author: Smith, J.

text:
    [980 NE2d 504, 956 NYS2d 456]
    Bentoria Holdings, Inc., Respondent, v Travelers Indemnity Company, Appellant, et al., Defendants.
    Argued September 6, 2012;
    decided October 25, 2012

      POINTS OF COUNSEL

      Lazare Potter & Giacovas LLP, New York City (Stephen M. Lazare and Yale Glazer of counsel), for appellant.
    I. The earth movement exclusion bars coverage for Bentoria Holdings, Inc.’s claim. (Pioneer Tower Owners Assn. v State Farm Fire & Cas. Co., 12 NY3d 302; Sanabria v American Home Assur. Co., 68 NY2d 866; State of New York v Home Indem. Co., 66 NY2d 669; United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229; Commissioners of State Ins. Fund v Insurance Co. of N. Am., 80 NY2d 992; Government Empls. Ins. Co. v Kligler, 42 NY2d 863; Bethlehem Steel Co. v Turner Constr. Co., 2 NY2d 456; Broad St., LLC v Gulf Ins. Co., 37 AD3d 126; Red Ball Interior Demolition Corp. v Palmadessa, 173 F3d 481; Alamia v Nationwide Mut. Fire Ins. Co., 495 F Supp 2d 362.) II. Alternatively, the coverage claims should be severed. (Kelly v Yannotti, 4 NY2d 603; Burlington Ins. Co. v Guma Constr. Corp., 66 AD3d 622; Christensen v Weeks, 15 AD3d 330; Emmetsberger v Mitchell, 7 AD3d 483; Tilcon N.Y. v Transcontinental Ins. Co., 261 AD2d 608; Krieger v Insurance Co. of N. Am., 66 AD2d 1025.)

      John V. Decolater, Garden City, and Lerner Arnold & Winston, LLP (Jonathan J. Lerner of counsel), for respondent.
    I. The Appellate Division properly affirmed the denial of Travelers Indemnity Company’s motion for summary judgment and a declaration of no coverage. (Pioneer Tower Owners Assn. v State Farm Fire & Cas. Co., 12 NY3d 302; White v Continental Cas. Co., 9 NY3d 264; Vigilant Ins. Co. v Bear Stearns Cos., Inc., 10 NY3d 170; Antoine v City of New York, 56 AD3d 583; Primavera v Rose & Kiernan, 248 AD2d 842; Seaboard Sur. Co. v Gillette Co., 64 NY2d 304; Breed v Insurance Co. of N. Am., 46 NY2d 351; Lee v State Farm Fire & Cas. Co., 32 AD3d 902; Pepsico, Inc. v Winterthur Intl. Am. Ins. Co., 13 AD3d 599; Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321.) II. The Appellate Division properly affirmed the denial of Travelers Indemnity Company’s motion to sever the insurance coverage claims. (Anderson v Singh, 305 AD2d 620; Finning v Niagara Mohawk Power Corp., 281 AD2d 844; Kelly v Yannotti, 4 NY2d 603; Collins v Telcoa Intl. Corp., 283 AD2d 128.)

      Robinson & Cole LLP, New York City (Gerald P. Dwyer, Jr., and Wystan M. Ackerman of counsel), for American Insurance Association and others, amici curiae.
    I. This Court should enforce the earth movement exclusion as written. (Alamia v Nationwide Mut. Fire Ins. Co., 495 F Supp 2d 362; Buckner v Motor Veh. Acc. Indem. Corp., 66 NY2d 211; Barash v Insurance Co. of N. Am., 114 Misc 2d 325; Bailey v Hartford Fire Ins. Co., 565 F2d 826; Holy Angels Academy v Hartford Ins. Group, 127 Misc 2d 1024; Kula v State Farm Fire & Cas. Co., 212 AD2d 16; Cali v Merrimack Mut. Fire Ins. Co., 43 AD3d 415; Pioneer Tower Owners Assn. v State Farm Fire & Cas. Co., 12 NY3d 302; Lee v State Farm Fire & Cas. Co., 32 AD3d 902; Brice v State Farm Fire & Cas. Co., 761 F Supp 2d 96.) II. Contract certainty is essential to a viable insurance market. (Gregory v Tennessee Gas Pipeline Co., 948 F2d 203; Transcontinental Ins. Co. v Edwards, 139 F3d 1185.)
   OPINION OF THE COURT

Smith, J.

In Pioneer Tower Owners Assn. v State Farm Fire & Cas. Co. (12 NY3d 302 [2009]), we held that an “earth movement” exclusion in an insurance policy did not unambiguously apply to excavation. We now confront a policy in which a similar exclusion is expressly made applicable to “man made” movement of earth. We hold that this added language eliminates the ambiguity, and that loss caused by excavation is excluded from the policy.

Travelers Indemnity Company issued to plaintiff an insurance policy covering “direct physical loss of or damage to” a building in Brooklyn. Under the heading “EXCLUSIONS,” the policy said:

“1. We will not pay for loss or damage caused directly or indirectly by any of the following. . . .
“b. Earth Movement . . .
“(4) Earth sinking (other than sinkhole collapse), rising or shifting including soil conditions which cause settling, cracking or other disarrangement of foundations or other parts of realty. Soil conditions include contraction, expansion, freezing, thawing, erosion, improperly compacted soil and the action of water under the ground surface;
“all whether naturally occurring or due to man made or other artificial causes.”

The building suffered cracks as a result of an excavation being conducted on the lot next door to it. Plaintiff submitted a claim, which Travelers rejected, relying on the earth movement exclusion. Plaintiff sued for breach of the policy. Supreme Court denied Travelers’ motion for summary judgment; the Appellate Division affirmed (Bentoria Holdings, Inc. v Travelers Indem. Co., 84 AD3d 1135 [2d Dept 2011]), but granted leave to appeal to this Court (2011 NY Slip Op 87261[U] [2011]). We now reverse.

Pioneer was in most respects virtually identical to this case. The defendant there insured a building against “accidental direct physical loss” (12 NY3d at 305); the building suffered cracks and other damage as a result of an excavation on an adjoining lot. The defendant refused to pay, relying on an earth movement exclusion very similar to the one quoted above, with the distinction that the last words of the earth movement exclusion here—“all whether naturally occurring or due to man made or other artificial causes”—were absent in Pioneer.

The plaintiff in Pioneer argued that the policy did not clearly exclude “an excavation—the intentional removal of earth by humans” (id. at 308). We found that argument to be “reasonable” (id.), and therefore held that the earth movement exclusion “did not unambiguously remove” excavation damage from the coverage of the policy (id. at 305). But the same argument is not available to plaintiff here. By expressly excluding earth movement “due to man made or other artificial causes,” the policy contradicts the idea that “the intentional removal of earth by humans” is not an excluded event. This policy cannot reasonably be read to cover the damage on which plaintiff’s claim is based.

Accordingly, the order of the Appellate Division should be reversed, with costs, the motion of Travelers Indemnity Company for summary judgment dismissing the complaint as against it granted, and the certified question answered in the negative.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pxgott and Jones concur.

Order reversed, etc.


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    [980 NE2d 501, 956 NYS2d 453]
    The People of the State of New York, Respondent, v Lonnie R. Meckwood, Appellant.
    Argued September 13, 2012;
    decided October 25, 2012

      POINTS OF COUNSEL

      Fitzsimons, Mack & Mills, P.C., Valatie (Brent R. Stack of counsel), for appellant.
    I. The Third Department’s affirmation of the sentencing court’s adjudication of appellant as a second violent felony offender was erroneous because it is in direct conflict with this Court’s ruling in People v Carpenteur (21 NY2d 571 [1968]). II. The Third Department’s affirmation of the sentencing court’s adjudication of appellant as a second violent felony offender was erroneous because it was based upon a litany of erroneous case law originating in the Third Department.
      (People v Treadwell, 80 AD2d 697; People v Coolbaugh, 259 AD2d 781; People v Arroyo, 179 AD2d 393, 79 NY2d 997; People v Hamilton, 104 AD2d 1048; People v Carpenteur, 21 NY2d 571; People v Kuey, 83 NY2d 278.) III. Section 70.04 (1) (b) of the Penal Law is unconstitutional because it provides for and requires application of New York law to foreign convictions to establish the elements of a felony conviction, but does not provide for or require application of the New York youthful offender statute, which could have, and in this case did have, significant repercussions. IV The People’s statement as to predicate violent felony conviction was defective for failure to comply with section 400.15 (2) of the Criminal Procedure Law. V Section 70.04 (1) (b) (v) of the Penal Law violates the Equal Protection Clause of the New York State Constitution and is therefore unconstitutional.

      Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.
    I. Defendant was properly adjudicated as a second violent felony offender. (People v Carpenteur, 21 NY2d 571; People v Muniz, 74 NY2d 464; People v Gonzalez, 61 NY2d 586; People v Kuey, 83 NY2d 278; People v Treadwell, 80 AD2d 697; People v Coolbaugh, 259 AD2d 781; People v Hamilton, 104 AD2d 1048; People v Ross, 7 NY3d 905; People v Ochs, 16 AD3d 971; People v McDowell, 56 AD3d 955.) II. The second violent felony offender statute is constitutional. (People v Pacheco, 53 NY2d 663; People v Walker, 81 NY2d 661; People v Shannon, 89 NY2d 1000; People v Drayton, 39 NY2d 580; People v Carpenteur, 21 NY2d 571; People v Muniz, 74 NY2d 464; People v Tatta, 196 AD2d 328; People v Orr, 57 AD2d 578.)
   OPINION OF THE COURT

Jones, J.

