author: Read, J.

text:
    [950 NE2d 91, 926 NYS2d 355]
    The People of the State of New York, Respondent, v Luis Feliciano, Appellant.
    Argued March 24, 2011;
    decided May 5, 2011

      POINTS OF COUNSEL

      Matalon Shweky Elman PLLC, New York City (Joseph Lee Matalon and Jeremy C. Bates of counsel), for appellant. I.
    Counsel’s failure to argue that a five-year delay violated Luis Feliciano’s right to a prompt hearing deprived Feliciano of meaningful representation. (People v Jackson, 153 AD2d 977; People v Carncross, 59 AD3d 1112, 14 NY3d 319; Black v Romano, 471 US 606; Gagnon v Scarpelli, 411 US 778; Strickland v Washington, 466 US 668; Mayo v Henderson, 13 F3d 528; Forbes v United States, 574 F3d 101; People v Caban, 5 NY3d 143; People v Stultz, 2 NY3d 277; People v Benevento, 91 NY2d 708.) II. Luis Feliciano’s federal right to counsel and his due process rights have also been violated. (Strickland v Washington, 466 US 668; Henry v Poole, 409 F3d 48; People v Sawinski, 294 AD2d 667; People v Oskroba, 305 NY 113; Black v Romano, 471 US 606; Gagnon v Scarpelli, 411 US 778; United States v Deutsch, 100 F3d 943.)

      Danielle D. McIntosh, District Attorney, Catskill, for respondent. I.
    Appellant was not denied meaningful representation because the prompt hearing argument was meritless in light of the extradition matter. (People v Baldi, 54 NY2d 137; People v Miles, 36 AD3d 1021; People v Stultz, 2 NY3d 277; People v Borrell, 12 NY3d 365; People v Jackson, 4 AD3d 848; People v Turner, 5 NY3d 476; Cuyler v Adams, 449 US 433; People ex rel. Capalongo v Howard, 87 AD2d 242; Carchman v Nash, 473 US 716; People v Ball, 68 AD3d 1148.) II. Appellant received effective assistance of counsel and due process under the federal
      standard. (Strickland v Washington, 466 US 668; People v Benevento, 91 NY2d 708; People v Ford, 86 NY2d 397; People v Horvath, 37 AD3d 33; Gagnon v Scarpelli, 411 US 778; People ex rel. Schouenborg v Flood, 94 AD2d 751; Moody v Daggett, 429 US 78.)
   OPINION OF THE COURT

Read, J.

On April 14, 1992, County Court in Greene County imposed a split sentence of six months in jail and five years of probation on defendant Luis Feliciano in exchange for a plea of guilty to a felony drug charge. After July 1, 1992, however, he stopped appearing for mandated weekly appointments with his probation officer, who received a report that defendant had fled New York for Puerto Rico. The probation officer investigated this information and ultimately filed a violation of probation (VOP) complaint with County Court on July 20, 1992, alleging that defendant had “absconded ... by leaving for Puerto Rico without [his probation officer’s] permission on 7/4/92.” County Court declared defendant to be delinquent and issued an arrest warrant that same day (see CPL 410.30 [declaration of delinquency], 410.40 [2] [warrant]; Penal Law § 65.15 [2] [providing that declaration of delinquency tolls probationary sentence until disposition of VOP complaint]).

In 2000, defendant was arrested in Pennsylvania for shooting his pregnant wife with a rifle and killing her. He was convicted in 2001 of involuntary manslaughter and a related weapon offense, and sentenced to consecutive prison terms of 272 to 5 years and 2 to 4 years, respectively, for these crimes. The Pennsylvania convictions caused the probation officer to discover defendant’s whereabouts during the course of a periodic search of criminal records. On February 14, 2002, he lodged a detainer with the Pennsylvania prison where defendant was incarcerated.

Defendant wrote County Court on July 8, 2002, declaring that he was “available for disposition” of the pending VOP complaint, and warning that he “intend[ed] to have [the] charges dismissed” if they were not “disposed in a timely manner . . . consistent with the laws governing speedy trial in New York.” Defendant added that the detainer would “hamper any attempts that [he] might . . . make for pre-release programming ... in Pennsylvania, thus making it necessary for [him] to have it dealt with as soon as possible.”

On July 19, 2002, a week after he received defendant’s letter, County Court issued a memorandum to the Greene County probation department, district attorney and public defender, attaching the letter. The judge noted that a VOP hearing was not subject to statutory speedy trial rules; however, citing CPL 410.30, he scheduled an appearance for August 20, 2002 “in the interest of taking prompt, reasonable and appropriate action to cause defendant to appear and answer the pending Declaration of Delinquency” (internal quotation marks omitted). County Court asked the district attorney to “take appropriate action to ensure Defendant’s presence,” and instructed everyone to be prepared for a revocation hearing on August 20th, if necessary.

On July 24, 2002, the district attorney informed County Court that arranging for defendant’s extradition would be difficult, if not impossible, to accomplish: the district attorney had spoken with the State’s extradition coordinator, who told him there was no “normal mechanism” to obtain defendant’s attendance in County Court because the Interstate Agreement on Detainers was “inapplicable.” She advised that “normally extraditions would take place when a defendant [had] completed his prison sentence outside of New York State whereupon he would be made available for pickup and transport to a New York State Court.”

As related by the district attorney, the extradition coordinator went on to say that, having handled over 3,000 cases in her five-year tenure, she had “never attempted an extradition of an out-of-state prisoner who [had] not completed his sentence to respond to probation violation charges in New York State,” and that the “only way [she] could think of’ to do this was an agreement between the Governors of New York and Pennsylvania. She suggested that “special circumstances would have to exist and be alleged” and that the Governor’s Counsel “would be questioning” why an exception to the usual practice should be made. She also observed that the Governor’s decision whether to proceed in this fashion “would be totally discretionary,” and that New York “would have no control over whether the Pennsylvania Governor would exercise his discretion in entering into such an agreement.”

Finally, the district attorney pointed out to County Court that waiting to extradite defendant would save the County the expense of a round trip. In light of the complications presented by defendant’s out-of-state incarceration, the district attorney “requested] that the defendant’s extradition . . . take place at the conclusion of his service of his Pennsylvania sentence rather than at the present time.”

One day later, the judge canceled the August 20th hearing in view of “the difficulties involved in attempting to produce [defendant] . . . , as well as the uncertainty as to whether such arrangement would be approved by the Governors of both Pennsylvania and New York.” He determined that the VOP complaint would be “dealt with ... at some time in the future upon [defendant’s] release from the Pennsylvania Correctional System.”

On January 14, 2003, defendant wrote County Court, imploring the judge to facilitate disposition of the VOP complaint. On January 21, 2003, the judge responded that he had “declined to schedule an appearance on the pending [VOP] prior to [defendant’s] release from the Pennsylvania Correctional System” because of “uncertainty as to whether an extradition arrangement would even be approved by the Governors of Pennsylvania and New York,” and that there was “no reason to deviate from this prior determination.”

On June 2, 2003, defendant filed a pro se motion in County Court. He complained about the risk of double jeopardy; he conceded that he was “guilty on this [VOP],” and asked the court “to fix this legal matter.” County Court held a hearing on June 24, 2003, which was attended by the public defender, the district attorney and defendant’s probation officer. When the judge asked if there was any “consensus between the People and the defense counsel in regard to the issues . . . before the Court,” the public defender responded that

“for due process purposes, the defendant ought to be brought back as expeditiously as possible for the purposes of addressing the issue of the [VOP] and closing that case once and for all, as opposed to allowing the case to linger for years until some day the defendant shall complete a prison term in the State of Pennsylvania.”

The district attorney indicated that the People opposed defendant’s production “at this time”; he suggested that the matter was not “ripe” until defendant was about to be released from the Pennsylvania prison. When the judge asked for a specific date, the probation officer replied that defendant’s earliest and maximum release dates in Pennsylvania were January 11, 2005 and July 11, 2009, respectively. The probation officer also observed that “one of the other concerns” in retrieving defendant for a VOP hearing before he completed his prison term in Pennsylvania was the “procedural nightmare and unnecessary travel.”

At the end of the hearing, the judge again concluded that defendant should be returned “at the finish of his Pennsylvania sentence.” He issued a written decision and order to this effect, dated June 27, 2003, in which he also rejected what he understood to be defendant’s argument that “double jeopardy prohibit [ed] [County] Court from sentencing him to a prison term for the same crime for which he was previously sentenced to a term of probation.”

In advance of defendant’s scheduled release from prison to a halfway house, Pennsylvania officials notified the probation officer and arrangements were made to return defendant to Greene County. On May 24, 2007, the warrant was executed and a hearing was held in County Court, after which defendant was committed to the sheriff’s custody without bail (see CPL 410.60 [reasonable cause hearing]). At this hearing, defense counsel informed the judge that his client was “requesting that the time he served in prison in Pennsylvania [be] concurrent to the offense here in New York.” Both the probation officer and the district attorney made clear that this proposal was unacceptable, and that the People would seek defendant’s incarceration for 15 years. On May 24, 2007, the probation officer also amended the VOP complaint by adding a second count relating to the Pennsylvania crimes, and on May 29, 2007, defendant was arraigned again.

