author: Levine, J.

text:
    [670 NE2d 419, 647 NYS2d 135]
    Long Island Power Authority et al., Respondents-Appellants, v Shoreham-Wading River Central School District et al., Appellants-Respondents.
    Argued March 27, 1996;
    decided June 13, 1996

      POINTS OF COUNSEL

      Murphy, Bartol & O'Brien, L.L.P., Mineóla (Ernest T. Bartol and Jeffrey P. Sharkey of counsel); Lewis & Greer, P. C., Poughkeepsie (Lou Lewis and Michael J. Englert of counsel); Emily Pines, Town Attorney of Town of Brookhaven, Medford; Sapienza & Frank, Mineóla (Salvatore Sapienza of counsel); and Robert Cimino, County Attorney of County of Suffolk, Hauppauge (Robert L. Garfinkle of counsel), for Shoreham-Wading River Central School District and others, appellants-respondents.
    I. Long Island Lighting Company (LILCO) is liable for all 1991-1992 real property taxes attributable to the Shoreham plant. (Makoroff v City of Lockport, 916 F2d 890; United States v Alabama, 313 US 274; United States v Certain Lands Located in Town of Hempstead, 31 F Supp 513; People of City of Buffalo v Cannizzario, 17 Misc 2d 839; Matter of Citizens For An Orderly Energy Policy v Cuomo, 78 NY2d 398; Matter of

      Adams Co. v Nist, 72 App Div 908; City of Rochester v Union Free School Dist. No. 4, 255 App Div 96.) II. Public Authorities Law § 1020-q (3) expressly provides that Long Island Power Authority (LIPA) is not entitled to seek refunds of payments in lieu of taxes (PILOTs) based upon any subsequent reductions in Shoreham’s assessed value. (Matter of Long Is. Light. Co. v Assessor of Town of Brookhaven, 154 AD2d 188; Long Is. Power Auth. v Shoreham-Wading Riv. School Dist., 195 AD2d 140; Williams v Mayor, 289 US 36; Village of Herkimer v Axelrod, 58 NY2d 1069; Matter of Bowen v State Commn. of Correction, 104 AD2d 238; Long Is. Light. Co. v Cuomo, 666 F Supp 370.)

      Richard Charles Hamburger, P. C., Melville (Richard Hamburger and David N. Yaffee of counsel), for Shoreham-Wading River Public Library District and another, appellants-respondents.
    I. LIPA is required to make PILOT payments fixed by reference to an immutable first-year amount equal to the tax dollar amount which would have been received by defendants in that first year, and no subsequent "reassessed” valuation may alter this fixed first-year PILOT payment or result in PILOT payment refund liability. (Matter of Long Is. Light. Co. v Assessor of Town of Brookhaven, 154 AD2d 188.) II. The Legislature’s failure to specifically impose PILOT payment refund liability upon the Library and Fire District, let alone any of the other defendants, argues against any interpretation of the LIPA Act which would result in such refund liability. (Greater Poughkeepsie Lib. Dist. v Town of Poughkeepsie, 81 NY2d 574; Board of Educ. v State of New York, 111 AD2d 505; Vantage Petroleum v Board of Assessment Review, 91 AD2d 1037, 61 NY2d 695; B & F Bldg. Corp. v Liebig, 76 NY2d 689; Arbegast v Board of Educ., 65 NY2d 161.) III. The LIPA Act’s silence on the subject of PILOT payment refunds against a background of case and statutory law which makes no provision whatsoever for PILOT payment refunds, also argues against any interpretation of the LIPA Act which would result in such refund liability. (Matter of Glens Falls City School Dist. v City of Glens Falls Indus. Dev. Agency, 196 AD2d 334; Matter of Pyramid Co. v Tibbets, 76 NY2d 148; Matter of EFCO Prods. v Cullen, 161 AD2d 44.) IV. LIPA and LILCO are bound by the rules set forth in the LIPA Act and may not seek to undo choices they have made within the framework of that Act.

      Rivkin, Radler & Kremer, Uniondale (Arthur J. Kremer, Evan H. Krinick, Merril Schapiro Biscone and Christine M.

      Metzner of counsel), and Stanley Klimberg, Garden City, for Long Island Power Authority, respondent-appellant.
    I. Basic principles of statutory construction compel the interpretation of the LIPA Act urged by LIPA. (People v Evans, 79 NY2d 407; Matter of Sutka v Conners, 73 NY2d 395; People v Craig, 78 NY2d 616; Matter of Greenberg [Ryder Truck Rental], 70 NY2d 573; Matter of Wood v Irving, 85 NY2d 238; Matter of Klein [Hartnett], 78 NY2d 662; People v Laing, 79 NY2d 166; Matter of Chemical Specialities Mfrs. Assn. v Jorling, 85 NY2d 382; Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151; Price v Price, 69 NY2d 8.) II. Public Authorities Law § 1020-q (1) unambiguously provides that LIPA’s PILOT obligation commenced upon the acquisition of Shoreham, without reference to identity of the owner of Shoreham on the tax status date or tax lien date. (Southbridge Finishing Co. v Golding, 2 AD2d 430; O’Dea v School Dist., 122 AD2d 553; Matter of Citizens For An Orderly Energy Policy v Cuomo, 78 NY2d 398; Matter of Carr v New York State Bd. of Elections, 40 NY2d 556; People ex rel. American Bible Socy. v Commissioners of Taxes & Assessments, 142 NY 348; Rochester Hous. Auth. v Sibley Corp., 77 Misc 2d 205, 47 AD2d 718; United States v Alabama, 313 US 274; United States v Certain Lands Located in Town of Hempstead, 31 F Supp 513; Matter of Adams Co. v Nist, 72 AD2d 908; Young Israel v City of New York, 33 AD2d 561.) III. The courts below properly found that in the event of a court order or settlement reducing the assessment of Shore-ham, the amount of PILOTS must be reduced commensurately and LIPA is entitled to a refund of overpaid PILOTS, with interest. (Matter of County of Fulton v State of New York, 76 NY2d 675; Matter of Long Is. Light. Co. v Assessor for Town of Brookhaven, 202 AD2d 32; People v Mackey, 77 NY2d 846; Gregory v Town of Cambria, 69 NY2d 655.) IV. The courts below incorrectly determined that PILOTS must be made in perpetuity; the LIPA Act provides that PILOTS are reduced each year by 10% of the first year’s payment for 10 years. (Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151; Matter of Long Is. Light. Co. v Assessor of Town of Brookhaven, 154 AD2d 188; Long Is. Light. Co. v Cuomo, 666 F Supp 370.)

      LeBoeuf Lamb Greene & MacRae, LLP, New York City (Michael Lesch and John G. Nicolich of counsel), Leonard P. Novello, Hicksville, and Ronald J. Macklin for Long Island Lighting Company, respondent-appellant.
    I. The courts below incorrectly construed the LIPA Act concerning the duration and amounts of Shoreham PILOTS. (Matter of New York Post

      Corp. v Leibowitz, 2 NY2d 677; Matter of Meyer, 209 NY 386; Matter of Capone v Weaver, 6 NY2d 307; Matter of Drake v Comptroller of City of N. Y., 278 App Div 317; Surace v Danna, 248 NY 18; Le Drugstore Etats v New York State Bd. of Pharmacy, 33 NY2d 298; Clarke v Mayor, 111 NY 621; Matter of Quotron Sys. v Irizarry, 48 NY2d 795; People v Fitzgerald, 180 NY 269; People ex rel. Fleming v Dalton, 158 NY 175.) II. The courts below correctly held that Shoreham PILOTS are a complete substitution for Shoreham taxes as of February 29, 1992. (Matter of Carpenter v Board of Educ., 71 NY2d 832; Pajak v Pajak, 56 NY2d 394; Prego v City of New York, 147 AD2d 165; O’Dea v School Dist., 122 AD2d 553; Matter of County of Suffolk v New York State Bd. of Equalization & Assessment, 207 AD2d 233, 86 NY2d 702; Matter of Railroad Maintenance Corp. v New York City Tr. Auth., 146 AD2d 780, 74 NY2d 714; Matter of Adams Co. v Nist, 72 AD2d 908.) III. The courts below correctly held that the municipalities must refund any excessive Shoreham PILOTS attributable to the overassessment of Shoreham. (Matter of Consolidated Edison Co. v State Bd. of Equalization & Assessment, 73 AD2d 31, 53 NY2d 975; Matter of Pyramid Co. v Tibbets, 76 NY2d 148; Video Aid Corp. v Town of Wallkill, 85 NY2d 663; Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415.)
   OPINION OF THE COURT

Levine, J.

These cross appeals involve the construction of provisions of the Long Island Power Authority Act (Public Authorities Law §§ 1020 — 1020-hh [L 1986, ch 517 (eff Jan. 15, 1987)]), dealing with the obligation of plaintiff Long Island Power Authority (LIPA) to make payments in lieu of taxes (PILOTs) to the defendant local governmental taxing jurisdictions which otherwise would have been due from intervenor plaintiff Long Island Lighting Company (LILCO) except for LIPA’s acquisition of LILCO’s Shoreham Nuclear Power Plant. At issue are: (1) the effective date for substitution of LIPA’s PILOT obligation for LILCO’s real property tax liability on the Shoreham plant; (2) whether and at what level, if any, PILOTs on Shoreham are to continue in perpetuity; and (3) whether LIPA may seek refunds on past PILOTs based upon court challenges to existing assessed valuations of the Shoreham plant.

Enacted in 1986, the LIPA Act created a public power authority having the prerogative to acquire all or part of LILCO’s assets through a negotiated settlement, tender offer for LILCO’s capital stock or the exercise of eminent domain (Public Authorities Law § 1020-h). The Act further stipulated, however, that upon acquisition of the Shoreham plant, LIPA was to close and decommission the plant "forthwith” (Public Authorities Law § 1020-h [9]).

