source: Caselaw Access Project

author: Titone, J. Bellacosa, J. Simons, J.

license: Public Domain

text:
    Miguel Braschi, Appellant, v Stahl Associates Company, Respondent.
    Argued April 26, 1989;
    decided July 6, 1989

      POINTS OF COUNSEL

      William B. Rubenstein, Owen Wincig, Nan D. Hunter and Judith Levin for appellant.
    I. This court, the Legislature and the City Council have consistently used a functionaf approach to definitions of "family” in the housing context. (City of White Plains v Ferraioli, 34 NY2d 3000; Group House v Board of Zoning & Appeals, 45 NY2d 266; McMinn v Town of Oyster Bay, 66 NY2d 544; 2-4 Realty Assocs. v Pittman, 137 Misc 2d 898; Zimmerman v Burton, 107 Misc 2d 401; 420 E. 80th Co. v Chin, 115 Misc 2d 195, 97 AD2d 390; A vest Seventh Corp. v Ringelheim, 116 Misc 2d 402; New York City Hous. Auth. v Shephard, 114 Misc 2d 873.) II. The New York State and United States Constitutions require that family be read functionally in this context so that similarly situated persons will be treated equally. (People v Liberta, 64 NY2d 152, 471 US 1020; 829 Seventh Ave. Co. v Reider, 67 NY2d 930; Matter of Robert Paul P., 63 NY2d 233; Group House v Board of Zoning & Appeals, 45 NY2d 266; United States Dept. of Agric. v Moreno, 413 US 528; New Jersey Welfare Rights Org. v Cahill, 411 US 619; 333 E. 53rd St. Assocs. v Mann, 121 AD2d 289, 70 NY2d 660; Dorsey v Stuyvesant Town Corp., 299 NY 512, 339 US 981; Under 21 v City of New York, 65 NY2d 344; Matter of Esler v Walters, 56 NY2d 306.)

      Dean G. Yuzek, David A. Picon, Joan Walter and Richard F. Czaja for respondent.
    I. Braschi has not demonstrated that, as the surviving gay life partner of a deceased tenant, he is a member of the decedent’s family for the purposes of section 2204.6 (d) of the State’s rent-control regulations and has a right to succeed to the decedent’s rent-controlled apartment. (Robinson v Jewett, 116 NY 40; McDonald v Fiss, 54 AD2d 489; East Four-Forty Assocs. v Ewell, 138 Misc 2d 235; Collins v Next W. Mgt., 137 Misc 2d 632; Matter of Robert Paul P., 63 NY2d 233; Bright Homes v Wright, 8 NY2d 157; Koppelman v O’Keeffe, 140 Misc 2d 828; Concourse Vil. v Bilotti, 139 Misc 2d 886.) II. Section 2204.6 (d) is constitutional when construed using the traditional definition of the term "family”. (Bowen v Owens, 476 US 340; Western & S. Life Ins. Co. v Board of Equalization, 451 US 648; Matter of Doe v Coughlin, 71 NY2d 48; Elmwood-Utica Houses v Buffalo Sewer Auth., 65 NY2d 489; Matter of Shattenkirk v Finnerty, 97 AD2d 51; Hodel v Indiana, 452 US 314; Poggi v City of New York, 109 AD2d 265, 67 NY2d 794; McGowan v Maryland, 366 US 420; Maresca v Cuomo, 64 NY2d 242, 474 US 802; Califano v Jobst, 434 US 47.)

      Peter L. Zimroth, Corporation Counsel (Leonard Koerner, Frederick P. Schaffer and Phyllis Arnold of counsel), for City of New York, amicus curiae.

    Braschi should be found to be "some other member of the deceased tenant’s family” within the meaning of the noneviction regulation and thus entitled to continue occupying his rent-controlled apartment. (Matter of McNulty v New York State Tax Commn., 70 NY2d 788; Matter of Jones v Berman, 37 NY2d 42; Matter of Capital Newspapers v Whalen, 69 NY2d 246; People v Eulo, 63 NY2d 341; 2-4 Realty Assocs. v Pittman, 137 Misc 2d 898; Zimmerman v Burton, 107 Misc 2d 401; Dixon v Robbins, 246 NY 169; Williams v Williams, 23 NY2d 592; Matter of New York Life Ins. Co. v State Tax Commn., 80 AD2d 675, 55 NY2d 758.)

      Arthur S. Leonard and Jonathan Lang for the Association of the Bar of the City of New York, amicus curiae.

    Under principles enunciated by this court, section 2204.6 (d) cannot be construed to deny Mr. Braschi the legal protection afforded to a "member of the deceased tenant’s family”. (McMinn v Town of Oyster Bay, 66 NY2d 544; Group House v Board of Zoning & Appeals, 45 NY2d 266; City of White Plains v Ferraioli, 34 NY2d 300; Matter of Robert Paul P., 63 NY2d 233.)

      Ann Moynihan, Paris Baldacci, Douglass J. Seidman, Kalman Finkel, John E. Kirklin, Lynn M. Kelly, Mary Marsh Zulack and Sandra R. Farber for the Legal Aid Society of New York City, amicus curiae.

    Protection of the rent-control laws is not limited to only those surviving cooccupants who are related by consanguinity or legal formality to the prime tenant, but includes functional family members as well. (Sullivan v Brevard Assocs., 66 NY2d 489; Matter of Herzog v Joy, 74 AD2d 372, 53 NY2d 821; 829 Seventh Ave. Co. v Reider, 67 NY2d 930; 2-4 Realty Assocs. v Pittman, 137 Misc 2d 898; McMinn v Town of Oyster Bay, 66 NY2d 544; Group House v Board of Zoning & Appeals, 45 NY2d 266; City of White Plains v Ferraioli, 34 NY2d 300; 8200 Realty Corp. v Lindsay, 27 NY2d 124.)

      Christopher H. Lunding and Jessica Sporn Tavakoli for Community Action for Legal Services, Inc., amicus curiae.

    The decision below should be reversed because the rent-control laws were intended to protect people who have lived permanently and continuously with a rent-controlled tenant as part of an integrated family unit. (Sullivan v Brevard Assocs., 66 NY2d 489; 829 Seventh Ave. Co. v Reider, 67 NY2d 930; 2-4 Realty Assocs. v Pittman, 137 Misc 2d 898; Matter of Waitzman v McGoldrick, 20 Misc 2d 1085; Edwards v Habib, 397 F2d 687; Moore v East Cleveland, 431 US 494; McMinn v Town of Oyster Bay, 66 NY2d 544; City of White Plains v Ferraioli, 34 NY2d 300; Group House v Board of Zoning & Appeals, 45 NY2d 266; Matter of Adult Anonymous II, 88 AD2d 30.)

      William H. Gardner, Thomas F. Coleman and Jay M. Kohorn for Family Service America and others, amici curiae.

    I. New York public policy requires flexibility in defining family. (Town of Henrietta v Fairchild, 53 Misc 2d 862; Baddour v City of Long Beach, 279 NY 167; Group House v Board of Zoning & Appeals, 45 NY2d 266; City of White Plains v Ferraioli, 34 NY2d 300; Crane Neck Assn. v New York City/ Long Is. County Servs. Group, 61 NY2d 154; McMinn v Town of Oyster Bay, 66 NY2d 544; New York City Hous. Auth. v Nesmith, 100 Misc 2d 414; New York City Hous. Auth. v Shephard, 114 Misc 2d 873.) II. New York City demographics reflect great variety in the personal characteristics of city residents and tremendous diversity in their family relationships. III. By defining "family” in an inclusive manner within the rent-control context, this court can further legislative intent, advance public policy, remove constitutional doubts and avoid unjust consequences. (Matter of Capital Newspapers v Whalen, 69 NY2d 246; Schultz v Boy Scouts, 65 NY2d 189; Kraut v Morgan & Brother Manhattan Stor. Co., 38 NY2d 445; People v Groff, 71 NY2d 101; Matter of Lorie C, 49 NY2d 161; Matter of Albano v Kirby, 36 NY2d 526; Matter of Pluto’s Cave v State Liq. Auth., 68 NY2d 791; Sullivan v Brevard Assocs., 66 NY2d 489; Matter of Herzog v Joy, 53 NY2d 821.) IV. A case-by-case approach, utilizing definitional criteria from zoning precedents, should be used to determine if nonrelatives are entitled to protection under the family survivor regulation. (People v Hasse, 57 Misc 2d 59; Matter of Sabot v Lavine, 42 NY2d 1068; Matter of Park W. Vil. v Lewis, 62 NY2d 431; People v Harkins, 49 Misc 2d 673; Smith v Organization of Foster Families, 431 US 816; Matter of Spenser v Spenser, 128 Misc 2d 298; Morone v Morone, 50 NY2d 481; Brown v County of San Joaquin, 601 F Supp 653; Matter of Lorie C, 49 NY2d 161; Roberts v United States Jaycees, 468 US 609.)

      James Briscoe West for the Gay Men’s Health Crisis, Inc., and others, amici curiae.

    I. AIDS continues to have a devastating impact upon the New York City housing market. II. The new category of eviction proceedings involving deaths from AIDS illustrates the scope of the problem. (Yorkshire Towers Co. v Harpster, 134 Misc 2d 384; Collins v Next W. Mgt., 137 Misc 2d 632.)

      Steven A. Rosen and Paula L. Ettelbrick for Lambda Legal Defense and Education Fund, Inc., amicus curiae.

    I. The I.A.S. court correctly held that the New York Constitution requires recognition that plaintiff is a "member of the deceased tenant’s family” entitled to continued occupancy of his rent-controlled apartment. (City of White Plains v Ferraioli, 34 NY2d 300; Group House v Board of Zoning & Appeals, 45 NY2d 266; McMinn v Town of Oyster Bay, 66 NY2d 544; Zimmerman v Burton, 107 Misc 2d 401; Matter of Robert Paul P., 63 NY2d 233.) II. The public policy of the State and City of New York, as determined by their respective Legislatures, supports plaintiffs right to continued occupancy. (Albemarle Paper Co. v Moody, 422 US 405.)
   OPINION OF THE COURT

Titone, J.

