author: Chief Judge Kaye.

text:
    [631 NE2d 83, 609 NYS2d 141]
    The People of the State of New York, Respondent, v Ronald Latham, Appellant.
    Argued January 5, 1994;
    decided February 10, 1994

      POINTS OF COUNSEL

      Ackerman, Wachs and Finton, P. C., Albany (F. Stanton Ackerman and Gregory A. Caito of counsel), for appellant.
    I. The opinion and order of the court below should be reversed in all respects. (People v Abbamonte, 43 NY2d 74; Matter of Abraham v Justices of N. Y. Supreme Ct., 37 NY2d 560; People v Rivera, 60 NY2d 110; Santobello v New York, 404 US 257; United States v Wray, 608 F2d 722.) II. The Double Jeopardy Clause of the United States Constitution prohibits appellant’s prosecution for murder in the second degree. (North Carolina v Pearce, 395 US 711; Benton v Maryland, 395 US 784; Blockburger v United States, 284 US 299; Brown v Ohio, 432 US 161; Illinois v Vitale, 447 US 410; Grady v

      Corbin, 495 US 508; Matter of Corbin v Hillery, 74 NY2d 279.) III. Because Shambeau’s death was foreseeable at the time of appellant’s plea and conviction for attempted murder, the People waived any further prosecution of Latham based on the same criminal act and transaction which he had already admitted.

      Mary O. Donohue, District Attorney of Rensselaer County, Troy, for respondent.
    I. The court below correctly determined that defendant would not be subjected to double jeopardy. (People v Rivera, 60 NY2d 110; People v Valerio, 182 AD2d 849.) II. Defendant’s prosecution is permissible under the Fifth Amendment Double Jeopardy Clause. (Blockburger v United States, 284 US 299; Illinois v Vitale, 447 US 410; Brown v Ohio, 432 US 161; Grady v Corbin, 495 US 508; Matter of Corbin v Hillery, 74 NY2d 279.) III. The People did not waive any further prosecution of defendant after his guilty plea.
   OPINION OF THE COURT

Chief Judge Kaye.

Weeks after defendant pleaded guilty to attempted murder and was sentenced for that crime, the victim of his attack died, and he was indicted for murder in the second degree. Because we conclude that the "delayed death” exemption from New York’s statutory protection against double jeopardy (CPL 40.20 [2] [d]) extends to the offense of attempted murder, the order of the Appellate Division reinstating the murder indictment must be affirmed.

I.

When Marie Shambeau broke off her relationship with defendant on May 18, 1990, he strangled and stabbed her. Some hours later, her parents found her under her bed, alive but gravely injured by a stab wound to the neck. Following extensive surgery, Shambeau suffered a stroke that left her paralyzed from the neck down. She was placed on a respirator and other forms of life support, and transferred to a long-term care facility.

Defendant eventually surrendered himself to authorities, and on June 8, 1990 was indicted for attempted murder in the second degree and attempted assault in the first degree. On January 9, 1991, he pleaded guilty to the top count — attempted murder in the second degree — and weeks later was sentenced to an indeterminate term of IVz to 22 ló years’ imprisonment.

At sentencing, defendant, who had no prior record, expressed remorse. He stated that when he had learned the extent of Shambeau’s injuries, he initiated plea negotiations to spare her the ordeal of testifying. The court noted that "all of these things are tragic in many different directions. However this young woman would have had a difficult time coming into court because she had a herniated disk. She’s virtually paralyzed from the neck down, on various life-support systems, and catheterization and so on. Her life is one ongoing tragedy too.” The presentence report, which was discussed at sentencing, fully described Shambeau’s condition, including her physicians’ inability to predict whether she would ever recover. Beyond a statement that the plea was in full satisfaction of the indictment for attempted murder and attempted assault, neither the People nor defendant raised any question regarding further prosecution if Shambeau died.

Seven weeks after defendant’s sentencing, Shambeau suffered another stroke and died. An indictment was subsequently returned charging defendant with one count of intentional murder and one count of depraved indifference murder, alleging that he had caused her death.

The trial court granted defendant’s motion to dismiss the second indictment on double jeopardy grounds. Although CPL 40.20 (2) (d) expressly permits a second prosecution where death occurs after a prosecution for an "assault or other non-homicide offense,” in People v Rivera (60 NY2d 110, 115, n 4) we left open the question whether this exemption to the double jeopardy prohibition extended to the offense of attempted murder. The trial court, observing that the "delayed death” exemption applied only to an "assault or other non-homicide” offense, defined a "homicide” offense as one in which the defendant admitted intending to cause death, and from which it could be anticipated, at the time of plea, that death might result. The court noted that defendant had admitted to attempting to cause the death of Shambeau and, at the time of plea and sentence, there was a "reasonable possibility” that she would die, concluding that defendant’s conviction of attempted murder had therefore been for a "homicide” offense and further prosecution was barred. The Appellate Division unanimously reversed the order of dismissal and reinstated the indictment.

Defendant’s central contention on this appeal is that the prosecution for murder in the second degree violates statutory and constitutional protections against double jeopardy.

II.

Under the Federal Constitution, double jeopardy arises only upon separate prosecutions arising out of the same "offence” (US Const 5th, 14th Amends; Blockburger v United States, 284 US 299). Dissatisfied with such limited protection, the Legislature in 1970 adopted a statute (CPL 40.20 [L 1970, ch 996]) providing comprehensive protection against separate prosecutions for "two offenses based upon the same act or criminal transaction” (CPL 40.20 (2); see, Matter of Abraham v Justices of N Y. Supreme Ct., 37 NY2d 560, 565). The statute contains eight exemptions (CPL 40.20 [2] [a] - [h]), describing eight types of successive prosecutions that receive no statutory protection, and are limited only by constitutional double jeopardy protections.

Thus, our analysis begins with the statute. We need consider defendant’s constitutional claim only if the separate prosecution for murder is exempt from statutory double jeopardy protection.

Here, as in People v Rivera (60 NY2d 110, supra), the People claim that the murder indictment is within the "delayed death” exemption (CPL 40.20 [2] [d]), which authorizes a second prosecution when "[o]ne of the offenses is assault or some other offense resulting in physical injury to a person, and the other offense is one of homicide based upon the death of such person from the same physical injury, and such death occurs after a prosecution for the assault or other non-homicide offense.” This "delayed death” exemption may be traced to the "sound policy reasons” underlying Diaz v United States (223 US 442), including the need for prompt adjudication (Rivera, 60 NY2d 110, 115, supra). Particularly in an era where medical advances can prolong the life of a critically injured victim, a prosecution must proceed on the basis of the victim’s present condition. Where death follows, however, it is also in society’s interest that a homicide be redressed.

Because the "delayed death” exemption does work an exception to the statutory double jeopardy prohibition, in Rivera we narrowly construed its applicability to cases in which the offense underlying the initial prosecution was "consistent with physical injury” and from which "physical injury resulted.” (60 NY2d, at 115.) Under the facts of this case, attempted murder is such an offense.* Moreover, while the trial court defined a "homicide” offense by looking to whether there was a reasonable possibility, at the time of plea, that the victim would die, the Penal Law defines homicide as conduct which "causes the death of a person” (Penal Law § 125.00). Attempted murder — which fails to cause the death of a person— is thus by definition a "nonhomicide” offense.

Statutory double jeopardy protection is therefore not available to defendant. Nor, under the facts of this case, would a separate prosecution for homicide violate the State or Federal Constitution (NY Const, art I, § 6; US Const 5th, 14th Amends).

Defendant’s constitutional claims are based entirely on Grady v Corbin (495 US 508), in which the Supreme Court held that a subsequent prosecution would be barred by the Double Jeopardy Clause if it required the government to prove, as an essential element of the new offense, "conduct” that constituted the former offense. Recently, however, the Court overruled the Grady "same conduct” test in United States v Dixon (509 US —, 113 S Ct 2849), reinstating the test of Blockburger v United States (284 US 299, supra) as the measure of whether a successive prosecution violated the Federal constitutional prohibition against double jeopardy.

Under Blockburger, two distinct statutory provisions do not constitute the "same offense” for double jeopardy purposes if each provision requires proof of a fact which the other does not (284 US 299, 304, supra). In the case of delayed death, however, Blockburger does not bar a second prosecution for homicide following conviction of assault or another nonhomicide offense because the consummating element of death distinguishes the two offenses, and is not known to or discoverable by the People at the time of the first prosecution (Brown v Ohio, 432 US 161, 169, n 7; Rivera, 60 NY2d 110, 116, supra). Defendant does not claim that he is entitled to greater protection under the State constitutional double jeopardy prohibition (NY Const, art I, § 6). We therefore reject both his State and Federal constitutional claims.

Neither defendant’s asserted belief that his plea would end all criminal exposure stemming from his conduct nor the fact that Shambeau’s death was reasonably foreseeable at the time of plea can prevent as a matter of double jeopardy a subsequent prosecution for murder in the second degree. New York does not adhere to a subjective double jeopardy rule. While defendant points to other jurisdictions which, in similar situations, have barred subsequent prosecution for homicide, those decisions have not rested on double jeopardy grounds. In the cases cited by defendant, it was established that at the time of plea both the defendant and the prosecution intended the plea to close the matter forever. Subsequent prosecution therefore breached promises implied in the original plea agreement, mandating specific performance of the original plea agreement (see, e.g., State v Carpenter, 68 Ohio St 3d 59, 623 NE2d 66; State v Nelson, 23 Conn App 215, 579 A2d 1104; State v Thomas, 61 NJ 314, 294 A2d 57). That is not the case before us.

Defendant’s remaining contentions are either unpreserved or without merit. Accordingly, the order of the Appellate Division should be affirmed.

Judges Simons, Bellacosa, Smith and Ciparick concur; Judges Titone and Levine taking no part.

Order affirmed.

      . The common-law "year-and-a-day” limitation on homicide prosecutions was long ago abandoned in New York (see, People v Brengard, 265 NY 100, 105). That rule, which barred prosecution for homicide if the victim died more than a "year and a day” after the injuries were inflicted, was fundamentally a rule of causation, necessary because medical knowledge was insufficiently advanced to determine, after such a lapse of time, whether death was the result of the defendant’s actions or some other misfortune (1 LaFave and Scott, Substantive Criminal Law § 3.12 [i], at 421).

      . There may be examples of attempted murder which do not result in physical injury, such as where a bomb is planted but fails to detonate.

