author: Pigott, J. Read, J.

text:
    [900 NE2d 934, 872 NYS2d 383]
    Helmsley-Spear, Inc., et al., Appellants, v Michael Fishman, as President of SEIU Local 32B-32J, AFL-CIO, et al., Respondents.
    Argued October 14, 2008;
    decided November 24, 2008

      POINTS OF COUNSEL

      McCarter & English, LLP, New York City (Peter D. Stergios, Patrick M. Collins and Aimée Sato of counsel), for appellants.
    I. Federal labor law does not preempt a state court action to abate tortious activity. (Teamsters v Morton, 377 US 252; Machinists v Gonzales, 356 US 617; San Diego Building Trades Council v Garmon, 359 US 236; Machinists v Wisconsin Employment Relations Comm’n, 427 US 132; Healthcare Assn. of N.Y. State, Inc. v Pataki, 471 F3d 87; Moore v City of New York, 219 F Supp 2d 335; Belknap, Inc. v Hale, 463 US 491; Radcliffe v Rainbow Constr. Co., 254 F3d 772; Automobile Workers v Russell, 356 US 634; Linn v Plant Guard Workers, 383 US 53.)

      Levy Ratner, P.C., New York City (Andrew L. Strom, Daniel Engelstein and Dana Lossia of counsel), for respondents.
    I. The Appellate Division correctly held that appellants’ suit is preempted by the National Labor Relations Act. (Golden State Transit Corp. v Los Angeles, 475 US 608; Wisconsin Dept. of Industry v Gould Inc., 475 US 282; San Diego Building Trades Council v Garmon, 359 US 236; Burlington Northern R. Co. v Maintenance of Way Employes, 481 US 429; Sears, Roebuck & Co. v Carpenters, 436 US 180; NLRB v Sears, Roebuck & Co.,
      421 US 132; Edward J. DeBartolo Corp. v Florida Gulf Coast Building & Constr. Trades Council, 485 US 568; United States v Doe, 968 F2d 86; Kaufman v Allied Pilots Assn., 274 F3d 197; San Diego Building Trades Council v Garmon, 359 US 236.) II. Labor Law § 807 barred the trial court from enjoining the union’s drumming. (Jou-Jou Designs v International Ladies’ Garment Workers’ Union, Local 23-25, 94 AD2d 395, 60 NY2d 1011; Schivera v Long Is. Light. Co., 296 NY 26; National Woodwork Mfrs. Assn. v NLRB, 386 US 612; Wall St. Garage Parking Corp. v New York Stock Exch., Inc., 10 AD3d 223; Price Paper & Twine Co. v Miller, 182 AD2d 748; Burlington N. Santa Fe Ry. Co. v International Bhd. of Teamsters Local 174, 203 F3d 703.) III. Appellants have no claim for private nuisance. (Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564; 532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d 280; Dugway, Ltd. v Fizzinoglia, 166 AD2d 836; Lewis v Stiles, 158 AD2d 589; Langan v Bellinger, 203 AD2d 857; People v Sturm, Ruger & Co., 309 AD2d 91.)
   OPINION OF THE COURT

Pigott, J.

The issue on this appeal is whether plaintiffs’ private nuisance cause of action is preempted by the National Labor Relations Act (NLRA). We hold that it is not.

I.

Plaintiff Helmsley-Spear, Inc., managing agent of the Empire State Building (ESB), retained Copstat Security, LLC, a private security firm, to provide security services for the ESB. In 2005, defendants Michael Fishman, as President of SEIU Local 32B-32J, AFL-CIO, SEIU Local 32B-32J, AFL-CIO, and John Does 1-7 (collectively, the Union) began a concerted effort to organize Copstat employees. As part of that endeavor, on 18 separate days between November 2005 and February 2006, members of the Union assembled outside certain entrances of the ESB, distributing leaflets while one or more of the members drummed on a plastic container, metal pot or tin can.

Thereafter, nonparty Copstat filed three unfair labor practice charges against the Union with the National Labor Relations Board (NLRB), alleging that the Union’s picketing or threatened picketing violated 29 USC § 158 (b) (7) (C), and that the Union’s activity was designed to coerce Helmsley-Spear into discontinuing business with Copstat in violation of 29 USC § 158 (b) (4) (i), (ii) (B) and coerce Copstat employees into selecting the Union as their collective bargaining representative in violation of 29 USC §158 (b) (1) (A).

The NLRB dismissed the charges, finding that the Union “was engaged in protected handbilling or leafleting” and that “the use of the drum on the days in question . . . was [not] sufficient to transform the leafleting activity into unlawful conduct.” The NLRB’s Office of Appeals affirmed that decision on the same grounds.

Meanwhile, plaintiffs Helmsley-Spear and owners of nearby businesses commenced the instant private nuisance action against the Union seeking an order enjoining it from engaging in drumming or other noise-making activities. Following a hearing, Supreme Court granted plaintiffs’ request for a preliminary injunction, concluding that they met their burden of establishing that the drumming “caused stress and business interruption” which, if left unabated, would cause more stress and harm to the listeners (12 Misc 3d 1151[A], 2006 NY Slip Op 50855[U], *8). The court limited the injunction specifically to the drumming and did not prohibit the leafleting.

The Appellate Division reversed and dismissed the complaint, holding that plaintiffs’ “action to restrain conduct of loud drumming to publicize [the] [U]nion’s handbilling activities is preempted by federal labor law,” and stating that the NLRB had previously concluded that the Union had the right to engage in the drumming (Helmsley-Spear, Inc. v Fishman, 39 AD3d 361 [1st Dept 2007] [citations omitted]). Because it found plaintiffs’ claim to be preempted by federal law, the Appellate Division did not address the Union’s additional argument, that Labor Law § 807 prohibited the trial court from enjoining the drumming.

This Court granted leave (10 NY3d 703 [2008]) and we now reverse.

II.

It has been a hallmark of state-federal jurisprudence in the area of labor law that each jurisdiction recognize the respective rights and remedies of the other. The federal courts, in finding “presumptive preemption” with respect to certain union activities, have been careful to avoid interfering with a state’s right to keep order within its borders. The states, similarly, have been careful to respect the federal government’s right to protect unions, their workers and appropriate organizing activities.

In this regard, two federal statutes, NLRA §§ 7 and 8 (codified at 29 USC §§ 157, 158), “regulate ‘concerted activities’ and ‘unfair labor practices,’ respectively, seeking to protect the former and stamp out the latter” (Building Trades Employers’ Educ. Assn. v McGowan, 311 F3d 501, 508 [2d Cir 2002]). Because the NLRA does not include an express preemption provision (see Building & Constr. Trades Council v Associated Builders & Contractors of Mass./R.I., Inc., 507 US 218, 224 [1993]), the United States Supreme Court in San Diego Building Trades Council v Garmon (359 US 236 [1959]) addressed Congress’s silence, by holding that “state regulations and causes of action are presumptively preempted if they concern conduct that is actually or arguably either prohibited or protected by the Act” (Belknap, Inc. v Hale, 463 US 491, 498 [1983], citing Garmon, 359 US at 245).

Where conduct falls within the scope of this so-called “Garmon preemption,” state regulations or causes of action may still be maintained “if the behavior to be regulated is behavior that is of only peripheral concern to the federal law or touches interests deeply rooted in local feeling and responsibility” (Belknap, 463 US at 498, citing Garmon, 359 US at 243-244; Sears, Roebuck & Co. v Carpenters, 436 US 180, 200 [1978]; Farmer v Carpenters, 430 US 290, 295 [1977]). In such cases, “the state’s interest in controlling or remedying the effects of the conduct is balanced against both the interference with the [NLRB’s] ability to adjudicate controversies committed to it by the Act, and the risk that the state will sanction conduct that the Act protects” (Belknap, 463 US at 498-499, citing Sears, Roebuck & Co., 436 US at 205 [citations omitted]).

Here, even if one were to assume that the drumming constituted arguably “protected” conduct under the NLRA, as the Union argues and the Appellate Division implied, it does not necessarily follow that our state courts are foreclosed from adjudicating plaintiffs’ claim. This point was made clear in Sears, Roebuck & Co., where the United States Supreme Court held that a state trespass claim lodged by an employer against picketers—challenging the location of the picketing as opposed to the picketing itself—was not preempted by the NLRA even though trespass was arguably protected under the Act (436 US at 198-204).

The Sears Court recognized that, even in cases where an employer has no right to invoke the Board’s jurisdiction, preemption may be appropriate where “the exercise of state jurisdiction . . . might create a significant risk of misinterpretation of federal law and the consequent prohibition of protected conduct” (id. at 203). Nonetheless, the Court concluded that the state’s evaluation of whether the union’s trespass constituted protected activity under the Act did “not create an unacceptable risk of interference with conduct which the Board, and a court reviewing the Board’s decision, would find protected” because, although “there are unquestionably examples of trespassory union activity” where such conduct may or may not be protected, “experience under the Act teaches that such situations are rare and that a trespass is far more likely to be unprotected than protected” (id. at 205). That reasoning applies here.

The controversy in this case—whether the drumming constituted a private nuisance—is distinctly different from the matter presented by Copstat to the NLRB, which involved allegations that the Union engaged in impermissible picketing and coercive conduct. Moreover, there is no risk that the trial court’s adjudication of the nuisance action will result in a “significant risk of misinterpretation” of federal labor law or in the “consequent prohibition of protected conduct” because the trial court restricted its imposition of the preliminary injunction to the drumming and emphasized that the order did not affect the Union’s leafleting activity. Just as trespass, as found in Sears, “is far more likely to be unprotected than protected” under the Act, so, too, is the tort of private nuisance.

