author: Per Curiam. Hancock, Jr., J.

text:
    City of New York et al., Appellants, v State of New York, Respondent.
    Argued August 29,1990;
    decided September 18, 1990

      POINTS OF COUNSEL

      Victor A. Kovner, Corporation Counsel (Joel Berger, Ronald P. Younkins and Peter Lehner of counsel), for appellants.

      Robert Abrams, Attorney-General (Dennis J. Saffran, O. Peter Sherwood and Harvey Golubock of counsel), for respondent.

      Richard M. Weinberg and Robert T. Perry for members of the Council of the City of New York, amici curiae.

      Asa D. Sokolow, Joseph Zuckerman, David Buchalter, Sanford Hausler and David A. Slossberg for Citizens Union of the City of New York, amicus curiae.

      Lydia Rocissano Marola for New York State Conference of Mayors and other Municipal Officials, amicus curiae.

      Raymond A. Fasano for Assemblyman Robert A. Straniere, amicus curiae.

   OPINION OF THE COURT

Per Curiam.

At issue on this appeal is the constitutionality of chapter 773 of the Laws of 1989 (as amended by L 1990, ch 17), a special law that prescribes a procedure for determining Staten Islanders’ interest in secession from New York City, and the basis on which they would wish such separation to be accomplished. We conclude that chapter 773 is not an "act in relation to the property, affairs or government” of New York City (NY Const, art IX, §2 [b] [2]) requiring a home rule message under the State Constitution.

Chapter 773 requires that, in the next general election, voters of the Borough of Staten Island, one of New York City’s five boroughs, be asked the following question: "Shall a charter commission to provide for the separation of the borough of Staten Island from the city of New York and for the establishment of the city of Staten Island be created?” If a majority answers yes, a commission composed only of Staten Island residents and legislators will be organized to draft a proposed charter and consider any subject it deems relevant to the organization of a new City of Staten Island. The law further specifies that, within roughly two years, this commission must submit a proposed charter to the Governor, the temporary President of the Senate, the Speaker of the Assembly and the President of the Borough of Staten Island, and must hold public hearings throughout Staten Island for at least six months thereafter.

The charter commission may, in its discretion, then submit to Staten Island voters the question whether to adopt the proposed charter and, if not, whether the commission should continue, in order to redraft a charter proposal. If Staten Island voters answer yes, the charter is "adopted,” and the commission must submit proposed legislation enabling Staten Island to separate from New York City. If they answer no, the commission continues briefly in order to consider an alternative proposed charter for the City of Staten Island; in the event of a second negative vote, the commission is to dissolve.

Chapter 773 further contemplates the appointment of three "advisory committees” with five members each, to study and report on the creation of school districts, civil service rights and retirement benefits, and tax and finance matters. These committees are also charged with responsibility for submitting proposed legislation to implement their recommendations. An additional commission of State legislators from Staten Island is to be organized by the charter commission to apportion any local legislative body established by the proposed charter.

All committees and commissions are to be named without input from the other boroughs of New York City, with a single exception. Appointment of one member of the civil service rights and retirements benefits committee is to be made on the recommendation of the Mayor of the City of New York. Thus, as chapter 773 has been designed and formulated, upon completion of the referenda, hearing and drafting processes, what the Legislature will have is the view of Staten Islanders as to whether they desire separation from New York City, and the basis on which they would see it accomplished.

Significantly, as was made explicit by later amendment to chapter 773, no act or proposal of the various Staten Island committees or commissions can have the force of law. The charter, or alternative charter, for the City of Staten Island can become law only if the Legislature enacts legislation enabling Staten Island to disengage and separate from the City of New York. The law specifically directs that until such time, "the borough of Staten Island shall remain a part of the city of New York.” (L 1990, ch 17.)

Upon New York City’s challenge to the constitutionality of chapter 773, Supreme Court granted the State’s cross motion for summary judgment and declared the special law constitutional, holding that the State has plenary power to change municipal boundaries without home rule constraints (NY Const, art IX, § 2 [a]). The Appellate Division affirmed, agreeing that the State’s plenary power to create and organize local governments makes municipal boundaries a matter of State concern, not subject to home rule. Two concurring Justices upheld the law because it was "advisory only” and therefore, without effect on the property, affairs or government of New York City.

We now affirm, but on different grounds. In particular, we expressly decline to decide as unnecessary and premature whether genuine secession legislation, if ever it were to come before the Legislature, would require a home rule message.

We preface our analysis by noting the familiar proposition that enactments of the Legislature, a co-equal branch of government, are presumed to be constitutional; those who challenge statutes bear a heavy burden of proving unconstitutionality beyond a reasonable doubt (see, e.g., Elmwood-Utica Houses v Buffalo Sewer Auth., 65 NY2d 489, 495). Appellant, the City of New York, has not satisfied that burden.

The City makes a plausible argument that chapter 773 is not "advisory only.” A State-sponsored referendum merely soliciting the interest of Staten Islanders in secession might, for example, be deemed advisory only, because by definition it has no effect on the property, affairs or government of New York City, and therefore outside the home rule requirement. Chapter 773, however, does more than that. It authorizes the commitment of public funds and other public resources, potentially extending over a period of several years, to conduct studies, hold hearings and submit legislation that would effectuate Staten Island’s separation from the City of New York if the Legislature ever passed such a law and the Governor ever signed it. Chapter 773 is in this respect more than "advisory only,” and is surely ripe for review (compare, Cuomo v Long Is. Light. Co., 71 NY2d 349).

That conclusion does not, however, answer the dispositive question whether the special law is an "act in relation to the property, affairs or government” of New York City requiring a home rule message under article IX, § 2 (b) (2) of the State Constitution. By their very nature, special laws ordinarily will have an effect on the subject locality. However, not every special law in and of itself requires a home rule message, as the effect may be at most incidental, not a direct impact on the property, affairs or government of that entity. "The intent of these provisions of the Constitution was to provide some measure of protection to a city from possible danger of ill-considered interference by the Legislature in its local affairs.” (City of New York v Village of Lawrence, 250 NY 429, 439; see also, Hyman, Home Rule in New York 1941-1965 Retrospect and Prospect, 15 Buffalo L Rev 335, 337-338.)

Here we discern no State interference in New York City property, affairs or government, and we therefore need not reach the next step of determining whether there is any substantial State interest in the matter (see, Adler v Deegan, 251 NY 467, 484 [Cardozo, Ch. J., concurring]). Chapter 773 does not authorize secession; it does not authorize the voters of Staten Island to decide the secession issue; it does not initiate secession, or commit the State to support it; it does not represent any relinquishment by the Legislature of any power it may have with respect to secession; and it in no way circumscribes whatever protections exist in the State Constitution home rule provision with respect to an act formally triggering secession.

Indeed, rather than any direct effect of chapter 773 on the property, affairs or government of New York City, the impact of the law as the City portrays it is either wholly speculative, or simply the anticipated response to Staten Island’s already publicized interest in secession. In the category of speculative, for example, are the City’s references to the loss of population, acreage and investment in Staten Island’s infrastructure, none of which could result from the present legislation. Likewise, any anticipated uncertainties in City planning or financing are not the direct consequence of chapter 773, which commits to no binding law of any sort; Staten Island’s expressed interest in secession after Morris v Board of Estimate (707 F2d 686, affd 489 US 688) itself suggested planning for that contingency even without chapter 773.

Nor does the dissent add any material consideration to the factors relied on by the City (see, dissenting opn, at 489-490). That New York City may choose to incur expense in a desire to track the various Staten Island processes can hardly be deemed the State’s intrusion into New York City’s property, affairs or government; similarly, commission authorization to "request and receive” assistance is not tantamount to license to requisition resources or commandeer City agéncies, and plainly does not constitute "open-ended” or "unbridled” intrusion into City affairs (dissenting opn, at 490).

The City’s equal protection argument is also unavailing. Even in voter classification, a State is not prohibited from recognizing the distinctive interests of the residents of its political subdivisions (see, e.g., Town of Lockport v Citizens for Community Action, 430 US 259, 268-269). The legislative choice to allow Staten Island voters to express their views as to whether, and how, they might wish to separate from New York City — while affording them no unilateral right to do so— is a reasonable classification based on the distinct interest of that subdivision of the State.

Finally, our difference with the dissent may be summarized as follows. First, while fully mindful of the importance of home rule, we are sensitive as well to another fundamental precept of government: that, whether or not we endorse their wisdom, acts of the Legislature are presumptively valid and cannot be overturned unless proved unconstitutional beyond a reasonable doubt. Second, however often repeated, merely saying that chapter 773 "deeply” or "profoundly” intrudes into New York City property, affairs and government does not make it so. The virtual exclusivity of Staten Islanders in the process marks chapter 773 for what it is — not as a procedure aimed at dividing New York City without the voice of its other boroughs but as a procedure that allows Staten Island to explore its publicized interest in secession, stripped of any force without further act of the Legislature.

