text:
    [632 NE2d 1255, 610 NYS2d 932]
    In the Matter of New York Public Interest Research Group et al., Respondents, v David Dinkins, as Mayor of the City of New York, et al., Appellants, et al., Respondents.
    Argued February 17, 1994;
    decided March 22, 1994

      POINTS OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Timothy J. O’Shaughnessy and Kristin M. Helmers of counsel), for appellants.
    I. The City Council’s passage of the fiscal year 1991 budget modification rescinding the appropriation for the Independent Budget Office (IBO), and its adoption of the fiscal year 1992 budget containing no appropriation for the IBO, were in substance and legal effect local laws delaying the establishment of the IBO. (Matter of Gallagher v Regan, 42 NY2d 230; Matter of O’Rourke v Graul, 261 App Div 87; Ball v State of New York, 41 NY2d 617; Matter of Consolidated Edison Co. v Department of Envtl. Conservation, 71 NY2d 186; Alweis v Evans, 69 NY2d 199; Matter of Fogarty v Warden, 191 Misc 916, 297 NY 963; Morin v Foster, 45 NY2d 287.) II. Even if this Court believes that the budget modification and budget containing no appropriation for the IBO were not the equivalent of a local law, this Court should reverse the judgment appealed from because the lower courts abused their discretion by failing to defer to the determination of the Mayor and the City Council that an appropriation of as much as $3 million per year to the IBO could not be justified because of the cuts in City services required to find that money. (Matter of Sheerin v New York Fire Dept. Arts. 1 & IB Pension Funds, 46 NY2d 488; Matter of Coombs v Edwards, 280 NY 361; Matter of Durr v Paragon Trading Corp., 270 NY 464; Legal Aid Socy. v Ward, 91 AD2d 532, 61 NY2d 744; Matter of Frazier-Davis Constr. Co. v Gerosa, 6 AD2d 112; Matter of Gerges v Koch, 62 NY2d 84; Matter of Ahern v Board of Supervisors, 6 NY2d 376; Matter of Warehousemen’s Assn. v Cosgrove, 241 NY 580; Matter of Salisbury v Rogers, 252 App Div 223; Saxton v Carey, 44 NY2d 545.)

      Sam Sue, New York City, and John A. Gresham for New York Public Interest Research Group and others, respondents.
    I. The New York City Charter mandates the establishment and continued funding of the IBO. (Matter of Gallagher v Regan, 42 NY2d 230.) II. City Council’s failure to fund the IBO is not a repeal or amendment of New York City Charter § 259, as the law heavily disfavors repeal by implication. (Matter of Consolidated Edison Co. v Department of Envtl. Conservation, 71 NY2d 186; Alweis v Evans, 69 NY2d 199; Matter of St. Joseph’s Hosp. Health Ctr. v Axelrod, 74 AD2d 698, 49 NY2d 706; Church of Ascension v New York State Racing & Wagering Bd., 46 NY2d 776; Ball v State of New York, 41 NY2d 617; Matter of Gallagher v Regan, 42 NY2d 230.) III. Under State and New York City law, a budget resolution is not the legislative equivalent of amending or repealing the Charter, since it does not provide for the requisite Council deliberation. (Burke v Kern, 287 NY 203; Matter of Collins v City of Schenectady, 256 App Div 389; Matter of Gallagher v Regan, 42 NY2d 230; Ball v State of New York, 41 NY2d 617; Timpano v Hanna, 77 Misc 2d 874, 44 AD2d 912; Matter of O’Rourke v Graul, 261 App Div 87, 285 NY 755.) IV. City Council has no power to suspend New York City Charter § 259 by a local law, since such an act would amount to a curtailment of the appointment powers of elective officials and thus be subject to mandatory referendum. (Morin v Foster, 45 NY2d 287; Matter of Doherty v Sanvidge, 58 Misc 2d 347; Ferraro v Rettaliata, 165 AD2d 860, 76 NY2d 713; Matter of Fogarty v Warden, 191 Misc 916, 297 NY 963.) V. The courts have the authority and responsibility to require appellants to perform duties mandated by the City Charter. (Matter of Baum v Town Bd., 98 AD2d 918; Timpano v Hanna, 77 Misc 2d 874; Matter of McCoy v Mayor of City of N. Y, 73 Misc 2d 508; People ex rel. Francis v Common Council, 78 NY 33; Matter of Coombs v Edwards, 280 NY 361; Matter of Sheerin v New York Fire Dept. Arts. 1 & IB Pension Funds, 46 NY2d 488; Matter of Durr v Paragon Trading Corp., 270 NY 464; Legal Aid Socy. v Ward, 91 AD2d 532; Matter of Frazier-Davis Constr. Co. v Gerosa, 6 AD2d 112; Jiggetts v Grinker, 75 NY2d 411.)

      Cleary, Gottlieb, Steen & Hamilton, New York City (David S. Miller and Thomas J. Moloney of counsel), for Ruth W. Messinger and others, amici curiae.

    I. The City Council is in violation of the New York City Charter by failing to establish and fund the IBO. (Jiggetts v Grinker, 75 NY2d 411; Matter of Korn v Gulotta, 72 NY2d 363; Timpano v Hanna, 77 Misc 2d 874, 44 AD2d 912; Matter of Capozzoli v Wagner, 208 Misc 328; Morin v Foster, 45 NY2d 287; Ferraro v Rettaliata, 165 AD2d 860; Neils v City of Yonkers, 38 Misc 2d 691; Matter of

      Fogarty v Warden, 191 Misc 916, 273 App Div 910, 297 NY 963; Matter of Doherty v Sanvidge, 58 Misc 2d 347.) II. The order of mandamus against the City Council directing the establishment and funding of the IBO was appropriate. (Matter of Coombs v Edwards, 280 NY 361; Matter of Pruzan v Valentine, 282 NY 498; Matter of Durr v Paragon Trading Corp., 270 NY 464; Uniformed Firefighters Assn. v Beekman, 104 Misc 2d 829, 76 AD2d 1043, 52 NY2d 463; Matter of Craig v Board of Educ., 173 Misc 969, 262 App Div 706; Matter of Frankie v Board of Educ., 173 Misc 1050, 259 App Div 1006, 285 NY 541; Matter of Korn v Gulotta, 72 NY2d 363; Wein v Carey, 41 NY2d 498; Matter of Block v Sprague, 285 NY 69; People ex rel. Cropsey v Hylan, 199 App Div 218, 232 NY 601.)
   OPINION OF THE COURT

Smith, J.

The primary issue on this appeal is whether a provision in the New York City Charter requiring the funding of the Independent Budget Office (IBO) has been properly amended or repealed by the actions of the Mayor and City Council. Specifically, we consider (1) whether the adoption by the City Council of a modification of the City’s fiscal year 1991 budget that, among other things, eliminated funding for the IBO, as well as its adoption of the fiscal year 1992 budget that contained no appropriation for the IBO, was the legislative equivalent of a local law delaying the establishment of the IBO and (2) whether the 1991 budget modification and 1992 budget implicitly amended the Charter’s IBO provisions.

On November 7, 1989, a majority of the voters of the City of New York approved a revision to the New York City Charter establishing a new City agency, the IBO. The Charter Revision Commission formulated the IBO to reform the City’s budget-making process by, among other things, enhancing official and public understanding of the City’s budgetary matters.

The Charter IBO provisions state that the IBO shall be headed by a Director who shall be appointed upon the recommendation of the IBO Advisory Committee, by a special committee convened for that purpose (NY City Charter § 259 [a]). The IBO Advisory Committee must be comprised of 10 members appointed jointly by the Comptroller and the City Council President to serve staggered five-year terms (NY City Charter § 259 [d]). The Special Appointment Committee must consist of the Comptroller, the Council President, a borough president chosen by the borough presidents, and a council member chosen by the City Council (NY City Charter § 259 [a]).

The Comptroller and the City Council President were charged with the duty of appointing the IBO Advisory Committee by February 15, 1990 (NY City Charter § 1152 [d] [2]). The Advisory Committee had to make its recommendation to the Special Committee convened to appoint the IBO Director by June 15, 1990 (id.). The Special Appointment Committee was to appoint a Director no later than August 1, 1990 (id.).

The Director of the IBO is charged with the duty of appointing such personnel and procuring such services as shall be necessary to carry out the powers and duties of the IBO (NY City Charter § 259 [b]). Those powers and duties include providing the Comptroller, the City Council President, the members of the City Council committees, the borough presidents, and the community boards with information that will assist them in discharging their responsibilities related to the budgetary process (NY City Charter § 260). Appropriations equalling at least 10% of the appropriations for the expenses of the Office of Management and Budget shall be available to pay for the expenses of the IBO during each fiscal year (NY City Charter § 259 [b]).

