author: Chief Judge Lippman. Read, J. (dissenting).

text:
    [999 NE2d 524, 977 NYS2d 161]
    In the Matter of Paul Murphy, Respondent, v New York State Division of Housing and Community Renewal, Appellant, et al., Respondent.
    Argued September 4, 2013;
    decided October 17, 2013

      POINTS OF COUNSEL

      Eric T. Schneiderman, Attorney General, New York City (Brian A. Sutherland, Barbara D. Underwood and Steven C. Wu of counsel), for appellant.
    I. Paul Murphy’s undisputed failure to meet the New York State Division of Housing and Community Renewal’s income-affidavit requirement supports the denial of his succession application. (Matter of Renda v New York State Div. of Hous. & Community Renewal, 22 AD3d 382; Matter of Miney v Donovan, 68 AD3d 876, 15 NY3d 712; Matter of Meyers v New York State Div. of Hous. & Community Renewal, 68 AD3d 1518, 14 NY3d 714; Matter of Cognata v New York State Div. of Hous. & Community Renewal, 82 AD3d 482; Taylor v New York State Div. of Hous. & Community Renewal, 73 AD3d 634; Matter of Greichel v New York State Div. of Hous. & Community Renewal, 39 AD3d 421; Parsa v State of New York, 64 NY2d 143; United States v Boyle, 469 US 241; Heckler v Community Health Services of Crawford Cty., Inc., 467 US 51; Matter of Gaines v New York State Div. of Hous. & Community Renewal, 90 NY2d 545.) II. Substantial evidence supports the New York State Division of Housing and Community Renewal’s rejection of Paul Murphy’s excuse. (Matter of State Div. of Human Rights [Granelle], 70 NY2d 100.)

      Himmelstein, McConnell, Gribben, Donoghue & Joseph, New York City (David Hershey-Webb of counsel), for respondent.
    I. The courts below properly construed the Mitchell-Lama succession regulations to require granting succession to a lifelong family member given the unique facts of this case. (Matter of Dworman v New York State Div. of Hous. & Community Renewal, 94 NY2d 359; Jenkins v Fieldbridge Assoc., LLC, 65 AD3d 169; Kuppersmith v Dowling, 93 NY2d 90; Kahn v New York City Dept. of Hous. Preserv. & Dev., 28 Misc 3d 1206[A], 2010 NY Slip Op 51197[U]; Matter of Meyers v New York State Div. of Hous. & Community Renewal, 68 AD3d 1518; Matter of Greichel v New York State Div. of Hous. & Community Renewal, 39 AD3d 421; Matter of Callwood v Cabrera, 49 AD3d 394; Matter of Gilbert v Perine, 52 AD3d 240; Matter of Cognata v New York State Div. of Hous. & Community Renewal, 2008 NY Slip Op 33595[U], 82 AD3d 482; Taylor v New York State Div. of Hous. & Community Renewal, 73 AD3d 634.) II. This Court has repeatedly rejected the mechanistic application of regulations which undermine the purpose of those regulations and compel absurd results. (Matter of Dworman v New York State Div. of Hous. & Community Renewal, 94 NY2d 359; Matter of Grimm v State of N.Y. Div. of Hous. & Community Renewal Off. of Rent Admin., 15 NY3d 358; Matter of Cintron v Calogero, 15 NY3d 347; Eastside Exhibition Corp. v 210 E. 86th St. Corp., 18 NY3d 617; Roberts v Tishman Speyer Props., L.P., 13 NY3d 270; Matter of Schorr v New York City Dept. of Hous. Preserv. & Dev., 10 NY3d 776.) III. The New York State Division of Housing and Community Renewal’s rejection of Paul Murphy’s explanation for failing to file an income affidavit lacked a rational basis.

      Michael A. Cardozo, Corporation Counsel, New York City (Karen M. Griffin and Francis F. Caputo of counsel), for City of New York, amicus curiae.
    The Appellate Division exceeded the bounds of proper judicial review when it ignored a specific, reasonable regulatory requirement for succession eligibility. (Kuppersmith v Dowling, 93 NY2d 90; Matter of Miney v Donovan, 68 AD3d 876, 15 NY3d 712; Matter of Schorr v New York City Dept. of Hous. Preserv. & Dev., 10 NY3d 776.)
   OPINION OF THE COURT

Chief Judge Lippman.

This case arises from a determination of the Division of Housing and Community Renewal (DHCR) denying petitioner Paul Murphy (Murphy) succession rights to a Mitchell-Lama apartment. Because the evidence of Murphy’s primary residency was overwhelming, and because there was no relationship between the tenant-of-record’s failure to file the income affidavit and the succession applicant’s income or occupancy, the agency’s determination was arbitrary and capricious.

Murphy is a lifelong resident of an apartment in Southbridge Towers, a housing complex in Lower Manhattan operated under the Limited-Profit Housing Companies Law (Private Housing Finance Law art II [Mitchell-Lama]). Murphy moved into the apartment with his parents when he was one month old, in 1981, and extensive evidence demonstrates that he has continued to live in the apartment ever since. In January 2000, Murphy’s parents vacated the apartment, and in 2004, Murphy filed a succession application to succeed to the tenancy.

Southbridge Towers rejected the application and DHCR subsequently denied Murphy’s appeal. DHCR based its denial on the fáct that Murphy’s mother, the tenant-of-record, had failed to file an annual income affidavit listing Murphy as a co-occupant for one of the two years prior to her vacatur in 2000. The agency considered this failure an absolute bar to Murphy’s succession eligibility under its regulations. Murphy then filed the instant CPLR article 78 petition in Supreme Court challenging the agency’s determination, and DHCR moved to dismiss the proceeding. Supreme Court denied DHCR’s motion, annulled the agency’s denial of Murphy’s appeal, and granted his succession petition (29 Misc 3d 1213[A], 2010 NY Slip Op 51816[U] [2010]). The Appellate Division affirmed (91 AD3d 481 [1st Dept 2012]), and we granted DHCR’s motion for leave to appeal (19 NY3d 812 [2012]).

“ Tn reviewing an administrative agency determination, [courts] must ascertain whether there is a rational basis for the action in question or whether it is arbitrary and capricious’ ” (Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009], quoting Matter of Gilman v New York State Div. of Hous. & Community Renewal, 99 NY2d 144, 149 [2002]). “An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts” (Peckham, 12 NY3d at 431, citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]).

Regulations providing for succession rights to Mitchell-Lama apartments serve the important remedial purpose of preventing dislocation of long-term residents due to the vacatur of the head of household (see Notices of Emergency/Proposed Rule Making, NY Reg, Nov. 29, 1989 at 23-29). Succession is in the spirit of the statutory scheme, whose goal is to facilitate the availability of affordable housing for low-income residents and to temper the harsh consequences of the death or departure of a tenant for their “traditional” and “non-traditional” family members (see Braschi v Stahl Assoc. Co., 74 NY2d 201 [1989]; see also Rent Stabilization Assn. of N.Y. City v Higgins, 83 NY2d 156 [1993]).

In the event that Mitchell-Lama tenants vacate an apartment, their co-occupants are not automatically entitled to succeed to the tenancy. Under the applicable regulations, succession applicants must make an affirmative showing in order to establish their eligibility. Specifically, they must demonstrate that they qualify as family members or were otherwise sufficiently interdependent with the tenant-of-record; that the unit at issue was the applicant’s primary residence during the two years immediately prior to the tenant’s vacatur; and that they were listed as co-occupants on the income affidavits filed for the same two-year period (see former 9 NYCRR 1727-8.3 [a]).

We have recognized that “[t]he Mitchell-Lama law prescribes strict guidelines for tenant eligibility and succession” (Matter of Schorr v New York City Dept. of Hous. Preserv. & Dev., 10 NY3d 776, 778 [2008]). However, as DHCR noted in connection with the 1991 amendments to its regulations, “these [succession] regulations are not intended to cover all possibilities that may occur but are intended to meet the probable occurrences that may transpire as a result of a tenant’s permanent absence from a housing unit and the rights and obligations of those who may claim to be entitled to succeed such tenant” (NY Reg, June 5, 1991 at 21).

In this case, DHCR contests neither Murphy’s status as a family member, nor that he lived in the apartment during the relevant two-year period of 1998-1999. The sole basis for DH-CR’s denial of Murphy’s application was that his mother did not file the requisite income affidavit for 1998, the year prior to Murphy’s high school graduation. Given the overwhelming evidence of primary residence, and the absence of any indication that the failure to file was related to Murphy’s status as a co-occupant or an income-earner, we hold that it was arbitrary and capricious for DHCR to deny succession on the basis of the failure to file a single income affidavit.

There is no doubt that DHCR has a compelling interest in encouraging the timely filing of income affidavits in order to fairly and efficiently administer the Mitchell-Lama program. Housing companies and supervising agencies like DHCR rely on these affidavits to monitor both the number and aggregate income of occupants, information that is crucial to determining the appropriate amount of rent and to ensuring that tenants remain eligible for the rental subsidy. Accordingly, failure to file income affidavits can result in harsh penalties: the tenant can be charged a surcharge on rent for the applicable year (as occurred here), or can be evicted (see former 9 NYCRR 1727-2.6 [a] and 1727-5.3 [a] [7]).

In the succession context, however, the principal purpose of the income affidavit is to provide proof of the applicant’s primary residence. As stated in the DHCR regulations,

“Proof of [primary residence] shall be the listing of such person on the annual income affidavit and/or the filing of the Notice of Change to Tenant’s family . . . , together with other evidence, such as certified copies of tax returns, voting records, motor vehicle registration and driver’s license, school registration, bank accounts, employment records, insurance policies, and/or other pertinent documentation or facts” (former 9 NYCRR 1727-8.2 [a] [5]).

