text:
    In the Matter of the Estate of Sid Riefberg, Also Known as Sidney Riefberg, Deceased. Henrietta Riefberg, as Executrix of Sid Riefberg, Deceased, Appellant; Maria C. Riefberg, Respondent. (And Another Proceeding.)
    Argued January 5, 1983;
    decided February 17, 1983

      POINTS OF COUNSEL

      Daniel N. Fiorie for appellant.
    I. The Court of Appeals has jurisdiction under CPLR 5602 (subd [a], par 1). II. Failure to deny allegations in a complaint is an admission of the allegation. III. Justification or lack of justification can be gleaned from the facts of the case. (Matter of Prince, 36 AD2d 946.) IV. The burden of proving justification or no justification should shift to respondent surviving spouse if the estate meets all other requirements of abandonment. (Matter of Sitkin, 151 Misc 448; Matter of Prince, 36 AD2d 946.) V. The phrase “in trust or otherwise” is ejusdem generis and, therefore, the word “otherwise” must mean trustlike and cannot be considered all inclusive. VI. A contract not involving equitable ownership and fiduciary rights and duties is not a trust or trustlike document. VII. A corporation is a distinct entity with rights and duties and is considered a person when used in a statute. VIII. A surviving spouse can only elect against a testamentary substitute if it is enumerated in one of the five categories under EPTL 5-1.1 (subd [b], par [1], cl [E]). (Matter of

      Zeigher, 95 Misc 2d 230.) IX. A stockholders’ agreement is a valid testamentary disposition and not a testamentary substitute subject to the right of election. (Matter of Hillowitz, 22 NY2d 107; Newman v Dore, 275 NY 371.) X. A payment of money paid pursuant to a death benefit plan is specifically exempted from the right of election.

      Richard M. Resnik and Joel A. Feerst for respondent.
    I. The order of the court below should be affirmed; petitioner failed to present any evidence from which it could be concluded that respondent abandoned the decedent. (Matter of Maiden, 284 NY 429; Matter of Lapenna, 16 AD2d 655, 12 NY2d 671; Matter of Christesen, 277 App Div 893; Matter of Sadowski, 246 App Div 490; Matter of Lamos, 63 Misc 2d 840; Matter of Campbell, 186 Misc 842; Matter of Loeb, 77 Misc 2d 814; Matter of Holman, 46 Misc 2d 809; Matter of Rechtschaffen, 162 Misc 374; Schine v Schine, 36 AD2d 300, 31 NY2d 113.) II. The order of the court below should be affirmed; the courts below correctly determined that the stock purchase agreement, as amended, was a testamentary substitute under EPTL 5-1.1 (subd [b], par [1], cl [E]). (People ex rel. Wood v Lacombe, 99 NY 43; Rankin v Shanker, 23 NY2d 111; Matter of Agioritis, 40 NY2d 646; People v Reilly, 255 App Div 109.)
   OPINION OF THE COURT

Fuchsberg, J.

This appeal is taken from an order of the Appellate Division, Second Department, which affirmed two decrees of the Surrogate’s Court, Nassau County. In one proceeding, the principal question, apparently of first impression in our appellate courts, calls for the determination of whether a buy-sell provision of a corporate stockholders’ agreement to which the decedent was a party can be a testamentary substitute includable in evaluating the estate against which his surviving spouse may exercise her statutory right of election (EPTL 5-1.1). To test the right of the widow, who was the decedent’s second wife, to raise the testamentary substitute issue, the other proceeding with which we here are concerned litigates a claim that she forfeited her right to elect by unjustifiably abandoning her husband during his lifetime (EPTL 5-1.2).

In his will, executed in 1967, the decedent, Sid Riefberg, named his former wife, Henrietta Riefberg, executrix and, save for a $500 bequest to his daughter by the second wife, Maria Riefberg, left his entire estate to Henrietta and her four adult children. Since the will made no provision for Maria, she filed a spousal election, which Henrietta, as executrix, challenged, as relevant on this appeal, on the theory that Maria had constructively abandoned the decedent. However, the Surrogate, noting that, while the executrix produced proof that a time had come when Maria requested that the locks on their marital apartment be changed and that the decedent be excluded therefrom, and that, at the time of his death, the couple still was residing apart, concluded that this evidence, standing alone, was insufficient to establish the estate’s theory. So he decreed, on the merits, that Maria, as surviving spouse, was entitled to elect.

Armed with this decree, Maria then instituted the proceeding aimed at a determination that the interest to be disposed of by the shareholders’ agreement is an integral part of the estate on which her elective share is to be computed.

Decedent and his brother, each the owner of one half of its shares, were the only stockholders of the close corporation to which the agreement pertained. For a long time, this buy-sell arrangement obligated the corporation to purchase the shares of a deceased stockholder from his personal representative, the proceeds thus becoming eátate assets. However, within 24 hours before decedent’s death, which followed his hospitalization for a terminal illness, he and his brother executed a hand-written “Amendment of Stockholders’ Agreement”, which provided for direct payment of the entire value of the decedent’s shares directly to Henrietta, her four children and another individual.

After a hearing, finding as a matter of fact and law that the disposition thus made constituted a testamentary substitute within the compass of EPTL 5-1.1 (subd [b], par [1], cl [E]) and, as such, did not place it beyond the reach of Maria’s election, the Surrogate again ruled in her favor (107 Misc 2d 5). The ensuing decree therefore directed the executrix to file an accounting in which the avails of the stock would enter into the calculation of her statutory share.

On appeal, a unanimous Appellate Division has since affirmed both decrees, without opinion. For the reasons which follow, we now uphold its determination.

In our own analysis, the threshold issue of abandonment poses no particular problem. It is axiomatic that, to challenge a spouse’s right of election on this account, more must be shown than a mere departure from the marital abode and a consequent living separate and apart (e.g., Matter of Maiden, 284 NY 429; Matter of Rose, 15 AD2d 983). Sensitive to the reality that marital partnerships; no matter how knowingly entered upon “for better or for worse”, still run the range of conflicts common to all human relationships, the law has long required that one who seeks to impose such a forfeiture must, in addition, establish, as in an action for separation, that the abandonment was unjustified and without the consent of the other spouse (Matter of Maiden, supra, at pp 432-433; see Schine v Schine, 31 NY2d 113, 119).

True, as the estate here argues, given the handicap presented by the absence of the testator, it may be very difficult to carry this burden (see Matter of Lamos, 63 Misc 2d 840, 843-844 [Sobel, S.]), though, because of the strictures of the “Dead Man’s Statute” (CPLR 4519), the surviving spouse too is, to say the least, hardly unimpeded in his or her presentation (id., at p 843; see Matter of Fishman, 32 AD2d 1063, affd 27 NY2d 809). In the face of these evidentiary barriers, which need not be lost on the trier of the facts (cf. Noseworthy v City of New York, 298 NY 76), it is hardly surprising that, in this context, almost always “[t]he question of abandonment is one of fact, and often a close one” (9A Rohan, NY Civ Prac, EPTL, par 5-1.2[6], pp 5-230 — 5-231).

In the present case, the Surrogate’s findings having been affirmed by the Appellate Division, we could disturb the one on justification only were we to conclude that there was no evidence or inferences therefrom to support it (Laufer v Ostrow, 55 NY2d 305, 311-312; Matter of MacDonald, 40 NY2d 995). On this record, we are unable to do so.

Maria’s status established, we now focus on whether the shareholders’ agreement indeed is a testamentary substitute. The answer ultimately must rest on our interpretation of EPTL 5-1.1 (subd [b], par [1], cl [E]), which defines the category of testamentary substitutes in which the courts below placed it as “[a]ny disposition of property made by the decedent * * * in trust or otherwise, to the extent that the decedent at the date of his death retained, either alone or in conjunction with another person, by the express provisions of the disposing instrument, a power to revoke such disposition or a power to consume, invade or dispose of the principal thereof”.

Since the statute is the product of legislative efforts to reshape principles which theretofore had prevailed in the law regulating descent and distribution, an historical survey will illumine its intention. This may well begin with the reform recommended by the Foley Commission when, in 1928, it proposed the abolition of dower and curtesy, which, in the common-law tradition, not only tended to restrict the free alienation of property, but also limited the rights of surviving spouses (see Combined Reports of Commission to Investigate Defects in the Laws of Estate, NY Legis Doc, 1928, No. 70, p 18). To this the Legislature was to respond by substituting — for the first time in New York — a spousal right of election (L 1929, ch 229, eff Sept. 1, 1930).

But, the new legislative scheme, in actual operation, fell short of its objective. For the removal of the restraints formerly imposed by dower and curtesy made it possible to circumvent the newly afforded spousal right by gratuitous inter vivos transfer (Amend, Surviving Spouse and the Estates, Powers and Trusts Law, 33 Bklyn L Rev 530, 531-532), a development which, interestingly enough, was not completely unenvisioned by the commission itself (see NY Legis Doc, 1928, No. 70, pp 18, 171, citing Barry, Modernizing the Law of Decedents’ Estates, 16 Va L Rev 107, 109; see, also, Note, Proposed Changes in the New York Law of Estates, 28 Col L Rev 1088, 1094).

