author: Chief Judge Wachtler.

text:
    Sinram-Marnis Oil Company, Inc., Appellant, v City of New York, Respondent.
    Argued June 6, 1989;
    decided July 6, 1989

      POINTS OF COUNSEL

      Terry Myers, Herbert Rubin, David B. Hamm and Miriam Skolnik for appellant.
    I. Where, as here, a publicly bid contract permits the revocation of a bid without specifying how such a revocation is to be accomplished, the common law can be applied to determine whether the letter written by plaintiff constitutes a revocation of its initial bid. This is particularly true since the applicable law is fully consistent with the provisions of the contract and the public bidding laws. (Petterson v Pattberg, 248 NY 86; Molloy v City of New Rochelle, 198 NY 402; Matter of Carroll-Ratner Corp. v City Manager of New Rochelle, 54 Misc 2d 625, 36 AD2d 795; Rochester Park v City of Rochester, 38 Misc 2d 714, 19 AD2d 776; Shore Bridge Corp. v City of Hornell, 263 App Div 925, 290 NY 608; Matter of Cromwell Towers Redevelopment Co. v City of Yonkers, 41 NY2d 1; Town of Tonawanda v Stapell, Mumm & Beals Corp., 240 App Div 472, 265 NY 630; City of New York v Long Is. Airports Limousine Serv., 62 NY2d 846; City of Syracuse v Sarkisian Bros., 87 AD2d 984, 57 NY2d 618; Balaban-Gordon Co. v Brighton Sewer Dist. No. 2, 41 AD2d 246.) II. Having accepted plaintiff’s July 1, 1983 offer to sell fuel oil to the city only on condition that the city absorb the gross receipts tax, the city is liable for the payment of that tax. (Matter of Fischbach & Moore v New York City Tr. Auth., 79 AD2d 14; Matter of Conduit & Found. Corp. v Metropolitan Transp. Auth., 66 NY2d 144; Le Cesse Bros. Contr. v Town Bd., 62 AD2d 28, 46 NY2d 960; Maross Constr. v Central N. Y. Regional Transp. Auth., 107 AD2d 1010, 66 NY2d 341; Matter of C. K. Rehner, Inc. [City of New York], 106 AD2d 268.) III. The court below erred in granting summary judgment to the city since, assuming, arguendo, that the July 1,1983 letter was not a revocation of plaintiff’s original offer, there are many questions of fact remaining which must be resolved by a jury. (1014 Fifth Ave. Realty Corp. v Manhattan Realty Co., 67 NY2d 718; Martin Delicatessen v Schumacher, 52 NY2d 105; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285; Four Seasons Hotels v Vinnik, 127 AD2d 310.)

      Peter L. Zimroth, Corporation Counsel (Elizabeth Dvorkin and Ellen B. Fishman of counsel), for respondent.
    The competitive bidding laws preclude a bidder from unilaterally modifying a bid after it has been opened. Therefore, the contract between the city and Sinram did not include Sinram’s attempted modif cation of its bid. (Manhattan & Queens Fuel Corp. v Village of Rockville Centre, 72 NY2d 824; Burnside Coal & Oil Co. v City of New York, 135 AD2d 413, 71 NY2d 890; Matter of Tufaro Tr. Co. v Board of Educ., 79 AD2d 376; Matter of La Mountain [Westport Cent. School Dist. — Ross], 51 NY2d 318; A. R. Fuels v City of New York, 72 AD2d 517, 49 NY2d 749; City of Syracuse v Sarkisian Bros., 87 AD2d 984, 57 NY2d 618; Balaban-Gordon Co. v Brighton Sewer Dist. No. 2, 41 AD2d 246; Matter of Fischbach & Moore v New York City Tr. Auth., 79 AD2d 14, 53 NY2d 604; Le Cesse Bros. Contr. v Town Bd., 62 AD2d 28, 46 NY2d 960; Matter of C. K. Rehner, Inc. [City of New York] 106 AD2d 268.)
   OPINION OF THE COURT

Chief Judge Wachtler.

In this dispute between a fuel oil supplier and the City of New York concerning a public contract, the supplier seeks to establish that it is entitled to charge the city for gross receipt taxes imposed on the sales, though the tax was not included in its original bid price. We conclude that, in this competitive bidding context, plaintiff was precluded from modifying its bid to include the right to charge the tax as a separate line item and, not having withdrawn its original bid prior to being awarded the contract, it is bound by the terms of the original bid.

In April 1983, defendant New York City solicited bids for contracts to supply fuel oil and kerosene to the city from July 1, 1983 to June 30, 1984. The bid documents precluded bidders from withdrawing their bids before June 26, 1983, 45 days after the scheduled bid opening on May 12. After the firm offer period, if no award had been made, a bid could be withdrawn but, according to the documents, the bidder "must do so in writing; otherwise his bid remains in effect.”

In addition, the standard form of contract included in the documents permitted mutual modifications of the contract once an award was made, but they could not "materially affec[t] the substance” of the contract and could not "result in a net change in cost to the City or the Seller of the Work to be done under the Contract.” However, the documents made no provision for postsubmission bid modification. ’

The bid documents also required that, to the extent bidders subject to the New York State gross receipts tax intended to pass the tax through to the city, it was to be included in the bid amount, not billed as a separate line item. At the time plaintiff submitted its bid, it was exempt from that tax because it sold fuel primarily for residential use. Accordingly, its bid, the lowest submitted, did not reflect a charge for the gross receipts tax.

By letter dated June 21, the city indicated its intent to award the contract to plaintiff. Under the procedures set forth in the bid documents, this letter of intent did not constitute an award, which could be made only by the mailing of either a purchase order or a notice of award. Thus, between June 26, when the 45-day firm offer period expired, and July 6, when the city issued a formal notice of award, plaintiff was free to withdraw its bid.

During this period, on July 1, plaintiff delivered to the city a letter written by plaintiff’s general counsel. The effect, if any, of this letter on the parties’ contract is the focus of this appeal.

The letter was prompted by a change in the Tax Law making the gross receipts tax applicable to sales of fuel oil by plaintiff (see, Tax Law § 300 et seq., added L 1983, ch 400, § 8, eff July 1, 1983). The letter refers to the June 21 letter of intent and the impending contract between the parties, describes the new legislation, and continues as follows: "This law was not in effect, and was not even proposed, at the time we submitted our bid for this contract. Accordingly, this new tax has not been included in our bid price under this contract. In view of the dramatic impact this 314% gross receipts tax will have on our business, we must advise you of our intention to charge this tax to the City of New York, as a separate line item on our invoices, in connection with purchases made pursuant to this contract.”

The notice of award issued by the city five days later referred only to plaintiff’s bid price; it made no reference to the letter from plaintiff’s counsel or to the gross receipts tax. On July 8, however, the city acknowledged the letter from plaintiff’s counsel and advised plaintiff that the letter had been referred to the Corporation Counsel for a formal opinion. Apparently, no such opinion was ever issued.

Plaintiff made deliveries of fuel under the contract in July, August and September and added the 314% gross receipts tax to the invoices as a separate line item. The city refused to pay the additional amount. Plaintiff suspended deliveries and eventually brought this action to recover the amount of the gross receipts tax from the city. The city counterclaimed to recover the difference between the bid price and the price the city had to pay other suppliers to meet its demands after plaintiff suspended deliveries.

Plaintiff contends that the July 1st letter from its counsel effectively changed the terms of its original offer to include the right to bill the city for the gross receipts tax. Citing common-law principles governing contract formation, plaintiff argues that this letter revoked the original offer and substituted in its place a new offer with the added term. This new offer, according to plaintiff, was the one accepted by the city because it was the only one outstanding at the time the city issued the notice of award.

We conclude that the letter did not have such an effect.

Plaintiff’s argument ignores fundamental distinctions between traditional negotiated contracts and public contracts formed through the competitive bidding process. The principles cited by plaintiff are based on the notion that negotiation of contract terms can continue between the parties up to the moment that an offer is accepted. Such one-on-one bargaining, however, is antithetical to the statutorily mandated competitive bidding process.

The statutes requiring competitive bidding in the letting of public contracts (see, e.g., General Municipal Law, art 5-A, § 100 et seq.) "evince a strong public policy of fostering honest competition in order to obtain the best work or supplies at the lowest possible price. In addition, the obvious purpose of such statutes is to guard against favoritism, improvidence, extravagance, fraud and corruption.” (Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187, 192-193.) To achieve these ends, the heart of this process must be public competition, not private negotiation. Competitive bidding, by its nature, does not contemplate the continuous bargaining that is the hallmark of negotiated contracts. Instead, a bidder is expected to submit its best offer and either stand by it or, after the firm offer period has expired, withdraw the bid and withdraw itself from competition.

Under these principles, it has been held that a municipality may not allow an individual bidder to modify its bid in a way that would "affect the competitive character of the bidding and give [the bidder] a substantial advantage or benefit not enjoyed by the other bidders” (Le Cesse Bros. Contr. v Town Bd., 62 AD2d 28, 32 [Simons, J.], affd on opn below 46 NY2d 960). The postbid modification that plaintiff seeks to establish here, oné that would increase the price to the city by allowing plaintiff to pass through an unforeseen cost of millions of dollars, falls squarely within this prohibition.

