author: Simons, J. Kaye, J.

text:
    The People of the State of New York, Respondent, v James Sailor, Also Known as Leroy Cooper, Appellant.
    Argued March 20, 1985;
    decided June 4, 1985

      POINTS OF COUNSEL

      David B. Weisfuse and Stephen J. Pittari for appellant.
    I. The double jeopardy clause of the United States and New York Constitutions applies to trial-like enhancement of punishment proceedings based on prior convictions. (Estelle v Bullard, 457 US 1116; Bullington v Missouri, 451 US 430; People v Maldonado, 82 AD2d 576; Linam v Griffin, 685 F2d 369; Knapp v Cardwell, 667 F2d 1253; United States v DiFrancesco, 449 US 117.) II. The doctrine of collateral estoppel as part of the double jeopardy clause as well as the State doctrine of collateral estoppel bars relitigation at a second felony offender hearing of convictions resolved in defendant’s favor at a previous persistent felony offender hearing. (People ex rel. Dowdy v Smith, 48 NY2d 477; Ashe v Swenson, 397 US 436; Helvering v Mitchell, 303 US 391; People v Plevy, 52 NY2d 58; People v Berkowitz, 50 NY2d 333; People v Dreares, 11 NY2d 906; United States v Mespoulede, 597 F2d 329; Albert v Montgomery, 732 F2d 865; People v Blando, 29 AD2d 689; People v Abbott, 113 Misc 2d 766.) III. It was irrelevant under the double jeopardy clause whether the trial court committed an alleged legal or evidentiary error in reaching its finding of acquittal. (People ex rel. Dowdy v Smith, 48 NY2d 477; People v Havelka, 45 NY2d 636; People v Plevy, 52
      NY2d 58; Sanabria v United States, 437 US 54; Matter of Frank K., 87 AD2d 1003.) IV. The People did not preserve their arguments of collateral estoppel and purported lack of jurisdiction which were raised for the first time on appeal. The trial court clearly had jurisdiction after the reversal by the court below and remand for a new hearing. (People v Dodt, 61 NY2d 408; Wardius v Oregon, 412 US 470; People v Hoke, 62 NY2d 1022; People v Gonzalez, 55 NY2d 720; People v Ercole, 4 NY2d 617; United States v Lawson, 736 F2d 835; People v Malizia, 62 NY2d 755.) V. The conviction for attempted robbery in Florida was not the equivalent of a New York felony since it could constitute the misdemeanor of attempted grand larceny in the third degree in New York. (People v Gonzalez, 61 NY2d 586.)

      Carl A. Vergari, District Attorney (Richard E. Weill and Gerald D. Reilly of counsel), for respondent.
    I. Appellant’s resentencing implicated neither the double jeopardy clause nor the doctrine of collateral estoppel. (North Carolina v Pearce, 395 US 711; People v Rivera, 60 NY2d 110; Brown v Ohio, 432 US 161; Ashe v Swenson, 397 US 436; People ex rel. Dowdy v Smith, 48 NY2d 477; United States v DiFrancesco, 449 US 117; People v Maldonado, 82 AD2d 576, 55 NY2d 751; Matter of Roballo v Smith, 63 NY2d 485; Bullington v Missouri, 451 US 430; Knapp v Cardwell, 667 F2d 1253, 459 US 1055; Linam v Griffin, 685 F2d 369.) II. Appellant’s 1969 Florida judgment of conviction for the crime of attempted robbery satisfies the requirements of Penal Law § 70.06 (1) (b) (i).
   OPINION OF THE COURT

Simons, J.

Defendant has been convicted after trial of several offenses arising out of a 1978 bank robbery. He does not contest the validity of these convictions; rather, he insists that the sentence imposed upon him as a second felony offender violates the double jeopardy clause of both the United States Constitution (US Const 5th amend), made applicable to the States through the 14th Amendment (US Const 14th amend; see, Benton v Maryland, 395 US 784), and the New York State Constitution (NY Const, art I, § 6). This is so, he claims, because County Court used a 1969 Florida conviction for attempted robbery as a predicate felony when it sentenced him although the prosecution had failed to prove his identity as the subject of that judgment in a prior persistent felony offender hearing. We affirm the judgment and hold that the protections embodied in the double jeopardy clauses of the Federal and State Constitutions do not apply to these enhanced sentencing proceedings required under New York’s second and persistent felony offender statutes (Penal Law §§ 70.06, 70.10).

Following defendant’s trial in 1979, County Court determined that enhanced sentencing might be appropriate because of defendant’s prior record and it conducted a persistent felony hearing for that purpose (CEL 400.20). At the hearing defendant admitted that he had previously been convicted in Florida of attempted robbery and aggravated assault in 1969 and escape in 1971 although the convictions were in the name of Leroy Cooper. The court found defendant to be a persistent felony offender and sentenced him accordingly. On appeal, the Appellate Division affirmed defendant’s convictions but vacated his sentence because the court had failed to give defendant prior notice, as the statute requires, of a factor in his background which it relied upon in making its determination that a persistent felony offender sentence was warranted (see, People v Sailor, 85 AD2d 746). It remitted the matter for resentencing.

On remittal, County Court issued a new persistent felony offender statement (see, CPL 400.20 [3]) setting forth the identical Florida convictions that had served as the basis for the previous determination and ordered another hearing. This time, however, defendant denied that he was the subject of these prior Florida convictions and announced that he would put “the People to the burden of proving that he is the same person” as Leroy Cooper. At the hearing which followed, the People introduced certificates of defendant’s 1969 and 1971 Florida convictions and they then attempted to prove that Leroy Cooper was the defendant by introducing defendant’s FBI rap sheet and a certified copy of the transcript of the prior persistent felony offender hearing at which defendant had admitted the convictions. The court rejected the identity evidence because it found both documents constituted hearsay and were inadmissible. The prosecution offered no further proof and the court found that defendant was not a persistent felony offender because the People had failed to prove that he was the subject of the prior Florida convictions.

Before sentence was imposed, the prosecution filed a predicate felony conviction statement alleging the same Florida convictions that had been the subject of defendant’s two prior persistent felony offender hearings and sought to have defendant adjudged a second felony offender (see, CPL 400.21 [2]; Penal Law § 70.06). At the preliminary examination that followed, defendant objected to the proceeding on grounds of double jeopardy and collateral estoppel because the People were using the same convictions that they had failed to prove in the earlier persistent felony offender hearing. The court rejected these contentions and ordered a hearing. Following the hearing, the court found that the prosecution had proved that defendant was convicted of attempted robbery in Florida in 1969 and that the conviction constituted a proper predicate felony conviction and it sentenced defendant as a second felony offender.

Defendant asserts that the constitutional guarantees against double jeopardy prevent the prosecution from subjecting him to a second felony offender hearing on the basis of the same convictions that the People failed to prove at his prior persistent felony offender hearing. He also contends that the common-law doctrine of collateral estoppel precludes the People from relitigating whether he and Leroy Cooper are one and the same person but that even if constitutional double jeopardy and common-law collateral estoppel principles do not operate to bar imposition of the second offender sentence he has received, he still must be sentenced as a first offender because his 1969 Florida conviction for attempted robbery is not the equivalent of a New York felony and therefore is not a proper predicate for the second offender sentence.

I

The collateral estoppel claim must be resolved first because if the litigation can be resolved on that ground the constitutional claim should not be addressed (see, Matter of Beach v Shanley, 62 NY2d 241, 254; People v Felix, 58 NY2d 156, 161).

Collateral estoppel principles, as they exist independent of the prohibition against double jeopardy, apply to criminal as well as civil actions, but because of the different interests involved, they are applied with greater flexibility in criminal matters than in civil litigation (see, People v Plevy, 52 NY2d 58, 64-65; People v Berkowitz, 50 NY2d 333, 344-345; People ex rel. Dowdy v Smith, 48 NY2d 477, 482-484). Society’s primary interest in civil disputes is that they be decided in a peaceful, orderly and impartial manner. Thus litigation-limiting estoppel principles are applied liberally in civil litigation. They are not so readily applied in criminal litigation, however, because in those matters society is concerned not only with seeing that guilt or innocence is established but that it is established correctly. Collateral estoppel should not preclude the prosecution in this case from relitigating defendant’s prior felony convictions at the second felony offender hearing because: (1) there was no final judgment rendered in the prior hearing (compare, People v Plevy, supra, at p 64, with Matter of McGrath v Gold, 36 NY2d 406, 412); (2) the prosecution could not, as a matter of law, appeal the discretionary persistent felony offender determination (see, CPL 450.30 [2]; Restatement [Second] of Judgments § 28 [1]); (3) the prosecution did not receive a full and fair adjudication of the issue in the persistent felony offender hearing because the court erroneously excluded evidence of defendant’s formal judicial admission, an exception to the hearsay rule (see, Richardson, Evidence § 216, at 191-193 [Prince 10th ed]) and (4) arguably the determination concerning the prior attempted robbery conviction was not essential to the determination of two or more prior felonies at the persistent felony offender hearing; the same finding would have been required if the other two prior convictions were not proved (see, Penal Law § 70.10 [1] [a]). We proceed, therefore, to defendant’s constitutional claim.

JL

The constitutional guarantee against double jeopardy provides protection against successive prosecutions for the same offense and against multiple punishments for the same offense (United States v DiFrancesco, 449 US 117, 129, quoting North Carolina v Pearce, 395 US 711, 717). Accordingly, it has had only limited application to sentencing until recently (see, United States v DiFrancesco, supra, at pp 133-135). In Bullington v Missouri (451 US 430) and Arizona v Rumsey (467 US 203,104 S Ct 2305, 81 L ed 2d 164), however, the United States Supreme Court held that the protections embodied in the double jeopardy clause of the 5th Amendment apply to trial-type determinations of punishment. Because these decisions are central to defendant’s argument, we analyze them in some detail.

