author: Simons, J. Kaye, J.

text:
    The People of the State of New York, Respondent, v Steven Catalanotte, Also Known as Steven Catalonotte, Appellant.
    Argued October 20, 1988;
    decided December 15, 1988

      POINTS OF COUNSEL

      Joseph R. Giaramita, Jr., for appellant.
    I. Appellant should not have been sentenced as a predicate felony offender because his first conviction was obtained in violation of his constitutional rights pursuant to CPL 400.21 (7) (b). (People v Love, 71 NY2d 711; People v Jones, 47 NY2d 409, 444 US 946; People v Cuevas, 50 NY2d 1022; People v Gonzalez, 74 AD2d 928; People v Warren O., 86 AD2d 895; People v Brown, 79 AD2d 659; People v Doty, 73 AD2d 802; People v McNamee, 71 AD2d 559; People v Cousart, 74 AD2d 877.) II. Since CPL 400.21 (7) (b) speaks to the constitutionality of a conviction at the time the People seek enhancement of a sentence as a predicate felon, then appellant’s first conviction should not be used because it is unconstitutional under existing law. III. The principle of collateral estoppel is inapplicable since the conviction being challenged in this CPL 400.21 (7) (b) application is unconstitutional. (People v Sailor, 65 NY2d 224.) IV. To require a "retroactively effective change in the law” standard in a CPL 400.21 (7) (b) application results in converting it into a CPL 440.10 (1) (a); (2) (a) proceeding, which was not intended by the Legislature. (United States v Johnson, 457 US 537; People v Jones, 47 NY2d 409.)

      Elizabeth Holtzman, District Attorney (Darrell B. Fields, Barbara D. Underwood and Shulamit Rosenblum of counsel), for respondent.
    Defendant was properly adjudicated a second felony offender. (People v Jones, 47 NY2d 409, 444 US 946; Griffith v Kentucky, 479 US 314; United States v Johnson, 457 US 537; People v Cuevas, 50 NY2d 1022; People v Pepper, 53 NY2d 213; People v Morales, 37 NY2d 262; Desist v United States, 394 US 244; Williams v United States, 401 US 646; Solem v Stumes, 465 US 638; Brown v Louisiana, 447 US 323.)
   OPINION OF THE COURT

Simons, J.

The question presented on this appeal is whether defendant’s sentence as a second felony offender may be predicated upon a 1971 conviction which satisfied constitutional standards when obtained and has survived postconviction collateral attack, but was obtained by means which, if the indictment were tried now, would violate defendant’s rights under the Sixth Amendment of the United States Constitution as presently applied by the courts. Defendant asserts that the prior conviction may not be used to enhance his sentence because in obtaining it the trial court followed a practice of closing the courtroom which this court subsequently recognized as unconstitutional. We disagree: for purposes of determining whether a prior conviction "was unconstitutionally obtained” (CPL 400.21 [7] [b]) — and thus may not be counted for predicate felony purposes — the proper inquiry is to determine whether the conviction was obtained in violation of the defendant’s rights as defined by the law at the time of the conviction or by present law which is properly applied to it under recognized principles of retroactivity.

On March 5, 1971 defendant, then a New York City police officer, sold 50 packets of heroin to an undercover police officer. He was arrested six days later, possessing heroin and methadone, and subsequently convicted of various drug-related felonies arising from the two incidents. During trial, the People called as a witness the undercover officer who made the "buy” from defendant. Before the officer testified, the prosecutor requested that the court take judicial notice of the hazards to which testifying undercover officers are generally subject and requested that spectators be excluded. The trial court summarily closed the courtroom to the public before the officer testified. Defendant appealed his conviction, contending that it had been obtained in violation of his constitutional right to a public trial. His claim was rejected by both the Appellate Division (41 AD2d 968) and this court (36 NY2d 192).

Four years later we declared for the first time that the summary closing of a courtroom simply because a witness is an undercover police officer constitutes reversible error (People v Jones, 47 NY2d 409, cert denied 444 US 946). Deviation from the rule is justified, we said, only when preceded by an inquiry "careful enough to assure the court that defendant’s right to a public trial is not being sacrificed for less than compelling reasons.” (Id., at 414-415.) There had been no such inquiry in defendant’s case.

In 1986, defendant was convicted in this case on his guilty plea of attempted robbery in the second degree in satisfaction of an indictment charging him with several crimes for his participation in an armed robbery and subsequent gun battle with the police. He was sentenced as a second felony offender over his objection that the 1971 conviction, used as the predicate, was unconstitutionally obtained under People v Jones (47 NY2d 409, supra). After sentencing, defendant moved pursuant to CPL 440.10 (2) (a) to vacate the 1971 conviction as unconstitutional, urging that the Jones rule should be applied retroactively. The court denied the petition and defendant did not appeal that ruling.

On this appeal, defendant pursues a different route to avoid being sentenced as a predicate felon. He now concedes that Jones should not be applied retroactively to vacate the 1971 conviction. Instead, he argues that the Jones rule should only be applied to prevent the imposition of enhanced punishment for the 1986 conviction. The Appellate Division affirmed the judgment of conviction but, analyzing defendant’s claim solely as whether the Jones rule should be applied retroactively and required vacatur of the 1971 conviction, did not address defendant’s primary argument.

A conviction obtained in violation of one’s constitutional rights may not be used to enhance punishment for a later offense (Burgett v Texas, 389 US 109, 115). CPL 400.21 (7) (b) implements that principle. It provides in relevant part: "A previous conviction in this or any other jurisdiction which was obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States must not be counted in determining whether the defendant has been subjected to a predicate felony conviction. The defendant may, at any time during the course of the hearing hereunder controvert an allegation with respect to such conviction in the statement on the grounds that the conviction was unconstitutionally obtained” (emphasis added).

The clear import of the phrases "was obtained” and "was unconstitutionally obtained” indicate that the validity of the conviction shall be determined as of the time it was entered. An unconstitutional conviction is, by definition, a conviction which was obtained in violation of the defendant’s constitutional rights, i.e., his rights as defined by the law existing at the time the conviction was obtained or by subsequent law applicable to the judgment under principles of retroactivity. The conviction does not become unconstitutional merely because the law has changed subsequent to the defendant’s direct appeal of that conviction (Linkletter v Walker, 381 US 618, 628-629; see also, United States v Johnson, 457 US 537, 542). Since the predicate felony statute operates upon the prior conviction rather than the prior practice, accepted principles of retroactivity must be applied to determine whether a conviction "was unconstitutionally obtained” and thus may not be counted when the People seek to impose an enhanced sentence. Under those rules, a defendant is entitled to the benefit of any change in the law if the change occurs before his conviction becomes final (see, Griffith v Kentucky, 479 US 314, 328) or, if the right at stake is such that the law has engrafted an exception to the traditional rule to permit collateral attack on judgments of conviction after they have become final (see, e.g., Robinson v Neil, 409 US 505 [double jeopardy]; Ashe v Swenson, 397 US 436 [same]; Arsenault v Massachusetts, 393 US 5 [right to counsel at a preliminary hearing]; McConnell v Rhay, 393 US 2 [right to counsel at sentencing]; Roberts v Russell, 392 US 293 [right to confrontation]; Jackson v Denno, 378 US 368 [right to pretrial determination of the voluntariness of a confession]).

Defendant’s 1971 conviction, which serves as the predicate for his present sentence, meets neither of these criteria. It was not "obtained in violation of the rights of * * * defendant” because the closure of the courtroom during his trial complied with the existing legal requirements for a public trial (see, People v Hinton, 31 NY2d 71, cert denied 410 US 911; People v Hagan, 24 NY2d 395, cert denied sub nom. Hayer v New York, 396 US 886; People v Jelke, 308 NY 56). We so held on defendant’s direct appeal (People v Catalanotte, 36 NY2d 192, affg 41 AD2d 968). That we subsequently declared a similar procedure unconstitutional in People v Jones (47 NY2d 409, supra) does not, as defendant concedes, make the Jones rule retroactive to prior convictions that have survived direct appeal, nor does it, in view of the plain language of the statute, require a finding that the predicate conviction "was unconstitutionally obtained”.

The logic of such an interpretation is manifest when one considers that the proper meaning to be given to broadly stated constitutional commands, such as due process of law and right to a public trial, changes constantly. To apply such changes retroactively when the court has not declared them retroactive, may open to question hundreds of convictions and enhanced sentences based upon them (see, e.g., Batson v Kentucky, 476 US 79 [racial bias in jury selection]; Payton v New York, 445 US 573. [warrantless felony arrest in home]; Sandstrom v Montana, 442 US 510 [improper jury charge]; Griffin v California, 380 US 609 [comment by prosecutor or Judge upon defendant’s failure to testify]). The dissent assumes such convictions and others like them were unconstitutionally obtained even though they concededly cannot be vacated in postconviction proceedings. It holds that no matter how drastically the law has been modified between the time of the first conviction and the second, any change renders the first conviction unconstitutional for the purpose of enhanced sentencing. Its rule would invalidate the conviction for such purpose even if the infirmity was not challenged at the time of the first conviction because under current law, if the predicate conviction "was unconstitutionally obtained”, the defendant does not have to raise the constitutional deprivation on direct appeal from the first conviction (see, People v Harris, 61 NY2d 9, 16; People v Wright, 119 AD2d 973). A defendant would not be required to anticipate a future change in the law as did the defendant in this case. For example, and using the illustrations cited above, under the dissent’s view, past convictions obtained by a jury selected along racial lines would be open to question, at least for enhanced sentencing purposes, even though constitutional rules in effect at the time were followed by the trial court (compare, Swain v Alabama, 380 US 202; and People v McCray, 57 NY2d 542, with Batson v Kentucky, 476 US 79, supra). Similarly, convictions obtained through the use of confessions or real evidence properly obtained under existing law, but now open to question in view of Payton (supra), and convictions obtained after trials in which Sandstrom charges were given would be nullified for enhanced sentencing purposes, regardless of whether defendant objected at trial. The statute does not require this result, nothing indicates the Legislature intended it and there are no policy reasons for ordering it.

