author: Graffeo, J.

text:
    [920 NE2d 359, 892 NYS2d 303]
    Riverside South Planning Corporation, Appellant, v CRP/Extell Riverside, L.P., et al., Respondents.
    Argued October 22, 2009;
    decided November 24, 2009

      POINTS OF COUNSEL

      Cravath, Swaine & Moore LLP, New York City (Max R. Shulman of counsel), for appellant.
    I. Riverside South Planning Corporation’s interpretation of the sunset provision is reasonable. (Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470; Williams Press v State of New York, 37 NY2d 434; Atwater & Co. v Panama R.R. Co., 246 NY 519; Wirth & Hamid Fair Booking Inc. v Wirth, 265 NY 214; Leon v Martinez, 84 NY2d 83; Zurakov v Register.Com, Inc., 304 AD2d 176; Bland-ford Land Clearing Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 260 AD2d 86; Kass v Kass, 91 NY2d 554.) II. The sunset provision does not empower the Extell defendants to undo design decisions already made.

      Schlam Stone & Dolan LLP, New York City {Richard H. Dolan and Thomas A. Kissane of counsel), for respondents.
    I. Plaintiffs appeal should be dismissed because it is from a nonfinal order. (Burke v Crosson, 85 NY2d 10; City of Buffalo v Clement Co., 27 NY2d 794, 28 NY2d 241, 29 NY2d 640; Matter of City of Utica v Weaver Sons Co., 259 NY 584.) II. Plaintiffs argument on appeal relies in substantial part on factual matters beyond this Court’s powers of review. (Kass v Kass, 91 NY2d 554; W.W.W. Assoc, v Giancontieri, 77 NY2d 157; Sterling Fifth Assoc. v Carpentille Corp., Inc., 9 AD3d 261; Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186; Mitchell, Inc. v Dannemann Hosiery Mills, 258 NY 22; Williams Press v State of New York, 37 NY2d 434.) III. The Extell defendants only assumed the substantive obligations owed by Donald Trump’s entities, all of which had concededly expired two years before Extell acquired their interest in the project. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 941; Ayanru v General Motors Acceptance Corp., 130 Misc 2d 440; Matter of Bradford Cent. School Dist. v Ambach, 56 NY2d 158.) IV The obligations created by the 1993 Letter Agreement expired by their terms no later than 10 years from its making. (Kass v Kass, 91 NY2d 554; Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470; Slamow v Del Col, 79 NY2d 1016; Matter of Anonymous, 189 Misc 375; Williams Press v State of New York, 37 NY2d 434; Evans v Famous Music Corp., 1 NY3d 452; Graev v Graev, 11 NY3d 262; Korff v Corbett, 18 AD3d 248; Atwater & Co. v Panama R.R. Co., 246 NY 519; People v Brooks, 34 NY2d 475.)
   OPINION OF THE COURT

Graffeo, J.

In this breach of contract case, we are asked to determine the scope of a sunset clause that appears in a 1993 Letter Agreement relating to the development of a parcel of real property. Because we agree with the Appellate Division that, under the provision in question, the obligations in the agreement ceased in 2003—two years before defendant purchased the property—we affirm the judgment dismissing plaintiff’s claim.

In 1984, Penn Yards Associates, a partnership controlled by Donald Trump, purchased the Penn Central Railroad Yards—a 76-acre parcel located on the West Side of Manhattan known as Riverside South. Trump floated two proposed development plans in the late 1980s that were opposed by civic groups. Eventually forging an alliance with six of the organizations that had opposed those plans, in 1991 Trump entered into a Memorandum of Understanding with these groups regarding a new Development Plan. The new plan focused on environmental sustainability and design criteria, specified the number, size and permissible uses of the buildings to be erected and reserved space for art studios, parks and other open spaces. With Trump’s assistance, plaintiff Riverside South Planning Corporation (RSPC) was formed, an entity comprised of representatives of each of the six groups, along with Trump and a named president.

Thereafter, Trump and RSPC worked together to obtain support from government officials for the Development Plan and, in 1992, formal approval was obtained from the City of New York. Penn Yards recorded a 284-page Restrictive Declaration with the New York City Register memorializing that approval. Having been recorded in the chain of title, the declaration imposed numerous restrictions on the owner that would run with the land and bind any developer as well as any successors or assignees.

On March 31, 1993, Donald Trump entered into a four-page Letter Agreement with RSPC to “confirm our arrangement to continue working together.” After identifying some issues that remained outstanding, Trump agreed that, if he used “Special Permits,” he would develop the property in substantial conformity to “design guidelines” and would not apply for any major modifications or rezonings (with specified exceptions) without the approval of a majority of the members of RSPC. Trump further agreed to work with RSPC to oversee the design and construction of the parks and open space in conformity with approved park drawings and park specifications and to delegate his future park maintenance obligations to an independent park maintenance entity (subject to certain conditions). In exchange, RSPC consented to continue its support of the project and to take whatever actions necessary to secure government permits and facilitate development. The contract also contained additional provisions addressing funding for RSPC and the potential for future dissolution of the planning corporation.

Most relevant to this case, a sunset provision was included on the third page of the four-page Letter Agreement stating that “[t]he agreements contained herein” would continue for 10 years, unless either of two conditions were no longer fulfilled, in which case they would cease earlier. In a subsequent paragraph, the developer agreed that if he sold “any Parcel of the Subject Property,” he would assign to the purchaser the obligations in the contract. Appended to the agreement and incorporated by reference was a two-page document entitled “LEGAL REQUIREMENTS.” This addendum clarified that “[n]othing contained in the Letter Agreement is intended to, nor shall be interpreted to, create an interest in real property, a constructive trust, easement, lien or other encumbrance upon the Subject Property,” which was consistent with a provision in the Letter Agreement itself stating that the contract would not be recorded in the chain of title.

In 1994, Penn Yards sold the Riverside South property to Hudson Waterfront Associates, L.E, an entity in which Trump had a noncontrolling interest. After the transfer, in his capacity as a partner in Hudson Waterfront, Trump entered into another contract with RSPC noting that he would continue to be a partner in the project and accepting, on behalf of Hudson Waterfront, the obligations imposed in the 1993 Letter Agreement, with certain caveats. It is undisputed that Hudson Waterfront fully complied with the 1993 Letter Agreement while it owned the property.

According to the allegations in RSPC’s complaint, in 2005 Hudson Waterfront sold the Riverside South property (or a portion of it) to defendant CRP/Extell Riverside, L.E (Extell), a company unrelated to Donald Trump. Upon purchase of the property, Extell signed a document in which it agreed to assume any duties and obligations that continued to exist under the 1993 Letter Agreement but stated that it was not admitting that there were any continuing obligations or that the contract remained in effect.

RSPC alleges that, for several months, Extell acted consistently with the Letter Agreement by funding and consulting with RSPC. However, toward the end of 2005, Extell announced that it planned to construct a building that contained more glass on the exterior facade than would be consistent with the Design Guidelines and it failed either to seek approval from RSPC or to conduct an energy efficiency analysis required by the guidelines. Extell then rebuffed RSPC’s attempts to participate in the planning process and ultimately declared that it was not bound by the Letter Agreement because, by virtue of the sunset clause, that contract had expired in March 2003, 10 years after it was signed.

In November 2007, RSPC commenced this breach of contract action seeking enforcement of the 1993 Letter Agreement, arguing that the contract remained in effect. Extell answered and moved to dismiss the claim on the basis of documentary evidence, relying on the plain language of the sunset clause and contending that, since Extell did not purchase the property until two years after the agreement expired, it had no obligations under that contract and therefore could not be sued for its breach.

Supreme Court denied the motion to dismiss, reasoning that the sunset clause was ambiguous because it did not appear at the end of the agreement and, as a result, could be interpreted as applying only to the obligations that preceded it in the document (2008 NY Slip Op 30836[U]). Since the clause relating to assignment to successors—the provision under which obligations might have been passed on to Extell—appeared after the sunset clause, the court concluded that the assignment clause might still have been in effect when the property was purchased by Extell.

In a divided decision, the Appellate Division reversed and granted Extell’s motion to dismiss (60 AD3d 61 [2008]). The majority held that the sunset clause plainly established that the Letter Agreement had expired, at the latest, 10 years after it was executed, meaning that it was of no force or effect when Extell acquired the property in 2005. The court was unpersuaded that the placement of the provision on the third page of the contract—as opposed to at the end—permitted the conclusion that the sunset clause applied only to obligations that appeared in the text before it rather than the entire agreement. The two-justice dissent would have upheld the order denying the motion to dismiss as it agreed with Supreme Court that the sunset clause was ambiguous. The dissent surmised that the parties might have intended to limit Trump’s obligations to 10 years but to bind successors for a longer period of time if they thought it likely that Trump would sell the property soon after the Letter Agreement was signed. Plaintiff appeals to this Court as of right on the two-justice dissent and we now affirm.

Our rules of contract interpretation are well-established. “[W]hen parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms,” and this rule is applied with special force “in the context of real property transactions, where commercial certainty is a paramount concern, and where the instrument was negotiated between sophisticated, counseled business people negotiating at arm’s length” (Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004] [internal quotation marks, ellipses and citations omitted]). Courts may not “by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing” (Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001] [internal quotation marks and citation omitted]).

In this dispute, the primary issue is whether there is ambiguity in the language of the sunset clause. “Whether an agreement is ambiguous is a question of law for the courts . . . Ambiguity is determined by looking within the four corners of the document, not to outside sources” (Kass v Kass, 91 NY2d 554, 566 [1998] [citations omitted]). The entire contract must be reviewed and “[p] articular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby. Form should not prevail over substance and a sensible meaning of words should be sought” (Atwater & Co. v Panama R.R. Co., 246 NY 519, 524 [1927]). Where the language chosen by the parties has “a definite and precise meaning,” there is no ambiguity (Greenfield v Philles Records, 98 NY2d 562, 569 [2002] [citation omitted]).