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

Hancock, Jr., J.

(dissenting). The court today holds that a measure which establishes a detailed process aimed at splitting New York City into two separate cities — while depriving four of its five boroughs from any voice in the process — does not affect its property, affairs or government. I cannot agree.

In concluding that chapter 773* does not violate the home rule provisions of the State Constitution, the court rejects the argument that the legislation can be upheld as merely advisory or preliminary. It does not adopt the rationale of the courts below for upholding the measure — that because the legislation is a matter of State concern, constitutional home rule compliance is unnecessary. Indeed, the court pointedly abstains from addressing that contention.

Instead, it offers as the sole reason for its affirmance the contention that there is no "interference in New York City property, affairs, or government” (majority opn, at 485) — a reason not embraced by the courts below or affirmatively advanced by the parties. But a simple reading of chapter 773 reveals that the process intrudes deeply into city affairs and has a direct and immediate impact on the personnel, finances and administration of the city. For this reason, and because the subject matter of the statute is essentially of local — not State — concern (see, e.g., Wambat Realty Corp. v State of New York, 41 NY2d 490, 494), a home rule message was mandated under NY Constitution, article IX, §2 (b) (2). There was no such message and the legislation, therefore, is invalid.

Realistically, no subject more directly concerns the affairs and government of a city than whether the integrity of its boundaries and of its existing governmental structure should be altered. There can be no question that chapter 773 sets in motion a process that has one purpose: to disengage Staten Island from New York City and establish it as a separate and independent City of Staten Island. Thus, with good reason the court concludes — as did the Appellate Division majority — that the legislation is "more than 'advisory only,’ and is surely ripe for review” (majority opn, at 485). That the voters have not yet approved the referendum does not affect this conclusion. The constitutional invalidity of the referendum — coupled with the inadequacy of a postelection determination of that constitutional issue in preventing the threatened harm — makes the question before us clearly justiciable (see, Matter of Fossella v Dinkins, 66 NY2d 162, 166-167; see also, Matter of Cantrell v Hayduk, 45 NY2d 925, 926; Matter of McCabe v Voorhis, 243 NY 401, 412-413).

The charter commission — the statute’s guiding component— is not a study group charged with investigating and reporting on the advisability of secession; it is the official body created by the Legislature for the purpose of directing the continuing process toward secession. It must support secession, hold hearings, do research, gather information and draft the complex bill that will be necessary to effectuate it. (See, ch 773, § 4 [e], as amended [mandating that within "three months of adoption of the charter by the voters of Staten Island, the commission shall submit * * * proposed legislation enabling the borough of Staten Island to disengage and separate from the city of New York” (emphasis added)].)

All 13 members of the charter commission must come from Staten Island. Each of the five Staten Island legislators, all of whom are on record as favoring the legislation, is automatically a member of the commission. Each legislator is empowered to appoint one member to the commission. The three other commission members — also Staten Island residents — are to be appointed by the Governor, the temporary President of the Senate and the Speaker of the Assembly. The commission members are to be reimbursed by the State for their actual and necessary expenses.

The commission is vested with broad powers and prerogatives for carrying out its function. It may employ and set the compensation for such employees and consultants as it shall require. It is empowered to conduct private hearings, take testimony, subpoena witnesses and require the production of books, papers and records. Significantly, the commission may demand from any State or city department or bureau, commission, office, agency or other instrumentality such facilities, assistance, data and personnel as may be necessary or desirable for the proper execution of its powers and duties (ch 773, § 6 [e]). It must establish advisory committees on the creation of school districts for Staten Island, on civil service rights and retirement benefits for city employees who will become employees of the Staten Island municipal government, and on the various tax and financial problems that will arise.

There can be no doubt that — irrespective of the ultimate possibility of secession — the very pendency of the process and the activities of the commission will have, at least, the following immediate effects:

Uncertainty and Confusion — by creating this secession-aimed legislation, the future makeup of the city’s legislative body, and the configurations of its civil service system, its school system, pension and retirement funds, its entire public debt structure, and its solid waste disposal scheme are put in question. This widespread uncertainty necessarily impairs effective present-day city planning for the future in several governmental areas.

Conscription of Resources and Personnel — from the very beginning of this multiyear process, the city’s resources and personnel are affected. The referendum to poll Staten Island’s interest in secession is to be supervised by the city Board of Election. The Board must prepare the ballots, canvass the results and certify the results to the Senate and Assembly (ch 773, § 2). Although the city’s expenditures are to be reimbursed by the State (§ 3), the city must initially lay out its money, assign its personnel, detail its expenses, and submit them to the State, subject to audit by the Comptroller. Finally and most significantly, the unbridled authorization vested in the commission to "request and receive from any * * * city * * * agency or other instrumentality such facilities, assistance, data and personnel as may be necessary or desirable [to the commission]” (§ 6 [e] [emphasis added]) amounts to an open-ended license for commandeering virtually every agency of city government.

Resultant Costs to the City — that there are direct and indirect costs to the city incident to its compliance with section 6 (e)’s command to assist the charter commission is self-evident. Notably, no provision is made for State reimbursement of these costs. Beyond that, to protect its vital interests, the city — because it is excluded from any participation in the commission’s proceedings — must now create and fund a parallel process in preparation for evaluating and reacting to any Staten Island secession bill emanating from the chapter 773 process.

Once the effect on city affairs, property or government is demonstrated, as it is here, a special act can be passed without a home rule message only where a concern exists "of sufficient importance to the State, transcendent of local or parochial interests” (Wambat Realty Corp. v State of New York, 41 NY2d 490, 494, supra). The court’s holding that chapter 773 was properly passed without a home rule message (art IX, § 2 [b] [2]) in the absence of a showing of such State concern contradicts prevailing authority (see, Matter of Town of Islip v Cuomo, 64 NY2d 50, 56-57; Matter of Kelley v McGee, 57 NY2d 522, 538; Wambat Realty Corp. v State of New York, 41 NY2d 490, 494-495, supra; Baldwin v City of Buffalo, 6 NY2d 168, 172-174; New York Steam Corp. v City of New York, 268 NY 137, 143) and ignores the significant enlargement of municipal home rule protections given to municipalities in the new reformatted local governments provisions of article IX, adopted on January 1,1964. (See, Kamhi v Town of Yorktown, 74 NY2d 423, 428-429.)

Without citing to any relevant authority and without addressing the substantial burdens imposed on broad areas of New York City government, the court simply announces that it discerns "no State interference” in city affairs. Significantly, it does not hold that chapter 773 is "of sufficient importance to the State, transcendent of local or parochial interests” (Wambat Realty Corp. v State of New York, 41 NY2d 490, 494, supra). Indeed, it never reaches this issue. With no showing of a perceptible State interest, chapter 773 is before us as a measure that is quintessentially local in its effect. Under these circumstances, there can be no question that under governing case law (see, Matter of Town of Islip v Cuomo, supra; Matter of Kelley v McGee, supra; Wambat Realty Corp. v State of New York, supra), a home rule message was mandated by article IX, § 2 (b) (2).

In conclusion, one might well ask: what will "affect” the property, affairs or government of an existing city so as to necessitate home rule compliance, if a statute having the invasive characteristics of chapter 773 does not, even though it establishes a process aimed at the city’s very dissolution? The court’s remarkable holding that such compliance is not called for gives unwelcome credence to the gloom expressed by one commentator for the future of home rule in New York (see, Cole, Constitutional Home Rule in New York: "The Ghost of Home Rule”, 59 St John’s L Rev 713, 749 [1985]). The words of Chief Judge Cardozo — written more than six decades ago— now seem all too prescient: "Home Rule for cities, adopted by the people with much ado and after many years of agitation, will be another Statute of Uses, a form of words and little else, if the courts in applying the new tests shall ignore the new spirit that dictated their adoption. The municipality is to be protected in its autonomy against the inroads of evasion.” (Matter of Mayor of City of N. Y. [Elm St.], 246 NY 72, 76 [emphasis added]; see, Kamhi v Town of Yorktown, 74 NY2d 423, 428, supra; Baldwin v City of Buffalo, 6 NY2d 168, 173, supra).

Chief Judge Wachtler and Judges Simons, Kaye and Bellacosa concur in Per Curiam opinion; Judge Hancock, Jr., dissents and votes to reverse in a separate opinion in which Judge Alexander concurs; Judge Titone taking no part.

