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

text:
    [982 NE2d 1227, 959 NYS2d 94]
    The People of the State of New York, Respondent, v Tayden Townsley, Appellant.
    Argued October 18, 2012;
    decided November 27, 2012

      POINTS OF COUNSEL

      Law Offices of Joel B. Rudin, New York City (Joel B. Rudin of counsel), for appellant.
    Appellate counsel’s failure to raise three clearly meritorious issues, one of which he inexcusably failed even to perceive, in favor of issues he knew would be unsuccessful, violated appellant’s constitutional right to the effective assistance of counsel. (Strickland v Washington, 466 US 668; People v Baldi, 54 NY2d 137; People v Stultz, 2 NY3d 277; Evitts v Lucey, 469 US 387; Ramchair v Conway, 601 F3d 66; People v Droz, 39 NY2d 457; Murray v Carrier, 477 US 478; People v Caban, 5 NY3d 143; People v Jenkins, 68 NY2d 896; People v Rivera, 71 NY2d 705.)

      James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner and Eamonn Neary of counsel), for respondent.
    Appellant was not denied effective assistance of appellate counsel and the Appellate Division properly denied his application for coram nobis relief. (People v Baldi, 54 NY2d 137; People v Benevento, 91 NY2d 708; People v Ellis, 81 NY2d 854; People v Berroa, 99 NY2d 134; People v Henry, 95 NY2d 563; People v Hobot, 84 NY2d 1021; People v Rivera, 71 NY2d 705; People v Satterfield, 66 NY2d 796; People v Modica, 64 NY2d 828; People v LaBree, 34 NY2d 257.)
   OPINION OF THE COURT

Smith, J.

In this proceeding for a writ of error coram nobis, defendant claims that he was deprived of the effective assistance of appellate counsel in an earlier appeal. Specifically, he claims appellate counsel was at fault for failing to argue, on appeal, that the conduct of the prosecutor at trial subjected defendant’s trial lawyers to ethical conflicts and thereby deprived defendant of the effective assistance of trial counsel. We hold that defendant has failed to demonstrate that his appellate counsel was ineffective.

I

Defendant was convicted in 1995 of murder, attempted murder, assault and weapons offenses after a trial in which witnesses testified that he shot two members of a rival drug gang, killing one and wounding the other. The theory of the defense at trial was that the “real killer” was not defendant, but the leader of defendant’s gang, Simeon Nelson, known as “Sims,” who, according to several witnesses’ testimony, was present when the shootings took place. Nelson did not testify at trial. Defendant’s request for a missing witness instruction was denied, but defense counsel made a missing witness argument in summation: “Simeon Nelson, who you didn’t hear from, sits in the catbird seat this afternoon.”

The principal issues now before us arise from defense counsel’s effort to interview Nelson before trial, and the prosecutor’s attempts to use that effort to the People’s advantage. On cross-examination of defendant, the prosecutor established that, after the shootings, defendant and Nelson were incarcerated in the same jail at the same time. The prosecutor asked defendant if he and his lawyers had met with Nelson on the morning of the first day of trial. Defendant acknowledged that he had seen his lawyers meeting with Nelson that day, but denied that he had attended the meeting. Commenting in summation on this line of questioning by the prosecutor, defense counsel told the jury sarcastically: “Well, I’m sorry that the lawyers for [defendant] wanted the real killer to come forward.”

In the People’s summation, the prosecutor made the following comments about the meeting between Nelson and defense counsel:

“I went and found out about their little secret meeting on April 25th. The Defendant didn’t know that I knew, and he tried to backtrack and he tried to get flustered, and now the Defense lawyer told you it’s his duty and obligation to try to talk to the real killer.
“Is there any testimony by anyone in this trial that they spoke to Sims and confronted him? No. No lawyer for Legal Aid got on the stand and testified. You have no evidence . . . that they confronted Sims.
“No, they had their little meeting with Sims to see if he would help them save their client, say it wasn’t him, say it was somebody else, give us some information that could get our boy and your friend off.”

Defense counsel did not object either to the prosecutor’s questions about the jailhouse meeting or the argument based on it. Nor did defendant’s appellate counsel raise any issue relating to those questions or comments on the direct appeal from defendant’s conviction and sentence.

The Appellate Division affirmed on direct appeal (People v Townsley, 240 AD2d 955 [3d Dept 1997]). Some 12 years later, defendant moved under CPL 440.10 to set aside his conviction, arguing among other things that the prosecutor had accused defense counsel of trying to fabricate a defense, with the result that defendant was deprived of his right to conflict-free counsel. County Court denied the CPL 440 motion, in part on the ground that the issue could have been raised on direct appeal. After the Appellate Division denied leave to appeal from the denial of the CPL 440 motion, defendant began the present coram nobis proceeding in the Appellate Division (see People v Bachert, 69 NY2d 593 [1987]), arguing that appellate counsel was ineffective for failing, among other things, to raise the conflict issue.

The Appellate Division denied coram nobis relief (2011 NY Slip Op 64401[U] [2011]). A Judge of this Court granted leave to appeal (17 NY3d 956 [2011]), and we now affirm.

II

Defendant’s principal argument proceeds in several stages. He argues that the prosecutor’s trial tactics created ethical problems for defendant’s trial counsel, who, according to defendant’s present argument, were put in a position where they should have called themselves as witnesses, and were also personally accused of wrongdoing. These problems, defendant argues, should have led the trial court to conduct an inquiry and, unless the conflicts were validly waived, to disqualify trial counsel. The court’s error in failing to proceed in this way, the argument continues, was so clear that appellate counsel’s failure to argue it on appeal amounted to ineffective assistance of counsel.

The ultimate question raised by this argument is whether appellate counsel was ineffective. In addressing that question, we examine the merits of the underlying claim that trial counsel was conflicted, but in doing so we must remember that appellate counsel’s omission of claims from his appellate brief “should not be second-guessed with the clarity of hindsight” (People v Benevento, 91 NY2d 708, 712 [1998]). The constitutional requirement of effective assistance of counsel is met where “the attorney provided meaningful representation” (People v Baldi, 54 NY2d 137, 147 [1981]). Appellate lawyers “have latitude in deciding which points to advance” and need not “brief or argue every issue that may have merit” (People v Stultz, 2 NY3d 277, 285 [2004]). In reviewing the performance of appellate counsel, “the minimum standard of performance required ... is a very tolerant one” (People v Turner, 5 NY3d 476, 480 [2005]). Viewing the case in that light, we conclude that appellate counsel was not ineffective.

Defendant first contends that his lawyers were subject to a “conflict” because the prosecutor’s questioning and argument about defense counsel’s meeting with Nelson made the defense lawyers into necessary witnesses at trial. This argument lacks merit.

The word “conflict” does not fully describe what is sometimes called the ‘ ‘advocate-witness” problem. A lawyer who is both an advocate and witness does not necessarily have conflicting interests, though that possibility exists. But whether or not there is a conflict, such a mixture of roles may confuse the fact-finder and impair the fairness of the trial, and a lawyer is ethically required, subject to certain exceptions, to withdraw from a representation when he or she (in the words of the ethical rule as it existed when defendant was tried) “learns or it is obvious that the lawyer ought to be called as a witness on behalf of the client” (former Code of Professional Responsibility DR 5-102 [a] [22 NYCRR 1200.21 (a)]; cf. Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7 [a] [current, similar provision]). One of the exceptions—where withdrawal “would work a substantial hardship on the client because of the distinctive value of the lawyer as counsel in the particular case” (Code of Professional Responsibility DR 5-101 [b] [4] [22 NYCRR 1200.20 (b) (4)]; cf. Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7 [a] [3])—might be relevant here, but the point is moot because a reasonable appellate counsel could well have concluded that the trial lawyers did not need to be called as witnesses at all.

The mere fact that defendant’s lawyers had met with Nelson, and that the jury knew of the meeting, did not make it either necessary or appropriate for the lawyers to testify. The prosecutor presumably brought out the meeting to show that Nelson, whom the defense portrayed as a missing witness, was not wholly in the People’s control—a legitimate, if peripheral, point that the testimony of defense counsel could hardly have refuted. Nothing in the record indicates that the defense lawyers could have said anything about the meeting that would have helped their client. It would no doubt be different if they could have testified that Nelson told them he committed the crimes, but there is no evidence that he told them anything of the kind.

Defendant’s second argument deserves more attention. It is, in substance, that the prosecutor accused the defense lawyers of criminal wrongdoing—of attempting to get Nelson to tell a false story that would exculpate the lawyers’ client. Such an accusation, while it would not automatically require disqualification, would, create at least a potential for conflict; when a lawyer’s own conduct is in question, the lawyer may be impelled to protect himself at his client’s expense (see Code of Professional Responsibility DR 5-101 [a] [22 NYCRR 1200.20 (a)]: “[A] lawyer shall not accept employment if the exercise of professional judgement on behalf of the client will be or reasonably may be affected by the lawyer’s own . . . personal interests” [cf Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.7 (a) (2)]; see also e.g. People v Konstantinides, 14 NY3d 1 [2009]; United States v Fulton, 5 F3d 605 [2d Cir 1993]). In this case, however, defendant’s appellate lawyer could reasonably have concluded that the record did not show that any such accusation was made.

The prosecutor’s cross-examination of defendant about his lawyers’ meeting with Nelson contained no suggestion of wrongdoing by defense counsel. It showed only that they had met with a possible witness—i.e., that they were doing their job. The prosecutor’s remarks about the meeting in closing argument are more troublesome. It was entirely inappropriate for the prosecutor to refer to the defense lawyers’ “little secret meeting” with Nelson and to suggest that their purpose was “to see if he would help them save their client, say it wasn’t him, say it was somebody else . . . get our boy and your friend off.” The argument suggested to the jury that there was something improper in a lawyer’s interviewing a witness in the hope of getting favorable testimony. That is not in the least improper. It is what good lawyers do.

Thus, the prosecutor’s closing argument warranted a rebuke from the trial judge. A reasonable appellate counsel could have concluded, however, that it warranted nothing more—specifically, that it did not warrant interrupting the trial to inquire whether defense counsel could still exercise independent judgment, and if not whether defendant would waive any conflict. It would have been reasonable for appellate counsel to conclude that a reversal based on the trial court’s failure to make such an inquiry was highly unlikely.

The prosecutor’s closing argument did not say, and could reasonably be read not to imply, that the defense lawyers asked Nelson to give false testimony. Subornation of perjury is a serious crime, of course, but it hardly seems likely that the trial lawyers in this case should have believed, or did believe, that they were in danger of investigation or prosecution for committing it. In other cases in which the issue of defense counsel’s personal culpability has been raised, the lawyers seemed to have much more serious problems. In Konstantinides, a witness specifically claimed that a defense lawyer asked her to lie (14 NY3d at 6); in Fulton, a witness had told prosecutors “that he had once imported heroin for Fulton’s trial counsel” (5 F3d at 606).