      . In any event, the Court in Grady explicitly noted that an exception to this prohibition would exist where the State is unable to proceed on the more serious charge at the outset " 'because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.’ ” (Grady, 495 US 508, 516, n 7, supra, quoting Brown v Ohio, 432 US 161, 169, n 7.)


source: Caselaw Access Project

author: Bellacosa, J.

license: Public Domain

text:
    [631 NE2d 86, 609 NYS2d 144]
    In the Matter of 1605 Book Center, Inc., Appellant, v Tax Appeals Tribunal of State of New York et al., Respondents.
    Argued January 11, 1994;
    decided February 15, 1994

      POINTS OF COUNSEL

      Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, New York City (Herald Price Fahringer and Diarmuid White of counsel), for appellant.
    I. Since depositing coins in a coin-operated film or live show device does not constitute an "admission charge” to a place "where any facilities for entertainment, amusement or sports are provided,” the proceeds from such machines are not subject to a sales tax under section 1105 (f) (1). (Matter of American Cyanamid & Chem. Corp. v Joseph, 308 NY 259; American Locker Co. v City of New York, 308 NY 264; Gould v Gould, 245 US 151; Matter of Good Humor Corp. v McGoldrick, 289 NY 452; Matter of SIN, Inc. v Department of Fin., 126 AD2d 339, 71 NY2d 616; Matter of Mobil Oil Corp. v Finance Adm’r of City of N. Y., 58 NY2d 95; Matter of American Cablevision v Jacobs, 101 AD2d 65; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Richards v United States, 369 US 1; Netherlands Shipmortgage Corp. v Madias, 717 F2d 731.) II. This sales tax assessment is being selectively enforced against petitioner because of the nature of its business. (Black Jack Distribs. v Beame, 433 F Supp 1297; Star Distribs. v Hogan, 337 F Supp 1362; Jolar Cinema v Walsh, 56 AD2d 756; Show-World Ctr. v Walsh, 438 F Supp 642; Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d 686; Oyler v Boles, 368 US 448; Two Guys v McGinley, 366 US 582; Yick Wo v Hopkins, 118 US 356; People v Acme Mkts., 37 NY2d 326; People v Goodman, 31 NY2d 262.) III. If the Court should, by some chance, conclude that coins deposited in coin-operated amusement devices are somehow subject to a sales tax, then the new decision should not be applied retroactively. (Chevron Oil Co. v Huson, 404 US 97; Gager v White, 53 NY2d 475; Matter of Howard Johnson Co. v State Tax Commn., 65 NY2d 726; New York State Cable Tel. Assn. v State Tax Commn., 59 AD2d 81.)

      G. Oliver Koppell, Attorney-General, Albany (John McConnell, Jerry Boone and Peter H. Schiff of counsel), for Commissioner of Taxation and Finance of the State of New York, respondent.
    I. The Court below rightly held that booth fees for viewing live peep shows and private peep shows were admission charges to a place of amusement taxable under Tax Law § 1105 (f) (1). (City of Binghamton v Regan, 114 AD2d 551; People v Floyd J., 61 NY2d 895; Regan v Heimbach, 91 AD2d 71, 58 NY2d 610; Bathrick Enters. v Murphy, 27 AD2d 215, 23 NY2d 664; Fairland Amusements v State Tax Commn., 110 AD2d 952, 66 NY2d 932; Matter of United Artists Theatre Circuit v State Tax Commn., 52 NY2d 1013; Outdoor Amusement Bus. Assn. v State Tax Commn., 44 AD2d 950, 57 NY2d 790; Matter of Hospital Tel. Sys. v New York State Tax Commn., 44 AD2d 271, 36 NY2d 746.) II. The Court below properly held that petitioner failed to show selective enforcement of the tax laws against it. (Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d 686.) III. Petitioner has failed to preserve his claim that the decision in this matter should be applied only prospectively; in any event, that claim is merit-less. (Matter of State of New York v Avco Fin. Serv., 50 NY2d 383; City of New York v State of New York, 39 NY2d 951; Chevron Oil Co. v Huson, 404 US 97.)
   OPINION OF THE COURT

Bellacosa, J.

Article 28 of the Tax Law requires a sales tax to be paid on "[a]ny admission charge” for use of "any place of amusement”. The issue is whether Tax Law § 1105 (f) (1) permits the State taxing authority to collect a sales tax on receipts derived from patrons depositing coins in peep show booths to view or converse with live entertainers. We granted leave to appeal and agree with the Appellate Division that the gross receipts for admission to this place of amusement are taxable.

During the tax period at issue, appellant 1605 Book Center, Inc., conducted a business in New York City’s Times Square area. It sold sexually oriented books and magazines, operated a motion picture theater, and provided live peep show booths on its premises for patrons to enter and activate by the deposit of a coin.

In July 1980, following an audit, the State Division of Taxation issued a notice of determination and demand for payment of sales and use taxes due for the period March 1, 1976 through August 31, 1979, assessing tax due of $141,686.11 plus interest. The audit report indicated that four categories of sales were included in the audit, including those for sales taxes on two types of live peep shows. The first included those available by coin-operated machines, in private booths that surrounded a stage on which nude or partially nude females performed. The other venue, known as the "fantasy booth,” also functioned with a coin deposited in a private booth, allowing a patron to converse with a scantily dressed woman. In both booths, the patron was separated from the performer by a glass partition which was covered by a curtain or screen. The curtain parted for a set time only after the patron deposited a coin into the machine.

Petitioner challenged the tax assessment. Following a hearing, an Administrative Law Judge granted the petition in part, but, as pertinent to this proceeding, found that revenues derived from the live peep shows and fantasy booths were subject to sales and use taxes under Tax Law § 1105 (f) (1). On appeal, the Tax Appeals Tribunal denied appellant’s exemption relating to the imposition of a sales tax on live peep shows, affirmed the Administrative Law Judge’s modification of the original notice of determination, and rejected appellant’s claim that it had been subjected to selective enforcement.

Petitioner commenced this CPLR article 78 proceeding to annul the determination, asserting that this case represents an unwarranted extension of Tax Law § 1105 (f) (1). The Appellate Division confirmed the determination and dismissed the petition (Matter of 1605 Book Ctr. v Tax Appeals Tribunal, 188 AD2d 694). We now affirm.

Tax Law § 1105 (f) (1) provides, in pertinent part, that a sales tax should apply to "fajny admission charge where such admission charge is in excess of ten cents to or for the use of any place of amusement in the state” (emphasis added). Section 1105 (f) (1) specifically excludes from the sales tax, admission charges

"to race tracks, boxing, sparring or wrestling matches or exhibitions which charges are taxed under any other law of this state, or dramatic or musical arts performances, or motion picture theaters, and except charges to a patron for admission to, or use of, facilities for sporting activities in which such patron is to be a participant, such as bowling alleys and swimming pools.”

The term "place of amusement” is defined by Tax Law § 1101 (d) (10) as "[a]ny place where any facilities for entertainment, amusement, or sports are provided”, which includes without limitation a "theatre of any kind, concert hall, opera house, or other place where a performance is given” (20 NYCRR 527.10 [b] [3] [i]). The term "admission charge” is defined in Tax Law § 1101 (d) (2) as "[t]he amount paid for admission, including any service charge and any charge for entertainment or amusement or for the use of facilities therefor”. Appellant insists that the booths are not places of amusement but devices such as jukeboxes and video games. The question devolves to one of pure statutory interpretation and analysis, determinable only on accurate apprehension of legislative expression and intent.

What, then, is the expressed and intended scope of Tax Law § 1105 (f) (1)? The Court’s cardinal function in interpreting any statute should be to " 'attempt to effectuate the intent of the Legislature, and where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used’ ” (Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 674-675, quoting Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208). Thus, the "resort to extrinsic matter is inappropriate when the statutory language is unambiguous and the meaning unequivocal” (Sega v State of New York, 60 NY2d 183, 191). When, however, due to nuances and variations of human language, reasonable minds differ as to the perceived meaning of the words used, the Court resorts to rules of construction and interpretation of the enactment with reference to the objectives sought to be achieved and the contextual spirit and purpose of its enactment (see, Matter of Petterson v Daystrom Corp., 17 NY2d 32, 38).

Ambiguity in tax statutes should, of course, "be construed in favor of the taxpayer and against the taxing authority, and the burdens they impose are not to be extended by implication” (Matter of American Cyanamid & Chem. Corp. v Joseph, 308 NY 259, 263; Quotron Sys. v Gallman, 39 NY2d 428, 431). Correspondingly, tax statutes should be construed to insure the collection of all designated taxes where a supportable theory can be found (see, County of Nassau v Lincer, 254 App Div 760, affd 280 NY 662; see also, McKinney’s Cons Laws of NY, Book 1, Statutes § 313). As often happens, generalities of construction axioms neutralize one another, and courts inevitably return to the precise language of the enactment in an effort to give a correct, fair and practical construction that properly accords with the discernible intention and expression of the Legislature (3A Sutherland, Statutory Construction § 66.01, at 11 [Singer 4th ed]).

Once again, we note that the critical words here are "admission charge” and "place of amusement.” These terms are expansively defined and unqualifiedly intoned, and Tax Law § 1101 does not limit their sweep in the way appellant urges. Thus, without resorting to extrinsic materials, the Legislature’s plain expression captures appellant’s admission receipts derived from this form of amusement in these places.

The facts are uncontroverted that the mechanics for utilizing the live peep shows and fantasy booth are essentially the same. The patron enters a place, the booth, with a door that closes behind the patron. After entering the booth, the patron could place coins in a slot which raises a screen or curtain and enables the patron to view a live performance or converse with a scantily clad performer. A light illuminated outside the booth indicates the booth is in use. The booth provides the patron with privacy, screens out noise and light, and ensures that each patron pays a separate admission fee. The length of amusement time is controlled exclusively by the number of coins deposited by the patron in the mechanical slot which controls movement and placement of the screen or curtain. The booth thus qualifies as a place of amusement and the coin deposit qualifies as an admission charge within the contemplation and embrace of the taxing statute.

Notably, there can be no doubt that the sales tax would apply if patrons viewed the same live performance in the company of other audience members in a theater (see, 20 NYCRR 527.10 [b] [3]). The booths are factually not taxably distinguishable from a usual theater except for the element of privacy. Accordingly, the fee paid is an admission charge to a place where entertainment is provided. That the charge is collected after the patron enters the booth by means of a coin-operated device is not of determinative legal significance.

Although resort to statutory rules of construction is unnecessary in view of our plain language analysis of the statute, we discern additional support for the taxing authority’s position in that complementary approach as well. Section 1105 (f) (1) excludes certain admission charges to specific places of amusement from the broad scope of the taxing statute. Live peep show booths and fantasy booths are not exempted. Thus, the interpretative maxim, the expression of one is the exclusion of others, supports the conclusion that what was omitted from the exemptions was not intended to be excluded from the otherwise comprehensive taxable sweep of section 1105 (f) (1) (see, Golden v Koch, 49 NY2d 690; see also, McKinney’s Cons Laws of NY, Book 1, Statutes § 240).