The LIPA Act gave LIPA tax-exempt status, as a public authority, respecting any property it acquired from LILCO (Public Authorities Law § 1020-p). In recognition of the potentially drastic fiscal impact of the loss of local property tax revenues because of the exemption, the LIPA Act provided for LIPA’s payment of PILOTs to the municipalities and school districts affected by any such acquisition of LILCO property (Public Authorities Law § 1020-q [1]). However, in the case of the Shoreham plant, the Act provided for reduction in the amount of PILOTs over time. Thus, Public Authorities Law § 1020-q (1) provides:

" 1020-q. Payments in lieu of taxes
"1. Each year after property theretofore owned by LILCO is acquired by the authority by any means authorized by this title and, as a consequence, is removed from the tax rolls, the authority shall make payments in lieu of taxes to municipalities and school districts equal to the taxes and assessments which would have been received from year to year by each such jurisdiction if such acquisition had not occurred, except for such taxing jurisdictions which tax the Shoreham plant, in which case the in lieu of tax payments shall in the first year after the acquisition be equal to one hundred percent of the taxes and assessments which would have been received by such taxing jurisdictions. In each succeeding year such in lieu of tax payments shall be decreased by ten percent until such time as such payments equal taxes and assessments which would have been levied on such plant in a nonoperative state.”

In February 1989, then Governor Cuomo, LIPA and LILCO entered into a "Settlement Agreement” for the acquisition by LIPA of only the Shoreham plant, for | (see, Matter of Citizens For An Orderly Energy Policy v Cuomo, 78 NY2d 398, 408, rearg denied 79 NY2d 851, 852). The settlement agreement was immediately the subject of a legal challenge in the Matter of Citizens For An Orderly Energy Policy case. Transfer of Shore-ham was blocked until the final disposition of that suit by this Court’s decision upholding the settlement; therefore, the actual transfer of title to LIPA did not occur until February 29, 1992. Nonetheless, the closing and decommissioning of Shoreham proceeded in anticipation of the eventual settlement takeover, to the point where, after authorization from the Federal Nuclear Regulatory Commission, the plant was rendered permanently and irreversibly nonoperative in 1991.

Beginning in 1976, LILCO had challenged overassessment of the Shoreham plant through tax certiorari proceedings under RPTL article 7 against the assessor of the Town of Brookhaven. A joint trial of seven such certiorari proceedings, for the tax years 1976-1977 through 1983-1984 (excluding 1979-1980), known as the "Phase I” tax years, was held in Supreme Court, Suffolk County. The Phase I litigation resulted in a substantial reduction in the assessed valuations of the Shoreham plant and a total tax refund to LILCO of some $34 million plus interest. The judgment was affirmed and is now final (see, Matter of Long Is. Light. Co. v Assessor for Town of Brookhaven, 202 AD2d 32, lv denied 85 NY2d 809). A second ("Phase II”) consolidated certiorari trial for the tax years 1984-1985 through 1991-1992 has also been concluded and a decision is pending. The annual assessed valuations of Shoreham had grown in amount with corresponding increases in property taxes of from $60,501,343 in 1987 when the LIPA Act became effective, to $82,066,699 in 1992 when transfer of Shoreham to LIPA was finally achieved. Under a transfer agreement between LILCO and LIPA, LILCO assumed the obligation to fund the PILOTs on Shoreham required under the LIPA Act.

Prior to the transfer of the Shoreham plant to LIPA on February 29, 1992, LILCO had made a payment of one half of the approximately $82 million in taxes due on Shoreham for the tax year 1991-1992, before the statutory deadline of January 10, 1992. Under tax legislation for Suffolk County, the tax year for real property taxes runs from December 1 to November 30 (Suffolk County Tax Act § 13 [b]), and by annual resolution of the Town of Brookhaven the tax liability may be paid without penalty in two equal installments on January 10 and May 31 of each tax year (see, id., § 13 [c]).

Disputes between LIPA, LILCO and the defendant local governmental units continued to exist, however, including litigation delaying the final decommissioning of the plant and disagreement over the effective date when PILOTs were to supersede LILCO’s tax obligation. Before the May 31, 1992 tax payment was due, the parties entered into an interim agreement providing for the end of litigation involving the decommissioning of the Shoreham plant, for the payment by LIPA (from LILCO sources) of some $41 million to the Town of Brook-haven, without prejudice to the respective positions of the parties, and for two additional payments.

Shortly after the interim agreement was signed, the instant action was commenced. Plaintiffs’ primary claims for relief were a declaration that: (1) LILCO’s responsibility for tax payments attributable to the Shoreham plant terminated upon transfer on February 29, 1992; (2) LIPA’s PILOT responsibility commenced the next day; (3) the plant was "nonoperative” prior to transfer; (4) no further PILOTs were owed because the plant was transferred in a "nonoperative” state; and (5) LILCO and LIPA were entitled to contest the assessments of the Shore-ham plant after takeover upon which PILOTs were based and to seek refunds for overpayments of PILOTs made pending such determination. The defendants’ answers asserted counterclaims seeking declarations that: (1) LILCO was responsible for tax payments through the end of the 1991-1992 tax year, November 30, 1992; (2) LIPA’s PILOT responsibility commenced on December 1, 1992, and each succeeding year the PILOT would decrease by 10% of the preceding year’s payment; (3) LIPA was obligated to make PILOTs in perpetuity of approximately $56 million based upon the tax assessment on the Shoreham plant for the 1985-1986 tax year when it was completely constructed and "nonoperative”, and (4) defendants could use all remedies provided by the Real Property Tax Law and the Suffolk County Tax Act to collect the PILOTs owed by LIPA.

On cross motions for summary judgment, Supreme Court declared, inter alla, that: (1) LILCO’s tax liability ceased, and LIPA’s PILOTs began upon the February 29, 1992 transfer of the Shoreham plant; (2) any excess PILOTs based upon a determination reducing the assessed valuation of the Shoreham plant in pending or future tax certiorari proceedings would be subject to full refunds to LIPA and LILCO; (3) the Shoreham plant was nonoperative (i.e., incapable of generating electricity) prior to and on the day of transfer; and (4) Shoreham PILOTS for the first year would be 100% of the taxes and assessments LILCO would have been required to pay had the transfer not occurred, after which PILOTs would be reduced by 10% of the previous year’s amount until the PILOTs equal the taxes and assessments LILCO would have been required to pay on the Shoreham. plant in a nonoperative state, which payments would then continue in perpetuity.

Plaintiffs and defendants cross-appealed, and the Appellate Division affirmed (195 AD2d 140). After the parties stipulated to dismissals of one unresolved cause of action in the complaint and one contained in a counterclaim, the resultant judgment became final for all purposes; we then granted leave to appeal, and now modify in one respect.

I. The Effective Date for Commencement of PILOTS

In our view, the courts below erred in concluding that LI-PA’s PILOT obligation superseded LILCO’s real property tax liability immediately upon the February 29, 1992 date of transfer of Shoreham. Under the Suffolk County Tax Act, the tax status date for the December 1, 1991-November 30, 1992 taxable year was June 1, 1991 (Suffolk County Tax Act former § 5). Real property taxes owed on the Shoreham plant for the 1991-1992 taxable year became a lien on that property on December 1,1991 (Suffolk County Tax Act § 13 [b]). Thus, Shore-ham’s statutory tax-exempt status as property of LIPA did not go into effect before the June 1, 1991 tax status date for the December 1, 1991-November 30, 1992 taxable year. Moreover, the taxes owed on the Shoreham plant for that year became a lien on the property before it was acquired by LIPA, its present tax-exempt owner.

The well-established general rule is that ownership of real estate on the taxable status date determines whether the property is subject to real property taxation for the entire ensuing taxable year, irrespective of the property’s subsequent acquisition by a tax-exempt entity during that taxable year (see, People ex rel. Luther v McDermott, 265 NY 47, 51; Matter of Adams Co. v Nist, 72 AD2d 908, 909; Young Israel v City of New York, 33 AD2d 561; Lutheran High School Assn. v City of New York, 29 AD2d 890, affd 27 NY2d 939, rearg denied 28 NY2d 859). There is an exception if the acquiring entity is the State or Federal Government, but that exception does not apply where, as here, the tax lien, even if inchoate, has attached to the property before the transfer of ownership (see, United States v Alabama, 313 US 274, 281-282; 8 Opns Counsel SBEA No. 44; 4 Opns Counsel SBEA No. 60; cf., Loconti v City of Utica, 61 Misc 2d 855; 1981 Opns St Comp No. 81-7). The lien, of course, cannot be enforced so long as the State or the United States holds title, but the lien itself is not extinguished (see, United States v. Alabama, supra; 8 Opns Counsel SBEA No. 44, op. cit.).

The general rule may be overcome by legislation indicating a contrary intention (see, People ex rel. American Bible Socy. v Commissioners of Taxes & Assessments, 142 NY 348, 350-352; Rochester Hous. Auth. v Sibley Corp., 77 Misc 2d 205, 209-210, affd 47 AD2d 718; see also, United States v Alabama, supra).

We find no indication, either in the statutory language or legislative history, that the Legislature intended to override the general rule and make Shoreham’s tax-exempt status, triggering LIPA’s PILOT obligation, effective immediately upon acquisition. If anything, the express wording of Public Authorities Law § 1020-q (1) supports the opposite view. Thus, Public Authorities Law § 1020-q (1) provides that annual PILOTs are due "[e]ach year after property theretofore owned by LILCO is acquired by [LIPA] * * * and, as a consequence, is removed from the tax rolls” (emphasis supplied). Undeniably, however, Shoreham was not finally removed from the tax rolls until July 1, 1992, well after the May 31,1992 due date for payment of the final, second half installment of 1991-1992 taxes on the plant. Accordingly, PILOTs (payments in lieu of taxes) would not become due until the next succeeding tax payment became due, i.e., for the December 1, 1992-November 30, 1993 taxable year.

