text:
    [65 NE3d 51, 42 NYS3d 80]
    The People of the State of New York, Respondent, v Lerio Guerrero, Appellant.
    Argued September 8, 2016;
    decided October 27, 2016

      POINTS OF COUNSEL

      Glenn A. Garber, P.C., New York City (Glenn A. Garber of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (.Matan-cha Chanda and David M. Cohn of counsel), for respondent.
   OPINION OF THE COURT

Pigott, J.

The primary issue on this appeal is whether defendant, by pleading guilty to all of the counts of an amended indictment, forfeited his right to challenge the legal sufficiency of the so-called “DNA indictment” and the subsequent amendment that added only his name to that indictment. We hold that defendant, by pleading guilty, forfeited his right to challenge both the underlying “DNA indictment” and the amended indictment that named him.

L

On November 8, 1998, a man attacked a woman as she was entering her apartment. The man held a piece of broken glass to the victim’s throat, cutting himself and leaving blood on the victim’s coat. He forced the victim into her apartment, where he sexually assaulted her and stole her wallet. He then took her to an ATM and forced her to withdraw money. The victim escaped and was transported to a hospital where a rape kit was prepared. In addition to recovering the man’s blood from the victim’s coat, investigators also recovered a “joint” impression from the ATM receipt. Although 16 latent fingerprints were recovered from the crime scene, only six were deemed “usable.”

As part of the ensuing investigation, in addition to recovering the usable fingerprints and entering them in the state fingerprint identification system (but uncovering no match), investigators processed the crime scene, canvassed the apartment building for potential witnesses, obtained video surveillance footage from the ATM, distributed it to the press for release to the public, and had the victim review mug shots and do a sketch with a New York City Police Department sketch artist. Although the police could not locate or identify the perpetrator, they were able to isolate the perpetrator’s DNA profile from the rape kit. In July 1999, investigators deemed the case “closed” because all leads had been exhausted.

On April 13, 2005, a New York County grand jury, utilizing the perpetrator’s DNA profile as an identifier, charged the perpetrator by “DNA indictment” (under the name “John Doe”) with one count of rape in the first degree (Penal Law § 130.35 [1]), two counts of sodomy in the first degree (Penal Law § 130.50 [1]), burglary in the first degree (Penal Law § 140.30 [3]), two counts of robbery in the first degree (Penal Law § 160.15 [3]), and attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [3]).

As part of the grand jury presentation, in addition to presenting the testimony of the victim, the People called an expert in DNA analysis. That expert, who worked for the Office of the Chief Medical Examiner (OCME), testified that the DNA profile developed from the rape kit matched the DNA profile taken from the blood found on the victim’s coat. The expert also testified that the chances that the perpetrator and another person shared the same DNA profile were less than a trillion to one.

In May 2011, while questioning defendant concerning an unrelated rape in Brooklyn, investigators recovered defendant’s DNA from a cigarette butt. That evidence was sent to OCME, which determined that the DNA profile taken from the cigarette butt matched the profile taken from the evidence obtained in the instant rape case. Investigators also matched the joint impression taken from the ATM receipt to the joint on defendant’s right index finger.

On June 9, 2011, the People moved, on notice to defendant, to amend the April 13, 2005 indictment to add defendant’s name to the caption. As bases for the amendment, the People explained that (1) a detective for the Manhattan Special Victims Squad had spoken with a detective with the Brooklyn Special Victims Squad, and learned that defendant had smoked a cigarette in the latter detective’s office and that detective had vouchered the cigarette butt and sent it to the OCME Forensic Biology laboratory; (2) the assistant director of the OCME Forensic Biology laboratory determined that the DNA profile from the cigarette butt matched the DNA profile taken from the rape kit and victim’s coat; and (3) the detective for the Manhattan Special Victims Squad had spoken with a detective from the Latent Print Unit, who compared defendant’s joint impression to the impression left on the ATM receipt and determined that they matched. Defendant was arrested on June 10, 2011 and arraigned on the DNA indictment.

Defendant thereafter filed an omnibus motion seeking, among other things, an order denying the People’s motion to amend the indictment (CPL 210.20, 210.25 [defective indictment]) and dismissing the DNA indictment on the grounds that its prosecution was untimely (CPL 30.10 [statute of limitations], 210.20 [1] [f]) and was violative of defendant’s right to a speedy trial (CPL 30.20 [1]; 30.30 [1] [a]; 210.20 [1] [g]). As relevant here, defendant claimed that the DNA indictment was legally insufficient to establish the identity of the perpetrator and that the 2005 grand jury presentation lacked “competent testimonial and scientific evidence” to link the DNA profile to him. In addition, defendant argued that the People’s motion to amend the indictment contained “double hearsay” relative to the recovery of the cigarette butt and the matching of the fingerprint to the ATM receipt, and “hearsay” relative to the DNA match of the cigarette butt with the rape kit and victim’s coat. The People opposed those parts of the omnibus motion seeking dismissal of the DNA indictment and denial of the motion to amend.

Supreme Court denied defendant’s motion to dismiss the DNA indictment as defective and in violation of defendant’s right to a speedy trial, and upheld the amendment of the indictment. The court held that the prosecution was not time-barred on speedy trial grounds because investigators had exercised “reasonable diligence” in attempting to locate defendant. Defendant then pleaded guilty to each count in the amended indictment. As a condition of the plea, he also executed a written waiver of his right to appeal. Supreme Court sentenced defendant as promised to a 15-year prison term on each count (to run concurrently), with five years’ postrelease supervision.

In affirming Supreme Court, the Appellate Division held that defendant was not deprived of his constitutional right to a speedy trial, and that defendant’s arguments concerning the DNA indictment, amended indictment and statute of limitations were forfeited by his guilty plea and “foreclosed by his valid waiver of the right to appeal” (126 AD3d 613, 613-614 [1st Dept 2015]). A Judge of this Court granted defendant leave to appeal (25 NY3d 1202 [2015]), and we now affirm.

I—I

Defendant does not challenge the voluntariness of his plea, nor does he claim that the DNA indictment or amended indictment failed to provide adequate notice of the charges. Rather, defendant contends that the DNA indictment was not based upon legally sufficient evidence establishing his identity as the perpetrator, and that the indictment was improperly amended by reliance on hearsay statements. Specifically, defendant argues that the evidence submitted in support of the amended indictment should have been presented through live, nonhear-say testimony before a grand jury so the grand jury had an opportunity to assess the evidence in determining whether defendant matched the DNA profile and make a determination as to whether defendant should be indicted. Essentially, defendant argues that the identification of the perpetrator is an essential element of proof that must be established before a grand jury, and that the procedure employed here deprived defendant of his fundamental constitutional right to be prosecuted by indictment for a felony offense, which, according to defendant, is jurisdictional in nature.

Generally, a guilty plea marks the end of a criminal matter as opposed to providing a gateway to further litigation (see People v Hansen, 95 NY2d 227, 230 [2000], citing People v Taylor, 65 NY2d 1, 5 [1985]). Certain matters will survive a guilty plea, however, such as those involving “jurisdictional defects” (People v Iannone, 45 NY2d 589, 600 [1978]) or “rights of a constitutional dimension that go to the very heart of the process” (Hansen, 95 NY2d at 230). “The distinction between jurisdictional and nonjurisdictional defects ‘is between defects implicating the integrity of the process . . . and less fundamental flaws, such as evidentiary or technical matters’ ” (People v Dreyden, 15 NY3d 100, 103 [2010], quoting Hansen, 95 NY2d at 231).

A jurisdictional defect in an indictment may not be waived by a guilty plea and can be raised for the first time on appeal (see Iannone, 45 NY2d at 600; People v Scott, 3 NY2d 148 [1957]). “An indictment is rendered jurisdictionally defective only if it does not charge the defendant with the commission of a particular crime, by, for example, failing to allege every material element of the crime charged, or alleging acts that do not equal a crime at all” (Hansen, 95 NY2d at 231, citing Iannone, 45 NY2d at 600).

Before a person accused of a felony is required to defend against that charge, the People must first persuade a grand jury that there are “sufficient legal reasons ... to believe the person guilty” (Hansen, 95 NY2d at 231 [citation omitted]). CPL 190.65 (1) provides, in relevant part, that “a grand jury may indict a person for an offense when (a) the evidence before it is legally sufficient to establish that such person committed such offense . . . and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense.”

Insufficiency of an indictment’s factual allegations, however, does not constitute a jurisdictional defect that is reviewable by this Court (see Iannone, 45 NY2d at 600-601, citing People v Soto, 44 NY2d 683, 684 [1978]), and, once a guilty plea has been entered, “the sufficiency of the evidence before the Grand Jury cannot be challenged” (Hansen, 95 NY2d at 233 [citation omitted]). Thus, “ ‘[a] guilty plea generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings’ ” (People v Konieczny, 2 NY3d 569, 572 [2004], quoting People v Fernandez, 67 NY2d 686, 688 [1986]).

