author: Smith, J. Rivera, J. Pigott, J.

text:
    [3 NE3d 687, 980 NYS2d 350]
    The People of the State of New York, Appellant, v Donald O’Toole, Respondent.
    Argued November 14, 2013;
    decided December 10, 2013

      POINTS OF COUNSEL

      Cyrus R. Vance, Jr., District Attorney, New York City (Timothy C. Stone and Susan Gliner of counsel), for appellant.
    Because the essential element of “force” with respect to both the first and second degree robbery charges filed against defendant was predicated on the display of a gun by defendant’s accomplice, when defendant was initially acquitted on the first charge and convicted on the second, the People could not properly be collaterally estopped from presenting evidence about the display of the gun at a retrial of the second degree robbery conviction. (People v Scarola, 71 NY2d 769; People v Lewis, 69 NY2d 321; People v Hines, 97 NY2d 56; People v Berkowitz, 50 NY2d 333; People v Acevedo, 69 NY2d 478; People v Aguilera, 82 NY2d 23; People v Plevy, 52 NY2d 58; Montana v United States, 440 US 147; Duffy v Vogel, 12 NY3d 169; Bansbach v Zinn, 1 NY3d 1.)

      Steven Banks, The Legal Aid Society, New York City (Katheryne M. Martone of counsel), for respondent.
    The Appellate Division correctly determined that, in light of the first jury’s acquittals of all counts involving a gun and extortion attempts, the trial court erred in permitting evidence of the alleged display of a firearm during the robbery and demands for protection money. (People v Acevedo, 69 NY2d 478; Ashe v Swenson, 397 US 436; Dowling v United States, 493 US 342; Yeager v United States, 557 US 110; United States v Oppenheimer, 242 US 85; United States v Kramer, 289 F2d 909; Sealfon v United States, 332 US 575; People v Goodman, 69 NY2d 32; People v Berkowitz, 50 NY2d 333; People v Tucker, 55 NY2d 1.)
   OPINION OF THE COURT

Smith, J.

We hold that on the facts of this case defendant’s acquittal of a charge of first degree robbery that was based on the alleged display of a firearm barred the People from introducing, at a later trial for second degree robbery, evidence that a firearm was displayed.

I

Defendant was charged with first and second degree robbery and other crimes. The first degree charge was brought under Penal Law § 160.15 (4), which is applicable when a person “forcibly steals property” and “he or another participant in the crime . . . [djisplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.” The second degree charge was based on Penal Law § 160.10 (1). Under that statute, the second degree crime is committed when a person “forcibly steals property and ... is aided by another person actually present.”

At defendant’s first trial, Phillip Horsey, the manager of a barber shop, testified that defendant told him he was entitled to “money from the shop,” and that if he did not get it he would “close the shop.” About an hour after this conversation, according to Horsey’s testimony, a large man walked into the barber shop and handed Horsey a telephone. When Horsey picked up the phone, he heard defendant’s voice telling him to “[g]ive my man the jewels.” Horsey then turned to face the man from whom he had taken the phone, and saw that the man was pointing a gun at his stomach. Horsey, followed by the armed man, walked out the door and encountered defendant in front of the shop. After some conversation, Horsey gave defendant a valuable gold chain.

The jury at the first trial acquitted defendant of first degree robbery and convicted him of second degree robbery. The Appellate Division reversed (on an issue not relevant here) and ordered a new trial on the second degree robbery charge (People v O’Toole, 39 AD3d 419 [1st Dept 2007]).

At the second trial, defendant moved to preclude the People from introducing evidence that his alleged accomplice used a gun in the robbery. The trial court denied the motion, and Horsey testified at the second trial, as he did at the first, that the large man pointed a gun at him. Defendant was again convicted of second degree robbery. The Appellate Division again reversed, holding that the People were collaterally estopped by the earlier verdict from presenting evidence of the gun (People v O’Toole, 96 AD3d 435 [1st Dept 2012]). A Judge of this Court granted the People leave to appeal (20 NY3d 934 [2012]), and we now affirm.

II

This case is controlled by our holding in People v Acevedo (69 NY2d 478, 480 [1987]) that “the doctrine of collateral estoppel can be applied to issues of ‘evidentiary’ fact.” As we explained in Acevedo, in the analysis of collateral estoppel issues, facts essential to the second judgment are considered “ultimate” facts; other facts are only “evidentiary” (id. at 480 n 1). Under Acevedo, when an issue of evidentiary fact has been resolved in a defendant’s favor by a jury, the People may not, at a later trial, present evidence that contradicts the first jury’s finding.

The facts of Acevedo illustrate the principle. Acevedo was first tried for, and acquitted of, robbing a man named Jakiela. Both Jakiela and Acevedo testified at the first trial, giving totally inconsistent versions of their interactions on the morning in question: Jakiela testified to a robbery at a gas station, Acevedo to a sexual encounter in a park. Later, defendant was tried for robbing another man on the same morning, and Jakiela was called as a People’s witness. He again testified that he had seen Acevedo that morning at the gas station, not the park. We held that the use of this testimony at the second trial was impermissible because, giving a “practical, rational reading to the record of the first trial,” it was apparent that the first jury had rejected Jakiela’s version of events (id. at 487-488).

Here, as in Acevedo, we see no “practical, rational” escape from the conclusion that the jury’s finding at the first trial was inconsistent with evidence presented by the People at the second one. The first jury acquitted defendant of first degree robbery and convicted him of second degree robbery. It could not logically have done so without finding that the People had failed to prove beyond a reasonable doubt that the robbery involved the display of a firearm. The dissent would distinguish Acevedo on the ground that in that case the first jury affirmatively found Acevedo’s testimony to be true and Jakiela’s untrue, whereas here the first jury found only reasonable doubt about Horsey’s testimony that he was robbed at gunpoint; but the distinction is a false one. In any criminal case, an acquittal is only a finding of reasonable doubt, not a finding that defendant is in fact innocent. The first jury’s acquittal in Acevedo implied only that the jury was not convinced beyond a reasonable doubt that Jakiela was telling the truth, and our comment that the jury “concluded that Jakiela’s testimony was incredible” (69 NY2d at 488) meant no more than this.

The People, while arguing that Acevedo is distinguishable, also suggest that we should overrule it. The Acevedo holding has, the People argue, been undermined by the United States Supreme Court’s decision in Dowling v United States (493 US 342 [1990]). But Acevedo and Dowling are not inconsistent. Dowling decided that the Due Process and Double Jeopardy Clauses of the Federal Constitution do not require the application of collateral estoppel where “the prior acquittal did not determine an ultimate issue in the present case” (id. at 348). Acevedo did not purport to decide any federal or state constitutional question. It held only that, as a matter of New York law, collateral estoppel applies to issues of evidentiary as well as ultimate fact. Dowling furnishes no reason to abandon that holding.

It is nonetheless true, as the People and the dissent point out, that the application of Acevedo can cause practical problems. There is force to the People’s argument, paraphrased by the dissent, that the facts they sought to prove at the second trial “were the facts the victim told police, and . . . they should not be required to put on a case pretending the facts were any different” (dissenting op at 340). The likelihood that such problems will arise leads us to suggest that collateral estoppel should be applied sparingly in criminal cases—as it has been to date; this is the first case since Acevedo, decided 26 years ago, in which we have held the doctrine applicable.

But here, the problems Acevedo presents could have been— and could still be, at a retrial—handled without unreasonable difficulty. The People could refrain from asking Horsey questions that call for testimony about the firearm, and could warn Horsey not to volunteer it. If it becomes apparent, in this case or any other, that the Acevedo rule cannot practicably be followed if a necessary witness is to give truthful testimony, then collateral estoppel should not be applied. Nor should defense counsel be allowed to take unfair advantage of the dilemma that Acevedo creates for the People. Nothing in Acevedo, or in our opinion today, bars the People from walking through any door that defendant may open (see People v Massie, 2 NY3d 179 [2004]; People v Melendez, 55 NY2d 445 [1982]).

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

Rivera, J.

(concurring). I concur in the result and agree that People v Acevedo (69 NY2d 478 [1987]) controls the decision on this appeal so that the People were barred by collateral estoppel from introducing evidence of the displayed firearm at the second trial. I part ways with the majority where it advocates “that collateral estoppel should be applied sparingly in criminal cases” (majority op at 339).

The rule announced in Acevedo that collateral estoppel applies to both evidentiary and ultimate facts ensures fairness to the defendant and remains as important and vital today as the day it was decided. The majority points only to the practical application of collateral estoppel to justify retreat from the doctrine in the criminal context (see majority op at 339). Yet, those concerns proved unavailing in Acevedo where we adopted a broad interpretation of collateral estoppel even while recognizing that “[t]he governing principles are more easily articulated than applied” (Acevedo, 69 NY2d at 487). We did so because a “[defendant, having once been acquitted by a jury, should not at a subsequent trial be subjected to the burden of meeting issues that were already necessarily decided in [defendant’s] favor” (id. at 485, citing People v Goodman, 69 NY2d 32, 37 [1986]).

I cannot join in the majority’s suggestion that Acevedo should be relegated to the margins of legal doctrine, or altogether dismissed. Instead, I remain convinced of the wisdom of a prohibition against anyone being forced to defend against “ ‘charges or factual allegations which [he or she] overcame in [an] earlier trial’ ” (Acevedo, 69 NY2d at 487, quoting Wingate v Wainwright, 464 F2d 209, 214 [1972]).

Pigott, J.

(dissenting). In a retrial of defendant Donald O’Toole on a charge of robbery in the second degree (Penal Law § 160.10 [1] [aided by another person actually present]), the People sought to offer into evidence testimony that the person who was “actually present” with O’Toole appeared to have a gun, and that O’Toole twice attempted to extort protection money from Phillip Horsey, the robbery victim. The evidence was not to be offered to prove robbery in the first degree; defendant had been acquitted of that charge. It was, however, important to the People because those were the facts the victim told police, and, they argued, they should not be required to put on a case pretending the facts were any different. O’Toole moved to preclude that evidence, on the ground that it amounted to factual findings resolved in his favor at the first trial. Supreme Court denied his motion, concluding that specific factual findings could not be gleaned from the jury’s verdict. In my view, Supreme Court’s decision was correct. I would reverse the order of the Appellate Division.

