author: Ciparick, J.

text:
    [898 NE2d 929, 869 NYS2d 886]
    Robert M. Morgenthau, as District Attorney of New York County, Appellant, v Avion Resources Ltd. et al., Respondents.
    Argued October 15, 2008;
    decided November 20, 2008

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney, New York City (Michael S. Morgan and Mark Dwyer of counsel), appellant pro se.
    I. The Appellate Division erred in holding that District Attorney Morgenthau was required to comply with both New York and Brazilian law to effect service of process upon defendants. (Milliken v Meyer, 311 US 457; Dobkin v Chapman, 21 NY2d 490; Kelly v Lewis, 220 AD2d 485; Franklin v Winard, 189 AD2d 717; Delagi v Volkswagenwerk AG of Wolfsburg, Germany, 29 NY2d 426; Public Adm’r of County of N.Y. v Royal Bank of Can., 19 NY2d 127; Frummer v Hilton Hotels Intl., 19 NY2d 533; Supreme Merchandising Co. v Kinzoku Co., 121 AD2d 193; Rio Props., Inc. v Rio Intl. Interlink, 284 F3d 1007; Umbenhauer v Woog, 969 F2d 25.) II. The Appellate Division erred in holding that service upon defendants in Brazil was not made in accordance with the Mutual Legal Assistance Treaty in Criminal Matters. (Matter of Commodity Futures Trading Commn. v Nahas, 738 F2d 487; Air France v Saks, 470 US 392; United States v Real Prop. Located at 22 Santa Barbara Dr., 264 F3d 860; United States v All Funds in Account Nos. 747.034/278, 141 F Supp 2d 548, 295 F3d 23; Societe Nationale Industrielle Aerospatiale v United States Dist. Court for Southern Dist. of Iowa, 482 US 522; Itel Containers Int’l Corp. v Huddleston, 507 US 60; Foster v Neilson, 2 Pet [27 US] 253; Long v State of New York, 7 NY3d 269.)

      Howrey LLP, New York City (James G. McCarney and Grace

      L. Chan of counsel), Bernard D’Orazio, P.C. (Bernard D’Orazio of counsel), Gleason & Koatz, LLP (John P. Gleason of counsel), and Busson & Sikorski )(Robert Sikorski and Berenice Busson of counsel), for respondents.
    This action was properly dismissed for insufficiency of service of process. (Hilton v Guyot, 159 US 113; Societe Nationale Industrielle Aerospatiale v United States Dist. Court for Southern Dist. of Iowa, 482 US 522; Byblos Bank Europe, S.A. v Sekerbank Turk Anonym Syrketi, 10 NY3d 243; Ings v Ferguson, 282 F2d 149; Persaud v Teaneck Nursing Ctr., 290 AD2d 350; Tadir Air v FGH Realty, 297 AD2d 230; Shinn v Catanzaro, 1 AD3d 195; Sam v Town of Rotterdam, 248 AD2d 850; 141 E. 47th St. Assoc. v ABR Mgt., 225 AD2d 341; Bingham v New York City Tr. Auth., 99 NY2d 355.)
   OPINION OF THE COURT

Ciparick, J.

In this civil forfeiture action, we are asked to determine whether service of process pursuant to CPLR 313 on defendants in a foreign country is sufficient to confer personal jurisdiction or whether one must additionally satisfy the service requirements of that foreign locale. Because compliance with CPLR 313 alone constitutes proper service upon foreign defendants where, as here, no treaties or international agreements supplant New York’s service requirements, and because principles of international comity do not mandate a different result, service was sufficient. Plaintiffs were not compelled to serve defendants in accordance with the service requirements of the foreign nation, Brazil, via letters rogatory.

I.

The genesis of this appeal is a forfeiture proceeding initiated by plaintiff, New York County District Attorney Robert M. Morgenthau, seeking to obtain proceeds of an allegedly illegal international money transfer scheme engaged in by defendant depositors, operating out of Brazil. Defendants allegedly transferred money from Brazil to a Manhattan bank in violation of Brazilian monetary regulations and New York banking laws. Many of the defendants were indicted by a New York County grand jury and charged with violating Banking Law § 650 (2) (b) (1). Along with these pending indictments, plaintiff instituted this CPLR article 13-A forfeiture proceeding in Supreme Court, seeking $636,924,865 in alleged proceeds and instrumentalities from the defendant depositors’ criminal, international banking activities (see CPLR 1311 [8]).

Before plaintiffs involvement in this matter, federal agents uncovered this alleged operation, which took place during a six-month period in 2002. Defendants utilized a money transfer station to transfer money from Brazil to the United States in violation of Brazilian currency laws. A bank employee in Manhattan received the money and set up parallel accounts at her bank. In 2002, after discovering these transfers and investigating the matter further, federal authorities obtained ex parte warrants from the United States District Court for the District of New Jersey, authorizing a seizure of just over $21 million, which had been deposited into the New York bank. The Government then transferred the funds to an undisclosed account within its control and obtained a criminal forfeiture order to freeze the money. Defendants moved in District Court to vacate that order. The court held that the Government had failed to demonstrate a rightful claim to the money and ordered that control of the funds be relinquished.

Subsequently, federal authorities approached District Attorney Morgenthau to ascertain his interest in proceeding with New York State prosecutions against defendants. On June 20, 2006, plaintiff commenced this civil forfeiture action pursuant to CPLR article 13-A and Supreme Court signed an ex parte temporary restraining order to freeze defendants’ assets. Later that day, plaintiff secured an order of attachment, also ex parte. In response, defendants claimed that plaintiff had failed to timely satisfy the order by failing to confirm it within five days as required by statute. Plaintiff then obtained a second order of attachment, claiming that any untimeliness in confirming the first order became moot. On August 8, 2006, Supreme Court vacated the June 20 attachment order, and thereafter defendants moved to quash the second order of attachment.

During July 2006, plaintiff served 14 individual defendants and representatives of five corporate defendants in Brazil. As for certain defendants who allegedly could not be reached by personal service, plaintiff served their respective attorneys pursuant to an August 10 order of Supreme Court, permitting the use of alternative service methods under CPLR 308 (5), 311 (b) and 313. After defendants were indicted, plaintiff allegedly served many of them by mailing the summons and complaint to their attorneys. Most of the remaining defendants were served personally in Brazil by Brazilian law enforcement officials under an agreement with local New York authorities. Four other individuals were served under New York service procedures pursuant to CPLR 308 (2) and (4) via “delivery and mail” or “nail and mail.” Because service on those four defendants was not completed in a timely fashion, they are not affected by our holding today.

On February 8, 2007, Supreme Court vacated the second attachment order, noting that at the time the order was issued the funds were located beyond the court’s jurisdiction, in New Jersey. Additionally, Supreme Court dismissed the complaint, concluding that plaintiffs service of process failed to comply both with service requirements prescribed by the Inter-American Convention on Letters Rogatory and the service requirements of Brazil, which utilizes only letters rogatory or a letter of request transmitted through diplomatic channels, and with principles of comity.

The Appellate Division affirmed, finding no abuse of discretion in Supreme Court’s decision to decline to confirm the attachment orders (49 AD3d 50 [2007]). The court further held that plaintiffs service procedures were improper because they did not comply with Brazilian law and failed to defer to principles of international comity. Finally, the court stated that plaintiff did not effectuate service in accordance with the Mutual Legal Assistance Treaty in Criminal Matters, because serving defendants by Brazilian law enforcement authorities under an informal agreement with New York law enforcement authorities did not comply with the treaty. The Appellate Division certified the following question: “Was the order of this Court, to the extent that it affirmed the order of the Supreme Court . . . properly made?” We answer that certified question in the negative and reinstate the complaint.

II.

Defendants argue that plaintiff’s service was improper because it offends notions of international comity and requirements of international treaties and Brazilian law that service in Brazil be made exclusively via letters rogatory. Plaintiff argues that he was not obligated to serve defendants by letters rogatory because service made under a means recognized by CPLR 313 complies with due process requirements and constitutes proper service upon defendants outside of this state—there being no treaty or international agreement requiring otherwise. Plaintiff further argues that principles of comity do not warrant the importation of another country’s service of process rules. We agree with plaintiff that service pursuant to CPLR 313 is sufficient.

We begin with the words of the statute:

“A person domiciled in the state or subject to the jurisdiction of the courts of the state under section 301 or 302, or his executor or administrator, may be served with the summons without the state, in the same manner as service is made within the state, by any person authorized to make service within the state who is a resident of the state or by any person authorized to make service by the laws of the state, territory, possession or country in which service is made or by any duly qualified attorney, solicitor, barrister, or equivalent in such jurisdiction” (CPLR 313).

“As a general proposition, we need not look further than the unambiguous language of the statute to discern its meaning” (Jones v Bill, 10 NY3d 550, 554 [2008]). In doing so, we look not only at what the statute requires, but also at what it does not require. Absent in the plain text is any requirement to fulfill a foreign locale’s service of process requirements in order to effectuate service in a New York action upon a defendant in another country.

As we stated in Dobkin v Chapman (21 NY2d 490, 501 [1968]), the words of CPLR 313 are “clear and unqualified; service may be made without the State ... ‘in the same manner as service is made within the state.’ ” This straightforward rule advances the statute’s purpose:

“[T]he joint report of the Senate and Assembly committees . . . noted, in so many words, that service outside of New York . . . could be effected ‘in any manner that is permitted within the state’ and that ‘[t]he permissive methods of service without the state have been increased in order to enhance the possibility of acquiring in personam jurisdiction over non-residents subject to our courts’ jurisdiction . . .’ (Fifth Preliminary Report, N. Y. Legis. Doc., 1961, No. 15, pp. 271-272)” (id. at 501).

