text:
    [54 NE3d 1155, 35 NYS3d 284]
    The People of the State of New York, Respondent, v Glenford C. Hull, Appellant.
    Argued April 28, 2016;
    decided June 2, 2016

      APPEARANCES OF COUNSEL

      Edelstein & Grossman, New York City (Jonathan I. Edelstein of counsel), for appellant.

      Richard D. Northrup, Jr., District Attorney, Delhi (John L. Hubbard of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted in 2006 of one count of murder in the second degree for fatally shooting his downstairs neighbor. On appeal, the Appellate Division vacated the judgment and ordered a new trial on the ground that defendant received ineffective assistance of trial counsel (71 AD3d 1336 [2010]). At defendant’s second trial, the People presented evidence that defendant and the victim constantly argued and had engaged in a verbal altercation immediately before the shooting. Defendant retrieved a loaded handgun from his bedroom, opened the apartment door and allegedly confronted the victim. The victim rushed at defendant and reached for the gun. According to defendant’s daughter, who witnessed the incident, the two men were struggling when the gun discharged. The bullet struck the victim in the forehead, killing him instantly. Defendant testified in his own defense that he did not intend to shoot the victim and “wasn’t aiming for nothing” but “wanted to stop his forward momentum.”

At the conclusion of evidence, the People requested that the court instruct the jury on the lesser included offense of manslaughter in the first degree, which requires proof that defendant caused the death of another with “intent to cause serious physical injury” (Penal Law § 125.20 [1]). The court submitted the charge over defendant’s objection, along with defendant’s requested instructions on second-degree manslaughter, criminally negligent homicide and the defense of justification. The jury acquitted defendant of murder but found him guilty of manslaughter first. Defendant moved to set aside the verdict, arguing that there was no reasonable view of the evidence that he intended only to injure, but not kill, the victim when he shot him in the forehead at point-blank range. The trial court denied the motion and the Appellate Division affirmed, with one Justice dissenting (125 AD3d 1099 [2015]). The dissenting Justice subsequently granted defendant leave to appeal (25 NY3d 955 [2015]).

The courts below properly concluded that there was a reasonable view of the evidence that defendant committed first-degree manslaughter but not murder in the second degree and, therefore, the trial court did not err in submitting that charge. A court “may, in addition to submitting the greatest offense which it is required to submit, submit in the alternative any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed” the lesser but not the greater offense (CPL 300.50 [1]). It is undisputed that manslaughter in the first degree is a lesser included offense of second-degree murder within the meaning of CPL 1.20 (37), so “the question simply is whether on any reasonable view of the evidence it is possible for the trier of the facts to acquit the defendant on the higher count and still find him guilty on the lesser one” (People v Henderson, 41 NY2d 233, 236 [1976] [emphasis added and citations omitted]).

Here, defendant’s statements to the victim just before the shooting, coupled with evidence of the struggle and defendant’s testimony that he “wasn’t aiming for nothing” but “wanted to stop [the victim’s] forward momentum” could have led the jury to conclude that defendant intended only to injure the victim and that the victim’s movements during the struggle resulted in his death (see People v Ford, 66 NY2d 428, 441 [1985]). The fact that a bullet entered the victim’s forehead does not necessarily mean defendant intended to kill him, as “it is a matter of common experience that people who fire handguns do not always hit precisely the intended target” (People v Butler, 86 AD2d 811, 815 [1st Dept 1982, Sandler, J., dissenting], revdfor reasons stated in dissenting op 57 NY2d 664, 666 [1982]).

Defendant’s remaining contention regarding the court’s inquiry into possible juror misconduct is unpreserved for our review (see People v Hicks, 6 NY3d 737, 739 [2005]).

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Fahey and Garcia concur; Judge Stein taking no part.

Order affirmed, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Tony Avella et al., Respondents, v City of New York et al., Respondents, and Queens Development Group, LLC, et al., Appellants.
    Submitted May 2, 2016;
    decided June 2, 2016
   Motion for an order precluding the City of New York et al. from submitting a brief as respondents on the appeal etc. denied.


text:
    In the Matter of Chana J.A., Respondent, v Barry S., Appellant. (Proceeding No. 1.) In the Matter of Barry S., Appellant, v Chana S., Respondent. (Proceeding No. 2.)
    Submitted March 14, 2016;
    decided June 2, 2016
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from the February 2014 Family Court order, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Citizens for St. Patricks et al., Appellants, v City of Watervliet Zoning Board of Appeals et al., Respondents.
    Submitted December 7, 2015;
    decided June 2, 2016
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the July 2015 Appellate Division order appealed from affirming the July 2014 Supreme Court paper which, among other things, granted PCP Watervliet, LLC’s motion pursuant to CPLR 6315 to ascertain damages and ordered a hearing to determine damages, does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution.

Judge Stein taking no part.


text:
    In the Matter of Entergy Nuclear Operation, Inc., et al., Respondents, v New York State Department of State et al., Appellants.
    Submitted May 31, 2016;
    decided June 2, 2016
   Motion by African American Environmentalist Association et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of John J. Fabbricante, Appellant, v Donna Fabbricante, Respondent.
    Decided June 2, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of the Claim of Deborah Fatone, Respondent. Addison Street Spa, LLC, Appellant; Commissioner of Labor, Respondent.
    Submitted March 28, 2016;
    decided June 2, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Sandra D. Frelix (Admitted as Sandra Delores Frelix), an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted January 11, 2016;
    decided June 2, 2016
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that appellant has failed to demonstrate timeliness as required by the Rules of the Court of Appeals (see 22 NYCRR 500.9, 500.10). Motion for leave to appeal dismissed for failure to demonstrate timeliness as required by the Rules of the Court of Appeals (see 22 NYCRR 500.22 [b] [2]).


text:
    In the Matter of Reynald Gonzalez, Respondent, v Diane E. Hunter, Appellant. (And Two Other Proceedings.)
    Submitted March 28, 2016;
    decided June 2, 2016
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the Family Court order dismissing the violation petition, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Jeremiah J.W. Suffolk County Department of Social Services, Respondent; Tionna W., Appellant.
    Submitted April 4, 2016;
    decided June 2, 2016
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; 2103 [b] [2]).


text:
    In the Matter of Julio O. and Others, Children Alleged to be Neglected. Latishya H., Appellant; Administration for Children’s Services, Respondent, et al., Respondent.
    Submitted April 4, 2016;
    decided June 2, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Carmelo Maisonet, Plaintiff, and Miriam Cirera, Appellant, v Michael Roman et al., Respondents.
    Decided June 2, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Henry Nolasco, Plaintiff, v Soho Plaza Corp. et al., Defendants/Third-Party Plaintiffs-Appellants. Jason Birnbaum et al., Third-Party Respondents, et al., Third-Party Defendant.
    Submitted January 4, 2016;
    decided June 2, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Kevin Allen, Appellant.
    Submitted May 23, 2016;
    decided June 2, 2016
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Roberto Estremera, Appellant.
    Submitted May 9, 2016;
    decided June 2, 2016
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Keith Fagan, Respondent.
    Submitted May 16, 2016;
    decided June 2, 2016
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Douglas Farmer, Appellant.
    Submitted May 23, 2016;
    decided June 2, 2016
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Lawrence P. Frumusa, Also Known as John Doe, Appellant.
    Submitted May 9, 2016;
    decided June 2, 2016
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Guy D. Pendleton, Jr., Appellant.
    Submitted May 16, 2016;
    decided June 2, 2016
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Jose Salgado, Appellant.
    Submitted May 9, 2016;
    decided June 2, 2016
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, ex rel. Shaliek Carter, Appellant, v Brandon J. Smith, as Superintendent of Greene Correctional Facility, Respondent.
    Submitted April 11, 2016;
    decided June 2, 2016
   Motion for reconsideration of this Court’s February 23, 2016 dismissal order denied [see 26 NY3d 1138 (2016)].


text:
    In the Matter of Terry Sanders, Appellant, v Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent.
    Submitted March 14, 2016;
    decided June 2, 2016
   Motion for leave to appeal from the Appellate Division order denying reconsideration etc. dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Terry Sanders, Appellant, v Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent.
    Submitted April 18, 2016;
    decided June'2, 2016
   Motion to vacate this Court’s September 2, 2015 dismissal order denied [see 26 NY3d 964 (2015)].


text:
    Taurus Whitehead, Appellant, v State of New York, Respondent.
    Decided June 2, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Patrick H. Barclay, Also Known as Independent Anchor, Appellant, v Citibank, N.A., Respondent.
    Submitted May 2, 2016;
    decided June 14, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Jennifer Cangro, Appellant, v John Z. Marangos, Respondent.
    Submitted May 2, 2016;
    decided June 14, 2016
   Motion for reconsideration of this Court’s February 11, 2016 dismissal order denied [see 26 NY3d 1113 (2016)].

