text:
    [654 NE2d 1233, 630 NYS2d 985]
    The People of the State of New York, Respondent, v Derek Yancy, Appellant. The People of the State of New York, Respondent, v Joseph Chapman, Appellant.
    Argued May 4, 1995;
    decided June 14, 1995

      POINTS OF COUNSEL

      Malvina Nathanson, New York City, for appellant in the first above-entitled action.
    I. The presence of empty glass vials on the back seat of appellant’s car, on a weekend night at the entrance to the Lincoln Tunnel, with no indicia of criminal activity, was insufficient to justify the arrest. (People v Cohen, 23 NY2d 674; People v Cornelius, 113 AD2d 666; People v Bryant, 194 AD2d 549; Matter of Ashanti L., 194 AD2d 792; People v Shaw, 193 AD2d 390; People v Davis, 192 AD2d 360; People v Walton, 184 AD2d 675; People v Rivera, 175 AD2d 78, 78 NY2d 1129; People v Nicolas, 171 AD2d 817; People v Edwards, 160 AD2d 501.) II. The New Jersey predicate conviction was not for a crime which is a felony in New York, and so it may not be the basis of an enhanced sentence. (People v Muniz, 74 NY2d 464; People v Olah, 300 NY 96; People v Martin, 81 AD2d 765; People v Gonzalez, 61 NY2d 586.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Carol A. Remer-Smith and Norman Barclay of counsel), for respondent in the first above-entitled action.
    I. The hearing court properly denied the motion to suppress physical evidence. (People v Oden, 36 NY2d 382; People v Wharton, 46 NY2d 924, 444 US 880; People v McRay, 51 NY2d 594; People v Morales, 42 NY2d 129, 434 US 1018; People v Risso, 40 NY2d 425; People v Leonti, 18 NY2d 384, 389 US 1007; People v Concepcion, 38 NY2d 211; People v Alexander, 37 NY2d 202; People v Zimbardo, 21 NY2d 15; People v Edwards, 69 NY2d 814.) II. The court properly adjudicated defendant a predicate felony offender based on his out-of-State conviction. (People v Muniz, 74 NY2d 464; People v Gonzalez, 61 NY2d 586; People v Armstrong, 167 AD2d 108, 77 NY2d 903; People v Jackson, 118 AD2d 469, 67 NY2d 944; People ex rel. Gold v Jackson, 5 NY2d 243; People v Telman, 114 AD2d 799.)

      Barry Stendig, New York City, and Philip L. Weinstein for appellant in the second above-entitled action.
    Appellant’s right to be free from unreasonable searches and seizures was violated by the warrantless police search of a food container in his car because the presence of 200 empty plastic vials in the car did not provide the police with probable cause to believe that the car contained contraband. (United States v Ross, 456 US 798; People v Langen, 60 NY2d 170; People v Bryant, 37 NY2d 208; People v Alexander, 37 NY2d 202; People v Corrado, 22 NY2d 308; People v McRay, 51 NY2d 594;
      People v Bonilla, 200 AD2d 369; People v Balas, 104 AD2d 1039; People v Geddes, 134 AD2d 279; People v Jones, 172 AD2d 265.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Carol A. Remer-Smith and Norman Barclay of counsel), for respondent in the second above-entitied action.
    The hearing court correctly determined that the officers had probable cause to search the car and the food containers found in the bag. (People v Oden, 36 NY2d 382; People v Wharton, 46 NY2d 924, 444 US 880; People v McRay, 51 NY2d 594; People v Morales, 42 NY2d 129, 434 US 1018; People v Risso, 40 NY2d 425; People v Leonti, 18 NY2d 384, 389 US 1007; People v Concepcion, 38 NY2d 211; People v Alexander, 37 NY2d 202; People v Zimbardo, 21 NY2d 15; People v Edwards, 69 NY2d 814.)
   OPINION OF THE COURT

Ciparick, J.

In these unrelated appeals, each defendant challenges the denial of suppression of vials, crack cocaine and other physical evidence on the ground that his Fourth Amendment right to be free from unreasonable searches and seizures was violated by the warrantless police search of his car. In both cases, defendants were travelling in a car pulled over by a police officer for a traffic violation. In each case, upon the officer’s approach to defendant’s car, the officer observed through the car windows an open bag containing vials and caps. Trained and experienced in drug detection, these police officers recognized the vials as the type used to package crack cocaine for street transactions. For the reasons that follow, we conclude that in both cases the lower courts properly found probable cause for the officers to believe defendants were using drug paraphernalia, thereby justifying the searches of the automobiles and defendants’ consequent arrests. Defendant Chapman was subsequently indicted for criminal possession of a controlled substance in the first degree (Penal Law § 220.21 [1]) and criminally using drug paraphernalia in the second degree (Penal Law § 220.50 [2], [3]). Defendant Yancy was indicted for criminally using drug paraphernalia in the second degree (Penal Law § 220.50 [2]), and criminal possession of a controlled substance in the second and third degrees (Penal Law § 220.18 [1]; § 220.16 [1]).

I.

A. People v Chapman

The screeching tires of a cream colored Audi turning onto Broadway at a high rate of speed, forcing three pedestrians to jump out of the crosswalk, caught the attention of two uniformed police officers sitting in their marked police car. The officers followed the Audi south on Broadway, turning on their siren and flashing lights as the distance between the Audi and the police car narrowed. After the Audi turned right onto West 125th Street and passed a stop sign, the officers pulled the car over. The officers parked their patrol car behind the Audi, and approached the car from opposite sides. Defendant was seated in the front passenger seat. The officer who was standing outside the car near defendant observed an open shopping bag filled with vials and yellow caps standing upright on the floor behind defendant. This officer signalled his partner, who was standing on the driver’s side, and gestured to the bag, alerting his partner to the contents he observed. One of the officers then asked the three men in the car if the vials belonged to them and each denied ownership. Nor could any of these individuals tell the officers what the vials were used for. The officers subsequently arrested the three individuals for criminally using drug paraphernalia, and issued summonses to the driver for failing to yield to pedestrians at a crosswalk and to yield at a stop sign.

A backup team of two officers arrived as the arresting officers were securing the car’s occupants and checking for weapons. The shopping bag was then removed from the car and upon examination yielded eight sealed, clear plastic bags, containing a total of 200 empty vials separately packaged from 200 matching yellow caps, a bread crumb container and a carton of instant cocoa powder. The bread crumb container proved to have a false bottom, which, when removed, revealed a bag of crack cocaine. Defendant then volunteered that he came to buy the cocaine for someone else and his two companions had nothing to do with "it.”

All three individuals were transported to the precinct, where Miranda warnings were administered. Defendant indicated that he understood his rights and agreed to answer questions. Defendant admitted he bought the crack on 140th Street for $2,800 and had purchased drugs in that neighborhood twice before but denied he sold crack. He maintained his present purchase was on behalf of someone else and stated that a vial would sell for $40 in Pennsylvania.

Following a suppression hearing, the trial court found, under the totality of the circumstances, that there was probable cause to believe there was contraband in the car, justifying the arrest of the car’s occupants and search of the vehicle. Therefore, the trial court denied defendant’s motion to suppress. The Appellate Division affirmed (People v Chapman, 209 AD2d 362). A Judge of this Court granted leave.

B. People v Yancy

On routine car patrol at the Lincoln Tunnel, a uniformed Port Authority officer stopped his vehicle in the midst of a traffic jam, turned on the car’s flashing lights and proceeded to direct the gridlocked traffic. The driver of a white Nissan would not make eye contact with the officer, prompting the officer to approach the car in an attempt to tell the driver to clear the intersection. As the officer walked up to the driver’s side of the car, passing the window alongside the back seat, he observed an open paper bag on the back seat containing vials the officer knew from his experience to be the sort used to package crack cocaine. He also saw an Alf doll on the back seat. The officer radioed for assistance, and directed defendant to pull over to the side as his car was impeding the flow of traffic.

Once at the curb, defendant produced his license and registration, which listed different surnames. In response to the officer’s query, defendant stated that he was coming from the "deuce,” a term the officer recognized as street slang for 42nd Street. Once his backup was in the vicinity, the officer ordered defendant and his companion out of the car. The officer asked defendant what was in the bag, and defendant replied "bottles.” Based on the officer’s familiarity with the drug trade, he knew this term translated to vials used to package cocaine. Defendant and his companion then gave statements to the officer, and during the subsequent search of the car, the officer discovered separately packaged bags of empty vials and matching caps, and that the Alf doll contained cocaine and paper used to package cocaine.

Following a suppression hearing, the Trial Judge found that the suspicions of this officer, who participated in hundreds of narcotics investigations near the tunnel within the last year alone, were justified by defendant’s furtive behavior, the officer’s observation of a large quantity of vials in open view, the time of day and location defendant said he was coming from, and defendant’s description of the contents of the bag. The trial court found that there was probable cause for the officer to believe there was contraband in the car and that criminal activity was afoot. Therefore, the hearing court upheld the arrest, search of the vehicle, and seizure of the Alf doll.

Defendant subsequently pleaded guilty and, under the terms of his plea bargain, was sentenced to 3 to 6 years for attempted criminal possession of a controlled substance. Defendant moved to vacate the sentence, arguing that the procedures for predicate sentencing were not observed. On consent, the sentence was vacated. The prosecutor subsequently filed a predicate offender statement which listed a New Jersey robbery conviction. The New Jersey indictment did not indicate which of the three subsections of the statute defendant was convicted under and it was only through an examination of the superseded information that the sentencing court determined that defendant committed a crime that would constitute a felony in New York. Therefore, defendant was resentenced to the term originally promised.

On appeal, the Appellate Division affirmed, holding that there was probable cause that defendant engaged in a criminal activity and that defendant was properly resentenced as a predicate felon (see, People v Yancy, 201 AD2d 281). A Judge of this Court granted leave.

II.