Finally, we note that People v Love (71 NY2d 711), relied upon by the defendant and the dissent, is clearly distinguishable. In that case the defendant’s prior conviction was vacated because it was obtained in violation of his constitutional rights under the law that existed at the time of the conviction. Here, defendant’s constitutional rights, as then defined, were respected in full.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be affirmed.

Kaye, J.

(dissenting). CPL 400.21 (7) (b) declares that a previous conviction obtained in violation of a defendant’s Federal constitutional rights "must not be counted” in determining second felony offender status. To that end, the statute gives a defendant the right to first challenge the unconstitutionality of a prior conviction at any time during the course of the second felony hearing. The statute bespeaks a legislative intention that — while a prior unconstitutional conviction may not be undone, indeed a defendant may already have served a lengthy term of imprisonment — that flawed conviction should not, in fairness, be used anew as the basis for another period of incarceration. (For those found to be second felony offenders, the minimum and maximum sentences are materially increased. [See, Penal Law § 70.06.])

This case fits the statute in letter and spirit. In 1971, defendant was convicted of various drug offenses under circumstances the majority concedes would compel reversal as a matter of Federal constitutional law were he tried today. Despite his diligent efforts to litigate the constitutional issue, the courts recognized the merit of his claim only four years later in an unrelated case, after defendant had exhausted his avenues of appeal. Now the People seek to make new use of the 1971 conviction to add to defendant’s term of imprisonment for a 1986 robbery conviction. To my mind, CPL 400.21 (7) (b) proscribes this use of the earlier conviction, and I therefore respectfully dissent.

In concluding that defendant may be subjected to increased imprisonment based on the 1971 conviction, the majority reads restrictions into the plain language of the statute that are simply not there.

The court holds that the statute’s use of the past tense— prohibiting use of a conviction that "was obtained” or "was unconstitutionally obtained” — signals a legislative direction that the validity of the conviction is to be determined "as of the time it was entered.” (Majority opn, at 644, 645.) In that the statute deals with past convictions, use of the past tense is inevitable. Nothing in the statute limits its application to convictions that were obtained in violation of defendant’s rights as courts were willing to recognize them at the moment of conviction, nor does the statute call for application of retroactivity principles. Had the Legislature intended to so confine the statute, it could have and undoubtedly would have said so.

The court’s analysis, like that of the Appellate Division, proceeds on the premise that the issue is solely a question of retroactivity. But it should be immediately apparent that this case is strikingly different from the retroactivity cases (see, majority opn, at 645). Defendant is not seeking to apply People v Jones (47 NY2d 409) retroactively to nullify his 1971 conviction. Vacatur of that conviction was denied in his separate postsentencing proceeding pursuant to CPL 440.10. He took no appeal from that decision, served his sentence, and concedes that the constitutional deprivation cannot be remedied retroactively by overturning the conviction. His point is different: he seeks only to avoid new use of the 1971 conviction — that would be unconstitutional now — to enlarge the term of imprisonment that will be imposed on him now. None of the cited cases deal with this situation. And none of them deal with a statute that on its face provides that the constitutionality of prior convictions — final judgments for all other purposes — can be challenged today, even when the constitutional point had never been raised during the prior litigation. Thus, the cited retroactivity cases are not precedents for the court’s decision under CPL 400.21 (7) (b).

Nor are the retroactivity cases — even if applicable — in theory dispositive of the issues before us. While the Supreme Court’s jurisprudence on retroactivity has evolved considerably over time, it is plain that the doctrine is founded on nothing more than fairness and practicality (see generally, Griffith v Kentucky, 479 US 314; Linkletter v Walker, 381 US 618). The decision to give a newly announced constitutional rule only prospective effect is distinctly not founded on any perception that previous failures were not also deprivations of a Federal constitutional right. If the law in effect at the time of a conviction were dispositive on constitutionality, as suggested by the majority (majority opn, at 645), there would be no reason to apply a newly announced decision to convictions in other cases pending on appeal. Thus, whether or not People v Jones (supra) is retroactive, it is true today that defendant’s 1971 conviction was actually obtained in violation of his rights under the Federal Constitution, and the case falls squarely within the prohibition of CPL 400.21 (7) (b) against renewed use of such convictions.

Accordingly, our recent decision in People v Love (71 NY2d 711) is not "clearly distinguishable”, as the majority claims (majority opn, at 647). While it is true that the constitutional violation suffered by the defendant in that case was a denial of the right to counsel — a violation recognized even under the law in effect at the time of the conviction — that happenstance was not critical to our decision. Rather, the decision was based on our interpretation of CPL 400.21 (7) (b) as intending a broad mandate that a "person convicted of a crime should not be treated as a repeat offender * * * simply because in the last 10 years he was unconstitutionally convicted and deprived of his liberty.” (Id., at 717.)

It is clear that, in engrafting the new restrictions onto CPL 400.21 (7) (b), the court’s real concern is simply the perceived practical impact of enforcing the statute as written. Without the restrictions now imposed by the court, the majority fears that "hundreds of convictions and enhanced sentences based upon them” may be "open to question” (majority opn, at 646). Such a concern begs the question of what the Legislature intended; if the costs of the statutory prohibition are high, that is a determination for the Legislature to make, not the court. But it is also a misplaced concern. Since CPL 400.21 (7) (b) applies only to second felony offender determinations, a proper and fair reading of the statute does not open any convictions to question. And since the statute itself provides that claims of unconstitutionality with respect to prior convictions are waived if not asserted at the predicate felony hearing, it is equally clear that enhanced sentences would not now be generally thrown open to question.

The vast majority of convictions are obtained under circumstances that are accepted as constitutional both at the time of conviction and at subsequent predicate felony proceedings. In those instances where a defendant is able to overcome the considerable burden of proof and succeed in establishing that the prosecution had actually exercised its peremptory challenges in a racially discriminatory fashion (Batson v Kentucky, 476 US 79) — to use the majority’s own example (majority opn, at 646) — such a conviction should not now be given new vitality as the basis for additional punishment. CPL 400.21 (7) (b) so provides.

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

Order, insofar as appealed from, affirmed.

       Significantly, the use sought to be made of the unconstitutionally obtained conviction in Love was indirect: the People sought to use not the unconstitutional conviction itself, but the time period during which Love was incarcerated pursuant to that conviction to toll the running of a 10-year limitation period under Penal Law § 70.06 (1) (b) (iv) so that an earlier, concededly constitutional conviction might be counted as a predicate felony. Notwithstanding the People’s claim that there was no constitutional impediment to such a use of the unconstitutional conviction, we held that CPL 400.21 (7) (b) prohibited even that indirect use. The majority’s decision today —which, under the same statutory language, countenances a direct use of an unconstitutionally obtained conviction to increase defendant’s punishment — is completely at odds with Love.


source: Caselaw Access Project

author: Kaye, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v Irving Mizell, Respondent.
    Argued November 17, 1988;
    decided December 15, 1988

      POINTS OF COUNSEL

      William L. Murphy, District Attorney (Yolanda L. Rudich and Karen F. McGee of counsel), for appellant.
    In the absence of any legislative intent to prescribe a quantitative minimum to sustain a charge of seventh degree drug possession, the court erred in dismissing a misdemeanor complaint based upon defendant’s possession of two vials containing cocaine residue. (People v Sierra, 45 NY2d 56; People v Rencher, 141 AD2d 676; People v Jones, 63 AD2d 582; Matter of Santos v Chesworth, 133 AD2d 1001; People v Alvarez, 70 NY2d 375; People v Hicks, 3 AD2d 829; People v Pippin, 16 AD2d 635; People v Jennings,. 69 NY2d 103; People v Deegan, 69 NY2d 976.)

      Leslie Crary and Philip L. Weinstein for respondent.
    The court below was correct when it concluded, as did the trial court, that an allegation of possession of mere residue of cocaine is jurisdictionally insufficient to establish a prima facie case of possession of a controlled substance. (People v Alejandro, 70 NY2d 133; People v Dumas, 68 NY2d 729; People v Smith, 138 Misc 2d 531; People v Ifill, 137 Misc 2d 14; United States v Bass, 404 US 336; People v Ditta, 52 NY2d 657; Robinson v California, 370 US 660, 371 US 905; People v Hicks, 3 AD2d 829; People v Baker, 7 AD2d 707; People v Pippin, 16 AD2d 635.)
   OPINION OF THE COURT

Kaye, J.

