author:
Smith, J.
      Abdus-Salaam, J. (concurring).

text:
    [997 NE2d 468, 974 NYS2d 896]
    In the Matter of Michael A. Cunningham, Appellant, v New York State Department of Labor, Respondent.
    Argued May 29, 2013;
    decided June 27, 2013

      POINTS OF COUNSEL

      New York Civil Liberties Union Foundation, New York City (Corey L. Stoughton, Arthur Eisenberg and Christopher Dunn of counsel), for appellant.
    I. The government’s global positioning system surveillance of the Cunningham family car was unconstitutional because it failed to comply with the warrant requirement. (People v Weaver, 12 NY3d 433; Matter of Caruso v Ward, 72 NY2d 432; O’Connor v Ortega, 480 US 709; Delia v City of Rialto, 621 F3d 1069; National Assn. of Letter Carriers, AFL-CIO v United States Postal Serv., 604 F Supp 2d 665; Matter of Delaraba v Nassau County Police Dept., 83 NY2d 367; Matter of Seelig v Koehler, 76 NY2d 87; Matter of Patchogue-Medford

      Congress of Teachers v Board of Educ. of Patchogue-Medford Union Free School Dist., 70 NY2d 57.) II. The government’s global positioning system surveillance of the Cunningham family car was unconstitutional even under the workplace-search exception to the warrant requirement. (Matter of Caruso v Ward, 72 NY2d 432; O’Connor v Ortega, 480 US 709; New Jersey v T. L. O., 469 US 325; Matter of Delaraba v Nassau County Police Dept., 83 NY2d 367; People v Weaver, 12 NY3d 433.) III. The exclusionary rule applies to administrative proceedings and should have barred consideration of the global positioning system evidence. (Matter of Boyd v Constantine, 81 NY2d 189; Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647, 396 US 840; Matter of Charles Q. v Constantine, 85 NY2d 571; Matter of Gaglia v Starr, 59 AD2d 839; Matter of McPherson v New York City Hous. Auth., 47 AD2d 828; Battaglia v New York City Tr. Auth., 225 AD2d 384; Matter of Crockett v Bratton, 199 AD2d 1079; Matter of Moore v Constantine, 191 AD2d 769; Matter of Barretto v City of New York, 157 AD2d 116; Worrel v Brown, 177 AD2d 446.)

      Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu, Barbara D. Underwood and Andrea Oser of counsel), for respondent.
    I. Petitioner waived his claim that the global positioning system search was invalid in the absence of a warrant. (Matter of Delaraba v Nassau County Police Dept., 83 NY2d 367; Matter of Caruso v Ward, 72 NY2d 432; O’Connor v Ortega, 480 US 709; Bingham v New York City Tr. Auth., 99 NY2d 355.) II. The global positioning system search did not require a warrant; it was properly analyzed under the standard of reasonableness applicable to investigations of work-related misconduct. (Matter of Delaraba v Nassau County Police Dept., 83 NY2d 367; Matter of Caruso v Ward, 72 NY2d 432; O’Connor v Ortega, 480 US 709; Delia v City of Rialto, 621 F3d 1069; Payton v New York, 445 US 573; National Assn. of Letter Carriers, AFL-CIO v United States Postal Serv., 604 F Supp 2d 665; People v Weaver, 12 NY3d 433; Matter of Abe A., 56 NY2d 288; Matter of Patchogue-Medford Congress of Teachers v Board of Educ. of Patchogue-Medford Union Free School Dist., 70 NY2d 57; Matter of Seelig v Koehler, 76 NY2d 87.) III. The global positioning system data was obtained in a search that was reasonable at inception and in scope. (Matter of Moro v Mills, 70 AD3d 1269; Matter of Boyd v Constantine, 81 NY2d 189; O’Connor v Ortega, 480 US 709; People v Weaver, 52 AD3d 138, 12 NY3d 433; New Jersey v T.L.O., 469 US 325.) IV Alternatively, the Court should sustain so much of the Appellate Division’s decision as found that the global positioning system evidence was harmless as to seven of the underlying charges. (Matter of Wojewodzic v O’Neill, 295 AD2d 670.)

      Richard E. Casagrande, New York City (Wendy M. Star and Keith J. Gross of counsel), for New York State United Teachers, amicus curiae.
    I. The government’s surreptitious placement of a global positioning system device on appellant’s private car without obtaining a warrant was unconstitutional. (People v Weaver, 12 NY3d 433; Skinner v Railway Labor Executives’ Assn., 489 US 602.) II. The warrant exception for workplace searches does not permit the government’s warrantless search of appellant’s car via global positioning system tracking. (O’Connor v Ortega, 480 US 709; Matter of Caruso v Ward, 72 NY2d 432.) III. The Office of the State Inspector General’s function as an investigatory agency further supports that a warrant is required to conduct a search via a global positioning system. IV The exclusionary rule should be applied to exclude the illegally obtained global positioning system information. (Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647, 396 US 840; Matter of Allen v Murphy, 37 AD2d 117; O’Connor v Ortega, 480 US 709; Matter of Caruso v Ward, 72 NY2d 432; People v Weaver, 12 NY3d 433.)
   OPINION OF THE COURT

Smith, J.

The State of New York, suspecting that one of its employees was submitting false time reports, attached a global positioning system (GPS) device to the employee’s car. Under People v Weaver (12 NY3d 433 [2009]) and United States v Jones (565 US —, 132 S Ct 945 [2012]), the State’s action was a search within the meaning of the State and Federal Constitutions. We hold that the search did not require a warrant, but that on the facts of this case it was unreasonable.

I

Petitioner became a state employee in 1980, and in 1989 was appointed as Director of Staff and Organizational Development of the State Department of Labor. In 2008, the Department began an investigation relating to petitioner’s alleged unauthorized absences from duty and the falsification of records to conceal those absences. That investigation led to a disciplinary proceeding that resulted in a two-month suspension; it also led to a second investigation, because, after petitioner eluded an investigator who was following his car, the Department referred petitioner’s conduct to the Office of the State Inspector General. The Inspector General’s investigation resulted in a second disciplinary proceeding, the one now before us.

As far as the record shows, the first step in the Inspector General’s investigation was to attach a GPS device to petitioner’s car, without petitioner’s knowledge, while the car was parked in a lot near the Department of Labor offices. This device and two later replacements recorded all of the car’s movements for a month, including evenings, weekends and several days when petitioner was on vacation in Massachusetts. Later, the Inspector General pursued other avenues of investigation: surveillance of an apartment building petitioner was suspected of visiting during working hours, subpoenas for E-ZPass records and interviews of petitioner and his secretary.

After receiving the Inspector General’s report, the Department brought new charges against petitioner, of which 11 were sustained by a Hearing Officer. Four of those 11 charges were dependent on evidence obtained from the GPS device. As to three charges, the GPS information showed that petitioner’s times of arrival at and departure from his office were inconsistent with the number of hours he claimed, on time records he submitted, to have worked. A fourth charge was based on petitioner’s approval of time records showing his secretary was working during hours when the GPS information showed that he was visiting her home. Four other charges were supported by GPS evidence and other evidence as well; they related to the time when petitioner claimed that he and his secretary returned home from a business trip to Syracuse. Both GPS information and E-ZPass records showed they had returned in the middle of the workday, not at the end of it as documents submitted or approved by petitioner had said. The GPS information was irrelevant to the remaining three sustained charges.

The Commissioner of Labor affirmed the Hearing Officer’s determination, and terminated petitioner’s employment. Petitioner brought this CPLR article 78 proceeding to challenge that ruling. On transfer from Supreme Court, the Appellate Division, with two Justices dissenting, confirmed the Commissioner’s determination and dismissed the petition (Matter of Cunningham v New York State Dept. of Labor, 89 AD3d 1347 [3d Dept 2011]). Petitioner appeals as of right, pursuant to CPLR 5601 (a) and (b) (1), and we now reverse the Appellate Division’s judgment.

II

We decided in Weaver, and the Supreme Court decided in Jones, that the attachment by law enforcement officers of a GPS device to the automobile of a criminal suspect, and the use of that device to track the suspect’s movements, was a search subject to constitutional limitations. Weaver and Jones establish that what happened in this case was a search also, within the meaning of article I, § 12 of the New York Constitution and the Fourth Amendment; the State does not contend otherwise. But neither Weaver nor Jones presented the question of when, if ever, a GPS search is permissible in the absence of a search warrant (see Weaver, 12 NY3d at 444-445 [the search “comes within no exception to the warrant requirement, and the People do not contend otherwise”]; Jones, 565 US at —, 132 S Ct at 954 [holding the argument that the search without a warrant was “reasonable—and thus lawful” to be forfeited]). Here, the State argues, and we agree, that this search is within the “workplace” exception to the warrant requirement recognized in O’Connor v Ortega (480 US 709 [1987]) and Matter of Caruso v Ward (72 NY2d 432 [1988]).

O’Connor involved the warrantless search by a public employer of the office of an employee suspected of misconduct. The Supreme Court upheld the search. The plurality opinion explained:

“In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable” (480 US at 722; see also id. at 732 [Scalia, J., concurring] [warrantless searches “to investigate violations of workplace rules” do not violate the Fourth Amendment]).

In Caruso, we made clear that we would follow O’Connor in deciding the constitutionality of searches conducted by public employers, whether for “noninvestigatory, work-related purposes” or for “investigations of work-related misconduct,” under the New York as well as the Federal Constitution (72 NY2d at 437 [internal quotation marks omitted]). Caruso applied O’Connor to uphold random urinalysis testing of certain police officers. (See also Matter of Seelig v Koehler, 76 NY2d 87 [1990] [upholding urinalysis testing of uniformed correction officers]; Matter of Delaraba v Nassau County Police Dept., 83 NY2d 367 [1994] [upholding urinalysis testing of police officers].)

Petitioner here does not challenge the existence of a workplace exception to the warrant requirement, but argues that it is inapplicable because the object of the search in this case was petitioner’s personal car. Petitioner asks us to confine the exception to “the workplace itself, or . . . workplace-issued property that can be seen as an extension of the workplace” (brief of petitioner-appellant at 13). We reject the suggestion, at least insofar as it would require a public employer to get a warrant for a search designed to find out the location of the automobile an employee is using when that employee is, or claims to be, working for the employer.

