author: Bellacosa, J. Titone, J.

text:
    The People of the State of New York, Respondent, v Charles Duuvon, Appellant.
    Argued February 5, 1991;
    decided April 2, 1991

      POINTS OF COUNSEL

      E. Joshua Rosenkranz for appellant.

      Robert M. Morgenthau, District Attorney (Patricia Curran and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Bellacosa, J.

Defendant was convicted of twice robbing the same dry cleaning store in Manhattan. The judgment, based on a jury verdict, was affirmed by the Appellate Division and a Judge of this Court granted leave to appeal. The issue now before us is the validity of a showup identification of defendant made by an employee-victim-witness at the robbery scene a few minutes after the robbery. This challenged showup took place after defendant had been identified at the scene of his arrest by the store manager-victim-witness, who had chased after and ultimately caught up with defendant as the police were arresting him around the corner from the store.

While showup identifications are generally suspect and disfavored, at-the-crime-scene civilian showup identifications are not presumptively infirm. We emphasize, however, that such showup or identification evidence should not be routinely admissible either. It must be scrutinized very carefully for unacceptable suggestiveness and unreliability. The admission or suppression of these street showup protocols thus turns on specific and varying circumstances in individual cases (see, People v Wharton, 74 NY2d 921, 923). The apprehension of this perpetrator very near the crime scene, coupled with the temporal proximity to the commission of the crime, withstands this scrutiny. Based on these facts, as found by the suppression court and left undisturbed by the Appellate Division, we conclude that the defendant’s suppression motion was properly denied and that the order affirming his conviction should be affirmed.

Defendant collaborated in an April 21, 1987 armed robbery of a Manhattan dry cleaners. The manager and an employee were present at the time of the robbery and reported it to the police, with a description of the robbers. Ten days later, defendant robbed the same cleaners, this time acting alone. The same manager and employee were present. The manager, who recognized defendant from the April 21 stickup, shouted for help as defendant fled the scene and entered a waiting cab. The cab driver drove less than two blocks before stopping in the path of a police car and signaling the police. Defendant exited the cab and ran. A chase ensued, ending approximately one-half block away with the police capture of defendant, clutching a wad of money in his hand. At that point, the manager of the cleaners appeared and immediately and spontaneously identified defendant as the robber. Defendant was arrested, handcuffed, and seated in the back of a patrol car. The police backed the patrol car around the corner to the cleaners, where the employee identified defendant. Only the employee’s showup identification is challenged and at issue here.

Defendant was later taken to the station house, where he waived his Miranda rights and confessed to the May 1 robbery. He was subsequently charged with both robberies. His pretrial motion to suppress the showup identification by the employee was denied. The suppression court concluded that "given the very very few minutes, perhaps four or three minutes, and the short distance, * * * the identification procedure involving [the employee] was not unduly suggestive.”

During the jury trial, the manager identified defendant as the April 21 and May 1 robber. The employee and the cab driver also identified defendant as the May 1 robber. Defendant was convicted of robbery in the first degree and two counts of robbery in the second degree.

The Appellate Division affirmed, holding that "the showup identification was not so unnecessarily suggestive as to create a substantial likelihood of misidentification,” and that "[t]he fact that defendant was handcuffed in the patrol car alone does not transform a viewing into an unduly suggestive one” (160 AD2d 653). The Appellate Division added that error, if any, regarding the admission of the employee’s testimony was harmless in light of the overwhelming evidence of defendant’s guilt, including the identifications by the manager and the cab driver.

Civilian showup identifications occur in a variety of forms and circumstances. They have met with judicial action ranging from condemnation to condonation. For example, civilian showup identifications at police stations are inherently suggestive and should be suppressed as a matter of general principle unless exigency warrants otherwise (People v Riley and People v Rodriguez, 70 NY2d 523; People v Adams, 53 NY2d 241; compare, People v Gordon, 76 NY2d 595; People v Wharton, 74 NY2d 921, supra). Conversely, prompt showup identifications by witnesses following a defendant’s arrest at or near the crime scene have been generally allowed and have never been categorically or presumptively condemned. In People v Brnja (50 NY2d 366), the defendant was apprehended less than a mile from the robbery scene and was transported in a police vehicle to the robbery scene, where he was identified by the victim 15 minutes after the crime was committed. This Court held that "there was no constitutional infirmity in [ ] the one-on-one showup at the scene in view of its proximity in time and location to the point of arrest” (id., at 372 [emphasis added]; see also, People v Hicks, 68 NY2d 234; People v Love, 57 NY2d 1023).

The circumstances of the showup identification of defendant by the employee in this case are within the permissible boundaries of the governing legal principles. The showup identification was made upon defendant’s return to the robbery scene approximately two minutes after his arrest, three to four minutes after the commission of the crime, and literally around the corner from the arrest scene. This was one unbroken chain of events — crime, escape, pursuit, apprehension and identifications — all within minutes and within a New York City block and a half.

The added nuance of this case is that the manager of the cleaning establishment had identified defendant at the scene of his arrest just before the employee showup identification took place. To be sure, that adds another feature of concern and heightened scrutiny. However, it does not as a matter of law alter the governing legal principles. Defendant’s argument that consecutive or cumulative witness identifications of a showup nature should be presumptively forbidden because the initial identification automatically negates the at-the-scene existence of exigent circumstances is not convincing. The variety of at-the-crime-scene civilian identifications of this nature is so great that they do not lend themselves to per se or presumptive rules. Temporal and spatial considerations become so intertwined that precious compartmentalization to discern levels of exigency, involving fast-paced street episodes and encounters, is unwarranted.

The judicial toleration of promptly conducted at-the-scene showups rests on our objective that the police have reasonable assurances that they have arrested or detained the right person. That societal interest should not be deemed automatically cast aside by the existence of a prior identification in this fast-moving, uninterrupted array of activity (see, People v Brnja, 50 NY2d, supra, at 372). Freezing the frame at the point of apprehension and initial identification and ignoring the uncertain, emergent realities and varieties of these street situations — as a matter of law from detached, distanced and deliberated perspective — is neither wise nor sensible.

