text:
    [991 NE2d 698, 969 NYS2d 840]
    The People of the State of New York, Respondent, v Nicholas Sanchez, Appellant.
    Argued April 30, 2013;
    decided June 4, 2013

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Richard M. Greenberg and Margaret E. Knight of counsel), for appellant.
    I. Nicholas Sanchez was denied his constitutional right to the effective assistance of counsel where—in the absence of informed consent obtained following an inquiry by the trial court—the Legal Aid Society represented another suspect and, as a result of that conflict of interest, defense counsel did not seek to introduce favorable evidence and failed to fully investigate exculpatory evidence linking the other suspect to an individual whose fingerprints were found at the crime scene. (People v McDonald, 68 NY2d 1; Glasser v United States, 315 US 60; People v Harris, 99 NY2d 202; People v Gomberg, 38 NY2d 307; People v Krausz, 84 NY2d 953; People v Whitley, 14 AD3d 403; United States v Fulton, 5 F3d 605; People v Longtin, 92 NY2d 640; People v Perez, 70 NY2d 773; People v Wilkins, 28 NY2d 53.) II. Nicholas Sanchez’s conviction must be reversed because the complainant’s identification was improperly bolstered by police witnesses who testified that Mr. Sanchez was the person depicted in the crime scene photographs and repeated the complainant’s prior description of the perpetrators. (People v Russell, 79 NY2d 1024; People v Rivera, 259 AD2d 316; People v Harte, 29 AD3d 475; People v Narrod, 23 AD3d 1061; People v Pratt, 266 AD2d 318; People v Coleman, 78 AD3d 457; People v Morgan, 214 AD2d 809; People v Steward, 72 AD3d 524; People v Borgia, 263 AD2d 553; People v Jung Hing, 212 NY 393.) III. The prosecution’s belated disclosure of favorable evidence that fingerprints were taken from the scene of the crime, one of which was later matched to a confessed robber, and that there existed another suspect constituted violations of Brady v Maryland (373 US 83 [1963]) and Criminal Procedure Law § 240.20, which require reversal because it negatively impacted upon the choice of defense and prevented a full investigation. (People v Germeo, 188 AD2d 1027; People v Lyons, 150 AD2d 804; People v Williams, 50 AD3d 1177; United States v Bagley, 473 US 667; Berger v United States, 295 US 78; People v Steadman, 82 NY2d 1; Banks v Dretke, 540 US 668; Strickler v Greene, 527 US 263; People v Vilardi, 76 NY2d 67; Leka v Portuondo, 257 F3d 89.) IV. The court erred in denying the motion to set aside the ver iict where its decision was based on an incorrect evidentiary fine ing that Nicholas Sanchez’s testimony about admissions by another suspect was inadmissible, and where it credited testimony that was implausible and flatly refuted by other credible witnes ses. (People v Salemi, 309 NY 208; People v Settles, 46 NY2d 154; Chambers v Mississippi, 410 US 284.) V Nicholas Sanchez was denied due process and a fair trial because he was identified based upon unduly suggestive identification procedures, including a photographic array where the fillers were older than Mr. Sanchez who is a light-skinned Hispanic man. (Solomon v Smith, 645 F2d 1179; Neil v Biggers, 409 US 188; People v Chipp, 75 NY2d 327; Foster v California, 394 US 440; United States v Eltayib, 88 F3d 157; United States v Wade, 388 US 218; People v Gaddy, 115 AD2d 658; People v Burwell, 26 NY2d 331; People v Carolina, 184 AD2d 520; Raheem v Kelly, 257 F3d 122.) VI. The prosecution’s failure to preserve evidence necessary for effective appellate review requires reversal. (People v Yavru-Sakuk, 98 NY2d 56; People v Harrison, 85 NY2d 794; People v Rivera. 39 NY2d 519; People v Jackson, 98 NY2d 555.)

      Robert T. Johnson, District Attorney, Bronx (Noah J. Chamoy, Joseph N. Ferdenzi and Rafael Curbelo of counsel), for respondent.
    I. The People proved defendant’s guilt beyond a reasonable doubt by overwhelming evidence. II. Defense counsel, ft om the Legal Aid Society, did not suffer from a conflict of interest affecting the defense from the Legal Aid Society’s prior representation of a suspected accomplice. (Wood v Georgia, 450 US 261; Mickens v Taylor, 535 US 162; Cuyler v Sullivan, 446 US 335; People v Ennis, 11 NY3d 403; People v Harris, 99 NY2d 202; People v Berroa, 99 NY2d 134; People v Jordan, 83 NY2d 785; People v Abar, 99 NY2d 406; People v Ortiz, 76 NY2d 652; Strickland v Washington, 466 US 668.) III. Supreme Court exercised sound discretion in allowing detectives to identify defendant as the person depicted in the surveillance photographs and to recount the complainant’s description of the perpetrator. (People v Russell, 165 AD2d 327, 79 NY2d 1024; People v Rivera, 259 AD2d 316; People v Alvino, 71 NY2d 233; People v Lewis, 69 NY2d 321; Senecal v Drollette, 304 NY 446; People v Spinello, 303 NY 193; Ruloff v People, 45 NY 213; People v Byrnes, 33 NY2d 343; People v Magin, 1 AD3d 1024; People v Morgan, 214 AD2d 809.) IV A postverdict CPL 330.30 (1) motion cannot preserve a challenge to the timing of the People’s pretrial disclosures. (Brady v Maryland, 373 US 83; People v Primo, 96 NY2d 351; People v Rogelio, 79 NY2d 843; People v Monserate, 256 AD2d 15; People v Albert, 85 NY2d 851; People v Gray, 86 NY2d 10; People v Martin, 50 NY2d 1029; People v Carter, 63 NY2d 530; People v Harris, 98 NY2d 452; People v Davidson, 98 NY2d 738.) V Supreme Court exercised sound discretion in rejecting defendant’s newly discovered evidence claim on the grounds that there was no probability its admission would affect the verdict. (People v Salemi, 309 NY 208; People v Crimmins, 38 NY2d 407; People v Smith, 63 NY2d 41, 469 US 1227; People v Settles, 46 NY2d 154; People v Bedi, 299 AD2d 556; People v Brown, 126 AD2d 898; People v Ausserau, 77 AD 2d 152; People v Ayala, 142 AD2d 147, 75 NY2d 422; People v Macana, 84 NY2d 173.) VI. Substantial record support exists for Supreme Court’s finding that the photo array and lineup procedures were not unduly suggestive. (People v Jackson, 98 NY2d 555; People v McBride, 14 NY3d 440; People v Jones, 2 NY3d 235; People v Chipp, 75 NY2d 327; Neil v Biggers, 409 US 188; Simmons v United States, 390 US 377; United States v Wade, 388 US 218; People v Hernandez, 70 NY2d 833; People v Banks, 276 AD2d 294; People v Galletti, 239 AD2d 598.) VII. Ample record support exists for the Appellate Division’s finding that the absence of some of the exhibits of surveillance photographs did not impede effective appellate review. (People v Yavru-Sakuk, 98 NY2d 56; People v Glass, 43 NY2d 283; People v Jackson, 98 NY2d 555; People v Parris, 4 NY3d 41; People v Rivera, 39 NY2d 519; People v Melendez, 71 AD3d 530, 16 NY3d 869; People v Bleakley, 69 NY2d 490.)
   OPINION OF THE COURT

Graffeo, J.

In this case we consider whether defendant has adequately demonstrated that he was deprived of meaningful legal representation based on defense counsel’s alleged conflict of interest. On this record, we hold that defendant has not sustained his burden of establishing ineffectiveness, but that he is not precluded from raising this issue in a CPL article 440 proceeding that would permit further factual development of the ¡circumstances pertaining to the claimed conflict.

One evening in December 2004, Freddy Pénalo was working as a taxi driver when he received a call to pick up passengers at a certain location in the Bronx. When he arrived, two young men approached his taxi and asked to be driven to West 233rd Street. Once in the vehicle, Pénalo spoke to the men in the lear seat and observed them in the rearview mirror during the 10 to 12 minute trip.

When the taxi was in the vicinity of the destination, one passenger grabbed Pénalo, announced a robbery and displayed a handgun. He ordered Pénalo to turn over his cash, jewelry and cell phone. The other passenger told the gunman to kill Pénalo, but the initial aggressor assured Pénalo that he would not be murdered if he gave all of his money to them, which he did. Pénalo was then pulled out of the taxi and the men drove away in the vehicle.

