author: Simons, J.

text:
    Herzog Brothers Trucking, Inc., Also Known as Herzog Brothers, Inc., et al., Appellants, v State Tax Commission et al., Respondents.
    Argued March 23, 1987;
    decided May 7, 1987

      POINTS OF COUNSEL

      Joseph E. Zdarsky and Guy J. Agostinelli for appellants.

      Robert Abrams, Attorney-General (Lew A. Millenbach, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Simons, J.

In this action for a declaratory judgment concerning the power of the State Tax Commission to impose a tax on an out-of-State plaintiffs wholesale distribution of motor fuel to Seneca Indian retailers on the Allegany and Cattaraugus Reservations, plaintiffs appeal pursuant to permission granted by the Appellate Division on the certified question: "Did this court err as a matter of law in reversing the order of Special Term and denying plaintiffs’ motion for a preliminary injunction?” We hold that the Appellate Division’s determination of the motion for a preliminary injunction was erroneous and, consequently, we reverse the order below and remit the matter to the Appellate Division for further proceedings.

I

The underlying facts are not in dispute. Plaintiffs, Herzog Brothers Trucking, Inc. and its corporate principals, allege in their complaint that Herzog is a Pennsylvania corporation engaged in wholesale and retail distribution and sales of motor fuels. In June 1984, Herzog began wholesale distribution of motor fuel to the Seneca Nation of Indians on its Allegany and Cattaraugus Reservations in New York, selling the motor fuel to authorized Indian retail establishments on these reservations. Such sales constituted Herzog’s only transactions in motor fuel in this State. Prior to June 1, 1985, sales tax on motor fuel was to be collected at the time the fuel was sold to the ultimate consumer, and a motor fuel tax was to be collected upon the first sale by the distributor (see, Tax Law, former arts 12-A, 28). Believing themselves exempt from State regulation and taxation of motor fuel purchases, the Seneca Indian retailers refused to pay Herzog any State taxes on these transactions. Nevertheless, in October 1984, the State Tax Commission began assessing motor fuel taxes against the corporation.

On June 1, 1985, in order to prevent the continued circumvention of the sales tax on motor fuel, the Legislature amended article 28 of the Tax Law to impose the sales tax at the time that the motor fuel is imported or first sold (see, L 1985, ch 44, § 20, adding Tax Law § 1102). Thus, at the present time, articles 12-A and 28 of the Tax Law impose motor fuel and sales taxes upon the importation and sale of motor fuel within the State (see, Tax Law §§ 284, 284-a, 284-c; § 1101 [b] [4] [ii]; §§ 1102, 1105). The taxes are assessed to, and collected from, the distributor and then included in its wholesale price (see, Tax Law § 282 [1]). Following purchase from the distributor, the retailer includes the tax in its retail price and passes it on to the ultimate consumer. Where the ultimate consumer is an Indian, or otherwise exempt from taxation, the taxes are refunded, or a credit is given (see, Tax Law §§ 289-c, 1139).

Plaintiffs brought this declaratory judgment action in November 1985 seeking a declaration that the State of New York is without power to impose the motor fuel taxes and sales taxes on Herzog’s sales to Indians on Indian reservations; that the Tax Law, both prior and subsequent to the 1985 amendment, does not expressly apply to its sales of motor fuel to Indians on Indian reservations and that, insofar as the Tax Law purports to impose these taxes on such sales, it is unconstitutional; that the State of New York is without power to regulate or interfere with sales of motor fuel by Herzog to Indians on Indian reservations and, to the extent State requirements concerning registration, recordkeeping, filing of returns and claiming of refunds apply to such sales, the requirements are unconstitutional. Thereafter, by motion for an order to show cause, plaintiffs moved for a preliminary injunction enjoining and restraining the State of New York from determining, collecting or attempting to collect any motor fuel taxes and sales taxes on the sales of motor fuel by Herzog to Indians on Indian reservations and from otherwise interfering with or regulating such sales. Special Term granted plaintiffs’ motion for a preliminary injunction, reasoning that "[t]he eventual success of plaintiffs on the merits of their application is manifest”. On appeal, the Appellate Division reversed the order on the law and denied the motion for a preliminary injunction. The court found that plaintiffs failed to establish the requisite clear likelihood of success on the merits, because the challenged provisions of the Tax Law merely imposed a " 'minimal burden’ of collecting the taxes from a non-Indian consumer on an Indian tribe or retailer as long as the legal incidence of the taxes falls on non-Indian purchasers” (122 AD2d, at 520). The Appellate Division, therefore, held that the imposition of motor fuel and sales taxes on Herzog’s motor fuel transactions with the Seneca Nation was "fair, impartial and permissibly constitutional.” Two Justices dissented from the Appellate Division order of reversal on the ground that Federal law preempts and prohibits the imposition of taxes by a State when the burden of such taxes are borne by reservation Indians, or when the tax is applied to the trade relationship between reservation Indians and their suppliers.

II

In general, the determination of an application for a provisional remedy is addressed to the discretion of the lower courts and — absent a question of power to exercise discretion, or abuse in the exercise of discretion, in determining the application — is beyond this court’s review (see, Brady v Ottaway Newspapers, 63 NY2d 1031). When, however, the Appellate Division denies discretionary relief on an issue of law alone, and makes clear that no question of fact or discretion entered into its decision, that question of law is considered decisive of the correctness of the determination and this court has jurisdiction to review it on a properly certified question from the Appellate Division (see, Cohen and Karger, Powers of the New York Court of Appeals § 88, at 377 [1952 rev ed]; Public Adm’r v Royal Bank, 19 NY2d 127, 129-130). The only issue before us on this appeal by certified question is whether, on the motion for a preliminary injunction, plaintiffs failed to establish, as a matter of law, the requisite clear likelihood of success on the merits of their challenge to the Tax Commission’s imposition of taxes on their motor fuel transactions with the Seneca Nation of Indians residing on the Allegany and Cattaraugus Reservations.

¡II

Plaintiffs contend that New York may not constitutionally tax their wholesale sales of motor fuel to Indian retailers on Indian reservations because the State is precluded from doing so "by reason of the United States constitution and of the laws of the United States enacted pursuant thereto” (Tax Law § 284 [1]; § 1102). They argue that the Federal Indian trader statutes (25 USC §§ 261-264), enacted pursuant to article I (§ 8, cl 3) of the United States Constitution, vest the Commissioner of Indian Affairs with the sole power and authority to regulate trade with Indians. They contend that, by virtue of such legislation and supporting regulations, Federal law has totally preempted the regulation of sales made to Indians on Indian reservations, including State taxation of Indian trade (citing Central Mach. Co. v Arizona Tax Commn., 448 US 160). Plaintiffs further maintain that, although Indian vendors in a chain of distribution might be required to collect a tax from a non-Indian retailer customer, the Indian vendors cannot be required to pay a State tax to their suppliers in connection with their wholesale purchases (relying on California State Bd. of Equalization v Chemehuevi Indian Tribe, 474 US 9, reh denied — US —, 106 S Ct 839; Washington v Confederated Tribes, 447 US 134, reh denied 448 US 911; Moe v Salish & Kootenai Tribes, 425 US 463).

Defendants counter that the tax scheme here challenged neither imposes a tax upon plaintiffs or the Seneca Nation of Indians, nor places an impermissible burden upon a transaction between them. The Tax Law merely requires that Herzog and the Indian retailers keep adequate records of their sales, and imposes upon them a minimal burden of precollecting the taxes due from the non-Indian consumer. Where the ultimate sales are made to Indians, the State refunds that portion of the tax prepaid by the retailer and distributor. Defendants maintain that the motor fuel tax scheme is proper and constitutional, for Federal law has not preempted the State of New York from exercising its authority to compel the assistance of distributors and retailers in collecting taxes owed by non-Indian consumers (relying on Washington v Confederated Tribes, supra). Rather, the Supreme Court has upheld State tax schemes that require prepayment of State taxes by Indian vendors (citing Moe v Salish & Kootenai Tribes, supra; Washington v Confederated Tribes, supra). Defendants contend that as long as the actual burden, as well as the legal incidence, of the motor fuel taxes falls on the non-Indian consumer — which it does here — the taxing scheme is constitutional.

The Supremacy Clause of the United States Constitution invalidates State laws that " 'interfere with, or are contrary to’ ” Federal law (see, Hillsborough County v Automated Med. Labs., 471 US 707, 712, quoting Gibbons v Ogden, 9 Wheat [22 US] 1, 211). The operation of the Supremacy Clause is not dependent on an express congressional statement of preemption. Rather, "Congress’ intent to pre-empt all state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress 'left no room’ for supplementary state regulation” (id., at 713, citing Rice v Santa Fe Elevator Corp., 331 US 218, 230; see also, Tribe, American Constitutional Law § 6-25, at 384). Preemption of a whole field of regulation is likewise inferred where Federal interest in that field " 'is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject’ ” (Hillsborough County v Automated Med. Labs., 471 US, at 713, supra, quoting Rice v Santa Fe Elevator Corp., supra).