Defendant contests his second violent felony offender adjudication, predicated upon a prior foreign conviction that occurred when he was 18 years old, contending that, because he could have been accorded youthful offender status had he committed that crime in New York, he is entitled to such status for the purpose of enhanced sentencing. He also raises whether Penal Law § 70.04 (1) (b) (v)’s tolling provision violates the Equal Protection Clause of the New York State Constitution. These arguments are contrary to our enhanced sentencing jurisprudence.

In March 2010, defendant was convicted, upon a plea of guilty, of attempted robbery in the first degree. Thereafter, he was adjudicated a second violent felony offender, based upon his 1999 Pennsylvania conviction for first degree burglary. At the time of the 1999 conviction, defendant, then 18 years old, was not entitled to youthful offender status pursuant to Pennsylvania laws.

In July 2010, prior to sentencing, defendant objected to the use of his prior burglary conviction in Pennsylvania as a predicate violent felony. He argued that, had he committed the crime in New York, he would have been eligible for consideration as a youthful offender; and, if so adjudicated, it could not be used as a predicate conviction. He also argued that Penal Law § 70.04 (1) (b) (v), the provision that tolls the 10-year look-back period while a person is incarcerated, violates the Equal Protection Clause of the New York State Constitution.

County Court rejected defendant’s arguments and adjudicated him a second violent felony offender. The Appellate Division affirmed (86 AD3d 865 [3d Dept 2011]). A Judge of this Court granted defendant leave to appeal (17 NY3d 954 [2011]), and we now affirm.

Pursuant to Penal Law § 70.04, a person may receive an enhanced sentence as a second violent felony offender where the prior conviction occurred in a foreign jurisdiction and the underlying offense has all of the essential elements of a violent felony if it had occurred in New York. It is well settled that foreign convictions have the “same force and effect in New York that [they] would have where entered” when assessing whether a defendant is subject to multiple offender status (People v Kuey, 83 NY2d 278, 284 [1994]).

In New York, a prior adjudication as a youthful offender— whether it occurred in New York or another jurisdiction—cannot serve as the basis for multiple offender sentencing provided the foreign youthful offender adjudication is similar to and consistent with New York’s youthful offender treatment (see People v Carpenteur, 21 NY2d 571 [1968]; cf. Kuey, 83 NY2d 278). New York courts, however, have declined to retroactively assign youthful offender status to underlying convictions of foreign jurisdictions even though, had the crimes been committed in New York, such consideration could have been granted (see People v Arroyo, 179 AD2d 393, 394 [1st Dept 1992]; People v Coolbaugh, 259 AD2d 781, 782 [3d Dept 1999]). In People v Treadwell, the Appellate Division accurately observed, “mere speculation that defendant might have been accorded youthful offender treatment had the offense been committed in New York, where such treatment was not and could not have been accorded by the jurisdiction in which the crime was actually committed, cannot preclude the use of such a conviction as a predicate felony” (80 AD2d 697, 698 [3d Dept 1981]).

Here, defendant did not receive youthful offender treatment for the underlying offense at issue. Defendant is not now entitled to a retroactive application of youthful offender status to a foreign felony conviction. Instead, County Court properly assigned the same status to the underlying conviction as did the foreign jurisdiction in which the conviction had been entered.

Penal Law § 70.04 (1) (b) (iv) and (v) prohibits enhanced sentencing where more than 10 years have passed between sentencing for the prior felony and commission of the present felony, excluding all periods of incarceration during such time period. Defendant argues that this provision violates the Equal Protection Clause because repeat offenders with lengthy sentences may receive harsher punishments than repeat offenders with lesser sentences or no periods of incarceration. While the tolling provision, as applied to persons with differing years of incarceration, may result in disparate punishment, there is no equal protection violation under our Constitution.

“The equal protection clause does not mandate absolute equality of treatment but merely prescribes that, absent a fundamental interest or suspect classification, a legislative classification be rationally related to a legitimate State purpose” (People v Parker, 41 NY2d 21, 25 [1976]). Thus, given the absence of a suspect class or a fundamental right at issue, this statutory provision “need only be supported by some rational basis to survive constitutional scrutiny” (People v Walker, 81 NY2d 661, 668 [1993]).

As the Walker Court explained, enhanced sentencing statutes punish a defendant “more for the second felony . . . because recidivism evidences a lack of rehabilitation and a greater danger to society” (id. at 667 [emphasis omitted]). Section 70.04 of the Penal Law furthers that legitimate interest. Moreover, it was not irrational for the Legislature, in section 70.04 (1) (b) (v), to omit periods of incarceration from the 10-year look-back period, in order to assess whether a prior violent felon has abstained from a repeat offense within a 10-year period. As the Court has previously observed, “New York has a legitimate interest in upholding the State’s Penal Law, and in furtherance of this interest it was not irrational for the Legislature to punish those who repeatedly violate New York’s criminal laws more harshly than those who have violated our laws but once” (id. at 668 [emphasis omitted]). Indeed, it is rational to omit periods of incarceration from the look-back period because society has an interest in treating differently individuals who demonstrate good behavior during the time in which they are released and living in society from those who cannot.

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

Chief Judge Lippman and Judges Cipakick, Graffeo, Read, Smith and Pigott concur.

Order affirmed.


author: Chief Judge Lippman.

text:
    [979 NE2d 1173, 955 NYS2d 846]
    The People of the State of New York, Respondent, v Luis Alvarez, Appellant. The People of the State of New York, Respondent, v William George, Appellant.
    Argued September 7, 2012;
    decided October 30, 2012

      POINTS OF COUNSEL

      Appellate Advocates, New York City (Kendra L. Hutchinson and Lynn W.L. Fahey of counsel), for appellant in the first above-entitled action.
    Appellant was denied his Sixth Amendment right to a public trial when the court, pursuant to its blanket policy in every criminal trial, secretly ejected his parents from the courtroom due to purportedly insufficient seating without informing the parties, considering reasonable alternatives to closure, or even engaging at all in the Waller v Georgia (467 US 39 [1984]) analysis. (People v Martin, 16 NY3d 607; People v Colon, 71 NY2d 410; In re Oliver, 333 US 257; People v Jones, 47 NY2d 409; People v Kin Kan, 78 NY2d 54; People v Peterson, 186 AD2d 231, 81 NY2d 824; People v De Jesus, 42 NY2d 519; Levine v United States, 362 US 610; Press-Enterprise Co. v Superior Court of Cal., Riverside Cty., 464 US 501; People v Ramos, 90 NY2d 490.)

      Richard A. Brown, District Attorney, Kew Gardens (Danielle Hartman and John M. Castellano of counsel), for respondent in the first above-entitled action.
    Because defendant did not raise his public trial claim until after his parents were readmitted to the courtroom, he failed to preserve his contention for review and failed to comply with Supreme Court precedent requiring that he invoke his right to a public trial. Further, defendant’s statement in open court indicating that he had no desire for his family to be present in the courtroom during jury selection constituted a waiver of his claim and rendered the closure trivial as to him. (People v Gray, 86 NY2d 10; People v Jackson, 196 NY 357; People v Garcia, 95 NY2d 946; People v Nieves, 90 NY2d 426; People v Miller, 257 NY 54; People v Martin, 50 NY2d 1029; People v Michael, 48 NY2d 1; People v Kelly, 5 NY3d 116; People v Martin, 16 NY3d 607; Gibbons v Savage, 555 F3d 112.)

      Appellate Advocates, New York City (Denise A. Corsí and Lynn W.L. Fahey of counsel), for appellant in the second above-entitled action.
    Appellant’s Sixth Amendment right to a public trial was violated when the court closed the courtroom during jury selection for insufficient reasons and without considering alternatives to closure. (Waller v Georgia, 467 US 39; People v Martin, 16 NY3d 607; People v Hinton, 31 NY2d 71; In re Oliver, 333 US 257; People v Colon, 71 NY2d 410; People v Jones, 47 NY2d 409; Press-Enterprise Co. v Superior Court of Cal., Riverside Cty., 464 US 501; People v Kin Kan, 78 NY2d 54; Gibbons v Savage, 555 F3d 112; People v Clemons, 78 NY2d 48.)

      Charles J. Hynes, District Attorney, Brooklyn (Sholom J. Twersky, Leonard Joblove and Victor Barall of counsel), for respondent in the second above-entitled action.
    Defendant failed to preserve his claim that he was deprived of his right to a public trial. In any event, the trial court’s temporary exclusion of defendant’s mother and other spectators from a limited portion of the initial stage of voir dire was of a de minimis nature, and thus, does not warrant reversal of his conviction. (People v Nieves, 2 NY3d 310; People v Martin, 16 NY3d 607; Waller v Georgia, 467 US 39; People v Miller, 257 NY 54; People v Vargas, 236 AD2d 258; People v Rivera, 162 AD2d 728; People v Scott, 134 AD2d 379; People v Garcia, 95 NY2d 946; People v Nieves, 90 NY2d 426; United States v Hitt, 473 F3d 146.)
   OPINION OF THE COURT

Chief Judge Lippman.

The question presented by these appeals is whether a defendant must preserve the argument that he was deprived of the right to a public trial when his family members were excluded from the courtroom during a portion of voir dire. Because we find that preservation is required, we must affirm in George. However, since the issue was adequately preserved in Alvarez, we reverse and remit the matter to Supreme Court for a new trial.

People v Alvarez

Alvarez was charged with two counts each of criminal possession of a weapon in the second, third and fourth degrees. Prior to trial, the parties discussed the possibility of defendant pleading guilty but, after discussing the offer with his mother, defendant elected to proceed to trial. The court brought in potential jurors and the parties conducted voir dire. Five jurors were selected from the first prospective venire. Another panel of 14 prospective jurors was then asked preliminary questions by the court concerning their prior experiences as jurors.