Here, the DNA indictment properly charged a person with acts that constitute a crime, albeit identifying the individual by a unique DNA profile rather than by his name. As such, it avoided the jurisdictional infirmities we mentioned in Iannone. Defendant’s challenge to the legal sufficiency of the DNA indictment is based on the failure to identify him as the perpetrator by name, but this alleged defect is not a jurisdictional one, and therefore, does not survive his guilty plea. By pleading guilty, defendant acknowledged that he was the person who committed the offense. Defendant therefore forfeited his challenge and is foreclosed from raising the issue on appeal. Once defendant pleaded guilty, his “ ‘conviction rest[ed] directly on the sufficiency of his plea, not on the legal or constitutional sufficiency of any proceedings which might have led to his conviction after trial’ ” (Hansen, 95 NY2d at 230, quoting People v Di Raffaele, 55 NY2d 234, 240 [1982]).

I—I

Defendant next claims that his challenge to the amended indictment based on the hearsay grounds survived his guilty plea. We disagree.

The People’s motion to amend requested that the DNA indictment be amended to only reflect defendant’s name. In support of that motion, the People presented certain hearsay statements that, among other things, linked the DNA profile contained in the DNA indictment to DNA developed from a cigarette butt smoked by defendant. But, by pleading guilty to the amended indictment, defendant forfeited the argument that the People improperly utilized the hearsay statements to link defendant’s DNA to the DNA profile contained in the DNA indictment (see Hansen, 95 NY2d at 231-232; see e.g. People v McGuire, 122 AD3d 947, 947 [2d Dept 2014], lv denied 26 NY3d 969 [2015]; People v McKinney, 122 AD3d 1083, 1083 [3d Dept 2014], lv denied 25 NY3d 1167 [2015]; People v Torres, 117 AD3d 1497, 1498 [4th Dept 2014], lv denied 24 NY3d 963 [2014]). The amendment simply added defendant’s name to the indictment, so that it was listed along with his DNA profile (see People v Bogdanoff, 254 NY 16, 29 [1930]). As such, defendant’s hearsay challenges to the amended indictment are non-jurisdictional in nature and also did not survive defendant’s guilty plea or appeal waiver.

IV.

Finally, although defendant’s constitutional speedy trial argument survived defendant’s guilty plea and appeal waiver (see People v Blakley, 34 NY2d 311, 314 [1974]), we affirm the Appellate Division’s determination that there was no constitutional violation (see People v Taranovich, 37 NY2d 442 [1975]).

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

Rivera, J.

(dissenting). Defendant Lerio Guerrero claims he was deprived of his constitutional right to indictment by a grand jury when the People failed to present that accusatory body with the evidence matching his DNA to the genetic numerical identifier in the caption of the original indictment. Since a grand jury has never accused defendant specifically of the crime for which he stands convicted, and the amended indictment that substituted his name for the DNA profile of the unknown perpetrator was not the product of a grand jury’s deliberative process, defendant’s conviction must be reversed and the indictment dismissed.

The facts and relevant procedural history of this appeal are not in dispute. Shortly before the statute of limitations expired, the People obtained a grand jury indictment charging an unknown perpetrator for crimes arising from a sexual assault and robbery. The police investigation had proved unsuccessful in identifying a person responsible for the crimes charged, and, based on samples from the rape kit, the caption referred to the perpetrator as a “John Doe,” with a DNA profile consisting of a 14-row genetic numerical identifier.

Years later, after police obtained a sample of defendant’s DNA during the course of an unrelated investigation, the People moved to amend the indictment upon presentation of double hearsay evidence, asserting that defendant’s DNA matched the genetic numerical identifier. A judge granted the motion. Defendant unsuccessfully moved to dismiss the indictment based, in part, on the People’s failure to present the linking evidence to the grand jury. Thereafter, defendant pleaded guilty to the crimes charged in the amended indictment. On appeal to this Court he renews his claim that the indictment is defective and asserts that his guilty plea does not bar this Court’s review. Defendant is correct on both points.

The State Constitution expressly provides for indictment by a grand jury before an individual may be tried for an infamous crime (NY Const, art I, § 6; see also People v Iannone, 45 NY2d 589, 593 n 3 [1978]). This requirement is “intended to prevent the people of this State from potentially oppressive excesses by the agents of the government in the exercise of the prosecuto-rial authority vested in the State” (Iannone, 45 NY2d at 594 [citation omitted]). “Thus, before an individual may be publicly accused of crime and put to the onerous task of defending himself from such accusations, the State must convince a Grand Jury composed of the accused’s peers that there exists sufficient evidence and legal reason to believe the accused guilty” {id.). As the constitutional “check” on the prosecutorial power of the State and in its accusatory role, the grand jury “remains the exclusive judge of the facts with respect to any matter before it” (People v Pelchat, 62 NY2d 97, 105 [1984]).

A defendant who pleads guilty may assert challenges on appeal that “relate either to jurisdictional matters . . . or to rights of a constitutional dimension that go to the very heart of the process” (People v Hansen, 95 NY2d 227, 230 [2000] [emphasis added]). Here, defendant’s challenge is constitutional in nature because his claim is grounded in the “fundamental right” to have a grand jury of his peers determine whether evidence and legal reason support the charges against him (Iannone, 45 NY2d at 593). Specifically, he argues that the indictment is defective because the People did not present the linking DNA evidence to the grand jury for it to consider whether to charge him as the person matching the DNA profile.

Contrary to the majority’s view, this is not a nonjurisdic-tional challenge to the sufficiency of the indictment (majority op at 116-117). Defendant neither claims that the evidence is quantitatively deficient, nor asserts a technical error as to form, both of which are arguments foreclosed by his plea (see Hansen, 95 NY2d at 231 [explaining that “evidentiary or technical matters” do not survive a guilty plea and arguments about the sufficiency of the evidence presented to the grand jury are foreclosed]).

Rather, he claims that substitution of his name for the DNA numerical identifier requires the exercise of the grand jury’s accusatory power and cannot be accomplished on submission to the trial court by a motion to amend. The defect concerns who may accuse defendant based on evidence of a match to the inculpatory DNA, and therefore goes to the essential role of the grand jury and the “integrity of the process” (id.).

This distinction is critical because while a challenge to the sufficiency of the indictment qua document is forfeited by a defendant’s plea, a challenge to the indictment as the embodiment of the grand jury deliberative process may be raised on appeal. In Iannone, this Court held that “the basic essential function of an indictment qua document is simply to notify the defendant of the crime of which he stands indicted” so that the defendant may prepare a defense (45 NY2d at 598). Defendant’s claim does not center on the notification purpose of the indictment, but on the essential accusatory role of the grand jury within the criminal justice system. That role requires that the grand jury indict him specifically, if persuaded by the People’s DNA linking evidence (People v Calbud, Inc., 49 NY2d 389, 394 [1980] [“The primary function of the Grand Jury in our system is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution”]).

The People argue that defendant forfeited his claim because the grand jury did in fact decide to indict the person with the DNA numerical sequence identifier as set forth in the indictment caption. While the grand jury may have indicted an unknown person with a genetic descriptor, the indictment and amended indictment do not constitute a grand jury accusation of him specifically because the grand jury never considered whether the DNA evidence matched defendant.

Turning to the merits, this is not a typical change of name by which one moniker is replaced with another. First, the DNA profile consisting of 14 rows of numbers and letters is not commonly understood as a person’s “name.” Second, despite the People’s attempt to minimize the task-at-hand as simply ministerial in nature, more was required than the exchange of a known person’s name for an alphanumeric descriptor. As illustrated by the record and the People’s hearsay evidence, the amendment process was complex; it required untainted collection of defendant’s DNA and preservation of the chain of custody, as well as genetic testing and the scientific assessment and opinion-based comparison of DNA samples.

Also unpersuasive is the People’s argument that substitution of defendant’s name is a technical change within the meaning of CPL 200.70 (1). This provision allows for amendment of the indictment

“[a]t any time before or during trial, . . . with notice to the defendant and opportunity to be heard, . . . with respect to defects, errors or variances from the proof relating to matters of form, time, place, names of persons and the like, when such an amendment does not change the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed such indictment, or otherwise tend to prejudice the defendant on the merits.”

However, the statute does not apply to DNA indictments because substitution of a person’s name for a genetic numerical sequence is not error correction. Indeed, the People have never taken the position, nor could they, that the DNA sequence presented to the grand jury is defective or mistaken. They do not argue that there is a variance from proof relating to defendant’s name because, of course, there was no proof of his name in the indictment originally presented to the grand jury. This is understandable because in the DNA indictment context, name substitution is not mere error correction, intended to cure a misspelling or a misunderstanding about a person’s legal name.

Given the nature of changing a name in the DNA indictment context, the People’s interpretation of CPL 200.70 (1) is also not in accord with its legislative purpose to change the strict common-law rule that forbade even minor changes to an indictment (People v Perez, 83 NY2d 269, 273-276 [1994] [explaining that the legislature passed CPL 200.70 in response to this Court’s decision in People v Van Every (222 NY 74 [1917]), which dismissed an indictment for legal impossibility because it stated that the crime occurred on a future date]). Unlike an incorrect name or alias, which constitutes a defect or clerical error in an indictment, the substitution of a human being’s name for a genetic alphanumerical sequence requires establishing the scientifically acceptable link between the DNA obtained from the crime and a defendant’s DNA.

