author: Chief Judge Lippman.

text:
    [34 NE3d 839, 13 NYS3d 329]
    The People of the State of New York, Respondent, v Jose Inoa, Appellant.
    Argued May 6, 2015;
    decided June 10, 2015

      POINTS OF COUNSEL

      John R. Lewis, Sleepy Hollow, for appellant.
    Detective Rivera’s “expert” testimony extended far beyond the scope of his area of expertise, often relied on hearsay sources, bolstered the key testimony of witness Duran, and served to make him a virtual “summarjr” witness of the People’s entire case, thoroughly usurping the jury’s role. (United States v Mejia, 545 F3d 179; United States v Dukagjini, 326 F3d 45; People v Knupp, 179 AD2d 1030; People v Bolling, 166 AD2d 203; People v Polanco, 50 AD3d 587; People v Clyde, 18 NY3d 145; People v Bennett, 79 NY2d 464; People Brown, 97 NY2d 500; People v Seeley, 186 Misc 2d 715; People v Diaz, 85 AD3d 1047.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Christopher P. Marinetti and Vincent Rivellese of counsel), for respondent.
    The trial court properly exercised its discretion in admitting Detective Rivera’s testimony. (Crawford v Washington, 541 US 36; United States v Mejia, 545 F3d 179; United States v Dukagjini, 326 F3d 45; People v Brown, 97 NY2d 500; People v Polanco, 50 AD3d 587, 11 NY3d 834; People v Jones, 73 NY2d 427; People v Contreras, 28 AD3d 393; People v Crimmins, 36 NY2d 230; People v Caban, 5 NY3d 143; Meiselman v Crown Hgts. Hosp., 285 NY 389.)
   OPINION OF THE COURT

Chief Judge Lippman.

Early on the morning of January 11, 2005, Edward Contreras and an associate, Christian Santos, were shot in a grocery store at the corner of Sherman Avenue and West 204th Street in Upper Manhattan. Contreras died of his wounds several hours later. Santos, although seriously injured, survived. In March 2009, defendant, Oman Gutierrez and several others were indicted in connection with those shootings. As is here relevant, defendant and Oman Gutierrez were charged with first-degree murder (Penal Law § 125.27 [1] [a] [vi]). It was alleged that defendant murdered Contreras at Gutierrez’s request and that he had expected to be paid for doing so.

Defendant and Oman Gutierrez were tried together in June and July of 2010. The jury heard evidence that, in the late 1990s, Oman Gutierrez led a drug ring that did business on a block situated at Post Avenue and West 204th Street in Washington Heights. Following a law enforcement “take down” of the Gutierrez ring in 1999, Oman and several of his associates were prosecuted and imprisoned for lengthy terms, and in their absence Edward Contreras and his drug dealing crew took over the Post and 204th Street location. Trial testimony by Eldia Duran, Oman Gutierrez’s paramour during the period of the Contreras shooting, together with transcribed recordings of some 77 telephone calls made to Duran and third parties by Oman from prison between December 2004 and May 2005, was introduced to prove that, as Oman’s term neared its anticipated conclusion, he schemed to eliminate Contreras, whose appropriation of his “spot” on West 204th Street he believed prevented his ring from making money. Duran testified that in conversations, both recorded and unrecorded, to which she was either a party or privy, Oman disclosed his intention to have defendant, a trusted childhood friend from the neighborhood of 204th and Post, known by a variety of street names — mostly canine, but also as “Andy” and “Zim”— return to New York City from Georgia, where he then lived, to perform the assassination. Duran said it was understood that, although the still imprisoned Oman had no money, defendant eventually would be paid for removing Contreras. She explained that, on his release from prison, Oman expected to receive $20,000 from one Orlando Torres and that he intended to use half of that sum to compensate defendant.

Duran recounted that upon defendant’s arrival in New York City in early January 2005, Oman insisted on keeping him secluded and was concerned that his own contemporaneous return to the streets for several days a week as a participant in a transitional work release program should not become public knowledge. Duran stated that, in preparation for the assassination, defendant and members of Oman’s crew, chauffeured by Joaris Grullon, the wife of one of Oman’s associates, surveilled Contreras to ascertain when and where “to get the perfect shot”; that Oman was impatient at the inept way in which his design on Contreras’ life was being executed and was particularly displeased that the shooting did not take place as planned on January 9th; and that, on the evening of January 9th, Oman spoke by telephone from the Edgecombe Correctional Facility with defendant and received defendant’s assurance that “[s]he gonna get done kid. Don’t worry about it, big boy. I got this!”

Joaris Grullon testified that on the following night — the night of January 10th to January 11th — she drove her blue Honda to pick up defendant and Oman’s cousin Randy Gutierrez on West 218th Street, as she had the night before. She said she drove the men around for about an hour, as she had the previous evening, and then, at Randy’s direction, double-parked near the corner of Vermilyea Avenue and West 204th Street. Defendant, she recalled, got out of the car and walked in the direction of West 204th Street. About 10 minutes later he returned, “rushed” into the car and directed her in Spanish to take off. According to Grullon, she then returned to 218th Street and dropped defendant and Randy Gutierrez off.

Enrique Zorilla, Edward Contreras’s cousin and driver, testified that while walking to one of Contreras’s cars late on the night of January 10th and 11th he noticed defendant, first leaning against a wall smoking, and then jogging toward a bodega located on West 204th Street and Sherman Avenue, entered moments before by Contreras and Christian Santos. Defendant, he said, pulled a gun from his back pocket as he neared and went into the market. Zorilla remembered hearing shots within the market, and then seeing defendant exit the store, fire another round into the market and take flight. Kenny Ortiz testified that on the early morning of January 11, 2005 he was walking on West 204th Street near Vermilyea Avenue when he heard a gunshot. He remembered taking cover between parked cars and seeing defendant, whom he knew from a prior encounter, run by, gun in hand, and get into a car at Vermilyea Avenue. Contreras was transported to the hospital by Zorilla and Contreras’s friend. The friend testified that, on the way, he asked Contreras who had shot him and that Contreras replied, “Andy.”

Ms. Duran testified that, after the shooting, Oman wanted defendant to keep off the streets and then to stay in Georgia (to which he had temporarily returned) until things cooled off, but that defendant, who had announced his intention immediately to “throw himself on the block” and was anxious to be paid, was not cooperative. Duran reported to Oman that defendant had threatened to come to New York to get his money directly from Orlando Torres. In ensuing telephone conversations Oman repeatedly, but unsuccessfully, attempted to prevail upon defendant, both through intermediaries and directly, to remain in Georgia for 60 days. Finally, in May 2005, after defendant was shot in New York City under circumstances upon which the present record sheds little light, Oman advised him during a recorded conversation that he, Oman, was about to receive “ten” and that Oman’s brother Eliese would give defendant “five,” so that defendant could “calmly leave” and go to Georgia. Oman promised to send the remaining “five” later via defendant’s girlfriend.