The police found the taxi parked near 3460 Bailey Avenue. They discovered that a “taxi cam” inside the vehicle had taken photographs during the robbery. Pénalo gave descriptions to the police, stating that the two assailants were Hispanic men, ah aut 20 years old, approximately five feet, eight inches tall and weighed 150 pounds and 160 pounds, respectively. The ponce also dusted the vehicle for fingerprints.

An investigating detective printed the taxi cam photographs and recognized one of the rear-seat passengers as defendant Nicholas Sanchez, who had been the victim in an earlier case the detective had worked. Another detective who viewed ;he photographs also identified defendant as someone he had interacted with in the neighborhood during the preceding live years. The officers eventually located defendant at 3340 Bailey Avenue—less than a block from where the taxi had been abandoned—and they took defendant’s photograph. That photograph was included in a photo array that Pénalo reviewed and he identified defendant as the man with the gun in his dab After Pénalo subsequently selected defendant in a lineup, defan dant was arrested for the robbery. He told the police that he was 20 years old, five feet, six inches tall and weighed 160 pounds.

Attorney Charles Ippolito, from the Legal Aid Society, represented defendant at trial. During jury selection, the People informed defense counsel that a fingerprint found in the taxi matched another person involved in a sealed criminal case. Supreme Court issued an order unsealing the file and the People revealed that the fingerprint was attributed to Elvis Montero. The People also gave defense counsel a copy of a detective’s report memorializing a statement from defendant’s brother, who indicated that he heard a rumor that the taxi robbery had been committed by “Macho” (also known as Franklin DeJesus). Defense counsel received photographs of Montero and was told that he had been arrested for a robbery in the Bronx two months after the crime involving Pénalo, but that Montero had jumped bail.

Prior to opening statements, defense counsel alerted the court to a possible conflict of interest. Legal Aid had represented DeJesus in an unrelated robbery case that ended in an acquittal. Based on certain “privileged information,” Legal Aid believed that there was some connection between Montero and DeJesus. After internal discussions, defense counsel advised the trial judge that Legal Aid had concluded that “there is no conflict regarding the issue surrounding Mr. Montero” and that a conflict of interest would arise only if DeJesus had to be mentioned during defendant’s trial. Defense counsel stated that this would not be necessary for “evidentiary reasons and for just reasons related to common sense . . . since there is no physical evidence connecting [DeJesus] to this crime.” He further indicated that although Legal Aid recognized “the possibility of [a] potential for conflict,” it was “not necessarily” an actual one and, therefore, the defense was “not asking the Court to act on this” since counsel wanted to avoid “going into” DeJesus as the possible unapprehended perpetrator in order to prevent a conflict or a mistrial. Counsel remarked that the matter had been discussed with defendant and the defense was “ready to proceed” with the trial. The prosecutor commented that the People had “no information about this Mr. DeJesus” and any link he had to the case was “all based on speculation.”

During the trial, Pénalo identified defendant as the gunman. The two detectives testified over defendant’s objection that they had recognized defendant from the taxi cam photographs and that defendant had gained weight since his arrest. The defense strategy was to establish an alibi for defendant and present evidence to support the theory that Montero was the actual perpetrator. The jury ultimately found defendant guilty of fijrstdegree robbery.

the nee led bed After defendant’s conviction, Legal Aid moved to set aside verdict on various grounds, including newly discovered evide: consisting of DeJesus’ alleged jailhouse confession to defendant. Legal Aid was then relieved as defendant’s counsel and defe ndant was assigned a new attorney. Supreme Court ordered a hearing on DeJesus’ purported confession, and defendant testi that DeJesus had admitted to him that he and Montero rob Pénalo. DeJesus, in contrast, acknowledged that he had conversation with defendant while they were incarcerated, but denied that he confessed to the Pénalo robbery or that he knew Montero. According to DeJesus, defendant attempted to bjibe him into accepting responsibility for the crime. Defendant’s former counsel also testified but did not claim personal knowledge of DeJesus’ alleged admission. Supreme Court found DeJesu 3 to be credible, denied the motion to set aside the verdict, and sentenced defendant to eight years of imprisonment and five years of postrelease supervision.

The Appellate Division affirmed (95 AD3d 241 [1st Dept 2012]). It determined that defendant had not been deprivecjl of his right to effective legal assistance due to Legal Aid’s dual representation of defendant and DeJesus because there was no conflict between their interests and, even if there were, it did not operate on the defense since defendant was able to present a third-party culpability theory focusing on Montero as the gunman. The dissenting Justice, who believed that defendant was entitled to a new trial because his Legal Aid attorney had a conflict of interest that affected the defense, granted defendant leave to appeal.

II

s a Defendant contends that trial counsel was ineffective a result of a conflict of interest stemming from Legal Aid’s dual representation of defendant and DeJesus. According to defendant, this conflict of interest provides the only reasonable explanation for his attorney’s failure to inform the jury about DeJesus’ possible connection to the Pénalo robbery. Defendant also maintains that the trial court had a duty to conduqt a Gomberg inquiry (People v Gomberg, 38 NY2d 307 [1975]) in der to ensure that he was aware of the nature of the conflict and the risks associated with it.

The defendant bears the burden of establishing a denia. meaningful representation (see e.g. People v Baker, 14 NY3d of 266, 270 [2010]). When such a claim is premised on a perceived conflict of interest, our precedent differentiates between actual and potential conflicts (see People v Solomon, 20 NY3d 91, 95 [2012]). An actual conflict exists if an attorney simultaneously represents clients whose interests are opposed (see People v Prescott, 21 NY3d 925, 927-928 [2013]; People v Solomon, 20 NY3d at 97) and, in such situations, reversal is required if the defendant does not waive the actual conflict (see People v Solomon, 20 NY3d at 96).

In contrast, a potential conflict that is not waived by the accused requires reversal only if it “operates” on or “affects” the defense (see People v Abar, 99 NY2d 406, 409 [2003])—i.e., the nature of the attorney-client relationship or underlying circumstances bear a “ ‘substantial relation to the conduct of the defense’ ” (People v Ennis, 11 NY3d 403, 410 [2008], quoting People v Berroa, 99 NY2d 134, 142 [2002]). The “requirement that a potential conflict have affected, or operated on, or borne a substantial relation to the conduct of the defense—three formulations of the same principle—is not a requirement that [the] defendant show specific prejudice” (People v Ortiz, 76 NY2d 652, 657 [1990]). Nevertheless, it is the defendant’s “heavy burden” (People v Jordan, 83 NY2d 785, 787 [1994]) to show that a potential conflict actually operated on the defense (see People v Ennis, 11 NY3d at 411; People v Harris, 99 NY2d 202, 211 [2002]).

Here, defendant has established that a potential conflict of interest was apparent: Legal Aid represented both defendant and DeJesus in unrelated criminal matters; DeJesus had been named as a potential suspect during the police investigation; and Legal Aid possessed privileged information indicating that there was “some connection” between DeJesus and Montero, whose fingerprint had been discovered in the rear passenger area of Penalo’s taxi. Although Legal Aid no longer represented DeJesus because he had been acquitted of his criminal charges, it owed him a continuing professional duty to maintain his confidences and therefore raised the possibility of a conflict between its former and present clients—as defense counsel specifically recognized and attempted to avoid (see People v Prescott, 21 NY3d at 928, quoting People v Ortiz, 76 NY2d at 656).

Contrary to defendant’s claim, however, the record does not establish as a matter of law that the potential conflict actually affected the presentation of the defense or otherwise impaired counsel’s performance. Defendant’s trial lawyer correctly observed that there was no physical evidence that linked DeJesus to the Pénalo robbery. Rather, his name had bien provided to the police by defendant’s brother based on an unsubstantiated neighborhood rumor. Counsel therefore reasonably concluded that DeJesus was unlikely to be a necessary component of the overall defense strategy due to evidentiary restrictions and “common sense.”