The dissent’s implication that Sears is inapplicable because the Board found that the drumming is “actually protected” and constitutes “federally protected conduct” (see dissenting op at 480) misconstrues the Board’s factual determination, which was centered on alleged “prohibited conduct,” namely, allegations of the unfair labor practices of impermissible picketing and coercive activity. The Board did not proclaim the drumming to be “protected conduct” under the NLRA but, rather, premised its holding exclusively on the leafleting itself, finding that “the use of the drum . . . was [not] sufficient to transform the leafleting activity into unlawful conduct.” That holding did not, ipso facto, render the drumming “protected conduct,” as the dissent claims, but merely determined that the drumming did not transform otherwise protected conduct into prohibited conduct.

Moreover, plaintiffs’ nuisance claim “touche[s] interests so deeply rooted in local feeling and responsibility” that it could not be inferred that Congress intended to deprive this State of the power to act (Garmon, 359 US at 244). The tort of private nuisance, much like the tort of trespass, has historically been governed by state law. It cannot be said that Congress, by enacting the NLRA, intended to preempt states from protecting their citizens from obnoxious conduct. Indeed, the United States Supreme Court has on numerous prior occasions found Garmon preemption inapplicable to other state common-law claims that touched upon a state’s “local interests” (see Belknap, 463 US 491 [1983], supra [state law claims for misrepresentation and breach of contract by strike replacements not preempted]; Sears, Roebuck & Co., 436 US 180 [1978], supra [state trespass claim allowed because the action concerned the location of the picketing and not the picketing itself]; Farmer, 430 US 290 [1977], supra [state intentional infliction of emotional distress claim not preempted, even though the conduct arguably involved unfair labor practices]; Linn v Plant Guard Workers, 383 US 53 [1966] [state defamation claims brought in the course of a labor dispute]; see also Automobile Workers v Russell, 356 US 634 [1958], reh denied 357 US 944 [1958] [pre-Garmon decision finding torts of threatened violence like false arrest, false imprisonment and malicious prosecution not preempted by the Act]).

Although the principal aim of Garmon preemption—to ensure the conformity of the national labor policy—is a sound one, the United States Supreme Court has been careful not to eliminate “state-court jurisdiction over conduct traditionally subject to state regulation without careful consideration of the relative impact of such a jurisdictional bar on the various interests affected” (Sears, Roebuck & Co., 436 US at 188) and has found that Garmon preemption should not be applied inflexibly in circumstances where “ ‘the State has a substantial interest in regulation of the conduct . . . and the State’s interest is one that does not threaten undue interference with the federal regulatory scheme’ ” (id. at 188, quoting Farmer, 430 US at 302).

Balancing the state interest in adjudicating private nuisance claims against the interference with the NLRB’s ability to determine matters committed to it by the NLRA and the risk that state courts will prohibit conduct otherwise protected by the Act, we conclude that Congress did not intend to preempt the jurisdiction of state courts to adjudicate the tortious conduct alleged here.

III.

The Union’s alternative argument, that the nuisance claim is preempted by the doctrine pronounced by the United States Supreme Court in Machinists v Wisconsin Employment Relations Comm’n (427 US 132 [1976]), which “applies to conduct the NLRA left unregulated” (Healthcare Assn. of N.Y. State, Inc. v Pataki, 471 F3d 87, 107 [2d Cir 2006]), is similarly unavailing.

The so-called Machinists preemption “proscribes state regulation and state-law causes of action concerning [unregulated] conduct. . . that was to remain a part of the self-help remedies left to the combatants in labor disputes” (Belknap, 463 US at 499, citing Machinists, 427 US at 140, 147-148). Preemption under Machinists “protects employers’ and unions’ use of ‘economic weapons’ that Congress aimed for them to have freely available” (Building Trades Employers’ Educ. Assn., 311 F3d at 508, citing Machinists, 427 US at 150-151). Thus, although there is no specific statutory provision that “expressly protects these economic weapons, they are integral parts of the legislative scheme arid cannot be subject to regulation by the states or the courts or even the Board” (Building Trades Employers’ Educ. Assn., 311 F3d at 509).

The drumming in this instance does not constitute an “economic weapon” or “self-help” remedy akin to, for example, the employee walkout in Machinists or a lockout by an employer. Loud drumming is not an “integral part[ ] of the legislative scheme” of the NLRA.

The Appellate Division order should be reversed, with costs, and the matter remitted to that Court for consideration of issues raised but not determined on appeal to that court.

Read, J.

(dissenting). The majority has not cited a single case that endorses a state court action challenging exactly the same conduct the National Labor Relations Board (NLRB or the Board) has already ruled to be protected by the National Labor Relations Act (NLRA or the Act). This is not surprising. Preemption is well-established as a matter of national labor policy, and is meant to avoid just the kind of conflict between federal and state law presented by this case.

I.

Under the Supreme Court’s decision in San Diego Building Trades Council v Garmon (359 US 236 [1959]),

“[w]hen it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law. Nor has it mattered whether the States have acted through laws of broad general application rather than laws specifically directed towards the governance of industrial relations. Regardless of the mode adopted, to allow the States to control conduct which is the subject of national regulation would create potential frustration of national purposes” (id. at 244 [footnote omitted]).

The Garmon court further emphasized that while “[a]t times it has not been clear whether the particular activity regulated by the State was governed by § 7 or § 8 or was, perhaps, outside both these sections” (id.), “courts are not primary tribunals to adjudicate such issues” (id. [emphasis added]). Rather,

“[i]t is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board. What is outside the scope of [a] Court’s authority cannot remain within a State’s power and state jurisdiction too must yield to the exclusive primary competence of the Board” (id. at 244-245 [citations omitted]).

As the Second Circuit recently pointed out, however, even the Garmon court itself

“recognized that the principles it announced were so broad that they would sometimes yield, as where, for instance, the activity regulated was merely peripheral to the federal concerns, or where the states’ need to regulate certain conduct was so obvious that one would not infer that Congress meant to displace the states’ power” (Healthcare Assn. of N.Y. State, Inc. v Pataki, 471 F3d 87, 95 [2d Cir 2006], citing Garmon, 359 US at 243-244).

More specifically, “[b]ecause Garmon covers so many different concerns and situations, the one-size fits all remedy can be difficult to administer” (Pataki, 471 F3d at 95), and in Sears, Roebuck & Co. v Carpenters (436 US 180 [1978]), the Supreme Court “distinguished] the substantive and remedial concerns” underlying Garmon “from the primary jurisdiction concern and prescribed] different treatments for each” (Pataki, 471 F3d at 95, citing Sears, 436 US at 201).

In Sears, the Supreme Court found that a California state trespass claim against a group of picketers was not preempted by the NLRA. While the facts of Sears at first seem similar to those of this case, the first sentence of the Sears opinion illuminates the crucial distinction:

“The question in this case is whether the National Labor Relations Act, as amended, deprives a state court of the power to entertain an action by an employer to enforce state trespass laws against picketing which is arguably—but not definitely— prohibited or protected by federal law” (Sears, 436 US at 182 [emphasis added]).

While federal law unquestionably trumps state law where there is an actual conflict, Sears focuses on the grey areas between actual conflict and no conflict at all: areas of “arguable” conflict between state tort law and federal labor law. Where such an “arguable” conflict exists, it is generally accepted that the appropriate federal tribunal should have the first chance to decide whether federal law, in fact, applies—a concept known as “primary jurisdiction.” Importantly, primary jurisdiction lies at the core of Sears, which explicitly relied on the defendant union’s failure to seek an adjudication before the NLRB in reaching its holding:

“The primary-jurisdiction rationale unquestionably requires that when the same controversy may be presented to the state court or the NLRB, it must be presented to the Board. But that rationale does not extend to cases in which an employer has no acceptable method of invoking, or inducing the Union to invoke, the jurisdiction of the Board. We are therefore persuaded that the primary jurisdiction rationale does not provide a sufficient justification for pre-empting state jurisdiction over arguably protected conduct when the party who could have presented the protection issue to the Board has not done so and the other party to the dispute has no acceptable means of doing so” (436 US at 202-203 [first and third emphases added]).

Here, the dispute was, in fact, submitted to the NLRB in the first instance, and the NLRB had ruled on the legality of the complained-of activity (drumming) by the time the nuisance claim was presented to Supreme Court. Accordingly, primary jurisdiction preemption—which Sears indicates can yield where no redress has been sought from a federal tribunal—is simply not involved. Instead, a much more powerful form of preemption is implicated: “[t]he danger of state interference with federally protected conduct [—]the principal concern of the second branch of the Garmon doctrine” (Sears, 436 US at 203). Critically, “there is a constitutional objection to state-court interference with conduct actually protected by the Act” (id. at 200 [emphasis added]). Since the NLRB actually ruled on the complained-of conduct in this case, the central question is whether this conduct was “actually protected” by the Act; in the case of “actually protected” activity, the discretionary exception outlined by Sears for certain “arguably protected” activities is inapplicable as a constitutional matter.

The NLRB’s ruling in this case must be read as finding the complained-of conduct to be “actually protected” under the Act. After Copstat filed a charge against the Union on December 8, 2005, alleging violations of NLRA § 8 (b) (1), (4) and (7) (codifled at 29 USC § 158), the Acting Regional Director of the NLRB “carefully investigated and considered the charges filed by [Cop-stat] against [the Union].” Upon a review of evidence adduced during the Board’s investigation, including “[e]vidence . . . establishing] that approximately six to twelve individuals associated with the Union distributed leaflets and played a drum on four separate days, for approximately IV2 to 3 hours per day, on the sidewalk in front of entrances to the Empire State Building” (emphasis added), the NLRB concluded that “[t]he evidence therefore establishes that the Union was engaged in protected handbilling or leafleting, and not in picketing or other coercive conduct. . . . Neither the use of [a King Kong] costume nor the use of the drum on the days in question, as described above, was sufficient to transform the leafleting activity into unlawful conduct” (emphasis added).

Because the NLRB has issued an actual determination in this case, the majority’s finding of nonpreemption requires the NLRB’s determination to be read not to protect the drumming activity (see Sears, 436 US at 199 [“there is a constitutional objection to state-court interference with conduct actually protected by the Act” (emphasis added)]). But such a reading does not comport with the facts and the weight of federal authority on the issue of “protected activity” under the Act.

