author: Hancock, Jr., J.

text:
    Yvonne McCain et al., on Behalf of Themselves and Their Children and All Others Similarly Situated, Appellants, Donna Keyes et al., Intervenors-Appellants, Carolyn Lee et al., Proposed Intervenors-Appellants, and Linda James et al., on Behalf of Themselves and Their Children and All Others Similarly Situated, Intervenors, v Edward I. Koch, as Mayor of the City of New York, et al., Respondents, et al., Defendant.
    Argued April 22,1987;
    decided June 4, 1987

      POINTS OF COUNSEL

      Steven Banks, Kalman Finkel, John E. Kirklin, Scott A. Rosenberg, Helaine Barnett, Arthur J. Fried, Shawn P. Leary and Matthew Diller for appellants, intervenors-appellants and proposed intervenors-appellants.

      Samuel J. Silverman, Jay Greenfield, Rachel Pollock, Jan Kleeman and Robert M. Hayes for interveners.

      Peter L. Zimroth, Corporation Counsel (Barry P. Schwartz, Leonard Koerner and Fay Leoussis of counsel), for respondents.

      James G. Sweeney, County Attorney, for Orange County and others, amici curiae.

   OPINION OF THE COURT

Hancock, Jr., J.

This appeal concerns the power of Supreme Court to fashion equitable relief. The sole issue is whether the court has power to issue a preliminary injunction requiring New York City Departments of Social Services (DSS) and Housing, Preservation and Development (HPD), when they have undertaken to provide emergency housing for homeless families with children, to provide housing which satisfies minimum standards of sanitation, safety and decency. We hold that Supreme Court has such power. Accordingly, that part of the order of the Appellate Division which vacated the preliminary injunction issued by Supreme Court should be reversed and the case remitted to the Appellate Division for further proceedings.

I

The appeal involves a portion of one of five separate orders of Supreme Court reviewed at the Appellate Division in consolidated appeals (see, McCain v Koch, 117 AD2d 198) in litigation pertaining to various aspects of the immensely difficult human, social and governmental problems presented in New York City and other large urban areas by the plight of homeless destitute families with children. Plaintiffs who sought and obtained the injunction are destitute families who have been granted and are receiving emergency housing aid (127 Misc 2d 23). In their complaint seeking an order compelling defendants to provide them with “safe, suitable and adequate emergency housing”, plaintiffs describe specific conditions encountered by families lodged in hotels and motels including instances of rooms without furniture, bedding or appliances, apartments without adequate heat, hot water, plumbing or electricity, and unguarded buildings infested with rodents and vermin and plagued with crime. Defendants reject any suggestion that they are indifferent to the plight of the homeless and cite, among other documents, the 1987 Report of the Mayor’s Advisory Task Force on the Homeless as evidence that the City is doing "a ’creditable job’ in what the Advisory Task Force described as the ’monumental task’ of housing and feeding a homeless population which has now grown to 27,000 people” (respondent’s brief, at 5). Plaintiffs reject these conclusions and assert that defendants still do not provide "emergency housing that meets the most basic standards of civilized society” (appellant’s reply brief, at 1).

The order (Sup Ct, NY County, entered June 27, 1984) which the Appellate Division modified grants a preliminary injunction to plaintiffs compelling defendants to provide emergency housing conforming to minimal standards. The limited question certified to us by the Appellate Division is whether it properly modified that order on the law by denying the motion for a preliminary injunction and vacating the provision granting it.

The injunction of June 27, 1984 does not direct defendants to provide housing where none is being provided. It applies only '[w]hen a family is not denied emergency housing, assistance and services” (emphasis added). Its provisions, insofar as they prescribe minimal standards, are:

"DSS and HPD shall, arrange so far as is practicable in the placement in emergency housing, that such housing:
"a. contains a bed for each family member, or a crib in the case of an infant, with a clean mattress and pillow and with clean and sufficient sheets and blankets;
"b. contains a sufficient number of clean towels;
"c. contains sufficient space for the family based on City laws governing residential units [citation omitted];
"d. has accessible to it a sanitary bathroom with hot water;
"e. is sufficiently heated pursuant to City law;
"[f]. contains basic furniture essential for daily living;
"[g]. has window guards as required by the laws governing residential multiple dwellings;
"[h]. has locks on the emergency housing unit’s outside doors”.

These minimum standard provisions were first imposed by Supreme Court on June 20, 1983 as an interim order and subsequently continued in effect by the order of June 27, 1984. It is significant that approximately three and one-half months after the issuance of the June 20, 1983 interim order, the substance of the minimum standards in the injunction was included in more rigorous departmental regulations for hotels and motels used for emergency housing promulgated by the Commissioner of Social Services (18 NYCRR 352.3 [g], eff Oct. 6, 1983).

The Appellate Division vacated the injunction "reluctantly” on constraint of our decision in Matter of Bernstein v Toia (43 NY2d 437). In concluding that under Bernstein "the adequacy of the level of welfare benefits is a matter committed to the discretion of the Legislature” (117 AD2d, at 216) and that it was, therefore, "unable to afford the plaintiffs complete and meaningful relief” (id.), the Appellate Division commented (at 216): "The inability of courts to set even minimum standards for meeting 'the legitimate needs of each recipient’ (see, Matter of Bernstein v Toia, supra, at p 449) upon the failure of the Legislature to do so is discouraging, saddening, and disheartening.”

For reasons which follow, we now reverse. The certified question is answered in the negative.

II

There is no question that in a proper case Supreme Court has power as a court of equity to grant a temporary injunction which mandates specific conduct by municipal agencies (see, CPLR 6301; Bachman v Harrington, 184 NY 458, 462-464; Tucker v Toia, 54 AD2d 322, 324-326; Graham v Board of Supervisors, 49 Misc 2d 459, mod on other grounds 25 AD2d 250-254, appeal dismissed 17 NY2d 866; 7A Weinstein-KornMiller, NY Civ Prac fí 6301.06; 12 Carmody-Wait 2d, NY Prac § 78:24; 17 McQuillin, Municipal Corporations § 49.50 [3d rev ed]; see also, Klostermann v Cuomo, 61 NY2d 525, 530-531; and Matter of Jones v Berman, 37 NY2d 42, 57 [both involving mandatory relief in CPLR art 78 proceedings]; Lexington & Fortieth Corp. v Callaghan, 281 NY 526, 530-532 [involving permanent mandatory injunction]). Defendants contend, however, that notwithstanding the power of Supreme Court to grant injunctive relief, it could not lawfully do so here. They advance three main reasons.

A

Defendants argue that the issue of Supreme Court’s power to grant the injunction (contained originally in the interim order of June 20, 1983 and continued in the order of June 27, 1984) became moot when the Department of Social Services adopted the substance of the injunction standards in promulgating its own more detailed and stringent minimum standards for hotels/motels used as emergency housing to be effective on October 6, 1983 (18 NYCRR 352.3 [g]). They claim that plaintiffs, with the Commissioner’s adoption of these regulations, have, in effect, won their lawsuit and that consideration of questions concerning the court’s power to grant the injunction is now unnecessary. Defendants overlook a cardinal point. It is not the words of the standards, whether in the injunction or the regulations, but compliance with them which will produce the minimally adequate housing to which these plaintiffs are entitled. Because the Appellate Division concluded, as a matter of law, that Supreme Court lacked power to establish minimum standards of habitability, it did not pass on the issues pertaining to defendants’ alleged noncompliance with the standards or to the need for and propriety of the court’s injunction compelling such compliance (CPLR 6301). Until such questions have been judicially addressed and resolved, plaintiffs’ action seeking injunctive relief cannot be moot.

B

Defendants contend next that they have no legal obligation to provide plaintiffs "with any emergency housing” under State or Federal constitutional or statutory law. Without such underlying obligation, the argument goes, there can be no substantive basis for an injunction compelling compliance with minimum standards. The argument misconstrues the scope and effect of the order before us. The injunction stands or falls irrespective of the existence of such underlying obligation; it benefits only those families who have qualified for and are receiving emergency housing aid and the direction that the housing must meet prescribed minimum standards applies only when DSS and HPD have undertaken to provide the housing.

The Appellate Division recognized this limited application of the June 27, 1984 injunction in its characterization of Supreme Court’s action in granting it: "Without reaching the constitutional and statutory issues, except to note the absence of an explicit mandate, Justice Greenfield held (p 24) 'once the defendants have undertaken to provide emergency shelter, whether for 30 days pursuant to AFDC, or beyond, instead of providing direct cash grants’, defendants must ensure that the shelter meets 'minimal standards of cleanliness, warmth, space and rudimentary conveniences’. The court invoked its equitable powers to compel compliance with reasonable minimum standards, reasoning (p 25) that the homeless as 'interim wards of a governmental entity’ are entitled to no less than convicted criminals.” (117 AD2d, at 208.)

The right of eligible families who are not receiving emergency housing to compel defendants to furnish it is the issue in other parts of the Appellate Division’s order not before us on this appeal. Thus, to decide the narrow issue here, it is not necessary to resolve questions pertaining to the underlying obligation to furnish "emergency shelter to eligible homeless families with children” (117 AD2d, at 222). We do not reach them.

Nor do we address the additional ground of the Appellate Division for denying injunctive relief: that in view of our decision in Matter of Bernstein v Toia (43 NY2d 437, supra), plaintiffs are not likely to "prove that [NY Const] article XVII substantively guarantees minimal physical standards of cleanliness, warmth, space and rudimentary convenience in emergency shelter.” (117 AD2d, at 217.) Because we hold that, whether or not plaintiffs have any right to shelter under State or Federal constitutional or statutory law, Supreme Court had the power to require defendants, once they undertook to provide housing, to make that shelter minimally habitable, we conclude that Bernstein poses no bar to the grant of injunctive relief in this case. Moreover, when defendants undertake to provide emergency housing, they must now comply with the State departmental regulations (18 NYCRR 352.3 [g], [h]; see, part II [C], at 119-120, infra), and thus, so long as the regulations are in effect, no question can exist concerning the minimum standards for the accommodations to be provided.

c

Finally, defendants, citing Klostermann v Cuomo (61 NY2d 525, supra), Jones v Beame (45 NY2d 402) and Matter of Bernstein v Toia (43 NY2d 437, supra), maintain that Supreme Court in setting and enforcing minimum standards for emergency housing has violated the principle that a court should, as a matter of policy, "abstain from venturing into areas if it is ill-equipped to undertake the responsibility and other branches of government are far more suited to the task” (Jones v Beame, supra, at 409). Under this rule, defendants argue, plaintiffs’ claims are not justiciable. Thus, defendants adopt the essential reasoning of the Appellate Division in its conclusion that, on the authority of Bernstein v Toia (supra), it was bound to vacate the injunction because the "adequacy of the level of welfare benefits is a matter committed to the discretion of the Legislature” (117 AD2d, at 216).

