author: Jones, J.

text:
    [953 NE2d 753, 929 NYS2d 515]
    In the Matter of Arthur J. Walsh et al., Respondents, v Anita S. Katz et al., Respondents, and Daniel C. Ross, Appellant. (And a Third-Party Action.)
    Argued April 26, 2011;
    decided June 2, 2011

      POINTS OF COUNSEL

      Daniel C. Ross, Mattituck, appellant pro se.
    I. Equal protection guarantees are violated when voters are required to choose one of the six town board members from 1.5% of the population. (Wesberry v Sanders, 376 US 1; Bullock v Carter, 405 US 134; Williams v Rhodes, 393 US 23; Sununu v Stark, 383 F Supp 1287, 420 US 958; Dunn v Blumstein, 405 US 330; Matter of Campbell v Tunny, 196 Misc 2d 860; Reynolds v Sims, 377 US 533; Phelan v City of Buffalo, 54 AD2d 262; Landes v Town of N. Hempstead, 20 NY2d 417; Board of Estimate of City of New York v Morris, 489 US 688.) II. The constitutionality of the residency requirement should be measured by strict scrutiny. (Galbraith v New York Conservative Party, 155 AD2d 183; Chimenlo v Stark, 353 F Supp 1211, 414 US 802; Sununu v Stark, 383 F Supp 1287, 420 US 958; Matter of Campbell v Tunny, 196 Misc 2d 860; Stapleton v Clerk for City of Inkster, 311 F Supp 1187; Hadnott v Amos, 320 F Supp 107, 401 US 968; Bolanowski v Raich, 330 F Supp 724; Green v McKeon, 335 F Supp 630; Mogk v City of Detroit, 335 F Supp 698; McKinney v Kaminsky, 340 F Supp 289.) III. The apportionment cases are most similar to this case and should be controlling. (Hadley v Junior College Dist. of Metropolitan Kansas City, 397 US 50; Dusch v Davis, 387 US 112; Dallas County v Reese, 421 US 477; Wesberry v Sanders, 376 US 1; Reynolds v Sims, 377 US 533; Luther v Borden, 7 How [48 US] 1; Board of Estimate of City of New York v Morris, 489 US 688.)

      Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, Riverhead (Frank A. Isler of counsel), for Town of Southold, respondent.
    I. This appeal has been rendered moot since appellant was not elected. (Matter of Hearst Corp. v Clyne, 50 NY2d 707; Wisholek v Douglas, 97 NY2d 740; Matter of Citineighbors Coalition of Historic Carnegie Hill v New York City Landmarks Presero. Commn., 2 NY3d 727.) II. The Appellate Division, Second Department, correctly applied the rationally related test to sustain the statute. (Matter of Rosenstock v Scaringe, 40 NY2d 563; Galbraith v New York Conservative Party, 155 AD2d 183; Dusch v Davis, 387 US 112; Board of Estimate of City of New York v Morris, 489 US 688; Dallas County v Reese, 421 US 477; Fortson v Dorsey, 379 US 433.)

      Twomey, Latham, Shea, Kelley, Dubin & Quartararo, LLP, Riverhead (Patrick B. Fife and Lauren E. Stiles of counsel), for Arthur J. Walsh and another, respondents.
    The residence requirement is constitutional and does not violate the equal protection rights of Daniel Ross or the voters of the Town of Southold. (LaValle v Hayden, 98 NY2d 155; Wasmuth v Allen, 14 NY2d 391, 379 US 11; I. L. F. Y. Co. v City Rent &

      Rehabilitation Admin., 11 NY2d 480; People v Tichenor, 89 NY2d 769; People v Pagnotta, 25 NY2d 333; Alliance of Am. Insurers v Chu, 77 NY2d 573; Mugler v Kansas, 123 US 623; Thompson v Wallin, 301 NY 476; Nordlinger v Hahn, 505 US 1; Galbraith v New York Conservative Party, 155 AD2d 183.)
   OPINION OF THE COURT

Jones, J.

At issue, in this proceeding pursuant to Election Law § 16-102, is the constitutionality of the residency requirement for the elected position of town justice/town board member, Fishers Island, Town of Southold, Suffolk County (L 1860, ch 113, § 2, as amended by L 1898, ch 373, § 1, as further amended by L 1977, ch 276, § 1). We hold that the residency requirement does not violate the Equal Protection Clause. In so holding, we conclude that the requirement is subject to a rational basis test, and that a rational basis exists to justify the requirement.

I.

Fishers Island is situated in the Town of Southold and located approximately 11 miles off the North Fork of the eastern coast of Long Island. While the island is only about two miles from the Connecticut coast, and has no direct ferry service to the mainland portion of the town, it has historically been part of Southold in Suffolk County.

The island is Election District 1 in the Town of Southold. According to data compiled from the 2000 United States Census, a total of 20,599 individuals resided in Southold. Of this number, 289 individuals were residents of Fishers Island, which represents approximately 1.5% of Southold’s population.

In 1860, the State Legislature enacted a law providing for a fifth justice of the peace for the Town of Southold (see L 1860, ch 113, § 2). Pursuant to the law, the fifth justice of the peace was required to reside either upon Fishers Island or upon one of the islands adjacent thereto (id.). At the time the law was enacted, justices of the peace were also members of the Southold Town Board. The law was amended in 1898 to require the fifth justice of the peace to reside on Fishers Island itself (see L 1898, ch 373, § 1).

In 1976, pursuant to Laws of 1976, chapter 739, § 2 (adding Town Law § 60-a), the Legislature eliminated the dual role and town justices no longer served on town boards. This legislation had no effect on the requirement that the fifth justice reside on Fishers Island.

In 1977, the Legislature reinstituted the dual town justice/ town board member position for Fishers Island and continued the long-standing residency requirement (see L 1977, ch 276, § 1), as follows:

“There shall be elected at the meeting of the Town of Southold, in the county of Suffolk, to be held in the spring of [1899], and every four years thereafter, one town justice who shall reside upon Fisher’s island in said town. The justice so elected shall enter upon the duties of his office at the expiration of the term of office of his predecessor, and shall hold his office for four years. Notwithstanding the provisions of any other law, such town justice residing upon Fisher’s island shall, in addition to his duties as town justice, serve as a member of the Southold town board” (emphasis added).

The Bill Jacket accompanying chapter 276 of the Laws of 1977 sets forth the Legislature’s rationale in support of this enactment. It states, in pertinent part:

“The effect of the 1976 enactment is to remove the Fishers Island town justice from the Town Board and thus leave the people of Fishers Island without any representation.
“Moreover, there is no direct transportation between Fishers Island and the mainland of the Town of Southold and therefore, it is virtually impossible for the Fishers Island residents to attend Town Board meetings. It has been the custom for the resident town justice of Fishers Island to keep the residents of the Island apprised of Town matters as well as to present their views on various issues which may concern them. In effect, the Fishers Island town justice, as a member of the Town Board, has acted as the link between Town government and the people of Fishers Island. It has been argued that the effect of the 1976 amendment to the Town Law is to deprive the residents of Fishers Island from meaningful participation in Town government” (Sponsor’s Mem, Bill Jacket, L 1977, ch 276; see also id., I. Evanick letter, June 2, 1977 [stating, “By operation of law the residents of Fishers Island, who are in a unique geographical position, will suffer the loss of meaningful representation. This legislation was intended to rectify this situation”]; id., Dept of State Mem from M. Cuomo, June 6,1977 [Mem noted that application of the 1976 legislation to Southold would be “unfeasible” given the “unusual circumstances” regarding Fishers Island’s access to Southold and the island’s “limited population base,” and stated that “(Representation on the town board is the primary consideration”]).

Since 1977, there have been no further amendments to the Fishers Island residency requirement for the elected position of town justice/town board member, which position is elected in a town-wide election.

II.

In July 2009, respondent Daniel C. Ross, a resident of Southold but not a resident of Fishers Island, filed with the Suffolk County Board of Elections (BOE) a petition designating himself a candidate in the September 2009 primary election for the nomination of the Democratic Party as its candidate for the Fishers Island town justice/town board member seat. Petitioners Arthur J. Walsh and Nina J. Schmid — residents of Fishers Island — filed objections to the designating petition, alleging that it was invalid because Ross did not meet the residency requirement. Respondents Anita S. Katz and Cathy L. Richter Geier, as Commissioners of the BOE, denied the objections and upheld the designating petition.

Petitioners commenced this Election Law proceeding seeking to prohibit the BOE from placing Ross’s name on the ballot for the September 2009 primary election or the November 2009 general election based on Ross’s failure to meet the residency requirement. Ross counterclaimed and, in effect, cross-petitioned to validate the designating petition, challenging, among other things, the constitutionality of the residency requirement. Ross also sought to join the Town of Southold and the State of New York as parties.