Also testifying for the prosecution was New York City Police Detective Rolando Rivera. Although Rivera, by the time of the trial and underlying investigation was assigned to the police Intelligence Division, in the late 1990s he had been deployed to the Manhattan North Narcotics “module” and, in that capacity, participated in the 1999 “take down” of the Gutierrez gang. He was familiar with many of the gang’s members — including their speaking voices and lingo — from having monitored a wire used by the gang during the investigation leading to the “take down.” He initially reviewed selected tape recordings of Oman Gutierrez’s prison phone calls made between December 2004 and May 2005 in response to a tip that the Gutierrezes had been involved in the January 2005 slaying of Contreras, and was eventually requested by the prosecution to translate, transcribe and analyze the recorded conversations. In the course of so doing, he met with Ms. Duran and Ms. Grullon.

At trial, Rivera was qualified by the court as an expert in decoding phone conversations. Some of his testimony bore upon the meanings of what were evidently consistently employed code words (e.g., “onion” for marijuana package, “toy” and “malacachin” for gun, and “sneakers” for thousands of dollars), but the bulk of it, covering a considerable portion of the trial transcript, consisted of interpreting portions of the phone conversation transcripts which, although sometimes veiled in their reference and import, were not encoded. Rivera’s transcript explications did not, in the main, draw upon any body of non-case specific expertise, but rather the information that he had acquired from various sources, most notably Ms. Duran, as a member of the team investigating and prosecuting the Contreras murder. His interpretations essentially harmonized the recorded conversations with the prosecution’s overall theory of how the murder plot was carried out, and almost without exception concurred with Ms. Duran’s account of what had been communicated between the coconspirators.

Defendant’s presently advanced appellate claim is that Detective Rivera should not have been permitted to testify as an expert respecting the uncoded portions of the conversations captured on the Gutierrez tapes — that his doing so invaded the factfinding province of the jury and impermissibly bolstered the testimony of Duran and other prosecution witnesses whose credibility might otherwise have been cast in doubt, since many of them were at the time of defendant’s trial themselves facing prosecution or had lengthy criminal histories, or some combination of the two. Moreover, several — including Duran — had been offered substantial consideration in exchange for their cooperation. Defendant claims relatedly that Detective Rivera was essentially a summation witness, put on the stand to tie together all the strands of the prosecution’s case for the jury much as a prosecutor would in summing up, but performing that task as a purveyor of case-specific expertise rather than as an advocate.

In affirming (109 AD3d 765 [2013]), the Appellate Division held Detective Rivera’s expert testimony to have been properly received (id. at 766), but expressed the view that even if parts of his testimony had been admitted in error, any error was harmless (id., citing People v Crimmins, 36 NY2d 230 [1975]). A Judge of this Court granted leave (22 NY3d 1199 [2014]) and we now affirm. Although considerable portions of Detective Rivera’s testimony were admitted in error, the proof of defendant’s commission of the charged crimes was overwhelming and we perceive no significant probability that, but for the error, the verdict, as it bore upon defendant, would have been less adverse (see Crimmins, 36 NY2d at 242).

It is, of course, the role of the jury to determine the facts of the case tried before it. The jury may be aided, but not displaced, in the discharge of its fact-finding function by expert testimony where there is reason to suppose that such testimony will elucidate some material aspect of the case that would otherwise resist comprehension by jurors of ordinary training and intelligence (see People v Cronin, 60 NY2d 430, 432 [1983]). The decision to allow the testimony of an expert is generally discretionary, and reviewable in this Court only where discretion has not been exercised (id. at 433) or has been abused (see id.). That said, there are situations — and this is one — in which an expert so palpably overtakes the jury’s function to decide matters within its unaided competence, that abuse may be found.

There is, to be sure, no categorical prohibition on the introduction of police expertise into the evidentiary calculus of a criminal trial. We have, for example, permitted expert testimony by a police sergeant respecting the way in which street-level drug sales are transacted to help a jury understand why the failure to recover drugs or marked buy-money from an individual apprehended in a buy-and-bust operation is not necessarily indicative of the accused’s misidentification (People v Brown, 97 NY2d 500 [2002]). It is instructive to note, however, that the testimony of the sergeant in Brown was carefully limited by the trial court to a discrete issue beyond the ken of ordinary jurors, and that the sergeant was not himself involved in the underlying investigation and gave no testimony as to what had actually occurred during the buy-and-bust there involved. The situation is very different where a police officer, qualified as an expert, has participated in the investigation of the matter being tried and, with the mantle of an expert steeped in the particulars of the case, gives seemingly authoritative testimony directly instructive of what facts the jury should find. Our cases have not dealt with this problematic scenario, but those of the Second Circuit, most notably United States v Mejia (545 F3d 179 [2d Cir 2008]) and United States v Dukagjini (326 F3d 45 [2d Cir 2002]), have.

In both of those cases, law enforcement officers involved in the investigations upon which the defendants’ prosecutions were founded were duly qualified as experts but permitted to testify as apparent experts beyond their expertise and upon matters well within the grasp of lay jurors. In exploring the full reach of the permission they had been afforded, they became summation witnesses, instructing the jury comprehensively and with an aura of expertise, as to how the particular factual issues presented in each case should be resolved. This, said the Mejia court, amounted to a “usurpation of the jury’s role” (545 F3d at 191), and was objectionable as well, in both Mejia and Dukagjini, for operating to inject hearsay into the evidentiary mix and to abridge the defendants’ constitutional right to confront the witnesses against them; both case agent witnesses, as putative experts, had premised their testimony largely on inadmissible out-of-court statements, even when that testimony ceased to be expert and went only towards proving particular facts.

While there is here no developed denial-of-confrontation claim presented — probably because the principal body of hearsay relied upon by Detective Rivera, composed of co-conspirator hearsay, did not contain statements that would qualify as testimonial under Crawford v Washington (541 US 36 [2004]) and because the principal out-of-court declarants with whom he consulted, Ms. Duran and Ms. Grullon, testified at trial and were subject to cross-examination — there appears little else to separate this case in its presentation of the basic evidentiary issue from Mejia and Dukagjini. Here, as in those cases, the trial court qualified a government agent, intimately involved in the investigation of the case and development of the prosecution, to testify as an expert and the agent ended up testifying beyond any cognizable field of expertise as an apparently omniscient expositor of the facts of the case.

Had Detective Rivera been qualified to testify simply as to the meaning of coded expressions in the Gutierrez recordings and his expert testimony been accordingly limited in scope (see People v Brown, 97 NY2d at 506), the receipt of that testimony would not now be problematic for its subject matter; it is not controversial that the meaning of coded communications is a proper subject of expert testimony (see Mejia, 545 F3d at 189; Dukagjini, 326 F3d at 52). Detective Rivera, however, was qualified by the trial court not simply to decode what was coded, but to decode telephone conversations generally and, as the trial progressed, it became evident that the court understood that permission to extend to explaining the meaning of virtually everything that was said during Oman Gutierrez’s recorded conversations, whether it was coded or not.