The O’Connor plurality observed that such items as a personal photograph on an employee’s desk, or a personal letter posted on an employee bulletin board, are part of the workplace (480 US at 716). The location of a personal car used by the employee during working hours does not seem to us more private. Petitioner was required to report his arrival and departure times to his employer; this surely diminished any expectation he might have had that the location of his car during the hours he claimed to be at work was no one’s concern but his. We are unpersuaded by the suggestion in the concurring opinion that, on our reasoning, a GPS device could, without a warrant, be attached to an employee’s shoe or purse (concurring op at 527). People have a greater expectation of privacy in the location of their bodies, and the clothing and accessories that accompany their bodies, than in the location of their cars.

The reasons that led the O’Connor Court to dispense with the warrant requirement—the serious disruption that such a requirement would entail, and the burden it would impose on supervisors who “are hardly in the business of investigating the violation of criminal laws” (480 US at 722 [plurality op]; see also id. at 732 [Scalia, J., concurring])—apply no less to an investigation of the kind at issue here than to the investigations in O’Connor and in Ontario v Quon (560 US 746 [2010]), which involved a scrutiny of text messages on an employer-issued pager. We thus conclude that when an employee chooses to use his car during the business day, GPS tracking of the car may be considered a workplace search.

The Inspector General did not violate the State or Federal Constitution by failing to seek a warrant before attaching a GPS device to petitioner’s car.

III

While the search did not require a warrant, it did not comply with either the State or Federal Constitution unless it was a reasonable search. We conclude that the State has failed to demonstrate that this search was reasonable.

The O’Connor plurality, quoting from Terry v Ohio (392 US 1, 20 [1968]) and New Jersey v T. L. O. (469 US 325, 341-342 [1985]), summarized the approach of courts to the question of reasonableness in this way:

“Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether the action was justified at its inception; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place ....
“The search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the misconduct” (480 US at 726 [citations, internal quotation marks, ellipses and brackets omitted]).

Under O’Connor, a workplace search based on a reasonable suspicion of employee misconduct is “justified at its inception” (480 US at 726 [plurality op]; id. at 732 [Scalia, J., concurring]). The search in this case clearly meets that test. Petitioner’s employer had ample grounds to suspect him of submitting false time records.

We cannot find, however, that this search was reasonable in its scope. It was, in the words of the T. L. O. Court quoted in O’Connor, “excessively intrusive.” It examined much activity with which the State had no legitimate concern—i.e., it tracked petitioner on all evenings, on all weekends and on vacation. Perhaps it would be impossible, or unreasonably difficult, so to limit a GPS search of an employee’s car as to eliminate all surveillance of private activity—especially when the employee chooses to go home in the middle of the day, and to conceal this from his employer. But surely it would have been possible to stop short of seven-day, 24-hour surveillance for a full month. The State managed to remove a GPS device from petitioner’s car three times when it suited the State’s convenience to do so—twice to replace it with a new device, and a third time after the surveillance ended. Why could it not also have removed the device when, for example, petitioner was about to start his annual vacation?

It is true that none of the evidence used against petitioner in this case resulted from surveillance outside of business hours. Ordinarily, when a search has exceeded its permissible scope, the suppression of items found during the permissible portion of the search is not required (see United States v Martell, 654 F2d 1356, 1361 [9th Cir 1981] [excessive length of detention did not taint search where nothing new was learned “during the unlawful portion” of the detention]; United States v Clark, 891 F2d 501, 505 [4th Cir 1989] [same]). But we hold that rule to be inapplicable to GPS searches like the present one, in light of the extraordinary capacity of a GPS device to permit “[c]onstant, relentless tracking of anything” (Weaver, 12 NY3d at 441). Where an employer conducts a GPS search without making a reasonable effort to avoid tracking an employee outside of business hours, the search as a whole must be considered unreasonable. That conclusion concededly requires suppression of the GPS evidence here; the State has disclaimed any reliance on the balancing test that we use when deciding whether to invoke the suppression remedy in administrative proceedings (see Matter of Boyd v Constantine, 81 NY2d 189 [1993]).

The consequence of suppression in this case is not to preclude the State from disciplining petitioner. As the majority and the dissenting Justices in the Appellate Division agreed, only four of the 11 counts on which petitioner was found guilty depended on GPS evidence, and only those four charges need be dismissed. As to the others, the GPS evidence was either substantially duplicated by E-ZPass records or was wholly irrelevant. Whether the seven surviving charges warrant the same or a lesser penalty is a matter to be decided, in the first instance, by the Commissioner of Labor on remand.

Accordingly, the judgment of the Appellate Division should be reversed, with costs, charges one, two, three and six against petitioner dismissed, and the matter remitted to the Appellate Division with directions to remand to the Commissioner of Labor for redetermination of the penalty.

Abdus-Salaam, J. (concurring).

The majority’s application of the workplace exception to the warrant requirement may be a well-intentioned effort to smooth the way for government employers to investigate time theft and other workplace misconduct. However, the majority’s decision has expanded this exception well beyond its intended scope, and has run afoul of the protections afforded by New York Constitution, article I, § 12 and the Fourth Amendment by infringing on a government employee’s “reasonable expectation of privacy” (Katz v United States, 389 US 347, 360 [1967, Harlan, J., concurring]).

I would hold that the State cannot, without a warrant, place a GPS on a personal, private car to investigate workplace misconduct. Accordingly, the warrantless search in this case was unconstitutional under both the Federal and State Constitutions, and the evidence obtained by the warrantless search must be excluded from the disciplinary hearing.

We held in People v Weaver (12 NY3d 433 [2009]), and the Supreme Court held in United States v Jones (565 US —, 132 S Ct 945 [2012]), that the use of a GPS device by government law enforcers to track the movements of a vehicle is a search subject to constitutional protections. In Weaver, we explained that GPS tracking is more intrusive than simply following a car, and that GPS surveillance is not analogous to visual surveillance for the purposes of constitutional analysis (see Weaver, 12 NY3d at 441).

“GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period. The potential for a similar capture of information or ‘seeing’ by law enforcement would require, at a minimum, millions of additional police officers and cameras on every street lamp” (id. at 441).

It took “little imagination” for us to conjure the types of “indisputably private” information that would be “[d]isclosed in the data” from a GPS device planted on a person’s vehicle:

“[T]rips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity is a highly detailed profile, not simply of where we go, but by easy inference, of our associations—political, religious, amicable and amorous, to name only a few—and of the pattern of our professional and avocational pursuits” (id. at 441-442; see Jones, 565 US at —, 132 S Ct at 955 [Sotomayor, J., concurring] [citing Weaver for the proposition that “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about (his or) her familial, political, professional, religious, and sexual associations”]).

Recognizing that, “[w]ithout judicial oversight, the use of [GPS] devices presents a significant and, to our minds, unacceptable risk of abuse” (Weaver, 12 NY3d at 447), we held that “[u]nder our State Constitution . . . the installation and use of a GPS device to monitor an individual’s whereabouts requires a warrant supported by probable cause” (id.).

The privacy and constitutional concerns recognized in Weaver and Jones apply equally in this case. GPS is a “sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability” (Weaver, 12 NY3d at 441). Surely, a government employer’s interest in determining whether its employees are falsifying time records is just as important as the State’s interest in protecting the public from dangerous criminals. Yet, the majority, ignoring our concerns in Weaver, would permit government employers who suspect employees of misconduct to use GPS devices, without first obtaining a warrant, to track and monitor those employees’ precise whereabouts during business hours. As we noted in Weaver, it is not difficult to imagine the inherently personal and private information such surveillance will yield, even if limited to working hours. While government employers need to know whether their employees actually worked during the hours for which they were paid, public employees are entitled to at least some expectation of privacy concerning their movements throughout the workday. A search as intrusive as GPS surveillance, which, as this case demonstrates, is highly susceptible to abuse without judicial oversight, requires a warrant.

Investigating workplace misconduct is indisputably an important responsibility of a government employer. As the Supreme Court stated in O’Connor v Ortega (480 US 709 [1987]):

“Public employers have an interest in ensuring that their agencies operate in an effective and efficient manner, and the work of these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other work-related misfeasance of its employees” (480 US at 724).

O’Connor involved the warrantless search of a government employee’s office and seizure of personal items from his desk and file cabinet (see id. at 713). The Supreme Court applied “the standard of reasonableness under all the circumstances” (id. at 725-726) rather than a probable cause standard, and upheld the search. Importantly, in analyzing the Fourth Amendment restraints upon a workplace search, the Court stated that it was “essential first to delineate the boundaries of the workplace context” (id. at 715 [emphasis added]).

“The workplace includes those areas and items that are related to work and are generally within the employer’s control. At a hospital, for example, the hallways, cafeteria, offices, desks, and file cabinets, among other areas, are all part of the workplace.
These areas remain part of the workplace context even if the employee has placed personal items in them, such as a photograph placed in a desk or a letter posted on an employee bulletin board” (id. at 715-716).

Other courts interpreting O’Connor have limited application of the workplace exception to the workplace itself. The Ninth Circuit held that the “workplace warrant exception” did not apply where, although the search arose in the context of a workplace investigation, it was carried out in the home (Delia v City of Rialto, 621 F3d 1069, 1076 n 4 [9th Cir 2010], revd on other grounds sub nom. Filarsky v Delia, 566 US —, 132 S Ct 1657 [2012]). In a case involving the United States Postal Service’s attempt to gain access to its employee’s medical records in connection with an investigation into potential criminal misconduct and liability for health benefits and workers’ compensation, the District Court of the Southern District of New York rejected the Postal Service’s argument that, based on O’Connor, a reasonableness standard applied and a search warrant was not required. The court held:

“O’Connor applied solely to searches of the workplace. The Supreme Court defined the workplace as ‘those areas and items that are related to work and are generally within the employer’s control.’ Although the term, ‘work-relatedV was used by the O’Connor Court, neither O’Connor nor the cases considered by the Court in reaching its holding involved any area physically outside of the workplace” (National Assn. of Letter Carriers, AFL-CIO v United States Postal Serv., 604 F Supp 2d 665, 675-676 [SD NY 2009] [emphasis added and citation omitted]).