Fairland Amusements v State Tax Commn. (66 NY2d 932) does not support a contrary result. The situation in Fairland is distinguishable because no comparable threshold ambiguity exists in the present case and that case does not erect a general threshold ambiguity around the phrase "place of amusement”. Moreover, the nature of the entertainment at issue — privately viewing or speaking with live performers for sexual amusement — is not comparable to the use of mechanical devices, such as amusement rides. At bottom, appellant’s building, booths and physical spaces are not at all like fairgrounds.

It is also clear that the live peep shows differ from mechanical "devices for amusement” in that the entertainment places at issue here involve the viewing and interacting with a live performer, which presents a spontaneous, human feature not found in coin operated electronic solo entertainment devices. In essence, these commercial transactions reflect the collection of an admission charge for paying customers to be amused by live sex shows and "fantasy” experiences. To treat the charge as one imposed for the use of a "device for amusement,” as appellant suggests, would contradict the core reality of these human exchanges and taxable transactions (contrast, Bathrick Enters. v Murphy, 27 AD2d 215, affd 23 NY2d 664).

Appellant’s further reliance on a string of additional cases is also misplaced (see, Outdoor Amusement Bus. Assn. v State Tax Commn., 84 AD2d 950, revd on dissenting mem below 57 NY2d 790; Matter of United Artists Theatre Circuit v State Tax Commn., 52 NY2d 1013; Matter of Hospital Tel. Sys. v New York State Tax Commn., 36 NY2d 746, affg 44 AD2d 271). Each of those cases presented situations factually and significantly distinct from this one. Thus, they do not support the view that the sales tax at issue was invalidly imposed.

Finally, we reject appellant’s argument that the Department’s tax treatment of booths in which films are activated by a mechanical device is inconsistent with its treatment of live peep show booths. As the concurring Justice at the Appellate Division correctly observed, the two transactions are sufficiently distinguishable to allow differential tax treatment that may not be judicially countermanded (Matter of 1605 Book Ctr. v Tax Appeals Tribunal, 188 AD2d 694, 697, supra [Levine, J., concurring]).

We have considered appellant’s other arguments and conclude that they are without merit or unpreserved.

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

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

Judgment affirmed, with costs.


text:
    [631 NE2d 90, 609 NYS2d 148]
    Mary Beth O. Ruotolo, as Administratrix of the Estate of Thomas Ruotolo, Deceased, et al., Respondents, v State of New York, Appellant.
    (Claim No. 70726.)
    Argued January 5, 1994;
    decided February 17, 1994

      POINTS OF COUNSEL

      G. Oliver Koppell, Attorney-General, Albany (Michael S. Buskus, Jerry Boone and Peter H. Schiff of counsel), for appellant.
    I. The Court below erred in stating that the decision in Ruotolo "I” was not a final decision. (Collins v Bertram Yacht Corp., 42 NY2d 1033; People ex rel. H. D. H. Realty Corp. v Murphy, 194 App Div 530, 230 NY 654; Becker v Huss Co., 43 NY2d 527; Matter of Cauldwell, 156 App Div 661, 209 NY 538.) II. The Legislature did not intend to give retroactive application to the amendments to General Municipal Law § 205-e (L 1990, ch 762; L 1992, ch 474) with respect to claimants who had litigated claims to final judgment before the amendments were enacted. (Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293, 368 US 12; Ashwander v Valley Auth., 297 US 288; Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, cert denied sub nom. Estwing Mfg. Co. v Singer, 382 US 905; Simonson v International Bank, 14 NY2d 281; Sugarman v Bryks, 145 Misc 2d 453; Feiber Realty Corp. v Abel, 265 NY 94.) III. If the amendments to General Municipal Law § 205-e were intended to retroactively revive claims previously litigated to final disposition, they are unconstitutional as applied, as (1) in contravention of the State constitutional prohibition of gifts or loans of public money; and/or (2) contrary to the prohibition against the audit, allowance, or payment of time-barred claims. (Matter of Chrysler Props, v Morris, 23 NY2d 515; Matter of Greene v County of Niagara, 55 App Div 475, 166 NY 485; Roberts v State of New York, 30 App Div 106, 160 NY 217; People ex rel. Dady v Prendergast, 144 App Div 308, 203 NY 1; Wrought Iron Bridge Co. v Town of Attica, 119 NY 204; Munroe v State of New York, 223 NY 208; Babcock v State of New York, 190 App Div 147, 231 NY 560; Lewis v State of New York, 96 NY 71; People ex rel. Swift v Luce, 204 NY 478; Farrington v State of New York, 248 NY 112.)

      Lysaght, Lysaght & Kramer, P. G, Lake Success (Joseph L. Decolator, Denis J. Jean and Raymond E. Kerno of counsel), for respondents.
    I. The Court below properly found that by the retroactivity provision of the amendments to General Municipal Law § 205-e (L 1990, ch 762; L 1992, ch 474), the Legislature intended to revive claims dismissed pursuant to this Court’s decision in Santangelo v State of New York (71 NY2d 393 [1988]), irrespective of whether such claims were litigated to a final judgment. (Prego v City of New York, 147 AD2d 165; Matter of State of New York [Abrams] v Ford Motor Co., 74 NY2d 495; Matter of Butler v New York City Health & Hosps. Corp., 82 AD2d 136; Zachary v Macy & Co., 39 AD2d 116; Sega v State of New York, 60 NY2d 183; Matter of Pokoik v Department of Health Servs., 72 NY2d 708; Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293, 368 US 12; Matter of Bosh v Fahey, 53 NY2d 896; Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, cert denied sub nom. Estwing Mfg. Co. v Singer, 382 US 905.) II. The Court below properly held that the dismissal of respondents’ common-law negligence action in Ruotolo "I” did not extinguish respondents’ right to prosecute a claim under the remedial provisions of General Municipal Law § 205-e. (Santangelo v State of New York, 71 NY2d 393; Collins v Bertram Yacht Corp., 42 NY2d 1033; Jacobus v Colgate, 217 NY 235; Oswego & Syracuse R. R. Co. v State of New York, 226 NY 351; Ruotolo v State of New York, 141 Misc 2d 111, 157 AD2d 452, 75 NY2d 710, 76 NY2d 773; Kenevan v City of New York, 70 NY2d 558; Reiseberg v State of New York, 40 Misc 2d 676; Matter of Mullane v McKenzie, 269 NY 369; Carroll v Roman Catholic Diocese, 44 Misc 2d 832, 26 AD2d 522, 18 NY2d 708, 19 NY2d 658; Johnson v Riggio Realty Corp., 153 AD2d 485, 74 NY2d 945.) III. The Court below properly found that the retroactivity amendments to General Municipal Law § 205-e (L 1990, ch 762; L 1992, ch 474) were constitutional, as applied, since such an application did not contravene (a) the State constitutional prohibition against the gift or loan of State money (NY Const, art VII, § 8); (b) the audit and allowance of a time-barred claim (NY Const, art VIII, § 19). (Matter of Chrysler Props. v Morris, 23 NY2d 515; Matter of Greene v County of Niagara, 55 App Div 475, 166 NY 485; Roberts v State of New York, 30 App Div 106, 160 NY 217; Jackson v State of New York, 261 NY 134; Sweeney v State of New York, 251 NY 417; Santangelo v State of New York, 149 Misc 2d 171, 193 AD2d 25; Germania Sav. Bank v Village of Suspension Bridge, 159 NY 362.) IV. The Court below properly found that the retroactivity amendments to General Municipal Law § 205-e (L 1990, ch 762; L 1992, ch 474) were constitutional, as applied, since the amendments advanced a strong public interest. (Matter of Hodes v Axelrod, 70 NY2d 364; Hymowitz v Lilly & Co., 136 Misc 2d 482, 139 AD2d 437, 140 AD2d 1013, 73 NY2d 487; Nettleton Co. v Diamond, 27 NY2d 182; Goldstein v State of New York, 281 NY 369; Matter of Mullane v McKenzie, 269 NY 369; Munro v State of New York, 223 NY 208; Straus & Co. v Canadian Pac. Ry. Co., 254 NY 407; Cook v City of Binghamton, 48 NY2d 323; Kenevan v City of New York, 70 NY2d 558; McGee v Adams Paper & Twine Co., 26 AD2d 186, 20 NY2d 921.)
   OPINION OF THE COURT

Bellacosa, J.

Ten years ago, New York City Police Officer Thomas Ruotolo was killed in the line of duty by a parolee. The officer’s widow and two other officers wounded in the incident have tried to sue the State for negligence. The claims rest on allegations that the State Parole Board wrongfully allowed the assailant to remain on parole. The first series of this litigation ended with the claims ruled out of court (Ruotolo v State of New York, 141 Misc 2d 111, affd 157 AD2d 452, lv denied 75 NY2d 710, rearg denied 76 NY2d 773).

The Legislature, in enactments reactive to the court rulings, persisted in trying to allow the claims to be heard in the Court of Claims. The State challenges the authority and power of the Legislature to enact chapter 474 of the Laws of 1992, which purports to allow the claims pursuant to General Municipal Law § 205-e to be pressed retroactively by the persevering widow and the other two officers.

When this Court entered its order denying leave to appeal in the first round of litigation, the Legislature did not become forever barred from exercising its substantial powers, including that of surrendering some of the State’s own vested rights with respect to the matter. To be sure, that power is not absolute and is constitutionally circumscribed. But when the Legislature finds and demonstrates, as it did here, that there is an adequate moral obligation as the basis for retroactively remedying the particular restrictions of General Municipal Law § 205-e, which otherwise barred the statutory claims advanced by claimants Mary Beth Ruotolo, Tanya Brathwaite and Hipólito Padilla in this matter, the Legislature’s power and exercise of that public policy choice should not be nullified by the courts.

We agree with the Appellate Division that the claims should go forward in the Court of Claims, as the Legislature has prescribed, and that they should be resolved on their merits, and thus affirm the order of the Appellate Division and answer its certified question in the affirmative.

L

In the early evening of February 14, 1984, New York City Police Officer Thomas Ruotolo, and his partner, Officer Tanya Brathwaite, responded to a radio report that there had been a robbery of a moped at a gas station in the Bronx. As the officers alighted from their patrol car, George Agosto, standing next to a moped, immediately opened fire on the officers with a handgun, killing Officer Ruotolo and seriously wounding Officer Brathwaite. Off-duty Police Officer Hipólito Padilla, who tried to assist, was also seriously wounded in an exchange of shots with Agosto. The assailant was ultimately arrested after also being wounded.