In an attempt to right the balance, courts then developed a decisional response, attuned to the ill-defined doctrine labeled the “illusory transfer”, to deal with legal attacks on the bona fides of transactions adverse to surviving spouses (9A Rohan, op. cit., par 5-l.l[6][c]). However, the consequent state of flux (see Matter of Agioritis, 40 NY2d 646, 648-649; compare Matter of Crystal, 39 NY2d 934, with id., at pp 936-940 [dissenting opn]) led the Legislature, in authorizing the creation of what came to be known as the Bennett Commission, to charge it, among other things, with the formulation of legislation to close the gap (Matter of Agioritis, 40 NY2d, supra, at p 649). The efforts culminated in sweeping changes affecting testamentary substitutes (Third Report of Temp Comm on Modernization, Revision and Simplification of the Law of Estates, Report No. 1.5c, NY Legis Doc, 1964, No. 19, pp 122-141).

The Bennett Commission’s reports are instructive. They tell us that it considered the subject of stock purchase agreements and, analogizing them to trusts in which decedents retain a life interest, concluded that these should be regarded as testamentary substitutes (Third Report, NY Legis Doc, 1964, No. 19, p 129, nn 96, 97). To this end, it initially framed a proposed statute, which, modeled after one in Pennsylvania (id., p 141) (the Pennsylvania statute thereafter was to be construed as authorizing a right of election against such agreements [Matter of Burk, 37 Pa D & C2d 528]), comprehensively spoke, as indicated above, of any disposition “in trust or otherwise” (emphasis supplied).

But, while the matter was still in legislative committee, interested parties advanced proposals that the contemplated statutory definition of testamentary substitute be confined by excluding specified rights accruing upon a testator’s death. These efforts brought about an addition, in the form of an exclusionary clause, now EPTL 5-1.1 (subd [b], par [2]). As the commission’s reports expressly go on to point out, while paragraph (2) thus excluded “pension plans”, “insurance proceeds”, “profit-sharing plans”, “stock options”, “stock bonuses”, and “deferred compensation plans”, it is telling that, in stark contrast to this enumeration of exceptions to paragraph (1), none was made for stockholders’ agreements (Fourth Report of Temp Comm on Modernization, Revision and Simplification of the Law of Estates, NY Legis Doc, 1965, No. 19, pp 148-150). Instead, other than as restricted by paragraph (2), paragraph (1) was unchanged.

Nevertheless, Henrietta, as the executrix, urges us to construe the statute even more narrowly. To support this position, in the main, she essays a twofold approach. Invoking the ejusdem generis rule of construction, she would have us read the statutory phrase “in trust or otherwise” as limiting its application to transactions “trust-like” in nature. Moreover, she would have us subscribe to a particular commentator’s theory that shareholder agreements should not be classified as testamentary substitutes since “[a]ny contract can be abrogated by mutual consent” (Rohan, Practice Commentary, McKinney’s Cons Laws of NY, Book 17B, EPTL 5-1.1, pp 41-42). These arguments are unpersuasive.

The answer to the first of these contentions is that, while the ejusdem generis rule, by which a series of specific words describing things or concepts of a particular sort are used to explain the meaning of a general one in the same series (see People v Illardo, 48 NY2d 408, 416) frequently is resorted to as an interpretative rule, it is rare that a single word, though illustrative of a particular genus or idea will reliably reveal the intent behind a general one (Alexander v Tredegar Iron & Steel Co. [1945] AC 286, 297 [L. Wright]; London County Council v Tann [1954], 1 WLR 371, 1 All Eng L Rep 389). The employment of the word “otherwise” in “trust or otherwise” therefore is better taken literally to mean “different from” a trust (Webster’s New International Dictionary [2d ed], p 1729), a definition which, not surprisingly, dovetails with the Legislature’s “evident purpose” (McKinney’s Cons, Laws of NY, Book 1, Statutes, § 239, p 409; 2A Sutherland, Statutory Construction [Sands, 4th ed], § 47.22, p 18; cf. Matter of Kleefeld, 55 NY2d 253, 259-260).

Nor, in this context, can shareholders’ agreements be brushed off by likening them to the abrogation of “any contract”. For one thing, the agreement here was the means by which the decedent not only controlled the beneficial enjoyment of the property right at stake, but stripped the estate of assets which should have been subject to his surviving spouse’s right to her elective share. Indeed, its “express provisions” enabled the decedent, in terms of an appropriate use of ejusdem generis, to retain a power to “revoke”, “consume”, “invade”, or otherwise “dispose” of the corpus. Thus, the agreement itself, by expressly providing for the manner of its termination, fell squarely within the express statutory definition of the category of testamentary substitute which here has been our concern (EPTL 5-1.1, subd [b], par [1], cl [E]).

Accordingly, the order of the Appellate Division should be affirmed, with costs payable out of the estate to all parties appearing separately and filing separate briefs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons concur.

Order affirmed, etc.


source: Caselaw Access Project

author: Meyer, J.

license: Public Domain

text:
    Jean Loretto, on Behalf of Herself and All Others Similarly Situated, Appellant, v Teleprompter Manhattan CATV Corp. et al., Respondents.
    Argued January 5, 1983;
    decided February 17, 1983

      POINTS OF COUNSEL

      Michael S. Gruen, Daniel J. Sullivan and Eric B. Levine for appellant.
    I. This is an action in trespass to which section 828 affords no defense and which is properly maintainable in the courts. (Bunke v New York Tel. Co., 110 App Div 241, 188 NY 600; Osborne v Auburn Tel. Co., 189 NY 393; Butler v Frontier Tel. Co., 186 NY 486; Budholtz v Rochester Tel. Corp., 65 Misc 2d 1071, 40 AD2d 283, 33 NY2d 939; Matteson v Antenna-Vision, Inc., 54 Misc 2d 859; New York Tel. Co. v Town of North Hempstead, 41 NY2d 691; French Investing Co. v City of New York, 39 NY2d 587, 429 US 990; Lutheran Church in Amer. v City of

      New York, 35 NY2d 121; De Camp v Bullard, 159 NY 450.) II. The proper measure of damages is the rental value of the rights exploited. (De Camp v Bullard, 159 NY 450; City of New York v Fink, 130 Misc 620; McKegney v VanBeuren & N. Y. Bill Posting Co., 183 App Div 53; Zenith Bathing Pavilion v Fair Oaks S. S. Corp., 211 App Div 492, 240 NY 307; Bunke v New York Tel. Co., 110 App Div 241,188 NY 600; Lubelle v Rochester Tel. Corp., 70 Misc 2d 640; United States v Pewee Coal Co., 341 US 114; General Ice Cream Corp. v State of New York, 199 Misc 620, 279 App Div 822; Mazzeo v State of New York, 58 Misc 2d 186.) III. Plaintiff and the class are entitled on summary judgment to an award of damages amounting to 5% of gross revenues per building since January 1, 1973. (Matter of Napolitano [MVAIC], 21 NY2d 281; Matter of Kovarsky v Housing & Dev. Admin. of City of N. Y., 31 NY2d 184; Persky v Bank of Amer. Nat. Assn., 261 NY 212; Schwartz v Greenberg, 304 NY 250; People’s Cable Corp. v City of Rochester, 70 Misc 2d 763,41 AD2d 585; Harper v City of Kingston, 17 Misc 2d 627.) IV. This court should not direct that plaintiff is not entitled to an injunction nor that TelePrompter may avoid an injunction by paying permanent damages. (Van De Carr v Schloss, 277 App Div 475; Poughkeepsie Gas Co. v Citizens’ Gas Co., 89 NY 493; Heyman v Biggs, 223 NY 118; Coatsworth v Lehigh Val. Ry. Co., 156 NY 451; Scroll Realty Corp. v Mandell, 195 Misc 972; Blakeslee v Punnett, 48 AD2d 641; Eels v American Tel. & Tel. Co., 143 NY 133; New York Tel. Co. v Town of North Hempstead, 41 NY2d 691; Marullo v Chresafis, 48 Misc 2d 53; Amsterdam Knitting Co. v Dean, 162 NY 278.) V. Amendment of the class action order should be permitted to clarify that former owners are included in the class and Neilson Abeel should be permitted to intervene as a coplaintiff and class representative. (Mann v Columbia Petrolera Trans-Cuba, 17 AD2d 193; Albert v Salzman, 41 AD2d 501; Oppenheimer v Young & Co., 144 F2d 387; Matter of Village of Spring Val. v Village of Spring Val. Housing Auth., 33 AD2d 1037; Albert v Salzman,. 41 AD2d 501.)