We are not blind, however, to the reality that the defendant was shown to the employee-witness while he was handcuffed in the rear of the police car. This is suggestive and not preferred. It presses judicial tolerance to its limits. Nevertheless, the exigent circumstances presented by this situation allow for a supportable finding that the identification here was "not so unnecessarily suggestive as to create a substantial likelihood of misidentification” (People v Duuvon, 160 AD2d 653). The immediately preceding identification alone in these circumstances is not a basis for a presumptive rule of unacceptable suggestiveness as a matter of law and it is not a basis to override the fact findings made in full context by both lower courts.

In this case, it should also be noted that the first identification, made spontaneously by the pursuing manager, does not even qualify for categorization as a police-arranged street showup. The only police-arranged showup at issue in this case is the one by the employee and we have not previously condemned, based on a presumption or as a matter of law, a single at-the-scene showup identification.

The procedural check-and-balance against abuse and undue suggestiveness in circumstances such as these must lie in probing, even skeptical fact finding by the lower courts. Law enforcement officials, faced with rigorous review by the appropriate courts, will thus be made to understand that their evidence-gathering work will not be tolerated whenever routinized, unduly suggestive identification modalities taint or rob the evidence of reliability (see, People v Riley, 70 NY2d, supra, at 530-531).

Defendant’s remaining argument has been examined and found wanting.

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

Titone, J.

(concurring). I agree that there should be an affirmance because, in view of the virtually airtight proof of defendant’s guilt, any error in admitting evidence of the second showup identification procedure was harmless. I am compelled to write separately, however, because I cannot subscribe to the majority’s rationale, which upholds that procedure, in essence, by equating its temporal and geographic proximity to the crime with the element of exigency that the Due Process Clause concededly requires. Additionally, I cannot join in an opinion that advocates a case-by-case inquiry but provides no concrete standards or guidelines to aid in distinguishing permissible from impermissible showup procedures. Without such standards, the majority’s holding leads to the conclusion that, absent extraordinary circumstances, all "prompt on-the-scene” showups are permissible precisely because they are prompt and conducted at or near the crime scene. Ironically, this syllogism results in its own rule of "per se” or "presumptive” admissibility. Accordingly, I concur, but only in result.

It is elementary that the validity of police-arranged identification procedures are, in all cases, measured against the standards of due process (Stovall v Denno, 388 US 293). It is also elementary that in this context the due process analysis requires an inquiry into whether the procedure in question was unnecessarily suggestive (id.; see, 1 LaFave & Israel, Criminal Procedure § 7.4 [b]). As one commentator has observed, the "two constituent parts” of this two-pronged inquiry focus, respectively, on the suggestiveness of the procedure and the existence of "some good reason” for using it rather than a less suggestive identification method (id., at 581). Thus, one aspect of the test is concerned with accuracy while the other is concerned with expediency.

As to the accuracy or reliability prong, the Supreme Court has noted that, in general, "[t]he practice of showing suspects singly * * * has been widely condemned” (Stovall v Denno, supra, at 302). This is because the practice is inherently suggestive (see, e.g., People v Riley, 70 NY2d 523, 529; Wall, Eye-witness Identification in Criminal Cases, at 83). Nonetheless, due process may tolerate such "less than ideal” procedures when "the interests of prompt identification” are served (People v Adams, 53 NY2d 241, 249) or other exigent circumstances exist (e.g., People v Rivera, 22 NY2d 453).

The class of procedures generally referred to as "prompt on-the-scene showups” have heretofore routinely been analyzed within this framework. Such procedures are tolerated not because they are not suggestive, but rather because they serve legitimate and pressing law enforcement goals (see, 1 LaFave & Israel, op. cit, at 590 [and authorities cited therein]). Before this case, the most direct statement of the principle was made in People v Hicks (68 NY2d 234, 242), in which we observed that "speedy on-the-scene viewing[s]” are "appropriate” because they enable the authorities to decide quickly whether the person they have apprehended should be formally arrested (accord, People v Mercado, 63 AD2d 720; see, People v Love, 57 NY2d 1023, 1024 [prompt on-the-scene showups, although "less than ideal(,) may * * * be tolerable in the interest of prompt identification”]). Thus, while it is true, as the majority asserts, that prompt on-the-scene showups have generally been allowed (majority opn, at 544), it is also true, as the majority opinion itself later admits, that "judicial toleration of [these procedures] rests on our objective that the police have reasonable assurances that they have arrested or detained the right person.” (Majority opn, at 545.)

Viewed against this backdrop and its own formulation of the rule, the majority’s analysis is, to say the least, puzzling. The majority’s holding rests on its equation of the challenged procedure’s temporal and spatial proximity to the crime with the exigency element of the due process analysis. To support its position, the majority then invokes a series of phrases and concepts, including an "unbroken chain of events”, "fast-paced street episodes and encounters,” "fast-moving, uninterrupted array of activity” and "the uncertain, emergent realities * * * of these street situations” (majority opn, at 545). However, these phrases are insufficient to dispose of the due process problem presented by this appeal.

Postcrime street arrests are not juggernauts that must be permitted to run their own courses wherever they may lead merely because they are "fast-paced.” Moreover, contrary to the majority’s suggestion, there is no reason not to "[f]reez[e] the frame at the point of apprehension” (majority opn, at 545), and at all subsequent points, to assess compliance with the governing constitutional rules at each stage of the encounter. Under our system of judicial review, police-citizen street encounters must be treated as step-by-step processes, each phase of which must be individually assessed by a court acting in accordance with constitutional due process precepts. Indeed, that is precisely what our judicial role requires (see, e.g., People v De Bour, 40 NY2d 210).

