text:
    [975 NE2d 475, 951 NYS2d 94]
    Amine Baba-Ali, Appellant-Respondent, v State of New York, Respondent-Appellant.
    Argued May 29, 2012;
    decided June 28, 2012

      POINTS OF COUNSEL

      Harris & Panels, Syracuse (Michael W. Harris of counsel), Bond, Schoeneck & King, PLLC, Albany (Carl Rosenbloom of counsel), and Law Office of Peter Wessel, PLLC, New York City (Peter Wessel of counsel), for appellant-respondent.
    I. Under the circumstances of this case, the reduction of nonpecuniary damages to $1,000,000 by the Appellate Division was legally erroneous and an abuse of discretion. (Harris v State of New York, 38 AD3d 144; Carter v State of New York, 139 Misc 2d 423; Reed v City of New York, 304 AD2d 1; Donlon v City of New York, 284 AD2d 13.) II. Claimant’s uncontradicted evidence in the record conclusively established his claims for past lost earnings and impairment of future earning capacity. (Thompson v State of New York, 63 AD3d 825; Lodato v Greyhawk N. Am., LLC, 39 AD3d 494; Walsh v State of New York, 232 AD2d 939; Karagiannis v New York State Thruway Auth., 187 AD2d 1009; Hoerner v Chrysler Fin. Co., L.L.C., 21 AD3d 1254; McKay v Ciani, 288 AD2d 587; Matter of Commissioner of Social Servs. v Amine B., 223 AD2d 703; Kotler v State of New York, 255 AD2d 429; Alferoff v Casagrande, 122 AD2d 183; Brock v State of New York, 77 AD2d 670.)

      Eric T. Scheiderman, Attorney General, Albany (Cecelia C. Chang, Barbara D. Underwood, Andrew D. Bing, Alison J. Nathan and Robert M. Goldfarb of counsel), for respondent-appellant.
    I. The Appellate Division’s summary judgment liability determination should be reversed. (Britt v State of New York, 260 AD2d 6, 95 NY2d 753; Leka v State of New York, 16 AD3d 557; Tyson v State of New York, 182 Misc 2d 707, 280 AD2d 934; Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330; Reno v Bull, 226 NY 546; Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439; Alvarez v Prospect Hosp., 68 NY2d 320; Ferrante v American Lung Assn., 90 NY2d 623; Brunetti v Musallam, 11 AD3d 280; United States v Agurs, 427 US 97.) II. The Appellate Division’s damages determinations should not be disturbed. (Donlon v City of New York, 284 AD2d 13; People v Paige, 16 NY3d 816; Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492; Bernardine v City of New York, 294 NY 361; Duzon v State of New York, 244 AD2d 189; Auer v State of New York, 289 AD2d 626; Doe v State of New York, 189 AD2d 199; Carter v State of New York, 139 Misc 2d 423, 154 AD2d 642; Kotler v State of New York, 255 AD2d 429.)
   OPINION OF THE COURT

Chief Judge Lippman.

Claimant in this action to recover for unjust conviction and imprisonment pursuant to section 8-b of the Court of Claims Act was convicted in December 1989, after a nonjury trial, of having committed various sex offenses against his daughter in December 1987 and February 1988 when the child was four years of age. The abuse allegedly occurred during claimant’s weekend visits with the child; claimant and the child’s mother were at the time estranged and in the middle of acrimonious divorce proceedings.

The most serious of the crimes for which claimant was convicted—rape, incest and sodomy—involved either genital or anal penetration. That element was established before the grand jury and at trial exclusively through the testimony of Dr. Nadine Sabbagh. On examining the child some 3V2 months subsequent to the alleged abuse pursuant to a referral by a Queens County Sex Crimes Squad detective, Dr. Sabbagh found numerous signs of anal and vaginal penetration and noted various genital abnormalities, most prominent among them that the child’s hymen was missing. In her trial testimony, she stated repeatedly and emphatically that “there was definitely no hymen,” and estimated that the child had been abused within 12 to 18 weeks of her examination “give or take four to six weeks,” a period possibly encompassing claimant’s weekends with the child the preceding December and February—the last unsupervised visits with his daughter claimant would have.

In January 1992, the Appellate Division, on direct review, reversed claimant’s judgment of conviction and ordered a new trial (see People v Baba-Ali, 179 AD2d 725 [2d Dept 1992]). The reversal was premised upon the manner in which certain evidently exculpatory evidence had been dealt with, both by the trial prosecutor and defense counsel. That evidence consisted of a report of a full and evidently lengthy medical examination of claimant’s daughter conducted by Dr. Daniel Hyman at the Children’s Hospital of Philadelphia (CHOP) on February 15, 1988—just over a week after the most recent of the charged sex offenses—specifically to ascertain whether the child had been sexually abused, as her mother and pediatrician suspected. No evidence of abuse was found. Indeed, Dr. Hyman made particular note in the hospital record of the absence of any external sign of abuse in the child’s rectal and genital regions. The Appellate Division found that the CHOP records had “not even” been presented by the prosecutor to the grand jury (179 AD2d at 730) and had been inexcusably withheld from defense counsel until the eve of trial, even though they had been ordered to be disclosed and had been in the prosecutor’s possession for months (see id. at 729-730). The Court found as well that defense counsel had been ineffective for failing timely to seek compliance with the trial court’s order directing the People to turn over a complete set of medical records (see id. at 729), and for failing, once he had been given the CHOP records, to attempt to secure the testimony of Dr. Hyman or another independent expert (see id.). At the same time, however, the Court signaled its understanding that the prejudicial consequence of counsel’s ineptitude had been heightened by the cited prosecutorial misconduct: ‘ [h]ad the defendant known of the existence of those medical records well in advance of the trial, as he should have, there is a ‘reasonable possibility’ that the outcome of the trial would have been different (see People v Vilardi, 76 NY2d 67, 77)” (id. at 730).

The People moved to amend the Appellate Division’s decision to delete its prosecutorial misconduct rationale. In submissions by the attorney who handled the matter on appeal and the trial prosecutor, the People stated that the last paragraph of the decision, in which that rationale was set forth, was superfluous and based on factual errors. They said it was not true that the prosecutor withheld the CHOP records from defendant’s attorney for months and asserted that the existence of the records had been known to defendant long before the trial. In this connection, the trial prosecutor affirmed that she had turned over the CHOP records shortly after she received them in February 1989, some 10 months before the trial. She acknowledged giving defendant’s attorney copies of the records just prior to trial, but explained that she did so because defendant’s attorney had misplaced some of the originally turned over documents. The appeals bureau affiant apologetically offered that he may have inadvertently misled the appellate panel by representing that the records had been turned over just before trial; he claimed not to have known at the time of the appeal’s briefing and argument that the records had, in addition, been given to defendant months in advance of trial.

Defendant’s appellate counsel filed a reply, noting, inter alia, that there was no documentary confirmation (i.e., on the voluntary disclosure form or in the court minutes) that the CHOP records had, in fact, been turned over in February 1989; that, if those records had then been turned over, appellate counsel, who was intimately familiar with the matter having recently handled the People’s response to defendant’s CPL 440.10 motion, would surely have been aware of it; and that there was reason to suppose that the People were in possession of the CHOP records well before February 1989, since in responding to defendant’s motion to dismiss the indictment by reason of the People’s failure to present exculpatory evidence to the grand jury, the trial prosecutor did not represent that she did not have the CHOP records and, accordingly, could not present them, but rather urged that the records were not exculpatory.

The motion to amend was denied by the Appellate Division without explanation by order dated March 12, 1992.

Before retrying claimant, the People, in May 1992, had the child reexamined at New York Hospital by Dr. Philip W Hyden, Director of the hospital’s Child Protection Team. He reported that, although there were some genital abnormalities possibly indicative of prior abuse, “the presence of the hymen is in direct conflict with a previous examination [that of Dr. Sabbagh] which indicated its complete absence.” Thereafter, the indictment was dismissed on the People’s motion.

Following his release from prison, claimant, in May 1993, commenced this action. The State moved to dismiss upon the ground that claimant’s wrongful conviction had not been found to have been actionably eventuated. In this connection the State pointed out that section 8-b of the Court of Claims Act would only permit recovery in a situation such as this one, where there had been a reversal and a remand for a new trial, if the claimant’s conviction had been reversed and the indictment dismissed on a ground set forth in CPL 440.10 (1) (a), (b), (c), (e) or (g) (Court of Claims Act § 8-b [3] [b]; [5] [b]). It argued that claimant’s judgment of conviction was reversed principally on the ground of ineffective assistance of counsel—one not included in section 8-b’s enumeration of permissible CPL 440.10 predicates—and that the Appellate Division’s other ground for reversal—that there had been a Brady violation—also did not correspond to a cognizable section 8-b predicate.

Claimant opposed the State’s motion and cross-moved for summary judgment as to liability, arguing that the Appellate Division’s reversal along with certain documentary evidence, established that claimant’s conviction had been procured by prosecutorial misconduct amounting to fraud and thus fell within the description of CPL 440.10 (1) (b), one of the grounds included in the Court of Claims Act § 8-b (3) (b) and (5) (b) enumeration.

