text:
    [630 NE2d 638, 608 NYS2d 942]
    In the Matter of County of Monroe, on Behalf of Monroe Community Hospital, Respondent, v Gregory Kaladjian, as Acting Commissioner of the Department of Social Services of the State of New York, et al., Appellants.
    Argued January 5, 1994;
    decided February 15, 1994

      POINTS OF COUNSEL

      G. Oliver Koppell, Attorney-General Albany (Patrick Barnett-Mulligan, Jerry Boone and Peter H. Schiff of counsel), for appellants.
    I. The Court below erred in concluding that petitioner’s claim of error with regard to its estimated electrical usage for base year 1983 was timely raised with the Department. (Watergate II Apts, v Buffalo Sewer Auth., 46 NY2d 52; Matter of Eastman Dental Ctr. v Axelrod, 129 AD2d 254; Matter of St. Mary’s Hosp. v Axelrod, 108 AD2d 1068; Sunset Nursing Home v Whalen, 99 AD2d 206.) II. The Court below was without authority to direct the Department of Health to calculate petitioner’s Medicaid reimbursement based on its actual 1990 electrical usage. (Matter of Association of Secretaries to Justices of Supreme & Surrogate’s Cts. v Office of Ct. Admin., 75 NY2d 460; Matter of Ahsaf v Nyquist, 37 NY2d 182; Matter of Berger v Walsh, 291 NY 220; Burke’s Auto Body v Ameruso, 113 AD2d 198; Rob Tess Rest. Corp. v New York

      State Liq. Auth., 49 NY2d 874; Matter of Bellacosa v Classification Review Bd., 72 NY2d 383; Matter of Severino v Ingraham, 44 NY2d 763; Matter of Sigety v Ingraham, 29 NY2d 110; Matter of Brookdale Hosp. Med. Ctr. v Axelrod, 120 AD2d 144.) III. The Court’s finding that petitioner is entitled to have its 1991 rate calculated on the basis of its actual electrical usage for 1990 is not supported by the record and is in conflict with applicable law. (Matter of Beekman-Downtown Hosp. v Whalen, 44 NY2d 124; Matter of Grace Plaza of Great Neck v Axelrod, 99 AD2d 575; Matter of Westledge Nursing Home v Axelrod, 90 AD2d 915.)

      Charles S. Turner, County Attorney of Monroe County, Rochester (John P. Costello of counsel), for respondent.
    I. The lower Court’s finding is supported by the record and applicable law. (Matter of Mount Loretto Nursing Home v Perales, 169 AD2d 47; Matter of Westledge Nursing Home v Axelrod, 68 NY2d 862; Tioga Nursing Home v Axelrod, 90 AD2d 570, 60 NY2d 717; Matter of Eger Health Care Ctr. v McBarnette, 195 AD2d 730; Matter of Grace Plaza of Great Neck v Axelrod, 99 AD2d 575.) III. The Court below acted properly in ordering the matter remitted to DOH with directions to calculate a new reimbursement rate. (Matter of Industrial Liaison Comm. v Williams, 72 NY2d 137; Matter of Heimbach v Metropolitan Transp. Auth., 75 NY2d 387; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Association of Secretaries to Justices of Supreme & Surrogate’s Cts. v Office of Ct. Admin., 75 NY2d 460.) III. The administrative appeal was timely. (Matter of Parkway Hosp. v Axelrod, 178 AD2d 644; Matter of Trump-Equit. Fifth Ave. Co. v Gliedman, 57 NY2d 588; Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371; Matter of Celestial Food Corp. v New York State Liq. Auth., 99 AD2d 25; Unemployment Commn. v Aragon, 329 US 143; Aldrich v Pattison, 107 AD2d 258; Watergate II Apts, v Buffalo Sewer Auth., 46 NY2d 52.)
   OPINION OF THE COURT

Smith, J.

The issue in this case is whether the Department of Health’s (DOH) decision to deny petitioner Monroe County’s request, on behalf of its County hospital operation, for additional Medicaid reimbursement due to the difference between petitioner’s estimated electric utility costs for 1983, a rate base year, and actual usage in 1990, was arbitrary and capriclous. Concluding that DOH’s determination was not arbitrary and capricious, we reverse the order of the Appellate Division that allowed recovery of such costs.

Petitioner, Monroe Community Hospital (Hospital), is an institution for extended care and treatment of the chronically ill. Under provisions of article 28 of the Public Health Law, acute care hospitals such as petitioner receive reimbursement for services rendered to Medicaid-eligible patients (see, Public Health Law § 2807 [3]). Pursuant to 10 NYCRR 86-2.10 (b) (1) (i), petitioner was required to use "statistical data submitted by the facility for the fiscal year ending December 31, 1983” to determine its reimbursement rate. The reimbursement rate consists of the following components: (1) direct costs, (2) indirect costs, (3) noncomparable costs, and (4) capital costs. The noncomparable component of the rate consists of costs which are not subject to peer facility comparison due to their nature (see, 10 NYCRR 86-2.10 [¶] [1]). Electricity costs are part of noncomparable costs.

When DOH reviewed petitioner’s 1983 costs, petitioner was sharing an electrical meter with three other facilities operated by Monroe County. In complying with the regulatory scheme petitioner estimated its share of those costs at 6,929,954 kilowatt hours. In 1990, after petitioner installed a meter to determine its actual electrical usage, petitioner assumed that it had underestimated its usage for 1983 because, according to the meter, its actual kilowatt hours were 8,761,200. Because its electrical costs would, in the future, reflect actual rather than estimated usage, petitioner sought increased reimbursement for 1991.

Petitioner sought this adjustment, however, based on what it referred to as an increase in "the electric usage” due to "[u]pdating and modernizing of electric systems.” DOH recommended denial of petitioner’s request because petitioner had failed to seek prior DOH authorization for "updating and modernizing” of the electric systems, in contravention of the regulatory scheme. The Director of the Bureau of Hospital Reimbursement concluded that the project "resulted from a management decision * * * [and] no authority [exists] in regulation for additional reimbursement in this case, and no adjustment [was] warranted.”

Petitioner requested a hearing as authorized pursuant to 10 NYCRR 86-2.14 (b) (1) to address the denial of its appeal. That regulation requires that the hearing request be denied unless there are factual issues that must be resolved. In its issue statement, petitioner alleged no factual dispute but changed the reason for the increase in the facility’s utility costs from increase in costs from increases in usage due to modernizing and updating of the electronic systems to its claim that the "1990 meter readings showed an increase in kwh [kilowatt hours] charged by the County to the Hospital of 26.4% in 1990 when compared to the 1983 estimated kwh charged.”

DOH’s rate review officer determined that the governing regulations made "no provision for additional reimbursement due to a change in the method of capturing costs.” Because petitioner’s "appeal and reappeal raise[d] no issues of fact,” the officer denied petitioner’s request for a hearing.

Petitioner then commenced this CPLR article 78 proceeding. Supreme Court annulled DOH’s determination as arbitrary and capricious and remitted the matter to DOH requiring it to redetermine petitioner’s reimbursement rate in light of petitioner’s 1990 metered figures. DOH appealed to the Appellate Division and that Court affirmed, with two Justices dissenting. DOH appeals, as of right, to this Court pursuant to CPLR 5601 (a).

Here, petitioner argues that the prior courts’ findings are supported by the record and applicable law. Appellant DOH contends that the prior courts had no authority to direct it to calculate petitioner’s Medicaid reimbursement based on the 1990 metered figures and that the courts’ determinations were not supported by the record and conflict with relevant law.

The appropriate standard of review here is whether DOH’s determination was arbitrary and capricious. This settled standard requires the Court to assess whether the action in question was taken "without sound basis in reason and * * * without regard to the facts” (see, Matter of Pell v Board of Educ., 34 NY2d 222, 231). DOH’s determination need only be supported by a "rational basis” (see, Matter of Heintz v Brown, 80 NY2d 998, 1001; Matter of Pell v Board of Educ., supra).

We conclude, and agree with the dissenters at the Appellate Division, that DOH’s determination denying petitioner’s reap-peal was not arbitrary or capricious. As DOH contends, several reasons support its decision to deny petitioner’s request.

Aside from its explanations concerning its revised cost-capturing procedure, petitioner failed to sufficiently allege how its 1983 metered readings of its utility costs contain "error” for purposes of the regulation (see, 10 NYCRR 86-2.13). Although petitioner claims here that the 1983 estimates constitute "error” because the 1990 metered readings indicate a 26.4% discrepancy as compared to the 1983 estimates, it is not clear that the only explanation for the discrepancy is that the 1983 rate indicates "error.” Other factors could explain the increase in kilowatt hours. Perhaps petitioner was not as efficient in its utility use as in 1983. Public Health Law § 2807 (3) obliges respondent to reimburse only for expenses incurred in the course of efficient and economic operation of a facility. It was therefore not arbitrary for DOH to deny reimbursement where no regulation authorized such for petitioner’s change in its method of capturing costs and petitioner’s actual expenses may have been incurred as a result of inefficiency.

Pursuant to 10 NYCRR 86-2.14 (b) (1), the set reimbursement rate is deemed final absent a timely request for a hearing containing "a statement of the factual issues to be resolved.” The rate review officer determined that petitioner presented no factual issue requiring a hearing and when the officer makes that determination, "the request for a hearing shall be denied” (see, 10 NYCRR 86-2.14 [b] [2]). Petitioner claimed no sufficient "factual issue,” and sought to assert a new ground to support its position that it was entitled to additional reimbursement. Thus, DOH’s rate review officer’s decision could have been upheld on that ground alone.