Supreme Court denied the petition and dismissed the proceeding, without prejudice, on the ground that Ross was not required to meet the residency requirement until 30 days after the commencement of the term of office — in this case, by January 30, 2010. The Appellate Division modified the Supreme Court order and upheld the constitutionality of the statute on equal protection grounds (66 AD3d 1052 [2d Dept 2009]). The court held that a rational basis standard was applicable, and that a rational basis exists to support the Legislature’s determination that the fifth town justice/town board member for Southold should be a resident of Fishers Island. With respect to Supreme Court’s ruling that the prevailing candidate need not abide by the residency requirement until 30 days after beginning his or her term of office, the court modified Supreme Court’s order by holding that January 1, 2010 was the appropriate date by which a candidate had to meet the residency requirement.

Ross appeals as of right, pursuant to CPLR 5601 (b) (1) constitutional question grounds, as limited by his notice of appeal, from that portion of the Appellate Division order that: (1) upheld the constitutionality of the Fishers Island residency requirement; and (2) remitted the matter to Supreme Court for entry of a judgment declaring that Ross did not establish that the challenged law is unconstitutional. Ross challenges the residency requirement only as it applies to the position on the Town Board of the Town of Southold.

Although Ross lost the November 2009 general election, this appeal presents a live controversy. Supreme Court converted and continued Ross’s constitutional claims as a declaratory judgment action, and the Appellate Division decided the constitutional issues. Though no longer a candidate, Ross is a voter who claims that his right to vote is being unconstitutionally burdened.

III.

Ross argues that the Appellate Division improperly used a rational basis standard, as opposed to a strict scrutiny standard, in determining that the residency requirement was constitutional. He contends that the residency requirement is subject to strict scrutiny because it affects fundamental interests — the right to run for public office and the right to vote.

Ross further argues that the residency requirement violates equal protection guarantees by reserving one Town Board seat to a group of people that make up less than 1.5% of the Town of Southold’s population. He contends that every voter’s interest in being able to vote for this office is limited by the residency requirement. Relying on Reynolds v Sims (377 US 533 [1964]), Ross argues that the residency requirement violates the constitutional right of a qualified voter not to have his/her vote diluted. According to Ross, even when the seat is contested, the person who ultimately occupies the office must be a Fishers Island resident, thereby creating a district within an otherwise at-large town election system that violates the equal protection provisions of the Federal and State Constitutions.

Next, Ross argues there is no governmental interest promoted by the residency requirement. He maintains that the reasons for the challenged legislation, which are set forth in the Bill Jacket, are not compelling, and no rational bases support the law. We disagree with Ross’s arguments.

Section 1 of the 14th Amendment to the Federal Constitution provides in part that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The Federal Equal Protection Clause extends to the states and their subdivisions (see e.g. Hunter v Erickson, 393 US 385 [1969]), and this Court has held that the State Constitution’s equal protection guarantee (NY Const, art I, § 11 [“No person shall be denied the equal protection of the laws of this state or any subdivision thereof’]) is as broad in its coverage as that of the Fourteenth Amendment (see Golden v Clark, 76 NY2d 618, 624 [1990] [citations omitted]).

“[V]oting is of the most fundamental significance under our constitutional structure” (Illinois Bd. of Elections v Socialist Workers Party, 440 US 173, 184 [1979]); however, the right to vote in any manner and the right to associate for political purposes through the ballot are not absolute (see Munro v Socialist Workers Party, 479 US 189, 193 [1986]). States play an active role in structuring and regulating their own elections (see Tashjian v Republican Party of Conn., 479 US 208, 217 [1986]; Storer v Brown, 415 US 724, 730 [1974] [“(A)s a practical matter, there must be . . . substantial (governmental) regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes”]). Moreover, because election laws invariably impose some burden upon individual voters (see Anderson v Celebrezze, 460 US 780, 788 [1983] [“whether (the voting regulation) governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, (the regulation) inevitably affects — at least to some degree — the individual’s right to vote and his right to associate with others for political ends”]), subjecting all voting regulations to strict scrutiny, and requiring that the regulations be narrowly tailored to advance a compelling state interest, could interfere with the state’s ability to ensure the fair and efficient operation of elections.

Thus, a court considering an equal protection challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs rights” (Anderson, 460 US at 789; Tashjian, 479 US at 213-214). In sum, a court’s inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation directly infringes upon First and Fourteenth Amendment rights.

The direct impact of the Fishers Island residency requirement is not on one’s right to vote, but on an individual’s right to be a candidate for public office. Although “laws that affect candidates always have at least some theoretical, correlative effect on voters . . . , not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review” (Bullock v Carter, 405 US 134, 143 [1972]). That is, the mere fact that a state election law “creates barriers . . . tending to limit the field of candidates from which voters might choose . . . does not of itself compel close scrutiny” (id.; see Galbraith v New York Conservative Party, 155 AD2d 183, 185-186 [3d Dept 1990] [the right to run for elective office is not fundamental]).

Ross cannot point to a residency requirement case that supports his position. Instead, he argues that this case should be considered under the analysis applied in apportionment cases which involve the “one person, one vote” principle. However, Ross’s reliance on these cases in support for stringent review of the residency requirement is misplaced. In the apportionment cases cited by Ross, there were disproportionate numbers of voters in two districts, where each district directly elected its own representative. This resulted in unequal voting power between the two groups of voters, and the Supreme Court found that the citizens’ votes had been diluted (see Reynolds v Sims, supra; Hadley v Junior College Dist. of Metropolitan Kansas City, 397 US 50 [1970]; Board of Estimate of City of New York v Morris, 489 US 688 [1989]).

Here, the challenged residency requirement imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of the voters of the Town of Southold. Since all Town Board members are elected in a town-wide election, the voters are not unduly restricted in their choice of candidates for Town Board positions. As a result, all Southold voters may vote in the elections for all six Town Board positions, including the position reserved for the Fishers Island town justice. Stated differently, each citizen of the town has an equal vote as they are all entitled to vote for the town justice/ town board seat.

Further, the residency requirement does not require a candidate to be a resident of Fishers Island prior to commencement of his/her term of office. In other words, the winner of the town justice/town board position does not need to establish residency on Fishers Island until the beginning of his/her term, and must only retain that residency for the duration of the term. Thus, any Southold resident who would otherwise be eligible to run for political office can run for the Fishers Island seat.

Notably, the United States Supreme Court has addressed similar residency requirements in Dusch v Davis (387 US 112 [1967]) and Dallas County v Reese (421 US 477 [1975]). In Dusch and Dallas County, the Supreme Court rejected equal protection challenges, upholding electoral plans in which candidates were required to be residents of specific geographic areas within a larger political unit so long as all of the voters in the larger political unit were allowed to vote for each candidate. The Supreme Court recognized that a state has a legitimate interest in assuring an elected representative is familiar with the unique problems of a specific geographic area, and rejected the idea that numerical variances between political units, standing alone, are sufficient to make out an equal protection challenge in such cases.

Dusch involved an election plan for city council under which four members were elected at large, without regard to residence, and seven members, subject to a residency requirement, were elected by voters of the entire city. Each one of the seven members was required to live in one of the seven boroughs of the city. The Supreme Court held that the election plan did not constitute invidious discrimination violative of the Equal Protection Clause even though the populations of the seven boroughs varied from less than 1,000 (i.e., 733) to nearly 30,000 (i.e., 29,048), and where the plan made no distinction based on race, creed, economic status or location.

In Dallas County, the Alabama State Legislature established a system for the election of members of the county commission of Dallas County, Alabama. The system provided for countywide balloting for each of the four commission members but required that a member be elected from each of four residency districts. The Supreme Court held that the system was not unconstitutional even though the populations of the four districts varied widely. The Court determined that to establish the unconstitutionality of such an election plan, the challenge must be based on findings showing that the plan impermissibly dilutes the voting strength of an identifiable element of the voting population.

The Supreme Court also reiterated a basic teaching of representative government that it discussed previously in Dusch (387 US at 115) and Fortson v Dorsey (379 US 433, 438 [1965]), “that elected officials represent all of those who elect them, and not merely those who are their neighbors” (Dallas County, 421 US at 480). Applying this principle here, since the Fishers Island seat is subject to a town-wide vote, the individual elected to fill the seat represents the entire town, not just the residents of Fishers Island. Thus, Ross’s contention that the residency requirement gives the people of Fishers Island a permanent advantage of greater representation is unavailing.

Based on the foregoing, we agree with the Appellate Division that the rational basis approach is the proper standard of review in the present case. There is no direct and appreciable impact on Southold’s residents’ right to vote. Nor has an identifiable class within the town been disenfranchised. To be sure, the Fishers Island residency requirement affects the right to vote, but only in an incidental and remote way. This statutory provision does not rise to a level which would require that it be subject to strict scrutiny.

We further conclude, as did the Appellate Division, that the Fishers Island residency requirement satisfies the rational basis test. In particular, the legislative history of the residency requirement, discussed supra, articulates several rational bases for the residency requirement and retaining the dual town justice/town board member seat — e.g., the main purpose of the legislation is to ensure that the residents of Fishers Island are not deprived of meaningful representation in town government (see Sponsor’s Mem, Bill Jacket, L 1977, ch 276).

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed, without costs.

Chief Judge Lippman and Judges Ciparick, Grappeo, Read, Smith and Pigott concur.

Order, insofar as appealed from, affirmed, without costs.