Moreover, the extent to which DeJesus may have been relevant to the case was significantly diminished by Legal Aid’s apparent belief that DeJesus may have been the unidentified accomplice who was sitting behind Pénalo on the driver’s side of the taxi. Defendant was accused of being the gunman who was depicted in the taxi cam photographs sitting in the rear passenger’s side of the vehicle. Since Montero’s fingerprint had been found on that side of the cab, the theory of the defense was that defendant had been misidentified as the person on ;he passenger side and that Montero was the true perpetrator. Defendant’s attorney was able to present this theory to the jury without implicating DeJesus or acting adversely to his interests as a former client. Indeed, counsel mounted a cogent misidentification and third-party culpability defense consisting of expert testimony regarding the discovery of Montero’s fingerprint in proximity to the area of the taxi where the People claimed defendant had been sitting; the taxi cam photographs; a photograph of Montero, which counsel asked the jury to compare to the taxi cam photos; and a stipulation that Montero confessed to a gunpoint robbery that he committed with two accompli ;es about seven weeks after Pénalo had been robbed. Since this defense strategy did not betray any professional obligatic owed to DeJesus or defendant, the record supports the VÍ3W that the potential conflict was not realized in this case. As result, defendant has not adequately demonstrated that received less than meaningful representation. a he

Our holding does not preclude defendant from raising this issue in a CPL article 440 proceeding in order to supplement the record with additional facts to bolster his contention that the potential conflict of interest affected the presentation of the defense (see e.g. People v Konstantinides, 14 NY3d 1, 12-13 n 4 [2009]).

III

Defendant’s remaining contentions do not require extended discussion. It was not an abuse of discretion to allow the detectives to state their beliefs that defendant was depicted in the taxi cam photographs because it was undisputed that his appearance had changed since the robbery occurred (see generally People v Russell, 79 NY2d 1024, 1025 [1992]) and the trial court issued appropriate limiting instructions to the jury. Defendant received the remedy he requested after the People disclosed the Montero fingerprint evidence on the eve of trial and he had a reasonable opportunity to use it as part of his defense (see People v Cortijo, 70 NY2d 868, 870 [1987]). Defendant is not entitled to relief on his challenge to the denial of the motion for a new trial on the basis of newly discovered evidence (see People v Crimmins, 38 NY2d 407, 415 [1975]). And there is support in the record for the finding that the identification procedures were not unduly suggestive (see People v McBride, 14 NY3d 440, 448 [2010]).

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

Chief Judge Lippman and Judges Read, Smith, Pigott and Rivera concur; Judge Abdus-Salaam taking no part.

Order affirmed.

      . Legal Aid supervisors did not allow attorney Ippolito to review its file on DeJesus.

      . The lack of a Gomberg inquiry does not amount to reversible erjror because defendant and DeJesus were not codefendants being simultaneo represented by Legal Aid, defense counsel stated that the matter had been explained to defendant and the court was told that it was not being askec to take any action (see e.g. People v Jordan, 83 NY2d at 787-788; People v McDonald, 68 NY2d 1, 9 [1986]; People v Macerola, 47 NY2d 257, 264 [1979]).


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [991 NE2d 200, 969 NYS2d 426]
    The People of the State of New York, Respondent, v Chester J. Thomas, Appellant.
    Argued April 30, 2013;
    decided June 4, 2013

      POINTS OF COUNSEL

      Timothy P. Donaher, Monroe County Public Defender, Rochester (Janet C. Somes of counsel), for appellant.
    The trial court committed reversible error when it prevented defense counsel, in summation, from talking about the People’s failure to call Officer McKnees. (People v Tankleff, 84 NY2d 992; People v Williams, 5 NY3d 732; People v Brinson, 265 AD2d 879; People v Ruine, 258 AD2d 278; Noce v Kaufman, 2 NY2d 347; People v

      Rodriguez, 38 NY2d 95; Gordon v People, 33 NY 501; People v Gonzalez, 68 NY2d 424; People v Concepcion, 17 NY3d 192; Williams v Brooklyn El. R.R. Co., 126 NY 96.)

      Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for respondent.
    The court did not prevent the defense from making any legitimate argument in summation. (People v Tankleff, 84 NY2d 992; People v Ashwal, 39 NY2d 105; People v Hall, 18 NY3d 122; People v Savinon, 100 NY2d 192; People v Gonzalez, 68 NY2d 424; People v Williams, 5 NY3d 732; People v Smith, 16 NY3d 786; People v Ortiz, 83 NY2d 989; People v McDaniel, 81 NY2d 10; People v Edwards, 14 NY3d 733.)
   OPINION OF THE COURT

Smith, J.

We hold that the trial court erred in prohibiting defendant from making a “missing witness” argument, but that the erifor was harmless.

I

Defendant was charged with criminal sexual act in the fijst degree, criminal contempt and two counts of assault. The complainant was a woman with whom defendant had had a turbulent relationship for several years, and with whom he had three children. In the course of the relationship, the complainant had three times called either 911 or the police to complein that defendant was abusing her physically; the most recent of these incidents, in July 2005, had led to a “no contact” order of protection. At the complainant’s request, the order was later replaced by one prohibiting only “offensive contact.” The latter order was in force when the events involved in this case took place in November 2006.

According to the complainant’s testimony, on November 27, she and defendant had an argument in which he pulled her hair and punched her face, leading her to threaten him with a knife and drive him out of the house where they had been living together. She went with her children to her father’s for two days, and returned with them to her home on November 29. Defendant arrived at the house shortly after her return. She asked him to leave and, when he refused, she started preparing to leave herself.

This began, according to the complainant, a series of violent acts that extended over 14 hours. She said that defendant dragged her into a spare room, climbed on top of her and punched her in the face and head. He then ordered her into the bedroom where their baby was sleeping, picked up a box cutter (which she had kept there to protect herself from him), and, by threatening her with this weapon, forced her to submit to anal intercourse, in the course of which he bit her in the back. He then ordered her to tend to the baby while he followed her around, holding the box cutter all the while.

The complainant’s account continued: Defendant masturbated on her and then chained her to him by the ankle, using a bicycle chain or dog chain and padlock. The couple lay down, chained together, for a few hours. In the morning, defendant unchained her. After she put one of her children on the bus to school, defendant ordered her upstairs and beat her with the chain. Defendant finally left, after ripping a telephone off the wall, and the complainant ran to a neighbor’s house and called 911.

The complainant’s testimony was corroborated in part by photographs taken within hours of the incident, which show bruises on her face and back, and by testimony from a doctor who saw her that day and observed bruises and swelling around her eyes, bruises on her back and left ankle, and rectal bleeding that was, in the doctor’s opinion, consistent with anal penetration. The doctor also observed a bite mark on the complainant’s back; saliva found in the bite mark contained defendant’s DNA.

At trial, defendant’s counsel focused on what he suggested were weaknesses in the People’s case. The box cutter and the chain had not been found; the complainant testified that defendant took them when he left. More important to this appeal, defense counsel emphasized a statement the complainant had given to a police officer who responded to her 911 call. The officer wrote the statement on the basis of his interview with the complainant, and the complainant signed it. It omitted a number of details that were in the complainant’s later testimony, including the anal rape.

On redirect examination, the complainant was asked why her statement omitted mention of forced anal intercourse. She replied that she had told the officer about that event, and the officer “told me that no judge would ever believe that happened because me and Chester Thomas was in an intimate relationship.” The officer did not testify.

In his summation, defense counsel argued that this par of the complainant’s testimony was incredible. “[W]e’ve changed as a society,” he argued. “No police officer is going to come up there and say, ‘Oh, no one is going to believe you, this was y mr boyfriend.’ That’s not where we are today.” That part of his argument drew no objection. But the prosecutor did object when counsel added: “And if that’s, in fact, what that police officer said, then where was he, where was that police officer on the stand to say: You know what, I didn’t write it down. I didn’t think she was telling me the truth. He didn’t testify to that.” The trial court sustained the objection and directed the jury to disregard counsel’s comment. Counsel tried again to make ;he missing witness argument, with the same result.

After summations, defendant moved for a mistrial on i;he basis of this ruling. The court denied the motion, saying that counsel should have asked for a missing witness instruction if he wanted to make a missing witness argument. Defendant was convicted of criminal sexual act, criminal contempt and one of the two assault counts; he was acquitted on the other assault charge.

The Appellate Division affirmed (People v Thomas, 85 AD3d 1572 [4th Dept 2011]). That court acknowledged that a lawyer who has not sought a missing witness instruction “ ‘may nonetheless try to persuade the jury to draw inferences from t he People’s failure to call an available witness with material, noncumulative information about the case’ ” (id. at 1573, quoting People v Williams, 5 NY3d 732, 734 [2005]). The court se id, however, that “[i]n the event that the officer would have merely confirmed the victim’s story, such testimony would have been cumulative” and that “defendant never made an offer of proof with respect to the officer’s prospective testimony” (id. at 1573). The Appellate Division concluded that “there was no good faith basis” for comment by defense counsel on the People’s failure to call the officer (id.). A Judge of this Court granted leave to appeal, and we now affirm.