Judge Garcia taking no part.


text:
    Greens at Half Hollow Home Owners Association, Inc., for Itself and on Behalf of the Residents of The Greens at Half Hollow, et al., Appellants-Respondents, v Greens Golf Club, LLC, et al., Respondents-Appellants.
    Submitted April 18, 2016;
    decided June 14, 2016
   Motion by plaintiffs for leave to appeal denied. Cross motion, insofar as defendant Greens at Half Hollow, LLC seeks leave to appeal, dismissed upon the ground that it is not a party aggrieved (see CPLR 5511); cross motion for leave to appeal otherwise denied.


text:
    Greens at Half Hollow Home Owners Association, Inc., for Itself and on Behalf of the Residents of The Greens at Half Hollow, et al., Appellants-Respondents, v Greens Golf Club, LLC, et al., Respondents-Appellants.
    Submitted May 9, 2016;
    decided June 14, 2016
   Motion by Town of Huntington for leave to file a brief amicus curiae on the motion by plaintiffs for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Joselyn S. Suffolk County Department of Social Services, Respondent; Lizzeth E., Appellant.
    Submitted May 2, 2016;
    decided June 14, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Ilia Kajo et al., Appellants, v E.W. Howell Co., Inc., et al., Defendants/Third-Party Plaintiffs-Respondents, et al., Defendant. Cumberland Electric Corp., Third-Party Defendant-Respondent.
    Submitted May 9, 2016;
    decided June 14, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Robert A. Miazga, Appellant, v Michael D. Assaf et al., Respondents.
    Submitted April 18, 2016;
    decided June 14, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Stein taking no part.


text:
    Jonathan Ocana, Respondent, v Quasar Realty Partners L.P., Appellant.
    Submitted April 25, 2016;
    decided June 14, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. James Kalamaras, Appellant, v Michael Sposato, Respondent.
    Submitted April 25, 2016;
    decided June 14, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. James Kalamaras, Appellant, v Michael Sposato, Respondent.
    Submitted April 25, 2016;
    decided June 14, 2016
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    The People of the State of New York ex rel. Frank Monte, Appellant, v Warden et al., Respondents.
    Submitted April 18, 2016;
    decided June 14, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief etc. dismissed as academic.


text:
    The People of the State of New York ex rel. Eric Smith, Appellant, v Susan Kickbush, Respondent.
    Submitted May 9, 2016;
    decided June 14, 2016
   Motion for leave to appeal dismissed upon the ground that it does not lie from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Pittsford Canalside Properties, LLC, Respondent, v Village of Pittsford et al., Appellants, Village of Pittsford Planning Board et al., Respondents.
    Submitted April 25, 2016;
    decided June 14, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Mirta Ramos, Appellant, v Renata Vanja Weber, M.D., et al., Respondents.
    Submitted May 2, 2016;
    decided June 14, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 1127 (2016)].

Judge Garcia taking no part.


text:
    In the Matter of Dean A. Reskakis, a Disbarred Attorney, Appellant. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, Respondent.
    Submitted May 16, 2016;
    decided June 14, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Armand Retamozzo, Appellant, v Diana Friedland et al., Respondents.
    Submitted May 16, 2016;
    decided June 14, 2016
   Motion for reargument denied [see 27 NY3d 947 (2016)].


text:
    Willie Spirles, Appellant, v State of New York, Respondent.
    Submitted May 16, 2016;
    decided June 14, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of State of New York, Respondent, v Walter J.R., Appellant.
    Submitted May 2, 2016;
    decided June 14, 2016
   Motion for reargument of motion for leave to appeal denied [see 27 NY3d 960 (2016)].


text:
    In the Matter of Yan Ping Xu, Appellant, v New York City Department of Health and Mental Hygiene, Respondent.
    Submitted May 16, 2016;
    decided June 14, 2016
   Motion for reargument of motion for leave to appeal denied [see 27 NY3d 902 (2016)].


text:
    [55 NE3d 441, 35 NYS3d 681]
    Littleton Construction Ltd., Appellant, v Huber Construction, Inc., et al., Respondents.
    Argued May 5, 2016;
    decided June 14, 2016

      APPEARANCES OF COUNSEL

      Freíd and Klavoon, Williamsville (Adam B. Conners and Wayne I. Freid of counsel), for appellant.

      Phillips Lytle LLP, Buffalo (Michael B. Powers and William J. Simon of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff commenced this proceeding against defendants Huber Construction, Inc. and Littleton/Huber Joint Venture seeking, as relevant to this appeal, a portion of the management fees collected by Huber as part of the payment for projects completed by the parties in connection with the joint venture. Defendants moved for summary judgment dismissing the complaint. Resolution of the motion rested on the validity and interpretation of various documents alleged to govern the parties’ relationship. Supreme Court partially granted defendants’ motion to the extent that it dismissed all causes of action except the one seeking recovery of a portion of the management fees. The Appellate Division, with two Justices dissenting, modified Supreme Court’s order by dismissing the complaint in its entirety (125 AD3d 1404 [4th Dept 2015]). Plaintiff appealed to this Court as of right (see CPLR 5601 [a]).

Regardless of which party created the joint venture’s purported operating agreement, defendants met their initial burden of establishing that such document was not executed by Huber. Plaintiff failed to raise a triable issue of fact in response. The joint venture, therefore, could not be governed by the terms of that unenforceable document (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]).

With the operating agreement invalidated, the governing contract was the parties’ memorandum of understanding, which was indisputably signed by both parties. If a contract is complete, clear and unambiguous, it must be enforced according to its plain meaning (see Beardslee v Inflection Energy, LLC, 25 NY3d 150, 157 [2015]; Schron v Troutman Sanders LLP, 20 NY3d 430, 432 [2013]). The memorandum of understanding plainly provides for a 9% management fee to Huber, which Huber was not required to share with plaintiff. Thus, under the terms of that agreement, defendants were entitled to summary judgment dismissing plaintiff’s cause of action seeking a portion of the management fees. Plaintiff’s remaining arguments are lacking in merit.

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein and Garcia concur; Judge Fahey taking no part.

Order affirmed, with costs, in a memorandum.


author: Rivera, J.

text:
    [55 NE3d 1027, 36 NYS3d 54]
    The People of the State of New York, Respondent, v Martesha Davidson, Appellant.
    Argued April 26, 2016;
    decided June 7, 2016

      APPEARANCES OF COUNSEL

      Robert R. LaLonde, Ithaca, for appellant.

      Patricia Gunning, Special Prosecutor and Inspector General, Delmar (Robin A. Forshaw of counsel), for respondent.

      Eric T Schneiderman, Attorney General, New York City (.Barbara D. Underwood, Anisha S. Dasgupta and Andrew W. Amend of counsel), for Attorney General of the State of New York, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of County Court should be affirmed.

In 2012, the legislature enacted article 20 of the Executive Law as part of the “Protection of People with Special Needs Act” to protect those “who are vulnerable because of their reliance on professional caregivers to help them overcome physical, cognitive and other challenges” (L 2012, ch 501, §§ 1, 2). Specifically, the enactment calls for the creation of a “justice center” — the primary purpose of which is to protect “vulnerable persons” as defined in Executive Law § 550 (5). The center was granted “concurrent authority with district attorneys to prosecute abuse and neglect crimes committed against [vulnerable] persons,” thereby bolstering the State’s ability to respond to such crimes “without creating additional burdens on local law enforcement” (L 2012, ch 501, § 2, part A, § 1).

In carrying out that task, Executive Law § 552 (2) (a) mandates that the justice center “employ a special prosecutor” who has

“the duty and power: (i) to investigate and prosecute offenses involving abuse or neglect. . . ; and (ii) to cooperate with and assist district attorneys and other local law enforcement officials in their efforts against such abuse or neglect of vulnerable persons.”

Pursuant to that law, the special prosecutor

“may, after consultation with the district attorney . . . , attend in person any term of the county court or supreme court having appropriate jurisdiction, including an extraordinary special or trial term of the supreme court. . . , or appear before the grand jury thereof, for the purpose of managing and conducting in such court or before such jury a criminal action or proceeding concerned with an offense where any conduct constituting or requisite to the completion of or in any other manner related to such offense involved the abuse or neglect of a vulnerable person ... In such case, such special prosecutor . . . may exercise all the powers and perform all the duties in respect of such actions or proceedings which the district attorney would otherwise be authorized or required to exercise or perform” (Executive Law § 552 [2] [c]).

Defendant, an employee of the Finger Lakes Residential Center, was charged in Town Court with endangering the welfare of a child (Penal Law § 260.10 [1]) and harassment in the second degree (Penal Law § 240.26), arising from an incident that allegedly occurred at the Center between defendant and a 14-year-old resident. Defendant moved to dismiss the misdemeanor information pursuant to CPL 170.30 (1) (f) on the grounds that the special prosecutor did not have the authority to prosecute offenses in local criminal courts and that such authority was limited to prosecuting abuse and neglect cases in County and Supreme Court as evidenced by Executive Law § 552 (2) (c). Town Court agreed, holding that the language of section 552 (2) (c) served as a jurisdictional impediment to the special prosecutor’s ability to appear and prosecute abuse and neglect cases in local criminal courts.

