text:
    [647 NE2d 1266, 623 NYS2d 758]
    In the Matter of Jehan Abdur-Raheem, Appellant, v Louis Mann, as Superintendent of Shawangunk Correctional Facility, et al., Respondents.
    Argued January 3, 1995;
    decided February 14, 1995

      POINTS OF COUNSEL

      Robert Selcov, Poughkeepsie, Deborah Schneer and David C. Leven for appellant.

      Dennis C. Vacco, Attorney-General, Albany (Martin A. Hot-vet, Jerry Boone and Peter H Schiff of counsel), for respondents.
   OPINION OF THE COURT

Titone, J.

Petitioner brought this CPLR article 78 proceeding to challenge a prison disciplinary determination that he was guilty of violating certain inmate rules. The evidence on which the determination was based consisted principally of information that had been provided to prison authorities by confidential informants. The primary issue in this appeal from the dismissal of petitioner’s article 78 petition is whether the determination was supported by substantial evidence even though the Hearing Officer did not personally interview the informants. We hold that a personal meeting between the Hearing Officer and the confidential informants is not required and that the informants’ hearsay statements can constitute "substantial evidence” as long as there are objective circumstances demonstrating the informants’ reliability and, based on those circumstances, the Hearing Officer makes an independent finding that the informants’ evidence is, in fact, reliable.

I.

The charges in this case originated in the murder of an inmate named Normaul Busjit. Following an in-house investigation, petitioner was charged in a misbehavior report with breaching inmate rules prohibiting assaults and violations of the Penal Law. The misbehavior report, which was prepared by Correction Lieutenant Annetts and served on petitioner on June 9,1992, stated:

"Based on information provided by confidential sources, you * * * are hereby charged, in conspiracy with others, with the assault on inmate Nor-maul Busjit * * *, which occurred on May 4, 1992 in the facility gymnasium between the hours of 9:30 a.m. and 10:55 a.m., resulting in the death of Normaul Busjit.”

A Tier III hearing was conducted between June 12 and June 15, 1992 (see, 7 NYCRR part 254). Petitioner denied the charges, stating that he knew nothing about the incident. Although he acknowledged having been in the gymnasium during the period in question, petitioner asserted that he had never entered the adjoining bathroom in which the homicide took place. Twelve inmates testified on petitioner’s behalf, each stating that investigators had threatened hardships or promised special benefits in an effort to obtain cooperation. Two additional inmate witnesses whom petitioner had identified declined to testify after stating that they either did not want to get involved or did not have relevant knowledge about the incident. Petitioner also called Lieutenant Annetts, the investigating officer, and elicited that he had personally interviewed some but not all of the confidential informants. In the interests of security, however, the Hearing Officer imposed stringent restrictions on questions by petitioner that were designed to elicit the identity of the informants or the contents of their statements.

In addition to the live testimony, the Hearing Officer read into the record several memoranda regarding the incident, including a description of the discovery of Busjit’s body in the gymnasium bathroom. The Hearing Officer also advised petitioner that there was a confidential tape and other restricted information, all of which would be reviewed before the determination was made. Petitioner’s request for a redacted copy of the confidential information was rejected.

At the completion of the hearing, the Hearing Officer found petitioner guilty of the charges. In reaching Ms conclusion, the Hearing Officer stated: "It is my opinion that the confidential data presented to me was coherent, detailed, made sense, and is believeable [sic]. Thus, I relied on such confidential information.” The Hearing Officer imposed a penalty of nine years in the Special Housing Unit and loss of privileges, and the disposition was administratively affirmed. The penalty was reduced, however, after a Grand Jury failed to indict petitioner for second degree murder.

Petitioner brought the present article 78 proceeding to challenge the determination, raising several of the arguments he had previously made before the Hearing Officer. Among these arguments was the contention that the finding of guilt was defective because the Hearing Officer had not personally interviewed the confidential informants on whose statements he relied, and, consequently, he could not have independently assessed their credibility.

The Appellate Division rebuffed petitioner’s argument, stressing that there are several acceptable methods for evaluating an informant’s credibility other than conducting a personal interview and that there were sufficient objective indicia of reliability here. Rejecting petitioner’s additional claims of procedural error, the Court confirmed respondents’ determination and dismissed the petition. Having subsequently granted petitioner leave to appeal, we now affirm.

II.

It is beyond question that prison disciplinary determinations may be predicated on evidence other than live testimony and that, in fact, determinations based only on hearsay evidence such as misbehavior reports are permissible, assuming that the evidence is sufficiently reliable (People ex rel. Vega v Smith, 66 NY2d 130). Further, it has been held that confidential information may be considered even though the inmate has not been permitted access to it (Matter of Vogelsang v Coombe, 66 NY2d 835, affg 105 AD2d 913). These tenets are consistent with the underlying premise that an inmate does not have a constitutional right to cross-examine adverse witnesses at a disciplinary hearing (see, Matter of Laureano v Kuhlmann, 75 NY2d 141).

Petitioner does not dispute the foregoing principles, nor does he contend that a determination based primarily on information from a confidential source is invalid. Instead, his argument is that where confidential information is relied upon, the Hearing Officer must personally interview the informants to determine whether they are credible. Since the Hearing Officer in this case relied solely on the written material documenting the informants’ statements, petitioner contends, his obligation to make an independent credibility assessment was not satisfied.

We agree with petitioner’s threshold premise that a Hearing Officer in a prison disciplinary proceeding may not rely on information provided by confidential informants unless the Hearing Officer first makes an independent assessment of the informant’s reliability. While this Court has not expressly held as much, the lower courts of this State have long assumed that the Hearing Officer cannot simply rely on the investigating authority’s determination but must instead make his or her own evaluation of the informant’s credibility (e.g., Matter of Perron v Coughlin, 199 AD2d 903; Matter of Gaston v Coughlin, 182 AD2d 1085; Matter of Leach v Coughlin, 179 AD2d 1050; Matter of Franklin v Hoke, 174 AD2d 908; Matter of Moore v Coughlin, 170 AD2d 723; Matter of Carter v Kelly, 159 AD2d 1006; Matter of Nelson v Coughlin, 148 AD2d 779; Matter of Wynter v Jones, 135 AD2d 1032; Matter of Harris v Coughlin, 116 AD2d 896; Matter of Alvarado v LeFevre, 111 AD2d 475). Similarly, most of the Federal courts that have considered the issue have held that it denies due process for a Hearing Officer to simply adopt a determination of reliability that was made by the investigator who received the informant’s evidence (e.g., Richardson v Selsky, 5 F3d 616 [2d Cir]; Taylor v Wallace, 931 F2d 698 [10th Cir]; Freitas v Auger, 837 F2d 806 [8th Cir]; Zimmerlee v Keeney, 831 F2d 183 [9th Cir]; Henderson v Carlson, 812 F2d 874 [3d Cir]; Hensley v Wilson, 850 F2d 269 [6th Cir]; McCollum v Williford, 793 F2d 903 [7th Cir]; Mendoza v Miller, lid F2d 1287 [7th Cir]; but cf., Russell v Scully, 15 F3d 219 [2d Cir] [on reh]).