While agency interpretations of their own regulations are generally afforded considerable deference (see e.g. Matter of Gaines v New York State Div. of Hous. & Community Renewal, 90 NY2d 545, 548-549 [1997]), “[c]ourts must scrutinize administrative rules for genuine reasonableness and rationality in the specific context presented by a case” (Kuppersmith v Dowling, 93 NY2d 90, 96 [1999]; see also Matter of Dworman v New York State Div. of Hous. & Community Renewal, 94 NY2d 359 [1999]). As both Supreme Court and the Appellate Division noted, Murphy provided ample evidence in support of his succession application evincing that he resided in the apartment during 1998 and 1999. Indeed, DHCR does not dispute Murphy’s residency for the past 32 years. DHCR instead cites only his mother’s technical noncompliance for a single year to justify evicting him from the only home he has ever known.

Notwithstanding the importance of the income affidavit requirement, given the overwhelming evidence of residency provided in this case, and the lack of relationship between the tenant-of-record’s failure to file and Murphy’s income or co-occupancy, DHCR’s decision to deny Murphy succession rights was arbitrary and capricious.

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

Read, J. (dissenting).

Petitioner Paul Murphy’s application concededly did not comply with a bright-line regulatory prerequisite for succession to state-subsidized housing in the Mitchell-Lama affordable housing program. Yet the majority holds that the Division of Housing and Community Renewal (DHCR)’s decision to enforce its regulations and deny Murphy’s application was arbitrary and capricious. In so doing, the majority improperly substitutes its judgment for DHCR’s, thereby denying affordable housing to a qualified family on the waiting list. I respectfully dissent.

I

The Mitchell-Lama Law was enacted to address the “seriously inadequate supply of safe and sanitary” housing for low- and moderate-income families living in the State’s urban centers (see Private Housing Finance Law § 11; see also L 1961, ch 803). Declaring that this housing “emergency . . . necessitated] speedy relief which [could not] readily be provided by the ordinary unaided operation of private enterprise,” the legislature enacted incentives to encourage private housing companies to develop affordable housing (see Private Housing Finance Law § 11). Companies such as Southbridge Towers, Inc. (South-bridge), the limited-profit housing company involved in this case, were furnished low-interest mortgage funding for construction and real estate tax exemptions in exchange for providing housing regulated as to rents, profits and tenant selection (see id. §§ 11, 11-a, 22—23-c; see also Matter of City of New York [Rudnick], 25 NY2d 146, 147-148 [1969] [summarizing provisions of Mitchell-Lama Law]).

DHCR, the agency that oversees state-subsidized Mitchell-Lama developments, enjoys broad authority to implement the law (Private Housing Finance Law § 32 [3]). Pursuant to that authority, DHCR has adopted regulations that require tenants in Mitchell-Lama housing to file annual income statements with the housing company (see 9 NYCRR 1727-2.1, 1727-2.4, 1727-2.5 [a]). These sworn statements provide notice of the name, age and income of the apartment’s occupants. Every occupant must be listed, regardless of earning status, and every occupant over the age of 18 must sign the affidavit. DHCR may authorize a housing company to commence eviction proceedings against a tenant who fails to file an annual income affidavit (see id. 1727-5.3 [a] [7]); such proceedings enjoy priority over those brought against “over-income tenants” (id. 1727-5.3 [f]).

The usual way to become a lawful tenant of Mitchell-Lama housing in the first place is to apply to the housing company for admission to a particular development (see generally Private Housing Finance Law § 41; 9 NYCRR subpart 1727-1). Because demand far outstrips supply, housing companies are required to maintain waiting lists so as to insure equitable access to apartments as they become available (see id. 1727-1.1 [a]; 1727-1.3). The housing company must verify that each applicant meets the income eligibility requirements for Mitchell-Lama housing (see id. subpart 1727-2).

DHCR has created a narrow exception to this general admission process to permit, under limited circumstances, a family member of a departing tenant of record to succeed to the tenancy and thus displace the next qualified individual or family on the waiting list (see id. 1727-8.2 [a] [2], [5]; 1727-8.3 [a]). In order to be eligible for succession, an applicant who is not a senior citizen or disabled must fulfill three specific and independent requirements:

(1) The applicant must be a member of the vacating tenant of record’s family;
(2) The applicant must have resided in the apartment as his primary residence (as that term is defined in the regulations) with the tenant of record for at least the two years immediately prior to the tenant’s death or vacatur; and
(3) The applicant must have been listed on the income affidavit (or notice of change) filed by the tenant of record for at least the two consecutive annual reporting periods immediately prior to the tenant’s death or vacatur (see id. 1727-8.3 [a]).

An applicant who does not fulfill each of these three separate requirements is ineligible for succession, and the apartment becomes available to a qualified individual or family on the waiting list.

The third of these three requirements—hereafter, the “income-affidavit requirement”—has been a prerequisite for succession to Mitchell-Lama housing since 1991. In 2009 DHCR undertook a rulemaking to streamline and update its regulations governing the management and supervision of Mitchell-Lama companies. In its response to comments on the proposed rules, which reorganized and renumbered provisions bearing on succession, the agency noted that public comment had “suggested that the new regulation should . . . permit the succession applicant to demonstrate residency in the housing accommodation through other evidence and not only via the annual certification or notice of change in family” (31 NY Reg [No. 45] at 10 [Nov. 10, 2009] [emphasis added]). DHCR rejected this approach—now adopted by the majority (see e.g. majority op at 653 n 1; see also id. at 654 n 3)—explaining that

“[t]he regulations have always required a succession applicant to provide documentary evidence of primary residence and to have been listed on the annual income affidavit for the required period of time (or the notice of change in occupancy, when applicable). The regulations are drafted to protect those who would legitimately succeed as well as to prevent unqualified persons from circumventing the waiting list” (31 NY Reg [No. 45] at 11 [emphasis added]).

In DHCR’s view, this requirement provides an additional incentive for tenants of record to submit accurate income affidavits. And housing companies and supervising agencies, like DHCR and HPD, rely heavily on the information in these sworn statements for many purposes; for example, to determine rent and the surcharge in the event the aggregate annual income of all occupants of the apartment exceeds the maximum income limit (see 9 NYCRR 1727-4.2); to determine whether occupancy standards are being violated and the tenant should be transferred to a smaller apartment or, conversely, whether the tenant is eligible to be placed on an internal waiting list for a larger apartment (see id. 1727-2.8); and to determine whether the tenant remains eligible for Mitchell-Lama housing (see id. 1727-5.3 [a] [7]).

Conditioning succession—an agency-created exception to the general admission process—on the filing of accurate income affidavits reflects and reinforces the importance of these documents to the administration of the Mitchell-Lama program. For one thing, it assures that the outgoing tenant of record was income-eligible for residency; otherwise, the successor tenant succeeds to an unlawful tenancy at the expense of a qualified applicant for subsidized housing.

Second, a bright-line rule, such as the income-affidavit requirement, enables a housing company and supervising agencies to administer succession tenancy more efficiently. In this regard, amicus curiae City of New York presents us with a cautionary tale.

Prior to February 1, 2003, HPD’s rules provided that the omission of a family member from the income affidavits for the relevant time period created a rebuttable presumption that the apartment was not the applicant’s primary residence during that period. This presumption could be refuted by an evidentiary showing to the contrary. To address both the administrative burden created by the rebuttable presumption and the recurring fraud concerning succession to these scarce low-rent Mitchell-Lama apartments, HPD amended its regulations expressly to remove the rebuttable presumption. HPD thus adopted a three-part succession rule comparable to DHCR’s (see 28 RCNY 3-02 [p]).

Finally, a bright-line rule promotes fairness. Everyone knows that compliance with the income-affidavit requirement is necessary to demonstrate residency (or at least that was the case until today) and may plan accordingly, assured that every applicant must fulfill the same condition. Fair assignment of subsidized housing is supposed to be a central component of the Mitchell-Lama program. Succession, an exception to the general rule of admission, must be strictly enforced to insure the program’s integrity, and reserve the benefit of subsidized housing for those who legitimately qualify for it.

II

For a regulation to be nullified, “[t]he challenger . . . must establish that the regulation is so lacking in reason for its promulgation that it is essentially arbitrary” (Matter of Versailles Realty Co. v New York State Div. of Hous. & Community Renewal, 76 NY2d 325, 328 [1990], quoting Ostrer v Schenck, 41 NY2d 782, 786 [1977] [internal quotation marks omitted]). DHCR’s income-affidavit requirement has a rational basis and is not unreasonable, arbitrary, capricious or contrary to the Private Housing Finance Law, as earlier shown. And, in any event, Murphy does not challenge the regulation’s validity. Moreover, he acknowledges that his application did not comply with the rule. Yet the majority concludes that DHCR’s enforcement of the income-affidavit requirement against an admittedly noncompliant applicant is arbitrary and capricious.

Why does the majority reach this surprising result? After all, courts are hardly in the habit of faulting administrative agencies for enforcing duly adopted regulations according to their terms. The answer the majority gives—and this is stated three times in the opinion—is that “the evidence of Murphy’s primary residency was overwhelming, and . . . there was no relationship between the tenant-of-record’s failure to file the income affidavit and [Murphy’s] income or occupancy” (see majority op at 652; see also id. at 653-654, 655); and, relatedly, that “the principal purpose of the income affidavit is to provide proof of the applicant’s primary residence” (id. at 654). The majority also complains that, in light of the “ample evidence” that Murphy “resided in the apartment during 1998 and 1999,” it was arbitrary and capricious for DHCR to deny his succession application based “only [on] his mother’s technical noncompliance for a single year to justify evicting him from the only home he has ever known” (majority op at 655).

First, documents such as certified copies of tax returns, voting records, motor vehicle registration, etc. constitute necessary but not sufficient proof of primary residency (see 9 NYCRR 1727-8.2 [a] [5]; 1727-8.3 [a]). When reconsidering the succession regulations in 1990, DHCR explicitly considered and rejected the proposition—now adopted by the majority—that an applicant for succession should be allowed to demonstrate residency “through other evidence and not only via the annual certification” (see 31 NY Reg [No. 45] at 10, discussed at 658, supra). The majority is thus impermissibly substituting its policy judgment about what the regulations should say for DH-CR’s, and doing so in a case where Murphy himself never challenged the validity or reasonableness of the income-affidavit requirement. Rather, he argued that he had a good excuse for not complying with it.