Can an unusable cocaine "residue” found on the sides of vials in defendant’s possession support a charge of criminal possession of a controlled substance in the seventh degree? Concluding that it can, we reverse Appellate Term’s dismissal order and grant the People’s request to reinstate the misdemeanor complaint.

Defendant, allegedly using a metal pipe to damage the door lock of a Staten Island apartment, was arrested for criminal mischief in the fourth degree. In the course of the arrest, two vials were recovered from his possession. The police department laboratory analyzed their contents and reported cocaine "residue” on the sides of the vials. Defendant was arraigned on a misdemeanor complaint charging him with criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). The complaint, sworn by a police officer, stated that defendant knowingly and unlawfully possessed two vials containing a controlled substance, that the officer had received police department training in the recognition of controlled substances, that he viewed the substance, and that in his opinion it "is crack, cocaine.”

Following receipt of a certified copy of the laboratory report, the People moved in open court to convert the misdemeanor complaint to an information. Defendant responded to the People’s motion with an oral application to dismiss the complaint on the ground that residue, being an immeasurable amount, is insufficient to sustain a charge of seventh degree possession of a controlled substance. The People objected, insisting that since cocaine was in fact present, they had established a prima facie case. Criminal Court dismissed the accusatory instrument, concluding that cocaine residue was not a controlled substance as defined in the Public Health Law, and Appellate Term affirmed.

While the cocaine "residue” at issue here was not quantified, it is undisputed that the amount was so small as to be unusable. Thus, the question presented by this appeal is whether a charge of criminal possession is sustainable under Penal Law § 220.03 when the quantity of the drug possessed is an unusable residue. Differing results have been reached on this narrow issue (compare, e.g., People v Rencher, 141 AD2d 676, lv denied 72 NY2d 961 [construing Penal Law § 220.39 (1)]; People v Smith, 138 Misc 2d 531; People v James, 138 Misc 2d 920, with People v Ifill, 137 Misc 2d 14; People v Shelton, 136 Misc 2d 644; People v Mason, 136 Misc 2d 968).

The People urge us to adopt «the view of a majority of jurisdictions that any amount of a proscribed substance is sufficient to sustain a conviction for possession (see, Note, Criminal Liability for Possession of Nonusable Amounts of Controlled Substances, 77 Colum L Rev 596, 605-612 [1977]). Defendant, not surprisingly, advocates the minority view— that possession of a mere trace of cocaine cannot constitute a crime (id., at 600-604). Defendant contends that the Legislature meant to punish only possession of usable drugs, and that possession of minute amounts does not threaten the societal interests protected by the crime of unlawful possession.

Because of the language and structure of the New York statute, its relevant history and compelling practical considerations, we conclude that cocaine residue — though unusable — is nonetheless a controlled substance (Public Health Law § 3306) that can give rise to criminal liability for what the Legislature has classified as possession of a controlled substance in the seventh degree.

The prohibition against criminal possession of controlled substances is part of Penal Law article 220 (Controlled Substances Offenses), enacted in a comprehensive amendment of the drug laws in 1973. The "possession” crimes are set forth there in seven degrees, ranging from a class A misdemeanor for seventh degree possession to a class A-I felony for possession in the first degree (see, Penal Law §§ 220.03-220.21; see also, Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 220, at 6-10). While the Penal Law sections defining the six higher degrees of criminal possession specify other factors, such as minimal amounts or particular substances, Penal Law § 220.03 simply reads: "A person is guilty of criminal possession of a controlled substance in the seventh degree when he knowingly and unlawfully possesses a controlled substance.”

Penal Law § 220.03, viewed by itself, is unambiguous: a person may be guilty of criminal possession of a controlled substance in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance, irrespective of amount. When Penal Law § 220.03 is viewed in its statutory setting (see, Penal Law §§ 220.03-220.21), the absence of any qualification is particularly telling. The array of possession crimes demonstrates that when the Legislature wanted minimum quantity to be an essential element of the crime, it said so. The statutory scheme, moreover, evidences an intention that Penal Law § 220.03 serve as the "basic all-inclusive offense” (Hechtman, op. cit., at 19) covering possession of any controlled substance in any amount. So long as the quantity is sufficient to permit proper identification as a controlled substance, amount is immaterial (People v Smith, 138 Misc 2d 531, supra; see also, People v Rencher, 141 AD2d 676, supra; Hechtman, op. cit., at 19; Rosenblatt, New York’s New Drug Laws and Sentencing Statutes, at 211-213 [1973]).

This reading of Penal Law § 220.03 comports with the legislative intent in enacting article 220. Contrary to defendant’s assertion, the legislative purpose was not limited to punishing possession of drugs in amounts likely to be used (see, People v James, 138 Misc 2d 920, 922-923, supra). The Legislature sought also to deter the traffic in narcotics that has so devastated human life and the fabric of society. As noted in the 1972 Interim Report of the Temporary State Commission to Evaluate the Drug Laws, which the Legislature drew upon in formulating article 220 (see, Hechtman, op. cit., at 7): "Our determination to retain the concept of misdemeanor possessory offenses is based upon our belief that the removal of the potential penal consequences will effect an increase in the incidence of drug abuse * * * We do not choose to run the risk of increasing the incidence of drug abuse by the removal of penal sanctions for the unlawful possession of dangerous drugs,” (1972 NY Legis Doc No. 10, at 58; see also, People v Broadie, 37 NY2d 100, 113, cert denied 423 US 950.) A reading of Penal Law § 220.03 as it is written effects the legislative intention, while imposing a new barrier to criminal liability by implying an additional requirement does not.

Moreover, in contrast to the simple test suggested by the language of the statute itself, implying a "usable amount” requirement would add uncertainty to the law. Neither defendant nor the courts that have adopted this standard offer any readily applicable definition of usable amount. Usable by whom, how? As one court has observed: "If the test were to be applied to refer to an amount appropriate for defendant’s use it would require testimony involving defendant’s habit, bringing us close to if not within the constitutionally prohibited area regarding defendant’s status as an addict. Robinson v. California, 370 U.S. 660, 82 S Ct 1417, 8 L Ed 2d 758 (1962). If the test were applied so that expert testimony admissible at trial would establish the standard, the result could well differ from courtroom to courtroom and expert to expert, and create the kind of uneven administration of justice we must avoid.” (People v Harrington, 396 Mich 33, 46-47, 238 NW2d 20, 26.)

We therefore conclude that an unusable residue of cocaine is a controlled substance within the purview of Penal Law § 220.03. While courts have expressed understandable concern that criminal actions involving only traces of proscribed substances may represent a misuse of scarce resources in the war against drugs (see, e.g., People v James, 138 Misc 2d 920, 924-925, supra; People v Smith, 138 Misc 2d 531, 536, supra; People v Ifill, 137 Misc 2d 14, 17, supra; People v Mason, 136 Misc 2d 968, 972, supra), the Legislature has plainly entrusted that critical judgment to the prosecutor. The courts can assure that the statutory prerequisites are satisfied as they review accusatory instruments in particular cases, but they cannot winnow out what may seem to be insignificant prosecutions by implying a threshold requirement the Legislature chose not to impose.

Finally, while the focal issue in this appeal as posited by the parties is "residue,” we reject defendant’s additional contention that the misdemeanor complaint fails to state facts showing that his possession of a controlled substance was knowing (see, People v Dumas, 68 NY2d 729). It is settled that knowledge may be proven circumstantially and that, generally, possession suffices to permit the inference that possessors know what they possess, especially when it is on their person (People v Reisman, 29 NY2d 278, 285). Given that the complaint contains facts of an evidentiary character alleging that defendant possessed a visible amount of a controlled substance, it can be inferred for pleading purposes at this juncture that he knew what he possessed (see, People v Dumas, supra). The complaint, therefore, is facially sufficient.

Accordingly, the order of Appellate Term should be reversed and the misdemeanor complaint reinstated.

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

Order reversed, etc.

       While referring to an "information” in its dismissal order, Criminal Court actually never ruled on the People’s motion to convert the complaint to an information. On this appeal, the People ask only that the misdemeanor complaint be reinstated, and we therefore consider the case in that context.


author: Per Curiam.

text:
    In the Matter of Leroy A. VonderHeide, a Justice of the Northampton Town Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued November 15, 1988;
    decided December 15, 1988
    POINTS OF COUNSEL

      Richard T. Aulisi and Robert M. Cohen for petitioner.
    I. The charges should not be sustained. (Matter of von Wiegen, 101 AD2d 627, 63 NY2d 163; Matter of Doherty, 28 AD2d 546; People v Moreno, 70 NY2d 403; People v Tambe, 71 NY2d 492.) II. The determination fails to consider that Judge Vonder-Heide sought to be a fair Judge, was recognized as a fair Judge by the District Attorney, and that the episodes complained of were isolated or were attributable to insufficient training. (Matter of Greenfeld, 71 NY2d 389.)

