author: Chief Judge DiFiore. Rivera, J.

text:
    [52 NE3d 1158, 33 NYS3d 132]
    The People of the State of New York, Respondent, v Quanaparker Howard, Appellant.
    Argued March 30, 2016;
    decided May 3, 2016

      Kathryn Friedman, Buffalo, for appellant.

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

Chief Judge DiFiore.

In People v Knox (12 NY3d 60, 69 [2009], cert denied 558 US 1011 [2009]), we held that “the Legislature c[an] constitutionally provide that all those convicted of kidnapping or unlawfully imprisoning children not their own, or of attempting to commit those crimes, be conclusively deemed sex offenders”— subject to the Sex Offender Registration Act (SORA) — even where there “was neither a sexual assault nor any discernible risk of one” associated with the SORA-qualifying offense.

Defendant does not dispute that he is a “sex offender” as defined by SORA. Rather, he protests his adjudication as a risk level three sex offender by the SORA hearing court following convictions for the assault and the unlawful imprisonment of his then-girlfriend’s eight-year-old son during which he caused serious physical injury to the child with a dangerous instrument. Specifically, the issue on appeal is whether the SORA hearing court abused its discretion in adjudicating defendant a risk level three where the unlawful imprisonment conviction, the qualifying crime for SORA, did not involve a sexual component. We find no abuse of discretion on this record.

I.

By all accounts, the facts are egregious. Defendant, along with his codefendant, tied codefendant’s eight-year-old son up, naked, in a standing position and repeatedly beat him with dangerous instruments for a period of approximately five days. The child, bruised and battered, was discovered by police in an “upper bedroom naked with his arms tied to the closet and bed post, a sock stuck into his mouth, a pillowcase tied over his head, [and] socks tied on his wrists and his feet with electrical cord.” As a result of this ordeal, the child suffered a collapsed lung, bruised intestines, a lacerated liver and pooled blood in the abdomen. Defendant was convicted of first-degree unlawful imprisonment (Penal Law § 135.10), two counts of first-degree assault (id. § 120.10 [1], [3]), and one count each of second degree assault (id. § 120.05 [8]) and endangering the welfare of a child (id. § 260.10 [1]).

As a nonparent convicted of unlawful imprisonment of a victim less than 17 years of age, defendant was required to register as a sex offender pursuant to SORA (Correction Law § 168 et seq.). In preparation for defendant’s release, the Board of Examiners of Sex Offenders (the Board) prepared a risk assessment instrument (RAI) that assessed defendant a risk factor score of 55 points, warranting a level one classification. The Board had assessed zero points for risk factor 2, “Sexual Contact with Victim.” The Board noted, however, that under the Guidelines, an override to level three was applicable because defendant inflicted serious physical injury to his victim. The Board further noted that no departure from that presumptive risk level was warranted.

At defendant’s SORA hearing — at which defendant waived his right to appear — defense counsel argued that a level one classification was appropriate, stating that “the defendant’s scored at a Level 55. It does not appear that any of the accusations of which [defendant] was accused were of a sexual nature and, therefore, we would not dispute the score of 55 and ask that there be no departure.”

The People, on reviewing the RAI, requested that for risk factor 1, “Use of Violence” in the current offense, the court assess defendant 30 points, as opposed to the 15 points assessed for “[i]nflicted physical injury,” because defendant was “armed with a dangerous instrument.” This additional 15 points brought the total risk factor score to 70 points, still a presumptive risk level one. The People also agreed with the Board’s application of the presumptive override to risk level three on the basis that the offender inflicted serious physical injury.

Defense counsel responded, arguing that “this is a sex, S-E-X, offender registration. And because [defendant’s] crime does not appear to have any of those connotations and allegations I think that a Level 1 is appropriate.”

County Court adjudicated defendant a level three sex offender, finding defendant’s total risk factor score was 70— constituting a risk level one — but employing the override to a presumptive risk level three for infliction of serious physical injury. The court “agree [d] with the Board’s recommendation and the People’s on the [p]resumptive [l]evel [three].” The court declined to depart from that presumptive level, highlighting “the extensive serious injury inflicted upon the victim” which included “torture inflicted” and finding that defendant “pose[d] a serious risk to public safety that [wa]s not captured by the scoring instrument.”

The Appellate Division unanimously affirmed for the reasons stated by County Court (125 AD3d 1331 [4th Dept 2015]). This Court granted leave to appeal (25 NY3d 906 [2015]), and we now affirm.

II.

At a SORA hearing, the People must prove the facts to support a SORA risk-level classification by clear and convincing evidence (Correction Law § 168-n [3]). Here, defendant ultimately scored a total of 70 points on the RAI, warranting classification as a level one sex offender, and that score is not at issue in this appeal. However, the RAI also provides for four automatic overrides, the application of which will result in a presumptive risk assessment of level three (see Guidelines at 3-4). Relevant to this appeal, one of these overrides is for the “infliction of serious physical injury or the causing of death” {id. at 3). There is no dispute that defendant was convicted of the crime of first-degree assault, wherein he caused serious physical injury to the victim by the use of a dangerous instrument (see Penal Law § 120.10 [1]), and, therefore, the override was properly applied.

Nevertheless, the hearing court has the discretion to depart from a presumptive level (see Knox, 12 NY3d at 70). We have held that such departures are “the exception, not the rule” (People v Johnson, 11 NY3d 416, 421 [2008]). In determining whether to depart from a presumptive risk level, the hearing court weighs the aggravating or mitigating factors alleged by the departure-requesting party to assess whether, under the totality of the circumstances, a departure is warranted (People v Gillotti, 23 NY3d 841, 861 [2014]).

In People v Cintron, decided in tandem with Knox, we addressed the question of whether “the courts below abused their discretion in not departing from the guideline level [three], since the crimes that gave rise to the adjudication did not involve sex” (12 NY3d at 70). We answered that question in the negative, citing defendant Cintron’s “long record of violent conduct, including sexual violence” (id.).

In the present appeal, defendant’s argument that the SORA court erred in adjudicating him a level three sex offender is essentially twofold. Defendant argues (1) that SORA is unconstitutional as applied to him and (2) that the SORA court abused its discretion in “engaging in an upward departure” from a risk level one to three because defendant’s crime did not involve a sexual component.

III.

Defendant’s constitutional argument is unpreserved for this Court’s review (see People v Windham, 10 NY3d 801, 802 [2008]).

As to defendant’s remaining argument, defendant characterizes his level three adjudication as an “upward departure” from the presumptive risk level one warranted by the 70 points he was assessed. However, the application of the override for “infliction of serious physical injury,” “automatically result[s] in a presumptive risk assessment of level [three]” (Guidelines at 3). Therefore, properly framed, defendant’s argument is that the SORA court abused its discretion in declining to engage in a downward departure from the presumptive risk level three. We disagree.

Defendant’s sole argument to the SORA court was that the absence of a sexual component to his crime, in and of itself, warranted a level one adjudication. That factor, the existence of which was not in dispute, was considered in defendant’s RAI wherein the Board assessed him zero points for risk factor 2 — “Sexual Contact with Victim.” Defendant made no other argument of a mitigating factor to the SORA court in support of a downward departure. In the exercise of its discretion, the SORA court declined to depart from the presumptive risk level three.

At the SORA hearing, defendant was represented by counsel and afforded an opportunity to present any other mitigating factors. There is nothing in the record to suggest that the hearing court felt it did not possess the discretion to depart from the presumptive level three, nor to suggest that the hearing court did not exercise that discretion (cf. People v Reynolds, 68 AD3d 955, 955-956 [2d Dept 2009]). In fact, the court found that such a downward departure was not “warranted by the evidence,” making the finding that based on “the torture inflicted” defendant “poses a serious risk to public safety that is not captured by the scoring instrument.”

On appeal, defendant attempts to distinguish his case from that of People v Cintron because he has no past criminal history of sexual offenses. However, absence of past sexual offenses alone does not compel a conclusion that the hearing court abused its discretion. Defendant was assessed no points for criminal history on his RAI and he made no argument before the SORA court that his past criminal history was not properly considered as a mitigating factor.

Defendant’s argument asks this Court to have tunnel vision with respect to other aspects of his underlying offense, which included imprisoning a naked eight-year-old victim for five days in a bedroom and torturing him and causing serious physical injury.