The sunset clause in the Letter Agreement provides:

“The agreements contained herein shall continue for ten (10) years, or such lesser period as either of the following conditions shall no longer remain satisfied: (1) the Special Permits shall remain in effect; and (2) I shall own, directly or indirectly, all or any portion of the Subject Property” (emphasis added).

We concur with the Appellate Division majority’s view that the phrase “[t]he agreements contained herein” unambiguously encompasses all of the obligations in the contract as it is accompanied by no limiting language suggesting that it refers to only some of the obligations, such as those in the preceding paragraphs as RSPC suggests. The clause indicates that the contract will remain in effect for 10 years and contemplates that it might expire sooner if either of the two listed conditions was not satisfied, e.g., if the developer no longer owned, directly or indirectly, any part of the Riverside South property.

Nor is the clause rendered ambiguous by other language in the contract, such as the assignment clause. In that provision, the developer agreed to “require any person who purchases any Parcel of the Subject Property from me so long as the Special Permits remain in effect, to agree to abide by the agreements in this letter.” Although RSPC acknowledges that Trump could not have been bound by the obligations in the letter for longer than 10 years, it asserts that the assignment clause requires that any successor purchaser of the property comply with the agreements as long as the Special Permits remain in effect, even if this extended beyond the decade specified in the sunset provision. It therefore interprets the assignment clause as imposing a broader obligation on a successor than Trump had himself and, based on this interpretation, contends that an ambiguity is created as to the applicability of the sunset clause to an assignee such as Extell.

We are unpersuaded by this analysis. Under the clear wording of the sunset provision, the obligations in the Letter Agreement immediately ceased if Trump no longer owned, directly or indirectly, any portion of Riverside South—if he and his companies sold the entire property—and this would be true even if such a sale occurred within 10 years. In that circumstance, there would be no obligations to pass on to a successor because the contract immediately expired upon Trump’s divestiture of ownership. Viewed in this light, there is only one reasonable interpretation of the assignment clause; that provision would have been triggered only if a Trump company retained an interest in Riverside South while selling a portion of the property to an unrelated entity.

In fact, this is precisely what the assignment clause says. If Trump sells “any Parcel of the Subject Property” (emphasis added) while retaining an interest in other parcels, he must require the purchaser to abide by the obligations in the Letter Agreement for so long as they remain in effect (which, under the sunset clause, would be no more than 10 years). The sentence that follows the assignment clause further demonstrates that Trump is addressing the sale of a parcel and not the entire “Subject Property” (as Riverside South is referenced elsewhere in the document) as the developer agrees to “contractually require the purchaser(s) to agree to develop such parcel” (emphasis added) in accordance with the guidelines. As long as he remained a part of the project and until the Letter Agreement expired, Trump was required to extend to any entity that purchased a portion of the property the same obligations he carried—to work with RSPC until the contract terminated in 2003 (if not sooner). It made sense to include such a provision since, if Trump (through one of his companies) was simultaneously developing one part of Riverside South while a different organization developed another, such coordination would have been desirable. But the assignment clause does not negate the 10-year limitation on the duration of the contract.

Of course, the parties could have drafted an agreement that restricted the scope of the sunset clause in the manner asserted by RSPC. For example, the assignment clause would have had the meaning RSPC ascribes to it if it read “notwithstanding the language limiting the duration of this agreement,” the developer will require any subsequent purchaser to abide by the obligations in this letter for so long as the Special Permits remain in effect. But the contract contains no language indicating a mutual agreement to limit the applicability of the sunset clause with respect to successors.

Thus, like the other obligations in the Letter Agreement, the assignment obligation was restricted by the sunset provision and ended, at the latest, 10 years after the agreement was signed. As the developer, Trump did not agree to assign to someone else obligations he never had and the presence of the assignment clause therefore does not create an ambiguity in the sunset clause. To the extent that Supreme Court and the Appellate Division dissent relied on the inference that the parties must have intended to bind successors for a period greater than 10 years because development of Riverside South could not have been finished within a decade, not only does this rationale consider matters outside the four corners of the agreement but it assumes that the developer agreed to work with RSPC until the project was completed—an obligation that is not stated in the agreement, although it could easily have been included if that had been the parties’ intent.

Since the Letter Agreement was executed in March 1993, it expired no later than March 2003, two years before Extell purchased the property from Hudson Waterfront. Thus, Extell had no contractual obligation to RSPC that could give rise to this breach of contract claim. RSPC asserts that, even if this is the case, its lawsuit should nonetheless proceed because any other result would allow Extell to “undo” decisions made while the Letter Agreement was in effect. Assuming such a theory could afford a basis for relief against Extell, the complaint does not identify any binding decision made before the Letter Agreement expired that has been disturbed by Extell; for example, RSPC does not allege that, before March 2003, any previous owner had adopted plans and obtained permits for the building that were different from Extell’s proposal and that Extell has modified those plans or sought to amend those permits. We further note that RSPC succeeded in negotiating a Development Plan that incorporated environmental sustainability and design criteria and, unlike the Letter Agreement, such plan is part of the Restrictive Declaration that is recorded in the chain of title and runs with the land, binding all successors for all time— including Extell. Nothing we decide today allows Extell to unravel that significant accomplishment of RSPC.

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

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

Order affirmed, with costs.

      . Under the Restrictive Declaration, the developer’s compliance with the plan is monitored by the Riverside South Implementation Task Force, which consists of a representative of the Mayor’s Office of Construction, the Director of the Department of City Planning, another mayoral appointee (a commissioner of an agency, at the election of the Mayor) and two appointees of the Speaker of the State Assembly.

      . The Riverside South Design Guidelines were apparently finalized on May 21, 1993—about two months after the Letter Agreement was executed. Although the Design Guidelines mirror, in some respects, provisions in the Development Plan, they also contain additional details and specifications relating to the design and construction of buildings, such as the dimensions of windows and the percentage of glass making up the exterior facade. The guidelines themselves are unsigned and are not in the form of a contract or restrictive declaration.


source: Caselaw Access Project

author: ClPARICK, J. Pigott, J. (dissenting).

license: Public Domain

text:
    [921 NE2d 191, 893 NYS2d 499]
    In the Matter of the Estate of Lena Hausman, Deceased. George Hausman, as Executor of Lena Hausman, Deceased, Appellant; Fredda Simon et al., Respondents.
    Argued October 20, 2009;
    decided December 1, 2009

      POINTS OF COUNSEL

      Norman A. Olch, New York City, and Wolfson & Carroll (Michael G. Wolfson of counsel), for appellant.
    The deed to the limited liability company (LLC) was valid because (1) on the date of the deed the LLC was a de facto business entity, and (2) the heirs of the grantor are estopped from collaterally attacking the validity of the deed. (Lancaster v Amsterdam Improvement Co., 140 NY 576; Methodist Episcopal Union Church v Pickett, 19 NY 482; Kiamesha Dev. Corp. v Guild Props., 4 NY2d 378; Jarl Co. v Village of Croton-on-Hudson, 258 NY 303; Bankers Trust Co. of W.N.Y.v Zecher, 103 Misc 2d 777; Smith v Sheeley, 79 US 358; Matter of Planz [Sees], 282 App Div 552; Stevens v Episcopal Church History Co., 140 App Div 570; Emery v De Peyster, 77 App Div 65; Card v Moore, 68 App Div 327.)

      Ezra Huber & Associates, P.C., Mineóla (Ezra Huber of counsel), for respondents.
    I. Under the facts of this case, appellant cannot claim that the limited liability company (LLC) existed as a de facto entity prior to its filing with the New York Secretary of State because the members of the LLC themselves chose the date that the LLC came into legal being—this date being after the date of the real property conveyance. (Kiamesha Dev. Corp. v Guild Props., 4 NY2d 378.) II. The Court of Appeals has held that the grantee of real property must exist at the time of conveyance. No grantee capable of taking title existed on the date of this conveyance. (Kiamesha Dev. Corp. v Guild Props., 4 NY2d 378; David v Williamsburgh City Fire Ins. Co., 83 NY 265; Matter of Planz [Sees], 282 App Div 552; 183 Holding Corp. v 183 Lorraine St. Assoc., 251 AD2d 386; 442 Decatur St., LLC v Spheres Realty, Inc., 14 AD3d 535.) III. The Appellate Division committed no error and enunciated no new rules; it merely applied existing law to the facts of this case. (Methodist Episcopal Union Church v Pickett, 19 NY 482; Matter of Planz [Sees], 282 App Div 552; Stevens v Episcopal Church History Co., 140 App Div 570; Kiamesha Dev. Corp. v Guild Props., 4 NY2d 378; Card v Moore, 68 App Div 327, 173 NY 598; 183 Holding Corp. v 183 Lorraine St. Assoc., 251 AD2d 386; 442 Decatur St, LLC v Spheres Realty, Inc., 14 AD3d 535; Emery v De Peyster, 77 App Div 65; Bankers Trust Co. of W.N.Y. v Zecher, 103 Misc 2d 777; Rockaway Improvement, LLC v Danco Transmission Corp., 9 Misc 3d 210.) IV The corporation-by-estoppel defense may not be raised at this point in the case. The issue was raised for the first time in appellant’s motion for reargument to the Appellate Division; in any event, the parties agreed to have the matter determined on the basis of a specific set of facts and as a matter of law; any estoppel issue raised at this time would require consideration of matters not in the record. (Boslow Family Ltd. Partnership v Glickenhaus & Co., 7 NY3d 664; Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342; Matter of Schwartz v Cuomo, 111 AD2d 759; Matter of Smith, 91 AD2d 789; Matter of Pessano, 269 App Div 337, 296 NY 564; Szigyarto v Szigyarto, 64 NY2d 275; Pink v Isle Theat. Corp., 271 NY 390; Kiamesha Dev. Corp. v Guild Props., 4 NY2d 378; Marden v Dorthy, 160 NY 39; Stevens v Episcopal Church History Co., 140 App Div 570.)
   OPINION OF THE COURT

ClPARICK, J.

