author: Pigott, J. Chief Judge Lippman Rivera., J.

text:
    [44 NE3d 199, 23 NYS3d 124]
    The People of the State of New York, Respondent, v Joseph Conceicao, Appellant. The People of the State of New York, Respondent, v Federico Perez, Appellant. The People of the State of New York, Appellant, v Javier Sanchez, Respondent.
    Argued October 20, 2015;
    decided November 24, 2015

      POINTS OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, New York City (Paul Wiener of counsel), for appellant in the first above-entitled action.

      People v Tyrell (22 NY3d 359 [2013]) should apply retroactively because it did not create a new rule of law, and appellant’s conviction should be reversed because his case is indistinguishable from Tyrell. (Boykin v Alabama, 395 US 238; Griffith v Kentucky, 479 US 314; People v Favor, 82 NY2d 254; People v Harris, 61 NY2d 9; People v Fiumefreddo, 82 NY2d 536; Florida v Nixon, 543 US 175; People v Nixon, 21 NY2d 338; People v Lopez, 71 NY2d 662; People v Louree, 8 NY3d 541; People v Peque, 22 NY3d 168.)

      Robert T. Johnson, District Attorney, Bronx (Eric C. Washer, Orrie A. Levy and Joseph N. Ferdenzi of counsel), for respondent in the first above-entitled action.
    I. People v Tyrell’s (22 NY3d 359 [2013]) requirement that courts advise defendants of certain Boykin rights on the record in order for a plea to be knowing, intelligent and voluntary, and its determination that the failure of a court to do so may be challenged on direct appeal, even in the absence of preservation, constitute new rules that should be applied prospectively. (People v Mitchell, 80 NY2d 519; People v Favor, 82 NY2d 254; People v Martello, 93 NY2d 645; People v Bialostok, 80 NY2d 738; People v Pepper, 53 NY2d 213; People v Warren, 47 NY2d 740; People v Diaz, 2 AD3d 300; People v Ivery, 18 AD3d 884; People v Graham, 35 AD3d 1039; People v Spivey, 9 AD3d 886.) II. Defendant’s challenge to the sufficiency of his allocution should be rejected because it was not preserved by objection and is otherwise without merit. (People v Bell, 47 NY2d 839; People v Warren, 47 NY2d 740; People v Adams, 46 NY2d 1047; People v Pellegrino, 60 NY2d 636; People v Lopez, 71 NY2d 662; People v Serrano, 15 NY2d 304; People v Butler, 200 AD2d 515; People v Jackson, 114 AD3d 807; People v Nugent, 109 AD3d 625.)

      Seymour W. James, Jr., The Legal Aid Society, New York City (Harold V. Ferguson, Jr., of counsel), for appellant in the second above-entitled action.
    The Appellate Division erred when it held that appellant’s plea proceeding demonstrated that appellant had understanding^ waived his constitutional rights notwithstanding the fact that there was no discussion of appellant’s Boykin rights at this proceeding. (People v Tyrell, 22 NY3d 359; Boykin v Alabama, 395 US 238; People v Lopez, 71 NY2d 662; People v Harris, 61 NY2d 9; Brady v United States, 397 US 742; Parke v Raley, 506 US 20; United States v Dominguez Benitez, 542 US 74; Bordenkircher v Hayes, 434 US 357; Hanson v Phillips, 442 F3d 789; People v Fiumefreddo, 82 NY2d 536.)

      Robert T. Johnson, District Attorney, Bronx (Eric C. Washer and Joseph N. Ferdenzi of counsel), for respondent in the second above-entitled action.
    Since defense counsel, whose performance defendant has never challenged, waived a formal plea allocution, review of the instant claim is foreclosed. In any case, Boykin v Alabama (395 US 238 [1969]) does not apply to plea proceedings where it has already been determined that the defendant will be convicted of a violation and his sentence will be non-incarceratory. Finally, the record demonstrates that defendant’s plea was knowing, intelligent, and voluntary. (North Carolina v Alford, 400 US 25; People v Tyrell, 22 NY3d 359; People v Mitchell, 80 NY2d 519; People v Garcia, 298 AD2d 107; People v Aezah, 191 AD2d 312; People v Patterson, 39 NY2d 288; People v Jones, 81 AD2d 22; People v Martin, 50 NY2d 1029; People v Peque, 22 NY3d 168; People v Ahmed, 66 NY2d 307.)

      Robert T. Johnson, District Attorney, Bronx (Jordan K. Hummel and Joseph N. Ferdenzi of counsel), for appellant in the third above-entitled action.
    Defendant’s ability to challenge the sufficiency of his plea allocution was foreclosed when defense counsel waived formal allocution; in any event, his negotiated plea to an unclassified misdemeanor in exchange for a nonincarceratory sentence was knowing, intelligent, and voluntary. (People v Ford, 62 NY2d 275; People v Tyrell, 22 NY3d 359;
      North Carolina v Alford, 400 US 25; Boykin v Alabama, 395 US 238; People v Reyes, 26 NY2d 97; People v Lopez, 71 NY2d 662; People v Harris, 61 NY2d 9; People v Morgan, 76 NY2d 493; People v Thomas, 68 NY2d 194; People v Hardy, 4 NY3d 192.)

      Seymour W. James, Jr., The Legal Aid Society, New York City (Kristina Schwarz of counsel), for respondent in the third above-entitled action.
    The Appellate Division correctly concluded that respondent’s plea must be vacated, as the record does not demonstrate that respondent was informed of the constitutionally guaranteed rights he was forgoing by entering into a guilty plea agreement. (Boykin v Alabama, 395 US 238; People v Tyrell, 22 NY3d 359; People v Lopez, 71 NY2d 662; People v Harris, 61 NY2d 9; Brady v United States, 397 US 742; Parke v Raley, 506 US 20; United States v Dominguez Benitez, 542 US 74; Bordenkircher v Hayes, 434 US 357; Hanson v Phillips, 442 F3d 789; People v Fiumefreddo, 82 NY2d 536.)
   OPINION OF THE COURT

Pigott, J.

The primary issue in these appeals is whether defendants entered knowing, intelligent and voluntary guilty pleas when the trial courts failed to mention the constitutional rights defendants were waiving — the right to a trial by jury, the right to confront one’s accusers and the privilege against self-incrimination (see Boykin v Alabama, 395 US 238, 243 [1969]). We hold that the failure to recite the Boykin rights does not automatically invalidate an otherwise voluntary and intelligent plea. Where the record as a whole affirmatively shows that the defendant intentionally relinquished those rights, the plea will be upheld. The records in People v Perez and People v Sanchez contain such a showing, and therefore defendants’ pleas were valid. Defendant’s plea in People v Conceicao must be vacated because the record fails to establish a knowing and intelligent waiver.

L

People v Conceicao

On December 30, 2009, defendant Joseph Conceicao was arrested and charged with criminal possession of a controlled substance in the seventh degree, a class A misdemeanor (Penal Law § 220.03). The next day at arraignment, the People recommended a plea to the charge in exchange for two days of community service. Defendant stated that he wished to plead guilty, and the court imposed the agreed-upon sentence.

Defendant appealed, arguing that his plea was not knowing and voluntary because he was never informed of his Boykin rights. The Appellate Term affirmed the judgment of conviction, holding that defendant’s challenge to the adequacy of the plea allocution was unpreserved for appellate review and declining to review it in the interest of justice. Alternatively, the court found defendant’s plea voluntary, knowing and intelligent (People v Conceicao, 33 Misc 3d 132[A], 2011 NY Slip Op 51927[U] [App Term, 1st Dept 2011]). A Judge of this Court granted defendant leave to appeal (23 NY3d 961 [2014]).

People v Perez

Defendant Federico Perez was initially charged with failure to disclose the origin of a recording (Penal Law § 275.35), criminal possession of marijuana in the fifth degree (Penal Law § 221.10 [1]) and unlawful possession of marijuana (Penal Law § 221.05). Two months after his arrest, defendant rejected an offer to plead guilty to disorderly conduct in exchange for a $250 fine, and his attorney moved to suppress evidence and dismiss the first two counts of the accusatory instrument. After five months of litigation, the People offered a plea of disorderly conduct in exchange for a $100 fine, and the court adjourned the case for an additional month so that defendant could consider the offer. Defendant accepted the offer, stated that he wished to plead guilty to a violation in satisfaction of the charges against him, and confirmed that he “had enough time to speak to [his attorney] about th[e] plea.”

Defendant then appealed, arguing his plea was invalid because the court failed to mention any of the Boykin rights. The Appellate Division affirmed the judgment of conviction, finding that “the particular circumstances of the case . . . established] defendant’s understanding and waiver” (People v Perez, 116 AD3d 511, 511 [1st Dept 2014]). A Judge of this Court granted defendant leave to appeal (24 NY3d 1004 [2014]).

