author: Rivera, J. Pigott, J.

text:
    [18 NE3d 391, 993 NYS2d 680]
    The People of the State of New York, Respondent, v Jose Maldonado, Appellant.
    Argued June 4, 2014;
    decided July 1, 2014

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City {Joshua M. Levine of counsel), for appellant.
    The evidence of depraved indifference murder was legally insufficient given testimony establishing that appellant consistently tried to avoid hurting anyone while fleeing from police. (People v Prindle, 16 NY3d 768; People v Feingold, 7 NY3d 288; People v Suarez, 6 NY3d 202; People v Gomez, 65 NY2d 9; People v Heidgen, 22 NY3d 259; People v Richins, 29 AD3d 1170; People v Wells, 53 AD3d 181; People v Alvarado, 71 AD3d 498; People v Mooney, 62 AD3d 725.)

      Kenneth P. Thompson, District Attorney, Brooklyn {Diane R. Eisner, Leonard Joblove and Victor Barall of counsel), for respondent.
    The evidence was legally sufficient to support defendant’s conviction for depraved indifference murder. (People v Contes, 60 NY2d 620; People v Gomez, 65 NY2d 9; Jackson v Virginia, 443 US 307; People v Carr-El, 99 NY2d 546; People v Ford, 66 NY2d 428; People v Feingold, 7 NY3d 288; People v Suarez, 6 NY3d 202; People v Barboni, 21 NY3d 393; People v Bueno, 18 NY3d 160.)
   OPINION OF THE COURT

Rivera, J.

In this appeal, we conclude that the evidence was legally insufficient to support defendant’s conviction for depraved indifference murder because the circumstances of this high-speed vehicular police chase do not fit within the narrow category of cases wherein the facts evince a defendant’s utter disregard for human life. Accordingly, we modify the Appellate Division’s order by reducing defendant’s conviction to manslaughter in the second degree.

L

Police pursued defendant Jose Maldonado through the streets of Greenpoint, Brooklyn, a mixed commercial-residential neighborhood, soon after he stole a minivan from outside its owner’s residence. This five-minute, midday chase led to defendant’s fatal collision with a pedestrian and his prosecution and conviction for depraved indifference murder. Defendant concedes that the evidence established his reckless driving but argues that it only supports a conviction for manslaughter in the second degree. Thus, in this appeal, we are only concerned with whether the proof at trial evinced the statutorily required mental state to sustain his conviction for depraved indifference murder.

It is undisputed that defendant consistently drove well above the 30 miles per hour speed limit and violated numerous traffic rules as he attempted to evade capture by the police. The chase began when defendant ran a red light, accelerated through intersections, and went the wrong way down two one-way streets. The police followed with lights and sirens activated as defendant drove towards Manhattan Avenue, a major thoroughfare and commercial hub. Defendant turned onto the avenue where, according to witnesses, there was heavy vehicular and pedestrian traffic. As he drove north, defendant swerved into the southbound lane to pass slower vehicles and avoid congestion, and then shifted back into the northbound lane. Witnesses estimated that he was driving 40 to 50 miles per hour.

A few blocks up Manhattan Avenue, defendant ran a second red light and narrowly avoided hitting a pedestrian in a crosswalk. According to witnesses, defendant did not brake or slow down. Instead, he accelerated north and again swerved across the double-yellow lines into the southbound lane to avoid slower moving vehicles. A driver going south testified that defendant did not slow down when he entered the opposing lane of traffic. As a consequence, the driver had to swerve to the side of the road to avoid a collision. Once clear of congestion, defendant swerved back into the northbound lane.

A block later, defendant ran a third red light and struck a woman in a crosswalk. The victim hit the passenger side of the minivan’s windshield with such force that her body landed more than 100 feet down the avenue. She died at the scene. At that point, the police stopped following defendant to render aid to the victim.

Defendant continued accelerating north on Manhattan Avenue, again swerving into the southbound lane. A driver headed south testified that defendant sped towards him at a rate of about 50 to 70 miles per hour. As a result, he had to swerve into the northbound lane to avoid a head-on collision with defendant. After the driver swerved, defendant’s escape routes were apparently blocked by cars in both the north and southbound lanes.

The chase ended a few blocks from where defendant struck the pedestrian, when defendant crashed the minivan into a parked car to avoid hitting other vehicles. The impact pushed the parked car over the cars parked behind it. Defendant, still trying to escape capture, ran out of the minivan and down a nearby street, followed by the driver who had just swerved to avoid a collision with defendant and a group of pedestrians who witnessed the crash. The group caught up with defendant and tackled and held him until the police arrived and put him under arrest.

At the precinct, defendant admitted that he stole the minivan, exceeded the speed limit, and swerved into oncoming traffic as he fled the police. In explaining his driving, defendant said he tried to avoid hitting cars and pedestrians, and that he did not know the neighborhood well and drove down the one-way streets by mistake. Defendant said he was lost when he ended up on Manhattan Avenue, and that he was avoiding cars as he evaded the police. According to defendant, he was going against traffic and looking in his rearview mirror for the police immediately before he struck the victim. When he looked forward again, defendant said he saw the victim and that he thought he “hit the girl in the hand or something.” When he saw more people and traffic two blocks later, defendant decided to crash into the parked car to avoid hurting anyone else. He also expressed remorse for his actions.

Defendant was charged with numerous crimes arising from" the theft of the minivan and the death of the pedestrian, including murder in the second degree (depraved indifference murder) (Penal Law § 125.25 [2]), manslaughter in the second degree (Penal Law § 125.15 [1]), criminally negligent homicide (Penal Law § 125.10), unlawful fleeing a police officer in a motor vehicle in the third degree (Penal Law § 270.25), unlawful fleeing a police officer in a motor vehicle in the first degree (Penal Law § 270.35), grand larceny in the fourth degree (Penal Law § 155.30 [8]), and criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [5]). At trial, defendant moved at the close of the People’s case and again after defense rested, for dismissal of the depraved indifference murder charge on the ground that the People failed to establish the requisite mental state. In support of the motions, he argued that the evidence showed he repeatedly swerved to avoid hitting pedestrians and cars, indicating that his driving was merely reckless. Supreme Court denied the first motion, reserved judgment on the second and submitted, over defendant’s objection, a charge of depraved indifference murder to the jury along with other relevant charges.

The jury found defendant guilty of depraved indifference murder, unlawful fleeing a police officer in a motor vehicle in the first degree, and grand larceny in the fourth degree. After the verdict, defendant renewed his motion for a trial order of dismissal for depraved indifference murder. Supreme Court denied the motion, finding the evidence in this case comparable to that in People v Gomez (65 NY2d 9 [1985]), and similarly sufficient to support a conviction of depraved indifference murder. Supreme Court sentenced defendant to an aggregate prison term of 20 years to life.

Defendant appealed, asserting legal sufficiency and weight of the evidence challenges to his depraved indifference murder conviction. The Appellate Division affirmed (see People v Maldonado, 100 AD3d 657 [2d Dept 2012]). A Judge of this Court granted defendant leave to appeal (21 NY3d 1044 [2013]).

IL

A.

A person is guilty of depraved indifference murder when, “[u]nder circumstances evincing a depraved indifference to human life, [such person] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law § 125.25 [2]). Depraved indifference is a culpable mental state which “is best understood as an utter disregard for the value of human life” (People v Feingold, 7 NY3d 288, 296 [2006] [internal quotation marks omitted]). Thus, “a depraved and utterly indifferent actor is someone who does not care if another is injured or killed” (id. [internal quotation marks and citation omitted]). Due to the wanton nature of this mens rea, “depraved indifference murder properly applies only to a small, and finite, category of cases where the conduct is at least as morally reprehensible as intentional murder” (People v Suarez, 6 NY3d 202, 207 [2005]).

A defendant who knowingly pursues risky behavior that endangers others does not necessarily evince depraved indifference by engaging in that conduct. As we have explained, “[a] person who is depravedly indifferent is not just willing to take a grossly unreasonable risk to human life — that person does not care how the risk turns out” (People v Lewie, 17 NY3d 348, 359 [2011]). “The element of depraved indifference to human life comprises both depravity and indifference, and has meaning independent of recklessness and the gravity of the risk created” (People v McMillon, 31 AD3d 136, 139 [2d Dept 2006], lv denied 7 NY3d 815 [2006]). In short, the mens rea of depraved indifference will rarely be established by risky behavior alone.

B.

Defendant concedes that his conduct was reckless, but contends that the evidence failed to establish the depravedly indifferent mental state required by the statute. We agree that under the circumstances of this case, there was insufficient evidence to support defendant’s conviction for depraved indifference murder.

A conviction is legally insufficient where, viewing the record in the light most favorable to the prosecution, there is no “valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (People v Danielson, 9 NY3d 342, 349 [2007]; see People v Williams, 84 NY2d 925, 926 [1994]; People v Contes, 60 NY2d 620, 621 [1983]). Where the People fail to offer evidence evincing a defendant’s utter disregard for human life there can be no basis for a jury’s finding of guilt on a depraved indifference murder charge. Without such evidence, a jury cannot reasonably conclude that the defendant did not care whether someone lived or died and as a consequence was depravedly indifferent.

Here, defendant sought to mitigate the consequences of his reckless driving because he “actively attempt[ed] to avoid hitting other vehicles” by swerving, conduct which establishes a lack of depraved indifference (People v Heidgen, 22 NY3d 259, 276 [2013]; see People v Prindle, 16 NY3d 768, 771 [2011]). Although defendant drove on the wrong side of the road, this conduct was episodic and part of his effort to avoid other vehicles while evading the police. This conscious avoidance of risk is the antithesis of a complete disregard for the safety of others. Defendant was unquestionably reckless, but he was not depravedly indifferent as we have defined and interpreted that state of mind. Unlike our dissenting colleagues, we conclude that, given this evidence, a rational jury could not have reasonably found depraved indifference beyond a reasonable doubt.

Our analysis in Heidgen illustrates why the facts of defendant’s case are insufficient to support a different conclusion. In Heidgen, we upheld three depraved indifference murder convictions involving intoxicated drivers. We concluded the evidence sufficiently established the respective defendants’ complete disregard for the risk created by their reckless driving and their total lack of concern for the life and welfare of others (see Heidgen, 22 NY3d at 267). Two of the defendants in Heidgen drove after midnight, in the early morning hours, at excessive speeds on a parkway or major thoroughfare (see id. at 268, 273). The third defendant sped on a local road late at night (see id. at 271-272). Each of the defendants drove a significant distance in the wrong direction, directly towards oncoming traffic, and did not swerve to avoid collisions with other vehicles.

