author: Alexander, J.

text:
    In the Matter of WEOK Broadcasting Corporation, Respondent, v Planning Board of the Town of Lloyd, Appellant.
    Argued February 11, 1992;
    decided April 3, 1992

      POINTS OF COUNSEL

      Thomas P. Halley for appellant. I.
    The scope of judicial review is limited. (Kleppe v Sierra Club, 427 US 390; City of Rochester v United States Postal Serv., 541 F2d 967; H.O.M.E.S. v New York Urban Dev. Corp., 69 AD2d 222; Aldrich v Pattison, 107 AD2d 258; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Cohalan v Carey, 88 AD2d 77, 57 NY2d 672; Matter of Briarwood Community Assn. v City of New York, 147 AD2d 639, 74 NY2d 601; Matter of Greenpoint Renaissance Enter. Corp. v City of New York, 137 AD2d 597, 72 NY2d 810; Matter of Strathmore

      Hills Civic Assn. v Town of Huntington, 146 AD2d 783.) II. Appellant Planning Board met the requirements of SEQRA and had a rational basis for its actions in the record before it. (Matter of Shawangunk Mountain Envtl. Assn. v Planning Bd., 157 AD2d 273; Matter of Holmes v Brookhaven Town Planning Bd., 137 AD2d 601; Matter of Richland Acres Dev. Corp. v Adirondack Park Agency, 161 AD2d 1011; Matter of Coca-Cola Bottling Co. v Board of Estimate, 72 NY2d 674; Aldrich v Pattison, 107 AD2d 258; Matter of Environmental Defense Fund v Flacke, 96 AD2d 862.) III. Appellant Planning Board has made adequate findings. (Matter of Masten v Baldauf, 147 AD2d 566; Matter of Rothstein v County Operating Co., 6 NY2d 728; Matter of Larkin Co. v Schwab, 242 NY 330; Matter of Lemir Realty Corp. v Larkin, 11 NY2d 20; Glen Head — Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484.) IV. There is no showing of a precedent resulting from the Walker Tower approval. (Matter of Field Delivery Serv. [Roberts], 66 NY2d 516; Knight v Amelkin, 68 NY2d 975.) V. There is a rational basis in the record to uphold the disapproval of an action on SEQRA grounds. (Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215; H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222; Matter of City of Rome v New York State Health Dept., 65 AD2d 220, 46 NY2d 713; Matter of Richardson v Connelie, 65 AD2d 654; Matter of Orchards Assocs. v Planning Bd., 114 AD2d 850; Horn v International Business Machs. Corp., 110 AD2d 87.)

      David D. Hagstrom for respondent. I.
    The SEQRA findings were not supported by substantial evidence. (Jones v Rath Packing Co., 430 US 519; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Veysey v Zoning Bd. of Appeals, 154 AD2d 819; Matter of Pilato v Zoning Bd. of Appeals, 155 AD2d 864; Sackson v Zimmerman, 103 AD2d 843; Reed v Planning Bd., 120 AD2d 510; Matter of Consolidated Edison Co. v Hoffman, 43 NY2d 598; Syracuse Bros. v Darcy, 127 AD2d 588; Matter of De Sena v Board of Zoning Appeals, 45 NY2d 105; Matter of North Shore Steak House v Board of Appeals, 30 NY2d 238.) II. The Walker Tower approval is a precedent. (Horn v International Business Machs. Corp., 110 AD2d 87, 67 NY2d 602; Matter of Morse v Town of Gardiner Planning Bd., 164 AD2d 336; Knight v Amelkin, 68 NY2d 975.) III. The application for site plan approval had been prejudged. (Matter of Zagoreos v Conklin, 109 AD2d 281.) IV. Appellant’s brief misstates facts, misapplies the law and fails to show error. (Horn v International Business Machs. Corp., 110 AD2d 87, 67 NY2d 602.)

      Drayton Grant for Scenic Hudson, Inc., amicus curiae. I.
    The Planning Board had the authority under the State Environmental Quality Review Act to deny the permit upon finding that the adverse environmental effects could not be. adequately mitigated, notwithstanding a local law which allows the use. (Matter of WEOK Broadcasting Corp. v Planning Bd., 165 AD2d 578; Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215; Matter of Orchards Assocs. v Planning Bd., 114 AD2d 850; Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359; Matter of Karasz v Wallace, 134 Misc 2d 1052; Matter of De Sena v Board of Zoning Appeals, 45 NY2d 105; Matter of Ronsvalle v Blumenthal, 144 AD2d 766; Matter of Mialto Realty v Town of Patterson, 112 AD2d 371; RPM Motors v Gulotta, 88 AD2d 658.) II. The State Environmental Quality Review Act authorizes denial of a project based on its adverse visual impact, notwithstanding a local law which allows the use. (Modjeska Sign Studios v Berle, 43 NY2d 468, 439 US 809; Scenic Hudson Preservation Conference v Federal Power Commn., 354 F2d 608; Matter of Holmes v Brookhaven Town Planning Bd., 137 AD2d 601; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359; Citizens for Preservation of Windsor Terrace v Smith, 130 Misc 2d 967.) III. Earlier approval of another radio tower elsewhere, mitigated by a dedication of open space lands, is not precedent here. IV. The weight to be ascribed each environmental factor under SEQRA is appropriately left to the agency which must make the SEQRA determinations. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Horn v International Business Machs. Corp., 110 AD2d 87; United States v 27.09 Acres of Land, 760 F Supp 345.) V. The record reveals sufficient evidence of the likely impacts of the project to sustain the Board’s determination that the impacts were not acceptable. (Matter of Richland Acres Dev. Corp. v Adirondack Park Agency, 161 AD2d 1101.)
   OPINION OF THE COURT

Alexander, J.

The respondent Planning Board of the Town of Lloyd denied petitioner WEOK Broadcasting Corporation’s application for site plan approval to construct a radio transmitter facility. After a review of the application pursuant to SEQRA, the Planning Board determined that petitioner "failfed] to adequately minimize or avoid adverse environmental effects to the maximum extent practicable” and that "the environmental effects [identified] in the Environmental Impact Statement process cannot be adequately minimized or avoided by the mitigation measures identified as practical.” The Planning Board now appeals pursuant to CPLR 5601 (a) from an order of the Appellate Division which affirmed Supreme Court’s judgment annulling the Board’s determination as not supported by substantial evidence. We agree with the Appellate Division’s determination and therefore, for the reasons that follow, the order appealed from should be affirmed.

I

In July 1988, WEOK Broadcasting Corporation (WEOK) submitted an application to the Planning Board of the Town of Lloyd (Board) for site plan approval to build an AM radio transmitter facility consisting of five radio towers in Ulster County. The site is located in a Designed Business zone which allows radio and television towers as a permitted use, subject only to site plan approval by the Planning Board (Town of Lloyd Zoning Ordinance § 100-21 [A] [3]).

Nine months later in April of 1989, the Board issued a positive declaration that the project "may have a significant effect on the environment” (ECL 8-0109 [2]). Thus, concerned that the project threatened to impair the environment, the Board directed petitioner to file an Environmental Impact Statement (EIS) which would consider, among other things, the towers’ visual impact from nine locations, one of which was the Franklin D. Roosevelt residence, a national historic landmark in Dutchess County. Petitioner prepared and submitted a comprehensive Draft Environmental Impact Statement (DEIS) which included an analysis, prepared by landscape architects, of the visual impact of the proposed towers from these viewpoints. The analysis concluded there would be minor visual impact from six of the identified viewpoints, moderate visual impact from one, and no visual impact from the remaining two viewpoints, the Franklin D. Roosevelt (FDR) home and the Mid-Hudson Bridge. The visual impact analysis from the FDR viewpoint was conducted in the spring of 1989 when the trees surrounding the proposed site were leafless.

Comment regarding the DEIS was sought and obtained by the Board from various other agencies, including the United States Department of the Interior, the Dutchess County Department of Planning and the Ulster County Planning Board. Comment was also sought from a variety of environmental conservation and historical preservation organizations. Negative comments received from the agencies, organizations and local residents focused on the potential visual impact of the towers from the FDR viewpoint.

The Board also retained an independent consultant to critique the DEIS. This consultant noted that petitioner had "prepared an in depth analysis which utilized a professional and thorough methodology to objectively assess the visual impact of [the proposed project].” The consultant cautioned, however, that "subjective judgments are inextricably involved in any visual assessment.”

