text:
    [663 NE2d 302, 639 NYS2d 990]
    In the Matter of Encore College Bookstores, Inc., Appellant, v Auxiliary Service Corporation of the State University of New York at Farmingdale et al., Respondents.
    Argued November 28,1995;
    decided December 27, 1995

      POINTS OF COUNSEL

      Joseph A. Faraldo, Kew Gardens, for appellant.
    I. A demurrer ought not be sufficient to thwart a Freedom of Information Law (FOIL) request where a State function is performed. (State Univ. v Syracuse Univ., 285 App Div 59; Matter of Canfield, 126 Misc 2d 900; Matter of Ahlers v Dillon, 143 AD2d 225; Matter of Gannett Co. v County of Monroe, 59 AD2d 309, 45 NY2d 954; Matter of New York Teachers Pension Assn. v Teachers’ Retirement Sys., 71 AD2d 250; Matter of Kryston v Board of Educ., 77 AD2d 896; Matter of Brownstone Publs. v New York City Dept. of Bldgs., 166 AD2d 294; Matter of Russo v Nassau County Community Coll., 81 NY2d 690.) II. Respondent, Auxiliary Service Corporation (ASC), is an agent and/or servant of SUNY or is its alter ego for purposes of this special proceeding. (Matter of Fink v Cole, 302 NY 216; Murtha v Monaghan, 4 NY2d 897; 8200 Realty Corp. v Lindsay, 27 NY2d 124; Burton v Wilmington Parking Auth., 365 US 715; Jackson v Metropolitan Edison Co., 419 US 345; Memphis Light, Gas & Water Div. v Craft, 436 US 1; Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575; Matter of Xerox Corp. v Town of Webster, 65 NY2d 131; Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488; Matter of Capital Newspapers v Whalen, 69 NY2d 246.) III. The information requested does not fall within a specific exemption under the Public Officers Law. (Eagle Comtronics v Pico, Inc., 89 AD2d 803, 58 NY2d 547; Matter of Ragusa v New York State Dept. of Law, 152 Misc 2d 602; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; Matter of Belth v Insurance Dept., 95 Misc 2d 18; Matter of Professional Stds. Review Council v New York State Dept. of Health, 193 AD2d 937; Matter of Murray v Troy Urban Renewal Agency, 56 NY2d 888; Matter of Zuckerman v New York State Bd. of Parole, 53 AD2d 405; Matter of Fink v Lefkowitz, 47 NY2d 567.)

      Robinson Silverman Pearce Aronsohn & Berman, New York City (Suzanne M. Berger and James M. Altman of counsel), for Auxiliary Service Corporation of the State University of New York a.t Farmingdale, respondent.
    I. The booklists are exempt from disclosure under the FOIL (Public Officers Law § 87 [2] [d]) because the information is obtained from a private commercial enterprise and disclosure to its competitor would result in a substantial injury to that enterprise’s competitive position. (Public Citizen Health Research Group v Food & Drug Admin., 704 F2d 1280; Calhoun v Lyng, 864 F2d 34; Worthington Compressors v Costle, 662 F2d 45; Smirlock Realty Corp. v Title Guar. Co., 63 NY2d 955; Brown Shoe Co. v United States, 370 US 294; Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Doolan v Board of Coop. Educ. Servs., 48 NY2d 341; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; Matter of Ragusa v New York State Dept. of Law, 152 Misc 2d 602.) II. The material requested is also exempt from disclosure pursuant to FOIL (Public Officers Law § 87 [2] [c]) because disclosure impairs ASC’s contractual relationship with Barnes & Noble. III. ASC is not an agency under FOIL and is not required to produce information to Encore. (Matter of Faculty Student Assn. v Ross, 54 NY2d 460; Matter of Organization of Ancillary Servs. [Hartnett], 152 AD2d 777; Matter of Consolidated Edison Co. v Insurance Dept., 140 Misc 2d 969; Matter of Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488; Matter of American Socy. for Prevention of Cruelty to Animals v Board of Trustees, 165 AD2d 561; Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575; Matter of Ryan v Mastic Volunteer Ambulance Co., 212 AD2d 716; Matter of Russo v Nassau County Community Coll., 81 NY2d 690; Forsham v Harris, 445 US 169; Department of Justice v Tax Analysts, 492 US 136.) IV. Even if ASC were an agency subject to FOIL and the information were not exempt, Encore nevertheless has failed to pursue its administrative remedies.
      (Moussa v State of New York, 91 AD2d 863; Matter of Murphy v New York State Educ. Dept., 148 AD2d 160.)

      Dennis C. Vacco, Attorney-General, New York City (John P. Dellera, Victoria A. Graffeo and Peter H. Schiff of counsel), for State University of New York at Farmingdale, respondent.
    Since SUNY at Farmingdale does not possess the requested records, it cannot be compelled to produce them. (Matter of Capital Newspapers v Burns, 67 NY2d 562; Matter of Legal Aid Socy. v New York State Dept. of Social Servs., 195 AD2d 150; Matter of Guerrier v Hernandez-Cuebas, 165 AD2d 218, 78 NY2d 853; Matter of Gannett Co. v James, 86 AD2d 744, 56 NY2d 502; Forsham v Harris, 445 US 169; Department of Justice v Tax Analysts, 492 US 136; Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; Matter of Capital Newspapers v Whalen, 69 NY2d 246; Matter of Russo v Nassau County Community Coll., 81 NY2d 690.)
   OPINION OF THE COURT

Chief Judge Kaye.

This appeal presents two questions regarding the Freedom of Information Law (FOIL): first, does material received by a corporation providing services for a State university and kept on behalf of the university constitute a "record” that is presumptively discoverable under FOIL; and second, when does disclosure of information obtained from a commercial enterprise fall within the FOIL exemption for commercial information (Public Officers Law § 87 [2] [d])? We conclude, here, that the material constituted a record subject to disclosure under FOIL but exempt because release of the information sought by petitioner would cause substantial injury to its competitor.

I.

The principal business of petitioner Encore College Bookstores, Inc. is the acquisition, collection and sale of college textbooks and other learning-related materials. Encore operates a bookstore near the Farmingdale campus of respondent State University of New York (SUNY), a public university established pursuant to Education Law § 352.

Respondent Auxiliary Service Corporation of the State University of New York Agricultural and Technical College at Farmingdale (ASC) is a not-for-profit corporation created in 1954. According to ASC’s bylaws, its general purpose is "to establish, operate, manage and promote educationally related services for the benefit of the [SUNY] Campus Community, including faculty, staff and students in harmony with the educational mission and goals of the College.” As explained in ASC’s agreement with SUNY, the university "requires certain auxiliary services at the Campus in order to carry out its essential educational mission,” and ASC "has been organized for the purpose of providing such services.”

Among the services ASC is charged with furnishing for SUNY is a campus bookstore, which ASC provides through a subcontractor. The Request for Proposals circulated by ASC to prospective subcontractors in March 1992 obligated the successful bidder to stock all required, recommended and suggested course books designated by SUNY faculty in sufficient quantity to meet student needs. SUNY agreed to provide the subcontractor with the necessary data, such as course numbers, section numbers and enrollment figures, and the subcontractor agreed to provide ASC with three lists of all faculty book orders. Barnes & Noble Bookstores, Inc. was the successful bidder for the campus bookstore subcontract.

In order to ensure that the bookstore had a complete inventory of the textbooks needed for the upcoming semester, Barnes & Noble sent each faculty member a purchase order form on which they listed the desired books. Two copies of the completed form were returned to Barnes & Noble, and the third was sent to ASC so that it could monitor the subcontractor’s compliance with the agreement. When problems with availability arose or faculty failed to respond to this initial inquiry, Barnes & Noble store managers followed up by letter, telephone or in person. Neither SUNY nor ASC maintains any policy precluding other persons from acquiring the textbook information directly from SUNY faculty.

In November 1992, Encore served SUNY with a FOIL request seeking disclosure of the booklist compiled by Barnes & Noble for the 1993 spring semester. At that time, it was the practice of Barnes & Noble to forward one copy of the booklist to the head of each department. When SUNY denied the request, Encore commenced a CPLR article 78 proceeding. SUNY then produced the list pursuant to a stipulation, and Encore discontinued its proceeding.

Soon thereafter, Barnes & Noble changed its practice of sending SUNY a copy of the booklist, and faculty members stopped forwarding one copy of the purchase order forms to the university. Barnes & Noble asserted that its campus bookstore had suffered a decrease in sales revenue following disclosure of the spring semester booklist to Encore, and the purpose of the change was to protect the information from disclosure under FOIL.

In the spring of 1993, Encore filed a second FOIL request, this time for the 1993 fall semester booklist. SUNY denied the request, explaining that it no longer had input into the process of collecting the solicited information or received copies of the book requisition forms.

Encore then commenced the instant article 78 proceeding against respondents SUNY and ASC by order to show cause, seeking disclosure of information regarding the books to be used in each department or college for the 1993 fall semester. The trial court dismissed the petition, finding first that SU-NY’s lack of involvement in gathering the requested information released it from any obligation to produce the information under FOIL, and second that the information was exempt from disclosure by ASC because its release would impair current contract awards (Public Officers Law § 87 [2] [c]). The Appellate Division affirmed. It too held that SUNY was not obligated under FOIL to produce material neither created by it nor within its possession and control and additionally that, assuming ASC was subject to FOIL, the information was exempt because disclosure would cause substantial injury to the competitive position of Barnes & Noble (Public Officers Law § 87 [2] [d]). We agree with the latter conclusion and affirm as to ASC on that ground. We nevertheless grant the petition as to SUNY, because the university has not independently raised the exemption before this Court.

II.

The purpose of FOIL, found in article 6 of the Public Officers Law, is to shed light on government decision making, which in turn both permits the electorate to make informed choices regarding governmental activities and facilitates exposure of waste, negligence and abuse (see, Public Officers Law § 84; Matter of Fink v Lefkowitz, 47 NY2d 567, 571). In furtherance of this objective, the Legislature in 1977 restructured article 6, imposing a broad standard of open disclosure in order to achieve maximum public access to government documents (L 1977, ch 933).

