author: Wachtler, J.

text:
    Teddy’s Drive In, Inc., Respondent, v Alexander E. Cohen, Appellant, et al., Defendants.
    Argued March 22, 1979;
    decided May 3, 1979

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Robert S. Hammer and » Samuel A. Hirshowitz of counsel), for appellant.
    I. Appellant is immune from suit for his official acts which gave rise to this case; which, in reality is against the State. Respondent should pursue its presently pending action in the Court of Claims. (Psaty v Duryea, 306 NY 413; Glassman v Glassman, 309 NY 436; Matter of Dormitory Auth. of State of N. Y. [Span Elec. Corp.], 18 NY2d 114; Belscher v New York State Teachers’ Retirement System, 45 AD2d 206; Matter of Matysiak, 22 AD2d 976; Gross v New York State Liq. Auth., 60 Misc 2d 413, 33 AD2d 894; Matter of Ross v Barbaro, 61 Misc 2d 147; Rottkamp v Young, 21 AD2d 373; New York State Thruway Auth. v Hurd, 29 AD2d 157; Freedom Discount Corp. v McMahon, 38 AD2d 947.) II. Issues of fact remain as to the adequacy of notice of respondent’s interest in the property. III. Defendant was legally entitled to sell any of the taxpayer’s right, title and interest regardless of plaintiff’s claim. (Universal C. I. T. Credit Corp. v Schlossman’s, Inc., 37 Misc 2d 1097; Matter of Intermediate Credit Corp. v Overseas Nat. Airways, 41 Misc 2d 522; Matter of General Motors Acceptance Corp. v Maloney, 46 Misc 2d 251.)

      Wilbur G. Silverman for respondent.
    I. Appellant has no immunity from liability in a suit based upon his tortious conduct, as his employee, the State of New York, has waived its immunity under the provisions of the Court of Claims Act. (Rhynders v Greene, 255 App Div 401; Columbia Mach. Works v Long Is. R. R. Co., 267 App Div 582; Rufo v Orlando, 286 App Div 88, 309 NY 345; Berg v Hoffman, 275 NY 132; Jones v Archibald, 45 AD2d 532; Spraights v Hawley, 39 NY 441; Suzuki v Small, 214 App Div 541, 243 NY 590; United States v Savage & Son, 343 F Supp 123, 475 F2d 305.) II. The powers of a Sheriff do not include the power wrongfully to seize property of those other than the person against whom a judgment or warrant was outstanding, so that the seizure of plaintiff’s property was not authorized to satisfy the tax obligation of another. (Freedom Discount Corp. v McMahon, 38 AD2d 947; Eckstein v Massachusetts Bonding & Ins. Co., 281 NY 435; People ex rel. Kellogg v Schuyler, 4 NY 173.) III. There were no issues of fact raised by appellant sufficient to deny summary judgment to respondent herein. (Kirschbaum v Eschmann, 205 NY 127; Royal Bank of Canada v Williams, 220 App Div 603; Rochkind v Perlman, 123 App Div 808; Dahlstrom v Gemunder, 198 NY 449.) IV. Respondent had no right to sell plaintiff’s property on the pretext of selling the rights of another in said property.
   OPINION OF THE COURT

Wachtler, J.

To recover taxes, interest and penalties owed, the New York State Tax Commission issued warrants on February 7, 1975 authorizing the seizure of property owned by Eloise Restaurant Associates. Defendant, Alexander Cohen, a tax compliance agent, executed these warrants on certain personal property believed to be owned by Eloise Restaurant. A notice of sale was posted on the restaurant premises on March 24, 1975.

Plaintiff, Teddy’s Drive In had perfected a security interest in the subject property on June 9, 1972 pursuant to which it had acquired title. Plaintiff contends that it informed Cohen of this fact before the day of the auction, an assertion denied by Cohen. It is conceded, however, that plaintiff’s president, Theodore Coffman, immediately before the auction began, stood on a table and announced that all items on the premises were subject to a $70,000 chattel mortgage which he held. Without making any inquiry Cohen conducted the sale.

The issue is whether Cohen may be held personally liable in conversion for having conducted the sale. Cohen argues that as a tax compliance agent, acting in the capacity of a Sheriff (Tax Law, §§ 380, 1141, subd [b]) he is immune from personal liability. Teddy’s Drive In contends that Cohen, in wholly ignoring Coffman’s announcement, so abused his official powers that he divested himself of any immunity which otherwise might have shielded him.

The threat of legal action against public officials for their official acts carries the risk of deterred performance of important civic functions. It is for this reason that they are clothed with a limited immunity, while discharging their public responsibility (see Rottkamp v Young, 21 AD2d 373, affd 15 NY2d 831). Accordingly, a Sheriff authorized to seize property under a writ of attachment or execution is protected by this limited immunity. As long as the writ is facially valid, the officer will not be held liable for executing it even if it was erroneously issued (cf. Vittorio v St. Regis Paper Co., 239 NY 148). But the immunity is not absolute and will not shield a Sheriff who, because of his misfeasance, has stepped outside the scope of his authority (Prosser, Torts [4th ed], § 25, pp 127-129; cf. Sirles v Cordary, 49 AD2d 330, affd 40 NY2d 950).

In the present case, Cohen, acting in the capacity of a Sheriff had property auctioned with notice that the true owner of the property was someone other than the delinquent taxpayer. Having received this notice, he should have delayed the sale to inquire into the validity of plaintiff’s claim of ownership. Instead, completely ignoring the claim, he chose to proceed with the sale. These actions amount to misfeasance, and since plaintiff’s claim has proven valid, defendant is personally liable to it in conversion (People ex rel. Kellogg v Schuyler, 4 NY 173).

Accordingly the judgment appealed from should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Fuchsberg concur with Judge Wachtler.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Larry Smith, Also Known as Edward Charles Smith, Appellant.
    Argued March 29, 1979;
    decided May 8, 1979

      POINTS OF COUNSEL

      Abraham Werfel for appellant.
    I. The People did not establish by competent evidence that appellant was not suffering from mental disease or defect to excuse criminal responsibility. (People v Kelly, 302 NY 512; People v Esposito, 287 NY 389; People v Sullivan, 39 NY2d 903; Lyles v United States, 254 F2d 725; People v Davis, 53 AD2d 870; People v Mendes, 3 NY2d 120; Matter of William T., 53 AD2d 536; Taylor v United States, 222 F2d 398; People v Adams, 26 NY2d 129.) II. The court committed reversible error in refusing to charge robbery in the second degree. (People v Briggs, 52 AD2d 1053; People v Tai, 39 NY2d 894; People v Shuman, 37 NY2d 302; People v Asan, 22 NY2d 526; People v Jenkins, 41 NY2d 307; People v Henderson, 41 NY2d 233; Hanna v Stedman, 230 NY 326; People v Walker, 57 AD2d 780; People v Felder, 39 AD2d 373; People v Garcia, 46 AD2d 611.) III. The conviction for manufacturing, etc., a defaced weapon cannot be sustained by mere possession. (People v Lemmons, 40 NY2d 505, revd sub nom. Allen v County Ct., Ulster County, 568 F2d 998; Leary v United States, 395 US 6; Mullaney v Wilbur, 421 US 684; People v Leyva, 38 NY2d 160; People v Couvertier, 52 AD2d 772; People v Jones, 57, AD2d 595.) IV. The conviction for unlawful imprisonment cannot be sustained. (People v Lombardi, 20 NY2d 266; People v Mabery, 51 AD2d 557; People v Cassidy, 40 NY2d 763.)

      John J. Santucci, District Attorney (John T. Wynne, Jr., of counsel), for respondent.
    I. Appellant was proven guilty beyond a reasonable doubt of the crime of robbery in the first degree. (People v Felder, 39 AD2d 373, 32 NY2d 747; People v Garcia, 46 AD2d 611; People v McCoy, 50 AD2d 747; People v Elfe, 37 AD2d 208; People v Atlas, 183 App Div 595, 230 NY 629.) II. The evidence at trial was sufficient to prove beyond a reasonable doubt that appellant was criminally responsible for his conduct; the continuance granted during trial for another psychiatric examination was proper; Dr. Schwartz’ testimony was properly admitted. (People v Woods, 12 NY2d 69; People v Horton, 308 NY 1; People v Buthy, 38 AD2d 10; People v Adams, 26 NY2d 129; People v Ferrone, 204 NY 551; People v Reaves, 30 AD2d 828, 26 NY2d 921; Matter of Lee v County Ct. of Erie County, 27 NY2d 432; People v Tutt, 38 NY2d 1011; People v Cerami, 33 NY2d 243.) III. There was no reasonable view of the evidence in this case which would support a finding that defendant committed the crime of robbery in the second degree but did not commit the crime of robbery in the first degree. Hence the court properly denied appellant’s request that the court submit the crime of robbery in the second degree to the jury. (People v King, 13 AD2d 997; People v Mussenden, 308 NY 558; People v Feldt, 26 AD2d 743, 22 NY2d 839; People v Randolph, 40 AD2d 806.) IV. Appellant was proven guilty beyond a reasonable doubt of the crime of defacement of a weapon. (People v Robinson, 36 NY2d 224; Allen v County Ct., Ulster County, 568 F2d 998.) V. Appellant was proven guilty beyond a reasonable doubt of the crime of unlawful imprisonment in the first degree. This unlawful imprisonment charge did not merge with the robbery charge. (People v Watson, 57 AD2d 143; People v Usher, 49 AD2d 499; People v Cassidy, 40 NY2d 736.)
   OPINION OF THE COURT

Wachtler, J.