      . The 1977 legislation also replaced the “justice of the peace” title with “town justice” (see Dept of State Mem from M. Cuomo, June 6, 1977, Bill Jacket, L 1977, ch 276).

        . Strict scrutiny has been held applicable to ballot access cases involving restrictions based on wealth or restrictions that impose special burdens on new or small political parties or independent candidates (see Golden v Clark, 76 NY2d at 624-626).


source: Caselaw Access Project

author: Smith, J. Jones, J.

license: Public Domain

text:
    [953 NE2d 760, 929 NYS2d 522]
    The People of the State of New York, Respondent, v Alicia Lewie, Appellant.
    Argued May 3, 2011;
    decided June 9, 2011

      POINTS OF COUNSEL

      Matthew C. Hug, Troy, for appellant.
    I. Appellant’s indelible right to counsel was violated by the prosecution when the prosecutor, with full knowledge that appellant had been assigned an attorney in a simultaneous Family Court Act article 10 proceeding emanating out of the same nexus as the criminal investigation, and despite this knowledge, advised law enforcement to continue its interrogation. (People v West, 81 NY2d 370; People v Harris, 77 NY2d 434; People v Settles, 46 NY2d 154; People v Bing, 76 NY2d 331; People v Grice, 100 NY2d 318; People v Di Biasi, 7 NY2d 544; People v Hobson, 39 NY2d 479; People v Skinner, 52 NY2d 24; People v Rogers, 48 NY2d 167; People v Bartolomeo, 53 NY2d 225.) II. The Appellate Division’s decision reversing and dismissing count six of the indictment charging appellant with manslaughter in the second degree pursuant to Penal Law § 125.15 (1) based upon its finding that the evidence was insufficient to establish that appellant was aware that her son was exposed to a grave risk of death and affirming appellant’s conviction on count seven of the indictment charging appellant with manslaughter in the second degree pursuant to Penal Law § 125.15 (1) renders the verdict repugnant and requires reversal. (People v Tucker, 55 NY2d 1; People v Dercole, 72 AD2d 318; People v Trappier, 87 NY2d 55; People v Raymond, 56 AD3d 1306; People v Reagan, 94 NY2d 804.) III. County Court’s inquiry of the “blue haired” juror was insufficient as a matter of law, rendering its decision to allow her to continue to deliberate reversible error. Moreover, simply based upon the juror’s conduct and her responses to the court’s terse inquiry, the court’s decision not to remove her constituted reversible error. (People v Branch, 46 NY2d 645; People v Buford, 69 NY2d 290; People v Anderson, 70 NY2d 729; People v Daniels, 218 AD2d 589; People v McClenton, 213 AD2d 1; People v Lapage, 57 AD3d 1233; People v Bradford, 300 AD2d 685; People v Leader, 285 AD2d 823.) IV. Appellant’s conviction for manslaughter in the second degree (count seven) was not supported by legally sufficient evidence. (People v Raymond, 56 AD3d 1306; People v Stanfield, 36 NY2d 467; People v Reagan, 94 NY2d 804; People v Phippen, 232 AD2d 790; People v Stewart, 40 NY2d 692; People v Brengard, 265 NY 100; People v Wong, 81 NY2d 600; People v Northrup, 83 AD2d 737.) V. Appellant’s conviction for reckless endangerment in the first degree was unsupported by legally sufficient evidence. (People v Lynch, 95 NY2d 243; People v Roe, 74 NY2d 20; People v Feingold, 7 NY3d 288; People v Register, 60 NY2d 270; People v Chrysler, 85 NY2d 413; People v Gomez, 65 NY2d 9; People v Graham, 14 AD3d 887; People v Williams, 191 AD2d 234; People v Sanford, 24 AD3d 572.) VI. County Court’s supplemental jury instruction on the definition of recklessness was incorrect and had the effect of changing the charges pending and theory of the prosecution. (People v Ladd, 89 NY2d 893; People v Drake, 7 NY3d 28.) VII. The trial court’s allowance of a mountain of hearsay and irrelevant, prejudicial and inflammatory evidence to be admitted at trial deprived appellant of her constitutional right to a fair trial. (People v Wong, 81 NY2d 600.)

      Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.
    I. Since the appointment of counsel in Family Court did not effect the attachment of counsel in the criminal investigation, there is no basis for defendant’s claim that her statements to Investigators Werner and Swartz were taken in violation of her indelible right to counsel. (People v Roselle, 84 NY2d 350; People v Smith, 62 NY2d 306; Gilberg v Barbieri, 53 NY2d 285; People v Robinson, 122 AD2d 173; People v Le Blanc, 199 AD2d 584; People v Snyder, 221 AD2d 870; People v Kent, 240 AD2d 772; People v Townes, 41 NY2d 97; People v Yut Wai Tom, 53 NY2d 44; People v Samuels, 49 NY2d 218.) II. The Appellate Division’s reversal of defendant’s conviction for manslaughter in the second degree under count six did not render the verdict of guilt under count seven repugnant since that count did not require the jury to find that defendant recklessly caused Colbi Bullock’s death by failing to seek medical attention for him between November 11, 2007 and November 14, 2007. (People v Tucker, 55 NY2d 1.) III. County Court was not required to remove a juror where the juror unequivocally affirmed her ability to be fair and impartial. (People v Buford, 69 NY2d 290; People v West, 92 AD2d 620; People v Anderson, 70 NY2d 729; People v Littebrant, 55 AD3d 1151; People v Smyers, 167 AD2d 773, 77 NY2d 967; People v Leader, 285 AD2d 823, 97 NY2d 756; People v Butts, 140 AD2d 739; People v Rodriguez, 71 NY2d 214; People v Rentz, 67 NY2d 829; People v Meyer, 78 AD2d 662.) IV. The evidence adduced at trial, viewed in the light most favorable to the People, permitted the jury to find defendant guilty of manslaughter in the second degree under count seven of the indictment and reckless endangerment in the first degree. (People v Bleakley, 69 NY2d 490; People v Foster, 64 NY2d 1144; People v Licitra, 47 NY2d 554; People v Steinberg, 79 NY2d 673; People v Wong, 81 NY2d 600; People v Northrup, 83 AD2d 737; People v Salley, 153 AD2d 704; People v Stubbs, 122 AD2d 91; People v Feingold, 7 NY3d 288; People v Suarez, 6 NY3d 202.) V. County Court’s supplemental jury instruction on recklessness sufficiently conveyed the correct principles and therefore does not mandate a reversal of defendant’s conviction. (People v Ladd, 89 NY2d 893; People v Russell, 266 NY 147; People v Drake, 7 NY3d 28; People v Simmons, 15 NY3d 728; People v Neptune, 51 AD3d 949; People v Crimmins, 36 NY2d 230.) VI. The testimony permitted at trial was entirely proper and the Appellate Division correctly found that defendant’s claims of error were either unpreserved, lacking in merit or harmless. (People v Clarke, 81 NY2d 777.)

      Derek Champagne, District Attorney, Albany (Morrie I. Kleinbart of counsel), for District Attorneys Association of the State of New York, amicus curiæ.
    The due process basis of the right to counsel in Family Court removal proceedings counsels against establishing an indelible right to counsel in a criminal proceeding arising from a common nucleus of facts. (People v Smith, 62 NY2d 306; People v Lopez, 16 NY3d 375; People v Donovan, 13 NY2d 148; People v Noble, 9 NY2d 571; Patterson v New York, 432 US 197; Medina v California, 505 US 437; Matter of Ella B., 30 NY2d 352; Mathews v Eldridge, 424 US 319; Matter of Tammie Z., 66 NY2d 1; Morrissey v Brewer, 408 US 471.)
   OPINION OF THE COURT

Smith, J.

A jury convicted defendant of second degree manslaughter and first degree reckless endangerment for her role in the events leading to the death of her son. In so doing, the jury found that defendant acted both recklessly and with depraved indifference to human life. We hold that the record supports the jury’s finding as to the first of these mental states, but not the second. We therefore uphold the conviction for manslaughter and vacate the conviction for reckless endangerment.

I

On November 13, 2007, defendant and the man she lived with, Michael Flint, brought her eight-month-old son, Colbi Bullock, to a hospital emergency room. The child was not breathing and had no pulse. Attempts to resuscitate him did not succeed, and he was pronounced dead the following day.

At the time of his death, Colbi had injuries consistent with very severe abuse. There were many bruises on his face — around his cheek, his chin, both eyes and one ear — and there were also bruises elsewhere on his head, and on his neck, chest and abdomen. There were patterns of bruises and abrasions on his arms consistent with three human bite marks, two on the right arm and one on the left. The injuries on his neck were consistent with choking. His ribs had been broken at least a month previously; this injury was consistent with squeezing, or grabbing and shaking. It also appeared that the ribs had been reinjured more recently. A bone in the forearm had been recently broken, close to a bite mark. A doctor who conducted an autopsy found that injury to be “consistent with someone biting and snapping the arm at the same time.” He also found evidence of a brain injury, in the form of hemorrhages less than four days old. In the doctor’s opinion, the brain injury was the cause of death.