This is not to suggest that police conduct such as that which occurred here was necessarily outside the realm of good police work. However, good police work and observance of due process are not always the same thing. While the former is a worthwhile goal for all who are interested in effective law enforcement, the latter must remain the center of our judicial inquiry when questions regarding the admissibility of evidence are placed before us.

As the majority itself has stated, defendant was apprehended after an "unbroken chain of events” beginning with the termination of the robbery and ending with his capture by the police after an uninterrupted chase (majority opn, at 545). The store manager whom defendant was charged with robbing identified him — promptly and positively — within moments after his arrest. So too did the taxicab driver who had driven defendant to the dry cleaning store, waited outside at his direction, and then drove defendant away while defendant held a gun to his head, with the store manager in pursuit. Surely, after those two identifications were made, the arresting officers, who had chased and subdued defendant as he alit from the taxi, had no doubt that they had the "right man” in custody and had no thought of releasing him whatever the outcome of any subsequent identification might be. Thus, the primary purpose of a "prompt on-the-scene showup” that even the majority posits had been served, and there was no real investigatory reason to bring defendant back to the robbery site to obtain an identification from yet another witness. The conclusion is therefore inescapable that the officers’ purpose in conducting the second showup was either to augment the existing trial evidence by generating a second admissible out-of-court identification or to "lock in” the witness’s memory of the accused perpetrator thereby ensuring a "positive” identification in court. Neither goal reflects the level of "exigency” that we have previously required.

Of course, these evidence-generating aims might not be so troublesome if prompt on-the-scene showup procedures provided an unequivocal assurance of accuracy. However, the circumstances which surround these one-on-one procedures also involve a high degree of suggestiveness, which gives rise, in turn, to a substantial risk of error. The risk is especially great in cases such as this one, where the second identifying witness is, or may be, aware that one or more other eyewitness identifications have already been made (see, People v Adams, supra; see also, People v Love, supra).

What is perhaps the most disturbing aspect of the majority’s present rationale is its failure to define a workable standard for evaluating the validity of "prompt on-the-scene” showups. The majority has rejected what it characterizes as a proposed "per se” or "presumptive” rule in favor of a "probing, even skeptical fact finding by the lower courts”, which must assess the "specific and varying circumstances in individual cases” (majority opn, at 546, 543) in light of "the governing legal principles.” (Majority opn, at 545.) However, the majority has not indicated what considerations should be weighed in the lower courts’ "probing” inquiry, what "governing legal principles” should be applied or what "specific facts and * * * circumstances” would warrant a finding of undue suggestiveness. Further, although "routinized, unduly suggestive identification modalities” are not to be tolerated (majority opn, at 546), it remains unclear what types of conduct would fall within the disapproved category.

Indeed, the majority’s holding in this case makes it difficult to foresee when, if ever, a "prompt on-the-scene showup” would be suppressed as unnecessarily suggestive. Despite their inherent suggestiveness, such procedures would all be deemed "necessary” under the majority’s analysis, precisely because they are "prompt” and conducted near the scene of the crime. And, even such additionally suggestive procedures as displaying the suspect in handcuffs and seated in the back of a patrol car would not be sufficient to render the procedure "unnecessarily suggestive” within the meaning of the well-established due process test. Given the majority’s tolerance for such practices in a case where the police were already sure that they had the "right man,” one is left to wonder what the "rigorous review” that the majority mandates (majority opn, at 546) really means.

For all of these reasons, I would hold that the second showup procedure involving the store employee who had witnessed the robbery violated defendant’s due process rights and ought to have been suppressed. The suppression of this evidence, however, need not lead to a reversal. At defendant’s trial, the manager of the dry cleaning establishment identified defendant as the person who had robbed her on two separate occasions within a 10-day period. Additionally, defendant was positively identified by the taxicab driver who had driven him to and from the robbery scene and had ample opportunity to observe him. The other proof included evidence that the store manager and the taxicab driver identified defendant on the street immediately after the robbery, the testimony of the police officer who chased and apprehended defendant after he ran out of the taxicab and, finally, an out-of-court admission by defendant that he had committed the robbery because he needed the money. Under these circumstances, there is no reasonable possibility that the jury might have reached a different conclusion if the identification testimony of the second store employee had been subtracted (see, e.g., People v Adams, supra, at 252). Indeed, this harmless error conclusion is strengthened by the fact that the second employee had not been in a position to observe the robber’s face during the first robbery incident and, consequently, she was the weaker of the two eyewitness-victims. Thus, the court’s decision to admit this witness’s identification testimony, while erroneous, does not require reversal. For that reason, and that reason alone, I concur in the Court’s decision to affirm.

Chief Judge Wachtler and Judges Kaye and Alexander concur with Judge Bellacosa; Judge Titone concurs in result in a separate opinion in which Judges Simons and Hancock, Jr., concur.

Order affirmed.

      . The two prior identifications of defendant as the robber are relevant to the validity of the third because they negate any conclusion that the latter was supported by exigency. The fact that the two prior identifications may or may not have been "police-arranged” (see, majority opn, at 546) is not pertinent to this inquiry.

      . Among the many subtle, and not so subtle, suggestive circumstances inherent in "prompt on-the-scene” showups are the facts that (1) the displayed individual has just been "caught and held” by the police, implying the police’s belief that they have the "right person” in custody and (2) the suspect is often displayed in handcuffs or crouched in the back of a patrol car — conditions suggesting criminality.


source: Caselaw Access Project

author: Hancock, Jr., J. Bellacosa, J.

license: Public Domain

text:
    Dunbar E. Catlin, an Infant, by Daniel Catlin et al., His Parents and Natural Guardians, et al., Respondents, v Thomas Sobol, as Commissioner of Education of the State of New York, et al., Appellants.
    Argued February 13, 1991;
    decided April 4, 1991

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Nancy A. Spiegel, O. Peter Sherwood and Peter H. Schiff of counsel), for Thomas Sobol, appellant.