The issue in Bullington was whether or not the State could seek the death penalty at retrial after the defendant had been sentenced to life imprisonment at the punishment phase of his first trial. The court noted that it was “well established that the Double Jeopardy Clause forbids the retrial of a defendant who has been acquitted for the crime charged” but that this principle had not been extended to sentencing decisions because “[t]he imposition of a particular sentence usually is not regarded as an ‘acquittal’ of any more severe sentence that could have been imposed” (Bullington v Missouri, 451 US 430, 437-438, supra; see also, United States v DiFrancesco, 449 US 117, 129-130, supra). It found, however, that the sentencing procedures required by the Missouri death penalty statute differed “significantly” from those employed in its prior double jeopardy-sentencing decisions in three material ways. First, the “unbounded discretion” that normally applied to sentencing decisions was replaced by only two alternatives, death or life imprisonment without parole for 50 years. Second, the statute provided specific substantive standards to guide the jury’s choice of the appropriate punishment in the form of 10 aggravating and 7 mitigating circumstances. Third, the statute provided certain procedural safeguards, the most significant of which was that the prosecution had the burden of proving “beyond a reasonable doubt” the existence of at least one aggravating circumstance not outweighed by mitigating circumstances (Bullington v Missouri, supra, at p 438).

The court distinguished its only prior decision involving a bifurcated sentencing proceeding, United States v DiFrancesco (449 US 117, supra). The court held that DiFrancesco, which involved a government appeal of a sentence imposed under the Federal “dangerous special offender” statute (see, 18 USC §§ 3575-3576), was not on point because (1) it involved appellate review rather than a de novo fact finding, (2) the sentencer, a Federal Judge, had a large amount of discretion in imposing sentence and (3) the prosecution’s burden there was merely a preponderance of the evidence (Bullington v Missouri, supra, at pp 440-441).

Instead, the court relied on Burks v United States (437 US 1) and Green v United States (355 US 184), and it distinguished North Carolina v Pearce (395 US 711, supra) in which it had held that imposition of a more severe sentence on retrial following the reversal of a conviction does not violate double jeopardy (id., at p 723). Burks held that a defendant may not be retried if the reversal of his conviction is based on an appellate finding of insufficient evidence to convict (Burks v United States, supra, at p 18). Green held that double jeopardy barred retrying a defendant on a charge of first degree murder after an appellate reversal of his conviction, when the jury at the first trial had convicted him only of the lesser included offense of second degree murder (Green v United States, supra, at p 190). Thus, the Bullington court stated that Burks and Green stand for the proposition that Pearce “is inapplicable whenever a jury agrees or an appellate court decides that the prosecution has not proved its case” (Bullington v Missouri, 451 US 430, 443, supra). Because the capital sentencing hearing in Bullington was like a trial on the issue of punishment and the jury was required to determine whether the prosecution had “proved its case”, the court found that Burks and Green, rather than Pearce, applied and mandated the conclusion that the defendant’s sentence of life imprisonment at his first trial was an implicit acquittal of the death penalty (id., at pp 444-445). This implicit acquittal, like all acquittals, was entitled to absolute finality, the court said, because the “embarrassment, expense and ordeal” and the “anxiety and insecurity” that the defendant faced at the punishment phase of his first trial was at least as great as that faced at the guilt phase of his trial (id., at p 445).

Similarly, in Arizona v Rumsey (467 US 203,104 S Ct 2305, 81 L ed 2d 164, supra), the Supreme Court concluded that the double jeopardy clause prohibited the State of Arizona from sentencing the defendant to death after his original sentence of life imprisonment was set aside. Arizona, like Missouri, provides a bifurcated proceeding in cases involving capital murder. Following conviction, the Trial Judge conducts a separate sentencing hearing without a jury to determine whether death or life imprisonment without possibility of parole for 25 years is the appropriate punishment. The prosecution has the burden of proving beyond a reasonable doubt the existence of at least one statutory aggravating circumstance and that mitigating circumstances, if any exist, are not sufficiently substantial to call for leniency. If it does so, imposition of the death penalty is mandatory (id.; Arizona v Rumsey, 467 US_, 81 L ed 2d 164, 169, 170-171, supra). The Supreme Court found “the Arizona capital sentencing proceeding indistinguishable for double jeopardy purposes from the capital sentencing proceeding in Missouri” and therefore concluded that its decision in Bullington “squarely controlled] the disposition of this case” (id., at pp_, _, at pp 171, 167).

Defendant asserts that the rationale of Bullington and Rumsey is sufficiently broad to apply to New York’s persistent felony offender and second felony offender proceedings and bar the prosecution from seeking a determination that he is a second felony offender on the basis of convictions it failed to prove at his earlier persistent felony offender hearing. We find significant reasons, however, for refusing to extend Bullington to the New York enhanced sentencing procedures.

Most importantly, there is a fundamental difference between the imposition of the death penalty for capital murder in Bullington and Rumsey and the imposition of enhanced sentences for felons who have a record of prior felony convictions. Essentially, the punishment of death is part and parcel of the substantive offense of capital murder (see, Linam v Griffin, 685 F2d 369, 375 [10th Cir], cert denied 459 US 1211) in which the existence of certain aggravating circumstances elevate the crime charged from murder punishable by life imprisonment to murder punishable by death. Nine of the 10 aggravating circumstances which the prosecution could have placed before the jury in Bullington to determine whether the death penalty was appropriate concerned the manner in which the underlying murder had been committed, as were 6 of the 7 mitigating circumstances (see, Mo Rev Stat Ann former § 565.012 [2] [2]-[10]; § 565.012 [3] [2]-[7]). Similarly, 6 of the 8 aggravating circumstances and all 5 of the mitigating circumstances to be considered by the court in Rumsey in determining whether to impose death involved the gravity of the homicide committed (see, Ariz Rev Stat Ann § 13-703 [F] [3]-[8]; § 13-703 [G] [l]-[5]). The court implicitly recognized in these decisions that the death penalty was part of the substantive offense of murder. In Rumsey, the court stated unequivocally that the double jeopardy principle involved in both cases was that “an acquittal on the merits by the sole decisionmaker in the proceeding is final and bars retrial on the same charge” (Arizona v Rumsey, 467 US 203, 81 L ed 2d 164, 171, supra [emphasis added]). In Bullington the court relied on Green v United States (355 US 184, supra) which involved the application of double jeopardy principles to the implicit acquittal of the greater offense upon conviction of the lesser-included offense. Thus, the factors to be considered by the Bullington and Rumsey fact finders in imposing the penalty of death were not unlike those typical, additional elements of a crime which elevate it to a higher class of offense and in such cases the protections afforded by the double jeopardy clause must be provided (cf. Brown v Ohio, 432 US 161).

To contrast, New York’s persistent felony offender and second felony offender statutes are concerned solely with a defendant’s prior criminal record, and, in the case of a persistent felon, “factors in the defendant’s background and prior criminal conduct which the court deems relevant for the purpose of sentencing the defendant as a persistent felony offender” (CPL 400.20 [3] [b]; see, Penal Law § 70.06 [1]; § 70.10 [1]). Manifestly, the Legislature did not intend these prior convictions to be used as aggravating elements of the substantive offense elevating it to a higher class because when it has sought to do so it has said so (see, e.g., Penal Law §§ 165.06,165.15,190.42,220.55, 235.06, 240.60, 240.31 [2]; § 265.01 [4]; § 265.02 [1]; § 265.02 [5] [ii]; Vehicle and Traffic Law § 1192 [5]). As we have previously noted “[classification as a persistent felony offender [or second felony offender] is not a separate offense” and sentencing under the persistent felony offender and second felony offender statutes “does not change the class of the underlying conviction” (Matter of Roballo v Smith, 63 NY2d 485, 489, n 3; see, Penal Law §§ 70.06, 70.10).

This conclusion, that there is a qualitative and quantitative difference between imposition of the death penalty and sentencing as a persistent or second felony offender, is emphasized by the fact that the court’s decision in Bullington was based in part on its conclusion that “[t]he ‘embarrassment, expense and ordeal’ and the ‘anxiety and insecurity’ faced by a defendant at the penalty phase of a Missouri capital murder trial surely are at least equivalent to that faced by any defendant at the guilt phase of a criminal trial” (Bullington v Missouri, 451 US 430, 445, supra). The same cannot be said, however, for a defendant facing sentence as a second felony offender or as a persistent felon where life imprisonment may result because, as this court has recognized, “death, ‘in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two’ ” (People v Smith, 63 NY2d 41, 72-73, quoting Woodson v North Carolina, 428 US 280, 305). This is especially so because death could have been imposed under the Missouri statute considered in Bullington on a first offender whereas New York’s persistent felon statute presupposes previous periods of substantial incarceration and the second felony offender law is predicated on a prior felony conviction. Thus, a defendant’s anxiety in facing an enhanced sentence under either law is necessarily diminished by his prior experience with the law. When enhanced sentencing only is involved, and not the death penalty, “[t]he defendant’s primary concern and anxiety obviously relate to the determination of innocence or guilt, and that already is behind him” (United States v DiFrancesco, 449 US 117, 136, supra).

Moreover, the distinction between death penalties and enhanced sentences is reasonable because death as a punishment is tied exclusively to commission of an underlying murder; enhanced punishment depends on prior felony convictions, which, together with one more felony conviction results in an increased sentence. The death penalty is crime specific but determinations of persistent felony offender and second felony offender status are generic to all felonies.