People v Sanchez

Defendant Javier Sanchez was arrested for operating a motor vehicle while under the influence of alcohol, an unclassified misdemeanor (Vehicle and Traffic Law §§ 1192 [1], [2], [3]; 1193 [1] [b]). Six months later, on the day of defendant’s scheduled trial, defense counsel alerted the court that defendant wanted to plead guilty to the charge in exchange for a $500 fine, completion of a “drunk driver’s program,” installation and maintenance of an ignition lock and six-month revocation of his license. The prosecutor confirmed the conditions of the plea, and the defendant stated that he agreed to plead guilty. When asked by the court and with defendant at his side, defense counsel waived further allocution, prosecution by information and adjournment for sentence, and the court imposed the agreed-upon sentence.

Defendant appealed, arguing the plea was not voluntary, knowing and intelligent because the trial court did not mention any of the Boykin rights. The Appellate Division reversed the judgment of conviction, vacated the plea and remanded for further proceedings on the ground that the “record fail[ed] to demonstrate that defendant was informed of any of the constitutional rights that he was waiving ... or that he consulted with counsel about the constitutional consequences of his guilty plea” (People v Sanchez, 126 AD3d 482, 482-483 [1st Dept 2015]). A Judge of this Court granted the People leave to appeal (25 NY3d 1077 [2015]).

IL

As a threshold matter, we conclude that defendants’ claims are reviewable on direct appeal despite the fact that none of the defendants moved to withdraw his plea or vacate the judgment of conviction.

“Generally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea ... or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10” (People v Peque, 22 NY3d 168, 182 [2013] [citations omitted]). We have recognized a narrow exception to the preservation requirement, however, where the particular circumstances of a case reveal that a defendant had no actual or practical ability to object to an alleged error in the taking of a plea that was clear from the face of the record (People v Louree, 8 NY3d 541, 546 [2007]). If a defendant has an opportunity to seek relief from the sentencing court, he must preserve his challenge to the plea (see People v Crowder, 24 NY3d 1134, 1136 [2015] [requiring defendant to preserve his challenge to the plea allocution where he “had three opportunities to object”]; People v Murray, 15 NY3d 725, 727 [2010] [requiring defendant to preserve his challenge to the plea allocution where he “could have sought relief from the sentencing court in advance of the sentence’s imposition”]).

In People v Tyrell (22 NY3d 359 [2013]) we reviewed a defendant’s Boykin claims on direct appeal, notwithstanding the absence of a postallocution motion, where the defendant had no opportunity to withdraw the plea before imposition of the sentence (id. at 364, quoting Louree, 8 NY3d at 546, and People v Lopez, 71 NY2d 662, 666 [1988]). Although we suggested in dicta that a court’s failure to mention the Boykin rights may also be viewed as a mode of proceedings error, categorically exempt from the preservation rule, we make clear today that the preservation requirement still applies to Boykin claims depending upon the particular circumstances of a case. Thus, a challenge to the validity of a plea, whether based on the court’s failure to mention the Boykin rights or some other alleged defect in the allocution, must be preserved depending on the facts of a case. Because defendants in these appeals faced a practical inability to move to withdraw their pleas, we may review their unpreserved claims.

We further reject the People’s contention that Tyrell announced a “new” rule of preservation. Tyrell “merely applie[d] previously established principles in a new factual setting” (People v Favor, 82 NY2d 254, 263 [1993]), concluding that “[u]nder the particular circumstances of th[at] case[ ] . . . defendant’s Boykin claims [we] re reviewable on direct appeal” (Tyrell, 22 NY3d at 363). Because Tyrell did not announce a new rule, we have no occasion to consider the circumstances in which new rules apply retroactively (see People v Pepper, 53 NY2d 213 [1981]) and turn to the merits of defendants’ claims.

III.

Trial courts have “a vital responsibility” to ensure that a defendant who pleads guilty makes a knowing, voluntary and intelligent choice among alternative courses of action (People v Harris, 61 NY2d 9, 19 [1983]). They need not engage in any particular litany, however, as “we have repeatedly rejected a formalistic approach to guilty pleas and have steered clear of a uniform mandatory catechism of pleading defendants” (Tyrell, 22 NY3d at 365 [internal quotation marks omitted]). Instead, we have opted for a flexible rule that considers “all of the relevant circumstances surrounding” a plea (Harris, 61 NY2d at 19 [emphasis omitted], quoting Brady v United States, 397 US 742, 749 [1970]). Among other factors, we evaluate “[t]he seriousness of the crime, the competency, experience and actual participation by counsel, the rationality of the ‘plea bargain’, . . . the pace of the proceedings in the particular criminal court” and whether the defendant consulted with his attorney about the constitutional consequences of the plea (id. at 16). So long as the record as a whole “affirmatively disclose [s] that a defendant who pleaded guilty entered his plea understandingly and voluntarily,” the plea will be upheld (id. at 19 [internal quotation marks omitted]).

Our recent decision in Tyrell

“signalled] no retreat from the principle that trial courts retain broad discretion in the taking of pleas and need not follow any kind of rigid catechism. We merely applied] the well-settled proposition that the record as a whole must contain an affirmative demonstration of the defendant’s waiver of his fundamental constitutional rights” and concluded that the particular facts in that case did not establish such a waiver (Tyrell, 22 NY3d at 366).

Although we emphasized the plea court’s failure to discuss any of the Boykin rights on the record, we did not announce a rule that a discussion of those rights is invariably required where the record shows, or “an allegation and evidence” show, that an accused intelligently and understandingly rejected his constitutional rights (id. at 365-366). To the contrary, we based our decision, at least in part, on the absence in the record of any indication that “defendant spoke with his attorney” about the consequences of the plea, for which the court imposed a sentence of incarceration (id. at 366).

Having searched the records in each of these appeals, we hold that defendants, with the exception of Conceicao, intelligently and understandingly waived their constitutional rights.

In Perez, defendant pleaded guilty to a non-criminal offense that carried no consequences other than the $100 fine he paid. Defendant’s attorney actively litigated the case for seven months, demonstrating “the competency, experience and actual participation by counsel” — factors we weigh in determining whether there was a valid waiver (Harris, 61 NY2d at 16). Furthermore, the court adjourned the matter for an additional month just so defendant could consider the plea that he ultimately accepted, and defendant stated on the record that he had enough time to discuss the plea with his attorney. In our view, the Appellate Division correctly concluded that the record as a whole “established] defendant’s understanding and waiver of his constitutional rights” (Perez, 116 AD3d at 511).

The record in Sanchez similarly reflects a knowing and voluntary plea. Represented by the same attorney that represented the defendant in Perez, defendant filed numerous pretrial motions and actively litigated the case for six months. Moreover, defendant was aware of his right to a trial, because his case was on for trial the very same day that defendant pleaded guilty. That his attorney announced at the start of the plea proceeding, without the need for any additional discussion with defendant or the prosecutor, that defendant had decided to plead guilty rather than proceed to the scheduled trial further confirms that defendant made the decision to plead guilty after consulting with counsel prior to the start of the proceeding. And as in Perez, defendant, through his attorney, waived a more detailed allocution that might have entailed discussion of the Boykin rights.

We recognize that a DWI is a serious offense that “affects a defendant’s driving privileges” and “can be the basis for elevating a subsequent similar charge to a felony” (Sanchez, 126 AD3d at 483). We are also aware that defendant did not affirmatively state on the record, as did the defendant in Perez, that he had enough time to speak with his attorney about the plea. Though the plea allocution in Sanchez could have been more robust, the record as a whole reveals a knowing and intelligent choice among alternative courses of action.

By contrast, the record in Conceicao, like the record in Tyrell, contains no discussion of any of the circumstances surrounding the plea or the rights defendant waived; nor does it indicate whether defendant spoke with his attorney before entering the plea. Defendant’s only interaction with the court was stating that he wished to plead guilty. Because the totality of the circumstances in Conceicao reveal that defendant did not have an opportunity to discuss the plea with his attorney or consider its consequences, his plea was invalid.

Accordingly, the order of the Appellate Term in People v Conceicao should be reversed, and the case remitted to Criminal Court of the City of New York for further proceedings. The order of the Appellate Division in People v Perez should be affirmed. The order of the Appellate Division in People v Sanchez should be reversed, and the judgment of Supreme Court reinstated.

Chief Judge Lippman

(concurring in People v Conceicao and dissenting in People v Perez and People v Sanchez). In People v Tyrell (22 NY3d 359 [2013]) we addressed a problematic practice, which although perhaps not as pervasive as the People claim in their Conceicao retroactivity argument, had become troublingly recurrent, particularly in criminal courts handling non-felony matters: guilty pleas were being elicited in a most perfunctory way, often leaving no affirmative record of the foundational waiver of constitutionally guaranteed trial rights — commonly referred to as the Boykin rights — essential to the validity of any plea-based conviction (see Boykin v Alabama, 395 US 238, 243 [1969]). Tyrell reaffirmed that the necessary waiver could not and would not be presumed from a “silent record” (22 NY3d at 365-366). The present appeals collectively ask whether a record that is not utterly silent as to the plausibility of a waiver, but contains no actual expression of a defendant’s waiver of trial rights, is sufficiently “audible” to support a criminal conviction. The majority says that it may be, and, indeed, that in two of the three appeals before us the records are. I believe that this is incorrect as a matter of law, perpetuates what has been in practice a standardless jurisprudence productive of inexplicably disparate outcomes in materially indistinguishable cases, and is demonstrably flawed as a matter of policy. It was precisely this approach to judging the adequacy of foundational trial-right waivers that allowed the emergence and spread of the plea practice we finally found it necessary to disapprove in Tyrell.

