author: Per Curiam.

text:
    [657 NE2d 1304, 634 NYS2d 21]
    In the Matter of Patricia D. Pierce, Respondent, v Michael L. Breen et al., Appellants, et al., Respondent.
    Argued October 19, 1995;
    decided October 25, 1995

      POINTS OF COUNSEL

      Paul M. Whitaker, Albany, for appellants.
    I. The failure to hold the meeting of the Democratic County Committee or to file the resulting certificate of nomination within seven days after the primary serves no function in the prevention of fraud. (Matter of Settineri v DiCarlo, 197 AD2d 724, 82 NY2d 813; Matter of Hogan v Goodspeed, 196 AD2d 675, 82 NY2d 710; Matter of Cozzolino v Columbia County Bd. of Elections, — AD2d —, 86 NY2d 704; Matter of Brown v Ulster County Bd. of Elections, 48 NY2d 614.) II. The lower court incorrectly held that petitioner had standing as an objector. III. Petitioner’s objections were untimely. (Matter of Cozzolino v Columbia County Bd. of Elections, — AD2d —, 86 NY2d 704; Matter of Hutchins v Culver, 104 AD2d 533.) IV. The lower court incorrectly held that petitioner was qualified to object to Breen’s nomination, and to commence this proceeding. V. Petitioner lacks standing to question the timing or holding of a meeting of the Democratic County Committee, or the timing of the resulting certificate of nomination. (Matter of Stempel v Albany County Bd. of Elections, 97 AD2d 647, 60 NY2d 801; Matter of Wydler v Cristenfeld, 35 NY2d 719; Matter of Menendez v McNab, 83 AD2d 893, 54 NY2d 769; Matter of Hariton v McNab, 83 AD2d 898, 54 NY2d 769.) VI. The lower court incorrectly held that the proceeding was timely commenced. (Matter of Scaringe v Ackerman, 119 AD2d 327, 68 NY2d 885; Matter of Crable v LeFever, 84 AD2d 584.)

      Thomas J. Spargo, East Berne, for Patricia D. Pierce, respondent.
    I. Time limitations are mandatory. (Matter of Bush v Salerno, 51 NY2d 95; Matter of Carr v New York State Bd. of Elections, 40 NY2d 556; Matter of Hurd v Stout, 97 AD2d 616, 60 NY2d 787.) II. Petitioner is a registered voter with standing. (Matter of Engel v Board of Elections, 143 AD2d 291; Nesci v Canary, 112 AD2d 1056, 65 NY2d 607; Matter of Hudson v Board of Elections, 207 AD2d 508; Matter of DiMaggio v Cicotti, 179 AD2d 1092; Matter of Wilkinson v Lindsay, 47 AD2d 786, 36 NY2d 723.) III. Failure to file a certificate is not an "internal operation” of a political party. (Matter of Stempel v Albany County Bd. of Elections, 97 AD2d 647, 60 NY2d 801; Matter of Wydler v Cristenfeld, 35 NY2d 719; Scoville v Cicoria, 65 NY2d 972; Matter of McHoul v Sellick, 153 AD2d 721.) IV. Objections were properly taken. (Matter of Settineri v DiCarlo, 82 NY2d 813.) V. The lower court’s reliance upon Matter of Cozzolino v Columbia County Bd. of Elections (— AD2d —) is misplaced.
   OPINION OF THE COURT

Per Curiam.

On August 10, 1995, with a quorum assembled, the Schoharie County Democratic Committee (Committee) met and nominated Michael Breen as its candidate for County Court Judge to fill a vacancy that had been created by a recent resignation. The Committee filed a certificate of nomination with the Schoharie County Board of Elections on the following day, August 11, 1995.

Petitioner filed objections on September 22, 1995, contending that Breen’s certificate of nomination had been prematurely filed in violation of Election Law §§ 6-116 and 6-158 (6). Election Law § 6-116 provides that "[a] party nomination * * * shall be made, after the day of the primary election.” This year’s primary election was held on September 12, 1995. Election Law § 6-158 (6) provides that the last day for filing a party nomination shall be "not later than seven days after the fall primary election,” i.e., September 19, 1995. The Committee did not reconvene, nor refile the certificate of nomination during this seven-day period.

This proceeding was commenced on September 25, 1995. Supreme Court found that the "mistake of meeting and filing the certificate of nomination prematurely” was an "innocent error” and should not "serve to abort Mr. Breen’s candidacy,” and therefore dismissed the petition. The Appellate Division reversed, granted the petition and struck Breen from the ballot. Two Justices dissented and this appeal as of right ensued (CPLR 5601 [a]). We now affirm.

Breen argues that pursuant to Election Law § 6-154 (2), objections to any certificate of nomination must be filed within three days of filing and a proceeding must be commenced within the time limits provided under Election Law § 16-102 (2), i.e., within 10 days after the filing of the certificate, and therefore petitioner’s challenge, commenced six weeks from the date of filing, renders this proceeding untimely. He further argues that the premature filing was, at best, an "innocent violation” and invalidation of Breen’s certificate of nomination would totally deprive the voters of any choice in the forthcoming general election.

Petitioner counters that the objections and the petition were timely filed; that this is not the type of case the Election Law Reform Act of 1992 (L 1992, ch 79, § 33) was designed to avoid; that this is a timetable case and failure to adhere to the statutorily prescribed window mandates granting the petition, invalidation of the nomination certificate and an affirmance herein. We agree.

Election Law § 6-154 (2) provides that "objections shall be filed * * * within three days after the filing of the * * * certificate to which objection is made, or within three days after the last day to file such a certificate, if no such certificate is filed.” Here, the filing of the objections occurred on September 22, 1995, three days after the last day to file the certificate of nomination, and we find they were properly taken and this action was timely commenced.

The premature August filing of the certificate of nomination, not in compliance with the strict election timetable, did not constitute a timely filing as contemplated by Election Law §§ 6-116 and 6-158 (6) (see, Matter of Bush v Salerno, 51 NY2d 95; Matter of Carr v New York State Bd. of Elections, 40 NY2d 556). To find otherwise not only would dilute the integrity of the election process, but would jeopardize enforcement of the mandatory filing requirements set forth in the Election Law. Here, it is clear that the error was more than a "mere technicality.” There is simply no valid explanation for the premature meeting and filing. The fact that the composition of the Committee would not be altered at the primary is of no consequence. Nor is the absence of a showing of fraud of any significance. The Election Reform Act does not alter the strict filing provisions of Election Law § 1-106. Thus, the failure to file "within the time prescribed * * * shall be a fatal defect.”

Appellants’ remaining arguments are without merit.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in Per Curiam opinion.

Order affirmed, without costs.


source: Caselaw Access Project

author: Chief Judge Kaye.

license: Public Domain

text:
    [657 NE2d 1305, 634 NYS2d 22]
    The People of the State of New York, Respondent, v Frank Schaffer, Appellant.
    Argued September 21, 1995;
    decided October 26, 1995

      POINTS OF COUNSEL

      Gibson, Dunn & Crutcher, New York City (Mitchell A. Karlan and Robert E. Malchman of counsel), for appellant.
    The court below erred as a matter of law by reversing the County Court’s dismissal of the indictment in the furtherance of justice and by requiring appellant’s commitment. (Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662; People v Floyd J, 61 NY2d 895; People v Saunders, 161 AD2d 611, 76 NY2d 896; Matter of Lorie C, 49 NY2d 161; Stillwell v Kansas City, Mo. Bd. of Police Commrs., 872 F Supp 682; Bombrys v City of Toledo, 849 F Supp 1210; Coleman v Zatechka, 824 F Supp 1360; Jackson v Indiana, 406 US 715; Matter of Torsney [State Comrnr. of Mental Hygiene — Gold], 47 NY2d 667; Matter of Kesselbrenner v Anonymous, 33 NY2d 161.)

      James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Susan I. Braitman of counsel), for respondent.
    The court below was correct in reversing the County Court’s order which dismissed the indictment. (Drope v Missouri, 420 US 162; Pate v Robinson, 383 US 375; Lokos v Capps, 625 F2d 1258, 631 F2d 732; People v Smyth, 3 NY2d 184; Dusky v United States, 362 US 402; People v Swallow, 60 Misc 2d 171; People v Vallen, 128 Misc 2d 397; People v Christopher, 65 NY2d 417, 1054; People v Soto, 68 Misc 2d 629.)
   OPINION OF THE COURT

Chief Judge Kaye.

Were felony charges against a defendant who lacked the capacity to understand the proceedings against him or assist in his own defense properly dismissed in the furtherance of justice pursuant to CPL 210.40? Because New York’s criminal fitness-to-proceed statute (CPL art 730) limits the circumstances in which courts can dismiss indictments against defendants found incompetent to stand trial, we agree with the Appellate Division that an "interest of justice” dismissal was not authorized.

In late May 1991, defendant’s 13-year-old granddaughter, who was born with cerebral palsy and functioned at a first- or second-grade level, told her parents that "Grandpa touched me in my privates.” At the time of this conversation, defendant and his wife had been living with his daughter, her husband and their four children. After further inquiry of the granddaughter, her parents and teachers, as well as a police investigation over the course of the next year, a felony complaint was filed in January 1992 followed by a two-count indictment handed down on April 8, 1992 charging defendant with the class D felony of sexual abuse in the first degree (Penal Law § 130.65). The indictment alleged that defendant subjected his granddaughter to sexual contact by touching her vagina during the hours between Christmas Eve and Christmas Day in 1988 and again in 1989.