Order affirmed, with costs.

      . Citation to the annexation provisions of the State Constitution (NY Const, art IX, § 1 [d]; dissenting opn, at 491) serves only to underscore that were annexation or the actual alteration of boundaries in issue, this would be a different case.

      . Contrary to the dissent (dissenting opn, at 488), the argument that the legislation is legally immaterial was most assuredly advanced by the State. The fact that the court offers as a sole reason for affirmance that there is no intrusion into New York City property, affairs or government is hardly a criticism: that is the necessary first step in any home rule analysis.

      . Chapter 773 of the Laws of 1989 was amended by chapter 17 of the Laws of 1990. Unless otherwise noted the statute in its present amended form will be referred to simply as chapter 773.

      . The Appellate Division majority in affirming the holding of Supreme Court that the measure does not violate article IX, §2 (b) (2) expressly rejected the view of the concurrers that the statute is "purely advisory in nature” (158 AD2d, at 172).

      . The Assembly memorandum in support of the bill notes the impetus behind the bill was the change in New York City government, which diluted Staten Island’s voice in municipal affairs, resulting from Morris v Board of Estimate (707 F2d 686, affd 489 US 688). Thus the bill was introduced:
      "as one of a series of bills seeking to separate the Borough of Staten Island from the City of New York. All the bills establish the County of Richmond as a New York State county separate and distinct from New York City, with its own local governing unit.”
      (Sponsor’s [Senator Marchi, Assemblywoman Connelly] Mem in support, Bill Jacket, L 1989, ch 773, at 1; see also, Revised Mem in support by Senators Marchi and Connor, Assembly members Connelly, Vitaliano and Straniere, id.).

        . The 1964 amendment added a new provision (NY Const, art IX, § 3 [c]) which expressly repudiated the prevailing rule (Dillon’s rule) mandating strict judicial construction of the municipal home rule provision (art IX, § 2 [b] [2]). That amendment also established a "bill of rights for local governments” which included an annexation provision recognizing that the residents of a municipality affected by a boundary change have both a compelling interest in any process by which boundary changes do occur, and a fundamental right to participate in that process (see, NY Const, art IX, § 1 [d]).


source: Caselaw Access Project

author: Bellacosa, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v Richard Morgan, Respondent.
    Argued September 5,1990;
    decided October 16, 1990

      POINTS OF COUNSEL

      Steven Chananie, Ronald Goldstock and Martin Marcus for appellant.

      Richard E. Kaplan for respondent.
   OPINION OF THE COURT

Bellacosa, J.

The issue in this appeal is the admissibility at trial against defendant of Grand Jury testimony of a recalcitrant, "cooperating” accomplice, Flihan, under the declaration against penal interest exception to the hearsay rule. In People v Thomas (68 NY2d 194), we held that statements made by an accomplice at his own guilty plea allocution qualified as a declaration against his penal interest, and were therefore admissible at the trial of the defendant in that case. Applying the Thomas formula, the trial court at defendant’s trial admitted Flihan’s Grand Jury testimony as a declaration against his penal interest after he refused to testify. The Appellate Division held that admitting the testimony was error, reversed defendant’s conviction and ordered a new trial. The People were granted leave to appeal by a Judge of this court. We agree with the result reached by the Appellate Division.

Application and analysis of the Thomas criteria lead us to conclude that Flihan’s Grand Jury testimony was not sufficiently and imminently against his penal interest to satisfy the core reliability prerequisite for admission at trial under this very restricted hearsay exception. By its nature, his testimony before the Grand Jury, pursuant to a cooperation agreement favorable to himself, held no reasonably certain or imminent threat of prosecution or conviction, despite his waiver of immunity. In this circumstance, Flihan’s statements do not qualify as against his penal interest. They are therefore significantly different from the plea allocution statements that were authorized for use at trial in Thomas. There, the open court statements, by their nature, necessarily triggered adverse penal consequences; namely, the formalization of the conviction itself by the ensuing sentence.

Defendant and his codefendants Cefola, Fata and Flihan were indicted for conspiracy and criminal sale and possession of a controlled substance following an undercover drug "buy- and-bust” operation conducted by the New York State Organized Crime Task Force and centered in Oneida County. Flihan and Fata were arrested on June 26, 1986 at the New Hartford Holiday Inn, the site of the drug sale, after handing one-half kilogram of cocaine to an undercover officer. Defendant and Cefola, who had remained behind in a hotel room in Utica while the sale was completed, were arrested during execution of a search warrant for the room.

On July 2, 1986, Flihan entered into a written cooperation agreement with the Task Force in which he agreed to testify before the Grand Jury, under waiver of immunity, and at any subsequent trial. The agreement provided that if Flihan gave incomplete, misleading, or false information or testimony, the agreement would be null and void. In return, the Deputy Attorney-General agreed to accept Flihan’s guilty plea to a charge of second degree conspiracy in full satisfaction of all "potential charges” for conspiracy and sale and possession of a controlled substance up to the date of the agreement.

Flihan’s testimony before the Grand Jury on July 2, 1986 included admissions that he sold 17 ounces of cocaine to the undercover officer, which he got from Cefola at a hotel room, and that he merely acted as a "broker, courier, a go-between,” to facilitate the sale. Flihan was subsequently indicted for second degree conspiracy and his conviction after a guilty plea was affirmed (People v Flihan, 131 AD2d 269, affd 73 NY2d 729). Defendant was indicted for first degree criminal possession of a controlled substance and second degree conspiracy to sell and possess a controlled substance.

At trial, the People called Flihan to testify in accordance with the terms of the cooperation agreement. He balked and instead invoked his Fifth Amendment privilege. Upon his refusal to testify, the People moved to read portions of his Grand Jury testimony into evidence as a declaration against penal interest. The motion was granted over defendant’s objection. The trial court, acknowledging Thomas, concluded that Flihan’s refusal to testify rendered him legally "unavailable”, and that the Grand Jury testimony was sufficiently against Flihan’s penal interests due to his waiver of immunity and his admissions that he personally sold and possessed cocaine. The court felt this prerequisite was satisfied even though Flihan was allowed to plead to a lesser charge in exchange for his earlier cooperation. Flihan’s Grand Jury testimony was then redacted to exclude all references to the defendant and was read into evidence. The trial court later instructed the jury concerning the exception to the hearsay rule, stating in part that "a person probably would not make a statement admitting that he committed a crime, against his penal interest, unless it were true.” The trial court also instructed the jury to consider Flihan’s motives for making the statements, his awareness of the consequences of the statements, the probability of their truth, and whether there were independent circumstances supporting the trustworthiness of the statements, and to weigh the statements accordingly. The jury convicted defendant Morgan.

As noted earlier, the Appellate Division reversed the conviction and ordered a new trial, holding that the admission of Flihan’s Grand Jury testimony was an abuse of discretion and violated defendant’s constitutional right to confront the witnesses against him. The court found that it was possible that Flihan had a motive to falsely implicate others, including defendant, during his Grand Jury testimony in order to curry favor with the prosecution, and that there was "some doubt what penal interest he testified against” (151 AD2d, at 225) because his testimony attempted to minimize his participation in the drug sale transaction.

Our holding in Thomas (People v Thomas, 68 NY2d 194, supra) reflects the historically restricted availability of the declaration against penal interest exception to the hearsay rule in this State. We have repeatedly recognized that although such declarations may be typically endowed with reliability and trustworthiness because "a person ordinarily does not reveal facts that are contrary to his own interest” unless they are true (People v Maerling, 46 NY2d 289, 295), due process considerations require particularly searching scrutiny of declarations of unavailable witnesses where they are used to inculpate a defendant in a criminal action (People v Brensic, 70 NY2d 9, 15). Thus, we have emphasized as a prerequisite to the admission of such declarations that the declarant’s penal interest "be of sufficient magnitude or consequence” so as to eliminate probable motive to misrepresent the facts (People v Thomas, 68 NY2d, supra, at 198). Motive can be found in a desire to curry favor with the authorities, shift blame, receive immunity from prosecution or obtain a favorable plea bargain (People v Brensic, 70 NY2d, supra, at 15; People v Geoghegan, 51 NY2d 45, 49).