Boykin, of course, identified “three important federal rights” encompassed by the waiver necessarily incident to a conviction founded upon a plea — the privilege against compulsory self-incrimination, the right to a jury trial, and the right of confrontation (395 US at 243). The waiver of these rights, said Boykin, could not be presumed from a “silent record” (id.). Boy-kin, however, did not stop there; it did not hold that a waiver could otherwise be presumed. Rather, quoting from Carnley v Cochran (369 US 506 [1962]), a case concerning the adequacy of a waiver of the right to counsel, Boykin made clear that the record of a plea was minimally required to document an actual, not a supposed, waiver; it was required to show “that an accused was offered [the fundamental trial rights just before identified in the opinion] but intelligently and understandingly rejected the offer” (Boykin, 395 US at 242 [internal quotation marks omitted]). “Anything less,” said the Court, “is not waiver” (id.). Nor did the Court leave a question as to where the responsibility for creating the record of the waiver lay: the obligation was judicial and when met by “the judge” left “a record adequate for any review that may be later sought” (id. at 244).

This State’s jurisprudence governing plea adequacy is rooted in cases preceding Boykin — cases whose principal focus was not, as was Boykin’s, the foundational waiver, but rather the sufficiency of the defendant’s factual admission of guilt. In People v Nixon (21 NY2d 338 [1967]), our leading pre-Boykin decision bearing on plea adequacy, the Court pointedly declined to require any uniform canvas in eliciting pleas, holding instead that pleas were to be judged individually, giving consideration to various factors, including the knowledge, experience and native intelligence of the defendant, “the seriousness of the crime, the competency and experience of counsel, the actual intensive participation by counsel, the nature of the crime as clearly understood by laymen, the rationality of the ‘plea bargain,’ and the speed or slowness of procedure in the particular criminal court” (21 NY2d at 353). Our post -Boykin decisions, most notably People v Harris (61 NY2d 9 [1983]), have carried forward Nixon’s rejection of plea “catechisms” and concomitantly have read Boykin not to require a “ritualistic” recitation of the trial rights waived incident to a guilty plea (id. at 19).

Reasonable minds might well differ as to this minimizing gloss of Boykin-, Boykin does, after all, speak of “three important federal rights” that must be waived as a condition of a valid plea and, in turn, requires as a condition of a valid waiver a record showing that the accused was offered and “intelligently and understandingly” rejected those rights. If, as Boykin emphasizes, “[a]nything less is not waiver,” it is exceedingly difficult to understand how a record that simply does not document an offer and a rejection of the core trial rights — and none of the records before us on these appeals does — can support a valid plea-based conviction. It may be that a defendant is intelligent and experienced, that he or she is represented by competent counsel, and that the proposed plea seems rational. But those are circumstances most often merely supposed at the time of a plea, and would not, even if more firmly grounded, singly or in combination overcome the strong presumption against the waiver of fundamental rights (see Johnson v Zerbst, 304 US 458, 464 [1938]) to establish that a plea rests, as it must to be a conviction, upon a knowing and intelligent relinquishment of trial rights. Boykin would seem to say quite clearly that only an actual record waiver, or direct evidence of one, is equal to that formidable task.

While it may seem a sign of judicial sophistication to eschew “litanies,” “catechisms,” “rituals,” “scripts” and “formulas” and to aspire instead to an exercise of discretion based on the “totality,” it is a stubborn, analytically unassailable truth that without a sound waiver of trial rights there can be no valid conviction premised on a plea. Establishing such a waiver may not necessitate a particular choice of words, but it is unavoidable that a certain canvas must in the end be conducted. Federal law requires such a canvas (Fed Rules Crim Pro rule 11 [b] [1]), and it is time to wean ourselves of the frankly provincial notion rooted in our pre-Boykin jurisprudence that one should not be employed in our state courts as well, at least for the purpose of establishing a knowing and intelligent waiver of the basic trial rights.

Clinging to the notion that record trial-right waivers, or their evidentiary equivalent, are unnecessary where it appears to a reviewing court that there are circumstances seeming to suggest that such a waiver would have been made is, as this recent crop of appeals demonstrates, a recipe for the toleration of slipshod practice and deficient pleas, particularly in busy courts handling non-felony cases where the temptation to shortcuts is understandably heightened. It is all too easy to suppose that a represented defendant will, as a matter of course, accept a plea offer to a relatively minor offense carrying a commensurately minor penalty, and, on the basis of that supposition, to fall into the habit of accepting pleas on a record that is silent as to the most direct consequence of the plea — the loss of the defendant’s trial rights. The implicit assumption, that those rights are valueless except as barter for the offered plea and thus not worthy of mention, is incompatible with the presumption of innocence and trivializes a pleading decision that may have most serious personal and economic consequences. It is an assumption ill-befitting our courts, heedless of basic principles governing the waiver of constitutional rights and, to the extent that it needlessly gives rise to marginal pleas inviting further litigation, profligately wasteful of judicial resources. It is time to end rather than encourage such pleas. Tyrell, I believe, attempted to accomplish the former purpose, albeit without signaling a discontinuity in our jurisprudence. The salutary consequence of that careful effort will be minimized by the majority’s willingness to infer waivers never actually elicited by, or otherwise sufficiently proved before the plea court. This does not seem to me to be sound law or sound policy.

Rivera., J.

(concurring in part, dissenting in part in People v Conceicao, and dissenting in People v Perez and People v Sanchez). I join the Chief Judge’s dissent in People v Perez and People v Sanchez, and share his concern regarding the majority’s approach to resolving Boykin claims. I write separately to express my disagreement with the majority’s decision to limit the grounds for review of unpreserved Boykin claims, and to dissent, in part, in People v Conceicao from the majority’s failure to follow our established precedent of dismissing accusatory instruments where no penological purpose exists to remit.

In People v Tyrell, we reviewed defendant’s direct appeal because preservation was not required based on either of two grounds: the so-called LopeziLouree exception or a mode of proceedings error (Tyrell, 22 NY3d 359, 364 [2013]). We explicitly did not resolve which category applied because the defendant’s Boykin claims were “clearly reviewable on direct appeal” (id.). The majority has now determined that Boykin claims must be preserved, like other alleged defects in an allocution, but that a court may, nevertheless, review unpreserved claims when a defendant does not have a practical opportunity to withdraw a plea before sentencing (majority op at 382). In so doing, the majority disregards the fact that the nature of Boykin claims as a general matter, and these claims in particular, necessarily “implicat[es] rights of a constitutional dimension directed to the heart of the proceedings” (Tyrell, 22 NY3d at 364). Therefore, unlike the majority, I would find defendants’ claims in all three appeals reviewable because a Boy-kin violation constitutes a mode of proceedings error.

In People v Conceicao, the majority also departs from our precedent directing dismissal of the accusatory instrument where a plea is vacated after the defendant completes the sentence and no penological purpose is served by remitting the matter (see e.g. Tyrell, 22 NY3d at 366 [plea for marihuana sales vacated after sentence completed]; People v Hightower, 18 NY3d 249, 253 [2011] [accusatory instrument dismissed; defendant had served sentence]; People v Dreyden, 15 NY3d 100, 104 [2010] [complaint charging criminal possession of a weapon jurisdictionally defective; accusatory instrument dismissed because defendant was sentenced to time served]; compare People v Allen, 39 NY2d 916 [1976]; see also People v Mones, 130 AD3d 1244, 1244 [3d Dept 2015] [2012 plea, with sentence of aggregate prison term of 8V2 years and five years’ postrelease supervision, vacated and remitted]; People v Bacetty-Ortiz, 49 Misc 3d 130[A], 2015 NY Slip Op 51420[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] [plea of defendant, initially charged with grand larceny in the third degree, a class D felony, vacated and remitted, because a “penological purpose would be served by remitting the matter” as the charged offenses were “serious”]). Like the defendant in Tyrell, Conceicao has served his sentence, and no discernable difference between the two cases is obvious from the record. Therefore, I see no rational justification for dismissal of the accusatory instrument in one and not the other, and, in accordance with our precedent, I would dismiss the accusatory instrument in People v Conceicao.

In People v Conceicao: Order reversed, defendant’s guilty plea vacated and case remitted to Criminal Court of the City of New York, Bronx County, for further proceedings on the accusatory instrument.

Opinion by Judge Pigott. Judges Abdus-Salaam, Stein and Fahey concur, Chief Judge Lippman concurs in result in a separate concurring opinion, Judge Rivera dissents in part in an opinion.

In People v Perez: Order affirmed.

Opinion by Judge Pigott. Judges Abdus-Salaam, Stein and Fahey concur, Chief Judge Lippman dissents in an opinion in which Judge Rivera concurs, Judge Rivera in a separate dissenting opinion.

In People v Sanchez: Order reversed and judgment of Supreme Court, Bronx County, reinstated.