Additionally, notwithstanding petitioner’s contentions to the contrary, the difference between petitioner’s first and second level appeals consisted of more than a mere "clarification” of the basis of the appeals; petitioner changed the substance of the grounds for the relief it sought and its second claim was raised in an untimely manner. At the first appeal, petitioner claimed that the "updating and modernizing” of its electric systems caused the increase in its electric usage. At its second stage appeal, petitioner claimed that the increase in its electric costs was due to inaccurate estimates of its 1983 usage. Assuming for the moment that this ground constitutes an "error,” the regulations specify that rates may be adjusted where errors are "brought to the attention of the commissioner within 120 days of receipt of the commissioner’s initial rate computation sheet” (see, 10 NYCRR 86-2.13 [a]; 86-2.14 [b]). Petitioner received the rate computation sheet on November 2, 1990 and asserted its "clarification” upon its second level appeal on July 1, 1991. Petitioner’s asserted basis for its second stage appeal, differing entirely in substance from the first appeal, would have unquestionably been denied as untimely had petitioner asserted it on the same date absent the first appeal. Thus, petitioner may not evade timeliness constraints by claims of "clarification” of substantive grounds as opposed to straightforward substitution.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

Chief Judge Kaye and Judges Simons, Bellacosa, Levine and Ciparick concur; Judge Titone taking no part.

Order reversed, etc.


source: Caselaw Access Project

author: Levine, J. Smith, J.

license: Public Domain

text:
    [630 NE2d 641, 608 NYS2d 945]
    The People of the State of New York, Respondent, v Edward Voliton, Appellant.
    Argued January 6, 1994;
    decided February 22, 1994

      POINTS OF COUNSEL

      Monroe A. Semble and John F. Middlemiss, Jr., Riverhead, for appellant.
    I. It is violative of due process for appellant to be stigmatized by two misdemeanor convictions when his actions were a measured and restrained response to gross police illegality. These convictions should be reversed and the corresponding counts of the indictment dismissed. (People v Isaacson, 44 NY2d 511; People v McLucas, 15 NY2d 167.) II. The Court below itself found that the police had unlawfully arrested appellant. Consequently appellant’s conviction of resisting arrest should be reversed and the corresponding count of the indictment dismissed. (People v Peacock, 68 NY2d 675.)

      James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Karen Petterson of counsel), for respondent.
    I. Neither due process nor interest of justice require reversal of appellant’s convictions. (People v Brown, 136 AD2d 1; People v Isaacson, 44 NY2d 511; People v Boodle, 47 NY2d 398; People v Townes, 41 NY2d 97; Wong Sun v United States, 371 US 471; Nardone v United States, 308 US 338; People v Weldon, 171 AD2d 712; People v Gonzalez, 79 NY2d 892; People v De Bour, 40 NY2d 210; People v Hollman, 79 NY2d 181.) II. The conviction for resisting arrest should be affirmed based on the probable cause which existed to arrest appellant on the assault in the third degree charge. (Wong Sun v United States, 371 US 471; Nardone v United States, 308 US 338.)
   OPINION OF THE COURT

Levine, J.

After a jury trial, defendant was convicted of two counts of assault in the second degree, for causing physical injuries to two officers of the Suffolk County Police Department with intent to prevent each of them from performing a lawful duty; assault, third degree, for recklessly causing physical injury to one of the officers; and resisting arrest.

The charges against defendant arose from an incident which began about 3:00 a.m. November 18, 1987 on Davidson Street in Wyandanch. While patrolling in a marked police car, uniformed Suffolk County Police Officers James Faughnan and Bryan Carty observed a red Hyundai automobile parked partly on the street and partly on the dirt yard of an abandoned house which they believed to be the site of drug and prostitution activities. The officers’ version of what transpired was as follows. They pulled alongside the Hyundai and asked defendant, sitting in the driver’s seat, for his license and registration and an explanation for his presence at that location. Defendant responded by rolling his window up, making an obscene hand gesture and slowly moving his vehicle forward. The officers then moved the patrol car at an angle to block defendant’s forward movement and exited to position themselves on each side of defendant’s vehicle. Because it was dark, raining and the windows of the Hyundai were tinted, the officers had difficulty seeing inside defendant’s vehicle. But when they saw defendant appear to be reaching down for something below the passenger seat, the officer near the passenger’s side broke the side window with his flashlight and ordered defendant at gunpoint to come out of his vehicle. Defendant then wildly maneuvered his car to extricate himself from the situation and eventually did so, but not before both officers were injured by contact with the Hyundai and three shots were fired by the police at defendant’s car, one of which hit defendant in the elbow. After a high-speed chase for several miles, culminating at a dead-end street, defendant fled from his vehicle by foot and was then apprehended by Officer Faughnan and placed in handcuffs after a physical struggle in which he kicked and punched both officers.

The Appellate Division vacated the two assault, second degree, convictions and dismissed those charges (190 AD2d 764). Relying on our holding in People v May (81 NY2d 725) (decided after defendant’s trial), the Appellate Division concluded that the police officers were engaged in an unlawful seizure of defendant when they detained him by blocking his vehicle and displaying their weapons without having any reasonable suspicion that criminal activity was afoot at the time. The illegality of the seizure, therefore, negated a necessary element of the assault, second degree, convictions, i.e., that the defendant’s acts against the police in evading detention were committed "[w]ith intent to prevent [them] from performing a lawful duty” (Penal Law § 120.05 [3] [emphasis supplied]). Because the illegality of the seizure of defendant by the police had not been raised at the trial level, however, the Appellate Division invoked its interest of justice discretionary authority to vacate and dismiss the felony assault convictions (see, CPL 470.15 [3]). The Court, however, affirmed the convictions for reckless assault, third degree, and resisting arrest. A Judge of this Court granted defendant leave to appeal. We now affirm.

On this appeal from the affirmance of his assault, third degree, and resisting arrest convictions, defendant urges only two points. The first of his grounds for reversal is that substantive due process bars convicting him for actions in direct response to the "grossly” illegal seizure of his person by the police. As defendant concedes, however, this constitutional objection was raised for the first time before the Appellate Division and, thus, is beyond our power to review unless it falls within the narrow class of cases in which we have held preservation by timely objection is unnecessary.

Exceptions to the preservation rule have been limited to errors going to the very organization of the court or at such basic variance with the mode of procedure mandated by law that they impair the essential validity of the criminal proceedings (see, People v Patterson, 39 NY2d 288, 295-296; see also, People v Michael, 48 NY2d 1, 6). We have generally applied the preservation rule to due process objections (see, e.g., People v Iannelli, 69 NY2d 684, 685; People v Barry A., 40 NY2d 991, 993). Notably, in People v Patterson (53 NY2d 829, 831) we held that an objection based upon an unlawful seizure of the defendant’s person was fully subject to the timely preservation requirement. Defendant’s challenge to the constitutionality of his conviction based on the unlawful seizure of his person by the police here is not distinguishable in kind from that raised by the defendant in People v Patterson (supra) as to whether some exception to the preservation rule applies (see also, People v Dancey, 57 NY2d 1033, 1035; People v Martin, 50 NY2d 1029, 1031). Accordingly, we find this claim unpreserved for our review.

Defendant’s remaining point is addressed only to his resisting arrest conviction. He argues that because the Appellate Division expressly found that the acts of the police in detaining and attempting to seize him "were unlawful at the time the alleged injuries [to the police] were inflicted” (190 AD2d 764, 767, supra), defendant’s arrest by the police was not "authorized”, thus negating an essential element of the crime of resisting arrest (see, Penal Law § 205.30; People v Peacock, 68 NY2d 675, 677). We disagree.

The trial court charged the jury that, to find defendant guilty of resisting arrest, it was required to find beyond a reasonable doubt, inter alla, that defendant "punched and kicked” the two officers, knowing that they were police officers, and in doing so intentionally attempted to prevent the officers from effecting an authorized arrest. Both officers testified that the only punching and kicking by defendant occurred well after the initial incident on Davidson Street and defendant’s flight therefrom, when Officer Faughnan apprehended him on foot and both officers were attempting to subdue and handcuff him. Although defendant gave a different version of his and the officers’ conduct when he was finally apprehended, there is no reasonable view of the evidence that any punching or kicking by him occurred at any earlier point in the entire incident.

Similarly, under the trial court’s very specific fact-related instructions to the jury in submitting assault, third degree, as a lesser included offense to one of the other counts of the indictment, the verdict convicting defendant of assault in the third degree was necessarily based upon the jury’s finding that Officer Carty was injured by contact with defendant’s car during the initial Davidson Street encounter as a result of defendant’s reckless conduct in maneuvering his automobile to avoid being detained by the officers. Defendant has not disputed the legal sufficiency of the People’s evidence to support that finding.

Moreover, there is no issue properly before this Court of defendant’s justification for his use of force in this initial encounter with the police. Penal Law § 35.27 provides that "[a] person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer * * * when it would reasonably appear that the latter is a police officer” (emphasis supplied). Defendant did not timely request a jury instruction that he would have been justified in using physical force in self-defense against any excessive force employed by the police in attempting to detain him (cf., People v Stevenson, 31 NY2d 108, 112) and the trial court’s refusal to entertain defendant’s belated request to charge surely cannot be viewed as an abuse of discretion as a matter of law. Therefore, defendant’s commission of an assault, third degree, against Officer Carty during that initial encounter furnished the predicate for his subsequent authorized arrest by Officer Faughnan. Accordingly, defendant’s conviction for resisting that arrest was properly affirmed by the Appellate Division.