Defendant, who was then 72 years old and had suffered a stroke six years earlier, underwent two psychiatric examinations on January 27, 1992 and again on February 24, 1993 to determine his fitness to proceed (CPL 730.30, 730.20). The psychiatrists who jointly examined him on each occasion diagnosed defendant as suffering from an organic mental disorder known as "post stroke dementia” characterized by significant memory loss and a pronounced speech impediment. Though able to process and understand information presented to him, defendant was unable to respond by communicating or verbalizing his thoughts. As the trial court explained, "defendant faces the dilemma of being unable to assist in his defense although he understands the charges against him.” Noting some "mild improvement” in his expressive aphasia or ability to name objects at the second examination, the psychiatrists nevertheless concluded that given the nature of defendant’s brain dysfunction, "there appears little evidence that there will be a probability of substantial improvement.”

As a result of this diagnosis, defendant filed a motion seeking, among other things, dismissal of the indictment in the furtherance of justice pursuant to CPL 210.40. Defendant alternatively sought a determination that, because he was unlikely to become competent in the foreseeable future, he must either be released from the custody of the Commissioner of Mental Health or civilly committed pursuant to Mental Hygiene Law article 9 (see, Jackson v Indiana, 406 US 715).

Though conceding that defendant was not fit by reason of a mental disease or defect to proceed at that time, the People nevertheless opposed the motion, arguing that courts lack the authority as a matter of law to dismiss indictments pursuant to CPL 210.40 subsequent to a finding of incompetency. The People additionally contested the defendant’s evidence that there was no substantial probability he would attain the capacity to proceed in the future.

At the conclusion of a three-day evidentiary hearing in April 1993 during which defendant, various family members and the two psychiatrists who had examined defendant testified (see People v Clayton, 41 AD2d 204), the trial court, determining that it had the legal authority to do so, considered the specific statutory factors listed in CPL 210.40 and dismissed the indictment in the furtherance of justice. In light of the dismissal and defendant’s release from custody, the court made no finding as to whether defendant was entitled to relief under Jackson v Indiana (supra), simply noting "the poor prognosis that [defendant’s] memory loss and speech impediment will ever improve in the future.”

The Appellate Division reversed, concluding that because defendant was found to be incapacitated, the trial court was required to issue an order committing him to the custody of the Commissioner of Mental Health and thus the remedy of dismissal of the indictment pursuant to CPL 210.40 was unavailable. Citing People v Saunders (161 AD2d 611), the court held that "the Legislature did not intend CPL 210.40 to be invoked under these circumstances.” (207 AD2d 421-422.) We agree.

Because the issue presented relates solely to the scope of a trial court’s statutory authority to dispose of felony cases involving defendants found unfit to proceed to trial, we begin analysis with the pertinent statutory provision, CPL article 730 ("Mental Disease or Defect Excluding Fitness to Proceed”).

If, at any time after arraignment and before imposition of sentence, a trial court suspects that a defendant may not be fit to proceed, the court must issue an order directing the defendant to undergo a psychiatric examination to determine whether he or she is an "incapacitated person” (CPL 730.30). An "incapacitated person,” according to the statute, is "a defendant who as a result of a mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense” (CPL 730.10 [1]). Once a defendant is found to be incapacitated, the court "must” issue an order committing the defendant to the custody of the Commissioner of Mental Health for a period either not to exceed 90 days (misdemeanors) or an initial period not to exceed one year, renewable for two-year periods thereafter (felonies) (see, CPL 730.50 [1]).

Article 730 speaks of four situations in which an indictment against a defendant found to be incapacitated can be dismissed. Because the four situations were designed to balance the sensitive policy issues at stake, including the welfare of the mentally ill accused and concerns about public safety, we hold that CPL 210.40 — an altogether separate provision of the Criminal Procedure Law — is not available as an additional, fifth basis for dismissal. Allowing dismissals pursuant to CPL 210.40 in these circumstances would be incompatible with the careful, comprehensive scheme set out in article 730.

The first instance where article 730 provides for the dismissal of an indictment is limited to defendants charged with nonfelony offenses. Once a court is satisfied that a defendant so charged is incapacitated, the statute requires dismissal of the indictment (CPL 730.50 [1]). Such dismissal "constitutes a bar to any further prosecution of the charge or charges contained in such indictment” (id.; see also, CPL 730.40 [2] [providing for dismissal of indictment for proceedings in local criminal courts]). Incapacitated defendants charged with misdemeanors are thus entitled to dismissal upon a finding of incompetency. Significantly, the statute fails to provide the same option for individuals charged with felonies, signalling the Legislature’s desire for greater restrictions against the release of persons accused of more serious crimes.

The second type of dismissal provided for by article 730 occurs when a defendant who has not yet attained competency has been in the custody of the Commissioner for a period totalling two thirds of the maximum term of imprisonment for the highest class felony charged in the indictment. In such circumstances, the order committing the defendant "shall terminate for all purposes” and "the court must dismiss the indictment” (CPL 730.50 [4], [5]). Thus, a defendant cannot— based solely on incompetency — be held for a period longer than two thirds of the maximum sentence (in the absence of a subsequent civil commitment). This provision was added to the statute two years after a 1968 report decrying the fact that the New York statute then governing the commitment of mentally ill defendants "made it possible for an uneducated 19-year-old boy to have been accused of committing a burglary in Brooklyn in 1901 and * * * to have been confined beyond his 83rd birthday in a maximum-security institution” (Special Committee to Study Commitment Procedures and Law Relating to Incompetents, Association of Bar of the City of NY, Mental Illness, Due Process and the Criminal Defendant, at 72 [1968] [hereinafter Mental Illness and the Criminal Defendant]).

Article 730 of the Criminal Procedure Law specifies yet a third situation where indictments may be dismissed in that it allows an incapacitated defendant in the custody of the Commissioner of Mental Health to "make any motion authorized by this chapter which is susceptible of fair determination without his personal participation” (CPL 730.60 [4]). CPL 730.60 (4), however, is plainly limited to purely legal motions such as challenges going to the sufficiency of the indictment or the jurisdiction of the court — proceedings where counsel presses legal positions to which the defendant has nothing of value to contribute (e.g., People v Williams, 85 NY2d 945), not to motions to dismiss indictments pursuant to CPL 210.40.

That CPL 730.60 (4) was intended to deal primarily with challenges to the sufficiency of indictments is evidenced in part by the last sentence of the section, which refers to instances where "the court enters an order dismissing the indictment and does not direct that the charge or charges be resubmitted to a grand jury ” (id. [emphasis added]). The 1968 report presaging the addition of this subdivision urged passage of a provision authorizing courts, while the defendant was still incompetent, "to entertain a well-founded motion by counsel challenging the sufficiency of the indictment” or "showing] that the statute of limitations has lapsed prior to the indictment” (Mental Illness and the Criminal Defendant, at 109).

A hearing conducted pursuant to CPL 210.40 is not a circumstance where a defendant would have nothing of value to contribute. The "interest of justice” statute requires courts to "examine and consider” specific statutory factors such as the "evidence of guilt, whether admissible or inadmissible at trial” (CPL 210.40 [1] [c]) and the "history, character and condition of the defendant” (CPL 210.40 [1] [d]). It is worth noting in this regard that the defendant actually testified during the proceedings, thereby contributing to the court’s ultimate determination.

The fourth and final reference to dismissal of indictments in article 730 is contained in CPL 730.60 (5), which provides that a court may, "upon motion of the defendant, and with the consent of the district attorney” dismiss the indictment if the "defendant is a resident * * * of another state or country and * * * will be removed thereto upon dismissal” or "the defendant has been continuously confined in the custody of the commissioner for a period of more than two years.” Significantly, in either situation, before granting a dismissal,

"the court must be further satisfied that dismissal of the indictment is consistent with the ends of justice and that [continued] custody of the defendant by the commissioner * * * is not necessary for the protection of the public and that care and treatment can be effectively administered to the defendant without the necessity of such [commitment]” (CPL 730.60 [5]).

A court dismissing an indictment under these circumstances must "set forth in the record the reasons for such action” (id.).

Given the specificity of the procedures contained in the above provision, it is plain that CPL 730.60 (5) was intended by the Legislature to be the exclusive remedy for incompetent defendants seeking dismissal of the charges against them for reasons "consistent with the ends of justice” (see, People v Saunders, 161 AD2d 611, 612, supra; Matter of Negro v Dickens, 22 AD2d 406, 412). In fact, in its salient features, CPL 730.60 (5) resembles CPL 210.40. Both statutes, for example, require the trial court to consider the "protection of the public” (compare, CPL 210.40 [1] [h]) as well as the "care and treatment” of the defendant (compare, CPL 210.40 [1] [d]), and both mandate that the court state its reasons for granting such a dismissal on the record (compare, CPL 210.40 [3]).