A revocation hearing was held on May 31, 2007; at its conclusion, County Court found that defendant had violated several of the general conditions of his probation by absconding and by committing the crimes in Pennsylvania (see CPL 410.70 [probation-revocation hearing]). On June 6, 2007, the judge revoked the probation portion of the sentence imposed on defendant in 1992, and resentenced him to an indeterminate term of 5 to 15 years in prison, which was the sentence specified by the Penal Law at the time defendant committed the drug felony to which he pleaded guilty (see CPL 410.70 [5]). Defendant appealed, and the Appellate Division affirmed (54 AD3d 1131 [3d Dept 2008]).

Defendant then sought postconviction relief by way of two CPL 440.20 motions to set aside his sentence, both brought pro se. In his first motion, made in November 2008, defendant contended that County Court lost jurisdiction to adjudicate him in violation of probation because of an unexplained 15-year delay in producing him to answer the declaration of delinquency, citing People v Horvath (37 AD3d 33 [2d Dept 2006]). In a decision and order dated January 21, 2009, County Court denied the motion in its entirety; specifically, the judge ruled that defendant’s objection to timeliness was unpreserved because it was not raised at the VOP hearing. On April 6, 2009, the Appellate Division denied defendant permission to appeal (2009 NY Slip Op 69279[U] [3d Dept 2009]).

In his second CPL 440.20 motion, made in March 2009, defendant raised an ineffective assistance of counsel claim under state and federal law on account of defense counsel’s failure to raise the issue of delay at the VOP hearing. On May 4, 2009, County Court denied this motion, ruling in particular that defendant’s ineffective assistance claim was “the proper subject of [his] direct appeal, not a CPL [article] 440 motion.” On June 30, 2009, the Appellate Division denied defendant permission to appeal (2009 NY Slip Op 77128[U] [3d Dept 2009]).

In September 2009, defendant pro se applied to the Appellate Division for a writ of error coram nobis. He claimed that appellate counsel’s representation was deficient because he did not fault defense counsel for failing to argue at the VOP hearing that “the six[-]year delay by the DA in moving to adjudicate the [VOP] amounted to a loss of jurisdiction [such that] the Court below would have been statutorily compelled to dismiss the violation and the case.” The Appellate Division denied the application (2009 NY Slip Op 89246[U] [3d Dept 2009]). A Judge of this Court subsequently granted defendant leave to appeal (14 NY3d 840 [2010]), and we now affirm.

I.

In People v Baldi (54 NY2d 137, 146-147 [1981]), we created a standard of “meaningful representation” to evaluate the effectiveness of trial counsel, where the “prejudice component focuses on the ‘fairness of the process as a whole rather than its particular impact on the outcome of the case’ ” (People v Caban, 5 NY3d 143, 156 [2005], quoting People v Benevento, 91 NY2d

708, 714 [1998]). In People v Stultz (2 NY3d 277 [2004]), we adopted “meaningful representation” as the measure of effective assistance of appellate counsel, commenting that it would be “inapt to have one standard for trials and another for appeals” and that “[a]ppellate courts are uniquely suited to evaluate what is meaningful in their own arena” (id. at 284).

Stultz characterized appellate advocacy as meaningful so long as it “reflected] a competent grasp of the facts, the law and appellate procedure, supported by appropriate authority and argument” (id. at 285). And although “in general, the issue is whether counsel’s performance viewed in totality amounts to meaningful representation,” we have acknowledged that there are “rare” cases where “a single failing in an otherwise competent performance is so egregious and prejudicial as to deprive a defendant of his constitutional right” (People v Turner, 5 NY3d 476, 480 [2005] [emphasis added; internal quotation marks omitted]).

Turner was such a “rare” case. There, trial counsel neglected to advance “[a] clear-cut and completely dispositive” statute of limitations defense, which “no reasonable defense lawyer could have found ... so weak as to be not worth raising” (id. at 481, 483). We concluded that this deficiency in trial counsel’s performance “should have been apparent to any reasonable appellate counsel, and should have prompted that counsel to make an ineffective assistance argument” (id. at 483).

Here, County Court postponed the VOP hearing until defendant was released from prison in Pennsylvania, as requested by the district attorney. Defendant maintains that the resulting five-year delay in adjudicating the VOP complaint violated his statutory right under CPL article 410 (or, alternatively, his federal due process right) to a prompt hearing and thereby divested County Court of jurisdiction to revoke his probation. Defendant’s trial counsel did not make these arguments — which defendant considers to be “clear-cut and completely dispositive” á la Turner — at the VOP hearing, and his appellate attorney did not point out the omission to the Appellate Division. The outcome of defendant’s application for a writ of error coram nobis thus depends on the soundness of his statutory and constitutional arguments.

II.

CPL 410.30 provides that, upon reasonable cause to believe that a defendant has violated a condition of a sentence of probation, the court may declare the defendant delinquent and file a written declaration of delinquency. Upon such filing, “the court must promptly take reasonable and appropriate action to cause the defendant to appear before it for the purpose of enabling the court to make a final determination with respect to the alleged delinquency” (id. [emphasis added]). Concomitantly, CPL 410.40 (2) mandates that a warrant issued by the court in connection with a VOP must direct the defendant to be taken into custody and brought before the court “without unnecessary delay” (emphasis added); and CPL 410.70 (1) entitles a defendant to a hearing on the alleged VOP “promptly after the court has filed a declaration of delinquency” (emphasis added).

The Appellate Division examined these provisions in Horvath. There, Supreme Court in Kings County filed a declaration of delinquency against the defendant for allegedly violating the terms of a probationary sentence imposed upon her after she pleaded guilty to third-degree grand larceny. A few months later, the defendant was arrested on additional larceny charges in New York County; she was subsequently convicted and sentenced to 3 to 6 years in prison on these charges. Prior to sentencing, the New York City Department of Probation (City Probation Department) prepared a presentence report, which noted that the defendant was on probation for a prior felony conviction. Following sentencing, the defendant was transferred to state prison; she did not appear in Supreme Court in Kings County to answer the declaration of delinquency until roughly 20 months after she began serving her prison sentence. The defendant argued that because she was not promptly produced on the declaration of delinquency, the court lacked jurisdiction to adjudicate her in violation of probation.

The Appellate Division agreed, first noting that although constitutional and statutory speedy trial guarantees and specific statutory deadlines were not implicated, “an allegation that a probationer has violated probation may result in a serious deprivation, including the loss of liberty” (37 AD3d at 37). Consequently,

“the meaning of the command of CPL 410.30 that the court ‘promptly take reasonable and appropriate action to cause the defendant to appear before it,’ as well as the requirement of CPL 410.70 (1) that a hearing be held ‘promptly’ after the filing of the declaration of delinquency, must be informed by the basic due process requirement that the violation of probation hearing not be unreasonably delayed” (id.).

The court considered four factors — the length of the delay, the reason for the delay, whether the probationer contributed to the delay and demonstrable prejudice to the probationer because of the delay — relevant to an evaluation of whether the timeliness requirements of CPL article 410 had been met, remarking that “[ojrdinarily, no single factor, standing alone, is either necessary or sufficient to warrant relief’ (id. at 38). The Appellate Division then concluded that the delay in this case was substantial and unexplained and not in any way attributable to anything done by the defendant, observing that “the [City] Probation Department had prepared a report concerning [the defendant] which noted that she was on probation,” and she “was available to the Probation Department to be produced on the warrant throughout the period of her incarceration” (id. at 38). Finally, while “not prepared to say” that the defendant suffered no prejudice on account of the delay, the court held that CPL article 410 “does not demand a showing of prejudice as a sine qua non for relief,” as the City Probation Department argued. The court called this a reasonable “legislative choice” because “[t]he filing of a declaration of delinquency tolls the period of probation, thereby, in effect, extending the sentence originally imposed” (id. at 39, citing Penal Law § 65.15 [2]). “On this record,” the Appellate Division held that “the balance [of the factors] weighted] clearly in [the defendant’s] favor and therefore the Supreme Court lost jurisdiction to adjudicate her in violation of probation” (id.).

According to defendant, “Horvath thus stands for the rule that if a probationer is available to the Probation Department by reason of being incarcerated, then the statutory right to a prompt hearing attaches, and the violation of that right causes the court to lose jurisdiction.” This formulation begs the question of what it means for a defendant to be “available ... by reason of being incarcerated.” A probationer subject to a declaration of delinquency and incarcerated in a New York prison may readily be transported to a New York court for an appearance at a VOP hearing; this is why the lengthy delay in Horvath was unexplained and ultimately, in the Appellate Division’s view, inexcusable. The extradition of such a probationer from an out-of-state prison to New York for an appearance in a New York court is quite another matter.

But defendant also relies on our decision in People v Winfrey (20 NY2d 138 [1967]). In April 1958, a warrant was issued for the defendant’s arrest for second-degree forgery and petit larceny. The defendant was soon thereafter incarcerated in Alabama for a probation violation. The New York prosecutor lodged a detainer with the prison authorities in Alabama in July 1958, but made “no effort ... to obtain his presence in New York” (id. at 140). The defendant was indicted on the forgery and petit larceny charges in January 1963; he was returned to New York for prosecution in October 1963, upon his release from prison in Alabama. The defendant moved to dismiss the indictment for failure to prosecute.