Under these circumstances, it was not an abuse of discretion for the SORA court to decline to depart from the presumptive risk level three.

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

Rivera, J.

(dissenting). Defendant was not convicted of a sex offense, but because he was found guilty of first-degree unlawful imprisonment of his codefendant’s eight-year-old child, defendant was statutorily classified as a sex offender, and thus subject to the Sex Offender Registration Act (SORA) (Correction Law § 168-a [1], [2] [a] [i]). In accordance with SORA, County Court assigned defendant what it considered an appropriate risk level, which, in turn, determined how much of defendant’s personal information would be made public and the duration of his registration after his release from prison. However, County Court committed a fundamental error when it applied the clear and convincing evidence standard in determining whether a downward departure from the assigned level was warranted in defendant’s case. The proper legal standard, and one consistent with S ORA’s legislative intent “to carefully guard a defendant’s liberty interest,” is the less onerous preponderance of the evidence standard (People v Gillotti, 23 NY3d 841, 864 [2014]).

Since the record before us fails to establish that County Court properly determined the existence and weight to be afforded defendant’s mitigating factors, the matter should be reversed and remitted for reconsideration. I therefore dissent from the majority’s decision to let stand a judicial determination based on a standard rejected by this Court, without proper consideration of the merits of defendant’s arguments, and which imposes on defendant a lifetime registration requirement with its attendant adverse consequences.

The scope and duration of SORA registration is determined by a court after consideration of recommendations from the People and the Board of Examiners of Sex Offenders (Board). Under SORA, the assigned notification level depends “upon the degree of the risk of re-offense by the sex offender” (Correction Law § 168-1 [6]). The Board makes its “risk level” assessment based on a numerical score derived from an aggregation of points assigned to various factors identified in a risk assessment instrument (RAI), created and utilized by the Board (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006]). According to the SORA Risk Assessment Guidelines and Commentary (Guidelines) promulgated by the Board, a total score of 70 points or less results in a level one, low risk designation; over 70 but less than 110 points is assigned a level two, moderate risk designation; and 110 or more points results in a level three, high risk designation {id. at 1, 3).

The Guidelines also impose four automatic overrides resulting in a presumptive risk level three, regardless of the RAI point score {id. at 3-4). However, the overrides are not mandatory, and a court may depart from the override when warranted {id. at 4 [“The risk level calculated from aggregating the risk factors and from applying the overrides is ‘presumptive’ because the Board or court may depart from it if special circumstances warrant”]; see also People v Pettigrew, 14 NY3d 406, 409 [2010] [“The risk level suggested by the RAI, however, is merely presumptive, and the assigning of a risk level is within the sound discretion of the SORA court”]; People v Mingo, 12 NY3d 563, 568 n 2 [2009]). A departure from the presumptive risk level

“is premised on a recognition that an objective instrument, no matter how well designed, will not fully capture the nuances of every case. Not to allow for departures would, therefore, deprive the Board or a court of the ability to exercise sound judgment and to apply its expertise to the offender” (Guidelines at 4).

A court may depart if it concludes “there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (id.; Gil-lotti, 23 NY3d at 861).

This Court held in People v Gillotti that a defendant must establish by a preponderance of the evidence the existence of mitigating circumstances supporting a downward departure from the presumptive risk level (23 NY3d at 861). If such circumstances exist, “the court must exercise its discretion by weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant’s dangerousness and risk of sexual recidivism” (id.).

As relevant here, the Board’s RAI assigned defendant 55 points and the People recommended additional points bringing the score to 70. Both scores presumptively placed defendant at level one. However, the Board and the People recommended that defendant be designated a level three risk based on a presumptive override for having inflicted serious physical injury to the child victim of his underlying crime. The People argued that a level three designation was appropriate given concerns for community safety because of defendant’s indifference to the life of a child. Both relied on record evidence that defendant and codefendant, his friend and the child’s mother, tied up and subjected the child, while naked, to physical abuse over the course of five days. Defendant beat the child with a belt and a plastic bat. The child was subsequently treated for a collapsed lung, lacerated liver and intestines, and pooled blood in the abdomen. County Court concluded that the People established by clear and convincing evidence facts in support of the presumptive override, and that a downward departure was not warranted by the evidence. The Fourth Department summarily affirmed for reasons stated in the decision by County Court (125 AD3d 1331 [4th Dept 2015]).

Based on the level three designation, among other requirements, defendant must register with the Division of Criminal Justice Services and his name, any aliases, date of birth, race, sex, height, weight, eye color, home address, driver’s license number, a description of his offense, date of conviction, sentence, and a photograph, updated annually, will be published online for the rest of defendant’s life (Correction Law §§ 168-b [1] [a], [b], [c]; 168-h [2]). Defendant must further appear before the local law enforcement agency with jurisdiction every 90 days to verify his address (Correction Law § 168-h [3]).

At the SORA hearing and on appeal, defendant has consistently argued that his level three designation based on the presumptive override is unwarranted because his underlying conviction does not involve a sex crime. Defendant contends that a level one designation is appropriate. Defendant’s argument is supported, in part, by the case summary prepared by the Board, in which it concluded that defendant had no prior criminal history and the underlying crime “was not sexually driven.”

These circumstances should have been considered as possible mitigating factors supporting a departure from the presumptive level three override in accordance with this Court’s reasoning in People v Knox and its companion case, People v Cintron (12 NY3d 60 [2009]). In Knox, this Court considered a constitutional challenge to SORA by persons, like defendant, who were designated as “sex offenders” for SORA registration purposes even though their underlying crimes did not involve sexual acts or motives. Applying the most deferential constitutional test, the Court determined that the state legislature had a rational basis for concluding that in the large majority of cases involving kidnapping or unlawful imprisonment of children by nonparents, the children are either sexually assaulted or in danger of sexual assault {id. at 68-69). Therefore, the legislature could rationally provide that, “as a general rule, people guilty of such crimes should be classified as ‘sex offenders’ ” {id. at 69). However, the Court recognized that as applied to the minority of defendants whose cases do not involve “a sexual assault [or] any discernible risk of one,” even if constitutional, “the term is unmerited” {id.).

In Cintron, the Court further considered whether a nonpar-ent defendant classified as a sex offender based on his conviction for unlawful imprisonment of two child victims could be lawfully designated a risk level three (id. at 70). Defendant Cintron asserted that the courts abused their discretion in failing to depart from the Guideline level because his underlying crime did not involve sex (id.). The Court rejected this argument, not because this factor was irrevelant, but because the defendant’s history included conduct that justified the sex offender risk level. The Court concluded that given the defendant’s “long record of violent conduct, including sexual violence,” and a serious tier III sex offense committed during incarceration, the Court could not say that the lower courts abused their discretion in determining that Cintron was a high risk to “commit a sex crime in the future” (id.).

As the analyses in these cases illustrate, the fact that an offender’s criminal history does not include any sex crime or sexual violence is a relevant factor in assessing whether classification as a sex offender merits a level three risk designation. However, here, County Court failed to apply the proper standard in determining whether a downward departure from the presumptive level three designation was warranted based on defendant’s proposed mitigating factors. The court referenced only the clear and convincing standard in analyzing defendant’s risk level, made no distinction between the People’s burden and the proof necessary to justify a downward departure from the presumptive override, and failed to discuss how, if at all, it weighed defendant’s apparent absence of a criminal history. Thus, there is no support for the majority’s assumption that County Court agreed with defendant that mitigating factors existed, and then, based on the totality of the circumstances, found those factors insufficient to warrant a departure (majority op at 343 n 3). In fact, County Court made no mention of defendant’s argument that because the underlying crime was not a sex crime he should be classified as a level one offender. County Court may have agreed that mitigating factors existed, or it may have rejected defendant’s argument. On this record, there is no way to know.

County Court’s silence is especially noteworthy given that the sexually violent history this Court singularly relied on in upholding the level three designation in Cintron is lacking from defendant’s case. Additionally, whereas Cintron’s level three risk assessment was based on his RAI score, defendant’s RAI placed him at a level one, low risk to reoffend, and his level three designation is a consequence of the application of the only guideline override that does not include an element involving a sexual act or motivation. These circumstances could have tipped in favor of a judicial determination that a level three designation is an “over- . . . assessment of the defendant’s dangerousness and risk of sexual recidivism” (Gillotti, 23 NY3d at 861, citing Knox, 12 NY3d at 70; People v Johnson, 11 NY3d 416, 421 [2008]), and that he did not pose “a high risk [to] commit a sex crime in the future” (Knox, 12 NY3d at 70).