Thus, in the competitive bidding context in which it arose, the letter from plaintiff’s counsel cannot be viewed as a new offer that extinguished and replaced plaintiff’s original bid. No such option was open to plaintiff. Nor does the letter indicate that plaintiff wanted to withdraw its bid from consideration. On the contrary, the premise of the letter is that plaintiff would receive the award. At best, the letter was an attempt by plaintiff to construe the proposed contract as allowing it to bill the city for the gross receipts tax despite language to the contrary in the bid documents. Other fuel suppliers similarly caught off guard by the change in the Tax Law took the same position, which has since been rejected by the courts (see, Manhattan & Queens Fuel Corp. v Village of Rockville Centre, 72 NY2d 824; Burnside Coal & Oil Co. v City of New York, 135 AD2d 413, lv dismissed 71 NY2d 890).

We conclude, therefore, that plaintiff neither withdrew nor modified its bid prior to the notice of award and was not entitled to bill the city for the gross receipts tax. Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, etc.


source: Caselaw Access Project

author: Hancock, Jr., J. Bellacosa, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Steven D. Roe, a Juvenile Offender, Appellant.
    Argued March 28, 1989;
    decided June 6, 1989

      POINTS OF COUNSEL

      Joel Martin Aurnou for appellant.
    I. The evidence was insufficient as a matter of law to support the verdict. (People v Poplis, 30 NY2d 85; People v Gomez, 65 NY2d 9; People v Register, 60 NY2d 270; People v Fenner, 61 NY2d 971; People v Arzon, 92 Misc 2d 739; People v Jernatowski, 238 NY 188; People v Kibbe, 35 NY2d 407; People v Magliato, 110 AD2d 266; People v Stanfield, 36 NY2d 467; People v Montanez, 41 NY2d 53.) II. Trial errors denied defendant a fair trial. (People v Pabon, 96 AD2d 870; People v Shapiro, 50 NY2d 747; Gregory v United States, 369 F2d 85; People v Alling, 118 AD2d 960, 69 NY2d 637.) III. Impeachment use of defendant’s suppressed statement was error. (People v Harris, 25 NY2d 175, 401 US 222; People v Ward, 95 AD2d 351; Matter of Michelet P., 70 AD2d 68.) IV. The sentence was excessive.

      Carl A. Vergari, District Attorney (Bruce Edward Kelly and Maryanne Luciano of counsel), for respondent.
    I. Defendant’s guilt for the depraved mind murder of Darrin Seifert was proven by legally sufficient evidence, comprised of both direct and circumstantial proof, beyond all doubt. (People v Contes, 60 NY2d 620; People v Gomez, 65 NY2d 9; People v Register, 60 NY2d 270; People v Leonardo, 89 AD2d 214, 60 NY2d 683; People v McManus, 108 AD2d 474, 67 NY2d 541; People v Davis, 72 NY2d 32; People v Poplis, 30 NY2d 85; People v

      Graham, 41 AD2d 226; People v Le Grand, 61 AD2d 815, 44 NY2d 737, 439 US 835.) II. Appellant’s presentment of two purported errors occurring in the trial court are not properly before this court. (People v Brown, 24 NY2d 168; People v D’Abate, 37 NY2d 922; People v Lombardi, 76 AD2d 891; People v Rodriguez, 107 AD2d 827; People v Lane, 56 NY2d 1; People v Lowe, 91 AD2d 1100; People v De Vyver, 89 AD2d 745; People v Moreno, 70 NY2d 403; People v Molineux, 168 NY 264; People v Henson, 33 NY2d 63; People v Sims, 110 AD2d 214; People v Band, 125 AD2d 683; People v Boose, 25 AD2d 606.) III. Appellant’s failure at the pretrial hearing to lodge any form of protest to the use of the suppressed statements at trial for impeachment purposes renders the instant claim unpreserved as a matter of law. (People v Martin, 50 NY2d 1029; People v Dancey, 57 NY2d 1033; People v West, 56 NY2d 662; People v Maerling, 64 NY2d 134; Mincey v Arizona, 437 US 385; Oregon v Hass, 420 US 714; People v Leonti, 18 NY2d 384.) IV. Appellant’s claim of excessive sentence is improperly before this court, requiring perfunctory rejection. (People v Jones, 39 NY2d 694; People v Broadie, 37 NY2d 100, 423 US 950.)
   OPINION OF THE COURT

Hancock, Jr., J.

In defendant’s appeal from his conviction for depraved indifference murder (Penal Law § 125.25 [2]) for the shooting death of a 13-year-old boy, the sole question we address is the legal sufficiency of the evidence. Defendant, a 15 Vi-year-old high school student, deliberately loaded a mix of "live” and "dummy” shells at random into the magazine of a 12-gauge shotgun. He pumped a shell into the firing chamber not knowing whether it was a "dummy” or a "live” round. He raised the gun to his shoulder and pointed it directly at the victim, Darrin Seifert, who was standing approximately 10 feet away. As he did so, he exclaimed "Let’s play Polish roulette” and asked "Who is first?”. When he pulled the trigger, the gun discharged sending a "live” round into Darrin’s chest. Darrin died as a result of the massive injuries.

Defendant was convicted after a bench trial and the Appellate Division unanimously affirmed, holding that the evidence was legally sufficient to establish defendant’s guilt. That court concluded, moreover, upon an exercise of its independent factual review power (CPL 470.15 [5]), that the verdict was not against the weight of the evidence. In defendant’s appeal, by permission of a Judge of this court (CPL 460.20 [2] [a] [i]), we address only the central legal issue presented: sufficiency of the proof — i.e., "whether 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ (Jackson v Virginia, 443 US 307, 319 [emphasis in original])” (People v Contes, 60 NY2d 620, 621). On our review of the record, we conclude, as did the Appellate Division, that the proof is legally sufficient. Accordingly, there should be an affirmance.

Preliminarily, it must be made clear that defendant does not challenge either the validity of Penal Law § 30.00 (2), or the soundness of the policy underlying the legislative judgment in making persons 13, 14, or 15 years of age criminally responsible as adults for murder in the second degree under Penal Law § 125.25 (1) and (2). Nor does he raise any question concerning the wisdom of the entirely distinct statutory scheme in classifying intentional murder, depraved indifference murder, and felony murder as the same crime — murder in the second degree (see, Penal Law § 125.25). Nevertheless, the dissenter expresses evident dissatisfaction with these legislative measures which, as interpreted, permit the "enormous penological regression” of charging, convicting and sentencing a 15 1/2-year-old defendant, as an adult, for murder in the second degree (dissenting opn, at 29; see also, id,., at 35-38). But whether the Legislature should have classified depraved indifference murder as murder in the second degree and whether it is proper that a person under the age of 16 be held accountable as an adult for this specific crime are questions which do not pertain to the legal issue actually presented to us: is the evidence in this record sufficient to support the verdict under the legislative enactments applicable to the crime in question?

Before analyzing the evidence and its legal sufficiency, a brief examination of the crime of depraved indifference murder and its elements is instructive. Depraved indifference murder, like reckless manslaughter (Penal Law § 125.15 [1]) is a nonintentional homicide. It differs from manslaughter, however, in that it must be shown that the actor’s reckless conduct is imminently dangerous and presents a grave risk of death; in manslaughter, the conduct need only present the lesser "substantial risk” of death (see, People v Register, 60 NY2d 270, 276; see also, People v Gomez, 65 NY2d 9, 11). Whether the lesser risk sufficient for manslaughter is elevated into the very substantial risk present in murder (see, LaFave & Scott, Criminal Law § 70, at 542) depends upon the wantonness of defendant’s acts — i.e., whether they were committed "[u]nder circumstances evincing a depraved indifference to human life” (Penal Law § 125.25 [2]). This is not a mens rea element which focuses "upon the subjective intent of the defendant, as it is with intentional murder (Penal Law, § 125.25, subd 1)”; rather it involves "an objective assessment of the degree of risk presented by defendant’s reckless conduct” (People v Register, supra, at 277; see, People v Gomez, supra, at 11).

The only culpable mental state required for murder under subdivision (2) of Penal Law § 125.25 (depraved indifference murder), we have made clear, is recklessness — the same mental state required for manslaughter, second degree, under subdivision (1) of Penal Law § 125.15 (see, People v Gomez, supra, at 11; People v Register, supra, at 278). In a trial for murder under Penal Law § 125.25 (2), proof of defendant’s subjective mental state is, of course, relevant to the element of recklessness, the basic element required for both manslaughter in the second degree and depraved indifference murder (see, Penal Law § 15.05 [3]). Evidence of the actor’s subjective mental state, however, is not pertinent to a determination of the additional element required for depraved indifference murder: whether the objective circumstances bearing on the nature of a defendant’s reckless conduct are such that the conduct creates a very substantial risk of death (see, People v Register, supra, at 276-277; People v Gomez, 65 NY2d 9, 11, supra).