Adoption of this principle in the context of prison disciplinary proceedings is supported by the rationale that this Court has previously used in cases involving the issuance of warrants by neutral Magistrates. The Court has held that when an application for a search warrant has been predicated on information obtained from an informant, the judicial officer before whom the application has been placed cannot rely on the applicant’s assessment of the informant’s reliability but must instead make that assessment independently, usually on the basis of the facts contained in the application (e.g., People v Martinez, 80 NY2d 549; People v Hanlon, 36 NY2d 549; see, People v Griminger, 71 NY2d 635). The rule is derived from the self-evident premise that where the law requires the interposition of a neutral arbiter, the obligation to weigh and resolve the material fact questions lies squarely with the arbiter and may not be delegated to the investigator or accuser (see, People v Potwora, 48 NY2d 91, 94; People v Hanlon, supra). This axiomatic principle is certainly applicable in this context, where the potential penalty — extended confinement to the Special Housing Unit — is severe and the law and governing administrative rules require an adjudicative hearing before an impartial Hearing Officer (see, Wolff v McDonnell, 418 US 539; 7 NYCRR 254.1). Indeed, the regulations applicable to this class of hearings specifically exclude the "officer who reviewed the misbehavior report, or a person who has investigated the incident” from any fact-finding role (7 NYCRR 254.1).

III.

We conclude, however, that petitioner cannot prevail in his main argument, since its determinative premise — that the Hearing Officer’s obligation to assess credibility requires a personal interview with the informant — is not sustainable. The Federal courts have already held that there is no single mandatory method for determining the reliability of a confidential informant in the prison setting (Taylor v Wallace, supra; Freitas v Auger, supra; cf., Mendoza v Miller, supra). Indeed, the Federal view is that any reasonable method for establishing the informant’s reliability will suffice (see, Taylor v Wallace, 931 F2d 698, supra; see also, Kyle v Hanberry, 677 F2d 1386).

We decline petitioner’s invitation to reject this flexible Federal rule for a more stringent State rule that would make personal interviews the sine qua non of reliability assessments in prison disciplinary proceedings conducted in New York. We have previously eschewed the use of rigid evidentiary tests in prison disciplinary cases, holding instead in People ex rel. Vega v Smith (supra, at 139) that the correction agency’s determination must be based on " 'the kind of evidence on which responsible persons are accustomed to rely in serious affairs’ ” (accord, Matter of Lahey v Kelly, 71 NY2d 135; see also, Matter of Foster v Coughlin, 76 NY2d 964). This formula reflects our judicial preference for a pliant standard that is simply incompatible with the absolutist approach that petitioner advocates.

Moreover, while face-to-face contact is a helpful tool for assessing credibility, it is not the only dependable method. In the context of probable cause determinations, for example, we have held that the veracity of an anonymous informant’s tip can be proven through independent corroborative details (People v DiFalco, 80 NY2d 693; People v Elwell, 50 NY2d 231). Similarly, it has also been held that the existence of a satisfactory "basis of knowledge” for an anonymous informant’s tip may be established without reference to outside corroboration if the tip itself "is so detailed as to make clear that it must have been based on personal observation” (People v Elwell, supra, at 241). Notably, the standard underlying these rules for assessing probable cause, i.e., that the evidence should be "of a quality * * * reasonably to be acted upon” (id., at 236-237), is similar in some respects to the standard we articulated in People ex rel. Vega v Smith (supra, at 139) for the caliber of evidence on which prison disciplinary determinations must be based.

Finally, our disinclination to embrace a blanket rule requiring the Hearing Officer to interview the agency’s confidential informant in every case is reinforced by our sensitivity to the exigencies of maintaining order in the simmering and often dangerous prison environment. We have previously recognized the right and, indeed, the responsibility of prison officials "to reduce the risk of violence between the accused inmate and those who would charge him or furnish evidence against him” (Matter of Laureano v Kuhlmann, 75 NY2d 141, 146, supra). Other courts have also noted that "[r]etaliation is much more than a theoretical possibility” in prisons (Wolff v McDonnell, supra, at 562). While in camera interviews and other measures calculated to enhance secrecy may provide a measure of confidentiality, at least in the abstract, the efficiency of the prison grapevine is a factor that cannot safely and sensibly be ignored (see, McCollum v Miller, 695 F2d 1044, 1049; see also, McKinney v Meese, 831 F2d 728, 733; Withers v Levine, 615 F2d 158, 160, cert denied 449 US 849).

Notably, the ability of prison authorities to protect inmate-informants from exposure is critical to their capacity to maintain order and enforce prison disciplinary rules. Because of the nature of the prison environment, correction officials must rely heavily on the willingness of informants to report specific violations and provide general intelligence about the inner workings of inmate society (see, Kyle v Hanberry, supra, at 1390). This important channel of information would obviously be impaired if prison investigators were unable to assure their informants complete confidentiality (cf., People v Castillo, 80 NY2d 578). Accordingly, we should be wary of inappropriately restricting prison authorities’ ability to protect their informants and should instead give a measure of deference to the choices that those authorities make (see, Dawson v Smith, 719 F2d 896, 899, cert denied 466 US 929; see also, People ex rel. Vega v Smith, supra, at 142).

In this case, for example, the Hearing Officer had ample basis in the material before him to believe that petitioner was part of a tightly knit and far-reaching information network with a serious potential for retaliatory violence. Indeed, as the Hearing Officer specifically observed, petitioner "demonstrated [during the course of the hearing] that [he] kn[e]w who spoke to who[m] on all points.” Given the evident risk to the informants’ safety if their identity were revealed, the Hearing Officer committed no error of law in declining to have them called away from their daily routine for in camera interviews.