The Bullington court distinguished the case before it from traditional sentencing decisions by the amount of discretion vested in the trial court and the procedural safeguards accorded the defendant. The manner in which a persistent felony offender or second felony offender determination is made in New York, however, differs substantially from the method employed to determine if death was the appropriate sentence in Bullington and Rumsey. The sentencing Judge in New York retains far greater discretion than that possessed by the jury in Bullington and the Judge in Rumsey, discretion closer to that retained by the court when it makes traditional sentencing decisions. This is especially true for a persistent felon determination in which the court has broad discretion to: (1) decide whether to order a hearing notwithstanding any information it may have that defendant is a persistent felony offender (CPL 400.20 [2]); (2) terminate the hearing at any time during its pendency without making any findings (id. 400.20 [10]); and (3) refuse to impose a persistent felony offender sentence even when the evidence presented demonstrates that the defendant is a persistent felon and that sentence as such is warranted (CPL 400.20 [9]). Although the court’s discretion is somewhat less under the second felony offender procedure, it retains substantial discretion in fixing the terms of the indeterminate sentence to be imposed within statutory guidelines, contrary to Bullington and Rumsey in which only two alternatives, death or life imprisonment without parole for a significant period of time, were allowed (cf. Penal Law § 70.06 [2]-[4]). In addition, the court retains the discretion to sentence the most serious second felony offenders, class A-II and B, to lifetime probation (see, Penal Law § 70.06 [5])._

Moreover, although New York’s enhanced sentencing statutes provide procedural safeguards for defendants, they are in many respects less like the procedural safeguards at trial than those employed in the death penalty statutes at issue in Bullington and Rumsey. In a persistent felony offender hearing, for example, the prosecution need only prove by a preponderance of the evidence that a defendant’s history and character and the nature and circumstances of his criminal conduct warrant persistent felon treatment and it is not constrained by the rules of evidence applicable to a trial but may offer any legally relevant evidence (see, CPL 400.20 [5]; see also, Bullington v Missouri, 451 US 430, 441, supra; United States v DiFrancesco, 449 US 117, 136-137, supra). The defendant is required to specify the particular allegations in the persistent felon statement that he wishes to controvert and if he intends to present evidence at the hearing he must specify the nature of the evidence to be presented (see, CPL 400.20 [7]). Uncontroverted allegations in the statement of the court are deemed evidence in the record (id.). Finally, when uncontroverted allegations in the court’s statement are sufficient to support a finding that the defendant is a persistent felony offender and in the court’s opinion he should be sentenced as such, the court may impose sentence if the defendant either has no relevant evidence to present or the evidence to be presented would not affect the court’s decision (CPL 400.20 [8]). Similarly, under the second felony offender law, the defendant must specify the particular allegations that he wishes to controvert in the predicate felony statement. Unless he does so, the allegations are deemed admitted (CPL 400.21 [3]) and may serve as the basis for imposition of a second felony offender sentence without a full hearing (see, CPL 400.21 [4]). Additionally, the brief two-day notice period required before the hearing indicates that the proceeding is more formalistic than it is substantive (see, CPL 400.21 [6]).

The decisions from other jurisdictions relied on by defendant which have applied Bullington to their habitual criminal statutes are distinguishable from the case before us and the result in each follows logically from the rationale we have employed. In each case, not only did the sentencer retain substantially less discretion than that possessed by the court under New York’s enhanced sentencing procedures but, more importantly, the prior felony convictions were treated as substantive elements of the offense charged that had to be alleged in an information or indictment (see, Bullard v Estelle, 665 F2d 1347,1349, n 2,1357-1358 [5th Cir], cert granted 457 US 1116, vacated 459 US 1139, on remand 708 F2d 1020; People v Quintana, 634 P2d 413, 417, and n 2, 419 [Col]; Ex parte Augusta, 639 SW2d 481, 484 [Tex Crim App]; State v Hennings, 100 Wn 2d 379, 382-384, 388-390, 670 P2d 256, 258, 261). The habitual offender laws involved in these cases are analogous to the New York offenses previously mentioned in which a prior conviction is an element of the offense charged which must be alleged in a special information annexed to the defendant’s indictment {see, CPL 200.60 [2]). Notably, other jurisdictions have refused to apply the decision in Bullington to the habitual criminal statutes of other States on grounds similar to those relied upon here (see, Linam v Griffin, 685 F2d 369 [10th Cir], cert denied 459 US 1211, supra; Dixon v State, 437 NE2d 1318 [Ind]; State v Lee, 660 SW2d 394 [Mo Ct App]; see also, People v Maldonado, 82 AD2d 576, lv denied 55 NY2d 751 [dictum]).

It is unnecessary to decide in this appeal whether the prosecution may conduct more than one persistent felony offender or second offender hearing in the same sentencing proceeding after failing to prove the underlying convictions or conviction. The second persistent felony hearing was constitutionally permissible in this case (see, North Carolina v Pearce, 395 US 711, 720, supra; United States v Tateo, 377 US 463, 465-466) and constitutional double jeopardy requirements did not bar a second felony offender proceeding after a failure of proof in the second persistent felony proceeding.

Practical considerations also warrant our conclusion because arguably extension of the double jeopardy clause to enhanced sentencing proceedings such as New York’s persistent felony offender and second felony offender hearings would seemingly mean that a failure to prove a defendant’s previous felony conviction for any reason, even prosecutorial mistake or carelessness, unrelated to the truth of such prior convictions, which are matters of public record, would forever bar the use of that prior conviction in any subsequent enhanced sentencing proceeding.

Ill

Finally, defendant contends that his 1969 conviction in Florida for attempted robbery is not an appropriate predicate felony conviction for purposes of sentencing him as a second felony offender in New York. To qualify as such, the out-of-State conviction must be for an offense that carries with it a sentence of imprisonment in excess of one year and for which New York law would also authorize imposition of a sentence in excess of one year (Penal Law § 70.06 [1] [b] [i]; see, People v Gonzalez, 61 NY2d 586, 589). In other words the out-of-State conviction must be for an offense which if committed in New York would be a felony (People v Gonzalez, supra, at p 589). Defendant contends that his Florida conviction for attempted robbery would amount to no more than attempted grand larceny in the third degree in New York, a misdemeanor (see, Penal Law § 155.30 [5], [6]; § 110.05 [7]).

The Florida robbery statute under which defendant was convicted provided: “Whoever, by force, violence or assault or putting in fear, feloniously robs, steals and takes away from the person or custody of another, money or other property which may be the subject of larceny, shall be *** punishable by imprisonment in the state prison for life or for any lesser term of years, at the discretion of the court” (Fla Stat Ann former § 813.011). Defendant interprets this statute as authorizing a conviction where the victim is only put in fear and has his property taken away btit the criminal does not actually use force as required under New York’s third degree robbery statute (see, Penal Law §§ 160.00, 160.05). Defendant’s reliance on Flager v State (198 So 2d 313 [Fla]) for this interpretation is unfounded because in that case the Supreme Court of Florida held no more than that outward manifestations of fear are not required to show that the victim had been put in fear; it did not address the issue raised here. In McCloud v State (335 So 2d 257 [Fla]), however, it did address this issue and held that force was required to convert larceny to robbery {id., at pp 258-259). Thus, defendant’s conviction of attempted robbery in Florida was at least the equivalent of a conviction in New York of attempted robbery in the third degree, a class E felony {see, Penal Law §§ 160.05,160.00,110.05 [6]), and he was properly sentenced as a second felony offender.

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

Kaye, J.

(dissenting). Under Bullington v Missouri (451 US 430) and Arizona v Rumsey (467 US 203, 104 S Ct 2305), the determination of whether the double jeopardy clause applies to a sentencing proceeding turns on the extent to which the proceeding resembles a trial. The majority complicates this clearly defined test by adding to it an analysis of whether the factors considered at sentencing relate to the principal offense. It then examines the persistent felony offender statute, emphasizing the areas where the procedure differs from a trial but disregarding the significant similarities between the two. In my view, the procedure established for sentencing a defendant as a persistent felon bears sufficient resemblance to a trial to subject it to the constraints of the double jeopardy clause, and I therefore respectfully dissent.

As recognized by the majority, the double jeopardy clause is normally inapplicable to sentencing proceedings because the imposition of sentence is not usually regarded as an acquittal of a more severe sentence (Bullington v Missouri, 451 US 430, 438, supra; see also, North Carolina v Pearce, 395 US 711). Under the traditional sentencing proceeding, involving unbounded discretion of the sentencer, one could not consider a sentence less than the maximum as an indication that the prosecutor had failed to prove its case (Bullington v Missouri, supra, at p 443). However, in Bullington, the Supreme Court held that the double jeopardy clause applied to Missouri’s capital sentencing scheme. Under Missouri law, where the defendant is found guilty of capital murder, the trial court conducts a separate hearing to determine whether to impose a sentence of death or life imprisonment. Before the death penalty may be imposed, the jury must consider aggravating and mitigating circumstances and must find beyond a reasonable doubt that aggravating circumstances warrant capital punishment. However, the jury has discretion to sentence the defendant to life imprisonment even if it finds the evidence of aggravating circumstances sufficient. The court stressed the similarity of this proceeding to a trial: “The jury in this case was not given unbounded discretion to select an appropriate punishment from a wide range authorized by statute. Rather, a separate hearing was required and was held, and the jury was presented both a choice between two alternatives and standards to guide the making of that choice. Nor did the prosecution simply recommend what it felt to be an appropriate punishment. It undertook the burden of establishing certain facts beyond a reasonable doubt in its quest to obtain the harsher of the two alternative verdicts. The presentence hearing resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence. It was itself a trial on the issue of punishment”. {Id., at p 438.)

In Bullington the court distinguished prior cases where the double jeopardy clause was held not to apply to sentencing because the procedures in those cases “did not have the hallmarks of the trial on guilt or innocence” (id., at p 439). Unlike the traditional sentencing procedure, Missouri’s capital sentencing scheme did require the sentencer to determine whether the prosecution had proved its case and thus was subject to the double jeopardy clause.