A Final EIS (FEIS) was prepared by petitioner addressing the comments and specific concerns identified by respondent’s consultant as well as other negative public comments made in response to the DEIS. The FEIS indicated that in an effort to mitigate the effect of the towers and their lighting, petitioner, with the approval of the Federal Communications Commission (FCC), substantially reduced the height of the tallest tower from an optimum height of 445 feet to 245 feet, the minimum height that would meet FCC minimum efficiency standards. In commenting upon this effort, the consultant noted that petitioner was "obviously compromising by reducing tower heights to such an extent.” In further mitigation of the objections articulated in the comments on the DEIS, petitioner noted that a variance from the Federal Aviation Administration had been obtained, permitting a reduction in the number of towers required to be lighted from five to two, and allowing petitioner to paint three of the towers gray to minimize their visibility. Additionally, the lighting on the towers was changed from a white strobe to a less visible red and in order to minimize the visual effect of the towers and to blend them in with the surroundings, they were designed as guyed towers with an 18-inch open face lattice instead of self-supporting towers tapering from an 18- to 20-foot base to two to three feet at the top.

The Board denied site plan approval in December 1989. It cited, inter alia, the following reasons for the denial: the Visual Impact Statement was unpersuasive in its analysis and was subject to conflicting interpretations and conclusions; there was a possibility that the towers would be visible from the FDR homestead; there was no direct financial benefit to be derived by the Town of Lloyd from the construction of the towers; the proposed action would be in "sharp contrast with the orderly development of the area and the district in which the proposed towers will be located, and therefore violates criteria set forth in section 100-8.2 of Zoning Ordinance”; because local property owners found the lighting objectionable, the towers would be incompatible with section 100-13 of the Zoning Ordinance; the height of the towers, in excess of 200 feet, could not be mitigated further without limiting or eliminating the towers’ functions; and, approval of petitioner’s application might create a precedent for future development of this type, threatening the ability of the area to develop as envisioned by the existing Master Plan.

This CPLR article 78 proceeding challenging the Board’s determination followed. Petitioner alleged that the Board’s determination was not supported by substantial evidence and was in fact contrary to a determination made by the Town of Lloyd Zoning Board of Appeals earlier that year in a SEQRA review, in which the Planning Board concurred, approving another transmission tower project known as the Walker Tower. The Walker Tower project involved the construction of a 400-foot-high FM radio transmission tower and accessory building at the southerly end of Illinois mountain in the Town of Lloyd which tower could be seen from both the FDR home and the Hudson River and in respect to which a special use permit was required.

Supreme Court annulled respondent’s determination and granted petitioner’s application for site plan approval. That court found "nothing in the record other than generalized complaints voiced at the public hearings * * * contradicted [the report of the Town’s consultant] or WEOK’s visual study.” The Appellate Division, with two Justices dissenting, affirmed. That court noted that both parties acknowledged that respondent’s denial of petitioner’s application was based on aesthetic reasons alone and concluded, inter alia, that "[w]hile petitioner’s ElSes demonstrated that it minimized negative visual impacts to the greatest extent practical, respondent failed to furnish any rationale for completely disregarding petitioner’s comprehensive and extensive visual impact analysis” and that "[a]s the only apparent grounds for denying petitioner’s application consisted of generalized community objections, which are contrary to the data provided, respondent’s determination lacks a substantial evidence basis in the record” (165 AD2d 578, 581-582).

The dissenting Justices would have dismissed the petition, noting that "aesthetic impact is a proper and valid basis for environmental review” and finding that respondent "expressed] cogent reasons for not giving conclusive weight to the study, reasons which were not overcome by petitioner’s responses to comments on the study contained in the final environmental impact statement” (id,., at 582, 584). Thus, the dissenters would find the determination supported by substantial evidence. Although the majority at the Appellate Division did not reach the issue of the prior approval of the Walker Tower project, the dissenters concluded that "the facts and circumstances of the earlier project were so completely dissimilar to the instant application as to not constitute a prior precedent requiring either approval of petitioner’s application by respondent or an explanation of its reasons for reaching a different result” (id., at 585). This appeal ensued.

II

The Legislature’s stated purpose in enacting SEQRA was to "declare a state policy which will encourage productive and enjoyable harmony between [people and their] environment; to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources; and to enrich the understanding of the ecological systems, natural, human and community resources important to the people of the state” (ECL 8-0101). Thus, the primary purpose of SEQRA "is to inject environmental considerations directly into governmental decision making” (Matter of Coca-Cola Bottling Co. v Board of Estimate, 72 NY2d 674, 679; see also, Akpan v Koch, 75 NY2d 561, 569). In furtherance of that purpose, the information obtained by lead agencies through the SEQRA process enables State and local officials to intelligently "assess and weigh the environmental factors, along with social, economic and other relevant considerations in determining whether or not a project or activity should be approved or undertaken in the best over-all interest of the people of the State” (Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215, 222; 1975 NY Legis Ann, at 438-439). SEQRA seeks to "strike a balance between social and economic goals and concerns about the environment” (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 414), by requiring an agency to engage in a systematic balancing analysis in every instance (Matter of Town of Henrietta v Department of Envtl. Conservation, supra, at 223). Aesthetic considerations are a proper area of concern in this balancing analysis inasmuch as the Legislature has declared that the "maintenance of a quality environment * * * that at all times is healthful and pleasing to the senses” is a matter of State-wide concern (ECL 8-0103 [1] [emphasis added]; see also, ECL 8-0105 [6]).

To achieve these purposes and goals, SEQRA imposes procedural and substantive requirements upon the agency charged with decision making in respect to proposed "actions”. Whenever it is determined that a proposed "action” may have a significant effect on the environment, a DEIS is required to be prepared and various other procedural steps are to be taken including soliciting comments on the DEIS, holding public hearings when appropriate (ECL 8-0109, 8-0105 [7]; 6 NYCRR 617.8) and preparing and filing a FEIS in respect to which comments are solicited and any further appropriate public hearing held (6 NYCRR 617.10 [g]). In addition to the procedural requirements, SEQRA imposes substantive requirements which include listing the various types of information that must be included in the EIS, a description of the proposed action with an assessment of its environmental impact and any unavoidable adverse environmental effects (ECL 8-0109 [2] [a]-[c]) and mitigation measures proposed to minimize the environmental impact (ECL 8-0109 [2] [f]).

If an agency proposes to approve a project, it must consider the FEIS and prepare written findings that the requirements of SEQRA have been met (ECL 8-0109 [8]). It must also prepare a written statement of the facts and conclusions in the FEIS and comments relied upon and the social, economic and other factors and standards which form the basis of its decision (6 NYCRR 617.9 [c]). Put differently, the agency must take a sufficiently "hard look” at the proposal before making its final determination and must set forth a reasoned elaboration for its determination (see, Akpan v Koch, 75 NY2d 561, 570, supra; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 415-416, supra). Where an agency determines to reject a proposed project, it must likewise take a sufficiently "hard look” and set forth a reasoned elaboration for its determination (see, Matter of Jackson v New York State Urban Dev. Corp., supra, at 416). As we have only recently observed, "[a]n agency’s compliance with its substantive SEQRA obligations is governed by a rule of reason and the extent to which particular environmental factors are to be considered varies in accordance with the circumstances and nature of particular proposals” (Akpan v Koch, 75 NY2d 561, 570, supra; see also, Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, supra).

The Board stated that it rejected petitioner’s site plan because the plan "failed to adequately minimize or avoid adverse environmental effects to the maximum extent practicable” and because the "environmental effects revealed in the Environmental Impact Statement process can not be adequately minimized or avoided by the mitigation measures identified as practical.” The Board based its determination primarily upon the project’s failure to comply with various zoning requirements and the fact that the towers "may be visible [from the FDR homestead]” and that local property owners found the lighting objectionable.

To the extent the Board’s determination is based upon the alleged failure of the plan to conform with various zoning regulations, we note, as did the Appellate Division, that except where the proposed action is a zoning amendment, SEQRA review may not serve as a vehicle for adjudicating "legal issues concerning compliance with local government zoning” (Matter of Town of Poughkeepsie v Flacke, 84 AD2d 1, 5, lv denied 57 NY2d 602). Indeed, ECL 8-0103 (6) specifically provides in pertinent part that "the provisions of this article do not change the jurisdiction between or among state agencies and public corporations” (see also, Matter of Town of Poughkeepsie v Flacke, supra; Gerrard, Ruzow, Weinberg, Environmental Impact Review in New York § 8.14, at 8-55). We assume, as did the Appellate Division, that the proposed WEOK project was a conforming use and conclude that alleged violations of the Lloyd Zoning Ordinance were not a valid basis for denying site plan approval pursuant to SEQRA.

That is not to say that local zoning laws are irrelevant to determinations made pursuant to SEQRA. They are indeed relevant. For example, the inclusion of a permitted use in a local zoning ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the local community (RPM Motors v Gulotta, 88 AD2d 658). Thus, here, although by no means determinative, it should not be overlooked that the aesthetic visual impact of the towers, was, we presume, considered at the time that radio and television towers were included as permitted uses in the Designed Business zone (see, Matter of North Shore Steak House v Board of Appeals, 30 NY2d 238, 243; RPM Motors v Gulotta, supra).