On appeal, County Court reversed and remanded to Town Court for further proceedings, holding that rather than limiting the special prosecutor’s power, section 552 (2) (c) constituted “an additional grant of authority permitting participation in and prosecution of felonies before the grand jury and the appropriate superior court.” County Court did not address defendant’s constitutional argument since it had not been raised before Town Court and therefore not preserved for appellate review; nor did it reach defendant’s further contention that the special prosecutor’s failure to consult with the district attorney’s office before appearing in local criminal court was a fatal flaw mandating dismissal of the charges. In light of this, this Court’s review is limited solely to the question whether Executive Law § 552 (2) (c) prohibits the special prosecutor from prosecuting abuse and neglect cases in local criminal courts.

County Court’s order should be affirmed. There is no indication from the statute that the special prosecutor’s powers are limited by section 552 (2) (c). That section merely sets forth the requirement that the special prosecutor consult with the district attorney of the pertinent county should the special prosecutor wish to appear in County Court or Supreme Court, or before the grand jury, for the purposes of managing or conducting before such court or grand jury a criminal action or proceeding involving the abuse or neglect of a vulnerable person. There is no indication that the statute governs proceedings in local courts at all.

Rivera, J.

(dissenting). In this case the Court must determine the powers of the Special Prosecutor for the Protection of People with Special Needs, including whether the Special Prosecutor has full and complete prosecutorial authority independent from the District Attorney. Defendant claims that Special Prosecutors have no authority under Executive Law § 552 (2) (c) to initiate or pursue a criminal proceeding against her in Town Court because that provision only allows the Special Prosecutor to appear before County and Supreme Court and a grand jury. Defendant further argues that an unelected Special Prosecutor may not be appointed to appear in a criminal matter without input from the District Attorney, who in her case declined to prosecute, thus foreclosing any action by the Special Prosecutor here. As a matter of law, I agree with the majority that defendant reads into section 552 (2) (c) a proscription on the Special Prosecutor’s authority and Town Court’s jurisdiction which is unsupported by the statutory text. However, I disagree that an affirmance is appropriate in this case.

The legislature may not transfer or diminish the core responsibilities and prosecutorial powers of a constitutionally elected officer, such as a District Attorney, through appointment of an unelected official (see People ex rel. Wogan v Rafferty, 208 NY 451, 456 [1913]; see also NY Const, art V, § 1 [the “attorney-general shall be chosen at the . . . general election”]; art XIII, § 13 [a] [“In each county a district attorney shall be chosen by the electors once in every three or four years as the legislature shall direct”]). The District Attorney has the ultimate responsibility for prosecuting crimes and offenses (People v Soddano, 86 NY2d 727, 728 [1995]), and the sole discretion to conduct all phases of criminal prosecutions (Matter of Soares v Carter, 25 NY3d 1011, 1013 [2015]).

Thus, where the legislature creates the office of an appointed special prosecutor for criminal matters involving the safety of a statutorily classified population dependent on state services, and also prohibits interference with the investigatory and pros-ecutorial duties of the District Attorney, such special prosecutor may only appear in accordance with the authorizing statute, upon consent of the local District Attorney. The record before us is unclear on whether such consent was obtained, and therefore the matter should be remitted for further proceedings to resolve this issue.

I.

The legislature enacted the Protection of People with Special Needs Act “to strengthen and standardize the safety net for vulnerable persons, adults and children alike, who are receiving care from New York’s human service agencies and programs . . . [due to] disabilities or other life circumstances” (Protection of People with Special Needs Act, L 2012, ch 501, § 2, part A, § 1 [legislative findings and purpose]). The act “creates a set of uniform safeguards, to be implemented by a justice center whose primary focus will be on the protection of vulnerable persons” (id.). The legislature intended that “the justice center will have concurrent authority with district attorneys to prosecute abuse and neglect crimes committed against such persons” in order “[t]o bolster the ability of the state to respond more effectively to abuse and neglect of vulnerable persons, without creating additional burdens on local law enforcement” (id.).

Pursuant to the statutory design, the Justice Center is housed within the executive branch, and headed by an executive director appointed by the Governor, by and with the advice and consent of the senate (Executive Law § 551 [1]). In furtherance of the legislative purpose to provide additional resources to stem abuse and neglect crimes, the act mandates the formation of a prosecution unit within the Justice Center, and that the Justice Center employ “a special prosecutor and inspector general” (Executive Law § 552 [2] [a]). These prosecutorial staff members are unelected officials appointed by the Governor, without senate approval (id.).

In section 552 (2) (a) the act provides that the Special Prosecutor has “the duty and power: (i) to investigate and prosecute offenses involving abuse or neglect . . . committed against vulnerable persons by custodians . . . and (ii) to cooperate with and assist district attorneys and other local law enforcement officials in their efforts against such abuse or neglect of vulnerable persons” (Executive Law § 552 [2] [a]). This grant of power is subordinate to the existing authority of District Attorneys, and is explicitly limited by the legislative mandate that “nothing herein shall interfere with the ability of district attorneys at any time to receive complaints, [and] investigate and prosecute any suspected abuse or neglect” (id.).

In the same vein, in accordance with section 552 (2) (b) the Special Prosecutor must give prior notice to the local District Attorney before applying for a search warrant, except in exigent circumstances, in which case notice must be provided “as soon thereafter as is practicable” (Executive Law § 552 [2] [b]). Most significantly, under section 552 (2) (c) the Special Prosecutor “[may] attend in person any term of the county court or supreme court having appropriate jurisdiction ... or appear before the grand jury thereof, for the purpose of . . . [conducting] a criminal action or proceeding” for any action related to an offense that involved the abuse or neglect of a vulnerable person, only “after consultation with the district attorney as to the time and place of such attendance or appearance” (Executive Law § 552 [2] [c]). Thus, contrary to defendant’s argument, under the act there is no wholesale prohibition on the Special Prosecutor’s authority to pursue criminal matters in Town Court. Further, and apart from the lack of textual support for defendant’s argument, her construction of section 552 (2) (c) would undermine the legislative criminal justice goal of providing greater human and programmatic resources as a means to enhance prosecutions across the state, without the added burden on local law enforcement (see L 2012, ch 501, § 2, part A, § 1 [legislative findings]). However, while I therefore agree with the majority’s conclusion that a Special Prosecutor may appear and pursue criminal matters in Town Court, this does not end our inquiry. Defendant’s arguments about the role of Special Prosecutors under the act necessitates this Court determine the scope of their power.

II.

A.

Resolution of defendant’s appeal requires this Court to further consider the knotty question of whether the legislature may create an unelected, Governor-appointed Special Prosecutor, independent of the local District Attorney. Defendant originally raised this issue when she claimed, during her initial argument to Town Court, that “[u]nder the New York State Constitution the only entity with the authority to prosecute criminal matters is the county district attorney.” Defendant continues to assert that where neither the District Attorney nor Attorney General is the appointed Special Prosecutor, appointment of any other person is unlawful absent input from the local District Attorney, who serves as the elected prosecutor for the County, in accordance with County Law § 700 (1) and the State Constitution, article XIII, § 13. She distinguishes her case from one involving appointment of the Attorney General because, unlike the Special Prosecutor created by the act, the Attorney General is an elected official who historically had a measure of prosecutorial authority independent of local prosecutors, and thus such appointment avoided conflict with local home rule. To be clear, defendant does not argue that the act is unconstitutional, only that our legal system abhors unchecked prosecutorial authority, and in order to protect the population from the caprice and zealotry of an unelected Special Prosecutor there must be prescriptions on unbridled power.

The Attorney General, appearing as amicus curiae, goes further, and argues, as a constitutional matter, that the Special Prosecutor may proceed with defendant’s prosecution only with the local District Attorney’s consent. According to the Attorney General, the legislature may not transfer the essential pros-ecutorial function of an elected constitutional officer to persons selected by appointment. Further, given that the District Attorney has the ultimate responsibility for whether and who to prosecute, those powers cannot be diminished by assignment to the Special Prosecutor. Nevertheless, the Attorney General argues that the act may be construed to preserve the District Attorney’s constitutional power if we interpret the act’s language and purpose to require consent.

In response, the Justice Center claims it has complete independence from the District Attorney, and may prosecute at will, based on the legislature’s intent that Special Prosecutors have concurrent authority with the District Attorney, and the act’s specific grant of power to investigate and prosecute. The Justice Center notes that the legislature’s choice to amend CPL 1.20 (32) to include the Special Prosecutor within the definition of District Attorney is further evidence of the intent to place the Special Prosecutor on par with the County District Attorneys. The Justice Center specifically argues that it is the legislature which determines the authority of District Attorneys and may appoint non-District Attorneys to prosecute, including non-elected officials, and has done so in the past.

The Justice Center’s arguments are unpersuasive. Applicable state constitutional provisions and our case law explaining the historical prosecutorial authority of the District Attorney and Attorney General do not support the sweeping independent power advocated by the Justice Center. Indeed, if the act were construed to permit the gubernatorial appointment of a non-elected special prosecutor, independent of the District Attorneys and with unfettered prosecutorial power, such legislative delegation would be unconstitutional.

B.