The order of the Appellate Division should be affirmed.

Smith, J.

(dissenting). Because the trial in this case was fundamentally flawed, I dissent and would reverse the order of the Appellate Division. First, defendant was denied the opportunity to have a jury consider his position that his actions were justified when the trial court declined to give a charge on justification. Second, defendant’s argument that his convictions violate due process should be reviewed by this Court even in the absence of preservation. Third, he was entitled to have a jury consider the charge of assault in the third degree with the knowledge that the conduct of the police was illegal. Fourth, no basis existed for a conviction for resisting arrest.

I

Defendant’s conviction, after a jury trial, of two counts of assault in the second degree, assault in the third degree, and resisting arrest, stemmed from an altercation with two police officers as he sat in his car with a female companion, and in which the police officers were allegedly injured. The Appellate Division vacated the conviction of two counts of assault in the second degree and the sentences imposed thereon and dismissed those counts from the underlying indictment (190 AD2d 764). The Court concluded that the police officers were "not acting lawfully at the time that they were allegedly injured,” that they "had no right to demand that the defendant produce his driver’s license and registration,” and that they "had no right to detain or to arrest the defendant based upon his refusal to do so” (id., at 766). The Court concluded further that "the officers’ efforts to detain, arrest, and later shoot the defendant were unlawful at the time the alleged injuries were inflicted” (id., at 767). Nevertheless, the Court affirmed the judgment of County Court insofar as it convicted defendant of assault in the third degree and resisting arrest (see, 190 AD2d 764, supra). A Judge of this Court granted leave to appeal (81 NY2d 978).

II

The facts demonstrate, as the Appellate Division concluded, that the conduct of the police in this case was unlawful. On November 18, 1987, at approximately 3:00 a.m., as Police Officers James Faughnan and Bryan Carty drove through the Town of Wyandanch, Suffolk County, on patrol, they observed defendant and a female companion seated in a red Hyundai vehicle, with the engine running and the headlights on. Based on the belief that the location was a "high drug area,” and that defendant’s car was near a "big hangout for drugs and prostitution,” the officers pulled up alongside the vehicle and demanded the license and registration of defendant, who was in the driver’s seat. Defendant ignored the officers’ demand, gestured to one of them with his middle finger, and began to drive away. The officers then used their vehicle to block defendant’s path, exited their patrol car and approached defendant’s car. Officer Carty approached on the driver’s side while Officer Faughnan went to the passenger side, brandishing a revolver in his left hand and a flashlight in his right hand. The officers permitted the female passenger to exit the car and leave the area. Defendant reached toward the passenger side of his vehicle. Observing this movement, Officer Carty yelled to Officer Faughnan, who smashed the passenger side window with his flashlight. In endeavoring to prevent his arrest by maneuvering his car out of an obstruction created by the police, defendant thereafter responded to a continuous, escalating encounter precipitated by the officers’ unlawful conduct. His reactions were immediate, spontaneous, and proportionate to the officer’s use of excessive force. Given the display of violence by one of the officers, defendant understandably did not comply with the commands to get out of his car. Instead, he attempted to escape the precarious situation by maneuvering his car out of the impasse. In so doing, his car collided with Officer Carty, slightly injuring him. The officers responded by firing three shots into defendant’s car. One of the bullets penetrated defendant’s arm. Obviously fearing for his life at this point, defendant managed to depart the area and, in so doing, bumped into Officer Faughnan with his car and knocked him to the ground, causing injury. The two officers returned to their patrol car and pursued defendant. At some point defendant exited his vehicle and fled on foot. After a brief chase, defendant was handcuffed and arrested. A search of defendant’s car revealed no weapons or drugs.

Ill

First, defendant was denied the opportunity to have the jury consider his contention that his actions were justified. The trial court refused to instruct the jury on the defense of justification. Prior to the court’s charge to the jury, defendant requested that the court adapt Penal Law § 35.30 ("Justification; use of physical force in making an arrest or in preventing an escape”) to the facts of this case. Specifically, the record indicates that the following colloquy took place:

"[defense counsel]: What I’m asking is that the Court encompass in its charge portions of Section 35.30.
"the court: 35.30 of the Criminal Procedure Law? "[defense counsel]: Of the Penal Law, applicable sections specifically relating to force, the use of deadly force, and I’m certain the Court can interpret that as it applies in this instance.
"the court: That has five subdivisions. Are you referring to a specific one? Do you want to look at it * * *?
"[defense counsel]: I’m looking at it right now.
"[law secretary to trial judge]: Do you want the entire installment charged?
"the court: There are certain portions of the section that deal with private people.
"[defense counsel]: No. I’m talking primarily 1 and the subdivisions thereof; 2 and 3 I don’t even think are applicable. I’m speaking too quickly. Yes, Section 1.
"[law secretary]: 1 and 1 (a).
"[defense counsel]: 35.30 Sub 1 (a), and you can’t take portions. It’s not fully disclosing. I’m trying to cover the variations encompassed in the statute.
"[law secretary]: So the entire section 1?
"[defense counsel]: Entire section 1, ending with Sub (c) or whatever you want to call it. I do not feel that Sections 2 and 3 are applicable or have any bearing on the facts here.
"[law secretary]: Can I have a question off the record?
"the court: Off the record. (Discussion held off the record)
"the court: Since Section 35.30 does not appear to the Court to apply in the instant case, the Court denies the request.”

After the jury charge, defense counsel specifically requested a charge on justification. The following colloquy took place: "the court: Any exceptions or requests * * *.

"[defense counsel]: If your Honor please, I had not gone into this before. This is an element here which was not charged. That is with respect to the self-protection, self-defense, with respect to the actions of the defendant.
"the court: You mean justification?
"[defense counsel]: Justification.
"the court: It wasn’t requested.
"[defense counsel]: I’m saying it was not requested. In sitting here I thought that would be encompassed in the charge.
"the court: Only if the charge is requested.
"[defense counsel]: Would your Honor consider, even at this late time, offering that charge on that question?
"[prosecutor]: Judge, I would object. I didn’t have a chance to sum up on it.
"the court: That’s the problem.
"[defense counsel]: My error. I had thought that it was going to be encompassed in the charge.
"the court: It’s not a standard charge. When I read the proposed charges to you, I did not include justification.
"[defense counsel]: I am aware of that.”

Each time, the trial court denied the request to charge.

IV

Second, on this appeal, defendant argues, as he did at the Appellate Division, that his due process rights under both the Federal and State Constitutions were violated by his convictions following an illegal seizure of his person by the police. This argument, while not specifically made at the trial level, is related to the contention and request for jury instructions on whether his actions were justified. The argument was made in the Appellate Division.

This case comes within the general rule that no preservation is necessary where the claimed defect goes to "the organization of the court or the mode of proceedings proscribed [sic] by law” (see, People v Patterson, 39 NY2d 288, 295). The Patterson Court also stated that there were, occasionally, broader expressions of this rule. Thus, the Patterson Court stated:

"Thus, the rule has come down to us that where the court had no jurisdiction, or where the right to trial by jury was disregarded, or where there was a fundamental, nonwaivable defect in the mode of procedure, then an appellate court must reverse, even though the question was not formally raised below * * *.
"This traditionally limited exception has, on occasion, been given broader expression.” (People v Patterson, 39 NY2d, at 295, supra.)

As in Patterson the claimed error here "goes to the essential validity of the proceedings” (39 NY2d, at 296), and should be reviewed by this Court (compare, Cohen and Karger, Powers of the New York Court of Appeals § 55 [referring to appeals in civil cases — "failure to urge the constitutional question in the court of original instance is not fatal to the appeal, so long as the question was properly presented to the Appellate Division and necessarily involved in its decision”]; see also, 2 Newman, New York Appellate Practice § 13.08 [3] [d]).

The facts in the cases cited by the majority as precluding a review of a due process claim because of an absence of preservation do not involve unlawful police conduct. In People v Iannelli (69 NY2d 684), the defendant did not raise the issue that the statute prohibiting aggravated disorderly conduct was unconstitutional until after he was convicted. In People v Barry A. (40 NY2d 991), this Court refused to entertain an argument that a youthful offender statute was unconstitutional because it was not raised until an appeal was taken. In People v Patterson (53 NY2d 829), both the trial court and the Appellate Division found that statements made to the police were voluntarily made and were not in violation of defendant’s right against self-incrimination. This Court then refused to hear a challenge, made on appeal, that those statements were in violation of defendant’s right to be secure in his person. In no sense do these cases stand for the proposition that a claimed due process violation resulting from illegal police conduct, and defendant’s shooting and incarceration, is beyond this Court’s power to review.

Third, defendant was entitled to have the jury consider the charge of assault in the third degree with the knowledge that defendant’s actions were in response to illegal police conduct. Fundamental fairness requires that this case be presented to a jury not on a theory of proper police conduct but in terms of the unlawful police action found by the Appellate Division.

