text:
    The People of the State of New York, Respondent, v Warren Aiken, Appellant.
    Argued June 2, 1978;
    decided July 11, 1978

      POINTS OF COUNSEL

      Joseph D. De Salvo for appellant.
    I. Defendant-appellant was denied his constitutional right to due process in the court proceedings below by reason of the fact that the actions of his attorney deprived him of the effective assistance of counsel and further that his defense was so inadequate and ineffective that he was deprived of a fair trial. (People v Fryson, 36 Misc 2d 73; United States v Tramunti, 513 F2d 1087; United States ex rel. Mitchell v La Vallee, 417 F Supp 154; Coles v Peyton, 389 F2d 224; Brubaker v Dickson, 310 F2d 30; People v La Bree, 34 NY2d 257; People v Ramos, 53 AD2d 703.) II. The decision of the court below failed to address itself to the claim of defendant-appellant on appeal.

      Carl A. Vergari, District Attorney (Anthony J. Servino of counsel), for respondent.
    Defendant’s trial was fairly conducted and in all respects comported with the dictates of due process. Defendant was not denied the effective assistance of counsel. (Illnios v Allen, 397 US 337; People v Johnson, 45 AD2d 1030; Peple v Byrnes, 33 NY2d 343; People v Epps, 46 AD2d 890; United States v Tortora, 464 F2d 1202, cert den sub nom. Santoro v United States, 409 US 1063; Taylor v United States, 414 US 17; People v Vega, 80 Misc 2d 59; People v Hicks, 90 Misc 2d 609; People v Brabson, 9 NY2d 173; People v Tomaselli, 7 NY2d 350.)
   OPINION OF THE COURT

Jasen, J.

This appeal raises the issue whether appellant, who voluntarily and willfully absented himself from trial, was denied the right to effective assistance of counsel.

In the late evening hours of July 24, 1970, two detectives of the New Rochelle Police Department, on patrol in an unmarked car, received a call directing them to proceed to a private residence in New Rochelle. Upon arriving at the subject premises and approaching the house, one of the detectives observed a figure drop to the ground and attempt to roll under shrubbery adjacent to the house. Shining a flashlight on the figure, the detective ordered that he roll out onto the grass, a directive with which appellant, clad in gloves, complied. Contemporaneous with the appellant’s apprehension, the arresting detective’s partner conducted a search of the remainder of the premises, during the course of which he engaged in an unsuccessful attempt to apprehend a second individual whom he had also observed drop from the second floor balcony. Subsequent investigation of the house revealed that a windowpane in a door on the second floor balcony had been broken and the door itself left ajar. The master bedroom lay in a state of disarray, with the contents of a dresser drawer having been dumped on the floor.

Appellant, together with another, William Thorne, was indicted and charged with burglary in the second degree. (Penal Law, § 140.25.) Although the case was set down for trial on December 13, 1971, appellant failed to appear, necessitating the issuance of a bench warrant for his arrest. Appellant did appear the following day, and, after adjournment, the trial began with the voir dire of the jurors on December 15. Inasmuch as only nine jurors were selected that day, the voir dire was scheduled to continue on the 16th; however, appellant failed to appear. When on the 17th appellant again did not appear, the court found appellant’s absence willful and voluntary and, therefore, ordered that the trial proceed in his absence, notwithstanding that only nine jurors had been sworn. Appellant’s retained counsel moved for a mistrial on the ground that jeopardy had not yet attached. The court denied the motion and directed counsel to continue with appellant’s defense in his absence.

At the conclusion of the trial, the jury returned a verdict convicting appellant of burglary in the second degree, but acquitted his codefendant Thorne, who was present throughout the trial and represented by separate counsel. The Appellate Division unanimously affirmed the conviction. On this appeal, appellant maintains that he was denied the right to effective assistance of counsel. Specifically, he points to counsel’s waiver of an opening and closing statement; failure to cross-examine witnesses called by either the People or his codefendant; failure to call witnesses to testify on appellant’s behalf; and, finally, failure to object to the introduction of any evidence by either the People or his codefendant.

Upon this record, we hold that appellant was not denied the right to effective assistance of counsel. At the outset, we note that although a defendant charged with a felony not punishable by death may, by his voluntary and willful absence from trial, waive his right to be present at every stage of his trial and to confront witnesses .who testify against him (People v Epps, 37 NY2d 343, 349, cert den 423 US 999; People v Johnson, 37 NY2d 778, 779; People v Byrnes, 33 NY2d 343, 349; People ex rel. Lupo v Fay, 13 NY2d 253, 257, cert den 376 US 958; People v Winship, 309 NY 311, 313; People v La Barbera, 274 NY 339, 343), he may not, by absence alone, waive his right to effective assistance of counsel. (See People v Johnson, supra.) This right, guaranteed by both the Federal and State Constitutions (US Const, 6th Arndt; NY Const, art I, § 6; see People v Medina, 44 NY2d 199, 207), is not, we have often said, susceptible to precise delineation. (See People v Droz, 39 NY2d 457, 462; People v La Bree, 34 NY2d 257, 260; People v Bennett, 29 NY2d 462, 466.) Nonetheless, given the judicial need for the application of some standard with which to gauge the representation provided by defense counsel, we have attempted in the past to formulate a threshold standard, and, in so doing, have held that although counsel’s representation of a defendant need not be errorless (People v La Bree, 34 NY2d, at pp 260-261, supra), it must not be such as to render the defendant’s "trial a farce and a mockery of justice”. (People v Brown, 7 NY2d 359, 361, cert den 365 US 821; People v Bennett, 29 NY2d, at p 467, supra; People v Tomaselli, 7 NY2d 350, 354.) In recent years, however, we have displayed a greater desire to avoid the confining strictures of a standard presumptively applicable to all cases. In People v Droz (supra), for example, rather than measuring the quality of counsel’s representation of the defendant in terms of the "mockery of justice” standard, we concluded only that upon the facts of that case counsel’s omissions and errors precluded us from finding that his representation of the defendant "was adequate or effective in any meaningful sense of the words.” (39 NY2d, at p 463, supra.)

We recognize that in our quest for the development of a flexible framework within which to ensure a defendant’s right to receive effective legal representation, we are not alone. Particularly in the Federal courts there rages intense debate over the level of legal representation which can be said to constitute ineffective counsel. While a number of the Circuit Courts of Appeals continue to apply the traditional "mockery of justice” standard (see, e.g., Rickenbacker v Warden, 550 F2d 62, 65, cert den 434 US 826; United States v Madrid Ramirez, 535 F2d 125, 129; Coney v Wyrick, 532 F2d 94, 98-99), it would appear that the majority of circuits have adopted a more stringent standard of "reasonable competence” (see, e.g., United States v Fessel, 531 F2d 1275, 1278; United States v Elksnis, 528 F2d 236, 238; United States v Toney, 527 F2d 716, 720, cert den 429 US 838; United States v De Coster, 487 F2d 1197, 1202; United States ex rel. Spencer v Warden, 545 F2d 21, 25 [minimum standard of professional representation]; United States ex rel. Johnson v Johnson, 531 F2d 169, 174, cert den 425 US 997 [exercise of customary skill and knowledge]).

In the present case, however, application of either standard mandates the conclusion that appellant was not denied the right to effective assistance of counsel. Whether representation of counsel was effective cannot be determined in a vacuum. An act or omission on the part of counsel, which in one case might constitute error, need not constitute error in all cases. The right to counsel was not intended to afford a defendant, aided by the wisdom of hindsight, to second guess matters of trial strategy employed by counsel. Significantly, although a defendant may not, by absence alone, waive his right to effective legal representation, his absence must, of necessity, be taken into consideration on the issue of counsel’s effectiveness. To be sure, a defendant’s absence from trial may severely hamper even the most diligent counsel’s ability to represent his client effectively.

Before analyzing appellant’s specific contentions as to his counsel’s alleged ineffectiveness, we emphasize that a defendant who absents himself from trial may not succeed on appeal by raising counsel’s purported ineffectiveness where counsel affirmatively, as a matter of trial strategy, sought to obstruct the trial of his client. Having previously held that a defendant who voluntarily and willfully absents himself from trial waives his right to confrontation and to be present at his trial, we would erode, if not destroy, the significance of that ruling were we to reverse an absented defendant’s conviction because of counsel’s refusal to actively participate at trial. To do otherwise would be to permit defendant’s counsel to accomplish that which we will not permit a defendant to accomplish himself: that is, to render his trial a nullity. For this reason, we reject appellant’s contention that defense counsel’s conduct, viewed as a consequence of counsel’s belief that a mistrial should have been granted and his unwillingness to act in a manner which might jeopardize his objection to appellant’s trial in absentia, constituted ineffective legal representation. Instead, we view counsel’s conduct as indicative of a conscious strategic decision designed to pressure the trial court into declaring a mistrial. As such, the wisdom of counsel’s decision can provide no basis for appellant’s claim that he was denied effective counsel.

In analyzing appellant’s specific contentions as to counsel’s alleged ineffectiveness, we begin with counsel’s waiver of an opening and closing statement. Standing by itself, a waiver of either statement is not necessarily indicative of ineffective legal representation. (See United States v Robinson, 502 F2d 894, 896; People v Goodwin, 24 111 App 3d 1090, 1095.) In a case such as appellant’s where the defendant is apprehended at the scene of the crime, counsel, having little or nothing of an affirmative nature to offer the jury, may, as a matter of trial strategy, decline to make an opening and closing statement. (See Finer, Ineffective Assistance of Counsel, 58 Cornell L Rev 1077, 1093-0194, 1106-1107.)