“Where the Constitution establishes a specified office, or recognizes its existence, and prescribes the manner in which it shall be filled, the legislature may not transfer any essential function of the office to a different officer chosen in a different manner” (People ex rel. Wogan v Rafferty, 208 NY 451, 456 [1913] [citation omitted]). Notwithstanding legislative regulation over some aspect of the duties of constitutional officers, the legislature cannot “depriv[e] them of a substantial attribute of the office” (id.). To permit such a trespass would sanction an inherently unconstitutional act because

“[w]hen the legislature . . . assumes the power to take from a constitutional officer the substance of the office itself, and to transfer it to another who is to be appointed in a different manner and to hold the office by a different tenure than that which was provided for by the Constitution, it is not a legitimate exercise of the right to regulate the duties or emoluments of the office, but an infringement upon the constitutional mode of appointment” (id. at 456-457 [internal quotation marks omitted]; see also Haggerty v City of New York, 267 NY 252, 258 [1935] [legislature could control and limit salaries of a municipal court because it was not, and did not have all the powers of, a constitutional court]).

The District Attorney and Attorney General are constitutional officers, chosen by election (see NY Const, art V, § 1; art XIII, § 13) The Constitution is silent as to their duties, and “does not specify or allocate the powers of the respective offices” (People v Gilmour, 98 NY2d 126, 130 [2002]), although it designates the District Attorney as a law enforcement officer (NY Const, art XIII, § 13). However, this Court has recognized the essential powers of the District Attorney and Attorney General, based on their respective prosecutorial roles (Gilmour, 98 NY2d at 130-133).

Historically, both the District Attorney and Attorney General were responsible for the prosecution of crimes in New York State (id. at 130). While the Attorney General’s original exclusive general prosecutorial authority no longer exists, it has instead given way to specific statutory authorizations (id. at 131). For example, the Attorney General has power to prosecute under Executive Law § 63 and General Business Law §§ 347, 358 (see Executive Law § 63 [2]-[3] [allowing the Attorney General to assume prosecutorial responsibly for local crimes at the request of the Governor]; General Business Law §§ 347 [authority to prosecute certain crimes], 358 [authority to prosecute securities fraud]). In contrast, under County Law § 700 (1) District Attorneys are authorized to prosecute “crimes and offenses cognizable by the courts of the count [ies]” (Gilmour, 98 NY2d at 127).

The Court has time and again defined the essential characteristic of the District Attorney’s prosecutorial authority as the “discretionary power to determine whom, whether and how to prosecute” (Matter of Haggerty v Himelein, 89 NY2d 431, 436 [1997], quoting Matter of Schumer v Holtzman, 60 NY2d 46, 52 [1983]). The Court explained in Schumer that while, for example, a District Attorney may “delegate duties to her assistants . . . she may not transfer the fundamental responsibilities of the office to them” (60 NY2d at 53 [emphasis added]). The Court stated in Haggerty that “the essence of a District Attorney’s constitutional, statutory and common-law prosecuto-rial authority is the discretionary power to determine whom, whether and how to prosecute [a criminal] matter, the responsibility and accountability for which is not freely transferable to anyone else” (89 NY2d at 436 [internal quotation marks and citation omitted]). We recently reaffirmed that the “authority to compel the prosecution of criminal actions ... is solely within the broad authority ... of the district attorney’s executive power to conduct all phases of criminal prosecution” (Soares, 25 NY3d at 1013).

This Court’s decision in Soddano does not put in question this fundamental understanding of the prosecutorial function of the District Attorney. In Soddano, the Court held that County Law § 700 (1) did not require the personal presence of the local District Attorney at every hearing in the county, and, concluded in accordance with a prior line of cases that “the prosecution of petty crimes or offenses may be delegated to subordinates and other public or administrative officers and even to private attorneys” (86 NY2d at 728, citing People v DeLeyden, 10 NY2d 293, 294 [1961], People v Czajka, 11 NY2d 253, 254 [1962]). Nevertheless, District Attorneys “retain the ultimate, nondelegable responsibility for prosecuting all crimes and offenses” and may allow others to appear on their behalf only “so long as they are kept aware of all the criminal prosecutions in the county” (id.). Thus, while County Law § 701 (1) and this Court’s case law allow for ad hoc prosecutions by non-district attorneys, our precedent and this state’s constitutional principles do not allow the legislature to create a standing office empowered to handle a category of designated criminal matters related to the safety of a targeted class of persons, as is the case with the Special Prosecutor. Further, the Justice Center’s prosecutors do not have independent prosecutorial authority because under Soddano delegation is permissible only when the District Attorney retains final authority and ultimate responsibility.

Our jurisprudence leads to the conclusion that the legislature may choose to allocate law enforcement powers among constitutional officers, and may permit non-District Attorneys to prosecute certain offenses, but it cannot diminish the essential discretionary prosecutorial power, which we have defined as the choice whether and who to prosecute. In cases of statutory appointments, other than in cases involving the Attorney General, the District Attorney must retain ultimate responsibility for the prosecution.

When interpreting statutes we must make every effort to do so in a manner that avoids a constitutional conflict (Matter of Lorie C., 49 NY2d 161, 171 [1980]; Rector, Church Wardens & Vestrymen of St. Bartholomew’s Church v Committee to Preserve St. Bartholomew’s Church, 84 AD2d 309, 315-316 [1st Dept 1982]). We can do so in this case because the act provides significant limitations on the power of the Special Prosecutor, and requires that the Special Prosecutor exercise authority in cases where the District Attorney’s powers are neither impeded nor undermined. Contrary to the Justice Center’s view, the Special Prosecutor is not on equal footing with the local District Attorney.

First, the act provides that “nothing herein shall interfere with the ability of district attorneys at any time to receive complaints, investigate and prosecute any suspected abuse or neglect” (Executive Law § 552 [2] [a]). This means that the Special Prosecutor’s authority is limited by the choices exercised by the District Attorney. For example, a Special Prosecutor who, without consent, seeks to prosecute an individual that the District Attorney has declined to prosecute would be interfering with the prosecutorial discretion of that District Attorney. Similarly, a prosecution unapproved by the District Attorney may very well interfere with an ongoing investigation — an outcome counter to the legislative intent.

Second, the act does not provide the Special Prosecutor with complete independence because it requires notification to the District Attorney of any warrant application, and also mandates that the Special Prosecutor consult with the District Attorney before appearing in County and Supreme Court or at a grand jury. Although nowhere in the act does it use the word “consent” or state that the District Attorney must give prior consent, given that the act clearly protects the authority of the District Attorney from any interference by the Special Prosecutor, the only manner by which interference can be avoided is by notice, consultation and consent. While the legislative findings reference concurrent authority of the Special Prosecutor and District Attorney, this prefatory language is not in tension with a construction of the act that requires a local District Attorney’s consent. The act is properly understood as granting the Special Prosecutor the full range of prosecutorial power available to the District Attorney, once the District Attorney has consented, and so long as the District Attorney retains ultimate responsibility to prosecute (see Soddano, 86 NY2d at 728). Nor does the inclusion of the Special Prosecutor within the definition of District Attorney, as set forth in CPL 1.20 (32), affect this analysis. That section recognizes that the Special Prosecutor’s authority to act as a District Attorney only applies within the confines of the act, and, as discussed, the act requires that the District Attorney consent to any prosecution.

As explained above, the act may be interpreted in a manner that is congruent with the constitution and our case law. Specifically, because the District Attorney’s essential prosecuto-rial power to determine whether, who and how to prosecute may not be diminished or transferred to an unelected official, the unelected Special Prosecutor may appear on criminal matters so long as the District Attorney does not object, and retains ultimate responsibility for any prosecution handled by the Special Prosecutor.

In contrast, an independent Special Prosecutor, in the nature described by the Justice Center, would violate the constitution by transferring the essential power to choose whether and who to prosecute from elected District Attorneys to a non-elected official. This would diminish the District Attorneys’ core responsibilities as constitutional officers to prosecute crimes and to choose what crimes to prosecute.

There is an important governmental public policy of ensuring independence for those charged with absolute discretion to pursue criminal matters. This policy furthers our democratic system of checks and balances and reaffirms this Court’s prior recognition of the “awesome and sometimes coercive force of the State” (People v Rogers, 48 NY2d 167, 173 [1979]). This “awesome power” is illustrated by the State’s ability to deprive individuals of their liberty and freedom. However, it is equally present when the State charges an individual with a crime. Indeed, the mere act of bringing charges can have profound and far-reaching effects on a person. A person’s reputation can be ruined, employment terminated, and finances placed in jeopardy, regardless of whether that person is later acquitted or the charges are dropped. Under our constitution and case law the “awesome power” of unchecked prosecutorial authority requires public oversight and cannot be held by an unelected special prosecutor.

III.

The matter should be remanded to determine whether the District Attorney consented to defendant’s prosecution. If consent was provided then the prosecution may proceed in Town Court. Otherwise, the Special Prosecutor may not unilaterally prosecute defendant.

Judges Pigott, Stein, Fahey and Garcia concur. Judge Rivera dissents in an opinion in which Judge Abdus-Salaam concurs; Chief Judge DiFiore taking no part.

Order affirmed, in a memorandum.

       The dissent addresses issues that are not before us and we do not consider them given the procedural posture of the case.