Probable cause exists if the facts and circumstances known to the arresting officer warrant a reasonable person to conclude that a crime is being or was committed (see, People v McRay, 51 NY2d 594, 602; People v Oden, 36 NY2d 382, 384). A valid arrest for a crime authorizes a warrantless search of a vehicle, and of any closed containers visible in the passenger compartment of the vehicle, in which the arrested person is travelling when the circumstances create a reasonable belief that the vehicle or its visible contents may be related to a crime or the commission thereof (see, People v Belton, 55 NY2d 49, 55, rearg denied 56 NY2d 646; People v Blasich, 73 NY2d 673, 678; see also, People v Langen, 60 NY2d 170, 179-180, cert denied 465 US 1028). Warrantless searches of automobiles are already recognized as an exception to the general rule that a warrantless search is per se unreasonable, given the mobility of the vehicle and the corresponding probability that any contraband contained therein will quickly disappear, and the diminished expectation of privacy attributed to individuals and their property when travelling in an automobile (see, California v Carney, 471 US 386, 392-393). While an officer’s inadvertent or incidental observation of an openly visible article that is known to have illicit uses is in and of itself insufficient to establish probable cause to justify a warrantless automobile search (see, People v Di Stefano, 38 NY2d 640, 648; People v Spinelli, 35 NY2d 77, 80; Coolidge v New Hampshire, 403 US 443, 446, reh denied 404 US 874), we have recognized that the presence of "additional relevant behavior or circumstances” can give rise to probable cause and justify the warrantless search and seizure (see, People v Oden, 36 NY2d, at 385, supra).

Here, the officers’ incidental observation of hundreds of separately packaged empty vials and caps in open view following a valid automobile stop; the officers’ respective experience in narcotics investigations and drug detection, which allowed them to surmise that defendants possessed a large quantity of empty vials for something other than personal use; and, each defendant’s responses and conduct subsequent to the stop for the traffic infraction provide evidentiary support for the mixed law and fact findings of the courts below that there was probable cause (see, People v McRay, 51 NY2d, at 601-602, supra; People v Clark, 45 NY2d 432, 439, rearg denied 45 NY2d 839; People v Oden, 36 NY2d, at 385, supra; People v Corrado, 22 NY2d 308, 313; People v Valentine, 17 NY2d 128, 132). As the probable cause determinations of the courts below are supported by each record, they are beyond this Court’s review (see, People v Harrison, 57 NY2d 470, 477). Because there was probable cause in each case, the warrantless searches and seizures did not transgress the Federal or State constitutional prohibition against unreasonable searches and seizures.

III.

Turning to defendant Yancy’s sentencing as a predicate felon, we hold that it was error for the courts below to have considered the superseded information in assessing the nature of defendant’s prior conviction in New Jersey. Defendant was indicted for robbery in New Jersey under title 2C:15-1 (a) of the New Jersey Code of Criminal Justice. This statute contains three subsections, only two of which correspond to felonies in New York. The indictment under which defendant was convicted did not indicate which subsection defendant violated, and therefore it was not evident from the face of the indictment whether defendant was adjudged to have committed a crime that would qualify as a felony in New York (see, People v Muniz, 74 NY2d 464, 468; People v Olah, 300 NY 96, 101-102). In this case, the trial court should not have extended or enlarged the allegations of the accusatory instrument by relying on a superseded complaint to fill the void created by the indictment in order to determine the precise nature of the crime defendant was convicted of in New Jersey (cf., People v Muniz, 74 NY2d, at 468, supra [reference to original complaint acceptable to isolate and identify statutory crime where defendant convicted under a foreign statute that renders certain acts felonies, and others misdemeanors, under New York law]; People v Gonzalez, 61 NY2d 586, 591-592; Penal Law § 70.06 [1] [b] [i]). Because the People failed to satisfy their burden of establishing that defendant was convicted of an offense in a foreign jurisdiction that is equivalent to a felony in New York, defendant is entitled to resentencing without consideration of the prior New Jersey conviction.

Accordingly, in People v Yancy, the order of the Appellate Division should be modified by vacating defendant’s sentence, and the case remitted to Supreme Court, New York County, for resentencing, and, as so modified, affirmed. In People v Chapman, the order of the Appellate Division should be affirmed.

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

In People v Yancy: Order modified and case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein.

In People v Chapman: Order affirmed.


source: Caselaw Access Project

author: Ciparick, J. Titone, J.

license: Public Domain

text:
    [654 NE2d 1237, 630 NYS2d 989]
    The People of the State of New York, Respondent, v Michael Jensen, Appellant.
    Argued June 7, 1995;
    decided July 5, 1995

      POINTS OF COUNSEL

      Michael D. Pinnisi, Ithaca, for appellant.
    I. The indictment should be dismissed because the evidence presented to the Grand Jury on each of the counts thereof was not sufficient to establish the offense charged. (People v Jennings, 69 NY2d 103; People v Pelchat, 62 NY2d 97; People v Manini, 79 NY2d 561; People v Ledwon, 153 NY 10; People v Sabella, 35 NY2d 158; People v Levan, 295 NY 26; People v Kenney, 135 App Div 380; People v Schmid, 124 AD2d 896, 69 NY2d 955; People v Kirnon, 39 AD2d 666, 31 NY2d 877; People v Paolillo, 15 Misc 2d 1031.) II. The indictment should be dismissed because the Grand Jury was not fully and properly instructed on the law, and because the prosecutor improperly inflamed the Grand Jury. (People v Calbud, Inc., 49 NY2d 389; People v Ruggieri, 102 Misc 2d 238; People v Ehrlich, 136 Misc 2d 514; People v Valles, 62 NY2d 36; People v Lancaster, 69 NY2d 20; People v Ali, 137 Misc 2d 812; People v Davis, 119 Misc 2d 1013; People v Tucker, 101 Misc 2d 660; People v Caracciola, 78 NY2d 1021; United States v Hasting, 461 US 499.)

      George M. Dentes, District Attorney of Tompkins County, Ithaca (Gary U. Surdell of counsel), for respondent.
    I. The evidence before the Grand Jury was legally sufficient to support all crimes charged. (People v Deegan, 69 NY2d 976; People v Barnes, 50 NY2d 375; People v Daddona, 81 NY2d 990; People v Olivo, 52 NY2d 309; People v Gasparik, 102 Misc 2d 487, 52 NY2d 309; People v McRay, 51 NY2d 594; United States v Robinson, 414 US 218; People v Evans, 43 NY2d 160; People v Marsh, 20 NY2d 98.) II. The instructions to the Grand Jury were proper. (People v Calbud, Inc., 49 NY2d 389; People v Valles, 62 NY2d 36; People v Taylor, 80 NY2d 1; People v Sanza, 37 AD2d 632; People v Rodriguez, 158 AD2d 376; People v Galletta, 171 AD2d 178.)
   OPINION OF THE COURT

Ciparick, J.

The question presented on this appeal is whether the Grand Jury evidence is legally sufficient to support the indictment. We agree with the Appellate Division that it is.

On November 6, 1992, at approximately 3:13 a.m., Cornell University Department of Public Safety Officers Kathy Zoner and Richard Brewer observed defendant carrying a dormitory lounge chair on his head as he crossed a bridge on the Cornell campus. Upon being stopped defendant informed the officers that he had obtained the chair in Donlon Hall, a residence located on the North Campus, and was taking it to the West Campus as a prank. Defendant declined to confirm whether he was a student. He stated that he had no identification on his person and, despite repeated requests, otherwise refused to identify himself in any manner. He was informed, in response to his inquiry, that he would be referred to the Cornell Judicial Administrator if he was a student; if he was not a student, he would be charged with petit larceny in City Court. After approximately 10 minutes of fruitless inquiries, one of the officers expressed impatience with defendant’s uncooperative behavior, at which point defendant stated that he did have identification after all, and began reaching into his pocket. Officer Brewer stated that he would remove the identification from defendant’s pocket himself and directed defendant to turn and face the police car. When Officer Brewer reached for defendant’s pocket, defendant slapped his hands away. Informed that he was under arrest, defendant bolted from the officers and ran toward the gorge under the bridge. He was pursued by Officer Zoner who caught him by the ankle as he lay on his back on the steep slope. Defendant demanded to be let go and Officer Zoner refused. Defendant rolled over and dragged her down the side of the gorge until she hit a concrete abutment and smashed her face and broke her teeth. Defendant escaped.

Defendant was subsequently indicted on four counts: three misdemeanors, petit larceny, criminal possession of stolen property in the fifth degree and resisting arrest, and one felony, assault in the second degree. County Court granted defendant’s motion to dismiss the indictment in its entirety. The Appellate Division reversed, holding that the evidence was sufficient for the Grand Jury to indict on the larceny and possession of stolen property counts, as defendant’s larcenous intent could be inferred from the circumstances and his admissions. Furthermore, the evidence before the Grand Jury was sufficient to sustain the charge of resisting arrest, and defendant’s intentional acts in preventing his arrest constituted sufficient evidence of the crime of assault. A Justice of the Appellate Division granted leave to appeal.

On a motion to dismiss an indictment, the sufficiency of the People’s presentation "is properly determined by inquiring whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury” (People v Jennings, 69 NY2d 103, 114). The Grand Jury must have before it evidence legally sufficient to establish a prima facie case, including all the elements of the crime, and reasonable cause to believe that the accused committed the offense to be charged (id.; People v Galatro, 84 NY2d 160; CPL 190.65 [1]). "Legally sufficient” evidence is defined in CPL 70.10 as "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof’ (see also, CPL 190.65 [1]; People v Mayo, 36 NY2d 1002, 1004 ["In the context of the Grand Jury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt”]). The fact that the proof presented to the Grand Jury is also susceptible of inferences of innocence is irrelevant, "as long as the Grand Jury could rationally have drawn the guilty inference” (see, People v Deegan, 69 NY2d 976, 979).

The inquiry of the reviewing court is limited to ascertaining the "legal sufficiency” of the evidence, and does not include weighing the proof or examining its adequacy at the Grand Jury stage, or determining whether there was reasonable cause to believe the accused committed the crimes charged, as the resolution of such questions is exclusively the province of the Grand Jury (see, Galatro, 84 NY2d, at 164, supra; Jennings, 69 NY2d, at 115, supra; Deegan, 69 NY2d, at 979, supra).

Defendant argues that the indictment should be dismissed in its entirety because the evidence presented to the Grand Jury on each of the counts was not legally sufficient to establish the charged offenses. This contention lacks merit.

A person is guilty of petit larceny when he or she "steals property” (Penal Law § 155.25). "A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner thereof’ (Penal Law § 155.05 [1]). The intent to "deprive” or "appropriate” prescribed in section 155.05 is satisfied by the exertion of " 'permanent or virtually permanent control over the property taken’ ” (Jennings, 69 NY2d, at 118, supra).