Furthermore, the People assert that our case law characterizes a name change on an indictment as a mere technicality, but a close reading of the cited authority reveals that the cited case was about the modern approach to the indictment process. Specifically, the People cite People v Bogdanoff to support their proposition that a name change is a technicality, but Bogdanoff, decided in 1930, upheld the legality of simplified indictments and clarified that the legal formalism of common-law indictments was no longer relevant (254 NY 16, 32 [1930]; see also Iannone, 45 NY2d at 597 [interpreting Bogdanoff in this manner]). In Bogdanoff, the defendants attempted to challenge an indictment as being too ambiguous in its description of the crime, and the Court held that the bill of particulars could be used to interpret the indictment (id. at 25). The Court made reference to “fictitious or erroneous names” only as an example of the liberalization of the indictment process, and in this context recognized that “error in description or name may be corrected or disregarded” (id. at 29). The Court’s move away from the highly technical formalities of the past does not permit removal from the grand jury of its essential function as an accusatory body.

Close examination of this case exposes that the People’s argument has no basis in our jurisprudence. Rather, Bogdanoff merely upheld the liberalization and simplification of indictments by use of a bill of particulars showing “that an accusation of crime . . . was intended and calculated to describe the crime for which the accused is held” (254 NY at 30-31). This is easily distinguishable from what the People seek to do in this appeal. Additionally, Bogdanoff was decided before the discovery of DNA and the application of scientific advancements that allow the People to identify a perpetrator based on a genetically and biologically-based numerical sequence. This case is not appropriate guidance or binding precedent on the issue presented on this appeal.

The fact is that the perpetrator was not known and the People never presented the grand jury with any name—fictitious or otherwise—but with a scientific method for identifying the alleged perpetrator. There is no doubt about the crime charged or that the DNA presented to the grand jury is alleged to belong to the perpetrator. No extraneous evidence is necessary to clarify the meaning of the grand jury’s words. Instead, the grand jury simply never accused defendant as the person linked to the DNA of the perpetrator.

There are also policy reasons to reject the People’s argument that substitution of a name for a DNA profile does not require grand jury involvement. The People secured the DNA indictment fully aware that in order to prosecute a suspect identified in the future, a name would have to be substituted for the DNA profile, and this would require presenting DNA evidence establishing a link between a named human being and the crime. If, prior to 2005, law enforcement had matched defendant’s DNA to the DNA from the rape kit, the People would have presented the evidence at that time to the grand jury. Allowing the People to amend the indictment once the necessary DNA evidence was discovered years later, without submission to the grand jury, perverts the intended purpose of CPL 200.70 to address insignificant changes to the indictment and thereby avoid dismissals due to technical defects (see Perez, 83 NY2d at 276). It also undermines the purpose of the grand jury to “prevent the people . . . from potentially oppressive excesses ... in the exercise of the prosecutorial authority vested in the State” (Iannone, 45 NY2d at 594).

To the extent the People suggest that defendant may challenge the linking evidence at trial, this ignores the reality that cases are overwhelmingly resolved by pleas, which is further reason to reaffirm a defendant’s right to the grand jury’s consideration of the evidence linking him to the crime. For example, “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas” (Missouri v Frye, 566 US —, —, 132 S Ct 1399, 1407 [2012], citing Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online, table 5.22.2009). The numbers speak for themselves and make plain that the vast majority of defendants will never go to trial, and therefore lose the chance to challenge the DNA evidence before a jury of their peers. Yet, DNA evidence is an extremely potent tool for the People (People v Wright, 25 NY3d 769, 783 [2015]). “The persuasiveness of DNA evidence is so great that . . . ‘[w]hen DNA evidence is introduced against an accused at trial, the prosecutor’s case can take on an aura of invincibility’ ” {id. [citation omitted]). With such high stakes, it is even more important to preserve the grand jury’s role as a check against prosecutorial abuse.

The practical impact of requiring the People to present the DNA linkage evidence to a grand jury in cases involving DNA indictments is limited, and the law already provides a mechanism to address these situations. The People may obtain a superceding indictment that relates back to the earlier indictment (People v Lomax, 50 NY2d 351, 356 [1980]; People v Sinistaj, 67 NY2d 236, 237 [1986]). Additionally, if dismissal of the indictment is required, the People may re-present to another grand jury (Lomax, 50 NY2d at 356). Though a holding in favor of a defendant will sometimes require additional action by the People, this should not impact our analysis. Arguments about “the waste of prosecutorial resources that will result from requiring a superseding indictment” have merit but are “policy considerations [that] must be addressed by the Legislature, however, not the courts” (Perez, 83 NY2d at 276).

For these reasons, the People failed to present the grand jury with the only evidence linking defendant to the alleged perpetrator’s DNA, depriving him of his fundamental right to grand jury indictment. His conviction should be reversed and the indictment dismissed.

Chief Judge DiFiore and Judges Abdus-Salaam, Stein, Fahey and Garcia concur; Judge Rivera dissents in an opinion.

Order affirmed.

      . A “DNA indictment” is one that identifies the defendant by his or her DNA profile as opposed to by name.

      . Defendant successfully sought reargument of Supreme Court’s ruling relative to the amended indictment and the statute of limitations determination. Upon reargument, Supreme Court denied defendant’s motion except as to the issue whether investigators exercised “reasonable diligence” in their attempt to identify defendant. Before a hearing on that issue was held, however, the People successfully moved for reconsideration of Supreme Court’s reargument order, with Supreme Court holding that the People had submitted additional evidence establishing that investigators had in fact exercised reasonable diligence, such that a hearing was unnecessary.

      . Defendant makes the additional argument that his prosecution for rape in the first degree was untimely under the five-year statute of limitations that was in effect at the time. We have held, however, that “[t]he statute of limitations under CPL 30.10 is not a jurisdictional matter, nor is it a right of constitutional dimension” that survives a guilty plea (People v Parilla, 8 NY3d 654, 659 [2007]). As such, defendant’s statute of limitations argument is not properly before us.

      . Defendant never denied that he was the perpetrator, merely asserting the evidentiary hearsay issue.

      . Given my conclusion that the conviction must be overturned and the indictment dismissed as constitutionally defective, I take no position on the majority’s resolution of defendant’s remaining claims.

      . The opportunity for a defendant to waive indictment by grand jury upon consent of the district attorney is not at issue on this appeal (see NY Const, art I, § 6).

      . The same is true of the cases cited in the Bogdanoff decision. First, in People v Seidenshner (210 NY 341 [1914]), the codefendants argued that their criminal aliases should not be included in the indictment because they would prejudice the jury, but the Court held that both their true names and criminal aliases could properly be included in the indictment. Second, in People v Johnson (104 NY 213 [1887]), the name of the victim was missing from the indictment, and the defendant argued that this was an essential element of the crime such that the indictment was insufficient to charge him with a crime. However, the Court held that the victim’s name need not be included in the indictment (id. at 217). Lastly, in United States ex rel. Mouquin v Hecht (22 F2d 264, 265 [2d Cir 1927]), the Second Circuit held that an indictment charging “Louis A. Mouquin” need not be corrected, even though the defendant’s true name was “Louis C. Mouquin.” Though this case is nearest to the rule urged by the People here, it still misses the mark because the case refers to a minor change to the name of a known defendant. Taken together, these cases illustrate that the authority upon which the People’s argument is built does not support its conclusion and is easily distinguishable from the facts presented here.


source: Caselaw Access Project

author: Abdus-Salaam, J.

license: Public Domain

text:
    [65 NE3d 675, 42 NYS3d 646]
    The People of the State of New York, Respondent, v Antonio Aragon, Appellant.
    Argued September 7, 2016;
    decided November 1, 2016

      POINTS OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, New York City (.Harold V. Ferguson, Jr. of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Philip

      Morrow and Alan Gadlin of counsel), for respondent.
   OPINION OF THE COURT

Abdus-Salaam, J.

This appeal presents the issue of whether the accusatory instrument alleging that defendant unlawfully possessed “brass metal knuckles” was facially sufficient. We agree with the Appellate Term that the accusatory instrument is facially sufficient.

Penal Law § 265.01 (1) lists a number of per se weapons, the mere possession of which renders a person guilty of criminal possession of a weapon in the fourth degree. The relevant weapon here, metal knuckles, is included in that list. Defendant was charged with violating Penal Law § 265.01 (1). In particular, the accusatory instrument stated that the police officer who stopped him “recovered one set of brass metal knuckles from defendant’s right front pants pocket.” Defendant moved to dismiss the complaint on the ground that the accusatory instrument was facially insufficient, contending that it merely asserted an ultimate conclusion without indicating the underlying factual basis for that conclusion or any supporting evidence for it. Criminal Court denied defendant’s motion. Defendant then agreed to plead guilty to disorderly conduct, waiving prosecution by information and formal allocution. On appeal, defendant again argued that the accusatory instrument was facially insufficient. The Appellate Term affirmed, holding that the factual allegations in the accusatory instrument were “sufficiently evidentiary in character to establish reasonable cause to believe that defendant was guilty of the charged offense,” noting that it provided defendant with “ ‘adequate notice to enable [him] to prepare a defense and invoke his protection against double jeopardy’ ” (44 Misc 3d 140[A], 2014 NY Slip Op 51281 [U], *1 [2014]).