While section 8 (b) (4) et seq. of the NLRA—specifically addressed in both Copstat’s complaint and the NLRB’s determination—is generally directed towards prohibited conduct, that section also outlines protected conduct; in particular,

“for the purposes of . . . paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution” (29 USC § 158 [b] [4] [emphasis added]).

Critically, it is the proviso to section 8 (b) (4) of the Act protecting “publicity, other than picketing, for the purpose of truthfully advising the public [of a labor dispute]” (emphasis added) that protects handbilling and leafleting directed at non-parties to a labor dispute; the operative language of this proviso is “publicity ... for the purpose of truthfully advising the public,” not the terms “handbilling” or “leafleting,” which are simply terms of art for activities covered by the proviso. Thus, it is clear that the NLRB’s determination that distributing leaflets, banging a drum, and wearing a King Kong costume constituted “protected handbilling or leafleting, and not . . . picketing or other coercive conduct” must be read to mean that all three activities (distributing leaflets, banging a drum, and wearing a King Kong costume) were actually protected under section 8 (b) (4) of the Act.

II.

Next, while the majority cites, in the alternative, a putative exception to absolute federal preemption for conduct implicating interests “deeply rooted in local feeling and responsibility” (Garmon, 359 US at 244), the Supreme Court has never applied this principle to conduct adjudged by the Board to be actually protected by the NLRA. Simply reading Garmon itself indicates why; here is the so-called “exception” placed in its proper context within the Garmon opinion:

“States [may have the] power to regulate . . . where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.
“When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law. Nor has it mattered whether the States have acted through laws of broad general application rather than laws specifically directed towards the governance of industrial relations. Regardless of the mode adopted, to allow the States to control conduct which is the subject of national regulation would create potential frustration of national purposes” (Garmon, 359 US at 243-244 [footnotes and citations omitted; emphasis added]).

In short, where conduct is actually found to be protected by the NLRA, as is the case here, this constitutes “compelling congressional direction” and no “inference]” is required to conclude that “Congress ha[s] deprived the States of the power to act.” Consequently, “state jurisdiction must yield.”

III.

Since the NLRB’s January 4, 2006 determination found the complained-of conduct (drumming) to be actually protected by the Act, appellants’ private nuisance action in state court has been preempted by the NLRA. As the Sears court pointed out, “there is a constitutional objection to state-court interference with conduct actually protected by the Act” (436 US at 199 [emphasis added]). Accordingly, I respectfully dissent.

Chief Judge Kaye and Judges Smith and Jones concur with Judge Pigott; Judge Read dissents in a separate opinion in which Judge Graffeo concurs; Judge Ciparick taking no part.

Order reversed, etc.

       By court order dated January 26, 2007, Empire State Building Company L.L.C. was substituted for Helmsley-Spear as plaintiff.

      . Notably, “[t]hat state law might provide remedies unavailable under the NLRA has never been a basis for avoiding Garmon preemption” (Richardson v Kruchko & Fries, 966 F2d 153, 157 [4th Cir 1992], citing Garmon, 359 US at 246-247 [“In fact, since remedies form an ingredient of any integrated scheme of regulation, to allow the State to grant a remedy . . . which has been withheld from the (NLRB) only accentuates the danger of conflict” (359 US at 247 [emphasis added])]; Operating Engineers v Jones, 460 US 669, 684 [1983]). Indeed, “the Supreme Court has made clear that state-law claims may be preempted even when a plaintiff is without a remedy under the NLRA” (Richardson, 966 F2d at 157, citing Guss v Utah Labor Relations Bd., 353 US 1 [1957]).

      . The critical role of the Board’s prior ruling in this case cannot be overstated: absent a prior ruling by the NLRB, the plaintiffs’ private nuisance cause of action might well not be preempted by the Act. But we need not, and should not, rule on that issue here, where the NLRB was presented with this dispute and ruled as it did.

      . The language of the NLRB’s determination in this case reveals the “publicity” basis for section 8 (b) (4) protection: after concluding that “[t]he evidence therefore establishes that the Union was engaged in protected hand-billing or leafleting, and not in picketing or other coercive conduct,” the Board stated that “[t]he use of an ape costume did not constitute signal picketing, but was a permissible device to draw attention to the Union’s hand-billing activities” (emphasis added).


source: Caselaw Access Project

author: Chief Judge Kaye.

license: Public Domain

text:
    [900 NE2d 946, 872 NYS2d 395]
    The People of the State of New York, Respondent, v Bryan R. Hawkins, Appellant. The People of the State of New York, Respondent, v Juan Eduardo, Appellant.
    Argued October 21, 2008 and October 23, 2008;
    decided November 25, 2008

      POINTS OF COUNSEL

      Richard W. Youngman, Conflict Defender, Rochester (Kimberly Czapranski and R. Adrian Solomon of counsel), for appellant in the first above-entitled action.
    I. Evidence that the victim suffered at least six hammer blows to the head with enough force to fracture his skull “like a hard boiled egg that you crack” established an intentional murder and no other crime. (People v Payne, 3 NY3d 266; People v Lawhorn, 21 AD3d 1289; People v Gonzalez, 1 NY3d 464; People v Hafeez, 100 NY2d 253; People v Gray, 86 NY2d 10; People v Danielson, 40 AD3d 174.) II. The chain of custody for blood swab “G” was broken when the police left the swab behind a filing cabinet at the crime scene for over four hours. The investigator’s testimony did not provide reasonable assurances of the identity and unchanged condition of the swab. (Amaro v City of New York, 40 NY2d 30; People v McGee, 49 NY2d 48; Durham v Melly, 14 AD2d 389; People v Felder, 178 AD2d 936; Mitulinski v Mitulinski, 17 AD2d 238; People v Brown, 115 AJD2d 610.) III. The trial court’s Sandoval ruling that allowed the prosecution to specifically identify two of Mr. Hawkins’s prior convictions as burglaries was an abuse of discretion. (People v Sandoval, 34 NY2d 371; People v Dickman, 42 NY2d 294; People v Syposs, 122 AD2d 600; People v Cooke, 101 AD2d 983; People v Wood, 94 AD2d 814; People v Hicks, 88 AD2d 519.) IV. The aggregate indeterminate 50 years to life sentence is harsh and excessive and should be reduced. (People v Delgado, 80 NY2d 780; People v Prather, 249 AD2d 954; People v Galvin, 249 AD2d 946; People v Donhauser, 255 AD2d 933; People v Santiago, 269 AD2d 770; People v Thompson, 60 NY2d 513.)

      Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), for respondent in the first above-entitled action.
    I. Defendant’s claim that his conviction for depraved indifference murder was based upon legally insufficient evidence is unpreserved for appellate review and therefore beyond the review power of the Court of Appeals. (People v Gray, 86 NY2d 10; People v Hines, 97 NY2d 56; People v Lawhorn, 21 AD3d 1289; People v James, 75 NY2d 874; People v Cochran, 302 AD2d 276; People v Gonzalez, 1 NY3d 464; People v Feingold, 7 NY3d 288; People v Register, 60 NY2d 270; Policano v Herbert, 7 NY3d 588; People v Payne, 3 NY3d 266.) II. Defendant’s conviction for depraved indifference murder was supported by legally sufficient evidence. (People v Sala, 95 NY2d 254; People v Dekle, 56 NY2d 835; People v James, 75 NY2d 874; People v Register, 60 NY2d 270; People v Sanchez, 98 NY2d 373; Policano v Herbert, 7 NY3d 588; People v Hafeez, 100 NY2d 253; People v Suarez, 6 NY3d 202; People v Russell, 91 NY2d 280; People v Payne, 3 NY3d 266.) III. The trial court properly found that the People established a sufficient chain of custody to permit the admission of a blood swab into evidence. (People v Julian, 41 NY2d 340; People v Flanigan, 174 NY 356.) IV. Defendant’s claim that the trial court’s Sandoval ruling was an abuse of discretion is unpreserved for appellate review and is otherwise without merit. (People v Walker, 83 NY2d 455; People v Robles, 38 AD3d 1294; People v Alston, 27 AD3d 1141; People v Lebron, 249 AD2d 147; People v Moreno, 278 AD2d 434; People v Gray, 86 NY2d 10; People v Combo, 291 AD2d 887; People v Hayes, 97 NY2d 203; People v Sandoval, 34 NY2d 371; People v Mattiace, 77 NY2d 269.) V Defendant’s claim that his sentence is unduly harsh or severe is not reviewable by this Court. (People v Thompson, 60 NY2d 513; People v Rytel, 284 NY 242; People v Potskowski, 298 NY 299.)

      Gregory C. Osakwe, Hartford, Connecticut, for appellant in the second above-entitled action.
    I. The intermediate appellate court erred in its ruling that Mr. Eduardo’s “challenge to the sufficiency of the evidence and all of his constitutional claims are unpreserved. (People v Carter, 40 AD3d 1310, 9 NY3d 873; People v Gray, 86 NY2d 10; People v Riddick, 34 AD3d 923, 9 NY3d 868; People v Thompson, 3 AD3d 511, 2 NY3d 747; People v Bynum, 70 NY2d 858; People v Payne, 3 NY3d 266; People v Kirkpatrick, 32 NY2d 17; People v Hines, 97 NY2d 56; Boykin v Alabama, 395 US 238; Griswold v Connecticut, 381 US 479.) II. The intermediate'appellate court’s finding that Mr. Eduardo’s “entire course of conduct and interactions with his codefendants supported the conclusion that he was a participant in a drug operation, and that he assisted the others by acting as a lookout” is at variance with People v Bello (92 NY2d 523 [1998]). (People v Danielson, 9 NY3d 342; People v Crum, 272 NY 348; Tibbs v Florida, 457 US 31; People v Noble, 86 NY2d 814; People

      v Acosta, 80 NY2d 665; People v Steinberg, 79 NY2d 673; Matter of Kadeem W., 5 NY3d 864; People v Mills, 1 NY3d 269; People v Mayo, 36 NY2d 1002; People v Kaplan, 76 NY2d 140.)