In light of the unsupportable assumptions necessary to uphold the decision below, I would remand and remit for the court to consider, under the preponderance of the evidence standard, whether the nature of defendant’s crime and the absence of a history of sexual violence are mitigating factors within the meaning of SORA, the Guidelines, and this Court’s precedent warranting a departure from the level three presumptive override. I cannot agree with the majority that there was no error below, and therefore, I dissent.

Judges Pigott, Abdus-Salaam, Stein, Fahey and Garcia concur; Judge Rivera dissents in an opinion.

Order affirmed, without costs.

      . A score between 0 and 70 results in a presumptive risk level one classification, while a score greater than 70 but less than 110 points results in a presumptive risk level two classification, and a score 110 points or greater results in a presumptive risk level three classification (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006] [hereinafter Guidelines]).

      . Notably, Gillotti was decided after defendant’s SORA hearing in this matter.

      . The dissent focuses on the standard by which County Court assessed the quantum of proof supporting the existence of the alleged mitigating factors — that there was no sexual component to his offense and that defendant’s criminal history did not include any sex crime or sexual violence. However, there was no factual dispute as to the existence of those factors, and the RAI reflected that “0” points were assessed for both. Therefore, County Court had every reason to find the existence of the factors was established by defendant. The issue here is whether County Court properly exercised its discretion “to determine whether the totality of the circumstances warrant [ed] a departure” (Gillotti, 23 NY3d at 861). We also decline to presume that, in affirming County Court’s order, the Appellate Division did not properly apply the law, particularly since the decision was rendered after this Court’s decision in Gillotti (23 NY3d 841).

      . The majority’s statement that defendant’s RAI already accounts for the fact that his underlying crime does not involve sex is a distraction from the issue on appeal (majority op at 342). The Guidelines are explicit that the inquiry is whether “there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (Guidelines at 4 [emphasis added]; Gillotti, 23 NY3d at 861). Therefore, even where the factor in question is explicitly considered in the calculation of an offender’s RAI score, if the court concludes it is “not adequately taken into account,” a court may consider it further in determining whether to depart.

      . While I might agree with the majority that we can presume the Appellate Division correctly applied the law because it rendered its opinion after this Court decided Gillotti, that presumption is at odds with the Appellate Division’s summary opinion here. The Appellate Division affirmed “for reasons stated” by County Court (125 AD3d at 1331), and without at least a citation to Gillotti there is no reason to presume that the Court applied the proper standard. In any event, the Appellate Division opinion sheds no light on how defendant’s mitigation factors were considered below.


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [52 NE3d 1166, 33 NYS3d 140]
    Michael Jiannaras, Plaintiff, v Mike Alfant et al., Appellants, et al., Defendant. Kathleen M. Ackerman et al., Nonparty Respondents.
    Argued March 30, 2016;
    decided May 5, 2016

      Hogan Lovells US LLP, Washington, D.C. (Frederick Liu, of the District of Columbia bar, admitted pro hac vice, Neal Ku-mar Katyal and Matthew A. Shapiro of counsel), and Hogan Lovells US LLP, New York City (David Wertheimer of counsel), for appellants.

      Karlinsky LLC, New York City {Martin E. Karlinsky and Amy A. Lehman of counsel), for nonparty respondents.
   OPINION OF THE COURT

Pigott, J.

At issue on this appeal is a proposed settlement of class action litigation arising out of the merger of defendants On2 Technologies, Inc. and Google Inc. The proposed settlement would release and extinguish any and all damage claims relating to the merger without affording class members an opportunity to “opt out,” thereby prohibiting class members from pursuing any individual claims that are separate and apart from the class settlement. We hold that because the proposed settlement in this instance would deprive out-of-state class members of a cognizable property interest, the courts below properly refused to approve the settlement.

Google and On2 (a former publicly-held Delaware corporation domiciled in New York State) entered into a merger agreement on August 4, 2009. After announcement of the merger, plaintiff, the owner of common shares of On2 stock, brought a class action in Supreme Court on behalf of himself and other similarly situated On2 shareholders. He alleged that On2’s board of directors had, among other things, breached its fiduciary duty to its shareholders. He sought mostly equitable relief. Other On2 shareholders commenced similar actions in the Delaware Court of Chancery.

Thereafter, the plaintiffs in the New York and Delaware actions agreed with On2 and its directors to settle all claims with respect to the merger. The parties filed a stipulation of settlement with Supreme Court that provided for, among other things, dismissal of the New York and Delaware actions in their entirety, with prejudice, and a release of “any and all” merger-related claims. The settlement did not provide for opt-out rights. The court preliminarily certified the proposed settlement class pursuant to CPLR article 9, subject to final determination after a fairness hearing.

Over 200 shareholders filed objections to the proposed settlement, alleging, as relevant to this appeal, that the omission of an opt-out right deprived out-of-state shareholders of their ability to pursue claims arising from the merger.

Following a hearing, Supreme Court found the settlement to be fair, adequate, reasonable and in the best interest of the class members. Nevertheless, the court refused to approve the settlement because it did not afford out-of-state class members the opportunity to opt out. On appeal, the Appellate Division, with one Justice dissenting, affirmed (124 AD3d 582 [2d Dept 2015]). We agree with the Appellate Division that this case is governed by our holding in Matter of Colt Indus. Shareholder Litig. (77 NY2d 185 [1991]), and we decline an invitation to overrule that case.

Opt-out rights ensure that class members will have the option of pursuing individual actions for redress. In Phillips Petroleum Co. v Shutts (472 US 797, 811 n 3 [1985]), the United States Supreme Court held that due process requires opt-out rights in actions “wholly or predominately” for monetary damages.

After Shutts, this Court in Matter of Colt considered whether a Missouri corporation with no ties to New York had a due process constitutional right to opt out of a New York class action in which the relief sought in the complaint was largely equitable in nature. We held that “there is no due process right to opt out of a class that seeks predominantly equitable relief” (Colt, 77 NY2d at 195). Nonetheless, we determined that the trial court erred as a matter of law by approving the settlement that purported to extinguish rights of nonresident class members to bring an action for damages in another jurisdiction (id. at 197). We noted that once “the parties presented the court with a settlement that . . . required the class members to give up all claims in damages, the nature of the adjudication changed dramatically” (id. at 199). In essence, while it was initially permissible to decline to afford class members the opportunity to opt out when the complaint demanded predomi-nently equitable relief, the trial court erred “by seeking to bind [class members] with no ties to New York State to a settlement that purported to extinguish [their] rights to bring an action in damages in another jurisdiction” {id. at 197).

The same can be said here. While the complaint seeks predominately equitable relief, the settlement would also release any damage claims relating to the merger by out-of-state class members. The broad release encompassed in the agreement bars the right of those class members to pursue claims not equitable in nature, which under Shutts and Colt, are constitutionally protected property rights. Defendants attempt to distinguish Matter of Colt by the scope of the release in that case, which included release of claims related to a prior leveraged buyout in addition to merger-related claims (Colt, 77 NY2d at 190). While it is true that the provision was included in the release in Colt, it was not relied upon in this Court’s holding (see id. at 197 [“The settlement in this case gave class members relief that was essentially equitable in nature, but exacted as a price for that relief a concession that the class members could not pursue damage claims based on the merger” (emphasis added)]). At no point did this Court make any attempt to tie the opt-out rights to the fact that the objecting shareholder held shares at the time of the earlier leveraged buyout. Instead, we noted only that, at the time of the merger, the shareholder held a specific number of Colt shares (see id. at 188). Accordingly, the releases in Matter of Colt and this case are not distinguishable for purposes of our opt-out analysis. Thus, we perceive no error in the refusal of the courts below to approve the settlement that did not include an opt-out provision.

Defendants urge us to distinguish “incidental damages” sought from individualized damage claims. Relying primarily on Wal-Mart Stores, Inc. v Dukes (564 US 338 [2011]), they argue that if the legal damage claims are merely “incidental” to “predominantly equitable relief” it is permissible to bind out-of-state class members.