The majority’s decision extends “the boundaries of the workplace” (O’Connor, 480 US at 715) far beyond the parameters delineated by the O’Connor Court. This case involves the search of an employee’s personal car, not his office, desk, file cabinets (see id. at 715-716), or any other area physically inside the workplace. I reject the notion that government employees who use their cars for travel to and from work and work-related obligations place those cars within the ambit of their “employer^’] control” such that they could be subjected to a warrant-less search (id. at 715). A personal car is also not akin to a letter posted on a bulletin board, a photograph displayed on a desk, or other personal items an employee may bring within the “areas” traditionally understood as “part of the workplace context” (id. at 716).

The potential dangers of the majority’s decision are evident when one considers a government employee, suspected of falsifying time records, who does not drive a car during the workday, but instead leaves the office on foot or takes public transit. There is now little to prevent a government employer from placing a GPS device on that person’s bag, briefcase, shoe, cell phone, watch, or purse—anything that is used during the workday (like petitioner’s car)—to determine whether, based on the tracking data transmitted by that device, the employee is located where he or she purports to be. The majority’s statement that people have a greater expectation of privacy in the location of their bodies than in the location of their cars (see majority op at 521) avoids addressing the point that petitioner’s employer was using electronic surveillance to track petitioner’s location; tracking his personal car was only a means to that end. The location of petitioner’s car was relevant only insofar as it indicated petitioner’s whereabouts. It all comes down to electronically tracking the movements of the employee, which could be accomplished by tracking the employee’s personal car (as in this case) or any other personal property that the employee “chooses to use . . . during the business day” (majority op at 521).

I also disagree with the majority’s suggestion that the concerns that “led the O’Connor Court to dispense with the warrant requirement” are present here (see majority op at 521). There would be no serious disruption to the “routine conduct of business” by requiring a government employer to obtain a warrant to search an employee’s personal car (O’Connor, 480 US at 722). And mandating that government employers navigate “unwieldy warrant procedures” hardly seems “unreasonable” (id.) given the bevy of personal information they will likely uncover from a GPS search tracking an employee’s personal car. Ultimately, the alleged burden imposed upon government employers by requiring a warrant for the search of a personal car should have little bearing on the question of whether they are constitutionally required to obtain one before conducting the search.

Critical here is that the warrantless search was of petitioner’s personal car, and not employer-issued property (see Ontario v Quon, 560 US 746, —, 130 S Ct 2619, 2624 [2010] [applying the O’Connor workplace exception to the warrantless search of text messages sent and received on a pager “the employer owned and issued to an employee”]; Leventhal v Knapek, 266 F3d 64, 75-76 [2d Cir 2001] [applying workplace exception to search of office computer]; Matter of Moore v Constantine, 191 AD2d 769, 771 [3d Dept 1993] [upholding warrantless search of a police locker]). Ownership allows the government employer some level of control over its property, and may diminish the expectation of privacy employees enjoy in that property (see Quon, 560 US at —, 130 S Ct at 2629). Indeed, this may have been a different case if the vehicle searched was owned by and had been issued to petitioner by the State (see Demaine v Samuels, 29 Fed Appx 671, 675 [2d Cir 2002] [workplace exception applied to search of employer-issued car]). But that is not what occurred here: instead, the State searched petitioner’s personal car that he and his family used on a daily basis. No New York court has ever permitted government employers to search employees’ personal cars without a warrant, and the majority creates a dangerous precedent by allowing them to do so now.

The ramifications of the majority’s decision will extend far beyond this case. All government employees, at all levels, in all three branches of government, may now be subject to electronic surveillance based upon a mere “reasonableness” standard, without any judicial oversight at the inception of the search. Given the majority’s imprimatur of warrantless GPS tracking, less intrusive methods for investigating government employees will almost certainly be replaced with electronic surveillance. The potential for abuse that we recognized in Weaver is now closer to becoming a reality.

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

Judgment reversed, with costs, and matter remitted to the Appellate Division, Third Department, with directions to remand to the Commissioner of Labor for further proceedings in accordance with the opinion herein.


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [997 NE2d 1223, 975 NYS2d 371]
    Manuel De La Cruz et al., Appellants, v Caddell Dry Dock & Repair Co., Inc., et al., Respondents.
    Argued May 30, 2013;
    decided June 27, 2013

      POINTS OF COUNSEL

      Virginia & Ambinder, LLP, New York City (James Emmet Murphy and Lloyd R. Ambinder of counsel), for appellants.
    I. The work performed by plaintiffs-appellants constituted “public work.” (Matter of New York Charter School Assn. v Smith, 15 NY3d 403; Matter of Miele v Joseph, 305 NY 667; Matter of Golden v Joseph, 307 NY 62; Title Guaranty & Trust Co. of Scranton v Crane Co., 219 US 24; Ellis v United States, 206 US 246; United States for Use & Benefit of Owens v Olympic Mar. Servs., Inc., 827 F Supp 1232; Jewett v Commonwealth Bond Corp., 241 App Div 131; Anheuser-Busch, Inc. v Abrams, 71 NY2d 327; All Seasons Resorts v Abrams, 68 NY2d 81; Matter of Fink v Lefkowitz, 47 NY2d 567.) II. The Appellate Division’s holding misconstrues the definition of the term “construction.” (Matter of Gaston v Taylor, 274 NY 359; Matter of Sewer Envtl. Contrs. v Goldin, 98 AD2d 606; Brukhman v Giuliani, 94 NY2d 387; Matter of Erie County Indus. Dev. Agency v Roberts, 94 AD2d 532, 63 NY2d 810; Title Guaranty & Trust Co. of Scranton v Crane Co., 219 US 24; Matter of Twin State CCS Corp. v Roberts, 125 AD2d 18, 72 NY2d 897; Miele v Joseph, 280 App Div 408, 305 NY 667; Aguilar v Henry Mar. Serv., Inc., 12 AD3d 542; Caddy v Interborough R.T. Co., 195 NY 415; Lee v Astoria Generating Co., L.P., 13 NY3d 382.) III. The Appellate Division misinterpreted this Court’s holding in Brukhman v Giuliani (94 NY2d 387 [2000]). (United States v City of New York, 359 F3d 83; Stone v McGowan, 308 F Supp 2d 79; Matter of Carver v State of New York, 87 AD3d 25; Matter of Onondaga-Cortland-Madison Bd. of Coop. Educ. Servs. v McGowan, 285 AD2d 36; Matter of Pansini Stone Setting Inc. v Crow & Sutton Assoc. Inc., 20 AD3d 481; Matter of Lantry v State of New York, 6 NY3d 49; Bucci v Village of Port Chester, 22 NY2d 195; Matter of Gaston v Taylor, 274 NY 359; Austin v City of New York, 258 NY 113; Varsity Tr. v Saporita, 71 AD2d 643, 48 NY2d 767.)

      Blank Rome LLP, New York City (Richard V. Singleton II and Anthony A. Mingione of counsel), and Frank & Associates, P.C., Farmingdale (Peter A. Romero of counsel), for respondents.
    I. The Appellate Division correctly concluded that the Prevailing Wage Act did not apply because the work performed under the Caddell contracts was not “public work.” (People v Crane, 214 NY 154; Brukhman v Giuliani, 94 NY2d 387; Bucci v Village of Port Chester, 22 NY2d 195; Matter of Erie County Indus. Dev. Agency v Roberts, 94 AD2d 532, 63 NY2d 810; Caddy v Interborough R.T. Co., 195 NY 415; Aguilar v Henry Mar. Serv., Inc., 12 AD3d 542; Madden v Hughes, 104 App Div 101; Flannigan v Ryan, 89 App Div 624; Chaffee v Union Dry Dock Co., 68 App Div 578; Brian Hoxie’s Painting Co. v Cato-Meridian Cent. School Dist., 76 NY2d 207.) II. New York’s Constitution and the Prevailing Wage Act should be interpreted in accordance with their legislative history and New York law—not in accordance with federal law. (Brukhman v Giuliani, 94 NY2d 387; Varsity Tr. v Saporita, 71 AD2d 643; Anheuser-Busch, Inc. v Abrams, 71 NY2d 327; State of New York v Mobil Oil Corp., 38 NY2d 460; All Seasons Resorts v Abrams, 68 NY2d 81; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Marx v Bragalini, 6 NY2d 322; Title Guaranty & Trust Co. of Scranton v Crane Co., 219 US 24; Building & Constr. Trades Dept. AFL-CIO v United States Dept. of Labor Wage Appeals Bd., 932 F2d 985; Safari Circuits, Inc. v Chicago School Reform Bd. of Trustees, 474 F Supp 2d 993.)
   OPINION OF THE COURT

Pigott, J.

We hold that a municipal vessel is a public work within the meaning of Labor Law § 220 and article I, § 17 of the State Constitution—so that workers involved in its construction, maintenance or repair must be paid prevailing wages—if the vessel’s primary objective is to benefit the general public.

I

Plaintiffs were employed by defendant Caddell Dry Dock & Repair Co., Inc. (Caddell), which operates six floating dry docks on Staten Island, where workers repair, refurbish and maintain vessels for various tug and barge companies, and for the City of New York. The vessels serviced there have included the Staten Island Ferry vessels, New York City fireboats, and New York City Department of Sanitation garbage barges. In September 2002, plaintiffs, as third-party beneficiaries of contracts between Caddell and New York City agencies, began this action against Caddell and its sureties, seeking enforcement of contractual provisions requiring the payment of the prevailing rate of wages and supplemental benefits. Plaintiffs, relying on Labor Law § 220 and article I, § 17 of the New York State Constitution, contend that the vessels they labored on were “public works” within the meaning of those laws. They sued individually and on behalf of a putative class of approximately 750 Cad-dell employees who repaired and maintained New York City vessels under contracts between Caddell and city agencies.

Following discovery, defendants moved for summary judgment dismissing the complaint on the ground that no “public work” was involved. Plaintiffs cross-moved for partial summary judgment as to liability. Supreme Court denied plaintiffs’ cross motion and granted defendants’ motion, dismissing the complaint. The Appellate Division affirmed, holding that it was “constrained” by our decision in Brukhman v Giuliani (94 NY2d 387 [2000]) to find that the city vessels in question were not “public works” within the meaning of Labor Law § 220 (95 AD3d 297, 298 [1st Dept 2012]). We granted plaintiffs leave to appeal, and now reverse.