In People v Heidgen, the defendant “drove the wrong way on the highway for over two miles without reacting to other drivers coming at him,” and “appeared to follow, or track, the headlights of oncoming vehicles” (22 NY3d at 277). The evidence showed that the defendant not only failed to move out of the way, but actually followed the other drivers’ movements as they sought to avoid colliding with him, in what we characterized as “a high speed game of chicken” (id.). The defendant in People v Taylor, sped “without headlights, on the wrong side of the road, . . . [and] did not . . . make any attempt to swerve” (id. at 271-272). In People v McPherson, the defendant “traveled about five miles in the wrong direction . . . [and] made no attempt to brake or to avoid other vehicles” (id. at 273).

Unlike the defendants in Heidgen, defendant never tracked or followed the movements of any driver, nor did he purposefully impede another driver’s efforts to avoid a collision. Defendant drove in the wrong lane for brief periods of time in order to pass other cars, not as part of a deadly game. He immediately returned to the proper lane once clear of congestion in order to avoid hitting other vehicles. Eyewitness testimony established that he repeatedly tried to avoid collisions while evading capture by the police. Although defendant swerved around cars and across lanes of traffic, he did so both to speed his flight and to avoid crashing into other vehicles or pedestrians.

Defendant’s reckless driving does not, on its own, establish the requisite mens rea of depraved indifference. If careless and unsafe driving were enough to meet this requirement, then we would have affirmed the defendant’s conviction of depraved indifference murder in People v Prindle (16 NY3d 768 [2011]), a case involving facts almost identical to those at issue before us in this appeal. Instead, in Prindle, we reduced the defendant’s conviction to manslaughter in the second degree.

In that case, the defendant led the police on a high-speed chase along highways and residential streets in Rochester (see id. at 771 [Pigott, J., dissenting]). The defendant sped, drove erratically, crossed double-yellow lines into oncoming traffic, and wove into the passing lane (id. at 772). He also barreled through several red lights and caused the drivers of other cars to swerve or stop to avoid a collision. After the police deactivated their lights and siren, the defendant continued to speed, swerved into oncoming traffic, turned onto local streets, ran a red light, and struck a truck (see id. at 772-773). Thereafter, although he had room “to navigate around [it],” the defendant hit another car and killed one of its occupants (id. at 773). Nevertheless, we concluded that the evidence failed to “evince[ ] a depraved indifference to human life” (id. at 770-771).

Like the defendant in Prindle, defendant here drove through a populated area, exceeded the speed limit, ran red lights, swerved across double-yellow lines into oncoming traffic, and drove the wrong way on one-way streets. Several witnesses testified that defendant swerved to avoid hitting other cars or pedestrians. Thus, as in Prindle where the defendant was “actively attempting to avoid hitting other vehicles,” defendant’s conduct here did not evince an utter disregard for human life (Heidgen, 22 NY3d at 276).

According to the People, defendant’s conduct was more egregious than that found in Prindle and constitutes legally sufficient evidence of his depraved indifference. In particular, the People claim that defendant showed an utter lack of concern for human life because he failed to modify his driving after narrowly missing a pedestrian. The People contend that defendant’s near-miss of a pedestrian was measurably worse than the Prindle defendant’s actual collision with a truck, because pedestrians are more vulnerable to injury than are the occupants of vehicles. The People’s creative attempt to distinguish a near-miss from an actual collision is not persuasive because, although there is a grave risk of injury in either case, gravity of risk alone is not determinative of the requisite mental state.

What matters in a depraved indifference analysis is that a defendant — even one “willing to take a grossly unreasonable risk to human life” — “does not care how the risk turns out” (Lewie, 17 NY3d at 359). Certainly, the defendant in Prindle was aware of the risk posed by his continued reckless driving after running a red light and striking a truck in an intersection. Nevertheless, the defendant went through two more red lights before the final collision that resulted in the victim’s death. On those facts, we found the evidence legally insufficient to support a depraved indifference conviction. Here, defendant missed a pedestrian, and his driving afterwards — characterized by his efforts to swerve away from traffic and avoid collisions — does not evince a depravedly indifferent mental state.

The People also contend that, because he took his eyes off the road to check for police in the rearview mirror immediately before his collision with the victim, defendant’s conduct was more reprehensible than that of the defendant in Prindle and shows he was depravedly indifferent. We find this momentary action insufficient to transform defendant’s intent to the type of depravity required under the statute. Looking in the rearview mirror was a manifestation of defendant’s continued desire to evade the police, not his total disregard for whether his reckless driving killed someone. A defendant may simultaneously intend to flee police and avoid striking other cars or pedestrians. These intents are not mutually exclusive even if, as is the case here, the attempted escape is carried out in a reckless manner. While defendant swerved into opposing lanes of traffic and exceeded the speed limit, he also “actively attempt[ed] to avoid hitting other vehicles” (Heidgen, 22 NY3d at 276). There is no indication that his conduct in doing so was motivated solely by his intent to evade capture, regardless of the risk to human life. The fact that defendant intended to avoid capture, as well as accidents, does not elevate the case to depraved indifference murder.

The People further speculate that defendant ended the chase by crashing the minivan into a parked car, not out of concern for the welfare of others, but because other cars were blocking his escape. Again, without direct evidence of defendant’s intent, the People essentially rely on evidence of defendant’s reckless driving to establish the culpable mental state. However, recklessness and depraved indifference are separate mens rea. Here, assuming the People proffered evidence indicating that defendant was aware of and disregarded the substantial risk of injury or death caused by his driving, they failed to submit evidence establishing that defendant did not care whether grievous harm resulted (see Feingold, 7 NY3d at 296). Thus, no reasonable jury could conclude that defendant was depravedly indifferent.

Nevertheless, relying on the decision of the trial court, the People contend that the facts here most closely mirror those in People v Gomez (65 NY2d at 9) and we should apply a similar analysis to uphold defendant’s depraved indifference conviction. Our analysis in Gomez, which applied the overruled Register standard, does not bind us here. Rather, our decision in Heidgen provides the appropriate basis to analyze defendant’s driving and whether there was sufficient evidence to find the requisite culpable mental state. As our discussion of Heidgen makes clear, this case is not one of the very few wherein a defendant’s “culpability is the equivalent of an intentional murderer” (Heidgen, 22 NY3d at 277).

If we accepted the People’s argument, depraved indifference murder could arguably be charged in every case where a defendant killed someone during a high-speed police chase. By its nature, a high-speed chase endangers pedestrians and other drivers and carries the potential for grave injuries and fatalities. Defendants who take part in high-speed chases violate accepted rules of the road and drive in what is generally considered a reckless manner. Yet, not every vehicular police chase resulting in death will take place under circumstances evincing the defendant’s depraved indifference. Cases of depraved indifference murder “are highly fact-specific and dependent upon the individual defendant’s particular mental state — a factor that may be extremely difficult to establish” (Heidgen, 22 NY3d at 276). Where, as here, there is no additional evidence evincing a fleeing defendant’s wanton disregard for the risk that the defendant’s reckless flight from police poses to others, a charge for depraved indifference murder should not be submitted to the jury.

Accordingly, the Appellate Division order should be modified by reducing defendant’s conviction of murder in the second degree to manslaughter in the second degree and remitting to Supreme Court for resentencing and, as so modified, affirmed.

Pigott, J.

(dissenting). Once again, a person is dead because a defendant, concerned about being arrested for theft, led police on a high-speed chase through residential neighborhoods (compare People v Prindle, 16 NY3d 768, 771-775 [2011, Pigott, J., dissenting]). And, once again, the majority treats this crime with unfathomable and unjustified leniency (compare Prindle, 16 NY3d at 769-771).

After he hot-wired and stole a minivan in a residential neighborhood in Brooklyn, defendant Jose Maldonado abruptly overtook an unmarked police vehicle near the intersection of Graham Avenue and Jackson Street. Police Officer Steven Truglio signaled for defendant to stop; as the officer approached on foot, defendant put the minivan into gear and sped off up Graham Avenue. Pursued by the police vehicle, defendant quickly exceeded the local speed limit of 30 m.p.h. and drove through a red light at Meeker Avenue. He then turned right on Driggs Avenue, driving the wrong way on this one-way street, before turning onto McGuinness Boulevard. Defendant then proceeded the wrong way on another one-way street, Engert Avenue, for three blocks, before turning onto Manhattan Avenue.

Speeding north along the avenue, and accelerating, defendant encountered extremely heavy traffic on this weekday afternoon in spring. Officer Truglio observed defendant darting from his northbound lane into the southbound lane, and swerving in and out of the oncoming traffic in his effort to escape. A bystander estimated that defendant was exceeding the speed limit by 10 or 20 m.p.h., while driving north in the southbound lane.

At the intersection of Manhattan Avenue and Milton Street, about half a mile to the north, defendant went through another red light, nearly striking a pedestrian — a woman who was in the process of crossing the avenue. She was able to dive out of the way of the oncoming minivan. Defendant did not even apply his brakes. In fact, he continued to accelerate, and approached the intersection of Manhattan Avenue and Kent Street at about 60 m.p.h. He swerved around a driver in the northbound lane, entered the southbound lane, and barrelled head-on toward a vehicle driven by a motorist who had to wrench his car to one side to avoid a collision. That driver, stopping to recover himself, watched in his side-view mirror as defendant continued in the wrong lane and ran another red light at the India Street intersection, swerving between stopped cars waiting for the light.

It was at this intersection, Manhattan Avenue and India Street, that defendant struck a pedestrian, Violet Kryzak, 37, killing her. Kryzak was crossing Manhattan Avenue, with the pedestrian light in her favor. Her body flew into the air upon impact and landed over 165 feet, or almost one block, away from the point of collision. A witness who saw the moment of impact estimated that defendant was driving at 70 m.p.h., while another bystander thought his speed was closer to 80 m.p.h. It is clear from the testimony that defendant first swerved from the northbound to the southbound lane, to get around northbound vehicles stopped for the traffic light, and then immediately swerved back into the northbound lane, so as not to collide with stopped traffic straight ahead in the southbound lane. At this point, he slammed into Mrs. Kryzak.