In its instruction to the jury on the charge of assault in the third degree, the trial court included the following five elements of that crime:

1. That on November 18, 1987, the defendant revved the motor of his car and moved it, causing it to slide into Bryan Carty, a police officer;
2. That at the time he did so, defendant was aware of a substantial and unjustifiable risk;
3. That the defendant consciously disregarded a substantial and unjustifiable risk of physical injury;
4. That the defendant’s conscious disregard of the risk was a gross deviation from the standard of conduct that a reasonable person would observe in that situation;
5. That defendant’s act caused serious physical injury to Bryan Carty.

In determining whether defendant’s conduct under the circumstances was a gross deviation from the conduct of a reasonable person, the jury should have been instructed that the conduct of the police officers was illegal. That fact bore on the reasonableness of the defendant’s conduct.

Fourth, no basis exists for a conviction for resisting arrest. The majority attempts to limit that conviction to the time after the chase when defendant was caught and allegedly struggled with the officers (see, majority opn, at 196). However, this was not the limitation on which the prosecution tried the case. According to the record before the Court, the prosecutor’s summation included the following:

"I submit to you, ladies and gentlemen, that from the time he took off at the scene of the incident, 10 Davidson Avenue [sic], all the way until the time he was apprehended, that’s resisting. Driving away from police officers, shutting off the lights, traveling over several streets, getting to his house, and then at his house, jumping two fences, running around the house and trying to flee from the police officers, that’s resisting.
"Once they actually have him in their hands, he kicks and punches. That all constitutes Resisting Arrest.”

The charge of resisting arrest required the People to prove that defendant intentionally prevented or attempted to prevent a police officer "from effecting an authorized arrest” (Penal Law § 205.30). Here, no probable cause existed for the police to effect an arrest. As the Appellate Division concluded, the police conduct was unlawful.

On facts similar to those presented in this case, this Court concluded that the police had no reasonable ground to believe that the defendant had committed, was committing or was about to commit a crime, no probable cause existed to authorize the defendant’s arrest, and, therefore, the defendant could not be guilty of resisting arrest (see, People v Peacock, 68 NY2d 675). In that case, the defendant was charged with resisting arrest and harassment. According to the testimony of the arresting officer, the defendant was observed arguing with another individual and crying. When the officer approached the defendant and attempted to detain her, she struck him in the arm. The Court held that since there was no probable cause for defendant’s arrest, defendant could not be guilty of resisting arrest (id., at 677). The Court explained further that Penal Law § 35.27 "is concerned with the defense of justification and does not amend Penal Law § 205.30 to make resistance to an unauthorized arrest an offense” (id,., at 677).

Here, too, there was no probable cause for defendant’s arrest. The police officers had no basis to believe that defendant was committing, had committed or was about to commit an offense. Defendant was merely sitting with a female companion in a car he had recently purchased when the unlawful conduct of the police that led to his being shot and spending three years in prison ensued. It is inconsistent for this Court, as it was for the Appellate Division, to sustain a charge of resisting arrest in the face of the conclusion that the police officers violated the law.

The order of the Appellate Division should be reversed.

Chief Judge Kaye and Judges Simons, Bellacosa and Ciparick concur with Judge Levine; Judge Smith dissents and votes to reverse in a separate opinion; Judge Titone taking no part.

Order affirmed.

       Contrary to the position of the dissent, defendant does not claim on this appeal that there was any constitutional flaw in the conduct of the trial itself.


author: Ciparick, J.

text:
    [630 NE2d 648, 608 NYS2d 952]
    In the Matter of Saratoga Water Services, Inc., et al., Appellants, v Saratoga County Water Authority, Respondent.
    Argued January 12, 1994;
    decided February 22, 1994

      POINTS OF COUNSEL

      Roland, Fogel, Koblenz & Carr, Albany (Usher Fogel and Emilio A. F. Petroccione of counsel), for appellants.
    I. Public Authorities Law § 1199-eee (5) is unconstitutional as it provides for the deprivation of private property without just compensation. (Loretto v Teleprompter Manhattan CATV Corp., 458 US 419; New York Tel. Co. v Town of N. Hempstead, 41 NY2d 691; United States v Toronto Nav. Co., 338 US 396; United States v Commodities Corp., 339 US 121; Matter of Huie [Fletcher — City of New York], 2 NY2d 168; Matter of Board of Water Supply, 277 NY 452; Matter of City of New York [Franklin Record Ctr.] 59 NY2d 57; Wilmot v State of New York, 32 NY2d 164; B & B Food Corp. v State of New York, 96 AD2d 893; Marks v State of New York, 152 AD2d 930.) II. Public Authorities Law § 1199-eee (5) illegally removed the determination of just compensation from the judiciary and vested it in the Legislature. (Matter of Keystone Assocs. v Moerdler, 19 NY2d 78, 633; Matter of City of New York [Brookfield Refrig. Corp.] 58 NY2d 532; Monongahela Nav. Co. v United States, 148 US 312; Matter of City of New York [Fifth Ave. Coach Lines] 18 NY2d 212; National Fuel Gas Supply Corp., v Cunningham Natural Gas Corp., 145 Misc 2d 825, 174 AD2d 991.) III. Public Authorities Law § 1199-eee (5) violates both the Federal and State Due Process Clauses as being unconstitutionally vague. (Matter of City of New York [Salvation Army] 43 NY2d 512; Wolfe v State of New York, 22 NY2d 292; People v Katz, 21 NY2d 132; Standard Chems. & Metals Corp. v Waugh Chem. Corp., 231 NY 51; Connally v General Constr. Co., 269 US 385; Trio Distrib. Corp. v City of Albany, 2 NY2d 690; Foss v City of Rochester, 65 NY2d 247; Matter of Carpinelli v City of Kingston, 175 AD2d 509; Groyned v City of Rockford, 408 US 104; People v Nelson, 69 NY2d 302.) IV. The Authority’s proposed acquisition includes property which is beyond its statutory jurisdiction or authority to condemn. (Society of N. Y. Hosp. v Johnson, 5 NY2d 102.) V. The Authority’s proposed acquisition constitutes an excessive taking and is therefore beyond its jurisdiction. (Hallock v State of New York, 32 NY2d 599; Matter of City of New York, 174 NY 26; Sixth Ave. R. R. Co. v Kerr, 72 NY 330;
      County of Onondaga v Sargent, 92 AD2d 743; Jafco Realty Corp. v State of New York, 18 AD2d 74, 14 NY2d 556; Wolfe v State of New York, 23 AD2d 136, 22 NY2d 292; Matter of Town of Coxsackie v Dernier, 105 AD2d 966; Long Is. Light. Co. v Lambert, 77 Misc 2d 511.) VI. The failure of the Authority to consider, mention or even acknowledge appellants’ written comments violated the EDPL and petitioners’ due process rights. (Wolff v McDonald, 418 US 539; Armstrong v Manzo, 380 US 545; Matter of Williams v White Plains Hous. Auth., 62 Misc 2d 613, 35 AD2d 965.) VII. The proposed acquisition does not serve any public need, use, benefit or purpose. (Long Is. R. R. Co. v Long Is. Light. Co., 103 AD2d 156, 64 NY2d 1088; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Waldo’s, Inc. v Village of Johnson City, 74 NY2d 718.)

      Tabner, Laudato and Ryan, Albany (John W. Tabner of counsel), for respondent.
    I. Petitioners-appellants have the burden of proof in their attack on the constitutionality of Public Authorities Law § 1199-eee (5). (Williamson Planning Commn. v Hamilton Bank, 473 US 172; Fifth Ave. Coach Lines v City of New York, 11 NY2d 342; Alper v Nowakowski, 58 AD2d 1012; Kittinger v Buffalo Traction Co., 160 NY 377; Lincoln Bldg. Assocs. v Barr, 1 NY2d 413, 355 US 12; Archer v Equitable Life Assur. Socy., 218 NY 18; Hirson v United Stores Corp., 263 App Div 646, 289 NY 564.) II. The actions of respondent comply with the Constitutions of the United States of America and the State of New York, and section 1199-eee (5) of the Public Authorities Law is constitutional. (Kirby Forest Indus, v United States, 467 US 1; United States v Certain Lands of Town of Highlands, 46 F Supp 386; Barnidge v United States, 101 F2d 295; Danforth v United States, 308 US 271; Loretto v Teleprompter Manhattan CATV Corp., 458 US 419; New York Tel. Co. v Town of N. Hempstead, 41 NY2d 691; Matter of Huie [Fletcher — City of New York], 2 NY2d 168; Matter of City of New York [Franklin Record Ctr.] 59 NY2d 57; B & B Food Corp. v State of New York, 96 AD2d 893; Matter of Board of Water Supply, 277 NY 452.) III. The statute clearly grants respondent-respondent the jurisdiction and authority to acquire the properties sought to be taken. (Society of N. Y. Hosp. v Johnson, 5 NY2d 102.) IV. The taking by the Authority is not excessive and beyond its jurisdiction. V. The Authority followed all procedural requirements of the EDPL and petitioners’ due process rights were protected. (Fifth Ave. Coach Lines v City of New York, 11 NY2d 342.) VI. The proposed acquisitions serve the public need, use, benefit and purpose. (Lubelle v City of Rochester, 145 AD2d 954, 74 NY2d 601; City of Buffalo Urban Renewal Agency v Moreton, 100 AD2d 20.)
   OPINION OF THE COURT

Ciparick, J.

This is a proceeding under EDPL 207 challenging two separate "determination and findings” statements by respondent condemnor Saratoga County Water Authority. The primary issues on this appeal are whether Public Authorities Law § 1199-eee (5) unconstitutionally divests the judiciary of its power to determine just compensation and whether that section is unconstitutionally vague.