II

The courts below clearly erred in holding that defense counsel’s missing witness argument was improper. The trial court’s theory that a request for a missing witness instructio is a prerequisite to a missing witness argument is, as the Appellate Division recognized, flatly contrary to what we said in Williams (5 NY3d at 734). The Appellate Division affirmed on the alternative grounds that the officer’s testimony may have been cumulative and defendant failed to make an offer of proof. This approach may have been impermissible under People v LaFontaine (92 NY2d 470 [1998]) and People v Concepcion (17 NY3d 192 [2011]).

In any event, the Appellate Division’s alternative grounds are also unsound. Just before making the missing witness argument, counsel had attacked as incredible the complainant’s uncorroborated testimony as to what the officer said to her; confirmation of that testimony from the officer would not have been cumulative (see People v Rodriguez, 38 NY2d 95, 101 [1975]). And counsel had no obligation to make an offer of proof as a predicate for a missing witness argument. It is a premise of such an argument, as it is of a missing witness instruction, that the witness is in the control of the party that failed to call him (see People v Savinon, 100 NY2d 192, 197 [2003]). A party making such an argument, like one requesting such an instruction, “can hardly know what [the] witness knows or what the witness would say if called” (People v Kitching, 78 NY2d 532, 537 [1991]).

The question remains whether the error was harmless. We conclude that it was. Strong evidence corroborated the complainant’s testimony that defendant anally raped her: rectal bleeding consistent with penetration and a bite mark on her back containing defendant’s DNA. Also, the doctor who examined the complainant testified that the complainant told her about the anal rape—thus diminishing the significance of the omission of that incident from the statement the complainant gave the police officer.

Defendant argues that, while the forensic evidence may show that anal intercourse took place, it cannot show that the intercourse was not consensual. Theoretically, this is a valid point. But in light of all the evidence in this case—the long, abusive relationship, the complainant’s detailed and consistent account of her ordeal, the bruising and swelling on her body, the bite mark, her prompt report of the rape to the doctor—it is hard to imagine a juror who would find it reasonable to believe that voluntary sex was part of this evening’s events. The possibility that defense counsel could have achieved an acquittal on the criminal sexual act charge had he been allowed to make a missing witness argument is very remote.

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

Chief Judge Lippman and Judges Graffeo, Read, Pigott and Rivera concur; Judge Abdus-Salaam taking no part.

Order affirmed.


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

text:
    [993 NE2d 374, 970 NYS2d 888]
    James Square Associates LP et al., Respondents, v Dennis Mullen, Commissioner, New York State Department of Economic Development, et al., Appellants. In the Matter of J-P Group, LLC, Respondent, v New York State Department of Economic Development et al., Appellants, et al., Respondent. In the Matter of Morris Builders, LP, et al., Respondents, v Empire Zone Designation Board et al., Appellants. In the Matter of Hague Corporation, Respondent, v Empire Zone Designation Board et al., Appellants. In the Matter of WL, LLC, Respondent-Appellant, v Department of Economic Development, Also Known as Empire State Development, et al., Appellants-Respondents.
    Argued April 23, 2013;
    decided June 4, 2013

      POINTS OF COUNSEL

      Eric T. Schneiderman, Attorney General, Albany (Andrew D. Bing, Owen Demuth and Barbara D. Underwood of counsel), for appellants in the first and second above-entitled action and proceeding.
    The limited retroactive application of the April 2009 amendments does not violate the Due Process Clause. (Matter of St. Clair Nation v City of New York, 14 NY3d 452; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; United States v Carlton, 512 US 26; Pension Benefit Guaranty Corporation v R. A. Gray & Co., 467 US 717; Welch v Henry, 305 US 134; Matter of Varrington Corp. v City of N.Y. Dept, of Fin., 85 NY2d 28; Matter of Replan Dev. v Department of Hous. Preserv. & Dev. of City of N.Y., 70 NY2d 451; Matter of Neuner v Weyant, 63 AD2d 290; Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293; People v Brooklyn Garden Apts., 283 NY 373.)

      Eric T. Schneiderman, Attorney General, Albany (Andrew D. Bing, Owen Demuth and Barbara D. Underwood of counsel), for appellants in the third and fourth above-entitled proceedings and actions and appellants-respondents in the fifth above-entitled proceeding and action.
    I. The legislature intended the April 2009 amendments to apply to decertified businesses as of January 1, 2008. (Matter of St. Clair Nation v City of New York, 14 NY3d 452; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Long v State of New York, 7 NY3d 269; Matter of OnBank & Trust Co. [Hartnett], 90 NY2d 725; Matter of Duell v Condon, 84 NY2d 773; Matter of Grand Jury Subpoena Duces Tecum Served on Museum of Modem Art, 93 NY2d 729; Matter of Gleason [Michael Vee, Ltd.], 96 NY2d 117; Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745; Astoria Fed. Sav. & Loan Assn. v State of New York, 222 AD2d 36, 88 NY2d 1064, 522 US 808; People ex rel. Beck v Graves, 280 NY 405.) II. The limited retroactive application of the April 2009 amendments does not violate the Due Process Clause. (United States v Carlton, 512 US 26; Matter of Replan Dev. v Department of Hous. Preserv. & Dev. of City of N.Y., 70 NY2d 451; Pension Benefit Guaranty Corporation v R. A. Gray & Co., 467 US 717; Welch v Henry, 305 US 134; Matter of Varrington Corp. v City of N.Y. Dept. of Fin., 85 NY2d 28; Matter of Neuner v Weyant, 63 AD2d 290; Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293; Usery v Turner Elkhorn Mining Co., 428 US 1; United States v Darusmont, 449 US 292; Wiggins v Commissioner of Internal Revenue, 904 F2d 311.)

      Bond, Schoeneck & King, PLLC, Syracuse (Jonathan B. Fellows of counsel), for respondents in the first above-entitled action.
    I. The legislature did not provide that decertifications under the 2009 Empire Zone Amendments would be retroactive when it adopted them in April 2009. (Morales v Gross, 230 AD2d 7; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293, 368 US 12; Matter of Bright Homes v Weaver, 7 AD2d 352, 6 NY2d 973.) II. The retroactive decertification of the plaintiffs as Empire Zone enterprises is unconstitutional. (Eastern Enterprises v Apfel, 524 US 498; General Motors Corp. v Romein, 503 US 181; Landgraf v USI Film Products, 511 US 244; Pension Benefit Guaranty Corporation v R. A. Gray & Co., 467 US 717; United States v Carlton, 512 US 26; United States v Darusmont, 449 US 292; Oregon v Hass, 420 US 714; People v Isaacson, 44 NY2d 511; People v Singer, 44 NY2d 241; Matter of Varrington Corp. v City of N.Y. Dept. of Fin., 85 NY2d 28.)

      Mosey Persico, LLP, Buffalo (Jennifer C. Persico of counsel), for respondent in the second above-entitled proceeding.
    The retroactive application of the 2009 amendments violates the Due Process Clause. (Matter of Chrysler Props. v Morris, 23 NY2d 515; Matter of Replan Dev. v Department of Hous. Preserv. & Dev. of City of N.Y., 70 NY2d 451; Welch v Henry, 305 US 134; Jacobus v Colgate, 217 NY 235; United States v Hudson, 299 US 498; Holly S. Clarendon Trust v State Tax Commn., 43 NY2d 933; Chrisley v Morin, 126 AD2d 977; People v Brooklyn Garden Apts., 283 NY 373; Tate & Lyle, Inc. v Commissioner of Internal Revenue Serv., 87 F3d 99; Canisius Coll. v United States, 799 F2d 18.)

