text:
    [1 NE3d 782, 978 NYS2d 708]
    In the Matter of the Estate of Riven Flamenbaum, Deceased. Vorderasiatisches Museum et al., Respondents; Hannah K. Flamenbaum, as Executor of Riven Flamenbaum, Deceased, Appellant.
    Argued October 15, 2013;
    decided November 14, 2013

      APPEARANCES OF COUNSEL

      Jaspan Schlesinger LLP, Garden City (Steven R. Schlesinger and Seth A. Presser of counsel), for appellant.

      Dunnington, Bartholow & Miller LLP, New York City (Raymond J. Dowd, Luke A. McGrath and Robert F. Dannhauser of counsel), and Hamburger, Weinschenk & Fisher (John C. Fisher of counsel) for Vorderasiatisches Museum, respondent.

      Andrews Kurth, LLP, New York City (Joseph A. Patella of counsel) and Andrews Kurth, LLP, Washington, D.C. (Thomas R. Kline of counsel), and Law Offices of Lucille A. Roussin (Lucille A. Roussin of counsel) for Archaeological Institute of America and others, amici curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question should be answered in the affirmative.

In this probate proceeding, the Vorderasiatisches Museum in Berlin, Germany (the Museum), seeks to recover a 3,000-year-old gold tablet from the estate of Riven Flamenbaum (the Estate). The tablet was first discovered prior to World War I by a team of German archeologists excavating at the foundation of the Ishtar temple in Ashur, Iraq. The tablet dates back to the reign of Assyrian King Tukulti-Ninurta I (1243-1207 BCE) and bears an inscription written in Assyro-Babylonian language and Middle-Assyrian cuneiform script. The tablet was shipped to the Berlin Museum (now the Vorderasiatisches Museum) in 1926. The Museum’s inventory book catalogs the arrival of the gold tablet and provides a description and a sketch. In 1939, the Museum was closed because of World War II, and objects from Ashur were put in storage. In 1945, at the end of the war, the gold tablet was missing.

The tablet resurfaced in 2003, when it was discovered among the possessions of the decedent, a resident of Nassau County and a Holocaust survivor. When Hannah K. Flamenbaum, the decedent’s daughter and executor of the Estate, petitioned to judicially settle the final account, she listed a “coin collection” as an asset of the Estate. Israel Flamenbaum, the decedent’s son and Hannah’s brother, filed objections to the accounting, wherein he claimed that the value of the coin collection was understated “and includes one item identified as a ‘gold wafer’ which is believed to be an ancient Assyrian amulet and the property of a museum in Germany.” Israel also notified the Museum about the tablet, and the Museum responded that the gold tablet is part of its Assyrian collection and had been missing since the end of World War II.

The Museum thereafter filed a notice of appearance and claim with the Surrogate’s Court, Nassau County, to recover the tablet. The Surrogate held a hearing, at which the Museum’s director, Dr. Beate Salje, was the sole witness to testify. Dr. Salje testified that the tablet, along with many other objects, disappeared from the Museum sometime near the end of World War II. Russian troops removed some objects at the end of the war, brought them to Russia, and then back to the Museum in 1957. Dr. Salje stated that she did not know if the tablet was taken by Russian troops, German troops, or people who came to the Museum to take refuge.

The Museum also submitted the report of Dr. Eckart Frahm, Assistant Professor of Assyriology at Yale University. As explained by Dr. Frahm, a 1983 article written by A.K. Grayson, entitled Antiquities from Ashur: A Brief Description of Their Fate with Special Reference to the Royal Inscription, published in the Annual Review of the Royal Inscriptions of Mesopotamia Project, stated that “Professor H.G. Güterbock [a professor at the Oriental Institute of the University of Chicago] in a private communication told [Grayson] of having seen a gold tablet . . . which was in the Berlin Museum before the war ... in the hands of a dealer in New York in 1954.” There is an entry in the Museum’s record that reads “[s]een by Güterbach 1954 in New York,” and underneath it says “Grayson.” This entry is undated, and nothing in the record indicates when the Museum first learned that the tablet was reportedly sighted in 1954.

After the hearing, Surrogate’s Court determined that, although the Museum met its prima facie burden of proving legal title or superior right of possession to the tablet, its claim was barred by the doctrine of laches because the Museum had failed to either report the tablet’s disappearance to the authorities or list the tablet on any international stolen art registries. This inaction, according to the court, prejudiced the Estate’s ability to defend against the Museum’s claim to the tablet.

The Appellate Division, among other things and as relevant here, reversed the Surrogate’s Court order on the law, granted the Museum’s claim for the return of the tablet, and remitted the matter to Surrogate’s Court for further proceedings (see Matter of Flamenbaum, 95 AD3d 1318 [2d Dept 2012]). The Appellate Division concluded that the Estate had not established that the Museum failed to exercise reasonable diligence to locate the tablet, or that the Museum’s inaction had prejudiced the Estate. That court granted the Estate’s motion for leave to appeal pursuant to CPLR 5602 (b) (1) and certified the following question: “Was the decision and order of this Court dated May 30, 2012, properly made?” We now affirm and answer the certified question in the affirmative.

We agree with the Appellate Division that the Estate failed to establish the affirmative defense of laches, which requires a showing “that the museum failed to exercise reasonable diligence to locate the tablet and that such failure prejudiced the [E]state” (95 AD3d at 1320, citing Solomon R. Guggenheim Found. v Lubell, 77 NY2d 311, 321 [1991]; see also Sotheby’s, Inc. v Shene, 2009 WL 762697, 2009 US Dist LEXIS 23596 [SD NY, Mar. 23, 2009, Griesa, J., No. 04-Civ-10067 (TPG)]). While the Museum could have taken steps to locate the tablet, such as reporting it to the authorities or listing it on a stolen art registry, the Museum explained that it did not do so for many other missing items, as it would have been difficult to report each individual object that was missing after the war. Furthermore, the Estate provided no proof to support its claim that, had the Museum taken such steps, the Museum would have discovered, prior to the decedent’s death, that he was in possession of the tablet (compare Matter of Peters v Sotheby’s Inc., 34 AD3d 29, 37-38 [1st Dept 2006], lv denied 8 NY3d 809 [2007] [laches barred claim where owner had actual knowledge of the identity of the party in possession but did not demand return of the property]). As we observed in Lubell, in a related discussion of the defense of statute of limitations, “[t]o place the burden of locating stolen artwork on the true owner and to foreclose the rights of that owner to recover its property if the burden is not met would . . . encourage illicit trafficking in stolen art” (77 NY2d at 320).

Additionally, the Estate failed to demonstrate “the essential element of laches, namely prejudice” (Matter of Barabash, 31 NY2d 76, 82 [1972]). While the Estate argued that it had suffered prejudice due to the Museum’s inaction, there is evidence that at least one family member (decedent’s son) was aware that the tablet belonged to the Museum. And, although the decedent’s testimony may have shed light on how he came into possession of the tablet, we can perceive of no scenario whereby the decedent could have shown that he held title to this antiquity.

The “spoils of war” theory proffered by the Estate—that the Russian government, when it invaded Germany, gained title to the Museum’s property as a spoil of war, and then transferred that title to the decedent—is rejected. The Estate’s theory rests entirely on conjecture, as the record is bereft of any proof that the Russian government ever had possession of the tablet. Even if there were such proof, we decline to adopt any doctrine that would establish good title based upon the looting and removal of cultural objects during wartime by a conquering military force (see Menzel v List, 49 Misc 2d 300, 305-308 [Sup Ct, NY County 1966], mod as to damages 28 AD2d 516 [1st Dept 1967], revd as to modification 24 NY2d 91 [1969]). Allowing the Estate to retain the tablet based on a spoils of war doctrine would be fundamentally unjust.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Saiaam concur.

Order affirmed, with costs, and certified question answered in the affirmative, in a memorandum.

