author: Bellacosa, J.

text:
    The People of the State of New York, Respondent, v Gabriel Rodriguez, Appellant.
    Argued January 7, 1987;
    decided February 17, 1987

      POINTS OF COUNSEL

      Lawrence Marks, Philip L. Weinstein and Meira Rosenberg for appellant.

      Mario Merola, District Attorney (Elisa F. Spatola and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Bellacosa, J.

We conclude that defendant has no reasonable or constitutionally recognizable expectation of privacy and, therefore, no standing to seek suppression of evidence seized in an initially warrantless search. The judgment of conviction for one count of criminal possession of drugs in the second degree was rendered upon defendant’s guilty plea after denial of the suppression motion. We affirm the order of the Appellate Division unanimously upholding that conviction.

Defendant was alone in a Bronx apartment, not his own, to which he had gone to purchase drugs. He was sleeping on a sofa bed when he was discovered and arrested. The only other connection he had with this apartment was that he had allegedly stayed over several times before. Indeed, a woman arrested elsewhere earlier in the day for driving without a license and possession of a weapon had informed police that defendant had committed serious felony assaults upon her in the apartment and that there were drugs and guns there. She then brought the police there and let them in with her key. Defendant had previously tried to leave the apartment with a stereo, also not his, but failed because the door had been locked in such a way as to prevent exit from within. When the police entered the apartment, they rousted the defendant from the sofa bed and, noticing a bulge under the bed sheet, discovered a plastic bag containing white powder. The white powder, later determined to be narcotics, was seized and the defendant was arrested shortly after 8:00 p.m. After the arrest, all waited in the apartment while a search warrant was secured, pursuant to which the police discovered narcotics, narcotics paraphernalia and 18 rounds of ammunition in addition to the previously plainly viewed bullets and hypodermic needles scattered around the apartment.

The invocation of the right to be secure against unreasonable searches and seizures (NY Const, art I, § 12; US Const 4th and 14th Amends) and its exclusionary enforcement (Weeks v United States, 232 US 383; Mapp v Ohio, 367 US 643) require personal standing to challenge the government’s action (Alderman v United States, 394 US 165; Rakas v Illinois, 439 US 128; United States v Salvucci, 448 US 83; People v Ponder, 54 NY2d 160).

The focal point of the constitutionally protected interest for purposes of the threshold standing requirement has evolved over many years. Early cases defined the scope of the protection in terms of property interests. The culmination occurred in 1981 when we held that the search and seizure entitlement under our own State Constitution was sufficient if accorded only to those with standing and that there was no reason to apply a more generous standing rule than was allowed under the Federal constitutional standard (People v Ponder, 54 NY2d 160, supra; compare, People v Class, 63 NY2d 491).

Historically, in order to challenge the legality of a search a defendant had to show some possessory or proprietary interest in the property seized or the area searched (Olmstead v United States, 277 US 438). In Jones v United States (362 US 257), the Supreme Court expressed the nature of the interests protected by the Fourth Amendment in terms of privacy: "it is entirely proper to require of one who seeks to challenge the legality of a search * * * that he * * * establish, that he himself was the victim of an invasion of privacy” (id., at p 261). The court then announced that anyone "legitimately on [the] premises” had automatic standing to challenge the legality of the search (id., at p 267; see also, Katz v United States, 389 US 347; Mancusi v DeForte, 392 US 364).

Finally, in Rakas v Illinois (439 US 128, supra), the court refined this analysis into the legitimate expectation of privacy as the initial inquiry used to determine whether a defendant was entitled to claim protection under the exclusionary rule. In so doing the court significantly curtailed application of the "legitimately on [the] premises” test set forth in Jones. "[W]e believe that the phrase 'legitimately on [the] premises’ coined in Jones creates too broad a gauge for measurement of Fourth Amendment rights * * * [T]he holding in Jones can best be explained by the fact that Jones had a legitimate expectation of privacy in the premises he was using” (id., at pp 142-143).

Most importantly, the Rakas court began to define the boundaries of what may constitute a "legitimate” privacy interest. In considering whether the defendant may claim a privacy interest, a court must determine whether a claim of privacy "is reasonable in light of all the surrounding circumstances” (id., at p 152 [Powell, J., concurring]). Among the factors to be considered are whether the individual took precautions to maintain privacy, the manner in which the individual used the premises and whether the individual had the right to exclude others from the premises. The common-law evolution of this doctrine is illustrated by the fact that the old property interest notion is not discarded but rather retained and built upon as one of the factors to be examined in erecting standing. Thus, the extent and nature of an individual’s property interest in a particular place or thing may be considered as one indicator of "society’s explicit recognition of a person’s authority to act as [one] wishes in certain areas” (id., at p 153).

A showing of a possessory or proprietary interest in the item seized by itself, however, is not the determinative factor on the issue of standing (Rawlings v Kentucky, 448 US 98). The number of times a person stays in a particular place, the length and nature of the stay, the indicia of connectedness and privacy, like change of clothes or sharing expenses or household burdens, are all factors which may alone or in combination with other factors support a reasonable expectation of privacy which is protected by the Fourth Amendment (see, People v Farinaro, 101 AD2d 891 [2d Dept]; People v Lewis, 94 AD2d 44 [1st Dept]; People v Van Buren, 87 AD2d 900 [3d Dept]). The burden of demonstrating the factors and their reasonableness to support the legal conclusion is on the defendant (Rakas v Illinois, 439 US 128, 149, supra; People v Ponder, 54 NY2d 160, 166, supra).

The principle that these rights are personal and may not be vicariously asserted (Simmons v United States, 390 US 377) is understandable in view of the underlying purpose of the exclusionary rule. "[T]here is a substantial difference for constitutional purposes between preventing the incrimination of a defendant through the very evidence illegally seized from him and suppressing evidence on the motion of a party who cannot claim this predicate for exclusion * * * The deterrent values of preventing the incrimination of those whose rights the police have violated have been considered sufficient to justify the suppression of probative evidence even though the case against the defendant is weakened or destroyed * * * [W]e are not convinced that the additional benefits of extending the exclusionary rule to other defendants would justify further encroachment upon the public interest in prosecuting those accused of crime” (Alderman v United States, 394 US 165, 174-175, supra).