In this case, the prosecutor’s comments about defense counsel were far less specific. Trial counsel, and a reasonable appellate counsel reviewing the record, could well have taken them as nothing more than an obnoxious, but essentially irrelevant, way of describing a defense lawyer’s legitimate activity. Now, in this coram nobis proceeding, defendant makes a perhaps plausible argument that the prosecutor’s remarks were more than that, but we do not find the argument “so compelling that a failure to make it amounted to ineffective assistance of counsel” (People v Carter, 7 NY3d 875, 877 [2006]).

Defendant’s remaining arguments do not require long discussion. While a few of the prosecutor’s other remarks on summation may have been objectionable, they were of minor importance. Appellate counsel was not ineffective because he chose not to make an issue of them on appeal.

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

Cipabick, J. (dissenting).

I believe defendant is entitled to co-ram nobis relief as he has demonstrated that he was denied effective assistance of appellate counsel due to counsel’s failure to argue on direct appeal that defendant’s trial counsel was ineffective. Thus, I respectfully dissent.

L

In June 1995, defendant was convicted of second degree murder, first degree assault, two counts of first degree criminal use of a firearm and two counts of second degree criminal possession of a weapon stemming from the fatal shooting of Lynell James and the wounding of Johmar Brangan.

The following facts were adduced at trial. In 1994, defendant worked as a courier in a low-level drug ring in South Fallsburg, New York led by Simeon Nelson, known as “Sims” or “Sim” (hereinafter Nelson or Sims). The ring conducted crack cocaine sales out of the apartment of Barbara Slater. On July 1, 1994, James was shot in the back of the head inside Slater’s apartment and Brangan was shot in the mouth and arm in the hallway outside of the apartment. Police arrested defendant, whom witnesses identified as the assailant, 12 days later. Several of the People’s eyewitnesses, including Slater and Brangan, placed both defendant and Nelson at the scene of the shootings but named defendant as the assailant.

Defendant’s theory of the case was that Nelson shot James and Brangan and that the People’s witnesses accused defendant in fear of Nelson. Defendant testified that he fled after witnessing the shootings and hid after learning from his brother that witnesses named him as the perpetrator. During defendant’s cross-examination, the prosecutor sought to establish that defendant and his attorneys met with Nelson on the eve of trial to gain Nelson’s acquiescence to the defense’s strategy of shifting the blame to him. The prosecutor asked defendant, “Isn’t it true that because Sims is your friend, you wanted to clear it with him . . . , like when I go to trial I’m going to say that you did it so that I can get off, but don’t you be mad at me[?]” Defendant denied the allegation, stating that his attorneys instructed him not to discuss the case with anyone. The prosecutor then asked defendant whether he and his lawyers had a “get-together” at the jail with Nelson, “the same [person] . . . who you say committed the murder, not you[?]” Defendant responded that his lawyers met with Nelson, and that Nelson left within minutes of defendant’s entry into the meeting. There is no indication from the record that either counsel or the court had any discussion with defendant regarding whether the prosecutor’s cross-examination created a conflict for defense counsel.

During summation, defense counsel attempted to rebut the prosecutor’s insinuation, stating, “I’m sorry that the lawyers for Tayden wanted the real killer to come forward . . . I’m sorry that Tayden’s lawyers confronted Sim so that he would come clean.” During the People’s summation, the prosecutor responded:

“Is there any testimony by anyone in this trial that they spoke to Sims and confronted him? No. No lawyer for Legal Aid got on the stand and testified. You have no evidence, evidence, that they confronted Sims . . .
“So, don’t get fooled by that kind of argument about . . . how their meeting with Sims was to confront the murderer.”

The prosecutor also made various statements about the veracity of defendant’s testimony. The prosecutor told the jurors, “For [defendant] to tell you that he carried no grudge [against Nelson] is a blatant lie,” and that it was “reason enough to disregard everything that he has to say . . . as a total fabrication.” Additionally, the prosecutor repeatedly described defendant as a self-proclaimed “altar boy” and, sarcastically, as a “family man” and “paragon of virtue.” Moreover, in explaining that the People were not required to establish a motive for the crime, the prosecutor referred to the Oklahoma City bombings, which had taken place the week prior to closing arguments, stating: “Why did somebody blow up the building in Oklahoma? Does any motive make sense. Of course not. Can you give a logical reason for such a horrible illogical act? Of course not.” With one exception, defense counsel did not object to these remarks. Finally, the prosecutor instructed the jury that it was not necessary to consider the charges, stating:

“The charges here don’t matter anymore because the Defendant says he didn’t do it. He didn’t say the crimes weren’t committed . . .
“If the gun is in the Defendant’s hand, then he’s guilty of every crime charged, every crime. You don’t have to decide what was his state of mind, what did he intend to do, what did he really mean to do, because that’s conceded . . .
“So, the criminal charges now you don’t really have to deliberate very much over.”

Defendant was convicted and sentenced to 37V2 years to life in prison. On direct appeal, defendant was represented by court-appointed appellate counsel who raised several grounds for reversal but did not challenge trial counsel’s effectiveness. The Appellate Division affirmed the conviction (People v Townsley, 240 AD2d 955 [3d Dept 1997], lv denied 90 NY2d 943 [1997]). Thereafter, defendant’s pro se habeas corpus petition was denied (Townsley v Portuondo, 99 Civ 02476 [SD NY 2002]). In 2009, defendant moved to vacate his conviction under CPL 440.10, arguing that his trial counsel was conflicted and rendered ineffective assistance. County Court denied the motion on the ground that the claims should have been asserted on defendant’s direct appeal. In 2011, defendant petitioned for a writ of error coram nobis. In support of the petition, defendant submitted an affirmation from his former appellate counsel, who stated that “[a]t the time of Townsley’s appeal, [he] did not make any professional judgment not to raise the conflict issue” and “did not perceive the conflict of interest issue.” Counsel also stated that he “[could] not recall [his] thought process in connection with the omission from Townsley’s appellate brief of any ineffective assistance of trial counsel claims.” The Appellate Division denied defendant’s petition without opinion (2011 NY Slip Op 64401[U] [2011]). A Judge of this Court granted defendant leave to appeal (17 NY3d 956 [2011]) and the majority now affirms that order.

II

Criminal defendants “have a federal and state constitutional right to effective assistance of appellate counsel” (People v Stultz, 2 NY3d 277, 282 [2004]; see People v Borrell, 12 NY3d 365, 368 [2009]). Appellate advocates are held to the same standard of “meaningful representation” established in People v Baldi (54 NY2d 137, 147 [1981]) to evaluate the efficacy of trial counsel (see Stultz, 2 NY3d at 284 [explaining that it would be “inapt to have one standard for trials and another for appeals”]). A defendant claiming that he was not afforded meaningful representation “must demonstrate the absence of strategic or other legitimate explanations for counsel’s allegedly deficient conduct” (People v Caban, 5 NY3d 143, 152 [2005] [internal quotation marks omitted]). “Absent such a showing, it will be presumed that counsel acted in a competent manner and exercised professional judgment” (People v Rivera, 71 NY2d 705, 709 [1988]).

We have clarified the Baldi standard as applied to appellate counsel, stating:

“Appellate advocacy is meaningful if it reflects a competent grasp of the facts, the law and appellate procedure, supported by appropriate authority and argument. Effective appellate representation by no means requires counsel to brief or argue eveiy issue that may have merit. When it comes to the choice of issues, appellate lawyers have latitude in deciding which points to advance and how to order them” (Stultz, 2 NY3d at 285).

“The essential inquiry in assessing the constitutional adequacy of appellate representation is, then, not whether a better result might have been achieved, but whether, viewed objectively, counsel’s actions are consistent with those of a reasonably competent appellate attorney” (Borrell, 12 NY3d at 368).

Applying these standards, we have “recognize[d] that in making appellate arguments, attorneys must evaluate the performance of trial counsel and, when appropriate, raise claims of ineffective representation” (Stultz, 2 NY3d at 287). In People v Turner (5 NY3d 476 [2005]), for example, we declared an appellate attorney’s representation deficient where, despite an otherwise competent performance, the attorney elected not to argue that trial counsel was ineffective in failing to argue that the charge of manslaughter was time-barred (see id. at 480-481). We concluded that because the statute of limitations defense “was a winning argumentt,] trial counsel could not reasonably have thought that the defense was not worth raising; [therefore,] appellate counsel could not reasonably have thought that she should not argue trial counsel’s ineffectiveness” (id. at 481).

Here, defendant contends his appellate counsel was ineffective in failing to raise the issue that defendant’s trial counsel labored under a conflict of interest and was otherwise ineffective in failing to object to the prosecutor’s inflammatory statements. Consistent with Turner, the question of appellate counsel’s effectiveness depends on the strength of defendant’s underlying claims regarding his trial counsel’s allegedly deficient performance (see 5 NY3d at 481).

It has long been established that constitutionally adequate criminal representation must be “conflict-free and singlemindedly devoted to the client’s best interests” (People v Ennis, 11 NY3d 403, 409-410 [2008], quoting People v Harris, 99 NY2d 202, 209 [2002]; see also People v Ortiz, 76 NY2d 652, 657 [1990]). “Initially it is defense counsel’s burden to recognize the existence of a potential conflict of interest, to alert both the client and the court to the potential risks involved, and to obtain the client’s informed consent to counsel’s continued representation despite those risks” (People v McDonald, 68 NY2d 1, 8 [1986]; see People v Wandell, 75 NY2d 951, 952 [1990]; People v Lloyd, 51 NY2d 107, 111 [1980]). When a defendant claims on appeal that his or her trial counsel’s representation was compromised by a conflict of interest the court must conduct a two-part inquiry to determine first whether a conflict of interest exists, and second, whether the conflict operated on the representation (see People v Konstantinides, 14 NY3d 1, 10 [2009]; Ennis, 11 NY3d at 410; Ortiz, 76 NY2d at 657).

Defendant argues that his trial counsel became conflicted under the “advocate-witness” rule because the prosecutor insinuated during defendant’s cross-examination that the lawyers colluded with Nelson and defendant to concoct a false defense, creating a need for the lawyers to testify regarding the true nature of their meeting with Nelson. In my view, that would have been a winning argument on direct appeal.

