author: Graffeo, J. Smith, J.

text:
    [8 NE3d 823, 985 NYS2d 448]
    Deborah Voss et al., Appellants, v The Netherlands Insurance Company et al., Defendants, and CH Insurance Brokerage Services, Co., Inc., Respondent.
    Argued January 9, 2014;
    decided February 25, 2014

      POINTS OF COUNSEL

      Dirk J. Oudemool, Syracuse, for appellants.
    I. A special relationship existed between appellants and respondent. (Murphy v Kuhn, 90 NY2d 266; Kimmell v Schaefer, 89 NY2d 257; Esteve v Abad, 271 App Div 725; Gilson v Metropolitan Opera, 5 NY3d 574.) II. Respondent proximately caused appellants’ injuries. (Howard Stores Corp. v Foremost Ins. Co., 82 AD2d 398, 56 NY2d 991; Kimmell v Schaefer, 89 NY2d 257; Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187; Derdiarian v Felix Contr. Corp., 51 NY2d 308.) III. Presumptive knowledge of the policy is not sufficient as a matter of law to dismiss this case due to the special relationship. (Hoffend & Sons, Inc. v

      Rose & Kiernan, Inc., 19 AD3d 1056; American Bldg. Supply Corp. v Petrocelli Group, Inc., 19 NY3d 730.) IV The American Bldg. Supply Corp. v Petrocelli Group, Inc. (19 NY3d 730 [2012]) decision raises questions about respondent’s choice to exclude rental income from the policy. (Kyes v Northbrook Prop. & Cas. Ins. Co., 278 AD2d 736.)

      Wilson, Kiser, Moskowitz, Edelman & Dicker, LLP, Albany (Thomas M. Witz and Benjamin F. Neidl of counsel), for respondent.
    I. The lower courts were correct to dismiss the complaint because defendant’s alleged conduct was not the proximate cause of any injury to plaintiffs. (Sheehan v City of New York, 40 NY2d 496; Derdiarian v Felix Contr. Corp., 51 NY2d 308; Ventricelli v Kinney Sys. Rent A Car, 45 NY2d 950; Penovich v Schoeck, 252 AD2d 799; Rivera v City of New York, 11 NY2d 856; Broad St., LLC v Gulf Ins. Co., 37 AD3d 126; Royal Indem. Co. v Retail Brand Alliance, Inc., 33 AD3d 392, 11 NY3d 705; 54th St. Ltd. Partners v Fidelity & Guar. Ins. Co., 306 AD2d 67; American States Ins. Co. v Creative Walking, Inc., 16 F Supp 2d 1062, 175 F3d 1023; Quinn v Depew, 63 AD3d 1425.) II. In the alternative, plaintiffs’ claim fails for the separate and distinct reason that Deborah Voss was undisputedly aware of the business interruption limits and did not request that they be raised. (Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 19 AD3d 1056, 7 NY3d 152; Chase’s Cigar Store v Siam Agency, 281 AD2d 911; Nicholas J. Masterpol, Inc. v Travelers Ins. Cos., 273 AD2d 817; Busker on Roof Ltd. Partnership Co. v Warrington, 283 AD2d 376; American Bldg. Supply Corp. v Petrocelli Group, Inc., 19 NY3d 730; Murphy v Kuhn, 90 NY2d 266; Oddo Asset Mgt. v Barclays Bank PLC, 19 NY3d 584.) III. Plaintiffs’ argument concerning lost rental value coverage is without merit. (American Bldg. Supply Corp. v Petrocelli Group, Inc., 19 NY3d 730; Broad St., LLC v Gulf Ins. Co., 37 AD3d 126.)
   OPINION OF THE COURT

Graffeo, J.

The primary question before us in this insurance dispute is whether a special relationship existed between the insureds and their insurance broker. Under the circumstances of this case, we conclude that the broker failed to meet its burden justifying summary judgment and dismissal of the complaint is not warranted.

This action arises out of property damage and the consequent business interruption sustained by plaintiff insureds as a result of water damage that occurred following three separate roof breaches in 2007 and 2008. Plaintiffs are Deborah Voss and three business entities owned and controlled by her: Prop-Co, LLC; Classi People, Inc., doing business as Sertino’s Café; and Dream People, Inc., doing business as Shiver Model. The water damage occurred in a commercial building owned by Prop-Co at 105 First Street in Liverpool, New York, where Voss operated her businesses. The only defendant on this appeal is CH Insurance Brokerage Services, Co., Inc. (CHI), plaintiffs’ insurance broker.

Voss began her relationship with CHI in 2004, before the purchase of the 105 First Street property. At that time, Voss operated two modeling agencies, Shiver Model and another entity, at 7145 Henry Clay Boulevard in Liverpool. Voss met with a representative of CHI, Joe Convertino, Jr., to discuss insurance coverage for the premises and her two companies. At the initial meeting, they discussed property insurance, professional liability coverage and business interruption insurance. Convertino asked Voss to disclose sales figures and other pertinent information to enable him to calculate an appropriate level of business interruption coverage for her companies. According to Voss, Convertino also represented that CHI would reassess and revisit the coverage needs as her businesses grew.

At a follow-up meeting, Convertino recommended a comprehensive policy with defendant The Netherlands Insurance Company (formerly Peerless Insurance Company) that afforded, as relevant here, $75,000 per incident in coverage for business interruption losses. When Voss questioned whether the $75,000 limit was adequate, Convertino allegedly assured her that it would suffice based on the condition of the building as well as the size of her businesses. According to Voss, Convertino also averred that he calculated the level of coverage at a threshold level and reemphasized that, each year, CHI “would take it up as the business evolved.” As a result, Voss accepted Convertino’s recommendations and paid the premium for the Netherlands policy. No claims under the Netherlands policy were made while the businesses were located at Henry Clay Boulevard.

In April 2006, Prop-Co purchased the 105 First Street premises. The new building had two stories and contained more than twice the square footage of the previous location. Voss decided to move Shiver Model to the second floor and planned to open two new businesses in the same building—Sertino’s Café and the Glass Terrace, a catering and banquet business. After Voss discussed the move and the new business arrangements with Convertino, CHI renewed the Netherlands policy with the same $75,000 business interruption limit for the new location and entities. Sertino’s Café opened in the fall of 2006 and, by early 2007, Shiver Model had moved to 105 First Street and the Glass Terrace was in operation.

The first loss occurred in March 2007, when Voss arrived at work and discovered multiple leaks in the roof with dripping water. The damage disrupted her business operations and a roofing contractor, defendant D.R. Casey Construction Corporation, was retained to replace the roof. The following month the new roof failed, resulting in far more extensive water damage to both floors of the premises. All three businesses were required to close for various periods of time. Netherlands treated these two roof breaches as separate occurrences under the business interruption policy (for a maximum potential of $150,000 in coverage) but, according to Voss, delayed making any payments. Apparently, plaintiffs ultimately recouped only $3,197 for the first loss and $30,000 for the second loss.