We find unpersuasive plaintiffs’ argument that, because the "removed from the tax rolls” language was not repeated in that portion of Public Authorities Law § 1020-q (1) dealing specifically with Shoreham PILOTs, the PILOTs on LIPA’s acquisition of that property should begin immediately upon transfer. There is nothing in the legislative history to indicate an intent by the Legislature to provide for Shoreham PILOT payments out of synchronization with PILOTs on other acquired LILCO properties or out of synchronization with the statutory tax years. Rather, the specific statutory treatment of PILOTs attributable to the Shoreham transfer was intended solely to address the declining payment schedule for Shoreham PILOTs, differing from PILOTs on other LILCO property acquired by LIPA in only that respect. Likewise, we reject plaintiffs’ argument that provisions of the Suffolk County Tax Act with respect to the tax status date and the effective date of attachment of tax liens, etc., are preempted by the LIPA Act (see, Public Authorities Law § 1020-gg). Although the enforcement mechanisms of the Suffolk County Tax Act may not be applied to LIPA, the provisions relied upon by us to determine when PILOTs supersede LILCO’s tax liability on Shoreham are not in conflict with the LIPA Act, which only preempts when LIPA Act provisions are "inconsistent” with other statutory provisions. For the foregoing reasons, the judgment must be modified to declare that LIPA’s PILOT obligation begins with the December 1, 1992-November 30, 1993 taxable year.

II. The Duration of LIPA’s Obligation to Pay PILOTs on the Shoreham Plant

LILCO’s position on this issue is that PILOTs on Shoreham should terminate entirely after the expiration of the first year following LIPA’s acquisition of the Shoreham plant. LILCO, thus, reads Public Authorities Law § 1020-q (1) as requiring PILOTS at 100% of taxes and assessments "in the first year after the acquisition”, and then requiring declining PILOTs only "until such time as such payments equal taxes and assessments which would have been levied on such plant in a nonoperative state” (Public Authorities Law § 1020-q [1]). Since no one disputes on this appeal Supreme Court’s declaration that Shoreham was in a nonoperative state at the time of transfer, LILCO argues that PILOTs should have terminated one year after the date of transfer.

We agree with the courts below that the statute is not subject to LILCO’s interpretation. First, LILCO’s reading of the statute would only be tenable if section 1020-q (1) limited the continuation of all payments in lieu of taxes to the point when they were the equivalent of taxes and assessments properly levied on the plant in a nonoperative state. The LIPA Act, however, only expressly limits the decreases in PILOTs to that point of equivalency to tax levies on a nonoperative facility. Thus, the most reasonable construction of section 1020-q (1) directs gradual reduction of the size of PILOTs until they reach a floor level of taxes and assessments which the taxing jurisdictions would have received from LILCO based upon a properly assessed valuation of a defunct Shoreham plant. Our reading of Public Authorities Law § 1020-q (1) is confirmed by the Assembly sponsor’s legislative memorandum in support of the LIPA Act proposal, and also by basic real property tax assessment principles. The sponsoring memorandum outlined that, as to the general acquisition of LILCO properties envisaged by the LIPA Act "LIPA is required to make payments in lieu of taxes and assessments to municipalities equal to the taxes and assessments that would have been received if its properties were owned by a private entity” (Mem of Assembly Sponsor, Bill Jacket, L 1986, ch 517, at 13). However, the memorandum further explained, "with respect to the real property on which the Shoreham Nuclear Plant is located, in lieu payments are required in amounts which phase-down their inordinate and inequitable size” (id. [emphasis supplied]). Thus, although LILCO relies on documents indicating that officials who did not directly participate in the legislative process of enacting the LIPA Act may have interpreted section 1020-q (1) differently, what was contemplated by the Legislature was a "phase down” to PILOTs equivalent to the taxes and assessments which LILCO would have paid based on a properly assessed valuation of the defunct Shoreham plant.

A total elimination of PILOTs on the Shoreham plant in its nonoperative state would have defeated the overriding purpose of Public Authorities Law § 1020-q (1), to provide a substitute stream of municipal revenue on all LILCO property acquired by LIPA, for the taxes which fairly and properly "would have been received from year to year by each [taxing] jurisdiction if such acquisition had not occurred” (id.). Even nonoperative property of a public utility has assessable value for purposes of local taxation. In People ex rel. Lyford v Allen (286 App Div 621) then-Justice Bergan held that "[e]yen if a railroad is defunct as an entity, the value of its real estate apart from utilization for railroad purposes is not only assessable but it must be assessed 'at the full value thereof ’ ”, and would have remitted to the trial court "to fix the salvage or usable value of the structures” in the absence of a stipulation by the parties to a specified increase in assessment to reflect an estimated approximate value of the utility’s property above the value of the land (id., at 626, 627; see also, Matter of Onondaga County Water Dist. v Board of Assessors, 39 NY2d 601, 606 [utility’s property assessment may be reduced for "functional obsolescence”]).

Correspondingly here, the LIPA Act concededly contemplated PILOTs of indefinite duration on all acquired LILCO property other than the Shoreham plant to be based upon the level of taxation LILCO would have paid but for LIPA’s acquisition. There is nothing in the statutory language or the legislative history to indicate that the PILOTs on LILCO’s Shoreham property were to be treated differently except to gradually reduce their size to eliminate "inordinate and inequitable” assessments on Shoreham (Bill Jacket, L 1986, ch 517, at 13) and ultimately to reflect its true value as a defunct plant.

It follows from the foregoing that the courts below properly held that PILOTs on the Shoreham plant will continue as a perpetual obligation of LIPA, subject to reduction until its attainment of its legally and properly assessed valuation in a nonoperative state, as determined by way of agreement among the parties to this action, or by a court of competent jurisdiction. We also agree with the Supreme Court and the Appellate Division that the literal language of Public Authorities Law § 1020-q (1) controls regarding the rate of reduction of PILOTs, that is, "[i]n each succeeding year [PILOTs] shall be decreased by ten percent until” the statutory floor is reached. Hence, PILOTS on Shoreham are to be reduced each year by 10% of the PILOT of the preceding year.

III. PILOT Refunds

The remaining major issue to be addressed is whether LIPA is precluded from seeking refunds on past PILOTs for the taxable years following the Shoreham acquisition. Because the first year PILOT is "equal to one hundred percent of the taxes and assessments which would have been received by [the defendant] taxing jurisdictions [had the takeover not occurred]” (Public Authorities Law § 1020-q [1] [emphasis supplied]), and the PILOTS for subsequent years are calculated off of that initial figure (id.), a reduction in Shoreham’s assessed valuation for the first PILOT year would reduce the taxes that "would have been received” but for the takeover and, thus, directly reduce the statutorily required PILOT payments.

The defendants rely on Public Authorities Law § 1020-q (3) to support their position that LIPA is precluded from seeking refunds on past PILOTs through challenges to assessed valuations of the Shoreham plant. Section 1020-q (3) provides that no local governmental taxing jurisdiction "shall be liable to [LIPA] or any other entity for a refund of property taxes originally assessed against the Shoreham plant”. That section also bars recovery of any refund from any such taxing jurisdiction of taxes previously paid, which refund may have become due as a result of a "judicial determination that the Shoreham plant assessment was excessive, unequal or unlawful for any of the years from [1976] to the effective date of this title”. Finally, section 1020-q (3) directs that LIPA was to "discontinue and abandon all proceedings, brought by its predecessor in interest, which seek the repayment of all or part of the taxes assessed against the Shoreham plant”.

In Matter of Long Is. Light. Co. v Assessor of Town of Brook-haven (154 AD2d 188), the Appellate Division held that Public Authorities Law § 1020-q (3) was unconstitutional to the extent that it purported to bar LILCO (as "any other entity”) from enforcing its right to tax refunds for overassessments of Shore-ham in pending tax certiorari proceedings. Defendants are correct in noting that, as a State governmental entity, LIPA does not enjoy the constitutional protection afforded a privately owned utility such as LILCO.

Nonetheless, we agree with the courts below that Public Authorities Law § 1020-q (3) should not be read as completely immunizing the various taxing jurisdictions from refund liability for PILOT overpayments based upon inflated assessed valuations of Shoreham following enactment of the LIPA Act. The plain language of Public Authorities Law § 1020-q (3) does not prohibit an action by LIPA to recover PILOT overpayments (cf., Public Authorities Law § 1020-f [a] [LIPA has authority to sue and be sued]). Section 1020-q (3) bespeaks of a legislative intent limited to relieving the local taxing jurisdictions from the drastic impact of substantial refund liability for past taxes and assessments challenged by LILCO, not PILOTs prospectively imposed following LIPA’s acquisition of the Shoreham plant. Thus, section 1020-q (3) prevents refund liability for "property taxes originally assessed” (emphasis supplied) against the Shoreham plant, or for "refund[s] of taxes” based upon a judicial determination of overassessed evaluation "for any of the years from [1976] to the effective date of this title [January 15, 1987]” (emphasis supplied). Similarly, LIPA is only directed to discontinue the prior tax certiorari proceedings of "its predecessor in interest”, which can only refer to challenges to taxes assessed while LILCO (LIPA’s predecessor in interest) was the owner of the Shoreham plant, not proceedings challenging the level of PILOTs imposed after LIPA acquired the plant. While section 1020-q looks backward to taxes previously assessed, defendants’ liability for PILOT refunds was, as of the effective date of the Act, wholly prospective. Thus, the plain language of Public Authorities Law § 1020-q (3) limits its application to proceedings to recover taxes overpaid during a specific period of time.