As a leading treatise on Indian law indicates: "Indian affairs occupy a unique place in Supremacy Clause law and theory” (Cohen, Federal Indian Law, at 272 [1982 ed]; see generally, id., at 270-279). This is apparent from the fact that the Supreme Court has relied almost exclusively on prior legislative and judicial precedent involving Indian matters, without relying on Supremacy Clause precedents in other fields, in determining the scope of the preemption doctrine in Indian cases (id., at 272-273). Inasmuch as the Constitution vests the Federal Government with exclusive authority over relations with Indian tribes, Congress has plenary and preemptive power in all matters concerning the Indians, subject to the Bill of Rights and other constitutional considerations (see, Montana v Blackfeet Tribe, 471 US 759, 764 [construing US Const, art I, § 8, cl 3]; and see, Tribe, American Constitutional Law § 16-14, at 1018).

In general, Indian tribes and individuals are exempt from State taxation within their own territory. Congress may authorize the imposition of State taxes upon them if it so chooses, but it has never done so as a general matter and the Supreme Court has refused to uphold State taxation of Indians absent an "unmistakably clear” expression of congressional intent to authorize the particular tax (see, Montana v Blackfeet Tribe, 471 US, at 764-766, supra; see generally, Cohen, Federal Indian Law, at 407-412; Goldberg, A Dynamic View of Tribal Jurisdiction to Tax Non-Indians, 40 Law & Contempt Probs 166, 183 [1976]). States may validly impose a nondiscriminatory tax on the non-Indian customers of Indian retailers doing business on reservations, however, even if the tax seriously disadvantages or eliminates the Indian retailer’s business with non-Indians (Washington v Confederated Tribes, 447 US 134, 151, supra [discussing the principles set forth in Moe v Salish & Kootenai Tribes, 425 US 463, supra]). If the incidence of the tax falls on non-Indians, the State’s action in imposing the tax is permissible because it does not interfere with any supervening Federal law and does not violate the proscription against direct taxation of Indians without clear congressional consent (see, Moe v Salish & Kootenai Tribes, supra, at 483, construing Mescalero Apache Tribe v Jones, 411 US 145, 148). Thus, the Supreme Court has approved State taxation schemes requiring Indian retailers on reservations to collect the tax imposed on the non-Indian customer, reasoning that such a requirement "is a minimal burden designed to avoid the likelihood that in its absence non-Indians purchasing from the tribal seller will avoid payment of a concededly lawful tax” (Moe v Salish & Kootenai Tribes, supra, at 483; see also, California State Bd. of Equalization v Chemehuevi Indian Tribe, 474 US 9, supra). The same rationale has been applied to State taxation schemes that require Indian retailers on reservations to keep detailed records of all exempt and nonexempt sales of taxable items (see, Washington v Confederated Tribes, 447 US 134, 160, supra). Defendants contend that the present statutes are lawful because they do no more than what these Supreme Court decisions permit. The Appellate Division agreed with this reasoning but we are persuaded otherwise.

Concededly the tax assessed here must ultimately be paid by non-Indians, but that is not the end of the inquiry. When a State tax is imposed upon, or otherwise burdens, a transaction between a non-Indian customer and an Indian individual or tribe, and the legal incidence of the tax is determined to properly fall on the non-Indian party, the Supreme Court has nonetheless "examined the language of the relevant federal treaties and statutes in terms of both the broad policies that underlie them and the notions of sovereignty that have developed from historical traditions of tribal independence” to determine whether the method of collecting the State tax is constitutional (Cohen, Federal Indian Law, at 413, quoting White Mountain Apache Tribe v Bracker, 448 US 136, 144-145). Where, as here, the taxation scheme imposes obligations on a wholesale trader to Indian retailers on Indian reservations, a different result follows than that urged by defendants, and adopted by the Appellate Division, because Federal law preempts and invalidates the State action (see generally, id., at 413-414).

The Supreme Court has drawn a clear distinction between State taxation schemes which merely require Indian retailers to collect a valid tax on non-Indian purchasers and those that burden persons engaged in trade with Indians on reservations (see, Washington v Confederated Tribes, 447 US 134, 155, supra; Moe v Salish & Kootenai Tribes, 425 US 463, 482-483, supra). A dispositive factor recognized by the court in drawing such a distinction is the clearly manifested intent of Congress in enacting the trader laws to foster tribal self-government and economic development by enactment of the trader statutes (see, Washington v Confederated Tribes, supra, at 155 [construing 25 USC § 261 et seq.J). No similar intent is implicated in sales by reservation Indians to non-Indians (id., at 155-156). Thus, since there is no dispute that plaintiff Herzog is a "trader” within the meaning of the Federal Indian trader laws, we must consider the Indian trader statutes, and the cases construing them, to determine if Federal law preempts the State tax at issue.

Ever since Congress passed a statute in 1790 regulating the licensing of Indian traders, the Federal Government has "comprehensively regulated trade with Indians to prevent 'fraud and imposition’ upon them” (Central Mach. Co. v Tax Commn., 448 US 160, 163, supra [discussing Act of July 22, 1790, ch 33, 1 US Stat 137]). The present laws, known collectively as the Indian trader statutes, similarly "incorporate a congressional desire comprehensively to regulate businesses selling goods to reservation Indians for cash or exchange” (Washington v Confederated Tribes, 447 US 134, 155, supra). In Warren Trading Post v Tax Commn. (380 US 685, 687), which involved a retail trader’s challenge to a State tax on gross proceeds or income from sales imposed on its trade with Indians on the Navaho Reservation, the Supreme Court emphasized that the Federal Government has exercised "a sweeping and dominant control over persons who wished to trade with Indians and Indian tribes”. In construing the Federal Indian trader laws, and the implementing regulations, the court observed that "[t]hese apparently all-inclusive regulations and the statutes authorizing them would seem in themselves sufficient to show that Congress has taken the business of Indian trading on reservations so fully in hand that no room remains for state laws imposing additional burdens upon traders” (id., at 690 [n omitted]).

Later, in the Central Mach. Co. case involving an Arizona "transaction privilege” tax assessed against the seller of tractors to an enterprise of the Gila River Indian Tribe, the Supreme Court reaffirmed that the mere existence of the Indian trader laws preempted the field of transactions with reservation Indians, even where the seller was an unlicensed trader with no permanent place of business on the Indian reservation (see, Central Mach. Co. v Arizona Tax Commn., 448 US 160, 165, supra). The court noted that "[i]t may be that in light of modern conditions the State of Arizona should be allowed to tax transactions such as the one involved in this case. Until Congress repeals or amends the Indian trader statutes, however, we must give them 'a sweep as broad as [their] language’ * * * and interpret them in light of the intent of the Congress that enacted them” (id., at 166 [citations omitted]).

The Supreme Court cases construing the Indian trader statutes are dispositive. We determine that Congress has preempted the field of regulating trade with Indians on reservations and has left "no room” for the application of supplementary State tax laws, such as the one here at issue, that impose "additional burdens” on Indian traders (see, Warren Trading Post v Tax Commn., 380 US 685, 690, supra). Thus, no matter how minimal the burden imposed by the motor fuel taxation scheme on Herzog, as a trader to the Seneca Nation, such regulation is preempted by the Federal Indian trader laws and the Appellate Division erred, as a matter of law, in holding that plaintiffs had not established a "clear likelihood of success on the merits” on their application for a preliminary injunction.

Accordingly, the certified question should be answered in the affirmative, the order of the Appellate Division reversed and the matter remitted to that court for a consideration of undetermined questions (see, Public Adm’r v Royal Bank, 19 NY2d 127, 129-130, supra).

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

Order reversed, with costs, and case remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein.

      .Article I (§ 8, cl 3) of the Constitution grants Congress the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”.

      .The Supremacy Clause of the United States Constitution, contained in article VI, clause 2 provides: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

      .25 USC § 261 provides: "The Commissioner of Indian Affairs shall have the sole power and authority to appoint traders to the Indian tribes and to make such rules and regulations as he may deem just and proper specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians.” The Supreme Court has construed the term "trader” to apply to any person introducing goods, or trading, in Indian country or on an Indian reservation (see, Central Mach. Co. v Arizona Tax Commn., 448 US 160, 164-165 [relying on 25 USC § 264]).

      .A 1906 opinion by this court holds that, because of the unique history of the Seneca Nation of Indians in this State, New York has exclusive sovereignty and jurisdiction over these Indians, and the Indian trader statutes are not applicable to their affairs (see, Jemison v Bell Tel. Co., 186 NY 493). Although Jemison has never been explicitly overruled, its holding has been implicitly rejected by subsequent decisions of this court and of the Supreme Court (see, e.g., Warren Trading Post v Tax Commn., 380 US 685; People ex rel. Cusick v Daly, 212 NY 183, 196-197).


source: Caselaw Access Project

author: Chief Judge Wachtler.

license: Public Domain

text:
    The People of the State of New York, Appellant, v Arnold Catten, Respondent. The People of the State of New York, Respondent, v John Murphy, Appellant.
    Argued March 25, 1987;
    decided May 7, 1987

      POINTS OF COUNSEL

      Mario Merola, District Attorney (Susan L. Valle and Peter D. Coddington of counsel), for appellant in the first above-entitled action.