Upon returning from the lunch recess, defense counsel notified the court that, although it had escaped his notice, defendant advised him that his parents had not been present for the morning’s jury selection proceedings. Although defendant’s parents were present at that time, counsel moved for a mistrial based on the earlier denial of the right to a public trial. The court denied the motion, observing that the courtroom had been filled by prospective jurors and that in “every trial we ask the family to step out and as soon as seats are available, they are [the] first ones offered seats.”

The jury ultimately convicted defendant as charged. The Appellate Division modified by vacating the convictions for criminal possession of a weapon in the fourth degree and remitting for resentencing, and otherwise affirmed (76 AD3d 1098 [2d Dept 2010]). The Court rejected defendant’s argument that he had been deprived of a public trial as unpreserved and, in any event, without merit. A Judge of this Court granted defendant leave to appeal (16 NY3d 827 [2011]) and we now reverse.

People v George

Defendant was charged with robbery in the first, second and third degrees, as well as petit larceny. Prior to jury selection, the court noted that

“the defendant has some people in the courtroom and they are certainly entitled to be here. The only thing I would ask, when we have potential jurors come in, there will not be enough seats for everybody. Within five minutes, I’ll excuse people and in order to not have spectators and jurors sitting together I’ll have the spectators leave.”

Defense counsel made no protest, but instead thanked the judge, and the parties continued with the proceedings. The court brought in a panel of prospective jurors, gave them preliminary instructions and excused a number of individuals who indicated that they were unable to be fair and impartial. After 18 prospective jurors were placed in the box for additional questioning, the court asked the remaining prospective jurors to move forward, freeing the last row for the public. The court then requested that, when a court officer became available, any spectators be notified that they could enter the courtroom.

After trial, defendant was convicted of robbery in the first and second degrees. The Appellate Division affirmed, finding defendant’s argument that his right to a public trial had been violated unpreserved and, in any event, without merit (79 AD3d 1148 [2d Dept 2010]). A Judge of this Court granted defendant leave to appeal (16 NY3d 827 [2011]) and we now affirm.

Discussion

The right to a public trial “has long been regarded as a fundamental privilege of the defendant in a criminal prosecution and extends to the voir dire portion of the trial” (People v Martin, 16 NY3d 607, 611 [2011] [internal quotation marks and citations omitted]). Proceedings may nonetheless be closed when necessary, but the party seeking closure “ ‘must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and . . . must make findings adequate to support the closure’ ” (Martin, 16 NY3d at 611, quoting Waller v Georgia, 467 US 39, 48 [1984]).

In Martin, the defendant’s father was excluded from the courtroom during voir dire because the court maintained that it needed every seat for prospective jurors and because the court did not want the father communicating with any members of the jury pool. Despite the defendant’s objection on public trial grounds, the court closed the proceeding without considering any alternatives (see Martin, 16 NY3d at 610). We observed that neither of the concerns advanced by the trial court, “without more,” amounted to “an overriding interest . . . likely to be prejudiced,” but determined that “the trial court’s failure to consider any alternate accommodations violated defendant’s right to an open trial, regardless of the reasons for closure” (Martin, 16 NY3d at 611, 612). The obligation rests with the court to consider alternatives, even where the parties themselves do not offer any (see Martin, 16 NY3d at 612).

Our holding rested on Presley v Georgia (558 US 209, 213-214 [2010]), in which the United States Supreme Court made clear that a defendant’s right to a public trial under the Sixth Amendment includes the voir dire of prospective jurors. The Court observed that it had previously recognized that the First Amendment gave the public a right to be present at the voir dire stage of a trial in Press-Enterprise Co. v Superior Court of Cal., Riverside Cty. (464 US 501, 510 [1984]) and saw no basis for according a defendant any lesser protections under the Sixth Amendment (see Presley, 558 US at 213-214). The Court also held that “trial courts are required to consider alternatives to closure even when they are not offered by the parties,” observing that “ ‘[t]he process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system’ ” (Presley, 558 US at 214, quoting Press-Enterprise Co., 464 US at 505).

It is apparent that neither trial judge in the present cases considered any alternatives to closure. Rather, it seems to have been common practice, perhaps based on the size of the courtrooms involved, to exclude spectators during jury selection. However, our inquiry does not end there. Defendants maintain that Presley obviated any requirement that they raise a public trial objection. Although Presley clearly holds that the trial court has the obligation to consider alternatives to closure, it did not address whether a defendant must preserve his or her objection on public trial grounds. Indeed, defense counsel in that case “objected to the exclusion of the public from the courtroom . . . [and] requested some accommodation” (Presley, 558 US at 210 [internal quotation marks omitted]), thereby bringing the issue to the trial court’s attention. We decline to eliminate the preservation requirement on the basis of Presley. That case did not decide the issue.

The argument that a public trial violation is a mode of proceedings error likewise lacks merit. We have consistently required that errors of constitutional dimension—including the right to a public trial—must be preserved (see e.g. People v Garcia, 95 NY2d 946, 947 [2000]; People v Nieves, 90 NY2d 426, 431 n [1997]). As Presley does not compel any change in this respect, preservation of public tried claims is still required. Bringing a public trial violation to a judge’s attention in the first instance will ensure the timely opportunity to correct such errors.

Since George raised no objection, his claim is clearly unpreserved. By contrast, the protest raised by defense counsel in Alvarez, both immediately after the violation and as soon as he realized that an error had occurred, was sufficient to preserve the public trial issue. Notably, the court did not take issue with the credibility of counsel’s representation that he had only just learned that defendant’s parents had been excluded from the courtroom; nor was there any indication that counsel was attempting to engage in some type of artifice. In these circumstances, where only five jurors had been selected, the appropriate remedy would have been to grant the request for a mistrial and start jury selection anew.

We have considered the People’s remaining arguments in Alvarez and find them to be without merit.

Accordingly, in Alvarez, the order of the Appellate Division should be reversed and a new trial ordered, and in George, the order of the Appellate Division should be affirmed.

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

In People v Alvarez: Order reversed, etc.

In People v George: Order affirmed.


author: Graffeo, J.

text:
    [980 NE2d 933, 957 NYS2d 268]
    Robin Custodi et al., Respondents, v Town of Amherst et al., Defendants, and Peter Muffoletto et al., Appellants.
    Argued September 6, 2012;
    decided October 30, 2012

      POINTS OF COUNSEL

      Watson Bennett Colligan & Schechter, LLP, Buffalo (Joel B. Schechter of counsel), for appellants.
    I. Because Robin Custodi chose to rollerblade on Peter and Susan Muffoletto’s driveway with an awareness that falling as a result of encountering a height differential was a risk of the activity, the majority’s decision must be reversed. (Turcotte v Fell, 68 NY2d 432; Morgan v State of New York, 90 NY2d 471; Trupia v Lake George Cent. School Dist., 14 NY3d 392; Morlock v Town of N. Hempstead, 12 AD3d 652; Maddox v City of New York, 66 NY2d 270; Peters v City of New York, 269 AD2d 581; Sykes v County of Erie, 94 NY2d 912; Retian v City of New York, 259 AJD2d 684, 93 NY2d 811; Surace v Lostrappo, 176 Misc 2d 408; Sorice v Captree Homes, 250 AD2d 755.) II. The majority’s conclusion that there is an issue of fact about whether the conditions on Peter and Susan Muffoletto’s driveway were open and obvious has no support in the record and, as a result, the majority cannot and does not cite to any such evidence in the record. (Electrolux Corp. v Val-Worth, Inc., 6 NY2d 556; Loughry v Lincoln First Bank, 67 NY2d 369; Suria v Shiffman, 67 NY2d 87; Westbrook v WR Activities-Cabrera Mkts., 5 AD3d 69; Tagle v Jakob, 97 NY2d 165; Trevett v City of Little Falls, 24 AD3d 1197; Lamey v Foley, 188 AD2d 157.) III. The policy considerations articulated in Trupia v Lake George Cent. School Dist. (14 NY3d 392 [2010]), “facilitating free and vigorous participation in athletic activities,” mandate finding that the complaint must be dismissed “to preserve these beneficial pursuits as against the prohibitive liability.” (Anand v Kapoor, 15 NY3d 946; Morgan v State of New York, 90 NY2d 471.) IV Not only is there no evidence that the change in elevation was the proximate cause of Robin Custodi’s alleged injuries, it was her own failures that caused the incident. (Blake v Gardino, 35 AD2d 1022, 29 NY2d 876; Alvord & Swift v Muller Constr. Co., 46 NY2d 276; Ginther v Ginther, 30 AD3d 1031; Smith Bros. Constr. Co. v New York Sur. Co., 236 AD2d 799; Mochen v State of New York, 57 AD2d 719.)

      Andrews Bernstein & Maranto, LLP, Buffalo (Robert J. Maranto, Jr., of counsel), for respondents.
    I. The doctrine of primary assumption of risk is not applicable in this case. (Griffin v Lardo, 247 AD2d 825; Sutfin v Scheuer, 145 AD2d 946; Cotty v Town of Southampton, 64 AD3d 251; Ashbourne v City of New York, 82 AD3d 461; Anand v Kapoor, 15 NY3d 946.) II. Even if primary assumption of risk applied in this case, the risk was not known, apparent, or reasonably foreseeable. (Lamey v Foley, 188 AD2d 157; Mauriello v Port Auth. of N.Y. & N.J., 8 AD3d 200.) III. Whether the defect was open and obvious is a question of fact for the jury, and does not absolve appellants of their duty. (Westbrook v WR Activities-Cabrera Mkts., 5 AD3d 69; Tagle v Jakob, 97 NY2d 165; Holl v Holl, 270 AD2d 864; MacDonald v City of Schenectady, 308 AD2d 125; Cupo v Karfunkel, 1 AD3d 48; Lamey v Foley, 188 AD2d 157; Konopczynski v ADF Constr. Corp., 60 AD3d 1313.) IV There is evidence that the change in elevation was the proximate cause of Robin Custodi’s injuries. (Bulman v P & R Enter., 17 AD3d 1139; Ingersoll v Liberty Bank of Buffalo, 278 NY 1.)
   OPINION OF THE COURT

Graffeo, J.