A jury convicted the defendant, Larry Smith, of robbery in the first degree (Penal Law, § 160.15, subd 2), possession of a weapon as a felony (Penal Law, § 265.05, subd 2), defacement of a weapon (Penal Law, § 265.10, subd 6), and unlawful imprisonment in the first degree (Penal Law, § 135.10). The Appellate Division unanimously modified by reversing the conviction for possession of a weapon, as an inclusory concurrent count as to the robbery, and otherwise affirmed. Leave to appeal was granted the defendant. The principal issue is whether under the facts presented the crime of unlawful imprisonment merged into the robbery offense. We hold that on this record no merger occurred.

In the early morning hours of June 16, 1974 the victim, Bivens, an off duty part-time police officer, was driving from Queens to his home in Freeport. At 1:30 a.m. while stopped at a traffic light his car was approached by Regina Jones and the defendant, Larry Smith. Smith put a revolver to Bivens’ head and demanded his money. After being handed $22, Smith, who entered the back seat of the car, directed Jones to get into the front seat. Smith then threatened to kill Bivens while Jones reached into Bivens’ pockets removing some change, keys and his driver’s license, and looked through the glove compartment. Then Smith demanded and was given the victim’s wallet. At this point, still brandishing the revolver, Smith ordered Bivens to start driving. After about one hour had passed, Smith told the victim to stop, and fled with his accomplice.

Defendant, arguing that the unlawful imprisonment charge merged into the robbery, notes that the merger doctrine applies to kidnapping in the second degree. From this point, defendant reasons that as a lesser included offense of second degree kidnapping, unlawful imprisonment must of necessity be subject to the merger principle as well. Finally, defendant asserts that "under the facts in this case a charge of kidnapping would have merged into the robbery”. Hence, according to the defendant, the unlawful imprisonment necessarily merged.

Initially it is noted that we need not decide at this time whether the merger doctrine applies in principle to unlawful imprisonment, for under the facts of this case no merger could be deemed to have occurred.

It is true, as defendant contends, that the merger doctrine was created to avoid prosecutions for kidnapping where the conduct underlying the charge constituted an inseparable part of another crime (People v Levy, 15 NY2d 159). As we recently noted, "[t]he merger doctrine is intended to preclude conviction for kidnapping based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them” (People v Cassidy, 40 NY2d 763, 767; People v Lombardi, 20 NY2d 266).

In People v Dolan (40 NY2d 763, 768) the defendant forced the victim into an automobile, and drove her around Brooklyn for an hour and a half. Several times during this period the defendant made sexual advances to her. Since "the 'true’ crime was the intermittent continuing sexual assault and the confinement in the car was only the incidental means to the accomplishment of that assault”, the merger doctrine barred prosecution for the kidnapping charge.

But the merger doctrine was not designed to merge true kidnappings into other crimes merely because the kidnappings were used to accomplish ultimate crimes of lesser or equal or greater gravity (People v Miles, 23 NY2d 527). Only if the conduct underlying the abduction was incidental to and inseparable from another crime, will the doctrine apply. Hence, in Miles where the defendants first attempted to kill the victim in New Jersey, and afterward drove him into New York to finally do away with him, the merger doctrine did not apply. Because the conduct comprising the kidnapping was separate and discrete from that underlying the attempted murder, both offenses could be prosecuted.

Under the facts of the present case, it is clear that no merger could be deemed to have occurred. The robbery was fully consummated before the victim was forced at gunpoint to embark on the hour-long drive. As in Miles, two separate crimes were therefore committed: first the robbery and then the unlawful imprisonment. Since the criminal conduct at the root of the two crimes was different, the merger doctrine, even if available, could have no application.

We have reviewed defendant’s other contentions and find them to be without merit.

Accordingly the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Fuchsberg concur with Judge Wachtler.

Order affirmed.

      . Jones pleaded guilty to robbery in the third degree (Penal Law, § 160.05).

      . By amending the definition of kidnapping in the first degree to include a durational requirement of more than 12 hours, the Legislature has removed this crime from the ambit of the merger doctrine (People v Cassidy, 40 NY2d 763, 766; Penal Law, § 135.25, subd 2).


author: Chief Judge Cooke.

text:
    In the Matter of the City of New York, Respondent, v State of New York Commission on Cable Television, Appellant.
    Argued March 29, 1979;
    decided May 8, 1979

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Peter J. Dooley and Jeremiah Jochnowitz of counsel), for appellant.
    Where the delegation of authority to an administrative agency by a legislative body is expressed in broad statutory terminology, the courts must review the exercise of that power broadly and not narrowly, and can only set aside an administrative determination where it is so lacking in reason that it is essentially arbitrary. (Matter of Barie v Lavine, 40 NY2d 565; Matter of Howard v Wyman, 28 NY2d 434; Matter of Condé Nast Pub. v State Tax Comm., 51 AD2d 17, 39 NY2d 889; Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269; Peabody & Co. v Travelers Ins. Co., 240 NY 511; Rudman v Cowles Communications, 30 NY2d 1; Matter of Hotel Assn. of N. Y. City v Weaver, 3 NY2d 206; Matter of Park East Land Corp. v Finkelstein, 299 NY 70; People ex rel. Moriarty v Creelman, 206 NY 570.)

      Allen G. Schwartz, Corporation Counsel (Nancy Stassinopoulos, L. Kevin Sheridan and Stephen P. Kramer of counsel), for respondent.
    The Commission on Cable Television has no authority under section 822 of the Executive Law to modify a contract entered into between a cable television company and a municipality. (Becker v Faber, 280 NY 146; Alcon v Kinton Realty, 2 AD2d 454; Lockwood v Embalmers Supply Co., 233 App Div 189; Levine v Long Is. R. R. Co., 38 AD2d 936, 30 NY2d 907, 409 US 1040; Rhine v New York Life Ins. Co., 248 App Div 120, 273 NY 1; Ferro v Bologna, 31 NY2d 30; Christian v Christian, 42 NY2d 63; Jemison v Blowers, 5 Barb 686; People ex rel. City of Olean v Western N. Y. & Pa. Traction Co., 214 NY 526; Saltser & Weinsier, Inc. v McGoldrick, 295 NY 499.)
   OPINION OF THE COURT

Chief Judge Cooke.

Petitioner, the City of New York, in 1970 granted two franchises providing for the operation of cable television systems. In 1975, the franchisees petitioned the city seeking four specific changes in the franchise agreements. While final city approval was pending, the franchisees submitted the four amendments in one application to respondent State Commission on Cable Television, which approved three of the proposals but disapproved the fourth. Subsequently, the city requested reconsideration of this decision, arguing that the commission is without statutory authority to disapprove in part an application to amend a franchise contract. When its efforts proved unsuccessful at the administrative level, the city commenced the present article 78 proceeding. Special Term dismissed the petition, but the Appellate Division, adopting a narrow interpretation of the commission’s enabling act, concluded that the agency only possesses power to approve or disapprove an amendment in its entirety.

On this appeal, petitioner presses its argument that the applicable legislation should be restrictively construed. Specifically, petitioner contends that since certain provisions of the commission’s enabling act seem to contemplate approval or disapproval of an entire amendment application (see Executive Law, § 822, subds 3, 4, 5), the commission is prohibited from singling out for disapproval one of a number of amendments grouped together in the same application. This reasoning, upon examination, is neither compelling nor convincing.

The Commission on Cable Television, created by the Legislature in 1972, is invested with broad authority to oversee the burgeoning cable television industry. Among its many powers, the agency is expressly authorized to "promulgate, issue, amend and rescind such orders, rules and regulations as it may find necessary or appropriate” to carry out the purposes of the cable television statute (Executive Law, § 816, subd 1). In fact, no cable television franchise is effective unless it is confirmed by the commission, and "[n]o transfer, renewal or amendment of any franchise” may be accomplished without commission approval (Executive Law, §§ 821, 822). Approval of an amendment application may be made "contingent upon compliance with standards, terms or conditions set by the commission” (Executive Law, § 822, subd 4). In addition to this enumerated authority, the agency "shall have and may exercise all other powers necessary or appropriate to carry out the purposes” of the enabling act (Executive Law, § 816, subd 5).

