text:
    The People of the State of New York, Respondent, v Gerald Joseph McConnell, Appellant.
    Argued January 4, 1980;
    decided February 20, 1980

      POINTS OF COUNSEL

      Donald J. Martin for appellant.
    I. When a defendant has been induced to plead guilty in reliance on a promised sentence and all bargained conditions are performed, the sentence promise must be fulfilled or defendant be allowed to withdraw his plea. (Santobello v New York, 404 US 257; People v Selikoff, 35 NY2d 227; People v Esposito, 32 NY2d 921; People v McClinton, 43 AD2d 930; People v Dreusike, 42 AD2d 920; People v Frederick, 45 NY2d 520; People v Johnson, 48 AD2d 643; People v Weyant, 43 AD2d 700; People v Flynn, 42 AD2d 919.) II. If the bargained agreement is not to be honored, both the State and defendant are entitled to and must be restored to their status existing before the plea. (People v Rice, 25 NY2d 822; People v Griffith, 43 AD2d 20; People v Johnson, 48 AD2d 643; People v Glasby, 44 AD2d 541; People v Selikoff, 35 NY2d 227; People v Flynn, 42 AD2d 919; People v Blackwell, 42 AD2d 973; People v Di Giacomo, 40 AD2d 689.) III. Where either the State or defendant would be prejudiced by withdrawal of the plea, the promised sentence must be fulfilled. (Santobello v New York, 404 US 257; People v Selikoff, 41 AD2d 376, 35 NY2d 227; People v Esposito, 32 NY2d 921; People v Parra, 57 AD2d 964; People v Johnson, 48 AD2d 643; People v Craig, 41 AD2d 932.) IV. Due process and the interests of justice require enforcement of the plea bargain in this case. (Santobello v New York, 404 US 257; People v Campana, 33 NY2d 538.)

      Richard A. Hennessy, Jr., District Attorney (John A. Cirando and Edward Z. Menkin of counsel), for respondent.
    I. In view of the affirmance of the court below of the factual issues in this case, appellant’s claims as to the terms of the plea bargain and whether that plea bargain was violated are not properly before this court. (People v Gruttola, 43 NY2d 116; People v Rizzo, 40 NY2d 425; People v Anthony, 24 NY2d 696; People v Blim, 46 NY2d 934; People v Yarter, 41 NY2d 830, 433 US 910; People v Jackson, 38 NY2d 772; People v Maney,
      37 NY2d 229; People v Selikoff, 35 NY2d 227, 419 US 1122; People v Nalo, 47 AD2d 613; People v Chadwick, 33 AD2d 687.) II. In view of the plea bargain in this case, the sentence imposed was proper in all respects. (People v Blim, 46 NY2d 934; People v Payton, 45 NY2d 300; People v Selikoff, 35 NY2d 227, 419 US 1122; Matter of Chaipis v State Liq. Auth., 44 NY2d 57; Miranda v Arizona, 384 US 436; People v Anderson, 42 NY2d 35; People v Jackson, 41 NY2d 146; Weatherford v Bursey, 429 US 545; People v Venable, 46 AD2d 73, affd sub nom. People v Broadie, 37 NY2d 100.)
   OPINION OF THE COURT

Meyer, J.

Is it an abuse of discretion for a Trial Judge, who believes that information learned during the trial of a codefendant warrants his doing so, to impose a 15-year sentence upon a defendant who pleads guilty to manslaughter, second degree, with the understanding that the maximum sentence imposed will be 10 years, where defendant has, as agreed in plea negotiations, testified before the Grand Jury, resulting in indictment of himself and his three codefendants, testified before the petit jury on the trial of one codefendant, resulting in conviction of that codefendant, and whose availability to testify against the other codefendants, the prosecutor agrees, was instrumental in their pleading guilty? We hold that under the circumstances of this case hereafter detailed, defendant is entitled to specific performance of the plea bargain. The order of the Appellate Division should, therefore, be reversed and the case remitted to Onondaga County Court for resentence to an indeterminate term with a maximum of 10 years in accordance with the defendant’s plea.

On July 19, 1976, defendant was an airman at an Air Force base, as were codefendants Carroll, Rock and Bridges and as was Ricky Hasman. Prior to that date none of the defendants had ever been involved in a crime. During the early morning hours of July 19, 1976 Airman Hasman was brutally beaten to death on a deserted road near the base, after a day during which, as the Trial Judge noted at defendant’s sentencing, McConnell, Carroll, Rock and Bridges drank heavily and there was "drug abuse from the rock concert to the orgy of the barracks to the site of later what was to be an execution on Dope Smoker’s Road”, following which "three people [defendant, Carroll and Hasman] went down that road from where you were parked. Two stayed at the car. Three went down and only two returned.”

During the investigation which followed Hasman’s death, defendant McConnell’s attorney agreed with the Assistant District Attorney in charge of the matter that in exchange for McConnell’s testimony before the Grand Jury and in any subsequent judicial proceedings resulting from Hasman’s death, the prosecutor would accept a plea of guilty to one count of manslaughter in the second degree in satisfaction of all counts that might be brought against him in the forthcoming indictment and would recommend the imposition of sentence to an indeterminate term with a maximum of 10 years, even though manslaughter, second degree, was punishable by an indeterminate sentence with a maximum as high as 15 years. A conference then took place in chambers between the prosecutor, defense counsel and the County Judge during which the Judge stated that if defendant testified truthfully he would not consider a sentence with a greater maximum than 10 years.

Defendant McConnell appeared before the Grand Jury the next day, waived immunity and testified. As a result the Grand Jury returned indictments against him, Carroll, Rock and Bridges, defendant and Carroll being charged with murder, second degree, false imprisonment, first degree, and possession of a weapon in the fourth degree, and Rock and Bridges being charged with manslaughter, second degree, and false imprisonment, first degree.

Rock and Bridges chose not to go to trial as a result, according to the affidavit of the Assistant District Attorney in charge, of McConnell’s availability to the District Attorney as a witness against them. They pleaded guilty to criminally negligent homicide and each was sentenced to one year in prison. A few days before Carroll’s trial was to begin McConnell appeared before the County Judge. The prosecutor recounted the plea bargain previously discussed including the agreement that his office would recommend a sentence of 10 years maximum with no minimum in disposition of McConnell’s plea. The Judge acknowledged his recollection of the prior discussion and indicated his concurrence with the agreement. His statement on the record was "And based upon what I know of this at this point, unless something comes to my attention that changes it, in the Probation report I am inclined to agree with the recommendation of the District Attorney’s office in this case.” During the course of taking defendant’s plea the Judge asked defendant to admit "that you recklessly caused the death of Ricky Hasman by punching, beating or kicking and in that manner eventually Mr. Hasman died” and, receiving an affirmative response, accepted McConnell’s plea to manslaughter, second degree, in satisfaction of the entire indictment against him.

A few days later defendant testified for the prosecution at the trial of defendant Carroll, over which the same County Judge presided. Carroll was found guilty of manslaughter, second degree, and ultimately was sentenced to an indeterminate term of not exceeding 15 years. When McConnell appeared for sentencing thereafter, the prosecutor recommended the agreed indeterminate term with a 10-year maximum. The County Judge, however, though stating explicitly that "There is nothing in that, that presentence report that I didn’t know”, refused to go along with the plea bargain and imposed a sentence of 15 years maximum. The basis of his refusal was that he had learned during the Carroll trial that McConnell "had stabbed the person” which he had not previously known and that "I agreed providing it was based upon what I knew at that time.” He acknowledged that McConnell had "put yourself in a position by testifying before the Grand Jury so that I can’t allow you to withdraw your plea because you have incriminated yourself’, but said that he felt compelled by his duty as a Judge not to follow the District Attorney’s recommendation. Defendant’s motion to vacate the sentence and for imposition of a 10-year maximum sentence was thereafter denied by the County Judge and that denial was unanimously affirmed by the Appellate Division in a memorandum which noted that it would vacate the sentence and permit withdrawal of the plea but that on oral argument defendant’s attorney had expressly stated that he did not seek such relief.

Defendant argues that he is entitled to specific performance of the plea bargain because he lived up to his agreement and the only reservation made by the County Judge was with respect to new matter brought to his attention in the probation report. While we agree with defendant’s conclusion, we do not accept his entire premise. In our view, defendant is entitled to specific performance because by living up to his part of the bargain defendant has put himself, as the County Judge acknowledged, in a no-return position and because the additional information which came to the Judge’s attention after the bargain was struck was not of such a nature as to warrant refusal to go along with the bargain which defendant had fully performed.