We conclude that the proof before the Grand Jury, viewed in the light most favorable to the People, was legally sufficient to support the inference that defendant acted with larcenous intent. Defendant was stopped at 3:13 a.m. carrying away a dormitory lounge chair he admitted did not belong to him. When appropriately questioned by the officers, defendant offered the explanation that he was involved in a "prank”. However, throughout the 10-minute encounter, defendant would not confirm whether he was a student and repeatedly refused to identify himself in any manner. In light of the unusual circumstances and defendant’s evasive and uncooperative behavior, we agree with the Appellate Division that there was sufficient proof before the Grand Jury from which it could rationally infer that defendant intended to steal the chair. "That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry, as long as the Grand Jury could rationally have drawn the guilty inference” (People v Deegan, 69 NY2d, at 979, supra).

Defendant’s argument for dismissal of the charge of criminal possession of stolen property in the fifth degree, which has for its premise the asserted absence of evidence of intent to steal the chair, is similarly unavailing in light of our conclusion that the People made out a prima facie case of larceny.

Defendant also argues that the charge of resisting arrest must be dismissed because the attempted arrest was unlawful. "A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person” (Penal Law § 205.30). A key element of resisting arrest is the existence of an authorized arrest, including a finding that the arrest was premised on probable cause (see, People v Peacock, 68 NY2d 675, 676-677; People v Parker, 33 NY2d 669; Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 205.30, at 503 [an individual who intentionally prevents an unauthorized arrest is not guilty of resisting arrest]). In this case, defendant’s argument that the officers did not have probable cause to arrest him for stealing the chair is misplaced. In the context of a motion to dismiss an indictment, we are limited to determining whether there was sufficient proof of facts before the Grand Jury from which it could rationally infer that the officers had probable cause to arrest for larceny, a question we answer in the affirmative.

Finally, the Appellate Division properly reinstated the charge of assault in the second degree. Penal Law § 120.05 (3) provides that a person is guilty of that crime when, "[w]ith intent to prevent a peace officer * * * from performing a lawful duty, he causes physical injury to such peace officer.” In this case, the evidence before the Grand Jury was legally sufficient to establish that defendant intended to prevent Officer Zoner from performing a lawful duty and caused her to sustain serious physical injuries.

We have considered defendant’s remaining contention and conclude that it is without merit.

The order of the Appellate Division should be affirmed.

Titone, J.

(dissenting). This is a case in which the overzealous conduct of an inexperienced campus security "peace” officer transformed what should have been handled as a collegiate disciplinary matter into a full-scale criminal indictment. Inasmuch as there was insufficient evidence before the Grand Jury to support any of the charges against this defendant, I dissent from the majority’s decision to uphold the indictment.

As the majority notes, the evidence before the Grand Jury showed that defendant, an 18-year-old college freshman, was stopped by two campus security officers at approximately 3:13 a.m. on the grounds of Cornell University. At the time he was stopped, he was carrying a lounge chair. In response to one of the officer’s questions, defendant stated that he had taken the chair from a dormitory on the north side of the campus and was carrying it to the western part of campus "as a prank” that had been inspired by some upper classmen.

Initially, defendant declined to produce identification or even to state whether or not he was a student. After an impasse lasting some 10 minutes, defendant finally acknowledged that he did have identification with him. However, one of the officers decided that defendant should not be permitted to reach into his own pocket for his documents and that instead a "frisk” was in order, "[bjecause [defendant] had already told us that he didn’t have identification” and "[this] was taking too much time.” The confrontation escalated when defendant "slapped” the officer’s hand away as the officer "reached for him.” At that point, one of the officers threatened to arrest defendant for "resisting arrest” while the other, less experienced officer stated that defendant was, in fact, under arrest. In response, defendant fled on foot, and the officers gave chase. One of the officers was injured in an effort to capture and subdue defendant.

Defendant escaped from the officer’s grasp, but he subsequently "turned himself in” to campus authorities after consulting with a "legal advisor.” It was on the basis of this evidence that the Grand Jury indicted defendant for petit larceny (Penal Law § 155.25), criminal possession of stolen property (Penal Law § 165.40), resisting arrest (Penal Law § 205.30) and second degree assault (Penal Law § 120.05 [3]). As discussed in more detail below, none of these charges can be sustained.

There is no dispute about the standard for reviewing the sufficiency of the evidence before the Grand Jury. Legally sufficient evidence means "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof’ (CPL 70.10; see, People v Galatro, 84 NY2d 160). The existence of inferences other than that of guilt is irrelevant at this stage, since the task of choosing among conflicting inferences is for the Grand Jury, and the only question for review is whether the guilty inference could rationally have been drawn (People v Deegan, 69 NY2d 976).

Even under this minimally demanding standard, the petit larceny and criminal possession of stolen property charges do not pass muster. A person commits larceny "when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof’ (Penal Law § 155.05 [1]). The "taking” element of larceny may be "satisfied by a showing that the thief exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner’s continued rights” (People v Jennings, 69 NY2d 103, 118). Where asportation of the object is involved, the item need not be completely removed from the premises as long as there has been some physical movement and an exercise of dominion and control that is inconsistent with the owner’s rights (People v Olivo, 52 NY2d 309). In that event, the "taking” element of larceny may be inferred from any surrounding circumstances indicative of such an exercise (id., at 318-319).

Here, the evidence against defendant showed that he was seen on campus carrying a lounge chair apparently belonging to the University. He had not removed the chair from the University grounds and, more importantly, he had committed no act that could be construed as an exercise of dominion and control inconsistent with the owner’s rights. Nor was there evidence from which such an exercise could be inferred. To the contrary, the only evidence before the Grand Jury was that the lounge chair defendant carried was being taken to another part of the University campus for use in a different dormitory. Thus, neither defendant’s conduct in carrying the chair away from its usual location nor his stated plan for the chair was inconsistent with its owner’s rights. Notably, even if the Grand Jury chose to disregard the exculpatory portions of defendant’s statements to the campus police, it could not rationally have drawn an inference that the statutory "taking” element was satisfied, since there was no other evidence in the case to support such an inference.

For similar reasons, the element of larcenous intent was not established. Larceny requires the specific intent to "deprive” another of property or to "appropriate” another’s property to oneself or to a third person (Penal Law § 155.05 [1]). "Deprive” and "appropriate” " 'connote a purpose * * * to exert permanent or virtually permanent control over the property taken, or to cause permanent or virtually permanent loss to the owner of the possession or use thereof ” (People v Jennings, supra, at 118, quoting Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 155.00, at 103 [1975]). Larceny’s intent requirement is not satisfied where the actor’s intent was only "temporarily to use property without the owner’s permission” (id., at 119).

The facts in this case demonstrate, at worst, a temporary misuse by defendant of a lounge chair that had been made available to the students residing in a particular dormitory. There was no basis for inferring an intention to exert "permanent or virtually permanent” control of the chair or to cause its permanent loss to the owner. Accordingly, the intent element of the crime was simply not present.

Since, as a matter of law, there was no showing that defendant stole property by committing a larceny, the criminal possession of stolen property charge must also fail. Similarly, the resisting arrest charge was unsupported because the essential element of probable cause to arrest was lacking (see, e.g., People v Peacock, 68 NY2d 675; People v Parker, 33 NY2d 669; People v Stephens, 100 Misc 2d 267). Not only was there no proof that a larceny was in progress, but the facts contemporaneously known to the officers — i.e., that defendant was moving a dormitory lounge chair from one part of the campus to the other — actually negated the possibility of that crime. Even if the officers had been skeptical about defendant’s story, their doubts would not have been sufficient by themselves to raise the level of suspicion to probable cause for an arrest. Indeed, it was apparent from the evidence before the Grand Jury that defendant was being "arrested” not because he was guilty of any perceived criminal conduct, but rather because his delays in furnishing identification exceeded the limits of the campus security officers’ patience. While defendant’s reluctance to cooperate may have been annoying to the officers, it certainly did not, under the circumstances, supply the necessary probable cause to believe that defendant was committing a crime.

Finally, the second degree assault count cannot be sustained because the sequence of events leading to the officer’s injury was the product of the officers’ own misconduct. "A person is guilty of assault in the second degree when * * * [w]ith intent to prevent a peace officer * * * from performing a lawful duty, he causes physical injury to such peace officer” (Penal Law § 120.05 [3]). Although probable cause to arrest is not a required element (see, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 205.30, at 503), there must still be a showing that the underlying police conduct was lawful.

Here, the campus security officers initially acted lawfully when they stopped defendant to inquire about the lounge chair he was carrying (see, People v Hollman, 79 NY2d 181; People v De Bour, 40 NY2d 210). Further, they were within the scope of their lawful duties when they asked defendant for identification and continued to press him when he verbally resisted (see generally, People v Hollman, supra). However, the officers’ conduct crossed the line and entered the realm of illegality when, after defendant agreed to show them his identification papers, they nonetheless decided to "frisk” him and then attempted to place him under "arrest” because of his resistance to this patently unjustified intrusion. The ensuing foot pursuit that led to the officer’s injury was equally improper, since there was not even a "reasonable suspicion” at that point that defendant had been engaged in criminality (see, People v Martinez, 80 NY2d 444).

In sum, it cannot be said that the injured campus security officer was engaged in the performance of any "lawful duty” when she chased defendant into a gorge, grabbed at his ankle and fell onto a concrete abutment. By the time the chase occurred, the confrontation had been transformed from a legitimate investigative stop into a contest of wills inspired by nothing more than the officers’ own unchecked choler. Such a sequence of events is an inappropriate predicate for a second degree assault charge under Penal Law § 120.05 (3) (see, e.g., People v Vest, 11 AD2d 1080).

While the impulse to seek retribution is understandable when a law enforcement officer has been frustrated, taunted and even injured, the Grand Jury exists to ensure that the mechanism of criminal prosecution is not abused. In this case, the protection usually afforded by the Grand Jury failed and defendant, a college student caught in a foolish prank that escalated out of control, has been subjected inappropriately to criminal indictment. Since the evidence before the Grand Jury was insufficient to establish prima facie every required element of the charged crimes, the proper course would be for us to intervene by dismissing the indictment. Inasmuch as the majority has elected not to do so in this case, I dissent and cast my vote to reverse.