The Court of Claims (Nadel, J.) denied the State’s motion and claimant’s cross motion. It found that the Appellate Division’s reversal of claimant’s conviction had been, at least in part, for prosecutorial misconduct rising to the level of misrepresentation or fraud. Judge Nadel thus concluded that there was a sufficient reversal predicate for claimant’s Court of Claims Act § 8-b claim, at least for purposes of determining whether a viable claim was presented. He, however, denied the cross motion for summary judgment because claimant, as the motion’s proponent, had not shown by clear and convincing evidence (see Court of Claims Act § 8-b [5] [“In order to obtain a judgment in his favor, claimant must prove (the elements of his or her claim) by clear and convincing evidence”]) the absence of triable issues respecting the State’s liability.

The Appellate Division in the decision and order now principally at issue affirmed the denial of the State’s motion to dismiss but reversed the denial of claimant’s cross motion, awarding claimant summary judgment upon the issue of liability (20 AD3d 376 [2d Dept 2005]). The Court agreed with claimant (and the Court of Claims) that its reversal of the judgment of conviction was premised, at least in part, upon prosecutorial misconduct amounting to fraud. Unlike the Court of Claims, however, the Appellate Division found no residual factual question as to whether there had been fraud by the prosecutor, or as to whether the other elements of claimant’s Court of Claims Act § 8-b claim had been established by clear and convincing evidence (id. at 377-378). It said:

“The prosecutor’s deliberate withholding of evidence which tended to exonerate the claimant constituted a ‘fraudulent act,’ which is ‘[c]onduct involving bad faith, [or] dishonesty,’ (Black’s Law Dictionary 687 [8th ed 2004]), as well as a ‘fraud on the court,’ which is ‘a lawyer’s . . . misconduct [in a judicial proceeding] so serious that it undermines . . . the integrity of the proceeding’ (id. at 686)” (20 AD3d at 377).

After a trial on the issue of damages, the Court of Claims awarded claimant nonpecuniary damages in the amount of $1,750,000 and $343,428 in past lost earnings (24 Misc 3d 576 [2009]). No award for loss of future earnings was made. On the ensuing appeal by the State and cross appeal by claimant, the Appellate Division modified solely to reduce the nonpecuniary damage award to $1 million (76 AD3d 940 [2d Dept 2010]).

The present appeals followed, pursuant to leave grants by this Court. Defendant State now challenges the liability finding made on summary judgment by the Appellate Division and, moreover, urges that its motion to dismiss the claim should have been granted. Claimant challenges the Court of Claims’ damage awards, both as affirmed and as modified by the Appellate Division: he maintains that the award for past lost earnings was inadequate, that the denial of an award for future loss of earnings was in error, and that the Appellate Division’s reduction of the award for nonpecuniary damages was unjustified. We modify to deny claimant’s motion for summary judgment as to liability, and otherwise affirm.

It is, to begin, clear that the criminal case against claimant was deeply and irredeemably flawed. The CHOP records, properly understood, exculpated claimant. As Dr. Daniel Hyman would later set forth more comprehensively in affidavit form, those records documented his examination of the child at CHOP on February 15, 1988 specifically for the purpose of ruling out recent sexual abuse. No injury or abuse of any kind was detected. After exhaustively detailing the procedures followed during his full examination and his negative abuse findings— including most notably that the child had an intact hymen—Dr. Hyman stated,

“In my opinion, with [in] a reasonable degree of medical certainty, there was no physical examination evidence that [the child] was raped or sodomized as of the date of my examination of [the child] on February 15, 1988; assuming the accuracy of the records of Dr. Sabbagh, there was evidence to substantiate the further conclusion that [the child] was raped, sodomized or otherwise sexually abused sometime after February 15, 1988.
“[ ] If Mr. Amine Baba-Ali was convicted for having on February 6-7, 1988 and December 25-26, 1987 caused the injuries to his daughter that resulted in the abnormalities observed by Dr. Sabbagh during her May 26, 1988 examination of [the child] then a terrible injustice has occurred because Mr. Baba-Ali was convicted for having committed crimes that occurred after, not before, the date of my examination.”

According to Dr. Hyman, he was never contacted about the matter by the office of the Queens District Attorney and spoke only once (i.e., without any follow-up) to a criminal defense attorney.

The Appellate Division in the decision and order we now review plainly and reasonably attributed the underlying prosecution’s miscarriage to the late introduction of the exculpatory CHOP records into the criminal proceeding’s evidentiary calculus. And, indeed, it should involve no supposition to conclude that had those records timely been accorded the attention they deserved, there would have been no indictment, much less a conviction.

It is true that the Appellate Division premised its reversal of claimant’s conviction on findings that claimant had been denied effective assistance of counsel and that there had been a Brady violation, and that neither of those grounds for reversal itself qualifies as a predicate for a Court of Claims Act § 8-b claim (see supra at 633 n 5). It is, however, also true that, as Judge Nadel noted, the Appellate Division, even while not considering the matter in a CPL 440.10 context, identified, in addition to those non-actionable constitutional violations, an element of prosecutorial misconduct going well beyond a simple Brady violation—one consistent with the sort of misrepresentation and fraud described by CPL 440.10 (1) (b). There is no dispute that if claimant’s conviction was reversed and the indictment dismissed upon the ground that the conviction was procured by misrepresentation or fraud within the meaning of CPL 440.10 (1) (b), there exists a Court of Claims Act § 8-b (3) (b) predicate for the present action.

In support of its motion to dismiss, the State contends that the Appellate Division did not actually premise its reversal on prosecutorial misconduct. The decision itself, however, reads to the contrary, and the Appellate Division’s denial of the People’s motion to amend its decision to delete as unnecessary its discussion of the prosecutor’s lengthy and purposeful withholding of the potentially exculpatory CHOP records, suggests, at the very least, that the Court did not view the objected to language as dispensable or tangential. The Court’s subsequent gloss of its decision of the criminal appeal in the decision we now review, where it explicitly found that the prosecutor’s deliberate withholding of exculpatory material amounted to a fraud on the court within the description of CPL 440.10 (1) (b) (see 20 AD3d at 377), would seem to be authoritative, at least as to whether that same Court had intended fraud to be a ground for reversing the subject judgment of conviction. Whether the Appellate Division was correct in folding prosecutorial fraud into its rationale for reversal and deeming fraud to have been established as a matter of law is another question. For purposes of presenting a claim pursuant to Court of Claims Act § 8-b (3) (b), it is sufficient that there is documentary evidence to place the claim within one of the allowed CPL 440.10 predicates. That requirement was met here by the Appellate Division’s decisions.

The State’s more substantial argument for dismissal of the claim is that, even if there was misrepresentation by the prosecutor, claimant will be unable to show, as he must to recover, that that was the procuring cause of his conviction (see Court of Claims Act § 8-b [5] [b] and CPL 440.10 [1] [b]). The State argues that any claim that nondisclosure operated to procure the verdict must be defeated by the circumstance that the CHOP records were in the end disclosed, even if belatedly, and placed in evidence for consideration by the factfinder. We cannot agree, however, that an eleventh hour turnover would invariably so neatly sever the causal link between prolonged suppression of exculpatory evidence and a guilty verdict. Here, the Appellate Division found, and we agree, that had the records been turned over well in advance of trial a different outcome would have been reasonably possible. Indeed, if the significance of the records had been properly conveyed and understood, an acquittal would have been the only rational outcome.

The CHOP records, although facially reflective of a full physical examination that disclosed no signs of abuse, consisted of hospital forms filled out with check marks and brief notations; the records contained no narrative account of the examination or of the examiner’s findings. While the presence of an intact hymen was inferable from the notation that there were “no external signs of [rectal or genital] abuse,” there was no express statement specifically noting an extant hymen. The records, then, required some expert explanation if the full significance of the documented examination was effectively to be communicated to the factfinder. Any suppression of these uniquely probative documents that functioned to diminish their exculpatory utility may in this highly sensitive context have been a procuring cause of claimant’s wrongful conviction.

Even with defense counsel’s representational shortcomings, the possibility cannot now be excluded that he would have realized the very considerable exculpatory potential of the CHOP records, if they had been turned over to him in timely fashion. Counsel plainly recognized that the records were exculpatory; his efforts to make use of them although clumsy and ineffective when they took place, might well have been significantly more efficacious had they been undertaken months before. The relation between counsel’s ineffectiveness, any disclosure delay and the verdict is factually complex. We do not think it possible to determine as a matter of law that the wrongful verdict against claimant was properly attributable solely to counsel’s inadequate representation, and concomitantly that it was not also significantly and actionably procured by the alleged prosecutorial misconduct. Whether there was procuring fraud is on this record an issue for the factfinder. This brings us somewhat anticipatorily to the question of whether the Appellate Division’s grant of summary judgment to claimant on the issue of liability was proper.

Although there is evidence in the present record to support the imposition of liability on a procuring fraud theory— evidence from which it might be reasonably inferred that, as the Appellate Division found, the trial prosecutor deliberately suppressed the CHOP records until the eve of trial, and by thus frustrating defendant’s use of the records induced the conviction of an innocent man—the question immediately before us is whether, solely on such evidence, the Appellate Division’s grant of summary judgment as to liability was proper. We cannot conclude that it was. The submissions placed before the court in support of the summary judgment motion in their more complete aspect raise triable issues, not only as to whether any withholding of the exculpatory records was, in fact, the procuring cause of claimant’s conviction, but also as to the timing of the disclosure of those records and the intent of the prosecutor. A grant of summary judgment must be based on evidence “sufficient ... to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). That standard is not met here.