       Notably, it was the official policy of the United States during World War II to forbid pillaging of cultural artifacts. The Rules of Land Warfare of the United States War Department provided that “[a]ll movable property belonging to the State directly susceptible of military use may be taken possession of as booty and utilized for the benefit of the invader’s government. Other movable property, not directly susceptible of military use, must be respected and cannot be appropriated” (Rules of Land Warfare rule 321, War Department of the United States, Basic Field Manual [FM 27-10 1940] at 82, quoted in Menzel, 49 Misc 2d at 306 n 1).


source: Caselaw Access Project

license: Public Domain

text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted October 21, 2013;
    decided November 14, 2013
   Motion by Make the Road New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted October 21, 2013;
    decided November 14, 2013
   Motion by The Black Institute for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted October 21, 2013;
    decided November 14, 2013
   Motion by New York Communities for Change for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted October 21, 2013;
    decided November 14, 2013
   Motion by The Center for Popular Democracy for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted October 28, 2013;
    decided November 14, 2013
   Motion by New York State Trial Lawyers Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    JFK Holding Company LLC et al., Respondents, v City of New York et al., Defendants, and The Salvation Army, Appellant.
    Submitted February 11, 2013;
    decided November 14, 2013
   Motion to strike Point III of the brief for respondents denied.

Judge Rivera taking no part.


text:
    In the Matter of Daniel Kasckarow, Appellant, v Board of Examiners of Sex Offenders of State of New York, Respondent.
    Submitted October 28, 2013;
    decided November 14, 2013
   Motion for poor person relief granted.


text:
    Charles R. Livecchi, Appellant, v John Nacca, Respondent.
    Submitted August 12, 2013;
    decided November 14, 2013
   Motion for reargument of motion for leave to appeal denied [see 21 NY3d 1000 (2013)].


text:
    The People of the State of New York, Respondent, v Thomas Horton, Appellant.
    Submitted November 12, 2013;
    decided November 14, 2013
   Motion for assignment of counsel granted and Tyson Blue, Esq., 4064 County Line Road, Macedón, New York 14502 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Anthony Oddone, Appellant.
    Submitted November 4, 2013;
    decided November 14, 2013
   Motion by New York City Bar Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Adrian P. Thomas, Appellant.
    Submitted October 21, 2013;
    decided November 14, 2013
   Motion by Legal Aid Society for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Charles Wiltshire, Appellant.
    Submitted November 4, 2013;
    decided November 14, 2013
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    Larry Pouncy, Appellant, v Jason L. Solotaroff et al., Respondents.
    Submitted July 22, 2013;
    decided November 14, 2013
   Motion for reargument of motion for leave to appeal denied [see 21 NY3d 857 (2013)].

Judge Abdus-Salaam taking no part.


text:
    Joseph W. Powers, Appellant, v 31 E 31 LLC et al., Respondents.
    Submitted November 12, 2013;
    decided November 14, 2013
   Motion by New York State Trial Lawyers Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    [1 NE3d 790, 978 NYS2d 716]
    The People of the State of New York, Respondent, v Julio Velez, Appellant.
    Argued October 16, 2013;
    decided November 19, 2013

      APPEARANCES OF COUNSEL

      Mark Diamond, New York City, for appellant.

      Janet DiFiore, District Attorney, White Plains (Steven A. Bender and Richard Longworth Hecht of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was indicted in May 2007, for a burglary that occurred in October 2003. He sought dismissal of the indictment based on the 43-month pre-accusatory delay. The People attributed this delay to two circumstances. First, there was a delay of some 14 months owing to the fact that the police department lacked a latent fingerprint examiner to match the prints from the crime scene. Second, once the fingerprints were matched and defendant was identified as a suspect, the District Attorney’s office learned that defendant was already serving a life sentence on another crime. Thus, to conserve and efficiently use resources, the District Attorney’s office decided not to bring charges for the burglary. After defendant’s life sentence on the other conviction was in jeopardy upon a partially successful appeal, the District Attorney sought and obtained the burglary indictment.

County Court, upon applying the five factors delineated by this Court in People v Taranovich (37 NY2d 442 [1975]), denied defendant’s motion to dismiss the indictment due to the delay. The Appellate Division affirmed (78 AD3d 867 [2d Dept 2010]). A Judge of this Court granted defendant leave to appeal (19 NY3d 969 [2012]).

We agree with the lower court’s conclusion that the prosecutorial delay did not deprive defendant of his due process right to prompt prosecution. As it pertains to the extent of the delay, the charges against defendant were filed within the statute of limitations period and no special circumstances exist impairing his right to a fair trial (see People v Fuller, 57 NY2d 152 [1982]). Further, the record supports the determination that the People established good cause for the delay (see People v Decker, 13 NY3d 12, 16 [2009]).

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Order affirmed, in a memorandum.


author: Pigott, J.

text:
    [1 NE3d 785, 978 NYS2d 711]
    The People of the State of New York, Respondent, v Felix Hernandez, Appellant.
    Argued September 11, 2013;
    decided November 19, 2013

      APPEARANCES OF COUNSEL

      Steven Banks, The Legal Aid Society, New York City (Bonnie C. Brennan of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Hope Korenstein and Patrick J. Hynes of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Based on defendant’s alleged attempt to rape his sister-in-law, defendant, a lawful permanent resident of the United States originally from the Dominican Republic, was charged with one count of attempted rape in the first degree, two counts of sexual abuse in the first degree and one count of attempted sexual abuse in the first degree. During a suppression hearing, defendant pleaded guilty to sexual abuse in the first degree (see Penal Law § 130.65 [1]) in full satisfaction of the indictment. In exchange for his plea, the court sentenced defendant to a determinate prison term of five years to be followed by five years of postrelease supervision.

After sentencing, federal immigration authorities sought to deport defendant based on his conviction in this case. At a removal hearing, a federal immigration judge ordered defendant’s removal from the country. Thereafter, defendant, represented by new counsel, filed a motion to vacate his conviction pursuant to CPL 440.10, asserting that the attorney who had represented him at the plea proceeding had been ineffective for failing to inform him that deportation would be mandatory upon his guilty plea. Supreme Court held a hearing on defendant’s motion, and defendant, his former attorney and defendant’s son testified at that proceeding.

At the end of the hearing, the court denied defendant’s post-judgment motion. The court determined that defendant had been confronted with highly compelling reasons to plead guilty because, at the time of his plea, he had learned that the People possessed strong evidence of his guilt, his ties to his family in the United States were strained, and he faced a lengthy prison sentence if convicted after trial. In the court’s view, even if defendant had known that he would be deported, he almost certainly would have pleaded guilty to avoid prolonged incarceration upon a conviction after trial, which would still have been followed by deportation. In addition, the court rejected defendant’s testimony that he was innocent and had a close relationship with his family, finding those assertions incredible. Thus, the court concluded, although defendant had shown that his attorney’s performance had not met reasonable professional standards of competence, defendant had not established the existence of a reasonable probability that, but for counsel’s inadequate advice, he would not have pleaded guilty.

Defendant appealed, and a divided panel of the Appellate Division affirmed defendant’s judgment of conviction and sentence and the order denying defendant’s motion to vacate his plea (see 98 AD3d 449, 449-458 [1st Dept 2012]). In two separate concurring opinions, three Justices determined that the hearing court’s factual and credibility findings were supported by the record, and that “defendant did not establish that he was prejudiced by his counsel’s inadequate advice on the deportation consequences of his guilty plea” because “defendant did not demonstrate a ‘reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial’ ” (id. at 450 [Sweeny, J, concurring], quoting Hill v Lockhart, 474 US 52, 59 [1985]; see also id. at 450-451 [Manzanet-Daniels, J., concurring]).

Two Justices dissented and voted to reverse because, in their view, defendant had established the requisite prejudice. In particular, the dissenters opined, defendant’s testimony showed that he had pleaded guilty in order to “minimize his separation from his six children” (id. at 457 [Freedman, J., dissenting]). The dissenters further asserted that the hearing court’s findings of fact and credibility determinations were unsupported by the record (id.). A Justice of the Appellate Division granted defendant leave to appeal to this Court, and we affirm.

Under the State and Federal Constitutions, a defendant has the right to the effective assistance of counsel (see US Const 6th Amend; NY Const, art I, § 6; People v Baldi, 54 NY2d 137, 146 [1981]). Under the Federal Constitution, defense counsel is ineffective when his or her performance “f[a]ll[s] below an objective standard of reasonableness” under “prevailing professional norms” (Strickland v Washington, 466 US 668, 687-688 [1984]). Even if counsel’s performance is deficient, however, the defendant’s conviction will not be reversed unless “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” (id. at 694-695). In the plea context, the defendant “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial” (Hill v Lockhart, 474 US 52, 59 [1985]; see Roe v Flores-Ortega, 528 US 470, 478 [2000]). Whether the defendant can show such a “reasonable probability” will often turn, as it does here, on credibility determinations which, if they have support in the record, we cannot review (see id.; see generally People v McRay, 51 NY2d 594, 601 [1980]).