Chief Judge Kaye and Judges Simons, Bellacosa, Smith and Levine concur with Judge Cipakick; Judge Titone dissents and votes to reverse in a separate opinion.

Order affirmed.

       The People did not even adduce proof as to the identity of the chair’s owner or the lack of such owner’s permission to move the chair from one part of the campus to another. This defect in proof is alone sufficient to nullify the indictment’s larceny charge.


author: Titone, J. Bellacosa, J.

text:
    [655 NE2d 146, 631 NYS2d 105]
    The People of the State of New York, Respondent, v Roy C. Letterlough, Appellant.
    Argued April 26, 1995;
    decided June 13, 1995

      POINTS OF COUNSEL

      Kent V. Moston, Hempstead, Matthew Muraskin, Brian P. Schechter and Miro F. Cizin for appellant.
    The special condition of probation requiring appellant to affix to the license plates of any vehicle he may drive a fluorescent sign stating "convicted dwi” violates Penal Law § 65.10, the Federal and State Constitutions, and is beyond the jurisdiction of the County Court to impose. (People v Callahan, 80 NY2d 273; People v Fuller, 57 NY2d 152; People v Morse, 62 NY2d 205; People v Francabandera, 33 NY2d 429; People v Braun, 177 AD2d 981; People v Sztuk, 126 AD2d 950; People v James R. O., 36 AD2d 828; People v Green, 114 Misc 2d 339; Board of Educ. v Barnette, 319 US 624; Wooley v Maynard, 430 US 705.)

      Denis Dillon, District Attorney of Nassau County, Mineóla (Judith R. Sternberg and Peter A. Weinstein of counsel), for respondent.
    I. Defendant has not preserved any of his claims for appellate review and, because of his failure to raise the issues below, he has not provided this Court with a record adequate for review. (People v Proctor, 79 NY2d 992; People v Green, 54 NY2d 878; People v Callahan, 80 NY2d 273; People v Ingram, 67 NY2d 897; People v Oliver, 63 NY2d 973; People v Thomas, 50 NY2d 467; People v Allen, 69 NY2d 915; People v Fleming, 70 NY2d 947; People v Miles, 61 NY2d 635; People v Kinchen, 60 NY2d 772.) II. There is no statutory or constitutional impediment to the condition of probation imposed by the County Court. (Wooley v Maynard, 430 US 705; United States v Carlston, 562 F Supp 181; United States v Anderson Co., 698 F2d 911; People ex rel. Kornaker v Meloni, 134 Misc 2d 444, 134 AD2d 868, 70 NY2d 616; People v Thompson, 83 NY2d 477; People v Broadie, 37 NY2d 100, 423 US 950.)

      Lysaght, Lysaght & Kramer, P. C, Lake Success (Raymond E. Kerno of counsel), for Long Island Mothers Against Drunk Driving, amicus curiae.

    The special condition of probation, requiring appellant to affix to any vehicle driven by him a fluorescent sign stating that he has previously been convicted of driving while intoxicated should be upheld, where the sentence imposed was both lawful and appropriate, and where the special condition did not violate any statutory provision or constitutional law principle. (People v Allen, 69 NY2d 915;
      People v Iannelli, 69 NY2d 684, 482 US 914; Wooley v Maynard, 430 US 705; United States v Carlston, 562 F Supp 181; Blanton v North Las Vegas, 489 US 538; United States v Anderson Co., 698 F2d 911.)
   OPINION OF THE COURT

Titone, J.

Our sentencing courts continually confront the important task of fashioning conditions of probationary sentences to rehabilitate those who have committed the often-habitual crime of driving while intoxicated. This case presents the Court with the question whether, as a condition of probation, a court may order the defendant to affix to the license plate of any vehicle he drives a fluorescent sign stating "convicted dwi.” We answer this question in the negative both because the condition is not reasonably related to defendant’s rehabilitation, and, more generally, because, in the absence of more specific legislation, such a condition is outside the authority of the court to impose.

On December 10, 1991, defendant Roy Letterlough pleaded guilty to operating a motor vehicle while under the influence of alcohol as a felony (see, Vehicle and Traffic Law § 1192 [2]). This was defendant’s sixth alcohol-related driving offense since 1971. Pursuant to the negotiated plea agreement, defendant was sentenced to five years’ probation and fined $500, his license was revoked (see, Vehicle and Traffic Law § 1193 [2]), and he was ordered to obtain alcohol treatment as directed by the Department of Probation. As an additional condition not part of the initial plea agreement, the sentencing court directed that if the Department of Motor Vehicles should reissue a driver’s license to defendant during the probationary period, he must affix to the license plates of any vehicle he drives a fluorescent sign stating "convicted dwi.” That condition specifically provides:

"16. DWI LICENSE PLATE ADDITIONS: If for any reason the N.Y. State Department of Motor Vehicles (DMV), or any other entity, restores full or conditional limited driving privileges to the Probationer prior to the full expiration of the term of Probation imposed by this Court, Probationer agrees as follows: He/she shall order and have installed at his/her sole cost and expense, within seven (7) days of such license reinstatement, two (2) legible (day and night) metal, wood, plastic, or other durable and waterproof signs or plaques, affixed to the top or bottom of both the front and rear license plate of the vehicle which he/she may be driving (including owned, borrowed, leased, rented, etc.). Said signs shall state in fluorescent, large block letters 'CONVICTED DWI.’ Such signs shall be the full length of the license plate, and one-half (1/2) the width. Said signs shall be inspected and approved by the Probation Department within fourteen (14) days of such reinstatement, and at any time thereafter: they shall remain in place for the entire duration of the term of Probation imposed by this Court. Failure to install them, removal without permission, driving without them, or a police stop for any reason also noting the absence of the signs, shall be grounds— if proven in court — for a determination of VIOLATION OF PROBATION and immediate resentencing” (emphasis in original).

As to this condition, the court stated:

"I am not requiring that [the sign] be maintained permanently while others drive that vehicle, only when this individual drives that vehicle and he may design, should that contingency arise, any sort of a metal clip system so that it can be removed if anyone else in his . family or friends decide they wish to drive his car with his consent.
"I only wish to warn the public of this and only have this sign apply to this Defendant” (emphasis added).

Defense counsel argued generally that the condition violated the State and Federal Constitutions, but declined an offer to withdraw his plea. In closing, the court stated: "This gentleman is 54 years of age and I do not wish to be the one that opens a newspaper and sees that this gentleman has caused an accident that has taken an innocent person’s life because I did not do something that either warns the public or treated his problem. I hope to be doing both.” The prosecution informed the court that defendant did not waive his right to appeal as part of the plea and the court specifically invited defendant to challenge the legality of the special condition on appeal.

The Appellate Division affirmed. Citing two Florida cases (Goldschmitt v State, 490 So 2d 123; Lindsay v State, 606 So 2d 652), the Court found "no statutory or constitutional violation in the imposition of [the special condition requiring defendant to place the fluorescent signs on his car]” (205 AD2d 803, 804). A Judge of this Court granted defendant’s application for leave to appeal as well as a stay of enforcement of the disputed special condition pending the determination of the appeal. Defendant here challenges the legality of that special condition, arguing, in part, that the court was not empowered to order it under Penal Law § 65.10.

Our analysis of the propriety of the special license plate condition necessarily begins with a review of Penal Law § 65.10 which grants courts the authority to fashion conditions on a sentence of probation. The statute directs, as a general proposition, that "conditions of probation * * * shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so” (Penal Law § 65.10 [1]). The statute provides that the court "shall, as a condition of the sentence, consider restitution or reparation and may, as a condition of the sentence, require that the defendant” engage in or refrain from certain enumerated types of conduct (Penal Law § 65.10 [2]). The list includes directives to "[a]void injurious or vicious habits,” "[r]efrain from frequenting unlawful or disreputable places,” maintain suitable employment, undergo medical or psychiatric treatment, participate in alcohol or substance abuse programs, support dependents and meet family responsibilities, make restitution or reparation, perform community service, if under 21, reside in a suitable location and contribute to his or her own support, post bond or security for performance of any condition, and observe conditions as specified in an order of protection (see, Penal Law § 65.10 [2] [a]-[k]). Additionally, because the conditions of probationary sentences must be tailored to the particular defendant’s case, and an exhaustive list of behavioral conditions would therefore have been impossible, the statute includes a catch-all provision which grants the court wide latitude to require the defendant to "[s]atisfy any other conditions reasonably related to his [or her] rehabilitation” (Penal Law § 65.10 [2] [l] [emphasis added]).

A probationary sentence " 'is a method of offering an offender an opportunity to rehabilitate himself, without institutional confinement, under the supervision of a probation officer and the continuing power of the court to use a more stringent sanction in the event the opportunity is abused’ ” (Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 65, at 204, quoting Commn Staff Notes, reprinted in Proposed NY Penal Law [Study Bill, 1964 Senate Int 3918, Assembly Int 5376] § 25.00, at 260).

The overriding purpose of imposing a sentence of probation in lieu of other punishment is to rehabilitate "the convicted criminal by giving him appropriate treatment, in order to * * * return him to society so reformed that he will not desire or need to commit further crimes” (1 LaFave and Scott, Substantive Criminal Law § 1.5, at 32-33). As has been aptly noted, "[i]t is perhaps not entirely correct to call this treatment 'punishment,’ as the emphasis is away from making [the probationer] suffer and in the direction of making his [or her] life better and more pleasant” (id., at 33 [emphasis added]). The utility of rehabilitation as a vehicle for preventing criminal behavior "rests upon the belief that human behavior is the product of antecedent causes, that these causes can be identified, and that on this basis therapeutic measures can be employed to effect changes in the behavior of the person treated” (id., at 33). The focus of rehabilitation is primarily on healing the individual. Indeed, when a criminal act stems from a substance abuse problem, the use of sentencing conditions as a tool of rehabilitation is especially meaningful, since there are specific therapeutic options that may well ameliorate the underlying condition and thereby remove the condition associated with the criminal behavior (see, e.g., People v Berkley, 152 AD2d 788).