II

Pursuant to Labor Law § 220, contractors engaged in public projects must pay their workers wages and supplemental benefits that “shall be not less than the prevailing rate for a day’s work in the same trade or occupation in the locality within the state where such public work . . . is to be situated, erected or used” (Labor Law § 220 [3] [a]). The substance of the statutory requirement dates to the 1890s. The State Constitution was amended in 1905 to authorize such prevailing wage legislation, and the law was preserved as a constitutional requirement in its present form in the 1938 State Constitution (see 3 Rev Rec, 1938 NY Constitutional Convention at 2201; see generally Matter of Cayuga-Onondaga Counties Bd. of Coop. Educ. Servs. v Sweeney, 89 NY2d 395, 401 [1996]). Under article I, § 17 of the State Constitution,

“[n]o laborer, worker or mechanic, in the employ of a contractor or sub-contractor engaged in the performance of any public work, . . . shall ... be paid less than the rate of wages prevailing in the same trade or occupation in the locality within the state where such public work is to be situated, erected or used.”

In the past, we adopted a two-prong test to determine whether a particular project is bound by the constitutional prevailing wage rate requirement, namely the standard set out in Matter of Erie County Indus. Dev. Agency v Roberts (94 AD2d 532 [4th Dept 1983], affd for reasons stated below 63 NY2d 810 [1984]). “(1) [T]he public agency must be a party to a contract involving the employment of laborers, workmen, or mechanics, and (2) the contract must concern a public works project” (Matter of New York Charter School Assn. v Smith, 15 NY3d 403, 413 [2010], quoting Erie County Indus. Dev. Agency, 94 AD2d at 537). In the present case, the second prong of the Erie County test is at issue; the question is whether a “public work” must be a structure attached to land. In the absence of direct and specific evidence of the legislative intent regarding the term, a proper analysis may be informed by three sources: first and most importantly, the language of the statute and constitutional provision itself; second, precedent; and third, dictionary definition.

III

The term “public work” is used in two, distinct ways: first, to denote a public undertaking or endeavor performed by workers, and second, to refer to the physical product of such work. It is the second meaning of the term that is relevant here.

Labor Law § 220 and the constitutional provision have some common language: a laborer, worker, or mechanic, employed by a contractor or subcontractor upon a public work, shall not be paid less than the rate of wages prevailing “in the same trade or occupation in the locality within the state where such public work is to be situated, erected or used” (NY Const, art I, § 17 [emphasis added]; see also Labor Law § 220 [3] [a]; L 1899, ch 567, § 1). It is clear from the words “situated, erected or used” that the term “public works” was intended to extend beyond structures that are erected, and also include at least some things for which the participles “situated” or “used” are more fitting. While a vessel would not be described as being “erected,” it would be appropriate to describe it as being “situated” or “used.” The language of the statute and constitutional provision, therefore, supports the interpretation advanced by the plaintiffs in this case, as has the practical view taken by federal authorities that have considered the term, in the corresponding federal wage law (see 40 USC § 3142 [Davis-Bacon Act]; 38 US Atty Gen 418 [1936] [interpreting Davis-Bacon Act (former 40 USC § 276a)]) and in other similar contexts (see Title Guaranty & Trust Co. of Scranton v Crane Co., 219 US 24, 33 [1910]; see also e.g. United States for Use & Benefit of Owens v Olympic Mar. Servs., Inc., 827 F Supp 1232, 1233-1234 [ED Va 1993]). In the words of Justice Holmes, “[w]hether a work is public or not does not depend upon its being attached to the soil” (Title Guaranty & Trust Co., 219 US at 33).

IV

Our case law makes clear that Labor Law § 220 “is an attempt by the State to hold its territorial subdivisions to a standard of social justice in their dealings with laborers, workmen and mechanics. It is to be interpreted with the degree of liberality essential to the attainment of the end in view” (Austin v City of New York, 258 NY 113, 117 [1932]). In Matter of Gaston v Taylor (274 NY 359 [1937]), we held that workers may be “employed upon ‘public works’ within the meaning of the statute” even when “their work relates to repairing and maintaining public works rather than constructing them” (274 NY at 363). However, the work must be “construction-like labor” in order to qualify (Matter of Twin State CCS Corp. v Roberts, 72 NY2d 897, 899 [1988]). The prevailing wage requirement “applies only to workers involved in the construction, replacement, maintenance [or] repair of ‘public works’ ” (Brukhman, 94 NY2d at 396, quoting Varsity Tr. v Saporita, 71 AD2d 643, 644 [2d Dept 1979], affd 48 NY2d 767 [1979]). Finally, “[t]o be a public work the project’s primary objective must be to benefit the public” (Matter of 60 Mkt. St. Assoc. v Hartnett, 153 AD2d 205, 207 [3d Dept 1990], affd for reasons stated below 76 NY2d 993 [1990]; see also e.g. Matter of Hart v Holtzman, 215 AD2d 175, 176 [1st Dept 1995]; Matter of Vulcan Affordable Hous. Corp. v Hartnett, 151 AD2d 84, 86-87 [3d Dept 1989]; Matter of Miele v Joseph, 280 App Div 408, 409-410 [1952], affd 305 NY 667 [1953]).

Here, the Appellate Division believed itself to be bound by Brukhman v Giuliani. That case presented the “question whether the prevailing wage provision of the New York State Constitution (art I, § 17) applies to public assistance beneficiaries who are statutorily required to participate in a Work Experience Program ... as a condition of continued receipt of monetary grants” from the New York City Department of Social Services (Brukhman, 94 NY2d at 390). Recipients, who were assigned to work at not-for-profit organizations and New York City agencies, challenged a method of calculation of the required hours of participation, whereby the amount of benefits received was divided by the federal minimum wage. Recipients wanted the calculations to be based on the applicable prevailing wage rate under New York law, which was a higher rate, thus generating a lower number of hours they would have to work. The work in question “ranged from skilled electrical and painting work to office clerical functions” (id. at 391).

We held that the recipients were not entitled to the requested prevailing wage calculations for two principal reasons. They were not “in the employ of’ anyone within the meaning of the constitutional provision (id. at 395-396). Additionally, “a department of a municipality—even though it may enter into agreements with the municipality to provide Program positions— does not qualify as a ‘contractor or subcontractor’ within the meaning of the constitutional provision” and “the other entities cooperating with the Work Experience referrals do not fall within the classification of construction and organized labor-related contractors” (id. at 395). Although at one point we stated that “plaintiffs were not engaged in ‘public work’ within the envisioned scope of that constitutional term of art” (id. at 393), we noted that “since plaintiffs do not meet the other requisites of this constitutional entitlement, we need not parse these facial claims to determine whether some might be deemed to squeeze into the ‘public work’ column” (id. at 396). To the extent we decided the issue, our holding was that the recipients were not employed upon “public works” simply because they were assigned to work at a city agency or an entity cooperating with a city program; they would have to show that they were involved in “construction, replacement, maintenance [or] repair” (id. at 396)—a factor that is not disputed in the present case. In short, Brukhman is not instructive on the issue of whether a vessel is a “public work” and the Appellate Division erred in considering the case dispositive. Far more instructive is the above-cited case law holding that the primary purpose or objective of a project must be public in order for it to be a public work.

V

The current edition of Black’s Law Dictionary defines “public works” as “[structures (such as roads or dams) built by the government for public use and paid for by public funds” (Black’s Law Dictionary 1746 [9th ed 2009]). More pertinently, given the nineteenth-century origin of the law we are concerned with, the first edition of Black’s Law Dictionary defined “public works” as “[w]orks, whether of construction or adaptation, undertaken and carried out by the national, state, or municipal authorities, and designed to subserve some purpose of public necessity, use, or convenience; such as public buildings, roads, aqueducts, parks, etc.” (Black’s Law Dictionary 964 [1st ed 1891]; see also Black’s Law Dictionary 1231 [2d ed 1910] [same]).

Similarly broad definitions of “public works” are found in other dictionaries—“works such as roads, railways, bridges, etc. constructed for public use or service at public cost” (Webster’s New Twentieth Century Dictionary of the English Language Unabridged 1368 [25th ed 1950]); “works (as schools, highways, docks) constructed for public use or enjoyment especially] when financed and owned by the government” (Merriam-Webster’s Collegiate Dictionary 1006 [11th ed 2003]); or “construction or engineering operations carried out by or for the State or local government on behalf of the community” (The Oxford English Dictionary Third Edition [published on OED Online while in progress], available at http://www.oed.com).

Two central aspects of the meaning of “public works” may be discerned from the dictionaries—public works are works paid for by public funds and made for public use or other benefit. Although the illustrative examples given in dictionary entries are frequently fixed structures, it is clear that the notion that a “public work” must be attached to the land is not part of its central meaning.

VI

We therefore conclude that a three-prong test should be applied to determine whether a particular project is subject to the prevailing wage requirements of Labor Law § 220 and article I, § 17 of the State Constitution. First, a public agency must be a party to a contract involving the employment of laborers, workers, or mechanics. Second, the contract must concern a project that primarily involves construction-like labor and is paid for by public funds. Third, the primary objective or function of the work product must be the use or other benefit of the general public.

We recognize that this test will have to be applied on a case-by-case basis in order for its contours to be fully explored. Our holding is consistent, however, with Appellate Division cases ruling that a work is not public when—although “it serves a public function” such as “the rehabilitation of neighborhoods” (Vulcan Affordable Hous. Corp., 151 AD2d at 87) and is paid for in large part by public funds—its objective is private residence (see id.), or it “is used for a specific and narrowly defined group” of private citizens (Cattaraugus Community Action v Hartnett, 166 AD2d 891, 891 [4th Dept 1990]).

