text:
    [44 NE3d 173, 23 NYS3d 98]
    The People of the State of New York, Respondent, v Everett M. Durant, Appellant.
    Argued October 20, 2015;
    decided November 23, 2015

      POINTS OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), for appellant.
    The trial court’s refusal to give an adverse inference instruction regarding Investigator Powell’s failure to record Mr. Everett Durant’s custodial interrogation is reversible error. (Colorado v Connelly, 479 US 157; Miranda v Arizona, 384 US 436; Interstate Circuit, Inc. v United States, 306 US 208; People v Gonzalez, 68 NY2d 424; Gordon v People, 33 NY 501; People v Perino, 19 NY3d 85; People v McMillon, 77 AD3d 1375; People v Handy, 20 NY3d 663; People v Joseph, 86 NY2d 565; People v Crimmins, 36 NY2d 230.)

      Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for respondent.
    The trial court did not abuse its discretion in denying defendant’s request for an adverse inference charge based on police not recording his interrogation. (People v Handy, 20 NY3d 663; People v Gonzalez, 68 NY2d 424; People v James, 93 NY2d 620; People v Saunders, 64 NY2d 665; People v Whalen, 59 NY2d 273; People v Knight, 87 NY2d 873; People v Reid, 69 NY2d 469; People v Vereen, 45 NY2d 856; People v Hayes, 17 NY3d 46; United States v Rose, 104 F3d 1408.)

      Weil Gotshal & Manges LLP, New York City (Steven A. Reiss and Melody E. Akhavan of counsel), and Weil Gotshal & Manges, LLP, Washington, D.C. (David B. Hird, Daniel Riegel, James Sadler and Vanshika Vij of counsel), for The Innocence Project, amicus curiae.
    I. False confessions plague the criminal justice system and are a frequent cause of wrongful convictions. (People v Thomas, 22 NY3d 629; People v Bedessie, 19 NY3d 147; Matter of Jimmy D., 15 NY3d 417.) II. Recording custodial interrogations mitigates the problem of false confessions. (People v Mateo, 2 NY3d 383; People v Anderson, 42 NY2d 35; People v Oliveras, 21 NY3d 339; Hendricks v Swenson, 456 F2d 503.) III. Where police fail to record a custodial interrogation despite having the opportunity to do so, the defense is entitled to an adverse inference instruction. (People v Gonzalez, 68 NY2d 424; Gordon v People, 33 NY 501; DeVito v Feliciano, 22 NY3d 159; Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73; People v Erts, 73 NY2d 872; Culombe v Connecticut, 367 US 568; People v De Vito, 21 AD3d 696; Miranda v Arizona, 384 US 436; People v Leyra, 302 NY 353; People v Thomas, 22 NY3d 629.)

      Gerald F. Mollen, District Attorneys Association of the State of New York, Binghamton, and New York Prosecutors Training Institute, Albany (Wendy Evans Lehmann and Hannah E.C. Moore of counsel), for District Attorneys Association of the State of New York, amicus curiae.
    I. An adverse inference charge such as the one requested in the present case would have been grossly unfair to the People, and a requirement that a trial court must give such a charge on request is unwarranted at this time. (People v Baranov, 121 AD3d 706; People v Cefaro, 23 NY2d 283; Laffin v Ryan, 4 AD2d 21; People v Gonzalez, 68 NY2d 424; People v Handy, 20 NY3d 663; People v Falkenstein, 288 AD2d 922; People v Oglesby, 15 AD3d 888; People v Kunz, 31 AD3d 1191; People v Williams, 39 AD3d 1200; People v Carr, 14 NY3d 808.) II. A legislatively fashioned rule establishing requirements for recordation of a defendant’s custodial statements and any sanctions for violation of those requirements would be preferable to a judicially imposed rule. The case at bar does not provide an appropriate platform for judicial rulemaking, and law enforcement is moving forward in good faith toward ensuring that all New York jurisdictions will soon have the capability to record interrogations in accordance with whatever legislation is passed.
   OPINION OF THE COURT

Abdus-Salaam, J.

The increasing availability of electronic recording technology raises many complex questions of law and policy in the realm of criminal justice, most of which we cannot and do not resolve in this case. Instead, we are confronted here with a single narrow question: does the common law invariably require a court to issue an adverse inference instruction against the People at trial based solely on the police’s failure to electronically record the custodial interrogation of a defendant? We answer this question in the negative. Leaving aside whether a trial court has the power to deliver such an instruction based on the unique facts of a particular case, the court does not necessarily abuse its discretion or otherwise commit legal error by declining to issue the charge in every case in which the police fail to record a custodial interrogation. Thus, although the better practice would be for the police to use the equipment at their disposal to record interrogations, their failure to take such action does not, as a matter of law, automatically compel a trial court to deliver an adverse inference charge to a deliberating jury.

L

Defendant Everett M. Durant was arrested and tried on a single count of robbery in the second degree (see Penal Law § 160.10 [1]) based on his alleged robbery of Emmett Hunter. The People’s evidence at trial showed that, on the night of November 28, 2008, Hunter walked past defendant and a group of other young men near a street corner on the east side of Rochester. Defendant placed Hunter in a choke hold, possibly rendering him briefly unconscious. Hunter then saw defendant holding his wallet. As the group started walking away, Hunter called the police on his cell phone to report the robbery. Upon observing Hunter making the call, defendant approached Hunter again and took his phone. Defendant and the other young men then started punching and kicking Hunter. After a struggle, Hunter broke away from the group and ran to a nearby fire station, where he pressed an emergency alarm button, causing his assailants to scatter. Soon thereafter, the police arrived, and they chased down and apprehended defendant.

The police transported defendant to the east side police station because, as Police Investigator Trevor Powell later explained at trial, it was “common practice when a crime occur [red] on the east side to go to the east side office,” whereas “[i]f it [wa]s a homicide [one would] take the [suspect] back to the Public Safety Building.” In that sense, Powell observed, “this crime required” the officers to transport defendant to the east side station. Significantly, Powell explained that the officers at the east side station “didn’t have any access” to recording equipment; although the Public Safety Building, which was roughly a 10-minute drive from the east side station, had video recording equipment, no recording equipment of any kind was kept at the east side station.

At the east side station, defendant was placed in an interview room and handcuffed to a table. Powell entered the room and issued Miranda warnings to defendant (see Miranda v Arizona, 384 US 436 [1966]), and defendant agreed to speak to Powell and answer his questions. When Powell inquired about the reason for defendant’s arrest, defendant initially stated that he and his sister had happened upon the scene of a fight in progress earlier that night, and that he had punched Hunter in order to break up the fight. At Powell’s request, defendant provided Powell with his sister’s phone number, but when Powell called the number, no one answered.

Next, Powell “told [defendant] that it [wa]s time to tell the truth and to man up.” In response, defendant changed his narrative of the crime, saying that he had seen Hunter “being crowded by this guy Little C and his brothers” and had joined those individuals in assaulting Hunter. Defendant denied taking anything from Hunter. After defendant made this oral statement, Powell wrote out a version of that statement for defendant to sign, making a few changes to the written version at defendant’s request before he signed it.