Generally, the assessment of the objective circumstances evincing the actor’s "depraved indifference to human life”— i.e., those which elevate the risk to the gravity required for a murder conviction — is a qualitative judgment to be made by the trier of the facts (see, People v Register, supra, at 274-275; see also, People v Gomez, supra, at 12). If there is evidence which supports the jury’s determination, it is this court’s obligation to uphold the verdict (see, People v Contes, 60 NY2d 620, 621, supra). Examples of conduct which have been held sufficient to justify a jury’s finding of depraved indifference include: driving an automobile on a city sidewalk at excessive speeds and striking a pedestrian without applying the brakes (see, People v Gomez, supra, at 12); firing several bullets into a house (see, People v Jernatowski, 238 NY 188; see also, People v Register, supra); continually beating an infant over a five-day period (see, People v Poplis, 30 NY2d 85); and playing "Russian roulette” with one "live” shell in a six-cylinder gun (see, Commonwealth v Malone, 354 Pa 180, 47 A2d 445; 2 LaFave & Scott, Substantive Criminal Law § 7.4, at 202; see also, People v Jefferson, 748 P2d 1223, 1227 [Colo]; State v Boone, 294 Ore 630, 661 P2d 917, 920; Neitzel v State, 655 P2d 325 [Alaska]).

With this background, we turn to the issue before us, now more fully stated: whether, viewing the evidence in the light most favorable to the People, any rational trier of the fact could have concluded that the objective circumstances surrounding defendant’s reckless conduct so elevated the gravity of the risk created as to evince the depraved indifference to human life necessary to sustain the murder conviction (see, People v Contes, supra). A brief summary of the evidence is necessary.

On the afternoon of August 14, 1984, the day of the shooting, defendant was at his home in the Village of Buchanan, Westchester County. There is uncontraverted proof that defendant, who had completed his first year in high school, had an intense interest in and detailed knowledge of weapons, including firearms of various kinds. He was familiar with his father’s 12-gauge shotgun and, indeed, had cleaned it approximately 50 times. The cleaning process involved oiling the firing pin and pulling the trigger, using a "dummy” shell to avoid "dry firing” the weapon.

At approximately 3:00 p.m., Darrin and his friend, Dennis Bleakley, also a 13 year old, stopped by to await the arrival of Darrin’s older brother who was expected shortly. Defendant entertained the two boys by showing them his sawed-off shotgun, gravity knife, and Chuka sticks which he kept in a bag under his bed; he demonstrated how he assembled and disassembled the sawed-off shotgun.

Defendant then escorted Darrin and Dennis to his parents’ room where he took out his father’s 12-gauge shotgun. He asked Darrin to go back to his bedroom to get the five shotgun shells which were on the shelf. Defendant knew that three of these shells were "live” and two were "dummies”. He randomly loaded four of the five shells into the magazine and pumped the shotgun, thereby placing one shell in the firing chamber. Because he loaded the magazine without any regard to the order in which the shells were inserted, he did not know if he had chambered a "live” or "dummy” round.

It was at this point, according to Dennis’s testimony, that defendant raised the shotgun, pointed it directly at Darrin, and said "Let’s play Polish roulette. Who is first?” He pulled the trigger discharging a "live” round which struck the 82-pound Darrin at close range. The shot created a gaping wound in Darrin’s upper right chest, destroyed most of his shoulder, produced extensive damage to his lung, and eventually caused his death.

Defendant disputed this version of the incident. He testified that he had one foot on his parents’ bed and was resting the butt of the gun on his inner thigh with the barrel pointing up and away from the victim. While he was demonstrating how the gun worked, he claimed, his foot slipped and the shotgun became airborne momentarily. Defendant testified that when he attempted to catch the gun, the butt kicked up under his armpit and he accidentally hit the trigger and discharged the gun.

The evidence of the objective circumstances surrounding defendant’s point-blank discharge of the shotgun is, in our view, sufficient to support a finding of the very serious risk of death required for depraved indifference murder. Because the escalating factor — depraved indifference to human life — is based on an objective assessment of the circumstances surrounding the act of shooting and not the mens rea of the actor (see, People v Register, supra, at 276-277), the evidence stressed by the dissent concerning defendant’s mens rea — his emotional condition in the aftermath of the killing (see, dissenting opn, at 32, 33-34) — is beside the point. Also without relevance are the dissent’s references to defendant’s claimed ignorance concerning the order in which cartridges, once loaded in the magazine, would enter the firing chamber (see, dissenting opn, at 32, 33). Such lack of knowledge can make no difference when, as is concededly the case here, the shooter knowingly loaded the mix of "live” and "dummy” cartridges with no regard to the order of their insertion into the magazine.

The comparable case here is not that of a person, uneducated in use of weapons, who, while playing with a gun that he does not know is loaded, accidentally discharges it; rather, the apt analogy is a macabre game of chance where the victim’s fate — life or death — may be decreed by the flip of a coin or a roll of a die. It is no different where the odds are even that the shell pumped into the firing chamber of a 12-gauge shotgun is a "live” round, the gun is aimed at the victim standing close by, and the trigger is pulled (see, 2 LaFave & Scott, Substantive Criminal Law § 7.4, at 202 ["Russian roulette” with one "live” shell in a six-chamber gun is a classic example of depraved indifference murder]).

The sheer enormity of the act — putting another’s life at such grave peril in this fashion — is not diminished because the sponsor of the game is a youth of 15. As in Register, where bullets which might kill or seriously injure someone, or hit no one at all, were fired at random into a crowded bar, the imminent risk of death was present here. That in one case the gamble is that a bullet might not hit anyone and in the other that the gun might not fire is of no moment. In each case, the fact finder could properly conclude that the conduct was so wanton as to amount to depraved indifference to human life.

It is conceivable that another trier of fact hearing this evidence could have been persuaded to arrive at a different verdict. From the dissenter’s extensive discussion of the proof and the inferences he would draw therefrom, it is evident that he would have done. so. Our proper function on appeal, however, is vastly different from that of the prosecutor in determining which crimes to charge, that of the Judge or jury in hearing the evidence and making factual conclusions, or that of the Appellate Division in reviewing the facts and exercising, where it chooses, its interest of justice jurisdiction. We do not find facts or exercise such discretion. Our sole authority is to review legal questions such as the one considered here: whether the evidence was legally insufficient. As to this question, we have little difficulty in concluding that the unanimous Appellate Division correctly held that the evidence was sufficient to support the verdict.

Finally, we must comment briefly on the dissent’s observation, not raised by defendant, that juveniles, charged as adults under Penal Law § 30.00, are denied the same rights afforded adults (see, dissenting opn, at 38). This is just not so. A juvenile is entitled to the same lesser included offense charges as an adult (see, CPL 300.50 [5]). If he is convicted of only a lesser offense for which he is not criminally responsible by reason of infancy (see, Penal Law § 30.00), that conviction is vacated and replaced by a juvenile delinquency fact determination and the matter removed to Family Court (see, CPL 310.85 [3]; art 725). Thus, the statutory scheme does not create a "boomerang” which "catches [defendant] in a remarkable dual exception” (dissenting opn, at 37); and a 15 year old is not "in the practical play out, more disadvantaged than an accused adult” (id., at 38).

Defendant’s remaining contentions are either unpreserved or without merit. We note, however, that defendant’s convictions of the crimes charged in counts 2 through 6 of the indictment are not before us. Accordingly, the order of the Appellate Division should be affirmed.

Bellacosa, J.

(dissenting). I vote to reverse this conviction of a 15-year-old person for the highest degree of criminal homicidal responsibility — depraved indifference murder. The evidence adduced, the statutory scheme under which defendant was charged, and the legislative intent behind it do not support the disproportionate level of maximum blameworthiness imposed here. Moreover, this result finalizes the obliteration of the classical demarcation between murder and manslaughter in this State, not only for juvenile offenders but also for all adult accuseds. As former Chief Judge Breitel so trenchantly observed with respect to an analogous statutory scheme and concept: "[T]he appropriate use of affirmative defenses enlarges the ameliorative aspects of a statutory scheme for the punishment of crime, rather than the other way around — a shift from primitive mechanical classifications based on the bare antisocial act and its consequences, rather than on the nature of the offender and the conditions which produce some degree of excuse for his conduct, the mark of an advanced criminology” (see, People v Patterson, 39 NY2d 288, 306-307 [Breitel, Ch. J., concurring (emphasis added)], affd 432 US 197).

From common-law times to modern penal code days, the tragic incident at the heart of this case has qualified as the paradigmatic manslaughter with recklessness as the culpable mental state or mens rea. Indeed, until recently, persons under 16 years of age in this State were legal infants incapable of being convicted of any crime as an adult, no less of the prime, most heinous crime punishable under our law — murder. This case represents an enormous penological regression by combining the juvenile offender exception with the depraved indifference homicide exception and giving birth to this routinized homogeneous murder category.

One of the three definitions of murder in this State is recklessly engaging in conduct which creates a grave risk of death and causing the death of another under circumstances evincing a depraved indifference to human life (Penal Law § 125.25 [2]). That is the one at issue in this case. Manslaughter, second degree, is defined as recklessly causing the death of another person (Penal Law § 125.15 [1]). This court has held that both of those crimes (the first an "A-I” felony carrying a mandatory sentence of at least 15 years to life [Penal Law § 70.00], and the lesser being a "C” felony qualifying for 4 Vz to 15 years [Penal Law § 70.02]) require the same culpable mental state (People v Register, 60 NY2d 270, cert denied 466 US 953), i.e., acting recklessly when aware of and consciously disregarding a substantial and unjustifiable risk (Penal Law § 15.05 [3]). But that culpable mental state, taken alone, supports and defines only manslaughter unless elevated to murder by reckless conduct, which additionally creates a grave risk under circumstances evincing a depraved indifference to human life. The catapulting ingredients are gravity and depravity. Other synonyms used to try to understand the essence of the escalating difference include malignant, malicious, callous, cruel, wanton, unremorseful, reprehensible and the like. The semantics alone prove that the analysis necessarily includes some subjective, gradational assessment.