Mejia identified two ways in which a government agent qualified as an expert in decoding might exceed the scope of his expertise:

“The expert might, as did the agent in Dukagjini, ‘testif[y] about the meaning of conversations in general, beyond the interpretation of code words.’ Id.; see also United States v. Freeman, 488 F.3d 1217, 1227 (9th Cir.2007) (‘The fact that [the officer expert] possessed specialized knowledge of the particular language of drug traffickers did not give him carte blanche to testify as to the meaning of other words in recorded telephone calls without regard to reliability or relevance.’). Or, we noted, the expert might ‘interpret [ ] ambiguous slang terms’ based on knowledge gained through involvement in the case, rather than by reference to the ‘fixed meaning’ of those terms ‘either within the narcotics world or within this particular conspiracy.’ Dukagjini, 326 F.3d at 55” (Mejia, 545 F3d at 192-193).

The present record contains, in liberal measure, both species of error.

There are, in fact, very few code words of fixed meaning used in the recorded conversations about which Detective Rivera testified. Only a small number of expressions that would, even arguably, fit that description, are identified, and even those are not clearly referable to some fixed vocabulary in which expertise might be cultivated. To the extent, then, that the subject conversations’ meaning is not readily accessible, the difficulty is not, in the main, that the exchanges were coded, but that they were conducted in a shifting slang whose reference was not self-evident. Detective Rivera’s testimony consisted, in large part, of explaining what the conversers referred to based upon the investigative reconstruction in which he had taken part. But this kind of interpretive effort— resolving ambiguity in utterance by situating it within a particular extralinguistic context — is what juries commonly do, and this jury, at least presumptively, was as competent as any other to perform that task without having its work modeled and previewed for it by a purported expert in the case. It is always possible to suppose that there are those capable, on the basis of their extrajudicial inquiries and experience, of judging the facts more incisively than the individuals actually empaneled to do so, but that does not mean that in every case it would be appropriate to have an expert guide the jury through its fact-finding paces. Trials, by design, are not decided by those pre-schooled in the matter litigated, however thorough their extrajudicial education may have been; they are, to the contrary, decided independent of case-specific preconception on the basis of the evidence introduced during the proceeding itself in accordance with the rules of admissibility. Those rules, it is true, allow the receipt of expert opinion evidence to clarify relevant issues not amenable to understanding by jurors of average intelligence and experience, but such proof is not properly received where its purpose is simply to provide an alternative, purportedly better informed, gloss on the facts of the case. In the latter instance, vaunted expertise merely mimics, and seeks to substitute for that which it is the function of the trial to impart and of the jury to acquire in its course. Mejia put it particularly well: “when . . . officer experts come to court and simply disgorge their factual knowledge to the jury, the experts are no longer aiding the jury in its factfinding; they are instructing the jury on the existence of the facts needed to satisfy the elements of the charged offense” (545 F3d at 191).

Nothing we have said should be understood as critical of Detective Rivera’s investigative efforts; our concern is with the use to which his trial testimony was directed. His discovery, analysis, translation (where necessary from Spanish to English), and transcription of the Gutierrez prison tapes represented extraordinarily fine police work pivotal to this case’s development and preparation for trial. With respect to defendant, however, the evidence anchoring the prosecution at trial was not primarily what was said on the tapes, much less what Rivera said about what was said on the tapes, but the eyewitness accounts of defendant’s conduct immediately before and after the Contreras/Santos shootings. That proof was utterly compelling. Although each eyewitness’s credibility might certainly have been questioned, together the witnesses’s separately generated accounts meshed into a seamless narrative evidently conclusive of the identity of the individual responsible for the shootings. Once it was established through this testimony that defendant shot Contreras and Santos in the early hours of January 11, 2005 at the bodega on the corner of West 204th and Sherman, the general import of what was being discussed on the prison tapes would have been self-evident. Unaided, perhaps the jury would not have discerned every way in which the conversations bore upon the shootings, their motive, preparation and aftermath, but, in the large, the relation between defendant’s commission of the shootings and what was said on the prison tapes was manifest and not in need of express, much less expert, clarification. The taped conversations were, in any event, extensively explained by Ms. Duran during her appearance as a fact witness.

Defendant contends that Ms. Duran’s testimony was unduly bolstered by Detective Rivera’s ostensibly expert narrative substantially confirming her account. This would be a more powerful claim for relief if Ms. Duran’s testimony had been necessary to prove defendant’s guilt of murder. But, as noted, it was not. Her testimony was important to proving that defendant murdered Contreras for a price, i.e., that he committed first-degree murder, but the inference that he did so was, in light of the proof of the murder and its patent economic motive, far from obscure, and was made manifest by the taped conversations in which the contemplated payment to defendant and its funding source were discussed in close conjunction with the persistent post-slaying problem of managing defendant’s still unmet expectation that he would be compensated. Ms. Duran’s testimony, that it was understood that defendant would be paid for carrying off the assassination, was powerfully confirmed by the manifest content of the taped conversations. Detective Rivera’s imprimatur was entirely dispensable to the already overdetermined conclusion that the substantial sum earmarked for and expressly promised defendant by his incarcerated codefendant, could have been referable only to his murder of Contreras.

In deeming the error in admitting Detective Rivera’s extensive summation testimony harmless, we do not minimize the potency of this species of error to affect the outcome of a criminal trial. Plainly, had the error occurred in a somewhat different evidentiary context or involved a preserved denial-of-confrontation claim, it could well have dictated a reversal (compare Dukagjini, 326 F3d at 62 [evidentiary error not reversible given the strength of properly admitted evidence], with Mejia, 545 F3d at 202 [evidentiary error resulting in denial of confrontation reversible as not harmless beyond a reasonable doubt]; and see United States v Grinage, 390 F3d 746, 751 [2d Cir 2004] [Dukagjini error not harmless where government agent’s interpretation of phone calls was the principal evidence against the defendant and “the jury may well have afforded unusual authority to the agent, who was presented as having expertise, as well as knowledge beyond that available to the jury” (id. at 752)]). The result of this appeal, then, should not encourage any expectation that the harmless error doctrine will reliably insulate the practice of using government agents as expert summation witnesses, and trial courts should, accordingly, be vigilant against the serious risks that such usage entails.

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

Judges Read, Pigott, Rivera, Abdus-Salaam, Stein and Fa-hey concur.

Order affirmed.

      . The third parties — usually, individuals Oman had not received the requisite permission from prison authorities to telephone — were conferenced-in by Duran (who Oman was permitted to call) at Oman’s direction. Duran testified that she routinely remained on the line and overheard what was said, even if she was not included in the conversation, so as to be available to act as Oman’s de facto telephone operator.

      . Oman, although then, on work release, was required to spend Sundays at the Edgecombe facility. It emerged at trial that the killing had been originally set for January 9, 2005, a Sunday, to provide Oman an alibi of sorts.

      . There was trial testimony that in July 2004, as defendant left the scene of a turf-related altercation on West 204th Street, he fired a gun in Ortiz’s direction.