In Thomas (supra, at 197), we applied a four-step guide to assess the admissibility under the exception: "(1) the declarant must be unavailable to give testimony, whether by reason of absence from the jurisdiction, refusal to testify on constitutional grounds or death; (2) the declarant must have been aware at the time of its making that the statement was contrary to his penal interest; (3) the declarant must have competent knowledge of the underlying facts; and (4) there must be sufficient competent evidence independent of the declaration to assure its trustworthiness and reliability”. While we held in Thomas that the plea allocution statements there were admissible, we recognized the competing dual interests in the context of plea bargains — a guilty plea is surely contrary to penal interest in the sense that it leads to "immediate conviction and sentence, establishes a criminal record, and risks enhanced punishment for future crimes,” but it simultaneously serves the declarant’s penal interest by the compromise of a plea to a lesser charge or one with a more lenient sentence (68 NY2d, supra, at 198-199). Here, Flihan may well have thought of his testimony as being only in aid of his penal interest and not adverse at all within the meaning of the Thomas exception criteria.

We also noted in Thomas the safeguards of reliability that inhere in the plea allocution process as contrasted, for example, to a custodial confession: allocutions take place in an open court; the declarant is queried by a Judge and is represented by counsel and advised of the forfeiture of the right to trial, to remain silent, and to present witnesses and confront an accuser; and the declarant is informed of the immediate and future consequences of the plea — conviction and sentence (People v Thomas, supra, at 199). After considering this array of factors, we concluded in Thomas that the declarant’s plea allocution statements, which also did not in any way minimize his own culpability, were "wholly disserving” and "directly contrary to his penal interest” and were therefore admissible (id., at 200).

The circumstances surrounding Flihan’s Grand Jury testimony do not lend the technical and policy assurances of adversity to penal interest and of reliability that were present in Thomas, and therefore fail to satisfy that threshold admissibility test as a matter of law. Key to our holding is that Flihan in the circumstances presented did not face immediate or certain conviction and sentence after testifying. On the contrary, the cooperation agreement that brought about his Grand Jury testimony referred to "potential charges” against him, and his Grand Jury testimony represented only the first step in a continuing, open-ended relationship. The conditional nature of the criminal charges against him, combined with his waiver of immunity, provided maneuvering room and a motive to minimize his role in the drug sale transactions perhaps at the expense, unreliably, of others. Under the circumstances, there was at least the possibility that Flihan was "using” the system, rather than unburdening his conscience, the linchpin of this hearsay exception. His desire and the necessity to implicate others to avoid prosecution may well have predominated, and that is not adverse to one’s penal interest. In fact, Flihan testified that he was merely a courier in the deal. The particular setting of this case beclouds the adverse penal interest and reliability aspects of Flihan’s Grand Jury statements. We do not decide the question whether Grand Jury testimony can qualify for this hearsay exception, but rather that Flihan’s testimony under particularized analysis and application of the Thomas criteria does not.

Finally, the cloud is not lifted by the relevant but insufficiently persuasive factors that Flihan was sworn and warned to tell the truth, and was told by the presiding Judge that his attorney could be present in the Grand Jury room. Nor does the trial court’s comprehensive instruction to the jury concerning the admissibility of declarations against penal interest offset our assessment of the threshold evidentiary determination. Incorporating the Thomas criteria in the jury instructions is no hedge against an erroneous admissibility ruling.

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

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order affirmed.


author: Hancock, Jr., J.

text:
    In the Matter of Charles J. Hynes, as District Attorney of Kings County, Respondent, v Norman George, as Justice of the Supreme Court, et al., Appellants.
    Argued September 12,1990;
    decided October 16, 1990

      POINTS OF COUNSEL

      Steven B. Wasserman and Robert M. Baum for Daniel Ruso, appellant.

      Milton Stern and Robert Abrams, Attorney-General (O. Peter Sherwood, Lawrence S. Kahn and Harvey M. Berman of counsel), for Norman George, appellant.

      Charles J. Hynes, District Attorney (Ann Bordley, Jay M. Cohen and Peter A. Weinstein of counsel), for respondent pro se.

   OPINION OF THE COURT

Hancock, Jr., J.

The People three times announced their readiness for trial in the case of People v Daniel Ruso. On the date the trial was to commence, however, the prosecutor sought an adjournment because the complaining witness failed to appear at a meeting that morning and could not be reached by telephone. The trial court denied the request and ordered the trial to proceed. The issue is whether the trial court had the power to deny the People’s request for an adjournment and to proceed with jury selection. We conclude that the trial court had such power and that the Appellate Division erred in granting the People’s article 78 proceeding to prohibit the trial court "from empanelling a jury or otherwise purporting to move [the case] to trial”. We, therefore, reverse.

I

Respondent Daniel Ruso was indicted in September 1989 for robbery, third degree, and harassment, arising from an alleged forcible theft of $5 from his grandmother, Mrs. Maria Ruso. On April 5, 1990, the case came on for trial before Kings County Supreme Court Justice Quinones. The People declared that they were ready for trial and, that day, a Huntley hearing was held. After defendant’s counsel was unable to proceed on the next set trial date, April 15, the trial was adjourned until April 23, 1990. Again on April 23, the People announced their trial readiness, but the case was adjourned for another day because Justice Quinones was involved in trial and no other parts were available. On April 24, the People again announced their readiness. Because Justice Quinones was still engaged, he transferred the case to respondent’s part for trial. Respondent granted defendant’s request to adjourn the case until the following day and, to accommodate a morning meeting the Assistant District Attorney had scheduled with the complaining witness, ordered that the trial proceedings not begin until 11:00 a.m.

At 11:35 a.m. on April 25, the prosecutor informed the court that the People were not ready to proceed because the complainant had missed her scheduled meeting and he had been unable to locate her by telephone. The prosecutor advised the court that the complainant, a Brooklyn resident, had kept each of her five or six prior appointments. However, although she had expressed reluctance to testify against her grandson, the People never sought to insure her appearance in court by means of a subpoena.

Respondent denied the People’s request, stating: "the People have knowledge and notice that the complaining witness is the defendant’s grandmother * * * [who] is sympathetic towards her grandson * * * [and thus] was a 'reluctant’ witness, and [the People] having been advised of all of these things and not having taken appropriate actions to assure the complaining witness’ appearance in court for trial and not having even served a subpoena upon the complaining witness, and not having provided the Court with any information as to when and if the complaining witness will ever appear or where the complaining witness is or that they have even been in communication directly with the complaining witness rather than with the complaining witness’ daughter,[] in view of all of these facts and circumstances the People’s application for an adjournment is denied and we will go forward with the trial.” The court announced that the case would be recessed until 2:00 p.m., when it would rule on the Sandoval motion and commence jury selection. The court expressly rejected the People’s contention that it lacked the power to proceed without the People’s consent.

After recess, the prosecutor refused to participate in jury selection, stating that he was not ready for trial. The voir dire went ahead without the People’s participation and after eight jurors were selected, the case was recessed until the following morning.

The next day the People initiated this prohibition proceeding in the Appellate Division (see, CPLR 7803 [2]; 7804 [b]) by petition and an order to show cause which temporarily stayed further proceedings in the criminal trial. Thereafter, the Appellate Division granted the petition, on the law, and ordered that the eight jurors be discharged and that further jury selection be stayed until such time as the People announce their readiness for trial. That court concluded that ”[w]hile the power of the trial court to deny the People any further adjournment is not disputed, the court erred in calling up a jury panel and compelling the People to proceed to trial when an essential witness was unavailable.” (161 AD2d 559.)

We do not accept the Appellate Division’s conclusion that the court, while undeniably having the power to deny an adjournment, lacked the power to order that the trial proceed. The People’s prohibition petition, therefore, should not have been granted.

II

Article 78 relief in the nature of prohibition (CPLR 7803 [2]) is an extraordinary remedy (see, Matter of Holtzman v Goldman, 71 NY2d 564, 569-570; Matter of Rush v Mordue, 68 NY2d 348, 352-353; Matter of Dondi v Jones, 40 NY2d 8, 13; Matter of State of New York v King, 36 NY2d 59, 65). In cases such as this, where judicial authority is challenged, it is only available if a clear legal right exists and then only when the court acts or threatens to act either without jurisdiction or in excess of its authorized powers (see, Matter of Holtzman, supra, at 569; Matter of Rush v Mordue, supra, at 352; Matter of Morgenthau v Erlbaum, 59 NY2d 143, 147, cert denied 464 US 993; Matter of Steingut v Gold, 42 NY2d 311, 315; Matter of Dondi v Jones, supra, at 13).

The power of the trial court to deny the People’s request for an adjournment is not, and cannot be, disputed (see, Matter of Holtzman v Goldman, supra, at 566, 570, 575; People v Douglass, 60 NY2d 194, 200; People v Foy, 32 NY2d 473, 476-478; People v Jackson, 111 NY 362 [1888]). The People nonetheless contend here that respondent was without the power to proceed with the trial and could only place the case on the reserve calendar, exercise its contempt power (if the People failed to exercise reasonable diligence in locating the complainant) or dismiss the case in the interest of justice. The People rely on Matter of Holtzman v Goldman (71 NY2d 564, supra; see also, People v Douglass, 60 NY2d 194, 200, supra). The Appellate Division agreed with this contention. We do not.