Unlike the prior statute, which listed discrete categories of information open to the public (see, Public Officers Law former § 88 [repealed by L 1977, ch 933,1]), FOIL now mandates that "[e]ach agency shall * * * make available for public inspection and copying all records,” unless the records fall within a statutory exemption (Public Officers Law § 87 [2] [emphasis added]). The Legislature also added a definition of "records” that implements the policy favoring disclosure and makes "the vast majority of requested documents presumptively discoverable” (Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 564). "Records” include "any information kept, held, filed, produced or reproduced by, with or for an agency” (Public Officers Law § 86 [4]). Significantly, this "very broad definition” is not limited by the purpose for which a document was originated or the function to which it relates (Washington Post Co. v New York State Ins. Dept., 61 NY2d at 564; Matter of Westchester Rockland Newspapers v Kimball, 50 NY2d 575, 581).

SUNY, a public university, clearly constitutes an "agency,” defined as "any * * * governmental entity performing a governmental or proprietary function for the state” (Public Officers Law § 86 [3]; see, Matter of Russo v Nassau County Community Coll., 81 NY2d 690, 698). We must therefore determine as a threshold matter whether the list sought by Encore is a "record” that SUNY must make available to the public. In doing so, we are mindful that FOIL itself is to be read liberally and its exemptions read narrowly (id., at 697).

In order to fulfill its educational mission, SUNY must provide certain auxiliary services to its campus community. As set forth unequivocally in ASC’s bylaws, the function of ASC is to supply these essential services — including the campus bookstore — for SUNY. ASC’s acts in discharging this delegated duty, then, are performed on SUNY’s behalf.

Because ASC receives a copy of the booklist compiled by its subcontractor, Barnes & Noble, to ensure that the campus bookstore is adequately maintained, it does so for the benefit of SUNY, a government agency. In other words, the booklist information is "kept” or "held” by ASC "for an agency” (Public Officers Law § 86 [4]). Thus, the information falls within the unambiguous definition of the term "records” under FOIL.

SUNY’s contention that disclosure turns solely on whether the requested information is in the physical possession of the agency ignores the plain language of FOIL defining "records” as information kept or held "by, with or for an agency” (Public Officers Law § 86 [4]). Where, as here, the literal language of a statute is precise and unambiguous, that language is determinative (Roth v Michelson, 55 NY2d 278; see also, Matter of Capital Newspapers v Whalen, 69 NY2d 246, 248 [giving words their natural and most obvious meaning in interpreting "records” under FOIL]).

SUNY’s reliance on cases interpreting the Federal disclosure statute is similarly misplaced. To be sure, New York’s Freedom of Information Law is patterned after the Federal Freedom of Information Act (FOIA), which requires production of "agency records” (see, 5 USC § 552; Matter of Fink v Lefkowitz, 47 NY2d at 572, n). FOIA, however, contains no definition of the term "records.” Thus, although the scope of "agency records” under FOIA has been limited by the courts to material (1) created or obtained by the agency, and (2) in the agency’s control (see, e.g., Department of Justice v Tax Analysts, 492 US 136, 144-145), this construction rested in part on the definition of "records” contained in two similar Federal statutes: The Records Disposal Act (defining "agency records” as documents "made or received by an agency” [44 USC § 3301]) and the Presidential Records Act of 1978 (defining "Presidential records” as material "created or received by the President” [44 USC § 2201 (2)]; see, Forsham v Harris, 445 US 169, 183). Manifestly, these definitions are far more circumscribed than the definition of "records” added to FOIL in 1977.

We therefore decline to adopt the narrow definition of "records” adopted by the Federal courts and applied here by the trial court and Appellate Division. To do so would undermine the legislative objective to provide maximum disclosure by enabling a government agency to insulate its records from public access by delegating responsibility for creating or maintaining particular information to a nongovernmental entity. Rather, we conclude that information kept or held for a government agency — such as the booklist sought by Encore — is within the embrace of FOIL’S "records.” Because SUNY has not claimed the benefit of any FOIL exemption, it must make the booklist available to Encore.

III.

Turning to ASC, we need not determine whether it constitutes an agent or alter ego of the university, since we conclude that ASC has sufficiently demonstrated that the information is exempt from disclosure (see, Matter of Russo v Nassau County Community Coll., 81 NY2d at 700).

ASC urges that, even if it is subject to FOIL, the information is shielded by the exemption set forth in section 87 (2) (d), which provides that an agency may deny access to records that "are * * * derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise” (Public Officers Law § 87 [2] [d]). It is undisputed that the book-list was compiled by and obtained from Barnes & Noble, a commercial enterprise. Consequently, the question before us is whether release of the information would cause "substantial injury to the competitive position” of Barnes & Noble.

FOIL fails to define substantial competitive injury. Nor has this Court previously interpreted the statutory phrase. FOIA, however, contains a similar exemption for "commercial or financial information obtained from a person and privileged or confidential” (see, 5 USC § 552 [b] [4]). Commercial information, moreover, is "confidential” if it would impair the government’s ability to obtain necessary information in the future or cause "substantial harm to the competitive position” of the person from whom the information was obtained (National Parks & Conservation Assn. v Morton, 498 F2d 765, 770 [DC Cir]; see also, CNA Fin. Corp. v Donovan, 830 F2d 1132, 1152, n 146 [DC Cir], cert denied 485 US 977 [noting congressional acquiescence to the National Parks standard]).

Notably, this Federal requirement of "substantial harm to the competitive position” of the submitting entity was already in place in 1977 when the Legislature incorporated the comparable condition of "substantial injury to the competitive position of the subject enterprise” into Public Officers Law § 87 (2) (d) (see, e.g., National Parks & Conservation Assn. v Morton, 498 F2d 765, supra). Furthermore, when it amended subdivision (2) (d) in 1990, the Legislature maintained the substantial competitive injury requirement (see, L 1990, ch 289). Indeed, the legislative history refers to the similarity between the FOIL exemption and the Federal exemption for commercial information (see, Mem of State Dept of Economic Development, 1990 McKinney’s Session Laws of NY, at 2411).

By utilizing and continuing language virtually identical to the analogous Federal exemption for commercial information, the Legislature has signalled its intent that the substantial competitive injury prong of the FOIL exemption be similar in scope to the substantial competitive harm prong of its Federal counterpart. We therefore look for guidance to Federal cases interpreting this requirement.

As established in Worthington Compressors v Costle (662 F2d 45, 51 [DC Cir]), whether "substantial competitive harm” exists for purposes of FOIA’s exemption for commercial information turns on the commercial value of the requested information to competitors and the cost of acquiring it through other means. Because the submitting business can suffer competitive harm only if the desired material has commercial value to its competitors, courts must consider how valuable the information will be to the competing business, as well as the resultant damage to the submitting enterprise. Where FOIA disclosure is the sole means by which competitors can obtain the requested information, the inquiry ends here.

Where, however, the material is available from other sources at little or no cost, its disclosure is unlikely to cause competitive damage to the submitting commercial enterprise. On the other hand, as explained in Worthington'.

"Because competition in business turns on the relative costs and opportunities faced by members of the same industry, there is a potential windfall for competitors to whom valuable information is released under FOIA. If those competitors are charged only minimal FOIA retrieval costs for the information, rather than the considerable costs of private reproduction, they may be getting quite a bargain. Such bargains could easily have competitive consequences not contemplated as part of FOIA’s principal aim of promoting openness in government” (id.).

The reasoning underlying these considerations is consistent with the policy behind subdivision (2) (d) — to protect businesses from the deleterious consequences of disclosing confidential commercial information, so as to further the State’s economic development efforts and attract business to New York (see, Mem of State Dept of Economic Development, op. cit., at 2412). The analogous Federal standard would advance these goals, and we adopt it as the test for determining whether "substantial injury to the competitive position of the subject enterprise” would ensue from disclosure of commercial information under FOIL.

Next applying that test to Encore’s request for the Barnes & Noble booklist, we conclude that the material was exempt from disclosure. Contrary to Encore’s contention, ASC was not required to establish actual competitive harm to Barnes & Noble. Rather, "[a]ctual competition and the likelihood of substantial competitive injury is all that need be shown” (Gulf & W. Indus. v United States, 615 F2d 527, 530 [DC Cir]).

Encore concedes that it wants the textbook information in order to sell the very same books to the very same SUNY students that patronize Barnes & Noble, its competitor. Likewise, the booklist has obvious commercial value to Encore since it would enable Encore to offer the precise inventory that its target clientele — SUNY-Farmingdale students — is required to purchase and that is currently offered by Barnes & Noble. The potential damage to Barnes & Noble as a result is the loss of student customers to its competitor and a corresponding loss of profits. Indeed, Barnes & Noble alleges that after providing the 1993 spring semester booklist to Encore the campus bookstore suffered a significant decrease in sales revenue (see, e.g., Continental Oil Co. v Federal Power Commn., 519 F2d 31, 35 [5th Cir] [relying on probability of damage from delivery of product marketing information to competitor]).

The likelihood of harm to Barnes & Noble is enhanced by the economic windfall conferred upon Encore were it to receive the booklist at the mere cost of FOIL fees. The information in the booklist, accumulated by virtue of the effort and expense of Barnes & Noble, is also directly available to Encore. Disclosure through FOIL, however, would enable Encore to obtain the requisite information without expending its resources, thereby reducing its cost of business and placing Barnes & Noble at a competitive disadvantage.

Because the likelihood of substantial competitive injury to Barnes & Noble from release of the textbook information to Encore is apparent, ASC has met its burden of establishing that the material falls "squarely within the ambit of one of [the] statutory exemptions” (Matter of Fink v Lefkowitz, 47 NY2d at 571). We therefore need not determine whether, as held by the trial court, the material was also exempt because its release would impair current contract awards (Public Officers Law § 87 [2] [c]).