Matter of Bernstein v Toia (supra) may be readily distinguished. There, the petitioners challenged the flat grant concept of maximum shelter allowances established by the Commissioner of Social Services pursuant to specific statutory authority (Social Services Law § 20 [2] [a]; [3] [d]; § 131-a) and sought to have the court substitute its judgment on a case-by-case, basis for the amounts of the standard shelter allowances set out in the schedule (18 NYCRR 352.3 [a]). In holding that the courts lacked power to grant the relief sought we said, "it is the responsibility of the Department of Social Services, as the body charged with the administration of all forms of social services and empowered to establish rules, regulations and policies to carry out its duties (Social Services Law, § 20, subd % par [a]; subd 3, par [d]), to implement the provisions of section 131-a. The regulation reflecting the choice made by the department, employing what is effectively a flat grant concept for shelter allowances, is beyond our power to disturb unless it is 'so lacking in reason for its promulgation that it is essentially arbitrary. ’ (Matter of Marburg v Cole, 286 NY 202, 212.)” (43 NY2d, at 448; emphasis added.)

Here, in contrast to Bernstein, when Supreme Court first imposed minimum standards on June 20, 1983, as part of its interim order, there could be no conflict with a departmental regulation. No applicable regulation existed. Supreme Court decided that defendants, having undertaken to provide the homeless with emergency shelter, were obliged to furnish shelter meeting minimum standards. It reasoned that "[i]n a civilized society, a 'shelter’ which does not meet minimal standards of cleanliness, warmth, space and rudimentary conveniences is no shelter at all” (127 Misc 2d, at 24; emphasis added) and that in providing subminimum shelter the defendants were, in effect, denying any relief to the homeless in contravention of their statutory and constitutional obligation (see, Tucker v Toia, 43 NY2d 1, 9). It was because of the absence of any departmental regulation that it was necessary for the court to establish its own minimum standards. Having done so, the court invoked its equitable powers to compel compliance. Therefore, the June 20, 1983 order involved no encroachment on the legislative or executive prerogative. Nor did Supreme Court’s later action on June 27, 1984 when it continued the June 20, 1983 minimum standards as part of the preliminary injunction which is now at issue. While as noted, the Commissioner had in the interim promulgated his own standards (18 NYCRR 352.3 [g], [h]), there could be no conflict because his regulations are more extensive and stringent than the injunction.

With the adoption of the departmental regulations (18 NYCRR 352.3 [g], [h]), there can be no question about the minimum level of habitability which defendants now must meet when they undertake to provide emergency housing. These regulations, which subsume the more general and less rigorous standards in the court order, are, by their terms, binding on local social services districts (18 NYCRR 352.3 [h]). Defendants, in arguing that the adoption of the departmental regulations has mooted the issue of Supreme Court’s power to grant the injunction, have necessarily conceded that they must follow these departmental standards. Indeed, they are commanded by statute to do so (see, Social Services Law § 20 [2] [a], [b]; [3] [a], [d], [f]; § 34 [3] [d], [e], [f]; Matter of Beaudoin v Toia, 45 NY2d 343, 347). Thus, no issue exists as to the minimum quality of the accommodations presently required by prevailing standards; what remains are questions of compliance and enforcement.

Ill

In sum, we conclude that the Appellate Division erred in its holding that Supreme Court lacked power to issue the preliminary injunction and that it was, therefore, bound, as a matter of law, to vacate the injunction. Because its vacatur was on the law as to the court’s power to set and enforce minimum standards, the Appellate Division did not consider other questions presented, including whether there was an abuse of discretion or whether it, in the exercise of its discretion as an Appellate Division, should make a different disposition of the case (see, CPLR 6301; 7 Weinstein-Korn-Miller, NY Civ Prac f 5501.22), and remittal is therefore necessary (see, Public Adm’r v Royal Bank, 19 NY2d 127, 129-130).

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the case remitted to that court for further proceedings in accordance herewith.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Order, insofar as appealed from, reversed, with costs, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein. Certified question answered in the negative.

      . The details of several case histories illustrating plaintiffs’ allegations that defendants have denied them emergency housing meeting minimal standards of sanitation, safety and decency, as set forth in the complaint and moving papers, and of the procedural history, background and general description of the litigation are summarized in the opinions below (127 Misc 2d 23, 117 AD2d 198; see also, Matter of Lamboy v Gross, 126 AD2d 265; Matter of Fulton v Krauskopf, 127 Misc 2d 20).

      . Supreme Court denied plaintiffs’ motion for class certification (127 Misc 2d, at 25) and the Appellate Division affirmed that denial (117 AD2d, at 221-222). The issue is not before us.

      . This appeal is limited to minimum standards for "emergency housing which municipal defendants provide at hotels and motels.” Questions concerning minimum standards for tier I or tier II shelters (18 NYCRR 900.2 [b]) are not before us.

        . Whether the municipal defendants have a legal duty under State or Federal law to furnish emergency shelter to eligible families where the shelter is not already being provided was addressed by the Appellate Division in a part of its opinion (117 AD2d, at 211-216) dealing with an entirely separate Supreme Court order. On May 30, 1985, Supreme Court (NY County [Meyers, J.]), denied motions by Linda James and Ronald Wright to intervene and for a preliminary injunction barring City officials from denying emergency shelter to homeless families. The Appellate Division reversed the decision of Supreme Court and granted the motions to intervene and for preliminary injunctive relief. Defendants filed an affidavit of intention to move for permission to appeal and plaintiffs moved to vacate the statutory stay (CPLR 5519 [a] [1]). Because the Appellate Division order granting the preliminary injunction was not final, defendants’ appeal to this court did not lie and the plaintiffs’ motion to vacate was denied as unnecessary (68 NY2d 713). This part of the Appellate Division order is, therefore, not before us.


source: Caselaw Access Project

author: Chief Judge Wachtler.

license: Public Domain

text:
    Suffolk Housing Services et al., Appellants, v Town of Brookhaven et al., Respondents.
    Argued April 27,1987;
    decided June 11, 1987

      POINTS OF COUNSEL

      Richard F. Bellman, Grover G. Hankins, Lawrence Sager, Arthur Eisenberg, Susan Ritz and Lewis M. Steel for appellants.

      Allen I. Sak, Town Attorney of Town of Brookhaven (John M. Armentano, Dolores Fredrich and Samuel S. Tripp of counsel), for respondents.

      Thomas Jay Hall for the American Planning Association, amicus curiae.

      Gerald A. Norlander for Westchester Legal Services, amicus

      curiae.

      Edward N. Costikyan, Joseph L. Tobin, Gerard E. Harper, Clifford Peterson and Clyde Allison for the Nassau County Village Officials Association, amicus curiae.

      Steven M. Schapiro, Town Attorney of Town of Babylon (Perry S. Reich of counsel), for Town of Babylon, amicus curiae.

      William L. Maher and Robert L. Dougherty for the Town of Oyster Bay, amicus curiae.

      Bartley J. Costello, III for the Town of Niskayuna and others, amici curiae.

      Beth M. Wickey, David K. Kadane and William L. Lanning for Housing Options Made Equal, Inc., and others, amici curiae.

   OPINION OF THE COURT

Chief Judge Wachtler.

Plaintiffs seek a judgment, among other things, declaring the zoning ordinance of the Town of Brookhaven void in its entirety because of the Town’s failure to exercise its zoning power (Town Law § 261) to enable development of sufficient low-cost shelter and ordering the Town to take affirmative action to rectify the perceived housing shortage. Both lower courts held that the Town of Brookhaven properly exercised its land use authority. In view of the affirmed findings, and because plaintiffs in this litigation, in essence, ask this court to undertake the legislative function of rezoning the Town of Brookhaven, we must affirm the order of the court below.

I

The facts of this case, as well as a description of the pertinent provisions of the zoning ordinance at issue, are fairly set forth in the opinion of the Appellate Division (109 AD2d 323). In essence, plaintiffs allege that there is a critical need for low-cost, multifamily rental housing, the development of which the Town is accused of actively discouraging through its zoning practices. Although plaintiffs originally contended that the Town ordinance itself contained several exclusionary devices (among them, excessive minimum acreage and site area requirements), they concede on this appeal that the ordinance "on its face does not betray the Town’s opposition” to low-income, multifamily housing. Their core contention is that the Town has impeded low-income housing through its implementation of the ordinance. Plaintiffs point to the requirement that a developer wishing to construct any housing other than a single-family dwelling obtain a special permit. Thus, under the Brookhaven zoning scheme, a developer may apply for permission to "cluster” developments in single-family residential districts ("the section 281” application) (see, Town Law § 281). Only after a public hearing may the Town Board by resolution grant the developer permission to build multifamily housing at densities already allowed in the underlying single-family zone. Alternatively, a developer may apply for rezoning to one of two multifamily (MF-1 or MF-2) districts —a process that allows development at densities higher than those allowed in the single-family zones, but, according to plaintiffs, like the "section 281” application, exposes approval of the project to vehement community opposition. The plaintiffs allege that the failure of the Town to "pre-map” some 49,100 acres of vacant land for multifamily housing has two principal effects: first, it inflates the cost of housing because a developer must submit to a protracted and expensive approval process; and, second, the process usually ends in failure because the Town Zoning Board inevitably bows to strong public sentiment against low-cost housing projects.