An administrative agency, as a creature of the Legislature, is clothed with those powers expressly conferred by its authorizing statute, as well as those required by necessary implication (see, e.g., Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471, 480; Matter of Bates v Toia, 45 NY2d 460, 464). Where an agency has been endowed with broad power to regulate in the public interest, we have not hesitated to uphold reasonable acts on its part designed to further the regulatory scheme (see, e.g., Matter of Barie v Lavine, 40 NY2d 565; Matter of Sullivan County Racing Assn. v Glasser, 30 NY2d 269, 276). This is not to say, of course, that an administrative tribunal may operate outside its lawfully designated sphere (see, e.g., Matter of Harbolic v Berger, 43 NY2d 102, 109). But the propriety of its action often depends upon the nature of the subject matter and the breadth of legislatively conferred authority (cf. Matter of Broidrick v Lindsay, 39 NY2d 641, 646).

Here, far-reaching control has been delegated to a commission charged with implementing a pervasive regulatory program. We cannot say that the commission has been denied power to disapprove a proposed franchise amendment merely because the proposal is combined with other amendments in a single application. Indeed, such a conclusion would do violence to the legislative mandate that "[n]o * * * amendment of any franchise * * * shall be effective without the prior approval of the commission” (Executive Law, § 822, subd 1). In view of this unequivocal declaration of legislative intent, petitioner’s contentions simply cannot withstand analysis. In any event, the commission could have approved the present application on condition that the offending amendment be deleted.

In sum, respondent commission has been granted extensive power to supervise the franchising of cable television systems. We decline at this juncture to inhibit the smooth operation of this regulatory function by unduly emphasizing a particular portion of the enabling act, of somewhat doubtful implication, at the expense of the whole, concerning which the legislative intent is manifest.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Special Term, Albany County, reinstated.

Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg, concur with Chief Judge Cooke.

Order reversed, etc.


text:
    In the Matter of Consolidated Edison Company of New York, Inc., Appellant, v Public Service Commission of the State of New York, Respondent. Consolidated Edison Company of New York, Inc., Appellant, v Public Service Commission of the State of New York, Respondent. In the Matter of Central Hudson Gas & Electric Corporation, Appellant, v Public Service Commission of the State of New York, Respondent.
    Argued March 22, 1979;
    decided May 1, 1979

      POINTS OF COUNSEL

      Joseph D. Block and Peter Garam for appellant in the first and second above-entitled proceedings.
    I. The court below erred in holding that the commission’s ban on the use of bill inserts by utility corporations for the expression of their views on "controversial matters of public policy” is a valid restriction on the constitutionally protected rights of such corporations to freedom of speech and freedom of the press. (Schneider v State, 308 US 147; Mills v Alabama, 384 US 214; New York Times Co. v Sullivan, 376 US 254; Roth v United States, 354 US 476; Terminiello v Chicago, 337 US 1; Kingsley Pictures Corp. v Regents, 360 US 684; East Meadow Community Concerts Assn. v Board of Educ., 19 NY2d 605; N. A. A. C. P. v Button, 371 US 415; Schwartz v Romnes, 495 F2d 844; Lovell v Griffin, 303 US 444.) II. The commission does not have statutory authority to regulate the content of utility bill inserts. (People v Carcel, 3 NY2d 327; City of New York v Maltbie, 274 NY 90; People ex rel. Municipal Gas Co. of City of Albany v Public Serv. Comm., 224 NY 156; People ex rel. New York Rys. Co. v Public Serv. Comm. of State of N. Y., 223 NY 373; Matter of National Merchandising Corp. v Public Serv. Comm. of State of N. Y., 5 NY2d 485; Matter of City of New York v Public Serv. Comm. of State of N. Y., 53 AD2d 164, 42 NY2d 916; Moore v Board of Regents of Univ. of State of N. Y., 44 NY2d 593; Matter of City Ice & Fuel Co. [Public Serv. Comm. of State of N. Y.], 260 App Div 537; Matter of New York Tel. Co. v Public Serv. Comm. of State of N. Y., 56 AD2d 415.)

      Howard J. Read and Peter H. Schiff for respondent in the first and second above-entitled proceedings.
    I. The court below correctly determined that Consolidated Edison has no constitutional right to require its ratepayers to subsidize the dissemination of management’s views on political issues. (First Nat. Bank of Boston v Bellotti, 435 US 765; Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748; Carey v Population Servs. Int., 431 US 678; Bates v State Bar of Ariz., 433 US 350; Linmark Assoc. v Willingboro, 431 US 85; Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483; Buckley v Valeo, 424 US 1; Abood v Detroit Bd. of Educ., 431 US 209; Railway Em

      ployes’ Dept. v Hanson, 351 US 225; Elrod v Burns, 427 US 347.) II. The court below correctly determined that the commission has statutory authority to ban political bill inserts. (Matter of National Merchandising Corp. v Public Serv. Comm. of State of N. Y., 5 NY2d 485; Matter of City of New York v Public Serv. Comm. of State of N. Y., 53 AD2d 164, 42 NY2d 916; Moore v Board of Regents of Univ. of State of N. Y., 44 NY2d 593.)

      Telford Taylor, Walter A. Bossert, Jr., and Davison W. Grant for appellant in the third above-entitled proceeding.
    I. The court below erred in holding that the Public Service Law authorizes the commission to prohibit promotional advertising by electric utility corporations, or their use of bill inserts to communicate their views on "controversial matters of public policy”. (Matter of City of New York v Public Serv. Comm. of State of N. Y., 53 AD2d 164, 42 NY2d 916; People ex rel. New York Rys. Co. v Public Serv. Comm. of State of N. Y., 223 NY 373; Matter of National Merchandising Corp. v Public Serv. Comm. of State of N. Y., 5 NY2d 485; Matter of Village of Boonville v Maltbie, 272 NY 40; Matter of Quinby v Public Serv. Comm. of State of N. Y., 223 NY 244; Matter of New York Tel. Co. v Public Serv. Comm. of State of N. Y., 56 AD2d 415; Panama Refining Co. v Ryan, 293 US 388; Schechter Corp. v United States, 295 US 495; Matter of New York Edison Co. v Maltbie, 244 App Div 436; Youngstown Co. v Sawyer, 343 US 579.) II. The court below erred in holding the commission’s ban on promotional advertising valid under section 8 of article I of the State Constitution and the First, Fifth and Fourteenth Amendments to the Constitution of the United States. (Valentine v Chrestensen, 316 US 52; Williamson v Lee Opt. Co., 348 US 483; Buckley v Valeo, 424 US 1; Board of Educ. v Barnette, 319 US 624; Kleindienst v Mandel, 408 US 753; Lamont v Postmaster Gen., 381 US 301; West Ohio Gas Co. v Commission, 294 US 63; Eastern R. R. Conference v Noerr Motors, 365 US 127; People ex rel. Cayuga Power Corp. v Public Serv. Comm., 2d Dist., 226 NY 527; Cox v New Hampshire, 312 US 569; Cox v Louisiana, 379 US 536.) III. The court below erred in holding the commission’s ban on bill inserts dealing with "controversial matters of public policy” valid under article I of the State Constitution and the First, Fifth and Fourteenth Amendments of the Constitution of the United States. (Erznoznik v City of Jacksonville, 422 US 205.)

      Howard J. Read and Peter H Schiff for respondent in the third above-entitled proceeding.
    I. Both courts below properly determined that the commission’s ban on promotional advertising fulfills important State objectives. (Matter of New York State Council of Retail Merchants v Public Serv. Comm. of State of N. Y., 45 NY2d 661.) II. Both courts below properly concluded that there is no constitutional barrier to the commission’s promotional advertising ban. (Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483; Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748.) III. Both courts below properly determined that the commission has statutory authority to ban promotional advertising. (Matter of Sleepy Hollow Lake v Public Serv. Comm. of State of N. Y., 43 AD2d 439, 34 NY2d 519; Matter of City of New York v Public Serv. Comm. of State of N. Y., 53 AD2d 164, 42 NY2d 916.)

      Ronald D. Jones, Andrew Gansberg and Howard S. Ockman for Edison Electric Institute and others, amici curiae.

    The commission’s ban on the use of bill insertions to convey utility’s positions on "controversial matters of public policy” is constitutionally unsound. (Wooley v Maynard, 430 US 705; Elrod v Burns, 427 US 347; Buckley v Valeo, 424 US 1; N. A. A. C. P. v Button, 371 US 415; Branzburg v Hayes, 408 US 665; NAACP v Alabama, 377 US 288; Shelton v Tucker, 364 US 479; Martin v Struthers, 319 US 141; Wright v Chief of Tr. Police, 558 F2d 67.)

      Kristin Booth Glen for Scientists’ Institute for Public Information and others, amici curiae.