Wal-Mart is instructive for distinguishing federal class actions from those brought under New York law. Federal Rules of Civil Procedure rule 23 (b) (2) applies to actions for equitable and declaratory relief and does not contain a right to notice or to opt out of class actions commenced pursuant thereto. The Supreme Court held that claims for monetary relief may not be certified under rule 23 (b) (2) “at least where . . . the monetary relief is not incidental to the injunctive or declaratory relief” (564 US at 360). In other words, “individualized monetary claims” belong in another provision, rule 23 (b) (3), where the opportunity for class members to opt out is available (564 US at 362). The Court reserved decision on whether due process requires opt-out rights of a rule 23 (b) (2) settlement if the monetary relief sought is “incidental” to the injunctive or declaratory relief (564 US at 365), but the Court’s language suggests some skepticism as to whether any monetary damages could qualify as “incidental” (see id. [“We need not decide in this case whether there are any forms of ‘incidental’ monetary relief that are consistent with the interpretation of Rule 23(b)(2) we have announced and that comply with the Due Process Clause” (emphasis added)]).

Wal-Mart has no bearing on the resolution of this appeal, however. Here, plaintiff sought class certification under article 9 of New York’s CPLR. As we recognized in Matter of Colt, “[u]nlike rule 23,” which defines three types of class actions and requires notice and opt-out rights only as to one type of class, the New York statute “contemplates . . . that a Judge may choose to exercise discretion to permit a class member to opt out of a class” (Matter of Colt, 77 NY2d at 194, citing CPLR 903, 904). Indeed, the CPLR authorizes trial courts to expand due process rights where a class settlement would extinguish out-of-state class members’ damages claims separate from class-wide equitable relief. Notably, the settlement agreement here, as in Matter of Colt, impinges on the right of out-of-state class members to pursue any and all claims for damages relating to the merger, not only claims that may be considered incidental.

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

Chief Judge DiFiore and Judges Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

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

       Plaintiff sought a declaration that the action was maintainable in class form; a certification as class representative; a declaration that the merger agreement was entered into in breach of fiduciary duties and was unlawful and unenforceable; rescission of the merger agreement; an injunction against consummation of the merger unless Google and On2 implemented a procedure to obtain the highest price and made full disclosure of material facts; a constructive trust over consideration improperly received; and attorneys’ fees.


author: Stein, J.

text:
    [52 NE3d 1170, 33 NYS3d 144]
    The People of the State of New York, Respondent, v Jonathan J. Connolly, Appellant.
    Argued March 31, 2016;
    decided May 10, 2016

      David C. Schopp, The Legal Aid Bureau of Buffalo, Inc., Buffalo {Alan Williams and Timothy P. Murphy of counsel), for appellant.

      Lawrence Friedman, District Attorney, Batavia {William G. Zickl of counsel), for respondent.
   OPINION OF THE COURT

Stein, J.

In this appeal, we are asked to determine whether the procedures employed at defendant’s second restitution hearing, in which exhibits and transcripts from a prior hearing conducted by a judicial hearing officer (JHO) were admitted into evidence and no further evidence was taken — despite County Court’s offering the parties an opportunity to call additional witnesses and put in further proof — were sufficient to comport with Penal Law § 60.27 (2) and CPL 400.30. Inasmuch as the procedures were sufficient, we affirm.

Defendant was charged in an indictment with attempted arson in the second degree, menacing a police officer, criminal possession of a weapon in the third degree and attempted assault in the first degree (two counts). The charges arose out of an incident during which defendant allegedly broke into his girlfriend’s apartment and threatened to kill her, swung a knife at a police officer who attempted to enter the apartment through a broken window, threatened to slit the responding officers’ throats if they came into the apartment, broke windows and threw things (such as a television and speakers) out the windows at the officers, threatened to hang himself with a dog leash, and set fires inside the residence. In March 2009, defendant pleaded guilty to attempted assault in the first degree and attempted arson in the third degree. Although defendant admitted to committing the elements of attempted arson in the third degree, he entered an Alford plea to the attempted assault charge (see North Carolina v Alford, 400 US 25 [1970]).

Defendant was sentenced, as a second felony offender, to an aggregate term of eight years in prison, to be followed by five years of postrelease supervision. The issue of restitution was severed for a fact-finding hearing and, over defendant’s objection, that hearing was held before a JHO. The People presented multiple exhibits — including insurance documents, receipts, photographs, appraisals and a police incident report — together with the testimony of an insurance adjuster, showing that the owner of the damaged apartment received approximately $33,000 from his insurance company for the damages caused by defendant’s actions. Defendant presented the testimony of his former girlfriend (and then wife) that the owner caused additional damage to the apartment’s windows in order to obtain extra insurance money.

The JHO concluded that defendant should be required to pay restitution to the owner’s insurer in the amount of $31,400. The parties appeared before County Court the following day; that court fixed restitution in the amount recommended by the JHO, plus a 5% surcharge. Defendant appealed, and the People both conceded that County Court had erred by delegating its authority to conduct the restitution hearing to a JHO and consented to a remittal to County Court for a new hearing. Based upon the People’s concession, the Appellate Division modified and remitted (100 AD3d 1419, 1419 [4th Dept 2012]). When the parties appeared before County Court on remittal, the People indicated that they intended to offer into evidence the transcript of the prior hearing conducted by the JHO, and then rest. Defendant argued that he was entitled to a hearing de novo, and that introduction of the transcript was not sufficient to meet the People’s burden of proof. The court rejected defendant’s argument, but clarified that it was not limiting the proof to the transcript of the prior hearing, explaining that defense counsel was “free to subpoena witnesses, call your client, do anything you would like to do.” The court then adjourned the matter to enable defendant to prepare witnesses.

At the next County Court appearance, the People submitted the transcript and exhibits from the hearing before the JHO. Defendant did not proffer any proof, but argued that the amount of damages claimed by the adjuster was not supported by the evidence. County Court held that the People satisfied their burden of producing proof sufficient to establish, by a preponderance of the evidence, the proper amount of restitution. The court increased the award of restitution by several hundred dollars, rejecting the testimony of defendant’s wife that the owner had broken windows for the purpose of defrauding the insurance company. Upon defendant’s appeal, the Appellate Division affirmed (118 AD3d 1449 [4th Dept 2014]). A Judge of this Court granted defendant leave to appeal (24 NY3d 1119 [2015]), and we now reject defendant’s argument that, where a restitution hearing is required, the sentencing court commits reversible error when it relies upon a transcript of a hearing before a different factfinder without taking live testimony.

Penal Law § 60.27 (1) “addresses the related concepts of restitution and reparation, allowing a court to order a defendant to make restitution of the fruits of his or her offense or reparation for the actual out-of-pocket loss caused thereby” (People v Horne, 97 NY2d 404, 410 [2002] [internal quotation marks and citation omitted]). This Court has recognized that New York has a “long-standing policy of promoting, encouraging and facilitating the use of restitution to reimburse victims for monetary and other losses caused by criminal conduct” (id. at 412; see People v Kim, 91 NY2d 407, 411 [1998]), and that the Penal Law has a “presumption in favor of restitution” (Horne, 97 NY2d at 411-412; see People v Tzitzikalakis, 8 NY3d 217, 220 [2007]). In that regard, section 60.27 (2) states that “[i]f the record does not contain sufficient evidence to support” a finding of the dollar amount of the fruits of the offense and actual out-of-pocket loss to the victim, “or upon request by the defendant, the court must conduct a hearing upon the issue in accordance with the procedure set forth in [CPL] 400.30” (emphasis added). Here, defendant requested a hearing and, thus, “the court was required to grant [one] pursuant to Penal Law § 60.27 (2),” at which the People would bear the burden of proof by a preponderance of the evidence and defendant would be “provide [d] . . . with a reasonable opportunity to contest the People’s evidence or supply evidence on his own behalf” (People v Consalvo, 89 NY2d 140, 146 [1996]; see Tzitzikalakis, 8 NY3d at 223).