As an initial matter, because defendant waived prosecution by information, the standard applicable to his challenge to the accusatory instrument is that of a misdemeanor complaint (see CPL 170.65 [3]; People v Dumay, 23 NY3d 518, 522-524 [2014]). Criminal Procedure Law § 100.15 (3) provides that the factual part of a misdemeanor complaint “must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges.” The complaint must also “provide reasonable cause to believe that the defendant committed the offense charged” (GPL 100.40 [4] [b]; see People v Dumas, 68 NY2d 729, 731 [1986]). “[A]n accusatory instrument must be given a reasonable, not overly technical reading” (People v Konieczny, 2 NY3d 569, 576 [2004]). Thus, the test for facial sufficiency “is, simply, whether the accusatory instrument failed to supply defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” (People v Dreyden, 15 NY3d 100, 103 [2010]).

Several of the per se weapons listed in Penal Law § 265.01 (1) are defined in Penal Law § 265.00; however, the Penal Law provides no definition for “metal knuckles.” In such a circumstance, courts should give the term its “usual and commonly understood meaning” (McKinney’s Cons Laws of NY, Book 1, Statutes § 232; People v Morales, 20 NY3d 240, 247 [2012]). In arriving at the “most natural and obvious meaning” of a term (id.), we have looked to dictionary definitions (see e.g. People v Keyes, 75 NY2d 343, 348 [1990] [referencing the Webster’s Dictionary definition of the term “procure” to interpret a Penal Law provision, where that term was undefined by the statute]). Black’s Law Dictionary does not define “metal knuckles,” but does define “brass knuckles” as “[a] piece of metal designed to fit over the fingers as a weapon for use in a fistfight” (Black’s Law Dictionary 225 [10th ed 2014]). In general, metal knuckles have a common meaning in ordinary American parlance, which corresponds to the dictionary definition. In fact, in People v Persce, this Court stated that along with the slungshot at issue there, metal knuckles have a “well-understood character” (204 NY 397, 402 [1912]). The term “brass knuckles,” or “metal knuckles,” describes a metal object with multiple holes, through which an individual places his or her fingers so that a metal bar rests atop the individual’s knuckles. That object is used as a weapon to cause increased pain when the person wearing it hits someone with a fist.

In support of his claim that the accusatory instrument was insufficient, defendant points to the use of “brass knuckles” on jewelry pieces, cell phone cases, luggage tags, and other novelty items. That argument, however, is meritless when considered in the. context of facial sufficiency of an instrument charging an individual with criminal possession of a per se weapon listed in Penal Law § 265.01 (1). The items referenced by defendant are not the type of objects that are punishable as per se weapons, to the extent that they are not capable of being worn and used as weapons.

“[A] reasonable, not overly technical reading” of the accusatory instrument here satisfies our sufficiency standard (Konieczny, 2 NY3d at 576), as it supplied “defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” (Dreyden, 15 NY3d at 103). The accusatory instrument clearly informed defendant that he was in criminal possession of “brass metal knuckles,” a per se weapon, in violation of Penal Law § 265.01 (1). The term “brass metal knuckles” gave defendant a clear description of the object recovered from his pocket at a specific time and place. Under the common and natural definition of the term, as well as the dictionary definition, defendant was adequately informed of the charge against him.

Finally, citing Dreyden, where we stated that “[a]n arresting officer should, at the very least, explain briefly, with reference to his training and experience, how he or she formed the belief that the object observed in defendant’s possession was a” gravity knife (15 NY3d at 104), defendant argues that the accusatory instrument here is likewise invalid because it failed to cite to the officer’s training and experience in identifying brass knuckles. Dreyden, like our more recent decision in People v Sans (26 NY3d 13 [2015]), dealt with a gravity knife, a knife which by its statutory definition must be opened and remain open in a particular manner for it to be considered a per se weapon (see Penal Law § 265.00 [5]). We explained in Sans that

“[w]e do not mandate that an officer recite that he or she has training and experience in identifying gravity knives or expressly state the origin of his or her skills in that area. Rather, Dreyden requires that an arresting officer explain the basis of his or her conclusion that the defendant’s knife was a gravity knife. The general principle applicable here is that when an allegation involves a conclusion drawn by a police officer that involves the exercise of professional skill or experience, some explanation concerning the basis for that conclusion must be evident from the accusatory instrument” (Sans, 26 NY3d at 17-18 [internal quotation marks omitted]).

We concluded that the accusatory instrument sufficiently pleaded that the police officer exercised his expertise by testing the knife and determining that it opened and locked in the manner proscribed by the statute defining gravity knife.

In contrast to gravity knives, which are identified as such based on the way a user opens the device, metal knuckles do not require a special operating mechanism. Moreover, the character of metal knuckles is such that one need only look at the object to discern whether it is in fact metal knuckles. Thus, the officer here did not have to “exercise . . . professional skill or experience” to conclude defendant possessed metal knuckles (id,.), and the accusatory instrument did not require any specific description of the officer’s training or experience. Accordingly, the Appellate Term order should be affirmed.

Chief Judge DiFiore and Judges Pigott, Rivera, Stein, Fahey and Garcia concur.

Order affirmed.

       In the circumstance where a person is charged in an accusatory instrument with criminal possession of metal knuckles for having jewelry or other novelty items shaped like metal knuckles, and the factual section of the instrument is similar to that here, the issue of whether the item is a per se weapon can be tested at trial or challenged before the court (see e.g. People v Braunhut, 101 Misc 2d 684 [Crim Ct, Queens County 1979]). Here, however, the only issue before us is sufficiency of the accusatory instrument.


author: Pigott, J.

text:
    [65 NE3d 680, 42 NYS3d 651]
    The People of the State of New York, Respondent, v Herman Bank, Appellant. The People of the State of New York, Respondent, v Herman H. Bank, Appellant.
    Argued September 15, 2016;
    decided November 1, 2016

      POINTS OP COUNSEL

      Robert N. Isseks, Middletown, for appellant in the first above-entitled action.

      Sandra Doorley, District Attorney, Rochester {Leah R. Mervine of counsel), for respondent in the first above-entitled action.

      Timothy P. Donaher, Public Defender, Rochester {Timothy Davis and James Eckert of counsel), for appellant in the second above-entitled action.

      Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), for respondent in the second above-entitled action.
   OPINION OF THE COURT

Pigott, J.

On May 27, 2007, defendant, who was operating his car while under the influence of cocaine, drove the wrong way on Interstate 590 in Monroe County. He collided with another vehicle at highway speed, killing two of the occupants and seriously injuring a third.

Defendant was charged with multiple criminal counts, including two counts of manslaughter in the second degree (Penal Law § 125.15 [1]) and vehicular manslaughter in the first degree (Penal Law § 125.13 [4]). He pleaded not guilty and the case proceeded to a bench trial on December 9, 2008.

At trial, the People presented the testimony of three eyewitnesses who observed defendant’s vehicle traveling the wrong way on the interstate shortly before the accident. They also presented several witnesses who testified to the aftermath of the crash. One of the paramedics who arrived on the scene testified that defendant, who was trapped in his vehicle, appeared “calm and glassy eyed.” Defendant repeatedly asked how many cars he hit, and angrily stated that his girlfriend was “on a date with another guy.” Prior to being extracted from the vehicle, the paramedic administered morphine to the defendant.

A responding state trooper testified that he found two bottles of prescription pills in defendant’s vehicle. The Trooper went to the hospital after defendant was transported there, and based on his observations, asked defendant to submit to a chemical test. At first, defendant stated: “I don’t think I can do that. I made a mistake earlier in Buffalo. I was with a hooker. She blew cocaine smoke in my mouth . . . That will show up.” The Trooper then obtained a court order for a blood draw, which revealed the presence of cocaine in defendant’s system but none of the prescription drugs that were found in the vehicle. The People also presented the testimony of a toxicologist, who opined that defendant “was under the influence of cocaine at the time of the accident” and “would not be capable of safely driving a motor vehicle.”

Defendant asserted the affirmative defense that he was suffering from a mental disease or defect that rendered him not legally responsible. His counsel supported that theory by calling a clinical pharmacist, who opined that defendant “in the condition that he was in on that evening, lacked adequate [insight] and judgment as to the consequences of his actions.” The expert explained defendant’s history of bipolar disorder and stated that before the crash, he was not taking his prescription medication, resulting in mania. She also testified that the prescription drug defendant was taking predisposes someone to entering a manic or hypomanic phase, if not prescribed with a mood stabilizer. The expert disagreed with, and challenged the finding of the People’s experts who had performed an extrapolation to determine the level of cocaine in defendant’s blood at the time of the crash. Finally, she discussed how the morphine that was administered to defendant at the scene of the crash could have had negative effects on the voluntariness and accuracy of his post-accident statements.