Both lower courts concluded that plaintiffs had failed to overcome the presumption of the constitutionality of the Brookhaven zoning ordinance, a conclusion we now affirm.

II

A town’s power to zone is derived entirely from the State (Matter of Golden v Planning Bd., 30 NY2d 359, 369-370, appeal dismissed 409 US 1003). Pursuant to statute, a town board is authorized to enact an ordinance "[f]or the purpose of promoting the health, safety, morals, or the general welfare of the community” (Town Law § 261; Berenson v Town of New Castle, 38 NY2d 102, 107). Implicit in our rulings is a recognition of the principle that a municipality may not legitimately exercise its zoning power to effectuate socioeconomic or racial discrimination (Berenson v Town of New Castle, supra, 38 NY2d, at 108; Matter of Golden v Planning Bd., supra, 30 NY2d, at 378). Thus, we have scrutinized carefully the talismanic invocation of seemingly legitimate police power purposes (see, Town Law §§ 261, 263) by municipalities to discern whether they seek to conceal exclusionary zoning practices (see, e.g., Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338; Berenson v Town of New Castle, supra; Matter of Golden v Planning Bd., supra).

In this case, however, our scope of review is limited by affirmed factual findings, for which there is support in the record (Huntley v State of New York, 62 NY2d 134). Here, both lower courts found that numerous developer applications for multifamily and subsidized housing were approved despite the special permit procedures. Moreover, there are affirmed findings that a significant reason for inadequate development of low-cost, multifamily housing was not, as plaintiffs claim, the chilling effect of the application procedures but the lack of developers willing to undertake such projects due to factors such as rising construction and financing costs and economic stagnation. Plaintiffs, in sum, have failed to demonstrate that efforts by the Town caused the claimed shortage of shelter.

We need not address whether the Town of Brookhaven zoning ordinance also meets the standards set forth in Berenson v Town of New Castle (38 NY2d 102, supra). In Berenson, plaintiffs challenged only the facial validity of a per se exclusion of multifamily dwellings from á zoning ordinance (see also, Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338, supra). Plaintiffs here challenge not facial validity, but illegitimate implementation of the ordinance; as we have already held, there has been a failure of proof on this point.

Ill

Zoning, we have already recognized, is an essentially legislative task, and it is therefore anomalous that courts should be required to perform the tasks of a regional planner (Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, supra, 51 NY2d, at 347; Berenson v Town of New Castle, supra, 38 NY2d, at 111). The present plaintiffs, none of whom has proved that he or she has been denied housing by virtue of the Town’s zoning practices, ask the courts to undertake radical rezoning of some 49,100 acres of vacant residential land and an unspecified number of parcels. They seek this relief although they have failed to present a direct challenge to the denial of a specific special permit application pertaining to a particular parcel affected by defendants’ land use practices (see, Klostermann v Cuomo, 61 NY2d 525, 535 ["(t)he paramount concern is that the judiciary not undertake tasks that the other branches are better suited to perform”]; Berenson v Town of New Castle, supra, 38 NY2d, at 111; Commonwealth of Pa. v County of Bucks, 8 Pa Cmwlth 295, 302 A2d 897 [citing Baker v Carr, 369 US 186, 217], cert denied 414 US 1130).

The desirability of a more particularized claim directed at a specific parcel of land or project or plan for housing is apparent from our cases. Historically, the law of zoning in this State has been concerned with development of individual plats (Matter of Golden v Planning Bd., supra, 30 NY2d, at 372; see, e.g., Levitt v Incorporated Vil. of Sands Point, 6 NY2d 269; Arverne Bay Constr. Co. v Thatcher, 278 NY 222). In more recent years, we have required a regional approach — the considered balance of development of the individual parcel with implementation of a comprehensive plan, taking into account community needs (Berenson v Town of New Castle, supra, 38 NY2d, at 110-111). This approach is necessary to ensure the interests of the public by counterbalancing the parochial tendency of local planning boards to insulate their communities from an influx of "less desirable” residents.

In sum, plaintiffs in this case propose no solution short of drastic, essentially legislative intervention by the judiciary (Berenson v Town of New Castle, supra, 38 NY2d, at 111; see also, Board of Educ. v Nyquist, 57 NY2d 27, 38-39, appeal dismissed 459 US 1138; Matter of Storar, 52 NY2d 363, 382-383, cert denied 454 US 858). It should be emphasized that our decision does not mean that any of the present plaintiffs will be denied low-income housing. As noted, the plaintiffs include institutions which obviously have no personal housing needs and certain designated individuals. The institutional plaintiffs concede on this appeal that the individual plaintiffs cannot be located and thus their present housing needs cannot be determined. This factor underscores the abstract character of the case and of the relief sought. Moreover, although we affirm the disposition of the Appellate Division here, we note that "today’s decision [should not] be read as revealing hostility to breaking down even unconstitutional zoning barriers that frustrate the deep human yearning of low-income and minority groups for decent housing they can afford in decent surroundings” (Warth v Seldin, 422 US 490, 528-529 [Brennan, J., dissenting]). In view of the affirmed factual findings, however, we decline to take the legislative action urged by plaintiffs in the context of this lawsuit.

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

Judges Simons, Kaye, Hancock, Jr., and Bellacosa concur; Judge Alexander concurs in result only; Judge Titone taking no part.

Order affirmed, without costs.

       Plaintiffs are public interest organizations, low-income individuals already residing within the Town or in Suffolk County, and Brookhaven taxpayers.


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

text:
    The People of the State of New York, Appellant, v Bridget Alejandro, Also Known as Bridget Rodriguez, Also Known as Bridget Alejandro Morales, Respondent.
    Argued April 24, 1987;
    decided June 11, 1987

      POINTS OF COUNSEL

      Patrick Henry, District Attorney (Ronald E. Lipetz of counsel), for appellant.

      Diarmuid White for respondent.
   OPINION OF THE COURT

Hancock, Jr., J.

Defendant was charged with resisting arrest (Penal Law § 205.30), tried before a jury and convicted on the basis of a misdemeanor information which set forth no factual allegations establishing that the police officer was effecting an authorized arrest. The information was insufficient, on its face because it lacked the necessary nonhearsay allegations which would establish, "if true, every element of the offense charged and the defendant’s commission thereof’ (CPL 100.40 [1] [c]; 100.15 [3]). We hold that this omission constituted a jurisdictional defect which was not waived by defendant’s failure to raise the issue until after completion of the trial.

The resisting arrest charge followed an altercation which erupted when police stopped defendant’s car in Brentwood, New York, for alleged traffic violations. The police issued defendant five traffic summonses and charged her in separate informations with resisting arrest, reckless endangerment and assault. Contrary to the mandate of CPL 100.40 (1) (c), the factual part of the misdemeanor information for resisting arrest contained no allegation supporting an essential element of the charge: that the underlying arrest was authorized. Nevertheless, defendant proceeded to trial without objection.

The jury acquitted defendant of reckless endangerment but was unable to reach a verdict on the assault charge. Defendant was convicted of resisting arrest. On her appeal, the Appellate Term unanimously reversed the conviction, on the law alone, and dismissed the information as jurisdictionally defective "inasmuch as it failed to contain any non-hearsay evidentiary allegation establishing that defendant had attempted to resist an alleged authorized arrest.” The People appeal by leave of an Associate Judge of this court. For reasons which follow, we conclude that the information was properly dismissed and that the order of the Appellate Term should, therefore, be affirmed.

I

This misdemeanor information for resisting arrest was unquestionably insufficient on its face (CPL 100.40 [1] [c]). The Penal Law defines resisting arrest as intentionally preventing or attempting to prevent a police officer "from effecting an authorized arrest” (Penal Law § 205.30 [emphasis added]). It is an essential element of the crime of resisting arrest that the arrest be authorized and, absent proof that the arresting officer had a warrant or probable cause to arrest defendant for commission of some offense, a conviction cannot stand (People v Peacock, 68 NY2d 675; People v Carneglia, 63 AD2d 734; People v Harewood, 63 AD2d 876). Thus, to comply with the statute, the factual part of the information for resisting arrest must contain "[n]on-hearsay allegations [which would] establish, if true” (CPL 100.40 [1] [c]) that the underlying arrest was authorized. These essential allegations are omitted from the information here. The factual portion pertains only to defendant’s actions in resisting the arrest.

II

Conceding the facial insufficiency of the information, the significant question is whether the defect is jurisdictional. We conclude that an information which fails to contain nonhearsay allegations establishing "if true, every element of the offense charged and the defendant’s commission thereof’ (CPL 100.40 [1] [c]) is fatally defective. This conclusion is compelled by the natural and obvious meaning of CPL 100.40 (1) (c) and CPL 100.15 (3) which establish a specific requirement applicable to informations beyond what is required for the sufficiency of other accusatory instruments and by the evident legislative purpose behind such special requirement, as revealed in an analysis of the pertinent statutes and the relevant legislative history.

CPL 100.40, as it pertains to informations, provides:

"1. An information, or a count thereof, is sufficient on its face when:
"(a) It substantially conforms to the requirements prescribed in section 100.15; and
"(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and
"(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant’s commission thereof.”

CPL 100.40 (1) establishes three conditions for the facial sufficiency of an information. The entire information must be in substantial conformity with CPL 100.15 which prescribes the form and content for informations and for misdemeanor and felony complaints. In addition, the factual part must meet two conditions: (1) that the allegations provide reasonable cause to believe that the defendant committed the offense (subd [b]) and (2) that nonhearsay allegations establish, if true, every element of the offense charged (subd [c]). The "reasonable cause” requirement for a finding of facial sufficiency (subd [b]) is applicable not only to informations but to the other local criminal court accusatory instruments, simplified informations (CPL 100.40 [2]) and misdemeanor and felony complaints (CPL 100.40 [4]; 100.15 [3]; see, e.g., People v Dumas, 68 NY2d 729, 731, holding that because a misdemeanor complaint alone may permit issuance of an arrest warrant [CPL 120.20 (1)] "the requirement for factual allegations of an evidentiary character establishing reasonable cause should be assessed in that light”). The "prima facie case” requirement — that the factual part establish every element of the offense charged (subd [c]) — applies, however, to informations alone.