The expressed dual rationale for granting automatic Fourth Amendment standing to defendants charged with possessory offenses (see, Jones v United States, 362 US 257, supra) has now been rejected (United States v Salvucci, 448 US 83, supra). First, testimony given by a defendant in support of a motion to suppress can ño longer be admitted as evidence-in-chief of guilt of the crime charged (Simmons v United States, 390 US 377, supra). Thus, courts no longer grapple with the dilemma identified in Jones that, in order for a defendant charged with a possessory crime to establish standing, self-incriminating testimony had to be advanced which may be sufficient to convict of the very crime charged. Second, the tautological argument that the "vice of prosecutorial self contradiction” results without automatic standing has lapsed. This premise was that the prosecution had to argue that the defendant did not possess the property for the purpose of rejecting Fourth Amendment standing, while urging that the defendant did possess the goods for the purpose of establishing criminal liability. After Jones, it has become recognized that a prosecutor may simultaneously and consistently urge both points inasmuch as they relate to different juridical objectives (United States v Salvucci, 448 US 83, 90, supra; Rakas v Illinois, 439 US 128, supra).

The constitutional precedents as applied to the particular facts and circumstances of this case frame the inquiry as to whether the defendant had a reasonable expectation of privacy in the Bronx apartment. The evidence produced at the pretrial suppression hearing conclusively establishes that the defendant was a transient who had no indicia of legitimate or recognizable connection to the apartment where he was arrested or any relevant thing in that apartment.

In People v Ponder (54 NY2d 160, supra), the defendant sought to suppress a sawed-off, .22 caliber rifle fourid inside a washing machine in the basement of his grandmother’s hoúse. At the pretrial hearing, the defendant’s grandmbther testified that defendant was one of 30 grandchildren and did not live with her but occasionally spent the night. She also testified that the defendant did not stay in any particular room when he stayed there; that the defendant was not staying at her home when the search was conducted; and that the defendant had never slept in the basement nor used or had any interest in the washing machine. The trial court denied defendant’s motion to suppress and the defendant was convicted. This court upheld the search and the conviction and concluded the defendant could claim no reasonable expectation of privacy in the basement of his grandmother’s house.

The defendant’s relationship with the area searched in this case is even more remote with respect to the reasonable expectation of privacy issue than that found wanting in Ponder. In Ponder, the defendant could at least point to a familial relationship with the owner of the premises. A familial relationship or other socially or lawfully recognized relationships, including house or apartment guests, may be significant factors along with others noted in Rakas (Rakas v Illinois, 439 US 128, 152-153, supra), which may support a standing base for Fourth Amendment protections with respect to persons not technically owners, renters or otherwise entitled to even a temporary possession of particular premises or even rooms or sections of premises.

But there is nothing even remotely close to that in this case, individually or collectively. Instead, we have the opposite. However, it is not the illegality of defendant’s purpose in going to the apartment nor his intended illegal activities while there which, standing alone, deprive him of a reasonable expectation of privacy. Indeed, there may be instances when, with evil motive and conduct, one possesses independently a real, a recognized and a legitimate expectation of privacy in premises and in things which is reasonable and protected against a warrantless search. Here, apart from the defendant’s illegal purpose and enterprise there is a vacuum of reasonable or legitimate indicia of privacy supporting any standing requirements.

The defendant in his own testimony admitted that his only relationship with the Bronx apartment was that his drug supplier resided there. He also testified that he had gone there for the sole purpose of obtaining heroin. His illegal motives alone may not deprive him of standing but neither can they confer standing. To grant defendant standing would mock the law and the principle.

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

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

Order affirmed.


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    In the Matter of the City of Newburgh, Appellant, v Harold Newman et al., Constituting the Public Employment Relations Board of the State of New York, et al., Respondents.
    Argued January 6, 1987;
    decided February 17, 1987

      POINTS OF COUNSEL

      William M. Kavanaugh, Corporation Counsel, for appellant.

      Anthony Cagliostro and Martin L. Barr for Public Employment Relations Board, respondent.

      Richard P. Walsh, Jr., and Michael T. McGarry for Local 589, International Association of Firefighters, AFL-CIO, respondent.
   OPINION OF THE COURT

Simons, J.

The narrow issue presented by this appeal is whether the statutory requirement of compulsory arbitration found in Civil Service Law § 209 (4) applies to "interest” disputes arising during the term of a collective bargaining agreement. We hold that it does.

In 1981, at a time when petitioner City of Newburgh and respondent International Association of Firefighters, AFL-CIO, had in force between them a collective bargaining agreement, the city twice reduced the number of firefighters working each shift. The union acknowledged that the existing agreement authorized the city’s unilateral action but it demanded negotiation of the impact of the reductions, contending that the action created a greater workload for the remaining firefighters and increased the danger to them in the performance of their duties. When the city refused to negotiate, the union filed an improper practice charge with respondent Public Employment Relations Board (PERB). It subsequently withdrew the charge when the city signed a stipulation to negotiate the matter. The parties were unable to resolve the dispute, however, and the union petitioned PERB for relief under Civil Service Law § 209. The city filed a cross petition charging the union with an improper practice, alleging that the reduction in staffing levels was expressly permitted by the existing agreement and that any dispute over the resulting impact had to be settled under the grievance and arbitration procedures of the agreement. PERB dismissed the city’s charge and has now ordered compulsory arbitration pursuant to section 209 (4). The city then commenced this article 78 proceeding challenging PERB’s ruling and after transfer to the Appellate Division that court dismissed the petition. The matter is before us by our leave.

The city’s position is twofold. First, it contends that this is no more than a grievance dispute and, since it has an agreement with the union which provides an arbitration procedure to resolve grievances, section 209 (4) does not apply and the matter must be submitted to arbitration pursuant to the agreement. Second, it contends that even if the statute does apply, the union may not obtain compulsory arbitration of the dispute during the term of the agreement. The union maintains that the present dispute involves a subject not covered by the existing agreement and that it must be settled by collective negotiations. Inasmuch as there is an impasse in the negotiations, it contends that the statutory remedies are available notwithstanding the existing agreement.