    I. Con Ed has misrepresented the nature of the record before the commission and the lower courts. (Meiselman v Crown Hgts. Hosp., 285 NY 389; Hoag v Wright, 174 NY 36; Weibert v Hanan, 202 NY 328; Van Wycklen v City of Brooklyn, 118 NY 424.) II. The commission’s order was constitutionally permissible, and even compelled, in view of the right of persons such as Scientists’ Institute for Public Information not to be forced to subsidize the dissemination of views with which they disagree. (Radio Officers v Labor Bd., 347 US 17; Railway Employes’ Dept. v Hanson, 351 US 225; Machinists v Street, 367 US 740; Lathrop v Donohue, 367 US 820; Railway Clerks v Allen, 373 US 118; Abood v Detroit Bd. of Educ., 431 US 209; Retail Clerks v Schermerhorn, 373 US 746; Buckley v American Federation of Tel. & Radio Artists, 496 F2d 305, 419 US 1093; Pipefitters v United States, 407 US 385.) III. The bill insert ban is a justifiable attempt to reasonably accommodate the First Amendment rights of members of the "captive audience” who object to being subjected to Con Ed’s propaganda. (Rowan v Post Off. Dept., 397 US 728; Blount v Rizzi, 400 US 410.) IV. The commission’s bill insert ban is a reasonable time, place and manner restriction which is intended to serve strong State interests that could not be accomplished through less restrictive means. (First Nat. Bank of Boston v Bellotti, 435 US 765; Lehman v City of Shaker Hgts., 418 US 298; Grayned v City of Rockford, 408 US 104; Buckley v Valeo, 424 US 1; Brewer v Brooklyn Union Gas Co., 33 Misc 2d 1015; Hayes v Niagara Mohawk Power Corp., 63 Misc 2d 581; Pollak v Public Utilities Comm. of Dist. of Columbia, 191 F2d 450, 343 US 451; New York Tel. Co. v Public Serv. Comm. of State of N. Y., 36 AD2d 261.) V. The proscription against using bill inserts to promote Con Ed’s views on "controversial matters of public policy” is not too vague. (Red Lion Broadcasting Co. v FCC, 395 US 367; Matter of National Merchandising Corp. v Public Serv. Comm. of State of N. Y., 5 NY2d 485; Matter of City of New York v Public Serv. Comm. of State of N. Y., 53 AD2d 164, 42 NY2d 916.)
   OPINION OF THE COURT

Chief Judge Cooke.

We determine here whether the Public Service Commission exceeded its statutory authority or impinged upon First Amendment rights by restricting certain advertising and promotional practices of public utilities. For the reasons outlined, we hold that the Public Service Commission was within its authority in imposing the restrictions, and that petitioners’ expressional rights were not unconstitutionally impaired.

I

Respondent, New York Public Service Commission, exercises regulatory and supervisory powers over public utilities licensed to operate in the State (see Public Service Law, §§ 5, 66). In 1973 the commission, reacting to the Arab oil embargo, prohibited electric corporations "from promoting the use of electricity through the use of advertising, subsidy payments * * * or employee incentives”. Although the immediate crisis created by the embargo dissipated, no repeal of the promotional ban was effected by the commission. Then, in July of 1976, the commission issued a "Notice of Proposed Policy Statement and Request for Comments on Advertising by Public Utilities and Electric Promotion Practices”. Petitioners, Central Hudson Gas & Electric Corporation and Consolidated Edison Company of New York, Inc., as well as other interested parties, responded to the notice, arguing for relaxation of the promotional ban on both policy and constitutional grounds.

After reviewing the comments received and conducting its evaluation of the problem, the commission rendered a decision on February 25, 1977 entitled "Statement of Policy on Advertising and Promotional Practices of Public Utilities”. In its statement, the commission concluded "that the existing ban on promotion of electricity sales should be continued”. Its reasoning for continuation of the prohibition was succinctly stated: "[Conservation of energy resources remains our highest priority * * * It is reasonable to believe that a continued proscription of promotion of electric sales will result in some dampening of unnecessary growth so that society’s total energy requirements will be somewhat lower than they would have been had electric utilities been allowed to promote sales.”

That same day, the commission released an order addressing the topic of utility bill inserts. By that order, the commission directed all utilities subject to its jurisdiction to "discontinue the practice of utilizing material inserted in bills rendered to customers as a mechanism for the dissemination of the utility’s position on controversial matters of public policy”. This restriction, too, was partially explained in the commission’s policy statement: "We believe that using bill inserts to proclaim a utility’s viewpoint on controversial issues * * * is tantamount to taking advantage of a captive audience, since the consumer cannot avoid receiving the utility’s message.”

Dissatisfied with the decision, Central Hudson and Con Edison petitioned for a rehearing, which was denied by the commission on July 14, 1977. Central Hudson then commenced an article 78 proceeding challenging the advertising and insert bans. Con Edison instituted a separate proceeding in which it objected to only the billing insert measure. Special Term, in brief opinions, ruled that while the commission had power to impose the promotional advertising restriction, it lacked authority to prohibit the use of bill inserts. On appeal, the Appellate Division modified, sustaining both branches of the commission’s determination.

II

At the outset, petitioners challenge the commission’s statutory authority to regulate the content of billing envelopes and the promotional advertising practices of public utilities. It is, of course, a fundamental postulate of administrative law that the Public Service Commission, like other agencies, is possessed of only those powers expressly delegated by the Legislature, together with those powers required by necessary implication (see, e.g., Suffolk County Bldrs. Assn. v County of Suffolk, 46 NY2d 613; Matter of National Merchandising Corp. v Public Serv. Comm. of State of N. Y., 5 NY2d 485, 489; cf. Matter of Bates v Toia, 45 NY2d 460, 464). Nevertheless, the absence of explicit statutory authorization need not be fatal to a given assertion of regulatory power by the commission. For, as we have recognized previously, the Legislature on occasion broadly declares its will, specifying only the goals to be achieved and policies to be promoted, while leaving the implementation of a program to be worked out by an administrative body (see, e.g., Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269, 276; cf. Matter of Bates v Toia, supra). In such cases, the sheer breadth of delegated authority precludes a precise demarcation of the line beyond which the agency may not tread. What is called for, rather, is a realistic appraisal of the particular situation to determine whether the administrative action reasonably promotes or transgresses the pronounced legislative judgment (cf. Matter of Broidrick v Lindsay, 39 NY2d 641, 646).

In the context of this case, without doubt, the Legislature has conferred vast power upon the Public Service Commission (see, e.g., Public Service Law, §§ 4, 5, 65, 66; cf. Matter of Public Serv. Comm. of State of N. Y. v Jamaica Water Supply Co., 42 NY2d 880, affg 54 AD2d 10). Indeed, the commission is expressly endowed with "all powers necessary or proper to enable it to carry out the purposes of’ the Public Service Law (Public Service Law, § 4, subd 1). Added to this is the commission’s specific power of "general supervision of all gas corporations and electric corporations” and "all gas plants and electric plants” (Public Service Law, § 66, subd 1).

In light of current exigencies, one of the policies of any public service legislation must be the conservation of our vital and irreplaceable resources. The Legislature has but recently imposed upon the commission a duty to "encourage all persons and corporations * * * to formulate and carry out long-range programs * * * [for] the preservation of environmental values and the conservation of natural resources” (Public Service Law, § 5, subd 2). Implicit in this amendment is a legislative recognition of the serious situation which confronts our State and Nation. More important, conservation of resources has become an avowed legislative policy embodied in the commission’s enabling act (see, also, Matter of New York State Council of Retail Merchants v Public Serv. Comm. of State of N. Y., 45 NY2d 661, 673-674).

It necessarily follows, therefore, that the commission possesses ample power to prescribe reasonable measures designed to prevent wasteful consumption or unneeded expansion of utility services. By prohibiting promotional advertising of electric power, the commission has taken precisely such a step. In its expertise, the commission could have reasonably concluded that promotional advertising might tend to increase injudicious and unnecessary consumption of electrical power. Given this, the authority for the advertising ban becomes apparent.