Officer Truglio and his colleagues immediately stopped in order to attend to Kryzak. Defendant, however, did not brake, instead speeding away at what another bystander described as highway-type speed, still speeding north in the southbound lane. At the Dupont Street intersection, five blocks to the north, the driver of a pickup truck saw defendant heading towards him at what he estimated to be as much as 70 m.p.h. The windshield of defendant’s vehicle was caved in on the passenger side. The truck driver swerved, towards other oncoming traffic, to avoid a collision with the minivan, which finally crashed into parked vehicles.

Defendant jumped out and started running along Dupont Street, pursued by civilians. Eventually a police officer took him into custody. Defendant waived his Miranda rights and made statements to the police.

There is no dispute as to the standard in this post-Feingold case. “[T]he decisive question is whether defendant acted with the state of mind required by the depraved indifference murder statute — an utter disregard for the value of human life” (People v Taylor, 15 NY3d 518, 523 [2010] [internal quotation marks omitted]). To be guilty of depraved indifference, a defendant must have a mens rea that is more than simply a willingness to take the risk that a person will die as a result of his actions (see People v Lewie, 17 NY3d 348, 359 [2011]). A defendant who is willing to take the risk that someone will die but remains fearful of that possible result is not guilty of depraved indifference murder (see id.). On the other hand, someone whose state of mind is entirely indifferent and uncaring — a defendant who does not care whether another person is killed or grievously injured as a result of his actions (see People v Barboni, 21 NY3d 393, 400 [2013]; People v Feingold, 7 NY3d 288, 296 [2006])— has the requisite mens rea.

Consequently, the question here is whether the People proved that defendant Maldonado had such a state of mind — of not caring whether a pedestrian died or was grievously injured as a result of his reckless driving. In my view, it is clear that the proof of depraved indifference was sufficient. Notably, there was no evidence that defendant slowed down at intersections; and, most notably, defendant did not stop driving through red lights or against the flow of traffic, or otherwise adjust his reckless driving behavior, after almost hitting the first pedestrian. In other words, there is no indication that defendant, though reckless, remained to some extent fearful for others’ safety (contra Lewie, 17 NY3d at 359).

Defendant contends that his actions of swerving in and out of traffic, including swerving to avoid an oncoming car just before he fatally struck Kryzak, demonstrate that he took some care to avoid a fatal collision. I strongly disagree. Swerving in and out of traffic, including the maneuvers preceding the fatal impact, merely demonstrates defendant’s desire to avoid apprehension, not to avoid pedestrians. To the extent it indicates avoidance of other vehicles, it simply shows that he was not suicidal.

During the high-speed car chase, defendant drove at speeds greatly exceeding the speed limit, through red lights and in the path of oncoming traffic, to avoid police pursuit; he narrowly missed one pedestrian before striking and killing another; and he refused to change his driving behavior in the face of this encounter, when he had the opportunity to display that he cared whether or not he might strike a pedestrian. Viewing the evidence in the light most favorable to the prosecution, as we must, there is a valid line of reasoning and permissible inferences from which a rational jury — the jury in this trial — could have found that defendant’s state of mind was not extreme recklessness alone, but also utter indifference to the value of human life — that he simply did not care whether or not a pedestrian died.

Therefore, I would affirm the unanimous order of the Appellate Division, holding that the evidence of defendant’s guilt of murder in the second degree was legally sufficient.

Chief Judge Lippman and Judges Read, Smith and AbdusSalaam concur with Judge Rivera; Judge Pigott dissents in an opinion in which Judge Graffeo concurs.

Order modified by reducing defendant’s conviction of murder in the second degree to manslaughter in the second degree and remitting to Supreme Court, Kings County, for resentencing and, as so modified, affirmed.

      . In Prindle, we applied the trial court’s depraved indifference murder charge as given without exception, which was based on the objective-circumstances standard articulated in People v Register (60 NY2d 270 [1983]). Nevertheless, Prindle continues to provide important guidance because where, as in that case, the evidence is insufficient to establish depraved indifference under Register, it will most assuredly fail to meet the Feingold culpable-mental state requirement.

      . The dissent agrees. However, as Prindle makes clear, attempting to avoid a collision with others, even if done in a reckless manner, is insufficient proof of depraved indifference (see Prindle, 16 NY3d at 770-771). Rather, it suggests the opposite (see Heidgen, 22 NY3d at 276).

      . Although Officer Truglio testified that defendant swerved away from this pedestrian at the same time as she took evasive measures, Lieutenant Roy, sitting in the front passenger seat, did not see defendant swerve, and it appears that the woman escaped because of her athletic evasive action. In any case, defendant did not do what a person displaying the most minimal degree of care would have done, that is brake.

      . Defendant told the police he “tried to swerve” when he saw Kryzak, but no witness observed any evasive measure.


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [20 NE3d 639, 995 NYS2d 694]
    The People of the State of New York, Respondent, v Benjamin Jenkins, Appellant.
    Argued September 9, 2014;
    decided October 16, 2014

      POINTS OF COUNSEL

      Steven Banks, The Legal Aid Society, Criminal Appeals Bureau, New York City (Allen Fallek of counsel), for appellant.
    Contrary to the Appellate Division’s conclusion, the warrantless search of a closed container was per se unreasonable because the exigency that justified the warrantless entry had abated, and the hidden gun, itself, was not an exigent circumstance. (People v Knapp, 52 NY2d 689; Warden, Md. Penitentiary v Hayden, 387 US 294; People v McBride, 14 NY3d 440; Coolidge v New Hampshire, 403 US 443; People v Mitchell, 39 NY2d 173; People v Gokey, 60 NY2d 309; Maryland v Buie, 494 US 325; United States v Simmons, 661 F3d 151; People v Parker, 299 AD2d 859; People v Johnson, 181 AD2d 103.)

      Kenneth P. Thompson, District Attorney, Brooklyn (Sholom J. Twersky and Leonard Joblove of counsel), for respondent.
    Exigent circumstances justified the warrantless search that led to the recovery of the gun. (People v McBride, 14 NY3d 440; People v Molnar, 98 NY2d 328; People v Brown, 95 NY2d 942; People v Hallman, 92 NY2d 840; People v Leach, 21 NY3d 969; People v Johnson, 83 NY2d 831; People v Adams, 53 NY2d 1; People v Hines, 209 AD2d 717; People v Green, 103 AD2d 362; People v Robinson, 97 NY2d 341.)
   OPINION OF THE COURT

Pigott, J.

At issue in this appeal is whether a police officer’s warrant-less search of a closed metal box in defendant’s home was reasonable under the “exigent circumstances” exception to the warrant requirement. We conclude that it was not.

Shortly after midnight on January 1, 2010, New York City Police Officer Kevin Brennan and another officer entered an apartment building after hearing gunshots and observing muzzle fire from the building’s roof. As the officers ascended the stairwell, they heard a gunshot directly above them. When the officers reached the eighth floor, they heard voices from the adjoining hallway. They entered the hallway where Officer Brennan observed defendant holding a firearm.

Defendant and another man then fled into an apartment. The officers pursued defendant into the apartment, entering through the use of a sledgehammer to break down the locked and unanswered door. Upon entering the apartment they observed two women in the living room, one of whom was in a wheelchair. The women denied that anyone had entered the apartment.

The officers searched the apartment and located defendant and his cohort hiding under a bed. Officer Brennan and another officer removed the men from the room, frisked them, placed them in handcuffs, and took them to the living room to join the two women. By this time, there were several officers in the room. Officer Brennan then returned to the room where he had initially found defendant and searched for the gun. Finding none, he entered an adjoining bedroom and found a 12 inch by 12 inch silver box on the floor. He picked up the box, shook it, and, upon hearing a sound, opened it and discovered the gun. He returned to the living room and placed defendant under arrest.

At the conclusion of the suppression hearing, the People argued that exigent circumstances justified Officer Brennan’s warrantless search of the box. The defense countered that by the time Officer Brennan searched the box, defendant, his cohort, and the two women were all under the watchful eye of the officers in the living room, and any exigency had for all intents and purposes ceased. The suppression court concluded that the warrantless entry into the apartment was proper, but that once defendant was handcuffed and secured, the exigency had abated and the subsequent warrantless search of the box was improper. On appeal, the Appellate Division reversed, concluding that the same exigent circumstances that justified the officers’ entry into the apartment — the gunfire on the roof and stairwell, and Officer Brennan’s observation of defendant holding a gun in the hallway — justified the warrantless search for the gun (100 AD3d 924, 925 [2d Dept 2012]). A Judge of this Court granted defendant leave to appeal (21 NY3d 1016 [2013]) and we now reverse.

“[S]ubject only to carefully drawn and narrow exceptions, a warrantless search of an individual’s home is per se unreasonable and hence unconstitutional” (People v Knapp, 52 NY2d 689, 694 [1981]). One exception, commonly referred to as the “exigent circumstances” exception, dictates that police may act without a warrant where they possess probable cause to search but “urgent events make it impossible to obtain a warrant in sufficient time to preserve evidence or contraband threatened with removal or destruction” (id. at 695-696 [citations and internal quotation marks omitted]; see 1-12 Lewis Katz & Jay Shapiro, New York Suppression Manual § 12.02 [1] [b]). Even in such cases, however, “the scope of the conduct thus sanctioned is strictly limited by the necessities of the circumstances in which it arises” (Knapp, 52 NY2d at 696). The People have the burden of establishing that the exigencies of the situation justified the warrantless search (see Matter of Kwok T., 43 NY2d 213, 220 [1977]).

In this instance, the People failed to meet that burden. There is no record support for the Appellate Division’s conclusion that exigent circumstances justified the search of the closed box. The search was unreasonable as a matter of law because, by the time Officer Brennan opened the box, any urgency justifying the warrantless search had abated. The officers had handcuffed the men and removed them to the living room where they (and the two women) remained under police supervision. At the time Officer Brennan searched the box and discovered the gun, the police “were in complete control of the house” and “[a] 11 occupants were out of commission” (Knapp, 52 NY2d at 696-697). At that point, contrary to the People’s contention, there was no danger that defendant would dispose of or destroy the weapon (see Matter of Kwok T., 43 NY2d at 220), nor was there any danger to the public or the police (see Knapp, 52 NY2d at 697). Absent the presence of any other exception to the warrant requirement, such as a search incident to arrest or the gun being in plain view (see People v Ciccarelli, 161 AD2d 952, 953 [3d Dept 1990]), the police were required to obtain a warrant prior to searching the box.