Compliance with the zoning law aside, the question remains, however, whether the Board otherwise has made a reasoned elaboration resulting from its "hard look” pursuant to SEQRA review such that it can be concluded that its findings and determination are supported by substantial evidence.

The often stated rule regarding our role in reviewing SEQRA determinations needs no extended discussion; it is not to weigh the desirability of any proposed action or to choose among alternatives and procedural requirements of SEQRA and the regulations implementing it (Matter of Village of Westbury v Department of Transp., 75 NY2d 62, 66), but to determine whether the agency took a "hard look” at the proposed project and made a "reasoned elaboration” of the basis for its determination (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, supra). Where an agency fails to take the requisite hard look and make a reasoned elaboration, or its determination is affected by an error of law, or its decision was not rational, or is arbitrary and capricious or not supported by substantial evidence, the agency’s determination may be annulled (see, CPLR 7803 [3]; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 363; Matter of Jackson v New York State Urban Dev. Corp., supra; see generally, 55 NY Jur 2d, Environmental Rights, § 65). Here, we conclude that the Board’s determination should be annulled because it is not supported by substantial evidence — substantial evidence being "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180) or " 'the kind of evidence on which responsible persons are accustomed to rely in serious affairs’ ” (People ex rel. Vega v Smith, 66 NY2d 130, 139).

Notwithstanding petitioner’s detailed Visual Impact Analysis which concluded that there would be no visual impact from the FDR site, the Planning Board determined that the towers might be visible from the FDR site. In so concluding, the Board relied on statements from some community members, agencies and other organizations, some of whom stated there might be a visual impact and others who stated that there definitely would be a visual impact. Critical to those views regarding visual impact from the FDR site was the supposition that the visual impact study was conducted under optimal conditions which impacted positively on the results of the study. Thus, the study was viewed as ambiguous and not establishing that under all conditions and at other times of the year, the condition of the foliage between the FDR site and the radio towers would be the same and would block the view from the FDR site; if the conditions and density of the foliage were less, there would be greater visibility of the towers. This reasoning is flawed, however, because the record demonstrates that at the time the visual impact study was conducted, there were no leaves on the trees. Thus, petitioner’s evidence of the visual impact from the FDR site was based on observations made under the least desirable conditions — when visibility of a tower radio transmitting facility would be greatest. Moreover, the comments and statements from community members and agencies do not appear to be supported by any factual data and at best are mere conjecture. Respondent’s finding that there may be a visual impact from the FDR homestead is unsupported by any factual data, scientific authority or any explanatory information such as would constitute substantial evidence. Thus, respondent’s conclusory finding that there would be an unacceptable negative aesthetic impact from the FDR viewpoint cannot be deemed a "reasoned elaboration” of its determination (see, Matter of Tehan v Scrivani, 97 AD2d 769, 771).

Although a particular kind or quantum of "expert” evidence is not necessary in every case to support an agency’s SEQRA determination, here, the record contains no factual evidence, expert or otherwise, to counter the extensive factual evidence submitted by petitioner. To permit SEQRA determinations to be based on no more than generalized, speculative comments and opinions of local residents and other agencies, would authorize agencies conducting SEQRA reviews to exercise unbridled discretion in making their determinations and would not fulfill SEQRA’s mandate that a balance be struck between social and economic goals and concerns about the environment (see, Matter of Jackson v New York State Urban Dev. Corp., supra). Nor could it be said that such a determination accords with "a rule of reason” (see, Akpan v Koch, supra). As one commentator has noted, "decision makers must not be given the freedom to either ignore or disregard the information that the environmental review process was designed to elicit if the process is to have any meaning” (Gitlen, The Substantive Impact of the SEQRA, 46 Albany L Rev 1241, 1253).

We do not intend to diminish in any way the importance of public comment with respect to any proposed site plan; SEQRA is designed to encourage public participation in the review process (ECL 8-0109 [4]-[6]). However, generalized community objections such as those offered here in response to the comprehensive data provided by petitioner, cannot, alone, constitute substantial evidence, especially in circumstances where there was ample opportunity for respondent to have produced reliable, contrary evidence (see, Matter of North Shore Steak House v Board of Appeals, 30 NY2d 238, 245, supra; Matter of Veysey v Zoning Bd. of Appeals, 154 AD2d 819, lv denied 75 NY2d 708; Syracuse Bros. v Darcy, 127 AD2d 588).

We reject petitioner’s contention that negative aesthetic impact factors may not constitute a sufficient basis upon which SEQRA determinations may be made. Indeed, as we noted earlier, aesthetic impact considerations may constitute an important factor in SEQRA review. Negative aesthetic impact considerations, alone, however, unsupported by substantial evidence, may not serve as a basis for denying approval of a proposed "action” pursuant to SEQRA review.

In view of our holding that respondent’s determination was not supported by substantial evidence, we find no need to address petitioner’s remaining arguments, including its contention regarding the Walker Tower. Accordingly, the order of the Appellate Division should be affirmed, with costs.

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

Order affirmed, with costs.

      . "Actions” are of various types and include "projects or activities directly undertaken by any agency * * * or projects or activities involving the issuance to a person of a lease, permit, license, certificate or other entitlement for use or permission to act by one or more agencies; [and] policy, regulations, and procedure-making” (ECL 8-0105 [4]).

      . No issue is raised on this appeal as to full compliance by the Board with the procedural requirements of SEQRA.


source: Caselaw Access Project

author: Hancock, Jr., J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v George Sloan, Appellant. The People of the State of New York, Respondent, v Terrance McMahon, Appellant.
    Argued February 13, 1992;
    decided April 7, 1992

      POINTS OF COUNSEL

      Lawrence A. Vogelman, Barry C. Scheck and Ellen Yaroshefsky for appellant in the first above-entitled action. I.
    Because the station house showup, made when appellant and his two codefendants were handcuffed sitting adjacent to rifles and handguns allegedly used in the robbery in a room full of uniformed police officers, was so suggestive, the trial court erred in allowing its admission as well as the subsequent in-court identifications. (People v Riley, 70 NY2d 523.) II. The trial court erred in precluding appellant from hearing and participating in the voir dire in violation of his fundamental right to participate in his own defense under the Fifth and Sixth Amendments and CPL 260.20. (People v Mullen, 44 NY2d 1; People v Velasco, 77 NY2d 469; United States v Crutcher, 405 F2d 239; Kentucky v Stincer, 482 US 730; People v Mehmedi, 69 NY2d 759, 985.) III. Appellant’s rights to an impartial jury and a fair trial were violated when the trial court arranged a transportation scheme which placed an alternate juror in the presence of a deliberating jury. (People ex rel. Nunns v County Ct., 188 App Div 424; People v Bouton, 50 NY2d 130; People v Cocco, 305 NY 282; People v King, 13 AD2d 264; People v Brizzolara, 90 AD2d 926; People v Eatmon, 136 AD2d 909; People v Santana, 163 AD2d 495, 76 NY2d 944; People v Rodriguez, 71 NY2d 214; People v Brown, 48 NY2d 388; People v Ahmed, 66 NY2d 307, 67 NY2d 647.) IV. The trial court’s jury instructions violated appellant’s rights under the United States and New York State Constitutions by allowing the jury to draw adverse inferences from appellant not taking the stand. (People v Britt, 43 NY2d 111; People v Forte, 277 NY 440; People v Fitzgerald, 156 NY 253; People v Reid, 135 AD2d 753; People v Diggs, 151 AD2d 359; People v Hayes, 140 NY 484; People v Lara, 148 AD2d 340, 75 NY2d 836; People v Buckley, 75 NY2d 843.)

      Steven B. Rosenfeld and Leslie U Cornfeld for appellant in the second above-entitled action. I.
    Exclusion of appellant from the side-bar voir dire constituted reversible error. (People v Ciaccio, 47 NY2d 431; People v Mullen, 44 NY2d 1; Maurer v People, 43 NY 1; People v Mehmedi, 69 NY2d 759; People v Jones, 159 AD2d 644; Snyder v Massachusetts, 291 US 97; People v Cain, 76 NY2d 119; Lewis v United States, 146 US 370.) II. A new trial is required because a discharged alternate juror was permitted to have close contact with the regular jurors during deliberations. (People v Eatmon, 136 AD2d 909; People v Ahmed, 66 NY2d 307; People v Bouton, 50 NY2d 130; People v Santana, 163 AD2d 495; People v King, 13 AD2d 264; People v Brizzolara, 90 AD2d 926; People v Cocco, 305 NY 282; People v Letizia, 155 AD2d 952.) III. Improper and unduly suggestive precinct showup identifications and tainted in-court identifications should not have been admitted into evidence. (People v Riley, 70 NY2d 523; People v Soto, 87 AD2d 618; People v Price, 111 AD2d 568; People v Malcolm, 139 Misc 2d 140; People v Ford, 100 AD2d 941; People v Hubener, 133 AD2d 233; People v Gildersleeve, 143 AD2d 361; People v Guillermo, 137 AD2d 832; People v Farraro, 144 AD2d 976.)