Nor did the commission exceed its jurisdiction by prohibiting the inclusion of inserts in utility billing envelopes. The Legislature has granted the' commission express authority "to fix and alter the format and informational requirements of bills utilized by public and private gas corporations, electric corporations and gas and electric corporations in levying charges for service, to assure simplicity and clarity” (Public Service Law, § 66, subd 12-a). Incident to that authority and in the same subdivision it is provided that the "commission shall further ensure periodic explanation of applicable rates and rate schedules for the purpose of assisting customers in making the most efficient use of energy”. Thus, the Legislature has authorized the commission to regulate not only the format and informational content of the bill itself but the entire billing communication. Petitioners invite us to read these provisions narrowly, restricting the commission’s jurisdiction to the actual billing instrument itself rather than extending it to the entire contents of the billing envelope. This artificial distinction must be rejected. By necessary implication, the statute, if it is to amount to more than an empty adage, must provide the commission with authority to oversee the distribution of bill inserts. Were the agency’s power construed to extend only to the bill itself, control over informational content and format "to assure simplicity and clarity” could be severely hampered if not totally undermined. While the bill might be simple and clear, utilities could literally inundate consumers with a morass of irrelevant and conflicting data, forms, and pamphlets, causing confusion and oversight. Indeed, granting the utilities unfettered discretion to include all materials would negate the legislative goals of simplicity and clarity. It is difficult to conceive a legislative intent to permit such a disordered pattern. A more acceptable alternative is an interpretation of the statute empowering the commission to regulate the billing process as a whole.

This construction becomes all the more reasonable when viewed in the context of the entire regulatory scheme. Rather than restricting the PSC’s authority, the Legislature has invested that agency with all powers needed to carry out the purposes of the Public Service Law, as well as power to supervise generally the operation of electric and gas corporations and electric and gas plants (Public Service Law, § 4, subd 1; § 66, subd 1). In view of the expansive definitions of electric and gas plants (Public Service Law, § 2, subds 10, 12), the commission’s supervisory authority must be taken to extend to those "useful and necessary service[s] [and property] which facilitate” or are used in connection with the "manufacture, conveying, transportation, distribution, sale, or furnishing” of utility power (Matter of National Merchandising Corp. v Public Serv. Comm., 5 NY2d 485, 490-491, supra; Public Service Law, § 2, subds 10, 12). Control of the billing procedure, a process necessarily adjunct to the furnishing of utility service, thus fits neatly into the PSC’s supervisory role. This supervisory power, combined with the more specific billing regulatory authority, provides ample justification for commis^ sion oversight of billing envelope content.

To summarize, the Public Service Commission is possessed of sufficient statutory power to prohibit the promotional advertising of electricity and to prescribe the content of electric and gas corporation consumer billing envelopes.

III

The commission’s actions being within the limits of its delegated authority, petitioner’s First Amendment contentions must be addressed. The constitutional attack is directed at both the outright prohibition of promotional advertising and the ban on bill enclosures dealing with controversial topics.

Analysis in the First Amendment area proceeds on one of two tiers, depending upon the nature of the restriction which government has imposed (see, e.g., Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv L Rev 1482). At one level, government regulation designed to suppress traditional communicative activity because of its content or potential impact is subject to the most rigorous scrutiny. Absent some compelling justification, such as a likelihood that speech will incite "imminent lawless action”, content-oriented restrictions may not stand (Brandenburg v Ohio, 395 US 444, 447; see Hess v Indiana, 414 US 105; United States v O’Brien, 391 US 367, 376-377; see, generally, Gunther, Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History, 27 Stan L Rev 719). On the second tier are those governmental measures which, although not directly aimed at all communication, inhibit the free flow of information or ideas. The validity of such a restraint is gauged by balancing the various competing interests, with due regard for the status of First Amendment rights in our constitutional scheme. Thus, so long as a facially neutral regulation does not unduly constrict the exercise of protected rights, it is not unconstitutional (compare Buckley v Valeo, 424 US 1, 60-84, with Schneider v State, 308 US 147; see, generally, Note, Less Drastic Means and the First Amendment, 78 Yale U 464).

A

In the present case, the prohibition on billing inserts, which was designed to vindicate the privacy rights of utility customers, constitutes at best an indirect restraint upon ex-pressional activity. It extends not to all speech of a prescribed content, but only to one manner of communication. No one viewpoint is singled out for special treatment, nor is the general right to express ideas in other forums effected. In short, the PSC is concerned with but one particular means of expression, and then only to a limited extent.

It is well settled that government may impose reasonable restrictions upon the time, place and manner of communication (see, e.g., Grayned v City of Rockford, 408 US 104, 115-117; Kovacs v Cooper, 336 US 77; Cox v New Hampshire, 312 US 569, 575). To constitute a valid time, place and manner restriction, a regulation must be content neutral, supported by a significant governmental interest, and not foreclose alternative channels of expression (e.g., Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748, 771). Respondent PSC urges that its billing insert decree satisfies these criteria. It is correct.

There is no doubt but that the regulation leaves open numerous alternative means of communication. On its face, the ban only reaches expressional activity conducted through the billing envelope. Whatever other modes of speech were open to utilities prior to the effective date of the commission order remain available. That the cost of utilizing these alternative channels may be higher is not determinative, especially where, as here, petitioner has wholly failed to demonstrate that it will be effectively precluded from exercising its rights (see, e.g., Kovacs v Cooper, 336 US 77, 88-89, supra).

In a similar vein, the ban unquestionably fosters an important governmental interest. Consumers of utility services, like many others in captive situations, have no choice concerning receipt of a periodic statement from the power company. Whatever materials are enclosed in the envelope are destined to come in contact with the addressee. When the insert espouses the utility’s viewpoint on a controversial question, it is as likely to offend the sensibilities of the recipient as it is to elicit agreement. Government need not stand idly by and deny assistance to those who are inflamed by having a particular opinion foisted upon them. "Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit; we see no basis for according the printed word * * * a different or more preferred status because [it is] sent by mail. The ancient concept that 'a man’s home is his castle’ into which 'not even the king may enter’ has lost none of its vitality, and none of the recognized exceptions includes any right to communicate offensively with another” (Rowan v Post Off. Dept., 397 US 728, 737; see, also, Martin v Struthers, 319 US 141; Black, He Cannot Choose But Hear: The Plight of the Captive Auditor, 53 Col L Rev 960). A governmental agency such as the PSC may take appropriate steps to protect this privacy right of its constituents (Kovacs v Cooper, supra, at pp 86-89; Cohen v California, 403 US 15, 21-22; see, also, Public Utilities Comm. v Pollak, 343 US 451, 466-469 [Douglas, J., dissenting]).

Finally, the regulation, properly viewed, is not content oriented. True, the directive sweeps within its strictures only those bill inserts treating controversial topics. But it does not discriminate against persons of any particular political stripe or prohibit the expression of any one position on a hotly debated issue. In short, the restriction endeavors, in an objective and evenhanded manner, to limit billing insert materials to the innocuous and noncontroversial. Given these circumstances, where the communication intrudes upon the privacy of the home, such a limitation does not offend the First Amendment (Erznoznik v City of Jacksonville, 422 US 205, 209; see Greer v Spock, 424 US 828, 838-839; Lehman v City of Shaker Hgts., 418 US 298, 302-304; see, Tribe, American Constitutional Law, § 12-21, at pp 690-691, & n 21).

Accordingly, because it satisfies the above criteria, the PSC order banning bill inserts constitutes a valid time, place and manner regulation.

B

To be contrasted is the commission directive proscribing all promotional advertising of electric service. Rather than an oblique inhibition, this order works a direct curtailment of expressional activity: an entire category of speech is prohibited because of its potential impact upon the society. As noted, content-oriented regulations have been subjected to an exacting standard of review, the precise level of that standard being determined by reference to the nature of the communication.

Until recently, communication in the commercial sphere would not have been accorded any First Amendment recognition (compare Valentine v Chrestensen, 316 US 52, with Bigelow v Virginia, 421 US 809). While now entitled to a measure of constitutional protection, the full panoply of safeguards afforded more traditional communications does not necessarily attach (Ohralik v Ohio State Bar Assn., 436 US 447, 456). Our task, therefore, is to apply the emerging principles of the commercial speech doctrine to the present context.

A common theme sounding in commercial speech cases is the notion that society, as a whole, "may have a strong interest in the free flow of commercial information” (Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748, 764, 765; see, e.g., Linmark Assoc. v Willingboro, 431 US 85, 92; Bates v State Bar of Ariz., 433 US 350, 364-365). In a market system such as ours, allocation of resources is largely accomplished through a confluence of private economic decisions. Society possesses a vital interest in ensuring that these economic decisions are consummated in an intelligent, well-informed atmosphere, and the free flow of commercial information is indispensable to the attainment of this goal (e.g., Virginia Pharmacy Bd. v Virginia Consumer Council, supra, at p 765).

The individual consumer, too, has a stake in the availability of commercial information. To many, knowledge of the price and availability of goods and services takes on an importance overshadowing even the most urgent political debate. Especially in these days of rapidly fluctuating prices, the free flow of commercial information plays a central role in consumer decisionmaking. Indeed, it could mean the difference between enjoyment or nonenjoyment of basic necessities (see Virginia Pharmacy Bd. v Virginia Consumer Council, supra, at p 764).