The need for and policies behind the plea bargaining process are sufficiently detailed in our prior decisions in People v Frederick (45 NY2d 520) and People v Selikoff (35 NY2d 227) and the decisions of the United States Supreme Court to which those cases refer, and need not be again set forth here. Those decisions spell out the importance of a full record so that defendant will understand that he can rely on what is stated on the record, within the limitations stated, and cannot under any but the most unusual circumstances rely on anything not stated on the record no matter what discussion there has been. Selikoff also makes clear that contract law rules will not be applied to plea negotiations and that any sentence promise is conditioned, as a matter of law and of the strong public policy of rehabilitating offenders, protecting society, and deterring other potential offenders, upon the appropriateness of the sentence in the light of information subsequently received by the sentencing Judge from the presentence report or other reliable source. Finally, both Selikoff and Frederick establish that in most instances when a guilty plea has been induced by an unfulfilled promise either the plea must be vacated or the promise honored, but that the choice rests in the discretion of the sentencing court.

It is, however, a sound judicial discretion that is to be exercised by the sentencing Judge, who must take into consideration in making his determination the integrity of the criminal justice system in relation to the plea bargaining process as well as in relation to its protective, retributive, deterrent and rehabilitative aspects. This is because a defendant who pleads guilty waives a number of valuable constitutional rights in order to obtain reasonable assurance of certainty rather than gamble the possibility of a not guilty verdict against the heavier punishment, the greater anxiety and, in some cases at least, the greater expense, involved in a full trial. Obviously, to the extent that the assurance of certainty is diluted the bargaining process becomes less acceptable to defendants, to the detriment of the criminal justice system as a whole. Rarely, if ever, therefore, will it be permissible, as was done here, to refuse both to honor the promise and to vacate the plea taken. Thus, the Appellate Division was correct in offering to vacate defendant’s plea, but in our view under the circumstances of this case that offer did not go far enough.

Defendant McConnell had, as the District Attorney recognized, lived up to his side of the bargain. By his testimony before the Grand Jury he made possible his own indictment and the indictment of his three codefendants, and was an important factor in both the guilty plea of two of the co-defendants and in the conviction after trial of the third. A defendant who has not similarly changed his position will generally be entitled to no more than the vacation of his plea if the court concludes that it cannot adhere to the promise given, for the simple reason that vacating the plea restores him to the same position he was in before the plea was taken or agreed to, so long as the prosecutor is not permitted to use the plea or statements made in relation to its acceptance as admissions.

Neither the plea nor any statement made in its acceptance will normally be as extensive an exposition of the facts and circumstances of a crime and of the defendant’s part in it as will be the testimony given before the Grand Jury and under examination and cross-examination during a resulting criminal trial. As the County Judge acknowledged, a defendant who has not only waived his right to trial but also his privilege against self incrimination and has testified extensively about the case cannot be similarly restored to status quo ante. To proscribe the prosecutor’s use of such a defendant’s testimony in a trial of the indictment against him cannot, with the possible exception of a case turning solely on defendant’s testimony, be a sufficient remedy against a prosecutor armed with the knowledge that such prior testimony will have given him (see Note, 11 Amer Crim L Rev 771, 793-794).

In Selikoff we recognized the possibility that specific performance of the promise might be the only alternative which in justice could be applied (35 NY2d, at p 239) and in Matter of Chaipis v State Liq. Auth. (44 NY2d 57), with respect to a defendant who, like McConnell in the present case, had testified before a "special” Grand Jury and before police department hearing boards about corruption in the police department, noted that "failure to enforce the promise might do substantial injustice, not only to the defendant but to the public which is entitled to have the benefit of future co-operation” (44 NY2d, at p 65), and that "in many instances, as in this case, merely vacating the plea would not make the defendant whole again. Permitting defendant to proceed to trial is a satisfactory remedy when, by pleading guilty, the defendant has given up nothing but his right to trial. But where the defendant not only waives his right to trial, but performs other services for the prosecutor as well, services that involve considerable risk or sacriñce, merely undoing the plea is small compensation, if any.” (Ibid.; emphasis supplied.)

Chaipis involved a promise by a Special Prosecutor that defendant’s co-operation would be brought to the attention of the State Liquor Authority with a view towards preserving defendant’s liquor license despite his involvement in promoting prostitution. Notwithstanding the fact that the prosecutor had interceded on defendant’s behalf with the authority, the latter agency canceled the license without indicating, except perfunctorily, the consideration, if any, it had given to defendant’s co-operation. We reversed with directions to remand for reconsideration by the authority noting that while the final decision was to be made by it, both the Special Prosecutor and the authority were agents of the State and that the State had an obligation to fulfill its commitment, promise or representation, in the absence of sufficient countervailing reason (see, also, People v De Wolfe, 36 AD2d 618).

Defendant argues that the County Judge conditioned his concurrence only on what the probation report showed and could not impose a heavier sentence on the basis of information obtained outside that report. It is* however, the substance of the believable information received rather than the channel through which it comes to the court which should guide him in the decision whether to honor the promise. Here the case for specific performance is enhanced by the relative insignificance of the additional information which came to the County Judge’s attention. The justification advanced was that the Judge did not know McConnell had stabbed Hasman, but the sentencing minutes also show that the Judge had reviewed the trial minutes and found no testimony concerning any stab wound in Hasman’s back from which he concluded that McConnell missed. Use of a knife adds little to the heinousness of taking Hasman’s life by beating, punching or kicking, especially when one recalls that it followed an orgy of drink and drugs. The more so is that true if the fact was that McConnell thought he had used a knife but had not, or had in fact tried to do so but missed.

In holding McConnell entitled to specific performance of the plea bargain, we do so as a matter of essential fairness, rather than as a matter of constitutional obligation, recognizing that a promise made by a State official authorized to do so and acted upon by a defendant in a criminal matter to his detriment is not lightly to be disregarded (see Westen & Westin, A Constitutional Law of Remedies for Broken Plea Bargains, 66 Cal L Rev 471, 512, 518-521, 536; Comment, 9 Conn L Rev 483, 493; Note, 13 Wake Forest L Rev 842, 846, 854; Note, 11 Amer Crim L Rev 771, 790-792). Of importance also is the detrimental effect on the criminal justice system that will result should it come to be believed that the State can renege on its plea bargains with impunity notwithstanding defendant’s performance. Finally to be noted is the fact that specific performance rather than vacation of the plea works to the benefit of the State in those cases in which the staleness of the indictment would make it difficult if not impossible for the prosecution to obtain a conviction (see People v Esposito, 32 NY2d 921, as explained in People v Selikoff, 35 NY2d 227, 239-240, supra; People v Parra, 57 AD2d 964; People v Johnson, 48 AD2d 643; People v Craig, 41 AD2d 932). If the State can hold a defendant to an agreed sentence rather than allow vacation of the plea when it would otherwise be prejudiced, a defendant in the converse position may be entitled to no less.

Accordingly, the order of the Appellate Division should be reversed and the casé remitted to Onondaga County Court for resentence to an indeterminate term with a maximum of 10 years in accordance with defendant’s plea.

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

Order reversed, etc.


source: Caselaw Access Project

author: Meyer, J.

license: Public Domain

text:
    In the Matter of RLM Transportation Corp., Appellant, v Director of Finance of the City of New York et al., Respondents.
    Argued January 11, 1980;
    decided February 20, 1980

      POINTS OF COUNSEL

      James F. Leopold for appellant.
    I. Petitioner-appellant is exempt from the excise tax imposed under section QQ46-2.0 of the Administrative Code of the City of New York because it is exclusively engaged in the transportation of children to and from schools. II. Section QQ24-2.0 of the Administrative Code of the City of New York is unconstitutional since it fails to comply with the due process requirements of the Fourteenth Amendment. (Cline v Frink Dairy Co., 274 US 445; Pacific Tel. Co. v Seattle, 291 US 300; Lane v Johnson, 283 NY 244; People v Klufus, 1 Misc 2d 828, 2 AD2d 958; Matter of Barbara Homes v Michaelis, 14 Misc 2d 620.)

      Allen G. Schwartz, Corporation Counsel (Arnold Fox and Gale Zareko of counsel), for respondents.
    I. Petitioner, in the business of operating omnibuses with a carrying capacity of more than seven persons used exclusively in the transportation of children to and from schools under contract pursuant to the Education Law and not subject to the supervision of the Department of Public Service, was subject to the city’s utility tax. (Parochial Bus System v Lewisohn, 43 AD2d 815, 35 NY2d 938; Children’s Bus Serv. v City of New York, 190 Misc 161, 272 App Div 1058, 273 App Div 773.) II. Section QQ46-2.0 of the New York City Utility Tax Law is not unconstitutional for vagueness. (Riggs v Palmer, 115 NY 506; Flynn v Prudential Ins. Co. of Amer., 207 NY 315; Caesar v Bernard, 156 App Div 724, 209 NY 570; Matter of Farrell v Board of Health of City of Oswego, 243 App Div 332; Matter of Westchester County S. P. C. A. v Mengel, 266 App Div 151, 292 NY 121; Goldstein v City of Long Beach, 28 AD2d 558.)
   OPINION OF THE COURT

Meyer, J.