At the time, Agosto was on parole from a manslaughter conviction. He had been released in 1982, but was arrested on January 30, 1983 on charges of possession of a handgun and driving without a license. This arrest was reported to the Parole Board, but the charges were ultimately dismissed and Agosto was released. On July 5, 1983, Agosto was again arrested on charges of burglary and resisting arrest. The Division of Parole was notified. On August 4, 1983, Agosto was sentenced to four months in jail on a reduced charge of criminal mischief and he was released from Rikers Island on September 21, 1983. Although the police, prosecutor, court and parole authorities were aware of this arrest and conviction, and even though Agosto was considered an absconder after it was discovered he had vacated his last known address, none of this information was reported by the parole office to the Parole Board. No parole violation warrant was ever issued against him prior to the shooting of the police officers in February 1984.

IL

The claimants, Ruotolo’s widow, Mary Beth Ruotolo, and wounded Officers Hipólito Padilla and Tanya Brathwaite, sued in the Court of Claims on March 25, 1985, naming the State of New York as the sole defendant. Their theory was that had the Parole Board been properly notified, it would have had to revoke Agosto’s parole and he would not have been free to inflict the tragic harms he did. The claims were rooted in common-law negligence and negligence based on the alleged violation of the Executive Law § 259-i (3) and 9 NYCRR 8004.2.

The Court of Claims in 1988 granted summary judgment to the State. It ruled that pursuant to Santangelo v State of New York (127 AD2d 647, affd 71 NY2d 393 [Santangelo "I"]) and the "Firefighter’s Rule” which Santangelo "I” had extended to the police, the claims for common-law negligence were barred by public policy because the injuries were sustained as part of the officers’ inherently hazardous employment. Further, even viewing defendant’s alleged failure to revoke Agosto’s parole as a failure to enforce the Executive Law and 9 NYCRR 8004.2, claimants failed to state a claim because neither Executive Law § 259-i (3) nor 9 NYCRR 8004.2 created an independent duty in favor of the claimants which could support liability and circumvent Santangelo’s bar (Ruotolo ”I” v State of New York, 141 Misc 2d 111, supra).

On July 12, 1989 and during claimants’ appeal, the Legislature enacted section 205-e of the General Municipal Law, creating a claim for police officers injured in the line of duty. Pursuant to the amendment, police officers or their estate representatives had a right to recover for injuries which occurred directly or indirectly as a result of any neglect, omission, willful or culpable negligence by any person under the requirements of any applicable statute, order, or requirements of Federal, State, or county law (see, General Municipal Law § 205-e [L 1989, ch 346]). General Municipal Law § 205-e was enacted to bring police officers into parity with firefighters (L 1989, ch 346; see, Mem of Senator Skelos, 1989 NY Legis Ann, at 180), who were granted recovery rights against property owners whose negligence with respect to fire code violations caused injury (see, General Municipal Law § 205-a [L 1935, ch 800, § 2]).

The Appellate Division nevertheless affirmed the dismissal of the original claims by the Court of Claims. The Appellate Division held the new General Municipal Law § 205-e inapplicable, since it was not intended to be retroactively applied (Ruotolo "I” v State of New York, 157 AD2d 452, supra). This Court denied leave on April 26, 1990, and further rejected a motion for reargument in June of 1990 (Ruotolo "I” v State of New York, lv denied 75 NY2d 710, rearg denied 76 NY2d 773, supra).

The Legislature thereafter amended General Municipal Law § 205-e’s enacting legislation (L 1989, ch 346) to include a new effective date, which expressed that the remedy should be applied retroactively to revive actions dismissed on or after January 1, 1987 (L 1990, ch 762). Claimants promptly moved for reargument in the Court of Claims. That relief was denied on July 31, 1991, on the ground that while General Municipal Law § 205-e was retroactively applicable, it still was not applicable here, because section 205-e only " 'impose[s] clear duties on property owners and [is] intended to benefit firefighters, police officers and any other person who may enter upon premises subject to regulation’ ” (Ruotolo "II” v State of New York, 151 Misc 2d 820, 828 [quoting Mem of State Executive Dept, 1989 McKinney’s Session Laws of NY, at 2141 (emphasis added)], revd 187 AD2d 160).

The Legislature, for a third time, amended General Municipal Law § 205-e, again during the pendency of appeal. This time, it provided a right of action to police officers injured in the line of duty, irrespective of whether they were injured as a consequence. of a statutory violation respecting the safe maintenance and control of premises (L 1992, ch 474). It is that precise statute that is now under review on this appeal.

The Appellate Division concluded that there was no impediment, under the circumstances presented here, to the Legislature providing a procedural remedy for these claims to be pursued in the Court of Claims. That Court noted that the State, acting through the Legislature in this specific regard, had found and recited a moral obligation that extended to the protection of the police officers acting in the line of duty that justified granting the reasonable procedural redress and access to the judicial process with respect to an alleged failure by the State to fulfill its obligations to those officers and their families. The Appellate Division thus reversed the Court of Claims, granted claimants’ reargument motion and denied the State’s dismissal motion for summary judgment. It noted that "[t]he Legislature could not have been more specific,” and held that the Legislature had effectively clarified General Municipal Law § 205-e to allow the claimants’ right to sue, and remanded the matter to the Court of Claims (Ruotolo "II” v State of New York, 187 AD2d 160, 170, supra; see also, Santangelo "II” v State of New York, 149 Misc 2d 171, revd 193 AD2d 25).

The threshold question of this appeal is whether the claims under General Municipal Law § 205-e had been finally determined in the original litigation in this case. If final, the Court must proceed to the question whether the Legislature’s retroactive rendering of General Municipal Law § 205-e, affecting the claims at bar, violates the prohibition against the State making a gift or loan of State money (NY Const, art VII, § 8) or the provision concerning the audit and allowance of a time-barred claim (NY Const, art III, § 19).

IIL

A Court of Appeals denial of leave to appeal from an order of the Appellate Division affirming a grant by the Court of Claims of defendant’s motion to dismiss by summary judgment is a final determination (Collins v Bertram Yacht Corp., 42 NY2d 1033, 1034). Initially, therefore, we reject claimants’ nonfinality theory that the amendments of General Municipal Law § 205-e created an entirely new claim that did not exist and that could, therefore, not have been dismissed during the time Ruotolo ”1” was being considered and decided. The interrelationship of common-law and statutory claims and labels in this rare combination of circumstances and on-going developments distinguishes this matter from the analytical framework and principle of Matter of Hodes v Axelrod (70 NY2d 364; see also, Matter of Meegan S. v Donald T., 64 NY2d 751) for finality purposes. If, of course, the first round of litigation did not finally determine the core issue, the State would, on that basis alone, lose this case because, in that event, the Legislature would not be even arguably prohibited from redressing the wrong it perceived in this travesty.

However, we construe and deem Ruotolo "I” to be a final determination which created some vested rights in the State with respect to the matter at issue. Nevertheless, the Appellate Division, on the distinctive and intermixed circumstances of this case, correctly observed that:

"Although the original 1989 version of section 205-e had already been enacted and was before us, we merely held that it could not be retroactively applied pursuant to the general rule that statutes are to be construed as prospective only in the absence of an unequivocal expression of a legislative intent to the contrary * * *. As a result, we did not reach the question of the statute’s applicability to this case” (Ruotolo ”II” v State of New York, 187 AD2d 160, 167-168, supra [emphasis added]).

General Municipal Law § 205-e allowed for an existing cause of action which the Ruotolo ”1” courts found to be not available in the circumstances of and at that time. Therefore, the claim was not extinguished and was ripe for express reopener by way of judicial determination under the ensuing legislation at chapter 762 of the Laws of 1990, which would allow judicial resolution of the claims. It purposefully clarified the original intent of the Legislature to make General Municipal Law § 205-e retroactive.

Thus, the defendant State cannot plausibly maintain that the Legislature did not intend to give retroactive application to the remedies provided for in General Municipal Law § 205-e with respect to claimants who had litigated claims to final judgment before the amendments were enacted. All the evidence, plain language and actions of the Legislature and Governor in signing the bills into law are to the contrary. Thus, general bromides of statutory construction about retro-activity (see, e.g., McKinney’s Cons Laws of NY, Book 1, Statutes § 53) collapse under the weight of determined expressions and actions of the Legislature (see, L 1990, ch 762; Mem of State Executive Dept, 1990 McKinney’s Session Laws of NY, at 2494-2495; Governor’s Mem, 1990 McKinney’s Session Laws of NY, at 2746 [new legislation in direct response to the courts’ failure to apply section 205-e retroactively in Ruotolo "I” and Santangelo "I”]; see also, Ruotolo ”II”, 187 AD2d 160, supra; Santangelo ”II” v State of New York, 149 Misc 2d 171, revd 193 AD2d 25, supra; L 1990, ch 762; L 1992, ch 474; see also, Budget Report on Bills, Bill Jacket, L 1990, ch 762 ["Arguments in Support: * * * b) * * * this bill would effectuate the remedial intent of the 1989 legislation inasmuch as it would permit resolution of cases pending in 1989 * * * which contributed to the need for the extension of the 'fire(fighter’s) rule’ to police officers. The courts have differed in their interpretation of the retroactivity of the 1989 legislation, and this bill would clarify legislative intent.”]).

Since we conclude that the Legislature expressed itself most emphatically and plainly, and that it was not circumscribed by finality strictures in this case, we must turn next to the critical issue as to whether there are other limitations on its substantial power to enact legislation.

IV.

A primary line of argument by the State is that even if the amendments to General Municipal Law § 205-e were intended to retroactively revive claims previously litigated with finality, the State constitutional prohibition against giving gifts or loans was violated.

The New York Constitution specifically forbids the gift or loan of property to a specific individual (NY Const, art VII, § 8 ["The money of the state shall not be given or loaned to or in aid of any * * * private undertaking * * * or in aid of any individual”]). When the Legislature demonstrates that an enactment challenged under this provision was both in response to a moral obligation of the State and does not undermine previously vested rights, the courts will not interfere with the exertion (Matter of Evans v Berry, 262 NY 61; People ex rel. Central Trust Co. v Prendergast, 202 NY 188). We have said that the Legislature may use public moneys to remedy an injustice in cases even when no legal obligation to pay existed, as long as some higher obligation of honor, fairness or broad public responsibility is identified (Matter of Mullane v McKenzie, 269 NY 369, 376). Stated differently, it must affirmatively appear that not to act would condone a travesty of justice. With respect to claims previously litigated even to a final judgment on the merits, a "moral obligation” has been found sufficient to revive a State claim and may, by analogy, be used to overturn a final judgment in the State’s favor (Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, cert denied sub nom. Estwing Mfg. Co. v Singer, 382 US 905; Gallewski v Hentz & Co., 301 NY 164; Farrington v State of New York, 248 NY 112, 115).

The moral obligation analysis generally involves a case-by-case examination. Here, the moral obligation issue is intertwined with whether the retrospective legislation is compensating a claimant by benefit rendered at the request of the State itself, and whether the claimant is pursuing a remedy for a wrong peculiarly attributable to the State as the responsible agent.