The determinative question, therefore, is whether the sentencing proceeding resembles a trial. This rationale was confirmed in Arizona v Rumsey (467 US 203, 104 S Ct 2305, 2311, supra) where the court pointedly stated, “Bullington v. Missouri held that double jeopardy protections attach to Missouri’s capital sentencing proceeding because that proceeding is like a trial.” In Rumsey, the court found the second capital sentencing proceeding barred by the double jeopardy clause because the Arizona scheme “shares the characteristics of the Missouri proceeding that make it resemble a trial for purposes of the Double Jeopardy Clause” (id., at p 2310).

The majority obscures this rationale by stating the question as whether the factors at issue at the sentencing proceeding are related to the substantive offense. On this basis, the court distinguishes Bullington. It notes that of the 10 aggravating circumstances and 7 mitigating circumstances set out in the Missouri statute to be considered at the penalty proceeding, 9 aggravating circumstances and 6 mitigating circumstances concern the manner in which the underlying crime was committed. The issues at the persistent felony offender hearing in this case, argues the majority, are unrelated to the predicate offense.

The majority’s reasoning is supported neither by the articulated basis of Bullington nor by its facts. Bullington held that double jeopardy attaches to a sentencing proceeding which resembles a trial. The court did not rely on the relationship of aggravating and mitigating circumstances to the manner in which the underlying crime was committed. Indeed, at the sentencing proceeding in Bullington, the defense offered no evidence in mitigation and the prosecutor relied on only two aggravating circumstances, “that ‘[t]he offense was committed by a person * * * who has a substantial history of serious assaultive criminal convictions,’ * * * and that ‘[t]he offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind’ ” (Bullington v Missouri, supra, at p 435). Only the latter relates to the offense. The former concerned the defendant’s prior record, the precise type of issue presented here, and has no relation to the principal offense. Thus, the issues at the sentencing hearing in Bullington were not as tied to the substantive offense as the majority suggests.

The failure of the Supreme Court to rest its decision on the grounds advanced by the majority is hardly surprising. The double jeopardy clause protects a defendant from multiple exposure to the embarrassment, expense, ordeal, anxiety and insecurity associated with a trial-like procedure. It avoids the unacceptably high risk that the prosecution, with its superior resources, would wear down the defendant, thereby leading to an erroneously imposed sentence (id., at p 445). These interests are not diminished because the facts to be proven at the sentencing hearing relate to the number of years defendant will spend in prison rather than the crime itself.

Thus, the question on this appeal is whether New York’s persistent felony offender procedure resembles a trial to the extent that a fact finder is required to determine whether the People have proved their case.

In essence, a persistent felony offender is a person who stands convicted of a felony after having previously been convicted of two or more felonies (Penal Law § 70.10 [1]). A person adjudicated a persistent felony offender is sentenced as if he had been convicted of a class A-l felony (Penal Law § 70.10 [2]). The procedure for imposing this enhanced sentence is governed by CPL 400.20.

When circumstances indicate that a persistent felony offender sentence may be warranted, the court may order a hearing (CPL 400.20 [2]). The court must annex to this order a statement specifying the dates and places of the previous convictions and the factors in the defendant’s background which the court considers relevant for sentencing (CPL 400.20 [3]). The defendant is provided with a copy of the statement in advance of the hearing (CPL 400.20 [4]).

At the hearing, the People have the burden of establishing the two components of a persistent felony offender adjudication. First, the prosecution must prove that defendant is a persistent felony offender as defined in Penal Law § 70.10 by “proof beyond a reasonable doubt by evidence admissible under the rules applicable to the trial of the issue of guilt” (CPL 400.20 [5]). Second, the People must prove by a preponderance of the evidence that “the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest” (CPL 400.20 [1], [5]). Matters concerning the defendant’s history and character and the nature of his criminal conduct may be established by any nonprivileged relevant evidence (CPL 400.20 [5]).

When the hearing concludes, the court must make a finding, based on evidence in the record of the hearing, as to whether the defendant is a persistent felony offender. In the event the defendant is found, beyond a reasonable doubt, to be a persistent felony offender, the court must máke such findings as it deems relevant to the question of whether a persistent felony offender sentence is warranted (CPL 400.20 [9]). The court is permitted, however, to terminate the hearing in its discretion without making findings, in which case the defendant may not be sentenced as a persistent felony offender (CPL 400.20 [10]).

While there are concededly differences, this proceeding on the whole bears a marked similarity to a trial on the issue of guilt or innocence. The purpose of the hearing is to provide the court with the opportunity to choose between two options — whether or not to sentence the defendant as a persistent felony offender. The court has no discretion in determining whether the defendant is a persistent felony offender. The discretion as to the history and character of the defendant is not dissimilar to that exercised by the sentencer in Bullington v Missouri (supra, at pp 434-435) to sentence the defendant to life imprisonment even though aggravating circumstances justify the death penalty. As in Rumsey, the sentencer must make findings and the sentencing hearing involves the submission of evidence and, necessarily, the presentation of argument (Arizona v Rumsey, supra, at p 2310).

As to the standard of proof, the majority conspicuously ignores perhaps the most important aspect of the persistent felony offender sentencing procedure. The court notes, “In a persistent felony offender hearing, for example, the prosecution need only prove by a preponderance of the evidence that a defendant’s history and character and the nature and circumstances of his criminal conduct warrant persistent felon treatment and it is not constrained by the rules of evidence applicable to a trial but may offer any legally relevant evidence”. (Majority opn, at p 235.) However, it fails to mention that the prosecutor must prove the defendant’s commission of the prior felonies beyond a reasonable doubt by evidence admissible at a trial. This failure is especially troublesome since at issue here is the prosecution’s failure to make this very showing. As acknowledged by the Supreme Court in both Bullington and Rumsey, the reasonable doubt standard, the same one required to be used at a trial on the issue of guilt or innocence, is a significant indication that the double jeopardy clause should apply to the sentencing procedure.

Finally, the majority distinguishes Bullington and Rumsey because of the added anxiety and insecurity suffered by a defendant in a capital sentencing proceeding as compared to the habitual offender sentencing proceeding. The ordeal attending the imposition of the death penalty surely cannot be matched, but neither can the anxiety experienced by a defendant at a persistent felony offender proceeding be dismissed as insignificant. The minimum sentence which can be imposed on a persistent felon is a prison term of 15 years to life, and the term can be as much as 25 years to life (Penal Law §§ 70.00, 70.10). A person convicted of the same underlying offense and sentenced as a nonpersistent felon could receive a sentence not involving incarceration. Here, where the underlying crime was a class B felony, the permissible sentence for a nonpersistent felon ranged from 2 to 6 years, to 12Vfe to 25 years (Penal Law §§ 70.00, 70.06). The difference cannot be considered so insignificant as to vitiate double jeopardy protection.

In sum, the persistent felony offender procedure requires the People to prove .beyond a reasonable doubt at a separate hearing that the defendant is a predicate felon. No principled distinction exists between this procedure and those considered in Bulling-ton and Rumsey.

Chief Judge Wachtler and Judges Jasen and Alexander concur with Judge Simons; Judge Kaye dissents and votes to reverse in a separate opinion in which Judge Meyer concurs; Judge Titone taking no part.

Order affirmed.

      . After the defendant in Bullington was sentenced to life imprisonment, his motion for a new trial was granted on the basis of Duren v Missouri (439 US 357) in which the United States Supreme Court held that Missouri’s automatic exemption for women from jury service violated the 6th and 14th Amendments.

      . The dissent maintains that we have obscured the rationale of Bullington “by stating the question as whether the factors at issue at the sentencing proceeding are related to the substantive offense.” (Dissenting opn, at p 239.) The issue clearly is whether double jeopardy principles are applicable to New York’s enhanced sentencing proceedings. We find it significant, however, in distinguishing Bullington and Rumsey, that those cases involved bifurcated death penalty proceedings in which the determinative sentencing factors were so closely related to commission of the underlying offense of murder that the punishment imposed was essentially part of the offense.

      . Contrary to the position taken by the dissent (see, dissenting opn, at p 241), the Legislature expressly provided that the court has discretion to terminate the persistent felony offender hearing “[a]t any time during the pendency of a hearing” (CPL 400.20 [10]; emphasis added; see, Bellacosa, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 400.20, p 228; Pitler, New York Criminal Practice Under the CPL, at 733). This includes, of course, the discretion to terminate the hearing without making a finding whether the defendant is a persistent felon as well as terminating the hearing prior to a determination whether the defendant’s history and character warrant an enhanced sentence.

        . The United States Supreme Court vacated the Fifth Circuit’s decision in Bullard v Estelle (665 F2d 1347), which involved application of Texas’ habitual offender law, because after it had granted certiorari the Texas Court of Criminal Appeals decided, as a matter of State constitutional law, that Bullington was applicable to habitual offender proceedings in Texas (see, Ex parte Augusta, 639 SW2d 481).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of William A. Grattan, as Commissioner of Health of the Albany County Health Department, Appellant, v The People of the State of New York, Respondent.
    Argued April 30, 1985;
    decided June 4, 1985

      POINTS OF COUNSEL

      Matthew J. Clyne for appellant.
    I. The records in question were created under and are protected by a statutory confidentiality which cannot be unilaterally waived. (McGowan v Metropolitan Life Ins. Co., 234 App Div 366; Estro Chem. Co. v Falk, 303 NY 83; Selzer v Baker, 295 NY 145; Marcus Assoc. v Town of Huntington, 45 NY2d 501; Matter of Carr v New York State Bd. of Elections, 40 NY2d 556; Matter of Bakers Mut. Ins. Co. (Department of Health], 301 NY 21.) II. The records in question are not discoverable by virtue of CPLR 4504 (b). (East End Trust Co. v Otten, 255 NY 283; Matter of Murray Hill Bank, 153 NY 199.) III. The records in question are immune from Grand Jury scrutiny. (People ex rel. Livingston v Wyatt, 186 NY 383; People v Doe, 84 AD2d 182; Matter of New York State Dept. of Taxation & Fin. v New York State Dept. of Law, 44 NY2d 575; Matter of Grand Jury Investigation of Onondaga County, 59 NY2d 130.)