Penal Law § 65.10’s delineation of typical probationary sentences reflects this rehabilitative aim. Significantly, the conditions enumerated in Penal Law § 65.10 (2) (a)-(k) are rehabilitative in nature, focusing on restoring the probationer to the status of a law-abiding member of the community. None have an inherently punitive aim, although many — such as those requiring a probationer to make restitution, refrain from frequenting "disreputable places” or to participate in an alcohol or substance abuse program — impose unpleasant restrictians on the probationer’s freedom and thus may have incidental punitive and deterrent effects (see, Brilliant, The Modern Day Scarlet Letter: A Critical Analysis of Modem Probation Conditions, 1989 Duke LJ 1357, 1372, and n 94 [probation conditions may serve punitive, rehabilitative and deterrent functions]).

Despite the inherent overlap and the difficulty in drawing lines between rehabilitative and punitive or deterrent sanctions, the Legislature did not mention punishment or deterrence as goals to be obtained through the imposition of probationary conditions pursuant to Penal Law § 65.10. Rather, Penal Law § 65.10 quite clearly restricts probation conditions to those reasonably related to a defendant’s rehabilitation (Penal Law § 65.10 [2] [l]). Given the singular focus of the statute on rehabilitation of the individual, the Legislature clearly intended to authorize conditions of probation that are fundamentally "rehabilitative” in the sense of that word that distinguishes it from the societal goals of punishment or deterrence (see, 1 LaFave and Scott, Substantive Criminal Law § 1.5, at 31, 33). Those goals are better served by other, more severe criminal sanctions, such as incarceration, and are reserved for society’s more serious offenders. By contrast, probation is a criminal remedy generally considered useful only in cases where the offender does not present "a serious threat to the public” and where "imprisonment is not required as a deterrent to others” (Commn Staff Notes, reprinted in Proposed NY Penal Law [Study Bill, 1964 Senate Int 3918, Assembly Int 5376] § 25.00 [1], at 261).

The degree of threat this defendant posed to society and whether he was an appropriate candidate for probation, given his criminal history, are questions not before this Court. Rather, our inquiry must focus solely on whether, having determined that probation was the appropriate criminal sanction for defendant, County Court acted within the parameters of the probationary sentencing structure authorized by Penal Law § 65.10. Here, the court appropriately directed, as a means of rehabilitating defendant, that he participate in a substance abuse program under the direction of the Probation Department. Such a measure is clearly geared towards rehabilitating a probationer because it relates to the correction of the underlying substance abuse problem at the root of defendant’s criminal behavior. However, the same may not be said of the "convicted dwi” sign condition. As the sentencing court made clear, its true design was not to advance defendant’s rehabilitation, but rather to "warn the public” of the threat presented by his presence behind the wheel. Beyond that, public disclosure of a person’s crime, and the attendant humiliation and public disgrace, has historically been regarded strictly as a form of punishment (see generally, Brilliant, The Modem Day Scarlet Letter: A Critical Analysis of Modern Probation Conditions, op. cit.). Undeniably, the condition of the DWI license plate sign imposed here was in large part intended to punish defendant, but the Legislature has determined that that purpose is better served by other penal sanctions not authorized by section 65.10.

The punitive and deterrent nature of the disputed "scarlet letter” component of the probationary conditions here overshadows any possible rehabilitative potential that it may generate and thus is out of step with the various other devices specifically authorized by Penal Law § 65.10 (2) (a)-(k). Indeed, the public disclosure component of the order of conditions placed on defendant here may even negate any positive effect derived from the imposition of other therapeutic conditions, such as the requirement that defendant participate in an alcohol treatment program (see, People v Johnson, 174 111 App 3d 812, 528 NE2d 1360; see also, 1 LaFave and Scott, Substantive Criminal Law § 1.5 [b], at 37). Notably, the forced advertisement of a probationer’s DWI conviction is inconsistent with the need for confidentiality which is ordinarily deemed a mandatory component of such treatment programs (see, 15 NYCRR 134.16).

More importantly, the detailed condition imposed here is objectionable because in fashioning it the trial court invaded the legislative domain. Under this State’s jurisprudence, the creation of punishment for crimes rests within the realm of the Legislature (People v Byrne, 77 NY2d 460, 467-468). A sentencing court simply cannot impose forms of punishment not authorized by statute for a particular crime. Accordingly, the obvious and overriding punitive component of the disclosure order here renders the condition one that must be prescribed by the Legislature.

Even if viewed as a measure to protect the public through warnings, the condition imposed here is one requiring legislative involvement because of the obvious need for State-wide uniformity and the kind of policy choices that only an elected Legislature can make (see, e.g., Sexual Offender Registration Act [Megan’s Law], L 1994, ch 133 [New Jersey] [authorizing disclosure of a released defendant’s prior convictions under certain controlled conditions]). Indeed, the statutory precedent from other jurisdictions that the People cite (see, e.g., Iowa Code Annot § 321J.4; Minn Stat Annot § 168.041 [6]; Ohio Rev Code Annot § 4503.231) serves only to demonstrate that the public disclosure of a probationer’s conviction as a method of providing deterrence and warning to the public is a reasonable policy choice that can be made after testing through the deliberative process of a legislative body.

Here, in addition to the more general need for uniformity and State-wide standards, there is a more particularized need for legislative involvement because of the safety and regulatory concerns that are raised by the notion of using license plates or vehicle accessories to advertise an individual’s criminal history. Similar concerns have led the Legislature to authorize the Commissioner of the Department of Motor Vehicles to design the form, content and method of attachment of license plates, equipment and accessories used upon motor vehicles (see, Vehicle and Traffic Law §§ 300, 401 [3]; § 402 [1], [2]; see also, § 215 [b]). The Legislature has specifically directed that "[n]umber plates shall be kept clean and in a condition so as to be easily readable and shall not be covered by glass or any plastic material, and the view thereof shall not be obstructed by any part of the vehicle or by anything carried thereon” (Vehicle and Traffic Law § 402 [1] [emphasis supplied]). Manifestly, a judicial order to attach a special plate to the one prescribed by the Commissioner runs afoul of this directive and creates a very real impediment for traffic and law enforcement authorities who must depend on the readability of the information displayed on vehicular license plates. Moreover, a judicial order that gives the convicted motorist and the Probation Department discretion to determine the material and fastening to be used undermines the legislative command to use "reflectorized material according to specifications prescribed by the commissioner” (Vehicle and Traffic Law § 401 [3]) and gives rise to potential safety problems, including damage or injury caused by disengagement of the sign on the highway. As a practical matter, it is difficult to imagine how this or any defendant would safely construct the sign, which the court directed should be made of metal, wood or plastic and fastened by some type of "metal clip system.” The distraction occasioned by special judicially ordered "scarlet letter” plates and the reactions of other motorists upon seeing them also poses a potential safety threat.

Notably, although it was aware of the possibility of using special license plates (see, 1983 NY Senate Bill S 4861), our Legislature has chosen instead to address the public safety problem of recidivist drunk drivers by authorizing other types of law enforcement tools. A recent enactment authorizes courts to order a defendant, as a condition of probation, to install an "ignition interlock device” that attaches to the vehicle’s steering mechanism and ignition (Vehicle and Traffic Law § 1198). The driver must then breathe into a device that chemically measures alcohol content both before the car can be started and at regular intervals thereafter. Clearly, no such legislative initiative would have been necessary if this type of condition could have been imposed by the courts on a case-by-case basis under Penal Law § 65.10’s existing catch-all provision. By parity of reasoning, the special license-plate condition should be available as a sentencing tool only after similar legislative deliberation and study. Additionally, when this statute was passed in 1988 (L 1988, ch 713), it specifically provided that use of the ignition interlock system may be directed as a condition of probation where the court determines that "such a condition is necessary to ensure the public safety” (Vehicle and Traffic Law § 1198 [3] [d]). Given that the Legislature explicitly added the promotion of public safety as a goal to be achieved by this new law-enforcement tool, the reference in the probation statute’s catch-all provision to the lone goal of rehabilitation renders County Court’s stated public safety motivation for imposing the special condition improper.

While innovative ideas to address the serious problem of recidivist drunk driving are not to be discouraged, the courts must act within the limits of their authority and cannot overreach by using their probationary powers to accomplish what only the legislative branch can do. Simply put, the creation of new criminal penalties and the regulation of highway safety cannot be achieved through the simple expedient of the probation statute’s catch-all provisions (Penal Law § 65.10 [2] [l]). Since the "convicted dwi” sign ordered here cannot under any view be regarded as a rehabilitative measure authorized by Penal Law § 65.10, and the creation of such a penalty out of whole cloth usurps the legislative prerogative, the condition, however well-intended, cannot be upheld.

Accordingly, the order of the Appellate Division should be reversed, the plea vacated and the case remitted for further proceedings in accordance with this opinion.

Bellacosa, J.

(dissenting). On this appeal, defendant Letter-lough disputes the authority of the sentencing court to attach a special condition to his sentence of probation for his conviction, on his guilty plea, in satisfaction of his sixth driving while intoxicated arrest. The court required that, during the five-year probationary period, the license plates of any car Letterlough might drive during his probation should bear the sign "convicted dwi,” but only if Letterlough pursued and obtained reinstatement of his automatically revoked license to drive.

The question of interpretation and application is whether this condition of probation is "reasonably related to [defendant’s] rehabilitation” (Penal Law § 65.10 [2] [l]) and, therefore, within the sentencing court’s authority under Penal Law § 65.10 (see also, Penal Law § 65.10 [1]). Notably, the sentencing court unquestionably had the power to jail Letterlough for up to four years for the latest in his long history of driving while intoxicated arrests and convictions (see, Vehicle and Traffic Law § 1193 [1] [c]; Penal Law § 70.00 [2] [e]). Instead, the sentencing court granted the defendant’s request for probation.

We are convinced that the rehabilitation-based sentencing authorization of Penal Law § 65.10 gives the court the discretionary authority, in a recidivistic case such as this, to impose and particularize the probation condition at issue. The punitive aspect and the alleged potential "stigma” or "heightened scrutiny” that could be associated with this reasonable condition should not create, in fact or as a matter of law, an absolute bar to such an appropriate, particularized rehabilitative probation condition.

Under the facts of this case, the sentencing court’s imposition of the challenged condition, after careful consideration of defendant’s woeful history and directly relevant circumstances, was "reasonably related” to defendant’s possible rehabilitation, consistent with Penal Law § 65.10. Rehabilitation and punishment are not mutually exclusive goals or concepts in these circumstances, either under the governing statute or under progressive penological theory and practice (see, generally, Filcik, Signs of the Times: Scarlet Letter Probation Conditions, 37 Wash UJ Urb & Contemp L 291). Consequently, we respectfully dissent and vote to affirm the order of the Appellate Division, which had affirmed the sentencing court’s conditional probationary alternative to defendant’s incarceration.

