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

text:
    [933 NE2d 186], 906 NYS2d 788]
    The People of the State of New York, Respondent, v Nathan J. Reome, Appellant.
    Argued May 6, 2010;
    decided June 17, 2010

      POINTS OF COUNSEL

      Frank A. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), for appellant.
    I. The lower courts erred in finding accomplice corroboration as the evidence did not tend to connect appellant to the commission of the crime, was not independent, and was insufficient as a matter of law. (People v Glasper, 52 NY2d 970; People v Cunningham, 48 NY2d 938; People v Daniels, 37 NY2d 624; People v Kress, 284 NY 452; People v Moses, 63 NY2d 299; People v Hudson, 51 NY2d 233; People v Cross, 25 AD3d 1020; People v Wasserman, 46 AJD2d 915; People v Cona, 49 NY2d 26; People v Nitzberg, 287 NY 183.) II. The lower court erred in denying appellant Nathan Reome severance. (People v Snare, 216 AD2d 674; People v Mahboubian, 74 NY2d 174; People v Payne, 35 NY2d 22; Bruton v United States, 391 US 123; People v Cruz, 66 NY2d 61.) III. The lower court’s sundry errors deprived appellant of a fair trial. (Pointer v Texas, 380 US 400; People v Hudy, 73 NY2d 40; Davis v Alaska, 415 US 308; Chambers v Mississippi, 410 US 284; Washington v Texas, 388 US 14; People v Gissendanner, 48 NY2d 543; Delaware v Fensterer, 474 US 15; People v Crimmins, 36 NY2d 230; Pavel v Hollins, 261 F3d 210.)

      William J. Fitzpatrick, District Attorney, Syracuse (James P.

      Maxwell of counsel), for respondent.
    I. The jury was presented with legally sufficient evidence corroborating the testimony of the accomplice. (People v Allen, 9 NY3d 1013; People v Contes, 60 NY2d 620; People v Besser, 96 NY2d 136; People v Steinberg, 79 NY2d 673; People v Glasper, 52 NY2d 970; People v Rumble, 45 NY2d 879; People v Hudson, 51 NY2d 233; People v Cunningham, 48 NY2d 938; People v Breland, 83 NY2d 286; People v Pierce, 303 AD2d 966.) II. The trial court properly denied defendant’s motion for a separate trial. (People v Buccina, 62 AD3d 1252; People v Mahboubian, 74 NY2d 174; People v Allaway, 172 AD2d 617, 78 NY2d 1009; People v Suber, 256 AD2d 1086, 93 NY2d 979; People v Bornholdt, 33 NY2d 75, cert denied sub nom. Victory v New York, 416 US 905; People v Melendez, 285 AD2d 819, 97 NY2d 731; People v Cruz, 66 NY2d 61, 481 US 186; People v Berg, 59 NY2d 294; People v Davis, 58 NY2d 1102.) III. The rulings of the trial court did not deprive defendant of a fair trial. (Werner v Sun Oil Co., 65 NY2d 839; People v Wernick, 89 NY2d 111; People v Taylor, 75 NY2d 277; People v Carroll, 95 NY2d 375; People v MacDonald, 63 AD3d 1520; People v Buccina, 62 AD3d 1252; Pavel v Hollins, 261 F3d 210; People v Guidice, 83 NY2d 630; People v Moore, 46 NY2d 1.)
   OPINION OF THE COURT

Smith, J.

Defendant was convicted of participating in a rape with three other men. One of his alleged accomplices, Andrew Hilborn, was the only witness to identify him. The issue is whether Hilborn’s testimony was corroborated as CPL 60.22 (1) requires. We hold that it was.

I

The main witnesses at trial were Hilborn and the victim. Both described a rape by four men. The victim did not identify any of the four, but Hilborn said he participated in the crime with Scott MacDonald, Santino Buccina and defendant. MacDonald, Buccina and Hilborn were connected to the rape by DNA evidence, but defendant was not.

Hilborn and the victim gave detailed and very similar accounts. According to both, the victim was intoxicated and lost on the streets of Syracuse in the middle of the night when she got into a car with four men who agreed to help her. Hilborn testified that MacDonald was driving, Buccina was in the front passenger seat, and the victim sat in back with Hilborn on her left and defendant on her right; the victim, without identifying the men, described the same seating arrangement.

According to both Hilborn and the victim, the following events then took place: The victim borrowed a cell phone from one of the men and tried unsuccessfully to call someone who might help her find her way. Later, she fell asleep. While she slept, the car drove out of town, and stopped in an isolated spot. The men took the victim out of the car, removed her pants and bound her with duct tape. After she woke up, they removed the duct tape, and the driver of the car (MacDonald in Hilborn’s telling) threatened her with harm unless she submitted to sex.

Both witnesses’ accounts continued: The victim got back in the car and was raped, in order, by the driver, the man who had sat on her right, the man from the front passenger seat and her left-hand neighbor (MacDonald, defendant, Buccina and Hilborn in Hilborn’s testimony). One of the men then returned the victim’s clothing and rings, and the car drove back to Syracuse, with everyone in the same seats as before. During the drive back, the victim’s right-hand neighbor (defendant, according to Hilborn) took her driver’s license and appeared to enter identifying information into his cell phone. Also during the drive back, the occupants of the car had a conversation about whether they had passed the Central Square rest stop. Finally, the rapists dropped their victim off in Syracuse, near a hotel.

In addition to the testimony of Hilborn and the victim, the People produced other testimony and documentary evidence. We will describe later in this opinion the parts of it we think most relevant.

The jury acquitted defendant of personally raping the victim, but convicted him on three counts of rape as an accomplice and one count of conspiracy. The Appellate Division affirmed, with two Justices dissenting (64 AD3d 1201 [2009]). An Appellate Division Justice granted permission to appeal to this Court (13 NY3d 751 [2009]), and we now affirm.

II

CPL 60.22 (1) says: “A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.”

The “corroborative evidence” required by this statute need not be powerful in itself. “The corroborative evidence need not show the commission of the crime; it need not show that defendant was connected with the commission of the crime. It is enough if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth” (People v Dixon, 231 NY 111, 116 [1921] [citations omitted]). “[T]he role of the additional evidence is only to connect the defendant with the commission of the crime, not to prove that he committed it. The accomplice testimony, if credited by the jury, may serve the latter purpose” (People v Hudson, 51 NY2d 233, 238 [1980]). Indeed, we have said that “much less evidence and of a distinctly inferior quality is sufficient to meet the slim corroborative linkage to otherwise independently probative evidence from accomplices” (People v Breland, 83 NY2d 286, 294 [1994]). Still, if the corroboration requirement is not met, a conviction cannot stand.

Here, as our summary above makes clear, the great bulk of Hilborn’s testimony was corroborated by the victim. But the victim did not, as defendant emphasizes, corroborate one critical detail, defendant’s identity—and therefore, defendant argues, her testimony was not evidence “tending to connect the defendant with the commission of [the] offense.” Evidence showing that, in general, the accomplice told the truth is not enough, in defendant’s view; he argues that there must be evidence independently pointing to him as the offender.

Defendant’s argument finds support in People v Hudson, where we said: “To meet the statutory mandate the corroborative evidence must be truly independent; reliance may not to any extent be placed on testimony of the accomplice for to do so would be to rely on a bootstrap” (51 NY2d at 238). Hudson would require that we consider only evidence that is “independent” in the sense that it could be viewed as connecting defendant to the crime even if the accomplice testimony did not exist.

As we will explain, the rule stated in Hudson is not supported by our other cases, and we do not follow it here. Nevertheless, the distinction Hudson makes is a useful one: Evidence that is independent of the accomplice’s testimony is generally entitled to more weight than evidence that is not. Thus we will perform the exercise that Hudson requires and consider what evidence would, if the accomplice’s testimony did not exist, tend to connect defendant with this offense. We will then consider the importance of other evidence, not independent in the Hudson sense.

Disregarding Hilborn’s testimony, the evidence in the record that might, arguably, tend to connect defendant with the crime may be summarized as follows:

- Defendant was a friend of one of the known rapists, MacDonald. MacDonald’s father-in-law testified that defendant had, four or five times, visited MacDonald at his home.

- Shortly before and shortly after the rape, defendant was in frequent contact with another of the rapists, Buccina. Buccina’s cell phone records showed that he called defendant or defendant called him a total of 31 times on the day before the rape, the day of the rape and the day after.

- Of those 31 calls, none occurred during the time when the victim’s testimony placed the four rapists together. Dozens of calls appear on Buccina’s cell phone records in the hours immediately preceding and following the rape, but none of those calls was from or to defendant.

- There is some evidence, though weak, of a physical resemblance between defendant and one of the rapists. Defendant had dirty blond hair, and none of the other three alleged offenders had that feature. A statement given by the victim shortly after the rape, and brought out before the jury, said that one of the rapists had dirty blond hair. In a later statement, the victim retracted her description, saying she had given it because she felt pressured by the police to come up with identifying details. On the other hand, the victim made a cryptic remark during her testimony which may suggest that the appearance of defendant and his codefendants, MacDonald and Buccina, was like that of her attackers: “I’m sitting in a room with three people that I can tell you they sat in the car.”

- Defendant had a strong emotional reaction when first contacted by the police about this case. An officer went to defendant’s home and said he wanted to talk about a rape investigation. According to the officer, defendant “became extremely pale, sweaty, shaky . . . had to lean up against a railing.”