In People v Acevedo (69 NY2d 478 [1987]), we applied the doctrine of collateral estoppel to preclude the People from relitigating a defendant’s presence at the location of an alleged robbery, in a separate trial of the same defendant for a different robbery. It was the first time we had upheld the application of collateral estoppel in a criminal case (see People v Aguilera, 82 NY2d 23, 29 [1993]); and there was a good reason for it.

The defense at Acevedo’s first trial—where it was alleged that he had robbed one Jakiela and in which he was acquitted of robbery and criminal possession of a weapon—had several unusual aspects, which influenced our decision in that appeal, and which the majority now ignores.

Acevedo’s alleged robbery victim, Jakiela, testified that Acevedo and a knife-wielding companion accosted him at a gas station in Buffalo and forced him to hand over cash and a gold ring. Acevedo, however, testified that Jakiela had concocted a false accusation for the purpose of revenge. According to Acevedo, Jakiela had made a sexual advance to him when the two men were smoking marijuana together one night in Acevedo’s car, in a local park. Acevedo testified that he had forced Jakiela to get out of the car and walk some distance in the cold to his own vehicle, eliciting a vow by Jakiela to “get” Acevedo.

Crucially, defense counsel at Acevedo’s first trial did not contend that the People had failed to prove any particular element of the crimes, and did not challenge the complainant’s ability to identify defendant as one of his assailants (see 69 NY2d at 488). Instead, the defense focused entirely on Jakiela’s lack of credibility (see id. at 482-483). In fact, as noted by the prosecution, “if Mr. Jakiela’s testimony is to be believed, the Defendant is guilty, [and his counsel] makes no bones about that” (id. at 482). In other words, as we summarized, “[b]oth the People and the defendant posited the case as an all-or-nothing proposition” (id. at 487-488), based on whether the jury believed Acevedo or Jakiela.

The Acevedo jury acquitted defendant on both counts, and, we decided, the jury must necessarily have concluded that Jakiela’s testimony was incredible, and that “defendant and Jakiela encountered each other in the park (as related by defendant), not at the gas station (as related by Jakiela)” (69 NY2d at 487). “Unlike many other criminal cases, this one was devoid of alternative possibilities” (id.). We concluded that, in Acevedo’s second trial, involving a separate alleged robbery that same night, the People could not introduce Jakiela’s testimony that Acevedo had been at the gas station, since that issue had been necessarily decided in Acevedo’s favor at the first.

As we made clear in Acevedo, “[d]efendant’s burden to show that the jury’s verdict in the prior trial necessarily decided a particular factual issue raised in the second prosecution is a heavy one indeed, and as a practical matter severely circumscribes the availability of collateral estoppel in criminal prosecutions” (69 NY2d at 487). This is in large part because criminal verdicts are general ones; it is usually not possible to ascertain whether a certain factual finding led to the acquittal, unlike a civil trial verdict, with its specific interrogatories answered by the jury.

In Acevedo, we could reach the conclusion that the first jury must necessarily have found that Acevedo was not at the gas station because the dispositive issue for the jury was credibility. We reasoned that, “by acquitting defendant . . . , the jury necessarily concluded that Jakiela’s testimony was incredible” (69 NY2d at 488) and that no gas station robbery ever occurred. As we took care to explain, the jury must have reached this affirmative factual finding because the case was “devoid of alternative possibilities” (id. at 487).

That is not the case here. The jury in O’Toole’s first trial could have based its decision that O’Toole was not guilty of first-degree robbery on a number of grounds other than an affirmative finding that his companion did not display what appeared to be a firearm. Most obviously, as Supreme Court noted, the jury could have acquitted because reasonable doubt prevented it from reaching an affirmative finding one way or the other.

It is possible, for example, that the O’Toole jury decided that the People had not shown beyond a reasonable doubt that O’Toole’s accomplice displayed a firearm, but at the same time decided that there was sufficient evidence to prove that O’Toole forcibly stole Horsey’s gold chain by using his accomplice’s large physical size and proximity to Horsey (and Horsey’s child) as a threat. If so, the jury could rationally have acquitted O’Toole of first-degree robbery (Penal Law § 160.15 [4] [displays what appears to be a firearm]), but convicted him of second-degree robbery (Penal Law § 160.10 [1] [aided by another person actually present]). The jury would then have reached its verdicts without affirmatively finding that there was no firearm.

Nor would such a jury finding be irrational or surprising. The jury may reasonably have been skeptical that a gun was displayed, given the public nature of a barber shop; the jurors may have concluded that Horsey was embellishing, either to save face or to try to strengthen the prosecution’s case. Or, in light of skepticism by some jurors, the jury may have reached a compromise verdict, by agreeing on the second-degree robbery conviction.

But a jury’s decision that a factual proposition has not been proven beyond a reasonable doubt is not the same as a jury’s affirmative finding that the proposition is not true. Put another way, being doubtful that there was a gun is not the same as finding that there was no gun. Collateral estoppel would be justified only if it were clear that the jury must necessarily have found that there was no gun.

This does not mean that defendant would not have benefitted from his acquittal. He would not have been recharged or retried on a first-degree robbery charge. No matter what the proof, he could not have been convicted of more than second-degree robbery.

Similar reasoning requires a reversal also with respect to the evidence that O’Toole tried to extort protection money from Horsey, which O’Toole also sought to preclude in his second trial. The first jury, in acquitting O’Toole of attempted second-degree grand larceny, did not necessarily reach an affirmative finding that there was no extortion; the jury may simply have decided that the People did not prove the elements of the crime beyond a reasonable doubt.

In my view, a strict and narrow interpretation of our holding in Acevedo is required. Although the majority takes a different approach, there is one thing we agree on: “collateral estoppel should be applied sparingly in criminal cases” (majority op at 339).

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

Order affirmed.


source: Caselaw Access Project

author: Chief Judge Lippman.

license: Public Domain

text:
    [3 NE3d 1151, 980 NYS2d 903]
    Herbert Kolbe et al., Appellants, v Christine J. Tibbetts, as Superintendent of Schools of the Newfane Central School District, et al., Respondents.
    Argued November 14, 2013;
    decided December 12, 2013

      POINTS OF COUNSEL

      Paul S. Bamberger, Civil Service Employees Association, Inc., Albany, and Reden & O’Donnell, LLP, Buffalo (Terry M. Sugrue and Joseph E. O’Donnell of counsel), for appellants.
    I. The word placement, sentence structure, punctuation and context of collective bargaining agreement section 6.5.3’s “coverage provided” clause unambiguously demonstrate that “the coverage which is in effect for the unit” is qualified by “at such time as the employee retires,” thereby establishing that the coverage provided to retirees shall be the same coverage as was in effect when the employees retired. (Riverside S. Planning Corp. v CRP/Extell Riverside, L.P., 13 NY3d 398; Reiss v Financial Performance Corp., 97 NY2d 195; Atwater & Co. v Panama R.R. Co., 246 NY 519; Corhill Corp. v S.D. Plants, Inc., 9 NY2d 595; Della Rocco v City of Schenectady, 252 AD2d 82; Matter of Jacob, 86 NY2d 651.) II. The “coverage provided” clause of collective bargaining agreement section 6.5.3 continues to operate during retirement for the same period of time that the rest of section 6.5.3 operates: until the employee reaches age 70. (Eighth Ave. Coach Corp. v City of New York, 286 NY 84; Greenfield v Philles Records, 98 NY2d 562.) III. Health insurance “coverage” provided to the unit expressly includes specific co-pay amounts. IV The defendants’ alternative interpretations of collective bargaining agreement section 6.5.3 are without merit. (Greenfield v Philles Records, 98 NY2d 562.) V Pursuant to settled principles of law involving the interpretation of collective bargaining agreements, it is clear that plaintiffs’ health insurance coverage from the collective bargaining agreements in effect when they retired may not be diminished without their consent. (Hudock v Village of Endicott, 28 AD3d 923; Della Rocco v City of Schenectady, 252 AD2d 82; Myers v City of Schenectady, 244 AD2d 845; DiBattista v County of Westchester, 35 Misc 3d 1205[A], 2008 NY Slip Op 52731[U]; International Union, United Auto., Aerospace, & Agric. Implement Workers of Am. [UAW] v Yard-Man, Inc., 716 F2d 1476; Chemical Workers v Pittsburgh Plate Glass Co., 404 US 157.) VI. Defendants’ remaining defenses should be dismissed and the judgment and order of the trial court should be reinstated for the reasons stated by the trial court. (Matter of Duchnowski, 31 NY2d 991.)

      Hodgson Russ LLP, Buffalo (Karl W. Kristoff and Jeffrey T. Fiut of counsel), for respondents.
    I. The Appellate Division correctly held that the collective bargaining agreements permit defendants to modify the plaintiffs’ prescription co-pays. (Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470; Matter of Westmoreland Coal Co. v Entech, Inc., 100 NY2d 352; WWW Assoc. v Giancontieri, 77 NY2d 157; Matter of Giblin v Village of Johnson City, 75 AD3d 887; Schron v Troutman Sanders LLP, 20 NY3d 430; Goldman v White Plains Ctr. for Nursing Care, LLC, 11 NY3d 173; Persky v Bank of Am. N.A., 261 NY 212; Teluro v Telaro, 25 NY2d 433; Wilkins v Huber, 303 AD2d 986; Della Rocco v City of Schenectady, 252 AD2d 82.) II. New York State law permits defendants to modify plaintiffs’ prescription co-pays. (Sega v State of New York, 60 NY2d 183; Henry Modell & Co. v Minister, Elders & Deacons of Ref. Prot. Dutch Church of City of N.Y., 68 NY2d 456; Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 20 NY3d 651; Citigifts, Inc. v Pechnik, 112 AD2d 832, 67 NY2d 774; Clark v Cuomo, 66 NY2d 185.) III. The Appellate Division order should be affirmed because plaintiffs have not established damages. (Gordon v Dino De Laurentiis Corp., 141 AD2d 435; Lexington 360 Assoc. v First Union Natl. Bank of N. Carolina, 234 AD2d 187; R.P. Brennan Gen. Contrs. & Bldrs., Inc. v CPS 1 Realty, LP, 63 AD3d 619; Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186; Zuckerman v City of New York, 49 NY2d 557.)