While the tangible content of "depraved indifference to human life” is thus elusive, the wantonness of the conduct augmenting the reckless culpable mental state must also manifest a level of callousness and extreme cruelty as to be "equal in blameworthiness to intentional murder” (People v Register, 60 NY2d 270, 275, cert denied 466 US 953, supra). I allude to some of the same case illustrations in this regard as the majority does, except I emphasize the particular escalating depravity facts that the majority avoids: firing a gun three times in a packed barroom, having boasted in advance an intention to kill someone (id.); driving a car at high speed on a crowded urban street and failing to apply the brakes after striking one person (People v Gomez, 65 NY2d 9); continuously beating a young child over a five-day period (People v Poplis, 30 NY2d 85).

The depraved indifference category of murder reflects the Legislature’s policy refinement that there is a type of reckless homicide that is so horrendous as to qualify, in a legal fiction way, for blameworthiness in the same degree as the taking of another’s life intentionally, purposefully and knowingly (see, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 125, at 491; 2 LaFave & Scott, Substantive Criminal Law § 7.4). It is treated equally with the common-law antecedent of premeditated murder with malice aforethought. Early cases reveal that the concept of "depraved mind” murder as an escalating factor emerged from this common-law notion and was applied in cases where, despite evidence that a defendant had no desire to kill, the conduct nonetheless demonstrated a substitutive aggravating "malice in the sense of a wicked disposition” (see, Gegan, A Case of Depraved Mind Murder, 49 St John’s L Rev 417, 423-427). Modern statutes have borrowed and recast the concept "of a wicked disposition” to speak in terms of "extreme indifference to the value of human life”. The predecessor of New York’s present statute used an "act imminently dangerous to others” and was interpreted to apply, consistent with its exception-ability, only in cases where defendant’s conduct created a danger to a multitude of persons rather than to just one individual (see, 2 Rev Stat of NY, part IV, ch I, tit I, § 5 [1829] [emphasis added]; Darry v People, 10 NY 120 [1854]). The language of the statute was expanded in 1967 to apply to persons who engage in "conduct which creates a grave risk of death to another person” and has been construed to apply to an attack directed at a single person (see, Penal Law § 125.25 [2]; People v Poplis, 30 NY2d 85, supra).

The latest significant case, involving far more egregious conduct than is present in the instant case and held to constitute depraved indifference murder, evoked a warning, albeit in dissent, of the "evisceration” of the "distinction” between manslaughter and murder (People v Register, 60 NY2d 270, 284 [Jasen, J., dissenting], supra). In my view, today’s application completes the homogenization.

In this case, a 15-year-old person stands convicted of the tragic and senseless killing of the 13-year-old brother of his best friend. The shooting occurred around three o’clock in defendant’s home on a summer afternoon. Thirteen-year-old Darrin Seifert and another youngster, Dennis Bleakley, went to defendant’s home where they were invited to defendant’s upstairs bedroom. They examined defendant’s weapons collection, which included a sawed-off shotgun. After the weapons were returned to their storage places, defendant and his two companions walked down the hallway to defendant’s parents’ room where defendant removed a 12-gauge shotgun from a gun case. Defendant asked Darrin to retrieve some shotgun shells located on a shelf in defendant’s room. Darrin and Dennis went to defendant’s room and took five shells. Three were live ammunition and two were "dummies”. Returning to the master bedroom, Darrin handed the shells to defendant, who proceeded to load the shotgun with four shells. Testimony established that defendant knew two of the shells he loaded into the gun were "live” and two were "dummies”. There was also conflicting testimony as to whether the defendant understood that the gun worked in such a manner that the first shell inserted into the gun would be the last fired from the gun or vice versa. The two police investigators testified that, shortly after the incident, defendant indicated he thought he had chambered a "dummy” shell and appeared stunned when he learned the gun operated on a "first in — last out” order of fire. Defendant contradicted this testimony when he testified he had not paid attention to the order in which he loaded the shells into the gun. Both theories, in any event, suggest only recklessness, not depravity.

Moreover, after loading the gun and while standing 10 feet away from the other two boys, defendant exclaimed, "Let’s play Polish roulette. Who’s first?” Defendant raised the shotgun, pointed it at his two companions and pulled the trigger. The gun fired a live shell which hit Darrin’s right chest and shoulder area, knocking him to the floor. Defendant dropped the shotgun and ran over to Darrin, screaming, "Don’t die. I killed my best friend’s brother.” He quickly directed Dennis to go downstairs to call an ambulance, which was done. A neighbor, hearing the shot, entered the house and ran upstairs. She observed defendant straddled over Darrin’s body and heard him say, "Is he alright? Is he alright? Tell me.” When the police arrived shortly thereafter, they observed the defendant pounding his fists against the wall, crying, "I can’t believe I shot him. I can’t believe I shot my best friend. Help, please, oh my God, help.” The ambulance arrived and Darrin was taken to the hospital where he was pronounced dead on arrival.

The District Attorney presented the evidence to a Grand Jury and sought a depraved indifference murder charge against this defendant as a juvenile offender. The Grand Jury complied and a bench trial ensued after which the Trial Judge, as trier of fact, convicted on that top count. The question is whether defendant’s conduct "was of such gravity that it placed the crime upon the same level as the taking of life by premeditated design * * * [and whether] defendant’s conduct, though reckless, was equal in blameworthiness to intentional murder” (People v Register, 60 NY2d 270, 274-275, cert denied 466 US 953, supra).

I disagree that defendant’s conduct qualifies for this lofty homicidal standard. He acted recklessly, of that there can be no doubt. He could also have been punished proportionately as an adult criminal, of that, too, there should not be any doubt. But the accusation and the conviction at the highest homicidal level, predicated on callous depravity and complete indifference to human life, are not supportable against this 15 year old on a sufficiency review and are starkly contradicted by the whole of the evidence adduced.

This "crime is classified as murder and the murder penalty should be imposed 'only when the degree of risk approaches certainty; that is, at the point where reckless homicide becomes knowing homicide’ ” (People v Lilly, 71 AD2d 393, 398 [Simons, J., dissenting], quoting Gegan, A Case of Depraved Mind Murder, 49 St John’s L Rev 417, 447 [emphasis added]). Here, defendant’s actions cannot be said to have created an almost certain risk of death. The mathematical probabilities, the objective state of mind evidence at and around the critical moment, the ambiguity in the evidence as to the operational order in the firing of the weapon, and all the circumstances surrounding this tragic incident all render the risk uncertain and counterindicate depravity, callousness and indifference of the level fictionally equalling premeditated, intentional murder. That central and essential element of the crime charged was not proved beyond a reasonable doubt and that has been for a very long time a classically reviewable issue in this court (People v Ledwon, 153 NY 10).

I, of course, accept the truism, repeatedly cited by the majority as a justification for its conclusion, that the evidence must be viewed in the light most favorable to the People. But I do not worship that generality nor do I believe that it displaces equally pertinent principles and analysis; nor has it overruled other cogent and relevant precedents like Ledwon (supra). Besides, if this 15 year old is to live the rest of his life with the scarlet condemnation of "depraved murderer”, he is entitled to have the entire relevant evidentiary res gestae examined within the framework of this court’s traditional powers.

The testimony of the only other eyewitness, Dennis Bleakley, established that defendant was shaken and distraught immediately upon realizing that he had shot their companion. Defendant also immediately ran to his victim and instructed Dennis to call an ambulance; the neighbor testified that when she arrived on the scene, seconds after hearing the shot, defendant was kneeling over his friend’s body and crying. Similarly, the police officer who arrived on the scene testified that defendant was extremely distraught and overcome with grief. This is not evidence beyond a reasonable doubt of that hardness of heart or that malignancy of attitude qualifying as "depraved indifference” (see, People v Ledwon, 153 NY 10, supra). Frankly, the evidence proves the opposite.

Nor should evidence of the "objective circumstances surrounding the act of the shooting” — the essential elevating element of the crime — be discarded as "beside the point” and artificially cut off as of the moment of the flash of the weapon (majority opn, at 27). This is a substantial and new evidentiary restriction and one that has been rejected by a leading authority (2 LaFave & Scott, Substantive Criminal Law § 7.4, at 204-205). Indeed, the very section of that text relied upon by the majority is antithetical to the majority’s approach and supports the view advanced in this dissent in this regard (see, majority opn, at 27, n 7): "[o]n balance, it would seem that, to convict of murder, with its drastic personal consequences, subjective realization should be required”, and evidence of a defendant’s conduct in stopping and aiding a victim, whom he had struck and fatally injured, was admissible "to 'negative the idea of wickedness of disposition and hardness of heart’ required for depraved-heart murder” (see, 2 LaFave & Scott, Substantive Criminal Law § 7.4, at 205, citing Commonwealth v McLaughlin, 293 Pa 218, 142 A 213 [1928]). Under the majority’s cramped approach, one must wonder whether res gestae conduct will be foreclosed in a prosecution attempt to prove a real depravity set of circumstances in some other depraved murder case. More to the point here and for the defense side of cases yet to come, the majority appears also to be significantly preventing the evidentiary development of ameliorating or contradicting factors with respect to depravity. Both sides and the truth-seeking process itself lose with this antiseptic evidentiary embargo.