The People offered the defendant’s Alabama imprisonment as justification for the delay, and argued that because Alabama was not then a party to the Interstate Agreement on Detainers, “a request for [the defendant’s] release before his sentence was completed would have had a dubious result” (id. at 142). We observed that the People’s argument “overlook[ed] the fact that Alabama . . . [made] provision for transfer of defendants to other States in the discretion of the Governor” (id.). Further, it was

“a relatively simple matter to request the Governor of a sister State to turn over a prisoner; and there is no contention that if such a request [was] made and rejected a delay in bringing the prisoner to trial in New York occasioned by his foreign imprisonment would be unreasonable. The point [was] that in this case no effort of any kind was made” (id.).

We decided that the delay deprived the defendant of due process of law and so reversed the Appellate Division’s order and granted the defendant’s motion to dismiss the indictment, observing that

“once having instituted the prosecution by detainer warrant, indictment or other initiatory process, [the People] have the obligation of advancing it unless there is reasonable ground for delay. Refusal by another jurisdiction to surrender the defendant would, of course, be an excuse. All that the People would have to do is make the request, sincerely, for the surrender — a letter would do” (id. at 144).

Defendant takes Winfrey and, to a lesser extent our decision in People v Romeo (12 NY3d 51 [2009]), to stand for the proposition that the County was, at a minimum, required to make a prompt request of the State’s extradition coordinator to arrange for defendant’s presence at a VOP hearing in New York once defendant wrote County Court in July 2002, asking to appear and answer the VOP complaint. Courts, however, have traditionally treated extradition for purposes of criminal prosecution, as in Winfrey and Romeo, as matters of far greater urgency and constitutional dimension than probation revocation proceedings. The United States Supreme Court’s decisions in Carchman and Moody v Daggett (429 US 78 [1976]) illustrate this point.

In Carchman, the Supreme Court held that the Interstate Agreement on Detainers, designed to encourage jurisdictions to cooperate with one another in resolving outstanding detainers, does not apply to a detainer for a probation-violation warrant. This is so because a “probation-violation charge is not a detainer based on ‘any untried indictment, information or complaint,’ within the meaning of’ the language in article III of the Agreement (Carchman, 473 US at 726). Article III sets up a procedure whereby a prisoner incarcerated in one party state (the sending state) may demand the speedy disposition of “any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner” by another party state (the receiving state) (see CPL 580.20). Article IV sets up a corollary procedure whereby an “appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available” (id.).

In reaching its decision in Carchman, the Court stressed that the statute’s broader purposes with respect to criminal-charge detainers did not generally apply in the context of probation-violation detainers. First, there was less danger of unsubstantiated charges since the probation-violation detainer was often based on the prisoner’s commission of the crimes resulting in his conviction and incarceration (Carchman, 473 US at 730-731). Second, there were fewer uncertainties in the likelihood of receiving an additional sentence — i.e., “[s]ince the probation revocation [was] based on commission of a crime serious enough to warrant incarceration in the sending State, the probationer no doubt often . . . [would] be sentenced to serve the full term of his suspended sentence” (id. at 732). Finally, the possibility that a long delay would impair the prisoner’s ability to defend himself was “unlikely to be strongly implicated in the probation-violation detainer context” (id. at 733).

The Court commented that it had “never held . . . that a prisoner subject to a probation-violation detainer has a constitutional right to a speedy probation-revocation hearing,” citing Moody (id. at 731 n 10). Finally, although the Court recognized that an individual prisoner might have a legitimate interest in prompt disposition of a probation-violation charge, it concluded that

“ [nevertheless, . . . the purposes of the Agreement [were] significantly less advanced by application . . . to probation-violation detainers than by application ... to criminal-charge detainers”; and “[w]hether those purposes would be advanced sufficiently by application of Art. Ill to probation-violation detainers to outweigh the administrative costs, and, more generally, whether the procedures of Art. Ill [were] the most appropriate means of disposing of probation-violation detainers, [were] questions of legislative judgment” best left to the parties to the Agreement (id. at 734).

Moody involved a challenge to the United States Board of Parole’s decision to delay the execution of a parole-violation warrant until the alleged violator had served the custodial portion of an intervening prison sentence. While on federal parole, the parolee was convicted of two more federal offenses for which he was incarcerated in a federal prison. The Board issued a parole-violation warrant, which was lodged as a detainer in the federal prison. Although the parolee requested speedy execution of the outstanding warrant, the Board allowed the warrant to remain unexecuted until the parolee had completed serving the new federal sentences.

The Supreme Court endorsed this approach, concluding that due process did not mandate a hearing promptly upon issuance of the parole-violation warrant and the detainer. The Court reasoned that the outstanding warrant did not deprive the parolee of any protected liberty interest: the possibility of future incarceration if a revocation was eventually ordered was too uncertain to constitute a liberty interest; the parolee’s claim that the detainer made him ineligible for certain prison programs and caused a less desirable classification was insufficient to invoke due process; the unexecuted warrant did not deprive the parolee of the chance of concurrent sentences because the United States Parole Commission was authorized by statute to revoke parole and grant, retroactively, credit for time already served in prison for crimes committed while on parole; and the parolee made no claim that any evidence in his case would be “vitiated by delay” (Moody, 429 US at 88 n 9).

The Court also stated that “there [was] a practical aspect to consider” in cases where “the parolee admits or has been convicted of an offense plainly constituting a parole violation” (id. at 89). Specifically, the alleged parole violator might benefit from a later hearing because “a decision to revoke parole would often be foreordained” if the hearing was held immediately after imprisonment, while deferring the hearing until expiration of the parolee’s intervening sentence would yield more relevant and accurate information to predict whether release was justified (id.). Although Moody is arguably distinguishable from cases involving more than one jurisdiction, post -Moody decisions have generally interpreted it to mean that states are not constitutionally obligated to execute detainers lodged out of state against parole or probation violators before their release from prison (see generally 2 N. Cohen, The Law of Probation and Parole §§ 24:10, 24:11, 24:12 [2d ed 1999]).

III.

As the discussion of the relevant statutes and cases shows, the arguments that defendant asserts trial counsel should have advanced at the VOP hearing are not so strong that “no reasonable defense lawyer could have found [them] ... to be not worth raising” (Turner, 5 NY3d at 483). They are, in fact, novel and call for an extension of or change in — not an application of — existing law. As a result, there was no reason for appellate counsel to make an ineffective assistance argument. As we noted in People v Borrell (12 NY3d 365, 369 [2009]), “[c]ounsel [is] not ineffective for failing to raise an issue of . . . uncertain efficacy on the appeal.”

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

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

Order affirmed.

      . The United States Supreme Court has defined a detainer as “a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent” (Carchman v Nash, 473 US 716, 719 [1985]).

      . The defendant in Romeo fatally shot a man in New York before absconding to Canada and fatally shooting a second victim there. We held that the 12-year postindictment delay, occasioned by the People’s decision to defer prosecution and allow the defendant to be extradited to Canada for prosecution there first, violated the defendant’s speedy trial rights. We faulted the People for failing to file an extradition warrant or make other diligent efforts to bring the defendant to trial promptly.

      . A number of states filed an amici curiae brief in which they argued that “expanding the scope of. . . the Agreement to include detainers for violation of probationary sentences,” would “create[ ] a substantial obligation on the States. Since there is no constitutional obligation on the States to move speedily to revoke probation [citing Moody], the States’ obligations are those knowingly accepted ... in signing the agreement” (1984 WL 566114, at *16-17).

      . Even though Moody involved a federal prisoner attacking a federal detainer, several states filed amicus curiae briefs, apparently sensing that the decision might affect their extradition practices with respect to alleged parole and probation violators. These amici emphasized that the Court’s decision involving the scope of due process should consider the administrative burdens imposed on them by available alternatives. For example, the Commonwealth of Virginia argued that “[t]o require that a final revocation hearing be held while [the alleged violator] is still incarcerated in a foreign jurisdiction places an undue burden upon the paroling States and tends to overlook administrative realities” (1976 WL 181202, at *8). Essentially, the states were worried about the extra costs involved, just as Greene County was in this case.


source: Caselaw Access Project

author: Chief Judge Lippman. Smith, J.

license: Public Domain

text:
    [950 NE2d 113, 926 NYS2d 377]
    Yun Tung Chow et al., Appellants, v Reckitt & Colman, Inc., et al., Respondents, et al., Defendant. (And Other Actions.)
    Argued March 24, 2011;
    decided May 10, 2011

      POINTS OF COUNSEL

      Lisa M. Comeau, Garden City, and Ronemus & Vilensky, New York City, for appellants.
    The Appellate Division erred in affirming Supreme Court’s award of summary judgment to defendants. (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966; GE Capital Mtge. Servs. v Mittelman, 238 AD2d 471; Nigro, D’Anna & Utrecht v Collard, 208 AD2d 911; Antonucci v Emeco Indus., 223 AD2d 913; Porter v Uniroyal Goodrich Tire Co., 224 AD2d 674; Colt v Great Atl. & Pac. Tea Co., 209 AD2d 294; Cobrin v County of Monroe, 212 AD2d 1011; Vasquez v City of New York, 210 AD2d 156; McCue v Battaglia, 211 AD2d 625; Daley v Gemini Bakery Equip. Co., 228 AD2d 210.)