Recognition of these interests accounts, in large measure, for the protections extended commercial speech. In a competitive market, information concerning the availability and price of goods and services is essential to consumers. Analysis of precedent bears out this observation. In Virginia Pharmacy Bd. v Virginia Consumer Council (425 US 748, supra), for example, the State sought to prohibit advertising of prescription drug prices. Acknowledging the State’s strong interest in ensuring the professionalism of pharmacists, the Supreme Court nonetheless found the societal and individual benefits flowing from price advertising in this competitive industry to be superordinate: "Virginia is free to require whatever professional standards it wishes of its pharmacists; it may subsidize them or protect them from competition in other ways. * * * But it may not do so by keeping the public in ignorance of the entirely lawful terms that competing pharmacists are offering” (id., at p 770). Similarly, in Bates v State Bar of Ariz. (433 US 350, supra), a disciplinary rule restricting advertising by attorneys was invalidated. In so doing, the court again highlighted the role of commercial information in a free enterprise economy, commenting that "such speech serves individual and societal interests in assuring informed and reliable decisionmaking” (id., at p 364). The various justifications offered in support of a ban on attorney advertising were deemed insufficient to override these interests (id., at pp 366-379).

By the same token, where the importance of the free flow of commercial information is diminished, either because of market structure of the industry or hazards associated with a particular means of communication, First Amendment protection reaches its nadir. This dichotomy is aptly illustrated by Ohralik v Ohio State Bar Assn. (436 US 447, supra), where a prohibition of in-person solicitation by attorneys was upheld. Ohralik recognizes the " 'common-sense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” For this reason, commercial speech occupies a "subordinate position in the scale of First Amendment values” (id., at p 456). Thus, a particular mode of advertising which would not well serve the societal interest in informed decisionmaking, such as in-person solicitation, may constitutionally be banned: "In-person solicitation is as likely as not to discourage persons needing counsel from engaging in a critical comparison of the 'availability, nature, and prices’ of legal services * * * it actually may disserve the individual and societal interest * * * in facilitating 'informed and reliable decisionmaking’ ” (id., at pp 457-458). Such speech, Ohralik teaches, may be prohibited in the public interest.

Applying these principles, the ban on promotional advertising of electricity is consistent with First Amendment strictures. Public utilities, from the earliest days in this State, have been regulated and franchised to serve the commonweal. Our policy is "to withdraw the unrestricted right of competition between corporations occupying * * * the public streets * * * and supplying the public with their products or utilities which are well nigh necessities” (People ex rel. New York Edison Co. v Willcox, 207 NY 86, 99; Matter of New York Elec. Lines Co., 201 NY 321). The realities of the situation all but dictate that a utility be granted monopoly status (see People ex rel. New York Elec. Lines Co. v Squire, 107 NY 593, 603-605). To protect against abuse of this superior economic position, extensive governmental regulation has been deemed a necessary co-ordinate (see People ex rel. New York Edison Co. v Willcox, supra, at pp 93-94).

In view of the noncompetitive market in which electric corporations operate, it is difficult to discern how the promotional advertising of electricity might contribute to society’s interest in "informed and reliable” economic decisionmaking. Consumers have no choice regarding the source of their electric power; the price of electricity simply may not be reduced by competitive shopping. At best consumers may seek, through the Public Service Commission, to limit future increases in electrical prices. Surely promotional advertising would provide no information of assistance in this respect.

Indeed, promotional advertising is not at all concerned with furnishing information as to the "availability, nature, and prices” of electrical service. It seeks, instead, to encourage the increased consumption of electricity, whether during peak hours or oif-peak hours. Thus, not only does such communication lack any beneficial informative content, but it may be affirmatively detrimental to the society. It would not strain the bounds of judicial notice for us to take cognizance of the present energy crisis. Conserving diminishing resources is a matter of vital State concern and increased use of electrical energy is inimical to our interests. Promotional advertising, if permitted, would only serve to exacerbate the crisis. In short, this constitutes a compelling justification for the ban.

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

Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur with Chief Judge Cooke.

In each case: Order affirmed.

      . Added by chapter 527 of the Laws of 1977, approved August 1, 1977. In a case such as this one, we have no difficulty in applying the principle that we must decide the case on the basis of the law as it exists today. (Strauss v University of State of N. Y., 2 NY2d 464, 465.) It would be but a futile exercise to annul the PSC determination on the basis of prior law only to have the agency validly repromulgate its order under the recent amendment.

      . We are not suggesting that the fate of a business entity’s First Amendment rights turns upon its economic self-interest (see First Nat. Bank of Boston v Bellotti, 435 US 765). To the contrary, petitioners’ economic interest would be well served by promotional advertising. Rather, it is the beneficial or detrimental impact of commercial information upon society which assumes importance on analysis.


author: Fuchsberg, J.

text:
    David Messina, Respondent, v Lufthansa German Airlines et al., Appellants.
    Argued March 26, 1979;
    decided May 3, 1979

      POINTS OF COUNSEL

      Robert L. Ferris for appellants.
    I. The plain meaning of the clear and unambiguous labor contract between the parties requires that the parties’ intent be accepted. Accordingly, plaintiff was timely notified of the extension of his probationary employment period and he was thereafter properly discharged. (First Nat. Bank of East Islip v National Sur. Co., 228 NY 469; Western Union Tel. Co. [American Communications Assoc.], 299 NY 177; Janos v Peck, 21 AD2d 529; Seifert, Hirshorn & Packman v Insurance Co. of North Amer., 36 AD2d 506; Shur-On Std. Opt. Co. v Viopaki Co., 221 App Div 261; Kushlin v Bialer, 32 AD2d 217; Nemmer Furniture Co. v Select Furniture Co., 25 Misc 2d 895.) II. The circumstances surrounding the making of the labor contract disclose that the parties intended that only fully qualified employees be retained, with due regard to extending the probationary employment period within the terms of the contract. (Fleetash Realty Co. v Severio Constr. Co., 21 Misc 2d 350.) III. The conduct and practice of the parties under this labor contract is vital to ascertaining the interpretation and meaning of the parties. The unvarying conduct and practice of these parties requires the reversal of the determination herein. (Clausen v Title Guar. & Sur. Co., 168 App Div 569; Woolsey v Funke, 121 NY 87; Chard v Ryan-Parker Constr. Co., 182 App Div 455; Associated Flour Haulers & Warehousemen v Sullivan, 168 Misc 315; Frye v State of New York, 192 Misc 260.) IV. Section 20 of the General Construction Law is not applicable since it contradicts the expressed intention of the parties. (Marvin v Marvin, 75 NY 240; Pomeranz v More, 187 Misc 383.) V. In any event, section 20 of the General Construction Law does not apply to probationary periods of employment. (Matter of O’Grady v Low, 74 App Div 246; Matter of Silverman v Taylor, 270 App Div 1040; Matter of Maynard v Monaghan, 284 App Div 280.)

      Sherwood Allen Salvan for respondent.
    I. In the absence of a clear and unambiguous expression to the contrary, section 20 of the General Construction Law may be applied to resolve a dispute arising from a private contract. (Union Mut. Life Ins. Co. v Kevie, 17 AD2d 109; Biloz v Tioga County Patrons’ Fire Relief Assn., 260 App Div 976; Barnet v Cannizzaro, 3 AD2d 745; Goon v Fu Manchu’s Rest., 253 App Div 531.) II. Neither the agreement nor the evidence introduced at trial suggest an alternative method for resolving the dispute as to timeliness of service of the notice of intent. (Townsend v Bell, 167 NY 462.) III. The application of section 20 of the General Construction Law is not inappropriate or inequitable. (Matter of O’Grady v Low, 74 App Div 246; Matter of Silverman v Taylor, 270 App Div 1040; Matter of Maynard v Monaghan, 284 App Div 280.)
   OPINION OF THE COURT

Fuchsberg, J.

This case presents a seemingly uninvolved but apparently recurring question as to how to measure a time period specified in a contract in terms of a number of days before or after a particular date. Raised in that connection is the applicability of section 20 of the General Construction Law to contracts. The issue is here in the context of a case involving the timeliness of an employer’s notice of its intention to extend a probationary employment period pursuant to the terms of a collective bargaining agreement.

The facts are simple. Plaintiff David Messina was hired by defendant Lufthansa German Airlines on September 22, 1975. The written contract which governed his employment provided that he was to be regarded as a temporary employee— and thus subject to dismissal without cause — for the first 60 days. November 20 was plaintiff’s 60th day of employment. The agreement also empowered Lufthansa to extend the probationary period for an additional 30 days "provided the employee in question and the Union are notified in writing ten (10) days before the expiration of the first sixty (60) days of employment”. On November 11, Lufthansa gave notice of its intention to extend the period until December 20. Plaintiff was discharged on December 17 without a hearing to establish cause as the agreement required for nonprobationary employees. Suing for a declaratory judgment, plaintiff also sought reinstatement and recovery for loss of wages.