For fiscal year 1991, pursuant to section 259 of the City Charter, $2,898,000 was appropriated for the IBO. In addition, the Mayor’s financial plan for fiscal years 1992-1994 predicted expenditures of approximately $2,600,000 annually for the IBO. However, due to a recessionary trend in the economy continuing into the second half of 1990, the Mayor projected a budget deficit of approximately $900,000,000 for fiscal year 1991. In an attempt to close the expected budget gap, the Mayor recommended that the City Council postpone start-up of the IBO until fiscal year 1993. On March 7, 1991, before any of the funds appropriated to the IBO were spent, the City Council approved a budget modification eliminating the funding for the IBO for fiscal year 1991.

An ongoing fiscal crisis in the City and an attempt to close another estimated budget gap resulted in the Mayor’s proposed budget for fiscal year 1992 containing no appropriations for the IBO. The City Council approved that budget on July 2, 1991. Likewise, the adopted budget for fiscal year 1993 contained no appropriation for the IBO. Citing a continuing local and national recession, and based on projected budget deficits through fiscal year 1996, the Mayor recommended that the start-up of the IBO be postponed indefinitely.

In October 1991, petitioners, not-for-profit advocacy, research and lobby groups, and community-based organizations involved in countless budgetary and housing causes in the City, commenced this CPLR article 78 proceeding in the nature of a mandamus to compel respondents Mayor and City Council to establish and fund the IBO, and to compel respondent IBO Special Appointment Committee to appoint a Director, in accordance with the IBO provisions in the City Charter. Supreme Court (1) granted the petition, (2) adjudged that the failure to fund the IBO constituted a violation of section 259 (b) of the City Charter, (3) adjudged that the failure to appoint a Director of the IBO by August 1, 1990 was a violation of sections 259 (a) and 1152 (d) (2) of the Charter, (4) ordered the Mayor and the City Council to include in the budget for fiscal year 1993 an allocation for the IBO that comports with section 259 (b), and (5) ordered the Special Appointment Committee to reinstitute the prescribed process for the appointment of the IBO Director within a prescribed period. The court concluded that the proceeding was properly brought in the nature of a mandamus since the provisions of the City Charter calling for the establishment and funding of the IBO, as well as the provision calling for the appointment of a Director, were cast in mandatory terms, as evidenced by the repeated use of the word “shall,” and as confirmed by the legislative history and intent of the Charter Revision Commission. The court also noted that the doctrine of legislative equivalency — the principle that legislative acts must be repealed or modified only by other legislative acts of equal import — must be observed in order to “effect the practical consequences of a formal amendment [to the City Charter] — be it to postpone the establishment of IBO or extinguish it all together” and that "nothing less than a duly enacted amendment is necessary to accomplish this result.” On appeal by respondents Mayor, City Council President, and City Council, the Appellate Division affirmed for the reasons stated by Supreme Court (see, 191 AD2d 364). This Court denied petitioners’ request to vacate respondents’ automatic stay pursuant to CPLR 5519 (a) (1) and granted respondents’ cross motion for leave to appeal (82 NY2d 747).

Respondents, relying on certain sections of the City Charter that provide that local laws shall be adopted by a majority vote of the City Council and by the approval of the Mayor (see, NY City Charter §§ 34-37, 40 [1]), as well as on section 256 which states that an adopted or modified budget “shall have the force of law,” urge that the courts below erred in concluding that nothing less than a duly enacted amendment is necessary to delay establishment and funding of the IBO. Respondents assert that the Mayor-proposed and City Council-approved fiscal year 1991 budget modification that rescinded the prior appropriation for the IBO, as well as the Mayor-proposed and City Council-adopted fiscal year 1992 budget containing no appropriation for the IBO, are the legislative equivalent of a local law delaying the establishment of the IBO. Petitioners argue that even assuming the City Council had the power to amend the City Charter by a budget resolution, it has not expressed its intent to do so. They argue further that any suspension of the enforcement of section 259 of the City Charter would require both the approval of the City Council and a referendum of the voters since it would abolish or curtail the power of four elected officials (the City Comptroller, the City Council President, a member of the Council and the Borough President of the Bronx).

It is clear that the Charter mandates the establishment of the IBO. The language of the Charter explicitly requires that the office be set up and funded. It is equally clear that the City Council has not expressed an intention to amend the Charter.

In Matter of Gallagher v Regan (42 NY2d 230, 234), this Court held that the adoption of a budget without an appropriation for a particular office in accordance with the provisions in a County Charter or Administrative Code was not the legislative equivalent of a local law amending the County Charter or Administrative Code to abolish that office. The Court reasoned that " 'a legislative act of equal dignity and import’ ” is required to modify a statute, and that " '[n]othing less than another statute will suffice’ ” (id., at 234). Further, section 32 of the New York City Charter ("Local laws”) provides, in part, "Except as otherwise provided by law, all legislative action by the council shall be by local law * * * [and e]very local law shall embrace only one subject” (see also, Municipal Home Rule Law § 20 [3] [every local law shall embrace only one subject]). Here, the 1991 budget modification and the 1992 budget did not embrace only one subject, but rather encompassed numerous subjects. In addition, the City Council adopted the 1991 budget modification and 1992 budget by resolution, which, as we have stated, is not an act of equal dignity and import with a local law delaying the establishment and funding of the IBO (see, 42 NY2d, at 234, supra [quoting 3 McQuillin, Municipal Corporations § 12.121 (3d ed)]).

Respondents also argue that the adopted fiscal year 1991 budget modification and fiscal year 1992 budget impliedly amended the City Charter to delay the start-up of the IBO because the Charter called for the establishment and funding of the IBO, whereas the adopted budgets contained no appropriations for that office. Petitioners assert that the City Council’s failure to fund the IBO should not be construed as an implied repeal or amendment of the Charter’s IBO provisions since the laws of this State favor express legislative actions.

It is settled that "[rjepeal or modification of legislation by implication is not favored in the law” (Matter of Consolidated Edison Co. v Department of Envtl. Conservation, 71 NY2d 186, 195; see also, Matter of Natural Resources Defense Council v New York City Dept. of Sanitation, 83 NY2d 215, 222 [Feb. 22 1994]; Alweis v Evans, 69 NY2d 199, 204; Ball v State of New York, 41 NY2d 617, 622). "Absent an express manifestation of intent by the Legislature — either in the statute or the legislative history — the courts should not presume that the Legislature has modified an earlier statutory grant of power to an agency” (Matter of Consolidated Edison Co., supra, at 195). Here, the City Council, in adopting the 1991 budget modification and the 1992 budget, did not manifest an intent to amend the City Charter’s IBO provisions. Those budgets are silent as to any such intention by the City Council.

Having concluded that the City Council’s adoption of the fiscal year 1991 budget modification and the fiscal year 1992 budget was not the legislative equivalent of a local law delaying the establishment of the IBO, or an implicit amendment to the Charter’s IBO provisions, we do not reach the question of whether amendments to the City Charter’s IBO provisions must be by referendum.

We do, however, consider respondents’ claim that the lower courts abused their discretion by failing to defer to their determination that an annual appropriation for the IBO is not feasible because it would mean reducing appropriations for other essential City services. While a proceeding in the nature of a mandamus to compel is available where, as here, the petitioners have demonstrated a clear legal right to require public officials to perform a duty enjoined upon them by the New York City Charter (see, CPLR 7801, 7803 [1]; see also, Matter of Coombs v Edwards, 280 NY 361, 364), issuance of a mandatory order lies in the discretion of the court in light of equitable principles (see, Matter of Sheerin v New York Fire Dept. Arts. 1 & IB Pension Funds, 46 NY2d 488, 496; Matter of Crane Co. v Anaconda Co., 39 NY2d 14, 18; Matter of Coombs v Edwards, 280 NY, at 364, supra). ”[0]nly where the case presented shows no room for the exercise of a reasonable discretion may it be held, as a matter of law, that there has been an abuse of discretion” (Matter of Coombs, supra, at 364).

Here, respondents assert that because of a difficult fiscal crisis, and since petitioners had ample information about the City’s budget and budgetary process even without the IBO, they decided to divert money that would have funded the IBO to other vital City services. The lower courts have ample room to exercise their discretion in compelling respondents to comply with the IBO provisions in the City Charter and to give meaning to the intention of the people as expressed through their vote. Thus, there was no abuse of discretion. However, in light of the mandate to respondents to comply with the Charter’s IBO provisions within a time period since passed, we must remit the matter to Supreme Court for that court to propose a new time frame within which compliance with those provisions must be had.