In this case involving a plaintiff who fell and sustained injuries while rollerblading, we conclude that the doctrine of primary assumption of the risk does not preclude her common-law negligence claim against the landowner defendants. We therefore affirm the Appellate Division order reinstating the complaint.

In July 2007, plaintiff Robin Custodi broke her hip when she tripped and fell while rollerblading in her residential neighborhood in the Town of Amherst. Moments before the accident, plaintiff, an experienced rollerblader, noticed a truck blocking her path of travel on the street and navigated around it by skating onto a driveway entrance to reach the sidewalk running parallel to the road. Plaintiff skated by several houses before attempting to reenter the street using a driveway owned by defendants Peter and Susan Muffoletto. As plaintiff neared the end of defendants’ driveway, she checked for oncoming traffic but did not stop. Plaintiff fell when one of her skates allegedly struck a two-inch height differential where the edge of defendants’ driveway met a drainage culvert that ran the length of the street.

Plaintiff and her husband, suing derivatively, commenced this negligence action against defendants to recover damages for plaintiffs injuries. Following discovery, defendants moved for summary judgment dismissing the complaint on two grounds. Primarily, they asserted that plaintiff assumed the risk of injury by voluntarily engaging in recreational rollerblading, thereby negating their duty of care to her as landowners. Alternatively, defendants contended that there was no triable issue of fact as to whether the height differential was a proximate cause of plaintiffs accident.

Supreme Court granted the motion and dismissed the complaint, agreeing with defendants that plaintiff assumed the risk of her injuries. A divided Appellate Division reversed and reinstated the complaint, concluding that the doctrine of primary assumption of the risk did not apply to plaintiff s activity and that a triable issue of fact existed on the question of proximate cause (81 AD3d 1344 [4th Dept 2011]). The dissent would have affirmed Supreme Court’s dismissal of the complaint. The Appellate Division granted defendants leave to appeal on a certified question (2011 NY Slip Op 72435[U] [2011]).

Defendants claim that the Appellate Division erred in declining to apply the doctrine of assumption of the risk to this case. Because plaintiff chose to rollerblade on their property with an awareness that a skater using the neighborhood’s residential driveways and sidewalks could encounter bumps or height differentials, defendants contend that plaintiff necessarily assumed the inherent risk of a fall. Plaintiff responds that the Appellate Division correctly held that the assumption of the risk doctrine is not applicable since she was not engaged in a sporting competition or an athletic or recreative activity at a designated venue. In plaintiffs view, this case is governed by ordinary premises liability principles.

Our analysis begins with CPLR 1411, which the Legislature adopted in 1975 to abolish contributory negligence and assumption of the risk as absolute defenses in favor of a comparative fault regime. CPLR 1411 provides:

“In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.”

Despite the text of this provision, we have held that a limited vestige of the assumption of the risk doctrine—referred to as “primary” assumption of the risk—survived the enactment of CPLR 1411 as a defense to tort recovery in cases involving certain types of athletic or recreational activities (see Turcotte v Fell, 68 NY2d 432, 439 [1986]). Rather than operating as a complete defense, the doctrine in the post-CPLR 1411 era has been described in terms of the scope of duty owed to a participant (see Morgan v State of New York, 90 NY2d 471, 485 [1997]). Under this theory, a plaintiff who freely accepts a known risk “commensurately negates any duty on the part of the defendant to safeguard him or her from the risk” (Trupia v Lake George Cent. School Dist., 14 NY3d 392, 395 [2010]).

More particularly, primary assumption of the risk applies when a consenting participant in a qualified activity “is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” (Bukowski v Clarkson Univ., 19 NY3d 353, 356 [2012] [internal quotation marks and citation omitted]). A person who chooses to engage in such an activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan, 90 NY2d at 484). As a result, participants may be held to have consented to those injury-prone risks that are “known, apparent or reasonably foreseeable” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 657 [1989] [internal quotation marks and citation omitted]). The duty owed in these situations is “a duty to exercise care to make the conditions as safe as they appear to be” (Turcotte, 68 NY2d at 439). On the other hand, participants are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced (see Morgan, 90 NY2d at 485).

Since the adoption of CPLR 1411, we have generally restricted the concept of assumption of the risk to particular athletic and recreative activities in recognition that such pursuits have “enormous social value” even while they may “involve significantly heightened risks” (Trupia, 14 NY3d at 395). Hence, the continued application of the doctrine “facilitate^] free and vigorous participation in athletic activities” (Benitez, 73 NY2d at 657), and fosters these socially beneficial activities by shielding coparticipants, activity sponsors or venue owners from “potentially crushing liability” (Bukowski, 19 NY3d at 358).

Consistent with this justification, each of our cases applying the doctrine involved a sporting event or recreative activity that was sponsored or otherwise supported by the defendant, or occurred in a designated athletic or recreational venue. In Morgan, for example, we dismissed claims by a bobsledder injured on a bobsled course, and by two students who were injured while attending martial arts classes (90 NY2d at 486-488). Similarly, we applied assumption of the risk to bar claims by plaintiffs who suffered injuries while participating in collegiate baseball (see Bukowski, 19 NY3d at 358); high school football (see Benitez, 73 NY2d at 658-659); recreational basketball on an outdoor court (see Sykes v County of Erie, 94 NY2d 912, 913 [2000]); professional horse racing (see Turcotte, 68 NY2d at 437); speedskating on an enclosed ice rink (see Ziegelmeyer v United States Olympic Comm., 7 NY3d 893, 894 [2006]); and a round of golf at a golf course (see Anand v Kapoor, 15 NY3d 946, 948 [2010]).

In contrast, in Trupia we recently declined to apply the assumption of the risk doctrine to a child who was injured while sliding down a bannister at school. Based on the tension that exists between assumption of the risk and the dictates of CPLR 1411, we clarified that the doctrine “must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation” (Trupia, 14 NY3d at 395). We noted that the injury-causing activity at issue in Trupia— horseplay—did not render the school worthy of insulation from a breach of duty claim, as it was “not a case in which the defendant solely by reason of having sponsored or otherwise supported some risk-laden but socially valuable voluntary activity has been called to account in damages” (id. at 396).

Guided by these principles, we conclude that assumption of the risk does not apply to the fact pattern in this appeal, which does not fit comfortably within the parameters of the doctrine. As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues. In this case, plaintiff was not rollerblading at a rink, a skating park, or in a competition; nor did defendants actively sponsor or promote the activity in question.

Moreover, extension of the doctrine to cases involving persons injured while traversing streets and sidewalks would create an unwarranted diminution of the general duty of landowners— both public and private—to maintain their premises in a reasonably safe condition. As we explained in an earlier case, assumption of the risk “does not exculpate a landowner from liability for ordinary negligence in maintaining a premises” (Sykes, 94 NY2d at 913). The exception would swallow the general rule of comparative fault if sidewalk defects or dangerous premises conditions were deemed “inherent” risks assumed by non-pedestrians who sustain injuries, whether they be joggers, runners, bicyclists or rollerbladers (see Ashbourne v City of New York, 82 AD3d 461, 463 [1st Dept 2011]; Cotty v Town of Southampton, 64 AD3d 251, 257 [2d Dept 2009]). We therefore decline to expand the doctrine to cover the circumstances presented here.

We further agree with the Appellate Division that defendants are not entitled to judgment as a matter of law on the issue of proximate causation. Defendants did not advance the argument in their motion for summary judgment that, assuming ordinary premises liability principles apply rather than assumption of the risk, their duty to make the premises reasonably safe did not include a duty to alter the height differential at the base of their driveway to accommodate rollerbladers. Hence, that common-law negligence issue remains to be litigated.

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

Chief Judge Lippman and Judges Ciparick, Read, Smith, Pigott and Jones concur.

Order affirmed, etc.

      . Plaintiff also sued the Town of Amherst, the Town of Amherst Highway Department, the County of Erie, the Erie County Highway Department, the Erie County Department of Public Works and the Village of Williamsville. Plaintiff later stipulated to discontinue the action as against the County defendants and the Village. The complaint was eventually dismissed against the Town defendants, so all claims against the municipal defendants have been dismissed.

      . We do not now consider whether there could be any exceptions to this general principle. Resolution of this appeal requires us only to conclude that no exception is warranted under the facts presented.


text:
    [980 NE2d 505, 956 NYS2d 457]
    The People of the State of New York, Respondent, v Michael J. Solomon, Appellant.
    Argued September 4, 2012;
    decided October 30, 2012

      POINTS OF COUNSEL

      Harrington & Mahoney, Buffalo (Mark J. Mahoney of counsel), for appellant.
    I. In the absence of a sufficient inquiry by the court, and waiver by the accused, defense counsel’s conflict of interest requires a new trial—regardless of prejudice. (People v Gomberg, 38 NY2d 307; People v Macerola, 47 NY2d 257; People v Lombardo, 61 NY2d 97; People v Alicea, 61 NY2d 23; People v Wandell, 75 NY2d 951; People v McDonald, 68 NY2d 1; People v Stewart, 126 AD2d 943; People v Gordon, 272 AD2d 133; Wheat v United States, 486 US 153; United States v Locascio, 6 F3d 924.) II. Without an actual waiver of Miranda rights, and the interrogation being recorded, the statements made by the accused should have been suppressed. (Miranda v Arizona, 384 US 436; Carnley v Cochran, 369 US 506; People v Huntley, 15 NY2d 72; Oregon v Elstad, 470 US 298; People v Combest,
      4 NY3d 341; United States v Plummer, 118 F Supp 2d 945; United States v Mansker, 240 F Supp 2d 902; People v Oglesby, 15 AD3d 888; People v Rosario, 20 Misc 3d 401; People v Crews, 18 Misc 3d 1120.) III. The unqualified admission of the complainant’s extrajudicial accusations requires reversal. (Reed v McCord, 160 NY 330; People v De George, 73 NY2d 614.) IV Appellant was deprived of effective assistance of counsel. (People v Baldi, 54 NY2d 137; People v Zaborski, 59 NY2d 863.) V The court’s rulings violated the accused’s right to present a defense. (People v Hudy, 73 NY2d 40; People v Shapiro, 50 NY2d 747; Chambers v Mississippi, 410 US 284; Washington v Texas, 388 US 14; People v Mandel, 61 AD2d 563, 48 NY2d 952; People v Ruiz, 71 AD2d 569; People v Torre, 42 NY2d 1036; People v Carter, 37 NY2d 234.) VI. The cumulative errors deprived appellant of a fair trial. (People v Crimmins, 36 NY2d 230; People v Durrin, 32 AD3d 665.)

      Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), for respondent.
    I. Defendant received effective assistance of counsel under the “conflict of interest” doctrine. (People v Ortiz, 76 NY2d 652; People v Alicea, 61 NY2d 23; People v Ennis, 11 NY3d 403; People v Abar, 99 NY2d 406; People v Macerola, 47 NY2d 257; People v Konstantinides, 14 NY3d 1; People v Harris, 99 NY2d 202; People v Lombardo, 61 NY2d 97.) II. Defendant’s statement was properly admitted. (People v Berg, 92 NY2d 701; People v Mateo, 2 NY3d 383, 542 US 946; People v Davis, 55 NY2d 731; People v Sirno, 76 NY2d 967; People v Falkenstein, 288 AD2d 922, 97 NY2d 704; People v Hawkins, 11 NY3d 484; People v Rosas, 30 AD3d 545, 8 NY3d 493; People v Beckingham, 57 AD3d 1098, 13 NY3d 742.) III. Defendant’s conversation with the complainant was properly admitted. (People v Chico, 90 NY2d 585; People v Jackson, 148 AD2d 930, 74 NY2d 665; People v Hawkins, 11 NY3d 484.) IV Defendant received effective assistance of counsel. (People v Flores, 84 NY2d 184; People v Turner, 5 NY3d 476; People v Baldi, 54 NY2d 137; People v Rivera, 71 NY2d 705; People v Garcia, 75 NY2d 973; People v Satterfield, 66 NY2d 796.) V Defendant’s right to present a defense was not violated. (Michigan v Lucas, 500 US 145; Rock v Arkansas, 483 US 44; United States v Valenzuela-Bernal, 458 US 858.) VI. Defendant received a fair trial. (People v Clyde, 18 NY3d 145.)
   OPINION OF THE COURT

Smith, J.

The lawyer who represented defendant at a pretrial hearing and at trial was simultaneously representing, in an unrelated matter, a police officer who testified for the People that defendant had confessed to one of the charged crimes. We hold that, because there was no valid waiver of the lawyer’s conflict of interest, defendant is entitled to a new trial.

I

Defendant was charged with raping his daughter, and committing other sex offenses against her, over a four-year period beginning when she was 10 years old. The evidence against him included a partial confession, in which defendant told two police detectives, Karen Smith and Larry Kuebler, that he had had sex with his daughter once.

A Huntley hearing was held on the voluntariness of defendant’s statements to the detectives. Before the hearing began, defense counsel advised the court that she represented Kuebler “in an unrelated civil matter.” She said that she had disclosed this to defendant, and that defendant “respects the nature of my representation of Detective Kuebler . . . and . . . has agreed to waive any conflict in that regard.” The judge asked defendant: “Is that correct, Mr. Solomon?” and defendant replied “Yes, sir.” The record reflects no other discussion with defendant about the conflict, and discloses nothing further about the nature of counsel’s representation of Kuebler.

Kuebler testified at the Huntley hearing and at trial, and was cross-examined by the lawyer who was representing him. According to Kuebler’s testimony (which was consistent with Smith’s), Smith was the detective in charge of the case and had been the first to interview defendant, while Kuebler sat in a nearby room, listening through an audio system and taking notes. He testified that defendant first denied to Smith that he had sex with his daughter, but that as the interview went on “his denials kind of weakened . . . [a]nd at one point Detective Smith asked him if he did have sex with his daughter and he stated that he did.” After Smith finished her interview, Kuebler conducted his own, in which, Kuebler testified, defendant told Kuebler “that he got drunk one time and had sex with his daughter just one time.”

Defendant’s motion to suppress his statements was denied, and he was convicted by a jury. He appealed on the ground, among others, that his lawyer’s conflict denied him the effective assistance of counsel. The Appellate Division agreed with defendant that the trial court’s inquiry into the conflict was sufficient, and that defendant’s waiver was therefore invalid. It nevertheless affirmed, holding that defendant “failed to establish that any ‘conflict affected the conduct of the defense’ ” (People v Solomon, 73 AD3d 1440, 1441 [4th Dept 2010], quoting People v Ortiz, 76 NY2d 652, 657 [1990]). A Judge of this Court granted leave to appeal (17 NY3d 801 [2011]), and we now reverse.

II

We agree with the Appellate Division that defendant did not effectively waive any conflict of interest here—indeed, the People do not strongly argue otherwise. Our cases make clear that a defendant in a criminal case may waive an attorney’s conflict, but only after an inquiry has shown that the defendant “has an awareness of the potential risks involved in that course and has knowingly chosen it” (People v Gomberg, 38 NY2d 307, 313-314 [1975]; see also People v Macerola, 47 NY2d 257, 263 [1979]; People v Wandell, 75 NY2d 951, 952-953 [1990]). The inquiry here, in which not even the nature of defense counsel’s simultaneous representation of Kuebler was placed on the record, was simply inadequate.

Thus, the case turns on whether the conflict had such a “substantial relation to the conduct of the defense” as to require reversal (People v McDonald, 68 NY2d 1, 9 [1986] [internal quotation marks and citation omitted]). We conclude that it did.

Discussions of the effect of a lawyer’s conflict of interest on a defendant’s right to the effective assistance of counsel distinguish between a potential conflict and an actual conflict (e.g. Cuyler v Sullivan, 446 US 335, 337, 349-350 [1980]; People v Macerola, 47 NY2d 257, 264-265 [1979]). The distinction can be illustrated by cases in which, as in Cuyler and Maceróla, the same lawyer represents more than one defendant. Such a multiple representation carries the potential for conflict, but the potential will not always be realized. In some cases, the interests of codefendants will be in harmony, as for example when their defense consists of an attempt to show that prosecution witnesses are lying or mistaken. Thus, in Maceróla, we rejected a per se rule that simultaneous representation of codefendants automatically requires reversal in the absence of a valid waiver: “There may always exist those cases in which joint representation of multiple defendants is, without doubt, justified, and the court’s neglect in admonishing codefendants of the potential risks entailed in joint representation would not deprive, without more, a defendant of his right to the effective assistance of counsel” (47 NY2d at 264). Similarly, in Cuyler, the Supreme Court, though observing that “a possible conflict inheres in almost every instance of multiple representation” (446 US at 348), held that the mere “possibility of conflict is insufficient to impugn a criminal conviction” (id. at 350).

On the other hand, where the interests of codefendants actually conflict, multiple representation will taint a conviction unless the conflict is waived. The “constitutional predicate” for an ineffective assistance claim is, as the Supreme Court said in Cuyler, a showing that the defendant’s counsel “actively represented conflicting interests” (id.). In Maceróla, where such an actual conflict was established, we held that reversal of the conviction was required. Indeed, we said there that reversal is necessary where even a “significant possibility” of an actual conflict exists (Macerola, 47 NY2d at 264; accord People v Recupero, 73 NY2d 877, 879 [1988]).

In a case like this one, where a defendant’s lawyer simultaneously represents not a codefendant but a prosecution witness, the potential for conflict is more obvious. Even in such cases, however, we have not adopted a per se rule (see McDonald, 68 NY2d at 11 n 5). Sometimes there will be no actual conflict between the defendant and a prosecution witness—for example, where the witness testifies only about a trivial or uncontroversial issue, or where the witness, testifying reluctantly for the People, really wants the defendant to be acquitted. More typically, however, a prosecution witness’s interest will actually conflict with the defendant’s. In such cases, we have held that the same attorney cannot simultaneously represent both, unless the conflict is validly waived (McDonald, 68 NY2d at 7-8; People v Mattison, 67 NY2d 462, 465 [1986]; Wandell, 75 NY2d at 952-953).

There was an actual conflict of interest between defendant and Kuebler here. Kuebler testified that defendant had confessed to raping his daughter. It was very much in defendant’s interest either to discredit that testimony or to show that the confession had been obtained by some unlawful or unfair means; Kuebler’s interest was the opposite. Our holdings in McDonald, Mattison and Wandell require reversal.

The People argue, and the Appellate Division held, that reversal is not necessary because defendant has not shown that the conflict “affected the conduct of the defense” (73 AD3d at 1441, quoting Ortiz, 76 NY2d at 657). Nothing in the record, the People say, proves that counsel was less effective in cross-examining Kuebler than she would have been had Kuebler not been her client. We assume that this is correct; it seems from the transcript that the cross-examination was competently performed. Defendant now suggests a number of lines of inquiry that counsel might have pursued, but did not. Such after-the-fact suggestions, however, can probably be made about almost every significant cross-examination in almost every case.