The arrest, which has now led to this appeal, is defendant Letterlough’s sixth alcohol-related arrest. In 1971, Letterlough pleaded guilty to driving while impaired and received a fine; the arrest was for driving while intoxicated. In 1972, he again pleaded down to guilty to driving while impaired, after a driving while intoxicated arrest; his license was suspended and he paid an increased fine. In 1973, he was at it again and was again caught. He pleaded guilty to the driving while intoxicated charge and was fined $100. Another driving while intoxicated arrest in 1973 led to a guilty plea to the charge as a felony, for which he was sentenced to 90 days in jail. The record reflects no criminal adjudications from that point until 1985 when, after being arrested for driving while intoxicated, he pleaded guilty to the charge as a misdemeanor. He was placed on probation for three years and paid a $350 fine.

On September 21, 1991, Letterlough was arrested for the felony now at issue, when officers observed him driving his vehicle directly into oncoming traffic. He had a blood alcohol level of .139 and was charged with driving while intoxicated. On December 10, 1991, Letterlough pleaded guilty in Nassau County Court to operating a motor vehicle while under the influence of alcohol as a felony (Vehicle and Traffic Law § 1192 [2]; § 1193 [1] [c]). On January 22, 1992, County Court sentenced him to probation for five years and a fine of $500; his license was automatically revoked in accordance with Vehicle and Traffic Law § 1193 (2) (b). The court directed Letterlough to obtain alcohol treatment, should the Department of Probation require it (see, Penal Law § 65.10 [2] [e]). The sentencing court recited on the record that the incarceration and fines imposed on Letterlough for his many prior alcohol-related convictions had self-evidently not succeeded in rehabilitating his conduct and attitude about driving and drinking. The court thus attached the "convicted dwi” license plate condition to his probation. Letterlough accepted the special condition, under protest; expressly declined the court’s offer to withdraw his guilty plea; and appealed the sentence. Thus, he conjures up the apt axiom of one having one’s cake and eating it, too.

The Appellate Division affirmed, stating that no statutory or constitutional protection was violated by imposing the condition of probation (205 AD2d 803, 804). A Judge of this Court granted Letterlough this further appeal.

The Legislature gives sentencing courts their range and scope of permissible conditions of probation in Penal Law § 65.10: The sentence of probation " 'is a method of offering an offender an opportunity to rehabilitate * * * without institutional confinement, under the supervision of a probation officer and the continuing power of the court’ ” (Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 65, at 204 [emphasis added], quoting Penal Law § 65.00, and citing Commn Staff Notes reprinted in Proposed NY Penal Law [Study Bill, 1964 Senate Int 3918, Assembly Int 5376] § 25.00, at 260). Section 65.10 of the Penal Law lists a nonexclusive set of permissible conditions which can be imposed with probation, and then grants a catch-all authority to the court to impose conditions, so long as they are "reasonably related to [defendant’s] rehabilitation” (Donnino, op. cit, at 208; Penal Law § 65.10 [2] [l]; see also, Penal Law § 65.10 [1]).

"1. In general. The conditions of probation * * * shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him [or her] to do so.
"2. Conditions relating to conduct and rehabilitation. When imposing a sentence of probation * * * the court * * * may, as a condition of the sentence, require that the defendant: * * *
"(l) Satisfy any other conditions reasonably related to his [or her] rehabilitation” (emphasis added).

Defendant Letterlough argues that the specially suited probation condition imposed for his conviction and criminal record — affixing a "convicted dwi” notation to the license plates of any car he might drive during the probationary period — is not reasonably related to rehabilitation. Finding the condition "in large part” punitive, the majority conclude that the condition can serve no rehabilitative purpose (majority opn, at 266). We disagree. In the most practical terms, defendant might refrain from a given temptation and get in the habit of not drinking and driving, precisely because such a legend might subject Letterlough to heightened scrutiny by civilian drivers at risk and law enforcement personnel (compare, Ayres, Big Gains Are Seen in Battle to Stem Drunken Driving, NY Times, May 22, 1994, section 1, at 24, col 2 [Jay Winsten, director of the Harvard Center for Health Communication, stating that it is the knowledge that they are under close police scrutiny that has caused younger drivers to choose designated drivers]). Contrary to the majority’s view, on this basis alone, the statutory prerequisite is met, as applied to this case (see, Penal Law § 65.10 [2] [l]; [1]).

We respectfully disagree with the majority’s proposition that the probation condition at issue, under the circumstances of this case, cannot qualify as rehabilitative under the pertinent authorizing statute (majority opn, at 265). The sentencing environment does not abide a theoretical purity that would cabin "punishment” and "rehabilitation” into such discrete, mutually exclusive universes. In the complex world of penology, sociology and human behavior, one could hardly imagine the actuality of a purely rehabilitative condition, no less countenance a legal principle that would require such unattainable segregation. Indeed, the majority admit as much, recognizing the "inherent overlap and the difficulty in drawing lines between rehabilitative and punitive or deterrent sanctions” (majority opn, at 265). Notwithstanding this acknowledgement, the majority cursorily conclude that the Legislature could not have intended punishment or deterrence as goals of probation (majority opn, at 265). Curiously, they do so, even recognizing that certain enumerated probation conditions expressly authorized by the Legislature have "punitive and deterrent” effects (majority opn, at 264-265).

Contrary to the view propounded by the majority, the Legislature did not bar sentencing courts from imposing probation conditions which have some punitive or deterrent consequences. Moreover, the fine judicial line that the majority draws between "unpleasant restrictions on the probationer’s freedom * * * [that] have incidental punitive and deterrent effects,” which they find permissible (majority opn, at 264-265), and those which are "overshadow[ingly]” of a "punitive and deterrent nature” (majority opn, at 266) and, hence, impermissible, is simply unsupported by the Legislature’s broad grant of discretion to the sentencing court. One of the long-recognized, accepted goals of punishing unlawful behavior is to provide an incentive for the offender to reform and behave (Kelley, Sentenced to Wear the Scarlet Letter: Judicial Innovations in Sentencing — Are They Constitutional% 93 Dick L Rev 759, 780-781). The legislative sentencing prescription in Penal Law § 65.10 — that the condition be reasonably related to rehabilitation — contains no express or implied prohibition against some punitive or deterrent consequence. Thus, the punishment and rehabilitative features of this probation condition may lawfully coexist.

Instead, the rule emanating from this case effects a sentencing regression, which is further compounded by restricting the sphere of permissible rehabilitative conditions to only those which would address and cure defendant’s alcoholism (majority opn, at 264). Curbing alcoholism or drinking — the "root” causes of defendant’s persistent criminal conduct — is not the only "rehabilitative” goal under Penal Law § 65.10. Rather, when one addresses the conduct at issue here — defendant’s drinking and driving — one immediately and naturally recognizes that a reasonable condition which might induce defendant to refrain from driving while intoxicated is, in part at least, "rehabilitative” within the meaning of Penal Law § 65.10 (see, Filcik, Signs of the Times: Scarlet Letter Probation Conditions, 37 Wash UJ Urb & Contemp L 291, 307-308 [stating that where statutes provide that sentencing courts may impose conditions "reasonably related to (defendant’s) rehabilitation,” "(t)his * * * allows the trial judge to create and impose individualized conditions, such as 'scarlet letter’ conditions,” with the court’s discretion being "limited only by the 'reasonableness’ requirement” — namely, that the special conditions be "careful(ly) plann(ed) to meet the defendant’s needs”; citing as examples of such reasonable conditions the "heightened scrutiny” type of conditions — publishing apologies in the newspaper, wearing taps on the bottom of shoes, affixing "DWI” bumper stickers to cars]; Kelley, Sentenced to Wear the Scarlet Letter: Judicial Innovations in Sentencing— Are They Constitutional?, 93 Dick L Rev 759, 780 [stating that "(t)he theory of rehabilitation focuses on providing the offender with appropriate treatment in order to modify his antisocial behavior into acceptable conduct” (emphasis added)]).

Penal Law § 65.10 even specifies that conditions of probation "shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him [or her] to do so” (Penal Law § 65.10 [1]). Applied to the instant case, that expansive, preambled direction is not about the disease of alcoholism, but about criminal conduct and prevention of it by changing criminal propensities. The Penal Law does not criminalize drinking; nor is it a crime to have a drinking problem. The crime is driving while intoxicated. Consequently, this defendant particular, narrowly tailored condition should unquestionably qualify on this record as "reasonably related” to rehabilitation and reasonably necessary to help defendant start being "law abiding” (Penal Law § 65.10; see also, Kelley, Sentenced to Wear the Scarlet Letter: Judicial Innovations in Sentencing — Are They Constitutional?, 93 Dick L Rev 759, 781 [stating "(w)arning signs act as a 'Pavlovian’ behavior modification technique. Each time the offender encounters the sign, he is cognizant of his activity and the illegality of that behavior. The sign reinforces upon the offender that this behavior is unacceptable * * * (and that) society( ) (is) determin(ed) to see this behavior condemned”]). The majority expression and analysis inappropriately segregate the prohibited combined drinking and the driving, thus ignoring the criminal component to which the rehabilitative probation condition is reasonably directed.

The sentencing court’s decision in the instant case is buttressed by the fact that other, more traditional, sanctions failed repeatedly with this defendant. We know he was caught for six driving while intoxicated incidents over the last 20 years. How often he has driven under the influence of alcohol without being caught and taken off the road is unknown. The majority pay little heed to the defendant’s felony-level conduct and six-time driving-while-intoxicated arrests as not constituting " 'a serious threat to the public’ ” (majority opn, at 265). To the contrary, however, defendant’s criminal record is certainly not very reassuring to the public or to a sentencing Judge, who wished to retain some measure of control while allowing defendant to stay out of jail (see, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 65, at 204 [noting that probation subjects defendant to the " 'continuing power of the court’ ”]). Indeed, the sentencing court noted that the usual and available sanctions had not succeeded in altering defendant’s illegal and antisocial dangerous drinking and driving habits. The defendant nitpicks at the court’s statement on the record, arguing that the court was motivated by public safety concerns. First, there is nothing inherently wrong about that. Besides, even if this part of the court’s rationale were questionable, the court also explicitly recited defendant’s failure at all other rehabilitative modes of sentencing, including jail and fines. The court then stated that it imposed the special condition as a means to help defendant overcome his dangerous drinking and driving problem and propensity. That is record-based satisfaction of the statute’s rehabilitation hook.