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [34 NE3d 847, 13 NYS3d 337]
    The People of the State of New York, Respondent, v Steven Lashway, Appellant.
    Argued May 7, 2015;
    decided June 11, 2015

      POINTS OF COUNSEL

      Marcy I. Flores, Warrensburg, for appellant.
    I. The appellant was deprived of due process of law by the Clinton County Court’s failure to abide appellant’s motion, made prior to his reclassification hearing, for access to copies of all the records that the Board of Examiners of Sex Offenders reviewed and listed in making its updated recommendation on his reclassification risk level classification hearing. (Doe v Pataki, 3 F Supp 2d 456; E.B. v Verniero, 119 F3d 1077; Fusari v Stein-berg, 419 US 379; People v Rodriguez, 102 AD3d 457; Morrissey v Brewer, 408 US 471; People v Wyant, 86 AD3d 754; People v Gutierrez-Lucero, 103 AD3d 89; People v David W., 95 NY2d 130; People v Sass, 27 AD3d 968; People v Sanchez, 20 AD3d 693.) II. The Clinton County Court abused its discretion in refusing to grant the appellant an adjournment so that the requested documents could be obtained, which denial operated to deprive him of a fair hearing. (People v Pepe, 79 AD2d 1011; Morris v Slappy, 461 US 1; People v Droz, 39 NY2d 457; People v Bennett, 29 NY2d 462; People v Di John, 48 AD3d 1302; People v Spears, 64 NY2d 698; People v McNear, 265 AD2d 810, 94 NY2d 864; People v Arroyo, 161 AD2d 1127, 76 NY2d 852; People v Peterkin, 81 AD3d 1358.) III. The Clinton County Court erred in denying the appellant access to an adjournment so that the requested documents could be obtained, which denial operated to deprive him of a fair hearing which was not harmless error. IV. The appellant was denied his right to controvert evidence by the failure of the Clinton County Court to adjourn the case to allow the documents relied upon by the Board of Examiners of Sex Offenders in creation of the risk assessment instrument to be provided to the appellant’s attorney before the start of the hearing. (Kropp v Town of Shandaken, 91 AD3d 1087; Matter of New York State Bd. of Examiners of Sex Offenders v Ransom, 249 AD2d 891; People v Douglas, 18 AD3d 967; W.P. v Poritz, 931 F Supp 1199.)

      Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel), for respondent.
    Denying the adjournment request, made the day of the hearing, was a proper exercise of discretion. (People v Windham, 10 NY3d 801; People v Pettigrew, 14 NY3d 406; People v Mingo, 12 NY3d 563; People v Gillotti, 23 NY3d 841; Woe v Spitzer, 571 F Supp 2d 382; People v David W., 95 NY2d 130; People v Johnson, 11 NY3d 416; People v Gutierrez-Lucero, 103 AD3d 89; People v Brooks, 308 AD2d 99; Doe v Pataki, 481 F3d 69.)
   OPINION OF THE COURT

Pigott, J.

The issue on this appeal is whether County Court abused its discretion when denying defendant’s request for an adjournment of his reclassification hearing of his risk level status under the Sex Offender Registration Act (SORA) (see Correction Law § 168-o). Under the circumstances of this case, we conclude County Court did not abuse its discretion.

Defendant was convicted in 1990 of three counts of rape in the second degree, perpetrated against an 11-year-old child while he was on parole for an earlier rape conviction. He was sentenced as a second felony offender to IOV2 to 21 years in prison. Prior to his release in 2004, defendant was adjudicated a risk level three sex offender under SORA (see Correction Law art 6-C). Defendant thereafter violated parole and was returned to prison.

In June 2010, while under civil confinement pursuant to Mental Hygiene Law article 10, defendant filed a petition under Correction Law § I68-0 for a downward modification of his risk level. After receiving his petition, County Court solicited an updated recommendation from the New York State Board of Examiners of Sex Offenders (the Board) (see Correction Law § I68-0 [4]).

The Board indicated by letter that it had reviewed a list of documents including, among other things, the original risk assessment instrument and two emails: one from the Division of Parole dated July 21, 2010 and another from the Office of the Attorney General dated July 22, 2010. The Board noted that defendant has been civilly confined pursuant to Mental Hygiene Law article 10, which information would have resulted in a presumptive level three designation under the SORA Risk Assessment Guidelines had it been available at the time of the initial SORA hearing, and that defendant had continued to “accrue criminal convictions” and demonstrate violent behavior. Thus, the Board did not recommend a reduction in his risk level classification.

County Court summarily denied defendant’s modification request without conducting a hearing. The Appellate Division held that defendant was entitled to a hearing and remitted to County Court for further proceedings (90 AD3d 1178 [2011], lv dismissed 18 NY3d 945 [2012]).

Upon request from County Court, the Board submitted another updated recommendation which simply attached its July 2010 recommendation, and stated that defendant had since incurred multiple tier II and tier III infractions and was unlikely to be released before his maximum incarceration date of March 31, 2014. A reclassification hearing was scheduled. Shortly before the hearing, counsel for defendant submitted a proposed order to show cause why the Board should not be directed to deliver to County Court, on the date of the hearing, a copy of all of the documents that the Board listed in its July 2010 and March 2012 updated recommendations. County Court signed the order. The Board responded by providing most of the documents, but not the 2010 emails.

At the hearing, defendant’s counsel requested an adjournment pending receipt of the missing documents, which County Court denied. The hearing proceeded with defendant arguing that three factors warranted his downward departure: he had not committed a new sex offense in over 26 years; he completed programs during his incarceration; and he has medical issues. The People adduced evidence of multiple disciplinary actions that had been taken against defendant while in state custody. They further argued that, regardless of any scoring factors, because defendant has had two felony sex offenses, he qualified for a presumptive override and level three designation. County Court denied defendant’s modification request, holding that he failed to establish by clear and convincing evidence that he was entitled to a downward modification.

The Appellate Division, with one Justice dissenting, affirmed (112 AD3d 1235 [3d Dept 2013]). As relevant to this appeal, the Court rejected defendant’s claim that County Court erred in denying his request for an adjournment (id. at 1237). The Court noted that the Board’s updated recommendation stated only that it “ ‘reviewed’ ” the subject documents, and not that it relied upon them (id.). Even “[m]ore significantly,” it stated, “County Court was not bound by the Board’s recommendation as to whether to modify defendant’s risk assessment level, and there is no evidence — nor does defendant argue — that County Court was in possession of, let alone considered, the subject documents in making its determination” {id. at 1237-1238 [citations omitted]). Rather, County Court had denied the modification based on “the finding that defendant had a mental abnormality, his violation of parole, his assaultive behavior while in custody and the presumptive override resulting from his prior felony conviction of a sex crime” {id. at 1238). Although the Court recognized that defendant was entitled to discovery of the materials, it noted that “discovery is subject to certain limitations and the court has ‘considerable discretion to supervise the discovery process’ ” (id., quoting Kropp v Town of Shandaken, 91 AD3d 1087, 1092 [3d Dept 2012]). The Court concluded that County Court had not abused its discretion in declining to adjourn the hearing in light of defendant’s “protracted delay” in requesting the documents {id. at 1238-1239). Furthermore, the majority disagreed with the dissent that the denial of the adjournment deprived defendant of due process, observing that “[d]ue process is ‘a flexible concept’ and a defendant’s due process rights in [a reclassification] context are similar, but not identical to, the rights of a defendant in an initial risk assessment” {id. at 1239 [citations omitted]). In this case, the Court held, “defendant was neither denied the ability to offer relevant materials in support of his application nor prevented from defending himself against any evidence or documentation relied upon by County Court in deciding such application” {id.).