Meanwhile, in the midst of dealing with the roofing issues in the spring of 2007, Voss met with another CHI representative, Carrie Allen, to discuss the renewal of the Netherlands policy. When Voss received a proposal indicating that the business interruption coverage would be reduced from $75,000 to $30,000, she asserts that she questioned Allen about the reduction and Allen’s response was that she “would take a look at it.” Voss did not follow up, however, because she was preoccupied with the building’s extensive property damage. When the Netherlands policy was renewed in April 2007, it reflected a per occurrence limit of $30,000 in business interruption coverage. In August 2007, Sertino’s Café was closed and Voss opened a new dining establishment, Bistro 105, in its place.

In February 2008, the roof failed a third time, causing significant damage to the premises and further disrupting Voss’s businesses. In May 2008, while the insurance claims stemming from the third loss were still pending, plaintiffs commenced this action against CHI, Netherlands and D.R. Casey, the roofing contractor. As relevant to this appeal, plaintiffs alleged that a special relationship existed with CHI and that CHI had negligently secured inadequate levels of business interruption insurance for all three losses.

Following discovery, CHI moved for summary judgment dismissing the complaint. CHI advanced three arguments in favor of dismissal. First, CHI asserted that no special relationship was created and, in the absence of a specific request by the insureds for coverage that went unfulfilled, CHI could not be held liable for failing to recommend or obtain higher limits. Second, it contended that the negligence claim failed based on Voss’s admission that she had received the policies and was fully aware of the $75,000 policy limit that applied to the first two losses and the $30,000 policy limit in effect at the time of the third loss. Third, CHI claimed that, even if a special relationship existed, any breach of its duty to plaintiffs was not the proximate cause of their injuries. Instead, plaintiffs’ damages occurred because Netherlands failed to timely pay the policy limits.

Supreme Court granted CHI’s motion and dismissed the complaint, agreeing with each of CHI’s contentions. The Appellate Division, with one Justice dissenting, affirmed (96 AD3d 1543 [4th Dept 2012]). The majority disagreed with Supreme Court on the special relationship issue, finding that CHI had failed to meet its burden of demonstrating the absence of a special relationship. Nevertheless, the majority concurred with the other two rationales and upheld Supreme Court’s dismissal. The dissent agreed with the majority that a question of fact existed on the special relationship issue but sided with plaintiffs on the other two questions. The dissent reasoned that, assuming a special relationship existed, it was irrelevant whether plaintiffs were aware of the policy limits and that the proximate cause issue could not be decided as a matter of law on this record.

We granted plaintiffs leave to appeal (20 NY3d 860 [2013]), and now reverse.

As a threshold matter, CHI asserts that we need not address the alternative bases upon which the Appellate Division upheld the dismissal of the complaint because, contrary to the conclusion reached by both the majority and the dissent at the Appellate Division, the record does not support the existence of a special relationship between CHI and plaintiffs. CHI contends that, even read in the light most favorable to the nonmoving party—here, plaintiffs—the evidence confirms only the existence of an ordinary broker-client relationship. Plaintiffs counter that the Appellate Division correctly determined that CHI failed to meet its initial burden of tendering proof that no special relationship arose between them.

On a motion for summary judgment, the moving party (here, CHI) has the burden to establish “a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). If the moving party fails to meet this initial burden, summary judgment must be denied “regardless of the sufficiency of the opposing papers” (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal quotation marks, citation and emphasis omitted]). In other words, the burden does not shift to the non-moving party to persuade the court against summary judgment. We agree with the Appellate Division that CHI failed to meet its threshold burden on the special relationship issue.

As a general principle, insurance brokers “have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so; however, they have no continuing duty to advise, guide or direct a client to obtain additional coverage” (American Bldg. Supply Corp. v Petrocelli Group, Inc., 19 NY3d 730, 735 [2012] [internal quotation marks and citation omitted]). Hence, in the ordinary broker-client setting, the client may prevail in a negligence action only where it can establish that it made a particular request to the broker and the requested coverage was not procured. Plaintiffs in this case do not allege that they specifically requested higher business interruption policy limits and have not proceeded against CHI under this common-law theory of liability. Rather, their claim hinges on the existence of a special relationship.

Where a special relationship develops between the broker and client, we have also indicated that the broker may be liable, even in the absence of a specific request, for failing to advise or direct the client to obtain additional coverage (see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152, 158 [2006]; Murphy v Kuhn, 90 NY2d 266, 272-273 [1997]). In Murphy, we recognized that “particularized situations may arise in which insurance agents, through their conduct or by express or implied contract with customers and clients, may assume or acquire duties in addition to those fixed at common law” and that the question of whether such additional responsibilities should be “given legal effect is governed by the particular relationship between the parties and is best determined on a case-by-case basis” (Murphy, 90 NY2d at 272). We identified three exceptional situations that may give rise to a special relationship, thereby creating an additional duty of advisement:

“(1) the agent receives compensation for consultation apart from payment of the premiums; (2) there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent; or (3) there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on” (id. [citations omitted]).

Here, the proof submitted by CHI in support of its summary judgment motion—principally, Voss’s deposition testimony—did not satisfy its initial burden of establishing the absence of a material issue of fact as to the existence of a special relationship. To the contrary, viewed in the light most favorable to plaintiffs, the evidence suggests that “there was some interaction regarding a question of [business interruption] coverage, with the insured relying on the expertise of the agent” (id.). Voss testified that she and Convertino discussed business interruption insurance from the inception of their business relationship. She asserts that he requested sales figures and other relevant data in order to calculate the proper level of coverage. When Convertino later returned with a proposal that included $75,000 in business interruption insurance, Voss avers that she questioned that amount and that Convertino assured her that it was adequate based on his review of her business finances as well as the layout of the building. Moreover, although the $75,000 per occurrence limit was originally placed in 2004, before plaintiffs moved to 105 First Street and expanded their businesses to include a restaurant and catering operation, Voss testified that Convertino repeatedly pledged that CHI would review coverage annually and recommend adjustments as her businesses grew.

Under these circumstances, we conclude that the complaint cannot be dismissed on the basis that no special relationship arose between the parties. In doing so, we reiterate that special relationships in the insurance brokerage context are the exception, not the norm, and we emphasize that it remains to be determined whether a special relationship existed here. To prevail on their claim, plaintiffs bear the ultimate burden of proving that a special relationship did in fact arise and that they relied on CHI’s expertise in calculating the proper level of business interruption coverage during the relevant time frames.

We now turn briefly to the two grounds that nevertheless warranted dismissal in the Appellate Division majority’s view. As to the first, we agree with plaintiffs that Voss’s awareness of the business interruption limits of $75,000 and $30,000 during the relevant policy years does not defeat her cause of action as a matter of law (see generally American Bldg. Supply Corp., 19 NY3d at 736-737). Plaintiffs’ claim, predicated on the alleged special relationship with CHI, is that CHI was negligent in failing to recommend higher limits and that plaintiffs relied on CHI in setting the allegedly deficient coverage amounts. Contrary to CHI’s assertion, it is wholly irrelevant whether plaintiffs were aware of the limits that were actually procured.