In Padilla v Kentucky (559 US 356, 363-371 [2010]), the United States Supreme Court applied the Strickland framework to a defense attorney’s advice, or lack thereof, regarding the immigration consequences of a guilty plea, reasoning that modern immigration law made the possibility of deportation so central to a non-citizen defendant’s decision to plead guilty that defense counsel had to inform the defendant about it prior to his or her guilty plea (see Padilla, 559 US at 363-371; see also People v Haffiz, 19 NY3d 883, 884 [2012]). Specifically, the Court held that counsel “must advise her client regarding the risk of deportation,” but the Court also cautioned that counsel’s duty “is more limited” where the “deportation consequences of a particular plea are unclear or uncertain” (Padilla, 559 US at 367-369).

Additionally, the Court observed, “Whether Padilla is entitled to relief on his claim will depend on whether he can satisfy Strickland’s second prong, prejudice, a matter we leave to the Kentucky courts to consider in the first instance” (id. at 369). The Court reiterated that Strickland’s prejudice prong hinged on “whether ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different’ ” (id. at 366, quoting Strickland, 466 US at 694). In describing the prejudice prong, the Court repeatedly cited Hill v Lockhart and Roe v Flores-Ortega (see Padilla, 559 US at 369-373), both of which described the “reasonable probability” standard of prejudice in the plea context (see Hill, 474 US at 59; see Flores-Ortega, 528 US at 485). The Court further stated that the dissenting Justices’ fear of a flood of new litigation resulting from the Court’s decision was unfounded because “to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances” (Padilla, 559 US at 372).

Here, defendant seizes on the language quoted above to claim that Padilla announced a new “rationality” test for prejudice under the Strickland framework, and he argues that the hearing court violated his federal constitutional rights by failing to apply that standard. But, Padilla did not delineate a new standard for prejudice under Strickland. The Padilla Court repeatedly cited cases setting forth the traditional “reasonable probability” test for prejudice, and the Court’s comment about “rationality] under the circumstances” (Padilla, 559 US at 372) appears to be a simple rephrasing of the existing rule described in Strickland, Hill and their progeny. Furthermore, any language in the Padilla opinion altering the prejudice standard would be dicta because the Supreme Court decided that case based solely on the performance prong of the Strickland framework without conducting a prejudice analysis; in fact, the Court expressly left the resolution of the prejudice issue to the Kentucky Supreme Court on remand (see Padilla, 559 US at 369). Significantly, too, after Padilla, the Supreme Court has continued to apply the “reasonable probability” test for prejudice to ineffective assistance claims in the plea context (see Missouri v Frye, 566 US —, —, 132 S Ct 1399, 1410 [2012]; Lafler v Cooper, 566 US —, —, 132 S Ct 1376, 1384-1385 [2012]). Thus, Padilla has not diluted defendant’s burden to demonstrate a reasonable probability that he would not have pleaded guilty but for counsel’s poor advice.

Moreover, upon reviewing the record, we conclude that there is support for the lower courts’ determination that defendant failed to show a reasonable probability that, if counsel had informed him that he was certain to be deported as a result of his guilty plea, he would not have pleaded guilty and would have gone to trial (see Padilla, 559 US at 366, 372; Strickland, 466 US at 694-695; People v McDonald, 1 NY3d 109, 114 [2003]; compare Pilla v United States, 668 F3d 368, 372-373 [6th Cir 2012], with United States v Akinsade, 686 F3d 248, 250-256 [4th Cir 2012]). Thus, the decisions below are beyond our further review and must be affirmed (see generally Strickland, 466 US at 698; McRay, 51 NY2d at 601).

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

Pigott, J.

(dissenting). A defendant seeking to show ineffective assistance of counsel, under the United States Constitution, with respect to his guilty plea, must demonstrate “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial” (Premo v Moore, 562 US —, —, 131 S Ct 733, 743 [2011] [emphasis added], quoting Hill v Lockhart, 474 US 52, 59 [1985]). While the majority correctly notes that Padilla v Kentucky (559 US 356 [2010]) does not set out a new standard for prejudice (see id. at 366), Padilla clearly recognizes the importance of considering whether “a decision to reject the plea bargain would have been rational” (id. at 372), when determining whether such a “reasonable probability” was shown. The reasonable probability standard is inextricably linked with an assessment of rationality because it may be assumed that there is no reasonable probability that a defendant will make an irrational choice.

If a defendant who is not a United States citizen “has significant ties to his or her country of origin, or has only resided in the United States for a relatively brief period of time, or has no family here, a decision to proceed to trial in lieu of a favorable plea agreement may be irrational in the face of overwhelming evidence of guilt and a potentially lengthy prison sentence” (People v Picca, 97 AD3d 170, 183-184 [2d Dept 2012]). Hernandez, by contrast, has lived in the United States since 1994, has been a legal permanent resident here since 1997, and was the primary caretaker of his six children, all of whom live in the United States, as does his sister. Moreover, the evidence of his guilt was far from overwhelming. As Justice Freedman noted in her dissent at the Appellate Division,

“Celeste Hernandez, the complainant, was the People’s main witness, and the outcome of the case would largely have depended on the jury’s evaluation of the complainant’s and defendant’s credibility. Virginia Hernandez, defendant’s wife, was listed on the People’s witness list, but she did not observe the incident leading to the charges. Defendant’s eight-year-old daughter, who was sleeping on the couch next to Celeste during the incident, was also listed as a witness, but the substance of her testimony was uncertain, as was the weight that a jury would accord to it. There was no corroborating physical evidence” (98 AD3d 449, 457 [1st Dept 2012, Freedman, J., dissenting]).

In my view, and for all the reasons set out in the well-reasoned Appellate Division dissent (see id. at 451-458), there is no record support for the lower courts’ rejection of defendant’s claim that he would have gone to trial and not pleaded guilty had he been warned of the deportation consequences of his plea.

I would vacate Hernandez’s guilty plea. Accordingly, I dissent.

Judges Graffeo, Read, Smith, Rivera and Abdus-Salaam concur; Judge Pigott dissents in an opinion in which Chief Judge Lippman concurs.

Order affirmed, in a memorandum.

       Because defendant’s failure to show prejudice under Strickland suffices to dispose of his appeal, we decline to consider whether, as the People contend, the courts below erroneously found counsel’s advice to be constitutionally deficient under the performance prong of the Strickland analysis. Likewise, we do not express any opinion on defendant’s assertion that the People are prevented from challenging the lower courts’ assessment of counsel’s performance by our decisions in People v Concepcion (17 NY3d 192 [2011]) and People v LaFontaine (92 NY2d 470, 474 [1998]).


text:
    In the Matter of Donald Mack Bennett, Appellant, v Jeff McKoy, Superintendent, et al., Respondents.
    Submitted October 7, 2013;
    decided November 19, 2013
   Motion for reconsideration of this Court’s September 3, 2013 dismissal order denied [see 21 NY3d 1048 (2013)]. Motion for poor person relief dismissed as academic.


text:
    Cadlerock, L.L.C., Respondent, v Jan Z. Renner, Appellant.
    Submitted September 30, 2013;
    decided November 19, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    John Fayolle, Appellant, v East West Manhattan Portfolio L.P. et al., Respondents.
    Decided November 19, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the Appellate Division order on the basis of a one-Justice dissent absent the direct involvement of a substantial constitutional question (CPLR 5601 [a], [b]).


text:
    Shawn Green, Appellant, v State of New York, Respondent.
    Submitted October 7, 2013;
    decided November 19, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Shawn I. Lainfiesta, Appellant, v State of New York, Respondent.
    Decided November 19, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Robert C. Laity, Appellant, v State of New York, Respondent.
    Submitted October 7, 2013;
    decided November 19, 2013
   Motion for leave to appeal dismissed upon the ground that it does not lie (see CPLR 5602).


text:
    In the Matter of Edwin Lopez, Respondent, v Andrea Evans, Appellant.
    Submitted September 23, 2013;
    decided November 19, 2013
   Motion to expand the record on appeal granted on consent.


text:
    In the Matter of Dawud Rahman, Appellant, v Brian Fischer, Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
    Submitted October 15, 2013;
    decided November 19, 2013
   Motion for leave to appeal dismissed as untimely (see CPLR 5513).


text:
    Robert L. Schulz, Appellant, et al., Plaintiffs, v State of New York Executive et al., Respondents.
    Submitted September 30, 2013;
    decided November 19, 2013
   Motion for reargument of motion for leave to appeal denied [see 21 NY3d 1051 (2013)].


text:
    In the Matter of Christopher Sepulveda, Appellant, v William A. Lee, Respondent.
    Submitted October 15, 2013;
    decided November 19, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    TADCO Construction Corp., Appellant, v Dormitory Authority of the State of New York, Respondent.
    Submitted September 16, 2013;
    decided November 19, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    [2 NE3d 921, 979 NYS2d 553]
    The People of the State of New York, Respondent, v Martin Heidgen, Appellant.
    Argued October 8, 2013;
    decided November 21, 2013
    APPEARANCES OF COUNSEL

      Jillian S. Harrington, New York City, for appellant.