Accordingly, the order of the Appellate Division should be modified, with costs to petitioners, by remitting the matter to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

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

Order modified, with costs to petitioners, by remitting the matter to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      . The new Charter provisions were required by the decision in New York City Bd. of Estimate v Morris (489 US 688) which held that the structure of the Board of Estimate violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

      . Section 259 (a) of the New York City Charter provides, in part: "There shall be an independent budget office to be headed by a director who shall be appointed upon the recommendation of the independent budget office advisory board, by a special committee convened for this purpose. Such committee shall consist of the comptroller, the council president, a borough president chosen by the borough presidents, and a council member chosen by the council, and shall act by majority vote. The director shall be appointed without regard to political affiliation and solely on the basis of fitness to perform the duties assigned by this chapter.”

      . On January 1, 1994, the position of City Council President ceased to exist and the responsibilities of that office with respect to the IBO were assumed by the position of Public Advocate (Local Laws, 1993, No. 19 of City of New York).

      . New York City Charter § 259 (b) provides, in part: "The director shall appoint such personnel and procure the services of such experts and consultants, within the appropriations available therefor, as may be necessary for the director to carry out the duties and functions assigned herein. Such personnel and experts shall perform such duties as may be assigned to them by the director.”

      . The members of the IBO Special Appointment Committee did not appeal the judgment.

      . Municipal Home Rule Law § 23 (2) provides, in part:
      "Except as otherwise provided by or under authority of a state statute, a local law shall be subject to mandatory referendum if it: * * *
      "f. Abolishes, transfers or curtails any power of an elective officer.”
      Section 38 of the New York City Charter provides, in part:
      "A local law shall be submitted for the approval of the electors at the next general election held not less than sixty days after the adoption thereof, and shall become operative as prescribed therein only when approved at such election by the affirmative vote of a majority of the qualified electors of the city voting upon the proposition, if it: * * *
      "5. Abolishes, transfers or curtails any power of an elective officer.”


source: Caselaw Access Project

author: Bellacosa, J.

license: Public Domain

text:
    [632 NE2d 1260, 610 NYS2d 937]
    In the Matter of Jose R., a Person Alleged to be a Juvenile Delinquent, Respondent.
    Argued February 8, 1994;
    decided March 29, 1994

      POINTS OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Elizabeth

      I. Freedman and Francis F. Caputo of counsel), for appellant presentment agency. I. The Court below erroneously found a violation of Family Court Act § 350.1, where respondent’s Law Guardian expressly waived respondent’s right to a "speedy disposition” on the record, without time limitation or qualification; and the Family Court properly ordered, on the record, periodic successive adjournments of the dispositional proceedings, necessitated by respondent’s continued absence from court for over 14 months on a bench warrant, which constituted "good cause” and "special circumstances” for the successive adjournments, within the scope of Family Court Act § 350.1 (3), (5). (Matter of Randy K., 77 NY2d 398; Matter of Christopher WW., 189 AD2d 411; Matter of Roshon P., 182 AD2d 346, 80 NY2d 762; Matter of Faruq F, 186 AD2d 799, 81 NY2d 706; Matter of Nakia L., 81 NY2d 898; Matter of Daniel C, 151 Misc 2d 735.) II. Assuming the time limits in Family Court Act § 350.1 were not met, dismissal for such error is not authorized under the Family Court Act, which contains no provision guaranteeing a person adjudged to be a juvenile delinquent the right to a "speedy disposition,” comparable to the right to a speedy fact-finding hearing guaranteed by Family Court Act § 310.2, nor any provision mandating dismissal of petitions following fact finding, at the dispositional stage of the proceedings, for noncompliance with the time limits of Family Court Act § 350.1, comparable to the remedy of dismissal expressly provided in Family Court Act § 332.1 for violations of Family Court Act § 310.2. (Matter of Randy K., 77 NY2d 398; Matter of Faruq F., 186 AD2d 799; Matter of Christopher WW., 189 AD2d 411; Matter of Roshon P., 183 AD2d 346; Matter of David R., 150 AD2d 161; Matter of Brion H., 161 AD2d 832; Matter of Terrence T, 155 Misc 2d 184; Matter of Gregory C, 131 Misc 2d 685; Matter of Randy G., 127 Misc 2d 1079; People v Drake, 61 NY2d 359.) III. Assuming petitions are subject to dismissal at the dispositional phase for violations of Family Court Act § 350.1, such sanction should be applied prospectively only. (Matter of David R., 150 AD2d 161; Matter of Brion H, 161 AD2d 832; Matter of Roshon P., 182 AD2d 346; Matter of Christopher WW., 189 AD2d 411; People v Mitchell, 80 NY2d 519; People v Pepper, 53 NY2d 213, 454 US 967; People v Antommarchi, 80 NY2d 247; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184, 459 US 837; Gager v White, 53 NY2d 475, cert denied sub nom. Guertin Co. v Cachat, 454 US 1086.)

      Carol Goldstein, New York City, Lenore Gittis and Lisa Fishman for respondent.
    I. The Court below properly dismissed the delinquency petition where the dispositional hearing was adjourned for 14 months without showings and findings of "good cause” or "special circumstances” for the adjournments. (Matter of Randy K., 77 NY2d 398; Matter of Nakia L., 81 NY2d 898; Matter of Lydell J, 154 Misc 2d 94; Matter of Roshon P., 182 AD2d 346, 80 NY2d 762; People v Thatch, 71 NY2d 906; Matter of Gissette Angela P., 80 NY2d 863; Matter of Frank C., 70 NY2d 408; Matter of Christopher WW, 189 AD2d 411; Matter of Faruq F., 186 AD2d 799, 81 NY2d 706; People v Drake, 61 NY2d 359.) II. While the issue as to the prospective or retrospective application of the remedy for dismissal for violations of Family Court Act § 350.1 is not properly before this Court, if this Court nonetheless chooses to make a ruling on the issue, it must determine that the remedy be applied retroactively. (People v Payton, 51 NY2d 169; People v Mitchell, 80 NY2d 519; People v Pepper, 53 NY2d 213, 454 US 967; Matter of Christopher WW, 189 AD2d 411; Matter of Faruq F, 186 AD2d 799; Matter of Roshon P., 182 AD2d 346.)
   OPINION OF THE COURT

Bellacosa, J.

The juvenile in this case was adjudicated a delinquent for committing an act which if committed by an adult constituted unauthorized use of a motor vehicle. The delay between the fact-finding adjudication on November 2, 1990 and the dispositional hearing held on March 13, 1992 was attributable solely to the youth’s failure to appear, as directed upon his release from custody after fact finding. The Appellate Division reversed and dismissed the juvenile delinquency petition and adjudication (194 AD2d 310) on the ground essentially that Jose R. was deprived of a speedy dispositional hearing (see, Matter of Randy K., 77 NY2d 398; Matter of Frank C, 70 NY2d 408; Family Ct Act § 350.1).

On appeal to this Court, which we granted to the presentment agency, we conclude that the order of the Appellate Division is appealable and should be reversed and the Family Court adjudication should be reinstated.

L

Initially, respondent Jose R. challenges the jurisdiction of this Court to grant leave to appeal in this case. Respondent posits that appeals by a presentment agency in juvenile delinquency proceedings under article 3 of the Family Court Act are governed exclusively by Family Court Act § 365.1 (2). We disagree (contrast, Matter of Leon H., 83 NY2d 834 [decided today]).

Family Court Act § 365.1 was enacted as part of a comprehensive procedural recodification of juvenile delinquency proceedings in a new, separate article 3 of the Family Court Act (L 1982, ch 920). By its express terms, section 365.1 (2) applies only to "[a]n appeal to the appropriate appellate division * * * as of right by the presentment agency”. Indeed, Family Court Act § 365.1 does not expressly cover appeals to the Court of Appeals by either a respondent or a presentment agency. In the absence of any specific provision of Family Court Act article 3 dealing directly with appeals by either a respondent or a presentment agency from an order of the Appellate Division, we conclude that the Legislature intended to leave operative our earlier decisions treating orders of the Appellate Division as appealable in juvenile delinquency cases appealable pursuant to the provisions of CPLR article 56 (see, e.g., Matter of Quinton A., 49 NY2d 328; Matter of Anthony S., 47 NY2d 754; Matter of Tony M., 44 NY2d 899; Matter of Daniel D., 27 NY2d 90, cert denied 403 US 926).