      Collier, Halpern, Newberg, Nolletti & Bock, LLP, White Plains (Philip M. Halpern of counsel), for respondents in the third above-entitled proceeding and action.
    I. The amendments were not made retroactive until 2010. (Matter of Allied Grocers Coop. v Tax Appeals Trib., 162 AD2d 791; Matter of St. Clair Nation v City of New York, 14 NY3d 452; Forti v New York State Ethics Commn., 75 NY2d 596; Matter of Miller v DeBuono, 90 NY2d 783; Morales v Gross, 230 AD2d 7; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Matter of Amorosi v South Colonie Ind. Cent. School Dist., 9 NY3d 367; Affronti v Crosson, 95 NY2d 713, 534 US 826; Matter of Siwek v Mahoney, 39 NY2d 159; State of New York v Green, 96 NY2d 403.) II. The Third Department properly determined that the retroactive application of the April 2009 amendments violated respondent’s right to due process. (Alliance of Am. Insurers v Chu, 77 NY2d 573; Chrisley v Morin, 126 AD2d 977, 69 NY2d 1037; Nebbia v New York, 291 US 502; Matter of Chrysler Props. v Morris, 23 NY2d 515; Matter of Replan Dev. v Department of Hous. Preserv. & Dev. of City of N.Y., 70 NY2d 451, 485 US 950; Holly S. Clarendon Trust v State Tax Commn., 43 NY2d 933, 439 US 831; United States v Carlton, 512 US 26; Welch v Henry, 305 US 134; People v Brooklyn Garden Apts., 283 NY 373; Wittenberg v City of New York, 135 AD2d 132.)

      Hodgson Russ LLP, Albany (Michelle L. Merola and Christopher L. Doyle of counsel), for respondent in the fourth above-entitled proceeding and action.
    I. The period of retroactivity should be measured from August 2010. (Morales v Gross, 230 AD2d 7; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Matter of Grand Jury Subpoena Duces Tecum Served on Museum of Modern Art, 93 NY2d 729; Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293.) II. Retroactive application of the 2009 amendments to January 1, 2008 violates due process. (United States v Carlton, 512 US 26; Chrisley v Morin, 126 AD2d 977; Matter of Replan Dev. v Department of Hous. Preserv. & Dev. of City of N.Y., 70 NY2d 451; People v Brooklyn Garden Apts., 283 NY 373; People ex rel. New York Cent. & Hudson Riv. R. R. Co. v Mealey, 224 NY 187.)

      Bousquet Holstein PLLC, Syracuse (Robert K. Weiler, Philip S. Bousquet and Cecelia R.S. Cannon of counsel), for respondent-appellant in the fifth above-entitled proceeding and action.
    I. The Third Department applied an incorrect legal standard in reviewing the regulation. (Matter of Daily Star v Board of Trustees of Vil. of Cooperstown, 164 AD2d 531; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Weingarten v Board of Trustees of N.Y. City Teachers’ Retirement Sys., 98 NY2d 575; Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249; Matter of Murtha v Leonard, 210 AD2d 411; Matter of West 90s/W. 100s Neighborhood Coalition v Surles, 205 AD2d 461.) II. The regulation omitting year 2000 investments was inconsistent with the enabling statute, General Municipal Law § 959. (Matter of Stryker v Board of Educ. of City School Dist. of City of N.Y., 86 NY2d 198; Matter of Blalock v Olney, 17 AD3d 842; Matter of Chase Partners, LLC v Incorporated Vil. of Rockville Ctr., 43 AD3d 1049; Pajak v Pajak, 56 NY2d 394; Matter of Matthew L., 65 AD3d 315; Knickerbocker Vil. Tenants Assn. v Calogero, 13 Misc 3d 755; Weed v Tucker, 19 NY 422.) III. Even under a rationality review, the regulation must be overturned. IV Both the Third and Fourth Departments correctly decided that the retroactive amendments to General Municipal Law § 959 violated due process. (Andre v City of New York, 47 AD3d 605; Brunette v Time Warner Entertainment Co., L.P., 32 AD3d 1170; Mrozinski v St. John, 304 AD2d 950; Memphis Light, Gas & Water Div. v Craft, 436 US 1; Weingarten v Board of Trustees of N.Y. City Teachers’ Retirement Sys., 98 NY2d 575; Matter of Gable Transp., Inc. v State of New York, 29 AD3d 1125; Chrisley v Morin, 126 AD2d 977; Matter of Replan Dev. v Department of Hous. Preserv. & Dev. of City of N.Y., 70 NY2d 451; Litod Paper Stock Corp. v City of New York, 154 AD2d 280; Beaumont Co. v State of New York, 125 Misc 2d 87.)
   OPINION OF THE COURT

Chief Judge Lippman.

The common question presented by these appeals is whether the retroactive application of the 2009 Amendments to the Empire Zones Program complies with the Due Process Clause of the Fifth Amendment. Evaluating these cases under the balancing test of Matter of Replan Dev. v Department of Hous. Preserv. & Dev. of City of N.Y. (70 NY2d 451, 456 [1987]), we conclude that the retroactive application of the 2009 Amendments violated plaintiffs’ due process rights and affirm on slightly different grounds from those invoked by the Appellate Division.

I. Facts and Procedural History

A. The Empire Zones Program

In 1986, the legislature enacted New York State’s Economic Development Zones Act (the EDZ Program). The goal of the EDZ Program was to stimulate private investment, private business development, and job creation in certain geographic areas characterized by persistent poverty, high unemployment, shrinking tax bases, and dependence on public assistance (see General Municipal Law § 956). The EDZ Program offered a variety of state tax incentives designed to attract new businesses to the state and to enable existing businesses to expand and create more jobs (see id.). Over time, the EDZ Program gradually shifted its focus on poverty reduction to business development by relaxing eligibility requirements, and the name of the program was changed to the Empire Zones Program Act (the Program) in May of 2000 (L 2000, ch 63, part GG).

Businesses located in qualifying Empire Zone areas and that otherwise meet the statute’s criteria could apply to the Department of Economic Development (DED) for a certificate of eligibility, which they could then submit to the Department of Taxation and Finance in support of their claim for tax credits (see General Municipal Law § 959 [a]). Among the tax credits available to qualifying businesses were the Empire Zone Wage Tax Credit, permitting certified Program participants to claim a credit of $1,500 to $3,000 per new job created against their New York State tax liability (see Tax Law §§ 210 [19]; 606 [k]). Since 2000, the Program has provided that a company’s continued eligibility for Program benefits requires it to meet the Program’s wage, employment, and investment goals, and new tax credits and exemptions were added for qualified Empire Zone enterprises (see Technical Analysis, Dept of Taxation and Finance, Bill Jacket, L 2000, ch 63 at 37-40). The State Comptroller issued two reports (one in 2004 and one in 2007) noting problems with verifying that Program participants were meeting the job creation and investment goals of the Program.

B. The 2009 Amendments

On April 7, 2009, Governor Paterson signed legislation enacting certain amendments (the 2009 Amendments) to General Municipal Law § 959 (L 2009, ch 57, part S-l, § 3). The 2009 Amendments introduced two new criteria that businesses must meet to retain their certificates of eligibility for the Program. The legislature also required the Commissioner of Economic Development to review all certified businesses during 2009 to determine if they should be decertified under the new criteria and closed the Program to new participants (General Municipal Law § 959 [w]). The impetus for the 2009 Amendments was the Governor’s Enacted Budget Financial Plan, which stated that reforms were necessary to rein in abuses in the Empire Zones Program. The Governor projected that the 2009 Amendments would provide savings of $90 million in 2009-2010 to the State.

The new criteria included determining whether Program participants engaged in a practice known as “shirt-changing.” Businesses were prevented from reincorporating or transferring employees or assets among related entities in order to appear to have created new jobs or made new investments to maximize Program benefits (see General Municipal Law § 959 [a]). An additional criterion was that a participant must have “provide[d] economic returns to the state in the form of total remuneration to its employees (i.e. wages and benefits) and investments in its facility greater in value to the tax benefits the business enterprise used and had refunded to it” (General Municipal Law § 959 [a] [v] [6]). This requirement was also referred to as the “1:1 benefit-cost standard.” A business that failed to meet either standard was subject to decertification.

The 2009 Amendments were to take effect immediately, and section 44 of the legislation said that the amendments to the Tax Law relating to the carryover of tax credits “shall apply to taxable years beginning on and after January 1, 2008” (L 2009, ch 57, part S-l, § 44 [a]). However, the legislature did not adopt the provisions of the Governor’s 2009 Budget Bill that provided that decertifications made pursuant to the new criteria and required review by the Commissioner would be retroactive to January 1, 2008. Nevertheless, both the Commissioner of Economic Development and the Department of Taxation and Finance (DTF) announced that the 2009 Amendments applied to the tax years beginning on and after January 1, 2008.