      Gerald Stern and Jean M. Savanyu for respondent.
    I. Petitioner’s lack of fitness to serve as a Judge is amply demonstrated by his proprosecution bias, his disregard of fundamental rights, his ex parte communications, and related misconduct. (Matter of Reeves, 63 NY2d 105; Matter of McGee, 59 NY2d 870; Matter of Cerbone, 61 NY2d 93; Matter of Sardino, 58 NY2d 286.) II. Petitioner’s defenses of inadequate notice of misconduct and inadequate training are without merit. (Matter of Gelfand, 70 NY2d 211; Matter of Fabrizio, 65 NY2d 275.) III. The sanction of removal is appropriate. (Matter of Sardino, 58 NY2d 286; Matter of McGee, 59 NY2d 870.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, a Town Court Justice in Northampton since 1985, brings this proceeding to review a decision of respondent finding him guilty of five charges of misconduct and determining that the sanction of removal is appropriate. In its decision sustaining the charges, respondent found that petitioner routinely sought out and interviewed witnesses outside of court and made judgments based on their unsworn ex parte communications; that he berated a teen-age boy whom he believed to be carrying an open container outside a restaurant and used intemperate language and threatened harsh treatment if the youth appeared in his court; that on one occasion he arraigned, accepted a guilty plea from, and sentenced a person appearing before him as a complaining witness in an unrelated matter although no accusatory instrument was filed and the person was never informed of the charges; that he failed to disqualify himself from hearing two criminal cases even though he was a witness to the events underlying the charges; and that as a condition to his agreement to accept a guilty plea from a teen-ager, petitioner, apparently acting in some self-appointed prosecutorial role, insisted that the teen-ager sign a statement implicating a third person in an alleged crime petitioner had heard about through private conversations.

Based on these findings, the Commission unanimously determined that petitioner violated the following sections of the Rules of the Chief Adminstrator of the Courts Governing Judicial Conduct (22 NYCRR): §§ 100.1 (upholding the independence and integrity of the judiciary), 100.2 (avoiding impropriety or the appearance of impropriety), 100.3 (a) (1) (being faithful to the law and unswayed by partisan interests); § 100.3 (a) (4) (avoiding ex parte communications); and § 100.3 (c) (1) (i) (disqualifying self in proceedings where impartiality may be questioned because of personal knowledge of disputed facts) (see also, Code of Judicial Conduct Canons 1, 2, 3 [A] [1], [4]; and 3 [C] [1] [a]). A majority of the Commission determined that removal was the appropriate sanction for these violations while four members voted that petitioner should be censured.

The evidence substantiates respondent’s findings and we accordingly confirm the determinations of petitioner’s guilt. Petitioner argues that the charge concerning his verbal abuse of the teen-age boy should be dismissed because there was insufficient evidence of petitioner’s intoxication. There is no merit to this contention. The basis for this charge was not public intoxication but intemperate behavior. Nor do we find merit in petitioner’s argument that the charges concerning ex parte communications were insufficiently specific.

We also reject the contention that the charges should not be sustained in view of petitioner’s status as a nonlawyer and his lack of training. Ignorance and lack of competence do not excuse violations of ethical standards. As a Judge, petitioner had an obligation to learn about and obey the Rules Governing Judicial Conduct (see, Matter of Fabrizio, 65 NY2d 275, 277). In addition, we agree with respondent’s rejection of the argument that the charges reflect mere occasional lapses in judgment. On the contrary, the evidence demonstrates a pattern of injudicious behavior and inappropriate actions which cannot be viewed as acceptable conduct by one holding judicial office. Petitioner’s remaining contentions regarding his guilt are without merit.

Finally, in reviewing petitioner’s contention that the sanction imposed is too severe, we must recognize "that the purpose of judicial disciplinary proceedings is 'not punishment but the imposition of sanctions where necessary to safeguard the Bench from unfit incumbents’ ” (Matter of Reeves, 63 NY2d 105, 111, quoting Matter of Waltemade, 37 NY2d [a], [lll]). We agree with the majority of the Commission that the charges taken collectively demonstrate that "respondent has shown that he poses a threat to the proper administration of justice and is not fit to be a judge”.

Accordingly, the determined sanction of the State Commission on Judicial Conduct should be accepted, without costs.

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

Determined sanction accepted, without costs, and Honorable Leroy A. VonderHeide removed from the office of Justice of the Northampton Town Court.


author: Bellacosa, J. Chief Judge Wachtler

text:
    In the Matter of Alonzo M., Respondent, v New York City Department of Probation et al., Appellants.
    Argued October 14, 1988;
    decided December 15, 1988

      POINTS OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Trudi Mara Schleifer and Francis F. Caputo of counsel), for appellants.
    The courts below erred in holding that the Probation I & R (Investigation and Report) could not refer to those charges against petitioner which had been “favorably” disposed of, since the Department of Probation is required to present to the court all information, including the juvenile’s legal history, relevant to the appropriate disposition of each case. (Matter of Nathan N., 56 AD2d 554; Matter of Dorothy D., 49 NY2d 212.)

      Henry S. Weintraub and Lenore Gittis for respondent.
    The court below correctly interpreted Family Court Act § 375.1 and CPL 160.50 to prohibit the Department of Probation from making available and revealing information in its investigation report concerning the existence and contents of sealed records and papers. (Matter of Steven R., 121 Misc 2d 245; Matter of David H., 124 Misc 2d 190; Matter of Hynes v Karassik, 47 NY2d 659; Matter of Robert S., 123 Misc 2d 225; People v Lawrence, 64 NY2d 200; United States v Charmer Indus., 722 F2d 1073; Matter of Dondi, 63 NY2d 331; Matter of Henry v Looney, 65 Misc 2d 759.)
   OPINION OF THE COURT

Bellacosa, J.

The New York City Department of Probation (Probation) reviewed sealed information of favorably terminated matters concerning petitioner — a juvenile — and supplied protected data from its own separately maintained records to the Family Court in connection with the disposition of the youth’s latest brush with the law. The core issue is whether Probation violated the sealing protections of Family Court Act § 375.1 and the implementing judicial sealing orders. We agree with the lower courts that Family Court Act § 375.1 governs, that it is clear on its face and in its purpose, and that it has been violated. We thus affirm the order of the Appellate Division.

Petitioner, Alonzo M., had been placed on probation after a Family Court finding that he had engaged in acts constituting for an adult the crime of robbery in the third degree. Ten months later, it was alleged that the juvenile violated probation in respect to reporting and school attendance conditions. He conceded the violation, the matter was adjourned, and the court ordered Probation to provide an updated Investigation and Report (I & R) for the dispositional hearing (see, Family Ct Act § 351.1; 9 NYCRR part 350).

An I & R is a document prepared to assist a Family Court Judge in determining the appropriate disposition after adjudication of juvenile delinquency charges. The updated I & R in this case listed four arrests under "previous legal history”. The first two were accompanied by a reference that they were sealed, and the remaining two were followed by the notations "dismissed” and "petition withdraw[n]”. The report added that "[djuring the period of Probation Supervision, Respondent was rear[r]ested on 2 different occasions on Robbery related charges”. The charges arising from each of these incidents were also terminated in the juvenile’s favor and the related records were sealed pursuant to Family Court Act § 375.1 and CPL 160.50.

Petitioner in this article 78 proceeding sought Probation’s compliance with the requirements of Family Court Act § 375.1 and CPL 160.50 to keep the records of his favorably terminated cases sealed and not to reveal the existence and contents of those materials. He also asked for an order requiring Probation to delete from the I & R all references to information acquired from sealed records.

Probation claimed the invoked sealing provisions were inapplicable because it did not derive any information submitted to the Family Court from a review of sealed court records, but rather acquired the data from "indexed case record materials” or from an "administrative folder” it maintained for itself. Alternatively, Probation argued that because it is obliged to supervise petitioner and to report on his conduct to the Family Court at the dispositional phase of the latest juvenile proceeding the sealing provisions did not bar it from disclosing the juvenile’s past conduct to the Family Court.

Supreme Court granted the petition to the extent of ordering Probation to redact from its I & R the notations regarding the dates of arrest, docket numbers and dispositions of the favorably terminated cases, as well as the characterization of the two most recent charges as "robbery related” (133 Mise 2d 98, 102). The court permitted the recitation of the facts underlying the arrests, as contained in an accompanying psychological report because, while the mere date of and charge on an arrest are not sufficiently material and relevant to be admitted in the dispositional hearing, the facts underlying these prior acts were (see, Family Ct Act § 350.3 [1]).

The Appellate Division affirmed because the Family Court Act § 375.1 protection of " 'the rights of the individual from the adverse consequences of allegations that do not result in conviction’ would be vitiated if the Department of Probation were permitted to refer to its official records pertaining to such prior sealed cases in a subsequent investigation and report” (133 AD2d 631, 632 [citation omitted]).

We are of like mind that the sealing provisions of Family Court Act § 375.1 are violated when a public agency, privy to and maintaining records and information concerning cases terminated in the juvenile’s favor, divulges information resurrected from otherwise sealed records. It is also correct, however, that the background facts to such matters, if relevant and material, may be disclosed in an I & R prepared for a juvenile dispositional hearing if derived from sources other than sealed records and materials.