Matter of Holtzman v Goldman (supra) is clearly distinguishable. In Holtzman, the court held that the trial court does not have the power to terminate a criminal proceeding by default by entering a trial order of dismissal on the merits where no evidence had been presented and the merits of the case had not yet been heard (see also, People v Douglass, 60 NY2d 194, 200-206, supra [discussing the trial court’s lack of authority to dismiss a criminal case for "failure to prosecute” or "calendar control”]). We noted that the trial court was not "helpless” and suggested that rather than terminate the criminal case, it could have "placed the case on a reserve calendar to be restored only when ready for trial or dismissed when the speedy trial period had elapsed”, exercised its contempt powers for unreasonable delay in locating complainant, or entertained a motion for dismissal in the interest of justice (71 NY2d, at 574). As the court made "perfectly plain”: our decision "does not divest Supreme Court of authority or discretion respecting adjournments or otherwise. * * * Only the extreme measure of dismissal of a criminal prosecution [was] in issue” (id., at 575).

Here, unlike Holtzman or Douglass, the trial court entered no order of dismissal; it simply required the parties to proceed with jury selection (see, CPL 260.30). Given that the trial court concededly had the power to deny the People’s request to "adjourn” the trial — that is, to deny " 'putting [it] off until another time or place’ ” (People v Martin, 5 NY 22, 26; see, Matter of Holtzman v Goldman, 71 NY2d, at 580 [Bellacosa, J., dissenting]; cf., People v De Rosa, 42 NY2d 872 [refusal of trial court to grant prosecutor a few hours adjournment under the facts of that case constituted an abuse of discretion]) — a conclusion that the court nevertheless lacked the power to proceed with the trial in its normal course would be an anomaly.

The People further argue that the order to proceed to trial was tantamount to a dismissal order, thus bringing this case within the proscription of Holtzman. This argument has no merit. The trial court, which had expressly reviewed this court’s decision in Holtzman, did not intimate that it would issue a dismissal order in violation of Holtzman, much less threaten to do so. Contrary to the People’s argument, respondent’s order to proceed with jury selection did not have the practical effect of a "threatened” dismissal. The People had time during the jury selection process to make further efforts to locate the complainant — a 67-year-old Brooklyn resident who had theretofore cooperated with the prosecution. If such efforts failed, the People could have made a second adjournment request. The People made no such efforts, but choose instead to commence this collateral proceeding at the Appellate Division.

Finally, the People contend that the trial court lacked the authority to proceed, in any event, because their time to prepare their case under CPL 30.30 had not yet lapsed. They rely on People v Anderson (66 NY2d 529). In Anderson, the court held that although CPL 30.30 (3) (b) recognizes a defendant’s right to move for dismissal after the People have answered ready, "[t]his is not to say that by answering ready prior to the expiration of the applicable period stated in subdivision 1 or subdivision 2 the People forfeit their right to the time remaining.” (Id., at 536-537.) In stating that the People "are entitled to the full period allowed, either before or answering ready” (id., at 537), we held only that a CPL 30.30 speedy trial motion to dismiss may not be granted without giving the People the full benefit of the exclusions. But this case does not involve a 30.30 motion. Anderson cannot be read to support the notion that the People are immune from a postreadiness order requiring them to go to trial prior to the expiration of the CPL 30.30 (1) readiness period. To the contrary, as this court stressed in People v Douglass (60 NY2d 194, supra), a trial court is not "obligated to grant every adjournment requested by a prosecutor simply because statutory or constitutional time limitations have not expired.” (Id., at 200.)

In sum, this is not a situation where a trial court dismissed a criminal case without authority. Here, the People declared their readiness and brought this criminal case to the eve of trial. Having done so, and having conceded that the trial court had the authority to deny their request for an adjournment, the People’s efforts to prevent respondent from proceeding with the trial must fail. To hold that prohibition lies in this situation would nullify the trial court’s power to deny prosecutors’ requests for adjournments and enable prosecutors, displeased with the denial of their adjournment requests, to override the trial court’s ruling by simply commencing a collateral proceeding.

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

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Judgment reversed, etc.

      . Hereinafter respondent Justice George will be referred to as respondent, and respondent Daniel Ruso will be referred to as defendant.

      . Apparently the complainant’s principal language is Romanian, and in the People’s prior meetings, the complainant’s daughter (defendant’s mother) had served as an interpreter.

      . Pursuant to the trial court’s order, however, the prosecutor remained in the courtroom.


author: Per Curiam.

text:
    National Westminster Bank, USA, Respondent, v State of New York, Appellant.
    (Claim No. 75327.)
    Argued September 11,1990;
    decided October 16, 1990

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Peter H. Schiff, O. Peter Sherwood and Michael S. Buskus of counsel), for appellant.

      Kenneth G. Zitter for respondent. I.
   OPINION OF THE COURT

Per Curiam.

Claimant obtained a judgment in Nassau County and filed a copy of the judgment with the County Clerk in Bronx County, where the judgment debtor owned real property. The property, however, was subsequently sold free of the judgment because the Clerk had negligently failed to record it. When the claimant discovered the negligence, it applied to the Court of Claims to file a late notice of claim against the State. The motion was granted as was the claimant’s later motion for summary judgment. The Appellate Division affirmed and we granted the State’s motion for leave to appeal.

The State urges that it should not have been held liable for the Clerk’s negligence because the Clerk was not acting as a State officer when he accepted the judgment for filing.

The County Clerk serves both the State and local governments (Olmsted v Meahl, 219 NY 270). As a clerk of the courts, the County Clerk is a State officer for whom the State is responsible. But when performing general duties the County Clerk acts as a local officer, and the local government must answer for actions taken. In the City of New York, the office of County Clerk is now wholly a part of the Unified Court System (Durante v Evans, 94 AD2d 141, affd 62 NY2d 719), but the Clerk still performs some local functions for which the State is not liable (Ashland Equities Co. v Clerk of N. Y County, 110 AD2d 60). The question as to whether the Clerk should be considered a State or local officer in a suit challenging his conduct depends upon the nature of the act which is the subject of the suit. "The county clerk should not, therefore, be considered as acting in his capacity as a state officer except as he performs acts that are in themselves a part of the judicial system.” (Olmsted v Meahl, supra, at 278.)

The State urges that the Clerk was not acting as a clerk of the court when he accepted the judgment for filing. It contends that at this stage the judicial process was complete and the filing of the judgment involved a purely general duty akin to filing a lien or mortgage. This is too narrow a view of the Clerk’s role in the judicial system. The filing of a notice of pendency is part of the judicial process, and the Clerk acts as a State officer in that respect, although the filing may occur before any suit has been commenced (Ashland Equities Co. v Clerk of N. Y County, supra). The Clerk also acts as an officer of the court when expunging a judgment which was previously filed (Haskins v State of New York, 145 AD2d 915). Similarly, filing a judgment is part of the continuing judicial process. As the Court of Claims noted in this case: "It is the very culmination of the law suit and the mechanism through which recovery of the judgment may be obtained.” The fact that the judgment was obtained in the Nassau County Supreme Court and filed with the clerk of the court in Bronx County is not significant. Under the Unified Court System they are but separate parts of a single State-wide Supreme Court (Siegel, NY Prac § 12).

Alternatively, the State argues that the Clerk’s status as a State or local officer with respect to liability for a particular act should depend upon the fees allowed in CPLR 8020 ("County clerks as clerks of court”) and CPLR 8021 ("County clerks other than as clerks of court”). Following this approach, Clerks would not be acting as court officers with respect to the filing of a judgment (CPLR 8021 [b] [7]); but neither would they be acting as clerks of the court when called upon to file a notice of pendency (CPLR 8021 [a] [10]). This is inconsistent with the functional approach and, in essence, calls for a change in the settled rule. Although the fee schedules may serve as a factor in determining whether the County Clerk was acting as a State or local officer, they were not designed to conclusively establish the liability of the State or local governments for the County Clerk’s actions and should not be given that effect.

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

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion.

Order affirmed, with costs.


author: Chief Judge Wachtler.

text:
    The People of the State of New York, Respondent, v William Pymm, Edward Pymm, Jr., Pymm Thermometer Corporation and Pak Glass Machinery Corporation, Appellants.
    Argued September 6,1990;
    decided October 16, 1990

      POINTS OF COUNSEL

      Albert J. Brackley and Lewis D. Cohen for appellants.