In this dispute over occupancy rights to a rent-controlled apartment, the central question to be resolved on this request for preliminary injunctive relief (see, CPLR 6301) is whether appellant has demonstrated a likelihood of success on the merits (see, Grant Co. v Srogi, 52 NY2d 496, 517) by showing that, as a matter of law, he is entitled to seek protection from eviction under New York City Rent and Eviction Regulations 9 NYCRR 2204.6 (d) (formerly New York City Rent and Eviction Regulations §56 [d]). That regulation provides that upon the death of a rent-control tenant, the landlord may not dispossess "either the surviving spouse of the deceased tenant or some other member of the deceased tenant’s family who has been living with the tenant” (emphasis supplied). Resolution of this question requires this court to determine the meaning of the term "family” as it is used in this context.

I.

Appellant, Miguel Braschi, was living with Leslie Blanchard in a rent-controlled apartment located at 405 East 54th Street from the summer of 1975 until Blanchard’s death in September of 1986. In November of 1986, respondent, Stahl Associates Company, the owner of the apartment building, served a notice to cure on appellant contending that he was a mere licensee with no right to occupy the apartment since only Blanchard was the tenant of record. In December of 1986 respondent served appellant with a notice to terminate informing appellant that he had one month to vacate the apartment and that, if the apartment was not vacated, respondent would commence summary proceedings to evict him.

Appellant then initiated an action seeking a permanent injunction and a declaration of entitlement to occupy the apartment. By order to show cause appellant then moved for a preliminary injunction, pendente lite, enjoining respondent from evicting him until a court could determine whether he was a member of Blanchard’s family within the meaning of 9 NYCRR 2204.6 (d). After examining the nature of the relationship between the two men, Supreme Court concluded that appellant was a "family member” within the meaning of the regulation and, accordingly, that a preliminary injunction should be issued. The court based this decision on its finding that the long-term interdependent nature of the 10-year relationship between appellant and Blanchard "fulfills any definitional criteria of the term 'family.’ ”

The Appellate Division reversed, concluding that section 2204.6 (d) provides noneviction protection only to "family members within traditional, legally recognized familial relationships” (143 AD2d 44, 45). Since appellant’s and Blanchard’s relationship was not one given formal recognition by the law, the court held that appellant could not seek the protection of the noneviction ordinance. After denying the motion for preliminary injunctive relief, the Appellate Division granted leave to appeal to this court, certifying the following question of law: "Was the order of this Court, which reversed the order of the Supreme Court, properly made?” We now reverse.

II.

As a threshold matter, although the determination of an application for a provisional remedy such as a preliminary injunction ordinarily involves the exercise of discretion, the denial of such relief presents a question of law reviewable by this court on an appeal brought pursuant to CPLR 5713 when "the Appellate Division denies [the] relief on an issue of law alone, and makes clear that no question of fact or discretion entered into its decision” (Herzog Bros. Trucking v State Tax Commn., 69 NY2d 536, 540-541, vacated 487 US —, 108 S Ct 2861, on remand 72 NY2d 720; see, Cohen and Karger, Powers of the New York Court of Appeals § 88, at 377 [rev ed]; Public Adm’r of County of N. Y. v Royal Bank, 19 NY2d 127, 129-130). Here, the Appellate Division’s determination rested solely on its conclusion that as a matter of law appellant could not seek noneviction protection because of the absence of a "legally recognized” relationship with Blanchard. Consequently, appellant’s appeal may be entertained, and we may review the central question presented: whether, on his motion for a preliminary injunction, appellant failed to establish, as a matter of law, the requisite clear likelihood of success on the merits of his claim to the protection from eviction provided by section 2204.6 (d).

III.

It is fundamental that in construing the words of a statute "[t]he legislative intent is the great and controlling principle” (People v Ryan, 274 NY 149, 152; see, Ferres v City of New Rochelle, 68 NY2d 446, 451; Matter of Petterson v Daystrom Corp., 17 NY2d 32, 38). Indeed, "the general purpose is a more important aid to the meaning than any rule which grammar or formal logic may lay down” (United States v Whitridge, 197 US 135, 143). Statutes are ordinarily interpreted so as to avoid objectionable consequences and to prevent hardship or injustice (see, Zappone v Home Ins. Co., 55 NY2d 131; Matter of Petterson v Daystrom Corp., 17 NY2d 32, 38, supra; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 141, 143, 146). Hence, where doubt exists as to the meaning of a term, and a choice between two constructions is afforded, the consequences that may result from the different interpretations should be considered (see, Matter of Town Smithtown v Moore, 11 NY2d 238, 244; People v Ryan, 274 NY 149, 152, supra). In addition, since rent-control laws are remedial in nature and designed to promote the public good, their provisions should be interpreted broadly to effectuate their purposes (see, Matter of Park W. Vil. v Lewis, 62 NY2d 431, 436-437; Matter of Sommer v New York City Conciliation & Appeals Bd., 93 AD2d 481, affd 61 NY2d 973; McKinney’s Cons Law of NY, Book 1, Statutes § 341). Finally, where a problem as to the meaning of a given term arises, a court’s role is not to delve into the minds of legislators, but rather to effectuate the statute by carrying out the purpose of the statute as it is embodied in the words chosen by the Legislature (see, Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum L Rev 527, 538-540).

The present dispute arises because the term "family” is not defined in the rent-control code and the legislative history is devoid of any specific reference to the noneviction provision. All that is known is the legislative purpose underlying the enactment of the rent-control laws as a whole.

Rent control was enacted to address a "serious public emergency” created by "an acute shortage in dwellings,” which resulted in "speculative, unwarranted and abnormal increases in rents” (L 1946 ch 274, codified, as amended, at McKinney’s Uncons Laws of NY § 8581 et seq). These measures were designed to regulate and control the housing market so as to "prevent exactions of unjust, unreasonable and oppressive rents and rental agreements and to forestall profiteering, speculation and other disruptive practices tending to produce threats to the public health * * * [and] to prevent uncertainty, hardship and dislocation” (id.). Although initially designed as an emergency measure to alleviate the housing shortage attributable to the end of World War II, "a serious public emergency continues to exist in the housing of a considerable number of persons” (id.). Consequently, the Legislature has found it necessary to continually reenact the rent-control laws, thereby providing continued protection to tenants.

To accomplish its goals, the Legislature recognized that not only would rents have to be controlled, but that evictions would have to be regulated and controlled as well (id.). Hence, section 2204.6 of the New York City Rent and Eviction Regulations (9 NYCRR 2204.6), which authorizes the issuance of a certificate for the eviction of persons occupying a rent-controlled apartment after the death of the named tenant, provides, in subdivision (d), noneviction protection to those occupants who are either the "surviving spouse of the deceased tenant or some other member of the deceased tenant’s family who has been living with the tenant [of record]” (emphasis supplied). The manifest intent of this section is to restrict the landowners’ ability to evict a narrow class of occupants other than the tenant of record. The question presented here concerns the scope of the protections provided. Juxtaposed against this intent favoring the protection of tenants, is the over-all objective of a gradual "transition from regulation to a normal market of free bargaining between landlord and tenant” (see, e.g., Administrative Code of City of New York § 26-401). One way in which this goal is to be achieved is "vacancy decontrol,” which automatically makes rent-control units subject to the less rigorous provisions of rent stabilization upon the termination of the rent-control tenancy (9 NYCRR 2520.11 [a]; 2521.1 [a] [1]).

Emphasizing the latter objective, respondent argues that the term "family member” as used in 9 NYCRR 2204.6 (d) should be construed, consistent with this State’s intestacy laws, to mean relationships of blood, consanguinity and adoption in order to effectuate the over-all goal of orderly succession to real property. Under this interpretation, only those entitled to inherit under the laws of intestacy would be afforded noneviction protection (see, EPTL 4-1.1). Further, as did the Appellate Division, respondent relies on our decision in Matter of Robert Paul P. (63 NY2d 233), arguing that since the relationship between appellant and Blanchard has not been accorded legal status by the Legislature, it is not entitled to the protections of section 2204.6 (d), which, according to the Appellate Division, applies only to "family members within traditional, legally recognized familial relationships” (143 AD2d 44, 45). Finally, respondent contends that our construction of the term "family member” should be guided by the recently enacted noneviction provision of the Rent Stabilization Code (9 NYCRR 2523.5 [a], [b] [1], [2]), which was passed in response to our decision in Sullivan v Brevard Assocs. (66 NY2d 489), and specifically enumerates the individuals who are entitled to noneviction protection under the listed circumstances (9 NYCRR 2520.6 [o]).

However, as we have continually noted, the rent-stabilization system is different from the rent-control system in that the former is a less onerous burden on the property owner, and thus the provisions of one cannot simply be imported into the other (Sullivan v Brevard Assocs., 66 NY2d 489, 494, supra; see, 8200 Realty Corp. v Lindsay, 27 NY2d 124, 136-137). Respondent’s reliance on Matter of Robert Paul P. (supra) is also misplaced, since that case, which held that one adult cannot adopt another where none of the incidents of a filial relationship is evidenced or even remotely intended, was based solely on the purposes of the adoption laws (see, Domestic Relations Law § 110) and has no bearing on the proper interpretation of a provision in the rent-control laws.

We also reject respondent’s argument that the purpose of the noneviction provision of the rent-control laws is to control the orderly succession to real property in a manner similar to that which occurs under our State’s intestacy laws (EPTL 4-1.1, 4-1.2). The noneviction provision does not concern succession to real property but rather is a means of protecting a certain class of occupants from the sudden loss of their homes. The regulation does not create an alienable property right that could be sold, assigned or otherwise disposed of and, hence, need not be construed as coextensive with the intestacy laws. Moreover, such a construction would be inconsistent with the purposes of the rent-control system as a whole, since it would afford protection to distant blood relatives who actually had but a superficial relationship with the deceased tenant while denying that protection to unmarried lifetime partners.

Finally, the dissent’s reliance on Hudson View Props. v Weiss (59 NY2d 733) is misplaced. In that case we permitted the eviction of an unrelated occupant from a rent-controlled apartment under a lease explicitly restricting occupancy to "immediate family”. However, the tenant in Hudson View conceded "that an individual not part of her immediate family” occupied the apartment (id., at 735), and, thus, the sole question before us was whether enforcement of the lease provision was violative of the State or City Human Rights Law. Whether respondent tenant was, in fact, an "immediate family” member was neither specifically addressed nor implicitly answered (see, dissenting opn, at 220).