Family Court Act § 375.1 (1) is unambiguous in its direction that "[u]pon [favorable] termination of a delinquency proceeding * * * the court shall enter an order which shall immediately be served * * * upon the heads of the appropriate probation department * * * directing that all official records and papers * * * relating to the arrest, the prosecution and the probation service proceedings, including all duplicates or copies thereof, on file with the * * * probation service * * * be sealed and not made available to any person or public or private agency.”

Courts should construe clear and unambiguous statutes so as to give effect to the plain meaning of the words used (Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 674-675). Where a statute describes the particular situations in which it is to apply and no qualifying exception is added, " 'an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded’ ” (Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208-209). The words and purport of Family Court Act § 375.1 (1) are plain. Moreover, statutory construction, even when required with materials beyond the facial words of the statute, is rarely fortified by such a powerful set of support rods.

The provisions of this sealing statute were patterned after those in CPL 160.50. The dissent even acknowledges the State is not obligated to provide identical statutory protections in adult and juvenile proceedings. But when the Legislature does grant a protection in this area, the courts do not have a policy choice to override it or circumscribe it. Thus, we note that the Family Court Act version applicable here includes a thicker cocoon of protection which may be appreciated from these distinguishing features: the records of probation agencies are explicitly included as materials to be sealed under the Family Court Act provision; the CPL provision permits exceptional disclosure, despite sealing, to law enforcement agencies and the Family Court Act provision does not; and the statute applying to adult offenders expressly allows Probation Department use of sealed records when the accused is under supervision and the records concern an arrest occurring during the term of supervision (see, CPL 160.50 [1] [d] [vi]; Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 375.1, at 591).

The Legislature has recently reinforced its distinctive coverage of the two categories of offenders, adult and juvenile, by twice failing to enact proposed amendments to the Family Court Act § 375.1 (3) that would have authorized Probation Departments to use information included in sealed records and papers for the purpose now claimed to be authorized by what at best may be described as strained interpretation of existing law (see, A.11351, introduced May 29, 1986; S.19, introduced Jan. 7, 1987). The Legislature’s rejection of A.11351 and passage of a revised version of S.19, which excised an express sealing exemption (see, L 1987, ch 419), is confirmatory of previous legislative expression and intent not to permit Probation’s use of sealed records for purposes of preparing I & R reports (see, Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151, 157). Notably, we have previously relied on the fact that "the Legislature did not expand the scope of the exclusions from a sealing order when it amended the statute” as evidence that the narrow exceptions to the statute should not be interpreted to pierce the statute’s protective crust (Matter of Hynes v Karassik, 47 NY2d 659, 663).

The contextual landscape for our decision in this case is also dotted with apparently persistent judicial prohibition of agency access to sealed juvenile data (see, Matter of Wayne M., 135 Misc 2d 648; Matter of David H., 124 Misc 2d 190; Matter of Robert S., 123 Misc 2d 225; Matter of Steven R., 121 Misc 2d 245). When the Legislature, with presumed knowledge of the judicial construction of a statute, foregoes specific invitations and requests to amend its provisions to effect a different result, we have construed that to be some manifestation of legislative approbation of the judicial interpretation, albeit of the lower courts (Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151, 157, supra).

Returning to the statute itself, we also discover that the narrow scope of the only two statutory exceptions to Family Court Act § 375.1 reinforces a fortiori the view that the Legislature intended the sealing provision to block the release and use of protected materials even for purposes of subsequent dispositional hearings. The exceptions permit only the juvenile subject of the records, or a designated agent, future access and also allow probation service access to its own sealed records and papers for the limited purpose of making adjustment determinations under Family Court Act § 308.1 (4) (see, Family Ct Act § 375.1 [3]). Significantly, the Legislature excluded from that exceptional authorization in the very same body of law any use of sealed records to include probation investigations under Family Court Act § 351.1. The ejusdem generis rule of construction has particular pertinency here.

The Legislature has even expressly prohibited criminal court access to sealed Family Court and related police records at time of sentence (Family Ct Act §§ 381.2, 381.3; see, People v Hunter, 88 AD2d 321, 323). This extra measure of protection ensures that the express exception in the CPL sealing statute not be used in an adult criminal proceeding to access sealed Family Court records; it also eliminates a potential ambiguity and conflict in the meshing of the two bodies of law. Similarly, when an action is favorably disposed of in an adult proceeding the records are sealed under CPL 160.50, the arrest and prosecution are deemed a nullity, the accused is restored to the status occupied before arrest, and unless specifically required by statute, or directed by a superior court, the accused is not required to divulge information regarding the favorably terminated action (CPL 160.60). This statutory safety net protecting adults ensures that records and materials generated from an arrest and a favorably terminated proceeding are eliminated as facets of the accused’s criminal pedigree (see, Governor’s Approval Mem, L 1976, ch 877, 1976 McKinney’s Session Laws of NY, at 2451; Family Ct Act § 351.1; 9 NYCRR 350.7). It would be regressive to bestow such sweeping beneficial sealing protections on adult offenders while subjecting juvenile delinquents to the devastating prejudice of consideration of sealed data at their dispositional hearings.

In that regard, CPL 160.50 (1) (d) (vi) was not intended to permit Probation access to sealed criminal court records and materials so that they could subsequently be disclosed to yet another public entity, even the Family Court, to potentially serve as the basis for sanction enhancement on a wholly unrelated charge. Access was contemplated under the CPL so as to permit enhanced supervision, including the potential for probation revocation for the very act underlying the arrest which resulted in sealing (see, L 1986, ch 294, Governor’s Bill Jacket, July 15, 1986 letter from Senator Mega, bill sponsor, to Evan Davis, counsel to the Governor; June 26, 1986 letter from Assemblyman Feldman, bill sponsor, to Governor Cuomo). While we decide this case on statutory analysis only, the proposed use here, in the dispositional phase of an unrelated Family Court proceeding, while not constitutionally protected, contradicts an articulated rationale for the enactment of the sealing statutes — the "presumption of innocence” (see, Governor’s Approval Mem, L 1976, ch 877, 1976 McKinney’s Session Laws of NY, at 2451). Moreover, these statutes are not, as the dissent suggests, designed merely to prohibit general "public scrutiny” of favorably terminated proceedings. Their reach is much broader and specific — to preclude access by those, especially in government and bureaucracy, who might otherwise prejudicially use rightfully protected information. For, by definition for these purposes, accusations not proven and dismissed for whatever reason are not prior "criminal conduct” and have no need of "immunity” (dissenting opn, at 671).

It is useful at this point also to state briefly what this case is not about — the inherent authority of courts over their own records — despite the dissent’s reliance on that theory. That issue has not been advanced by the parties and would be dubious authority in any event to override so clear a legislative policy direction. This case also cannot be about the sternly rejected pre-Gault paternalism which deprived youngsters of rights they would otherwise enjoy (see, In re Gault, 387 US 1). Nor finally can the case be about a rule, as Probation urges, requiring petitioner to show what may be characterized as irreparable harm. First, that would turn the protective statute on its head. Second, the harmful and prejudicial consequences at the dispositional phase would self-evidently satisfy that inverted burden — a rule we do not embrace in any event — because the wrongful use of sealed data of this kind would disqualify the petitioner, almost automatically, from consideration, for example, of the least restrictive placements that he might otherwise receive. In this connection, the presumption of innocence directed usually at pending charges can surely have been viewed by the Legislature as even more germane in relation to favorably terminated matters.

In sum, whatever the judiciary’s inherent powers, they cannot rescue Probation in these matters where, as here, the Legislature has expressly made its purpose clear (see, Matter of Dorothy D., 49 NY2d 212, 215; Matter of Richard S. v City of New York, 32 NY2d 592, 595; compare, Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 6; County of Oneida v Berle, 49 NY2d 515, 522-523).

It is of no consequence that the source of the arrest and prosecution data, included within the I & R, was Probation’s own indexed case record materials, cumulative case records, or administrative records. Indeed, this makes matters worse and more disturbing because it unmasks a concededly regularized Big-Brother-like evasion of the prophylactic law itself and of particular sealing orders (see, Matter of Todd H., 49 NY2d 1022). This audacious violation of petitioner’s statutory rights —and apparently those of countless others — in maintaining separate "unsealed” files cannot be blinked — and certainly not by a strained statutory interpretation. That would be turning the "blind eye” and would wrongly place the Probation Department above the law. Even laudable goals and helpful tools cannot justify forbidden means.

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

Chief Judge Wachtler

(dissenting). Statutes sealing the records of juvenile proceedings from public scrutiny when the charges have been dismissed on procedural grounds should not be interpreted to deny the court itself access to the records when called upon to determine the appropriate degree of supervision for a juvenile offender. When the Legislature imposed on the courts the obligation to make an intelligent and fully informed determination based on the juvenile’s background and "previous conduct” (Family Ct Act § 351.1), it could not have intended the court to ignore what its own records show regarding the juvenile’s prior involvements with the law, which is a legitimate and traditional basis of inquiry at the dispositional phase. Thus when the court in this case ordered the Probation Department to investigate and report on the juvenile’s background, it was appropriate for the Department to reveal the existence and contents of the sealed proceedings in which the charges had been dismissed on procedural grounds without ever being factually resolved. Accordingly the petition, seeking to have these references deleted, should have been dismissed.