Moreover, accepting jurisdiction of this appeal does not conflict with the legislative policy underlying the statutory provision in Family Court Act § 365.1 (2) limiting presentment agency appeals to the Appellate Division from dismissals to those granted before fact finding. That limitation was intended to avoid conflict with double jeopardy principles (see, Matter of Kevin B., 128 AD2d 63, 67, affd sub nom. Matter of Timothy L., 71 NY2d 835; Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 365.1, at 584; and Besharov, 1988 Supp Practice Commentaries, 1994 Pocket Part, at 196). No double jeopardy bar to entertain this appeal arises out of the Appellate Division’s reversal and dismissal of the petition, which was based not on the insufficiency of the evidence of the juvenile’s guilt at the completed fact-finding stage, but rather upon a violation of statutory time constraints made applicable to the dispositional phase (see, United States v Scott, 437 US 82, 98-99; United States v Wilson, 420 US 332, 334-335).

IL

The facts are undisputed. On January 31, 1990, Jose R. was arrested for grand larceny of an automobile. A delinquency petition was filed in Family Court. On November 2, 1990, following his arrest for an unrelated crime, the youth appeared in Family Court and entered an admission to acts which, if committed by an adult, would constitute the crime of unauthorized use of a vehicle (Penal Law § 165.05), and a fact-finding order was issued. Following a 10-day detention, he was released and directed to return to Family Court on November 23, 1990 for a dispositional hearing. He was then paroled to the custody of his mother, with direction to attend a program referred to as the Alternative to Detention School. The dispositional hearing was adjourned to December 21, 1990, but on December 14, 1990 an arrest warrant issued based on his failure to attend the Alternatives Program as a condition to his release. Approximately 14 months passed before he was again involuntarily returned to Family Court, this time on the warrant. The dispositional hearing was then promptly conducted. The Law Guardian objected and moved to dismiss the petition, claiming that Jose R. had been denied his right to a timely dispositional hearing. Family Court denied the motion to dismiss, and subsequently placed Jose R. in the custody of the State Division for Youth for a period of one year.

IIL

As to the statutory construction merits of the appeal, we start our analysis and discussion with the provisions themselves. Family Court Act § 350.1 (2) plainly directs that except when a juvenile is in detention "the dispositional hearing shall commence not more than fifty days after entry” of the fact-finding order. Adjournments are permitted sua sponte or on motion by the presentment agency "for good cause shown for not more than ten days; or (b) on motion by the respondent for good cause shown for not more than thirty days” (Family Ct Act § 350.1 [3]). The Family Court is required to "state on the record the reason for any adjournment of the dispositional hearing” (Family Ct Act § 350.1 [4]). Successive adjournments beyond the 50-day period "shall not be granted in the absence of a showing, on the record, of special circumstances,” which "shall not include calendar congestion or the status of the court’s docket or backlog” (Family Ct Act § 350.1 [5]).

These are primary protocols, but they are not the exclusive range of authority for the Family Court to deal with situations like the one at issue here. Statutes are to be construed according to the ordinary meaning of their words (see, Sega v State of New York, 60 NY2d 183). Application of this cardinal rule, however, is not to be mechanically applied when an absurd or futile result would ensue, especially one at variance with the policy and purpose of the legislation (Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 675; see, New York State Bankers Assn. v Albright, 38 NY2d 430, 437).

A significant language distinction exists between the statutory framework involving the dispositional phase and fact finding. For Family Court Act § 310.2 fact finding, the Legislature enacted a specific right to speedy adjudication. The express terms of this provision limit this protection to the fact-finding adjudication. The section is silent with respect to the dispositional phase. Even assuming an overarching speedy dispositional phase right does pertain, the Family Court Act does not correspondingly direct dismissal relief for a lapse in that regard, after fact-finding adjudication has been completed. As a matter of note, too, Family Court Act § 332.1 does provide expressly for dismissal of petitions and does not include failure of speedy dispositional hearing as a ground. "Where a statute describes the particular situations in which it is to apply and no qualifying exception is added, 'an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded’ ” (Matter of Alonzo M. v New York City Dept. of Probation, 72 NY2d 662, 665, quoting Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208-209; McKinney’s Cons Laws of NY, Book 1, Statutes § 240).

Family Court Judges, of course, should initially fully utilize their appropriate adjournment and monitoring powers. In unusual circumstances where the juvenile is not solely responsible for the delay, the Family Court retains the authority to dismiss. However, that court also possesses flexible authority to deal with circumstances of cases such as this one. Our analysis rejecting wholesale dismissals on a per se basis for speedy disposition lapses, irrespective of the reasons for the time lapse, is supported by elementary and logical rules of statutory construction.

The respective provisions governing fact finding and disposition serve different purposes and focus on functionally distinct stages of the juvenile delinquency proceeding. Thus, the decisional paths cut in Matter of Randy K. (77 NY2d 398, supra) and Matter of Frank C. (70 NY2d 408, supra) do not inexorably lead to the dismissal of the petition and Family Court adjudication, as directed by the Appellate Division. In contrast to the fact-finding phase, the objective of the dispositional hearing is the discernment of the appropriate mix of supervision, treatment or confinement "which is consistent with the needs and best interests of the respondent and the need for protection of the community” (Family Ct Act § 352.2 [2]). Dismissing a delinquency petition for failure of an adjudicated juvenile to show up for disposition is unwarranted because it diametrically contradicts the central goal of rehabilitative support designed to help the troubled youth. Nothing could be more discouraging to the core goal of the dispositional phase than to reward such disobedience to appropriate authority.

At disposition, the focus shifts from the criminal act of the juvenile to appropriate placement and assistance. Although the Family Court and criminal courts are inherently different and the juvenile delinquency proceeding is different from a criminal case, a parallel can be drawn for this narrow purpose between adult criminal procedures affecting speedy trial rights for the adjudication of guilt and the desirability of timely sentencing (see, Matter of Weinstein v Haft, 60 NY2d 625; and People v Drake, 61 NY2d 359, 365). When the delay in sentencing an adult is due solely to defendant’s irresponsibility, dismissal is not mandated as the prescribed remedy, especially on an automatic basis.

We conclude that the dismissal remedy should not be the per se solution for delays in the juvenile delinquency dispositional context such as occurred here. Notably, the State, the Family Court and the presentment agency did not deprive this juvenile delinquent of any right to a speedy disposition. He deprived himself of it by his deliberate refusal to return to court as ordered. A speedy disposition was always available to him. All he had to do was show up on time and it should not fall to the Family Court to use scarce personnel to find him and drag him back each time. To countenance obdurate and conceded incorrigibility concerning the court’s order after the court freed him upon his admission of guilt, by automatically dismissing the proceedings entirely, is not supported by our precedents or by applicable statutory construction.

We observe that the Legislature has been urged to study and rectify the procedural mishaps that culminated and made necessary the rulings — distinguished from this case because they were not dispositional stage cases — in Frank C. and Randy K. (see, 1994 Ann Report of Family Ct Advisory Commn, at 4-6). The Legislature would do well to review the entire spectrum and interplay of theoretical and practical protocols affecting the processing of the voluminous cases of the Family Court in a speedy and fair manner.

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

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

Order reversed, etc.


author: Simons, J.

text:
    [632 NE2d 1264, 610 NYS2d 941]
    Village of Valatie, Appellant, v Lynette Smith, Respondent.
    Argued February 16, 1994;
    decided March 30, 1994

      POINTS OF COUNSEL

      Rapport, Meyers, Griffen & Whitbeck, P. C., Hudson (David L. Krech of counsel), for appellant.
    I. The provision of law which requires termination of a nonconforming use upon a change of ownership is facially constitutional because it does not deprive the owner of all beneficial use of the property and is a reasonable means of achieving the elimination of all nonconforming uses. (Alliance of Am. Insurers v Chu, 77 NY2d 573; Cook v City of Binghamton, 48 NY2d 323; Matter of McGee v Korman, 70 NY2d 225; Matter of Ritter v City of Binghamton, 80 AD2d 710, 54 NY2d 629; First Broadcasting Corp. v City of Syracuse, 78 AD2d 490; Town of Pompey v Parker, 53 AD2d 125, 44 NY2d 805; Mobile Home Owners Protective Assoc. v Town of Chatham, 33 AD2d 78; Servatius v Town of Verona, 124 Misc 2d 848, 112 AD2d 706; People v Clute, 47 Misc 2d 1005; Matter of Pelham Esplanade v Board

      of Trustees, 77 NY2d 66.) II. The provision of law which requires termination of a nonconforming use upon a change of ownership is constitutional as applied because the property enjoyed the benefit of the nonconforming use for over 20 years and defendant submitted no evidence of any financial loss. (Modjeska Sign Studios v Berle, 43 NY2d 468; New York State Thruway Auth. v Ashley Motor Ct, 10 NY2d 151; Matter of Town of Islip v Caviglia, 73 NY2d 544.) III. Plaintiff was entitled to summary judgment. (Zuckerman v City of New York, 49 NY2d 557; Corcoran Group v Morris, 107 AD2d 622, 64 NY2d 1034; US 7 v Transamerica Ins. Co., 173 AD2d 311; Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338.)