Contrary to all of these arguments, we conclude that the term family, as used in 9 NYCRR 2204.6 (d), should not be rigidly restricted to those people who have formalized their relationship by obtaining, for instance, a marriage certificate or an adoption order. The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life. In the context of eviction, a more realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence. This view comports both with our society’s traditional concept of "family” and with the expectations of individuals who live in such nuclear units (see also, 829 Seventh Ave. Co. v Reider, 67 NY2d 930, 931-932 [interpreting 9 NYCRR 2204.6 (d)’s additional "living with” requirement to mean living with the named tenant "in a family unit, which in turn connotes an arrangement, whatever its duration, bearing some indicia of permanence or continuity” (emphasis supplied)]). In fact, Webster’s Dictionary defines "family” first as "a group of people united by certain convictions or common affiliation” (Webster’s Ninth New Collegiate Dictionary 448 [1984]; see, Ballantine’s Law Dictionary 456 [3d ed 1969] ["family” defined as "(p)rimarily, the collective body of persons who live in one house and under one head or management”]; Black’s Law Dictionary 543 [Special Deluxe 5th ed 1979]). Hence, it is reasonable to conclude that, in using the term "family,” the Legislature intended to extend protection to those who reside in households having all of the normal familial characteristics. Appellant Braschi should therefore be afforded the opportunity to prove that he and Blanchard had such a household.

This definition of "family” is consistent with both of the competing purposes of the rent-control laws: the protection of individuals from sudden dislocation and the gradual transition to a free market system. Family members, whether or not related by blood, or law who have always treated the apartment as their family home will be protected against the hardship of eviction following the death of the named tenant, thereby furthering the Legislature’s goals of preventing dislocation and preserving family units which might otherwise be broken apart upon eviction. This approach will foster the transition from rent control to rent stabilization by drawing a distinction between those individuals who are, in fact, genuine family members, and those who are mere roommates (see, Real Property Law § 235-f; Yorkshire Towers Co. v Harpster, 134 Misc 2d 384) or newly discovered relatives hoping to inherit the rent-controlled apartment after the existing tenant’s death.

The determination as to whether an individual is entitled to noneviction protection should be based upon an objective examination of the relationship of the parties. In making this assessment, the lower courts of this State have looked to a number of factors, including the exclusivity and longevity of the relationship, the level of emotional and financial commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society, and the reliance placed upon one another for daily family services (see, e.g., Athineos v Thayer, NYLJ, Mar. 25, 1987, at 14, col 4 [Civ Ct, Kings County], affd NYLJ, Feb. 9, 1988, at 15, col 4 [App Term, 2d Dept] [orphan never formally adopted but lived in family home for 34 years]; 2-4 Realty Assocs. v Pittman, 137 Misc 2d 898, 902 [two men living in a "father-son” relationship for 25 years]; Zimmerman v Burton, 107 Misc 2d 401, 404 [unmarried heterosexual life partner]; Rutar Co. v Yoshito, No. 53042/79 [Civ Ct, NY County][unmarried heterosexual life partner]; Gelman v Castaneda, NYLJ, Oct. 22, 1986, at 13, col 1 [Civ Ct, NY County] [male life partners]). These factors are most helpful, although it should be emphasized that the presence or absence of one or more of them is not dispositive since it is the totality of the relationship as evidenced by the dedication, caring and self-sacrifice of the parties which should, in the final analysis, control. Appellant’s situation provides an example of how the rule should be applied.

Appellant and Blanchard lived together as permanent life partners for more than 10 years. They regarded one another, and were regarded by friends and family, as spouses. The two men’s families were aware of the nature of the relationship, and they regularly visited each other’s families and attended family functions together, as a couple. Even today, appellant continues to maintain a relationship with Blanchard’s niece, who considers him an uncle.

In addition to their interwoven social lives, appellant clearly considered the apartment his home. He lists the apartment as his address oh his driver’s license and passport, and receives all his mail at the apartment address. Moreover, appellant’s tenancy was known to the building’s superintendent and doormen, who viewed the two men as a couple.

Financially, the two men shared all obligations including a household budget. The two were authorized signatories of three safe-deposit boxes, they maintained joint checking and savings accounts, and joint credit cards. In fact, rent was often paid with a check from their joint checking account. Additionally, Blanchard executed a power of attorney in appellant’s favor so that appellant could make necessary decisions — financial, medical and personal — for him during his illness. Finally, appellant was the named beneficiary of Blanchard’s life insurance policy, as well as the primary legatee and coexecutor of Blanchard’s estate. Hence, a court examining these facts could reasonably conclude that these men were much more than mere roommates.

Inasmuch as this case is before us on a certified question, we conclude only that appellant has demonstrated a likelihood of success on the merits, in that he is not excluded, as a matter of law, from seeking noneviction protection. Since all remaining issues are beyond this court’s scope of review, we remit this case to the Appellate Division so that it may exercise its discretionary powers in accordance with this decision.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for a consideration of undetermined questions. The certified question should be answered in the negative.

Bellacosa, J.

(concurring). My vote to reverse and remit rests on a narrower view of what must be decided in this case than the plurality and dissenting opinions deem necessary.

The issue is solely whether petitioner qualifies as a member of a "family”, as that generic and broadly embracive word is used in the anti-eviction regulation of the rent-control apparatus. The particular anti-eviction public policy enactment is fulfilled by affording the remedial protection to this petitioner on the facts advanced on this record at this preliminary injunction stage. The competing public policy of eventually restoring rent-controlled apartments to decontrol, to stabilization and even to arm’s length market relationships is eclipsed in this instance, in my view, by the more pertinently expressed and clearly applicable anti-eviction policy.

Courts, in circumstances as are presented here where legislative intent is completely indecipherable (Division of Housing and Community Renewal, the agency charged with administering the policy, is equally silent in this case and on this issue), are not empowered or expected to expand or to constrict the meaning of the legislatively chosen word "family,” which could have been and still can be qualified or defined by the duly constituted enacting body in satisfying its separate branch responsibility and prerogative. Construing a regulation does not allow substitution of judicial views or preferences for those of the enacting body when the latter either fails or is unable ór deliberately refuses to specify criteria or definitional limits for its selected umbrella word, "family”, especially where the societal, governmental, policy and fiscal implications are so sweeping (Breitel, The Lawmakers, 65 Colum L Rev 749, 767-771; see also, Boreali v Axelrod, 71 NY2d 1, 11-12). For then, "the judicial function expands beyond the molecular movements, in Holmes’ figure, into the molar” (Breitel, op. cit., at 770).

The plurality opinion favors the petitioner’s side by invoking the nomenclature of "nuclear”/”normal”/”genuine” family versus the "traditional”/’’legally recognizable” family selected by the dissenting opinion in favor of the landlord. I eschew both polar camps because I see no valid reason for deciding so broadly; indeed, there are cogent reasons not to yaw towards either end of the spectrum.

The application of the governing word and statute to reach a decision in this case can be accomplished on a narrow and legitimate jurisprudential track. The enacting body has selected an unqualified word for a socially remedial statute, intended as a protection against one of the harshest decrees known to the law — eviction from one’s home. Traditionally, in such circumstances, generous construction is favored. Petitioner has made his shared home in the affected apartment for 10 years. The only other occupant of that rent-controlled apartment over that same extended period of time was the tenant-in-law who has now died, precipitating this battle for the apartment. The best guidance available to the regulatory agency for correctly applying the rule in such circumstances is that it would be irrational not to include this petitioner and it is a more reasonable reflection of the intention behind the regulation to protect a person such as petitioner as within the regulation’s class of "family”. In that respect, he qualifies as a tenant in fact for purposes of the interlocking provisions and policies of the rent-control law. Therefore, under CPLR 6301, there would unquestionably be irreparable harm by not upholding the preliminary relief Supreme Court has decreed; the likelihood of success seems quite good since four Judges of this court, albeit by different rationales, agree at least that petitioner fits under the beneficial umbrella of the regulation; and the balance of equities would appear to favor petitioner.

The reasons for my position in this case are as plain as the inappropriate criticism of the dissent that I have engaged in ipse dixit decision making. It should not be that difficult to appreciate my view that no more need be decided or said in this case under the traditional discipline of the judicial process. Interstitial adjudication, when a court cannot institutionally fashion a majoritarian rule of law either because it is fragmented or because it is not omnipotent, is quite respectable jurisprudence. We just do not know the answers or implications for an exponential number of varied fact situations, so we should do what courts are in the business of doing— deciding cases as best they fallibly can. Applying the unvarnished regulatory word, "family”, as written, to the facts so far presented falls within a well-respected and long-accepted judicial method.

Simons, J.

(dissenting). I would affirm. The plurality has adopted a definition of family which extends the language of the regulation well beyond the implication of the words used in it. In doing so, it has expanded the class indefinitely to include anyone who can satisfy an administrator that he or she had an emotional and financial "commitment” to the statutory tenant. Its interpretation is inconsistent with the legislative scheme underlying rent regulation, goes well beyond the intended purposes of 9 NYCRR 2204.6 (d), and produces an unworkable test that is subject to abuse. The concurring opinion fails to address the problem. It merely decides, ipse dixit, that plaintiff should win.

Preliminarily, it will be helpful to briefly look at the legislative scheme underlying rent regulation.

Rent regulation in New York is implemented by rent control and rent stabilization. Rent control is the stricter of the two programs. In 1946 the first of many "temporary” rent-control measures was enacted to address a public emergency created by the shortage of residential accommodations after World War II. That statute, and the statutes and regulations which followed it, were designed to monitor the housing market to prevent unreasonable and oppressive rents. These laws regulate the terms and conditions of rent-controlled tenancies exclusively; owners can evict tenants or occupants only on limited specified grounds (9 NYCRR part 2104 [State]; 2204 [City of New York]) and only with the permission of the administrative agency.