      Edward J. Sarzynski for John Holdorf and another, appellants.

      Lawrence W. Thomas and James P. Drohan for respondents.

      Jay Worona and Cynthia Plumb Fletcher for the New York State School Boards Association, Inc., amicus curiae.

   OPINION OF THE COURT

Hancock, Jr., J.

The general rule is that a school district must provide free education to children whose parents or legal guardians reside within the district (see, Education Law § 3202 [1]; People ex rel. Brooklyn Children’s Aid Socy. v Hendrickson, 54 Misc 337, affd 125 App Div 256, affd 196 NY 551). Education Law § 3202 (4) (b) provides that ”[c]hildren cared for in free family homes and children cared for in family homes at board, when such family homes shall be the actual and only residence of such children and when such children are not supported and maintained at the expense of a social services district or of a state department or agency, shall be deemed residents of the school district in which such family home is located” (emphasis added). This appeal concerns the obligation of a school district to furnish tuition-free education to a mentally handicapped child whose parents reside outside of the district and who is cared for at their expense in a family home at board located within the district.

In an administrative appeal from the district’s refusal to provide free education in this case, defendant Commissioner of Education upheld the district. In rejecting the argument that the child was entitled to free education under Education Law § 3202 (4) (b) the Commissioner: (1) interpreted the phrase "actual and only residence of such children” as embodying substantially the same concepts as the general residency requirement in Education Law § 3202 (1) including the established common-law rule that a child’s residence is presumed to be that of the parents, and (2) found that under this interpretation of section 3202 (4) (b), in the circumstances of this case, the presumption had not been rebutted.

In the instant declaratory judgment action, the Appellate Division agreed unanimously with the Commissioner’s legal interpretation of section 3202 (4) (b). The three-Justice majority, however, determined that on this record the presumption that the child’s residence was that of his parents had been rebutted and that the district was obligated to furnish tuition-free education. On defendants’ appeal pursuant to CPLR 5601 (a), we now reverse. We agree with the Appellate Division’s interpretation of the statute. For reasons which follow, however, we disagree with that court’s holding that the presumption was overcome and its rejection of the Commissioner’s conclusion that the child’s residence was with the parents.

I

Plaintiff, Dunbar E. Gatlin (Dell), was born on April 22, 1973. He is afflicted with Down’s Syndrome, a congenital abnormality causing varying degrees of mental retardation. His parents, plaintiffs Daniel and Dundeen Catlin, who were then residents of the Town of Bedford, Westchester County, decided that Dell’s needs could best be met if he were given special care outside of their home. Accordingly, on May 7, 1973 they placed Dell with a "family home at board” operated by Samuel and Elizabeth Conde in Edmeston, New York. The Condes are licensed by the Social Services Department to care for handicapped children such as Dell until they reach the age of 18. Since his placement in 1973, Dell has lived continuously with the Condes and presumably will continue to do so until his 18th birthday.

The Gatlins bear the entire cost of Dell’s support and maintenance. They pay a monthly fee ($900 a month in 1986) for Dell’s room and board, and also for his clothing, medical expenses and incidental needs. They have surrendered none of their legal parental authority over Dell and could remove him from the Condes’ home at any time. The Gatlins visit Dell in Edmeston three or four times a year.

When Dell became five years old in 1978, he entered the educational program for handicapped children in the Edmeston school district under a tuition-reimbursement arrangement with the district where Dell’s parents resided, Bedford Central School District. The Bedford district determined that "since legally [Dell was] a resident of this district” it was obligated to pay the Edmeston district for the expenses of Dell’s education. On May 6, 1980, the Gatlins requested a meeting with the Bedford Committee on the Handicapped to discuss Dell’s education. At the meeting which ensued, plaintiff Daniel Catlin informed the committee that he had visited the Edmeston district and found Dell’s educational program to be satisfactory.

The Bedford district paid for Dell’s tuition until 1985 but declined further reimbursement to Edmeston when the Gatlins moved from Bedford to the State of Massachusetts. The Gatlins then requested that Edmeston admit Dell on a tuition-free basis and upon Edmeston’s refusal, appealed to the Commissioner. The Commissioner sustained Edmeston’s position.

Upon receipt of the Commissioner’s decision, the Gatlins commenced an action pursuant to 42 USC § 1983 in Federal District Court for the Northern District of New York alleging that the New York residency statute, as applied, is constitutionally infirm. After a hearing, the District Court determined that the residency statute, as applied by the Commissioner, violates the Equal Protection Clause and granted summary judgment to the Catlins (Catlin v Ambach, 644 F Supp 161 [ND NY 1986]). On appeal, the United States Court of Appeals for the Second Circuit vacated and remanded with instructions to retain jurisdiction "pending a resolution on the state law issue by the New York state courts.” (Catlin v Ambach, 820 F2d 588, 591 [2d Cir 1987].) The Second Circuit determined that because there was a potentially controlling question of State law — i.e., the meaning of "actual and only residence” in Education Law § 3202 (4) (b) — the Federal courts should abstain.

The Gatlins, individually and on behalf of Dell, then commenced this action for a declaratory judgment in Albany County. A separate action brought against them by the Edmeston district in Otsego County to recover Dell’s unpaid tuition was moved to Albany County and consolidated with the declaratory judgment action. Supreme Court granted summary judgment to the Catlins. It rejected the Commissioner’s interpretation of Education Law § 3202 (4) (b) as incorporating the presumption of residency and held that section 3202 (4) (b) creates a class of children who are not presumed to reside with their parents (141 Misc 2d 169, 172). The Appellate Division, as noted, in affirming with a divided court, disagreed unanimously with Supreme Court’s interpretation of the statute. Although all members of the court accepted the Commissioner’s view that the presumption of residence was embodied in the statute, a majority disagreed with his application of the statute in the circumstances of this case (Catlin v Sobol, 155 AD2d 24).