As to the second ground for dismissing the complaint, the Appellate Division majority concluded that any negligence on CHI’s part in failing to advise plaintiffs to procure more business interruption coverage was not the proximate cause of plaintiffs’ losses; rather, it was Netherlands’ failure to timely pay the claims. But questions of proximate cause and foreseeability should generally be resolved by the factfinder (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; see also Mirand v City of New York, 84 NY2d 44, 51 [1994] [“Proximate cause is a question of fact for the jury where varying inferences are possible”]).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the motion of defendant CH Insurance Brokerage Services, Co., Inc. for summary judgment denied.

Smith, J.

(dissenting). I agree with the majority that the case turns on the “special relationship” issue. I think, however, that the record conclusively establishes that any such relationship between plaintiffs and their insurance agent, CHI, had ceased to exist by the time of the events in question. Thus I would hold that the courts below properly granted summary judgment dismissing the complaint as against CHI.

As the majority acknowledges, an insurance agent is ordinarily under no duty to give its client advice on what insurance coverage is appropriate (Murphy v Kuhn, 90 NY2d 266, 270 [1997]; Hoff end & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152, 156-158 [2006]). An exception exists where there is a special relationship, but to establish such a relationship requires a “high level” of proof (Murphy, 90 NY2d at 271). Where the agent is not separately compensated for its advice, the insured must prove some “interaction” or “course of dealing” with the agent sufficient to show that the insured was relying on the agent’s expertise in choosing insurance (id. at 272).

Here, if the issue were whether Voss’s relationship with CHI was “special” at its inception in 2004, I would agree that summary judgment should be denied. According to plaintiff Deborah Voss’s testimony, CHI’s representative, Joe Convertino, obtained detailed information about Voss’s business and made a recommendation to her about what coverage to purchase. If that advice had been negligently given, and plaintiffs had suffered loss as a result, they might well have had a claim. But plaintiffs do not assert, and there is no evidence, that anything was wrong with the advice Convertino gave in 2004, or that plaintiffs suffered any loss while the policy they purchased in 2004 was in force.

It is true that, according to Voss, Convertino said in 2004 that CHI would continue giving her advice in future years, “as the business evolved.” It is quite clear from the record, however, that—to Voss’s frustration—that did not happen. The first of the losses at issue in this lawsuit took place in 2007. By then, the nature of Voss’s businesses had changed and she had moved them to a new location. She knew, according to her own testimony, that the coverage she had bought in 2004 might not be right for the new situation, and she wanted advice from CHI on what the new situation required, but she got none. Voss testified that she told another CHI representative, Carrie Allen, that she wanted CHI “to look at the business income the way they looked at it right from the start to give me adequate business coverage for the businesses that were operating, the same way Joe did”—but Allen never complied with the request. Thus plaintiffs clearly were not relying on advice from CHI at the time the insurance coverage that plaintiffs now complain of was acquired.

Plaintiffs seem to be contending in substance that they can sue CHI because it did not follow through on Convertino’s promise in 2004 to keep looking at and advising them about their insurance coverage. But CHI had no duty to follow through. It is not and could not be claimed that Convertino’s promise was legally binding. It would be different if plaintiffs had hired CHI to give advice and paid it for doing so; Murphy says that a “duty of advisement” may exist where “the agent receives compensation for consultation apart from payment of the premiums” (90 NY2d at 272). But there is no authority for finding a special relationship based on a gratuitous promise to consult, where no consultation takes place.

It is true that, if Voss has described the facts accurately, CHI should not get a high mark for client service. But its fault was simply in failing to do what we held in Murphy agents are not required to do: “to advise, guide or direct a client” in acquiring insurance coverage (90 NY2d at 273). Neither CHI’s provision of advice in 2004 nor its expression of willingness to do so in the future could create a continuing duty of the kind that Murphy makes clear does not ordinarily exist.

There are sound policy reasons for the narrow view that Murphy and our other cases take of an insurance agent’s duty to its client. Agents are not insurance companies and do not earn premium income. They earn, ordinarily, relatively modest commissions for bringing insurers and insureds together. It is natural for a client that has suffered a loss not covered by its insurance to blame its insurance agent; and if lawsuits by clients against their agents are welcomed by the courts, the consequence may be to make the agent into a kind of backup insurer, a result neither sensible nor fair. In this case, I think the majority has taken an unjustifiable step in that direction, and I therefore dissent.

Chief Judge Lippman and Judges Rivera and Abdus-Salaam concur with Judge Graffeo; Judge Smith dissents and votes to affirm in an opinion in which Judges Read and Pigott concur.

Order reversed, with costs, and defendant CH Insurance Brokerage Services, Co., Inc.’s motion for summary judgment denied.

      . The purpose of business interruption insurance
      “is to compensate an insured for losses stemming from an interruption of normal business operations due to damage or destruction of property from a covered hazard, thus preserving the continuity of the insured’s business earnings by placing the insured in the position that it would have occupied if there had been no interruption” (11 Steven Plitt et al., Couch on Insurance 3d § 167:9 [footnotes omitted]).

      . Voss shut down her other modeling agency some time before the 2006 move to the new building.

      . Apparently, there was water damage to both floors of the premises, causing closure of the restaurant business for two months.

      . According to plaintiffs, Netherlands has yet to make any business interruption payment for the third loss.

      . Plaintiffs’ claims against Netherlands and D.R. Casey remain pending and are not at issue on this appeal.

      . The dissent agrees that a special relationship may have begun in 2004 but concludes that, even if it did, it ceased to exist sometime before the placement of insurance for the time periods encompassing the three losses. In particular, the dissent cites an interaction between Voss and CHI’s Allen suggesting a breakdown of the relationship. But that conversation did not take place until 2007, during the renewal phase for the final relevant policy period, and we cannot agree that, on this record, the special relationship issue can be resolved against plaintiffs as a matter of law.


source: Caselaw Access Project

author: Pigott, J. Rivera, J.

license: Public Domain

text:
    [9 NE3d 870, 986 NYS2d 375]
    The People of the State of New York, Respondent, v Cheryl Santiago, Appellant.
    Argued January 15, 2014;
    decided February 25, 2014

      POINTS OF COUNSEL

      Malvina Nathanson, New York City, for appellant.
    I. The conviction must be reversed for lack of corroboration of the confession. (People v Roach, 215 NY 592; People v Lipsky, 57 NY2d 560; People v Cuozzo, 292 NY 85; People v Prado, 4 NY3d 725; People v Hines, 97 NY2d 56; People v Payne, 3 NY3d 266; People v Lane, 7 NY3d 888; People v Lytton, 257 NY 310; People v Reade, 13 NY2d 42; People v Jennings, 40 AD2d 357.) II. Even after redaction, letters written by appellant to a jailed inmate contained irrelevant and prejudicial material. (People v Scarola, 71 NY2d 769; People v Pobliner, 32 NY2d 356; People v Forchalle, 88 AD2d 645; People v Conyers, 52 NY2d 454; People v Santarelli, 49 NY2d 241; People v Ventimiglia, 52 NY2d 350; People v Ely, 68 NY2d 520; People v Byer, 89 AD3d 456; People v Bradley, 20 NY3d 128.) III. Appellant was denied effective assistance of counsel when counsel, by not objecting or making appropriate motions or argument, failed to protect her rights. (People v Baldi, 54 NY2d 137; Strickland v Washington, 466 US 668; People v Pobliner, 32 NY2d 356; People v Green, 183 AD2d 617; People v Thompson, 161 AD2d 236; People v Caruso, 246 NY 437; People v Fisher, 18 NY3d 964; People v Caban, 5 NY3d 143; People v Brown, 17 NY3d 742; People v Wlasiuk, 90 AD3d 1405.)