In this probate proceeding, we are asked to decide whether decedent’s children formed a de facto limited liability company (LLC) capable of receiving title to real property that was the subject of a deed executed by decedent shortly before her death. Because no “colorable attempt” was made to file the articles of organization with the Department of State prior to the date of the alleged transfer, we conclude that there was no de facto entity in existence capable of receiving title to the property and the conveyance is thus void.

The facts are mainly undisputed. On October 16, 2000, decedent Lena Hausman’s will was executed. She divided her residuary estate into four equal shares: 25% to her son, George (the executor of her estate); 25% to her daughter, Susan; 25% to the children of her predeceased son, Gerald; and 25% to the children of her predeceased son, Gilbert. Decedent’s will empowered her executor, George, to create an LLC and to transfer ownership of her real estate located at 1373 56th Street, in Brooklyn, which generated rental income, to the LLC for the benefit of her heirs. In the event that the LLC was formed and her real property conveyed to it, the will required that the executor “distribute the membership interests in accordance with the directions set forth above” and “[a]ny beneficiary . . . who refuse[d] to cooperate in the establishment of the LLC” would be entitled to the share of the distribution in a special payment.

On October 4, 2001, George and Susan alone executed articles of organization to own, operate and manage the LLC. They also drafted an operating agreement, providing that they would be the sole members of the company and that it would come into existence upon the filing of the articles of organization with the New York Department of State. This would have the effect of depriving the other heirs, decedent’s grandchildren, from receiving any benefit from the rental property. Significantly, the articles of organization were not filed with the Department of State until November 16, 2001. On November 2, 2001—two weeks prior to the filing of the articles of organization— decedent, then 90 years old and residing in a nursing home, executed a deed transferring ownership of the property to the LLC. The deed was recorded on December 3, 2001.

Upon decedent’s death in June 2002, her will was admitted to probate. A dispute arose over whether decedent’s grandchildren had rights to the real property. They argued that the property was not conveyed to a valid LLC, and that it should be part of the estate subject to their distributive interests, as stated in the will. The executor maintained that the conveyance of the property to the LLC was valid and does not constitute part of the estate. He filed the instant petition to ascertain the validity of the conveyance of the property to the LLC. Surrogate’s Court granted the petition, concluding that the LLC operated as a valid de facto company prior to the filing of the articles of organization. The court additionally applied the doctrine of estoppel, concluding that “decedent adopted the corporation ... by express ratification and acceptance of the benefits referable to it.”

The Appellate Division reversed the order, denied the petition and deemed the deed invalid. Relying on Kiamesha Dev. Corp. v Guild Props. (4 NY2d 378, 388 [1958]), it concluded that the executor failed to make a “colorable attempt to comply with the statute governing the organization of limited liability companies” because he made no effort to file the articles of organization with the State prior to the execution of the deed, and as no entity existed capable of taking title to the property, this conveyance was void (51 AD3d 922, 924 [2008]). We granted leave to appeal (11 NY3d 716 [2009]) and now affirm.

Limited Liability Company Law § 203 provides three specific requirements to form an LLC: (1) preparation of the articles of organization; (2) execution of the articles of organization; and (3) the filing of the articles of organization with the State. Limited Liability Company Law § 209 requires that the articles of organization be delivered to the Department of State and a filing fee be paid. Here, no attempt to file articles of organization was made before the conveyance of the property. The executor seeks application of the de facto doctrine and a determination that the transfer of the property to the LLC was valid. The parties do not dispute, and both courts below concluded, that the de facto corporation doctrine is applicable to limited liability companies. We agree. The statutory schemes of the Business Corporation Law and the Limited Liability Company Law are very similar, and we see no principled reason why the de facto corporation doctrine should not apply to both corporations and limited liability companies.

Under very limited circumstances, courts may invoke the de facto corporation doctrine where there exists (1) a law under which the corporation might be organized, (2) an attempt to organize the corporation and (3) an exercise of corporate powers thereafter (see Methodist Episcopal Union Church v Pickett, 19 NY 482, 485 [1859]; Von Lengerke v City of New York, 150 App Div 98, 102 [1st Dept 1912], affd 211 NY 558 [1914]). There is no question that the first prong has been satisfied, as the Limited Liability Company Law provides for the method of incorporation. With respect to the second prong, however, the formation of a de facto company requires a “colorable attempt to comply with the statutes governing incorporation” prior to the exercise of corporate powers, including the filing requirement (Kiamesha, 4 NY2d at 388). “[W]here there has been an attempt in good faith to comply with the requirements of the law with respect to filing a certificate of incorporation and a certificate has been filed . . . and there has been use of the corporate name, the corporation will be deemed a corporation de facto” (Stevens v Episcopal Church History Co., 140 App Div 570, 578-579 [1910]). However, “the mere execution of a paper which is not filed and does not become a public record is insufficient” (id. at 579).

The executor seeks support in Matter of Planz (Sees) (282 App Div 552 [3d Dept 1953]) for his argument that a de facto entity may exist even where it has failed to make an attempt to file statutorily required organizational papers with the State. There, a purported corporation executed its certificate of incorporation, and then waited a month to file the certificate with the Secretary of State. During this gap, as here, there was a conveyance of property to the corporation. The Appellate Division held that the entity was a de facto corporation during this period. Given our subsequent holding in Kiamesha, mandating a good faith effort to comply with mandatory state filing requirements, however, Planz is not a correct application of the de facto corporation doctrine.

Here, it is undisputed that there was no bona fide attempt to comply with the ministerial, yet essential, requirement of filing the articles of organization prior to the attempted conveyance. Although challenged by defendant and the dissenting opinion, merely executing articles of organization along with an operating agreement and nothing more is insufficient to meet the long-standing requirements of a de facto entity. Because an entity that is neither de facto nor de jure cannot take title to real property {see Kiamesha, 4 NY2d at 388-389), there was no entity in existence capable of receiving title to the real property and the purported conveyance is therefore void.

Moreover, there is no ground for the estoppel claim because there is no evidence that decedent acted inequitably or took unfair advantage of George or Susan. Indeed, there is no evidence that decedent received any meaningful benefit from that transaction.

Accordingly, the Appellate Division’s order should be affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.

Pigott, J. (dissenting).

Because the majority, in my view, takes the holding in Kiamesha Dev. Corp. v Guild Props. (4 NY2d 378 [1958]) too far—to the point of practically eliminating the legal concept of a de facto corporation—I respectfully dissent.

It is conceded that at the time the property was conveyed from the decedent to the LLC, the articles of organization for the LLC had not yet been filed. But the sequence of events preceding the filing is important. The articles of organization and operating agreement for the LLC were executed on October 4, 2001. The decedent conveyed the property to the LLC on November 2. The articles of organization were filed on November 16 and the deed was filed on December 3, 2001. The delay in filing is about the only misstep, if a misstep at all, in an otherwise fairly normal series of events in the creation of the LLC. Five years later, only after counsel for disinherited legatees in litigation in Surrogate’s Court discovered that the filing of the articles of organization followed the execution of the deed, rather than vice versa, did the timing of the filing come into question.

It has long been held that courts may invoke the de facto corporation doctrine where there exists: (1) a law under which the corporation might be organized, (2) an attempt to organize the corporation and (3) an exercise of corporate powers thereafter (see Methodist Episcopal Union Church v Pickett, 19 NY 482, 485 [1859]; Von Lengerke v City of New York, 150 App Div 98 [1st Dept 1912], affd 211 NY 558 [1914]). All of these requirements were met here. The majority focuses on the “colorable attempt to comply with the statutory requirement” language found in Kiamesha Dev. Corp. v Guild Props. (4 NY2d 378 [1958]) to state definitively that there can be no de facto corporation here because there was no “colorable attempt.” In my view, that case, interesting in its facts, should be limited to them.

In New York, it is clear that if there is no attempt to formally organize, there will be no de facto corporation. Here, however, the organization of the LLC was complete. The record shows that the incorporators prepared and executed the articles of organization as required under Limited Liability Company Law § 203. They also executed and adopted the required operating agreement for the LLC pursuant to Limited Liability Company Law § 417 (a). Those documents reveal that the LLC was organized “solely to own, operate or manage real property and to do any and all things necessary, convenient, or incidental to that purpose.” Pursuant to that purpose, the LLC took title as grantee to the real property in the name of the LLC. And it was the decedent as grantor who executed the deed naming the LLC the grantee. Two weeks after the deed was executed—a reasonable period—the articles of organization were filed with the Secretary of State. The related ancillary papers, including a New York City real property transfer tax return as well as city and state transfer tax returns, which named the LLC as grantee, were executed and filed as required.

Under the circumstances of this case, I would find that the incorporators acted with sufficient alacrity to comply with the statutes, and would therefore find the conveyance to the de facto entity that existed at that time valid.

Therefore, I would reverse the order of the Appellate Division.

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

Order affirmed, etc.