      Michael Lesch and John G. Nicolich for Teleprompter Manhattan CATV Corp. and another, respondents.
    I. This court should adhere to its prior order affirming dismissal of the complaint because section 828 and the commission’s rules provide a reasonable procedure for determining just compensation for landlords. (United States v Merz, 376 US 192; Lafayette Hotel Co. v County of Erie, 26 Misc 2d 755; United States v Jones, 109 US 513; McGovern v New York, 229 US 363; Gigliotti v Redevelopment Auth. of City of New Castle, 362 F Supp 764, 492 F2d 1238; Iroquois Gas Corp. v Gernatt, 50 Misc 2d 1028, 28 AD2d 811, 22 NY2d 694; Matter of City of New York [Exterior St.], 285 NY 455; Matter of City of New York [Braddock Ave.], 278 NY 163, 703; Matter of City of New York [Decatur St.], 196 NY 286.) II. If the complaint is not dismissed, the matter should be remanded to the trial court with instructions (a) to assess any permanent damages, and (b) that the measure of damages is the difference, if any, between the fair market value of the landlord’s property before the taking and the fair market value of the remainder after the taking. (Boomer v Atlantic Cement Co., 26 NY2d 219; Ferguson v Village of Hamburg, 212 NY 234; New York City v Pine, 185 US 93; Pappenheim v Metropolitan El. Ry. Co., 128 NY 436; Westphal v City of New York, 177 NY 140; American Bank Note Co. v New York El. R. R. Co., 129 NY 252; Sperb v Metropolitan El. Ry. Co., 137 NY 155; Herman v Manhattan Ry. Co., 58 App Div 369; Mott v Lewis, 52 App Div 558.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (John C. Brennan, Leonard Koerner and Alfred Weinstein of counsel), for City of New York, respondent.
    Section 828 of the Executive Law may be properly read to provide for compensation. (Matter of Coates, 9 NY2d 242; People v Finkelstein, 9 NY2d 342; Matter of Bell v Waterfront Comm. of N. Y., Harbor, 20 NY2d 54; United States v Jones, 109 US 513; Bauman v Ross, 167 US 548.)

      Robert Abrams, Attorney-General (Lawrence J. Logan and Peter H. Schiff of counsel), in his statutory capacity under section 71 of the Executive Law.
    The complaint should be dismissed with leave to plaintiff to pursue her administrative remedy before the State Commission on Cable Television.
   OPINION OF THE COURT

Meyer, J.

The Supreme Court in reversing our order of affirmance in this case (458 US__., 102 S Ct 3164, revg 53 NY2d 124) and remanding to us for further proceedings not inconsistent with its opinion did not question our holding that section 828 of the Executive Law was a proper exercise of the police power (458 US, at p_, 102 S Ct, at pp 3170-3171) but held that the “otherwise valid regulation so frustrates property rights that compensation must be paid” (id.; see, also, 458 US, at p __, 102 S Ct, at p 3179). It expressed no opinion, however, on the amount of compensation due, leaving that question for the courts of this State to determine on remand (458 US, at p_, 102 S Ct, at p 3179).

Before us on remand, plaintiff argues (1) that, her action being in trespass and defendant TelePrompter being without power to condemn, she is entitled to damages on a trespass theory; (2) that section 828 of the Executive Law does not authorize the commission it creates to adjudicate compensation or provide for compensation as to crossover installations; and (3) that the section is unconstitutional because it violates the separation of powers doctrine, and fails to provide for compensation or security in advance of taking, and violates due process in that notice is not given the owner and that the commission is biased. We conclude that the judgment entered by Special Term should be modified (1) to make clear that its declaration of the validity of section 828 is subject to the fixation of compensation by the commission upon application to it, (2) to declare the commission’s regulation 598.3 (9 NYCRR 598.3) invalid, and (3) to retain jurisdiction for the purpose of reviewing whether the compensation fixed by the commission constitutes just compensation within the meaning of the Constitution, but to permit plaintiff, if she be so advised, to proceed with her action in trespass for the period between February 28, 1972, the date on which she took title to 303 West 105th Street, and January 1, 1973, the effective date of section 828. Except as so modified, the judgment should be affirmed, with costs to plaintiff.

I

We held and the Supreme Court agreed that section 828 is a valid exercise of the police power. From the effective date of that section, therefore, TelePrompter’s “invasion” of plaintiff’s property was in pursuance of law and not a trespass (Brewster v Rogers Co., 169 NY 73, 80). As to the period between plaintiff’s acquisition of title and the effective date of the section there are, as outlined in our earlier opinion (53 NY2d, at pp 134-136), issues of fact. TelePrompter is, therefore, entitled to partial summary judgment making the declarations outlined above, but as to the period before December 31, 1972, permitting the action to proceed.

Plaintiff argues, however, that although TelePrompter Manhattan was formed under the Transportation Corporations Law it lost its power of condemnation under that law when it was merged into TelePrompter Corporation, a stock corporation, because neither the merger plan nor the certificate of incorporation of the surviving corporation stated that the power of condemnation was retained. We do not pause to consider whether the power to condemn is essential (see Boomer v Atlantic Cement Co., 26 NY2d 219) or whether, as defendants urge, section 906 (subd [b], par [1]) of the Business Corporation. Law and section 5 of the Transportation Corporations Law may be read to continue the condemnation power in the surviving stock corporation nonetheless (see Matter of City of New York [New York Water Serv. Corp.], 296 NY 1016, affg 271 App Div 1019, affg 67 NYS2d 850, 853; cf. Kittinger v Churchill, 161 Misc 3, 14, affd on opn below 249 App Div 703). Accepting the certified documents of which both sides urge that we take judicial notice (see People v Flack, 216 NY 123; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 168), we conclude that, the merger of TelePrompter Manhattan into TelePrompter Corporation not having occurred until almost two years after the present action was begun and TelePrompter Corporation having thereafter been merged into Group W Cable Inc., a corporation incorporated under the Transportation Corporations Law, the argument, whatever its merit during the hiatus, should not be permitted to frustrate the purpose of the Legislature (see Executive Law, § 811) in enacting section 828 (see Knoth v Manhattan Ry. Co., 187 NY 243, 252; Penthouse Props. v 1158 Fifth Ave., 256 App Div 685, 692; cf. Zion v Kurtz, 50 NY2d 92, 102).

For the period prior to enactment of section 828 plaintiff may maintain her action in trespass, therefore, but unless one of her remaining arguments is valid, she is entitled for the period after that date only to compensation as fixed by the commission.

II

We turn then to plaintiff’s statutory arguments and note, first, that the United States Supreme Court having held that the character of the governmental action involved in section 828 is a taking which entitles a. property owner affected by it to compensation, the section is to be construed so as to sustain its constitutionality in light of that holding if possible (People v Ferber, 52 NY2d 674, 678; Matter of Lorie C., 49 NY2d 161,171; People v Bell, 306 NY 110, 114; McKinney’s Cons Laws of NY, Book 1, Statutes, § 150, subd c). So much of our prior decision as reasoned that the Legislature intended to act under the police power only and not to require the payment of compensation having been invalidated by the Supreme Court’s holding, the question becomes whether the language of the statute admits of a construction which provides a method for the determination of compensation for crossover and noncrossover situations. We conclude that it does.

Section 828 (subd 1, par b) expressly empowers the commission to determine the reasonable amount to be paid by a cable television company to a property owner in exchange for permitting cable television service on his property; subdivision 3 of section 816 authorizes the commission to compel the production of papers, the attendance of witnesses and their examination under oath in order to obtain the information necessary to administer any provision of article 28 of the Executive Law; and subdivision 5 of the same section grants to the commission “all other powers necessary or appropriate to carry out the purposes” of the article. The commission is, therefore, empowered to fix reasonable compensation for a taking and provided with the procedural means for adjudication of that issue. The only seemingly contrary indication in the statute is the presence of the words “by regulation” in section 828 (subd 1, par b). However, those words when read in context are not inconsistent with the power of adjudication given the commission by section 816; what paragraph b of subdivision 1 does is authorize the commission to limit by regulation the highest amount a property owner may receive, unless on application by the property owner to the commission that body, after a section 816 hearing, fixes a higher sum as the reasonable compensation for the particular property. The commission’s regulations are entirely consistent with its being so empowered for they expressly provide (9 NYCRR 598.1-598.7) for just such an application and determination and establish rules as to pleadings, hearings and practice before the commission (9 NYCRR 590.3, 590.4, 590.6-590.10, 590.51-590.59) fully compatible with the usual process of adjudication.

For a number of reasons the exclusivity provision of the Eminent Domain Procedure Law (EDPL 101) does not, as plaintiff suggests, require a contrary conclusion. Foremost is that what we are. construing is an Executive Law provision specially enacted to deal with and promote the cable television industry, containing express provision for the determination of reasonable compensation in other than a condemnation context but which, because it has now been held to constitute a de facto taking, must be applied in that context. The procedure established in the Executive Law was established in light of the expertise of the cable television commission, the small amount of space occupied by cable facilities and the large number of individual properties that would be involved if the legislative purpose of “maximum penetration * * * as rapidly as * * * feasible” (Executive Law, § 811) was to be accomplished. It was enacted three and a half years before the Eminent Domain Procedure Law and was not mentioned in chapter 840 of the Laws of 1977 by which some 30 different laws were amended or repealed in order to conform their provisions to the EDPL. The EDPL being a general rather than a special law, section 828 procedures should not be held to have been superseded by its provisions, the more particularly so because to do so would require first instance court processing of a large number of small claims intended to be dealt with in the courts only by way of review of the commission’s determination (see People v Mann, 31 NY2d 253, 257-258; McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 396, 398).

Nor do crossover installations present a problem in construing the statute. The conclusion reached in our prior opinion was “that the Legislature intended to proscribe interference with access for installation of facilities on the property for whatever purpose without any provision for payment” (53 NY2d, at p 142; emphasis added). The Supreme Court has now held that the Constitution requires payment for both crossover and noncrossover facilities (458 US, at p _, 102 S Ct, at p 3178) and the procedural provisions of section 816 are clearly broad enough to encompass determination of compensation for either or both. Although the commission’s rules (9 NYCRR 598.1-598.7) do not as presently written expressly include crossovers, they must, as a result of the Supreme Court’s holding, be construed impliedly to include them and, we have no doubt, will be promptly amended to conform to that holding.