It is not disputed that Colbi’s injuries were inflicted by Michael Flint. Flint pleaded guilty to two counts of depraved indifference murder, and related lesser charges. Defendant was prosecuted on two counts of second degree manslaughter based on two different theories: that, in the last two or three days of Col-bi’s life, she knew he had life-threatening injuries and failed to seek medical help; and that, in the last 45 days of his life, she left him in Flint’s care, knowing that to do so was to put the child’s life in danger. She was also charged with first degree reckless endangerment and with endangering the welfare of a child.

Defendant was convicted on all four counts. The Appellate Division reversed as to the first manslaughter count, finding that the evidence did not establish defendant’s knowledge that the injuries the child had received were life-threatening, and otherwise affirmed (People v Lewie, 67 AD3d 1056 [3d Dept 2009]). A Judge of this Court granted defendant leave to appeal (14 NY3d 889 [2010]). We now affirm as to the manslaughter and endangering the welfare of a child counts, but reverse as to reckless endangerment.

II

The People have not challenged the Appellate Division’s holding that the evidence was insufficient on the first of the two manslaughter counts, and defendant does not dispute the sufficiency of the evidence that she was guilty of endangering the welfare of a child. She does challenge the sufficiency of the evidence supporting her remaining manslaughter conviction and her conviction for reckless endangerment. As to both counts, the critical question is what the evidence shows as to defendant’s state of mind when, over a period of six weeks, she repeatedly left her baby with the man who abused and eventually killed him. We will summarize the evidence on that issue, resolving any conflicts, as the jury presumably did, in the People’s favor.

Defendant and Colbi began living with Flint when Colbi was about three months old. Defendant worked full time; she hired a babysitter, but Flint was often alone with Colbi. A few days before Colbi’s death, defendant dismissed the babysitter and agreed with Flint that Flint would care for the child while defendant worked.

Seven friends and acquaintances of defendant testified to contacts with defendant, Flint and Colbi during the time the three of them lived together. Five of them said that they saw bruises on Colbi, and six of them said that defendant expressed, in one way or another, knowledge, belief or fear that Flint was abusing the child. One said that defendant told her “how she felt uncomfortable leaving the baby home with Michael, that she was scared, she never knew what she was going to go home to.” The same witness said defendant “told me that Michael had shaken the baby . . . shaken and bit him.” Another witness recounted a conversation between defendant and Flint, as defendant described it to the witness: “she had told him he had to be more careful with Colbi. . . and if he happened to get angry or upset, to shake the teddy bear instead of Colbi.” (In a statement to police after Colbi’s death, defendant admitted telling Flint something quite similar.) A third witness said that Flint had shown the witness some bruises on Colbi’s head and that, when defendant learned of the conversation, she “walked over to Michael and started yelling at him .... She asked him why he pointed out the bruises to me.”

Three witnesses said they had told defendant to call the police, leave the apartment or both. A fourth told her that the idea of Flint as babysitter “scared me and made me quite nervous for Colbi,” and a fifth, when defendant told him that Flint would be babysitting, observed: “You’re nuts.”

There was other evidence that defendant knew Flint could be violent and cruel. Three witnesses testified that defendant told them Flint had abused her physically: one said that, according to defendant, Flint had shoved, hit and bitten her; another that defendant had “bruises . . . that she said [were] from Michael”; and a third that she had “bruises and a burn” that she said “were from Mike.” Two witnesses testified that defendant knew Flint had been charged with cruelty to a dog, and one said that she had “started to believe” he was guilty of that crime. The same witness testified that, according to defendant, Flint had once kicked a kitten against a wall; defendant later found the kitten dead; and “she believed Michael had killed the cat.”

The events of the last days of Colbi’s life, while directly relevant to the dismissed manslaughter count (based on failure to seek medical care), also have some bearing on the counts before us, because they show defendant’s persistence in leaving Colbi with a dangerous man. Flint called defendant at work on November 12 to tell her that “the baby had fallen in the shower.” Defendant reported this to a coworker who was a certified nursing assistant, and received advice about what symptoms to look for. Arriving home, defendant found, according to her statement to the police, that Colbi “had bruising on the side of his face, his eyes were black and blue, he had a fat lip, and he had redness on his torso and his neck area.” Flint told her the baby had vomited — one of the symptoms the coworker had identified as calling for medical attention.

Defendant not only sought no care for the baby; there was evidence that she tried to conceal the injuries. A witness who encountered Colbi, Flint and defendant the following morning, before defendant went to work, testified that her attention was drawn by Colbi’s “persistent, weak . . . very strange cry.” Colbi was dressed in a snowsuit, with a hood covering his head (though defendant herself wore a T-shirt). When the witness slid the hood back, she saw that Colbi had two black eyes, and asked defendant: “Did you take him to the hospital?” Defendant replied, falsely, that she had been at the hospital all night, and that the doctor had told her that the baby was fine. Later that day, defendant went to work as usual, leaving Colbi with Flint for the last time.

We must decide whether this evidence shows the degree of culpability necessary to support defendant’s manslaughter and reckless endangerment convictions. We consider the two separately.

Manslaughter

Defendant was convicted of manslaughter in the second degree, a class C felony, under Penal Law § 125.15 (1), applicable to someone who “recklessly causes the death of another person.” “Recklessly” is defined in Penal Law § 15.05 (3), which says, in relevant part:

“A person acts recklessly with respect to a result . . . when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur . . . The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

The question here is whether the jury could find, beyond a reasonable doubt, that defendant was aware of, and consciously disregarded, a substantial and unjustifiable risk that leaving Colbi in Flint’s care would lead to Colbi’s death. It is not enough that defendant should have known the child’s life was in danger, or that she did know the child could be seriously hurt. She must have actually known of, and consciously disregarded, a risk to the child’s life (see People v Wong, 81 NY2d 600, 608 [1993]). On the other hand, it is not necessary to a manslaughter conviction that defendant knew the child would die, or believed it likely. Even a small risk that a baby will die of child abuse is “substantial and unjustifiable.”

We conclude that the evidence is sufficient to support the jury’s finding that defendant knew such a risk existed. The evidence shows that defendant knew, or at least believed it possible, that Flint was hitting, shaking and biting her child. She knew that he was capable of inflicting significant injury on an adult, herself. She believed him capable of killing a small animal in a rage. She was worried enough to tell Flint that, if he was angry, he should “shake the teddy bear instead of Colbi.” Yet, she left Colbi with Flint again and again — even after she saw, on November 12 and 13, that Colbi had been seriously hurt.

It is, perhaps, conceivable that defendant did not actually know that Flint’s maltreatment of Colbi created a risk to the child’s life, but the jury could rationally find that she did know it. The dissent, in concluding otherwise, proceeds on the mistaken premise that “[w]e know” from the Appellate Division’s dismissal of the first manslaughter count that defendant perceived no substantial and unjustifiable risk to Col-bi’s life during the child’s last three days (dissenting op at 367). In fact, the dismissal establishes only that the People failed to prove defendant knew the injuries Colbi had already received were life-threatening. There is no inconsistency in holding, as the Appellate Division correctly did, that the People presented sufficient evidence that defendant knew — before and during the last days of Colbi’s life — of a substantial and unjustifiable risk that Flint would injure him fatally.

Having found that defendant knew of that risk, the jury was also justified in finding that she consciously disregarded it. And it is obvious that the risk was “of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” The evidence was therefore sufficient to support defendant’s conviction for manslaughter in the second degree.

Reckless Endangerment

Reckless endangerment in the first degree is defined by Penal Law § 120.25: “A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.”

This crime, a class D felony, is less serious than manslaughter in the second degree. Yet the mental culpability necessary to support defendant’s reckless endangerment conviction is greater than that required to support her manslaughter conviction: to be guilty on the reckless endangerment count, she must have acted not only recklessly, but also with depraved indifference to human life.

The reason for this apparent anomaly is an exercise of prosecutorial discretion. The People chose not to charge defendant with depraved indifference murder, though such a charge has just as much basis in the record as the charge of first degree reckless endangerment. The definition of depraved indifference murder contained in Penal Law § 125.25 (2) is identical to the definition of reckless endangerment that we have quoted, except that the murder statute adds the words “and thereby causes the death of another person.” Here, of course, the person who was put at risk did die, and indeed the jury, in convicting defendant of manslaughter, so found. Thus the jury that convicted defendant on the reckless endangerment count would, if it was logically consistent, also have convicted her of depraved indifference murder had that charge been presented to it. And we cannot uphold her reckless endangerment conviction unless we would uphold a murder conviction on the same facts.

The distinction between conscious disregard of a known risk to human life (required for a reckless manslaughter conviction) and depraved indifference to human life (required for a depraved indifference murder or first degree reckless endangerment conviction) can be hard to grasp, especially in a disturbing case like this one. Consciously to disregard a substantial risk to the life of one’s own child — as the jury found, on legally sufficient evidence, this defendant did — is shocking behavior, and in ordinary speech people might call it “depraved.” But “depraved indifference to human life,” as used in the murder and reckless endangerment statutes, is something even worse.