      Robert M. Morgenthau, District Attorney (Alan Gadlin and Norman Barclay of counsel), for respondent in the first and second above-entitled actions. I.
    Roland, Blohm and Northe’s in-court identifications and Roland’s identification of defendants at the station house were admissible, and rendered the introduction of any other identification no more than harmless error. (People v Riley, 70 NY2d 523; People v Logan, 25 NY2d 184, 396 US 1020; People v Gonzalez, 61 AD2d 666, 46 NY2d 1011; People v Duuvon, 77 NY2d 541; People v Burr, 70 NY2d 354, 485 US 989; People v McRay, 51 NY2d 594; People v Chipp, 75 NY2d 327; People v McPherson, 56 NY2d 696; People v Dickerson, 50 NY2d 937.) II. The trial court properly exercised its discretion in prescreening the prospective jurors at the side bar. (People v Thomas, 50 NY2d 467; People v Patterson, 39 NY2d 288, 432 US 197; People v Coons, 75 NY2d 796; People v Mehmedi, 69 NY2d 759; People v Harris, 76 NY2d 810; People v Bailey, 146 AD2d 788; People v Corley, 67 NY2d 105; People v Brantley, 168 AD2d 949; People v Howard, 167 AD2d 922; People v Blake, 158 AD2d 979.) III. As defendants recognized below, the trial court kept a discharged alternate juror separate from the deliberating jurors after deliberations had begun. (People v Thomas, 50 NY2d 467; People v Argibay, 45 NY2d 45, cert denied sub nom. HahnDiGuiseppe v New York, 439 US 930; People v Caceras, 154 AD2d 310; People v Morman, 137 AD2d 838; People v Calvin of Oakknoll, 110 AD2d 1044; People v Bonaparte, 78 NY2d 26; People v Santana, 163 AD2d 495; People v Webb, 78 NY2d 335; United States v Gagnon, 470 US 522.) IV. Defendants’ present complaint that the court instructed the jury improperly on their failure to testify is unpreserved and meritless. (People v Autry, 75 NY2d 836; People v Buckley, 75 NY2d 843; People v Ford, 66 NY2d 428; People v Teeter, 47 NY2d 1002; People v Jackson, 76 NY2d 908; People v Nuccie, 57 NY2d 818; People v Comer, 73 NY2d 955; People v Santiago, 52 NY2d 865; People v McLucas, 15 NY2d 167; People v Fitzgerald, 156 NY 253.) V. Defendants have no right to complain that Justice Crane granted their own request to excuse a juror. (People v Hopkins, 76 NY2d 872; People v Parker, 168 AD2d 917; People v Ford, 66 NY2d 428; People v Ferguson, 67 NY2d 383; People v Mullen, 44 NY2d 1; People v Velasco, 77 NY2d 469; People v Franklin, 166 AD2d 162; People v Caceras, 154 AD2d 310; People v Clark, 132 AD2d 704; People v White, 53 NY2d 721.) VI. Defendants’ belated claim that they are entitled to a new trial because the Trial Judge improperly delegated his responsibilities to a court officer and the Administrative Judge is meritless. (People v Harris, 76 NY2d 810; People v Ciaccio, 47 NY2d 431; People v Torres, 72 NY2d 1007; People v Ahmed, 66 NY2d 307; People v Bowles, 168 AD2d 562; People v Morman, 137 AD2d 838; People v Phelps, 74 NY2d 919; People v Kinchen, 60 NY2d 772; People v Ford, 78 NY2d 878.) VII. As defendants apparently recognized below, none of the jurors were sleeping during the trial, and the court took appropriate measures to ensure the jury’s attentiveness. (People v Brown, 160 AD2d 172; People v Burwell, 159 AD2d 407; People v Caceras, 154 AD2d 310; People v Lombardo, 61 NY2d 97; People v Argibay, 45 NY2d 45; People v Ferguson, 165 AD2d 789; People v Poole, 154 AD2d 560; People v Santiago, 52 NY2d 865; People v Russell, 112 AD2d 451.)
   OPINION OF THE COURT

Hancock, Jr., J.

In People v Velasco (77 NY2d 469), we held that defendants do not have the right to be personally present during informal questioning of prospective jurors that relates only to grounds for juror disqualification by the court, such as physical impairment, family obligations and work commitments. The issue presented here is whether a defendant has a right to hear and be present during conference questioning concerning issues touching upon the merits, such as in this case, the jurors’ knowledge of and reaction to pretrial publicity concerning the specific crime on trial and their attitude toward the prosecution’s key witness, a widely known television newscaster. For the reasons that follow, we hold that questioning the prospective jurors on such matters without the presence of defendants was error. There should, therefore, be a reversal and a new trial.

I.

On May 11, 1983, defendants McMahon and Sloan, with the aid of two others, allegedly robbed the Racing Club restaurant on the Upper East Side of Manhattan. John Roland, a local television newscaster, attempted to disarm Sloan during the robbery. A struggle ensued during which shots were fired from Sloan’s handgun; Sloan and Roland grappled until McMahon subdued Roland by hitting him several times on the head with a pistol. While the robbery was underway, a waiter escaped from the restaurant and fled to a nearby police station. Defendants were apprehended one-half block from the scene after the waiter returned with the police and pointed out defendants as they fled the restaurant and entered a getaway car. Roland and two other witnesses later identified defendants in showup identifications held at the station house.

At the subsequent trial, prior to commencement of the formal voir dire by counsel, the Judge conducted a side-bar voir dire of prospective jurors regarding the impact of pretrial publicity and the widely reported involvement of Roland in the crime. After swearing in 90 prospective jurors, the Judge questioned them individually as to their exposure to pretrial publicity, their familiarity with Roland and the weight that they would give his testimony, and their knowledge of police and arrest procedures and of the crime scene. Jurors were asked such questions as whether they could weigh a news reporter’s testimony fairly; whether they believed that a newscaster has a better ability to observe and recall events than other witnesses; and whether their own knowledge of Roland as a newscaster or their exposure to pretrial publicity would affect their ability to be impartial. Many prospective jurors stated that they knew Roland as a television personality and that they had heard that he had been "pistol-whipped” during the robbery, had been hailed as a "hero”, and had received an award for crime prevention because of his actions. The questioning, conducted at the bench and out of hearing of defendants, continued until 18 venire members were chosen for formal voir dire.

Defendants were subsequently convicted after a jury verdict of robbery and weapons possession charges. In separate unanimous decisions, the Appellate Division affirmed the convictions (People v McMahon, 167 AD2d 137; People v Sloan, 169 AD2d 513). We now reverse.

II.

New York has long held that defendants have a fundamental right to be present with counsel at all material stages of a trial (see, CPL 260.20; People v Turaine, 78 NY2d 871; People v Mehmedi, 69 NY2d 759; People v Ciaccio, 47 NY2d 431; People v Mullen, 44 NY2d 1; Maurer v People, 43 NY 1; NY Const, art I, § 6; Preiser, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 260.20, 1992 Supp Pamph, at 238). In People v Velasco (77 NY2d 469, supra), we summarized the law, stating:

"In People v Mullen (44 NY2d 1), we delineated the scope of a defendant’s statutory and constitutional rights to be present during court proceedings. We stated that under CPL 260.20, a defendant’s right to be present during the trial of an indictment included presence during the impaneling of the jury, the introduction of evidence, the summations of counsel, and the court’s charge to the jury (see, People v Mullen, 44 NY2d, at 4; Maurer v People, 43 NY 1, 3). We further noted that '[a]part from our statutory provision, due process requires the presence of a defendant at his trial "to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” (Snyder v Massachusetts, 291 US 97, 108.) His presence is required only where his absence would have a substantial effect on his ability to defend. (Snyder v Massachusetts, 291 US, at pp 105-106, supra * * *.)’ (44 NY2d, at 4-5.)” ad., at 472.)

In Velasco, we concluded that a defendant’s presence was not required when the court posed questions relating only to the qualifications of jurors in the general sense — questions concerning such matters as physical impairments, family obligations, and work commitments. We pointed out that the decisions of whether to excuse jurors on the grounds explored by such pre-voir dire screening were matters solely for the court, in which neither the defendant nor his counsel had a role (id., at 473). Thus, we held that a defendant’s presence or absence at such questioning could have had no effect on the ultimate fairness of the trial proceeding (id., at 473). We concluded that "[ujnder the circumstances, defendant’s presence at the bench conference would have been ’useless, or the benefit but a shadow.’ (Snyder v Massachusetts, 291 US, at 106-107.)” (Id., at 473.) Defendant, therefore, had no right to be present at such side-bar voir dire questioning.