As the majority notes, the issue in this case does not involve constitutional rights or principles, it only involves statutory interpretation. At the "sentencing” phase, courts have traditionally taken into account the defendant’s prior criminal or bad acts, including those which never led to a conviction (People v Felix, 58 NY2d 156; United States v Sweig, 454 F2d 181; United States v Cardi, 519 F2d 309). Even in death penalty cases, there is no constitutional impediment to considering such factors provided the defendant is informed of the acts alleged and is afforded an opportunity to dispute or explain them (Gardner v Florida, 430 US 349; People v Felix, supra).

The rule is no different in juvenile proceedings. The Legislature has provided that before the court makes a final disposition it should review the probation report showing the juvenile’s history and "previous conduct” (Family Ct Act § 351.1) and has authorized the court in the broadest terms to consider all "material and relevant” evidence, even if it is incompetent or was unconstitutionally obtained (Family Ct Act § 350.3; see also, Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 350.3, at 502). In fact, in juvenile proceedings there is an even greater need for the court to be fully informed about the juvenile offender’s prior actions in relation to the law.

In juvenile cases the "State has chosen to direct its efforts toward seeking and averting the cause of juvenile delinquency, on the premise that erring children, still in the formative years of their lives, will respond to remedial and corrective efforts” (People v Oliver, 1 NY2d 152, 161). The majority notes that in seeking this goal the State may not be so paternalistic as to deprive "youngsters of rights they would otherwise enjoy” (majority opn, at 669). It is true, of course, that the State may not deprive an accused juvenile of fundamental constitutional rights afforded to adults accused of criminal acts (In re Gault, 387 US 1). But the State is not obligated to provide identical statutory rights in juvenile and adult proceedings. The fact is that juvenile proceedings and adult criminal proceedings are governed by different statutes and the primary reason for the different statutory schemes is to provide a greater opportunity for rehabilitation in juvenile cases. It is not constitutionally objectionable or inconsistent with the progressive rehabilitation goals of juvenile proceedings to permit or require the court to take a closer look at a juvenile offender’s background and prior involvements with the law before determining the appropriate degree of supervision. Indeed, this has been the modern trend.

There is nothing to indicate that the Legislature intended to reverse this trend when it adopted statutes sealing records of dismissed charges (CPL 160.50) and extended the benefits to those involved in juvenile proceedings (Family Ct Act § 375.1). These statutes generally prohibit public scrutiny of records in cases where the accused was found not guilty or the charges were dismissed on a number of procedural grounds. However, they do not provide immunity or prohibit a sentencing court from taking into account prior criminal conduct when charges were filed but later dismissed on procedural grounds. The majority recognizes that this is so when the court learns of the incidents from sources other than court records. It concludes, however, that the sealing statutes are so broadly worded as to prevent the court from consulting its own records to determine the existence of such incidents. Concededly, the statutes broadly provide that sealed records are not to be made available to "any person or public or private agency” (Family Ct Act § 375.1 [1]; CPL 160.50 [1] [c]) with a number of exceptions, none of which grant the Probation Department access to sealed records in connection with its sentencing role, although such amendments have been proposed to the Legislature with respect to juvenile proceedings (see, Governor’s Proposed Juvenile Justice Reform Act of 1986). However, it does not necessarily follow from this, as the majority concludes, that the Legislature must have intended to deny the Family Court access to its own sealed records when determining the appropriate supervision for a juvenile offender.

Although express legislative authority is required to permit the Probation Department, on its own initiative, to review sealed court records to determine, for instance, whether a person on probation has violated probation (CPL 160.50 [1] [d] [vi]), there is no need for such express authority or exception when the court reviews its own records, or directs the Probation Department to report on them, before imposing sentence or determining the appropriate disposition in juvenile cases.

The courts have inherent power over their records to seal them and to review them and in extraordinary cases to expunge them (Matter of Hynes v Karassik, 47 NY2d 659, 664; Matter of Dondi, 63 NY2d 331, 338-339; Matter of Dorothy D., 49 NY2d 212; Matter of Henry v Looney, 65 Misc 759, 762-763). Indeed, one of the purposes of the sealing statutes is to extend the court’s power to records in possession of other agencies which reflect the content of sealed court records (Matter of Dorothy D., supra, at 215; Matter of Wade v Department of Mental Hygiene, 49 NY2d 947; cf., Matter of Todd H., 49 NY2d 1022). But the sealing statutes have never been held to impair the power of the courts to review their own records in order to perform a peculiarly judicial act (Matter of Dondi, supra, at 338-339; Matter of Hynes v Karassik, supra, at 664-665). Thus statutes generally providing that sealed records should not be disclosed to "any person or public or private agency” (Family Ct Act § 375.1 [1]; CPL 160.50 [1] [c]) should not be interpreted to prohibit the court itself from reviewing its own records, or appointing the Probation Department to report on what they reflect, when the court is called upon to determine the appropriate degree of supervision for a juvenile offender. In fact, the only restriction the Legislature has imposed on the use of such sealed records at sentencing is found in section 381.2 of the Family Court Act, which simply prevents an "adult” court from reviewing the sealed records of dismissed juvenile proceedings when sentencing an adult.

In juvenile cases especially, the court should not be required to turn a blind eye to what its own records would reveal concerning the juvenile’s prior involvements with the law. In the case now before us, much of the petitioner’s prior court history was made available, in fragmented and perhaps distorted form, by the petitioner himself. Except for that circumstance all the court would know from the unsealed records is that the petitioner is a one-time offender who committed truancy violations while on parole. In such a case it is unrealistic and potentially dangerous to expect the court to make an appropriate disposition without consulting its own sealed records, when those records would show that in little more than a year after he turned 14, the petitioner was arrested on four other occasions on charges never factually resolved because of procedural dismissals, and that the last two arrests for robbery-related charges occurred while on probation — indicating at least a basis for additional inquiry into the juvenile’s activities and perhaps greater supervision of a youth who might truly need it.

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

Order affirmed, with costs.


author: Chief Judge Wachtler.

text:
    In the Matter of Coca-Cola Bottling Company of New York, Inc., Respondent, v Board of Estimate of the City of New York et al., Appellants.
    Argued November 15, 1988;
    decided December 20, 1988

      POINTS OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Jeffrey Schanback, Leonard Koerner and John De Angeli of counsel), for the Board of Estimate of the City of New York and others, appellants.
    The State Environmental Quality Review Act (SEQRA) did not divest New York City’s Departments of City Planning and Environmental Protection of their responsibilities to review proposed actions for environmental impact. Nor does SEQRA mandate any particular procedure or organizational structure upon localities when determining whether an action has environmental significance. Accordingly, Mayoral Executive Order No. 91, which implements SEQRA in New York City and requires the Departments of City Planning and Environmental Protection to assess whether an action has environmental significance, is a lawful implementation of SEQRA. (Sunshine Chem. Corp. v County of Suffolk, 104 AD2d 869, 64 NY2d 604, 775; Matter of Tri-County Taxpayers Assn. v Town Bd., 55 NY2d 41; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359; Scott v Village of Saratoga Springs, 199 NY 178; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359; Ecology Action v Van Cort, 99 Misc 2d 664; Matter of East Clinton Developers v Town of Clinton, 88 AD2d 416; Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215; Matter of Town of Poughkeepsie v Flacke, 84 AD2d 1, 57 NY2d 602.)

      Stanley S. Zinner for Con-Agg Recycling Corp,, appellant.
    SEQRA does not prohibit the City of New York from designating uniquely qualified colead agencies to assist in the review of proposed activities which may be of environmental significance. Mayoral Executive Order No. 91, which implements SEQRA in the City of New York, is consistent with the mandate and intent of SEQRA. (Glen Head — Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484; Matter of Tri-County Taxpayers Assn. v Town Bd., 55 NY2d 41; Matter of Dreves v New York Power Auth., 131 AD2d 182; Sunshine Chem. Corp. v County of Suffolk, 104 AD2d 869.)