"The principle that claims, supported by a moral obligation and founded in justice, where the power exists to create them, but the proper statutory proceedings are not strictly pursued, or for any reason are informal and defective, may be legalized by the legislature and enforced either against the state itself or any of its political divisions through the judicial tribunals, is, we think, now well settled” (Wrought Iron Bridge Co. v Town of Attica, 119 NY 204, 211).

If the waiver of immunity from liability imposed by the Legislature rests on an adequate moral obligation, then the bypass does not offend the no-gift prohibition. In Farrington v State of New York (248 NY 112, supra), this Court identified some areas in which a moral obligation may exist:

"Instances in which enactments, authorizing the allowance of private claims, have been held to be constitutional, since it might reasonably be said that the sanctioned claims involved moral obligations, have been subject to classification under two heads. * * * The second are claims involving injuries and damages wrongfully inflicted upon individuals by those in the State service or others for whose acts the State might justly be regarded as responsible” (id., at 116; see also, Ausable Chasm Co. v State of New York, 266 NY 326, 330, 331).

In the search for that moral obligation justification for an otherwise presumptively constitutional enactment, courts naturally look to the expression and history of the particular legislation itself. In this case, we find the Legislature offering this preamble:

"Section 1. Legislative intent. The legislature finds that the nature of modern police work in this state has exposed our police officers to a unprecedented risk of death and physical injury. In view of this fact, chapter 346 of the laws of 1989 gave injured officers and representatives of deceased officers a right of action against individuals found liable for such deaths or injuries” (L 1992, ch 474; see also, Letter of Senator Skelos as Sponsor, Bill Jacket, L 1992, ch 474).

Further supporting our view that the Legislature illustrated a moral obligation is the fact that the revival of these claims allowed by the Appellate Division pursuant to General Municipal Law § 205-e did not grant judgment or bestow a direct, tangible gift of any forbidden State property. The claimants are allowed a lower order of entitlement — an opportunity to prove that the State was negligent in a special context and in recognition of a moral obligation (see, Farrington v State of New York, 248 NY 112, 115, supra). That is not what the constitutional prohibition was designed to bar. It is, in a governmental sense, admirable that the law-enacting branches of government of the State have persevered so diligently to satisfy a perceived moral obligation to citizens for harms inflicted on them within a narrow constitutionally permissible framework.

Next, the Appellate Division properly found that the retroactive effect granted under General Municipal Law § 205-e did not violate the constitutional prohibition against "the audit and allowance of a time-barred claim” (NY Const, art III, § 19; Jackson v State of New York, 261 NY 134, 139; see also, Reiseberg v State of New York, 40 Misc 2d 676, 678).

Indeed, the State has also advanced the argument that a violation of due process as against its own interests occurred by the Legislature, in effect, overriding the State’s own vested rights. This has an ironical and anomalous ring to it, since the Attorney-General is under a paramount duty to defend legislative action in enacting statutes (Executive Law § 71; see also, Jackson v State of New York, supra; Sweeney v State of New York, 251 NY 417). In the latter cases, the Attorney-General, as is done here, contended that the retroactive application of laws would be violative of due process somehow owed to the State with respect to which it had somehow deprived itself. This Court rejected that inherent contradiction by stating: "[c]ertain it is that the State which enacted it may not be heard to complain that the enactment is void as a violation of 'due process’ ” (Sweeney v State of New York, 251 NY, at 419-420, supra; see also, Jackson v State of New York, 261 NY, at 139, supra).

V.

We note, finally, that by allowing the claims to proceed, though previously not having recognized that procedural opportunity for redress, the State is by no means impliedly or expressly confessing judgment on ultimate liability. The State’s rights to defend itself on the merits of the claims is intact and plenary (compare, Matter of Greene v County of Niagara, 166 NY 485, 494 [where judgment not on the merits, the Legislature may, in order that justice will prevail, direct its reexamination and determination]). In essence, the demonstration of a moral obligation allows the Legislature to legitimately and openly avoid the no-gift prohibition and to rectify a potentially egregious miscarriage of justice, through remedial legislation. That statutory outlet does not condone any prohibited gift or loan (see, Matter of Mullane v McKenzie, 269 NY 369, supra; see also, Goldstein v State of New York, 175 Misc 114), and our holding does not approve of any forbidden practice. The opportunity to have a day in court is at stake and resolved, and we hold simply that the Legislature is not constitutionally prohibited from providing that avenue of potential redress.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

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

Order affirmed, etc.


author: Levine, J.

text:
    [631 NE2d 97, 609 NYS2d 155]
    The People of the State of New York, Respondent, v Jay Weinberg, Appellant.
    Argued February 9, 1994;
    decided March 17, 1994

      POINTS OF COUNSEL

      Kevin Casey and Philip L. Weinstein, New York City, for appellant.
    I. It was improper to charge appellant under Tax Law § 1802 with repeated failure to file tax returns for the years 1983, 1984 and 1985, since the statute did not become effective until November 1, 1985, and there was no clear legislative intent to apply it retroactively; and retroactive application of Tax Law § 1802, under these circumstances, unfairly punishes appellant for events which occurred prior to the enactment of the statute in violation of the prohibition against ex post facto laws. (People v Allen, 136 Misc 2d 963; People v Behlog, 74 NY2d 237; People v Oliver, 1 NY2d 152; Matter of Mulligan v Murphy, 14 NY2d 223; Vuitton v Spencer Handbags Corp., 765 F2d 966; People v Sailor, 65 NY2d 224; People v Morse, 62 NY2d 205; United States v Tharp, 892 F2d 691; Weaver v Graham, 450 US 24; Calder v Bull, 3 Dallas [3 US] 386.) II. The court deprived appellant of due process by delivering, over defense objection, supplemental legal instructions that unfairly favored the prosecution’s theory of the case, especially where there had been no request from the deliberating jurors for additional guidance. (People v De Jesus, 42 NY2d 519; People v Williamson, 40 NY2d 1073; Bollenbach v United States, 326 US 607; People v Ciaccio, 47 NY2d 431; Arroyo v Jones, 685 F2d 35; People v Malloy, 55 NY2d 296; People v Almodovar, 62 NY2d 126; People v Lupo, 305 NY 448; People v Owens, 69 NY2d 585; People v Taylor, 76 NY2d 873.) III. The court’s presummation ruling, that any reference by counsel to jury nullification would be interrupted by an instruction that the jury must follow the law, violated appellant’s right to counsel and right to a jury trial. (Herring v New York, 422 US 853; People v Ashwal, 39 NY2d 105; People v Walker, 119 AD2d 521; Seligson, Morris & Neuburger v Fairbanks Whitney Corp., 22 AD2d 625; People v Goetz, 73 NY2d 751; People v Mussenden, 308 NY 558; Duffy v People, 26 NY 588; New York Pub. Interest Research Group v Steingut, 40 NY2d 250; People v Keta, 79 NY2d 474; Georgia v Brailsford, 3 Dallas [3 US] 1.)

      Edward J. Kuriansky, Deputy Attorney-General, New York City (Arthur G. Weinstein and Donald H. Zuckerman of counsel), for respondent.
    I. Defense counsel had no right to ask the jury to disregard the law. (People v Goetz, 73 NY2d 751, 489 US 1053; People v Mussenden, 308 NY 558; Duffy v People, 26 NY 588; Sparf & Hansen v United States, 156 US 51; United States v Krzyske, 836 F2d 1013, 488 US 832; Nix v Whiteside, 475 US 157.) II. The court properly responded to the jury’s request by explaining that tax returns must be filed timely. (People v Bonaparte, 78 NY2d 26.) III. The Tax Law was applied constitutionally and as intended to appellant, who had ample notice that he was committing a felony by not filing a return for the third consecutive year. (Miller v Florida, 482 US 423; Weaver v Graham, 450 US 24; People v Allen, 136 Misc 2d 963; People v Rosenberg, 93 Misc 2d 965; People v Morse, 62 NY2d 205; People v Rivera, 156 AD2d 177, 75 NY2d 923; People v Cox, 286 NY 137; People v Weinberg, 183 AD2d 930, 80 NY2d 977; United States v Minicone, 960 F2d 1099; United States v Tapia, 981 F2d 1194.)
   OPINION OF THE COURT

Levine, J.

In January 1987, defendant was indicted for three misdemeanor counts of failure to file a tax return (Tax Law § 1801) and one class E felony count of repeated failure to file a tax return (Tax Law § 1802), arising from his failure to file New York State personal income tax returns for the years 1983, 1984 and 1985. In August 1987, eight months after he was indicted, defendant did file the delinquent returns. Defendant was ultimately convicted on all counts. Defendant appealed his conviction and the Appellate Division affirmed (190 AD2d 767). A Judge of this Court granted defendant leave to appeal, and we now affirm.

Defendant’s first point on appeal is that the Legislature did not intend Tax Law § 1802 to be applied retroactively to a repeated failure to file returns which occurred in part prior to the effective date of the statute. The fatal flaw in this argument is that the statute is not being retroactively applied here in any true sense of the term. "A statute is not retroactive * * * when made to apply to future transactions, merely because such transactions relate to and are founded upon antecedent events” (McKinney’s Cons Laws of NY, Book 1, Statutes § 51, at 87; see, Forti v New York State Ethics Commn., 75 NY2d 596, 609-610). Defendant’s reliance on cases setting forth principles of statutory construction requiring a clear manifestation of legislative intent to make a new statute retroactive (see, e.g., People v Behlog, 74 NY2d 237, 240; People v Oliver, 1 NY2d 152, 157-158) is therefore misplaced. Section 1802 of the Tax Law is one of several provisions of the Omnibus Tax Equity and Enforcement Act of 1985 which became effective on November 1, 1985, and which were made applicable "to all offenses committed on or after such date” (L 1985, ch 65, §§ 39, 160 [a]). Here, defendant "committed” the section 1802 offense when he failed to file his 1985 tax return by April 15, 1986, having then failed to file his returns for three consecutive years. Defendant’s conduct thus falls within the plain statutory language concerning the applicability of the section, and he has pointed to no legislative history for the act in general or section 1802 in particular that would indicate otherwise. Defendant’s construction — which would necessitate a conclusion that the Legislature did not intend for section 1802 to take effect for at least three years after its enactment — is further undermined by the Legislature’s enactment of a companion bill providing for an immediate three-month, one-time-only tax amnesty period, whereby taxpayers were given the opportunity to settle their outstanding tax liabilities by paying back taxes and interest due the State (L 1985, ch 66; see, Governor’s Mem approving L 1985, ohs 65 and 66, 1985 McKinney’s Session Laws of NY, at 3276-3277). The immediate amnesty would have been meaningless as to section 1802 violations under defendant’s construction, that all nonfilings must occur after November 1, 1985.