On an inextricably related issue, the majority also summarily rejects the defendant’s objection to the prosecutor’s use of prejudicial prior conduct evidence. To establish defendant’s depravity, the People introduced evidence that defendant had previously pointed an unloaded firearm at others, that he had handled a variety of guns and demonstrated to his friends how to load and unload these guns. They even introduced defendant’s magazines concerning guns and the posters that had hung in his bedroom. Evidence of this conduct, of this penchant, of this hobby, and of these prior "bad acts” never should have been admitted because the probative value was nonexistent or so overwhelmingly prejudicial that the tenuous probativeness was substantially outweighed (People v Hudy, 73 NY2d 40, 54-56; People v Ventimiglia, 52 NY2d 350; People v Molineux, 168 NY 264). The Trial Judge nonetheless took the evidence over objection, stating that it bore on defendant’s familiarity with guns and tended to establish defendant’s depraved mind — and he was the sole fact finder. As to the first issue — defendant’s familiarity with guns — the evidence totally failed to show that defendant knew the order of fire of the weapon used that afternoon — the only relevant issue in this regard in the case. As to the second issue — establishing this 15-year-old’s depraved mind — the evidence of defendant’s prior acts as related to the charged event is not relevant to show defendant’s state of mind on the afternoon in question and was inappropriately devastating in its impact (see, United States v Afjehei, 869 F2d 670 [2d Cir]). If the truth be stated, we know that this evidence was admitted for only one purpose: the prosecutor’s determination to show that this 15 year old was obsessed with firearms rather than with other things which preoccupy such adolescents. This is precisely why admitting this highly prejudicial evidence constitutes reversible error (People v Ailing, 118 AD2d 960, 963-964 [dissenting opn], revd on dissenting opn 69 NY2d 637).

By condoning all this error and thus catapulting the defendant’s admittedly reckless criminal act to one "evincing depraved indifference to human life”, the court functionally and finally discards and disregards the legislatively drawn distinction between manslaughter and murder (see, People v Register, 60 NY2d 270, 284 [dissenting opn], supra; Gegan, A Case of Depraved Mind Murder, 49 St John’s L Rev 417, 447; see also, People v Marcy, 628 P2d 69, 78-81 [Colo]). Prosecutors will find the temptation legally and strategically irresistible, and overcharging traditional reckless manslaughter conduct as the more serious murderous conduct will become standard operating procedure in view of the authorized template given for that course of action. Some very disproportionate miscarriages of justice — this case is one of them — will certainly ensue from this prosecutorial leverage in elevating reckless manslaughter to murder. It is difficult to imagine, after this case, any intentional murder situation not being presented to the Grand Jury with a District Attorney’s request for a depraved indifference murder count as well. Thus, the exception designed as a special fictional and functional equivalent to intentional murder becomes an automatic alternative and additional top count accusation, carrying significant prejudicial baggage in its terminology alone. That devastating advantage, among others, given to the prosecution provides an unjust double opportunity for a top count murder conviction and an almost certain fallback for conviction on the lesser included crime of manslaughter.

The majority also postulates a functional per se principle for this type case that it is always — it says "generally” but provides no indication of qualifying exceptions and I can think of none — up to the trier of fact only to determine whether defendant’s actions were of such gravity as to qualify for depraved indifference murder (majority opn, at 25). This remarkable abdication of traditional demurrer and legitimate appellate review functions to unfettered prosecutorial hegemony has very grave consequences and implications for the future. If all prosecutors have to do to secure a depraved indifference murder count from their generally cooperative Grand Juries is to present the meager evidence available here against a juvenile offender, there is not much left for the defense or the trial court to do. Under CPL 210.20 (1) (b), the entire case becomes invulnerable to dismissal because the lesser manslaughter, second degree, with simple recklessness will surely lie and the court in such circumstances is absolutely forbidden from dismissing the higher count, even if not made out by the evidence. The inspect and reduce reform long sought as a fair and balanced judicial remedy for such situations generally, which would ameliorate this outrageous strategic advantage in cases like this, has year after year failed because of prosecutorial opposition (see, Assembly Bill 5110 [1989]; Assembly Bill 4459 [1987-1988]; Assembly Bill 4337 [1986]; see also, 1988 Rep of Advisory Comm on Criminal Law & Procedure, reprinted in 1988 McKinney’s Session Laws of NY, at 2369, 2430; Determinate Sentencing Report and Recommendation, NYS Comm on Sentencing Guidelines, at 97 [1985]). To this long-standing advantage, there is now added the unique fact-insulating characterization accorded to the essential aggravating element in these cases with the result that the prosecution’s discretionary authority in this respect is decreed absolute and immune from appropriate review.

As if all that were not disquieting enough, under the particular facts of this case, the conviction of this 15-year-old defendant for depraved indifference murder becomes even more unsettling because, prior to 1978, persons under the age of 16 were infants, legally presumed to be without capacity to commit any crime as an adult. Children under the age of 16, proven to have committed an act which if committed by an adult would be a crime, were up to then adjudicated juvenile delinquents in Family Court (see, Family Ct Act art 3). In 1978, the Governor and Legislature, reacting to a particularly heinous criminal act by someone who would qualify only as a juvenile delinquent, carved out some narrow high level adult prosecution exceptions to the traditional infancy defense. After that date, persons aged 13 through 15 could be criminally responsible as adults for intentional and depraved indifference murder. Additionally, under the same statute, 14 and 15 year olds could be held criminally responsible for some other enumerated felonies and for felony murder only if one of the underlying intent felonies were among those enumerated in the special statute (see, Penal Law § 30.00 [2]; McQuillan, Felony Murder and The Juvenile Offender, NYLJ, Aug. 25, 1978, at 1, col 2). Notably, every crime, save one, authorized for prosecution against these 13 to 15 year olds requires intention as the culpable mental state. That one exception is depraved indifference murder, which carries the lesser culpable mental state of recklessness.

The majority avoids these objective realities and the inextricably intertwined statute, which could not be more self-evidently relevant to this adolescent defendant, even in the title of this criminal proceeding, by attributing to me a sua sponte injection of the issue into the case. They even imply that I question the wisdom of the Legislature’s policy choice in enacting the juvenile offender law, which I surely do not. I question the injustice against this defendant in the application of that exceptional authorization for this depraved indifference case, within the framework of this court’s traditional review role (People v Gruttola, 43 NY2d 116, 122-123; People v Ledwon, 153 NY 10, supra). The notion that our review power should be so "scientific” and "mechanical” should be repulsed (see, Brennan, Reason, Passion, and "The Progress of the Law”, 42 Rec AB City NY 948, 951-952 [1987]).

The boomerang of Penal Law § 30.00 (2) on this adolescent defendant catches him in a remarkable dual exception — a kind of double bind — creating an opposite anomaly from that which precipitated the juvenile offender legislation — the escape of then-juvenile delinquent Willie Bosket from the

clutches of the adult criminal law (see, L 1978, ch 481; NY Times, July 20, 1978, at B2, col 6; NY Times, Nov. 17, 1979, at 27, col 1). Defendant Steven Roe, aged 15, standing alongside an adult-aged criminal over 16, is, in the practical play out, more disadvantaged than an accused adult by quirks of legislative drafting and of prosecutorial charging choices (see, e.g., CPL 300.50, 310.85; Penal Law § 30.00 [2]; § 125.25 [1] [a]; but see, ALI Model Penal Code §§210.2, 210.3 [1] [b]; Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 125, at 492; People v Patterson, 39 NY2d 288, 306-307 [Breitel, Ch. J., concurring], affd 432 US 197, supra). This harsh reality perverts the principle of proportionality in our criminal jurisprudence and exerts the worst kind of regressive inversion on the equal protection of our laws applied as against a 15-year-old defendant charged, tried, convicted and punished as a full adult for the highest crime possible.

Finally, to uphold this defendant’s conviction on the uppermost and most heinous level of criminal homicidal responsibility cheapens the gravity with which we treat far more serious murders, e.g., cold-blooded contract killings and the like. In the eyes of the law all the slayers are now made alike, when the perpetrators themselves know and our best instincts and intelligence tell us, too, that they are very different. Justice is disfigured by the punishment of offenders so homogeneously and, yet, so disproportionately.

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

Order affirmed.

      . Penal Law "§ 125.25 Murder in the second degree.
      "A person is guilty of murder in the second degree when:
      * ** *
      "2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person”.

      . The statute also provides that persons 14 or 15 years of age who commit certain crimes — e.g., first degree manslaughter, first degree rape, aggravated sexual abuse, and first degree kidnapping — may be tried as adults. Thus, contrary to the assertion of the dissent, the law was not tailored solely to prevent those exceptionally vicious juveniles, such as Willie Bosket, from escaping "the clutches of the adult criminal law” (dissenting opn, at 37-38). Rather, it applies to all 14 or 15 year olds who commit any one of the broad range of crimes enumerated in the statute.