Justice Spain dissented and voted to reverse the denial of defendant’s application to modify his classification and remit for a hearing {see id. at 1239-1240). Justice Spain concluded that “defendant was deprived of due process of law by County Court’s failure to abide [his] motion . . . for access to copies of all of the records that the Board . . . reviewed and listed in making its updated recommendations” {id.). He reasoned that the recommendation of the Board, although not binding on the court, “in practice ... is often among the most influential factors considered by a sentencing court” {id.). Thus, in the context of a reclassification proceeding in which the defendant has the burden of proof, “the defense will frequently focus its challenge on the underlying basis for the Board’s adverse recommendation” {id.). According to the dissent, due process requires that a defendant be “afforded access — through prehearing discovery — to all material considered on or influencing his reclassification petition” (id. at 1241). Moreover, “[defendant's right to submit any information relevant to the review of his reclassification request would, in many cases, be rendered meaningless if he were not entitled to review and address all materials considered by the Board” (id. [internal quotation marks and citation omitted]). In the dissent’s view, County Court did not itself rely on the materials withheld; however, it did “expressly rely on the Board’s recommendation, which did consider the materials” (id.). Although it could not be discerned whether the denial of the withheld material affected the reclassification determination, the dissent concluded that he could “not agree that the error was harmless or overlook the deleterious precedential value of an affirmance in this case” (id. at 1242).

Defendant argues on this appeal that he was deprived of due process of law when County Court failed to grant an adjournment so as to give him access to copies of all the records that the Board reviewed and listed in making its updated recommendation.

Correction Law § 168-o (2) permits a sex offender required to register under SORA to petition annually for modification of his risk level classification. The petitioner bears the burden of proving the facts supporting a requested modification by clear and convincing evidence (see Correction Law § 168-o [2]). The court ultimately determines a petitioner’s SORA risk level, and is not bound by the Board’s recommendation, from which it may depart in considering the record (see Correction Law § 168-n [2], [3]). Where the hearing court’s findings, expressly made under the proper evidentiary standard, are affirmed by the Appellate Division, this Court’s review is limited to whether the decisions below are affected by an error of law or are otherwise not supported by the record.

In an initial risk level determination, where the People carry the burden, the due process rights of a petitioner include, among other things, prehearing discovery (see Doe v Pataki, 3 F Supp 2d 456 [SD NY 1998]). Therefore, defense counsel is entitled by statute to prehearing access to the documents reviewed by the Board prior to his or her initial SORA determination. However, initial risk level assessments and reclassification petitions by statute are different.

Section 168-o (4), applicable when a petitioner seeks modification of the risk level, does not contain any language entitling a petitioner to prehearing discovery, but simply provides that a petitioner has a right to submit “any information relevant to the review.” Further, the right to petition the sentencing court to be “relieved of any further duty to register” under Correction Law § 168-0 (1) does not permit the court to review the correctness of the initial risk level determination (see Correction Law § 168-g [4]; People v David W., 95 NY2d 130, 140 [2000]). While there are statutory differences in the two proceedings, we agree with defendant that the procedural due process rights, in regard to the requested documents, were the same. Thus, defendant was entitled to access to the documents.

Nonetheless, it is well-settled that the decision to grant an adjournment is a matter of discretion for the hearing court (People v Singleton, 41 NY2d 402, 405 [1977]). “[W]hen the protection of fundamental rights has been involved in requests for adjournments, that discretionary power has been more narrowly construed” (People v Spears, 64 NY2d 698, 700 [1984]). Under the circumstances of this case, it cannot be said the court abused its discretion as a matter of law in failing to adjourn the hearing to gather the two emails.

The record evidence is overwhelming in support of the denial of any modification. Defendant is a repeat sex offender who has been found to have a mental abnormality and has continued to incur multiple infractions while incarcerated. Given the strong case against modification, defendant was not prejudiced by the court’s denial of an adjournment to obtain the documents (see People v Rodriguez, 102 AD3d 457, 457 [2013], affd 21 NY3d 1030 [2013]). Moreover, as the Appellate Division noted, defendant is entitled to make a new application for reclassification in a year (see Correction Law § 168-0 [2]) and can obtain the documents by making a timely request.

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

Chief Judge Lippman and Judges Read, Rivera, AbdusSalaam and Fahey concur; Judge Stein taking no part.

Order affirmed, without costs.


author: Rivera, J.

text:
    [36 NE3d 80, 15 NYS3d 277]
    Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A., “Rabobank International,” New York Branch, Respondent, v Francisco Javier Herrera Navarro, Appellant, et al., Defendant.
    Argued May 5, 2015;
    decided June 9, 2015

      POINTS OF COUNSEL

      Curtis, Mallet-Prevost, Colt & Mosle LLP, New York City (T Barry Kingham and Francesca M. Erts of counsel), for appellant.
    I. Francisco Javier Herrera Navarro did not waive Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A., “Rabobank International,” New York Branch’s collusion. (Preamble Props. v Woodard Antiques Corp., 293 AD2d 330; Canterbury Realty & Equip. Corp. v Poughkeepsie Sav. Bank, 135 AD2d 102; Citibank v Plapinger, 66 NY2d 90; Lane v Lane, 175 AD2d 103; South Spring Hill Gold Mining Co. v Amador Medean Gold Mining Co., 145 US 300; Red Tulip, LLC v Neiva, 44 AD3d 204; Pike v New York Life Ins. Co., 72 AD3d 1043; European Am. Bank v Mr. Wemmick, Ltd., 160 AD2d 905.) II. Material issues of fact preclude summary judgment.

      Haynes and Boone LLP, New York City (Jonathan D. Pressment and Yelena Kotlarsky of counsel), for respondent.
    I. A de novo standard governs this appeal. (Rothouse v Association of Lake Mohegan Park Prop. Owners, 15 AD2d 739.) II. The Appellate Division’s order should be affirmed. (Davimos v Halle, 35 AD3d 270; Juste v Niewdach, 26 AD3d 416; Famolaro v Crest Offset, Inc., 24 AD3d 604; Zheng v City of New York, 19 NY3d 556; Rojas-Wassil v Villalona, 114 AD3d 517; Branham v Loews Orpheum Cinemas, Inc., 31 AD3d 319, 8 NY3d 931; Public Serv. Mut. Ins. Co. v Zucker, 225 AD2d 308; Greenfield v Philles Records, 98 NY2d 562; Laba v Carey, 29 NY2d 302; Beal Sav. Bank v Sommer, 8 NY3d 318.)
   OPINION OF THE COURT

Rivera, J.