Defendant’s claim that Tax Law § 1802 as applied against him in this case constitutes an unconstitutional ex post facto law is also without merit. As explained above, defendant did not commit the repeated failure to file offense until he failed to file his 1985 return by April 15, 1986, a point in time well after section 1802’s effective date. As such, the Legislature has not punished defendant for acts previously committed that were innocent when performed, nor enhanced the punishment for a crime after its commission (see, Collins v Youngblood, 497 US 37, 42). Our decision in People v Morse (62 NY2d 205, appeal dismissed sub nom. Vega v New York, 469 US 1186), is instructive on this issue. In Morse, we held that application of the second violent felony offender and the persistent violent felony offender statutes did not violate the ex post facto prohibition, even where the prior crime was not classified as a violent felony offense at the time it was committed (id., at 217-218). As in Morse, a conviction under section 1802 " 'is not to be viewed as either a new jeopardy or additional penalty for the earlier [nonfilings]. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one’ ” (id., at 217-218 [quoting Gryger v Burke, 334 US 728, 732]).

Moreover, there is plainly absent here what the Supreme Court has identified as a "critical” element to relief under the Ex Post Facto Clause, "the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated” (Weaver v Graham, 450 US 24, 30; see also, Miller v Florida, 482 US 423, 430). Defendant, having failed to file returns for the two consecutive years of 1983 and 1984, was given fair warning by the enactment of section 1802 that his failure to file a return for 1985 would result in criminal liability for repeated failure to file under that section. We therefore conclude that defendant’s prosecution under Tax Law § 1802 does not violate the ex post facto prohibition (see, Collins v Youngblood, 497 US 37, supra).

We likewise reject defendant’s contention that the trial court committed error in giving supplemental instructions to the jury regarding a timeliness element in any of the offenses, i.e., that the statute is violated by a failure to file within the time required by law (see, Tax Law § 1801 [a]). Defendant does not dispute that timely filing is an element of both sections 1801 and 1802, but only that the instruction on timeliness was unrequested and unbalanced. During deliberations, the jury sent a note to the court requesting that it repeat the charge on the elements of the violations of both sections 1801 and 1802, and the court proceeded to reread the elements of both offenses to the jury. During a bench colloquy that immediately followed, the court recognized that it had failed to reiterate the timeliness element of the offenses and, before the jury retired to resume deliberations, the court reinstructed the jury regarding that element.

Under CPL 310.30, when a deliberating jury requests supplementary instruction or information, the court "must give such requested information or instruction as the court deems proper”. We have held that a trial court is obliged to respond meaningfully to the jury’s inquiries (People v Almodovar, 62 NY2d 126, 131; People v Malloy, 55 NY2d 296, 301, cert denied 459 US 847; People v Gonzalez, 293 NY 259, 262), and that the court "is vested with some measure of discretion in framing its response and is in the best position to evaluate the jury’s request in the first instance” (People v Malloy, supra, at 302). Here, the trial court fulfilled its duty to respond meaningfully to the jury’s inquiry by correcting its prior supplementary instruction to assure that the jury was not deliberating under a misapprehension of the law. Defendant’s attempt to characterize the timeliness instruction as unrequested ignores the scope of the jury’s initial question which requested a recapitulation of all of the elements of both offenses. The inclusion of the timeliness requirement was especially pertinent to rendering a meaningful response to the jury’s inquiry here in light of the fact that defendant did ultimately file untimely returns. Defendant’s claim that the timeliness instructions were so unbalanced as to preclude the jury from properly considering the main defense theory — i.e., that defendant lacked intent to evade taxes — is unpersuasive as the court explicitly prefaced the timeliness instruction with a reiteration that the individual must intend to evade the tax.

Defendant’s final argument that he should have been permitted by the trial court to present the concept of jury nullification during summation is foreclosed by our holding in People v Goetz (73 NY2d 751, cert denied 489 US 1053). In Goetz, in rejecting the defendant’s argument that the trial court erred in instructing the jury that they "must” convict if the prosecution had proven its case, we explained that "[wjhile there is nothing to prevent a petit jury from acquitting although finding that the prosecution has proven its case, this so-called 'mercy-dispensing power’ * * * is not a legally sanctioned function of the jury and should not be encouraged by the court” (id., at 752; see also, People v Mussenden, 308 NY 558, 562-563). Permitting defense counsel instead to encourage the jury to abdicate its primary function would directly contravene the trial court’s authority, recognized in Goetz, to instruct the jury that they must follow and properly apply the law.

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

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

Order affirmed.


author: Simons, J.

text:
    [631 NE2d 570, 609 NYS2d 564]
    The People of the State of New York, Respondent, v Jose Perez, Appellant. The People of the State of New York, Respondent, v Jose Vasquez, Appellant.
    Argued February 15, 1994;
    decided March 17, 1994

      POINTS OF COUNSEL

      Audra Zuckerman, New York City, and Philip L. Weinstein for appellant in the first above-entitled action.
    I. Appellant was denied due process and his constitutional and statutory rights to be tried only on charges voted by a Grand Jury and filed with the court, where the court allowed amendment of the indictment to add a count of second degree criminal possession of a weapon, because (a) such an amendment is prohibited by CPL 200.70 under any circumstances, and (b) the People failed to prove that the Grand Jury actually voted to charge appellant with that offense. (People v Boston, 75 NY2d 585; People v Iannone, 45 NY2d 589; People v Harper, 37 NY2d 96; People v Miles, 289 NY 360; Matter of Detrece H, 78 NY2d 107; People v Pelchat, 62 NY2d 97; People v Spann, 56 NY2d 469; People v Van Every, 222 NY 74; People v Fiske, 194 Misc 62; People v Ercole, 308 NY 425.) II. The court violated the jury selection procedure mandated by CPL 270.15 (3), when it removed the sworn jurors from the courtroom during the voir dire of the remaining prospective jurors without counsel’s consent. (Turner v Murray, 476 US 28; People v Buford, 69 NY2d 290; People v Ivery, 96 AD2d 712; People v Cassado, 156 AD2d 183; People v O’Rama, 78 NY2d 270; People v Coons, 75 NY2d 796; People v Ahmed, 66 NY2d 307; People v Patterson, 39 NY2d 288, 432 US 197; People v Ortiz, 69 AD2d 825; People v Antommarchi, 80 NY2d 247.)

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Magda S. Vives, Billie Manning and Susan L. Valle of counsel), for respondent in the first above-entitled action.
    I. Appellant’s guilt was proven beyond a reasonable doubt by overwhelming evidence. II. Due to his complete failure to litigate any of his factual or legal issues in the court of first instance, appellant presents this Court with entirely unpreserved and unreviewable claims. In any event, the amendment of the indictment was proper. (People v Ford, 69 NY2d 775; People v Balls, 69 NY2d 641; People v Iannelli, 69 NY2d 684, 482 US 914; People v Brown, 81 NY2d 798; People v Jordan, 62 NY2d 825; People v Lopez, 71 NY2d 662; People v Patterson, 39 NY2d 288; People v Boston, 75 NY2d 585; People v Iannone, 45 NY2d 589; People v Callahan, 80 NY2d 273.) III. Appellant’s claim that the trial court’s excusai of sworn jurors from the courtroom prior to the conclusion of the jury selection process, without obtaining counsel’s consent, violated CPL 270.15 (3) is unpreserved, meritless and error, if any, was harmless. (People v Hopkins, 76 NY2d 872; People v Ortiz, 69 AD2d 825; People v Iannelli, 69 NY2d 684; People v Middleton, 54 NY2d 42; People v Thomas, 50 NY2d 467; People v O’Rama, 78 NY2d 270; People v Coons, 75 NY2d 796; People v Mehmedi, 69 NY2d 759; People v Ahmed, 66 NY2d 307; People v Patterson, 39 NY2d 288, 432 US 197.)

      George W. Albro, New York City, and Philip L. Weinstein for appellant in the second above-entitled action.
    I. Appellant was denied due process and his constitutional and statutory rights to be tried only on charges voted by a Grand Jury and filed with the court when the court, over objection, permitted the amendment of the indictment to add a count of felony murder, since (a) such an amendment is barred by CPL 200.70, and (b) the prosecutor had not sufficiently established that the grand jurors had in fact voted to charge appellant with felony murder. (People v Boston, 75 NY2d 585; People v Patterson, 39 NY2d 288; People v Iannone, 45 NY2d 589; People v Miles, 289 NY 360; People v Lee, 100 AD2d 357; People v Grega, 72 NY2d 489; People v Spann, 56 NY2d 469; People v Torres, 150 Misc 2d 234; People v Jackson, 153 Misc 2d 270; People v Salley, 133 Misc 2d 447.) II. Appellant was denied due process and a fair trial when the court permitted the People, over objection, to present alibi-rebuttal testimony even though the People failed to serve appellant with notice of such testimony, as mandated by the Federal and State Constitutions and CPL 250.20 (2). (Wardius v Oregon, 412 US 470; People v Bush, 33 NY2d 921; People v O’Doherty, 70 NY2d 479; People v Corpas, 150 AD2d 710; People v Petterson, 96 AD2d 871; People v Greene, 75 NY2d 875; People v Skinner, 57 AD2d 785; People v Thompson, 71 NY2d 918; Brooks v Tennessee, 406 US 605; Mauricio v Duckworth, 840 F2d 454, 488 US 869.)

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Howard B. Sterinbach and Billie Manning of counsel), for respondent in the second above-entitled action.
    I. Appellant’s guilt was proven beyond a reasonable doubt by overwhelming evidence. II. The indictment was properly amended. (People v Boston, 75 NY2d 585; People v Iannone, 45 NY2d 589; People v Iannelli, 69 NY2d 684, 482 US 914; People v Cade, 74 NY2d 410; People v Ianiello, 21 NY2d 418; People v Kennedy, 127 Misc 2d 712; Matter of Goldberg v Extraordinary Special Grand Juries, 98 Misc 2d 624; People v Bouyea, 64 NY2d 1140; People v Esteves, 41 NY2d 826; People v Lawrence, 64 NY2d 200.) III. The trial court acted within its discretion by permitting the testimony of the People’s rebuttal witness. (People v Iannelli, 69 NY2d 684, 482 US 914; Wardius v Oregon, 412 US 470; People v Dekle, 56 NY2d 835; People v Nocoa, 70 NY2d 490; Green v Fogg, 422 F Supp 1034.)
   OPINION OF THE COURT

Simons, J.