The focus of the appeal as it now comes to us is whether the notice of extension was too late to be effective. Messina argues that, in fixing the date by which notice had to be given, the final day of probation, November 20, had to be excluded and that, therefore, November 10 was "ten (10) days before the expiration” while November 11 was one day short of that. But Lufthansa asserts that November 20 must be included in the computation and that, therefore, notice on November 11 was in time.

Special Term held that the notice given was untimely; it ordered Lufthansa to rehire Messina and pay him for his lost wages. The Appellate Division affirmed, one Justice dissenting (64 AD2d 890).

We agree with the courts below that Lufthansa’s notice of extension was late. The contract language governing notice is not obscure and, while the parties here have demonstrated that it is possible to contend for two interpretations, we have no difficulty in choosing between them. Our reasons follow.

Initially, we observe that, on the narrow issue we now face the record itself offers no clue as to the subjective intent of the parties to the agreement at the time the 10-day notice clause was drafted. Except presumably to arrive at 10 rather than another number of days, so far as we are told the opposing views now advanced were neither discussed nor given any thought during the collective bargaining process. In such circumstances, words in a writing are ordinarily given the meaning which those to whom they are addressed would reasonably be expected to perceive (see, generally, Restatement, Contracts, § 230; 4 Williston, Contracts [3d ed], § 607). In a case where both parties signed the agreement (here the employer for itself and the union on behalf of its employees), the one so addressed is the court that may have occasion to pass upon and apply and what was written (4 Williston, Contracts [3d ed], § 603).

Put another way, it may be said that the parties, rather than inviting consideration of their intention as of the time of contract formation, have delegated the right to interpret their words to an objective tribunal. It is notable that, in the application of this perception of the interpretive process where there is no apparent guide to subjective intention, "there should be no essential difference between public and private documents [i.e., between statutes and contracts]” (Curtis, A Better Theory of Legal Interpretation, Jurisprudence in Action, pp 133,161 [1953]).

We also see no reason why, in the absence of a contractual or statutory expression of a contrary intention, section 20 of the General Construction Law should apply to statutes alone. Section 20 of the General Construction Law provides "A number of days specified as a period from a certain day within which or after or before which an act is authorized or required to be done means such number of calendar days exclusive of the calendar day from which the reckoning is made”. Our examination of the cases reveals that, though some Judges have been equivocal as to whether the section was intended to encompass contracts as well as statutes, none spells out any basis for such a distinction (see Union Mut. Life Ins. Co. v Kevie, 17 AD2d 109, affd 13 NY2d 971; Barnet v Cannizzaro, 3 AD2d 745; Goon v Fu Manchu’s Rest., 253 App Div 531; Biloz v Tioga County Patrons’ Fire Relief Assn., 21 NYS2d 643, affd 260 App Div 976; Pomeranz v More, 187 Misc 383).

Moreover, it is significant that the official title of the General Construction Law was changed from "Statutory Construction Law” to its present form in order to clarify the inclusion of sections applicable to contracts and other instruments, and, although section 20 does not expressly so state, the consolidators’ notes indicate that, in addition to its original purpose to serve as an aid to statutory interpretation, the construction law generally "was intended to apply to contracts” as well (Consolidators’ Notes, McKinney’s Cons Laws of NY, General Contruction Law, Book 21, pp ix-x).

We therefore conclude that, under section 20, since the first 60 days of Messina’s employment expired, at the latest, at midnight on November 20 (see General Construction Law, § 19; Matter of O’Grady v Low, 74 App Div 246), that day must be excluded in calculating the 10-day notice period. So calculated, November 19 was the first day before expiration, and November 10 the 10th day. Accordingly, notice on November 11 was one day late.

It seems to us that this conclusion finds support in elementary logic and arithmetic. If the contract had required notice one day before expiration, it could hardly be suggested that notice on the very day of expiration itself would be timely. So, if November 19 is the first day before expiration, a fortiori, November 10 is the 10th. Alternatively, the 10-day period may be viewed as establishing a precise deadline. If midnight on November 20 is the moment of expiration, notice would have to precede it by at least 10 24-hour periods, making midnight on November 10, once again, the latest that notice could have been given.

Furthermore, each of these methods achieves a result that is in complete accord with the common-law rule (see Kane v City of Brooklyn, 114 NY 586, 594-595).

Accordingly, the Appellate Division order should be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur with Judge Fuchsberg.

Order affirmed, with costs.


author: Fuchsberg, J. Gabrielli, J.

text:
    The People of the State of New York, Respondent, v Dominick Byrne, Appellant.
    Argued March 28, 1979;
    decided May 8, 1979

      POINTS OF COUNSEL

      Peter E. De Blasio for appellant.
    I. It was prejudicial and reversible error for Judge Beisheim to fail to suppress the oral confession of defendant-appellant, Dominick Byrne, given to FBI Special Agents, McGonigle and Fuller, on Sunday, August 17, 1975, prior to 2:10 p.m. once he found that the law enforcement officers violated the law and defendant-appellant’s constitutional right to counsel, by continuing to question defendant-appellant, Dominick Byrne, thereafter until about 4:30 p.m. in the absence of counsel following notification of counsel’s retention at 2:10 p.m. (People v Donovan, 13 NY2d 148; People v Failla, 14 NY2d 178; People v Arthur, 22 NY2d 325; People v Hobson, 39 NY2d 479.) II. The sentence of three years to nine years imprisonment was excessive, unduly harsh and unwarranted under the circumstances of this case. In the event this court does not reverse the conviction, it should nevertheless vacate the sentence and direct that defendant-appellant Byrne be resentenced to time already served. Defendant-appellant Dominick Byrne was incarcerated for 19 months from the date of his arrest on August 17, 1975 until March 11, 1977 when Vito Titone, a Justice of the Appellate Division, set bail pending appeal from his conviction of extortion and a sentence of three to nine years imprisonment. By any possible standard or criterion, that sentence was grossly excessive and amounts to cruel and unusual punishment under the circumstances in this case.

      Carl A. Vergari, District Attorney (Janet Cunard of counsel), for respondent.
    I. Defendant’s statements prior to 12:50 p.m. were properly admitted in evidence. (People v Ramos, 40 NY2d 610; People v Failla, 14 NY2d 178; People v Gunner, 15 NY2d 226; People v Lynch, 61 AD2d 723; People v Johnson, 40 NY2d 882; People v Rizzo, 40 NY2d 425; People v Berrios, 28 NY2d 361.) II. The issue of excessiveness of sentence is beyond the jurisdiction of this court. (People v Gittelson, 18 NY2d 427.)
   OPINION OF THE COURT

Fuchsberg, J.

At about 2:00 a.m. on August 9, 1975, Edgar Bronfman received a telephone call from his 22-year-old son, Samuel, advising him that he had been kidnapped at gunpoint, that he was in fear of his life and that his captors would shortly communicate their demands. The week ahead bore witness to a series of sensational events that first led to the successful transfer of a 2.3 million dollar ransom and eventually culminated in the rescue of young Bronfman and the arrest of Mel Patrick Lynch and Dominick Byrne, both of whom were ultimately found guilty of grand larceny in the first degree.

Lynch’s appeal from his sentence and Byrne’s from his judgment of conviction have since been affirmed by the Appellate Division. On Byrne’s further appeal to this court, the primary issue is whether it was error for the Trial Judge to have allowed certain oral statements taken from this defendant to be received in evidence when the FBI agents who took them subsequently violated the defendant’s constitutional right to counsel. He also argues that the statements should have been suppressed because his interrogators did not interrupt their questioning to accommodate his request that he be permitted to visit a church. We conclude that both contentions are without merit.

The defendants were apprehended shortly after midnight on Sunday, August 17, after Byrne contacted the New York City police and related a remarkable tale, which, in essence, described how he and Lynch had been coerced into participating in the Bronfman kidnapping by several unidentified gunmen. Upon the arrival of the FBI agents, who had undertaken the investigation of the case, he repeated the same story and led them to Lynch and Samuel Bronfman.

Byrne was next taken to FBI headquarters where at 5:14 a.m. the questioning that furnishes the grounds for this appeal began. It is not denied that Byrne was fully advised of his constitutional rights and that no physical or other coercion was ever employed. After again reciting the version of the kidnapping he had already related, at about 6:50 a.m., Byrne repudiated that story and gave the "true” account of the crime. After a number of interruptions, including two for conferences that he was permitted to have with Lynch, he handed the agents the key to the apartment where the money was hidden and then, from 9:00 a.m. until 12:20 p.m., when he was given lunch, he spelled out a day-by-day description of the planning and execution of the kidnapping. Though somewhat more detailed, except to indicate that Byrne and Lynch had acted alone, it did not differ significantly from his original narration.