I

The Legislature created respondent condemnor Saratoga County Water Authority in 1990 for the purpose of ensuring an adequate water supply for the future of Saratoga County (Public Authorities Law § 1199-aaa et seq., added by L 1990, ch 678).

In March 1992, respondent issued two notices of public hearing informing the public that it was considering acquiring through condemnation a portion of petitioners’ assets and real property. On April 2, 1992, respondent held a public hearing to determine the need for and location of respondent’s proposed acquisitions.

On June 18, 1992, respondent issued two separate "determination and findings” statements announcing that acquisition of petitioners’ assets and property was required for the maintenance and operation of a water system capable of supplying potable water to the inhabitants of the Town of Malta. Respondent further indicated that acquisition of petitioners’ real property and assets would assist in the creation of a countywide coordinated public water system. Petitioners, a domestic corporation that provides water to approximately 1,350 customers (Saratoga Water Services, Inc.), a corporation with its principal place of business in Saratoga County (Luther Forest Corp.), and two individual property owners (the Mackays), commenced this proceeding in the Appellate Division to challenge respondent’s determinations and findings. The Appellate Division confirmed the determinations and dismissed the petition. We now affirm.

II

Public utilities present unique and difficult valuation problems deriving from the absence of sales of similar property and from the fact that the taking usually encompasses not only the physical property but also a going business enterprise that cannot be reestablished elsewhere. Various methodologies have proven unsatisfactory. Fair market value, which is calculated by reference to comparable sales between willing buyers and sellers, is inapt, since "there is hardly a market, in the usual sense, for a public utility, particularly the regulated utility” (Onondaga County Water Auth. v New York Water Serv. Corp., 285 App Div 655, 662). The replacement or reproduction cost less depreciation method, which has been described as "the cost which will necessarily be incurred by a reasonably prudent and careful [person] using ordinarily careful business methods in reproducing a plant of equal efficiency” (4A Nichols, Eminent Domain § 15.41 [3] [rev 3d ed]), fails to account for intangible valuation factors such as the present and prospective earning power of the utility. The income capitalization method, which seeks to set the value of property based on its expected net yield to the owner, uses as evidence of value "provable past earnings on a periodic basis, growth rate in use fees, projected cost increases, new users projected and governmental restrictions or regulations capping expansion of earnings” (see, 5 Nichols, Eminent Domain § 19.07 [1] [rev 3d ed]). Although income capitalization has become the preferred approach in valuating income-producing property (id.), it too remains subject to criticism, principally because of the speculative nature of the valuation criteria used (see, Onondaga County Water Auth., 285 App Div 662, supra), and because earned income imperfectly reflects the actual value of a utility whose rates are subject to regulation. Thus, income capitalization constitutes only evidence of value in the absence of comparable sales by which courts might measure fair market value.

Ill

Petitioners contend that Public Authorities Law § 1199-eee (5) impermissibly mandates exclusive use of the income capitalization method in determining compensation in condemnation situations and that such a legislative command effectively usurps the power to determine just compensation designated to the judiciary by the State Constitution (art I, § 7). We are not so persuaded. In view of petitioners’ facial challenge, we note that "legislation carries a presumption of constitutionality” and that petitioners "bear the burden of demonstrating [unconstitutionality] beyond a reasonable doubt” (Alliance of Am. Insurers v Chu, 77 NY2d 573, 585). Petitioners fail to satisfy their burden here.

The just compensation which the State Constitution (NY Const, art I, §7 [a]) requires to be paid to the owner of property taken under the power of eminent domain cannot be reduced to inflexible formulas or inexorable rules (see, Matter of City of New York [Fifth Ave. Coach Lines], 18 NY2d 212, 218 [" 'It does not rest with the public, taking the property through * * * the Legislature, its representative, to say what compensation shall be paid, or even what shall be the rule of compensation’ ”, quoting Monongahela Nav. Co. v United States, 148 US 312, 327]; see also, Matter of Rochester Urban Renewal Agency [Patchen Post], 45 NY2d 1, 8).

The Court below correctly concluded that the language of Public Authorities Law § 1199-eee (5) implies only a preference for and does not dictate the method of valuation to be employed. This conclusion is evident from the last sentence of section 1199-eee (5): "If any court shall utilize any method of compensation other than the income capitalization method, * * * then the authority may withdraw the condemnation proceeding.”

Petitioners claim that the condemnor’s right to withdraw the proceeding in the event income capitalization is not used works to give the condemnor, and not Supreme Court, the last word regarding what shall be the method of compensation. Petitioners mischaracterize the intended and operative effect of Public Authorities Law § 1199-eee (5). Apparent from the legislative history of General City Law § 20 (2), the model for the statute under review, is the conclusion that section 1199-eee (5)’s peculiar framework reflects the Legislature’s attempt to protect the property owner’s right to just compensation by allowing Supreme Court to use methods other than income capitalization while simultaneously providing the condemnor with an avenue of escape in case of an unusually high valuation (see, Legislative Mem, 1986 McKinney’s Session Laws of NY, at 2997-2998).

Supreme Court retains its appropriate power in this legislative scheme, as it determines in the first instance whether income capitalization is to be utilized. If income capitalization is employed, respondent must take title at the end of the appeals process, unless "the proposed compensation is more than the rate base of the assets taken in condemnation, as utilized by the public service commission in setting rates”. Moreover, even if respondent does withdraw the proceeding, it remains liable for damages for the period from the taking to the abandonment of condemnation, in which case the court’s determination of value would be used to fix compensation for the temporary taking. Clearly, then, valuation, as fixed by Supreme Court, must be implemented, even if for a limited purpose.

Moreover, the legislative history underlying General City Law § 20 (2), the statute from which Public Authorities Law § 1199-eee (5) derives, explains the preference for income capitalization, while also demonstrating that courts remain free to resort to other methodologies where appropriate (see, Legislative Mem, 1986 McKinney’s Session Laws of NY, at 2997-2998; Governor’s Mem, op. cit., at 3195).

Thus, we conclude that Supreme Court’s authority to determine the rule of compensation under section 1199-eee (5) remains undisturbed. We point out, also, that section 5-a of the old Condemnation Law, which was similar in effect to section 1199-eee (5), was approved as constitutional in Onondaga County Water Auth. (285 App Div 655, supra). In sum, the solution chosen by the Legislature, while unusual, is constitutionally tolerable given the unique valuation problems inherent in public utilities takings.

Furthermore, although section 1199-eee (5) is clear in this regard, it should be noted that its valuation language would not apply to the property of the nonutility petitioners in this proceeding. Section 1199-eee (5) grants respondent the authority "[t]o acquire * * * by condemnation pursuant to the [EDPL] * * * any real or personal property or any interest therein”. Section 1199-eee (5) abrogates the EDPL to the extent of providing for use of the "income capitalization method of valuation based on the actual net income as allowed by the public service commission” (emphasis added). This language abrogating the EDPL valuation provisions affects public utilities only. EDPL article 5, which sets forth the statutory procedures for determining just compensation, continues to govern valuation of property not subject to regulation by the Public Service Commission. Thus, because compensation for condemnation of the nonutility petitioners’ property is governed by the provisions of the EDPL, rather than section 1199-eee (5), the challenged statute in no way infringes on their constitutional right to receive just compensation.

IV

We also reject as unpersuasive petitioners’ contention that Public Authorities Law § 1199-eee (5) is unconstitutionally vague because it requires courts to value property as of some indeterminable future date. Ordinarily, compensation is fixed as of the instant the condemnee’s property is taken by the vesting of title in the condemnor (see, Matter of City of New York [Salvation Army], 43 NY2d 512, 518). The challenged statute, however, provides that title shall vest and compensation shall be paid after valuation of the property by Supreme Court. Petitioners argue that this renders the statute void for vagueness because Supreme Court must fix compensation as of the date title vests, yet title does not vest under the statute until the appeals process is exhausted, so that Supreme Court is placed in the impossible position of presently fixing the value of property as of some undetermined future date. We need not accept this reading of section 1199-eee (5).

Implicit in petitioners’ position is the premise that no taking occurs under the statute until title vests. However, the challenged statute abrogates this general rule to the extent of chronologically separating the "taking” or "acquisition” event from the vesting of title. Pursuant to EDPL article 4, respondent takes possession of the property at the end of the acquisition proceeding upon the filing of an acquisition map. Valuation takes place as of that date. Title vests later under section 1199-eee (5), when the appeals process is exhausted, in order that the condemnor may be able to withdraw the proceeding in the event Supreme Court determines income capitalization should not be used, and in order to comply with the settled rule that a condemnor cannot abandon an appropriation after title vests (see, 6 Nichols, Eminent Domain § 26.42 [2] [rev 3d ed]). In light of our conclusion that valuation takes place as of the time of the taking, we are satisfied that the statute is not unconstitutionally vague.

Petitioners also argue that the proposed acquisition includes property beyond respondent’s statutory authority to condemn. The Appellate Division properly rejected this contention as specious. Section 1199-eee (5) plainly provides respondent with the authority "[t]o acquire * * * by condemnation pursuant to the [EDPL] * * * any real or personal property or any interest therein, * * * as [respondent] may deem necessary, * * * to carry out the purpose of this title” (emphasis added).

We have considered petitioners’ remaining contentions and conclude that they were properly resolved by the Court below.

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

Chief Judge Kaye and Judges Simons, Bellacosa and Smith concur; Judges Titone and Levine taking no part.