On this appeal, defendant guarantor seeks to avoid liability as provided under an “unconditional and absolute” guaranty in favor of plaintiff, on grounds that the default judgment against him, which constitutes the subject underlying debt, was obtained by plaintiff’s collusion. We conclude the Appellate Division properly held that defendant’s collusion claim constitutes a defense, barred by the express language of the guaranty, and, in any event, that his claim of collusion is contradicted by the record. Therefore, we affirm.

L

Defendant Francisco Herrera Navarro was a chief executive officer and director of now bankrupt Agra Services of Canada, Inc. (Agra Canada), and an officer and director of Agra USA. Agra Canada was a Canadian corporation which traded physical agricultural commodities between Canada and Mexico. Agra Canada was also the sole shareholder of Agra USA. This appeal involves defendant’s liability under a personal guaranty for a debt arising from litigation which can be traced back to payments made for fictitious business transactions attributed to Agra Canada.

According to the undisputed facts, Agra Canada entered a purchase agreement with plaintiff Cooperatieve Céntrale Raiffeisen-Boerenleenbank B.A., “Rabobank International,” New York Branch (Rabobank), under which Rabobank purchased and financed certain receivables of Agra Canada (the purchase agreement). Specifically, Rabobank made regularly scheduled payments to purchase any indebtedness or obligations owed to Agra Canada arising from the sale of its goods to its importers.

A year after execution of the purchase agreement defendant and Eduardo Guzman Solis (Guzman Solis), president of Agra Canada and manager of both Agra businesses, signed separate, individual and identical personal guaranties in favor of Rabobank (the guaranty). Pursuant to section 1 (a), defendant guaranteed all obligations and liabilities of Agra Canada arising and outstanding under the purchase agreement, not covered by insurance, and further guaranteed under section 1 (b) all obligations and liabilities of Agra USA to Rabobank “now or hereafter existing, including without limitation . . . principal, interest, fees, expenses or otherwise.”

Liability under the guaranty is “absolute and unconditional” as provided in section 2, which states

“SECTION 2. Guaranty Absolute. The Guarantor guarantees that the Obligations will be paid strictly in accordance with the terms of the applicable agreements, notes or other instruments under which the Obligations arise, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Purchaser with respect thereto. The liability of the Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
“(i) any lack of validity or enforceability of any such agreement, note or other instrument;
“(ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to departure from any such agreement, note or other instrument;
“(in) any exchange, release or non-perfection of any collateral, or any release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the Obligations; or
“(iv) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Seller or a guarantor.
“This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Obligations is rescinded or must otherwise be returned by the Purchaser upon the insolvency, bankruptcy or reorganization of the Seller or otherwise, all as though such payment had not been made.”

Six years after the execution of their respective guaranties, Guzman Solis died, which precipitated Rabobank’s discovery of millions of dollars due from Agra Canada under the purchase agreement. Defendant’s subsequent investigation into Rabobank’s payment demands revealed fraudulent receivables based on nonexistent transactions submitted by Guzman Solis. Defendant claims to have no knowledge or involvement regarding this scheme to defraud Rabobank.

Rabobank successfully petitioned for an order instituting bankruptcy proceedings against Agra Canada in a Canadian bankruptcy court. Thereafter, the bankruptcy court appointed Deloitte & Touche, Inc. as receiver and trustee of Agra Canada.

The following month, on March 2, 2012, Rabobank commenced an action in the United States District Court for the Southern District of New York, against defendant, Agra USA, and the estate of Guzman Solis seeking to recover the millions owed Rabobank under the purchase agreement and the guaranties. Defendant appeared represented by counsel he retained for his own behalf, but failed to retain counsel for Agra USA. Upon Agra USA’s failure to answer or otherwise respond, on April 3, 2012, Rabobank secured from the Clerk of the Court a certificate of default against Agra USA, in accordance with Federal Rules of Civil Procedure rule 55 (a).

On April 11, 2012, Agra Canada removed all officers and directors of Agra USA, including defendant, and elected and installed a Deloitte & Touche representative as president and sole officer and director. Then, on April 16, 2012, Rabobank filed an order to show cause for entry of default judgment against Agra USA, pursuant to Federal Rules of Civil Procedure rule 55 (b) (2), which the District Court ultimately entered and filed on April 30, 2012, awarding Rabobank $41,991,980. In the interim, on April 19, 2012, Rabobank voluntarily discontinued without prejudice its action against defendant, pursuant to Federal Rules of Civil Procedure rule 41 (a) (1) (A) (i).

The same day that the Southern District Court entered the default judgment Rabobank filed the underlying action in state court, by summons and accompanying motion for summary judgment in lieu of complaint pursuant to CPLR 3213. Rabobank alleged defendant was liable under the guaranty, section 1 (a), for the outstanding millions owed it under the purchase agreement, and, alternatively, under section 1 (b), based on the federal default judgment.

Defendant opposed the motion, arguing that Guzman Solis fraudulently obtained payments from Rabobank by way of his exclusive control over Agra Canada’s business activities, and that the guaranty did not encompass fraudulent transactions— only “uninsured outstanding sums on the ‘accounts receivable.’ ” Defendant contended that “accounts receivable” represent sums owed on an actual sale, and since the accounts receivable are fictitious, “there are no sales that actually give rise to any sum ‘owed on said account receivable’ as defined in the [purchase] [a]greement.”

Supreme Court denied Rabobank’s motion. The court held that questions of fact as to the existence of actual “receivables” precluded summary judgment based on section 1 (a) of the guaranty (2012 NY Slip Op 33773[U] [2012]). The court further concluded that summary judgment was not proper based on section 1 (b) because issues of fact existed as to who controlled Agra USA during the course of the Southern District action, at the time of default and when judgment was entered.

In a split decision, the Appellate Division reversed Supreme Court and granted Rabobank summary judgment (Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A., “Rabobank Intl.,” N.Y. Branch v Navarro, 113 AD3d 457 [1st Dept 2014]). The majority concluded that the guaranty’s waiver provision precluded defenses as to the existence of an enforceable “obligation,” including defendant’s assertion of plaintiff’s collusion (id. at 459). The majority held that the collusion claim was, in fact, a defense and not, as defendant and the dissent argued, a condition precedent (id. at 459-460, citing 23 NY Jur 2d, Contribution, Indemnity, and Subrogation § 155 [in indemnity context, noting that an indemnitor “may always set up the defense that the judgment in the prior action against the indemnitee was procured by collusion or fraud”]). The two justices in dissent, relying on Canterbury Realty & Equip. Corp. v Poughkeepsie Sav. Bank (135 AD2d 102 [3d Dept 1988]), determined that “[i]f the judgment was obtained as a result of collusion, it cannot constitute a valid ‘obligation’ of Agra USA covered by the terms of the guarantee” (Cooperatieve, 113 AD3d at 463).

On appeal to this Court, defendant does not challenge the validity of the guaranty or nonpayment of the obligations covered by the guaranty and purchase agreement. Instead, he challenges whether a valid underlying debt exists, which he argues presents a question as to whether plaintiff met its summary judgment burden by establishing, as a condition precedent, an obligation that is owed and due. In support of his position, defendant avers that the alleged “obligation” here is a default judgment obtained through collusion.