Preliminarily, the distinction should be noted between private arbitration which may be compelled because the parties have agreed to arbitrate the subject matter and public arbitration which may be compelled because the Legislature has mandated it under certain circumstances. Because most arbitration agreements limit the powers of arbitrators and prohibit them from adding to, subtracting from or modifying the agreement’s terms, private arbitration generally involves only the settlement of grievances concerning rights recognized by the agreement. The arbitrator is required to interpret and enforce its terms. Interest disputes, however, involve new matters to be settled by the parties through negotiations. Because the subject of the dispute is not governed by an existing agreement, the parties must negotiate to establish future rights, either by execution of a new agreement or by modification of the existing one (see, Elgin, Joliet & E. Ry. Co. v Burley, 325 US 711, 723; and see generally, Elkouri & Elkouri, How Arbitration Works, at 98-117 [4th ed]). Characterized broadly, grievance or rights arbitration seeks adjudication while collective negotiation of interest disputes is more akin to legislation; it settles basic terms and conditions of employment not previously agreed upon. Notwithstanding that interest disputes are normally settled by negotiations between the parties, the Legislature has provided that if an impasse occurs in collective negotiations involving public employees, the remedies of Civil Service Law § 209, including compulsory arbitration in the case of police and firemen, may be invoked.

The agreement in this case expressly authorized the city to reduce manpower but it was silent on the parties’ rights with respect to the impact from such reductions. That being so, there was nothing the union could grieve nor any provision under the agreement an arbitrator could interpret or apply to sustain either the city’s or the union’s position on impact (cf. Matter of Board of Educ. v Yonkers Fedn. of Teachers, 40 NY2d 268). The dispute involved matters not covered by the contract, matters which by statute are subject to collective negotiations, i.e., "wages, hours, and other terms and conditions of employment, or the negotiation of an agreement” (Civil Service Law § 204 [3]; see also, § 201 [4]).

Section 209 provides that an impasse in collective negotiations exists when the parties fail to reach agreement at least 120 days prior to the end of the employer’s fiscal year (CPLR 209 [1]). The statute addresses the means of resolving the impasse in subdivisions (2), (3) and (4). Subdivision (2) provides that municipalities may enter into agreements with certified employee organizations providing procedures to be invoked in the event of an impasse and that in the absence of such an agreement or the failure of its procedures to resolve the impasse, the parties may request, or the Board may on its own motion render, assistance provided in subdivisions (3) and (4) of the statute. Subdivision (4) addresses the remedies for impasse between a municipality and its police or firemen and provides that if arbitration is required the determination of the public arbitrator shall be final and binding on the parties without the approval of the local legislative body or other municipal officials. Thus, subdivision (4) authorizing compulsory arbitration applies whenever there is an obligation to negotiate unless the parties have agreed upon a procedure for resolving impasse in their negotiations and have successfully pursued it.

The parties’ existing agreement provides for arbitration of "any grievance or complaint”. Arguably, that language is broad enough to suggest that these parties might have intended to employ private arbitration to resolve interest disputes. The agreement, however, does not contain any reference, either expressly or by implication, to matters subject to collective bargaining, impasse in the bargaining process, or to the authority granted by section 209 (2) of the statute and it does not include any standards or limitations for the establishment of new rights subject to collective negotiations. In view of these omissions, and considering that collective bargaining is the favored method of resolving interest disputes, the reasonable interpretation of the agreement is that the procedure outlined was intended to apply to grievances involving rights contained in the existing contract and no more (see, Elkouri & Elkouri, op. cit., at 102, 108). Indeed, petitioner recognized as much in 1981 when it executed a written stipulation agreeing to negotiate impact with the union and did so until impasse occurred (see also, Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46, 51-52; Matter of Burke v Bowen, 40 NY2d 264, 268).

Nevertheless, the city contends that even if the existing arbitration clause does not encompass contract arbitration of interest disputes, as permitted by subdivision (2), compulsory arbitration cannot be required under subdivision (4) during the term of the existing agreement; the dispute must be settled by the negotiation of a new contract after the expiration of the present one. The city interprets the statute to read that there is no impasse in negotiations unless the parties fail to reach an agreement 120 days before the expiration of any existing agreement. The Legislature has provided otherwise in unmistakable terms. The statute states that an impasse occurs when the parties fail to reach agreement 120 days before the end of the municipality’s fiscal year. The time is relevant because of the city’s need to anticipate future budgetary needs and allocate its revenues to meet the expenses incurred as a result of resolving impasse. In this case, impasse occurred when the parties failed to reach agreement 120 days before December 31, 1981, the end of the city’s fiscal year, not 120 days before December 31, 1982, the date when the existing agreement expired.

Our construction of section 209 is supported by strong policy considerations. The purpose of article 14 of the Civil Service Law is to foster harmonious and cooperative labor relations in the public sector and to avoid strikes. Section 209 establishes procedures for the resolution of employment disputes after the parties have reached an impasse in their attempt to resolve such disputes by negotiation. This is particularly important in the case of police and firemen because of the safety implications of unresolved labor disputes in those areas of employment. An interpretation of the statute which applies compulsory arbitration to impact disputes arising from a management decision during the term of a contract furthers that purpose because absent the availability of such procedures, a union would be required to assume a collective bargaining position which anticipated all management decisions that might be made during the life of a contract and the impact such decisions would have on terms and conditions of employment. Negotiations over such speculative matters could only impede the bargaining process by provoking bargaining over issues that might never arise.

In sum, we conclude the PERB’s determination was neither irrational, unreasonable nor infected with an error of law. Accordingly, the judgment of the Appellate Division should be affirmed, with costs.

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

Judgment affirmed, with costs.

      The proceedings began with a declaration of impasse and the appointment of a mediator by PERB. The city unsuccessfully challenged that appointment in a prior article 78 proceeding (see, 97 AD2d 258, affd 63 NY2d 793). We affirmed the dismissal of the city’s petition seeking prohibition in that special proceeding because petitioner had not demonstrated a clear legal wrong or that it had no other available avenue of judicial relief (see, 63 NY2d, pp 795-796). That decision does not, therefore, involve the same issue or have any preclusive effect in the present dispute (see, Kaufman v Lilly & Co., 65 NY2d 449, 455).


author: Chief Judge Wachtler.

text:
    The People of the State of New York, Respondent, v Ludwig Boettcher, Appellant.
    Argued January 9, 1987;
    decided February 17, 1987

      POINTS OF COUNSEL

      Vincent A. Malito for appellant.