      . Nor does defendant raise any issue involving the sufficiency of the evidence before the Grand Jury or the discretionary prosecutorial decision to present a Penal Law § 125.25 (2) charge to the Grand Jury and the trier of fact (cf., dissenting opn, at 35-36, 36).

      . In attempting to "emphasize the particular escalating depravity facts” in Gomez (dissenting opn, at 30), the dissent overlooks the fact that in Gomez we upheld two counts of depraved indifference murder — one for the first victim struck and one for the second (65 NY2d 9, 12). Thus, we obviously did not find it necessary that one person be struck first for the conduct to constitute depraved indifference.

      . In addition to proof that defendant had handled and used his sawed-off shotgun and his father’s shotgun, the People introduced evidence that defendant had previously used a .22-caliber rifle, an air rifle, a .22-caliber air pistol, and a BB gun. Defendant had read magazine articles and books concerning guns, given several speeches in school about weapons, and drawn pictures of various guns. This evidence was admissible to prove recklessness —i.e., that defendant was aware of the risks involved — by showing that he was familiar with weapons in general and with this gun in particular (see, People v Licitra, 47 NY2d 554, 559; People v Stanfield, 36 NY2d 467, 471-472).

      . According to defendant, "dry firing” is releasing the firing pin when there is no cartridge in the chamber and nothing for the pin to strike against. To avoid the damage to the pin which "dry firing” can cause, "dummy” cartridges are used.

      . 2 LaFave & Scott, Substantive Criminal Law § 7.4 (b), at 204-205, cited by the dissent (see, dissenting opn, at 34) is not to the contrary. Evidence of defendant’s conduct and emotional state after the shooting might be relevant to show his subjective awareness of the risk — an element essential to establish the underlying mens rea of recklessness (see, Penal Law § 15.05 [3]; 2 LaFave & Scott, op. cit., at 204-205). Here, however, there is no dispute that defendant acted recklessly (see, dissenting opn, at 33). The only question is whether the crime conduct creates the very substantial risk of death necessary for depraved indifference. Gomez and Register make it clear that this element is to be objectively assessed and that defendant’s subjective mens rea is not relevant on this point (People v Gomez, 69 NY2d 9, 11; People v Register, 60 NY2d 270, 277).


author: Hancock, Jr., J. Chief Judge Wachtler Simons, J.

text:
    Joseph A. Iannotti, Respondent, v Consolidated Rail Corporation, Appellant.
    Argued February 9, 1989;
    decided June 13, 1989

      POINTS OF COUNSEL

      G. Kimball Williams for appellant.
    I. Plaintiffs claim is barred by the recreational use statute. (Sega v State of New York, 60 NY2d 183; Ferres v City of New Rochelle, 68 NY2d 446; Merriman v Baker, 34 NY2d 330; Rock v Concrete Materials, 46 AD2d 300; Seminara v Highland Lake Bible Conference, 112 AD2d 630; Mattison v Hudson Falls Cent. School Dist., 91 AD2d 1133; Power v Union Pac. R. R. Co., 655 F2d 1380; Lovell v Chesapeake & Ohio R. R. Co., 457 F2d 1009; O’Keefe v State of New York, 104 AD2d 43.) II. Even under the common-law standard — reasonable care under the circumstances — plaintiff has failed to present sufficient evidence to support a favorable jury verdict. (Basso v Miller, 40 NY2d 233; Scurti v City of New York, 40 NY2d 433; Lynch v Aer Lingus/ Irish Intl. Airlines, 81 AD2d 508; Farkas v Cedarhurst Natural Food Shoppe, 51 AD2d 793.)

      Richard A. Insogna for respondent.
    I. The complaint in this action states facts sufficient to constitute a cause of action. (Axelrod v Krupinski, 302 NY 367; Petru v Hertz Corp., 36 AD2d 704; Silverman v Silverman, 309 NY 906.) II. The facts of the instant case do not bring it within the purview of General Obligations Law § 9-103. (Sega v State of New York, 60 NY2d 183; Cracco v Cox, 66 AD2d 447; Russo v City of New York, 116 AD2d 240; Smith v State of New York, 124 AD2d 296; Ferres v City of New Rochelle, 68 NY2d 446; Michalovic v Genesee-Monroe Racing Assn., 79 AD2d 82; Cramer v Henderson, 120 AD2d 925; Bush v Village of Saugerties, 114 AD2d 176; O’Keefe v State of New York, 104 AD2d 43.) III. There are questions of material fact which preclude the grant of summary judgment to defendant herein. (Andre v Pomeroy, 35 NY2d 361; Ugarizza v Schmieder, 46 NY2d 471; Scurti v City of New York, 40 NY2d 433.) IV. The arguments contained in defendant-appellant’s brief on this appeal are unpersuasive and inept.

      Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff and Michael S. Buskus of counsel), for the State of New York, amicus curiae.

    Landowners, encouraged to allow recreational access by the legislative quid pro quo of limited tort liability, will be reluctant to keep their premises open for recreational purposes when their entitlement to the defense of the statute pivots on a future question of fact as to the "character” of the premises. (Sega v State of New York, 60 NY2d 183; Ferres v City of New Rochelle, 68 NY2d 446.)
   OPINION OF THE COURT

Hancock, Jr., J.

Plaintiff alleges that he was injured while riding his motorized trail bike within the City of Amsterdam along a stone and dirt right-of-way 20 to 25 feet wide adjacent to defendant’s railroad tracks. The right-of-way, which had once formed the bed of a track, since abandoned, was used occasionally by railroad workmen as an access road for purposes of maintaining the existing tracks. In plaintiffs suit for damages he alleges ordinary negligence. Because there is no allegation of willful or malicious failure to warn, defendant moved for summary judgment or dismissal on the basis of the recreational use statute (General Obligations Law § 9-103) which grants immunity from liability for ordinary negligence to owners of property who permit members of the public to come on their property to engage in one of several enumerated recreational activities.

The Supreme Court denied defendant’s motion and the Appellate Division affirmed with a divided court, holding, as a matter of law, that General Obligations Law § 9-103 was inapplicable to defendant’s property. The court was unanimous that the location of defendant’s property within the city limits and near densely populated and highly developed areas rather than in an undeveloped wilderness area did not preclude its suitability for recreational use and the consequent applicability of section 9-103 (Iannotti v Consolidated Rail Corp., 137 AD2d 62, 65-66, 67).

The Appellate Division majority concluded, however, that the statute did not cover defendant’s property, because it was "maintained and used for the commercial operation of a railroad, [and was] not the type of property the Legislature intended to encourage landowners to open up for public recreational use by enacting General Obligations Law § 9-103 and its various amendments” (137 AD2d, at 67). The dissenter expressed the view that the property’s commercial use should not prohibit the statute’s application, noting that railroad "rights-of-way are used extensively by sportsmen, sometimes in wilderness areas and sometimes in more populous areas” for various recreational activities and that the property’s commercial use for railroad purposes did not "detract from the fact that [it was] also suitable for recreational use” (137 AD2d, at 68).

The legal question framed by the two writings at the Appellate Division, thus, is this: notwithstanding that a property is otherwise suitable for a particular recreational use, is the application of General Obligations Law § 9-103 barred, as a matter of law, because the property has a presently existing commercial use? For reasons stated hereafter, we agree with the dissenter that the property’s commercial use does not have that effect. There should accordingly be a reversal.

We commence our analysis with a review of the decision in Ferres v City of New Rochelle (68 NY2d 446) which, like the case before us, entailed a contention by plaintiff that section 9-103 was inapplicable because of the particular characteristics of the property involved. In Ferres, plaintiff’s suit for damages was based on the city’s negligence in maintaining the supervised public park and recreational facility where he was injured. We held that the Legislature could not have intended that the broad grant of immunity afforded by the statute be given effect to relieve a municipality from its legal responsibilities for properly maintaining a supervised recreational facility which it held open for public use.

We reasoned, from the wording of General Obligations Law § 9-103 and an analysis of its statutory scheme as well as from the relevant legislative history, that the sole purpose of the statute was "to induce property owners, who might otherwise be reluctant to do so for fear of liability, to permit persons to come on their property to pursue specified activities” (id., at 451). The extensive protection from liability conferred, we noted, is the quid pro quo which the statute offers to property owners to induce them to open their lands for recreational use. Because the claim in Ferres involved a supervised public park — a facility operated for the very purpose of furnishing a place for outdoor public recreation, thus making the statutory inducement unnecessary and the grant of immunity under the statute obviously inappropriate — we held that it "would be contrary to reason to assume that the Legislature could have intended that the statute apply in circumstances where neither the basic purpose of the statute, nor, indeed, any purpose could be served” (id., at 452). Since granting immunity for a supervised public park of the type in Ferres would neither fit the statute’s scheme nor further its underlying purpose, we held — despite the statutory language covering, without limitation, "an owner, lessee or occupant of premises” (General Obligations Law § 9-103; see, Ferres v City of New Rochelle, supra, at 451) — that the Legislature could not have intended section 9-103 to be applicable.