In sum, independent evidence that may point toward defendant as one of the victim’s rapists does exist—but it must be said that the evidence is unimposing. It obviously falls far short of what would be necessary to prove defendant’s guilt. Whether it meets the much less demanding standard applied to corroborative evidence under CPL 60.22 (1) is a close question. We find it unnecessary to answer the question, because we conclude that other corroborative evidence, though not independent in the Hudson sense, should not be disregarded.

The text of CPL 60.22 (1), requiring “corroborative evidence tending to connect the defendant with the commission of such offense,” need not be read, as it was in Hudson, to require that all corroboration that depends to any degree on the accomplice’s testimony be ignored. The words “without reference to the accomplice’s testimony” are not in the statute. There can be corroborative evidence that, read with the accomplice’s testimony, makes it more likely that the defendant committed the offense, and thus tends to connect him to it.

A number of our decisions, both before and after Hudson, are inconsistent with the Hudson rule. As early as 1921, we said, in language we have repeatedly echoed since then: “Matters in themselves of seeming indifference or light trifles of the time and place of persons meeting may so harmonize with the accomplice’s narrative as to have a tendency to furnish the necessary connection between defendant and the crime” (Dixon, 231 NY at 116-117 [emphasis added]; see also, e.g., People v Daniels, 37 NY2d 624, 629 [1975]; Breland, 83 NY2d at 294; People v Besser, 96 NY2d 136, 143 [2001]). To consider whether accomplice testimony and other evidence “harmonize” is not to disregard the accomplice’s testimony; it is closer to the opposite. And we have held that some evidence may be considered corroborative even though it simply supports the accomplice testimony, and does not independently incriminate the defendant. Thus, in Breland, we relied on forensic evidence as to the location of a body and the gunshot wounds found in it that “corresponded with the details” supplied by an accomplice (83 NY2d at 293; see also People v Bretti, 68 NY2d 929 [1986]).

In short, many of our cases are inconsistent in their language, and some in their holdings, with the Hudson rule that CPL 60.22 (1) does not permit consideration of corroborative evidence that depends “to any extent” on accomplice testimony. We now make clear that this aspect of Hudson is overruled. Courts may consider harmonizing evidence as well as independent evidence, while giving due weight to the difference between the two. Some evidence that is not independent will obviously be worthless: If an accomplice testifies that the defendant committed a crime next to a tree in Central Park, the prosecution cannot “corroborate” this testimony by proving the existence of the tree. But in other cases, as in this one, harmonizing evidence may provide a substantial basis for crediting accomplice testimony.

Indeed, when we examine evidence that, though not independent of Hilborn’s testimony, does harmonize with it, we find the corroboration to be ample. The victim’s detailed account, and the DNA identifications of the three other rapists, give strong reason to believe that Hilborn’s description of events was very largely true. It is possible, of course, that Hilborn told the truth about every other detail, and lied about defendant’s involvement; but, on this record, it was for the jury to decide what weight to give that possibility. The cell phone records, too, harmonize with Hilborn’s testimony in a not insignificant way: Hilborn testified that he was with defendant, Buccina and MacDonald for an extended period of time before they met the victim—and Buccina’s cell phone records show that Buccina and defendant, who otherwise called each other often, placed no calls to each other for hours before the victim entered the car. If Hilborn was lying when he said that defendant was one of the men in the car, he was lucky that the cell phone records matched his testimony.

We conclude that the People produced corroborative evidence sufficient to connect defendant to the commission of the offense. Defendant’s argument that he was improperly denied access to Hilborn’s medical records is unpreserved, and his remaining arguments lack merit.

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

Jones, J. (dissenting).

Defendant raises the question whether his conviction was obtained in violation of CPL 60.22 (1). Because the evidence presented to corroborate the accomplice’s testimony did not meet the strictures of CPL 60.22 (1), I respectfully dissent.

The rule that requires the corroboration of an accomplice’s testimony is a safeguard that recognizes the questionable reliability of the testimony of an accomplice. It requires independent support of the testimony of a person who admits that he participated in a crime along with his confederates, yet points the finger at another for his own personal benefit. Accordingly, CPL 60.22 (1) requires “corroborative evidence tending to connect the defendant with the commission of such offense.” I agree with the two dissenting Justices of the Appellate Division (64 AD3d 1201, 1204 [2009]) that the corroborating evidence offered by the People in this case fails to identify defendant as a perpetrator.

The majority cites a laundry list of purportedly corroborative evidence. In my view, the evidence offered up, which fails to link defendant to the crime, does not satisfy CPL 60.22 (1) or the relevant case law.

First, the People argue that because the accomplice was “correct” in three out of four of his identifications (of himself and two codefendants), which were confirmed by DNA evidence, he was “correct” when he identified defendant as a participant in the crime, even though no DNA evidence linking him to the crime was recovered from defendant. In short, the People seek to explain the lack of corroborating DNA evidence from defendant by relying on the accomplice who states he supplied defendant with a condom, and initially lied about certain details of his involvement. Thus, in an interesting twist of logic, the People used the lack of corroborating DNA evidence from defendant, which would normally exculpate a defendant in a sex crime, to inculpate defendant here.

Further, the People argue there was a close friendship between defendant and codefendant Buccina, and evidence of telephone calls between them before and after the crime. Without any proof of the substance of these calls, no reasonable conclusion can be drawn concerning their corroborative value. These calls do not tend to identify defendant as a perpetrator of the offense. Further, an association between a defendant and the codefendants is not necessarily sufficient to establish that defendant was involved in criminal activity and cannot serve as corroborating evidence (see People v Marmulstein, 109 AD2d 948, 949 [3d Dept 1985]).

In addition, the People point to defendant’s nervousness when he was arrested and when he was taken for DNA testing as corroborating evidence. This Court has held that consciousness of guilt evidence (e.g., an individual’s nervousness when confronted by the police) is considered very weak evidence and does not necessarily meet the corroboration requirement of CPL 60.22 (1) (see People v Moses, 63 NY2d 299, 309 [1984]; People v Reddy, 261 NY 479, 487-488 [1933]).

Finally, the majority considers how the victim’s testimony indicating the number of perpetrators and the method of attack “harmonizes” with the accomplice’s details. Although the victim’s testimony bolsters the accomplice’s story, none of her details connect defendant with the crime. She was unable to identify any of the perpetrators after spending hours in the car with them. In any event, the fact that the victim’s testimony harmonizes with the accomplice’s does not connect the defendant with the crime, and is not corroborating evidence as contemplated by CPL 60.22 (1).

Contrary to the majority’s position, I believe that the principles set forth in People v Hudson (51 NY2d 233 [1980]) and its progeny are controlling here. It is well settled that “[t]he corroboration must be independent of, and may not draw its weight and probative value from, the accomplice’s testimony” (People v Steinberg, 79 NY2d 673, 683 [1992], citing People v Moses, 63 NY2d at 306; People v Hudson, 51 NY2d at 238).

The main cases the majority relies on, People v Besser (96 NY2d 136 [2001]) and People v Breland (83 NY2d 286 [1994]), are inapposite. In Besser, the indictment charged 10 defendants with one count of enterprise corruption based on 62 pattern criminal acts. Unlike here, in Besser, there was ample proof beyond the accomplices’ testimony, including testimony from at least two nonaccomplice witnesses and documentary evidence, which sufficiently corroborated the accomplices’ testimony.

In Breland, the defendant was charged with multiple murders and identified by many accomplices as well as independent witnesses. The majority cites an often quoted rule from Breland, i.e., “much less evidence and of a distinctly inferior quality is sufficient to meet the slim corroborative linkage to otherwise independently probative evidence from accomplices” (Breland, 83 NY2d at 294). However, this quote is incomplete as stated. The Court in Breland goes on to add the following: “In this case, the corroborative strands support overwhelming proof from the accomplices as to each element of all the counts beyond a reasonable doubt” (id. at 294 [citation omitted]).

There is no question that this was a particularly heinous crime. However, in such a case it is imperative to require the People to put forth the proper corroborating evidence. In People v Cona (49 NY2d 26, 37 [1979]), the Court stated, “[t]his is not a crippling requirement and serves to assure the reliability of evidence furnished by a witness who must be perceived as possibly laboring under considerable inducements to favor the prosecution.” In the instant case, the accomplice not only wanted to curry favor with the prosecution for obvious reasons but may have been easily influenced by the police as well. This accomplice was in a psychiatric unit, schizophrenic, bipolar and hearing voices at the time of trial.

People v Hudson has been settled law for 30 years and has been cited with approval in more than 100 cases. It sets forth the rationale for CPL 60.22 (1) as follows:

“[T]he purpose of the statute is to protect the defendant against the risk of a motivated fabrication, to insist on proof other than that alone which originates from a possibly unreliable or self-interested accomplice (People v Daniels, 37 NY2d 624). It is for this reason that the so-called corroborative evidence must stand on its own. To permit the testimony of the accomplice himself to import meaning or significance into the independent proof would furnish no assurance that the independent proof was not itself subject to the very untrustworthiness against which the statute seeks to protect” CHudson, 51 NY2d at 238-239).

I disagree with the majority’s decision to overrule any portion of Hudson. Generally, cases are overruled when they no longer serve the underlying “ ‘ “nature and object of the law itself’ ’, reason and the power to advance justice” (People v Bing, 76 NY2d 331, 338 [1990], quoting von Moschzisker, Stare Decisis in Courts of Last Resort, 37 Harv L Rev 409, 414). No such purpose exists here. No party has argued that Hudson, or any aspect of it, should be overruled. Furthermore, neither Besser nor Breland, which as stated were relied upon by the majority, have anything to do with the major thrust of Hudson.