Accordingly, the order of the Appellate Division should be modified in accordance with this opinion and, as so modified, affirmed, without costs.

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order modified, etc.

       Prior to 1990, FOIL exemption subdivision (2) (d) was expressly limited to information maintained for purposes of regulation which, if disclosed, would cause substantial competitive injury. The 1990 amendment broadened the exemption by eliminating the condition that the confidential commercial information be for regulatory purposes (see, L 1990, ch 289).


source: Caselaw Access Project

author: Bellacosa, J.

license: Public Domain

text:
    [663 NE2d 308, 639 NYS2d 996]
    The People of the State of New York, Respondent, v Ronald Colavito, Appellant.
    Argued January 2, 1996;
    decided February 8, 1996

      POINTS OF COUNSEL

      Jacobowitz & Gubits, Walden (Andrea D. Pawliczek of counsel), for appellant.
    I. Defendant’s right to a fair trial was violated by the introduction of physical evidence midtrial without prior disclosure to the defense. (People v Fein, 24 AD2d 32, 18 NY2d 162; People v Ciembroniewicz, 169 AD2d 929; People v Polanco, 174 AD2d 468, 78 NY2d 972; People v Copicotto, 50 NY2d 222; People v Crimmins, 36 NY2d 230; People v Hudy, 73 NY2d 40.) II. The People’s introduction of only two of the hundreds of money orders allegedly converted by defendant cause extreme prejudice. (People v Paterson, 73 AD2d 1048.) III. The court erred in permitting the People’s witnesses to testify concerning suppressed evidence and failing to offer a curative charge. (People v Hoke, 62 NY2d 1022; People v Jones, 81 AD2d 22.) IV. The cumulative effect of the errors committed by the court below denied defendant his right to a fair trial. (People v Williams, 140 AD2d 970, 73 NY2d 861.)

      Francis D. Phillips, II, District Attorney of Orange County, Goshen (Gerald D. D’Amelia, Jr., of counsel), for respondent.
    I. The trial court did not abuse its discretion by permitting the introduction of money orders and a judgment during the People’s direct case since defendant failed to demonstrate undue prejudice by their introduction. (People v Lewis, 69 NY2d 321; People v Hudy, 73 NY2d 40; People v Steinberg, 170 AD2d 50, 79 NY2d 673; People v Johnstone, 131 AD2d 782; People v Rosario, 124 AD2d 683; People v Williams, 195 AD2d 986; People v Poladian, 167 AD2d 912; People v Williams, 140 AD2d 970, 73 NY2d 861; People v Nelson, 144 AD2d 714; People v Kehn, 109 AD2d 912.) II. The trial court properly allowed the introduction of the two postal money orders. (People v Paterson, 73 AD2d 1048; People v Crimmins, 36 NY2d 230.) III. The testimony concerning the soap was probative of the petit larceny charge and in any event constitutes harmless error. (People v Crimmins, 36 NY2d 230; People v Medina, 53 NY2d 951; People v Byrne, 17 NY2d 209; People v Williams, 140 AD2d 970.) IV. Defendant was not denied his right to a fair trial. (People v Medina, 53 NY2d 951.)
   OPINION OF THE COURT

Bellacosa, J.

This appeal raises a question concerning the People’s obligation to seek out and obtain before trial evidence not in their possession or control. In particular in this case, the two money orders now at issue were not otherwise subject to discovery under CPL article 240. They were, however, within the scope of the People’s voluntary disclosure agreement to provide to the defense. The People acquired the two money orders during trial and immediately turned them over to defense counsel.

We conclude that the money orders were properly admitted as evidence in the People’s case-in-chief, because (1) they were not discoverable as a matter of right pretrial; (2) disclosure during trial did not violate the voluntary arrangement; (3) there was no bad faith on the part of the prosecutor; and (4) no undue prejudice as a matter of law infected the trial court’s discretionary ruling. The order of the Appellate Division upholding the conviction, now before us by leave to appeal granted by a Judge of this Court, should therefore be affirmed.

Defendant was an Orange County Deputy Sheriff, assigned as the Commissary Officer for the Orange County Correctional Facility. His responsibilities included administering the Commissary bank account, into which funds were deposited on behalf of inmates for use in purchasing personal items. During defendant’s tenure, he drew at least 38 checks on that account, which were payable to the local post office for the purchase of money orders. An audit revealed numerous irregularities and irreconciliations with respect to the checks and the account. Although the checks were made payable on their face to "Postmaster,” the defendant was proved to have altered the check stub records, maintained at the Correctional Facility, to reflect different payees. An accountant’s analysis of the records revealed approximately $14,000 worth of these checks as suffering from irreconcilable discrepancies. Defendant was convicted after a jury trial of grand larceny in the third degree, falsifying business records in the first degree and official misconduct, arising out of the embezzlement of the checks and the alteration of the records.

About nine months before trial, the People provided defense counsel with a "voluntary disclosure form,” agreeing to allow inspection of "[pjhysical evidence to be introduced at the trial or hearings which is the subject of the Indictment.” The People fully complied with this arrangement as to all physical evidence in their possession. The actual money orders that defendant was alleged to have purchased with the unauthorized checks were not produced before trial, because the District Attorney had not obtained them. While some disagreement persists as to the availability, location and effort to find and obtain these records, the dispositive question on this appeal centers on the legal obligation of the prosecution to acquire and disclose such evidence before trial and the consequence for admissibility at trial.

Two weeks into defendant’s trial, the prosecutor announced that two of the money orders had been located and would be offered into evidence. He immediately provided copies to the court and to defense counsel. The two money orders were particularly significant because they were payable to an attorney in partial satisfaction of a debt owed to United Jersey Bank by the defendant. These records thus supplied direct evidence that some of the missing funds had been converted to defendant’s personal advantage. The People also introduced into evidence a copy of the judgment against defendant in favor of United Jersey Bank.

Defense counsel objected to the introduction of the money orders, arguing that they would severely prejudice his client’s defense. Counsel claimed that he had built the defense, including his opening statement, around the absence of any direct documentary evidence that the stolen money had inured to the benefit of the defendant. The District Attorney countered that his office had decided to pursue the money orders around the time the case was ready to go to trial, and soon after a trial court ruling suppressing defendant’s inculpatory admission. As soon as the quest for this documentary evidence proved partially successful, the People immediately turned copies of the money orders over to the defense. The Trial Judge overruled the defense objection and admitted the evidence, offering the defense time for an adjournment to deal with the new evidence as it might deem fit and necessary.

On this appeal, defendant concedes that the People did not have possession of the money orders until after the trial had begun and that they turned the items over immediately. Instead, the claim is one of surprise, prejudice and error as a matter of law derived from defendant’s novel prosecutorial discovery obligation.

At common law, courts were without power to order discovery in criminal cases (People ex rel. Lemon v Supreme Ct., 245 NY 24, 28 [Cardozo, Ch. J.]). More recently, in addition to overarching imperatives premised on constitutional rights and fundamental fairness (see, e.g., Brady v Maryland, 373 US 83; Giglio v United States, 405 US 150; see also, People v Rosario, 9 NY2d 286; CPL 240.40 [1] [c]), the Legislature has prescribed a detailed discovery regimen in New York embodied in article 240 of the Criminal Procedure Law (see, People v Copicotto, 50 NY2d 222, 225; see also, People v DaGata, 86 NY2d 40, 44). Items not enumerated in article 240 are not discoverable as a matter of right unless constitutionally or otherwise specially mandated (People v Copicotto, supra, at 226, n 3; see, Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 240.10, at 216-217). No such exceptional circumstances are urged or appropriately at issue in this case or on this appeal. Thus, we turn to the standard discovery rubrics provided by the Criminal Procedure Law.

The CPL does not expressly compel pretrial discovery of evidentiary material — such as the money orders at issue here— which the prosecution intends to introduce at trial (see, CPL 240.20). Voluntary inspection of such evidence may be prudent, however, and ought in any event to be encouraged to help prevent delays and potential prejudice (see, 2 LaFave and Israel, Criminal Procedure § 19.3 [e], at 490 [1984]). Moreover, in the sound exercise of responsible discretion, the trial court may order early prosecutorial disclosure under certain defined circumstances (see, CPL 240.40 [1] [c]).

Sound practice is illustrated by what took place here. The prosecution voluntarily agreed to allow inspection of all physical evidence in its possession that it intended to introduce at trial, and defendant acknowledges that the People fully complied with respect to materials actually in their possession. After the People obtained the money orders midtrial and decided then that they would seek their admission into evidence, the trial court weighed all the circumstances, offered a reasonable opportunity for an adjournment and then properly admitted the evidence. No authority is tendered or discernible that would bar such evidence as a matter of law under these circumstances.

Defendant would raise the People’s obligation a step or two higher than the voluntary agreement to disclose the evidence in their possession before trial. His formulation would additionally require the People to actually obtain the money orders before trial, or to show some earnest efforts to acquire the evidence or explain why those efforts failed. Lack of satisfaction of these steps would result in preclusion of any use of the evidence. We decline, however, to adopt defendant’s proposed rule. Accepting in this case, without deciding, that the commendable voluntary disclosure agreement created a case-specific duty to provide discovery of such items to the defense in the first place, that duty does not include a concomitant obligation to locate and obtain evidence at any particular moment in the prosecution. The absence of such a legal obligation is especially certain when, as here, the items of evidence were never in the possession or control of the District Attorney, but instead constituted records of the United States Postal Service (compare, People v Washington, 86 NY2d 189; People v Flynn, 79 NY2d 879).

Adopting defendant’s argument would result in the anomaly that the conviction might be affirmed if the People had not voluntarily agreed to disclose available evidence to be introduced, yet would be reversed because they made such an agreement without, at any given pretrial point, going out and scouring up all the potential evidence, or at least earnestly trying to do so. No good policy purpose would be served in countenancing such a counterproductive disincentive to voluntary disclosure arrangements. Notably, too, the defendant could have anticipatorily moved the trial court, under CPL 240.40 (1) (c), for an order requiring that the items be produced in the court’s discretion. Additionally, defense counsel could have sought a subpoena duces tecum to try to locate and secure the money orders (see, CPL 610.20 [3]). Defendant did none of these things, perhaps for his own strategic defense reasons, nor did he even seek the money orders in his discovery demand (see, CPL 240.20 [1]). This calculated lack of initiative should not be rewarded by the rule now proposed.