      Patrick Henry, District Attorney (Patricia A. Harrington and Daniel J. Murphy of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge Wachtler.

The issue presented on this appeal is the nature of the transition instruction, which guides the jury in its consideration of lesser included offenses, to which a defendant is entitled upon request.

At the defendant’s trial on an indictment charging him with operating a motor vehicle while intoxicated as a felony in violation of Vehicle and Traffic Law § 1192 (3) and (5), the People demonstrated that a police officer assigned to a special "Stop DWI” program saw the defendant driving a vehicle leaving a "park and ride” area adjacent to an exit of the Long Island Expressway shortly after 5:00 a.m. on a Saturday morning. The officer saw the car make a wide right turn into the left traffic lane of the service road, and later cross the center dividing line. Upon reaching a stop sign, the car halted for 30 seconds, though there was no other traffic in the vicinity. After making a right turn at the stop sign and then proceeding, the defendant’s car again crossed the center line twice.

The officer stopped the car. The defendant, in response to a request for his license and registration, produced only a registration. The officer observed that his breath smelled of alcohol, his eyes were bloodshot and watery and his speech slightly slurred. Upon alighting from his vehicle, the defendant was unsteady on his feet and swayed back and forth. The officer concluded that the defendant was intoxicated, placed him under arrest and advised him of his rights regarding the taking of a chemical test to determine blood alcohol level, which the defendant refused.

The defendant was taken to the "Stop DWI” trailer and logged in by the desk sergeant, who also concluded, based on his own observations, that the defendant was intoxicated. The arresting officer readvised the defendant of his rights regarding the chemical test, and the defendant again refused.

The defendant presented evidence that his only consumption of alcohol that morning was two drinks between 1 and 2 o’clock, which evidence, it is not disputed, entitled him to an instruction on the lesser included offense of operating a motor vehicle while his ability was impaired by the consumption of alcohol (Vehicle and Traffic Law § 1192 [1]). Defense counsel requested an instruction that the jury could consider the lesser included offense not only if it found the defendant not guilty of the greater, but also if it could "not reach” or was "unable” to reach a verdict on the greater offense. The court denied the request, defense counsel excepted, and the court delivered the following charge:

"Now, under our law most crimes are possible of being separated into lesser included offenses, and under certain circumstances one charged with a certain crime may be convicted of the crime as charged or of a lesser included offense of the crime as charged. Consequently, you will consider the guilt or innocence of the defendant as to the charge of Driving While Impaired, but only if you have first found him to be not guilty of Driving While Intoxicated in accordance with the instructions I have given you.

"If you find that the People have established the guilt of the defendant as to Driving While Intoxicated beyond a reasonable doubt, it is your duty to find the defendant guilty of that crime without considering Driving While Impaired. You would not be justified in finding the defendant guilty of the lesser offense just because you felt that you would rather see some other disposition in the case or because you may dislike to do a disagreeable thing or because of any other reason. There is only one thing that justifies a verdict for a lesser offense, and that is that such lesser offense is established beyond a reasonable doubt and the higher offense is not so established.

"Consequently, you will consider Driving While Impaired only if you find the defendant not guilty of Driving While Intoxicated

* * *

"Your verdict must be unanimous. The same requirement of unanimity is required for you to acquit the defendant as well as to convict him. You must all degree [sic] together to reach either verdict.”

At the conclusion of the charge, defense counsel excepted "to the instruction including the lesser included offense”, but the court declined to amend its instructions. The jury found the defendant guilty of the greater offense of operating a motor vehicle while under the influence of alcohol as a felony, and the court imposed sentence. The defendant appealed to the Appellate Division, claiming the trial court’s instructions to the jury in conjunction with its submission of the lesser included offense was erroneous. That court rejected his contention and affirmed the judgment, and the defendant again appeals pursuant to leave granted by a Judge of this court.

Initially, we reject the People’s contention that we should not reach the alleged error in the instruction regarding the jury’s consideration of the lesser included offense because the jury found the defendant guilty of the greater, and thus had no occasion to consider the lesser, offense. Although, as we have noted, a "court should avoid doing anything * * * that would constitute an invitation to the jury to foreswear its duty and return a compromise or otherwise unwarranted verdict” (People v Mussenden, 308 NY 558, 563), we have recognized, as a practical matter, that the availability of a lesser included offense may affect a jury’s deliberations. Thus, where a court charges the next lesser included offense of the crime alleged in the indictment, but refuses to charge lesser degrees than that, we have noted that the defendant’s conviction of the crime alleged in the indictment forecloses a challenge to the court’s refusal to charge the remote lesser included offenses. For example, in People v Richette (33 NY2d 42, 45-46), where the indictment charged grand larceny in the second degree, of which the defendant was ultimately convicted, and the court charged grand larceny in the third degree as a lesser included offense, but denied a defense request to charge petit larceny as a further lesser included offense, we noted: "Had the jury found the defendant guilty of grand larceny in its third degree, there might be some basis for his claim that he was prejudiced by the court’s refusal to charge petit larceny: it could be asserted that, had the instruction been given, the jury might have returned a verdict of guilt of petit larceny, the still lower degree of larceny. However — to paraphrase what this court wrote in People v. Brown (203 N. Y. 44, 51-52) — such speculations are dispelled by the fact that the defendant was actually found guilty of second degree larceny; when the jury excluded from the case the alternative of grand larceny in the third degree, 'all lower degrees were necessarily eliminated’. (See, also, People v. Granger, 187 N. Y. 67, 73; cf. People v. Reisman, 29 N Y 2d 278, 287-288 [cert denied 405 US 1041].)”

In the present case, by analogy, although the issue is not the court’s refusal to submit a lesser included crime for the jury’s consideration but the nature in which such crime was presented, it appears that the jury’s finding the defendant guilty of the immediately higher crime could have been influenced by the transition instruction of which the defendant now complains, which would not be true had his complaint been about the way in which a more remote degree of crime were presented to the jury.

Having rejected the People’s claim, we now turn to the defendant’s.