Importantly, where an article 730 "consistent with the ends of justice” dismissal differs from an "interest of justice” dismissal under CPL 210.40 is the two additional requirements CPL 730.60 (5) imposes: that the defendant has already been in the custody of the Commissioner for two years, and that the District Attorney consent to the motion. This was one area where the Legislature declined to accept the recommendations of the 1968 Report (see, Mental Illness and the Criminal Defendant, at 120). In fact, a bill that would have eliminated the requirement of the District Attorney’s consent was recalled from the Governor after passage in 1957 as a result of concerns about public safety (see, 1957 Legis Bulletin No. 108 [noting that proposed bill was "technically defective in that it gives the district attorney no standing to object to such dismissal” in cases involving defendants "who may be charged with the most serious crimes”]; Matter of Negro v Dickens, 22 AD2d, at 409).

Our reading of the statute is further reinforced by the language of CPL 730.60 (6), amended significantly in 1980 and 1981, which requires the Commissioner to provide written notice to the District Attorney and the police, among others, prior to the discharge, release or even furlough of an incompetent defendant (CPL 730.60 [6] [a]). As explained in the Practice Commentaries, the purpose of this notice is to make "it more difficult for persons committed [under article 730] to be released or have a change in status” (Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 730.60, at 502; see also, CPL 730.60 [6] [c] [authorizing District Attorney to apply for continued retention of incompetent defendant found to be "a danger to himself or others” for six months after maximum allowable commitment period has expired]).

Defendant, citing Jackson v Indiana (406 US 715, supra), argues that to the extent that the statutory scheme established in article 730 does not permit the granting of a CPL 210.40 dismissal to an accused charged with a felony who has been found incapacitated, such a dismissal is constitutionally mandated in the circumstances presented here where the prognosis for any significant improvement in defendant’s mental condition is poor.

In Jackson, the Supreme Court held "that a person charged * * * with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future” (406 US, at 738). Reading — as we must — Jackson’s constitutional requirements into article 730, a defendant in this State adjudicated incompetent is entitled to be released or civilly committed pursuant to article 9 of the Mental Hygiene Law upon a finding that the defendant’s chances of achieving competency are "minimal” or "nonexistent” (406 US, at 727). To the extent the Appellate Division concluded that it was premature, at defendant’s initial CPL 730.30 competency hearing, for the court to consider defendant’s motion to be released under Jackson, that ruling was in error. The vindication of a permanently incompetent defendant’s constitutional rights under Jackson v Indiana cannot be compelled to await the statutory commitment periods provided for in article 730 (see, CPL 730.50 [1]).

However, a defendant who has been released as a result of Jackson is not automatically entitled to a dismissal of the charges. The granting of Jackson relief per se does not affect the pendency of the indictment (see, Jackson v Indiana, 406 US, at 739-741). Indeed, courts of this State that have had occasion to release defendants under Jackson have declined to dismiss the pending charges as part of that relief (see, e.g., People ex rel. Anonymous v Waugh, 76 Misc 2d 879, 882; People v Anonymous, 76 Misc 2d 884, 886; People v Villanueva, 139 Misc 2d 751, 758).

Though an incompetent defendant who is unlikely to achieve competency in the future may have a constitutional right not to be held in custody based solely on the fact that a Grand Jury has issued an indictment, such defendant does not have a corollary right to dismissal of the charges given the public’s countervailing interest in the court’s continuing jurisdiction over the defendant to monitor the defendant’s condition and location. (See, e.g., Lewin, Mental Illness and the Criminal Law, 24 Syracuse Law Rev 75, 77 [1973] [noting that article 730 "stress(es) the need for treatment (of the defendant) (as well as) protection of the public as the criteria for long term commitment without dismissal of the charges”; emphasis added]; Bellacosa, 1981 Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 730.60, at 303 [noting that heart of 1980-1981 revisions to CPL 730.60 [6] was "preservation of judicial control over what happens to * * * incapacitated persons”]).

Here, though evidence was introduced at the three-day hearing as to whether defendant’s mental condition satisfied Jackson v Indiana, the court’s dismissal of the indictment pursuant to CPL 210.40 made final determination of that issue unnecessary. Should the trial court determine that there is no substantial probability that defendant will attain the capacity to understand the proceedings against him or to assist his attorneys in the foreseeable future — an issue the People contest — the defendant will be entitled to either be released or civilly committed as set forth above. Finally, defendant’s remaining contention that a dismissal of the indictment is mandated by the provisions of the Americans with Disabilities Act (42 USC § 12101 et seq.) lacks merit.

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

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed.

       CPL 210.40, entitled "Motion to dismiss indictment; in furtherance of justice,” provides in pertinent part that: "An indictment * * * may be dismissed in furtherance of justice * * * even though there may be no basis for dismissal as a matter of law [because] of some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant * * * would constitute or result in injustice.”


author: Per Curiam. Levine, J.

text:
    [657 NE2d 1311, 634 NYS2d 28]
    In the Matter of James T. Curry, Appellant, v Morrison J. Hosley, Jr., et al., Respondents.
    Argued October 24, 1995;
    decided October 26, 1995

      POINTS OF COUNSEL

      Hancock & Estabrook, LLP, Syracuse (Alan J. Pierce and Patrick M. Connors of counsel), for appellant.
    I. Only attorneys admitted to practice law in the State are eligible for and may hold the position of District Attorney. (Matter of Schumer v Holtzman, 60 NY2d 46; People v Carter, 77 NY2d 95; People v Pizzaro, 146 Misc 2d 527; People v Jackson, 145 Misc 2d 1020; Matter of Sposato [Graham], 180 Misc 933, 940; El Gemayel v Seaman, 72 NY2d 701; Spivak v Sachs, 16 NY2d 163.) II. Respondent, as a matter of law, is disqualified from exercising the powers and performing the duties of District Attorney and thus is ineligible to be a candidate for the office. (People v Purdy, 154 NY 439.)

      Muller and Muller, Glens Falls (Robert J. Muller of counsel), for Morrison J. Hosley, Jr., respondent.
    I. Respondent is not attempting to practice law by seeking the office of Hamilton County District Attorney and will not be engaging in the unauthorized practice of law when he assumes the office. (People v Carter, 77 NY2d 95, 499 US 967.) II. Licensed attorneys have no monopoly on intellect or the exercise of sound judgment. III. Absent a clear statutory or constitutional requirement that a District Attorney must be a lawyer, this Court should not abridge the rights of the voters to choose. (Matter of Hosley v Curry, 85 NY2d 447.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (David J. Fried of counsel), for The New York State District Attorneys Association, amicus curiae.

    I. It is settled law that only a lawyer may perform the functions of the office of District Attorney. (Matter of Sposato [Graham] 180 Misc 933; People v Carter, 77 NY2d 95; People v Jackson, 145 Misc 2d 1020; People v Pizzaro, 146 Misc 2d 527; People v Di Falco, 44 NY2d 482; People v Rosario, 9 NY2d 286, 368 US 866; Brady v Maryland, 373 US 83; United States v Agurs, 427 US 97; People v Simmons, 36 NY2d 126; People v Fappiano, 134 Misc 2d 693.) II. Matter of Drake v McAfee, based upon facts found in 1963, does not control in the absence of current findings of fact. III. Matter of Drake correctly recognized that a District Attorney must be a lawyer, but wrongly failed to apply the rule to Hamilton County.
   OPINION OF THE COURT

Per Curiam.

Petitioner (James Curry), the Republican Party candidate, instituted this Election Law § 16-102 proceeding to remove respondent (Morrison Hosley) as a candidate on the November 7, 1995 ballot for the office of Hamilton County District Attorney. The sole issue before us is whether New York law permits Hosley, who is not an attorney, to serve as the District Attorney. We conclude that the legal nature of the important public responsibilities entrusted to the District Attorneys of this State requires that such individuals be lawyers admitted to practice.

Unique historical circumstances have led to this appeal. In counties throughout New York State, the District Attorney is an attorney and indeed the District Attorney of Hamilton County — a rural upstate county with a population of approximately 5,000 — has for the last three decades been an attorney. Petitioner himself (the incumbent) is an attorney. For more than 100 years between the 1830’s and 1960’s, however, the office of District Attorney of Hamilton County was ordinarily held by nonlawyers. Indeed, the last time the Court considered the legal issue presented was in 1963, also in the context of an election appeal challenging a nonattorney candidate for that office (Matter of Drake v McAfee, Sup Ct, Hamilton County, Aug. 17, 1963, affd without opn 19 AD2d 784 [Aug. 30, 1963], affd without opn 13 NY2d 878 [Aug. 30, 1963]).

Notwithstanding this uncommon state of affairs in Hamilton County, it cannot be disputed that "the District Attorney is a constitutional officer chosen by the electors of a county” (Matter of Schumer v Holtzman, 60 NY2d 46, 50). The Constitution speaks of elections not for the office of "county prosecutor” or "government solicitor,” but instead for the office of "district attorney” (NY Const, art XIII, § 13 [a] [emphasis added]). The Constitution further states that "[a]ny district attorney who shall fail * * * to prosecute a person charged with the violation * * * of any provision of this article which may come to his knowledge, shall be removed from office” (NY Const, art XIII, § 13 [b] [emphasis added]). These provisions indicate the use of the word "attorney” in its commonly understood sense (see, Matter of Sposato [Graham], 180 Misc 933, 936; People v Carter, 77 NY2d 95, 108 [Titane, J., dissenting]) — an attorney-at-law and an officer of the court qualified to prosecute and defend legal actions on behalf of clients, bound by rules and principles of professional ethics and subject to internal processes of attorney discipline (see, Judiciary Law § 90; Code of Professional Responsibility EC 3-3). Unlike the many attorneys who represent the interests of private citizens, the District Attorney’s client is the people of the State of New York (see, Matter of Schumer v Holtzman, 60 NY2d 46, 51, supra).