Due to the lack of a recording of the interrogation, the People’s trial proof of the events that unfolded in the interview room consisted solely of Powell’s testimony and written summary of defendant’s statement. In response to the People’s proof, defendant called his sister to the stand, and she testified consistently with his final statement to Powell, alleging that he had merely assaulted, but not robbed, Hunter.

Prior to summations, defense counsel requested that the court issue a permissive adverse inference charge against the People based on the police’s failure to record defendant’s interrogation. Counsel gave the court a written copy of his suggested instructions. In sum and substance, counsel proposed that the court tell the jurors that they could consider the police’s failure to record the interrogation in determining the voluntariness of defendant’s alleged statement to the police and the weight to be given to it; in the absence of a recording, they did not have reliable and complete evidence of the contents of defendant’s alleged statement to the police or whether he had made the statement at all; they should weigh the evidence of the alleged statement with great caution; if the People did not prove beyond a reasonable doubt the existence and voluntariness of the statement, the jurors should disregard it entirely; and “[t]he absence of an electronic recording permits, but does not compel, [the jurors] to conclude that the prosecution has failed to prove that a statement was either actually or voluntarily made, or, if made, that it [was] accurately reported by the State’s witnesses.” Defense counsel did not request a standard jury instruction regarding the voluntariness of defendant’s statement in general, nor did he specifically ask the court to submit the issue of voluntariness to the jury (see CJI2d[NY] Statements [Admissions, Confessions]). The court denied defense counsel’s request for an adverse inference charge and related instructions on the jury’s consideration of the police’s failure to record defendant’s interrogation.

During summations, the court permitted defense counsel to argue that the jurors could not know what actually happened in the interrogation room because the police had failed to record the interrogation. After summations, the jurors deliberated and returned a verdict convicting defendant of second-degree robbery. At a subsequent sentencing proceeding, the court sentenced defendant, as a second felony offender, to a determinate five-year prison term, to be followed by five years of postrelease supervision. Defendant appealed.

The Appellate Division unanimously affirmed the judgment of conviction and sentence, rejecting defendant’s contention that the trial court had been legally required to issue an adverse inference instruction based on the police’s failure to generate an electronic recording of his interrogation (see People v Durant, 112 AD3d 1366, 1367 [4th Dept 2013]). A Judge of this Court granted defendant leave to appeal (23 NY3d 962 [2014]), and we now affirm.

IL

A

As noted previously, the issue before us is a narrow one. On this appeal, defendant does not contend that the police’s decision not to record his interrogation warranted the suppression of his statement on constitutional or other grounds, and therefore we do not opine on questions of suppression and admissibility which are not before us. Nor are we called upon to define the boundaries of the trial court’s power and discretion, if any, to provide the jury with an adverse inference instruction or other guidance on its consideration of the significance of the police’s failure to record an interrogation on a case-by-case basis. Rather, this appeal presents only the issue of whether, in every case where the police could have made, but failed to make, an electronic recording of an interrogation, the trial court must, as a matter of law, invariably issue a permissive adverse inference charge.

To resolve that issue, we must examine the circumstances that have previously been held to warrant an adverse inference instruction in criminal cases. In that regard, the common law permits, and sometimes compels, a trial court to instruct the jurors that they may draw an inference unfavorable to the People based upon the government’s failure to present, preserve or disclose certain evidence, and the court’s decision to issue such a charge is reviewable in this Court for abuse of discretion as a matter of law (see People v Martinez, 22 NY3d 551, 567 [2014]; People v Savinon, 100 NY2d 192, 197 [2003]). A permissive adverse inference instruction typically serves as either: (1) a penalty for the government’s violation of its statutory and constitutional duties or its destruction of material evidence; or (2) an explanation of logical inferences that may be drawn regarding the government’s motives for failing to present certain evidence at trial (see generally People v Handy, 20 NY3d 663, 667-669 [2013]; People v Martinez, 71 NY2d 937, 940 [1988]). For example, the trial court typically must issue an adverse inference charge as a penalty where the State, through its agents, has destroyed existing material evidence in its possession, such as an existing video recording that has been requested by the defense (see Handy, 20 NY3d at 667-669). And, where the State violates its disclosure obligations, an adverse inference charge, and sometimes more severe penalties, are authorized (see Martinez, 22 NY3d at 560-565; People v Haupt, 71 NY2d 929, 931 [1988]).

In addition, as a matter of logic rather than punishment for the violation of a legal duty, the trial court must usually issue a permissive adverse inference instruction where the People fail to present the testimony of a witness and the following three conditions are met: “First, the witness’s knowledge must be material to the trial. Second, the witness must be expected to give noncumulative testimony favorable to the party against whom the charge is sought. . . . Third, the witness must be available to that party” (Savinon, 100 NY2d at 197; see also People v Hall, 18 NY3d 122, 131-132 [2011]). “This instruction, commonly referred to as a ‘missing witness charge’, derives from the commonsense notion that the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause” (People v Gonzalez, 68 NY2d 424, 427 [1986] [some internal quotation marks and citation omitted]).

In describing the missing witness rule, the U.S. Supreme Court has analogized it in some respects to the best evidence rule. Specifically, the Court has explained that, under both rules, a party’s decision to present secondary or less reliable evidence at trial, despite the party’s “possession or power” over “greater” proof, logically suggests that “if the more perfect exposition had been given it would have laid open deficiencies and objections which the more obscure and uncertain testimony was intended to conceal” (Clifton v United States, 45 US 242, 247-248 [1846] [emphases added and citations omitted]). Accordingly, a missing witness charge describes the logical inference that a party who possesses and yet withholds superior evidence probably intends to conceal the fact that the superior evidence is unfavorable to it.

Here, as noted, because no existing case law or statute requires a trial court to instruct jurors that they may draw an adverse inference from the police’s decision not to record an interrogation, defendant was not entitled to his proposed adverse inference instruction on force of any established legal mandate, and thus the court had to grant his charging request only if the failure to record his interrogation gave rise to circumstances similar to those that have previously been held to necessitate an adverse inference charge. As will be explained, however, none of the traditional rationales for an adverse inference instruction compelled the trial court in this case to deliver such a charge based solely on the police’s failure to electronically record the interrogation of defendant.

B

To begin, no adverse inference instruction could lie in this case based on the government’s alleged dereliction of a legal duty, for generally there exists no legal duty which may be breached by the failure to make an electronic recording of an interrogation. No statute requires the police to generate a video or audio recording of their interrogation of a suspect, and leaving aside any suppression matters, our case law has not recognized a constitutional duty to record interrogations. Thus, while our precedent does permit — and sometimes requires — a court to issue an adverse inference instruction as a penalty for the government’s failure to satisfy applicable legal duties, the rationale of that precedent does not support the issuance of an adverse inference instruction based on the police’s failure to satisfy a nonexistent duty to record an interrogation (see People v Moore, 112 AD3d 981, 982 [3d Dept 2013]; see also United States v Meadows, 571 F3d 131, 146-147 [1st Cir 2009]).