The rent-stabilization system originated in 1969. It is a less onerous regulatory scheme, conceived as a compromise solution to permit regulation of an additional 400,000 previously uncontrolled properties but also to allow landlords reasonable latitude in controlling the use of the newly regulated properties. One of its principal purposes was to encourage new construction. As both the Rent Control Law and the Rent Stabilization Law make clear, the Legislature contemplated that eventually rent control would end as rent-controlled tenancies terminated, and thereafter became subject to rent stabilization (see generally, Sullivan v Brevard Assocs., 66 NY2d 489, 494-495; 8200 Realty Corp. v Lindsay, 27 NY2d 124, 136-137). These programs were adopted notwithstanding the Legislature’s expressed sentiment that the "ultimate objective of state policy” was the "normal market of free bargaining between a landlord and tenant” (compare, legislative finding for Emergency Tenant Protection Act of 1974 [the enabling legislation for rent stabilization], L 1974, ch 576, § 4 [§ 2], McKinney’s Uncons Laws of NY § 8622, with legislative finding for Local Emergency Housing Rent Control Act [the enabling legislation for the city Rent Control Law], L 1962, ch 21, § 1 [2], McKinney’s Uncons Laws of NY § 8602). Manifestly, judicial decisions which permit the indefinite extension of rent-controlled tenancies run counter to the legislative goal of eventually eliminating rent control while maintaining some measure of stability in the residential housing market.

A limited exception to the general rule that rent-controlled properties, when vacated, become subject to rent stabilization is found in section 2204.6 (d). It provides that: "(d) No occupant of housing accommodations shall be evicted under this section where the occupant is either the surviving spouse of the deceased tenant or some other member of the deceased tenant’s family who has been living with the tenant” (9 NYCRR 2204.6 [d] [emphasis added]).

Occupants who come within the terms of the section obtain a new statutory rent-controlled tenancy. Those eligible are identified by the italicized phrase but nowhere in the regulations or in the rent-control statutes is the phrase or the word "family” defined. Notably, however, family is linked with spouse, a word of clearly defined legal content. Thus, one would assume that the draftsman intended family to be given its ordinary and commonly accepted meaning related in some way to customary legal relationships established by birth, marriage or adoption. The plurality, however, holds that the exception provided in the regulation includes relationships outside the traditional family. In my view, it does not.

Analysis starts with the familiar rule that a validly enacted regulation has "the force and effect of law” (see, Molina v Games Mgt. Servs., 58 NY2d 523, 529; Matter of Bernstein v Toia, 43 NY2d 437, 448); it should be interpreted no differently than a statute (Matter of Cortland-Clinton, Inc. v New York State Dept. of Health, 59 AD2d 228, 231). As such, the regulation should not be extended by construction beyond its express terms or the reasonable implications of its language (McKinney’s Cons Laws of NY, Book 1, Statutes § 94) and absent further definition in the regulation or enabling statutes, the words of the section are to be construed according to their ordinary and popular significance (People v Cruz, 48 NY2d 419, 428).

Central to any interpretation of the regulatory language is a determination of its purpose. There can be little doubt that the purpose of section 2204.6 (d) was to create succession rights to a possessory interest in real property where the tenant of record has died or vacated the apartment (Matter of Herzog v Joy, 53 NY2d 821, affg 74 AD2d 372). It creates a new tenancy for every surviving family member living with decedent at the time of death who then becomes a new statutory tenant until death or until he or she vacates the apartment. The State concerns underlying this provision include the orderly and just succession of property interests (which includes protecting a deceased’s spouse and family from loss of their longtime home) and the professed State objective that there be a gradual transition from government regulation to a normal market of free bargaining between landlord and tenant. Those objectives require a weighing of the interests of certain individuals living with the tenant of record at his or her death and the interests of the landlord in regaining possession of its property and rerenting it under the less onerous rent-stabilization laws. The interests are properly balanced if the regulation’s exception is applied by using objectively verifiable relationships based on blood, marriage and adoption, as the State has historically done in the estate succession laws, family court acts and similar legislation (see, Matter of Lalli, 43 NY2d 65, 69-70, affd 439 US 259). The distinction is warranted because members of families, so defined, assume certain legal obligations to each other and to third persons, such as creditors, which are not imposed on unrelated individuals and this legal interdependency is worthy of consideration in determining which individuals are entitled to succeed to the interest of the statutory tenant in rent-controlled premises. Moreover, such an interpretation promotes certainty and consistency in the law and obviates the need for drawn out hearings and litigation focusing on such intangibles as the strength and duration of the relationship and the extent of the emotional and financial interdependency (see, Morone v Morone, 50 NY2d 481, 486; People v Allen, 27 NY2d 108, 112-113). So limited, the regulation may be viewed as a tempered response, balancing the rights of landlords with those of the tenant. To come within that protected class, individuals must comply with State '' laws relating to marriage or adoption. Plaintiff cannot avail himself of these institutions, of course, but that only points up the need for a legislative solution, not a judicial one (see, Matter of Robert Paul P., 63 NY2d 233, 235, n 1; Morone v Morone, supra, at 489).

Aside from these general considerations, the language itself suggests the regulation should be construed along traditional lines. Significantly, although the problem of unrelated persons living with tenants in rent-controlled apartments has existed for as long as rent control, there has been no effort by the State Legislature, the New York City Council or the agency charged with enforcing the statutes to define the word "family” contained in 9 NYCRR 2204.6 (d) and its predecessors and we have no direct evidence of the term’s intended scope. The plurality’s response to this problem is to turn to the dictionary and select one definition, from the several found there, which gives the regulation the desired expansive construction. I would search for the intended meaning by looking at what the Legislature and the Division of Housing and Community Renewal (DHCR), the agency charged with implementing rent control, have done in related areas. These sources produce persuasive evidence that both bodies intend the word family to be interpreted in the traditional sense.

The legislative view may be found in the "roommate” law enacted in 1983 (Real Property Law § 235-f, L 1983, ch 403). That statute granted rights to persons living with, but unrelated to, the tenant of record. The statute was a response to our unanimous decision in Hudson View Props. v Weiss (59 NY2d 733; see, legislative findings to ch 403, set out as note after Real Property Law § 226-b, McKinney’s Cons Laws of NY, Book 49, at 130). In Hudson View the landlord, by a provision in the lease, limited occupancy to the tenant of record and the tenant’s "immediate family”. When the landlord tried to evict the unmarried heterosexual partner of the named tenant of record, she defended the proceeding by claiming that the restrictive covenant in the lease violated provisions of the State and City Human Rights Laws prohibiting discrimination on the basis of marital status. We held that the exclusion had nothing to do with the tenants’ unmarried status but depended on the lease’s restriction of occupancy to the tenant and the tenant’s "immediate family”. Implicitly, we decided that the term "immediate family” did not include individuals who were unrelated by blood, marriage or adoption, notwithstanding "the close and loving relationship” of the parties.

The Legislature’s response to Weiss was measured. It enacted Real Property Law § 235-f (3), (4) which provides that occupants of rent-controlled accommodations, whether related to the tenant of record or not, can continue living in rent-controlled and rent-stabilized apartments as long as the tenant of record continues to reside there. Lease provisions to the contrary are rendered void as against public policy (subd [2]). Significantly, the statute provides that no unrelated occupant "shall * * * acquire any right to continued occupancy in the event the tenant vacates the premises or acquire any other rights of tenancy” (subd [6]). Read against this background, the statute is evidence the Legislature does not contemplate that individuals unrelated to the tenant of record by blood, marriage or adoption should enjoy a right to remain in rent-controlled apartments after the death of the tenant (see, Rice, The New Morality and Landlord-Tenant Law, 55 NYS Bar J [No. 6] 33, 41 [postscript]).

There is similar evidence of how DHCR intends the section to operate. Manifestly, rent stabilization and rent control are closely related in purpose. Both recognize that, because of the serious ongoing public emergency with respect to housing in the City of New York, restrictions must be placed on residential housing. The DHCR promulgates the regulations for both rent-regulation systems, and the eviction regulations in rent control and the exceptions to them share a common purpose with the renewal requirements contained in the Rent Stabilization Code (compare, 9 NYCRR 2204.6 [d], with 9 NYCRR 2523.5 [b]). In the Rent Stabilization Code, the Division of Housing and Community Renewal has made it unmistakably clear that the definition of family includes only persons related by blood, marriage or adoption. Since the two statutes and the two regulations share a common purpose, it is appropriate to conclude that the definition of family in the rent-control regulations should be of similar scope.

Specifically, the rent-stabilization regulations provide under similar circumstances that the landlord must offer a renewal lease to "any member of such tenant’s family * * * who has resided in the housing accommodation as a primary resident from the inception of the tenancy or commencement of the relationship” (9 NYCRR 2523.5 [b] [1]; see also, 2523.5 [b] [2]). Family for purposes of these two provisions is defined in section 2520.6 (o) as: "A husband, wife, son, daughter, stepson, stepdaughter, father, mother, stepfather, stepmother, brother, sister, nephew, niece, uncle, aunt, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law, son-in-law, or daughter-in-law of the tenant or permanent tenant”.

All the enumerated relationships are traditional, legally recognized relationships based on blood, marriage or adoption. That being so, it would be anomalous, to say the least, were we to hold that the agency, having intentionally limited succession rights in rent-stabilized accommodations to those related by blood, marriage or adoption, intended a different result for rent-controlled accommodations; especially so when it is recognized that rent control was intended to give way to rent stabilization and that the broader the definition of family adopted, the longer rent-controlled tenancies will be perpetuated by sequentially created family members entitled to new tenancies. These expressions by the Legislature and the DHCR are far more probative of the regulation’s intended meaning than the majority’s selective use of a favored dictionary definition.

Finally, there are serious practical problems in adopting the plurality’s interpretation of the statute. Any determination of rights under it would require first a determination of whether protection should be accorded the relationship (i.e., unmarrieds, nonadopted occupants, etc.) and then a subjective determination in each case of whether the relationship was genuine, and entitled to the protection of the law, or expedient, and an attempt to take advantage of the law. Plaintiff maintains that the machinery for such decisions is in place and that appropriate guidelines can be constructed. He refers particularly to a formulation outlined by the court in 2-4 Realty Assocs. v Pittman (137 Misc 2d 898, 902) which sets forth six different factors to be weighed. The plurality has essentially adopted his formulation. The enumeration of such factors, and the determination that they are controlling, is a matter best left to Legislatures because it involves the type of policy making the courts should avoid (see, People v Allen, 27 NY2d 108, 112-113, supra), but even if these considerations are appropriate and exclusive, the application of them cannot be made objectively and creates serious difficulties in determining who is entitled to the statutory benefit. Anyone is potentially eligible to succeed to the tenant’s premises and thus, in each case, the agency will be required to make a determination of eligibility based solely on subjective factors such as the "level of emotional and financial commitment” and "the manner in which the parties have conducted their everyday lives and held themselves out to society” (plurality opn, at 212).