Indeed, the Hearing Officer did not in any way abdicate his adjudicative responsibility or otherwise fall into legal error in finding petitioner guilty of the charged violations on the basis of the record before him. It is apparent from the Hearing Officer’s statements that he reviewed the confidential file carefully and satisfied himself that the information it contained was reliable. Moreover, the factors that the Hearing Officer expressly relied on, Le., that the confidential information was "coherent,” "detailed” and "made sense,” are valid, well-accepted bases for making a credibility assessment (see, People v DiFalco, supra; People v Elwell, supra). Significantly, our own in camera review of the confidential material leads us to conclude that the Hearing Officer’s finding on this point is supported by the record. In addition to its internal coherence and detail, the confidential information before the Hearing Officer was corroborated in several important respects by independent documentary evidence that made the informants’ assertions highly credible. While the material’s specifics are protected by a continuing veil of confidentiality, we have no hesitancy in concluding that it was " 'the kind of evidence on which responsible persons are accustomed to rely in serious affairs’ ” (People ex rel. Vega v Smith, supra, at 139) and that, accordingly, there was substantial evidence for the agency’s determination of guilt.

We similarly reject petitioner’s contention that the Hearing Officer erred in denying petitioner’s request for a redacted copy of the confidential material on which the determination was based. In these circumstances, the identity of the source was evident from the substance of the information conveyed and, consequently, meaningful redaction was not possible (see, Matter of Morales v Senkowski, 165 AD2d 393 [Levine, J.]; see also, McCollum v Miller, supra, at 1048).

Petitioner’s contention that he did not receive adequate notice of the acts for which he was charged is equally merit-less. In the context of prison disciplinary proceedings, the notice requirement is satisfied when the inmate is given enough particulars to make an effective response (see, Matter of Lahey v Kelly, supra, at 144; Matter of Vogelsang v Coombe, supra). In this case, petitioner was given all the information necessary to the preparation of a defense, including that he was charged with conspiring to murder inmate Busjit, that the murder occurred during the morning of May 4, 1992 and that the facility gymnasium was the site of the crime. Contrary to petitioner’s contention, there was no need to notify him of the specific role he was alleged to have played, since the act of conspiring to commit a deadly assault was itself sufficient to constitute a violation of the prison rules (Standards of Inmate Behavior rules 1.00, 100.10 [7 NYCRR 270.2 (A), (B) (1) (i)]).

There was also no abuse of discretion in the Hearing Officer’s decision to deny petitioner an adjournment to prepare for the hearing. Petitioner had been notified of the charges on June 9, 1992 and met with his assigned assistant later that same day. He received all of the documents he requested on the evening before the hearing. Notably, there was nothing particularly complex about the material that might have required extended research or study. Most importantly, in denying an adjournment, the Hearing Officer told petitioner that any specific problems he had could be addressed as they arose during the course of the hearing. Petitioner did not identify any such problems during the hearing, and he has not identified on this appeal any particular prejudice he might have suffered as a result of the Hearing Officer’s decision. Finally, we find no basis for reversal in the Hearing Officer’s decision to conduct off-the-record interviews with two inmates to confirm those inmates’ refusals to testify on petitioner’s behalf. The Hearing Officer fully described the contents of those very brief exchanges on the record and, in this context, insisting on a pro forma record appearance by these "witnesses” would have served no useful purpose.

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

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

Judgment affirmed, without costs.


source: Caselaw Access Project

author: Levine, J.

license: Public Domain

text:
    [647 NE2d 1273, 623 NYS2d 765]
    In the Matter of Pace University et al., Appellants, v New York City Commission on Human Rights et al., Respondents.
    Argued January 12, 1995;
    decided February 14, 1995

      POINTS OF COUNSEL

      Kramer, Levin, Naftalis, Nessen, Kamin & Frankel, New York City (Marvin E. Frankel, Kevin B. Leblang and Robert I. Ruback of counsel), for appellants.

      Paul A. Crotty, Corporation Counsel of New York City (Helen P. Brown, Larry A. Sonnenshein, David Bruce Goldin and John R. Low-Beer of counsel), for New York City Commission on Human Rights, respondent.
   OPINION OW THE COURT

Levine, J.

Respondent Mittleman was hired by Pace University in 1981 as a full-time assistant professor, with the understanding that she would remain in that position for seven years and would be considered for tenure in her sixth year. In 1986, she was denied tenure by Pace on the grounds that she lacked a Ph.D. and a sufficient record of scholarly research or publications. At that time, she was offered a position of adjunct lecturer to teach half time at half her full-time yearly salary on a year-to-year basis. The offer specifically disclaimed any intent to award tenure and stated that all adjunct appointments are "subject to the needs of the institution and a capacity of the faculty member to continue to carry the work assignment satisfactorily.”

On January 29, 1987, Mittleman filed a complaint with the New York City Commission on Human Rights alleging that she had been denied tenure on the basis of her sex in violation of Administrative Code of the City of New York § 8-107 (1) (a). She subsequently concluded her seven years of full-time teaching through the fall 1987 semester. In the spring semester of 1988, she began teaching as a half-time adjunct lecturer pursuant to Pace’s prior offer. However, she refused to execute a January 1988 contract (Pace’s standard adjunct faculty appointment agreement) for that semester. She was further permitted to teach in adjunct status during the fall 1988 and spring 1989 semesters, although she did not execute contracts for those semesters, despite Pace’s standard policy of not allowing persons to teach without signed contracts.

During this period, Mittleman and Pace engaged in sporadic settlement negotiations, culminating in a February 1989 offer by Pace of a five-year adjunct contract with a 60% increase over her previous salary, in exchange for withdrawal of her discrimination complaint. When this offer was rejected by Mittleman, Pace wrote to her in a June 2, 1989 letter which referred to the pending litigation and stated that due to the "failure to reach agreement on the adjunct faculty appointment offered since January 1988”, she would not be offered an adjunct faculty appointment for the 1989-1990 year.