Next, “succession applicants must make an affirmative showing in order to establish their eligibility” (majority op at 653). And here, Murphy’s “affirmative showing” consisted of shifting explanations for his mother’s neglect to file the income affidavits for 1998 and 1999, which DHCR found to be “unavailing.” Specifically, Murphy initially based his application for succession on his father’s—not his mother’s—purported occupancy of the apartment; he asserted that his father permanently vacated the premises in “July 2001,” even though his father had not been listed on an income affidavit for years. Murphy also claimed that Southbridge had misplaced the income affidavits for 1998 and 1999.

Some months later Murphy shifted gears, professing that both parents had vacated the apartment in January 2000. Since income affidavits are filed in April for the previous calendar year, this revision of the timeline conveniently meant that the filed income affidavit for calendar year 1997 fell within the two-year period relevant to establishing succession. Murphy also claimed for the first time that the income affidavits for 1998 and 1999 had not been filed because of concerns about unspecified “mismanagement issues” at Southbridge.

Murphy’s mother eventually submitted an unsworn statement to DHCR in which she claimed that she did not file these income affidavits because of “corruption” at Southbridge. But she provided no contemporaneous evidence that fears of “corruption” had caused her to refrain from filing, and her explanation contained serious factual inaccuracies and inconsistencies. And, of course, DHCR was aware that in 1997, the Murphy household’s reported income was nearly double the maximum allowable limit. As a result, Southbridge had applied a 50% surcharge to the rent—the maximum monetary penalty allowable.

DHCR considered and expressly rejected as a factual matter Murphy’s excuse for his mother’s failure to file income affidavits for 1998 and 1999. And the record more than adequately supports DHCR’s scepticism. Again, the majority impermissibly substitutes its judgment for DHCR’s by opining that “there was no relationship between the tenant-of-record’s failure to file the income affidavit and [Murphy’s] income or occupancy.” First, the nature of the “relationship” between neglect to file and the applicant’s income and occupancy is not made a test of eligibility anywhere in DHCR’s succession regulations. Failure to file is enough, absent a showing of undue hardship (see n 9, supra). And the only way to conclude that, as a matter of fact, no such relationship existed is by accepting the tortured explanations put forward by Murphy and his mother. In any event, DHCR’s factual determinations must be upheld so long as any rational basis supports the decision, even if “the evidence is conflicting and room for choice exists” (Matter of State Div. of Human Rights [Granelle], 70 NY2d 100, 106 [1987]).

Finally, the majority minimizes the absence of an income affidavit for 1998, calling it mere “technical noncompliance for a single year,” and intimates that it is unfair for Murphy to suffer the loss of subsidized housing on account of his mother’s decision to skip filing. But the majority itself says that DHCR has “a compelling interest in encouraging” tenants to file income affidavits (see majority op at 654 [emphasis added]). Moreover, because the tenant of record/head of household files the income affidavit, a decision not to file is inevitably made by someone other than the applicant for succession.

III

DHCR has an obligation to protect the integrity of the Mitchell-Lama program by insuring that sought-after taxpayer-subsidized apartments are not occupied by unqualified applicants at the inevitable expense of those legitimately entitled to this housing. Its regulations manifest various policy choices made in pursuit of that goal, and more often than not, those choices call for tradeoffs. In the case of the succession regulations, DHCR balanced the competing interests of a tenant of record’s family members and low- and moderate-income individuals and families enduring long waits for Mitchell-Lama housing. In the past, we have respected the regulatory policy choices made by housing agencies in the administration of the Mitchell-Lama program; we have recognized that “[t]he Mitchell-Lama Law prescribes strict guidelines for tenant eligibility and succession,” which the agency (in that case, HPD) is “statutorily required to enforce” (Matter of Schorr v New York City Dept. of Hous. Preserv. & Dev., 10 NY3d 776, 778 [2008]). This case signals a retreat from such judicial deference, apparently motivated by sympathy for Murphy, who benefits to the detriment of the low- or moderate-income family on the waiting list which otherwise would occupy the subsidized housing to which he now succeeds.

Judges Graffeo, Smith and Rivera concur with Chief Judge Lippman; Judge Read dissents and votes to reverse in an opinion in which Judges Pigott and Abdus-Saiaam concur.

Order affirmed, with costs.

      . The dissent’s assertion that Murphy’s affirmative showing was limited to “shifting explanations for his mother’s neglect to file” (dissenting op at 661) income affidavits fails to take into account the extensive record evidence he submitted demonstrating his primary residence in the apartment during the years in question.

      . The relevant regulations were revised and renumbered in 2009. The provisions used herein refer to the regulations in effect in 2004, when the succession application was submitted.

      . Contrary to the dissent’s contention, in reaching our conclusion, it is unnecessary to accept any of Murphy’s mother’s explanations for nonfiling.

      . In doing so, we do not treat one who fails to file more leniently than one who files. The same principle would apply had the income affidavit been filed, but the 17-year-old’s name was omitted for a reason unrelated to his co-occupancy or income, such as inadvertence.

      . The subsidized housing in question is a iwo-bedroom apartment, and Murphy was an unmarried 23 year old when he applied for succession. Currently, the minimum-maximum household size for new admissions and transfers to two-bedroom apartments in a Mitchell-Lama project is two to four persons (see 9 NYCRR 1727-2.8).

      . Amicus curiae City of New York, through its Department of Housing Preservation and Development (HPD), supervises city-subsidized Mitchell-Lama developments (see Private Housing Finance Law § 2 [15]; NY City Charter § 1802 [6] [d]).

      . Hereafter, citations to DHCR’s regulations are to those in effect in 2004, the year that Murphy submitted his application for succession. These regulations were amended in 2009, but 9 NYCRR subpart 1727-8, which addresses succession, was merely reorganized and renumbered without substantive change.

      . As defined in the regulations, “family member” includes certain listed relatives by blood or marriage (e.g., husband, wife, son, daughter, stepson, stepdaughter, etc.), or someone “residing with the tenant in the housing accommodation as a primary or principal residence, who can prove emotional and financial commitment and interdependence between such person and the tenant” (see 9 NYCRR 1727-8.2 [a] [2] [i], [ii]).

      . “Primary residence” means
      “[t]he housing accommodation in which the person actually resides and maintains a permanent and continuous physical presence. Proof of such residency shall he the listing of such person on the annual income affidavit and/or the filing of the Notice of Change to Tenant’s Family . . . together with other evidence, such as certified copies of tax returns, voting records, motor vehicle registration and driver’s license, school registration, bank accounts, employment records, insurance policies, and/or other pertinent documentation or facts” (see 9 NYCRR 1727-8.2 [a] [5] [emphases added]).

      . These are notices that the tenant of record must file with the housing company to reflect any changes in the individuals residing in the apartment (see 9 NYCRR 1727-3.6). This provision is not implicated here.

      . The actual text of the regulation states that
      “if the tenant has permanently vacated the housing accommodation, any member of such tenant’s family . . . who has resided with the tenant in the housing accommodation as a primary residence for a period of not less than two years, has been listed on the income affidavit and/or on the [notice of change] . . . immediately prior to the permanent vacating of the housing accommodation by the tenant, or from the inception of the tenancy or commencement of the relationship, if for less than such period[ ], may request to be named as a tenant on the leases” (9 NYCRR 1727-8.3 [a]).

        (n. cont’d)

      . As noted earlier, “the only home [Murphy had] ever known” is a two-bedroom apartment, and the income affidavits that he began filing in 2000 listed an uncle as an occupant of the apartment. Murphy’s application for succession was made jointly with this uncle, who was married to Murphy’s mother’s sister, a shareholder of another subsidized apartment in the same building. On the appeal of Southbridge’s denial of the joint application, DHCR denied the uncle’s claim on the basis that the regulations require a showing of a family relationship with the tenant of record, not another claimant; and, in any event, do not include “brother-in-law” in the list of family members qualified for succession (see 9 NYCRR 1727-8.2 [a] [2] [i]). The uncle did not appeal.

      . Notably, Murphy never took the position that his excuse somehow demonstrated or amounted to undue hardship. At the time he made his application, 9 NYCRR 1725-2.9, “Waiver of rules and regulations,” provided that the “[r]ules and regulations may be waived in exceptional circumstances if, in the opinion of the commissioner [of DHCR], their application to a specific case, or under an emergency condition, may be shown to effect undue hardship.” This provision was repealed when the succession regulations were reorganized and renumbered in 2009. The nearest analog to former section 1725-2.9 is 9 NYCRR 1700.5, “Waiver of requirements of this Chapter [IY State-Assisted Housing Constructed by Private Enterprise] and use of alternative procedures.” This provision states that
      “[t]he requirements of this Chapter may be waived if, in the opinion of the commissioner [of DHCR], their application may be shown to effect undue hardship or the waiver of such requirements or the use of alternative procedures are appropriate to the interests of the housing company, the public, the Hen holders, the cooperators, or the tenants.”

      . Interestingly, one of the corrupt officials about whom Murphy’s mother complained pleaded guilty in 2008 to mail fraud charges stemming from her attempt to circumvent DHCR’s succession regulations by filing false income affidavits.

      . Although the majority insists that “in reaching [its] conclusion, it is unnecessary to accept any of Murphy’s mother’s explanations for nonfiling” (see majority op at 654 n 3), no reason other than these explanations is apparent from the record to support the otherwise ipse dixit statement that “there was no relationship between the tenant-of-record’s failure to file the income affidavit and [Murphy’s] income or occupancy.”