In conclusion, the case against defendant was not supported by independent corroborating evidence tending to connect him to the crime as required by CPL 60.22 (1). Accordingly, he was denied a fair trial. It is troubling to consider that a person could be convicted of such a crime with absolutely no scientific or physical evidence to connect him to the crime, no identification by the victim, and the weakest of purported corroborating evidence.

Accordingly, I dissent and would reverse the order of the Appellate Division.

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

Order affirmed.

      . The accomplice, Hilborn, received a sentence of seven years for his testimony, while the codefendants were sentenced to 25 years.

      . The accomplice first stated that he used a condom. After the DNA evidence was discovered, he changed his story and said that he used a condom during part of the assault and then took it off.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    [932 NE2d 879, 906 NYS2d 523]
    The People of the State of New York, Respondent, v Nayshawn Perkins, Appellant.
    Argued June 2, 2010;
    decided June 29, 2010

      POINTS OF COUNSEL

      Joshua M. Levine, New York City, and Lynn W.L. Fahey for appellant.
    Permitting the People to elicit the complainant’s identification of appellant’s picture in a photographic array, based on appellant’s original refusal to participate in a lineup, violated due process and the rule prohibiting photographic identification evidence at trial. (People v Huertas, 75 NY2d 487; People v Caserta, 19 NY2d 18; People v De Martini, 213 NY 203; People v Jung Hing, 212 NY 393; People v Torres, 184 AD2d 605; People v Brewster, 100 AD2d 134, 63 NY2d 419; People v Cioffi, 1 NY2d 70; People v Spinello, 303 NY 193; People v Pleasant, 54 NY2d 972; People v Lindsay, 42 NY2d 9.)

      Charles J. Hynes, District Attorney, Brooklyn (Victor Barall and Leonard Joblove of counsel), for respondent.
    Defendant’s claim that the trial court erred in admitting evidence that he had been identified in a photographic array is unpreserved for appellate review. Furthermore, the claim is meritless. In any event, any error was harmless. (People v Reed, 84 NY2d 945; People v Geraci, 85 NY2d 359; People v Sanchez, 65 NY2d 436; Diaz v United States, 223 US 442; People v Crimmins, 36 NY2d 230; People v Robinson, 88 NY2d 1001; People v Luperon, 85 NY2d 71; People v Hughes, 137 NY 29; People v Hicks, 6 NY3d 737; People v Flores, 84 NY2d 957.)
   OPINION OF THE COURT

Read, J.

On October 31, 2002, four men carried out an armed robbery at a clothing store in Brooklyn, during which one of the robbers shot a store employee in the head and chest. The victim survived. Acting on information that defendant Nayshawn Perkins might have been involved in the robbery, the police created a photographic array of six pictures, including his, and showed the array to the victim four days after the crime; the victim immediately recognized defendant as “the guy that shot me.”

On February 3, 2003, about three months after the crime, defendant was arrested. The victim was summoned to the police station the next day to view a lineup. When the detective tried to organize it, however, defendant balked: he insisted that he was not going to participate; he kicked and spat and cursed at the detective, and refused to sit still and face forward, holding a lineup number. As a result of defendant’s obstreperousness, it was impossible to carry out the lineup, but the detective managed to take defendant’s photograph (a Polaroid head shot) by persuading him that his picture was required for a “prisoner movement slip.” The detective also took head shots of the five men who were to have served as fillers in the lineup, and laid out the six photographs in a row on a table for the victim to look at. The victim pointed out defendant’s photograph, identifying him as his assailant. On July 21, 2003, SVa months after the aborted lineup and almost nine months after the crime, the victim selected defendant again, this time in a court-ordered, double-blind lineup.

Following a Wade hearing, Supreme Court held that the pretrial identification procedures undertaken by the police were not unduly suggestive, and therefore denied defendant’s motion to suppress the victim’s lineup identification of defendant in July of 2003, and to preclude his prospective in-court identification testimony. While the prosecutor also maintained that she should be permitted to introduce at trial evidence of the victim’s photographic identification of defendant in February of 2003 as well as the precipitating circumstances, the hearing court declined to rule on these issues in deference to the trial judge.

Before jury selection at defendant’s trial in May of 2005, the prosecutor renewed her request to present to the jury the victim’s photographic identification of defendant on February 4, 2003, as well as evidence as to why the police were unable to conduct a lineup that day. The prosecutor argued that because defendant obstructed the corporeal lineup, he should not be heard to complain about the admission of the victim’s identification made after viewing the photographs taken of him and the fillers. The prosecutor further contended that defendant’s behavior thwarting the lineup was admissible as evidence of consciousness of guilt.

The trial judge ruled that the victim’s photographic identification of defendant in February of 2003 was admissible, remarking that “[c]ommon sense dictates the defendant may not sabotage efforts to see if somebody can identify him in a lineup by refusing to participate, and then the pictures can’t come in because it’s not a corporeal lineup. Common sense would dictate that.” When defense counsel objected on the ground that the People were not prejudiced by defendant’s conduct because of the victim’s eventual lineup identification of him, the judge disagreed. She explained that

“the jury may very well feel a person [nine] months later is not as reliable as somebody closer to the incident. So—both of them would be admissible; and, of course, the evidence that he resisted participation in a lineup, since that is clearly a possible consciousness of guilt evidence.”

The next day, defense counsel renewed his opposition to admission of the photographic identification. He reiterated that the People were not prejudiced, and also protested that counsel was not present at the station house in February of 2003. He acknowledged, however, that if he cross-examined anyone about the lengthy gap in time between the crime and the lineup in July of 2003, this would open the door to the identification testimony the People sought to introduce. The trial judge again commented, though, that the jury “might wonder how somebody could possibly recognize someone all that time later,” even if not prompted by defense counsel’s questioning. Accordingly, the judge adhered to her earlier ruling, adding that

“[t]he fact that [defendant] didn’t have counsel present . . . that has nothing to do with what the issue is. The issue is there is testimony that [defendant] refused to cooperate in a lineup, and for that reason they used another procedure closer to the event. And I think that would be an appropriate way of doing it. Then the second lineup was conducted sometime later, when apparently new counsel was able to persuade [defendant] to cooperate ....
“I think both of those should be properly before the jury, because [the prosecutor] is maintaining it was consciousness of guilt to cause him not to cooperate. I think that is a fair inference that could be drawn if the jury believes it happened.”

The jury subsequently convicted defendant of second-degree attempted murder (Penal Law §§ 110.00, 125.25) and first-degree robbery (Penal Law § 160.15). On June 14, 2005, the trial judge sentenced defendant as a second felony offender to concurrent terms of 25 and 10 years in prison for attempted murder and robbery respectively. Defendant took an appeal, arguing that the trial judge should not have permitted the People to introduce the evidence of the victim’s photographic identification of him in February 2003.

On April 14, 2009, a unanimous Appellate Division affirmed the judgment of conviction and sentence. After noting that defendant had “refused to participate” in the lineup that the police sought to conduct on February 4, 2003, the court observed that

“[i]n general, evidence regarding pretrial photographic identifications is not admissible at trial. This general prohibition is based in large part on the inference a jury may draw that possession by the police of the defendant’s photograph was the result of prior arrests. Here, however, it was the defendant himself, who, by his refusal to participate in the lineup, made resort to the photographic identification necessary. A person lawfully in custody has no right to refuse to participate in a lineup. It would thus be inappropriate to allow the defendant’s refusal to participate in a lineup to give rise to an inference by the jury that the identification testimony was suspect because the defendant was not identified in a lineup until nine months after the crime. Significantly, the jury was made aware that the defendant’s photograph was taken on the day of the photographic ‘lineup’ and was not in the possession of the police by reason of a previous arrest. Under the circumstances here, therefore, it was not improper to admit evidence of the photographic ‘lineup’ ” (61 AD3d 780, 781-782 [2d Dept 2009] [citations omitted]).

A Judge of this Court granted permission to appeal (13 NY3d 748 [2009]), and we now affirm.

At common law, a witness was barred from testifying that he had identified the defendant prior to trial, whether at a lineup or from photographs (People v Huertas, 75 NY2d 487, 493-494 [1990]). We have held, however, that section 393-b of the Code of Criminal Procedure carved out an exception to the common-law rule, but “only to the extent of permitting a witness to testify to a previous identification by himself of the defendant in the flesh” (People v Caserta, 19 NY2d 18, 21 [1966] [emphasis added]). We have cited two “well understood” reasons to justify excluding pretrial photographic identifications: it is “readily possible to distort pictures as affecting identity”; and a jury might infer that the police possessed a defendant’s photograph because of previous run-ins with the law (id. at 21; see also Kamins, Criminal Law and Procedure, Photo I.D. Evidence: Is it Time for a Change?, NYLJ, Apr. 5, 2010, at 3, col 1 [exploring history of and controversy surrounding New York’s exclusion— unique among the 50 states—of photographic identification as direct evidence in criminal trials]; see also People v Woolcock, 7 Misc 3d 203 [2005]).