In rebuttal, the People called a physician who opined that defendant was not hypomanic at the time of the crash and that even if he was, he would have understood the nature and consequences of his actions. In addition to the physician, the People also called a forensic psychiatrist, who testified that defendant’s actions prior to and after the accident were consistent with drug intoxication and not his proffered defense. In sur-rebuttal, defense counsel challenged the methodology of the People’s forensic psychiatrist with his own expert.

Following deliberations, the court found defendant guilty on all counts of the indictment. At sentencing, the court noted that it was “limited in what sentence can be imposed as a message not only to [defendant], but to the community. I think it does call for the maximum, more than the maximum.” He then sentenced defendant to an aggregate indeterminate term of incarceration of 5 to 15 years.

On direct appeal, the Appellate Division affirmed the judgment of conviction and sentence with respect to five of the eight counts, including the counts of manslaughter in the second degree and vehicular manslaughter in the first degree, rejecting defendant’s argument that defense counsel’s choice to present his defense through a pharmacological expert rather than a psychological or psychiatric expert deprived him of meaningful representation (129 AD3d 1445 [4th Dept 2015]).

L

Some four years later and after the death of both his attorney and the original Judge, defendant filed a motion pursuant to CPL 440.10 seeking to vacate the judgment of conviction on the ground that he had received ineffective assistance of counsel in the pretrial stages of the proceedings against him. Specifically, he argued that his attorney was constitutionally deficient because he mistakenly believed that defendant’s potential sentences on each count were statutorily required to run consecutively. He further alleged that his attorney did not engage in plea negotiations, and therefore no plea offer was conveyed to him as a result of counsel’s erroneous advice.

During a hearing on the motion, defendant averred that his attorney advised him that he faced consecutive sentences with an aggregate maximum term of IIV3 to 34 years. Relying on the attorney’s incorrect advice, defendant did not believe that a negotiated plea was worth pursuing and his attorney never engaged in plea negotiations on his behalf. Instead, defense counsel told the prosecutor that defendant was not interested in entering into plea negotiations.

In response, the People called tile Assistant District Attorney who had been responsible for the case the year before it went to trial. Her testimony was that the case involved “a very horrific crash” and did not warrant a plea bargain. She testified that she had “made clear” to defendant’s attorney that she would not be making any plea offers, and further, that even if she felt an offer was appropriate, “given the magnitude of the case,” she would have still needed the consent of the District Attorney of Monroe County to any reduction from the maximum.

County Court denied defendant’s motion and the Appellate Division unanimously affirmed (124 AD3d 1376 [4th Dept 2015]). The Court held that while defendant established that defense counsel incorrectly advised him during plea negotiations that he was facing consecutive sentences after conviction, he failed to establish that he was deprived of the possibility of a plea bargain acceptable to him as the result of that error (id. at 1377). A Judge of this Court granted defendant leave to appeal from that order (25 NY3d 1159 [2015]) and from the order affirming the judgment (26 NY3d 925 [2015]).

Defendant’s sole argument with respect to the CPL 440.10 motion is that his attorney was constitutionally ineffective for incorrectly advising him, at the pretrial stage, that his sentences were statutorily required to run consecutively. He contends that the record demonstrates a “reasonable probability” that this incorrect advice “affected the outcome of the proceedings” and that he was denied “meaningful representation” based “on the [un]fairness of the process as a whole.”

It is well settled that a defendant is entitled to the effective assistance of competent counsel at the plea negotiations stage (see Padilla v Kentucky, 559 US 356, 364 [2010]). A defendant, however, has no constitutional right to a plea bargain (see Lafler v Cooper, 566 US —, —, 132 S Ct 1376, 1395 [2012]; People v Adams, 20 NY3d 608, 613 [2013]). In New York, the standard for an ineffective assistance of counsel claim is whether the defendant was afforded “meaningful representation” and, while significant, the prejudice component of an ineffective assistance claim is not necessarily indispensable (People v Henry, 95 NY2d 563, 565 [2000]; see People v Stultz, 2 NY3d 277, 284 [2004]; People v Benevento, 91 NY2d 708, 712 [1998]).

Here, the Appellate Division found, and the record supports the determination, that defendant’s attorney incorrectly advised him that he was subject to mandatory consecutive sentences. There is no dispute that counsel’s advice to defendant was incorrect: consecutive sentences were not mandatory nor even an option {see Penal Law § 70.25 [2]).

However, defendant was required to show more than incorrect advice by defense counsel. Here, the record supports the Appellate Division’s determination that there was no possibility that a reduced plea would have been offered to defendant. Therefore, the incorrect advice could not have affected the outcome of the proceedings. The People entertained no plea possibility or any reduction in the sentence given, among other things, the maximum sentence defendant faced for killing two adults and injuring a third was an aggregate term of just 5 to 15 years. Nor was there any proof that the court would have extended an offer to a reduced sentence. Rather, the sentencing court remarked that it did not think the maximum sentence was enough punishment for defendant under the circumstances of this case.

We have considered defendant’s remaining arguments on his motion and find them to be lacking in merit.

II.

With respect to the direct appeal, defendant argues that his attorney’s reliance on the expert testimony of a clinical pharmacist, as opposed to a forensic psychiatrist, amounted to ineffective assistance of counsel. But defendant, a pharmacist himself, and his attorney pursued a reasonable trial strategy by attempting to demonstrate the effect of the medications on defendant’s mental health. The expert supported the defense’s theory that defendant was in a state of mania as a result of the combination of his bipolar medication and a new prescription, and she testified in great detail as to how these drug interactions could have rendered defendant incapable of understanding the consequences of his actions. We cannot question, in hindsight, what appears to have been a reasonable strategy of placing before the trier of fact testimony as to how defendant’s medication altered his mental state. Defendant’s claim that defense counsel should have put on a different expert, or that one even exists, is purely conjectural.

Accordingly, each of the Appellate Division orders should be affirmed.

Chief Judge DiFiore and Judges Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur.

In each case: Order affirmed.

       Defense counsel died in August 2010.


author:
Chief Judge DiFiore.
      Rivera, J.

text:
    [65 NE3d 684, 42 NYS3d 655]
    The People of the State of New York, Respondent, v Lyxon Chery, Appellant.
    Argued September 15, 2016;
    decided November 1, 2016

      POINTS OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City (Marisa K. Cabrera of counsel), for appellant. I. The trial court erred in permitting the prosecutor to impeach Lyxon Chery with omissions made during the course of his pre-Miranda, spontaneous statement to the responding officer. (People v Savage, 50 NY2d 673; People v Conyers, 52 NY2d 454; People v De George, 73 NY2d 614; People v Williams, 25 NY3d 185; People v Rothschild, 35 NY2d 355; Miranda v Arizona, 384 US 436; People v Vasquez, 88 NY2d 561; People v

      Barber, 143 AD2d 450; People v Bornholdt, 33 NY2d 75; People v Lanahan, 55 NY2d 711.) II. The court’s refusal to issue a missing witness charge for the prosecution’s failure to call the responding officer denied Lyxon Chery a fair trial in this case where the facts were in sharp dispute. (People v Gonzalez, 68 NY2d 424; Graves v United States, 150 US 118; People v Keen, 94 NY2d 533; People v Rodriguez, 38 NY2d 95; People v Thomas, 21 NY3d 226; People v Kitching, 78 NY2d 532.) III. The jury’s verdict convicting Lyxon Chery of robbery in the second degree must be set aside as legally insufficient where the prosecution failed to prove that the complainant suffered physical injury when he sustained bruising and a cut on his hand and leg, refused medical treatment, and did not miss any days of work. (Jackson v Virginia, 443 US 307; People v Contes, 60 NY2d 620; People v Schulz, 4 NY3d 521; People v Pope, 174 AD2d 319; People v DiStefano, 252 AD2d 530; People v Chid-dick, 8 NY3d 445; Matter of Philip A., 49 .NY2d 198; People v Brown, 145 AD2d 301; People v Williams, 170 AD2d 361; People v Williams, 112 AD2d 176.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Patricia Curran and Alice Wiseman of counsel), for respondent. I. The court properly allowed the prosecutor to impeach defendant with significant, unnatural omissions in his spontaneous statement to Officer Ramon Gutierrez at the scene. (People v Savage, 50 NY2d 673; People v Beige, 41 NY2d 60; People v Kello, 96 NY2d 740; People v Gray, 86 NY2d 10; People v Colon, 46 AD3d 260; People v Waters, 90 NY2d 826; People v Clarke, 81 NY2d 777; People v Boyd, 58 NY2d 1016; People v Love, 57 NY2d 1023; People v Qualls, 55 NY2d 733.) II. The trial court did not abuse its discretion in denying defendant’s request for a missing witness charge. (People v Macana, 84 NY2d 173; People v Gonzalez, 68 NY2d 424; People v Erts, 73 NY2d 872; People v Buckler, 39 NY2d 895; People v Stridiron, 33 NY2d 287; People v Savinon, 100 NY2d 192; People v Fields, 76 NY2d 761; People v Rodriguez, 38 NY2d 95; People v Ortiz, 83 NY2d 989; People v Perez, 157 AD2d 581.) III. The trial evidence proved beyond a reasonable doubt that the victim suffered physical injury during the robbery. (People v Norman, 85 NY2d 609; People v Gordon, 23 NY3d 643; People v Delamota, 18 NY3d 107; People v Henderson, 92 NY2d 677; People v McDowell, 28 NY2d 373; Matter of Philip A., 49 NY2d 198; People v Martinez, 90 AD3d 409; People v Oree, 58 AD3d 473; People v Chiddick, 8 NY3d 445; People v Guidice, 83 NY2d 630.)
   OPINION OF THE COURT

Chief Judge DiFiore.