Additionally, this case does not present a situation, like the one in People v Handy (20 NY3d at 663), where the trial court had to, and failed to, give the jury an adverse inference charge in response to the police’s decision to destroy existing material evidence. In Handy, a police surveillance system created a series of images depicting a portion of the defendant’s alleged jailhouse assault on some sheriffs deputies, and those images remained in the possession of the police (see id. at 666). After the defendant had been charged with the crime in a felony complaint, the defendant filed an omnibus motion, in which he demanded all evidence generated by electronic surveillance of the incident (see id. at 666). Despite the defendant’s demand for such evidence, the police destroyed the surveillance images sometime between the defendant’s arraignment on the complaint and the filing of the indictment (see id. at 666). At trial, the defendant requested an adverse inference instruction, and the court denied his request. Thereafter, the jury convicted the defendant of the assault (see id. at 667). On appeal, we concluded that the trial court had committed reversible error by denying the defendant’s request for an adverse inference instruction, and we held that “when a defendant in a criminal case, acting with due diligence, demands evidence that is reasonably likely to be of material importance, and that evidence has been destroyed by the State, the defendant is entitled to an adverse inference charge” (id. at 665). We pointed out that the trial court should have issued an adverse inference instruction because such an instruction “gives the State an incentive to avoid the destruction of evidence” and contains fair permissive language based on the failure to present existing evidence, just as a missing witness instruction does (id. at 669-670).

Thus, in Handy, the need for an adverse inference charge arose only after the police had finished their investigation, the People had charged the defendant with a crime and the police had already acquired evidence which was likely to be material to the defendant’s upcoming trial. In that context, the police’s wrongful destruction of the evidence and the People’s failure to preserve it, while not illegal per se, necessitated an adverse inference charge to, among other things, deter the authorities from affirmatively destroying evidence that they knew, at the time of the destruction, was reasonably likely to be material. However, where the police do not create an electronic recording of an interrogation in the first instance, much less destroy it, they do not know the contents of the potential recording or whether those contents will be material at trial, and there is no deliberate destruction of potentially material evidence that would warrant the deterrent of an adverse inference instruction. Therefore, here, the court was not required to deliver an adverse inference charge to penalize the People for the police’s decision not to electronically record their interrogation of defendant.

C

Furthermore, the court did not, as a matter of law, have to provide the jury with an adverse inference instruction to explain the inferences which might logically flow from the evidence. Contrary to defendant’s assertion, the rationale behind a missing witness instruction does not require a court to issue an adverse inference charge in this context because a missing witness instruction is supported by a natural inference about a party’s motives in declining to call a particular witness, which is an inference that does not typically apply in cases where the police decline to record an interrogation.

As previously discussed, in cases where a missing witness charge is required, it has already been established at the time of trial that the witness in question: (1) has knowledge material to the trial; (2) would be expected to give noncumulative testimony favorable to the People; and (3) is available to the People (see Hall, 18 NY3d at 131-132). Given those conditions, it is clear that, if the People have chosen not to call the witness, they have made that choice with full awareness of what the witness knew and would be expected to say, and hence one may fairly conclude that, at the time the People decided to withhold the witness’s testimony, they had learned that the testimony would not be as favorable as expected and suppressed it for that reason. Indeed, the People would seldom have any other reason not to call such an important and readily available witness. Under those particular circumstances, then, the court usually must issue an adverse inference instruction based on “the commonsense notion that the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause” (Gonzalez, 68 NY2d at 427 [internal quotation marks and emphasis omitted]).

By contrast, the police’s failure to record an interrogation does not necessarily suggest that they declined to make the recording because they wished to avoid supplying unfavorable proof at an eventual trial of the suspect. When the police fail to electronically record an interrogation, they do not yet know whether the defendant will speak to them at all, and they have no expectation that he or she will make a statement favorable to them or the People in a future prosecution, as the defendant might freely confess, might stay silent, or might deny the allegations of wrongdoing. In other words, unlike the People in the missing witness scenario, the police do not already know that the recording is more likely to be unfavorable than it is to be favorable. Rather, at the time the police decide whether to record the interrogation, the potential recording is just as likely to be favorable (a conclusive record of a voluntary confession) or neutral (a clear record of a refusal to speak to the police) as it is to be unfavorable (a clear record of either a denial of the charges or a confession blatantly coerced by the police).

Given this uncertainty, one cannot conclude that the police must have acted out of a specific desire to prevent the creation of an objective record of unfavorable facts, and the police’s choice is just as likely to stem from an innocent oversight or a legitimate adherence to a neutral departmental policy. Indeed, this case illustrates that very point; as Investigator Powell testified without contradiction, the police department policy which dictated the detention of defendant at a location that lacked recording equipment was based on the geographical location and severity of the offense, and not on any apparent desire to suppress statements that the police believed would be unfavorable in a future prosecution. Thus, unlike the People’s choice not to call a missing witness, the police’s decision not to record an interrogation raises a number of equally plausible inferences of the police’s intent, and the court need not issue a special instruction to the jurors informing them that such a decision may indicate that the police wanted to withhold potentially unfavorable evidence.

It is for this reason that, contrary to defendant’s suggestion, the U.S. Supreme Court’s discourse on the missing witness rule in Interstate Circuit, Inc. v United States (306 US 208 [1939]) cannot afford him relief here. In that antitrust case, the Supreme Court decided that the factfinder could have drawn an adverse inference against the corporate defendants due to the corporations’ decision to call low-level employees, rather than executives, to the stand to testify about the contested corporate policies that had been ordered by those executives (see id. at 215-220, 225-226). In describing the basis for the adverse inference, the Court stated that “ [t]he production of weak evidence when strong is available can lead only to the conclusion that the strong would have been adverse” (id. at 226).

In context, the Supreme Court’s statement that a factfinder may fault a party for the “production” (id.) at trial of weak evidence in lieu of strong evidence did not constitute a declaration that an adverse inference charge may stem from a party’s failure to “produce,” i.e., create or generate (see Black’s Law Dictionary [10th ed 2014], produce [“produce” can mean “to create”]), a stronger form of evidence which did not exist before. Instead, the Court was commenting on the situation where: weak and strong evidence of a fact already exist; a party possesses both forms of evidence; and yet the party “produces” only the weak evidence, in the sense of presenting that weak proof at trial (see Black’s Law Dictionary [10th ed 2014], produce [“produce” can mean “(t)o provide (a document, witness, etc.)”]). In that scenario, the Court reasoned, a party’s decision to present the weaker of the two existing forms of evidence indicates that the party knows that the stronger proof is unfavorable to its case (see Interstate Circuit, Inc., 306 US at 225-226). Here, unlike in Interstate Circuit, Inc., the police did not possess a preexisting superior form of proof, nor did they suppress such proof in a manner suggestive of their intent to avoid the revelation of clearly unfavorable facts. Instead, the police simply failed to create a superior form of proof in the first place, and they did so at a time when they had no idea what that proof would show.