But we have never held, and decline now to hold, that the simultaneous representation of clients whose interests actually conflict can be overlooked so long as it seems that the lawyer did a good job. Our cases, and the United States Supreme Court’s, make clear that, where such an actual conflict exists and is not waived, the defendant has been deprived of the effective assistance of counsel.

When we have considered simultaneous representations, whether of codefendants, as in Maceróla and Recupero, or of prosecution witnesses, as in McDonald and Wandell, or of a co-defendant who became a prosecution witness, as in Mattison, we have not inquired into the quality of counsel’s performance, but have stressed the “very awkward position” of a lawyer subject to conflicting demands (Mattison, 67 NY2d at 470), and have protected a defendant’s “right to receive advice and assistance from an attorney whose paramount responsibility is to that defendant alone” (Macerola, 47 NY2d at 264). We have specifically held, and now reaffirm, that “[a] defendant is denied the right to effective assistance of counsel guaranteed by the Sixth Amendment when, absent inquiry by the court and the informed consent of defendant, defense counsel represents interests which are actually in conflict with those of defendant” (McDonald, 68 NY2d at 8). It is true that the Supreme Court in Cuyler said that a defendant must “establish that an actual conflict of interest adversely effected his lawyer’s performance” (446 US at 350). In context, however, it is clear that, in the view of the Cuyler Court, an adverse effect necessarily exists where “an actual conflict of interest” is established {id. at 349).

The cases in which a conviction has been upheld because the lawyer’s performance was not shown to be deficient were ones in which the lawyer was not subject to an actual conflict—the simultaneous representation of clients whose interests were opposed. Thus in People v Abar (99 NY2d 406 [2003]), the claimed conflict arose from defense counsel’s prior representation of the People. Similarly, in Mickens v Taylor (535 US 162 [2002]), the lawyer’s representations of the victim and the defendant were successive, not concurrent. In each of these cases, it was recognized that the potential for conflict existed, but the defendants failed to show that the potential was realized—i.e. that the conflict operated on the representation. People v Smart (96 NY2d 793 [2001]), People v Ennis (11 NY3d 403 [2008]) and People v Konstantinides (14 NY3d 1 [2009]) did not involve the representation of multiple clients at all, either simultaneously or in succession. In each of those cases there was a circumstance—a personal acquaintance with the victim in Smart, a promise made to cocounsel in Ennis, an accusation of wrongdoing against the lawyer in Konstantinides—that might have led the lawyer to be less than zealous on the client’s behalf, but in each case the client failed to show that the attorney’s performance was impaired.

The problem in this case—a lawyer who simultaneously owed a duty of loyalty both to the defendant on trial and to the police officer she cross-examined—is of a different order. In such a case, as we have repeatedly held, if the clients’ interests actually conflict, and if the defendant has not waived the conflict, the defendant is deprived of the effective assistance of counsel.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered, to be preceded by a new suppression hearing.

Chief Judge Ltppman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.

Order reversed, etc.


author: Jones, J. Smith, J. (dissenting).

text:
    [980 NE2d 510, 956 NYS2d 462]
    In the Matter of State of New York, Respondent, v Shannon S., Appellant.
    Argued September 11, 2012;
    decided October 30, 2012

      POINTS OF COUNSEL

      Davison Law Office, PLLC, Canandaigua (Mark C. Davison of counsel), for appellant.
    I. The standard of proof beyond a reasonable doubt, rather than the standard of clear and convincing evidence, should have been applied in this proceeding. (Matter of State of New York v Rashid, 16 NY3d 1; In re Winship, 397 US 358; United States v Comstock, 627 F3d 513; United States v Carta, 592 F3d 34; Matter of State of New York v Farnsworth, 75 AD3d 14, 15 NY3d 848; State of New York v Robert V., 31 Misc 3d 1210[A], 2011 NY Slip Op 50552[U], 33 Misc 3d 1208[A], 2011 NY Slip Op 51819[U]; Matter of State of New York v Daniel OO., 88 AD3d 212; Poole v Goodno, 335 F3d 705; United States v Sahhar, 917 F2d 1197; Matter of State of New York v Company, 77 AD3d 92.) II. Without proof of a diagnosis from the Diagnostic and Statistical Manual, the evidence is legally insufficient to support a determination that a person suffers from a mental abnormality. (O’Connor v Donaldson, 422 US 563; Kansas v Hendricks, 521 US 346; Foucha v Louisiana, 504 US 71; Kansas v Crane, 534 US 407; Matter of Jamie R. v Consilvio, 6 NY3d 138; Matter of David B., 97 NY2d 267; Matter of State of New York v Shawn X., 69 AD3d 165, 14 NY3d 702; United States v Carta, 592 F3d 34; Seling v Young, 531 US 250;
      Allen v Illinois, 478 US 364.) III. Civil confinement should not have been ordered without a factual finding that no less restrictive alternative was appropriate. (Matter of Torsney, 47 NY2d 667; Matter of Kesselbrenner v Anonymous, 33 NY2d 161; Covington v Harris, 419 F2d 617; Kansas v Crane, 534 US 407; Matter of K.L., 1 NY3d 362; Matter of Rhodanna C.B., 36 AD3d 106; Rivers v Katz, 67 NY2d 485, 68 NY2d 808; Matter of Simone D., 9 NY3d 828; Matter of State of New York v Flagg, 77 AD3d 1400, 17 NY3d 784; Matter of State of New York v Donald N., 63 AD3d 1391.) IV When there is no finding of a dangerousness at a probable cause hearing, respondent in a Mental Hygiene Law article 10 proceeding must be released before trial. (Matter of State of New York v Reeve, 87 AD3d 1378; James v Powell, 19 NY2d 249; Trocom Constr. Corp. v Consolidated Edison Co. of N.Y., Inc., 7 AD3d 434; Matter of Hearst Corp. v Clyne, 50 NY2d 707; Matter of State of New York v Sanchez, 22 Misc 3d 1123[A], 2009 NY Slip Op 50256[U]; People v Brooks, 19 Misc 3d 407; Matter of State of New York v Rashid, 25 Misc 3d 318, 68 AD3d 615, 16 NY3d 1; Matter of State of New York v Pagan, 26 Misc 3d 1241[A], 2010 NY Slip Op 50506[U]; Matter of State of New York v Thompson, 24 Misc 3d 1208[A], 2009 NY Slip Op 51306[U]; Matter of State of New York v P.H., 22 Misc 3d 689.) V The trial court improperly reopened the proof sua sponte. (People v Arnold, 98 NY2d 63; Matter of Kyle FF., 85 AD3d 1463; Matter of Yadiel Roque C., 17 AD3d 1168; Capodiferro v Capodiferro, 77 AD3d 1449; Mitchell v New York Hosp., 61 NY2d 208; Town of Orangetown v Magee, 88 NY2d 41; People v Zawistowski, 168 AD2d 950; People v Mendez, 225 AD2d 1051; People v Whipple, 97 NY2d 1; People v Olsen, 34 NY2d 349.)

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure, Barbara D. Underwood and Andrea Oser of counsel), for respondent.
    I. Respondent failed to preserve his challenge to Mental Hygiene Law article 10’s “clear and convincing evidence” standard of proof, and that standard satisfies due process in any event. (People v O’Hara, 96 NY2d 378; Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244; Matter of Barbara C., 64 NY2d 866; People ex rel. Battista v Christian, 249 NY 314; Misicki v Caradonna, 12 NY3d 511; People v Harnett, 16 NY3d 200; Matter of Rivera v Smith, 63 NY2d 501; People v Baumann & Sons Buses, Inc., 6 NY3d 404; Dalton v Pataki, 5 NY3d 243; People v Knox, 12 NY3d 60.) II. Respondent failed to preserve his claim that due process precludes a finding of mental abnormality absent a mental condition recognized by the DSM-IV and that claim is academic here. (People v Dozier, 52 NY2d 781; People v Hawkins, 11 NY3d 484; Matter of Barbara C., 64 NY2d 866; Matter of Hofbauer, 47 NY2d 648.) III. The disposition of confinement comports with due process. (Melahn v Hearn, 60 NY2d 944; People v Hawkins, 11 NY3d 484; Matter of Barbara C., 64 NY2d 866; Matter of George L., 85 NY2d 295; Matter of State of New York v Fox, 79 AD3d 1782; Matter of State of New York v Richard VV., 74 AD3d 1402; Matter of State of New York v Motzer, 79 AD3d 1687; Matter of State of New York v Donald N., 63 AD3d 1391.) IV Mental Hygiene Law article 10 expressly precludes respondent’s appeal from the probable cause determination, which in any event is subsumed by the final disposition. (People ex rel. Campolito v Bennett, 296 AD2d 835, 98 NY2d 615; People ex rel. Reamy v Director of Cent. Islip State Hosp., 35 AD2d 595.) V The Fourth Department properly rejected respondent’s claim that Supreme Court’s decision to reopen the record warranted a new trial. (People v Arnold, 98 NY2d 63; People v Moulton, 43 NY2d 944; People v Jamison, 47 NY2d 882; People v Johnson, 82 AD3d 415; People v DeLeyden, 10 NY2d 293.)
   OPINION OF THE COURT

Jones, J.

The primary issue on this appeal is whether there was legally sufficient evidence to support the finding that respondent Shannon S. suffers from a mental abnormality as defined under article 10 of the Mental Hygiene Law. On the particular facts of this case, we hold there was.

Respondent has an extensive criminal record which includes various sexual offenses involving nonconsenting or underage, adolescent victims. In 1992, at 19 years of age, respondent was charged with sexual abuse in the third degree for pinning down a female acquaintance on her bed, removing her shirt and fondling her while she struggled to push him away. Respondent subsequently pleaded guilty to disorderly conduct and was sentenced to time served. In 1997, at 24 years of age, respondent was charged with rape in the third degree for supplying a 15-year-old girl with marijuana and alcohol, and engaging in sexual intercourse. Respondent pleaded guilty to sexual misconduct in satisfaction of the charge and was sentenced to a conditional discharge and a fine. Two years later, in 1999, respondent was charged with the forcible rape and sodomy of a 13-year-old girl who was babysitting for his sister; the violent nature of the attack resulted in the hospitalization of the victim. Respondent pleaded guilty to rape in the second degree and was sentenced to an indeterminate term of 1 to 3 years’ incarceration.