“Recognizing that the roles of an advocate and of a witness are inconsistent,” the ethical rules governing the practice of law “ direct [ ] that a lawyer who ought to be called as a witness on behalf of his client shall withdraw from the conduct of the trial” (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 444 [1987], citing former Code of Professional Responsibility DR 5-102 [a]; DR 5-105 [a] [former 12 NYCRR 1200.21 (a); 1200.24 (a) (repealed eff Apr. 1, 2009)]). Accordingly, a lawyer whose testimony is likely to be necessary will be disqualified, with necessity measured by “such factors as the significance of the matters, weight of the testimony, and availability of other evidence” (id. at 446).

The majority rejects defendant’s claim, holding that “[t]he mere fact that defendant’s lawyers had met with Nelson, and that the jury knew of the meeting, did not make it either necessary or appropriate for the lawyers to testify” (majority op at 299). However, the prosecutor’s cross-examination did not merely elicit that a meeting took place. The prosecutor sought to bring out that “because Sims is [defendant’s] friend” defendant wanted to “clear . . . with him” that he was going to blame Sims for the shootings so that he “c[ould] get off.” What immediately followed were questions to establish that defendant and his attorneys met with Nelson on the eve of trial: “[D]id you not have a get-together with you and Simeon Nelson and your lawyers, on the morning of April 25th, for an hour and a half, at the Sullivan County Jail[?] . . . the same Simeon Nelson . . . who you say committed the murder, not you[?]” In my view, the clear import of that line of questioning was to insinuate that the purpose of the meeting was to gain Nelson’s cooperation in a fabricated theory of defense and that the lawyers played an active role in that scheme.

Because the entire theory of defense was that Nelson, rather than defendant, was the perpetrator, the People’s suggestion that the defense was manufactured with Nelson’s participation was highly significant. The majority opines, however, that “[njothing in the record indicates that the defense lawyers could have said anything about the meeting [in testimony] that would have helped their client” (majority op at 299). I disagree. If that were truly the case, defense counsel would not have felt compelled to attempt to repair the damage by asserting in summation that the attorneys “confronted Sim so that he would come clean” and to get “the real killer to come forward.” That the attorneys’ sworn testimony was necessary to address the People’s accusation is made plain by the prosecutor’s remark that “[n]o lawyer for Legal Aid got on the stand and testified. You have no evidence, evidence, that they confronted Sims.”

Despite this indication that defense counsel became conflicted under the advocate-witness rule, nothing in the record shows that the attorneys alerted the court or defendant to the existence of the conflict, or that the court undertook any inquiry into whether defendant knew the risks of continuing with his current representation and had waived those risks (see McDonald, 68 NY2d at 8). Given that the court failed to obtain defendant’s knowing, voluntary waiver of the conflict, appellate counsel would only have had to demonstrate that the conflict operated on the defense in order to obtain a reversal of defendant’s conviction (see Ortiz, 76 NY2d at 657). That standard could have been met in light of defense counsel’s attempt in summation to rebut the People’s allegations in what can fairly be categorized as their unsworn testimony.

The potency of this conflict as grounds for reversal “should have been apparent to any reasonable appellate counsel, and should have prompted that counsel to make an ineffective assistance argument” (Turner, 5 NY3d at 483). Indeed, appellate counsel’s affirmation that he “did not make any professional judgment not to raise the conflict issue” and, in fact, “did not perceive the conflict of interest issue,” demonstrates that his conduct lacked any strategic basis (see Rivera, 71 NY2d at 709). To be sure, appellate counsel drafted a thorough brief, raising six grounds for reversal and challenging the severity of defendant’s sentence. However, because conflict-free representation is nothing short of fundamental, I find appellate counsel’s failure to raise trial counsel’s ineffectiveness “so egregious and prejudicial as to [have] deprive [d] . . . defendant of his constitutional right” to meaningful appellate advocacy (Turner, 5 NY3d at 480 [internal quotation marks omitted]).

The omission of that argument on defendant’s direct appeal is all the more glaring when one considers trial counsel’s failure to object to numerous questionable remarks during the People’s summation. Specifically, defendant points to the prosecutor’s many comments on witness credibility, including his characterization of defendant’s testimony about his personal feelings toward Nelson—evidence of which could only come from defendant—as a “blatant lie” that should prompt the jury to “disregard everything that [defendant] has to say.” Defendant also cites the prosecutor’s efforts to assail defendant’s character (including repeated sarcastic references to defendant as an “altar boy”), his attempt to draw a parallel to the recent terrorist attack in Oklahoma City, and, perhaps most egregious, his instruction to the jury to disregard the elements of the charged offenses.

Under our relevant precedents, defendant’s trial counsel had clear bases for objecting to these inflammatory statements (see People v Bailey, 58 NY2d 272, 277 [1983] [“(A) prosecutor may not, either in the course of closing argument or even in a less argumentative trial context, express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence”] [internal quotation marks omitted]; People v Wright, 41 NY2d 172, 175 [1976] [condemning the prosecutor’s remarks regarding the defendant’s character as improper and “not fairly inferrable from the evidence”]; People v Flynn, 79 NY2d 879, 881-882 [1992] [declaring it “well settled that all the elements of an indicted crime which are not conceded by defendant or defendant’s counsel must be charged” to the jury]). The attorneys’ reticence in the face of this prejudicial rhetoric is not as clear-cut a basis for a finding of ineffectiveness as their apparent conflict; nonetheless, it only enhances what a reasonable appellate attorney should have identified as defendant’s winning ineffectiveness claim.

Accordingly, I would reverse the order of the Appellate Division and grant the coram nobis relief defendant seeks.

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

Order affirmed.

      . The Rules of Professional Conduct currently provide that
      “[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact unless ... (1) the testimony relates solely to an uncontested issue; (2) the testimony relates solely to the nature and value of legal services rendered in the matter; or (3) disqualification of the lawyer would work substantial hardship on the client” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7 [a]).

      . For this same reason, I cannot agree with the majority’s assertions— rejecting defendant’s additional claim that his counsel became conflicted by the prosecutor’s allegation of criminal wrongdoing—that the cross-examination “contained no suggestion of wrongdoing by defense counsel” and that “defendant’s appellate lawyer could reasonably have concluded that the record did not show that any such accusation was made” (majority op at 300).


source: Caselaw Access Project

author: Chief Judge Lippman.

license: Public Domain

text:
    [982 NE2d 609, 958 NYS2d 689]
    IRB-Brasil Resseguros, S.A., Respondent, v Inepar Investments, S.A., Defendant, and Inepar S.A. Industria e Construções, Appellant.
    Argued October 11, 2012;
    decided December 18, 2012

      POINTS OF COUNSEL

      Hoguet Newman Regal & Kenney, LLP, New York City (Frederic S. Newman and Helene R. Hechtkopf of counsel), for appellant.
    I. The decision below misread both New York General Obligations Law § 5-1401 and the choice-of-law provision contained in the guarantee. (City of Sterling Hgts. Police & Fire Retirement Sys. v Abbey Natl., PLC, 423 F Supp 2d 348; Carlos v Philips Bus. Sys., Inc., 556 F Supp 769; Colt Indus., Inc. v Fidelco Pump & Compressor Corp., 700 F Supp 1330; 600 Grant St. Assoc. Ltd. Partnership v Leon-Dielmann Inv. Partnership, 681 F Supp 1062; Indosuez Intl. Fin. v National Reserve Bank, 98 NY2d 238; Lake County v Rollins, 130 US 662; Hooper Assoc. v AGS Computers, 74 NY2d 487; Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574; Auten v Auten, 308 NY 155; Haag v Barnes, 9 NY2d 554.) II. A proper conflicts analysis requires that Brazilian law apply to the guarantee and in Brazil the guarantee is void. (Indosuez Intl. Fin. v National Reserve Bank, 98 NY2d 238; Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309; Pension Comm. of Univ. of Montreal Pension Plan v Banc of Am. Sec., LLC, 446 F Supp 2d 163; Hart v General Motors Corp., 129 AD2d 179; Edgar v MITE Corp., 457 US 624; Memphis Biofuels, LLC v Chickasaw Nation Indus., Inc., 585 F3d 917; Sanderlin v Seminole Tribe of Fla., 243 F3d 1282.)

      Skadden, Arps, Slate, Meagher & Flom LLP, New York City (Lea Haber Kuck, Elizabeth A. Hellmann, Sarah H. Yardeni and
      Amanda Raymond Kalantirsky of counsel), for respondent.
    I. The Appellate Division correctly concluded that, under General Obligations Law § 5-1401, New York law governs this dispute. (Scherk v Alberto-Culver Co., 417 US 506; Tosapratt, LLC v Sunset Props., Inc., 86 AD3d 768; Bank of Am. Natl. Trust & Sav. Assn. v Envases Venezolanos, S.A., 740 F Supp 260, affd sub nom. First Natl. Bank Md. v Envases Venezolanos, 923 F2d 843; McPhee v General Elec. Intl., Inc., 736 F Supp 2d 676; Economu v Borg-Warner Corp., 652 F Supp 1242, 829 F2d 311; Matter of Propulsora Ixtapa Sur, S.A. De C.V. [Omni Hotels Franchising Corp.], 211 AD2d 546; Mechoshade Corp. v Designed Performance Assoc., Inc., 11 Misc 3d 1081[A], 2006 NY Slip Op 50636[U]; Sun Forest Corp. v Shvili, 152 F Supp 2d 367; Philips Credit Corp. v Regent Health Group, Inc., 953 F Supp 482; 600 Grant St. Assoc. Ltd. Partnership v Leon-Dielmann Inv. Partnership, 681 F Supp 1062.) II. Even under a common-law conflict-of-laws analysis, New York law governs. (Matter of Allstate Ins. Co. [Stolarz—New Jersey Mfrs. Ins. Co.], 81 NY2d 219; Indosuez Intl. Fin. v National Reserve Bank, 98 NY2d 238; SNS Bank v Citibank, 7 AD3d 352; J. Aron & Co. v Chown, 231 AD2d 426; Pension Comm. of Univ. of Montreal Pension Plan v Banc of Am. Sec., LLC, 446 F Supp 2d 163; Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309; Welsbach Elec. Corp. v MasTec N. Am., Inc., 7 NY3d 624; Finucane v Interior Constr. Corp., 264 AD2d 618; Hart v General Motors Corp., 129 AD2d 179; Edgar v MITE Corp., 457 US 624.)
   OPINION OF THE COURT

Chief Judge Lippman.

The issue before the Court is whether a conflict-of-laws analysis must be undertaken when there is an express choice of New York law in the contract pursuant to General Obligations Law § 5-1401. We hold that the need for a conflict-of-laws analysis is obviated by the terms of the parties’ agreement.

Defendant Inepar S.A. Industria e Construgoes (IIC) is a Brazilian power company which held a 60% stake in defendant Inepar Investments, S.A. (Inepar), a corporation organized under the laws of Uruguay. IIC specializes in providing equipment and services for the generation, transmission, distribution, and consumption of electric power.