      Sol Greenberg, District Attorney (George H. Barber of counsel), for respondent.
    The 16-year-old sexual crime victim had an inherent right to release her records for the District Attorney. (McGowan v Metropolitan Life Ins. Co., 234 App Div 366; Matter of Glazer v Department of Hosps., 2 Misc 2d 207; Matter of Van Allen v McCleary, 27 Misc 2d 81; Seligman v Friedlander, 199 NY 373; People v Gissendanner, 48 NY2d 543; Matter of State of New York Div. for Youth v Horan, 56 AD2d 632; Davis v Alaska, 415 US 308; Williams v Williams, 23 NY2d 592; Matter of Albano v Kirby, 36 NY2d 526; Carr v Schnid, 105 Misc 645.)
   OPINION OF THE COURT

Per Curiam.

The confidentiality provided by Public Health Law § 2306 for information regarding sexually transmissible diseases is not defeated simply by consent of the source to release the information.

The subpoena in question directed appellant, Commissioner of the Albany County Department of Health, to produce for the Grand Jury all records held by the Bureau of Sexually Transmissible Diseases concerning Tamara B., a 16 year old who had several months earlier been interviewed by the Bureau regarding certain sexual contacts. Appellant moved to quash the subpoena on the basis of Public Health Law § 2306, which provides: “All reports or information secured by a board of health or health officer under the provisions of this article shall be confidential except in so far as is necessary to carry out the purposes of this article.” In opposition, respondent contended first, that there was a possibility of a crime under Penal Law § 130.00; second, that the information was needed by respondent “to refresh [Tamara’s] recollection, because her recollection as to what was said in February is not one hundred percent”; and third, that she had signed a “Medical Authorization” form permitting any person who had attended or examined her to furnish the District Attorney with records regarding her condition or treatment. No issue is raised as to Tamara’s competence to waive her right to confidentiality, or the scope of the waiver. The court denied the motion to quash, but limited the subpoena to direct interviews with Tamara or notes of interviews with her. The Appellate Division affirmed, reasoning that the benefit of the confidentiality created by Public Health Law § 2306 belongs to the disease sufferer, who in this case waived the benefit. We now reverse.

Article 23 of the Public Health Law (“Control of Sexually Transmissible Diseases”) was enacted for the protection of the public. To promote the detection and eradication of sexually communicable diseases, the statute requires certain examinations, provides for isolation and treatment, and includes criminal penalties (Public Health Law §§ 2307, 2309). The requirement of confidentiality (Public Health Law § 2306) is integral to a statutory scheme designed to encourage afflicted persons to seek and secure treatment, which in the case of communicable disease serves individual interests as well as those of society.

We disagree with the observation of the court below that the benefit of the statutory provision for confidentiality is limited to the disease sufferer, and may simply be waived by her. In situations where public disclosures are embarrassing, the assurance of secrecy offered by the Board of Health not only encourages an individual disease sufferer to come forward for treatment but also fosters a public perception that necessarily results in a greater willingness of others to cooperate. We therefore conclude that, in view of the public interest that the program have the appearance of inviolable trust, an individual’s consent to release of records will not in every case be sufficient to override the statutory confidentiality (see, e.g., McGowan v Metropolitan Life Ins. Co., 234 App Div 366, appeal dismissed 259 NY 454).

In support of releasing the records, respondent points both to the requirement of CPLR 4504 (b) that a physician disclose information indicating that a patient under the age of 16 has been the victim of a crime, and to a legitimate public interest in the prosecution of crime. CPLR 4504 (b) is directed to the physician-patient privilege, which was not invoked in this case. Indeed, such a contention would not even find factual support in the record. Respondent, in support of his second argument, has made an inadequate showing that the identity of Tamara’s contacts could not have been procured by less intrusive means. At least on this record, there is no basis for overriding the confidentiality which the Legislature has provided by section 2306 of the Public Health Law.

Accordingly, the order of the Appellate Division should be reversed, with costs, and appellant’s motion to quash the subpoena granted.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur in Per Curiam opinion; Judge Titone taking no part.

Order reversed, etc.

      . While the Grand Jury has been disbanded, we exercise our discretion not to dismiss this appeal for mootness because of the public importance of the issue, its potential for evading review, and the likelihood of its recurrence (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715).

      . The statute originally provided for absolute confidentiality (see, L 1918, ch 264, § 1 [adding Public Health Law § 343-r]). Deletion of the word “absolutely,” however, reflected no substantive change (see, L 1953, ch 879; State Health Department Memorandum, 1953 NY Legis Ann, at 201-202).


author: Simons, J. Chief Judge Wachtler

text:
    David A. Foss, Appellant, v City of Rochester et al., Respondents.
    Argued May 28, 1985;
    decided June 6, 1985

      POINTS OF COUNSEL

      Edward H. Fox and Douglas A. Foss for appellant.
    I. The standard of assessment established by Real Property Tax Law § 305 violates the due process clauses of the State and Federal Constitutions because it deprives taxpayers of the opportunity to determine whether assessments are proper. (Keyishian v Board of Regents, 385 US 589; Cramp v Board of Public Instruction, 368 US 278; Grayned v City of Rockford, 408 US 104; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1.) II. The city’s adoption and implementation of a “homestead base proportion” violates plaintiff’s rights under the equal protection clauses of the State and Federal Constitutions. (Matter of Long Is. Light. Co. v State Tax Commn., 45 NY2d 529; Lehnhausen v Lakeshore Auto Parts Co., 410 US 356; Matter of Burrows v Board of Assessors, 98 AD2d 250; Magnano Co. v Hamilton, 292 US 40; Weissinger v Boswell, 330 F Supp 615; Tax Commrs. v Jackson, 283 US 527; Louisville & Nashville R. R. Co. v Public Serv. Commn., 493 F Supp 162, 631 F2d 426,450 US 959; Matter of Slewett & Farber v Board of Assessors, 97 Misc 2d 637, 80 AD2d 186,54 NY2d 547; Matter of Colt Indus. v Finance Administrator, 54 NY2d 533.) III. The “homestead base proportion” adopted by the city pursuant to Real Property Tax Law article 19 represents an unconstitutional delegation of legislative power. (Matter of Small v Moss, 279 NY 288; Matter of Larkin Co. v Schwab, 242 NY 330; City of Amsterdam v Helsby, 37 NY2d 19; Gautier v Ditmar, 204 NY 20; Matter of Slewett & Farber v Board of Assessors, 97 Misc 2d 637, 80 AD2d 186, 54 NY2d 547.)

      Louis N. Kash, Corporation Counsel (Susan L. Hauser of counsel), for respondents.
    I. Real Property Tax Law § 305 is not unconstitutionally vague. (Stemmer v Board of Assessors, 97 AD2d 979; Sioux City Bridge v Dakota County, 260 US 441; Matter of Colt Indus. v Finance Administrator, 54 NY2d 533; Matter of Standard Brands v Walsh, 92 Misc 2d 903, 60 AD2d 605; 860 Executive Towers v Board of Assessors, 53 AD2d 463, affd sub nom. Matter of Pierre Pellaton Apts. v Board of Assessors, 43 NY2d 769; Guth Realty v Gingold, 34 NY2d 440; Trio Distrib. Corp. v City of Albany, 2 NY2d 690; People v Grogan, 260 NY 138; Cline v Frink Dairy Co., 274 US 445; United States v Mazurie, 419 US 544.) II. Article 19 is constitutional, and does not violate equal protection principles. (Madden v Kentucky, 309 US 83; Matter of Long Is. Light. Co. v State Tax Commn., 45 NY2d 529; Shapiro v City of New York, 32 NY2d 96; Lehnhausen v Lake Shore Auto Parts Co., 410 US 356; Matter of Catapano Co. v New York City Fin. Admin., 40 NY2d 1074; Ampco Printing-Advertisers’ Offset Corp. v City of New York, 14 NY2d 11; People ex rel. Hatch v Reardon, 184 NY 431; Gautier v Ditmar, 204 NY 20; Matter of United States Steel Corp. v Gerosa, 7 NY2d 454;
      Matter of Small v Moss, 279 NY 288; Cleveland v City of Watertown, 222 NY 159.) III. Article 19 does not involve any improper delegation of legislative authority. (Matter of Small v Moss, 279 NY 288.)

      Robert Abrams, Attorney-General (Robert Hermann, Peter H. Schiff and John Q. Driscoll of counsel), in his statutory capacity under Executive Law § 71. I. Real Property Tax Law § 305 is valid and constitutional.

      (Stemmer v Board of Assessors, 97 AD2d 979; Matter of Standard Brands v Walsh, 92 Misc 2d 903, 60 AD2d 605.) II. Separate classification of homestead and non-homestead properties for purposes of taxation is not unconstitutional. (Lehnhausen v Lake Shore Auto Parts Co., 410 US 356; Matter of Long Is. Light. Co. v State Tax Commn., 45 NY2d 529; Allied Stores of Ohio v Bowers, 358 US 522; Salsburg v Maryland, 346 US 545; Missouri v Lewis, 101 US 22; Matter of Rosenthal v Hartnett, 36 NY2d 269; Matter of Colt Indus. v Finance Administrator, 54 NY2d 533; People ex rel. Hatch v Reardon, 184 NY 431, affd sub nom. Hatch v Reardon, 204 US 152; New York Steam Corp. v City of New York, 268 NY 137; Puget Sound Co. v King County, 264 US 22.) III. Article 19 does not involve a delegation of authority to establish rates of taxation to the local assessor.