The issue presented by this appeal is whether it was error to allow the People to use defendant’s selective silence, while making a spontaneous postdetention statement to the police, to impeach his trial testimony. We hold that, under the circumstances presented, impeachment through cross-examination was permissible in order to challenge the credibility of defendant’s trial testimony as to the events that had transpired at the scene.

Shortly after midnight on April 20, 2012, defendant and another man attacked complainant, the lone employee in a small grocery store, while he was closing the store for the night. Defendant robbed complainant of $215. Two witnesses, who testified at trial, observed the altercation between defendant and the complainant. When the responding officer arrived at the scene, he saw defendant with a sharp metal object in his hand and also observed a long wooden board on the sidewalk. In addition, the officer noticed that complainant had sustained injuries. The police initially placed both men in handcuffs but, after speaking with complainant and the witnesses, arrested only defendant. When the officer searched defendant, he recovered an envelope containing $215 from defendant’s pocket.

Prior to trial, the court denied defendant’s motion to suppress the statement defendant made to the responding officer at the scene, concluding that the statement “was spontaneous and not the product of investigation.” Thus, at trial, the responding officer was permitted to testify that “defendant asked me why isn’t [complainant] going to jail, he kicked my bike, he should be going to jail too.”

Defendant testified on his own behalf. Before defendant began testifying, the prosecutor asked the court in advance for a short break to follow the direct testimony. The prosecutor told the court that, depending upon the content of defendant’s testimony, “1 may . . . request some kind of motions after he testifies, opening doors, things like that.”

Defendant then testified that, prior to the altercation, he had been outside the store with a friend. Defendant claimed that, after the friend drove away, and while defendant was packing up to leave, defendant saw complainant chasing two teenage girls from the store and cursing at them for trying to steal from the store. Defendant related that he told complainant, in essence, that it was not good for business to treat people that way. Defendant testified that complainant then began kicking defendant’s bicycle and that complainant hit him on the head with a piece of wood. According to defendant, the two men were struggling over control of the wooden board when the police arrived and separated them. When asked if he told the police “what was going on,” defendant testified that he told the police officer at the scene that complainant “was kicking my bike, and then we got into a fight, and if he come with the wood, that’s not my wood, that’s his wood.”

After defendant’s direct testimony, the prosecutor asked the court for permission to impeach him on cross-examination with the omissions from his initial, spontaneous statement to the police. The prosecutor asserted that, based on People v Savage (50 NY2d 673 [1980]), defendant was subject to impeachment because he had testified to certain events that were not included in his initial statement (i.e., complainant striking him with the wooden board) and “which logically would have been said to the police when they arrived on the scene.” The prosecutor further maintained that the situation presented here— where a defendant provides a statement to the police at the scene and a different recitation of events at trial—was distinguishable from the situation presented when a defendant remains silent. Defense counsel argued that Savage was distinguishable because the defendant in Savage had received Miranda warnings prior to making his statement. After initially expressing its own concerns that the impeachment could impact defendant’s right to remain silent, the court concluded that this situation fell within the Savage rule and granted the application.

Without any further objection from defense counsel, the defendant on cross-examination contradicted himself, testifying both that he told the police that complainant had hit him with a wooden board and that he did not tell the police about being hit with the board. He testified that he did not tell the police about the two teenage girls being chased from the store. Moreover, defendant reiterated that he told the police that complainant had been “kicking my bike” and should be “go[ing] to jail too.”

The jury convicted defendant of robbery in the first degree and two counts of robbery in the second degree. The Appellate Division affirmed (127 AD3d 533 [1st Dept 2015]). The Court concluded that the unnatural omissions from defendant’s spontaneous statement to the police at the scene were the proper subject of impeachment. A Judge of this Court granted defendant leave to appeal (25 NY3d 1199 [2015]) and we now affirm.

As an initial matter, because this case involves defendant’s silence in conjunction with his spontaneous, postdetention statement, this is not a case that implicates defendant’s constitutional right to due process or to remain silent (see Jenkins v Anderson, 447 US 231 [1980]; Doyle v Ohio, 426 US 610 [1976]). Rather, we consider the propriety of the People’s use of defendant’s significant omissions for impeachment purposes under our State’s rules of evidence (see e.g. People v Conyers, 52 NY2d 454, 457 [1981]; Savage, 50 NY2d at 678).

As we have recently restated, “[i]t is a well-established principle of state evidentiary law that evidence of a defendant’s pretrial silence is generally inadmissible” (People v Williams, 25 NY3d 185, 190 [2015]). This rule applies both to the People’s direct case and, “absent unusual circumstances,” to impeachment of defendant’s trial testimony (see 25 NY3d at 191). The reasoning behind this restriction is that “a defendant’s silence is generally ambiguous and ‘of extremely limited probative worth’ ” (25 NY3d at 191, quoting Conyers, 52 NY2d at 458).

We have recognized a narrow exception to the general rule when the defendant has not, in fact, remained silent. Thus, in Savage, we held that “when given circumstances make it most unnatural to omit certain information from a statement, the fact of the omission is itself admissible for purposes of impeachment” (50 NY2d at 679). There, after receiving his Miranda warnings, Savage made statements to the police indicating that he had shot another man during an altercation. However, at trial, Savage testified that the basis of the altercation underlying the shooting was the victim’s attempt to rob him and that his discharge of the weapon had been accidental. We held that, although the prosecution is not permitted to advocate that the jury draw any adverse inferences from a defendant’s postarrest silence, “in a case like the one before us today, where we deal with a defendant who did not stand mute, evenhanded logic dictates that time-tested evidentiary procedures for the ascertainment of truth not be ignored” (50 NY2d at 681).

The facts of this case are different from Savage in several respects. These differences, however, support the application of our rule in Savage. Here, unlike in Savage, defendant’s statement was not the product of interrogation, but was made spontaneously at the scene, prior to the issuance of Miranda warnings. In addition, the substance of defendant’s spontaneous statement was not inculpatory, but a description of the complainant’s conduct and was made to inform the police when the information was timely to their decision as to whether to arrest defendant or complainant. Even more significant, defendant admitted in his direct testimony that he was not silent and that he had given the police his version of complainant’s misconduct at the scene. Consequently, the credibility of his initial spontaneous statement was legitimately called into question by his trial testimony.

Here, defendant elected to provide some explanation of what happened at the scene, and it was unnatural to have omitted the significantly more favorable version of events to which he testified at trial—that complainant had assaulted him. “[Defendant’s conspicuous omission of these exculpatory facts in his voluntary statement to police tended to show that his trial testimony was a recent fabrication” (Williams, 25 NY3d at 192).

To the extent the People went beyond the proper scope of the trial court’s original Savage ruling by inquiring as to matters that preceded the altercation and would not have been unnatural omissions from the spontaneous statement (i.e., complainant chasing the girls from the store), any such argument is unpreserved, as defense counsel did not object to any testimony on that basis. Notably, in this case, there is no significant probability that the result would have been different even if the court had denied the People’s request to impeach defendant (see People v Crimmins, 36 NY2d 230, 242 [1975]). The evidence was overwhelming and the content of defendant’s spontaneous statement was already before the jury through the two conflicting versions as provided by the responding officer’s testimony and defendant’s direct testimony, thus allowing the jurors to draw their own conclusion as to credibility from the plainly inconsistent testimony.

Defendant’s remaining arguments are without merit.

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

Rivera, J.

(concurring). For the reasons stated by the majority, I agree that the facts of this case make it different from People v Savage (50 NY2d 673 [1980]) (majority op at 145). Unlike the majority, I find those differences cannot be analytically overcome and believe that it was error to allow the People to impeach the defendant’s trial testimony with his selective silence during cross-examination. Omissions from a non-exculpatory, spontaneous, pre-Miranda statement to police at the scene of the arrest do not rise to the “limited and unusual circumstances” contemplated in People v Williams (25 NY3d 185, 193 [2015]). However, because the error was harmless, and because the other claims are without merit, the Appellate Division should be affirmed.

Judges Pigott, Abdus-Salaam, Stein, Fahey and Garcia concur; Judge Rivera concurs in result in a separate concurring opinion.

Order affirmed.

       The testimony at trial was that the accomplice fled the scene before the police arrived.


author: Rivera, J. Pigott, J.

text:
    [65 NE3d 688, 42 NYS3d 659]
    The People of the State of New York, Respondent, v Luis A. Pabon, Appellant.
    Argued September 14, 2016;
    decided November 1, 2016

      POINTS OF COUNSEL

      Easton Thompson Kasperek Shiffrin LLP, Rochester (Brian Shiffrin of counsel), for appellant.

      Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), for respondent.
   OPINION OF THE COURT

Rivera, J.