      Lisa M. King, Albany, Rita J. Strauss and John F. Kershko, for New York State Public Employees Federation, AFL-CIO, amicus curiae.
    The Appellate Division committed error of law by misinterpreting the parties’ contract, and that misinterpretation deprives retirees of vested health insurance benefits. (International Union, United Auto., Aerospace, & Agric. Implement Workers of Am. [UAW] v Yard-Man, Inc., 716 F2d 1476, 465 US 1007; Bidlack v Wheelabrator Corp., 993 F2d 603; Bazzone v Automotive Indus. Welfare Fund, 860 F2d 1088; Myers v City of Schenectady, 244 AD2d 845, 91 NY2d 812; Della Rocco v City of Schenectady, 252 AD2d 82; Hudock v Village of Endicott, 28 AD3d 923; Williams v Village of Endicott, 91 AD3d 1160; Matter of Warner v Board of Educ., Cobleskill-Richmondville Cent. Sch. Dist., 108 AD3d 835; South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d 272.)

      D. Jeffrey Gosch, Syracuse, for Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, amicus curiae.
    I. All New York cases that have construed contractual retiree health insurance language similar to the language at issue here have held such language requires the benefits be vested for life.
      (Myers v City of Schenectady, 244 AD2d 845, 91 NY2d 812; Della Rocco v City of Schenectady, 252 AD2d 82; Hudock v Village of Endicott, 28 AD3d 923; Williams v Village of Endicott, 91 AD3d 1160; Matter of Warner v Board of Educ., Cobleskill-Richmondville Cent. Sch. Dist., 108 AD3d 835; DiBattista v County of Westchester, 35 Misc 3d 1205[A], 2008 NY Slip Op 52731[U]; Millington v Village of S. Glens Falls, 30 Misc 3d 405; Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326; Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Chemical Workers v Pittsburgh Plate Glass Co., 404 US 157.) II. Even federal courts, including the Second Circuit, have held that contractual retiree health insurance is vested for the life of the retiree, unless there is clear evidence of a contrary intent. (American Fedn. of Grain Millers, AFL-CIO v International Multifoods Corp., 116 F3d 976; Schonholz v Long Is. Jewish Med. Ctr., 87 F3d 72; Joyce v Curtiss-Wright Corp., 171 F3d 130; International Union, United Auto., Aerospace, & Agric. Workers of Am. [UAW] v Yard-Man, Inc., 716 F2d 1476; New York State Corn Officers & Police Benevolent Assn., Inc. v State of New York, 911 F Supp 2d 111; Bazzone v Automotive Indus. Welfare Fund, 860 F2d 1088; Noe v PolyOne Corp., 520 F3d 548.) III. The Fourth Department majority’s decision departs from established precedent and therefore should be reversed. (Myers v City of Schenectady, 244 AD2d 845, 91 NY2d 812; Della Rocco v City of Schenectady, 252 AD2d 82; Williams v Village of Endicott, 91 AD3d 1160; Matter of Baker v Board of Educ., 29 AD3d 574, 7 NY3d 708; Matter of Jones v Board of Educ. of Watertown City School Dist., 30 AD3d 967; Matter of Warner v Bethlehem Cent. School Dist., 72 AD2d 824; Dye v New York City Tr. Auth., 88 AD2d 899; Antinore v State of New York, 49 AD2d 6, 40 NY2d 921; Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326.)

      Timothy G. Kremer, Latham, Jay Worona and Pilar Sokol, for New York State School Boards Association, amicus curiae.
    The school district’s actions at issue herein were permitted under statutory provisions that set out the conditions pursuant to which school districts may diminish retiree health care benefits in conformity with public policy.
   OPINION OF THE COURT

Chief Judge Lippman.

This case calls on us to decide whether certain collective bargaining agreements conferred upon plaintiff retirees a vested right to the same health insurance coverage they had when they retired and, if so, whether unilateral modifications to that coverage are nonetheless permissible under either the contract terms or the New York Insurance Moratorium Law. We hold that the contracts establish a vested right to a continuation of the same health coverage under which plaintiffs retired, until they reach age 70, and that the Insurance Moratorium Law does not provide a basis for abrogating retirees’ vested contractual rights. However, because issues of fact remain as to the intended scope of plaintiffs’ right, remittal for further factual development is required to determine whether the challenged increases in co-pays for prescription drugs amount to a breach of contract.

Plaintiffs are four former noninstructional employees of the Newfane Central School District in Niagara County who retired between 2003 and 2008. Defendants are the Newfane Superintendent of Schools, the Newfane Board of Education and its President, and the Newfane Central School District (collectively, the District). During their employment, plaintiffs were members of a collective bargaining unit represented by the Civil Service Employees Association (CSEA) in negotiations concerning a series of collective bargaining agreements (CBAs) with the District. One of the plaintiffs retired while the 1999-2003 CBA was in effect; the other three plaintiffs retired under the 2003-2007 CBA.

Each CBA contained a section describing the health insurance plans available to employees, including the various co-pay amounts the insured would owe under each plan for prescription drugs. The 1999-2003 and 2003-2007 CBAs provided that employees could choose between designated insurance plans. Although two of the plans in the 1999-2003 contract were supplanted by a different plan in the 2003-2007 version, the co-pay amounts in both contracts were based on a two-tiered system assigning co-pays depending on a prescription drug’s classification as either generic or brand-name. The co-pays ranged from $0 to $5.

The CBAs in effect when plaintiffs retired also provided that employees could opt into a “flexible spending” benefit program that allowed them to contribute pretax dollars into an account to be used for health care expenses, including co-pays. Contributions were capped at varying amounts, depending on an employee’s enrollment status. The 1999-2003 CBA established flexible spending máximums at $215 for single enrollees, $430 for couples, and $480 for families. The 2003-2007 CBA increased these caps to $250, $500, and $540, respectively.

In January 2010, well after plaintiffs had retired, the CSEA and the District executed a successor CBA, which was retroactively effective to 2007 and set to expire in 2012. The 2007-2012 CBA implemented changes to both the co-pay regime and the flexible spending benefit. The two-tiered co-pay system was converted to a three-tiered model with charges of $7 for generic, $15 for “preferred brand name,” and $35 for “non-preferred brand name” prescription drugs. The new CBA also increased the caps on enrollees’ flexible spending contributions to $325 (single), $625 (couple), and $700 (family). In addition, the 2007-2012 contract introduced an employer matching program under which the District would furnish $1 for each dollar contributed by enrollees, up to $50, $75, and $100, for each respective category.

Provisions concerning health insurance benefits for retirees were identical across the three CBAs. Section 6.4.6, entitled “Health Insurance for Retired Employees,” provided that “[rjetired employees shall be eligible to continue group health insurance upon payment of premium to the District five (5) days prior to the first of the month in which the premium is due.” Section 6.5.3 provided that “[f]ull-time employees who retire from the Newfane Central School District under the New York State Employees’ Retirement System plan shall be entitled to receive credit toward group health insurance premiums (including District contribution toward Flexible spending account) for accumulated sick leave.” The premium credit was to be calculated as a percentage according to a formula and to be paid by the District “until the employee reaches age 70.” The same provision contained the sentence that gave rise to the present litigation, “[t]he coverage provided shall be the coverage which is in effect for the unit at such time as the employee retires.”

By letters dated December 30, 2009, the District informed plaintiffs that their co-pays would now be governed by the three-tier system under the terms of the 2007-2012 CBA, resulting in an increase from their previous co-pay charges of between $7 and $30. Plaintiffs were also notified of the increased flexible spending caps, though the letter made no mention of the employer matching program.

Plaintiffs subsequently commenced this action for breach of contract, alleging that by increasing their co-pays, the District had violated the terms of the CBAs in effect when plaintiffs retired. They sought a declaratory judgment as to their rights under the CBAs, reinstatement of the co-pay rates in effect at the time of their retirement, and reimbursement for additional expenditures made as a result of the modifications.

The complaint alleged that the language in section 6.5.3, which applied to plaintiffs as full-time employee-members of the New York State Employees’ Retirement System who retired with accumulated sick leave, entitled them to the same health insurance coverage they were receiving upon retirement, until they reached age 70, and that the co-pay increase violated that right. After Supreme Court denied its motion to dismiss, the District filed an answer asserting, insofar as relevant here, the affirmative defenses that plaintiffs failed to state a cause of action, that the CBAs in effect when plaintiffs retired had expired and were superseded by the 2007-2012 CBA, and that the challenged modifications were permissible under New York State law.

Plaintiffs then moved for summary judgment and submitted extrinsic evidence in the form of their own affidavits attesting that the parties intended for the District to maintain health insurance coverage for retirees until age 70 that was identical to the coverage in effect upon their retirement, along with the draft and final versions of the CBAs and predecessor agreements. The District cross-moved for summary judgment. Defendants argued, in relevant part, that the modifications to plaintiffs’ health care benefits were permitted under chapter 30 of the 2009 Laws of New York State (Insurance Moratorium Law) because corresponding changes were made to the benefits of active employees. They also argued that the complaint failed to allege an injury since plaintiffs made no claim that the enhanced flexible spending benefit was insufficient to offset the more expensive co-pays. In support, the District submitted affidavits of the School District’s Business Administrator and the President of the Board of Education, both of whom were actively involved in the collective bargaining negotiations for the 2007-2012 CBA.

Supreme Court granted summary judgment for plaintiffs and denied defendants’ cross motion for summary judgment. Finding the contract language unequivocal, the court held that plaintiffs’ right to insurance coverage “equivalent to that in effect at the time each plaintiff retiree retired” had vested upon retirement, rejecting the District’s argument that plaintiffs’ right had expired with the CBAs under which they had retired. The court further held that the increased co-pays violated that right. The District was ordered to reinstate plaintiffs’ prior health insurance plans and to compensate plaintiffs for the sums they expended in excess of their obligations under the reinstated coverage, plus interest and costs. The court also concluded that the Insurance Moratorium Law was not meant to affect contractual rights, but rather only prescribed “a bottom floor, beneath which school districts . . . were forbidden to go in diminishing benefits.” Finally, acknowledging that plaintiffs’ injury was indeterminate due to the potential offset provided by the increased flexible spending limits, the court found that summary judgment was proper despite the need for an accounting to calculate damages.