Ill

There remain for consideration the alleged constitutional flaws.

A

Plaintiff’s separation of powers arguments do not withstand analysis. Neither the Federal nor the State Constitution proscribes determination of compensation for a taking by a commission rather than a court. Thus in Bauman v Ross (167 US 548, 593) the Supreme Court approved of commissioners “appointed by a court or by the executive” and former subdivision (b) of section 7 of article I of the New York Constitution, which was repealed in 1964 as “obsolete and superfluous” (McKinney’s Cons Laws of NY, Book 2, NY Const, Art I, § 7, Historical Note), authorized determination of compensation by commissioners. Plaintiff’s emphasis on our reference in Matter of Keystone Assoc. v Moerdler (19 NY2d 78, 89) to the determination of compensation as a judicial function is misplaced. What was there held, as the citation of Matter of City of New York (Fifth Ave. Coach Lines) (18 NY2d 212, 218) shows, was that the Legislature may not itself fix compensation, not that it may not authorize the first instance determination of compensation by commissioners or a commission, subject to later judicial review.

Nothing in article VI of the New York Constitution requires a contrary conclusion. United Baking Co. v Bakery & Confectionery Workers’ Union (257 App Div 501), on which plaintiff relies, is distinguishable, for there the agency’s findings would not have been subject to review (id., at p 506), whereas under section 828 the commission’s determination is subject to review, in the instant case, in this proceeding and, in cases not similarly arising, by article 78 review. Nor does subdivision b of section 7 of article VI of the Constitution require, as plaintiff suggests, that the Supreme Court have “concurrent jurisdiction along with any other court or agency” (emphasis supplied). The subdivision makes no reference whatsoever to agencies as distinct from courts and plaintiff points to nothing else to suggest that administrative agencies cannot be given a first instance adjudicatory function, subject to judicial review.

B

Although advance payment or the provision of security for payment of compensation is the general rule when property is taken for a private use, neither is an absolute in the law of just compensation (Brickett v Haverhill Aqueduct Co., 142 Mass 394; see Cherokee Nation v Kansas Ry. Co., 135 US 641; Matter of American Tel. & Tel. Co. of N. J., 128 NJ Super 238). The Constitution does not require that the statutory aim of “rapid development of the cable television industry” (Executive Law, § 811; see, also, § 815, subd [2], par [d], cl [iii]) be frustrated under the circumstances of this case, where TelePrompter has proceeded in good faith under a statutory license not conditioned upon the advance payment of or security for compensation but which must now, as a result of the Supreme Court’s ruling, be construed to require adequate compensation. The critical inquiry is whether the due process requirement of just compensation has been met. Where, as here, so far as the record discloses (1) the amount receivable by any single property oWner is small, (2) the damage to such an owner’s property by attachment of cable facilities relatively insignificant, (3) TelePrompter has offered in light of the Supreme Court’s ruling to post a bond, and (4) the powers of the commission are broad enough to encompass a requirement by rule or order or both of advance payment or security as deemed necessary to assure the adequacy of compensation as to both amount and certainty of payment and Special Term on remand to it will have similar power, there is reasonable certainty that plaintiff and the members of the class as finally determined will receive just compensation for the takings that have resulted from TelePrompter’s various entries pursuant to statutory leave. It would, of course, had the statutory scheme been envisioned by the Legislature as a taking, have been better had the statute included explicit provisions dealing with the problem. Under the circumstances of this case, however, it would be an exaltation of form over substance to invalidate the statutory license, authorized as the Supreme Court has held by the police power, on such a basis.

C

The due process objection predicated on commission bias is sufficiently answered by Withrow v Larkin (421 US 35, 56-58) and Richardson v Perales (402 US 389, 410) and need not be discussed further, Equally unavailing is the suggestion of constitutional impropriety claimed to result from the assessment provisions of section 817 of the Executive Law (People ex rel. New York Elec. Lines Co. v Squire, 107 NY 593, 602, affd 145 US 175; see, also, Matter of Kings County Light. Co. v Maltbie, 244 App Div 475). Notably, unlike Ward v Village of Monroeville (409 US 57), there is here no such direct relationship between the commission’s finances and its determination of compensation to be paid by CATV companies to property owners as to constitute a denial of due process.

Plaintiff’s remaining due process arguments relate to the fact that notice is not required, to be given and that the commission’s regulations (9 NYCRR 598.3) require that an owner’s application be made within 60 days after October 30,1973 or the date of installation, whichever is later. The notice problem is not properly before us (see Telaro v Telaro, 25 NY2d 433, 439; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], p 641), but in any event appears from the stipulated facts no longer to present a problem. The limitation upon presentation of a claim, framed in the context of a police power rather than a condemnation statute, could be construed by the commission to bar claims as to which an owner did not in fact have notice in time to comply with the regulation. Nothing in the statute required the adoption of such a regulation, however, or prevents the commission from adopting a new regulation relating the limitation period to the service of notice upon a property owner. Such problem as the present regulation creates will be sufficiently taken care of by modifying the judgment to declare the regulation invalid but does not require invalidation of the underlying statute.

For the reasons set forth above the order of the Appellate Division should be modified, with costs to appellant, and the case remitted to Supreme Court, New York County, for further proceedings in accordance with this opinion and, as so modified, affirmed.

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

Upon reargument, following remand by the Supreme Court of the United States, order modified, with costs to appellant, and case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      . Relevant facts are set forth in our earlier opinion and will not be repeated here, familiarity with that opinion being assumed.

      . She also asks that we fix the rule of damages and pass upon various procedural questions denied by Special Term as moot. Concluding as we do that compensation is to be fixed by the commission subject to review, we do not reach the damage issue. As to the procedural issues, our order is without prejudice to the re-presentation by either party to Special Term of any appropriate issue, including any previously dismissed as moot.

      . Although as noted in footnote 2 we do not now determine the measure of damages, that being for the commission in the first instance, we note, in light of the Supreme Court’s ruling, that reasonable compensation, does not differ from just compensation, which as a constitutional concept requires the fixing of compensation as of the time of the taking (in plaintiff’s case, January 1, 1973, the effective date of section 828) plus interest at the legal rate as it existed during the period between that date and the payment.made as a result of the commission determination (City of Buffalo v Clement Co., 28 NY2d 241, 254, 266; see San Diego Gas & Elec. Co. v San Diego, 450 US 621, 656-659 [Brennan, J., dissenting, but note that three other Justices joined in the dissent and that Justice Rbhnquist, while concurring in the majority’s dismissal on jurisdictional grounds, announced his acceptance of the principles stated in the Brennan dissent]).

      . As to the instant action, a further reason that EDPL does not apply is section 706 of that law, which expressly provides that an action pending on the effective date of the chapter “may be prosecuted as if this chapter had not been enacted.” The present action was begun two and a half years before the effective date of EDPL. We prefer, however, to base our conclusion upon the reasoning set forth in the text.


author: Meyer, J. Jones, J.

text:
    The People of the State of New York, Respondent, v David Felix, Appellant.
    Argued January 3, 1983;
    decided February 15, 1983

      POINTS OF COUNSEL

      Michele Maxian, Caesar D. Cirigliano, Barbara Salken and Bennett M. Lincoff for appellant.
    I. The requirement of subdivision 5 of section 70.02 of the Penal Law that defendant be subject to an enhanced sentence on the basis of an unproven allegation in the indictment unless he can prove mitigating circumstances is fundamentally unfair and, therefore, a violation of due process, not equal protection. (People v Drummond, 40 NY2d 990, cert den sub nom. New York v Luis J., 431 US 908; People v Elliby, 80 AD2d 875; People v Drayton, 39 NY2d 580; United States v Craven, 478 F2d 1329, 414 US 866,1086; United States v Thoresen, 428 F2d 654; People v Griffin, 7 NY2d 511.) II. Appellant has properly preserved his challenge to subdivision 5 of section 70.02 of the Penal Law in its entirety. Moreover, the procedural provisions of paragraph (c) fail to provide necessary due process protections and cannot, therefore, shelter paragraphs (a) and (b) from attack. (Specht v Patterson, 386 US 605; Griffin v New York, 7 NY2d 511; United States ex rel. Gerchman v Maroney, 355 F2d 302; Brady v Maryland, 373 US 83.)

      Robert M. Morgenthau, District Attorney (Donna Krone, Amyjane Rettew and Vivian Berger of counsel), for respondent.
    The Legislature’s limitation on the imposition of definite or nonincarcerative sentences on persons who are initially charged with an armed felony but are permitted to “plead down” to a lesser crime, is a rational restriction on plea bargaining. Moreover, the specific statutory procedures for seeking a more lenient sentence did not deny him due process of law. (People v Farrar, 52 NY2d 302; People v Pagnotta, 25 NY2d 333; Matter of Van Berkel v Power, 16 NY2d 37; Weems v United States, 217 US 349; People v Esajerre, 35 NY2d 463; People v Elliby, 80 AD2d 875; People v Bartley, 60 AD2d 283; Santobello v New York, 404 US 257; People v Eason, 40 NY2d 297; People v Broadie, 37 NY2d 100, 423 US 950; People v McKay, 21 AD2d 142; United States v Di Francesco, 449 US 117; Bordenkircher v Hayes, 434 US 357, 435 US 918; People v Selikoff, 35 NY2d 227.)
   OPINION OF THE COURT

Meyer, J.