Before we address plaintiff’s contention that applying General Obligations Law § 9-103 to defendant’s commercial property would not be consistent with the purpose of the statute as we analyzed it in Ferres, we note our agreement with the unanimous conclusion of the Appellate Division that section 9-103 is not limited to claims arising in wilderness, remote or undeveloped areas (137 AD2d, at 64; see also, Gardner v Owasco Riv. Ry., 142 AD2d 61, 63; Seminara v Highland Lake Bible Conference, 112 AD2d 630; Mattison v Hudson Falls Cent. School Dist., 91 AD2d 1133). In view of the wide range of activities presently covered by the statute, there is no basis for giving it the narrow construction urged by plaintiff. As we noted in Ferres, when the recreational statute was originally enacted as part of the Conservation Law (former § 370, added L 1956, ch 842) it was intended to lessen " 'the anxiety of owners, lessees and occupants of premises suitable for hunting, fishing and trapping’ ” (68 NY2d, at 452-453, quoting Bill Jacket, L 1956, ch 842, at 18, Mem of NY Law Rev Commn) by limiting their liability for injuries incurred by persons engaging in these activities. From its location in the Conservation Law and the type of activities covered, we concluded that "the statute was originally envisioned as applying to undeveloped or wilderness areas of the type that would ordinarily be frequented by sportsmen engaged in the four listed activities — hunting, trapping, fishing, and training of dogs” (id., at 453 [emphasis added]).

This original restricted reach of the statute has, however, been altered (see, Ferres v City of New Rochelle, supra, at 452-453; O’Keefe v State of New York, 104 AD2d 43, 45-46). Subsequent amendments have added a variety of other activities including snowmobiling (L 1968, ch 7), off-road recreational vehicle riding (L 1971, ch 343), bicycling (L 1972, ch 106), and sledding and tobogganing (L 1984, ch 141); some of which are compatible with types of properties other than undeveloped or wilderness areas (e.g., an open hill in an urban or suburban setting, while certainly not suitable for hunting or trapping, could be an ideal place for sledding). Thus, in keeping with the legislative purpose of opening lands to the public for the listed recreational uses, the general class of properties covered has necessarily been enlarged. As pointed out by the Appellate Division, it would be irrational to adopt a "statutory construction which would deprive a landowner of the limited liability of the statute merely because his land, while otherwise suitable for one or more of the enumerated recreational activities, is not located in an area that can be characterized as wilderness, remote or undeveloped” (137 AD2d, at 64).

There is no more reason to make a categorical exception from the scope of General Obligations Law § 9-103 for properties which are in active commercial use than for properties which are not located in remote, undeveloped or wilderness areas. In reaching this conclusion we note that there is nothing in the statute indicating that commercially used property should be treated differently from other property. To the contrary, in Sega v State of New York (60 NY2d 183) we remarked on the unrestricted wording of the statute, noting that "section 9-103 refers to any 'owner, lessee, or occupant of premises’ ” (id., at 190 [emphasis in original]).

A commercial property may be well suited to public use for several of the enumerated activities (e.g., hiking, cross-country skiing, and horseback riding) and yet be in active use for its commercial purpose. The question is whether — notwithstanding its contemporaneous commercial use — the property is the sort which the Legislature would have envisioned as being opened up to the public for recreational activities as a result of the inducement offered in the statute. In other words, is it a type of property which is not only physically conducive to the particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation? If it is, application of General Obligations Law § 9-103 to such property as an inducement to the owner to make it available to the public would further the statutory purpose.

The concurrence would not adopt this test. Rather, it would apply the statute as long as the injured party is "engaged in one of the listed activities at the time of his injury” even when the property is not a suitable area for the public to pursue the particular recreational activity (see, concurring opn, at 51). It follows that under this construction, section 9-103 would apply, for example, to give an owner of a small urban backyard immunity from the claim on behalf of a neighbor’s child injured while riding a bicycle. We submit that the Legislature could not have intended this result for two reasons: (1) there could be no public interest in inducing the owners of such unsuitable properties to make them available for public recreation; and (2) that being so, offering immunity as the quid pro quo to such owners would be pointless and would not further the underlying statutory purpose (Ferres v City of New Rochelle, supra, at 451, 452). The concurrence, however, would, for the sake of creating a "bright-line test” (see, concurring opn, at 50), make the statute generally appli cable regardless of whether the property could be deemed suitable for public recreational use. This construction would result in the adoption of the markedly reduced section 9-103 "willful or malicious failure to warn” standard instead of the Basso v Miller (40 NY2d 233) "reasonable care” standard and thereby abrogate the common-law rule for property owner liability in any case where one of the several listed activities is being pursued (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 301 [statutes in derogation of common-law rule should generally receive strict construction]). Contrary to the assertions in the concurrence (concurring opn, at 50), there is nothing in the legislative history which indicates that the Legislature ever contemplated that it was effecting such a sweeping change in a fundamental rule of owner liability.

Turning to the specific property involved here, it is not disputed that the right-of-way was physically amenable to public use for a number of recreational activities. Plaintiff in his affidavit and in his examination before trial stated that he and others had used the property for more than 10 years for riding snowmobiles, motorcycles, three-wheelers, and other unregistered motor vehicles. The parties do not suggest that the occasional use of the property for railroad maintenance purposes detracted from its suitability for a public recreational purpose (see, Power v Union Pac. R. R. Co., 655 F2d 1380, 1387 [9th Cir; interpreting State of Washington recreational use statute as immunizing railroad from those injured on its track bed]; Lovell v Chesapeake & Ohio R. R. Co., 457 F2d 1009, 1010 [6th Cir; applying Michigan recreational use statute to same effect]). Analyzing the question in the light of the statutory purpose, as we did in Ferres, we conclude that applying section 9-103 to defendant’s right-of-way would be consistent with the underlying purpose of inducing property owners to make their lands accessible to the public for recreational use.

Finally, we see no merit in plaintiff’s contention that the statute should not apply because when the accident happened he was returning to his home from shopping and having a "bite to eat”. The argument is that he was using his trail bike not for recreation but for transportation and was, therefore, outside the statute. Obviously, that the bike was being used for transportation would not mean that its use was not also recreational. There is nothing in the statute or its history suggesting that the Legislature intended that its application should turn on the subjective intent of the injured person when engaging in one of the enumerated activities (see, Gardner v Owasco Riv. Ry., 142 AD2d 61, 63-64, supra).

Moreover, although section 9-103 states that it applies to "motorized vehicle operation for recreational purposes” (emphasis added), when read in context of the entire statute and in light of the underlying legislative purpose, it is evident that the phrase "for recreational purposes” is used to distinguish between on-road and off-road uses — not to reflect the particular user’s state of mind.

Accordingly, the order of the Appellate Division should be reversed, with costs, defendant’s motion for summary judgment granted and certified question answered in the affirmative.

Chief Judge Wachtler

(concurring). I agree that the protection of General Obligations Law § 9-103 is available to defendant and that, accordingly, the complaint should be dismissed. As the plurality notes, "there is nothing in the statute indicating that commercially used property should be treated differently from other property.” (Plurality opn, at 45.)

I cannot join the plurality, however, because of the suggestion, implicit in its analysis, that the statute would not apply to land the court determines to be somehow inappropriate for the listed recreational purposes. Whether the statute applies to a particular piece of property, according to the plurality, depends on whether it is "a type of property which is not only physically conducive to the particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation” (plurality opn, at 45).

Apparently, then, if a recreationist enters land to engage in one of the listed activities and it turns out that the land is not appropriate for that use, the statute will not apply and the landowner will be liable if the recreationist is injured. This, despite the language of the statute, which declares that "an owner, lessee or occupant of premises * * * owes no duty to keep the premises safe for entry or use by others for [the listed activities] or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes” (General Obligations Law § 9-103 [1] [a]).

Plainly, the statute contains no exception for properties which are inappropriate for the listed activities. By creating such an exception, the plurality sends this message to landowners: there is only a duty to keep your land safe for these activities if it is inappropriate for such use. That message is not only puzzling, but given the purpose of the immunity granted by the statute, it seems to me to be ill-advised.

We all agree that the purpose of General Obligations Law § 9-103 was "to induce property owners, who might otherwise be reluctant to do so for fear of liability, to permit persons to come on their property to pursue specified activities” (Ferres v City of New Rochelle, 68 NY2d 446, 451). Prior to the enactment of the statute, landowners were, quite understandably, reluctant to allow their property to be used by fishermen, hunters or other recreationists because they could be held accountable for money damages if the land contained some dangerous condition which caused an injury to one of the recreational users. Except for the provisions of General Obligations Law § 9-103, this fear is even more well founded today, after the demise of the tripartite distinctions governing landowner liability and the application of a single standard of reasonable care under the circumstances (see, Basso v Miller, 40 NY2d 233).

Section 9-103 was designed to allay those fears; by granting immunity to landowners from suits by recreational users of their property, it relieved them of the burden of determining whether their property is safe for the designated activities. In effect, the statute permits a landowner, if he or she so chooses, to ignore with impunity those who enter the land for such purposes. That sense of repose was the inducement offered by the Legislature to encourage open lands. The interpretation of the statute suggested by the plurality, however, would impose the new, but not far different burden of determining whether property is "physically conducive to the particular activity or sport” and "appropriate for public use in pursuing the activity”.