Unlike Velasco, however, defendants’ presence here could have had a substantial effect on their ability to defend against the charges. The questioning went well beyond the matters pertaining to the jurors’ general qualifications covered in Velasco and delved into attitudes and feelings concerning some of the events and witnesses involved in the very case to be heard. The effect on the jurors of the pretrial publicity, their attitudes toward and possible predisposition to believe Roland, a key prosecution witness, and their ability to weigh the evidence objectively were subjects properly addressed in a formal voir dire.

Defendants’ presence at the questioning on such matters and the resultant opportunity for them to assess the jurors’ facial expressions, demeanor and other subliminal responses as well as the manner and tone of their verbal replies so as to detect any indication of bias or hostility, could have been critical in making proper determinations in the important and sensitive matters relating to challenges for cause and peremptories (see, Snyder v Massachusetts, supra, at 105; People v Ciaccio, 47 NY2d 431, 436, supra; People v Ganett, 68 AD2d 81, 87, affd 51 NY2d 991). We cannot conclude that defendants’ presence at the side-bar questioning would have been of no benefit or that their absence during such questioning would not have had a substantial effect on their ability to defend (People v Velasco, supra, at 473). Their exclusion from the questioning was error.

We have reviewed defendants’ other contentions and find them to be without merit.

Accordingly, in each case the order of the Appellate Division should be reversed and a new trial ordered.

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

In each case: Order reversed, etc.


author: Bellacosa, J.

text:
    In the Matter of John A. Ward et al., Appellants, v Roger Bennett, as Chairman of the Board of Standards and Appeals of the City of New York, et al., Respondents.
    Argued March 24, 1992;
    decided May 5, 1992

      POINTS OF COUNSEL

      Simon H. Rothkrug for appellants. I.
    Absent the requested building permit, appellants’ property is rendered worthless. II. Both a long line of cases and controlling Court of Appeals precedent clearly establish that the courts below erred. (Bauman v Ross, 167 US 548; Forster v Scott, 136 NY 577; Headley v City of Rochester, 272 NY 197; Jensen v City of New York, 42 NY2d 1079; Matter of Caperton v Village of Lawrence, 161 Misc 23; Roer Constr. Corp. v City of New Rochelle, 207 Misc 46; R. B. I. Enters, v City of Rochester, 47 Misc 2d 527, revd sub nom. Rochester Business Inst. v City of Rochester, 25 AD2d 97; Vangellow v City of Rochester, 190 Misc 128; Rand v City of New York, 3 Misc 2d 769; Arveme Bay Constr. Co. v Thatcher, 278 NY 222.) III. The courts below misapplied Petosa v City of New York (135 AD2d 800, 71 NY2d 807). IV. Appellants’ taking claim is ripe for review. There is no alternative administrative remedy available. The majority opinion below is patently in error. (Borducci v City of Yonkers, 144 AD2d 321; Williamson Planning Commn. v Hamilton Bank, 473 US 172; Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510; de St. Aubin v Flacke, 68 NY2d 66; Long Is. Light. Co. v Cuomo, 666 F Supp 370; First Lutheran Church v Los Angeles County, 482 US 304; MacDonald, Sommer & Frates v Yolo County, 477 US 340; Weissman v Fruchtman, 700 F Supp 746; Herrington v County of Sonoma, 834 F2d 1488.) V. The Board of Standards and Appeals’ (BSA) denial of appellants’ application effects an unconstitutional taking of appellants’ property. (Seawall Assocs. v City of New York, 74 NY2d 92; First Lutheran Church v Los Angeles County, 482 US 304; Pennsylvania Coal Co. v Mahon, 260 US 393; French Investing Co. v City of New York, 39 NY2d 587; Agins v Tiburon, 447 US 255; Penn Cent. Transp. Co. v New York City, 438 US 104; Nectow v City of Cambridge, 277 US 183; Nollan v California Coastal Commn., 483 US 825; Andrus v Allard, 444 US 51; de St. Aubin v Flacke, 68 NY2d 66; Arverne Bay Constr. Co. v Thatcher, 278 NY 222.) VI. The BSA arbitrarily and capriciously denied appellants’ application resulting in a de facto unconstitutional taking of appellants’ property. The BSA’s resolution contains material misstatements of the facts. (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Matter of Pell v Board of Educ., 34 NY2d 222.)

      O. Peter Sherwood, Corporation Counsel (Lawrence A. Salvato and Ellen B. Fishman of counsel), for respondents. I.
    A General City Law § 35 application for a permit to build in the bed of a mapped street and a "demapping” application filed pursuant to New York City Charter §§ 197-c through 199 are two available steps that can prevent the alleged harm caused by a General City Law § 35 building prohibition. Therefore, a constitutional takings claim remains premature until both steps are pursued. (New York Pub. Interest Research Group v Carey, 42 NY2d 527; Matter of New York State Inspection, Sec. & Law Enforcement Employees v Cuomo, 64 NY2d 233; Combustion Eng’g v Travelers Indem. Co., 53 NY2d 875; Matter of Hearst Corp. v Clyne, 50 NY2d 707; Matter of State Indus. Commn., 224 NY 13; Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 479 US 985; MacDonald, Sommer & Frates v Yolo County, 477 US 340; Williamson Planning Commn. v Hamilton Bank, 473 US 172; Town of Islip v Zalak,
      165 AD2d 83; de St. Aubin v Flacke, 68 NY2d 66.) II. More than amply supported by the evidence, BSA’s decision to deny the General City Law § 35 application for a permit to build in the bed of a mapped street had a rational basis and was neither illegal, arbitrary, nor an abuse of the agency’s discretion. (Headley v City of Rochester, 272 NY 197; Matter of Village Bd. v Jarrold, 53 NY2d 254; Matter of Consolidated Edison Co. v Hoffman, 43 NY2d 598; Matter of Cowan v Kern, 41 NY2d 591; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Matter of Purdy v Kreisberg, 47 NY2d 354; Matter of Pell v Board of Educ., 34 NY2d 222; Agins v Tiburon, 447 US 255; Penn Cent. Transp. Co. v New York City, 438 US 104.)
   OPINION OF THE COURT

Bellacosa, J.

The New York City Department of Buildings (DOB) denied the petitioner Wards’ application for a permit to build a single-family house in the bed of a mapped, but unopened and undeveloped, Staten Island street. After an unsuccessful appeal to the Board of Standards and Appeals (Board), the Wards brought this CPLR article 78 proceeding alleging that the Board acted arbitrarily and capriciously, and that denial of their administrative appeal deprived them of the use of their property without just compensation in violation of the Federal and State Constitutions (US Const 5th, 14th Amends; NY Const, art I, § 7). Both courts below held that the Board had a sufficient basis for denying the administrative appeal and that the Wards’ confiscation claim was premature due to their failure to pursue "demapping” under sections 197-c and 197-d of the New York City Charter.

We agree that the Board’s determination was not arbitrary and capricious. However, we conclude that the Wards’ confiscation claim is ripe for judicial review. The independent demapping remedy available to the Wards only from the City Council is not a bar to judicial consideration of the constitutionality of the Board’s final action as it bears on the Wards’ claim of an uncompensated confiscation of their property. We therefore reinstate so much of the petition as alleged an unconstitutional taking of property and remit to the Supreme Court for further proceedings.

The property at issue is a vacant and unimproved lot located at 31 Dallas Street in Richmond County. The Wards took title to the property in 1966 with knowledge of and expressly subject to an extension through the property of a "paper” street named North Burgher Avenue. As shown on a 1944 map, the paper street overlapped more than 85% of the Wards’ property. Twenty years after taking title, the Wards applied to the DOB for a permit to build a two-story single-family house on the property. The DOB denied the application citing General City Law § 35, which prohibits issuance of permits to build in the bed of a mapped street.

The Wards appealed to the Board, which requested and received comments from several interested New York City agencies. The Department of Environmental Protection (DEP) stated in a letter that the bed of North Burgher Avenue was required for the installation of two "future” sanitary and storm sewers. The Department of Transportation Bureau of Highway Operations (DOT) stated its concern that established grades, drainage plans and sewer district water supply lines would have to be revised if the application were granted. That agency also noted that grade changes could cause damage to existing dwellings and that North Burgher Avenue had recently been improved just north of the Wards’ property. After two days of hearings, the Board unanimously voted to deny the appeal. The resolution incorporated the comments of the DEP and DOT, and stated that the proposed building would bar uninterrupted development of North Burgher Avenue to the south.