      Miner & Miner, Hudson (Lance R. Miner of counsel), for respondent.
    I. The municipal ordinance terminating a prior nonconforming use merely upon change of ownership constitutes an illegal and unconstitutional taking of property and government control of ownership. (Matter of Dexter v Town Bd., 36 NY2d 102; Matter of Bexson v Board of Zoning & Appeals, 28 AD2d 848, 21 NY2d 961; Matter of Briener v Incorporated Vil. of Thomaston, 85 AD2d 730; Matter of Town of Islip v Caviglia, 73 NY2d 544; Matter of Harbison v City of Buffalo, 4 NY2d 553.) II. Summary judgment was properly granted to defendant-appellee.
   OPINION OF THE COURT

Simons, J.

This appeal challenges the facial validity of chapter 85 of the Village Code of the Village of Valatie, a local law that terminates the nonconforming use of a mobile home upon the transfer of ownership of either the mobile home or the land upon which it sits. Defendant argues that it is unconstitutional for the Village to use a change in ownership as the termination date for a nonconforming use. We conclude, however, that defendant has failed to carry her burden of showing that the local law is unreasonable on its face. Accordingly, we modify the order of the Appellate Division by denying defendant’s cross motion for summary judgment.

In 1968, the Village enacted chapter 85 to prohibit the placement of mobile homes outside mobile home parks. Under the law, any existing mobile home located outside a park which met certain health standards was allowed to remain as a nonconforming use until either ownership of the land or ownership of the mobile home changed. According to the Village, six mobile homes, including one owned by defendant’s father, fell within this exception at the time the law was passed.

In 1989, defendant inherited the mobile home from her father and the Village instituted this action to enforce the law and have the unit removed. Both the Village and defendant moved before Supreme Court for summary judgment. The court granted defendant’s motion and denied the Village’s. The court characterized defendant’s mobile home as a lawful nonconforming use — i.e., a use that was legally in place at the time the municipality enacted legislation prohibiting the use. Reasoning that the right to continue a nonconforming use runs with the land, the court held that the portion of the ordinance setting termination at the transfer of ownership was unconstitutional. The Appellate Division affirmed. The Court acknowledged that a municipality had the authority to phase out a nonconforming use with an "amortization period”, but it concluded that this particular law was unreasonable, and therefore unconstitutional, because the period of time allowed "bears no relationship to the use of the land or the investment in that use”. (190 AD2d 17, 20.)

Preliminarily, it is important to note that the question presented is the facial validity of the local law. The Court is not called upon to decide whether the local law os applied so deprived defendant of the value of her property as to constitute a governmental taking under the Fifth Amendment. Nor does defendant challenge the power of a municipality to regulate land use, including the placement of mobile homes, as a valid exercise of the police power (see, e.g., Mobile Home Owners Protective Assoc. v Town of Chatham, 33 AD2d 78; see generally, 1 Anderson, New York Zoning Law and Practice, ch 15 [3d ed]). Finally, there is no question that municipalities may enact laws reasonably limiting the duration of nonconforming uses (see, Matter of Pelham Esplanade v Board of Trustees, 77 NY2d 66; Matter of Town of Islip v Caviglia, 73 NY2d 544; Modjeska Sign Studios v Berle, 43 NY2d 468, appeal dismissed 439 US 809; Matter of Harbison v City of Buffalo, 4 NY2d 553; City of Los Angeles v Gage, 127 Cal App 2d 442, 274 P2d 34).

Thus, the narrow issue is whether the Village acted unreasonably by establishing an amortization period that uses the transfer of ownership as an end point.

The policy of allowing nonconforming uses to continue originated in concerns that the application of land use regulations to uses existing prior to the regulations’ enactment might be construed as confiscatory and unconstitutional (4 Rathkopf, Zoning and Planning § 51.01 [2] [b], at 51-6 [Ziegler 4th ed]). While it was initially assumed that nonconforming uses would disappear with time, just the opposite proved to be true in many instances, with the nonconforming use thriving in the absence of any new lawful competition (Matter of Harbison v City of Buffalo, 4 NY2d 553, 560, supra). In light of the problems presented by continuing nonconforming uses, this Court has characterized the law’s allowance of such uses as a "grudging tolerance”, and we have recognized the right of municipalities to take reasonable measures to eliminate them (see, Matter of Pelham Esplanade v Board of Trustees, 77 NY2d 66, 71, supra).

Most often, elimination has been effected by establishing amortization periods, at the conclusion of which the nonconforming use must end. As commentators have noted, the term "amortization period” is somewhat misleading (see, e.g., 4 Rathkopf, Zoning and Planning § 51B.05 [1], at 51B-44, n 3 [Ziegler 4th ed]). "Amortization” properly refers to a liquidation, but in this context the owner is not required to take any particular financial step. "Amortization period” simply designates a period of time granted to owners of nonconforming uses during which they may phase out their operations as they see fit and make other arrangements (id.; see also, Art Neon Co. v City & County of Denver, 488 F2d 118, 121 [5th Cir], cert denied 417 US 932). It is, in effect, a grace period, putting owners on fair notice of the law and giving them a fair opportunity to recoup their investment (Modjeska Sign Studios v Berle, 43 NY2d 468, 479, supra; Art Neon Co. v City & County of Denver, supra, at 121). Though the amortization period is typically discussed in terms of protecting the owners’ financial interests, it serves more generally to protect "an individual’s interest in maintaining the present use” of the property (Modjeska Sign Studios v Berle, supra, at 479).

The validity of an amortization period depends on its reasonableness (Matter of Harbison v City of Buffalo, 4 NY2d 553, 562-563, supra). We have avoided any fixed formula for determining what constitutes a reasonable period. Instead, we have held that an amortization period is presumed valid, and the owner must carry the heavy burden of overcoming that presumption by demonstrating that the loss suffered is so substantial that it outweighs the public benefit to be gained by the exercise of the police power (Matter of Town of Islip v Caviglia, 73 NY2d 544, 561, supra; Modjeska Sign Studios v Berle, supra, at 480). Using this approach, courts have declared valid a variety of amortization periods (see, 6 Rohan, Zoning and Land Use Controls § 41.04 [2], at 41-158). Indeed, in some circumstances, no amortization period at all is required (see, New York State Thruway Auth. v Ashley Motor Ct., 10 NY2d 151; People v Miller, 304 NY 105). In other circumstances, the amortization period may vary in duration among the affected properties (see, Matter of Town of Islip v Caviglia, supra). We have also held that an amortization period may validly come to an end at the occurrence of an event as unpredictable as the destruction of the nonconforming use by fire (see, Matter of Pelham Esplanade v Board of Trustees, 77 NY2d 66, supra).

Defendant here does not challenge the local law’s constitutionality under our established balancing test for amortization periods — i.e., whether the individual loss outweighs the public benefit. Instead, the challenge is a more basic due process claim: that the means of eliminating nonconforming uses is not reasonably related to the Village’s legitimate interest in land use planning. More particularly, defendant makes two arguments: first, that the length of an amortization period must be related either to land use objectives or to the financial recoupment needs of the owner and, second, that the local law violates the principle that zoning is to regulate land use rather than ownership (see, Matter of Dexter v Town Bd., 36 NY2d 102). Neither argument withstands analysis.

We have never required that the length of the amortization period be based on a municipality’s land use objectives. To the contrary, the periods are routinely calculated to protect the rights of individual owners at the temporary expense of public land use objectives. Typically, the period of time allowed has been measured for reasonableness by considering whether the owners had adequate time to recoup their investment in the use (see, e.g., Modjeska Sign Studios v Berle, 43 NY2d 468, 474, supra; accord, Matter of Town of Islip v Caviglia, 73 NY2d 544, 561, supra). Patently, such protection of an individual’s interest is unrelated to land use objectives. Indeed, were land use objectives the only permissible criteria for scheduling amortization, the law would require immediate elimination of nonconforming uses in all instances. Instead, the setting of the amortization period involves balancing the interests of the individual and those of the public. Thus, the real issue here is whether it was irrational for the Village, in striking that balance, to consider a nonfinancial interest of the individual owners — specifically, the individual’s interest in not being displaced involuntarily.