Our cases make clear that the word “indifference” is to be taken literally: “depraved indifference is best understood as an utter disregard for the value of human life — a willingness to act . . . because one simply doesn’t care whether grievous harm results or not” (People v Feingold, 7 NY3d 288, 296 [2006], quoting 7 NY3d at 298 [Ciparick, J., dissenting], quoting People v Suarez, 6 NY3d 202, 214 [2005]). In other words, a person who is depravedly indifferent is not just willing to take a grossly unreasonable risk to human life — that person does not care how the risk turns out. This state of mind is found only in “rare cases” (Suarez, 6 NY3d at 218-219 [G.B. Smith, Rosenblatt and R.S. Smith, JJ., concurring]). Such cases do exist; in the situation before us, Flint pleaded guilty to depraved indifference murder, and we do not suggest that his plea was ill-founded. But depraved indifference to the life of another is still rare, and it is surely even rarer when the other person is one’s own child.

Here, while the evidence certainly shows that defendant cared much too little about her child’s safety, it cannot support a finding that she did not care at all. On the contrary, the evidence shows that defendant feared the worst and — recklessly, as the jury found — hoped for the best. A witness who unsuccessfully advised defendant to call the police about Flint’s behavior testified that defendant seemed “worried,” and no witness’s testimony points to a contrary finding. Some of the evidence most damaging to defendant on the manslaughter count is actually favorable to her on the depraved indifference issue. Thus her statement that she “was scared” and “never knew what she was going to go home to” shows that she was fearful of harm to her baby, not that she was indifferent to the possibility. And in telling Flint to “shake the teddy bear instead of Colbi,” she was trying, however weakly and ineffectively, to protect the child.

There is, it is true, evidence that defendant not only knew of, but tried to conceal, Flint’s abuse of the child. She chastised Flint for showing someone Colbi’s bruises and, in the last hours of Colbi’s life, she tried to hide his injuries and lied to minimize their severity. Even this, however, does not show — and nothing in the record shows — that defendant did not care whether Colbi lived or died. Trying to cover up a crime does not prove indifference to it.

In short, while the evidence is sufficient to support the jury’s finding that defendant was guilty of manslaughter, it would not support a conviction for the even more serious crime of depraved indifference murder. Perhaps the People implicitly recognized this when they decided not to bring a murder prosecution— even though they asked the jury to find all the elements of depraved indifference murder. Since a murder conviction could not stand on this record, as a matter of logic the conviction of depraved indifference reckless endangerment cannot stand either.

Ill

Defendant suggests several other reasons for reversal. We reject them all; three warrant some discussion.

First, defendant claims that one of several statements that she gave to the police after Colbi’s death should have been suppressed because it was taken in violation of her “indelible” right to counsel (see generally People v Lopez, 16 NY3d 375, 377 [2011]; People v Bing, 76 NY2d 331 [1990]). That right attached, defendant says, when counsel was appointed for her in a Family Court proceeding, hours before Colbi was officially pronounced dead. Though the child was, according to the first doctor who saw him, “moribund” and “essentially deceased” when he arrived at the hospital on November 13, a vain effort to resuscitate him continued for almost 24 hours. During that time, a proceeding was begun to remove Colbi from defendant’s home, and Family Court appointed a Legal Aid lawyer to represent defendant. The People were notified of the appointment at 4:06 p.m. on November 14; Colbi was declared dead, thus mooting the Family Court proceeding and ending the attorney-client relationship, at 6:18 p.m. During that two-hour interval, defendant, who had previously received Miranda warnings and agreed to speak to the police, continued answering their questions. She now says that the questioning should have stopped when the People received notice that she was represented by counsel.

We have never held, and we now reject the argument, that the indelible right to counsel can attach by virtue of an attorney-client relationship in a Family Court or other civil proceeding. The indelible right, as Judge Kaye’s concurring and dissenting opinion in Bing explained, has “at its core the perception that in criminal cases — wholly unlike civil cases — the presence of an attorney is the most effective means we have of minimizing the disadvantage at which an accused is placed when . . . directly confronted with the awesome law enforcement machinery possessed by the State” (76 NY2d at 351 [internal quotation marks omitted and emphasis added]). Thus while an attorney-client relationship formed in one criminal matter may sometimes bar questioning in another matter in the absence of counsel (see Lopez, 16 NY3d at 380), a relationship formed in a civil matter is not entitled to the same deference.

People v Townes (41 NY2d 97 [1976]), on which defendant relies, is distinguishable. There, an attorney-client relationship was formed in a criminal proceeding: “the defendant was arraigned in criminal court and counsel was assigned by order of that court” (id. at 99). A police officer then interviewed the defendant, in the absence of counsel, in connection with a complaint the defendant had filed with the Civilian Complaint Review Board, and the People sought to use the resulting statements in the criminal case. We held that the criminal and Review Board proceedings were so closely related that the indelible right, which attached when an attorney-client relationship was formed in the criminal case, barred questioning in the noncriminal one. But here no relationship was formed in a criminal case, and no indelible right ever attached.

Secondly, defendant argues that the trial court erred in its response when, during jury deliberations, one of the jurors sent an odd and inappropriate note asking for the opportunity to thank all concerned, after the verdict was rendered, for the privilege of serving. The note mentioned, among other things, the breakup of the juror’s marriage and her view that the male lawyer who sat in the second chair at the prosecution table was a “Cutie”; the juror asked, perhaps jokingly, to be given that lawyer’s telephone number when the trial was over.

We think the trial judge handled this problem quite skillfully. After disclosing the note to counsel and discussing it with them, he interviewed the juror in counsel’s presence; explained to her gently that the note was inappropriate; and obtained her assurance that nothing, including her favorable impression of a prosecutor, would prevent her from being fair to both sides. Nothing in the interview, or in the note itself, suggests that the juror was biased. Indeed, she made clear that her gratitude for the opportunity to serve extended not only to the judge and both sides’ lawyers, but to defendant personally. Defendant argues in substance that the juror’s note and her comments during the dialogue in chambers show that the juror had an eccentric personality, but eccentrics are not barred from serving on juries. Under CPL 270.35 (1), a sworn juror may be discharged only if the court finds that she “is grossly unqualified to serve ... or has engaged in misconduct of a substantial nature.” This juror was not grossly unqualified and engaged in no substantial misconduct. There was no reason for the trial judge either to discharge her or to make further inquiry.

Thirdly, defendant complains of five words in the trial court’s response to a juror’s question during deliberations about the meaning of recklessness. In its original charge, the court defined that term twice, once in explaining the elements of manslaughter and again in explaining the elements of reckless endangerment. The court’s definition tracked the language of Penal Law § 15.05 (3), and defendant does not complain of it. After retiring to deliberate, the jury asked several times for the definition to be reread, and the court obliged. Later, in response to a jury note, the court gave a slightly expanded version of the definition, not changing its substance but separating it into three components — awareness of a risk, conscious disregard of the risk, and gross deviation from a reasonable person’s standard of conduct. This supplemental charge, also, is not now challenged.

After some other supplemental instructions were given, a juror asked for further explanation of recklessness, saying: “Are we supposed to do [sic] consider how the Defendant is thinking or what a reasonable person would think?” After a discussion with counsel outside the jury’s presence, the court replied that recklessness “requires both of those things.” The judge again took the jury through the three components of recklessness, summarizing the second — conscious disregard of a known risk — in this way:

“Then the second part is required as well. So, besides the first part, the second part must be that he or she — in this case, the Defendant — was aware of and consciously disregarded the risk. So, that goes to the particular person, what they saw, what they should have seen, and what they disregarded” (emphasis added).

The court concluded its response to the juror’s question by saying:

“So, long and short answer to your question is both of those things come in: What the individual Defendant’s aware of, and what she or he consciously disregards; and then secondly, whether that risk that they’re aware of deviated from — constitutes a gross deviation from the standard that a reasonable person would observe.”

It is undisputed that, in including the words “what they should have seen” in its description of conscious disregard, the court misspoke. The jury was required to consider what risk defendant actually perceived and disregarded, not what she should have perceived. Indeed, when this supplemental charge is examined minutely, the words “should have seen” do not make sense; it is not possible “consciously” to disregard something one “should have” seen but did not.

In evaluating a jury charge, however, we are “not limited to the appropriateness of a single remark” (People v Umali, 10 NY3d 417, 426 [2008]). Rather, we examine “the context and content of the entire charge” (id. at 427) and determine whether “the instruction as a whole . . . was likely to confuse the jury” (People v Fields, 87 NY2d 821, 823 [1995]). We are satisfied that the minor error in the supplemental charge here created no significant risk of confusion. The jurors had already heard, several times, a completely correct explanation of recklessness as defined in the Penal Law. The juror’s specific question — should the jury consider what defendant actually thought, or what a reasonable person would have thought — was concisely answered at the beginning and end of the supplemental charge with the word “both.” And the supplemental charge as a whole makes clear that the jury must consider both the risk defendant actually perceived and disregarded, and what a reasonable person in her situation would have done. The supplemental charge, taken as a whole, was proper.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be modified by vacating defendant’s conviction for reckless endangerment in the first degree, dismissing that count of the indictment and remitting the matter to County Court for resentencing, and as so modified affirmed.