      John T. Van Der Tuin and Jon Y. Arnason for respondent.
    I. The appeal must be dismissed as beyond this court’s power to review because the issues presented by appellants are premised upon facts which were found adversely to appellants by the Supreme Court, which findings were supported by the record and affirmed by the court below. (People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185; Matter of Marland v Ambach, 59 NY2d 711; Matter of Hofbauer, 47 NY2d 648.) II. The holding of the courts below that section 1 (k) of Mayoral Executive Order No. 91, which delegates permanent lead agency status to Department of Environmental Protection (DEP) and Department of City Planning (DCP), is contrary to ECL 8-0111 (6), at least where a negative or conditional negative determination is made and the environmental review terminated without participation by the responsible agency, is required by the purpose of SEQRA and is consistent with all relevant precedent and with the role of DEP and DCP under the City Charter; the order of the court below must therefore be affirmed. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Glen Head— Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484; Matter of Save the Pine Bush v Planning Bd., 96 AD2d 986; Matter of Martin v Koppelman, 124 AD2d 24; Matter of Harley Rendezvous v Town of Duanesburg Zoning Bd. of Appeals, 131 Misc 2d 1060; Matter of Consolidated Edison Co. v New York State Dept. of Envtl. Conservation, 112 AD2d 989; Matter of Rye Town/King Civic Assn. v Town of Rye, 82 AD2d 474.) III. Alternatively, if the order of the court below is reversed, the petition must nonetheless be granted because municipal appellants’ environmental review failed, as a matter of law, to identify the relevant areas of environmental concern with respect to the Con-Agg operation, to take a "hard look” at the environmental effects of Con-Agg’s operation and to make a reasoned elaboration of the basis for their determination of environmental nonsignificance; or, if the environmental review was not inadequate, as a matter of law, the proceeding must be remitted to the court below for a factual determination. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222.) IV. Alternatively, if the order of the court below is reversed, the proceeding must be remitted for determination whether the petition must be granted because amendment of the urban renewal plan and sale of the site to Con-Agg was unreasonable and illegal where it was predicated upon lawbreaking and campaign contributions, where it gutted the goals of the urban renewal plan, and where it has substantial adverse effects upon surrounding businesses. (Solnick v Whalen, 49 NY2d 224; Costantakos v Board of Educ., 105 AD2d 825; Hasi v City of Long Beach, 38 NY2d 383; Matter of Goodstein Constr. Corp. v Gliedman, 117 AD2d 170.) V. Alternatively, if the order of the court below is reversed, the petition must nonetheless be granted because DEP/DCP’s issuance of a "conditional negative declaration”, thereby avoiding an EIS and public review of an action which would adversely affect the environment, is contrary to statute (ECL art 8) and beyond municipal appellants’ power. (Matter of Rye Town/King Civic Assn. v Town of Rye, 82 AD2d 474; Glen Head — Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484; Inland Vale Farm Co. v Stergianopoulos, 65 NY2d 718; Southampton Assn. v Planning Bd., 109 AD2d 204; Matter of Soule v Town of Colonie, 95 AD2d 979; Matter of Manes v Simpson, 108 AD2d 914.)

      Robert Allan Muir, Jr., for Howard Golden and others, amici curiae.

    I. The Mayor’s Executive Order No. 91 is invalid and when applied to the Board of Estimate violates the Charter as it usurps the Board of Estimate’s powers and authority. (Under 21 v City of New York, 65 NY2d 344; Matter of Broidrick v Lindsay, 39 NY2d 641; Subcontractors Trade Assn. v Koch, 62 NY2d 422; Matter of Fullilove v Carey, 91 Misc 2d 531, 62 AD2d 798, 48 NY2d 826.) II. The designation of the DEP and the DCP as colead agencies violated SEQRA. (Glen Head — Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484; Matter of Save the Pine Bush v Planning Bd., 96 AD2d 986, 61 NY2d 668; Matter of Martin v Koppelman, 124 AD2d 24; Matter of Consolidated Edison Co. v

      New York State Dept. of Envtl. Conservation, 112 AD2d 989; Matter of Rye Town/King Civic Assn. v Town of Rye, 82 AD2d 474.) III. Respondent’s actions violate requirements for the issuance of a conditional negative declaration. (H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222.) IV. The environmental review fails to identify the relevant areas of environmental concern, take a "hard look” at the environmental effects of the proposals and make a reasoned elaboration of the basis for their determination of environmental nonsignificance; the environmental review was therefore arbitrary and insufficient requiring the environmental review and thus the actions be declared void. (E.F.S. Ventures Corp. v Foster, 128 AD2d 28; Aldrich v Pattison, 107 AD2d 258; Matter of Nielsen v Planning Bd., 110 AD2d 767; Matter of Soule v Town of Colonie, 95 AD2d 979; Matter of Save the Pine Bush v Planning Bd., 96 AD2d 986, 61 NY2d 668; Matter of Badura v Guelli, 94 AD2d 972; Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Inland Vale Farm Co. v Stergianopoulos, 104 AD2d 395, 65 NY2d 718; Matter of Environmental Defense Fund v Flacke, 96 AD2d 862.)
   OPINION OF THE COURT

Chief Judge Wachtler.

In the early 1980’s respondent Con-Agg Recycling Corp. (Con-Agg) began operating a concrete recycling business on a site in The Bronx owned by the City of New York (the City). The applicable urban renewal plan, however, did not authorize the use of the site for this purpose. Thus in 1984 Con-Agg sought amendment of the plan to allow for its recycling activities. It also sought to purchase the site from the City. Respondent Board of Estimate is the entity within the City government that was principally responsible for amending the urban renewal plan and selling the site.

These proposed actions were subject to environmental review under the State Environmental Quality Review Act (SEQRA) (ECL art 8). In New York City, SEQRA is implemented pursuant to the dictates of Mayoral Executive Order No. 91. Under this Executive Order two City agencies — the City Department of Environmental Protection (DEP), and the Department of City Planning — are designated as permanent "lead agencies” responsible for implementation of SEQRA. These agencies divide the environmental review of proposals according to their respective areas of expertise.

DEP reviewed the proposals in this case, and issued a "conditional negative declaration,” concluding that if certain noise abatement steps were taken by Con-Agg there would be no significant effect on the environment emanating from its recycling activities. The Board of Estimate subsequently approved the sale of the site to Con-Agg and the amendment of the urban development plan to allow for recycling on the property.

The present article 78 proceeding was then commenced against respondents by The Coca-Cola Bottling Company of New York, Inc. (Coca-Cola), a neighbor of Con-Agg’s in The Bronx. It was argued, among other things, that SEQRA was violated because the Board of Estimate, and not DEP, was the agency responsible for implementing the statute in this case. The trial court agreed, granted the petition, and nullified the Board of Estimate’s actions. The Appellate Division affirmed. We also affirm.

I

SEQRA’s fundamental policy is to inject environmental considerations directly into governmental decision making; thus the statute mandates that "[s]ocial, economic, and environmental factors shall be considered together in reaching decisions on proposed activities” (ECL 8-0103 [7]; see, Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 415; Governor’s Mem, 1975 NY Legis Ann, at 438). This policy is not mere exhortation. The statute and its implementing regulations make elaborate provision for requiring consideration of the environmental effects of governmental decisions by the decision maker, primarily through the "lead agency” concept.

Under SEQRA and its implementing regulations, a lead agency is defined as the governmental entity "principally responsible for carrying out, funding or approving” the proposed action (ECL 8-0111 [6]; 6 NYCRR 617.2 [v]). It is this agency that must initially determine whether a proposed action may have a significant effect on the environment (ECL 8-0109 [2], [4]; 6 NYCRR 617.2 [v]). If no significant effect is found, the lead agency may issue a "negative declaration,” identifying areas of environmental concern, and providing a reasoned elaboration explaining why the proposed action will not significantly affect the environment (6 NYCRR 617.6 [g]; see, Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 364). The regulations also provide for a "conditioned negative declaration”, whereby the lead agency requires modification of a proposed action alleviating potential significant environmental effects (6 NYCRR 617.2 [h]).

If the lead agency determines that there may be significant environmental impact, it must see to it that an environmental impact statement (EIS) is prepared, which fully evaluates the potential environmental effects, assesses mitigation measures, and considers alternatives to the proposed action (ECL 8-0109 [4], [2]). When there is a decision to proceed with a proposed action for which an EIS has been prepared, the lead agency must make "an explicit finding that * * * consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided” (ECL 8-0109 [8]).

In the case now before us, Coca-Cola primarily argues that under SEQRA the Board of Estimate was the lead agency, so that it, and not DEP, was required to assess the significance of the environmental impact of the project. This error, Coca-Cola asserts, renders the Board of Estimate’s actions void. In rejoinder, respondents recognize that the statute specifically requires that the "lead agency” with principal responsibility for approving a proposed action also be the body which determines whether the action "may have a significant effect on the environment” (see, ECL 8-0111 [6]). They maintain, however, that SEQRA was not violated here, and essentially make two supporting arguments, the first factual, and the second based upon statutory construction.

Respondents initially contend that Coca-Cola’s claim of a SEQRA violation lacks a factual basis, because here the DEP did not issue the conditional negative declaration itself, but only served as an advisor to the Board of Estimate on environmental matters. Thus, respondents conclude, the determination whether the project threatened significant environmental consequences was made by the appropriate agency under SEQRA.

The trial court, however, made a factual determination that the final decision to issue the conditional negative declaration was made by DEP. The Appellate Division affirmed the trial court’s order, without opinion. This finding, which respondents continue to dispute, is supported in the record before us, and therefore is beyond our further review (see, People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185, 189; Cohen and Karger, Powers of the New York Court of Appeals § 108, at 452 [rev ed]).

In the alternative, respondents contend that SEQRA anticipates that municipalities will develop their own SEQRA procedures, tailored to their particular needs. They cite ECL 8-0107 and 8-0113 (3) (b), which direct that agencies should carry out SEQRA as efficiently as possible, consistent with the statute’s policy. Reliance is also placed on ECL 8-0113 (3) (a), which allows retention of existing agency procedures at least as protective of SEQRA’s policies as the statute and regulations, and which states that an agency’s variance "in form alone” from procedures required by SEQRA shall not be objectionable. Respondents argue that Executive Order No. 91 efficiently and adequately carries out SEQRA’s mandates by designating permanent lead agencies, who bring expertise, consistency and manageability to the SEQRA process. Consequently, they conclude, although SEQRA requires that the lead agency with primary responsibility for the project initially assess the project’s environmental effect, Executive Order No. 91’s scheme is a welcome and permissible variance of this requirement in form alone.