      Kirsten A. Rappleyea, District Attorney, Poughkeepsie, for respondent.
    I. This Court should not consider appellant’s argument that the People failed to introduce sufficient evidence to corroborate her confession since she did not properly preserve this issue in the court below. (People v Gray, 86 NY2d 10; People v Kolupa, 13 NY3d 786; People v Lane, 7 NY3d 888; People v Hines, 97 NY2d 56; People v Monroe, 49 AD3d 900; People v Prado, 4 NY3d 725.) II. Appellant’s confession was sufficiently corroborated pursuant to CPL 60.50. (People v Hamilton, 121 AD2d 395; People v Booden, 69 NY2d 185; People v Daniels, 37 NY2d 624; People v Safian, 46 NY2d 181; People v Cuozzo, 292 NY 85; People v Reade, 13 NY2d 42; People v Lipsky, 57 NY2d 560; People v Tinning, 142 AD2d 402; People v Hofmann, 238 AD2d 716.) III. This Court should not consider whether appellant’s letters, written to Michael Bryant, were properly received in evidence because appellant failed to preserve the alleged error in the court below. (People v Santarelli, 49 NY2d 241; People v Serrano, 256 AD2d 175; People v Harrell, 194 AD2d 502; People v Scarola, 71 NY2d 769; People v Pearce, 81 AD3d 856; People v Thomas, 17 NY3d 923; People v Sulayao, 58 AD3d 769, 12 NY3d 822; People v Leggett, 76 AD3d 860.) IV Appellant received the effective assistance of counsel. (People v Zaborski, 59 NY2d 863; People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137; People v Henry, 95 NY2d 563; Strickland v Washington, 466 US 668; People v Fisher, 18 NY3d 964; People v Turner, 5 NY3d 476; People v Pobliner, 32 NY2d 356; People v Wood, 79 NY2d 958; People v Tiro, 100 AD3d 663.)
   OPINION OF THE COURT

Pigott, J.

On this appeal, defendant Cheryl Santiago contends that her confession to the police following the death of her stepdaughter was insufficiently corroborated by independent evidence at trial to support her conviction of manslaughter in the second degree. Secondly, she argues that County Court abused its discretion in admitting certain letters into evidence that were not sufficiently redacted. Finally, she argues that she was denied effective assistance of counsel when her trial counsel failed to object to a PowerPoint display during the People’s summation. A recitation of the facts underlying defendant’s conviction is necessary to address each of these issues.

L

When defendant married Santos Santiago in January 2007, her husband had a one-year-old daughter, Justice, from a prior relationship. Santos and the child’s mother shared custody, Santos having physical custody on alternate weeks. The arrangement was not to defendant’s liking; she was described as somewhat aloof from the child and would complain to Santos that he spent too much time with his daughter. She concealed the child’s very existence from her parents. Santos worked long hours, and, as he later recalled, it particularly aggravated defendant that he would fall asleep during the process of putting his daughter to bed; after he awoke, he would tell defendant that he was too tired to spend time with her and would go back to sleep. In the fall of 2007, Santos, trying to appease defendant, asked her to start putting the child to bed.

On October 23, 2007, defendant and Santos quarreled over what can be described as defendant’s perception that the child’s presence interfered with their married life. The quarrel was described as intense enough that defendant went into the couple’s bedroom and remained there for two hours without speaking to Santos.

When it was time for the child to go to bed that evening, defendant took her into the bedroom where she slept, and lay down next to her. The child was babbling and resisting sleep. Later, defendant emerged from the bedroom and told Santos that the child was “dozing off.”

When defendant and Santos retired shortly after 11:00 p.m., Santos could see his daughter’s outline in her cot, but he did not approach the cot because he had woken his daughter in the past by doing so. Just after 5:00 a.m. the next morning, Santos awoke. He glanced over at the child as he prepared to leave the apartment, but saw nothing untoward. Santos noticed one unusual thing, however; unlike on other mornings, defendant got up to say goodbye to him and, when he left, double-locked the door behind him.

About 30 seconds after Santos left, he received a call from defendant on his cell phone, telling him Justice was not moving. Santos rushed back to the apartment, where he found his daughter’s lifeless body; rigor mortis had set in. A plastic bag lay near the child. Defendant told a grief-stricken Santos that she had removed the plastic bag from Justice’s hands. Santos called 911. An EMT arrived and confirmed that Justice was dead.

Defendant and Santos were interviewed separately. At first, defendant told the police that she had discovered the child, lifeless, and had found the plastic bag under her cheek. However, in a later statement to the police, given the evening of October 24, defendant made a confession. She told an investigator that the previous night she had become “frustrated” because she wanted the child to go to sleep, and placed her hands over the child’s mouth and nose for about 30 seconds, “to quiet her.” Defendant said that Justice had not struggled and she thought the child had fallen asleep. The next morning, according to defendant’s account, she checked on the child, found her cold and stiff, and panicked; she grabbed a plastic bag and placed it under the child’s mouth to make it appear that the bag had smothered her during the night. Defendant’s statement was reduced to a writing, which she reviewed, edited, and signed. Defendant also made a similar videotaped statement.

That day, an autopsy by Dr. Dennis Chute, Deputy Medical Examiner of Dutchess County, revealed that Justice had been a healthy child and ruled out death as a result of asthma or bronchial issues. Dr. Chute believed that the child had died the previous evening; after reviewing defendant’s statements, Dr. Chute completed his report, concluding that Justice had died of asphyxia resulting from suffocation.

II

Defendant was arrested and held at Dutchess County Jail. There, male and female prisoners were able to communicate through a fence separating their respective recreation yards, and by writing letters to one another. Defendant befriended an inmate named Michael Bryant, and they began a romantic correspondence. Some of defendant’s long letters to Bryant contained passages that were overtly sexual. According to Bryant, defendant, in a subsequent conversation, when asked about her criminal prosecution, admitted that she had killed Justice, saying “I did it, I did it.”

Meanwhile, defendant had been charged with murder in the second degree. At a Huntley hearing in County Court, defendant’s motion to suppress her statements was denied.

At defendant’s trial, the People proceeded on the theory that defendant had covered Justice’s mouth and nose for several minutes, with the intent to cause her death. Both Santos Santiago and Michael Bryant testified against defendant, the latter telling the jury of defendant’s prison yard admission. The jury also viewed the videotaped statement by defendant.

The People introduced defendant’s letters to Bryant on the ground that they showed that the relationship between the two inmates was one of mutual trust and confidence. Following objection by defense counsel that the letters were more prejudicertain passages that the court believed “could be viewed by the jury as unduly prejudicial as to the Defendant’s character or lifestyle.” Before the redacted letters were read to the jury, defense counsel renewed his objection. However, defense counsel did not single out any specific passages of a sexual nature as being prejudicial, or expressly ask for further passages to be excised after the first round of redactions. County Court denied defense counsel’s objection and defendant’s redacted letters to Bryant were read to the jury.