It is significant that the six properties involved here are residential. In our previous cases dealing with amortization, we have focused almost exclusively on commercial properties, where the owner’s interest is easily reduced to financial considerations. The same may not be true for the owners of residential properties, especially in instances where the property is the primary residence of the owner. Simply being able to recoup one’s financial investment may be a secondary concern to staying in a neighborhood or remaining on a particular piece of land. Indeed, when mobile homes are involved, there may actually be little or no financial loss, given that the owner often will be able to relocate the structure and sell the land for legal development. Here, rather than focusing solely on financial recoupment, the Village apparently took a broader view of "an individual’s interest in maintaining the present use” of the property (see, Modjeska Sign Studios v Berle, 43 NY2d 468, 479, supra; see also, Matter of Taksen Liq. Store v Bonisteel, 103 Misc 2d 34). It enacted a law that allowed owners to keep their mobile homes in place until they decided to sell, even though they may have recouped their investment long ago. By doing so, it saved the owners from a forced relocation at the end of a predetermined amortization period set by the Village. Defendant has not demonstrated why such an approach is irrational or explained why a municipality should be barred constitutionally from considering the nonfinancial interests of the owners in setting an amortization schedule. Thus, on this motion for summary judgment and the present record, defendant has failed to overcome the presumption of the law’s validity and prove, as she must, unconstitutionality beyond a reasonable doubt (McMinn v Town of Oyster Bay, 66 NY2d 544, 548; Northern Westchester Professional Park Assocs. v Town of Bedford, 60 NY2d 492, 500).

Equally unavailing on this facial challenge is defendant’s contention that the law might prevent some owners from recouping their investment. Defendant raises the hypothetical concern that in some circumstances owners might not have adequate time to recoup — for instance, if a sale took place shortly after the law’s enactment. Whatever the validity of that concern, it is not relevant to this facial challenge to the law. Defendant has not claimed that she was so injured, and her argument must fall to the general principle that a litigant cannot sustain a facial challenge to a law when that law is constitutional in its application to that litigant (see, People v Parker, 41 NY2d 21, 24; cf., Broadrick v Oklahoma, 413 US 601, 610).

Defendant’s second argument is premised on the "fundamental rule that zoning deals basically with land use and not with the person who owns or occupies it” (Matter of Dexter v Town Bd., 36 NY2d 102, 105, supra). In essence, the rule is a prohibition against ad hominem zoning decisions. In Dexter, for instance, a zoning change needed to allow a supermarket was to be effective only if a certain corporation developed the site. We voided the action on the ground that the identity of the site’s owner was irrelevant to its suitability for a certain type of development. Likewise, variances to accommodate the personal physical needs of the occupants have been denied on the basis that such needs are unrelated to land use (see, Matter of Fuhst v Foley, 45 NY2d 441). In the present case, defendant claims that the Village’s amortization scheme is similarly personal in that the right to the nonconforming use is enjoyed only by those who owned the property in 1968 and cannot be transferred.

Defendant misconstrues the nature of the prohibition against ad hominem zoning. The hallmark of cases like Dexter and Fuhst (supra) is that an identifiable individual is singled out for special treatment in land use regulation. No such individualized treatment is involved in the present case. All similarly situated owners are treated identically. The same is true for all prospective buyers. The only preferential treatment identified by defendant is that the owner in 1968 has rights that no future owner will enjoy. But the law has long recognized the special status of those who have a preexisting use at the time land controls are adopted. Indeed, the allowance of a nonconforming use in the first instance is based on that recognition. To the extent that defendant’s argument is an attack on special treatment for the owners of nonconforming uses it flies in the face of established law.

In fact, what defendant is actually arguing is that the Village should not be allowed to infringe on an owner’s ability to transfer the right to continue a nonconforming use (see, O’Connor v City of Moscow, 69 Idaho 37, 202 P2d 401). It is true that, in the absence of amortization legislation, the right to continue a nonconforming use runs with the land (Matter of Bexson v Board of Zoning & Appeals, 28 AD2d 848, affd 21 NY2d 961; Matter of Iazzetti v Village of Tuxedo Park, 145 Misc 2d 78; see also, 4 Rathkopf, Zoning and Planning § 51.03 [1], at 51-42 [Ziegler 4th ed]). However, once a valid amortization scheme is enacted, the right ends at the termination of the amortization period. As a practical matter, that means the owner of record during the amortization period will enjoy a right that cannot be transferred to a subsequent owner once the period passes. In such circumstances, the law is not rendered invalid because the original owner no longer has a right to transfer or because the original owner and subsequent owners have received disparate treatment under the land use regulations.

Here, of course, the absence of the right at the time of transfer is not left to the happenstance of when the owner decides to sell but is an explicit part of the legislative plan. But that difference does not change the test for the validity of an amortization period. The test remains whether the period unreasonably inflicts a substantial loss on the owner or fails to comport to the reasonableness required by due process. Put simply, there is no independent requirement that the right to continue the nonconforming use be available for transfer at a given time. That is true whether the right to continue the nonconforming use is terminated by the passage of time, destruction of the use, abandonment or, as here, transfer of ownership. Thus, the mere fact that the right cannot be transferred or that later owners are treated disparately from the original owner is insufficient to sustain defendant’s facial challenge to the ordinance.

Nor can we subscribe to the Appellate Division’s theory that the amortization period here is unreasonable because it may be too long. In the Appellate Division’s view, an open-ended amortization schedule does not reasonably advance land use objectives. The Appellate Division noted that if a corporation owned one of the mobile homes here, the amortization period would be limitless in theory. The Village answers by stating that all six mobile homes were owned by individuals, and thus amortization would end, at the latest, upon their deaths. Because the class of nonconforming users became closed at the law’s enactment and will never contain more than those six, the concern about corporate ownership is unfounded, the Village argues. At this point in the litigation, defendant has not demonstrated that the Village is factually in error as to the ownership of the six units.

Of greater concern to us, the Appellate Division’s rationale would seriously undermine the law of nonconforming uses. Amortization periods are the exceptions; in the absence of such schemes, owners of nonconforming uses are free to continue the uses indefinitely and transfer them to successor owners. Were the Appellate Division’s rationale accepted, amortization periods would be required to avoid the problem of indefinite continuation of nonconforming uses. Amortization periods have never been mandatory as a matter of constitutional law, and consequently we must reject the Appellate Division’s reasoning.

Thus, we conclude that defendant has failed to prevail on her facial challenge to the Village law. As to the remaining issues raised, further factual development is necessary.

Accordingly, the order of the Appellate Division should be modified, without costs, by denying defendant’s cross motion for summary judgment and, as so modified, affirmed.

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

Order modified, without costs, by denying defendant’s cross motion for summary judgment and, as so modified, affirmed.

      . Though the difference between a nonconforming use and a nonconforming structure will at times be relevant (see, Matter of Harbison v City of Buffalo, 4 NY2d 553, 561-562, supra), our reasoning in this case applies equally whether the mobile home is characterized as a use or a structure.

      . In attempting to distinguish Dexter, the Village notes that its local law was simply an exercise of its police power and not "zoning”. The distinction is irrelevant in this context.


author:
Smith, J.
      Levine, J.

text:
    [633 NE2d 446, 611 NYS2d 92]
    The People of the State of New York, Respondent, v Alejandro Mato, Appellant.
    Argued February 15, 1994;
    decided March 22, 1994