Accordingly, the order of the Appellate Division should be reversed, the branch of defendant’s motion to suppress the physical evidence should be granted and the indictment should be dismissed.

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

Order reversed, that branch of defendant’s motion to suppress the physical evidence granted and the indictment dismissed.

      . Defendant does not challenge on this appeal the officers’ initial entry into the apartment.

      . The People also assert in their brief that the warrantless search of the box was supported by the “emergency doctrine” exception. Assuming that this argument was preserved, it is without merit. Under the “emergency doctrine,” the main objective is the protection of life or property (see New York Suppression Manual § 12.03 [1] [noting that the emergency doctrine differs from the exigent circumstances doctrine because “the primary objective” of the former is “protection of life and property,” whereas the latter involves “the protection of evidence from destruction or concealment or the arrest of a wrongdoer”]; see e.g. People v Molnar, 98 NY2d 328, 331-335 [2002]; People v Mitchell, 39 NY2d 173 [1976], cert denied 426 US 953 [1976]). Here, the only inference that can be drawn from the suppression record is that the claimed emergency — the safety of the women in the apartment — had abated by the time Officer Brennan searched the box, such that the officers had no “reasonable grounds to believe” there was “an emergency at hand and an immediate need for their assistance for the protection of life or property” (Mitchell, 39 NY2d at 177).


author: Chief Judge Lippman.

text:
    [20 NE3d 983, 996 NYS2d 203]
    In the Matter of Town of North Hempstead, Appellant-Respondent, v County of Nassau, Respondent-Appellant.
    Argued September 10, 2014;
    decided October 16, 2014

      POINTS OF COUNSEL

      Bond Schoeneck & King PLLC, Garden City (Richard S. Finkel of counsel), for appellant-respondent.
    I. The Education Law does not permit counties to charge back towns and cities for Fashion Institute of Technology costs. (Matter of Fulton-Montgomery Community Coll. v County of Saratoga, 80 AD3d 217; Matter of Moran v LaGuardia, 270 NY 450; Matter of New York Pub. Interest Research Group v Dinkins, 83 NY2d 377; Pataki v New York State Assembly, 4 NY3d 75; New York State Bankers Assn. v Wetzler, 81 NY2d 98; Matter of Gallagher v

      Regan, 42 NY2d 230; Ball v State of New York, 52 AD2d 47, 41 NY2d 617; Church of Ascension v New York State Racing & Wagering Bd., 55 AD2d 874, 46 NY2d 776; Commonwealth of the N. Mariana Is. v Canadian Imperial Bank of Commerce, 21 NY3d 55; Matter of Meng, 227 NY 264.) II. Education Law § 6302 (3) does not permit counties to recover the costs of Fashion Institute of Technology’s advanced degree programs from towns and cities. (Commonwealth of the N. Mariana Is. v Canadian Imperial Bank of Commerce, 21 NY3d 55; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205; Department of Welfare of City of N.Y. v Siebel, 6 NY2d 536; Giuliani v Hevesi, 90 NY2d 27; Comereski v City of Elmira, 308 NY 248; Desiderio v Ochs, 100 NY2d 159; Fleming v Graham, 10 NY3d 296; Castro v United Container Mach. Group, 96 NY2d 398; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557.) III. Any county chargeback must be preceded by authorization from the county legislature. (People v Roe, 74 NY2d 20; Matter of Scoglio v County of Suffolk, 85 NY2d 709; Matter of Leirer v Caputo, 81 NY2d 455.) IV The County of Nassau’s set off of sales tax revenue owed the Town of North Hemp-stead against a disputed debt is unlawful. (Dunn v Uvalde Asphalt Paving Co., 175 NY 214; Spodek v Park Prop. Dev. Assoc., 263 AD2d 478; Willett v Lincolnshire Mgt., 302 AD2d 271.)

      Cornell T. Foskey, County Attorney, Mineóla {Robert F. Van der Waag and David A. Tauster of counsel), for respondent-appellant.
    I. A county may properly charge back to its towns and cities the full amount paid for their residents to attend any degree program at a community college. (Fisher v Fashion Inst. of Tech., 491 F Supp 879; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205; Matter of Fulton-Montgomery Community Coll. v County of Saratoga, 80 AD3d 217; Cimo v State of New York, 306 NY 143; Metropolitan Multi-Hous. Laundry Assn. v New York City Dept. of Fin., 184 AD2d 759; Matter of County of Suffolk v King, 18 AD3d 1010; Pataki v New York State Assembly, 4 NY3d 75.) II. The county treasurer was empowered to charge back to the towns and cities for nonresident tuition at the Fashion Institute of Technology. (City of Buffalo v Roadway Tr. Co., 303 NY 453; Goncalves v Regent Intl. Hotels, 58 NY2d 206; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205; Matter of Auerbach v Board of Educ. of City School Dist. of City of N.Y., 86 NY2d 198.) III. The County of Nassau is entitled to set off the amounts chargeable to the Town of North Hempstead for its residents attending the Fashion Institute of Technology against the Town’s share of sales tax revenue. (United States v Munsey Trust Co., 332 US 234; Morash v State of New York, 268 AD2d 510; Matter of Fahey v Whalen, 54 AD2d 1097; Canale v New York State Dept. of Taxation & Fin., 84 Misc 2d 786; Argiriou & Finkel v Marciante Luncheonette II, 64 Misc 2d 660; Hettrick Mfg. Co. v Barish, 120 Misc 673, 209 App Div 807; Matter of Northville Indus. Corp. v State of New York, 14 AD3d 817.)

      Eric T. Schneiderman, Attorney General, New York City (Valerie Figueredo, Barbara D. Underwood and Richard B Dearing of counsel), for State University of New York, amicus curiae.
    The Fashion Institute of Technology is not exempt from Education Law § 6305 (5), which authorizes a county to recover from a town the county’s required payments for the attendance of town residents at an out-of-county community college. (Matter of Board of Educ. of City of N.Y. v Allen, 6 NY2d 127; Iazzetti v City of New York, 94 NY2d 183; Alweis v Evans, 69 NY2d 199; Pataki v New York State Assembly, 4 NY3d 75; Yatauro v Mangano, 17 NY3d 420; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Matter of Amorosi v South Colonie Ind. Cent. School Dist., 9 NY3d 367.)

      Dennis M. Brown, County Attorney, Hauppauge (Christopher A. Jeffreys of counsel), for County of Suffolk, amicus curiae.
    I. It is well established that the Fashion Institute of Technology is a community college in the State of New York. (Jackson v Board of Educ. of City of N.Y., 30 AD3d 57.) II. Suffolk County is entitled to reimbursement of all monies paid for nonresident student attendance at the Fashion Institute of Technology from the towns in which the students reside. (Matter of County of Suffolk v King, 18 AD3d 1010; Pataki v New York State Assembly, 4 NY3d 75; Moore v Mausert, 49 NY 332; Matter of Pink [Walladmoy Realty Co., Inc.], 179 Misc 46.)

      Corey E. Klein, Corporation Counsel, Long Beach (Gregory Kalnitsky of counsel), for City of Long Beach, amicus curiae.
    The County of Nassau may not charge back municipalities for Fashion Institute of Technology tuition. (Ferres v City of New Rochelle, 68 NY2d 446; New York State Bankers Assn. v Albright, 38 NY2d 430; People v Ryan, 274 NY 149; Janssen v Incorporated Vil. of Rockville Ctr., 59 AD3d 15; Matter of City of New York v Novello, 65 AD3d 112; Fisher v Fashion Inst. of Tech., 491 F Supp 879; Jackson v Board of Educ. of City of N.Y.,
      30 AD3d 57; Matter of Amorosi v South Colonie Ind. Cent. School Dist., 9 NY3d 367; Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98.)

      Cindy Elan-Mangano, Town Attorney, Huntington (Deirdre M. Butterfield of counsel), for Town of Huntington, amicus curiae.
    I. Education Law § 6305 authorizes counties to seek reimbursement for Fashion Institute of Technology-related charges from the State and only the State. (National Assn. of Home Builders v Defenders of Wildlife, 551 US 644; Lexecon Inc. v Milberg Weiss Bershad Hynes & Lerach, 523 US 26; Association of Civilian Technicians, Mont. Air Ch. No. 29 v Federal Labor Relations Auth., 22 F3d 1150.) II. Education Law § 6305 (5) should be deemed repealed by implication. (National Assn. of Home Builders v Defenders of Wildlife, 551 US 644; People ex rel. Bronx Parkway Commn. v Common Council of City of Yonkers, 229 NY 1; People v Mann, 31 NY2d 253.)

      Robert L. Cicale, Town Attorney, Islip (William F. Garbarino of counsel), for Town of Islip, amicus curiae.
    I. Education Law § 6305 authorizes counties to seek reimbursement for Fashion Institute of Technology-related charges from the State and only the State. (Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205; Matter of Hoerger v Spota, 109 AD3d 564; Pajak v Pajak, 56 NY2d 394; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Tompkins v Hunter, 149 NY 117; Matter of Erie County Agric. Socy. v Cluchey, 40 NY2d 194; Bright Homes v Wright, 8 NY2d 157.) II. The ongoing supersedure of Education Law § 6305 (10) by budget legislation does not constitute the implied repeal of Education Law § 6305 (10). (Noghrey v Town of Brookhaven, 214 AD2d 659; Matter of Gallagher v Regan, 42 NY2d 230; Matter of Moran v LaGuardia, 270 NY 450; Pataki v New York State Assembly, 4 NY3d 75; Ball v State of New York, 41 NY2d 617; People v Mann, 31 NY2d 253; Cimo v State of New York, 306 NY 143.)

      Sarah B. Brancatella, Albany, for Association of Towns of the State of New York, amicus curiae.
    The language of the statutes, amendments to the Education Law and a history of the community college chargeback system all demonstrate that the legislature did not intend to allow counties to charge back nonresident student Fashion Institute of Technology-related costs to towns. (Riley v County of Broome, 95 NY2d 455.)
   OPINION OF THE COURT

Chief Judge Lippman.