II

In deciding on the proper interpretation of the phrase "actual and only residence” in Education Law § 3202 (4) (b) we first look to the particular words for their meaning, both as they are used in the section and in their context as part of the entire statute (see, Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals, 77 NY2d 114; Price v Price, 69 NY2d 8, 13). But we may also consider the legislative history of the enactment and how it has been interpreted, bearing in mind "that in 'the interpretation of statutes, the spirit and purpose of the act and the objects to be accomplished must be considered. The legislative intent is the great and controlling principle’ (People v Ryan, 274 NY 149, 152)” (Ferres v City of New Rochelle, 68 NY2d 446, 451). Here, we have little difficulty in concluding, as did the Appellate Division, that the Commissioner’s interpretation is correct.

The question of how the Education Law is intended to operate in a case under section 3202 (4) (b) turns on the meaning of the word "residence” in the phrase "actual and only residence”. The Commissioner’s contention is that the word should be given its generally accepted common-law meaning — the same sense in which the term has been traditionally understood by the courts (see, e.g., Matter of Board of Educ. v Allen, 29 AD2d 24; Matter of Horowitz v Board of Educ., 217 App Div 233, 238-239) and by the State Education Department in applying various sections of Education Law § 3202. If given this interpretation, the term carries with it the established " 'presumption that the residence of the child is the residence of the parents. This presumption may be overcome by proof showing that the parties have surrendered parental control and that such control is being exercised by some other person with whom the child [lives].’ ” (Matter of Board of Educ. v Allen, supra, at 28, quoting Matter of Kuppler, 33 NY St Dept Rep [Educ] 407, 409; see, Matter of Horowitz v Board of Educ., supra, at 238-239.)

Plaintiff contends, however, that "actual and only residence” as used in section 3202 (4) (b) is virtually synonymous with "physical presence”. This is the interpretation adopted by Supreme Court in its holding that relinquishment of parental authority is not a relevant consideration and that "a clear reading of section 3202 (4) (b) created a class of children who are not presumed to reside with their parents.” (141 Misc 2d 169, 172, supra [emphasis added].) Plaintiff points to no language in the statute supporting the argument that "residence” in section 3202 (4) (b) should be given this special meaning, one that is different from the usual construction which has been given the term in various Education Law provisions (see, n 1, supra). Adopting plaintiffs interpretation would offend the accepted rules of construction that statutory words are generally construed according to their natural and obvious sense (McKinney’s Cons Laws of NY, Book 1, Statutes § 94) and that where the same word or phrase is used in different parts of a statute it will be presumed to be used in the same sense throughout (McKinney’s Statutes § 236).

The meaning of the term "residence” in section 3202 (4) (b) adopted by the Commissioner is consistent with the general scheme of Education Law § 3202 — the statute which sets out the framework for determining when and under what circumstances a school district is obligated to provide free education. The general rules under section 3202 are that a school district is bound to furnish tuition-free education only for children whose parents or legal guardians reside within the district (see, Matter of Buglione, 14 Ed Dept Rep 220, 221 [1975]); that where the parents or guardians reside outside of the district the child presumably resides outside the district also and is not entitled to free education; and that this presumption may be overcome by showing that the parents or guardians have given up parental control and that the child’s permanent domicile — i.e., the child’s "actual and only residence” — is within the district (see, Matter of Horowitz v Board of Educ., 217 App Div 233, supra; Matter of Buglione, supra, at 222-223; Matter of Van Curran, 18 Ed Dept Rep 523, 524).

Under the Commissioner’s interpretation of the statute, these general rules as to residency apply no differently in the particular circumstances covered by section 3202 (4) (bK-i.e., where the child is living in a free family home or a family home at board and the parents reside outside the district. This construction is consistent with the general scheme of the free education statute and furthers its purpose: mandating the provision of free education by a school district for its resident children but assuring that nonresident parents who have children within the district must pay tuition for them unless the presumption is overcome and it is established that their children’s "actual and only residence” is within the district.

There is no reason why a different rule should apply merely because a child of nonresident parents is being cared for within the district in a free family home or a family home at board and, thus, comes within section 3202 (4) (b). Indeed, the legislative history of the section demonstrates that the language "actual and only residence” was intended to assure that no different rule should be applied in circumstances covered by the section and that a district’s responsibility to provide free education would be limited to cases where the presumption is overcome and the child has established a permanent domicile in the home of the family providing the care (see, Bill Jacket, L 1973, ch 867, Mem in support of State Dept of Educ ["This bill * * * enacts a new subdivision (of Education Law § 3202) which provides * * * (that n)on resident children cared. for in family homes and not supported by a social services district may be required to pay tuition. * * * The principal purpose of the bill is to relieve school districts of the obligation * * * to bear the financial burden of educating nonresident children.”]).

In sum, we agree with the Commissioner’s reading of section 3202 (4) (b), which is reasonable and entirely consistent with the legislative purpose of obligating school districts to provide free education only for children who reside within the district. The interpretation urged by plaintiif — that a child’s "physical presence” in the district, standing alone and without regard to the retention of parental control and supervision, obligates a school district to provide free education — imposes a far heavier financial responsibility on districts in cases where the child is staying in a family home and comes under section 3202 (4) (b) than in other circumstances involving children of nonresident parents. There appears to be no plausible reason for imposing these additional and unnecessary burdens on school districts in situations coming under section 3202 (4) (b).

Ill

We turn to the propriety of the Commissioner’s decision that the presumption that Dell resides with his parents was not overcome. We note that the question of residency involves a determination of a mixed question of law and fact (see, Matter of Board of Educ. v Allen, supra, at 27-29; Matter of Van Curran, supra, at 524) and that where, as here, plaintiif has chosen to appeal the district’s decision to the Commissioner, the sole question on judicial review of his determination is whether it is arbitrary and capricious and without rational basis (see, Education Law § 310; Matter of Gundrum v Ambach, 55 NY2d 872, 873; Matter of Strongin v Nyquist, 44 NY2d 943, 945, appeal dismissed and cert denied 440 US 901).