On July 11, 1989, Mittleman filed a second complaint with the Commission alleging that petitioners had retaliated against her for filing, or not withdrawing, her original complaint in violation of Administrative Code § 8-107 (7). After a hearing, the Commission dismissed the sex discrimination claim, finding that Pace’s denial of Mittleman’s tenure application was based solely on legitimate, academic considerations, but concluded that Pace had unlawfully retaliated against her by withdrawing her adjunct status for the 1989-1990 year.

We conclude that there does not exist on this record substantial evidence to support the Commission’s finding of retaliation on the part of petitioners (see generally, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 179-182). Moreover, the Commission’s determination was affected by an error of law. It rested largely on a finding that the nonrenewal of Mittleman’s adjunct status upon the breakdown of the settlement negotiations was not due to either of the two nonrenewal grounds stated in Pace’s original offer of adjunct employment — i.e., the needs of the institution and the capacity of the faculty member to satisfactorily perform her duties. In effect, the Commission determined that any other ground for nonrenewal would constitute retaliation as a matter of law. This was erroneous.

A prima facie case of retaliation requires evidence of a subjective retaliatory motive for the termination (see, Matter of Maloff v City Commn. on Human Rights, 46 NY2d 908, 910; 2 Larson, Employment Discrimination § 35.02 [2d ed 1994]; see also, e.g., Johnson v Palma, 931 F2d 203, 207 [2d Cir]; DeCintio v Westchester County Med. Ctr., 821 F2d 111, 115 [2d Cir], cert denied 484 US 965). The mere absence of evidence that Mittleman’s nonrenewal was based upon either of the two aforementioned reasons, standing alone, is insufficient to support a finding of retaliatory intent.

The record is devoid of evidence to support a retaliatory motive for the nonrenewal. There was no evidence before the Commission, for example, that Mittleman’s filing of the sex discrimination complaint was followed closely by discriminatory treatment (see, Johnson v Palma, supra, at 207). Indeed, she was offered adjunct contracts and retained to teach at Pace for some two and one-half years after she filed her sex discrimination complaint. Nor was there evidence that Pace engaged in a pattern of discriminatory treatment of fellow employees who filed similar complaints (see, DeCintio v Westchester County Med. Ctr., supra, at 115).

Further, we conclude that the June 1989 letter cannot reasonably be construed as direct evidence of retaliatory animus on the part of Pace (see, id.). As previously noted, that letter expressly grounded nonrenewal on the failure to reach agreement on Pace’s adjunct appointment offers "since January 1988” (emphasis supplied). This indisputedly includes the standard adjunct contract tendered Mittleman for the spring 1988 semester, which was not contingent on withdrawal of her sex discrimination claim. Thus, it would be unreasonable to construe the June 1989 letter as direct evidence that the nonrenewal was in retaliation for either Mittleman’s filing or failure to withdraw the discrimination claim. Rather, its only fair construction is that her adjunct status would not be renewed because of her protracted tactical decisions not to execute a series of adjunct contracts, in favor of her relying completely upon achieving full tenure in the pending discrimination proceeding.

Finally, even if the Commission could have found a prima facie case of retaliation here, Pace Provost Pastore testified regarding a legitimate, independent and nondiscriminatory reason for Mittleman’s nonrenewal — essentially that the University had concluded from her prior conduct that the likelihood she would execute an adjunct contract short of full tenure was nonexistent and that she could not be permitted to teach another year without a signed contract. This testimony was not discredited by the Commission nor shown by Mittleman to be pretextual based upon any other evidence in the record (see, Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 939; 2 Larson, Employment Discrimination §§ 35.01, 35.05 [2d ed 1994]; cf., Matter of Pace Coll. v Commission on Human Rights, 38 NY2d 28, 40).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the respondent Commission’s decision and order, insofar as it determined that appellants unlawfully retaliated against respondent Mittleman, annulled.

Chief Judge Kaye and Judges Simons, Titone, Smith and Ciparick concur; Judge Bellacosa taking no part.

Order reversed, etc.


author: Ciparick, J. Chief Judge Kaye

text:
    [647 NE2d 1275, 623 NYS2d 767]
    The People of the State of New York, Respondent, v Glen Van Norstrand, Appellant.
    Argued January 10, 1995;
    decided February 16, 1995

      POINTS OF COUNSEL

      Ronald C. Valentine, Public Defender of Wayne County (Peter J. Pullano, Rochester, of counsel), for appellant.

      Richard M. Healey, District Attorney of Wayne County, Lyons (Valerie Friedlander, Albany, of counsel), for respondent.
   OPINION OF THE COURT

Ciparick, J.

The issue presented on this appeal is whether the trial court committed reversible error by denying defendant’s request to charge third degree assault as a lesser included offense of first degree assault.

On the night of March 20, 1991, defendant called for emergency assistance on behalf of his four-month-old son. When the emergency medical technician arrived, defendant advised him that the infant fell off a bed and hit his head on a safe. The technician observed that the child was unresponsive and bruised, and transported him to the emergency room of the local hospital. Following an examination during which the child experienced two or three episodes of decreased respiration, the doctor diagnosed an intracerebral subarachnoid hemorrhage. The doctor directed that the child be transported to Strong Memorial Hospital in Rochester for specialized treatment of the intracranial injury.

The following day, the infant, who was in a coma and had already experienced up to 15 seizures, was admitted to the Children’s Critical Care Center at Strong Memorial Hospital. Dr. Brahm Goldstein, the Associate Director of the Center, conducted an examination subsequent to the infant’s admission, and determined that he was in a life-threatening situation. The infant’s level of consciousness was so depressed that he required artificial ventilation to breathe, and a CT scan revealed substantial swelling of the brain, as well as hemorrhages in two areas of the brain. Based on these findings, Dr. Goldstein concluded that the infant’s injuries were totally inconsistent with the accident as described by his father, and were the result of "Shaken Baby Syndrome[].”

The same day the infant was admitted to Strong Memorial Hospital, defendant was brought to the police station for questioning. After he was advised of his rights, defendant reiterated his account of what happened, which mirrored the reports he gave to the police the night before. The police officers, who had discussed the infant’s injuries with Dr. Goldstein, then told defendant that they did not believe him. The officers continued to question defendant about the incident over the next two hours, the substance of which was reduced to a written statement, signed by defendant.