This appeal concerns the allocation of costs to be borne amongst various government entities for expenses attributable to their residents attending community college. More specifically, the primary issue presented is whether the Education Law permits respondent Nassau County (County) to charge back to petitioner Town of North Hempstead (Town) the amounts the County paid on behalf of Town residents attending the Fashion Institute of Technology (FIT). We conclude that the County can collect the chargebacks.

Under the Education Law, community colleges are defined as colleges that are established and operated by a local sponsor which “provid[e] two-year post secondary programs pursuant to regulations prescribed by the state university trustees and receiv[e] financial assistance from the state therefor” (Education Law § 6301 [2]). Community colleges are further described as institutions that “provide two-year programs of [a] post high school nature” with curricula “designed to serve the needs of students who seek two years of post secondary education and whose needs would not ordinarily be met by the usual four-year college curriculum” (Education Law § 6303 [1], [3]).

According to the financing system established by the Education Law, funding for community colleges is derived from the State, the local sponsor and the individual students (see Education Law § 6304 [1] [a], [c], [d]). The local sponsor’s portion of the financial burden depends upon where its students reside. For “resident” students — generally those who reside within the particular geographic region served by the local sponsor — the local sponsor is responsible for a portion of the community college’s operating and capital costs (see Education Law §§ 6301 [5]; 6304 [1]). For nonresident students — those who live within New York State, but outside of the region where the community college is located — the local sponsor is permitted to charge back a portion of those operating costs to the students’ county of residence (see Education Law § 6305 [2]). The county, in turn, is authorized to “charge back such amounts in whole or in part to the cities and towns in the county” where such nonresident students reside (Education Law § 6305 [5]).

Although, like other community colleges, FIT was initially a two-year school, in 1975 the legislature authorized the local sponsor to expand the available degree programs (see Letter from Assembly Sponsor, June 19, 1975, Bill Jacket, L 1975, ch 356, 1975 NY Legis Ann at 429 [baccalaureate degree programs]; Governor’s Approval Mem, Bill Jacket, L 1979, ch 204, 1979 NY Legis Ann at 134 [Master’s degree programs]). “In addition to the community college programs and curricula authorized by this article, the institution may offer . . . baccalaureate, masters degree programs and curricula in support of its mission” (Education Law § 6302 [3]). The statute further provides that “[notwithstanding any other provision of law, the institution shall be financed and administered in the manner provided for community colleges” (Education Law § 6302 [3]).

The expansion in FIT degree programs resulted in a greater burden on the local governments for their share of its operating costs. In 1994, the State took on the obligation of reimbursing the counties for charges they incurred on behalf of their nonresident students attending FIT (see L 1994, ch 170, § 400). Specifically, the statute provides that

“the state shall reimburse each county which has issued a certificate of residence for any non-resident student in attendance at [FIT] during the [1993-94] academic year and every year thereafter in an amount equal to fifty percent of the actual amount paid by such county on behalf of such students and on or before [June 1, 1995] and every year thereafter, the state shall reimburse each county for the remaining fifty percent of the actual amount paid by each such county on behalf of such students” (Education Law § 6305 [10]).

Although the legislature appropriated funds for the reimbursement until 2001, since that time such appropriations have not been made.

Beginning in 2003, the Nassau County Legislature authorized its county treasurer to charge back to the appropriate towns and cities the amounts paid by the County on behalf of its residents attending out-of-County community colleges. Although the resolution authorizing the chargebacks refers to community colleges in general, the County did not at that time charge the local municipalities for FIT costs. In 2010, however, the County began instituting FIT chargebacks.

By April 2011, the Town owed the County $1,174,462.60 in FIT expenses for the 2010 fiscal year. The County’s budget director sent a letter to the Town, informing it that this amount, as well as $601,482.27 owed for payments made on behalf of Town residents attending other out-of-county community colleges, had been withheld from its share of sales tax revenue.

The Town then commenced this hybrid declaratory judgment action/CPLR article 78 proceeding seeking a declaration that the County lacked authority to charge back FIT expenses to the Town. In the alternative, the Town sought a declaration that the chargebacks be limited to costs associated with two-year FIT degree programs. The Town also sought an order directing the County to pay the Town its share of the sales tax revenue and a declaration that the County was without authority to offset any chargebacks against the sales tax revenue due to the Town.

Supreme Court denied, in part, the Town’s motion for summary judgment, finding that the County was entitled to collect chargebacks from the Town (2011 NY Slip Op 32266[U] [2011]). However, the court limited the availability of those chargebacks to the amounts the County had expended on behalf of the Town’s FIT students who were enrolled in two-year programs and those who were seeking two-year Associate’s degrees. The court further determined that the County was entitled to offset the Town’s resulting liability by retaining the amount owed from the Town’s share of County sales tax revenue.

The Appellate Division modified by applying the chargebacks to all FIT degree programs, rather than solely to two-year programs (102 AD3d 800 [2d Dept 2013]). However, the Court also found that the County was required to adopt a formal resolution in order to authorize its treasurer to collect the chargebacks and that the County was not entitled to offset the amounts owed by the Town against the sales tax revenue.

This Court granted the Town’s motion for leave to appeal and the County’s motion for leave to cross-appeal (21 NY3d 864 [2013]). We now modify to uphold the County’s offsetting of the Town’s liability for FIT chargebacks from sales tax revenue, without requiring the issuance of a new resolution and, as so modified, affirm.

The Town argues that the County is without authority to charge back FIT costs to the towns. The crux of the Town’s argument is that when Education Law § 6305 (10) was enacted, the State became the sole source from which the counties could seek reimbursement for FIT student expenses. The Town maintains that this provision remains in full effect despite the State’s failure to fund the measure and that the County, therefore, cannot revert to obtaining reimbursement from the towns under section 6305 (5).

It is true that the State’s reimbursement obligation is phrased in mandatory terms (see Education Law § 6305 [10]). However, there is nothing in the statute that expressly repeals the County’s ability to seek chargebacks from the towns. Nor is there any indication that the legislature intended to impliedly repeal section 6305 (5). “Generally, a statute is deemed impliedly repealed by another statute only if the two are in such conflict that it is impossible to give some effect to both. If a reasonable field of operation can be found for each statute, that construction should be adopted” (Alweis v Evans, 69 NY2d 199, 204 [1987]). Here, the statutes are not in irreconcilable conflict, but can be harmonized. The community college funding scheme is clearly intended to provide the counties with reimbursement. That goal can either be accomplished using funds from the State (if available) or, in the alternative, from the local municipalities. The effect of the State’s failure to fund its reimbursement obligation is not the imposition of an additional expense upon the counties — especially where the statute continues to authorize chargebacks to the towns and cities for all community colleges. In other words, the State’s nonperformance does not change the rights and obligations as between the County and the Town. Rather, the State’s reimbursement obligation was superseded when the legislature failed, in the course of the budgeting process, to appropriate the required funding (see Pataki v New York State Assembly, 4 NY3d 75, 98-99 [2004]; Matter of County of Suffolk v King, 18 AD3d 1010 [3d Dept 2005]). The County was then free to look to the Town for reimbursement under Education Law § 6305 (5).

The Town’s alternative argument, that any reimbursement it is obligated to provide should be limited to expenses associated with FIT’s two-year programs, is without merit. As noted above, the same statute that expanded FIT’s curriculum to include advanced degree programs explicitly states that the school “shall be financed and administered in the manner provided for community colleges” (Education Law § 6302 [3]). Therefore, the County is permitted to collect chargebacks from the Town for costs incurred on behalf of Town residents for all FIT degree programs, just as it could for any two-year community college program.

Finally, the County, in support of its cross appeal, asserts that it has the authority to offset the Town’s debt by retaining the appropriate amount from the Town’s share of sales tax revenue. The County, like any other creditor, is permitted to employ the common-law right of set-off (see United States v Munsey Trust Co., 332 US 234, 239 [1947]; 1988 Ops St Comp No. 88-42). At this point, it is clear that the Education Law allows the County to seek chargebacks from the Town and the amount of the Town’s debt has been reliably determined based on concrete FIT enrollment figures (cf. Dunn v Uvalde Asphalt Paving Co., 175 NY 214, 219 [1903]). As a result, the County may offset the amounts owed by the Town and a specific resolution for this purpose is not required.

Accordingly, the order of the Appellate Division should be modified, with costs to the County, to declare in favor of the County in accordance with this opinion and, as so modified, affirmed.

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

Order modified, with costs to the County of Nassau, to declare in favor of the County of Nassau in accordance with the opinion herein and, as so modified, affirmed.

      . A local sponsor is defined as “[a]ny city, county, intermediate school district, school district approved by the state university trustees, or community college region approved by the state university trustees, sponsoring or participating in the establishment or operation of a community college” (Education Law § 6301 [3]).

      . The statute does not reference FIT explicitly, but the legislative history makes clear that the provision was designed to apply solely to that school (see Letter from Assembly Sponsor, June 19, 1975, Bill Jacket, L 1975, ch 356, 1975 NY Legis Ann at 429; Governor’s Approval Mem, Bill Jacket, L 1979, ch 204, 1979 NY Legis Ann at 134).


text:
    [21 NE3d 214, 996 NYS2d 585]
    The People of the State of New York, Respondent, v Andrew Blake, Appellant.
    Argued September 11, 2014;
    decided October 21, 2014

      POINTS OF COUNSEL

      Richard M. Greenberg, Office of the Appellate Defender, New York City (Alexandra Keeling and Rahul Sharma of counsel), for appellant.
    There was no basis for trial counsel’s failure to request a permissive adverse inference charge about the destroyed footage, and the omission of the charge tainted the jury’s consideration of Andrew Blake’s self-defense claim. (People v Pons, 68 NY2d 264; People v Turner, 5 NY3d 476; Strickland v Washington, 466 US 668; Henry v Poole, 409 F3d 48; People v Caban, 5 NY3d 143; People v Handy, 20 NY3d 663; Carter v Kentucky, 450 US 288; People v Wesley, 76 NY2d 555.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Vincent Rivellese and Christopher P. Marinelli of counsel), for respondent.
    Defendant’s trial attorney provided meaningful representation and cannot be deemed ineffective for not requesting an adverse inference instruction that may not have comported with counsel’s strategy, especially where defendant alleges no other shortcomings of counsel and did not make a post-judgment motion attacking counsel’s effectiveness. (People v Handy, 20 NY3d 663; Strickland v Washington, 466 US 668; People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137; People v Rivera, 71 NY2d 705; People v Turner, 5 NY3d 476; People v Carncross, 14 NY3d 319; People v Caban, 5 NY3d 143; People v Smith, 11 AD3d 202; People v Koberstein, 66 NY2d 989.)
   OPINION OF THE COURT

Chief Judge Lippman.