The Appellate Division reversed, denied plaintiffs’ motion, granted defendants’ cross motion for summary judgment, and dismissed the complaint (101 AD3d 1623 [4th Dept 2012]). The court found the contract did not prevent the District from increasing plaintiffs’ co-pays because the language in section 6.5.3 “does not specify that an equivalent level of coverage will continue during retirement” (id. at 1624). With regard to the Moratorium Law, the court found that “[i]nasmuch as the benefits for represented employees were likewise reduced, defendants have complied with the statutory requirement that they not reduce plaintiffs’ coverage below the level of coverage provided to active employees” (id.).

Two Justices dissented and, because they found the extrinsic evidence inconclusive, would have remitted the case for a hearing to consider the meaning of the terms “benefit” and “coverage” in sections 6.4.6 and 6.5.3 and whether such terms established different rights for retirees who retired with accumulated sick leave (id. at 1625-1626). Plaintiffs appealed to this Court as of right (see CPLR 5601 [a]).

As a general rule, contractual rights and obligations do not survive beyond the termination of a collective bargaining agreement (Litton Financial Printing Div., Litton Business Systems, Inc. v NLRB, 501 US 190, 207 [1991]). However, “[r]ights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement” (id.), and we must look to well established principles of contract interpretation to determine whether the parties intended that the contract give rise to a vested right. “[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Greenfield v Philles Records, 98 NY2d 562, 569 [2002]). The language upon which plaintiffs base their claim reads as follows: “[t]he coverage provided shall be the coverage which is in effect for the unit at such time as the employee retires.”

Contrary to the Appellate Division majority’s conclusion, the plain meaning of this provision unambiguously establishes that plaintiffs have a vested right to the “coverage which [was] in effect for the unit at such time as [they] retire[d],” until they reach age 70. It is well established that when reviewing a contract, “[p] articular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties manifested thereby” (Riverside S. Planning Corp. v CRP/Extell Riverside, L.P., 13 NY3d 398, 404 [2009]). The phrase “at such time as the employee retires” is most logically read to qualify the immediately preceding phrase, “the coverage which is in effect for the unit.” Moreover, the phrase “[t]he coverage provided shall be” evinces the mandatory nature of the obligation, insulating it from unilateral alteration. As to duration, this sentence appears in the same CBA section affording retirees who retire as full-time employees under the New York State Employees’ Retirement System the right to use accumulated sick leave as a credit against health insurance premiums during retirement “until the employee reaches age 70.” Given the sentence’s placement, a clear inference can be drawn that the parties intended the right to continued coverage to operate for the same period as the section as a whole, i.e., until the employee reaches 70. Including the right to coverage in close proximity to this durational language is also evidence of an intent that it should vest upon retirement rather than terminate with the expiration of the CBA. Since each CBA is typically effective for only a few years, a construction of the operative sentence in section 6.5.3 that would limit it to the duration of the agreement has the potential of ‘‘render[ing] the benefit inconsequential, ... as the plaintiffs no longer would be in a position to negotiate with the [District] over future benefits” (Poole v City of Waterbury, 266 Conn 68, 95, 831 A2d 211, 228 [2003]).

In construing this contract language differently, the Appellate Division placed undue emphasis on the absence of an express covenant that the “level of health coverage will not be reduced or that the annual cost will not increase” (101 AD3d at 1624), drawing the conclusion therefrom that the promise of continuing coverage necessarily expired along with the relevant CBA. That conclusion both conflicts with the most natural reading of the sentence and renders meaningless the durational provision “until the employee reaches age 70.” As the contract is clear on its face, there is no need for this Court to rule on whether New York applies an inference of vesting for retiree health insurance rights (see e.g. International Union, United Auto., Aerospace, & Agric. Implement Workers of Am. [UAW] v Yard-Man, Inc., 716 F2d 1476 [6th Cir 1983]).

The crux of the parties’ disagreement, then, is not the existence but the scope of the vested right. Plaintiffs contend that their entitlement to the “coverage which is in effect for the unit at such time as the employee retires” obligates the District to provide plaintiffs with exactly the same plans described in the CBAs. Under this approach, “coverage” would encompass both benefits, such as covered procedures and network providers, as well as costs, including co-pays ranging from $0 to $5; this “coverage” would be locked in upon retirement and remain frozen until the insured’s 70th birthday. By extension, the limitations on plaintiffs’ contributions to their flexible spending accounts presumably would also remain fixed at the levels specified in the CBAs in effect upon their retirement for the same duration, and plaintiffs would be unable to benefit from the employer matching program introduced in the 2007-2012 CBA. Notably, the term “coverage” is not defined in either contract; nor is there an explanation of whether the term denotes identical benefits and/or costs. However, plaintiffs argue that their interpretation is reasonable since, once employees retire, they are no longer represented by the union in collective bargaining negotiations (see Chemical Workers v Pittsburgh Plate Glass Co., 404 US 157, 172, 184 [1971] [holding that retiree benefits are a permissive, not mandatory, subject of collective bargaining]), and, as a result, it is “logical to assume that the bargaining unit intended to insulate retirees from losing important insurance rights during subsequent negotiations by using language in each and every contract which fixed their rights to coverage as of the time they retired” (Della Rocco v City of Schenectady, 252 AD2d 82, 84 [3d Dept 1998]).

Defendants, on the other hand, argue that plaintiffs’ entitlement to the “same coverage” should be afforded a more flexible interpretation. Under this view, the contract language merely obligates defendants to provide equivalent coverage to that which was “in effect for the unit at such time as the employee retires,” allowing the District to modify retirees’ benefits so long as such modifications do not substantially alter the overall package. The District contends that agreeing to fixed medical coverage would have been contrary to the interests of both parties at the bargaining table. As recognized by the Sixth Circuit, flexible terms of coverage allow employers to account for constantly rising health care costs, since “it is the rare medical innovation that costs less than the one it replaces” (Reese v CNH Am. LLC, 694 F3d 681, 683-684 [6th Cir 2012]), as well as the reality that insurance plans do not remain static over time. The District also argues that inflexibility is equally unappealing for retirees, who “want eligibility for . . . up-to-date medical procedures and drugs” (id. at 684), and would presumably derive benefit from inflationary or otherwise negotiated increases to benefits such as flexible spending contributions.

In our view, the parties have advanced two plausible interpretations of the operative provision in section 6.5.3 of the CBAs, making it appropriate for the Court to consider extrinsic evidence outside the four corners of the contracts (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). The documentary evidence submitted on summary judgment does not, however, resolve the ambiguity, particularly because the affidavits focus largely on whether, in negotiating the 2007-2012 CBA, the CSEA and the District intended for the co-pay modifications to apply to retirees. Neither the affidavits nor the final and draft versions of predecessor CBAs shed light on the nature and scope of the phrase in section 6.5.3 mandating that “[t]he coverage provided shall be the coverage which is in effect for the unit at such time as the employee retires.” Because an issue of fact remains as to whether the parties intended for the right to the “same coverage” to preclude any modifications to the benefits or their attendant costs, including prescription co-pays, it is necessary to remit the case to Supreme Court for a hearing on this issue. Inquiry is required into the definitional breadth of “coverage” as well as the degree of precision with which the parties employed the phrase “in effect for the unit at such time as the employee retires.”

In connection with remittal, we would note that courts in some jurisdictions have had occasion to address the scope of a vested right to health coverage during retirement as a question of law, rather than fact (see e.g. Poole, supra; Reese v CNH Am. LLC, 694 F3d 681 [6th Cir 2012]; Diehl v Twin Disc, Inc., 102 F3d 301 [7th Cir 1996]). What is evident, however, is that unions and employers are free to negotiate the terms of such provisions as they see fit and the terms of active employees’ health insurance coverage during retirement are properly subjects for collective bargaining. Determining the scope of the right conferred in the instant case thus requires further factual development regarding the parties’ intent.

Nevertheless, should the District successfully establish that the parties contemplated a vested right to equivalent, rather than identical, coverage until age 70, the reasoning of our sister courts is instructive in evaluating whether the modifications to plaintiffs’ co-pay charges violated their contractual right. In particular, a finding that the parties intended for coverage to evolve in tandem with fluctuations in the health care market and advances in medical technology would logically place the burden on plaintiffs to “demonstrate that the changes to their benefits are not substantially commensurate with the benefits provided under the agreements in effect at the time of the retirees’ retirement, when viewing the group of plaintiffs as a whole” (Poole, 266 Conn at 105, 831 A2d at 234). Stated another way, the “changes should be examined for their effect on the class of retirees as a whole, to determine if they have significantly reduced their general level of benefits” (Diehl, 102 F3d at 311). Scrutinizing the changes “in their totality for their effect upon the class of retirees as a group” (id. at 311), rather than evaluating any net cost increases or diminished benefits for individual plaintiffs in isolation, would ensure the efficient adjudication of claims and allow the District a reasonable framework within which to evaluate future modifications. Depending on findings as to the intended definition of “coverage,” whether modifications “substantially reduced the provision of services” and/or “substantially increased the cost” of health care should thus depend on the effect of the changes on “the group of plaintiffs as a whole” (Poole, 266 Conn at 107, 831 A2d at 235).

Here, the relevant “group” is the retirees who, like plaintiffs, qualify for continuing coverage under section 6.5.3 of the CBAs. If the District successfully demonstrates that the parties intended to create an entitlement to coverage equivalent to that which they received upon retirement, and the cost of co-pays is deemed a material aspect of the “coverage” promised, consideration should also be given to the increase in the flexible spending benefit insofar as it may offset the significance of the modification.

Finally, we reject the District’s argument that, regardless of plaintiffs’ contractual right to the “same coverage,” the 2009 Insurance Moratorium Law allows the District to modify plaintiffs’ coverage because a corresponding modification was made in the 2007-2012 CBA for active employees. The statute provides, in relevant part, that,

“[f]rom on and after June 30, 1994 until May 15, 2010, a school district, board of cooperative educational services, vocational education and extension board or a school district . . . shall be prohibited from diminishing the health insurance benefits provided to retirees and their dependents or the contributions such board or district makes for such health insurance coverage below the level of such benefits or contributions made on behalf of such retirees and their dependents by such district or board unless a corresponding diminution of benefits or contributions is effected [sic] from the present level during this period by such district or board from the corresponding group of active employees for such retirees” (L 1994, ch 729, as extended by L 2009, ch 30 [emphasis supplied]).