An additional aspect of this case is the defendant’s claim that in formulating his defense, he was entitled to rely on the People’s pretrial representations that they would voluntarily produce evidence to be introduced at trial. We agree that he could reasonably so rely, but that does not entitle him to the sweeping preclusive remedy he now demands, without any authority predicate for this new general postulate. Absent bad faith by the prosecutor (see, People v Williams, 195 AD2d 986, 987, lv denied 82 NY2d 905) or undue prejudice to the defendant’s case, or both, a trial court should generally not be said to have ruled erroneously as a matter of law (see, e.g., People v Kelly, 62 NY2d 516, 520; see also, People v Cunningham, 189 AD2d 821, 822, lv denied 81 NY2d 1071; People v Polanco, 174 AD2d 468). Reversal of this conviction is surely not warranted here, where there is not even an allegation of bad faith on the part of the prosecutor.

As to defendant’s claim of undue prejudice, the Trial Judge prudently offered defendant an adjournment to deal with the "late” acquisition and production of the documents at trial. The prejudicial impact resulting from the introduction of the money orders also flowed substantially from a tactical decision by defense counsel that misfired. Despite having been told by the District Attorney during jury selection that the prosecutor’s office was attempting to locate the money orders, defense counsel nonetheless risked telling the jury in his opening statement that he did not contest the facts and documents that the People would present, and that there would be no evidence of the defendant’s intent to defraud. Defendant’s counsel, with such advance warning and, therefore, no legally cognizable surprise, should not now be rescued from the failed stratagem because of the prosecutor’s pursuit and acquisition of the key evidence during trial.

Finally, it is pertinent to note that evidence of guilt (for example, of a documentary type as here, or an eyewitness identification or a confession) is always prejudicial in a familiar sense of that word; it is expected and supposed to be so. Merely invoking the word "prejudice” does not, in and of itself, preclude admission of relevant evidence unless some evidentiary prohibition is violated (see, e.g., People v Buie, 86 NY2d 501, 509; People v Lewis, 69 NY2d 321, 325; Prince, Richardson on Evidence, § 4-101, at 136 [Farrell 11th ed 1995]). Because no such prohibition exists or applies to these circumstances, the trial court properly admitted the money orders and the Appellate Division correctly affirmed the judgment of conviction.

We have considered defendant’s other claims and conclude that they are without merit.

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

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

Order affirmed.


author: Simons, J.

text:
    [663 NE2d 313, 639 NYS2d 1001]
    In the Matter of Y. K., a Person Alleged to be a Juvenile Delinquent, Respondent.
    Argued January 10, 1996;
    decided February 15, 1996

      POINTS OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Elizabeth I. Freedman and Francis F. Caputo of counsel), for appellant.
    I. The Court below erroneously concluded that the Family Court applied the wrong standard in determining whether the use of force was legally justified. The Family Court did not impermissibly shift the burden of proof on this issue, nor did it apply an erroneous standard in evaluating the evidence pertaining to the justification defense. To the contrary, the Family Court analyzed the justification evidence in a legally appropriate manner, and properly determined that the presentment agency had disproved the justification defense beyond a reasonable doubt. (People v Goetz, 68 NY2d 96; People v Wesley, 76 AD2d 555.) II. The Court below erroneously rejected the Family Court’s findings, as the evidence was legally sufficient to support the Family Court’s determination as a matter of law. The credible evidence in the record amply supported the Family Court’s determination that respondent used deadly physical force without justification, and acted unreasonably in failing to retreat to safety, as a matter of law. (People v Collice, 41 NY2d 906; People v Brown, 187 AD2d 312, 81 NY2d 837; People v Henegan, 150 AD2d 606, 74 NY2d 810; People v Candelaria, 206 AD2d 385, 84 NY2d 933; People v Varela, 164 AD2d 924, 76 NY2d 1025; People v King, 186 AD2d 683, 81 NY2d 842; People v Rosado, 123 AD2d 649, 69 NY2d 716; People v White, 162 AD2d 297, 77 NY2d 883; Matter of Umar C., 205 AD2d 770.)

      Judith Waksberg, New York City, Jane M. Spinak and Laura Potter-Cahn for respondent.
    I. The appeal should be dismissed because the reversal of the Family Court order by the Court below was not based upon the law alone, but upon a differing interpretation of the facts and was therefore a determination of a mixed question of law and fact. (Matter of Roman v Sharpe, 42 NY2d 986; People v Bleakley, 69 NY2d 490; People v Howard, 74 NY2d 943; People v Nixon, 76 NY2d 870; People v Lawrence, 74 NY2d 732; People v Robinson, 69 NY2d 1014; People v Gordon, 69 NY2d 874; People v McCready, 68 NY2d 981; People v Witherspoon, 68 NY2d 805; People v Zurzolo, 74 NY2d 680.) II. The Court below correctly found that respondent’s use of deadly force was justified under the circumstances and that the Family Court had both shifted the burden of proof and failed to apply properly the standard of a reasonable person in respondent’s circumstances in determining the reasonableness of respondent’s conduct. (People v McManus, 67 NY2d 541; People v Rodriguez, 111 AD2d 879; People v Wesley, 76 NY2d 555; People v Goetz, 68 NY2d 96; People v Light, 170 AD2d 461; People ex rel. Wayburn v Schupf, 39 NY2d 682.)
   OPINION OF THE COURT

Simons, J.

Family Court has adjudged respondent a juvenile delinquent because she committed acts which, if committed by an adult, would constitute assault in the second and third degrees and criminal possession of a weapon in the fourth degree. A divided Appellate Division reversed the order of disposition, denied the petition and dismissed the proceeding. The majority concluded that the People had failed to disprove respondent’s justification defense.

The question to be decided is the appropriate legal standard for the justified use of deadly physical force under Penal Law § 35.15 and its application to the facts of this case.

I

We are confronted at the outset by inconsistent findings of fact in the courts below. Under those circumstances, we must choose which findings more nearly comport with the evidence in the record. We adopt the findings of the Appellate Division. Those facts, with others that are undisputed, establish that on May 7, 1992, respondent, then age 13, was walking home with two friends when she was set upon by a group of 10 to 15 boys and girls from her school. While some in the group shouted threats, first one, then another, girl ran up behind respondent and hit her on the head. Her companions fled to a nearby subway station for safety but respondent, fearing that she might get trapped or thrown onto the subway tracks, decided to continue walking. As she did so, she noticed a kitchen knife on the sidewalk, picked it up and held it inside her jacket. At this point, another girl approached respondent from behind and hit her. Respondent turned toward the group and began fighting with complainant until the two girls fell or were pushed to the ground by the others. Complainant ended up on top of respondent and continued punching her in the head and chest while others in the group cheered her on and kicked respondent’s body, head and face. Respondent estimated she was beaten in that way for five to eight minutes before she reached the point where she "couldn’t take it anymore.” While pinned on the ground, she removed the knife from her jacket and stabbed the complainant in the head and back. The fight continued until the police arrived and broke it up.

Family Court sustained three charges against respondent. Although it found that respondent was "assaulted * * * without provocation,” "was in fear” and "was terrified under the circumstances of the other girls attacking her”, the court rejected respondent’s justification defense, finding that respondent’s failure to retreat to the subway station was not "objectively reasonable”. The Appellate Division reversed. The case is before us because two Justices of that Court dissented on a question of law (see, CPLR 5601 [a]).

II

The defense of justification permits the use of force under certain circumstances (see, People v McManus, 67 NY2d 541, 545; People v Watts, 57 NY2d 299, 301). Generally, the force permitted is related to the degree of force reasonably believed necessary to repel various threats. Thus, one may use physical force upon another if "he reasonably believes such to be necessary to defend himself * * * from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person” (Penal Law § 35.15 [1]) or he may use "deadly physical force” if "[h]e reasonably believes that such other person is using or about to use deadly physical force” against him (Penal Law § 35.15 [2] [a]). There is no duty to retreat before using physical force but one may not use deadly physical force "if he knows that he can with complete safety as to himself and others avoid the necessity of doing so by retreating” (id.). Deadly physical force is defined as force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury (Penal Law § 10.00 [11]). Justification is a defense, not an affirmative defense, and therefore the People bear the burden of disproving it beyond a reasonable doubt (see, Penal Law § 35.00; People v McManus, supra, at 546; People v Goetz, 68 NY2d 96, 116).

In People v Goetz (supra), we explained that the justification statute imposes a two-part test which involves both subjective and objective components. When a defendant claims the use of force was justified, the fact finder must first determine if defendant believed physical force (or deadly physical force) was necessary to defend against the imminent use of physical force (or deadly physical force). That is the subjective component. If the People fail to disprove defendant believed physical force was necessary, the fact finder must next consider whether defendant’s belief was reasonable, that is, whether a reasonable person would have held that belief under the circumstances which existed. It is not enough that the defendant believed that the use of force was necessary under the circumstances; his reactions must be those of a reasonable person similarly confronted (see also, People v Collice, 41 NY2d 906). That is the objective component.

If the case involves the use of deadly physical force and the fact finder determines that the use of such force was subjectively and objectively reasonable under the circumstances, then the fact finder must determine whether defendant could retreat with safety. If a defendant confronted with deadly physical force knows retreat can be made with complete safety and fails to do so, the defense is lost.

Applying those rules to the facts found by the Appellate Division, respondent was initially confronted with physical force and chose to turn and face the aggressors to avoid further attacks. Under those circumstances, she was under no duty to retreat. She was the victim of an unprovoked attack and was justified in using physical force to meet the physical force used against her.