In September 1996, Inepar issued $30 million in Global Notes in the Guaranteed Euro Medium-Term Note Program (the Global Note Program) in order to raise capital and refinance debt previously incurred by Inepar and IIC. The Global Notes were denominated in U.S. dollars, issued on September 30, 1996, matured on October 1, 2001, and paid interest at a fixed rate of 9.9% per annum. A Fiscal Agency Agreement (the Agreement) between Inepar as issuer, IIC as guarantor, and the Chase Manhattan Bank as the fiscal and paying agent, governed the Global Note Program. IIC provided in a Guarantee to “unconditionally and irrevocably guarantee . . . the due and punctual payment of principal and interest” under the terms of the Global Notes. The Agreement stated that “[t]his Agreement, the Notes, and the Guarantees shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to conflict of laws principles.” The Guarantee provided that it would be “governed by, and ... be construed in accordance with, the laws of the State of New York.” New York was designated as the venue in the Guarantee, and thereunder IIC submitted to the jurisdiction of New York courts.

Plaintiff IRB-Brasil Resseguros, S.A. (IRB), a 50% state-owned corporation organized under the laws of Brazil, bought $14 million of Inepar’s Global Notes through brokers Smith Barney and Lehman Brothers. IRB received eight interest payments on the Global Notes between April 1997 and October 2000. The interest payments ceased after October 2000, and IRB never received the payment of the principal of $14 million from either IIC or Inepar.

IRB commenced the instant action against IIC and Inepar seeking payment of the Global Note principal and the unpaid accrued interest. Inepar defaulted in this action, and IIC moved for summary judgment, arguing that the Guarantee was void under Brazilian law because it was never authorized by IIC’s board of directors. IIC claimed that New York’s conflict-of-laws principles should apply, resulting in the application of Brazilian substantive law. IRB also moved for summary judgment. Supreme Court denied IIC’s motion and granted IRB summary judgment on the issue of liability only. A Special Referee appointed to hear and determine the issue of damages directed that judgment be entered against IIC in the sum of $27,772,409.86 and that interest on the award be paid at a 9.9% rate. Supreme Court ruled that “a choice-of-law clause in the agreement denoting that New York law governs the parties [’] rights and obligations, shall be given mandatory effect” under General Obligations Law § 5-1401 (2009 NY Slip Op 31723[U], *16 [Sup Ct, NY County 2009]).

The Appellate Division modified the judgment only to the extent of limiting the rate of postjudgment interest to the statutory rate of 9% per year, and otherwise affirmed (83 AD3d 573 [1st Dept 2011]). This Court granted leave to appeal (17 NY3d 717 [2011]), and we now affirm.

General Obligations Law § 5-1401 (1) states in relevant part:

“The parties to any contract . . . arising out of a transaction covering in the aggregate not less than two hundred fifty thousand dollars . . . may agree that the law of this state shall govern their rights and duties in whole or in part, whether or not such contract, agreement or undertaking bears a reasonable relation to this state.”

The Legislature passed the statute in 1984 in order to allow parties without New York contacts to choose New York law to govern their contracts. Prior to the enactment of section 5-1401, the Legislature feared that New York courts would not recognize “a choice of New York law [in certain contracts] on the ground that the particular contract had insufficient ‘contact’ or ‘relationship’ with New York” (Sponsor’s Mem, Bill Jacket, L 1984, ch 421 at 8). Instead of applying New York law, the courts would conduct a conflicts analysis and apply the law of the jurisdiction with “ ‘the most significant relationship to the transaction and the parties’ ” (Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309, 317 [1994] [quoting Restatement (Second) of Conflict of Laws § 188 (1)]). As a result, parties would be deterred from choosing the law of New York in their contracts, and the Legislature was concerned about how that would affect the standing of New York as a commercial and financial center (see Sponsor’s Mem, Bill Jacket, L 1984, ch 421). The Sponsor’s Memorandum states, “In order to encourage the parties of significant commercial, mercantile or financial contracts to choose New York law, it is important . . . that the parties be certain that their choice of law will not be rejected by a New York Court” (id. at 8). The Legislature desired for parties with multijurisdictional contacts to avail themselves of New York law if they so designate in their choice-of-law provisions, in order to eliminate uncertainty and to permit the parties to choose New York’s “well-developed system of commercial jurisprudence” (id. at 7).

General Obligations Law § 5-1402 (1) further provides:

“any person may maintain an action or proceeding against a foreign corporation, non-resident, or foreign state where the action or proceeding arises out of or relates to any contract, agreement or undertaking for which a choice of New York law has been made in whole or in part pursuant to section 5-1401 and which (a) is a contract, agreement or undertaking, contingent or otherwise, in consideration of, or relating to any obligation arising out of a transaction covering in the aggregate, not less than one million dollars, and (b) which contains a provision or provisions whereby such foreign corporation or non-resident agrees to submit to the jurisdiction of the courts of this state.”

Section 5-1402 (1) opened New York courts up to parties who lacked New York contacts but who had (1) engaged in a transaction involving $1 million or more, (2) agreed in their contract to submit to the jurisdiction of New York courts, and (3) chosen to apply New York law pursuant to General Obligations Law § 5-1401. The statutes read together permit parties to select New York law to govern their contractual relationship and to avail themselves of New York courts despite lacking New York contacts.

Applying General Obligations Law §§ 5-1401 and 5-1402 to the facts of the present case, we conclude that New York substantive law must govern, since the parties designated New York in their choice-of-law provision in the Guarantee and the transaction exceeded $250,000. IIC argues that the “whole” of New York law should apply, including New York’s common-law conflict-of-laws principles. IIC maintains that the Guarantee’s choice-of-law provision would have had to expressly exclude New York’s conflict-of-laws principles in order for New York substantive law to apply; otherwise, IIC claims that the court must engage in a conflicts analysis that results in the application of Brazilian substantive law. IIC’s argument is unpersuasive. Express contract language excluding New York’s conflict-of-laws principles is not necessary. The plain language of General Obligations Law § 5-1401 dictates that New York substantive law applies when parties include an ordinary New York choice-of-law provision, such as appears in the Guarantee, in their contracts. The goal of General Obligations Law § 5-1401 was to promote and preserve New York’s status as a commercial center and to maintain predictability for the parties. To find here that courts must engage in a conflict-of-laws analysis despite the parties’ plainly expressed desire to apply New York law would frustrate the Legislature’s purpose of encouraging a predictable contractual choice of New York commercial law and, crucially, of eliminating uncertainty regarding the governing law.

The Restatement (Second) of Conflict of Laws supports our conclusion that an express exclusion of New York’s conflict-of-laws rules is unnecessary. According to the Restatement (Second) of Conflict of Laws § 187 (3), “[i]n the absence of a contrary indication of intention, the reference [to the law of the state chosen by the parties] is to the local law of the state of the chosen law.” “[L]ocal law” is defined as “the body of standards, principles and rules, exclusive of its rules of Conflict of Laws” (Restatement [Second] of Conflict of Laws § 4 [1] [emphasis added]). Under the Restatement (Second), the parties’ decision to apply New York law to their contract results in the application of New York substantive law, not New York’s conflicts principles.

It strains credulity that the parties would have chosen to leave the question of the applicable substantive law unanswered and would have desired a court to engage in a complicated conflict-of-laws analysis, delaying resolution of any dispute and increasing litigation expenses. We therefore conclude that parties are not required to expressly exclude New York conflict-of-laws principles in their choice-of-law provision in order to avail themselves of New York substantive law. Indeed, in the event parties wish to employ New York’s conflict-of-laws principles to determine the applicable substantive law, they can expressly so designate in their contract.

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

Judges Ciparick, Graffeo, Read, Smith and Pigott concur.

Order affirmed, with costs.

       For the foregoing reasons, we find the difference between the language of the choice-of-law provision in the Agreement and the Guarantee to be inconsequential as a matter of law.


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

text:
    [983 NE2d 259, 959 NYS2d 464]
    The People of the State of New York, Appellant, v Miguel Garcia, Respondent.
    Argued October 18, 2012;
    decided December 18, 2012

      POINTS OF COUNSEL

      Robert T. Johnson, District Attorney, Bronx (Stanley R. Kaplan and Joseph N. Ferdenzi of counsel), for appellant.
    I. The Appellate Division erred as a matter of law in failing to rule that a police officer may, in the course of a valid traffic stop, ask if anyone in the vehicle has a weapon since such inquiry serves a legitimate protective purpose and is no more intrusive than ordering the occupants out of the vehicle regardless of any suspicion of criminality. (People v Alvarez, 308 AD2d 184; Pennsylvania v Mimms, 434 US 106; United States v Robinson, 414 US 218; Maryland v Wilson, 519 US 408; People v McLaurin, 70 NY2d 779; People v Banks, 85 NY2d 558; United States v Sharpe, 470 US 675; Florida v Royer, 460 US 491; People v Belton, 55 NY2d 49; People v Langen, 60 NY2d 170.) II. In the event that this Court determines that the question posed by the officer was improper, it should remand the case to the hearing court to rule on the People’s claim that the gun and rifle would have been inevitably discovered. (People v Fitzpatrick, 32 NY2d 499; People v Stith, 69 NY2d 313; People v Turriago, 90 NY2d 77; People v Robinson, 97 NY2d 341; People v LaFontaine, 92 NY2d 470.)

      Kramer Levin Naftalis & Frankel, LLP, New York City (Matan A. Koch of counsel), and Steven Banks, Legal Aid Society (Andrew C. Fine and Denise Fabiano of counsel), for respondent.
    I. The Appellate Division’s unanimous reversal of Mr. Garcia’s conviction was based upon its review of both the law and decisive facts and is beyond the jurisdiction of this Court to review. (People v Holland, 18 NY3d 840; People v McIntosh, 96 NY2d 521; People v Silvestry, 11 NY3d 902; People v Pines, 99 NY2d 525; People v Harrison, 57 NY2d 470; People v Allen, 9 NY3d 1013; People v Hollman, 79 NY2d 181.) II. The Appellate Division appropriately applied the well-established four-part framework announced by this Court in People v De Bour (40 NY2d 210 [1976]) and People v Hollman (79 NY2d 181 [1992]) in suppressing the evidence obtained from the unfounded common-law inquiry of Mr. Garcia. (People v Marsh, 20 NY2d 98; Pennsylvania v Mimms, 434 US 106; People v Robinson, 74 NY2d 773; People v Baumann & Sons Buses, Inc., 6 NY3d 404; People v Dercole, 52 NY2d 956; People v McAlpin, 17 NY3d 936; Matter of Patchogue-Medford Congress of Teachers v Board of Educ. of Patchogue-Medford Union Free School Dist., 70 NY2d 57; People v Battaglia, 86 NY2d 755; People v Faines, 297 AD2d 590; People v Jackson, 251 AD2d 349.)
   OPINION OF THE COURT

Ciparick, J.