Rabobank contends that defendant’s argument that the federal judgment fails to qualify as a “valid obligation” is, in reality, a defense that defendant expressly waived under the guaranty. Rabobank also challenges defendant’s collusion argument as “a baseless conspiracy theory,” and argues that defendant was a party to the federal lawsuit but simply failed to act to protect his personal interest, or that of Agra USA.

IL

Pursuant to CPLR 3213, “[w]hen an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint.” CPLR 3213 was enacted “to provide quick relief on documentary claims so presumptively meritorious that a formal complaint is superfluous, and even the delay incident upon waiting for an answer and then moving for summary judgment is needless” (see Weissman v Sinorm Deli, 88 NY2d 437, 443 [1996] [internal quotation marks omitted]). An unconditional guaranty is an instrument for the payment of “money only” within the meaning of CPLR 3213 (European Am. Bank & Trust Co. v Schirripa, 108 AD2d 684 [1st Dept 1985], citing Manufacturers Hanover Trust Co. v Green, 95 AD2d 737 [1st Dept 1983]).

To meet its prima facie burden on its summary judgment motion, Rabobank must prove “the existence of the guaranty, the underlying debt and the guarantor’s failure to perform under the guaranty” (see Davimos v Halle, 35 AD3d 270, 272 [1st Dept 2006], citing City of New York v Clarose Cinema Corp., 256 AD2d 69, 71 [1st Dept 1998]). Thereafter, “the burden shifts to the defendant to establish, by admissible evidence, the existence of a triable issue with respect to a bona fide defense” (Cutter Bayview Cleaners, Inc. v Spotless Shirts, Inc., 57 AD3d 708, 710 [2d Dept 2008] [citation and internal quotation marks omitted]). Here, Rabobank submitted a copy of the purchase agreement, the guaranty signed by defendant, as well as proof of receivables due pursuant to the purchase agreement, and the federal default judgment entered against Agra USA. Defendant objected, claiming triable issues of fact exist as to the applicability of the guaranty. Thus, resolution of this appeal requires determination of whether defendant’s challenge to Rabobank’s demand for summary judgment is foreclosed by the guaranty. If it is, then on this record, summary judgment was properly granted to Rabobank.

We agree with Rabobank that defendant’s challenge constitutes a defense precluded by the guaranty and, on the facts of this case and the record presented, his allegations of collusion cannot overcome his “absolute and unconditional” liability. We therefore affirm the Appellate Division.

m.

A guaranty is a promise to fulfill the obligations of another party, and is subject “to the ordinary principles of contract construction” (Compagnie Financiere de CIC et de L’Union Europeenne v Merrill Lynch, Pierce, Fenner & Smith Inc., 188 F3d 31, 34 [2d Cir 1999], citing Banco Portugues do Atlantico v Asland, S.A., 745 F Supp 962, 967 [SD NY 1990], People v Stuyvesant Ins. Co., 98 Misc 2d 210, 213 [Sup Ct, Bronx County 1979], and 63 NY Jur 2d, Guaranty and Suretyship §§ 2, 89). Under those principles, “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Greenfield v Philles Records, 98 NY2d 562, 569 [2002]).

Guaranties that contain language obligating the guarantor to payment without recourse to any defenses or counterclaims, i.e., guaranties that are “absolute and unconditional,” have been consistently upheld by New York courts (see Citibank v Plapinger, 66 NY2d 90 [1985]; Chemical Bank v Sepler, 60 NY2d 289 [1983]; Federal Deposit Ins. Corp. v Schwartz, 78 AD2d 867 [2d Dept 1980], affd 55 NY2d 702 [1981]; see also First N.Y. Bank for Bus. v DeMarco, 130 BR 650, 654 [SD NY 1991]). “Absolute and unconditional guaranties have in fact been found to preclude guarantors from asserting a broad range of defenses” (Compagnie, 188 F3d at 35; see United Orient Bank v Bao Lee, 223 AD2d 500 [1st Dept 1996] [where guaranties contained waivers of all defenses other than payment, defendants precluded from asserting claims of release]; Gannett Co. v Tesler, 177 AD2d 353, 353 [1st Dept 1991] [defendant precluded from asserting any defenses or counterclaims, including “discharge in release”]; see also American Trading Co. v Fish, 42 NY2d 20, 26 [1977] [guarantor may not raise as a defense the expiration of the statute of limitations against the primary obligor]; Walcutt v Clevite Corp., 13 NY2d 48, 55 [1963] [guarantor may not raise as counterclaims or defenses those claims belonging to the principal obligor]).

This Court has acknowledged the application of these absolute guaranties even to claims of fraudulent inducement in the execution of the guaranty, as illustrated by the holding in Citibank v Plapinger (66 NY2d 90 [1985]). In that case, defendants were officers, directors and shareholders in a company which secured a line of credit from plaintiff banks. After the company defaulted, it restructured its debt as a term loan, guaranteed by defendants. When the company subsequently filed for bankruptcy, the banks declared the term loan and interest immediately due, and sued defendants on the guaranty. Among their defenses to the litigation, defendants asserted fraud in the inducement, based on alleged false or recklessly made statements of the banks that they would provide the company with an additional line of credit as part of the debt restructuring. Defendants argued that but for verbal assurances that the banks would issue the credit, defendants would not have signed the guaranty on the term loan.

The Court held that under the “absolute and unconditional” language of the guaranty, defendants were foreclosed from asserting their fraud in the inducement defense. In reaching this conclusion the Court rejected the need for defendants’ specific disclaimer of reliance on the banks’ oral representations. Instead, the Court determined, quoting from the guaranty, that defendants agreed “that the ‘absolute and unconditional’ nature of their guarantee was ‘irrespective of (i) any lack of validity ... of the . . . Loan Agreement ... or any other agreement or instrument relating thereto,’ or ‘(vii) any other circumstance which might otherwise constitute a defense’ to the guarantee” (Plapinger, 66 NY2d at 95). Given the substance of the guaranty, to permit defendants to assert that the bank induced them to sign “would in effect condone defendants’ own fraud in ‘deliberately misrepresenting [their] true intention’ (Danann Realty Corp. v Harris, 5 NY2d [317, 323 (1959)]) when putting their signatures to their ‘absolute and unconditional’ guarantee” (Plapinger, 66 NY2d at 95). In other words, because defendants had assured the banks that their guaranty to pay the loan was not subject to any defenses, they were bound to their promise.

Here, defendant personally guaranteed the obligations owed by Agra Canada under the purchase agreement, as well as obligations owed by Agra USA. Moreover, defendant specifically agreed that his “liability . . . under this Guaranty shall be absolute and unconditional irrespective of: (i) any lack of validity or enforceability of [the] agreement. . . ; . . .or (iv) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Seller [Agra Canada] or a guarantor.”

By its plain terms, in broad, sweeping and unequivocal language, the guaranty forecloses any challenge to the enforceability and validity of the documents which establish defendant’s liability for payments arising under the purchase agreement, as well as to any other possible defense to his liability for the obligations of the Agra businesses. Indeed, this is the same language which foreclosed the defendants’ fraud in the inducement defense in Plapinger (see id.).