      . The majority reaches its conclusion notwithstanding that, according to my colleagues, “[tjhere is no indication that the statute governs proceedings in local courts at all” (majority mem at 1086). This suggested possible alternative ground for the Special Prosecutor’s authority ignores the text and intent of the act, which is to increase resources to enhance prosecution of abuse and neglect crimes by empowering the Special Prosecutor to investigate and prosecute these matters (see Executive Law § 552 [2] [a] [“such special prosecutor shall have the duty and power ... to investigate and prosecute offenses involving abuse or neglect . . . committed against vulnerable persons . . . and ... to cooperate with and assist district attorneys and other local law enforcement officials”]; see also Protection of People with Special Needs Act, L 2012, ch 501, § 2, part A, § 1 [legislative findings and purpose] [the act “creates a set of uniform safeguards, to be implemented by a justice center whose primary focus will be on the protection of vulnerable persons”]). Moreover, the comprehensive scope of the Justice Center’s authority on matters involving the population affected by the act belies the narrow interpretation suggested by the majority (see L 2012, ch 501, § 2, part A, § 1 [legislative findings and purpose] [“(t)o bolster the ability of the state to respond more effectively to abuse and neglect of vulnerable persons, without creating additional burdens on local law enforcement, the justice center will have concurrent authority with district attorneys”]).
      Of course, if the majority were correct, the act would still be interpreted to require consent from the District Attorney. This Court has expressly held that while a District Attorney can delegate the prosecution of petty crimes or offenses, the District Attorney must “retain the ultimate, nondelegable responsibility for prosecuting” such crimes (see Soddano, 86 NY2d at 728). Thus, if the act did not apply to Town Court then the District Attorney retained all prosecutorial authority with regard to that court. Consequently, the Justice Center Special Prosecutor could only prosecute an individual in Town Court with the consent of the District Attorney. Consent which is not evidenced from the face of the record.

      . Regardless of whether defendant now chooses to focus her argument on the statutory text of the act she specially asserted in her appeal to County Court that the act is unconstitutional. Moreover, for the reasons I discuss we are squarely presented with questions related to the authority of the Special Prosecutor as it impacts on the constitutional nondelegable powers of District Attorneys.

      . In the courts below, defendant failed to notify the Attorney General that she was asserting a constitutional challenge to the act, as required by Executive Law § 71 (1), and neither Town nor County Court ordered such notice. However, on appeal to this Court, the Attorney General became aware of this matter without the statutory notification, and appears as amicus in accordance with section 500.12 of onr rules (see Rules of Prac of Ct of Appeals [22 NYCRR] § 500.12 [e]).

      . In the alternative, the Justice Center agrees that any constitutional impediment to the exercise of prosecutorial authority may be resolved by authorizing the Special Prosecutor to act with the consent of the local District Attorney.

      . On this appeal the Court need not consider the nature of the District Attorney’s involvement in a criminal action initiated by the Special Prosecutor.


text:
    [55 NE3d 1025, 36 NYS3d 52]
    The People of the State of New York, Appellant, v Shane Morris, Respondent.
    Decided June 7, 2016

      APPEARANCES OF COUNSEL

      Richard A. Brown, District Attorney, Kew Gardens (Sharon Y. Brodt of counsel), for appellant.

      Lynn W.L. Fahey, Appellate Advocates, New York City (David P. Greenberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to that Court for consideration of the facts and issues raised but not determined on the appeal to that Court.

During deliberations, the jury sent a note requesting a read-back of the testimony of a prosecution witness. The trial court did not discuss the content of the note or the court’s intended response with counsel on the record before recalling the jury into the courtroom, but the court read the precise content of the note into the record in the presence of counsel, defendant, and the jury. For reasons unknown, although the jury did not limit or narrow its readback request, it is undisputed that only the witness’s direct examination testimony was read to the jury and that the witness’s cross-examination testimony was not. Counsel did not object, either to the trial court’s procedure or to its response to the note.

On appeal, the Appellate Division held that two mode of proceedings errors had occurred and that each error therefore required reversal despite counsel’s failure to object (120 AD3d 835 [2d Dept 2014]). First, the Appellate Division held that the trial court’s failure to discuss the note and the court’s intended response with counsel before recalling the jury into the courtroom constituted a mode of proceedings error (id. at 836). That holding was incorrect. The trial court read the precise content of the jury’s note into the record in the presence of counsel, defendant, and the jury. Contrary to defendant’s contention, the court did not mislead counsel about the content of the note. The court therefore complied with its meaningful notice obligations under CPL 310.30, and counsel was required to object in order to preserve for appellate review any challenge to the trial court’s procedure (see People v Nealon, 26 NY3d 152, 160-162 [2015]).

Second, the Appellate Division held that the trial court committed a separate mode of proceedings error by failing to fulfill its responsibility to provide a meaningful response to the jury’s inquiry (120 AD3d at 836-837). We disagree. We have long held that any claim of error in a trial court’s supplemental instructions to a deliberating jury must be preserved for appellate review with a timely objection (see e.g. People v Keschner, 25 NY3d 704, 721-722 [2015]; People v Duncan, 46 NY2d 74, 80 [1978], rearg denied 46 NY2d 940 [1979], cert denied 442 US 910 [1979]). That same reasoning applies to the circumstances of this case.

The trial court’s alleged failure to provide a meaningful response to the jury’s note does not constitute a mode of proceedings error for which no preservation is required (see People v Mack, 27 NY3d 534 [2016] [decided herewith]). Counsel had meaningful notice of the precise content of the jury’s note and was in the courtroom as the readback was conducted. Counsel was therefore aware that the court had failed to read the witness’s cross-examination testimony. Counsel’s knowledge of the precise content of the note and of the court’s actual response, or lack thereof, removes the claimed error from the very narrow class of mode of proceedings errors for which preservation is not required (see id.). “[C]ounsel’s silence at a time when any error by the court could have been obviated by timely objection renders the claim un-preserved and unreviewable here” (People v Starling, 85 NY2d 509, 516 [1995]).

Inasmuch as defendant failed to preserve his claims regarding the alleged errors, we have no jurisdiction to consider them (see NY Const, art VI, § 3 [a]; People v Kelly, 5 NY3d 116, 119-120 [2005]).

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed and case remitted to the Appellate Division, Second Department, for consideration of the facts and issues raised but not determined on the appeal to that Court, in a memorandum.


text:
    [55 NE3d 1036, 36 NYS3d 63]
    The People of the State of New York, Respondent, v Baasil Reynolds, Appellant.
    Argued April 27, 2016;
    decided June 7, 2016

      APPEARANCES OF COUNSEL

      Richard M. Greenberg, Office of the Appellate Defender, New York City (Michael S. Woodruff and Margaret E. Knight of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City ("Vincent Rivellese and Christopher R Marinetti of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was charged by indictment with criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]), and menacing in the second and third degrees (Penal Law §§ 120.14 [1]; 120.15). After having been incarcerated for approximately six months during the pendency of his case, defendant accepted a plea agreement whereby he would plead guilty to criminal possession of a weapon in the third degree, a felony, and his sentencing would be delayed to give him a chance to withdraw his plea and replead to a lesser charge — criminal possession of a weapon in the fourth degree, a misdemeanor — and be sentenced to time served if he complied with certain conditions. If defendant failed to comply with these conditions, he would not be permitted to withdraw his guilty plea to the felony and would be sentenced to 2 to 4 years.

The plea conditions required defendant to first, be remanded to the New York City Department of Correction for an additional six months and, second, be released on his own recognizance for a set period of time prior to the sentencing date, during which time he could not be arrested or alleged to have violated an order of protection in favor of the complainants. Defendant completed the additional six months in jail, satisfying one condition of his plea agreement. After being released for over a year, however, defendant was arrested on the day of his sentencing. After the court held a hearing pursuant to People v Outley (80 NY2d 702 [1993]), it imposed the promised 2-to-4-year prison sentence on the existing felony conviction.

Defendant failed to preserve his claim that his plea of guilty should be vacated because it was conditioned on an alleged illegal presentence condition that he remain incarcerated for an additional six months prior to sentencing. As we recently stated in People v Williams (27 NY3d 212, 214 [2016]), “[w]hen a defendant pleads guilty to a crime, he or she generally must move to withdraw the plea or otherwise object to its entry prior to the imposition of sentence to preserve a challenge to the validity of the plea for appellate review.” While this Court has recognized an “illegal sentence” as “a narrow exception to the preservation rule” (see People v Nieves, 2 NY3d 310, 315 [2004] [internal quotation marks and citation omitted]), the Appellate Division correctly held that the plea was not conditioned on an illegal sentence, nor was the actual sentence imposed illegal. Contrary to the dissent’s view, defendant’s case is procedurally distinguishable from People v Avery (85 NY2d 503, 504 [1995]) and People v Rodney E. (77 NY2d 672, 673 [1991]) (dissenting op at 1103-1104) in an important respect. In those cases, the issue was violation of an allegedly illegal presentencing condition that triggered defendant’s sentence. Here, defendant’s sentence was premised on a violation of an admittedly lawful presentence condition — he could not be arrested — and the issue of the propriety of the plea could certainly have been raised prior to sentencing. Thus, defendant’s challenge to the presentencing incarceration, which was not part of the sentence, is subject to the preservation rule (see Williams, 27 NY3d at 224).