After a jury trial, defendant was convicted of three counts of attempted second degree murder, two counts of first degree assault, assault in the second degree, two counts of criminal possession of a weapon in the second degree, reckless endangerment in the first degree and bribery in the second degree. The trial evidence established that, during an altercation in a New York City housing project, defendant shot three men with a handgun recovered several days later from the water tank of a toilet in the Wilmington, Delaware apartment to which defendant fled in the shooting’s aftermath. Defendant raises no challenge to his weapon possession convictions. Nor does he now challenge his conviction for bribery, premised on proof that, following his arrest, he offered police detectives substantial sums to destroy videotapes purportedly implicating him in the New York shootings. Defendant seeks relief only from those portions of the underlying judgment convicting him of attempted murder, assault and reckless endangerment.

At trial, defendant sought to portray his resort to deadly force as justified; he maintained that he fired at his four adversaries because they had surrounded him and were about to set upon him with razors. This claim, his attorney argued, would have been objectively verified had the tape from a video surveillance camera periodically trained upon the location of the altercation been timely retrieved instead of having been left in the recording device and recorded over due to an unexplained oversight. Indeed, defendant’s attorney was permitted to urge over the prosecutor’s objection that the missing tape would have shown “a terrified [defendant]” attempting to escape his aggressors, and to express astonishment that “the one video that would show what happened” had been lost by “the most powerful law enforcement agency in this country.” Counsel, however, did not request, as she could have, a charge permitting, but not requiring, the jury to infer that the content of the missing tape would not have been favorable to the prosecution. Defendant’s sole appellate contention is that the failure to ask for the charge rendered counsel’s representation constitutionally ineffective.

In the decision and order we now review pursuant to leave granted by a Judge of this Court (21 NY3d 1013 [2013]), the Appellate Division declined to afford defendant relief, both because the appellate record was, in its view, insufficient to exclude a strategic justification for a decision by counsel not to request a charge merely permitting an adverse inference, and in light of what the court understood to be the overwhelming evidence refuting defendant’s claim that his conduct had been justified (105 AD3d 431, 431-432 [2013]). We now affirm.

While it is not utterly implausible that defense counsel reasonably elected not to seek a permissive adverse inference charge after having been permitted, over the People’s objection, forcefully to argue that the missing evidence would certainly have substantiated her client’s contention that his conduct had been justified, defendant’s contention that he was ineffectively represented may for other reasons be more conclusively laid to rest.

It is well-established that the effectiveness of a representational effort is ordinarily assessed on the basis of the representation as a whole (see Strickland v Washington, 466 US 668, 687-688 [1984]; People v Turner, 5 NY3d 476, 480 [2005]; People v Baldi, 54 NY2d 137, 146-147 [1981]). One error — and only one is identified here — in the context of an otherwise creditable performance by counsel generally will not suffice in support of the conclusion that the representation was not “meaningful” (see Baldi, 54 NY2d at 147) or fell below the objective standard of reasonableness required by the Federal Constitution (Strickland, 466 US at 688). There are, of course, exceptional cases in which an error is so clear-cut, egregious and decisive that it will overshadow and taint the whole of the representation (see People v Turner, 5 NY3d at 480-481; and see People v Caban, 5 NY3d 143, 152 [2005]), but this is not that rare sort of case. Allowing for argument’s sake that counsel erred in omitting to request the charge, that lone error was not in the context of this prosecution sufficiently egregious and prejudicial to constitute a predicate for the relief now sought.

The entitlement to an adverse inference charge, such as the one defendant’s attorney allegedly neglected to seek, was not conclusively established until 2013 when we decided People v Handy (20 NY3d 663 [2013]). It was in Handy that we first held such a charge to be mandatory upon request “when a defendant in a criminal case, acting with due diligence, demanded] evidence . . . reasonably likely to be of material importance, and that evidence ha[d] been destroyed by the State” (id. at 665). Before Handy, the availability of the charge was discretionary. At the time of defendant’s trial, in 2009, competent counsel would naturally have seized upon the government’s unexplained failure to preserve probably material evidence to encourage an inference adverse to the prosecution and favorable to her client, precisely as defendant’s trial counsel did, but there was then no legal authority absolutely entitling her client to the judicial instruction she is now faulted for not having sought (see Handy, 20 NY3d at 669-670). Perhaps it was a mistake not to seek the charge, which likely would have been given as a matter of discretion, but if it was a mistake, it was not one so obvious and unmitigated by the balance of the representational effort as singly to support a claim for ineffective assistance.

More importantly, there is no reason to suppose that a Handy-type charge would have availed defendant. The jury was well aware that, as defense counsel had emphasized, the police had failed to preserve “the one video that would show what happened,” but nonetheless rejected the argument specifically allowed by the trial court over the People’s protest, that the tape would have proved that defendant only fired his gun to avoid being shredded by his assailants’ razors. The reasons for this rejection are clear and, contrary to defendant’s argument, bear no discernible relation to the prosecutor’s summation remarks briefly urging the jury not to speculate, as it would have if, in accordance with a Handy charge, it had elected to draw an inference adverse to the prosecution, not from evidence but from its absence (see Handy, 20 NY3d at 669).

Although defendant claimed that his antagonists were armed, the video evidence that was presented at trial depicted one of defendant’s adversaries a moment before the shootings with his arms extended at his sides and his palms open, and there was no proof that razors or other weapons were found on or near the victims when they were attended soon after being shot. There was, in addition, forensic evidence that one of defendant’s victims had been shot in the back while fleeing, a circumstance dramatically at odds with defendant’s contention that he fired in self-defense. And, there was the evidence of defendant’s conduct following the altercation — fleeing the jurisdiction and attempting to secrete evidence linking him to the shootings — which must have seriously undermined his claim of justification. Yet, perhaps most damaging to defendant’s contention that the missing video would have borne out his assertion that he acted to defend himself, was the proof that he attempted to bribe the arresting officers to destroy videotapes the officers said they had of the altercation. Surely it was not lost upon the jury that defendant would not have sought the destruction of tapes of the incident — the very evidence he later complained was missing — if there had been reason to suppose that such evidence would substantiate his justification claim.

We do not exclude the possibility that, post-Handy, the failure to request a Handy charge could support an ineffective assistance claim. But the viability of such a claim, conditioned upon a demonstration of prejudice attributable to counsel’s inadequacy (see Strickland, 466 US at 694; People v Caban, 5 NY3d at 155-156), would depend, in crucial part, upon facts making the adverse inference Handy merely makes available at least reasonably plausible. The present facts do not meet that condition. On this record, it cannot be said that there was even a reasonable possibility, much less a reasonable probability (see Strickland, 466 US at 694) that the jury, if offered the opportunity, would have elected to draw an inference adverse to the prosecution as to what the missing video would have shown.

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

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

Order affirmed.

      . Defendant did not testify. He raised the claim that he had acted in self-defense during a video-recorded portion of his post-arrest interview entered in evidence by the prosecution.

      . Tapes were recovered from other surveillance cameras, but although they captured surrounding events they did not capture what transpired at the moment of the shootings.


author: Graffeo, J.

text:
    [20 NE3d 990, 996 NYS2d 210]
    Joseph W. Powers, by His Guardian ad Litem, William T. Powers, Appellant, v 31 E 31 LLC et al., Respondents.
    Argued September 10, 2014;
    decided October 21, 2014

      POINTS OF COUNSEL

      Weitz & Luxenberg, EC., New York City (Alani Golanski, Lawrence Goldhirsch and Jonathan Sedgh of counsel), for appellant.
    I. The Appellate Division erred in holding that plaintiffs tragic fall was unforeseeable “as a matter of law” and that defendants had no common-law duty to remedy the extreme hazard created by their oft-used roof surface. (Gordon v American Museum of Natural History, 67 NY2d 836; Espinal v New York City Hous. Auth., 215 AD2d 281; Lal v Ching Po Ng, 33 AD3d 668; Rhabb v New York City Hous. Auth., 41 NY2d 200; Rosine v Richmond County Fed. Sav. & Loan Assn., 294 NY 682; Martinez v White Cottage Enters., 2 AD3d 506; Di Ponzio v Riordan, 89 NY2d 578; Larchmont Professional Fire Fighters Assn. v Larchmont/Mamaroneck Volunteer Ambulance Corps, 206 AD2d 507.) II. The Appellate Division erred in holding that, as a matter of law, the 1979 certificate of occupancy both established the building’s characteristics in 1909, and excused dangerous statutory and regulatory height-related violations existing in 2008. (Kellman v 45 Tiemann Assoc., 87 NY2d 871; Slomin v Skaarland Constr. Corp., 207 AD2d 639; Hayes v Texas Roadhouse Holdings, LLC, 100 AD3d 1532; Garrett v Holiday Inns, 58 NY2d 253; Cirino v Greek Orthodox Community of Yonkers, 193 AD2d 576; Clinton v McKeon, 174 AD2d 153; Matter of Schultz Mgt. v Board of Stds. & Appeals of City of N.Y., 64 NY2d 1057; Pavon v 19th St. Assoc. LLC, 17 Misc 3d 1125[A], 2007 NY Slip Op 52144[U]; Pappalardo v New York Health & Racquet Club, 279 AD2d 134.)