Judgment affirmed, with costs.

       Public Authorities Law § 1199-eee (5) provides in part: "[I]n any proceeding brought by the authority to condemn real property * * * title shall vest in the authority and compensation shall be paid only upon (a) a decision by the supreme court that compensation for the real property condemned shall be determined solely by the income capitalization method of valuation based on the actual net income as allowed by the public service commission, and (b) such supreme court’s determination that the amount of such compensation shall be based on the income capitalization method, entry of a final judgment, the filing of the final decree and the conclusion of any appeal or the expiration of the time to file an appeal related to the condemnation proceeding. If any court shall utilize any method of compensation other than the income capitalization method, or if the proposed compensation is more than the rate base of the assets taken in condemnation, as utilized by the public service commission in setting rates and as certified by such commission, then the authority may withdraw the condemnation proceeding without prejudice or costs to any party.”


author: Levine, J.

text:
    [630 NE2d 653, 608 NYS2d 957]
    In the Matter of Natural Resources Defense Council, Inc., et al., Respondents, v New York City Department of Sanitation et al., Appellants.
    Argued January 12, 1994;
    decided February 22, 1994

      POINTS OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Janet L. Zaleon, Barry P. Schwartz and Kristin M. Helmers of counsel), for appellants.
    I. Contrary to the Court below’s holding, petitioners failed to demonstrate a right to compel compliance with Local Law No. 19, because (1) the City’s Solid Waste Management Plan established a mandate that is different from and supersedes Local Law No. 19’s recycling provisions, and (2) in any event, the City has substantially complied with Local Law No. 19. (Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12; Klostermann v Cuomo, 61 NY2d 525;
      Matter of Coombs v Edwards, 280 NY 361; Jiggetts v Grinker, 75 NY2d 411; People ex rel. Huff v Graves, 277 NY 115.) II. The City Council evinced an intent to repeal or modify Local Law No. 19’s timetables for collecting specific tonnage amounts of recyclable materials and implementing other aspects of that law, when the Council adopted budgets during the fiscal crisis that lacked adequate funding for the programs. (Matter of Consolidated Edison Co. v Department of Envtl. Conservation, 71 NY2d 186; People v Newman, 32 NY2d 379, 414 US 1163; Ball v State of New York, 41 NY2d 617.) III. Mandamus was erroneously granted, because compliance with Local Law No. 19 involves nonjusticiable decisions about the implementation of the recycling program with limited funding, and depends in part on matters not entirely within the City’s control. (Jones v Beame, 45 NY2d 402; Matter of New York State Inspection, Sec. & Law Enforcement Empls. v Cuomo, 64 NY2d 233; Matter of Smiley, 36 NY2d 433; People v Tremaine, 252 NY 27; Clark v State of New York, 142 NY 101; Matter of Korn v Gulotta, 72 NY2d 363; Saxton v Carey, 44 NY2d 545; Wein v Carey, 41 NY2d 498; Jiggetts v Grinker, 75 NY2d 411; Bowen v State Bd. of Social Welfare, 45 NY2d 402.)

      Berle, Kass & Case, New York City (Michael B. Gerrard and Judith M. Gallent of counsel), for respondents.
    I. The Court below properly rejected the City’s argument that its Solid Waste Management Plan supersedes the mandatory requirements of Local Law No. 19. (Matter of Consolidated Edison Co. v Department of Envtl. Conservation, 71 NY2d 186; TV A v Hill, 437 US 153.) II. The Court below properly rejected Sanitation’s contention that it has substantially complied with Local Law No. 19. III. The Court below properly rejected Sanitation’s claim that the City Council’s budget decisions have resulted in the implicit repeal of Local Law No. 19. (Matter of Consolidated Edison Co. v Department of Envtl. Conservation, 71 NY2d 186; Matter of Town of Shandaken v State Bd. of Equalization & Assessment, 63 NY2d 442; TVA v Hill, 437 US 153; Ball v State of New York, 41 NY2d 617.) IV. The writ of mandamus was appropriately granted. (Matter of State of New York [Abrams] v Ford Motor Co., 74 NY2d 495; Matter of Home Off. Reference Lab. v Axelrod, 127 Misc 2d 444; Jiggetts v Grinker, 75 NY2d 411; Heard v Cuomo, 80 NY2d 684; Anonymous v Anonymous, 137 AD2d 739; Kasmarski v Terranova, 115 AD2d 640; Environmental Concern v Larchwood Constr. Corp., 101 AD2d 591; Matter of Legal Aid

      Socy. v Scheinman, 53 NY2d 12; Matter of Liggett v Pichler, 142 AD2d 206; Klostermann v Cuomo, 61 NY2d 525.)
   OPINION OF THE COURT

Levine, J.

In 1989, in response to New York City’s mounting solid waste crisis and dwindling landfill space, the New York City Council enacted Local Law No. 19, the New York City Recycling Law (Administrative Code of City of NY § 16-301 et seq.). Local Law No. 19 generally requires the Department of Sanitation to establish a comprehensive recycling program for the City of New York and authorizes the promulgation of regulations to implement that program. The implementation of Local Law No. 19 coincided with a fiscal crisis in the City, resulting in reduced budget appropriations for the program for fiscal year 1991. Although the Mayor initially proposed to eliminate all recycling funds for fiscal year 1992, after protracted negotiations with the City Council, funding for the program was restored, although at a reduced level.

Petitioners below commenced this CPLR article 78 proceeding in the nature of mandamus seeking to compel respondents’ compliance with various provisions of Local Law No. 19. Specifically, petitioners alleged that respondents had not complied with Local Law No. 19 by failing to: (1) prepare and submit a preliminary or City-wide recycling plan pursuant to section 16-316; (2) establish and implement City-wide deposit or reclamation programs to provide separate collection systems or convenient drop-off locations for dry cell batteries and tires pursuant to section 16-310; (3) develop and establish a minimum of 10 recycling centers, including at least one buyback center in each borough pursuant to section 16-311; and (4) meet specifically mandated tonnage requirements for solid waste disposal pursuant to sections 16-304 and 16-305. Supreme Court granted petitioners’ application. Finding that the record clearly established that respondents had purposely failed to meet the mandatory dictates of Local Law No. 19, Supreme Court granted a judgment ordering respondents "to comply with their nondiscretionary legally mandated duties to substantially comply with the provisions of the New York City Recycling Law, Local Law 19”. The judgment further set forth various timetables for compliance with the provisions at issue. On appeal by respondents, the Appellate Division affirmed (188 AD2d 415). Leave to appeal was granted by this Court. We now modify and remit to Supreme Court to reset the timetables, at least some of which have lapsed during the pendency of this litigation, and otherwise affirm.

We first address respondents’ contention that petitioners’ application involves a nonjusticiable political question beyond the judiciary’s power to review. Respondents argue that granting mandamus here necessarily embroils the judiciary in reviewing the City Council’s reduced budgetary allocations for the recycling program and the Sanitation Department’s discretionary decisions in implementing the most effective program possible with the resources available. We disagree.

The proper analysis begins with the words used by the City Council in Local Law No. 19. If the legislation in question established a standard of conduct which executive officers must meet unless or until the legislative body changes it, a dispute over compliance is generally considered justiciable because the courts can compel performance of the statutory command (see, Jiggetts v Grinker, 75 NY2d 411, 415-416). The use of the verb "shall” throughout the pertinent provisions illustrates the mandatory nature of the duties contained therein. The clear import of the words used is one of duty, not discretion (see, id., at 417). Indeed, when the City Council intended to impart discretion within the provisions of Local Law No. 19, it had no difficulty in making this intention clear. Thus, for example, section 16-305 (c) of the law provides that "[t]he commissioner may stagger the source separation and collection of the designated recyclable materials” (emphasis supplied), and section 16-311 (d) provides "[t]he commissioner may provide financial or other assistance to recycling centers in existence before and after the effective date of this chapter” (emphasis supplied). By contrast, the compulsory language of the provisions with which petitioners seek compliance unquestionably evinces an intent on the part of the City Council to impose mandatory duties upon respondents (Jiggetts v Grinker, 75 NY2d, at 417-418, supra).

Moreover, granting petitioners the relief they seek here would not involve the courts in resolving political questions or making broad policy choices on complex societal and governmental issues, involving the ordering of priorities. The City Council made the policy and political decisions and arranged its priorities in enacting Local Law No. 19. Petitioners are not seeking any change in legislative policy or reordering of priorities; "they ask only that the [recycling] program be effected in the manner that it was legislated” (Klostermann v Cuomo, 61 NY2d 525, 537).

Nor is the justiciability of this dispute affected by the fact that the implementation of these mandatory provisions entails some exercise of discretion on the part of respondents. We held in Klostermann that an action seeking compliance with a statutory directive is not rendered nonjusticiable "merely because the activity contemplated * * * may be complex and rife with the exercise of discretion” (id., at 530). Compliance with almost any statutory directive will involve some measure of discretion exercised by those implementing its terms, but this will not render nonjusticiable a claim which asks the courts to compel compliance with a statute that is otherwise mandatory on its face. Mandamus may "compel acts that officials are duty-bound to perform, regardless of whether they may exercise their discretion in doing so” (id., at 540). The judgment below conforms to this principle.