      Kathleen M. Rice, District Attorney, Mineóla (Maureen McCormick, Tammy J. Smiley and Judith R. Sternberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s argument that his Alford plea should not have been accepted because the record does not contain strong evidence of his actual guilt is unpreserved for our review as he has moved neither to withdraw his plea nor to vacate the judgment of conviction (see People v Louree, 8 NY3d 541, 545 [2007]; People v Lopez, 71 NY2d 662, 665-666 [1988]).

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Order affirmed, in a memorandum.


text:
    [3 NE3d 654, 980 NYS2d 317]
    The People of the State of New York, Respondent, v Robert L. Worden, Appellant.
    Argued October 17, 2013;
    decided November 21, 2013

      APPEARANCES OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (Timothy S. Davis of counsel), for appellant.

      Sandra Doorley, District Attorney, Rochester CNicole M. Fantigrossi of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s guilty plea vacated and the case remitted to Monroe County Court for further proceedings on the indictment.

Defendant was charged with two counts of rape in the third degree (see Penal Law § 130.25 [3]), arising from incidents of sexual intercourse with his former girlfriend. The complainant testified before the grand jury that defendant had twice initiated sexual intercourse with her while she was under the influence of psychotropic medication that put her into a deep sleep. The complainant further testified that during each incident she awoke and verbally demanded that the intercourse cease. Upon arrest, defendant provided a statement claiming that he and the complainant were in a relationship when the incidents occurred; that she had been awake—though “out of it and tired”—during the intercourse; and that she gave no indication that the sex was non-consensual. Defendant ultimately accepted an offer to plead guilty to one count of third-degree rape under Penal Law § 130.25 (3) in full satisfaction of the indictment. The Appellate Division affirmed (91 AD3d 1340 [4th Dept 2012]), concluding that defendant’s sufficiency challenge was unpreserved and that the preservation exception recognized in People v Lopez (71 NY2d 662 [1988]) did not apply.

The dispositive issue is whether the plea’s factual allocution was sufficient to support the conviction. We hold that it was not. While “trial courts are not required to engage in any particular litany during an allocution in order to obtain a valid guilty plea” (People v Moissett, 76 NY2d 909, 910 [1990]; see also People v Goldstein, 12 NY3d 295, 301 [2009]), “where a defendant’s factual recitation negates an essential element of the crime pleaded to, the court may not accept the plea without making further inquiry to ensure that defendant understands the nature of the charge and that the plea is intelligently entered” (Lopez, 71 NY2d at 666, citing People v Beasley, 25 NY2d 483 [1969], and People v Serrano, 15 NY2d 304 [1965]).

The record of defendant’s plea allocution reveals that the prosecution, defense counsel, and the trial court all misunderstood the definition of “lack of consent” under Penal Law § 130.25 (3). A person is guilty thereunder only if “[h]e or she engages in sexual intercourse with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent” (Penal Law § 130.25 [3] [emphasis added]). Insofar as relevant here, the statute further explains that “lack of consent” under this provision of the Penal Law results from “circumstances under which . . . the victim clearly expressed that he or she did not consent to engage in [the sexual] act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances” (Penal Law § 130.05 [2] [d]).

Penal Law § 130.25 (3) addresses “so-called date rape or acquaintance rape situations [where] there [might] be consent to various acts leading up to the sexual act, but at the time of the act, the victim clearly says no or otherwise expresses a lack of consent” (People v Newton, 8 NY3d 460, 463 [2007] [citation and internal quotation marks omitted]). Accordingly, the statutory provision requires the victim to have “clearly expresse[d] an unwillingness to engage in the sexual act in such a way that a neutral observer would have understood that the victim was not consenting” (id. at 464).

Despite the statute’s plain terms, questions posed by the prosecutor during the brief colloquy indicate an intention to elicit from defendant that the complainant was unable to consent because she was incapacitated. Moreover, the court’s single query during the factual allocution suggests that the court similarly misunderstood that key element of the crime. In an apparent attempt to establish a causal relationship between the complainant’s incapacity and her lack of consent, the court asked defendant, “[a]nd [the complainant] didn’t give you consent because she took too much medication and she has a mental illness, correct?” By answering in the affirmative, defendant unequivocally negated an element of the crime to which he was pleading guilty.

The record of the allocution here does not merely reflect a moment of unfortunate imprecision; rather, it is emblematic of a general misconception regarding the consent element. If the prosecutor, defense counsel and the court all suffered from the same misunderstanding of the statutorily defined relationship between incapacity and lack of consent, it would be unreasonable to conclude that defendant understood it.

Finally, the unusual circumstances of this case bring it within the narrow exception to the preservation requirement recognized in Lopez (71 NY2d at 666). Defendant’s failure to preserve his factual sufficiency challenge is thus not fatal. This is a prototypical example of the “rare case” where a defendant’s “factual recitation negates an essential element of the crime pleaded to,” triggering the trial court’s “duty to inquire further to ensure that defendant’s guilty plea is knowing and voluntary” (id. [citations omitted]). Lopez held that “[w]here the court fails in this duty and accepts the plea without further inquiry, the defendant may challenge the sufficiency of the allocution on direct appeal,” notwithstanding his or her failure to raise it before the trial court (id. [citations omitted]; see also People v Mox, 20 NY3d 936, 938 [2012]).

Here, the factual recitation negated an element of third-degree rape under Penal Law § 130.25 (3). The court’s only further inquiry consisted of a single question that exacerbated the defect in the colloquy. This unusual scenario falls squarely within the Lopez exception in that the court should have been aware of the insufficiency of the allocution. On these facts, “the salutary purpose of the preservation rule” is not jeopardized (see Lopez, 71 NY2d at 666).

As defendant’s plea must be vacated, it is unnecessary for us to reach his remaining argument.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Order reversed, defendant’s guilty plea vacated and case remitted to Monroe County Court for further proceedings on the indictment, in a memorandum.

      . The allocution also lacked an express statement that defendant was pleading “guilty.” While defendant does not rely on this omission as a ground for vacatur, we would note that eliciting such an express statement is obviously advisable in the course of securing a guilty plea.

      . While lack of consent under Penal Law § 130.25 (3) can also be established by proving forcible compulsion (see Penal Law § 130.05 [2] [d]), the People’s case did not rely on that theory.

      . Newton addressed the element of lack of consent in the context of third-degree sodomy (see Penal Law § 130.40). The analysis is equally relevant here, since the definition of “lack of consent” provided in Penal Law § 130.05 (2) (d) applies exclusively to Penal Law §§ 130.40 and 130.25 (3).


text:
    [2 NE3d 921, 979 NYS2d 554]
    The People of the State of New York, Respondent, v Wilson Feliciano, Appellant.
    Decided November 21, 2013

      APPEARANCES OF COUNSEL

      Steven Banks, The Legal Aid Society, New York City (Laura Boyd of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s contention that he completed the terms of his original plea agreement and was therefore entitled to dismissal of the indictment is not preserved for our review. Upon his discharge, defendant did not move for dismissal following the events that he now says constituted performance of the agreement.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

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


text:
    In the Matter of Baldwin Union Free School District et al., Respondents, v County of Nassau, Appellant. (Matter No. 1.) Barbara Hafner et al., Respondents, v County of Nassau et al., Appellants. (Matter No. 2.) In the Matter of Town of North Hempstead et al., Respondents, v County of Nassau, Appellant. (Matter No. 3.)
    Submitted October 21, 2013;
    decided November 21, 2013
   Motion to dismiss appeal denied.


text:
    Bank of America, N.A., Respondent, v Samuel L. Gowrie et al., Appellants, et al., Defendants.
    Submitted October 7, 2013;
    decided November 21, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of Lekan J. Bowen, Appellant. Commissioner of Labor, Respondent.
    Submitted October 21, 2013;
    decided November 21, 2013
   Motion for reargument of motion for leave to appeal denied [see 21 NY3d 974 (2013)].


text:
    In the Matter of Anna Ciano, Appellant, v Maxwell J. Wiley et al., Respondents.
    Submitted October 15, 2013;
    decided November 21, 2013
   Motion for reargument of motion for leave to appeal denied [see 21 NY3d 1048 (2013)].