Similarly, defense counsel’s failure to cross-examine witnesses or to call witnesses of his own on behalf of appellant is again traceable to the particular facts of this case. It cannot be seriously contended that the People had anything but a strong case against appellant. From this vantage point, we cannot say that counsel erred in choosing not to cross-examine witnesses presented by either the People or codefendant Thorne. This decision may properly have been made on the theory that lacking any point of substance, counsel was best advised to forego cross-examination, rather than reinforce in the minds of the jury the witnesses’ testimony. (See, e.g., United States v Robinson, 502 F2d, at p 897, supra; Frand v United States, 301 F2d 102, 103; Finer, Ineffective Assistance of Counsel, 58 Cornell L Rev 1077, 1096-1098.) And, of course, as for counsel’s failure to call any witnesses on behalf of appellant, the record speaks for itself. Counsel may be reasonably expected to call upon witnesses to testify on behalf of a defendant only when such witnesses exist. (Cf. People v Stevenson, 60 Mich App 614, 617.) Counsel is placed in a particularly difficult position when, as in this case, a defendant absents himself from trial, depriving counsel of the benefit of his assistance in the process of bringing forth witnesses to testify on his behalf.

As a final point of contention, appellant urges that counsel erred in failing to object to the introduction of any evidence at trial. Notwithstanding this allegation, appellant points to no evidence, and our examination of the record discloses none, which was inadmissible and should have been objected to by defense counsel.

In concluding that appellant was not denied effective assistance of counsel, we would add that we do not view the distinction between retained and appointed counsel, proffered by respondent, as bearing upon the resolution of this case. Admittedly, courts have in the past drawn a distinction between appointed and retained counsel, holding a defendant represented by the latter to a heavier burden of proof on the issue of counsel’s ineffectiveness, on the theory that retained counsel, as an agent of the defendant, is subject to his control. (See, e.g., United States ex rel. Darcy v Handy, 203 F2d 407, 426, cert den sub nom. Maroney v United States ex rel. Darcy, 346 US 865; Weatherman v Peyton, 287 F Supp 819, 823.) However, we view this distinction as strained, and as one which obscures the basic issue: that is, whether a defendant’s counsel, appointed or retained, failed to provide effective legal representation, thereby depriving the defendant of a fair trial. To presume that a defendant represented by retained counsel has the capability to discern during the course of trial that his legal representation is ineffective, let alone exert meaningful control over counsel’s conduct, is, in our opinion, unwarranted, either in theory or in practice. (See Fitzgerald v Estelle, 505 F2d 1334, 1336, cert den 422 US 1011; United States ex rel. Williams v Twomey, 510 F2d 634, 640, cert den 423 US 876.)

Finally, we hasten to comment that we are cognizant of the jury’s verdicts convicting appellant of burglary in the second degree and yet acquitting his codefendant Thorne of the same crime. However, in light of the fact that Thorne was not apprehended at the scene of the crime, as was appellant, we cannot say that the divergent jury verdicts occurred as a result of the allegedly ineffective trial conduct of appellant’s counsel.

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

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.


source: Caselaw Access Project

author: Chief Judge Breitel.

license: Public Domain

text:
    Helen E. Jones, Individually and as President of the Society for Animal Rights, Inc., as Chairman of the Citizens for Animals, and as Guardian for All Animals Now Confined in the Queens, Prospect Park and Central Park Zoos, et al., Appellants, v Abraham D. Beame, Individually and as Mayor of the City of New York, et al., Respondents. Richard J. Bowen, as City Manager of the City of Long Beach, et al., Respondents, v State Board of Social Welfare of the State of New York et al., Appellants.
    Argued April 27, 1978,
    June 2, 1978;
    decided July 13, 1978

      POINTS OF COUNSEL

      Henry Mark Holzer, P. C., for appellants in the first above-entitled action.
    I. In light of the court’s recent "standing” decisions and the principles consistently enunciated therein, plaintiffs, or at least one of them — national animals rights organizations and their members, committees to close the city’s zoos and their members, and city residents and taxpayers — are proper parties to request that a summary inquiry be commenced pursuant to section 1109 of the city charter (cause of Action 1), and/or have standing to seek a judgment. (Byrn v New York City Health & Hosps. Corp., 38 AD2d 316, 31 NY2d 194, 409 US 821; Sierra Club v Morton, 405 US 727; Columbia Gas of N. Y. v New York State Elec. & Gas Corp., 28 NY2d 117; Data Processing Serv. v Camp, 397 US 150; National Organization for Women v State Div. of Human Rights, 34 NY2d 416; Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1; Flast v Cohen, 392 US 83; Baker v Carr, 369 US 186; Boryszewski v Brydges, 37 NY2d 361.)

      Allen G. Schwartz, Corporation Counsel (Renee Modry and Leonard Koerner of counsel), for respondents in the first above-entitled action.
    I. Notwithstanding the recent liberalized view of standing in this State, the operation of the city’s zoos into which plaintiffs seek to inject themselves is so inappropriate for judicial supervision and claims of illegality are so tenuous that plaintiffs should be held without standing to maintain this action. (Boryszewski v Brydges, 37 NY2d 361; Matter of Abrams v New York City Tr. Auth., 39 NY2d 990; James v Board of Educ., 42 NY2d 357; Jones v Butz, 374 F Supp 1284, 419 US 806; Matter of Perazzo v Lindsay, 30 AD2d 179, 23 NY2d 764; Walz v Baum, 42 AD2d 643, 33 NY2d 517; Sheafer v Green, Inc., 263 App Div 135; Brody v Save Way Northern Blvd., 19 AD2d 714, 14 NY2d 576; Amberg v Kinley, 214 NY 531; City of Rochester v Campbell, 123 NY 405.) II. Plaintiffs do not state a cause of action under section 1109 of the New York City Charter. (Matter of Mitchel v Cropsey, 177 App Div 663.)

      Louis e7. Lefkowitz, Attorney-General (A. Seth Greenwald and Samuel A. Hirshowitz of counsel), for appellants in the second above-entitled action.
    I. There is no cause of action and the complaint does not state one, even if there were one. (Matter of Perazzo v Lindsay, 30 AD2d 179, 23 NY2d 764; Gaynor v Rockefeller, 15 NY2d 120; Tobin v Ingraham, 67 Misc 2d 990; Kalmanash v Smith, 291 NY 142; Stuberfield v Long Is. City Sav. & Loan Assn., 37 Misc 2d 811; Gerdes v Reynolds, 281 NY 180; Lindsay v Wyman, 372 F Supp 1360, affd sub nom. Beame v Lavine, 419 US 806; Matter of Toia v Regan, 54 AD2d 46, 40 NY2d 837.) II. Respondents lack standing to maintain this action. (Boryszewski v Brydges, 37 NY2d 361; Matter of Toia v Regan, 54 AD2d 46, 40 NY2d 836; Town of Black Brook v State of New York, 41 NY2d 486; Matter of Jeter v Ellenville Cent. School Dist., 41 NY2d 283; Abrams v New York City Tr. Auth., 39 NY2d 990; Vanilla v Moran, 188 Misc 325, 272 App Div 859, 298 NY 796; Glassman v Glassman, 309 NY 436; Stoner v Miller, 377 F Supp 177.) III. The applicable law and State policies have so drastically changed since the commencement of suit that the action is moot and should be dismissed.

      Joel M. Lutwin, Corporation Counsel (Gail A. Shields of counsel), for respondents in the second above-entitled action.
    I. The City of Long Beach is entitled to a declaratory judgment establishing the obligations which the State owes to released mental patients and the City of Long Beach. (Rockland Light & Power Co. v City of New York, 289 NY 45; Lynch v Bailey, 304 NY 669; Town of Ohio v People, 264 App Div 220; Glassman v Glassman, 309 NY 436; City of Rome v State of New York, 25 AD2d 486; Lake v Cameron, 364 F2d 657; Dixon v Weinberger, 405 F Supp 974; Woe v Mathews, 408 F Supp 419; Schieffelin v Komfort, 212 NY 520; Matter of Taylor v Sise, 33 NY2d 357.) II. The State of New York has an obligation to provide treatment for released mental patients. They must provide a comprehensive State-wide plan and treatment which considers the consequences to the communities and which provides these communities with a voice in the establishment and operation of aftercare facilities, based not only upon mental hygiene laws but also the home rule provision of the New York State Constitution. (Boryszewski v Brydges, 37 NY2d 361; Lake v Cameron, 364 F2d 657; Covington v Harris, 419 F2d 617; Dixon v Weinberger, 405 F Supp 974; Matter of Toia v Regan, 40 NY2d 837; Floyd v New York State Urban Dev. Corp., 33 NY2d 1.)
   OPINION OF THE COURT

Chief Judge Breitel.

These two appeals share a common quality: in each the plaintiffs would embroil the courts in the administration of programs the primary responsibility for which lies in the executive branch of government. In each the courts are obliged to decline the invitation. Accepting the responsibility would violate the constitutional scheme for the distribution of powers among the three branches of government and involve the judicial branch in responsibilities it is ill-equipped to assume.

In the Jones appeal plaintiffs are private persons and organizations concerned with the inadequate, and therefore cruel, treatment of animals, as a result of fiscal crisis, in municipal zoos in the City of New York in violation of applicable statutes. They seek declaratory and injunctive relief against the municipal officials charged with ultimate responsibility for operation of the zoos. As the appeal reaches this court, all of the causes of action in the amended complaint have been dismissed on motion either for legal insufficiency or lack of standing (see CPLR 3211, subd [a]).

In the Bowen appeal plaintiffs, the City of Long Beach and its city manager, are concerned with the premature placement in private homes and hotels of mental patients discharged into the community in violation of applicable law. They seek declaratory and injunctive relief against the State departments charged with responsibility for the care and treatment of the mentally ill on the assertions that the patients, while still mentally ill, were discharged into the community in excessive numbers and without adequate supervision. As the appeal reaches this court, the complaint has been sustained on motion as legally sufficient (see CPLR 3211, subd [a]).

In the Jones appeal the amended complaint should stand dismissed, and in the Bowen appeal the order should be reversed and the complaint dismissed. In both cases the allegations of fact are accepted as true. Indeed, many of the disturbing and even dreadful conditions to which they refer are matters of common knowledge. Nevertheless, as this court pointed out so recently in Matter of Abrams v New York City Tr. Auth. (39 NY2d 990, 992), plaintiffs, however sincerely motivated, may not interpose themselves and the courts into "the management and operation of public enterprises”. Involved are, as in the Abrams case, "questions of judgment, discretion, allocation of resources and priorities inappropriate for resolution in the judicial arena”, the responsibility for which is "lodged in a network of executive officials, administrative agencies and local legislative bodies.” The court spoke again to the same effect in James v Board of Educ. (42 NY2d 357, 368). (See, also, Matter of Community Action Against Lead Poisoning v Lyons, 43 AD2d 201, 202-203, affd on opn below 36 NY2d 686.)