The District’s interpretation of the statute relies on the erroneous conclusion that the legislature’s silence regarding contracted-for health coverage should be read as an intention to abrogate contractual rights. However, the Insurance Moratorium Law’s primary purpose was to prevent school districts from eliminating or reducing retiree health insurance benefits that were voluntarily conferred as a matter of school district policy, not rights negotiated in the collective bargaining context (see Assembly Mem in Support, Bill Jacket, L 1996, ch 83 at 6, 1996 McKinney’s Session Laws of NY at 2049-2050). The 1994 final report of the Temporary Task Force on Health Insurance for Retired Educational Employees, which originally recommended the legislation, proposed amending the then-temporary law to apply to contractually vested rights. Specifically, the Task Force proposed that the legislature

“mak[e] it clear that any negotiated health insurance benefits for present employees upon retirement can be affected in the same manner as any retiree’s health benefits can be under the present temporary legislation; i.e., once retired a retiree’s health insurance benefits may be diminished in a similar manner as negotiated for active employees without violation of the negotiated provision covering future retirees” (Final Rep of Temp Task Force on Health Ins for Retired Educ Empls at 6 [Dec. 1, 1994] [emphasis supplied]).

Significantly, the legislature never adopted this proposal, or any of the Task Force’s proposed amendments to the temporary statute then in effect, but instead enacted it into permanent law unchanged.

In light of this legislative history, as well as the statute’s plain language, Supreme Court correctly concluded that the statute only prescribed “a bottom floor, beneath which school districts and certain boards were forbidden to go in diminishing benefits. It was not meant to eviscerate contractual obligations and decades of contract law.”

Accordingly, the order of the Appellate Division should be modified, without costs, by denying defendants’ cross motion for summary judgment and, as so modified, affirmed.

Judges Graffeo, Read, Smith, Pigott, Rivera and AbdusSalaam concur.

Order modified, without costs, by denying defendants’ cross motion for summary judgment and, as so modified, affirmed.

      . Despite the fact that the successor CBA was retroactively effective to 2007, it is undisputed that even those plaintiffs who retired in 2008 effectively retired under the 2003-2007 CBA, since the subsequent CBA was not executed until 2010. This stipulation accords with the reality that these plaintiffs were not represented by the CSEA in the portion of the negotiations that took place after their retirement, and that the bargains struck in the 2007-2012 agreement would thus not be enforceable by them (see Chemical Workers v Pittsburgh Plate Glass Co., 404 US 157, 172 [1971]; Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326, 332 [1998]).

      . Because plaintiffs here fall within the confines of section 6.5.3, we need not address retirees’ rights governed by section 6.4.6.

      . It was also clearer in those cases that the parties contemplated future modifications to health coverage—due either to the inclusion of language suggesting that the employers retained the right to make alterations (see Poole, 266 Conn at 100-103, 831 A2d at 231-233; Diehl, 102 F3d at 309-310), or to past practices indicative of the parties’ understanding that reasonable modifications to benefits were permissible (see Reese, 694 F3d at 684; see also Zielinski v Pabst Brewing Co., Inc., 463 F3d 615, 618-619 [7th Cir 2006]).


author:
Graffeo, J.
      Smith, J.

text:
    [4 NE3d 346, 981 NYS2d 336]
    The People of the State of New York, Respondent, v Cavell Craig Tyrell, Appellant. (App Term No. 10-290.) The People of the State of New York, Respondent, v Cavell Craig Tyrell, Appellant. (App Term No. 10-288.)
    Argued November 13, 2013;
    decided December 12, 2013

      POINTS OF COUNSEL

      Steven Banks, The Legal Aid Society, New York City (Harold V. Ferguson, Jr., of counsel), for appellant in the first and second above-entitled actions.
    The Appellate Term erred when it held that appellant’s plea proceeding demonstrated that appellant had pleaded guilty knowingly, intelligently and voluntarily. (Boykin v Alabama, 395 US 238; People v Lopez, 71 NY2d 662; People v Harris, 61 NY2d 9; Brady v United States, 397 US 742; United States v Dominguez Benitez, 542 US 74; Bordenkircher v Hayes, 434 US 357; Hanson v Phillips, 442 F3d 789; Parke v Raley, 506 US 20; Henderson v Morgan, 426 US 637; People v Moore, 71 NY2d 1002.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Ryan Gee and Patrick J. Hynes of counsel), for respondent in the first and second above-entitled actions.
    Defendant’s complaints about his guilty plea are not preserved for appellate review. In any event, the existing record demonstrates that defendant pleaded guilty knowingly, voluntarily, and intelligently. (People v McNair, 13 NY3d 821; People v Clarke, 93 NY2d 904; People v Johnson, 82 NY2d 683; People v Mackey, 77 NY2d 846; People v Mayers, 74 NY2d 931; People v Lopez, 71 NY2d 662; People v Boyd, 12 NY3d 390; People v Mox, 20 NY3d 936; People v Toxey, 86 NY2d 725; People v Serrano, 15 NY2d 304.)
   OPINION OF THE COURT

Graffeo, J.

In Boykin v Alabama (395 US 238 [1969]), the United States Supreme Court held that a defendant who enters a guilty plea must voluntarily and intelligently waive several federal constitutional rights, namely, the right to a trial by jury, the right to confront one’s accusers and the privilege against self-incrimination. Because the records in the cases before us are silent as to defendant’s waiver of these fundamental rights, the pleas must be vacated.

I

In the first of two appeals involving defendant Cavell Craig Tyrell (County index No. 570026/10), a police officer observed defendant and another person sell a small quantity of marihuana to two individuals in February 2009. The officer immediately stopped all four participants, recovering money and a small bag of marihuana from defendant, and another bag of marihuana from one of the buyers. Defendant was charged by misdemeanor complaint with criminal sale of marihuana in the fourth degree (Penal Law § 221.40) and criminal possession of marihuana in the fifth degree (Penal Law § 221.10 [1]).

Defendant appeared for arraignment, with counsel, two days after his arrest. The prosecutor offered a sentence of time served in exchange for a guilty plea. In response, defense counsel queried whether a “marijuana ACD” (adjournment in contemplation of dismissal) was available. The prosecutor answered in the negative. Defense counsel then stated that “[w]e have a disposition. At this time [defendant] authorizes me to withdraw his previously entered plea of not guilty and enter a plea of guilty to Penal Law Section 221.10, criminal possession of marijuana in the fifth degree.” The colloquy concluded with the court’s imposition of the sentence: “Time served. Enter judgment.”

Defendant appealed from the judgment of conviction and sentence, seeking vacatur of his plea on the basis that it was not voluntary, knowing and intelligent. Specifically, he asserted that the plea was invalid because the record did not affirmatively demonstrate the waiver of his Boykin rights.

The Appellate Term affirmed (37 Misc 3d 16 [App Term, 1st Dept 2012]), reasoning that defendant failed to preserve his Boykin claim for appellate review by not bringing a postallocution motion to withdraw the plea. As an “alternative holding,” the court found that the plea colloquy evinced a voluntary, knowing and intelligent plea. A Judge of this Court granted defendant leave to appeal (19 NY3d 1105 [2012]), and we now reverse.

II

In the second case (County index No. 570027/10), the same defendant was arrested in October 2009 following his participation in a buy-and-bust operation involving the sale of marihuana to an undercover officer. As a result, defendant was charged in a misdemeanor complaint with criminal sale of marihuana in the fourth degree (Penal Law § 221.40).

Later that same day, defendant appeared with counsel for arraignment. At the outset of the proceeding, the prosecutor offered defendant a sentence of 15 days in jail in exchange for a guilty plea to the crime charged. Defendant, through counsel, refused the offer. After a discussion regarding potential bail terms, defense counsel informed the court that defendant would be willing to plead guilty for time served. The court rejected the request, but offered a jail sentence of 10 days. Defense counsel responded that defendant was willing to accept that offer. Defendant then stated that he agreed to plead guilty and acknowledged his participation in the drug sale. The court accepted defendant’s plea and immediately imposed the 10-day jail sentence.

Defendant appealed from the judgment of conviction and sentence, arguing that his plea must be vacated because it was not entered voluntarily, knowingly and intelligently. As in the first case, he urged that the waiver of his Boykin rights was nonexistent.

Affirming the conviction (36 Misc 3d 133[A], 2012 NY Slip Op 51309[U] [App Term, 1st Dept 2012]), the Appellate Term concluded that defendant’s claim was unpreserved because he did not file a CPL 220.60 (3) motion to withdraw or a CPL 440.10 motion to vacate. Alternatively, the court reviewed the plea minutes and determined that the plea was valid. A Judge of this Court granted defendant leave to appeal, and we now reverse.

m

As a threshold matter, the People contend that the Appellate Term correctly found that defendant’s claims are unpreserved in both cases. Relying on People v Lopez (71 NY2d 662 [1988]), the People maintain that defendant was required to file a postallocution motion to preserve his contentions and that his failure to do so renders us without authority to review them. Defendant counters that we should analogize these cases to People v Louree (8 NY3d 541 [2007]), where we held that a defendant can raise a Catu violation—i.e., a claim that the plea was involuntary because of the trial court’s failure to inform defendant of a term of postrelease supervision—on direct appeal notwithstanding the absence of a postallocution motion. Under the particular circumstances of these cases, we conclude that defendant’s Boykin claims are reviewable on direct appeal.

In Lopez, we stated that “in order to preserve a challenge to the factual sufficiency of a plea allocution there must have been a motion to withdraw the plea under CPL 220.60 (3) or a motion to vacate the judgment of conviction under CPL 440.10” (Lopez, 71 NY2d at 665). Subsequent case law has made clear that a postallocution motion is generally required to raise other “claim[s] that a guilty plea is invalid”—even those unrelated to the factual recitation—and that “[u]nder certain circumstances, this preservation requirement extends to challenges to the voluntariness of a guilty plea” (People v Peque, 22 NY3d 168, 182 [2013]; see also People v Clarke, 93 NY2d 904, 906 [1999]; People v Johnson, 82 NY2d 683, 685 [1993]).