While Penal Law § 60.27 (2) “emphatically advises that it is ‘the court’. . . which is to conduct any hearing thought necessary for this purpose” (People v Fuller, 57 NY2d 152, 158 [1982]), the court is “not . . . restricted to reliance upon only competent evidence” (Kim, 91 NY2d at 411). Rather, CPL 400.30 “embodies a liberal evidentiary standard” (Tzitzikalakis, 8 NY3d at 223) and provides that “[a]ny relevant evidence, not legally privileged, may be received regardless of its admissibility under the exclusionary rules of evidence” (CPL 400.30 [4] [emphasis added]). That is, even where “the record does not contain sufficient evidence to support such finding [of the actual amount of loss]” or the defendant has requested a hearing (Penal Law § 60.27 [2]), nothing in the statutory text requires a formal evidentiary hearing. Rather, as noted, this Court has characterized the hearing as “a reasonable opportunity [for the defendant] to contest the People’s evidence or supply evidence on his [or her] own behalf” (Consalvo, 89 NY2d at 146).

Defendant was given that opportunity here — not only did he cross-examine the People’s witness and put his own witness on the stand at the initial hearing before the JHO, but County Court offered him the opportunity to call witnesses or put in proof during the second hearing, as well. Nor is there any indication that the trial court shifted the burden of proof to defendant, as he argues. The People simply chose to meet their burden by submitting the transcript of the prior hearing and resubmitting the exhibits proffered at that hearing. Ultimately, defendant chose to rely on that same evidence. We have held that it is entirely permissible for the trial court to request that a third party, such as a probation department, ascertain relevant facts and “submit its recommendations in a written report,” so long as “in the end it is . . . the court, which alone . . . impose [s] the sentence, [that] decide [s] how much of the report, if any, to adopt and how much to reject” (Fuller, 57 NY2d at 158-159). Here, inasmuch as County Court, alone, determined the proper amount of restitution based upon relevant evidence not legally privileged, and after affording defendant a reasonable opportunity to contest the People’s evidence and submit his own proof, the hearing held upon remittal met the standard set forth in our prior cases.

Finally, defendant raises no legal error readily discernible from the record to permit this Court to review his unpreserved challenge to the delay in ordering restitution in this case (see People v Nieves, 2 NY3d 310, 315-316 [2004]; see generally CPL 380.30 [1]). Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam and Garcia concur; Judge Fahey taking no part.

Order affirmed.

      . The merits of the People’s concession are not before us on this appeal and our decision herein should not be read as either endorsing or rejecting the argument that a JHO may not, under any circumstances, conduct a restitution hearing in the first instance.

      . Inasmuch as defendant received no fruits of the offense, the court ordered him to pay reparations, not restitution. Nevertheless, this decision follows the pattern of our prior decisions and uses the term “restitution” more generally to refer to both restitution and reparation (see e.g. People v Tzitzikalakis, 8 NY3d 217, 220 [2007]; People v Consalvo, 89 NY2d 140, 144 [1996]).


author: Fahey, J. Garcia, J.

text:
    [53 NE3d 691, 33 NYS3d 814]
    The People of the State of New York, Respondent, v Joel Nelson, Appellant.
    Argued February 18, 2016;
    decided April 5, 2016

      Lynn W.L. Fahey, Appellate Advocates, New York- City (Alexis A. Ascher of counsel), for appellant.

      Kenneth P. Thompson, District Attorney, Brooklyn (Morgan J. Dennehy, Leonard Joblove and Victor Barall of counsel), for respondent.
   OPINION OF THE COURT

Fahey, J.

Criminal trials naturally provoke an excess of emotion. This may lead to potential disruption by spectators at trial. Nonetheless, it is the obligation of trial courts to protect a defendant’s right to a fair trial, and to ensure that conduct by spectators does not impair that right. On this appeal, we conclude that although the trial court should have taken action when defense counsel objected to T-shirts worn by certain spectators that bore a photograph of the deceased victim, defendant was not deprived of a fair trial.

I.

Defendant’s conviction stems from the shooting of two roommates, Mark Maldonado and Leo Walton, in their Brooklyn apartment. Maldonado testified at trial that defendant was angry with him because after defendant and Maldonado had been arrested together for shoplifting, Maldonado was released on bail, but defendant remained in jail for several months. Maldonado attempted to explain to defendant that he had tried to secure defendant’s release, but defendant was skeptical.

On March 20, 2008, defendant asked Maldonado if he could stay the night at Maldonado’s apartment, and Maldonado agreed. When they arrived at the apartment, Maldonado’s roommate, Walton, was at home. Maldonado made defendant a drink and left defendant in the living room of the apartment with Walton. Maldonado went into the bedroom with his girlfriend and locked the bedroom door. After approximately 15 minutes, Maldonado heard three gunshots in the living room. Maldonado told his girlfriend to seek cover next to the bed. Defendant then kicked in the bedroom door and shot Maldonado once in the head. Maldonado attempted to seek shelter behind a closet door, but defendant shot him three more times, striking him in his chest and legs. Defendant then fled the apartment.

Walton had been shot three times in the back of the head and died from his injuries. Maldonado survived after receiving medical treatment. The People’s proffered motive at trial was that defendant shot Maldonado over his anger at being left in jail and killed Walton to eliminate a witness.

Defendant was apprehended two days later, and he gave oral, written, and videotaped statements to police. In those statements, he claimed that he had heard rumors that Maldonado believed him to be a “snitch” and wanted to kill him. When defendant confronted Maldonado about the rumors, Maldonado assured him that they were not true and invited defendant back to his apartment. Defendant stated that once they arrived there, Maldonado fired multiple shots at defendant with a .22 caliber handgun, but defendant ducked, and the shots hit Walton instead. According to defendant, he then got up from the floor, pulled from his waistband the .380 caliber handgun he was carrying, and followed Maldonado into the bedroom, where he fired at Maldonado four times.

At trial, defendant raised a justification defense. The People presented evidence at trial, however, that was inconsistent with that defense. According to that evidence, the bullets recovered from the bodies of Walton and Maldonado, as well as the bullets found at the scene, were all fired from a .22 caliber handgun and could not have been fired from a .380 caliber weapon. All seven shell casings found at the scene were also fired from the same .22 caliber handgun.

On the last day of trial, after defense counsel’s summation, counsel asked for a sidebar and noted that three members of Walton’s family who were observing the trial were wearing T-shirts bearing Walton’s photograph and the phrase “Remembering Leo Walton.” Counsel asked that the spectators be required to change their shirts and argued that they were trying to “inflame” or “influence” the jury. The prosecutor opposed the request.

The court refused to instruct Walton’s family members to remove the shirts. The court noted that the spectators were seated quietly and had not drawn attention to themselves or their shirts. The court also stated that Walton’s family members had worn the shirts on previous occasions during the trial but that counsel had not brought the shirts to the court’s attention or requested any relief on those dates. When counsel protested that the shirts had not been worn before that day, the court found “as a matter of fact that one of the females has worn this shirt for at least three court dates.” The court characterized defense counsel’s application as a “disingenuous” attempt to gain a strategic advantage before the People’s summation.

The jury found defendant guilty of murder in the second degree for the death of Walton and assault in the first degree for the shooting of Maldonado. Before sentencing, defendant moved pursuant to CPL 330.30 to set aside the verdict. Defendant argued, among other things, that by wearing the T-shirts, Walton’s family members had attempted to improperly influence the jury. The court denied the motion at sentencing, noting that the family members were seated in the second row of the gallery, that they had not called attention to themselves in any way, and that most of the family members were wearing an outer garment on top of the T-shirt.

The Appellate Division affirmed, with one Justice dissenting (.People v Nelson, 125 AD3d 58 [2d Dept 2014]). The Appellate Division was troubled by the trial court’s failure to alert counsel to the issue when it first noticed the shirts, and stated that the “better course would have been to immediately inform Walton’s family members that their conduct could potentially imperil the legitimacy of the trial, and give them an opportunity to voluntarily acquiesce to defense counsel’s request, thus obviating the need for explicit direction from the trial court” (id. at 63). The Court nevertheless declined to create a per se rule requiring reversal “whenever a spectator brings a depiction of a deceased victim into a courtroom” because “each particular instance of challenged conduct calls for a sui generis determination of its potential effect on the jury, made in light of the particular circumstances of the case” (id.). The Court held that, under the particular circumstances of the case, the trial court’s determination “that the spectator conduct did not threaten the ability of the jury to remain impartial” was not error (id. at 64).

The dissenting Justice agreed “that a per se rule compelling reversal in every case involving such a display is not tenable” (id. at 67 [Dickerson, J., dissenting]). The dissent disagreed, however, with the conclusion that defendant was not deprived of his fundamental right to a fair trial under the circumstances (see id. at 70-71).