      Yasmin McFarlane-Vaughn for respondent in the first above-entitled action.

      David J. Williams and Philip L. Weinstein for appellant in the second above-entitled action.

      Robert M. Morgenthau, District Attorney (Phyllis A. Monroe and Amyjane Rettew of counsel), for respondent in the second above-entitled action.
   OPINION OF THE COURT

Chief Judge Wachtler.

In each of these cases, this court must decide whether a retrial following the declaration of a mistrial over defense objection violates the ban on double jeopardy, though it was the defendant who had originally requested the mistrial. In the first case, the defendant attempted to withdraw his application after it was granted; in the second, the defendant’s application was effectively denied, and the court later granted the People’s motion, made on the same ground, "on consent.”

I

In the first case before us, Arnold Catten was indicted for various drug and weapons charges, all arising from his sales of drugs to an undercover officer on two separate occasions, only the second of which is relevant to the issue raised on this appeal.

At a pretrial Wade hearing (Wade v United States, 388 US 218), the undercover officer testified that, at the time of the second sale, the defendant was clad only in a blue shirt and aqua shorts. After the sale, a backup team transported the defendant from the apartment in which it had taken place to the precinct house and placed him in a lineup. The undercover officer further stated at the hearing that he identified as the seller the defendant, who was wearing the same clothing in the lineup that he had been wearing in the apartment.

At trial, the undercover officer repeated the substance of his testimony at the Wade hearing. However, a member of the backup team testified for the People that, although the defendant was wearing his underwear in the apartment when the officer entered after the second sale, he had allowed the defendant to put on his street clothes, consisting of pants and a jacket, before being transported to the precinct house. When first placed in the lineup and viewed by the undercover, the defendant was still in his street clothes. However, the defendant’s outer clothing was removed at some point during the lineup, revealing a blue T-shirt and aqua shorts, after which the undercover officer made the identification.

At the conclusion of the testimony of the backup officer and another witness for the People, counsel and the court held an off-the-record conference in the absence of the jury, and recessed for lunch. When court reconvened, defense counsel moved, in the presence of the defendant but outside the hearing of the jury, for a mistrial based on the backup officer’s account of the precinct house identification procedure. The court concluded that the prosecutor, whether intentionally or not, had misled the jury, and that there was no way he could purge the jury’s deliberations "of the fact that the identification of the defendant, on [the date of the second sale and precinct house lineup], depended on the fact that he was dressed the same way as he was in the apartment, at the same time he saw him * * * The motion is granted.” An off-the-record discussion between counsel and the court followed, after which the court stated: "I’ve granted your motion. The motion is granted. Mistrial.” Following further off-the-record discussion, defense counsel stated: "Your Honor, if I may, I have had some time to discuss this matter with my client and he informs me that he wants me to withdraw that motion,” adding that he had not had time to discuss the matter with his client before the motion was made. The court found he had ample time for discussion, however, and stated that the motion could not be withdrawn.

Following a second Wade hearing and trial, a jury convicted Catten of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree and the court imposed sentence. A divided Appellate Division reversed that judgment, vacated the conviction, dismissed the indictment, and remitted for entry of a sealing order pursuant to CPL 160.50.

II

In the second case before us, an indictment charged defendant John Murphy with manslaughter in the first degree and criminal possession of a weapon in the third degree. This resulted from a dispute in his clothing store with Perry Hazard, during which, after Hazard displayed a knife, defendant shot him several times, inflicting injuries that later caused his death.

At trial, the People’s only eyewitness was Felita Lee, a friend and part-time employee of Hazard. On direct examination, the prosecutor asked her if she had a problem with the defendant two days before the incident, and she replied that he had offered her a free jacket if she would "come in the back” of the store with him. After Lee was asked, and she answered, two more questions, defense counsel moved for a mistrial outside the hearing of the jury. The court replied: "At this point your application will be denied. You can proceed further as soon as we finish with this witness.”

On cross-examination, Lee gave testimony which tended to support the defendant’s claim of justification. After extended colloquy concerning the admissibility of a related written statement, the prosecutor stated, in the absence of the jury:

"Your Honor, I agree with Mr. Mason [defense counsel] and I regret that this occurred but I think there has been a very serious, serious error made at this trial to the detriment of the defendant. I unfortunately did not know what this kid was going to say and I’m partly to blame and I must accept responsibility.
"What I was attempting to elicit because there was a nature of a claim here of self defense, that there had not been prior altercations between these two men, and when she said that Perry told her to stay away from him, it appears from that answer that Perry had had some problem with Murphy. And I asked the following question that I didn’t know the answer was and quite frankly, I thought the question might be objected to, but I didn’t know.
"I didn’t know that the witness was going to make a statement about being asked to be brought into the back room. I had never heard anything about that at all, and I have not spoken to this witness prior to today, since the Grand Jury. I think that statement that the defendant attempted to bring a child into the back room of his home is highly prejudicial and I don’t know what I can do about it.
"the court: You joining in the application?
"mr. ferguson: Your Honor, reluctantly I think that mistrial must be appropriate, if Your Honor is in agreement that it’s that prejudicial.
"the court: I’ll grant the application, the defendant’s application for a mistrial. * * * I’ll discharge this jury.”

Ms. Lee and her mother were advised that the trial was not to continue then but that Ms. Lee should remain available to the prosecution. Defense counsel stated he wanted to speak with his client before the witness left, adding that "[i]t may very well be that I will withdraw the application.” The following occurred:

"the court: It’s too late. It was granted.
"mr. mason: * * * I’m very, very concerned about two things. One is the rapidity in which the application was granted over no objection, which causes me some concern.
"the court: It was not over no objection. It was on consent. You both made the application. Of course, it was granted.
"mr. mason: I am further concerned about the fact that the application has been granted because I think, very frankly, that the Prosecutor probably had some feelings about how this case was going.
"For all of those reasons, I would withdraw the application, ask for a proper instruction of the Court and let us proceed. By now, I would request an adjournment.
"the court: Well, at this point, it’s a little late to withdraw your application. You made your application. It was granted, joined in by the District Attorney, and I granted it on the record. [Mis]trial has been granted.”

At a second jury trial, Murphy was convicted of manslaughter in the second degree and criminal possession of a weapon in the third degree and sentence was imposed. The Appellate Division unanimously affirmed the judgment, without opinion.

Ill

The Double Jeopardy Clauses of both the Federal (US Const 5th Amend) and State (NY Const, art I, § 6) Constitutions prohibit a person’s being placed in jeopardy twice for the same offense. Thus, retrial will be barred after the declaration of a mistrial without the defendant’s consent unless "it is physically impossible to proceed with the trial in conformity with law” (CPL 280.10 [3]) or there was "manifest necessity” for the mistrial, or "the ends of public justice would otherwise be defeated” (United States v Perez, 9 Wheat [22 US] 579, 580; cf, Richardson v United States, 468 US 317, 323-324). However, if the defendant waives his double jeopardy protections, which include, after the jury has been impaneled and sworn, the " 'valued right to have his trial completed by a particular tribunal’ ” (Oregon v Kennedy, 456 US 667, 671-672; Illinois v Somerville, 410 US 458, 466, quoted in People v Ferguson, 67 NY2d 383, 388), by moving for a mistrial, retrial generally is not barred, regardless of whether there was manifest necessity for the mistrial (United States v Scott, 437 US 82, 93, reh denied 439 US 883; People v Ferguson, 67 NY2d 383, 388, supra; Annotation, Double Jeopardy — Retrial after Mistrial, 98 ALR3d 997, 1007, § 3). In each of the cases now before the court, therefore, we must determine whether the mistrial was granted on the defendant’s consent, and, if not, whether there was a manifest necessity for the declaration.

IV

Defendant Catten moved for a mistrial some time after the backup officer’s testimony suggested that the undercover officer may have been unable to identify him until he removed his outer clothing, revealing the underwear in which he was clad at the time of the sale. The motion was granted, and if that were the end of the matter, it would be clear that, regardless of whether there was manifest necessity for the mistrial, retrial would not be barred. However, immediately after the application, made by counsel on the defendant’s behalf, was granted, counsel sought to withdraw it to conform with the then-expressed wishes of his client. We conclude that the trial court did not err as a matter of law in denying the request to withdraw the application.

Preliminarily, the motion was properly before the court and the court, in declaring a mistrial, ruled upon it. We reject the Appellate Division majority’s characterization of the ruling as "merely an expression of opinion” (119 AD2d, at 449) because the jury had not yet been discharged. The pertinent statutory provision does not require discharge of the jury to "perfect” the grant of a motion for a mistrial. CPL 280.10 contemplates only a declaration of mistrial and ordering of a new trial in response to a meritorious motion for a mistrial. (See also, CPL 310.60 [1] [c], which provides that a "deliberating jury may be discharged by the court without having rendered a verdict only when * * * [a] mistrial is declared pursuant to section 280.10”.) Thus, the statutory scheme contemplates a two-step process: declaration of a mistrial, at which time the motion has been granted, followed by discharge of the jury.