While, in considering defendant’s motion to dismiss claimant’s Court of Claims Act § 8-b claim it was appropriate to assume the truth of claimant’s documented allegations, in now considering claimant’s summary judgment motion that assumption must give way; the question is not simply whether claimant has a claim, but whether he has by his submissions actually clearly and convincingly proved one.

The issue of fraud in the underlying prosecution, although adequately presented, has not yet been conclusively litigated. While the Appellate Division in looking back at its decision reversing claimant’s conviction apparently understood the issue to have been decided, if it was decided, it was only upon the apparent concession of the attorney who handled the appeal for the People to the effect that the CHOP records had not been turned over until just before the trial. As the submissions on the motion to amend from dehors the appellate record showed, however, the pivotal factual question of the disclosure’s timing was actually closely disputed and presented sharply defined credibility issues. The Appellate Division’s denial of the motion to amend did not and could not properly resolve that triable question; the denial, correctly understood, represented no more than an exercise of discretion as to whether there had been a sufficient reason advanced for the Court to take the extraordinary step of making a very significant substantive excision from a decision which, in its relevant parts, fairly reflected representations previously made by the party seeking the change. However appropriate that denial may have been within the immediate context of the criminal appeal, it should not be accorded broader preclusive effect. The People’s appellate concession should not now be collaterally binding as against the State in its defense of the present Court of Claims Act § 8-b claim. Proof of a matter, particularly one as serious as prosecutorial fraud, cannot be clear and convincing if it is not shown to be actually rooted in the facts, but is instead based in essential part solely on an attorney’s second-hand impression of the facts. If it is found, as the trial prosecutor repeatedly represented during the criminal proceedings in opposing the assertedly belated efforts of claimant’s attorney to use the CHOP documents, that the disputed exculpatory materials were turned over to claimant in February 1989, months in advance of the trial, there can be no tenable claim of fraud. If, however, it is found that the records were, in fact, withheld until the eve of trial, the fraud claim will be viable but will require for its determination the resolution of other material factual issues, namely, whether the prosecutor’s withholding of the exculpatory material amounted to a “deliberate tactical concealment” (see Leka v Portuondo, 257 F3d 89, 103 [2d Cir 2001]), and, as discussed above, whether the wrongful conviction was procured by the withholding. The Appellate Division was not wrong to think on its review of the record that claimant could prove even these unusually exacting elements of his fraud claim, it erred only to the extent that it held he did.

Turning finally to claimant’s appeal, the predominantly factual issues presented are for the most part unreviewable in this Court. Indeed, where, as here, the Appellate Division reviews a judgment after a nonjury trial it has virtually plenary power to “render the judgment it finds warranted by the facts” (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). We perceive no basis to conclude that the Appellate Division exceeded that power in reducing claimant’s nonpecuniary damage award as it did. Claimant’s challenge to the adequacy of the award for lost earnings is simply an assertion that the affirmed facts, fairly interpreted, warranted a larger recovery. That is not a claim we can pass upon. Last, while claimant raises a legal issue when he argues that the Court of Claims applied the wrong standard in rejecting his claim for loss of future earnings, the argument is without merit. The court properly required claimant to prove his entitlement to such damages “by a reasonable certainty” (see Shubbuck v Conners, 15 NY3d 871, 872 [2010]). The court’s conclusion that he had not done so was premised on its record based factual findings which, as affirmed, are beyond our review (see Cannon v Putnam, 76 NY2d 644, 651 [1990]).

Accordingly, the order of the Appellate Division should be modified, without costs, by denying claimant’s motion for summary judgment on the issue of liability and remitting to the Court of Claims for further proceedings in accordance with this opinion and, as so modified, affirmed.

Judges Ciparick, Graffeo, Smith, Pigott and Jones concur; Judge Read taking no part.

Order modified, etc.

      . Although the child testified that she felt as if something had happened to her, she did not implicate her father.

      . The child also was gynecologically examined to rule out sexual abuse two days before at Crozer-Chester Hospital. The records from that exam, which were entirely consistent with the subsequent CHOP exam findings—no signs of abuse having been detected—were turned over to defendant well in advance of trial, but their probative value was significantly compromised by the admittedly cursory quality of the exam, its subject reportedly having been completely uncooperative; the ensuing CHOP exam was performed to assure that the child had been fully evaluated. There is no allegation of prosecutorial misconduct with respect to the Crozer-Chester records.

      . This was the only turnover reflected in the trial transcript.

      . As is well known, and as Dr. Hyden in any case explained in an affidavit submitted in this action, hymenal tissue does not regenerate; if the child’s hymen was missing at the time of Dr. Sabbagh’s examination, it could not have been present at any subsequent examination.

      . Conspicuously omitted as a ground for Court of Claims Act § 8-b recovery is that set forth in CPL 440.10 (1) (h), namely, that “[t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.” Ineffective assistance and Brady claims fit within the description of paragraph (h). Reversals based upon noncompliance with pretrial disclosure obligations have also been deemed to fall within the category described by CPL 440.10 (1) (f). But that paragraph too is excluded from the section 8-b enumeration.

      . This affidavit was obtained by defendant and submitted in support of his CPL 440.10 motion for post-conviction relief.

      . Dr. Hyman’s assumption that Dr. Sabbagh’s report had been accurate would prove generous. As noted, her abuse findings—the only such findings in the case—were completely discredited by the authoritative independent examination report of Dr. Hyden, finally obtained by the People after the by then 2V2-year-old conviction had been reversed on appeal.

      . Indeed, the decision states in so many words, “We find merit to the defendant’s challenge to his judgment of conviction premised on the claimed ineffective assistance of trial counsel and on the prosecutor’s misconduct in withholding the CHOP medical records, which contained potentially exculpatory medical evidence, until the eve of trial” (People v Baba-Ali, 179 AD2d at 728-729 [emphasis added]).

      . Although the trial court and prosecutor made much of this notation’s use of the term “external,” it is clear from the expert affidavits now of record, including that of Dr. Hyman, that an external gynecological exam involves, inter alia, visualization of the hymen.

      . As noted there was no other complete pelvic examination of the child proximate to the dates of the alleged abuse. The evidence of the exam was critically important particularly where the People, although aware of the earlier exam, had elected to rely on an exam conducted months later that purported to disclose abuse of highly uncertain vintage.

      . There would have been no other basis for the Court’s fixing of the turnover date since the Court was careful to note in its decision’s decretal paragraph that “[n]o questions of fact have been raised or considered” (People v Baba-Ali, 179 AD2d at 725).


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [975 NE2d 907, 951 NYS2d 461]
    The People of the State of New York, Appellant, v Jessie Velez, Respondent. The People of the State of New York, Respondent, v Vincent Rodriguez, Appellant.
    Argued May 29, 2012;
    decided June 28, 2012

      POINTS OF COUNSEL

      Robert T. Johnson, District Attorney, Bronx (Bari L. Kamlet and Joseph N. Ferdenzi of counsel), for appellant in the first above-entitled action.
    I. The Court’s decision and order vacating defendant’s resentence and reinstating defendant’s original sentence without a period of postrelease supervision was erroneous in light of People v Lingle (16 NY3d 621 [2011]) and People v Sharlow (16 NY3d 621 [2011]) and must be reversed.
      (People v Williams, 14 NY3d 198; People v Sparber, 10 NY3d 457.) II. Defendant cannot argue that his resentencing was precluded under Correction Law § 601-d when he acquiesced to necessary adjournments generated for his benefit or caused by the court’s consideration of defendant’s objections to resentencing. (People v Cona, 49 NY2d 26; People v Sparber, 10 NY3d 457; Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358; People ex rel. McLaughlin v Board of Police Commrs. of City of Yonkers, 174 NY 450; Selzer v Baker, 295 NY 145; People v Jordan, 16 NY3d 845; People v Acevedo, 17 NY3d 297.)

      Center for Appellate Litigation, New York City (Mark W. Zeno and Robert S. Dean of counsel), for respondent in the first above-entitled action.
    I. The court’s addition of five years’ postrelease supervision to respondent’s sentence after that sentence had been completed, and after the People’s time to challenge the sentence’s legality expired violated double jeopardy. (People v Williams, 14 NY3d 198; People v Lingle, 16 NY3d 621; People v Catu, 4 NY3d 242; People v Louree, 8 NY3d 541; Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358; People v Sparber, 10 NY3d 457; Earley v Murray, 451 F3d 71, 462 F3d 147.) II. The court’s failure to impose resentence within the 40-day time limit fixed by Correction Law § 601-d (4) (c) and (d) rendered the resentence untimely and unlawful, or in the alternative, created its own constitutionally enforceable expectation of finality. (People v Liotta, 79 NY2d 841; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; People v Ballman, 15 NY3d 68; People v Paulin, 17 NY3d 238; People v Santiago, 17 NY3d 246; United States v DiFrancesco, 449 US 117; People v Williams, 14 NY3d 198; People v Lingle, 16 NY3d 621.)

      Center for Appellate Litigation, New York City (Mark W. Zeno and Robert S. Dean of counsel), for appellant in the second above-entitled action.
    The court’s failure to impose resentence within the 40-day time limit fixed by Correction Law § 601-d (4) (d) rendered the resentence untimely and unlawful, or in the alternative, created its own constitutionally enforceable expectation of finality. (People v Catu, 4 NY3d 242; People v Louree, 8 NY3d 541; Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358; People v Sparber, 10 NY3d 457; Earley v Murray, 451 F3d 71, 462 F3d 147; People v Liotta, 79 NY2d 841; People v Lingle, 16 NY3d 621; People v Williams, 14 NY3d 198; People v Savery, 90 AD3d 1505; People v Becker, 72 AD3d 1290.)