      . It is difficult to imagine that a tenant of record in Mitchell-Lama housing could ever simply forget to file the annual income affidavit. This is especially so in a case like this one, where the tenant is a longtime resident (beginning in 1981) with a consistent history of filing these documents until 1998.


source: Caselaw Access Project

author: Graffeo, J. Rivera, J. (concurring).

license: Public Domain

text:
    [998 NE2d 384, 975 NYS2d 721]
    The People of the State of New York, Respondent, v Scott F. Doll, Appellant.
    Argued September 3, 2013;
    decided October 17, 2013

      POINTS OF COUNSEL

      Lipsitz Green Scime Cambria, LLP, Buffalo (Timothy P. Murphy and Paul J. Cambria, Jr., of counsel), for appellant.
    I. Appellant was deprived of his state and federal constitutional rights to a fair trial, due process, counsel and to be free from compelled self-incrimination, as he invoked his right to counsel and was subjected to custodial interrogation without being afforded Miranda warnings. The public safety/emergency exception did not apply, and the statements were involuntarily made. (People v Krom, 61 NY2d 187; Michigan v Fisher, 558 US 45; People v Rogers, 48 NY2d 167; People v West, 81 NY2d 370; People v Settles, 46 NY2d 154; People v Cunningham, 49 NY2d 203; People v Yukl, 25 NY2d 585; People v Samuels, 49 NY2d 218; People v Hobson, 39 NY2d 479; People v Parks, 120 AD2d 920.) II. Appellant’s state and federal constitutional rights to due process, a fair trial and to be free from unreasonable searches and seizures were violated by appellant’s warrantless arrest and subsequent transport to the station, as there was no probable cause. (Mapp v Ohio, 367 US 643; Wong Sun v United States, 371 US 471; People v De Bour, 40 NY2d 210; Dunaway v New York, 442 US 200; People v Bigelow, 66 NY2d 417; People v Hicks, 68 NY2d 234; People v Shulman, 6 NY3d 1; People v Cantor, 36 NY2d 106; People v Yukl, 25 NY2d 585; People v Ferry, 152 AD2d 952.) III. Appellant’s state and federal constitutional rights to due process, a fair trial and to be free from unreasonable searches and seizures were violated by law enforcement’s pre-warrant search of the vehicle in appellant’s possession and other physical evidence. Further, the subsequent warrants were not based upon probable cause. (People v Rodriguez, 69 NY2d 159; People v Wesley, 73 NY2d 351; People v Ramirez-Portoreal, 88 NY2d 99; Payton v New York, 445 US 573; People v Bigelow, 66 NY2d 417; Johnson v United States, 333 US 10; People v Adams, 53 NY2d 1; People v Molnar, 98 NY2d 328; People v Wheeler, 2 NY3d 370; People v William II, 98 NY2d 93.)

      Lawrence Friedman, District Attorney, Batavia (William G. Zickl and Melissa Lightcap Cianfrini of counsel), for respondent.
    I. The statements made by defendant were properly admitted at trial. (People v Dallas, 8 NY3d 890; People v Molnar, 98 NY2d 328; People v Tankleff, 84 NY2d 992; People v Bongarzone-Suarrcy, 6 NY3d 787; People v Harrison, 82 NY2d 693; People v Cardona, 41 NY2d 333; People v Hodge, 44 NY2d 553; People v Brewer, 28 AD3d 265, 7 NY3d 753; People v Desmarat, 38 AD3d 913, 10 NY3d 933; People v Rodriguez, 77 AD3d 280, 15 NY3d 955.) II. The approach and detention of defendant were proper. (People v Williams, 17 NY3d 834; People v Greenidge, 91 NY2d 967; Dunaway v New York, 442 US 200; People v Hicks, 68 NY2d 234; People v Robinson, 282 AD2d 75; People v Ryan, 12 NY3d 28; People v Hodge, 44 NY2d 553; People v McLaurin, 70 NY2d 779; People v Gomez, 5 NY3d 416; People v Oquendo, 252 AD2d 312, 93 NY2d 901.)
   OPINION OF THE COURT

Graffeo, J.

The primary issue in this appeal is whether the courts below correctly concluded that the actions of the police were a reasonable response to a serious and ongoing exigent situation under the emergency doctrine.

I

At about 9:00 p.m. one evening in February 2009, the Genesee County Sheriffs Department received a 911 report of a suspicious person walking on a particular roadway. A deputy responded and observed a man who matched the description wearing a one-piece camouflage hunting outfit and a white hood. As the individual approached the officer’s vehicle, he dropped a metal object and pulled a lug wrench from his pocket. The deputy observed what appeared to be wet blood stains on the man’s knees, thighs, hands and shoes.

The officer asked the man for identification and he produced a correction officer identity card bearing his name—Scott Doll. Defendant Doll indicated that he was walking to lower his blood pressure because he had a doctor’s appointment the next morning. He further explained that his van was parked near an automotive facility and he asked for a ride to that location. The deputy agreed to take defendant to his vehicle.

After defendant got into the rear seat of the police car, the firefighter who had placed the 911 call came to the scene and informed the deputy that when he had noticed defendant at the automotive garage, defendant had turned away from him and crouched between two cars in an attempt to avoid detection. Based on this information, the deputy told defendant that he was being detained until the situation was assessed. Defendant was then frisked and handcuffed. In response to a question about the blood on his clothes, defendant explained that he was wearing his deer butchering outfit because of the cold temperature that evening. He did not explain why the blood was wet.

The deputy drove defendant to his van and discovered blood in several places inside and outside defendant’s vehicle, along with bloody gloves nearby. Other police officers who arrived at the scene noticed blood on defendant’s face and saw him leave bloody footprints in the snow. Around this time, defendant asked to speak to his divorce lawyer. When the police questioned defendant about whether the blood was from a deer or a human, defendant declined to explain the source of the blood or take the deputies to the alleged butchered deer.

These unusual circumstances caused the deputies to believe that a person may have been injured in an accident or assault so they continued to question defendant despite his request for legal assistance. Defendant repeated that he could not answer the officers’ inquiries. The police then tried to contact defendant’s relatives and acquaintances (as well as other individuals) to determine whether anyone needed emergency assistance. Officers also searched for an injured person in the vicinity where defendant had been walking. Eventually, police officers went to the residence of defendant’s business partner and discovered the man lying dead in his driveway.

In the meantime, the police impounded defendant’s van and took him to the sheriff’s office. Defendant was photographed, tested for DNA and his clothes were seized. A few hours later, a female friend (a former coworker of defendant) arrived at the police station and asked to speak with defendant. An investigator, who was aware of the death of defendant’s business partner, initially rebuffed the woman. He eventually allowed her to meet with defendant after explaining that he intended to remain in the room while they spoke and he would be taking notes but would not participate in the discussion. During the meeting, with the investigator only a few feet away, defendant told the woman that the case did not involve an animal; he had been present but did not do anything; the case was “open and shut” and he would be going to jail; and he would probably get what he deserved. When the woman specifically asked defendant to state that no one was dead, defendant responded “I can’t tell you that.”

The blood found on defendant’s clothes, his van and the gloves was later matched to the victim. Further investigation revealed that defendant had financial difficulties that affected his business relationship with the deceased and the men had arranged to meet on the day the victim died.

Defendant was indicted for second-degree murder. He moved to suppress the statements he made to the police and his female acquaintance, as well as all of the physical evidence, primarily claiming that he had been arrested without probable cause and interrogated in violation of his right to counsel and without receiving Miranda warnings. County Court conducted an evidentiary hearing and ruled that the detention and questioning of defendant were justified under the emergency doctrine. The court did, however, suppress the results of defendant’s DNA test because the police could have obtained a warrant. A jury subsequently convicted defendant of second-degree murder and he was sentenced to a prison term of 15 years to life.

The Appellate Division affirmed (98 AD3d 356 [4th Dept 2012]), determining that the police actions were warranted because the authorities reasonably responded to an emergency situation. Two Justices dissented, believing that the emergency doctrine was unavailable since the police did not know whether an actual crime victim existed. A dissenter granted defendant leave to appeal (19 NY3d 1003 [2012]). We now affirm.

II

Defendant maintains that his right to counsel and Miranda protections were violated because the emergency doctrine should not apply where the police did not know for certain if a crime had occurred or whether an injured person needed emergency aid. Consequently, defendant contends that his motion to suppress should have been granted and a new trial ordered. The People assert that the police properly relied on the emergency doctrine in light of the peculiar circumstances they confronted—a man walking along a public road covered in fresh blood for which no reasonable explanation was readily forthcoming. They argue that it is unnecessary for the police to have specific information that a person requires assistance so long as they reasonably believe that there is an exigent situation demanding their attention.

As a general rule, a person who is in custody cannot be questioned without first receiving Miranda warnings (see e.g. People v Ramos, 99 NY2d 27, 35 [2002]) or after the right to counsel attaches (see e.g. People v Gibson, 17 NY3d 757, 759 [2011]). There are exceptions to these principles, one of which is referred to as the “emergency doctrine” (see e.g. Michigan v Fisher, 558 US 45, 47 [2009]; Brigham City v Stuart, 547 US 398, 403 [2006]; New York v Quarles, 467 US 649, 655-656 [1984]; People v Molnar, 98 NY2d 328, 331-333 [2002]; People v Krom, 61 NY2d 187, 198-200 [1984]; People v Mitchell, 39 NY2d 173, 177-178 [1976]). It recognizes that the Constitution “is not a barrier to a police officer seeking to help someone in immediate danger” (People v Molnar, 98 NY2d at 331), thereby excusing or justifying otherwise impermissible police conduct that is an objectively reasonable response to an apparently exigent situation (see Brigham City v Stuart, 547 US at 404-405). We have explained that the exception is comprised of three elements: (1) the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property and this belief must be grounded in empirical facts; (2) the search must not be primarily motivated by an intent to arrest and seize evidence; and (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched (see People v Molnar, 98 NY2d at 332; People v Mitchell, 39 NY2d at 177-178). The applicability of the emergency doctrine is a mixed question of law and fact that is beyond our review if the record supports the findings of the courts below (see People v McBride, 14 NY3d at 446; People v Dallas, 8 NY3d at 891; People v Molnar, 98 NY2d at 335).