Whether to allow a defendant to withdraw his mistrial application after it has been granted is a matter committed to the discretion of the trial court (Matter of Napoli v Supreme Ct., 33 NY2d 980, affg on opn at 40 AD2d 159, cert denied 417 US 947). This, of course, is to be distinguished from the motion not yet ruled upon, which a party may withdraw, provided nothing has occurred to prejudice the opposing party (People v McGrath, 202 NY 445, 453; Cardenas v Superior Ct., 56 Cal 2d 273, 363 P2d 889).

The ground proffered by defense counsel in support of his motion was that he had not had adequate time to discuss the matter with his client before moving for the mistrial. However, the court found, as a matter of fact, to the contrary, and its finding was undisturbed by the Appellate Division. If there is support in the record for it, that finding is binding on this court (People v Ferguson, 67 NY2d 383, 389, supra). Here, the record amply supports the Trial Justice’s conclusion that counsel had ample time to discuss this matter with his client. The motion for a mistrial came not at the time of the backup officer’s allegedly damaging revelations, but after he and another witness had finished testifying. Moreover, defense counsel stated on the record that he had discussed the matter off the record with the court and the prosecutor before the lunch break, and his motion was not made until after that break.

Even if counsel had not discussed his intention to move for a mistrial with his client, despite the ample opportunity he had to do so, that would not invalidate the application. As we noted in People v Ferguson (67 NY2d 383, 389-390, supra), a defendant need not agree with counsel, or even be in the courtroom when counsel moves for a mistrial, for the motion to be binding on him.

Here, given the court’s proper rejection of the proffered reason for the withdrawal request, denial of the request itself was not an abuse of discretion as a matter of law. The Appellate Division therefore erred as a matter of law in concluding that the trial court "was not warranted in declaring a mistrial over the expressed desire of defendant to go ahead with the trial” (119 AD2d 447, 449, supra). However, that court possesses the same discretionary power as the trial court and can, if so advised, substitute an exercise of its own discretion for that of Criminal Term even absent an abuse by the trial court (People v Rickert, 58 NY2d 122, 132-133). Therefore, in People v Catten, the order of the Appellate Division should be reversed and the matter remitted to it for consideration of whether to substitute an exercise of its own discretion for that of the trial court in denying the defendant’s application to withdraw his application for a mistrial, and consideration of other issues not reached on defendant’s appeal to that court.

V

People v Murphy presents a far different situation. The defendant’s mistrial application was prompted by Lee’s disclosure, while testifying for the People on direct, of the defendant’s earlier offer of a jacket in return for sex. Though the trial court, in denying the motion, stated the defense could proceed further with the application at the conclusion of Lee’s testimony, the record is clear that the motion then made was then denied.

The defendant then had no choice but to continue with the trial. To request that his motion be withdrawn would have been an empty formality; having been denied, there was nothing outstanding at that time to withdraw. When the prosecutor “joined” the earlier mistrial motion after Lee’s testimony on cross-examination had bolstered the defense claim of justification, there was nothing to join. Indeed, a realistic view of the proceedings suggests that the People may have subsequently requested a mistrial because the prosecutor perceived an error had been made which weakened his, not the defendant’s, case.

However, at that time, and indeed since the denial of his own earlier mistrial motion, the defendant possessed the " ' "valued right to have his trial completed by a particular tribunal” ’ ” (Illinois v Somerville, 410 US 458, 466, supra; see also, United States v Dinitz, 424 US 600, 609). We agree with the courts which have held that a mistrial motion is no longer pending after it is denied and additional proceedings take place (Braxton v United States, 395 A2d 759, 766-769 [DC App]; State v Flick, 495 A2d 339 [Me]), as well as those which have held that the defense must be given an opportunity to withdraw a mistrial motion if circumstances have changed between the time the motion is denied and when it is granted (United States ex rel. Russo v Superior Ct., 483 F2d 7, 17 [3d Cir], cert denied 414 US 1023; Jones v Commonwealth, 379 Mass 607, 400 NE2d 242, 251).

We reject the People’s attempt to distinguish these authorities on the grounds that here the defense motion was not unequivocally denied and had not been withdrawn, and that the court later granted the mistrial on the grounds the defendant had urged, though at the prosecutor’s prompting, thus rendering the mistrial grant on consent. As already noted, we conclude that the defense motion, though subject to renewal as any other, was denied and that, having been denied after consideration of the events which prompted it, it . did not have to be explicitly withdrawn. Moreover, the prosecutor’s and court’s avowed reliance upon those grounds is immaterial — what is material is that the motion was granted after a material change in position following the defendant’s earlier motion which had been denied. Under such circumstances, given that he registered his objection as soon as possible, it cannot be said that Murphy consented to the mistrial. Needless to say, appellate review in such situations would be facilitated if, immediately after a motion for mistrial is made and all parties are heard, the court clearly and unconditionally states its decision on the record.

A defendant can only be retried following a mistrial declared without his consent if there was manifest necessity for discontinuing the trial. Whether to order a mistrial rests in the sound discretion of the court, and when that discretion is properly exercised it will be held that there was manifest necessity for the declaration. However, here that discretion was abused when the court summarily rejected defense counsel’s request for a curative instruction, which has been held to preclude the mention of uncharged crimes from constituting reversible error (see, People v Santiago, 52 NY2d 865, 866).

The mistrial in Murphy’s case was declared without his consent and absent a manifest necessity. It therefore follows that his rights not to be placed in jeopardy were violated by the retrial. The order of the Appellate Division affirming his conviction should, therefore, be reversed, the conviction vacated and the indictment dismissed.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

In People v Catten: Order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

In People v Murphy: Order reversed, conviction vacated and indictment dismissed.

      .The Federal Constitution’s Double Jeopardy Clause provides: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”. It has been held applicable as a limitation on the power of the States, as well as the Federal Government, by incorporation into the Due Process Clause of the Fourteenth Amendment (see, Benton v Maryland, 395 US 784).

      . The New York State Constitution’s Double Jeopardy Clause provides: "No person shall be subject to be twice put in jeopardy for the same offense”. Article 40 of the Criminal Procedure Law also contains certain prohibitions on multiple prosecutions, none of which is at issue on this appeal.

      .This characterization of the events preceding the declaration of mistrial is not meant to suggest that the People had a valid ground for a mistrial motion. The circumstances governing such a motion by the People are limited by statute (see, GPL 280.10 [2], [3]).

      .In so holding, we are aware of cases such as People v Montlake (184 App Div 578, disapproved on other grounds in People ex rel. Brinkman v Barr, 248 NY 126, 129); State v Wolak (33 NJ 399, 165 A2d 174, cert denied 365 US 822); United States v Goldstein (479 F2d 1061, cert denied 414 US 873), and United States v Pappas (445 F2d 1194, cert denied sub nom. Mischlich v United States, 404 US 984), each of which rejected a defense claim that a mistrial granted after a defense request was without the defendant’s consent and therefore did not bar retrial regardless of whether there was manifest necessity for the declaration. Unlike the Murphy case before us, however, in none of the cited cases did the defendant object to the court’s ruling or attempt to withdraw his prior application on any ground. In United States v Goldstein (supra), and United States v Pappas (supra), it does not appear that circumstances had materially changed between the defendant’s motion and the court’s declaration of a mistrial. Both State v Wolak (33 NJ, at 402-403, supra) and People v Montlake (184 App Div, at 582-583, supra) in fact strongly suggest the result would have been different had the defendant objected, as Murphy did, to the court’s declaration or then attempted to withdraw the earlier application.


author: Hancock, Jr., J.

text:
    Carmen Guzman, Respondent, v Haven Plaza Housing Development Fund Company, Inc., Defendant, and Village East Towers, Inc., Appellant-Respondent. Village East Towers, Inc., Third-Party Plaintiff-Appellant-Respondent, v Daitch-Shopwell, Third-Party Defendant-Respondent-Appellant.
    Argued March 19, 1987;
    decided May 5, 1987

      POINTS OF COUNSEL

      Marc J. Lust and Martin S. Rothman for third-party defendant-respondent-appellant.

      Anthony J. McNulty and Raymond J. MacDonnell for appellant-respondent and third-party plaintiff-appellant-respondent.

      Glenn S. Koopersmith and Dominic F. Callo for respondent.
   OPINION OF THE COURT

Hancock, Jr., J.

This appeal presents two questions: (1) whether the owner of a leased commercial building covered by the New York City Administrative Code which has no obligation for repairing or maintaining the premises but retains the right to reenter and inspect and to make needed repairs at tenant’s expense may be held responsible for injuries due to a defect in the premises; and (2) if the owner may be held responsible, whether it is entitled to shift the entire responsibility to the tenant under principles of common-law indemnity or merely to contribution from the tenant for its share of the damages apportioned in accordance with their respective degrees of fault (CPLR art 14; Dole v Dow Chem. Co., 30 NY2d 143).