From the record, it appears that the Gatlins have continuously assumed full financial responsibility for Dell. Indeed, Edmeston Central School District never considered Dell a resident and, thus, never assumed the costs of Dell’s education. From the time Dell began school, the parents’ school district — then Bedford Central School District — had assumed the costs. Although the parents have delegated Dell’s day-today care to the Condes, they retain complete legal authority over him and could revoke or modify the terms of the Condes’ custody arrangement at any time. Moreover, the Condes’ authority to care for Dell will terminate when he becomes 18 years old on April 22, 1991. Thus, it cannot be said as a matter of law that Dell has established a permanent residence with the Condes (see, Matter of Horowitz v Board of Educ., supra, at 238-239; Matter of Duffy, supra, at 26). Finally, as noted by the Commissioner in his decision, the Gatlins "have taken an active role in meeting with the committee of the handicapped of the Bedford school district to plan their son’s educational program”. On these facts, we cannot conclude that the Commissioner’s determination that the Condes’ family home was not Dell’s "actual and only residence” was without a rational basis.

It is contended, nevertheless, that the Commissioner’s decision lacks a rational basis because Dell has resided continuously with the Condes in the Edmeston district since shortly after his birth, does not have a room in the Gatlins’ home, and, indeed, has never visited them. Accepting this argument, we believe, would be tantamount to adopting plaintiffs’ contention that the phrase "actual and only residence” in section 3202 (4) (b) does not embody the presumption that the child’s residence is that of his parents and that "physical presence”, without more, satisfies the statute. For the reasons already noted (see, part II, supra), we believe such a rule should not be adopted.

Accordingly, the order should be reversed, with costs, plaintiffs’ motion for summary judgment denied, defendants’ cross motion for summary judgment granted, Dunbar Elliot Gatlin declared not to be a resident of the Edmeston Central School District, and the case remitted to Supreme Court, Albany County, for a determination of the tuition owed.

Bellacosa, J.

(dissenting). Dell Catlin was born with Down’s Syndrome in New York City 17 years ago. Three weeks after his birth, his parents placed him in Samuel and Elizabeth Conde’s “family home at board”. He has lived with them in the same home in Edmeston, New York, and has always referred to the Condes as his “Mama” and “Dad”. The record recites his total and personal integration and involvement in Edmeston, the only home he has ever known or considered to be his residence. He has never resided with or even visited his natural parents in their home in Bedford, New York, or now in Massachusetts, though they have visited him at the Condes’ a few times a year. Since he was five years of age, Dell Catlin has been educated through a program for the handicapped in the Edmeston School District.

Despite these overwhelming uncontroverted facts, the Court rules by legal axiom that Edmeston is not Dell Gatlin’s “actual and only residence,” as that term is used in Education Law § 3202 (4) (b). The residence of his natural parents is simply imposed upon him. We respectfully dissent and vote to affirm.

Persons over the age of 5 and under age 21 are entitled to a free public education in New York “in the district in which [they] reside[ ]” (Education Law § 3202[1]; see, NY Const, art XI, § 1). Residence is not defined in that subdivision of the Education Law and, in general, is determined by applying common-law principles on a case-by-case basis. The hoary presumption that children’s residences are with their parents is part of that common-law heritage. However, the residence of children placed in family homes at board, like Dell Catlin, is specifically and separately defined in Education Law § 3202 (4) (b). That section states that children who are not supported and maintained at the expense of a social service district or State department or agency, and who are cared for in free family homes and family homes at board that are their "actual and only residence”, “shall be deemed residents of the school district in which such family home is located” (emphasis added).

Thus, the residence definition pertinent to this case could not be clearer. Nevertheless, the majority, agreeing with the former Commissioner of Education, ignores the plain statute and the rule of construction which dictates that a general provision must yield to an applicable specific provision (McKinney’s Cons Laws of NY, Book 1, Statutes § 238). Instead, the Court reverts to a rebuttable legal fiction, a rule of thumb, to countermand diametrically opposite facts and the distinct statutory classification protecting this youngster. This approach contradicts and displaces the plain meaning of the modifiers "actual and only,” as well as the defining clause deeming the residence to be the place where the family home at board is located (Education Law § 3202 [4] [b]).

If the words " ‘actual and only residence’ ” in their "natural and obvious sense” (majority opn, at 559, 560) do not determine Dell Gatlin’s residence, then we are unable to conceive of a situation in which the specially designed statutory phrase will be given efficacy. The record evidence defies the legal fiction declared applicable by the majority.

Indeed, the Second Circuit Court of Appeals in another stage of this very litigation — albeit while abstaining from deciding the merits and constitutional issues — noted that "[a] literal reading of [section] 3202(4)(b) would seem to require that Dell be considered a resident of Edmeston” (Catlin v Ambach, 820 F2d 588, 590). We see no basis, after abstention by a Federal court, to disagree with that simple articulation.

As we understand their analysis, the majority refuses to apply section 3202 (4) (b) for the same reasons relied on by the former Commissioner — because the Gatlins have not severed their formal legal ties to their son and have not withdrawn all financial support from him. Of course, no such draconian conditions have been imposed by the Legislature in order to qualify for the protection of section 3202 (4) (b). Indeed, it is inconceivable that the Legislature would have wanted to induce parents to cease all financial support in contravention of existing statutory support obligations and to renounce their developmentally disabled children in order to qualify for a free education in instances where parents seek stable placements — sometimes permanent, as here — and education for those children away from the natural parents’ home. In any event, implied incorporation of these two conditions clashes with the explicit language of section 3202 (4) (b) purporting to govern placements in homes at board. The Legislature, when it used this term, had to believe and no doubt intended that certain parental financial support as well as the natural parental legal tie would be continued.