Moving beyond the language of the Constitution, our conclusion that respondent, as a nonlawyer, is not eligible for election to the position of Hamilton County District Attorney is reinforced by the existence of the various statutory provisions delineating the duties of District Attorneys in this State and granting the District Attorney broad "discretion to investigate, initiate, [and] prosecute” crimes (People v Zimmer, 51 NY2d 390, 394). Indeed, by virtue of this discretion, a District Attorney may have "more control over individuals’ liberty and reputation * * * than * * * any other public official” (id.).

County Law § 700 (1) ("District attorney; powers and duties”), for example, states that "[i]t shall be the duty of every district attorney to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he shall have been elected” (see also, County Law § 927 ["General duties of district attorneys”]). Other statutes provide that the District Attorney is the legal advisor to the Grand Jury charged with submitting evidence to it (CPL 190.25 [6]; 190.55 [2]; see also, People v Di Falco, 44 NY2d 482, 487 [noting "breadth and importance of the duties placed upon the District Attorney in Grand Jury proceedings”]) and that applications for eavesdropping or video surveillance warrants must be made by the District Attorney to the court (CPL 700.05 [5]).

In an attempt to avoid the difficulties inherent in a nonlawyer’s performance of these important legal functions, respondent argues that a 1911 statute would authorize him, if elected, to appoint attorneys from neighboring counties and delegate his legal work — including seeking indictments and trying cases — to them (see, L 1911, ch 665). Because the statutory duties of the District Attorney are "fundamental responsibilities” of the office, however, they may not be wholly transferred to others (Matter of Schumer v Holtzman, 60 NY2d 46, 53, supra). Though the elected District Attorneys in this State are certainly entitled to employ other lawyers to serve as assistants under their supervision (see, County Law §§ 702, 825, 930), allowing the nonattorney District Attorney of Hamilton County to carry out his statutory responsibilities by hiring assistants to prosecute crimes on his behalf — without the safeguards inherent in the District Attorney’s exercise of his own professional judgment — would constitute the kind of wholesale transfer of public responsibility we cautioned against in Matter of Schumer.

Such sweeping delegation might even constitute a violation by the District Attorney’s assistant of the ethical guidelines that govern the professional conduct of attorneys. Specifically, County Law § 702 (2) provides that "[t]he assistant [District Attorney] shall perform such duties pertaining to the office as may be directed by the district attorney.” The Code of Professional Responsibility, however, prohibits lawyers from helping nonlawyers in the practice of law (Code of Professional Responsibility DR 3-101 [22 NYCRR 1200.16]),. from forming "partnerships” with nonlawyers (Code of Professional Responsibility DR 3-103 [22 NYCRR 1200.18]), and discourages them from "submitting to the control of others in the exercise of * * * judgment” (Code of Professional Responsibility EC 3-3).

Respondent’s reliance on People v Carter (77 NY2d 95, supra) is similarly misplaced. In that case, we rejected the argument that the convictions of two criminal defendants were fatally defective because Daniel Penofsky, the Assistant District Attorney who presented their cases to a New York City Grand Jury, had never been admitted to the Bar, though he was a law school graduate with 16 years’ experience. The focus in Carter was whether the fact that the defendants were prosecuted by a nonadmitted prosecutor deprived them of their right to the integrity of the Grand Jury process and to due process of law. On the facts, we held that the convictions were valid. Nevertheless, we explicitly pointed out that "[n]o one disputes that defendants should have been prosecuted for these felonies by an Assistant District Attorney who was duly admitted to practice” (id,., at 106). Additionally, we cited the very American Bar Association Criminal Justice Standard which recommends that "[t]he prosecution function * * * be performed by a * * * lawyer subject to the standards of professional conduct and discipline.” (ABA Standards for Criminal Justice, Prosecution Function, standard 3-2.1 [3d ed 1993].)

Thus, even though we may have stated broadly in Carter that "neither the Constitution nor any statute requires that a District Attorney or an Assistant District Attorney be an admitted lawyer” (77 NY2d, at 105), we did not consider the precise question presented here — namely, whether it is necessary for a prosecutor to have any training as a lawyer at all, or more particularly, whether training as a lawyer and admission to the Bar are necessary criteria for eligibility for the elected office of District Attorney. Now reaching that question, we conclude that they are.

In light of the above, to the extent that our 1963 affirmance without opinion of a trial court decision allowing Edward Galusha, a nonattorney, to run for Hamilton County District Attorney in Matter of Drake can be read to have created a special exception for Hamilton County, that decision is overruled. The possible practical difficulties that might ensue given the few admitted lawyers in Hamilton County cannot override the important legal principle, applicable throughout the State, that the nature of the District Attorney’s duties and responsibilities to the public require the officeholder to be an attorney.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the judgment of Supreme Court reinstated.

Levine, J.

(dissenting). I respectfully dissent. There have been no fundamental changes in the law nor in the status of Hamilton County since 1963 that warrant a departure from the settled principles of stare decisis.

When we affirmed the denial of a petition to remove a nonlawyer candidate from the ballot for District Attorney in Hamilton County in Matter of Drake v McAfee (13 NY2d 878), there were, according to the Supreme Court decision in that case, six attorneys residing in Hamilton County eligible for the office of District Attorney. Of those six, three were already holding public office. According to the record in this case, there are currently eight attorneys residing in Hamilton County, three of whom already hold public office. On these facts, it cannot be said that there no longer exists a "dearth” of qualified attorney candidates willing to serve as District Attorney in Hamilton County. Petitioner argues that the fact that the position of District Attorney has been filled by a lawyer since 1966, whereas nonlawyers filled this position from the 1830s until 1941 and again from 1944 to 1966, provides evidence that the previous sui generis nature of that County no longer exists. However, that the electorate of Hamilton County has most recently chosen to elect a District Attorney who is a lawyer does not change the significance of the statistics with which we are presented. Because there are so few lawyers in the County, if the electorate were limited to candidates who are lawyers, there is a substantial likelihood that they would not have two candidates to choose from, thus effectively eliminating electoral choice. Indeed, the distinct possibility continues to exist that at some point in the future there will be no qualified attorney in the County willing to run for or serve as District Attorney, thereby depriving the County of a constitutional officeholder.

Likewise, the fundamental duties of the District Attorney— to conduct all prosecutions (County Law § 700 [1]) and to act as legal advisor to the Grand Jury (CPL 190.25 [6]) — were well established before Drake was decided. Subdivision (1) of County Law § 700 was enacted in essentially the same form in 1908 (L 1908, ch 262, § 1). Subdivision (6) of CPL 190.25 is derived from sections 262 to 264 of the Code of Criminal Procedure, enacted in 1881. Similarly, it was just as illegal for a layperson to practice law in 1963 as it is today. Judiciary Law § 478, enacted in 1965, is derived from a provision of the former Penal Code enacted in 1898 (L 1898, ch 165, § 4).

Drake was decided on practical considerations and in recognition of the sui generis nature of Hamilton County. Nothing has changed since then that warrants a different result in this case. Nor does our decision in Matter of Schumer v Holtzman (60 NY2d 46) require a different result. There we recognized that it is improper for the District Attorney to divest herself of ultimate responsibility and accountability for decisions of whom, whether and how to prosecute (id., at 53). However, it does not follow that it is also improper for a duly elected District Attorney (whether a lawyer or layperson) who retains responsibility and accountability for these decisions, to make them in consultation with a legal advisor. Moreover, by enacting chapter 665 of the Laws of 1911, the Legislature recognized that the District Attorney of Hamilton County would have need to delegate his or her purely legal functions to a licensed attorney and that such assistant, given the dearth of lawyers in the County, could be a resident of either Hamilton County or any adjoining county.

To the extent there might be a technical violation of the Code of Professional Responsibility if a licensed Assistant District Attorney takes direction from a nonlawyer District Attorney on the issue of whether to prosecute, we have already held that the Code, "[w]hile unquestionably important, and respected by the courts, * * * does not have the force of law” (Niesig v Team I, 76 NY2d 363, 369 [Kaye, J.]). Moreover, where application of the Code affects the interests of others, we have acknowledged that " 'we must use our judicial process to make our own decision in the interests of justice to all concerned’ ” (S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437, 443 [Kaye, J.], quoting Foley & Co. v Vanderbilt, 523 F2d 1357, 1360 [Gurfein, J., concurring]). Thus, the majority’s reliance on the disciplinary rules in this context ignores our duty to protect the interests of the Hamilton County electorate. Furthermore, the public would be sufficiently protected against disciplinary violations because the Assistant District Attorneys, the actual in-court prosecutors, would be subject to professional disciplinary rules.