      Cyrus R. Vance, Jr., District Attorney, New York City (John B.F. Martin and Alan Gadlin of counsel), for respondent in the second above-entitled action.
    Correction Law § 601-d does not prevent the court from exercising its inherent authority to correct an unlawful sentence and therefore the court properly resentenced defendant. (Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358; People v Sparber, 10 NY3d 457; People v Sturgis, 69 NY2d 816; People v Dodson, 48 NY2d 36; People v DeValle, 94 NY2d 870; People v Williams, 87 NY2d 1014; People v Wright, 56 NY2d 613; People v Minaya, 54 NY2d 360; People v Savery, 90 AD3d 1505; People v Becker, 72 AD3d 1290, 15 NY3d 747.)
   OPINION OF THE COURT

Smith, J.

Correction Law § 601-d provides a procedure for resentencing defendants in cases where the original sentence illegally omitted a term of postrelease supervision (PRS). In these two cases, defendants claim that their resentencings under the statute were untimely, and therefore invalid. Both defendants rely on the failure of the courts that resentenced them to meet a deadline contained in the statute; defendant Jessie Velez also complains that his resentencing took place after his original sentence had expired, and thus violated constitutional prohibitions on double jeopardy.

We hold that the failure to meet the statutory deadline does not impair the validity of the resentencings in these cases. We agree with Velez, however, that his resentencing was barred by double jeopardy under our decision in People v Williams (14 NY3d 198 [2010]).

I

Both defendants were convicted of violent felonies—Velez of burglary and defendant Vincent Rodriguez of assault. Both received determinate sentences of imprisonment (see Penal Law § 70.02 [2] [a]). Their sentences were required by law to include a period of PRS (Penal Law § 70.00 [6]; § 70.45 [1]), but in each case the court failed to impose a PRS term. We held in Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d 358, 360 [2008]) that the Department of Correctional Services (DOCS) (now the Department of Corrections and Community-Supervision) cannot remedy such an error by administrative action: “only a judge may impose a PRS sentence.” We said in Garner that our holding was “without prejudice to any ability that either the People or DOCS may have to seek the appropriate resentencing” (id. at 363 n 4).

The Legislature responded to Garner by enacting Correction Law § 601-d. That statute provides for a procedure to be initiated by DOCS where a person in DOCS’s custody, or under its supervision, was given a determinate sentence which was required by law to include PRS, but where DOCS’s records do not show that a PRS term was actually imposed. In such a case, DOCS must “make notification of that fact to the court that sentenced such person, and to the inmate or releasee” (Correction Law § 601-d [2]). The court, when it receives the notification, “shall promptly seek to obtain sentencing minutes, plea minutes and any other records and shall . . . conduct any reconstruction proceedings that may be necessary” (Correction Law § 601-d [4] [b]). The statute contains a series of deadlines, all running from the date the court receives DOCS’s notification: Within 10 days, the court is required to appoint counsel for the defendant and to calendar a court appearance (Correction Law § 601-d [4] [a]); within 20 days, an initial court appearance must occur (id.); within 30 days, the court “shall commence a proceeding to consider resentence” (Correction Law § 601-d [4] [c]); and within 40 days after receiving the notification, the court “shall . . . issue and enter a written determination and order” (Correction Law § 601-d [4] [d]).

In both of these cases, DOCS sent notices to the sentencing courts and to defendants pursuant to section 601-d. In both cases, the resentencings were delayed.

The notice in Velez was sent on October 14, 2008. At that time, though Velez had been conditionally released, after serving more than seven years of his nine-year prison sentence, the full term of the sentence had not expired. An initial court appearance (at which Velez’s presence was excused) took place on November 17, 2008. The court and counsel tried to obtain minutes of the original sentencing, but that proved difficult; after several adjournments, the court finally received a copy of the minutes, which it supplied to counsel on April 8, 2009. By then, not only had the statutory 40-day deadline passed, but the maximum term of Velez’s prison sentence had expired, on March 3, 2009. Velez was resentenced on June 18, 2009.

In Rodriguez, DOCS sent its notice on April 23, 2010. For reasons not clear from the record, Rodriguez was not resentenced until June 18, 2010, concededly beyond the statutory 40-day limit. Rodriguez, unlike Velez, was still serving his original sentence at the time of his resentencing.

The Appellate Division reversed in Velez and vacated Velez’s resentence on double jeopardy grounds. The court relied on People v Williams and said that “the controlling date for double jeopardy purposes under Williams is the date of release from prison, not the expiration date of the sentence” (People v Velez, 79 AD3d 542 [1st Dept 2010]). The Appellate Division affirmed in Rodriguez, concluding that the resentencing “was neither barred by double jeopardy nor otherwise unlawful” (People v Rodriguez, 88 AD3d 557 [1st Dept 2011]). Judges of this Court granted leave to appeal to the People in Velez (17 NY3d 802 [2011]) and to Rodriguez (18 NY3d 886 [2012]), and we now affirm the Appellate Division order in each case.

II

We conclude that the violations of the 40-day deadline in these cases do not invalidate the resentencings.

The statute does not say that no person may be resentenced if the 40-day deadline (or any of the others listed in subdivision [4] of the statute) is not met. The only language that describes the consequences of missing a deadline is in subdivision (6), which says that if DOCS is not notified that the court has made a timely determination, DOCS “may notify the court that it has not received a determination and, in any event, shall adjust its records with respect to post-release supervision noting that the court has not, in accordance with subdivision four of this section, imposed a sentence of post-release supervision” (Correction Law § 601-d [6]). Thus, the People argue, the only effect of a tardy ruling is to allow DOCS to send another notification and to require it to make a notation in its records.

Defendants argue that the Legislature could not have meant a breach of the statutory deadlines to be of so little importance. They point out that the Legislature not only enacted the deadlines, but enacted specific, and quite limited, provisions for extending them: The defendant “may, with counsel, knowingly consent to extend” the 30-day and 40-day deadlines and the People “may apply to the court for an extension of ten days on the basis of extraordinary circumstances that preclude final resolution” of the resentencing issue within the statutory period (Correction Law § 601-d [4] [e]). Why, defendants ask, would the Legislature regulate so strictly the extension of deadlines that have no substantive significance? The question is a fair one; but the fact remains that the Legislature did not say, as it could easily have said, that resentencings after the 40-day deadline are forbidden.

We find in the text of the statute no conclusive answer to whether the authors of the statute intended the deadlines to be a limitation on a court’s power to resentence. There is specific discussion of that issue, however, in the legislative history, which persuades us to read the statute as the People do.

Section 601-d was part of a Governor’s program bill (see Division of Budget Bill Mem, Bill Jacket, L 2008, ch 141, at 14). Thus interested agencies in the Executive Department, and the Governor, might be expected to know what the legislation was intended to mean. One interested agency, and the Governor himself, expressed themselves directly on the point that concerns us. The Division of Criminal Justice Services said, in a letter commenting on the bill, that “[i]f the statutory time-frames are not adhered to, there is nothing in the bill that prohibits resentencing of the inmate/releasee at a later date” (Letter of Denise E. O’Donnell to Hon. David Nocenti, June 26, 2008, Bill Jacket, L 2008, ch 141, at 21). And the Governor observed, in his memorandum approving the bill:

“re-sentencing is not precluded if a court fails to issue a decision within the mandated time. Instead, DOCS or Parole will be required to revise their records to reflect the absence of a PRS term. If the court later re-sentences the defendant to impose such a term, of course, the agencies would follow that judicial direction by again revising their records accordingly.” (Governor’s Approval Mem, Bill Jacket, L 2008, ch 141, at 6, 2008 McKinney’s Session Laws of NY, at 1653-1654.)

We have found no comments from members of the Legislature that directly address our issue. However, a memorandum by the bill’s sponsor stresses the importance of imposing PRS where it is warranted: “There would be unacceptable consequences for public safety if custody or supervision ended when it should be continued” (Senate Introducer’s Mem in Support, Bill Jacket, L 2008, ch 141, at 11, 2008 McKinney’s Session Laws of NY, at 1820). It is reasonable to infer that the Legislature would not have wanted to endanger public safety solely because a timetable was not met.

We therefore interpret the statute not to bar a resentencing after the 40-day deadline of Correction Law § 601-d (4) (d) has passed, at least in cases like these, where the delays were not egregious, and where nothing suggests that they were willfully caused by the People or that they prejudiced defendants. We need not consider whether different cases would call for different results.

m

While both defendants make double jeopardy arguments, we find Rodriguez’s to be without merit. We conclude, however, that Velez’s resentencing was barred by double jeopardy.

The controlling case on this issue is Williams, in which we held that, where a sentence is no longer subject to appeal, the Double Jeopardy Clause of the Federal Constitution forbids a resentencing to add PRS after the original sentence is completed. We said in Williams'.

“Even where a defendant’s sentence is illegal, there is a legitimate expectation of finality once the initial sentence has been served and the direct appeal has been completed (or the time to appeal has expired). In these situations, the sentences are beyond the court’s authority and an additional term of PRS may not be imposed” (14 NY3d at 217).