The jury also heard medical testimony. Dr. Chute, the coroner, testified that it would have taken four to six minutes for a child of Justice’s size and age to suffocate and that “if there was evidence that Justice’s mouth and nose were covered by a hand ... for up to four to six minutes,” that would “be consistent with [Dr. Chute’s] findings as to cause of death.” Several postmortem photographs of the child were admitted into evidence. Dr. Michael Baden, a board-certified pathologist, testified that a child of Justice’s age and size would pull away a loose object—such as a plastic bag in front of her face—that was obstructing her breathing.

After the People rested, defense counsel moved for dismissal on the ground, among others, that the People had failed to provide corroboration of the statements made by defendant to the police. County Court denied the motion.

Defendant then testified in her own defense. She insisted that her first statement to the police was true and that the subsequent statement in which she confessed to putting her hand over Justice’s mouth and nose was false. She also denied confessing her guilt to Bryant.

A board-certified pathologist, Dr. Jeffrey Hubbard, testified for the defense, stating that he could not determine the cause of Justice’s death with any reasonable degree of medical certainty.

When the defense rested, defense counsel did not renew his motion to dismiss on the ground of insufficient corroboration of defendant’s confession. Nor did defense counsel make a general motion to dismiss.

m.

During the People’s summation, the prosecutor—alluding to Dr. Chute’s discussion of the length of time it would have taken for a child of Justice’s age and size to suffocate—said to the jury: “[I]f there’s any question in your mind how long six minutes takes, take a look at this.” The jury was then shown, for a duration of six minutes, a PowerPoint presentation that consisted of a series of slides using a postmortem photograph of Justice. The slides changed at regular intervals, with each successive slide progressively fading, until the final slide was entirely white, thus eliminating the image of Justice. Some of the slides were accompanied by captions: “one and a half to two minutes, struggle ends,” “four minutes, brain death occurs,” and “four and a half to six minutes, cardiac death.” Defense counsel did not object to the slides.

In its jury charge, County Court gave the jurors the following limiting instruction concerning defendant’s letters to Bryant:

“The People want to offer these letters as evidence that the Defendant knew Michael Bryant and that her relationship with him was such that she would confide in him. That is the purpose for which I . . . allowed the letters into evidence. . . . The letters are not to be viewed by you with regards to the Defendant’s character or her [lifestyle]. The letters are to be viewed by you only for the purpose I’ve explained.”

County Court instructed the jury with respect to murder in the second degree, manslaughter in the second degree, and criminally negligent homicide. The jury found defendant guilty of murder in the second degree, and she was sentenced accordingly.

IV

The Appellate Division found that the jury verdict of second-degree murder was against the weight of the evidence, reasoning that although

“the evidence, properly weighed, proves beyond a reasonable doubt that the defendant placed her hand over the victim’s mouth and nose, and that this act caused the infant’s death, it does not prove beyond a reasonable doubt that it was her conscious objective to kill the infant victim . . . The evidence supports a finding that the defendant acted recklessly in covering the infant victim’s nose and mouth in a misguided effort to quiet the victim in order for her to sleep, but not as a part of a calculated effort to kill the infant victim” (97 AD3d 704, 706 [2d Dept 2012]).

However, the Appellate Division rejected defendant’s other challenges to her conviction, which included the contention that she had been denied the effective assistance of counsel. Consequently, the Appellate Division modified County Court’s judgment by reducing defendant’s murder conviction to a conviction of second-degree manslaughter and vacating the sentence, and affirmed the judgment as modified, remitting only for resentencing (id. at 706-707).

A Judge of this Court granted defendant leave to appeal (20 NY3d 935 [2012]). We now affirm.

V

Defendant initially argues that her confession to the police was not sufficiently corroborated by independent evidence at trial. In essence, defendant asserts that there is insufficient evidence that Justice’s death involved any criminal act.

Criminal Procedure Law § 60.50 provides: “A person may not be convicted of any offense solely upon evidence of a confession or admission made by him [or her] without additional proof that the offense charged has been committed.” We have reiterated that the required supplementary evidence, corroborating a confession, may be

“sufficient even though it fails to exclude every reasonable hypothesis save that of guilt. Indeed, the statute is satisfied by the production of some proof, of whatever weight, that a crime was committed by someone .... In final analysis, of course, the additional evidence of the crime together with the confession must be sufficient to establish defendant’s guilt beyond a reasonable doubt” (People v Lipsky, 57 NY2d 560, 571 [1982] [internal quotation marks and citations omitted; emphasis added]).

The rule, long-established, is that the additional evidence must be evidence that the charged crime was committed, and need not be evidence that the crime was committed by defendant (see id.; see also People v Cuozzo, 292 NY 85, 91-92 [1944]; People v Roach, 215 NY 592, 601 [1915]).

The People respond that defendant failed to preserve the corroboration argument. At the end of the People’s case, defense counsel moved to dismiss on the ground that defendant’s confession was not corroborated under CPL 60.50, but he did not renew the motion when the defense rested. The People cite our precedent that if a trial judge denies defendant’s motion to dismiss at the close of the People’s case, and the defendant does not renew his motion to dismiss after defendant has presented his case, defendant will be considered to have “waived review of the mid-trial decision” to deny the motion to dismiss (People v Hines, 97 NY2d 56, 61 [2001]; see also People v Kolupa, 13 NY3d 786, 787 [2009]; People v Lane, 7 NY3d 888, 889 [2006]; People v Payne, 3 NY3d 266, 273 [2004]).

For her part, defendant asks us to overrule Hines. In the alternative, defendant argues that defense counsel’s failure to renew his motion to dismiss based on insufficient corroboration of the confession amounts to ineffective assistance of counsel, either alone or in combination with other errors.

Contrary to defendant’s arguments, it is clear that a motion to dismiss on the ground of lack of corroboration would have been properly denied. There was independent evidence that a crime occurred, corroborating defendant’s confession. The jury heard testimony showing that Justice’s death by suffocation involved a human agent other than herself. In particular, Dr. Baden testified that Justice, a healthy child, would not have allowed herself to suffocate from a loose object such as a plastic hag obstructing her breathing, but, given her age and size, would have pushed it aside.

It follows that defendant’s failure to renew his motion to dismiss did not amount to ineffective assistance of counsel. We need not address defendant’s corroboration challenge further, or decide whether the Hines rule applies here.

VL

Defendant’s second challenge relates to the letters she wrote to Bryant in prison. She argues that County Court abused its discretion when it admitted in evidence overtly sexual portions of the letters.

Defense counsel attempted to persuade County Court that the letters in general were prejudicial and not probative, and he renewed this objection, with no success, before the letters were read to the jury. However, defense counsel did not single out the specific passages of a sexual nature that defendant now argues were wrongly admitted. Having achieved certain redactions, he did not ask for redaction of the sexual passages that defendant now argues were wrongly admitted. Hence defendant’s second challenge was not preserved for our review.