D

The foregoing discussion suffices to demonstrate that no existing legal principle or logical extension thereof requires a trial court to issue an adverse inference charge whenever the police could, but failed to, electronically record an interrogation. Furthermore, defendant relies only on his proposed categorical mandate for an adverse inference charge, without pointing to any unique factor in his case that might have permitted or compelled the court to issue an adverse inference instruction in the exercise of its discretion. As a result, the trial court did not abuse its discretion or otherwise err, as a matter of law, by refusing to deliver an adverse inference charge to the jury.

We also note that, beyond the legal infirmity of defendant’s position, the rationale behind his argument has the potential to create practical problems because, by logical extension, his rule would apply to numerous cases in which the police have the power to memorialize certain events in a more reliable way and fail to do so. In particular, defendant’s central premise is that the police’s failure to create strong objective evidence of a fact material to the defendant’s guilt — in this case an electronic recording of defendant’s statement about the crime — shows that the police determined that an objective record of the fact would be unfavorable to them. That premise would logically apply to any case where the police fail to memorialize the existence of some fact via some method other than the memory of the witnesses. Given the multitude of scenarios in which defendant’s proposed rule would arguably apply, our acceptance of his position could entangle the courts in protracted litigation over the boundaries, if any, of defendant’s rule, and the courts might frequently issue adverse inference instructions that may not be supported by law or logic.

E

Finally, while we do not adopt defendant’s proposal to issue a judicial mandate for adverse inference instructions in all cases involving the failure to record interrogations, we recognize the broad consensus that electronic recording of interrogations has tremendous value, and we note the commendable efforts of the bar, the judiciary and the legislature to address the complexities of this relatively new frontier of the criminal justice system. Certainly, there is widespread agreement that electronic recording of custodial interrogations promotes the fair administration of justice. Because an electronic recording of a custodial interrogation yields a reliable, objective record of the police’s interview with a defendant, the recording ensures that the jury at the defendant’s trial may evaluate every aspect of the defendant’s demeanor, his or her statement and his or her treatment at the hands of the police, thereby enabling the jury to make a fully informed determination of the voluntariness and meaning of the defendant’s statement. Importantly, according to experts and stakeholders in the field of criminal justice, recordings can reveal circumstances that may have prompted suspects to make false confessions, which are a leading cause of wrongful convictions (see Final Report of the New York State Bar Association’s Task Force on Wrongful Convictions at 6 [Apr. 4, 2009], available at https://www.nysba.org/WorkArea/DownloadAsset.aspx7id =26663 [accessed Nov. 4, 2015]; see also Steven A. Drizin & Marissa J. Reich, Heeding the Lessons of History: The Need for Mandatory Recording of Police Interrogations to Accurately Assess the Reliability and Voluntariness of Confessions, 52 Drake L Rev 619, 622-624 [2004]).

Fortunately, in recognition of those widely-acknowledged benefits of recording interrogations and the need for a legal framework governing this area, stakeholders in the criminal justice system and government have come together to begin addressing this critical issue. Many bar groups, district attorneys, defense lawyers, judicial task force members and legislators have already crafted worthy proposals to balance various policy interests and create what, in their judgment, is a fair, practical and enduring framework for electronic recording of interrogations (see e.g. New York State Justice Task Force, Recommendations Regarding Electronic Recording of Custodial Interrogations at 3-4 [Jan. 2012], available at http:// www.nyjusticetaskforce.com/ElectronicRecordingOfCustodial Interrogations.pdf [accessed Nov. 4, 2015]; Steven Banks, The Legal Aid Society, Testimony before the Council of the City of New York Sponsored by: Committee on Governmental Operations at 7-10 [Feb. 12, 2013], available at http://www.legalaid.org/media/171367/2013.02.12.pdf [accessed Nov. 4, 2015]; District Attorneys Association of the State of New York, New York State Guidelines for Recording Custodial Interrogations of Suspects at 1-8 [Dec. 8, 2010], available at http:// www.daasny.com/wp-content/uploads/2014/08/ Video-Recording-Interrogation-Procedures-Custodial-FINAL-12-8-10.pdf [accessed Nov. 4, 2015]). The legislature is currently considering the enactment of laws based on the important work of those stakeholders (see 2015 NY Senate Bill S2419; 2015 NY Assembly Bill A7063). By drawing policy-based lines that need not follow the open-ended logic of defendant in this case, the legislature can craft legal principles governing recording and adverse inference charges that realize all of the benefits, and none of the drawbacks, of defendant’s proposed judicial rule-making. Consequently, in the absence of existing law compelling a trial court to issue an adverse inference charge in every case in which the police have failed to take available measures to record an interrogation, we leave it to the legislature to consider whether or not to change the law on this particular issue.

III.

Because defendant’s proposed jury instruction was neither required as a penalty for governmental malfeasance nor akin to a missing witness charge, the Appellate Division properly determined that the trial court did not commit legal error or abuse its discretion as a matter of law by declining to deliver the charge to the jury. Since we agree with the lower courts’ handling of defendant’s sole contention on appeal to us, we need go no further to dispose of this appeal. Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Lippman (concurring). I agree with the majority that the trial court did not abuse its discretion as a matter of law by denying defendant’s request for an adverse inference instruction based on the failure of the police to electronically record his interrogation. I further agree that there is currently no requirement that such instructions need be given in all cases where a recording was not made. However, I write separately to emphasize that things have changed in many respects since defendant was questioned by the police in 2008. Technology has advanced and significant resources have been expended to equip law enforcement with the ability to video interrogations in the effort to increase transparency and prevent wrongful convictions. Indeed, the overwhelming national trend is toward requiring video recording of custodial interrogation of suspects, either as a matter of a state’s duty of fairness or to protect the rights of defendants. Therefore, going forward, trial courts should give serious consideration as to whether adverse inference charges are indicated and, at least in cases involving serious felonies, it may well be that the grant of a defendant’s request and the delivery of the charge is, as a matter of law, the only appropriate course.

The many benefits of recording custodial interrogations are essentially uncontested. The practice holds significant advantages for the entire criminal justice system. First and foremost, recording interrogations reduces the instances of false confessions and, by extension, wrongful convictions. A video recording of the entire proceeding can also obviate any claim that a suspect’s confession has been obtained through improper police tactics. The jury’s ability to see exactly what transpired during an interrogation will improve the accuracy of the fact-finding process and facilitate appellate review. The increased transparency will also promote public confidence in the administration of justice. As the majority observes, there is no dispute that the recording of interrogations is the better practice (see majority op at 344).