      Herzfeld & Rubin, PC., New York City {Linda M. Brown and David B. Hamm of counsel), for respondents.
    I. The statutory claim must be dismissed because there was no requirement that the setback ledge have a parapet, railing or fence. (Moynahan v City of New York, 205 NY 181; People ex rel. New York Cent. & Hudson Riv. R.R. Co. v Woodbury, 208 NY 421; People v Wright, 86 NY2d 591; People v Gruden, 42 NY2d 214; Ramos v Howard Indus., Inc., 10 NY3d 218; Diaz v New York Downtown Hosp., 99 NY2d 542; Wasson v Bond, 80 AD3d 1114; Feliz v Beth Israel Med. Ctr., 38 AD3d 396; Hyman v Queens County Bancorp, Inc., 3 NY3d 743; Matter of DeNicola v Scarpelli, 154 AD2d 462.) II. In the absence of a statutory violation, the complaint must be dismissed. Defendants violated no common-law duty. In any event, the accident was not foreseeable, and plaintiffs conduct was the superseding or sole proximate cause of his injuries. (Matter of New York City Asbestos Litig., 5 NY3d 486; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222; Purdy v Public Adm’r of County of Westchester, 72 NY2d 1; D’Amico v Christie, 71 NY2d 76; Pulka v Edelman, 40 NY2d 781; Di Ponzio v Riordan, 89 NY2d 578; Maria T. v New York Holding Co. Assoc., 52 AD3d 356, 11 NY3d 708; Williams v Citibank, 247 AD2d 49; Gray v Forest City Enters., 244 AD2d 974; Gross v Empire State Bldg.

      Assoc., 4 AD3d 45.) III. The complaint was properly dismissed as there is no proof of proximate causation. (Morris v Solow Mgt. Corp. Townhouse Co., L.L.C., 46 AD3d 330; McNally v Sabban, 32 AD3d 340; Jennings v 1704 Realty, L.L.C., 39 AD3d 392; Witt v Hill St. Commercial, LLC, 59 AD3d 217; Lynn v Lynn, 216 AD2d 194; Noseworthy v City of New York, 298 NY 76; Kane v Estia Greek Rest., 4 AD3d 189; Castore v Tutto Bene Rest. Inc., 77 AD3d 599; Raghu v New York City Hous. Auth., 72 AD3d 480; Reed v Piran Realty Corp., 30 AD3d 319.) IV The alleged hazardous condition was open and obvious. (Tagle v Jakob, 97 NY2d 165; Koval v Markley, 93 AD3d 1171; Peralta v Henriquez, 100 NY2d 139; Rivas-Chirino v Wildlife Conservation Socy., 64 AD3d 556; Toes v National Amusements, Inc., 94 AD3d 742; Rachlin v 34th St. Partnership, Inc., 96 AD3d 690; Galindo v Town of Clarkstown, 2 NY3d 633; Mizell v Bright Servs., Inc., 38 AD3d 267.) V Plaintiff does not fall within the classes provided special protection from height-related hazards.

      Robert F. Danzi, New York City, for New York State Trial Lawyers Association, amicus curiae.
    I. Certificates of occupancy should not be deemed to immunize defendants from liability for harms caused by building hazards existing decades later. (Garrett v Holiday Inns, 58 NY2d 253; Board of Mgrs., Fairview at Artist Lake, Condominium I v Fairview at Artist Lake, 81 AD3d 768; Cardiff v Carrier, 79 AD3d 1626; Cirino v Greek Orthodox Community of Yonkers, 193 AD2d 576; Santiago v United Artists Communications, 263 AD2d 407; Solomons v Douglas Elliman LLC, 94 AD3d 468; Hayes v Texas Roadhouse Holdings, LLC, 100 AD3d 1532.) II. The constructive notice doctrine remains viable in New York and applies in this case. (Gordon v American Museum of Natural History, 67 NY2d 836; Stewart v Sherwil Holding Corp., 94 AD3d 977; Cusack v Peter Luger, Inc., 77 AD3d 785; Hammond-Warner v United States, 797 F Supp 207; Negri v Stop & Shop, 65 NY2d 625; Haseley v Abels, 84 AD3d 480; Kelsey v Port Auth. of N.Y. & N.J., 52 AD2d 801; LaPadula v J.A.A. Grocery Corp., 37 AD3d 237.) III. New York’s solicitude for the welfare of citizens endangered by preventable height-related hazards also warrants reinstatement of plaintiffs complaint. (Quigley v Thatcher, 207 NY 66; Koenig v Patrick Constr. Corp., 298 NY 313; Rocovich v Consolidated Edison Co., 78 NY2d 509; Adekanbi v Purdue Leasing Ltd. Liab. Co., 12 Misc 3d 1096; Sizse v Wegmann, 169 App Div 112.)

      McGaw, Alventosa & Zajac, Jericho {Dawn C. DeSimone and Andrew Zajac of counsel), Brian Rayhill, Elmsford, Roña L.

      Platt, Uniondale, Brendan T Fitzpatrick, Garden City, and Jonathan T. Uejio, New York City, for Defense Association of New York, Inc., amicus curiae.
    I. The Appellate Division correctly ruled that this incident was unforeseeable as a matter of law, and this Court should affirm. (Palsgraf v Long Is. R.R. Co., 248 NY 339; Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 64 NY2d 670; Basso v Miller, 40 NY2d 233; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Hubbell v City of Yonkers, 104 NY 434; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222; Blye v Manhattan & Bronx Surface Tr. Operating Auth., 124 AD2d 106, 72 NY2d 888; Danielenko v Kinney Rent A Car, 57 NY2d 198; Greene v Sibley, Lindsay & Curr Co., 257 NY 190; Derdiarian v Felix Contr. Corp., 51 NY2d 308.) II. The Appellate Division correctly held that plaintiff failed to raise an issue of fact on his claim of statutory violations. (Hyman v Queens County Bancorp, Inc., 3 NY3d 743; Matter of DeNicola v Scarpelli, 154 AD2d 462; Matter of Di Pasquale v Haskins, 25 AD2d 490; Matter of Edwards v Murdock, 283 NY 529; Town of Union v Pallet Co., 50 AD2d 628; Matter of Kayfield Constr. Corp. v Morris, 15 AD2d 373; Matter of Baumann & Sons Buses v Patchogue-Medford Union Free School Dist., 231 AD2d 566; De Lancey v Piepgras, 138 NY 26.) III. The arguments advanced by plaintiff and the New York State Trial Lawyers’ Association based on Labor Law § 240 and window guard regulations are completely misplaced. (Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970; Stringer v Musacchia, 11 NY3d 212.)
   OPINION OP THE COURT

Graffeo, J.

In this negligence case where plaintiff fell off the setback roof of an apartment building, we conclude that defendants failed to demonstrate their entitlement to summary judgment on the grounds relied upon by the Appellate Division. We therefore reverse the Appellate Division order.

In the early morning hours of August 23, 2008, plaintiff Joseph W. Powers and several others, all of whom had been consuming alcohol, visited a friend’s apartment located on the second floor of a 13-story apartment building in Manhattan. During the visit, the group stepped through a window in the apartment to access the adjacent roof-deck. The window opening was 17x/2 inches wide by 31 inches tall, and the flat roof area was approximately five feet wide and extended the length of the building above the first floor. This setback portion of the roof abutted the exterior wall and railing of a structure behind the apartment building. In one area of the roof there was a 25-foot-deep air shaft situated between the two buildings. There was no railing, fence or parapet wall around the perimeter of the air shaft. The opening of the air shaft measured approximately six feet, four inches by eight feet, five inches.

Plaintiff and the others walked around the setback roof for a few minutes and then reentered the apartment through the window they had used earlier. After a time, the group realized that plaintiff was no longer with them. They undertook a search and discovered that plaintiff was lying unresponsive at the bottom of the air shaft. Apparently, plaintiff had re-exited the apartment through the window and fallen off the unguarded edge of the setback roof into the air shaft. As a result of this tragic accident, plaintiff sustained debilitating injuries.

In 2010, plaintiff, through his guardian ad litem William T. Powers, commenced this personal injury action against the owners and managers of the apartment building, defendants 31 E 31 LLC and B & L Management Co., Inc. Plaintiff alleged that defendants had created and maintained a dangerous condition and negligently caused his injuries by failing to install a railing, parapet wall or fence around the perimeter of the air shaft. In support of his negligence claim, plaintiff further asserted that the absence of a guardrail violated the Multiple Dwelling Law and New York City Building Code.

Defendants answered and, after discovery, moved for summary judgment dismissing the complaint, arguing primarily that plaintiff’s accident was unforeseeable and that the 1968 and 2008 New York City Building Codes did not govern the condition of this particular roof because the construction of the apartment building predated those codes. Supreme Court denied defendants’ motion, finding their proof insufficient to demonstrate that the building codes did not require a protective guard on the setback roof and holding that there were questions of fact concerning foreseeability (38 Misc 3d 1211 [A], 2012 NY Slip Op 52429[U], *3-7 [Sup Ct, NY County 2012]). The court also rejected defendants’ additional arguments that they could not be held liable on the basis that plaintiff had no memory of the accident and the air shaft was an open and obvious condition (see 2012 NY Slip Op 52429[U], *6-7).

The Appellate Division reversed and dismissed the complaint (105 AD3d 657 [1st Dept 2013]). The court found that the 1979 certificate of occupancy submitted by defendants demonstrated that the building was grandfathered out of the 1968 and 2008 Building Codes and complied with the earlier regulations (see id. at 657-658). The court further concluded that defendants had no duty to mitigate the risk of an accident such as plaintiffs fall because, “given the nature and location of the setback, it was unforeseeable that individuals would choose to access it” (id. at 657). Because it disposed of the case on those grounds, the court did not reach defendants’ alternative arguments.

We granted plaintiff leave to appeal (21 NY3d 863 [2013]) and now reverse.

The central issue before us is whether defendants’ summary judgment proof was sufficient to refute plaintiffs allegations of negligence — more particularly, plaintiff’s assertion that the building codes required the erection of a railing or parapet on the setback roof. Defendants argue that the building was exempted from the 1968 and 2008 Building Codes, relying on an exception contained in the code in effect when the building was constructed in 1909. According to defendants, their summary judgment proffers, which consisted primarily of an expert affidavit and a certificate of occupancy issued by the City, established that the 1909 exception applied and that subsequent alterations to the building did not require updated compliance. Alternatively, defendants claim that, even if the 1968 Building Code governs, it does not mandate that the setback roof have a protective guard.

Plaintiff counters that defendants failed to eliminate questions of fact concerning the applicability of the 1909 exception or whether the later conversion of the building to multiple dwelling use obligated defendants to bring the entire building into compliance with the 1968 Building Code. Plaintiff contends that, by granting defendants summary judgment, the Appellate Division assigned too much weight to the certificate of occupancy. We agree.