In the Jones case, involving the zoos, the City of New York, in prolonged fiscal crisis, threatened with bankruptcy, dependent on State and Federal fiscal assistance, and constrained by close regulation, has curtailed services and personnel in efforts to achieve a balanced budget. Its choices have been hard and the measures taken often Draconian, not only at the expense of its animal charges but also of its children in the schools, its poor, its highways and transportation, its courts, jails, hospitals, museums, libraries, police and fire services, and indeed of its whole range of municipal services. Obviously, it is untenable that the judicial process, at the instance of particular persons and groups affected by or concerned with the inevitable consequences of the city’s fiscal condition, should intervene and reorder priorities, allocate the limited resources available, and in effect direct how the vast municipal enterprise should conduct its affairs.

In the Bowen case, involving the "dumping” on communities of mentally ill patients, the complexities relate not to fiscal measures alone, but to theories and programs for deinstitutionalizing, for the sake of the patients, the inmates of the crowded and evermore crowding mental hospitals. In the State too there are fiscal problems, although not as grave as those affecting the City of New York. The State’s fiscal problem is not necessarily solvable by increased taxation because of the fear that it would accelerate the removal of taxpayers and enterprise from the State. Thus, there may be no easy answer in allocating the State’s tax-created resources to assist the fiscally troubled City of Long Beach in handling the problems created by the influx of mental patients. Even more intractable are the conflicting views as to the better therapy for mental patients, that is, whether to treat them in institutions or in private settings in the community.

Hence, inescapably, in both cases there are questions of broad legislative and administrative policy beyond the scope of judicial correction. Not only is the situs of responsibility elsewhere, but the judicial process is not designed or intended to assume the management and operation of the executive enterprise.

These principles are not new. Seventy-five years ago Mr. Justice William S. Andrews, later a distinguished Judge of this court, stated in a somewhat different but parallel context:

"The interference of the Supreme Court with the details of municipal administration is not to be encouraged. These details are intrusted by the people to officers chosen directly or indirectly by themselves. These officers are criminally responsible for a willful neglect of their duties, and upon them the responsibility for the government of our cities should usually be allowed to rest.

"The Supreme Court is not so organized as to enable it-conveniently to assume a general supervisory power over their acts; and indeed such an assumption by it would be contrary to the whole spirit and intent of our government” (People ex rel. Clapp v Listman, 40 Misc 372, 375-376, affd on opn below 84 App Div 633).

The problem of judicially manageable questions is usually described as one of justiciability, not just one of standing. Although much has been written on justiciability, its meaning and application remain uncertain (see Flast v Cohen, 392 US 83, 95; see, also, Borchard, Declaratory Judgments [2d ed], pp 33-40). For example, considered as nonjusticiable, that is, inappropriate or sometimes even improper for judicial inquiry or adjudication, have been political questions, issues that have become moot, and challenges in which only an advisory opinion is sought (see, e.g., Flast v Cohen, 392 US 83, 95, supra). Even within a particular category of justiciability, as with political questions, the line separating the justiciable from the nonjusticiable has been subtle, and with the passage of time, it might be said, has even moved (see, e.g., Baker v Carr, 369 US 186, 208-237).

There is one recurrent theme: the court as a policy matter, even apart from principles of subject matter jurisdiction, will 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. As put by the then Chief Judge Wyzanski, speaking with respect to a political question, abstention was "a recognition that the tools with which a court can work, the data which it can fairly appraise, [and] the conclusions which it can reach as a basis for entering judgments, have limits” (United States v Sisson, 294 F Supp 511, 515).

In the instant cases much effort was expended in detailing the concern of the plaintiffs with the issues presented, avowedly to. demonstrate that if anyone has standing to litigate these issues, plaintiffs do. In this, plaintiffs are probably correct. The difficulty is not, however, whether plaintiffs are the wrong ones to present and litigate the issues; the point is that the courts are the wrong forum for resolution of the disputes. The proper forums are the Legislature and the elected officials of State and local government. It is there that the accommodations can be made in determining priorities and allocating resources.

In short, resolution of the ultimate issues rests on policy, and reference to violations of applicable statutes is irrelevant except in recognized separately litigable matters brought to enforce them. Mr. Justice Andrews, in People ex rel. Clapp v Listman (40 Misc 372, supra) made the point graphically. One may initiate a criminal complaint against a malefactor for a particular act, or administratively charge a police officer for failing to do his duty to arrest and charge, but rarely, if ever, should mandamus lie to command the Commissioner of Public Safety to enforce the Sunday "blue” laws or the ordinance forbidding the riding of bicycles on the sidewalk (id., at pp 374-376).

Accordingly, in the Jones appeal the order should be affirmed, without costs, and in the Bowen appeal the order should be reversed, without costs, and the motion to dismiss the complaint granted.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

In Jones v Beame: Order affirmed, without costs.

In Bowen v State Bd. of Social Welfare: Order reversed, without costs, and the motion to dismiss the complaint granted. Question certified answered in the negative.

       See the Laws of 1978 (ch 468, generally eff Sept. 1, 1978) which adds a new section to the Mental Hygiene Law. The statute not only promotes the establishment of community residences for the mentally ill, but also insures formal participation by the community in selection of a site so as "to best protect the interests of the mentally disabled” and "to avoid, wherever practicable, a disproportionate distribution of community residences” (declaration of legislative findings and intent).


author: Wachtler, J. Chief Judge Breitel

text:
    In the Matter of Port Washington Union Free School District, Appellant, v Port Washington Teachers Association, Respondent. Port Washington Union Free School District, Respondent, v Port Washington Teachers Association, Appellant.
    Argued June 7, 1978;
    decided July 13, 1978

      POINTS OF COUNSEL

      Jerome H. Ehrlich for appellant in the first above-entitled case.
    I. The court below misapprehended the issues. (Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Matter of National Cash Register Co. [Wilson], 8 NY2d 377; Matter of Maye [Bluestein], 40 NY2d 113.) II. Imperative provisions of law warrant affirmance of Special Term’s order staying arbitration. (Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122; Syracuse Teachers Assn, v Board of Educ., 35 NY2d 743; Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614; Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Herman v Board of Educ., 234 NY 196; Matter of Legislative Conference of City Univ. of N. Y. v Board of Higher Educ., 31 NY2d 926; Matter of New York City Schools Bds. Assn, v Board of Educ., 50 AD2d 826, 39 NY2d 111; Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 269.) III. The collective bargaining agreement between the district and the teachers could not have delegated the board’s power over educational affairs. IV. The arbitration should be stayed because the performance sought would be in violation of the contract. (Matter of Macy & Co. [National Sleep Prods.], 39 NY2d 268; Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284.)

      David N. Stein and James R. Sandner for respondent in the first above-entitled case.
    I. There is no statutory or decisional law or other public policy which would bar the instant arbitration. (Steelworkers v American Mfg. Co., 363 US 564; Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122; Syracuse Teachers Assn. v Board of Educ., 35 NY2d 743; Matter of Port Washington Union Free School Dist. v New York State Public Employment Relations Bd., 52 AD2d 927.) II. The parties have agreed to submit this controversy to arbitration. (Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167.)

      David N. Stein and James R. Sandner for appellant in the second above-entitled case.
    I. As-found by the court below the grievance and arbitration clause of the subject collective bargaining agreement is broad. (Board of Educ. v Cracovia, 36 AD2d 851; Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268; Board of Educ. v Lakeland Federation of Teachers, Local 1760, Amer. Federation of Teachers, AFL-CIO, 42 NY2d 853; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578.) II. A broad arbitration clause, such as the one at bar, creates a presumption of arbitrability. (Steelworkers v Warrior & Gulf Co., 363 US 574; Steelworkers v Enterprise Corp., 363 US 593; Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122; Matter of Associated Teachers of Huntington v Board of Educ., 33 NY2d 229; Communications Workers of Amer. AFL-CIO v New York Tel. Co., 327 F2d 94; Strauss v Silvercup Bakers, 353 F2d 555; District 50, United Mineworkers of Amer. v Chris-Craft Corp., 385 F2d 946.) III. The subject clauses of the collective bargaining agreement are not illegal and unenforceable, and therefore this arbitration is not barred by public policy. (Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Matter of Legislative Conference of City Univ. of City of N. Y. v Board of Higher Educ., 31 NY2d 926; Matter of Board of Educ. v Levittown United Teachers, 53 AD2d 902, 42 NY2d 904.) IV. The agreement clearly provides that these grievances are arbitrable.

      Charles D. Maurer and Jerome H. Ehrlich for respondent in the second above-entitled case.
    I. Arbitration of the grievances herein is not authorized by the terms of the Taylor Law.
      (Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Board of Educ. v Areman, 41 NY2d 527; Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137; Honeoye Falls-Lima Cent. School Dist. v Honeoye Falls-Lima Educ. Assn., 59 AD2d 1042; Matter of Downey, 72 Misc 2d 772; Herman v Board of Educ., 234 NY 196; Matter of Legislative Conference of City Univ. of N. Y. v Board of Higher Educ., 31 NY2d 926.) II. The district did not agree to arbitrate the issues raised by the grievances. (Honeoye Falls-Lima Cent. School Dist. v Honeoye Falls-Lima Educ. Assn., 59 AD2d 1042; Board of Educ. v Lakeland Federation of Teachers, 42 NY2d 853; Lehman v Dobbs Ferry Bd. of Educ., 66 Misc 2d 996; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578; Matter of Civil Serv. Employees Assn. v County of Steuben, 50 AD2d 421; County of Ontario v Civil Serv. Employees Assn., Ontario County Ch., 76 Misc 2d 365, 46 AD2d 738; Matter of Howard & Co. v Daley, 27 NY2d 285; South Colonie Cent. School Dist. v Longo, 43 NY2d 136.) III. The collective bargaining agreement between the district and the teachers could not have delegated the board’s power over educational affairs. IV. The orders staying arbitration should be affirmed because the performance sought would be in violation of the contract. (Matter of Macy & Co. [National Sleep Prods.], 39 NY2d 268; Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284.)
   OPINION OF THE COURT

Wachtler, J.