On this appeal, we must determine whether a police officer may, without founded suspicion for the inquiry, ask the occupants of a lawfully stopped vehicle if they possess any weapons. We answer in the negative and, in so holding, necessarily conclude that the graduated framework set forth in People v De Bour (40 NY2d 210 [1976]) and People v Hollman (79 NY2d 181 [1992]) for evaluating the constitutionality of police-initiated encounters with private citizens applies with equal force to traffic stops.

L

On September 19, 2007, shortly after 10:00 p.m., Police Officers Cleri, Manning and Payton, on patrol in a marked police vehicle, pulled over defendant’s vehicle because of a defective rear brake light. In addition to defendant, who was behind the wheel, there were four male occupants in the vehicle. According to Officer Manning, the three passengers in the rear seat “were a little[ ] furtive,” kept “looking behind,” and “stiffened up” when he and Officer Cleri approached the vehicle. Officer Cleri also observed that the passengers “made furtive movements, [and] act[ed] nervous.” Officer Cleri asked defendant for his license and registration. Defendant complied with the request. Officer Cleri then asked if anyone in the vehicle had a weapon, and the passenger in the rear middle seat answered, “Yes, I . . . have a knife.” The officer directed the passenger to place the knife on the floor and to keep his hands in view. The passenger complied. The officers then ordered the occupants out of the vehicle and frisked each man as he exited the car. After the last passenger exited, Officer Manning saw what appeared to be “a gun or some sort of weapon” wedged between the front passenger seat and the door of the vehicle. With the aid of a flashlight, the officer retrieved and inspected the item, an air pistol.

All five occupants were handcuffed and taken to the police precinct. During a subsequent inventory search of the vehicle, Officer Cleri discovered a second air rifle located in the trunk. Defendant waived his Miranda rights and, after a 15 to 20 minute police interrogation, admitted that he was the owner of the air guns. An ensuing misdemeanor information charged defendant with two counts of misdemeanor possession of an air pistol or rifle (Administrative Code of City of NY § 10-131 [b]).

Defendant moved, as relevant to this appeal, to suppress the air rifles recovered from his vehicle, arguing that the officers had no basis for searching the car after it was stopped. Supreme Court granted defendant’s motion, holding that Officer Cleri’s question as to whether the occupants possessed any weapons required founded suspicion of criminality and that mere nervousness on the part of the occupants did not give rise to such suspicion. Supreme Court further determined that the People failed to demonstrate a very high probability that the officers would have inevitably discovered the air guns.

The People moved to reargue that portion of Supreme Court’s order that suppressed the physical evidence. Relying on People v Alvarez (308 AD2d 184 [1st Dept 2003], lv denied 3 NY3d 657 [2004]), the People argued that “an inquiry into weapon possession is not a greater intrusion than the right to remove the occupants from the car” and, therefore, does not require suspicion of criminality. Finding Alvarez persuasive, Supreme Court reversed its prior order and held that Officer Cleri’s inquiry into the presence of weapons was permissible even though the officer lacked a founded suspicion of criminality. The court did not reach the People’s alternative argument that the evidence was admissible under the inevitable discovery doctrine. Defendant pleaded guilty to two counts of the reduced charge of attempted unlawful possession of an air pistol or air rifle (Administrative Code of City of NY § 10-131 [b] [1]) and was sentenced to a conditional discharge. The Appellate Division reversed and vacated the judgment convicting defendant, granted defendant’s suppression motion and dismissed the information (People v Garcia, 85 AD3d 28 [1st Dept 2011]). The court held that Supreme Court erred in relying on Alvarez upon reargument, as that case was distinguishable, and that the trial court’s initial determination that the officer’s inquiry required founded suspicion was correct (see id. at 33-34).

A Judge of this Court granted the People’s application for leave to appeal (18 NY3d 883 [2012]) and we now modify.

IL

In light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car (see People v Robinson, 74 NY2d 773, 775 [1989], citing Michigan v Long, 463 US 1032, 1047-1048 [1983]; Pennsylvania v Mimms, 434 US 106 [1977]). While “[a] citizen does not surrender all the protections of the Fourth Amendment by entering an automobile” (New York v Class, 475 US 106, 112 [1986]), the United States Supreme Court declared in Mimms that the intrusion occasioned by requiring an occupant to “expose to view very little more of his person than is already exposed” is “de minimis” and “cannot prevail when balanced against legitimate concerns for the officer’s safety” (434 US at 111 [emphasis omitted]). Accordingly, we held in Robinson that “[b]rief and uniform precautionary procedures of this kind are not per se unreasonable and unconstitutional” under federal law (74 NY2d at 775).

The rule of Mimms and Robinson stands independently of that articulated in De Bour and Hollman and generally used to assess the reasonableness of police conduct toward private citizens in New York State. The De Bour ¡Hollman framework sets out four levels of police-citizen encounters and the attendant, escalating measures of suspicion necessary to justify each. At the initial level, a “request for information,” a police officer may approach an individual “when there is some objective credible reason for that interference not necessarily indicative of criminality” (De Bour, 40 NY2d at 223; see Hollman, 79 NY2d at 185). The request may “involve [ ] basic, nonthreatening questions regarding, for instance, identity, address or destination” (Hollman, 79 NY2d at 185). However, “[o]nce the officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing . . . the officer is no longer merely seeking information” (id..). This “common-law right of inquiry, a wholly separate level of contact, is ‘activated by a founded suspicion that criminal activity is afoot’ ” (id. at 184, quoting De Bour, 40 NY2d at 223). Although we have not yet addressed this issue, other appellate courts have characterized a police officer’s question as to whether an individual has a weapon as a common-law inquiry requiring founded suspicion of criminality (see People v Ward, 22 AD3d 368, 368 [1st Dept 2005]; People v Stevenson, 7 AD3d 820, 821 [2d Dept 2004]; People v Park, 294 AD2d 887, 888 [4th Dept 2002]).

Whether the “founded suspicion” requirement of De Bour and Hollman applies to a police officer’s ability to ask the occupants of a lawfully stopped vehicle if they are in possession of a weapon is debated on this appeal. Relying on the police safety justification discussed in Mimms and Robinson, the People ask us to adopt the rule that police officers may routinely pose that question regardless of any suspicion of criminality because the inquiry serves a legitimate protective purpose and is no more intrusive on the occupants’ privacy than an order to step out of the vehicle. While the People acknowledge that we have applied the De Bour/Hollman framework in the context of traffic stops (see People v Battaglia, 86 NY2d 755 [1995]), they argue that it is best suited for, and should generally be limited to, street encounters. Defendant, conversely, points out that in addition to this Court, all four departments of the Appellate Division have applied the De Bour/Hollman rules to traffic stops and argues that carving out the exception the People seek would be inconsistent with our search and seizure jurisprudence and would subject citizens to accusatory inquiry without even a minimal factual basis.

We have long placed paramount importance on promoting “ ‘predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens’ ” (see People v P.J. Video, 68 NY2d 296, 304 [1986], quoting People v Johnson, 66 NY2d 398, 407 [1985]). We have also “sought to provide and maintain ‘bright line’ rules to guide the decisions of law enforcement and judicial personnel who must understand and implement our decisions in their day-today operations in the field” (P.J. Video, 68 NY2d at 305). Contrary to the dissent, we believe these interests are better served by the evenhanded application of the De Bour/Hollman framework to street encounters and traffic stops alike. As noted, this Court and the courts of the Appellate Division have consistently applied De Bour and Hollman to traffic stops, demonstrating that the guidelines prove equally viable in that context (see Battaglia, 86 NY2d at 756; People v Faines, 297 AD2d 590, 593 [1st Dept 2002]; People v Jackson, 251 AD2d 349, 349 [2d Dept 1998]; People v Tejada, 270 AD2d 655, 656 [3d Dept 2000]; People v McCarley, 55 AD3d 1396, 1396-1397 [4th Dept 2008]). Moreover, the rule of Mimms and Robinson already guards against the unique danger of a partially concealed automobile occupant by allowing the officer to order occupants out of a car and readily observe their movements. Indeed, Mimms and Robinson place automobile occupants in the same position as pedestrians vis-a-vis police officers; the People’s proposed rule, on the other hand, would create disparate degrees of constitutional protections based on an individual’s mode of transport. Finally, by sanctioning, in the interest of safety, a suspicionless inquiry into whether the occupants of a stopped vehicle have a weapon, we may open the door to less precise inquiries with potential to raise significant privacy concerns. We decline to introduce uncertainty into this area of the law when it is not necessary to do so. Whether the individual questioned is a pedestrian or an occupant of a vehicle, a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot.

Having concluded that the standards of De Bour and Hollinan govern police-citizen encounters during lawful traffic stops, we turn to the question of whether the Appellate Division erred in holding that there was no founded suspicion to justify Officer Cleri’s inquiry. Our review of that mixed question of law and fact is limited to whether record evidence supports the Appellate Division’s determination (see People v Evans, 83 NY2d 934, 935 [1994]). As the evidence demonstrated only that the occupants of the vehicle appeared nervous, the court’s determination has record support (see People v Milaski, 62 NY2d 147, 156 [1984] [concluding that nervousness is not an indication of criminality]; People v Banks, 85 NY2d 558, 562 [1995]). Accordingly, we agree with that portion of the Appellate Division order that suppressed the air guns.

The People, however, further argue that in the event we determine that the officer’s question was improper we should remit the case to Supreme Court for consideration of the People’s alternative claim, asserted upon reargument, that officers would have inevitably discovered the disputed physical evidence. Because Supreme Court ruled in the People’s favor without reaching the People’s inevitable discovery argument, the People are entitled to a determination on that issue by Supreme Court, based on the evidence adduced at defendant’s suppression hearing.

Accordingly, the order of the Appellate Division should be modified by remitting the matter to Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed.

Smith, J. (dissenting).

I believe that New York is the only state in the union that forbids police officers to talk to people they meet in the street unless certain preconditions are met, and requires the suppression of evidence derived from a forbidden conversation. Today, the majority needlessly expands the already hyper-stringent rule of People v De Bour (40 NY2d 210 [1976]) and People v Hollman (79 NY2d 181 [1992]) by limiting a police officer’s ability to address a question to the occupants of a lawfully stopped automobile.