CPLR 313, therefore, has both the intention and effect of “removing] state lines, and the plaintiff is to use the service methodologies of CPLR 308, 309, 310, 311, and 312-a, etc. wherever the defendant (or person authorized to accept service on defendant’s behalf) may be found” (Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 313, quoting Siegel, NY Prac § 100, at 168 [3d ed 1999] [internal quotation marks omitted]).

Neither do principles of comity compel a different result. The doctrine of comity “refers to the spirit of cooperation in which a domestic tribunal approaches the resolution of cases touching the laws and interests of other sovereign states” (Byblos Bank Europe, S.A. v Sekerbank Turk Anonym Syrketi, 10 NY3d 243, 247 [2008]). Whether to apply the doctrine lies in the sound discretion of the court (id.). We have typically analyzed the doctrine in the context of enforcement in New York of judgments issued by foreign countries under CPLR article 53 (see e.g. id.; Sung Hwan Co., Ltd. v Rite Aid Corp., 7 NY3d 78 [2006]). While we have, on occasion, addressed comity principles in cases where a party to New York litigation is asking a New York court to give effect to the laws of another jurisdiction (see e.g. Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65 [2006]), we have never applied the doctrine to import the laws of a foreign country into a New York lawsuit—and we decline to do so in this case.

Thus, we need not apply comity principles to service of process issues where the CPLR’s requirements of service upon foreign defendants are fulfilled, as they are here (see Banco do Commercio e Industria de Sao Paolo v Esusa Engenharia e Construcoes, 173 AD2d 340, 341 [1st Dept 1991] [because defendants admitted they were served with process in Brazil in accordance with the requirements of CPLR 308 by an officer of the court in Brazil, the motion for defective service failed]; Rio Props., Inc., 284 F3d at 1014 [service in compliance with the federal rules is not invalidated even if it is made in a foreign country where such service is not utilized]; Umbenhauer v Woog, 969 F2d 25, 32-33 [3d Cir 1992] [same]). Thus, comity is not an additional hurdle for a plaintiff to overcome in serving a party in a foreign country, and defendants’ claim that plaintiff should have complied with Brazilian law, which requires that service of process by a foreign party upon a party domiciled in Brazil must be made by letters rogatory, is without merit. A New York court’s ability to exercise personal jurisdiction over a Brazilian domiciliary, where service is made in accordance with the CPLR, should not be so limited.

Where there exists a treaty requiring a specific form of service of process such as the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention), that treaty, of course, is the supreme law of the land and its service requirements are mandatory (see US Const, art VI, cl 2; Volkswagenwerk Aktiengesellschaft v Schlunk, 486 US 694 [1988]). But the Hague Service Convention is not implicated in connection with service on the Brazilian nationals because Brazil is not a signatory to that convention.

Both the United States and Brazil are signatories to the Inter-American Convention on Letters Rogatory (reprinted following 28 USCA § 1781). Article 2 of that treaty does not mandate, however, that letters rogatory be the exclusive means of service on a party in Brazil. As stated in Kreimerman v Casa Veerkamp, S.A. de C.V. (22 F3d 634, 640-642 [5th Cir 1994]):

“[N]othing in the language of the Convention expressly reflects an intention to supplant all alternative methods of service. Rather, the Convention appears solely to govern the delivery of letters rogatory among the signatory States . . .
“[T]he text of the Convention strongly indicates, not that the Convention preempts other conceivable methods of service, but that it merely provides a mechanism for transmitting and delivering letters rogatory when and if parties elect to use that mechanism.”

Consequently, the Letters Rogatory Convention allows for service of process pursuant to a state statute (see Laino v Cuprum S.A. de C.V., 235 AD2d 25, 29 [2d Dept 1997]). Here, that statute is CPLR 313.

Since a New York plaintiff need not comply with foreign law absent a treaty, we must lastly consider whether defendants were properly served under New York law. Individual defendants were served in Brazil under CPLR 313 and 308 (1), or they were served through their lawyers under alternative service pursuant to CPLR 308 (5). Plaintiff served corporate defendants by personal delivery to an authorized representative in Brazil under CPLR 311 (a) (1), or through their lawyers under the alternate service order pursuant to CPLR 311 (b). We thus conclude that all due process requirements were met and proper service upon defendants, save the four served pursuant to CPLR 308 (2) and (4), was effected. Consequently, that portion of the Appellate Division decision that affirmed Supreme Court’s dismissal of the forfeiture action should be reversed.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be modified, with costs to plaintiff, by reinstating the complaint and, as so modified, affirmed, and the certified question answered in the negative.

Chief Judge Kaye and Judges Graffeo, Read, Smith, Pigott and Jones concur.

Order, insofar as appealed from, modified, etc.

      . Simultaneously, the Brazilian government is investigating and prosecuting many of the defendants for violations of its laws. According to plaintiff, each of the individual defendants has been arrested and charged in Brazil.

      . Money transfer stations in Brazil are known as “casas de cambio” or “doleiros.”

      . The bank employee was arrested, charged and ultimately pleaded guilty in United States District Court for the District of New Jersey to charges pertaining to the filing of false tax returns and operating a money transfer operation without proper licensing. As part of the plea agreement, she forfeited any interest, title or right to the seized proceeds.

      . On June 20, 2006, plaintiff served the attachment order upon the New York City office of the United States Department of Homeland Security, Customs and Border Patrol Service, who then transferred $17.7 million to a bank under plaintiffs control.

      . Several corporate defendants incorporated in the British Virgin Islands were apparently served in their corporate capacity, as authorized representatives or agents in Brazil.

      . The court did not reach the validity of service of process by plaintiff pursuant to the CPLR.

      . The Appellate Division, in the same order, also dismissed an appeal from a Supreme Court order denying plaintiffs ex parte application to file affidavits of service out of time and have them deemed timely filed, nunc pro tunc. This part of the Appellate Division order is not within the scope of the certified question and is not before us.

      . In May 2008, during the pendency of this appeal, the United States District Court for the District of Columbia ordered plaintiff to transfer the seized money to federal authorities pursuant to a request from the Brazilian government. Abiding by that order, plaintiff transferred all the money he had under his control to the federal authorities, where it remains. Thus, the issue relating to the validity of the attachment order has been mooted, but the service of process issue remains ripe for disposition.

      . Rule 4 (f) (3) of the Federal Rules of Civil Procedure is in accord with CPLR 313, permitting a foreign defendant to he served by any method of court-ordered service, provided that the method of service is not prohibited by international agreement (see Rio Props., Inc. v Rio Intl. Interlink, 284 F3d 1007 [9th Cir 2002]).

      . Plaintiff argues alternatively that he complied with Brazilian service laws by serving defendants in Brazil under an informal agreement he maintained with Brazilian law enforcement authorities, pursuant to the Mutual Legal Assistance Treaty in Criminal Matters, to which the United States and Brazil are both signatories. We need not reach this issue.

      . Although not argued by either party in Supreme Court and held to be unpreserved by the Appellate Division, it is alleged that those corporate defendants incorporated in the British Virgin Islands were served in conformity with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, a treaty to which the United States and the British Virgin Islands are signatories.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    [899 NE2d 941, 870 NYS2d 835]
    White House Manor, Ltd., Respondent, v Rose Ellen Benjamin et al., Respondents. Korean Presbyterian Church, Nonparty Appellant.
    Argued September 10, 2008;
    decided November 20, 2008

      POINTS OF COUNSEL

      Hughes Hubbard & Reed LLP, New York City (James C. Fitzpatrick, George A. Davidson, Nathan I. Nahm and Lewis D. Zirogiannis of counsel), for appellant.
    I. A judgment against a nonparty on an unpleaded cause of action brought by an improper cross motion should be reversed as not in accordance with the law. (Mango v Long Is. Jewish-Hillside Med. Ctr., 123 AD2d 843; Matter of Jetter, 78 NY 601; Teitelbaum Holdings v Gold, 48 NY2d 51; Barzack Realty Co. v Legatti & Son, 114 Misc 2d 245; Johnson v Hunte, 8 Misc 3d 133[A], 2005 NY Slip Op 51160[U]). II. The judgment should be reversed because the irregular procedure violated due process. (Murray v Hoboken Land & Improvement Co., 18 How [59 US] 272; Carey v Piphus, 435 US 247; Mathews v Eldridge, 424 US 319; Fuentes v Shevin, 407 US 67; Skyline Agency v Coppotelli, Inc., 117 AD2d 135; Mullane v Central Hanover Bank & Trust Co., 339 US 306; Duckett v Ward, 458 F Supp 624; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Gray v Pashkow, 79 NY2d 930.)

      Law Offices of Annette G. Hasapidis, South Salem (Annette G. Hasapidis of counsel), for respondents.
    I. Korean Presbyterian Church failed to preserve its objection to the alleged lack of jurisdiction when it executed a settlement stipulation that did not limit the court’s jurisdiction over the parties or the underlying contract. (Merrill v Albany Med. Ctr. Hosp., 71 NY2d 990; Sam & Mary Hous. Corp. v Jo/Sal Mkt. Corp., 62 NY2d 941; Guaspari v Gorsky, 29 NY2d 891.) II. The motion court had jurisdiction to rule that Korean Presbyterian Church breached the stipulation and the contract because the church was a party to the stipulation, which modified the underlying contract. The church waived any objection by accepting the benefits of the stipulation for years. The church’s remaining due process claims are unique procedural circumstances of the church’s own making which did not violate its due process rights. (Sheehan v Marshall, 9 AD3d 403; Kleeberg v City of New York, 305 AD2d 549; Volpe v Canfield, 237 AD2d 282; Beal Sav. Bank v Sommer, 8 NY3d 318; Matter of Westmoreland Coal Co. v Entech, Inc., 100 NY2d 352; Wynkoop Hollenbeck Crawford Co. v Western Union Tel. Co., 268 NY 108; Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169; Beacon Term. Corp. v Chemprene, Inc., 75 AD2d 350, 51 NY2d 706; Cortesi v R & D Constr. Corp., 73 NY2d 836; Walker v Millard, 29 NY 375.)
   OPINION OF THE COURT

Read, J.