This appeal raises the question whether an operator of vans with a carrying capacity of more than seven persons is subject to the tax on gross operating income imposed by subdivision a of section QQ46-2.0 of the Administrative Code of the City of New York. A deficiency having been assessed against petitioner, a hearing was held before a hearing officer of the Director of Finance and Finance Administration, who found that petitioner’s vans were used exclusively to transport handicapped . schoolchildren but nonetheless determined a deficiency of $6,474.06 against petitioner. An article 78 review having been initiated by petitioner and transferred to the Appellate Division, that court unanimously confirmed the deficiency determination, citing Parochial Bus System v Lewisohn (35 NY2d 938), but also granted petitioner leave to appeal to this court. We affirm the judgment of the Appellate Division.

As originally enacted by Local Law No. 104 of the Local Laws of 1939 that portion of the section which is now subdivision a of section QQ46-2.0 imposed a tax of 1% of gross operating income upon "vendors of utility services”, a category inclusive of omnibus operators, "except that as to persons engaged in the business of operating omnibuses with a carrying capacity of more than seven persons other than omnibuses used exclusively for the transportation of children to and from schools operated under contracts made pursuant to the provisions of the education law, and not subject to the jurisdiction of either division of the department of public services, the rate shall be three percentum of its gross operating income” (emphasis supplied).

Clear from that language is the fact that exclusive school bus use did not exempt from the tax; it simply reduced the rate. Amendments over the years have changed the figures so that the 1% figure in the original enactment is now 2.35% and the 3% figure is now 1.17%, but nothing in those amendments suggests an intent to exempt school bus operators not previously exempt. Unfortunately the less than careful draftsmanship, on which we commented in Parochial Bus System v Lewisohn (supra) resulted in the change of the figures only and not of the language of the section.

With the reversal of the numbers a reading of the present wording without relation to prior versions of the provision makes it appear that the 2.35% rate applies to vendors of utility services "except” operators of omnibuses capable of carrying seven persons "other than” those operated exclusively as school buses, as to whom the rate is 1.17%. Literally read the provision in its present form could mean either that the 2.35% rather than the 1.17% rate applied to school bus operators or that no rate was fixed by the section for such operators. The latter construction is inconsistent with the prior history of the section, and the former is inconsistent with subdivision (a) of section 1201 of the Tax Law which, in authorizing the city to impose the tax, expressly provides that "as to persons engaged in the business of operating omnibuses with a carrying capacity of more than seven persons, whether or not such persons are subject to the supervision of the state department of public service, the rate shall not be in excess of’ 1.17%.

While "other than” is normally synonymous with "except” (Matter of Nelson, 152 Misc 245, 250), the effect of so reading the provision would be to tax school bus operators at the higher (2.35%) rate were it not for subdivision (a) of section 1201 of the Tax Law. However, a provision worded as the section under consideration ("except * * * other than”) need not be read as an exception out of an exception when the context or other background indicates otherwise (Jenney v Brook [1844], 6 QB 323, 338). Here, as was clearly held in Children’s Bus Serv. v City of New York (190 Misc 161, mod 272 App Div 1058, mot for lv to app den 273 App Div 773), the section as originally enacted did not exempt exclusive school bus operators, nor, as our somewhat cryptic dictum in the Parochial Bus case indicated, did the subsequent amendments. Read against its history the section is clear, not vague, and does not avail petitioner.

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

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

Judgment affirmed.

       The modification was on a point other than the exemption issue. On that issue the Appellate Division affirmed.


author: Wachtler, J.

text:
    In the Matter of Town of Islip, Appellant-Respondent, Relative to Acquiring Title to Real Property Situated in the Hamlet of Sayville. Joseph Mascioli et al., Respondents-Appellants.
    Argued January 9, 1980;
    decided February 12, 1980

      POINTS OF COUNSEL

      Francis G. Caldeira, Town Attorney (William J. Kent of counsel), for appellant-respondent.
    I. No evidence was presented to sustain a finding by the court that the zoning classification was unconstitutional. (Matter of National Merritt v Weist, 41 NY2d 438; Matter of Grimpel Assoc. v Cohalan, 41 NY2d 431; Lusk v Town of Eastchester, 60 AD2d 645; Stilbell Realty Corp. v City of New York, 54 AD2d 962.) II. The properties highest and best use must be restricted by its zoning classification. (Capobianco v Town of North Hempstead, 21 Misc 2d 32; Plymouth Bldrs. v Village of Lindenhurst, 284 App Div 895; Gullo v Village of Lindenhurst, 16 Misc 2d 761.)

      Edward Flower for respondents-appellants.
    I. The existing zoning may be disregarded and an increment allowed for probability of change of zone where there is a finding that the zoning ordinance, if literally applied, results in an arbitrary and unreasonable restraint on the use of the property — that is, absent the condemnation, the property owner could have succeeded in an action for a declaratory judgment. (Matter of Grimpel Assoc. v Cohalan, 41 NY2d 431.) II. Sufficient evidence was adduced upon the trial record to sustain a finding by the court that the AA Residence zoning classification as applied to the subject property was unconstitutional and deprived the claimants of any reasonable use of their property and that the claimants would be successful in obtaining a zoning change through a declaratory judgment action. (Matter of Grimpel Assoc. v Cohalan, 41 NY2d 431.) III. The immediate institution of condemnation proceedings, linked with the denial of claimants’ zoning application, effectively prevented claimants from pursuing an action for declaratory judgment. Claimants were thus entitled to rely upon the court’s ability in the condemnation proceeding to examine the same issues as would arise upon the declaratory judgment action. IV. The courts below correctly found that claimants would have been successful in challenging the residential zoning of the subject property in a declaratory judgment action, and that the AA Residence zoning classification as applied to the subject property was unconstitutional in that it deprived claimants of any reasonable use of their property. The court no longer was required to consider the highest and best use of the property as restricted by that residential zoning category. V. Although the court cannot decree in a declaratory judgment action that the property be zoned in a particular manner, the court is free to assume for purpose of determining highest and best use that public officials will act in an appropriate manner pursuant to the judgment which may be obtained in a declaratory judgment action and in a manner responsive to the directions of the court. (Kane v Walsh, 295 NY 198; People ex rel. Lieberman v Van De Carr, 175 NY 440, 199 US 552; Matter of Mobil Oil Corp. v Milton, 72 Misc 2d 505; People v Ryan, 230 App Div 252.) VI. Given that the respondents-appellants are entitled to any increment for "change of zone,” and given that the only evidence adduced on the issue of an increment was that elicited by the claimants of $2 per square foot, the courts below erred in disregarding such evidence and arbitrarily setting a value for the increment of 40 cents per square foot. (Kurnick v State of New York, 54 AD2d 1098; Ridgeway Assoc. v State of New York, 32 AD2d 851; Lawyers Co-op. Pub. Co. v State of New York, 47 AD2d 122, 39 NY2d 760; Ley v

      State of New York, 28 AD2d 943, 25 NY2d 876; George’s Bake Shop v State of New York, 21 AD2d 423.) VII. The court below erred in dismissing claimants’ cross appeal on the ground that claimants had provided an insufficient appendix. The appendix contained those items and papers not provided in the full record submitted by petitioner, thereby completing the record. (Howe Ave. Nursing Home v Nafus, 54 AD2d 686; E. P. Reynolds, Inc. v Nager Elec. Co., 17 NY2d 51.)
   OPINION OF THE COURT

Wachtler, J.

In a condemnation case, where the Town of Islip acquired land which at the time of taking was undeveloped but had been restrictively zoned residential by the town, the Supreme Court, after trial, found the property "unsuitable for residence use” and awarded the claimants, its former owners, an increment above, and in addition to, its residential value. The Appellate Division affirmed, with one dissent.

The town and the claimants have cross-appealed to this court. There is no dispute over that portion of the award which represents the residential value of the property as determined by the trial court. Only the increment is in issue. The town urges that the claimants are not entitled to any increment, while the claimants argue that the amount of the increment should be larger than the court allowed.'

Both appeals have been taken in reliance on CPLR 5601 (subd [a], par [i]) which permits an appeal as of right from an Appellate Division order of affirmance when there is a dissent on a question of law in favor of the party taking the appeal. In this case, the dissenter at the Appellate Division, took the position that there was no basis in the record for awarding the claimants any increment. This dissent was favorable only to the town, and the claimants’ cross appeal must be dismissed. Thus we are not concerned with the amount of the increment. The only question properly before us is whether on this record it was error, as the town contends, for the court to grant any increment above the residential value of the property.

In 1973 the claimants owned a parcel of undeveloped land located in the Hamlet of Sayville. The property is slightly larger than an acre and is completely surrounded by public thoroughfares. It is bounded on the south by Montauk Highway, on the north by Old Montauk Highway, on the west by Broadway Avenue and on the east by Old Broadway. The property is long and narrow and irregular in shape. It runs in a straight line along the south boundary for over 500 feet, curves along the northern boundary to a maximum depth of approximately 100 feet, narrowing at each end to a depth of about 30 feet on the west and 40 feet on the east. The zoning in the area includes mixed residential and business uses. Nearby there are restaurants, small businesses, professional offices and residences along the highways which converge on the claimants’ property. The plot belonging to the claimants, however, was zoned residential.