The Wards commenced this article 78 proceeding requesting judgment declaring that the Board had acted arbitrarily and capriciously and that they had a right to commence construction on their property. They also requested a hearing to determine damages resulting from the alleged unlawful taking of their property without just compensation. Supreme Court, Richmond County, denied the application and dismissed the petition without prejudice to any demapping rights under section 197-c of the New York City Charter (Uniform Land Use Review Procedure [ULURP]). The court concluded that the Board had a "rational and proper basis to deny [the] application for the building permit because the proposed construction would interfere with the planned future development of North Burgher Avenue and the drainage plans for the area.” Supreme Court also concluded that the Wards’ unconstitutional taking argument was not "ripe” for determination "[b]ecause petitioners still have an administrative avenue to pursue, i.e. a demapping under ULURP.” The Appellate Division affirmed, characterizing the prematurity problem as a failure to "exhaust * * * administrative remedies” (174 AD2d 681, 682, lv denied as unnecessary 78 NY2d 995). Two Justices dissented in part, agreeing that the Board’s denial was rational but concluding that the taking argument was ripe. The Wards then took this appeal as of right.

General City Law § 35 generally prohibits issuance of a permit for "any building in the bed of any street or highway shown or laid out on [an official] map or plan.” However, when a property owner can establish that the land within such mapped street is not yielding a fair return, or when the proposed street extension has been mapped for at least 10 years but the City has not acquired title, the Board of Appeals is empowered to grant a building permit. Decisions of the Board of Appeals are judicially reviewable "in the same manner and pursuant to the same provisions as in appeals from the decisions of such board upon zoning regulations” (General City Law § 35).

The standard of judicial review in such cases is well established:

"The courts may set aside a zoning board determination only where the record reveals illegality, arbitrariness or abuse of discretion. * * * Phrased another way, the determination of the responsible officials in the affected community will be sustained if it has a rational basis and is supported by substantial evidence in the record.” (Matter of Cowan v Kern, 41 NY2d 591, 598, rearg denied 42 NY2d 910.)

Here, the record indicates that in connection with its consideration of the Wards’ appeal, the Board assessed comments from several New York City agencies. These agencies expressed concern that the proposed building would adversely affect further development of the mapped street, including the installation of sanitary and storm sewers, and grading and drainage in the area. We agree with the courts below that this evidence provides a substantial, rational basis to support the Board’s discretionary determination under General City Law § 35 denying the Wards’ application for a building permit.

The Wards’ constitutional confiscation claim is discrete from the article 78 challenge to the Board’s determination. The courts below rejected the confiscation claim on the ground that it was not "ripe” for judicial consideration. In holding that the Wards had not "exhausted their administrative remedies”, they blurred the distinction between these two defensive doctrines, described in Church of St. Paul & St. Andrew v Barwick as follows:

"Ripeness pertains to the administrative action which produces the alleged harm to plaintiff; the focus of the inquiry is on the finality and effect of the challenged action and whether harm from it might be prevented or cured by administrative means available to the plaintiff. The focus of the 'exhaustion’ requirement, on the other hand, is not on the challenged action itself, but on whether administrative procedures are available to review that action and whether those procedures have been exhausted.” (67 NY2d 510, 521 [emphasis added], cert denied 479 US 985.)

No further administrative avenues are open to review the Board’s determination denying the Wards’ application for a building permit. Therefore, the exhaustion doctrine is not implicated here. The confiscation claim, on the other hand, turns on ripeness, which does not occur until "the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue” and has "arrived at a definitive position on the issue that inflicts an actual, concrete injury.” (Williamson Planning Commn. v Hamilton Bank, 473 US 172, 186, 193 [emphasis added]; see also, de St. Aubin v Flacke, 68 NY2d 66, 75.)

The Board is the exclusive governmental entity empowered to grant a permit to build in the bed of North Burgher Avenue. Its resolution confirming the DOB denial of the Wards’ building permit constitutes its "final” and "definitive” decision regarding the availability of the permit. No further relief in this respect is available to the Wards from the Board. Thus, this is not a case like Church of St. Paul & St. Andrew v Barwick (67 NY2d 510, supra), where some measure of administrative relief could still be obtained from the same governmental agency whose determination was being challenged, thus blocking judicial review for lack of ripeness.

Moreover, the ripeness doctrine does not impose a threshold barrier requiring pursuit of all possible remedies that might be available through myriad government regulatory and legislative bodies (see, de St. Aubin v Flacke, 68 NY2d 66, supra; Petosa v City of New York, 135 AD2d 800, lv denied 71 NY2d 807). Indeed, we have said such a requirement might create a "bureaucratic nightmare” and undue hardship (de St. Aubin v Flacke, supra, at 75-76; Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 519-520, supra). An aggrieved property owner could be effectively blocked from seeking meaningful judicial review of a confiscation claim until, for example, a change in governing law — a possibly excessively burdensome course of action, such as is presented in this case. Indeed, the relevant alternative relief here is available only through an elaborate demapping procedure, which is costly, cumbersome, lengthy and requires the final approval of the New York City Council, the ultimate legislative body of the City (see, Kaskel v Impellitteri, 306 NY 73, 80, cert denied 347 US 934; Borducci v City of Yonkers, 144 AD2d 321, 324; Matter of Asness v City of New York, 4 AD2d 677, affg without opn 5 Misc 2d 779).

Thus, we have no occasion to speculate whether the ripeness doctrine may be interposed to block judicial review in those circumstances where a final determination of one administrative agency may be readily remedied by resort to another administrative entity with concurrent or efficacious, relevant jurisdiction over land development. Under our governing principles and precedents (see, e.g., de St. Aubin v Flacke, 68 NY2d 66, supra; Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, supra), the Wards’ confiscation claim in this case is ripe.

Accordingly, the order of the Appellate Division should be modified, without costs, and the case remitted to Supreme Court, Richmond County, for further proceedings in accordance with this opinion, and as so modified, affirmed.

Chief Judge Wachtler and Judges Kaye, Titone, Hancock, Jr., and Yesawich, Jr., concur; Judge Simons taking no part.

Order modified, without costs, and case remitted to Supreme Court, Richmond County, for further proceedings in accordance with the opinion herein.

       Designated pursuant to NY Constitution, article VI, § 2.


author: Yesawich, Jr., J.

text:
    The People of the State of New York, Appellant, v Ricardo Lopez, Respondent.
    Argued March 24, 1992;
    decided May 5, 1992

      POINTS OF COUNSEL

      Richard A. Brown, District Attorney (Andrew Zwerling, Barbara D. Underwood and Merri Turk Lasky of counsel), for appellant.
    An owner’s affidavit of the value of stolen property or the amount of damage thereto, submitted pursuant to CPL 190.30 (3), constitutes legally sufficient evidence of the facts stated therein. (Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; Patrolmen's Benevolent Assn. v City of New York, 41 NY2d 205; People v Womble, 111 AD2d 283; Matter of Roballo v Smith, 63 NY2d 485; Matter of Albano v Kirby, 36 NY2d 526; People v Calderon, 143 Misc 2d 315; People v Booker, 120 Misc 2d 884; People v White, 73 NY2d 468; Trode v Omnetics, 106 AD2d 808; Glazer v Quittman, 84 Misc 2d 561.)

      Laura R. Johnson, Robert M. Baum and Michele Maxian for respondent. I.
    CPL 190.30 (3) does not automatically render owners’ affidavits legally sufficient evidence. (People v Valinoti, 26 NY2d 553; People v Carter, 19 NY2d 967; People v Supino, 64 AD2d 720; People v Calbud, Inc., 49 NY2d 389; People v Powell, 58 AD2d 964; People v Peetz, 7 NY2d 147.) II. The complainant’s Grand Jury affidavit stating "value $2,500” was not legally sufficient evidence of value. (People v Batashure, 75 NY2d 306; People v Simpson, 132 AD2d 894; People v Jennings, 69 NY2d 103; People v Pelchat, 62 NY2d 97; People v James, 67 NY2d 662; People v Harold, 22 NY2d 443; People v Stein, 172 AD2d 1060; People v Selassie, 166 AD2d 358; People v Share, 151 AD2d 1016; People v Sweeney, 125 AD2d 978.)
   OPINION OF THE COURT

Yesawich, Jr., J.

The issue presented is whether an affidavit, submitted to a Grand Jury pursuant to CPL 190.30 (3), wherein the owner states in conclusory terms the worth of allegedly stolen property and the amount of physical damage to it, without indicating the basis for that valuation, can sustain an indictment where value is an element of the offense charged. We hold that it does not.