The United States Supreme Court has held that the Fourth Amendment is not violated “simply because a police officer approaches an individual and asks a few questions” (Florida v Bostick, 501 US 429, 434 [1991]). But we adopted a different rule in De Bour, and reaffirmed it in Hollman, “as a matter of State common law” (Hollman, 79 NY2d at 195-196). Under De Bour and Hollman, a police officer who approaches a citizen to request information must have “some objective credible reason” for doing so (De Bour, 40 NY2d at 223), while the more intrusive “common-law inquiry”—questioning which would lead the person approached “reasonably to believe that he or she is suspected of some wrongdoing” (Hollman, 79 NY2d at 185)—is permissible only where the officer has “a founded suspicion that criminal activity is afoot” (De Bour, 40 NY2d at 223). New York’s “unique” approach has been criticized by the leading treatise on searches and seizures as likely to result in “such confusion and uncertainty that neither police nor courts can ascertain with any degree of confidence precisely what it takes” to comply with its requirements (4 LaFave, Search and Seizure § 9.4 [e] at 466, 468-469 [4th ed 2004]). No other state, so far as I know, has adopted a similar rule, though cases in a few states hold that intrusive or pointed questioning may constitute a “seizure” triggering constitutional protections (State v Quino, 74 Haw 161, 840 P2d 358 [1992]; State ex rel. J.G., 320 NJ Super 21, 726 A2d 948 [1999]; State v Pitts, 186 Vt 71, 76-84, 978 A2d 14, 18-24 [2009]).

The De Bour rule has existed for 36 years, and respect for stare decisis might well deter us from abandoning it. No similar reason, however, compels us to extend it to traffic stops. This appears to be the first case in which we have ever relied on De Bour to suppress evidence obtained from the questioning of occupants in a lawfully stopped car. In People v Battaglia (86 NY2d 755 [1995]), on which the majority relies (majority op at 322-323), we denied suppression in a five-sentence memorandum that assumes the applicability of De Bour, but does not discuss the question.

Traffic stops are distinguishable from the street encounters between police officers and citizens to which De Bour and the cases following it have long been applied. Most obviously, the occupant of a stopped car has already been stopped: In De Bour terms, he or she has already been subjected to a level three temporary detention (see 40 NY2d at 223), and it seems paradoxical to suppress evidence because of the lesser intrusion created by a level one or level two inquiry. And, as the Appellate Division pointed out in People v Alvarez (308 AD2d 184, 187 [1st Dept 2003]), a police officer who stops a car is permitted to order all the occupants to get out (Pennsylvania v Mimms, 434 US 106 [1977]; People v Robinson, 74 NY2d 773 [1989], cert denied 493 US 966 [1989]). Why can he not subject them to the much lesser inconvenience of being asked some questions, which they are not legally obliged to answer?

The De Bour rule is an attempt to prevent police officers from taking unfair advantage of the deference that civilians ordinarily give to agents of law enforcement—“the tendency to submit to the badge” (De Bour, 40 NY2d at 219). I grant that this tendency exists, and indeed that there is something inherently coercive in many, probably most, forms of police inquiry. But it is utopian to believe that we can create a society in which no such coercion exists, or in which it is never exploited by police officers investigating crimes, or that, in such a society, reasonably efficient law enforcement would be possible. As a general rule, police officers who are not using or threatening force against citizens should be allowed to do their jobs without interference from the courts. The case of an officer who, having already lawfully stopped a vehicle, asks its occupants a question does not justify an exception to this general rule.

Chief Judge Lippman and Judges Graffeo, Read and Pigott concur with Judge Ciparick; Judge Smith dissents in an opinion.

Order modified by remitting to Supreme Court, Bronx County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

       For example, it would not be entirely unreasonable for an officer to believe it to be within the bounds of the People’s proposed rule to ask “Is there anything in the car I should know about?” The question may be posed in reference only to weapons but could just as easily encompass drugs, other contraband or any number of items a vehicular occupant may wish not to reveal.


author: Read, J.

text:
    [984 NE2d 893, 960 NYS2d 695]
    Yaakov Licci, a Minor, by His Father and Natural Guardian, Elihav Licci, and by His Mother and Natural Guardian, Yehudit Licci, et al., Appellants, v Lebanese Canadian Bank, SAL, Respondent, et al., Defendant.
    Argued October 10, 2012;
    decided November 20, 2012

      POINTS OF COUNSEL

      The Berkman Law Office, LLC, Brooklyn (Robert J. Tolchin of counsel), and Meir Katz of the Maryland bar, admitted pro hac vice, for appellants.
    I. The exercise of personal jurisdiction over Lebanese Canadian Bank, SAL is entirely consistent with federal constitutional due process limitations. (International Shoe Co. v Washington, 326 US 310; Hanson v Denckla, 357 US 235.) II. Defendant’s communications with and use of American Express Bank Ltd.’s services in New York to conduct business in New York constitute a “transact[ion]” of business for the purposes of CPLR 302 (a) (1). (Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65; Kreutter v McFadden Oil Corp., 71 NY2d 460; Chloe v Queen Bee of Beverly Hills, LLC, 616 F3d 158; George Reiner & Co. v Schwartz, 41 NY2d 648; Fischbarg v Doucet, 9 NY3d 375; Indosuez Intl. Fin. v National Reserve Bank, 98 NY2d 238; Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65.) III. The “articulable nexus” and “substantial relationship” tests under CPLR 302 (a) (1) require only that defendant’s transaction(s) and plaintiffs’ cause of action are related. (Kreutter v McFadden Oil Corp., 71 NY2d 460; SPCA of Upstate N.Y., Inc. v American Working Collie Assn., 18 NY3d 400; Johnson v Ward, 4 NY3d 516; Fischbarg v Doucet, 9 NY3d 375; McGowan v Smith, 52 NY2d 268; Talbot v Johnson Newspaper Corp., 71 NY2d 827; State of New York v Patricia II., 6 NY3d 160; Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443; Simonson v International Bank, 14 NY2d 281.) IV Alternatively, if this Court concludes that CPLR 302 (a) (l)’s “arising from” language denotes causation, it denotes mere “but-for” causation rather than proximate causation. (Boim v Holy Land Found. for Relief & Dev., 549 F3d 685.) V Alternatively, if this Court concludes that CPLR 302 (a) (l)’s “arising from” language denotes proximate causation, it should find an exception for cases arising from acts of terrorism. (Doundoulakis v Town of Hempstead, 42 NY2d 440.) VI. Plaintiffs’ factual allegations and the legal elements of their claims adequately relate to Lebanese Canadian Bank, SAL’s transactions in New York. (Kreutter v McFadden Oil Corp., 71 NY2d 460; Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443.) VII. Plaintiffs’ position is modest and does not open the proverbial “floodgates of litigation.”

      DLA Piper LLP, New York City (Jonathan D. Siegfried, Andrew Deutsch and Joshua Sprague of counsel), for respondent.
    I. The correspondent bank relationship alleged in the complaint does not constitute a transaction of business within the meaning of CPLR 302 (a) (1). (McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377; Ehrenfeld v Bin Mahfouz, 9 NY3d 501; Fischbarg v Doucet, 9 NY3d 375; Amigo Foods Corp. v

      Marine Midland Bank-N.Y., 39 NY2d 391; Faravelli v Bankers Trust Co., 85 AD2d 335, 59 NY2d 615; Nemetsky v Banque de Developpement de la Republique du Niger, 65 AD2d 748, 48 NY2d 962; Taub v Colonial Coated Textile Corp., 54 AD2d 660; Tamam v Fransabank SAL, 677 F Supp 2d 720; Daventree Ltd. v Republic of Azerbaijan, 349 F Supp 2d 736; Exchange Natl. Bank of Chicago v Empresa Minera Del Centro Del Peru S.A., 595 F Supp 502.) II. The complaint does not set forth a substantial relationship between the maintenance and use of Lebanese Canadian Bank, SAL’s correspondent bank account and plaintiffs’ claims. (Fischbarg v Doucet, 9 NY3d 375; Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65; Kreutter v McFadden Oil Corp., 71 NY2d 460; McGowan v Smith, 52 NY2d 268; SPCA of Upstate N.Y., Inc. v American Working Collie Assn., 18 NY3d 400; Frummer v Hilton Hotels Intl., 19 NY2d 533; Kramer v Vogl, 17 NY2d 27; Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574; Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65; Indosuez Intl. Fin. v National Reserve Bank, 98 NY2d 238.) III. Lebanese Canadian Bank, SAL is not subject to personal jurisdiction in New York under the alternate standards proposed by plaintiffs. (Monahan v Weichert, 82 AD2d 102; Samuels v American Cyanamid Co., 130 Misc 2d 175; Carter v Full Serv., Inc., 29 AD3d 342; Montgomery v Pena, 19 AD3d 288; Russac v Crest Hollow Country Club of Woodbury, 252 AD2d 548; Ehrenfeld v Bin Mahfouz, 9 NY3d 501; Parke-Bernet Galleries v Franklyn, 26 NY2d 13; Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65; Ferrante Equip. Co. v Lasker-Goldman Corp., 26 NY2d 280.)
   OPINION OF THE COURT

Read, J.

Plaintiffs are several dozen United States, Canadian, and Israeli citizens who reside in Israel and were injured, or whose family members were killed or injured, in rocket attacks allegedly launched by Hizballah during the Second Lebanon War in July and August 2006. Hizballah is designated by the United States Department of State as an Islamic terrorist organization. Plaintiffs brought suit in July 2008 in Supreme Court against the Lebanese Canadian Bank, SAL (LCB or the bank), a now defunct bank headquartered in Beirut, claiming that LCB, with the aid of codefendant American Express Bank (AmEx), assisted Hizballah in committing these illegal attacks by facilitating international monetary transactions through the Shahid Foundation (Shahid or the foundation), an entity the complaint identifies as part of the “financial arm” of Hizballah. After AmEx removed the lawsuit to the United States District Court for the Southern District of New York, plaintiffs filed an amended complaint in January 2009, bringing claims against LCB, depending on their citizenship, for primary and aiding- and-abetting liability for international terrorism under the Anti-Terrorism Act (United States citizens); aiding-and-abetting liability for genocide, war crimes and crimes against humanity in violation of international law, as made actionable by the Alien Tort Statute (ATS) (various Canadian and Israeli citizens); and negligence and breach of statutory duty in violation of Israeli law (all but four plaintiffs). Plaintiffs asserted personal jurisdiction over LCB under New York’s long-arm statute, which states at CPLR 302 (a) (1) as follows:

“(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:
“1. transacts any business within the state . . . ;” (emphases added).