In both cases consolidated on this appeal the teachers associations demanded arbitration of related grievances covered by specific provisions of its collective bargaining agreement with the school district. Although an arbitrator would concededly be empowered to interpret those provisions of the contract, the school district commenced these proceedings to stay arbitration on the ground that the relief sought by the association, if granted by the arbitrator, would be against public policy. Because a stay in either case would foreclose any remedy for alleged violations of procedural guarantees as well as substantive rights said to be afforded under the contract, the appeal itself raises policy questions of importance to the arbitration process.

In 1973 the parties entered into a collective bargaining agreement covering a five-year period. Article II A of the agreement sets up a number of joint committees, comprised of administrative and association representatives, to consider and make recommendations on various subjects including evaluations for advanced status, extra assignments and curriculum development. The article states that "a recommendation of any joint committee * * * shall be advisory * * * and may be accepted or rejected, in whole or in part, by the Superintendent.”

The agreement further provides for a resolution of grievances including: "a complaint by an instructional employee that (1) there has been as to him a violation, misinterpretation or inequitable application of any of the provisions of this Agreement.”

The final step in the grievance procedure provides for submission to arbitration: "A grievance dispute which was not resolved at Step 2 under the grievance procedure may be submitted by the aggrieved party to an arbitrator for a binding ruling if it involves the application or interpretation of this Agreement. The arbitrator shall have the power only to interpret what the parties to the Agreement intended by the specific clause in the Agreement which is at issue.” The committee system apparently broke down on a number of occasions.

In the first case the school district implemented an educational program without first submitting it to the committee. In addition the district instructed its representatives on the committee not to participate in any discussion or vote with respect to the educational program. The teachers association filed a grievance claiming that this conduct on the part of the school district violated the terms of the agreement by not following the contractually prescribed procedures. They claimed that the agreement required the district to submit any change of this nature to the committee and also required the district representatives to participate in discussion and deliberation concerning the new educational program before its implementation.

The teachers ultimately sought arbitration and demanded that the district: "Cease and desist from the implementation of programs that have not been approved in the [sic] accordance with procedures set forth in Article II, a. that the District direct its administrators who are Committee members, to participate in the deliberations and voting of the Professional Growth & Curriculum Committee.”

The district commenced this proceeding to stay arbitration claiming that the relief demanded would, if granted, deprive the school district of its control over the curriculum and thereby violate public policy.

The Appellate Division held that contrary to the district’s position, a permanent stay of arbitration would not be warranted by the mere possibility that the demand’s additional request for termination of "unapproved” programs, if granted following arbitration of the dispute, might be subject to vacatur under CPLR 7511 on the ground that the arbitrator exceeded his power.

In the second case the school district successfully sought to stay arbitration of related grievances involving similar unilateral actions by the superintendent, here his reduction of certain extracurricular activities and assignments purportedly for economic reasons. But in this case the demand for relief went further, in essence requesting annulment of the contested unilateral action, plus restoration of the eliminated activities and back pay for teachers affected by the cutbacks. The majority below granted a stay on the assumption that the association’s demand could only be granted by either giving the joint committee on extracurricular programs a right of prior approval or by requiring the district to maintain the status quo until a properly constituted joint committee was to arrive at a recommendation for the superintendent’s further consideration. In the Appellate Division’s view this would be an impermissible delegation of supervisory responsibility in either event (see Education Law, § 1709).

Arbitration should be permitted to proceed in both cases. It is conceded in these cases that there is a dispute over the meaning or interpretation of the agreement and that the controversy is therefore arbitrable under the agreement. The school district’s sole contention is that arbitration should be stayed because the relief demanded if granted would violate public policy.

The courts may intervene in a dispute which the parties had agreed to arbitrate where the arbitrators could not grant any relief without violating public policy (Board of Educ. v Areman, 41 NY2d 527); however that power to intervene is restricted. In the present context it is generally limited by the principle, that although a school district’s authority under the decisional and Education Law may not be bargained away or otherwise delegated, "[f|or purposes of our review, the violations of the procedural and substantive aspects of the [contested contract provisions] must be treated discretely” (Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266, 271; see, also, Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778). For example while we have held that a board of education may not surrender its ultimate responsibility for making tenure decisions or restrict its exclusive right to terminate probationary appointments at the close of the probationary period, on the other hand "the bargained-for right to supplemental procedural steps preliminary to the board’s final action to grant or to withhold tenure is not to be rendered a nullity because of the board’s right to deny tenure without explanation” (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., supra, p 778).

In applying this concept to other claims of improper delegation first raised in judicial proceedings to stay arbitration of otherwise arbitrable disputes, it becomes necessary to consider the fact that labor arbitrators, even in the public sector, are "not strictly limited to remedies requested by the parties” (Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167, 172); on the contrary, arbitrators in this context are in the final analysis empowered to "do justice and the award may well reflect the spirit rather than the letter of the agreement” (Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 582; Lentine v Fundaro, 29 NY2d 382, 386).

For these reasons in both cases at bar, even though the full scope of relief in precisely the form demanded by the teachers association might, if granted in toto by the arbitrator, ultimately lead to an award which would be subject to vacatur this consideration does not, standing alone, justify judicial interference with the arbitration process at this stage. The arbitrator’s broad power to fashion appropriate relief may therefore not be presumed in advance to necessarily entail public policy conflicts discernable in the abstract by the courts. It follows that where the relief sought is broader than any enforceable remedy that may prospectively be granted but may also be adequately narrowed to encompass only procedural guarantees, as in these cases, a stay of arbitration on policy grounds is premature and unjustified.

The arbitration demands at issue here cannot be said to lead inexorably to the delegation problems urged by the school district. Far from interfering with matters of educational policy, appropriate enforcement of the advisory procedures to which the school district committed itself in both of the cases now before us may well signal instead the advancement of these goals and at the very least the resolution of pending controversies in the forum agreed upon by the parties. Should the arbitrator’s exercise of remedial discretion end in perceived policy conflicts, review by the courts will not have to rest on speculation or assumption.

Accordingly, the order of the Appellate Division in the first case captioned on this appeal should be affirmed and in the second reversed, without costs, and the motion for a permanent stay of arbitration denied.

Chief Judge Breitel

(concurring). I concur for different reasons.

The issue on these appeals is whether the demands for arbitration raise public policy questions of such dimension that only the courts, and not arbitrators, may be permitted to resolve them. Since it is concluded that the public policy questions raised are not of such magnitude, arbitration should proceed in both cases, and stays should be denied. Hence, there should be an affirmance in the first case and a reversal in the second.

Involved in each case is the arbitration provision in the identical collective bargaining agreement between the school district and the teachers association. A grievance is defined as: "a complaint by an instructional employee that (1) there has been as to him a violation, misinterpretation or inequitable application of any of the provisions of this Agreement or (2) that he has been treated unfairly or inequitably by reason of any act or condition which is contrary to established Board policy or is contrary to established practice governing or affecting employees, except that the term 'grievance’ shall not apply to any matter as to which (1) a method of review is prescribed by law, or by any rule or regulation of the State Commissioner of Education having the force and effect of law, or (2) the Board of Education is without authority to act.” As the third step of its grievance procedure, the agreement provides: "A grievance dispute which was not resolved at Step 2 under the grievance procedure may be submitted by the aggrieved party to an arbitrator for a binding ruling if it involves the application or interpretation of this Agreement. The arbitrator shall have the power only to interpret what the parties to the Agreement intended by the specific clause in the Agreement which is at issue.” Emphatically, the agreement does not include a broad arbitration clause. That term, a term of art, applies most often in the commercial context, and broad clauses are much less commonly found in collective bargaining agreements (compare the clause above with the one involved in Matter of Exercycle Corp. [Maratta], 9 NY2d 329, 332-333).

In each case, the teachers association seeks arbitration of a grievance with the district.

In the first case, the dispute is over application of a provision in the agreement establishing a joint committee, with members drawn from both administration and faculty, to "serve as a clearing house for ideas and suggestions for curriculum changes” and "to recommend to the Superintendent modifications of present educational programs”. Recommendations of the committee, as with all joint committees under the collective bargaining agreement, were to be "advisory” only, and could be accepted or rejected by the superintendent of schools.

In late 1974, the board of education directed the superintendent to implement a new educational program significantly affecting the curriculum in the high school. A teacher member of the joint committee brought the matter before the committee, but the administration members believed the matter inappropriate for the committee’s consideration. The teacher members formulated their own recommendation to the superintendent, but the administration members refused to vote on it, contending that, since the recommendation was not jointly developed, it was not appropriate for submission to the superintendent. The new program was implemented on February 1, 1975, and the teachers association filed a grievance. The subsequent demand for arbitration seeks tp have the district "cease and desist from the implementation” of programs not "approved” by the committee, and to have the district direct the administration members to participate in the committee’s deliberations and voting.

The grievances in the second case involve the district’s elimination of existing extracurricular programs and replacement with other programs without submitting the changes to the joint committee on extra assignments for its approval. This committee, too, is only advisory by the terms of the collective bargaining agreement. The association’s three separate demands for arbitration request restoration of the old programs and cancellation of the new, with payment of lost compensation to teachers adversely affected by the changes in programs.

Supreme Court, in four separate orders issued by three different Judges, stayed arbitration of all the demands in the two cases. The same Appellate Division, with different panels, reversed in the first case and directed the parties to proceed to arbitration, but affirmed in the second case.

Quickly rejected should be the contention that the grievances asserted do not fall within the terms of the arbitration clause. It matters not in these cases that the arbitration clause is not a broad clause, for the submitted grievances, without question, involve "the application or interpretation of this Agreement.” Thus, the principal question is one of public policy.