A Queens County Grand Jury indicted defendant for offenses arising out of his August 8, 1990 arrest while in possession of a stolen 1985 Pontiac owned by Pedro Medina. The car had a broken right rear vent window, trunk lock, luggage rack and steering column. Defendant was charged with three felonies: grand larceny in the fourth degree (Penal Law § 155.30 [8] [stealing a motor vehicle having a value exceeding $100]), criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [5] [possession of a stolen motor vehicle valued in excess of $100]), and criminal mischief in the third degree (Penal Law § 145.05 [damaging property of another in an amount exceeding $250]), and a class A misdemeanor, unauthorized use of a motor vehicle in the third degree (Penal Law § 165.05 [1]).

The indictment was based on a form affidavit, attested to by the victim Medina, which recited that he was the owner of the vehicle, that defendant did not have his consent to use it, that the amount of damage to the window and steering column exceeded $250, and that the value of the vehicle was over $2,500. Supreme Court found that the affidavit, the only purported proof of value adduced by the prosecutor, was insufficient to establish valuation because it did not explain the basis for Medina’s opinion respecting the value of the car or the monetary damages inflicted and granted defendant’s motion to dismiss the indictment to the extent of reducing the first three counts to misdemeanors requiring no proof of value (Penal Law §§ 155.25, 165.40, 145.00 [1]). The Appellate Division affirmed, and a Judge of this Court granted the People permission to appeal.

The People maintain that both the plain language of CPL 190.30 (3) and the intent leading to its enactment compel a conclusion that an unsupported affidavit from the victim is indeed legally sufficient evidence on the issue of value. Although we have not heretofore squarely confronted this question (see, e.g., People v James, 67 NY2d 662; People v Carter, 19 NY2d 967), the Appellate Divisions in all four Departments have uniformly concluded that a victim must provide a basis of knowledge for his statement of value before it can be accepted as legally sufficient evidence of such value (see, e.g., People v Stein, 172 AD2d 1060 [4th Dept], lv denied 78 NY2d 975; People v Selassie, 166 AD2d 358 [1st Dept], lv denied 77 NY2d 911; People v Bernard, 123 AD2d 324 [2d Dept]. lv denied 69 NY2d 708; People v Clark, 91 AD2d 1102 [3d Dept]). CPL 190.30 (3) (b) and (c) allow an owner of property to furnish a written or oral statement, made under oath, to establish the monetary value of, or damage to, that person’s property. By permitting evidence of value in this form to be introduced at Grand Jury proceedings, the Legislature intended to eliminate the need to have complainants personally appear before that body (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 180.60, at 140). Nothing contained in the language of the statute or its legislative history suggests, as the People would have it, that the Legislature sought to effect a substantive change in New York law by conferring legally sufficient status upon a lay witness’ unsupported statement of value.

Nor does the Legislature’s amendment of CPL 190.30 (3) in 1976, a year after its enactment, by adding paragraph (e), which specifically requires an expert’s affidavit of value to contain a statement as to the basis of that opinion but imposes no such similar requirement when the affidavit of value emanates from an owner, denote that the Legislature intentionally omitted the basis requirement from an owner’s affidavit. The sponsor’s memorandum supporting enactment of paragraph (e) discloses that the Legislature recognized that a basis of knowledge for valuation is necessary:

"It has been brought to our attention, however, that in most instances an owner cannot actually testify to the value of this property. For this reason, the proposed amendment would permit a deposition by an expert who has examined and appraised the stolen property or property of a similar nature, so that this issue could be presented in evidence in pretrial proceedings. This, in most instances, would be better evidence than a statement by the owner.” (Sponsor’s Mem, 1976 NY Legis Ann, at 41 [emphasis added].)

Were no such basis required, paragraph (e) would have been unnecessary since "in most instances” the owner of the property is available to supply a written or oral statement and could give an unsupported lay person’s opinion as to value.

Lastly, our affirmance of the Appellate Division’s determination does not, as the People intimate, require the victim to be physically present at Grand Jury proceedings, but simply that the People insure that the affidavit submitted contains a basis of knowledge for the witness’ statement as to value so that the Grand Jury can reasonably infer, rather than merely speculate, that the property, or damage to property, has the requisite value to satisfy the statutory threshold.

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

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

Order affirmed.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    The People of the State of New York, Appellant, v David Evans, Respondent. The People of the State of New York, Appellant, v Dana Davis, Respondent. The People of the State of New York, Appellant, v Juan Oquendo, Respondent.
    Argued March 25, 1992;
    decided May 7, 1992

      POINTS OF COUNSEL

      Richard A. Brown, District Attorney (John Castellano, Barbara Underwood and Andrew Zwerling of counsel), for appellant in the first, second and third above-entitled actions.
    Defendants’ right to testify before the Grand Jury was satisfied by the offer to permit them to testify at a reopened proceeding when at the time and place scheduled for them to testify, the Department of Correction had failed to produce them, and their lawyer had failed to request a delay. (People v Cade, 74 NY2d 410; People v Young, 138 AD2d 764; People v Skrine, 125 AD2d 507; People v Shervington, 157 AD2d 678; People v Bey-Allah, 132 AD2d 76; People v Dillard, 160 AD2d 472; People v Taylor, 142 Misc 2d 349; People v Acevedo, 69 NY2d 478; People v Davis, 58 NY2d 1102; People v Arroyo, 54 NY2d 567.)

      Laura Kreel Wexler and Philip L. Weinstein for respondents in the first, second and third above-entitled actions.
    Where respondents had served timely notice of their intent to testify before the Grand Jury and their counsel repeatedly notified the People, on the day respondents were to be heard that they would testify, the prosecutor denied respondents their statutory right to testify before the Grand Jury by obtaining a vote before the incarcerated respondents were produced by the Department of Correction. (People v Bey-Allah, 132 AD2d 76; People v Jones, 126 Misc 2d 104; People v Cade, 74 NY2d 410; People v Young, 138 AD2d 764; People v Skrine, 125 AD2d 507; People v Bizzell, 144 Misc 2d 1000; People ex rel. Maxian v Brown, 77 NY2d 422; Matter of Borello v Balbach, 112 AD2d 1051; People v Spence, 139 Misc 2d 77; People v Winslow, 140 Misc 2d 210.)
   OPINION OF THE COURT

Bellacosa, J.

The legal question common to these three cases arises out of the interpretation and practical interplay between CPL 190.50 (5) and 180.80. CPL 190.50 (5) affords individuals preliminarily accused of crimes the right to testify before a Grand Jury weighing the criminal charges against them provided that timely notice is given by the accused. CPL 180.80 requires the release of individuals being held in pretrial detention pending action of a Grand Jury after 120 or 144 hours of custody unless, among other neutralizing circumstances, an indictment has been voted.

The issue is whether these three defendants were deprived of their statutory right to appear and testify before a Grand Jury under CPL 190.50 (5) where, despite their written requests served on the People at their arraignments on felony complaints, the prosecutor nevertheless proceeded to present criminal charges to the Grand Jury in order to avoid the automatic and imminent consequences of the People’s failure to satisfy CPL 180.80. We also consider whether the statutory right to appear was satisfied when the prosecutor offered these defendants the opportunity to have their say after the Grand Jury had already voted to indict them.

Supreme Court, Queens County, dismissed each indictment. The Appellate Division heard the three People’s appeals together and affirmed for the reasons stated in its Oquendo memorandum decision (People v Oquendo, 172 AD2d 566; People v Evans, 172 AD2d 557; People v Davis, 172 AD2d 554), reasoning that "[t]he opportunity to testify before a Grand Jury which has already considered the matter and voted to indict, is qualitatively different [from] the right to testify prior to the time that the Grand Jury has been charged and votes” (172 AD2d, at 567, supra). It held that in these situations in which defendants gave timely statutory notice prior even to the Grand Jury presentments, the right conferred by CPL 190.50 (5) to testify before a Grand Jury "must include the right to testify before the Grand Jury has voted on the matter” (172 AD2d, at 567-568, supra [emphasis in original]). On a grant of leave to the People in each case by a Judge of this Court, we affirm the orders of the Appellate Division affirming Supreme Court’s dismissal of the respective indictments.

These appeals stem from independent arrests and felony complaints. Defendant Oquendo was charged with criminal sale of a controlled substance, third degree, and criminal possession of a controlled substance, seventh degree; defendant Evans was charged with grand larceny and criminal possession of stolen property in the third degree; and defendant Davis was charged with robbery in the first and second degree, among other crimes. At their separate arraignments the day after their arrests, the People served defendants with notice under CPL 190.50 (5) (a) that criminal charges would be presented to a Grand Jury. Defendants responded with written notices under that statute that they intended to exercise their right to testify before the Grand Jury. Defendants were held in pretrial detention at Hikers Island because they could not make bail, and their cases were adjourned to a scheduled date and time for presentment and for their appearances before the Grand Jury. They were so notified.