By way of contrast, a construction of the regulation limited to those related to the tenant by blood, marriage or adoption provides an objective basis for determining who is entitled to succeed to the premises. That definition is not, contrary to the claim of the plurality, "inconsistent with the purposes of the rent-control system” and it would not confer the benefit of the exception on "distant blood relatives” with only superficial relationships to the deceased (plurality opn, at 210). Certainly it does not "cast an even wider net” than does the plurality’s definition (plurality opn, at 211, n 1). To qualify, occupants must not only be related to the tenant but must also "[have] been living with the tenant” (see, 22 NYCRR 2204.6 [d]). We applied the "living with” requirement in 829 Seventh Ave. Co. v Reider (67 NY2d 930), when construing the predecessor to section 2204.6 (d), and refused to extend the exception to a woman who occupied an apartment for the five months before the death of her grandmother, the statutory tenant, because she was not "living with” her grandmother. We held that the granddaughter, to be entitled to the premises under the exception, was required to prove more than blood relationship and cooccupancy; she also had to prove an intention to make the premises her permanent home. Since she had failed to establish that intention, she was not entitled to succeed to her grandmother’s tenancy. That ruling precludes the danger the plurality foresees that distant relatives will be enabled to take advantage of the exception contained in section 2204.6 (d) (cf., 9 NYCRR 2523.5 [b] [1], [2]).

Rent control generally and section 2204.6, in particular, are in substantial derogation of property owners’ rights. The court should not reach out and devise an expansive definition in this policy-laden area based upon limited experience and knowledge of the problems. The evidence available suggests that such a definition was not intended and that the ordinary and popular meaning of family in the traditional sense should be applied. If that construction is not favored, the Legislature or the agency can alter it as they did after our decisions in Hudson View Props. v Weiss (59 NY2d 733, supra) and Sullivan v Brevard Assocs. (66 NY2d 489, supra).

Accordingly, I would affirm the order of the Appellate Division.

Judges Kaye and Alexander concur with Judge Titone; Judge Bellacosa concurs in a separate opinion; Judge Simons dissents and votes to affirm in another opinion in which Judge Hancock, Jr., concurs; Chief Judge Wachtler taking no part.

Order reversed, with costs, and case remitted to the Appellate Division, First Department, for consideration of undetermined questions. Certified question answered in the negative.

      . Although the dissent suggests that our interpretation of "family” indefinitely expands the protections provided by section 2204.6 (d) (dissenting opn, at 216), its own proposed standard — legally recognized relationships based on blood, marriage or adoption — may cast an even wider net, since the number of blood relations an individual has will usually exceed the number of people who would qualify by our standard.

      . We note that the concurrer apparently agrees with our view of the purposes of the noneviction ordinance (concurring opn, at 215), and the impact this purpose should have on the way in which this and future cases should be decided.

      . We note, however, that the definition of family that we adopt here for purposes of the noneviction protection of the rent-control laws is completely unrelated to the concept of "functional family,” as that term has developed under this court’s decisions in the context of zoning ordinances (see, Baer v Town of Brookhaven, 73 NY2d 942; McMinn v Town of Oyster Bay, 66 NY2d 544; Group House v Board of Zoning & Appeals, 45 NY2d 266). Those decisions focus on a locality’s power to use its zoning powers in such a way as to impinge upon an individual’s ability to live under the same roof with another individual. They have absolutely no bearing on the scope of non-eviction protection provided by section 2204.6 (d).

      . Also unpersuasive is the dissent’s interpretation of the "roommate” law which was passed in response to our decision in Hudson View Props. v Weiss (59 NY2d 733). That statute allows roommates to live with the named tenant by making lease provisions to the contrary void as against public policy (Real Property Law § 235-f [2]). The law also provides that "occupant’s” (roommates) do not automatically acquire "any right to continued occupancy in the event that the tenant vacates the premises” (§ 235-f [6]). Occupant is defined as "a person, other than a tenant or a member of a tenant’s immediate family” (§ 235-f [1] [b]). However, contrary to the dissent’s assumption that this law contemplates a distinction between related and unrelated individuals, no such distinction is apparent from the Legislature’s unexplained use of the term "immediate family.”

       For example, the definitions found in Black’s Law Dictionary 543 (Special Deluxe 5th ed) are: "Family. The meaning of word 'family’ necessarily depends on field of law in which word is used, purpose intended to be accomplished by its use, and facts and circumstances of each case * * * Most commonly refers to group of persons consisting of parents and children; father, mother and their children; immediate kindred, constituting fundamental social unit in civilized society * * * A collective body of persons who live in one house and under one head or management. A group of blood-relatives; all the relations who descend from a common ancestor, or who spring from a common root. A group of kindred persons * * * Husband and wife and their children, wherever they may reside and whether they dwell together or not” (citations omitted). The term is similarly defined in the other dictionaries cited in the plurality opinion.


author: Titone, J. Alexander, J. Bellacosa, J.

text:
    The People of the State of New York, Respondent, v Miguel Torres, Appellant.
    Argued May 2, 1989;
    decided July 11, 1989

      POINTS OF COUNSEL

      Norman L. Reimer for appellant.
    I. The forceable stop and frisk of appellant, solely on the basis of an anonymous telephone tip, absent any inquiry, absent any fact corroborative of criminality and absent any evasive or suspicious conduct at the scene, was an unlawful search and seizure. (People v Hicks, 68 NY2d 234; People v McRay, 51 NY2d 594; People v Salaman, 71 NY2d 869; People v Davis, 64 NY2d 1143; People v Harrison, 57 NY2d 470; People v De Bour, 40 NY2d 210; Terry v Ohio, 392 US 1; People v Stewart, 41 NY2d 65; People v Russ, 61 NY2d 693; People v Klass, 55 NY2d 821.) II. Even assuming the initial stop was lawful, the ensuing removal from the car and search of appellant’s property, after appellant and his companion were searched with negative results, and without any inquiry or the development of any indicia of criminal or suspicious conduct, was unlawful under both the United States and New York Constitutions. (New York v Belton, 453 US 454; People v Belton, 55 NY2d 49; People v Fernandez, 86 AD2d 416, 58 NY2d 791; People v Brooks, 110 AD2d 571, 65 NY2d 1021; People v De Jesus, 92 AD2d 521; Michigan v Long, 463 US 1032; Adams v Williams, 407 US 143; Chimel v California, 395 US 752; People v De Santis, 46 NY2d 82, 443 US 912; People v Weintraub, 35 NY2d 351.)

      Robert M. Morgenthau, District Attorney (Maryjane C. Shimsky and Norman Barclay of counsel), for respondent.
    The lower courts’ findings that Detectives Turner and Crescente were justified in conducting a stop and frisk involve factual questions supported by the record and therefore beyond this court’s review. (People v De Bour, 40 NY2d 210; People v Stewart, 41 NY2d 65; People v Hicks, 68 NY2d 234; Terry v Ohio, 392 US 1; People v Russ, 61 NY2d 693; People v Benjamin, 51 NY2d 267; People v Brooks, 65 NY2d 1021; People v Clarke, 60 NY2d 568; People v Harrison, 57 NY2d 470; People v Van Luven, 64 NY2d 625.)
   OPINION OF THE COURT

Titone, J.

A police officer acting on reasonable suspicion that criminal activity is afoot and on an articulable basis to fear for his own safety may intrude upon the person or personal effects of the suspect only to the extent that is actually necessary to protect himself from harm while he conducts the inquiry authorized by CPL 140.50 (1). In People v Lindsay (72 NY2d 843, 845), we left open the question whether under article I, § 12 of our State Constitution such an intrusion may extend to items within the passenger compartment of the suspects’ vehicle solely on the theory that "if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and will then have access to any weapons inside” (Michigan v Long, 463 US 1032, 1052). Having been squarely presented with the issue by the parties’ submissions on this appeal, we now answer that question in the negative and hold that, despite the Supreme Court’s approval of such intrusions in Michigan v Long (supra), our more protective State constitutional provisions prohibit them under the circumstances presented here (NY Const, art I, § 12).

At approximately 11:00 a.m. on the morning of October 25, 1985, the police received a telephone tip from an anonymous caller that an individual known as "Poppo,” who was wanted on homicide charges, could be found having his hair cut at a barber shop located at 116th Street and Third Avenue in Manhattan. The suspect was described as a large, six-foot tall Hispanic male wearing a white sweater, driving a black Eldorado and carrying a gun in a shoulder bag.

Arriving at the specified address shortly after this tip was received, two plain-clothes detectives saw defendant leave the barber shop with another man and enter a black Eldorado. Defendant, who fit the anonymous caller’s description, was wearing a white sweater and carrying a green nylon shoulder bag. The detectives approached the car with their guns drawn and, after identifying themselves, ordered the two occupants to exit and immediately frisked each of them. While defendant was still being frisked, the detective who had just patted down defendant’s companion reached into the car and took the shoulder bag from the front seat, where it had been left by defendant. Having immediately noticed its unusual weight, the detective felt the outside of the bag, discerned the shape of a gun and, upon unzipping the bag, discovered a three-inch Rossi revolver and several rounds of live ammunition.

Defendant pleaded guilty to third degree criminal possession of a weapon after his motion to suppress the physical evidence was denied. The suppression court held that the anonymous tip, coupled with the detectives’ on-the-scene observations, was sufficient to justify the detectives’ intrusive actions. On appeal from the judgment of conviction, a divided Appellate Division affirmed (143 AD2d 40). Dissenting alone, the Presiding Justice argued that, regardless of whether the initial frisk was proper, there was no basis for the detectives to reach into the car and remove the shoulder bag, since its presence presented no immediate threat to the officer’s safety (143 AD2d, at 42-44 [Murphy, P. J., dissenting]). We agree with the dissenter’s view and, accordingly, reverse.