To ignore stare decisis, and the statutory and constitutional rights of the electorate of Hamilton County to the same legitimate choices afforded the electorate elsewhere in this State, will serve no purpose. For these reasons, I vote to affirm.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Ciparick concur in Per Curiam opinion; Judge Levine dissents and votes to affirm in a separate opinion.

Order reversed, etc.

       Though surely not binding on courts as a matter of law (see, dissenting opn, at 477), the Code of Professional Responsibility is nevertheless binding on attorneys, guiding them in maintaining professional standards and subjecting them to professional discipline (see, EC 3-3 ["The public interest is best served in legal matters by a regulated profession”]). Thus, in deciding the question posed here — whether the public policy of this State, as expressed in its Constitution and statutes, requires District Attorneys to be able to practice law — the principles embodied in the Code are certainly significant.


author: Levine, J.

text:
    [657 NE2d 1315, 634 NYS2d 32]
    In the Matter of the Arbitration between Committee of the Interns and Residents, by and through Its President, David Kerrison, Respondent, and David Dinkins, as Mayor of the City of New York, et al., Appellants, et al., Respondents.
    Argued September 14, 1995;
    decided October 26, 1995

      POINTS OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Deborah R. Douglas and Kristin M. Helmers of counsel), for appellants.
    The order of the Court below compelling arbitration of the union’s grievance seeking to compel the City to defend a former resident-physician in a civil proceeding, and to indemnify him for any "malpractice” judgment, must be reversed, as a matter of law, because it violates section 50-k of the General Municipal Law and strong public policy. Moreover, the collective bargaining agreement expressly limits any rights to representation and indemnification to acts of "malpractice” and does not authorize such benefits to employees who commit crimes or other acts of intentional wrongdoing. (Matter of Acting Supt. of Schools [United Liverpool Faculty Assn.], 42 NY2d 509; Matter of South Colonie Cent. School Dist. [South Colonie Teachers Assn.], 46 NY2d 521; Matter of Williams v City of New York, 64 NY2d 800; Wong v City of New York, 174 AD2d 486; Blood v Board of Educ., 121 AD2d 128; Matter of Aimcee Wholesale Corp. [Tamar Corp.] 21 NY2d 621; Coming v Village of Laurel Hollow, 48 NY2d 348; Board of Educ. v Areman, 41 NY2d 527; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Western v MacKenzie, 187 AD2d 1000, 81 NY2d 707.)

      Sipser, Weinstock, Harper & Dorn, New York City (Larry Magarik of counsel), and Harry Franklin for Committee of Interns and Residents, respondent.
    I. The parties’ dispute over whether the employer is contractually bound to provide a defense to a resident in a civil action against him under article XIII of the collective bargaining agreement is clearly arbitrable under the agreement’s broad arbitration clause and the strong public policy favoring arbitration of labor disputes. (Steelworkers v American Mfg. Co., 363 US 564; Steelworkers v Enterprise Corp., 363 US 593; Steelworkers v Warrior & Gulf Co., 363 US 582; Matter of Long Is. Lbr. Co. [Martin], 15 NY2d 380; Matter of Potoker [Brooklyn Eagle], 2 NY2d 553, 355 US 883; Matter of Weinrott [Carp], 32 NY2d 190; Matter of Exercycle Corp. [Maratta] 9 NY2d 329; Matter of Prinze [Jonas], 38 NY2d 570; Matter of Baran v Otterbein, 84 AD2d 928; Westing

      house Elec. Corp. v New York City Tr. Auth., 82 NY2d 47.) II. A public employer’s provision of malpractice defense insurance to employees sued in the line of work, over and above the employer’s minimal statutory duty, is a mandatory subject of bargaining, and New York City Health and Hospitals Corporation’s (HHC) agreement to article XIII of the collective bargaining agreement is lawful and enforceable. (Paperworkers v Misco, Inc., 484 US 29; Mineola Union Free School Dist. v Mineola Teachers Assn., 46 NY2d 568; Matter of Acting Supt. of Schools [United Liverpool Faculty Assn.], 42 NY2d 509; Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Matter of Port Jefferson Sta. Teachers Assn. v Brookhaven-Comsewogue Union Free School Dist. 45 NY2d 898; Matter of Board of Educ. v Arlington Teachers Assn., 78 NY2d 33; Matter of Town of Haverstraw v Newman, 75 AD2d 874; Matter of Board of Educ. v Nyquist, 48 NY2d 97; Matter of Susquehanna Val. Cent. School Dist. [Susquehanna Val. Teachers’ Assn.] 37 NY2d 614.) III. General Municipal Law § 50-k does not preclude arbitration over HHC’s agreement to provide malpractice insurance to a resident over and above the provisions of General Municipal Law § 50-k. (Matter of Board of Educ. v Greenburgh Teachers Fedn., 82 NY2d 771; Matter of Webster Cent. School Dist. v Public Empl. Relations Bd., 75 NY2d 619; Matter of Guarino v Anderson, 259 NY 93; Matter of Deuel v Gaynor, 141 App Div 630; Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122; Syracuse Teachers Assn. v Board of Educ., 42 AD2d 73, 35 NY2d 743; Piro v Bowen, 76 AD2d 392, 52 NY2d 702.) IV. No public policy forbids the employer from providing a legal defense in a civil suit for malpractice to its employee who has been convicted of a crime, and the criminal conviction is not a sufficient ground to stay arbitration of the employer’s contractual commitment to provide such a defense. (Paperworkers v Misco, Inc., 484 US 29; Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Singer v Jefferies & Co., 78 NY2d 76; Matter of Kane v McClellan, 110 App Div 44; Schmid v Werner, 277 App Div 520, 303 NY 754, 304 NY 643; Seaboard Sur. Co. v Gillette Co., 64 NY2d 304; Holman v Transamerica Ins. Co., 81 NY2d 1026; Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640; Allstate Ins. Co. v Zuk, 78 NY2d 41; 2500 Motel Corp. v Investors Ins. Co., 169 AD2d 604, 78 NY2d 857.) V. The possibility that an arbitrator might issue an award which might violate public policy is not a ground to stay arbitration.
      (Matter of Board of Educ. [Connetquot Teachers Assn.] 60 NY2d 840; Matter of Port Wash. Union Free School Dist. v Port Wash. Teachers Assn., 45 NY2d 411; Hospital for Joint Diseases & Med. Ctr. v Davis, 442 F Supp 1030, 578 F2d 1368; Local 453, Intl. Union of Elec. Workers v Otis El. Co., 314 F2d 25; Hackett v Milbank, Tweed, Hadley & McCloy, 80 NY2d 870; Matter of Babylon Union Free School Dist. v Babylon Teachers Assn., 79 NY2d 773; Matter of Incorporated Vil. of Malveme [Malveme Police Benevolent Assn.] 113 Misc 2d 1072; Board of Educ. v Christa Constr., 80 NY2d 1031; Matter of Williams v Rensselaer County Bd. of Elections, 118 AD2d 966, 68 NY2d 809; Death v Salem, 111 AD2d 778.)
   OPINION OF THE COURT

Levine, J.

Peter Anyakora, a resident physician at Harlem Hospital, a public hospital in the City of New York, allegedly refused to admit, examine or treat a woman who was brought by ambulance to the hospital in active labor, despite a direct order to do so from the hospital administrator. The patient gave birth in a hospital admitting room attended only by EMS personnel. Anyakora was charged by the hospital with violating disciplinary rules and was criminally prosecuted for violation of Public Health Law § 2805-b (2) (b). In addition, the patient, Charlesetta Brown, sued Anyakora for medical malpractice, breach of the statutory duty imposed by Public Health Law § 2805-b to provide emergency treatment, and intentional infliction of emotional distress.

Anyakora requested that the City represent and indemnify him in the civil action brought by Brown. The City is contractually obligated to defend and indemnify resident physicians at its public hospitals in malpractice actions pursuant to a collective bargaining agreement entered into by Anyakora’s union, the Committee of the Interns and the Residents, and the New York City Health and Hospitals Corporation. The City denied Anyakora’s request for representation citing General Municipal Law § 50-k, which places certain duties on municipalities to defend and indemnify public employees in civil actions brought against them for their conduct while acting in the performance of their employment duties but limits the obligation to defend and indemnify when the conduct of the employee complained of in the action also constitutes a violation of the municipality’s disciplinary rules (General Municipal Law § 50-k [2], [5]).

Thereafter, the union filed a grievance on behalf of Anyakora alleging that the City’s refusal to provide legal representation violated the malpractice insurance provision of the collective bargaining agreement. After the grievance was denied, the union filed a notice of arbitration and, given an alleged imminent risk of entry of a default judgment in the Brown civil action, commenced this CPLR article 75 proceeding seeking to compel immediate arbitration and to stay the civil action pending the outcome of arbitration. The City moved to dismiss and moved for a permanent stay of arbitration on the grounds that public policy and General Municipal Law § 50-k prohibit government representation or indemnification of a public employee who has been criminally charged for the conduct upon which the civil action is based. Supreme Court rejected all of the City’s motions and granted the union’s application to the extent of directing the parties to proceed to immediate arbitration. The Appellate Division unanimously affirmed.