Opinion by Judge Pigott. Judges Abdus-Salaam, Stein and Fahey concur, Chief Judge Lippman dissents in an opinion in which Judge Rivera concurs, Judge Rivera in a separate dissenting opinion.

       Unlike the parties in Tyrell, the People do not agree that dismissal is the appropriate corrective action in this case (see Tyrell, 22 NY3d at 366). Under the circumstances, we find a “penological purpose[ ]” in sending the case back to Criminal Court (see People v Allen, 39 NY2d 916, 918 [1976]; People v Mones, 130 AD3d 1244, 1247 [3d Dept 2015] [remitting matter to County Court after vacating plea on the ground that defendant did not knowingly and voluntarily waive constitutional rights]; People v Bacetty-Ortiz, 49 Misc 3d 130[A], 2015 NY Slip Op 51420[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] [same]).


source: Caselaw Access Project

author: Chief Judge Lippman.

license: Public Domain

text:
    [44 NE3d 212, 23 NYS3d 137]
    Rita Cusimano, Individually and Derivatively as Shareholder, Officer, Partner and Member of Berita Realty Corp. and Others, and as Partner of Strianese Family Limited Partnership, et al., Respondents, v Andrew V. Schnurr, CPA, et al., Appellants, and Bernard V. Strianese et al., Intervenors-Appellants.
    Argued November 18, 2015;
    decided December 16, 2015

      POINTS OF COUNSEL

      Garvey Schubert Barer, New York City {Alan A. Heller and Benjamin Liebowitz of counsel), for Andrew V. Schnurr and others, appellants, and Bernard V. Strianese, intervenorappellant.
    I. The Federal Arbitration Act does not apply to the parties’ underlying agreements; the timeliness issue is for the court to resolve. (Citizens Bank v Alafabco, Inc., 539 US 52; Allied-Bruce Terminix Cos. v Dobson, 513 US 265; Adams v Suozzi, 433 F3d 220; Matter of Diamond Waterproofing Sys., Inc. v 55 Liberty Owners Corp., 4 NY3d 247; Matter of Laszlo

      N. Tauber & Assoc. I v American Mgt. Assn., 304 AD2d 413; Schiffer v Slomin’s, Inc., 40 Misc 3d 884; Baronoff v Kean Dev. Co., Inc., 12 Misc 3d 627; Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669.) II. Respondents waived their right to have the American Arbitration Association determine the timeliness of their claims. (Stark v Molod Spitz DeSantis & Stark, P.C.,9 NY3d 59; De Sapio v Kohlmeyer, 35 NY2d 402; Sherrill v Grayco Bldrs., 99 AD2d 965, 64 NY2d 261; Matter of County of Rockland v Rockland Assn. of Mgt., 69 AD3d 621; Matter of Waldman v Mosdos Bobov, Inc., 72 AD3d 983; Digitronics Inventioneering Corp. v Jameson, 52 AD3d 1099; Hart v Tri-State Consumer, Inc., 18 AD3d 610; Commander Oil Corp. v Shapiro, 245 AD2d 330; Matter of Hawthorne Dev. Assoc. v Gribin, 128 AD2d 874; Petroleum Pipe Ams. Corp. v Jindal Saw, Ltd., 575 F3d 476.)

      Campolo, Middleton & McCormick, LLP, Ronkonkoma (Patrick McCormick and Christine Malafi of counsel), and Joseph, Terracciano & Lynam LLP, Syosset (Peter J. Terracciano and Janine T. Lynam of counsel), for Bernadette Strianese, intervenor-appellant.
    I. The Appellate Division erred when it held that the Federal Arbitration Act applies to the underlying agreements and, as a result, that the statute of limitations issue was for the arbitrator to determine. (Merrill Lynch, Pierce, Fenner & Smith v Benjamin, 1 AD3d 39; Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273; Madison Hill Corp. v Continental Baking Co., 21 AD2d 538; Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669; Citizens Bank v Alafabco, Inc., 539 US 52; Crespo v 160 W. End Ave. Owners Corp., 253 AD2d 28; Allied-Bruce Terminix Cos. v Dobson, 513 US 265; Matter of Diamond Waterproofing Sys., Inc. v 55 Liberty Owners Corp., 4 NY3d 247; Volt Information Sciences, Inc. v Board of Trustees ofLeland Stanford Junior Univ., 489 US 468; Prima Paint Corp. v Flood & Conklin Mfg. Co., 388 US 395.) II. The Appellate Division erred when it determined that the respondents did not waive their right to have the statute of limitations issue decided by the arbitrator. (Stark v Molod Spitz DeSantis & Stark, P.C., 9 NY3d 59; N.J.R. Assoc. v Tausend, 19 NY3d 597; Sherrill v Grayco Bldrs., 64 NY2d 261; Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363; Braun Equip. Co. v Borelli Assoc., 220 AD2d 311, 71 NY2d 807; Jorge v Sutton, 134 AD2d 573; Matter of Waldman v Mosdos Bobov, Inc., 72 AD3d 983; Hart v Tri-State Consumer, Inc., 18 AD3d 610; Cotton v Slone, 4 F3d 176; Leadertex, Inc. v Morganton Dyeing & Finishing Corp., 67 F3d 20.)

      Dewey Pegno & Kramarsky LLP, New York City CDavid S. Pegno, Tamara L. Book and David C. Gartenberg of counsel), for respondents.
    I. All of the issues decided below are for the arbitrators. (Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co. of Am., 37 NY2d 91; Stark v Molod Spitz DeSantis & Stark, P.C., 9 NY3d 59; Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39; Arciniaga v General Motors Corp., 460 F3d 231; Moses H. Cone Memorial Hospital v Mercury Constr. Corp., 460 US 1; Flanagan v Prudential-Bache Sec., 67 NY2d 500; Life Receivables Trust v Goshawk Syndicate 102 at Lloyd’s, 66 AD3d 495, 14 NY3d 850; Contec Corp. v Remote Solution, Co., Ltd., 398 F3d 205; Gwathmey Siegel Kaufman & Assoc. Architects, LLC v Rales, 898 F Supp 2d 610; Matter of Diamond Waterproofing Sys., Inc. v 55 Liberty Owners Corp., 4 NY3d 247.) II. The Appellate Division correctly held that there was no waiver. (Fletcher v Kidder, Peabody & Co., 81 NY2d 623; In re Crysen/Montenay Energy Co., 226 F3d 160; Moses H. Cone Memorial Hospital v Mercury Constr. Corp., 460 US 1; Singer v Jefferies & Co., 78 NY2d 76; Leadertex, Inc. v Morganton Dyeing & Finishing Corp., 67 F3d 20; Doctor’s Assoc., Inc. v Distajo, 107 F3d 126; Stark v Molod Spitz DeSantis & Stark, P.C., 9 NY3d 59; N.J.R. Assoc. v Tausend, 19 NY3d 597; Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, Erie County White Collar Unit Local #815 [County of Erie], 303 AD2d 1050; Rush v Oppenheimer & Co., 779 F2d 885.) III. The trial court’s statute of limitations holdings were in error. (Telaro v Telaro, 25 NY2d 433; Louisiana Stadium & Exposition Dist. v Merrill Lynch, Pierce, Fenner & Smith Inc., 626 F3d 156; Matter of Corbo v Les Chateau Assoc., 127 AD2d 657; Shah v Monpat Constr., Inc., 65 AD3d 541; Matter of Prudential Sec. [Purello], 206 AD2d 713; Westchester Religious Inst. v Kamerman, 262 AD2d 131; 196 Owners Corp. v Hampton Mgt. Co., 227 AD2d 296; USA United Holdings, Inc. v Tse-Peo, Inc., 23 Misc 3d 1114[A], 2009 NY Slip Op 50775[U]; Lavin v Kaufman, Greenhut, Lebowitz & Forman, 226 AD2d 107.)
   OPINION OF THE COURT

Chief Judge Lippman.

The issues presented by this appeal are whether the Federal Arbitration Act (FAA) is applicable to disputes arising under the agreements at issue and, if so, whether plaintiffs Rita and Dominic Cusimano waived their right to arbitrate by pursuit of this litigation. We hold that the FAA does apply, but that plaintiffs waived their right to arbitrate.

This appeal concerns three commercial agreements entered into among family members regarding family-owned entities. Each agreement was executed by New York residents and each contains a provision stating that disputes will be settled by arbitration pursuant to the rules of the American Arbitration Association (AAA).

The first agreement at issue is the partnership agreement relating to the Strianese Family Limited Partnership (FLIP), which was formed by Rita’s father, intervenor Bernard Strianese, and mother, nonparty Carmella Strianese, in 1998. The FLIP maintains its office in New York. According to the partnership agreement, the FLIP was formed for the stated purposes of owning, acquiring and developing real property, as well as making other types of investments. The FLIP had owned commercial property in Deer Park, New York, but now owns property in Florida that it leases to a CVS drug store.

In 2010, Rita commenced a prior action in Nassau County Supreme Court seeking judicial dissolution of the FLIP. Bernard and Carmella intervened and successfully moved to compel arbitration of the proceeding. The court subsequently granted intervenors’ motion to confirm the arbitration award that found them to be majority owners (Matter of Cusimano v Strianese Family LP, 2011 NY Slip Op 34206[U] [2011]), and the Appellate Division affirmed (Matter of Cusimano v Strianese Family Ltd. Partnership, 97 AD3d 744 [2d Dept 2012]).