Defendant Luis A. Pabon challenges his conviction upon a nonjury verdict on the grounds that his prosecution is untimely, the judge was exposed to inadmissible opinion testimony prejudicial to the defense, and the judge erroneously refused to sequester items essential to defendant’s claims of judicial misconduct. Contrary to defendant’s argument, the tolling provision of CPL 30.10 (3) (f) applies to his crime and as a result the indictment is not time-barred. Defendant’s other claims present no basis to overturn his conviction, or otherwise disturb the decision below.

Defendant was indicted on one count of course of sexual conduct in the first degree (Penal Law § 130.75 [1] [a]) for acts committed between 1998 and 1999 when he sexually assaulted AM, the seven-year-old daughter of defendant’s former lover. Defendant was charged after AM disclosed the abuse to the police in 2012, when she was 21 years old.

Before trial, defendant moved to dismiss the indictment as time-barred. Supreme Court denied the motion, rejecting defendant’s argument that CPL 30.10 (3) (f) did not toll the limitations period because such a reading would render the five-year limitations period in CPL 30.10 (3) (e) superfluous.

At defendant’s nonjury trial, an investigating officer testified that he believed defendant lied to him when defendant denied the allegations during a post-arrest interview. Defense counsel objected, asserting that the investigator could not testify as to defendant’s veracity because that was a matter to be determined solely by the court. The judge overruled the objection stating he was listening to the testimony and “not taking [the investigator’s] judgment.”

Defense counsel also moved for a mistrial twice, based on what counsel argued was inappropriate behavior by the judge “sitting as the sole juror in the case.” Specifically, counsel objected to what he assumed was the judge’s reading of a document not in evidence while the investigator testified and to the judge’s note-taking and alleged operation of a cell phone and a computer during the trial. The court denied the mistrial motions, as well as counsel’s request that the judge sequester his cell phone, computer, notes, and the document.

The Appellate Division affirmed the conviction, with one Justice dissenting (126 AD3d 1447 [4th Dept 2015]). As relevant here, the Court held that the indictment was not time-barred because CPL 30.10 (3) (f) tolled the statute of limitations for defendant’s crime until the victim attained the age of 18. The Court further concluded that admission of the investigator’s opinion testimony was harmless error because “in a nonjury trial, the court is presumed to be capable of disregarding any improper or unduly prejudicial aspect of the evidence” (id. at 1448). The Court also summarily rejected defendant’s claim that he was denied appellate review by the judge’s refusal to sequester the named items (id. at 1449).

The dissent would have reversed and dismissed the indictment as time-barred, concluding that application of CPL 30.10 (3) (f) to toll the five-year limitations period of CPL 30.10 (3) (e) would render the latter superfluous and ineffective (id. at 1450). The dissenting Justice granted defendant leave to appeal (25 NY3d 1174 [2015, DeJoseph, J.]).

Defendant claims his prosecution is time-barred because the applicable five-year limitations period set forth in CPL former 30.10 (3) (e) expired before the filing of the felony complaint, and the statute of limitations is not subject to tolling under CPL 30.10 (3) (f). Defendant’s argument is unpersuasive, misconstrues the statutory provisions, and ignores the relevant legislative history. The crime for which defendant stands convicted is expressly encompassed by CPL 30.10 (3) (f), and involves the type of conduct the legislature sought to address by expansive, albeit delayed, prosecution of multiple acts of sexual abuse against a minor.

It is well established that since “the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof” (People v Golo, 26 NY3d 358, 361 [2015], citing Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). “[W]hen the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used” (People v Jones, 26 NY3d 730, 733 [2016]). Further, “[a]ll parts of a statute must be harmonized with each other as well as with the general intent of the whole statute, and effect and meaning must, if possible, be given to the entire statute and every part and word thereof” (McKinney’s Cons Laws of NY, Book 1, Statutes § 98 [a]).

In 1996, the legislature enacted Penal Law § 130.75 creating the crime for which defendant was convicted, course of sexual conduct against a child in the first degree (L 1996, ch 122, § 6). At the same time the legislature added CPL 30.10 (3) (e) and (f). Section 30.10 (3) (e) provided, in relevant part, that “[a] prosecution for course of sexual conduct in the first degree as defined in section 130.75 of the penal law . . . may be commenced within five years of the commission of the most recent act of sexual conduct.” Section 30.10 (3) (f) tolls the limitations period in a prosecution of a sex offense against a minor, and mandates,

“[f]or purposes of a prosecution involving a sexual offense as defined in article one hundred thirty of the penal law committed against a child less than eighteen years of age . . . , the period of limitation shall not begin to run until the child has reached the age of eighteen or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier.”

In 2006, the legislature eliminated the statute of limitations in CPL 30.10 (3) (e) for course of sexual conduct against a child in the first degree, and in its place, by amendment to CPL 30.10 (2) (a), provided that prosecution of this crime “may be commenced at any time” (CPL 30.10, as amended by L 2006, ch 3). The legislature intended that the change apply retroactively to offenses whose respective statutes of limitations had not expired by the effective date of the amendment (L 2006, ch 3, § 5 [eff June 2006], reprinted in 2006 McKinney’s Session Laws of NY at 5; see generally Stogner v California, 539 US 607 [2003]).

By its plain language, and under prescribed circumstances not challenged on this appeal, CPL 30.10 (3) (f) tolls the period of limitations applicable to course of sexual conduct against a child in the first degree, as defined in Penal Law § 130.75 (1) (a). Defendant does not challenge the clarity of the text or this direct line of analysis. Instead, defendant claims that the application of this interpretation presents a statutory conflict. As defendant sees it, because the tolling provision in CPL 30.10 (3) (f) applies to the general five-year statute of limitations in CPL 30.10 (2) (b), which governs all non-class A felonies including, by definition, defendant’s crime, and since his crime is a continuing crime, meaning the limitations period would have commenced with the last act committed, there is no circumstance under which the specific limitations period in CPL 30.10 (3) (e) controls, rather than the period in CPL 30.10 (2) (b). In that case, CPL 30.10 (3) (e) serves no purpose and is mere statutory surplus. Defendant argues this result is in contravention of the rules of statutory interpretation which require both that a statute be construed to give meaning to all its words and that, where a conflict arises between parts of a statute, the specific overrides the general. To avoid this result, defendant claims that the tolling provision in paragraph (f) should not apply to the statute of limitations in paragraph (e).

Defendant’s proposed construction can neither be squared with the text, legislative purpose, and history of the relevant statutory provisions, nor can it find support in logic and reason. Unlike CPL 30.10 (3) (e), which is a self-contained statute of limitations, CPL 30.10 (3) (f) is a tolling provision and as such is dependent on reference to time limits found elsewhere in the statute. Defendant mistakenly equates the two paragraphs—as if they are both statutes of limitations—when he claims they are in conflict and the specific provision of CPL 30.10 (3) (e) overrides the general provision of CPL 30.10 (3) (f). The more apt comparison is to the two statutes of limitations in CPL 30.10 (3) (e) and 30.10 (2) (b), which harmoniously coexist as a specific and general statute of limitations, respectively, and which in no way lead to the conclusion promoted by defendant, that CPL 30.10 (3) (e) is superfluous. Regardless, there is no conflict obvious from the interplay of paragraphs (e) and (f) of subdivision (3). One sets forth a five-year prosecution deadline and the other explains when the clock begins to run on that deadline.

Apart from this text-based analysis, our interpretation of these paragraphs is also consistent with the purpose of the 1996 legislation and the 2006 amendment. The legislature created the crime of course of sexual conduct against a child (Penal Law § 130.75) in order to address the difficulty in prosecuting multiple sexual offenses committed against a child over an extended period of time. Under this Court’s 1986 decision in People v Keindl (68 NY2d 410 [1986]), in order to provide sufficient notice to the defendant as to the crimes charged, prosecutors needed to charge each instance of sexual assault separately, and with specificity as to the intervals of the past events (see People v Morris, 61 NY2d 290 [1984]; People v Watt, 84 NY2d 948 [1994]). Based on the reality that child victims are less capable of providing specific detail as to the dates and times of each sexual assault committed over an extended period of time, claims of continued abuse went unprosecuted because child victims often could not remember the dates when the sexual assaults had occurred or how many times they were assaulted in that same period of time. In 1996, the legislature voted to remove this impediment to the prosecution of those who commit repeated sex crimes against minors during a period of time in excess of three months. The 1996 amendment, which created the crime of course of sexual conduct against a child and the five-year statute of limitations set forth in CPL 30.10 (3) (e), rendered repeated sexual assaults “continuing crimes,” which “can be prosecuted and proven regardless of whether child-victims can specify the particular dates and times of the individual acts of sexual conduct” (Governor’s Program Bill Mem No. 39R, Bill Jacket, L 1996, ch 122 at 8). Simply put, CPL 30.10 (3) (e) was intended to address the obstacles to prosecution by recognizing that a series of multiple sexual assaults of a child over an extended period of time is, indeed, a continuous crime.