In late 1973 claimants applied to the town for a change of zone from Residential AA to Business I in order to erect a small office building on the site. However, the town planning board recommended that this application be denied and that the town acquire the property in condemnation. When title passed to the town by condemnation in 1974, the property was still zoned residential. The town then contended that compensation to the owners should be limited to the residential value of the property.

At the trial held on the compensation issue, claimants’ experts testified that the property was valuable and best suited for commercial development and that its peculiar location, size and shape made it unsuitable for residential use with little or no market value if offered for sale only as a residential plot. In their opinion these factors, together with the pattern of zoning and development in the area, created a reasonable probability that the property would be rezoned and that they should therefore be awarded an increment above the residential value. They also submitted evidence and estimates as to the market value of the property in light of the potential for rezoning.

The town, on the other hand, introduced proof that in recent years it had consistently refused to "downzone” other properties in the area. It also submitted a plan for residential development of the property which, according to its experts, would satisfy the residential zoning requirements. Thus in the opinion of its experts there was no reasonable probability of a change in zone, and their estimates were limited to the residential value of the property.

The court found that the property located on a small "semieliptical” shaped "island” which could only accommodate homes of a "limited size * * * with little, if any, rear yards” surrounded "on all sides by roads” two of which were main highways, was "unsuitable for residence use”. "This fact” the court noted, "was readily admitted by the supervisor of the town, who, in voting to deny claimants’ application for rezoning just prior to the instant application to condemn, stated: T would not want to raise my kids there though.’ ” The court also found that there was no reasonable probability that the town would have voluntarily rezoned the property upon application, but that the claimants might have been able to obtain the same relief in a court action on the ground that the residential zoning deprived them of "the reasonable use of the property”. Accordingly the court awarded the claimants an increment above the residential value of the property. As noted, the Appellate Division affirmed the findings and determination of the trial court.

An owner whose property has been taken in condemnation is entitled to just compensation (US Const, 5th Amdt; NY Const, art I, § 7, subd [a]). The measure generally is market value at the time of appropriation, that is, the price a willing buyer would have paid a willing seller for the property (County of Erie v Fridenberg, 221 NY 389; Matter of Board of Water Supply of City of N. Y., 277 NY 452; Keator v State of New York, 23 NY2d 337, 339). This appraisal should be based on the highest and best use of the property even though the owner may not have been utilizing the property to its fullest potential when it was taken by the public authority (Matter of County of Suffolk [Firester], 37 NY2d 649, 652; Keator v State of New York, supra, at p 339).

Ordinarily the potential uses the court may consider in determining value are limited to those uses permitted by the zoning regulations at the time of taking (4 Nichols, Eminent Domain [3d ed], § 12.322). When, however, there is a reasonable probability of rezoning, some adjustment must be made to the value of the property as zoned. An increment should be added to this amount if there is a reasonable probability of rezoning to a less restrictive category (Masten v State of New York, 11 AD2d 370, 371, affd 9 NY2d 796; Genesee Val. Union Trust Co. v State of New York, 9 NY2d 795; cf. Matter of County of Nassau [Cohen], 39 NY2d 574). Conversely, the value of the property as zoned should be reduced or subject to a "discount” when the probability is that rezoning will result in the loss of a valuable use (Matter of County of Nassau [Cohen], supra). The theory is that a knowledgeable buyer, recognizing the potential changes in the available uses would make similar adjustments in valuing the property (Masten v State of New York, supra; 4 Nichols, op. cit., § 12.322[1]).

Thus the reasonable probability of rezoning is a relevant factor in determining the market value of property taken in condemnation. It is most frequently encountered in cases where it is anticipated that the municipality would voluntarily rezone without any prompting from the courts (see Zoning as a Factor in Determination of Damages in Eminent Domain, Ann., 9 ALR3d 291, 309-322). Here, however, it was found that a court action would be necessary to remove the residential zoning restrictions. That prospect may, of course, seem less attractive than the probability that the town might grant an application to change the zone. Nevertheless, to a knowledgeable buyer, the probable invalidity of zoning restrictions, which would otherwise prohibit valuable uses, should enhance the market value of the property to some extent. Thus if it was demonstrated that there was a reasonable probability that a challenge to the zoning regulations could succeed in court, it would be appropriate to grant the claimants some increment above the residential value.

The town concedes that the court was "within its rights” when it considered whether the zoning restrictions would have been vulnerable to a constitutional challenge in a declaratory judgment action. It argues, however, that in determining whether "such an action would have been successful * * * [the court] must make such findings of fact as would have been made by a court actually hearing the declaratory judgment.” In this case it claims that the evidence presented was insufficient "to sustain a finding by the court that the zoning classification was unconstitutional” as applied.

In Matter of Grimpel Assoc. v Cohalan (41 NY2d 431), a declaratory judgment case, the owner claimed that Islip’s Residential AA zoning regulation was unconstitutional as applied to its property. There we noted (at pp 432-433) that we were "presented with affirmed findings of fact that the property was not suitable for residential use” and that these findings were supported by evidence showing that the property as zoned would consist of an " 'island’ surrounded by business operations and major vehicular thoroughfares”, that the residential zoning classification drastically diminished the value of the property and that rezoning would not have a deleterious effect on residential properties in the area. This was held to be sufficient to sustain the owner’s burden, and the determination made by the lower courts, that "the zoning restrictions deprived the owner of all reasonable use of the property” and were therefore unconstitutional as applied (Matter of Grimpel Assoc. v Cohalan, supra, at p 432).

In the case now before us we are also confronted with affirmed findings of fact that the property is "unsuitable for residence use”, supported by evidence showing that the property is a small island surrounded by public highways, that it has commercial value but little or no value as a residential plot, and that a change in zone would not be out of harmony with the surrounding area. The town notes, however, that there was also proof, uncontradicted, that it was possible to place two houses on the property in apparent conformity with the residential zoning requirements. Although this is true, it does not indicate any defect in the court’s determination or the sufficiency of the evidence supporting the determination. It is perhaps physically possible to construct houses on any site. But that does not mean that every site is suitable for residential development.

In sum the similarity of the evidence in this case to the proof in Grimpel is sufficient to show that a constitutional challenge to this same ordinance, as applied to similarly situated property would have, at least, a reasonable probability of success in court. Thus it was not error to award the claimants an increment above the value of the property as zoned.

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

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

Claimants’ cross appeal dismissed, without costs.

On petitioner’s appeal: Order affirmed, with costs.

      .  We note that the claimants also cross-appealed to the Appellate Division and that the Appellate Division dismissed the cross appeal for failure to perfect in accordance with that court’s rules. For the purposes of our jurisdiction the order of dismissal is treated as an affirmance and is therefore also subject to the requirements of CPLR 5601 (subd [a], par [i]) (see Cohen and Karger, Powers of the New York Court of Appeals, § 51). And, we note, the Appellate Division dissenter agreed that claimants’ cross appeal should be dismissed.

      . We recognize that in some condemnation cases it has been held that the property should be valued at its highest and best use without any regard to zoning restrictions when the former owners have proven the actual invalidity of the zoning regulations in effect at the time of taking (see, e.g., Business Ventures v Iowa City, 234 NW2d 376 [Iowa]). In this case, however, the claimants only sought an increment for the probability of a change in zone.


author: Jones, J.

text:
    The People of the State of New York, Respondent, v Cynthia Scarborough, Appellant. The People of the State of New York, Respondent, v Calvin Codrington, Appellant.
    Argued January 3,1980;
    decided February 12, 1980

      POINTS OF COUNSEL

      Nancy S. Hobbs and William E. Hellerstein for Cynthia Scarborough, appellant.
    I. The evidence at trial was insufficient to prove that appellant knew that the substance she transferred to the undercover officer contained heroin and weighed one eighth of an ounce. (People v Reisman, 29 NY2d 278; People v Carelock, 58 AD2d 996; People v McCray, 57 AD2d 632; People v Hingerton, 26 NY2d 790; People v Tirado, 47 AD2d 193, 38 NY2d 955; People v Flack, 125 NY 324; People v Santiago, 45 AD2d 1041; People v Patello, 41 AD2d 954.) II. The trial court erred in refusing defense counsel’s timely request that the two lesser included offenses set forth in the indictment be submitted for jury consideration. (People v Asan, 22 NY2d 526; People v Malave, 21 NY2d 26; People v Mussenden, 308 NY 558; People v Johnson, 45 NY2d 546; People v Henderson, 41 NY2d 233; People v Schleiman, 197 NY 383; People v Law, 41 NY2d 307; People v Caldwell, 24 NY2d 797; People v Brown, 63 AD2d 836; People v Perrera, 40 AD2d 1023.)

      Julia Pamela Heit for Calvin Codrington, appellant.
    The trial court committed reversible error when it refused counsel’s timely request to charge the lesser inclusory counts of the indictment. (People v Reisman, 29 NY2d 278; People v Malave, 21 NY2d 26; People v Asan, 22 NY2d 526; People v Mussenden, 308 NY 558; People v Henderson, 41 NY2d 233; People v Shuman, 37 NY2d 302; People v Discala, 45 NY2d 38; People v Jenkins, 41 NY2d 307; People v Strong, 60 AD2d 792; People v Perez, 61 AD2d 817.)