The second agreement at issue is the operating agreement of Berita Realty, LLC, which was formed by Rita and her sister, intervenor Bernadette Strianese, in 2001. Its principal place of business is in Port Washington, New York. Berita owns a 19% interest in an entity called Greenbriar Associates, which, in turn, owns a Marriott hotel in Plainview, New York.

In 2010, Rita commenced a separate action in Nassau County Supreme Court seeking judicial dissolution of Berita and an accounting. Bernadette moved to compel arbitration and the court stayed the proceeding, directing arbitration of all issues (Matter of Cusimano v Berita Realty LLC, 2011 NY Slip Op 34207[U] [2011]). Upon Rita’s appeal, the Appellate Division affirmed (Matter of Cusimano v Berita Realty, LLC, 103 AD3d 720 [2d Dept 2013]).

Also at issue is an agreement by which Rita sold her interest in one of the “Seaview Corporations” — 60 Seaview — to Bernadette. The Seaview Corporations were formed by Bernard, Rita and Bernadette, and own two commercial buildings in Port Washington, New York.

The instant action was commenced in August 2011 in New York County Supreme Court, alleging fraud and malpractice against the family’s accountants (defendants Schnurr and Norman) for work they had performed between 1991 and 2009, including allegations that they had aided and abetted fraud and other misconduct on the part of Bernard and Bernadette, who were not named as defendants. Before defendants responded to the complaint, plaintiffs moved to disqualify defendants’ counsel. Plaintiffs also sought discovery by serving three nonparty subpoenas, which defendants moved to quash. During oral argument on the motion to disqualify, defense counsel maintained that the matter “belongs in arbitration.”

Defendants then moved to dismiss the complaint on several grounds, including that the claims were time-barred. Supreme Court dismissed the complaint, but gave plaintiffs 20 days to replead certain causes of action with specificity. The court, however, made clear that it viewed many of the claims as falling outside the statute of limitations. Moreover, while discussing why plaintiffs were seeking corporate documents from the defendant accountants, the court told plaintiffs’ counsel:

“it would be logical if you need documents to go to the corporation that has the documents.
“[PLAINTIFFS’ COUNSEL]: We discussed that, that was sent to arbitration.
“[DEFENSE COUNSEL]: Exactly, and that’s where it belongs.
“THE COURT: So go to arbitration and you get the documents
“[PLAINTIFFS’ COUNSEL]: We don’t believe—
“THE COURT: You don’t want to go to arbitration.
“[PLAINTIFFS’ COUNSEL]: Correct, your Honor.
“[DEFENSE COUNSEL]: So what? They have been sent there so don’t try to get it from you.
“[PLAINTIFFS’ COUNSEL]: Your Honor, we have appellate rights. There certainly is no reason why we should go to arbitration simply because [defense counsel] wants us to and—
“THE COURT: I’m getting a nasty feeling here that this is frivolous litigation.”

On the 20th day, plaintiffs filed a demand for arbitration and a statement of claim with AAA. The allegations were nearly identical, except that Bernard and Bernadette were included as respondents.

Plaintiffs then moved to dismiss the action they had commenced in Supreme Court or, in the alternative, for a stay pending arbitration. Defendant accountants cross-moved to dismiss the action with prejudice or, in the alternative, to permanently stay the claims asserted in the arbitration demand as time-barred. Bernard and Bernadette moved to intervene and for a permanent stay of the arbitration claims, as barred by the statute of limitations.

Concluding that the FAA was inapplicable because the totality of the economic activity at issue did not have an effect on interstate commerce, Supreme Court determined that it, rather than the arbitrator, was the appropriate forum to decide the statute of limitations issues (40 Misc 3d 1208[A], 2013 NY Slip Op 51077[U] [2013]). The court further opined that this was “a flagrant example of forum shopping” and that plaintiffs had waived the right to arbitration by their “resort to, and aggressive participation in this litigation” (2013 NY Slip Op 51077[U], *10). Supreme Court therefore granted the motions to intervene, granted the motions and cross motion to stay the arbitration to the extent of staying certain claims on statute of limitations grounds and granted the plaintiffs’ motion to the extent of directing that the parties arbitrate the remaining non-time-barred claims.

The Appellate Division, among other things, reversed the judgment insofar as appealed from, and denied the motions and cross motion to stay arbitration (120 AD3d 142 [1st Dept 2014]). The Court held that the FAA applied to the agreements because each “concern [ed] transactions that affect [ed] commerce” (120 AD3d at 148). In particular, the Court observed that the entities were involved in commercial real estate, holding interests in properties that were rented to an international hotel chain and a national drug store chain. The Court rejected the argument that plaintiffs had waived the right to arbitration, holding that they had not engaged in “protracted litigation” and there was no resulting prejudice to the other parties. This Court granted defendants and intervenors leave to appeal and we now reverse.

The FAA provides that

“[a] written provision in . . .a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract” (9 USC § 2).

The United States Supreme Court has interpreted the reach of the FAA extremely broadly, characterizing the act’s basic purpose as “overcom[ing] courts’ refusals to enforce agreements to arbitrate” (Allied-Bruce Terminix Cos. v Dobson, 513 US 265, 270 [1995]). In Allied-Bruce, the Supreme Court held that the term “involving commerce” was meant to be the functional equivalent of “affecting commerce,” which typically signals Congress’s intent to invoke the full extent of its powers under the Commerce Clause (see 513 US at 273-274).

In particular, the Court addressed the scope of the statutory language, “evidencing a transaction involving commerce.” The Court observed that there were conflicting interpretations of the phrase — whether it meant that the parties had contemplated substantial interstate activity at the time they had entered the agreement, or whether the transaction at issue must have turned out, in fact, to have involved interstate commerce (see 513 US at 277). The Court concluded that the “commerce in fact” interpretation was more in keeping with the statute, pointing out that the “contemplation of the parties” test appeared contrary to congressional intent, as it would invite litigation about what the parties had been thinking when they executed the agreement (see 513 US at 278). “[W]e accept the ‘commerce in fact’ interpretation, reading the Act’s language as insisting that the ‘transaction’ in fact ‘involv[e]’ interstate commerce, even if the parties did not contemplate an interstate commerce connection” (513 US at 281).

More recently, the United States Supreme Court indicated that it was “perfectly clear that the FAA encompasses a wider range of transactions than those actually ‘in commerce’ — that is, ‘within the flow of interstate commerce’ ” (Citizens Bank v Alafabco, Inc., 539 US 52, 56 [2003]). The Court clarified that it is not necessary for the individual transaction to have a substantial effect on interstate commerce, so long as the type of activity at issue has the requisite substantial effect (see 539 US at 56).

“Congress’ Commerce Clause power ‘may be exercised in individual cases without showing any specific effect upon interstate commerce’ if in the aggregate the economic activity in question would represent ‘a general practice . . . subject to federal control.’ Only that general practice need bear on interstate commerce in a substantial way” (539 US at 56-57 [citations omitted]).

Defendants and intervenors maintain that the FAA does not apply to the agreements at issue here because the agreements themselves do not evidence transactions that affect commerce. They assert that, to the contrary, these agreements are intrafamily transactions executed by New York residents. In addition, they argue that the entities are “passive” and require “little or no active management.” As a result, they contend, there is no impact on interstate commerce.

Here, the Berita and FLIP agreements concern ownership of and investment in commercial properties. Indeed, Berita leases its property to an international hotel chain and the FLIP owns property out-of-state that it leases to a national drug store chain. This activity, in the aggregate, plainly bears on interstate commerce. While the question is closer as to 60 Seaview Corp., that agreement likewise concerns commercial real estate and has the requisite substantial effect on interstate commerce. Although certain courts have determined that single residential real estate transactions are intrastate in nature (see e.g. Saneii v Robards, 289 F Supp 2d 855, 858-859 [WD Ky 2003]), matters concerning commercial real estate have been treated as implicating interstate commerce (see e.g. Hall Street Associates, L. L. C. v Mattel, Inc., 552 US 576, 590 [2008] [observing that there was no dispute that the commercial lease involved interstate commerce]; A-1 A-Lectrician, Inc. v Commonwealth Reit, 943 F Supp 2d 1073, 1078 [D Haw 2013]). Under these circumstances, we conclude that the FAA is applicable to these agreements.

Although this interpretation is undeniably broad, the Supreme Court has made it abundantly clear that the FAA’s reach is expansive. The idea that the intrafamilial nature of the agreements has some bearing on whether the FAA is applicable finds no support in the case law. Nor does the fact that these agreements do not themselves evidence the commercial transactions appear to be significant. The ultimate purpose of the agreements was to authorize participation in the business of commercial real estate and that is, in fact, what the entities did. In determining whether the FAA applies, the emphasis is meant to be on whether the particular economic activity at issue affects interstate commerce — and, here, it does.