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Keith Gadsen, Appellant, v Brian Fischer, Commissioner, New York State Department of Corrections and Community Supervision, et al., Respondents.
    Submitted October 15, 2013;
    decided November 21, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Douglas Latta, Appellant, v Maxwell Wiley et al., Respondents.
    Submitted October 15, 2013;
    decided November 21, 2013
   Motion for reargument of motion for leave to appeal denied [see 21 NY3d 1050 (2013)].

Judge Abdus-Salaam taking no part.


text:
    Natural Organics, Inc., Respondent, v OneBeacon America Insurance Co., Appellant.
    Submitted September 3, 2013;
    decided November 21, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Burke v Crosson, 85 NY2d 10, 18 n 5 [1995]).


text:
    The People of the State of New York, Respondent, v Patricia Fratangelo, Appellant.
    Submitted October 15, 2013;
    decided November 21, 2013
   Motion to vacate this Court’s September 27, 2013 preclusion order granted.


text:
    The People of the State of New York ex rel. Shih-Siang Shawn Liao, Appellant, v Andrew M. Cuomo et al., Respondents.
    Decided November 21, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York ex rel. Rudy Roa, Appellant, v William Lee, Respondent.
    Decided November 21, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York ex rel. Michael Aziz Zarif Shabazz, Also Known as Michael Hurley, Appellant, v Jerome J. Richards, Acting Judge of Franklin County Court, et al., Respondents.
    Decided November 21, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Tenants Committee of 36 Gramercy Park, Appellant, v New York State Division of Housing and Community Renewal et al., Respondents.
    Submitted August 19, 2013;
    decided November 21, 2013
   Motion for leave to appeal, purportedly on behalf of Tenants Committee of 36 Gramercy Park by Patricia Pillette, dismissed upon the ground that Patricia Pillette is not the authorized legal representative of Tenants Committee of 36 Gramercy Park (see CPLR 321 [a]).


text:
    [3 NE3d 1137, 980 NYS2d 889]
    The People of the State of New York, Respondent, v Hector Santiago, Appellant.
    Argued October 17, 2013;
    decided November 26, 2013

      APPEARANCES OF COUNSEL

      Steven Banks, The Legal Aid Society, New York City (Svetlana M. Kornfeind of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Beth Fisch Cohen and Patrick J. Hynes of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

During a drug surveillance operation in Manhattan, police pulled over a minivan. There is no dispute that the stop and subsequent search were lawful. Codefendant Andy Alba was the owner and driver of the minivan, defendant Hector Santiago was in the front passenger seat and a third person—the surveillance target—was in the rear seat. A search of the vehicle uncovered a brick of cocaine hidden in a locked compartment under the front passenger floor mat. The officer discovered the “trap” only after he removed the mat and noticed that there was something “irregular” about the carpeting in that area. Defendant subsequently stipulated that the cocaine weighed more than eight ounces.

At trial, the court instructed the jury on constructive possession (Penal Law § 10.00 [8]) and the automobile presumption (Penal Law § 220.25 [1]), but denied defendant’s request for a circumstantial evidence charge. The jury convicted defendant of criminal possession of a controlled substance in the first degree (Penal Law § 220.21 [1]), and the Appellate Division affirmed (91 AD3d 506 [1st Dept 2012]). A Judge of this Court granted defendant leave to appeal (19 NY3d 1000 [2012]), and we now reverse.

It is well established that a “defendant’s request for a circumstantial evidence instruction must be allowed when proof of guilt rests exclusively on circumstantial evidence” (People v Roldan, 88 NY2d 826, 827 [1996]). Constructive possession can be proven directly or circumstantially, and the necessity of a circumstantial evidence charge should be resolved on a case-by-case basis. In this case, the proof connecting defendant to the drugs was wholly circumstantial. Defendant was not the owner or driver of the vehicle, nor was he the target of the surveillance operation, and there was no direct evidence that he was aware of the hidden compartment or that he exercised dominion and control over the concealed cocaine (see People v Brian, 84 NY2d 887, 889 [1994]; People v Griffin, 9 AD3d 841, 843-844 [4th Dept 2004]; compare People v Perez, 259 AD2d 274, 274-275 [1st Dept 1999]). Moreover, this is not a case in which the error can be deemed harmless.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Order reversed and a new trial ordered, in a memorandum.

       Contrary to the People’s assertion, proof by direct evidence of the nature and weight of the controlled substance does not render the circumstantial evidence charge unnecessary. The charge is required where, as here, the only proof that defendant committed the crime charged was circumstantial.


text:
    [2 NE3d 925, 979 NYS2d 557]
    The People of the State of New York, Respondent, v Quentin A. Sims, Appellant.
    Decided November 26, 2013

      APPEARANCES OF COUNSEL

      Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of counsel), for appellant.

      Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), appeal dismissed upon the ground that the reversal by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam.


text:
    In the Matter of Bernard Ellis, Respondent, v Lisa Burke, Appellant.
    Submitted September 16, 2013;
    decided November 26, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Nella Manko, Appellant, v Lenox Hill Hospital, Respondent.
    Submitted September 3, 2013;
    decided November 26, 2013
   Motion, insofar as it seeks leave to appeal from the March 2013 Appellate Division order, denied; motion, insofar as it seeks leave to appeal from the November 2012 and July 2013 Appellate Division orders, dismissed upon the ground that those orders sought to be appealed from do not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Mariah A. and Another, Children Alleged to be Abandoned. Hugo A., Appellant; The Children’s Aid Society, Respondent.
    Submitted October 21, 2013;
    decided November 26, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.

Judge Abdus-Salaam taking no part.


text:
    Russian American Foundation, Inc., et al., Appellants, v Daily News, L.P., et al., Respondents.
    Submitted November 4, 2013;
    decided November 26, 2013
   Motion by Dr. Maria (Maki) Haberfeld et al. for leave to file a brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Joseph Sadowski, Appellant, v John J. Galasso, Respondent.
    Submitted October 21, 2013;
    decided November 26, 2013
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Orville Wynter, Appellant, v John Kase et al., Respondents.
    Submitted October 7, 2013;
    decided November 26, 2013
   Motion for reargument of motion for leave to appeal denied [see 21 NY3d 864 (2013)].


text:
    [2 NE3d 927, 979 NYS2d 559]
    In the Matter of Cathryn M. Doyle.
    Decided December 10, 2013
    APPEARANCES OF COUNSEL

      William J. Dreyer, for Hon. Cathryn M. Doyle.

      Robert H. Tembeckjian, for New York State Commission on Judicial Conduct.
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Cathryn M. Doyle is suspended, with pay, effective immediately, from the office of Surrogate of Albany County, pending disposition of her request for review of a determination by the State Commission on Judicial Conduct.

Concur: Chief Judge Lippman and Judges Read, Smith, Pigott, Rivera and Abdtjs-Salaam. Taking no part: Judge Graffeo.


text:
    [2 NE3d 928, 979 NYS2d 559]
    In the Matter of David H. Dalton, II, Respondent, v Akron Central Schools, Appellant.
    Decided December 10, 2013
    APPEARANCES OF COUNSEL

      Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Gregory A. Cascino of counsel), for appellant.

      Lipsitz, Greene, Scime, Cambria, LLP, Buffalo (John A. Collins of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs. The courts below did not abuse their discretion in granting claimant’s application to file and serve a late notice of claim (see Williams v Nassau County Med. Ctr., 6 NY3d 531 [2006]).