In 1987, plaintiff White House Manor, Ltd. purchased 3.43 acres of undeveloped property in the Town of Greenburgh, Westchester County, from Travis Levy, and executed a mortgage on it. The mortgage was subsequently assigned to defendants Rose Ellen Benjamin, Joan C. Levy, and Jerald Jay Levy (the Levys). White House also purchased two neighboring parcels in 1987, and in 1990, obtained town approval to subdivide all three parcels into six lots, five of which were sold as building lots. White House intended to subdivide the remaining lot (8.03 acres), which contained the former Levy property and parts of the two other parcels, which were deemed merged as a matter of law. This lot received a new, single tax map designation, and is known as 1952 Saw Mill River Road, Elmsford, New York. When White House failed to fulfill certain requirements, however, the Town’s final approval for subdivision of the 8.03-acre lot expired as a matter of law.

After defaulting on its mortgage payments to the Levys, White House deeded the Levys’ former property back to them in June 1995 in lieu of foreclosure. Consequently, the Levys owned 3.43 acres of the larger 8.03-acre lot, while White House owned the remainder (4.6 acres). Since no separate tax assessment existed against the Levys’ interest, White House continued to pay the real property taxes levied against the entire parcel.

The Town advised the Levys that the 8.03-acre lot needed to be subdivided in order for them to sell or build on their portion of it, and that subdivision approval would require sewer improvements, which the Levys discovered were costly. They therefore decided to market their property upon condition that the prospective purchaser would have to pay for severing the 3.43 acres, and obtaining any site plan approvals necessary for the purchaser’s intended use.

In June 1999, White House commenced this unjust enrichment action against the Levys to recover their pro rata share of the real property taxes that White House had been paying on the 8.03-acre lot. In September 1999, the Levys answered and counterclaimed against White House, seeking contribution to subdivision costs.

Meanwhile, by a contract of sale dated August 6, 1999, Korean Presbyterian Church of Westchester purchased the 3.43 acres from the Levys for $380,000, making a $38,000 down payment into escrow. The sale was contingent upon the Church’s securing any required government approvals—in particular, subdivision and site plan approvals from the Town and a road access permit from the New York State Department of Transportation—at its own expense. Further, paragraph “fourteenth” of the August 1999 purchase contract provided that

“[i]n the event the requisite approvals are not obtained . . . within six months from the date of receipt by [the Church] of a fully executed contracts the Church] shall have the option of extending the approval period for an additional six (6) months after receipt by [the Church] of a fully executed contract and continuing each month thereafter until said approvals are obtained and the closing of title herein has occurred. In the event the [Church’s] applications are denied or [the Church] determines from the approving boardsf] memoranda and/or minutes that said approvals will not be granted, [the Church] shall forward documentation to [the Levys’] attorney confirming this denial, whereupon the down[ ] payment shall be promptly returned to [the Church], but not the . . . $2,000.00 monthly fee which shall be non[-]refundable. Said $2,000.00 fee is not a part of nor a credit against the Purchase Price herein. If said approvals are not obtained within one (1) year from the date of receipt by [the Church] of a fully executed contract, despite [the Church’s] diligent efforts to obtain same, then either [the Levys] or [the Church] shall have the right to terminate this contract. In the event of such termination, the aforesaid down[ ] payment shall be promptly returned to [the Church], but not the $2,000.00 monthly fee, which, as previously stated, shall be non-refundable.”

The Church, which got caught up in a three-year building moratorium, did not timely obtain the necessary approvals from the Town. Accordingly, by an agreement dated May 1, 2003, the Church and the Levys amended the August 1999 purchase contract, modifying paragraph “fourteenth” to extend the option period until the earlier of January 31, 2004, or the closing of title on condition that the Church make “current the option payments due and owing . . . and continue to make the requisite [$2,000] option payments.” Further, the parties modified paragraph “eleventh” to make the Church’s obligation to close title contingent upon obtaining subdivision approval only. Finally, the Church agreed to pay the Levys’ “pro rata portion of real estate taxes for [the 8.03-acre parcel] commencing with the Town Tax due on April 30, 2003 and [to] be responsible for payment of such pro rata portions from the date hereof to the date of closing” (emphasis added).

Shortly after the Church and the Levys amended the purchase contract, White House, the Levys and the Church executed a “Stipulation of Settlement” to “settle” the unjust enrichment action. The stipulation, dated May 20, 2003 and “so ordered” by Supreme Court on June 4, 2003, stated that “on August 7 [szc], 1999, [the Levys] entered into a Contract of Sale to sell [their] portion of the subject premises to the [Church], which Contract has been amended by Agreement dated May 1st, 2003”; and further, “the [Church], as Contract Vendee, has a vital interest in the outcome of the instant litigation and has agreed to be a party to the instant Stipulation” (emphasis added). The stipulation did not incorporate into its provisions the terms of the August 1999 purchase contract or the May 2003 amendment of it.

The stipulation went on to provide that “it [was] hereby stipulated and agreed that the above captioned action is settled as follows,” specifying that

“Commencing on or before April 30, 2003, the [Church] shall remit monies directly to [White House’s former attorney] for [the Levys’] pro rata share of the real estate taxes for the year 2003 until the sooner of the closing of title pursuant to the aforementioned Contract[ ] of Sale, as amended and extended, the completion of the sub-division currently pending . . . , or the termination of that Contract of Sale by the terms thereof due to the default of either [the Levys] or [the Church]” (emphasis added).

The Levys further acknowledged that “they [would] ... be responsible for their pro rata share of the real estate taxes in the event the closing of title envisioned above [did] not occur and the conditions of sale aforementioned [were] cancelled.” For its part, White House waived any objection to the Church’s pending subdivision application; and the Levys and the Church “waive[d] any objections they might otherwise have to any subdivision application . . . brought regarding the subject premises” by White House.

The Church subsequently requested, and apparently obtained, additional extensions of the purchase contract, claiming at one point that it had reached “the final stage” of town approval, and cautioning that “[i]f [the Levys] switched] to a different buyer, they [would] start from scratch with the Town.” In January 2005, however, the Church stopped making the $2,000 monthly option payments, and on March 28, 2005, the Levys complained to the Church. The Levys claim that, at about the same time, they discovered that the Church had not done anything to advance its subdivision or site plan applications for several months.

On March 31, 2005, the Church purportedly terminated the contract of sale pursuant to paragraph “fourteenth” of the 1999 purchase contract, and demanded the return of its down payment. On April 4, 2005, the Levys rejected the Church’s action. They took the position that the Church would be in “willful default” under the purchase contract, the amendment and the stipulation if it ceased to seek subdivision approval from the Town. The Levys apparently wrote the Church again on June 21, 2005, advising that they considered the Church to be in default.

Presumably because of the contract dispute between the Levys and the Church, neither of them paid the Levys’ pro rata share of the real property taxes. This prompted White House to move by order to show cause, within its unjust enrichment action, to enforce the stipulation against the Levys and the Church. The Levys “cross-moved” within that action for a declaration that the Church was in default of the purchase contract, the amendment and the stipulation, and for concomitant relief.

In an order entered on February 7, 2006, Supreme Court granted the motion and the “cross motion.” Judgment was entered (1) declaring the Church in default of the purchase contract, the amendment and the stipulation; (2) decreeing that the Church forfeited the down payment; (3) ordering the Church to turn over to the Levys all reports, studies, plans, maps and investigations completed in pursuit of the subdivision and site plan approvals; (4) ordering the Church to turn over to the Levys all engineering plans and confirm that all engineering and survey costs had been paid; (5) ordering the Church to pay the cost of a steep slope analysis necessary to complete the subdivision application; (6) ordering the Church to pay all municipal fees and costs required to complete the subdivision ap- • plication; (7) ordering the Church to designate Jerald Jay Levy as authorized to complete the subdivision application; (8) ordering “[the Church to] pay to [White House] the share of [the Church] of 2005 and any future county and town taxes” (emphasis added); (9) ordering “[the Church to] pay to [White House] the share of [the Church] of 2005/2006 and any future school taxes” (emphasis added); and (10) awarding the Levys $29,365 for missed option payments and interest thereon, $4,321.50 for the Church’s share of the 2004/2005 county and town taxes and interest thereon, and $4,911.08 for the Church’s share of the 2004/2005 school taxes and interest thereon. Supreme Court subsequently granted the Church’s motion for reargument, but adhered to its decision.