In People v Willson (109 NY 345, 357), this court stated the rule regarding when a jury may consider a lesser included offense: "The defendant was charged in the indictment with murder in the first degree, and to that charge he pleaded, and for that charge he was put on trial, and all the evidence was directed to the issue joined upon that charge. It was the duty of the jury first to determine whether he was guilty of that charge or not. That was the primary subject to be investigated, and it was only after they found him not guilty upon that charge that they were authorized, under section 444 of the [former] Code of Criminal Procedure,[] to find him guilty of any inferior degree of homicide.”

The present statute, CPL 300.50 (4) provides: "Whenever the court submits two or more offenses in the alternative pursuant to this section, it must instruct the jury that it may render a verdict of guilty with respect to any one of such offenses, depending upon its findings of fact, but that it may not render a verdict of guilty with respect to more than one. A verdict of guilty of any such offense is not deemed an acquittal of any lesser offense submitted, but is deemed an acquittal of every greater offense submitted.” Unlike its predecessor, CPL 300.50 (4) does not directly address the pivotal problem in this case. The Commission Staff Notes do not explain why different language was chosen when the Criminal Procedure Law was enacted (see, New York Consolidated Laws Service, Book 7B, CPL 300.50, at 536-537), nor do they indicate that any departure from the previous rule was intended. Indeed, we have noted, though in a somewhat different context, that "enactment of present CPL 300.50, although linguistically different from its statutory predecessors, was intended merely to reflect current judicial interpretation of the prior statute” (People v Scarborough, 49 NY2d 364, 369).

Additionally, approval of the "unable to agree” transition charge sought by the defendant would have a deleterious effect on the People, for whose benefit the option of the submission of a lesser included offense was originally created "to prevent the prosecution from failing where some element of the crime charged was not made out” (People v Murch, 263 NY 285, 291). Under such a charge, the jury could convict a defendant of the lesser included offense without actually having found him not guilty of the greater. And, regardless of the jury’s actual findings or lack of findings regarding the greater offense, the defendant would be deemed not guilty of its commission (CPL 300.50 [4]), and a retrial on the greater offense would be barred under settled double jeopardy principles (Green v United States, 355 US 184, 190-191; People v Ressler, 17 NY2d 174, 179-181; Pitler, New York Criminal Practice under the CPL, at 667-668; see also, discussion at 1 CJI [NY] 14.04 p 745). However, as discussed above, established precedent suggests that a contrary policy should prevail: that the People should not be precluded from retrying a defendant on the greater offense unless a jury actually finds him innocent of that charge.

We are aware, of course, of recent Federal cases holding that a defendant is entitled to an "unable to agree” transition charge upon timely request (United States v Tsanas, 572 F2d 340 [2d Cir], cert denied 435 US 995; see also, United States v Roland, 748 F2d 1321 [2d Cir]; United States v Jackson, 726 F2d 1466 [9th Cir]; Pharr v Israel, 629 F2d 1278 [7th Cir] [dictum], cert denied 449 US 1088; cf. Catches v United States, 582 F2d 453 [8th Cir]). However, the Federal rule upon which those cases are based does not, as does CPL 300.50 (4), automatically deem a conviction of a lesser offense an acquittal of the greater for double jeopardy purposes (though that will usually be the result under the doctrine of implied acquittal [Green v United States, supra; 8A Moore’s Federal Practice U 31.03 (4)], and it has accordingly been noted that the application of the doctrine effectively enlarges the scope of a defendant’s double jeopardy rights [Ettinger, In Search of a Reasoned Approach to the Lesser Included Offense, 50 Brooklyn L Rev 191, 221, 223-224]).

More importantly, however, we reject Tsanas (supra) and its progeny because they give insufficient weight to the principle that it is the duty of the jury not to reach compromise verdicts based on sympathy for the defendant or to appease holdouts, but to render a just verdict by applying the facts it finds to the law it is charged (People v Mussenden, 308 NY 558, 562, supra). It is no doubt true, as we have noted in the past, that in jury rooms, as well as all other deliberative bodies, some strong members are able to impress their will upon the weaker (People v De Lucia, 20 NY2d 275, 278); but acknowledgment of the imperfection of human nature is quite a different thing from the creation of an environment conducive to such behavior. For the same reason, we must reject the defendant’s contention that the Tsanas charge promotes efficient use of judicial resources by obviating the need for protracted deliberations when a jury becomes deadlocked on the top count by providing a lesser included offense upon which a compromise can be reached.

In the present case, the trial court’s rejection of the defendant’s request to charge, and its instruction to the jury to consider the lesser included offense only upon reaching a unanimous verdict of not guilty of the greater, were correct. Accordingly, the order of the Appellate Division should be affirmed.

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

Order affirmed.

        .The Appellate Division found the defendant’s other contentions either unpreserved for review or without merit, and did not discuss them. We agree with that coürt, and also reject without discussion the defendant’s remaining assignments of error.

      .Section 444 of the former Code of Criminal Procedure provided in relevant part: "Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto”.

      .It is now recognized that the availability of a lesser included offense may be advantageous to the defendant, as well (e.g., People v Mussenden, 308 NY 558, 562).

      .That rule is Federal Rules of Criminal Procedure, rule 31 (c), which provides: "(c) Conviction of less [sic] offense. The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.”

      .Other courts have also rejected the "unable to agree” option for transition charges for various reasons. Examples are State v Wussler (139 Ariz 428, 679 P2d 74, 76 [collecting cases]) and Dresnek v State (697 P2d 1059 [Alaska App], affd on opn below 718 P2d 156 [Alaska]). In addition, though its courts apparently have not yet addressed the issue, the California Jury Instructions — Criminad (4th ed) also require a unanimous verdict of not guilty of the greater crime before the jury may consider any lesser included offense (see, CALJIC 17.10 [1984 rev], supp at 66; CALJIC 17.12 [1984 rev], supp at 69 ["you must unanimously agree that the defendant is not guilty of the greater offense before you may find the defendant guilty or not guilty of any lesser offense. If you are not able to unanimously agree on the greater offense, your foreman shall report such fact to the court”]).