The Appellate Division found, however, that after respondent was thrown to the ground, the situation escalated. She was held down while complainant and others in the group punched and kicked her about her face, head and body, actions which warranted the use of deadly physical force by respondent to defend herself. Family Court’s decision was based upon its finding that respondent’s failure to retreat had not been reasonable. Her duty to retreat, however, did not arise until the point at which deadly physical force was used or imminent. At that point, when the kicking and punching started, the respondent was being held on the ground, surrounded by the 10 to 15 other members of the group and apparently without anyone in the area to help her. Manifestly, she was unable to retreat safely under those circumstances and her use of deadly physical force to defend herself was justified.

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

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

Order affirmed, without costs.


author: Ciparick, J.

text:
    [663 NE2d 316, 639 NYS2d 1004]
    In the Matter of Jerald O’Brien, Respondent, v Thomas W. Keegan, as Justice of the Supreme Court, Appellant.
    Argued January 4,1996;
    decided February 15, 1996

      POINTS OF COUNSEL

      Dennis C. Vacco, Attorney-General, Albany (Wayne L. Benjamin, Victoria A. Graffeo and Peter H. Schiff of counsel), for appellant.
    I. A licensing officer, whose jurisdiction is invoked by a firearms licensee, has the authority, after a due process hearing, to restrict a carry concealed firearms license to the proper cause demonstrated. (Matter of Moore v Gallup, 267 App Div 64, 293 NY 846; Matter of Fromson v Nelson, 178 AD2d 479; Matter of Anderson v Mogavero, 116 AD2d 885; Matter of Bernstein v Police Dept., 85 AD2d 574; Matter of Caruso v Ward, 160 AD2d 540, 76 NY2d 706; Hochreich v Codd, 68 AD2d 424; Matter of O’Connor v Scarpino, 154 Misc 2d 694, 195 AD2d 1009, 83 NY2d 919; Matter of Lap v Axelrod, 95 AD2d 457, 61 NY2d 603; Matter of Maytum v Nelson, 53 AD2d 221; Matter of Sherwood, 80 Misc 2d 215.) II. The Court below usurped a discretionary administrative function when it ordered Justice Keegan to issue an unrestricted firearms license. (Matter of Moore v Gallup, 267 App Div 64, 293 NY 846; Matter of Sherwood, 80 Misc 2d 215; Federal Power Commn. v Idaho Power Co., 344 US 17; Matter of Ahsaf v Nyquist, 37 NY2d 182; Burke’s Auto Body v Ameruso, 113 AD2d 198; Matter of Fulco v McGuire, 81 AD2d 509.)

      Chamberlain and Kaufman, Albany (Jeffrey Chamberlain of counsel), for respondent.
    I. Appellant had neither authority nor cause to change respondent’s existing pistol license by imposing new "restrictions” on it merely because respondent applied for and received an amendment to change the firearms on his license. (Matter of Mulligan v Williams, 169 AD2d 280; Matter of Leone v Silverman, 153 AD2d 862; Matter of Wright v County of Monroe, 45 AD2d 932; Matter of Pelose v County Ct., 53 AD2d 645, 41 NY2d 1008; Council for Owner Occupied Hous. v Abrams, 72 NY2d 553; Matter of Field Delivery Serv. [Roberts], 66 NY2d 516; Matter of Parker v Nastasi, 62 NY2d 714; People v Parker, 52 NY2d 935; People v Serrano, 52 NY2d 936; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588.) II. The Court below did not order the appellant to "issue an unrestricted license”.
   OPINION OF THE COURT

Ciparick, J.

A licensing officer will issue a license to possess and carry a concealed firearm only when "proper cause exists” (see, Penal Law § 400.00 [2] [f]). Other than in New York City and Nassau and Suffolk Counties, where licenses are subject to renewal every three or five years, respectively, the procedure to amend a "carry concealed license” to add or delete weapons is by application to the licensing officer (see, Penal Law § 400.00 [9], [10]). In furtherance of both the regulatory and public safety purposes of Penal Law § 400.00, we hold that a licensing officer is authorized to engage in a "proper cause” inquiry when presented with an application to amend a carry concealed license.

On March 31, 1987, Albany City Court granted petitioner’s application for a carry concealed license, restricted to hunting and target practice. In 1989, petitioner applied to amend his license to cover two additional firearms and remove the hunting and target shooting restrictions. On June 29, 1989, petitioner’s application was granted, without a proper cause inquiry, and he was issued an unrestricted carry concealed license for his two semiautomatic pistols and one revolver. In early 1990, petitioner again sought to amend his license to reflect the acquisition of another semiautomatic handgun. On February 1, 1990, the same licensing officer approved the amendment, again without conducting a proper cause inquiry.

The third time petitioner applied to amend his license he sought to substitute one revolver for another and add another semiautomatic handgun, and requested the issuance of a license that conformed with the recently redesigned license format. This application was reviewed by a different licensing officer, who concluded that petitioner failed to demonstrate proper cause to hold an unrestricted carry concealed license under Penal Law § 400.00 (2) (f). Thus, the licensing officer granted petitioner’s application to amend his license to the extent of authorizing the addition of one weapon and deletion of one weapon — for a total of five firearms — and restricting the license to hunting and target shooting.

Petitioner protested, and the licensing officer agreed to meet with him to consider his request for removal of the hunting and target shooting restrictions. According to the licensing officer, petitioner could not articulate any valid reason when he was asked why he needed to carry up to five concealed weapons at virtually any time. Indeed, petitioner informed the licensing officer that he wanted an unrestricted carry concealed license because "[i]t just makes me feel better.” The licensing officer adhered to the original determination that the proper cause shown by petitioner only supported a license restricted to hunting and target shooting.

Petitioner challenged this determination in a CPLR article 78 proceeding, initiated in the Appellate Division pursuant to CPLR 506 (b) (1), to compel the licensing officer to remove the restrictions from petitioner’s license on the ground that the licensing officer was not authorized to modify his valid unrestricted license. Petitioner argued that under Penal Law § 400.00 (10) his unrestricted license remains "in force and effect until revoked” and the licensing officer improperly revoked the license issued by the prior licensing officer. The Appellate Division, with one Justice dissenting, granted the petition to the extent of directing the removal of the hunting and target shooting restrictions and the issuance of an unrestricted license, ruling that an application to amend a license "does not trigger the opportunity for another 'proper cause’ determination” (see, Matter of O’Brien v Keegan, 207 AD2d 5, 7-8). We disagree, and now reverse.

Eligibility for a license in the first instance or for renewal is contingent upon an investigation by the licensing officer, and a finding that all statements in the application are true (see, Penal Law § 400.00 [1]). Thus, as a threshold matter, the investigation of an applicant for a carry concealed license must yield "proper cause” to the licensing officer’s satisfaction for a license to issue (see, Penal Law § 400.00 [2] [f]). At the other end of the spectrum, the licensing officer is statutorily invested with the power to sua sponte revoke or cancel a license (see, Penal Law § 400.00 [11] [other than in New York City and Nassau and Suffolk Counties, a Judge or Justice of a court of record acts as the licensing officer]). This extraordinary power reposed in a licensing officer in and of itself supports respondent’s determination to restrict the scope of petitioner’s license.

Additionally, we recently held that a licensing officer’s power to determine the existence of "proper cause” for the issuance of a license necessarily and inherently includes the power to restrict the use of a license to the purposes that justified its issuance (see, Matter of O’Connor v Scarpino, 83 NY2d 919, 921). "Without such a power to condition, the licensing officer’s authority to allow possession of a handgun only for proper cause would be rendered meaningless and the obvious regulatory purpose of the statute would be frustrated” (id..). This applies with equal force to the licensing officer’s powers upon review of an application to amend a license. To find otherwise would nullify the purpose underlying a formal amendment procedure and conflict with the dual aims of Penal Law § 400.00.

Under the circumstances of this case, it was not unreasonable for respondent to restrict petitioner’s license. While petitioner does not dispute that respondent was justified in inquiring about "changed circumstances,” petitioner insists that Penal Law § 400.00 (9) does not permit respondent to alter his license upon an application to amend, absent some "cause” related to his fitness to hold a firearm. Petitioner reads the statute too narrowly. Petitioner’s inability to demonstrate a need — or much less, any reason — for an unrestricted license, which would permit him to carry several concealed firearms, supports the licensing officer’s finding that there was no "proper cause” to justify an unrestricted carry concealed license. Consequently, the licensing officer’s restriction of petitioner’s license was neither arbitrary nor capricious, promoting both the regulatory and public safety aims of Penal Law § 400.00.

Accordingly, the judgment of the Appellate Division should be reversed, with costs, and the petition dismissed.

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

Judgment reversed, etc.


author: Simons, J. Titone, J.

text:
    [663 NE2d 588, 640 NYS2d 432]
    The People of the State of New York, Respondent, v John Giordano, Joseph Giordano and Philip Cestaro, Appellants.
    Argued November 30,1995;
    decided December 28, 1995

      POINTS OF COUNSEL

      Richard A. Rehbock, New York City, for appellants.
    I. Nassau County lacked geographic jurisdiction to prosecute defendants for promoting gambling in the first degree. (People v Ribowsky, 77 NY2d 284; People v Moore, 46 NY2d 1; People v Goldswer, 39 NY2d 656; People v R., 160 Misc 2d 142; People v Hetenyi, 304 NY 80; People v Tullo, 34 NY2d 712; People v Botta, 100 AD2d 311.) II. The majority in the Court below employed CPL 20.60 (1) to bootstrap Nassau County into jurisdiction based on a mistaken reading of People v Botta (100 AD2d 311 [2d Dept 1984]). (People v Cousart, 74 AD2d 877; People v R., 160 Misc 2d 142; People v Ribowsky, 77 NY2d 284; People v Moore, 46 NY2d 1; People v Fea, 47 NY2d 70.) III. The Court below correctly reversed defendants’ conspiracy convictions but erred when it did not consider the effect of the now dismissed conspiracy count on the over-all verdict herein. (People v Contes, 60 NY2d 620.) IV. After a day and one half of deliberations by the jury, the trial court received a note for further explanation of the jurisdiction charge. The trial court after refusing to inform defendants of its intended supplemental instructions delivered a dynamite charge that directed a verdict in this case, denying defendants their rights to a fair trial. (People v Ciaccio, 47 NY2d 431; People v O’Rama, 78 NY2d 270; United States v Ronder, 639 F2d 931; People v Agosto, 73 NY2d 963.) V. The sentences for these three defendants charged with nothing more than being involved in a small bookmaking operation in New York City were extraordinarily harsh and excessive and were clearly punished for exercising their right to go to trial. (People v Suitte, 90 AD2d 80; People v Jones, 39 NY2d 694; Barbier v Connolly, 113 US 27.)