It is settled law that arbitrators will not be permitted to decide disputes involving strong public policy in violation of law, however derived. But the public policy involved must, indeed, be substantial, for otherwise the freedom to resort to voluntary arbitration as an alternative forum for the resolution of disputes would be thwarted by endless attempts to invoke one purported public policy or another. Thus, even in governmental matters, including public schools, where public concern may be greatest, only rarely may public policy be invoked to stay arbitration (see Matter of Susquehanna Val. Cent. School Dist. [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614, 616-617). In some sense, of course, almost every issue in public or private arbitration will involve some degree of "public policy”, however minimal.

It is not only in governmental matters that a strong public policy will limit the scope of arbitration, however broad the arbitration clause. Thus, for example, contract questions involving substantial issues of antitrust law, regulated directly by statute, may be resolved only by courts, not by arbitrators (Matter of Allied Van Lines Corp. [Hollander Express & Van Co.], 29 NY2d 35, 41-43; Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621, 626-630). Similarly, for another example, the issue of usury in lending agreements will not be permitted to go to arbitration (Durst v Abrash, 22 AD2d 39, 40-43, affd 17 NY2d 445). And, in custody matters, courts will review the actions of arbitrators notwithstanding an agreement between the parents to settle the custody matter by arbitration (see Schneider v Schneider, 17 NY2d 123, 127-128; compare Sheets v Sheets, 22 AD2d 176, 178, with Nestel v Nestel, 38 AD2d 942, 943; see, also, Hirsch v Hirsch, 37 NY2d 312, 315-316). This is so because no device will be enforced if it will offer the opportunity to frustrate explicit prohibitions of illegal or gravely immoral conduct, or displace nondelegable judicial authority.

Arbitration, despite or because of its many merits, provides a framework for dispute resolution far different from the traditional litigation framework. Arbitrators are permitted to apply their own "law or equity”. They are not restricted by legal rules of evidence. Perhaps most important, an arbitration award may not be vacated for errors of law or fact made by the arbitrators. (Matter of Associated Teachers of Huntington v Board of Educ., 33 NY2d 229, 235; Matter of Raisler Corp. [New York City Housing Auth.], 32 NY2d 274, 282-283; Lentine v Fundaro, 29 NY2d 382, 385-386.) This is so even if the award indicates that the arbitrators ignored or misapplied accepted rules of law (see Matter of Schine Enterprises [Real Estate Portfolio of N. Y.], 26 NY2d 799, 801). Thus, it must be with caution that a demand for arbitration should be approached to assure that, by use of arbitration, no strong public policy will be frustrated.

Not every issue asserted to be one of public policy, however, requires that arbitration be stayed. The public policy must be a strong one, amounting to gross illegality or its equivalent. Unless the illegality or other strong public policy has a readily identifiable source in the statutes or common-law principles, it is unlikely to be the kind of public policy that will result in a stay of arbitration (cf. Matter of Susquehanna Val. Cent. School Dist. [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614, 616-617, supra; Syracuse Teachers Assn. v Board of Educ., 35 NY2d 743; Board of Educ. v Associated Teachers of Huntington, 30 NY2d 122, 129-130). Not to be confused with these grave matters, unsuitable and impermissible for resolution by arbitration, are the far more numerous matters in which the public may take a general interest and be affected. Arbitrability of disputes in this broader range of matters is not forbidden by strong public policy.

Any dispute involving a public enterprise involves issues of some public interest and concern. But it should be obvious that most of these issues do not involve strong public policies that would or should prevent arbitration. Instead, for the issue to be nonarbitrable, it must generally involve some statutory or constitutional duty or responsibility so important that the public agency will not be permitted to delegate it (see Board of Educ. v Areman, 41 NY2d 527, 532-533). Thus, the awarding of tenure to public school teachers is not arbitrable (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 776-777). To repeat, this is not because teacher tenure is a matter of public interest, but because the statutes provide that tenure decisions are to be made by the educational authorities (Education Law, §§ 2509, 2573, 3012, 3013).

Because - of the broad powers of the arbitrators once a demand proceeds to arbitration, a demand, if attacked on public policy grounds, must be evaluated before it is permitted to go to arbitration. If the demand presents only issues beyond the scope of arbitration, whether for reasons of strong public policy or otherwise, it is subject to a stay of arbitration under CPLR 7503. And, as noted later, where a strong policy affects an arbitration award even that award will be subject to judicial oversight.

Difficulties arise, however, when the demand for arbitration combines arbitrable issues with those that are beyond the scope of arbitration. When the issues are severable, of course, arbitration may be stayed with respect to some issues while it proceeds as to others (see Matter of Allied Van Lines Corp. [Hollander Express & Van Co.], 29 NY2d 35, 41-44, supra). In this manner, the parties’ agreement to arbitrate may be preserved to the extent consistent with public policy.

When issues of strong public policy are inextricably intertwined with the other issues raised by the demand, solution is difficult. To be sure, censoring the issues the arbitrators may consider is not favored (see, e.g., Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669, 677; Matter of Transpacific Transp. Corp. [Sirena Shipping Co.], 9 AD2d 316, 320, affd 8 NY2d 1048; Matter of Spectrum Fabrics Corp. [Main St. Fashions], 285 App Div 710, 714, affd 309 NY 709). Nevertheless, as discussed earlier, the courts will undertake the difficult task when required by strong public policy, however derived (see Durst v Abrash, 22 AD2d 39, 40-43, affd 17 NY2d 445, supra; Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621, supra).

It is not generally permissible when issues of strong public policy are involved to allow the demand to proceed to arbitration subject to subsequent review by the courts on application to vacate the award (CPLR 7511). As noted earlier, the arbitrators have broad powers to apply their own substantive and procedural rules during the arbitration. Once the demand has gone to the arbitrators, the courts may not examine the deliberative processes that led to the award. Thus, unless the award on its face demonstrates that the arbitrators have exceeded their powers, a court may not, on motion to vacate an award, be able to ascertain whether strong public policy issues were considered and decided by the arbitrators. (See Matter of Aimcee Wholesale Corp. [Tomar Prods.], 21 NY2d 621, 626-627, supra.) To assure that issues of illegality and similar strong public policy remain outside the purview of arbitration, consideration of those issues on motion to stay arbitration is' appropriate.

Of course, when the only issue of strong public policy or illegality is the arbitrators’ power to grant a particular remedy, a stay of arbitration is not necessary. While arbitrators may not grant tenure to teachers, a dispute over tenure may nevertheless proceed to arbitration for resolution of arbitrable issues, subject to vacatur only if the arbitrators exceed their power by awarding tenure to the aggrieved teacher (Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266, 271-272; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778, supra; see, also, Garrity v Lyle Stuart, Inc., 40 NY2d 354, vacating an award of punitive damages- because of absence of power in the arbitrator to provide such a remedy).

Turning to the cases at bar, it should be evident that the public policy questions raised by the school district do not raise issues of illegality or similar strong public policy requiring stay of arbitration.

The school district contends that its statutory duty ”[t]o have in all respects the superintendence, management and control of the educational affairs of the district” prevents the board from delegating to the joint committees a right of approval of the changes in programs (Education Law, § 1709, subd 33). But the statutory provision does not foreclose the district from concluding, as a matter of educational policy, that curricular and extracurricular changes should be made only with the advice or approval of the teachers for the limited term of the collective bargaining agreement. Whether wise or not, such a policy decision does not contravene the statute, nor does it violate any other strong public policy, however derived (cf. Matter of Susquehanna Val. Cent. School Dist. [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614, 616-617, supra). Undoubtedly, a different question, and perhaps a different result, would be presented if the school board would attempt by collective bargaining agreement or otherwise to restrict the freedom of school superintendence for a protracted period beyond its term of office (cf. Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268, 275).

Moreover, it is not for the court to decide whether the school district did, in fact, delegate rights of approval to the joint faculty-administration committees. It is for the arbitrators to interpret the language of the collective bargaining agreement.

It is interesting and significant that in its briefing on these appeals the teachers associations never contended that the joint committee’s recommendations would be more than advisory. However, "advisory” and other words in dispute, although they might be interpreted otherwise by the court, may be interpreted by the arbitrators as they see fit, but hopefully with integrity and respectful of the language of the agreement directed to them in making their determinations. Arbitrators may choose to do justice by whatever means they see fit, so long as they do not exceed their powers.

It is also for the arbitrators to decide what remedies, if any, might be appropriate even if the committees were only to be advisory, but were improperly prevented from advising. The arbitrators certainly have the power to fix an appropriate remedy for any violation by the district of procedural provisions of the collective bargaining agreement (Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266, 272, supra).

To recapitulate, issues of strong public policy, usually amounting to illegality, may not be decided by arbitrators. The principle is not, however, of broad application, for many issues in which the public has a significant interest are unquestionably subject to arbitration. Although to justify a stay of arbitration the strong public policy involved need not be drawn from statutory or decisional prohibitions, the policy must emanate from some authoritative source. Generally, oblique reference to unparticularized statutory provisions of management and control does not authorize a stay of arbitration.

Accordingly, I concur in result that the arbitration should proceed in each case.

Judges Gabrielli, Jones, Fuchsberg and Cooke concur with Judge Wachtler; Chief Judge Breitel concurs in result in a separate opinion in which Judge Jasen concurs.

In Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn.: Order affirmed, without costs.

In Port Washington Union Free School Dist. v Port Washington Teachers Assn.: Order reversed, etc.