In the statement, defendant explained that he had been caring for three children, his four-month-old son, and his girlfriend’s two young children, over the previous four days while his girlfriend was hospitalized for a gall bladder operation. Defendant stated that he was under "a lot of stress” and had not gotten much sleep. On the night of the incident, he brought the children to the hospital to visit his girlfriend, and returned home at about 9:30 p.m. His girlfriend’s two children, who were 4 and 5 years old respectively, immediately went to bed, and he changed his son and placed him on his bed, hoping he would fall asleep without a bottle. Defendant stated he brought the infant to the couch and gave him a bottle, but the infant continued "fussing” and would not fall asleep. According to defendant, he was tired and lost his temper at this time. Holding the infant underneath his arms, defendant shook him back and forth "pretty hard” with both hands and yelled "Why don’t you go to sleep[?]” Defendant conceded that the infant’s head was not supported by anything and snapped back and forth once. Further, defendant related that he may have hurt the infant’s ribs when he was shaking him because he had "naturally strong” hands, and that the bruises on the infant’s nipples were caused by his thumbs. When defendant placed the baby on the couch, possibly hitting the baby’s jaw on the springs or side of the couch, he noticed that the baby had turned white and appeared limp, prompting him to seek emergency assistance. Defendant acknowledged that the infant did not fall off the bed as he originally told the emergency medical technician and the police.

After defendant signed his statement, he was arrested. Subsequently, defendant was indicted for one count of assault in the first degree (Penal Law § 120.10 [3]), one count of assault in the second degree (Penal Law § 120.05 [8]), one count of reckless endangerment in the first degree (Penal Law § 120.25), and one count of endangering the welfare of a child (Penal Law §260.10 [1]). Defendant thereafter moved to suppress his March 21, 1991 statement. The trial court ruled that the statement was admissible, and it was admitted as evidence at the trial. At the trial, the jury heard testimony from the emergency medical technician, the police investigators who took defendant’s statement, the physician who first examined the infant in the emergency room, the pediatrician who diagnosed the infant with Shaken Baby Syndrome at Strong Memorial Hospital, the infant’s regular pediatrician, defendant’s girlfriend, and the girlfriend’s sister.

At the close of the People’s case, defendant moved to dismiss the assault counts and reckless endangerment count for lack of proof, and requested the trial court to charge the jury on third degree assault as a lesser included offense of first degree assault. The trial court denied both branches of defendant’s motion. Subsequently, the jury returned a verdict finding defendant guilty of assault in the first degree and endangering the welfare of a child. The trial court sentenced defendant as a persistent felony offender to an indeterminate sentence of 25 years to life in prison.

Defendant appealed, arguing, inter alla, that the trial court erred in refusing to charge the lesser included offense of assault in the third degree. The Appellate Division affirmed, with two Justices dissenting (see, People v Van Norstrand, 198 AD2d 800). One of the dissenting Justices granted leave to appeal to this Court, and we now reverse.

Penal Law § 120.00 (2) identifies a person who "recklessly causes physical injury to another person” as guilty of assault in the third degree. A person commits the greater crime of first degree assault under Penal Law § 120.10 (3) when "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death * * * and thereby causes serious physical injury”. Under Penal Law § 15.05 (3), "[a] person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists.” Therefore, the crime of first degree depraved indifference assault under Penal Law § 120.10 (3) occurs when an actor "is aware of and consciously disregards” "a grave risk of death to another person.” The lesser crime of third degree reckless assault occurs under Penal Law § 120.00 (2) when the actor "is aware of and consciously disregards” a risk that "physical injury” will result.

We have established a two-prong analysis to determine whether a defendant is entitled to a lesser included offense charge (see, People v Glover, 57 NY2d 61, 63; People v Butler, 84 NY2d 627; see also, CPL 1.20 [37]; 300.50 [1]). First, defendant must establish that it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct. Secondly, there must be a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater (see, People v Glover, 57 NY2d, at 63, supra; People v Cabassa, 79 NY2d 722, 728, cert denied sub nom. Lind v New York, — US —, 113 S Ct 633; CPL 1.20 [37]; 300.50 [1]).

Because it is impossible to commit first degree depraved indifference assault without simultaneously committing third degree reckless assault, and all the elements of third degree assault are subsumed in first degree assault, third degree assault is a lesser included offense of first degree assault. Thus, the first prong of the Glover analysis is satisfied (see, People v Glover, 57 NY2d, at 64, supra; see also, CPL 300.50 [2]; People v Butler, 84 NY2d 627, 631, supra).

As to the second prong, we conclude, contrary to the determination of the courts below, that there is a reasonable view of the evidence presented which could support a jury finding that defendant committed the lesser offense of third degree assault but not the greater offense of first degree assault (CPL 300.50 [1]). Our inquiry is not directed at whether persuasive evidence of guilt of the greater crime exists, as it does here, but whether, under any reasonable view of the evidence, it is possible for the trier of facts to acquit defendant on the higher count and still find him guilty of the lesser one (see, People v Henderson, 41 NY2d 233, 236; People v Mussenden, 308 NY 558, 562).

Based on defendant’s own account of the incident in question, his fatigue and "stress” caused him to "las[e his] temper” and vigorously shake his infant son. A reasonable fact finder could infer that although defendant acted recklessly — disregarding the known risk that his infant son could be injured by his conduct — he nevertheless lacked an awareness of the grave risk of death inherent in shaking an infant. Thus, the fact finder, viewing the circumstances of this case, could rationally conclude that defendant committed the charged acts but did so with the less culpable awareness that his misconduct created a "substantial and unjustifiable risk” of physical injury and not of death (compare, Penal Law § 120.00 [2], with Penal Law § 120.10 [3]). Therefore, defendant was entitled to a charge-down to third degree reckless assault because a reasonable view of the evidence supported the finding that he acted with awareness of and conscious disregard for a risk of physical injury, not a grave risk of death.

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

Chief Judge Kaye

(dissenting). There is no law question in this case. The only issue before us — as was the only issue before the Appellate Division — is whether the facts required the Trial Judge to charge the lesser included offense of assault in the third degree, a misdemeanor. The Appellate Division majority agreed with the Trial Judge’s conclusion that there was no reasonable view of the evidence to support an inference that this defendant was aware of a risk of physical injury but not of a grave risk of death when he admittedly injured his infant son. Two dissenters (one of whom granted leave to appeal to this Court) felt otherwise.