The legislative purpose of establishing a special and more stringent condition for a finding of facial sufficiency of an information, evident in CPL 100.40 (1) (a), is reaffirmed in CPL 100.15, which provides for the form and content of informations as well as misdemeanor and felony complaints. CPL 100.15 (3) prescribes that: "The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges. Where more than one offense is charged, the factual part should consist of a single factual account applicable to all the counts of the accusatory part. The factual allegations may be based either upon personal knowledge of the complainant or upon information and belief. Nothing contained in this section, however, limits or affects the requirement, prescribed in subdivision one of section 100.40, that in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant’s commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions” (emphasis added).

The reason for requiring the additional showing of a prima facie case for an information lies in the unique function that an information serves under the statutory scheme established by the Criminal Procedure Law. An information is often the instrument upon which the defendant is prosecuted for a misdemeanor or a petty offense. Unlike a felony complaint (CPL 180.10), it is not followed by a preliminary hearing and a Grand Jury proceeding. Thus, the People need not, at any time prior to trial, present actual evidence demonstrating a prima facie case, as with an indictment following a felony complaint (compare, CPL 190.65 [1] [a], providing that an indictment must be supported by "legally sufficient evidence” before the Grand Jury to establish that the defendant committed the crime, i.e., "competent evidence, which, if accepted as true, would establish every element of the offense and the defendant’s commission of it” [People v Pelchat, 62 NY2d 97, 105]).

Because an information must, for jurisdictional purposes, contain nonhearsay factual allegations sufficient to establish a prima facie case, a prosecutor’s hearsay statements, set forth in a bill of particulars, cannot supply necessary factual allegations to cure a deficient information. By contrast, an indictment, which presupposes that the Grand Jury, before issuance of the indictment, has found that a prima facie case exists (CPL 190.65 [1] [a]) may, as a pleading, be corrected by a bill of particulars. Thus, People v Iannone (45 NY2d 589), and similar cases, involving the correction of factual deficiencies in indictments cannot be applied to informations and are not on point.

That it was this distinguishing characteristic of an information — its use as the sole instrument upon which the defendant could be prosecuted — which prompted the Legislature to write in the special restrictions applicable to informations found in CPL 100.40 (1) (c) and 100.15 (3) is confirmed by the legislative history leading to the enactment of these sections as part of the Criminal Procedure Law (L 1970, ch 996, § 1). The 1968 Report of the Temporary Commission on the Revision of the Penal Law and Criminal Code states: "Under the proposal, a 'felony complaint’ (the accusatory instrument which commences a felony action in a local criminal court) need only demonstrate 'reasonable cause to believe that the defendant committed the’ felony in question (§ 50.35 [3b]). However, an 'information’ (charging a misdemeanor or petty offense) must demonstrate both 'reasonable cause’ and a 'legally sufficient’ or prima facie case (id. [1-b, c]) — a much more demanding standard. The rationale of this distinction is, in part, that the felony complaint is not the instrument of ultimate prosecution and must be followed by a grand jury proceeding and an indictment based upon legally sufficient grand jury evidence” (Introductory Comments, at xviii; emphasis added).

Our conclusion that the showing of a prima facie case for informations was intended to be of jurisdictional import is supported also by the mandatory nature of the language in CPL 100.15 (3) which underscores in unequivocal terms that nothing contained in the section "limits or affects the requirement [in CPL 100.40 (1) (c) that for facial sufficiency of an information] every element of the offense charged and the defendant’s commission thereof must be supported by non-hearsay allegations” (CPL 100.15 [3] [emphasis added]; see, McKinney’s Cons Laws of NY, Book 1, Statutes § 94 [statutory language is generally construed according to its natural and most obvious sense]; § 171 [mandatory provisions of a statute are generally treated as essential and given jurisdictional effect]). In this insistence on a prima facie case for informations, there clearly appears a vital legislative concern that a defendant — who, under the Criminal Procedure Law, can be prosecuted on the basis of an information alone — must have, at least, an assurance that the information contains allegations establishing a legally sufficient case (see, Bellacosa, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 100.15, at 25; CPL 100.40, at 67).

Our holding that failure to comply with the "prima facie case” requirement for facial sufficiency in CPL 100.40 (1) (c) and 100.15 (3) is a jurisdictional defect is in accord with our decisions in People v Hall (48 NY2d 927) and People v Case (42 NY2d 98). People v Miles (64 NY2d 731) is not to the contrary. There, the claim of jurisdictional defect was that the information failed to allege facts of an evidentiary character under the first sentence of CPL 100.15 (3), not that it lacked the showing of a prima facie case required by the last sentence of CPL 100.15 (3). The cases upon which the People rely (People v Cohen, 52 NY2d 584; People v Jackson, 46 NY2d 721; People v Iannone, 45 NY2d 589, supra; People v Fitzgerald, 45 NY2d 574) deal with the sufficiency of indictments and are, therefore, inapposite.

The order of the Appellate Term should be affirmed.

Bellacosa, J.

(concurring). I concur in the result and in the reasoning of the opinion by Judge Hancock. I am also of the view that this result is a small price to pay for upholding the logic of the statutory framework. It supplies elemental fairness to defendants prosecuted for less serious crimes, but crimes nevertheless, which affect ordinary people and produce lifelong criminal records.

In coming to this conclusion, I am not unmindful either of the practicalities encountered in prosecuting the relatively greater numbers of these relatively less serious crimes. Rather, that is all the more reason for caution and special protections so that such prosecutions do not become routinized or treated by anyone as insignificant or unimportant.

Finally, there are balancing remedies more readily available to the State than to the hapless defendants when the State fails in its threshold procedural burden. The State can easily and promptly amend or supersede and pursue a proper prosecution on a jurisdictionally valid accusatory instrument (CPL 100.45 [2], [3]; 100.50 [1]).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur with Judge Hancock, Jr; Judge Bellacosa concurs in a separate opinion in which Chief Judge Wachtler and Judge Kaye also concur.

Order affirmed.

      . The factual part of the information charging defendant with resisting arrest states: "The above-named defendant intentionally prevented or attempted to prevent a peace officer or police officer from effecting an authorized arrest of himself [sic] or another person. To wit: On 1/4/84 at approx. 1035 hrs. at Nimitz Ave., Brentwood, N.Y. Defendant did intentionally resist a lawful arrest of herself by pulling her arms away, kicking your deponent with her high heels, slapping your deponent, attempting to bite same, putting her 1974 Pontiac sedan into reverse while deponent was attempting to remove her from the vehicle, knocking your deponent to the ground.”

      . In the case of a misdemeanor complaint, the defendant does not have the protection of a preliminary hearing and Grand Jury action as with a felony complaint. However, the defendant is not required to enter a plea to a misdemeanor complaint (CPL 170.65 [1]). Unless he specifically waives prosecution by information (CPL 170.65 [3]) the misdemeanor complaint must be replaced by an information which meets the requirement for facial sufficiency (CPL 100.40 [1] [c]; 100.15 [3]; 170.35) and the defendant must be prosecuted thereon.

      . See also, Staff Comments to the December 1966 Tentative Draft of the Criminal Procedure Law prepared by the Temporary Commission on Revision of the Penal Law and Criminal Code highlighting the proposed change making "reasonable cause” alone sufficient for holding a defendant for action of the Grand Jury and explaining why such relaxed requirement is not recommended for the sufficiency of an information (Staff Comment, Tentative Draft, at 51).


author: Bellacosa, J.

text:
    In the Matter of Ronald FF., Respondent, v Cindy GG., Appellant.
    Argued May 29,1987;
    decided July 2, 1987

      POINTS OF COUNSEL

      Edmund J. Hoffmann, Jr., for appellant.

      LeRoy Johnston III and Mahlon R. Perkins for respondent.
   OPINION OF THE COURT

Bellacosa, J.

Visitation rights may not be granted on the authority of the Matter of Bennett v Jeffreys (40 NY2d 543) extraordinary circumstances rule, to a biological stranger where the child, born out of wedlock, is properly in the custody of his mother. Petitioner was proven by blood test and admissions not to be the father of the child. Respondent is conceded to be a fit mother, a conclusion supported by the evidence before the lower courts, and she has chosen to resist the legal effort to judicially confer visitation rights on petitioner. Under these key premises, the Bennett rule is inapplicable and unavailable. Nothing in this record establishes any basis for interfering with the mother’s full custodial rights, which include the right to determine who may or may not associate with her child.

The mother and petitioner began dating in October 1979 while they were in high school. Their relationship continued until the early fall of 1981. In October 1981, the mother and petitioner broke up and she began dating another man whom she planned to marry. That engagement lasted one month and, in January of 1982, the mother and petitioner resumed their relationship. After they reunited, the mother-to-be informed petitioner that she was four months pregnant and it was possible that he was the father. Throughout the pregnancy, they resided together. Petitioner participated in the mother’s childbirth courses, was present at the child’s birth, and agreed, after initial refusal and dispute, to be listed as the father on the child’s birth certificate. Over the next year or so, the mother and petitioner lived together sporadically. During periods of estrangement, petitioner continued to see the child regularly and was held out to be and considered himself to be the child’s father. After the parties separated, the mother initiated support proceedings against petitioner through the County Department of Social Services.

In October 1983, upon learning of the mother’s intent to move to Texas with the child, petitioner started this proceeding seeking an order temporarily restraining the mother from removing her child from the jurisdiction and granting him visitation rights. Family Court granted a temporary restraining order prohibiting the mother from removing the child from the State, and a hearing was directed on the issue of paternity. The results of a blood-grouping test excluded petitioner as the biological father, but the court nevertheless ordered a hearing on the matter of visitation. After a two-day hearing, the Family Court concluded that "in the present circumstances, it is in [the child’s] best interest to continue his relationship with [petitioner and his] family by means of regular visitation”. The court, citing Matter of Bennett v Jeffreys (40 NY2d 543, supra), found "the circumstances in the instant case sufficiently extraordinary to warrant consideration of petitioner’s request for visitation in light of the child’s best interests despite petitioner’s lack of paternal ties”. Thus, the court ordered bimonthly visits with the child by petitioner and his parents. The court also lifted its previous order restraining the mother from removing the child to another State, but ordered the mother to notify petitioner 30 days in advance of any move from the county so that he could seek modification of the order of visitation.