Jones, J.

(dissenting in part). I agree with the majority’s dismissal of the reckless endangerment count. However, I dissent from that portion of the majority’s opinion upholding defendant’s conviction for manslaughter in the second degree (count seven of the indictment) because I do not believe this conviction was supported by legally sufficient evidence.

In a legal sufficiency inquiry, this Court’s role is limited to determining whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (Jackson v Virginia, 443 US 307, 319 [1979]; see also People v Contes, 60 NY2d 620, 621 [1983]). Where the evidence adduced at trial establishes “any valid line of reasoning and permissible inferences [that] could lead a rational person” to convict, then the conviction survives sufficiency review (People v Williams, 84 NY2d 925, 926 [1994]). “A sufficiency inquiry requires a court to marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof’ (People v Danielson, 9 NY3d 342, 349 [2007]).

Penal Law § 125.15 (1) provides that a “person is guilty of manslaughter in the second degree when . . . [h]e recklessly causes the death of another person” (emphasis added). Penal Law § 15.05 (3) defines the term “recklessly” as follows:

“A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

Thus, the elements of second-degree manslaughter are “the creation of a substantial and unjustifiable risk [of death]; an awareness and disregard of the risk on the part of defendant; and a resulting death” (People v Licitra, 47 NY2d 554, 558 [1979]).

Our case law makes clear that causation is “an essential element which the People must prove beyond a reasonable doubt” in a second-degree manslaughter prosecution (People v Stewart, 40 NY2d 692, 697 [1976]). That is, “the defendant’s actions must be a sufficiently direct cause of the ensuing death” (id.). If . the evidence only establishes a possible or probable connection between defendant’s acts and the victim’s death, the evidence is not legally sufficient to support a conviction for second-degree manslaughter (see id.).

Defendant Alicia Lewie is not alleged to have herself ever physically abused her child. She is accused of recklessly causing the death of her eight-month-old son by repeatedly leaving him in her live-in boyfriend’s (Michael Flint) unsupervised care during a 45-day period prior to the child’s death (between October 1, 2007 and November 14, 2007), despite being aware that Flint was physically abusing the child. Because she is a “passive” defendant charged with reckless manslaughter, this Court’s decision in People v Wong (81 NY2d 600 [1993]) has application. In Wong, both caretakers of an infant who died of shaken baby syndrome were convicted of first- and second-degree manslaughter and endangering the welfare of child, even though there was no evidence as to which of the caretakers shook the child. In reversing the convictions, this Court held that the prosecution had to establish that the passive defendant was personally aware that the physical abuse had taken place and “that such abusive conduct created a risk that the infant would die without prompt medical treatment” (Wong, 81 NY2d at 608 [emphasis added]; see People v Northrup, 83 AD2d 737 [3d Dept 1981]). In Northrup, defendant mother was convicted in Otsego County Court of depraved indifference murder stemming from the death of her son at the hands of her live-in boyfriend, who physically abused the child. Defendant was charged with causing her son’s death by unjustifiably and inexcusably failing to obtain or provide medical care or assistance for him. In reversing this conviction on legal sufficiency grounds, the Appellate Division wrote:

“Evidence is lacking that this 23-year-old woman, without medical training or knowledge, was cognizant of that risk [of death] and consciously disregarded it. Although the external injuries were serious, [her son] ceased crying and walked about without complaining shortly after [her boyfriend] left. Particularly noteworthy is the fact that the injury causing his death was an internal one, not detectable from observing the boy’s body. In our view, this record does not support a finding that defendant acted recklessly” (Northrup, 83 AD 2d at 738 [emphasis added]).

The Northrup court further stated, “[s]ince reckless conduct is also a requisite for manslaughter in the second degree, one of the lesser included offenses which was charged, defendant’s conviction of that crime must likewise be ruled out” (83 AD2d at 738).

The prosecution here built its reckless manslaughter case around the allegation that sometime during the stated 45-day period, defendant actually became aware that Flint was physically abusing her son and chose to ignore the grave risk this conduct posed for the child by repeatedly leaving him in Flint’s unsupervised care. To make out its case, the prosecution had witnesses testify that defendant told them that Flint, on numerous occasions, had physically abused her and was physically abusing her child in her absence. Further, the prosecution proffered medical evidence which confirmed that defendant’s son had been repeatedly abused during the period of time that defendant left him in Flint’s unsupervised care.

While this evidence may have shown that defendant was criminally negligent in leaving her child with Flint, it did not establish the elements necessary to support a reckless manslaughter conviction. The evidence, when viewed in the light most favorable to the prosecution, established that the acts of abuse took place while defendant was at work — i.e., defendant could not know the severity of the abuse to the child; it was not possible for defendant to know that the injuries sustained by her child were life-threatening or could contribute to his death because to the naked eye they only appeared to be marks or bruises; hospital personnel were only able to determine the extent of the child’s internal injuries after multiple X rays and blood tests were performed; and the internal injuries that caused the child’s death were only detected upon the medical examiner’s internal inspection of the child’s remains during the postmortem examination. Further, while the evidence established that the child’s death resulted from trauma to the head, the medical examiner was unable to pinpoint precisely when the trauma was inflicted upon the child. He could only opine that the fatal injuries were sustained within four days prior to his death (which occurred on November 14, 2007).

While the evidence adduced at trial established that defendant was aware of a risk of abuse to her son, the prosecution did not meet its burden of establishing defendant’s awareness and conscious disregard of a substantial and unjustifiable risk of her son’s death. There was no evidence to establish at what point during the stated 45-day period defendant actually perceived that her child was exposed to a substantial and unjustifiable risk of death. We know from the unchallenged dismissal of the reckless manslaughter count under count six of the indictment that the jury could not rationally find that defendant perceived this risk during the last three days of her son’s life, the last three days of the stated 45-day period. We further know from the dismissal of count six that the jury could not rationally find that defendant perceived this risk when during the three days covered by that count she left her child in Flint’s care when she left for work. Nor was there evidence that defendant would have disregarded a substantial and unjustifiable risk to her child’s life even had one been apparent. Her actions — on November 12 and 13, 2007 — with respect to her child — i.e., attempting to treat him with over-the-counter medications, feeding and playing with him, checking on him throughout the night, and when it became apparent that his condition worsened, calling 911 and taking him to the hospital — belie the allegation that she would have consciously disregarded a substantial and unjustifiable risk to her child’s life.

Moreover, the evidence adduced by the prosecution did not prove that defendant was aware that Flint’s abusive conduct created a risk that defendant’s child would die without prompt medical treatment (see Wong, 81 NY2d at 608). As stated supra, it was not possible for defendant to know that the injuries sustained by her child were life-threatening or could contribute to his death. Further, there was no proof demonstrating that defendant’s acts (of leaving the child with Flint) or omissions were a sufficiently direct cause of the child’s death (see Stewart, 40 NY2d at 697).

In upholding defendant’s reckless manslaughter conviction, the majority concludes that the jury could logically find, based on the evidence adduced at trial, that defendant knew a substantial and unjustifiable risk of death existed and consciously disregarded it (see majority op at 357). But, in support of the inference it claims the jury could make, the majority points to evidence of defendant’s awareness of a risk of physical abuse, not death. Stated differently, the majority, without support, equates knowledge of a risk of physical abuse with knowledge of a risk of death. In effect, the majority has held that once a parent is aware his/her child has been physically abused by someone with whom they regularly leave the child, even where the abuse occurs outside the presence of the parent, and even where any injuries sustained appear to be superficial, that parent may be held criminally liable for reckless manslaughter if the child dies at the hands of the abusive caregiver. Such a ruling marks an unwarranted departure from our jurisprudence and a drastic diminution of the proof required to make out reckless manslaughter in a case involving a passive defendant parent. Indeed, the majority’s holding appears to read the very stringent direct causation requirement out of the reckless manslaughter statute in cases involving passive defendant parents.

For the foregoing reasons, I would modify by dismissing count seven of the indictment charging reckless manslaughter and by dismissing count eight of the indictment charging reckless endangerment.

Judges Ciparick, Graffeo, Read and Pigott concur with Judge Smith; Judge Jones dissents in part and votes to modify by dismissing count seven of the indictment charging manslaughter in the second degree and by dismissing the count charging reckless endangerment, in a separate opinion in which Chief Judge Lippman concurs.

Order, insofar as appealed from, modified, etc.