      Robert M. Morgenthau, District Attorney, New York City (Patricia Curran and Susan Gliner of counsel), for respondent in the second above-entitled action. The Appellate Division’s findings that the verdict was supported by legally sufficient evidence and was not against the weight of the evidence should remain undisturbed. (People v Gray, 86 NY2d 10; People v Cona, 49 NY2d 26; People v Bynum, 70 NY2d 858; People v Stahl, 53 NY2d 1048; People v Acosta, 80 NY2d 665; People v Tejeda, 73 NY2d 958; People v Contes, 60 NY2d 620; People v Allah, 71 NY2d 830; People v Kennedy, 47 NY2d 196; People v Montanez, 41 NY2d 53.)
   OPINION OF THE COURT

Chief Judge Kaye.

The issue common to these otherwise unrelated criminal appeals is the preservation for this Court’s review of defendants’ challenge to the legal sufficiency of the evidence.

People v Hawkins

On November 27, 2002, at approximately 2:00 p.m., Thomas Gallina called 911 and reported that someone with a hammer was breaking into his home. The operator heard Gallina yell for the intruder to leave and to let go, and then could hear only Gallina’s moaning. When the police arrived shortly thereafter, they found Gallina, alone, on the kitchen floor in a pool of blood with several gruesome head injuries that later resulted in his death.

The police saw tire tracks on the driveway and footprints near various entrances to Gallina’s house, which they later learned were defendant’s. Meanwhile, from a doorway in the house a police investigator collected blood evidence on a swab, “G,” placed it in a box marked “G,” and set it on top of a filing cabinet in the study; police later learned it was defendant’s blood. When the police left the house, the only people remaining there were family members, who cleaned up the broken glass, boarded up a broken window and locked the doors. None of them approached the filing cabinet where the swab was located.

Hours later, the police realized they were missing swab “G” and returned to the house, but it was locked. After obtaining a key from Gallina’s sister and entering the house, an investigator found box “G” behind the filing cabinet, between the cabinet and the wall, took it back with him to the police station and sealed the evidence. At trial, the investigator testified that the box he retrieved had not been opened because, had it been, the box would have been creased or “dog-eared.” The swab was inside the box and appeared unchanged.

A grand jury indicted defendant for depraved indifference murder, felony murder and burglary in the second degree. At the close of trial, defendant moved for an order of dismissal as follows:

“I respectfully submit that the People have failed to prove a prima facie case of Depraved Indifference Murder. Not only have they failed to prove a prima facie case that my client Bryan Hawkins was the perpetrator of the homicide . . . but they failed to prove that Mr. Hawkins acted with Depraved Indifference Murder in that matter.”

After the trial court denied the motion, the jury convicted defendant of all three charged counts. The Appellate Division affirmed, 3-2, concluding that defendant’s legal sufficiency claim was unpreserved and that the People had proved a chain of custody for the blood evidence (48 AD3d 1279 [2008]). One of the dissenting Justices granted leave to appeal, and we affirm.

People v Eduardo

At 5:00 p.m. on April 13, 2005, Detectives Molina and Lansing, Sergeant Goggin, Undercover Officer 7567 and several other officers conducted a buy-and-bust operation in Manhattan. While driving around in an unmarked car, Molina and the undercover officer saw Adam Sanchez sell marihuana to an unidentified buyer on the sidewalk near where they were parked.

After the buyer walked away, the undercover exited the car. Sanchez called out “Weed.” The undercover approached Sanchez asking “What do you have? Dimes?” Sanchez confirmed that he had “dimes,” and the undercover requested two bags. Sanchez gave the undercover two bags of marihuana in exchange for $20 prerecorded buy money. When the undercover asked whether Sanchez was also selling cocaine, he said, “[G]ive me a few minutes.” Sanchez then approached defendant and Freddy Perez, who were standing a few feet away, near a bodega. The undercover pretended to converse with Molina, who observed Sanchez, Perez and defendant talking to one another; Perez walked west, while Sanchez and defendant stayed near the bodega.

During the brief time Perez was out of sight, Molina testified that defendant looked “westbound . . . eastbound . . . north and south.” Perez then returned to the corner, where defendant stood, and placed a small object in the coin slot of a public telephone. Perez spoke to defendant and gestured to Sanchez. Sanchez then removed the object from the coin slot as defendant watched, “looking north and southbound.” Sanchez gave Perez money, walked up to the undercover and handed her a clear bag containing cocaine, and the undercover gave Sanchez $30 in prerecorded buy money. During the cocaine transaction, defendant and Perez waited at the corner for a short time, then the two entered a double-parked van and drove away. Police pulled the van over, arrested defendant and Perez, and separately arrested Sanchez, who had $30 in prerecorded buy money and some marihuana. Laboratory tests proved that the purchase was cocaine.

A grand jury indicted all three defendants for criminal sale of a controlled substance in the third degree. At the close of the People’s case at trial, defendant moved for a trial order of dismissal:

“the court: All right. So you move for a trial order of dismissal on the grounds that the people have failed to make out a prima facie case which is denied.
“[counsel]: Yes.
“the court: The defense rests. You move on the entire case beyond a reasonable doubt?
“[counsel]: Yes. . . .
“[counsel]: Just with respect to the failure of the people to make out a prima facie case, I know your Honor denied the motion. Just for the record essentially this case came down to an officer allegedly observing three people speaking on the street for a few minutes; then the defendant looking up and down the block. That hardly—
“the court: And then taking off with the guys in the car.
“[counsel]: Going with one of them in the car.
“the court: The totality of the picture goes past prima facie. What do look-outs do? They look around. They swirl their necks in and out. They were talking. The three of them obviously are thick. They’re together. He takes off with the guy in the— no, that’s it. More than enough.”

The jury convicted defendant of criminal sale of a controlled substance in the third degree. On defendant’s appeal, the Appellate Division affirmed, holding that defendant’s challenge to the sufficiency of the evidence and constitutional claims were unpreserved, and in any event lacked merit (44 AD3d 371 [2007]). A Judge of this Court granted defendant leave to appeal (10 NY3d 764 [2008]), and we affirm.

Analysis

Preservation—or, more precisely, the lack of preservation— frequently accounts for the disposition of criminal cases in this Court. The issue, therefore, again merits some elaboration, not only to explain the result in the appeals before us but also in the interest of encouraging that a proper record be made in the first instance.

Analysis begins with the State Constitution’s general limitation of the jurisdiction of the Court of Appeals to questions of law (NY Const, art VI, § 3; see People v Belge, 41 NY2d 60, 62 [1976]). Among the kinds of determinations of reversal or modification deemed to be upon the law, the Criminal Procedure Law provides that “evidence adduced at a trial resulting in a judgment was not legally sufficient to establish the defendant’s guilt of an offense of which he was convicted” (CPL 470.15 [4] m.

The Criminal Procedure Law further provides that a question of law arises in a criminal proceeding when

“a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. Such protest need not be in the form of an ‘exception’ but is sufficient if the party made his position with respect to the ruling or instruction known to the court, or if in re[s]ponse to a protest by a party, the court expressly decided the question raised on appeal” (CPL 470.05 [2]).

To preserve for this Court’s review a challenge to the legal sufficiency of a conviction, a defendant must move for a trial order of dismissal, and the argument must be “specifically directed” at the error being urged (People v Gray, 86 NY2d 10, 19 [1995]; People v Hines, 97 NY2d 56, 62 [2001]). As we have repeatedly made clear—and underscore again—general motions simply do not create questions of law for this Court’s review (see People v Finger, 95 NY2d 894, 895 [2000]; People v Bynum, 70 NY2d 858, 859 [1987]; People v Stahl, 53 NY2d 1048 [1981]; People v Cona, 49 NY2d 26, 33 n 2 [1979]).

Sound reasons underlie this preservation requirement. As we stated in Gray, a specific motion brings the claim to the trial court’s attention, alerting all parties in a timely fashion to any alleged deficiency in the evidence, thereby advancing both the truth-seeking purpose of the trial and the goal of swift and final determination of guilt or nonguilt of a defendant (86 NY2d at 20-21). A defendant’s motion for a trial order of dismissal that specifies the alleged infirmity helps to assure that legally insufficient charges will not be submitted for the jury’s consideration, and serves the overall interest in an efficient, effective justice system.

Viewing the preservation requirement in the context of the individual trial, it is defense counsel who is charged with the single-minded, zealous representation of the client and thus, of all the trial participants, it is defense counsel who best knows the argument to be advanced on the client’s behalf. Viewing the preservation requirement systemically, intermediate appellate court review is potentially comprehensive, including not only law questions but also fact issues and the interest of justice. This Court’s second level of review—“to authoritatively declare and settle the law uniformly throughout the state”—is best accomplished when the Court determines legal issues of statewide significance that have first been considered by both the trial and the intermediate appellate court.

Applying these principles to the facts before us, when Hawkins’ counsel objected that the People “failed to prove that Mr. Hawkins acted with Depraved Indifference Murder,” that motion did little more than argue that the People failed to prove the essential elements of depraved indifference murder. The objection could have been directed at either the reckless mens rea element, or the objective circumstances evincing a wanton, depraved indifference to human life, and did not alert the trial court to the argument now being advanced: that defendant acted intentionally, not recklessly, in killing the victim. Defendant did not preserve that legal question for our review.

People v Eduardo presents a different scenario. While defendant Eduardo raised no constitutional claims at trial, his legal sufficiency claim is in fact preserved, as the People now acknowledge. Defendant’s effort to specify his objection was frustrated by the trial judge, who plainly was aware of, and expressly decided, the question raised on appeal (CPL 470.05; People v Prado, 4 NY3d 725, 726 [2004]). The preserved issue, however, lacks merit. While defendant argues that the conviction is legally insufficient because no one heard his conversation with Perez and Sanchez, he never handled money or drugs, and the police recovered neither drugs nor money from him, in evaluating the sufficiency of his conviction, we must view the evidence in a light most favorable to the People. Accordingly, a rational factfinder could have inferred from the evidence that, based on the timing, defendant’s conversation must have been about the drug sale, defendant’s looking around was for the purpose of detecting law enforcement, and that, by leaving the scene with Perez, defendant shared Perez’s intent to sell drugs. Thus, the jury could have concluded beyond a reasonable doubt that defendant aided in the sale and shared a community of purpose with his codefendants to sell cocaine.