We agree with the courts below that no statute or public policy prohibits arbitration of the dispute over the City’s duty to defend Anyakora in the civil damage action against him. The threshold determination as to whether there is a valid, enforceable agreement to arbitrate between a municipality and public employees must proceed in sequence on two levels by answering the following inquiries: (1) are arbitration claims with respect to the particular subject matter of the dispute authorized under the Taylor Law; and (2) do the terms of the particular arbitration clause include this subject area? (Matter of Acting Supt. of Schools [United Liverpool Faculty Assn.] 42 NY2d 509, 513; see also, Matter of Franklin Cent. School [Franklin Teachers Assn.] 51 NY2d 348, 355; Board of Educ. v Barni, 49 NY2d 311.)

In answering the first question, courts must determine that there is nothing in statute, decisional law or public policy which would preclude the municipality and its employee or group of employees from referring the dispute to arbitration (Matter of Acting Supt. of Schools [United Liverpool Faculty Assn.] supra, at 514). If there is some statute, decisional law or public policy that prohibits arbitration of the subject matter of the dispute, then the answer to the first inquiry is no, and the claim is not arbitrable regardless of the answer to the second question (id.). We have thus precluded arbitration in several cases on public policy grounds (see, e.g., Board of Educ. v Areman, 41 NY2d 527 [inspection of teacher personnel files by the Board of Education]; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774 [limitation on the right to terminate nontenured teachers at the end of their probationary period]).

We have made a distinction, however, between disputes in which granting any relief would violate public policy and situations in which public policy would only be violated by granting the remedy requested by one or more of the parties (see, Matter of Port Wash. Union Free School Dist. v Port Wash. Teachers Assn., 45 NY2d 411, 417). In the former situation, courts may intervene and stay arbitration (see, Board of Educ. v Areman, supra). Where an arbitrator may be able to fashion a remedy not in violation of public policy, it would be improper for a court to intervene preemptively (see, Matter of Port Wash. Union Free School Dist. v Port Wash. Teachers Assn., supra, at 418).

The City argues that arbitration of the dispute here is precluded by General Municipal Law § 50-k and public policy. General Municipal Law § 50-k sets forth a municipality’s obligation to defend and indemnify its employees, and concededly does not require representation or indemnification under the circumstances presented in this case. The City argues that because the Legislature has chosen to limit a municipality’s duty to defend and indemnify its public employees under section 50-k, it would be impermissible for it to agree contractually to provide greater coverage for resident physicians employed by its public hospitals. However, this negative implication is not supported by the express language of section 50-k: "[t]he provisions of this section shall not be construed to impair, alter, limit or modify the rights and obligations or and insurer under any policy of insurance” (General Municipal Law § 50-k [7]) and "[t]he provisions of this section shall not be construed in any way to impair, alter, limit, modify, or abrogate or restrict * * * any right to defense and/or indemnification provided for any governmental * * * employee * * * in accordance with * * * any other provision of state, federal or local law or common law” (General Municipal Law § 50-k [9]). Thus the City’s argument that General Municipal Law § 50-k necessarily sets the outer limits of the City’s duty to defend is ineffective to bar arbitration of this dispute.

Moreover, the City’s policy arguments are principally directed at the relief sought by the union. It asserts that public policy would be violated by imposing an obligation upon the City to have to represent an employee in connection with conduct that violates the criminal law and the City’s own disciplinary rules. Even if the City might be prohibited from directly representing this doctor under these circumstances, the policy concerns raised by the City might not preclude affording some other remedy to implement the rights guaranteed resident physicians under the collective bargaining agreement. The policy concerns raised have no bearing on the issue now before us, the arbitrability of the City’s malpractice insurance coverage obligation provided for in the collective bargaining agreement (see, Port Wash., supra, at 418-419). Rather, they are better addressed by the arbitrator who, of course, may take them into account in fashioning a remedy (id., at 418). In any event, "[s]hould the arbitrator’s exercise of remedial discretion end in perceived policy conflicts, review by the courts will not have to rest on speculation or assumption” (id., at 419).

Therefore, because the malpractice insurance clause of the contract provides that the City will defend and indemnify its employee medical residents in malpractice actions, and because no statute or policy prohibits the City from furnishing such insurance coverage as a "term[ ] and condition[ ] of employment” (Civil Service Law § 204 [the Taylor Law]), the first Liverpool inquiry is satisfied. The second inquiry is also satisfied. The arbitration clause of the collective bargaining agreement broadly provides that all grievances, that is, "disputéis] concerning the application or interpretation of the terms of this collective bargaining agreement” (collective bargaining agreement art XIV), shall be submitted to arbitration. The dispute here — whether the civil suit falls within the malpractice provision of the parties’ collective bargaining agreement and whether that clause affords Anyakora a remedy under the circumstances — clearly involves a question of contract interpretation. Hence, it falls squarely within the arbitration agreement. It follows that the courts below were correct in directing submission of the dispute to an arbitrator.

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

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

Order affirmed, with costs.

      . Anyakora was found guilty of two counts of misconduct after a disciplinary hearing, and a 30-day suspension was recommended. The plaintiff union representing him requested arbitration of the disciplinary dispute, and New York City Health and Hospital’s Corporation did not resist arbitration of that dispute. However, the arbitration was held in abeyance while the criminal charges were pending. Anyakora was convicted of the criminal charges following a jury trial, and we are informed by the parties that he has appealed the convictions.

        . Article XIII, "Malpractice Insurance” provides:
      "Section 1
      "The Corporation shall fully indemnify each HSO [house staff officer] against any judgment rendered personally against him/her for malpractice of medicine * * * rendered during the HSO’s service at a municipal hospital * * *
      "Section 2. * * *
      "(c) The defense of all claims, actions, and proceedings within the purview of this Article shall be conducted by the City. The Corporation Counsel of the City shall appear and defend such actions and proceedings on behalf of the HSOs.”


author: Ciparick, J.

text:
    [657 NE2d 1318, 634 NYS2d 35]
    Loretta Misseritti, as Administratrix of the Estate of Angelo Misseritti, Deceased, Appellant, v Mark IV Construction Co., Inc., Defendant and Third-Party Plaintiff-Respondent. B.A. Masons, Inc., Third-Party Defendant-Respondent.
    Argued September 19, 1995;
    decided October 31, 1995

      POINTS OF COUNSEL

      Alfred J. Heilman, Rochester, for appellant.
    I. Mark IV is absolutely liable under section 240 of the Labor Law. (Hooey v Airport Constr. Co., 253 NY 486; Lombardi v Stout, 80 NY2d 290; Haimes v New York Tel. Co., 46 NY2d 132; Heath v Soloff Constr., 107 AD2d 507; Dick v Gates Constr. Corp., 146 AD2d 953.) II. The risk involved here related to elevation differentials. (Salzler v New York Tel. Co., 192 AD2d 1104; Rocovich v Consolidated Edison Co., 78 NY2d 509; Maracle v DiFranco, 197 AD2d 877; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841.) III. Decedent was a person protected by the statute. (Haimes v New York Tel. Co., 46 NY2d 132.) IV. Decedent was not a recalcitrant worker. (Gordon v Eastern Ry. Supply, 82 NY2d 555; Laurie v Niagara Candy, 188 AD2d 1075.) V. Presence of wall ties and materials for bracing did not satisfy defendant’s obligation to workmen. (Heath v Soloff Constr., 107 AD2d 507; Howell v Rochester Inst. of Technology, 191 AD2d 1006.) VI. Failure to brace the wall was a proximate cause of the accident.

      Volgenau & Bosse, Buffalo (Norman E.S. Greene of counsel), for defendant and third-party plaintiff-respondent.
    Mark IV was entitled to summary judgment pursuant to section 240 (1) of the Labor Law as a matter of law, and consequently plaintiff’s cause of action pursuant to that section was properly dismissed by the Court below. (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Rocovich v Consolidated Edison Co., 78 NY2d 509; Maracle v DiFranco, 197 AD2d 877; Cliquennoi v Michaels Group, 178 AD2d 839; Pennacchio v Tednick Corp., 200 AD2d 809; Smith v New York State Elec. & Gas Corp., 82 NY2d 781; Lehner v Dormitory Auth., 201 AD2d 948; Radka v Miller Brewing, 182 AD2d 1111; Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361; Mack v Altmans Stage Light. Co., 98 AD2d 468.)

      David B. Mahoney, Rochester, for third-party defendant-respondent.
    I. Bracing is not applicable in this case. (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Maracle v Di-Franco, 197 AD2d 877; Staples v Town of Amherst, 146 AD2d 292; MacNair v Salamon, 199 AD2d 170; Manning v Kenneally Constr. Co., 168 AD2d 861, 77 NY2d 806; Urrea v Sedgwick Ave. Assocs., 191 AD2d 319; Dennis v Beltrone Constr. Co., 195 AD2d 688; Fernandez v MHP Land Assocs., 188 AD2d 417; Rocovich v Consolidated Edison Co., 78 NY2d 509.) II. A falling wall is not a Labor Law § 240 falling object.
   OPINION OF THE COURT

Ciparick, J.