Here, we conclude that there is support in the record for the determination that the emergency doctrine justified the police questioning. Specifically, the police officers responding to a 911 call found defendant walking along a public road covered in fresh, wet blood and their reasonable inquiries regarding the source of the blood were met with inconsistent responses by defendant, who refused to state whether the blood was from a human or an animal. Under these circumstances, it was reasonable for the police to believe that a person may have been seriously injured and in need of imminent emergency assistance. Contrary to defendant’s contention, the fact that police did not know definitively whether a crime had occurred or the identity of the potential victim was not dispositive because the emergency doctrine is premised on reasonableness, not certitude (see People v Molnar, 98 NY2d at 334-335 [the emergency doctrine allowed the police to conduct a warrantless residential entry without knowing if a crime had taken place inside]; see e.g. Brigham City v Stuart, 547 US at 404; Michigan v Fisher, 558 US at 49). Hence, the courts below properly denied defendant’s motion to suppress the statements he made to the police before the victim was discovered and any evidence that was derived from that information (see generally People v Krom, 61 NY2d at 200-201).

III

Defendant also asserts that he was entitled to suppression of the custodial statements he made to his female acquaintance in the presence of a police investigator. According to defendant, the police used the woman in order to conduct the functional equivalent of a custodial interrogation. We disagree.

The purpose of the Miranda rule is to “prevent[ ] government officials from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment” (Arizona v Mauro, 481 US 520, 529-530 [1987]). New York’s indelible right to counsel is likewise designed to prevent the police from attempting to elicit an uncounseled waiver of the right to remain silent (see generally People v Lopez, 16 NY3d 375, 381-382 [2011]). On this record, it cannot be said as a matter of law that defendant’s conversation with his friend constituted “interrogation” (see generally People v Naradzay, 11 NY3d 460, 468 [2008]).

Here—as in Arizona v Mauro (481 US 520 [1987])—it is undisputed that the investigator did not converse with or question defendant during this encounter (see id. at 527). Nor has defendant established that a discussion of this nature rose to the level of a “psychological ploy that properly could be treated as the functional equivalent of interrogation” (id.) or a subterfuge to circumvent attachment of the indelible right to counsel. The investigator initially refused to allow the woman to meet with defendant but he relented only after she persistently demanded to speak with defendant—and after she was specifically informed that the officer would be in the room taking notes of the conversation (see id. at 528). Defendant was also clearly aware that the police officer was listening to the verbal exchange since the investigator was only a few feet away when the friends conversed. Despite these circumstances, defendant nevertheless stated that an animal was not involved; the case was open and shut; he was going to jail and would get what he deserved; and that he could not say that a person was not dead. On these facts, the courts below did not err in finding that defendant’s assertions were voluntary and admissible at trial.

Our concurring colleague believes that Mauro is distinguishable (see concurring op at 675 n), but the facts of Mauro belie this assertion. The police officer in Mauro acknowledged that he “ ‘sent an officer in there to listen to that conversation’ ” knowing “ ‘that it was possible that [Mauro] might make incriminating statements’ ” and that he “ ‘wanted to record that conversation so as to have a record of those incriminating statements’ ” (481 US at 524 n 2). More poignantly for purposes of this appeal, Mauro specifically explained that “[officers do not interrogate a suspect simply by hoping that he will incriminate himself” (481 US at 529). Contrary to the concurrence’s claim, the fact that the investigator listened to defendant’s conversation in order to record any inculpatory statements is not determinative and there is no basis for suppressing the voluntary statements that defendant made to his acquaintance.

As a final matter, there is no merit to defendant’s challenge to the legality of his detention by the police (see generally People v Williams, 17 NY3d 834, 835-836 [2011]).

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

Rivera, J. (concurring).

I agree with the majority that the emergency doctrine exception applies where police have a basis to reasonably believe “that a person may have been seriously injured and in need of imminent emergency assistance.” (Majority op at 671.) However, I disagree with its conclusion that the police conduct following the termination of the emergency did not violate defendant’s rights. In my opinion, after the emergency ended, the police continued to act in disregard of defendant’s prior demands to speak with his lawyer and undermined his right to counsel.

The emergency doctrine is an exception to the established constitutional prohibition on police interrogation in violation of a suspect’s right to counsel. This exception allows police questioning of a suspect, in derogation of the usual Miranda warnings, where the police may have reasonable grounds to believe an emergency exists that demands their immediate attention. (See New York v Quarles, 467 US 649, 656 [1984] [“we do not believe that the doctrinal underpinnings of Miranda require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety”].) The doctrine permits questioning even where the suspect has specifically invoked his right to counsel. (See People v Krom, 61 NY2d 187, 200 [1984] [“the police did not violate the defendant’s right to counsel under the State Constitution by questioning him concerning the victim’s whereabouts”].) However, once the emergency ends, the exception no longer applies. (Krom, 61 NY2d at 200; see also People v Molina, 248 AD2d 489, 490 [2d Dept 1998].) The doctrine is, thus, subject to temporal limits on the suspension of a suspect’s rights to speak with an attorney and on police interrogation outside the presence of counsel. Without a temporal limit, the exception would potentially engulf, or otherwise encumber, a suspect’s rights to refuse to respond to police questioning and seek assistance of counsel. The policy reasons supporting the emergency doctrine, and its attendant suspension of law enforcement’s duty to inform the defendant of his rights in accordance with Miranda and the prohibition on custodial interrogations outside the presence of counsel, also support the immediate reestablishment of the defendant’s rights to their pre-emergency status, once the police are no longer faced with “grounds to believe that there is an emergency at hand and an immediate need for their assistance” (People v Molnar, 98 NY2d 328, 332 [2002]; see also majority op at 670).

Here, as the People concede, once the body was discovered the emergency ended. Thus, no reasonable basis existed for the continuation of the application of the emergency exception to the defendant. At that time, defendant, who had previously asked for counsel, was entitled to the termination of all custodial questioning, and to speak with an attorney. (See Krom, 61 NY2d at 200 [“The police . . . should not have continued to question the defendant in the absence of counsel once the victim’s body was found”].) The fact that defendant did not repeat his request for counsel did not constitute a waiver of his original request; such waiver, in fact, would be invalid outside the presence of counsel. (See People v Cunningham, 49 NY2d 203, 209 [1980].)

Rather than cease their efforts to search for evidence and realign their conduct with well established precedent, the police continued to extract information from defendant outside the presence of counsel. According to the record, the investigator was fully aware, at approximately 1:00 a.m., that a body had been discovered after being notified over his police radio. This same investigator was equally aware of defendant’s invocation of counsel earlier in the night. Yet, more than two hours after the police discovered the body, the investigator sought to secure incriminating statements from the defendant without the defendant having had the benefit of speaking with a lawyer even once during the course of a custodial process which lasted at least six hours. The investigator admitted that he was hoping the defendant would make incriminating statements when he permitted the defendant’s female acquaintance to address the defendant.

The majority relies on Arizona v Mauro (481 US 520 [1987]) to support its conclusion that the use of the female acquaintance was not the functional equivalent of an interrogation. However, Mauro is distinguishable because it did not involve police conduct following suspension of defendant’s rights under the emergency doctrine, nor did it involve the admitted efforts by law enforcement to elicit incriminating statements from the defendant. In Mauro, the police advised the defendant of his Miranda rights, the defendant invoked his right to counsel and all questioning ceased. The police, however, permitted the defendant’s wife to speak with the defendant. The Court concluded that the police conduct, absent any evidence or suggestion of improper motives, did not constitute an interrogation. (481 US at 529.) As the Court noted in Mauro, “[n]or [was] it suggested—or supported by any evidence—that [the officer’s] decision to allow Mauro’s wife to see him was the kind of psychological ploy that properly could be treated as the functional equivalent of interrogation.” (Id. at 527.) Also, there was “no evidence that the officers sent [Mauro’s wife] in to see her husband for the purpose of eliciting incriminating statements.” (Id. at 528.) Those concerns, however, are exactly at issue in the defendant’s case. First, allowing a friend to speak with the defendant after the police had spoken with him, and while in custody, carried a certain amount of psychological impact. Second, the investigator’s sole articulated reason for allowing the friend to speak to the defendant was to record incriminating statements.

On these facts, I cannot agree with the majority that the investigator’s actions were not “a subterfuge to circumvent attachment of the indelible right to counsel.” (Majority op at 672.) The clearly opportunistic use of the situation cannot be reconciled with defendant’s right to speak with an attorney.

For the same reasons, I would find that the police conduct also violated defendant’s rights under our State Constitution. It bears repeating that our Constitution provides more expansive protections than the Federal Constitution. (People v Alvarez, 70 NY2d 375, 378 [1987] [“in determining . . . the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States”].)

Nevertheless, as made immensely clear by the record and the majority’s discussion of the evidence, it cannot be said that the defendant’s statements to his friend were of the type that creates “a reasonable possibility that the [error] might have contributed to the conviction.” (See People v Crimmins, 36 NY2d 230, 241 [1975].) Therefore, I concur.

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

Order affirmed.

       Whether the second factor remains viable is an issue we need not resolve in this appeal (see e.g. People v McBride, 14 NY3d 440, 447 n [2010]; People v Dallas, 8 NY3d 890, 891 [2007]).