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam.


text:
    [3 NE3d 709, 980 NYS2d 372]
    The People of the State of New York, Respondent, v Roosevelt Jennings, Appellant.
    Decided December 10, 2013
    APPEARANCES OF COUNSEL

      Steven Banks, The Legal Aid Society, New York City (Natalie Rea of counsel), for appellant.

      Charles J. Hynes, District Attorney, Brooklyn (Marie JohnDrigo of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

On appeal, defendant argues that the accusatory instrument, which alleged attempted criminal possession of a controlled substance in the seventh degree, was facially insufficient to show his knowledge of the controlled substance’s presence. However, knowledge of possession of a controlled substance “may be proven circumstantially,” and “possession suffices to permit the inference that possessors know what they possess” (People v Mizell, 72 NY2d 651, 656 [1988]).

Although defendant characterizes the self-described “burnt residue” as de minimis (cf. State v Baker, 912 SW2d 541, 545 [Mo Ct App 1995]), the record indicates otherwise. Both the accusatory instrument and the laboratory report refer to the presence of cocaine “residue” within the glass pipe. Notwithstanding defendant’s contentions, the residue was of a sufficient quantity and character as confirmed by the criminalist who testified to removing a portion of the residue from the pipe with a tiny scoop for testing. Also, Police Officer Harrison stated that the drug was visible.

Finally, the arresting officer alleged that she had observed defendant in possession of the glass pipe prior to defendant dropping it, and had based her conclusion that it might contain crack cocaine on her professional training, her experience from prior arrests, and her recognition of the pipe as an instrument for smoking crack. Thus, the accusatory instrument was sufficient (see People v Kalin, 12 NY3d 225, 229-230, 230-232 [2009]; Mizell, 72 NY2d at 656-657).

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

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


text:
    Cooperstown Holstein Corporation, Appellant, v Town of Middlefield, Respondent.
    Submitted December 2, 2013;
    decided December 10, 2013
   Motion by Town of Ulysses et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Brenda Cornell, Respondent, v 360 West 51st Street Realty, LLC, et al., Defendants, and 360 W 51st Street Corp., Appellant.
    Submitted November 18, 2013;
    decided December 10, 2013
   Motion to enlarge the record on appeal denied.

Judge Abdus-Salaam taking no part.


text:
    Brenda Cornell, Respondent, v 360 West 51st Street Realty, LLC, et al., Defendants, and 360 W 51st Street Corp., Appellant.
    Submitted December 2, 2013;
    decided December 10, 2013
   Motion by Council of New York Cooperatives & Condominiums for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Empire Center for New York State Policy, Appellant, v Teachers’ Retirement System of the City of New York, Respondent. In the Matter of Empire Center for New York State Policy, Appellant, v New York State Teachers’ Retirement System, Respondent.
    Submitted November 25, 2013;
    decided December 10, 2013
   Motion by New York State United Teachers for leave to file a brief amicus curiae on the appeals herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.

Judge Abdus-Salaam taking no part.


text:
    Executive Plaza, LLC, Appellant, v Peerless Insurance Company, Respondent.
    Submitted November 25, 2013;
    decided December 10, 2013

      See 717 F3d 114.
   Motion by United Policyholders for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed.


text:
    Executive Plaza, LLC, Appellant, v Peerless Insurance Company, Respondent.
    Submitted December 2, 2013;
    decided December 10, 2013

      See 717 F3d 114.
   Motion by New York Public Adjusters Association for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    K2 Investment Group, LLC, et al., Respondents-Appellants, v American Guarantee & Liability Insurance Company, Appellant-Respondent.
    Submitted November 25, 2013;
    decided December 10, 2013
   Motion by United Policyholders for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.

Judge Abdus-Salaam taking no part.


text:
    K2 Investment Group, LLC, et al., Respondents-Appellants, v American Guarantee & Liability Insurance Company, Appellant-Respondent.
    Submitted December 2, 2013;
    decided December 10, 2013
   Motion by New York Insurance Association, Inc., et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.

Judge Abdus-Salaam taking no part.


text:
    K2 Investment Group, LLC, et al., Respondents-Appellants, v American Guarantee & Liability Insurance Company, Appellant-Respondent.
    Submitted December 2, 2013;
    decided December 10, 2013
   Motion by Complex Insurance Claims Litigation Association et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Norse Energy Corp. USA, Appellant, v Town of Dryden et al., Respondents. Dryden Resources Awareness Coalition, Proposed Intervenor.
    Submitted December 2, 2013;
    decided December 10, 2013
   Motion by Town of Ulysses et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Churchill Andrews, Appellant.
    Submitted December 2, 2013;
    decided December 10, 2013
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Ivan Calaff, Appellant.
    Submitted November 25, 2013;
    decided December 10, 2013
   Motion to strike Point II of appellant’s brief denied.


text:
    The People of the State of New York, Respondent, v Alexander Dockery, Also Known as John Harris, Appellant.
    Submitted November 4, 2013;
    decided December 10, 2013
   Motion to vacate this Court’s October 18, 2013 preclusion order granted. Motion to strike portions of the respondent’s appendix and the related references in the respondent’s brief granted.


text:
    The People of the State of New York, Respondent, v Samuel McLean, Appellant.
    Submitted November 25, 2013;
    decided December 10, 2013
   Motion for assignment of counsel granted and Danielle Neroni Reilly, Esq., 668 Madison Ave., Albany, New York 12208 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Adrian P. Thomas, Appellant.
    Submitted December 2, 2013;
    decided December 10, 2013
   Motion by New York Law School Post-Conviction Innocence Clinic for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Adrian P. Thomas, Appellant.
    Submitted December 2, 2013;
    decided December 10, 2013
   Motion by American Psychological Association for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Adrian P. Thomas, Appellant.
    Submitted December 2, 2013;
    decided December 10, 2013
   Motion by Innocence Network for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Adrian P. Thomas, Appellant. The People of the State of New York, Respondent, v Paul Aveni, Appellant.
    Submitted December 2, 2013;
    decided December 10, 2013
   Motion by District Attorneys Association of the State of New York for leave to file a brief amicus curiae on the appeals herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Adrian P. Thomas, Appellant.
    Submitted December 2, 2013;
    decided December 10, 2013
   Motion by New York City Bar Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York ex rel. Robert I. Reed, Appellant, v Jeffrey Tedford, as Superintendent of Adirondack Correctional Facility, Respondent.
    Submitted November 12, 2013;
    decided December 10, 2013
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Quadrant Structured Products Co., Ltd., Individually and Derivatively on Behalf of Athilon Capital Corp., Plaintiff Below, Appellant, v Vincent Vertin et al., Respondents.
    Decided December 10, 2013
   Certification of questions by the Supreme Court of the State of Delaware, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam.


text:
    In the Matter of Tyrone D., Appellant, v State of New York et al., Respondents.
    Submitted December 2, 2013;
    decided December 10, 2013
   Motion for poor person relief granted.


text:
    Union Square Park Community Coalition, Inc., et al., Appellants, v New York City Department of Parks and Recreation et al., Respondents.
    Submitted December 2, 2013;
    decided December 10, 2013
   Motion by New York State Senator Liz Krueger et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Union Square Park Community Coalition, Inc., et al., Appellants, v New York City Department of Parks and Recreation et al., Respondents.
    Submitted December 2, 2013;
    decided December 10, 2013
   Motion by Union Square Partnership et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Union Square Park Community Coalition, Inc., et al., Appellants, v New York City Department of Parks and Recreation et al., Respondents.
    Submitted December 2, 2013;
    decided December 10, 2013
   Motion by New Yorkers for Parks for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Union Square Park Community Coalition, Inc., et al., Appellants, v New York City Department of Parks and Recreation et al., Respondents.
    Submitted December 2, 2013;
    decided December 10, 2013
   Motion by Raritan Baykeeper, Inc., et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    [4 NE3d 356, 981 NYS2d 346]
    The People of the State of New York, Respondent, v Ariel Myers, Appellant.
    Decided December 12, 2013
    APPEARANCES OF COUNSEL

      Eugene P. Grimmick, Troy, for appellant.