The Appellate Division held that Velez was protected against resentencing by the rule of Williams, because he had been conditionally released, and thus his sentence had been “served,” before he was resentenced (79 AD3d at 542). This rationale was mistaken, as Velez concedes; after the Appellate Division decision in Velez, we held in People v Sharlow (companion case to People v Lingle, 16 NY3d 621, 630-631, 631 n 1 [2011]) that a defendant who is conditionally released before his sentence expires has not served his sentence within the meaning of Williams. But, as Velez points out, the Appellate Division’s error was immaterial in his case, because his full nine-year sentence expired on March 3, 2009, more than three months before he was resentenced.

The People argue that Velez cannot benefit from Williams because a proceeding to resentence him had begun—though he had not actually been resentenced—before his original sentence expired. We reject the argument. Williams says that “once the initial sentence has been served ... an additional term of PRS may not be imposed” (14 NY3d at 217 [emphasis added]). Under Williams, a defendant acquires a “legitimate expectation of finality” when his sentence has been fully served, and the sentence may not then be enhanced by adding a term of PRS, even though the defendant may be—as the defendants in Williams itself were—on notice that his original sentence was illegal. The beginning of a resentencing proceeding cannot affect that “legitimate expectation” because under the theory of Williams a defendant can have such an expectation even when he knows of the defect in his original sentence.

It was part of our purpose in Williams to identify “a temporal limitation on a court’s ability to resentence a defendant” (id.)—a clear point in time at which a resentencing to add PRS is constitutionally barred. As we said in Lingle, “our rule in Williams . . . promotes clarity, certainty and fairness” (16 NY3d at 631). The rule the People suggest—that the expectation of finality ends when a resentencing proceeding begins—would undermine clarity, because the moment when a Correction Law § 601-d proceeding begins is hard to fix. The People implicitly admit this by declining to choose a specific beginning date: They say only that it begins “at the latest” on the date of the first court appearance in the resentencing process. They do not argue that the beginning date is the one on which DOCS sends its notification to the court; while that date does initiate the resentencing proceeding in a sense, it could hardly affect a defendant’s “expectation of finality,” because the defendant does not know the notification has been sent until he receives it. And to say that the proceeding begins when the defendant receives the notification is unsatisfactory, because the date of receipt will often be hard to prove: How is a court to know when a defendant, whether in prison or on conditional release, actually received or should be deemed to have received his mail? The date of the first court appearance is also an unsatisfactory beginning date, because the proceeding has obviously begun some time before that, and the appearance itself cannot affect defendant’s “legitimate expectation.” On the first court date the defendant may not even be personally present—as Velez was not.

The People argue that, if a resentencing proceeding that is begun before defendant’s original sentence expires may not be completed after the expiration date, defendants will have an incentive to stall. We do not think this problem should be a major one. The expiration date of a defendant’s original sentence is, or easily can be, known in advance to DOCS, the prosecutors and the court. DOCS should be able, in most cases, to notify the court of the need for resentencing well in advance of the expiration date, and courts and prosecutors can simply refuse adjournments that would take the proceeding beyond that date.

It should rarely, if ever, be impossible to complete the resentencing process before a defendant’s term of imprisonment expires. It is no doubt sometimes preferable to wait, as Supreme Court did in Velez, until the original sentencing minutes are available. Having those minutes enables a court to be sure that a resentencing is necessary—that the defendant was not sentenced to PRS already—and unnecessary resentencings might create problems in some contexts (cf. People v Acevedo, 17 NY3d 297, 299 [2011] [discussing the effect of resentencing on a “conviction’s utility as a predicate for enhanced sentencing” in other cases]). But it is not essential to have the sentencing minutes at the time a defendant is resentenced. Ordinarily if it turns out the resentencing was unnecessary, little harm will be done.

Accordingly, in each case, the order of the Appellate Division should be affirmed.

Chief Judge Lippman and Judges Cipakick, Graffeo, Read, Pigott and Jones concur.

In People v Velez: Order affirmed.

In People v Rodriguez: On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed.


author: Chief Judge Lippman. Pigott, J. (dissenting).

text:
    [978 NE2d 1231, 954 NYS2d 763]
    The People of the State of New York, Respondent, v Western Express International, Inc., et al., Defendants, and Douglas Latta et al., Appellants.
    Argued September 5, 2012;
    decided October 18, 2012

      POINTS OF COUNSEL

      Douglas Latta, pro se, and Center for Appellate Litigation, New York City (Jan Hoth and Robert S. Dean of counsel), for Douglas Latta, appellant.
    Where appellant’s web-based activities were based on ad hoc associations and not part of an “ascertainable structure,” the evidence before the grand jury failed to establish the existence of a criminal enterprise under Penal Law § 460.10 (3) and thus, the Appellate Division erroneously reinstated the previously dismissed “enterprise correction” count. (People v Bello, 92 NY2d 523; People v Jennings, 69 NY2d 103; People v Galatro, 84 NY2d 160; People v Pelchat, 62 NY2d 97; People v Besser, 96 NY2d 136; People v Wakefield Fin. Corp., 155 Misc 2d 775; People v Cantarella, 160 Misc 2d 8; People v Yarmy, 171 Misc 2d 13; People v Conigliaro, 290 AD2d 87; Boyle v United States, 556 US 938.)

      Marianne Karas, Thornwood, for Vadim Vassilenko, appellant.
    The Appellate Division erroneously reinstated the previously dismissed “enterprise corruption” count where the grand jury evidence failed to establish defendant’s participation in a criminal enterprise. (People v Yarmy, 171 Misc 2d 13; People v Wakefield Fin. Corp., 155 Misc 2d 775; People v Cantarella, 160 Misc 2d 8; People v Pustilnik, 14 Misc 3d 1237[A], 2007 NY Slip Op 50407[U]; People v Moscatiello, 149 Misc 2d 752.)

      Steven Banks, Legal Aid Society, New York City (Allen Fallek of counsel), for Lyndon Roach, appellant.
    The Appellate Division erroneously reinstated the previously dismissed “enterprise corruption” count where the grand jury evidence failed to establish appellant’s participation in a criminal enterprise that had an “ascertainable structure.” (Boyle v United States, 556 US 938; People v Newspaper & Mail Deliverers’ Union of N.Y. & Vicinity, 250 AD2d 207; People v Besser, 96 NY2d 136; United States v Turkette, 452 US 576; People v Conigliaro, 290 AD2d 87; People v Yarmy, 171 Misc 2d 13; People v Moscatiello, 149 Misc 2d 752; People v Manini, 79 NY2d 561.)

      Galluzzo & Johnson LLP, New York City (Matthew J. Galluzzo of counsel), for Angela Perez also known as Anna Ciano, appellant.
    The evidence before the grand jury was insufficient to sustain the charge of enterprise corruption. (People v Pustilnik, 14 Misc 3d 1237[A], 2007 NY Slip Op 50407[U]; People v Wakefield Fin. Corp., 155 Misc 2d 775; People v Moscatiello, 149 Misc 2d 752; People v Cantarella, 160 Misc 2d 8; People v Capaldo, 151 Misc 2d 114; Odom v Microsoft Corp., 486 F3d 541; United States v Turkette, 452 US 576; United States v Patrick, 248 F3d 11; United States v Cagnina, 697 F2d 915; Richmond v Nationwide Cassel L.P., 52 F3d 640.)

      Cyrus R. Vance, Jr., District Attorney, New York City (David M. Cohn and Alan Gadlin of counsel), for respondent.
    The evidence before the grand jury sufficiently established the existence of a criminal enterprise. (People v Grant, 17 NY3d 613; People v Bello, 92 NY2d 523; People v Garson, 6 NY3d 604; People v Jennings, 69 NY2d 103; People v Besser, 96 NY2d 136; Boyle v United States, 556 US 938; United States v Turkette, 452 US 576; United States v Lemm, 680 F2d 1193; People v Graziano, 34 AD3d 597; People v Conigliaro, 290 AD2d 87.)
   OPINION OF THE COURT

Chief Judge Lippman.

Appellants have been indicted for enterprise corruption (Penal Law § 460.20 [1] [a]), a class B felony, based in essential part on their commission of numerous predicate offenses. There was proof before the grand jury that three of them—Douglas Latta, Lyndon Roach and Angela Perez—repeatedly purchased stolen credit card data which they then used for fraudulent purposes, and that the remaining appellant, Vadim Vassilenko, through the company he controlled, defendant Western Express International, Inc. (Western Express), facilitated transactions by which the purloined credit card data was transferred.

Appellants’ conduct, the People claim, was part of a larger enterprise to traffic in stolen credit card information. To make out the corrupt enterprise, the People adduced before the grand jury proof that Eastern European vendors of stolen credit card data engaged in Internet transactions with buyers in New York. There was also proof that, in consummating these transactions, buyers and sellers sometimes availed themselves of services offered by Western Express through its publicly accessible Internet websites. While Western Express’s menu of services—i.e., check cashing, mail receiving, issuing money orders, digital currency exchange, and Russian/English translation—was superficially unremarkable, the services themselves being legal and admitting of legitimate utility in the conduct of international transactions, there was evidence that some Western Express customers, among them defendants Latta, Roach and Perez, used the company’s services for “carding” purposes, i.e., to traffic in stolen credit card information.

The People, in presenting the matter to the grand jury, dwelt principally on the carders’ use of Western Express’s digital currency exchange service. Western Express, having purchased large sums of the unregulated Internet currencies EGold and Webmoney, was an authorized vendor of those forms of tender. For a commission of between two and five percent, the company would transfer into a customer Internet account held in an assumed name digital currency purchased from it by the customer with US dollars. The digital currency could then be, and on occasion was, transferred to pay for stolen credit card information, after which the vendor would sell the digital currency received in payment back to Western Express for its value in another digital currency or US dollars, with Western Express taking an additional commission. This transactional pattern recommended itself for money laundering purposes by reason of the circumstance that E-currency was not government regulated and that international transactions using it went largely unscrutinized.