It is not clear what physical attributes of the property will render it inappropriate for a given use. I assume that it must be something other than a dangerous condition or else the statute will never be applicable in the very situation it was designed to address — where an injury is caused by a dangerous condition on the land.

It will certainly prove difficult, even for Judges and lawyers, to draw the line between land covered by the statute despite the presence of dangerous conditions and land which falls outside the statute because it is "inappropriate” for the particular recreational activity. That point is illustrated well enough by the disagreement between the plurality and the dissenters in the present case. It will be even more difficult for landowners to assess their properties against this uncertain standard. Unfortunately, uncertainty in the minds of landowners can only thwart the purpose of the statute because, in the face of doubt as to the status of their property, prudent landowners will surely protect themselves by refusing access to their lands.

Even if landowners are able to overcome this obstacle and determine which activities their land is appropriate for, still they cannot safely ignore the recreational users. Indeed, unless the property is appropriate for all of the listed activities (from hang gliding to spelunking), the plurality’s standard would seem to require the landowner to patrol the boundaries and allow entrance only to those who intend to pursue the particular activities for which the premises are suited. The other alternatives would be either to risk liability or, what is more likely, to close the property to all. This cannot be what the Legislature intended.

Certainly, the best evidence of the Legislature’s intent, the plain language of the statute, provides no support for the exception advocated by the plurality. If we are to assume, as we must, that the words of the statute were carefully chosen, then that broad language, from which exceptions and qualifying language are conspicuously absent, suggests that the Legislature consciously eschewed such limitations in order to provide clear guidance to landowners.

The plurality misses this point when it asserts that "there could be no public interest in inducing the owners of * * * unsuitable properties to make them available for public recreation” and that "offering immunity * * * to such owners would be pointless and would not further the underlying statutory purpose” (plurality opn, at 46). Granting immunity to owners of unsuitable properties is not "pointless,” because it is not granted to induce them to make their properties available to the public but rather to avoid uncertainty and thereby induce the owners of suitable properties to open their lands. Immunity that is contingent upon a court or jury determining that one’s property is "appropriate” will not be enough security for many landowners, or so the Legislature may have thought.

Thus, the public interest and the statutory purpose can be served by a bright-line test, especially when the test is intended to be construed by laypersons. The Legislature was free to choose that option as the best way to achieve the desired result. The broad language of the statute suggests that such a choice was made. The courts have no authority to substitute their own choice.

In my view, the balance struck by the statute is clear: landowners allow access to their lands; recreational users who take advantage of this access give up the right to sue. From this perspective, it seems to me, the burden of determining whether land is "appropriate” for or "conducive” to the activity should be placed on the recreational user. One who takes advantage of the statute by enjoying access to the lands of another for one of the enumerated activities should not be heard to complain that the land was inappropriate for the purpose.

I would simply hold, therefore, that the statute is applicable because plaintiff was engaged in one of the listed activities at the time of his injury and because there is no basis in the statute for treating commercially used property differently from other property.

The plurality’s response to my position assumes, incorrectly, that I would leave no room for consideration of factors other than the type of activity the plaintiff was engaged in at the time of the injury. My point is simply that the factor emphasized by the plurality — the suitability of the land for that particular activity — is inappropriate. The activity is, of course, a crucial factor, because the statute is very specific about the activities which give rise to protection for the landowner. But beyond that, the most important factor and the one most consistent with our precedents, is the one we found to be controlling in Ferres v City of New Rochelle (68 NY2d 446, supra). There, we held that a municipal park was not covered by the statute because the park existed for the very purpose of providing recreational opportunities for the public. Public access did not depend on the incentive offered by the statute and the trade-off envisioned by the statute was, therefore, lacking (see, id., at 454).

I would abide by that sound reasoning and, although I do not think it is wise to hypothesize about cases not before us, the principle of Ferres might be equally applicable to the reductio ad absurdum examples offered by the plurality. For example, it is at least arguable that, in the case of the neighbor’s child bicycling in a small urban backyard (plurality opn, at 46), the statutory quid pro quo is also absent, either because allowing the child in the yard is not equivalent to granting public access or because it is unlikely that access was granted in response to the incentive offered by the statute. These arguments are at least as tenable as the plurality’s approach, which would require a holding that small urban backyards are unsuitable, as a matter of law, for bicycling by neighborhood children.

I suppose that someone may decide to engage in one of the listed activities on land that is clearly inappropriate for the purpose. A bicyclist may try to negotiate a cliff-side path or a hang-gliding enthusiast may try to land in the woods. I cannot understand, however, why we should contort the recreational use statute to ensure that it does not provide immunity to the landowner in such a case, when traditional tort doctrines of foreseeability and comparative negligence would severely limit or foreclose liability anyway.

The list of activities contained in the statute and the principle recognized in Ferres (supra) provide a sound basis for limiting the reach of the statute. I am open to any other exception that is consistent with the statutory language and purpose. Where the statute applies, however, there can be no doubt that it was intended to abrogate the "fundamental rule of [property] owner liability” concerning the landowner’s duty of care (see, plurality opn, at 46). That is what the statute is all about.

Simons, J.

(dissenting). I agree with Judge Hancock’s interpretation of section 9-103 of the General Obligations Law, i.e., that it was enacted to make available to the public areas suitable for recreation by freeing property owners from liability for personal injuries sustained by users engaged in certain permitted activities, that its application depends upon the suitability of the premises for the recreational uses stated in the statute, and that suitability is a question of law for the court. I also agree with him that "suitability” does not, contrary to the holding of the Appellate Division, depend upon whether the property is commercial. A property may be "suitable” for recreational use notwithstanding its commercial nature.

Nevertheless, defendant’s property, the right-of-way of the main line of a national railroad network used by the freight and passenger trains, was singularly unsuitable for recreation because defendant’s own use of those premises created the potential for serious injury. There is nothing in the record to suggest that this right-of-way was used for recreational purposes — only as an alternate travel route for pedestrians and unregistered vehicles and as an access roadway for Conrail employees to service the operating railroad track. I know of no public interest or legislative purpose to be served by encouraging recreational activities on such property or immunizing the railroad from liability for negligently inflicted injuries resulting from the public’s presence on that property.

Accordingly, I dissent and vote to affirm the order of the Appellate Division.

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

Order reversed, etc.

      . Use of motorized trail bike is one of the recreational activities.
      General Obligations Law § 9-103 (1) (a) provides, in pertinent part, that:
      "1. Except as provided in subdivision two,
      "a. an owner, lessee or occupant of premises, whether or not posted as provided in section 11-2111 of the environmental conservation law, owes no duty to keep the premises safe for entry or use by others for hunting, fishing, organized gleaning as defined in section seventy-one-y of the agriculture and markets law, canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleological activities, horseback riding, bicycle riding, hang gliding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for non-commercial purposes or training of dogs, or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes;
      * * *
      "This section does not limit the liability which would otherwise exist
      "a. for willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity” (emphasis added).

      . The appeal is before us by permission of the Appellate Division pursuant to CPLR 5602 (b) (1). The Appellate Division certified the following question "Did this court err as a matter of law in affirming the order of the Supreme Court denying a motion by defendant to dismiss the complaint, or in the alternative, for summary judgment?”

      . The rejection of the construction limiting the statute to "wilderness, remote or undeveloped” areas, as the Appellate Division noted, is contrary to the view in the First Department (see, Russo v State of New York, 116 AD2d 240) and consistent with the view taken by the Fourth Department (see, Hirschler v ANCO Bldrs., 126 AD2d 971; contra, Michalovic v Genesee-Monroe Racing Assn., 79 AD2d 82, 85).

      . The concurrence, although rejecting suitability, does indicate that it would consider other factors in determining the applicability of the statute (see, concurring opn, at 51,52). It does not specify what these factors might be.

      . Indeed, the Bill Jacket to L 1972, ch 106 (adding bicycling to the section) includes a memorandum stating that General Obligations Law § 9-103 encourages snowmobile drivers, hikers, horseback riders and others to use abandoned railroad right-of-ways (see, Bill Jacket, at 3, Mem of Assemblyman Frank A. Carroll).

      . As originally proposed the amendment would have added only the words "motorized vehicle operation” to the statute (see, Bill Jacket, L 1971, ch 343). Because Vehicle and Traffic Law § 125 defined "motor vehicle”, in part, as "[e]very vehicle operated or driven upon a public highway” (emphasis added), the phrase "for recreational purposes” was added apparently to distinguish between on- and ofF-road driving (see, Mem to Governor’s Counsel from Assn of Bar of City of New York, Bill Jacket, L 1971 ch 343, at 12-13; see also, Mem of Assemblyman Emeel S. Betros, Bill Jacket, L 1971 ch 343, at 19-20). Thus, plaintiffs use of his motorized trail bike is not outside the statute because he was using it for transportation at the time of the accident.

       Despite the plurality’s reliance on Ferres v City of New Rochelle (68 NY2d 446), the holding in that case provides no support for an interpretation of the statute which would have it apply only if the property is appropriate for the recreational activity that the injured person was pursuing. Under such a test, the statute would have applied in Ferres because the municipal park was perfectly appropriate for the activity involved in that case — bicycling.