Finally on the justiciability issue, we reject respondents’ claim that petitioners’ application improperly requires the courts to review the City Council’s budget appropriations for the recycling program. This argument is merely another way of asserting that the City Council has not adequately funded the City’s recycling program to permit full compliance with Local Law No. 19. Grounding a claim of nonjusticiability on the inadequacy of funding of the statutory mandate was specifically rejected in Klostermann (61 NY2d, at 536-537, supra). As we said in Jiggetts, "[manifestly, the Legislature may or may not appropriate funds necessary to fund these obligations, but the Commissioner does not discharge this statutory duty unless [s]he complies with the mandate contained in [the statute]” (Jiggetts v Grinker, 75 NY2d 411, 421, supra). We hold, therefore, that petitioners have presented a justiciable controversy. As in Klostermann, "[petitioners] assert that the Legislature has mandated certain programs and that the executive branch has failed to deliver the services. The appropriate forum to determine the respective rights and obligations of the parties is in the judicial branch” (Klostermann v Cuomo, 61 NY2d, at 536, supra).

Alternatively, respondents contend that Local Law No. 19’s recycling provisions were implicitly repealed or modified by subsequent actions of the City Council. Respondents point first to the City Council’s enactment of Local Laws, 1992, No. 72, which authorized the submission of the City’s Solid Waste Management Plan to the New York State Department of Environmental Conservation (DEC) pursuant to the Solid Waste Management Act of 1988 (see, ECL 27-0107). Because the Solid Waste Management Plan addresses many of the facets of New York City’s recycling program contained in Local Law No. 19, respondents argue that the City Council’s approval of the submission of the Plan to DEC pursuant to Local Law No. 72 effectively superseded Local Law No. 19’s recycling provisions. Additionally, respondents urge that the City Council’s approval of budgets for fiscal years 1991 and 1992 with reduced allocations for recycling efforts impliedly repealed Local Law No. 19 or modified the timetables set forth therein for its implementation. We find neither of these contentions persuasive.

It is well settled that "[r]epeal or modification of legislation by implication is not favored in the law” (Matter of Consolidated Edison Co. v Department of Envtl. Conservation, 71 NY2d 186, 195), and that the doctrine will "be resorted to only in the clearest of cases” (Ball v State of New York, 41 NY2d 617, 622; see also, McKinney’s Cons Laws of NY, Book 1, Statutes § 391). Put another way, a repeal by implication " 'will not be discovered unless the conclusion is unavoidable, as when repugnancy between the two statutes is plain’ ” (Ball v State of New York, supra, at 622 [quoting Cimo v State of New York, 306 NY 143, 148]). Similarly, modification of a statutory provision by later enactment will not generally be implied unless they are so inconsistent that both cannot be given effect (Matter of Consolidated Edison Co. v Department of Envtl. Conservation, supra, at 195). In the instant case, this demanding common-law standard is buttressed by section 1-110 (b) of the Administrative Code, wherein the City Council has explicitly proscribed implied repeal of the Code’s provisions by providing that ”[n]o law hereafter enacted shall be construed to repeal any provision of this code by implication, but every such provision shall be deemed to be in full force and effect until specifically repealed or amended”.

We do not find the requisite clear manifestation of legislative intent to repeal or modify Local Law No. 19 in the City Council’s participation in the formulation of the Solid Waste Management Plan or its enactment of Local Law No. 72. By its terms, Local Law No. 72, the only legislation involving the Plan, merely authorizes the submission of the Plan to DEC, and in no way purports to affect the provisions of Local Law No. 19. Moreover, respondents’ contention that the Solid Waste Management Plan was intended to modify the dictates of Local Law No. 19 is belied by the express language of the Plan, which in several instances explicitly contemplates direct, formal amendments to Local Law No. 19 to reflect the contents of the Plan. There could hardly be a more clear indication that the Plan, and its submission to DEC pursuant to Local Law No. 72, was not intended by the City Council, without further amendments, to affect the provisions of Local Law No. 19.

Nor do we perceive any clear intent on the part of the City Council to modify the dictates of Local Law No. 19 by its reduced budget appropriations for recycling for fiscal years 1991 and 1992. An even stronger case for implied repeal was presented in Ball v State of New York (41 NY2d 617, supra), where the Legislature enacted a budget which eliminated any specific appropriation for the Bingo Control Commission or the salary of its chairperson. Nonetheless, we held in Ball v State of New York that the severe burden of establishing implied repeal had not been met, pointing to contraindications in the Legislature’s rejection of a Governor’s bill expressly abolishing the Bingo Control Commission, and the general appropriation of funds in the budget for personnel expenses in connection with the regulation of wagering, out of which presumably salaries of that Commission’s staff could be paid (id., at 621-622).

Similarly here, the City Council’s ultimate restoral of appropriations for the recycling program in response to the Mayor’s initial proposal to temporarily suspend the program dispels any implication of a legislative intent to repeal or substantively modify Local Law No. 19. Certainly, in the face of the statutory proscription against implied repeals in section 1-110 of the Administrative Code, this is not one of those "clearest of cases” (id., at 622) where we can presume that the City Council intended to alter or rescind its prior enactment.

Respondents’ final argument is that mandamus relief should have been denied here because compliance with the tonnage goals of Local Law No. 19 is dependent upon the cooperation of the general public, and thus beyond respondents’ control. We note that this objection would not reach many of the mandates of compliance with Local Law No. 19 included within Supreme Court’s judgment. In any event, the necessity of enlisting the cooperation of others in a public official’s performance of a statutory obligation does not automatically bar mandamus relief. Thus, in Klostermann v Cuomo (61 NY2d 525, supra), we held that mandamus could lie to compel State mental hygiene officials to fulfill their statutory duties toward State psychiatric center patients released to local communities, which expressly required enlisting the cooperation and participation of local organizations in providing for patients’ residential and service needs in the community. At most, a public official’s need to enlist the cooperation of others in the performance of statutory duties is a factor to be considered in a court’s exercise of discretion in granting mandamus, but respondents have failed to establish, as a matter of law, any abuse of discretion by Supreme Court in granting mandamus here.

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

Chief Judge Kaye and Judges Simons, Bellacosa, Smith and Ciparick concur; Judge Titone taking no part.

Order modified, with costs to petitioners, by remitting the matter to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      . Administrative Code § 16-304 (added by Local Laws, 1989, No. 19) provides: "The commissioner shall * * * establish and implement programs to ensure that the amount of department-disposed of solid waste is reduced or recycled by at least * *
      Administrative Code § 16-305 (a) provides: "The commissioner shall * * * adopt and implement regulations * * * to ensure that the department and its contractors recycle at least * *
      Administrative Code § 16-310 provides: "[T]he commissioner shall establish and implement citywide deposit or reclamation programs, that provide separate collection systems or convenient drop-off locations for dry cell batteries and tires to ensure that they are not incinerated or disposed of in an unlined landfill”.
      Administrative Code § 16-311 provides: "The commissioner shall * * * develop and establish or support the development and establishment of not less than ten recycling centers * * * The commissioner shall establish or ensure that there exists at least one buy-back center in each borough.”
      Administrative Code § 16-316 (a) provides: "The commissioner shall * * * prepare and submit * * * a preliminary citywide recycling plan. The commissioner shall * * * prepare and submit * * * a citywide recycling plan and each year thereafter the commissioner shall submit * * * an updated plan. The preliminary plan, the plan and each updated plan shall include, but need not be limited to [23 specified items]” (emphasis supplied throughout).

      . Local Law No. 72 was passed while respondents’ appeal in the instant case was pending before the Appellate Division.

      . Local Law No. 72 provides in its entirety:
      "Section 1. Pursuant to subdivision (c) of section 16-140 of the administrative code of the city of New York, the council hereby grants the authority for the submission, pursuant to article twenty-seven of the New York State environmental conservation law, of the proposed final solid waste management plan for the city of New York, and any amendments thereto, presented to the council pursuant to such subdivision (c) of section 16-140.
      "§ 2. This local law shall take effect immediately.”

      . Indeed, the City Council has already passed one such amendment contemplated by the Solid Waste Management Plan, Local Laws, 1992, No. 87, to require source separation of recyclables by commercial generators (Administrative Code § 16-306).


author: Bellacosa, J.

text:
    [630 NE2d 658, 608 NYS2d 962]
    In the Matter of Luis M., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued January 12, 1994;
    decided February 22, 1994

      POINTS OF COUNSEL

      Raymond E. Rogers, New York City, and Lenore Gittis for appellant.
    The prosecution in a juvenile delinquency action must, pursuant to Family Court Act § 330.2 (2) and CPL 60.45 and 710.20 (3), provide timely pretrial notice of its intent to introduce statements made by the juvenile to any person, not just statements made to public servants. (People v O’Doherty, 70 NY2d 479; Matter of Eddie M., 110 AD2d 635; Matter of Javier M., 127 Misc 2d 612; Matter of Eric E, 123 Misc 2d 1079; People v Briggs, 38 NY2d 319; People v Greer, 42 NY2d 170; People v Brown, 140 AD2d 266, 72 NY2d 955; People v Rodriguez, 79 NY2d 445; People v Weaver, 49 NY2d 1012; People v Dodt, 61 NY2d 408.)