Criminal Procedure Law § 60.30, like section 393-b from which it derives, has also been interpreted to apply only to the admissibility of testimony of a prior corporeal identification. But there is no indication that the Legislature intended to rule out photographic identification evidence in the event a defendant thwarts a lineup. As a result of his misconduct on February 4, 2003, defendant forfeited the right to rely on the evidentiary rules ordinarily barring the admission of photographic identification evidence, thus opening the way for the People to introduce the victim’s identification of him from pictures taken the same day as and in lieu of the aborted lineup (see People v Geraci, 85 NY2d 359, 366 [1995] [citing “the maxim that the law will not allow a person to take advantage of his own wrong,” court concluded that a witness’ grand jury testimony was properly admitted as direct evidence where the witness’ unavailability at trial was procured by defendant through violence and threats, thus creating a “forfeiture dictated by sound public policy” (internal quotation marks omitted)]). Moreover, the testimony of the detective in charge of the lineup on February 4, 2003 dispelled any notion the jurors might otherwise have harbored that the police already possessed the photograph of defendant shown to the victim that day.

Finally, the trial judge did not abuse her discretion when she rejected defendant’s claim that the People would suffer no prejudice because the victim eventually identified him in a lineup in July of 2003. When a defendant’s misconduct obstructs a corporeal identification, the determination of whether the People have been prejudiced such that evidence of a photographic identification is admissible lies within the trial court’s discretion. The judge here reasonably concluded that the jurors might be more skeptical about the reliability of an identification made nearly nine rather than three months after the crime.

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

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

Order affirmed.

       By the time the case went to trial, there was additional evidence linking defendant to the robbery: 13 of the latent fingerprints lifted from plastic garbage bags abandoned by the robbers in their haste to flee from the scene of the crime were found to match defendant’s fingerprints.


author: Jones, J.

text:
    [933 NE2d 183, 906 NYS2d 785]
    The People of the State of New York, Respondent, v Alex Rivera, Appellant.
    Argued March 24, 2010;
    decided May 6, 2010

      POINTS OF COUNSEL

      Lisa Napoli, New York City, and Lynn W.L. Fahey for appellant.
    The trial court violated Criminal Procedure Law § 310.70 and denied appellant due process by ordering the jury to render a partial verdict, learning that it acquitted appellant of four counts and convicted him of one, and then rejecting that partial verdict, instructing the jury to continue deliberating on all the charges, and sending the clear message that the partial verdict was incorrect. (Duncan v Louisiana, 391 US 145; United States

      v Thomas, 116 F3d 606; United States v Schwarz, 283 F3d 76; United States v lanniello, 866 F2d 540; People v Rodriguez, 71 NY2d 214; People v Yut Wai Tom, 53 NY2d 44; People v Bouton, 50 NY2d 130; People v Salemmo, 38 NY2d 357; People v Tucker, 55 NY2d 1; People v Trappier, 87 NY2d 55.)

      Charles J. Hynes, District Attorney, Brooklyn (Diane R. Eisner and Leonard Joblove of counsel), for respondent.
    The trial court acted within its discretion, pursuant to CPL 310.70 (1) (b) (ii), when it declined to accept a partial verdict and ordered the jury to continue to deliberate on all counts. (Matter of Theroux v Reilly, 1 NY3d 232; People v Jackson, 87 NY2d 782; Matter of Oliver v Justices of N.Y. Supreme Ct. of N.Y. County, 36 NY2d 53; People v Harris, 50 AD3d 1387; People v Aleman, 12 NY3d 806; People v Price, 16 AD3d 323; People v Gause, 38 AD3d 999; People v Wincelowicz, 258 AD2d 602; People v Phong T. Le, 277 AD2d 1036; People v Berg, 59 NY2d 294.)
   OPINION OF THE COURT

Jones, J.

This appeal requires us to determine whether the trial court violated Criminal Procedure Law § 310.70 when it instructed the jury to render a partial verdict, in which the jury acquitted defendant of four counts and convicted him of one, refused to accept said verdict after it was announced in open court, and then ordered the jury to continue deliberations on all the counts submitted to it. We conclude that the trial court violated CPL 310.70.

According to the People, at approximately 1:00 a.m. on July 28, 2001, defendant and his brother broke into the third-floor apartment shared by three Pakistani immigrants in the Bay Ridge section of Brooklyn. Over the next two to three hours, defendant and his brother terrorized the occupants, bound and gagged them with duct tape, threatened to shoot them and demanded money and jewelry. After taking money and property from the apartment, and after demanding the keys to the nearby delicatessen where one of the victims worked, defendant and his brother left the apartment. The victims then freed themselves and called the police, telling them to go to the delicatessen. A little while later, the police found defendant and his brother in a car near the delicatessen and arrested them. Thereafter, defendant’s jury trial commenced.

On April 7, 2003, after the presentation of evidence at defendant’s jury trial, and after the jury instructions were given, the trial court submitted the following 11 counts to the jury: first-degree robbery (armed with a deadly weapon) (three counts); second-degree criminal possession of a weapon; third-degree criminal possession of a weapon; first-degree burglary (apartment); third-degree burglary (delicatessen); petit larceny; and second-degree unlawful imprisonment (three counts). The trial court informed counsel on April 10, 2003 that it had received a note from the jury informing the court that it had reached a verdict on some counts but was at a standstill as to others. The trial court determined it would bring the jury in, “take” the partial verdict if the jury had in fact reached one and “then . . . see where we go from there.” On the record (in open court), the foreperson of the jury announced the jury’s partial verdict, acquitting defendant of the three unlawful imprisonment counts and second-degree weapons possession, but convicting him of petit larceny. Over defendant’s objection, the trial court refused to accept the partial verdict and ordered the jury to resume deliberations on the entire case (all 11 counts).

On the following day—April 11, 2003—the jury convicted defendant of 10 of the 11 counts submitted to the jury, acquitting him only of second-degree weapons possession. Defendant was sentenced, as a persistent violent felony offender, to three consecutive prison terms of 25 years to life for the robbery counts, to run concurrently with concurrent prison terms of 25 years to life for the third-degree weapons possession and burglary counts, and one year for the petit larceny and unlawful imprisonment counts. The Appellate Division modified the judgment, on the law and as a matter of discretion in the interest of justice, with respect to the sentences imposed (60 AD3d 788 [2d Dept 2009]). As relevant here, the Appellate Division held that “[t]he trial court did not improvidently exercise its discretion in refusing to accept a partial verdict” (id. at 789). A Judge of this Court granted defendant leave to appeal (12 NY3d 920 [2009]), and we now modify the order of the Appellate Division.

Under the plain language of CPL 310.70, a trial court is required to follow one of two courses when a deliberating jury declares that it has reached a verdict as to some, but not all, of the counts submitted to it, and there is a reasonable possibility of ultimate agreement on any of the unresolved counts. The court may either (1) order the jury to render a partial verdict and continue deliberating “upon the remainder” of the counts submitted to the jury (CPL 310.70 [1] [b] [i]), or (2) “[r]efuse to accept a partial verdict” and order the jury to continue its deliberations “upon the entire case” (CPL 310.70 [1] [b] [ii]).

Here, after the jury informed the court that it had reached a partial verdict as to some of the 11 counts submitted to it, the trial court ordered the jury to render its partial verdict, which the foreperson announced in open court. The trial court then refused to accept the partial verdict as requested by the defense, and ordered the jury to resume deliberations on the entire case. In so doing, the trial court took the pulse of the jury deliberations and then ordered the jury reconsider its decision. This was error.

By refusing to accept the partial verdict after it was announced, the trial court signaled to the jury that the partial verdict was incorrect. What’s more, given the full verdict rendered the day after the partial verdict was announced, in which the jury convicted defendant of counts it had acquitted defendant of the day before, one could reasonably conclude that the trial court’s actions had a coercive effect on the jury (and its deliberations after the partial verdict was announced). In short, the trial court not only violated the partial verdict procedure under CPL 310.70, it impinged on defendant’s right to a trial by jury.

The right to a trial by jury in criminal cases is “fundamental to the American scheme of justice” and essential to a fair trial (Duncan v Louisiana, 391 US 145, 148-149, 154 [1968]). At the heart of this right is the need to ensure that jury deliberations are conducted in secret, and not influenced or intruded upon by outside factors (see People v Rodriguez, 71 NY2d 214, 218 n 1 [1988]; People v Bouton, 50 NY2d 130, 138 [1980]; United States v Thomas, 116 F3d 606, 618 [2d Cir 1997]).

This case makes clear why the secrecy and independence of jury deliberations must be vigilantly protected. If the trial court finds out where the jury stands on a particular count and then orders the jury to deliberate further on that count, the trial court effectively, even though inadvertently, inserts itself into the jury’s deliberations. The mere possibility of a trial court exerting such influence over the jury is improper and at odds with the strong public policy that jury deliberations should be confidential and free from outside interference, and has the potential to render a defendant’s right to a trial by jury meaningless.

We have considered defendant’s remaining arguments and they are either academic or without merit.

Accordingly, the order of the Appellate Division should be modified by dismissing the three counts of unlawful imprisonment in the second degree and remitting to Supreme Court for a new trial on the counts of the indictment charging robbery in the first degree, criminal possession of a weapon in the third degree, burglary in the first degree and burglary in the third degree, and for resentencing on defendant’s conviction of petit larceny, and, as so modified, affirmed.

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

Order modified, etc.

      . Prior to trial, defendant’s brother pleaded guilty to one count of first-degree robbery, and was sentenced to a determinate prison term of seven years.