Our limited reading of section 1020-q (3) is consistent with the legislative history of the LIPA Act. As previously noted, the Assembly sponsoring memorandum expressed conviction that, at the time of passage of the LIPA Act, taxes were already of "inordinate and inequitable size” (Mem of Assembly Sponsor, Bill Jacket, L 1986, ch 517, at 13). In the Assembly debates on the proposed LIPA legislation, the then current taxes and assessments on Shoreham were characterized as a "windfall” which "no longer should be allowed” (Member of Assembly Harenberg, Assembly Floor Debates, July 1, 1986, at 369). It would be entirely inconsistent with this view of the inflated status of taxes and assessments on the Shoreham plant at the time of enactment of the LIPA statute to ascribe to the Legislature an intent to permit the local taxing jurisdictions to increase the size of payments in lieu of such taxes and assessments, totally insulated from judicial review by a LIPA challenge to assessed valuations and a demand for refunds of PILOT overpayments based thereon. In light of the plain language of the statute and this legislative history, the defendants’ position on this issue, which would in effect leave LIPA at the discretion of local assessors in determining the magnitude of PILOTS after a Shoreham takeover, cannot prevail. Thus, we leave undisturbed the determination of the courts below on the refund issue.

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Ciparick concur.

Judgment appealed from and order of the Appellate Division brought up for review modified, etc.

      . The tax roll refers to the final assessment roll upon which the property taxes due for that year have been entered and to which a warrant authorizing their collection has been annexed (see, RPTL 900 [1]; 904 [2]). As the assessed valuation of both taxable and exempt property is entered on the assessment roll (see, RPTL 502 [5]), previously taxable property is effectively removed from the tax roll when the final assessment roll is filed with the city or town clerk as required by law (see, RPTL 516) with the subject property listed on the exempt portion of the roll. By chapter 611 of the Laws of 1990, the 1992 Suffolk County tax status date became March 1, and the date for completion and filing of the final assessment roll in Suffolk County became July 1.

      . The Library District’s additional argument that a declaration as to the availability of PILOT refunds is unenforceable as against it because it lacks statutory tax refund authorization (see, 1995 Opns St Comp No. 95-15) is unpreserved for our review.


source: Caselaw Access Project

author: Levine, J. Titone, J.

license: Public Domain

text:
    [670 NE2d 426, 647 NYS2d 142]
    The People of the State of New York, Respondent, v Guy Alston, Appellant. The People of the State of New York, Respondent, v Rodney Morris, Appellant.
    Argued June 4, 1996;
    decided June 28, 1996

      POINTS OF COUNSEL

      Frank J. Loss, New York City, and Daniel L. Greenberg for appellant in the first above-entitled action.
    I. The trial court violated the CPL 270.15 (2) requirement that the prosecution exercise "peremptory challenges first,” and not against any jurors "in the jury box” after the exercise of defense challenges, depriving appellant of a substantial right, by engaging in a statutorily unauthorized jury selection procedure, over defense objection, that allowed the prosecutor to exercise challenges first, but not against the full box, and then after defense challenges were exercised. (People v White, 73 NY2d 468; People v Miles, 143 NY 383; People v Mancuso, 26 AD2d 292, 22 NY2d 679; People v Fromen, 284 App Div 576, 308 NY 324; People v McGonegal, 136 NY 62; People v Williams, 20 AD2d 622, 14 NY2d 948; Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151; People v Bolden, 81 NY2d 146; People v Williams, 26 NY2d 62.) II. Appellant was denied his due process right to a fair appeal and his right to effective assistance of counsel on appeal when the trial court sua sponte excused a prospective juror for cause from the venire based upon an unrecorded sidebar conference and refused to requestion the juror on the record when defense counsel and the court disagreed about whether the juror had, during that off-the-record conference, satisfactorily pledged to put aside her personal opposition to incarcerating people convicted of a crime in rendering a verdict. (Evitts v Lucey, 469 US 387; Griffin v Illinois, 351 US 12; Hardy v United States, 375 US 277; People v Montgomery, 24 NY2d 130; People v Rivera, 39 NY2d 519; People v Pride, 3 NY2d 545; People v Emmett, 25 NY2d 354; People v Gonzalez, 47 NY2d 606; People v Harrison, 85 NY2d 794; Matter of Mertens, 56 AD2d 456.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Ilisa T. Fleischer and Norman Barclay of counsel), for respondent in the first above-entitled action.
    I. Peremptory challenges were exercised in accordance with CPL 270.15 (2). (People v Jean, 75 NY2d 744; People v Pepper, 59 NY2d 353; People v Boulware, 29 NY2d 135, 405 US 995; People v Corbett, 52 NY2d 714; People v Stanard, 42 NY2d 74, 434 US 986; People v Fromen, 284 App Div 576, 308 NY 324; People v Blackmond, 212 AD2d 402; People v Levy, 194 AD2d 319.) II. The court made a record sufficient to support its decision to dismiss an unsworn juror for cause. (People v Pride, 3 NY2d 545; People v Harrison, 85 NY2d 794; Williams v Norman, 34 NY2d 626; People v Glass, 43 NY2d 283; People v Rivera, 39 NY2d 519; People v Fearon, 13 NY2d 59; Devine v Keller, 32 AD2d 34; People v West, 62 NY2d 708; People v Boulware, 29 NY2d 135, 405 US 995.)

      Jeffrey I. Richman, New York City, and Daniel L. Greenberg for appellant in the second above-entitled action.
    The jury selection procedure, in which the court, over objection, had each party, starting with the prosecutor, exercise their peremptory challenge to one juror at a time, and before the People had completed the exercise of "their peremptory challenges first” to all of the prospective jurors in the jury box, was contrary to law, denying appellant a substantial right. (People v White, 73 NY2d 468; People v McQuade, 110 NY 284; People v Miles, 143 NY 383; People v Mancuso, 26 AD2d 292; People v Fromen, 284 App Div 576; People v Carpenter, 102 NY 238; People v McGonegal, 136 NY 62; People v Williams, 20 AD2d 622; People v De Conto, 172 AD2d 684, 80 NY2d 943; People v Williams, 26 NY2d 62.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (John J. Orlando and Steven J. Chananie of counsel), for respondent in the second above-entitled action.
    The trial court properly exercised its discretion under the CPL during jury selection. (Moynahan v City of New York, 205 NY 181; People v McQuade, 110 NY 284; People v Levy, 194 AD2d 319; People v Boylan, 190 AD2d 1043; Pajak v Pajak, 56 NY2d 394; People v Williams, 26 NY2d 62; People v Grieco, 266 NY 48; People v McGonegal, 136 NY 62; People v Seligman, 35 AD2d 591; People v Hamlin, 9 AD2d 173.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Roseann B. MacKechnie, Amy Applehaum and Alyson J. Gill of counsel), for New York State District Attorneys’ Association, amicus curiae, in the second above-entitled action.
    CPL 270.15 (2) does not require use of the full box method for the exercise of peremptory challenges. (People v McQuade, 110 NY 284; People v Levy, 194 AD2d 319; People v Mancuso, 22 NY2d 679.)
   OPINION OF THE COURT

Levine, J.

Defendants in these cases raise a common issue regarding the proper construction of CPL 270.15, the statutory provision governing jury selection: whether that section mandates that the People make all their peremptory challenges to a particular array before the defendant is required to make any, or if it permits the court to require both parties to exercise peremptory challenges to a subset of jurors or sequentially to individual jurors in a particular array.

In People v Alston, the court and the parties questioned the group of prospective jurors seated in the jury box at the beginning of each round of jury selection. Thereafter, challenges for cause were made, first by the People, then the defense. The parties then executed their peremptory challenges. In the first two rounds, the prosecution exercised peremptory challenges with respect to the entire group of prospective jurors seated in the jury box. The defense followed, also exercising all its peremptory challenges to the entire panel sitting in the box. After two rounds, seven jurors had been accepted by both sides, sworn as trial jurors, and removed from the box. Fourteen prospective jurors were then seated in the jury box, questioned, and subjected to challenges for cause. The court then asked the parties — first the People and then the defense — to exercise peremptory challenges to the first five prospective jurors in the box (five jurors were needed to complete the jury). Defendant objected, arguing that the People must challenge the entire panel seated in the box, not part of the panel. The objection was noted, but the voir dire proceeded as directed by the Trial Judge, with the number of jurors the parties were permitted to peremptorily challenge being determined by the number of jurors needed to complete a full 12-person jury. In that fashion a jury was ultimately formed, and that jury convicted defendant after a trial of robbery and weapons possession.

A different method of jury selection was used in People v Morris. In defendant Morris’ case, a group of prospective jurors was seated in the jury box and questioned by the court and the parties. The court then entertained challenges for cause by both sides. Next, the court instructed the attorneys that they were to use their peremptory challenges as to each juror "one at a time,” the People first, then the defendant. Defense counsel objected, urging that CPL 270.15 (2) required that the prosecution exercise all peremptory challenges as to the jurors in the jury box before the defense was required to exercise any peremptory challenges. The court disagreed with defendant, and voir dire proceeded with the prosecution, then the defense, making peremptory challenges sequentially as to each individual juror. At the end of each round, those jurors who had not been excused were sworn as trial jurors. The sworn trial jurors were then removed from the box, and 14 more were brought in. Two more rounds were conducted in the same manner until a jury of 12 had been selected and sworn. At the conclusion of the trial, defendant was convicted of attempted robbery and menacing.

On appeal both defendants argue that CPL 270.15 requires the People to exercise all peremptory challenges to a particular array of jurors before the defendant maybe required to exercise any peremptory challenges to that array. Under their construction, the section confers on defendants a substantial right — a tactical advantage in conserving the limited number of peremptory challenges to select the most favorable prospective jurors, because the defense will know which jurors of the entire panel will be struck by the prosecution before having to exercise any of its challenges. Defendants contend that the refusals of the trial courts to adopt their interpretation of the statute deprived them of that substantial right and thus, they are entitled to a new trial. The Appellate Division rejected defendants’ arguments, as do we.