Judge Bellacosa and I conclude that, on this record, the trial court — which had an opportunity to view the witnesses and assess the evidence concerning defendant’s state of mind— correctly determined that defendant was not entitled to the misdemeanor charge.

In People v Steinberg (79 NY2d 673) we rejected defendant’s contention that a person without a medical education would be unaware that failure to seek medical attention for a child one had severely beaten could lead to that child’s death. At this advanced stage of civilization, we should also be able to state with equal confidence that reasonable persons are aware that severe physical abuse of a four-month-old infant creates a grave risk that the infant will die.

Defendant was familiar with the proper care and treatment of young children, acknowledging to a treating physician that he had even had "trouble” stemming from interaction with children in the past. He asserted that he was not so "stupid” as to leave an infant on the edge of a bed because a baby might fall and be injured. He was therefore admittedly aware that he was required to adhere to norms in caring for young children.

Defendant described his hands as "naturally strong,” and was aware that he "may have hurt” the baby’s ribs and that he had "shook him back and forth pretty hard.” He had also seen the child’s head "snap back and forth.” When he put the infant on the sofa, he did so in a manner that allowed the baby’s head to strike a spring or hard surface, bruising his jaw. Violent shaking of a young infant and striking a baby’s head against a hard surface are gross deviations from the norm.

At the time of the incident, defendant was also aware that he had "lost [his] temper” — suggesting he was fully aware of the impropriety of his conduct but consciously failed to hold himself in check.

Defendant was likewise aware, immediately after the event, that his conduct had severely injured the baby, who immediately became unresponsive and stopped breathing. Defendant also told the State Police a false exculpatory statement about how the infant had fallen off a bed and wedged his head between the bed and a floor safe, in an effort to account for the child’s head injuries, evincing a consciousness of guilt and an awareness of the gravity of the injury he had inflicted.

The medical evidence told a fuller story than defendant’s belated admissions, providing objective evidence of the brutal manner in which the infant had been handled prior to his arrival at the hospital, when he was in defendant’s exclusive care. The child suffered at least 15 seizures in the hours after arrival at the emergency room. A bruise appeared under the baby’s chin. Fresh bruises appeared on the right chest and a two-inch abrasion, with a break in the skin, appeared on the left side of the chest. CAT scans of the child’s brain showed that all of the brain tissue in the occipital region had been destroyed, and replaced by fluid. According to the People’s expert in pediatric trauma, only "very severe,” "very vigorous and violent shaking” could cause such damage. There was far more evidence here than the isolated conclusion of the majority that defendant "lost his temper” and "vigorously” shook his infant son.

According to the Practice Commentaries to article 120 of the Penal Law, illustrative of assault in the third degree is the " 'mischievous throwing of a hard object at great speed through the window of an occupied home’ ” (Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 120, at 447, citing Staff Notes of Commn on Eev of Penal Law, Proposed NY Penal Law, McKinney’s Spec Pamph, at 332 [1964]). Defendant’s wrongdoing in this case was hardly comparable.

Judges Simons, Titone, Smith and Levine concur with Judge Cipabick; Chief Judge Kaye dissents in a separate opinion in which Judge Bellacosa concurs.

Order reversed, etc.

       Shaken Baby Syndrome is the product of vigorous shaking of an infant, which causes the infant’s head to snap back and forth, at least once, often resulting in permanent brain damage.

       The jury was also instructed as to assault in the second degree. Defendant did not object to that charge, but the jury chose to convict of the higher count.


text:
    [647 NE2d 1280, 623 NYS2d 772]
    In the Matter of British Land (Maryland), Inc., Appellant, v Tax Appeals Tribunal of the State of New York et al., Respondents.
    Argued January 10, 1995;
    decided February 16, 1995

      POINTS OF COUNSEL

      Schulte Roth & Zabel, New York City (Michael S. Feldberg, Alan S. Waldenberg, Linda J. Cahn and Brooks R. Burdette of counsel), for appellant.

      Dennis C. Vacco, Attorney-General, Albany (Denise A. Hartman, Jerry Boone and Peter H. Schiff of counsel), for Commissioner of Taxation and Finance of the State of New York, respondent.
   OPINION OF THE COURT

Levine, J.

The issue on this appeal is whether the State violated the Due Process and Commerce Clauses of the United States Constitution by assessing a corporation franchise tax (see, Tax Law art 9-A) on about 64% of petitioner’s gain from its sale of commercial real property in Baltimore, Maryland, in 1984.

According to the essentially uncontested evidence and as found by the State Tax Appeals Tribunal, petitioner was incorporated in Delaware in May 1973. Petitioner was an indirect, six times removed subsidiary of British Land Company Pic., an international real estate investment company based in London. British Land Company owned and operated commercial real estate through subsidiary corporations in various parts of the world. A primary goal of petitioner was to purchase property that would appreciate in value.

Shortly after its incorporation, petitioner purchased for some $4.8 million all the capital stock of a Maryland corporation which owned the subject real property here, a 27-story office building in downtown Baltimore. The building was encumbered by a $6.6 million deed of trust. The stock purchase was financed by a $4.7 million loan from a commercial bank, guaranteed by British Land Company, and by a $115,-000 loan from a local Baltimore bank. W.C. Pinkard & Co. (Pinkard), a Baltimore real estate management firm, was retained to operate the building.

In 1980, pursuant to a decision by John Weston Smith, a vice-president of petitioner, the fee interest in the land of the Baltimore office building property was acquired. The strategy for the acquisition was developed by Pinkard and the purchase was actually made in the name of another British Land Company indirect subsidiary.

Some time after the fee of the Baltimore property had been acquired and the building fully rented, petitioner and British Land Company determined that there was a weakening in the Baltimore office rental market and that the property should be sold. The sale was eventually effected in March of 1984, as a sale of stock of newly formed subsidiaries to which the interests in the building and fee were transferred. Between the acquisition of the Baltimore property in 1973 and its sale in 1984, petitioner suffered operational losses on the property necessitating loans from other subsidiaries of British Land Company. Interest on the loans was accumulated rather than paid.

In 1982, petitioner first entered the real estate market in this State by acquiring an office building at 90 Broad Street in New York City for $27.6 million. Petitioner initially structured the transaction as a purchase of the capital stock of the corporate title holder of the fee to the land and building. The acquisition was financed by a bank loan of $40 million to cover the purchase price and any deficit and the costs of improvements. The loan was taken by British Land Company and guaranteed by petitioner, secured by a mortgage on the property. The guarantee by its terms was unenforceable against petitioner’s Baltimore property, the sale of which had already been decided upon.