      . A trial court may reject an announced verdict only under two circumstances: (1) where it is legally defective, e.g., where the jury failed to follow the court’s instructions (see People v Salemmo, 38 NY2d 357, 360-361 [1976]), or (2) where it is repugnant (see People v Tucker, 55 NY2d 1, 7-8 [1981]; People v Trappier, 87 NY2d 55, 58 [1995] [“A verdict is inconsistent or repugnant . . . where the defendant is convicted of an offense containing an essential element that the jury has found the defendant did not commit”]). Here, the announced partial verdict was neither legally defective nor repugnant.


author: Graffeo, J.

text:
    [933 NE2d 705, 907 NYS2d 106]
    The People of the State of New York, Appellant, v Edgar Correa, Respondent. The People of the State of New York, Respondent, v Joao Fernandez, Appellant. The People of the State of New York, Appellant, v Allen Mack, Respondent.
    Argued May 5, 2010;
    decided June 3, 2010

      POINTS OF COUNSEL

      Robert T. Johnson, District Attorney, Bronx (Joseph N. Ferdenzi and Frances Y. Wang of counsel), for appellants in the first and third above-entitled actions.
    The Appellate Division erroneously decided that the Chief Judge and Chief Administrative Judge were without authority to order the transfer of defendant’s case from Criminal Court to Supreme Court. (People v Cepeda, 71 AD3d 422; People v Jones, 18 Misc 3d 63, 10 NY3d 767; People v Darling, 50 AD2d 1038; Kagen v Kagen, 21 NY2d 532; Thrasher v United States Liab. Ins. Co., 19 NY2d 159; People v Turza, 193 Misc 2d 432; Matter of Malloy, 278 NY 429; Motor Veh. Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175; People v Luciano, 10 NY3d 499; People v Wrotten, 14 NY3d 33.)

      Legal Aid Society, Criminal Appeals Bureau, New York City (Martin M. Lucente and Steven Banks of counsel), for appellant in the second above-entitled action.
    Appellant’s convictions must be reversed because: (1) the Supreme Court lacked jurisdiction to try and sentence him under a misdemeanor information, where CPL 210.05 provides that the Supreme Court may only acquire trial jurisdiction over criminal proceedings initiated by indictment or superior court information; and (2) the transfer of this case from Criminal Court to Supreme Court was not authorized by any other provisions of the New York Constitution or statutes. (People v Harper, 37 NY2d 96; People v Wiltshire, 23 AD3d 86; People v Correa, 70 AD3d 532; People v Jones, 18 Misc 3d 63; Thrasher v United States Liab. Ins. Co., 19 NY2d 159; Matter of Morgenthau v Roberts, 65 NY2d 749; Rodriguez v Myerson, 69 AD2d 162; Sohn v Calderon, 78 NY2d 755; Matter of Dalliessi v Marbach, 56 AD2d 858; Pulerwitz v Rand, 141 AD2d 623.)

      Legal Aid Society, Criminal Appeals Bureau, New York City (Harold V. Ferguson, Jr., and Steven Banks of counsel), for respondents in the first and third above-entitled actions.
    The Appellate Division, First Department correctly determined that the Chief Judge of the Court of Appeals and the Chief Administrative Judge lacked the authority to create the Bronx Criminal Division of the Supreme Court. (People v Harper, 37 NY2d 96; People v Wiltshire, 23 AD3d 86; People v Jones, 18 Misc 3d 63; Thrasher v United States Liab. Ins. Co., 19 NY2d 159; Matter of Morgenthau v Roberts, 65 NY2d 749; Rodriguez v Myerson, 69 AD2d 162; Sohn v Calderon, 78 NY2d 755; Matter of Dalliessi v Marbach, 56 AD2d 858; Pulerwitz v Rand, 141 AD2d 623; Jiggetts v Grinker, 75 NY2d 411.)

      Charles J. Hynes, District Attorney, Brooklyn (Jodi L. Mandel and Leonard Joblove of counsel), for respondent in the second above-entitled action.
    The transfer of defendant’s unindicted misdemeanor case from Criminal Court to the Supreme Court Integrated Domestic Violence Part comported with the State Constitution and state statutes. Moreover, the Supreme Court Integrated Domestic Violence Part properly exercised jurisdiction over defendant’s case. (People v Patterson, 39 NY2d 288, 432 US 197; Matter of Met Council v Crosson, 84 NY2d 328; Corkum v Bartlett, 46 NY2d 424; Matter of New York State Assn.

      of Criminal Defense Lawyers v Kaye, 96 NY2d 512; People v Urbaez, 10 NY3d 773; Levenson v Lippman, 4 NY3d 280; Matter of Dalliessi v Marbach, 56 AD2d 858; Pulerwitz v Rand, 141 AD2d 623; Matter of Fry v Village of Tarry town, 89 NY2d 714; Kagen v Kagen, 21 NY2d 532.)

      Michael Colodner, New York City, Marc Bloustein and Paul McDonnell for Chief Administrative Judge and another, amici curiae in the first above-entitled action.
    The Bronx Criminal Division, sitting as a Supreme Court, has jurisdiction to hear unindicted misdemeanors transferred to the Division from the New York City Criminal Court. (Matter of Morgenthau v Cooke, 56 NY2d 24; Matter of Marro v Bartlett, 46 NY2d 674; People v Fernandez, 72 AD3d 303; Matter of Met Council v Crosson, 84 NY2d 328; People v Robinson, 6 Misc 3d 645; People v Gonzalez, 6 Misc 3d 1034[A], 2005 NY Slip Op 50291[U]; Levenson v Lippman, 4 NY3d 280; People v Hickey, 40 NY2d 761; Matter of Molea v Marasco, 64 NY2d 718; Matter of Michelson v Clyne, 84 AD2d 883.)
   OPINION OF THE COURT

Graffeo, J.

Defendants in these three cases challenge the rules promulgated by the Chief Judge and Chief Administrative Judge that created either the Bronx Criminal Division or Integrated Domestic Violence Part in Supreme Court, which resulted in the transfer of their misdemeanor prosecutions from local criminal courts to Supreme Court for trial. Although they did not object to the transfer procedure in the trial court, they argued on appeal that Supreme Court lacked subject matter jurisdiction over their trials and that the rules violate the New York Constitution and the Criminal Procedure Law. Rejecting defendants’ arguments, we hold that the administrators of the Unified Court System were empowered under our State Constitution and the Judiciary Law to adopt these rules and that Supreme Court—a court of general, concurrent jurisdiction—had the power to adjudicate these misdemeanor cases.

Integrated Domestic Violence Parts

In January 2004, after consultation with the Administrative Board and with the consent of the Court of Appeals, the Chief Judge of the State of New York promulgated part 41 of the Rules of the Chief Judge providing for the establishment of Integrated Domestic Violence (IDV) Parts in Supreme Court. The rule directed that the specialized part

“be devoted to the hearing and determination, in a single forum, of cases that are simultaneously pending in the courts if one of them is a domestic violence case in a criminal court and the other is a case in Supreme or Family Court that involves a party or witness in the domestic violence case; or if one is a case in criminal court, Family Court or Supreme Court and the other is a case in any other of these courts having a common party or in which a disposition may affect the interests of a party in the first case” (22 NYCRR 41.1 [a] [1]).

The intent of the IDV directive was to allow matters involving a single family to be resolved in one court by the same jurist, thereby eliminating fragmented judicial adjudication and relieving the parties of the burden and costs of having multiple actions pending in different courts. In addition to streamlining the litigation process for litigants and providing better access to community services for families, the new IDV Parts also increased judicial efficiency by avoiding duplication of effort by multiple courts, reducing scheduling conflicts and avoiding inconsistent outcomes.

Soon after the Chief Judge issued part 41, the Chief Administrative Judge implemented the new rule by adopting part 141 of the Rules of the Chief Administrator of the Courts, which defined those “IDV-eligible cases” subject to transfer to Supreme Court. Under part 141, cases that meet the criteria are sent to an IDV Part where, within five days, the cases are screened to determine whether transfer will promote the administration of justice. If so, a formal transfer order is issued and the case is retained by the IDV Part for disposition. If not, the case is returned to the originating court. There are currently 44 Supreme Court IDV Parts in New York State.

People v Fernandez

In January 2007, defendant Joao Fernandez was charged by misdemeanor information filed in New York City Criminal Court, Kings County, with multiple counts of aggravated harassment in the second degree after he contacted his former paramour by telephone 62 times in one evening and repeatedly threatened her with physical harm. Fernandez and the complainant had been involved in multiple prior Family Court cases regarding disputes about their two children. After his arraignment in New York City Criminal Court, the case was transferred to the IDV Part in Kings County Supreme Court where a non-jury trial was conducted. Fernandez was convicted of three counts of attempted aggravated harassment in the second degree and sentenced to concurrent terms of one year’s probation. He was also directed to participate in a variety of domestic violence accountability and other programs.

Although Fernandez raised no objection in the trial court to the transfer of his case, in his appeal to the Appellate Division, Second Department, he argued that the IDV Part—an arm of Supreme Court—lacked the authority to exercise subject matter jurisdiction over his misdemeanor case because it was prosecuted by information rather than an indictment or superior court information issued after waiver of indictment. Defendant also contended that the Chief Judge and Chief Administrative Judge exceeded the scope of their authority when they issued the IDV directives. In addition, he sought reversal based on an asserted evidentiary error. The Second Department unanimously rejected defendant’s arguments and affirmed his conviction (People v Fernandez, 72 AD3d 303 [2010]). A Justice of that court granted defendant leave to appeal (14 NY3d 807 [2010]).