On this record, there is room for disagreement as to whether the anonymous tip, coupled with the detectives’ on-the-scene observations, provided support for the finding below that the forcible stop and frisk was reasonable. However, even assuming the reasonableness of the detectives’ conduct in ordering the suspects out of the car and conducting a protective pat-down, once the detectives had frisked the two men, and had thereby satisfied themselves that there was no immediate threat to their safety, there was, as a matter of law, no justification for conducting a further, more intrusive search extending to the removal of personal effects on the front seat of defendant’s car. At most, the detectives may have had a reasonable basis for suspecting the presence of a gun. Their information plainly did not rise to the level of probable cause to search closed containers within the car’s passenger compartment for a weapon (People v Elwell, 50 NY2d 231; see, People v Belton, 55 NY2d 49 [on remand]). Thus, the actions of the detectives may be justified only if the expansive view of the Terry v Ohio (392 US 1) "stop and frisk” procedure that was adopted in Michigan v Long (463 US 1032, supra) is determined to be consistent with the privacy rights guaranteed by our State Constitution (NY Const, art I, § 12).

In concluding that it is not, we note that although the history and identical language of the State and Federal constitutional privacy guarantees (US Const 4th Amend; NY Const, art I, § 12) generally support a "policy of uniformity,” this court has demonstrated its willingness to adopt more protective standards under the State Constitution "when doing so best promotes 'predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens’ ” (People v P. J. Video, 68 NY2d 296, 304 [on remand], quoting People v Johnson, 66 NY2d 398, 407). Accordingly, we have in recent years carved out an independent body of principles to govern citizen-police encounters in a number of specific areas (see, e.g., People v P. J. Video, supra [warrant application requirements in obscenity cases]; People v Bigelow, 66 NY2d 417 [declining to follow "good faith” test outlined in United States v Leon (468 US 897) and Massachusetts v Sheppard (468 US 981)]; People v Johnson, 66 NY2d 398, supra [declining to apply "totality of circumstances” test outlined in Illinois v Gates (462 US 213) to warrantless arrests]; People v Class, 67 NY2d 431 [on remand] [search for vehicle identification number in connection with traffic stop]; People v Gokey, 60 NY2d 309 [warrant-less search incident to arrest]; People v Belton, 55 NY2d 49, supra [search of personal effects within automobile]; People v Landy, 59 NY2d 369 [reiterating Elwell rule]; People v Elwell, 50 NY2d 231, supra [probable cause predicated on informant’s tip]; see also, People v Stith, 69 NY2d 313, 316, n [exclusionary rule as it pertains to inevitable discovery doctrine]).

Our present decision to add to this emerging body of precedent rather than to follow the Federal position was foreshadowed by our analysis in People v Belton (55 NY2d 49, supra). Indeed, it is significant that Michigan v Long (supra), the decision on which the People’s and dissenter’s positions are premised, was, at least in part, an elaboration of the Supreme Court’s analysis in New York v Belton (453 US 454), an analysis which we have declined to follow (see, People v Belton, 55 NY2d 49, supra; see also, People v Gokey, supra).

In Belton, which involved a search of a closed container within the passenger compartment of an arrestee’s automobile, we invoked the State Constitution and held that, under our own "automobile exception” to the rule against warrant-less searches, an automobile’s passenger compartment, and closed containers within that compartment, may be searched "where police have validly arrested an occupant * * * and * * * have reason to believe that the car may contain evidence related to the crime for which the occupant was arrested or that a weapon may be discovered or a means of escape thwarted” (id., at 55). In adopting this position, we expressed our dissatisfaction with the Supreme Court’s position under the Fourth Amendment that such a search is permissible as an incident to a lawful arrest (id., at 52-53; see, New York v Belton, 453 US 454, supra). We noted that the Supreme Court’s position in Belton was a drastic departure from Chimel v California (395 US 752) and that "[o]nce the exception is employed to justify a warrantless search for objects outside an arrested person’s reach it no longer has any distinct spatial boundary” (55 NY2d, at 53). Quoting from then-Judge Wachtler’s opinion in People v Brosnan (32 NY2d 254, 267), we observed that " 'search and seizure law [becomes] uncontrollable when the rubric [is] adopted and the rationale discarded’ ” (55 NY2d, at 53). That observation is equally apt in this context.

A police officer’s entry into a citizen’s automobile and his inspection of personal effects located within are significant encroachments upon that citizen’s privacy interests (cf., People v Class, 63 NY2d 491, 495, revd 475 US 106, adhered to on remand 67 NY2d 431, supra). Under our own long-standing precedent, such intrusions must be both justified in their inception and reasonably related in scope and intensity to the circumstances which rendered their initiation permissible (People v De Bour, 40 NY2d 210, 215). While there are certainly legitimate law enforcement concerns that would justify such an intrusion (see, People v Blasich, 73 NY2d 673; People v Belton, 55 NY2d 49, 55, supra), such concerns were simply not present here.

The need here, as one commentator has noted, was "only to find implements which could be reached by the suspect during the brief face-to-face encounter, not to uncover items cleverly concealed and to which access could be gained only with considerable delay and difficulty” (1 La Fave & Israel, Criminal Procedure § 3.8 [e], at 309; see also, People v Smith, 59 NY2d 454, 458). In this instance, for example, the suspects had already been removed from the car, a permissible intrusion if there was reasonable suspicion of criminality in light of the need to protect the detectives’ safety (Pennsylvania v Mimms, 434 US 106; People v McLaurin, 70 NY2d 779). Further, the suspects had been patted down without incident. At that point, there was nothing to prevent these two armed detectives from questioning the two suspects with complete safety to themselves, since the suspects had been isolated from the interior of the car, where the nylon bag that supposedly contained the gun was located. Any residual fear that the detectives might have had about the suspects’ ability to break away and retrieve the bag could have been eliminated by taking the far less intrusive step of asking the suspects to move away from the vicinity of the car (see, 1 La Fave & Israel, op. cit, at 310). Finally, it is unrealistic to assume, as the Supreme Court did in Michigan v Long (supra, at 1051-1052), that having been stopped and questioned without incident, a suspect who is about to be released and permitted to proceed on his way would, upon reentry into his vehicle, reach for a concealed weapon and threaten the departing police officer’s safety. Certainly, such a far-fetched scenario is an insufficient basis upon which to predicate the substantial intrusion that occurred here (see, People v De Bour, supra).

For all of these reasons, we conclude that the detective’s conduct in reaching into defendant’s car and removing his bag, conduct which revealed the presence of a gun, was not reasonably related to the need to protect the officers’ safety in this street encounter. The detective’s actions were thus improper under article I, § 12 of our State Constitution, and the resulting evidence should have been suppressed.

Finally, addressing the dissent, we are not unmindful of the reality of the day, including the risks faced by police officers in street encounters in the course of discharging their official duties. Nor are we unmindful of the fact that what is at issue here is an anonymous tip. The rule we fashion asks only that, once the officers have taken steps to secure their own physical safety, they limit their intrusion to the inquiry permitted by CPL 140.50. Accordingly, the order of the Appellate Division should be reversed, the evidence suppressed and the indictment against defendant dismissed.

Alexander, J.

(concurring). The majority concedes that on this record reasonable minds may differ over whether the anonymous tip, together with the observations of the detectives at the scene, provided reasonable suspicion for the forceable stop and frisk. Because I believe the actions of the detectives in converging on the defendant with guns drawn and ordering him out of the car without any inquiry or observation of criminal activity were unreasonable and alone justify reversal of defendant’s conviction, I need not and do not reach the issue that divides the court — whether the rationale of Michigan v Long (463 US 1032) should be adopted under our State Constitution. Moreover, I do not understand the majority’s holding to conclude that such a forceable detention — unsupported by observed indicia of criminality — is always reasonable under the Fourth Amendment whenever the noncriminal details of the anonymous tip are confirmed by observations at the scene. Accordingly, I concur in result only.

Bellacosa, J.

(dissenting). I would affirm the Appellate Division order upholding the conviction for criminal possession of a weapon in the third degree. Inasmuch as sufficient evidence was adduced at the hearing to support the lower courts’ findings that the police officers acted on verified detailed information and in their reasonable self-protection, the order of the Appellate Division should be affirmed (see, People v Salaman, 71 NY2d 869, 870-871; People v Jones, 69 NY2d 853, 855).

The court accepts for purposes of addressing the frisk of the bag with the gun that the basic stop and frisk of the person of the defendant were justified by a reasonable suspicion of ongoing criminality and, alternatively, by an articulable basis for the officers to fear for their safety. I thus proceed directly to the safety-based justification for also removing and securing the nylon bag, reportedly containing a gun, from the front seat of the defendant’s car. The finely spun and bifurcated analysis of the majority may work in the cloister, but it does not work and is not warranted for the hard streets. The dangers may be "far-fetched” (majority opn, at 230) to Judges in the protected enclave of the courthouse, but not to cops on the beat.

The conclusion by the reversing Judges is necessarily made as a matter of law, and it thus displaces the undisturbed, supportable lower courts’ findings of over-all reasonableness as to the police action in these circumstances. That conclusion substitutes a disembodied, retrospective judgment that the police officers here lacked a reasonable basis, in light of this particularly dangerous street encounter, to complete their concededly lawful approach and frisk by unrealistically and unnecessarily curtailing the officers’ authority to reach for and secure the reported weapon to insure their own contemporaneous safety (see, People v Salaman, 71 NY2d 869, 870, supra; People v De Bour, 40 NY2d 210, 223; see also, Adams v Williams, 407 US 143; Terry v Ohio, 392 US 1, 27).

The Appellate Division in this case affirmed the denial of suppression on a record establishing that the approach to this defendant was reasonably predicated on a very detailed anonymous tip taken and corroborated in many relevant details by two homicide detectives pursuant to what I accept in law and in the majority’s assumption as a lawful and official obligation to investigate. The tip included the defendant’s sex; ethnicity; large size; specific clothing; current activity; nickname; car make, model and color; that he was located at 116th Street and Third Avenue in Manhattan in a barber shop; that he was carrying a shoulder bag; that the hag contained a gun; and that he was a homicide suspect. The officers’ investigation corroborated all these details except the nickname, suspect status and gun possession. Based upon the number and specificity of the confirmed details and the character of the details yet to be corroborated — an armed homicide suspect named "Poppo” — the officers responded to the scene; saw defendant exit the barber shop with a companion; saw that the defendant was carrying the reported shoulder bag allegedly containing the gun; and saw him get into the black Cadillac Eldorado. Only then did they have an opportunity to approach, which they did with guns drawn. They ordered defendant to step out of the car, where he had only been momentarily seated, and frisked him. The majority nevertheless formalistically and arbitrarily draws a line against reasonable completion of the investigation and precautionary procedures. It condemns the officers for almost simultaneously reaching in to retrieve the shoulder bag from the front car seat where it had been placed only moments before when the suspect entered the car with it. Once the weight and outline of a gun were felt through the bag’s nylon material, the encounter escalated to probable cause and the police searched the bag and found the loaded revolver (see, People v Stewart, 41 NY2d 65, 66; People v De Bour, 40 NY2d 210, supra). Yet, the reversers unreasonably suppress the gun.