       Arbitrators are not free to be arbitrary even if, because their awards are not subject to judicial review for errors of law and fact, the courts may not oversee their determinations. It is because of the unreviewability of arbitration awards that agreements with arbitration provisions may restrict the scope of arbitration, or on the contrary, leave the arbitration provision more or less broad, but still by other provisions instruct the arbitrators on the standards they are to follow. In the latter instance, the only sanction is provided by the integrity of the arbitrators. It is notable that the arbitration provisions of the instant collective bargaining agreement instructed: "The arbitrator shall have power only to interpret what the parties to the Agreement intended by the specific clause in the Agreement which is at issue” (p 416).


author: Wachtler, J.

text:
    The People of the State of New York, Appellant, v Shelton Munlin, Respondent.
    Argued June 8, 1978;
    decided July 13, 1978

      POINTS OF COUNSEL

      Denis Dillon, District Attorney (William C. Donnino, Anthony J. Gírese and Marshall Trager of counsel), for appellant.
    Nisi prius properly refused to suppress the physical evidence and the statements of defendant. (People v Middleton, 43 NY2d 703; People v D’Abate, 37 NY2d 922; People v Lypka, 36 NY2d 210; Silverthorne Lbr. Co. v United States, 251 US 385; Nardone v United States, 308 US 338; Somer v United States, 138 F2d 790; People v Fitzpatrick, 32 NY2d 499, 414 US 1050; People v Martinez, 37 NY2d 662.)

      Dwight D. Kraemer for respondent.
    I. There was no probable cause for the arrest of respondent. (People v Hunter, 30 NY2d 774; McCray v Illinois, 386 US 300; People v Rosemond, 26 NY2d 101; People v Brady, 16 NY2d 186; People v La Pene, 40 NY2d 210; People v Martinez, 37 NY2d 662; People v Fitzpatrick, 32 NY2d 499; People v Brown, 32 NY2d 172; People v Beal, 57 AD2d 306.) II. The statements were involuntary, since they were the result of a single, continuous chain of events and questions not preceded by Miranda warnings. (Westover v United States, 384 US 436; People v Chapple, 38 NY2d 112; People v Paulin, 25 NY2d 445.) III. Respondents oral and written statements were obtained in violation of his constitutional rights in the absence of an attorney. (People v Gary, 31 NY2d 68; People v Buxton, 44 NY2d 33; Michigan v Mosley, 423 US 96; People v Dunleavy, 26 AD2d 649; People v Jackson, 22 NY2d 446; People v Noble, 9 NY2d 571; Escobedo v Illinois, 378 US 478; People v Grant, 59 AD2d 661; United States v Anthony, 474 F2d 770.)
   OPINION OF THE COURT

Wachtler, J.

The defendant was arrested for attempted burglary together with Kevin Harvey and Eric Eason. At the time of the arrest the police seized certain evidence from their car and obtained statements from the defendant without advising him of his rights. Later at the station house, after being advised of his rights the defendant stated that he wanted an attorney and that he did not wish to answer any questions about the incident without the assistance of counsel. The questioning was terminated and the defendant was permitted to call his mother. During this conversation the defendant asked his mother to call an attorney.

Soon thereafter, and little more than 30 minutes after the first interrogation, another officer investigating the attempted burglary asked the defendant if he had been advised of, and understood, his rights. When the defendant answered affirmatively the officer proceeded to question him about the crime without the assistance of counsel and before the defendant had spoken with an attorney. The defendant initially denied any criminal involvement. However when the officer confronted the defendant with a statement signed by Harvey, the defendant made incriminating admissions which were later incorporated into a written confession.

The defendant made a pretrial motion to suppress all his statements as well as the physical evidence seized from his car. After a hearing the County Court suppressed the statements made by the defendant at the time of arrest prior to being advised of his rights, but otherwise denied the motion. The defendant then pleaded guilty to criminal facilitation in the second degree.

The Appellate Term reversed,. set aside the plea and suppressed the confession, but otherwise affirmed the order denying the motion to suppress.

The People have appealed to this court claiming that the confession is admissible and that the conviction should therefore be reinstated. They urge that there is no per se rule prohibiting the police from renewing the interrogation once the defendant has requested counsel and that, under the totality of the circumstances in this case, the defendant’s subsequent decision to speak with the police, in the absence of counsel, was voluntarily and intelligently made.

The principles applicable to this appeal are discussed in People v Grant (45 NY2d 366), decided herewith). Here it is sufficient to emphasize that although the police advised the defendant of his rights, Miranda imposes additional obligations upon them when the defendant chooses to assert his rights. Unless these additional obligations are also satisfied the confession will not be admissible even though it might otherwise be said to be voluntary in traditional terms. As in Grant, however, there is no need in this case to determine whether Miranda establishes a per se rule prohibiting the police from renewing the interrogation in the absence of counsel once the defendant has requested an attorney. Even if Miranda does not absolutely preclude the police from renewing the questioning at an earlier point, they must at least scrupulously honor the defendant’s request for counsel before continuing the interrogation and that was not done in this case.

Here the police briefly complied with the defendant’s request for counsel by terminating the interrogation and permitting him to attempt to obtain a lawyer. But almost immediately after that they proceeded to question him again about the same criminal offense, before he had an opportunity to consult with counsel and without readvising him of his rights (see, e.g., People v Jackson, 41 NY2d 146). Indeed when the defendant still proved reluctant to make incriminating statements concerning the incident the interrogating officer immediately confronted him with Harvey’s statement which could only have served to make the defendant change his mind and respond to the questioning without an attorney’s advice or assistance as, of course, he did (see, e.g., People v Grant, 45 NY2d 366, supra; People v Jackson, supra; cf. People v Buxton, 44 NY2d 33).

This type of conduct cannot be said to be consistent with the obligation of the police to scrupulously honor the defendant’s request for counsel and his refusal to answer questions about the attempted burglary without an attorney’s assistance.

Since we have concluded that the Appellate Term’s order of reversal should be affirmed there is no need to consider the additional arguments made by the defendant as respondent on this appeal (see CPL 470.35, subd 2, par [b]).

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

Chief Judge Breitel and Judges Gabrielli, Jones, Fuchs-berg and Cooke concur with Judge Wachtler; Judge Jasen concurs in result only.

Order affirmed.


text:
    The People of the State of New York, Respondent, v Franklin Clark, Also Known as Joseph Cahill, Appellant.
    Argued June 9, 1978;
    decided July 13, 1978

      POINTS OF COUNSEL

      Howard B. Comet, Matthew Muraskin and Michael J. Obus for appellant.
    I. It was error to deny appellant’s motion to suppress his oral statements. (Miranda v Arizona, 384 US 436; Michigan v Mosley, 423 US 96; United States v Kinsman, 540 F2d 1017; United States v Jakakas, 423 F Supp 564; Michigan v Tucker, 417 US 433; People v Jackson, 41 NY2d 146; People v Hobson, 39 NY2d 479; People v Jackson, 22 NY2d 446; People v Taylor, 27 NY2d 327; People v Hetherington, 27 NY2d 242.) II. It was error to deny appellant’s motion to suppress the car that was seized at the time of his arrest for attempted burglary since the car was not relevant to the burglary prosecution and there was no other basis for seizure. (Michalowski v Ey, 4 NY2d 277; United States v Portillo-Reyes, 529 F2d 844, 429 US 899; People v Borrero, 26 NY2d 430; Cady v Dombrowski, 413 US 433; Chambers v Maroney, 399 US 42; Preston v United States, 376 US 364; South Dakota v Opperman, 428 US 364; People v Spinelli, 35 NY2d 77; Coolidge v New Hampshire, 403 US 443; United States v Ortiz, 422 US 891.) III. Appellant’s guilty plea under Indictment No. 41738 was invalid. (People v Davis, 54 AD2d 913; People v Serrano, 15 NY2d 304; North Carolina v Alford, 400 US 25; People v Stone, 54 AD2d 918; People v Nixon, 21 NY2d 338; cert den sub nom. Robinson v New York, 393 US 1067; People v Seaton, 19 NY2d 404; People v Gina M. M., 40 NY2d 595; People v Friedman, 39 NY2d 463; United States ex rel. Dunn v Casscles, 494 F2d 397.)

      Denis Dillon, District Attorney (William C. Donnino and
      Anthony J. Gírese of counsel), for respondent.
    I. Nisi prius correctly denied suppression of the physical evidence siezed per Indictment No. 42124. (Carroll v United States, 267 US 132; People v Fitzpatrick, 32 NY2d 499, 414 US 1050; People v Kreichman, 37 NY2d 693; People v Singleteary, 35 NY2d 528; People v Brosnan, 32 NY2d 254; People v Brown, 28 NY2d 282; People v Lewis, 26 NY2d 547; People v Cassone, 14 NY2d 689; People v Clements, 37 NY2d 675.) II. Under the totality of the circumstances, Clark intelligently and voluntarily waived his pre-interrogation rights per Indictment No. 4124. (Michigan v Mosley, 423 US 96; United States v Grant, 549 F2d 942; Cobbs v Robinson, 528 F2d 1331, 424 US 947; Biddy v Diamond, 516 F2d 118, 425 US 950; United States v Cavallino, 498 F2d 1200; United States v Hodge, 487 F2d 945; Tanner v Vincent, 541 F2d 932, 429 US 1065; Clewis v Texas, 386 US 707; People v Gary, 31 NY2d 68; People v Jackson, 41 NY2d 146.) III. Defendant’s guilty plea per Indictment No. 41738 is unassailable. (People v Castro, 37 NY2d 818; People v Clairborne, 29 NY2d 950; People v Francis, 38 NY2d 150; People v Wachowicz, 22 NY2d 369; Parker v North Carolina, 397 US 790; Brady v United States, 397 US 742; People v Montgomery, 27 NY2d 601; People v Fink, 29 NY2d 443; People v White, 32 NY2d 393; People v Lowrance, 41 NY2d 303.)
   OPINION OF THE COURT

Wachtler, J.

In 1975 two indictments were filed against the defendant in Nassau County. In the first indictment he was charged with burglary in the third degree and related offenses allegedly committed in Farmingdale in November, 1974. The second indictment charged him with criminal possession of stolen property, unauthorized use of a vehicle, attempted burglary in the third degree and related offenses allegedly committed in Roslyn Heights in December, 1974.

On the latter indictment the defendant made a pretrial motion to suppress. Specifically he sought to suppress a car and items found in the car after he had been caught in the act of attempting to burglarize a store at a Roslyn Heights shopping center. He also sought to suppress statements subsequently obtained by the police at the station house, in the absence of counsel, after he had refused to answer questions without an attorney’s assistance.