The Bronx Criminal Division

About nine months after the IDV directives were issued, in consultation with the Administrative Board and with the consent of the Court of Appeals, the Chief Judge promulgated part 42 of the Rules of the Chief Judge establishing a criminal division in the Supreme Court in Bronx County. The new part— denominated the Bronx Criminal Division (BCD)—was vested with the authority to adjudicate cases commenced in the New York City Criminal Court, Bronx County, when at least one felony or misdemeanor offense was charged. The intent was to permit cases originating in the Criminal Court to be reassigned to the BCD for trial in order to alleviate a trial backlog that had developed in the Criminal Court. The Chief Administrative Judge adopted part 142 directing, with specified limitations, that certain felony and misdemeanor cases pending in Criminal Court of the City of New York in Bronx County be transferred to the BCD part of Supreme Court following arraignment, if the cases were not resolved at arraignment. By order of the Administrative Judge of Bronx County, the BCD directives were implemented on November 5, 2004.

People v Correa-, People v Mack

In October 2005, defendant Edgar Correa was charged in a misdemeanor information filed in New York City Criminal Court, Bronx County, with various class A misdemeanors and harassment in the second degree, a violation, resulting from an altercation with his wife. After arraignment, his case was transferred to the BCD and a nonjury trial was conducted. Correa was acquitted of the misdemeanor offenses but convicted of the harassment charge and sentenced to 15 days in jail.

Defendant Allen Mack was charged in an information with the misdemeanor offenses of obstructing governmental administration and assault in the third degree, as well as one count of harassment in the second degree, a violation, as a result of disruptive behavior during a parole hearing. Following his arraignment in New York City Criminal Court, Bronx County, Mack’s case was transferred to the BCD for a nonjury trial in August 2006. He was convicted of attempted assault in the third degree and harassment for which he received 90-day and 15-day jail sentences, respectively.

Both Correa and Mack appealed and, in their initial briefs, neither defendant protested that his trial had been conducted in the BCD part of Supreme Court. However, in February 2009, the Appellate Division, First Department, sua sponte requested that the attorneys in each case brief two additional issues:

“(1) Whether the establishment of the Criminal Division of Supreme Court in Bronx County under Part 142 of the Rules of the Chief Administrator is consistent with the Constitution and statutes of the State of New York?
“(2) Whether the Supreme Court possessed jurisdiction over a criminal case absent the filing of an indictment or superior court information?”

In response to the inquiry, defense counsel filed supplemental briefs asserting that Unified Court System (UCS) administrators exceeded the authority granted them under the Constitution and relevant statutes when they issued the BCD directives and that Supreme Court lacked subject matter jurisdiction to try misdemeanor offenses prosecuted on an information. Relying on CPL 210.05, defendants contended that Supreme Court has the power to adjudicate misdemeanor offenses only when the grand jury has included them in an indictment or a defendant has waived indictment and agreed to be prosecuted by a

superior court information (SCI). The People countered that various provisions of the Constitution and the Judiciary Law expressly allowed UCS administrators to issue the rules relating to transfer of misdemeanor cases to the BCD part and, as an arm of Supreme Court, the BCD possessed the requisite jurisdiction to try defendants’ “unindicted” misdemeanor cases.

In February 2010, in a divided opinion, the First Department reversed the conviction in Correa and dismissed the accusatory instrument, crediting defendant’s jurisdictional arguments (People v Correa, 70 AD3d 532 [2010]). In his dissent, Justice Acosta disagreed with the majority, finding ample constitutional and statutory basis for the issuance of the BCD directives and concluding that, as a court of general, concurrent jurisdiction, Supreme Court is empowered to adjudicate misdemeanor cases, regardless of whether the charge is contained in an information, an indictment or an SCI. In a separate decision, the First Department reversed Mack’s conviction and dismissed the misdemeanor information, citing the decision in Correa (People v Mack, 70 AD3d 555 [2010]). In each case, Justice Acosta granted the People leave to appeal.

Preservation

Although none of the defendants in these cases timely objected either in New York City Criminal Court or Supreme Court to the transfer of their misdemeanor cases, we may consider their arguments in this Court because each defendant contends that Supreme Court lacked subject matter jurisdiction to try his case. If Supreme Court—acting through the IDV Part or the BCD—did not possess the authority to conduct these proceedings, this would be a fundamental, nonwaivable defect in the mode of proceedings that could be raised by defendants on their direct appeal despite their failure to comply with preservation requirements (see People v Casey, 95 NY2d 354, 365 [2000]; see e.g. People v Nicometi, 12 NY2d 428 [1963] [where defendant argued that a Court of Special Sessions lacked the subject matter jurisdiction to try the offense with which he was charged, claim could be raised on appeal notwithstanding defendant’s failure to object in the trial court]). Accordingly, we must address defendants’ jurisdictional arguments on the merits.

The Authority to Issue the IDV and BCD Directives

We begin by considering the claim that the UCS administrators exceeded the power granted them in the New York Constitution and relevant statutes when they issued the directives creating the BCD and the IDV Part. In Correa and Mack, the First Department majority concluded that the rules adopted by the Chief Judge and Chief Administrative Judge amounted to ultra vires acts because the transfer of cases to Supreme Court is a matter of “practice and procedure” that falls within the exclusive province of the Legislature. We disagree.

Article VI of the New York Constitution—the Judiciary Article—created a “unified court system for the state” (NY Const, art VI, § 1 [a]) and vested the Chief Judge with the authority to administer the system, with the assistance of the Administrative Board (composed of the Chief Judge and the Presiding Justices of each Appellate Division) (art VI, § 28). Together, they are empowered to appoint a chief administrator to “supervise the administration and operation of the unified court system” and exercise powers delegated by the Chief Judge (art VI, § 28 [a], [b]). The Chief Judge may “establish standards and administrative policies for general application throughout the state,” which shall be submitted to the Court of Appeals, together with the recommendations of the Administrative Board, and approved by the Court (art VI, § 28 [c]).

We have previously held that the constitutional requirement that the Chief Judge and Chief Administrative Judge consult with the Administrative Board and receive approval from the Court of Appeals before implementing broad-based administrative policies ensures critical “multistage, multiperson review” and is therefore an indispensable component of the constitutional scheme (see Matter of Morgenthau v Cooke, 56 NY2d 24, 32 [1982]). When administrative authority is exercised in conformity with the consultation and approval requirements, UCS administrators possess broad express and implied powers to take whatever actions are necessary for the proper discharge of their responsibilities (see Matter of New York State Assn. of Criminal Defense Lawyers v Kaye, 96 NY2d 512 [2001]).

The Judiciary Article also specifically addresses the reassignment of cases to and from Supreme Court. Article VI, § 19 (a) states:

“As may be provided by law, the supreme court may transfer to itself any action or proceeding originated or pending in another court within the judicial department other than the court of claims upon a finding that such a transfer will promote the administration of justice.”

The authority of UCS administrators to transfer cases to and from Supreme Court is also recognized in statute. Judiciary Law § 211 (1) (a) explicitly authorizes the Chief Judge, in consultation with the Administrative Board and with the consent of the Court of Appeals, to “establish standards and administrative policies for general application to the unified court system throughout the state, including but not limited to standards and administrative policies relating to . . . transfer of judges and causes among the courts.” Thus, the Legislature included the transfer of cases as one of the administrative actions that could be taken by the Chief Judge and Chief Administrative Judge. Based on Supreme Court’s transfer powers under article VI, § 19 (a) and the broad administrative authority vested pursuant to article VI, § 28 and Judiciary Law § 211, we conclude that UCS administrators were authorized to promulgate the IDV and BCD directives. Before the directives were issued, the Administrative Board was consulted and consent was obtained from the Court of Appeals. And although the First Department majority suggested that the BCD directives merged the Supreme Court and the New York City Criminal Court, eviscerating the latter, in reality the BCD and IDV directives accomplished only two things: they created new “parts” in Supreme Court and they provided that certain cases be transferred to those parts. Both actions were permissible under the relevant constitutional and statutory provisions.

No one has disputed the Chief Administrative Judge’s power to create new parts within existing courts—a prerogative that appears in Judiciary Law § 212 (1) (c). As for the exercise of transfer authority, there has long been a question concerning whether the drafters of article VI, § 19 (a) intended to require statutory authorization before Supreme Court may transfer to itself cases arising in other courts (see e.g. Matter of Dalliessi v Marbach, 56 AD2d 858 [2d Dept 1977] [concluding that section 19 (a) is not “self-executing” and that statutory authority is required]). But even assuming legislative action was necessary, the statutory predicate for the rules at issue appears in Judiciary Law § 211 (1) (a), which permits the Chief Judge to transfer cases between courts to further the efficient administration of justice. The provision contains no language preventing the transfer of misdemeanor cases to Supreme Court.

In determining that the Chief Judge and Chief Administrative Judge exceeded their constitutional and statutory powers when adopting the BCD directives, the First Department majority stated that they “caus[ed] a collapse of the constitutionally created Criminal Court of the City of New York in the Bronx” and “impinged on the Legislature’s reserved primary power to alter and regulate jurisdiction, practice and procedure under State Constitution, article VI, § 30” (Correa, 70 AD3d 532, 534 [2010]). Contending that the Legislature has reserved to itself the power to regulate practice and procedure, the First Department reasoned that the ability of UCS administrators to direct that certain cases be heard in Supreme Court invaded that legislative domain. Again, we disagree.