Plaintiff fell and sustained injuries on August 29, 1979 while descending a flight of stairs on her way to the bathroom in the grocery store operated by third-party defendant Daitch-Shopwell (Daitch) where she worked as a meat packer. Daitch occupied the premises under a long-term lease from the owner, Village East. Plaintiff sued the owner-lessor, Village East, and recovered a verdict for her injuries which the jury apportioned on the basis of fault — 60% against plaintiff and 40% against Village East. In Village East’s third-party action against Daitch (its tenant and plaintiff’s employer) the same jury apportioned Village East’s 40% share of the verdict, 33%% against Village East and 66%% against Daitch. Village East’s claim for 100% recovery against Daitch on the basis of common-law indemnity was denied. The Appellate Division affirmed, without opinion, and Village East and Daitch have appealed.

Both Village East and Daitch contend that plaintiff should not have recovered at all against Village East under established law pertaining to the liability of an owner out of possession. Village East argues alternatively that if the judgment against it is affirmed it should have a recovery over against Daitch in the full amount. For reasons to be discussed we reject these arguments and conclude that the order of the Appellate Division should be affirmed in all respects.

I

Plaintiff’s theory of recovery against Village East is that the stairs were defective and constituted a hazardous condition because they were dimly lit and because the handrail was too close to the wall. After descending three or four steps, plaintiff said her hand got caught "and, like it threw me”. She missed a step and "it was like dark in front of me, and I went down the stairs, all the way down.”

The staircase had been built by Daitch about 10 years before the accident. Under the terms of its lease with Village East, Daitch was required to maintain the premises "and at its sole cost and expense make all repairs thereto as and when needed to preserve them in good working order and condition.” For its part, Village East retained "a right to enter the demised premises at all times” for the purpose of inspection and the right to make repairs at tenant’s expense "if the tenant fail[ed] to make” them. There was no evidence that Village East had inspected the premises or that it had actual knowledge of the claimed defect.

Because the property where the accident occurred is located in Manhattan, the Administrative Code of the City of New York regulates the duties of the landlord and tenant. The Administrative Code charges the owner with responsibility "at all times for the safe maintenance of the building and its facilities” (Administrative Code § C26-105.2 [now § 27-128]). The owner must maintain "[a]ll buildings and all parts thereof’, including "[a]ll service equipment, means of egress, devices and safeguards that are required in the building by the provisions of this code or other applicable laws or regulations or that were required by law when the building was erected, altered or repaired” in good working order (Administrative Code § C26-105.1 [now § 27-127]). With respect to interior staircases the Code requires that "[h]andrails shall provide a finger clearance of IVi in.” (Administrative Code § C26604.8 [f] [now § 27-375 (f)]), and for lighting, the Code specified at the time of the mishap that "corridors and exits shall be provided with artificial lighting facilities” furnishing at least five foot candles of illumination (Administrative Code § C26605.1 [a] [now § 27-381 (a); new section now requires only two foot candles of illumination]).

II

Village East’s liability to plaintiff, we conclude, is controlled by our decisions in Tkach v Montefiore Hosp. (289 NY 387) and Worth Distribs. v Latham (59 NY2d 231) dealing with the liability of an owner out of possession under Multiple Dwelling Law § 78. In Tkach v Montefiore Hosp. (supra) a suit was brought against the owner out of possession and the lessee of an apartment building for injuries sustained when an apartment tenant was struck by falling plaster. The lease required the tenant to keep the property in repair but gave the landlord the right at any time to enter and examine the premises. Although the owner had not inspected the premises and had no actual knowledge of the defect, the court held that its retention of the right to enter and inspect was a sufficient basis to sustain liability and that the owner should be charged "with constructive notice of defects in all those parts of the building into which, by authority of the written lease, [it] may enter” (id., at 390).

In Worth Distribs. (supra) several actions for personal injuries, wrongful death and property damage arising out of the partial collapse of a hotel building were brought against the net lessee of a hotel and against the owner out of possession because of its statutory responsibility to keep the premises "in good repair” (Multiple Dwelling Law § 78). The net lease contained a provision permitting the owner to enter the premises for inspection and repairs. In holding that the owner should share liability for the damages with the net lessee we said: "Although an owner will not be held liable under section 78 where it has completely parted with possession and control of the building, the owners here reserved the right under the terms of the net lease to enter for inspection and repairs. This reservation constituted a sufficient retention of control to subject the owners to liability” (Worth Distribs. v Latham, supra, at 238).

We see no basis for distinguishing these cases. Like the owners of the buildings in Tkach and Worth Distribs. which were specifically bound by statute to keep the premises "in good repair” (Multiple Dwelling Law §78), Village East, as owner, had obligations under the Administrative Code which, it has been held, has the force and effect of statute (see, n 3, supra). Village East had both a general responsibility for safe maintenance of the building and its facilities (Administrative Code §§ C26-105.1, C26-105.2 [now §§ 27-127, 27-128]) and specific obligations pertaining to minimum handrail clearance (Administrative Code § C26-604.8 [now § 27-375]) and minimum illumination (Administrative Code § C26-605.1 [a] [now § 27-281 (a)]). Also, as in Tkach and Worth Distribs., Village East, as owner-lessor, could enter the premises "at all times” to inspect. In addition, it had the right to make repairs "if the tenant fail[ed] to make” them and to change the "arrangement and/or location” of the stairs.

Although there is no evidence that Village East had actual notice of the claimed dangerous condition, its right to reenter the premises is sufficient to charge it with constructive notice (Tkach v Montefiore Hosp., supra, at 390). Its failure to act to remedy the defect as it could have done under the lease is the basis for its liability under the various provisions of the New York City Administrative Code.

Ill

Village East’s claim for a 100% recovery in its third-party action against Daitch proceeds on the theory of common-law indemnity. Village East contends that because Daitch constructed the stairs, assumed the duty for maintenance and repairs under the lease and, as tenant, had a total and unrestricted right of possession in the premises, the entire responsibility for the safe condition of the stairs was that of Daitch. Thus, its sole obligation arose from the nondelegable duty of an owner under the pertinent provisions of the New York City Administrative Code and this obligation has been assumed by Daitch under the lease. Village East maintains, therefore — relying principally on Rogers v Dorchester Assocs. (32 NY2d 553) — that it should have full recovery over.

As we have often noted since our adoption of the rule permitting equitable apportionment of damages among tortfeasors in Dole v Dow Chem. Co. (30 NY2d 143, supra), neither Dole nor its codification in CPLR article 14 altered the "basic and satisfactory principles of common-law indemnification” (Rogers v Dorchester Assocs., supra, at 565-566; see, e.g., Garrett v Holiday Inns, 58 NY2d 253, 263; D’Ambrosio v City of New York, 55 NY2d 454, 462; Riviello v Waldron, 47 NY2d 297, 306). In Rogers (supra, at 566), we explained that the "apportionment rule applies to those who in fact share responsibility for causing the accident or harm, and does not extend further to those who are only vicariously liable, as the employer of a negligent employee, the owner of a motor vehicle operated by a negligent driver, or * * * the owner of a building who contracts with an independent contractor exclusively responsible for maintenance of the building or parts of it”. Thus, where one joint tort-feasor "is held liable solely on account of the negligence of another, indemnification, not contribution, principles apply to shift the entire liability to the one who was negligent (see, also, Logan v Easterly, 34 NY2d 648)” (D’Ambrosio v City of New York, supra, at 462).

Generally, apportionment among tort-feasors, rather than a shifting of the entire loss through indemnification, is the proper rule "when 'two or more tort-feasors share in responsibility for an injury, in violation of duties they respectively owe[ ] to the injured person’ (Smith v Sapienza, 52 NY2d 82, 87; Holodook v Spencer, 36 NY2d 35; Rogers v Dorchester Assoc., 32 NY2d 553)” (Garrett v Holiday Inns, supra, at 258). The rule gives effect to principles of equity and policy "that responsibility for damages to an injured person should be borne by those parties responsible for the injury, in proportion to their respective degrees of fault (Dole v Dow Chem. Co., 30 NY2d 143, 152)” (id., at 258). Whether apportionment or common-law indemnity should be applied in a given case, however, requires a careful analysis of the theory of recovery against each tort-feasor.

In Rogers the owner and manager of an apartment building, held liable under Multiple Dwelling Law § 78 for injuries incurred in an elevator accident, were permitted common-law indemnity against Otis Elevator Company because Otis, under the maintenance contract, had assumed "the exclusive duty to maintain the elevators” and "the owner and manager had the right * * * to look to Otis to perform their entire duty to plaintiff” (Rogers v Dorchester Assocs., supra, at 563; emphasis added). On the other hand, in D’Ambrosio v City of New York (55 NY2d 454, 463, supra) we concluded that apportionment of damages rather than indemnity was the appropriate rule. There, a passerby tripped on a watermain valve cover maintained in the public sidewalk for the special benefit of the abutting owner. We held that by permitting the valve cover to fall into disrepair "both the municipality and the landowner * * * breached their respective duties to members of the public, and both [could] be made to respond in damages to those injured by the defective condition” (id., at 463). In rejecting the city’s contention that it should have full recovery from the abutting owner, we emphasized that the city was not "being compelled to pay for the wrong of another; it was simply being held liable for its own failure to exercise reasonable care” (id,., at 463). In D’Ambrosio, it must be noted, there was no contractual assumption of full responsibility for maintaining the instrumentality as in Rogers.