Again, defendant raises the alternative argument that the failure to preserve this issue constituted ineffective assistance of counsel. Under the circumstances, keeping in mind that defendant succeeded in achieving certain redactions as well as a proper limiting instruction that the jury must be presumed to have obeyed (see e.g. People v Morris, 21 NY3d 588, 598 [2013]; People v Davis, 58 NY2d 1102, 1104 [1983]), we cannot conclude defense counsel provided less than meaningful representation with respect to the issue of the letters (see generally People v Baldi, 54 NY2d 137, 147 [1981]). Moreover, given the limiting instruction, the result of defendant’s appeal would not have been different had defense counsel preserved the issue by asking for further redactions (see generally Strickland v Washington, 466 US 668, 694 [1984]).

VII.

The final issue is whether defense counsel was ineffective for not objecting to the People’s summation. Defendant contends that the prosecutor’s use of slides had no purpose other than to engender a feeling of horror and were no part of any legitimate argument. She argues that defense counsel’s failure to object was, on its own, so egregious and prejudicial a failing as to deprive her of effective assistance of counsel.

In summation, “counsel is to be afforded ‘the widest latitude by way of comment, denunciation or appeal in advocating his cause’ ” (People v Ashwal, 39 NY2d 105, 109 [1976], quoting Williams v Brooklyn El. R.R. Co., 126 NY 96, 103 [1891]), though within limits that are principally those of relevance (see Ashwal, 39 NY2d at 109-110). Had defense counsel objected, the trial court would have had the opportunity to decide whether the challenged aspect of the PowerPoint presentation constituted “a fair comment on the evidence” or was instead “totally irrelevant to any legitimate issue presented at the trial” (Ashwal, 39 NY2d at 110; see e.g. People v Green, 183 AD2d 617, 618 [1st Dept 1992]).

Whether the trial court would have been required by the law to sustain an objection to the entirety of the PowerPoint presentation is not clear from this record. The People contend that the presentation of the photograph, for a duration of six minutes, during which time captions illustrating points of medical testimony were also displayed, was relevant to the testimony heard by the jury that it would have taken up to six minutes for Justice to die of suffocation. Defendant does not dispute that the postmortem photograph itself was properly admitted at trial (see People v Pobliner, 32 NY2d 356, 369 [1973]). The slides depicting an already admitted photograph, with captions accurately tracking prior medical testimony, might reasonably be regarded as relevant and fair, albeit dramatic, commentary on the medical evidence, and not simply an appeal to the jury’s emotions. The jury was being asked to decide not only whether defendant killed Justice, but also whether she intended to do so, an issue to which the question of how long she would have had to cover Justice’s mouth and nose was certainly relevant. On the other hand, the relevance of the visual device whereby the postmortem picture faded at 30-second intervals over a six-minute period—with each slide fading more and more to white, and the final slide appearing totally white—is difficult to discern. This did not show how Justice’s death occurred nor would it have aided the jury in its fact-finding function.

If the issue had been preserved for our review by timely objection—and had the trial court ruled against defendant and the issue reached our Court—this Court would have had the opportunity to decide whether the trial court abused its discretion and the error required a reversal of the judgment of conviction. But that did not occur and the objection to the PowerPoint presentation that defendant now raises is not so “clear-cut” or “dispositive” an argument that its omission amounted to ineffective assistance of counsel (see People v Howard, 22 NY3d 388, 400 [2013]; People v Turner, 5 NY3d 476, 481 [2005]).

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

Rivera, J.

(dissenting). Defense counsel’s failure to object to the prosecutor’s use during summation of a PowerPoint presentation that manipulated the evidence, and was designed to inflame the passion of the jury in order to engender prejudice against the defendant, constitutes an error of the type that so tainted the jury’s deliberative process as to deny defendant a fair trial. Given the egregious nature of defense counsel’s error, I disagree with the majority’s conclusion that defendant received meaningful representation. Therefore, I dissent.

We have admonished that the prosecutor’s summation “should not seek to lead the jury away from the issues by drawing irrelevant and inflammatory conclusions which have a decided tendency to prejudice the jury against the defendant” (People v Ashwal, 39 NY2d 105, 110 [1976], citing People v Posner, 273 NY 184, 190 [1937]; see also People v Levan, 295 NY 26, 36 [1945]; People v Carborano, 301 NY 39, 42 [1950]; Berger v United States, 295 US 78 [1935]). Where a prosecutor’s summation “venture[s] well beyond the evidence and the bounds of fair comment,” a defendant is deprived of a fair trial (People v Riback, 13 NY3d 416, 421, 423 [2009]). Hence, “defense counsel’s failure to object to . . . [a] prosecutor’s egregiously improper departures during summation . . . deprive [s] [a] defendant of the right to effective assistance of counsel” (People v Fisher, 18 NY3d 964, 967 [2012], citing People v Baldi, 54 NY2d 137, 146-147 [1981]).

Summation “must stay within ‘the four corners of the evidence’ . . . and avoid irrelevant comments which have no bearing on any legitimate issue in the case” (Ashwal, 39 NY2d at 109, quoting Williams v Brooklyn El. R.R. Co., 126 NY 96, 103 [1891]). The purpose of summation is for counsel to argue to the factfinder, in the prosecutor’s case, a view of the evidence and the inferences to be drawn therefrom favorable to the People (see People v Smith, 16 NY3d 786, 787-788 [2011], citing Ashwal, 39 NY2d at 110, and Williams, 126 NY at 103), within proper bounds of discourse (3 Robert G. Bogle, Criminal Procedure in New York § 46:9 at 25 [2d ed 2008]; People v LaValle, 3 NY3d 88, 115-116 [2004], quoting People v Harris, 98 NY2d 452, 492 n 18 [2002]). Although this exercise in adversarial oratory need not be dispassionate in delivery, and counsel may choose to employ various linguistic and rhetorical devices, the prosecutor cannot redirect the factfinder’s deliberative process from the evidence by playing on emotion (see Fisher, 18 NY3d at 966, citing Ashwal, 39 NY2d at 109-110).

In determining whether the prosecutor has crossed the line of legitimate summation argument, we are guided by the evidence presented to the jury and the nature of commentary made during summation. Here, the prosecution argued in summation that defendant had a motive to kill and that she prevented the child from breathing for four-to-six minutes, the time the prosecution’s expert witnesses testified it would take for the child to die of asphyxiation. At the end of summation, the prosecutor presented the six-minute PowerPoint, which consisted of one photo of the dead child, converted to a series of slides altered by imposing a caption on each slide, referencing the passage of time in 30-second intervals. Each slide projected the image of the child fading slightly more with each 30-second interval, until eventually the child’s image disappeared and only a white screen remained.

The People argue that this attempt at a “real time” simulation of the child’s death by asphyxiation offered fair commentary on the evidence by illustrating the time it took for the child to die. This argument severely downplays the inflammatory nature of the PowerPoint, and is simply not borne out by the PowerPoint’s contents or the evidence presented to the jury. Any doubts as to the emotional responses engendered by the presentation are easily dispelled by viewing the slide show, wherein the picture of a 21-month-old child, in her pink pajamas, with white froth on her lips, her body prone and lifeless, is projected over and over, fading slightly with each slide, until all that remains is a white background and the memory of her tiny body. One simply cannot be but moved by this depiction.