Upon release in 2002, respondent, at age 30, commenced a sexual relationship with a 16-year-old girl that resulted in her pregnancy. As a result of this relationship, respondent was subsequently charged in 2003 with rape in the third degree, criminal sexual act in the third degree and endangering the welfare of a child. Respondent, however, absconded and was not prosecuted until 2005 when he was apprehended in Florida and returned to New York. Respondent pleaded guilty to criminal sexual act in the third degree and received a sentence of 2 to 4 years’ imprisonment.

While incarcerated, respondent was interviewed, at the request of the New York State Office of Mental Health, by Dr. Jacob E. Hadden, a licensed psychologist and psychiatric examiner. As a result of his personal examination of respondent and a review of the available criminal records, Dr. Hadden diagnosed respondent with paraphilia not otherwise specified (paraphilia NOS), antisocial personality disorder, as well as alcohol abuse. In a written evaluation report, Dr. Hadden concluded that respondent suffers from a mental abnormality within the meaning of article 10 of the Mental Hygiene Law that predisposes him to the commission of sexual offenses and makes it difficult for him to control such behavior. Specifically, Dr. Hadden noted that respondent’s criminal history “demonstrated a deviant sexual interest in adolescents below the age of consent” and “his six year pattern of sexual offending behavior toward adolescent females, despite repeated sanctions, and his pronounced cognitive distortions involving sexual relationships with children indicate the presence of a paraphilic disorder with regard to nonconsenting adolescent females.” Significantly, it was observed that respondent was “unable to give a coherent explanation of why adults should not have sex with children” and instead “he expressed frustration with several of his victims that they reported the incidents.”

As a result, the State filed a petition commencing a proceeding under article 10 for the civil management of respondent (Mental Hygiene Law § 10.06 [a]). In an ensuing probable cause hearing, Supreme Court concluded that probable cause had been established that respondent was a sex offender requiring civil management and directed that he be detained at a secure treatment facility pending trial (Mental Hygiene Law § 10.06 [k]).

At the subsequent nonjury trial, Dr. Hadden reiterated his prior conclusions, opining that respondent suffers from paraphilia NOS, antisocial personality disorder and alcohol abuse without physiological dependence in a controlled environment. Paraphilia NOS was defined as “recurrent and intense sexual fantasies, urges, or behaviors which involve . . . [t]he physical or psychological suffering, including the humiliation of oneself or one’s partner or children or other nonconsenting partners which occurs over a period of at least six months and results in personal distress or impairment in some clinically significant area of functioning.” According to Dr. Hadden, respondent’s “four sex offenses with nonconsenting partners” fell within the plain definition of paraphilia NOS; more notably, the 1997, 1999 and 2003 offenses also demonstrated respondent’s particular sexual proclivity for females below the age of consent. In Dr. Hadden’s view, respondent’s continuous engagement in sexual relationships with pubescent females, despite his extensive criminal punishments and ostensible attraction to adult females, evinced a compulsive attraction to minor, adolescent females. It was further concluded that respondent’s “impulsive” behavior and “irritability and aggressiveness,” supported a finding that his paraphilic urges constituted a “congenital or acquired condition” affecting his “emotional, cognitive [and] volitional capacity” and ability to control his sexual offending conduct.

Dr. Stuart M. Kirschner similarly diagnosed respondent as suffering from paraphilia NOS based on his personal examination of respondent and review of respondent’s criminal history. Dr. Kirschner determined that respondent’s sexual history, particularly his recurrent sexual offenses involving nonconsenting minors, satisfied the diagnostic criteria for paraphilia NOS and reflected an apparent attraction to pubescent girls—a form of paraphilia known as hebephilia. Dr. Kirschner further testified that the absence of hebephilia from the Diagnostic and Statistical Manual of Mental Disorders (DSM), an authoritative text widely used in the mental health profession, would not preclude such a diagnosis, explaining that the DSM “is extremely limited in terms of the paraphilias that are cited” as it only lists “some of the things that a clinician might address in the manual” and, thus, is not intended to be “exhaustive in that sense.”

Dr. Charles E Ewing, who testified on respondent’s behalf, concluded otherwise, stating that there was insufficient evidence to determine that respondent suffers from recurrent, intense sexual urges or behaviors. In Dr. Ewing’s view, there was no evidence that respondent “was sexually aroused particularly by teenage girls”; the three criminal incidents involving pubescent females constituted forcible rape and statutory rape, but were statistically insignificant to base a complete diagnosis that respondent suffers from a mental abnormality. Although he testified that paraphilia NOS is recognized by the DSM, Dr. Ewing took issue with the diagnoses of paraphilia NOS and hebephilia, arguing that hebephilia is neither abnormal nor deviant as “most males are sexually attracted to fully formed pubescent women.” Moreover, Dr. Ewing stated that a diagnosis of paraphilia NOS should be reserved for individuals who suffer from sexual disorders that are widely recognized by the medical community and are so unusual as to be “statistically deviant” and “morally deviant,” such as pedophilia.

Supreme Court concluded that the State had proven by clear and convincing evidence that respondent suffers from a mental abnormality under article 10 and ordered a dispositional hearing (Mental Hygiene Law § 10.07 [d]). At the subsequent hearing, respondent was found to be a dangerous sex offender requiring civil confinement and was ordered to be committed to a secure treatment facility (Mental Hygiene Law § 10.07 [f]).

The Appellate Division unanimously affirmed (85 AD3d 1646 [4th Dept 2011]) and this Court granted respondent leave to appeal (17 NY3d 894 [2011]).

Respondent’s primary contention on this appeal is that absent a diagnosis of a mental disease or disorder listed within the DSM, the evidence is legally insufficient to support a determination that an individual suffers from a mental abnormality under the Mental Hygiene Law. Specifically, respondent asserts that a diagnosis of a mental disorder or defect not contained within the DSM renders it unreliable and militates against its viability as a predicate medical condition for a finding of a mental abnormality.

The United States Supreme Court has previously remarked that “the States have, over the years, developed numerous specialized terms to define mental health concepts” (Kansas v Hendricks, 521 US 346, 359 [1997]), and in the context of civil confinement of dangerous sexual offenders, state legislatures have been granted the latitude to utilize phraseology that, while informed by prevailing medical knowledge, is intended to have greater legal, and not medical, significance. Thus, in the civil confinement arena, there will undoubtedly be an “imperfect fit between the questions of ultimate concern to the law and the information contained in [the DSM’s] clinical diagnosis” (Clark v Arizona, 548 US 735, 775 [2006]; Kansas v Crane, 534 US 407, 413 [2002] [“(T)he science of psychiatry, which informs but does not control ultimate legal determinations, is an ever-advancing science, whose distinctions do not seek precisely to mirror those of the law”]). In New York, the plain language of Mental Hygiene Law § 10.03 (i), in defining a mental abnormality, like the analogue statutes of several states (see In re Commitment of Frankovitch, 211 Ariz 370, 375, 121 P3d 1240, 1245 [Ct App 2005]; Commonwealth v Starkus, 69 Mass App Ct 326, 336, 867 NE2d 811, 820 [2007]), does not reference or require that a diagnosis be limited to mental disorders enumerated within the DSM. Therefore, contrary to respondent’s argument, a mental abnormality “need not necessarily be one so identified in the DSM in order to meet the statutory requirement” (United States v Carta, 592 F3d 34, 40 [1st Cir 2010]).

Respondent also asserts that a diagnosis lacking in recognition by the mental health community and scientific foundation would contravene the rehabilitative purpose of article 10, thereby indefinitely confining offenders for want of a meaningful way to cure or mitigate mental disorders or defects that predispose offenders to the commission of sexual offenses. That is, no cure exists for an amorphously defined and medically tenuous diagnosis. Understandably, respondent fears the widespread use of untested, nascent or outlier mental disorders or defects in article 10 civil confinement proceedings. Certain diagnoses may, of course, be premised on such scant or untested evidence and “be so devoid of content, or so near-universal in [their] rejection by mental health professionals,” as to be violative of constitutional due process and preclude their meaningful use in civil confinement proceedings (McGee v Bartow, 593 F3d 556, 577 [7th Cir 2010]). Paraphilia NOS, however, has been found to be a viable predicate mental disorder or defect that comports with minimal due process (see Carta, 592 F3d at 40-42; Brown v Watters, 599 F3d 602, 611-612 [7th Cir 2010]; McGee, 593 F3d at 567-572). Furthermore, any issue pertaining to the reliability of paraphilia NOS as a predicate condition for a finding of mental abnormality has been viewed as a factor relevant to the weight to be attributed to the diagnosis, an issue properly reserved for resolution by the factfinder (see Matter of State of New York v Leon F., 84 AD3d 1098, 1100-1101 [2d Dept 2011]; Matter of State of New York v Myron P., 86 AD3d 26, 28 [3d Dept 2011]; Carta, 592 F3d at 39-40; Brown, 599 F3d at 612). Any professional debate over the viability and reliability of paraphilia NOS is subject to the adversarial process which, by vigorous cross-examination, would “expose the strengths and weaknesses of the professional medical opinions offered” in reaching a considered legal determination as to whether a respondent suffers a mental abnormality, as defined by statute (Brown, 599 F3d at 612; Matter of State of New York v Andrew O., 16 NY3d 841, 844 [2011] [“The trial, however, boiled down to a battle of the experts”]).

