5 [a]; see Wolff v McDonnell, 418 US 539, 566 [1974]). In Matter of Barnes v LeFevre (69 NY2d 649 [1986]), interpreting 7 NYCRR 254.5, we held that when a requested witness refuses to testify and

“the record does not reflect any reason for the . . . refusal to testify, or that any inquiry was made of him [or her] as to why he [or she] refused or that the hearing officer communicated with the witness to verify his [or her] refusal to testify, there has been a denial of the inmate’s right to call witnesses as provided in the regulations” (Barnes, 69 NY2d at 650).

The parties do not dispute that when a requested inmate witness steadfastly refuses to testify, a “witness refusal form signed by the inmate indicating the reason he [or she] would not testify adequately protect [s] petitioner’s right” to call witnesses (Matter of Jamison v Fischer, 119 AD3d 1306, 1306 [3d Dept 2014]; see also e.g. Matter of Tulloch v Fischer, 90 AD3d 1370, 1371 [3d Dept 2011]). Petitioner contends, however, that an inmate who, in refusing to testify, adds no substantive explanation to the printed “I do not want to be involved” line, but merely repeats the same idea in different language or writes “I do not wish to testify,” has not given a “reason” for refusal to testify within the meaning of Barnes and its progeny. We disagree.

When a requested inmate witness states that he or she is refusing to testify because he or she does not want to get involved or does not wish to testify, the inmate is giving a reason under Barnes. As this Court emphasized in its decision, the record in Barnes did not reflect “any reason” for the refusal (69 NY2d at 650). We did not suggest that some reasons, and not others, are adequate. The fact that an explanation is minimal does not make it any less of a reason. When a refusing inmate witness states that he or she does not wish to testify, that is providing a reason. The statement clarifies that the inmate will not testify because he or she does not wish to, and not because he or she is under compulsion or threat. Saying one will not testify because one does not wish to testify is not a redundancy or tautology.

Moreover, the subjective response of an inmate, faced with a request that he or she testify at another inmate’s disciplinary hearing, is likely to be somewhat inchoate. The inmate’s reason for not wishing to testify may ultimately be simply the desire to avoid becoming entangled in another prisoner’s affairs. Forcing an inmate to come up with an explanation that is judged substantial enough would be an unwise exercise. Rather, a hearing officer’s focus should be on whether the manner of refusal signifies coercion.

We hold that, as a general rule, when a requested inmate witness refuses to testify, a simple statement by the inmate on a refusal form that he or she does not want to be involved or does not wish to testify is sufficient to protect the requesting inmate’s right to call that witness.

I—I I—I

Petitioner’s second argument is based on the hearing officer s response to the allegation by one requested inmate witness of coercion at the time of the first hearing. Petitioner contends that the hearing officer’s inquiry was so inadequate as to violate his right to “call witnesses on his behalf” (7 NYCRR 254.5 [a]; see Wolff, 418 US at 566).

When a hearing officer in a prison disciplinary hearing is presented with an affidavit in which a refusing inmate witness claims that he or she was coerced into refusing to testify at the hearing or in a related proceeding, the hearing officer has an obligation to undertake a meaningful inquiry into the allegation. As respondent concedes, when there is a “claim of coercion, . . . the Hearing Officer ha[s] a duty to inquire further into [the] refusal to testify” (Matter of Delgado v Fischer, 100 AD3d 1171, 1172 [3d Dept 2012]). Whether such an inquiry will require an in-person or telephone interview of the refusing inmate by the hearing officer or may instead proceed through the intermediary of a suitably briefed correction officer will depend on the circumstances surrounding the allegation.

Here, the hearing officer failed to make a meaningful inquiry, either personally or through a correction officer, into the allegation of coercion by the refusing inmate witness. Notably, the correction officer who had interviewed the refusing inmate witness in December 2012 with regard to whether he would testify at the rehearing was not the officer who had spoken with the inmate in the summer of 2012 with regard to the original hearing. Moreover, there is no evidence in the record that the interviewing officer was aware, at the time of the December 2012 interview, of the affidavit alleging earlier coercion. It was brought to the hearing officer’s attention only after the correction officer had interviewed the inmate. The correction officer would have had no reason to investigate the allegation during the interview or elicit the inmate’s recollections with respect to the matter. In short, the record contains no indication that the hearing officer or anyone testifying before the hearing officer asked the inmate whether his refusal to testify at the rehearing was influenced by a prior threat or intimidation.

In these circumstances, the hearing officer failed to determine, in a meaningful manner, whether the inmate’s refusal to testify at the rehearing was because of intimidation at the time of the first hearing. Respondent notes that the inmate witness who alleged intimidation had been transferred from Sing Sing to a distant correctional facility by the time of the rehearing, making it less likely that any prior threat would influence him. We cannot accept that a transfer from one DOCCS facility to another would eliminate the taint of any coercion that occurred. In all, the hearing officer failed to undertake the required meaningful effort to determine whether the failure to testify was the product of coercion.

For these reasons, we conclude that a violation of petitioner’s right to call witnesses occurred and the lower courts erred in dismissing his article 78 petition.

IV.

The parties do not contest the remedy upon reversal. Petitioner seeks the remedy of expungement. For its part, respondent concedes that no fair rehearing is now possible and does not seek remittal for a new hearing in the event of a reversal.

Accordingly, the order of the Appellate Division should be reversed, without costs, the petition granted, respondent’s determination annulled, and respondent directed to expunge all references to the proceeding from petitioner’s files.

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam and Garcia concur; Judge Stein taking no part.

Order reversed, without costs, petition granted, respondent’s determination annulled and respondent directed to expunge all references to the proceeding from petitioner’s files.

      . Petitioner does not challenge the refusals of those inmates who added words to the effect that they had no knowledge of the incident.

      . We have no occasion in this appeal to consider the different rule applied by the Appellate Division in cases where an inmate agrees to testify and later changes his or her mind (compare Matter of Abdur-Raheem v Prack, 98 AD3d 1152, 1153 [3d Dept 2012], Matter of Hill v Selsky, 19 AD3d 64, 67 [3d Dept 2005], and Matter of Codrington v Mann, 174 AD2d 868, 869 [3d Dept 1991], with Jamison, 119 AD3d at 1306, Tulloch, 90 AD3d at 1371, and Matter of Tafari v Fischer, 78 AD3d 1405, 1406 [3d Dept 2010], lv denied 16 NY3d 704 [2011]). It is sufficient for us to note that there is no inconsistency between our holding and those cases.