The process by which juries are seated, examined, excused for cause and by peremptory challenge, and sworn as trial jurors is prescribed by CPL 270.15. First, the jurors are called into the jury box in groups of "not less than twelve” (CPL 270.15 [1] [a]), and together sworn to answer questions truthfully. The court then "initiate[s] the examination of prospective jurors” as to preliminary matters "aifecting their qualifications to serve as jurors in the action” (CPL 270.15 [1] [b]). Thereafter, the court must permit both parties to question the jurors "individually or collectively regarding their qualifications to serve as jurors” (CPL 270.15 [1] [c]). After questioning is completed, each party

"commencing with the people, may challenge a prospective juror for cause * * *. After both parties have had an opportunity to challenge for cause, the court must permit them to peremptorily challenge any remaining prospective juror * * * and such juror must be excluded from service. The people must exercise their peremptory challenges first and may not, after the defendant has exercised his peremptory challenges, make such a challenge to any remaining prospective juror who is then in the jury box. * * * The prospective jurors who are not excluded from service must retain their place in the jury box and must be immediately sworn as trial jurors.” (CPL 270.15 [2] [emphasis supplied].)

Having sworn any jurors selected in the first round, the court may then either "direct that the persons excluded be replaced in the jury box by an equal number from the panel or, in its discretion, direct that all sworn jurors be removed from the jury box and that the jury box be occupied by such additional number of persons from the panel as the court shall direct” (CPL 270.15[3] [emphasis supplied]).

To resolve the question presented in People v Alston, whether the trial court may require the prosecution and then the defense to exercise peremptory challenges to only the number of jurors needed to make a group of 12 even if more are sitting in the box, we turn first to subdivision (3) of CPL 270.15, which defines how jury selection takes place after the first round. This subdivision expressly permits the trial court in its discretion: (1) to keep sworn jurors in the box at the end of a round and to fill the remaining seats with the number of prospective jurors excused in the previous round; or (2) to remove sworn jurors and fill the box with any number of jurors that it chooses. When a court opts for the first method, the number of prospective jurors placed in the jury box but not sworn, i.e., the number of jurors in the box who are subject to peremptory challenges (People v Harris, 57 NY2d 335, 349 [once a juror is sworn, that juror cannot be challenged peremptorily]), may equal the number of jurors needed to complete the jury. Likewise, under the second method, a trial court has the discretion to seat any number of prospective jurors in the box, and thus can limit the number of jurors against whom the prosecution is required to make its peremptory challenges in a given round to the exact number needed to complete the jury. Thus, whether or not sworn jurors are removed from the box, a trial court can use statutorily permissible means under CPL 270.15 (3) to limit the number of jurors challenged at one time to the number of jurors needed to complete a jury.

Defendant Alston argues, however, that once a court seats more than the number of jurors necessary to fill out a trial jury, it must require the prosecution to exercise all its peremptory challenges to the entire group seated in the box because CPL 270.15 (2) controls the order in which peremptory challenges are to be made in all rounds, and in his view, the language of subdivision (2) strictly prohibits the prosecution from making peremptory challenges as to any juror seated in the box after the defendant has exercised any peremptory challenge. Specifically, he points as controlling here to the use of the plural "challenges” in the clause "[t]he people must exercise their peremptory challenges first,” together with the limitation that after the defense has made its "peremptory challenges” the People may not challenge "any remaining prospective juror who is then in the jury box.” Thus, he argues, in his case — in which the trial court filled the box with more than the number of jurors necessary to complete a jury of 12 — it was error to allow the prosecution to make peremptory challenges to groups of potential jurors in the box rather than requiring that challenges be made to all those potential jurors in the box at one time, because the procedure used allowed the prosecution to challenge jurors who were in the box but not a part of the first group challenged after the defense exercised its challenges.

Defendant Alston’s argument finds no support in the history to subdivision (3). At its inception, subdivision (3) allowed the court to remove sworn jurors from the box only with the consent of the parties. It was amended in 1985 to allow the court in its discretion to empty the jury box of sworn jurors and fill it with more than the number of prospective jurors needed without the consent of the parties (L 1985, ch 516, § 1). The singular purpose of the legislation was to speed up the jury selection process by eliminating repetitious preliminary questions (see, Bill Jacket, 1985, ch 516, Mem of Senator Stafford [Sponsor’s Mem]; Mem of J. Marc Hannibal, Div of Parole; Mem of Linda J. Valenti, Div of Probation & Correctional Alternatives; Mem of Jay Cohen, Div of Criminal Justice Servs; Mem of William Pelgrin, State Commn of Correction; Mem of Donald E. Urell, Div for Youth). There is no indication in the statutory history that this amendment would confer upon a criminal defendant the tactical advantage that would arise from knowing all of the prosecution’s peremptory strikes to the whole array of prospective jurors in the box before the defendant was required to make any.

Similarly, the express language of CPL 270.15 (2) is ambiguous and thus does not have the dispositive effect that defendant Alston and the dissent attribute to it. CPL 270.15 (2) says that "[t]he people must exercise their peremptory challenges first and may not, after the defendant has exercised his peremptory challenges, make such a challenge to any remaining prospective juror who is then in the jury box” (CPL 270.15 [2]). The word "challenges,” from which defendant infers a legislative intent to require collective — not individual — challenges, does not sustain the meaning given it by defendant. The sentence in the statute preceding the one using the plural "challenges” refers to an individual challenge of a single juror, i.e., "[t]he court must then permit [the parties] to peremptorily challenge any remaining prospective juror” (id. [emphasis supplied]), and a statutory rule of construction requires that "[w]ords in the singular number include the plural, and in the plural number include the singular” (General Construction Law § 35). Thus, "challenges” as used here in the phrase "the people must exercise their peremptory challenges first” can easily be read to mean that each of the multiple peremptory "challenges” of the prosecution must come before each of the challenges of the defense.

Moreover, the phrase "the people * * * may not, after the defendant has exercised his peremptory challenges, make such a challenge to any remaining prospective juror who is then in the jury box” may be read — as defendant urges — to require the People to make all their peremptory challenges to all the jurors in the box before the defendant makes any in all rounds. It can, however, also be read — as the People urge — to preclude the prosecution from challenging any juror remaining in the jury box after both sides have had an opportunity to strike the juror and failed to do so.

Defendant’s interpretation of the statute would arbitrarily vest defendants at whose trials the Judges take advantage of what was intended merely as a time saving device — removing sworn jurors and seating more than are needed to complete a trial jury — with a strategic advantage unavailable to other defendants when the court declines to remove sworn jurors or removes them but decides not to fill the entire box. Statutes, should be construed to avoid creating such arbitrary application (McKinney’s Cons Laws of NY, Book 1, Statutes § 147).

Moreover, the history of CPL 270.15 weighs against defendant’s construction. CPL 270.15 "was included in the CPL in 1970 without any substantive change from the old Code of Criminal Procedure, which basically codified traditional common law practice” (Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 270.15, at 414 [1993]; see, Denzer, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 270.15, at 497 [1971]). It was a restructuring and simplification of what had been "a number of prolix provisions in the existing Code” (Commn Staff Notes, reprinted in Proposed NY Criminal Procedure Law § 140.15, at 209 [Thompson Co. 1967]) aimed at "establishing] a uniform procedure for the selection of trial jurors” (id.).

At common law, and under the former Code of Criminal Procedure, varying methods of jury selection were employed. In one, each individual juror was put on the stand, questioned, and subject to both prosecution and defense challenges for cause and then peremptory challenges. If the juror was acceptable to both parties, the juror was immediately sworn, and no longer subject to peremptory challenge by either party (see, e.g., People v Miles, 143 NY 383; People v Carpenter, 102 NY 238, 243). Another method, sometimes called the full box method, also involved individual questioning of jurors. The individual jurors could be excused for cause after questioning, or, if they survived challenges for cause, be seated in the jury box, but not sworn. Once 12 jurors were thus seated in the box, the parties — first the People, then the defense — exercised peremptory challenges (see, e.g, People v McQuade, 110 NY 284). The defendant retained the right to " 'challenge a person who appears as a juror at any time before he is sworn’ ” (People v Fromen, 284 App Div 576, 578, quoting People v Carpenter, 36 Hun 315, 317), and "no juror [was] to be sworn until the jury [was] complete” (id., at 579; but see, People v Mancuso, 26 AD2d 292, mod 22 NY2d 679). An apparent third method of jury selection involved collective examination and challenges to an entire array of jurors (see, e.g., People v Grieco, 266 NY 48, 54).

When these methods were challenged by criminal defendants, they were upheld as fair and valid under the former Code of Criminal Procedure (see, People v Williams, 26 NY2d 62; People v Grieco, 266 NY 48, supra; People v Miles, 143 NY 383, supra; People v McQuade, 110 NY 284, supra); except in two circumstances: (1) when the prosecution was allowed to exercise a peremptory challenge to a juror whom it had already accepted (see, People v Williams, supra; People v McQuade, supra); or (2) when the method announced at the beginning of jury selection was deviated from so as to block use of peremptory challenges that would have been available had the initial method been adhered to (see, People v Carpenter, supra, at 247; People v Mancuso, 26 AD2d 292, mod 22 NY2d 679, supra; People v Fromen, supra).

In People v McQuade (supra), the Court, tracing the history of peremptory challenges, observed that although many of the advantages of the peremptory challenge had historically been the defendant’s, "the requirement * * * that the People shall challenge first, is the only substantial advantage remaining to a defendant” (id., at 294). This advantage confers a benefit on the defendant; it "relieves the defendant from using his challenges in cases where the juror challenged by the prosecution was also unacceptable to the defendant, and thereby preserves his challenges to be used in other cases” (id.). It also protects the defendant by prohibiting the prosecution from "acquiring] information as to what jurors are satisfactory to the defendant, and excluding] them from the panel for that reason” (id., at 295). We have consistently held that the advantage retained by defendants in jury selection, and its resulting benefit and protection to defendants, is satisfied by the juror-by-juror method of exercising peremptory challenges because "in no case and in no manner [is a defendant engaging in juror-by-juror peremptory challenges] compelled to challenge until after the prosecution had fully exhausted its right” (see, People v Miles, 143 NY 383, 386, supra; see also, People v Carpenter, 102 NY 238, 248, supra).