As for the remaining issues, Hawkins’ claim that the People failed to establish the chain of custody for the blood swab is likewise meritless. Gaps in the chain of custody may be excused when circumstances provide reasonable assurances of the identity and unchanged condition of the evidence (People v Julian, 41 NY2d 340, 343 [1977]). Such gaps go to the weight of the evidence, not its admissibility. Here, the short time period between collecting and retrieving the lost sample from the home, when combined with a lack of evidence of tampering, was sufficient to establish the necessary foundation. Finally, defendant’s Sandoval objection is unpreserved, as defendant made no objection to the court’s ruling.

Similarly, Eduardo’s contention that the Appellate Division did not correctly perform a weight of the evidence review is without merit.

Accordingly, the orders of the Appellate Division in People v Hawkins and People v Eduardo should be affirmed.

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

In each case: Order affirmed.

      . Exceptions include death penalty appeals and determinations of the Judicial Conduct Commission, where the Court of Appeals has factual review powers (NY Const, art VI, § 3 [a]; § 22 [d]; see also Karger, Powers of the New York Court of Appeals § 1:3, at 10 [3d ed rev]). By contrast to the Court of Appeals, intermediate appellate courts have factual review powers and interest of justice jurisdiction in criminal proceedings (CPL 470.15 [1], [6]).

      . By contrast, a defendant does not have to specifically object to errors that affect the mode of trial proceedings. As we explained in Gray, a mode of proceedings issue
      “goes to the general and over-all procedure of the trial, forbidding alteration of mandated procedural, structural, and process-oriented standards. The examples [of mode of proceedings errors]—changing of the burden of proof, . . . deviation from State constitutionally mandated requirements for an indictment—show that the claimed errors [of legal insufficiency] should not fall within that exception” (86 NY2d at 21-22).
      Legal sufficiency errors affect the substance, not the mode of proceedings, of the trial.

      . Reed v McCord, 160 NY 330, 335 (1899), quoted in Cardozo, Jurisdiction of the Court of Appeals of the State of New York, at 11 (2d ed 1909).


author: Ciparick, J.

text:
    [901 NE2d 737, 873 NYS2d 244]
    The People of the State of New York, Respondent, v Dwight Giles, Appellant.
    Argued October 23, 2008;
    decided December 2, 2008

      POINTS OF COUNSEL

      Susanna De La Pava, New York City, for appellant.
    I. The trial court erred in permitting evidence of two highly prejudicial and irrelevant burglaries without proper limiting instructions. (People v Molineux, 168 NY 264; People v Cook, 42 NY2d 204; People v Allweiss, 48 NY2d 40; People v Alvino, 71 NY2d 233; People v Vails, 43 NY2d 364; People v Till, 87 NY2d 835.) II. Appellant’s sentence of 20 years to life in prison was derived from New York’s unconstitutional discretionary persistent felony statute. (People v Leon, 10 NY3d 122; People v Rawlins, 10 NY3d 136; Apprendi v New Jersey, 530 US 466; People v Rivera, 5 NY3d 61; People v Rosen, 96 NY2d 329; Harris v United States, 536 US 545; Ring v Arizona, 536 US 584; United States v Cotton, 535 US 625; Sattazahn v Pennsylvania, 537 US 101; Blakely v Washington, 542 US 296.)

      Robert M. Morgenthau, District Attorney, New York City (Frank Glaser and Sylvia Wertheimer of counsel), for respondent.
    I. The court properly admitted evidence of the uncharged burglaries. (People v Molineux, 168 NY 264; People v Thomas, 51 NY2d 466; People v Harris, 98 NY2d 452; People v Tonge, 93 NY2d 838; People v Russell, 71 NY2d 1016; People v Hutchinson, 56 NY2d 868; People v Mateo, 2 NY3d 383; People v Alvino, 71 NY2d 233; Matter of Codey [Capital Cities, Am. Broadcasting Corp.], 82 NY2d 521.) II. New York’s discretionary persistent felony offender statutes are not unconstitutional. (Apprendi v New Jersey, 530 US 466; People v Rosen, 96 NY2d 329; United States v Booker, 543 US 220; People v Rivera, 5 NY3d 61; People v Rawlins, 10 NY3d 136; Cunningham v California, 549 US 270.)
   OPINION OF THE COURT

Ciparick, J.

On November 7, 2001, at approximately 1:00 a.m., two New York City police officers patrolling in a marked car in the Upper West Side of Manhattan observed defendant Dwight Giles standing in a doorway of a medical office “poking” at the lock with a pocketknife. When the officers confronted defendant, he fled and was apprehended after a brief chase. In response to an officer’s question as to what he was doing at the door, the record indicates that defendant said, “what door?” After a search of defendant’s person, the police recovered a folding knife, a wallet, a Visa card bearing the name of Frank Ballabio, a Metro-Card and some other items. Inspection of the door and lock revealed fresh scratch marks.

It appears that the Visa card found on defendant had been stolen from Ballabio’s home a week prior to defendant’s arrest and the MetroCard had been purchased with an ATM debit MasterCard that belonged to an individual named Uri Kaufman. The ATM debit card had been stolen from Kaufman’s home during a burglary that occurred approximately six days prior to defendant’s arrest. Defendant was never charged with committing either burglary.

Prior to trial, the defense submitted a written motion seeking to preclude the People from introducing detailed testimony by the victims of the two home burglaries. The defense argued that:

“[i]f the jury were to hear that these cards were each stolen during a burglary, which is the same charge as the top count here, and to hear details of these burglaries—such as the ransacked apartment Mr. Ballabio came home to find, and how Ms. Kaufman awoke in the middle of the night to surprise a man in the act of committing the burglary—‘the court’s limiting instruction to the jury could not cure the prejudicial effect of the objectionable testimony’.”

The People argued that the evidence of the uncharged burglaries was necessary in order to prove the criminal possession of stolen property charges as the prosecution was required to establish that defendant possessed the Visa card and the Metro-Card knowingly and with knowledge that they were stolen or purchased with a stolen card. Although defendant offered to stipulate that the two cards had been stolen, he never offered to stipulate that he knew they were stolen, and on that basis, the People refused to enter into the stipulation. Moreover, the People argued that defendant’s possession of the stolen cards was relevant to prove an element of the attempted burglary— that defendant intended to steal property upon gaining entry into the doctor’s office.

Supreme Court allowed the People to introduce detailed testimony regarding the uncharged burglaries and further provided the following limiting instruction, without telling the jury for what purpose the evidence had been admitted or how it should evaluate it:

“defendant is not charged with either of these two burglaries and there is no evidence that he committed these burglaries. The defendant is also not charged with stealing those cards and there is no evidence that he is the person who stole them and you are not to assume that he committed either of these two burglaries and that’s the instruction I am going to ask you to follow.”

The court later advised the jury that

“you have heard evidence in this case that a credit card belonging to . . . Ballabio and ATM credit card belonging to . . . Kaufman were stolen from each of their homes. The Defendant is not charged with either of these two burglaries and there is no evidence that he committed them.
“The Defendant is also not charged with stealing those cards. There is no evidence that he is the individual who stole them. You are not to assume that he committed either of these burglaries or that he stole either of these two cards.”

Defendant was convicted of attempted burglary in the second (Penal Law §§ 110.00, 140.25 [2]) and third degrees (Penal Law §§ 110.00, 140.20), two counts of criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [2]) and possession of burglar’s tools (Penal Law § 140.35). He was sentenced as a persistent felony offender to concurrent, indeterminate prison terms of 20 years to life imprisonment for each of the four felonies, and a definite, one-year term for possession of burglar’s tools. Defendant appealed and, with two Justices dissenting, the Appellate Division affirmed (47 AD3d 88 [2007]).

Applying People v Molineux (168 NY 264 [1901]), the Appellate Division held that Supreme Court properly admitted evidence of the uncharged burglaries for both the issue of defendant’s knowing possession of the stolen cards and his state of mind while attempting to burglarize the medical office. The dissenters stated that the contested evidence was neither relevant in determining whether defendant, when arrested, knew he was carrying stolen property nor whether he was intent on committing a burglary, and concluded that the evidence was unduly prejudicial. Defendant appeals pursuant to leave granted by a Justice of the Appellate Division. We now modify the order of the Appellate Division by reversing the convictions of attempted burglary in the second and third degrees and possession of burglar’s tools, and remitting to Supreme Court for a new trial on these counts only.

We begin with the proposition that relevant evidence is admissible unless its admission violates some exclusionary rule. “Evidence is relevant if it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence” (People v Scarola, 71 NY2d 769, 777 [1988]). Although evidence of similar uncharged crimes may have some probative value, such evidence may not be offered to show a defendant’s bad character or propensity toward committing crime (People v Lewis, 69 NY2d 321, 325 [1987]; People v Alvino, 71 NY2d 233, 241 [1987]; People v Johnson, 47 NY2d 785, 786 [1979]).

In People v Molineux (168 NY 264 [1901]), we established exceptions to the general rule by allowing evidence of uncharged crimes to be admitted if it helps to establish some element of the crime under consideration or is relevant in order to show, for example, a defendant’s intent, motive, knowledge, common scheme or plan, or identity. However, when “evidence is actually of slight value when compared to the possible prejudice to the accused, it should not be admitted, even though it might technically relate to some fact to be proven” (People v Allweiss, 48 NY2d 40, 47 [1979]).