      Ahmuty, Demurs & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for Reckitt & Colman, Inc. and another, respondents.
    The Supreme Court and Appellate Division correctly dismissed Yun Tung Chow’s design-defect and failure-to-warn claims because his failure to read and heed the warnings and straightforward instructions on the bottle constituted the sole, proximate cause of the accident. (Heller v U. S. Suzuki Motor Corp., 64 NY2d 407; Codling v Paglia, 32 NY2d 330; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Torrogrossa v Towmotor Co., 44 NY2d 709; Davey v Dolan, 46 AD3d 854; Guadalupe v Drackett Prods. Co., 253 AD2d 378; Andre v Pomeroy, 35 NY2d 361; Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557; Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471.)

      Fiedelman & McGaw, Jericho (James K. O’Sullivan of counsel), and Law Offices of Alan I. Lamer, Elmsford, for Malco Products, Inc., respondent. I.
    A product that consists of a chemical compound is not “designed” and therefore cannot be the subject of a claim for defective design, absent proof that it could be produced in a manner that made it safer without significantly affecting its utility. (Voss v Black & Decker Mfg. Co., 59 NY2d 102; Denny v Ford Motor Co., 87 NY2d 248; Adamo v Brown & Williamson Tobacco Corp., 11 NY3d 545.) II. It was improper to consider the affidavit of the expert, because of plaintiffs disregard of CPLR 3101 (d). (Brill v City of New York, 2 NY3d 648; Gerry v Commack Union Free School Dist., 52 AD3d 467.) III. Plaintiffs own behavior was the sole proximate cause of his injuries. (Guadalupe v Drackett Prods. Co., 253 AD2d 378; Sabbatino v Rosin & Sons Hardware & Paint, 253 AD2d 417; Sosna v American Home Prods., 298 AD2d 158; Olan v Farrell Lines, 64 NY2d 1092.) IV. Plaintiffs failure to warn claim fails to state a cause of action pursuant to the Federal Hazardous Substances Act and such a claim would be meritless in any event. (Beyrle v Finneron, 229 AD2d 1010; Liz v Zinsser & Co., 253 AD2d 413; Leon v Martinez, 84 NY2d 83; Fleischman v Peacock Water Co., Inc., 51 AD3d 1203; Matter of Allstate Ins. Co. v Perez, 157 AD2d 521.)
   OPINION OF THE COURT

Chief Judge Lippman.

Plaintiff, Yun Tung Chow, and his wife brought this products liability action against the defendant entities responsible for the manufacture, distribution and package design of a product sold under the brand name Lewis Red Devil Lye (RDL). Defendants moved for summary judgment, and Supreme Court granted the motion. The Appellate Division affirmed, with two Justices dissenting solely as to the propriety of summary dismissal of the defective design cause of action (69 AD3d 413 [1st Dept 2010]). Plaintiffs then appealed to this Court as of right (CPLR 5601 [a]). We conclude, in accordance with settled summary judgment and products liability principles, that a defendant moving for summary judgment in a defective design case must do more than state, in categorical language in an attorney’s affirmation, that its product is inherently dangerous and that its dangers are well known. Rather, to be entitled to summary judgment in such a case, a defendant must demonstrate that its product is reasonably safe for its intended use; that is, the utility of the product outweighs its inherent danger. Defendants failed to make such a showing here.

RDL is 100% sodium hydroxide, a chemical compound commonly known as lye. The product is sold in the form of dry crystals, and it is packaged and marketed to laypersons as a product that clears clogged drains.

Plaintiff was injured while using RDL to clear a clogged floor drain in the kitchen of the Manhattan restaurant where he worked. Plaintiff cannot read English and testified through an interpreter that, although he had used RDL many times in the past, he never read the instructions and warnings printed on RDL’s bottle. Instead, he learned how to handle RDL by following the examples of others he observed using the product. Normally, he testified, he would take one spoonful of RDL, add one cup of water, and then pour that solution down the clogged drain. Then, “right after that,” he would flush the drain with water and the drain would be clear.

On the day in question, plaintiff noticed that the restaurant’s kitchen floor drain had become clogged. He located the restaurant’s bottle of RDL, but found that there was little remaining in the bottle, so he put all that was left, approximately three spoonfuls, into a dry aluminum container. Plaintiff then poured roughly three cups of cold water into the container. He did not observe any reaction in the container as he walked four steps to the drain, bent at the waist, and poured the solution down the floor drain. Immediately after plaintiff poured the solution down the drain, it splashed back out of the drain and onto plaintiffs face. He sustained serious burns and ultimately lost sight in his left eye as a result of the splash back.

As defendants stress, plaintiffs handling of the product was not in accordance with the label’s instructions and warnings. The label warns that splash back and serious injury may occur if RDL is not used as directed. Under “DIRECTIONS FOR USE,” the label states that protective eyewear and rubber gloves are to be used when handling RDL, and the user is advised that one should “NEVER POUR LYE DIRECTLY FROM CONTAINER INTO DRAIN.” Instead, a plastic spoon is to be used to dispense the product (the user is specifically advised to keep RDL “away from contact with aluminum utensils”). One tablespoon is to be spooned into the clogged drain, then the user is to wait 30 minutes. After 30 minutes, the user may check to see if the drain is clear by “adding several cups of COLD water.” If the drain is not clear the label advises that a repeat application should be attempted only once, and if the drain continues to be clogged a plumber should be consulted.

The Appellate Division was divided with respect to whether defendants were entitled to summary judgment on plaintiffs’ defective design claim, but it was unanimous in affirming summary judgment on plaintiffs’ strict products liability cause of action based on an alleged failure to warn (69 AD3d at 416). The adequacy of a product’s warnings, however, even when coupled with a user’s failure to read or follow them, does not end the inquiry with respect to a defective design claim.

Our law in this area is well established. A “defectively designed product is one which, at the time it leaves the seller’s hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use” (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107 [1983] [internal quotation marks and citation omitted]). If the “utility” of a product “does not outweigh the danger inherent in its introduction into the stream of commerce,” then the product is defectively designed (id. [internal quotation marks and citation omitted]).

Defendants focus on plaintiffs mishandling of the product and asserted deficiencies in his expert’s affidavit, but, as with any motion for summary judgment, defendants must first show an entitlement to judgment as a matter of law (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]). The issue of whether a product is defectively designed such that its utility does not outweigh its inherent danger is generally one “for the jury to decide ... in light of all the evidence presented by both the plaintiff and defendant” (Voss, 59 NY2d at 108).

In support of their motion here, however, defendants state only, in effect, that lye is what it is, that everyone knows lye is dangerous, and that any variation in RDL’s composition would, by necessity, result in a different product because such an altered product would not be 100% sodium hydroxide. While it is true that lye is dangerous and that this product is lye, a mere statement in an attorney’s affirmation in support of a motion for summary judgment to that effect does not result in a shift of the burden to plaintiff to then explain how RDL could be made safer. At this stage, defendants cannot rely simply on the fact that their product is what they say it is and that everyone knows that lye is dangerous; that only begs the question at the heart of the merits of the defective design claim: knowing how dangerous lye is, was it reasonable for defendants to place it into the stream of commerce as a drain cleaning product for use by a layperson? Defendants offered no answer to this question, and thus, did not demonstrate their entitlement to judgment as a matter of law.

Plaintiff’s mishandling of the product here, alone, is not enough to entitle defendants to summary judgment. Summary judgment in a strict products liability case may be granted on the basis of the plaintiffs conduct when the plaintiffs actions constituted “the sole proximate cause” of his or her injuries (Amatulli v Delhi Constr. Corp., 77 NY2d 525, 534 [1991]). Defendants failed to show that plaintiffs handling of RDL constituted the sole proximate cause of his injuries because a fact-finder could conclude on the basis of the record before us that the product was so inherently dangerous that it should never have found its way into the stream of commerce as packaged and marketed (see Voss, 59 NY2d at 107 [“Liability attaches when the product, as designed, presents an unreasonable risk of harm to the user”]). That is to say, even with adequate warnings, a product may be so dangerous, and its misuse may be so foreseeable, that a factfinder employing the required risk-utility analysis our case law has established could reasonably conclude that “the utility of the product did not outweigh the risk inherent in marketing” it (Denny v Ford Motor Co., 87 NY2d 248, 257 [1995] [internal quotation marks and citation omitted] [listing seven factors identified as relevant to the risk-utility analysis: “(1) the product’s utility to the public as a whole, (2) its utility to the individual user, (3) the likelihood that the product will cause injury, (4) the availability of a safer design, (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced, (6) the degree of awareness of the product’s potential danger that can reasonably be attributed to the injured user, and (7) the manufacturer’s ability to spread the cost of any safety-related design changes” (id)]).

Defendants here may ultimately prevail on the merits by showing that RDL’s utility outweighs its inherent danger and by demonstrating through expert testimony that it was not feasible to design a safer, similarly effective and reasonably priced alternative product (see e.g. Voss, 59 NY2d at 108-109). On this motion, however, merely stating in an attorney’s affirmation that RDL is dangerous, that everyone knows it is dangerous, and that precise warnings of its danger were given and not followed was insufficient to entitle defendants to summary judgment as a matter of law. Defendants were required to demonstrate that RDL was reasonably safe for its intended use, but they offered no such evidence.