The procedure adopted in CPL 270.15 made several technical changes to the process of jury selection. Most importantly, it eliminated the individual under oath questioning of prospective jurors, requiring instead that prospective jurors be placed in the box and sworn to tell the truth together and collectively questioned by the court. Thus, the new code introduced a uniform procedure of examining jurors "with a view toward speeding up the often prolonged, time-consuming task” (Preiser, Practice Commentaries, op. cit).

The new code also manifestly retained the one persistently protected and enunciated rule of jury selection — that the People make peremptory challenges first, and that they never be permitted to go back and challenge a juror accepted by the defense. Thus, the statute says that "[t]he people must exercise their peremptory challenges first and may not, after the defendant has exercised his peremptory challenges, make such a challenge to any remaining prospective juror who is then in the jury box” (CPL 270.15 [2]). This historical rule was not violated when the parties were required to make peremptory challenges juror by juror (see, People v Miles, 143 NY 383, 386, supra; see also, People v Carpenter, 102 NY 238, 248, supra), and there is absolutely no evidence in the legislative history of CPL 270.15 of an intent to overrule those cases. Nor is there evidence of an intent to expand "the only substantial advantage remaining to a defendant” (People v McQuade, 110 NY 284, 294, supra) by requiring in all cases that the prosecutor exercise all its challenges to an entire array before the defendant exercises any.

Based on the foregoing, we hold that as long as the prosecution exercises its peremptory challenges before the defendant, and in no case challenges a prospective juror "remaining in the jury box” after both parties have had a chance to peremptorily challenge that juror, the requirements of CPL 270.15 are satisfied. This construction dovetails with the flexibility built into CPL 270.15 (1) (c) which allows individual or collective questioning of jurors by the parties, and CPL 270.15 (3), which gives Trial Judges the discretion to fill the jury box with any number of jurors after the first round. It also avoids arbitrarily vesting criminal defendants whose Trial Judges use the efficient procedure of removing sworn jurors from the box and questioning more than are needed to complete the jury in later rounds of jury selection with a tactical advantage unavailable to defendants whose Trial Judges use a more cumbersome method of selecting a jury. At the same time, this construction respects both the language and history of subdivision (2).

It is thus apparent that the method of jury selection employed in People v Alston was permissible. The People exercised their peremptory challenges before the defendant, and in no case challenged a juror they had already accepted. Defendant’s other contention is without merit.

Likewise, the juror-by-juror method of exercising peremptory challenges employed in People v Morris was also permissible. The legislative history to CPL 270.15 (2) manifests no intent to give criminal defendants a tactical advantage in the first round that could be eliminated by the trial court in later rounds at its discretion. Here, the prosecution made all its peremptory challenges to each prospective juror before the defense, and in no case went back and exercised a peremptory challenge to any prospective juror who remained in the box after being accepted by both sides. Defendant Morris thus received all the tactical advantages and procedural protection the Legislature intended to confer upon him. Therefore, although the one-by-one exercise of peremptory challenges directed by the trial court in People v Morris is apparently anomalous and quite clearly counterproductive to the legislative goal of swift and efficient jury selection, we cannot say it is barred by the statute.

Accordingly, the orders of the Appellate Division in People v Morris and People v Alston should be affirmed.

Titone, J.

(dissenting). I dissent.

Far from being "ambiguous” (see, majority opn, at 526), the statutory directive regarding the order in which the parties’ peremptory challenges must be exercised could not be plainer. After the jury box has been filled, the prospective jurors questioned and the challenges for cause made, CPL 270.15 (2) requires that

"[t]he people must exercise their peremptory challenges first and may not, after the defendant has exercised his peremptory challenges, make such a challenge to any remaining prospective juror who is then in the jury box.”

The natural and most logical reading of this provision is the one that defendants Morris and Alston advance. CPL 270.15 (2) requires that the People must exercise all of their peremptory challenges to the panel "first,” before the defense begins exercising its peremptories. Any doubt as to whether the prosecution must finish exercising its peremptories with respect to the entire box before the defense begins is dispelled by the statute’s clear statement that after the defense peremptories have been made the People "may not” challenge "any remaining prospective juror who is then in the jury box.” (Emphasis supplied.)

The foregoing language makes it impossible to construe the statute, as the majority does, to permit a procedure in which the prosecution and defense alternate their challenges. As the italicized language unambiguously states, once the defense exercises its challenge or challenges, the statute precludes the People from challenging any juror then in the box, not just those jurors in the box whom "both sides have had an opportunity” to challenge (majority opn, at 527).

The persuasiveness of the majority’s contrary analysis is not enhanced by its reliance on the General Construction Law § 35 principle that "[w]ords in the singular number include the plural, and in the plural number include the singular.” As applied within the context a natural reading of CPL 270.15 (2), General Construction Law § 35 means no more than that the phrase "peremptory challenges” may be read in the singular to account for the possibility that, in any given round, the People and/or the defendant may choose to exercise only one of their peremptories. Manifestly, a canon of construction such as General Construction Law § 35 should not be invoked in such a way as to create an ambiguity in a statute where none would otherwise exist.

Even assuming that under General Construction Law § 35, the phrase "[t]he people must exercise their peremptory challenges first” may be reasonably read to mean that "each of the [prosecution’s] multiple peremptor[ies] * * * must come before each of the [defense’s] challenges” (majority opn, at 526 [emphasis supplied]), that reading would not explain how the alternating method that the majority envisions can be reconciled with the clear statutory directive that the prosecution cannot peremptorily excuse "any juror who is then in the jury box” after the defense has exercised one or more of its peremptories.

Equally unhelpful is the majority’s extended discussion of CPL 270.15 (3), whose meaning and effect are not at issue here. Indeed, it is not surprising that "[defendant Alston’s argument finds no support in the history” of that subdivision (majority opn, at 525), since CPL 270.15 (3) has nothing to do with the order in which peremptories must be exercised and is not in fact the basis for either of these defendants’ appellate claims. Further, the purpose of the 1985 amendment to that subdivision, which the majority cites, was to accelerate the jury selection process through the specific device of "eliminating] the parties’ right to determine whether sworn jurors may be removed from the jury box while the voir dire continues” (Bill Jacket, L 1985, ch 516, Mem in Support by Senator Stafford; see, Mem of J. M. Hannibal, Div of Parole, July 2, 1985; Mem of J. Cohen, Div of Criminal Justice Servs, July 10, 1985; Mem of W. Pelgrin, State Commn of Correction, July 12, 1985; Mem of D. E. Urell, Div for Youth, July 1, 1985). Manifestly, that legislation has no bearing on the issue presented here concerning the order in which peremptories are to be used.

Ironically, the majority’s holding runs counter to the thrust of the legislative history on which it relies. The consistent modern trend has been to streamline the jury selection process to make it less confusing, cumbersome and time-consuming wherever possible (see, Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 270.15, at 414 [1993]; Denzer, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 270.15, at 497 [1971]). Toward this end, CPL 270.15 eliminates the former procedure under which prospective jurors were questioned one at a time (see, majority opn, at 529). Instead, CPL 270.15 (1) mandates that in the first round a group of 12 prospective jurors must be placed in the jury box, given an oath and questioned together, either collectively or individually. Thus, as the majority itself acknowledges, subdivision (1) evinces the drafters’ intent to adopt the group or "full box” method as the exclusive procedure for examining prospective jurors " 'with a view toward speeding up the often prolonged, time-consuming task’ ” (majority opn, at 529, quoting Preiser, op. cit.). Although CPL 270.15 (3) gives the court the discretion to unilaterally adjust the size of the group in the box, it does not alter the basic premise implicit in CPL 270.15 (1) that the "full box” method is to be used, at least for purposes of juror examination.

Given their goal of "speeding up” the process and their chosen method of implementing it, it would have made little sense for the CPL’s drafters to abandon the "full box” method in favor of the slower and more cumbersome juror-by-juror approach for purposes of the challenge part of the jury selection process. Certainly, it makes little sense for this Court, which is unanimous in its commitment to eradicating unnecessary inefficiencies in jury selection, to stretch the language of CPL 270.15 (2) in order to authorize a less efficient method for challenging jurors than its plain language and its sibling subdivision suggest.

In any event, even without regard to the underlying policy considerations, the controlling factor here — the language of the statute — leaves room for no other conclusion than that the trial courts in these two cases erred when they permitted the People to exercise peremptories with respect to prospective jurors remaining in the box after the defense had taken its turn. Because of this error, which adversely affected these defendants, I conclude that the orders of the courts below should be reversed.

Chief Judge Kaye and Judges Simons, Bellacosa and Smith concur with Judge Levine; Judge Titone dissents and votes to reverse in a separate opinion in which Judge Ciparick concurs.

In each case: Order affirmed.