In accordance with the national trend, courts in other states have grappled with the absence of recorded statements and, in the face of legislative inaction, have drawn upon their supervisory authority to fashion remedies. For instance, New Jersey’s high court established a committee to study and make recommendations on the electronic recording of interrogations (see State v Cook, 179 NJ 533, 847 A2d 530 [2004]) and ultimately adopted a rule, generally requiring electronic recording of interrogations that are conducted in police stations or other “places of detention,” for individuals who are charged with serious felonies (see NJ Rules Crim Prac rule 3:17; see also Ind Rules Evid rule 617). The failure to record allows the trial court to consider whether the statement should be admissible and is a factor for the jury to consider in determining whether the statement was actually made and, if so, what weight it should be accorded (rule 3:17 [d]; see also Ark Rules Crim Pro rule 4.7). Where the statement was not recorded, the defendant is entitled to a cautionary instruction upon request (see rule 3:17 [e]).

The Massachusetts Supreme Judicial Court has similarly determined that a cautionary jury instruction is appropriate at a defendant’s request, where the prosecution introduces evidence of an unrecorded custodial interrogation (see Commonwealth v DiGiambattista, 442 Mass 423, 447, 813 NE2d 516, 533 [2004]). The instruction advises the jury “that the State’s highest court has expressed a preference that such interrogations be recorded whenever practicable, and caution [s them] that, because of the absence of any recording of the interrogation in the case before them, they should weigh evidence of the defendant’s alleged statement with great caution and care” (442 Mass at 447-448, 813 NE2d at 533-534).

Other state high courts have determined, also in the exercise of their supervisory authority, that custodial interrogations must be recorded and that the failure to do so can result in the suppression of the statement at trial (see State v Scales, 518 NW2d 587, 592 [Minn 1994]; In re Jerrell C.J., 283 Wis 2d 145, 172, 699 NW2d 110, 123 [Sup Ct 2005] [applicable only to juveniles, but the Wisconsin Legislature subsequently enacted separate legislation providing for a jury instruction for felony suspects (Wis Stat Ann §§ 968.073, 972.115)]). Finally, Alaska has held that it is a state due process violation for law enforcers to fail to record a custodial interrogation, where such recording is feasible (see Stephan v State, 711 P2d 1156, 1159 [Alaska 1985]).

Despite the availability of these types of remedies in states as diverse as Alaska and Arkansas, there is currently no such measure in place in New York. However, electronic recording only becomes easier all the time and there is no legitimate argument why this best practice should not become universal in the interest of a fair and impartial justice system. Looking ahead, then, when a law enforcement agency has the capability, but fails to create a video record of a custodial interrogation, a judicial response will be warranted.

Judges Pigott, Rivera and Stein concur; Chief Judge Lippman concurs in result in a separate concurring opinion; Judge Fahey taking no part.

Order affirmed.

       The west side station had a tape recorder but no video recording devices.


source: Caselaw Access Project

author: Abdus-Salaam, J.

license: Public Domain

text:
    [44 NE3d 185, 23 NYS3d 110]
    The People of the State of New York, Respondent, v Ally Golo, Appellant.
    Argued October 22, 2015;
    decided November 23, 2015

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (David P. Greenberg of counsel), for appellant.
    After finding, contrary to the trial court, that appellant was eligible for resentencing under the Drug Law Reform Act of 2009, the Appellate Division was required to remand his case to the trial court for a hearing, rather than merely affirming that court’s secondary ruling that appellant was not deserving of a sentence reduction. (People v Paulin, 17 NY3d 238; People v Finch, 23 NY3d 408; People v Mills, 11 NY3d 527; People v Arroyo, 99 AD3d 515; People v Sosa, 18 NY3d 436; People v Santiago, 17 NY3d 246; People v Bautista, 7 NY3d 838; People v De Jesus, 54 NY2d 447; People v Colon, 89 AD2d 552; People v Jones, 25 Misc 3d 1238[A], 2009 NY Slip Op 52483[U].)

      Richard A. Brown, District Attorney, Kew Gardens (Danielle S. Fenn and John M. Castellano of counsel), for respondent.
    The Appellate Division correctly affirmed the trial court’s denial of resentencing without a hearing. Defendant was ineligible for relief, his hearing claim is unpreserved, and he has failed to identify any factual disputes that necessitated a hearing. (People v Sosa, 18 NY3d 436; People v Backus, 14 NY3d 876; People v Carracedo, 89 NY2d 1059; People v Gamble, 70 NY2d 885; People v Carpenito, 80 NY2d 65; People v Acosta, 80 NY2d 665; People v Coleman, 24 NY3d 114; People v Davis, 24 NY3d 1012; People v Tyrell, 22 NY3d 359; People v Finch, 23 NY3d 408.)
   OPINION OF THE COURT

Abdus-Salaam, J.

In April 2004, defendant pleaded guilty to criminal sale of a controlled substance in the third degree, a class B felony, and he was sentenced in June 2004 to an indeterminate prison term of from 3V3 to 10 years. Defendant had committed that crime in April 2003. Days after he was sentenced on this drug charge, defendant was sentenced, upon his guilty plea to two counts each of robbery in the first degree and of endangering the welfare of a child, in connection with robberies that had occurred in May and June 2003. For these crimes, he was sentenced to two determinate seven-year prison terms for the robbery counts to be served concurrently with each other and two one-year terms for the endangering counts.

Defendant was initially released to parole supervision in September 2009. However, his parole was revoked following his May 2010 arrest for possessing a gravity knife, and he was referred to a drug treatment program. After completing the drug treatment program, he was restored to parole supervision in November 2010. But less than three months later defendant was arrested for possessing cocaine and resisting arrest, and his parole was again revoked in September 2011. He pleaded guilty to a parole violation for resisting arrest and was sentenced to an 18-month parole hold.

In March 2012, defendant moved, pursuant to the Drug Law Reform Act of 2009 (L 2009, ch 56 [codified in relevant part at CPL 440.46] [hereinafter DLRA-3]), to be resentenced on his 2004 conviction for criminal sale of a controlled substance in the third degree. Supreme Court denied the motion for resentencing, holding that defendant was ineligible because he had been convicted of an “exclusion offense” (CPL 440.46 [5] [a]) within the 10-year period between his sentencing on his 2004 conviction for criminal sale of a controlled substance in the third degree and his application for resentencing. The court issued its decision without the parties being present, and without offering defendant an opportunity to appear. The court found that it need not consider defendant’s interest of justice arguments for resentencing, but that even if defendant were eligible for resentencing, the court would still deny his motion in the exercise of its discretion.

The Appellate Division affirmed (109 AD3d 623 [2d Dept 2013]). It disagreed with Supreme Court about defendant’s eligibility to be resentenced, reasoning that defendant’s robbery convictions did not constitute “exclusion offense [s]” within the meaning of CPL 440.46 (5) (a) because they were committed after the drug offense for which he sought resentencing. However, it held that Supreme Court providently exercised its discretion in concluding that considerations of substantial justice dictated the denial of the motion. A Judge of this Court granted leave to appeal (23 NY3d 1037 [2014]), and we now reverse and remit.