The mother appealed, and the Appellate Division modified the order of the Family Court eliminating the visitation rights to petitioner’s parents and, as so modified, affirmed. With respect to petitioner’s parents, the court found that "their status throughout, as nonparties requesting no relief, precludes any determination for or against them” (117 AD2d 332, 334).

The mother further appeals to us with respect to the affirmed visitation rights accorded to petitioner. The central issue is whether the Bennett standard, first enunciated and to date applied only to custody disputes between parents and third parties, is available to allow visitation rights to a non-parent against the wishes of the custodial parent. We conclude that the lower courts erred as a matter of law in using the Bennett test.

To be sure, visitation is a subspecies of custody, but the differences in degree in these relational categories is so great and so fundamental that rules like the Bennett rule, which have been carefully crafted and made available only to custody disputes, should not be casually extended to the visitation field. Thus, we expressly decline to do so.

It has long been recognized that, as between a parent and a third person, parental custody of a child may not be displaced absent grievous cause or necessity (People ex rel. Kropp v Shepsky, 305 NY 465, 469). An underlying rationale for this rule is that it is presumptively in a child’s best interest to be raised by at least one parent unless the parents are determined to be unfit (Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196, 204; see also, Family Ct Act §§ 614, 651).

In Matter of Bennett v Jeffreys (40 NY2d 543, supra), we articulated the narrow exception in which a court may consider whether the best interest of a child permits termination of parental custody. "[Ijntervention by the State in the right and responsibility of a natural parent to custody of her or his child is warranted if there is first a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstances which would drastically affect the welfare of the child. It is only on such a premise that the courts may then proceed to inquire into the best interest of the child and to order a custodial disposition on that ground” (id., at 549 [emphasis added]; see also, Matter of Marie B., 62 NY2d 352; Matter of Male Infant L., 61 NY2d 420).

In this case, no one questions the mother’s fitness to raise her child and no one seeks to change custody. Thus, the Bennett rule has no application to the situation before us, and our inquiry is directed solely to the State’s power to interfere with the right of this mother to choose those with whom her child associates. The State may not interfere with that fundamental right unless it shows some compelling State purpose which furthers the child’s best interests (see, Stanley v Illinois, 405 US 645, 651). No such compelling purposes are present in this case.

Finally, there is no legal support whatsoever for the order requiring a custodial parent to notify a nonparent of an intention to move from a particular area of this State. Weiss v Weiss (52 NY2d 170) is not applicable in these circumstances.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the application for visitation rights should be denied in toto.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order reversed, etc.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v Reginald Paylor, Appellant.
    Argued May 28,1987;
    decided July 7, 1987

      POINTS OF COUNSEL

      Frederick W. Turner and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney (Lee S. Gayer and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

Defendant was convicted, after a nonjury trial, of robbery in the first and second degrees for participating in a late-night robbery on White Plains Road in The Bronx. The victim testified that while walking home he observed two men, about 150-200 feet away, sitting on the steps in front of his apartment house. When he got within 10-20 feet of them, defendant turned to look at him. He testified that defendant’s face was clearly visible in the light from two nearby street lamps and from the lobby of the apartment house. The victim decided to continue walking. As he reached the corner of White Plains Road and 242nd Street the two men grabbed him from behind, threw him face first against a fence, held a gun to his head and took his wallet, a Sony Walkman and some jewelry. The victim testified that he turned to look at his attackers while they were going through his pockets and wallet and saw defendant’s face several more times. He positively identified defendant in a photo array and in a corporeal lineup after defendant was arrested. The accomplice was never apprehended.

The defense was alibi. Defendant’s mother testified that her son was home throughout the evening in question with his longtime friend, Derek Thomas. She was in her bedroom watching T.V. and retired at 12:30 or 1:00 a.m. but she testified that had the boys left she would have seen them as they passed her open bedroom door and she would have heard them opening the night chain on the door and walking down the old wooden stairs of the building. Derek Thomas was not called to corroborate this testimony.

At the close of the evidence, the People requested the court to draw an inference from defendant’s failure to call Thomas as a witness and the court ruled generally that the People were entitled to the benefit of the missing witness rule. An extended colloquy followed in which counsel debated what inference should be drawn. Eventually, the court accepted the strongest adverse inference rule set forth in People v Glenn (68 AD2d 626, revd on other grounds 52 NY2d 880), but it did so only after noting treatise references in the opinion stating that the conflict in the various formulations of the missing witness rule were " 'more apparent than real’ ” (id., at 629) and that the only proper inference to be drawn was that the missing witness would not controvert or corroborate evidence he was in a position to controvert or corroborate (id., at 630). The court then invited opposing counsel to submit their understandings of what the strongest adverse inference was under the circumstances of the case on trial. The People contended that application of the Glenn standard permitted not only an inference that defendant was present at the scene of the crime but that he was guilty of committing it. Conversely, defense counsel contended that the strongest adverse inference was that had Thomas been called, he would have testified that he could not remember the evening in question. Thus, even if the Glenn rule were applicable, the prosecutor assigned too much weight to the inference and defense counsel gave it practically none. Nothing in the record reveals whether the court adopted either of these suggested inferences. At the conclusion of the trial, the court recessed to consider all the evidence and when it reconvened, it found defendant guilty of the two robbery counts and dismissed the remaining charge of criminal possession of stolen property.

We have held that when a criminal defendant fails to call a witness under his control who might be expected to give favorable evidence on his behalf the finder of fact may draw an unfavorable inference from that omission (People v Wilson, 64 NY2d 634; People v Rodriguez, 38 NY2d 95, 101; and see, People v Gonzalez, 68 NY2d 424). However, we have not considered what inference should be drawn.

On appeal, the People continue to rely upon the standard set forth in People v Glenn (supra, at 626). That standard, adopting the civil rule set forth in Noce v Kaufman (2 NY2d 347, 353), permits the fact finder to view a criminal defendant’s failure to call a witness as an admission favorable to the People. Defendant relies on People v Terry (83 AD2d 491) which held that an accused’s failure to call a missing witness was something the jury could "consider”.

In the context of criminal cases, we find neither the Glenn nor Terry standards appropriate. Instead, the proper standard is that set forth in Criminal Jury Instructions (1 CJI [NY] 8.55, at 452) which provides that the fact finder may infer from defendant’s failure to call a witness, that if the witness had been called he would not have supported the defense testimony on the issue of which he possessed knowledge. If the fact finder elects to draw an inference from the failure to produce a witness, it may not speculate about what the witness would have said, nor may it assume that the witness could have provided positive evidence corroborating or filling gaps in the People’s proof. The inference is merely negative and allows the fact finder to infer that the missing witness would not have supported or corroborated defendant’s evidence. Thus, in this case, the court, as fact finder, could infer no more than that Thomas, if called, would not have corroborated the testimony of defendant’s mother that defendant was in her house on the night of the crime.

While the transcript in this case makes it clear that the court felt bound by the rule in People v Glenn (supra), it also establishes that the court thought there was little difference in the various formulations of the adverse inference rule when applied. There is nothing to suggest that it accepted the People’s argument that the court should infer defendant’s guilt from his failure to call the missing witness. Under these circumstances, and noting the critical difference between bench trials and jury trials, the court’s finding of guilt was based upon a proper review of the evidence (see, People v Brown, 24 NY2d 168, 173; see also, Harris v Rivera, 454 US 339; United States v Frans, 697 F2d 188, cert denied 464 US 828; United States v Williams, 372 F2d 76, cert denied 389 US 880).

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

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion.

Order affirmed.


author: Alexander, J. Bellacosa, J.

text:
    In the Matter of Knight-Ridder Broadcasting, Inc., Appellant, v Sol Greenberg, as Albany County District Attorney, Respondent.
    Argued June 1,1987;
    decided July 7, 1987

      POINTS OF COUNSEL

      Timothy B. Dyk, Murray A. Indick and Michael J. Hoblock, Jr., for appellant.

      Sol Greenberg, District Attorney, pro se (George H. Barber and Michael J. Connolly of counsel), for Sol Greenberg, respondent.

      David A. Wait, Mark Dwyer and Sherrill R. Spatz for the New York State District Attorneys Association, amicus curiae.

   OPINION OF THE COURT

Alexander, J.

The issue presented for our review in this case is whether the Shield Law (Civil Rights Law § 79-h) extends its protection to nonconfidential sources or information obtained in the course of gathering or obtaining news for publication. We hold that it does not.

I

In February 1986, Knight-Ridder’s television station in Albany — WTEN-TV—broadcast on its evening newscast portions of an interview with Donald Bent, whose wife had then been missing for several days. The interview had been conducted by a news team led by a reporter employed by the television station. Approximately one minute of the taped interview was broadcast; the remainder of the interview has never been made public. It is not clear at this stage of the litigation what, if any, portions of the interview were conducted under a promise of confidentiality.

After Mrs. Bent was found dead in the trunk of an automobile, the District Attorney began a Grand Jury investigation into the death and Donald Bent became a suspect. In furtherance of the investigation, a subpoena duces tecum was served on WTEN demanding "all video tapes regarding an interview” with Donald Bent. In response to the subpoena, WTEN produced the video tape of the newscast along with the written introduction to the broadcast that had been read from the studio and a list of the "supers” that had appeared during the broadcast. The station declined to produce the nonbroadcast portions of the interview gathered by the news team during the preparation of the report.