Here, the liability of Village East is not derivative (cf., Riviello v Waldron, 47 NY2d 297, 306, supra). The award of damages does not depend solely on the negligent act or omission of another (cf., Rogers v Dorchester Assocs., supra, at 563). On the contrary, Village East is held responsible for failure to perform a duty owed directly by it to plaintiff — a duty to remedy the defect, something it was permitted to do under the lease and obliged to do under the Administrative Code. Indeed, it is only because of the existence of this direct duty that Village East, as owner out of possession, is responsible. (See discussion of Worth Distribs. v Latham and Tkach v Montefiore Hosp., part II, supra.) Unlike the maintenance contract between the owner and Otis in Rogers, the lease between Village East and Daitch did not totally divest Village East of control over or responsibility for repairs and maintenance. The lease specifically reserved the right to inspect the premises and to make repairs at tenant’s expense, if needed, and it is on the basis of this retention of control and responsibility that Village East has been held liable for breach of a duty owed directly to plaintiff. Under these circumstances, contribution and not common-law indemnity is the applicable rule (D’Ambrosio v City of New York, 55 NY2d 454, 463, supra; see, Trustees of Columbia Univ. v Mitchell/Giurgola Assocs., 109 AD2d 449, 453; County of Westchester v Becket Assocs., 102 AD2d 34, 45-48; Prosser and Keeton, Torts § 51, at 341).

The order of the Appellate Division should be affirmed, with costs.

Chief Judge Wachtler and Judges Simons, Kaye, Titone and Bellacosa concur; Judge Alexander taking no part.

Order affirmed, with costs.

      .Plaintiff’s complaint against Haven Plaza Housing Development Fund Co., Inc., an owner of part of the building, was dismissed on the ground that Haven Plaza did not own the property on which the accident occurred.

      .Other terms in the lease under which the owner retained some measure of control over and responsibility for the premises are landlord’s "right at any time * * * to change the arrangement and/or location of * * * stairs”, and its duty to keep "all structural portions of the building in good condition.”

      .The Administrative Code is a codification and restatement of applicable "statutes and laws, general, special and local” (Administrative Code former § 1-0.0). The sections of the Code pertinent to this appeal are found in "Part II, Building Code” (now § 27-101 et seq.). In Hart v City Theatres Co. (215 NY 322, 326) it was held that the "Building Code [of the Administrative Code] has all the force of a statute in the city of New York” (see, Phelan v Yellin, 122 Misc 2d 807; Bressler v Amsterdam Operating Corp., 194 Misc 76, 79).

      .Village East contends that the New York City Administrative Code has only the force of an ordinance and that absent a duty imposed by statute there would be no liability under Putnam v Stout (38 NY2d 607). Because the Administrative Code provisions have the force of a statute, the controlling decisions are Worth Distribs. v Latham (59 NY2d 231) and Tkach v Montefiore Hosp. (289 NY 387). We do not reach the question whether, absent a duty imposed by statute, there would be a sufficient retention of control for liability (see, Putnam v Stout, supra, at 614, n 4; Howell v Gagliano, 52 AD2d 1040).

      .While ordinarily contribution rights arise when damages are sought to be apportioned among tort-feasors each of whom owes a duty directly to the injured party, this is not invariably so. In the unusual case the right to apportionment may arise from the duty owed from the contributing party to the party seeking contribution (see, e.g., Garrett v Holiday Inns, 58 NY2d 253, 258-263; Nolechek v Gesuale, 46 NY2d 332, 338, 341).


author: Per Curiam.

text:
    In the Matter of the Estate of A. Graham Thomson, Deceased, et al., Appellants, v Judith A. Wade, Respondent.
    Argued April 24, 1987;
    decided May 28, 1987

      POINTS OF COUNSEL

      Ronald C. Berger, Charles T. Major and Maura A. Flood for appellants.

      Lawrence Katzman for respondent.
   OPINION OF THE COURT

Per Curiam.

Plaintiff, executrix of the estate of A. Graham Thomson, and defendant, Judith Wade, own adjoining parcels of land on the St. Lawrence River in the Village of Alexandria Bay. Plaintiff’s property, on which a motel has been built, is known as the annex parcel and fronts on the river. Defendant owns the unimproved inland parcel, which is adjacent to plaintiff’s and borders the public road. Plaintiff claims an easement over defendant’s parcel to the public road. Both parcels were previously owned by Edward John Noble, who, in 1945, separately conveyed them to different parties. Although Noble had always used defendant’s parcel to gain access to the public road from the annex parcel, in transferring the annex parcel to plaintiff’s predecessor-in-interest, he did not convey an express easement appurtenant over defendant’s parcel for the benefit of the annex parcel. When Noble subsequently conveyed defendant’s parcel to defendant’s predecessor-in-interest, however, he "excepted and reserved” to himself personally, and to plaintiff’s predecessor-in-interest, a right-of-way across defendant’s parcel. In the ensuing years, members of the public generally, and the various owners of the annex parcel, including plaintiff who purchased the parcel in 1954, used this right-of-way over defendant’s land to reach the public road or the waterfront. When, in 1978, plaintiff erected a 50-room motel on the annex parcel, threatening an increase in traffic across defendant’s property, defendant immediately sought to bar plaintiff’s use of her property to benefit the annex parcel. Plaintiff thereafter acquired from Noble’s successor-in-interest, the Noble Foundation, a quitclaim deed to the right-of-way over defendant’s property that Noble had reserved to himself.

In this declaratory judgment action, plaintiff claims title to an easement over defendant’s property by express grant, relying not on its own deed to the annex parcel, but on the purported intent of Noble that the annex parcel benefit from an easement over defendant’s property, as evidenced by his conveyance of defendant’s parcel subject to a right-of-way in himself and in plaintiff’s predecessor-in-interest. Plaintiff also relies on the express conveyance of Noble’s personal right-of-way in the quitclaim deed from the Noble Foundation. The Appellate Division concluded that no express easement was created here. We agree.

It is axiomatic that Noble could not create an easement benefiting land which he did not own (see, 3 Powell, Real Property, Easements by Express Conveyance, f 407). Thus, having already conveyed the annex parcel, he could not "reserve” in the deed to defendant’s predecessor-in-interest an easement appurtenant to the annex parcel for the benefit of plaintiff’s predecessor-in-interest. The long-accepted rule in this State holds that a deed with a reservation or exception by the grantor in favor of a third party, a so-called "stranger to the deed”, does not create a valid interest in favor of that third party (see, Tuscarora Club v Brown, 215 NY 543; Beardslee v New Berlin Light & Power Co., 207 NY 34, 39; see generally, 3 Powell, Real Property, Easements by Express Conveyance, If 407; 2 Warren’s Weed, New York Real Property, Easements § 4.02 [4th ed]). Plaintiff invites us to abandon this rule and adopt the minority view which would recognize an interest reserved or excepted in favor of a stranger to the deed, if such was the clearly discernible intent of the grantor (see, e.g., Willard v First Church of Christ, 7 Cal 3d 473, 476-479, 498 P2d 987; Townsend v Cable, 378 SW2d 806 [Ky]; Medhus v Dutter, 184 Mont 437, 444, 603 P2d 669; Restatement of Property § 472, comment [b]).

Although application of the stranger-to-the-deed rule may, at times, frustrate a grantor’s intent, any such frustration can readily be avoided by the direct conveyance of an easement of record from the grantor to the third party. The overriding considerations of the "public policy favoring certainty in title to real property, both to protect bona fide purchasers and to avoid conflicts of ownership, which may engender needless litigation” (Matter of Violi, 65 NY2d 392, 396), persuade us to decline to depart from our settled rule. We have previously noted that in this area of law, "where it can reasonably be assumed that settled rules are necessary and necessarily relied upon, stability and adherence to precedent are generally more important than a better or even a 'correct’ rule of law” (Matter of Eckart, 39 NY2d 493, 500). Consequently, we hold here that any right-of-way reserved to plaintiff’s predecessor-in-interest in the defendant’s deed was ineffective to create an express easement in plaintiff’s favor.

Additionally, inasmuch as the right-of-way reserved to Noble personally was not shown to be commercial in nature, the Appellate Division correctly determined that it could not be transferred to plaintiff in the quitclaim deed by the Noble Foundation (see, Saratoga State Waters Corp. v Pratt, 227 NY 429, 443). Thus, neither the reservation of an easement in gross in Noble, nor the reservation of a right-of-way in plaintiff’s predecessor-in-interest, entitles plaintiff to an express easement across defendant’s property.