C. The August 2010 Clarification

The legislature amended the statute in August 2010 to state that the decertifications pursuant to the 2009 Amendments were effective as of January 1, 2008. The 2010 update stated, “It is the intent of the legislature to clarify and confirm that the [2009] amendments . . . are intended to be effective for the taxable year .... [S]uch revocations of certification . . . are deemed to be in effect for the taxable year commencing on or after January 1, 2008 and before January 1, 2009” (L 2010, ch 57, part R, § 1).

D. Procedural History

Plaintiffs are businesses which were certified under the Program and were issued certificates of eligibility by the State prior to 2008. On June 29, 2009, the DED issued letters to each of the plaintiffs to notify them of their decertification from the Empire Zones Program. Each letter stated that the revocation was effective January 1, 2008, pursuant to the 2009 Amendments. Plaintiffs were decertified for either “shirt-changing,” failing to meet the 1:1 benefit-cost standard, or for both violations.

In the James Sq. Assoc. LP v Mullen action, plaintiffs filed their complaint while their administrative appeals were pending, seeking a declaration that the decertification constituted an improper retroactive application of the 2009 Amendments. Supreme Court granted the James Sq. plaintiffs’ summary judgment motion and concluded that the State defendants acted without legal authority when they applied the new criteria for the Empire Zones Program retroactively.

After the legislature clarified its intention and stated that the 2009 Amendments to the Empire Zones Program were to be applied retroactively to January 1, 2008, Supreme Court granted the State’s motion to renew its previous motion for summary judgment but adhered to its prior determination. The court determined that the legislature’s “clarification” in fact altered the legislation and created a period of retroactivity of two years and eight months. The court declared that the legislature’s clarification as applied was an unconstitutional taking of the James Sq. plaintiffs’ property.

The Appellate Division affirmed in James Sq. (91 AD3d 164, 166 [4th Dept 2011]). Though the Court agreed that the legislature made clear its intent to make the Empire Zone Amendments retroactive, the Court concluded that the retroactivity of the 2009 Amendments violated the James Sq. plaintiffs’ due process rights. The Court determined that the time period at issue, the lack of warning to plaintiffs, and the lack of legitimate public purpose of the retroactive application of the 2009 Amendments rendered it unconstitutional, null, and void.

Petitioner J-P Group, LLC owns and manages commercial rental properties in Buffalo and was certified as a qualified Empire Zone enterprise in March 2002. J-P Group’s certification was revoked retroactively to January 2008 on the ground that it failed the 1:1 benefit-cost test. Supreme Court granted J-P Group’s petition to annul the State’s decertification of J-P Group as a qualified Empire Zone enterprise. The court stated that the decertification of J-P Group was arbitrary and capricious. The Appellate Division modified, affirming only to the extent that it determined that the amendments to General Municipal Law § 959 are prospective only (91 AD3d 1363, 1364 [4th Dept 2012]). The Court stated, “Although the Legislature intended that the subject amendments were to apply retroactively, we have recently held [in James Sq.] that such ‘retroactive application . . . violates [a party’s] due process rights’ ” (id.).

Plaintiffs Morris Builders, LP and Morris Industrial Builders, LP (Morris Builders) received their Empire Zones Program certification in 2004, and the certification was revoked retroactively on the ground that it failed the 1:1 benefit-cost test. Plaintiff Hague Corporation obtained its certification as an Empire Zone business in 1995, and its certification was also revoked for failing the 1:1 benefit-cost test. In two separate decisions, Supreme Court determined that the retroactive application of the 2009 Amendments did not violate Morris Builders’ and Hague’s due process rights. In both cases, the Appellate Division modified to the extent of granting the part of plaintiffs’ petitions seeking a declaration that the 2009 Amendments could not be applied retroactively to January 1, 2008 (96 AD3d 1144, 1147 [3d Dept 2012]; 95 AD3d 1381, 1384-1385 [3d Dept 2012]).

Plaintiff WL, a commercial real estate company, obtained certification as an Empire Zone business on May 9, 2000. On June 9, 2000, WL acquired commercial real estate and improvements at 217 South Salina Street in Syracuse, a facility in an economically distressed downtown area. In May 2009, WL received an initial letter from the State relaying that an examination of WL’s business records revealed that it “appear[ed]” that WL did not meet the qualifications of continued certification. On June 29, 2009, WL received a letter that stated WL’s certification was revoked effective on January 1, 2008. WL appealed to the Board, and the Board determined that WL failed to provide sufficient evidence that the Commissioner’s finding was in error. The Board revoked WL’s certification because it failed the 1:1 benefit-cost test.

WL maintained that if WL’s year 2000 investments were included in the State’s evaluation, its benefit-cost ratio would be greater than 4:1. WL reported paying $1.6 million for its purchase of the building in the year 2000, and received tax credits between 2001 and 2007 amounting to $473,366. General Municipal Law § 959 (w) states that the DED’s decertification review would be based on at least three business annual reports (BARs) that the business had prepared and filed with the Program. DED had promulgated regulations in 5 NYCRR 11.9 (c) (2) stating that it would review the BARs from the years 2001 to 2007, and, as a result, only WL’s contributions from 2001 to 2007 were considered in the 1:1 benefit-cost test. WL argued, before the Board and in the present matter, that 5 NYCRR 11.9 (c) (2) conflicts with the statutory directive to consider an Empire Zone business’s “total” performance in the Program.

Supreme Court dismissed WL’s petition seeking to annul the Board’s determination to revoke WL’s Empire Zone certification. The court concluded that the State’s determination was not arbitrary and capricious and the State was not required by the General Municipal Law to consider documentation from the year 2000. The Appellate Division again modified to the extent of granting that part of the petition seeking a declaration that the 2009 Amendments could not be applied retroactively to January 1, 2008 (97 AD3d 24 [3d Dept 2012]). Additionally, the Court determined that the “2009 amendments do not require that DED examine every BAR filed by an entity” and the Board had a rational basis to base its review on WL’s performance during the 2001-2007 time period (id. at 29). The Court stated, “[T]he 2001-2007 time frame utilized by DED in its review was uniformly applied to more than 8,000 companies, including those, like [WL], that had been certified prior to 2001 as participants in the EDZP” (id. at 30). The Appellate Division noted that the 2009 Amendments only require the Board to review three BARs and so the Board was authorized to conduct a limited review of WL’s BARs.

The State appealed as of right pursuant to CPLR 5601 (b) (1) in all of these cases on the issue of whether the 2009 Amendments can be applied retroactively. This Court granted WL leave to cross-appeal (20 NY3d 853 [2012]). The cross appeal raises the additional issues of whether 5 NYCRR 11.9 (c) (2) can be harmonized with General Municipal Law § 959 and whether DED violated WL’s due process right in revoking WL’s certification.

II. Retroactive Application of the 2009 Amendments

“[F]or centuries our law has harbored a singular distrust of retroactive statutes” (Eastern Enterprises v Apfel, 524 US 498, 547 [1998, Kennedy, J., dissenting in part]). The United States Supreme Court stated in Landgraf v USI Film Products that “[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted” (511 US 244, 265 [1994]). However, the retroactivity provisions of a tax statute are not necessarily unconstitutional and are generally tolerated and considered valid if for a short period (Matter of Replan Dev. v Department of Hous. Preserv. & Dev. of City of N.Y., 70 NY2d 451, 455 [1987]). This is because taxation is “but a way of apportioning the cost of government among those who in some measure are privileged to enjoy its benefits and must bear its burdens” (Welch v Henry, 305 US 134, 146 [1938]). The courts must examine, “in light of ‘the nature of the tax and the circumstances, in which it is laid’, [whether] the retroactivity of the law is ‘so harsh and oppressive as to transgress the constitutional limitation’ ” (Replan, 70 NY2d at 455, quoting Welch v Henry, 305 US at 147). In Replan, this Court laid out a multi-factor balancing-of-equities test to determine whether a retroactive tax infringes on a taxpayer’s due process rights (see 70 NY2d at 456). The important factors in determining whether a retroactive tax transgresses the constitutional limitation are (1) “the taxpayer’s forewarning of a change in the legislation and the reasonableness of . . . reliance on the old law,” (2) “the length of the retroactive period,” and (3) “the public purpose for retroactive application” {id.).