Knight-Ridder then moved to quash the subpoena duces tecum, arguing alternatively that New York’s Shield Law (Civil Rights Law § 79-h) and the First Amendment to the United States Constitution provided a privilege as to the production of the requested material. Supreme Court, Albany County, granted the motion to quash, relying exclusively on the statutory ground. The Appellate Division reversed, holding that the Shield Law does not protect information not received in confidence, and accordingly remitted the matter to Supreme Court for an in camera inspection of the taped interview with Donald Bent to determine what portions, if any, of such interview were conducted confidentially (119 AD2d 68). Subsequently, after we dismissed an appeal taken as of right (68 NY2d 997), the Appellate Division granted leave to appeal to this court on a certified question.

II

There can be no doubt that the Legislature in enacting and subsequently amending the Shield Law (Civil Rights Law § 79-h) has expressed a strong desire to safeguard the free channels of news communication (see, Matter of Beach v Shanley, 62 NY2d 241, 249-251; Oak Beach Inn Corp. v Babylon Beacon, 62 NY2d 158). In its deliberative process, the Legislature has presumably debated the efficacy of granting broad protection to the press, weighed competing policy considerations, and reached a formulation that in its view serves the best interest of the public. Whatever the view of this court may be as to the wisdom of the scope of the protection afforded by the statute, it may not substitute its view for that decided upon by the Legislature. Because the statute here, as enacted, interpreted and amended, clearly does not extend its protection to nonconfidential sources or information obtained in the course of gathering or obtaining news for publication, the Appellate Division correctly declined to quash the subpoena and the certified question must be answered in the negative.

New York’s Shield Law was enacted in 1970 in response, in part, to attempts by the Federal Government to compel the disclosure of confidential information and sought to protect newspersons from contempt charges for failing to disclose such information or its sources that were obtained during the news gathering process (Governor’s Mem, 1970 NY Legis Ann, at 508). In the years that followed, the appellate courts in every judicial department of this State were unanimous in ruling that the statute did not protect nonconfidential information (see, People v Le Grand, 67 AD2d 446 [2d Dept]; Matter of WBAI-FM v Proskin, 42 AD2d 5 [3d Dept], affg 68 Misc 2d 355; People [Fischer] v Dan, 41 AD2d 687 [4th Dept], appeal dismissed 32 NY2d 764, lv denied 32 NY2d 613; Matter of Wolf v People, 39 AD2d 864 [1st Dept], affg 69 Misc 2d 256). In reaching this conclusion, courts noted that the privilege must be strictly construed as it provides an exception to the fundamental duty of all citizens to disclose information to an authorized governmental body (Matter of WBAI-FM v Proskin, supra, at 7). Specifically rejected was the contention that since the statute does not explicitly state that the privilege applies only to confidential communications, no requirement of confidentiality exists. Indeed, it was pointed out that in signing the law, Governor Rockefeller cited the " 'real and imminent threat’ ” of requiring " 'the disclosure of information ohtained by reporters in confidence’ ” (id., at 6, quoting 1970 NY Legis Ann, at 508 [emphasis supplied]). Further, it was recognized that the entire thrust of the Shield Law was aimed at encouraging a free press by shielding those communications given to the news media in confidence (id., at 9 [Cooke, J., dissenting]; Matter of Wolf v People, supra) and in this regard was similar to other privileges which are generally based on confidential relationships (Matter of WBAI-FM v Proskin, supra, at 7; Matter of Wolf v People, supra; see also, Matter of Andrews v Andreoli, 92 Misc 2d 410, 416-421).

In 1981, the Legislature sought to amend the statute to strengthen its protection for newspersons. Among the provisions proposed was that the protection afforded by the law should apply whether or not the information was imparted under a cloak of confidentiality. Other proposed amendments sought to broaden the definition of the terms "professional journalist” and "news”, and sought to ensure that newspersons could not be held in contempt even if the material or the identity of the material’s source was highly relevant to a particular governmental inquiry and the information was not solicited by the newsperson before its disclosure to him. Although these latter proposals were included in the legislation that was approved by the Legislature and signed by the Governor, of significance here is that the proposal seeking to eliminate the confidentiality requirement, among other proposals, was deleted from the version of the bill that was ultimately approved.

After the passage of the 1981 amendments, the question whether the statute’s protection extended to nonconfidential information was again litigated and again, the unanimous appellate authority in this State concluded that the cloak of confidentiality requirement still obtained (see, People v Korkala, 99 AD2d 161 [1st Dept]; Hennigan v Buffalo Courier Express Co., 85 AD2d 924 [4th Dept]; see also, Matter of Pennzoil Co., 108 AD2d 666; People v Troiano, 127 Misc 2d 738; First United Fund v American Banker, 127 Misc 2d 247; People v Bova, 118 Misc 2d 14; contra, Wilkins v Kalla, 118 Misc 2d 34; People v Iannaccone, 112 Misc 2d 1057). In Korkala, the First Department noted that, in 1981 "the very provision contained in the initial version of the bill that would have eliminated the 'cloak of confidentiality’ requirement for invoking the Shield Law was deleted from the version finally passed” and concluded that such development "persuasively suggests that the Legislature’s intent * * * was not to create an 'absolute privilege’ against disclosure” (99 AD2d 161, 165, 166, supra).

It is well settled that the legislative history of a particular enactment must be reviewed in light of the existing decisional law which the Legislature is presumed to be familiar with and to the extent it left it unchanged, that it accepted (Arbegast v Board of Educ., 65 NY2d 161, 169; Hammelburger v Foursome Inn Corp., 54 NY2d 580, 588; Engle v Talarico, 33 NY2d 237, 242). Where the interpretation of a statute is well settled and accepted across the State, it is as much a part of the enactment as if incorporated into the language of the act itself (Pouch v Prudential Ins. Co., 204 NY 281, 287; see, McKinney’s Cons Laws of NY, Book 1, Statutes § 72). Consequently, any intention to change such a well-established rule must emanate from the Legislature and may not be imputed to the Legislature in the absence of a clear manifestation of such intent (Hammelburger v Foursome Inn Corp., supra, at 592, citing Matter of Delmar Box Co. [Aetna Ins. Co.] 309 NY 60, 66). Especially is this so where the Legislature has acted upon a statute with knowledge of uniform judicial decisions interpreting the statute as then existing, a proposal is offered to rebut the interpretation, and the actions taken do not alter the judicial interpretation, for then the Legislature must be regarded as having legislated in the light of, and as having accepted, such interpretation (Engle v Talarico, supra, at 242; Orinoco Realty Co. v Bandler, 233 NY 24, 30; see, State of New York v Mobil Oil Corp., 38 NY2d 460, 465; RKO-Keith-Orpheum Theatres v City of New York, 308 NY 493, 500). Indeed, we have recently relied on unsuccessful attempts in the Legislature to amend a statute following our interpretation of the statute as evidence that our interpretation correctly reflected the intent of the Legislature (see, Matter of Bliss v Bliss, 66 NY2d 382, 389; see also, Heller v U. S. Suzuki Motor Corp., 64 NY2d 407, 411; New York State Bankers Assn. v Albright, 38 NY2d 430, 438). Thus, it is a recognized principle that where a statute has been interpreted by the courts, the continued use of the same language by the Legislature subsequent to the judicial interpretation is indicative that the legislative intent has been correctly ascertained (Matter of Curtin v City of New York, 287 NY 338, 342; Matter of Gilmore v Preferred Acc. Ins. Co., 283 NY 92, 97; Transit Commn. v Long Is. R. R. Co., 253 NY 345, 354-355). The underlying concern, of course, is that public policy determined by the Legislature is not to be altered by a court by reason of its notion of what the public policy ought to be (Hammelburger v Foursome Inn Corp., supra, at 592; see, Waddey v Waddey, 290 NY 251, 256; cf., Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 436 [Breitel, J., dissenting]).

Consideration of all the circumstances surrounding the 1981 amendment to the Shield Law leads inexorably to the conclusion that the Legislature, by considering and rejecting an explicit provision addressing the issue facing the court today, did not intend the Shield Law to create an "absolute privilege” against disclosure. That the 1981 amendments did not alter the established requirement of confidentiality was noted by the Attorney-General who, in analyzing the 1981 amendment at the time of its enactment, specifically remarked that the legislation did not protect journalists when the requested information was not confidential (Mem of Attorney-General, July 8, 1981, Governor’s Bill Jacket, L 1981, ch 468). Of course, the opinion of the Attorney-General as to the scope of the statute is not binding on this court, nor is it dispositive of the intent of the Legislature. Nevertheless, it can hardly be dismissed as "essentially irrelevant in this case” (dissenting opn, at 166). To the contrary, we have long recognized that a contemporaneous interpretation of a statute is entitled to considerable weight in discerning legislative intent and have specifically relied in this respect on correspondence in the Bill Jacket from the Attorney-General (see, e.g., Matter of Niagara Mohawk Power Corp. v Public Serv. Commn., 69 NY2d 365, 374; see also, Shiles v News Syndicate Co., 27 NY2d 9, 20 [Breitel, J., dissenting]; McKinney’s Cons Laws of NY, Book 1, Statutes § 128). All the more relevant is the opinion of the Attorney-General in this case for nothing else in the Governor’s Bill Jacket concerning the 1981 amendments discusses the confidentiality requirement. The legislative history relied on by the dissent is confined exclusively to the Memorandum prepared by the legislative sponsor (see, dissenting opn, at 164, citing 1981 Legis Ann, at 257-258). Certainly, it is true, as the sponsor’s Memorandum makes clear, that the proposed amendments sought to persuade the Legislature to overrule prior court decisions requiring a cloak of confidentiality. The views of one legislator, however, are not necessarily revealing of the legislative intent (see, Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60, 67, supra; Matter of Morse [Bank of Am.] 247 NY 290, 302-303; Woollcott v Shubert, 217 NY 212, 221); rather, the dispositive fact here is that the Legislature adopted an amendment which on its face does not address confidentiality but did address other concerns about the scope of the statute. Thus, despite the clear attempt by the sponsor to alter the settled rule, the Legislature did not accept the sponsor’s recommendation, and in so doing confirmed the prior court decisions requiring confidentiality as a prerequisite to protection under the Shield Law. In sum, the long-standing interpretation of the Shield Law should not be judicially abrogated where the Legislature has considered that interpretation and explicitly declined to amend the statute to overcome it.