We have examined plaintiff’s remaining contentions and find them to be without merit.

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

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

Order affirmed, with costs.


author: Bellacosa, J.

text:
    City of New York, Appellant, v American School Publications, Inc., et al., Respondents.
    Argued April 30, 1987;
    decided June 2, 1987

      POINTS OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Paul T. Rephen, Leonard Koerner, Jeffrey D. Friedlander and Joan R. Schafrann of counsel), for appellant.

      Howard J. Rubin, Marlene L. Glazer and Janet B. Linn for respondents.

      Arthur N. Eisenberg for New York Civil Liberties Union, amicus curiae.

   OPINION OF THE COURT

Bellacosa, J.

We conclude that it would be a violation of the First Amendment of the United States Constitution to allow the City of New York, in the absence of local ordinance or regulation, to invoke judicial enforcement of its efforts to clear the City’s sidewalks of defendants’ bins installed for distribution of a free publication called The Learning Annex Magazine, whether the magazine is categorized as commercial or noncommercial speech. The denial of relief by the lower courts to the City should be affirmed.

Defendant The Learning Annex, Inc. offers short nonaccredited courses in the New York City area. Defendant American School Publications, Inc. is a wholly owned subsidiary of The Learning Annex, Inc. and publishes The Learning Annex Magazine, which the defendants distribute free of charge by way of metal bins placed on the sidewalks of New York City.

The City of New York allows other publications, among them City Business, Investor’s Daily, The Daily News, The New York Times, USA Today and The Wall Street Journal, to set up similar but coin-operated newspaper vending machines on the sidewalks. The City has no ordinance or regulation governing the placement of any of these bins.

When distribution of a publication by use of street bins was desired, a publisher generally sent a copy of the publication to the office of the Corporation Counsel. A municipal attorney would then determine, based on a personal assessment of the material in question, whether the publication was suitable for distribution through these bins. If the attorney deemed the publication appropriate, the law department would provide an "Agreement of Principles to Guide Placement of Newspaper Vending Machines on City Streets” (the standard agreement) containing guidelines and restrictions on the installation and maintenance of the bins.

In October 1984, the defendants contacted the City to obtain permission to install bins for the dissemination of their publication. In response, an attorney from the Corporation Counsel’s office forwarded a copy of the standard agreement and requested a copy of The Learning Annex publication. At that time, the pamphlet simply listed the courses offered by The Learning Annex, Inc. and included information such as course times and fees. Upon review of the pamphlet, the law department informed The Learning Annex that its publication was "mere advertisement” and was not suitable for dissemination through street bins. The defendants sought the City’s advice on how to modify the publication to overcome the City’s objections. The law department refused assistance.

In May 1985, The Learning Annex again contacted the Corporation Counsel’s office — this time with a modified publication designed to gain the City’s approval. The Learning Annex Magazine not only listed course offerings, but also included articles and short stories, some of which related to Learning Annex courses and others that did not. The pamphlet also contained some commercial advertisement not related to The Learning Annex. Along with the "magazine”, the defendants sent the City an executed copy of the standard agreement form and a letter from the defendants informing the City of their intention to begin installation of bins on the City sidewalks.

In an effort to implement the installation agreement, The Learning Annex tried to meet with representatives of the Corporation Counsel’s office. The City declined a meeting, stating that the matter was under review. Having received no response from the City, the defendants began to place bins on the City’s sidewalks. The bins are rectangular white metal boxes which stand three feet high with The Learning Annex logo embossed on the front. Unlike other newsboxes located on the City’s sidewalks, The Learning Annex bins are not coin operated. According to a street survey conducted by the law department, the defendants had installed approximately 220 bins. Some of the bins were placed at bus stops, others near crosswalks, and some were blocking fire hydrants. Many of the bins were quickly depleted of their contents and some of the empty bins were converted into trash receptacles by passersby.

The City commenced the instant action, contending that the bins are unsightly, unsanitary and even unsafe; seeking injunctive relief restraining The Learning Annex from installing any more bins; and directing that the existing ones be removed. The Learning Annex cross-moved for summary judgment.

Supreme Court viewed the defendants’ attempt to modify its publication as "a mere sham to convert a pure advertising leaflet into non-commercial speech”, but nonetheless concluded that the City’s lack of a narrowly drawn statute or regulation governing the installation of the bins rendered the City’s action constitutionally impermissible.

The Appellate Division unanimously affirmed, noting again that the City’s action was taken without the benefit of any statute or regulation narrowly drawn or otherwise, and that "[i]n the absence of an appropriately drawn statute * * * the city must allow all applicants equal access to the sidewalks or none at all” (119 AD2d 13, 20). The Appellate Division, however, held the publication was protected as noncommercial speech (id,., at 18, 19).

The City argues that the pamphlets distributed by the defendants are commercial speech and that the City’s decision to prohibit their dissemination through sidewalk bins fully comports with the constitutional requirements governing the regulation of commercial speech. In short, the City urges that it bans distribution of all commercial speech by way of sidewalk bins and this serves the City’s interest in maintaining the appearance and safety of City sidewalks. The City also contends that the bins constitute a common-law trespass and the City may properly insist on removal because defendants have no constitutional or statutory right to install them.

The City’s arguments miss its central handicap in this case —a government official or employee may not exercise complete and unregulated discretion, in the absence of duly enacted guidelines or procedures, to decide which publications may be distributed via bins installed on City streets. We agree that the City may regulate the installation of bins on its sidewalks, but it must do so by properly drawn regulations synchronizing the City’s right to maintain health and safety with First Amendment speech and press freedoms.

First Amendment guarantees have been extended to the means of distributing a newspaper, as well as to content: The " '[ljiberty of circulating is as essential to [First Amendment] freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value’ ” (Lovell v City of Griffin, 303 US 444, 452). Moreover, the right of access to public streets and sidewalks, subject to appropriate regulation, is essential to the exercise of First Amendment freedom (Hague v C. I. O., 307 US 496), and the right of access includes the right to distribute printed materials (Flower v United States, 407 US 197).

First Amendment protection, however, does not exempt newspaper or magazine dispensing bins from all governmental regulation. The Constitution does not guarantee the right to communicate views at all times, in all places or in any manner that an individual desires (Heffron v International Socy. for Krishna Consciousness, 452 US 640, 647). Newsbins, like billboards and many other means of communication, involve both communicative and noncommunicative aspects (Metromedia, Inc. v City of San Diego, 453 US 490, 502). While the government may have a legitimate interest in regulating the noncommunicative aspects of the medium, it also is restricted from interfering with the communicative aspects. Government is compelled, therefore, to reconcile its regulatory interest with the First Amendment interest at stake (id., at 502).

The Constitution recognizes a municipality’s interest under the police power to ensure the safe and reasonably smooth flow of pedestrian movement on its streets and even the effort at relative cleanliness of its streets. However, First Amendment freedoms are implicated in the recognition of those interests. In order to exert its police power and to restrict access to a public forum, a municipality must adopt reasonable regulations governing the time, place and manner of expression. The regulations must be content neutral, sensitively calibrated to the governmental interest at stake, and must also leave open alternative channels of communication (Heffron v International Socy. for Krishna Consciousness, 452 US 640, supra; see also, Shuttlesworth v City of Birmingham, 394 US 147). They must be publicly promulgated upon being duly enacted.

In this case, the City’s action against defendants was taken without the benefit of any regulation. The decision to deny defendants use of bins for distribution was made presumably on the private criteria of a subordinate attorney of the City Law Department. The Corporation Counsel’s office offered no guidelines on how to gain governmental approval and on what or whose criteria the government’s decision was based. In any event, the Corporation Counsel has no authority to originate such a policy. The City Council is the proper legislative body of the City of New York in this substantive area (NY City Charter § 27 [d]) and the Board of Estimate holds the exclusive implementing authority with respect to the use of City property (NY City Charter § 67 [1]; § 362).

For the City to have acted with such "arbitrary discretion vested in some governmental authority” is "inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view” (Heffron v International Socy. for Krishna Consciousness, 452 US 640, 649, supra). "When a city allows an official to ban [a means of communication] in his uncontrolled discretion, it sanctions a device for suppression of free communication of ideas” (Saia v New York, 334 US 558). The constitutional infirmity inherent in such discretion is intolerable and foreboding in its implications.

Based on this evidentiary record, the City of New York is not entitled to judicial relief against defendants’ form of distribution of its publication. On the contrary, the Constitution affords special protections to speech and the press which the City, to the extent permissible, has not properly regulated.

If the City wants to restrict defendants’ activities, it will have to enact a proper ordinance or regulation which passes constitutional muster. The City may ultimately choose to distinguish between commercial and noncommercial speech if it does regulate the installation of sidewalk bins, and its choice would not in and of itself offend the "content neutrality” requirement (Matter of von Wiegen, 63 NY2d 163, cert denied sub nom. Committee on Professional Stds. v Von Wiegen, 472 US 1007; Bolger v Youngs Drug Prods. Corp., 463 US 60; Central Hudson Gas & Elec, v Public Serv. Commn., 447 US 557; Ohralik v Ohio State Bar Assn., 436 US 447).