However, on the scheduled dates, which in each case was the last day of the CPL 180.80 period, and despite court orders for their production before the Grand Jury, Evans and Oquendo were not produced by the Department of Correction until after the indictments were already voted. Defendant Davis was produced in timely fashion, but he was returned to the detention facility before being given the opportunity to testify "due to the lack of security”. According to the prosecutor’s affirmations, the Assistant District Attorneys presented the respective cases to the Grand Jury, instructed it on the law, and obtained indictments in order to avoid the consequences of CPL 180.80.

The People, however, did not immediately file the indictments with the court. Defense counsel contacted the prosecutors and objected" to the voting of the indictments in the face of defendants’ nonproduction and nonappearance. The Assistant District Attorneys offered to further delay filing the indictments, to reopen the Grand Jury proceedings, and to allow defendants to testify before the same Grand Jury that had already voted to indict them. The attorneys for the defendants rejected this suggestion and the indictments were filed with the court.

When defendants were arraigned on the indictments, their attorneys moved to dismiss pursuant to CPL 210.20 (1) (c), 210.35 (4) and 190.50 (5) (c) on the ground that the People had failed to afford defendants an opportunity to exercise their timely invoked right to appear before the Grand Jury. Defendants assert that they were entitled to appear prior to the Grand Jury vote since they had provided notice of intent to testify before presentment and vote. The People counter that the opportunity to testify before the Grand Jury at a reopened presentment satisfied the literal right conferred by CPL 190.50 (5), that defendants would not have been prejudiced by this procedure, and that the People should not be burdened by the failure of the New York City Department of Correction to produce the defendants because the District Attorney does not control that Department. The People argue that CPL 190.50 (5) merely requires defendants’ appearance any time prior to filing of an indictment, regardless of when defendants served notice of intent, since the timing mechanism for defendants’ invocation of the right continues until such filing. Further, the People argue that in these circumstances they should not be required to delay Grand Jury votes where such a delay would result in release of detained individuals pursuant to the mandate of CPL 180.80. To the extent the People rely on People v Cade (74 NY2d 410), we note that the case involved a different statute, CPL 190.75, which is inapplicable here and in no way supports the People’s contentions in the instant situation.

CPL 190.50, adopted in 1970 (L 1970, ch 996, § 1) as part of the recodification of the Code of Criminal Procedure, effectively expanded an accused’s rights related to impending Grand Jury proceedings. Under Code of Criminal Procedure § 250 (2), from which CPL 190.50 was partly derived, the District Attorney was not required to notify an accused that Grand Jury action was possible. If a person learned of potential Grand Jury action and wished to testify, that person was required, prior to any vote, to serve notice of intent to testify in order to become entitled to a prevote appearance (Code Crim Pro § 250 [2]; Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 190.50, at 145 [1971]).

The Criminal Procedure Law imposes a new obligation on prosecutors under CPL 190.50 (5) (a): a defendant must be informed that a Grand Jury proceeding against that person is pending, in progress or about to occur, if that person has been arraigned on an undisposed felony complaint charging an offense which is a subject of the prospective or pending Grand Jury proceeding. CPL 190.50 (5) (a) then adds in pertinent part that "[w]hen a criminal charge against a person is being or is about to be or has been submitted to a grand jury, such person has a right to appear before such grand jury as a witness in his [or her] own behalf if, prior to the filing of any indictment * * * he [or she] serves upon the district attorney of the county a written notice making such request” (emphasis added). Once an accused serves such notice requesting an appearance before the Grand Jury, the District Attorney "must notify the fore[person] of the grand jury of such request, and must subsequently serve upon the applicant * * * a notice that [the applicant] will be heard by the grand jury at a given time and place. Upon appearing at such time and place * * * such person must be permitted to testify before the grand jury and to give any relevant and competent evidence concerning the case under consideration” (CPL 190.50 [5] [b]). The District Attorney must afford defendant "reasonable time” to exercise the right to appear as a witness at the Grand Jury (CPL 190.50 [5] [a]).

Thus, in addition to expanding an accused’s rights to receive notice from the People of pending or prospective Grand Jury proceedings, CPL 190.50 (5) also enlarges the window frame for potential indictees to testify by allowing them to serve notice anytime "prior to the filing of any indictment” (CPL 190.50 [5] [a]). There is absolutely no legislative history or good reason to suppose that these enlargements were simultaneously intended to narrow the pre-Criminal Procedure Law right to a prevote appearance under the circumstances presented in these cases.

The expanded statutory rights created by CPL 190.50 (5) arguably contemplate defendants personally presenting evidence even after a Grand Jury has voted to indict. However, that only highlights the question presented by these cases and does not answer it. First of all, while CPL 190.50 (5) unambiguously establishes the timing requirement of defendants’ written notice of intent to appear, i.e., "prior to the filing of any indictment” (emphasis added), it does not correspondingly fix the timing of defendants’ appearance or expressly connect the timing of defendants’ appearance to the timing of defendants’ notice, i.e., before or after a Grand Jury vote to indict. In this respect, the statute is silent and does not unambiguously resolve whether individuals who give timely notice at a reasonable point prior to a Grand Jury presentment and vote must be given a preindictment-vote opportunity to testify.

In view of the lack of express correlation, the Court must interpret CPL 190.50 (5) and apply it to the situations at hand by appropriately resorting to legislative intent, purpose and history, meager as they appear to be. Our primary consideration in interpreting this statute is to ascertain and give effect to the intention of the Legislature (compare, People v Laing, 79 NY2d 166; see also, Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 674-675; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208).

Our reading of CPL 190.50 (5) together with its history and purpose warrants the conclusion that the Legislature intended that individuals who give timely notice reasonably prior to the prosecution’s presentment of evidence and prior to the Grand Jury vote on an indictment are entitled to testify before the vote. This interpretation properly effectuates the purposes underlying the statute by protecting defendants’ valued statutory option to appear at this critical accusatory stage to offer testimony that may affect the Grand Jury’s consideration of the otherwise exclusive, ex parte presentment of evidence by the prosecution. Further, the District Attorney’s statutory obligation to notify the Grand Jury foreperson when an accused has served notice of intent to appear (CPL 190.50 [5] [b]) surely contemplates that defendant will be afforded a prevote appearance, since the statute fixes the time in such circumstances as within a "reasonable time” (CPL 190.50 [5] [a]). We discern nothing in the statutory language or the legislative history justifying a dilution of an accused’s personal right to appear before the Grand Jury before that body has been instructed on the law by the prosecutor and before it has deliberated on the evidence and voted on the criminal charges against the defendant. This view comports with the raison d’etre of indictment by Grand Jury: "to prevent the people of this State from potentially oppressive excesses by the agents of the government in the exercise of the prosecutorial authority vested in the State” (People v Iannone, 45 NY2d 589, 594; NY Const, art 1, § 6).

The obligation under CPL 190.50 (5) (a) to provide notice and, therefore, the concomitant right to give testimony even perhaps after an indictment has been voted but before it is filed (see, e.g., People v Young, 138 AD2d 764; People v Skrine, 125 AD2d 507), is an added window given to defendants. However, the District Attorney acquires no correlative right to control or restrict the timing of the exercise of the right. This is especially important because defendant’s appearance before a Grand Jury is the singular incursion on the prosecutor’s otherwise exclusive stronghold.

The failure of the Department of Correction to produce defendants provides no excuse or good cause for the District Attorney’s failure to give effect to a properly invoked right under CPL 190.50 (5). Nor should we give legal effect to the practical difficulties the prosecution may encounter in satisfying its obligations under CPL 180.80.

In sum, we agree with the Appellate Division that the opportunity to testify prior to any Grand Jury vote is "qualitatively different” from and more advantageous than the opportunity to testify at a reopened presentment after the Grand Jury had committed itself to a vote based on the prosecution’s ex parte presentment of evidence (People v Oquendo, 172 AD2d 566, 567, supra). While the grand jurors may be capable of setting aside action taken after a formal vote and considering new evidence from a defendant, the right conferred by CPL 190.50 (5) would not have real meaning if tendered only after such formal Grand Jury action. Such a practice in the circumstances presented by these cases would eviscerate the intent of the statute and negate its efficacy (People v Jones, 126 Misc 2d 104, 107). For example, relegating defendants to an appearance before a reopened Grand Jury that has already voted to indict them seems as dubious as listening to appellate counsel arguing only after an appeal has already been decided on the representation that the decision might be reexamined. By providing timely notice reasonably prior to Grand Jury presentment and vote, defendants establish their statutory right to testify before a vote is taken, assuming, of course, that any failure to afford these individuals a prevote appearance is not attributable to defendants themselves.

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

Chief Judge Wachtler and Judges Kaye, Titone, Hancock, Jr., and Yesawich, Jr., concur; Judge Simons taking no part.

In each case: Order affirmed.

       Designated pursuant to NY Constitution, article VI, § 2.