Concededly, fiscal implications flow from imposing the financial responsibility to educate children who "actually and only” reside in a family home at board on the school district where that home is located. However, the Legislature, we respectfully submit, has made that policy choice in section 3202 (4) (b) and it is the Legislature’s to make in these circumstances. This Court has said that "arguments * * * addressed to the economic and political wisdom of the cost allocation scheme set out in [section 3202] [are] outside the scope of judicial review” (Matter of Jeter v Ellenville Cent. School Dist., 41 NY2d 283, 287). "[I]f relief be needed or desired, address must be to the Legislature” (id., at 288).

Moreover, local educational fiscal concerns with respect to this kind of issue are counterbalanced, if not entirely overcome, by transcendent State-wide policy considerations. The undeviating focus of the pertinent provisions in the Education Law is the right of New York children to a free public education (see, NY Const, art XI, § 1). Few things in our society are more fundamental. Inasmuch as the child is the one guaranteed an education by the State, the child’s circumstance and actual residence ought to dictate the resolution of this issue within the commands, of course, of the statute. The State’s parens patriae interest is surely implicated here, where a developmentally disabled New York child’s natural parents are no longer State residents and the youngster has continuously lived and received a special education in Edmeston and wishes to continue doing so. Dell Gatlin’s constitutional and statutory entitlement to a free public education is not fulfilled or answered by the legal ultimatum directed at his out-of-State natural parents: either pay tuition to the school district where he actually and only resides or withdraw him from the only home and school he has ever known.

Even assuming that the common-law presumption can be "deemed” applicable to this case for residency determination under Education Law § 3202 (4) (b), then the majority at the Appellate Division is convincingly correct that the rebuttable axiom was overcome by the overwhelming facts of this case, just as the presumption was overcome in an appeal recently decided by the present Commissioner (Matter of Deborah V., 29 Ed Dept Rep 176). The majority unsuccessfully attempts to distinguish this case by pointing to different facts which do not effect a legal distinction from the applicable analytical principles of law. It also suggests that the Appellate Division and we would apply the wrong standard of review. This is primarily a statutory construction case and, self-evidently, we are suggesting that this Court perform its traditional and nondelegable function to construe the statute — in this instance, for the very first time. Besides, the former Commissioner’s application of the statute in this case, apart from construing it contrary to its facial wording, is irrational in law even under the majority’s proposed review test. Again, we are unable to conceive of more compelling circumstances in which the presumption would be overcome if not here, where the developmentally disabled youngster has been physically, i.e., "actually”, and continuously, i.e., "only”, residing in the same home at board since the age of three weeks and has never even visited his natural parents’ residence.

The majority places some reliance on the assumption by the Bedford Central School District (the former residence of the natural parents) of the financial responsibility for Dell Gatlin’s tuition in past years. The argument is that this is some evidence that Bedford, not Edmeston, was at one time the youngster’s legal residence. However, the reimbursement arrangement between Bedford and Edmeston is irrelevant to the resolution of the statutory issue framed by this case in the present circumstances. As the majority at the Appellate Division recognized, "[bjecause there has never been a determination by the Commissioner or the courts that the Bedford Central School District was legally responsible for Dell’s tuition, its assumption of that responsibility was purely voluntary and has no bearing on the legal issue presented in this case.” (Catlin v Sobol, 155 AD2d 24, 31.) This is especially so since the natural parents are no longer even residents of the State of New York.

Determining whether a family home at board is a child’s "actual and only” residence is fact-laden and necessarily requires case-by-case scrutiny. Facile application of the cold formalism that children are deemed to reside with their natural parents in genuine circumstances such as presented here is plainly wrong, because presumptions and legal fictions, while they may simplify cases, are not proper substitutes for individualized analysis and determination. "[Wjhatever may be the practical problems of administration engendered by the present statutory formulation * * * there is no warrant in this statute nor in its legislative history” for interposition of a common-law presumption in the modern, more enlightened circumstances reflected by the problem at issue (Matter of Jeter v Ellenville Cent. School Dist., 41 NY2d, supra, at 287-288).

Therefore, we vote to affirm the grant of the petition, as directed by both lower courts.

Chief Judge Wachtler and Judges Simons, Kaye and Alexander concur with Judge Hancock, Jr.; Judge Bellacosa dissents and votes to affirm in a separate opinion in which Judge Titone concurs.

Order reversed, with costs, plaintiffs’ motion for summary judgment denied, defendants’ cross motion for summary judgment granted, Dunbar Elliot Gatlin declared not to be a resident of the Edmeston Central School District, and case remitted to Supreme Court, Albany County, for further proceedings in accordance with the opinion herein.

      . The Education Department has historically embraced the presumption that the residence of a child is with his or her parents (see, Matter of Delgado, 24 Ed Dept Rep 279; Matter of Bunk, 22 Ed Dept Rep 38; Matter of Shelmidine, 22 Ed Dept Rep 206; Matter of Fichtner, 22 Ed Dept Rep 119; Matter of Van Curran, 18 Ed Dept Rep 523; Matter of Buglione, 14 Ed Dept Rep 220; Matter of Duffy, 75 St NY Dept Rep [Educ] 25; see also, Matter of Staulcup, 20 Ed Dept Rep 11; Matter of Tiger, 16 Ed Dept Rep 178; Matter of Kirby, 10 Ed Dept Rep 139; Matter of Morello, 9 Ed Dept Rep 130 [cases finding presumption rebutted where parents relinquished care and control of child]).

      . There is no dispute that Edmeston school district will continue to provide educational services to Dell. We stress that what is at issue here is only whether Edmeston school district must bear the costs of Dell’s education (cf., Rabinowitz v New Jersey State Bd. of Educ., 550 F Supp 481, 483 [D NJ 1982]).