A police officer’s concededly lawful duty to investigate includes the right to protect his or her own survival, based commonsensically and reasonably on safety concerns not only for the officer but also for innocent bystanders; this embraces the right to frisk for weapons when the officer has a reasonably record-justified belief that the suspect may be armed (see, People v Salaman, 71 NY2d 869, 870, supra; People v Benjamin, 51 NY2d 267, 270; People v McLaurin, 56 AD2d 80, revd on dissenting opn 43 NY2d 902). A frisk for weapons, in turn, encompasses personal property capable of or reported as concealing a weapon within the suspect’s grabbable reach (see, People v Brooks, 65 NY2d 1021, 1023; People v Davis, 64 NY2d 1143, 1144; People v Pugach, 15 NY2d 65, 69).

The acknowledged duty to investigate, plus the right to inquire, plus the right to frisk authorized in this case, also includes, in my view, the concomitant right to frisk the bag in this case. Three theories support this reasonable action. First; under a realistic view, the present case partakes mostly of a street and only incidentally and fortuitously of a vehicle encounter because of the unity and contemporaneity of defendant’s person and the bag with the gun on the street. This particular bag was part of this person’s aura and, as such, falls flat within the majority’s primary rationale recognizing the legality of the frisk of the person (majority opn, at 231, n 4). As such, this is not a People v Belton (55 NY2d 49) automobile category search and we should not allow a hardening of the search categories to mechanically control and to displace the distinctive analytical composition of this fact pattern. Second, the real threat to these officers, acknowledged by the majority as a proper basis for a frisk of defendant, is in no respect dissipated or attenuated where the container within which a weapon is reportedly secreted is immediately and proximately accessible to the suspect upon reentering or even just reaching into a car (see, People v Lindsay, 72 NY2d 843, 845). Finally, the frisk of the bag was proper under Michigan v Long (463 US 1032). Indeed, "if the police officer possesses a reasonable belief based on 'specific articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous” and that a weapon may be contained within the car, the authorization for the expanded frisk is self-evident (id., at 1049, quoting Terry v Ohio, 392 US 1, 21). The police here are in at least as much danger, if not more, than police throughout this country. Thus, in these particular circumstances, there is no justification for bestowing a different and more onerous and far more dangerous rule of reason, operative only in the State of New York and based only on our State Constitution.

Thus, this case is not controlled by the postarrest, probable cause, automobile exception and container standards of People v Belton, but rather is supported in an indirect way by that case and its most recent progeny (55 NY2d 49, supra, on remand 453 US 454, revg 50 NY2d 447; see also, People v Blasich, 73 NY2d 673). Belton was the occupant of a car stopped for speeding and he was arrested for marihuana possession. Relying on the automobile search exception, we upheld a subsequent warrantless search of the car and of Belton’s jacket, which was on the back seat, even though the occupants had been separated, arrested, searched, removed to a point distant and there was no evidence the arresting officer feared for his safety. The far different fact and legal category scenario here was that of a stop and frisk performed by officers investigating the detailed report of an armed homicide suspect. The predicate for frisking Torres — safety concerns arising from the presence of a weapon in the shoulder bag of a reported homicide suspect — was not increased or diminished by the incidental involvement of the automobile. The removal of the bag from its temporary resting place — not discernibly different from a park bench or car fender or hood for Fourth Amendment purposes or even for our article I, § 12 State Constitution purposes — does not implicate Belton and should not require a higher threshold for preventative protective measures.

Highly detailed information reported to the police and manifestly based on personal knowledge, corroborated in every observable aspect and coupled with yet-to-be confirmed data that the suspect is a violent felon — armed and suspected of murder — provides more than an adequate basis for upholding the reasonableness of the officers’ safeguarding actions (see, People v Lindsay, 72 NY2d 843, supra; People v Russ, 61 NY2d 693, 695; People v Benjamin, 51 NY2d 267, 270, supra; People v Kinlock, 43 NY2d 832; People v McLaurin, 56 AD2d 80, read on dissenting opn 43 NY2d 902, supra; People v Stroller, 42 NY2d 1052). The two courts below have so found and this court has no reasonable basis in law or in fact to conclude contrariwise (People v Harrison, 57 NY2d 470, 477).

I understand and accept that the majority is expressly not deciding but only assuming the legality of the threshold stop and frisk authorization — deeming it valid in order to use a separate dispositional path. To my mind, however, there is little question that firm legal authorities support the legality of the stop and frisk here and, thus, if we were to confront that issue, I would be on the opposite side of the views expressed in Judge Alexander’s separate concurring opinion.

Courts should face the reality of the day and gauge the reasonableness of police officers’ conduct in these circumstances in the full light of that harsh glare (cf., People v La Pene, 40 NY2d 210). It is not reasonable to hold that police officers — thrust into this kind of emergency situation where their official duty obligates them to act and where the difference between life and death is often measured in seconds— must differentiate on the spot between finely spun legal doctrines of authority to frisk based on a multiple choice test of the available categories. This case proves the point and turns the tactical and very dangerous advantage over to the suspected criminal. The officers’ and innocent bystanders’ safety concerns are not alleviated, in law and certainly not in fact, by a frisk of the person only, in this circumstance given the continuing, frighteningly real nature of the threat presented by the accessibility of the gun as soon as the defendant might reenter or reach into the car. The attribution of unreasonableness, of unreliability, and of suspicion in a gun-homicide case condemning police safeguarding actions based on especially detailed anonymous warnings and reports is not founded in empirical data or in sound legal principles. The majority rule allows persons, reasonably suspected of carrying a gun in a bag to avoid a frisk of the container by merely dropping the bag through a car window and unnecessarily leaves the investigating officer holding a different bag of continuing jeopardy.

Whether we dislike generally the police procedure of approaching vehicles with drawn weapons and without announced inquiry in the dangerous setting of cases like this is not determinative because those particular facets, even if viewed as unjustified in hindsight or even if viewed as preferable precautionary procedure — and I do not accept either in this case — do not eliminate the reasonable basis for the police acting as they were supposed to and as they did in their own and in others’ safety, under valid precedents and under all the evidence adduced (see, Michigan v Long, 463 US 1032, supra; People v Lindsay, 72 NY2d 843, supra; People v Salaman, 71 NY2d, 869, 870, supra; People v Chestnut, 51 NY2d 14).

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

Order reversed, etc.

      . Three of the Justices on the Appellate Division panel concurred in a memorandum that questioned the detectives’ right to conduct an immediate frisk, but nevertheless found that it was reasonable for them to have removed the bag from defendant’s car for their own protection (143 AD2d 40, 40-41 [Smith, J., concurring]). Two of the Justices who joined that memorandum, and another Justice who did not, concurred in a separate memorandum, which stated that both the frisk and the touching of the shoulder bag were justified by the anonymous tip and the detectives’ detailed confirmatory observations (143 AD2d, at 41-42 [Rosenberger, J., concurring]).

        . Two of the dissenter’s three theories in support of his conclusion that the detectives’ actions were justified are based either directly on Michigan v Long (463 US 1932) or on our own decision in People v Lindsay (72 NY2d 843), which was, in turn, a simple application of the Michigan v Long holding (see, dissenting opn, at 234). The third "theory” discussed in the dissenting opinion is not so much an independent ground for approving the detectives’ conduct as it is an effort to distinguish prior State precedent suggesting the contrary (see, People v Belton, 55 NY2d 49).

      . The dissenter’s attempt to avoid the implications of Belton by characterizing this case as "partak[ing] mostly of a street and only incidentally and fortuitously of a vehicle encounter” is unpersuasive (see, dissenting opn, at 234). First, if this had been a true street encounter and defendant had simply dropped his bag on a park bench or automobile fender in response to the detectives’ lawful approach, the officers’ right to seize and inspect its contents would have been governed by the entirely separate body of case law involving abandoned property, as to which there is generally no expectation of privacy (see, 1 Ringel, Searches and Seizures § 8.4, at 8-32 — 8-37 [2d ed]; see generally, People v Boodle, 47 NY2d 398). It is precisely because an automobile was involved here that defendant had an expectation of privacy in personal effects not on his immediate person and the need for a constitutionally adequate justification for the intrusion arises. Thus, the presence of an automobile in this encounter is not, as the dissenter suggests an analytically insignificant part of this fact pattern (dissenting opn, at 234). Second, although the ultimate holding in Belton was based on the so-called "automobile exception” to the general rule requiring warrants, the aspect of the Belton analysis on which we rely concerns its insistence upon a logical and conceptual relationship between the property to he seized or searched and, the predicate for that action (55 NY2d, at 52-53). As is evident from our holding in People v Gokey, 60 NY2d 309), that portion of the Belton decision is not limited to automobile encounters, but rather extends to all so-called "grab area” searches.