      POINTS OF COUNSEL

      John H. Wilson, New York City, and Dana G. Howard for appellant.
    I. The court improperly denied appellant’s request for a Wade hearing. (People v Wharton, 74 NY2d 921; People v Gordon, 76 NY2d 595; People v Roberts, 169 AD2d 284; People v Newball, 76 NY2d 587.) II. The trial court violated appellant’s right to due process and a fair trial when it refused to allow trial counsel to test the witness’ credibility by questioning bim regarding his procedure in securing a search warrant. (Illinois v Gates, 462 US 213; People v Griminger, 127 AD2d 74, 71 NY2d 635; Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; People v Bartolomeo, 53 NY2d 225; People v Rodriguez, 52 NY2d 483; People v Malinsky, 19 NY2d 262; People v Sharpe, 157 AD2d 808; People v Machlovitz, 57 Misc 2d 912.) III. The weight of the credible evidence was insufficient to sustain the People’s burden of proof at trial. (People v Cohen, 43 NY2d 872; People v Bryant, 106 AD2d 650; People v Dordal, 81 AD2d 598.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Elizabeth R. Nochlin and Norman Barclay of counsel), for respondent.
    I. The People proved defendant’s guilt of criminal sale of a controlled substance in the second degree beyond a reasonable doubt. (People v Malizia, 62 NY2d 755, 469 US 932; People v Dekle, 56 NY2d 835; People v Roche, 45 NY2d 78, 439 US 958; People v Andujas, 79 NY2d 113; People v Ortiz, 76 NY2d 446; People v Argibay, 45 NY2d 45, cert denied sub nom. Hahn-DiGiuseppe v New York, 439 US 930; People v Lam Lek Chong, 45 NY2d 64, 439 US 935; People v Sierra, 45 NY2d 56; People v Windley, 78 AD2d 55; People v Torres, 150 AD2d 816, 74 NY2d 820.) II. The court properly interrupted defense counsel when he attempted to cross-examine a police witness on a collateral matter. (Spinelli v United States, 393 US 410; Aguilar v Texas, 378 US 108; People v Griminger, 71 NY2d 635; People v Bartolomeo, 53 NY2d 225; People v Gonzalez, 68 NY2d 950; People v Hults, 76 NY2d 190; People v Coleman, 56 NY2d 269; People v Crimmins, 36 NY2d 230.) III. The court properly denied defendant’s request for a suppression hearing. (People v Rodriguez, 79 NY2d 445; People v Wharton, 74 NY2d 921; People v Morales, 37 NY2d 262; People v Gissendanner, 48 NY2d 543; People v Gordon, 76 NY2d 595; People v Newball, 76 NY2d 587.)
   OPINION OF THE COURT

Smith, J.

The primary issue here is whether the trial court erred when it denied defendant’s motion for a Wade hearing on the grounds that the identifications by the undercover police officer were confirmatory. Because we conclude that there was an error, we remit the case for a Wade hearing and, if necessary, a new trial.

On July 12, 1989, an undercover police officer was assigned to make a drug purchase along West 160th Street in upper Manhattan. He approached defendant outside 523 West 160th Street and told him that he wanted to purchase drugs. Defendant then summoned another individual who took the undercover officer to a second-floor apartment in 523 West 160th Street where he purchased drugs from a third individual. Defendant was not present in the apartment when the sale was consummated.

Subsequently, the undercover officer prepared a report in which he identified the location of the transaction as 527 West 160th Street. A search warrant was issued based upon this information and, on July 19, 1989, the police entered the wrong building and apartment and errantly arrested a family of four. The officers recognized their error and quickly voided the arrests.

The undercover officer was sent back to the area to obtain the proper address, and he then determined that he had made the July 12 purchase at 523 West 160th Street. Another warrant was issued and, on August 7, 1989, was executed after the officer purchased drugs from two individuals in the second-floor apartment at 523 West 160th Street.

On August 7, prior to the arrest of the defendant, the undercover saw defendant standing in front of the building at 523 West 160th Street. The undercover officer went upstairs and "conducted official business.” When he came back downstairs, he had a conversation with defendant which lasted about a minute. The undercover testified that defendant indicated through "a facial movement” and "hand movements” that he recognized the undercover officer. The two had a conversation both before and after the undercover went back upstairs "on official police business.” Although defendant was apparently not involved in any purchase of drugs on August 7, he was arrested in the hallway of 523 West 160th Street for criminal sale of a controlled substance in the second degree based on the July 12 transaction. Following his arrest, defendant was viewed by the undercover both in front of the building and at the police station.

At the trial, the undercover, in addition to testifying about the July 12th transaction, was permitted to testify that he saw defendant on August 7 both on the street and at the precinct. The trial court did not permit testimony about the nature of conversations held between the undercover and defendant on August 7. During a portion of the undercover’s testimony, a discussion was held at the bench between the court, the prosecutor and the defense attorney, apparently on defendant’s objection to the prosecutor’s question as to how defendant showed his recognition of the undercover on August 7. That discussion was not recorded and the defense attorney’s efforts to make a record were repeatedly rebuffed by the trial court.

Defendant’s pretrial motion for a Wade hearing was denied. After a jury trial, defendant was convicted of criminal sale of a controlled substance in the second degree.

On defendant’s appeal, the Appellate Division unanimously affirmed Supreme Court’s judgment, holding that the trial court properly denied defendant’s motion to suppress the identification at the precinct because notwithstanding the more than three-week interval, the identification was "confirmatory.”

Here, defendant contends that Supreme Court erred when it denied his request for a Wade hearing and that the Court violated his right to due process and a fair trial when it refused to allow defense counsel to raise issues of credibility by questioning one of the police officers about the issuance of a search warrant for the wrong address. The People contend that no Wade hearing was necessary and that there was no violation of due process.

Defendant is entitled to a Wade hearing for several reasons. First, this case involves a situation similar to that in People v Newball (76 NY2d 587). There this Court emphasized that a four-week lapse of time between the initial encounter and later identification by the police officer called into question the reliability of the identification and required both a notice from the People that identification testimony would be offered (see, CPL 710.30 [1] [b]) and a hearing.

Second, in People v Wharton (74 NY2d 921, 922-923), in denying a motion for a Wade hearing where the viewing by a trained police officer "occurred at a place and time sufficiently connected and contemporaneous to the arrest itself as to constitute the ordinary and proper completion of an integral police procedure,” this Court stated that a Wade hearing is necessary "[w]here the nature and circumstances of the encounter and identification [so] warrant.” In Wharton, the "assurances of reliability” of the identification were that the identifying officer (1) transacted business with the defendant knowing that he would be arrested shortly thereafter and (2) the same officer identified the defendant at the police station only three hours after the transaction (id., at 923).

In this case, the undercover first transacted business with defendant for minutes only on July 12. By the People’s own admission, he saw defendant "standing outside” as he passed the place of the transaction, but mistakenly wrote 527 West 160th Street instead of 523 West 160th Street. A search warrant was issued and executed for the wrong address based on the undercover’s error. Finally, it was not until August 7, 26 days later, that the undercover returned to the correct address and purchased more drugs, a transaction in which defendant apparently did not participate. Defendant was, however, arrested on August 7 and displayed to the undercover while handcuffed. Several minutes later, while at the precinct, the undercover viewed defendant again. These facts woefully fail the Wharton test, given the passage of time, the conceded error by the undercover, and the suggestiveness of the August 7 identifications of defendant by the undercover. Moreover, in Newball, four weeks elapsed between the identifications of the defendant and that period was held to be critically infirm. Here, the time expired between the undercover’s identifications is only days short of the period in Newball. Additionally, as we made clear in Wharton, the mere labelling of an identification as "confirmatory” will not obviate the need for Wade hearings. Case-by-case analyses of the facts and circumstances in each case remain necessary (see, People v Gordon, 76 NY2d 595, 601 ["(c)omprehensive analysis, not superficial categorization, ultimately governs”]).

Third, it should be clear that the testimony as to the identifications on August 7 is permissible pursuant to CPL 60.30 to strengthen the People’s case only if it refers back to the original transaction of July 12. In other words, the testimony by the undercover that he saw defendant handcuffed outside of the building and also identified him at the police station cannot, on the facts shown here, be considered confirmatory of an earlier viewing on August 7 but must relate back to the July 12th transaction. Thus CPL 60.30 authorizes a witness to testify about an identification of the defendant at a showup or lineup only in addition to the incriminating encounter, that is only when that witness testifies "he observed the person claimed by the people to be the defendant either at the time and place of the commission of the offense or upon some other occasion relevant to the case.” The August 7 observation of the defendant by the undercover had no relevance to the July 12 sale and, accordingly, that portion of CPL 60.30 referring to the date of the commission of the offense must be satisfied.

Finally, acknowledging the precarious nature of the process of identifying individuals in the fast-paced environment of drug transactions, we have noted that misidentifications must be tirelessly avoided to prevent ensnaring innocent individuals in the criminal process notwithstanding the well-meaning intentions of trained officers (see, People v Gordon, 76 NY2d 595, 601, supra). Thus, showup evidence should be avoided and "at the very least, subjected to Wade hearings” to safeguard accuracy (id., at 601).

Defendant is thus entitled to a Wade hearing and, if he prevails at the hearing, to a new trial. If the People prevail at the Wade hearing, the judgment should be amended to reflect that result.

Defendant’s argument as to the cross-examination of the police officer lacks merit.

Accordingly, the order of the Appellate Division should be modified by remitting the case to Supreme Court, New York County, for further proceedings in accordance with this opinion and, as so modified, affirmed.