      Robert M. Morgenthau, District Attorney (Joyce P. Adolfsen
      and Robert M. Pitler of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. (People v Reisman, 29 NY2d 278; People v Sierra, 45 NY2d 56; People v Tirado, 47 AD2d 193, 38 NY2d 955; People v Corrado, 22 NY2d 308; People v Carelock, 58 AD2d 996.) II. The trial court, recognizing that there was no reasonable view of the evidence to support the lesser included possessory counts of the indictment, properly refused defendant’s request to charge those counts. (People v Law, 41 NY2d 307; People v Henderson, 41 NY2d 233; People v Asan, 22 NY2d 526; People v Carr, 49 AD2d 656, 41 NY2d 847; People v Malave, 21 NY2d 26; People v Mussenden, 308 NY 558.)
   OPINION OF THE COURT

Jones, J.

These appeals, arising out of a narcotics transaction, require us to determine whether the trial court erred in refusing defendants’ request to submit counts of possession of a controlled substance as lesser included offenses of the charge of criminal sale. We conclude that no such submission was required when no rational basis appears in the record for rejection by the jury of that portion of the undercover officer-buyer’s testimony that would have established a drug sale but acceptance by the jury of so much of his testimony as would have supported a finding of possession only.

Each of defendants stands convicted of criminal sale of a controlled substance in the second degree in violation of subdivision 1 of section 220.41 of the Penal Law following trial on a joint indictment charging them with the criminal sale offense as well as with the crimes of criminal possession of a controlled substance in the third degree (Penal Law, § 220.16) and criminal possession of a controlled substance in the fifth degree (Penal Law, § 220.06).

The People’s case rested largely on the testimony of undercover Police Officer Hewitt, who testified that on June 9, 1976 he obtained a quantity of heroin from defendant Scarborough in exchange for $200 in the following manner: Expecting to consummate a purchase of the drug, which had previously been arranged, Hewitt entered a storefront bearing the name "Last Chance Shoe Shine Parlor” on the afternoon of the day in question where he found defendant Codrington, who was known to the officer. As he had approached the storefront he had observed defendant Scarborough seated with another girl outside the front of the store next door. Hewitt told Codrington that he wished to buy 20 bags of heroin, to which the latter assented. Hewitt then reminded Codrington that he had been promised "something from the last time”, and Codrington replied that he would give him 5, that the dope was not his but another’s and that if it were his he would give Hewitt 30. Thereupon Codrington walked to the door and called defendant Scarborough to come inside. As she entered Codrington went to a cabinet in the kitchen, took out a brown paper bag and gave it to the girl, directing her to give Hewitt 25 glassine envelopes. Codrington then returned to a conversation with another person in the premises, and Scarborough removed glassine envelopes from the bag, took $200 tendered by Hewitt and delivered the 25 envelopes to him, whereupon the undercover agent put the envelopes containing a substance later identified as more than one-eighth ounce of heroin in his pocket and left, calling out a farewell to Codrington.

Officer Hewitt’s testimony was corroborated in part by that of a back-up officer who had observed the movements of the undercover agent and of defendants from a vantage point in an apartment building across the street and by photographs which he had taken of them as each was outside, entering or exiting the storefront at the time of the events to which Hewitt testified.

Each defendant testified that he or she had been at or about the Last Chance Shoe Shine Parlor regularly during June, 1976 and possibly had been there on June 9; both however denied that they had been involved in the heroin transaction described by Hewitt. Codrington denied having called Scarborough into the storefront to make a sale, having sold heroin to Hewitt, having handed a brown paper bag containing heroin to Scarborough and having told Hewitt he would give him 30 envelopes of heroin if it had been his. When shown the glassine envelopes at the trial he testified that he had never before seen them or their contents. Scarborough for her part could not recall Codrington having handed a paper bag to her and denied that she had been told by the codefendant to give 25 envelopes to Hewitt, that she had given envelopes to him and that she had received $200 from him. She testified that the first time she had seen Hewitt was when he appeared as a witness at the trial.

Following the conclusion of the evidence the trial court submitted only the charge of criminal sale of a controlled substance to the jury and refused the defendants’ requests that the lesser charges of criminal possession in the third and fifth degrees alleged in the indictment also be submitted, stating that the transaction testified to "was either a sale or not” and that there was no evidence that defendants possessed the drugs for any period of time other than as part of the alleged sale. The Appellate Division rejected defendants’ claim that this was error and affirmed the judgments of conviction. We concur in that determination and disposition.

The standard for determining whether a lesser included offense — i.e., an offense, the commission of which is necessarily embraced in the commission of a crime of a higher degree (CPL 1.20, subd 37) — must be submitted to a jury is set forth in CPL 300.50. Subdivision 1 of that section provides, insofar as relevant: "In submitting a count of an indictment to the jury, the court in its discretion may, in addition to submitting the greatest offense which it is required to submit, submit in the alternative any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater. If there is no reasonable view of the evidence which would support such a finding, the court may not submit such lesser offense.” Subdivision 2 provides that if the court is authorized by subdivision 1 to submit a lesser included offense and is so requested by either party it must do so.

It is apparent under these statutory provisions that lesser included offenses are not to be submitted for consideration by the jury in reaching its verdict in every case (People v Discala, 45 NY2d 38, 42). There must exist "a reasonable view of the evidence” upon which might be predicated a conclusion that the defendant did in fact commit a lesser, but not the greater, offense; if there is no such reasonable view, a submission of lesser offenses is improper. The requirement of existence of a reasonable view of the evidence supporting a finding of commission of the lesser offense alone was introduced in the criminal procedural statute in 1970 (L 1970, ch 996, eff Sept. 1, 1971) and represented a substantial alteration in language from that which had appeared in sections 444 and 445 of the Code of Criminal Procedure from which it was derived. The previous statutes on their face had authorized a jury, without qualification or restriction, to find a defendant guilty of a lower degree or of a lesser included offense of the crime charged. As is apparent from the staff comments of the Temporary Commission on Revision of the Penal Law and Criminal Code which accompanied the 1970 legislation, however, enactment of present CPL 300.50, although linguistically different from its statutory predecessors, was intended merely to reflect current judicial interpretation of the prior statute and codified what was termed the "prevailing rule established in People v. Mussenden, 1955, 308 N. Y. 558, 562-563” (Commission Staff Comment to CPL 300.50). In Mussenden this court had articulated the principle that "the submission of a lesser degree or an included crime is justified only where there is some basis in the evidence for finding the accused innocent of the higher crime, and yet guilty of the lower one. * * * The trial court may not * * * permit the jury to choose between the crime charged and some lesser offense where the evidence essential to support a verdict of guilt of the latter necessarily proves guilt of the greater crime as well. With the record in that state, there is no basis in the evidence for differentiating between the several offenses and no warrant for submitting any but that charged in the indictment” (308 NY, p 563).

In cases decided since the adoption of CPL 300.50 we have continuously given effect to the explicit requirement of existence of a reasonable basis in the evidence for a finding of guilt of the lesser count and rejection of the greater count, pointing out by recital of the relevant proof how such a result might be reached by the jury. Examination of those cases, as well as cases decided before 1970 under the Mussenden precept, reveals the evolvement of a criterion which, when applied to the proof in a particular case, answers the inquiry whether a lesser included offense should be submitted to the jury — if, on the whole record, there is not some identifiable, rational basis on which the jury could reject a portion of the prosecution’s case which is indispensable to establishment of the higher crime and yet accept so much of the proof as would establish the lesser crime, then the lesser included offense may not be submitted.

Such a basis exists, for example, when the defendant by his own testimony denies only the ingredient of the criminal transaction which is a necessary component of the greater crime and either admits or does not deny the elements of the lesser offense. Thus, in People v Malave (21 NY2d 26), the court, in addition to noting "a considerable doubt as to the transactions” in consequence of the police officer’s testimony, observed that the defendant largely limited himself to denying that he had sold drugs to the identified purchaser and admitted that he had himself been a user of narcotics. The court found that ”[t]he jury might have taken this as, in some part at least, a denial of sale but an implicit admission of possession” (21 NY2d, p 30), and held that charges of possession as well as of sale should have been submitted to the jury. In People v Asan (22 NY2d 526) a defendant who denied ownership or production of a knife with which he claimed the stabbing victim had assaulted him was held to be entitled to submission of a count of second degree manslaughter (culpable negligence in use of the knife) as well as of murder first degree. In People v Freeman (22 NY2d 526) a defendant who denied having committed a theft (contending that the money had been voluntarily paid to him) and also denied ownership and use of the weapon by which the complainant had been injured was entitled to submission of lower counts of robbery and assault in a prosecution for robbery first degree and assault second degree predicated on proof of a robbery committed at knifepoint and of a slashing movement at the victim with the knife. In People v Johnson (45 NY2d 546) it was error to deny submission to the jury of a count of possession of a controlled substance in a narcotic sale prosecution case in which defendant gave testimony which tended to deny that he had made the sale but admitted possession.