As an initial matter, the People argue that Supreme Court properly found that defendant was ineligible for resentencing. We are able to review that argument notwithstanding defendant’s assertion to the contrary (see CPL 470.35 [1]), and agree with the Appellate Division that the 2004 robbery convictions are not “exclusion offense[s]” under CPL 440.46 (5) (a) because defendant’s convictions on the robbery charges occurred after, not prior to, the drug offense for which he seeks resentencing. An “exclusion offense” is defined as

“a crime for which the person was previously convicted within the preceding ten years, excluding any time during which the offender was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony, which was: (i) a violent felony offense as defined in section 70.02 of the penal law; or (ii) any other offense for which a merit time allowance is not available pursuant to [Correction Law § 803 (1) (d) (ii)]” (CPL 440.46 [5] [a] [emphasis added]).

“As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof” (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]). Given the provision’s references to a “previous” felony and the “present” felony, the wording of the statute indicates that exclusion offenses must have been committed before the drug offense for which resentencing is sought (see People v Myles, 90 AD3d 952, 953 [2d Dept 2011] [“The statutory language was not written in anticipation of a situation where the potential exclusion offense was committed after the drug conviction for which the defendant seeks resentencing”]). Our decision in People v Sosa (18 NY3d 436 [2012]) is not to the contrary, as it concerned the interpretation of the phrase “within the preceding ten years,” not the meaning of the term “previously convicted.”

Although we recognize the seeming anomaly that a violent felony committed days after the drug offense cannot count as an exclusion offense, while the same violent felony committed prior to the drug offense could be an exclusion offense, “it . . . remain [s] that the law, as it is written, countenances the disparity and is not properly rewritten to accord more perfectly with judicial or prosecutorial notions of consistency” (People v Sosa, 18 NY3d at 442). Here, as in People v Paulin, where we addressed a different provision of the DLRA-3, we are guided “[b]y the plain text of the statute” (17 NY3d 238, 244 [2011]). If the wording of the statute has caused an unintended consequence, it is up to the legislature to correct it.

Furthermore, as we noted in Paulin, if defendants have shown by their conduct that they do not deserve relief from their sentences, courts can deny their resentencing applications. “A provision of the 2004 DLRA, incorporated by reference into the 2009 DLRA (CPL 440.46 [3]), says that a resentencing application need not be granted if ‘substantial justice dictates that the application should be denied’ (L 2004, ch 738, § 23)” (id. at 244). Thus, while defendant’s conduct after his conviction for the drug offense cannot constitute an “exclusion offense,” it is properly considered by the court in deciding his resentencing application.

We agree with defendant that it was error for the courts below to decide his resentencing motion without giving him an opportunity to be heard. The DLRA-3 states that on a defendant’s application for resentencing, “[t]he court shall offer an opportunity for a hearing and bring the applicant before it” (L 2004, ch 738, § 23; CPL 440.46 [3]). This language is mandatory. The statute also provides that “[t]he court may also conduct a hearing, if necessary, to determine whether such person qualifies to be resentenced or to determine any controverted issue of fact relevant to the issue of sentencing” (id.). Thus, the permissive language authorizing a hearing on the issues of eligibility and sentencing contrasts with the unambiguous directive that the court offer a defendant an opportunity to be heard on the merits of the application. There should be a new determination of the defendant’s motion, to be made after affording him an opportunity to appear before the court (People v Bens, 109 AD3d 664, 665 [2d Dept 2013]).

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

Chief Judge Lippman and Judges Pigott, Rivera, Stein and Fahey concur.

Order reversed and case remitted to Supreme Court, Queens County, for further proceedings in accordance with the opinion herein.


author: Rivera, J. Stein, J.

text:
    [44 NE3d 188, 23 NYS3d 113]
    The People of the State of New York, Appellant, v Frankie Hatton, Respondent.
    Argued October 14, 2015;
    decided November 23, 2015

      Kenneth P. Thompson, District Attorney, Brooklyn (Leonard Joblove and Seth M. Lieberman of counsel), for appellant.
    The count of forcible touching to which the defendant entered a plea of guilty is facially sufficient. (People v Dumay, 23 NY3d 518; People v Steinberg, 79 NY2d 673; People v Bueno, 18 NY3d 160; People v Guaman, 22 NY3d 678; People v Bishop, 41 Misc 3d 144[A], 2013 NY Slip Op 52063[U]; People v Stewart, 57 AD3d 1312; People v Rodriguez, 1 Misc 3d 8; People v Cass, 18 NY3d 553; People v Alvino, 71 NY2d 233; People v Deegan, 69 NY2d 976.)

      Seymour W. James, Jr., The Legal Aid Society, New York City (Arthur H. Hopkirk of counsel), for respondent.
    I. The Appellate Term correctly determined that the factual allegations in the information were facially insufficient to establish all of the elements of forcible touching. (People v Casey, 95 NY2d 354; People v Alejandro, 70 NY2d 133; People v Jackson, 18 NY3d 738; People v Guaman, 22 NY3d 678; People v Steinberg, 79 NY2d 673; People v Dumay, 23 NY3d 518.) II. The Appellate Term correctly concluded that respondent did not knowingly and intelligently waive his right to be prosecuted by information based on statements made by his attorney outside of respondent’s presence during the arraignment in another case before respondent was arraigned. (People v Weinberg, 34 NY2d 429; People v Jackson, 18 NY3d 738; People v Brown, 90 NY2d 872; People v Connor, 63 NY2d 11; People v Fernandez, 20 NY3d 44.)
   OPINION OF THE COURT

Rivera, J.

The People appeal from an order of the Appellate Term reversing defendant Frankie Hatton’s conviction of one count of forcible touching, and dismissing the accusatory instrument as jurisdictionally defective. We conclude the instrument sets forth sufficient factual allegations to establish the elements of the offense, and therefore reverse the order of the Appellate Term and reinstate defendant’s conviction.

Defendant was originally arraigned on three accusatory instruments, each charging him with two counts of forcible touching (Penal Law § 130.52), sexual abuse in the third degree (Penal Law § 130.55) and harassment in the second degree (Penal Law § 240.26 [1]). The separate instruments contained almost identical factual allegations that defendant smacked the buttocks of two different women, for a total of six complainants, over the course of three weeks. The instruments differed only in the date, time and location of the incidents and the respective complainant’s name. The People subsequently filed supporting depositions, and, upon motion, Criminal Court consolidated the three accusatory instruments.

Defendant thereafter pleaded guilty to one count of forcible touching, based upon an incident described by the accusatory instrument’s factual allegations as follows,

“The deponent [police detective] is informed by [the complainant] that, [on June 30, 2009 at about 10:40 p.m. at the corner of Albany Avenue and Montgomery Street, County of Kings, State of New York], a male approached the [complainant] and smacked [her] about the buttocks.
“The deponent is further informed by the [complainant] that the above described actions caused [the complainant] to become alarmed and annoyed.
“The deponent is further informed by [an] eyewitness . . . that at the . . . above time and place, the [eyewitness] observed the defendant approach [the complainant] and the defendant smacked the buttocks of [the complainant].
“The deponent is further informed by the defendant’s own statement that the defendant smacked the buttocks of [the complainant].”

Criminal Court sentenced defendant to a one-year jail sentence, which he has since then completed.