As to the facts underlying this appeal, the application of the law is straightforward. Plaintiffs worked on such vessels as the Staten Island Ferry boats, city fireboats, and municipal garbage barges. A ferry boat is, of course, made for the use of the general public, as is a bus or train. While we recognize that a fireboat, tug or barge is not made to be used by the public, there is no doubt that its function is to serve the general public. For example, a New York City fireboat is used by firefighters for the benefit of the entire City’s public. There is no justification for making fine distinctions between vessels according to whether or not members of the public have access to them. We have not differentiated buildings used by public employees according to whether there is public access (see Twin State CCS Corp., 72 NY2d at 899). The dispositive question is whether their primary function is to serve the general public.

Accordingly, the order of the Appellate Division should be reversed, with costs, and plaintiffs’ motion for partial summary judgment on the issue of liability granted.

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

Order reversed, with costs, and plaintiffs’ motion for partial summary judgment on the issue of liability granted.

      . On appeal from an order dismissing plaintiffs’ claims, the Appellate Division reinstated two of plaintiffs’ claims, breach of contract against Caddell and joint and several liability against the sureties (see 22 AD3d 404 [1st Dept 2005]). Upon remittal to Supreme Court, the action was certified as a class action.

      . The particular language quoted from section 220 was contained in L 1899, ch 567, § 1. As Judge Cardozo wrote,
      “[t]he public policy of the State declared by successive Legislatures during a period of thirty years (L. 1897, ch. 415; L. 1899, ch. 567; L. 1900, ch. 298; L. 1906, ch. 506; L. 1909, ch. 292; L. 1913, ch. 494; L. 1916, ch. 152; L. 1921, ch. 642) exacts the payment of the rate of wages prevailing in the vicinage to laborers and mechanics employed upon the public works” (Campbell v City of New York, 244 NY 317, 324 [1927]; see also L 1894, ch 622).

      . For example, in NY Constitution, article I, § 17, the term is used initially in the first sense (“in the performance of any public work”) and then in the second sense (“where such public work is to be situated, erected or used”).

      . It is true that for a time Black’s Law Dictionary included, as a second, alternative definition, the words “[a]ll fixed works constructed for public use” (see Black’s Law Dictionary 1856 [3d ed 1933], citing State v A.H. Read Co., 33 Wyo 387, 399, 240 P 208, 211 [Wyo 1925]; Black’s Law Dictionary 1781 [4th ed 1951]; Black’s Law Dictionary 1440 [5th ed 1979]; Black’s Law Dictionary 1606 [6th ed 1990]). This alternative definition was removed for the publication of the seventh edition (see Black’s Law Dictionary 1601 [7th ed 1999]).

      . Merriam-Webster’s Third New International Dictionary favors a narrower definition (see Webster’s Third New International Dictionary of the English Language Unabridged 1836 [2002]) incorporating the word “fixed.”


author: Rivera, J.

text:
    [997 NE2d 133, 974 NYS2d 308]
    Marguerite James, Appellant, v David Wormuth, M.D., et al., Respondents.
    Argued May 28, 2013;
    decided June 27, 2013

      POINTS OF COUNSEL

      Woodruff L. Carroll, Syracuse, for appellant.
    I. A jury could infer without an expert that the wire would not have been left in the patient absent negligence. (Rockefeller v Moront, 81 NY2d 560; Kambat v St. Francis Hosp., 89 NY2d 489; States v Lourdes Hosp., 100 NY2d 208; Critelli v Long Is. Jewish-Hillside Med. Ctr., 115 AD2d 632; Gravitt v Newman, 114 AD2d 1000; Connors v University Assoc. in Obstetrics & Gynecology, Inc., 4 F3d 123.) II. The case is simple enough for a jury to understand without an expert. (States v Lourdes Hosp., 100 NY2d 208; Kambat v St. Francis Hosp., 89 NY2d 489; Rockefeller v Moront, 81 NY2d 560.) III. No expert is needed because the medical judgment defense is not compatible with res ipsa loquitur. (Rockefeller v Moront, 81 NY2d 560; Nestorowich v Ricotta, 97 NY2d 393.) IV No expert is needed because the medical judgment charge does not apply to the physician deciding which of two foreseeable evils that resulted from his negligence is the lesser evil. V No expert is needed because there is no limit to the facts that res ipsa loquitur can be applied to. (Kambat v St. Francis Hosp., 89 NY2d 489; Griffen v Manice, 166 NY 188; Condit v Baldwin, 21 NY 219; Mullen v St. John, 57 NY 567.) VI. The jury decides the importance of the state of mind and intent of defendant in deciding if there is negligence on the facts of the case. (Kambat v St. Francis Hosp., 89 NY2d 489.) VII. The state of mind of defendant and his intention are just one more piece of circumstantial evidence for the jury to consider in determining fault without an expert. (Palsgraf v Long Is. R.R. Co., 248 NY 339; Pike v Consolidated Edison Co. of N.Y., 303 NY 1.) VIII. The cases where defendant intentionally left a foreign object in the patient as part of the agreed treatment have no relevance here and no expert is needed to explain this. (States v Lourdes Hosp., 100 NY2d 208; Rockefeller v Moront, 81 NY2d 560.) IX. Prior cases of the Court of Appeals recognize a clear distinction between items left in the patient after the operation that were intended to be removed (foreign object cases) and items that were intended to be left in the patient but were not removed (fixation cases). (Rockefeller v Moront, 81 NY2d 560.) X. Plaintiff proved a case of gross negligence/willful misconduct. XI. Plaintiff used defendant physician as an expert to explain circumstances surrounding the operation. (States v Lourdes Hosp., 100 NY2d 208.) XII. The lower court erred in not sending questions of fact to the jury. XIII. There are no credibility issues in foreign object cases for an expert opinion. (Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427.) XIV The lower courts erred; as a matter of law plaintiff did not waive her claim. (Kambat v St. Francis Hosp., 89 NY2d 489.) XV The Court should affirm the dissent in the Appellate Division. XVI. Plaintiff is entitled to every factual inference in her favor. (Szczerbiak v Pilat, 90 NY2d 553.) XVII. Plaintiff proved res ipsa loquitur. (Kambat v St. Francis Hosp., 89 NY2d 489; Ebanks v New York City Tr. Auth., 70 NY2d 621.) XVIII. The operation was under the control of defendant. XIX. Plaintiff was anaesthetized while the wire was lost and could not be contributorily negligent. XX. Defendant owes a duty to plaintiff as a physician to a patient.

      Martin, Ganotis, Brown, Mould & Currie, P.C., DeWitt (Mark L. Dunn and Daniel P. Laraby of counsel), for respondents.
    The Appellate Division properly affirmed the trial court’s judgment dismissing plaintiffs complaint as she failed to establish a prima facie case of medical malpractice based on res ipsa loquitur, where her sole claim challenged Dr. Wormuth’s judgment to leave a piece of guide wire which had dislodged from the lung and become embedded in chest muscle tissue, rather than subject her to a more intrusive procedure with attendant surgical risks to try and locate and remove the wire. (Dermatossian v New York City Tr. Auth., 67 NY2d 219; Kambat v St. Francis Hosp., 89 NY2d 489; Rockefeller v Moront, 81 NY2d 560; Rodriguez v Manhattan Med. Group, 77 NY2d 217; Castro v New York City Health & Hosps. Corp., 74 AD3d 1005; Lidge v Niagara Falls Mem. Med. Ctr., 17 AD3d 1033.)
   OPINION OF THE COURT

Rivera, J.

Plaintiff Marguerite James commenced this medical malpractice action against defendants Dr. David Wormuth and his practice, CNY Thoracic Surgery, EC., after he failed to remove a localization guide wire during a biopsy of an area on plaintiffs lung. On this appeal from the Appellate Division order affirming the dismissal of her amended complaint, we affirm.

In October 2004, a guide wire inserted into the plaintiff to assist with a biopsy of an area in her lung dislodged. Defendant Dr. Wormuth proceeded with the biopsy, but was unable to locate the dislodged wire. After an unsuccessful 20-minute manual search for the wire, defendant determined that it was better for the plaintiff to leave the wire and end the surgical procedure, rather than to extend the amount of time she was in surgery for him to continue searching for the wire. Defendant informed plaintiff after the surgery that he could not find the wire, and that he had determined that it was better to leave it rather than continue the search procedure.

Plaintiff subsequently returned to defendant complaining of pain she attributed to the lodged wire, and which she said was so significant that it disrupted her ability to work. Approximately two months after the first procedure, defendant performed a second operation. In that procedure, he successfully located and removed the wire with the use of a special X-ray machine known as a C-arm.

Plaintiff then commenced this medical malpractice action. Plaintiff’s evidence at trial consisted of her testimony about, among other things, her discussion with Dr. Wormuth after the procedure, the postoperative pain and its impact on her ability to work, as well as the testimony of two of her clients as to the apparent disruption to her work caused by the pain, and Dr. Wormuth’s testimony describing the procedure and his decision to leave the wire inside the plaintiff. Plaintiff also introduced several medical records relating to both procedures, including Dr. Wormuth’s file, operation reports, a surgical pathology report, and an X-ray report produced during the period between the two procedures.

At the close of plaintiffs case, defendants moved to dismiss for failure to establish a prima facie case of medical malpractice. Defendants argued that plaintiff failed to show a deviation from accepted standards of medical practice, and also that such deviation was the proximate cause of the plaintiffs injury. Defendants pointed specifically to plaintiff’s failure to present any expert proof on the standard of practice. Anticipating plaintiffs response, defendants argued that res ipsa loquitur was inapplicable because there was no evidence of any error by Dr. Wormuth that caused the wire to become dislodged.

Plaintiff objected to the motion and argued that expert testimony was unnecessary because Dr. Wormuth admitted that he intentionally left the wire inside the plaintiff. Therefore, a jury could infer negligence given that there was no medical reason to leave the wire lodged in plaintiff, and defendant could have obtained a C-arm to locate and remove it. Plaintiff asserted that res ipsa loquitur necessarily applied because the wire was a foreign object that could only have been left in the plaintiff as a result of the doctor’s negligence.

During argument on the motion, and in response to the court’s specific inquiry as to the plaintiffs theory of the case, plaintiffs counsel confirmed that the case focused on defendant’s failure to remove the wire.

“[The court]: . . . Your theory here is that he committed negligence and malpractice by failing to retrieve it back on October the 28th —
“[Counsel]: Right.
“[The court]: — during the first surgery?
“[Counsel]: As it’s gone in, your Honor, that is the case. If I had an expert, it would have been a different one, but that’s what the case is right now.”