There was evidence that Western Express was not a neutral observer of this use of its services; its employees offered advice on how to structure transactions to avoid detection and defendant Vassilenko, the company’s president, recognizing that a significant portion of Western Express’s business was from “carding” transactions, actively sought the patronage of carders. Carder business was encouraged by postings on the Western Express websites and there was proof that Vassilenko attempted (evidently unsuccessfully) to advertise Western Express’s services on Carder Planet, a members-only website devoted exclusively to facilitating illegal carding activities.

Supreme Court granted appellants’ respective motions to dismiss the subject indictment’s enterprise corruption count upon the ground that the proof before the grand jury, even when viewed most favorably to the People, did not make out the existence of a “criminal enterprise.” As is here relevant, guilt of enterprise corruption under New York’s Organized Crime Control Act (OCCA) (Penal Law § 460.00 et seq.) requires proof that the accused “when, having knowledge of the existence of a criminal enterprise and the nature of its activities, and being employed by or associated with such enterprise . . . intentionally conducts or participates in the affairs of [the] enterprise by participating in a pattern of criminal activity” (Penal Law § 460.20 [1] [a]). For OCCA purposes a “criminal enterprise” is “a group of persons sharing a common purpose of engaging in criminal conduct, associated in an ascertainable structure distinct from a pattern of criminal activity, and with a continuity of existence, structure and criminal purpose beyond the scope of individual criminal incidents” (Penal Law § 460.10 [3]). In dismissing the enterprise corruption count, Supreme Court focused upon the absence of proof of an “ascertainable structure distinct from a pattern of criminal activity”:

“Here, the People have failed to even articulate— much less adduce evidence proving—any system of authority or hierarchy in which the defendants participated . . . [W]hat the People allege are a series of arms-length business transactions—admittedly extensive and, if the People’s allegations are true, illegal—conducted by a variety of organizations and individuals, each operating independently and with no overarching structure or system of authority. In essence, the People have described an illegal industry rather than a corrupt enterprise, the criminal parallel of a typical legitimate industry consisting of producers, wholesalers, distributors, retail outlets, and credit suppliers, each of [whom] has a unique but independent role in the industry.”

In reversing and reinstating the enterprise corruption count (85 AD3d 1 [1st Dept 2011]), the Appellate Division, while acknowledging that there was no evidence of a traditionally structured, i.e., hierarchical, entity, theorized that Vassilenko had used Western Express to create a structured enterprise the purpose of which was to “actively encourage more and larger transactions by its participants on an ongoing basis” (id. at 14). The evidence, said the court, permitted the inference that defendants knowingly played roles in the enterprise even though, for the most part, they had no personal interaction (id.). Two Justices dissented, expressing the view that the requisite “ascertainable structure” to the alleged enterprise had not been demonstrated, even to the bare bones extent necessary to sustain the enterprise corruption count to trial. The dissenters found compelling the absence of “evidence of any collective decision-making or coordination with respect to the purported enterprise’s activities or of any overarching structure of authority or hierarchy in which defendants participated” (id. at 19). One of the dissenting Justices granted appellants’ separate applications for permission to appeal to this Court (2011 NY Slip Op 80670[U] [2011]; 2011 NY Slip Op 80671[U] [2011]; 2011 NY Slip Op 83743[U] [2011]; 2011 NY Slip Op 83744[U] [2011]). We now reverse and reinstate the orders of Supreme Court dismissing the enterprise corruption count as against appellants.

New York’s OCCA was enacted in 1986 to afford state prosecutors a means of exacting heightened penalties for criminal activity referable to or generative of structured criminal enterprises (see Penal Law § 460.00). Those enterprises were understood to present a distinct evil by reason of their unique capacity to plan and carry out sophisticated crimes on an ongoing basis while insulating their leadership from detection and prosecution (see id.; People v Besser, 96 NY2d 136, 142 [2001]). The Federal Racketeer Influenced and Corrupt Organizations Act (RICO) (18 USC § 1961 et seq.) had, of course, for some time enabled federal prosecutors to prosecute enterprise corruption as such, but until the enactment of the OCCA there was no New York State analogue.

The common challenge posed both federal and state legislators in penalizing enterprise corruption as a separate crime was to delineate the circumstances under which conduct already fitting under a criminal definition would additionally be subject to prosecution and more serious penalization for its connection to a criminal organization. To justify the superadded penalties for participation in a corrupt enterprise, and concomitantly to avoid sweeping relatively minor offenders into complex multidefendant, multicount prosecutions entailing a risk of draconian punishment, it was necessary to distinguish between what on the one hand were merely patterns of criminal conduct and what on the other were patterns of such conduct demonstrably designed to achieve the purposes and promote the interests of organized, structurally distinct criminal entities. Accordingly, both RICO and the OCCA require the prosecution to prove, in addition to a pattern of criminal activity, the existence of a separate criminal enterprise to which that pattern of activity is beneficially connected (see United States v Turkette, 452 US 576, 583 [1981]; Penal Law §§ 460.20 [1]; 460.10 [3]). While RICO does not explicitly require proof of the enterprise’s structural integrity, it is settled that a qualifying enterprise must have structure (Boyle v United States, 556 US 938, 940-941 [2009]). And, as noted, the OCCA, which is assertedly of more narrow application than RICO (Penal Law § 460.00), makes the requirement of “an ascertainable structure distinct from a pattern of criminal activity” express in its definition of “criminal enterprise” (Penal Law § 460.10 [3]). Both statutes demand or have been understood to demand proof of an association possessing a continuity of existence, criminal purpose, and structure—which is to say, of constancy and capacity exceeding the individual crimes committed under the association’s auspices or for its purposes (id.; Boyle, 556 US at 946).

There is no question that the People presented as to each appellant considerable evidence of a pattern of illegal activity. The issue to be decided is whether they also presented evidence from which a petit jury could reasonably infer (see People v Bello, 92 NY2d 523, 525 [1998]) that that activity bore the requisite relation to a distinct criminal enterprise—a “group of persons” seeking a “common purpose” and associated in an ascertainably structured entity. The People and the Appellate Division majority proposed a structure composed of buyers and sellers of stolen credit card information arrayed around Western Express’s hub-like websites, drawn there by reason of the sites’ menu of facilitative services. As Supreme Court perceptively observed, however, this does no more than describe a prevalent pattern evidently organic to the “carding” market; it is how that business often happens to be configured given the needs and interests of the individual market participants. It is, however, not indicative of a distinct, structured criminal enterprise. There is no hint that any of the market participants acted except for and according to their own particular interests, much less that their actions within the illicit market were somehow connected to the workings of a structured, purposeful criminal organization.

The People urge that a criminal enterprise need not be hierarchical to be structured and that structure may be inferred from patterns of criminal conduct. While both of these propositions may be true in theory, it remains that under the OCCA a “common purpose” is required and the structure of a criminal enterprise must be “ascertainable.” Here these conditions are not met. The presented evidence was indicative of no more than the manner in which international transactions in stolen credit card data were commonly conducted, with or without the use of Western Express’s services; it did not support the further inference of a distinct, beneficially related criminal enterprise.

It is true that in Boyle the RICO requirement of enterprise structure was deemed satisfied simply by proof of the underlying pattern of criminal activity and the inference of structure that that proof would bear (see 556 US at 947-948). The OCCA, unlike RICO, however, specifically demands that the structure be distinct from the predicate illicit pattern, and not surprisingly there are no New York cases in which the requisite structure has been inferred simply from an underlying pattern. Moreover, Boyle involved a ring of thieves whose relatively constant membership met from time to time to plan and execute bank heists, the proceeds of which they shared (see id. at 941). There was, then, some evidence from which a continuing cooperative criminal enterprise possessed of a common purpose and some, albeit loose, structure could be inferred. Here, although there was evidence of many arms’ length transactions, there was no proof of concerted activity from which a petit jury might reasonably have gathered that the appellants were knowing participants in the affairs of a “criminal enterprise” within the meaning of Penal Law § 460.10 (3).

Doubtless, the Internet may be used to facilitate crime, and we do not exclude the possibility that a website singularly preoccupied with processing a screened clientele’s illicit transactions could be understood as elemental to and reflective of a criminal enterprise. But crimes committed by resort to cyber means are not invariably referable to distinct nefarious enterprises, and the websites here involved do not permit the inference of an overarching criminal purpose or organization; while Western Express may have sought to make its websites attractive to carders, the sites themselves presented simply as publicly accessible loci for the conduct of business, the legality of which turned in the end upon the independent agendas of individual users. To the extent that the usage was for illegal purposes, it reflected the existence of a prevalent black market but did not reasonably justify the additional inference necessary to the viability of the proposed enterprise corruption prosecution, that there was within that market an enduring structurally distinct symbiotically related criminal entity with which appellants were purposefully associated.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed and the orders of Supreme Court, New York County, dismissing the enterprise corruption count of the indictment as against appellants, reinstated.

Pigott, J. (dissenting).