       The majority contends that the cases are indistinguishable because officers in both cases acted merely in the “hopes” of overhearing incriminating statements. Yet in Mauro, the officers asserted safety and security reasons for observing Mauro and his wife, but also acknowledged the possibility that Mauro might incriminate himself. Here, the investigator’s only reason for being present in the room with the defendant and his friend was to overhear and record the defendant’s potentially incriminating statements.


author: Graffeo, J.

text:
    [998 NE2d 810, 976 NYS2d 10]
    The People of the State of New York, Respondent, v Patrick A. Asaro, Appellant.
    Argued September 10, 2013;
    decided October 22, 2013

      POINTS OF COUNSEL

      Ostrer & Hoovler, P.C., Chester (Benjamin Ostrer of counsel), for appellant.
    I. Expert testimony was improperly admitted. (Frye v United States, 293 F 1013; People v Wesley, 83 NY2d 417; Maryland v Craig, 497 US 836.) II. A Frye hearing was required. (Cassano v Hagstrom, 5 NY2d 643; Tucker v Elimelech, 184 AD2d 636; Matott v Ward, 48 NY2d 455; Gross v Friedman, 138 AD2d 571, 73 NY2d 721.) III. The proof was insufficient. (People v Contes, 60 NY2d 620; People v Conway, 6 NY3d 869; People v Boutin, 75 NY2d 692; People v Haney, 30 NY2d 328; People v Cabrera, 10 NY3d 370; People v Montanez, 41 NY2d 53; People v Green, 56 NY2d 427; People v Stanfield, 36 NY2d 467; People v Kern, 149 AD2d 187.) IV The verdict was repugnant. (People v Schaffer, 80 AD2d 865.) V The expert’s testimony should have been stricken. (Perma Research & Dev. v Singer Co., 542 F2d 111; People v DaGata, 86 NY2d 40; United States v Russo, 480 F2d 1228; People v Copicotto, 50 NY2d 222; People v Pitts, 93 NY2d 571.) VI. The expert testimony was improperly bolstered. (Dougherty v Milliken, 163 NY 527; People v Wernick, 89 NY2d 111; People v Ciaccio, 47 NY2d 431.) VII. The failure to disclose the unreliability of the needle slap evidence constituted a Brady violation. (People v Santorelli, 95 NY2d 412; People v Crandall, 38 AD3d 996, 9 NY3d 842; People v Oglesby, 12 AD3d 857, 5 NY3d 792; Brady v Maryland, 373 US 83; People v Baxley, 84 NY2d 208; People v Bond, 95 NY2d 840; People v Vilardi, 76 NY2d 67.)

      Francis D. Phillips, II, Goshen (Robert H. Middlemiss and Andrew R. Kass of counsel), for respondent.
    I. The trial court’s negative inference jury instruction was sufficient to cure the loss of Trooper Pirtle’s notes. (People v Colavito, 87 NY2d 423; People v DaGata, 86 NY2d 40; Matter of Miller v Schwartz, 72 NY2d 869; Brady v Maryland, 373 US 83; People v Rosario, 9 NY2d 286, 980, 368 US 866; People v Button, 276 AD2d 229; Green v Artuz, 990 F Supp 267; Morrison v McClellan, 903 F Supp 428; Crawford v Washington, 541 US 36; Melendez-Diaz v Massachusetts, 557 US 305.) II. The jury’s verdict was supported by legally sufficient evidence. (People v Contes, 60 NY2d 620; People v Norman, 85 NY2d 609; People v Taylor, 94 NY2d 910; People v Benzinger, 36 NY2d 29; People v Rhodes, 49 AD3d 668; People v Romero, 7 NY3d 633; People v Licitra, 47 NY2d 554; People v Racine, 132 AD2d 899.) III. References to defendant’s speedometer were fair comment on the evidence and did not affect defendant’s fundamental rights. (People v Nichols, 35 AD3d 508; People v Leka, 209 AD2d 723; Brady v Maryland, 373 US 83; People v Fuentes, 12 NY3d 259; People v Hayes, 17 NY3d 46; People v Johnson, 303 AD2d 208; People v Alvarez, 44 AD3d 562; People v De Tore, 34 NY2d 199; People v Henry, 60 AD3d 1083; People v Giuca, 58 AD3d 750.)
   OPINION OF THE COURT

Graffeo, J.

The primary issue before us is whether defendant’s convictions for manslaughter in the second degree and assault in the second degree, each predicated on the mental state of recklessness, are supported by legally sufficient evidence. We conclude that they are and therefore affirm.

In the early morning hours of November 22, 2008, defendant Patrick Asaro was driving his vehicle with four passengers on a rural two-lane road in Orange County. He suddenly stopped his car, revved the engine and quickly accelerated to speeds far in excess of the posted limit of 55 miles per hour. Ignoring an urgent plea from one of his passengers to slow down, he crossed the double yellow line and struck an oncoming car head-on, instantly killing the driver and injuring the passenger in the other vehicle. All four passengers in defendant’s car sustained injuries. As a result, defendant was indicted for manslaughter in the second degree (Penal Law § 125.15 [1]), criminally negligent homicide (Penal Law § 125.10), four counts of assault in the second degree (Penal Law § 120.05 [4]), four counts of assault in the third degree (Penal Law § 120.00 [2], [3]), reckless endangerment in the second degree (Penal Law § 120.20), reckless driving (Vehicle and Traffic Law § 1212) and driving while ability impaired (Vehicle and Traffic Law § 1192 [1]).

At trial, Andrew Adamczyk testified that several hours before the accident he held a party at his parents’ house located in the Town of Mount Hope along Guymard Turnpike, a two-lane unlit highway with a speed limit of 55 miles per hour. There was a sharp bend in the road near the home. At one point that evening, he watched defendant’s 2008 Mitsubishi Lancer speed by his house, turn around and enter his driveway. When defendant exited his car, he asked Adamczyk whether he liked the modifications he had made to the exhaust and air intake systems—adjustments designed to make the vehicle louder and faster. In response, Adamczyk admonished defendant not to drive by his house at such a dangerously high rate of speed.

At the party, 10 to 15 guests were drinking vodka and beer. Kyle Ligenzowski testified that he and defendant drank two shots of vodka together and played “beer pong” as teammates. Other partygoers likewise saw defendant drinking vodka and participating in beer pong. Two witnesses testified that defendant appeared to be intoxicated. After defendant had been at the party for a few hours, Ligenzowski told him that two people— Jorge Ortiz and Michael Nazario—needed a lift to the party from the nearby train station in Middletown. Defendant agreed to pick them up and he, Ligenzowski and Therasa Lazaro left the party a little after midnight. After picking up the two individuals, defendant stopped at a gas station to purchase more beer and headed back to the party. Ligenzowski, Ortiz and Nazario each drank beer and smoked marijuana while riding in the back seat. Lazaro was seated in the front passenger seat.

Suddenly, defendant brought his car to a halt in the middle of the road even though there was no reason to stop. He revved the engine, shifted into gear and accelerated quickly. Ligenzowski and Nazario knew that defendant was speeding because they could hear the car loudly accelerating and felt themselves being pushed back into the seat. Ortiz leaned forward to look at the speedometer and saw that the needle was pointing at 130 miles per hour. Ligenzowski testified that he screamed at defendant to slow down but defendant did not respond. Nazario heard Ligenzowski exclaim to defendant to “slow down, we’re about to make the turn.” Ligenzowski’s ominous warning was the last thing anybody in the car could recall before the collision.

The physical evidence established that defendant’s vehicle crossed the double yellow line as it approached the curve by Adamczyk’s house and entered the opposite lane of traffic, where it collided head-on into a car driven by Brian Stevens. The impact killed Stevens instantly and seriously injured Lindsey Ernst, who had been in the passenger seat of the car. Meanwhile, Ligenzowski was ejected from defendant’s car, which had careened off the road and rolled over. Ligenzowski, Lazaro, Ortiz and Nazario all sustained serious injuries. The guests at Adamczyk’s party heard the crash, called 911 and came out to help the survivors. When Adamczyk reached defendant, he heard defendant say “I’m sorry, I only had a few.” The crash victims were all taken to a hospital where a blood sample of defendant was drawn at 2:41 a.m.

A forensic toxicologist testified that she conducted tests on defendant’s blood sample for the presence of alcohol and drugs. The test was negative for alcohol but confirmed the presence of delta-9 tetrahydrocannabinol—the active ingredient in marijuana. A confirmatory test of a separate blood sample by another lab, however, did not detect marijuana in the blood. The toxicologist explained that the negative test may have resulted from the breakdown that occurred between the time the sample was taken and the time the confirmatory test was conducted, about a month and a half later. Although the test did not detect alcohol in defendant’s system, the toxicologist explained that the average person can metabolize one drink, or a blood alcohol content (BAG) of .02, in a given hour. As a result, a person could consume alcohol for a period of time, until 11:30 p.m., and register a BAG of .00 by 2:41 a.m.

A state police expert in the field of collision reconstruction examined the crash site, observing yaw marks crossing the double yellow line from the lane in which defendant’s vehicle had been traveling into the lane where Stevens had been driving. He identified skid marks that ran from the point of impact toward the final resting position of defendant’s car. There were no skid marks suggesting that either car had braked prior to the collision. Based on all the evidence at the scene, the expert concluded that defendant had crossed the double yellow line heading into the curve, causing the accident. In addition, he testified that the calculations he performed to estimate the speed of defendant’s car at the point of impact led him to conclude that defendant was driving at a minimum of 94 miles per hour. On cross-examination, he admitted that the handwritten notes he had used to make the speed computations were lost while he was on medical leave and he could not replicate the math. As a result of the lost Rosario material, the trial court gave the jury an adverse inference charge.

At the close of the People’s case, defendant moved to dismiss the second-degree manslaughter and second-degree assault counts on the ground that the evidence failed to establish the requisite mental state of recklessness. The trial court denied the motion and the jury convicted defendant of second-degree manslaughter, four counts of second-degree assault, two counts of third-degree assault, second-degree reckless endangerment and reckless driving. The jury acquitted defendant of driving while ability impaired. Defendant was sentenced to an indeterminate term of 3 to 10 years on the manslaughter count to run concurrently with determinate terms of three years on the second-degree assault counts and one year on the remaining counts.

The Appellate Division affirmed (94 AD3d 773 [2d Dept 2012]), and a Judge of this Court granted defendant leave to appeal (19 NY3d 1101 [2012]).

Defendant argues that the evidence was legally insufficient to sustain the second-degree manslaughter and second-degree assault convictions. In particular, he asserts that he did not act with the requisite mens rea of recklessness. Rather, he maintains that, at most, he was criminally negligent and the counts therefore should be reduced to criminally negligent homicide and third-degree assault. The People counter that the proof was legally sufficient to prove defendant’s guilt beyond a reasonable doubt.