At about 12:50 p.m. two Assistant United States Attorneys started to query him anew. This interview was still in progress when, at 2:10 p.m., Peter E. De Blasio, the attorney retained by Byrne’s wife, calling from New Hampshire to FBI headquarters, informed the agent in charge that Byrne was his client and requested that the questioning cease. The Government did not respect this advice. Its attorneys continued their ongoing examination until about 2:50 p.m., at which time Byrne signed a statement. The agents thereafter supplemented their own interview too, this culminating in another signed confession at 7:00 p.m.

After a hearing on Byrne’s motion to suppress the fruits of all the questioning, the trial court ruled inadmissible the written statement secured by the Government attorneys at 2:50 p.m. together with all the oral statements elicited preceding its execution from the very time the attorneys had first arrived two hours earlier. It also excluded any statements, written and oral, made to the agents during that interval or thereafter. Thus, at the trial neither written or oral inculpatory statements made after counsel’s 2:10 p.m. telephone call went to the jury (People v Garofolo, 46 NY2d 592; People v Hobson, 39 NY2d 479, 481; People v Gunner, 15 NY2d 226, 232). However, since that left in the oral statements taken by the agents earlier that day, defendant, relying on People v Failla (14 NY2d 178), argues that, once defense counsel had notified the FBI of his representation, continued interrogation vitiated not only so much of his confessions as were thereafter elicited but any prior portions as well.

True, in Failla we held that the part of an ongoing confession that had been taken prior to the entry of a lawyer should have been suppressed along with the portion that had been obtained after counsel had made his presence known. However, since the rule that case pronounced was not handed down in the abstract, we look to its circumstances to discern its holding. There, the defendant’s lawyer presented himself to the police barely two minutes after their questioning of the defendant had started, but deliberately was kept waiting for nearly two hours until it was all over. Thus, the portion of the confession that preceded the exclusion of the lawyer was so insubstantial that it could be said that, as a practical matter, it was as if all of it had followed the violation (cf. People v Garofolo, supra). In this regard, Failla was totally unlike the present case, in which one set of interrogators (the agents) had spent many hours with Byrne and the other (the Assistant United States Attorneys) had done so for almost an hour and a half before the De Blasio call came in.

Obviously inapplicable here is the converse principle — that an invalidly obtained prior confession may require exclusion of a subsequent validly taken one (see People v Valerius, 31 NY2d 51, 55). Simply stated, once the police have illegally caused a defendant to "let the cat out of the bag”, statements he makes afterward, no matter the safeguards the police employ as to these, may be found as a matter of fact to stem from the initial illegality (see, e.g., People v Chapple, 38 NY2d 112, 115; People v Stephen J. B., 23 NY2d 611, 615). However, it is noteworthy that in such cases the taint is prospective only, never retrospective.

Nor is this a case in which statements given prior to the intervention of counsel and ones made afterwards are so inextricably bound together that it is impossible to clearly separate the admissible from the inadmissible content. It is also not one in which for some reason it cannot be ascertained which portions of a statement preceded the overlooking of the right to counsel and which were made subsequent to that abuse. Neither such contingency troubles us here. There are affirmed findings of fact that the statements elicited after 2:10 p.m. were either duplicative or committed to a written form; the writings were excluded. Moreover, in this case contemporaneously recorded notes of the agents and the line of demarcation created by the interview session conducted by the Government attorneys (whose own work product was suppressed), acted as an important check against the potential for vagaries that sometimes characterize oral recollections (see People v Garofolo, supra, p 602).

Finally, we reject out of hand the rather ingenious attempt to equate the agents’ deferment of Byrne’s request that he be taken to church midst his Sunday morning interrogation with the deliberate frustration of access to counsel described in our recent decision in People v Bevilacqua (45 NY2d 508). In Bevilacqua (p 514), we perceived a "seemingly conscious scheme * * * to prevent [an 18-year-old defendant] from establishing contact with anyone who might be able to provide him with assistance or advice”. There, despite the defendant’s repeated request, the police prevented him from notifying his mother of his arrest until after he had confessed. By transporting him to a police station different from the one to which the other perpetrators of the crime had been taken, they frustrated attempts to learn where he was being held. And, to make the cheese more binding, later they concealed his location from his lawyer. The total effect, among other things, was to seriously impair the right to counsel.

None of these elements inhere in the present case. And there is no indication that Byrne’s church request flowed from other than a generalized desire to pray for divine counsel or merely to attend regular Sunday services. Specifically, the record gives no inkling of any intention to seek the aid of a clergyman rather than that of a lawyer as a primary source of help and advice. In any event, the constitutional right to counsel does not metamorphosize into a right to consult clergymen, physicians or others whose capabilities in such situations vary materially from those of members of the Bar.

For all these reasons, the order of the Appellate Division should be affirmed.

Gabrielli, J.

(concurring). I concur in result only.

The basic issue in this case deals with the admissibility of certain oral statements made by defendant prior to a phone call received by the authorities from his attorney. Since the statements made prior to this phone call are readily severable from the properly suppressed written statement taken subsequent to the phone call, I find no legal impediment to the admissibility of the prior oral statements.

There is no merit to defendant’s other contentions; and I vote to affirm the order of the Appellate Division.

Chief Judge Cooke and Judges Jasen, Jones and Wachtler concur with Judge Fuchsberg; Judge Gabrielli concurs in result only in a separate opinion.

Order affirmed.


author: Per Curiam.

text:
    The People of the State of New York, Appellant, v John Johnson, Respondent.
    Argued March 30, 1979;
    decided May 8, 1979

      POINTS OF COUNSEL

      Mario Marola, District Attorney (Allen H. Saperstein and Billie Manning of counsel), for appellant.
    I. Defendant’s guilt was established beyond a reasonable doubt. (People v Becker, 215 NY 126; People v Seidenshner, 210 NY 341; People v Tait, 234 App Div 433, 259 NY 599; People v Regina, 19 NY2d 65.) II. Defendant received a fair trial. (People v Mirenda, 23 NY2d 439; People v Zackowitz, 254 NY 192; People v Kitchen, 55 AD2d 575; People v Reddy, 261 NY 479; People v Crimmins, 38 NY2d 407.)

      Andrew C. Fine and William E. Hellerstein for respondent.
    I. The People’s appeal should be dismissed because the determination of the court below to reverse was not founded upon the law alone. (People v Williams, 31 NY2d 151; People v Mackell, 40 NY2d 59; People v Hughes, 41 AD2d 333, 36 NY2d 981; People v Woodruff, 27 NY2d 801.) II. Respondent, accused of felony murder committed with a blunt instrument, was deprived of his due process right to a fair trial by the prosecutor, who injected into the trial and displayed before the jury a pipe taken from respondent by police although he knew that this pipe was not the murder weapon and that there was no legitimate basis for its admission, and then made the unsupported argument on summation that respondent had struck the victim with a pipe. (People v Tassiello, 300 NY 425; People v Posner, 273 NY 184; People v Mullin, 41 NY2d 475; People v Zackowitz, 254 NY 192; People v Molineux, 168 NY 264; People v Carborano, 301 NY 39.)
   OPINION OF THE COURT

Per Curiam.

Although the original order of the Appellate Division had posited the reversal "on the law and as a matter of discretion in the interest of justice”, upon motion to resettle by the People both the order and memorandum were amended to eliminate the recital of discretion as a basis for the decision. Well settled is our power to look beyond the form of an appellate court’s order to see that its substance, and not only its label, conforms to the statutory requisites for our review (People v Williams, 31 NY2d 151, 153-154; People v Woodruff, 27 NY2d 801; see People v Coppa, 45 NY2d 244, 248-249).

In this case, while the Appellate Division did attempt to conform the accompanying memorandum to its amended order, the change thus effected did not obviate the underlying limitation. Despite the statement in the resettled order that the reversal was made solely on the law, the amended memorandum continued to yield a contrary interpretation. That opinion was based in part upon specifically cited instances of prosecutorial misconduct which, because no objections were taken by defendant’s counsel, presented no questions of law for appellate review in our court (CPL 470.05, subd 2; see People v Robinson, 36 NY2d 224). The failure to delete the references to these unpreserved errors makes it evident that the court’s decision must have been premised at least partially on the exercise of discretion and, hence, cannot be said to have been "on the law alone” (People v Williams, 31 NY2d 151, 154, supra; People v Rainey, 27 NY2d 748, 749; People v Cohen, 5 NY2d 282, 290-292; cf. People v Rossi, 11 NY2d 379, 383). As we said in People v Williams (supra, p 153), "intermediate appellate courts should not routinely grant motions to resettle orders solely for the purpose of conforming their orders to the jurisdictional requirements of this court.” Especially is this so where, as here, all contrary bases for the decision have not been withdrawn from both the order and the opinion.

Accordingly, the appeal should be dismissed on the ground that the determination to reverse did not satisfy the jurisdictional predicate that it be made "on the law alone” (see CPL 450.90, subd 2).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in Per Curiam opinion.

Appeal dismissed.