Accordingly, the Appellate Division order should be reversed, with costs, and the motion of defendants-respondents for summary judgment denied.

Smith, J.

(concurring). I join the Court’s unanimous opinion. I write separately to point out that our decision is the result not of the merit of plaintiffs case, but of a feature of New York procedural law.

As the Court’s opinion says, the issue on plaintiffs design defect claim is whether lye is reasonably safe for its intended use. This is an issue on which plaintiff will have the burden of proof at trial. “The plaintiff ... is under an obligation to present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner” (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 108 [1983]). To do this, plaintiff will have to show that the product can be designed in such a way “that it is safer but remains functional” (id. at 109) — i.e., that a safer version of the product would be of equivalent utility (Adamo v Brown & Williamson Tobacco Corp., 11 NY3d 545 [2008]; Felix v Akzo Nobel Coatings, 262 AD2d 447 [2d Dept 1999]).

Here, plaintiffs tried to meet that burden in an expert’s affidavit opposing defendants’ summary judgment motion, but fell short. The expert proposed several products that he called “safer” alternatives to lye, but he did not show that any alternative capable of preventing plaintiffs accident would perform as well as lye at a reasonable cost. Describing his principal proposal — a 3% to 5% solution of lye — the expert admitted that it would take “somewhat longer to do the job” of unclogging drains, and did not say how much longer.

If a record identical to the present one were developed at trial, plaintiff would fail to meet his burden of proof and the court would be required to direct a verdict for defendants. One might think, therefore, that the record would entitle defendants to summary judgment. But one who thought that would be wrong under New York law, because the initial burden to make an evidentiary showing on summary judgment rests on the moving party. We said in Alvarez v Prospect Hosp.:

“As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.” (68 NY2d 320, 324 [1986] [citations omitted]; see also Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].)

Thus the inadequacy of plaintiffs expert’s affidavit is irrelevant here, as the Court’s opinion points out, because defendants, in support of their summary judgment motion, produced no evidence of the absence of a safer but functionally equivalent alternative to lye. Defendants relied simply on a statement in an attorney’s affirmation that “the product at issue . . . cannot be designed differently without making it into an entirely different product” (emphasis omitted). The burden of making the necessary evidentiary showing might not have been hard to meet: an affidavit from someone knowledgeable in the industry — either a retained expert or an employee of one of the defendants — could have done it. But the burden was not met.

The federal courts have a different rule, which would probably lead to a different result in this case. As to issues on which the nonmoving party would have the burden of proof at trial, the United States Supreme Court has rejected the idea “that the burden is on the party moving for summary judgment to produce evidence showing the absence of a genuine issue of material fact,” and has held instead that “the burden on the moving party may be discharged by . . . pointing out to the district court . . . that there is an absence of evidence to support the nonmoving party’s case” (Celotex Corp. v Catrett, 477 US 317, 325 [1986]). If we were writing on a clean slate, I might prefer the Celotex rule to ours, but we are not, and I am not urging a change in our law. I am urging, however, that parties moving for summary judgment in the future be alert to the burden that New York law places on a moving party.

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

Order reversed, etc.

       The latter portion of that ruling is not challenged on this appeal. Claims made against other parties are also not in issue on this appeal.


author: Smith, J.

text:
    [950 NE2d 107, 926 NYS2d 371]
    In the Matter of Miguel M., Also Known as Miquel M., Appellant. Charles Barron, M.D., Director of the Department of Psychiatry at Elmhurst Hospital Center, Respondent.
    Argued March 23, 2011;
    decided May 10, 2011

      POINTS OF COUNSEL

      Mental Hygiene Legal Service, Second Judicial Department, Mineola (Scott M. Wells, Sidney Hirschfeld, Dennis B. Feld and Lesley De Lia of counsel), for appellant. I.
    Disclosure of protected health information to determine individual eligibility for assisted outpatient treatment (AOT) and to establish an AOT petitioner’s prima facie case does not constitute a public health activity pursuant to the federal Health Insurance Portability and Accountability Act regulations. (Whalen v Roe, 429 US 589; Doe v City of New York, 15 F3d 264; United States v Westinghouse Elec. Corp., 638 F2d 570; Schwenk v Kavanaugh, 4 F Supp 2d 110; Jaffee v Redmond, 518 US 1; MacDonald v Clinger, 84 AD2d 482; Arons v Jutkowitz, 9 NY3d 393; United States v Miller, 303 F2d 703; South Shore Hosp., Inc. v Thompson, 308 F3d 91; New York State Commn. on Cable Tel. v Federal Communications Commn., 571 F2d 95.) II. The Health Insurance Portability and Accountability Act Privacy Rule preempts Mental Hygiene Law § 33.13 because the federal rule provides more stringent privacy protections than the state law. (Arons v Jutkowitz, 9 NY3d 393; Law v Zuckerman, 307 F Supp 2d 705; Bayne v Provost, 359 F Supp 2d 234.) III. In the absence of compliance with Health Insurance Portability and Accountability Act provisions mandating satisfactory assurances relating to either notification or a qualified protective order, the psychiatric expert’s testimony pertaining to facts obtained from the improper disclosure of appellant’s protected health information was inadmissible. (Ginsberg v North Shore Hosp., 213 AD2d 592; Matter of Jesus A., 185 Misc 2d 39; Matter of Derek, 12 Misc 3d 1132; Keshecki v St. Vincent’s Med. Ctr., 5 Misc 3d 539.)

      Michael A. Cardozo, Corporation Counsel, New York City (Tahirih M. Sadrieh and Edward F.X. Hart of counsel), for respondent. I.
    Appellant’s hospital records were properly disclosed for a public health activity pursuant to Health Insurance Portability and Accountability Act’s Privacy Rule. (Forest Watch v United States Forest Serv., 410 F3d 115; Reno v National Transp. Safety Bd., 45 F3d 1375; Matter of K.L., 1 NY3d 362; Kansas v Hendricks, 521 US 346; Seaton v Mayberg, 610 F3d 530.) II. Health Insurance Portability and Accountability Act does not preempt the Mental Hygiene Law’s provision for disclosure of medical records pursuant to Kendra’s Law. (Matter of People v Applied Card Sys., Inc., 11 NY3d 105; California Fed. Sav. & Loan Assn. v Guerra, 479 US 272; New York State Conference of Blue Cross & Blue Shield Plans v Travelers Ins. Co., 514 US 645; Seaton v Mayberg, 610 F3d 530.) III. Appellant’s hospital records were properly disclosed for purposes of treatment. IV. Even if appellant’s medical records were disclosed in violation of Health Insurance Portability and Accountability Act, suppression would not be an appropriate remedy. (Northwestern Mem. Hosp. v Ashcroft, 362 F3d 923.) V. The disclosure of appellant’s medical records here did not violate his right to privacy. (Doe v City of New York, 15 F3d 264; Whalen v Roe, 429 US 589; O’Connor v Pierson, 426 F3d 187; Project Release v Prevost, 722 F2d 960; Matter of K.L., 1 NY3d 362.)
   OPINION OF THE COURT

Smith, J.

We hold that the Privacy Rule adopted by the federal government pursuant to the Health Insurance Portability and Accountability Act (HIPAA) prohibits the disclosure of a patient’s medical records to a state agency that requests them for use in a proceeding to compel the patient to accept mental health treatment, where the patient has neither authorized the disclosure nor received notice of the agency’s request for the records.

I

Dr. Charles Barron, as designee of the New York City Department of Health and Mental Hygiene, applied for an order under Mental Hygiene Law § 9.60 requiring “assisted outpatient treatment” (ACT) for Miguel M. The petition alleged that Miguel was suffering from a mental illness; that he was unlikely to survive safely in the community without supervision; that he had a history of failing to comply with treatment; that he was unlikely to participate in necessary treatment voluntarily; and that he needed, and would benefit from, AOT to prevent a relapse or deterioration of his mental status, which would be likely to result in serious harm to Miguel or to others.

At the hearing on the petition, Barron offered in evidence records from two hospitals relating to three occasions on which Miguel was hospitalized. A witness called by Barron testified that the hospitals had furnished the records in response to a request — a request made, it is clear from the record, without notice to Miguel. The witness acknowledged that Miguel had not authorized the release of the records, and that no court order for their disclosure had been sought or obtained.

The records were received in evidence over Miguel’s objection (Matter of M.M., 18 Misc 3d 696 [2007]), and Barron’s witness described their contents. After the hearing, Supreme Court directed that Miguel “receive and accept assisted outpatient treatment” for a period of six months. The Appellate Division affirmed (66 AD3d 51 [2009]). We granted leave to appeal (14 NY3d 712 [2010]), and now reverse.

II

The six-month duration of Supreme Court’s order expired before the Appellate Division decided this case, and the immediate controversy is therefore moot. Neither party challenges, however, the Appellate Division’s conclusion that the case presents a novel and substantial issue that is likely to recur and likely to evade review, and that therefore the exception to the rule against deciding moot disputes applies here (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]). We agree, and proceed to the merits.