The Legislature certainly exercises significant control over the regulation of practice and procedure in the courts. But article VI, § 30 does not address or purport to curtail the transfer authority granted in article VI, § 19 (a) or the administrative power vested in UCS administrators in article VI, § 28. And in drafting Judiciary Law § 211, the Legislature made clear that it does not view the transfer of cases to be strictly a matter of practice and procedure—a conclusion that is especially appropriate given that UCS administrators may decide to reassign cases to alleviate court congestion (the impetus for the BCD directives). Section 211—entitled “[a]dministrative functions of the chief judge of the court of appeals”— includes an express reference to the transfer of cases between courts in the category of “standards and administrative policies” that the Chief Judge is directed to establish. The statute does not characterize transfer as a practice and procedure issue, much less indicate that policies relating to reassignment of cases fall within the sole province of the Legislature. As indicated in Corkum v Bartlett (46 NY2d 424 [1979]), the Legislature’s decision to classify certain matters as administrative in the statutory delineation of the powers of UCS administrators is compelling evidence that it intended to recognize their authority over such matters.

Given the historical context in which these provisions were adopted, it is not surprising that the drafters of the Judiciary Article expressly permitted the transfer of cases to and from Supreme Court and that, in Judiciary Law § 211, the Legislature vested UCS administrators with the authority to establish and implement transfer policies. The creation of the Unified Court System in 1962 was prompted in part by the uneven distribution of cases throughout the existing courts, resulting in some courts being “overburdened, congested and delayed” while others did not have enough work to engage the staff full-time (see Report of State of New York Temporary Commission on the Courts [1955]). A statewide system of court administration was deemed necessary in order to efficiently marshal judicial resources and redirect cases to avoid the imbalances in workload and excessive delays that had plagued the prior system (id.). The constitutional and statutory transfer provisions fulfill this requirement, thereby facilitating the efficient administration of justice.

Although the First Department was concerned that the BCD directives rendered the New York City Criminal Court, Bronx County, a “shell of its former self’ (70 AD3d at 538), it appears that the court continues to have a heavy caseload and performs important functions in the criminal court system. That court still conducts arraignments and other preliminary proceedings on all informations, including those that charge misdemeanors and felonies—a transfer occurs only if a case is not disposed of at arraignment. In 2008, 76,631 arraignments were conducted in that venue and 48.9% of those cases were resolved by plea during those proceedings. Thus, the directives did not affect roughly 50% of the court’s caseload. Of the cases that survived arraignment, only some met the transfer criteria and a significant number of those—any case involving a felony—would have been divested to Supreme Court for trial anyway, even absent the BCD directives, since local criminal courts lack trial jurisdiction over felony charges (see CPL 10.30).

Although the creation of the BCD certainly impacted the work of the New York City Criminal Court, we are unpersuaded that its role has been restricted to the point that it has ceased to effectively fulfill the role assigned under the New York Constitution (see NY Const, art VI, § 15). Nor, in any event, did UCS administrators exceed their authority and impermissibly tread in the legislative domain when they issued the BCD or IDV directives. Accordingly, we decline to set aside the rules on that basis.

Supreme Court Jurisdiction

Defendants further contend that, even if UCS administrators had the power under the constitutional and statutory scheme to reassign cases (as we have concluded), that authority was exceeded when the BCD and IDV directives were adopted because cases may only be transferred to a court that possesses subject matter jurisdiction. Primarily relying on CPL 210.05, defendants claim that Supreme Court’s power to try a misdemeanor is restricted to cases in which the charge is included in an indictment or SCI (issued upon waiver of indictment), meaning that the court lacks subject matter jurisdiction over misdemeanors charged in an information—so-called “unindicted” misdemeanors. Since none of the defendants in these cases was indicted or waived indictment and agreed to be prosecuted by SCI, they argue that their trials in Supreme Court were a nullity. This argument lacks merit.

There is no question that the Criminal Procedure Law generally contemplates that violations and misdemeanors will be tried in local criminal courts and that felonies, which may be initiated by the filing of an information or complaint but must ultimately be prosecuted by indictment or SCI, will be tried in the superior courts—County Court or Supreme Court. But the issue presented in this case is not whether misdemeanor cases are typically tried in local criminal courts or even whether, when adjudicated in Supreme Court, they are usually charged in an indictment—the answer to both of these questions is undoubtedly “yes.” This dispute concerns the extent to which Supreme Court can exercise subject matter jurisdiction over misdemeanor trials.

To determine the scope of Supreme Court’s jurisdiction, we first look to the New York Constitution, which provides: “The supreme court shall have general original jurisdiction in law and equity and the appellate jurisdiction herein provided” (NY Const, art VI, § 7 [a]). Under this provision, Supreme Court “is competent to entertain all causes of action[ ] unless its jurisdiction has been specifically proscribed” (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166 [1967] [statutory requirement that judgment be served on insured was a substantive element of claim and not a limitation on Supreme Court’s subject matter jurisdiction]). We have recognized that, when the drafters of article VI created the UCS in 1962 and continued Supreme Court as a court of general jurisdiction, if anything its jurisdiction was enlarged to encompass claims that it might not have heard under the previous constitutional scheme (see Kagen v Kagen, 21 NY2d 532 [1968] [Supreme Court shares concurrent jurisdiction with Family Court over child support disputes, although it could not have heard such cases prior to 1962]).

To be sure, the jurisdiction of Supreme Court is limited elsewhere in the New York Constitution. For example, in preserving the State’s historical sovereign immunity from suit, Supreme Court cannot exercise jurisdiction over claims for money damages brought against the State, which must be initiated and tried in the Court of Claims (see Pollicina v Misericordia Hosp. Med. Ctr., 82 NY2d 332, 338 n 3 [1993]; Kagen, 21 NY2d at 538; see generally NY Const, art VI, § 9). Similarly, under the Supremacy Clause of the United States Constitution, Supreme Court may not hear cases in which exclusive jurisdiction has been conferred on the federal courts (Pollicina, 82 NY2d at 338 n 3; see e.g. Financial Indus. Regulatory Auth., Inc. v Fiero, 10 NY3d 12 [2008] [state courts lacked jurisdiction to hear action for enforcement of disciplinary penalties arising under the Securities Exchange Act]). And Supreme Court is subject to the same substantive limitations imposed on other courts. Like every other court in New York State, Supreme Court may not convict a defendant of a felony absent compliance with the indictment and waiver of indictment provisions in article I, § 6 of the New York Constitution (see e.g. People v Wiltshire, 23 AD3d 86 [1st Dept 2005], lv denied 6 NY3d 840 [2006]).

But, subject to the limitations discussed above, the New York Constitution vests Supreme Court with the power to hear any case that any other court in the UCS could hear, which is why we refer to Supreme Court as possessing both general and concurrent jurisdiction over all causes of actions—hence the designation “Supreme” Court. And, in contrast to article I, § 6 which requires indictment of felony charges (or waiver of indictment and agreement to be prosecuted on SCI) before any court may try a defendant for a felony, there is no provision in the Constitution that imposes any similar limitation on the power of a court, including Supreme Court, to adjudicate misdemeanor charges.

Defendants nonetheless assert that the Legislature has imposed statutory restrictions on Supreme Court that prevent trials of misdemeanor charges from being entertained unless they are contained in an indictment or SCI after waiver of indictment. According to defendants, although local criminal courts such as the New York City Criminal Court may try unindicted misdemeanor cases, Supreme Court lacks subject matter jurisdiction over those matters and, in this respect, its ability to exercise concurrent jurisdiction with other UCS courts has been curtailed.

If this were in fact the case, a significant constitutional issue would be presented because we have made clear in other contexts that “[t]he Legislature cannot by statute deprive [Supreme Court] of one particle of its jurisdiction, derived from the Constitution (Art. VI), although it may grant concurrent jurisdiction to some other court” (Pollicina, 82 NY2d at 339, quoting Matter of Malloy, 278 NY 429, 432 [1938]). Addressing the precise issue raised in these appeals—whether Supreme Court may try an unindicted misdemeanor—there is authority for the proposition that it does and that any effort by the Legislature to “abridge, limit or qualify” the broad jurisdiction conferred under article VI, § 7 would be “unconstitutional and void” (People v Darling, 50 AD2d 1038, 1038 [3d Dept 1975]).

After review of the Criminal Procedure Law provisions on which defendants rely, we conclude that the Legislature has not adopted statutes that purport to oust Supreme Court of the jurisdiction to try unindicted misdemeanor cases and we therefore need not determine whether the Legislature could take such action, had that been its intent. The CPL divides New York courts into two categories: superior courts (which include Supreme Court and County Court) and local criminal courts (which include city courts, town courts, district courts and, as relevant here, the New York City Criminal Court). It also recognizes two types of jurisdiction: “preliminary jurisdiction” and “trial jurisdiction.” Preliminary jurisdiction encompasses conducting arraignments, assigning counsel, setting bail and, in the case of a felony complaint, conducting a preliminary hearing if that right is not waived by defendant (see Matter of Molea v Marasco, 64 NY2d 718, 722 [1984, dissenting op]). As the title suggests, trial jurisdiction includes the authority to resolve the case on the merits by conducting a trial or accepting a guilty plea, among other actions such as conducting a suppression hearing (see Matter of Michelson v Clyne, 84 AD2d 883 [3d Dept 1981]). In these appeals, we are concerned only with whether Supreme Court had trial jurisdiction because, under the BCD and IDV directives, misdemeanor cases are not transferred to Supreme Court until after the preliminary proceedings associated with arraignment have concluded.