The days of traditional organized crime families seem to be fading. Instead, in today’s modern world, criminal organizations now vary in size and even operate on a global span by way of the computer. Criminal organizations operating on the Internet do so without any notion of a hierarchy or any formalized decision-making process. The New York State Legislature, recognizing that organized crime is evolving, has expressly permitted courts and prosecutors to apply the enterprise corruption statute (Penal Law § 460.20 [1] [a]), in their discretion, to organizations that engage in a pattern of criminal activity and that possess any sort of “ascertainable structure” (see Penal Law § 460.00).

The majority correctly summarizes the grand jury presentation by the People, noting the following: (1) defendant Western Express purchases “large sums of the unregulated Internet currenc[y]”; (2) it then transfers this money to customers with “assumed name” accounts; (3) those “customers” then buy stolen credit card information with this unregulated money; and (4) the “customer” then sells the currency back to Western Express obtaining U.S. dollars in return with Western Express taking an additional commission (majority op at 655). As the majority notes, this is simply a digital form of money laundering.

My colleagues conclude that no “ascertainable structure” was presented to the grand jury in this case because, although there was a “prevalent black market” for stolen credit card information, within that market there was no “enduring structurally distinct symbiotically related criminal entity with which appellants were purposefully associated” (majority op at 660). I find no such requirement in the statute.

The People allege that a cybercrime group (which the People termed the Western Express Cybercrime Group), was formed. The group included a preexisting corporation, Western Express International, Inc., that acted as the “money mover” for the other members of the group. Those other members included “vendors” and “buyers” who trafficked in stolen credit card numbers and other stolen personal identifying information.

The group acted with a common purpose to engage in conduct constituting the crime, among others, of trafficking stolen information, while avoiding detection by law enforcement. Specifically, the vendors and buyers, through Western Express, were permitted to conduct anonymous transactions, via the Internet and by other means, using sophisticated payment schemes. Western Express further assisted the buyers and vendors by helping structure the transactions to avoid federal reporting requirements. For instance, via computer, Western Express employees advised certain members to structure wire transfers in small amounts under various names. Thus, although the members had their own self-interest to profit from the criminal activity, they also acted for the benefit of both the vendors and buyers. Indeed, all of the participants of the group were acting together for the intended result and common goal of ensuring that all parties to and proceeds of the transactions remain virtually untraceable.

The purpose in enacting the enterprise corruption statute “was to address the particular and cumulative harm posed by persons who band together in complex criminal organizations” (People v Besser, 96 NY2d 136, 142 [2001]). Here, Western Express and the other group members banded together in a way that was distinct from a simply buy-sell transaction on the black market. Rather, the parties acted in an organized way, or, in other words by an “ascertainable structure,” which allowed the members to be more successful in effecting their criminal purpose and to avoid detection from law enforcement for several years.

I would, therefore, affirm the order of the Appellate Division.

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

Order, insofar as appealed from, reversed, etc.

      . These included scheme to defraud, conspiracy, grand larceny, money laundering, possession of stolen property, and falsifying business records. No issue is before us respecting the sufficiency of the counts charging these offenses; this appeal concerns no more than the sufficiency of the evidence offered in support of the enterprise corruption count.

      . Vassilenko estimated that 5% of his business was from carding transactions. The People contend that the actual percentage was much higher.

      . As is here relevant the legislature in enacting the OCCA was careful to explain that
      “[t]he organized crime control act is a statute of comparable purpose [to that of RICO] but tempered by reasonable limitations on its applicability, and by due regard for the rights of innocent persons. Because of its more rigorous definitions, this act will not apply to some situations encompassed within comparable statutes in other jurisdictions” (Penal Law § 460.00 [emphasis supplied]).

      . We note that, while the Appellate Division offered that the common purpose of the purported enterprise was to encourage more and larger criminal transactions, there was no proof that Western Express’s customers availed themselves of the company’s services with any objective other than the expedient conduct of their own individual transactions.

      . There are numerous providers of such services and, in fact, after Western Express’s demise, its carder clientele simply switched to different providers of comparable services.


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

text:
    [978 NE2d 1241, 954 NYS2d 772]
    In the Matter of Michael D’Angelo, Respondent, v Nicholas Scoppetta, as Commissioner of the Fire Department of the City of New York, et al., Appellants.
    Argued September 7, 2012;
    decided October 18, 2012

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Ellen Ravitch, Georgia Pestaña and Pamela Seider Dolgow of counsel), for appellants.
    The order of the Appellate Division should be reversed because the CPLR article 78 petition failed to state a cause of action to compel removal of the letter and the Advisory Memorandum from petitioner’s Equal Employment Opportunity file. Petitioner failed to establish that the letter and the Advisory Memorandum constitutes “discipline,” that he was denied due process, or that respondents’ decision was arbitrary or capricious. (Holt v Board of Educ. of Webutuck Cent. School Dist., 52 NY2d 625; Matter of Cohn v Board of Educ. of the City School Dist. of the City of N.Y., 74 AD3d 457, 17 NY3d 729; Matter of Hoffman v Village of Sidney, 235 AD2d 698; Matter of Von Essen v New York City Civ. Serv. Commn., 4 NY3d 220; Matter of O’Connor v Sobol, 173 AD2d 74, 80 NY2d 897; Tomaka v Evans-Brant Cent. School Dist., 107 AD2d 1078, 65 NY2d 1048; Matter of Alpert v Grecco, 73 AD2d 710; Matter of Cassone v Westchester County Health Care Corp., 5 AD3d 764, 3 NY3d 604; Matter of Memminger v Westbury Union Free School Dist., 80 AD2d 918, 55 NY2d 867; TeBordo v Cold Spring Harbor Cent. School Dist., 126 AD2d 542, 70 NY2d 605.)

      Sullivan Papain Block McGrath & Cannavo, P.C., New York City (Michael N. Block and Stephen C. Glasser of counsel), for respondent.
    The Appellate Division correctly affirmed the Supreme Court’s finding that the fire department’s “formal notice of disposition” placed in petitioner’s file 2V2 years after a complaint was filed against him was the equivalent of a disciplinary reprimand rather than a Holt “critical evaluation,” thus triggering the procedural due process safeguards of Civil Service Law § 75, where it (i) “substantiated” allegations that petitioner “exercised unprofessional conduct” and made “inappropriate and offensive comments of a racial nature in the workplace to another fire department employee” which conduct “violates the fire department’s Equal Employment Opportunity (EEO) policy and code of conduct”; (ii) made a formal finding of misconduct in that it resulted from the fire department’s EEO office having “conducted] a thorough investigation,” including “interviewing witnesses and reviewing relevant facts presented in the complaint,” all without affording any protection under Civil Service Law § 75; (iii) was issued only after a separate memorandum of these findings was “reviewed and approved” by an “impartial” administrator, the fire commissioner himself; and (iv) had both immediate consequences of ordering petitioner to take “additional EEO training,” as well as long-term consequences since these findings could be used against petitioner when he seeks promotion under the “1 in 3 rule” of Civil Service Law § 61. (Holt v Board of Educ. of Webutuck Cent. School Dist., 52 NY2d 625; Matter of Civil Serv. Empls. Assn. v Southold Union Free School Dist., 204 AD2d 445; Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509; Thompson v Grumman Aerospace Corp., 78 NY2d 553; Matter of Exley v Village of Endicott, 51 NY2d 426; Walls v Turner Constr. Co., 4 NY3d 861; Burns Elec. Co. v Walton St. Assoc., 136 AD2d 291, 73 NY2d 738; Matter of Franks v DiNapoli, 53 AD3d 897; Matter of Rednow Realty Corp. v Tully, 72 AD2d 621, 48 NY2d 610; Matter of Gomez v Hernandez, 50 AD3d 404.)
   OPINION OF THE COURT

Ciparick, J.

In this appeal, we consider whether a written letter from the Assistant Commissioner of the Fire Department of the City of New York (the Department) to petitioner firefighter advising him that he violated the Department’s Code of Conduct and Equal Employment Opportunity (EEO) Policy may be made part of petitioner’s permanent EEO file without affording him an opportunity for a hearing pursuant to section 15-113 of the Administrative Code of the City of New York. We conclude that petitioner is entitled to a hearing before the Department may place such letter in his permanent file.

Petitioner has been employed as a firefighter with the Department since 2003. On January 22, 2006, petitioner and Russell Harris, an emergency medicad technician with the Department, separately responded to the scene of a motor vehicle accident in Brooklyn. There, Harris alleges that petitioner assaulted him and yelled a racial epithet at him. In response, Harris filed a police report and notified a supervisor. A lieutenant at Harris’ station prepared an Unusual Occurrence Report (UOR) describing the purported incident and identifying potential witnesses. Based upon this UOR, the Department’s Bureau of Investigations and Trials (BIT) initiated an internal investigation.

Three days later, Harris lodged a complaint with the Department’s EEO office and a two-year investigation ensued. During this time, the EEO office notified petitioner of the complaint and interviewed him. The EEO office also questioned other personnel present at the time of the alleged incident, including individuals named by petitioner. At the conclusion of the investigation, the EEO office found that the evidence substantiated Harris’ allegations that petitioner made an inappropriate racial slur.

An attorney with the EEO office prepared a report summarizing the findings of its investigation and furnished it to the Assistant Commissioner of the Department. In turn, the Assistant Commissioner submitted her own report to the Department’s Commissioner, detailing the determination of the EEO office and recommending that petitioner receive additional EEO training and that he “sign and acknowledge an Advisory Memorandum regarding the rights and responsibilities” of an employee with the Department. Upon review, the Commissioner approved this recommendation.