       The deed recites that decedent received $10 and other valuable consideration for the transfer of the property to the LLC.


author: Read, J.

text:
    [920 NE2d 939, 892 NYS2d 832]
    The People of the State of New York, Respondent, v Phillip Riback, Appellant.
    Argued October 22, 2009;
    decided December 1, 2009

      POINTS OF COUNSEL

      Stillman, Friedman & Shechtman, PC., New York City (Paul Shechtman of counsel), for appellant.
    I. The trial court erred in allowing a prosecution expert to testify to the meaning of “pedophilia,” “ephebophilia” and “sexual fetish.” (People v Taylor, 75 NY2d 277; People v Molineux, 168 NY 264; People v Zackowitz, 254 NY 192; Gersten v Senkowski, 299 F Supp 2d 84; United States v Anderson, 851 F2d 384.) II. The prosecutor’s summation deprived Dr. Riback of a fair trial. (People v Calabria, 94 NY2d 519; People v Zimmer, 51 NY2d 390; People v Damon, 24 NY2d 256; People v Barber, 13 AD3d 898; People v Carney, 222 AD2d 1006; People v Mezon, 80 NY2d 155; People v Nazario, 168 AD2d 643; Kellogg v Skon, 176 F3d 447; People v Resek, 3 NY3d 385; People v Mendez, 22 AD3d 688.)

      P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), for respondent.
    I. The trial court did not err in allowing a prosecution expert to define “pedophilia,” “ephebophilia” and “sexual fetish.” (Matter of Gamer v New York State Dept. of Correctional Servs., 10 NY3d 358; Matter of Attorney Gen. of State of NY. v Firetog, 94 NY2d 477; People v Clarke, 81 NY2d 777; People v Liccione, 50 NY2d 850; People v McDowell, 47 NY2d 858; People v Ross, 21 NY2d 258; People v Tevaha, 84 NY2d 879; Matter of Gonzalez v State Liq. Auth., 30 NY2d 108; People v Vidal, 26 NY2d 249; Wightman v Campbell, 217 NY 479.) II. Reversal is not warranted because of alleged prosecutorial misconduct. (People v De Vito, 21 AD3d 696; People v Tarantola, 178 AD2d 768, 79 NY2d 954; People v Ashwal, 39 NY2d 105; People v Hardy, 34 AD2d 843; People v Patterson, 88 AD2d 694, 59 NY2d 794; People v Marks, 6 NY2d 67; People

      v McMillan, 66 AD2d 830; People v Demming, 116 AD2d 886, 67 NY2d 941; People v Konigsberg, 137 AD2d 142, 72 NY2d 912; People v Broady, 5 NY2d 500.)
   OPINION OF THE COURT

Read, J.

In late 2002, defendant Phillip Riback, a pediatric neurologist, was charged with criminal conduct involving sexual contact with 14 young male patients whom he treated between 1997 and 2002. There was extensive media coverage of defendant’s arrest and the charges he faced. At a lengthy trial in June 2004, the prosecution presented testimony from the 14 boys and their parents; the two police investigators who interviewed these children; a medical conduct investigator for the New York State Department of Health; a pediatric neurologist; and Dr. Richard Hamill, a psychologist who oversees one of the State’s largest sex offender treatment programs. The defense called personnel from defendant’s medical practice—the administrator, nursing supervisor, medical secretary, and defendant’s secretary; and the parents of four other boys whom defendant had treated. Defendant did not testify. The defense theory, pursued through cross-examination of the People’s witnesses and in defendant’s direct case, was that any unusual behavior that defendant displayed toward his patients was designed to create rapport and put them at ease; and that the most damning accusations made against him were the distorted or mistaken product of suggestive and coercive questioning by parents and police.

The jury convicted defendant of 12 felonies and 16 misdemeanors, and County Court imposed a determinate sentence of 48 years of imprisonment and five years of postrelease supervision. Defendant then moved pursuant to Criminal Procedure Law § 440.10 to vacate the judgment of conviction and sentence based upon evidence turned up during discovery in follow-on civil litigation and his posttrial diagnosis with Asperger’s syndrome. County Court issued an order denying the motion, and the Appellate Division granted defendant permission to appeal the order, which was consolidated with his direct appeal. The Appellate Division subsequently affirmed both the judgment and the order, with one Justice dissenting as to the judgment (57 AD3d 1209 [2008]). The court exercised its interest-of-justice jurisdiction to reduce defendant’s sentence to 20 years, and the dissenting Justice granted defendant leave to appeal to us. We now reverse.

Defendant advances two arguments: that the trial court erred by allowing Dr. Hamill to testify about the meaning of the terms “pedophilia,” “ephebophilia,” and “sexual fetish”; and that the prosecutor’s summation deprived defendant of a fair trial. In addition to disputing both propositions on the merits, the People contend that defendant abandoned his argument about the admissibility of Dr. Hamill’s testimony when he did not press it in the Appellate Division, and, in any event, that defendant did not preserve this claim for appellate review by making a specific objection at trial (see CPL 470.05 [2]).

We may resolve “any question of law involving alleged error ... in the criminal court proceedings . . . regardless of whether such question was raised . . . upon the appeal to the intermediate appellate court” (CPL 470.35 [1] [emphasis added]; see People v Colon, 71 NY2d 410, 413 n 1 [1988]). For purposes of determining whether we may reach the alleged trial error in this case, the only relevant consideration is whether the specific issue was presented to the trial court for decision.

Here, defense counsel did not object when the prosecutor asked Dr. Hamill to define the term “ephebophilia.” As a result, defendant’s argument to us—that the trial judge erred when he allowed this testimony because it was not helpful to the jury and was potentially very prejudicial—is not preserved for our review. Defendant did, however, preserve this argument with respect to Dr. Hamill’s testimony on the meaning of “sexual fetish” and “pedophilia.” This is apparent from the judge’s on-the-record explanation—after untranscribed conferences with the attorneys to hash out the scope of Dr. Hamill’s testimony—of why he decided to allow the People to “inquire into the area of sexual fetish,” which was followed by a discussion regarding the permissible extent of Dr. Hamill’s testimony about “pedophilia.” Defense counsel objected after the explanation, and again after the discussion. Although these objections were general in nature, the judge’s rulings only make sense as a response to arguments that Dr. Hamill’s testimony about “sexual fetish” and “pedophilia” would not be helpful to the jury and was potentially very prejudicial.

As to the merits, we conclude that the trial judge did not err when he allowed Dr. Hamill to explain what the term “sexual fetish” means and to give some examples, none of which described any specific behavior that defendant was alleged to have exhibited. This testimony, which County Court took obvious care to circumscribe, was beyond the ken of the average juror and was arguably useful to these jurors in their evaluation of the evidence. We conclude, however, that the trial judge should not have allowed Dr. Hamill to define “pedophilia” and the “central characteristics” of a “pedophile.” Unfortunately, it is difficult to imagine that this information was unknown to the jurors. Whether this error alone would cause us to reverse the judgment in this case is beside the point, though, because this testimony became a springboard for the prosecutor to venture well beyond the evidence and the bounds of fair comment during his summation.

The prosecutor told the jurors that they “heard the definition of a pedophile, didn’t you? Did you hear the definition of a pedophile from Dr. Richard Hamill? [Defendant] can’t stop.” A little later he again linked defendant and the word “pedophile,” reminding the jurors that they “heard the definition of pedophile. He’s having sex with boys in his office. He’s not concentrating on medicine. He’s not concentrating on medical questions. He’s concerned with gratifying his own sexual desire.”

Over objection and for a limited purpose, the trial judge allowed one of the police investigators to tell the jury that she interviewed 49 boys whom defendant had treated. In summation, the prosecutor parlayed this information into the following:

“[prosecutor]: [The police investigator] told you that 49 interviews had taken place, and she said some of the—they’re only charges because she talked to the parents, and the parents didn’t want to put their children through this. You got 15 sets of parents out here right now who are probably thinking the same thing after they heard what’s going on this week.”
“[defense counsel]: Objection, Your Honor.
“the court: Sustained, stricken. Disregard that, ladies and gentlemen.
“[prosecutor]: Do you blame those parents?
“[defense counsel]: Objection, objection.
“[prosecutor]: Who doesn’t want [not] to put their children through this?
“[defense counsel]: Objection, objection.
“the court: Sustained, sustained. Move on.”

This passage suggested to the jurors that defendant had sexually abused dozens of victims, and that these crimes had not been charged only because many parents were understandably unwilling to subject their children to the rigors of a trial. No evidence supported this suggestion, which was irrelevant to the charges against defendant even if true.

Further, one of the 14 boys recalled nothing except that defendant tickled him during examinations that took place roughly three years before the trial. When offered a copy of his grand jury testimony, this witness said the minutes would not refresh his recollection; that he couldn’t “really remember anything about” any of his visits to defendant’s office; and that “[i]t’s just foggy.” Although the charges related to this boy were subsequently dismissed, the prosecutor placed an incriminating gloss on his appearance on the witness stand:

“I picked up a copy of [the boy’s] Grand Jury testimony, which says what he told the police happened to him with [defendant], and I said, I’ll give you a copy of this piece of paper with the words on it from the Grand Jury; will that help you remember what’s going on[?] [The boy] says, no. [The boy] didn’t want to remember, doesn’t want to remember. He wants it to go away . . .
“Does that give you an idea of how difficult it is to walk into a courtroom when you’re fourteen or twelve or ten, place your hand on the Bible ... in front of fifteen strangers, and talk about what happened to you at the hands of that man? That is a little hint about what it’s like.”

Thus, the prosecutor invited the jury to conclude that the boy’s grand jury testimony recounted sexual abuse and that his lapse of memory showed how hard it was for children to acknowledge or disclose what defendant had done to them.

The prosecutor also advised the jury that the case was not “complex” even though there were “a lot of kids” because

“[a]ll you have to do is believe one kid. You believe one child, and it’s over, because this huge grand conspiracy . . . , it’s a house of cards . . .