      Joseph P. McCale for Park-Brunswick Neighborhood Association, amicus curiae.

    I. Real Property Tax Law § 305 is neither impermissibly vague nor does it deprive appellant of rights secured under the New York State or Federal Constitutions. (Stemmer v Board of Assessors, 97 AD2d 979.) II. Article 19 is not an unlawful delegátion of authority to either the assessor or local legislative body. (Matter of Colt Indus. v Finance Administrator, 54 NY2d 533; Stemmer v Board of Assessors, 97 AD2d 979; Matter of Long Is. Light. Co. v State Tax Commn., 45 NY2d 529; People ex rel. Hatch v Reardon, 184 NY 431, affd sub nom. Hatch v Reardon, 204 US 152; New York Steam Corp. v City of New York, 268 NY 137; Matter of Small v Moss, 279 NY 288; Lehnhausen v Lake Shore Auto Parts Co., 410 US 356.) III. Article 19 of the Real Property Tax Law does not deny equal protection of law to appellant. (Matter of Colt Indus. v Finance Administrator, 54 NY2d 533; Nicolette v Village of Clyde, 34 AD2d 202; Board of Educ. v Nyquist, 57 NY2d 27.)
   OPINION OF THE COURT

Simons, J.

Plaintiff, owner of a four-family dwelling in the City of Rochester, commenced this action against the city, its assessor, the County of Monroe and the Rochester Pure Waters District, seeking a declaratory judgment invalidating section 305 and article 19 of the Real Property Tax Law and an injunction preventing defendants from assessing, levying and collecting taxes pursuant to them. He claims that the statutes are unconstitutional because they deprive him of rights to due process and equal protection of the law and because article 19 represents an unconstitutional delegation of the Legislature’s taxing authority to local assessors. Plaintiff also challenges Rochester Local Law No. 6 of 1983, by which the city adopted the provisions of article 19, on the ground that pursuant to it his “non-homestead” property is taxed by Monroe County at a higher rate than “homestead” properties within and without the city and that it also results in his payment of higher county taxes than those paid by similar non-homestead properties in other parts of the county. Special Term denied plaintiff’s motion for an injunction and granted defendants’ cross motion for summary judgment declaring the challenged legislation constitutional. The Appellate Division affirmed and the matter is before us by right (see, CPLR 5601 [b]).

There should be a modification. Section 305 of the Real Property Tax Law is not void for vagueness in violation of constitutional due process notice requirements, and article 19 of that statute does not result in an unconstitutional delegation of legislative power. Article 19 and Rochester Local Law No. 6 of 1983 do, however, violate the equal protection clauses of the Federal and State Constitutions because they permit similarly situated properties to be taxed unequally.

I

It is helpful to place the challenged legislation in historical perspective. For over 200 years New York municipalities assessed real property at a fraction of full value notwithstanding the requirement of former section 306 of the Real Property Tax Law and its predecessors that it be assessed at its full value. The resulting assessments produced intraclass variations among similar properties in different locations and interclass variations among different types of properties. Because of the dramatic increase in the value of residential properties in recent years, without corresponding reassessments, residential properties gradually became assessed at a lower percentage of current market value than commercial properties and the burden of real property taxation shifted from owners of residential properties to owners of commercial properties. A de facto dual system of taxation developed, a system which was tolerated and justified by some because residential owners could not pass the expense of additional taxes along whereas commercial and industrial owners could.

In 1975, we held that section 306 of the Real Property Tax Law required that all property be assessed at full value and that fractional assessments were, therefore, invalid (Matter of Hellerstein v Assessor of Town of Islip (37 NY2d 1). The Legislature, recognizing that full value reassessment would produce a dramatic shift in the local property tax burden away from nonresidential property owners to residential property owners, repealed section 306 and added the legislation before us on this appeal, a new section 305 explicitly permitting fractional assessment at a uniform percentage of value and article 19 (L 1981, ch 1057). The provisions of article 19 permit a city or town which has undergone a revaluation of all its real property in compliance with standards imposed by the State Board of Equalization and Assessment to adopt a dual tax rate structure (Real Property Tax Law § 1901 [d]; § 1903). Rochester, acting pursuant to these statutory provisions, revalued its property, had the revaluation approved by the State Board of Equalization and Assessment and enacted Local Law No. 6 of 1983 adopting the provisions of article 19. Beginning with the 1984-1985 tax year, it divided all property in the city into homestead properties (Real Property Tax Law § 1901 [e] [1] [i]) and all others {id. [ii]) and taxed the two classes at different rates computed by using the statutory formulae.

Plaintiff instituted this action to challenge the tax imposed and asserted three causes of action. In the first, he alleged that the standard of assessment mandated by Real Property Tax Law § 305 “at a uniform percentage of value (fractional assessment)” is unconstitutionally vague because the word “value” as used in the statute could be construed to mean something other than full market value and because the statute does not specify a percentage or particular value at which property is to be assessed. In his second cause of action, he asserted that the statutory formula for calculating the homestead base proportion is an unconstitutional delegation of the legislative power to tax because the rate depends upon the roll prepared by the assessor in the year prior to revaluation. In his third cause of action, he claimed that application of article 19 to collect the county tax denies him equal protection of the law. Specifically, plaintiff alleged that there will be a higher county tax on non-homestead properties than homestead properties in the city, and a higher county tax on non-homestead properties in the city than against identical non-homestead properties in assessing units located in Monroe County outside the City of Rochester.

IL

Plaintiff’s first two causes of action were properly rejected by the courts below and do not require extensive discussion here. Real Property Tax Law § 305 is not impermissibly “vague” either because it permits assessments at less than full value or because it permits fractional assessments to be made without specifying a fraction. Due process requires only a reasonable degree of certainty so that individuals of ordinary intelligence are not forced to guess at the meaning of statutory terms (Connally v General Constr. Co., 269 US 385, 391; see generally, Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U of Pa L Rev 67). Section 305 satisfies that standard because plaintiff has notice by established judicial construction of the term “value” that it means “market value” (see, Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1, 10, supra; Stemmer v Board of Assessors, 97 AD2d 979) and because, even though the statute itself does not prescribe the uniform ratio by which all property is to be assessed, proof of such ratio is readily available in any certiorari proceeding based on valuation by use of the ratio found by the State Board of Equalization and Assessment (see, Real Property Tax Law § 720 [3] [b]; see also, Guth Realty v Gingold, 34 NY2d 440). Moreover, plaintiff received ample, albeit constructive, notice of the value relied upon in this case when the city reassessed all property on its rolls at the uniform rate of full value. Finally, to the extent that plaintiff’s first cause of action can be inferred to allege that the Constitution requires that all assessments must be made at full market value, it must also fail, because his property was assessed at full market value and because the former requirement of full value assessment was statutory, not constitutional (Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1, supra).

Plaintiff’s further contention that article 19 constitutes an improper delegation of legislative authority to tax is similarly without merit. The article does not, by its terms or otherwise, permit local assessing units to set tax rates. Rather, the Legislature has delegated the authority to tax to local legislative bodies, as it may, to be exercised by them within prescribed discretionary limits (e.g., Matter of Small v Moss, 279 NY 288, 295). Once the local legislature adopts the statute, the assessor may classify property into residential and commercial classes by partitioning them as they appeared on the previous years’ assessment rolls. The decision to adopt article 19, however, and the permissible options for varying the base proportions (Real Property Tax Law § 1903 [2] [b] [i], [ii]) remain matters entrusted to the local legislative body.

Ill

Plaintiff’s major complaint is the disparity in county taxes imposed upon homestead and non-homestead properties within the City of Rochester, and on his property and similar properties located outside the city. We agree that article 19 as applied in these circumstances results in invidious discrimination between non-homestead properties in Rochester and like properties in other parts of the county and denies plaintiff equal protection of the laws. Our analysis proceeds from a general review of real property assessment theory to the procedure implemented by adoption of article 19 and finally to the reasons for our conclusion that the challenged legislation is unconstitutional when applied because it impermissibly creates geographic classifications resulting in unequal tax treatment of similarly situated properties.

The integrity of any system of taxation, and particularly real property taxation, rests upon the premise that similarly situated taxpayers pay the same share of the tax burden (see, Johnson v Smith, 297 NY 165,170; see also, People ex rel. Hatch v Reardon, 184 NY 431, 445). Because real property taxes normally are computed by dividing the total assessed value of all real property subject to tax by the total levy of money which must be raised, thereby producing a tax rate, the taxes will be fairly borne under the usual practice if assessments are uniform and equal. This uniformity may be achieved not only by review of the property on the tax rolls by the assessors but also by property owners challenging their assessments for inequality in judicial proceedings pursuant to article 7 of the Real Property Tax Law.

The process is relatively simple when dealing with a tax levied by one assessing unit. It becomes aggravated when imposing county taxes, however, because assessments are the responsibility of local assessing units (Real Property Tax Law § 900 et seq.) and a county contains several such assessing units each with different assessors determining subjective value and each using different ratios of assessed value to full value. No matter how well intentioned the assessors, county-wide assessments may not be uniform or equal. Accordingly, the Constitution requires that the Legislature provide for the “supervision, review and equalization of assessments” (NY Const, art XVI, § 2) so that each assessing unit bears its proportionate share of the county levy based upon its proportionate share of assessed valuation in the county. Thus, the county rate is computed for each assessing unit on the basis of assessments equalized pursuant to the provisions of article 8 of the Real Property Tax Law and. the tax is determined by applying adjusted rates to the individual assessments as found by the local assessors. If those units have different assessment ratios the taxes are harmonized by equalizing the ratios on a basis of full value and adjusting the rate accordingly. The rates may vary from unit to unit if the assessment ratio differs between them, but the proportionate share of taxes levied against the individual properties within the unit and payable to the county are generally consistent with the assessing unit’s proportionate share of assessed value of real property in the unit to the assessed value of the real property within the county and each property owner theoretically bears its fair share of the cost of government in relation to every other property owner in the taxing district.