Mental Hygiene Law § 9.60, known as “Kendra’s Law,” was enacted in 1999. It is named for Kendra Webdale, who was killed by a mentally ill man who pushed her off a subway platform. It says that, on a proper showing, a mentally ill person whose lack of compliance with treatment has, twice within the last 36 months, caused him or her to be hospitalized may be the subject of ACT pursuant to a plan stated in a court order (see Mental Hygiene Law § 9.60 [c], [j] [2]). Public officials identified as “directors of community services” are given the duty of enforcing Kendra’s Law (Mental Hygiene Law § 9.47 [b]), and a petition to require AOT may be filed by a director of community services or his or her designee (Mental Hygiene Law § 9.60 [e] [1] [vii]). Mental Hygiene Law § 33.13 (c) (12) permits disclosure of medical records to a director of community services who requests it in the exercise of his or her duties. Thus, the disclosure of a patient’s medical records for purposes of an AOT proceeding is permitted by state law, unless the applicable state law is preempted. Miguel argues that it is.

Miguel says that preemption is found in HIPAA (Pub L 104-191, 110 US Stat 1936 [codified in various titles of the United States Code]) and the Privacy Rule (45 CFR parts 160, 164) promulgated by the United States Department of Health and Human Services under authority granted by HIPAA § 264 (c) (1) (see Historical and Statutory Notes following 42 USCA § 1320d-2). The Privacy Rule prohibits disclosure of an identifiable patient’s health information without the patient’s authorization, subject to certain exceptions (45 CFR 164.508 [a] [1]). HIPAA § 264 (c) (2) (see Historical and Statutory Notes following 42 USCA § 1320d-2) and the Privacy Rule (45 CFR 160.203 [b]) say that contrary state laws are preempted unless they offer privacy protections that are “more stringent” than those of the federal law; New York does not offer any more stringent protection that is relevant here. The preemption issue thus comes down to whether the disclosure of Miguel’s medical records was permitted by one of the exceptions to the Privacy Rule.

Barron relies on two exceptions, those permitting disclosure for purposes of “public health” and “treatment.” It is possible to read the language of both exceptions as covering the disclosure now at issue, but in both cases the reading is strained. Considering the apparent purposes of these two exceptions, we conclude that neither fits these facts.

The public health exception permits disclosure of protected information to:

“A public health authority that is authorized by law to collect or receive such information for the purpose of preventing or controlling disease, injury, or disability, including, but not limited to, the reporting of disease, injury, vital events such as birth or death, and the conduct of public health surveillance, public health investigations, and public health interventions” (45 CFR 164.512 [b] [1] [i]).

Barron reasons that disclosure of a mentally ill person’s hospital records for purposes of requiring that person to accept ACT protects the public health, because mentally ill people might kill or injure other people — like Kendra Webdale — who, of course, are members of the public. Thus Barron, a person designated to enforce Kendra’s Law, would be a “public health authority,” collecting information for the “purpose of preventing . . . injury,” and his action to require ACT in Miguel’s case could be called a public health intervention. We are not convinced, however, that the authors of the Privacy Rule meant “public health” in this literal, but counterintuitive, sense.

The apparent purpose of the public health exception is to facilitate government activities that protect large numbers of people from epidemics, environmental hazards, and the like, or that advance public health by accumulating valuable statistical information. To disclose private information about particular people, for the purpose of preventing those people from harming themselves or others, effects a very substantial invasion of privacy without the sort of generalized public benefit that would come from, for example, tracing the course of an infectious disease. The disclosure to Barron of Miguel’s hospital records was not within the scope of the public health exception.

The treatment exception permits disclosure of protected health information “for treatment activities of a health care provider” (45 CFR 164.506 [c] [2]). “Treatment” is defined as:

“the provision, coordination, or management of health care and related services by one or more health care providers, including the coordination or management of health care by a health care provider with a third party; consultation between health care providers relating to a patient; or the referral of a patient for health care from one health care provider to another” (45 CFR 164.501).

Again, Barron’s argument is literalistic: ACT — assisted outpatient treatment — is literally “treatment” — “the provision . . . of health care ... by one or more health care providers.” But the thrust of the treatment exception is to facilitate the sharing of information among health care providers working together. We see no indication that the authors of the regulation meant to facilitate “treatment” administered by a volunteer “provider” over the patient’s objection. Disclosure for that purpose is a more serious invasion of privacy than, for example, the transmission of medical records from a patient’s primary care physician to a specialist — the sort of activity for which the treatment exception seems primarily designed. The treatment exception is inapplicable here.

We find support for our conclusion that the two exceptions Barron relies on are inapposite in the existence of other exceptions that Barron might have invoked but did not. The Privacy Rule authorizes disclosure of health information, subject to certain conditions, “in the course of any judicial or administrative proceeding,” in response to either “an order of a court or administrative tribunal” (45 CFR 164.512 [e] [1] [i]) or “a subpoena, discovery request, or other lawful process” (45 CFR 164.512 [e] [1] [ii]). Thus, Barron could have pursued Miguel’s records either by seeking a court order or by serving a subpoena. To do so in compliance with the Privacy Rule, however, Barron would have had to give notice to Miguel of his request for the records. He could not, absent extraordinary circumstances, have obtained a court order requiring disclosure without giving such notice. And the Privacy Rule’s exception for subpoenas and the like is conditioned on “satisfactory assurance” from the person seeking the information to the entity providing it either “that reasonable efforts have been made ... to ensure that the individual who is the subject of the protected health information . . . has been given notice of the request” (45 CFR 164.512 [e] [1] [ii] [A]), or that an order protecting the confidentiality of the information has been sought (45 CFR 164.512 [e] [1] [ii] [B]). In a case, like this one, to which the patient is a party, a request for a protective order would require notice to the patient.

We can see no reason, and Barron has suggested none, why notice should not have been given here. It may well be, in this case as in many others, that no valid ground for withholding the records exists; courts ruling on disclosure issues will surely be conscious, as we are, of the strong public interest in seeing that mentally ill people who might otherwise be dangerous receive necessary treatment. But it seems only fair, and no great burden on the public agencies charged with enforcing Kendra’s Law, to give patients a chance to object before the records are delivered.

We emphasize that it is far from our purpose to make the enforcement of Kendra’s Law difficult. It may often be possible to avoid all disclosure problems by getting the patient to authorize the disclosure in advance; surely many mentally ill people will, while they are under proper care, recognize that disclosure is very much in their own interest. When there is no advance authorization, patients who are given notice that their records are being sought often may not object; when they do object, their objections may often be overruled. We hold only that unauthorized disclosure without notice is, under circumstances like those present here, inconsistent with the Privacy Rule.

Ill

Barron argues in the alternative that, even if the disclosure of the records to him was unlawful — as we have held it was — Supreme Court did not err by admitting the records into evidence at the AOT hearing. HIPAA, as Barron points out, contains its own remedies for violations: civil penalties (HIPAA § 262 [a], adding 42 USC § 1320d-5) and, for the knowing and wrongful disclosure of individually identifiable health information, fines and imprisonment (HIPAA § 262 [a], adding 42 USC § 1320d-6). Neither exclusion of the records from evidence nor suppression of evidence obtained by use of the records is among the remedies listed. Barron cites decisions from other states holding that evidence obtained as a result of a HIPAA violation need not be suppressed in a criminal case (State v Carter, 23 So 3d 798, 801 [Fla Dist Ct App 2009]; State v Yenzer, 40 Kan App 2d 710, 712-713, 195 P3d 271, 272-273 [2008]; State v Straehler, 307 Wis 2d 360, 745 NW2d 431 [2007]).

We assume it is correct that, in a criminal case, a HIPAA or Privacy Rule violation does not always require the suppression of evidence. Indeed, we have held that suppression is not required in such a case where evidence was obtained as a result of a violation of New York’s physician-patient privilege (People v Greene, 9 NY3d 277 [2007]). But this case is different. It is one thing to allow the use of evidence resulting from an improper disclosure of information in medical records to prove that a patient has committed a crime; it is another to use the records themselves, or their contents, in a proceeding to subject to unwanted medical treatment a patient who is not accused of any wrongdoing. Using the records in that way directly impairs, without adequate justification, the interest protected by HIPAA and the Privacy Rule: the interest in keeping one’s own medical condition private. We therefore hold that medical records obtained in violation of HIPAA or the Privacy Rule, and the information contained in those records, are not admissible in a proceeding to compel AOT.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court for further proceedings in accordance with this opinion.