In April 2009, LCB moved under Federal Rules of Civil Procedure rule 12 (b) (2) to dismiss the complaint for lack of personal jurisdiction, and under Federal Rule 12 (b) (6) for failure to state a claim upon which relief can be granted. Plaintiffs opposed LCB’s motion and submitted evidence linking Hizballah and Shahid, including a declaration from a former Israeli counter-terrorism official attesting to Shahid’s status as a financial front for Hizballah. LCB did not operate branches or offices, or maintain employees, in the United States. Its sole point of contact with the United States was a correspondent banking account with AmEx in New York. Plaintiffs allege that LCB used this correspondent account with AmEx to transfer several million dollars by means of “dozens” of international wire transfers on behalf of Shahid; that LCB knew that Hizballah was a terrorist organization and that Shahid was part of its financial arm; that the wire transfers “caused, enabled and facilitated the terrorist rocket attacks” that injured them and their families; and that LCB knew that Hizballah required wire transfer services in order to operate, plan, prepare for and carry out such terrorist attacks. Plaintiffs also claim that LCB’s official policy “continuously supports and supported Hizbollah and its anti-Israel program, goals and activities”; and that LCB carried out the wire transfers “to assist and advance Hizbollah’s goal of using terrorism to destroy the State of Israel.”

On March 31, 2010, the District Court Judge granted LCB’s motion to dismiss for lack of personal jurisdiction, concluding that plaintiffs had not made a prima facie showing under CPLR 302 (a) (1). First, the Judge concluded that LCB had not “transacted business” within the meaning of section 302 (a) (1) because “mere maintenance of [a] correspondent bank account with a financial institution in New York is not, standing alone, a sufficient basis to subject a foreign defendant to personal jurisdiction,” citing Tamam v Fransabank SAL (677 F Supp 2d 720, 727 [SD NY 2010]); and “active execution through New York of dozens of wire transfers totaling millions of dollars over a multi-year period” does not convert “mere maintenance” into “a ‘use’ of a correspondent account . . . sufficient to confer jurisdiction over a foreign bank” since “no meaningful distinction may be drawn between a foreign bank’s maintenance of a correspondent account to effect international wire transfers and its indiscriminate use of that account for that exact purpose” (704 F Supp 2d at 407-408).

Second, the District Court Judge opined that plaintiffs’ claims did not “arise from” LCB’s wire transfers in New York because no “articulable nexus or substantial relationship exist[ed] between LCB’s general use of its correspondent account for wire transfers through New York and the specific terrorist activities by Hizbollah underlying plaintiffs’ claims,” again citing Tamam (id. at 408; see n 7, supra). He considered it important that although “plaintiffs allege[d] that [the] transferred funds at issue ‘substantially increased’ Hizbollah’s ability to commit rocket attacks, including the ones in which plaintiffs were harmed[, they] themselves [were] not customers of [LCB or AmEx], nor did they have any financial interest in the wired funds” (id.). Next, the Judge observed that the harms suffered by plaintiffs and their family members were caused by rockets, not banking services. As a result, he concluded, “LCB’s maintenance or use of its correspondent bank account [was] too attenuated from Hizbollah’s attacks in Israel to assert personal jurisdiction based solely on wire transfers through New York” (id.).

Additionally, the District Court Judge denied plaintiffs’ “alternative request” to conduct limited jurisdictional discovery because “[t]he Court’s finding, that LCB’s correspondent banking activities [were] insufficient to subject it to jurisdiction, renders the proposed discovery sought by plaintiffs futile” (id.). Having granted LCB’s motion to dismiss the complaint for lack of personal jurisdiction, the Judge did not consider whether the pleadings stated a cognizable legal claim.

Plaintiffs appealed the dismissal to the United States Court of Appeals for the Second Circuit. Noting that in order to determine whether personal jurisdiction exists under CPLR 302 (a) (1), “ ‘a court must decide (1) whether the defendant “transacts any business” in New York and, if so, (2) whether [the] cause of action “aris[es] from” such a business transaction’ ” (673 F3d 50, 60 [2012], quoting Best Van Lines, Inc. v Walker, 490 F3d 239, 246 [2d Cir 2007]), the Second Circuit has asked us to resolve two questions of New York law regarding this two-prong jurisdictional analysis, which we now consider.

Certified Question No. 1
“(1) Does a foreign bank’s maintenance of a correspondent bank account at a financial institution in New York, and use of that account to effect ‘dozens’ of wire transfers on behalf of a foreign client, constitute a ‘transaction]’ of business in New York within the meaning of N.Y. C.RL.R. § 302(a)(1)?” (673 F3d at 66.)

In asking us this, the Second Circuit observed that we had “apparently not yet addressed the precise question” of “whether a foreign bank’s frequent use of a correspondent account in New York to effect international wire transfers on behalf of an overseas client is an act directed with sufficient purposefulness at New York to constitute a transaction of business” under our long-arm statute (673 F3d at 62-63). As the court recognized, though, we have discussed similar or related issues in several decisions, first and perhaps most importantly in Amigo Foods Corp. v Marine Midland Bank-N.Y. (39 NY2d 391 [1976]; see also Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574 [1980] [upholding personal jurisdiction over defendant public university located in Texas based upon use of a correspondent bank in New York to carry out a transaction with plaintiff New York securities dealer where other contacts existed—i.e., the disputed “reverse repurchase” agreements involved phone calls and visits to plaintiffs office in New York, and the placing of a securities order and delivery and payment in that office]; Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65 [1984] [quasi-in-rem jurisdiction exists where defendant Bahamian bank regularly used its New York correspondent account to accomplish its international banking business, including the loan transaction at issue]; Indosuez Intl. Fin. v National Reserve Bank, 98 NY2d 238 [2002] [upholding personal jurisdiction over defendant Russian bank that maintained a bank account in New York and regularly used it in connection with currency-exchange options transactions, thus establishing a “course of dealing” in New York]).

Plaintiff Amigo Foods Corporation (Amigo), a New York wholesaler, contracted to buy several truckloads of potatoes from defendant E. H. Parent, Inc. (Parent), a Maine potato grower and distributor; payment was to be made at or through Aroostook Trust Company (Aroostook), a Maine bank. Amigo obtained a letter of credit in New York from defendant Marine Midland Bank (Marine), which delivered it to Aroostook’s New York correspondent, defendant Irving Trust Company (Irving). Amigo alleged that Parent refused to accept payment and thus breached the contract or, alternatively, that the banks wrongfully failed to deliver and pay Parent in accordance with the terms of the letter of credit. Parent, for its part, claimed never to have received payment and cross-claimed against the banks.

Aroostook made a pre-answer motion to dismiss for lack of personal jurisdiction, stating in its supporting affidavit that “ ‘[b]eyond the notification to its depositor of the arrival of the Letter of Credit and the notification to Irving . . . , who had forwarded the Letter of Credit. . . , [it] took no action, and had none to take’ ”; and, therefore, “did not act in New York out of which the cause of action arose” (Amigo Foods, 39 NY2d at 394). In opposition, Amigo alleged that Aroostook and Irving were agents or, alternatively, their relationship was uncertain and so depositions were warranted on the question of jurisdiction. Supreme Court agreed that depositions were called for, but the Appellate Division, with two Justices dissenting, reversed and granted Aroostook’s motion to dismiss, concluding that Irving,

“as Aroostook’s correspondent, was not the latter’s agent in New York, but, rather, these banks were, at most, independent contractors with respect to each other. Aroostook, itself, not having transacted any business here and not having purposefully interjected itself into the transactions here and Irving, not constituting its agent here, it follows that there was no transaction of business in New York by Aroostook.” (48 AD2d 628, 629 [1st Dept 1975] [citations omitted].)

We reversed, holding that discovery should go forward because Amigo “alleged that an agency relationship exist[ed] between Aroostook and Irving and, from the pleadings and affidavits, it [was] obvious that their position [was] not frivolous” (39 NY2d at 395). Notably, in so holding we rejected both Amigo’s position “that the undisputed fact that Irving [was] the New York correspondent for Aroostook [was] sufficient, in and of itself, to resolve the jurisdictional issue in [its] favor”; and Aroostook’s counter, adopted by the Appellate Division, “that correspondent banks [were], at best, independent contractors with respect to each other and, thus, that their relationship cannot serve as a jurisdictional basis” (id. at 395-396). It was in this context that we stated as follows:

“In sum, we conclude that, standing by itself, a correspondent bank relationship, without any other indicia or evidence to explain its essence, may not form the basis for long-arm jurisdiction under [CPLR 302 (a) (1)]” (id. at 396).

Disclosure proceedings, we concluded, should reveal “whether Aroostook purposely availed itself of the privilege of conducting activities in New York thereby invoking the benefits and protections of its laws . . . and, particularly, the precise nature of its relationship with Irving vis-a-vis the handling of letters of credit” (id., citing Hanson v Denckla, 357 US 235, 253 [1958]).

After discovery was completed, Aroostook again unsuccessfully moved to dismiss. The Appellate Division unanimously reversed (61 AD2d 896 [1st Dept 1978]), and this time we affirmed (46 NY2d 855 [1979]). The facts disclosed during discovery, as related by the Appellate Division, showed that Aroostook had a long-standing correspondent banking relationship with Irving, with whom Aroostook maintained a relatively small checking account. As Parent was making demands for payment, Amigo directed Marine to wire funds to Parent for its account, and Marine, in the interest of speed, chose to deposit those funds with Irving in New York to the credit of Aroostook for the benefit of Parent. Irving informed Aroostook of the deposit; Aroostook, in turn, informed Parent; Parent directed Aroostook to reject the funds; and Aroostook instructed Irving to do so. The Appellate Division remarked that

“[o]n the previous appeal, the Court of Appeals said: ‘Standing by itself, a correspondent bank relationship, without any other indicia or evidence to explain its essence, may not form the basis for long-arm jurisdiction under [CPLR 302 (a) (1)].’ In our view, disclosure has revealed nothing which forms the basis for long-arm jurisdiction over Aroostook in the present case. In particular, Aroostook has not ‘purposely availed itself of the privilege of conducting activities in New York thereby invoking the benefits and protections of its laws.’ On the contrary, it has passively and unilaterally been made the recipient of funds which at its customer’s direction it has declined” (61 AD2d 896, 897 [citations omitted; emphasis added]).

As the Second Circuit commented, the general statement in Amigo Foods that a correspondent banking relationship “standing by itself’ is insufficient to establish long-arm jurisdiction has been interpreted by “[s]ome New York State courts” to mean that “a nondomiciliary defendant’s maintenance and use of such an account in New York, standing alone, [is] ipso facto insufficient to support personal jurisdiction under the New York long-arm statute” (673 F3d at 64 [emphasis added]). Belatedly, federal district court judges in the Circuit have cited these state court decisions and the general statement in Amigo Foods “to conclude that the ‘mere maintenance’ of a correspondent bank account in New York does not suffice to establish personal jurisdiction there” (id. at 65).