       Significantly, this view of CPL 270.15 (2) is one that has been utilized by the panel that was recently commissioned to review jury practices in the State (The Jury Project, Report to the Chief Judge of State of New York, at 46 [1994]), as well as by the Committee on the Publications of the Association of Justices of the Supreme Court of the State of New York (Bench Book for Trial Judges — New York [1993] § 73-22; accord, Pitler, New York Criminal Practice Under the CPL, at 630 [1972]).


author: Titone, J.

text:
    [670 NE2d 434, 647 NYS2d 150]
    The People of the State of New York, Respondent, v James Quackenbush, Appellant.
    Argued June 6, 1996;
    decided July 9, 1996

      POINTS OF COUNSEL

      John P. Courtney, Amagansett, for appellant.
    I. The impounding of defendant’s vehicle violated the rights guaranteed him under the 4th Amendment of the United States Constitution and under article I, § 12 of the New York State Constitution. (People v Galak, 81 NY2d 463; New York v Belton, 453 US 454; California v Carney, 471 US 386; People v Blasich, 73 NY2d 673; People v Yancy, 86 NY2d 239; People v Belton, 55 NY2d 49; South Dakota v Opperman, 428 US 364; People v Class, 63 NY2d 491, 67 NY2d 431.) II. The warrantless search of defendant’s vehicle two days after it had been impounded by the police violated the rights guaranteed him . under the 4th Amendment of the United States Constitution and under article I, § 12 of the New York State Constitution. (People v Milerson, 51 NY2d 919; People v Ready, 61 NY2d 790; People v Drayton, 172 AD2d 849; People v Allen, 124 AD2d 1046; Michigan v Tyler, 436 US 499; Colonnade Corp. v United States, 397 US 72; United States v Biswell, 406 US 311; People v Burger, 67 NY2d 338; Colorado v Bertine, 479 US 367; People v Galak, 80 NY2d 715.)

      James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Mary-Ellen Harkin of counsel), for respondent.
    I. The impoundment and performance of a safety inspection on respondent’s vehicle was properly conducted pursuant to the mandates of Vehicle and Traffic Law § 603. (People v Keta, 79 NY2d 474, 185 AD2d 994; South Dakota v Opperman, 428 US 364; People v Scott, 63 NY2d 518; South Dakota v Neville, 459 US 553.) II. The police-directed examination of appellant’s brakes was clearly proper and not violative of the dictates of either State or Federal constitutional provisions, protecting the People from unreasonable searches and seizures; as there exists no reasonable expectation of privacy in the brakes of an automobile, any inspection thereof does not constitute a "search”. (Maryland v Macon, 472 US 463; California v Ciraola, 476 US 207; Rawlings v Kentucky, 448 US 98; Katz v United States, 389 US 347; People v Whitfield, 81 NY2d 904; Oliver v United States, 466 US 170; People v Scott, 63 NY2d 518; United States v Martinez-Fuerte, 428 US 543; People v Belton, 55 NY2d 49; People v Class, 63 NY2d 491, 475 US 106, 67 NY2d 431.) III. Appellant consented to have his vehicle impounded and a safety inspection performed. (People v Gonzalez, 39 NY2d 122; People v Springer, 92 AD2d 209; Schneckloth v Bustamonte, 412 US 218; People v Kuhn, 33 NY2d 203; People

      v Yukl, 25 NY2d 585; People v Day, 150 AD2d 595; People v Hall, 142 AD2d 735; People v Anderson, 42 NY2d 35; People v Rodney P., 21 NY2d 1; People v Torres, 97 AD2d 802.)
   OPINION OF THE COURT

Titone, J.

Defendant has been charged with the offense of operating a motor vehicle with inadequate brakes (Vehicle and Traffic Law § 375 [1]). He seeks to suppress evidence of the defective condition of his brakes which was obtained by police when his vehicle was impounded and inspected after being involved in a fatal accident. Defendant claims that the police lacked the authority to impound his vehicle and that the warrantless inspection of his brakes that yielded evidence of their defective condition constituted an illegal search and seizure in violation of the 4th and 14th Amendments to the United States Constitution and article I, § 12 of the New York State Constitution. We conclude that the police possessed the authority to impound the vehicle in order to comply with the investigatory and reporting duties imposed by Vehicle and Traffic Law § 603. We also hold that the warrantless inspection, which was limited to the vehicle’s safety equipment that is normally subject to extensive government regulation and which was related in scope to the duty to investigate the facts surrounding an accident involving a death, did not offend the constitutional prohibitions against unreasonable searches and seizures.

I.

Defendant’s vehicle was involved in a fatal accident with a bicyclist on August 23, 1993. At the accident scene, defendant was informed that the police were impounding the vehicle for a safety inspection. A mechanic employed by the Town of East Hampton inspected the vehicle on August 25, 1995 and completed a standard form Motor Vehicle Examination Report, in which he was asked to report, in a sworn statement, the condition of the following equipment on defendant’s vehicle: the horn, windshield, wipers, brake pedal, headlights, tires, brakes, and steering. Significantly, the mechanic stated that he found "metal to metal contact” on the right rear brakes. Defendant was charged with the misdemeanor of operating a motor vehicle with inadequate brakes in violation of Vehicle and Traffic Law § 375 (1) based on the results of that safety inspection.

Defendant moved to suppress the evidence on the ground that the Vehicle and Traffic Law does not explicitly authorize the police to impound a vehicle to conduct a safety inspection after an accident involving personal injury. Defendant also claimed that the inspection of the vehicle without a warrant, probable cause or exigent circumstances constituted an illegal search in violation of the 4th and 14th Amendments to the United States Constitution and of article I, § 12 of the New York State Constitution.

At a Mapp hearing, Detective Reich testified that the damage to the vehicle and defendant’s admission that he had collided with the bicycle led him to conclude that defendant’s vehicle was the instrumentality that caused the victim’s death and that the car should be impounded and held for an inspection to enable the police to comply with their accident investigating duties and reporting obligations dictated by Vehicle and Traffic Law § 603. Detective Reich testified that the impoundment was also necessary to avoid the potential destruction of evidence, given that defendant was known to be a mechanic, and that police department policy required impoundment in all automobile accidents that resulted in serious physical injury or death.

Justice Court suppressed the evidence obtained as a result of the safety inspection. The court held that evidence obtained pursuant to the investigation and reporting responsibility mandated by Vehicle and Traffic Law § 603 — an "administrative inspection” — could not be utilized for purposes of a criminal prosecution. The court also ruled that the police failure to fully inform the defendant of his right to withhold his consent to the inspection effectively eradicated an otherwise valid consent and that the "exigent circumstances” exception to the warrant requirement could not be asserted after the impoundment of the vehicle. Finally, the court held that the car could not be seized based on a threshold probable cause showing because the police did not have reasonable cause to believe that defendant had committed a crime at the time of the accident.

On the People’s appeal, a divided Appellate Term reversed the order granting the motion to suppress and denied the motian. The court ruled that the impoundment and inspection of the vehicle was properly performed pursuant to the mandates of Vehicle and Traffic Law § 603, that the examination of the brakes was not a "search” within the meaning of the 4th Amendment, and that defendant had consented to the impoundment and inspection of his vehicle. The court further concluded that defendant had not met his burden of proving that he had a legitimate expectation of privacy in the vehicle, especially where a death had resulted. Under such circumstances, the majority concluded that "it could be readily understood why a 'safety inspection’ looking for anything that might constitute a malfunction on any part of the pickup truck was mandatory * * * to avoid the possibility of a repetition thereof.”

One Justice dissented on the ground that the safety inspection and examination of defendant’s brakes was a "search” of a "hidden area” of a motor vehicle in which defendant enjoyed a reasonable expectation of privacy under the New York State Constitution. Thus, the dissent concluded that the warrantless search of the brakes was unjustified. A Judge of this Court granted defendant’s application for leave to appeal, and we now affirm.

II.

The initial question for this Court is whether the police had the authority to impound defendant’s vehicle for a safety inspection after it was involved in the fatal accident. We conclude that Vehicle and Traffic Law § 603 implicitly grants the police the authority to impound vehicles for a safety inspection in order to fulfill their investigatory and reporting duties under the statute.

Vehicle and Traffic Law § 603 requires that whenever an accident resulting in injury to a person has been reported to the police within five days of its occurrence, the police "shall immediately investigate the facts, or cause the same to be investigated, and report the matter to the commissioner [of Motor Vehicles] forthwith” (Vehicle and Traffic Law § 603 [1]) on a form prepared by the Commissioner (id., § 604). The information transmitted from the police to the Commissioner must include, among other data, a description of the accident, the damage to the vehicles and their undercarriages, and a report on whether the vehicle operators were ticketed, arrested or charged with any violations (see, Department of Motor Vehicles Form MV-104A). The officer’s determination of whether the vehicle was suffering from a safety defect at the time of the accident has obvious relevance in preparing the accident description and in reporting whether violations were issued to drivers of vehicles involved. The police reports are designed to serve several administrative functions, such as aiding the Commissioner of Motor Vehicles in promulgating regulations to enhance the safety of our roads (see, L 1973, ch 634, Bill Jacket, Mem of Chairman of Committee on Transportation, dated May 27, 1973), and assisting in the prompt resolution of personal injury and property damage claims against automobile owners and insurers arising from automobile collisions (see, Bill Jacket, L 1969, ch 517).

Section 603 does not expressly authorize the police to remove the vehicle from the accident scene and impound it in order to complete the requisite investigation and report. However, that legislation "impose[s] a duty of investigation” (Bill Jacket, L 1969, ch 517, Mem of Motor Vehicle Commissioner Tofany to Governor’s Counsel, dated May 5, 1969), and in turn, a proper investigation may require an inspection of the mechanical areas of the vehicle. As a practical matter, an inspection of a vehicle to determine whether any defects in its safety equipment constituted a contributing cause of the accident cannot reasonably be undertaken on the roadway where licensed mechanics and proper facilities and equipment are unavailable. Thus, we conclude that section 603 implicitly grants the police the authority to impound a vehicle in furtherance of their administrative mandate to fully investigate the cause of a fatal automobile accident, as well as to ensure the safety of those conducting the accident investigation (see, South Dakota v Opperman, 428 US 364, 368-369).

Having concluded that the police had implicit authority to impound the vehicle for a safety inspection, we turn our attention to a determination of whether the impoundment and inspection procedure, undertaken without the issuance of a warrant, violated the constitutional proscriptions against unreasonable searches and seizures (see, US Const 4th Amend; NY Const, art I, § 12). We agree with defendant that any exigency normally associated with the mobility of a vehicle (see, e.g., People v Belton, 55 NY2d 49, 54) was removed by its impoundment and thus could not justify the warrantless intrusion. Nonetheless, we conclude that the warrantless inspection was justified by other factors providing assurances that the initiation and scope of the search were reasonable.