Petitioner appointed a New York City real estate management firm to act as its agent for rentals at the 90 Broad Street office building. Beginning in 1984, petitioner’s vice-president Smith occupied office space at the New York City building, from which he managed petitioner’s affairs and also the United States properties of other British Land Company subsidiaries.

The State Department of Taxation and Finance issued notices of deficiency for the 1984 taxable year requiring petitioner to pay State corporation franchise taxes on a portion of the approximately $13 million capital gain on the sale of the Baltimore property, as determined by the statutory formula for allocation of the New York income of multistate corporate businesses operating in New York (Tax Law § 210 [3]). Essentially, the New York statutory formula determines the appropriate New York percentage share of total corporate net income by averaging the New York fractions of total tangible property, payroll and gross receipts, factoring in twice the New York fraction of total gross receipts (see, Tax Law § 210 [3] [a] [4]). The fact that the 1984 average value of petitioner’s 90 Broad Street New York City property was about three times the average value of its Baltimore property contributed significantly to a final allocation of petitioner’s income to New York of 64%. Thus, petitioner was charged with over $8.3 million of New York income on its $13 million gain from the sale of the Baltimore property, resulting in a total tax of some $978,000.

On administrative appeal to the State Tax Appeals Tribunal, the assessment was upheld. The Tribunal found that, during the 1984 taxable year, petitioner was conducting a unitary business with respect to its New York and Maryland properties. It based that determination on the existence of petitioner’s functional integration, centralization of management and economies of scale, as shown by the following factors: (1) a flow of value to both properties which was not at arm’s length, in that petitioner financed the acquisitions of both by loans and guarantees, without additional fees or other consideration charged against the properties; (2) centralization of management in the person of petitioner’s vice-president Smith who made the major strategic business decisions regarding the properties and oversaw the performance of the separate management firms in conducting the day-to-day operations of the two properties; and (3) petitioner’s engagement in the same line of business at its New York and Baltimore properties, the investment in commercial rental real estate. The Tribunal further concluded that petitioner had failed to sustain its burden of demonstrating that the allocation formula applied to determine the New York portion of the gain from the sale of the Baltimore property resulted in extraterritorial income being taxed.

On review, the Appellate Division confirmed the determination and dismissed the petition (202 AD2d 867). The Court held that there was substantial evidence to support the Tax Appeals Tribunal’s finding that petitioner’s New York City and Baltimore operations were a unitary business. It also held that petitioner had failed to satisfy its heavy burden of showing that the application of the statutory apportionment formula resulted in taxing extraterritorial values. The Court concluded that petitioner’s only evidence in support of that claim was the gross disproportionality of the apportionment results in comparison to petitioner’s New York income as shown in a separate geographic accounting, and that such evidence was insufficient as a matter of law. This appeal is now before us as of right because of the substantial constitutional questions at issue.

I.

The Due Process and Commerce Clauses of the United States Constitution prevent a State from taxing income of a nondomiciliary corporation arising out of extraterritorial activities unless there is a "minimal connection” or "nexus” between the outside activities and the taxing State, and a "rational relationship between the income attributed to the State and the intrastate values of the enterprise” (Mobil Oil Corp. v Commissioner of Taxes, 445 US 425, 436-437; see also, Allied-Signal, Inc. v Director, Div. of Taxation, 504 US 768, 772-773; Container Corp. v Franchise Tax Bd., 463 US 159, 165-166). Under a long and unbroken line of Supreme Court precedent, if the nondomiciliary corporation engages in business in the taxing State (concededly the case here), the taxing State need not identify and select out its specific intrastate income-producing activities so long as the corporation is operating a unitary business enterprise and the income is derived from the unitary business; it may then apply an apportionment formula to tax an appropriate proportional share of the interstate income of the enterprise (see, Underwood Typewriter Co. v Chamberlain, 254 US 113, 120-121; Butler Bros. v McColgan, 315 US 501, 509; see also, Allied-Signal, Inc. v Director, Div. of Taxation, 504 US, at 779-780, supra).

A correlative "limiting principle” of the right of each State to tax the interstate income of a multistate corporation’s unitary business by means of a formula apportionment is that the State may not tax income "that cannot in fairness be attributed to the taxpayer’s activities within the State” (Allied-Signal, Inc. v Director, Div. of Taxation, 504 US, at 780, supra). Thus, a formula-based tax on income may be struck down if " 'the income attributed to the State is in fact "out of all appropriate proportions to the business transacted [by the taxpayer] in that State” ’ ” (Container Corp. v Franchise Tax Bd., 463 US, at 170, supra; see, Hans Rees’ Sons v North Carolina, 283 US 123, 135) or if application of the apportionment formula has " ' "lead to a grossly distorted result” ’ ” (Container Corp. v Franchise Tax Bd., 463 US, at 170, supra). The taxpayer bears the burden of showing by " 'clear and cogent evidence’ that [application of the formula] results in extraterritorial values being taxed” (Butler Bros. v McColgan, 315 US, at 507, supra).

II.

Applying the foregoing principles here, we have no difficulty in upholding the Tax Appeals Tribunal’s conclusion that petitioner’s New York City and Baltimore real estate activities were part of a unitary business — the first prerequisite of a constitutionally valid application of an apportionment of income formula. That determination may not be disturbed if the agency "applied the correct standards to the case; and if it did, * * * its judgment 'was within the realm of permissible judgment’ ” (Container Corp. v Franchise Tax Bd., 463 US, at 176, supra).

As previously noted, the Tax Appeals Tribunal found a unitary business here because of the presence of petitioner’s functional integration, centralization of management and economies of scale. These factors in turn were supported by the evidence that the New York City property acquisition loan transaction was not at arm’s length, that petitioner’s vice-president oversaw the management and made the strategic decisions with respect to both properties and that the New York City and Baltimore activities were in the same line of business.

"The hallmarks of an acquisition that is part of the taxpayer’s unitary business continue to be functional integration, centralization of management, and economies of scale. Container Corp. clarified that these essentials could respectively be shown by: transactions not undertaken at arms length, 463 U.S., at 180, n. 19; a management role by the parent that is grounded in its own operational expertise and operational strategy, ibid.; and the fact that the corporations are engaged in the same line of business, id., at 178.” (Allied-Signal, Inc. v Director, Div. of Taxation, 504 US, at 789, supra.)