After a hearing the motion to suppress was denied. The defendant then pleaded guilty to the highest count of each indictment (burglary in the third degree and criminal possession of stolen property in the first degree) in full satisfaction of both indictments. At the time of plea the court stated that the defendant could withdraw his plea if the court was unable to keep a negotiated sentencing promise of three to six years on each count with the sentences to run concurrently. The defendant was later sentenced in accordance with the commitment. The Appellate Division affirmed, without opinion.

On this appeal the defendant claims that the motion to suppress should have been granted and that the plea covering both indictments should therefore be set aside.

At 12.45 a.m. on December 31, 1974 Police Officer Mangiaracina drove into the front of a shopping center in Roslyn Heights and noticed a white 1974 Plymouth with rental plates. The vehicle was parked behind the shopping center’s maintenance truck in a manner which made it invisible from the roadway. Having noted that this vehicle was the only one in the parking lot not belonging to one of the shopping center stores, and the odd place in which it was parked, Officer Mangiaracina wrote down the license plate number and drove to the rear of the shopping center.

When he arrived at the rear of the buildings, the officer observed the defendant bending down near the entrance of an A&P store with a lock from the door in his left hand and a tool in his right hand. As soon as he was spotted, the defendant rose and threw away the tool, later identified as a lock-pick. The officer drew his gun, ordered the defendant to freeze, and requested assistance on his police radio. The defendant started moving away from the officer, tossing aside a case which was later found to contain tension bars and other tools used to pick locks. The officer again told the defendant to freeze or he would shoot. The defendant stopped and was immediately frisked.

By this time Officer Cervelli had arrived and assisted in the frisk which revealed a flashlight and a radio tuned to receive police calls. The defendant was told he was under arrest and was given the preinterrogation warnings prescribed in Miranda v Arizona (384 US 436). When he indicated he understood the warning, he was asked whether he was "willing to answer questions before talking with a lawyer or having one present”. The defendant answered "No”. It was then approximately 1 A.M.

The search of the defendant also produced $500 in cash and a set of keys which Officer Mangiaracina identified as being Chrysler Motors keys. The keys where on a chain with a plastic disc which appeared to be the type used by car rental agencies. Recalling the leased Plymouth parked on the other side of the shopping center, Officer Mangiaracina gave the keys to Officer Cervelli to check out the vehicle. This Cervelli did by driving to the Plymouth, parked approximately 1,000 feet from where the arrest took place. He used the defendant’s keys to open the door which was locked.

On the front seat of the car, the officer found an envelope containing six crystals which were later found to fit the defendant’s radio. The officer also found a copy of the automobile registration in the glove compartment. On a radio check it was found that the Plymouth had been stolen from the Hertz Corporation. Cervelli then returned to Mangiaracina and the two officers took the defendant to the police station.

At the station house the defendant was handcuffed to a desk while Officer Mangiaracina completed paperwork on the arrest. When the defendant had been in the police station approximately 10 minutes the detective supervisor, Sergeant Mangan, asked him if he had been advised of and if he understood his rights. The defendant answered affirmatively. At the hearing the court found that when Officer Mangiaracina finished taking the defendant’s pedigree he proceeded to ask the defendant questions about the attempted burglary and the contraband seized. Although approximately an hour earlier the defendant had informed the officer that he did not wish to answer questions about this incident without the assistance of counsel, and the defendant had not yet consulted an attorney, the officer continued to question him in the absence of counsel. The officer explained at the hearing that he felt there was "no harm in trying”. In response to the question the defendant told how much he had paid for the burglar’s tools and that he wanted to get food from the A&P for a New Year’s Eve party. He told of using the police radio to listen for police calls and boasted of making more than $25,000 a year "tax free” from his life of crime.

As noted, the trial court denied the defendant’s motion to suppress both the physical evidence and the oral statement.

With respect to the physical evidence, the trial court held that the People had the right to impound and inventory the vehicle and, although this was not done in this case, the right to do so would have led to the "inevitable discovery” of the items sought to be suppressed. We agree with the trial court that suppression of the physical evidence should have been denied, but for a different reason.

The defendant was caught literally red-handed at 12:45 a.m. New Year’s Eve at the door of an A&P with a lock in one hand and a lockpick in the other. There can be no question but that his arrest was based on probable cause. Thus it is appropriate to direct our inquiry to the action taken by the police with respect to the vehicle immediately after that arrest to determine the connection, if any, between the defendant, the vehicle, and the crime. Upon the facts presented we must determine if the police had a reasonable belief that the vehicle was, in some way, associated with the crime and that a search of the vehicle would "produce the fruits, instrumentalities, contraband or evidence” of the crime (People v Lewis, 26 NY2d 547, 552).

Without question the police, had good reason to believe that the car belonged to the defendant. It was the only vehicle in the deserted shopping center which did not appear to belong there and it had been parked in a manner which concealed it from the view of the casual passersby. Indeed, it was these two suspicious elements which led Officer Mangiaracina to record the license number even before the defendant was apprehended. The car was a Chrysler Motors vehicle and the keys found in the possession of the defendant were identified by the arresting officer as belonging to a Chrysler Motors car. The chain and disc holding the keys indicated that the car had been rented and Officer Mangiaracina had observed that the Plymouth bore rental plates. With these elements in mind the police officers, at the time they completed frisking the defendant, had every reason to believe that the car belonged to him.

Once the police were convinced that the defendant was operating the car, the nexus between the car and the crime itself became apparent. The car had most likely been used to bring the defendant to the scene of the crime and was most likely to be used by him for escape with the proceeds of his crime. At the time of the arrest the officers had no way of knowing whether the A&P was the defendant’s first target or if he had previously plundered other stores in the shopping center. In either event, the potential escape vehicle could very well have concealed stolen property, other burglar tools or additional criminal instrumentalities.

One last word on the search of the automobile. We agree with the appellant that whereas warrantless searches of automobiles have been sustained in circumstances that would not justify a similar search of a building (Cady v Dombrowsky, 413 US 433) there is no blanket "automobile exception” to the constitutional protections against unlawful searches and seizures (Preston v United States, 376 US 364; People v Spinelli, 35 NY2d 77). On the other hand, to attempt a judicial restraint on the search which was conducted in this case would be to ignore the exigencies of the moment — the danger and difficulty incidental to guarding the vehicle in a desolate parking lot at that hour on New Year’s Eve; the possibility of accomplices gaining access to the car; and, of course, the mobility of the vehicle. To say that the police should be discouraged from conducting this vehicle search would require a perverse application of the exclusionary rule.

With respect to the statements the defendant made at the police station the trial court found they were admissible because the defendant had not been coerced. However in view of the fact that the defendant had initially refused to answer questions without an attorney’s assistance the admissibility of these statements, made in the absence of counsel, does not depend solely on voluntariness in traditional terms. As noted in People v Grant, (45 NY2d 366, decided herewith), Miranda imposes additional obligations on the police when the defendant asserts his rights. And even if under these circumstances the police were not absolutely prohibited from renewing the questioning in the absence of counsel — a question we need not decide in this case — they must at least scrupulously honor the defendant’s right to counsel before continuing the interrogation (People v Grant, supra).

In People v Buxton (44 NY2d 33) we held that when a defendant asserts his right to counsel at the time of arrest the police may not simply readvise him of his rights upon his arrival at the station house in order to obtain a waiver. This case is essentially undistinguishable from Buxton because here, following the defendant’s assertion of his right to counsel, the police only broke off the questioning long enough to transport the defendant to the police station and complete the initial paperwork on the arrest. Indeed in this case they did not even take the precaution of readvising him of his rights (see People v Munlin, 45 NY2d 427, decided herewith; compare Michigan v Mosley, 423 US 96, 106). They simply ignored his earlier refusal to answer questions about the incident without the assistance of counsel and continued to question him about the same criminal acts before he had an opportunity to consult with a lawyer and obtain his advice or assistance. Thus the police did not scrupulously honor the defendant’s refusal to answer questions without an attorney and the statements are inadmissible.

Finally the People argue that if the trial court erred in denying the motion to suppress the statements, we should only vacate the plea to the Roslyn Heights indictment since the suppression motion was only directed at that indictment. They rely on People v Lowrance (41 NY2d 303) in which we held that a defendant who had been convicted at trial on one indictment and had later pleaded guilty to an additional count in satisfaction of other charges should not be entitled to have the plea set aside merely because the conviction on the verdict was later reversed for trial errors. Although in the Lowrance case the defendant had received concurrent sentences on all counts we noted that he pleaded without any commitment on sentence and thus should not be permitted to "renounce the understanding made at the time of plea” (People v Lowrance, supra, p 305). In this case however the plea covered both indictments and was expressly conditioned on the negotiated agreement that the defendant would receive concurrent sentences on the separate counts to which he pleaded. Thus in order to give effect to the plea commitment in this case the plea should be vacated in its entirety.

Accordingly, the order of the Appellate Division should be reversed, the plea vacated and the defendant’s statement suppressed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Fuchsberg and Cooke concur.

Order reversed, etc.


author: Jasen, J.

text:
    In the Matter of Richard F. Fuhst, Appellant, v Joseph Foley et al., Constituting the Zoning Board of Appeals of the Town of Greenburgh, Respondents.
    Argued September 19,1978;
    decided October 26,1978

      POINTS OF COUNSEL

      Alfred E. Page, Jr., James F. Donohue and Joseph J. Buderwitz, Jr., for appellant.
    I. Appellant clearly demonstrated practical difficulties so as to justify the granting of the requested five-foot by five-foot variance in the front-yard setback requirement; the denial by the zoning board was arbitrary and capricious and an abuse of its discretion; the judgment of the Supreme Court, Special Term should have been affirmed; it was error for the court below to reverse. (Matter of Hoffman v Harris, 17 NY2d 138; Matter of Fleming v Choate, 8 AD2d 969; Matter of Hickox v Griffin, 298 NY 365; Matter of Baskin v Zoning Bd. of Appeals of Town of Ramapo, 40 NY2d 942; Matter of Lippe v Cisternino, 44 Misc 2d 510; Matter of Halstead Ave. Realty Corp. v Holtzmann, 55 AD2d 901; Matter of Fulling v Palumbo, 21 NY2d 30; Con tino v Incorporated Vil. of Hempstead, 27 NY2d 701; Matter of 113 Hillside Ave. Corp. v Zaino, 27 NY2d 258; Matter of Cowan v Kern, 41 NY2d 591.) II. The majority of the court below erroneously based its reversal of Special Term’s judgment on inapplicable law; it was error for the majority of the court below to reverse on the authorities cited in its decision; the applicable law is correctly cited in the dissenting opinion and should have been applied. (Ministers, Elders & Deacons of Ref Prot. Dutch Church of Greenville v Schultz, 37 AD2d 611; Matter of National Merritt v Weist, 50 AD2d 817; Martinos v Zoning Bd. of Appeals of Town of Smithtown, 58 AD2d 826; Banos v Colborn, 35 AD2d 281.)