The 4th Amendment of the United States Constitution and article I, § 12 of our State Constitution protect individuals " 'from unreasonable government intrusions into their legitimate expectations of privacy’ ” (People v Class, 63 NY2d 491, 494, quoting United States v Chadwick, 433 US 1, 7). In determining whether a seizure and search is unreasonable, we must be satisfied that the governmental intrusion "was justified at its inception” and "was reasonably related in scope to the circumstances which justified the interference in the first place” (Terry v Ohio, 392 US 1, 20).

The requirement that the police, "whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure” (Terry v Ohio, 392 US 1, 20, supra) serves to ensure that a determination of the reasonableness of the search results from a neutral balancing of the need for the intrusion on the one hand and the severity of the invasion on an individual’s legitimate expectation of privacy on the other (id., at 19). The warrant requirement, traditionally applied "to searches undertaken to procure evidence of criminality” (People v Scott, 79 NY2d 474, 493) also extends to searches of private property undertaken by State agents in the furtherance of administrative or regulatory schemes (id.; see also, Michigan v Tyler, 436 US 499, 505).

Warrantless administrative searches may be upheld in the limited category of cases where the activity or premises sought to be inspected is subject to a long tradition of pervasive government regulation and the regulatory statute authorizing the search prescribes specific rules to govern the manner in which the search is conducted (People v Scott, 79 NY2d 474, 499, supra). As a practical matter, a person involved in a closely regulated business or activity generally has a diminished expectation of privacy in the conduct of that business because of the degree of governmental regulation. Because of the minimal expectation of privacy in a closely regulated business, warrantless searches of such conduct are considered "more necessary and less intrusive than such inspections would be if conducted on less heavily regulated businesses” (2 Ringel, Searches & Seizures, Arrests and Confessions, at 14-20 [2d ed]).

"Pervasive regulation” will only be found where the operations of an industry or activity are regulated by detailed governmental standards (People v Scott, 79 NY2d, at 499, supra). The requisite close regulation will not be found where governmental regulations impose "relatively nonintrusive obligations” on businesses or activities, such as the requirements that participants pay fees, register or report to governmental agencies (id.).

The additional requirement that the administrative search of a pervasively regulated activity be governed by specific rules designed "to guarantee the 'certainty and regularity of * * * application’ ” (id., at 499) serves to "provide either a meaningful limitation on the otherwise unlimited discretion the statute affords or a satisfactory means to minimize the risk of arbitrary and/or abusive enforcement” (id., at 500). Together, these dual components of the "pervasively regulated business” exception to the administrative warrant requirement constitute "a constitutionally adequate substitute for a warrant” (id., at 502) because they ensure that there is a compelling need for the governmental intrusion and that the search is limited in scope to that necessary to meet the interest that legitimized the search in the first place (Terry v Ohio, 392 US, at 19, supra; see also, Michigan v Tyler, 436 US, at 507, supra).

III.

The justifications for dispensing with the warrant requirements in closely regulated businesses provide a useful analytical framework for our resolution of this case. The inspection scheme at issue heré, designed to further the compelling safety interest of the government in regulating the use of motor vehicles on the State’s public highways (People v Ingle, 36 NY2d 413, 419), provides similar assurances that the inspection will be reasonable. The mechanical areas of automobiles are subject to extensive and long-standing safety regulation analogous to that which has served to except pervasively regulated businesses from the administrative warrant requirement. New York drivers must subject their vehicles to annual inspections of their safety equipment by licensed mechanics before being granted the privilege of driving on our roadways (see, Vehicle and Traffic Law § 301; 15 NYCRR part 79).

Because of this extensive regulation of vehicular safety equipment, there is only a diminished expectation of privacy in the mechanical areas of a vehicle. When a fatal accident involving an automobile has occurred, that minimal privacy expectation necessarily yields to the State’s legitimate public safety interests in determining all of the circumstances surrounding the death and the cause of the accident (People v Ingle, 36 NY2d 413, supra) and in ensuring that the vehicle is not returned to the roadway in an unsafe condition. As one jurisdiction has noted in reaching a similar conclusion, "[s]ociety places great importance on learning all the circumstances of any motor vehicle accident resulting in death”, and would not "recognize as objectively reasonable an expectation of privacy in the braking mechanism of a motor vehicle that had come into police possession following the death of a motorist on the highway” (Commonwealth v Mamacos, 409 Mass 635, 640, 568 NE2d 1139, 1142).

The rules governing the inspection at issue here also comport with 4th Amendment principles because they remove the possibility that the inspection will be undertaken in an arbitrary manner. The safety inspection authorized by Vehicle and Traffic Law § 603 is only conducted in response to a particular event — an automobile accident resulting in personal injury or death — that calls into question the safe mechanical functioning of the vehicle. Uncontroverted hearing testimony also established that it is the standard policy of the East Hampton Police Department to uniformly conduct this mechanical inspection on every vehicle involved in an accident resulting in either serious physical injury or death. Thus, vehicles are not randomly or arbitrarily selected from the flow of traffic for enforcement of the inspection scheme at issue here (cf., People v Ingle, 36 NY2d 413, supra; People v Miller, 52 AD2d 425, 431, affd 43 NY2d 789).

The scope of the intrusion was also strictly tailored to a determination of whether any safety violations existing on the vehicle at the time of the accident could have contributed to its cause — the initial justification for the intrusion. This safety inspection, which included an examination of the brakes, wipers, windshield, and headlights was less extensive than that required to be conducted annually on all cars in this State (see, Vehicle and Traffic Law § 301; 15 NYCRR 79.3). The police and licensed mechanics are accorded no discretion in selecting the areas subject to examination and the mechanics must examine the vehicle according to standard protocol. The inspection is limited to mechanical parts of the vehicle and does not extend to the private areas of the car where personal effects would be expected to be contained and to which "different and more stringent rules apply” (People v Ingle, 36 NY2d 413, 421, supra; see also, People v Class, 63 NY2d 491, 495, supra).

The fact that the length of the intrusion here — a two-day impoundment — is greater than the temporary detainment of automobiles normally associated with a stop for a routine traffic check (see, Vehicle and Traffic Law § 390; People v Ingle, 36 NY2d 413, supra) does not change the result. The immediate and more extended seizure of the vehicle without a warrant in this case was justified to ensure that the police report to the Commissioner accurately reflected the condition of the safety equipment on the vehicle at the time of the accident. Indeed, the officers at the scene would have been remiss in their duties had they prematurely released the vehicle to defendant, an auto mechanic, prior to a full determination of the cause of the accident. The impoundment served to secure the accident condition of the vehicle from changes due to subsequent road use or even intentional tampering. Given that the police must employ licensed mechanics to conduct the safety inspection on the vehicle, the two-day delay in conducting the inspection— which for safety and reliability reasons could not be conducted at the scene — was not unreasonable as a matter of law.

On these facts, we are satisfied that the inspection of the braking mechanism on defendant’s vehicle after its involvement in a fatal collision did not constitute an unreasonable search in the constitutional sense. Given our conclusion that this search was reasonable under the 4th Amendment, the evidence obtained through that inspection was properly held admissible by Appellate Term in this criminal prosecution (People v Scott, 79 NY2d, at 502, n 5, supra).

Accordingly, the order of Appellate Term should be affirmed.

Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed.

      . Defendant was not charged with any oifense in connection with the bicyclist’s death.

      . The following safety violations are delineated in the Vehicle and Traffic Law: bad brakes (Vehicle and Traffic Law § 375 [1]); unsafe tires (§ 375 [35] [c]); cracked or obstructed windshield (§ 375 [30]); inadequate muffler (§ 375 [31]) and improper headlights (§ 375 [2]).

      . A 1993 statistical report prepared by the Department of Motor Vehicles contained in the respondent’s appendix indicates that information on the "apparent accident contributing factors” is compiled solely from State-wide police reports submitted to the Commissioner and that "defective brakes” is one among a number of mechanical defects on a vehicle that may be listed on a police accident report as a contributing cause of the accident.

      . Although constitutional protections against unreasonable government intrusions extend to searches of automobiles and seizures of their contents (People v Class, supra; Terry v Ohio, supra), there is generally "only a diminished expectation of privacy in an automobile” (People v Scott, 63 NY2d 518, 525, citing United States v Martinez-Fuerte, 428 US 543, 561). Drawing on precedent of the United States Supreme Court, this Court has explained that the reduced expectation of privacy in a vehicle is occasioned by the facts that "automobiles 'operate on public streets; * * * are serviced in public places; * * * their interiors are highly visible and they are subject to extensive regulation and inspection’ ” (People v Belton, 55 NY2d 49, 53, quoting Rakas v Illinois, 439 US 128, 154).

      . In People v Ingle (36 NY2d 413, supra), this Court discussed the reasonableness of "routine safety checks” undertaken by the State Police pursuant to Vehicle and Traffic Law § 390 in which the police temporarily detained vehicles to determine whether they were "being operated in compliance with the Vehicle and Traffic Law” (id., at 415). The Court explained that the reasonableness of the stop must be measured by a balancing of the State’s "vital and compelling interest in safety on the public highways” against the motorist’s "general right to be free from arbitrary State intrusion on his freedom of movement even in an automobile” (id., at 419). Noting that such stops are "limited seizure[s] within the meaning of constitutional limitations” (id., at 419), the Court explained that the police must have "some valid reason, however slight” to single out a particular vehicle for an inspection to determine whether any equipment violations are present” (id., at 416). While the Court determined that random traffic checks on the highways are also permissible, the Court concluded that those stops must be undertaken by "some system or uniform procedure, and not gratuitously or by individually discriminatory selection” (id.) to be reasonable in the constitutional sense.