But in Lopez we carved out a narrow exception to the preservation requirement for the “rare case” in which “the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea” (Lopez, 71 NY2d at 666). We also recognized a limited exception in Louree, concluding that a defendant can raise a Catu claim on direct appeal because of “the actual or practical unavailability of either a motion to withdraw the plea” or a “motion to vacate the judgment of conviction” (Louree, 8 NY3d at 546; see also Peque, 22 NY3d at 182-183 [“Taken together, Lopez and Louree establish that where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record, preservation is not required. At the same time, there are significant constraints on this exception to the preservation doctrine”]).

Here, whether we characterize these cases as falling within the Lopez/Louree exception or treat defendant’s claims as implicating rights of a constitutional dimension directed to the heart of the proceedings—i.e., a mode of proceedings error for which preservation is not required—defendant’s Boykin claims are reviewable on direct appeal. Contrary to the Appellate Term’s suggestion, defendant could not have brought a CPL 220.60 (3) plea withdrawal motion in either case because the plea and sentence occurred during the same proceeding (see CPL 220.60 [3] [providing that a motion to withdraw must be made “before the imposition of sentence”]). Likewise, he could not have filed a CPL 440.10 motion because the error in these cases was “clear from the face of the trial record” (People v Stewart, 16 NY3d 839, 840 [2011]; see also People v Cooks, 67 NY2d 100, 104 [1986]; CPL 440.10 [2] [c]). Putting aside any practical difficulties in defendant’s ability to bring a postallocution motion, the complete absence of any indication that defendant waived his Boykin rights could also be viewed as a mode of proceedings error for which preservation is not required. We need not, however, decide which category applies because on these records, defendant’s Boykin claims are clearly reviewable on direct appeal. We therefore turn to the merits.

IV

Defendant asserts that the records of the plea proceedings in both cases did not establish that he pleaded guilty voluntarily, knowingly and intelligently because there were no affirmative indicia of the waiver of his constitutional rights. The People respond that, taken as a whole and read in context, the plea colloquies were sufficient.

It is well settled that a guilty plea will be upheld if “it was entered voluntarily, knowingly and intelligently” (People v Haffiz, 19 NY3d 883, 884 [2012] [internal quotation marks and citation omitted]). When a defendant opts to plead guilty, he must waive certain constitutional rights—the privilege against self-incrimination and the rights to a jury trial and to be confronted by witnesses (see Boykin, 395 US at 243). But we have repeatedly rejected a formalistic approach to guilty pleas and have “steered clear of a uniform mandatory catechism of pleading defendants in favor of broad discretions controlled by flexible standards” (People v Alexander, 19 NY3d 203, 219 [2012] [internal quotation marks and citation omitted]). A guilty plea therefore will not be invalidated “solely because the Trial Judge failed to specifically enumerate all the rights to which the defendant was entitled and to elicit from him or her a list of detailed waivers before accepting the guilty plea” (People v Harris, 61 NY2d 9, 16 [1983]). Indeed, a valid waiver could be established where the record shows that the defendant consulted with his attorney about the constitutional consequences of a guilty plea (see North Carolina v Alford, 400 US 25, 29 n 3 [1970]; Hanson v Phillips, 442 F3d 789, 801 [2d Cir 2006]).

At the same time, our cases have held that to constitute a knowing, voluntary and intelligent plea, there must be “an affirmative showing on the record” that the defendant waived his constitutional rights (People v Fiumefreddo, 82 NY2d 536, 543 [1993]; see also Boykin, 395 US at 242 [requiring an “affirmative showing” that the guilty plea was “intelligent and voluntary”]; Harris, 61 NY2d at 17 [“To be sure, the record must show an intentional relinquishment or abandonment of a known right or privilege” (interned quotation marks and citations omitted)]). Consequently, a record that is “silent will not overcome the presumption against waiver by a defendant of constitutionally guaranteed protections” (Harris, 61 NY2d at 17). Succinctly put: “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused intelligently and understandingly rejected his constitutional rights. Anything less is not waiver” (id. [internal quotation marks, ellipses, brackets and citation omitted]; see also Boykin, 395 US at 242 [same]).

Applying these principles to the cases before us, we conclude that the records do not affirmatively demonstrate defendant’s understanding or waiver of his constitutional rights. In each case, there is a complete absence of discussion of any of the pertinent constitutional rights; none are addressed by the court, defense counsel or defendant. Nor is there any indication that defendant spoke with his attorney regarding the constitutional consequences of taking a plea—in fact, these cases were both resolved during arraignment within days of arrest. Put simply, the records in these cases are inadequate to uphold the judgments of conviction and, contrary to the dissent’s position, the pleas must be vacated (see United States v Dominguez Benitez, 542 US 74, 84 n 10 [2004] [“(W)hen the record of a criminal conviction obtained by guilty plea contains no evidence that a defendant knew of the rights he was putatively waiving, the conviction must be reversed”]; Boykin, 395 US at 244 [reversing the conviction “because the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty” (internal quotation marks and citation omitted)]). Moreover, the People do not dispute that the accusatory instruments in both cases should be dismissed because defendant has already served his sentences (see People v Hightower, 18 NY3d 249, 253 [2011]; People v Dreyden, 15 NY3d 100, 104 [2010]; compare People v Allen, 39 NY2d 916, 917-918 [1976]).

Finally, contrary to the dissent’s assertion, we signal no retreat from the principle that trial courts retain broad discretion in the taking of pleas and need not follow any kind of rigid catechism. We merely apply the well-settled proposition that the record as a whole must contain an affirmative demonstration of the defendant’s waiver of his fundamental constitutional rights—a requirement the dissent neglects to mention. And although the dissent suggests that a defendant must establish prejudice even where the record is completely silent as to his waiver of constitutional rights, Boykin holds directly to the contrary.

Accordingly, in each case, the order of the Appellate Term should be reversed, defendant’s guilty plea vacated and the misdemeanor complaint dismissed.

Smith, J.

(dissenting). In People v Nixon (21 NY2d 338, 355 [1967]), we renounced what we referred to as “the catechism system” for taking guilty pleas. We held that “[i]t should never be enough to undo a plea because of some omission in inquiry at the time of plea without a showing of prejudice” (id.). We reaffirmed the Nixon holding in People v Harris (61 NY2d 9, 16-19 [1983]), saying that we did not read Boykin v Alabama (395 US 238 [1969]) to require a “ritualistic recitation of the rights waived upon a guilty plea.” Later, in People v Lopez (71 NY2d 662, 665 [1988]), we held that “in order to preserve a challenge to the factual sufficiency of a plea allocution there must have been a motion to withdraw the plea”; we made an exception only for the “rare case” where the record of the allocution “clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea” and where the trial court has not eliminated that doubt by further inquiry (id. at 666).

Under Nixon, Harris and Lopez, the mere omission of a recital from the allocution does not lead automatically to the nullification of a guilty plea. There must be a showing, either on the record of the plea proceeding itself or in a motion to withdraw the plea, that it was not in fact knowingly, voluntarily and intelligently entered.

To date, our principal departure from the Nixon/Harris/Lopez approach has been in People v Catu (4 NY3d 242, 245 [2005]), in which we held that “the failure of a court to advise of post-release supervision requires reversal of the conviction,” regardless of whether defendant was prejudiced by the omission. I joined the Catu decision, and I do not suggest that we can or should overrule it. But it set us on a long and troubled journey that I would not, if I had the choice to make over, embark on again (see e.g. People v Hill, 9 NY3d 189 [2007]; People v Sparber, 10 NY3d 457 [2008]; Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358 [2008]; People v Williams, 14 NY3d 198 [2010]; People v Lingle, 16 NY3d 621 [2011]; People v Pignataro, 22 NY3d 381 [decided Dec. 12, 2013]).

I now fear that we may be making a similar mistake. The majority seems to hold that at least some of the so-called “Boykin rights” must be recited in a plea allocution, and that if they are not the defendant is entitled to plea withdrawal, regardless of whether he was prejudiced by the omission or whether he has made a motion to withdraw his plea. I do not know how many pleas will be put in jeopardy by this holding. Not many, I hope, because the recital of Boykin rights is customary, but, as these cases show, the custom is not always observed, especially where the case is a relatively minor one. Today’s holding, especially if it is rigidly applied, has the potential to do real harm to the efficient administration of justice by invalidating freely-entered guilty pleas that result in entirely fair plea agreements.

And it is hard for me to imagine that today’s holding will do any real good. I agree that the practice of reciting the Boykin rights on the record is well-advised, but its chief advantage lies in preventing false claims of the “if I had only known” variety by defendants who later change their minds about their pleas. Has any defendant ever really been misled into pleading guilty by a failure to recite the Boykin litany? I have never heard of a plea allocution in which a defendant, told, for example, that he is waiving his right to trial by jury, responded by saying: “Oh, I didn’t know that, and now that I know it I’m not pleading guilty.”

I find it most unlikely that this defendant was hoodwinked into pleading guilty by ignorance of his Boykin rights. He had a lawyer at each of the plea proceedings. I have quoted before (People v Mox, 20 NY3d 936, 940-941 [2012, Smith, J., dissenting]), and now quote again, the wise words of Judge Breitel in Nixon (21 NY2d at 354):

“[I]f independent and good advice in the interest of the defendant is the goal, it is more important that he consult with competent counsel than that a harried, calendar-conscious Judge be the one to perform the function in displacement of the lawyer.”

There is nothing in the record of these two cases to suggest that defendant’s counsel were not competent, or that defendant had no opportunity to consult with them before accepting a sentence of time served in one case, and 10 days in the other. The judgments entered on defendant’s pleas should be affirmed.

Chief Judge Lippman and Judges Read and Rivera concur with Judge Graffeo; Judge Smith dissents and votes to affirm in an opinion in which Judge Pigott concurs; Judge AbdusSalaam taking no part.

In each case: Order reversed, defendant’s guilty plea vacated and complaint dismissed.