Another example of a rational basis for the jury’s rejection only of proof which establishes the greater crime was demonstrated in People v Henderson (41 NY2d 233). In that case, in which defendant was charged with attempted burglary and the proof of his intent to commit a crime within the premises sought to be entered was wholly circumstantial, we held that the lesser crime of criminal trespass should have been submitted, inasmuch as the jury might have concluded that the requisite standard of proof on the question of intent to commit a crime had not been met, although that for unauthorized presence on the premises had been.

Still another illustration is to be found in People v Stanfield (36 NY2d 467), a homicide case in which the court concluded that there was a rational basis to sustain a finding of either of two states of mind of the defendant. On the evidence in the record the jury could have found either that the defendant perceived and consciously disregarded the risk of harm (supporting a conviction of manslaughter, second degree) or that the defendant negligently failed to perceive the risk (supporting a conviction for criminally negligent homicide).

Other circumstances suggest themselves as possibly presenting a rational ground for a jury’s disbelief of some, but not all, of the prosecution’s proof. If, as is most often so, the People’s case is a composite of several witnesses and perhaps exhibits, some segments of the evidence — and even some portions of a single witness’ testimony — may be impugned, cast in doubt or discredited by the introduction of contradictory proof or by disclosure on cross-examination of faulty memory, bias, lack of adequate vantage point for observation and the like. If the record demonstrates one of these or some other rational basis on which the jury might reasonably discredit the proof which would establish defendant’s commission of the greater crime, yet accept that of guilt of the lesser, then the statute compels submission of the lesser offense if requested.

Where however examination of the record discloses no identifiable basis on which a jury might reasonably differentiate between segments of the proof and "charging the lesser included offense would force the jury 'to resort to sheer speculation’ ”, the result is otherwise (People v Discala, 45 NY2d 38, 43, supra). As we said most recently in the Discala case: "[Fundamentally, the jury should not be permitted to choose between the crime charged and some lesser crime where the evidence essential to support a verdict of guilt of the lesser necessarily proves guilt of the greater crime as well [authorities omitted]” (45 NY2d, p 43). Thus, in People v Freeman (22 NY2d 526, supra), the robbery case in which the defendant contended payment had been voluntary, we found no error in the trial court’s refusal to submit a count of petit larceny, stating: "[U]pon no version of the facts could defendant be guilty of this crime and not guilty of a greater crime. Defendant either took the money by force, or complainant voluntarily paid him the money” (22 NY2d, p 532). Similarly, in People v Reisman (29 NY2d 278) we upheld the trial court’s refusal to submit a requested charge of possession of a dangerous drug in the fourth degree (for which proof of quantity was not relevant) in a prosecution for possession in the first degree (of which quantity was an element) in which the proof established that the defendant had claimed at an airline freight counter cartons containing 46 pounds of marihuana consigned to him. Rejecting the defendant’s assertion of error in the refusal of the submission of the lower count we said: "The weight of the contraband in the carton was uncontradicted. Moreover, the nature of the case and its circumstances depended entirely on a commercial-like shipment of the large quantity. The case could stand or fall on that proof and no other. Consequently, under no view of the facts, because there was no basis in any of the evidence, could the jury find the accused innocent of the higher crime and yet guilty of the misdemeanor which required no minimum quantity” (29 NY2d, p 287).

It may be acknowledged that some of the language employed in our opinions, if read literally, might be taken as calling for the submission of the lesser included offenses of possession in the present case. Examination ' of the actual determinations, as the foregoing analysis discloses, confirms that such a literal reading is not warranted. Thus, the preMussenden, pre-Criminal Procedure Law statement that "every possible hypothesis” but guilt of the higher crime must be excluded to eliminate submission of lesser included crimes (People v Moran, 246 NY 100, 103) might imply in consequence of the use of the word "hypothesis” the right of the jury to engage in a wholly arbitrary, even irrational, selection from the proof. The cases, however, have presented fact patterns in which there was a rational basis for a discriminating evaluation of the evidence (e.g., People v Johnson, 45 NY2d 546, supra; People v Henderson, 41 NY2d 233, supra; People v Malave, 21 NY2d 26, supra).

Similarly our recognition, now as in the past, of the jury’s freedom "to accept or reject part or all of the defense or prosecution’s evidence” (e.g., People v Henderson, 41 NY2d 233, 236, supra) has been based on an awareness that all of the proof on one side quite reasonably may not be accorded the same probative worth. Thus, as suggested above, one witness may be stronger than another, documentary proof may be more persuasive than oral testimony, there may be contradictory proof as to a portion but not all of the proof, cross-examination may effectively undermine a significant portion, although not all, of a witness’ testimony; in sum there may be a rational basis for sorting out proof. The principle, however, has never been applied to countenance selective dissection of the integrated testimony of a single witness as to whom credibility, or incredibility, could only be a constant factor.

The soundness of the rule which has evolved is underscored by consideration of the consequence of the acceptance of the proposition that there must be a charge down in every case in which any distillate of the total proof, however artificial or irrational, would support a conviction of the lesser but not the greater crime — that is, if the test were to be a literal "any view” of the evidence rather than a "reasonable view” of the evidence. The result would be that the spectrum of all theoretical lesser included offenses within the embrace of CPL 1.20 (subd 37) would have to be charged on request in each case within each family of criminal transactions, e.g., controlled substances, larceny, theft, assault, homicide, sex offenses. This would leave to the jury nearly absolute freedom in every prosecution to convict on any rung of the ladder of offenses in the same category and thus " 'to resort to sheer speculation’ ” as condemned in Discala (45 NY2d 38, 43, supra).

We proceed then to apply the standard discussed above to the proof in the case before us to determine whether submission of the possession counts requested by defendants was required by CPL 300.50. Thus, we inquire, is there any reasonable view of the evidence which would support a finding that defendants committed the crime of possession of a controlled substance but did not commit the crime of sale of a controlled substance? Examination of the record discloses that there is none. Proof to support any criminal conviction of either of these two defendants came only from the lips of undercover Officer Hewitt. There would be no rational explanation for accepting his testimony as to possession but disbelieving that with respect to sale. Cross-examination was indiscriminately ineffective; defendants’ denials embraced both crimes with equal persistence. To permit the jury selectively to have found possession but not sale would be to countenance its arbitrary sorting of the testimony of a single witness — as if, with scissors and paste, it might construct a wholly artificial line of testimony to support one crime while discarding the portions which it had seen fit to cut away. This record affords no basis in reason for any such arbitrary, selective determination of what is to be taken as credible and what to be rejected as incredible. As the Trial Judge aptly put it, there was either a sale or nothing. If the jury credited defendants’ denial of the transaction, they were entitled to an acquittal of any charges of drug offenses. Under such circumstances submission of the possession counts would have violated the statutory injunction —"If there is no reasonable view of the evidence which would support such a finding, the court may not submit such lesser offense” (CPL 300.50, subd 1).

Finally, our examination of the record has satisfied us that there is no substance to defendant Scarborough’s claim of insufficiency of proof on the issue of her knowledge of the weight or the nature of the contents of the glassine envelopes which she delivered to the buyer Hewitt (People v Reisman, 29 NY2d 278, supra).

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

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

In each case: Order affirmed.

      . Section 444 of the Code of Criminal Procedure insofar as relevant, provided: "Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime.” Section 445 of the Code of Criminal Procedure provided: "In all other cases, the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment.”

      . To the extent that the decision in People v Law (41 NY2d 307) may appear to be at variance, we decline to follow it.


author: Jasen, J.

text:
    Gerald Schaubman et al., Respondents, v Barbara Blum, as New York State Commissioner of Social Services, Appellant.
    Submitted January 9, 1980;
    decided February 12, 1980

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Tyrone Mark Powell and George D. Zuckerman of counsel), for appellant.
    In light of all the facts and circumstances of the instant case, the penalty of permanent disqualification from the Medicaid program imposed by the Department of Social Services against a provider convicted of a crime, was not so disproportionate to the offense as to be shocking to one’s sense of fairness thereby constituting an arbitrary and capricious determination or an abuse of discretion. (Matter of Ahsaf v Nyquist, 37 NY2d 182; Walkovszky v Carlton, 18 NY2d 414; People v Sherman, 133 NY 349; People v Miller, 31 Misc 2d 1067; People v Oser, 9 Misc 2d 585; Kostika v Cuomo, 41 NY2d 673; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Butterly & Green v Lomenzo, 36 NY2d 250; Matter of Nino v Yonkers City School Dist., 43 NY2d 865.)

      Jerome I. Sager for respondents.
    Stripped of all embellishments, Jarrett was convicted for offering to file a false instrument in the second degree. (Matter of Pell v Board of Educ., 34 NY2d 222.)
   OPINION OF THE COURT

Jasen, J.

The sole issue presented in this case is whether the penalty imposed by the Department of Social Services against the petitioners is so disproportionate to the offense as to mandate modification.