The Church appealed, and in a decision dated July 10, 2007, the Appellate Division described the Church’s appeal as follows:

“In an action ... to recover damages for unjust enrichment, nonparty [the Church] appeals, as limited by its brief, from so much of [Supreme Court’s March 2006 judgment], as, upon [Supreme Court’s February 2006 order], inter alia, granting the cross motion [of the Levys], among other things, in effect, for summary judgment declaring that [the Church] breached a contract for the sale of real property dated August 6, 1999, as amended May 4 [sic], 2003, and a stipulation of settlement dated June 4, 2003, is in favor of the [Levys], and against it declaring that [the Church] breached the contract for the sale of real property dated August 6, 1999, as amended May 1, 2003, and the stipulation of settlement dated June 4, 2003” (White House Manor, Ltd. v Benjamin, 42 AD3d 450, 450 [2d Dept 2007] [emphasis added]).

The Appellate Division “affirmed insofar as appealed from” (id.), concluding that

“contrary to the [Church’s] contention, . . . Supreme Court properly exercised its jurisdiction to enforce the terms of the subject stipulation of settlement to which the [Church] was a signatory. The [Church’s] status as a nonparty contract vendee did not require the parties to seek enforcement of the settlement by plenary action” (id. at 451).

We subsequently granted the Church’s motion for leave to appeal, and now reverse.

The mandates of CPLR 3212 were not satisfied in this case, and Supreme Court’s order was thus not a proper award of summary judgment pursuant to article 32 of the CPLR. CPLR 3212 (a), titled “Time; kind of action,” states that “Any party may move for summary judgment in any action, after issue has been joined.” Here, however, it does not appear that any party moved for summary judgment under CPLR 3212 and, more critically, issue was never joined by the Church. No matter how the Appellate Division described Supreme Court’s judgment, there is simply no way that Supreme Court could have granted summary judgment against the Church.

But then Supreme Court never purported to do so; it simply granted various measures of relief without any citation to legal authority, statutory or otherwise. Given the presence of a “so-ordered” stipulation bringing the Church into this lawsuit in the first place, however, the only possible legal basis for Supreme Court’s order was “[t]he power of a trial court to exercise supervisory control over all phases of pending actions and proceedings . . . [including] discretionary power to relieve parties from the consequences of a stipulation effected during litigation” (Teitelbaum Holdings v Gold, 48 NY2d 51, 54 [1979] [citation omitted]). Because the inherent authority described in Teitelbaum extends only to the enforcement of a stipulation within a pending action or proceeding, it is necessary to map out the boundaries of the stipulation in this case.

As an initial matter, the original unjust enrichment action brought by White House against the Levys concerned only the pro rata division of real property taxes between those parties. Critically, however, the Church expressly agreed to make itself a party to the stipulation settling this property tax dispute. The Church not only signed the stipulation, but also appeared at Supreme Court proceedings regarding the stipulation and agreed, pursuant to the stipulation itself, that the Church “ha[d] a vital interest in the outcome of the instant litigation and ha[d] agreed to be a party to the instant Stipulation.” Insofar as the “cross-motion” in this case was actually brought merely to enforce the stipulation, the Church should be considered a party pursuant to Teitelbaum. Similarly, since the Church was given notice and an opportunity to appear (and, indeed, availed itself of that opportunity) in proceedings regarding the stipulation, any relief directed merely toward enforcement of the stipulation does not offend the Church’s due process rights.

In sum, to the extent that Supreme Court’s order enforced the terms of the stipulation against the Church, this was proper under Teitelbaum. In the stipulation, the Church agreed to pay the Levys’ pro rata share of real property taxes to plaintiffs former attorney until the soonest of (1) the closing of the purchase contract, (2) subdivision of the 8.03-acre tax parcel, or (3) termination of the purchase contract due to the default of either the Levys or the Church. The appealed-from judgment says that “[the Church] is in default pursuant to the terms of the Contract of Sale dated August 6, 1999, the Amendment thereto dated May 1, 2003 and the [stipulation] dated . . . June 4, 2003” (emphasis added), without specifying when or how any default may have occurred. To the extent that the judgment directs the Church to pay the Levys’ pro rata share of property taxes after termination of the contract under this provision of the stipulation, it is erroneous. Insofar as differences remain between the Levys and the Church over the Church’s obligation to pay real estate taxes, those differences should be resolved by Supreme Court on remittal. But since Supreme Court only had the power under Teitelbaum to enforce the stipulation, so much of its judgment as ordered remedies against the Church for its purported breach of the purchase contract and its amendment is inappropriate. If the Levys desire to pursue a claim against the Church for breach of contract, they will have to commence a plenary action by filing a summons and complaint (see CPLR 304), after which the Church would have at least 20 days to answer (see CPLR 320). Then, after issue is joined, the Levys may move for summary judgment if they believe there are no material disputed issues of fact to be resolved (see CPLR 3212). The stipulation in the unjust enrichment action does not afford the Levys a way to bypass these procedural steps, or a portmanteau for all their claims against the Church.

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

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

Order reversed, etc.

      . Both Rose Ellen Benjamin and Joan C. Levy died during the pendency of this proceeding. Georgia Sassen, as trustee under the trust agreement of Rose Ellen Benjamin, and Karen J. Levy, as the personal representative of Joan C. Levy’s estate, have been substituted as parties defendant.

      . Both parties originally interpreted the judgment to make the Church liable for property taxes prospectively, either without end (according to the Church), or until the Levys completed the subdivision process (according to the Levys). The Levys now contend that the Church defaulted in March 2005 and is liable for property taxes through March 31, 2005; the Church disputes that it defaulted at all, and takes the position that its obligation to pay the Levys’ pro rata share of the property taxes ended in January 2005 when it terminated the 1999 purchase contract under paragraph “FOURTEENTH” by ceasing to make option payments.


author: Graffeo, J.

text:
    [900 NE2d 915, 872 NYS2d 364]
    The People of the State of New York, Respondent, v Sheldon Ennis, Appellant.
    Argued October 15, 2008;
    decided November 20, 2008

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Richard M. Greenberg of counsel), for appellant.
    I. Defense counsel’s conflict of interest deprived Sheldon Ennis of his constitutional right to the effective assistance of counsel where, as a result of that conflict, defense counsel failed to act on exculpatory evidence that could have resulted in a new trial, established Mr. Ennis’s innocence in the shooting of Billy Moody, and altered Mr. Ennis’s defense to the remaining charges in the case. (People v Berroa, 99 NY2d 134; People v Longtin, 92 NY2d 640; People v Ortiz, 76 NY2d 652; People v McDonald, 68 NY2d 1; United States v Kliti, 156 F3d 150; United States v Levy, 25 F3d 146; Cuyler v Sullivan, 446 US 335; People v Alicea, 61 NY2d 23;
      People v Brensic, 70 NY2d 9; People v Settles, 46 NY2d 154.) II. Where defense counsel failed to timely raise a meritorious motion for a mistrial and severance based on his discovery of Brady material that the prosecution had never disclosed, and where defense counsel’s failure was not the result of a legitimate strategic decision, Sheldon Ennis was denied the effective assistance of counsel. (Strickland v Washington, 466 US 668; People v Benevento, 91 NY2d 708; People v Ortiz, 76 NY2d 652; People v Turner, 5 NY3d 476; People v Caban, 5 NY3d 143; People v Hobot, 84 NY2d 1021; People v Mahboubian, 74 NY2d 174; People v Bornholdt, 33 NY2d 75; People v Owens, 22 NY2d 93; People v Rivera, 71 NY2d 705.) III. Where the prosecution failed to disclose significant Brady evidence that went directly to Sheldon Ennis’s innocence in the Billy Moody shooting, and where defense counsel did not learn of that evidence until too late in the trial to take advantage of it, Mr. Ennis’s convictions must be reversed. (Brady v Maryland, 373 US 83; 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; United States v Manning, 56 F3d 1188; Smith v Secretary of New Mexico Dept. of Corrections, 50 F3d 801; Bowen v Maynard, 799 F2d 593; People v Vilardi, 76 NY2d 67; People v Wright, 86 NY2d 591.) IV. Where there was no evidence that Sheldon Ennis knew that anyone involved in the Randolph Sherman-Clarence Calwell incident was armed with a knife, no evidence that Mr. Ennis intended anyone to inflict physical injury on Sherman and Calwell by stabbing them, and no evidence that Mr. Ennis aided the actual stabbers in any way, his convictions for the assaults of Sherman and Calwell were obtained without legally sufficient evidence and must be reversed. (Jackson v Virginia, 443 US 307; People v Contes, 60 NY2d 620; People v Piazza, 48 NY2d 151; People v Gerard, 50 NY2d 392; People v La Belle, 18 NY2d 405; People v Morales, 130 AD2d 366; People v Akptotanor, 158 AD2d 694, 76 NY2d 1000; People v Monaco, 14 NY2d 43; People v Rivera, 176 AD2d 510.)

      Robert M. Morgenthau, District Attorney, New York City (Susan Axelrod and Patrick J. Hynes of counsel), for respondent.
    I. The People did not fail to disclose Brady or Giglio material. (People v Wright, 86 NY2d 591; Brady v Maryland, 373 US 83; People v Vilardi, 76 NY2d 67; People v Baxley, 84 NY2d 208; Giglio v United States, 405 US 150; People v Cwikla, 46 NY2d 434; United States v Bagley, 473 US 667; People v Bond, 95 NY2d 840; People v Sutherland, 219 AD2d 523, 87 NY2d 908; People v Clark, 89 AD2d 820.) II. Defendant received effective assistance of trial counsel. (People v Pizarro, 7 NY3d 840; People v Bongarzone-Suarrcy, 6 NY3d 787; People v Ortiz, 76 NY2d 652; People v Tamayo, 222 AD2d 321; United States v Moree, 220 F3d 65; Cuyler v Sullivan, 446 US 335; People v Berroa, 99 NY2d 134; People v McDonald, 68 NY2d 1; United States v Kliti, 156 F3d 150; United States v Levy, 25 F3d 146.) III. The People’s evidence was more than sufficient to sustain defendant’s assault convictions for the stabbings of Clarence Calwell and Randolph Sherman. (People v Danielson, 9 NY3d 342; People v Schulz, 4 NY3d 521; People v Tejeda, 73 NY2d 958; People v Jackson, 65 NY2d 265; People v Bleakley, 69 NY2d 490; Matter of Erin C., 16 AD3d 320; People v Wilson, 240 AD2d 774; People v Mitchell, 77 NY2d 624; People v Akptotanor, 158 AD2d 694, 76 NY2d 1000.)
   OPINION OF THE COURT

Graffeo, J.