       Viewing this evidence in conjunction with the trial court’s supplemental instruction to the jury explaining recklessness in terms of what defendant saw, what defendant should have seen, and what defendant disregarded, a reasonable argument could be made that the jury convicted defendant of reckless manslaughter based on proof of criminally negligent homicide.


text:
    [953 NE2d 794, 929 NYS2d 556]
    John McCarthy et al., Plaintiffs, v Turner Construction, Inc., Defendant, John Gallin & Son, Inc., Respondent, and Boston Properties, Inc., et al., Appellants. (And Other Actions.)
    Argued June 1, 2011;
    decided June 28, 2011

      POINTS OF COUNSEL

      Carol R. Finocchio, New York City and Marie R. Hodukavich, for appellants.
    I. Boston Properties, Inc. and Time Square Tower Associates, LLC are entitled to common-law indemnification from John Gallin & Son, Inc., the general contractor who assumed overall responsibility for the project, including supervi-. sion and control of the work and safety of persons working on the project. (McDermott v City of New York, 50 NY2d 211; Rosado v Proctor & Schwartz, 66 NY2d 21; Service Sign Erectors Co. v Allied Outdoor Adv., 175 AD2d 761; City of New York v Lead Indus. Assn., 222 AD2d 119; Glaser v Fortunoff of Westbury Corp., 71 NY2d 643; Raquet v Braun, 90 NY2d 177; 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75; Colyer v K Mart Corp., 273 AD2d 809; Felker v Corning Inc., 90 NY2d 219; Gillmore v Duke/Fluor Daniel, 221 AD2d 938.) II. As a matter of sound public policy, this Court should hold that common-law indemnification may be granted upon a showing that the indemnitor either was actually negligent or that it had the authority to direct, control or supervise the injury-producing work. (Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1; Godoy v Abamaster of Miami, 302 AD2d 57.) III. Even if this Court holds that the standard for common-law indemnification requires actual direction, control and supervision over plaintiffs work, Boston Properties, Inc. and Time Square Tower Associates, LLC are still entitled to common-law indemnification from John Gallin & Son, Inc. (Chapel v Mitchell, 84 NY2d 345.)

      Malapero & Prisco, LLP, New York City (Andrew L. Klauber and Frank J. Lombardo of counsel), and Farber Brocks & Zone L.L.P., Mineola (Sherri N. Pavloff of counsel), for respondent.
    I. Defendants-appellants are not entitled to common-law indemnification. (D’Ambrosio v City of New York, 55 NY2d 454; Chapel v Mitchell, 84 NY2d 345; Mas v Two Bridges Assoc., 75 NY2d 680; Board of Mgrs. of Riverview at Coll. Point Condominium III v Schorr Bros. Dev. Corp., 182 AD2d 664; Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652; Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1; Raquet v Braun, 90 NY2d 177; Landgraff v 1579 Bronx Riv. Ave., LLC, 18 AD3d 385; Farduchi v United Artists Theatre Circuit, Inc., 23 AD3d 613; Delaney v Spiegel Assoc., 225 AD2d 1102.) II. Defendants-appellants’ common-law indemnification motion was untimely as a matter of law. (Brill v City of New York, 2 NY3d 648; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725; Filannino v Triborough Bridge & Tunnel Auth., 34 AD3d 280.) III. The doctrines of law of the case and collateral estoppel preclude defendants-appellants from relitigating the issues raised on this appeal. (Briggs v Chapman, 53 AD3d 900; Town of Massena v Healthcare Underwriters Mut. Ins. Co., 40 AD3d 1177; Webster v Ragona, 51 AD3d 1128; Beneke v Town of Santa Clara, 45 AD3d 1164, 10 NY3d 706; Brownrigg v New York City Hous. Auth., 29 AD3d 721; Kaufman v Eli Lilly & Co., 65 NY2d 449; Lodal, Inc. v Home Ins. Co., 309 AD2d 634; Fish v Vanderlip, 218 NY 29; O’Brien v City of Syracuse, 54 NY2d 353; Ryan v New York Tel. Co., 62 NY2d 494.)
   OPINION OF THE COURT

Jones, J.

The issue before the Court is whether defendant property owners Boston Properties, Inc. and Times Square Tower Associates, LLC (the property owners) are entitled to common-law indemnification from defendant general contractor John Gallin & Son, Inc. (Gallin). For the reasons that follow, we hold they are not.

The property owners leased a retail storefront located at 7 Times Square Tower (the premises) to nonparty Ann Taylor, Inc. By agreement dated December 20, 2004, Ann Taylor, Inc. engaged Gallin, as construction manager, to build out its space. Pursuant to the agreement, Gallin was required to “supervise and direct the Work, using [its] best skill and attention^ and] be solely responsible for and have control over construction means, methods, techniques, sequences and procedures for coordinating all portions of the Work under the Contract.” The agreement further stated that Gallin was required to take reasonable safety precautions to protect the workers from injury. The name of the construction project was “Ann Taylor 7 Times Square.”

Pursuant to a purchase order dated December 29, 2004, Gallin engaged Linear Technologies, Inc. (Linear) as its subcontractor to install telephone and data cables. About two weeks later, Linear, by purchase order, hired Samuels Datacom, LLC (Samuels) as its subcontractor to perform the actual cable installation for the project. Plaintiff, an electrician, was an employee of Samuels.

On March 2, 2005, plaintiff, while working on the project site, was injured when he fell from an A-frame ladder. Plaintiff, and his wife derivatively (collectively, plaintiff), brought a personal injury action against Turner Construction, Inc., Gallin and the property owners, asserting claims under Labor Law §§ 200, 240 (1) and § 241 (6) and common-law negligence. In their answer, the property owners asserted cross claims for contribution and common-law indemnification, contractual indemnification and breach of contract against Gallin. Subsequently, Gallin impleaded Linear, and Linear impleaded Samuels. After the completion of discovery and the filing of the note of issue, motions and cross motions for summary judgment were brought regarding, inter alia, the parties’ Labor Law § 240 (1) liability and the property owners’ contractual indemnification claim against Gallin.

Supreme Court granted plaintiff summary judgment on his Labor Law § 240 (1) claim, finding that the property owners and Gallin were vicariously liable for plaintiffs injuries under the statute. Further, the court denied that portion of the property owners’ cross motion for summary judgment seeking contractual indemnification against Gallin, finding that there was no contract between the property owners and Gallin, and that the property owners were not third-party beneficiaries of the agreement between Ann Taylor, Inc. and Gallin such that they could avail themselves of any contractual indemnification claim that might be owed by Gallin. In addition, the court found and held that

“the record contains no evidence of Gallin’s negligence. Although Gallin interacted with Linear, Gallin had no supervisory authority over Samuel[s]’s work. [Further, Robert] Kondracki[ — Gallin’s vice-president and project manager — ]stated that Gallin would not have directed [plaintiff] how to perform his work, and [that] Gallin did not provide any tools or ladders to the subcontractors who worked at the [project] site.” (2007 NY Slip Op 31325[U], *14-15.)

The defendants eventually settled plaintiffs claims for $1.6 million, with the property owners contributing $800,000 and Gallin contributing $800,000.

Relying primarily on the agreement between Ann Taylor, Inc. and Gallin, the property owners then moved for judgment on their cross claim for common-law indemnification against Gallin. Supreme Court denied the motion and dismissed the property owners’ claim, concluding they failed to establish that Gallin “had direct control over the work giving rise to the injury” (i.e., plaintiffs work) (24 Misc 3d 1245[A], 2009 NY Slip Op 51889[U], *5). The Appellate Division affirmed, stating “Gallin neither was negligent nor directly supervised and controlled plaintiffs work” (72 AD3d 539 [1st Dept 2010] [citation omitted]).

The Appellate Division, First Department, granted the property owners leave to appeal and certified the following question to the Court: “Was the order of the Supreme Court, as affirmed by this Court, properly made?” We now affirm the order of the Appellate Division, and answer the certified question in the affirmative.

The property owners argue they are entitled to common-law indemnification, whether or not Gallin directly supervised and controlled plaintiffs work, since Gallin, by virtue of its agreement with Ann Taylor, Inc., contractually assumed sole responsibility and control of the entire project, and had the contractual authority to (1) direct, supervise and control the means and methods of plaintiffs work, and (2) institute safety precautions to protect the workers. Based on this authority, the property owners argue, only Gallin was in the position to take any steps to protect plaintiff and prevent the accident. The property owners thus request that this Court adopt the following general rule: a party may be liable for common-law indemnification upon a showing that the party (i.e., the proposed indemnitor) either was actually negligent or had the authority to direct, control or supervise the injury-producing work, even if it did not exercise that authority. In essence, the property owners are equating a party with mere authority to direct, control or supervise with a party who is actively at fault in bringing about the injury suffered by the plaintiff.

We reject the property owners’ arguments and their proposed articulation of the applicable rule because under their rule, every party engaged as a general contractor or construction manager, whether by the owner or not, would owe a common-law duty to indemnify the owner regardless of whether such party was actively at fault in bringing about the injury. This proposed rule is not consistent with the equitable purpose underlying common-law indemnification.

Labor Law § 240 (1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites (see Rocovich v Consolidated Edison Co., 78 NY2d 509, 512-513 [1991]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]; Felker v Corning Inc., 90 NY2d 219, 223-224 [1997]). However, Labor Law § 240 (1) — which holds owners and general contractors absolutely liable for any breach of the statute even if “the job was performed by an independent contractor over which [they] exercised no supervision or control” (Rocovich, 78 NY2d at 513) — does not obviate the right of an owner or general contractor, who is only vicariously liable by statute, to seek “full indemnification from the party wholly responsible for the accident” (Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1, 6 [1974]).