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

Order reversed, etc.


author: Jones, J. Chief Judge Lippman

text:
    [950 NE2d 118, 926 NYS2d 382]
    The People of the State of New York, Respondent, v Kenneth Hayes, Appellant.
    Argued March 23, 2011;
    decided May 10, 2011

      POINTS OF COUNSEL

      Legal Aid Society, Criminal Appeals Bureau, New York City (John Schoeffel and Steven Banks of counsel), for appellant. I.
    In this justification case which turned on the question of who first produced the knife, a police sergeant who heard two witnesses independently state that it was the wounded man — and not appellant — who had done so had a Brady duty to request their contact information, or to take some other reasonable step to preserve the exculpatory information in a form that would make it possible for a defendant to investigate it and to use it at a trial. (Brady v Maryland, 373 US 83; Youngblood v West Virginia, 547 US 867; Strickler v Greene, 527 US 263; People v Hunter, 11 NY3d 1; People v Vilardi, 76 NY2d 67; United States v Bagley, 473 US 667; Kyles v Whitley, 514 US 419; United States v Agurs, 427 US 97; Giglio v United States, 405 US 150; People v Wright, 86 NY2d 591.) II. Under New York and federal law, the trial court was required to permit the defense to use statements on cross-examination of police witnesses for the limited nonhearsay purpose, held proper in Kyles v Whitley (514 US 419 [1995]), of challenging the adequacy of their investigation into the main disputed factual issue of whether the complainant had the knife. (People v Gissendanner, 48 NY2d 543; Davis v Alaska, 415 US 308; People v Hudy, 73 NY2d 40; People v Knight, 80 NY2d 845; People v Cade, 73 NY2d 904; People v Schwartzman, 24 NY2d 241; People v Corby, 6 NY3d 231; Olden v Kentucky, 488 US 227; Delaware v Van Arsdall, 475 US 673; People v McDowell, 9 NY2d 12.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Gina Mignola and AmyJane Rettew of counsel), for respondent.
    The trial judge properly handled the issues raised by comments one officer overheard from the crowd while guarding crime scene blood evidence from contamination. (Youngblood v West Virginia, 547 US 867; People v Hilts, 13 NY3d 895; People v Rodriguez, 100 NY2d 30; Brady v Maryland, 373 US 83; People v Colon, 13 NY3d 343; People v Fuentes, 12 NY3d 259; People v Hunter, 11 NY3d 1; People v Garcia, 46 AD3d 461; DiSimone v Phillips, 461 F3d 181; United States v Rivas, 377 F3d 195.)
   OPINION OF THE COURT

Jones, J.

This appeal presents two issues for our review. First, whether the failure of the police to interview witnesses after overhearing two potentially exculpatory statements constituted a Brady violation. Second, whether defendant was improperly precluded during cross-examination from challenging the adequacy of the police investigation.

I

It is undisputed that in the early morning of August 8, 2004, Charles Shell and 10 friends attended the 1:00 a.m. showing of a movie in a Times Square theater. In the crowded theater — a two-level auditorium with a capacity for approximately 578 people — Shell and his friends were loudly talking during the early portions of the movie when someone shouted at them to be quiet. At this point, the versions of the salient facts diverge.

According to the People, when Shell looked away from the movie, he observed his friends out of their seats and facing a group of approximately 10 people standing on the balcony level of the theater. The group, which included defendant Kenneth Hayes, descended from the balcony level. Shell and his friends left their seats to approach the group and observed defendant pacing back and forth in a “rocking motion,” saying “Who want it?” When Shell confronted defendant, defendant grabbed Shell’s left wrist, blocked his right arm, punched Shell twice in the stomach, and fled from the theater. Shell realized that he had been, in fact, stabbed when he observed blood on his shirt.

Defendant claims that he went to the lower level of the theater to politely ask Shell and his friends to refrain from talking during the movie. After he made the request, Shell leapt from his seat and confronted defendant, making a gesture with respect to his belt — an indication to defendant that Shell had a weapon. Shell removed a knife from his waistband and swung at defendant with his left arm. Defendant used his left hand to grab Shell’s arm and his right hand to wrest the knife away. During the course of the altercation, defendant was pushed onto the stairs leading up to the balcony of the theater. "While he was on the ground, leaning on the stairs with possession of the knife, defendant attempted to block a further punch, but the forward momentum of Shell resulted in him being stabbed. Defendant fled the theater to escape an alleged chase by Shell’s friends.

Ultimately, defendant was apprehended outside of the movie theater by Sergeant Mack who had observed him fighting within the vestibule of the theater and throwing a metal object into the street — later recovered and identified as a gravity knife. After the arrest, in the midst of a hectic setting, Sergeant Mack then assigned officers to either secure the crime scene, control the crowd, gather evidence, or interview possible witnesses.

Sergeant Fitzpatrick was tasked with safeguarding the crime scene to prevent contamination of blood evidence. While guarding the location, Sergeant Fitzpatrick overheard two separate individuals claim, “That’s the guy [referring to Shell], ... he had the knife first, he got it taken away from him, he got what he deserved” and “That guy [Shell] pulled the knife out first, the other guy took it away from him.” Sergeant Fitzpatrick did not ascertain the identities of the potential witnesses, obtain contact information, or otherwise investigate these two statements.

During trial preparation, Sergeant Fitzpatrick disclosed these two statements to the prosecution, and the People immediately advised defendant of this newfound information. Defendant argued before the trial court that the lack of police investigation of the two statements and the failure to obtain contact information constituted a Brady violation. Defendant also sought to use the statements for the nonhearsay purpose of challenging the completeness of the police investigation. The trial court ruled that no Brady violation was committed by the People and precluded defense counsel, during the cross-examination of Sergeant Fitzpatrick, from eliciting testimony regarding the two statements. After a jury trial, defendant was acquitted of first degree assault, but convicted of second degree assault and weapon possession.

In a 3-2 decision, the Appellate Division affirmed the judgment, holding that the People did not violate their disclosure obligations under Brady and had no duty to obtain the identities or contact information of the bystanders (72 AD3d 441, 441-442 [1st Dept 2010]). Furthermore, the Appellate Division held that the trial court properly exercised its discretion in limiting defendant’s cross-examination for the purpose of challenging the thoroughness of the police investigation (id. at 442). A Judge of this Court granted defendant leave to appeal (15 NY3d 751), and we now affirm.

II

In the seminal case Brady v Maryland (373 US 83, 87 [1963]), the United States Supreme Court held that a criminal defendant’s right to due process is violated when the prosecution suppresses favorable evidence that is material to guilt because every criminal defendant should “be afforded a meaningful opportunity to present a complete defense” (California v Trombetta, 467 US 479, 485 [1984]). “To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material” (People v Fuentes, 12 NY3d 259, 263 [2009]; see also Strickler v Greene, 527 US 263, 281-282 [1999]).

Here, defendant claims that the police and the People committed a Brady violation by failing to interview, or at a minimum, acquire the contact information of the two individuals who made the statements overheard by Sergeant Fitzpatrick. While defendant’s argument is couched in Brady terms, when distilled, he essentially seeks a rule that would impose an affirmative duty upon the police to obtain potentially exculpatory evidence for the benefit of a criminal defendant. However, this Court has declined to impose such an obligation.

In People v Alvarez (70 NY2d 375 [1987]), the defendant, charged with various Vehicle and Traffic Law offenses for intoxicated driving, asked this Court to require the police to obtain and preserve additional breath samples for later testing because the initial samples were destroyed when tested by the police. We concluded that there is no “basis for a rule, sought by defendants in this case, that would require the police to affirmatively gather evidence for the accused” (Alvarez, 70 NY2d at 381). And in People v Reedy (70 NY2d 826, 827 [1987]), where the defendant sought a copy of a personal account written by the victim of an attempted rape, we held, among other things, that the People had no obligation to disclose evidence “not in their possession or control.” In addition, the Supreme Court has similarly noted that it is “[l]ess clear from our access-to-evidence cases the extent to which the Due Process Clause imposes on the government the additional responsibility of guaranteeing criminal defendants access to exculpatory evidence beyond the government’s possession” (Trombetta, 467 US at 486).

While this Court has instructed that “[a] necessary corollary of the duty to disclose is the obligation to preserve evidence until a request for disclosure is made” (People v Kelly, 62 NY2d 516, 520 [1984]), defendant erroneously equates the word “preserve” with “obtain” or “acquire.” There is a difference between preserving evidence already within the possession of the prosecution and the entirely distinct obligation of affirmatively obtaining evidence for the benefit of a criminal defendant. The protection of Brady extends to “discoverable evidence gathered by the prosecution” (Kelly, 62 NY2d at 520) and seeks to ensure the disclosure, or prevent the destruction of exculpatory information already within the People’s possession (see e.g. Kelly, 62 NY2d at 520 [in a larceny and criminal possession of property case, the Court found a Brady violation when the police permanently lost property within their possession]; People v Cortijo, 70 NY2d 868 [1987] [Court held no Brady violation occurred where the defendant had an opportunity to use the allegedly exculpatory information at trial, but the People are only required to disclose exculpatory material information in their control]; People v Brown, 67 NY2d 555, 559 [1986] [“(T)he People unquestionably have a duty to disclose exculpatory material in their control”]). Here, the People met their obligation under Brady when they disclosed the statements to defendant; the prosecution was not required to impart identifying information unknown to them and not within their possession.

The recent federal case of United States v Rodriguez (496 F3d 221 [2d Cir 2007]) is illustrative. There, the defendant sought to compel production of any notes created by the government during their investigation of witnesses. The government claimed that no notes were created memorializing the interviews, and the defendant responded that this constituted a Brady violation. The Second Circuit held that while exculpatory information that had been procured must be disclosed, the government investigators had no affirmative obligation to create notes for the benefit of the defendant (id. at 224-225). Here, similarly, while the People fulfilled their duty by apprising defendant of the content and substance of the statements, they had no responsibility to acquire the contact information of the makers of the statements.

Accordingly, we adhere to our precedent, decline to impose an affirmative obligation upon the police to obtain exculpatory information for criminal defendants, and hold that the failure of the police and the People to investigate the sources of the two statements was not a Brady violation.

III

Defendant additionally argues that he was improperly precluded from utilizing the two statements and challenging the thoroughness of the police investigation pursuant to Kyles v Whitley (514 US 419 [1995]). Defendant’s argument is unavailing.