Defendant, his brother and a coconspirator were jointly tried and convicted of participating in a conspiracy to sell drugs and assaulting rival drug dealers to further the conspiracy. On appeal, defendant argues that his convictions should be reversed because his trial counsel failed to make appropriate use of potentially exculpatory information that he discovered during the trial. We agree with the Appellate Division that reversal is not warranted and we therefore affirm.

Sheldon Ennis, his brother Aaron, and coconspirator Keith Taylor were named in a 23-count indictment as participants in a drug selling conspiracy in which they used violence to keep rival drug dealers from encroaching on their territory. At the joint trial of the three men, the People offered proof that Sheldon and Aaron Ennis ran their operation—known as the “Dog Pound”—out of a hotel on 38th Street in Manhattan. The Ennis brothers allowed other groups to sell drugs in the vicinity but warned them to stay outside of a designated area in front of the hotel. Those who failed to heed the warning were severely punished, as demonstrated by the two violent incidents that led to the convictions Sheldon Ennis challenges in this appeal.

One such incident, which occurred in August 1996, involved Frank “Nitti” Brown who ran a competing drug operation adjacent to the Dog Pound territory. Brown testified at trial that, for many months, he had a peaceful relationship with the Ennis brothers. That changed when Brown antagonized the brothers by his decision not to use them as his supplier. Then, one of Brown’s workers crossed into Dog Pound territory and sold drugs near the hotel. The Ennis brothers confronted Brown about the transgression and a verbal altercation ensued. Brown retreated to his base of operations in the Bronx, intending to return with a group of armed associates the next day. Nonetheless, that evening he and Billy Moody drove down 38th Street, accompanied by two female acquaintances. Brown and Moody both testified that they were unarmed and did not intend to provoke a fight.

Brown recounted at trial that, as he proceeded down the street, he spotted Sheldon Ennis leaning against a telephone pole. Once Sheldon saw Brown’s car, he raised a gun and began to shoot. Brown swerved and then observed Aaron on the opposite side of the street. Aaron also began firing at Brown’s vehicle. A third conspirator—Keith Taylor—pointed a gun at the car, although Brown was not sure whether Taylor pulled the trigger. As they drove off, Moody told Brown that he had been shot. A couple of blocks away, Brown was able to locate a police car to report the shooting. He then sought medical assistance for Moody, who survived but was paralyzed as a result of the incident. The police retrieved numerous discharged shells and casings from the area of the shooting and, at trial, a ballistics expert testified that at least two and probably more guns were involved. In connection with this shooting, the Ennis brothers and Taylor were charged with attempted murder of Moody and several counts of assault and criminal possession of a weapon.

The second violent incident occurred four months after the Moody shooting—in December 1996—when the Ennis brothers were involved in another fracas with Clarence Calwell and Randolph Sherman, rival drug dealers who ran an operation down the street. Similar to the Brown incident, the dispute arose when one of the dealers who worked for Calwell and Sherman conducted a drug sale in Dog Pound territory. Sheldon and Aaron located the rival dealers and initiated a confrontation that resulted in Calwell and Sherman each suffering multiple stab wounds. Both brothers were charged with two counts of attempted murder in the second degree and multiple counts of assault.

The jury returned a verdict convicting defendant Sheldon Ennis of conspiracy in the second degree for his participation in the Dog Pound drug operation. In connection with the Moody shooting, the jury acquitted defendant of the attempted murder count but convicted him of assault in the first degree and criminal possession of a weapon in the second and third degrees. Defendant was also acquitted of the two attempted murder counts arising from the stabbing of Sherman and Calwell but was convicted of one count of assault in the first degree and one count of assault in the second degree for the injuries they sustained.

After the verdict but before sentencing, defendant’s trial counsel—David Cooper—submitted a CPL 330.30 motion alleging that Sheldon’s conviction for assault in the first degree as to the shooting of Billy Moody should be reversed based on a Brady violation. Cooper asserted that, during the trial, he learned that Aaron Ennis had participated in a proffer session with the District Attorney’s office in which Aaron stated that he shot Billy Moody and that defendant was not present at the shooting. The People never turned over the statement as Brady material. Cooper explained that he was told about the statement in confidence and with the understanding that he would not disclose it until after the trial concluded. He claimed that, if the People had timely provided the Brady information, he would have sought a severance and a separate trial for defendant so that he could have called Aaron as a witness. Having learned of the statement late in the trial, however, Cooper contended there was no way he could get the statement before the jury because Aaron would have invoked his Fifth Amendment privilege against self-incrimination if Cooper had tried to call him as a witness at the joint trial.

The trial court denied the CPL 330.30 motion, reasoning that, although the People should have disclosed Aaron’s statement, reversal was not warranted because defense counsel knew of the information during trial, at a time when he could have pursued various remedies (including an ex parte application to the court). The court concluded that defense counsel “tactically chose not to do anything” until after the jury reached its verdict, attempting “to use the Brady doctrine as both a shield and a sword.” After the motion was denied, defendant was sentenced as a predicate felon to an aggregate term of 43V3 to 60 years in prison.

Five years later, defendant made a CPL 440.10 motion to vacate the judgment, repeating his Brady argument and raising an ineffective assistance of trial counsel claim. The motion was supported by the affidavit of David Cooper, Sheldon’s trial attorney, who explained that it was Aaron’s attorney who told him that, in an attempt to enter into a cooperation agreement with the People, Aaron stated that he shot Billy Moody and that defendant was not involved in the shooting. Cooper averred that, because he had promised Aaron’s attorney that he would not disclose this information until the trial was over, he felt constrained not to alert the trial court. He further claimed that he had no “tactical or strategic reason” for his failure to act on the information during the trial. The motion court denied the application, echoing the reasoning of the trial court (2005 NY Slip Op 30328[UJ).

The Appellate Division affirmed defendant’s convictions, rejecting the ineffective assistance of counsel and Brady violation arguments for reasons similar to those articulated by the trial and motion courts (41 AD3d 271 [2007]). The court noted that there was no reasonable possibility that the People’s failure to timely disclose Aaron’s statement contributed to the verdict because there would have been no means for defendant to use the statement at trial, even if a severance had been granted, since Aaron would undoubtedly have invoked his Fifth Amendment privilege to avoid testifying on his brother’s behalf. The court reasoned that any attempt to introduce the statement as hearsay through a third party present at the proffer session would have been unsuccessful because the statement did not fall within any hearsay exception, including the exception for declarations against penal interest. Finally, the Appellate Division also rejected defendant’s claim that his assault convictions arising from the Calwell and Sherman incident were not supported by legally sufficient evidence. A Judge of this Court granted defendant leave to appeal (10 NY3d 810 [2008]).

Defendant raises two ineffective assistance of trial counsel arguments. First, he contends that when Cooper made a promise to Aaron’s counsel not to reveal information about Aaron’s exculpatory statement until the trial ended, a conflict of interest was created and reversal is necessary because the conflict significantly impacted the defense. Second, he asserts that he did not receive meaningful representation because Cooper failed to appropriately act on the information he received from Aaron’s lawyer during the trial. We conclude that both arguments lack merit.

Under the state and federal constitutions, a criminal defendant is entitled to the effective assistance of counsel, defined as “representation that is reasonably competent, conflict-free and singlemindedly devoted to the client’s best interests” (People v Harris, 99 NY2d 202, 209 [2002] [citations omitted]). A claim that defense counsel’s representation was compromised by a conflict of interest requires two inquiries. First, the court must examine the nature of the relationship or circumstances that are alleged to establish a conflict. Second, if a conflict is identified, the court must determine whether the conflict “operated on the representation” (People v Ortiz, 76 NY2d 652, 657 [1990] [internal quotation marks and citations omitted]), i.e., whether the relationship or circumstances “bore a substantial relation to the conduct of the defense” (People v Berroa, 99 NY2d 134, 142 [2002] [internal quotation marks and citations omitted]).

To date, our conflict of interest cases have generally fallen into one of two categories: cases where a potential conflict of interest was identified based on defense counsel’s previous or concurrent representation of a client whose interests conflicted with those of defendant (see e.g. People v Abar, 99 NY2d 406 [2003] ; People v McDonald, 68 NY2d 1 [1986]) and cases where defense counsel became a witness against defendant (see e.g. People v Lewis, 2 NY3d 224 [2004]; Berroa, 99 NY2d 134 [2002]). Regardless of the circumstances, in our prior cases the potential conflicts of interest were discernible based on objective facts that were not easily subject to manipulation by the conflicted attorney. For example, in Abar, the purported conflict arose from defense counsel’s former employment as a prosecutor who had been involved in prior prosecutions of defendant. In Berroa, defense counsel’s out-of-court conversations with defense witnesses created the potential that she would become a witness against her client when those witnesses later gave alibi testimony contradicting what they had previously told her.