Defendant seeks to avoid the application of the guaranty, and our holding in Plapinger, by arguing that Rabobank failed to satisfy its summary judgment burden because a question of material fact exists regarding whether the federal default judgment constitutes an obligation covered by the guaranty. It is true that a guarantor is only liable upon the noncompliance of the principal obligor (see Madison Ave. Leasehold, LLC v Madison Bentley Assoc. LLC, 30 AD3d 1, 10 [1st Dept 2006], affd 8 NY3d 59 [2006], citing Brewster Tr. Mix Corp. v McLean, 169 AD2d 1036, 1037 [3d Dept 1991], and General Phoenix Corp. v Cabot, 300 NY 87, 95 [1949]). However, defendant does not contest Agra Canada’s failure to comply with the terms of the purchase agreement. Indeed, he would be hard-pressed to make such an argument because his own investigation affirmed Rabobank’s assertions that Guzman Solis submitted fraudulent transactions in exchange for advances on nonexistent receivables.

Instead, defendant argues that the federal default judgment cannot serve as a debt for which he is liable under the guaranty because the judgment is unlawful, having been obtained by collusion, through Rabobank’s control over Agra USA. Defendant goes further and contends that the existence of a valid underlying debt is a condition precedent to recovery on the guaranty. We are unpersuaded by defendant’s variations on the same theme that he does not owe Rabobank, because no matter how defendant characterizes his challenge, it is ultimately based on a quintessential defense of fraud. As such, he remains subject to his agreed upon absolute and unconditional liability because he claims a “circumstance which might otherwise constitute a defense available to ... a guarantor,” barred under section 2 (iv) (see 23 NY Jur 2d, Contribution, Indemnity, and Subrogation § 155 [“indemnitor may always set up the defense that the judgment in the prior action against the indemnitee was procured by collusion or fraud”]; see also Plapinger, 66 NY2d at 92). Were we to accept defendant’s argument, we would ignore this Court’s admonition in Plapinger, and “in effect condone defendant [’s] own fraud in ‘deliberately misrepresenting [his] true intention’ . . . when putting [his] signature [ ] to [his] ‘absolute and unconditional’ guarantee” {id. at 95).

Defendant, and the dissent below, rely on Canterbury Realty & Equip. Corp. v Poughkeepsie Sav. Bank (135 AD2d 102 [3d Dept 1988]) to establish, in essence, a categorical exception for collusion claims from the absolute liability provision of the guaranty at issue here. However, such a per se rule is contrary to the Plapinger Court’s holding that a guarantor cannot seek to benefit from the guarantor’s own fraudulent promise that the guaranty is “absolute and unconditional.” In any case, the Third Department’s holding in Canterbury is more narrow than defendant contends, and does not support the expansive proposition he promotes on this appeal.

In Canterbury, plaintiff corporation, Canterbury, secured financing and a line of credit from defendant bank. Certain corporate officers and shareholders signed instruments that “irrevocably and unconditionally guarantee [d] payment when due ... of any and all liabilities of [Canterbury] to the Bank” (135 AD2d at 104). After initially increasing the credit line, the bank informed Canterbury that it would no longer honor checks drawn against the line of credit, including any that were then outstanding. The bank also retained Canterbury’s accounts receivable. When Canterbury was unable to meet its costs and immediately ceased operating, the bank accelerated the debt. Canterbury filed suit and the bank answered and counterclaimed against the individuals based on their personal guaranties. In affirming the denial of the bank’s summary judgment motion on its counterclaims, the Appellate Division distinguished Plapinger, finding this Court’s decision was based upon claimed misrepresentations inconsistent with the express terms of the unconditional guaranty and the guarantor’s own representations, whereas in Canterbury the guarantor argued that the bank caused the event that led to the guarantor’s liability. Thus, Canterbury stands for the proposition that an absolute and unconditional guaranty does not foreclose a guarantor’s challenge that the creditor’s wrongful post-execution conduct triggered the event that accelerates or causes the guarantor’s liability.

Here, defendant does not contend that Rabobank’s conduct led to the fraudulent transactions — those were designed by Guzman Solis, and defendant makes no claim of collusion between Guzman Solis and Rabobank. Defendant does not argue that the violation of the obligations were caused, expedited, or otherwise facilitated by Rabobank as part of a collusive effort to cash in on the guaranty. Instead, defendant claims that Rabobank has failed to establish obligations owed by him under the guaranty because Rabobank’s default judgment was secured through collusion facilitated by Rabobank’s control over Agra USA. That argument is a defense waived under the broad, inclusive, in no way limited, language of subparagraph (iv) of the guaranty.

We note that, in the same vein as the holding in Canterbury, there is federal case law that suggests that there may be certain fraudulent conduct that falls outside the scope of an unconditional and absolute guaranty. For example, the Second Circuit has remarked, without deciding, such a case may exist where a debtor and a creditor have colluded to obtain payments from the guarantor, while at the same time increasing the risk that the guarantor cannot recover from the original borrower (see Compagnie, 188 F3d at 37-38 [Sotomayor, J.]). On this appeal, given that defendant’s own actions undermine his collusion claim, we need not decide whether certain conduct by a creditor and/or debtor may be of such character, and so impacts the guarantor’s position, that the guarantor may challenge these acts notwithstanding our prior holding in Plapinger.

Here, defendant concedes that when Rabobank filed its federal action, he was the sole officer and director of Agra USA. Yet defendant failed to obtain counsel for Agra to respond to the federal suit, while obtaining counsel to respond on his behalf as a named defendant in his individual capacity. Thus, defendant’s “collusion” defense is meritless.

We further note that defendant is not unfamiliar with the world of commercial dealings. As the record establishes, he is a certified public accountant and business advisor, who served as a director of Agra Canada and Agra USA, and chief executive officer of Agra Canada. He is no neophyte. Rather, he is a sophisticated businessperson, who was free to negotiate for protection against the very acts he claims should bar Rabobank’s alleged conduct (see e.g. Quadrant Structured Prods. Co., Ltd. v Vertin, 23 NY3d 549, 568 [2014] [sophisticated parties, especially, are charged with knowledge of the surrounding law and the consequences of the agreements they freely negotiate and assent to]). Defendant failed to do so, and he now cannot seek to escape liability under the guaranty.

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

Chief Judge Lippman and Judges Read, Pigott, AbdusSalaam, Stein and Fahey concur.

Order affirmed, with costs.

      . Federal Rules of Civil Procedure rule 55 (a) provides that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.”

        . Federal Rules of Civil Procedure rule 55 (b) (2) requires the party seeking entry of a default judgment to apply directly to the court in cases not involving a sum certain or one made certain by computation.

      . In October 2013, Rabobank also obtained a default judgment on the entire amount against the estate of Guzman Solis.

      . Federal Rules of Civil Procedure rule 41 provides for the voluntary dismissal of an action by the plaintiff, without a court order, upon the filing of “a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment” (Fed Rules Civ Pro rule 41 [a] [1] [A] [i]).