The issue presented on this appeal is whether plaintiff was entitled to summary judgment on her Labor Law § 240 (1) cause of action based upon the absence of any "bracing” on the fire wall that collapsed at the construction site where her husband was working. We conclude that the collapse of the fire wall is the type of "ordinary and usual” peril a worker is commonly exposed to at a construction site and not an elevation-related risk subject to the safeguards prescribed by Labor Law § 240 (1).

According to the complaint, plaintiff’s decedent was a mason employed by third-party defendant B.A. Masons, Inc. (Masons), the subcontractor hired by defendant and third-party plaintiff, Mark IV Construction Co., Inc. (Mark IV), to perform masonry work for certain townhouses being constructed in Monroe County. On February 22, 1988, the decedent was severely injured when a completed, concrete-block fire wall collapsed. It is alleged that this incident was the sole cause of the decedent’s demise two years later on May 28, 1990. Plaintiff, as administratrix of her husband’s estate, commenced this action against Mark IV alleging, among other things, that her husband’s injuries and damages were occasioned by defendant’s failure to comply with its nondelegable duty under Labor Law § 240 (1) to furnish or erect "reasonably safe scaffolding, braces, and other devices * * * so constructed, placed and operated as to give proper protection to [decedent] in the course of his employment.” Plaintiff thereafter moved for partial summary judgment on the Labor Law § 240 (1) cause of action. Mark IV cross-moved, inter alla, for summary judgment dismissing plaintiff’s cause of action alleging a violation of Labor Law § 240 (1).

As relevant, Supreme Court granted plaintiffs motion for partial summary judgment on the Labor Law § 240 (1) cause of action and accordingly denied Mark IV’s cross motion for summary judgment. The Appellate Division modified, with two Justices dissenting, to the extent of granting defendant summary judgment on the Labor Law § 240 (1) cause of action and, as so modified, affirmed. Plaintiff appeals as of right pursuant to CPLR 5601 (d). By stipulation, the parties discontinued all causes of action in the complaint except for the one brought under Labor Law § 240 (1).

The import of Labor Law § 240 (1) is undeniably salutary, requiring owners and contractors to provide proper protection to workers employed on a construction site (see, Rocovich v Consolidated Edison Co., 78 NY2d 509, 513; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520-521, rearg denied 65 NY2d 1054; Haimes v New York Tel. Co., 46 NY2d 132, 135). However, not every hazard or danger encountered in a construction zone falls within the scope of Labor Law § 240 (1) as to render the owner or contractor liable for an injured worker’s damages (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501). We have expressly held that "Labor Law § 240 (1) was aimed only at elevation-related hazards and that, accordingly, injuries resulting from other types of hazards are not compensable under that statute even if proximately caused by the absence of * * * [a] required safety device” (id., at 500; see also, Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841, 843-844 [Labor Law §240 (1) inapplicable where worker struck in the knee by 120-pound steel beam he was hoisting into place]; Smith v New York State Elec. & Gas Corp., 82 NY2d 781, 783 [worker injured by 200-pound tension ball propelled against him after its cable snapped does not have a Labor Law § 240 (1) claim]; Groves v Land’s End Hous. Co., 80 NY2d 978, 980 [Labor Law § 240 (1) not available to worker injured by forklift that tipped over]).

Section 240, known as the "Scaffold Law,” has historically been construed in the context of workers injured as a result of inadequate or missing safety equipment at elevated work sites (see, Bland v Manocherian, 66 NY2d 452, 457-459; Haimes v New York Tel. Co., 46 NY2d, at 134-137, supra; Sarnoff v Charles Schad, Inc., 22 NY2d 180, 183-185; DeHaen v Rockwood Sprinkler Co., 258 NY 350, 354). It is in recognition of the exceptionally dangerous conditions posed by elevation differentials at work sites that section 240 (1) prescribes safety precautions for workers laboring under unique gravity-related hazards (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d, at 501, supra). Indeed, the type of protective devices enumerated by section 240 (1) predominantly concern those used on elevated work sites "either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured” (Rocovich v Consolidated Edison Co., 78 NY2d, at 514, supra; see also, Labor Law § 240 [1] [listing "scaffolding,” "hoists,” "stays,” "ladders,” "slings,” "hangers,” "pulleys,” "braces” and "ropes” to name a few of the devices]; cf., Labor Law § 241 [6]). In this context, we construe the "braces” referred to in section 240 (1) to mean those used to support elevated work sites not braces designed to shore up or lend support to a completed structure.

It is uncontroverted that prior to the wall’s collapse, the decedent and his co-worker had just dismantled the scaffolding used to erect the completed fire wall and were sweeping the flooring in the area. Masons had not yet vertically braced the wall with the 2 feet by 10 feet wooden planks it had on the work site. There is no showing that the decedent was working at an elevated level at the time of his tragic accident. Nor can it be said that the collapse of a completed fire wall is the type of elevation-related accident that section 240(1) is intended to guard against (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d, at 501, supra; see also, Rocovich v Consolidated Edison Co, 78 NY2d, at 514, supra). Rather, the accident that resulted in decedent’s grave injuries is the type of peril a construction worker usually encounters on the job site.

Accordingly, the judgment appealed from and order of the Appellate Division brought up for review should be affirmed, with costs.

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

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.


text:
    [657 NE2d 1321, 634 NYS2d 38]
    The People of the State of New York, Appellant, v Gus Franco, Respondent. The People of the State of New York, Appellant, v Pedro Alvarez, Respondent. The People of the State of New York, Appellant, v Angela Jones, Respondent.
    Argued September 20, 1995;
    decided November 1, 1995

      POINTS OF COUNSEL

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Nicoletta J. Caferri and Steven J. Chananie of counsel), for appellants in the first and second above-entitled actions.
    The refusal of the second Grand Jury to indict defendant on charges for which defendant was already properly indicted based on legally sufficient evidence did not require dismissal of those pending charges. (People v Oleksowicz, 101 AD2d 119; People v Handre, 94 Misc 2d 217; People v Goodman, 31 NY2d 262; People v Calbud, Inc., 49 NY2d 389; People v Deegan, 69 NY2d 976; People v Jennings, 69 NY2d 103; People v Pelchat, 62 NY2d 97; People v Sullivan, 68 NY2d 495; People v Brewster, 63 NY2d 419; People v Mitchell, 82 NY2d 509.)

      Harold Borg, Kew Gardens, and Edwin Ira Schulman for respondent in the first above-entitled action.
    The finding of no true bill by the second Grand Jury of all charges, including those contained in the first indictment, created a legal impedíment warranting the dismissal of the first indictment. (Matter of Holtzman v Goldman, 71 NY2d 564; People v Cileli, 137 AD2d 829; People v Guzman, 168 AD2d 154; People u Goodman, 31 NY2d 262; People v Frisbie, 40 AD2d 334; People v Pelchat, 62 NY2d 97; People v Ford, 62 NY2d 275; People v Dykes, 86 AD2d 191; People v Calbud, Inc., 49 NY2d 389.)
    Respondent, precluded in the second above-entitled action.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Robert M. Raciti and Mark Dwyer of counsel), for appellant in the third above-entitled action.
    The trial court ruled properly when it refused to dismiss an indictment voted by the first Grand Jury after a second Grand Jury declined to indict on the same charges. (People v Calbud, Inc., 49 NY2d 389; People v Deegan, 69 NY2d 976; People v Pelchat, 62 NY2d 97; Matter of District Attorney of Suffolk County, 58 NY2d 436; Matter of Morgenthau v Altman, 58 NY2d 1057; People v Wilkins, 68 NY2d 269; People v Cade, 74 NY2d 410; People v Bell, 306 NY 110.)

      Kaye, Scholer, Fierman, Hays & Handler, New York City (Peter M. Fishbein and Carlton E. Thompson of counsel), and E. Joshua Rosenkranz for respondent in the third above-entitied action.
    I. The return of a no true bill by the second Grand Jury created a jurisdictional or legal impediment to the conviction of defendant on the identical indictment by the first Grand Jury. (People v Lancaster, 69 NY2d 20, 480 US 922; People v Iannone, 45 NY2d 589; People v Dykes, 86 NY2d 191; People v Martin, 71 AD2d 928; People v Cade, 74 NY2d 410; People v Goodman, 31 NY2d 262; People v Frisbie, 40 AD2d 334.) II. Defendant was entitled to have the jury charged on the affirmative defense to felony murder because a reasonable jury could find on the evidence presented that the elements of the affirmative defense were satisfied. (People v Cable, 63 NY2d 270.)
   OPINION OF THE COURT

Ciparick, J.

CPL 210.20 (1) (h) permits dismissal of an indictment, upon motion by the defendant, where there exists a "legal impediment” to conviction. When the People elect to re-present charges to a second Grand Jury which are already contained in an indictment voted by a prior Grand Jury, and the second Grand Jury returns a "no true bill” following the re-presentment, the second Grand Jury’s determination creates a legal impediment to conviction of defendant under CPL 210.20 (1) (h), requiring dismissal of the indictment. Accordingly, we conclude that dismissal of the indictments was proper in the three cases before us on appeal.