In this case, the purported conflict of interest does not arise from objective facts or circumstances external to defense counsel. Rather, it is alleged that defense counsel was torn between keeping a promise to Aaron’s counsel not to reveal the exculpatory information and fulfilling his professional obligation to act in defendant’s best interests. In the affidavit submitted in connection with the CPL 440.10 motion, Cooper stated that he did not tell the trial court about the alleged Brady violation or otherwise attempt to use the exculpatory information at trial because he felt constrained to remain silent, apparently based on his personal (as opposed to professional) ethical values.

The personal dilemma defense counsel describes is markedly different from the types of conflicts that we have previously recognized as triggering our conflict of interest analysis because it is entirely subjective. Many (perhaps most) attorneys would not have perceived any conflict; having learned information that they deemed useful to their client, they presumably would have pursued one of several available courses of action, including advising the trial court, ex parte and without necessarily divulging their source, that they had reason to believe there had been a proffer session in which exculpatory statements were made. For these lawyers, any personal concern stemming from the assurance of confidentiality would have been outweighed by the professional obligation to pursue the interests of a client who was on trial for serious offenses, including attempted murder. We are therefore hard-pressed to place the internal struggle cited by defense counsel in the same category as the conflicts of interest discussed in our precedents.

Even if we viewed this case as presenting a conflict situation, reversal would not be warranted under the second prong of the inquiry. “Whether a conflict of interest operates on the defense is a mixed question of law and fact and, as a result, our review is limited. We may disturb an Appellate, Division determination on this issue only if it lacks any record support” (Abar, 99 NY2d at 409 [citations omitted]). Here, the Appellate Division rejected the argument that defense counsel’s failure to raise a Brady violation or to otherwise attempt to use the exculpatory information at trial was a result of the purported conflict. Defendant argues that this conclusion is unsupported by the record because defense counsel stated that he had no tactical or strategic reason for acting as he did. But the Appellate Division was not required to accept defendant’s allegations at face value. Rather, in determining what motivated defense counsel, all of the circumstances surrounding the situation could be taken into account. In this case, we cannot say that the inference drawn by the Appellate Division (and the other two fact-finding courts) lacked any support in this record, particularly because, as addressed below, the actions defendant contends that his trial counsel should have taken would not have advanced his defense.

Defendant’s related claim that defense counsel’s performance fell below constitutionally adequate levels is also based on his assertion that his lawyer failed to appropriately use Aaron’s statement—which he characterizes as Brady material—at trial. Where no conflict of interest is involved, the standard for assessing the effectiveness of trial counsel is whether the attorney provided meaningful representation. New York courts have adopted, a flexible approach that takes into account the fairness of the trial process as a whole and the totality of the representation (see People v Benevento, 91 NY2d 708 [1998]). Unlike the federal ineffective assistance standard, which requires a showing that, but for counsel’s inadequacy, the outcome of the trial would have been different, New York courts do not conduct a strict prejudice inquiry (see id. at 713-714). However, this Court has held that it “would, indeed, be skeptical of an ineffective assistance of counsel claim absent any showing of prejudice” and that such a showing is “a significant but not indispensable element in assessing meaningful representation” (People v Stultz, 2 NY3d 277, 283-284 [2004]).

In this case, defense counsel performed as an effective advocate in many significant respects. He vigorously cross-examined the People’s witnesses, gave a strong closing argument, and succeeded in obtaining acquittals on the most serious charges facing defendant—the three attempted murder counts (one relating to the Moody shooting and the others stemming from the stabbings of Calwell and Sherman). Defendant contends that counsel operated below the minimally-required level of effectiveness because he failed to preserve an objection to the purported Brady violation (or to seek a mistrial or severance based on the violation) and made no attempt to get Aaron’s exculpatory statement before the jury. We disagree.

Defendant’s claim that his trial should have been severed from Aaron’s so that he could call Aaron as a witness is undermined by the fact that Aaron would undoubtedly have asserted his Fifth Amendment privilege against self-incrimination if this had occurred. Nor could defendant have called a witness who overheard Aaron’s statement—such as Aaron’s attorney—to testify as to its content because, in a trial against defendant, the statement would be hearsay not subject to any exception.

Defendant’s allegation that the statement would be admissible through a third party under the exception for declarations against penal interest (DAPI) also fails. To qualify under this exception, the declarant must be unavailable, must have competent knowledge of the facts and must have known at the time the statement was made that it was against his or her penal interests (People v Brensic, 70 NY2d 9, 15 [1987]; see People v Settles, 46 NY2d 154, 167 [1978]). Even if these criteria are met, the statement cannot be received in evidence unless it is also supported by independent proof indicating that it is trustworthy and reliable (id.). Here, only two of the DAPI criteria are present: Aaron would have been unavailable to testify on defendant’s behalf because of his Fifth Amendment privilege and, since Aaron acknowledged (and independent evidence indicated) that he participated in the shooting, he would have had competent knowledge of whether defendant was also a participant.

The requirement that the statement be contrary to the declarant’s penal interest, however, poses a problem since the part of the statement that defendant would have sought to admit—that defendant was not present at the time of the shooting—is not directly inculpatory of Aaron (Brensic, 70 NY2d at 16 [courts “admit only the portion of (the) statement which is opposed to the declarant’s interest since the guarantee of reliability contained in declarations against penal interest exists only to the extent the statement is disserving to the declarant” (citations omitted)]). Moreover, given the context in which the statements were elicited, it is questionable whether Aaron would have viewed them as being against his penal interest. Aaron made the statements at the District Attorney’s office, in the presence of his attorney, at a time when he was already being prosecuted for the offense and as part of a proffer in which he apparently sought to obtain an advantage, perhaps a plea bargain for himself or leniency for Sheldon, in exchange for his cooperation. As such, Aaron was in control of whether any statement he made could be used against him and, if it was, it would only be because he had reached an agreement with the prosecution that he deemed sufficiently valuable to justify such a result. Finally, an inculpatory declaration is not admissible under the fourth criterion unless there is “sufficient competent evidence independent of the declaration to assure its trustworthiness and reliability” (id. at 15 [citation omitted]) and, in this case, no such proof has been identified.

Because Aaron could not have been compelled to testify on his brother’s behalf and his statements would not have been admissible through a third party, defense counsel cannot be deemed ineffective for failing to seek a severance or to otherwise attempt to admit the statements into evidence. Nor can the representation be deemed constitutionally deficient based on defense counsel’s failure to raise the Brady argument during the trial. While the People have an ongoing obligation to turn over exculpatory information—and their failure to do so in this case cannot be condoned—noncompliance with this requirement will not rise to the level of a Brady violation unless the evidence was material which, in New York, turns on whether the defense made a specific request for the information (People v Vilardi, 76 NY2d 67, 77 [1990]). Here, defense counsel sought disclosure of all statements made by participants in the crime that were exculpatory of defendant. As such, the People’s failure to turn over Aaron’s statement would be material if there is a “reasonable possibility” that the nondisclosure contributed to the verdict (id.). That standard is not met because, had the statement been turned over, there would have been no avenue for defense counsel to admit it into evidence, either in the joint trial of the Ennis brothers or in a separate trial of defendant had severance been granted.

As defendant acknowledges in his brief, it was not the content of Aaron’s statement that was potentially valuable to the defense; if true, the fact that defendant was not present at the shooting would be a fact already known to defendant. In other words, this is not a case where the information might have opened a line of investigation for the defense that was not otherwise available. Rather, here it was the fact that Aaron made the statement that was significant. Defendant contends that, if the jury had learned that the actual shooter stated that defendant was not involved, this would be compelling evidence supplying reasonable doubt. While the impact of such testimony is debatable since jurors would have had ample reason to question Aaron’s credibility given that he had an obvious motive to lie to protect his brother, a case could be made that, had the statement been admissible, there is at least a reasonable possibility that the outcome of the trial would have been different. But because there is no way that defendant could have presented the statement to the jury, this is a situation where the inadmissibility of the exculpatory information prevented it from being material, meaning its nondisclosure did not rise to the level of a Brady violation (see e.g. People v Scott, 88 NY2d 888 [1996]). As such, defense counsel’s failure to preserve a Brady objection during the trial did not amount to ineffective assistance of counsel because an attorney is not deemed ineffective for failing to pursue an argument that had little or no chance of success.

Finally, we have considered defendant’s challenge to the sufficiency of the evidence underlying the Calwell and Sherman assault convictions and find it to be without merit. There was ample evidence from which a rational jury could conclude beyond a reasonable doubt that the two brothers acted in concert and shared the intent to inflict the requisite degree of physical injury.

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

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

Order affirmed.

      . Defendant was convicted of six out of the nine counts charged against him in the indictment: conspiracy in the second degree, two counts of assault in the first degree, criminal possession of a weapon in the second and third degrees, and one count of assault in the second degree.

      . Although we discuss the Brady issue in connection with defendant’s ineffective assistance of counsel claim, defendant’s separate argument that reversal is warranted based on the purported Brady violation is not properly before this Court for review due to defense counsel’s failure to preserve the issue by making a timely objection to the People’s nondisclosure when he discovered it during the trial (see People v Rogelio, 79 NY2d 843 [1992]).


author: Smith, J.

text:
    [900 NE2d 930, 872 NYS2d 379]
    The People of the State of New York, Respondent, v Clarence A. Johnson, Appellant.
    Argued October 15, 2008;
    decided November 24, 2008

      POINTS OF COUNSEL

      Gary A. Horton, Public Defender, Batavia (Bridget L. Field of counsel), for appellant.
    The lower court erred in accepting the People’s assessment of points on the risk assessment instrument and finding Mr. Johnson to be a level two sex offender under Correction Law article 6-C. (People v Taylor, 48 AD3d 775; People v MacNeil, 283 AD2d 835; People v Tejada, 51 AD3d 472; People v Lewis, 45 AD3d 1381; People v Brown, 5 Misc 3d 529; People v Patterson, 149 AD2d 966; People v Castro, 286 AD2d 989.)