“If you believe one child, you can believe all.”

These comments potentially diverted the jurors from their obligation to consider defendant’s guilt or innocence as to each crime charged with respect to each child. And although it was the prosecutor who persuaded County Court to sharply limit the number of parents of former patients testifying on defendant’s behalf, he remarked to the jury “Congratulations. They found four patients he didn’t molest.” Finally, the prosecutor observed, “[g]et enough lawyers involved and jury consultants to make sure they pick the perfect jury.” This intimated that defendant was exploiting his wealth to engineer a sympathetic jury, and that the jurors should not let him get away with it.

As the dissenting Justice in the Appellate Division put it, these numerous “summation misstatements of fact and law . . . when combined with the opinion by the prosecutor that defendant’s acts were those of a pedophile . . . rose to such a level that defendant was deprived of the fair trial to which he was entitled” (People v Riback, 57 AD3d 1209, 1220 [3d Dept 2008, Malone, J., dissenting]). We recognize that County Court repeatedly sustained defense counsel’s objections during the prosecutor’s summation, and instructed the jury to disregard parts of it. After a certain point, though, the cumulative effect of a prosecutor’s improper comments during summation may overwhelm a defendant’s right to a fair trial (see People v Calabria, 94 NY2d 519, 523 [2000]). Given the inflammatory nature of the charges in this case, there was a reasonable possibility that this prosecutorial misconduct contributed to the verdict.

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

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

Order reversed, etc.


text:
    [921 NE2d 140, 893 NYS2d 448]
    The People of the State of New York, Appellant, v Miguel Alemany, Respondent.
    Argued October 13, 2009;
    decided November 23, 2009

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney, New York City (Aaron Ginandes and Grace Vee of counsel), for appellant.
    In view of the clear and convincing evidence that defendant would be undomiciled and have no community ties or support upon his release from incarceration, the hearing court properly assessed defendant 10 points under factor 15 of the risk assessment instrument on the basis that defendant’s living situation was inappropriate. (People v Buss, 11 NY3d 553; People v Stevens, 91 NY2d 270; Doe v Pataki, 120 F3d 1263; People v Windham, 10 NY3d 801; Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745; People v Smith, 11 NY3d 797; Addington v Texas, 441 US 418; People v Geraci, 85 NY2d 359; Colorado v New Mexico, 467 US 310; Matter of Philip, 50 AD3d 81; Matter of Stavisky v Koo, 54 AD3d 432.)

      Legal Aid Society, Criminal Appeals Bureau, New York City (Denise Fabiano and Steven Banks of counsel), for respondent.
    The Appellate Division agreed with the hearing court that respondent was homeless and, therefore, made no new findings of fact, instead finding that the prosecution failed to show that, based on the totality of the circumstances, respondent’s living situation was “inappropriate” within the meaning of the Sex Offender Registration Act (SORA) Guidelines, a finding amply supported by the record. Furthermore, the adoption of the hearing court’s per se rule, as appellant urges, that homelessness automatically results in the assessment of points for an inappropriate living situation defies the clear intent of the SORA Guidelines and violates due process. (Matter of Buchanan v Espada, 88 NY2d 973; People v David W, 95 NY2d 130; E.B. v Verniero, 119 F3d 1077; Doe v Pataki, 3 F Supp 2d 456; Addington v Texas, 441 US 418; Matter of Poldrugovaz, 50 AD3d 117; Colorado v New Mexico, 467 US 310; Matter of Westchester County

      Med. Ctr. [O’Connor], 72 NY2d 517; People v Burden, 6 Misc 3d 1033[A], 2005 NY Slip Op 50286[U]; People v Di John, 48 AD3d 1302.)
   OPINION OF THE COURT

Read, J.

We are asked to decide whether homelessness may be considered an inappropriate living situation within the meaning of risk factor 15 of the risk assessment instrument (RAI) used to rate the threat to the community posed by a defendant covered under the Sex Offender Registration Act (SORA) (Correction Law art 6-C). We hold that a hearing court may assess points under this risk factor where there is clear and convincing evidence that the defendant is undomiciled and lacks any history of living in shelters or community ties. Because there was such clear and convincing evidence in this case, Supreme Court properly adjudicated defendant Miguel Alemany a level two sex offender.

I.

At approximately 6:30 p.m. on November 29, 2005, defendant was riding a bicycle toward a woman who was jogging on the bridle path in Central Park in Manhattan. After he passed her, defendant got off the bicycle, made kissing noises, and then lunged at the woman and attempted to grab her thighs. She managed to escape defendant’s grasp and ran away, with defendant in pursuit for a short distance. The woman hurried to the Central Park Police Precinct, where she reported this encounter.

She then accompanied three police officers as they patrolled the park by car, looking for defendant. They soon spotted him running down another woman on his bicycle. The police stopped defendant and arrested him; this second female was crying hysterically and shaking. Defendant admitted to the police that he had gone to Central Park to “have sex with a woman by force” because he was angry that his girlfriend had cheated on him. Defendant also told the police that he had chased after a third woman, who got away from him.

Defendant was charged in a felony complaint with two counts of attempted rape in the first degree (Penal Law §§ 110.00, 130.35 [1]), and one count of resisting arrest (Penal Law § 205.30). Prior to his arraignment on November 30, 2005, an interviewer from the New York City Criminal Justice Agency (CJA) assessed defendant’s risk of flight. The CJA interviewer’s report stated that defendant had been homeless for two years; did not “report a NYC area address”; did not “have a working telephone in residence/cell phone”; provided “no contacts” to CJA; was unemployed; did not have “other sources of financial support”; and did not “provide support for others.” Accordingly, defendant was “not recommended for ROR” (i.e., release on recognizance) because he was a “high risk for FTA” (i.e., failure to appear).

On January 17, 2006, defendant signed a written waiver of indictment, and agreed to be prosecuted on a superior court information charging him with attempted first-degree sexual abuse (Penal Law §§ 110.00, 130.65 [1]). That same day, defendant pleaded guilty to this crime in exchange for a sentence of six months in jail, to run concurrently with a 10-year period of probation. Defendant was informed that as a consequence of his plea he would be required to register as a sex offender pursuant to SORA.

Supreme Court put over sentencing in order for a presentence report (PSR) to be prepared by the New York City Department of Probation. The probation officer who interviewed defendant on January 17, 2006 noted on the PSR that he “appear[ed] to have minimal community ties, reporting that he [was] undomiciled and unemployed”; and “reported that he [was] currently undomiciled and was unable to provide an address or a shelter as to where he was residing.”

Prior to the SORA hearing, the People prepared and provided the court and defendant with the RAI, as required by Correction Law § 168-d (3). The People sought to assess defendant 75 points on the RAI, thus classifying him presumptively as a level two sex offender. As relevant here, the People assigned defendant 10 points under risk factor 15, “Living or Employment Situation” in the SORA Guidelines promulgated by the Board of Examiners of Sex Offenders (the Board). These 10 points were critical because a score of 70 or less on the RAI results in a presumptive risk assessment of level one.

With respect to risk factor 15, the SORA Guidelines state simply that the “offender’s living or employment situation is inappropriate (10 pts).” The accompanying commentary expands on the meaning of “inappropriate” as follows:

“Many sex offenders are opportunistic criminals whose likelihood of reoffending increases when their release environment gives them access to victims or a reduced probability of detection. An example of an offender in an inappropriate work situation is a child molester employed in an arcade or as a school bus driver. If the same offender were to live near an elementary school playground, his living environment would be inappropriate. An offender is assessed 10 points in this category if either his work or living environment is inappropriate” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [SORA Commentary], at 17-18 [2006] [citation omitted]).

At the SORA hearing on February 17, 2006, defense counsel asserted that defendant should not be assigned points under risk factor 15. First, he stated his “understanding that . . . defendant has been advised that when he is released, that he should go to the Bellevue men’s shelter as he has no other place to live and then he will be working with [a community organization] to try to find him employment.” He argued that risk factor 15 was limited to “living in a place, where there is for example a child or living with someone who had been abused in the past.”

The People advanced a less restrictive reading of risk factor 15. The prosecutor noted that “defendant was known to be prior to this case basically homeless and not working”; further, although “[t]he commentary in the sex offender guidelines” talks about

“living situations or work situations that give defendants] access to victim[s] . . . [it] also talks about situations where there is a reduced probability of [detection] and given that [defendant] has no community ties, if he were to . . . commit this type of crime again, there is a reduced possibility of detection because he will be hard to locate [which] is a factor . . . relevant to whether he poses a risk.”

Defense counsel countered that when the SORA Commentary on risk factor 15 refers to “a reduced probability of detection,” this means only that a defendant “will . . . be in a certain situation where because of his relationship with possible victims, that will never be detected not because someone is homeless but because someone lives in the type of situation for example, [with] a niece and it will not be detected.” He further argued that homelessness was relevant to whether defendant would be “adequately supervised,” which was covered by a different risk factor in the RAI, and “here[,] in fact, [defendant] is given five additional points [under risk factor 14] because while he will be released with supervision, and not released with no supervision, he won’t be released with specialized supervision. So he already is being given points because he has a somewhat precarious supervision situation.”

Supreme Court then asked if either attorney wanted an evidentiary hearing. When both responded negatively, the judge said that he “would like an opportunity to reflect on the arguments put forward” prior to making his decision.

At the next court appearance on March 3, 2006, Supreme Court summarized the arguments made by both defense counsel and the prosecutor at the SORA hearing relative to risk factor 15; discussed a case cited by defense counsel as well as another case; and noted that he had reviewed the SORA Guidelines and Commentary. Having “fully considered” the arguments, the judge adjudicated defendant a level two sex offender. Explaining his decision, he stated that “the fact that . . . defendant is undomiciled creates a very difficult situation as far as the probability of detection for any violations,” and that there was no reason for a downward departure from the presumptive risk level. On March 10, 2006, Supreme Court imposed the agreed-upon sentence on defendant.