I

People v Franco

On December 26, 1991, a Grand Jury voted a true bill and indicted defendant on one count of murder in the second degree (Penal Law § 125.25 [2]), two counts of assault in the first degree (Penal Law § 120.10 [3]), two counts of assault in the second degree (Penal Law § 120.05 [4]) and one count of criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]). The People presented evidence tending to demonstrate that defendant killed a man and slashed a woman with a dagger when a quarrel ensued outside of the premises where these individuals had attended a holiday party. Except for one count charging assault in the first degree, the indictment, which was filed on January 15, 1992, survived a motion to dismiss for legal insufficiency.

On October 9, 1992, the People advised defendant that they had garnered evidence to support an additional charge of intentional murder (Penal Law § 125.25 [1]), and re-presented seven of the original eight witnesses to a second Grand Jury. The one witness who was unavailable would have provided testimony favorable to defendant. In contrast to his decision to remain silent during the first Grand Jury proceeding, defendant testified in his own behalf before the second Grand Jury stating that he acted in self-defense. The People then instructed the second Grand Jury on all the counts previously submitted to the first Grand Jury but not on murder in the second degree, the crime for which re-presentment to the second Grand Jury was undertaken. The second Grand Jury returned a "no true bill” as to all charges.

Defendant moved to dismiss the indictment pursuant to CPL 210.20 (1) (h). Supreme Court granted the motion, finding that the District Attorney forfeited the otherwise legally valid indictment. "[A] legal impediment, within the meaning of CPL 210.20 (1) (h), stands in the way of any possible conviction of the defendant for any of the charges * * * remaining under the first indictment” (People v Franco, 160 Misc 2d 114, 119). The Appellate Division affirmed (see, People v Franco, 196 AD2d 357). A Judge of this Court granted the People leave to appeal.

People v Alvarez

By indictment filed October 28, 1991, defendant was charged with attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), attempted rape in the first degree (Penal Law §§ 110.00, 130.35 [1]), assault in the first degree (Penal Law § 120.10 [3]), and assault in the second degree (Penal Law § 120.05 [6]) based on his attack on a 72-year-old woman while she was swimming in the ocean. Defendant did not testify before the Grand Jury that returned this indictment. Supreme Court denied defendant’s omnibus motion to dismiss the charges of attempted murder and assault, ruling that there was sufficient evidence to support those charges, but granted dismissal of the attempted rape charge, with leave to the People to re-present to a second Grand Jury.

In addition to the attempted rape charge and a new charge of reckless endangerment in the first degree (Penal Law § 120.25), the People re-presented the attempted murder and assault counts to a second Grand Jury. The victim told the second Grand Jury that she had been swimming naked at the time defendant attacked her, a statement at odds with her previous Grand Jury testimony that she was wearing a bathing suit when she was attacked. Defendant elected to testify before the second Grand Jury, where he denied any contact with the victim, asserting that he had been misidentified as the assailant. After instructing the second Grand Jury on all the counts previously voted by the first Grand Jury plus the reckless endangerment charge, the second Grand Jury returned a "no true bill.”

Defendant thereafter moved to dismiss the indictment as defective or, in the alternative, on the grounds that an interest of justice dismissal was warranted. Supreme Court granted the motion, holding that the second Grand Jury’s dismissal of all charges, including those contained in the original indictment, rendered the first indictment invalid as a matter of law (see, People v Alvarez, 155 Misc 2d 413, 419). The Appellate Division affirmed (see, People v Alvarez, 203 AD2d 372). A Judge of this Court granted the People leave to appeal.

People v Jones

On December 5, 1990, a Grand Jury indicted defendant for murder in the second degree (Penal Law § 125.25 [3]), attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [2]), and attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [1]) in connection with the death of a 62-year-old man shot by cohorts of defendant after the man refused to pay defendant the $10 debt due from a sexual favor. Ten months later, the People re-presented the charges to a second Grand Jury with the additional count of burglary in the first degree (Penal Law § 140.30). The second Grand Jury voted a "no true bill,” and defendant subsequently moved to dismiss the indictment pursuant to CPL 210.20 and CPL 210.40.

Unlike the Franco and Alvarez courts, here Supreme Court denied the motion, finding no statutory basis to dismiss an indictment voted by a legally constituted Grand Jury when a second Grand Jury declines to indict on the same charges. Defendant thereafter was tried by a jury on the indictment charging her with felony murder. The jury convicted defendant of second degree murder, and she was sentenced to 15 years to life in prison. On appeal, the Appellate Division, with two Justices dissenting, reversed and dismissed the indictment (see, People v Jones, 206 AD2d 82). Justice Sullivan granted the People leave to appeal to this Court.

II

In each of these cases, the second Grand Jury’s vote of a "no true bill” reflected a conclusion that the evidence was insufficient to warrant prosecution of the defendant before a petit jury. This determination, in direct conflict with the indictment voted by the first Grand Jury, constitutes a legal impediment to conviction of the defendant as contemplated by the "dragnet” clause contained in CPL 210.20 (1) (h) (see, People v Goodman, 31 NY2d 262, 269, n, rearg denied 32 NY2d 705). Contrary to the People’s contention, this result does not compromise the integrity of the proceedings before the first Grand Jury. Rather, it was the People’s action in re-presenting all of the charges already considered by the prior Grand Jury that caused the impediment and invalidated the action of the first Grand Jury. The indictment thus became subject to dismissal under CPL 210.20 (1) (h). By re-presenting those charges already contained in an indictment, the People took the calculated risk that the second Grand Jury could view the evidence favorably toward defendant. This result, produced in the three cases now on appeal, constitutes a legal impediment within the purview of CPL 210.20 (1) (h).

The primary function of the Grand Jury is to investigate crimes and determine whether there exists sufficient evidence and a legal reason to believe that a citizen should stand publicly accused of a crime and be subjected to the task of defending against the accusations at trial (see, People v Pelchat, 62 NY2d 97, 104-105; People v Iannone, 45 NY2d 589, 594; People v Calbud, Inc., 49 NY2d 389, 394). The Grand Jury may indict only if the evidence establishes a legally sufficient case against the accused (see, CPL 190.65 [1]; see also, CPL 190.75 [1]). We have recognized that the Grand Jury serves as a shield for citizens against unfounded prosecution (see, People v Pelchat, 62 NY2d, at 108, supra; People v Wilkins, 68 NY2d 269, 273). Statutory enactments have halted the abusive common-law practice that allowed a prosecutor to continually resubmit charges to successive Grand Juries until an indictment was returned (see, People ex rel. Flinn v Barr, 259 NY 104, 107-108; CPL 190.75 [1], [3]; CPL 200.80; see also, People v Cade, 74 NY2d 410, 416, 418).

Here, the action by the subsequent Grand Juries in voting no true bills — effectively rejecting the People’s case — qualifies as "some other * * * legal impediment” under CPL 210.20 (1) (h). This legal impediment, unwittingly created by the People, justifies a grant of a motion to dismiss the indictment. That there has been no challenge to the propriety or regularity of the first Grand Jury action does not dictate a different result, as urged by the People. It was the second Grand Juries’ determination that the evidence was insufficient to sustain the charges, and in the Franco and Alvarez cases to credit defendant’s testimony over the other witnesses, that created the legal impediment, not something inherent in the proceedings of the first Grand Juries.

The People’s counterargument that only the filing of a superseding indictment can justify dismissal of counts voted by the first Grand Jury under existing law misconstrues the language of CPL 200.80. CPL 200.80 imposes no restriction on the People to resubmit charges, without notice to defendant or leave of court, to the same Grand Jury or to a new Grand Jury to obtain a new, superseding indictment prior to defendant’s guilty plea or trial (see, CPL 200.80; Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 200.80, at 532; People v Cade, 74 NY2d, at 414-415, supra). The People strain the statutory language "[t]he first indictment is not, however, superseded with respect to any count contained therein which charges an offense not charged in the second indictment” by insisting this means that a count contained in the indictment that is then recharged and rejected by the second Grand Jury survives dismissal. Only when the People do not re-present a charge contained in the indictment voted by the first Grand Jury to the second Grand Jury does that charge merge into the new, i.e., superseding, indictment voted by the second Grand Jury, which would presumably — and logically — contain charges not considered or voted upon by the first Grand Jury. In each of these cases, the People had convinced a Grand Jury to indict and, then, armed with additional proof on another charge could easily have submitted the new charge — and in Alvarez the dismissed charge for which leave to re-present was granted — to supplement the original evidence and procure a second indictment. Choosing instead to resubmit all of the charges, the People cannot now rewrite CPL 200.80 to save the first indictments and irreparably prejudice the statutory rights of these defendants (cf., People v Cade, 74 NY2d, at 416-417, and dissenting opn, at 419-420, supra,).

CPL 200.80, like CPL 190.75 (3), protects defendants against redundant charges. Where, as here, the second Grand Juries rejected charges voted by previously constituted Grand Juries, the three indictments are no longer legally valid instruments. Thus, without a valid and sufficient accusatory instrument, the People lack the necessary predicate to proceed with a criminal prosecution (see, NY Const, art I, § 6; CPL 210.05; People v Harper, 37 NY2d 96, 99).

Accordingly, in each case, the order of the Appellate Division should be affirmed.

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

In each case: Order affirmed.

       CPL 210.20 (1) (h) provides, in full: "After arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that: * * * (h) There exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged.”