      Lawrence Friedman, District Attorney, Batavia (David E. Gann of counsel), for respondent.
    I. Appellant was properly assessed 20 points under Sex Offender Registration Act: Risk Assessment Guidelines and Commentary risk factor 7, “Relationship Between Offender and Victim.” (People v Brown, 5 Misc 3d 529; New York v Ferber, 458 US 747; Osborne v Ohio, 495 US 103; Ashcroft v Free Speech Coalition, 535 US 234.) II. Appellant’s argument that he was improperly assessed 30 points under Sex Offender Registration Act: Risk Assessment Guidelines and Commentary risk factor 5, “Age of Victim,” is without merit. (People v Brown, 5 Misc 3d 529; People v Prado, 4 NY3d 725; People v Davila, 299 AD2d 573.)
   OPINION OF THE COURT

Smith, J.

This case requires us to consider one of the risk factors used by the Board of Examiners of Sex Offenders (Board) to help courts assess the danger that convicted sex offenders pose to the community. Defendant, whose crime consists of possessing pornographic images of children, argues that the Board’s factor 7, indicating an increased level of risk when a crime “was directed at a stranger,” should be interpreted in a way that makes it inapplicable to his case.

Defendant’s proposed reading of factor 7 is a strained one, and we reject it. It may well be that, in cases involving the possession of child pornography, the absence of a previous relationship between the offender and the children pictured does not normally heighten the risk the offender presents to the community. However, the way for courts to avoid anomalous results is not to distort the plain meaning of the Board’s risk factors, but to exercise their discretion to depart from the result indicated by the risk factors in cases where that result does not make sense.

I

Defendant had on his computer pornographic images of children who were strangers to him. He pleaded guilty in County Court to attempted promoting a sexual performance by a child, and was sentenced to 10 years’ probation. His conviction required him to register under the Sex Offender Registration Act (SORA) (Correction Law art 6-C), and County Court was required by SORA to decide whether defendant presented a level one (low), level two (moderate) or level three (high) risk (see Correction Law § 168-n [2]; see also Correction Law § 168-Z [6]). The choice here was between level one and level two. The chief practical difference between them is that the identity of a level two offender is made available to the public (see Correction Law § 168-Z [6] [b]; § 168-q).

County Court found defendant to be a level two offender, relying on a numerical calculation made by the Board. The Board made this calculation using its Risk Assessment Guidelines, which consist of 15 risk factors, each carrying a certain number of points. An offender who receives a score of 70 points or less is “presumptively level 1,” and one who receives more than 70 but less than 110 is “presumptively level 2” (Board of Examiners of Sex Offenders, Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [Guidelines], at 3 [2006]). (The point totals are subject to “overrides,” not involved in this case, which automatically yield a presumptive level three designation [¿d.].)

In defendant’s case, the Board recommended, and County Court adopted, an assessment of 100 points, but the Appellate Division later found, and the People do not dispute, that 20 of them were assessed in error. Of the remaining 80 points, 20 were assessed under factor 7, and the Appellate Division found that these points were proper. Based on the 80-point total, the Appellate Division affirmed County Court’s designation of defendant as a level two offender (47 AD3d 140 [2007]). This Court granted leave to appeal (10 NY3d 706 [2008]).

II

Factor 7 reads in full as follows:

“Factor 7: Relationship Between Offender and Victim
“The offender’s crime (i) was directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization or (ii) arose in the context of a professional or avocational relationship between the offender and the victim and was an abuse of that relationship (20 pts).”

Subsection (i) of factor 7 reflects the Legislature’s command that the Board consider, among other things, whether an offender has a condition that makes him “likely to engage in predatory sexually violent offenses” (Correction Law § 168-Z [5] [a] [i]). The subsection tracks the legislative definition of the word “predatory”: “an act directed at a stranger, or a person with whom a relationship has been established or promoted for the primary purpose of victimization” (Correction Law § 168-a [9]).

The Legislature’s and the Board’s concern with sex offenders who direct their crimes at strangers is easily understandable, in the ordinary case. Most sex crimes involve criminals who subject their victims to sexual contact without the victims’ consent, and people who do that to people they do not know pose a special danger to the community—they present, in the words of the Board’s commentary on factor 7, “a heightened concern for public safety and need for community notification” (Guidelines at 12). In a footnote to this remark, the Board states an obvious truth: “The need for community notification ... is generally greater when the offender strikes at persons who do not know him well. . . .” (Id. at 12 n 8.)

But the truth of this generalization is not at all obvious when the offense in question is the possession of child pornography. Most people who commit such crimes never have any contact with the children whose images they look at. The unusual case where the offender and the children are acquainted would seem to present a greater threat to the community, not a lesser one. Bad as this defendant’s conduct was, it would surely be worse— and defendant would seem a significantly more dangerous man—if he had been looking at pictures of his friends’ or neighbors’ children. Yet, under factor 7, previous acquaintance with the children would (unless one of the other facts listed in factor 7 were present) decrease defendant’s risk score, not increase it. It does not seem that factor 7 was written with possessors of child pornography in mind.

Defendant asks us to read factor 7 in a way that would exclude him from its coverage. But we see no way to do that under the factor’s plain language. Defendant’s crime was unquestionably “directed at . . . stranger[s].” Defendant argued to County Court that his crime was not “directed at” the children pictured in the images he possessed—i.e., that they were not his victims. But of course they were. The whole point of the child pornography statutes is to protect children like these from exploitation by pornographers—an exploitation to which defendant, by consuming the pornographers’ product, contributed. As the Appellate Division pointed out, we have referred to provisions governing the age of children in child pornography statutes as “victim age provisions” (Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745, 748 [2007]); and the United States Supreme Court, in a case involving New York child pornography statutes, has referred to “the child victim” of such a crime (New York v Ferber, 458 US 747, 759 n 10 [1982]). In this Court, defendant has abandoned the argument that the children were not his victims.

Defendant now focuses instead on the word “relationship” in the title of factor 7: “Relationship Between Offender and Victim.” His argument is that because he had no relationship with his victims, factor 7 does not cover him. We find the argument to be without merit. It is plain from the face of factor 7 that it is meant to focus on the relationship, or absence of a relationship, between the offender and his victim before the crime was committed. This risk factor expressly includes, as the first-mentioned category of offender it covers, one whose victim was “a stranger.” Perhaps factor 7 could have been more precisely titled “Relationship or Lack of Relationship Between Offender and Victim,” but the shorter title does not create any real doubt about what the factor means.

Defendant is, in substance, asking us to distort the text of factor 7 to avoid an unjust result in cases like his. This expedient is not only inappropriate, it is unnecessary. While factor 7 unambiguously requires the assessment of 20 points against defendant, neither the Board nor the court was bound to choose the risk level indicated by defendant’s point total. And although the Board did choose that risk level, the court was not bound to follow the Board’s recommendation.

The Board’s commentary on its Guidelines makes clear that the risk level it calculates from point totals is only “presumptive”: “the Board or court may depart from it if special circumstances warrant” (Guidelines at 4). The commentary recognizes “that an objective instrument, no matter how well designed, will not fully capture the nuances of every case” and that a departure from the presumptive risk level is warranted where “there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (id.).

The court is free to depart from the presumptive risk level even if the Board does not recommend such a departure. The statute is quite clear: the Board’s duty is to “make a recommendation to the sentencing court” (Correction Law § 168-Z [6]) and the court, applying a clear and convincing evidence standard, is to make its determination after considering that recommendation, and any other materials properly before it (Correction Law § 168-n [3]). While departures from the Board’s recommendations are of course the exception, not the rule, the possibility of such departures has been generally recognized (see Matter of VanDover v Czajka, 276 AD2d 945, 946 [3d Dept 2000]; Matter of New York State Bd. of Examiners of Sex Offenders v Ransom, 249 AD2d 891, 892 [4th Dept 1998] [“The Board . . . serves only in an advisory capacity that is similar to the role served by a probation department in submitting a sentencing recommendation”]; see also 83 NY Jur 2d, Penal and Correctional Institutions § 319 [2d ed updated 2008] [“the court is not bound by the recommendation of the board in determining the appropriate risk level of an offender . . . and, in its exercise of discretion, may depart from the board’s recommendation”]).

In this case defendant might well have argued for a downward departure from the level indicated by defendant’s point total. As we have explained, the application of factor 7 to child pornography cases like this produces a seemingly anomalous result, one the authors of the Guidelines may not have intended or foreseen. However, defendant never asked County Court to use its discretion to depart from the Board’s recommendation. He made only legal arguments, directed at the interpretation of the Guidelines.

The courts below did not err in rejecting defendant’s arguments, and no other legal issue has been preserved for our review. We therefore affirm his level two designation. This result may not cause defendant serious hardship; he has a statutory right to petition County Court for an order modifying that designation (Correction Law § 168-0 [2]), and our holding today does not affect that right.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Pigott and Jones concur.