      . This is not to suggest that the degree of probable cause outlined in People v Belton (55 NY2d 49, 55) is always required as a predicate for conducting a limited intrusion and search of the passenger compartment of the suspect’s car. Indeed, there may well be circumstances where, following a lawful stop, facts revealed during a proper inquiry or other information gathered during the course of the encounter lead to the conclusion that a weapon located within the vehicle presents an actual and specific danger to the officers’ safety sufficient to justify a further intrusion, notwithstanding the suspect’s inability to gain immediate access to that weapon. Of course, in such circumstances, the police officers would have a right to take further steps to protect themselves so that their investigation could be completed without risk to themselves. What we reject here is simply the suggestion that the substantial intrusion involved in even a limited entry into and search of a suspect’s vehicle could be justified purely on the theoretical basis, adopted in Michigan v Long (463 US 1032), that harm could occur after the investigation is terminated and the suspect is permitted to reenter his vehicle.


author: Hancock, Jr., J.

text:
    The People of the State of New York, Appellant, v Anthony R. Behlog, Respondent.
    Argued June 6, 1989;
    decided July 13, 1989

      POINTS OF COUNSEL

      Barry M. Donalty, District Attorney (Randal B. Caldwell of counsel), for appellant.
    I. The court below erred in applying Penal Law § 155.30 as amended retroactively for acts committed prior to the amendment of said statute. (Matter of Mulligan v Murphy, 14 NY2d 223; Ocean & Atmospheric Science v Smyth Van Line, 446 F Supp 1158; People v Oliver, 1 NY2d 152; People v Roper, 259 NY 635; People v Valentin, 129 Misc 2d 365; Matter of Deutsch v Catherwood, 31 NY2d 487; People v Ennis, 94 AD2d 746; United States v Azevedo, 386 F Supp 622; Matter of St Vincent’s Hosp. & Med. Center v New York State Div. of Hous. & Community Renewal, 109 AD2d 711.) II. The proof at trial established that the value of the property taken was in excess of $1,000. (People v Harold, 22 NY2d 443; People v Irrizari, 5 NY2d 142; People v Corbett, 129 AD2d 433.)

      Frank J. Nebush, Jr., Public Defender (Esther Cohen Lee of counsel), for respondent.
    I. The amendment of section 155.30 of the Penal Law to reduce larcenies of property valued at $1,000 or less to class A misdemeanors from class E felonies was an ameliorative statute and should have been applied to appellant, who, although charged with the crime before the amendment took effect, was not tried, convicted or sentenced until after it took effect. (People v Oliver, 1 NY2d 152; Hartung v People, 22 NY 95; Yeaton v United States, 5 Cranch [9 US] 281; United States v Reisinger, 128 US 398; People v Hayes, 140 NY 484; Calder v Bull, 3 Dallas [3 US] 386; People v Roper, 259 NY 170; People ex rel. Pincus v Adams, 274 NY 447; People v Konono, 9 NY2d 924; Matter of Deutsch v Catherwood, 31 NY2d 487.) II. The court below found that the trial evidence proved that the value of the property stolen by respondent was approximately $780 and since value is a pure question of fact, this court is precluded from considering and determining it under CPL 470.35 (2). (People v Harrison, 57 NY2d 470.)
   OPINION OF THE COURT

Hancock, Jr., J.

This appeal presents the question whether the amendment to Penal Law § 155.30 (1), increasing the minimum value of the property stolen required for the crime of grand larceny, third degree (now fourth degree; see, L 1986, ch 515 [raising required minimum to $1,000 from $250]), is an ameliorative change which should be applied "retroactively” to a defendant who had not been sentenced at the time of the amendment’s effective date. We agree with the Appellate Division that it is ameliorative and, accordingly, affirm.

Two security guards observed defendant and his companion shoplifting in a Sears, Roebuck and Company store. Their actions were taped by the store’s surveillance system. In making their getaway from the store, the two dropped the stolen merchandise (five car stereos and nine computer games) in the parking lot. Defendant was arrested several days later and charged under Penal Law § 155.30 (1) with grand larceny in the third degree for stealing property worth more than $250. The felony complaint valued the merchandise at $790.98.

Prior to defendant’s trial, defendant moved to reduce the charge to petit larceny when the amendment raising the minimum value required for grand larceny third (now fourth) to $1,000 took effect. The trial court rejected defendant’s argument that the amendment was ameliorative in nature and that, therefore, the amended statute should be applied here where the claimed value of the property was less than $1,000. At trial, upon the People’s proof that the property stolen had a value in excess of $250, defendant was convicted of grand larceny third under the prior version of Penal Law § 155.30 (1). Defendant moved to set aside the verdict on the ground that the statute as amended should have governed. The court denied his motion.

On appeal, the Appellate Division modified by reducing defendant’s conviction of grand larceny to petit larceny (Penal Law § 155.25) holding that the 1986 amendment is an ameliorative change reducing the punishment and, as such, should be applied retrospectively (142 AD2d 983, 984). We agree.

The general rule is that nonprocedural statutes "are not to be applied retroactively absent a plainly manifested legislative intent to that effect” (People v Oliver, 1 NY2d 152, 157). There is an exception, however, when the Legislature passes an ameliorative amendment that reduces the punishment for a particular crime. In such a case "the law is settled that the lesser penalty may be meted out in all cases decided after the effective date of the enactment, even though the underlying act may have been committed before that date” (id., at 160). The rationale for this exception is that by mitigating the punishment the Legislature is necessarily presumed — absent some evidence to the contrary — to have determined that the lesser penalty sufficiently serves the legitimate demands of the criminal law (id.). Imposing the harsher penalty in such circumstances would serve no valid penological purpose (id.; see also, In re Estrada, 63 Cal 2d 740, 408 P2d 948, 951-952 [following Oliver rule]).

Contrary to the People’s assertion, the "savings clauses” (General Construction Law §§ 93, 94 [allowing prosecution under repealed statutes if the criminal conduct occurred prior to the repeal]) do not affect the ameliorative amendment exception. Under common-law rules, when a statute was amended or repealed, all prosecutions under the old version of the statute — regardless of whether the new version was more or less stringent — were abated (People v Oliver, supra, at 158). In the case where the old statute was replaced by a stricter statute, the Ex Post Facto Clause, of course, barred prosecution under the new version and the common-law rule barred prosecution under the old version (id., at 158-159). The "savings clauses” were enacted principally to prevent the resultant anomaly in such case — of allowing criminals to go unpunished — by specifically providing for continued prosecution under the older more lenient statute (id., at 159). Where, however, the Legislature enacts an ameliorative statute, there is no ex post facto problem. The anomaly which prompted the enactment of the savings clauses does not exist. Absent some valid reason to require the stricter penalty, the "savings clauses” should not be used to mete out the harsher sentence (see, id., at 159-160; see also, Comment, Today’s Law and Yesterday’s Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U Pa L Rev 120, 138-139).

We reject the People’s contention that the amendment here (L 1986, ch 515) is not ameliorative in nature. It reclassifies certain criminal conduct as a class A misdemeanor rather than a class E felony and thereby reduces the penalties that can be imposed. Moreover, the legislative history confirms that the purpose of the amendment was primarily ameliorative. Although the Legislature recognized that reduction in punishment would conserve the additional police resources needed to process a theft as a felony (see, Governor’s Mem, 1986 McKinney’s Session Laws of NY, at 3174, 3175), the main goals of the statute were twofold: (1) to rectify the injustice of punishing small street crimes with a degree of severity equal to or greater than white collar theft involving large sums of money, and (2) to make a needed adjustment for the impact of inflation on the valuation of property by increasing the minimum sum (see, id., at 3174-3175; Mem of State Executive Dept, 1986 McKinney’s Session Laws of NY, at 2960,2961-2962; Mem in support by Senator Dean G. Skelos, Bill Jacket, L 1986, ch 515).

We find no merit in the People’s assertion, relying on Oliver (1 NY2d, at 161, n 3), that the amendment here altered the "definition” of the crime, and that, therefore, it should not be applied "retroactively”. The argument is based on an improper reading of the Oliver opinion. There, in holding that there should be retroactive application of an ameliorative amendment to the Penal Law (L 1948, ch 554) — altering the type of corrective treatment for children under the age of 15 by making them subject to punishment as juvenile offenders rather than as criminals — the court distinguished the situation where a change in the law removes all punishment for certain conduct. In such case, the court noted, the "State may prefer to retain the right to prosecute for the act previously committed in deliberate defiance of the law as it then existed” (1 NY2d, at 161, n 3, supra). This continued State interest in imposing some punishment for outright disregard of a prior law applies only to illegal conduct which is later decriminalized. As in Oliver, such continued State interest in inflicting the harsher penalty under the prior law is not present here. Under the amendment in question, the conduct is still criminal, although it is redefined as petit larceny and punished only as a misdemeanor.

Finally, the People contend that, even if the amended version of the statute applies, defendant’s conviction should be reinstated because there was proof that the items had a value in excess of $1,000. At trial the People introduced proof that the items had an aggregate wholesale value of $788.73 and an aggregate retail value of $1,759.91. The case was argued, however, and submitted to the jury on the theory that they need only find that the property had a value in excess of $250. We may not sustain a conviction obtained under an erroneous theory by speculating as to whether the jury would have convicted under a different one (see, People v Roper, 259 NY 170, 176). The People’s remaining contentions are either unpreserved or without merit.

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

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

Order affirmed.

      . This appeal only involves application of the new law to prosecutions before sentence, not to final cases or cases on direct review. Thus, it does not involve "retroactivity” in the classic sense (see, Matter of Mulligan v Murphy, 14 NY2d 223, 227; Griffith v Kentucky, 479 US 314). However, because the cases use the terms "retroactively” or "retroactive”, for ease of discussion those terms will be used in the opinion.

      . In People v Oliver (1 NY2d 152), the court held that an amendment to the Penal Law (L 1948, ch 554) making persons under the age of 15 subject to prosecution as juveniles rather than as adults, should be applied retroactively to defendant, a 14-year-old boy charged with first degree murder for killing his two-year-old brother, a crime then punishable by death. While the equities' in Oliver were particularly compelling, there is nothing in the opinion to suggest that the stated rationale for applying ameliorative amendments retroactively should not apply outside the context of that case.

      . The Appellate Divisions have split on this issue. The Fourth and Third Departments have held that the Legislature intended the amendment to be ameliorative in nature and should be applied retroactively (People v McCann, 149 AD2d 814; People v Jansen, 145 AD2d 870; People v Behlog, 142 AD2d 983) while the Second Department has held to the contrary (People v Basir, 141 AD2d 745).

      . Thus, the instant amendment is distinguishable from the cases relied on by the People, where the history indicates the purpose of the legislation was other than ameliorative (see, e.g., People v Ahern, 65 NY2d 802, 803-804 [L 1982, ch 492, intended to eliminate confusion about term "concealability”]; People v Archer, 121 AD2d 730, 731-732 [L 1984, ch 673, was intended to relieve court congestion and to have little effect on defendants]).

      . While the Oliver court refers to "altering [the] definition” (1 NY2d, at 161, n 3) of a crime as well as abolishing it, it is evident that the reference means an alteration in definition which results in decriminalization.