There is no due process infirmity under either the Federal or the State Constitution in the requirement of subdivision 5 of section 70.02 of the Penal Law that a defendant who has been charged with an armed felony and permitted in satisfaction of the indictment to plead guilty to a class D violent felony must receive an indeterminate sentence of one to three years unless the court finds that factors specified in the section warrant imposition of less than an indeterminate sentence. The order of the Appellate Division affirming the judgment of conviction of defendant should, therefore, be affirmed.

I

While allegedly displaying both a knife and what appeared to be a pistol, defendant stole a “Grateful Dead” button from another passenger on a subway train. Indicted for robbery in the first degree (using or threatening the immediate use of a dangerous instrument [the knife]), robbery in the second degree (displaying what appeared to be a pistol), attempted robbery in the first degree and two counts of criminal possession of a weapon in the fourth degree, defendant pleaded guilty to “attempted robbery in the second degree, as a violent felony under an indictment charging you with an armed violent felony; the plea to be in full satisfaction of the indictment and the plea being under the first count of the indictment”. As part of the pleá colloquy the Trial Judge explained to defendant “that a class D felony under this indictment which charges an armed violent felony in the second count, even though your plea is to a simple violent felony as a class D, attempt [sic] robbery in the second degree, would require the Court to impose as a minimum sentence no less than one, no more than three years in state prison as a minimum sentence” but stated that defendant’s attorney could make and the court would consider “an application for a lesser sentence due to mitigating circumstances”. Defendant admitted as part of the plea that he used or threatened immediate use of a knife, but was not questioned with respect to the display of what appeared to be a pistol and, therefore, did not directly admit the commission of an armed felony as that term is defined in CPL 1.20 (subd 41).

By memorandum and again at the time of sentence, defendant sought a reduced sentence on the basis of mitigating circumstances. His application was denied on the ground that the circumstances did not, as required by section 70.02 (subd 5, par [b]) of the Penal Law, bear upon the manner in which the crime was committed. He also argued that the provisions of that subdivision violate the due process clauses of the Federal (US Const, 14th Amdt) and State (NY Const, art I, § 6) Constitutions.

The Trial Judge held the subdivision constitutional and imposed the one- to three-year sentence required by section 70.00 of the Penal Law. Distinguishing our decision in People v Drummond (40 NY2d 990, cert den sub nom. New York v Luis J., 431 US 908) on the ground that the statute there in question made an indicted youth automatically ineligible for youthful offender treatment based upon the highest count of the indictment, he noted that the three exceptions contained in section 70.02 (subd 5, par [b]) of the Penal Law “allow the Court much of its usual sentencing discretion regardless of the top count of the Indictment” and that the statute only limited the Judge’s sentencing discretion by establishing guidelines and conditions for its exercise.

On appeal a sharply divided Appellate Division affirmed (87 AD2d 529). Two Judges held that the constitutional issue need not be reached because they concluded that if the sentencing scheme of the statute were unconstitutional and they exercised sentencing discretion unfettered by the guidelines and conditions of the statute they would find the indeterminate three-year term appropriate. A third Judge, concurring for affirmance, reached the constitutional issue and concluded that subdivision 5 represented a rational legislative attempt to encourage bargained for pleas of guilty to lesser offenses while discouraging overly lenient sentences for persons charged in an indictment with an armed felony. The two dissenting Judges held the subdivision unconstitutional “because it requires that a defendant be subjected to enhanced punishment on the basis of an unproven charge, without requiring the People to make any additional showing, thus impermissibly placing upon the defendant the burden of extricating himself from the enhanced sentence” (87 AD2d, at p 540). The matter is before us by leave of one of the dissenting Judges at the Appellate Division (56 NY2d 656). We conclude that the due process issue must be met and that the statute is constitutional.

II

It is hornbook law that a court will not pass upon a constitutional question if the case can be disposed of in any other way (Matter of Peters v New York City Housing Auth., 307 NY 519, 527-528; McKinney’s Cons Laws of NY, Book 1, Statutes, § 150; 20 NY Jur 2d, Constitutional Law, § 47). Thus, had the Appellate Division been able to find in the record evidence of mitigating circumstances of the type provided for in the statute, it could have and should have avoided deciding the due process issue.

Here, however, the plurality for affirmance at the Appellate Division while seeking to avoid the constitutional question did not in fact do so. Rather it ignored the facts that sentencing is a function of the Trial Judge (see CPL 380.20; People v Green, 75 AD2d 502; People v Gomez, 103 Misc 2d 352) and that subdivision 5 of section 70.02 of the Penal Law restricts the discretion in relation to plea negotiation exercised by a Trial Judge, and sustained the sentence imposed as a proper exercise of the discretion vested in the Judges of the Appellate Division. In doing so it has avoided the effect of holding the statute unconstitutional (i.e., reversal) but assumed that the Trial Judge would not, had he been free to weigh all the factors that bear on sentencing, have imposed a lesser sentence, or that if he had, the Appellate Division would have been free to increase, and would have increased, the sentence to that which it was upholding by the exercise of independent discretion. Those assumptions are, however, unfounded (as to sentencing at the appellate level, see Gardner v Florida, 430 US 349, 354, n 5; and People v Green, supra; as to the impropriety of an increased sentence, see CPL 450.30, subd 2). Consequently, the constitutional issue cannot be avoided.

III

Enacted at an extraordinary session of the Legislature as a “key” part of a program intended to combat violent crime, section 70.02 of the Penal Law was intended to establish greater responsibility for an armed violent felony through stiffer sentencing provisions and restrictions upon plea bargaining (see Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 70.02,1982-1983 Cum Ann Pocket Part, pp 132-133; Book 11A, CPL 100.15, p 25). The Legislature did not choose to abolish plea bargaining as it could have (People v Esajerre, 35 NY2d 463, 467; see Santobello v New York, 404 US 257, 262). Rather it opted to limit the broad discretion previously exercised in the determination of the crime to be pleaded to and the sentence to be imposed. This it did by (1) proscribing acceptance of a plea to less than a class D violent felony offense from a defendant indicted for a class B or C violent felony offense (CPL 220.10, subd 5, par [d]), and (2) requiring imposition of an indeterminate sentence on the bargained class D violent felony offense, absent specified ameliorating factors (Penal Law, § 70.02, subd 5), when a defendant has been indicted for an “armed felony” as defined in CPL 1.20 (subd 41) (a violent felony offense aggravated by use of a loaded and functional firearm or display of what appears to be a firearm of a specified type). It is the latter provision which defendant argues violates his right to due process by (1) prescribing the sentence to be imposed upon the basis of an unproved and unadmitted fact and (2) shifting to him the burden of establishing the right to a lesser sentence. We disagree.

A

Defendant’s claim that the statute improperly subjects him to enhanced punishment on the basis of the unproven charge that he was “armed” within the meaning of the “armed felony” definition is largely predicated on People v Drummond (40 NY2d 990, supra) and People v Griffin (7 NY2d 511). There are, of course, differences in the sentencing discretion available when a defendant has pleaded guilty to a class D violent felony under an indictment charging an armed felony and what would be available had there been no armed felony charge in the indictment under which he pleaded; not only is there a minimum prescribed sentence but also the mitigating circumstances that may be considered relate only to the manner in which the crime was committed and do not include circumstances relating to defendant’s past history and family situation, circumstances which may be considered by a Judge sentencing a defendant who pleaded under an indictment not charging an armed felony. Neither Drummond nor Griffin goes so far, however, as to hold, as defendant argues, that reliance to any extent on the indictment (as distinct from the facts admitted during the plea colloquy) to determine the minimum permissible sentence violates due process.

The infirmity of the statute Involved in Drummond (CPL 720.10 ff) which conditioned youthful offender treatment on the highest count of the indictment but contained no ameliorative provision was, as the memorandum establishes, that its “limitations make the privileged penal sanction to be imposed depend solely upon an accusation, however formal, rather than an adjudication, however informal, in the adversarial criminal process” (40 NY2d, at p 992; emphasis supplied). Here there is no such automatic prescription, for the subdivision in question vests the sentencing Judge with discretion to impose a lesser sentence when one of its ameliorative factors is found to be present and defendant was made aware prior to the acceptance of his plea in satisfaction of the indictment of both the minimum prescribed sentence that would result and the possibility of a lesser sentence if the court found one of the ameliorative factors to exist. Adjudication, though with something less than trial formality, thus has an important role; sentence does not depend solely on accusation.

People v Griffin (7 NY2d 511, supra) is no more helpful to defendant, for the statute there involved (Penal Law of 1909, § 1944) made no provision for the postplea presentence inquiry concerning whether Griffin was armed, which the sentencing Judge took it upon himself to conduct as a basis for imposing a sentence heavier than could have been imposed for the unarmed crime to which Griffin had pleaded. Here, as already noted, defendant was advised prior to acceptance of his plea of the effect of the indictment’s “armed felony” allegation and the subdivision contains detailed provisions concerning the hearing available as a possible means of defendant’s obtaining a sentence less than that otherwise prescribed by its provisions.

Although an indictment may not be given preclusive effect as to an unadmitted charge (see People c Elliby, 80 AD2d 875), it “can give rise to ancillary consequences beyond the formal notification and delineation of the charges” (People v Brian R., 78 Misc 2d 616, 618, affd 47 AD2d 599). Thus, the offenses charged in dismissed counts of an indictment may be considered by the sentencing Judge even over defendant’s objection (Billiteri v United States Bd. of Parole, 541 F2d 938, 944; see United States v Needles, 472 F2d 652; Schulhofer, Due Process of Sentencing, 128 U of Pa L Rev 733, 763; Ann., 96 ALR2d 768, 787).