Moreover, it is worth noting that the confidentiality requirement, which has been the settled law of this State for over a decade, is consistent with the legislative history surrounding the enactment of the Shield Law in 1970. In fact, the Bill Jacket before Governor Rockefeller is replete with references to the importance of protecting reporters’ confidential sources and information. In any event, whether or not the Legislature created the confidentiality requirement in 1970 is not dispositive for such a requirement became the well-settled law by 1981 and the Legislature’s refusal to repudiate that interpretation, despite an explicit proposal to that effect, is compellingly persuasive evidence of the legislative intent. Nor is the fact that this court had never decided the issue entitled to great weight in determining the legislative intent in 1981. In fact, the Legislature was aware in 1981 that the controlling authority in every judicial department in this State required confidentiality; indeed, it was for this reason that the sponsor of the proposed amendment sought to amend the statute. Under these circumstances, the failure of the Legislature to adopt the proposed amendment abrogating the confidentiality requirement is persuasive evidence of the legislative intent.

III

In regard to the constitutional claims raised by KnightRidder, we agree with the Appellate Division that whatever qualified privilege may exist under the First Amendment to the United States Constitution does not protect the material sought here since the taped interview presumably contains relevant information necessary to the Grand Jury investigation and unavailable from other sources (see, Branzburg v Hayes, 408 US 665, 710; People v Korkala, 99 AD2d 161, 166-168, supra). Any claims under the State Constitution are not preserved for our review (People v Lancaster, 69 NY2d 20, 31).

IV

Based on the foregoing, the order of the Appellate Division should be modified, with costs, to the extent of dismissing the motion because of mootness and the certified question answered in the negative.

Bellacosa, J.

(dissenting). By enactment of a strong Shield Law (Civil Rights Law § 79-h) protecting sources and materials gathered from news sources, New York became the first State to broadly enhance the root freedom of the press right, itself traceable to the free press provision of the New York Constitution (art I, § 8). New York should not, through its judiciary, encumber the plain legislative policy choices made in the governing statute’s own words. Since the majority’s holding does that, I dissent.

The District Attorney’s effort to penetrate that shield by subpoena to acquire outtakes of a televised news item should not be judicially enforced because confidentiality in the gathering of the news from a news source should not be added by Judges as a condition to the invocation of New York’s Shield Law protections. That judicial gloss transforms the statute. Indeed, the majority opinion cannot disguise what it effects by "interpretation”, "judicial construction” and "legislative intent”. They functionally enact their own amendment to the core provision of the Shield Law by striking the word "any” and substituting the word "some”, so that the protection is now only afforded to "some news” rather than "any news”, as the Legislature enacted it and as the Governor signed it into law. The statutory language, its legislative history, and our recent precedents involving the Shield Law, all buttress the analysis which should result in reversal and quashing of the subpoena.

The majority’s holding produces a classic irony. New York State’s judiciary, which should be the bastion of protection of this right afforded by the elected representatives of the people of this State, instead chills that right by inserting its own confidentiality clause into an unqualified statute. Their holding may be reduced to this syllogism: (1) the lower courts put confidentiality into the statute; (2) the judiciary then says that the Legislature did not take it out; and (3) the judiciary finally declares that the Legislature put it in in the first place.

The Appellate Division in this case observed that, subsequent to initial enactment, the Shield Law was judicially interpreted as guarding from disclosure material which was received only under a cloak of confidentiality. The court then reasoned that a 1981 amendment to the statute did not eliminate the judicially fashioned cloak of confidentiality since, in an earlier study bill draft, the amendment proposed a provision expressly eliminating the confidentiality requirement which was not present in the version passed into law two years later. In cases after the passage of the amendment, the Appellate Divisions still regarded the judicially created confidentiality requirement as still constituting an element to the invocation of the privilege (Oak Beach Inn Corp. v Babylon Beacon, 92 AD2d 102, affd 62 NY2d 158; Matter of Pennzoil Co., 108 AD2d 666; People v Korkala, 99 AD2d 161; Hennigan v Buffalo Courier Express Co., 85 AD2d 924).

Relying on the reasoning of People v Korkala (99 AD2d 161, supra), the court below concluded that in light of the judicial construction of the Shield Law at the time of the 1981 amendment, an intention to alter that construction would not be imputed to the Legislature (id., at 166). The Appellate Division also found persuasive a memorandum by the Attorney-General, which was received by the Governor after he signed the 1981 amendment into law. In material part, the Attorney-General stated: "this version does not protect journalists from * * * contempt for failure to divulge requested information [which] * * * is not confidential” (Mem of Attorney-General, July 8, 1981, Governor’s Bill Jacket, L 1981, ch 468).

The controlling rule of statutory construction is that a court should look first to the particular statutory language and be guided by its natural and most obvious meaning (see, Matter of Monarch Elec. Contr. Corp. v Roberts, 70 NY2d 91, 97; Matter of Capital Newspapers v Whalen, 69 NY2d 246, 251; Price v Price, 69 NY2d 8, 15; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459; Association of Contr. Plumbers v Contracting Plumbers Assn., 302 NY 495, 500). "[I]f there is nothing to indicate a contrary intent, terms of general import will ordinarily be given their full significance without limitation” (Price v Price, 69 NY2d 8, 15, supra; see also, Matter of Board of St. Opening, 133 NY 329, 333-334). The Shield Law exempts professional journalists and newscasters from being held in "contempt by any court, legislature or other body having contempt powers for refusing or failing to disclose any news or the source of any news” (Civil Rights Law § 79-h [b] [emphasis added]). This operative clause of the Shield Law has not changed since the statute’s initial enactment in 1970.

The statute unequivocally protects the media from disclosure of "any” news or news source. We have long recognized that the word "any” imports no limitation (Matter of Beach, 154 NY 242, 247), that "[a]ny is an all-exclusive word” (Randall v Bailey, 288 NY 280, 285), and that it "means 'all’ or 'every’ ” (Zion v Kurtz, 50 NY2d 92, 104). This construction of the plain, unqualified term "any” would also be consistent with judicial interpretations from other States of their own shield laws protecting "any” news, information or source (see, Austin v Memphis Publ. Co., 655 SW2d 146, 150 [Tenn]; Grand Forks Herald v District Ct, 322 NW2d 850, 854 [ND]; Playboy Enters. v Superior Ct., 154 Cal App 3d 14, 22, 201 Cal Rptr 207; Hammarley v Superior Ct, 89 Cal App 3d 388, 397, 153 Cal Rptr 608).

There is no ambiguity in the language of New York’s statute. In fact, the District Attorney concedes that the statute, on its face, is unqualified and does not explicitly provide that news acquired only in confidence is protected (respondent’s brief, at 11, 22). Nonetheless, he argues and the majority accepts that a confidentiality requirement is a part of the Shield Law protections because it is part of other evidentiary privileges. The argument would have the courts incorporate confidentiality by reference.

I cannot accept that premise and that argument because each of the analogized privileges is set forth in CPLR article 45, entitled "Evidence”, and each contains an express confidentiality component designed to confer a privilege on the utterer. The Shield Law, on the other hand, is contained in the Civil Rights Law, indicative of a legislative intent to differentiate and to treat uniquely this statutory enhancement of the State and the Federal constitutional protections of a free press. Distinctly contrary to other privileges, the Shield Law is designed to confer its unqualified privilege on the listener, the public transmitter of the information as news.

We have also long recognized that "a particular construction of a statute should be preferred which furthers the statute’s objective, spirit and purpose” (Price v Price, 69 NY2d 8, 16, supra; Matter of Petterson v Daystrom Corp., 17 NY2d 32, 38-39; Matter of New York Post Corp. v Leibowitz, 2 NY2d 677, 685-686). The legislative history of the Shield Law as of the time of its initial enactment, and of the subsequent amendments reacting to certain judicial constructions, establishes that no qualification of confidentiality was ever legislatively adopted or ratified.

Enacted in 1970, it was described as making New York "the only State that clearly protects the public’s right to know and the First Amendment rights of legitimate [professional journalists and newscasters]” (Governor’s Approval Memorandum, 1970 NY Legis Ann, at 508). It was specifically stated in the Approval Memorandum that the information protected included all "written, oral, and pictorial information and communications” (id.). Taken as a whole, the legislative history of this initial enactment displays a firm conviction by the Legislature and the Governor to shield journalists and newscasters from being compelled to reveal any information, material, or sources. There is nothing in the legislative history cloaking the privilege with confidentiality.

Virtually every State court case construing the Shield Law between the date of enactment and its subsequent amendments in 1975 and 1981 nevertheless added, as a judicial overlay, the requirement of confidentiality (see, Phelan, Beach v Shanley: An Expansive Interpretation of New York’s "Shield Law”, 49 Alb L Rev 748, 764 [1984-1985]). Yet, this is the first opportunity this court has had to address that precise issue.

The Legislature took steps in the interim to strengthen the Shield Law and to overcome, where it found it necessary, the constructions that were being applied by the courts. In 1975, the Legislature added an ingredient pertaining to Grand Juries (L 1975, ch 316, § 1). Subsequently, in 1981, three other significant changes were made. The class of protected persons was expanded to include free-lance journalists and broadcast media; information acquired in violation of the statute was made inadmissible as evidence; and the newspersons’ protection was expanded to include information which was not solicited by the newspersons (L 1981, ch 468).