      Paul A. Crotty, Corporation Counsel of New York City (Kristin M. Helmers and Stephen J. McGrath of counsel), for respondent.
    The Family Court properly refused to preclude evidence of appellant’s statement to his mother’s caseworker. (People v Mirenda, 23 NY2d 439; People v Rivera, 173 AD2d 360; People v Paredes, 166 AD2d 677, 76 NY2d 1023; People v Green, 160 AD2d 725; People v Haile M„ 160 AD2d 1027; People v Williams, 180 AD2d 423; People v Di Carlo, 160 AD2d 1179; People v Harris, 25 NY2d 175, 401 US 222; Matter of Eric E., 123 Misc 2d 1079; Matter of Javier M., 127 Misc 2d 612.)
   OPINION OF THE COURT

Bellacosa, J.

This Court granted leave to decide whether Family Court Act § 330.2 (2) requires a presentment agency in a juvenile delinquency proceeding to give notice to a respondent of its intent to introduce statements of a nonpublic servant witness at a fact-finding proceeding. The Appellate Division affirmed an order of Family Court adjudging that the appellant-respondent committed acts when he was 15 years of age which, if committed by an adult, would constitute the crimes of criminal possession of a weapon in the fourth degree and unlawful possession of a weapon. We affirm the order of the Appellate Division and hold that the notice provision of Family Court Act § 330.2 (2) does not extend to testimony to be received from witnesses like the non-law-enforcement social worker in this case.

L

Appellant’s mother found a gun among some dirty clothes in a closet while cleaning her son’s room. Because she was distraught, she and her daughter decided to call the mother’s social worker for some guidance and assistance. The student social worker went to the apartment and encountered appellant, also visibly upset, speaking to a family friend in the kitchen. She asked the youngster where he had obtained the gun. He responded that he purchased it from a drug addict for $10. She was shown the gun wrapped in a towel on a bed, and then sought advice on how to proceed from the Department of Social Services in Albany and certified social workers at New York City’s Child Welfare Administration. Acting on their advice, she summoned the police.

The responding officer was shown the gun and arrested appellant. The gun was an operational, nine millimeter Calico semiautomatic pistol. At a fact-finding hearing, the mother, the police officer and the social worker testified about their observations regarding the gun. Appellant’s counsel objected to the social worker’s testimony on the ground that he had not been given advance notice of its intended use pursuant to Family Court Act § 330.2 (2). The Family Court found that the "statements were not made to a law enforcement official” and, thus, notice is not required.

The Appellate Division affirmed without expressly addressing the notice issue. However, the dispositive issue persists in our Court whether the prosecution in a juvenile delinquency proceeding must give pre-fact-finding notice, pursuant to Family Court Act § 330.2 (2), for the introduction of statements made by a juvenile to persons who are not public servants. That section incorporates by double reference CPL 710.20 (3), CPL 710.30 and CPL 60.45 as a threshold prerequisite for such evidence to be used.

IL

It is well in this case to set out the salient words of the interconnected, operative statutes. Family Court Act § 330.2 (2) states:

"Whenever the presentment agency intends to offer at a fact-finding hearing evidence described in section 710.20 or subdivision one of section 710.30 of the criminal procedure law, such agency must serve upon respondent notice of such intention. Such notice must be served within fifteen days after the conclusion of the initial appearance or before the fact-finding hearing, whichever occurs first, unless the court, for good cause shown, permits later service and accords the respondent a reasonable opportunity to make a suppression motion thereafter. If the respondent is detained, the court shall direct that such notice be served on an expedited basis.”

CPL 710.20 states:

"Upon motion of a defendant who (a) is aggrieved by unlawful or improper acquisition of evidence and has reasonable cause to believe that such may be offered against him in a criminal action, or (b) claims that improper identification testimony may be offered against him * * * a court may * * * order that such evidence be suppressed or excluded upon the ground that it * * *
"3. Consists of a record or potential testimony reciting or describing a statement of such defendant involuntarily made, within the meaning of section 60.45.”

CPL 60.45 provides:

"2. A confession, admission or other statement is 'involuntarily made’ by a defendant when it is obtained from him:
"(a) By any person by the use or threatened use of physical force upon the defendant or another person, or by means of any other improper conduct or undue pressure which impaired the defendant’s physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement” (emphasis added).

The structure of CPL 710.20 (3), with its own cross reference to CPL 60.45, uses the unqualified phrase "any person”, and that is the linchpin of appellant’s argument seeking dismissal of the juvenile delinquency adjudication. The progression of appellant’s argument is that notice is required in all instances as to all witnesses under Family Court Act § 330.2 (2) because CPL 710.20 incorporates by reference the unqualified "any person” language of CPL 60.45 (2) (a). We are not persuaded by appellant’s proffered statutory interpretation. Essentially, it founders on a lack of supportive legislative intent in the face of countervailing precedential analysis and authority with respect to a less than facially plain statutory montage.

The origins for the solution to this tricky statutory construction may be traced to People v Mirenda (23 NY2d 439). There, we addressed a parallel application of statutory interpretation of section 813-f of the Code of Criminal Procedure, the predecessor to the current CPL 710.30 after which Family Court Act § 330.2 was molded. Mirenda still provides solid guidance, which is reliable and indicative of the correct interpretation of Family Court Act § 330.2 (2) at issue here. According to D. Besharov, a key Family Court Act commentator, there is a "recurrent importance to practice under Article 3 of judicial interpretations of the CPL” (see, Besharov, 1984 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 330.2, 1994 Pocket Part, at 123). The following expression from Mirenda, therefore, helps to chart the path to understanding the scope of "any person” in Family Court Act § 330.2 (2):

"We do not, however, interpret the legislative intent as requiring the District Attorney to notify defendants of admissions made to private parties who were not police agents. In People v. Huntley (15 N Y 2d 72) we adopted the Massachusetts rule for determining voluntariness of admissions and confessions made to police officers. Our decision was in direct response to the Supreme Court’s decision in Jackson v. Denno (378 U. S. 368) finding the procedure employed in New York to test voluntariness constitutionally infirm, thus overruling their prior decision[s] * * *.
"When an admission is made to a private person the procedure established by section 813-f is inapplicable * * * 'the obvious purpose of the statute is to give a defendant adequate time to prepare his case for questioning the voluntariness of a confession or admission.’ * * * The present procedure is ill suited to be a pretrial discovery device. We do not believe the Legislature intended it to be such. Therefore, if no question arises in respect to the voluntariness of an admission made to a private person there is no need to require a hearing” (People v Mirenda, 23 NY2d 439, 448-449, supra; see also, People v Rivera, 173 AD2d 360, lv denied 78 NY2d 1129).

We are satisfied that the Mirenda rationale helps to support our conclusion that a "public servant” limitation continues to restrict the notice requirement under Family Court Act § 330.2 (2).

Further indicative of the contemporaneous and operative legislative intent, we advert to the persuasive authority in this instance of another of the original commentators on the Family Court Act and a legislative drafting aide in the particular statute at issue. Professor Sobie states that subdivision (2) of section 330.2 merely "restates CPL § 710.30 concerning notice to a defendant” (Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 330.2, at 411 [emphasis added]). CPL 710.30 (1) explicitly requires notice to adult defendants when evidence to be proffered consists of statements made only to a "public servant.” This limitation continues today. Thus, the confusing and ambiguous cross references and history that intertwine these notice provisions militate against a judicial harmonization exercise. The responsibility in this instance for this job belongs to the Legislature.

The legislative sequence surrounding the enactment of Family Court Act § 330.2 (2) also counterindicates the undifferentiated and expansive construction urged by appellant. The notice provision in section 330.2 (2) of the Family Court Act was signed into law on December 20, 1982 and became effective the following July 1983. When first drafted in January of 1981, this Family Court Act notice requirement cross-referenced a different CPL 710.20 from the one that came into being by the time Family Court Act § 330.2 (2) became law in December of 1982.

The Bill Jacket for section 330.2 (2) (L 1982, ch 920) dates the original bill that passed the Senate to January 1981. In January of 1981 and until September of 1982, CPL 710.20 stated in subdivision (3) that evidence is improper if it "[consists of a record or potential testimony reciting or describing a statement of such defendant involuntarily made, within the meaning of section 60.45, to a public servant engaged in law enforcement activity or to a person then acting under his direction or in cooperation with him” (CPL 710.20 [former (3)] [emphasis added]; see, Historical Note, McKinney’s Cons Laws of NY, Book 11 A, CPL 710.20, at 8 [1984]; compare, CPL 710.30 [1]).

In September of 1982, the Legislature, by Laws of 1982 (ch 214) deleted the public servant limitation in CPL 710.20. Thus, when Family Court Act § 330.2 (2) was originally drafted in January of 1981, the reference to section 710.20 included language limiting its application to statements made to public servants. This lack of symmetry and conformity serves to support the view that the interlocking statutes are not plain on their faces and the disharmony appears to be due, at least in part, to legislative oversight.

Because the practical and theoretical consequences are so sweeping and significant with respect to the operation of the Family Court Act § 330.2 (2) notice requirements, we conclude it is not warranted or prudent for the judiciary to interpret in such a way as to amend the requirement to eliminate an evidently intended limitation. The original public servant limitation should remain operative until the Legislature manifests its intent to remove it from Family Court Act § 330.2 (2).

The Family Court Act also contains a distinct discovery provision in section 331.2, which explicitly does not require disclosure of statements made to persons other than public officials and their agents (see, Family Ct Act § 331.2 [1] [a]). The limited requirements of section 331.2 (1) (a) lend additional support to the continued application of the Mirenda rationale by limiting a notice requirement to public servants.

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

Chief Judge Kaye and Judges Simons, Smith, Levine and Cipabick concur; Judge Titone taking no part.

Order affirmed, without costs.