The issue presented in each of these cases is whether the trial court exceeded its authority under CPL 200.70 when it amended a criminal indictment by adding a new count. In both instances, the People asserted that the count had been properly voted by the Grand Jury but left out of the indictment as a result of a clerical error. We conclude that the courts lacked the statutory authority to order the amendments. The convictions on the added charges must therefore be vacated and the counts dismissed.

In People v Perez, a Bronx County Grand Jury filed an indictment charging defendant with attempted murder, reckless endangerment and two counts of attempted assault. Some six months later, prior to trial, the People moved to amend the indictment to include one count of criminal possession of a weapon arising from the same incident. The prosecutor asserted that the count had been dropped from the indictment through inadvertence though it had been voted upon and approved by the Grand Jury. The Judge agreed to review the Grand Jury minutes and later concluded that the indictment should be amended to reflect the additional charge of possession of a weapon. Defendant was convicted on that count and on the count of reckless endangerment. The Appellate Division affirmed, holding that the court had the power under CPL 200.70 to correct a clerical error upon adequate proof of the Grand Jury’s intent.

In People v Vasquez, a Bronx County Grand Jury filed an indictment charging defendant with intentional murder and four other counts. Before trial, the People moved to amend the indictment to include a charge of felony murder based upon the same incident. As in Perez, the People blamed the absence of the charge from the face of the indictment on a clerical error and offered to produce Grand Jury records to demonstrate that the Grand Jury had voted to indict on the charge. Upon review, the trial court ordered the indictment amended. Defendant was convicted of the added felony murder charge and robbery in the first degree. The Appellate Division found no error in the court’s action amending the indictment.

Section 6 of article I of the State Constitution guarantees individuals the right to indictment by a Grand Jury before being tried for an infamous crime (NY Const, art I, § 6). That requirement, rooted in the belief that the public should have a check against the potential abuse of power by those vested with the prosecutorial authority of the State (People v Iannone, 45 NY2d 589, 594-595), is a matter of " 'public fundamental rights fixed by the Constitution’ ”, not one of " 'policy, expediency or convenience’ — as a district attorney or judges may see it” (see, Matter of Simonson v Cahn, 27 NY2d 1, 3 [quoting People ex rel. Battista v Christian, 249 NY 314, 318]). At common law, the significance of an indictment was so great that trial courts lacked the authority to amend it in any way (see, People v Ercole, 308 NY 425, 430; People v Jackson, 153 Misc 2d 270, 271; see also, Ex parte Bain, 121 US 1, 6). Amendments had to be authorized by statute and even those the Legislature authorized had to conform to the dictates of the Constitution.

The rigidity of the common-law rule resulted in the dismissal of indictments for purely technical reasons and thus, in 1881, the Legislature for the first time authorized amendments to a limited degree (see, People v Ercole, supra, at 430; Code Grim Pro § 293). The statute, section 293 of the Code of Criminal Procedure, permitted a court to vary an indictment in matters relating to times, names or descriptions, provided that the accused was not prejudiced.

Cases decided under the code demonstrate how restricted the grant of power was. In People v Van Every (222 NY 74), a clerical error in an indictment set the date of the crime as October 17, 1915 — a date in the future — rather than October 17, 1914. The trial court allowed an amendment to correct the error. Our Court reversed, holding correction of the error, though apparently technical in origin, was "not one of form but of substance”. This was so, we said, because a future crime was an impossibility and thus without the correction the indictment failed to state a crime (id., at 78; compare, People v Easton, 307 NY 336, 338 [identical error in an information can be corrected]). Similarly, in People v Ercole (supra), we barred an additional allegation that the larceny had taken place by false representation, even though larceny had been charged and the alternative theory stated in the proposed amendment had been voted upon and filed by the Grand Jury (see, 308 NY, at 439, supra [Desmond, J., dissenting]). In People v Miles (289 NY 360), we held that a court lacked the power to charge a new crime even with defendant’s consent.

The guiding principle of these cases and of section 293 of Code of Criminal Procedure was expressed in People v Geyer (196 NY 364, 367): "[I]t could not have been and was not the purpose of the legislature to attempt to authorize the trial court by amendment to change the substantial elements and nature of the crime charged and in effect substitute a new indictment in the place of the one found by the grand jury.”

The present CPL 200.70 superseded section 293 of the Code of Criminal Procedure. Though the language of the new statute differs from that of section 293, the drafters stated that no substantive change in the law was intended (1967 Proposed NY CPL, at 177). The most notable change between the form of the current law and its predecessor was the addition of subdivision (2), which explicitly lists instances where no amendment is allowed. Under the current statutory scheme, subdivision (1) is largely a restatement of the Code of Criminal Procedure’s affirmative grant of power to make certain nonsubstantive changes. That subdivision authorizes amendments pertaining to "matters of form, time, place, names of persons and the like, when such an amendment does not change the theory or theories of the prosecution as reflected in the evidence before the grand jury”. Subdivision (2), on the other hand, spells out changes that are prohibited. Significantly, the subdivision prohibits amendment of an indictment "for the purpose of curing * * * (a) A failure thereof to charge or state an offense”.

Defendants argue that this language bars an amendment that adds an offense to the indictment. In their view, the changes approved by the trial courts here were not changes in form but changes in substance and thus beyond the statute, under the reasoning of cases like People v Geyer (196 NY 364, supra) and People v Van Every (222 NY 74, supra; see also, People v Oliver, 3 NY2d 684).

In response, the People note first that the addition of a charge duly voted by the Grand Jury does not alter "the theory or theories of the prosecution as reflected in the evidence before the grand jury”. Thus, they see subdivision (1) of CPL 200.70 as expressly authorizing the amendment by the trial court. They point out that CPL 200.70 and its predecessor were specifically designed to avoid dismissals premised solely on technical errors and assert that to require dismissal here where the errors were patently technical — clerical mistakes— would be contrary to the intent of the statute (see, People v Gray, 157 AD2d 596, lv denied 75 NY2d 966).

Crucial to the People’s argument is a limited reading of subdivision (2) of CPL 200.70. They assert that the relevant language — the prohibition against curing a "failure * * * to charge or state an offense” — refers narrowly to situations where the indictment alleges conduct that is either not criminal or an impossibility (e.g., a future crime). Thus, in the People’s view, the language envisions situations where the People either cannot prove the facts stated in the indictment or, even if they can and do, no crime will have been demonstrated.

The People’s reading of the statute would lead to anomalous results. For instance, the prosecution would be barred from fixing a small typographical error that caused a count in the indictment to state that the crime took place in a future year (see, People v Van Every, 222 NY 74, supra), but allowed to amend the indictment if no count had been stated at all. Similarly, under CPL 200.70 (2) (b), prohibiting an amendment to cure the legal insufficiency of the factual allegations, the People would be barred from adding a single fact to cure the indictment but allowed to add all the facts if, by inadvertence, the count was left out in its entirety.

Conversely, the People read the grant of power contained in subdivision (1) too broadly. In effect, they contend that amendment is allowed so long as it "does not change the theory or theories of the prosecution as reflected in the evidence before the grand jury”. That, however, is only one of the tests for what constitutes a permissible amendment under the terms of the statute. The remainder of the subdivision makes clear that only certain kinds of errors — even if they effect no change in the prosecution’s theory — may be subject to amendment: those "relating to matters of form, time, place, names of persons and the like”. Whatever flexibility is built into the open-ended term "and the like”, it certainly does not extend the category so far as to allow the addition of an entirely new count. In short, the amendment in each of these cases was designed to cure a failure to charge or state an offense and is not authorized by CPL 200.70. Such an amendment is a change in substance, not in form.

Thus, the People’s contentions that in these cases defendants were neither denied their right to be indicted by a Grand Jury nor prejudiced by the belated notice the Constitution requires when the new charge was subsequently added are not relevant (see, NY Const, art I, § 6; People v Iannone, 45 NY2d 589, 594, supra). Because common law admitted no power to amend an indictment, the narrow question before us is whether the Legislature, through CPL 200.70, has granted trial courts the power to order the amendments sought here. In view of the statutory language, we conclude that the Legislature has not done so and the omission must be cured by superseding indictment or re-presentment. The People note the waste of prosecutorial resources that will result from requiring a superseding indictment to bring a count which the records indicate the Grand Jury clearly intended. They also point to the added inconvenience to witnesses if the Grand Jury has disbanded and re-presentment is necessary. The obvious merit to those policy considerations must be addressed by the Legislature, however, not the courts (see, People v Jackson, 153 Misc 2d 270, 276, supra [Donnino, J.]).

We have reviewed defendants’ other contentions and they are without merit.

Accordingly, in People v Perez, the order of the Appellate Division should be modified by vacating the conviction for criminal possession of a weapon in the second degree and dismissing that count of the indictment and the case remitted to Supreme Court, Bronx County, for resentencing on the reckless endangerment count and, as so modified, affirmed. In People v Vasquez, the order of the Appellate Division should be modified by vacating the conviction for murder in the second degree and dismissing that count of the indictment and, as so modified, affirmed.

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

In People v Perez: Order modified and case remitted to Supreme Court, Bronx County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

In People v Vasquez: Order modified in accordance with the opinion herein and, as so modified, affirmed.

       Under CPL 470.20 (3) and 470.40 (1), we choose to remit People v Vasquez to Supreme Court, Bronx County, for resentencing on the robbery count, which was unaffected by our decision. Because the Appellate Division has already ordered remittal of the case for resentencing on separate grounds, we therefore affirm so much of the order of the Appellate Division as relates to that corrective action. We note that the rationale for the Appellate Division’s remittal was not before us on this appeal from defendant, and thus that rationale remains undisturbed by our decision.


text:
    [631 NE2d 574, 609 NYS2d 568]
    The People of the State of New York, Respondent, v George Kuey, Appellant.
    Argued February 9, 1994;
    decided March 22, 1994

      POINTS OF COUNSEL

      Hancock & Estabrook, Syracuse (Alan J. Pierce of counsel), for appellant.
    I. It was error to use defendant’s prior youthful offender conviction from Florida as a basis for sentencing him as a second felony offender in New York. (People v Carpenteur, 21 NY2d 571; People v Hamilton, 104 AD2d 1048; People v Mitchell, 88 AD2d 982; People v Arroyo, 179 AD2d 393; People v Treadwell, 80 AD2d 697; People v Ebron, 87 AD2d 653; People v Duffy, 83 AD2d 563; People v Claypoole, 47 AD2d 269.) II. Defendant’s adjudication as a second felony offender was statutorily and constitutionally impermissible. (People v Scarbrough, 105 AD2d 1107, 66 NY2d 673; People v Wright, 56 NY2d 613; People v Holley, 168 AD2d 992; People v Lewis, 138 Misc 2d 822; Benton v Maryland, 395 US 784; United States v DiFrancesco, 449 US 117; North Carolina v Pearce, 395 US 711; People v Sailor, 65 NY2d 224; People v Stewart, 144 AD2d 601, 73 NY2d 896.) III. Defendant’s sentence was illegally imposed because of the court’s failure to order an updated presentence report. (People v Selikoff, 35 NY2d 227; People v Halaby, 77 AD2d 717; People v Gordon, 155 AD2d 225; People v Villegas, 146 AD2d 228; People v Saez, 121 AD2d 947, 69 NY2d 802; People v Andujar, 110 AD2d 606; People v Jackson, 106 AD2d 93; People v Martinez, 118 AD2d 661; People v Cruz, 89 AD2d 569; People v O’Dell, 105 AD2d 987.)