      Denis Dillon, District Attorney of Nassau County, Mineóla (Lawrence J. Schwarz and Peter A. Weinstein of counsel), for respondent.
    I. The People proved by legally sufficient evidence that Nassau County had geographical jurisdiction for the instant prosecution. (People v Sosnik, 77 NY2d 858; People v Ribowsky, 77 NY2d 284; People v Moore, 46 NY2d 1; People v Goldswer, 39 NY2d 656; People v Guidice, 83 NY2d 630; People v Hetenyi, 277 App Div 310, 301 NY 757; People v McLaughlin, 80 NY2d 466; Watts v Malatesta, 262 NY 80; People v Pavia, 8 NY2d 333; People v Farone, 308 NY 305, 350 US 828.) II. Neither the People’s failure to prove the conspiracy count, nor the trial court’s jury instructions pertaining to geographical jurisdiction, is a basis for reversing defendants’ convictions for promoting gambling in the first degree. (People v O’Rama, 78 NY2d 270; Griffin v United States, 502 US 46; People v Martinez, 83 NY2d 26; People v Charles, 61 NY2d 321; People v Grega, 72 NY2d 489; People v Treuber, 64 NY2d 817; People v Leisner, 73 NY2d 140; People v Aversa, 156 AD2d 371; People v Mattina, 106 AD2d 586; United States v Townsend, 924 F2d 1385.) III. None of defendants’ sentence claims can be reviewed by this Court. (People v Hurley, 75 NY2d 887; People v Ruz, 70 NY2d 942; People v Ingram, 67 NY2d 897; People v Kinchen, 60 NY2d 772; People v Charleston, 54 NY2d 622; People v Eason, 40 NY2d 297; People v Miller, 65 NY2d 502, 474 US 951; People v Jones, 39 NY2d 694; People v Thompson, 60 NY2d 513.)
   OPINION OF THE COURT

Simons, J.

This is a gambling prosecution involving three bookmakers. They operated primarily in Manhattan but they frequently "hedged” or "laid off” bets in Nassau County through an accomplice named Rothman. Following a joint trial, each was convicted of four counts of promoting gambling in the first degree and one count of conspiracy in the fifth degree. On appeal, a divided Appellate Division dismissed the conspiracy count and otherwise affirmed.

The principal issues before us are (1) whether Nassau County had geographical jurisdiction to prosecute defendants when the only conduct there consisted of telephone calls from Manhattan hedging bets made in Manhattan and (2) whether the convictions for promoting gambling must be reversed because of the trial court’s instructions on jurisdiction. We conclude there should be an affirmance.

I

Defendants John Giordano, Joseph Giordano and Philip Cestaro, along with Bernard Rothman, conducted a bookmaking operation in Manhattan. The Giordano brothers managed the business and Rothman worked for them. Cestaro was a runner. On several occasions in the spring of 1989, Rothman placed telephone calls from Manhattan to the "Meacham” bookmaking operation in Nassau County to "hedge” or "lay off” bets placed in Manhattan. He did this when bets received by the Manhattan operation were not evenly placed against the two teams in a particular sporting event and it became necessary for defendants to shift their risk of loss by placing bets on the favored team with another bookmaking operation. In that way, if the Manhattan bettors won, defendants would also win on the hedge bets they had placed in Nassau County or elsewhere and they would thus have a source of funds to pay the Manhattan winners.

Following trial the jury found that defendants promoted gambling in the first degree and conspired to promote gambling in the fifth degree and the court sentenced them to fines and terms of incarceration.

II

The State Constitution and the common law provide defendants with the right to be tried in the county where the crime was committed unless the Legislature has provided otherwise (People v Ribowsky, 77 NY2d 284, 291; People v Moore, 46 NY2d 1, 6; NY Const, art I, § 2). The burden rests on the People to establish geographical jurisdiction by a preponderance of the evidence (People v Ribowsky, 77 NY2d, at 291-292, supra). To establish jurisdiction on the promoting gambling counts here, the People invoked the statutory provision which establishes a county as the proper venue when the defendant, either directly or by an accomplice, engages in conduct "within such county sufficient to establish * * * [a]n element of such offense” (CPL 20.40 [1] [a]; People v Tullo, 34 NY2d 712, 714; see also, People v Guidice, 83 NY2d 630, 635-636).

Defendants contend, however, that promoting gambling in the first degree has only one element, knowingly advancing or profiting from unlawful gambling activity by engaging in bookmaking, and that Nassau County lacked geographical jurisdiction to prosecute them because there was no proof that they accepted bets, i.e., engaged in bookmaking, in Nassau County (see, Penal Law § 225.00 [9]). We conclude that advancing or profiting from unlawful gambling activity is a separate element of promoting gambling in the first degree and, if established by the evidence, could support jurisdiction in Nassau County.

Article 225 of the Penal Law sets forth a framework establishing two promoting gambling offenses and various other gambling-related offenses. Under the statutory scheme a mere "player” or bettor is not criminally liable but one who, in some capacity other than as a player, participates in any gambling enterprise or activity is guilty of a crime. The basic inquiry in each case is whether the game or scheme in issue constitutes gambling and whether defendant’s conduct is other than as a player.

The core crime, section 225.05, provides that a person is guilty of promoting gambling in the second degree when "he knowingly advances or profits from unlawful gambling activity.” A person "advances gambling activity” when, acting as other than a player, he engages in conduct which materially aids any form of gambling activity (Penal Law § 225.00 [4]). The statute identifies various types of conduct which may constitute gambling activity, including conduct "toward the arrangement of any of its financial or recording phases”, and concludes with the catchall phrase referring to conduct directed "toward any other phase of [a gambling] operation.” Section 225.05 imposes misdemeanor liability for the entire spectrum of gambling activity, and is augmented by section 225.10 which criminalizes specialized kinds of felonious bookmaking and policy activity not included within it (see, Staff Notes of New York State Commission on Revision of Penal Law and Criminal Code, McKinney’s Spec Pamph [1964]). The article also sets forth various possessory offenses (see, e.g., Penal Law §§ 225.15, 225.30).

Section 225.10 is structured to incorporate the exact language of section 225.05 as its initial element of advancing gambling activity, and then adds two subdivisions identifying additional elements which enhance the crime to first degree. Manifestly, second degree promoting, as defined in section 225.05, is a lesser included crime of first degree gambling, as set forth in section 225.10, and, on the record before us, defendants could have been prosecuted for it in Nassau County. Indeed, defendants requested that the court instruct the jury that it was a lesser included offense.

The language of section 225.10 requiring interpretation here provides:

"A person is guilty of promoting gambling in the first degree when he knowingly advances or profits from unlawful gambling activity by:
"1. Engaging in bookmaking to the extent that he receives or accepts in any one day more than five bets totaling more than five thousand dollars; or

The opening paragraph and subdivision (1) describe different conduct; the use of the word "by” in the statute to define how the enhanced liability obtains does not, as defendant maintains, collapse two elements into one. One "advances gambling” activity by engaging in any conduct which materially aids a gambling operation (Penal Law §§ 225.05, 225.00 [4]), in this case by hedging bets. Thus, Rothman’s conduct constituted promoting gambling in the second degree, necessarily establishing his commission of the first element of the first degree crime. His liability was raised to the felony level because he engaged in bookmaking as a business.

To read Penal Law § 225.10 (1) as a one element crime, "advancing unlawful gambling by bookmaking”, would make the statute redundant and render the language in the opening paragraph surplusage. That paragraph holds defendant guilty of promoting gambling when he "advances gambling activity”, but "bookmaking” is defined as "advancing gambling activity by unlawfully accepting bets” as a business (see, Penal Law § 225.00 [9]). Accordingly, the statute would have no different meaning if the opening language were excised from it as defendants would do. Under well-established principles of interpretation, effect and meaning should be given to the entire statute and " 'every part and word thereof ” (Sanders v Win-ship, 57 NY2d 391, 396). We should assume the Legislature had a purpose when it used the phrase "advances or profits from unlawful gambling activity” in the first paragraph and avoid a construction which makes the words superfluous (see, Matter of Branford House v Michetti, 81 NY2d 681, 688). These rules of statutory construction lead us to conclude that the opening language of the statute and that of subdivision (1) address two distinct types of conduct, and must therefore be two elements of the crime. Indeed, the statute, far from encompassing only one element, promoting gambling by bookmaking, as defendant maintains, includes four: not only the elements of bookmaking and advancing unlawful gambling, but also receiving five or more bets totalling more than $5,000 on a given day and knowingly profiting from the bookmaking operation when the bets are received (see, 3 CJI[NY] PL 225.10 [1], at 1862-1865).

Thus, we conclude that conduct advancing gambling activity and engaging in a bookmaking business are two separate elements. If conduct establishing one of these two elements occurred in Nassau County, that County had jurisdiction to prosecute defendants for the whole crime.

Inasmuch as neither defendants nor their associates accepted or received bets in Nassau County, the People necessarily relied on evidence of the other element, that defendants promoted gambling in Nassau County by laying off bets there. The evidence of the People’s case rested almost entirely on the testimony of two undercover officers and tapes of intercepted telephone calls to the Meacham operation. It established that defendants’ accomplice, Rothman, placed phone calls from Manhattan to the Nassau County bookmaking operation to lay off bets on the days specified in the indictment. By hedging bets with another bookmaker, Rothman advanced gambling activity within the meaning of the statute because he (1) acted as other than a "player” (defined in Penal Law § 225.00 [3]); (2) he materially aided a bookmaking operation by reducing its risk of heavy losses; and (3) his conduct was directed toward a critical phase of the gambling businessits profitability on a particular game as well as its over-all financial viability.