Accordingly, by letter dated June 5, 2008, the Assistant Commissioner informed petitioner that the EEO office had determined he “exercised unprofessional conduct and made an offensive racial statement” in connection with the complaint filed against him by Harris. The letter instructed him to read and sign the attached Advisory Memorandum and advised him that he would receive further EEO training at a future date. The Commissioner characterized the letter to petitioner “as a formal Notice of Disposition of the filed Complaint.” The letter was subsequently placed in petitioner’s permanent EEO file.

Petitioner objected to the placement of this letter in his EEO file contending that the Department denied him due process in that he had no opportunity to confront and cross-examine witnesses or present witnesses on his own behalf. On September 29, 2008, petitioner commenced this CPLR article 78 proceeding, requesting Supreme Court, among other things, to annul the Department’s determination that petitioner made racially offensive remarks to Harris. Petitioner further sought the court to direct the Department to provide petitioner with a hearing on the matter.

By order entered on December 10, 2009, Supreme Court annulled the Department’s determination and expunged the Assistant Commissioner’s letter from petitioner’s EEO file. The court concluded that “the letter [was] a disciplinary reprimand and not a critical evaluation” and, therefore, petitioner had the right to a formal hearing and other due process safeguards. Supreme Court further observed that it could not order a hearing because, as the parties conceded, the applicable statute of limitations for conducting a hearing had expired. The Appellate Division affirmed the order of Supreme Court, similarly concluding that the Department did not “comport[ ] with the requirements of due process” (Matter of D’Angelo v Scopetta, 81 AD3d 820, 821 [2d Dept 2011]). We granted the Department leave to appeal (17 NY3d 710 [2011]) and now affirm.

Our analysis begins with section 15-113 of the Administrative Code, which relates to discipline and removal procedures for members of the Department (see generally Matter of Von Essen v New York City Civ. Serv. Commn., 4 NY3d 220, 223-224 [2005]). The statute provides that

“[t]he commissioner shall have power, in his or her discretion on conviction of a member of the force of any legal offense or neglect of duty, or violation of rules, or neglect or disobedience of orders or incapacity ... or immoral conduct, or conduct unbecoming an officer or member, or other breach of discipline, to punish the offending party by reprimand ... or dismissal from the force” (Administrative Code § 15-113).

In Matter of Tiernan v Walsh (294 NY 299 [1945]), we examined this statute, then section 487a-12.0 of the Administrative Code, and concluded that “the phrase ‘on conviction’ . . . imports a trial or hearing as a necessary incident to a disciplinary proceeding” (id. at 304).

The Department does not dispute that Administrative Code § 15-113 requires a hearing before its members are subject to punishment by reprimand. Rather, the Department argues that a hearing was not necessary in this case because the letter it placed in petitioner’s permanent EEC file was not a formal reprimand but merely a critical evaluation not subject to the same due process protections. We disagree.

In that regard, our decision in Holt v Board of Educ. of Webutuck Cent. School Dist. (52 NY2d 625 [1981]) is instructive. There, two tenured teachers commenced separate proceedings against their respective school districts after school administrators placed letters in their permanent files criticizing their performance without conducting a hearing pursuant to section 3020-a of the Education Law. In the first case, school administrators issued the teacher two letters, one admonishing him for failing to maintain an orderly classroom after he had been directed to do so and the other scolding him for interrupting the class of another (see id. at 629-630). The letters described the teacher as incompetent, insubordinate and unbecoming (see id. at 629-630). In the second case, a school administrator sent the teacher one letter warning him that his regular absences from his assigned duties violated school policy.

We concluded these letters did not trigger the due process protections of Education Law § 3020-a because they were simply “critical evaluations” and not “formal reprimand[s]” (id. at 633). Although we acknowledged that the letters at issue were “sharply critical,” we observed that the fundamental purpose of these communications was not to punish but to identify “a relatively minor breach of school policy and to encourage compliance with that policy in the future” (id.). We further noted that individual school administrators issued these letters and that neither teacher was subject to an investigation conducted by the board of education. Thus, we opined:

“[w]hile the inclusion of such letters in the teacher’s permanent file may have some effect on his future advancement or potential employability elsewhere, it is by no means as damaging as a formal reprimand issued by the board of education as the result of a determination of misconduct made by an impartial hearing panel. Each letter represents one administrator’s view, not a formal finding of misconduct” (id.).

The facts in this case are readily distinguishable from the facts in Holt. To begin, petitioner here did not merely receive a letter from an immediate supervisor criticizing his performance. Rather, petitioner was the subject of a formal investigation conducted by the Department’s EEO office in response to the complaint that he directed racially offensive language at Harris. That investigation, which took place over a two-year period, involved the interviewing of several eyewitnesses including the complainant and petitioner. After completing these interviews, the EEO office determined that the evidence they collected substantiated Harris’ complaint and, as a result, they supplied a detailed report to the Assistant Commissioner. In turn, the Assistant Commissioner reviewed the EEO office’s findings and then conferred with the Commissioner himself who ultimately approved the EEO office’s determination. Thus, the letter in this case stands in contrast to the letters in Holt, which only reflect the views of a particular supervisor (see 52 NY2d at 633).

Second, there is no way to characterize the determination that petitioner directed a racial epithet at Harris as a “minor breach” of the Department’s EEO policy. The letter clearly reflects the serious nature of the Department’s investigation of the complaint. The Assistant Commissioner wrote the letter to petitioner and noted that such document “serve[d] as a formal Notice of Disposition of the filed Complaint.” The letter, in no uncertain terms, informs petitioner that a thorough investigation revealed that he “exercised unprofessional conduct” and “made an offensive racial statement.” The letter further advises petitioner that, as a consequence of his misconduct, he was required to review and sign an EEO Advisory Memorandum and participate in further EEO training. On that note, we agree with petitioner that the requirement to participate in additional EEO training is a form of discipline and not, as the Department contends, mere encouragement to comply with EEO policy (cf. Holt, 52 NY2d at 633). Moreover, as the Department conceded at oral arguments, the EEO’s finding that petitioner was in breach of its racial discrimination policy is serious misconduct that could negatively impact his eligibility for future promotion.

In sum, we conclude that the letter issued to petitioner constitutes a formal reprimand under Administrative Code § 15-113. Because the Department denied petitioner his right to due process by placing the letter in his file without conducting a hearing, the letter was properly expunged from petitioner’s permanent EEO file.

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

Smith, J. (dissenting).

I dissent because I do not think the Assistant Commissioner’s letter to petitioner is a “reprimand” as we interpreted that term in Holt v Board of Educ. of Webutuck Cent. School Dist. (52 NY2d 625 [1981]).

Laws governing the discipline of civil servants, including Administrative Code of the City of New York § 15-113, often require a trial or hearing, with due process protections, before an employee can be given a “reprimand.” If that term were given a broad interpretation, it could make the lives of public employers almost impossible: They would have to go through a proceeding before a neutral factfinder, with witnesses and cross-examination, every time they wanted to say a harsh word to an employee.

In recognition of this problem, we interpreted “reprimand” narrowly in Holt, to include only a “formal reprimand” (52 NY2d at 633). One of the documents before us in Holt was a letter from a district principal to a schoolteacher, placed in the teacher’s personnel file, that said the teacher had been “insubordinate” and behaved in a way “unbecoming of a teacher” (id. at 630). We held that this letter, and a somewhat similar letter involved in a companion case, were not reprimands within the meaning of the statute but only “critical evaluations” (id. at 633). The purpose of the letters, we said, was “to warn, and hopefully to instruct—not to punish” (id.). We added:

“While the inclusion of such letters in the teacher’s permanent file may have some effect on his future advancement or potential employability elsewhere, it is by no means as damaging as a formal reprimand issued by the board of education as the result of a determination of misconduct made by an impartial hearing panel. Each letter represents one administrator’s view, not a formal finding of misconduct” (id.).

I see no essential difference between the letter in this case and the letter in Holt. The letter here, which said that petitioner “exercised unprofessional conduct and made an offensive racial statement” does not seem materially harsher in its language than the letter at issue in Holt. It is true, as the majority emphasizes (majority op at 669), that the letter in this case was preceded by a more elaborate investigation than the Holt letter. On the other hand, the letter here made its “purpose to warn, and . . . instruct—not to punish” clearer than the Holt letter did: The letter in this case enclosed an “EEO Advisory Memorandum” for petitioner to review and informed him that he would be receiving “EEO Training.”

As I interpret Holt, it allows public employers broad discretion to convene or not to convene “an impartial hearing panel” to make a “determination of misconduct” justifying the issuance of a “formal reprimand.” The formality of that procedure in itself, as Holt explained, significantly increases the damage done by the reprimand to an employee’s career. Employers should not be deterred from choosing, where they think it wise, a less formal and less damaging means of communicating their displeasure with an employee’s conduct.

The Appellate Division decision in Matter of Civil Serv. Empls. Assn. v Southold Union Free School Dist. (204 AD2d 445 [2d Dept 1994]), assuming that it is correctly decided, is distinguishable. The critical document in that case was explicitly “designated a ‘formal reprimand’ ” (id. at 445). Southold thus stands for the proposition when an employer seeks the impact that the words “formal reprimand” impart, it must invoke the formal procedures required by civil service legislation.

I would accordingly reverse the Appellate Division’s order and dismiss the petition.

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

Order affirmed, with costs.

       Neither the police nor BIT ultimately took any action against petitioner.