The court subsequently granted a directed verdict in defendants’ favor, pursuant to CPLR 4401.

The Appellate Division affirmed in a 3-2 decision (93 AD3d 1290 [4th Dept 2012]). The majority concluded that the trial court properly granted defendants’ motion, and dismissed the amended complaint based upon plaintiff’s failure to demonstrate a prima facie case of medical malpractice. The majority rejected plaintiffs contention that she had submitted sufficient proof under the doctrine of res ipsa loquitur to submit the case to the jury, given that plaintiff failed to argue or present proof that the doctor had unintentionally abandoned the wire inside plaintiff. The majority reasoned that because plaintiff relied upon defendant’s allegedly improper exercise of medical judgment, plaintiff could not rely upon the theory of res ispa loquitur. The dissent disagreed that defendant purposefully abandoned the wire, and instead attributed the unintentional loss of the wire to the doctor’s actions. The dissent concluded that, similar to plaintiffs argument in opposition to defendants’ motion for a directed verdict, res ispa loquitur properly applies given that a foreign object remained in plaintiffs body. Plaintiff appealed to this Court as of right pursuant to CPLR 5601 (a).

On appeal before this Court, plaintiff continues to press her arguments that expert testimony was unnecessary, and that res ipsa loquitur applies to this case because the fact that the wire was left in the plaintiff in and of itself establishes defendants’ liability. Plaintiff further argues that the wire should be treated as a foreign object left inside the plaintiff, and therefore negligence may be inferred.

Ordinarily, a plaintiff asserting a medical malpractice claim must demonstrate that the doctor deviated from acceptable medical practice, and that such deviation was a proximate cause of the plaintiffs injury (see Rivera v Kleinman, 16 NY3d 757, 759 [2011]; Frye v Montefiore Med. Ctr., 70 AD3d 15, 24 [1st Dept 2009]; Terranova v Finklea, 45 AD3d 572, 572 [2d Dept 2007]; Zellar v Tompkins Community Hosp., 124 AD2d 287, 288-289 [3d Dept 1986]). The theory of res ipsa loquitur is applied to occurrences “[w]here the actual or specific cause of an accident is unknown” (Kambat v St. Francis Hosp., 89 NY2d 489, 494 [1997]). Under such circumstances, “a jury may . . . infer negligence merely from the happening of an event and the defendant’s relation to it” (id. at 494; see States v Lourdes Hosp., 100 NY2d 208, 211-212 [2003]). To establish a prima facie case of negligence in support of a res ipsa loquitur charge, plaintiff must establish three elements:

“[1.] the event must be of a kind that ordinarily does not occur in the absence of someone’s negligence;
“[2.] it must be caused by an agency or instrumentality within the exclusive control of the defendant; and
“[3.] it must not have been due to any voluntary action or contribution on the part of the plaintiff” (Kambat, 89 NY2d at 494; see Prosser and Keeton, Torts § 39 at 244 [5th ed]).

Further, in the context of a medical malpractice case based upon a foreign object, “[r]es ipsa loquitur is applicable where . . . [the object] is unintentionally left in a patient following an operative procedure” (LaPietra v Clinical & Interventional Cardiology Assoc., 6 AD3d 1073, 1074 [4th Dept 2004] [emphasis added]; see Kambat, 89 NY2d 497-498).

According to the record, plaintiff constructed her case on a theory based on the doctor’s intentional choice to leave the wire inside the plaintiff, and her counsel specifically acknowledged this to the trial court. Moreover, her counsel conceded at trial that he had not submitted opinion testimony about the standard of medical care, and also acknowledged that it would be a different case if he had presented expert testimony. Plaintiff, having chosen to pursue a theory of the case which focused on defendant’s intentional choice to leave the wire in the plaintiff, rather than the initial dislodgment of the wire, was required to establish that the doctor’s judgment deviated from accepted community standards of practice, and that such deviation was a proximate cause of the plaintiffs injury (see Rivera, 16 NY3d at 759; see generally Gross v Friedman, 73 NY2d 721, 723 [1988]).

Dr. Wormuth’s testimony reveals that he claimed to have exercised his professional judgment during the biopsy procedure. The doctor testified that he decided to leave the wire inside the plaintiffs chest because, in his judgment, he believed it to be riskier to continue, noting that this would extend the period under which the plaintiff was anaesthetized, and require a larger incision in order to find and remove the wire. He further testified that in his experience patients could tolerate wires, that wires are under some circumstances left inside a patient, and he believed he could remove the wire in this case, if necessary, at a later time.

It is clear from the record that the doctor explained his decision to leave the wire in terms of his medical assessment of what was best for the patient under the circumstances. Defendant’s testimony that it was his professional judgment to leave the wire could not be assessed by the jury based on the “common knowledge of lay persons” (Lourdes Hosp., 100 NY2d at 213 [internal quotation marks and citation omitted]; see generally Meiselman v Crown Hgts. Hosp., 285 NY 389, 396 [1941]). Therefore, evidence clearly was needed, in the form of expert opinion to assist a jury’s understanding of whether this occurrence would have “take[n] place in the absence of negligence” (Lourdes Hosp., 100 NY2d at 212). Plaintiff, however, wholly failed to present any such evidence of the standards of practice, and therefore her complaint was properly dismissed.

To the extent counsel argued that res ipsa loquitur applies because the wire could only have dislodged due to the doctor’s negligence, plaintiff failed to establish the elements of res ipsa, specifically that Dr. Wormuth had exclusive control (see Dermatossian v New York City Tr. Auth., 67 NY2d 219, 227-228 [1986]; see also Prosser and Keeton, Torts § 39 at 249-250 [5th ed]). Dr. Wormuth testified that there were other medical personnel involved in the process of inserting the wire and transporting the plaintiff prior to the doctor’s discovery that the wire had dislodged. Plaintiff did not produce any evidence to the contrary. Instead, plaintiffs counsel appears to have believed that the control element was satisfied because the doctor had control over the operation. Whether the doctor was in control of the operation does not address the question of whether he was in exclusive control of the instrumentality, because several other individuals participated to an extent in the medical procedure. Given that plaintiff failed to produce any evidence that the doctor had exclusive control of the wire, or sufficient proof that “eliminate[s] within reason all explanations for the injury other than the defendant’s negligence,” the control element clearly has not been satisfied (Dermatossian, 67 NY2d at 227). Although the control requirement does not mean that “the possibility of other causes must be altogether eliminated, . . . [the] likelihood must be so reduced that the greater probability lies at defendant’s door” (id.).

Plaintiff’s argument that the wire should be treated as a foreign object in support of her res ipsa claim is unpersuasive because her theory of the case was the doctor negligently chose to leave the wire. Thus, this case is distinguishable from those involving objects left unintentionally, where, as plaintiff argues, no decision to leave the object has been made which must be measured against a standard of care. Plaintiffs other contention that the defendant committed gross negligence is similarly without merit.

Here, defendant exercised his professional judgment when he chose to leave the object in the plaintiff, and plaintiff did not present any expert evidence that by so doing, the defendant departed from accepted standards of medical care. Plaintiff failed to demonstrate a prima facie case of medical malpractice based upon res ipsa loquitur, or traditional negligence principles. “As advantageous as the res ipsa loquitur inference is for a plaintiff unable to adduce direct evidence of negligence, application of the [evidentiary] doctrine does not relieve a plaintiff of the burden of proof’ (Lourdes Hosp., 100 NY2d at 213).

Accordingly, the Appellate Division order should be affirmed, with costs.

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

Order affirmed, with costs.

      . Supreme Court granted defendant’s summary judgment motion dismissing plaintiffs original complaint. Plaintiff successfully appealed, and the Appellate Division reinstated the complaint (see 74 AD3d 1895 [4th Dept 2010] [summary judgment improperly granted where affidavits of defendants’ medical experts did not address the specific claims of negligence raised in plaintiff s complaint]). Plaintiff subsequently filed an amended complaint and proceeded to a jury trial.

      . Counsel admitted before the trial court that he “did not introduce an opinion, that this was a breach of accepted standard of medical care. That’s about all we really don’t have.”

      . Plaintiffs contention that defendant was negligent because he left the wire when he could have used the C-arm to locate it during the first surgery further establishes that the plaintiffs case turned on the propriety of the doctor’s choice to leave the wire in the plaintiff and that expert opinion was necessary.


author: Per Curiam. Smith, J. (dissenting).

text:
    [997 NE2d 1229, 975 NYS2d 377]
    In the Matter of Maureen S. Hoerger et al., Appellants, v Thomas J. Spota III, Respondent, et al., Respondent.
    Argued August 21, 2013;
    decided August 22, 2013

      POINTS OF COUNSEL

      Martin E. Connor, Brooklyn, for appellants.
    The state constitutional provision providing that the term of office for district attorney be either three or four years, and the state legislation setting the term of the office in Suffolk County at four years, relates solely to the term to be served between elections. It does not address how many of such terms a person may consecutively hold. (Matter of Kelley v McGee, 57 NY2d 522.)