The dissenting Justice granted defendant leave to appeal to this Court (2015 NY Slip Op 68346[U] [2d Dept 2015]). We now affirm.

II.

We first address the threshold issue whether defendant’s contention is properly preserved for our review. Defendant contends that the trial court should have taken action not only upon defense counsel’s objection, but also when the trial court first noticed the shirts, before counsel objected. Defendant asserts that this latter part of his contention is preserved for appellate review pursuant to CPL 470.05 (2), which provides that a question of law is presented when, “in re[s]ponse to a protest by a party, the court expressly decide [s] the question raised on appeal.”

Defendant confuses the trial court’s factual observations with a legal ruling. Upon defense counsel’s objection to the shirts, the trial court made a factual observation that at least one member of Walton’s family had worn the shirt on previous days. The trial court did not make a legal ruling that it had no obligation to act on those previous dates, nor did defendant argue that the trial court was obligated to take action sua sponte. Defendant did not, for example, move for a mistrial on the ground that the wearing of the shirts on previous days had deprived him of a fair trial. The language of CPL 470.05 (2) upon which defendant relies therefore is inapplicable.

Trial courts have the inherent authority and the affirmative obligation to control conduct and decorum in the courtroom, in order to promote the fair administration of justice for all (see generally Matter of Katz v Murtagh, 28 NY2d 234, 238-240 [1971]; People v Mendola, 2 NY2d 270, 276 [1957]; People v Jelke, 308 NY 56, 63 [1954]; 22 NYCRR 100.3 [B] [2]). Furthermore, “one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial” (Taylor v Kentucky, 436 US 478, 485 [1978]). It is the duty of the trial court to protect the defendant’s right to a fair trial, and to ensure that spectator conduct does not impair that right, regardless of whether defense counsel has noticed or objected to such conduct. Nevertheless, even where the trial court has an affirmative obligation to take certain action in order to protect a fundamental constitutional right, we have required defendants to preserve any alleged error for appellate review (see People v Alvarez, 20 NY3d 75, 80-81 [2012], cert denied 569 US —, 133 S Ct 2004 [2013], and cert denied sub nom. George v New York, 569 US —, 133 S Ct 1736 [2013]). Application of the preservation rule to spectator conduct provides the trial court with a timely opportunity to correct a problem of which it may not be aware, and also facilitates appellate review of any alleged error, inasmuch as spectator conduct often will not appear on the record. Here, defense counsel did not move for a mistrial upon learning that the spectators had worn the shirts on previous occasions, or otherwise argue that the trial court should have taken action sua sponte (cf. id. at 79, 81). This part of defendant’s appellate contention therefore is unpreserved for our review. Defendant did partially preserve his contention for appellate review, however, by objecting to the shirts during summations and requesting that the trial court take action. We therefore review only that part of his contention.

III.

The United States Supreme Court has declined to create, a federal standard for evaluation of spectator conduct claims. In Carey v Musladin (549 US 70 [2006]), the Supreme Court held that “the effect on a defendant’s fair-trial rights of. . . spectator conduct . . . is an open question in our jurisprudence” (id. at 76). The Court reasoned that the test it had established in Estelle v Williams (425 US 501 [1976], reh denied 426 US 954 [1976]) and Holbrook v Flynn (475 US 560 [1986]) for the effect of potentially prejudicial courtroom practices on defendants’ fair-trial rights — whether the practice presents an “unacceptable risk ... of impermissible factors coming into play” — had been applied only to “state-sponsored courtroom practices” (Musladin, 549 US at 75-76 [internal quotation marks omitted]). The Supreme Court observed that it had never applied the Williams and Flynn framework to spectator conduct (see id. at 76). In other words, the Supreme Court left resolution of spectator conduct issues to the state courts.

As the Supreme Court recognized in Musladin, “[r]eflecting the lack of guidance from [that] Court, lower courts have diverged widely in their treatment of defendants’ spectator-conduct claims” (id. at 76). Some courts have applied the Williams and Flynn framework to claims that spectator conduct deprived the defendant of a fair trial (see e.g. United States v Farmer, 583 F3d 131, 150 [2d Cir 2009], cert denied 559 US 1058 [2010]; Norris v Risley, 918 F2d 828, 830-834 [9th Cir 1990]; Overstreet v State, 877 NE2d 144, 158-159 [Ind 2007], cert denied 555 US 972 [2008]; State v Lord, 161 Wash 2d 276, 289-290, 165 P3d 1251, 1258-1259 [2007]). Other courts have considered whether the trial court abused its discretion in responding to spectator conduct, whether the spectator conduct caused the defendant to suffer actual prejudice or deprived the defendant of a fair trial, or some combination of those considerations (see e.g. Commonwealth v Sanchez, 614 Pa 1, 39-40, 36 A3d 24, 47-48 [2011], cert denied 568 US —, 133 S Ct 122 [2012]; State v Iromuanya, 282 Neb 798, 827-829, 806 NW2d 404, 432-433 [2011]; Allen v Commonwealth, 286 SW3d 221, 229-230 [Ky 2009]; Lonergan v State, 281 Ga 637, 640, 641 SE2d 792, 794-795 [2007]; State v Speed, 265 Kan 26, 47-48, 961 P2d 13, 29-30 [1998]; State v Braxton, 344 NC 702, 709-710, 477 SE2d 172, 176-177 [1996]; State v Franklin, 174 W Va 469, 474-475, 327 SE2d 449, 454-455 [1985]).

Despite these divergent methods, the common thread in these cases is that courts have refused to apply any per se rule of reversal to spectator conduct. They have consistently declined to hold that any particular category of spectator conduct is so inherently prejudicial that it necessarily deprives the defendant of a fair trial. Even those courts that have relied upon the Williams /Flynn framework have evaluated the particular circumstances of each case in determining whether the spectator conduct was so inherently prejudicial as to deprive the defendant of a fair trial (see Farmer, 583 F3d at 149-150; Norris, 918 F2d at 831-832; Overstreet, 877 NE2d at 158-159; Lord, 161 Wash 2d at 289-291, 165 P3d at 1258-1259).

Whether the trial court should intervene, and what intervention is appropriate, must depend upon the facts and circumstances of each particular case. The trial court may consider such factors as: the particular nature of the spectator conduct at issue; how many spectators are involved; the duration of the conduct; whether the involved spectators have called attention to themselves in some way; where the spectators are seated in the courtroom; whether the jury can see or did see the spectator conduct; whether the involved spectators are part of some recognizable organization or group; whether the spectator conduct is the result of some intentional effort to influence the jury or merely an unintended display of emotion; and whether intervention will correct an ongoing problem or will simply serve to highlight a brief instance of misconduct for the jury. This list is not exhaustive, inasmuch as we do not presume to anticipate all of the various forms of spectator conduct that may occur during any given trial.

If the trial court decides to act, appropriate intervention may include such actions as a curative instruction to the jury, ordering the spectators to remove the display, removal of the offending spectators from the courtroom, or questioning of the jurors to determine whether they were influenced by the spectator conduct. If the trial court determines, in its discretion, that the spectator conduct was so prejudicial that no other form of curative action can ensure the defendant’s right to a fair trial, then a mistrial will be warranted. The appropriate action will, of course, be informed by any request from counsel. In deciding whether to intervene and what intervention is appropriate, the trial court’s paramount concerns must be the protection of the defendant’s fundamental right to a fair trial and the court’s obligation to preserve order and decorum in the courtroom.

Appellate courts evaluating a defendant’s contention that the trial court erred in refusing to intervene in spectator conduct, or did not intervene appropriately, should review the trial court’s action or inaction for abuse of discretion. The trial court is best situated to take all the circumstances into account and to determine the appropriate intervention (cf. People v Ming Li, 91 NY2d 913, 917 [1998]; Matter of Plummer v Rothwax, 63 NY2d 243, 250 [1984]).

One factor that the trial court should not consider, however, in deciding whether and how to intervene in spectator conduct, is any First Amendment rights of the spectators themselves.

“The court is not a public hall for the expression of views, nor is it a political arena or a street. It is a place for trial of defined issues in accordance with law and rules of evidence, with standards of demeanor for court, jurors, parties, witnesses and counsel. All others are absolutely silent nonactors with the right only to use their eyes and ears” (Katz v Murtagh, 28 NY2d at 240).