Defendant subsequently appealed his classification as a level two sex offender. On November 6, 2008, the Appellate Division modified Supreme Court’s order “on the law” by reducing defendant’s classification to level one. Citing People v Ruddy (31 AD3d 517 [2d Dept 2006], lv denied 7 NY3d 714 [2006]), a case handed down after Supreme Court’s SORA determination here, the Court reasoned that

“[t]he evidence established that, at most, defendant’s future living situation was uncertain in that, although he was described as homeless at the time of his arrest, upon his release from incarceration under the supervision of the Department of Probation, he was advised to go to the Bellevue men’s shelter where he would be assisted by a community organization in trying to find employment. This was insufficient as a matter of law to meet the People’s burden of showing, by clear and convincing evidence, that defendant’s living situation was inappropriate” (People v Alemany, 56 AD3d 251 [1st Dept 2008]).

We subsequently granted the People leave to appeal (12 NY3d 704 [2009]), and now reverse.

II.

The “primary government interest” underlying SORA is “protecting vulnerable populations^] and in some instances the public, from potential harm” posed by sex offenders (L 1995, ch 192, § 1 [“Legislative purpose or findings”]; see also People v Mingo, 12 NY3d 563, 574 [2009]). To safeguard this interest, the Legislature sought to furnish law enforcement with sufficient information to track and monitor a sex offender’s whereabouts (see e.g. Correction Law § 168-b [1] [a]; § 168-c [2]; § 168-d [2]; § 168-e [1]; §§ 168-f, 168-j, 168-k). Concomitantly, the Board recognizes that sex offenders are more likely to reoffend if their living situation upon release “gives them access to victims or a reduced probability of detection” (SORA Commentary, at 17 [risk factor 15]).

Defendant interprets risk factor 15 as limited to a living situation that “gives [a sex offender] access to victims or opportunities to perpetrate crimes out of the public eye with the accompanying reduced probability of detection” (emphasis added), citing as an example a case where a child molester planned to reside with small children who were family members. The SORA Commentary gives a different example—i.e., a child molester “liv[ing] near an elementary school playground” (id. at 18). What both illustrations have in common is proximity to potential victims, not an increased risk that any future crimes may go unreported because of the setting in which they are carried out.

We see no reason to interpret “reduced probability of detection” to mean only access to victims, whether or not “out of the public eye.” A sex offender who has no address, does not frequent a shelter or participate in any community programs and is unemployed is, for these reasons, more difficult for law enforcement authorities to locate. This living situation presents a “reduced probability of detection” because the inability to find a sex offender reduces law enforcement authorities’ capacity to discover or investigate any future crimes the sex offender might commit, to connect him to those crimes, or to apprehend him. And a lessened likelihood of getting caught is thought to increase the risk of recidivism. Finally, our interpretation is consistent with SORA’s overall concern with keeping track of sex offenders, and does not create any overlap between risk factors 15 and 14, as defendant claims. The latter assigns points depending on the existence and specialization of supervision afforded a sex offender upon his release into the community, independent of his living situation (see SORA Commentary, at 17 [risk factor 14]).

Here, there was clear and convincing evidence that defendant was homeless and lacked any history of living in shelters or community ties. Specifically, the CJA interviewer’s report, based on information provided by defendant himself, indicated that he had been homeless for two years, that he could not provide a “NYC area address” where he resided, that he did not have a residential or cell phone, and that he furnished “no contacts” to the CJA. Similarly, the PSR stated that defendant “report[ed] that he [was] undomiciled and unemployed” and was “currently undomiciled and . . . unable to provide an address or a shelter as to where he was residing.”

Moreover, this evidence was not negated by defense counsel’s professed “understanding” that defendant had been “advised” to go to the Bellevue men’s shelter upon his release. As the Board has explained, the “Release Environment” section of the SORA Guidelines, which includes risk factor 15, “will involve an assessment of the offender’s planned work and living arrangements upon his release from custody. Because those arrangements are prospective and can readily change, the Board chose not to weigh this section as heavily as others in the assessment instrument” (SORA Commentary, at 6). In short, the uncertainty inherent in a sex offender’s future living arrangements has been taken into account in the weight afforded factor 15; it is not a reason to disregard factor 15 in an individual case. And as the People point out, an anomaly would be created if a sex offender planning a stable living situation may be assessed points under risk factor 15, depending upon the particular circumstances, but a homeless sex offender may never be assessed points under this risk factor simply because he might someday choose to live in a shelter.

Finally, we emphasize that we are not creating any per se rule such that a sex offender who is homeless must always be assessed points under risk factor 15. In an individual case, there may be evidence that a sex offender has a history of living in shelters, or community ties. In Ruddy, for example, the defendant had been renting a room and living in a “sober house” at the time of his arrest. Furthermore, the defendant stated that, upon his release from prison, he intended to resume living at the sober house, assuming that his room had not been rented to someone else. But he also informed the probation officer that, in the event he could not return to the sober house, he would find housing in a shelter (Ruddy, 31 AD3d at 518-519 [Rivera, J., dissenting]). That is, the defendant’s living situation was “uncertain” in Ruddy because it was not known at the time of the SORA hearing whether he would be living in the sober house or a shelter upon his release from incarceration; there was no evidence showing that he would likely live on the streets after he left prison, as was the case here.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the order of Supreme Court reinstated.

Judges Ciparick, Graffeo, Smith, Pigott and Jones concur; Chief Judge Lippman taking no part.

Order reversed, etc.


author: Smith, J. Chief Judge Lippman. (dissenting in part).

text:
    [920 NE2d 930, 892 NYS2d 823]
    The People of the State of New York, Respondent, v Simon Samandarov, Appellant.
    Argued October 21, 2009;
    decided November 24, 2009

      POINTS OF COUNSEL

      Law Office of Ronald L. Ruby; New York City (Ronald L. Ruby of counsel), for appellant.
    I. The trial court erred in denying defendant’s CPL 440.10 motion without a hearing. The motion alleged the Rosario material from the People’s crucial witness, Jose Ramirez, had not been provided to the defense. (People v Castillo, 34 AD3d 221, 8 NY3d 879; People v Campbell, 7 AD3d 409, 3 NY3d 672; People v Poole, 48 NY2d 144; People v Baxley, 84 NY2d 208; People v Brown, 56 NY2d 242; People v Farrell, 207 AD2d 560; People v Rahman, 231 AD2d 745; People v Robles, 194 AD2d 750; People v Oliviery-Perez, 248 AD2d 645, 91 NY2d 1011; People v Bacchi, 186 AD2d 663, 81 NY2d 760.) II. The jurors’ speculation about defendant’s link to the Eduard Nektalov murder and Russian organized crime, and the jurors’ fears of the courtroom audience looking at their faces may have prejudiced substantial rights of defendant and the trial court abused its discretion by denying the CPL 330.30 (2) motion without a hearing. (People v Gardella, 55 AD2d 607; People v Shuler, 55 AD2d 609; People v Magnano, 175 AD2d 639, 79 NY2d 860; People v Rivera, 304 AD2d 841; People v Lavender, 117 AD2d 253, 68 NY2d 995; People v Maragh, 94 NY2d 569; People v Brown, 48 NY2d 388.)

      Richard A. Brown, District Attorney, Kew Gardens (Laura T Ross and John M. Castellano of counsel), for respondent.
    I. The Appellate Division correctly held that defendant was not entitled to a hearing on his CPL 440.10 motion, because defendant failed to proffer sufficient support for his claim that a Rosario violation occurred and that he was prejudiced. (People v Poole, 48 NY2d 144; People v Session, 34 NY2d 254; People v Brown, 56 NY2d 242; People v Baxley, 84 NY2d 208; People v Friedgood, 58 NY2d 467; People v Farrell, 207 AD2d 560; People v Rahman, 231 AD2d 745; People v Robles, 194 AD2d 750; People v Poole, 48 NY2d 144; People v Machado, 90 NY2d 187.) II. Defendant’s allegations of juror misconduct, which contained no sworn allegations of fact from anyone having personal knowledge, were not sufficient to warrant a hearing. Further, defendant could not show that any outside influence was at work in the jurors’ deliberations, or that defendant was prejudiced. (People v Friedgood, 58 NY2d 467; People v Covington, 44 AD3d 510; People v Taus, 280 AD2d 499; People v Boddie, 240 AD2d 155; People v Nolan, 268 AD2d 601; People v Kerner, 299 AD2d 913; Alford v Sventek, 53 NY2d 743; People v Brown, 48 NY2d 388; People v Maragh, 94 NY2d 569; People v Testa, 61 NY2d 1008.)
   OPINION OF THE COURT

Smith, J.

We hold that Supreme Court acted within its discretion in denying without a hearing defendant’s post-trial motions alleging juror misconduct and a Rosario violation.

I

Defendant was convicted of attempted murder, second degree assault and weapons offenses based on the shooting of Alik Pinhasov. The key witnesses at trial were Pinhasov and Jose Ramirez. Pinhasov testified that defendant shot him. Ramirez, who lived across the street from the place where the shooting occurred, testified that he heard gunshots, looked out his window and saw a man on the ground and another man—who, from Ramirez’s description, was apparently defendant—holding a gun. The People also proved that the gun used to shoot Pinhasov was recovered from defendant’s pocket minutes after the shooting.