The legislative history which accompanied these amendments reveals that the Legislature understood the Shield Law, as originally enacted, to afford an unqualified privilege to journalists and newscasters, and that the amendments were intended to fortify the original intent (see, Mem in Support, 1975 NY Legis Ann, at 38). The Memorandum in Support of the 1981 amendment explains that the purpose of the bill is to "correct loopholes and fill gaps in the existing statute”, "guarantee[ ] absolute coverage for persons professionally engaged in a news gathering capacity”, and "grant[ ] the journalist sole determination as to when that protection may be waived” (1981 NY Legis Ann, at 257). The Memorandum noted that "[c]ase history makes it abundantly clear that the courts have been all too often disinclined to follow the letter or even the spirit of existing law” (id., at 257). The sponsor’s Memorandum of Support even added in prescient terms: "in the event (entirely expected) that the courts, (irrespective of this bill’s attempt to fill case-by-case, precedent-by-precedent the gaps and established loopholes of the existing statute by use of strengthened language) still arrogate to themselves the power to pierce the absolute privilege of confidentiality for journalists so intended by the Legislature, then such information forced disclosed is to be declared incompetent” (id., at 258). Evidencing a desire to champion the intended free press objectives of the statute over the grudging judicial constructions applied to it, the Memorandum in Support proclaimed that "[i]t is in the interests of society as a whole that the Legislature mandate absolutely and without qualification the protection of journalists from being compelled to produce information or reveal sources” (id., at 258). Moreover, in the Senate floor debate concerning the amendment which took place immediately prior to its overwhelming passage, the Shield Law was described as "the law that allows the press not to disclose their sources and information” and the amendment as "merely solidifying] the original intent of the law and correcting those areas which have been pierced by court decisions” (NY State Senate Stenographer’s Record, Regular Session 1981, at 4957).

Interestingly, in the period between enactment of the 1981 amendment and this court’s decision in 1984 in Matter of Beach v Shanley (62 NY2d 241), some trial courts began themselves to pull back from the confidentiality requirement, noting that it never did encumber the plain protections afforded by the statute even in its original enactment (see, People v Iannaccone, 112 Misc 2d 1057; Lawless v Clay, 9 Media L Rep 1223 [BNA]; Wilkins v Kalla, 118 Misc 2d 34; CBA Elecs. v Ellenberg, 10 Media L Rep 1095 [BNA]). The Appellate Divisions, on the other hand, adhered to their view that the Shield Law contained a cloak of confidentiality (Hennigan v Buffalo Courier Express Co., 85 AD2d 924, supra; People v Korkala, 99 AD2d 161, supra; Matter of KnightRidder Broadcasting v Greenberg, 119 AD2d 68; Matter of Pennzoil Co., 108 AD2d 666, supra).

Legislative inaction, in any event, with respect to a facially plain core provision should not prevail to bring about a result contrary to the enacted legislative language (Matter of Heller-stein v Assessor of Town of Islip, 37 NY2d 1, 10, 13). Additionally, this court, in its decisions in Oak Beach Inn Corp. v Babylon Beacon (62 NY2d 158, supra) and Matter of Beach v Shanley (62 NY2d 241, supra), provided a fresh sense of direction which should have been persuasive in deciding this case.

We quashed a subpoena in Matter of Beach v Shanley (supra) relying on the plain meaning of the Shield Law and the legislative intent behind its original enactment and subsequent amendments. We observed that "the statute precludes any body from having a reporter held in contempt, fined or imprisoned for refusing to disclose news or the identity of a source, regardless of whether the information is highly relevant to a governmental inquiry and whether the information was solicited or volunteered” (Matter of Beach v Shanley, 62 NY2d 241, 251, supra). We stated that "[t]he inescapable conclusion is that the Shield Law provides a broad protection to journalists without any qualifying language” (id., at 251 [emphasis added]). The conclusion reached upon application of this rule to the facts there was that "[although this may thwart a Grand Jury investigation, the statute permits a reporter to retain his or her information, even when the act of divulging the information was itself criminal conduct” (id., at 252; see also, Matter of Stern v Morgenthau, 62 NY2d 331, 335).

On the same day. as Beach (supra), in Oak Beach Inn Corp. v Babylon Beacon (62 NY2d 158, supra), we dealt with the Shield Law in a civil context. We held that "[t]he Shield Law’s unqualified immunity from contempt granted to journalists who refuse to disclose their sources, would preclude a court from employing that remedy against such a journalist in a civil case, even in those rare instances where it might otherwise be considered the only appropriate or effective remedy” (Oak Beach Inn Corp. v Babylon Beacon, 62 NY2d 158, 166, supra [emphasis added]).

Continued reliance by the majority and courts below on the letter of the Attorney-General in interpreting the 1981 amendment should not be controlling or even persuasive. That opinion came after Governor Carey signed the amendment into law and, thus, does not reflect information before either the Governor or the Legislature. Moreover, the materials in the Bill Jacket overwhelmingly support the view that the Shield Law does provide an unqualified privilege. The Attorney-General’s letter standing alone is insufficient, even if it had been timely, to supplant the language of the statute itself. Simply put, that letter is not even part of the legislative history and is essentially irrelevant in this case for that very reason.

With respect to the majority opinion, it suffices to express a view only as to several of its fundamental flaws.

It twice asserts (at 155,158) that the courts should not substitute their policy views for those of the Legislature. The irony of that assertion is that that is precisely what the majority is doing and what the courts have persistently done by imposing a confidentiality requirement when the Legislature has clearly not done so in the statute itself (Lane, Legislative Process and Its Judicial Renderings: A Study .in Contrast, 48 U Pitt L Rev 639 [1987]).

It violates a threshold statutory construction rule when it proceeds directly to a discussion of legislative history without addressing or even quoting the plain language of the statute (id., at 652). Their reliance on the principle and cases noting legislative acquiescence by awareness of judicial interpretations is rebuffed by our direct holding in the classic case of Matter of Hellerstein v Assessor of Town of Islip (37 NY2d 1, 10 [per Wachtler, J.], supra) where we said: "the application of this principle [of legislative acquiescence] presupposes first, that the statute is capable of more than one interpretation, and secondly, that our court has not previously resolved the ambiguity”. Neither of those two conditions is present to make the majority’s major premise operative in this case.

It inexplicably gives the Attorney-General’s 1981 opinion significant impact on this case. That opinion came after the bill was enacted and it comes from an official who has absolutely nothing to do with the enactment process or the interpretative process.

Finally, the majority uses bootstrapping by referring to a "well-settled rule of confidentiality” for over a decade in this State. This cannot be the same rule that has been hotly debated in the Legislature, vigorously litigated in the courts, persistently contested by the media over the past 17 years, and sharply divides this very court by a 4-3 vote. Then, these remarkable coups de grace are delivered in that respect: (1) the negative legislative intent concerning the 1981 amendments is immunized from the fact that this court at that time had never even passed on the issue and the majority adds that this court’s silence is of no great weight anyway in determining what the Legislature failed to do with respect to a judicial artifact of confidentiality; and (2) most astonishing of all, the majority asserts that this court’s only clear statements on the subject, when they finally did emerge in 1984 in two cases, are of no consequence and are relegated to a denigrating end-piece footnote in the majority opinion. Stare decisis and respect for our own words and for this court’s rank as the ultimate interpretative policy voice seems absent here.

The Legislature of this State has made a very significant policy decision that the interests of the public would be best served by allowing newspeople to protect their materials and sources even if it impedes a criminal investigation and this court has endorsed that policy (see, 1970 NY Legis Ann, at 33, 508; see also, Matter of Beach v Shanley, 62 NY2d 241, 251, supra; Matter of Stern v Morgenthau, 62 NY2d 331, 335, supra), up to today. The policies and the precedents are good ones and the courts should not reverse course and constrict the plain policy choice enacted by the Legislature in the statute’s own words which have not been changed in the key formulation since first passage.

I believe it is unwise for the judiciary to transmogrify newspeople into agents of the government to collect evidence, and I would reverse and quash the subpoena.

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

Order modified, with costs to respondent, to the extent of dismissing the motion to quash for mootness and, as so modified, affirmed. Certified question answered in the negative.

      . The Appellate Division also found no merit to Knight-Ridder’s First Amendment claim.

      . The Appellate Division certified the following question: "Did this court err in reversing Supreme Court’s order and remitting the matter to the Supreme Court for an in-camera inspection of the taped interview with Donald Bent to determine what portions, if any, of such interview, were conducted confidentially?” Although Donald Bent was indicted subsequent to the Appellate Division decision, and the questions presented by this appeal are thus moot, the case is one which should be preserved as an exception to the mootness doctrine (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707; Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 381).

      . In 1975, the Legislature had amended the statute by adding a provision which gave the news media immunity from disclosing sources of information in Grand Jury appearances. Further attempts at extending the scope of the statute in 1979 were not reported out of committee.

      . The dissent’s reliance on the familiar axiom that in construing a statute, a court should look first to the particular statutory language and be guided by its natural and most obvious meaning (dissenting opn, at 162) is misplaced. Such an approach fails to recognize that where a court is faced with a long-standing interpretation of a statute, a vigorous attempt to legislatively amend the settled interpretation, and the legislative renunciation of such attempt, the absence of facial ambiguity is not conclusive; rather "[s]ound principles of statutory interpretation * * * require examination of a statute’s legislative history and context to determine its meaning and scope” (New York State Bankers Assn. v Albright, 38 NY2d 430, 434; see, Uniformed Firefighters Assn. v Beekman, 52 NY2d 463, 471).

      . See, e.g., letter of New York State Publishers Association, Apr. 22, 1971; mem of New York State Broadcasters Association, May 9, 1970; letter of WCBS, Apr. 30, 1970; letter of WNEW-TV, May 11, 1970; affidavit of Walter Cronkite, Apr. 1, 1970; affidavit of Mike Wallace, Mar. 31, 1970; affidavit of Dan Rather, Mar. 31, 1970, all contained in the Governor’s Bill Jacket, L 1970, ch 615.

      . Neither of our recent decisions in Matter of Beach v Shanley (62 NY2d 241) or Oak Beach Inn Corp. v Babylon Beacon (62 NY2d 158) is inconsistent with the confidentiality requirement as confidentiality was not at issue in either case and as we have long recognized, "principles are not established by what was said, but by what was decided, and what was said is not evidence of what was decided, unless it relates directly to the question presented for decision” (People ex rel. Metropolitan St. Ry. Co. v State Bd. of Tax Commrs., 174 NY 417, 447; see, People v Bethea, 67 NY2d 364, 368, n).