The Appellate Division decisions below incorrectly characterize the retroactive application of the tax statute here as an unconstitutional taking of property. While the Fifth Amendment’s Takings Clause is but one of many constitutional provisions that express principles of antiretroactivity (see Landgraf, 511 US at 266; see e.g. Ex Post Facto Clause [US Const, art I, §§ 9 (3); 10 (1)]; prohibition on the impairment of contracts [US Const, art I, § 10 (1)]; prohibition on Bills of Attainder [US Const, art I, §§ 9 (3); 10 (1)]), plaintiffs’ claims are not valid Takings Clause challenges. The Takings Clause prevents government actors “from depriving private persons of vested property rights except for a ‘public use’ and upon payment of ‘just compensation’ ” (Landgraf, 511 US at 266; US Const 5th Amend). “[A] party challenging governmental action as an unconstitutional taking bears a substantial burden,” and evaluating whether an action is a “taking” requires a court to consider the “economic impact of the regulation, its interference with reasonable investment backed expectations, and the character of the governmental action” (Eastern Enterprises, 524 US at 523-524).

The purported taking here is plaintiffs’ obligation to pay tax to the State in the absence of a valid tax credit. However, “[t]he mere imposition of an obligation to pay money . . . does not give rise to a claim under the Takings Clause of the Fifth Amendment” (Kitt v United States, 277 F3d 1330, 1336 [Fed Cir 2002], on rehearing in part 288 F3d 1355 [2002] [internal quotation marks and citation omitted]). Federal courts have held that “[f]or retroactive taxation to be a taking, it must be ‘so arbitrary as to constrain to the conclusion that it was not the exertion of taxation’ ” (Kitt, 277 F3d at 1337, quoting Brushaber v Union Pacific R. Co., 240 US 1, 24-25 [1916]; see Houck v Little River Drainage Dist., 239 US 254, 265 [1915] [a tax is only a taking if it is a “flagrant abuse, and by reason of its arbitrary character is mere confiscation of particular property”]). The retroactive tax liability imposed in the present case cannot be characterized as so flagrant as to constitute the confiscation of property under the Takings Clause. Plaintiffs had no guarantee that they would ever recoup their business investments through the receipt of tax credits, and the New York Constitution provides that tax exemptions are freely repealable (NY Const, art XVI, § l).

The dissent maintains that examining all retroactive tax statutes as purported takings of vested property rights would help to clarify this area of law. The dissent’s view unnecessarily complicates the law because the test for whether a retroactive tax violates the Due Process Clause is different from the test for whether a retroactive tax is an unconstitutional taking. An aggrieved taxpayer may choose to make a claim that a retroactive tax violates the Due Process Clause under the standards in United States v Carlton (512 US 26 [1994]) and our precedent in Replan. The focus of the three-pronged test is fairness. The taxpayer additionally may choose to challenge the statute under the Takings Clause, but must recognize that it is more difficult to prove that the tax amounted to “flagrant abuse” and the seizure of property (see Houck, 239 US at 265). The Supreme Court has recognized that it is more difficult to make out violations of the Takings Clause than a violation of the Due Process Clause (see Concrete Pipe & Products of Cal., Inc. v Construction Laborers Pension Trust for Southern Cal., 508 US 602, 641 [1993]). The Takings Clause jurisprudence therefore does not clarify the due process inquiry in Replan-, it is a different question altogether.

We now turn to that other question: whether plaintiffs’ due process rights were infringed by the statute utilizing the three factors articulated in Replan. In terms of “the taxpayer’s forewarning of a change in the legislation and the reasonableness of his reliance on the old law” (Replan, 70 NY2d at 456), the plaintiffs had no warning and no opportunity at any time in 2008 to alter their behavior in anticipation of the impact of the 2009 Amendments. The 2009 Amendments were not introduced in the legislature until January 2009. Though the 2004 and 2007 reports from the Comptroller pointed out weaknesses in the Empire Zones Program, it did not spell out the new criteria on shirt-changing and 1:1 benefit-cost calculations to be implemented for existing Program participants in 2009. The taxpayer’s insufficient reliance in United States v Carlton can be contrasted because the retroactive effect of the tax deduction was to correct an error made by Congress that created a “significant and unanticipated revenue loss” (512 US at 31-32 [“It seems clear that Congress did not contemplate such broad applicability of the deduction when it originally adopted § 2057”]). In contrast, the 2009 Amendments were not meant to cure an unintended error by the legislature. The main purpose of the 2009 Amendments was to increase tax receipts for the state budget. Plaintiffs appeared to have conducted their business affairs in a manner consistent with existing Program requirements in 2008, justifiably relying on the receipt of the tax benefits that were then in effect. Therefore, the first Replan factor weighs in favor of plaintiffs.

The second factor, the length of the period of retroactivity, also benefits plaintiffs. The parties dispute, and indeed the Third and Fourth Department disagreed, as to whether the period of retroactivity spans 16 or 32 months. Plaintiffs argue that the actual period of retroactive application for the 2009 Amendments should not be measured from January 2008 to April 2009, but from January 2008 to August 2010, a total of 32 months. Plaintiffs contend that the August 2010 legislation was not a “clarification” as stated by the legislature but a substantive act of legislation. The State argues that the period of retroactivity should be measured from January 2008 to April 2009 for a period of 16 months. While the language of the August 2010 bill supports the view that the legislature’s 2010 action was simply a clarification of its previous intent, the legislature’s overt omission of retroactivity language in the 2009 Amendments is indicative that August 2010 was the first time the legislature made the Program criteria retroactive.

Regardless of whether the period of retroactivity is deemed to span 16 or 32 months, the length of retroactivity should be considered excessive and weighs against the State. While one year of retroactivity is not considered excessive according to Replan, the period of retroactivity was long enough in the present case so that plaintiffs gained a reasonable expectation that they would “secure repose” in the existing tax scheme (Replan, 70 NY2d at 456 [internal quotation marks omitted]). While the State points to various federal and state cases where tax laws with longer periods of retroactivity were upheld, many of the cases concerned curative measures by legislatures to correct errors, instances where logistical issues made retroactivity necessary (e.g. Welch v Henry, 305 US 134, 144-149 [1938] [retroactivity period of two years upheld where Wisconsin Legislature only met every two years and acted at its first opportunity]), or the lack of detrimental reliance by the taxpayers (e.g. Matter of Varrington Corp. v City of N.Y. Dept. of Fin., 85 NY2d 28, 33 [1995] [two-year period of retroactivity upheld where taxpayer did not detrimentally rely on the temporarily altered tax policy]). As none of these points is present here, the cases cited by the State are distinguishable.

On the third factor, dispositive in this case, the State fails to set forth a valid public purpose for the retroactive application of the 2009 Amendments. The legislature did not have an important public purpose to make the law retroactive. It was not attempting to correct an error in the tax code as in Carlton, or to prevent “the loss of [single room occupancy] housing and to discourage the precipitous eviction of tenants” as in Replan (70 NY2d at 457). The Empire Zones Program’s cost to the state budget in 2008-2009 was not an unanticipated or unintended consequence of a previous legislative enactment. The legislature’s only purposes were to stem abuses in the Empire Zones Program (increasing the benefits to the public relative to the cost of the credits) and .to increase tax receipts. However, retroactively denying tax credits to plaintiffs did nothing to spur investment, to create jobs, or to prevent prior shirt-changing. The retroactive application of the 2009 Amendments simply punished the Program participants more harshly for behavior that already occurred and that they could not alter.

Furthermore, raising money for the state budget is not a particularly compelling justification. Absent an unexpected loss of revenue, such a legislative purpose is insufficient to warrant retroactivity in a case where the other factors militate against it, as is the situation here. Raising funds is the underlying purpose of taxation, and such a rationale would justify every retroactive tax law, obviating the balancing test itself. As such, there is no cognizable valid public purpose for the retroactive effect of the 2009 Amendments, and all three factors weigh in favor of plaintiffs. Therefore, we affirm the Appellate Division’s determinations in all five cases that the 2009 Amendments should not be applied retroactively.

III. 5 NYCRR 11.9 (c)

On its cross appeal, WL argues that 5 NYCRR 11.9 (c), DED’s regulation to limit its review to a Program participant’s business annual reports filed between 2001 and 2007 for decertification purposes, is inconsistent with the wording of the statute. We conclude that DED’s regulation does not conflict with the statutory directive in General Municipal Law § 959 to consider an Empire Zone business’s “total” performance. General Municipal Law § 959 (a) (v) (6) provides that one of the criteria for decertification is that “the business enterprise has failed to provide economic returns to the state in the form of total remuneration to its employees (i.e. wages and benefits) and investments in its facility greater in value to the tax benefits the business enterprise used and had refunded to it.” First of all, the word “total” can be read to modify “remuneration to its employees.” The legislature provided what “total remuneration” to employees is, by listing “wages and benefits.” Additionally, section 959 (w) provides that the Commissioner may base decertification on a review of at least three BARs. While it is arguable whether this requirement was meant to prevent businesses operating for fewer than three years from being decertified, the statute did not specifically require that the DED look at all available BARs in making a decertification decision under the 1:1 benefit-cost test. The responsible agency, DED, gave the ambiguous statute a rational interpretation that was not inconsistent with the plain language (see Matter of Brown v Wing, 93 NY2d 517, 524 [1999] [determining that it is “proper to utilize a rational interpretation by the agency responsible for administering the statute”]).