Several weeks after the verdict, defendant moved to set it aside pursuant to CPL 330.30 (2), on the ground of “improper conduct on the part of a member of the jury.” Supreme Court denied the motion without a hearing, and pronounced sentence. Eighteen months later, defendant moved pursuant to CPL 440.10 to vacate his conviction on the ground that the People had violated their duty under People v Rosario (9 NY2d 286 [1961]) by failing to turn over to defendant statements made by Ramirez to the police before trial. Supreme Court denied this motion too without a hearing. The Appellate Division affirmed defendant’s conviction and sentence, and the denial of his CPL article 440 motion (People v Samandarov, 56 AD3d 575 [2008]). A Judge of this Court granted leave to appeal (12 NY3d 762 [2009]).

We review the decisions to deny hearings on both the CPL article 330 and the CPL article 440 motions for abuse of discretion (People v Friedgood, 58 NY2d 467, 470 [1983]). We conclude that discretion was not abused, and we affirm.

II

The basis for defendant’s CPL article 330 motion was an affirmation of his counsel, which in turn relied on a newspaper article and on information given to counsel by an unnamed “neighbor” said to be a “co-worker” of the foreperson of the jury.

The newspaper article mentioned in the CPL article 330 motion appeared in the New York Daily News a few days after the verdict. It suggested that there was a connection between the shooting of Pinhasov and the later murder of Pinhasov’s cousin, Eduard Nektalov, who was, according to the newspaper article, “executed in broad daylight” eight months before defendant’s trial. Defendant’s appellate brief also relies on another newspaper article, not cited in his CPL article 330 motion, that appeared in the New York Times during the trial; that article said the Pinhasov shooting “has links” to the Nektalov murder. The Times article was not mentioned on the record at trial, but the judge may have had some warning of it: on the day before the article appeared, he said to the jurors, “I want to once again emphasize in the strongest possible terms that you are not to read about the case in tomorrow’s newspapers.” There is no evidence that any juror disobeyed that instruction. Nektalov’s name came up only once at the trial, when a police officer testified that Nektalov served as a translator at the officer’s interview with Pinhasov.

The Daily News article that appeared after the verdict reported that, though the Nektalov murder had not been mentioned at trial, “jurors said they were aware there may have been a link and that those involved . . . may have ties to mob activities.” It quoted a juror as saying “Of course we were aware of it. . . and worried about it. . . . I was looking out [in the audience] thinking ‘Gee, they can see all of our faces.’ ” According to counsel’s affirmation in support of the CPL article 330 motion, counsel “confirmed” with the Daily News reporter that the article was accurate and that the juror quoted was the foreperson. Counsel also said his neighbor had told him that the jury foreperson “had discussed her jury experience with her fellow employees and again acknowledged that the jury talked about defendant’s involvement with the Russian Mob throughout the trial and that the jury was preoccupied with this issue during the course of the trial.” No affidavit was submitted from either the neighbor or the jury foreperson.

Even putting aside the hearsay nature of this evidence, Supreme Court was justified in ruling that defendant did not submit enough proof of juror misconduct to warrant a hearing. Defendant submitted nothing to show that jurors had received from outside the courtroom any information about the Nektalov murder or any other alleged “Russian Mob” activities. The evidence showed at best that jurors had speculated among themselves that the case had “Russian Mob” connections—and the nature of the case almost invited that sort of speculation. Indeed, the danger was so obvious that defendant chose to bring it up in voir dire, mentioning a possible “perception” that “if you are a member of this group you must be involved in some sort of illegal activity” and asking if anyone had “problems or preconceived stereotypes in their minds concerning Russian-Americans.” Defense counsel returned to the theme during trial, asking Pinhasov if he had any history of “loan sharking” or “money laundering.” Thus, if the jurors in this case did converse among themselves about the “Russian Mob,” there is no reason to think that anything outside the courtroom prompted that conversation. Absent some “outside influence” on the jurors, this record provides no ground for impeaching their verdict (see Alford v Sventek, 53 NY2d 743, 744 [1981]).

Ill

Ramirez, whose testimony placed a gun in defendant’s hand immediately after the shooting, was asked on cross-examination if anyone had interviewed him before trial. He replied: “Just the officers that came up that night [i.e. the night of the shooting] and the district attorney that came to see me.” Notes of the police interview on the night of the crime were turned over to the defense as Rosario material. In support of his CPL article 440 motion, defendant tried to show that police officers had also taken part in one or two later interviews, and that a police officer had taken notes at those interviews that had not been turned over.

In support of his motion, defendant submitted an affidavit from Ramirez. The affidavit was typed, but contained handwritten insertions made by an investigator employed by defense counsel. The affidavit as typed says that “uniformed New York City Police Officers and two Detectives came to my apartment on two separate times and dates to conduct interviews.” The handwritten insertions add the information that the police officers came “along with the District Attorney, Queens County” and say, at one point, that they came “a third time” (thus creating an apparent inconsistency in the affidavit). Typed language not changed in handwriting says that, on each of two occasions, a “Detective made hand written entries into a spiral note pad.”

In opposition to defendant’s motion, the People submitted a second affidavit from Ramirez, retracting some of the statements made in the first one. The second Ramirez affidavit says that an interview by police officers, in which an officer wrote on a pad, occurred only on the night of the shooting. There were, according to the second Ramirez affidavit, two later visits from the Assistant District Attorney (ADA) responsible for the case, and on at least one of those occasions the ADA was accompanied “by two blond ladies from the District Attorney’s Office.” At those later meetings, according to Ramirez’s second affidavit, no police officers were present and no one took notes. In explanation of his previous affidavit, Ramirez testified that defense counsel’s investigator had brought him the typed version of the affidavit; that Ramirez told him it was “not correct” and that its deficiencies included “the fact that he did not mention the Assistant District Attorney’s visits”; that the investigator then “wrote something on the papers about the District Attorney and . . . pressured me to sign them .... I signed the papers so that he would leave me alone.”

Along with Ramirez’s second affidavit, the People submitted several others, among them one from the ADA and one each from the “two blond ladies”—a detective investigator and a paralegal, both employed by the District Attorney’s office. These three witnesses confirmed Ramirez’s second account: they testified that all three of them had attended one interview with Ramirez, and that the ADA and the detective investigator had attended another. The People submitted copies of datebook entries and time sheets confirming the ADA’s and the detective investigator’s attendance at the interviews. The ADA, the detective investigator and the paralegal all said that no police officer was present with them at the interviews and that no one took notes. The detective investigator and the paralegal testified that they had nothing with them to write on when they attended the meetings, and the ADA said she did not possess, and never used, a spiral pad. The ADA’s affidavit also explained that no police detective would have been assigned to investigate this case after the date of the incident, because, from a police department point of view, the case had been closed by arrest on the same day. To confirm this, the ADA attached a police department form, dated the date of the crime, bearing the notation: “CASE CLOSED.”

Defendant argues that the material submitted on the CPL article 440 motion, taken as a whole, was enough to require an evidentiary hearing on the question of whether Rosario material—specifically, police notes of interviews with Ramirez—existed that was not turned over to the defense. We assume that defendant would be correct if the first Ramirez affidavit had stood uncontradicted, or if only the two contradictory Ramirez affidavits were in the record. But that is not the case. The People submitted detailed proof that Ramirez was simply mistaken the first time, and the Supreme Court reasonably found that proof strong enough to make a hearing unnecessary.

Indeed, it is hard to see how Ramirez could have been correct when he said, in his first affidavit, that police officers visited him on one or two occasions in addition to their visit on the day of the crime; a contemporaneous record shows that the police closed the case that day. And the courts below reasonably discounted Ramirez’s original recollection that a “Detective” took notes on a “spiral note pad” at each interview, for that was contradicted not only by Ramirez’s second affidavit but by the detailed accounts of the meetings by the ADA and her two colleagues, all of whom swore that no police officer was present, and that they had no spiral pads and took no notes. The likelihood is overwhelming that Ramirez, in his first affidavit, simply erred in thinking that the police detective and the spiral pad that he saw on the day of the crime were also present at the later interviews.

It is, no doubt, theoretically possible that a hearing could show otherwise—could show the existence of suppressed Rosario material, in the form of handwritten notes that everyone present at the interviews says never existed. Supreme Court, however, did not abuse its discretion in finding this possibility too slim to justify the burden and expense of a hearing.

IV

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

Chief Judge Lippman. (dissenting in part).

In far from lucid trial testimony, the shooting victim, Alik Pinhasov, stated that on the evening of December 16, 2003 he went out in the company of three fellow members of the insular Bukharan community. As is here relevant, the group included Pinhasov, his cousin Boris and defendant. There was testimony that Boris owed Pinhasov $1,200 and that the debt had been a source of bad feeling. According to Pinhasov, the four men drank heavily, each having purchased at the excursion’s outset a liter of vodka and of cognac, and as the night progressed there were flashes of temper and occasional episodes of violence. Pinhasov testified that the evening’s entertainment, such as it was, came to an end when defendant took out a gun and fired it twice, the first shot just missing Pinhasov’s back and the second hitting him in the buttocks. The shots were heard by Jose Ramirez, who, according to his trial testimony, immediately went to a window of his fifth story apartment and observed, from a distance of some 50 feet, a person lying in the street being lifted by two other people. About eight feet away from this group, Ramirez observed another person in a long black coat and pants with a white stripe running down the side of each leg, yelling and waving his hands in the air. Ramirez thought he saw a gun in one of that person’s hands. Ramirez’s wife called 911 and the police responded. At the time of his closely ensuing apprehension, defendant was described by the arresting officers as having been clad in a leather jacket and sweat pants. A .22 caliber pistol was recovered from his person, and a firearms expert testified that the bullet removed from Pinhasov had been fired from that weapon. Ramirez was interviewed by the police after the arrest, but the extent of the People’s pretrial disclosure with respect to Ramirez was a memo book entry containing Ramirez’s name and pedigree information. Specific inquiry was made of Ramirez on cross-examination whether he had been asked by the investigating detective or the Assistant District Attorney for a statement, and he replied that no such request had been made.