It is well settled that a “verdict is legally sufficient when, viewing the facts in a light most favorable to the People, there is a 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] [internal quotation marks and citations omitted]). A sufficiency inquiry obligates a court “to marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof’ (id.).

A person is guilty of manslaughter in the second degree under Penal Law § 125.15 (1) when he “recklessly causes the death of another person.” Similarly, a person commits assault in the second degree when he “recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument” (Penal Law § 120.05 [4]). The Penal Law defines “recklessly” in relevant part as follows:

“A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists.
The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation” (Penal Law § 15.05 [3]).

The mental states of recklessness and criminal negligence share many similarities. Both require that there be a “substantial and unjustifiable risk” that death or injury will occur; that the defendant engage in some blameworthy conduct contributing to that risk; and that the defendant’s conduct amount to a “gross deviation” from how a reasonable person would act (compare Penal Law § 15.05 [3] [Recklessly] with Penal Law § 15.05 [4] [Criminal Negligence]). The only distinction between the two mental states is that recklessness requires that the defendant be “aware of” and “consciously disregard” the risk while criminal negligence is met when the defendant negligently fails to perceive the risk (see People v Boutin, 75 NY2d 692, 696 [1990] [explaining that “the necessary underlying conduct, exclusive of the mental element, is the same” (internal quotation marks, emphasis, brackets and citation omitted)]; People v Montanez, 41 NY2d 53, 56 [1976] [“The defendant’s awareness of the risk determines the degree of culpability”]).

In the context of automobile accidents involving speeding, we have held that the culpable risk-creating conduct necessary to support a finding of recklessness or criminal negligence generally requires “some additional affirmative act” aside from “driving faster than the posted speed limit” (People v Cabrera, 10 NY3d 370, 377 [2008]). Here, there was ample proof that defendant did more than merely drive faster than the legal limit— indeed, there was eyewitness testimony that he was traveling at more than double the posted speed limit of 55 miles per hour. Moreover, before the collision, defendant stopped his vehicle in the middle of the unlit road and revved the engine. He then hit the gas pedal and accelerated to an extremely high rate of speed before crossing the double line into oncoming traffic. Viewed in the light most favorable to the People, the evidence showed that defendant used a public road as his personal drag strip to showcase the capabilities of his modified sports car. Although the jury acquitted defendant of driving while ability impaired (by alcohol), there was evidence that he had been drinking and smoking marijuana that evening (see People v Loughlin, 76 NY2d 804, 807 [1990]). The evidence therefore demonstrated that defendant engaged in conduct exhibiting “the kind of seriously blameworthy carelessness whose seriousness would he apparent to anyone who shares the community’s general sense of right and wrong” (Cabrera, 10 NY3d at 377 [internal quotation marks, brackets and citation omitted]).

Furthermore, the proof was sufficient to support the jury’s conclusion that defendant acted recklessly—by consciously disregarding the risk he created—as opposed to negligently failing to perceive that risk. Defendant was familiar with the curve in the road near Adamczyk’s house, having driven by there on a number of prior occasions, and he had been warned twice about speeding into that very section of the road. When defendant first arrived at the party, Adamczyk told defendant in no uncertain terms not to speed by his driveway again. Later, just before the collision, Ligenzowski pleaded with defendant to slow down because they were “about to make the turn.” Taken together, “there was sufficient proof for the jury to find that defendant was aware of and consciously disregarded a substantial and unjustifiable risk that his actions would cause the death of another” (People v Heinsohn, 61 NY2d 855, 856 [1984]). Consequently, defendant’s convictions for second-degree manslaughter and second-degree assault are supported by legally sufficient evidence.

Defendant further contends that he is entitled to a new trial due to evidentiary errors. He claims that the trial court erred by giving an adverse inference charge as opposed to striking that portion of the accident reconstruction expert’s testimony addressing the speed of defendant’s car based on the missing Rosario notes. Belatedly, he asserts that the expert’s testimony regarding the car’s minimum speed was unreliable and should have been stricken because the expert could not produce or replicate the calculations by which he made his speed computations. At trial, however, defendant took a different posture—he asked the trial court to strike all of the expert’s testimony, which included a substantial amount of proof unrelated to the missing handwritten mathematical notes. Defendant did not, as he does now, single out the testimony pertaining to speed. Under these circumstances, we cannot say that the trial court abused its discretion by denying defendant’s request to strike the entirety of the expert’s testimony (see People v Martinez, 71 NY2d 937, 940 [1988]).

We have considered defendant’s remaining arguments and conclude that they are without merit.

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

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

Order affirmed.


author: Read, J.

text:
    [998 NE2d 1056, 976 NYS2d 432]
    The People of the State of New York, Respondent, v James Alcide, Appellant.
    Argued September 3, 2013;
    decided October 10, 2013

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (Melissa S. Horlick of counsel), for appellant.
    The court denied appellant’s due process rights to a jury trial and a fair trial by (a) personally assuming the prosecutor’s role during readbacks of the direct testimony of two prosecution witnesses, and then switching roles with the court reporter to read those witnesses’ cross-examination answers; and (b) failing to first advise counsel of its intended, unorthodox readback procedure before addressing the jury. (People v O’Rama, 78 NY2d 270; People v Arnold, 98 NY2d 63; People v Yut Wai Tom, 53 NY2d 44; People v Jamison, 47 NY2d 882; People v Moulton, 43 NY2d 944; People v Mees, 47 NY2d 997; Thom v Jaymee Fashions, 35 AD2d 946, 29 NY2d 534; People v Kovzelove, 242 AD2d 477, 91 NY2d 875; People v De Jesus, 42 NY2d 519; People v McLaughlin, 150 NY 365.)

      Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove and Keith Dolan of counsel), for respondent.
    Defendant has failed to preserve his claims that the trial court erred by participating in the readback of testimony and that the court did not give adequate notice of its intended response to the readback requests. (People v Becoats, 17 NY3d 643; People v Kelly, 5 NY3d 116; People v Mezon, 80 NY2d 155; People v Robinson, 88 NY2d 1001; People v Gray, 86 NY2d 10; People v Whalen, 59 NY2d 273; People v Rodriguez, 100 NY2d 30; People v Yut Wai Tom, 53 NY2d 44; People v Agramonte, 87 NY2d 765; People v Patterson, 39 NY2d 288.)
   OPINION OF THE COURT

Read, J.

Defendant James Alcide was indicted for second-degree murder (Penal Law § 125.25 [1]) and second- and third-degree weapon possession (Penal Law §§ 265.03 [2]; 265.02 [4]) in connection with a shooting on February 20, 2005. The victim, recently released from prison, had driven a female friend on an errand to pick up clothes at a Brooklyn laundromat late in the afternoon of that day, expecting to meet up with his girlfriend there; she had begun a relationship with defendant while the victim was incarcerated. After the victim spoke briefly with his girlfriend, he turned away and walked into a nearby small grocery store.

A bystander sitting in a car parked on the same side of the street as the grocery store was startled by a shot. When he looked in the direction of the sound, the bystander saw a man firing a gun into the store; he identified defendant as the shooter in a lineup and, later, in court. The victim’s friend, who was standing next to the victim’s car about 40 feet away from the store, waiting for him to return, also heard gun shots and saw defendant, whom she knew, sprinting out of the store with a gun in hand. The friend ran into the store where the victim was lying on the floor, grievously wounded. He spoke defendant’s name to her before losing consciousness. At that point, as a crowd was forming outside and the police were arriving, the friend saw the victim’s girlfriend and screamed “All this is your fault, you know. This is your fault.”

In summation, defense counsel principally attacked the reliability of the testimony of the bystander and the victim’s friend, the prosecution’s two key witnesses. He claimed that the bystander was farther away from the grocery store than he estimated and had an obstructed view of the shooter in crepuscular light, making his eyewitness identification of defendant suspect; and that the friend, who had been convicted of various fraud-related offenses, gave testimony that was incredible (e.g., the victim’s dying declaration), or, with respect to numerous factual matters (e.g., the time of the shooting, the color of the gun, the victim’s height), inconsistent with other trial evidence. He also contended that the crime scene outside the store, where the police recovered a shell casing and a live cartridge, had been compromised by the crowd of onlookers.

During deliberations, the jury sent notes to the judge to request readbacks of the testimony of both the bystander and the first police officer to arrive at the crime scene. At trial, this officer testified that on February 20, 2005, she and her partner were working patrol when they were notified via radio that a male had been assaulted; they drove the five or six blocks to the location of the reported assault, which was the grocery store; she observed a crowd outside the store and a shell casing on the sidewalk once the crowd of 20 or 30 onlookers was pushed back; she found the victim lying on the floor inside the store; he was “mumbling, but unconscious” and unable to answer when asked if he had been shot; and the ambulance arrived about two or three minutes later and took the victim to the hospital.

The police officer also described how the crime scene outside the store was cleared of onlookers and secured, and testified that when she arrived, she saw a woman (the victim’s girlfriend, as it turned out) “arguing with another individual” in front of the store. At the direction of her supervisor, the officer placed this woman, who denied having seen anything and “didn’t really want to talk,” in a patrol car for transport to the precinct. The officer and her partner were then detailed to the hospital, where she was assigned to stay outside the operating room. While waiting there a “couple of hours,” she learned the victim’s identity and, later, was informed that he had been pronounced dead. The officer identified the victim’s body at the morgue the next morning.

In the presence of defendant, counsel and the jury, the judge stated that he had received “notes requesting the reading of the testimony of the first officer at the crime scene. That will be Court Exhibit 3. And the reading of [the bystander’s] testimony, which will be Court Exhibit 4.” He then advised the jurors that

“[t]o expedite [the readbacks], and hopefully to keep you awake, what we will do on the direct, I will read the questions, the court [reporter] will read the witness’s response, and we’ll reverse that on cross-examination, with the reporter reading the questions and I’ll be reading the response of the witnesses.”