At best, the PowerPoint was an inaccurate presentation of the moments leading up to the child’s death because the slide is a picture of her corpse, and as such is of no assistance to the jury’s understanding of the issues relevant to the jury’s fact-finding process related to causation or intent. If this were all one could say about the PowerPoint it might survive scrutiny. However, this is not all that can be said. For although the photograph of the child’s body was in evidence, and could have been referenced during summation, the slide show manipulated that actual photograph, depicting it seriatim until it faded to a white screen. It is questionable whether the faded versions of the photograph can even be considered to have been properly in evidence. The prosecutor’s use of this PowerPoint imagery was an impermissible attempt to secure a verdict based on emotion and repulsion for the defendant, rather than facts.

The People rely on People v Caldavado (78 AD3d 962 [2010]) and other cases permitting the use of a PowerPoint presentation in prosecutions involving shaken baby syndrome. However, these cases are distinguishable in that they sanctioned the use of a slide show to aid the jury in understanding the force necessary to cause death, as well as the mechanics and injuries associated with shaken baby syndrome (see Caldavado, 78 AD3d at 963; People v Sulayao, 58 AD3d 769, 770 [2009]; People v Mora, 57 AD3d 571, 572 [2008]). Here, the PowerPoint did not address a difficult technical or medical issue. A single photo of a dead child’s body, progressively fading into oblivion, depicted nothing unique about the time it took for the child to die of asphyxiation. It simply cannot be argued that jurors were unable to appreciate the difference between a few minutes—the time the prosecutor argued defendant took to kill the child— and 30 seconds—the time defendant alleged she covered the child’s mouth. Neither can the captions that accompanied several of the slides be considered fair commentary on the evidence. Indeed, they provided no commentary whatsoever, but merely reiterated the forensic testimony of the People’s experts regarding the points at which the child would have experienced successive phases of physical deterioration. As such, the captions served only to further dramatize the already flagrantly inappropriate emotional display.

With the ever increasing use of technology and ease with which evidence may be presented, even with minimal computer resources, we must be mindful of the impact of technology on events in the courtroom, and, most especially, on the criminal justice system. It is easy to view the use of certain technological devices in the courtroom as merely another way of presenting evidence. We cannot forget, however, that technology also serves as a powerful tool to communicate images and concepts in ways that engage the jury distinctly, and perhaps more effectively, than the spoken word. This is no less true during summation, when “any argument that drones on for 5 or 10 minutes on any one point, regardless of how effective its content is, will lose the jury” (Thomas A. Mauet, Trial Techniques 394 [8th ed 2010]). Visual aids are a welcome relief since “[b]y the end of the trial, jurors are looking for new and fresh ways of receiving evidence and arguments” (id.). The use of technology at the end of closing argument may be particularly powerful. As one commentator has noted, “[t]he right to the final word has a psychological impact that makes it a forensic prize” (Siegel, NY Prac § 397 at 692 [5th ed 2011]).

Counsel’s failure to object cannot be explained as merely tactical (Baldi, 54 NY2d at 146; see also People v Rivera, 71 NY2d 705, 708 [1988]; People v Satterfield, 66 NY2d 796, 799-800 [1985]). One is hard-pressed to imagine any benefit defendant could reasonably derive from allowing the People to proceed with the presentation. If an objection had been raised and sustained, defense counsel would have prevented the jury from viewing an undeniably powerful depiction of a dead child clothed in her pajamas, on the floor next to her bed, vulnerable, and helpless to save herself. The notion that defense counsel’s silence was designed to expose the weakness of the People’s evidence is utterly untenable; if anything, given the emotional nature of the case, it was all the more incumbent upon counsel to object to such a prejudicial appeal to the jury’s sympathies. Indeed, defense counsel was well aware of the impact that juror emotion could have on the outcome of the case when he stated in summation that it was “not easy” to find his client innocent in light of the fact that “there’s a child who’s dead” (appendix for defendant-appellant at A436).

Furthermore, while any defense counsel may be concerned about interrupting the prosecutor’s summation and as a consequence “look[ing] bad to the jury, or draw[ing] rebuke from the judge” (Fisher, 18 NY3d at 970 [Smith, J., dissenting]), the fact is that attorneys do object—defense counsel and prosecutors alike (see e.g. id. at 969 [noting that the prosecutor objected three times during the defendant’s summation]), and generally they must do so to preserve arguments regarding summation (compare Ashwal, 39 NY2d at 108-109 with LaValle, 3 NY3d at 116; see also majority op at 751). Here, there was no discernible strategic advantage in staying quiet when defense counsel was faced with the powerful imagery presented by the prosecutor.

The majority concedes that the PowerPoint failed to “aid[ ] the jury in its fact-finding function,” but, nevertheless, concludes that the objection to the PowerPoint was “not so ‘clear-cut’ or ‘dispositive’ ” (majority op at 751). I cannot agree that if, as the majority states, the summation fell below our standard for acceptable summation commentary, defense counsel’s objection would have been an exercise in futility. It is simply not a fair trial if the prosecution puts before the jury in summation a “horrid and gruesome” portrayal of the body of the child, where the PowerPoint “could only have served, under the circumstances of this case, to have aroused the passions and the resentment of the jury against defendant and to have kept it from fairly and objectively considering the issues before it” (People v Wood, 79 NY2d 958, 961 [1992, Titone, J., dissenting]).

Given the strong potential for the summation PowerPoint to engender an emotional response from the jury, and thereby detract from its duty to render a verdict based on the facts and evidence presented (see Ashwal, 39 NY2d at 109), defense counsel’s failure to object, constitutes ineffective assistance of counsel and denied defendant meaningful representation (Baldi, 54 NY2d at 146-147; see also People v Benevento, 91 NY2d 708, 712 [1998]; People v Hobot, 84 NY2d 1021, 1022 [1995]).

Judges Graffeo, Read, Smith and Abdus-Salaam concur with Judge Pigott; Judge Rivera dissents and votes to reverse in an opinion in which Chief Judge Lippman concurs.

Order affirmed.

       We have carved out an exception to the Hines rule, applicable when the defendant makes a general motion to dismiss sifter the close of his proof. If, in such a case, the trial court makes “specific findings as to corroboration,” then we consider the question of corroboration to have been “expressly decided” by the trial court within the meaning of CPL 470.05 (2), even if defendant did not expressly move to dismiss on that ground (People v Prado, 4 NY3d 725, 726 [2004]). But Prado does not apply in this case, because defense counsel did not make a general motion to dismiss.