Our rationale, which would endorse the sentencing court’s particular sentence under these circumstances, also finds support in some precedents from other jurisdictions. In Ballenger v State (210 Ga App 627, 628-629, 436 SE2d 793, 794-795), the Georgia Court of Appeals upheld the trial court’s imposition, as a condition of probation, that defendant wear a fluorescent pink plastic bracelet imprinted with the words "d.u.i. convict.” The court’s ruling rested predominantly, if not exclusively, on the rehabilitative aspect of the condition:

"Being jurists rather than psychologists, we cannot say that the stigmatizing effect of wearing the bracelet may not have a rehabilitative, deterrent effect on [defendant]. * * * Certainly the fines and/or incarceration this defendant received in connection with his numerous previous driving under the influence and habitual violator convictians did not succeed in rehabilitating him” (210 Ga App, at 629, 436 SE2d, at 794-795).

There, as here, the repeated offenses by defendant and the history of traditional sanctions that simply did not succeed in rehabilitating him warranted imposition of the more innovative rehabilitative condition (contrast, People v Johnson, 174 111 App 3d 812, 528 NE2d 1360 [invalidating condition that defendant place mug sheet and apology in paper where defendant had no prior criminal record]).

The Florida District Court of Appeal has also held that potentially stigmatizing probation conditions are not fundamentally contradictory to rehabilitative goals (Lindsay v State, 606 So 2d 652; Goldschmitt v State, 490 So 2d 123). In Lindsay v State (supra), the court upheld, as a condition of probation, the requirement that defendant place an ad in the newspaper consisting of defendant’s mug shot, name, and caption "dui — convicted” (606 So 2d, at 654, 656-657, supra). The court specifically rejected defendant’s argument that the potential resulting stigmatization contravened the rehabilitative purpose of the probation statute. To the contrary, the court found that the "deterrent, and thus the rehabilitative, effect of punishment may be heightened if it 'inflicts disgrace and contumely in a dramatic and spectacular manner’ ” (id., at 656, quoting United States v Anderson Co., 698 F2d 911, 913 [8th Cir]; see also, Goldschmitt v State, 490 So 2d 123, supra [Florida District Court of Appeal, upholding as "rehabilitative” a condition of probation that defendant’s vehicle bear a bumper sticker reading "convicted d.u.i. — restricted license”]).

While these courts have upheld conditions far more intrusive than the one at issue here, and while we do not broadly approve such sanctions, the reasoning remains instructive. These cases support the core rationale that (1) any condition of probation must "bear some relationship to the nature of the offense of conviction and should have some reasonable rehabilitative basis” (Goldschmitt v State, 490 So 2d, at 125, n 3, supra); and (2) punitive aspects of a probation condition are not, as a matter of law, fundamentally contradictory to rehabilitative goals.

Moreover, the instant case does not present the situation where an overly broad, peculiarly personal, or onerous condition has been imposed (see, e.g., People v Hackler, 13 Cal App 4th 1049, 16 Cal Rptr 2d 681 [invalidating probation condition requiring defendant to wear T-shirt with bold statement of his felony theft probationer status at all times while defendant was outside his living quarters]). The probation condition at issue here affects defendant only in the definitive and distinctive category of human activities to which defendant’s conviction pertains, namely, operating a motor vehicle if he gets his license back. Only if defendant pursues reinstatement of his driving privileges during the probationary period does the condition of probation ever spring into being. Thus, this condition of probation does not encompass areas of privacy unrelated to the offense; nor does the condition impose constraints on some basic right or ability to function in society (contrast, People v Hackler, supra). The condition, tailored directly to the activity of this defendant’s repeated illegal and antisocial conduct, is designed to and may assist him in starting to lead a more "law-abiding life” (see, Penal Law § 65.10 [1]).

In stark contrast to the empirically irrefutable threat posed by drunk drivers, the probation condition at issue poses none of the danger to the public posited by the majority (majority opn, at 267, 268). The spectre of flying accessories or distractive special plates, in any event, hardly compares to the dangers from incorrigible drunk drivers, who are responsible for causing an alcohol-related death every 20 minutes (see, Landstreet, The Drinking Driver: The Alcohol Safety Action Programs, at 3-4 [1977]). In jurisdictions that have expressly authorized comparable probationary conditions, or where the courts have upheld such conditions under general grants of authority, these speculative concerns have been given no credence. Moreover, they simply have no bearing on the question of the discretionary authority of sentencing courts to rule in accordance with legislatively delegated power.

Most importantly, too, the issue is not whether each of us would personally favor or impose such a condition if acting as a sentencing Judge. That is simply not the question before us. The only issue we face is whether the Legislature has allowed sentencing Judges discretion in an appropriate case to impose such conditions. We conclude that it did and that, under these particularly egregious circumstances, the sentencing court did not abuse its discretion.

In using generously appropriate discretionary phraseology, the Legislature contemplated that sentencing courts would fashion conditions of probation based on the particular circumstances of a defendant’s record. Defendant’s per se challenge, upheld by this Court, contradicts that legislative mandate and, instead, handcuffs the sentencing courts, including in cases where traditional sentencing approaches have been repeatedly tried and failed. If statutory construction compels such a result, then the solution for the future is simple: jail. Thus, defendant’s victory here is a defeat for progressive sentencing for defendants down the road. Jail and regressive sentencing practices are clearly not what the Legislature had in mind by enacting Penal Law § 65.10 (cf., Mem of NY City Mayor Koch supporting L 1978, ch 500 [statute regarding conditioning probation on performing community service work], Bill Jacket, L 1978, ch 500 [noting concerns motivating and justifying such condition, including "current lack of alternatives to short but costly jail sentences”]).

The majority nullify the probation condition at issue on absolute, per se, matter of law bases and diminish the authority invested in sentencing courts by the Legislature. The striking irony is that while the Legislature in this instance has expanded judicial sentencing discretion (contrast, Penal Law § 65.10 [1] [2], [l] with Penal Law § 70.04 [2], [3]; Penal Law § 70.06 [2], [4]), the Judiciary itself withdraws from sentencing courts the discretionary flexibility to impose reasonably related conditions to probation that the sentencing court and Appellate Division found reasonably necessary to assist or insure a law-abiding turnaround by this defendant.

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

Order reversed, defendant’s plea vacated and case remitted to County Court, Nassau County, for further proceedings in accordance with the opinion herein.

      . Defendant’s failure to argue at sentencing that the County Court was not empowered to impose the special DWI license plate condition under Penal Law § 65.10 does not impede our review of that claim because it involves the " 'essential nature’ of the right to be sentenced as provided by law” (see, People v Fuller, 57 NY2d 152, 156).

      . Indeed, when the Legislature enacted Penal Law § 65.10 in 1965 (L 1965, ch 1030), it was likely influenced by the then-prevailing penological premise that individuals could be rehabilitated or therapeutically "cured” of their criminal tendencies and that the remedy of probation — intended solely for less serious offenders — was meant to bring about such rehabilitation. Importantly, Penal Law § 65.10 is a near replica of the 1962 enactment of Model Penal Code § 301.1, which is contained in the part entitled "Treatment and Correction” (emphasis added).

      . The dissent’s suggestion that the punitive and deterrent features of the special condition here are warranted in light of defendant’s recidivism and the failure of prior criminal sanctions (dissenting opn, at 276) is more appropriately directed at the propriety of the mode of punishment selected here — e.g., probation versus incarceration — and the punitive goals sought to be achieved thereby.

      . See, Hawthorne, The Scarlet Letter (Bantam Classic ed 1986).

      . Significantly, there was an initiative in our own State Legislature to consider the use of special license plates to identify individuals formerly convicted of DWI offenses. Under Senate Bill S 4861 (1983), the Commissioner of Motor Vehicles would have been directed "to study and investigate [the] feasibility” of that proposal. The measure was not adopted.

      . For example, the Commissioner is required to "adopt standards and specifications * * * for the size, design and mounting of [the official] slow-moving vehicle emblem” (Vehicle and Traffic Law § 375 [36] [a] [emphasis added]; see also, 15 NYCRR 68.5) and to regulate the use and placement on vehicles of driving-school or student-driver signs (see, 15 NYCRR 76.11 [d] [3]).

      . While we are undoubtedly aware of the obvious dangers caused by drunk drivers, the attachment of a "convicted dwi” sign to a car also presents real public safety concerns which require legislative regulation and do not deserve to be lightly dismissed (see, dissenting opn, at 277).


author: Levine, J.

text:
    [655 NE2d 647, 631 NYS2d 551]
    Reform Educational Financing Inequities Today (R.E.F.I.T.) et al., Appellants, v Mario M. Cuomo, as Governor of the State of New York, et al., Respondents.
    Argued January 3, 1995;
    decided June 15, 1995

      POINTS OF COUNSEL

      Kay Collyer & Boose, New York City (Daniel P. Levitt of counsel), and Cooper, Sapir & Cohen, P. C, Hempstead (Robert E. Sapir of counsel), for appellants.
    I. Levittown’s "gross and glaring inadequacy” caveat may be satisfied by proof of sufficiently changed circumstances, and does not require proof that students are denied some undefined "minimum” level of education. II. The demonstrated worsening of circumstances since 1982 supports the conclusion that the school finance system now violates the State Constitution’s Education Article. (Baker v Carr, 369 US 186.) III. If Levittown is now read to require proof that some minimum level of education has been denied, rather than proof of sufficiently changed conditions, the 12-year-old decision should be modified or overruled. IV. Should the school finance scheme, with its escalating inequities, somehow pass muster under the Education Article, this Court should find that it violates the State Constitution’s Equal Protection Clause, modifying or overruling Levittown if necessary. (San Antonio School Dist. v Rodriguez, 411 US 1; Matter of Levy, 38 NY2d 653, 429 US 805; Papasan v Attain, 478 US 265; People v Barber, 289 NY 378; Immuno AG. v

      Moor-Jankowski, 77 NY2d 235; People v Dunn, 77 NY2d 19; People v Harris, 77 NY2d 434.)