CPL 10.20, entitled “Superior courts; jurisdiction,” states that superior courts—which include Supreme Court—“have trial jurisdiction of all offenses” and further specifies that they have exclusive trial jurisdiction of felonies and “[tjrial jurisdiction of misdemeanors concurrent with that of the local criminal courts” (CPL 10.20 [1] [a], [b]). A reciprocal provision relating to the jurisdiction of local criminal courts states that they have “[t]rial jurisdiction of misdemeanors concurrent with that of the superior courts but subject to divestiture thereof by the latter in any particular case” (CPL 10.30 [1] [b]). Neither statute conditions the power of a superior court to try misdemeanor cases on the existence of an indictment or SCI. To the contrary, both unqualifiedly state that superior courts possess subject matter jurisdiction to try all misdemeanor cases, a point that is evident from the broad language in CPL 10.30 (1) (b) recognizing that a superior court can exercise its divestiture authority “in any particular case.” In its express language, the CPL acknowledges that superior courts—such as Supreme Court— have subject matter jurisdiction to try misdemeanor cases.

Nor do the divestiture statutes found elsewhere in the CPL undermine this conclusion. CPL 170.20 requires the transfer of a case to a superior court if the People secure an indictment and CPL 170.25 permits the defendant to obtain an order from a superior court directing that a misdemeanor charge be submitted to the grand jury if the interests of justice so require. These statutes discuss only the jurisdiction of local criminal courts, which lose the power to resolve a case if divestiture occurs. The provisions neither state nor imply that a superior court lacks jurisdiction until a case is indicted (or there has been a waiver of indictment and agreement to be prosecuted on SCI).

The divestiture statutes address the ability of the parties— the People or the defendant—to effectuate the removal of a case to a superior court such as Supreme Court. They do not address, much less revoke, the transfer powers granted to Supreme Court and UCS administrators in the Constitution and Judiciary Law § 211. To the contrary, the fact that CPL 170.25 permits a defendant to apply to Supreme Court for an order requiring a misdemeanor charge that is pending in a local criminal court to be submitted to a grand jury belies defendants’ argument that Supreme Court lacks jurisdiction over such a charge until it is incorporated in an indictment—if Supreme Court could not exercise subject matter jurisdiction over unindicted misdemeanor charges, it would not be able to entertain a CPL 170.25 application.

Defendants’ contention—credited by the First Department— that CPL 210.05 is a jurisdictional provision that precludes Supreme Court from trying unindicted misdemeanor cases must also be rejected. CPL 210.05 directs that “[t]he only methods of prosecuting an offense in a superior court are by an indictment filed therewith by a grand jury or by a superior court information filed therewith by a district attorney.” Defendants urge us to interpret the provision as a divestiture statute that prevents Supreme Court from exercising subject matter jurisdiction over any criminal case until there has been an indictment or defendant has agreed to waive indictment and be prosecuted by SCI. But, by its terms, the statute discusses how a case may be prosecuted, thereby imposing a limitation on prosecutorial power. It restricts the methods by which a prosecutor may pursue charges, precluding the People from seeking a trial in the superior courts (including Supreme Court) without first obtaining an indictment or a defendant’s consent to waive indictment and proceed by SCI. The statute neither mentions nor purports to curtail the concurrent trial jurisdiction granted to Supreme Court elsewhere in the CPL (see CPL 10.20, 10.30).

Our determination that CPL 210.05 was intended to do nothing more than restrict prosecutorial authority is consistent with the legislative history of the provision, which predated the CPL. In 1941, the Legislature amended the predecessor to CPL 210.05—Code of Criminal Procedure § 222, entitled “Crimes; how prosecuted”—to contain substantially the same restriction that it includes today, directing that “[a]ll crimes prosecuted in the supreme court, or in a county court. . . must be prosecuted by indictment” (L 1941, ch 255, § 11). The purpose of the restriction was to conform the statute to our holding in People ex rel. Battista v Christian (249 NY 314 [1928]), a case decided at a time when article I, § 6 unqualifiedly precluded any criminal defendant from being tried on a capital or felony offense absent indictment by a grand jury (article I, § 6 was amended in 1973 to permit a defendant to waive indictment and agree to be prosecuted by SCI in certain felony cases).

In Battista, a defendant charged with but not yet indicted for felony burglary petitioned the court to have an information filed charging him with that offense and he then pleaded guilty based on the information. We concluded that the conviction must be vacated, reasoning that article I, § 6 precluded any defendant from being held to answer for a felony absent indictment and that a defendant could not waive that protection because the constitutional requirement of grand jury presentment was more than a personal right but existed to protect the public from prosecutorial excess. In response to Battista, the Legislature amended former Code of Criminal Procedure § 222 to delete language that had purportedly allowed a defendant to waive the constitutional right to avoid felony prosecution absent indictment, thereby imposing the limitation that was carried forward in CPL 210.05 (see Mem of Comm on Crim Cts Law and Pro of Assn of Bar of City of NY, at 3, Bill Jacket, L 1941, ch 255; see also 7th Ann Rep of NY Jud Council, 1941 NY Legis Doc No. 23, at 250).

Thus, when it amended the statute in 1941, the Legislature was concerned with attempts to subvert the then-existing unqualified constitutional mandate that all felonies be prosecuted on indictment—it did not have misdemeanor prosecutions in mind. Indeed, since the New York Constitution has never included a right to prosecution by indictment in misdemeanor cases, the constitutional analysis underlying Battista was not applicable to misdemeanors (in the wake of the 1973 amendment to the Constitution allowing waiver of indictment in some felony cases, Battista is now of limited relevance in the felony context as well). There is no basis to believe that, in amending the predecessor to CPL 210.05 to reflect our decision in Battista, the Legislature intended to impair Supreme Court’s ability to try misdemeanors.

In light of our conclusion that CPL 210.05 can properly be read as a nonjurisdietional limitation on prosecutorial authority, defendants’ alternative interpretation would not control even if it was plausible. “Where the language of a statute is susceptible of two constructions, the courts will adopt that which avoids injustice, hardship, constitutional doubts or other objectionable results” (Matter of Jacob, 86 NY2d 651, 667 [1995] [citations omitted]). As explained above, the general rule is that the Legislature may not curtail the concurrent subject matter jurisdiction vested in Supreme Court in article VI, § 7. Were we to adopt defendants’ view that CPL 210.05 divests Supreme Court of its power to try unindicted misdemeanor cases—cases that the New York City Criminal Court, another UCS court, is permitted to hear—a serious question would be raised about the constitutional validity of CPL 210.05 (see e.g. Darling, supra). Faced with the choice between an interpretation that is consistent with the Constitution (and the jurisdictional statutes in the CPL) and one that creates a potential constitutional infirmity, courts are to choose the former.

Given its language and legislative history, we reject the notion that CPL 210.05 precludes Supreme Court from exercising trial jurisdiction over misdemeanor cases concurrent with other UCS courts. To the extent defendants challenge the transfer of their cases on equal protection grounds, this contention also lacks merit because defendants have not identified any respect in which they received less favorable treatment in Supreme Court than they would have received had their non-jury trials been conducted in the New York City Criminal Court. We therefore hold that Supreme Court had subject matter jurisdiction over defendants’ misdemeanor cases.

Fernandez

After he was tried in the IDV Part of Supreme Court, defendant Fernandez appealed his attempted aggravated harassment in the second degree conviction to the Second Department, arguing that Supreme Court lacked the authority to try his case and further contending that he was entitled to a new trial based on the prosecutor’s elicitation of uncharged crime evidence. The Second Department considered and rejected both arguments. We have held that defendant’s jurisdictional claim lacks merit and, since defendant has not briefed his claim of evidentiary error in this Court, it is deemed abandoned. An affirmance is therefore warranted.

Correa and Mack

In separate trials, defendants Correa and Mack were convicted in the BCD part of Supreme Court and, in the briefs initially filed in the First Department, they raised various arguments concerning the weight and sufficiency of the evidence presented at trial. After requesting additional submissions on the jurisdictional argument, the First Department reversed both

convictions based on the threshold jurisdictional claim and hence did not reach the other contentions. Having disposed of the threshold issue, we reverse the orders of the First Department and remit in each case so that the court can address the arguments that were not decided.

Accordingly, in Correa and Mack, the order of the Appellate Division should be reversed and the cases remitted for consideration of the facts and issues raised but not determined on the appeals to that court. In Fernandez, the order of the Appellate Division should be affirmed.

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

In People v Correa and People v Mack: Order reversed, etc.

In People v Fernandez: Order affirmed.

      . Fernandez has never claimed that his case did not meet the IDV eligibility criteria set forth in the rules.

      . Until a controversy is “litigable,” it may not be heard in Supreme Court (see Motor Veh. Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175, 184 [1990] [once Lemon Law claim reaches a level where litigation is permissible, Supreme Court has jurisdiction to entertain it]; see Sohn v Calderon, 78 NY2d 755 [1991] [Supreme Court has jurisdiction over causes of action that may be pursued in UCS courts, but may not resolve in the first instance controversies the Legislature directed an administrative agency to address first under the doctrine of primary jurisdiction]).

      . When there is a fundamental defect in an accusatory instrument (see e.g. People v Harper, 37 NY2d 96 [1975]), a different jurisdictional issue is presented than the one we confront here. In such a case, it would be improper for any court to issue a judgment of conviction because there is a substantive deficiency in the cause of action. In this case, it is undisputed that the informations were valid and that defendants could have been tried and convicted in New York City Criminal Court. The controversy we must resolve relates to Supreme Court’s ability to exercise concurrent jurisdiction over these cases.

      . Defendants also have not argued that they were disadvantaged by the fact that their appeals were heard in the Appellate Division rather than the Appellate Term. To the contrary, defendants Correa and Mack adopted the First Department’s conclusion that this procedural outcome was, if anything, a “presumed benefit” (70 AD3d at 540).