       It is true that a postmortem photograph of a victim is admissible “to prove or disprove some material fact in issue” (People v Pobliner, 32 NY2d 356, 369 [1973]), but “[p]hotographic evidence should be excluded ... if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant” (id. at 370, citing M. C. Dransfield, Annotation, Admissibility of Photograph of Corpse in Prosecution for Homicide or Civil Action for Causing Death, 73 ALR2d 769; People v Rial, 25 AD2d 28, 30 [4th Dept 1966]; People v Lewis, 7 AD2d 732, 732 [2d Dept 1958]). It is no less important during summation to avoid the use of enhanced photographic imagery and its prejudice to the defendant.


author: Chief Judge Lippman.

text:
    [9 NE3d 881, 986 NYS2d 386]
    The People of the State of New York, Appellant, v Angel Cintron, Respondent.
    Argued February 11, 2014;
    decided March 27, 2014

      POINTS OF COUNSEL

      Robert T Johnson, District Attorney, Bronx (Justin J. Braun and Joseph N Ferdenzi of counsel), for appellant.
    The Appellate Division’s decision erroneously establishes a rule that a People’s appeal must be dismissed if a court vacates a lawful sentence and imposes an illegal sentence that is completed before the appeal can be decided; it must, therefore, be reversed by this Court. (People v Williams, 14 NY3d 198; People v Lingle, 16 NY3d 621; People v Velez, 19 NY3d 642; People v Allen, 88 AD3d 735; Mountain View Coach Lines v Storms, 102 AD2d 663; United States v Wilson, 420 US 332; United States v DiFrancesco, 449 US 117; People v Minaya, 54 NY2d 360; People v Brown, 40 NY2d 381; People v Rodriguez, 18 NY3d 667.)

      Robert S. Dean, Center for Appellate Litigation, New York City (Mark W. Zeno of counsel), for respondent.
    Because respondent completed his sentence more than three years ago, and his direct appeal more than nine years ago, it would violate double jeopardy to add postrelease supervision to his sentence now, even though the Court erroneously vacated postrelease supervision from his sentence three years ago, and the People filed notice of appeal from that resentence. (People v Williams, 14 NY3d 198; People v Allen, 88 AD3d 735; People v Velez, 19 NY3d 642; People v Brinson, 21 NY3d 490; People v Lingle, 16 NY3d 621; United States v Martin Linen Supply Co., 430 US 564; United States v DiFrancesco, 449 US 117; Hill v United States ex rel. Wampler, 298 US 460; People v Rodriguez, 18 NY3d 667; People v Yannicelli, 40 NY2d 598.)
   OPINION OF THE COURT

Chief Judge Lippman.

This is yet another progeny of People v Catu (4 NY3d 242 [2005]). The primary issue on this People’s appeal is whether it constitutes double jeopardy for an appellate court to correct a defendant’s illegal sentence on direct appeal by imposing a term of postrelease supervision (PRS) after the defendant has completed the illegal sentence. We hold that, in the circumstances presented, it does not.

I

In June 2001, a jury found defendant guilty of robbery in the first degree, robbery in the third degree, and petit larceny. Supreme Court sentenced defendant to concurrent terms of imprisonment of 10 years for the first-degree robbery, 3V2 to 7 years for the third-degree robbery, and one year for the petit larceny. The court did not impose the mandatory term of PRS. Defendant appealed his conviction, and the Appellate Division affirmed (People v Cintron, 6 AD3d 338 [1st Dept 2004]).

Defendant then moved to vacate his conviction under CPL 440.10. Supreme Court denied the motion to vacate the conviction. The court nevertheless noted that defendant’s sentence was illegal because it did not include the mandatory term of PRS (see People v Sparber, 10 NY3d 457, 470-471 [2008]) and ordered that defendant be resentenced.

Defendant was conditionally released in May 2008. One month later, Supreme Court resentenced defendant to the original concurrent terms of imprisonment, as well as a five-year term of PRS. In October 2009, the maximum term of his prison sentence passed.

In 2010, we decided People v Williams (14 NY3d 198, 217 [2010]) and held that it constitutes double jeopardy to resentence a defendant and impose PRS after he completes his prison sentence and the direct appeal is over. Shortly thereafter, defendant moved under CPL 440.20 (1) to set aside his second sentence, arguing that the imposition of PRS constituted double jeopardy because he was out of prison on conditional release when it was imposed. Supreme Court granted defendant’s motion and again resentenced defendant, reimposing the terms of his completed initial sentence. The People appealed.

The Appellate Division dismissed the People’s appeal as academic (People v Cintron, 99 AD3d 439 [1st Dept 2012]). It observed that the Supreme Court’s grant of the CPL 440.20 motion was erroneous under People v Lingle (16 NY3d 621, 631 n 1 [2011]), which clarified that a defendant may be resentenced to a term of PRS while on conditional release. The Appellate Division nevertheless dismissed the appeal, concluding that under People v Velez (19 NY3d 642 [2012]) imposing PRS would constitute double jeopardy. It reasoned that defendant had acquired a reasonable expectation of finality in his sentence because he had served it in full upon Supreme Court’s vacatur and resentencing.

A Judge of this Court granted the People’s motion for leave to appeal (20 NY3d 985 [2012]).

II

The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution states that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” The United States Supreme Court has interpreted this language to provide three distinct protections: “(1) the right to be free from a second trial following an acquittal for the same crime; (2) the right to be free from a second trial following a conviction for the same offense; and (3) the right not to be punished more than once for the same crime” (Williams, 14 NY3d at 214, citing, inter alia, United States v DiFrancesco, 449 US 117, 129 [1980]). It is the final protection that is implicated in this case.

The protection against multiple punishments protects defendants from having their sentences increased once they have acquired “legitimate expectations of finality” therein (Williams, 14 NY3d at 214). We explained in Williams that a defendant may acquire a legitimate expectation of finality in an illegal sentence only once “the direct appeal has been completed (or the time to appeal has expired)” and the sentence has been served (id. at 217).

In Velez, we addressed whether a defendant acquired a legitimate expectation of finality in an illegal sentence where a resentencing proceeding had been instituted but the term of PRS had not yet been imposed prior to the expiration of the sentence. We held that the defendant still acquired a legitimate expectation of finality (19 NY3d at 650).

In this case, defendant has served his sentence, but the direct appeal of that sentence is not over; it presently is before us. Consequently, defendant has not acquired a legitimate expectation of finality in his sentence.

Defendant argues that Williams involved the appeal of a conviction and initial sentence, making it inapplicable to this case because defendant’s appeal of his conviction and initial sentence ended in 2004. We cannot accept this reading of Williams. That Williams involved the direct appeal of an initial sentence is not surprising. It is the rare case for a defendant to have had multiple resentencings. Thus, it is not instructive that Williams did not discuss the present remote contingency. Its logic applies equally here. Whether the People timely appeal an initial sentence or a sentence imposed at a resentencing, a defendant is equally on notice that the sentence may change and cannot acquire a legitimate expectation of finality.

Defendant argues in the alternative that Velez is dispositive of this case. He interprets Velez to mean that once a defendant has served his sentence, a court cannot impose PRS regardless of any pending judicial proceedings related to the defendant’s sentence. But there are important differences between an appeal, as here, and a resentencing, as in Velez. Appellate review is a fundamental component of the criminal justice system. A defendant cannot have a legitimate expectation of finality in an erroneous sentence that is subject to correction on appeal. There is no persuasive reason why the erroneous vacatur of defendant’s term of PRS should be immune from appellate correction.

Accordingly, the order of the Appellate Division should be reversed, defendant’s motion pursuant to CPL 440.20 to vacate his 2008 sentence denied, and that sentence reinstated.

Judges Graffeo, Read, Smith, Pigott, Rivera and AbdusSalaam concur.

Order reversed, defendant’s CPL 440.20 motion denied and defendant’s 2008 resentence reinstated.