No court should tolerate a vocal outburst by a spectator on the ground that the spectator had a First Amendment right to express his or her views on the proceedings. The court similarly should not entertain such concerns when the spectator conduct is nonverbal (see Musladin, 549 US at 79 [Stevens, J., concurring]).

IV.

We now turn to the specific spectator conduct at issue in this case: spectator displays of a deceased victim’s photograph. We have held that portraits or photographs of a deceased victim, taken while the victim was alive, are generally inadmissible at trial unless “relevant to a material fact to be proved at trial” (People v Stevens, 76 NY2d 833, 835 [1990]). This is because such photographs may “arouse the jury’s emotions” (id.).

A similar risk is presented by images of a deceased victim displayed by spectators in the courtroom, either on their clothing or by some other method. Such depictions may be viewed by the jury as an appeal to sympathy for the deceased victim and the spectators wearing the display, and perhaps as a request to hold the defendant responsible for their loss (see Musladin, 549 US at 83 [Souter, J., concurring]; Meghan E. Lind, Hearts on Their Sleeves: Symbolic Displays of Emotion by Spectators in Criminal Trials, 98 J Crim L & Criminology 1147, 1153-1154 [2008]). We therefore conclude that spectator displays of a deceased victim’s portrait or photograph should be prohibited in the courtroom during trial. Here, the trial court erred in failing to instruct the spectators to remove the shirts or cover them upon defense counsel’s objection.

V.

Nevertheless, we agree with the Appellate Division that a per se rule requiring reversal whenever a spectator displays a photograph of a deceased victim during trial is untenable (see Nelson, 125 AD3d at 63; id. at 67-68 [Dickerson, J., dissenting]). We further decline to apply the Williams and Flynn framework to hold that such displays are necessarily so inherently prejudicial that they require reversal and a new trial in every case (see Musladin, 549 US at 75-76). That framework, at least as traditionally applied, suggests that certain courtroom conduct is so inherently prejudicial that it requires reversal and a new trial whenever such conduct occurs during trial (see Williams, 425 US at 504-505). In other words, that framework presumes both that there was error and that the error cannot be harmless because the defendant has been deprived of a fair trial thereby (see People v Crimmins, 36 NY2d 230, 238 [1975]).

We conclude, however, that although spectator displays depicting a deceased victim should be prohibited in the courtroom during trial, and although the trial court here erred in refusing to intervene upon defense counsel’s request, the error is subject to harmless error analysis. Defendant contends that the deprivation of his right to a fair trial can never be considered harmless. We agree only insofar as there can be no harmless error analysis if an appellate court concludes that spectator misconduct was so egregious and the trial court’s response so inadequate that the defendant was deprived of a fair trial. Where “there has been such error of a trial court. . . or such other wrong as to have operated to deny any individual defendant his fundamental right to a fair trial, the reviewing court must reverse the conviction and grant a new trial,” without regard to whether the proof of guilt was overwhelming or whether “the errors contributed to the defendant’s conviction” (Crimmins, 36 NY2d at 238). Here, however, the spectator conduct was not so egregious that defendant was deprived of a fair trial.

A per se rule of reversal is inappropriate in the context of spectator displays of a deceased victim’s image because such displays may vary widely. For example, the display could range from a small button worn on a spectator’s clothing to a life-size image. A trial court’s refusal to intervene in every such display upon defense counsel’s objection is error. However, not every such display requires the drastic remedy of a mistrial, or an appellate reversal. The trial court or the appellate court, respectively, must make that determination based on the unique circumstances of each case.

Under the particular circumstances of this case, we conclude that the trial court’s error in failing to instruct the spectators to remove or cover the shirts upon defense counsel’s objection is harmless. Consequently, defendant was not deprived of a fair trial.

The evidence of defendant’s guilt is overwhelming. In his statements to the police, defendant admitted that he had shot Maldonado. The People presented evidence that defendant did not shoot Maldonado in self-defense. Defendant admitted that he followed Maldonado into the bedroom after Maldonado had retreated. Moreover, the lock on Maldonado’s bedroom door was damaged, consistent with its having been kicked in, and the bullet holes in and near the closet door corroborated Maldonado’s testimony that he had sought shelter from defendant in the bedroom closet. The forensic evidence corroborated Maldonado’s testimony that it was defendant, not Maldonado, who killed Walton. The bullets recovered from Walton’s body, Maldonado’s body, and the apartment were all fired from a .22 caliber handgun. All seven shell casings found at the scene came from a .22 caliber handgun, and none of the bullets or shell casings came from a .380 caliber handgun. Moreover, all the shell casings originated from the same .22 caliber handgun, corroborating Maldonado’s testimony that only defendant fired a gun in the apartment.

Furthermore, there is no significant probability that the trial court’s failure to instruct the spectators to remove or cover the T-shirts upon defense counsel’s request contributed to the verdict. The record reflects that only a few members of Walton’s family were wearing the shirts. The shirt was not particularly inflammatory, and its inscription — “Remembering Leo Walton” — did not ask the jury to convict defendant or otherwise convey a message to the jury regarding the spectators’ beliefs about defendant’s guilt. The spectators did not call attention to themselves or their shirts in any way. Further, the trial court found that the spectators were seated in the second row of the courtroom and that most of them were wearing an outer garment over the shirt, such that the jurors would not have been able to see the shirts in their entirety.

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

Garcia, J.

(concurring). This case calls upon the Court to determine the standard applicable to conduct by courtroom spectators that may pose a risk to the defendant’s right to a fair trial. Supreme Court decisions in this area have left us with a “clean slate” upon which to write such a rule (see United States v Farmer, 583 F3d 131, 149 [2009], cert denied 559 US 1058 [2010]).

I concur with the majority that defendant was not deprived of a fair trial. I write separately because I would adopt the standard the Supreme Court applies to state-sponsored courtroom practices that raise similar issues instead of the abuse of discretion standard applied by the majority (see majority op at 369-370). Under this standard, appellate courts would examine the totality of the circumstances to determine whether the spectator conduct at issue presents “an unacceptable risk ... of impermissible factors coming into play” (Holbrook v Flynn, 475 US 560, 570 [1986] [internal quotation marks and citation omitted]). The majority’s approach is thoughtful and, as it applies to these facts, correctly focuses on the trial court’s failure to take remedial measures. An abuse of discretion standard may lead, however, to inconsistent rulings by trial courts and permits harmless error analysis by appellate courts even though spectator conduct may implicate a defendant’s “self-standing” right to a fair trial (People v Crimmins, 36 NY2d 230, 238 [1975]).

The law with respect to courtroom conduct by state actors is clear. In several habeas corpus proceedings, the Supreme Court considered whether such conduct in the courtroom led to a defendant being deprived of a fair trial. In Estelle v Williams (425 US 501 [1976]), the Court confronted a defendant’s claim that he was “compell[ed] ... to stand trial in jail garb” (id. at 505). Holbrook v Flynn involved a jury trial where four uniformed law enforcement officers sat “in the first row of the spectators’ section,” ostensibly for security purposes (475 US at 562). The Court’s analysis in both cases was grounded in the presumption of innocence:

“The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice. . . .
“To implement the presumption, courts must be alert to factors that may undermine the fairness of the fact-finding process. In the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt” (Williams, 425 US at 503 [citation omitted]).

Certain conduct, the Supreme Court found, was so inherently prejudicial that it denied the defendant a fair trial. In analyzing whether that constitutional violation had taken place, the Court explained “the question must be not whether jurors actually articulated a consciousness of some prejudicial effect, but rather whether ‘an unacceptable risk is presented of impermissible factors coming into play’ ” (Flynn, 475 US at 570, quoting Williams, 425 US at 505).

Also common in Flynn and Williams was the fact that conduct complained of was perpetrated by state actors, namely, prison or law enforcement officials. A subsequent habeas corpus proceeding, however, involving spectator conduct — trial attendees wearing buttons with the victim’s photograph — did reach the Supreme Court, but the issue of what standard should apply to evaluate that conduct was not addressed because of the procedural posture of the case (see Carey v Musladin, 549 US 70, 76 [2006]). The Court explained it “ha[d] never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial” (id. [footnote omitted]). As a result, the Court determined that the conclusion of the state appellate court in the defendant’s underlying criminal action was not “contrary to or an unreasonable application of clearly established federal law as determined by this Court” as required for federal habeas relief (id. at 77; see Farmer, 583 F3d at 149-150 [“Carey v. Musladin . . . left it to lower courts to address claims” based upon “courtroom displays by private actors”]).