      Harris Beach PLLC, Uniondale (Thomas J. Garry of counsel), and Kevin G. Snover, North Babylon, for respondent.
    I. The Appellate Division correctly interpreted the Constitution. (Matter of Wendell v Lavin, 246 NY 115; Trotta v Ollivier, 91 AD3d 8; Matter of Town of Eastchester v New York State Bd. of Real Prop. Servs., 23 AD3d 484; Matter of Jewish Home & Infirmary of Rochester v Commissioner of N.Y. State Dept. of Health, 84 NY2d 252.) II. The public office of district attorney is a constitutional office. (Matter of Curry v Hosley, 86 NY2d 470; Matter of Schumer v Holtzman, 60 NY2d 46; Matter of People v Christensen, 77 AD3d 174; Matter of Soares v Herrick, 88 AD3d 148, 20 NY3d 139; Matter of Caputo v Halpin, 78 NY2d 117; Fisher v State of New York, 10 NY2d 60.) III. The public office of district attorney is a matter of state concern. (Matter of Kelley v McGee, 57 NY2d 522; Carey v Oswego County Legislature, 91 AD2d 62, 59 NY2d 847; U.S. Term Limits, Inc. v Thornton, 514 US 779; Matter of Town of Islip v Cuomo, 64 NY2d 50; Adler v Deegan, 251 NY 467; City of New York v State of New York, 94 NY2d 577; Uniformed Firefighters Assn. v City of New York, 50 NY2d 85; Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91; Kamhi v Town of Yorktown, 74 NY2d 423; Turnpike Woods v Town of Stony Point, 70 NY2d 735.) IV The State has preempted the issue of district attorney term limits. (Matter of Enders v Rossi, 45 AD2d 447, 34 NY2d 966; Matter of Kelley v McGee, 57 NY2d 522; Carey v Oswego County Legislature, 91 AD2d 62, 59 NY2d 847.) V The local law impermissibly imposes an additional qualification for the office of district attorney. (Carey v Oswego County Legislature, 91 AD2d 62, 59 NY2d 847; Baez v Hennessy, 853 F2d 73; Matter of Schumer v Holtzman, 60 NY2d 46; Matter of Johnson v Pataki, 91 NY2d 214; U.S. Term Limits, Inc. v Thornton, 514 US 779; Matter of Curry v Hosley, 86 NY2d 470.)

      Kathleen M. Rice, District Attorney, Kew Gardens (John M. Ryan and Edward D. Saslaw of counsel), Steven A. Bender, White Plains, Itamar J. Yeger, Brooklyn, and Morrie I. Kleinbart, Staten Island, for District Attorneys Association of the State of New York, amicus curiae.
    The qualifications to hold the office of district attorney are established under the Constitution of the State of New York and the laws of the state, and performing a state function is a matter of state law and may not be limited by county or local laws. (Morrall v County of Monroe, 271 NY 48; People v Ramos, 34 Misc 3d 914; Matter of Kelley v McGee, 57 NY2d 522; Spota v County of Suffolk, 2012 NY Slip Op 32473[U]; Carey v Oswego County Legislature, 91 AD2d 62, 59 NY2d 847; Baez v Hennessy, 853 F2d 73; Matter of Schumer v Holtzman, 60 NY2d 46; Matter of Johnson v Pataki, 91 NY2d 214; Matter of Roth v Cuevas, 158 Misc 2d 238; People ex rel. Town of Pelham v Village of Pelham, 215 NY 374.)
   OPINION OF THE COURT

Per Curiam.

At issue in this appeal is the validity of Suffolk County’s term limit law pertaining to the office of district attorney. Petitioners allege that, as a consequence of such local law, respondent District Attorney Thomas J. Spota III is ineligible to hold the office he seeks. We conclude that the County is without the power to regulate the number of terms the district attorney may serve, and therefore we affirm the order finding the designating petitions valid.

The Suffolk County Legislature imposed term limits on county officials, including the district attorney (see Local Law No. 27-1993 of the County of Suffolk). After approval by public referendum, the measure was added to the Suffolk County Charter, which specifies that ‘‘[n]o person shall serve as District Attorney for more than 12 consecutive years” (art XIX, § C19-1 [B]). Respondent, who was elected district attorney in 2001, will have served three full four-year terms (or 12 consecutive years) as of December 31, 2013. Spota, however, has been designated as a candidate in the upcoming primary election for the Democratic, Republican, Independence and Conservative Parties.

Petitioner Raymond G. Perini is a candidate for district attorney in the Republican Party primary. Petitioners-objectors are registered voters who filed objections to respondent’s designating petitions with the Suffolk County Board of Elections. They commenced this special proceeding seeking to invalidate the designating petitions. Supreme Court denied the petition and dismissed the proceeding.

The Appellate Division affirmed, finding that the authority to enact a restriction on the number of consecutive years a person can serve as district attorney rests with the State, rather than the County (see 109 AD3d 564 [2d Dept 2013]). Two Justices dissented and would have reversed and granted the petition to invalidate the designating petitions. The dissent would have found that the State has neither expressly nor impliedly preempted the issue of the number of consecutive terms that could be served by an individual district attorney and that the County was therefore free to legislate the matter. Petitioners appeal as of right, pursuant to CPLR 5601 (a).

The State Constitution requires that “[i]n each county a district attorney shall be chosen by the electors once in every three or four years as the legislature shall direct” (NY Const, art XIII, § 13 [a]). For counties outside of New York City, the state legislature has determined that the term of office shall be four years (see County Law § 400 [1-a]; Matter of Enders v Rossi, 45 AD2d 447, 449 [4th Dept 1974], affd 34 NY2d 966 [1974] [“We find no indication of any intent in the Constitution or in the legislative action thereunder to permit local county governments to establish disparate, unbridled terms in the office! ) of . . . district attorney”]). In addition, a district attorney is subject to removal from office, not by county officials, but by the Governor (see NY Const, art XIII, § 13 [b]). The Governor is likewise vested with the authority to fill a vacancy existing in that office (see Carey v Oswego County Legislature, 91 AD2d 62 [3d Dept 1983], affd 59 NY2d 847 [1983]).

We have therefore recognized that “a [district [a]ttorney is a constitutional officer chosen by the electors of a county” (Matter of Soares v Herrick, 20 NY3d 139, 144 [2012] [internal quotation marks and citations omitted]). In other words, although the district attorney may be an officer serving a county, the office and its holder clearly implicate state concerns (see Matter of Kelley v McGee, 57 NY2d 522 [1982]). For example, there is a strong state interest in establishing adequate salaries for district attorneys, as the representatives of the People of the State of New York responsible for enforcing the Penal Law at the local level (see Kelley, 57 NY2d at 539-540).

Existing law further illustrates the necessity of statewide uniformity of qualifications for district attorneys. An individual must be at least 18 years old, a resident of the county and a citizen of the United States (see Public Officers Law § 3 [1]). We have also mandated that a district attorney must be an attorney admitted to practice in order to properly fulfill the duties of the office and that a county may not alter that prerequisite even in the face of major practical obstacles (see Matter of Curry v Hosley, 86 NY2d 470, 475 [1995] [“The possible practical difficulties that might ensue given the few admitted lawyers in Hamilton County cannot override the important legal principle, applicable throughout the State, that the nature of the District Attorney’s duties and responsibilities to the public require the officeholder to be an attorney”]). The office of district attorney is plainly subject to comprehensive regulation by state law, leaving the counties without authority to legislate in that respect. In this light, we view the limitation on the length of time a district attorney can hold office to be an improper imposition of an additional qualification for the position (see generally U.S. Term Limits, Inc. v Thornton, 514 US 779 [1995]).

Permitting county legislators to impose term limits on the office of district attorney would have the potential to impair the independence of that office because it would empower a local legislative body to effectively end the tenure of an incumbent district attorney whose investigatory or prosecutorial actions were unpopular or contrary to the interests of county legislators. The state has a fundamental and overriding interest in ensuring the integrity and independence of the office of district attorney.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Smith, J. (dissenting).

I dissent, because I see nothing in the State Constitution or any state statute that prevents Suffolk County from imposing a limit on the number of consecutive years that a district attorney may serve. On the contrary, article IX, § 2 (c) (ii) (1) of the Constitution and Municipal Home Rule Law § 10 (1) (ii) (a) (1) empower local governments to adopt local laws relating to the “qualifications” and “terms of office” of their “officers and employees,” in the absence of inconsistent state legislation, and no state legislation that is inconsistent with Suffolk County Local Law No. 27-1993 exists.

It is irrelevant that, as the majority notes, a district attorney is “a constitutional officer” as well as a county officer and that the office of district attorney is a subject of statewide concern (majority op at 552). These premises lead, at most, to the conclusion that the state has the power to prohibit the limitation of district attorneys’ terms (see Matter of Kelley v McGee, 57 NY2d 522 [1982])—a proposition petitioners do not contest. The issue is whether the state has exercised that power; the majority cites no statute in which it has done so. Nor can it fairly be said that there is a “necessity of statewide uniformity” on this issue (majority op at 553 [emphasis added]). No calamity will occur if some counties have term limits for district attorneys and others do not. Perhaps statewide uniformity is desirable, but that is for the state legislature, not this Court, to decide.

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

Order affirmed, without costs.


author: Smith, J.

text:
    [997 NE2d 1232, 975 NYS2d 380]
    The People of the State of New York, Respondent, v Eddie Thompson, Jr., Appellant.
    Argued September 3, 2013;
    decided October 10, 2013

      POINTS OF COUNSEL

      Jack H. Weiner, Chatham, for appellant.
    I. The courts below erroneously rejected defendant’s counsel’s objection to the jury panel on the grounds that the panel did not reflect the racial diversity of Ulster County. (People v Pettway, 58 AD3d 944.) II. The trial court committed reversible error when the court denied the challenge for cause of potential Juror Farrell and juror No. 3, William Peters. (People v Furey, 18 NY3d 284; People v Provenzano, 50 NY2d 420; People v Scott, 16 NY3d 589; People v Branch, 46 NY2d 645; People v Blyden, 55 NY2d 73; People v Lynch, 95 NY2d 243; People v Brown, 61 AD3d 1427; People v Turner, 5 NY3d 476.) III. Community hostility prevented defendant from obtaining a fair trial. (United States v Lord, 565 F2d 831; United States v Richardson, 651 F2d 1251.) TV The refusal of the court to recharge the jury on reasonable doubt—while the jurors were distracted by the cell phone and text messaging of juror No. 2—is a violation of defendant’s right to a fair trial. V There is no evidence in the record that Thompson intended to cause serious physical injury to Ms. Johnson. (People v Carroll, 95 NY2d 375; People v Cahill, 2 NY3d 14.) VI. The failure of the prosecution to disclose the grand jury testimony of the ballistics expert and the change of testimony by the forensic expert in the midst of trial caused undue prejudice to Thompson in violation of article 240 of the Criminal Procedure Law. (People v Copicotto, 50 NY2d 222; People v DaGata, 86 NY2d 40; People v Delaney, 125 Misc 2d 928; People v Lewis, 262 AD2d 584; People v Eldridge, 222 AD2d 1109; People v Singh, 13 Misc 3d 1225[A], 2006 NY Slip Op 51988[U]; People v Jorgensen, 26 Misc 3d 1232[A], 2010 NY Slip Op 50348[U]; People v Di Napoli, 27 NY2d 229; People v Montelbano, 232 AD2d 255; People v Santana, 80 NY2d 92.) VII. Defendant’s sentence was unduly harsh, and this Court should reduce it in the interests of justice.