A party’s right to indemnification may arise from a contract or may be implied “based upon the law’s notion of what is fair and proper as between the parties” (Mas v Two Bridges Assoc., 75 NY2d 680, 690 [1990]). Tmplied[, or common-law,] indemnity is a restitution concept which permits shifting the loss because to fail to do so would result in the unjust enrichment of one party at the expense of the other” (id., citing McDermott v City of New York, 50 NY2d 211, 216-217 [1980]; see also Rosado v Proctor & Schwartz, 66 NY2d 21, 24 [1985] [indemnity may be implied “to prevent a result which is regarded as unjust or unsatisfactory” and “is frequently employed in favor of one who is vicariously liable for the tort of another” (internal quotation marks and citations omitted)]). Common-law indemnification is generally available “in favor of one who is held responsible solely by operation of law because of his relation to the actual wrongdoer” (Mas, 75 NY2d at 690; see D’Ambrosio v City of New York, 55 NY2d 454, 460 [1982]).

Consistent with the equitable underpinnings of common-law indemnification, our case law imposes indemnification obligations upon those actively at fault in bringing about the injury, and thus reflects an inherent fairness as to which party should be held liable for indemnity (see e.g. Rogers v Dorchester Assoc., 32 NY2d 553 [1973]; Kelly v Diesel Constr. Div. of Carl A. Morse, Inc., 35 NY2d 1 [1974]; Felker v Corning Inc., 90 NY2d 219 [1997]). The Rogers Court concluded that common-law indemnification was available to the owner and manager of an apartment building, held statutorily liable under Multiple Dwelling Law § 78 — which imposes a nondelegable duty on owners to maintain their premises in a reasonably safe condition — for plaintiffs injuries resulting from an elevator accident, against Otis Elevator Company because Otis, under a maintenance contract, assumed “the exclusive duty to maintain the elevators” and “the owner and manager had the right... to look to Otis to perform their entire duty to plaintiff’ (Rogers, 32 NY2d at 563; see Mas, 75 NY2d 680 [same]). In Kelly, the Court held that a general contractor was entitled to full indemnity from subcontractor hoist company whose negligence was the sole cause of plaintiffs (who was subcontractor’s employee) accident. Although the general contractor “undertook to furnish, maintain and operate the hoist,” it, through various subcontracts, delegated responsibility for supply and maintenance of the hoist “particularly its brakes and other safety devices” to the hoist company, which inspected the equipment before and after installation (Kelly, 35 NY2d at 4-5). Felker involved a plaintiff who was injured when he fell over an eight-foot alcove wall and through a suspended ceiling to the floor nine feet below. This Court held that the general contractor was entitled to common-law indemnification from the subcontractor (plaintiffs employer) notwithstanding the absence of a showing of negligence on the part of the subcontractor and the existence of a contractual agreement to indemnify the general contractor only if the subcontractor is negligent (see Felker, 90 NY2d at 226). The Court based its holding on the fact the subcontractor supervised and controlled the work of the injured plaintiff (id.).

Although our case law imposes the duty to indemnify on those parties who actually supervised and controlled the injury-producing work, some of the Appellate Division decisions have reached different conclusions regarding what sort of showing must be made to establish a claim for common-law indemnification where the proposed indemnitor is not actually negligent in causing the injury. A number of decisions have suggested that a party may be obligated to indemnify under the common law solely on the basis of that party’s authority to supervise the work at a site (see e.g. Rodriguez v Metropolitan Life Ins. Co., 234 AD2d 156, 156 [1st Dept 1996] [held that the subcontractor was obligated to indemnify defendants (owner and general contractor); the court stated, “A subcontractor may be obligated to indemnify under the common law upon proof that its actual negligence caused an accident, but it can also be held liable where it ‘had the authority to direct, supervise and control the work giving rise to the injury’ ” (234 AD2d at 156, quoting Terranova v City of New York, 197 AD2d 402, 402 [1st Dept 1993])]; Hernandez v Two E. End Ave. Apt. Corp., 271 AD2d 570, 571 [2d Dept 2000] [Hernandez I) [court repeats the rule that a subcontractor may be liable for common-law indemnification based on its “authority to direct, supervise and control the work giving rise to the injury” (quoting Rodriguez, 234 AD2d at 156)]; Hernandez v Two E. End Ave. Apt. Corp., 303 AD2d 556, 557 [2d Dept 2003] [same as Hernandez I; summary judgment on owner’s common-law indemnification claim precluded because material issue of fact existed as to whether the injured plaintiffs employer was only the entity with the authority to direct, supervise, and control work giving rise to plaintiff’s injury]).

In addition, there are cases that support the view that an entity may be liable for common-law indemnification on the basis of its authority, by virtue of a contractual duty, to supervise the work (see e.g. Ortega v Catamount Constr. Corp., 264 AD2d 323 [1st Dept 1999]). In Ortega, the court found a common-law indemnity obligation where the proposed indemnitee, the property owner, “did not exercise any actual control or supervision over the work” because the owner had “hired [the construction manager] to exercise such control and supervision” (264 AD2d at 324). The Ortega decision specifically refers to “the absence of any evidence of the construction manager’s direct supervision of the work in which plaintiff was engaged” (id.).

On the other hand, a number of cases have held that common-law indemnity is available against the party that “actually supervised, directed and controlled the work that caused the injuries” (Keck v Board of Trustees of Corning Community Coll., 229 AD2d 1016, 1017 [4th Dept 1996] [emphasis added]; see Landgraff v 1579 Bronx Riv. Ave., LLC, 18 AD3d 385 [1st Dept 2005] [In this Labor Law § 240 (1) action, the building owner brought a third-party claim for common-law indemnification against a building tenant. The court held that owner was not entitled to indemnification from tenant, noting that tenant was not an active tortfeasor and did not exercise any actual control or supervision of the injury-producing work]). In further support of the view that there must be actual supervision over the injury-producing work, the Second Department, in Perri v Gilbert Johnson Enters., Ltd. (14 AD3d 681 [2d Dept 2005]), spoke of common-law indemnification being available against a party that “exclusively supervised and controlled plaintiff’s work site” (14 AD3d at 685).

To be sure, there are cases that appear to stand for the proposition that contractual authority to supervise, direct and control, standing alone, is enough to hold a party liable for indemnity under the common law. However, these cases do not adequately address the question whether a party who is contractually responsible for supervision at a work site is liable in indemnity even if there is a showing that another party, with authority, engaged in actual supervision of the injury-producing work at the site. Moreover, a close examination of a preponderance of the case law reveals that in spite of the different articulations of the applicable standard, the Appellate Division departments have usually, consistent with the equitable principles of common-law indemnification and this Court’s teachings, imposed the obligation to indemnify on parties who were actively at fault in bringing about the injury.

Based on the foregoing, a party cannot obtain common-law indemnification unless it has been held to be vicariously liable without proof of any negligence or actual supervision on its own part. But a party’s (e.g., a general contractor’s) authority to supervise the work and implement safety procedures is not alone a sufficient basis for requiring common-law indemnification. Liability for indemnification may only be imposed against those parties (i.e., indemnitors) who exercise actual supervision (see Felker, 90 NY2d at 226; see also Colyer v K Mart Corp., 273 AD2d 809, 810 [4th Dept 2000] [for standard]). Thus, if a party with contractual authority to direct and supervise the work at a job site never exercises that authority because it subcontracted its contractual duties to an entity that actually directed and supervised the work, a common-law indemnification claim will not lie against that party on the basis of its contractual authority alone.

Here, Gallin and nonparty Ann Taylor, Inc., not the property owners, entered an agreement under which Gallin was Ann Taylor, Inc.’s general contractor/construction manager. Further, Gallin engaged a subcontractor (Linear), which, in turn, engaged its own subcontractor (Samuels), the entity which employed plaintiff. Although the agreement, inter alia, required Gallin to supervise and direct the work at the premises owned by the property owners, this fact alone was insufficient to establish that Gallin actually supervised or directed the injured plaintiffs work, especially in light of the fact that Gallin contracted the work that resulted in plaintiffs injury out to a subcontractor, and Supreme Court’s findings that Gallin (1) had no supervisory authority over Samuels’s (plaintiffs employer’s) work, (2) would not have directed plaintiff as to how to perform his work, and (3) did not provide any tools or ladders to the subcontractors who worked at the site.

Because it did not actually supervise and/or direct the injured plaintiffs work, Gallin is not required to indemnify the property owners under the common law. Indeed, the property owners’ vicarious liability (under Labor Law § 240 [1]) may not be passed through to Gallin, the nonnegligent, vicariously liable general contractor with whom they did not contract. This result is consistent with the law’s notion of what is fair and proper as between Gallin and the property owners (see Mas, 75 NY2d at 690).

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

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

Order affirmed, etc.

      . By stipulation dated November 30, 2005, the action against Turner Construction, Inc. was discontinued.

      . Summary judgment, dismissing so much of plaintiffs complaint as alleged violations of Labor Law §§ 200 and 241 (6) and common-law negligence, was granted in the property owners’ favor.

      . No claim for contractual indemnification is before us.