Moreover, he did so in Nassau County because the Criminal Procedure Law provides that oral statements made over the telephone are deemed to be statements made in both the sending and receiving counties (see, CPL 20.60 [1]; see also, People v Botta, 100 AD2d 311, 315, lv denied 62 NY2d 805). Thus, even though Rothman operated in Manhattan and placed telephone calls to Nassau County from there, Nassau County was a proper venue for prosecution of the crimes. Inasmuch as defendants were accomplices of Rothman, they too could be prosecuted in Nassau County.

Ill

Defendants contend further that inasmuch as the Appellate Division reversed defendants’ conspiracy convictions for insufficient evidence, no predicate remains for jurisdiction in Nassau County because the trial court in its supplemental charge, in effect, directed a verdict on jurisdiction based on the conspiracy count of the indictment.

Preliminarily we note that the record contains abundant evidence from the undercover officers and the tapes to establish beyond a reasonable doubt that Rothman made the hedge bets to the Meacham operation in Nassau County. Indeed, defendants do not dispute this evidence. Their primary contention is that even though these acts were established beyond a reasonable doubt, (1) the trial court’s expanded charge on jurisdiction requires the court to presume that the jury found jurisdiction for all counts based on the conspiracy, and thus (2) because the Appellate Division reversed the conspiracy convictions, the promoting gambling convictions must also be reversed.

In its initial charge, the trial court correctly instructed the jury that it must find that Nassau County had jurisdiction to prosecute each count of the indictment by a preponderance of the evidence. Consistent with the provisions of subdivisions (1) (a) and (1) (b) of CPL 20.40, it charged the jury that it could find jurisdiction if it found conduct occurred within Nassau County sufficient to establish an element of the crime or a conspiracy to commit the crime. It then charged the jury separately on the promoting counts and on count 20, the conspiracy count, instructing the jury that as to conspiracy the jury must find an overt act committed in Nassau County to support the charge that defendants conspired to promote gambling in Nassau County. Defendants did not object to any part of this charge when given, or when it was subsequently reread in response to requests by the jury during deliberations.

On the second day of deliberations, the jury again requested a reread of the charge on jurisdiction. After consultation with counsel, the court stated that it intended to repeat its initial charge and to expand its instructions, over defense objections that doing so would direct a verdict against defendants. When it instructed the jury, the court pointed out once again that there were two ways the People could establish jurisdiction — by establishing that an element of the crime of promoting gambling occurred in the county — or by establishing a conspiracy to commit the object crime of promoting gambling in the county. The court then went on to state "I would suggest, I am certainly not directing, I would suggest that you might want to consider first in your deliberations the 20th count of the indictment, the conspiracy count.” It advised the jury that if it found beyond a reasonable doubt each and every element of conspiracy and that an overt act in furtherance of the conspiracy was committed in Nassau County, then Nassau’s jurisdiction to prosecute both the conspiracy charge and the promoting gambling charges would be established. The court further instructed the jury that if the People had not proven the conspiracy count to its satisfaction, the jury must still consider, for each of the counts charging promoting gambling, whether the People had proven "that the defendants or any one of them or their aiders and abetters committed an element of that crime of promoting gambling within Nassau County.” Following these instructions, the jury deliberated further until it requested a reread of the instruction on aiding and abetting. Shortly after receiving those additional instructions, the jury returned the guilty verdicts.

The supplemental charge was correct, indeed no objection to the substance of it was made. Moreover, the instruction left all factual determinations to the jury and provided it with an analytical framework within which to determine the jurisdictional questions under CPL 20.40 (1) {see also, Penal Law § 105.25 [1]). In short, the court instructed the jury that if it found certain factual matters proven, those facts would establish jurisdiction. It did not tell them that it had to find an agreement or an overt act and it did not "direct” a verdict on the conspiracy count, the promoting counts or on the question of jurisdiction.

The jury rendered a general verdict and there is no way to determine if its finding of jurisdiction for the promoting gambling counts was based on the conspiracy or on an element of promoting gambling. Under such circumstances, the court is not compelled to assume that the jury found jurisdiction based upon unproven conduct. Where, as here, a general verdict has been rendered and there are two lawful grounds upon which the jury could have reached that verdict but one of those grounds lacks support in the evidence, we may presume that the jury reached its determination upon the factually sufficient grounds (see, Griffin v United States, 502 US 46). Even if the court erred in its charge, and we conclude it did not, the fact that neither theory of geographical jurisdiction was illegal permits harmless error review (see, People v Martinez, 83 NY2d 26, 35, cert denied US —, 114 S Ct 2153; and compare, People v Ribowsky, 77 NY2d 284, 292, supra).

In this case the People established that defendants, by their accomplice Rothman, hedged bets by telephone calls to the Meacham operation in Nassau County. This established geographical jurisdiction for the promoting gambling counts and the jury was properly charged on the point. Rothman’s calls may have been the only conduct occurring in Nassau County, as defendants maintain, but they constituted both overt acts, whether pleaded as such or not, and the first element of promoting gambling and established a jurisdictional predicate for both the crimes of promoting gambling and conspiracy to promote gambling. This is so because separate and apart from the jurisdictional issue, the jury found beyond a reasonable doubt that defendants were guilty of promoting gambling in the first degree on the dates that Rothman placed calls to Nassau County. That verdict "necessarily implies” a finding of proper venue by a preponderance of the evidence (see, People v Ribowsky, 77 NY2d, at 292, supra) and under the well-settled common-law rule applied in Griffin v United States (supra), we need not now reverse the convictions for promoting gambling based upon the speculation that the jury found jurisdiction based on a conspiracy not established by the evidence.

IV

Defendants’ remaining arguments are without merit. The Trial Judge complied with our decision in People v O’Rama (78 NY2d 270), insofar as he sought input from counsel with respect to requests from the deliberating jury and thereafter advised the parties of the substance of the court’s intended response. Defendants’ contention that they received harsher sentences than their plea-bargaining codefendants as punishment for exercising their right to a jury trial is unpreserved for this Court’s review (see, People v Hurley, 75 NY2d 887). Accordingly, the order of the Appellate Division should be affirmed.

Titone, J.

(dissenting). Defendants were tried on gambling charges on the basis of evidence which tended to show that they had participated in the operation of a Manhattan "wire-room” that accepted bets from the public. The only nexus between defendants’ gambling activities and Nassau County was the series of telephone calls an associate Rothman made to place "hedge” bets with an unaffiliated Nassau County bookmaker. On the basis of these facts, the majority holds that the criminal courts of Nassau County had jurisdiction to try defendants for the crime of promoting gambling in the first degree. I disagree. In my view, the majority’s holding is premised on a fundamental misreading of the nature and essential elements of the gambling crime with which defendants were charged. Accordingly, I dissent and cast my vote to dismiss the remaining counts in the indictment.

L

Under CPL 20.40 (1) (a), an individual may be tried for an offense within a particular county when there has been conduct within the county "sufficient to establish * * * [a]n element of such offense.” Use of this jurisdictional predicate requires a close analysis of the statutory elements of the offense for which the defendant is to be tried: in this case, promoting gambling in the first degree.

The Penal Law defines that crime as follows:

"A person is guilty of promoting gambling in the first degree when he knowingly advances or profits from unlawful gambling activity by:
"1. Engaging in bookmaking to the extent that he receives or accepts in any one day more than five bets totaling more than five thousand dollars” (Penal Law § 225.10 [1]).

" 'Bookmaking’ means advancing gambling activity by unlawfully accepting bets from members of the public as a business, rather than in a casual or personal fashion” (id., § 225.00 [9]).

The majority concludes that "knowingly advancing] or profiting] from unlawful gambling activity” and "[e]ngaging in bookmaking” are separate elements of the promoting gambling crime with which defendants were charged. Relying on this interpretation of Penal Law § 225.10 (1), the majority then concludes that defendants may be tried in Nassau County because hedging by "laying off” bets with another bookmaker is a risk-reducing act that can advance illegal gambling activity and because defendants’ accomplice engaged in such conduct within Nassau County by telephonically placing "hedge” bets with a bookmaker located within that jurisdiction.

The flaw in the majority’s analysis is that it treats the statutory requirement of conduct constituting bookmaking as an independent crime element rather than what it actually is: an integral part of the statutorily defined actus reus. As the language and structure of Penal Law § 225.10 make clear, a person is guilty of first degree promoting gambling only if that person "advances or profits from unlawful gambling” in a particular way, i.e., "by [e]ngaging in bookmaking.” Acts that advance illegal gambling in general or through other specific means, including "laying off” or placing "hedging” bets, may satisfy the less precise actus requirement of the misdemeanor crime of promoting gambling (Penal Law § 225.05), but they do not constitute the particular act that Penal Law § 225.10 (1) prohibits.

That "engaging in bookmaking” through accepting bets is an integral part of the actus reus element of first degree promoting gambling is apparent from the grammatical structure of the statute. The "advancing illegal gambling” component is joined to the "bookmaking” component by the prepositional connector "by” rather than by a conjunctive or disjunctive connector such as "and” or "or”. This usage demonstrates that the phrase "by engaging in bookmaking” operates as a restrictive clause which modifies and limits the broad "advancing illegal gambling” component. Indeed, without excising the word "by” from the statute, it is impossible to read the prohibition against "advancing] or profit[ing] from unlawful gambling activity” as an element separate from the ban on bookmaking.