      Robert Abrams, Attorney-General (Nancy Stearns, O. Peter Sherwood and Lawrence S. Kahn of counsel) and Charles J. Hynes, District Attorney (Shulamit Rosenblum and Jay M. Cohen of counsel), for respondent.

      Daniel J. Popeo, Richard A. Samp, Jan S. Amundson and Quentin Riegel for Washington Legal Foundation and another, amici curiae.

      Michael B. Gerrard and Anne C. Weisberg for New York Committee for Occupational Safety and Health, amicus curiae. I.
   OPINION OF THE COURT

Chief Judge Wachtler.

In this case, we consider whether Federal regulation of workplace safety under the Occupational Safety and Health Act of 1970 (29 USC § 651 et seq.) (the Act) preempts New York’s efforts to punish culpable employer conduct under its general criminal laws. We conclude that the Act does not expressly or impliedly preempt State prosecution of employers whose criminal activity happens to be centered in the workplace or directed against employees. The order of the Appellate Division reinstating the jury’s guilty verdict against these defendants should therefore be affirmed.

L

The corporate defendants Pymm Thermometer Corporation (PTC) and Pak Glass Machinery Corporation (Pak Glass) are domestic corporations that operate on two separate floors of the same Brooklyn building. PTC, which is located on the second floor, manufactures thermometers for clinical use, while Pak Glass, located on the ground floor, services and repairs the machinery used by PTC. Defendant William Pymm was vice-president of both corporations from 1981 to 1984 and has been their president since 1984. Defendant Edward Pymm, Jr. holds the title of vice-president and has served as plant manager for both operations since 1981.

Mercury contamination has been an ongoing problem at PTC, posing a serious health risk to PTC’s employees. The mercury used to fill the thermometers, although a liquid at normal temperatures, readily evaporates into the surrounding air. Once inhaled, mercury vapor passes from the lungs into the bloodstream and is then circulated throughout the rest of the body, including the brain. Mercury can also enter the body through breaks in the skin, or can be ingested by eating food that has come in contact with mercury or by failing to wash mercury-contaminated hands before eating. Mercury vapor is highly toxic and long-term exposure to low concentrations of mercury can result in permanent neurological damage. Victims of mercury poisoning experience restlessness, sleeplessness, loss of appetite, faltering gait, tremor of the hands, unsteadiness, difficulty in concentrating, and memory loss.

A number of inspections dating back to the early 1970’s revealed that workers at PTC’s second floor manufacturing facility were not adequately protected from the dangers of mercury poisoning. Before the enactment of the Act, the Division of Industrial Hygiene of the State Department of Labor monitored workplace safety at PTC by conducting semiannual inspections of the PTC plant. In 1975, the Occupational Safety and Health Administration (OSHA). assumed responsibility for workplace safety. OSHA conducted four inspections of the facility between 1981 and 1984. These inspections revealed hazardous working conditions in the second floor manufacturing area. Workers did not wear protective gear, such as gloves or respirators, and the workplace was dangerously contaminated with mercury. Both William and Edward Pymm were warned of the dangers of mercury poisoning and were encouraged to adopt measures that would minimize the possibility of workers either ingesting liquid mercury or inhaling mercury vapors. PTC was twice cited by OSHA as a result of the workplace conditions observed on the second floor.

In 1985, OSHA learned that PTC was operating a clandestine mercury reclamation operation in the basement of the building. The defendants had omitted the basement area from any of the earlier inspections, despite the fact that OSHA inspectors had asked to see all of the area in which mercury was being used. When OSHA agents first confronted William Pymm about the reclamation facility, he denied that it even existed. Testimony at trial established that PTC had been recovering the mercury from broken thermometers since 1983. Vidal Rodriguez, a PTC employee since 1981, testified that he had fed the broken thermometers into a glass crusher as part of the reclamation process. The machine ground the thermometers, releasing the mercury, which was passed into a filtration trough, separated and collected. An initial inspection of the reclamation operation had revealed boxes loaded with broken thermometers piled against the walls with mercury seeping out of the boxes and leaking out onto the floor. Readings taken at this time revealed mercury vapor readings almost five times the level permitted by OSHA. Although the cellar was almost entirely without ventilation, Rodriguez for the first several months was without a respirator and only later was given a single respirator to be shared with another worker. In 1984, physicians examining Rodriguez noticed that he had developed neurological symptoms that were consistent with mercury poisoning. Experts testifying at trial attributed these abnormalities, including damage to Rodriguez’s brain, to long-term exposure to mercury.

Defendants were charged with conspiracy in the fifth degree (Penal Law § 105.05 [1]); falsifying business records in the first degree (Penal Law § 175.10); assault in the first degree (Penal Law § 120.10 [4]); assault in the second degree (Penal Law § 120.05 [4]); and reckless endangerment in the second degree (Penal Law § 120.20). The jury found the defendants guilty of all counts in the indictment. The Trial Justice set aside the verdict, holding that the State prosecution was preempted by the Federal Government’s regulation of workplace safety under the Act. Additionally, the Trial Justice ruled that the evidence was legally insufficient to support the conspiracy and reckless endangerment counts of the indictment. The Appellate Division reversed, and we now affirm.

IL

The Act was enacted "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions” (29 USC § 651 [b]). In declaring the purposes behind the Act, Congress also noted the importance of encouraging employers "to reduce the number of occupational safety and health hazards at their places of employment, and * * * to institute new and to perfect existing programs for providing safe and healthful working conditions” (29 USC § 651 [b] [1]). The Act directs the Secretary of Labor to promulgate health and safety standards for the workplace (see, 29 USC § 655) and authorizes the Secretary to conduct inspections and investigations to ensure that employers are complying with these standards. Section 5 requires employers to comply with all standards promulgated by the Secretary of Labor and additionally imposes a general duty to "furnish to [employees] employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees” (Pub L 91-596, §5 [a] [1], 29 USC §654 [a] [1]). The Act was not enacted for the principal purpose of punishing employers for workplace deaths or injuries; rather, "[i]t authorizes the promulgation of health and safety standards and the issuance of citations in the hope that these will act to prevent deaths or injuries from ever occurring.” (Whirlpool Corp. v Marshall, 445 US 1,12.)

The Act provides for both civil and criminal penalties for certain types of violations. These are spelled out in section 17 (Pub L 91-596, § 17, 29 USC § 666). In brief, willful or repeat violations of either a standard or of the general duty to provide a safe workplace are punishable by a civil penalty of not more than $10,000 (29 USC § 666 [a]). Serious violations are punishable by a civil penalty of up to $1,000 for each violation (29 USC § 666 [b]). A serious violation exists "if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment” (29 USC § 666 [k]). Willful violations leading to the death of an employee are punishable, after conviction, by criminal fines and up to six months’ imprisonment.

Section 18 addresses State jurisdiction over occupational health and safety issues (29 USC § 667). Section 18 (a) provides that a State is free to assert jurisdiction over such an issue if there is no Federal standard already in effect (Pub L 91-596, § 18 [a], 29 USC § 667 [a]). Section 18 (b) permits each State to submit its own plan for the development and enforcement of workplace health and safety standards to the Secretary of Labor for approval. If the State plan is approved, the State can reassume responsibility over workplace issues that are already the subject of Federal standards (29 USC § 667 [b]). The Secretary cannot approve the State plan unless it is "at least as effective in providing safe and healthful employment and places of employment” as the Federal standard already in place (29 USC § 667 [c] [2]).

The Act also contains a savings clause that addresses the continued viability of State statutory and common-law duties and liabilities in light of the comprehensive Federal regulatory scheme contained in the Act. Section 4 (b) (4) provides: "[n]othing in this Act shall be construed to supersede or in any manner affect any workmen’s compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.” (Pub L 91-596, § 4 [b] [4], 29 USC § 653 [b] [4].)