Neither party objected to this procedure for handling the read-backs.

The jury ultimately convicted defendant of intentional murder and the top weapon possession count. On December 12, 2006, the judge sentenced him to concurrent terms of imprisonment of 18 years to life and nine years, respectively, for these crimes. Defendant appealed, arguing that the trial judge committed mode of proceedings errors by departing from the protocol for handling jury notes set out in People v O’Rama (78 NY2d 270 [1991]), and by taking part in the readbacks.

On May 1, 2012, the Appellate Division affirmed the judgment of conviction and sentence (95 AD3d 897 [2d Dept 2012]), concluding that defendant’s unpreserved claims did not implicate O’Rama or otherwise constitute mode of proceedings errors, and declined to reach them in the interest of justice. Citing People v Starling (85 NY2d 509 [1995]), the court noted that “the jury merely requested read-backs of certain trial testimony” (95 AD3d at 898). A Judge of this Court granted defendant permission to appeal (19 NY3d 956 [2012]), and we now affirm.

I.

Section 310.30 of the Criminal Procedure Law “imposes two separate duties on the court following a substantive juror inquiry: the duty to notify counsel and the duty to respond” (O’Rama, 78 NY2d at 276). Indeed, “the trial court’s core responsibility under the statute is both to give meaningful notice to counsel of the specific content of the jurors’ request—in order to ensure counsel’s opportunity to frame intelligent suggestions for the fairest and least prejudicial response—and to provide a meaningful response to the jury” (People v Kisoon, 8 NY3d 129, 134 [2007]). A court’s failure to supply a meaningful notice or response constitutes error affecting the mode of proceedings, and therefore presents a question of law for appellate review even in the absence of timely objection (see O’Rama, 78 NY2d at 279; CPL 470.05 [2]).

A trial judge generally fulfills this core responsibility by following the procedure endorsed in O’Rama, which requires submission of a jury inquiry to the trial judge in writing, after which the judge marks the written inquiry as a court exhibit; reads it into the record in counsel’s presence and before the jury is recalled to the courtroom; allows counsel an opportunity to suggest responses to the inquiry; informs counsel of his intended instruction; and, once the jury returns, reads the inquiry aloud before responding (see O’Rama, 78 NY2d at 277-278 [adopting the procedure outlined in United States v Ronder, 639 F2d 931, 934 (2d Cir 1981)]; see also Kisoon, 8 NY3d at 134). We have, however, cautioned that the point of our decision in O’Rama is “not to mandate adherence to a rigid set of procedures, but rather to delineate a set of guidelines calculated to maximize participation by counsel at a time when counsel’s input is most meaningful, i.e., before the court gives its formal response” (O’Rama, 78 NY2d at 278 [emphasis added]; see also Kisoon, 8 NY3d at 135; People v Lykes, 81 NY2d 767, 769 [1993] [the trial judge did not commit O’Rama error by asking the jury, unbeknownst to the defendant, his counsel and the prosecutor, to clarify its note since the judge read the clarification into the record before reinstructing the jury with respect to the crimes charged, and defense counsel did not object to either the charge or the procedure employed by the court]). The touchstone is whether the way in which the judge chooses to handle a jury inquiry affords meaningful notice to counsel and a meaningful response to the jury (see O’Rama, 78 NY2d at 278; see also Lykes, 81 NY2d at 769 [“Section 310.30 does not require notice to defendant in every instance of communication from the jury to the court”]).

In O’Rama, the trial judge did not show a juror’s note to the defendant and his attorney, or read it aloud in open court before responding. Instead, he summarized the note’s “substance” for the jury and the parties before addressing the juror’s inquiry by administering an Allen charge for a second time (see Allen v United States, 164 US 492 [1896]). At that point, defense counsel unsuccessfully sought the note’s disclosure. We held that by neglecting to make a verbatim account of the juror’s communication available to the defendant’s attorney, the court deprived him of meaningful notice in violation of CPL 310.30, “thus representing] a significant departure from the organization of the court or the mode of proceedings prescribed by law [and] . . . presenting] a question of law [for our review] . . . , notwithstanding that defense counsel did not object to the court’s procedure until after the supplementary charge had been given” (O’Rama, 78 NY2d at 279 [internal quotation marks and citations omitted]).

The defendant in Starling likewise challenged the procedure followed by the trial judge in responding to jury notes, claiming O’Rama error. The two notes in dispute requested a rereading of the definition of intent. We concluded that the judge afforded meaningful notice, pointing out that

“[b]ecause the court read the entire content of the jury’s notes in open court prior to responding, this case is distinguishable from the situation presented in [O’Rama], where the trial court withheld from counsel the contents of a juror’s note, thereby depriving defendant of the opportunity to participate in formulating the court’s response ... By contrast, here, defense counsel was given notice of the contents of the jury notes and had knowledge of the substance of the court’s intended response—a verbatim rereading of the intent charge previously given on several occasions. Accordingly, counsel’s silence at a time when any error by the court could have been obviated by timely objection renders the claim unpreserved and unreviewable here” (Starling, 85 NY2d at 516 [citations omitted]).

Starling controls this case. As in Starling (and Lykes) and unlike O’Rama, the two jury notes—requests for readbacks of two witnesses’ testimony—were disclosed in their entirety in open court before the trial judge responded to them. And the judge explained exactly how he was going to conduct the read-backs. If defense counsel considered the judge’s intended approach prejudicial, he certainly had an opportunity to ask him to alter course, and it behooved him to do so (see People v Ramirez, 15 NY3d 824 [2010] [where defense counsel had notice of the contents of the jury’s note and the court’s intended response yet failed to object at a time when the error could have been cured, the defendant’s claim of error was unpreserved]).

II.

Defendant also contends that, regardless of whether the trial judge provided meaningful notice within the meaning of O’Rama, his participation in the readback constituted a mode of proceedings error. Defendant complains, in particular, that the judge’s announced approach was “patently uneven” because he “readily assum[ed] the prosecution’s role” by reading the questions posed by the prosecutor to the bystander and the police officer, which were designed to elicit testimony favorable to the People, and then reading their answers on cross-examination, where they gave testimony adverse to defense counsel’s theory of the case (i.e., that the bystander misidentified defendant as the shooter and the crowd of onlookers outside the grocery store “hindered” the police investigation). In short, defendant does not claim that the readback was selective; rather, he disagrees with how the judge participated in it as a reader.

The Second Department in People v Brockett (74 AD3d 1218 [2d Dept 2010]), a case remitted for a new trial because of a charging error, stated in dictum that the trial judge “should not have participated as a reader when the jury asked for a read-back of testimony,” warning that “[w]hen, during a read-back of testimony, a trial judge assumes the role of a witness or inquiring counsel, he or she may unwittingly and erroneously convey to [the] jury that the court is aligned with the party or counsel whose role the court has assumed in the read-back” (id. at 1221; see also People v Facey, 104 AD3d 788, 789 [2d Dept 2013] [while repeating Brockett’s admonition, the court concluded that any error in the particular case “was harmless, and under the circumstances . . . did not deprive the defendant of a fair trial”]). The Second Department cited only People v De Jesus (42 NY2d 519 [1977]) in support of its advice in Brockett.

The trial judge in De Jesus, a case featuring “sharp issues of credibility,” berated and denigrated defense counsel in front of the jury, characterizing him as “unworthy of respect and attention” (id. at 524). Under these circumstances, we concluded that the defendant was “unfairly burdened . . . with the obligation, not only of rebutting the proof of the People, but also of countering the implications imputed by the court[ ] [such that] the error [could not] be disregarded as harmless” (id.).

The trial judge’s aggressive behavior toward the defense attorney in De Jesus created a situation far different from anything alleged to have happened here—i.e., that the judge inadvertently conveyed sympathy for the People’s case by the mere fact that he read the questions put by the prosecutor to the People’s witnesses on direct examination, and these witnesses’ answers to the defense attorney’s questions during cross-examination. Still, we agree with the Second Department that, as a general matter, a trial judge should shun engaging in read-backs of testimony. In the usual case, it is easy enough for a judge to assign this task to non-judicial court personnel and thereby avoid any risk of creating a misperception in the minds of the jurors.

In a case where a trial judge nonetheless elects to participate in a readback (certainly, nothing in CPL 310.30 prohibits it), any error is not of the mode of proceedings variety. “Not every procedural misstep in a criminal case is a mode of proceedings error”; rather, this narrow exception to the preservation rule is “reserved for the most fundamental flaws,” such as shifting the burden of proof from prosecution to the defense, or delegating a trial judge’s function to a law secretary (see People v Becoats, 17 NY3d 643, 651 [2011]).

While defendant argues that objection would have been futile in this case, nothing in the record suggests that the trial judge was so wedded to taking part in the readbacks that he could not have been dissuaded by timely protest. His stated reasons for participating were simply to move matters along and make what were going to be lengthy readbacks easier for the jury to follow by supplying two readers, one to voice questions posed; another, answers given.

Defendant also contends that requiring preservation would be unfair here because defense counsel’s objection would have “telegraph[ed] to the jury that counsel believed the judge would be conveying his personal belief in the prosecution.” But there is always a danger that, by objecting, a trial attorney will draw the jury’s attention to something unfavorable to his client, or give the appearance of being argumentative or attempting to conceal evidence. Nonetheless, counsel in a criminal trial is responsible for bringing error to the court’s attention “at a time when [it] . . . could have been obviated” (Starling, 85 NY2d at 516). And, of course, defense counsel always could have objected and asked to approach the bench to discuss the matter at sidebar, out of the jury’s hearing.

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

Chief Judge Lippman and Judges Graffeo, Smith, Pigott, Rivera and Abdus-Saiaam concur.

Order affirmed.

      . Section 310.30 states that
      “[a]t any time during its deliberation, the jury may request the court for further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury’s consideration of the case. Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper.”

      . Brockett and Facey were handed down several years after the trial in this case was completed.