Thus, the Tribunal applied the correct standard and its determination of a unitary business was well within the range of permissible judgment, there being substantial evidence in the record to support its findings.

III.

The more difficult question presented here is whether petitioner met its heavy burden of showing, by clear and cogent evidence, that application of the statutory formula attributes New York income to petitioner "out of all appropriate proportion to the business transacted by [it] in that State” (Hans Rees’ Sons v North Carolina, 283 US, at 135, supra [quoted in Container Corp., 463 US, at 181, supra]). Put another way, did petitioner establish that New York "has applied a method [of apportionment], which, albeit fair on its face, operates so as to reach profits which are in no just sense attributable to transactions within its jurisdiction” (Hans Rees’ Sons v North Carolina, supra, at 134)?

The New York statutory formula must be deemed fair on its face. It bases apportionment of income on the averages of New York’s proportionate shares of an interstate corporation’s total tangible property, payroll and gross receipts. Using a State’s proportionate share of payroll, tangible property and gross receipts as the appropriate criteria for establishing the intrastate share of total net income is presumably valid because these factors "appear in combination to reflect a very large share of the activities by which value is generated” (Container Corp. v Franchise Tax Bd., 463 US, at 183, supra). The New York formula varies in only one respect from the tripartite formula applied most commonly throughout the United States and upheld in Container Corp. (supra), that is, New York requires that the fractional State share of gross receipts be averaged in twice in calculating New York’s total average share of the relevant economic indicia. It is not claimed here that this variation materially affects the facial validity of the New York apportionment formula.

Moreover, like the Appellate Division, we reject petitioner’s interpretation of Hans Rees’ Sons (supra) and People ex rel. Sheraton Bldgs. v Tax Commn. (15 AD2d 142, affd 13 NY2d 802), as holding that a tax on extraterritorial values can be established simply by showing that the taxpayer’s formula-based intrastate income is many times greater than the income reflected in a separate geographical accounting. Application of the apportionment formula has been upheld even when it has resulted in converting substantial losses shown in a separate accounting into net profits of even greater amounts (see, Exxon Corp. v Wisconsin Dept. of Revenue, 447 US 207; Butler Bros. v McColgan, 315 US 501, supra). As the Supreme Court reasoned in Butler Bros, v McColgan, the taxpayer’s California division contributed to the support of the taxpayer’s centralized management and central purchasing. Thus, it was reasonable to infer that the California operations helped to create the taxpayer’s net profit nationally, in the absence of evidence that "factors which are responsible for that [over-all] net income are present in other States but not present in California” (315 US, at 509, supra).

In our view, however, the Appellate Division erred in concluding that the only evidence submitted by petitioner that the application of the formula resulted in taxing extraterritorial values was the gross disproportionality (2,200%) of the gain on the Baltimore sale attributed to New York, $8.3 million, as compared to the net income of petitioner’s New York operations shown in a separate geographical accounting.

In addition to that marked discrepancy revealed by a separate accounting, the evidence showed, and the Tax Appeals Tribunal cited, four factors principally responsible for the appreciation in value of petitioner’s Baltimore property giving rise to the gain from its sale: (1) an improved economic climate in downtown Baltimore, due to the Baltimore Harbor Redevelopment Project; (2) sound management by Pinkard, resulting in high occupancy rates; (3) renovations to the building; and (4) acquisition of the fee interest in the property. The record clearly points to the conclusion that these factors, and any corporate decision-making involving them, occurred and had their economic impact on the Baltimore office building prior to the commencement of petitioner’s activities in New York upon acquisition of the 90 Broad Street, New York City, property in 1982. Indeed, the decision to sell the Baltimore office building was made before the purchase of 90 Broad Street. In this respect, therefore, and particularly because the single gain from the sale of the Baltimore property so dwarfed petitioner’s other net income, clear and cogent evidence supports the conclusion that two thirds of petitioner’s $13 million gain on the sale of the Baltimore property "cannot in fairness be attributed to [petitioner’s] activities within [New York] State” (Allied-Signal, Inc. v Director, Div. of Taxation, 504 US, at 780, supra).

Petitioner here submitted the proof which the taxpayer failed to show in Butler Bros., i.e., that the gain on the Baltimore property was attributable in far larger part to "factors * * * present in other States but not present in [New York]” (Butler Bros, v McColgan, 315 US, at 509, supra). The Tax Appeals Tribunal cited no significant countervailing flow of value to petitioner’s Maryland operation from its activities or the strategic decisions of its officers taking place outside of Maryland. Respondents cannot rely on benefits the Baltimore operations may have received from British Land Company, petitioner’s parent, or from British Land Company’s subsidiaries otherwise unrelated to petitioner. The State elected to base the tax treatment of the Baltimore property sale transaction as part of a unitary business strictly limited to petitioner as a single corporate entity with its own individual property holdings, rather than as part of some unitary real estate empire of British Land Company. Therefore, contributions from British Land Company or its other subsidiaries to the operation of the Baltimore office building or to its appreciation in value cannot be the basis for attributing additional New York income to the gain from the sale of that property.

There was one further area of proof of the taxing of extraterritorial value by application of the statutory formula here. The taxpayer’s unitary real estate business inventory consisted of only two properties, one in New York and one in Maryland. The New York property was a relatively recent acquisition, but at a significantly greater cost and of an average value during the taxable year of more than three times that of the Maryland property. Under these circumstances, the extremely marked differences in value inevitably had a distorting effect on the application of the statutory apportionment formula (see, Container Corp. v Franchise Tax Bd., 463 US, at 182-183, supra).

For all the foregoing reasons, we conclude that the Tax Appeals Tribunal’s determination must be annulled and the matter remanded to the Tribunal for a redetermination of an allocation of petitioner’s income more fairly reflecting its business activities in this State (see, Tax Law § 210 [8]).

Accordingly, the judgment should be reversed, with costs, respondent Tax Appeals Tribunal’s determination annulled and the matter remitted to the Appellate Division, Third Department, with directions to remand to respondent Tax Appeals Tribunal for further proceedings in accordance with this opinion.

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

Judgment reversed, etc.