        People v Catu (4 NY3d 242 [2005]).


author: Smith, J.

text:
    [3 NE3d 1160, 980 NYS2d 912]
    The People of the State of New York, Respondent, v Anthony Oddone, Appellant.
    Argued November 14, 2013;
    decided December 12, 2013

      POINTS OF COUNSEL

      Wachtell, Lipton, Rosen & Katz, New York City (Marc Wolinsky, Bernard W. Nussbaum, George T. Conway, III, Charles D. Cording, Scott M. Danner, Dana J. Brusca and David Zhou of counsel), and Sarita Kedia Law Offices, EC. (Sarita Kedia of counsel), for appellant.
    I. The trial court committed three legal errors that grossly distorted the evidence on a central issue in the case and denied Anthony Oddone a fair trial. (People v Borges, 69 NY2d 1031; People v Crimmins, 36 NY2d 230; People v Tarantola, 178 AD2d 768; People v Wesley, 83 NY2d 417; Parker v Mobil Oil Corp., 7 NY3d 434; People v Cronin, 60 NY2d 430; Marso v Novak, 42 AD3d 377; Muhammad v Fitzpatrick, 91 AD3d 1353; Rosati v Brigham Park Co-operative Apts., 36 Misc 3d 1214[A], 2012 NY Slip Op 51315[U].) II. The verdict must be set aside because Anthony Oddone was denied his right to an impartial jury. (People v Branch, 46 NY2d 645; Dyer v Calderon, 151 F3d 970; People v Estella, 68 AD3d 1155; People v Maragh, 94 NY2d 569; People v Brown, 48 NY2d 388; People v De Lucia, 20 NY2d 275; Clyde Mattox v United States, 146 US 140; People v Buford, 69 NY2d 290; People v Borges, 69 NY2d 1031; People v Harris, 19 NY3d 679.) III. The prosecutor’s flagrant and deliberate misconduct in summation violated Anthony Oddone’s Fifth Amendment right to remain silent and denied him a fair trial. (Berger v United States, 295 US 78; People v Mirenda, 23 NY2d 439; People v Hetenyi, 304 NY 80; Griffin v California, 380 US 609; People v Ashwal, 39 NY2d 105; People v Fielding, 158 NY 542; Matter of Frank v Department of State of State of N.Y., 14 AD2d 139; Walters v United States, 256 F2d 840; People v Carvalho, 256 AD2d 1223; People v King, 73 AD2d 895.) IV The trial court erred when it refused to give the jury an intoxication charge. (People v Perry, 61 NY2d 849; People v Sirico, 17 NY3d 744; People v Rodriguez, 76 NY2d 918; People v Smith, 43 AD3d 475; People v Farnsworth, 65 NY2d 734; People v De Tore, 34 NY2d 199.)

      Thomas J. Spota, District Attorney, Riverhead (Anne E. Oh of counsel), for respondent.
    I. The trial court’s evidentiary rulings were correct, not an abuse of discretion and should therefore be affirmed. (People v Borges, 69 NY2d 1031; People v Carroll, 95 NY2d 375; People v Aska, 91 NY2d 979; Carmell v Texas, 529 US 513; People v Reed, 40 NY2d 204; People v Montanez, 41 NY2d 53; People v Hawkins, 11 NY3d 484; People v Gray, 86 NY2d 10.) II. Defendant was not deprived of his right to a fair and impartial jury. (People v Borges, 69 NY2d 1031; People v Harris, 19 NY3d 679; People v Rickert, 58 NY2d 122; People v Brown, 48 NY2d 388; People v Harrell, 284 AD2d 248; People v Rodriguez, 71 NY2d 214; People v Genovese, 10 NY2d 478; People v Maragh, 94 NY2d 569; People v Testa, 61 NY2d 1008; People v Friedgood, 58 NY2d 467.) III. The prosecutor’s summation was proper in all respects and did not violate defendant’s Fifth Amendment rights or deprive him of his right to a fair trial. (People v Cona, 49 NY2d 26; People v Romero, 7 NY3d 911; People v Williams, 46 NY2d 1070; People v LaValle, 3 NY3d 88; People v Harris, 98 NY2d 452; People v Anonymous, 96 NY2d 839; People v Ashwal, 39 NY2d 105; People v Halm, 81 NY2d 819; People v Mirenda, 23 NY2d 439; People v Riback, 13 NY3d 416.) IV The trial court properly denied defendant’s request for a jury instruction on intoxication. (People v Perry, 61 NY2d 849; People v Farnsworth, 65 NY2d 734; People v Sirico, 17 NY3d 744; People v Gaines, 83 NY2d 925; People v Smith, 43 AD3d 475.)

      Karen Newirth, New York City, and M. Chris Fabricant, and Dechert LLP (James M. McGuire, Steven A. Engel and Matthew L. Mazur of counsel), for Innocence Project, Inc., amicus curiae.
    I. The trial court should have stricken Dr. Wilson’s testimony in the absence of a showing that his opinions were based upon principles that are generally accepted in the relevant scientific community. (People v Wesley, 83 NY2d 417; Parker v Mobil Oil Corp., 7 NY3d 434.) II. Dr. Penrod’s proposed testimony was based upon generally accepted principles and would have aided the jury in its evaluation of the eyewitness testimony. (People v Lee, 96 NY2d 157; People v Cronin, 60 NY2d 430; People v Le-Grand, 8 NY3d 449; People v Abney, 13 NY3d 251; People v Santiago, 17 NY3d 661; People v Bedessie, 19 NY3d 147; People v Williams, 20 NY3d 579; People v Spicola, 16 NY3d 441; United States v Graves, 465 F Supp 2d 450; United States v Hines, 55 F Supp 2d 62.)

      Sharon McCarthy, New York City, and Dorothy Heyl, for New York City Bar Association, amicus curiae.
    I. Testimony on the effect on memory of post-event information satisfies the requirements of Frye v United States (293 F 1013 [DC Cir 1923]) and testimony on the tendency to overestimate duration should not have been excluded without a Frye hearing. (Parker v Mobil Oil Corp., 7 NY3d 434; People v Magri, 3 NY2d 562; People v Wesley, 83 NY2d 417; People v Mooney, 76 NY2d 827; People v Drake, 188 Misc 2d 210, 19 AD3d 209, 7 NY3d 28; People v Beckford, 141 Misc 2d 71; People v Lewis, 137 Misc 2d 84; People v Brooks, 128 Misc 2d 608; People v LeGrand, 8 NY3d 449; People v Santiago, 17 NY3d 661.) II. Studies on the tendency to overestimate the duration of a short, stressful event and the malleability of memory are “beyond the ken” of the average juror. (People v Diaz, 20 NY3d 569; De Long v County of Erie, 60 NY2d 296; Selkowitz v County of Nassau, 45 NY2d 97; People v Cronin, 60 NY2d 430; People v Lee, 96 NY2d 157; People v Jones, 73 NY2d 427; People v Young, 7 NY3d 40; People v Abney, 13 NY3d 251; People v Beckford, 141 Misc 2d 71.) III. The exercise of sound discretion in determining whether to allow expert testimony requires a careful analysis of the relevant factors, rather than application of a per se standard. (People v Williams, 56 NY2d 236; People v Lee, 96 NY2d 157; People v Aphaylath, 68 NY2d 945; People v LeGrand, 8 NY3d 449.)
   OPINION OF THE COURT

Smith, J.

Defendant was convicted of manslaughter in the first degree for causing the death of a man by holding him in a headlock. The duration of the headlock was an important issue at trial. Defendant argues that several of the trial court’s rulings in admitting and excluding evidence related to that issue were mistaken. As to one of those rulings—the court’s refusal to permit defendant to refresh his witness’s recollection with a statement the witness had previously given—we agree with defendant, and order a new trial.

I

The victim, Andrew Reister, was a bouncer in a bar. On the night in question, defendant and a young woman were in the bar, dancing on a table. Reister asked defendant to get off the table, defendant refused, and Reister pushed him off. There followed a fight. In short order, defendant got behind Reister and put his arms around his neck; one of defendant’s hands was grasping the other. After an interval, Reister fell to the floor and defendant fell on top of him, not releasing his grip, though Reister seemed to onlookers to be unconscious. Several people screamed at defendant to let Reister go, and some tried without success to pull defendant away. Finally, defendant let go and ran out of the bar, leaving Reister unconscious on the floor. Reister was declared brain dead two days later.

Defendant was indicted for murder and relied on a defense of justification (self-defense). At his trial, the People asked seven of their witnesses to estimate the duration of the headlock. The estimates varied, but most put the total time, beginning when defendant’s arms first went around Reister’s neck and ending when he released him, at somewhere near three minutes. Two defense witnesses gave shorter estimates; by their telling, the headlock may have lasted less than a minute.

The jury acquitted defendant of murder, but convicted him of manslaughter in the first degree (causing death with the intent to cause serious physical injury [Penal Law § 125.20 (1)]) as a lesser included offense. The Appellate Division affirmed (People v Oddone, 89 AD3d 868 [2d Dept 2011]). A Judge of this Court granted leave to appeal (20 NY3d 1102 [2013]), and we now reverse and order a new trial.

II

Of the issues raised by defendant on this appeal, we find three—all related to what witnesses were or were not allowed to say about the duration of the headlock—that call for discussion. Defendant challenges the following evidentiary rulings:

(1) James Wilson, the doctor who performed an autopsy on Reister’s body, was permitted to testify that in his opinion Reister’s neck had been compressed for “something in the range of 2, 3, 4 minutes.”

(2) When Megan Flynn, a defense witness, testified that the duration of the part of the incident she observed “could have been a minute or so,” defense counsel was not allowed to refresh her recollection with a prior statement that put the same interval at “maybe 6 to 10 seconds.”

(3) Steven Penrod, an expert in eyewitness observation, was not permitted to testify that eyewitnesses routinely overestimate, by a large margin, the duration of relatively brief events.

We reject defendant’s attack on Wilson’s testimony. We agree with defendant that the restriction placed on his questioning of Flynn was error requiring a new trial. Whether the exclusion of Penrod’s testimony was an abuse of discretion is a close question that we do not need to decide, but we offer some observations about it for the guidance of the court at a retrial.