Ill

The appellants argue that the Act’s extensive scheme for regulation of occupational health and safety preempts State enforcement of general criminal laws to punish conduct that arises out of an employer’s failure to provide his employees with a safe workplace. It is a well-established principle that the Supremacy Clause of the United States Constitution (art VI, cl 2) invalidates State laws that "interfere with, or are contrary to” Federal law (Gibbons v Ogden, 9 Wheat [22 US] 1, 211). State laws can be preempted by Federal regulations as well as by Federal statutes (see, e.g., Hillsborough County v Automated Med. Labs., 471 US 707, 713). Federal law can preempt State law in one of three ways (see, Simpson Elec. Corp. v Leucadia, Inc., 72 NY2d 450, 455). First, Congress can enact legislation that expressly preempts State law by stating this intention in explicit language (see, Jones v Rath Packing Co., 430 US 519, 525). Second, "[a]bsent explicit pre-emptive language, Congress’ intent to supersede state law altogether may be inferred because '[t]he scheme of federal regulation [is] so pervasive as to make reasonable the inference that Congress left no. room for the States to supplement it,’ because 'the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,’ or because 'the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose.’ ” (Fidelity Fed. Sav. & Loan Assn. v De la Cuesta, 458 US 141, 153, quoting Rice v Santa Fe Elevator Corp., 331 US 218, 230.) Finally, State law will be preempted by Federal law to the extent that it actually conflicts with Federal law (see, Pacific Gas & Elec. v Energy Resources Commn., 461 US 190, 204; Fidelity Fed. Sav. & Loan Assn. v De la Cuesta, 458 US, at 153). A conflict may arise if "compliance with both federal and state regulations is a physical impossibility” (Florida Avocado Growers v Paul, 373 US 132, 142-143), or if State law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (Hines v Davidowitz, 312 US 52, 67; see also, Capital Cities Cable v Crisp, 467 US 691, 706; Michigan Canners & Freezers v Agricultural Bd., 467 US 461, 478.)

As a preliminary matter, we note that "[wjhere * * * the field which Congress is said to have pre-empted has been traditionally occupied by the States * * * 'we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ ” (Jones v Rath Packing Co., 430 US, at 525, quoting Rice v Santa Fe Elevator Corp., 331 US 218, 230, supra; see also, Hillsborough County v Automated Med. Labs., 471 US, at 715; Auto Workers v Wisconsin Bd., 351 US 266, 273, n 11, quoting Allen-Bradley Local v Wisconsin Bd., 315 US 740, 748-749.) As the United States Supreme Court has stated, "[t]he States are the natural guardians of the public against violence * * * [w]e would not interpret an act of Congress to leave [local communities] powerless * * * without compelling directions to that effect.” (Auto Workers v Wisconsin Bd., 351 US, at 274-275.)

Despite the fact that Federal preemption of State criminal law will not be presumed, the appellants argue that their prosecution under New York’s Penal Law is both expressly and impliedly preempted by the Act. We will consider each of these contentions in turn.

Appellants argue that section 18 of the Act expressly preempts the application of State criminal law to workplace conditions that are already subject to a Federal standard. As noted above, section 18 (b) permits States to assume responsibility for the regulation of occupational health and safety issues by submitting a plan to the Secretary of Labor for approval. Appellants contend that because the State of New York has not submitted a plan to the Secretary, the criminal prosecution at issue here is impermissible standard-setting that is expressly preempted by the Act.

Section 18 (b), however, relates only to the development and enforcement of standards, and does not speak to State enforcement of general criminal laws. The Act defines "occupational safety and health standard” as "a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment” (29 USC § 652 [8]). We do not believe that New York’s general criminal laws are occupational safety and health standards as this term is used in the Act. They do not "require conditions, or the adoption or use of * * * practices, means, methods, operations, or processes.” While OSHA standards are prophylactic measures that are intended to prevent workplace accidents from ever occurring (see, Whirlpool Corp. v Marshall, 445 US 1, 12, supra), the criminal laws of this State are triggered only after the commission of certain acts that society as a whole deems unacceptable, wherever they may occur. State criminal prosecutions lead to the imposition of penalties that reflect society’s condemnation of behavior in violation of generally accepted norms (see, People v Pymm, 151 AD2d 133, 139; Note, Getting Away With Murder: Federal OSHA Preemption of State Criminal Prosecutions for Industrial Accidents, 101 Harv L Rev 535, 543). While necessarily reactive in effect, the general criminal laws of this State also serve to deter conduct that society has labeled intolerable and morally repugnant, and in this way protect every citizen of the State. Because the Penal Law protects all citizens, including workers, and because it punishes as well as deters, we believe that the purposes behind its enforcement, while certainly consistent with the development and enforcement of OSHA standards, are sufficiently separate to warrant its continued viability in the Federally regulated workplace. In addition, we believe that the very existence of section 4 (b) (4), which preserves State common-law and statutory rights, duties and liabilities, indicates that Congress did not intend the provisions permitting retention and assumption of State jurisdiction over workplace issues to preempt the enforcement of State criminal laws. Therefore, having considered the broad language of the savings clause together with the presumption against preemption discussed earlier, we conclude that section 18 of the Act does not expressly preempt the enforcement of New York’s Penal Law.

Appellants also argue that the State prosecution is impliedly preempted in two ways: first, because Federal regulation occupies the field of occupational health and safety; and second, because enforcement of State criminal law is in conflict with the Act’s comprehensive scheme for workplace regulation. They contend that the penalties imposed here are inconsistent with the penalty scheme contained in the Act and violate Congress’ intent that the penalties contained in the Act be exclusive. In addition, they argue that uniformity of workplace regulation was the primary focus of the Act and that individual State prosecutions undermine this goal, thereby conflicting with the Federal regulatory scheme. Neither of these contentions has merit.

In reaching our conclusion that Federal regulation of occupational health and safety does not occupy the field, we note first that the comprehensiveness of a Federal statute or regulation does not necessarily indicate that Congress intended it to have preemptive effect. In New York Dept. of Social Servs. v Dublino, the United States Supreme Court stated that "[t]he subjects of modern social and regulatory legislation often by their very nature require intricate and complex responses from the Congress, but without Congress necessarily intending its enactment as the exclusive means of meeting the problem” (413 US 405, 415).

The Act explicitly encourages States to "assume the fullest responsibility for the administration and enforcement of their occupational safety and health laws” (29 USC § 651 [b] [11]). This alone would seem to indicate that Congress believed States should have a continuing role in the oversight of occupational health and safety concerns. Our reading of the detailed provisions for the retention and assumption of State jurisdiction over workplace issues contained in section 18 further convinces us that Congress did not intend to fill the field and preempt State regulation. Rather, it is clear that Congress intended to foster continuing State oversight over the workplace by ensuring that States would continue to exercise jurisdiction where there was no Federal standard in place and by providing that States could decide to reassert jurisdiction and impose stricter health and safety standards than those already in place by submitting a State plan to the Secretary of Labor. Section 18 carefully balances the continued importance of a State’s interest in regulating workplace concerns against the need for minimum standards that ensure some level of employee health and safety.

While enforcement of the State’s Penal Law in the context of workplace safety will necessarily touch upon conduct that is already subject to Federal regulation under the Act, we do not find that this is impermissible or even undesirable. State prosecution of cases such as this one may cause employers to pay stricter attention to the standards promulgated by OSHA. This we find to be entirely consistent with the Act’s self-proclaimed purpose — ensuring "safe and healthful working conditions” for American workers.

Our decision here is also consistent with the United States Supreme Court’s holding in Silkwood v Kerr-McGee Corp. (464 US 238). In Silkwood, the court considered whether its earlier holding that Congress had intended the Federal Government to occupy the entire field of nuclear safety (Pacific Gas & Elec. v Energy Resources Commn., 461 US 190, 212, supra) prevented an Oklahoma jury from awarding punitive damages for injuries caused by exposure to radiation at the workplace. Kerr-McGee argued that because the State-authorized award of punitive damages punished and deterred conduct related to radiation hazards, it fell within the Federally regulated field and was therefore preempted (464 US, at 249). The Supreme Court held that the award of punitive damages was not so preempted. "[I]t is clear that in enacting and amending the Price-Anderson Act, Congress assumed that state-law remedies, in whatever form they might take, were available to those injured by nuclear incidents. This was so even though it was well aware of the NEC’s exclusive authority to regulate safety matters. No doubt there is tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a State may nevertheless award damages based on its own law of liability. But as we understand what was done over the years in the legislation concerning nuclear energy, Congress intended to stand by both concepts and to tolerate whatever tension there was between them. We can do no less. It may be that the award of damages based on the state law of negligence or strict liability is regulatory in the sense that a nuclear plant will be threatened with damages liability if it does not conform to state standards, but that regulatory consequence was something that Congress was quite willing to accept.” (464 US, at 256.) The case now before us presents similar concerns. The appellants here are arguing that State criminal prosecutions are preempted by the Act because they would tend to regulate conduct already subject to pervasive Federal regulation. The Supreme Court in Silkwood expressly rejected this reasoning, despite the fact that it had already held that State regulation of nuclear safety issues was preempted. The court examined the legislative history of the Price-Anderson Act and saw in it no intent to foreclose the availability of State law remedies. Similarly, our examination of the Act, especially the express language of section 4 (b) (4), leads us to conclude that Congress intended State law statutory and common-law duties, rights and liabilities to survive, and that Congress was willing to tolerate any tension that resulted.