Significantly, when the Legislature has wanted to elevate the level of a crime through the addition of a separate aggravating element, it has consistently used the conjunctive words "and” and "or” (e.g, Penal Law §§ 140.25 ["(a) person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully * * * and when (other specified conditions are met)”] [emphasis supplied], 160.10 ["(a) person is guilty of robbery in the second degree when he forcibly steals property and when (other specific conditions are met)”] [emphasis supplied]). The absence of a similar formulation in section 225.10 negates any inference that "engag[ing] in bookmaking” is merely an aggravating element appended to the basic misdemeanor promoting gambling crime in order to create a more serious felony-level offense with concomitantly enhanced punishment.

The conclusion that the actus reus element set forth in Penal Law § 225.10 (1) cannot be committed except by accepting bets is also supported by the history of the current gambling statutes. The former Penal Law contained two articles and some 54 sections (former Penal Law arts 88, 130), all addressing the "promotion” of gambling by professionals rather than the private acts of individual gamblers (see, Watts v Malatesta, 262 NY 80, 81-83; People v Stedeker, 175 NY 57, 62). Most of the gambling statutes described particularized prohibited conduct and outlawed specific games or schemes. As one commentator has noted, "[t]his resulted in a multiplicity of statutes addressed to different forms of gambling activity, some of them waxing extremely prolix and over-specific in their endeavors to cover every type of act by which one may promote or aid in the promotion of a given type of gambling” (Hechtman, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law art 225, at 112 [1980]).

To remedy this over specificity, the drafters of the current Penal Law created what is now Penal Law § 220.05, which was to define "a basic offense covering almost the entire spectrum of gambling crimes” (Staff Notes of New York State Commission on Revision of Penal Law and Criminal Code, McKinney’s Spec Pamph, at 382 [1964]). The crime delineated in this statute, promoting gambling in the second degree, was intended to be a "general, fundamental section” * 'encompassing] all forms of promotional conduct” (id.). However, the specificity of the former Penal Law was not entirely obliterated. To the contrary, the catchall misdemeanor crime set forth in section 225.05 was intended to be "augmented by a few narrower ones which carried over from the [predecessor provisions]” (Staff Notes, op. cit, at 382).

Included among these carry-over provisions was Penal Law § 225.10 (l)’s felony-level crime of promoting gambling in the first degree, which "substantially restates [former] Penal Law § 986-c” (Staff Notes, op. cit, at 383). Section 986-c provided:

"Any person engaged in book-making to the extent that he receives or accepts in any one day more than five bets or wagers * * *, which bets or wagers shall be of such size that the total of the amounts of money paid or promised to be paid * * * shall exceed five thousand dollars, shall be guilty of a felony” (L 1960, ch 548 [emphasis supplied]).

Since the "corpus delicti” of the crime of bookmaking was accepting bets (People v Abelson, 309 NY 643, 650) and since Penal Law § 225.10 (1) "substantially restates” that crime, it is fair to infer that the restrictive language in the current provisions of section 225.10 (1) was intentional and that accepting bets is the promotional act — and indeed the only promotional act — that the statute was meant to reach.

The majority’s reliance on the duplicative use of the phrase "advancing gambling activity” in both the lead-in language of section 225.10 and the definition of "bookmaking” is puzzling. Regardless of whether or not the "advancing gambling activity” language in section 225.10 (1) is construed as a separate element, the redundancy that concerns the majority remains. In either event, the phrase "advancing gambling activity” is repeated with no apparent substantive purpose. The more likely explanation for the phrase’s redundancy lies in the history of the antigambling laws. Although the original statutory gambling prohibitions were fragmented, they were held together by a common theme: only the promoter of gambling was to be penalized (see, Watts v Malatesta, supra). Since the drafters of the new consolidated statutes sought to preserve this humane principle (see, Staff Notes, op. cit, at 383), they naturally incorporated it into the key definitional provisions as well as the core substantive prohibitory provisions. The result was a degree of harmless duplication with no substantive significance.

It is telling that despite the majority’s extended discussion, its opinion contains no plain statement of what the majority believes the actus reus of the crime to be. The omission is not accidental, since no such statement can be made without betraying the fundamental fallacy in the Court’s holding. Under the majority’s formula, "advancing gambling activity” and "bookmaking” are separate elements. Yet, the distinction between them is elusive at best, since the concept of "advancing gambling activity” is, both logically and by statutory definition, an integral part of the act of bookmaking (see, Penal Law § 225.00 [9]).

Further, if, as the majority contends, "advancing gambling activity” somehow has independent significance and, as here, may be satisfied through acts other than taking bets, the crime of promoting gambling in the first degree would be committed when a person "knowingly advances or profits from unlawful gambling [through conduct other than bookmaking] by [e]ngaging in bookmaking” (see, Penal Law § 225.10 [1]). More specifically, as applied to this case, the majority’s formula would have to be that defendant and his accomplices were guilty of promoting gambling in the first degree because they "knowingly advance[d] * * * unlawful gambling [by placing 'hedge bets’ in Nassau County] by [e]ngaging in bookmaking” (see, id.). Such a linguistically paradoxical outcome cannot have been what the Legislature intended.

It is true, as the People stress, that "advanc[ing] or profit-ting] from unlawful gambling” is something that the People had to prove in order to establish the actus reus element of the crime of promoting gambling in the first degree. However, under CPL 20.40 (1) (a), it is not sufficient that conduct tending to prove an element — or, as in this case, a part of an element— occurred within the County’s borders. Rather, the conduct occurring within the County must be sufficient to establish an entire crime element. Inasmuch as the conduct that occurred here in Nassau County — the placing of "hedge” bets — did not suffice to establish any unitary element of the crime, the indictment for first degree promoting gambling should have been dismissed.

IL

Even if there were a theoretically acceptable factual predicate for Nassau County’s exercise of jurisdiction, the judgment of conviction would have to be reversed and a new trial granted because of the manner in which the geographic jurisdiction issue was submitted to the jury. Incorporating the then-pending conspiracy charge, the trial court told the jury that it could find geographical jurisdiction in Nassau County if the People had proved, by a preponderance of the evidence, either that (1) conduct occurred in Nassau County sufficient to constitute an element of first degree promoting gambling or (2) defendants had conspired with the Nassau County wireroom participants to promote gambling in the first degree and one of the conspirators had committed an overt act in that County (see, CPL 20.40 [1] [a], [b]). It is now undisputed that the second alternative should not have been submitted, since, as the Appellate Division held, there was legally insufficient evidence to establish defendants’ participation in a conspiracy with the Nassau County wireroom operators.

The People contend that the foregoing charge error does not require reversal because it may be assumed that the jury did not predicate its finding of geographical jurisdiction on the theory that was not supported by legally sufficient proof (see, Griffin v United States, 502 US 46). Whatever the validity of that inference in other cases (cf., People v Martinez, 83 NY2d 26, 32-34), however, it has no persuasive force here.

The assumption that the jury must have rejected the theory that was not supported by the evidence is squarely belied in this case by the jury’s own verdict, which found defendants guilty on the conspiracy count. Further, the jury’s reliance on the purported conspiracy as the predicate for its finding on geographical jurisdiction is evident from the sequence of events that the record reveals. Having asked for reinstruction on the geographical jurisdiction issue, the jury was told that it should "consider first the [conspiracy] count” and that if it found defendants guilty on that count "then there exists jurisdiction for the promoting counts.” The jury was also told that "Nassau County has jurisdiction of a crime when conduct occurred within Nassau County sufficient to establish a conspiracy to commit that crime” and that "if you find the conspiracy, then you’ve found, in effect, the jurisdiction for promoting gambling.” Given these instructions, which were followed almost immediately by the jury’s verdict, the most plausible and natural inference is that the jury found jurisdiction for the latter charge because of its erroneous determination that defendants were guilty of conspiracy. Certainly, on this record, we cannot straight-facedly "presume” that the verdict on the geographical jurisdiction question was not the product of the conspiracy theory that was erroneously submitted. Indeed, relying on such a presumption in these circumstances is to elevate a legal construct above common sense, particularly since we know for a fact that this jury did not reject the factually unsupported theory.

Accordingly, there is, in my view, no legal or logical justification for upholding the judgment of conviction for first degree promoting gambling against defendants. Since I also conclude that there is no view of the facts which would support a finding that Nassau County has jurisdiction to prosecute, my vote is to reverse the order of the Appellate Division and dismiss the remaining counts in the indictment.

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

Order affirmed.

      . The indictment actually involved five bookmaking operations in the New York metropolitan area and it charged 13 other individuals with numerous counts of promoting gambling in the first degree. In addition, count 20 of the indictment charged all 16, including defendants, with conspiracy in the fifth degree. The count alleged that all of the individuals charged were engaged in a common scheme and plan to promote gambling in the first degree.
      All these parties pleaded guilty before trial except defendants and codefendants Patsy Capolongo and Edward Pagnotta, Sr., who was a member of the Meacham bookmaking operation. Defendant Capolongo entered a guilty plea during jury selection, and defendant Pagnotta died during the trial. Thus, appellants were the only individuals prosecuted to a jury verdict.

      . The business nature of the activity was demonstrated by evidence that Rothman was on a "half sheet” and ran up a "red figure”, terms meaning that Rothman either maintained credits or debits with the Meacham operation depending on the results of his hedge bets over a period of time.

      . Defendants and the dissenters contend that the rendition of the jury verdict shortly after the supplemental charge compels the inference that jurisdiction for the promoting gambling counts was founded on the supplemental conspiracy instruction. As noted, however, after that instruction but before rendering the verdicts, the jury requested and heard a rereading of the charge on aiding and abetting — a matter relevant to the promoting gambling counts but not the conspiracy count. Thus, it is equally inferable, if not more so, that the jury found jurisdiction for the promoting gambling charges by finding that conduct establishing an element of that crime was committed in Nassau County.

      . Notably, the Appellate Division reversal was expressly based on the insufficient evidence of an agreement, not any failure to prove overt acts in Nassau County.

       The majority’s assertion that Penal Law § 225.10 was merely intended to augment the "core crime” of promoting gambling through the addition of extra aggravating elements (see, majority opn, at 446,447) finds no support in the legislative history and is, in fact, contradicted by the history.