Order affirmed, without costs.


author: Jones, J.

text:
    [900 NE2d 943, 872 NYS2d 392]
    In the Matter of William J. Gormley, Appellant, v New York State Ethics Commission, Respondent.
    Argued October 14, 2008;
    decided November 24, 2008

      POINTS OF COUNSEL

      O’Connell and Aronowitz, Albany (Cornelius D. Murray of counsel), for appellant.
    I. Public Officers Law § 73 (8) (a) (ii) does not prohibit a former state employee from submitting an affidavit to a court of law. (Ivey v State of New York, 80 NY2d 474; Matter of McCulloch v New York State Ethics Commn., 285 AD2d 236; Forti v New York State Ethics Commn., 147 AD2d 269, 75 NY2d 596; People v Byron, 17 NY2d 64.) II. Assuming, arguendo, there was a violation, the New York State Ethics Commission had the burden of proving that appellant knowingly and intentionally violated the Public Officers Law. (Ivey v State of New York, 80 NY2d 474; Matter of Doxen v Wack, 175 Misc 2d 326; Ratzlaf v United States, 510 US 135.) III. There was no substantial evidence in the record to support the finding that appellant knowingly and intentionally violated Public Officers Law § 73 (8). (People v Alamo Rent A Car, 174 Misc 2d 501; United States v Golitschek, 808 F2d 195; Liparota v United States, 471 US 419; Arthur Andersen LLP v United States, 544 US 696; Matter of Valvo [Ross], 83 AD2d 344, 57 NY2d 116; Matter of Maguire [Ross], 54 NY2d 965; Matter of Smith [Ross], 78 AD2d 961; People v Patterson, 39 NY2d 288, 432 US 197; Matter of McCulloch v New York State Ethics Commn., 184 Misc 2d 546, 285 AD2d 236; Matter of Doxen v Wack, 175 Misc 2d 326.)

      Andrew M. Cuomo, Attorney General, Albany (Julie M. Sheridan, Barbara D. Underwood and Andrea Oser of counsel), for respondent.
    I. The lifetime bar extends to covered services rendered in courts as well as state agencies where, as here, those services are rendered for compensation. (Forti v New York State Ethics Commn., 75 NY2d 596; McDougald v Garber, 73 NY2d 246; People v Giordano, 87 NY2d 441; Sanders v Winship, 57 NY2d 391; Matter of Branford House v Michetti, 81 NY2d 681; Matter of Rodriguez v Perales, 86 NY2d 361; Matter of Smathers, 309 NY 487; Matter of McCulloch v New York State Ethics Commn., 285 AD2d 236; Matter of Doxen v Wack, 175 Misc 2d 326; Sarniento v World Yacht Inc., 10 NY3d 70.) II. A civil penalty is authorized where, as here, an individual knowingly and intentionally engages in conduct which is in fact prohibited. (Matter of Rubenfeld v New York State Ethics Comma., 43 AD3d 1195; People v Shapiro, 4 NY2d 597; Bryan v United States, 524 US 184; People v Coe, 71 NY2d 852; Kolstad v American Dental Assn., 527 US 526; United States v Murdock, 290 US 389; Arthur Andersen LLP v United States, 544 US 696; Liparota v United States, 471 US 419; People v Alamo Rent A Car, 174 Misc 2d 501; Matter of Otis E. Serv. v Hudacs, 185 AD2d 483.)
   OPINION OF THE COURT

Jones, J.

The issue before this Court is whether imposition of a civil penalty under Public Officers Law § 73 (18) required the New York State Ethics Commission to prove that petitioner knew the conduct was prohibited and acted intentionally to violate the statute. We conclude that the Commission was not required to make such a showing.

Petitioner worked for the New York State Department of Health (DOH) from 1973 to 1995. During petitioner’s 22-year tenure, he held various senior management positions and served as executive director of a project that developed and implemented New York’s RUGS-II case mix reimbursement system—a system used to determine Medicaid reimbursement rates for nursing homes. Petitioner established a health care consulting firm in 1997 and, in 2004, was paid $11,880 by a group of nursing homes to prepare an expert affidavit to support their litigation challenging the RUGS-II system (see Matter of Nazareth Home of the Franciscan Sisters v Novello, 7 NY3d 538 [2006]).

In his affidavit, petitioner stated, among other things:

“I served as Executive Director of the project that first developed and implemented the State’s RUGS-II case mix reimbursement system for nursing facilities . . .
“Overview of the State’s Rugs-II Reimbursement System . . .
“While the use of a 1983 base year was utilized in the original RUGS-II reimbursement system when first implemented in 1986 (since 1983 was the most recent rate year in which costs were available), the RUGS-II System was designed to utilize the 1983 base for multiple years. The term ‘multiple years’ was used at this time as a signal to the nursing homes that base years would not move virtually every year as had been the history since the inception of the New York State Medicaid program ...
“The exact number of years to maintain the same base year was never specified in policy or regulation during the 1983 to 1986 development and implementation timeframe. However, it is truly surprising that the 1983 base year has been in place for twenty-one years considering that the longest timeframe for utilizing a base prior to 1986 was just two years. I never envisioned or intended the base year to continue in perpetuity or to ever last as long as it has” (emphasis added).

In November 2004, the Commission notified petitioner that it had received information indicating that he may have violated the lifetime bar under Public Officers Law § 73 (8) (a) (ii) by executing that affidavit. Following an initial investigation and a hearing, the Commission determined that, while petitioner’s empirical analysis on Medicaid reimbursement shortfalls for the Erie Region nursing homes was permissible (because “knowledge and methodologies developed while an individual was in State service may be applied in new settings after the individual has left State service”), his statement about his intentions regarding the applicability of the 1983 base year violated the lifetime bar because it took “unfair advantage of his insider’s knowledge.” The Commission imposed a civil penalty of $3,500 under Public Officers Law § 73 (18) (the civil penalty provision [former Public Officers Law § 73 (14)]), rejecting petitioner’s argument that the language “knowingly and intentionally” in the statute required the Commission to show that petitioner knew his actions violated the law.

Petitioner commenced the instant CPLR article 78 proceeding challenging the Commission’s determination. After a transfer from the Supreme Court pursuant to CPLR 7804 (g), the Appellate Division found that substantial evidence supported both the Commission’s determination that the lifetime bar had been violated and imposition of the civil penalty, and dismissed the petition (46 AD3d 1078 [2007]). This Court granted petitioner leave to appeal (10 NY3d 705 [2008]). Thereafter, petitioner conceded that his conduct violated the lifetime bar, but continues to contest the civil penalty. We now affirm.

Public Officers Law § 73 (18) provides that “any person who knowingly and intentionally violates the provisions of subdivision ] . . . eight . . . shall be subject to a civil penalty” (emphasis added). The civil penalty provision traces its origins back to Penal Law § 1878 (L 1954, ch 695, § 2) where a violation of the then two-year ban was a criminal misdemeanor. In 1965, the provision was moved to Public Officers Law § 73 and the language “knowingly and intentionally” was added to the misdemeanor statute (L 1965, ch 1012, § 3). Amendments in 1987 changed the statute into a civil penalty provision but kept the “knowingly and intentionally” language (L 1987, ch 813, § 2). Finally, in 2007 the statute was renumbered as subdivision (18) of section 73 of the Public Officers Law and the maximum civil penalty was raised to $40,000 (L 2007, ch 14, § 27).

Given the history of the statute, plainly the Penal Law lends guidance in construing Public Officers Law § 73. The Penal Law provisions defining “knowingly” and “intentionally” normally require only that petitioner knew of and intended to engage in the conduct. “A person acts knowingly with respect to conduct or to a circumstance . . . when he is aware that his conduct is of such nature or that such circumstance exists” (Penal Law § 15.05 [2]). Under Penal Law § 15.05 (1), “[a] person acts intentionally with respect to . . . conduct . . . when his conscious objective is to . . . engage in such conduct.” Neither mental state requires petitioner to have knowledge of the illegality of his conduct or to have the conscious objective to violate the statute; the requirement that petitioner be aware that his conduct was illegal is normally embodied in the term “willfully” (see Bryan v United States, 524 US 184, 193 [1998]; People v Coe, 71 NY2d 852, 854-855 [1988]).

While petitioner argues that “knowingly” has, in certain cases, required a showing beyond that stated in Penal Law § 15.05 (2), those cases involved different statutory language and legislative history than that of the instant case (see e.g. Arthur Andersen LLP v United States, 544 US 696, 698 [2005] [statutory language “knowingly . . . corruptly persuad(e)”]; Liparota v United States, 471 US 419, 426 [1985] [food stamp statute criminalized a broad range of “apparently innocent conduct”]). Moreover, petitioner’s construction of the statute would allow a former state employee to escape liability simply by remaining ignorant of the law and would impede the enforcement of the lifetime ban and other prohibitions in Public Officers Law § 73.

In this case, petitioner conceded that his actions constituted a violation of the lifetime bar provision. To impose a civil penalty, the Commission needed only to show that petitioner was aware of the nature or circumstances regarding the submission of the expert affidavit on the RUGS-II system, a matter in which he personally participated, and had the conscious objective to prepare the expert affidavit. The Commission did not need to show that petitioner knew the statements in the affidavit violated the lifetime ban or that he purposely acted to violate the law.

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

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith and Pigott concur.

Judgment affirmed, with costs.

       The lifetime bar provides that a state employee shall not
      “after the termination of [state] service or employment [1] appear, practice, communicate or otherwise render services before any state agency or [2] receive compensation for any such services rendered ... on behalf of any . . . entity in relation to any case, proceeding, application or transaction with respect to which such person was directly concerned and in which he or she personally participated during the period of his . . . service or employment, or which was under his or her . . . active consideration” (Public Officers Law § 73 [8] [a] [ii]).