      James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Barbara D. Rose of counsel), for respondent.
    I. The trial court did not abuse its discretion by resentencing appellant without obtaining an updated presentence report. (People v Kuey, 186 AD2d 684; People v Sykes, 150 AD2d 627; People v Cruz, 89 AD2d 569; People v Sanchez, 143 AD2d 377; People v Hayes, 101 AD2d 893; People v Difo, 185 AD2d 148; People v Washington, 172 AD2d 460; People v Ruiz, 157 AD2d 525; People v Roberts, 143 AD2d 560; People v Laster, 140 AD2d 233.) II. Appellant’s Florida youthful offender felony conviction was the proper basis for predicate felon status. (People v Cahill, 190 AD2d 744, 81 NY2d 883; People v Carpenteur, 21 NY2d 571; People v Hamilton, 104 AD2d 1048; People v Elliott, 99 Misc 2d 794; People v Arroyo, 179 AD2d 393, 79 NY2d 997; People v Treadwell, 80 AD2d 697.) III. Appellant’s sentence as a predicate felon violated neither statute nor Constitution. (People v Kuey, 155 AD2d 481; People v Brown, 54 AD2d 719; People v Scarbrough, 105 AD2d 1107, 66 NY2d 673; People v Lewis, 138 Misc 2d 822; People v Fuller, 134 AD2d 278, 70 NY2d 931; United States v DiFrancesco, 449 US 117; North Carolina v Pearce, 395 US 711; People v Hunt, 162 AD2d 782, 78 NY2d 932; People v Sailor, 65 NY2d 224, 474 US 982; Sailor v Scully, 836 F2d 118.)
   OPINION OF THE COURT

Simons, J.

Defendant has been resentenced as a second felony offender, using a prior Florida youthful offender conviction as the predicate felony, without the benefit of an updated presentence report. He contends that the failure to obtain an updated report and the use of the Florida youthful offender conviction as a predicate require reversal and resentencing. For the reasons which follow we disagree and therefore affirm.

L

Defendant was convicted in 1987 of attempted murder in the second degree, assault in the first degree and criminal possession of a weapon in the second degree. After receiving a presentence report, County Court sentenced defendant, as an armed violent felony offender, to a term of 12M> to 25 years on the attempted murder count, a concurrent term of 5 to 15 years on the assault count, and to a consecutive term of 5 to 15 years on the weapons count.

The Appellate Division modified the judgment by vacating the sentence imposed and remitted the matter for resentencing (155 AD2d 481). It held that (1) County Court erred in treating defendant’s conviction for attempted murder as an armed violent felony offense, and (2) that the sentence imposed on the weapons count should run concurrently with, not consecutively to, the other two sentences.

On remand, the People filed a predicate felony offender statement pursuant to CPL 400.21 which established that defendant had been convicted in Florida of burglary in the first degree and received a sentence in excess of one year. In February 1990, County Court, without obtaining an updated presentence report, resentenced defendant as a second felony offender to concurrent terms of imprisonment of 12 Vi to 25 years, 7Vi to 15 years and 7 Vi to 15 years.

The Appellate Division affirmed, holding that where a defendant has been continually incarcerated between the time of the original sentence and the resentence, as this defendant has been, the use of an updated presentence report was discretionary, not mandatory (186 AD2d 684, 685). The Court found no merit to defendant’s contention that the prior Florida conviction could not be used as a predicate felony.

IL

CPL 390.20 (1) provides that "[i]n any case where a person is convicted of a felony, the court must order a pre-sentence investigation of the defendant and it may not pronounce sentence until it has received a written report of such investigation”. Defendant contends that a plain reading of the statute requires a court to obtain an updated presentence report prior to the imposition of any sentence, be it an initial sentence or a resentence.

The provisions of CPL 390.20 (1) are mandatory, insofar as they apply to the initial sentencing of a person convicted of a felony (People v Selikoff, 35 NY2d 227, 238, cert denied 419 US 1122). The reason is "self-evident” (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 390.20, at 192 [1983]): a sentencing Judge should base the sentencing decision on a full understanding of a defendant’s past, which includes a current review of factors such as a defendant’s family and social history and the results of any physical or psychiatric examinations (see generally, People v Aiss, 29 NY2d 403, 405-406 [citing to former Code Crim Pro § 943]; see also, People v Saez, 121 AD2d 947, 948, affd 69 NY2d 802). However, the statute is silent on whether an updated report is needed at resentencing and the Departments of the Appellate Division are divided on the issue (compare, People v Laster, 140 AD2d 233 [1st Dept] [updated presentence report required at resentencing], with People v White, 115 AD2d 313, 315 [4th Dept] [updated presentence report not required where defendant has been continuously confined between time of initial report and sentencing]). We conclude that the decision whether to obtain an updated report at resentencing is a matter resting in the sound discretion of the sentencing Judge.

When a defendant comes before the court for resentencing, the proper focus of the inquiry is on defendant’s record prior to the commission of the crime. The original presentence report supplies that information and if, for any reason, the Judge considers additional information necessary, an updated report may be ordered. But to require an update in all instances does not advance the purpose of CPL 390.20 (1) and unnecessarily adds to the already heavy burden on the investigative service. This is especially true when, as here, resentencing is ordered because of a technicality and the reviewing court expresses no disagreement with the sentencing court’s evaluation of sentencing criteria or the appropriateness of the term imposed.

In this case defendant had been continually incarcerated between the time of the initial sentencing and resentencing and at the time of his resentencing he was afforded the opportunity to supply information about his subsequent conduct. Indeed he told the sentencing Judge that he had used his time in jail productively to further his education and that he hoped to receive a college degree while serving his sentence. If the Judge thought he required additional information after hearing defendant, he could have ordered an update. There was no legal obligation that he do so, however, and we find no abuse of discretion in his determination not to update the presentence report here.

ra.

Defendant next contends that his Florida youthful offender conviction should not have been used as a predicate for his sentence as a second felony offender.

Under Penal Law § 70.06 a person may receive an enhanced sentence as a second felony offender where the prior conviction occurred in a jurisdiction other than New York and the underlying offense would be treated as a felony if it had occurred in New York (see, People v Sailor, 65 NY2d 224, 237, cert denied 474 US 982; People v Gonzalez, 61 NY2d 586, 589). The statute is satisfied in this case because defendant’s burglary of a home in Florida would constitute a felony if committed in New York (Penal Law § 140.20). Under New York law, however, a felony conviction of a person given youthful offender status may not be used as a predicate for enhanced sentencing (CPL 720.35; People v Lane, 60 NY2d 748, 751; People ex rel. Wayburn v Schupf, 39 NY2d 682, 688). Thus, defendant contends that his Florida youthful offender conviction was improperly used here. In his view, only two inquiries are relevant: was the defendant afforded youthful offender status in a foreign jurisdiction, and would the defendant have been eligible for youthful offender status in New York? If so, the prior felony cannot serve as a predicate felony in this State. He relies on People v Carpenteur (21 NY2d 571).

In Carpenteur defendant was convicted in California as a youthful offender. There was no question that the offense, if committed in New York, would have been a felony and that, if the offense had been committed in New York, defendant would have been eligible for youthful offender treatment here. We held that the California conviction could not be used as a predicate crime for sentencing purposes. However, our determination rested on broader grounds than these: we first satisfied ourselves that the effect of being adjudicated a youthful offender in California and New York was the same. Thus, the Court noted that (1) if the defendant had committed the initial offense in New York, our courts would have had the option of treating him as a youthful offender (see, former Code Grim Pro § 913-g); (2) under California law, as in New York, the defendant’s prior youthful offender conviction could not be used in that State’s enhanced sentencing scheme; and (3) the California courts acted under a statute that was similar to New York’s and it applied policies which the People conceded were identical to ours. Only after reviewing these factors did we conclude that the defendant’s California conviction should be treated as a youthful offender conviction for New York sentencing purposes.

The rule to be drawn from Carpenteur is that if the statutory schemes of the two States are similar, New York will give the foreign conviction the same force and effect in New York that it would have where entered. The California court having decided to treat the defendant as a youthful offender in Carpenteur under a statutory scheme similar to New York’s, its decision determined defendant’s status for purposes of New York’s second felony offender statute.

If defendant’s contention is correct, the court’s comparison of the two statutes would have been unnecessary in Carpenteur. Under his theory, as soon as another jurisdiction treats a person as a youthful offender, New York is prohibited from using that conviction as a predicate felony, if defendant would have been eligible for similar treatment in this State. The decisive factor, however, was not the California youthful offender conviction but the similarity of the State’s schemes for handling youthful offenders.

Alternatively, defendant maintains that Florida and New York, much like California and New York, have similar policies for the treatment of youthful offenders, though expressed in slightly different fashions. We find no such similarity. The decision to grant a person youthful offender status is discretionary in New York (CPL 720.20) and also in Florida (Fla Stat Annot § 958.04 [1]) but the two schemes differ substantially in other respects. Significantly, Florida treats the youthful offender’s record in the same manner as a record of adult conviction and permits a prior youthful offender conviction to be used as a predicate conviction in enhanced sentencing (see, Fla Stat Annot § 958.13 [1] [youthful offender record treated in same manner as adult record]; Fla Rules of Grim Pro rule 3.701). Under New York law, the court is prohibited from using a prior youthful offender conviction as a predicate and the conviction must be expunged from the record upon defendant’s being granted youthful offender status. Manifestly, the New York and Florida statutory schemes, unlike those of New York and California reviewed in Carpenteur, embody decidedly different approaches in the area of sentencing youths.

That a Florida court may not have used defendant’s prior conviction in enhanced sentencing, should not and cannot control the decision in this State. The New York courts are not required to investigate the nuances of Florida’s enhanced sentencing scheme or speculate on how the prior conviction might have been used (cf., People v Sailor, 65 NY2d 224, 237, supra). It is sufficient that Florida treats youthful offenders in a significantly different fashion than does New York because it allows youthful offender convictions to serve as the predicate offense in an enhanced sentencing scheme. New York courts may give equal force to such convictions. That is the rule derived from People v Carpenteur (supra).

Defendant’s remaining contentions are without merit.

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

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

Order affirmed.