Levine, J.

(dissenting). I respectfully dissent. Both the IAS Court and the Appellate Division (190 AD2d 513) found in this case that the August 7, 1989 postarrest, drive-by viewing of defendant by the undercover officer (on his own initiative) and the precinct viewing of defendant by him at the direction of the police backup team less than a half hour later were "confirmatory” identifications and, therefore, did not require a Wade hearing (United States v Wade, 388 US 218) to determine whether any in-court identification of defendant by the undercover officer would be tainted by the suggestiveness of the earlier identification procedures. To be sure, the lower courts’ labeling of an identification as confirmatory does not prevent this Court from determining, as a matter of law, that the evidence conclusively shows that the purpose of the viewing arranged by the police was to identify the suspect as the perpetrator of the crime, thereby requiring a Wade hearing (see, People v Gordon, 76 NY2d 595, 600-601; People v Wharton, 74 NY2d 921, 923). However, the concept of a confirmatory identification had been thoroughly refined when the courts below held that the postarrest viewings in this case were confirmatory.

Thus, in People v Morales (37 NY2d 262) this Court approved a station house showup on the basis of the finding of the trial court that "the viewing had not been for the purpose of identification but for [the undercover officer] to assure himself that his backup team had arrested the man he intended” (id., at 271). In People v Wharton (supra), we similarly characterized the postarrest drive-by and station house viewing by an undercover officer as confirmatory, and a proper "standard police operational procedure”, to insure "that an innocent person was not being detained by reason of a mistaken arrest” (74 NY2d, at 923). Essentially, we have upheld as confirmatory an identification by a police officer (i.e., a trained observer) made shortly after the suspect’s arrest at the viewer’s direction by other officers. Also, the initiation of the arrest by the viewing officer likewise must come shortly after and as the result of the last uncontrolled encounter between that officer and the suspect, such as during a drug transaction between the suspect and the viewing officer acting in an undercover capacity. We have, however, rejected the claim that a postarrest identification was confirmatory when there was a significant interval between the last uncontrolled encounter and the postarrest showup (see, People v Newball, 76 NY2d 587; People v Gordon, supra). We recognized that, with such a time gap, there would be a serious risk of misidentification even by a trained observer, hence the Wade safeguards against suggestive procedures at that next, controlled identification would be necessary (see, id.).

In this case, the uncontradicted testimony of the undercover officer at the trial was that the actual identification of defendant as a criminal participant in the July 12, 1989 cocaine sale took place earlier on August 7, 1989, when the officer, still operating undercover, went back to the site of the prior drug transaction to attempt another purchase just before the execution of a search warrant the police had already obtained. The undercover officer encountered defendant in the same location outside the premises where they first met on July 12 and recognized him as the "steerer” in the July 12 sale. The officer testified that defendant in turn spoke and acted as though he recognized the officer from their single previous contact. After the undercover officer succeeded in making another purchase of cocaine from defendant’s codefendant, he spoke to defendant again on the way out and, after departing, radioed a detailed description of defendant and his confederate to the police backup team. The raid of the drug sale premises then took place and defendant and his codefendant were arrested in the building where the cocaine purchases were made.

The undercover officer’s spontaneous identification of defendant on August 7 as he entered the targeted premises to make another cocaine purchase did not trigger the necessity of a Wade hearing, unless People v Gissendanner (48 NY2d 543) is no longer good law. Gissendanner and its numerous progeny hold that no Wade hearing is required for a victim or undercover officer identification which is not the product of a police-arranged presentation of the suspect to the viewer for the specific purpose of establishing the identity of the perpetrator of a crime (see, People v Gissendanner, 48 NY2d, at 552, supra; People v Rios, 156 AD2d 397, lv denied 75 NY2d 923; People v Rose, 152 AD2d 924, lv denied 74 NY2d 852; People v Parker, 127 AD2d 614, lv denied 69 NY2d 1008; People v Belushi, 114 AD2d 463, lv denied 67 NY2d 880; People v Medina, 111 AD2d 190; People v Dukes, 97 AD2d 445). Uncontestedly, defendant’s presence at the site of the prior drug sale when he was identified on August 7 by the undercover officer before being arrested was not police arranged, and was totally free of any of the aspects of contrived suggestiveness underlying the Wade decision. Defendant was there at his choice, not that of the police. The undercover officer’s prearrest identification of defendant on August 7 at the drug sale premises was a spontaneous act of recognition by the officer, apparently spontaneously reciprocated by defendant. As such, that prearrest, uncontrolled viewing was clearly not subject to an identification hearing under the authorities cited.

After thus identifying defendant during the course of his purchase of cocaine at the drug sale premises on August 7, the undercover officer set in motion the drug raid which immediately followed by radioing to his backup team that he had made a purchase and giving them a precise description of defendant and his codefendant. The uncontradicted testimony of the undercover officer at the trial amply supported an inference that the purpose of both of his postarrest viewings of defendant, within well under an hour of their uncontrolled prearrest street encounter, was confirmatory and not to identify defendant in the first instance as a criminal participant in the July 12 sale. The officer testified that, after receiving word that the suspects had been arrested and that he was to meet the raiding party at the precinct, the officer independently decided to drive to the arrest scene where he observed defendant in custody. At that point in his narrative of the chain of events his testimony was as follows:

"Q. And did the team have the correct man in custody?
"A. Yes they did.”

On both direct and cross-examination, the undercover officer described that his viewing at the precinct within minutes after seeing defendant at the arrest scene was a standard "confirmatory I.D.” by an undercover officer after a narcotics arrest.

In substance, then, the undercover officer testified that his postarrest viewings of defendant were merely to insure that the backup team had arrested the same person the officer had, shortly before, spontaneously identified as a participant in the July 12 drug sale. Thus, as in People v Morales (supra), by the time the undercover officer made his postarrest drive-by and precinct viewings of defendant, "identification [of defendant as a participant in the July 12 cocaine sale] was behind him” (37 NY2d, at 272). Instead, the postarrest viewings were merely to "len[d] assurance that an innocent person was not being detained by reason of a mistaken arrest” (People v Wharton, 74 NY2d, at 923, supra). Because the uncontradicted testimany of the undercover agent supports the conclusion that the postarrest showups of defendant were truly confirmatory in nature, the finding of the IAS Court to that effect, affirmed by the Appellate Division, should not be disturbed by this Court.

The majority’s concern over the possibility of a misidentification because of the lapse of time between the July 12 drug transaction which defendant participated in and the undercover officer’s prearrest spontaneous identification of defendant at the drug sale site on August 7 is understandable. But the purpose of a Wade hearing is not to prevent all misidentifications, but to prevent a misidentification attributable to suggestive police pretrial identification procedures (see, United States v Wade, 388 US, at 229-235, supra). As previously discussed, the spontaneous identification of defendant at the drug sale site before he was arrested was completely free of both any police arrangements and any suggestive conditions which might require a Wade hearing. The risk of misidentification by the lapse of time was fully explored at the trial by vigorous and searching cross-examination of the undercover officer, and it was well within the jury’s province to credit the undercover officer’s testimony and conclude that his identification of defendant was accurate.

Moreover, the majority in my view incorrectly concludes that, under CPL 60.30, the postarrest identifications of defendant by the undercover officer had to relate back to and be confirmatory of the July 12 drug purchase rather than the prearrest August 7 street identification of defendant at the drug sale premises. Under CPL 60.30, an eyewitness is permitted to testify to an additional pretrial identification when the witness has testified to observing the defendant either at the time and place of the commission of the crime "or upon some other occasion relevant to the case”. The undercover officer’s August 7 encounter with defendant at the site of the July 12 drug sale and the mutual recognition by the officer and defendant of their single previous encounter was highly relevant and admissible evidence to establish defendant’s identity as a participant in the July 12 cocaine sale (see, People v Carter, 77 NY2d 95, 107, cert denied 499 US 967; see also, People v Molineux, 168 NY 264; People v Jamerson, 119 AD2d 588, lv denied 68 NY2d 757).

For all the foregoing reasons, I vote to uphold the order of the Appellate Division affirming defendant’s conviction.

Chief Judge Kaye and Judges Simons, Bellacosa and Ciparick concur with Judge Smith; Judge Levine dissents and votes to affirm in a separate opinion; Judge Titone taking no part.

Order modified by remitting the case to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

       It should be noted that any discussion off the record between the court, prosecutor and defendant may leave an appellate court at a disadvantage in reviewing a point on appeal. Where, as here, the defense attorney is also precluded from making a record, the disadvantage is compounded.