Notwithstanding these methods for achieving theoretical uniformity, there was a good deal of slippage in the computations over the years and the dual system of taxation previously described developed. The ruling in Hellerstein required that all properties, residential and nonresidential, had to be reassessed at full value. Article 19 and section 305 were enacted to avoid that result and to permit local assessing units to institutionalize indefinitely the de facto dual system of taxation which existed. What had formerly been considered a single class, all real property subject to tax, may now be divided into two classes, homestead properties, defined as properties housing three or fewer families (Real Property Tax Law § 1901 [e] [1] [i]) and all others, denominated non-homestead properties (id. [ii]). An assessing unit electing to undertake an approved revaluation and to reassess each of its properties at full value (see, Real Property Tax Law § 1901 [i]) may apportion the tax levy unequally between the properties in these two classes by imposing a different rate on each class. The rates are computed by a method which continues allocating the share of government costs in the assessing unit in the same proportion as the owners in the two classes historically had paid (see, Real Property Tax Law § 1901 [Z]). Thus, if non-homestead property previously paid a greater proportionate share of the levy because of inequalities in assessments, as they uniformly did, article 19 creates a method to perpetuate that difference.

The proportion of the levy imposed on each class is determined by the following formulae:

Assessed value of all homestead properties (the homestead base properties)
divided by
Total assessed value of all property in the assessing unit
and
Assessed value of all other properties (non-homestead base properties) divided by
Total assessed value of all property in the assessing unit. (Real Property Tax Law § 1901 [f], [g].)

The assessed values employed in the formulae are the assessed values actually appearing on the roll of the approved assessing unit the year before revaluation (Real Property Tax Law § 1901 [Z]; § 1903 [2]) and the shares of future taxes to be paid by each class are allocated according to the proportions determined by using the above ratios (id. § 1903 [3] [subject to relative minor adjustments permissible for homestead ratios, see, id. § 1903 (2) (b)]).

When the provisions of article 19 are applied in this case, the 1984-1985 tax rate in Rochester for non-homestead properties, based upon the prerevaluation share of the tax burden borne by the two classes of property, was almost twice the tax rate for homestead properties and these tax rates were applied to new, full value assessments. Thus, non-homestead property in Rochester, which comprises 52.46% of the total assessed value, paid 65.55% of the taxes levied by the city and by the County of Monroe on properties in the city. Homestead property, which comprises 47.54% of the total assessed value, paid only 34.45% of the total levies.

The Federal and State Constitutions do not prohibit dual tax rates or require that all taxpayers be treated the same. They require only that those similarly situated be treated uniformly. Thus, the creation of different classes for purposes of taxation is permissible as long as the classification is reasonable and the taxes imposed are uniform within the class (see, Shapiro v City of New York, 32 NY2d 96, 103-107, appeal dismissed 414 US 804; New York Steam Corp. v City of New York, 268 NY 137; People ex rel. Hatch v Reardon, 184 NY 431, supra; Matter of McPherson, 104 NY 306; see, Lehnhausen v Lake Shore Auto Parts Co., 410 US 356). “[S]ubject to constitutional inhibitions, the Legislature has very nearly unconstrained authority in the design of taxing impositions” (Matter of Long Is. Light. Co. v State Tax Commn., 45 NY2d 529, 535; see also, Trump v Chu, 65 NY2d 20, 25). Indeed, the Supreme Court has held that even a State tax which has the effect of destroying a business must be sustained if it is not invidious. The remedy for an oppressive tax is political, not judicial (see, Magnano Co. v Hamilton, 292 US 40, 45). The classification violates constitutional equal protection guarantees, however, if the distinction between the classes is “palpably arbitrary” or amounts to “invidious discrimination” (see, Lehnhausen v Lake Shore Auto Parts Co., supra, at p 360; Shapiro v City of New York, supra, at p 103).

The classification of properties within the City of Rochester as homestead and non-homestead and the imposition of different tax rates on each is reasonable because arguably greater services may be required for non-homestead properties within the city than for homestead properties (cf. People ex rel. Kutner v Cullerton, 58 Ill 2d 266, 319 NE2d 55). The difficulty arises when county taxes are applied to non-homestead properties in the city and non-homestead properties which are located outside of the city. Although article 19 does not purport by its terms to create geographic classifications, such classifications result from its application because of the presence of several independent assessing units in the county-wide taxing unit, some of which have adopted article 19 and some of which have not. Though such geographic classifications are not per se prohibited (Matter of Colt Indus. v Finance Administrator, 54 NY2d 533, appeal dismissed sub nom. Equitable Life Assur. Socy. v Finance Admin., 459 US 983, and cases cited at p 544; Hess v Mullaney, 213 F2d 635, 639; Weissinger v Boswell, 330 F Supp 615, 623), when article 19 is applied in this case the taxes levied result in invidious discrimination between owners of similar properties in different assessing units.

Monroe County is taxing non-homestead property in Rochester at a higher rate than similar non-homestead properties outside of the City of Rochester simply because, under the provisions of article 19, Rochester imposes a higher share of the tax levy on non-homestead properties than do the other towns in the county. It does so by establishing rates which are artificial constructs based upon the statutory formulae. The resulting disparity in taxes imposed on Rochester and town properties cannot be equalized because the Rochester rate is not related to the full or assessed value of the property or to any other countywide norm. It is based upon the proportionate share of the tax burden borne by properties within the city in the past and not upon the relative assessed values of properties in the two assessing units. The effective rate cannot be equalized after determining the shares of the levy to be raised in the various assessing units, as in the past, because the shares of the levy are apportioned to two classes of property in Rochester, each with a different rate, and to one class of property in the towns, taxed at a single rate wholly unrelated to the assessments or rates in Rochester. Moreover, uniform rates for homestead and non-homestead properties in the city and the towns could not be determined or “equalized”, even if a system for equalizing them existed, until and unless these various assessing units elect to adopt article 19 because the measuring assessment roll is not determined until after that election is made (Real Property Tax Law § 1901 [Z]). Inevitably then, as plaintiff contends, non-homestead property in the city will pay a higher county tax than similar property in other assessing units of Monroe County because the City of Rochester has elected to impose a higher tax rate on such properties whereas the other assessing units have not.

The inequities are magnified if one or more towns adopt a homestead base proportion determined by reference to the local town’s assessment roll of the preceding year. The dual rate structure in such towns will inevitably differ from the dual rate structure in the city because the homestead base proportions in the various towns are not the same as those in the city; indeed they will not even be based on the same year’s assessment rolls. Although assessments for the towns electing article 19 will be established at 100% of the market value, as the statute mandates (Real Property Tax Law § 1902; 9 NYCRR 190-4.6), that becomes a meaningless exercise on a county-wide level because individual rates will be determined on the basis of a roll unrelated to rolls of other assessing units.

Before article 19, tax parity could be achieved by maintaining rough uniformity of the assessments county-wide through equalization. Whatever the discrepancies, the property owner could challenge inequality within his assessing unit by proceedings pursuant to article 7 of the Real Property Tax Law and inequality in the equalization rate between his unit and others by a proceeding pursuant to article 8 of the Real Property Tax Law. There was thus a method, imperfect certainly but nevertheless a method, to try to equalize taxes for similar properties in the county. That solution no longer is available, however, because the “new” inequality is not the result of unequal assessments but of a variety of different rates throughout the county and because the 'authority to tax and the authority to fix the rate are in different hands the city taxpayer is left without a remedy. He may not successfully complain to county tax officials that his assessment or rate is too high because they have no power to correct or adjust either one. His complaint to the assessing unit will avail him nothing because all property is assessed equally at 100% and his rate is frozen, based upon a prerevaluation assessment roll. Finally, a political remedy is a remote possibility, at best, because it is unlikely that the city officials will change the rate or that officials of the largely residential towns will reassess the property or disturb a ratio in their assessing unit which places them at a distinct advantage over their city neighbors.

The Appellate Division concluded that homestead and non-homestead properties need not be taxed uniformly by the county as long as all properties in a given class within an assessing unit are treated uniformly. The effect of legislation must be viewed from the perspective of the taxing unit, the county, where the invalidity is manifested, however, not the perspective of the assessing unit. There is little satisfaction to city property owners in having a “fair” assessment if the common council authorizes imposition of a county tax rate on them higher than that of their neighbors in the next town owning similar property and receiving the same services. The Constitution mandates that assessments within the various assessing units must be equalized for taxation purposes (NY Const, art XVI, § 2; see also, 84 CJS, Taxation § 38) and if article 19 does not violate the letter of that provision, it surely violates its purpose and spirit by imposing unequal burdens upon similar properties in different geographic areas.

The city contends that there was a rational basis for enactment of article 19 because the Legislature acted to avoid uncertainty and disruption of municipal finances following the Heller-stein decision and that it intended by this legislation to maintain the status quo and local control of assessments. Perpetuation of the status quo is not a legitimate end of government, however, if the status quo has been judicially found wanting (see, Matter of Hellerstein v Assessor of Town oflslip, 37 NY2d 1, 10-13, supra). Suffely local governments starting anew could not adopt the haphazard assessment system existing before the Hellerstein decision and there is no legitimate governmental purpose to be served by perpetuating it. Maintenance of local authority overtaxes also may be desirable, but it cannot justify the unequal treatment which results. As commendable as the Legislature’s desire for stability may be, it is not enough that it had a rational reason for enacting these statutes (see, Cumberland Coal Co. v Board of Revision, 284 US 23). There must also be a rational reason for deliberately imposing the demonstrably different tax burdens on similar properties because of their different geographic locations. Because no rational demographic basis for such a difference is suggested or apparent, the statute is unconstitutional (see, Weissinger v Boswell, 330 F Supp 615, supra; see also, McCarthy v Jones, 449 F Supp 480 [implementing Weissinger]; cf. Cumberland Coal Co. v Board of Revision, 284 US 23, supra).