Moreover, it is unlikely that the legislature would require the DED to look at every business annual report for every business in the Program for every year of participation. Some of the Program businesses have been certified since 1986, and the requirements and benefits of the Program have changed over time. Notably, the Empire Zones Program changed its name in 2000 and implemented new requirements for businesses to pass employment tests to qualify for new credits and benefits. Because of the shift in requirements and benefits and the passage of time, it was practical for remuneration and business investments to be calculated from the start of the Empire Zones Program onwards. Though it may have been more precise to start recognizing investments made on or after May 16, 2000, the inception date of the Program, it was not arbitrary and capricious for the DED to choose to commence recognition of investments as of January 1, 2001 (the beginning of the first full year of the Program). The business annual reports detail the business investments and wages paid per calendar year and do not break down remuneration or investments on a month-to-month basis. It would have been difficult for the DED to collect information regarding investments and wages for only a portion of the year 2000. Therefore, the DED could rationally decide to tally investments beginning in 2001, and its decertification of WL was not arbitrary and capricious.

Accordingly, in each of the first four above-captioned cases, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs, and in Matter of WL, LLC v Department of Economic Dev. the order of the Appellate Division should be affirmed, without costs.

Smith, J. (dissenting in part).

I dissent to the extent that the majority holds the retroactive application of the 2009 Amendments unconstitutional.

The question of when a tax statute may be made retroactive is one on which the decided cases provide frustratingly little guidance. It is clear that some retroactivity is allowed, but not too much. If we ask how much is too much, we are told to consider whether “retroactive application is so harsh and oppressive as to transgress the constitutional limitation” (Welch v Henry, 305 US 134, 147 [1938])—guidance hardly more useful than being told to decide whether the State or the taxpayer wins the case. United States v Carlton (512 US 26, 30 [1994]) says that the Welch formulation “ ‘does not differ from the prohibition against arbitrary and irrational legislation’ that applies generally to enactments in the sphere of economic policy” (quoting Pension Benefit Guaranty Corporation v R. A. Gray & Co., 467 US 717, 733 [1984]). Carlton also says: “Tax legislation is not a promise, and a taxpayer has no vested right in the Internal Revenue Code” (512 US at 33). Yet the Carlton opinion itself examines a retroactive tax statute more minutely than the language I have quoted would seem to suggest, stressing the benign motive of Congress (id. at 32) and the promptness with which Congress acted (id. at 32-33). Matter of Replan Dev. v Department of Hous. Preserv. & Dev. of City of N.Y. (70 NY2d 451, 456 [1987]) establishes a balancing test and lists the factors to be considered, chief among which are “the taxpayer’s forewarning of a change . . . and the reasonableness of his reliance,” but it is no more precise than other authorities in stating the question that the balancing is supposed to answer.

I do not have a formula for bringing great clarity and certainty to this area. But I think the majority creates more confusion by saying, in substance, that the “property” that is protected by the Due Process Clause is different from the property rights protected by other clauses of the Constitution (majority op at 246-247). I would approach retroactive taxation cases in the opposite way: I think it is helpful, and consistent with precedent, to ask whether it was reasonable for the taxpayer to rely on favorable tax treatment as it might rely on a property or contract right protected under the Takings Clause or the Contract Clause of the Constitution. This, it seems to me, is the idea suggested by the traditional term “vested right”—a term long out of fashion (see Matter of Chrysler Props. v Morris, 23 NY2d 515, 521 [1969]), but at least as useful as any of the terminology used in later cases. The approach I suggest would by no means eliminate the vagueness that pervades this area of the law; nor would it supersede the Replan balancing test. But I think it may help to clarify the question we are trying to answer when we apply Replan.

Rejecting this approach, the majority seems to say that the difference between a retroactive tax statute that is a taking and one that only violates due process is between one that is so “arbitrary” as not to be “the exertion of taxation” at all (majority op at 247, quoting Kitt v United States, 277 F3d 1330, 1337 [Fed Cir 2002]; Brushaber v Union Pacific R. Co., 240 US 1, 24-25 [1916]), and one that is less arbitrary but still fails the test of “fairness” (majority op at 248). The majority does not say how courts are to distinguish the greater unfairness from the lesser one, nor explain why it is useful to do so. Nor does it explain how this distinction squares with Carlton’s statement, which I quoted above (at 252) that only “arbitrary and irrational” retroactive tax legislation violates the Due Process Clause. I think it is the majority’s approach, not mine, that “unnecessarily complicates the law” (majority op at 247).

Applying the approach I think correct to this case, I cannot see that the taxpayers were justified in relying on their Empire Program certifications as though they were property or contract rights. In general, as Carlton makes clear, taxpayers are on notice that the tax laws are subject to change. The balancing of the Replan factors, as I would perform it, favors the State. The length of the retroactive period, even putting it at 32 months, was not outrageous; and for 19 of those 32 months—from the time the Governor proposed the 2009 Amendments, in January 2009, until the retroactive legislation was enacted in August 2010—it was public knowledge that a change retroactive to January 1, 2008 was being sought. Indeed, after the 2009 Amendments were passed in April 2009, the Governor and his appointees openly stated their belief that retroactivity had already been accomplished; even if they were wrong, the very debate on the subject gave the taxpayers reason to be cautious in relying on their certifications. The reason for the retroactive amendments was, as the majority acknowledges, to remedy “weaknesses in the Empire Zones Program” (majority op at 248) and “to stem abuses” in that program (id. at 250). The majority says that the legislation was not designed “to correct an error” (id. at 249)—but the distinction between correcting errors and stemming abuses is a thin one, if it exists at all. It is also true, of course, that the legislation was designed to raise revenues and balance the budget—but that is what all taxation does.

I would hold this legislation to be constitutional.

Judges Graffeo, Read, Pigott and Rivera concur with Chief Judge Lippman; Judge Smith dissents in an opinion; Judge Abdus-Saiaam taking no part.

In James Sq. Assoc. LP v Mullen, Matter of J-P Group, LLC v New York State Dept. of Economic Dev., Matter of Morris Bldrs., LP v Empire Zone Designation Bd. and Matter of Hague v Empire Zone Designation Bd.: Order, insofar as appealed from, affirmed, with costs.

Judges Graffeo, Read, Pigott and Rivera concur with Chief Judge Lippman; Judge Smith dissents in part in an opinion; Judge Abdus-Saiaam taking no part.

In Matter of WL, LLC v Department of Economic Dev.: Order affirmed, without costs.

      . (See also New York State Office of the Comptroller, Assessing the Empire Zones Program: Reforms Needed to Improve Program Evaluation and Effectiveness [Rep 3-2005, Apr. 2004], available at http://osc.state.ny.us/reports/ empirezone3-2005.pdf [accessed May 28, 2013].) The Empire Zones Program is overseen by the Department of Economic Development and the Empire State Development Corporation pursuant to General Municipal Law article 18-B.

      . The proposed language of the bill stated:
      “With respect to any business enterprise decertified pursuant to subparagraph six of paragraph (ii) of this subdivision, that decertification (1) will be effective for a taxable year beginning on or after January first, two thousand eight and before January first, two thousand nine and for subsequent taxable years for a business enterprise for which a review is required to be conducted pursuant to subdivision (w) of this section in calendar year two thousand nine” (2009 NY Senate-Assembly Bill S60-A, A160-A).
      This language did not appear in the legislation as ultimately passed and signed by the Governor in 2009.

      . Defendants in these five actions include Dennis Mullen, the Commissioner of the DED; Jamie Woodward, Commissioner of the DTF; the DED; the DTE, the Empire State Development Corporation; and the Empire Zone Designation Board (collectively, the State).

      . Moreover, plaintiffs do not argue that their prospective decertifications from the Empire Zones Program constitute unconstitutional takings.