Here the People asserted that evidence of the uncharged burglaries was admissible to prove defendant’s mens rea with respect to the stolen property charges. They argued that defendant’s knowing possession of stolen property could then be used to show that, when defendant was observed attempting to enter the doctors’ offices, he was presumably doing so with the intent to commit the crime of theft therein. There was no evidence, however, that defendant committed the prior burglaries, and if the evidence as to the uncharged burglaries “has no bearing other than to show that defendant is of a criminal bent or character and thus likely to have committed the crime charged, it is excluded” (People v Dales, 309 NY 97, 101 [1955]).

We therefore conclude that Supreme Court erred by failing to issue a limiting instruction to cure the potential prejudicial effect of the evidence regarding the uncharged burglaries on the attempted burglary and possession of burglar’s tools counts. Supreme Court should have advised the jury that it could consider the evidence for the possession of stolen property counts, but that it could not consider the prior burglaries with respect to the attempted burglary and possession of burglar’s tools counts.

Defendant further argues that his sentence of 20 years to life is unconstitutional and violates his 6th and 14th Amendment rights. Since this matter is being remitted to Supreme Court for a retrial on the charges of attempted burglary in the second and third degrees and possession of burglar’s tools, we need not at this time reach the issue whether the imposition of a persistent felony offender sentence unconstitutionally enhances defendant’s sentence (see Apprendi v New Jersey, 530 US 466 [2000]; People v Rivera, 5 NY3d 61 [2005]). Supreme Court may, however, in the exercise of its discretion, consider resentencing as to the two remaining counts of criminal possession of stolen property in the fourth degree.

Accordingly, the order of the Appellate Division should be modified by remitting to Supreme Court for a new trial on the counts of attempted burglary in the second and third degrees and possession of burglar’s tools, and for resentencing as to the two counts of criminal possession of stolen property in the fourth degree, and as so modified, affirmed.

Chief Judge Kaye and Judges Graffeo, Read, Smith, Pigott and Jones concur.

Order modified by remitting to Supreme Court, New York County, for a new trial on the counts of the indictment charging attempted burglary in the second and third degrees and possession of burglar’s tools and for resentencing on defendant’s conviction of two counts of criminal possession of stolen property in the fourth degree and, as so modified, affirmed.

       Defense counsel requested that a limiting instruction be given contemporaneously with the witnesses’ testimony, and further requested a specific charge that the evidence be admitted solely on the question of the element of “stolen” as to the two criminal possession counts. Both requests were refused.


author: Graffeo, J. Pigott, J.

text:
    [900 NE2d 952, 872 NYS2d 401]
    In the Matter of Enrique Rivera, Respondent, v Neil Jon Firetog, a Justice of the Supreme Court, Kings County, Respondent, and Charles J. Hynes, District Attorney, Kings County, Appellant.
    Argued October 22, 2008;
    decided December 2, 2008

      POINTS OF COUNSEL

      Charles J. Hynes, District Attorney, Brooklyn (Victor Barall and Leonard Joblove of counsel), for appellant.
    The trial court did not abuse its discretion in declaring a mistrial, where the court reasonably concluded that the jury was genuinely deadlocked and that asking the jury whether it had reached a partial verdict might be coercive. (People v Baptiste, 72 NY2d 356; Hall v Potoker, 49 NY2d 501; Matter of Plummer v Rothwax, 63 NY2d 243; United States v DiLapi, 651 F2d 140; Green v United States, 355 US 184; People v Latham, 83 NY2d 233; People v P.J. Video, 68 NY2d 296, 479 US 1091; North Carolina v Pearce, 395 US 711; Arizona v Washington, 434 US 497; Wade v Hunter, 336 US 684.)

      Joel K. Dranove, New York City, for respondent.
    I. This appeal should be dismissed, since the Appellate Division did not expressly or impliedly find new facts, appellant has not raised a substantial question of abuse as a matter of law, and the result reached is not so outrageous as to shock the conscience. (Matter of Enright v Siedlecki, 59 NY2d 195; Glenbriar Co. v Lipsman, 5 NY3d 388; Matter of Von Bulow, 63 NY2d 221.) II. In light of the evidence that the jury had reached a verdict on the murder count, and defense counsel’s repeated requests for an inquiry as to a partial verdict, the trial court’s declaration of a mistrial on that count without any inquiry into the alternative of taking a partial verdict was an improvident exercise of discretion and was not manifestly necessary. (People v Baptiste, 72 NY2d 356; Matter of Rubenfeld v Appelman, 230 AD2d 911; Matter of Zeigler v Morgenthau, 99 AD2d 989, 64 NY2d 932; People v Michael, 48 NY2d 1; Matter of Robles v Bamberger, 219 AD2d 243; People v Hymes, 208 AD2d 355.)

      Fahringer & Dubno, New York City (Herald Price Fahringer and Erica T. Dubno of counsel), for New York State Association of Criminal Defense Lawyers, amicus curiae.
    Where there is evidence that the jurors may have reached a partial verdict, the jurors should be polled before a mistrial, which exposes defendant to double jeopardy, is declared. (Matter of Davis v Brown, 87 NY2d 626; United States v DiFrancesco, 449 US 117; People v Baptiste, 72 NY2d 356; United States v Dolah, 245 F3d 98; Crawford v Washington, 541 US 36; United States v DiLapi, 651 F2d 140; Duncan v Louisiana, 391 US 145.)
   OPINION OF THE COURT

Graffeo, J.

In this CPLR article 78 proceeding, petitioner seeks to bar respondents from retrying him for murder on double jeopardy grounds. Petitioner was previously charged with murder and lesser included manslaughter offenses but his trial on those charges ended with a mistrial based on jury deadlock. The issue here is whether the trial judge abused his discretion when he declared a mistrial without first asking the jury whether it had reached a partial verdict, as requested by defense counsel. Under the circumstances of this case, we hold the trial court did not abuse its discretion and petitioner’s reprosecution for murder is not precluded by double jeopardy principles.

Facts and Procedural History

Petitioner Enrique Rivera was indicted for murder in the second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]) arising from a barroom confrontation that resulted in a stabbing death. After a five-day trial in Supreme Court, the trial judge submitted to the jury the second-degree murder count as well as the lesser included offenses of manslaughter in the first degree (intentional manslaughter—Penal Law § 125.20 [1]) and manslaughter in the second degree (reckless manslaughter—Penal Law § 125.15 [l]). In accordance with People v Helliger (96 NY2d 462 [2001]), the court instructed the jury to consider the first-degree manslaughter count only if it first acquitted Rivera of the murder count and to consider the second-degree manslaughter count only if it found Rivera not guilty of first-degree manslaughter.

During the second day of deliberations, the jury returned a note indicating it could not reach a unanimous verdict and that it was split on Rivera’s guilt. The note did not indicate the count on which the jury disagreed. The court asked the prosecutor and defense counsel whether it should ask about the possibility of a partial verdict, but both sides rejected the offer. Instead, the judge instructed the jury to continue deliberating.

The following day, in response to a jury question, the trial judge reinstructed the jury on all three counts. Later that day, the jury issued another note seeking clarification of the terms “bodily harm” and “reckless action.” Interpreting the note to refer to the two manslaughter counts, the court again read its instructions on those two counts to the jury, with a reminder that the jurors must consider the second-degree manslaughter charge only if they first found Rivera not guilty of first-degree manslaughter. After a brief period of deliberations, the jury sent a second deadlock note. With the consent of the parties, the trial judge gave the jury an Allen charge (see Allen v United States, 164 US 492 [1896]).

On the fourth day of deliberations, the court complied with the jury’s request to provide it with a written copy of all three charges. The jury later returned a note advising that one of the jurors had air travel plans that evening. After discussions with counsel, the court suggested that a question be posed to the jury regarding whether it had reached a verdict on any of the counts. The prosecutor objected, asserting that the jury had given no indication that it had reached a verdict on any of the three counts. Defense counsel countered that there was some indication the jury had progressed past the first count and requested the court to inquire about the possibility of a partial verdict. The judge agreed that there was an inference that the jury may have moved past the top count, but noted that the jury never declared that it had reached a partial verdict. The judge decided not to ask about a partial verdict and the case was adjourned for the weekend.

Deliberations resumed on Monday morning, at which time the jury requested a copy of the “explanation of criteria” for all three charges. The court supplied the requested information. In the afternoon of the sixth day of deliberations, the jury asked again for further clarification regarding all three charges and the court complied. The jury subsequently submitted a third deadlock note, stating that “after five and a half days of much discussion and review of the court exhibits and reading of the court testimonies, opinions remain unchanged and we cannot come to a unanimous decision.” The prosecutor moved for a mistrial and defense counsel requested an inquiry into the possibility of a partial verdict in view of the “extraordinary] amount of time” that the jury had deliberated. In response, the prosecutor asserted that there was no suggestion that the jury had reached a partial verdict because it had repeatedly asked for a copy of all three counts.

The trial court declared a mistrial, declining to ask the jury if it had reached a partial verdict. The court observed that it had no duty to inquire since CPL 310.70 (1) requires the taking of a partial verdict only if the jury “declares” that it has reached a verdict. The court determined that any inquiry at this point “would be suggesting [that] they have to reach at least some form of verdict,” which the court feared could be coercive.

Months later, Rivera filed a written motion to dismiss the indictment on double jeopardy grounds, arguing that the trial court’s refusal to question whether the jury had attained a partial verdict barred retrial. Supreme Court denied the motion.

Rivera then commenced this article 78 proceeding in the nature of prohibition against respondents Neil Jon Firetog, a Justice of the Supreme Court, Kings County, and Charles J. Hynes, District Attorney, Kings County, seeking to prevent a retrial. The Appellate Division, with one Justice dissenting, granted the petition. The majority held that the jury’s note regarding the manslaughter counts constituted “some evidence” that the jury had reached a verdict on the murder count and found that the trial court abused its discretion in declaring a mistrial (44 AD3d 957, 958 [2d Dept 2007]). Although the majority determined that double jeopardy principles prevented Rivera’s retrial on the murder charge, it concluded that he could be retried on the manslaughter counts provided the People represented appropriate charges to another grand jury. The dissenting Justice would have denied the petition, finding that retrial of the murder count was not precluded. We granted the District Attorney leave to appeal (10 NY3d 703 [2008]) and now reverse the judgment of the Appellate Division and dismiss the petition.