The legislature also sought to address additional barriers to prosecution by tolling the statutes of limitations. As this Court has explained, at the time CPL 30.10 (3) (e) and (f) were enacted,

“there was a widespread recognition that the strictures of the limitations periods pertaining to sex offenses against children presented unique difficulties because many child victims are hesitant or fearful of disclosing such crimes, especially when the sexual abuse is committed by a family member or an individual in the child’s household. In response to these concerns, new laws adding tolling provisions to the statutes of limitations for sexual offenses against children were enacted in 1996 as part of a ‘major step’ toward ‘ensuring] that the law provides the highest level of protection possible to these most vulnerable victims’ ” (People v Quinto, 18 NY3d 409, 412 [2012], quoting Letter from President of Borough of Queens, June 5, 1996, Bill Jacket, L 1996, ch 122 at 22, and Letter from Mayor of City of NY, June 5, 1996, Bill Jacket, L 1996, ch 122 at 28).

As a consequence, “CPL 30.10 (3) (f) was a major component of the legislative package” (Quinto, 18 NY3d at 413). This legislative goal of

“[d]elaying the commencement of the relevant limitations period until the age of maturity was intended to ‘increase the likelihood that young adults, recently freed from a position of dependency, will disclose the offenses committed against them in order to seek redress through the criminal justice system’ and that this would ‘also improve opportunities for preventing recurrences of the conduct by the perpetrator’ ” (id. at 413, quoting Letter from Council on Children and Families, June 17, 1996, Bill Jacket, L 1996, ch 122 at 18).

The language and history of the subsequent 2006 amendments to CPL 30.10 (3) (e) and (f) further illustrate that the legislature could not have intended defendant’s interpretation. The 2006 amendment eliminated the limitations period for course of sexual conduct against a child in the first degree from CPL 30.10 (3) (e), and included it in CPL 30.10 (2) (a) (CPL 30.10, as amended by L 2006, ch 3). Section 30.10 (3) (f) was also amended to toll the period of limitations for sexual offenses defined in article 130, “other than a sexual offense delineated in” CPL 30.10 (2) (a) (id. [emphasis added]). These changes to the statutory scheme explicitly excluded course of sexual conduct against a child in the first degree from CPL 30.10 (3) (f), meaning that the legislature must have understood CPL 30.10 (3) (f) to have applied to this crime prior to the amendment. In other words, the legislature would not have excluded a crime from CPL 30.10 (3) (f) unless it believed that crime was previously within its ambit.

The plain language of CPL 30.10 (3) (e) and (f), the natural interplay between these provisions, and the legislative history of the 1996 and 2006 amendments provide ample reasons to reject defendant’s proposed interpretation, but there is also the problem that defendant’s construction leads to absurd results. We carefully scrutinize this impact of defendant’s approach because courts are “governed by the principle that we must interpret a statute so as to avoid an unreasonable or absurd application of the law” (People v Garson, 6 NY3d 604, 614 [2006] [internal quotation marks omitted], citing People v Santi, 3 NY3d 234, 244 [2004]). Indeed, “courts have repeatedly rejected statutory constructions that are unconscionable or antithetical to legislative objectives” (Matter of New York State Assn. of Criminal Defense Lawyers v Kaye, 96 NY2d 512, 519 [2001]).

Two examples illustrate why the interpretation defendant advocates is untenable. First, if we applied defendant’s reading to the statute, it would mean that the People could not prosecute a defendant in the case of a victim sexually abused from ages three to four who discloses at 16, because the statute of limitations would have expired when the child turned nine, but if the crimes referenced in CPL 30.10 (3) (e) were tolled under CPL 30.10 (3) (f) until disclosure at age 16, the statute of limitations would not expire until the child turned 21. Certainly the legislature, set on removing obstacles to prosecutions and recognizing “child victims are hesitant or fearful of disclosing such crimes” (Quinto, 18 NY3d at 412), could not have intended the statute to foreclose prosecution in such a case. Second, under defendant’s approach prosecutions of single abuse cases would be tolled, while those involving multiple acts against a minor would be barred five years after the last act. Meaning that, had defendant been accused of sexually abusing AM just once, he could have been prosecuted up to and until 2015, but, having been accused of continued sexual abuse over a three-month period, his prosecution was entirely foreclosed after 2004. Defendant’s interpretation thereby does less to prevent a recurrence of sexual abuse of children than to incentivize a child abuser to commit multiple acts. Such interpretation is “unconscionable or antithetical to [the] legislative objectives” (Assn. of Criminal Defense Lawyers, 96 NY2d at 519) of “improving] opportunities for preventing recurrences of the conduct by the perpetrator” (Quinto, 18 NY3d at 413 [citation and internal quotation marks omitted]).

In sum, application of CPL 30.10 (3) (f) to crimes described in CPL 30.10 (3) (e) conforms with the statutory text and furthers the legislative goal of those statutes by tolling the limitations period. Therefore, defendant’s prosecution is not time-barred.

Defendant’s alternative claim that the trial judge’s admission of irrevelant testimony warrants a new trial is unpersuasive because the error was harmless. As the Appellate Division correctly determined, the judge should not have admitted the investigator’s opinion testimony that defendant lied to him during the interview (see People v Ciaccio, 47 NY2d 431, 439 [1979] [“(i)t is always within the sole province of the jury to decide whether the testimony of any witness is truthful or not”]). Instead, the appropriate course would have been for the judge to sustain defense counsel’s objection and preclude or strike the testimony. Nevertheless, the Appellate Division has applied a presumption that a court in a nonjury trial will disregard improper evidence because judges, unlike jurors, are sufficiently well-versed in the law to understand rules of evidence and, in the case of a bench trial, may be presumed to rely only on admissible evidence (see e.g. People v Cobb, 294 AD2d 199, 200 [1st Dept 2002]; People v Livingston, 184 AD2d 529 [2d Dept 1992]; People v Maxam, 161 AD2d 961 [3d Dept 1990]; People v LoMaglio, 124 AD3d 1414 [4th Dept 2015]). In the same vein, this Court in People v Moreno (70 NY2d 403, 406 [1987], quoting People v Brown, 24 NY2d 168, 172 [1969]) has recognized that a judge, “ ‘by reasons of [his] learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and of making an objective determination’ based upon appropriate legal criteria, despite awareness of facts which cannot properly be relied upon in making the decision.” Defendant argues that this presumption does not apply when a judge erroneously admits evidence because, by admitting it, the judge has revealed a misunderstanding regarding the evidence’s proper use.

We need not resolve the applicability of the presumption recognized by the Appellate Division as a general matter because the underlying rationale for such a presumption does not logically extend to this case, where the judge erroneously allowed inadmissible evidence over proper objection. Absent some reliable indication that, notwithstanding the erroneous ruling, the judge knows that the evidence must be disregarded, we cannot presume the judge, acting as the finder of fact, will forgo consideration of the evidence during the course of the trial or in reaching a verdict (cf. People v Smith, 18 NY3d 544, 552 [2012] [judge’s erroneous admission of evidence warranted reversal because the judge “clearly relied” on the evidence and it “led to the conviction”]). Here, the judge’s on-the-record statement that he was “not taking [the investigator’s] judgment” provides sufficient assurance that he was not adopting the investigator’s assessment of defendant’s honesty. Therefore, the erroneous admission of the testimony was harmless.

We also reject defendant’s remaining claim that the judge’s denial of his mistrial motions and request to sequester the judge’s notes, cell phone, computer, and unidentified document deprived defendant of proper appellate review. Defendant contends that in a bench trial the judge sits as a jury and is therefore subject to the same limitations as any juror, meaning the judge may not look at unadmitted documents, take notes, or use electronic devices during the proceedings. Defendant ignores that in a nonjury trial the judge serves in dual roles, and while sitting as the factfinder the judge continues to be responsible for all the judicial obligations attendant to overseeing a trial. Thus, a judge may take notes and rely on technological instruments to facilitate the proper discharge of these judicial duties.

To the extent defendant claims the judge misused items defendant sought to have sequestered or, as his arguments imply, that the judge was distracted and failed to give proper consideration to the evidence, his claims are unsupported by the record. Trial counsel admitted he did not know the nature or content of the document the judge was holding and, as the record shows, the judge indicated that although he did not know what document counsel was referencing, he assured him that he was in fact listening to the testimony. Additionally, counsel failed to object at the time of the alleged misuse of the notes and electronic devices, and based his subsequent mistrial motion on mere observations of the judge’s possession and unspecified operation of the phone and computer. Under these circumstances, we perceive no abuse of discretion in the trial judge’s denial of defendant’s motions for mistrial and to sequester the named items (see Harris v Village of E. Hills, 41 NY2d 446, 451 [1977]; see also People v Rice, 75 NY2d 929, 933 [1990]).

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

Pigott, J.

(concurring). I would affirm for reasons stated in the memorandum of the Appellate Division (126 AD3d 1447 [2015]).

Chief Judge DiFiore and Judges Abdus-Salaam, Stein and Fahey concur; Judge Pigott concurs in result in an opinion in which Judge Garcia concurs.

Order affirmed.

       Defendant attempts to obfuscate the obvious, that the legislature could not make plainer its intent to extend the time for prosecution of this crime, both by eliminating the statute of limitations and by intending that the amendment have retroactive application to the fullest extent permissible under the law.