Concurring in the judgment in Musladin, Justice Souter asserted that Williams and Flynn evinced an “intent to adopt a standard at [a] general and comprehensive level . . . that . . . reaches the behavior of spectators” (Musladin, 549 US at 82 [Souter, J., concurring]; see also id. at 78-79 [Stevens, J., concurring]). I agree, and would apply the Williams/Flynn standard here.

As the Musladin majority noted, the inquiry in Williams and Flynn asked “whether the practices furthered an essential state interest,” suggesting the standard “applied] only to state-sponsored practices” (id. at 76). Certainly, the question of state interest is a factor with no relevance to the facts and circumstances here. Nevertheless, as Justice Souter concluded, the trial court “has an affirmative obligation to control the courtroom and keep it free of improper influence” whether the improper conduct is by. a state actor “or an individual” (id. at 82 [Souter, J., concurring]).

Accordingly, with respect to conduct of private actors in the courtroom, the same standard should apply to answer the critical question of whether the spectator conduct presented “ ‘an unacceptable risk ... of impermissible factors coming into play’ ” (id. at 75 [citation omitted]).

Answering that question, as the Supreme Court observed in Williams, is challenging:

“The actual impact of a particular practice on the judgment of jurors cannot always be fully determined. But this Court has left no doubt that the probability of deleterious effects on fundamental rights calls for close judicial scrutiny. Courts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience” (425 US at 504 [citations omitted]).

Three factors appear most relevant when assessing the prejudicial effect of the conduct at issue. First, courts should examine the nature of the conduct or display and its potential to influence the jury verdict (see e.g. Woods v Dugger, 923 F2d 1454, 1458-1460 [11th Cir 1991] [considering prejudice from presence of uniformed off-duty prison guards attending, as spectators, the trial of the defendant for murder of a guard]; State v Allen, 182 Wash 2d 364, 385-386, 341 P3d 268, 278-279 [2015] [“Silent showings of sympathy or support do not pose an unacceptable threat to the defendant’s right to a fair trial so long as the display does not advocate for guilt or innocence”]; People v King, 215 Mich App 301, 305, 544 NW2d 765, 768 [1996] [“We are not persuaded . . . that the wearing of the buttons, which were less than three inches in diameter, . . . could have influenced the panel”]). Second, appellate courts must consider whether the record of the courtroom situation is adequate to facilitate review (see e.g. State v Iromuanya, 282 Neb 798, 823, 806 NW2d 404, 429 [2011]; State v Speed, 265 Kan 26, 48, 961 P2d 13, 29-30 [1998]; Nguyen u State, 977 SW2d 450, 457 [Tex Ct App 1998], affd on other grounds 1 SW3d 694 [Tex Crim App 1999]). Third, and not necessarily determinative, appellate courts should consider the response, if any, by the trial court to the conduct (see e.g. Farmer, 583 F3d at 150 [“Moreover, once defense counsel called the T-shirts to the district court’s attention, the court instructed the government ‘to urge (the spectators) not to come into this courtroom with shirts with the picture’ ”]; People v Houston, 130 Cal App 4th 279, 316, 29 Cal Rptr 3d 818, 848 [2005]; State v Franklin, 174 W Va 469, 475, 327 SE2d 449, 455 [1985]).

Applying the first factor, the offending shirts in this case bore the victim’s photograph and the phrase “Remembering Leo Walton.” Such images could “raise a risk of improper considerations” inasmuch as the photograph and written message could be construed as “an appeal for sympathy . . . and a call for some response” that a juror might interpret to mean “a verdict of guilty” (Musladin, 549 US at 82-83 [Souter, J., concurring]; see generally People v Stevens, 76 NY2d 833, 835 [1990] [“photographs of the victim taken while he or she was alive . . . may . . . arouse the jury’s emotions”]). As other courts confronted with similar displays have noted, however, jurors were just as “likely to have viewed the buttons as signs of grief instead of a collective call for . . . conviction” (Iromuanya, 282 Neb at 828, 806 NW2d at 432). The spectators were silent, evidently few in number, and their T-shirts were partially covered. Moreover, unlike the wearing of law enforcement uniforms by persons in the gallery, these T-shirts gave no suggestion of state approval of the spectator’s message (cf. Woods, 923 F2d at 1458-1460 [noting “(a)bout half of the spectators appear to be wearing prison guard uniforms” and “(t)he officers in this case were there ... to communicate a message to the jury” even though “no state interest c(ould) justify the uniformed presence of these off-duty correctional officers” (footnotes omitted)]).

Next, the limited record makes the potential impact of the conduct more difficult to assess. Defense counsel apparently did not notice the shirts at first, and we are left with the trial court’s brief description of the T-shirts and somewhat inconsistent recounting of the spectators’ conduct in court. At summation, upon consideration of defense counsel’s and the prosecutor’s arguments, the trial court determined the conduct was not prejudicial, explaining his reasons on the record. Thereafter, at the CPL 330.30 hearing, the court clarified the record before us:

“the jury was not inflamed by the simple wearing of the [T]-shirts by members of the decedent’s family. They sat in the second row of the audience. I noticed one of the grieving members of the family wearing the shirt . . . several times.
“I guess now it would be appropriate [for me] to make a better record of what the shirt was. It was [a] white [T-shirt] with a silk screen with a picture of the deceased with some written language on it.
“I had noticed that shirt, [but] couldn’t read what was written on it. It was not flauntily displayed in front of the jury, nor in any way did any members of the family bring undue attention to it.
“In fact, most of the members of the family had an outer garment on top of the [T]-shirt. So it wasn’t even capable of seeing the entire thing.”

We know nothing about how well, if at all, the jury could see the T-shirts. Moreover, only four people wore the shirts, which does not on this record amount to “a formidable, albeit passive, influence on the jury” (Franklin, 174 W Va at 474-475, 327 SE2d at 454-455 [noting “from ten to thirty MADD demonstrators remained in court throughout the trial” for an alcohol-related vehicular homicide “and sat directly in front of the jury. Some cradled sleeping infants in their laps and all prominently displayed their MADD buttons”]).

Lastly, I agree with my colleagues that “[t]rial courts have the inherent authority and the affirmative obligation to control conduct and decorum in the courtroom, in order to promote the fair administration of justice for all” (majority op at 367). Unquestionably, the better practice here would have been for Supreme Court to have responded to the spectator conduct by taking steps to end the display, but I cannot agree that all spectator displays of a deceased victim’s photograph should be banned outright (see majority op at 370-371). This is not to say that any particular memorial or other display by spectators is permissible, or that certain conduct necessitates a specific response. The risk of prejudice presented by spectator conduct should always be evaluated on a case-by-case basis (see Musladin, 549 US at 83 [Souter, J., concurring]; Iromuanya, 282 Neb at 827, 806 NW2d at 432 [noting that Justice Souter “declined to embrace a per se rule” regarding memorial buttons and instead concluded that the issue in each case is whether the risk is unacceptable]).

In sum, after considering the nature of the conduct and the record presented, and factoring in the trial court’s response, or rather lack thereof, to the conduct, there is no reasonable probability that the conduct by the spectators created an unacceptable risk to defendant’s right to a fair trial. The spectators’ silent display was not overwhelming and seemed to be in the nature of an expression of sympathy, not a play to the passion of the jury. Expressions of grief by a decedent’s family members and loved ones are to be expected — though not necessarily tolerated — during a homicide trial. Trial courts should continue to take measures to address the risks of such conduct and avoid even the suggestion that improper factors may have influenced the jury (see e.g. People v Pennisi, 149 Misc 2d 36, 37, 40 [Sup Ct, Queens County 1990] [trial court determined that ribbon corsages worn by family members of victim and other spectators could not be worn in the courtroom]). Nevertheless, the court’s failure to respond here, while not optimal, is not sufficient grounds for a new trial.

Chief Judge DiFiore and Judges Abdus-Saeaam and Stein concur; Judge Garcia concurs in result in an opinion, in which Judges Pigott and Rivera concur.

Order affirmed.