      . [3] We agree with the Appellate Division that the fact that plaintiffs initially challenged the Commissioner’s ruling in Federal court and are now proceeding by declaratory judgment action to resolve an issue of State law does "not result in a different standard of review than that which would have been applied had plaintiffs sought direct State court review of the determination.” (155 AD2d 24, 27.)

      . We are not deciding the issue of residency as a factual matter, as the dissent suggests. Rather we are reviewing the Commissioner’s determination under a rationality test. On this record, the determination is rational. The authority cited by the dissent (dissenting opn, at 565) to support its conclusion that the presumption was overcome here is inapposite. In Matter of Deborah V (29 Ed Dept Rep 176), the Commissioner found that the 16-year-old child’s parents had relinquished custody and control and, thus, that the presumption that the child resided with his parents was overcome. There, the findings were that the father allegedly had abused the child before he left the family home, the father had removed the child as a dependent for purposes of public assistance and, for over a year, had had no contact with the child; the mother had moved to Florida and had not seen the child for over one year.


author: Chief Judge Wachtler.

text:
    Ling Ling Yung, Individually and as Administratrix of the Estate of Man Kwong Yung, Deceased, Appellant, v County of Nassau, Respondent, et al., Defendants.
    Argued March 22, 1991;
    decided April 25, 1991

      POINTS OF COUNSEL

      George Schwarz for appellant.

      Robert W. Schmidt, County Attorney (Barbara-Anne Roberto of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge Wachtler.

Appellant Ling Ling Yung, administratrix of the estate of Man Kwong Yung, commenced a wrongful death action against the respondent County of Nassau by service of summons and complaint on its County Clerk pursuant to CPLR 311 (4), which applies to suits brought against a county and requires that personal service be made upon the county’s chairperson or clerk of the board of supervisors, clerk, attorney or treasurer. The respondent County of Nassau moved for dismissal of the action based on lack of jurisdiction over the County. Section 11-4.0 of the Nassau County Administrative Code requires that a party suing the County serve the Nassau County Executive or Attorney. Because Yung had served the County Clerk and not the County Executive or Attorney, as required by Nassau County law, service was deemed defective and Supreme Court dismissed the action as against the County. The Appellate Division affirmed, relying on its decision in Horowitz v Incorporated Vil. of Roslyn (144 AD2d 639), and certified the following question to this Court: "Was the order of this court properly made?”

It is well established that " '[a] general statute will repeal special or local acts without expressly naming them, where they are inconsistent with it, and where it can be seen from the whole enactment that it was the intention of the legislature to sweep away all local peculiarities thus sanctioned by special acts, and to establish one uniform system.’ ” (People ex rel. Fleming v Dalton, 158 NY 175, 184, quoting Black, Interpretation of Laws § 153; see also, Crawford v City of New-burgh, 231 App Div 613, 614-615.) Section 11-4.0 of the Nassau County Administrative Code predates the CPLR and applies specifically to actions brought against Nassau County. We conclude, based upon the broad scope of the CPLR and the Legislature’s clear intention that the CPLR standardize the State’s civil practice, that the special local statute must give way to the later general one. Both parties concede that CPLR 311 and section 11-4.0 of the Nassau County Administrative Code are completely inconsistent and cannot be reconciled.

Although, according to CPLR 101, the CPLR governs "the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute” (emphasis added), we agree with the appellant that this language refers to specialized practice and procedure in Supreme Court and before such courts as the district, city, town and village courts, or other inconsistent procedural provisions in statutes of general applicability (see, e.g., Town Law § 267 [7]; Village Law § 7-712 [3]; General City Law § 38).

Our examination of the legislative history has led us to conclude that CPLR 101 is best understood as a response to the reorganization of the court system that was undertaken at roughly the same time as the CPLR was drafted. The lower courts of civil jurisdiction, which were governed by special statute and which survived the creation of the Unified Court System, were intended to be made part of that system’s unified practice and procedure, as embodied by the CPLR, as far as possible. As part of this reorganization of the judiciary, many of the individual court acts were completely revised. A new Family Court Act was passed. The Uniform District Court Act, the Uniform City Court Act, an amended New York City Civil Court Act, and a Uniform Justice Court Act (applying to all town and village courts) were drafted to provide uniform practice and procedure within those courts, and further, contained the same numbering system so that the different acts were uniform with respect to each other.

The drafters of the different statutory and constitutional provisions that brought about this multifaceted overhaul of New York’s judicial system recognized that certain courts had special needs and jurisdictional limitations. As a result, they stated explicitly in the court acts that were adopted following the creation of the Unified Court System that the CPLR was to be applicable only to the extent that it was not inconsistent with the more specific provisions contained in the individual court acts (see, CCA 2102; UDCA 2102; UCCA 2102; UJCA 2102; see generally, Siegel, General Practice Commentary on Lower Court Acts [CCA, UDCA, UCCA and UJCA] and Their Background, McKinney’s Cons Laws of NY, Book 29A). Based upon our reading of the legislative history, CPLR 101 is a parallel provision, providing that the CPLR is to govern civil practice and procedure, but only to the extent that it is not inconsistent with the procedure of the individual courts as described in their court acts.

Supreme Court, Nassau County, is not a special court of limited jurisdiction. It is a court of general jurisdiction. There is no indication anywhere in the CPLR’s legislative history that the drafters intended localities in which Supreme Court sits to be able, in effect, to opt out of the CPLR and continue to rely upon special service of process rules that exact an unfair disadvantage from attorneys not familiar with local procedure. In fact, all the legislative history points to the opposite — that under the CPLR, procedure was to be regularized to the maximum extent possible and that anomalies were to be tolerated only in certain specific instances and in courts that traditionally possessed narrower jurisdiction and that had specialized rules and practice. To allow the County to continue to impose more stringent service of process requirements and to hold attorneys to a higher standard would undermine the uniformity and compromise the predictability of the CPLR.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the defendant County of Nassau’s motion to dismiss denied. The certified question should not be answered as unnecessary.

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

Order reversed, etc.