Considered in relation to the broad power of the Legislature with respect to sentencing, the purpose sought to be accomplished by the subdivision in question and the fact that it does not give preclusive effect to the indictment’s allegation that defendant was armed, we conclude that the subdivision’s prescription of the minimum sentence to be imposed absent a finding of an ameliorating factor does not violate the due process clause of either the Federal or the State Constitution (see People v Caver, 74 AD2d 852)..

B

No more violative of due process are the procedural provisions of paragraph (c) with respect to the hearing to be held. Defendant was accorded no hearing because the mitigating circumstances set forth in the memorandum submitted on his behalf concerned his prior history rather than the manner in which the crime was committed. He argues, nevertheless, that paragraph (c) improperly places upon him the burden of proving one or more of the ameliorating factors referred to in paragraph (b). Although the paragraph speaks only of “an opportunity to present relevant information to assist the court in making, a determination pursuant to paragraph (b)” and accords that opportunity to both the defendant and the District Attorney, its practical effect is to impose upon a defendant who seeks a determinate sentence an obligation to present evidence he would not otherwise be required to present. In doing so it does not, however, impinge upon due process.

Due process protections apply to sentencing as well as to the trial itself (Gardner v Florida, 430 US 349, 358, supra), but the “due process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure” (Williams v New York, 337 US 241, 251, reh den 337 US 961, 338 US 841) and does not “implicate the entire panoply of criminal trial procedural rights” (Gardner v Florida, 430 US, at p 358, n 9). Defendant points to Specht v Patterson (386 US 605), however, and argues that here, as in Specht, the existence of one of the ameliorating factors requires the making of new factual findings on an issue distinct from that encompassed by the guilt determination. We think Specht readily distinguishable.

Specht involved a defendant convicted under a Colorado indecent liberties statute under which the maximum sentence that could be imposed was 10 years. The trial court, without holding a hearing, used that conviction as a basis for sentencing Specht under the Sex Offenders Act, a separate statute, the maximum under that act being life imprisonment. The Supreme Court held that due process required that defendant have the right to be present with counsel, to confront and cross-examine witnesses and to present evidence on his own behalf before the court could, on the basis of a new factual finding on the “distinct” issue which the Sex Offenders Act involved, impose a sentence heavier than that permitted for the crime of which he stood convicted (386 US, at p 610; see Schulhofer, op. cit., p 762), a holding essentially similar to that of this court in People v Griffin (7 NY2d 511, supra).

Subdivision 5 of section 70.02 of the Penal Law involves no new criminal charge, no separate statute, no new finding of fact on a distinct issue as the basis for increased punishment. What it does rather is require as part of one statutory scheme that a defendant indicted for an armed felony but permitted to plead to a lesser offense be sentenced to an indeterminate term, while permitting imposition of a lesser sentence if after a hearing the sentencing Judge finds the existence of one of the ameliorating factors it specifies. By pleading to the class D violent felony with the knowledge that because the indictment charges an armed felony the sentence on the class D felony will be indeterminate, the defendant in effect admits, for the purpose of sentence and subject to his right to a lesser sentence if the existence of one of the ameliorating factors be found by the court, that he was armed as charged in the indictment. He is, moreover, accorded the right to deny or explain which due process requires (Gardner v Florida, 430 US, atpp 356,362; see People v Daniels, 58 AD2d 585, 586). Furthermore, the new facts found in the postplea presentence hearing can only reduce, not enhance, the punishment imposed. Thus, Specht does not require invalidation of subdivision 5 of section 70.02 of the Penal Law on Federal due process grounds and we perceive no reason for applying the due process clause of the New York Constitution differently.

Finally, we note that due process is not offended by the probability that in most, though not necessarily in all, cases establishment of an ameliorative factor will require that defendant come forward with proof. In People v Laietta (30 NY2d 68, 75, cert den 407 US 923) we noted, in upholding a statute (Penal Law, § 25.00, subd 2) imposing upon defendant the burden of establishing the defense of entrapment, that “presumptions, burdens of going forward, and burdens of persuasion in criminal cases may be placed on defendants” provided the State has “first proved enough of its case” and that there “be justifying reason to shift the burden either because knowledge of the facts is peculiar to the defendant or the onus is based on probabilities of wrongdoing.” Here the People’s case has been sufficiently made by defendant’s plea entered under this statute for by so doing he impliedly concedes being armed, as part of his plea bargain and subject to his right to present “relevant information” concerning “possible deficiencies in proof of [his] commission of an armed felony” or other specified circumstances bearing on commission of the crime to which he has pleaded (Penal Law, § 70.02, subd 5, pars [b], [c]). In many cases, moreover, knowledge of the facts necessary to establish a basis for a lesser sentence will be peculiar to defendant, and in every case, by the Grand Jury’s return of an armed felony indictment which must be based upon reasonable cause (CPL 190.65), the probability of wrongdoing is sufficiently present to justify such burden shifting as the subdivision involves.

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

Jones, J.

(dissenting). I share the conviction of the dissenting Justices at the Appellate Division that subdivision 5 of section 70.02 of the Penal Law is unconstitutional under both Federal and New York State Constitutions as working a denial of due process. In my view constitutionally guaranteed due process is denied when the scheme of sentencing is to any significant extent made to turn on a charge set forth in the accusatory instrument but which has been neither proved by the People nor admitted by the defendant.

This was, I had thought, the teaching of People v Drummond (40 NY2d 990). Under the statute held unconstitutional in that case, the unproved and unadmitted higher charge was the sole factor leading to preclusion of consideration of youthful offender treatment but it was not the sole factor determinative of the defendant’s ultimate sentence. By parallel analysis, the fact that the indictment in this case charged defendant with an armed felony was the sole factor which exposed him to the sentencing structure of subdivision 5 of section 70.02 but was not determinative of the precise sentence he would receive. I find nothing in Drummond, either in the opinion in our court or in the dissenting opinion at the Appellate Division, to suggest that the rationale for the court’s determination of unconstitutionality turned on whether the alternative frame of sentencing made applicable by the charge in the indictment was rigid (as in Drummond — exclusion from consideration for youthful offender treatment) or flexible (as in the present case — an indeterminate sentence in the absence of a finding of one of the factors set out in paragraph [b] of subdivision 5). The critical factor to the holding of unconstitutionality in Drummond was that the alternative sentencing category applicable to the defendant was determined by only an allegation of conduct which had not been proved or admitted. “By according a decisive role in the determination of which youths are eligible for youthful offender treatment to nothing more substantial than a written statement of unproven allegations (see CPL 1.20, subd 3), the statute offends reasonable notions of fairness. There is no reasonable justification or necessity for fixing the degree of the crime charged as the determinative factor. It is clear that an indictment does not survive a trial and verdict; it should play no part in determining the type of postconviction treatment” (People v Drummond, 51 AD2d 1, 15). I perceive no principled ground on which our decision in Drummond can be distinguished.

Additionally, and in any event, to construe defendant’s plea of guilty to the class D violent felony as an implied admission that he was armed as charged in the first count of the indictment to which he did not plead guilty (as does the majority, pp 166, 167) is to rely on what would be a wholly fictitious construct. If anything is unmistakably clear, it is that by pleading guilty to the lesser count in full satisfaction of the entire indictment, defendant was not required to admit the elements of the armed felony charged in the first count (or of the offenses charged in any of the other counts to which he did not plead), and of course the criminal transaction charged in the armed felony count has never been proved by the People. Is it to be taken that wherever a defendant pleads guilty to one count in satisfaction of an indictment charging an armed felony that he will be deemed to have admitted that he was armed?

Chief Judge Cooke and Judges Jasen, Wachtler, Fuchsberg and Simons concur with Judge Meyer; Judge Jones dissents and votes to reverse in a separate opinion..

Order affirmed.

      . The subdivision provides:
      “(a) Except as provided in paragraph (b) of this section, where a plea of guilty to a class D violent felony offense is entered pursuant to section 220.10 or 220.30 of the criminal procedure law in satisfaction of an indictment charging the defendant with an armed felony, as defined in subdivision forty-one of section 1.20 of the criminal procedure law, the court must impose an indeterminate sentence of imprisonment pursuant to section 70.00.
      “(b) In any case in which the provisions of paragraph (a) hereof or the provisions of subparagraph (ii) of paragraph (c) of subdivision two of this section apply, the court may impose a sentence other than an indeterminate sentence of imprisonment, or a definite sentence of imprisonment for a period of no less than one year, if it finds that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crimé was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution; or (iii) possible deficiencies in proof of the defendant’s commission of an armed felony.
      “(c) The defendant and the district attorney shall have an opportunity to present relevant information to assist the court in making a determination pursuant to paragraph (b) hereof, and the court may, in its discretion, conduct a hearing with respect to any issue bearing upon such determination. If the court determines that an indeterminate sentence of imprisonment should not be imposed pursuant to the provisions of such paragraph (b), it shall make a statement on the record of the facts and circumstances upon which such determination is based. A transcript of the court’s statement, which shall set forth the recommendation of the district attorney, shall be forwarded to the state division of criminal justice services along with a copy of the accusatory instrument.”