In the case now before us, however, the operation of Executive Order No. 91 transgressed SEQRA’s spirit, as well as its form. SEQRA’s core policy of injecting environmental considerations directly into the policy-making decisions of governmental entities is fully implicated. The City’s implementation of the statute here allowed the Board of Estimate — the governmental entity responsible for the final policy decision to proceed with a project — to be insulated from consideration of environmental factors. This violated a fundamental policy of SEQRA.

Respondents contend, however, that in this particular case there was no SEQRA violation, because there were no environmental factors for the Board of Estimate to consider. They reason that because DEP concluded that the project would not significantly affect the environment, if certain precautions were taken by Con-Agg, Board of Estimate review was redundant and unnecessary. Respondents, therefore, assert that the SEQRA policy of having the ultimate decision maker assess environmental effects was not affected here.

As respondents would have it, the statutorily required early determination of whether a project may have a significant environmental effect is a sterile objective assessment of data, which can be separated from the policy decision involved in approving a project. However, the question of significance is not arrived at solely by gathering data and making calculations; instead, it is ultimately a policy decision, governed by the rule of reasonableness, that the particular facts and circumstances of a project do or do not call for preparation of a full impact statement (see, Chinese Staff & Workers Assn. v City of New York, supra [requiring consideration of socioeconomic factors as part of the determination of the significance of environmental effects]). Moreover, oftentimes this decision is a critical factor determining whether the project will finally be implemented. The statute’s policy, therefore, as well as its language, is transgressed when the initial determination of the significance of the environmental effect of a project is removed from the ambit of the agency principally responsible for approving the proposal.

To be sure, the lead agency under SEQRA is likely to be nonexpert in environmental matters, and will often need to draw on others. The statute and regulations not only provide for this, but strongly encourage it (see, ECL 8-0109 [3]; 6 NYCRR 617.3 [i]; 6 NYCRR 617.4 [c]). Of particular interest here, the regulations specifically advise agencies to "seek the advice and assistance of other agencies” regarding "recommendations on the significance or nonsignificance of actions” (6 NYCRR 617.4 [c] [2]). Nevertheless, the final determination on this issue must remain with the lead agency principally responsible for approving the project. To the extent Mayoral Executive Order No. 91 altered or diminished that responsibility it was invalidly applied in this case, and the lower courts correctly annulled the affected resolutions of the Board of Estimate.

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

Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur; Judge Titone taking no part.

Order affirmed, with costs.

      . Specifically, amendment of the plan and the sale of the site required Board of Estimate approval under section 505 of the General Municipal Law, and section 384 of the New York City Charter. It also required Board of Estimate review under the Uniform Land Use Review Procedure set forth in section 197-c of the City Charter, along with review, under section 200 of the City Charter, of the issuance of a special permit by the City Planning Commission under section 74-68 of the New York City Zoning Resolution.

      . Respondents are the Board of Estimate of the City of New York, the City Planning Commission of the City of New York, the Department of City Planning for the City of New York, the Department of Environmental Protection of the City of New York, the Public Development Corporation of the City of New York, and Con-Agg.

      . "Type II” actions genetically have been determined not to have a significant effect on the environment (6 NYCRR 617.13 [a]). Generally, under the regulations, negative declarations do not have to be issued for this category of actions (6 NYCRR 617.2 [y]; 617.3 [j]; 617.6 [g]). Respondents do not contend that the project at issue here is a Type II action.


author: Simons, J.

text:
    In the Matter of Town of New Castle, Respondent, v Charles A. Kaufmann et al., Appellants, et al., Respondent.
    Decided December 20, 1988

      APPEARANCES OF COUNSEL

      Donald F. Leistman and Jamie P. Alpern for appellants.

      Lawrence Dittelman, Town Attorney (George W. Echevarria of counsel), for Town of New Castle, respondent.
   OPINION OF THE COURT

Simons, J.

The issue on appeal is whether a residence containing a professional office, used on occasion to render psychiatric services, is "used exclusively for residential purposes” thereby qualifying for small claims assessment review pursuant to RPTL 730. We hold that it is. Accordingly, we reverse the Appellate Division order and dismiss the petition.

Respondents Charles Kaufmann and Joan Zoldessy are owners of a single-family residence within the Town of New Castle. The structure was occupied solely as a home until 1986 when, with the permission of the Town Planning Board, respondents remodeled part of it as an office to be used by Kaufmann for the practice of psychiatry. The office consists of approximately 356 square feet, or 17.5% of the gross floor space of the first floor of the residence.

In July 1986, respondents filed a complaint with the Town’s Board of Assessment Review alleging that the assessed valuation of their residence for real property tax purposes for the 1986/1987 tax year was excessive, unequal and illegal. After their complaint was denied, respondents commenced a proceeding pursuant to RPTL 730 which provides a simplified tax assessment review procedure to owners of "a one, two or three family owner-occupied structure used exclusively for residential purposes” (RPTL 730 [1]). At the hearing, the Town opposed respondents’ right to maintain the small claims review procedure, contending that a residence containing a professional office was not "used exclusively for residential purposes” and does not qualify for small claims assessment review as a matter of law. The Hearing Officer determined that respondents were qualified for small claims review, finding that respondent Kaufmann had established "a ten hour practice from his home”, and, based on the evidence of excessiveness and inequality submitted by respondents, he reduced the assessed valuation.

Thereafter, the Town commenced this CPLR article 78 proceeding seeking to vacate and annul the Hearing Officer’s determination. In its petition, the Town renewed its contention that respondents were not entitled to a small claims assessment review because their residence was not used exclusively for residential purposes, but rather a "substantial portion” of the premises was used as a professional office for the practice of psychiatry. Supreme Court granted the Town’s petition. It construed the statute strictly, holding that "the language * * * [used] 'exclusively for residential purposes’ must be read to shut out premises having any other uses”. The Appellate Division affirmed. We granted leave to appeal and now reverse.

Generally, statutes are to be construed according to the ordinary meaning of their words when the language is unambiguous and its meaning unequivocal (Sega v State of New York, 60 NY2d 183, 190-191). When such a construction would thwart the settled purposes of the statute, however, literal and narrow interpretations should be avoided (see, e.g., Association of Bar v Lewisohn, 34 NY2d 143, 153; People ex rel. Watchtower Bible & Tract Socy. v Haring, 8 NY2d 350, 358). A review of the history of RPTL 730 indicates that a narrow construction of the disputed language in this case would deny expedited and inexpensive review to homeowners and thus frustrate the statutory objectives.

Prior to the enactment of RPTL 730, residential taxpayers who sought review of real property tax assessments were required to commence a formal tax certiorari proceeding in Supreme Court pursuant to RPTL article 7. Such proceedings were so "complex and expensive as to be prohibitive for the owners of [residential] properties, thus imposing upon them an undue burden” (Town of Tonawanda v Ayler, 68 NY2d 836, 838). The Legislature enacted section 730 to cure this inequity and protect the wrongfully assessed homeowner by affording speedy and inexpensive relief to such persons through a simplified review procedure (see, Governor’s Mem, Bill Jacket, L 1981, ch 1022, 1981 NY Legis Ann, at 528; see also, RPTL 732 [2] [small claims assessment review hearing procedures]).

Although section 730 (1) (a) was amended in 1982 to clarify that small claims assessment review is available only to properties "used exclusively for residential purposes” (L 1982, ch 531), the Legislature did not intend that any nonresidential uses would disqualify a structure from eligibility. Rather, the legislative history establishes that the amendment was meant to clarify that mixed-use structures were precluded from the simplified procedure, without altering the structure and intent of the existing law (see, Bill Mem, Bill Jacket, L 1982, ch 531; letter of State Board of Equalization and Assessment, id.; cf., Budget Report on Bills, id. ["used exclusively” language intended to eliminate from eligibility residences located above storefronts that traditionally had been classified as residential]). Moreover, the State Division of Equalization and Assessment, which is responsible for effectuating the State’s assessment policies, has taken the position that although regular nonresidential use of property would disqualify a homeowner from taking advantage of RPTL 730, occasional or incidental use of property for nonresidential purposes will not disqualify the homeowner from small claims assessment review (opn letter to Senator Skelos [dated Feb. 13, 1986]). To ignore this history and narrowly construe the provision contravenes the primary purposes of RPTL 730. Residential taxpayers who occasionally use a portion of their home for business are no more able to expend the time and cost of a regular tax certiorari proceeding than homeowners who use their dwelling exclusively for residential purposes, and should be entitled to a small claims assessment review.

In this case, the record establishes that respondents’ business use of their home was occasional and incidental to its residential purpose. Specifically, in the seven-month period prior to this proceeding, respondents’ total business use of their home amounted to merely 10 hours. The 1982 amendment manifestly did not contemplate denial of access to the simplified assessment procedure based on such incidental use and respondents are eligible for small claims assessment review.

Accordingly, the order of the Appellate Division should be reversed and the petition dismissed.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and petition dismissed.