Petitioner Jarrett Drug Corporation is a registered pharmacy licensed to do business in the State of New York. Petitioner Gerald Schaubman, a pharmacist, is a principal of Jarrett Drug Corporation and is the corporation’s treasurer. On October 15, 1966, petitioner Schaubman, acting in his capacity as treasurer, applied on behalf of Jarrett Drug Corporation to participate in the Medical Assistance Program (Medicaid) as a provider of services. Thereafter, from 1966 to 1977, petitioners regularly provided services to beneficiaries of the program and received Medicaid funds in payment therefor.

In 1976, however, petitioner Schaubman, while filling a prescription for a Medicaid patient, substituted the generic equivalent for a brand name drug and submitted a false invoice requesting Medicaid reimbursement for the full price of the brand name drug, thereby obtaining $3.39 to which he was not entitled. For this unlawful act, petitioners were criminally charged with two counts of offering a false instrument for filing, one count of attempted petit larceny, one count of omitting to label drugs, or labeling them wrongly, and one count of petit larceny. On August 15, 1977, petitioner Jarrett Drug Corporation pleaded guilty in the Criminal Court of the City of New York to one count of offering a false instrument for filing in the second degree (Penal Law, § 175.30) and was sentenced to pay a fine.

When this fraudulent activity came to the attention of the Department of Social Services, the agency determined that petitioners had committed an "unacceptable practice” within the meaning of subdivision (a) of section 515.1 of the Regulations of the Department of Social Services (18 NYCRR 515.1 [a]) and promptly disqualified petitioners from further participation in the program. This determination was subsequently affirmed, after a hearing, by the appellant Commissioner of Social Services.

On July 31, 1978, petitioners commenced the instant CPLR article 78 proceeding to annul the determination of the Commissioner of Social Services. Upon transfer of the proceeding, a unanimous Appellate Division affirmed the finding that an "unacceptable practice” had been committed, but modified, on the law, the determination of the commissioner by reducing the penalty of permanent disqualification from participation in the Medicaid program imposed upon both petitioners to temporary disqualification for a period of one year. As so modified, the determination was affirmed. From this judgment the commissioner appeals. There should be a reversal.

Since the sole question presented on this appeal is whether the penalty imposed by the Department of Social Services is excessive, our review of the administrative penalty imposed is limited to a consideration of whether such penalty is " 'so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness.’ ” (Matter of Pell v Board of Educ., 34 NY2d 222, 233; see, e.g., Matter of 17 Cameron St. Rest. Corp. v New York State Liq. Auth., 48 NY2d 509; Matter of Purdy v Kreisberg, 47 NY2d 354, 360.) In this case, we do not believe that the penalty imposed was so disproportionate to the offense committed as to mandate modification.

It is argued that the penalty of permanent disqualification from the Medicaid program is disproportionate to the instant offense because the financial harm to petitioners which will result from the penalty far exceeds the amount of money fraudulently obtained. We find this argument unpersuasive. In Pell (34 NY2d, at p 235, supra), we noted that a wrongdoer who commits an offense involving moral turpitude cannot he insulated from a severe sanction merely because "small sums of money may be involved.” Indeed, in determining whether a given penalty is disproportionate in light of all the circumstances of the case, we stressed that the court must consider not only the harm actually caused by the incident in issue, but also the substantial public harm which might be caused by repeated violations and the deterrent effect which a substantial penalty might have on the individual violator and upon others who might be tempted to engage in similar misdeeds. (Matter of Pell v Board of Educ., 34 NY2d, at pp 234-235, supra.) Thus, this court cannot limit its inquiry to the question of whether the penalty assessed is excessive only insofar as it operates as a punishment for a single pharmacist who has committed a single act of fraud upon the Medicaid program. Rather, we must also consider the deterrent effect which such a penalty may have upon other providers of services to the medically indigent as well as the risk of harm to the Medicaid program and to the public.

It is beyond dispute that the people of this State have a strong interest in providing medical services to the needy. However, the public must be assured that the funds which have been set aside for this worthy purpose will not be fraudulently diverted into the hands of an untrustworthy provider of services. The Department of Social Services, as the agency charged with the responsibility of administering the Medicaid program, must be allowed broad discretion in fashioning administrative sanctions which can adequately protect this important public interest. (Cf. Kostika v Cuomo, 41 NY2d 673, 677; Matter of Butterly & Green v Lomenzo, 36 NY2d 250, 256.)

Where, as here, a provider of services has demonstrated through his conduct a willingness to defraud the people of the State of New York and the beneficiaries of the Medicaid system, the Department of Social Services should not be required to run the risk that he will do so again. A contrary holding would allow a provider of services to misappropriate public funds with impunity, confident that his misconduct will not deprive him of the benefits of participation in the program so long as small sums of money are involved. This result cannot be tolerated.

Moreover, we would note that the administrative penalty assessed in this case does not prevent petitioner Schaubman from continuing to practice as a pharmacist or petitioner Jarrett Drug Corporation from operating a pharmacy; it merely terminates the contractual relationship with the Department of Social Services which had allowed the petitioners to participate in the Medicaid program. As the courts of this State have previously noted, a provider of Medicaid services has no vested right to continued participation in the program; rather, such participation is a privilege which may, in proper circumstances, be revoked. (See Schwartzberg v Whalen, 66 AD2d 881.)

In our view, the revocation of this privilege in the instant case was an entirely proper administrative response undertaken to protect the public interest in the integrity of the Medicaid system and cannot be said, as a matter of law, to mandate modification.

Accordingly, the judgment of the Appellate Division should be reversed, with costs, and the determination of the Commissioner of Social Services reinstated.

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

Judgment reversed, etc.

      . The invoice submitted to Medicaid requested $9.09, the full price of the brand name drug. The generic equivalent actually supplied was valued at $5.70. Therefore, $3.39 was unlawfully obtained.

      . This regulation (18 NYCRR 515.1 [a]) provides: "Section 515.1 Definitions, (a) Unacceptable practice. An unacceptable practice is conduct which fails to meet standards of good professional medical care and treatment, hampers effective administration of the medical assistance program, disregards established policies, standards, fees and procedures, increases costs to the program without providing equivalent increases in benefits to the program or client, is inconsistent with program standards or regulations, exhibits an unwillingness to meet such standards or regulations, is a potential threat to public health or safety, constitutes fraud or otherwise compromises the purposes of the medical assistance program.”


author: Fuchsberg, J. Jasen and Jones, JJ.

text:
    Leslie Havas et al., Appellants, v Victory Paper Stock Co., Inc., Defendant and Third-Party Plaintiff-Respondent. Morgan Guaranty Trust Co., Third-Party Defendant-Respondent.
    Argued January 2, 1980;
    decided February 14, 1980

      POINTS OF COUNSEL

      Henry G. Miller and Lawrence T. D’Aloise, Jr., for appellants.
    I. Under the facts, defendant’s driver owed a duty of reasonable care to plaintiff which the jury found was breached. (Owen v Rochester-Penfield Bus Co., 304 NY 457; Schechter v Klanfer, 28 NY2d 228; Beardsley v State of New York, 57 AD2d 1061; Glanzer v Shepard, 233 NY 236; Marks v Nambil Realty Co., 245 NY 256; Wolf v City of New York, 39 NY2d 568; Bartkowiak v St. Adalbert’s R. C. Church Soc., 40 AD2d 306; Corcoran v Banner Super Market, 19 NY2d 425; Palsgraf v Long Is. R. R. Co., 248 NY 339.) II. There is ample evidence to support the jury’s factual finding that Victory through its driver Vionito was negligent. (Willis v Young Men’s Christian Assn. of Amsterdam, 28 NY2d 375; Poplar v Bourjois, Inc., 298 NY 62.)

      Robert L. Horkitz for defendant and third-party plaintiff-respondent.
    I. In the case at bar, the findings of fact are not reviewable by this honorable court. (People v Gruttola, 43 NY2d 116.) II. In the absence of any duty owed to plaintiffs-respondents, defendant-appellant cannot be liable herein. (Strasbourger v Leerburger, 233 NY 55.)

      Bertram W. Eisenberg for third-party defendant-respondent.
    I. The court below was correct in holding that no duty ran from defendant to plaintiff under the set of facts disclosed by the record. II. There was no negligent act or omission on the part of the truck driver that proximately contributed to the accident.
   OPINION OF THE COURT

Fuchsberg, J.

This is an appeal from an order of the Appellate Division which reversed on the law two judgments, one in favor of the plaintiff, Leslie Havas, against the defendant, Victory Paper Stock Company, and the other in favor of Victory, as third-party plaintiff, against Morgan Guaranty Trust Company, as third-party defendant. Both followed a trial by jury, which, besides passing on liability and damages, also apportioned the damages as between Victory and Morgan. The order of reversal also dismissed the complaint. Raised before us in the main are questions relating to the roles of Judge and jury in a negligence suit.