In any event, respondent was diagnosed by the State’s experts as suffering from paraphilia NOS, a mental condition included in the DSM, as Dr. Ewing agreed. Indeed, Dr. Kirschner explained that each recognized diagnostic group in the DSM includes a respective “not otherwise specified category,” including paraphilia. Paraphilia NOS was described as “recurrent, intense sexually arousing fantasies, sexual urges, or behaviors” that “cause clinically significant distress or impairment in social, occupational, or other important areas of functioning” and are directed at, as relevant here, the suffering or humiliation of “children or other nonconsenting persons.” Respondent’s behavior was found to satisfy these criteria, and was particularly characterized as hebephilia, a condition subsumed by the paraphilia NOS subcategory.

As such, on the particular facts presented here, there was an adequate record to assess the diagnosis of paraphilia NOS and we find no basis to disturb the affirmed findings of the lower court. The State’s expert witnesses opined that respondent’s 1997, 1999 and 2003 sexual offenses against adolescent victims demonstrated an attraction to nonconsenting minors that satisfied the plain definition of paraphilia NOS and evinced symptoms of hebephilia. Further, to establish that respondent’s sexual offenses were the result of a mental abnormality, and not merely a series of isolated criminal incidents, both Drs. Hadden and Kirschner identified respondent’s lack of compunction and incapability to comprehend the inappropriateness of his conduct. More significantly, respondent’s recurrent engagement in sexual conduct with pubescent females, despite numerous criminal sanctions and an asserted attraction to adult females, coupled with his impulsive sexual behavior, amply demonstrated respondent’s compulsion to act upon sexual urges pertaining to pubescent females, thus supporting a finding that respondent suffers from a mental abnormality “involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that the person is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (Mental Hygiene Law § 10.03 [e]; see Matter of State of New York v Donald N., 63 AD3d 1391, 1394 [3d Dept 2009]; Matter of State of New York v Derrick B., 68 AD3d 1124, 1126-1127 [2d Dept 2009]; Matter of John N., 52 AD3d 834, 835-836 [2d Dept 2008]).

Respondent’s remaining contentions are either unpreserved or without merit.

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

Smith, J. (dissenting).

It is established that statutes like Mental Hygiene Law article 10, under which sex offenders who have mental abnormalities that make them dangerous may be committed to mental health facilities “for care, treatment and control” (Mental Hygiene Law § 10.06 [k]), are constitutional (Kansas v Hendricks, 521 US 346 [1997]). And even if the question had not already been decided, it would be hard to argue that the civil commitment of mentally abnormal sex offenders is constitutionally forbidden per se. It is permissible, as a general rule, to use civil proceedings to commit to institutions people who are mentally ill and dangerous to themselves or others {see Addington v Texas, 441 US 418 [1979]), and it hardly seems possible that dangerous sex offenders could be an exception to that rule.

Nevertheless, article 10 and kindred statutes create dangers of abuse—abuse that could threaten some very important principles. Many sex offenders are, or could reasonably be found to be, dangerous, and in common parlance they all have mental abnormalities: Mentally normal people do not commit sex crimes. Thus, unless “mental abnormality” is defined with scientific rigor, such statutes could become a license to lock up indefinitely, without invoking the cumbersome procedures of the criminal law, every sex offender a judge or jury thinks likely to offend again.

Some will intuitively respond: Not a bad idea. But it is a very bad idea, because not even a concern for public safety should be allowed to trump certain fundamental rules. Among them are that criminals can be confined only for crimes they have committed, after their guilt is proved beyond a reasonable doubt in a procedure in which they receive the many protections that our Constitution gives to those accused of crime, and that even when convicted they can be incarcerated for no more than the term of the maximum sentence provided by law. If the present sentences for sex offenders are too short, the legislature should make them longer, but it should not, and constitutionally cannot, simply substitute civil for criminal proceedings as a means of keeping dangerous criminals off the streets (see Kansas v Hendricks, 521 US at 372-373 [Kennedy, J., concurring]).

Thus the scope of statutes permitting the civil commitment of sex offenders must be kept within strict bounds. The United States Supreme Court, even while upholding such statutes, has made that clear. In his concurring opinion in Hendricks, Justice Kennedy—whose vote was necessary to the decision—wrote separately “to caution against dangers inherent when a civil confinement law is used in conjunction with the criminal process” (521 US at 371-372 [Kennedy, J., concurring]). He remarked: “If . . . civil confinement were to become a mechanism for retribution or general deterrence, or if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, our precedents would not suffice to validate it” (id. at 373; see also Kansas v Crane, 534 US 407, 412 [2002] [quoting Justice Kennedy’s Hendricks concurrence]; Foucha v Louisiana, 504 US 71, 82-83 [1992]).

The Supreme Court has warned that the application of statutes like article 10 must be limited to people who can be shown by scientifically valid criteria to have a “serious mental illness, abnormality, or disorder”—one that distinguishes them “from the dangerous but typical recidivist convicted in an ordinary criminal case” (Kansas v Crane, 534 US at 413). Appellant here seems to me to be a prototype of “the dangerous but typical recidivist convicted in an ordinary criminal case.” I see nothing in this record to support a finding that he is any more mentally abnormal than any other repeat sex offender. I therefore dissent from the majority’s holding that he may be committed indefinitely to a mental health facility in a civil proceeding.

The majority accepts as sufficient to support civil commitment the diagnoses proffered by the State’s experts that appellant suffers from “paraphilia not otherwise specified” (paraphilia NOS) and “hebephilia.” The majority also mentions the State experts’ diagnosis of “antisocial personality disorder” (ASPD) (majority op at 103), but wisely does not rely on it, for ASPD, at least as used by the State’s experts in this case, means little more than a deep-seated tendency to commit crimes. One of the State’s experts acknowledged that “maybe somewhere around half’ of the prison population could be labeled as having ASPD. If a diagnosis of ASPD could support civil commitment, the State could have locked up half of those now in prison without bothering with the complexities of the criminal law.

The diagnoses the majority does accept, paraphilia NOS and hebephilia, are problematic for several reasons. As applied to this case, they are not supported by the current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR), the standard classification used by mental health professionals in this country. Paraphilia NOS is listed in the DSM-IV-TR, but only as a “residual category” for “Paraphilias that are less frequently encountered” (DSM-IV-TR at 567)—examples given include necrophilia (attraction to corpses) and zoophilia (to animals) (id. at 576). The DSM-IV-TR description of paraphilia NOS is plainly not applicable to the appellant’s “abnormality”—a tendency to have sex with teenaged girls. And hebephilia—a State’s expert’s name for that tendency—is not in the DSM-IV-TR at all.

Appellant’s expert gave testimony that seems to me to support a finding that these two diagnoses, as presented by the State’s experts, amount to junk science devised for the purpose of locking up dangerous criminals. I have grave doubt whether either diagnosis would survive a Frye hearing to determine whether it is “sufficiently established to have gained general acceptance” in the psychiatric community (Frye v United States, 293 F 1013, 1014 [DC Cir 1923]). But no Frye hearing was held, the factfinder below accepted the State’s experts’ testimony, and I am not prepared to say as a matter of law that no diagnosis not mentioned in the DSM-IV-TR can have scientific validity. Thus I will assume for present purposes that the diagnoses of paraphilia NOS and hebephilia on which the State relied are scientifically defensible.

Even on that assumption, these diagnoses cannot be the basis for civil commitment in a case like this. That is because they do not perform the task that the Supreme Court in Crane said such a diagnosis must perform: “to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case” (534 US at 413). As to paraphilia NOS, I can demonstrate the problem simply by repeating the majority’s quotation from a State expert’s definition of that ailment:

“recurrent and intense sexual fantasies, urges, or behaviors which involve . . . [t]he physical or psychological suffering, including the humiliation of oneself or one’s partner or children or other non-consenting partners which occurs over a period of at least six months and results in personal distress or impairment in some clinically significant area of functioning” (majority op at 104).

This could describe the mental state of every dangerous rapist.

As for hebephilia, an expert testifying for the State defined it by distinguishing it from an indisputably recognized disorder, pedophilia, an attraction to prepubescent children. There is no evidence, the expert acknowledged, that appellant is a pedophile; rather he “is more inclined toward pubescent females, which would technically make him more of a hebephile.” But of course, the idea that a man’s mere attraction to pubescent females is abnormal is absurd. What is abnormal about appellant, and others who commit statutory rape by having sex with girls below the age of consent, is not that they find the girls attractive, but that they are willing to exploit them for their sexual pleasure—in other words, they commit statutory rape.

In short, in the State’s lexicon, paraphilia NOS is essentially a tendency to commit rape, and hebephilia a tendency to commit statutory rape. If these are mental abnormalities warranting civil commitment, most if not all of the people who commit these crimes can be civilly committed. But, as Justice Kennedy pointed out in his Hendricks concurrence, a statutory interpretation that permits “civil confinement ... to become a mechanism for retribution or general deterrence” cannot be sustained under Supreme Court precedent (521 US at 373).

Appellant seems, from the record in this case, to be a very bad actor. The community may well be safer if he is kept behind bars. But to put him there on the fiction that he has some sort of mental condition other than a tendency to commit the crimes for which he was convicted (and has served his time) is and should be constitutionally unacceptable. I therefore dissent.

Judges Ciparick, Graffeo and Read concur with Judge Jones; Judge Smith dissents in a separate opinion in which Chief Judge Lippman and Judge Pigott concur.

Order affirmed, without costs.

      . At the conclusion of the probable cause hearing, respondent signed a written consent form to remain in the custody of the Department of Correctional Services at the Wyoming Correctional Facility pending trial.

      . A mental abnormality is defined as “a congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct” (Mental Hygiene Law § 10.03 [i]).