In Kyles, the Supreme Court, discussing the materiality under Brady of witness statements that were not disclosed, acknowledged that it is a common and accepted tactic for defendants to challenge the adequacy of a police investigation. There, during the investigation of a murder, the police relied upon an informant named “Beanie.” Although Beanie should have been considered a suspect, the police failed to question and investigate him, instead relying on him despite his “eager[ness] to cast suspicion on Kyles” (id. at 425), as evidenced by an internally inconsistent, and continuously evolving narrative of the incident. The Supreme Court reasoned that “the defense could have examined the police to good effect on their knowledge of Beanie’s statements and so have attacked the reliability of the investigation in failing even to consider Beanie’s possible guilt” (id. at 446). If this line of inquiry were pursued, “the defense could have laid the foundation for a vigorous argument that the police had been guilty of negligence” (id. at 447).

Despite this recognized strategy, a criminal defendant does not have an unfettered right to challenge the adequacy of a police investigation by any means available. It is well settled that “[a]n accused’s right to cross-examine witnesses ... is not absolute” (People v Williams, 81 NY2d 303, 313 [1993]). The scope of cross-examination is within the sound discretion of the trial court (see People v Corby, 6 NY3d 231, 233 [2005]) and it must “weigh the probative value of such evidence against the possibility that it ‘would confuse the main issue and mislead the jury ... or create substantial danger of undue prejudice to one of the parties’ ” (id. at 234; see People v Davis, 43 NY2d 17, 27 [1977]).

Defendant contends that the statements were germane to his justification defense because it established that Shell was the initial aggressor and possessed the knife first. Based on that premise, defendant sought to utilize the statements and argue that the investigation was inadequate because the police: (1) failed to fingerprint the knife, and (2) failed to interview, or obtain the contact information of the two individuals who made the statements.

While a defendant has a constitutional right to present a defense, “[t]he right to present a defense ‘does not give criminal defendants carte blanche to circumvent the rules of evidence’ ” (People v Cepeda, 208 AD2d 364, 364 [1st Dept 1994], quoting United States v Almonte, 956 F2d 27, 30 [2d Cir 1992]). Challenging the adequacy of a police investigation may constitute a permissible nonhearsay purpose where appropriate, but there is no rule requiring the automatic admission of any hearsay statement (see Buie v Phillips, 298 Fed Appx 63, 66 [2d Cir 2008] [there is no “unfettered right to introduction of hearsay testimony bearing no assurance of reliability”]). Here, the trial court did not abuse its discretion in concluding that the use of the anonymous hearsay in cross-examination would have created an unacceptable risk that the jury would consider the statements for their truth.

Furthermore, the hearsay statements were not so critical that their exclusion deprived defendant of due process (cf. Chambers v Mississippi, 410 US 284 [1973]). Penal Law § 35.15 (2) (a) provides that deadly physical force may not be used unless:

“(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating.”

Despite the conflicting accounts of the incident in question, it is undisputed that at a certain point during the altercation, defendant came into possession of a knife and Shell was unarmed. Defendant’s justification defense must be viewed at this focal point and the true, crucial inquiry is whether defendant was justified in the use of deadly physical force against an unarmed Shell (see People v Aska, 91 NY2d 979, 981 [1998]). Even accounting for the claim that Shell continued to struggle with, and swing at defendant, Shell was no longer capable of using deadly physical force against defendant. Therefore, the relevancy of the statements is diminished because the question of whether the knife was initially possessed by Shell is not decisive of the issue of defendant’s justified use of deadly physical force at the time of the alleged stabbing. As such, the two statements that Shell initially possessed the knife did not have the great probative force anticipated by defendant.

For the foregoing reasons, we hold that the trial court did not abuse its discretion in prohibiting the use of the hearsay statements and precluding defendant from challenging the adequacy and thoroughness of the police investigation where the probative force of the proposed evidence was outweighed by the dangers of speculation, confusion, and prejudice (see generally Davis, 43 NY2d at 27).

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

Chief Judge Lippman

(dissenting). I agree that the apparent failure of the police to collect contact information respecting the putative witnesses overheard by Sergeant Fitzpatrick was not a due process violation sanctionable under Brady v Maryland (373 US 83 [1963]); this was not a case in which information favorable to the accused in the possession or control of the prosecution was suppressed and, accordingly, Brady does not come into play (see id. at 87). It does not follow, however, and I do not agree, that defendant was properly precluded from using the statements overheard by Fitzpatrick to question the adequacy of the investigation upon which his prosecution was premised.

In analyzing this second point, the majority first acknowledges that the admission of out-of-court statements for the purpose of showing that the police were aware of, yet failed to pursue, information potentially exculpatory to the accused, is not barred by the hearsay rule — indeed, that the defense tactic of relying upon such statements is “common and accepted” (majority op at 52, citing Kyles v Whitley, 514 US 419, 446-447 [1995]). The majority, however, concludes that the trial court did not abuse its discretion in excluding the statements at issue because their probative value was outweighed by their potential to engender “speculation, confusion, and prejudice” (majority op at 54). This analysis is, in my view, flawed, principally because the record does not disclose that there was any exercise of discretion involved in the trial court’s decision to deny defendant use of the bystander statements, but also because the exercise of discretion now described by the majority is not consistent with a defendant’s basic right to present a defense.

The trial court excluded the proffered bystander statements simply as hearsay, stating at the time of its ruling, “I decide whether [the statement] comes in under the rules of evidence. And if I rule that you’re bringing it out for an impermissible purpose and it’s hearsay, it doesn’t come out” (Appellant’s Appendix at A401). This was nothing more than an erroneous application of the hearsay rule — a legal error — arising from the court’s misunderstanding of the rule and the purpose for which the statements were proposed to be introduced. It should be corrected as such; there is absolutely no indication that the court, although recognizing that there was no legal bar to the statements’ admission, nevertheless determined that they should not be received because, after performing a discretionary balancing of the sort the majority now retrospectively imputes, it had concluded they would likely mislead the jury.

But, even if some discretionary exercise had been involved, it would have been an abuse of discretion to deny defendant the limited use of the statements sought. The statements were facially indicative of the existence of independent witnesses whose accounts of the altercation agreed with defendant’s in crucial respects and were supportive of his claim that his conduct was justified. While, because of the cited police omission, the reliability of the statements could not be tested, there was, as noted, no hearsay bar to their admission precisely to show that an investigative lapse had occurred leaving room for reasonable doubt as to the adequacy of the evidence offered by the People to meet their burden of disproving the defense of justification (see Penal Law § 35.00; Matter of Y.K., 87 NY2d 430, 433 [1996]). The use of the statements for this legally permissible purpose would, of course, have been accompanied by appropriate limiting instructions, and as we have frequently noted, it is presumed that such instructions are heeded (see e.g. People v Tosca, 98 NY2d 660 [2002]). Moreover, the People would have been afforded the opportunity to respond with evidence showing that their investigation was in fact suitably thorough.

The discretionary preclusion of defendant’s use of the statements on cross-examination would, under these circumstances, have been insupportable since a trial court has no discretion to cut off a legally permissible, non-collateral, indeed potentially exculpatory, line of inquiry by a criminal defendant. Such discretion would be utterly incompatible with the constitutional right to present a defense (see People v Carroll, 95 NY2d 375, 385-386 [2000]; People v Hudy, 73 NY2d 40, 57 [1988], abrogated on other grounds by Carmell v Texas, 529 US 513 [2000]; see also Chambers v Mississippi, 410 US 284, 294 [1973] [“The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations”]). It is no answer to say, as the majority does, that the relevancy of the statements at issue is “diminished” (majority op at 54) because it is undisputed that at the time of the stabbing defendant possessed the knife. If the stabbing occurred under the circumstances described by defendant — as an incident of defendant’s disarming of the initial aggressor at close quarters — it is plain that defendant’s possession of the knife at the moment of the stabbing, and the concomitant circumstance that Shell was then unarmed, would not have been preclusive of a finding of justification (see e.g. People v Huntley, 59 NY2d 868, 869 [1983], affg 87 AD2d 488, 491 [4th Dept 1982]).

Accordingly, while due process was not violated by the State’s apparent failure to develop leads seemingly favorable to defendant, it was violated by the court’s failure to permit defendant to bring what were evidently highly material inadequacies in the State’s investigation to the factfinder’s attention. The State in our adversary system of justice has no affirmative duty to seek out evidence favorable to the accused, but when its failure to do so may reasonably be understood to impair the adequacy of the proof of guilt, judicial discretion is not properly deployed to shield the alleged infirmity from the jury’s scrutiny.

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

Order affirmed.

      . While the majority alludes to some discretionary exercise in which the trial court concluded that there was an unacceptable risk that the bystander statements would be considered for their truth, there is no evidence of any such exercise or conclusion in the record. Nor is it explained how such a conclusion in this case would be reconciled with the presumption, most frequently invoked by the prosecution, that limiting instructions are abided.

      . The People, for example, maintain that although Officer Fitzpatrick did not record the contact information of the declarant bystanders, there were numerous other officers on the scene assigned to interview witnesses and that, if the declarants’ contact information was not obtained, it was probably because, after the declarants were interviewed, it was determined that they had no first-hand information.