      . Defendant’s reply brief in this court makes clear that his “challenge is not based on equal protection.”

      . The constitutionality of that provision is not before us, but has been upheld by the Appellate Division, Second Department, in People v Elliby (80 AD2d 875, mot for lv to app den 53 NY2d 942).

      . The People, relying on People v Thomas (50 NY2d 467) and People v Patterson (39 NY2d 288, affd sub nom. Patterson v New York, 432 US 197), suggest that defendant’s burden of proof argument, not having been presented to the trial court, was not preserved. Although defendant’s memorandum to the trial court was not as explicit as is his present burden of proof argument, his trial court attack was upon the entire subdivision and its use of an unproven fact. Unlike Thomas and Patterson, which involved a burden shifting charge to which specific exception was required, the argument here made to the trial court sufficiently suggested that the burden was on the People to prove that defendant was armed, rather than on defendant to prove that he was not, before he could be deprived of the broader sentencing discretion otherwise available.

      . The Gardner opinion expressly adhered to the prior Williams holding (430 US, at p 356) but was joined in only by Justices Stevens, Stewart and Powell. The Chief Justice and Justices Brennan, White and Blackmun concurred in the judgment, Justice Brennan only in part because he viewed the death penalty as unconstitutional. Justice Marshall and Justice Rehnquist, dissenting, considered only the latter point and not the due process issue. The language above quoted from Williams and Gardner appears, therefore, still to be the view of a majority of the court (see United States v Grayson, 438 US 41).

      . Compare United States v Stewart (531 F2d 326, 332, cert den 426 US 922; see Ann., 41 ALR Fed 576) holding that the Federal dangerous special offender statute (US Code, tit 18, § 3575), which permits imposition of an increased sentence after a finding on the basis of a preponderance of the evidence, that defendant is such an offender, does not involve a new criminal charge.

      . That the Legislature has imposed upon the People the burden of proving beyond a reasonable doubt the commission of prior crimes under statutes requiring enhanced punishment for recidivists (CPL 400.15, subd 7, par [a]; 400.20, subd 5; 400.21, subd 7, par [a]) does not mandate establishment of like procedure under subdivision 5 of section 70.02 of the Penal Law.


author: Jones, J.

text:
    In the Matter of Mark Voelckers, Respondent, v Frank Guelli, as Supervisor of the Town of Walworth, et al., Appellants.
    Argued January 5, 1983;
    decided February 15, 1983

      POINTS OF COUNSEL

      Lawrence M. Mooney and Paul T. Rubery for appellants.
    I. Legislative actions of a town board are not reviewable by the court. (Church v Town of Islip, 8 NY2d 254; Matter of Paliotto v Cohalan, 8 NY2d 1065.) II. The judgment of the Supreme Court exceeded the authority of the court in mandating a legislative act. (Bliek v Town of Webster, 104 Misc 2d 852.) III. The report of the Wayne County Planning Board was not a failure to act within the meaning of section 239-m of the General Municipal Law. (Bloom v Town Bd. of Town of Yorktown, 102 Misc 2d 938.)

      John B. Nesbitt for respondent.
    I. The action of the supervisor in declaring the motion to rezone defeated is subject to judicial review and is not legislative in nature. (Matter of Town of Smithtown v Howell, 31 NY2d 365; Bliek v Town of Webster, 104 Misc 2d 852.) II. Special Term, as affirmed by the court below, correctly held that the correspondence from the county employee did not trigger the “super-majority” requirement because: (a) it did not address the question of rezoning, but merely communicated disapproval of a proposed site plan, and (b) the correspondence did not set forth any reasons for its recommendations as required by section 239-m of the General Municipal Law. (Matter of Town of Smithtown v Howell, 31 NY2d 365; Bloom v Town Bd. of Town of Yorktown, 102 Misc 2d 938; Matter of Allen v Adami, 39 NY2d 275; Sfouggatakis v Suffolk County Planning Comm., 48 AD2d 885; Farwood Holding Corp. v Town Clerk of Town of Huntington, 47 AD2d 765; Matter of Leisure Time Sales v Waring, 91 Misc 2d 633.)
   OPINION OF THE COURT

Jones, J.

Both the recommendations of the regional planning board with respect to a proposed change of zoning and the statement of the reasons therefor prescribed by section 239-m of the General Municipal Law must be transmitted to the referring municipal agency in written form.

In this article 78 proceeding brought to annul a ruling of the individual respondent as presiding officer of the Town Board of the Town of Walworth, Wayne County, that a resolution to rezone an area had failed of passage and for a declaration that on the contrary, the resolution had been adopted, the individual respondent and the town appeal by our permission from an order of the Appellate Division affirming a Supreme Court judgment which granted the relief requested.

Petitioner, contract vendee of a 52-acre tract on Penfield Road in the Town of Walworth, on which he desired to operate an automobile salvage business, applied to the town board on March 5, 1981 for a change of zone of the subject premises from R-l (residential) to 1-1 (industrial). In accordance with section 239-m of the General Municipal Law, under which the town board was required to refer the rezoning proposal to the county planning agency, on March 9, 1981 petitioner’s application was forwarded to the Wayne County Planning Board. The statute provides that: “Within thirty days after receipt of a full statement of such referred matter, the county, metropolitan or regional planning agency to which referral is made, or an authorized agent of said agency, shall report its recommendations thereon to the referring municipal agency, accompanied by a full statement of the reasons for such recommendations. If such planning agency fails to report within such period of thirty days or such longer period as may have been agreed upon by it and the referring agency, the municipal body having jurisdiction to act may do so without such report. If such planning agency disapproves the proposal, or recommends modification thereof, the municipal agency having jurisdiction shall not act contrary to such disapproval or recommendation except by a vote of a majority plus one of all the members thereof and after the adoption of a resolution fully setting forth the reasons for such contrary action.”

Acting within the prescribed 30-day period, on March 26, 1981 the county planning board, by its senior planner, L. Paul Wilson, sent a letter to the town which stated only:

“The Planning Board has reviewed Mr. Voelckers’ application to install an automobile junk yard on Penfield Road. The Board recommends the rejection of this proposal.'

“If the Town chooses to rezone this parcel, however, it should be noted that site plan review is still reserved for the Town Planning Board and final review is reserved for the Town Board by 30.51 (M)(l) of the Town of Walworth Municipal Code.”

On April 16,1981 the town board considered petitioner’s application. Following a public hearing and after a resolution that the application be rejected had been defeated by a vote of three opposed to the resolution with two in favor of its adoption (the full board consisting of five members), a second resolution, that the application be approved, received a consistent vote of three in favor and two opposed. The individual respondent as town supervisor presiding at the meeting declared the second resolution defeated, ruling that under section 30.91 of the town’s zoning law a vote of a majority of the board plus one was required for passage. The section of the local law referred to was substantially a restatement of the portion of section 239-m of the General Municipal Law set out above. The present proceeding was instituted to annul this ruling of the supervisor. The petition sought a judgment setting the ruling aside and a declaration that the resolution in favor of rezoning had been adopted, together with such other further and different relief as might be just and proper. Petitioner argues that the letter written by the county planning board on March 26, 1981 was not a disapproval activating the prescription contained in section 239-m of the General Municipal Law and in subdivision F of section 30.91 of the local law that no action contrary to the recommendation of the county planning board could be taken except by a vote of a majority of the town board plus one (here, four votes), because the recommendation contained in the letter was not “accompanied by a full statement of the reasons”, as required by the cited statutory provisions. In response, the supervisor and the town rely on a showing that on March 30, four days subsequent to the letter and prior to the public hearing and meeting of the town board, its writer, Wilson, orally disclosed the reasons for the planning agency’s disapproving action in a telephone conversation with respondent town supervisor.

Supreme Court rejected that reliance, concluding that strict compliance with the statutory requirement of a statement of reasons accompanying a recommendation of disapproval by the planning board was necessary. It held that, without such an accompanying statement, there had been no effective disapproval and consequently no action on the rezoning proposal by the planning agency. As a result of the planning board’s failure to have acted on the proposal within the prescribed 30-day period, the town board was authorized to approve the zoning change by a simple majority vote of that body (here, three votes) (Town Law, § 63), rather than the majority plus one that would have been necessary had there been an effective disapproval by the planning agency. The judgment entered at Special Term declared that the April 16,1981 resolution of the town board favoring rezoning of the subject parcel was deemed passed and directed that the supervisor and town board proceed to rezone the premises based on the majority vote. The Appellate Division unanimously affirmed the action of the lower court, without opinion; we now affirm the appellate court’s order. Our reasoning differs from that of Supreme Court.

The language employed in section 239-m of the General Municipal Law leaves no room for doubt that the statement of reasons for any recommendation by a county planning board must be made contemporaneously with the report of the agency’s recommendation. Thus, the statute provides that the report to the referring municipal agency shall be “accompanied by a full statement of the reasons for such recommendations”.

The statute is not so clear, however, as to whether the report and the accompanying statement of reasons must be in writing. In this instance the summary report of the planning board’s recommendation of disapproval was written; the statement of reasons was not. In our view of the statute, section 239-m contemplates that both the report and the accompanying statement of the planning agency shall be transmitted to the referring municipal agency in written form. The function of the statement of reasons, perhaps even to a greater extent than the ultimate recommendation, is to assure both that the members of the referring body may be informed and aided in their determination of appropriate action to be taken with respect to the zoning proposal and that the residents of the municipality, too, may have the benefit of the deliberations and conclusion of the regional planning agency in their formulation and expression of community sentiment and comment. Both of these objectives are best served if the views of the planning body are communicated in written form, thereby avoiding the pitfalls of oral relation in the customary informality of the conduct of local affairs.