Discussion

The District Attorney contends that, under the circumstances of this case, the trial judge providently exercised his discretion in concluding that there was a manifest necessity to declare a mistrial, and that retrying Rivera for murder would therefore not offend the constitutional double jeopardy prohibition. Rivera, joined by amicus New York State Association of Criminal Defense Lawyers, counters that defense counsel’s request for a partial verdict, coupled with the indication that the jury had progressed beyond the murder count based on its request for reinstruction on the manslaughter counts, obligated the trial court to inquire into the possibility of a partial verdict before discharging the jury on deadlock grounds.

The Double Jeopardy Clauses of the State and Federal Constitutions provide that the state may not prosecute a defendant twice for the same offense (see NY Const, art I, § 6; US Const 5th Amend). Because jeopardy attaches when a jury is impaneled and sworn (see CPL 40.30 [1] [b]), the constitutional protection also embraces “the defendant’s right to be free from reprosecution if the first trial has not continued to conclusion” (People v Baptiste, 72 NY2d 356, 359 [1988]; see also Arizona v Washington, 434 US 497, 503 [1978]). As a general principle, the People are entitled to only one opportunity to compel a defendant to stand trial because the “defendant possesses a ‘valued right’ to have his trial completed by a particular tribunal on the first presentation of the evidence” (Baptiste, 72 NY2d at 359-360).

Nevertheless, if the merits of the charges have not been resolved, the right to have a trial completed by a specific tribunal “may be subordinate to the public interest in seeing that a criminal prosecution proceed to verdict” (id. at 360 [internal quotation marks and citations omitted]). In the oft-quoted words of Justice Story, the court may exercise its power to declare a mistrial when, “taking all the circumstances into consideration, there is a manifest necessity for the act” (United States v Perez, 9 Wheat [22 US] 579, 580 [1824]). The classic example of charges that may be retried after the termination of a trial without the defendant’s consent occurs when the trial court discharges a genuinely deadlocked jury (see Baptiste, 72 NY2d at 360). To justify a mistrial on deadlock grounds, it must be “clear that the jury is hopelessly deadlocked and that there is no reasonable probability it can agree” (id.; see also CPL 310.60 [1] [a]).

It is well settled that a trial judge’s determination regarding the declaration of a mistrial on jury deadlock grounds involves the exercise of judicial discretion (see Baptiste, 72 NY2d at 360; Arizona, 434 US at 509 [observing that “in this situation there are especially compelling reasons for allowing the trial judge to exercise broad discretion in deciding whether or not ‘manifest necessity’ justifies a discharge of the jury”]). We have made clear that a trial court’s decision “is entitled to great deference by reviewing courts for it is best situated to take all the circumstances of the particular proceeding into account and determine whether a mistrial is in fact required” (Baptiste, 72 NY2d at 360). Moreover, the failure to accord “great deference” to a trial court’s determination

“might well encourage a needless waste of judicial resources and time by requiring further deliberation of juries that are hopelessly deadlocked and, more drastically, might similarly encourage the employment of untoward pressure upon juries or, simply, their eventual exhaustion to break deadlocks at the risk of unjust verdicts” (Matter of Plummer v Rothwax, 63 NY2d 243, 250 [1984] [internal quotation marks and citations omitted]).

At the same time, trial courts are not free to act without limitation. We have articulated a number of factors that a trial court should consider before exercising discretion, including “the length and complexity of the trial, the length of the deliberations, the extent and nature of the communications between the court and the jury, and the potential effects of requiring further deliberation” (id. at 251). Additionally, reviewing courts will examine whether the trial court “properly explored the appropriate alternatives” (Hall v Potoker, 49 NY2d 501, 505 [1980]).

Applying these principles, we perceive no abuse of discretion in the trial court’s determination to declare a mistrial on the basis of jury deadlock. It is notable that the jury’s deliberations—lasting nearly six days—exceeded the duration of the trial itself. During this period, the jury informed the court on three occasions that it could not reach a unanimous verdict. In response, the court appropriately explored alternatives to a mistrial. After receiving the first deadlock note relatively early in the deliberation process, the trial judge considered the option of asking whether the jury had reached a verdict on any of the counts but, when both parties declined, directed the jury to continue deliberating. With the consent of the parties, the court gave the jury an Allen charge after the second deadlock note. Significantly, after the jury requested clarification of the manslaughter instructions, it sought copies of all three charges at three different junctures, indicating that it may not have resolved a verdict on any of the counts. Finally, the court discharged the panel following the third deadlock note, reasoning that further deliberations would be futile or could lead to a coerced verdict. Under these circumstances, we believe the trial court reasonably determined that there was a manifest necessity to declare a mistrial. Retrial on the indictment for second-degree murder therefore poses no double jeopardy problem.

In finding that the trial court improvidently exercised its discretion by declaring a mistrial on the murder count, the Appellate Division majority relied on Matter of Robles v Bamberger (219 AD2d 243 [1st Dept 1996], lv denied 88 NY2d 809 [1996], appeal dismissed 88 NY2d 962 [1996]). Robles, however, is readily distinguishable. There, the Appellate Division concluded that the trial court erred in declaring a mistrial based on juror disqualification without inquiring into whether the jury had reached a partial verdict, as requested by defense counsel. Significantly, the Appellate Division observed that there was “overwhelming evidence” that the jury had agreed on at least one count, including a note from a juror stating that “[o]ne decision has already been made and agreed by all of us” (id. at 247). Additionally, the trial court’s examination of another juror confirmed that the jury had reached agreement on one of the counts (see id.).

Here, the evidence that the jury had reached a verdict on any of the counts was far less certain. Although the trial judge at one point earlier in the deliberations found that there was an inference that the jury may have progressed past the murder count based on the jury’s manslaughter note, the jury did not clearly indicate that it had in fact reached a partial verdict. Furthermore, the jury subsequently requested reinstruction on all three charges on three separate occasions, a fact the trial court acknowledged when it ultimately denied Rivera’s request to poll the jury about the possibility of a partial verdict.

Finally, Matter of Oliver v Justices of N.Y. Supreme Ct. of N.Y. County (36 NY2d 53 [1974]) does not compel a different result. In Oliver, the petitioner was tried on one count of murder and the lesser included offense of first-degree manslaughter. After receiving the case, the jury alerted the trial judge that it had reached a partial verdict and was instructed to continue deliberating. Later, the jury reported that it was hopelessly deadlocked and the trial court declared a mistrial. At no point did the jury indicate the nature of the partial verdict, nor did defense counsel ever seek clarification or ask for the taking of a partial verdict. The petitioner then commenced an article 78 proceeding seeking to prohibit retrial on double jeopardy grounds, arguing that the first jury was improperly discharged.

This Court in Oliver held that double jeopardy principles did not preclude reprosecution for murder. We acknowledged that the trial court was permitted to refuse to accept the declared partial verdict and direct the jury to continue deliberating under CPL 310.70 (1) (b) (ii), but noted that the trial court’s failure to instruct the jury to resume its deliberation on “the entire case” as required by the statute left open the possibility that the jury may or may not have recognized that it could properly reopen reconsideration of the partial verdict. We therefore determined that the jury’s subsequent declaration that it was deadlocked was ambiguous, because it was unclear whether the jury was deadlocked as to both counts or just one. Because the petitioner never sought to clarify the nature of the partial verdict when it was first announced or the status of the partial verdict when the jury declared itself to be deadlocked, we concluded there was no double jeopardy obstacle to retrial.

Although our decision in Oliver was premised in large part on the petitioner’s failure to inquire into the status of a previously declared partial verdict, we did not suggest that a trial judge must question the jury about the possibility of a partial verdict as a matter of constitutional concern whenever requested by defense counsel. Critically, while the jury in Oliver specifically stated that it had reached a partial verdict (see CPL 310.70), the jury here never made such a declaration. In any event, we have repeatedly stressed that no per se rules or mechanical formulas apply to mistrial determinations (see Baptiste, 72 NY2d at 361; Plummer, 63 NY2d at 250), and we decline to create one in this case (see United States v MacQueen, 596 F2d 76, 82 [2d Cir 1979] [refusing to “adopt a (p)er se rule that a mistrial is improperly declared whenever the trial judge fails to specifically inquire as to the possibility of a partial verdict”]).

Accordingly, the judgment of the Appellate Division should be reversed, without costs, and the petition dismissed.

Pigott, J.

(dissenting). Because I agree with the Appellate Division that the trial judge abused his discretion in declaring a mistrial on all of the counts against defendant without inquiring into a partial verdict, I respectfully dissent.

During the 5V2 days of jury deliberations, the trial judge on two separate occasions indicated that he believed that there was at least an inference given by the jury that it had reached a verdict on the first count of the indictment. On the first occasion, the trial judge on his own initiative asked if either party wanted him to inquire about a partial verdict, stating his belief that it would be appropriate to do so. At that time both parties declined, since it was early in the deliberations and they were likely hoping that the jury would soon reach a complete verdict.

On the fourth day of deliberations, the judge once again asked the parties whether he should inquire into whether the jury had reached a verdict on any count or whether it was still deadlocked. When the prosecutor stated that she believed the jury had not given any indication of a partial verdict, the trial judge disagreed, responding that there was an inference that it had. Despite this, the trial judge refused to grant defense counsel’s request that the jury be asked if it had reached a partial verdict.

Although the majority recognizes that there was some evidence that the jury may have reached a verdict on one of the counts, it nevertheless finds that the trial judge did not abuse his discretion because the jury “did not clearly indicate that it had in fact reached a partial verdict” (see majority op at 508). In other words, short of the jury declaring to the judge that it had reached a partial verdict, as the jury did in Matter of Robles v Bamberger (219 AD2d 243 [1st Dept 1996], lv denied 88 NY2d 809 [1996], appeal dismissed 88 NY2d 962 [1996]), the majority finds no reason for the court to ask about one.