The Second Circuit then went on to explain that “[a]ssuming for present purposes that this ‘mere maintenance’ principle is a faithful articulation of [the] decision in Amigo Foods,” that principle’s application to the facts of this case is unclear because there are arguably several interpretations of the qualifier “mere”—i.e., “that it is intended to distinguish the ‘maintenance’ of an account from its active use,” as plaintiffs suggest; “that other types of contacts with the forum—such as borrowing money in New York, signing notes payable in New York, or negotiating agreements in New York—are also required”; or “that a transaction of business in New York will not suffice unless the plaintiffs cause of action also ‘arise[s] from’ that transaction—in other words that the second prong of the test must also be satisfied” (id. at 65). The court then suggested that perhaps

“Amigo Foods [was] best read as standing for the proposition that the first prong of the long-arm jurisdiction test under [CPLR 302 (a) (1)] . . . may be satisfied by the defendant’s use of a correspondent bank account in New York, even if no other contacts between the defendant and New York can be established, if the defendant’s use of that account was purposeful” (id. at 66).

This is an accurate summing up of New York law. The jurisdictional inquiry under CPLR 302 (a) (1) necessarily requires examination of the particular facts in each case. And although determining what facts constitute “purposeful availment” is an objective inquiry, it always requires a court to closely examine the defendant’s contacts for their quality (see Fischbarg v Doucet, 9 NY3d 375, 380 [2007]). Thus, in Amigo Foods we focused on the nature and extent of Aroostook’s involvement in the deposit of funds intended to pay Parent in the correspondent account that Aroostook maintained at Irving in New York. As discovery revealed, Aroostook’s purported use of the account in this transaction, the sole potential basis for personal jurisdiction, was essentially adventitious—i.e., it was not even Aroostook’s doing.

In the banking context, the requisite inquiry under CPLR 302 (a) (l)’s first prong may be complicated by the nature of interbank activity, especially given the widespread use of correspondent accounts nominally in New York to facilitate the flow of money worldwide, often for transactions that otherwise have no other connection to New York, or indeed the United States. As a result, determining in an individual case whether a foreign bank’s maintenance and use of a correspondent account is purposeful or coincidental may often prove more difficult than was the case in Amigo Foods, once the facts there were established. Nonetheless, complaints alleging a foreign bank’s repeated use of a correspondent account in New York on behalf of a client—in effect, a “course of dealing” (see Indosuez, 98 NY2d at 247)—show purposeful availment of New York’s dependable and transparent banking system, the dollar as a stable and fungible currency, and the predictable jurisdictional and commercial law of New York and the United States.

Certified Question No. 2
“(2) Do the plaintiffs’ claims under the Anti-Terrorism Act, the A[lien] T[ort] S[tatute],[] or for negligence or breach of statutory duty in violation of Israeli law, ‘aris[e] from’ LCB’s transaction of business in New York within the meaning of N.Y. C.P.L.R. § 302(a)(1)?” (673 F3d at 74.)

We have interpreted the second prong of the jurisdictional inquiry to require that, in light of all the circumstances, there must be an “articulable nexus” (McGowan v Smith, 52 NY2d 268 [1981]) or “substantial relationship” (Kreutter v McFadden Oil Corp., 71 NY2d 460 [1988]) between the business transaction and the claim asserted. We have consistently held that causation is not required, and that the inquiry under the statute is relatively permissive (see McGowan, 52 NY2d at 272; Kreutter, 71 NY2d at 467). But these standards connote, at a minimum, a relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former, regardless of the ultimate merits of the claim. In effect, the “arise-from” prong limits the broader “transaction-of-business” prong to confer jurisdiction only over those claims in some way arguably connected to the transaction. Where this necessary relatedness is lacking, we have characterized the claim as “too attenuated” from the transaction, or “merely coincidental” with it (see Johnson v Ward, 4 NY3d 516, 520 [2005]).

Accepting the complaint’s allegations as true, LCB’s use of its AmEx correspondent account to transfer money for Shahid provided money for Hizballah to carry out terrorist violence, including the 2006 rocket attacks. Application of the second prong of the jurisdictional inquiry varies according to the nature and elements of the particular causes of action pleaded; here, LCB’s alleged breach of various statutory duties. As personal jurisdiction is fundamentally about a court’s control over the person of the defendant, the inquiry logically focuses on the defendant’s conduct. Again, the complaint alleges that LCB engaged in terrorist financing by using its correspondent account in New York to move the necessary dollars. Taken as true, LCB arguably thereby violated duties owed to plaintiffs under the various statutes asserted as a basis for subject matter jurisdiction. Furthermore, the alleged breaches occurred when LCB used the New York account. Again, whether or not plaintiffs can prove these allegations at trial, including showing links between Shahid and Hizballah, and whether or not these allegations state a claim under the various statutes, the pleadings establish the “articulable nexus” or “substantial relationship” necessary for purposes of personal jurisdiction.

While it may be that LCB could have routed the dollar transactions on behalf of Shahid elsewhere, the fact that LCB used a New York account “dozens” of times indicates desirability and a lack of coincidence. Presumably, using the AmEx account was cheaper and easier for LCB than other options, and whatever financial and other benefits LCB enjoyed as a result allowed the bank to retain Shahid as a customer and to support its allegedly terrorist activities and programs.

In sum, repeated use of the correspondent account shows not only transaction of business, but an articulable nexus or substantial relationship between the transaction and the alleged breaches of statutory duties. LCB did not route a transfer for a terrorist group once or twice by mistake. Rather, plaintiffs allege that LCB deliberately used a New York account again and again to effect its support of Shahid and shared terrorist goals. Not all elements of the causes of action pleaded are related to LCB’s use of the correspondent account. And the specific harms suffered by plaintiffs flowed not from LCB’s alleged support of a terrorist organization, but rather from rockets. Yet CPLR 302 (a) (1) does not require that every element of the cause of action pleaded must be related to the New York contacts; rather, where at least one element arises from the New York contacts, the relationship between the business transaction and the claim asserted supports specific jurisdiction under the statute.

Accordingly, the certified questions should be answered in the affirmative.

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

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.27 of the Rules of Practice of the New York State Court of Appeals, and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified questions answered in the affirmative.

      . In February 2011, the United States Department of the Treasury designated LCB as a “primary money laundering concern” (76 Fed Reg 9403 [Feb. 17, 2011]). The privately-owned bank subsequently merged with the Lebanese subsidiary of the French bank, Société Générale SA.

      . “Shahid,” translated as “Martyr,” allegedly provides support for Hizballah fighters and their surviving families. There is evidence the foundation is involved with the overall financing of Hizballah’s activities.

      . “Any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees” (18 USC § 2333 [a]).

      . “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States” (28 USC § 1350).

      . “[A] person who by his negligence causes damage to another commits a civil wrong” (Israeli Civil Wrongs Ordinance § 35); “Breach of statutory obligation ... (a) A person commits a breach of a statutory obligation if he does not comply with an obligation imposed on him under any enactment [if intended for the benefit or protection of another person, which means] (b) . . . it is intended for the benefit or protection of that person, or for the benefit or protection of persons in general or of persons of a category or definition to which that certain person belongs” {id. § 63).

      . AmEx also moved to dismiss under Federal Rule 12 (b) (6). Plaintiffs, in their amended complaint, pleaded a single cause of action against AmEx for negligence under Israeli law. The District Court Judge decided there was no actual conflict between the applicable New York and Israeli substantive law, and the pleadings were insufficient to state a negligence claim against AmEx under New York law (704 F Supp 2d 403, 408-411 [SD NY 2010]). The Second Circuit affirmed solely on the basis that, even assuming there was no actual conflict, a choice-of-law analysis required application of New York law to plaintiffs’ negligence cause of action against AmEx, and plaintiffs conceded that this claim failed if New York law applied (672 F3d 155 [2012]).

      . In Tamam, which LCB mentions throughout its brief, Israeli citizens who were injured or whose family members were killed in the missile attacks during the Second Lebanon War sued five Lebanese banks (not including LCB) under the ATS. The plaintiffs alleged that the banks’ provision of correspondent banking services to various parties associated with Hizballah constituted terrorism financing as well as conspiracy and aiding and abetting Hizballah to commit genocide, crimes against humanity, war crimes and terrorism. The court dismissed the complaint for lack of personal jurisdiction, finding first that the Lebanese banks did not transact business in New York because the plaintiffs (unlike plaintiffs here) did not allege actual transfers from Hizballah front group accounts in Lebanon through correspondent banks in New York; specifically, the “only one relevant jurisdiction^ allegation” was that, “ ‘[o]n information and belief, [the Lebanese banks] processed funds and cleared U.S. dollars for [the] direct benefit [of the Islamic Resistance Support Organization (IRSO), alleged to be a Hizballah-controlled entity tasked with raising funds to purchase weapons,] through the United States in this District’ ” (677 F Supp 2d at 727). Acknowledging that “[w]hile the processing of IRSO funds through correspondent banks may indicate that [the Lebanese banks] purposefully availed themselves of business opportunities in New York,” the court concluded that “the use of correspondent accounts in New York nonetheless [could not] form the basis of personal jurisdiction because the Amended Complaint [did] not set forth a ‘substantial relationship’ between the correspondent bank accounts and Hizbullah’s terrorist activity” (id.); specifically, “the events giving rise to the physical injuries and deaths for which Plaintiffs [sought] redress [were] missile attacks in Israel, not funds transfers in New York” (id. at 728). The Tamam plaintiffs did not appeal the dismissal of their complaint.

      . Plaintiffs did not appeal the lower court’s denial of their alternative request for jurisdictional discovery.

      . As the Second Circuit pointed out, the United States Supreme Court will soon decide whether the ATS provides subject matter jurisdiction for federal courts to entertain civil actions against corporations for violations of customary international law (see Kiobel v Royal Dutch Petroleum Co., 621 F3d 111 [2d Cir 2010], cert granted 565 US —, 132 S Ct 472 [2011]). Depending on the outcome, Kiobel may render moot the question of whether personal jurisdiction exists over plaintiffs’ ATS claim (see 673 F3d at 73).

      . Indeed, in framing its inquiry about the second prong, the Second Circuit remarked that although the lower court correctly observed that the rockets launched by Hizballah were “the alleged immediate cause” of the damages claimed, plaintiffs were suing LCB “for its role in the transfer of funds to Hizballahf, and] the jurisdictional nexus analysis directs [the court] to consider the relationship between . . . plaintiffs’ claims and LCB’s alleged transactions in New York,” not “reach[ ] a conclusion that properly bears upon the ultimate merits of plaintiffs’ claims, which seek to hold LCB liable for damages allegedly inflicted by Hizballah” (673 F3d at 67-68).