      Richard J. McNally, Jr., District Attorney, Troy (Roman Griffith of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Under the facts of this case, the admission of evidence of an uncharged crime allegedly committed by defendant for the purpose of establishing defendant’s identity constituted an abuse of discretion (see People v Robinson, 68 NY2d 541, 549-550 [1986]; People v Molineux, 168 NY 264, 293 [1901]). Because the evidence of defendant’s guilt is not overwhelming, the error is not harmless.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed and a new trial ordered, in a memorandum.


text:
    [4 NE3d 352, 981 NYS2d 342]
    The People of the State of New York, Respondent, v Wendell Payton, Appellant.
    Argued November 14, 2013;
    decided December 12, 2013

      APPEARANCES OF COUNSEL

      Robert C. Mitchell, Legal Aid Society, Riverhead (Kirk R. Brandt of counsel), for appellant.

      Thomas J. Spota, District Attorney, Riverhead (Glenn Green of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by remitting the case to County Court for a hearing on defendant’s CPL 440.10 motion and, as so modified, affirmed.

On April 6, 2007, defendant Wendell Payton was arrested and charged with one count of second-degree robbery (Penal Law § 160.10). About two weeks before defendant’s trial, the district attorney’s office executed a search warrant on defense counsel’s law office. This development was not disclosed to defendant, County Court or the assistant district attorney prosecuting the People’s case. On February 19, 2008, the jury convicted defendant as charged.

On April 16, 2008, when defendant appeared for sentencing, the judge revealed that after the verdict he had learned of a potential conflict of interest with respect to defense counsel’s representation of defendant. The nature of the conflict was not placed on the record, but County Court referred to an off-the-record discussion with defense counsel and the assistant district attorney. The judge separately confirmed with defense counsel and defendant that they had discussed this matter. The judge then advised defendant that he was prepared to assign him new counsel, and defendant acknowledged that he wanted a new lawyer. County Court relieved defense counsel and rescheduled the sentencing hearing.

On or about June 23, 2008, defendant’s new attorney moved to set aside the verdict pursuant to CPL 330.30. He argued that the People’s investigation of defendant’s trial counsel on unrelated criminal charges created an actual conflict of interest that should have been disclosed to defendant; and that, as a result, defendant’s conviction had to be vacated because he did not waive the conflict. In a decision dated October 3, 2008, the judge denied the motion, concluding that the circumstances presented did not rise to the level of an actual conflict of interest, but constituted a potential conflict at most. In the judge’s view, the execution of the search warrant did not necessarily alert the trial attorney that he himself was the target of a criminal investigation, rather than some other person or legal entity referenced in any material seized. Further, defendant made no claim or showing that the putative conflict operated on the defense. On October 6, 2008, the judge sentenced defendant to a determinate term of 13 years in prison, followed by five years of postrelease supervision. About two months later, defendant’s former counsel was arrested and charged with fifth-degree possession of a controlled substance (Penal Law § 220.06); he pleaded guilty to this charge and, on April 9, 2009, was sentenced to a conditional discharge.

Defendant subsequently moved to set aside his conviction pursuant to CPL 440.10, again alleging an actual conflict of interest. In a decision dated June 7, 2010, County Court denied the motion without a hearing. He cited essentially the same reasons as in his earlier decision denying defendant’s CPL 330.30 motion. Defendant sought leave to appeal, and the Appellate Division granted the application and calendared it with his direct appeal. In November 2012, the Appellate Division affirmed the judgment as well as the order, insofar as appealed from, with one Justice dissenting (100 AD3d 786 [2d Dept 2012]); on January 22, 2013, the dissenting Justice granted defendant’s motion for leave to appeal.

The State and Federal Constitutions guarantee a criminal defendant legal representation that is “reasonably competent, conflict-free and singlemindedly devoted to the client’s best interests” (People v Harris, 99 NY2d 202, 209 [2002]). A defendant is denied the right to effective assistance of counsel when, “absent inquiry by the court and the informed consent of defendant, defense counsel represents interests which are actually in conflict with those of defendant” (People v McDonald, 68 NY2d 1, 8 [1986]). Because the trial judge owes a duty independent of counsel to protect an accused’s right to effective assistance, once a trial court is

“aware of facts from which it appears that conflicting interests arguably exist, the Trial Judge must conduct a record inquiry of each defendant whose representation is potentially conflict-ridden in order to ascertain whether he or she ‘has an awareness of the potential risks involved in that course and has knowingly chosen it’ ” (id., quoting People v Gomberg, 38 NY2d 307, 313-314 [1975]).

But even if the trial court fails to conduct such an inquiry and obtain defendant’s informed consent, the error requires reversal only if the conflict is an actual one. Where the conflict is merely potential, reversal is mandated only if the defendant can establish that the conflict operated on the defense (see People v Solomon, 20 NY3d 91, 97 [2012]).

We reject defendant’s request to require automatic reversal anytime the defense attorney is under investigation or being prosecuted by the same district attorney’s office that is trying his client. Indeed, in People v Konstantinides (14 NY3d 1, 13 [2009]), we declined to adopt such a per se rule in a case where a defense attorney was accused of criminal misconduct (witness tampering, bribery and suborning perjury) in relation to a witness in his client’s case. An actual conflict would exist where a defense attorney was implicated in the crimes for which his client stood trial, but that was not the situation in Konstantinides and is certainly not the case here. Accordingly, to obtain relief, defendant must demonstrate at a hearing on his 440.10 application that “the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation” (People v Ortiz, 76 NY2d 652, 657 [1990] [internal quotation marks omitted]).

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Order modified by remitting to County Court, Suffolk County, for a hearing on defendant’s CPL 440.10 motion and, as so modified, affirmed, in a memorandum.


text:
    Maninder Bhugra, Appellant, v Massachusetts Casualty Insurance Company et al., Respondents, et al., Defendants.
    Decided December 12, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.

Judge Rivera taking no part.


text:
    In the Matter of Dakota F., Alleged to be the Child of a Mentally Ill or Mentally Retarded Parent. St. Lawrence County Department of Social Services, Appellant; Angela F., Respondent. (Proceeding No. 1.) In the Matter of Desirea F., Alleged to be the Child of a Mentally Ill or Mentally Retarded Parent. St. Lawrence County Department of Social Services, Appellant; Angela F., Respondent. (Proceeding No. 2.)
    Submitted December 2, 2013;
    decided December 12, 2013
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Grand Pacific Finance Corp., Respondent, v Alexander Ashkenazi et al., Defendants. Amit Louzon, Nonparty Appellant.
    Submitted December 2, 2013;
    decided December 12, 2013
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Motion for a stay dismissed as academic.


text:
    Shawn Green, Appellant, v State of New York, Respondent.
    Submitted November 4, 2013;
    decided December 12, 2013
   Motion for reargument of motion for leave to appeal denied [see 21 NY3d 1049 (2013)].


text:
    In the Matter of New York City Asbestos Litigation. Weitz & Luxenberg P.C., Respondent, v Georgia-Pacific LLC, Appellant.
    Submitted October 28, 2013;
    decided December 12, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Taliv Ali, Appellant, v Peter S. Feldstein, Respondent.
    Submitted November 4, 2013;
    decided December 12, 2013
   Motion for reargument of motion for leave to appeal denied [see 21 NY3d 861 (2013)].


text:
    In the Matter of Annette Perel, Respondent, v Daniel Michael Gonzalez, Appellant.
    Submitted October 28, 2013;
    decided December 12, 2013
   Motion for reargument of motion for leave to appeal denied [see 21 NY3d 865 (2013)].

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Ruth M. Pollack, Admitted as Ruth Marie Pollack, a Suspended Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Submitted October 7, 2013;
    decided December 12, 2013
   On the Court’s own motion, appeal taken from the order of disbarment dismissed upon the ground that no substantial constitutional question is directly involved; appeals from the other four orders dismissed upon the ground that those orders do not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal from the order of disbarment denied; motions for leave to appeal from the other four orders dismissed upon the ground that those orders do not finally determine the proceeding within the meaning of the Constitution. Motion for ancillary relief dismissed as academic.

Chief Judge Lippman and Judge Abdus-Salaam taking no part.


text:
    Pasquale Sicuranza, Respondent, v Joan McDonald, Appellant.
    Submitted October 28, 2013;
    decided December 12, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In re Thelen LLP. Yann Geron, as Chapter 7 Trustee of the Estate of Thelen LLP, Appellant, v Seyfarth Shaw LLP, Respondent.
    Decided December 12, 2013

      See 736 F3d 213.
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam.


text:
    [4 NE3d 359, 981 NYS2d 349]
    Adwoa Gyabaah, Respondent, v Rivlab Transportation Corp., Appellant, et al., Defendant. Jeffrey A. Aronsky, P.C., Nonparty Respondent.
    Decided December 17, 2013

      APPEARANCES OF COUNSEL

      Law Offices of Krai Clerkin Redmond Ryan Perry & Van Etten, LLP, Melville (Elizabeth Gelfand Kastner of counsel), for appellant.