      .People v Baker (109 AD2d 348) and Matter of Kitt v Haft (99 AD2d 942, appeal dismissed 63 NY2d 677, lv denied 63 NY2d 606), to the extent that their holdings are inconsistent with this decision, as well as so much of the instruction in 1 CJI (NY) 14.05 as gives the defendant the "unable to agree” transition charge option, are disapproved.


author: Simons, J. Bellacosa, J.

text:
    The People of the State of New York, Appellant, v James Booden, Respondent.
    Argued January 9, 1987;
    decided February 19, 1987

      POINTS OF COUNSEL

      Stephen R. Sirkin, District Attorney (Daniel G. Barrett of counsel), for appellant.

      Frank R. Webster for respondent.
   OPINION OF THE COURT

Simons, J.

Defendant was convicted after a nonjury trial in the Walworth Town Court of operating a motor vehicle while his ability was impaired by the consumption of alcohol (Vehicle and Traffic Law § 1192 [1]). The conviction arose out of an incident which occurred at approximately 3:00 a.m. on July 20, 1985 when a westbound vehicle owned by defendant’s father left Route 441 and came to rest in a ditch on the north side of the highway facing east. When the investigating officer reached the scene of the accident, he found defendant and two companions, a male and a female, standing beside the vehicle. When asked who had been driving the vehicle, defendant responded that he had been driving westbound, that a deer had jumped in front of him, and that he had driven into the ditch when he swerved to avoid the deer. Defendant then identified himself by producing his driver’s license. The officer testified that he smelled alcohol on defendant’s breath and that his appearance and conduct indicated he was intoxicated. The officer gave defendant a field sobriety test and, when he failed the test, he was arrested and taken to the police barracks where a breathalyzer test was administered. The test indicated that defendant had a blood alcohol level of .08%.

On appeal, County Court reversed the judgment and dismissed the information, finding defendant’s admission had not been sufficiently corroborated. The matter is before us by leave of a Judge of this court.

CPL 60.50 provides that a person may not be convicted of an offense "solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.” The section does not require corroboration of confessions or admissions in every detail, but only "some proof, of whatever weight”, that the offense charged has in fact been committed by someone (People v Daniels, 37 NY2d 624, 629; see also, People v Cuozzo, 292 NY 85; People v White, 176 NY 331). Its purpose is to avoid the possibility that a crime may be confessed when, in fact, no crime has been committed (People v Lipsky, 57 NY2d 560, 570, quoting People v Reade, 13 NY2d 42; and People v Lytton, 257 NY 310). The requirements of the rule are not rigorous and sufficient corroboration exists when the confession is "supported” by independent evidence of the corpus delicti (see, People v Safian, 46 NY2d 181, 187, cert denied sub nom. Miner v New York, 443 US 912; cf. People v Brasch, 193 NY 46, 60-65; People v Jaehne, 103 NY 182, 199-200). The necessary additional evidence may be found in the presence of defendant at the scene of the crime, his guilty appearance afterward, or other circumstances supporting an inference of guilt (see, People v Cuozzo, supra, p 92; People v Reade, supra, p 46; and see, 7 Wigmore, Evidence § 2071, at 511 [Chadbourn rev]). Corroboration existing, the evidence as a whole must, of course, establish guilt beyond a reasonable doubt.

There was sufficient corroborative evidence in this case that the offense of driving while impaired had been committed on the evening in question. The vehicle owned by defendant’s father was found in a ditch, facing in the wrong direction of travel; the pavement of the highway was dry, negativing suggestions of an accidental skid; defendant and his companions were standing next to the vehicle when the investigating officer arrived and, when defendant and his companions were asked who had been driving the vehicle, defendant volunteered to answer the question and produced his identification, indicating by his conduct that he was the driver. The officer noticed that defendant exhibited outward signs of intoxication and his breath smelled of alcohol. The circumstances of the accident may have been capable of innocent explanation, but they nonetheless supported an inference that a crime had been committed because the vehicle had been driven by a person under the influence of alcohol. Defendant’s admission was the "key” that explained those circumstances and established defendant’s connection to the criminal act (see, People v Lipsky, 57 NY2d 560, 571, supra; People v Brasch, 193 NY 46, 60-61, supra; People v Jaehne, 103 NY 182, 199-200, supra).

Accordingly, the order of the County Court should be reversed, the judgment of Walworth Town Court reinstated, and the case remitted to Wayne County Court for consideration of the facts.

Bellacosa, J.

(dissenting). I would affirm the County Court’s dismissal of the driving while impaired charge because the corroboration requirement of CPL 60.50 has not been satisfied in this case.

My difference of view from the majority is very simply stated. The statute says there must be some additional proof of the commission of a crime other than a defendant’s confession or admission (CPL 60.50). While that safeguard, designed essentially to protect unfortunate individuals from their own criminal fantasies, calls for the tiniest corroborative proof among the varieties of corroboration (People v Daniels, 37 NY2d 624, 629; Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 60.50, p 678), it does require something relevant and additional. The majority, with respect, applies the facts and evidence in this case in such a way as to render that statutory safeguard ineffectual.

The crime here is drunk driving. The essence or corpus delicti of that crime is, not surprisingly, "driving while drunk” or, technically, driving while ability is impaired.

In addition to the defendant’s admission to the police officer at the scene, upon being asked who the driver was (he did not volunteer the information), we have presented to us only these utterly equivocal innocent facts: the defendant and two other persons, a male and female, were standing beside a car in a ditch off the road facing the opposite direction and the car was registered to the defendant’s father. I am unable to see how those facts blown together in some amorphous mist constitute anything close to the crime of drunk driving by anyone, no less by this defendant. The number of noncriminal inferences and hypotheses arising from that mist is almost limitless as any experienced driver or even law enforcement professionals will attest. The specific inference that this particular crime, driving while impaired, was committed by anyone has not been independently proven. This recognizes that the People do not have to prove that this defendant was the driver, as that is not an element that needs to be corroborated in this instance. That such a crime could have been committed I will concede, but that is not enough and that is not what the statute demands.

We applied these principles very plainly with respect to the predecessor statute in distinguishing weight of evidence from sufficiency of evidence for purposes of this very corroboration rule (People v Cuozzo, 292 NY 85, 93-95). Also, the majority’s misplaced emphasis on People v Lipsky (57 NY2d 560) is answered and distinguished simply by the fact that there the prosecution independently and circumstantially proved the criminal agency and the homicide, the corpus delicti of that crime, even though the human body was never found.