Our decisions in Matter of Colt Indus. v Finance Administrator (54 NY2d 533, appeal dismissed sub nom. Equitable Life Assur. Socy. v Finance Admin., 459 US 983, supra) and Matter of Long Is. Light. Co. v State Tax Commn. (45 NY2d 529, supra) do not suggest otherwise. Article 19 does far more than permit a different method of proving value in different areas of the State, as did the statute in Colt Indus., or authorize a disparity in the method of computing the tax on property of a single taxpayer located in more than one county, as did the statute in the Long Is. Light, cases.

Although we are invalidating Local Law No. 6 and its application of article 19, the fact remains that the city relied upon the revenues derived from implementing it and would suffer an undue burden if it had to refund the taxes collected. Under such circumstances, we have held in the past that the invalidation of the statute will not be applied retroactively (see, Hurd v City of Buffalo, 41 AD2d 402, 404-405, affd 34 NY2d 628; see also, Lemon v Kurtzman, 411 US 192, 199; cf. Waldert v City of Rochester, 44 NY2d 831). That principle controls here and our decision does not permit recovery of taxes previously paid pursuant to the legislation for the 1984-1985 tax year now invalidated.

Accordingly, the order of the Appellate Division should be modified, with costs to appellant, by declaring that Local Law No. 6 of 1983 and article 19 of the Real Property Tax Law are unconstitutional as applied, and as so modified, the order should be affirmed.

Chief Judge Wachtler

(dissenting in part). Although I completely agree with parts I and II of the majority opinion, I cannot subscribe to the conclusion that Local Law No. 6 and Real Property Tax Law article 19 are unconstitutional as applied. In reaching its conclusion, I believe the majority has turned its back on well-established principles used to review taxing legislation challenged upon equal protection grounds. In addition, its decision will require courts to examine all the possible incidental effects of such legislation, a task for which the judiciary is ill suited and one which, until today, it has not been called upon to perform.

In general, all real property within a district which both levies taxes and assesses property is assessed at a constant percentage of market value (Real Property Tax Law § 305 [2]; Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1, remittitur amended 39 NY2d 920). The district tax burden, exacted by application of a uniform rate against such uniform assessments, will, in theory, result in each property’s paying an equitable share of the total tax burden.

No constitutional right is trespassed if, as authorized by Real Property Tax Law § 1903 (2), (3), such taxing and assessing district adopts homestead and non-homestead base proportions and levies its taxes accordingly. The result of such election, again assuming assessment of all properties involved at a uniform percentage of market value, is that each property within one or the other of the two classes will pay an equitable share of the total tax burden of that class. However, the share paid by any property in one class will be disproportionate to the share paid by any property in the other class (an interclass disparity).

The incidental effect of the adoption of article 19 by one or more, but not all, of the assessing units in a taxing district comprising a plurality of assessing units is a disparity in share of tax burden paid by properties of equal value assessed at the same fraction of such value which would fall into the same class. The majority concedes that, but for this incidental intraclass disparity, article 19 is constitutional.

I do not agree with the majority’s assertion (majority opn, at p 259) that the legislative scheme at issue denies the taxpayer a remedy. The majority concedes that all taxpayers’ vehicles for challenging their assessments remain intact, but claims the inequality here must be viewed from the perspective of the taxing, rather than the assessing unit. The problem with such a change in perspective is that it also changes the nature of the problem. Assessment is a property-by-property determination, and irregularities in given cases can be challenged by the affected property owners and taxpayers. The intraclass variations viewed from the perspective of the taxing unit are not the result of such individualized, quasi-judicial determinations, but of generalized, legislative determinations applicable to all within each assessing! unit. The “remedy” for invocation of article 19 by an assessing unit clearly does exist, as it does in all such cases — at the ballot box.

Moreover, this incidental effect must be viewed in perspective. Even if the perpetuation of the intraclass disparity could be regarded as without rational basis were it the sole or primary objective of the statute, when viewed as what it is — an undesirable by-product of an otherwise permissible legislative attempt to solve a complex and long-standing problem — it should be able to withstand the extremely low level of scrutiny to which it must be subject. It must also be remembered that Real Property Tax Law article 19 does not by its own terms impose any intraclass disparity upon anyone. The invocation of its provisions (and their necessary consequences) is left to the elected representatives of each assessing unit. Here, although the intraclass disparity appears in the county tax structure, it results from a conscious legislative determination by the City of Rochester that the achievement of the legitimate governmental objectives to which article 19 is, as the majority concedes, rationally related outweighs the incidental disadvantage to which non-homestead property owners would be subject in the allocation of the county’s tax burden.

The majority’s suggestion that the intraclass disparity could easily be surgically removed from the effects of the statutory scheme by transferring the responsibility for assessments to the county, ignores the limited role of the judiciary in reviewing legislation, particularly taxing legislation, when challenged on equal protection grounds.

Our role in such cases is merely to determine whether, taken as a whole, such legislation bears a rational relation to the achievement of a legitimate governmental purpose (Board of Educ. v Nyquist, 57 NY2d 27, appeal dismissed 459 US 1138). That such legislation may, in whole or in part, result in “even a flagrant unevenness” is immaterial (Matter of Long Is. Light. Co. v State Tax Commn., 45 NY2d 529, 535), and legislatively drawn geographic distinctions in taxing legislation provide no basis upon which to sustain a constitutional challenge (Matter of Colt Indus. v Finance Administrator, 54 NY2d 533, 544, rearg denied 56 NY2d 646, appeal dismissed sub nom. Equitable Life Assur. Socy. v Finance Admin., 459 US 983). In striking down so much of article 19 as produces the intraclass disparity, the majority disregards the strong presumption of constitutionality all statutes enjoy, which may be overcome only by proof of unconstitutionality beyond a reasonable doubt (Lighthouse Shores v Town of Islip, 41 NY2d 7, 11-12), as well as the special deference with which the courts must review legislative judgments in the area of taxation (Board of Educ. v Nyquist, supra; Matter of Long Is. Light. Co. v State Tax Commn., supra).

By ignoring these well-established principles of judicial review, the majority today signals an unprecedented willingness on the part of this court to examine all the possible incidental effects of legislation challenged on constitutional grounds, a task we have declined to undertake in the past. In City of Rochester v West (164 NY 510, 514), we held “the validity of a statute or ordinance is not to be determined from its effect in a particular case, but upon its general purpose and its efficiency to effect that end” (see also, Lang’s Creamery v City of Niagara Falls, 224 App Div 483, 487, affd 251 NY 343; City of Rochester v Gutberlett, 211 NY 309, 316; 20 NY Jur 2d, Constitutional Law, § 70, at 139). In a situation involving a statutory prohibition of what were legislatively perceived to be unhealthy work practices, we declined to examine whether, as an incidental effect of the legislation, some unobjectionable practices would be prohibited as well, holding: “A legislature must legislate in general terms, and its mandates are not constitutionally vulnerable because having power to act concerning a certain subject and to legislate in' terms reasonably calculated to accomplish the general purpose within the scope of its authority, it covers and prohibits some isolated transaction which by itself would be harmless and unobjectionable” (People v Schweinler Press, 214 NY 395, 407, appeal dismissed 242 US 618; emphasis added).

The result of this unprecedented scrutiny would be an unwarranted, and I believe unconstitutional, usurpation of the Legislature’s authority to act in the area of taxation, an area in which it, not the judiciary, possesses the necessary expertness and accountability to the public which in the end are far more effective than overly oppressive judicial oversight to assure fairness in the levying and exaction of taxes.

Judges Meyer, Kaye and Titone concur with Judge Simons; Chief Judge Wachtler dissents in part and votes to affirm in a separate opinion in which Judges Jasen and Alexander concur.

Order modified, with costs to appellant, in accordance with the opinion herein and, as so modified, affirmed.

      . The city concedes that in 1983 homestead property in the city was assessed an average of 11.7% of value while non-homestead property was assessed at approximately 20% of full value.

      . In the case of Monroe County, disparate inequality of assessments from one assessing unit to another is graphically set forth by the assessor in his affidavit in opposition to plaintiff’s motion. For instance, commercial property in the Town of Hamlin was taxed at approximately two thirds the rate of residential property, while the relative tax rates against the two classes of property in the Town of Perintqn were reversed. Thus, if these towns adopted article 19, similar properties in Rochester and in each town would be taxed at different and irreconcilable rates even if the properties were subsequently assessed at 100% of full market value.

      . Any taxpayer who believes his property has been overassessed by reason of overvaluation, employment of an illegal method of valuation, or application of a different percentage of market value than other properties in the assessing district can challenge such assessment pursuant to Real Property Tax Law article 7.

      . Before the adjustments mandated by article 19 are applied to such local assessment rolls, the ratios, or proportions of assessed to actual market value, of all districts are equalized pursuant to Real Property Tax Law article 8.

      . The legislative history of article 19 supports such a conclusion. The legislative memorandum in support of the bill comprising, inter alia, article 19 states: “The bill is primarily designed to assure stability in the administration of the property tax at a time when widespread taxpayer fear and uncertainty threaten the viability of the tax, the keystone of the State/local tax structure. Accordingly, it is drawn narrowly, and addresses only those problems the solutions of which are essential to assuring stability.” (1981 NY Legis Ann, at 547.)