      Law Offices of Kenneth A. Wilhelm, New York City (Barry Liebman and Susan R. Nudelman of counsel), for respondent.

      Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac of counsel), for nonparty respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

This action was not settled because the general release and the hold harmless agreement were never delivered to defendant, nor was the acceptance of the settlement offer otherwise communicated to defendant or its carrier (see White v Corlies, 46 NY 467, 469 [1871]).

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Rivera concur; Judge Abdus-Salaam taking no part.

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


text:
    [4 NE3d 941, 981 NYS2d 640]
    Herzl Ragins, Appellant, v Hospitals Insurance Company, Inc., et al., Respondents.
    Argued November 14, 2013;
    decided December 17, 2013

      APPEARANCES OF COUNSEL

      Silverson, Pareres & Lombardi, LLP, New York City (Joseph T. Pareres of counsel), for appellant.

      Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Christopher Simone of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to that court for consideration of issues raised but not determined on the appeal to that court.

Plaintiff brought this action for breach of an insurance contract, asserting that defendants Hospitals Insurance Company and HANYS Insurance Company (collectively HIC) must pay interest on a $1,100,000 medical malpractice judgment against plaintiff under an excess professional liability insurance policy issued by HIC because the liquidator of the insolvent primary insurer has already paid the $1,000,000 per occurrence liability limit of plaintiffs primary professional liability insurance policy, thus triggering the coverage of the excess policy. By an order dated June 13, 2012, the Appellate Division held that HIC was entitled to dismissal of plaintiffs breach of contract claim and remitted the matter to Supreme Court for the entry of a judgment, inter alia, declaring that HIC was not obligated to indemnify plaintiff for the remaining amount of unpaid interest incurred in connection with the underlying malpractice action (see Ragins v Hospitals Ins. Co., Inc., 96 AD3d 819, 819-821 [2d Dept 2012]). Plaintiff appeals by permission of this Court (20 NY3d 853 [2012]). We conclude that, under the plain language of the primary and excess policies, the liquidator’s payment of the primary policy’s $1,000,000 liability limit triggered HIC’s duty to pay all remaining amounts in connection with the judgment, including interest, and we therefore reverse.

At the outset, the plain language of the primary policy does not obligate the now-bankrupt primary insurer, and by extension its liquidator, to pay interest on any judgment against plaintiff if it has already paid the $1,000,000 liability limit of the primary policy toward the judgment. In particular, the “supplementary payments” section of the primary policy obligates the primary insurer to pay postjudgment interest only “before” it has “paid . . . that part of the judgment which does not exceed the limit of the company’s liability thereon,” and the primary insurer has no responsibility for interest after paying the $1,000,000 liability limit.

Furthermore, under the excess policy, HIC must cover any professional liabilities, including interest, above the primary policy’s $1,000,000 limit. In that regard, the excess policy states that HIC will pay “all sums” which are in excess of that limit and which plaintiff “shall become legally obligated to pay as damages.” And, although the excess policy does not specifically mention interest as a covered “sum” of “damages,” that is of no moment because the excess policy does not limit the definition of “sums” to any particular category of damages or liability, or otherwise exclude interest from its reach.

In fact, given that the excess policy does not define “sums” at all, that contractual term logically acquires its widely used meaning of “indefinite or specified amount[s] of money” (Merriam-Webster’s Collegiate Dictionary [11th ed 2003], sum; see Travelers Cas. & Sur. Co. v Certain Underwriters at Lloyd’s of London, 96 NY2d 583, 594 [2001] [using common dictionary definition of a term in a reinsurance contract that was not otherwise defined in the contract]). Similarly, the parties evidently intended that “damages” would retain its most common meaning, namely “[t]he sum of money which the law awards or imposes as pecuniary compensation, recompense, or satisfaction for an injury done or a wrong sustained as a consequence either of a breach of a contractual obligation or a tortious act” (Ballentine’s Law Dictionary [3d ed 2010], damages). By those definitions, interest included in any judgment against plaintiff constitutes a “sum” of money that is traceable to the judgment against him for “damages” in satisfaction of the wrong he caused to an injured party. Therefore, if that prejudgment interest is “in excess” of the primary policy’s $1,000,000 liability limit, HIC must pay it. Indeed, even if there were any ambiguity as to whether the covered sums under the excess policy include interest, that ambiguity must be construed against HIC and in favor of plaintiff, thus providing coverage for that amount under the excess policy (see Dean v Tower Ins. Co. of N.Y., 19 NY3d 704, 708 [2012]).

Applying the plain meaning of the primary and excess policies to the particular medical malpractice judgment against plaintiff at issue here, it is clear that the primary insurer’s liquidator fulfilled its obligations under the primary policy, thereby triggering HIC’s responsibility to pay the interest in excess of the primary policy’s $1,000,000 liability limit. Upon entry of the initial judgment against plaintiff, the liquidator paid plaintiff $1,000,000 toward that judgment. At that point, the liquidator was no longer required to pay interest under the “supplementary payments” provision of the primary policy because that further amount accrued only after the liquidator had already satisfied the liability limit of the primary policy in the manner specified by the “supplementary payments” provision. Thus, the additional interest on the judgment, as amended, constituted a “sum[ ] in excess of the limits of liability of the Underlying Policy,” which is covered by the excess policy. Accordingly, HIC had to pay the additional interest.

Observing that, in the event of the primary insurer’s insolvency, the excess policy expressly relieves HIC from any duty to “drop down” to cover any portion of the judgment that the primary insurer would be required to supply, HIC argues that plaintiff is improperly attempting to bypass that provision and force HIC to pay interest for which the primary insurer would be responsible had it not become insolvent. But, as explained, plaintiff does not impermissibly seek to have HIC “drop down” to fulfill any duty which otherwise would fall to the primary insurer if that insurer were still a going concern. Rather, if the primary insurer had remained solvent and paid the primary policy’s $1,000,000 liability limit, HIC would still bear the responsibility for the remaining interest; that is simply its obligation under the plain language of the excess policy.

Dingle v Prudential Prop. & Cas. Ins. Co. (85 NY2d 657 [1995]) does not mandate a different result. Dingle involved an automobile insurance policy that covered the principal amount of any judgment against the insured driver up to the liability limit of the policy, and under the policy, the insurer additionally agreed to pay “all interest” that accrued between the date of the judgment against the insured driver and the date that the judgment was paid (id. at 659 n 1). The policy provision for postjudgment interest in excess of the liability limit was designed to comply with state regulations governing automobile insurance, which required insurers to pay postjudgment interest (see id. at 659-661; see also 11 NYCRR 60-1.1 [b]). After the plaintiff in Dingle prevailed in a bifurcated trial against the insured driver, the insurer paid its $100,000 policy limit toward the principal amount of the judgment, and it also paid postjudgment interest in proportion to its liability limit. However, the insurer refused to pay interest on the total amount of the judgment, and after the plaintiff sued the insurer, the trial court granted summary judgment to the insurer. We affirmed that grant of summary judgment, explaining that the courts’ interpretation of insurance policies containing language similar to the policy acquired by the plaintiff, as well as the relevant state regulations, compelled the insurer to pay interest only in proportion to the policy’s limit of liability and not in relation to the entire judgment (see Dingle, 85 NY2d at 660-661).

Thus, Dingle stands for the proposition that an insurer generally does not assume responsibility for payments beyond its policy’s liability limit, and that even when the relevant policy expressly covers interest above that limit in order to comply with state regulations, the policy still does not cover excess interest on the entire judgment against the insured.

Here, unlike the policy in Dingle, the primary policy does not expressly cover interest above the policy’s liability limit, and the excess policy plainly covers “all sums” in excess of the primary policy’s limit, necessarily including interest. Furthermore, in this case, there are no state regulations mandating that the primary insurer cover additional damages or interest beyond the primary policy’s limit, nor do any regulations exempt HIC from its responsibility to pay all amounts in excess of the primary policy’s limit.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Order reversed, with costs, and case remitted to the Appellate Division, Second Department, for consideration of issues raised but not determined on the appeal to that court, in a memorandum.