The defense at trial was that Boris, and not defendant, had shot Pinhasov and that the gun had been handed to or picked up by defendant in the interval between the shooting and his arrest. Pinhasov, defendant urged, had accused defendant to protect his cousin who, for a period of weeks, had been held in connection with the shooting.

Shortly after the trial an article appearing in the New York Daily News reported that jurors had been aware of possible “link[s]” between the matter being tried and the murder of one Eduard Nektalov, and that one juror had stated that there was concern within the jury over the possibility of Russian mob involvement in one or both crimes.

Relying on this newspaper account, defendant moved pursuant to CPL 330.30 to set aside the verdict. He argued that the jury had been impermissibly influenced by external sources. The People responded that the motion was based on mere hearsay and that there was no indication that external influences had affected the jury’s deliberative process. Rather, the People urged that the verdict turned on the properly admitted proof tending to show that defendant, and not Boris, shot Pinhasov. The decisive evidence, claimed the People, was the testimony of Ramirez, the one witness whose motives were not shrouded by the impenetrable-seeming web of personal, business and familial relationships within the Bukharan community. In their opposition papers, the People prominently recounted that immediately after the trial and in the presence of the trial court:

“the jury was asked, in sum and substance, by the attorney’s [sic] what evidence caused them to convict the . . . defendant of the shooting. Several jurors replied, and the others nodded in acknowledgment, that it was the testimony of the independent eyewitness Jose Ramirez . . . which ultimately was found to be most compelling.”

Some six months after the judgment of conviction had been rendered, Ramirez was visited by an investigator hired by defendant. At the investigator’s request, Ramirez, after having had handwritten changes inserted, executed an affidavit stating in substance that he had on three occasions been interviewed by detectives and the Assistant District Attorney and that on each occasion “a Detective made hand written entries into a spiral note pad after each question.” Based on this affidavit, defendant brought a CPL 440.10 motion to vacate the judgment of conviction. It was argued that the nondisclosure of the interview notes referred to in the Ramirez affidavit constituted a Rosario violation, and that, inasmuch as defendant was thereby prevented from effectively cross-examining a crucial prosecution witness, he had been deprived of a fair trial.

The People responded by obtaining their own affidavit from Ramirez. In this affidavit, Ramirez stated that no notes had been taken on the two occasions subsequent to the night of the crime that he had been visited by Assistant District Attorney Kane and “two blond ladies from the District Attorney’s Office.” He explained that he had only signed the prior affidavit because he was badgered into doing so by defendant’s investigator. The People’s response also included affidavits by Assistant District Attorney Kane, and, presumably, the “two blond ladies” mentioned for the first time in Ramirez’s second affidavit, Detective Investigator Elizabeth Curcio and a paralegal in the District Attorney’s office named Joanna Fiorentini. All stated that they had participated in interviews with Ramirez but that no notes had been taken.

The motion court found that, in light of Ramirez’s recantation and what the court referred to as “the People’s substantial evidentiary showing” of what had occurred during the investigatory interviews of Ramirez, no issue of fact had been raised as to the existence of undisclosed Rosario material by the initial Ramirez affidavit. The court also was of the view that, even if there had been a Rosario violation, there was no reasonable possibility that it affected the outcome of the trial. The Appellate Division affirmed in a brief decision and order (56 AD3d 575 [2d Dept 2008]).

While I am in agreement with the majority that defendant’s CPL 330.30 motion was correctly denied, since there was no showing that the verdict was attributable to any outside influence, I part with the majority respecting the propriety of the summary denial of defendant’s CPL 440.10 motion.

Ordinarily, when there are conflicting affidavits on a material matter a triable issue turning on credibility inappropriate for summary resolution is raised. This case presents no occasion to depart from this basic rule of proceeding. Indeed, the governing statute, CPL 440.30, specifically requires an evidentiary hearing where, as here, defendant’s allegations are not insufficient as a matter of law to establish the alleged violation (see CPL 440.30 [4] [a], [b]); are not “conclusively refuted by unquestionable documentary proof’ (CPL 440.30 [4] [c]) or “contradicted by a court record or other official document,” or “made solely by the defendant and [without support] by any other affidavit or evidence” (CPL 440.30 [4] [d] [i]); and there are no other grounds to conclude that “there is no reasonable possibility that [defendant’s allegation of a Rosario violation] is true” (CPL 440.30 [4] [d] [ii]; see People v Baxley, 84 NY2d 208, 214 [1994]).

While the majority, presumably in an attempt to satisfy the last of these dispensational factors (the others plainly being unavailable), labor to show that Ramirez’s first affidavit must have been a mistake, the proposition is difficult to embrace on this record, much less as a matter of “overwhelming” likelihood (majority op at 440). Before us are two affidavits by the same affiant evidently contradictory in a crucial respect—in one, which the affiant apparently took care to read and correct where he thought emendation was necessary, the affiant purports to recollect with a fair degree of specificity that his statements were recorded by a detective on three occasions in a spiral notebook; in the other, he states that none of this happened. All that would appear “overwhekningly” likely on this record is that these affidavits are inconsistent. There appears no ground upon which one deliberately prepared and executed sworn statement might be dismissed as “mistaken” and the other embraced as true.

Ramirez may well have wished to be rid of defendant’s investigator, but that motive, without more, does not adequately explain his execution of an affidavit seemingly at odds with his trial testimony that no statement had been taken from him. Nor are the circumstances of his recantation of the affidavit, nearly a year after signing it, set forth. The record does not disclose, for example, whether, as would seem likely, the detective from the District Attorney’s office who obtained the recanting affidavit explained to Ramirez that his original affidavit, if not recanted, raised, at the very least, the possibility of a new trial at which he would be called upon to testify all over again and at which he would be impeached on the basis of his affidavit and prior testimony. Indeed, there is no reason to suppose that Ramirez was not at least as eager to be rid of the District Attorney’s minion as he had been to be rid of the defendant’s. In addition, while there were affidavits before the motion court affirming that the trial assistant, Ms. Kane, and two associates from the District Attorney’s office had not, during their interviews of Ramirez, taken a single note, these submissions, even if accepted at face value, do not exclude the possibility of undisclosed recorded statements from Ramirez since, as defendant points out, Ms. Kane entered the prosecution late, succeeding the originally assigned ADA after an earlier Rosario violation, and investigators other than the affiants had been involved in the development of the prosecution’s case.

For the foregoing reasons, the motion court’s conclusion that no triable issue had been raised as to whether there were undisclosed prior statements by Ramirez bearing upon the subject matter of his testimony appears to have been unwarranted. Even more unwarranted was the motion court’s view that, even if such statements existed, there was no reasonable possibility that they could have affected the trial’s result. Without knowing the content of any such statements, it is manifestly impossible to say whether they could have been used by the defense to raise a reasonable doubt as to defendant’s commission of the shooting. It is true that the sufficiency of the People’s case did not depend on Ramirez’s testimony. But the strength of the case, as distinguished from its sufficiency, concededly did. Pinhasov’s account of the shooting and the antecedent events was, to say the least, not a model of clarity, and a significant issue evidently remained after his delayed accusation, and after his testimony, as to whether his shooting had not actually been the drunken work of his debtor cousin Boris, with whom Pinhasov was “very close,” but who, according to Pinhasov, immediately after the shooting stood over Pinhasov enraged, screaming that Pinhasov was “vomit” and “garbage.” It was Ramirez’s testimony that seemed to crystalize the situation for the jury, and resolve doubts naturally remaining in the wake of Pinhasov’s account, in favor of convicting defendant. In view of the pivotal importance of Ramirez’s testimony—a circumstance the majority completely elides—it does not seem possible to say that nothing he could have said during the shooting’s investigation as to what he saw, or thought he saw, or did not see from his fifth story window in the small hours of the morning of December 17, 2003, could possibly have been used by defense counsel to alter the trial’s course in defendant’s favor.

Where “a defendant can articulate a factual basis for the assertion that a prosecutor is improperly denying the existence of [Rosario material],” the court is bound to determine whether such material exists (see People v Poole, 48 NY2d 144, 149 [1979]). Here, such a factual basis was presented and it does not appear that its truth can be tested except by an evidentiary hearing. It is, of course, perfectly accurate to say as the majority does that it is “theoretically possible that a hearing could show . . . the existence of suppressed Rosario material” (majority op at 440). But this is not a rationale for dispensing with a hearing; it is precisely because the possibility of suppressed Rosario material has been shown to exist that a hearing must be had (see CPL 440.30 [5]). The possibility of suppressed Rosario material is only theoretical because it has not been tested.

Accordingly, I would reverse the order denying the CPL 440.10 motion and grant the motion to the extent of directing a hearing to determine whether there exists or existed undisclosed Rosario material pertinent to Mr. Ramirez’s trial testimony and, if so, whether the nature of any such material raises a reasonable possibility that its nondisclosure materially affected the trial’s outcome (see CPL 240.75; and see People v Baxley, 84 NY2d 208 [1994]).

Judges Cipabick, Gbafpeo, Read and Jones concur with Judge Smith; Chief Judge Lippman dissents in part in a separate opinion in which Judge Pigott concurs.

Order affirmed.

       Pinhasov evidently did not implicate defendant when the police arrived immediately after the shooting and the issue, despite the “CASE CLOSED” notation upon which the majority places such emphasis, was sufficiently unclear that Boris was held for weeks in connection with the shooting.