Under the Multiple Dwelling Law, every open roof area of a multiple dwelling erected or converted to residential use after April 18, 1929 must be protected by a parapet wall or guard railing unless the department charged with code enforcement deems such protection unnecessary (see Multiple Dwelling Law §§ 9 [2]; 62 [1]). The parties agree that under the building code in effect in 1909, all exterior walls over 15 feet high — except where finished with gutters — were required to have two-foot parapet walls extending above the roof (see L 1892, ch 275, § 15; 1906 Building Code of City of NY § 43; 1899 Building Code of City of NY § 43). This exclusion for walls finished with gutters was carried into subsequent building codes, which applied to new construction (see 1938 Building Code of City of NY [Administrative Code of City of NY] §§ C26-5.0, C26-444.0; 1916 Building Code of City of NY §§ 4, 259). Thus, if the setback roof in this case had gutters in 1909, the lack of a railing would not necessarily indicate a violation of the early codes.

By 1968, however, instead of excepting walls finished with gutters, the building code mandated that buildings which were “more than [22] feet in height and have roofs that are flatter than [20] degrees to the horizontal shall be provided with a parapet . . . railingt,] or fence” of a specific height (1968 Building Code of City of NY [Administrative Code of City of NY] § 27-334). The 2008 Building Code contains a similar requirement (see NY City Building Code [Administrative Code of City of NY, tit 28, ch 7] § BC 1509.8).

In light of these code provisions, we reject defendants’ claim that the 1968 and 2008 Building Codes require the installation of railings or parapets only on the highest roof of a building. Although the 1968 Building Code refers to a “parapet . . . railing^] or fence” in the singular, it specifically provides that “words used in the singular include the plural, and the plural the singular” (1968 Building Code of City of NY [Administrative Code of City of NY] §§ 27-231, 27-334). The definition of “roof’ in the 1968 Building Code refers to “[t]he topmost slab or deck of a building,” but the term “building” must be construed as if followed by the phrase “or part thereof” (id. § 27-232). As the setback roof is the topmost slab of “part of the building,” it falls within the purview of section 27-334 (id.). Furthermore, although section 27-334 provides that protective guards may be located six feet inward from the face of the exterior wall, this is not a mandatory condition (see id. § 27-334). Contrary to defendants’ contention, a setback roof that is less than six feet wide requires a protective guard and, consequently, if the 1968 Building Code applies, the absence of a parapet or railing on the edge of the setback roof may run counter to the requirements of the code.

Like its predecessors, the 1968 Building Code required existing buildings to conform to the new standards under certain circumstances (see generally id. subch 1, art 4). Here, the parties agree that the updated code governs the entire apartment building if post-1968 alterations were made to the structure that, within a 12-month period, cost more than 60% of the building’s value (see id. § 27-115). The 1968 Building Code also provides that alterations resulting in changes to the occupancy or use classification, or the conversion to multiple dwelling use, may require that the entire building comply with the updated code requirements, depending on whether public safety and welfare are endangered (see id. §§ 27-118, 27-120).

As the proponent of summary judgment, defendants bore the burden of “tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Specifically, defendants needed to eliminate any doubt as to whether, under the foregoing regulatory scheme, the absence of a protective guard on the setback roof conformed to code. To that end, defendants should have established that the roof was finished with gutters in 1909 and that the 1979 conversion did not trigger an obligation to bring the entire building, including the unaltered setback roof, into compliance with the 1968 Building Code. In our view, defendants’ proof fell short in both respects.

In support of their motion, defendants submitted the affidavit of engineer Cornelius P. Dennis and a certificate of occupancy issued by the City in 1979. In the absence of the 1909 building plans, however, the engineer’s assertion that the building was finished with gutters in 1909 was speculative (cf. Ramos v Howard Indus., Inc., 10 NY3d 218, 224 [2008]; Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). Although he opined that the 1979 conversion did not implicate section 27-115 or require that the building be brought into compliance with the 1968 Building Code, the engineer based his conclusion solely upon the estimated cost of the alterations cited in the permit application, without including the value of the building in 1979. Dennis averred only that there was “no doubt in [his] mind” that the building was worth “some multiple of $2,300,000.” These conclusory assertions are insufficient to demonstrate the absence of any material issue of fact (see Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]).

Nor does the 1979 certificate of occupancy satisfy defendants’ burden to present a prima facie showing of entitlement to judgment as a matter of law, and our decision in Hyman v Queens County Bancorp, Inc. (3 NY3d 743 [2004]) does not hold otherwise. In Hyman, the plaintiffs bore the burden of establishing that the proffered building code provisions were in effect at the relevant time and that updated compliance was required because the plaintiffs had raised the building codes in opposition to the defendant’s summary judgment proof, which had shown there was no defective or dangerous condition on the premises (see id. at 744-745). In light of the certificate of occupancy presented by the defendant, paired with the absence of any indication that the stairway was defective, or any evidence that the proffered codes applied, the plaintiffs in Hyman failed to raise a legitimate issue of fact to defeat summary judgment (see id.).

In this case, it was defendants’ burden to prove at the outset that the absence of a railing did not violate the building regulations (see Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982, 985 [1993] [holding that the defendant failed to establish that the updated building code did not apply]). On this record, defendants have not adequately demonstrated that the roof was finished with gutters in 1909, and the certificate of occupancy is inadequate to establish that the setback roof fully complied with all code mandates on the date of its issuance or 29 years later on the day of plaintiffs accident (see Solomons v Douglas Elliman LLC, 94 AD3d 468, 470 [1st Dept 2012]; see generally Garrett v Holiday Inns, 58 NY2d 253, 262-263 [1983]; see also NY City Construction Codes [Administrative Code of City of NY, tit 28, ch 1] § 28-118.1). Hence, under the circumstances of this case, issues of fact concerning the roofs compliance with the building codes remain.

Plaintiff also argues that, under our holding in Lesocovich v 180 Madison Ave. Corp. (81 NY2d 982 [1993], supra), the Appellate Division erred in concluding that there are no triable questions of fact as to whether his accident was foreseeable. Defendants posit that holding them liable for plaintiffs injuries would require the imposition of a new duty of care, and they claim that Lesocovich is factually distinguishable. Defendants’ arguments are unpersuasive.

It is well settled that, as landowners, defendants have “a duty to exercise reasonable care in maintaining [their] . . . property in a reasonably safe condition under the circumstances” (Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]; see Basso v Miller, 40 NY2d 233, 241 [1976]). The existence and scope of this duty is, in the first instance, a legal question for the courts to determine by analyzing the relationship of the parties, whether the plaintiff was within the zone of foreseeable harm, and whether the accident was within the reasonably foreseeable risks (see Sanchez v State of New York, 99 NY2d 247, 252 [2002]; Di Ponzio v Riordan, 89 NY2d 578, 583 [1997]; Palsgraf v. Long Is. R.R. Co., 248 NY 339, 344 [1928] [“(t)he risk reasonably to be perceived defines the duty to be obeyed”], rearg denied 249 NY 511 [1928]).

The focus of our inquiry, therefore, is whether it was foreseeable that defendants’ tenants and their guests would access the setback roof and be exposed to a dangerous condition from the absence of a railing or guard around the air shaft. In Lesocovich, the plaintiff fell off a setback roof while visiting a friend’s apartment and alleged that the fall was due to the absence of a railing or parapet (see 81 NY2d at 983). As here, the setback roof was not an area included in the tenant’s lease, no permission had been obtained for her to use it and the landlord denied prior knowledge of its use. Also, the roof in Lesocovich was similarly accessible only through a window (see id. at 983-984). In that case, we denied the defendant’s summary judgment motion, holding that reasonable minds could disagree as to whether the plaintiffs use of the roof was foreseeable (see id. at 985).

Although the roof in Lesocovich may have been more suitable to recreational use, here, the setback roof was flat and of sufficient size and length to comfortably permit several individuals to stand or walk on it. Access to the roof was easily obtained through the hallway window, and neither plaintiff nor his friends had any difficulty exiting. In Lesocovich, the plaintiff had to climb on furniture to reach the small window leading to the roof; yet we still held that a jury could find the tenant’s use of the window to access the roof foreseeable (see id.). Here, the tenant of the apartment that plaintiff was visiting testified that he had stepped onto the roof through the window approximately 15 times in the two months preceding the accident to smoke cigarettes and that the previous tenant had often done the same. According to the resident, evidence of this use was visible because cigarette butts and garbage littered the roof. On this record, as in Lesocovich, reasonable minds could differ as to whether plaintiff’s use of the roof and his resulting fall were foreseeable, thereby precluding the grant of summary judgment to defendants on that ground.

Because we conclude that defendants failed to make a prima facie showing of entitlement to judgment as a matter of law with respect to whether the absence of a protective guard on the setback roof violated the building codes and whether the accident was foreseeable, we need not consider the sufficiency of plaintiffs opposing papers (see Alvarez, 68 NY2d at 324).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division for consideration of issues raised but not reached on the appeal to that court.

Chief Judge Lippman and Judges Smith, Pigott, Rivera and Abdus-Salaam concur with Judge Graffeo; Judge Read dissents and votes to affirm for the reasons stated in the memorandum of the Appellate Division (105 AD3d 657 [2013]).

Order reversed, with costs, and case remitted to the Appellate Division, First Department, for consideration of issues raised but not determined on the appeal to that court.

      . Under section 27-119 of the 1968 Building Code, the cost of making alterations for purposes of applying section 27-115 must be determined by adding the estimated cost of the proposed alterations to the actual cost of any and all alterations made in the past 12 months (see 1968 Building Code of City of NY [Administrative Code of City of NY] § 27-119). The value of the building must be calculated, at the applicant’s option, “on the basis of one and one-quarter times the current assessed valuation of the building, as adjusted by the current State equalization rate, or on the basis of the current replacement cost of the building” (id.).

      . The record contains some indication that, in 1979, defendants elected to convert the building to multiple dwelling use under the 1968 Building Code. Plaintiff, however, makes no argument that this election necessarily required that unaltered parts of the building be brought into updated compliance pursuant to section 27-120 of the 1968 Code. Thus, we have no occasion to pass on that question.