In the Town of Walworth, when subdivision F of section 30.91 of the town Municipal Code was adopted, it appears to have been expected that the report of the county planning board and the accompanying full statement of reasons would be in written form. That subdivision of the local code contains the explicit provision that the town supervisor “shall read” the report of the planning agency at the public hearing on the matter under review (supra, n 1).

In addition to asserting on the merits that the oral disclosure of the planning board’s reasons separate from the transmission of its written report constituted an effective disapproval of the zoning proposal, respondents also contend that the courts below exceeded their authority in reviewing legislative action by the town board — i.e., its action on the proposed amendment to the zoning code. No quarrel lies with their assertion, for which unexceptionable authorities are cited, that zoning is a legislative act not generally reviewable in a proceeding under article 78 (e.g., Church v Town of Islip, 8 NY2d 254). As respondents themselves identify it, however, what this proceeding brought up for review and what the courts below have examined is the ruling of the supervisor as to the effect of the vote cast by the town board on the rezoning proposal — a procedural determination, but not the substance or content of the action taken by the town board, which was the legislative component of the events occurring at the April 16, 1981 town board meeting. The courts below have neither considered nor passed judgment on the wisdom or merit of the proposed zoning code amendment or otherwise usurped the legislative function of the board; their consideration extended only to the procedure by which the board acted, as to which they determined that under the applicable statutes a simple majority vote was effective to accomplish the legislative change of the zoning code. That a determination of such a nature — addressing a question of procedure only, eschewing any intrusion into the substance of the matter being voted on — is within the scope of judicial authority was established by this court in Matter of Town of Smithtown v Howell (31 NY2d 365), a case very much like this one in which the court determined the numerical sufficiency of a ballot on a zoning proposal (there of the planning agency).

Finally, we reject respondents’ challenge to the relief granted by the courts below — a direction that the town supervisor and town board proceed to rezone the subject premises in accordance with the board’s action on April 16, 1981. On the record before us there is no merit to their claim that such judicial direction constitutes an encroachment on the legislative function of the town board. Courts are not without authority to direct the performance of duties imposed by statute for implementation of legislative action which they have found to have been properly taken. So far as appears, what remains to be done for compliance with the judgment of Supreme Court affirmed by the Appellate Division is ministerial conduct only. Respondents identify no action of a legislative or judgmental nature which might be said to be dictated by the mandate of the courts below.

For the reasons stated the order of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Wachtler, Fuchsberg and Meyer concur; Judge Simons taking no part.

Order affirmed, with costs.

      . Subdivision F of section 30.91 of the Town of Walworth Municipal Code provided in pertinent part:
      “Within thirty (30) days after receipt of a full statement of such referred matter, the County Planning Board, or an authorized agent of said Board, shall report its recommendations thereon to the Town Board, accompanied by a full statement of the reasons for such recommendations. If the County Planning Board disapproves the proposal, or recommends modification thereof, the Town Board shall not act contrary to such disapproval or recommendation except by a vote of a majority plus one of all the members thereof and after the adoption of a resolution fully setting forth the reasons for such contrary action. The Town Supervisor shall read the report of the County Planning Board at the public hearing on the matter under review.
      “If the County Planning Board fails to report within such period of thirty (30) days or such longer period as may have been agreed upon by it and the referring agency, the Town Board may act without such report.”

      . We do not address the claim made in respondents’ brief that the matter should have been referred back to the town board when it was judicially determined that the majority-plus-one requirement of section 239-m of the General Municipal Law had not been activated “since the Board members may have voted according to an understanding of § 239-m which the Courts below have not adopted” — suggesting that the board members whose affirmative votes carried the proposal to amend the zoning ordinance might not have so voted had they known that that would be the result. Aside from the lack of standing of appellants to raise this issue, there is no support in the record for any such assertion.


author: Per Curiam.

text:
    Mansfield State Bank, Appellant, v Maurice J. Cohn, Respondent. Chicago Title Insurance Company, Judgment Creditor.
    Argued February 8, 1983;
    decided February 23, 1983

      POINTS OF COUNSEL

      Sandra R. M. Gluck and Charles L. Trowbridge for appellant.
    I. Appellant is entitled to have the Texas judgment, as finally determined, reinstated, refiled and redocketed with the clerks of New York and Westchester Counties nunc pro tunc as of June 16, 1977. (Matter of Weppler [Kern], 170 Misc 933, 257 App Div 940; Stigwood Organisation v Devon Co., 91 Misc 2d 723.) II. Filing and docketing of the Texas judgment nunc pro tunc should be effective as against all of respondent’s subsequent judgment creditors. (Close v Gillespey, 3 Johns 526.)
    Respondent precluded.

      Carol Lilienfeld for judgment creditor.
    I. Appellant may not have retroactive filing of a judgment nunc pro tunc to defeat the priority of previously recorded judgment creditors. (People’s Nat. Bank v Hitchcock, 104 Misc 2d 647; Overmyer v Eliot Realty, 83 Misc 2d 694; Matter of Weppler [Kern], 170 Misc 933; Stigwood Organisation v Devon Co., 91 Misc 2d 723.) II. Judicial error may not be remedied by nunc pro tunc filing. (Matter of Grube, 162 Misc 267; Close v Gillespey, 3 Johns 526; Karpuk v Karpuk, 177 Misc 729; Matter of Craig, 11 Misc 2d 258.)
   OPINION OF THE COURT

Per Curiam.

Where a foreign judgment is filed in New York under CPLR 5402, that filing is then vacated when the foreign judgment is reversed on intermediate appeal, and a new filing thereafter made when the foreign judgment is reinstated on further appeal, the lien of the judgment creditor in New York dates from the date of the new filing. The inherent power of a court to correct clerical errors in a prior determination may not be invoked to effect the retroactive creation of substantive rights when the rights of third parties have intervened.

The chain of factual and procedural events which gave rise to this litigation is described in detail in the dissenting opinion at the Appellate Division (88 AD2d 837, 838). Priority as between the lien of the bank as judgment creditor under the Texas judgment filed in New York County pursuant to the provisions of CPLR 5402 and the lien of the title insurance company as judgment creditor under its judgment docketed in New York County is to be determined under New York law; we are unconcerned as to the status in Texas of the successive orders of the Texas courts.

The first event of any legal significance for present purposes was the filing by the bank on June 16,1977 of an authenticated copy of the judgment in its favor rendered by the District Court of Tarrant County, Texas. That filing gave the bank the same lien it would have had had the judgment been that of the Supreme Court of the State of New York (CPLR 5402, subd [b]). The reversal on February 23, 1978 of the Texas judgment by the Texas Court of Civil Appeals, that State’s intermediate appellate court, without more served only to expose the filing in New York to an application for vacatur or a stay of enforcement. The bank then voluntarily moved “for an order providing for the vacating of the filing of the Texas judgment * * * without prejudice, to the refiling of said Texas judgment if such judgment is revised or reinstated”, and the judgment debtor cross-moved for an order “vacating the filing of the Judgment”. The court made an order, entered on July 28, 1978, granting the bank’s motion, vacating the filing of the Texas judgment, and vacating and nullifying the docketing of that judgment. (The requested “without prejudice” provision was deleted from this order.) The bank took no appeal.

On November 7, 1978 following further appeal the Supreme Court of Texas reinstated the Texas judgment. That reinstatement, without more, had no legal consequence in New York. On November 21, 1978, the title insurance company docketed its Supreme Court, New York County, judgment against the judgment debtor. At the time of this docketing, there was no filing of record with respect to the now reinstated Texas judgment. On March 30,1979, on the bank’s motion, Supreme Court, New York County, authorized the filing of the Texas judgment as finally determined.

Thereafter, on July 1, 1980 the bank moved for reinstatement of the filing of the modified Texas judgment, nunc pro tunc, as of June 16, 1977, the date of the original filing. Supreme Court denied the motion, and the Appellate Division affirmed. We agree that the bank’s application was properly denied.

Following the 1978 vacatur of the filing in New York, that filing was a nullity, all liens evolving therefrom were dissolved, and without the 1977 filing the reinstatement of the modified judgment by the Texas court was unavailing to create or to reinstate any lien in New York prior to the date of the refiling. Anyone searching the records in New York was entitled to rely on the absence of any existing lien of record so far as the Texas judgment was concerned. Accordingly, when the title insurance company docketed its New York judgment on November 21,1978, its lien was superior to any lien the bank might claim under it's reinstated Texas judgment.

The denial of nunc pro tunc relief was mandatory. The relief sought by the bank was not to correct any irregularity, mistake, omission or other error; the bank sought the creation of a new lien retroactive to the date of its prior lien which, on its own motion, had been effectively nullified. The would-be invocation of a court’s inherent power to correct error in a prior judgment is unavailing as a predicate for the creation of new substantive rights. The rights of the third party title insurance company had effectively intervened.

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

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

Order affirmed, with costs.

       It is observed that the original Texas judgment was for the principal debt and interest, plus attorney’s fees. The Texas Supreme Court reinstated that portion of the judgment for principal and interest but affirmed the reversal of that portion of the judgment for attorney’s fees.