On appeal, the Appellate Term reversed the conviction and dismissed the accusatory instrument based on factual insufficiency grounds (42 Misc 3d 141 [A], 2014 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). A Judge of this Court granted leave to appeal (23 NY3d 1063 [2014]).

As an initial matter, we consider the People’s contention that defendant impliedly waived his right to be prosecuted by information. Whether a defendant has waived a procedural right is a factual question which this Court may review only to determine if the record provides any support for the determination of a lower court (People v Brown, 90 NY2d 872, 874 [1997]; People v Ferguson, 67 NY2d 383, 389 [1986]).

The parties agree that on the day of his arraignment, defendant’s counsel appeared on behalf of someone else, on a matter unrelated to defendant’s case. Outside of defendant’s presence, she then responded ‘Yes” in open court to the court officer’s question, “Counsel, do you waive the reading of the rights and charges, but not the rights thereunder for this case and all other cases before the court?” Several months later, defendant pleaded guilty, in satisfaction of the consolidated instruments. The People contend that the combination of this one-word statement by counsel and defendant’s entry of a guilty plea effectuated an implied waiver of defendant’s right to prosecution by information.

In People v Connor (63 NY2d 11 [1984]) this Court stated that a waiver of the mandated reading of the right does not “by itself constitute a waiver of the procedural right to be tried on information” (id. at 14 n; People v Fernandez, 20 NY3d 44, 55 n 1 [2012]). However, “waiver and consent may be implied if the circumstances . . . compel the conclusion that the defendant, competently represented by counsel, acquiesced in the prosecution of the charge against him on the misdemeanor complaint” (Connor, 63 NY2d at 14). In People v Weinberg (34 NY2d 429, 431 [1974]), the Court made clear that waiver of this right must be knowing and intelligent.

Here, defendant’s counsel stated in open court that she waived only the reading of the rights, but not “the rights thereunder.” Therefore, under Connor, her statement cannot serve as a waiver of defendant’s procedural right to be tried on information (Connor, 63 NY2d at 14 n). More to the point, counsel’s statement specifically preserved his right to prosecution by information. Regardless, unlike the defendant in Con-nor, nothing in the record indicates that in the wake of counsel’s statement defendant acted affirmatively to waive his right, or that he “acquiesced in the prosecution of the charge against him on [a] misdemeanor complaint” (id. at 14 [determining that defendant had acquiesced where defense counsel waived the reading of the right and defendant then made pretrial motions and proceeded to trial]).

Additionally, several days after arraignment the People filed two superseding instruments, six supporting depositions (one from each of the complainants) and a deposition by an eyewitness to the incident defendant eventually pleaded guilty to. Criminal Court recorded these filings as supporting depositions and superseding informations. By all appearances, defendant was, in fact, prosecuted by information. Under these circumstances, record support exists for the Appellate Term’s conclusion that defendant did not impliedly waive his right to prosecution by information.

As a consequence, we assess the sufficiency of the accusatory instrument based on the standard applicable to an information. Under that standard, the factual part of the instrument must establish reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information (CPL 100.40 [1] [b]), and must contain “ ‘nonhearsay allegations which, if true, establish every element of the offense charged and the defendant’s commission thereof ” (People v Dumay, 23 NY3d 518, 522 [2014], citing People v Kalin, 12 NY3d 225 [2009]; CPL 100.40 [1] [c]). Where the information fails to meet this requirement it is jurisdictionally defective (Kalin, 12 NY3d at 228-229). As this Court stated in People v Casey (95 NY2d 354, 360 [2000] [citations omitted]), “[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading.”

The People claim that the accusatory instrument is facially sufficient because the factual allegations and the reasonable inferences to be drawn from them establish all the elements of the offense of forcible touching. Under Penal Law § 130.52, “[a] person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor’s sexual desire.” Furthermore, Penal Law § 130.05 requires that the act be committed without the victim’s consent, meaning that “the victim does not expressly or impliedly acquiesce in the actor’s conduct” (Penal Law § 130.05 [2] [c]; see also § 130.05 [1]).

Here, the factual allegations easily satisfy the facial sufficiency standard for the actus reus elements of the offense. As this Court held in People v Guaman (22 NY3d 678, 684 [2014]), “when done with the relevant mens rea, any bodily contact involving the application of some level of pressure to the victim’s sexual or intimate parts qualifies as a forcible touch within the meaning of Penal Law § 130.52.” Thus, the information’s assertion that defendant “smacked the buttocks” of the complainant, more than adequately alleges that defendant applied the statutorily required pressure to effectuate contact with a part of complainant’s body commonly accepted within society as sexual or intimate in nature (see id. at 684; People v Darryl M., 123 Misc 2d 723, 735 [Crim Ct, NY County 1984] [“the buttocks is an intimate part of the body within the meaning of subdivision 3 of section 130.00 of the Penal Law”]).

The factual allegations also sufficiently establish the complainant’s lack of consent within the meaning of Penal Law § 130.05 (2) (c). The instrument asserts that defendant approached the complainant and smacked her buttocks on a public street intersection, late at night, which caused her “to become alarmed and annoyed.” The reasonable inferences to be drawn from these allegations are that defendant initiated the conduct and took the complainant by surprise. Also, the allegation that defendant’s actions “alarmed and annoyed” the complainant further supports the inference that she did not acquiesce to defendant’s actions. Thus, the instrument sufficiently alleges the lack of consent element.

Whether the instrument contains sufficient factual allegations of the purpose elements is a more difficult question. As a general matter, “intent is rarely proved by an explicit expression of culpability by the perpetrator” (People v Bueno, 18 NY3d 160, 169 [2011] [internal quotation marks omitted]). In recognition of the inherent challenges to demonstrating an actor’s mental state, this Court has accepted that “[i]ntent may be inferred from conduct as well as the surrounding circumstances” (People v Steinberg, 79 NY2d 673, 682 [1992]). Accordingly, in the context of assessing the sufficiency of an accusatory instrument, we have made clear that “intent may be inferred ‘from the act itself’ (People v Bracey, 41 NY2d 296, 301 [1977])” (Dumay, 23 NY3d at 525).

Giving “a fair and not overly restrictive or technical reading” to the instrument (Casey, 95 NY2d at 360), and considering the acts and circumstances described therein (Dumay, 23 NY3d at 525), we conclude that the information provides sufficient factual allegations leading to an inference that defendant forcibly touched the complainant “for no legitimate purpose” and “for the purpose of degrading” the complainant (Penal Law § 130.52). Such inference about defendant’s criminal purpose is appropriate based on the complainant’s lack of consent and the intimate nature of the act, which is commonly considered to cross the line of propriety, absent a prior relationship or experience suggesting the complainant and defendant had a mutual understanding that such conduct was acceptable. Furthermore, by ignoring her right to be free from unwanted intimate contact, defendant disregarded the complainant’s autonomy and personhood. Defendant thus behaved in direct contravention of the complainant’s right to privacy and security in her person. That he did so on a public street, in the presence of an eyewitness, suggests that he was unconcerned by the public display of his actions, and the humiliation evoked by such conduct. Therefore, the information sufficiently establishes the purpose elements of the crime of forcible touching.