Nonetheless, plaintiffs have waived their right to arbitrate this dispute. “ ‘[L]ike contract rights generally, a right to arbitration may be modified, waived or abandoned.’ Accordingly, a litigant may not compel arbitration when its use of the courts is ‘clearly inconsistent with [its] later claim that the parties were obligated to settle their differences by arbitration’ ” (Stark v Molod Spitz DeSantis & Stark, P.C., 9 NY3d 59, 66 [2007] [citations omitted]). While it is true that “[n]ot every foray into the courthouse effects a waiver of the right to arbitrate,” we are satisfied that the totality of plaintiffs’ conduct here establishes waiver (Sherrill v Grayco Bldrs., 64 NY2d 261, 273 [1985]).

Plaintiffs emphasize the federal policy preference in favor of arbitration and observe that “any doubts concerning whether there has been a waiver are resolved in favor of arbitration” (Leadertex, Inc. v Morganton Dyeing & Finishing Corp., 67 F3d 20, 25 [2d Cir 1995]). Generally, when addressing waiver, courts should consider the amount of litigation that has occurred, the length of time between the start of the litigation and the arbitration request, and whether prejudice has been established (see Leadertex, 67 F3d at 25). The majority of federal courts have taken the position that waiver cannot be established in the absence of prejudice (compare Cabinetree of Wisconsin, Inc. v Kraftmaid Cabinetry, Inc., 50 F3d 388, 390 [7th Cir 1995] [holding that an election to proceed in court “is a presumptive waiver of the right to arbitrate”]).

This said, the present case is strikingly similar to Louisiana Stadium & Exposition Dist. v Merrill Lynch, Pierce, Fenner & Smith Inc. (626 F3d 156 [2d Cir 2010]). There, the plaintiff had initially commenced litigation but, after 11 months and substantial motion practice, moved to compel arbitration. Significantly, the defendants had sent a detailed letter identifying deficiencies in the plaintiff’s complaint and had begun the process of filing a motion to dismiss on the pleadings. The court observed that there were “two types of prejudice: substantive prejudice and prejudice due to excessive cost and time delay,” and determined that both types had been established (626 F3d at 159).

As to substantive prejudice, the court pointed out that granting the motion to arbitrate would allow the plaintiff to avoid the motion to dismiss, the substance of which had been related in the deficiency letter (see 626 F3d at 160). As to the second type of prejudice, the court noted that it could consider “ ‘other surrounding circumstances’ beyond the burdens and expenses that would result from a grant of arbitration,” including judicial economy, and observed that the matter had been transferred to a particular district court so that it would be centralized with other similar cases (626 F3d at 160). Finally, the court attached significance to the fact that the plaintiff, who had commenced the litigation, was the party seeking arbitration. “Although we recognize that a plaintiff’s initiation of a lawsuit does not, by itself, result in a waiver of arbitration, we also note that by filing its lawsuit and litigating it at length, [the plaintiff] ‘acted inconsistently with its contractual right to arbitration’ ” (626 F3d at 160 [citation omitted]).

Here, both types of prejudice have likewise been established. After vigorously pursuing their litigation strategy for approximately one year, plaintiffs moved to compel arbitration. Even more telling, the desire for arbitration only arose after Supreme Court made plain its view that plaintiffs’ claims were vexatious and largely time-barred. Indeed, plaintiffs had expressly represented to Supreme Court that they did not want to go to arbitration. Plaintiffs’ behavior is indicative of blatant forum-shopping and, under these circumstances, prejudice has clearly been established. Therefore, plaintiffs have waived the right to arbitration and the issue of timeliness should be determined by the court.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to that court for further proceedings in accordance with this opinion.

Judges Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Order reversed, with costs, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

      . Rita Cusimano represents that she has since moved to the State of Florida.

      . Notably, according to the complaint, one of the two Seaview Corp. buildings was sold for $4.7 million.

      . Despite our previous statement, in dicta, that waiver is generally one of the issues that should be decided by the arbitrator (see Matter of Diamond Waterproofing Sys., Inc. v 55 Liberty Owners Corp., 4 NY3d 247, 252 [2005]), courts have held that whether a party has waived arbitration by litigation-related conduct is an issue for the courts (see In re Pharmacy Benefit Mgrs. Antitrust Litig., 700 F3d 109, 118 [3d Cir 2012]; Joca-Roca Real Estate, LLC v Brennan, 772 F3d 945, 948 [1st Cir 2014]; Grigsby & Assoc., Inc. v M Sec. Inv., 664 F3d 1350, 1354 [11th Cir 2011]; see also Radil v National Union

        Fire Ins. Co. of Pittsburg, PA, 233 P3d 688, 694 [Colo 2010]; Perry Homes v Cull, 258 SW3d 580, 588 [Tex 2008]).


author: Rivera, J.

text:
    [44 NE3d 898, 23 NYS3d 600]
    The People of the State of New York, Respondent, v Willie L. Wragg, Appellant.
    Argued October 13, 2015;
    decided November 19, 2015

      POINTS OF COUNSEL

      Shirley A. Gorman, Brockport, for appellant.
    I. Defense counsel’s performance in this trial was so lacking in important respects that he caused prejudice to his own client and failed to provide meaningful representation. (People v Barboni, 21 NY3d 393; People v Perkins, 15 NY3d 200; People v Oathout, 21 NY3d 127; People v Angelakos, 70 NY2d 670; People v Satterfield, 66 NY2d 796; People v Trowbridge, 305 NY 471; People v Lindsay, 42 NY2d 9; People v Griffin, 29 NY2d 91; People v Caserta, 19 NY2d 18; People v Huertas, 75 NY2d 487.) II. The court below could not sentence Willie L. Wragg as a second child sexual assault felony offender because the People did not exercise their discretion to file the statement required by Criminal Procedure Law § 400.19 (2) before trial. (People v Finnegan, 85 NY2d 53; People v Williams, 19 NY3d 100; Oyler v Boles, 368 US 448; Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; Pajak v Pajak, 56 NY2d 394; People v Tychanski, 78 NY2d 909; People v Litto, 8 NY3d 692; BMW of North America, Inc. v Gore, 517 US 559; People v Vicaretti, 54 AD2d 236, 70 NY2d 903; People v Young, 94 NY2d 171.)

      Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for respondent.
    I. Defendant received effective assistance of counsel. (People v Taylor, 1 NY3d 174; People v Baldi, 54 NY2d 137; People v Satterfield, 66 NY2d 796; People v Benevento, 91 NY2d 708; People v Johnson, 57 NY2d 969; People v Brown, 17 NY3d 742; People v Fisher, 18 NY3d 964; People v Cahill, 2 NY3d 14; People v Galloway, 54 NY2d 396; People v LaValle, 3 NY3d 88.) II. Defendant was properly sentenced as a second child sexual assault felony offender. (People v Bouyea, 64 NY2d 1140.)
   OPINION OF THE COURT

Rivera, J.

Defendant Willie L. Wragg seeks reversal of his conviction of sexual abuse in the first degree on the ground that he was denied meaningful representation due to his attorney’s alleged deficient performance. In the alternative, defendant contends he should be resentenced because the trial court improperly treated him as a second child sexual assault felony offender, inasmuch as the People failed to file a predicate offender statement prior to the commencement of trial, as provided for under CPL 400.19 (2). We find both grounds without merit, and therefore affirm the Appellate Division.

Defendant was charged with one count of sexual abuse in the first degree for touching the vaginal area of a minor (Penal Law § 130.65 [3]). At defendant’s January 2009 jury trial, the victim, nine-year-old MH, testified that on June 22, 2008 she was walking from her friend’s house when a stranger “came out of nowhere” and touched her “front private part” outside her clothing, with his hand. In court she identified the assailant as the defendant.

According to the testimony of two police officers who interviewed MH the day of the incident, she described for them what happened and the assailant, including what he wore. She then traveled with police to the site where she was assaulted, and although the police canvassed the neighborhood, at the time they did not come up with a suspect. Approximately 10 days later, a police investigator spoke with MH and again took a description from her. He then spoke to a daycare provider who lived near MH’s home, and based on his description, the provider identified defendant. According to the investigator he met with MH again eight days later and she identified a suspect. Five days later the police arrested defendant.

Defendant presented a mistaken identity defense at trial. Counsel began to lay the groundwork for that defense during jury voir dire. While questioning prospective jurors about how counsel might establish that the child was mistaken, he asked whether they would be more or less likely to accept that the victim was honestly mistaken if she made an identification days after the initial assault. At one point, the following discussion was held.

“[DEFENSE COUNSEL]: Perjury is lying under oath. Does somebody have to be lying to be mistaken!?]
“PROSPECTIVE JUROR 15: No.
“[DEFENSE COUNSEL]: There is a saying that honest people can be honestly mistaken and certain people can be certainly wrong. [Sir,] is it possible she just can be pointing at the wrong guy?
“PROSPECTIVE JUROR 14: She could, in fact.
“[DEFENSE COUNSEL]: Do you think you would be more likely to accept that if you learned she didn’t identify Mr. Wragg until three days later.”

Then later, counsel directly asked how the child’s mistake might influence the juror’s determination of defendant’s guilt.