      D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
    I. Defendant waived his challenge to the composition of the jury panel by failing to make a motion in writing prior to the commencement of jury selection and, as such, this claim is unpreserved for appellate review. (People v Parks, 41 NY2d 36; People v Consolazio, 40 NY2d 446; People v Prim, 40 NY2d 946; People v Pettway, 58 AD3d 944; People v Williams, 45 AD3d 905; People v Pressley, 234 AD2d 954; People v Adams, 179 AD2d 764; Duren v Missouri, 439 US 357; People v Guzman, 60 NY2d 403, 466 US 951; People v Gilchrist, 98 AD3d 1232.) II. The trial court did not abuse its discretion as a matter of law when it denied defendant’s challenge for cause to prospective Juror Farrell and to juror No. 3, William Peters. (People v Furey, 18 NY3d 284; People v Branch, 46 NY2d 645; People v Rentz, 67 NY2d 829; People v Clark, 125 AD2d 868; People v Scott, 16 NY3d 589; People v Smith, 52 AD3d 847; People v Provenzano, 50 NY2d 420; People v Colon, 71 NY2d 410, 487 US 1239; People v Molano, 70 AD3d 1172, 15 NY3d 776; People v Duffy, 124 AD2d 258.) III. Defendant was not deprived of a fair trial as a result of a juror’s disclosure that she saw a domestic violence poster containing the victim’s name and date of death while the trial was ongoing, as the court took adequate steps to insure that the juror was not grossly unqualified to serve. (People v Hicks, 6 NY3d 737; People v Torres, 80 NY2d 944; People v Kelly, 5 NY3d 116; People v Nettles, 88 AD3d 492, 18 NY3d 861; People v Johnson, 83 AD3d 1094, 17 NY3d 818; People v Cecunjanin, 67 AD3d 1072, 16 NY3d 480; People v Genovese, 10 NY2d 478; People v Rodriguez, 71 NY2d 214;
      People v Guy, 93 AD3d 877, 19 NY3d 961; People v Elias, 90 AD3d 947, 18 NY3d 923.) IV The trial court did not err by refusing to reread the entire reasonable doubt charge to the jury, which was briefly interrupted when a juror’s cell phone rang. (People v Heide, 84 NY2d 943; People v Tarabania, 72 NY2d 852; People v Medina, 53 NY2d 951; People v Santiago, 52 NY2d 865; People v Davis, 58 NY2d 1102; People v Williams, 46 NY2d 1070; People v Craig, 293 AD2d 351; People v King, 277 AD2d 708.) V Defendant’s contention that his manslaughter in the first degree conviction was based upon legally insufficient evidence is unpreserved for appellate review and beyond the review power of the Court of Appeals. His claim that the verdict was against the weight of the evidence is also beyond this Court’s power of review. (People v Payne, 3 NY3d 266; People v Hawkins, 11 NY3d 484; People v Parker, 29 AD3d 1161; 7 NY3d 907; People v Finger, 95 NY2d 894; People v Bynum, 70 NY2d 858; People v Stahl, 53 NY2d 1048; People v Cona, 49 NY2d 26; People v Gray, 86 NY2d 10; People v Carncross, 14 NY3d 319; People v Hines, 97 NY2d 56.) VI. As the Appellate Division properly determined, Supreme Court did not err by refusing to compel pretrial disclosure of the grand jury testimony of the People’s ballistics expert, and defendant’s challenge to the testimony of the People’s forensic pathologist is unpreserved for appellate review as a matter of law given his failure to object to the pathologist’s testimony concerning the abrasions on the victim’s left temple. (People v Delaney, 125 Misc 2d 928; People v Rosario, 9 NY2d 286; Matter of Miller v Schwartz, 72 NY2d 869; People v DaGata, 86 NY2d 40; People v Copicotto, 50 NY2d 222; Matter of Constantine v Leto, 157 AD2d 376, 77 NY2d 975; People v Colavito, 87 NY2d 423; Matter of Briggs v Halloran, 12 AD3d 1016; Matter of Sacket v Bartlett, 241 AD2d 97; People v Montelbano, 232 AD2d 255, 89 NY2d 944.) VII. Defendant’s claim that Supreme Court’s imposition of a determinate 25-year sentence following his conviction of manslaughter in the first degree was unduly harsh and excessive and should be reduced in the interest of justice is beyond the review powers of this Court. (People v Baumann & Sons Buses, Inc., 6 NY3d 404; People v Payne, 3 NY3d 266; People v Discala, 45 NY2d 38; People v Rytel, 284 NY 242; People v Gittelson, 18 NY2d 427.)
   OPINION OF THE COURT

Smith, J.

We hold that a failure to exercise a peremptory challenge against a juror who was a longtime friend of the prosecuting attorney did not amount to ineffective assistance of counsel.

Defendant was charged with murder for shooting his girlfriend. The District Attorney of Ulster County tried the case personally. During voir dire, a prospective juror, whom we will call William Peters, volunteered that he had been “a friend” of the District Attorney “for forty plus years.” In response to the court’s question, Peters said that the relationship would not in any way affect his “ability to be a fair and impartial juror.” Later, Peters disclosed that he was on a first-name basis with the District Attorney, knew his wife and socialized with him “[occasionally.” In response to a question from defense counsel, he also said of the District Attorney: “I’ve known him to be wrong before.”

Defense counsel challenged Peters for cause. The trial court denied the challenge, and the defense lawyer, though he had peremptory challenges available, chose not to use one on this panelist. Peters was selected for, and sat on, the jury, which acquitted defendant of second degree murder but convicted him of the lesser included offense of manslaughter. The Appellate Division affirmed (People v Thompson, 92 AD3d 1139 [3d Dept 2012]), and a Judge of this Court granted leave to appeal (19 NY3d 977 [2012]). We now affirm.

While defendant raises many arguments on appeal, we think that the only one requiring discussion is that his trial counsel was ineffective for failing to use a peremptory challenge to remove Peters from the jury. Defendant criticizes some of defense counsel’s other decisions, but we find those criticisms to be ill-founded. Counsel’s overall performance at trial was competent. Indeed, considering the evidence in the case—the victim had two bullet wounds, and defendant’s claim that he shot her accidentally was contradicted both by eyewitness testimony and by forensic evidence—a verdict of manslaughter, rather than murder, seems something of an achievement.

Thus, defendant can prevail on his ineffective assistance claim only by showing that this is one of those very rare cases in which a single error by otherwise competent counsel was so serious that it deprived defendant of his constitutional right (see People v Turner, 5 NY3d 476, 478 [2005]). We held in Turner that this had occurred where a lawyer overlooked “a defense as clear-cut and completely dispositive as a statute of limitations” (id. at 481). The mistake that defendant accuses defense counsel of making here was not of that magnitude.

It could be argued that counsel’s decision not to use a peremptory challenge on Peters was a mistake for two reasons: because Peters, as a juror, would be biased in the prosecution’s favor; and because, by not using a peremptory challenge to excuse him, counsel failed to preserve for appeal any claim that the court erred in rejecting the for-cause challenge. We consider those arguments separately.

The first argument is a weak one, because defense counsel may reasonably have thought Peters an acceptable juror from the defense point of view. Defense counsel may have liked Peters’s demeanor, or may have believed that his relationship with the prosecutor would make him bend over backwards to be fair. Of course, to refrain from challenging an old friend of the prosecutor’s was an unconventional, perhaps risky choice— defense counsel clearly knew that, for he mused aloud after making the decision “I should have my head examined”—but lawyers selecting juries are not ineffective because they make unconventional choices or play hunches. And, in any event, an ineffective assistance claim cannot succeed without a showing that the fairness of the trial was impaired (People v Stultz, 2 NY3d 277, 283-284 [2004]; People v Benevento, 91 NY2d 708, 713 [1998]). The record here provides no basis for concluding that Peters’s presence on the jury prejudiced defendant (see People v Turck, 305 AD2d 1072, 1073 [4th Dept 2003]; People v Driscoll, 251 AD2d 759, 761 [3d Dept 1998]; People v Thomas, 244 AD2d 271 [1st Dept 1997]).

The second argument—that counsel erred by failing to preserve the issue of the for-cause challenge for appeal—gives us somewhat more pause. The trial court’s decision to deny the challenge for cause may have been error (see People v Branch, 46 NY2d 645 [1979] [error to deny challenge to a prospective juror who had both a professional and personal relationship with the prosecutor]). Counsel’s choice not to exercise a peremptory challenge deprived defendant of the opportunity to make that argument on appeal; under CPL 270.20 (2), where a defendant has not exhausted his peremptory challenges, a denial of a challenge for cause “does not constitute reversible error unless the defendant. . . peremptorily challenges such prospective juror.” Considering the poor odds of acquittal that defendant was facing, it is hard to see how keeping a particular juror—no matter how strong defense counsel’s hunch that he would be favorable—could justify the loss of a significant appellate argument.

We conclude, however, that counsel’s mistake, if it was one, was not the sort of “egregious and prejudicial” error that amounts to a deprivation of the constitutional right to counsel (People v Caban, 5 NY3d 143, 152 [2005]). The issue of the for-cause challenge was not, in the words of Turner, “clear-cut and completely dispositive.” The record shows that Peters and the prosecutor had a long relationship that Peters described as a friendship, but we do not know how intimate they were or how often they socialized. Peters did not, as the prospective juror in Branch did, have a professional relationship with the prosecutor as well as a personal one. Unquestionably, it would have been wiser for the trial judge to excuse Peters—thus, at worst, replacing one impartial juror with another (see Branch, 46 NY2d at 651; People v Scott, 16 NY3d 589, 595 [2011]; People v Blyden, 55 NY2d 73, 78 [1982]). But whether the court committed reversible error is debatable. While defense counsel’s decision not to use a peremptory challenge on Peters was questionable, we cannot say that it rendered his representation of defendant as a whole ineffective.

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

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

Order affirmed.