With respect to the Outley hearing, the Appellate Division correctly concluded that the trial court’s finding and determination comported with the standard articulated in People v Outley (80 NY2d 702 [1993]). There, we held that “proof that defendant actually committed the postplea offense which led to the arrest is not necessary” (80 NY2d at 713). We further noted:

“When an issue is raised concerning the validity of the postplea charge or there is a denial of any involvement in the underlying crime, the court must conduct an inquiry at which the defendant has an opportunity to show that the arrest is without foundation. The nature and extent of the inquiry — whether through a summary hearing pursuant to CPL 400.10 or some other fair means — is within the court’s discretion. The inquiry must be of sufficient depth, however, so that the court can be satisfied — not of defendant’s guilt of the new criminal charge but of the existence of a legitimate basis for the arrest on that charge.” (Id. [citations omitted].)

Here, the judge heard testimony from the complainant and the arresting officer. Defendant also testified that the complainant had been the aggressor and had attacked him. The judge found that there was a legitimate basis for defendant’s arrest, implicitly rejecting defendant’s version of events, and that finding was adopted by the sentencing court. Thus, because defendant was given an opportunity to testify to his exculpatory explanation, and his testimony was evidently discredited by the court, the nature of the inquiry was sufficient under our Outley standard.

Rivera, J.

(dissenting). A plea agreement conditioned on defendant’s presentence “interim incarceration” lacks statutory authority and renders the plea invalid. Based on our case law, I disagree with the majority that defendant’s claim is unpre-served for our review, and on the merits I conclude the plea should be vacated.

At the time of his plea agreement, defendant had been incarcerated for six months. In accordance with the terms of the agreement, after defendant pleaded guilty to criminal possession of a weapon in the third degree, a class D felony, and menacing in the second degree, a class A misdemeanor, the court would adjourn his sentencing so that he could complete several conditions, including an additional six months of incarceration. The prosecutor explained to defendant that this would result in an aggregate incarceratory period of “a hard year. ‘Hard,’ meaning a full year in jail.” The other conditions required that upon his release, defendant had to “stay out of trouble” for a year, not be arrested, and also obey the orders of protection entered against him. Defendant would have to appear in court at every adjournment, approximately every three months, for the course of the year. If defendant complied with the terms, the court would allow him to withdraw his guilty plea on the felony charge and sentence him to the lesser offense of the misdemeanor charge alone. If he failed to comply with the plea terms he would be sentenced as a second felony offender to 2 to 4 years’ imprisonment on the felony charge.

The court described the arrangement as “a little unorthodox” and explained to defendant that

“[i]t’s sort of like probation but isn’t probation. In a sense, it’s better than a probationary sentence would be because it’s only — you only have to stay out of trouble for a year.
“On the other hand, it’s worse than a probationary sentence would be because you have to be in jail for a year until you’re released. . . .
“Let me correct one thing I said. I said the - IT’S [sic] sort of like probation but it isn’t because you don’t have a probation officer that you need to report to. There’s not a probation officer who’s going to come to wherever it is you’re living and make bed checks. It’s not a probation officer who you have to tell where it is that you’re living. That’s where you’re living?”

Defendant served the additional six months in jail and was released in accordance with the terms of his plea. On the day of his scheduled sentencing, defendant was arrested. The court subsequently concluded that he violated the terms of the plea, and defendant was sentenced to an indeterminate term of 2 to 4 years on the felony.

Defendant asserts that his plea is invalid because the court lacked authority to impose a presentence condition of incarceration. Defendant may pursue this claim on direct appeal, even though he did not object to the condition or move to withdraw his plea, because our rules of preservation do not apply to claims of unlawful “interim” conditions.

Defendant’s case is procedurally indistinguishable from People v Rodney E. (77 NY2d 672, 673 [1991]) and People v Avery (85 NY2d 503, 504 [1995]), wherein the Court reached the merits of the defendants’ challenges to their respective plea conditions, notwithstanding their failure to object prior to sentencing. Indeed, in describing the proceedings below, the Avery Court noted that the Appellate Division erroneously concluded the issue was unpreserved, citing Rodney E. (Avery, 85 NY2d at 505). Like defendant here, the defendants in Rodney E. and Avery both claimed that the sentencing courts lacked authority to impose presentencing conditions. In Rodney E., the defendant was placed on “interim probation” (77 NY2d at 673), and in Avery the defendant was required to participate in a private drug rehabilitation program before sentencing (85 NY2d at 504). Thus, this Court has previously rejected a preservation barrier to claims that a presentencing condition is illegal, and therefore we may consider defendant’s challenge to the legality of his post-conviction, presentence period of “interim” incarceration.

Turning to the merits, a court has discretion to impose an appropriate sentence and to structure a plea on conditions that “do not violate any statute or contravene public policy” (Avery, 85 NY2d at 507 [citation omitted]). Here, the six months of presentence incarceration lacks a statutory basis, and constitutes a strictly penal sanction unrelated to any legislatively-approved conditions intended to promote a defendant’s lawful conduct and rehabilitation.

Pursuant to CPL 400.10 (4), “[a]fter conviction and prior to sentencing the court may adjourn sentencing to a subsequent date and order the defendant to comply with any of the conditions” set forth in Penal Law § 65.10 (2) (a)-(f) and (1). The presentence incarceration imposed by the court here is not one of the specific conditions provided for in section 65.10 (2) (a)-(f). Those conditions relate to law abiding conduct and rehabilitation. Nor does the presentence incarceration fit within the language of section 65.10 (2) (1), which provides a court with the discretion to require a defendant to “[s]atisfy any other conditions reasonably related to [defendant’s] rehabilitation.” Defendant’s six months in jail was not rehabilitative within the meaning of section 65.10 (2) (1), but rather quintessentially punitive.

The condition imposed on defendant is not authorized under any other provision that might arguably permit incarceration. He was not incarcerated in accordance with Penal Law § 65.10 (2), which allows the court to incarcerate a person who has taken a plea for the limited purpose of providing medical or substance abuse treatment. Further, defendant correctly argues that the condition imposed here does not fit under any version of a “split sentence” because the court imposed an aggregate term of one year of incarceration and a year of conditional discharge, which does not comport with any periods allowed by law. The court could only have sentenced defendant to a maximum of six months and a period of conditional discharge of no less than three years (see Penal Law §§ 60.01 [2] [d]; 65.00 [3] [a] [i]; 65.05 [3] [a]).

Defendant’s presentence confinement was likewise not in accordance with a proper securing order under CPL 510.10 as the Appellate Division determined. That section is not intended to apply to persons, like defendant, held post conviction. CPL 510.10 provides

“[w]hen a principal, whose future court attendance at a criminal action or proceeding is or may be required, initially comes under the control of a court, such court must, by a securing order, either release him on his own recognizance, fix bail or commit him to the custody of the sheriff.”

As the practice commentary states,

“[t]his section is one of several in the CPL establishing the duty of the court to issue a securing order when a principal (as defined in CPL § 500.10[1]) initially comes under its control in a criminal action or proceeding. For a defendant that means upon initial arraignment, unless of course the matter is finally disposed of at that time (see CPL §§ 170.10[7], 180.10[6], 210.15[6])” (Peter Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, CPL 510.10).

The provision applicable to post-conviction confinement is CPL 430.20 (3) (a), which allows for definite or intermittent sentences, “[i]n counties contained within New York City or in any county that has a county department of correction, commitment must be to the custody of the department of correction of such city or county.”

For the reasons I have stated, there is no express statutory authority granting a court the discretion to impose a post-conviction, presentencing term of incarceration like the one imposed here. As a consequence, defendant’s six-month incar-ceratory “interim” condition is illegal. Therefore, I dissent and would reverse the Appellate Division, vacate defendant’s plea, and remit for further proceedings.

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

Order affirmed, in a memorandum.

       Defendant was released on December 9, 2009 and was arrested on October 19, 2010. Despite his violation of the no-arrest condition, with the consent of the People and the court, his sentencing was deferred for an additional six months, to June 14, 2011, with the same no-arrest condition. Defendant was arrested on June 14, 2011, hours before his sentencing.

      . The majority attempts to distinguish Rodney E. and Avery on the superficial ground that the defendants in those cases violated an illegal pre-sentence condition, while here defendant’s sentence is premised on his violation of a lawful no-arrest condition (majority mem at 1101). As illustrated in Rodney E. and Avery the dispositive and prefatory issue is the court’s underlying authority to impose a condition post conviction and before sentencing (Rodney E., 77 NY2d at 673; Avery, 85 NY2d at 505). Therefore, an illegal presentence condition, and its effect on the validity of the plea agreement, does not escape review because defendant complies with the condition.