“[DEFENSE COUNSEL]: . . . But, if through the cross-examination of her you have a reasonable doubt as to accuracy of her identification, how would you vote?
“PROSPECTIVE JUROR 13: She didn’t actually think he did it?
“[DEFENSE COUNSEL]: If you don’t believe her, not just that you don’t believe her, but you believe she could be mistaken, when she points to Willie, how would you vote?”

Counsel built on this theory of the case during cross-examination of the People’s witnesses. Counsel first challenged MH, asking her questions suggesting her memory was flawed and that she had been coached. He then elicited testimony from the police who interviewed MH that she, in fact, did not provide a description on her own, but rather gave information in response to the officers’ directed questions about the height and weight of the assailant. Counsel also affirmed through testimony from MH’s friend that shortly after the incident she, MH, and others went to a house near where the incident occurred and MH identified someone in the house, not the defendant, as the assailant. This contradicted MH’s direct testimony that she did not identify the man in the house as the person who touched her.

Defendant also presented testimony from witnesses regarding his whereabouts around the time of the incident. His wife and one of her coworkers testified that they left work together midafternoon, picked up defendant and together went to two local stores. Along the way defendant purchased lottery tickets. Defendant sought to support this testimony by admitting into evidence lottery tickets time stamped at 5:20 p.m. These witnesses further testified that defendant and his wife returned home at 5:20, and his wife further claimed that they remained inside their home the rest of the evening.

The prosecutor attacked the credibility of these witnesses on cross-examination. First, she confronted defendant’s wife with a copy of her coworker’s timecard, which indicated that the coworker left more than an hour later than the witnesses had originally claimed. Second, the coworker claimed she did not remember exactly when she left, but acknowledged the hour indicated on the time stamp.

Defendant also presented testimony from a neighbor and self-described good friend and mother of his godchild, who stated that on the day of the incident he came to her home at 5:00 a.m., and left several times throughout the day because he was cooking dinner. She too testified that he left with his wife and the coworker in the afternoon, and that she saw them return home later that evening. The prosecutor challenged the veracity of the witness by eliciting testimony suggesting that her memory of the day of the incident was uncannily certain, compared to her memory of other days and times that same week, and that she had been arrested for petit larceny.

During summation, the prosecutor, as relevant here, used sympathetic terms to describe MH; referenced getting “justice for what happened to her”; told the jury that “[MH’s] testimony standing alone is enough to convict Willie Wragg” and that there was “no reason not to believe [her]”; used the terms “bogus,” “bologna,” and “[pjoppycock” when describing the theory of the defense; that she “love[d]” certain witnesses as well as had a “favorite part” of a defense witness’s testimony; and explained that while she had previously told MH that “[they] were going to be called the jury . . . that is a far cry from coaching.” Defense counsel, for his part, argued on summation that this was a case of mistaken identity, which turned on MH’s sole eyewitness, split-second view of the assailant. He reminded the jury that there was testimony that MH initially identified someone else as the assailant. He contended that MH’s memory was weak, and that even if she did not lie, she was coached. He further suggested that the police testimony about the time of the incident was suspiciously similar, and that they had some motive in the case to make their testimony fit the facts. He also highlighted that no physical evidence established defendant’s guilt.

After deliberating approximately two hours, the jury returned a guilty verdict on the sole count. On the initial day of sentencing, the court stated on the record that defendant should be treated as a second child sexual assault felony offender, and adjourned to allow the People time to prepare the predicate felony offender papers. Thereafter, over defense counsel’s objection, the People filed the predicate offender statement, alleging defendant was previously convicted of first-degree rape for engaging in sexual intercourse with a female family member less than 11 years old, and that he was 18 years or older at the time of the commission of the offense. Following a hearing to establish the facts of the underlying predicate conviction, the court sentenced defendant as a second child sexual assault felony offender to a determinate term of 15 years with five years of postrelease supervision, the maximum sentence allowed by law.

The Appellate Division affirmed (115 AD3d 1281 [4th Dept 2014]), and a Judge of this Court granted leave to appeal (23 NY3d 1070 [2014]). We now affirm.

Defendant claims he was denied a fair trial due to alleged critical mistakes by his trial counsel. These include counsel’s revelation to prospective jurors about MH’s inadmissible, prior out-of-court identification of defendant; his failure to object to improper bolstering by police regarding this identification; and his failure to respond or object to multiple instances of prosecutorial misconduct. The People respond that defendant’s claims amount to no more than dissatisfaction with counsel’s legitimate — albeit unsuccessful — trial tactics, and that counsel cannot be faulted for failing to object to alleged prosecutorial impropriety that was neither egregious nor prejudicial. We find defendant’s arguments unpersuasive, and conclude that he has failed to point to the type of missteps by defense counsel that establish a performance so lacking in competence and strategic purpose that it fails to meet the constitutional minimum standard of professionalism recognized by this Court.

In determining whether counsel provided effective assistance, “[t]he core of the inquiry is whether defendant received meaningful representation” (People v Benevento, 91 NY2d 708, 712 [1998] [internal quotation marks omitted]). In making that assessment, the court must view counsel’s performance in its totality (see People v Baldi, 54 NY2d 137, 147 [1981]). Defendant, of course, bears the burden of establishing his claim that counsel’s performance is constitutionally deficient (People v Barboni, 21 NY3d 393, 406 [2013]). Thus, defendant must demonstrate the absence of strategic or other legitimate explanations for counsel’s alleged failure (People v Satterfield, 66 NY2d 796, 799-800 [1985]). However, a reviewing court must be careful not to “second-guess” counsel, or assess counsel’s performance “with the clarity of hindsight,” effectively substituting its own judgment of the best approach to a given case (Benevento, 91 NY2d at 712; see also Satterfield, 66 NY2d at 799-800 [“It is not for this court to second-guess whether a course chosen by defendant’s counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation”]).

Defendant argues that where the sole defense was the child’s misidentification there is no tactical advantage to revealing that MH in fact recognized defendant before trial, or in permitting the prosecutor, in turn, and without objection, to remind the jury that MH previously identified defendant as the assailant. We disagree.

As the record establishes, during the voir dire counsel asked questions to elicit whether prospective jurors were open to the possibility that the child made an honest mistake about who touched her. This was a critical line of inquiry because the prospective jurors initially appeared hesitant to accept that a child would lie about being sexually assaulted, but appeared open to the suggestion that MH could have innocently identified the wrong person as her assailant. By using the information to question prospective jurors about their reactions to the child’s identification of defendant some time after the assault rather than on the same day, a fact repeated by the prosecutor without objection, counsel sought to ensure selection of jurors receptive to his mistaken identification defense and his arguments about the existence of reasonable doubt of defendant’s guilt based on the child’s error. Given that the defense hinged on the jurors’ belief that the child was mistaken about defendant, and that the prospective jurors were inclined to believe the child, sight unseen, we cannot say that counsel failed to employ a legitimate trial strategy by putting in question MH’s identification at the earliest possible opportunity.

Defendant also claims that counsel was ineffective for failing to object when one of the investigators testified that MH gave him a description of the assailant. According to defendant, this testimony inferentially bolstered MH’s in-court identification. However, as with counsel’s questions to the prospective jurors, the investigator’s testimony that MH identified defendant almost three weeks after the assault supported counsel’s argument that MH made an honest, even understandable, mistake given the lapse of time (see People v Brown, 17 NY3d 742, 744 [2011] [no error where counsel failed to object to remarks by prosecutor impugning defendant because they were consistent with counsel’s theory of the case]). Moreover, the tactic benefit-ted from testimony by MH’s friend that MH identified someone other than the defendant within a short span of time after the incident. That the strategy ultimately failed does not make counsel’s representation ineffective (see People v Benn, 68 NY2d 941, 942 [1986] [ineffective assistance of counsel “requires proof of true ineffectiveness rather than mere disagreement with strategies and tactics that failed”]; see also People v Lester, 124 AD2d 1052, 1052 [4th Dept 1986] [counsel engaged in a reasonable strategy to “cast doubt upon the reliability of the eyewitnesses’ in-court identification” by “attempt(ing) to show that the in-court identification was influenced by an impermissibly suggestive photo array and lineup”]).

Defendant’s other complaint that counsel was ineffective for failing to object to a pattern of prosecutorial misconduct is similarly without merit. First, we note that this is not a case where defense counsel remained silent while the prosecutor exceeded the limits of acceptable argument. Counsel lodged several objections, which the court sustained. Second, while the People concede that some of the prosecutor’s summation remarks were inappropriate, they correctly argue that the remarks were not so egregious that counsel’s failure to object renders his overall representation constitutionally defective. Here, the prosecutor used terms of endearment for the child and argued that the jury should believe the child’s testimony that she was molested. Those comments, focused as they were on the attack rather than on the propriety of the child’s identification of defendant, did not detract from the theory of the defense that days and weeks after the event the child made the honest mistake of picking the wrong person as her attacker.