      Dennis C. Vaeco, Attorney-General, Albany (Daniel Smirlock, Jerry Boone and Peter H. Schiff of counsel), for Edward V. Regan and others, respondents.
    I. Plaintiffs’ allegations as to the disparities in the educational opportunities offered by wealthier and poorer school districts do not state a claim for relief under the Education Article of the State Constitution. (Judd v Board of Educ., 278 NY 200.) II. The complaint fails to state a cause of action for a violation of the State Equal Protection Clause. (San Antonio School Dist. v Rodriguez, 411 US 1; Under 21 Catholic Home Bur. v City of New York, 65 NY2d 344; Golden v Clark, 76 NY2d 618; Plyler v Doe, 457 US 202; Kadrmas v Dickinson Pub. Schools, 487 US 450; Schneider v Sobol, 76 NY2d 309; Flacke v Onondaga Landfill Sys., 69 NY2d 355; Maresca v Cuomo, 64 NY2d 242.)

      DeGraff, Foy, Holt-Harris & Medley, Albany (Robert E. Biggerstaff and Glen P. Doherty of counsel), for New York State Association of Small City School Districts, Inc., amicus curiae.

    I. The great disparities in levels of resources available among the school districts for support of educational programs and facilities satisfy Levittown’s "gross and glaring inadequacy” proviso. II. There are great disparities among schools with respect to student needs; schools with high concentrations of poverty and minority populations, including those in small cities, have much greater educational and social burdens which are not adequately funded; that failure results in loss of educational opportunities particularly for those students with the greatest needs; this failure constitutes a gross and glaring inadequacy in the State’s system of financing education. (McInnis v Shapiro, 293 F Supp 327, affd sub nom. McInnis v Ogilvie, 394 US 322; Burruss v Wilkerson, 310 F Supp 572, 397 US 44.) III. The Court should not hesitate to acknowledge that the present educational inequities and disparities satisfy the gross and glaring inadequacy proviso of Levittown since the educational community of experts have acknowledged the failure of the system to educate all children.

      Helen Hershkoff, New York City, Donald Shaffer, Arthur Eisenberg and Beth Haroules for the American Civil Liberties Union and others, amici curiae.

    I. New York’s school financing system violates Federal as well as State equal protection guarantees. (San Antonio School Dist. v Rodriguez, 411 US 1;
      Plyler v Doe, 457 US 202; Papasan v Attain, 478 US 265.) II. New York’s system of financing public education violates the constitutional guarantee set forth in the Education Article of the State Constitution.

      Paul A. Crotty, Corporation Counsel of New York City (Elizabeth S. Natrella, Leonard Koerner and Pamela Seider Dolgow of counsel), for City of New York and others, amici curiae.

    Based on, inter alla, the gross and glaring inadequacies in the New York State scheme of financing education particularly with respect to at-risk children, i.e., children needing special education or from concentrated poverty, minorities and children of limited English proficiency, as well as over 12 years of legislative inaction, the courts below erred in precipitously dismissing the complaint for failure to state a cause of action. (Board of Educ. v Nyquist, 57 NY2d 27, 459 US 1139; Aspira v Board of Educ., 423 F Supp 647; People v Bing, 76 NY2d 331.)

      Juan A. Figueroa, New York City, and Sandra Del Valle for Puerto Rican Legal Defense and Education Fund, Inc., amicus curiae.

    The current school financing system violates the Equal Protection Clause of the New York State Constitution. (Board of Educ. v Nyquist, 57 NY2d 27; Plyler v Doe, 457 US 202; Hobson v Hansen, 269 F Supp 401, 393 US 801, affd sub nom. Smuck v Hobson, 408 F2d 175; Matter of Alban v County of Nassau, 89 AD2d 340, 59 NY2d 731; Matter of District 27 Community School Bd. v Board of Educ., 130 Misc 2d 398; Alevy v Downstate Med. Ctr., 39 NY2d 326; Washington v Davis, 426 US 229; Arlington Hgts. v Metropolitan Hous. Corp., 429 US 252; Columbus Bd. of Educ. v Penick, 443 US 449; Arthur v Nyquist, 573 F2d 134.)

      Michael A. Rebell Associates, New York City (Michael A. Rebell and Robert L. Hughes of counsel), for Campaign for Fiscal Equity, Inc., amicus curiae.

    I. The present State education financing scheme results in "gross and glaring” inadequacies. II. The State education aid scheme is no longer rationally related to a legitimate State purpose. (San Antonio School Dist. v Rodriguez, 411 US 1; People v Carter, 80 Misc 2d 1081; Maresca v Cuomo, 64 NY2d 242; Wiggins v Town of Somers, 4 NY2d 215; Flacke v Onondaga Landfill Sys., 69 NY2d 355; Matter of Warder v Board of Regents, 53 NY2d 186.) III. Because the Legislature has abdicated its responsibility to remedy the inequities in the State educational finance system, this Court should now provide relief.
   OPINION OF THE COURT

Levine, J.

In this action for declaratory judgment we are asked to determine whether plaintiffs have stated a cause of action in their pleadings and supporting papers in which they seek a declaration that New York’s system for financing its public elementary and secondary schools is unconstitutional.

Plaintiffs, Reform Educational Financing Inequities Today (R.E.F.I.T.), a not-for-profit membership organization suing on behalf of itself and 40 member school districts, the Boards of Education of 21 Long Island school districts participating individually, individual taxpayers, parents, and public school students residing in participating school districts, allege in their complaint that the statutory scheme by which New York finances its public schools violates the Education Article of the New York Constitution (art XI, § 1), and the Equal Protection Clauses of the Federal and State Constitutions. Supreme Court dismissed plaintiff’s complaint for failure to state a cause of action (152 Misc 2d 714), and the Appellate Division modified, on the law, by adding a provision to the Supreme Court judgment declaring New York’s school financing scheme constitutional and, as so modified, affirmed (199 AD2d 488). We agree with the courts below.

Our State Constitution requires that "[t]he legislature shall provide for maintenance and support of a system of free common schools, wherein all the children of this state may be educated” (art XI, § 1). In Board of Educ., Levittown Union Free School Dish v Nyquist (57 NY2d 27) (hereinafter Levittown), this Court held that this constitutional provision does not mandate that all educational facilities and services be substantially equal throughout the State. Rather, article XI, § 1 was intended to require the Legislature to provide a State system of free schools availing all of the State’s children of a "sound basic education” (id., at 48).

Plaintiffs in this action do not claim that students in their district are receiving something less than a sound basic education. Rather, their pleadings and supporting papers demonstrate that there now exists a greater disparity in the amount of money spent per pupil in property-poor as compared to property-rich school districts than the disparity in existence at the time Levittown was decided. Plaintiffs now claim that this disparity demonstrates a gross and glaring inadequacy in the State’s school financing scheme, and that this showing of great disparity calls into question the constitutionality of the financing scheme.

Plaintiffs’ argument rests on their assertion that Levittown left the door open for a challenge to the constitutionality of the educational financing structure on the basis of gross and glaring inadequacy in the funding of education and that such inadequacy can be demonstrated by extreme disparities in funding. However, even a claim of extreme disparity cannot demonstrate the "gross and glaring inadequacy” (id., at 48) we referred to in Levittown.

The Education Article does not by its express terms contain an egalitarian component. Nor does a study of the history of the Article reveal an intent to preclude disparities in the funding for education or in relative educational opportunities among the State’s school districts. Instead, "the evident purpose of [the Education Article] was to deprive the legislature of discretion in relation to the establishment and maintenance of common schools, and to impose on that body the absolute duty to provide a general system of common schools” (3 Lincoln, Constitutional History of New York, at 554). Thus, the primary aim of the legislation was to constitutionalize the established system of common schools rather than to alter its substance (see, e.g., Report of Comm on Education and Funds Pertaining Thereto, 2 Documents of NY Constitutional Convention of 1894, Doc No. 62, at 3; Judd v Board of Educ., 278 NY 200, 210). That system consisted of 11,778 local school districts with varying amounts of property wealth which offered significantly disparate educational opportunities (Fortieth Ann Report of State Superintendent of Public Instruction, 6 NY Assembly Documents of 1894, Doc No. 42, at 76-83, 88-95). Clearly, equal educational opportunity was not the intended result of the amendment — an adequate education was. Thus, it was anticipated that the amendment would only affect places in the State where the common schools were not adequate (3 Revised Record at Constitutional Convention of 1894, at 695).

Therefore, even accepting plaintiffs’ allegations of gross disparities between the amount of money spent on students in property-poor school districts and property-rich school districts, their cause of action based on a violation of the Educatian Article due to such disparities cannot survive this motion to dismiss. Giving plaintiffs’ submissions the benefit of every favorable inference, they simply do not state a claim that these disparities have caused students in the poorer districts to receive less than a sound basic education, which is all that they are guaranteed by our Constitution. Accordingly, the order of the Appellate Division, insofar as it affirmed dismissal of the cause of action based on the Education Article of our State Constitution, should be affirmed, without prejudice, however, to the plaintiffs, if so advised, to apply at the trial court for leave to amend the complaint (CPLR 3211 [e]; see, People v New York City Tr. Auth., 59 NY2d 343, 350).

Moreover, neither in their pleadings and other submissions on this motion to dismiss, nor in their argument before this Court have plaintiffs advanced a legal or factual basis for us to overrule Levittowris equal protection analysis under the State and Federal Constitutions. In Levittown and again in Campaign for Fiscal Equity v State of New York (86 NY2d 307 [decided today]), we have made clear that the State educational financing system will be upheld if it is supported by a rational basis. The desire to provide local control of education provides such basis. As plaintiff’s other equal protection arguments are dependent upon this Court adopting a more exacting standard, those equal protection challenges must also fail.

Finally, rather than affirm the Appellate Division’s broad and definitive declaration of the constitutionality of the State educational financing system, we modify to declare that the school financing scheme of the State of New York has not been shown in this case to be unconstitutional (see, Campaign for Fiscal Equity v State of New York, supra).

Accordingly, the order of the Appellate Division should be modified, with costs to defendants, in accordance with the opinion herein and, as so modified, affirmed.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Ciparick concur; Judge Smith concurring only in result.

Order modified, etc.

       Unlike in City of New York v State of New York (86 NY2d 286 [decided today]), the defendants have not raised lack of capacity to sue as a defense. Thus we do not reach that issue.