Our holding does not require that we determine whether The Learning Annex Magazine is commercial or noncommercial speech, even though the lower courts have differed in this respect. Whichever it is, the City has utterly failed to provide a constitutional regulatory framework.

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

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

Order affirmed, with costs.


author: Kaye, J.

text:
    The People of the State of New York, Respondent, v James Owens, Appellant. The People of the State of New York, Respondent, v Bradford Boon, Appellant.
    Argued April 22, 1987;
    decided June 2, 1987

      POINTS OF COUNSEL

      Ellen L. Schütz and Philip L. Weinstein for appellant in the first above-entitled action.

      Robert M. Morgenthau, District Attorney (Laura Johnson and Amyjane Rettew of counsel), for respondent in the first above-entitled action.

      Barry S. Stendig and Philip L. Weinstein for appellant in the second above-entitled action.

      Robert M. Morgenthau, District Attorney (Joyce P. Adolf sen and Amyjane Rettew of counsel), for respondent in the second above-entitled action.
   OPINION OF THE COURT

Kaye, J.

Where defense counsel objects, it is improper for a trial court, after reciting its instructions orally, to distribute only certain portions of that charge in writing to the jury for use in its deliberations. In. each case before us, where excerpts from the charge were handed out to the jury over defendant’s objection, the conviction must be reversed and a new trial ordered.

People v Owens

Following an incident in which an undercover officer allegedly purchased cocaine from him, defendant James Owens was tried for the criminal possession and sale of a controlled substance. According to the officer, when he approached defendant to buy cocaine, defendant answered that "they were doing it at the El Calypso” and that he would get some there. The officer told defendant that he wanted to buy $20 worth of cocaine but preferred not to give defendant the money up front. After agreeing to advance the money himself, defendant crossed to the El Calypso and returned with two glassine envelopes containing cocaine. The officer gave him $20 in "buy money” and an unsolicited $2 tip.

At trial, defendant raised the defense of agency, contending that he was not guilty of selling a controlled substance, or possessing it with intent to sell, because he acted solely upon the request, and as the agent, of the officer. The only precharge colloquy concerned the form of the agency instruction the court would give. In its instructions read aloud to the jury, the court gave an extensive charge with respect to the agency defense, to which defendant raised no objection.

Controversy erupted, however, when the court announced that it intended to furnish the jurors with a copy of its instructions solely on the elements of the three crimes charged. Defense counsel stated his belief that submitting written instructions to the jury was a "good principle”, but he objected to the submission here because of the court’s refusal to add "perhaps the most important instruction, the agency charge.” The court nonetheless distributed to the jury a five-page document, containing its oral instructions on the elements of each count of the indictment. The court informed the jurors that they were being given "copies of the law of the case, the statutory law of the case,” containing "each and every element of the crimes charged against this defendant to aid you in your deliberations.” The jury found defendant guilty on all three counts, and the Appellate Division affirmed, without opinion.

People v Boon

After they saw defendant Bradford Boon and his codefendant (Leonard Harris) standing in front of the complainant, going through his pockets, two plainclothes police officers arrested both Boon and Harris. Each was charged with two counts of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [1], [2] [b]). At trial, defendant’s counsel argued that the encounter was not an attempted robbery, and that at all events defendant did not share any intent his codefendant may have had to commit robbery.

At the conclusion of the trial the court read its charge aloud, and then announced that it would distribute to each juror a document consisting of portions of the oral instructions pertaining to the definitions and elements of accessorial liability (Penal Law § 20.00), attempt (Penal Law § 110.00) and robbery in the second degree (Penal Law § 160.10 [1]). The court informed the jury that this document was "the law of the case which contains the elements of the crime”, to aid in its deliberations. Defense counsel objected "on the ground that it highlights certain aspects of the charge particularly acting in concert, leaving out others and, therefore, I believe that it would be prejudicial to the defendant in that they should not be given written instructions on it, just portions of the charge.” The jury found defendant guilty of one count of attempted robbery in the second degree (the other count was dismissed), and the Appellate Division affirmed, without opinion.

We now reverse in both cases.

Discussion

"The court’s charge is of supreme importance to the accused. It should be the safeguard of fairness and impartiality and the guarantee of judicial indifference to individuals” (People v Odell, 230 NY 481, 487). Because of the singular importance of jury instructions in criminal trials, a charge error may well result in the deprivation of a fair trial and consequent reversal of the conviction. Thus, while the objectives of enhancing jury understanding and facilitating deliberations are surely laudable, jury instructions generally are not fertile ground for innovation during trial, particularly when defendant objects (contrast, People v Monat, 200 NY 308, 312-313).

The Criminal Procedure Law is silent as to the submission of the court’s instructions in writing. Not without pertinence, however, are the statutory protections relating to other materials that may be furnished to jurors at the critical time of their deliberations.

Exhibits in evidence may in the court’s discretion be taken into the jury room, but only after the parties are accorded an opportunity to be heard on the matter (CPL 310.20 [1]; see, Bellacosa, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 310.20, at 652, referring to a "triple whammy of protection”). Similarly, jurors may be furnished verdict sheets setting out the submitted offenses and possible verdicts (CPL 310.20 [2]), but care must be taken by the court in preparing such lists to avoid any unfairness or suggestiveness (see, People v Piazza, 48 NY2d 151, 165). A jury’s request for further instruction or information requires that the jury be returned to the courtroom, that notice be given to both sides, and that such requested information or instruction as the court deems proper be transmitted in the presence of the defendant (CPL 310.30; see, People v Mehmedi, 69 NY2d 759). Finally, as the result of a provision added to the Criminal Procedure Law in 1980 (L 1980, ch 208), when jurors seek further instruction as to a statute, the court in its discretion may also furnish them with copies of the actual text, but only "[w]ith the consent of the parties” (CPL 310.30); the consent of the parties was made an absolute precondition because "questions may arise concerning which sections of pertinent statutory material should be given to the jury”. (Mem of Office of Court Administration, 1980 McKinney’s Session Laws of NY, at 1967.) Thus, even where only the text of a statute is in issue, "the danger of sending in some portion of a statute or a full statute without others and creating a prejudicial contextual setting is extreme”. (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 310.30, at 656.)

Just such danger and prejudice are threatened where, as here, portions of the oral instructions are submitted in writing. Not unlike the submission of the text of a statute to the jury (CPL 310.30), when portions of the charge are distributed, questions may arise concerning which portions should be given to the jury. As defense counsel in both cases convincingly urge, submission of only a portion of a charge — particularly in the absence of any request from the jury for further instruction — creates a risk that the jury will perceive the writing as embodying the more important instructions, inviting greater attention to the principles that are repeated in writing than those simply recited orally (see, People v Townsend, 67 NY2d 815, 817). Such a risk flows from at least three sources. First, the fact that the trial court has selected certain portions of its charge may itself convey the message that these are of particular importance. Second, the very repetition of parts of the charge may serve to emphasize them and subordinate the others. Finally, the written instructions may be reinforced by their physical presence in the jury room, as the oral instructions fade from memory. We can see no legitimate basis for distributing only parts of a charge over defendant’s objection — especially where the parts that are excluded are those that might be considered favorable to the defense — and therefore conclude that it is error to do so.

In both Owens and Boon, the document handed to the jury contained only isolated portions of the oral charge. In Owens, the court elected to submit only the elements of the crimes charged and relevant statutory definitions, but no reference to the agency defense. In Boon, the writing similarly set forth the elements of the crimes and relevant definitions, but not the portions of the charge pertaining to the presumption of innocence or reasonable doubt. Thus, in both cases, the submission created the potential for prejudice by inviting the jury to place undue emphasis on those matters contained in the written submission, subordinating those portions of the charge —favorable to the defense — contained in the oral charge, and error was committed.

Having deprived each of the defendants of a fair trial, such error cannot be considered harmless (People v Crimmins, 36 NY2d 230, 238; see, People v Vincenty, 68 NY2d 899; People v Townsend, 67 NY2d 815, 817, supra). We reject the People’s contention that errors in the submission of final written instructions are akin to unbalanced marshaling of evidence (People v Culhane, 45 NY2d 757) and therefore subject to harmless error analysis. Unlike the marshaling of evidence— which is statutorily authorized (CPL 300.10 [2]), and constitutes error only when an imbalance results in prejudice to defendant (see, People v Culhane, 45 NY2d 757, 758, supra)— the distribution of written instructions to the jury is not expressly authorized by law, and error in such submissions cannot be deemed harmless.

In view of the disposition reached, requiring a new trial, we do not consider the additional trial error alleged by defendant Boon.

Accordingly, in each case, the order of the Appellate Division should be reversed and a new trial ordered.

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

In each case: Order reversed, etc.

      We need not, and do not, consider whether, over defendant’s objection, it is permissible to give the jury a copy of the full charge (see, Sand & Reiss, A Report of Seven Experiments Conducted by District Court Judges in the Second Circuit, 60 NYU L Rev 423, 453).