To the extent defendant complains about the prosecutor’s other remarks, we cannot say on this record that counsel’s failure to object exposed the jury to the type of prosecutorial abuse this Court has previously held to warrant reversal of the conviction. For example, the remarks are not similar to the prosecutor’s statements in People v Wright (25 NY3d 769 [2015]), People v Fisher (18 NY3d 964 [2012]), or People v Ashwal (39 NY2d 105 [1976]). In those cases the prosecutor, during summation, exceeded the bounds of proper conduct by making misleading representations about physical evidence, encouraging inferences of guilt based on facts not in evidence, and improperly conveying guilt in uncharged crimes (see Wright, 25 NY3d at 780-781 [prosecutor incorrectly stated in her summation that defendant had left DNA evidence at the crime scene, when a DNA analysis indicated there was no match]; Fisher, 18 NY3d at 966-967 [prosecutor’s summation was improper where she relied on facts not in evidence, her “less than frank” statement that a witness was not receiving a benefit for testifying, and an admonishment to jury that “their acceptance of the testimony of the child witnesses was essential to the administration of justice”]; Ashwal, 39 NY2d at 110 [prosecutor improperly conveyed the impression that defendant had killed an informant to prevent him from testifying in defendant’s current trial for drug possession]). Here, the prosecutor’s summation rhetoric does not equate, as in the cases above, to the type of conduct that we have previously held denied the defendant a fair trial.

Defendant further contends that counsel was ineffective for failing to object when at various points the prosecutor injected her credibility into the trial, essentially serving as an unsworn witness for the People. However, the record fails to support this characterization of the prosecutor’s conduct and defendant’s other complaints about the prosecutor’s trial conduct are similarly unpersuasive.

Defendant’s final claim concerning counsel’s use of the alibi witnesses and his cross-examination of MH is groundless. First, counsel cannot be held ineffective because the People impeached the albi witnesses when they were caught in a lie (see People v Rose, 57 NY2d 837, 839 [1982] [“Defense counsel’s reliance on the testimony of a witness whose credibility was subsequently impeached on cross-examination may have been an inadvisable trial tactic, but it did not constitute ineffective assistance”]). Second, defense counsel did not err by attempting to impeach the complainant and sole eyewitness by pointing to discrepancies between her trial and grand jury testimonies, even if counsel was unsuccessful in his efforts to do so (see Benevento, 91 NY2d at 712-713 [“As long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance”]).

Viewing counsel’s representation in its totality, defendant received effective assistance of counsel under our state standard (see Baldi, 54 NY2d at 147). Since “our state standard . . . offers greater protection than the federal test, we necessarily reject defendant’s federal constitutional challenge by determining that he was not denied meaningful representation under the State Constitution” (People v Caban, 5 NY3d 143, 156 [2005]).

Turning to defendant’s alternative request for relief, defendant argues that if his conviction stands, he should be resentenced because the People failed to file a predicate felony conviction statement prior to the commencement of trial, as provided in CPL 400.19 (2). On this appeal, defendant does not dispute that he has a predicate felony conviction for a sexual assault against a child based on his January 2000 first-degree rape conviction. As such, this conviction makes him subject to sentencing enhancement under Penal Law § 70.07. Nor does he contend that the court imposed an incarceratory period outside the statutory sentencing range for his current conviction. Instead, he claims that the People exercised their discretion to avoid an enhanced sentence in his case. However, this argument relies on a misinterpretation of the applicable statutes, and is no basis to mandate that defendant be resentenced.

Penal Law § 70.07 (1) provides that “[a] person who stands convicted of a felony offense for a sexual assault against a child, having been subjected to a predicate felony conviction for a sexual assault against a child, must be sentenced in accordance with” a statutorily specified enhanced sentencing range. The governing procedures for determining whether a defendant is subject to a predicate felony conviction for purposes of Penal Law § 70.07 are specified in CPL 400.19 (see Penal Law § 70.07 [3]). Pursuant to CPL 400.19 (2),

“[w]hen information available to the people prior to the trial of a felony offense for a sexual assault against a child indicates that the defendant may have previously been subjected to a predicate felony conviction for a sexual assault against a child, a statement may be filed by the prosecutor at any time before trial commences.”

The defendant must be given a copy of the statement and an opportunity to controvert allegations contained therein (CPL 400.19 [3]). Any allegations not controverted “shall be deemed to have been admitted by the defendant” (id.). Where the defendant controverts an allegation, the statute requires the court hold a hearing and make a finding as to whether the defendant has been subjected to a predicate felony conviction within the meaning of Penal Law § 70.07 (see CPL 400.19 [6]). These procedures ensure that a defendant has appropriate notice and opportunity to challenge allegations of the existence of a sentence-enhancing predicate conviction (cf. People v Bouyea, 64 NY2d 1140, 1142 [1985] [the statutory purpose for filing a predicate statement in second felony offender cases, which contain procedures under CPL 400.21 that are sufficiently similar to the notice and hearing requirements in CPL 400.19, includes “providing defendant with reasonable notice and an opportunity to be heard”]).

It is apparent from the statutory text that convicted second child sexual assault felony offenders must be sentenced under Penal Law § 70.07. Nevertheless, defendant contends that because CPL 400.19 (2) states the People’s predicate “statement may be filed by the prosecutor at any time before trial commences” (emphasis added) the legislature intended to give the People discretion to avoid enhanced sentencing under Penal Law § 70.07 for this category of defendants. He argues that this interpretation of the statute follows logically, given that all the other predicate sentencing statutes, except for those applicable to persistent felony offenders, mandate enhanced sentences, and the CPL sections setting forth the corresponding procedures for determining predicate convictions under those statutes require that the prosecutor must file the statement before sentencing (see CPL 400.15 [“Procedure for determining whether defendant is a second violent felony offender”]; CPL 400.16 [“Procedure for determining whether defendant is a persistent violent felony offender”]; CPL 400.21 [“Procedure for determining whether defendant is a second felony offender or a second felony drug offender”]). According to defendant, the legislative choice to use “may” in CPL 400.19 was intended to give prosecutors discretion to seek enhanced sentencing only when the prosecutor exercised this discretion prior to trial.

This interpretation ignores the text of Penal Law § 70.07 which contains no limiting language in its sentencing provisions. The explicit language in subdivision (1) states that a person convicted of a felony offense for sexual assault against a child, who has a predicate felony conviction for child sexual assault, “must be sentenced” in accordance with Penal Law § 70.07 sentencing provisions. The applicable time for invoking the procedures contained in CPL 400.19 does not change the import of the mandatory language in Penal Law § 70.07, which subjects this category of offenders to legislatively promulgated enhanced sentences. Furthermore, the specific language in CPL 400.19 (2) upon which defendant relies merely permits filing of the statement before commencement of a trial. It does not prohibit filing afterwards, and before sentencing. As courts have concluded, “may” does not mean “must” (see People v Armbruster, 32 AD3d 1348 [4th Dept 2006]; People v Spruill, NYLJ, Feb. 15, 2002 at 9, col 1 [Sup Ct, Bronx County]). Notwithstanding defendant’s requests that we read the statute otherwise, this Court is without authority to read mandatory language into a statute where it is otherwise absent (McKinney’s Cons Laws of NY, Book 1, Statutes § 94; Lederer v Wise Shoe Co., 276 NY 459, 465 [1938] [“We do not by implication read into a clause of a rule or statute a limitation for which we find no sound reason and which would render the clause futile”]).

We further note that because Penal Law § 70.07, on its face, applies to persons once convicted of a felony offense for a sexual assault against a child, CPL 400.19 (2) provides a mechanism for filing the statement before conviction. By allowing for filing at a time when any challenges to the underlying predicate offense can be resolved by the court before trial, this provision serves the additional purpose of facilitating plea negotiation by confirming defendant’s sentencing exposure should he be convicted. Furthermore, and as a consequence, this provision, similar to other statutes, has the added benefit of potentially sparing child victims the stress of reliving the sexual assault by the retelling of the events in a courtroom (see generally Matter of Joanne P., 144 Misc 2d 754, 756 n 2 [Fam Ct, NY County 1989] [explaining that Family Ct Act art 10 proceedings were “designed to avoid the necessity of the child having to testify in court as to the abuse due to the obvious trauma that often accompanies such testimony”]).

This interpretation of Penal Law § 70.07 and CPL 400.19 is fully supported by the legislative history which establishes that the enhanced sentencing laws were intended to increase penalties against sex offenders to better protect the public, and to address recidivism (see Mem of St Dept of Health at 2, Bill Jacket, L 2000, ch 1 [to “(e)nact( ) a provision for repeat child molesters who commit particularly serious sexual assaults against children, and require( ) that they receive enhanced penalties, including mandatory sentences”]). Defendant’s interpretation, however, would mandate enhanced sentencing for every sex offender except those whose victims are children. Certainly the legislature, concerned with public safety and punishment of repeat offenders, would not grant discretion to prosecutors to avoid higher sentences for perpetrators of sex crimes against a particularly vulnerable class of victims.

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

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

Order affirmed.

      . In fact, as noted during the prosecutor’s voir dire questions, MH did not identify the defendant until three weeks after she was attacked.

      . We have no occasion to consider the CPL 400.19 procedures as they apply to the statutorily required determination of whether an offender was 18 years or older at the time of the commission of the predicate offense because defendant’s age, as it relates to the prior felony, is not at issue on this appeal.