This court should not be deterred from applying this procedural prophylaxis according to the plain meaning of the statute just because the prosecution’s burden in many of these cases might be made more difficult. Indeed, the publicly and statutorily induced campaigns for rigorous enforcement of drunk driving offenses, laudable as they are, require a proportionate and judicious neutralization against excessive zeal at the expense of the rights of those affected with potentially serious criminal and even felony prosecutions and records. I am confident that law enforcement officials will be able to enforce properly not only the new and more serious drunk driving laws but also can concomitantly safeguard the procedural rights of all citizens affected by all these laws. In my view, the majority’s application of the facts of this case deprives defendant of the protection afforded by CPL 60.50.

Accordingly, I respectfully dissent and vote to affirm the dismissal of the charge by the County Court in its role as an intermediate appellate court.

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone and Hancock, Jr., concur with Judge Simons; Judge Bellacosa dissents and votes to affirm in a separate opinion.

Order reversed, etc.


author: Kaye, J.

text:
    Dynamics Corporation of America, Appellant, v Marine Midland Bank-New York, Respondent.
    Argued January 13, 1987; decided
    February 19, 1987

      POINTS OF COUNSEL

      Robert W. Gottlieb, Roberta Z. Bertrand and Dorothy Heyl for appellant.

      John W. Dickey, Bruce E. Clark and Robinson B. Lacy for respondent.
   OPINION OF THE COURT

Kaye, J.

In this damages action by Dynamics Corporation of America (DCA) against Marine Midland Bank (Marine) for misconduct purportedly precipitating DCA’s bankruptcy the issue is whether, following confirmation of its plan of arrangement, DCA in its own right can pursue claims against Marine which were not disclosed in its schedules filed with the bankruptcy court. We agree with the courts below that, in the circumstances presented, it cannot.

As set forth in the second amended complaint, DCA and Marine had a long-standing banking relationship, with Marine administering DCA’s pension funds and stock transfer operations as well as providing funds for its acquisition program. In addition, DCA maintained a checking account with Marine; by written agreement the bank was authorized to collect checks that had been delivered to a post-office lockbox and deposit them in DCA’s account.

In August 1972, DCA initiated proceedings under chapter XI of the Bankruptcy Act. Marine was one of the DCA’s major creditors in the bankruptcy. In November 1974, having been accepted by the requisite number of creditors and found to be in the best interest of the creditors, DCA’s proposed plan of arrangement was confirmed by the Bankruptcy Court of the Southern District of New York, the creditors accepting approximately 31 cents for each dollar owed.

Barely eight months later, in July 1975, DCA in its own right commenced the present action against Marine for more than $70 million in damages, charging that beginning in 1970 Marine instigated a conspiracy to destroy DCA’s business. DCA alleged that Marine, in concert with its other lenders, forced a restructuring of its short-term debt, with the notes evidencing DCA’s bank borrowings falling, due on a common maturity date every 30 days. The last note issued by DCA to Marine, in the amount of $4,420,000, was dated June 28, 1972 and came due July 28, 1972. According to the complaint, Marine made repeated representations that the loan would be renewed as it had been in the past. DCA alleged that it relied on these representations and therefore made no efforts to secure financing from other sources, but that without its knowledge Marine had transferred the loan to its classified loan section with instructions that the loan be called when the note matured. The complaint further alleges that, although the loan was not in default until the close of business July 28, Marine appropriated the balance of DCA’s checking account and the uncollected checks from DCA’s lockbox at 10:30 a.m. that day and then notified DCA’s other lenders who immediately seized assets in their possession. DCA claims that as a result it was compelled to file its petition in bankruptcy court.

Essentially three categories of misconduct are alleged: breach of agency and contract in connection with the lockbox; fraud and negligent misrepresentation in failing to renew the loan; and improper offsets against the loan prior to maturity.

Applying the rationale of Stein v United Artists Corp. (691 F2d 885), Supreme Court, New York County (Gammerman, J.), granted Marine’s motion for summary judgment dismissing the complaint on the ground that DCA, as a discharged chapter XI debtor, cannot, in a subsequent plenary action brought in its own behalf, pursue (1) claims it failed to include in its filed schedule of assets about which it knew or should have known, or (2) unscheduled claims which were not "dealt with” in the bankruptcy proceeding within the meaning of the Bankruptcy Act (see, 128 Mise 2d 739). The Appellate Division affirmed for the reasons stated at Special Term. We granted leave to appeal and now affirm.

DCA undisputedly failed to disclose the claims in issue in its schedule of assets. Nonetheless, DCA urges that it never lost title to these claims, and can pursue them in this action because the claims were not fraudulently concealed but were omitted innocently. Additionally, DCA argues that it may assert its fraud claim because it did not accrue until after the company had emerged from chapter XI, and that it is entitled to pursue its "lockbox” causes of action because they were dealt with during the bankruptcy. These arguments are without merit.

Chapter XI of the Bankruptcy Act established a statutory procedure for voluntary reorganizations, permitting a debtor— under court supervision — to negotiate and propose a plan for the composition of its unsecured debts and liabilities, meanwhile continuing to operate its business. Filing of a petition vests the bankruptcy court with exclusive jurisdiction of the debtor and its property, wherever located.

Central to a proceeding under chapter XI is the requirement that a debtor file with the bankruptcy court comprehensive schedules of its assets (Bankruptcy Act § 7 [a] [8]; § 302, 11 USC § 25 [a] [8]; § 702 [1976]; former Bankruptcy rules 108, 109; former chapter XI rule 11-11; see also, 1A Collier, Bankruptcy 7.08-7.12, at 981-996.8 [14th ed]). The tangible and intangible property then owned by the debtor and set forth in the filed schedules represent the estate of the debtor available for distribution. The requirement of disclosure includes "[unliquidated claims of every nature, with their estimated value.” (Official Form No. 1, Schedule B-3, Item [c] [305 US 717, 726]; Official Form No. 48 [368 US 1063, 1064].) The schedules can be amended at any time during the proceeding (see, 1A Collier, Bankruptcy ft 7.12, at 996.7-996.8). Such disclosure allows the bankruptcy court and the creditors to determine whether the claims should be pursued on the creditors’ behalf. (DCA in fact filed descriptions of 16 claims, none against Marine.)