It is true that the Act contains limited civil and criminal penalties for willful and repeated violations of standards or of the general duty to provide a safe workplace. That these penalties are so skeletal, however, argues against their being considered preemptive of State criminal law. While the Act imposes criminal liability for willful violations leading to the death of an employee, there is currently no provision for violations leading to serious injury. Given that promotion of worker health and safety is the primary goal of the Act, it would make absolutely no sense to hold that employers who engage in willful criminal conduct, which coincidentally constitutes a violation of an OSHA standard or of the Act’s general duty clause, should be insulated from criminal prosecution simply because the culpable conduct leads to serious injury and not death. Instead, we believe that the Act’s penalties operate as a floor and that States can supplement these penalties with sanctions authorized by their own criminal laws (see, People v Hegedus, 432 Mich 598, 620, 443 NW2d 127, 137; People v Chicago Magnet Wire Corp., 126 111 2d 356, 368-369, 534 NE2d 962, 967, cert denied sub nom. Asta v Illinois, — US —, 110 S Ct 52; Note, Getting Away With Murder: Federal OSHA Preemption of State Criminal Prosecutions for Industrial Accidents, op. cit, at 548). As noted earlier, because criminal laws are not occupational health and safety standards, States need not comply with section 18 before being able to prosecute and impose criminal sanctions.

Having concluded that Federal regulation of workplace safety does not occupy the field, we next consider appellants’ arguments that State enforcement of criminal laws in the workplace conflicts with the Federal scheme and is preempted for that reason. We do not accept the appellants’ argument that Congress’ foremost purpose in drafting the Act was to ensure uniformity of workplace health and safety standards and that individual State prosecutions stand as an obstacle to the accomplishment of that purpose. The Act’s detailed provisions for the exercise of State jurisdiction over workplace concerns, when considered together with the savings clause, indicate to us that Congress was willing to accept a multiplicity of regulatory approaches provided that the safety and health of workers were not compromised. We believe that Congress’ concern was not uniformity per se; rather, it was ensuring a minimum level of workplace safety that individual States could supplement through the submission and approval of their own regulatory plans. Our reading of the Act is borne out by the legislative history of this statute (see, 116 Cong Rec 38,392 [statement of Rep Karth]; 116 Cong Rec 37,325 [statement of Sen Williams]; 116 Cong Rec 36,521 [statement of Sen Saxbe]), which reveals that Federal lawmakers were concerned in part about the "race for the bottom” that occurred when States were responsible for setting their own occupational health and safety standards. Members of Congress, noting the inadequacy of most State efforts to regulate occupational health and safety, observed that there were distinct economic disadvantages attached to aggressive State regulation of occupational health and safety issues. Because States that adopted stringent workplace standards would lose industry to States with less stringent standards, States had no incentive to adopt strict legislation.

In that uniformity does not appear to have been Congress’ primary goal in enacting the Act, we believe that State enforcement of criminal law does not conflict with Federal law by "standing] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (Hines v Davidowitz, 312 US 52, 67, supra.) In fact, criminal prosecutions under State criminal law would seem to further the goal of ensuring the safety and health of American workers by deterring future instances of criminally culpable employer conduct. We agree with the Appellate Division that appellants’ concern that an employer could fully comply with Federal standards while still being subject to the Penal Law is a "hollow one” (151 AD2d 133, 140).

In addition, we do not believe that it is a physical impossibility to comply with both State and Federal law in this area, which is the second ground for a finding of conflict preemption. The Act does not require an employer to engage in conduct that is prohibited by the State of New York, nor is the reverse true.

Finally, we would conclude by noting that our holding today is consistent with decisions from the Supreme Courts of Illinois and Michigan, which have already considered this same issue (People v Hegedus, 432 Mich 598, 443 NW2d 127 supra; People v Chicago Magnet Wire Corp., 126 111 2d 356, 534 NE2d 962, supra; but see, Sabine Consol, v State of Texas, 756 SW2d 865 [Tex App]).

We have considered the appellants’ remaining arguments and we find them to be without merit. Accordingly, the order of the Appellate Division should be affirmed.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed.


text:
    In the Matter of Peat Marwick Main & Co., Formerly Known as Peat Marwick Mitchell & Co., Appellant, v New York City Department of Finance et al., Respondents.
    Argued September 12,1990;
    decided October 18, 1990

      POINTS OF COUNSEL

      Roy F. Hutton, Leonard D. Novello, John A. Shutkin and Myron Weinberg for appellant.
    Victor A. Kovner, Corporation Counsel (Amy F. Nogid, Edith I. Spivack, Edward F. X. Hart and Stanley Buchsbaum of counsel), for respondents.

      Boris Kostelanetz, Robert S. Fink and Catherine L. Redlich for New York State Society of Certified Public Accountants, amicus curiae.

   OPINION OF THE COURT

Chief Judge Wachtler.

Petitioner Peat Marwick Main & Co. is a national accounting firm with an office in New York City. From 1974 through 1985, Peat Marwick was a party to a series of three-year agreements with the operator of Madison Square Garden entitling Peat Marwick to the use of a luxury skybox during all events held in the Garden for which tickets were sold to the public.

In 1987, respondent Department of Finance determined that the sums paid by petitioner for use of the skybox were subject to New York City’s commercial rent or occupancy tax and assessed deficiencies against petitioner totaling over $158,000, including interest. Petitioner commenced this article 78 proceeding challenging the determination, arguing that the tax was not applicable and, in the alternative, that imposition of the tax was time barred with respect to certain of the tax years in issue.

Supreme Court granted the petition and annulled the determination, holding that the commercial rent or occupancy tax was not applicable to payments for use of the skybox. The court reasoned that the payments should not be considered "rent” within the meaning of the tax statute but should be viewed instead as the purchase of "admission to an unknown number of events” (139 Misc 2d 1093, 1096). In addition, the court concluded that petitioner’s use of the skybox was not commercial activity subject to the tax.

The Appellate Division reversed and reinstated the Department’s determination, holding that the agreement for the use of the box was a lease, that the box was used for commercial activity and was therefore taxable premises and that, because petitioner had not furnished any information about its use of the skybox on its commercial rent tax returns, the three-year Statute of Limitations contained in the tax statute was not applicable (155 AD2d 239).

We granted petitioner’s motion for leave to appeal and now reverse.

The New York City commercial rent or occupancy tax applies to any "premises in the city occupied, used or intended to be occupied or used for the purpose of carrying on or exercising any trade, business, profession, vocation or commercial activity” (Administrative Code of City of New York § 11-701 [5]). The Department of Finance argues that the skybox constituted taxable premises because petitioner used the facility to entertain clients and employees. In addition, the Department notes that petitioner deducted the payments as business expenses in its Federal tax returns and that one of the agreements with Madison Square Garden called for petitioner to pay the tax if it was applicable.

We agree with petitioner, however, that the provision in the agreement has no bearing on whether the tax should be applicable; it merely allocates the responsibility for the tax as between petitioner and Madison Square Garden if it is applicable — an open question under the agreement. Similarly, petitioner’s deduction of the payments as a business expense for Federal income tax purposes does not require a finding that the premises were used for commercial activity within the meaning of the City’s commercial rent tax statute (Matter of Penney Co. v Lewisohn, 40 AD2d 67, 69, affd 33 NY2d 528).

Furthermore, although petitioner’s use of the facility concededly had a business purpose, that is not enough to bring the premises within the scope of the tax (id.). The skybox was available and was used only during the sports and entertainment events held in the Garden. Admission to those events, with the amenities and conveniences to make their viewing more comfortable, was the essence of the agreements. That petitioner may have chosen its guests for business advantage is not enough to render the premises subject to the commercial rent tax.

While it is true that entertaining business associates, clients or employees would fall within a broad definition of "commercial activity”, that approach would extend the tax to unreasonable lengths; it would, for example, reach the residential apartment where business associates are occasionally entertained. There is no indication in the statute’s language or history that the tax was intended to have such a broad reach.

The distinction between taxable commercial activity and nontaxable social activity with business benefits is not easily drawn, and we make no attempt here to establish a comprehensive standard to govern future cases. It would be inappropriate to do so in the context of the narrow facts presented in this case. At the very least, however, the ordinary meaning of the words used in the statute — "premises * * * occupied or used for the purpose of carrying on or exercising any trade, business, profession, vocation or commercial activity” (Administrative Code § 11-701 [5]) — suggest that the tax was intended to apply to premises where an integral part of a commercial enterprise is carried out.

In light of our conclusion that the premises were not used for commercial activity, we need not reach and express no opinion as to the other issues raised by the parties.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order and judgment of Supreme Court, New York County, reinstated.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.