Defendant’s argument that a person may smack another on the buttocks for a legitimate purpose, such as in self-defense or in defense of another, does not persuade us that the information here is jurisdictionally deficient. The facts as alleged in no way imply that defendant was acting defensively in response to actions by the complainant. To the contrary, as we have explained, the information alleges that the defendant approached the complainant and it was he who alarmed her by slapping an intimate part of her body. We thus agree with the People that the factual allegations here are inconsistent with circumstances in which smacking another person would not constitute forcible touching.

We caution that our decision in this case should not be broadly interpreted as a per se rule that the mere assertion that a defendant smacked the buttocks of another sufficiently alleges the purpose elements of the statute. The facial sufficiency of an accusatory instrument must be assessed on a case-by-case basis, upon review of the factual assertions contained therein (see CPL 100.40 [1] [b], [c]; 100.15 [3]). As we have said, intent is difficult to discern. Factors such as defendant’s expressive conduct, the surrounding circumstances, the location of the incident and the existence of a prior relationship or a common understanding between the parties, may support or negate an inference that defendant harbored the statutory purpose.

For the reasons we have stated, here the factual portions of the information “provide reasonable cause to believe that the defendant committed the offense charged” (CPL 100.40 [1] [b]), and those factual allegations are of the kind that “give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense” (Casey, 95 NY2d at 360 [citations omitted]).

Accordingly, the order of the Appellate Term should be reversed, and the judgment of Criminal Court of the City of New York reinstated.

Stein, J.

(dissenting). To be legally sufficient, the factual part of the information must establish reasonable cause to believe that defendant committed the charged offense (see CPL 100.40 [1] [b]), and contain “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant’s commission thereof” (People v Kalin, 12 NY3d 225, 228-229 [2009] [emphasis added, internal quotation marks and citation omitted]; see People v Dumay, 23 NY3d 518, 522 [2014]; People v Alejandro, 70 NY2d 133, 135-136 [1987]). As relevant here, the information factually alleged that, at about 10:40 p.m. at the corner of specified streets, defendant “approached the [complainant] and smacked the [complainant] about the buttocks,” which she described as causing her “to become alarmed and annoyed.” Because I cannot agree with the majority’s conclusion that the information contains sufficient allegations concerning the element of the offense of forcible touching that defendant committed the act “for no legitimate purpose” (Penal Law § 130.52), I dissent.

While I recognize that an information need not negate all possible defenses (see People v Casey, 95 NY2d 354, 360 [2000]), the lack of a legitimate purpose does not merely pertain to a defense; it is a distinct element of the crime of forcible touching that must be affirmatively established by the People. As with other elements relating to an offender’s state of mind, that purpose element could be established through reasonable inferences drawn from defendant’s actions and the surrounding circumstances (see People v Steinberg, 79 NY2d 673, 682 [1992]). However, in my view, even under a “fair and not overly restrictive or technical reading” (Casey, 95 NY2d at 360), the factual allegations here are simply too sparse to create or support any inferences establishing the “no legitimate purpose” element of the charged crime. The information is completely bereft of any facts or details about the ages of the involved parties or their relationship (or lack of relationship) to each other — a factor that even the majority recognizes as relevant (majority op at 370-371). Thus, it is reasonably possible that defendant could be the parent, guardian or custodian of the complainant — who may be a minor — smacking her buttocks as a method of discipline, which could have annoyed and alarmed her despite defendant’s arguably legitimate purpose. Although some speculation may be required to conclude that defendant was so related to the complainant and had such a legitimate purpose, the point is that speculation is also required to reach the opposite conclusion, as the majority has apparently done— speculation that could have been avoided simply by including sufficient factual allegations in the information to support the charge. For example, an allegation that defendant and the complainant were strangers to one another might have adequately added the necessary context.

Nor does the fact that the information charges defendant with another similar count against a different victim on a separate occasion support the element of lack of a legitimate purpose. Without any details about what occurred prior to the other incident, the relationship of defendant to that complainant, or their respective ages, we would have to engage in the same speculation as to whether defendant lacked a legitimate purpose with regard to his acts toward the other complainant, as well. Repetitions of the same or similar insufficient allegations do not render them sufficient. Likewise, we may not consider the other informations — alleging additional, similar incidents against different complainants — when determining the facial sufficiency of the information at issue.

Inasmuch as the allegations in the one pertinent information fail to establish “every element of the offense charged and the defendant’s commission thereof” (CPL 100.40 [1] [c]), the information did not adequately charge defendant with forcible touching, rendering it jurisdictionally defective (see People v Jackson, 18 NY3d 738, 741 [2012]). Because the Appellate Term reached this same conclusion, I find no error in its decision to reverse defendant’s conviction and dismiss the accusatory instrument and would, therefore, affirm.

Chief Judge Lippman and Judges Pigott, Abdus-Salaam and Fahey concur; Judge Stein dissents and votes to affirm in an opinion.

Order reversed and judgment of Criminal Court of the City of New York, Kings County, reinstated.

      . Given that section 130.52 sets forth the purpose elements in the disjunctive, we need not determine whether the instrument is factually sufficient to establish an inference that the act was done “for the purpose of gratifying [defendant’s] sexual desire” because we conclude that the instrument contains sufficient factual allegations to establish the alternative purpose that defendant’s actions were done in order to “degrad [e] or abus[e]” the complainant.

      . The dissent urges the speculative inference that at the time of the incident the complainant was a minor, and that defendant acted for the legitimate purpose of disciplining her in his role as the complainant’s parent, guardian or custodian (dissenting op at 373). However, in assessing the sufficiency of an instrument the role of the court is not to base its decision on unfounded speculations, but to consider only those proper inferences to be drawn from the factual allegations contained in the information. Here, where the allegations state that defendant approached the complainant late at night on a public street and smacked her buttocks, causing her to be alarmed and annoyed, it is implausible to infer that defendant was acting as a disciplinarian and in response to an unruly minor. Not even the defendant goes so far as to suggest this inference. To the contrary, defendant describes the information as charging him with touching a woman.
      Furthermore, although our dissenting colleague acknowledges “that an information need not negate all possible defenses” (dissenting op at 372, citing Casey, 95 NY2d at 360), the approach advocated by the dissent would require nothing less than assertions responsive to every interpretation of facts favorable to the defendant. As this Court’s prior decisions make abundantly clear, the law does not impose such an onerous burden on the People and we see no reason to change course based on the instant appeal (Casey, 95 NY2d at 360; Guaman, 22 NY3d at 681-682).

      . Contrary to the majority’s assertion, it is not this writer’s intent to urge any particular inference, but merely to highlight the inadequacy of the information’s factual allegations.

      . Similarly, despite the majority’s reference to facts known by defendant about the complainant (see majority op at 371 n 2), in ascertaining the sufficiency of the accusatory instrument, it is not appropriate for the Court to consider facts within defendant’s personal knowledge, which are not set forth in the instrument itself.