      . Under Penal Law § 65.10 (2) (a)-(f)

        “[w]hen imposing a sentence of probation or of conditional discharge, the court shall, as a condition of the sentence, consider restitution or reparation and may, as a condition of the sentence, require that the defendant:
      “(a) Avoid injurious or vicious habits;
      “(b) Refrain from frequenting unlawful or disreputable places or consorting with disreputable persons;
      “(c) Work faithfully at a suitable employment or faithfully pursue a course of study or of vocational training that will equip him for suitable employment;
      “(d) Undergo available medical or psychiatric treatment and remain in a specified institution, when required for that purpose; “(e) Participate in an alcohol or substance abuse program or an intervention program approved by the court after consultation with the local probation department having jurisdiction, or such other public or private agency as the court determines to be appropriate;
      “(e-1) Participate in a motor vehicle accident prevention course. The court may require such condition where a person has been convicted of a traffic infraction for a violation of article twenty-six of the vehicle and traffic law where the commission of such violation caused the serious physical injury or death of another person. For purposes of this paragraph, the term ‘motor vehicle accident prevention course’ shall mean a motor vehicle accident prevention course approved by the department of motor vehicles pursuant to article twelve-B of the vehicle and traffic law;
      “(f) Support his dependents and meet other family responsibilities.”

      . Based on my conclusion that the plea should be vacated, I do not address defendant’s claims regarding the Outley hearing and express no opinion on the majority’s, analysis on that matter.


text:
    [55 NE3d 1058, 36 NYS3d 85]
    The People of the State of New York, Respondent, v Anthony Parson, Jr., Appellant.
    Argued April 26, 2016;
    decided June 14, 2016
    APPEARANCES OF COUNSEL

      David C. Schopp, The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey and Timothy P. Murphy of counsel), for appellant.

      Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Lowry and Donna A. Milling of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, upon his guilty plea, of criminal possession of a weapon in the second degree after the hearing court denied his motion to suppress the loaded firearm that was seized from the rear floor of the car he was driving. The charge stemmed from a traffic stop resulting in the search of the car. Defendant claims that he was denied effective assistance of counsel based upon counsel’s performance in the litigation of the suppression motion. The record does not support defendant’s contention.

In a plea context, where, as here, the voluntariness of the guilty plea is not in dispute, “the defendant ‘must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial,’ ” or that the outcome of the proceedings would have been different (People v Hernandez, 22 NY3d 972, 975 [2013], quoting Hill v Lockhart, 474 US 52, 59 [1985]). On this record, it is evident that defendant’s motion to suppress the gun that was recovered during defendant’s encounter with the police, if granted, would have resulted in the dismissal of the indictment.

When viewed in its totality, the attorney’s performance in this case throughout the proceedings, including at the suppression hearing, did not deprive defendant of “meaningful representation” (People v Baldi, 54 NY2d 137, 147 [1981]). To find otherwise on this record necessitates engaging in the exact form of hindsight review that this Court has cautioned against in analyzing ineffective assistance of counsel claims. In determining whether a defendant received meaningful representation, “counsel’s efforts should not be second-guessed with the clarity of hindsight to determine how the defense might have been more effective” (People v Benevento, 91 NY2d 708, 712 [1998]).

The record demonstrates that defense counsel conducted a competent cross-examination of the witnesses at the suppression hearing and provided the court with cogent legal arguments to support his motion to suppress the gun. This Court will not engage in the supposition and conjecture required to evaluate defendant’s criticism of the scope of counsel’s cross-examination at the suppression hearing. We have examined defendant’s other criticisms of counsel’s performance and conclude that they are without merit.

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein and Garcia concur; Judge Fahey taking no part.

Order affirmed, in a memorandum.


text:
    [55 NE3d 443, 35 NYS3d 683]
    230 Park Avenue Holdco, LLC, Appellant, v Kurzman Karelsen & Frank, LLP, et al., Respondents.
    Argued June 1, 2016;
    decided June 23, 2016

      APPEARANCES OF COUNSEL

      Klein & Solomon, LLP, New York City (Jay B. Solomon of counsel), for appellant.

      Kurzman Karelsen & Frank, LLP, New York City (Charles Palella and Arthur R. Block of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by granting plaintiff’s motion for summary judgment dismissing defendants’ third affirmative defense, and, as so modified, affirmed and the certified question answered in the negative.

Plaintiff met its initial burden of demonstrating its entitlement to summary judgment dismissing defendants’ third affirmative defense alleging that plaintiff breached the stipulation between the parties (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Defendants’ submissions in opposition to plaintiffs motion failed to raise a material triable issue of fact (see CPLR 3212 [b]; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur; Chief Judge DiFiore taking no part.

Order modified, without costs, by granting plaintiffs motion for summary judgment dismissing the third affirmative defense and, as so modified, affirmed and certified question answered in the negative, in a memorandum.


text:
    [55 NE3d 1061, 36 NYS3d 88]
    The People of the State of New York, Appellant, v Carlos Palencia, Respondent.
    Decided June 23, 2016

      APPEARANCES OF COUNSEL

      Madeline Singas, District Attorney, Mineóla (Donald Berk of counsel), for appellant.

      Russell Law Group, PLLC, Westbury (Camille O. Russell of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), appeal dismissed upon the ground that the reversal by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).

Concur: Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia.


author: Fahey, J.

text:
    [57 NE3d 26, 36 NYS3d 834]
    The People of the State of New York, Respondent, v Lennie Frankline, Appellant.
    Argued May 4, 2016;
    decided June 9, 2016

      APPEARANCES OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, New York City (Allen Fallek of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx (Jordan K. Hum-mel, Joseph N. Ferdenzi and Nancy Killian of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of Appellate Division should be affirmed.

Defendant Lennie Frankline challenges his conviction, alleging that the victim’s testimony about his prior act of violence against her, while generally admissible as nonpropensity evidence, was prejudicially excessive in scope. Given the trial record, we conclude reversal is unwarranted.

At defendant’s trial on charges arising from his attempted murder and assault of his former intimate partner, A.H., she testified to an attack by defendant one week before the assault at issue. The court allowed this testimony as an exception to the general prohibition on evidence of prior bad acts because it served as background about A.H.’s relationship with defendant, as well as proof of his intent and motive.

On the stand, A.H. recounted how she and defendant came to live together, moved to Niagara County from New York City, and that sometime later she decided to leave defendant. However, when she returned to their apartment to pick up her possessions, defendant confronted her and words escalated to violence. A.H. described in detail how over the course of the next two to three days defendant physically, mentally, and sexually abused her, poured gasoline on her, and threatened to light her on fire. She eventually managed to escape, and reported the attack to the police before returning with her mother to New York City. A.H. next described that approximately a week later, defendant broke into her mother’s home in New York City, and again beat her, doused her with gasoline, and attempted to ignite lighters in front of her, until she was once again able to escape.

The court provided the jury with three sets of limiting instructions regarding this evidence: the first before witness testimony, the second immediately preceding A.H.’s testimony about the Niagara County attack, and then once more during the court’s final jury charge. Each time the court informed the jury that the testimony concerning the Niagara County attack was introduced solely to provide background regarding the relationship between defendant and A.H., that the People contended it was proof of defendant’s intent and motive, that the testimony was not evidence of defendant’s propensity to commit the crimes charged, nor sufficient to convict defendant of those New York City crimes, and that the People had the burden to prove beyond a reasonable doubt all elements of those charged crimes.

The jury convicted defendant of attempted murder in the second degree (Penal Law §§ 110.00, 125.25), assault in the third degree (Penal Law § 120.00 [1]), two counts of burglary in the first degree (Penal Law § 140.30 [2], [3]), and endangering the welfare of a child (Penal Law § 260.10 [1]). The Appellate Division affirmed (123 AD3d 504 [1st Dept 2014]), and a Judge of this Court granted defendant leave to appeal (25 NY3d 1072 [2015]). We now affirm.

The People may not rely on prior bad acts as evidence of a defendant’s propensity to commit the crimes charged (People v Molineux, 168 NY 264, 313 [1901]), but the evidence may be admissible, as here, for background and to establish a defendant’s motive (id. at 297; see also People v Resek, 3 NY3d 385, 390 [2004]; People v Till, 87 NY2d 835, 837 [1995]). Previous acts of intimate partner violence may be nonpropensity evidence “probative of [a defendant’s] motive and intent to assault [the] victim” and which “provide [s] necessary background information on the nature of the [defendant and victim’s] relationship” (People v Dorm, 12 NY3d 16, 19 [2009]). “Where there is a proper nonpropensity purpose, the decision whether to admit evidence of defendant’s prior bad acts rests upon the trial court’s discretionary balancing of probative value and unfair prejudice” (id.). A court’s decision whether to admit the evidence is reviewed for abuse of discretion (id.). An error in the court’s ruling, however, may be deemed harmless where the evidence of guilt is overwhelming and there is no significant probability that the jury would have acquitted but for the error (People v Crimmins, 36 NY2d 230, 241-242 [1975]).

Defendant concedes that the testimony about the Niagara County attack was admissible to show background and motive for the New York City assault, but claims that he was denied a fair trial because A.H.’s testimony was excessive and highly inflammatory, making it impossible for the jury to fairly and objectively assess the evidence of the New York City assault. Essentially defendant argues he was prejudiced by the court’s failure to limit the testimony to a summary discussion of the Niagara County incident.