A. Wilson

Wilson, a deputy medical examiner, inferred a 2-4 minute duration for the headlock principally from two facts: his own observation at the autopsy of “petechiae”—red spots caused by bursting of blood vessels—on and around Reister’s eyes; and the observations of several witnesses that, by the time the incident ended, Reister’s face had turned purple. As to the petechiae, Wilson testified:

“Q. Could you tell us, Doctor in your experience how long it would take for this type of petechia to be present in Mr. Reister’s—around his eyes, in the skin surrounding his eyes?
“A. Well, in my experience and understanding of how this process occurs an injury of this sort would take matter of a few minutes, 2, 3 perhaps 4, with neck compression on type some kind of a struggle. So there may be slight variations in the pressure from time to time, but matter of a few minutes, something in the range of 2, 3, 4 minutes.”

Similarly, as to the discoloration of Reister’s face, Wilson testified:

“Q. In your opinion, Doctor, how long would it take for the blood in the veins that is not able—that is being squeezed and kept in the head, how long would it take in order for that purple cast or coloration to occur in Mr. Reister’s face?
“A. Well, in my opinion and experience the blood that is built up over a period of time, then loss of oxygen, to get very dark it would be a matter of a few minutes minimum, something in the order of 2, 3, 4 minutes.”

Defendant attacks this testimony as lacking a scientific basis. He does not dispute that petechiae and purple coloring can result from neck compression, but he says—and the People do not dispute—that no scientific studies have been published to show how lengthy a compression is required to produce those results. Thus, defendant argues, Wilson was advancing a scientific principle that had not gained general acceptance in its field, in violation of the rule of Frye v United States (293 F 1013 [DC Cir 1923]), which is followed by the courts of New York (People v Wesley, 83 NY2d 417 [1994]).

The flaw in defendant’s reasoning is that Wilson did not claim to rely on any established scientific principle. He made clear that his testimony was based on his personal “experience”—meaning what he had observed, heard and read about particular cases. Such evidence is not barred by Frye (see Johnson v State, 933 So 2d 568, 570 [Fla App 2006] [“An expert opinion based on personal training and experience is not subject to a Frye analysis”]; Commonwealth v Devlin, 365 Mass 149, 155, 310 NE2d 353, 357 [1974] [“Dr. Sosman’s medical opinion . . . was not the product of a ‘scientific theory’ but was, rather, the product of years of experience”]).

Defendant argues in substance that an expert who is a scientist can express no opinion based on his own experience, but must rely only on published studies or texts. We reject the argument. It is true that an opinion based on experience alone is ordinarily less reliable than one based on generally accepted science. An expert may well overvalue his own experience, or even exaggerate or fabricate it. But these flaws can be exposed by cross-examination, and by the opinions of opposing experts—as the alleged flaws in Wilson’s testimony were in this case. There will ordinarily be no unfairness as long as the jury is not misled into thinking that the expert’s opinion reflects a generally accepted principle (see Flanagan v State, 625 So 2d 827, 828 [Fla 1993] [an expert’s reliance on “some scientific principle or test . . . implies an infallibility not found in pure opinion testimony”]).

We acknowledge that it may not be possible to draw a neat line between scientific principles and experience-based testimony. Indeed, it has been observed that the many cases applying Frye to evidence based on scientific principles shed little light on exactly what a “scientific principle” is (see 22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5168.2 [2d ed Apr. 2013]). We do not imply that an expert is allowed to say anything he or she likes to a jury if the statement is prefaced by the words “in my experience.” To allow an expert to say, based only on his or her alleged experience, that smoking does not cause lung cancer or that baldness is related to the phases of the moon would be to tolerate the admission of junk science and to undermine the basic purpose of Frye.

But Wilson’s testimony in this case does not trigger a concern of that kind. The parties here appear to agree that petechiae and discoloration are caused by neck compression; how long the neck must be compressed is a question that scientific studies do not seem to have answered. To allow a pathologist who has examined many dead bodies, and heard and read many accounts of how victims met their deaths, to express an opinion on the subject accords with common sense, and does not open the door to every expert’s flight of fancy.

B. Flynn

Flynn, a waitress at the bar where the fatal event took place, saw part of the incident and later told an insurance company investigator that the part she saw lasted “for maybe 6 to 10 seconds.” The People interviewed her before trial but decided not to call her as a witness. The defense did call her, and asked essentially the same question the insurance investigator had asked: “[F]rom the time that you walked in to the time you saw the guy let go how long of a period of time was it?” On the witness stand, Flynn gave a different answer: “I didn’t have a watch. I wasn’t keeping track of time. But it could have been a minute or so. I don’t know.” Defense counsel tried to show Flynn her previous statement to refresh her recollection, but was not permitted to do so. The trial court ruled that Flynn had “given no indication she needs her memory refreshed.”

In this, the trial court erred. When a witness, describing an incident more than a year in the past, says that it “could have” lasted “a minute or so,” and adds “I don’t know,” the inference that her recollection could benefit from being refreshed is a compelling one. More fundamentally, it was simply unfair to let the jury hear the “a minute or so” testimony— testimony damaging to the defense, from a defense witness’s own lips—while allowing the defense to make no use at all of an earlier, much more favorable, answer to the same question. The trial court suggested to defense counsel that this was “an effort to impeach your own witness,” but counsel had not yet got to the point of impeachment; she only wanted to refresh the witness’s recollection. And in any event, technical limitations on the impeachment of witnesses must sometimes give way, in a criminal case, to a defendant’s right to a fair trial (Chambers v Mississippi, 410 US 284 [1973]).

Though Flynn was certainly not the central witness in the case, we conclude that the error in limiting counsel’s examination of her was important enough to justify reversal. Indeed, the People do not argue that the error was harmless. It may be that her original “6 to 10 seconds” statement, if repeated on the stand, would have been of little consequence, for Flynn saw only the last part of what occurred. But the testimony of a defense witness that that fragment of the event might have lasted as long as a minute gave significant support to the People. The prosecutor used—indeed, overstated—Flynn’s testimony in her closing argument: “Megan Flynn even told you, the defense’s own witness, told you it was one to two minutes.”

C. Penrod

Defendant sought to call Penrod, a psychology professor, “as an expert on the issue of eyewitness observations,” explaining in a detailed offer of proof, accompanied by an affidavit from Penrod, what he would testify to. Much of his proposed testimony was on matters within the ken of the average juror, and the trial court was plainly right to exclude it. But one point that Penrod proposed to make, relating to the accuracy of estimates of duration, cannot be put aside so readily. Penrod said in his affidavit: “It is generally accepted in the field of forensic psychology that eyewitnesses routinely overestimate the duration of relatively short events lasting a few minutes or less.”

Penrod offered specific support for this assertion, quoting another psychologist who had studied the topic:

“Theoretical and empirical investigation of duration estimations date back to the nineteenth century with Vierordt’s (1868) discovery that short intervals tend to be overestimated and longer ones underestimated. This finding is now commonly referred to as ‘Vierordt’s Law’. Consistent with this law, forensically related research has shown that witnesses tend to overestimate the duration of relatively short events lasting a few minutes or less .... Yarmey and Yarmey (1997) found that witnesses in field situations (involving) ... a 15-second interaction with a ‘culprit’ . . . overestimated this encounter by a 3 to 1 ratio.”

Citing People v LeGrand (8 NY3d 449 [2007]), defendant argues that the exclusion of expert testimony about “Vierordt’s Law” was error. LeGrand, as the trial court observed, is not directly in point. The issue in LeGrand was the reliability of an eyewitness’s identification of defendant as the person who committed the crime, and we held it an abuse of discretion to exclude expert testimony about the reliability of such identifications where the case “turned solely on the accuracy of the witnesses’ identification,” for which there was “no corroborating evidence” (8 NY3d at 457). Here, defendant’s identity was never in issue.

LeGrand, however, can be read to stand for the broader principle that there are cases in which it is unfair to deprive the jury of expert testimony about the reliability of eyewitness observations. Whether this is such a case is a debatable question. We must assume on this record that “Vierordt’s Law” is a generally accepted scientific principle; defendant sought, and was denied, a Frye hearing on that issue. The proposition that estimates of the duration of brief incidents tend to err significantly on the high side is not one within the ken of the average juror. And the accuracy of witnesses’ estimates of duration was undoubtedly relevant to this case.

On the other hand, applications to admit evidence of this kind—in essence, testimony by an expert witness advising the jury on how to evaluate the testimony of fact witnesses—must be approached with caution. Such testimony is collateral to the main issues in the case, and we have warned that the exploration of collateral issues tends “to obscure the main issue in the minds of the jury, to lead them away from the principal matters which require their attention and to protract trials to an unreasonable extent without any corresponding advantage to any one concerned” (People v Harris, 209 NY 70, 82 [1913]). This explains the limitations we placed on our holding in LeGrand, requiring the admission of testimony about eyewitness identifications only where uncorroborated identification evidence is of critical importance. Courts do not normally exclude relevant evidence merely because the case against the defendant is strong. But the overall strength of the case is important to issues arising under LeGrand, because where the eyewitness testimony is not crucial, expert testimony about the collateral issue of eyewitness reliability can be a harmful distraction.

Here, it can be argued that it was not crucial for the jury to decide how many seconds or minutes defendant held Reister in a headlock. The evidence that Reister fell unconscious, that defendant still maintained a grip on his neck, and that onlookers screamed for defendant to stop and tried to pull him away without result, would support a finding that, however long it was, it was far too long. The decisive issue in the case is not the duration of the headlock, but whether defendant caused Reister’s death while intending to cause him serious physical injury. The theory that defendant’s purpose was only to defend himself might be rejected by a factfinder even in the absence of any evidence of duration.

Yet the People chose to put in much evidence of duration, from fact and expert witnesses, and relied on it heavily. This might well have justified the trial court in allowing Penrod to give the testimony defendant proffered. Whether it was an abuse of discretion to exclude that testimony is now—since we reverse the conviction on other grounds—an academic question. A similar question may arise on retrial, but because no two trials are ever identical the considerations governing the court’s exercise of its discretion will not necessarily be the same. We decide only that the question should be addressed in light of the factors discussed in this opinion.

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

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

Order reversed and a new trial ordered.