The facts are essentially undisputed. Havas’ employer, Morgan, had an ongoing arrangement with Victory for the latter to remove bales of wastepapers as they accumulated at the Morgan offices at Wall and Broad Streets in New York City. The bales were bulky. They would weigh as much as a thousand pounds each. The transfer from Morgan to Victory usually was effected by means of a hydraulic forklift which Morgan’s men, working under Havas’ supervision, would use to mechanically raise the bales from the sidewalk to the level of the platform of a Victory flatbed truck, a point at which the latter’s driver would assume control of their placement.

On the day of the accident, however, the lift was out of commission. Rather than send the truck back empty, Havas’ superior, over his objection, devised an ad hoc method of loading the truck. It required certain Morgan employees to position a 10-foot wooden ramp so that it bridged the gap between the sidewalk and the horizontal edge of the bed of the truck, which was three feet above ground level. The bottom of this ramp had no footings or other provision to prevent it from sliding; nor did the top of the ramp, though its lip overlapped the edge of the truck floor, have any built-in device by which it and the truck could be secured to one another. The unsecured and unfastened ramp was then used as a runway up which Morgan employees were manually to move the heavy bales to the truck platform, from which the Victory driver would add a pulling force exerted by means of a heavy iron hook with which he would spear the bales as they approached the top.

This modus operandi apparently was followed without untoward incident as to two bales. But the third turned out to be another matter. Whether due to the great weight of the particular bale or the steepness of the incline of the ramp up which it had to travel, the Morgan crew that was handling the sidewalk end of the operation was experiencing great difficulty in moving it. Noticing their predicament, Havas and another Morgan employee, both of whom happened to be in the vicinity but neither of whom had participated in manipulating the other bales, reacted spontaneously by coming to the assistance of the others. They did so by stepping onto the ramp and there adding their own manpower to the struggle to push the bale toward its intended destination. While engaged in these efforts, and at a time when they and the other Morgan employees had brought the bale to a point at which the Victory driver had already applied his hook to it, the unattached ramp slipped away from the truck and crashed to the ground along with Havas.

Since the articles of property which played some role in this episode — the ramp, the truck, the bale and the hook— were owned by or were in the control of either Victory or Morgan or both, and the only persons who figured in it were employees of either one or the other, conceptually any possible suit in negligence would have to be lodged against Morgan, Victory or possibly their employees. Presumably at least in part because a third-party suit ordinarily will not lie against one’s own employer or fellow servant (see Workers’ Compensation Law, §§ 11, 29, subd 6), plaintiff elected to bring its action against Victory alone, and it was that defendant, not inhibited by the bar of the Workers’ Compensation Law, who brought Morgan in as a third-party defendant. By its verdict, the jury found both liable and apportioned their culpability at 50% each.

In reversing and dismissing, the Appellate Division took the position that there was no duty of reasonable care owed by Victory to Havas and that, in any event, "there was no negligent act or omission on the part of Victory’s driver that proximately contributed to the accident” (66 AD2d, p 954). We disagree on both counts and hold that the Trial Judge properly sent the case to the jury.

It seems to us that the answers to both issues posed by the Appellate Division’s rationale — whether Victory owed a duty to the plaintiff and, if it did, whether, in the face of it, Victory failed to act in a reasonably prudent manner — turn largely on foreseeability. For, despite the broadening of tort liability concepts to reflect economic, social and political developments (see, e.g., Micaleff v Miehle Co., 39 NY2d 376, 386; Codling v Paglia, 32 NY2d 330, 340), in a case which raises such traditional negligence law queries as does the one before us the answers are still to be found in the principle so pungently phrased by Cardozo that "[t]he risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation” (Palsgraf v Long Is. R. R. Co., 248 NY 339, 344). Or, as it is spelled out more precisely in the English case that is the progenitor of the foreseeability principle, "[W]henever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to the circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger” (Heaven v Prender, 11 QBD 503, 509, Britt, MR [1883]).

Application of this formula to the events surrounding plaintiffs injury leaves little doubt but that the occurrence of the disaster that befell Havas or a similar consequence to someone else close by need hardly have been a surprise. The shortcomings of the method improvised to get the bales from Morgan to Victory were patent. The strain that the men would have to undergo to manually move weights of up to half a ton would compel them to exert a steadying downward counterforce on whatever surface they were then standing. The surface here could be the ramp. What is more, the ramp, 10 feet in over-all length and with one end raised 3 feet to reach up to the truck platform, would then have to have rested at an angle so steep that it formed a grade in excess of 30%. Above all, the ramp over whose surfaces this heaving and straining, this pushing and pulling, was tó take place was not anchored in place at either end.

True it is that plaintiff neither offered nor produced expert testimony on these matters. But these consisted exclusively of facts whose significance could be well divined by laymen. Therefore, bearing in mind that modern juries are not bereft of educated and intelligent persons who can be expected to apply their ordinary judgment and practical experience, expert testimony was not required. (McCormick, Evidence, § 13; see Salem v United States Lines Co., 370 US 31, commented on in Lambert & Joost, Comments on Recent Important Admiralty Cases, 29 NACCA LJ 292, 335.)

In identifying the broad principles by which the parties’ conduct was to be judged, the trial court was therefore “correct in indicating that, at the worst, it could be said that reasonable people would differ as to whether the risk of injury to the plaintiff was foreseeable (see Prosser, Torts [4th ed], § 37, p 206). But we are still called upon to say whether Victory bore such a relation to the circumstances as to saddle it, rather than or in addition to Morgan, with a duty to avoid the danger to be anticipated.

In this connection, we first observe that the parties have made our task easier by taking no exception to the instructions "that the accident * * * occurred during the process of loading the defendant Victory’s vehicle” and "that the act of loading a vehicle is to be considered by you as part of the normal use and operation of a vehicle.” As far as it went, this charge, of course, vitally charted the parties’ course (Martin v City of Cohoes, 37 NY2d 162).

However, there was much more. If the Victory driver did not formally consent, he at least acquiesced in the method employed to get the bales in his truck. The fact that the ramp was not secured to the truck and therefore could readily ride away from it was obvious. So was the precipitous incline it formed. When the ramp did come away, the driver was not merely waiting for the others to move the fateful bale, which was then resting partly on the truck and partly off, presumably at the very location from which the ramp dropped. There was testimony that at that time he was actually helping move the bale, pulling it with his hook, while the Morgan people were pushing it towards him. In short, the effort to move the bales was a combined one in which Victory and its driver and Morgan and its men joined affirmatively, thereby so commingling their efforts that it cannot be said as a matter of law that each participant did not owe a duty to avoid subjecting the others to unreasonable hazards.

In fact, as co-operators in what could be found to be an informal, or even tacit, arrangement to act in concert to achieve a common, though limited, objective (on Morgan’s part, to rid itself of the bales, and, on Victory’s, to pick up what it came for rather than to return empty-handed), Morgan and Victory may each be regarded as having had a voice in directing the conduct of the other (see Restatement, Torts 2d, § 491, Comment b; see, generally, Prosser, Joint Torts and Several Liability, 25 Cal L Rev 413). Indeed, the picture of Victory’s driver and the Morgan personnel at opposite ends of the ramp irresistibly calls up a comparison with the roughly analogous positions of members on the same team in a tug-of-war or persons on opposite sides of a seesaw; what one does invariably has a direct effect on the others.

This brings us to the question as to whether defendant breached this duty by negligence on its part. It was particularly appropriate to leave this issue to the jury, not only because of the idiosyncratic nature of most tort cases (Pound, Introduction to the Philosophy of Law [rev ed, 1954], p 71), or because there was room for a difference in view as to whether Victory’s conduct in the particular circumstances of this case did or did not evidence a lack of due care, but, perhaps above all, because, in the determination of issues revolving about the reasonableness of conduct, the values inherent in the jury system are rightfully believed an important instrument in the adjudicative process (see Fleming, Torts [3d ed, 1965], p 271; Weiner, Civil Jury Trial and the Law-Fact Distinction, 54 Cal L Rev 1867, 1887-1891, 1938).

For all these reasons, the order from which this appeal is taken should be reversed and the case remitted to the Appellate Division, Third Department, for review of the facts pursuant to CPLR 5613.

Jasen and Jones, JJ.

(dissenting). We are in agreement with the unanimous conclusion of the Appellate Division that as a matter of law there was no evidence in this record to support the jury’s finding of negligence. It is not enough that the accident occurred. Accordingly, we would affirm the order of the Appellate Division.

Chief Judge Cooke and Judges Gabrielli, Wachtler and Fuchsberg concur; Judges Jasen and Jones dissent and vote to affirm in a memorandum; Judge Meyer taking no part.

Order reversed, with costs, and the case remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein.

       Because the Appellate Division, in reversing on the law, did not find it necessary to treat with the defendant’s claim that plaintiff was contributorily negligent, we make no comment on that subject except to point to the ameliorative eye the law casts on the conduct of those who act in emergencies, or, as in Broderick v Cauldwell-Wingate Co. (301 NY 182) and Boerio v Haiss Motor Trucking Co. (7 AD2d 228), under the economic compulsion of an employer-employee relationship.