      Joel H. Sachs, Town Attorney (Steven M. Silverberg of counsel), for respondents.
    I. The demonstration by appellant of what is admittedly a personal inconvenience, is insufficient to constitute a practical difficulty necessitating the issuance of an area variance. (Matter of Village of Bronxville v Francis, 1 AD2d 236, 1 NY2d 839; Ministers, Elders & Deacons of Ref. Prot. Dutch Church of Greenville v Schultz, 37 AD2d 611; Matter of Cowan v Kern, 41 NY2d 591; Van Deusen v Jackson, 35 AD2d 58, 28 NY2d 608; Matter of Baskin v Zoning Bd. of Appeals of Town of Ramapo, 40 NY2d 942; Matter of Zebrowski v Herdman, 72 Misc 2d 973; Matter of Lippe v Cisternino, 44 Misc 2d 510.) II. This court should not substitute its judgment for that of respondents. (Matter of Ernst v Board of Appeals on Zoning of City of New Rochelle, 274 App Div 809, 298 NY 831; People ex rel. Werner v Walsh, 212 App Div 635; People ex rel. St. Albans-Springfield Corp. v Connell, 257 NY 73; Matter of Fiore v Zoning Bd. of Appeals of Town of Southeast, 21 NY2d 393; People ex rel. Hudson-Harlem Val. Tit. & Mtge. Co. v Walker, 282 NY 400; Matter of Cowan v Kern, 41 NY2d 591.)
   OPINION OF THE COURT

Jasen, J.

The sole issue presented for our determination is whether the zoning board of appeals abused its discretion, as a matter of law, in denying the petitioner’s application for an area variance based on "practical difficulties”.

Richard F. Fuhst, the petitioner, is the owner of a one-family dwelling located in a residential zoning district of the Town of Greenburgh in the County of Westchester. The applicable section of the town zoning ordinance provides for a 25-foot front-yard setback. Without obtaining a building permit, petitioner proceeded to enclose the front entrance of his dwelling. While in the process of this construction, petitioner was advised by an assistant building inspector of the town that he must acquire a permit in order to do this type of work. Because the planned enclosure would extend beyond the required front-yard setback, he was further advised that he needed an area variance before a building permit could be issued. Petitioner, thereafter, applied to respondents, the Zoning Board of Appeals of the Town of Greenburgh, for a variance to reduce the required front-yard setback from 25 feet to 21 feet in order to enclose his front porch. Apparently, while this application was pending, petitioner completed the enclosure.

After a hearing, the zoning board denied the application for an area variance, and petitioner did not seek a review of this determination. Approximately three months later, petitioner filed a new application requesting nearly identical relief, to wit, a reduction in the front-yard setback from 25 feet to 20 feet, rather than the 21 feet as initially requested. At this hearing, petitioner offered in evidence a letter from the attending physician of petitioner’s infant children, which states, in substance, that the infant children suffer from repeated respiratory infections, and construction of the front door enclosure would prevent drafts and be beneficial to the children’s health. Petitioner also asserted that the enclosure reduced heating costs and improved the appearance of the dwelling.

The zoning board, in denying the application, stated, inter alia, that petitioner "failed to demonstrate unique circumstances or practical difficulty or hardship running with the land.” Petitioner commenced this article 78 proceeding to vacate the zoning board’s determination as arbitrary and capricious. Special Term found that petitioner had "shown sufficient practical difficulties as to require the issuance of the requested area variance”. The Appellate Division, with one Justice dissenting, reversed, on the law, and confirmed the zoning board’s decision.

There should be an affirmance. We begin, as we must, by reiterating the well-established rule that local zoning boards have discretion in considering applications for variances and the judicial function is a limited one. A zoning board determination should not be set aside unless there is a showing of illegality, arbitrariness or abuse of discretion. (Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309.) That is to say, the determination of responsible local officials in the affected community will be sustained if it has a rational basis and is supported by substantial evidence. (Matter of Cowan v Kern, 41 NY2d 591, 599; McGowan v Cohalan, 41 NY2d 434, 438; Matter of Wilcox v Zoning Bd. of Appeals of City of Yonkers, 17 NY2d 249, 255.)

Hence, our concern is whether there is substantial evidence to support the determination reached by the zoning board in denying petitioner an area variance. We believe there is. It is incumbent upon an applicant for an area variance to demonstrate that "strict compliance with the zoning ordinance will result in practical difficulties.” (Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309, 314, supra; e.g., Matter of Consolidated Edison Co. of N. Y. v Hoffman, 43 NY2d 598, 606; Matter of Wilcox v Zoning Bd. of Appeals of City of Yonkers, 17 NY2d 249, 255, supra; Matter of Village of Bronxville v Francis, 1 AD2d 236, 238, affd 1 NY2d 839; 2 Anderson, New York Zoning Law and Practice [2d ed], §§ 18.32, 18.33, 18.40.) While it would appear that no precise definition of the term "practical difficulties” has yet been formulated, in general, petitioner must show that as a practical matter he cannot utilize his property or a structure located thereon "without coming into conflict with certain of the restrictions of the [zoning] ordinance”. (3 Rathkopf, Law of Zoning and Planning [4th ed], ch 45, § 1.)

In the vast majority of cases concerning area variances, the courts of this State have been confronted by situations in which the unique characteristics of the land itself are such that literal application of the zoning ordinance hinders practical utilization of the property. (See, e.g., Matter of Wilcox v Zoning Bd. of Appeals of City of Yonkers, 17 NY2d 249, supra [80-foot difference in grade between front and rear of lot]; Matter of Wachsberger v Michalis, 19 Misc 2d 909, affd 18 AD2d 921 [undersized plot]; Matter of Feldman v Nassau Shores Estates, 12 Misc 2d 607, affd 7 AD2d 757 [undersized plot].)

Concededly, petitioner does not now contend that the denial of his request for a variance places him in a position of having property or a structure located thereon which cannot be used without coming into conflict with the zoning ordinance. Petitioner already has the use of a one-family residence which has been developed for that purpose and which he presently occupies with his family. Rather, the record discloses that petitioner seeks relief from the required 25-foot front-yard setback to accommodate his front entrance enclosure, constructed in the hope that by eliminating drafts from the repeated opening and closing of the front door, his children’s respiratory infections will be curtailed. Simply stated, petitioner’s primary purpose in requesting the area variance was motivated by the personal health infirmities of his family.

The question of whether health problems of individual residents can constitute practical difficulties sufficient to require an area variance is one of first impression for this court. While petitioner’s intentions prompting the construction of a front entrance enclosure are understandable, we believe the possible alleviation of a family health problem is a purely personal objective, only tenuously related to petitioner’s use of his property as a one-family residence. Only in rare circumstances, not now before this court, may problems of a personal nature possibly constitute "practical difficulties” to the landowner, therefore justifying the issuance of an area variance.

Although petitioner cites Matter of Lippe v Cisternino (44 Misc 2d 510) and Matter of Zebrowski v Herdman (72 Misc 2d 973) as authority for the proposition that illness, invalidity or poor health of the applicant or members of his family constitutes practical difficulties, these cases are distinguishable from the present case since their holdings are predicated upon the ground that due to the number of persons living in the residence, additional facilities were deemed necessary. (See, also, Quaglio v La Freniere, 211 NYS2d 239.) Since any allegation of the need for additional living space is foreign to petitioner’s application, we need not now reach the merits presented by such circumstances.

No factor submitted by petitioner to the zoning board in support of his application for an area variance indicates that petitioner or his family is being denied the practical use of the dwelling by requiring strict compliance with the 25-foot front-yard setback mandated by the town’s zoning ordinance. The conjectured benefits to the children’s health, or indeed the reduction in petitioner’s electric bills, lack a meaningful nexus to the use of the property itself. Thus, we agree with the Appellate Division’s conclusion that "[a]t most, personal convenience was proven.” (57 AD2d 956.)

We reject petitioner’s assertion that this court’s recent decision in Matter of Baskin v Zoning Bd. of Appeals of Town of Ramapo (40 NY2d 942) expressly approved a determination that an applicant’s personal problem suffices to merit a zoning variance. Our holding in Baskin (supra) dealt solely with the issue of whether a dwelling occupied by what would clearly qualify as one family under the zoning ordinance becomes a two-family dwelling under the same zoning ordinance merely because it contains two kitchens.

In sum, an applicant does not qualify for an area variance by showing that he is merely inconvenienced by the zoning restrictions. (Van Deusen v Jackson, 35 AD2d 58, 62, affd 28 NY2d 608; 2 Anderson, New York Zoning Law and Practice [2d ed], § 18.37.) Instead, he must demonstrate a practical difficulty in the use and development of his property which would necessitate the granting of an area variance. This, on the record before us, petitioner failed to do.

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

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.

       We note that in Aronson v Board of Appeals of Stoneham (349 Mass 593), the Supreme Judicial Court of Massachusetts held that sufficient hardship to warrant a variance of the side-yard provisions was not shown where the proposed porch was for the use of an invalid child, even though it was determined that high shrubbery between the adjacent lots preserves the privacy of neighbors and that the value of the adjoining properties will not suffer by reason of the intended addition.