Defendant relies on People v Stanard, wherein the Court stated that lower courts must carefully monitor introduction of background evidence and take every precaution “lest it spill over its barriers and distort the jury’s contemplation of the determinative and critical evidence” (32 NY2d 143, 146 [1973] [internal quotation marks and citation omitted]). In Stanard, the defendant was charged with perjury for lying to a grand jury investigating police corruption in a division of the New York City Police Department. This Court held that the defendant was entitled to a new trial because he was substantially prejudiced by Patrolman Frank Serpico’s extensive testimonial accounts regarding numerous acts of corruption, which concerned specific transactions unconnected and plainly ir-revelant to the defendant’s alleged perjury. As the Court explained, where the background evidence is of such nature and amount that a court cannot “state with any conviction that evidence heard by a jury is not prejudicial to a defendant,” “any substantial doubt” on where “to strike a neat balance between possible prejudice to the defendant, and the indispensability of the challenged evidence to the People’s case . . . should weight the scales in favor of the defendant” (id. at 147). Thus, because Serpico’s testimony did not help the jury to understand the defendant’s actions, and instead “embroiled” him in general “reprehensible” police corruption, it destroyed “the reasonable balance between the claimed importance of this background evidence and its potential for prejudicing the defendant’s case” (id. at 145-147). In light of the impact of the testimony, the trial court’s limiting instructions did not cure the error, nor was the error harmless given “the improper totality of the explanatory evidence which substantially prejudiced the defendant’s right to a fair trial” (id. at 147-148).

We cannot say that both defects necessary for reversible error are present in defendant’s case, namely, that the trial court abused its discretion by failing to limit A.H.’s testimony and that such error substantially prejudiced the defendant so as to foreclose a determination of harmlessness. Unlike the evidence in Stanard, here, A.H.’s testimony concerned the same parties, and served the nonpropensity purpose of directly explaining her relationship with the defendant and his motive. This is far from a case where “the jury did not require a recital of such a prologue to understand fully what had taken place in the defendant’s encounters with [the victim]” (id. at 147). In the same vein, testimony that the defendant previously attacked A.H. would not have led the jury to marginalize, relegate to the background, or ignore the grievous nature of the New York City assault, which was characterized by physical violence and several failed attempts at immolation.

Under these circumstances, we perceive no error that requires a reversal of defendant’s conviction.

Fahey, J.

(concurring). The majority identifies two “defects necessary for reversible error” in this case, namely, that the trial court abused its discretion in failing to limit testimony that defendant assaulted the victim approximately one week before the instant crimes occurred, and that such error “substantially prejudiced the defendant so as to foreclose a determination of harmlessness” (majority mem at 1117). The majority also concludes that both of those defects are not present here (see id.). In doing so, the majority has determined that the trial court erred with respect to the volume of evidence it admitted pursuant to People v Molineux (168 NY 264 [1901]), but that the misstep is harmless. I respectfully concur in the result only because, in my view, the trial court did not abuse its discretion with respect to the quantity of Molineux evidence that it admitted.

The question whether to admit evidence of an uncharged crime or crimes is answered by a familiar balancing test: if evidence of an uncharged crime or crimes is relevant to an issue other than a defendant’s criminal disposition, then it may be admitted with proper limiting instructions upon a finding that its probativeness outweighs its potential for prejudice (see People v Morris, 21 NY3d 588, 594-596 [2013]). “[T]he threshold [task] of identifying a material issue to which the evidence is relevant poses a question of law,” but “the balancing of probative value against potential prejudice is a matter that lies within the trial court’s discretion” (People v Israel, 26 NY3d 236, 243 [2015] [internal quotation marks omitted]).

A question with respect to the volume of evidence of an uncharged crime or crimes to be admitted is subject to the same discretionary balancing of probative worth against prejudicial threat (see generally People v Stanard, 32 NY2d 143, 146 [1973]). Under the circumstances of this case, the trial court did not abuse its discretion in admitting all of the victim’s testimony with respect to the prior assault. In this instance, the extensive nature of the prior assault, in which the victim was held against her will for over two days, required extensive testimony from the victim, even for the limited purpose for which that evidence was offered (cf. id. at 147).

Moreover, that testimony was admitted in conjunction with no less than three curative instructions, through which the court scrupulously advised that such evidence was to be considered for only two purposes: to explain the relationship between defendant and the victim, and as proof of defendant’s intent and motive. Those instructions, which the jury is presumed to have followed, offset any potential for prejudice arising from the admission of the disputed testimony (see Morris, 21 NY3d at 598).

Consequently, for the foregoing reasons, I conclude that the trial court did not abuse its discretion in admitting the subject evidence, and I would affirm the Appellate Division order without reference to the harmless error doctrine.

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

Order affirmed, in a memorandum.

      . Although the minutes of the Molineux hearing are apparently missing from the record, there is no dispute as to the court’s evidentiary determination. The court restated several times during trial that its initial and continued ruling was that A.H. could testify about the previous assault because it was background, intent and motive evidence. Therefore, the record on appeal is sufficient to permit our review of defendant’s challenge to the trial testimony.

      . Defendant argued below that the testimony was inadmissible to show his intent because intent was inferable from his conduct during the New York City attack. Since defendant concedes, as the Appellate Division concluded, that the evidence of the prior assault was admissible as background and probative of defendant’s motive, we have no reason to opine on his claim that the testimony should not have been admitted to show defendant’s intent. Moreover, such claim has no impact on our analysis.


text:
    In the Matter of Kevin Banks, Appellant, v John B. Rhea, as Chairperson of the New York City Housing Authority, Respondent.
    Submitted May 9, 2016;
    decided June 23, 2016
   Motion for leave to appeal denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    In the Matter of Bohdan S. Chomyn, Appellant, v M. William Boller, an Acting Supreme Court Justice in His Capacity as Licensing Officer for Pistol Permits in Erie County, et al., Respondents.
    Decided June 23, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Faye M. Eaton, Appellant, et al., Plaintiffs, v Sylvia Hungerford, Individually and as Special Education Teacher of Wayne Central School District, et al., Respondents.
    Decided June 23, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Endurance American Specialty Insurance Company et al., Respondents, v Utica First Insurance Company, Appellant, et al., Defendant.
    Submitted April 18, 2016;
    decided June 23, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Entergy Nuclear Operation, Inc., et al., Respondents, v New York State Department of State et al., Appellants.
    Submitted June 13, 2016;
    decided June 23, 2016
   Motion by Nuclear Energy Institute for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Estee Lauder Inc., Respondent, v OneBeacon Insurance Group, LLC, et al., Appellants.
    Submitted June 13, 2016;
    decided June 23, 2016
   Motion by Century Indemnity Company for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. One copy of the brief must be served and an original and two copies filed within seven days.


text:
    In the Matter of Fahari Academy Charter School, Appellant, v Board of Education of City School District of City of New York, Doing Business as New York City Department of Education, et al., Respondents.
    Submitted May 9, 2016;
    decided June 23, 2016
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Motion for a stay dismissed as academic.


text:
    In the Matter of Henry Phipps Plaza South Associates, Appellant, v Judith Quijano et al., Respondents.
    Decided June 23, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Janine Johnson, Appellant, v County of Orange et al., Respondents.
    Decided June 23, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Betty L. Kimmel, Respondent, v State of New York et al., Appellants. Emmelyn Logan-Baldwin, Interested Party-Respondent.
    Submitted May 9, 2016;
    decided June 23, 2016
   Motion by Empire Justice Center et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judges Pigott and Fahey taking no part.


text:
    Manjula Patel, Respondent, v Vinod Patel, Appellant.
    Submitted May 23, 2016;
    decided June 23, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Appellant, v Jeffrey Bryant, Respondent.
    Submitted June 20, 2016;
    decided June 23, 2016
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Alain Forget, Appellant.
    Submitted June 6, 2016;
    decided June 23, 2016
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Eugene Francis, Appellant.
    Submitted June 13, 2016;
    decided June 23, 2016
   Motion to vacate this Court’s April 25, 2016 dismissal order granted [see 27 NY3d 990 (2016)]. Motion for assignment of counsel granted and Andrew W. Sayegh, Esq., 95 Church Street, Suite B, White Plains, New York 10601 assigned as counsel to the appellant on the appeal herein.

Chief Judge DiFiore taking no part.


text:
    The People of the State of New York, Respondent, v Frank Dinehart Langdon, Appellant. Grant Dinehart Langdon, Nonparty Appellant.
    Decided June 23, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the Court of Appeals does not have jurisdiction to entertain it (NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).

Judge Pigott taking no part.


text:
    The People of the State of New York ex rel. Frank Monte, Appellant, v Maxsolaine Mingo et al., Respondents.
    Submitted May 16, 2016;
    decided June 23, 2016
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]). Motion for poor person relief etc. dismissed as academic.


text:
    Robert L. Schulz, Appellant, v Sheldon Silver, Individually and as Speaker of the New York State Assembly, Respondent.
    Submitted May 16, 2016;
    decided June 23, 2016
   Motion for reconsideration of this Court’s March 31, 2016 dismissal order denied [see 27 NY3d 959 (2016)]. Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from the October 2014 Supreme Court order, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Chief Judge DiFiore taking no part.


text:
    Robert L. Schulz, Appellant, v State of New York Executive et al., Respondents.
    Decided June 23, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.