The problem with that reasoning is that the jury was unaware that it could render a partial verdict; and while it is true that juries should neither be encouraged nor discouraged to give a partial verdict, it is clear that they should at least be aware of that option (see United States v Dolah, 245 F3d 98 [2d Cir 2001]). This is particularly true in situations such as the one here, where the jury is struggling and there is some indication that it has reached a verdict on one or more counts of the indictment.

Here, the guidance given to the jury was that it should not report any partial verdict at all. The first note the jury sent indicated that it was unable to come to a unanimous verdict and also contained a “vote” of the jurors’ positions. In response, the trial judge advised the jury that it need not indicate any vote or tally on its notes. By doing so, the judge, in my view, discouraged it from later providing the court with any indication that it had reached a partial verdict. The jury therefore had no guidance whatsoever on what to do if it had in fact reached a verdict on any count of the indictment.

That is not to say that in every case the court must inquire into whether a jury has reached a partial verdict. Rather, trial judges should be encouraged to inform the jury, when appropriate, of the possibility of rendering a partial verdict, particularly in a case such as this, where the jurors had deliberated for a substantial period of time and the trial judge recognized that they may have, indeed, reached a partial verdict.

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

Judgment reversed, etc.

      . The court dismissed the weapon count during trial.

      . We disagree with the dissent’s inference that the trial court discouraged the jury from returning a partial verdict. Although the trial judge informed the jury that it need not “put a tally on the note” in response to the split vote, he did not suggest that the jurors could not reach a unanimous verdict on any of the counts.

      . Rivera does not take issue with the mistrial as to the manslaughter counts.

      . The jury was not given an “acquit-first” instruction, as required by our later decisions in People v Boettcher (69 NY2d 174 [1987]) and People v Helliger (96 NY2d 462 [2001]). Therefore, the jury in Oliver was free to reach a verdict on the manslaughter count without first agreeing on the murder count.


author: Smith, J.

text:
    [901 NE2d 734, 873 NYS2d 241]
    Christine Kopsachilis, Respondent, v 130 East 18 Owners Corp. et al., Appellants.
    Argued October 22, 2008;
    decided December 2, 2008

      POINTS OF COUNSEL

      Gannon, Rosenfarb & Moskowitz, New York City CPeter J. Gannon of counsel), for appellants.
    I. 130 East 18 Owners Corp. did not violate Multiple Dwelling Law § 37. (Abood v Hospital Ambulance Serv., 30 NY2d 295; Rankin v Shanker, 23 NY2d 111; Matter of United Press Assns. v Valente, 308 NY 71; Matter of Hogan v Culkin, 18 NY2d 330; Surace v Hanna, 248 NY 18; Spencer v Myers, 150 NY 269; Gonzalez v Medina, 69 AD2d 14; Martin v Herzog, 228 NY 164; Tedia v Ellman, 280 NY 124; Chrisler v Spencer, 31 AD3d 1124.) II. 130 East 18 Owners Corp. acted reasonably in keeping its building safe in view of all the circumstances. (Basso v Miller, 40 NY2d 233; Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579; Tobin v Grossman, 24 NY2d 609; Goldstein v Consolidated Edison Co. of N.Y., 115 AD2d 34; Peralta v Henriquez, 100 NY2d 139.)

      Segal & Lax, New York City (Patrick Daniel Gatti of counsel), for respondent.
    Defendants violated section 37 of the Multiple Dwelling Law and therefore are liable for negligence per se. (Goldstein v Consolidated Edison Co. of N.Y., 115 AD2d 34; Elliott v City of New York, 95 NY2d 730; Mermelstein v 417 Riverside Drive, 25 AD2d 522; Camacho v Tabak, 18 AD2d 609, 18 NY2d 883; Price v Delaware State Police Fed. Credit Union, 307 F3d 362; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577.)

      Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York City (Vanessa M. Corchia of counsel), for Riverbay Corporation, amicus curiae.
    A landowner does not have a duty to provide artifical illumination during a blackout occasioned by external sources. (Basso v Miller, 40 NY2d 233; Thackeray v Novak, 124 AD2d 946; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222; Church v Callanan Indus., 99 NY2d 104; De Angelis v Lutheran Med. Ctr., 58 NY2d 1053; Peralta v Henriquez, 100 NY2d 139; Rivera v Nelson Realty, LLC, 7 NY3d 530; Stoliker v Crandall, 31 AD2d 682, 25 NY2d 991; Collins v Noss, 258 App Div 101, 283 NY 595; Ellis v Di Chiara, 38 AD2d 780.)
   OPINION OF THE COURT

Smith, J.

Subdivision (2) of Multiple Dwelling Law § 37 requires, as a general rule, that owners of apartment buildings keep lights on all night in certain public areas. The same subdivision says that if a light “becomes extinguished and remains so without the knowledge or consent of the owner he shall not be liable.” Subdivision (3) of the statute makes an exception to the general rule of subdivision (2), requiring lights in windowless areas to “be kept burning continuously.” We hold in this case that the “knowledge or consent” defense created by subdivision (2) may be asserted in a case based on an alleged violation of subdivision (3).

I

The blackout of August 14, 2003 left many commuters stranded in New York City overnight. Plaintiff was one of them, and she stayed that night in the fourth floor apartment of a coworker in a building owned by defendants. The building was not one of those required by the New York City Administrative Code to have lighting connected to an emergency power source (see Administrative Code of City of NY § 27-382). The building did have backup, battery-operated lights, but the batteries lasted no more than 40 minutes. By the time plaintiff arrived at the building on the evening of August 14, the lights were out. The building staff had put flashlights and candles on the staircases, and staff members using flashlights escorted building occupants, including plaintiff and her host, up the fire-stairs.

The lights were still out when plaintiff was ready to leave the building the next morning. Neither she nor her host had a flashlight, and neither called down to the lobby for help. Plaintiff stood in the hallway outside her host’s apartment and opened the door to the fire-stairs, where she could see nothing. She put out her foot to feel for a landing, fell down the stairs and was injured.

Plaintiff brings this negligence action against the building owners. The principal basis for the action, and the only one that requires discussion, is her assertion that defendants were guilty of negligence per se because they violated the requirement of Multiple Dwelling Law § 37 (3) that “[e]very light in every fire-stair . . . shall be kept burning continuously.”

Supreme Court denied defendants’ motion for summary judgment, and the Appellate Division, with two Justices dissenting, affirmed. The Appellate Division concluded that section 37 (3) “does not relieve an owner of responsibility for lights extinguished without its knowledge or consent, but rather commands categorically that every light in a windowless fire-stair ‘shall be kept burning continuously’ ” (Kopsachilis v 130 E. 18 Owners Corp., 43 AD3d 744, 745 [1st Dept 2007]). The dissenters’ view was that the statute did not impose “absolute liability,” and that defendants were entitled to assert a “knowledge or consent” defense (id. at 747).

The Appellate Division granted leave to appeal to this Court, and we now reverse.

II

Multiple Dwelling Law § 37 is best understood by reading its first three subdivisions in full:

“1. In every multiple dwelling the owner shall provide a light or lights, each of at least sixty watts incandescent or twenty watts cool white fluorescent or equivalent illumination, for every vestibule and entrance hall in every public hall, stair, fire-stair and fire-tower on every floor. Said light or lights shall be located as prescribed by the department, but, in every stair, fire-stair or fire-tower, shall be so located that every part thereof shall be lighted.
“2. Except as provided in subdivision three, every such light shall be turned on by the owner at sunset every day and shall not be turned off by the owner until the following sunrise. Every such light shall be kept burning daily from sunset until sunrise, but if it becomes extinguished and remains so without the knowledge or consent of the owner he shall not be liable. The burden shall be upon the owner to show that the light became and remained extinguished without his knowledge or consent.
“3. Every light in every fire-stair and fire-tower at every story, and in every stair and public hall at every story where there is no window opening to the outer air, shall be kept burning continuously except that this provision shall not apply to public halls lighted as provided in subdivision eleven of section two hundred seventeen.”

These three subdivisions are related. The first imposes a requirement that lights be provided in certain places, including “every . . . fire-stair.” Subdivision (2) applies to “every such light”—including the lights in fire-stairs. It states a durational requirement for the turning on of the lights, subject to an exception “as provided in subdivision three.” Subdivision (2) also provides for a defense to an action premised on a violation: if a light “becomes extinguished and remains so without the knowledge or consent of the owner he shall not be liable.” Subdivision (3) states the exception that subdivision (2) refers to: it says that certain of the lights already described, including lights in fire-stairs, “shall be kept burning continuously.”

The “knowledge or consent” defense in subdivision (2) applies to the extinguishment of any lights required by subdivision (1), whether they are required to be on only at night or continuously. This is the most natural reading of the section’s language. The words “[ejxcept as provided in subdivision three” do not modify the knowledge or consent defense—the exception and the defense appear in separate sentences.

The probable intention of the statute’s authors confirms what its text suggests. It seems unlikely that the Legislature meant to make liability dependent on the landlord’s knowledge or consent when a light fails in a windowed hallway during the night, but to impose strict liability when the failure occurs in a windowless area. If the Legislature had intended such a distinction, we would expect it to say so plainly. We therefore read subdivision (3)’s statement that lights in windowless areas “shall be kept burning continuously” as stating an exception to the rule that lights need be on only at night, not as creating a new liability to which there is no defense.

Defendants here obviously did not “consent” to the blackout that darkened the staircase in which plaintiff fell. They therefore have no liability under Multiple Dwelling Law § 37. Because plaintiffs negligence per se theory fails, and because the record otherwise contains no evidence of negligence sufficient to create an issue of fact, plaintiffs complaint must be dismissed.

Accordingly, the order of the Appellate Division should be reversed with costs, defendants’ motion for summary judgment dismissing the complaint granted, and the certified question answered in the negative.

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

Order reversed, etc.