Where a trustee is appointed, as for example in a chapter X proceeding, claims for injury to property, such as tort claims of a debtor, vest in the bankruptcy trustee (see, Bankruptcy Act § 70 [a] [6], 11 USC § 110 [a] [6] [1976]). Where no trustee is appointed, as in a chapter XI proceeding, those claims reside in the debtor-in-possession, whose powers and responsibilities are in a sense akin to those of a trustee appointed by the bankruptcy court (see, Bankruptcy Act § 342, 11 USC § 742 [1976]; Stein v United Artists Corp., 691 F2d 885, 890, 892, supra; 8 Collier, Bankruptcy W 6.30-6.32, at 916-931 [14th ed]; see also, Case v Los Angeles Lbr. Co., 308 US 106, 125-126; Weiss v Fleetwood Bank, 261 App Div 572, 574-575).

The only property that may revest in the debtor in its individual capacity at the conclusion of the proceeding is property that was "dealt with” in the bankruptcy (Bankruptcy Act § 70 [i], 11 USC § 110 [i] [1976]; 8 Collier, Bankruptcy If 6.31, at 927; 9 Collier, Bankruptcy f[ 9.33, at 440-442) or abandoned (Stein v United Artists Corp., supra, pp 890-892; Matter of Haupt & Co., 398 F2d 607, 612-613; Kraftsman Container Corp. v Finkelstein, 461 F Supp 245, 252, n 7; Lapis Enters. v International Blimpie Corp., 84 AD2d 286, 289-290; 4A Collier, Bankruptcy If 70.42, at 501-516 [14th ed]). Property can be "abandoned” only where the trustee or the debtor-in-possession knows of it and manifests an intent to abandon it, inasmuch as revesting depends upon the fact that it has been consciously rejected or relinquished as part of the estate (see, Note, Abandonment of Assets by a Trustee in Bankruptcy, 53 Colum L Rev. 415, 415-425; see also, First Natl. Bank v Lasater, 196 US 115, 119; Stephan v Merchants Collateral Corp., 256 NY 418, 422). By the same token, property is "dealt with” when it has been listed in the debtor’s schedule of assets, administered by the bankruptcy court for the benefit of creditors, and not otherwise affected by the ultimate plan of arrangement involving the debtor’s other assets (see, Stein v United Artists Corp., supra, p 893; Kraftsman Container Corp. v Finkelstein, supra, p 252; see also, In re Southland Supply, 657 F2d 1076, 1078, n 1).

DCA does not argue that its unscheduled claims revested under the doctrine of abandonment. Thus, whether the present claims revested in DCA at the conclusion of the proceeding depends on whether they were "dealt with” in the proceeding. However, the causes of action DCA now seeks to pursue for itself were not disclosed during the bankruptcy; they were not listed in its filed schedules of assets, and they did not become part of the bankruptcy estate available for administration for the benefit of the unsecured creditors. These claims, therefore, were not "dealt with” within the meaning of section 70 (i) of the Bankruptcy Act. This conclusion pertains equally to all of DCA’s present causes of action, including the lockbox causes of action.

DCA urges that these principles should not apply because it did not learn of its fraud or improper offset causes of action until after the chapter XI proceeding had ended. To support this position, however, DCA has presented only conclusory assertions, insufficient alone to defeat a motion for summary judgment (see, Zuckerman v City of New York, 49 NY2d 557, 562). DCA has presented no evidentiary material sufficient to raise, as a triable issue of fact, that it knew or should have known of its claims against Marine at a time other than just prior to filing its petition in chapter XI. To the contrary, the evidentiary material in the record, detailing the pattern of events leading up to its recourse to bankruptcy court, establishes that DCA possessed sufficient information to have disclosed these causes of action as unliquidated claims in its schedule of assets. These claims, therefore, should have become part of the bankruptcy estate to be administered for the benefit of DCA’s unsecured creditors. Having failed to disclose the claims, so that they might be "dealt with” in the bankruptcy, DCA cannot now pursue them individually in this action.

That DCA may have innocently failed to schedule as unliquidated claims the causes of action it now seeks to pursue is immaterial. In chapter XI proceedings where the debtor continues as a debtor-in-possession, assuming a special status, a separate mechanism for discovering unlisted claims or other assets is typically absent. Without a rule precluding such a debtor from later pursuing claims about which it knew or should have known at the time of filing its petition, a debtor-in-possession might employ less than diligent efforts to ascertain and disclose all potential claims, thus undermining its obligation to the estate and prejudicing the interests of the unsecured creditors (Stein v United Artists Corp., supra, p 892). DCA’s reliance on Stephan v Merchants Collateral Corp. (256 NY 418, supra) and First Natl. Bank v Ldsater (196 US 115, supra) is misplaced. Those cases held that title to an unscheduled claim does not revest with the debtor following the conclusion of a bankruptcy proceeding simply because the trustee took no action with respect to it; the trustee, having had no knowledge of the claim, could not be deemed to have "abandoned” it (see, Stephan v Merchants Collateral Corp., supra, p 422; First Natl. Bank v Lasater, supra, p 119, quoted in Stephan v Merchants Collateral Corp., supra). Neither case is limited to instances in which the debtor has intentionally or fraudulently withheld such knowledge.

Whatever other remedy might be available, for example in the bankruptcy court, DCA cannot pursue this individual action against Marine. In light of this disposition we do not reach Marine’s additional contentions that it should have summary judgment because DCA incurred no damages, or because DCA is estopped from asserting claims inconsistent with its position taken in the bankruptcy court.

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

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

Order affirmed, with costs.

      .Bankruptcy Act of July 1, 1898, ch 541, 30 US Stat 544 (formerly codified as amended at 11 USC §§ 1-1103 [1976]), repealed by Act of November 6, 1978, Pub L 95-598, tit IV, § 401 (a), 92 US Stat 2549, 2682 (1978). Chapter XI was added to the Bankruptcy Act by the Chandler Act of 1938, Pub L 75-696, §§ 301-399, 52 US Stat 840, formerly codified at 11 USC §§ 701-799 (1976).

      .Section 70 (i) of the Bankruptcy Act provides, in relevant part, that: "Upon the confirmation of any arrangement or plan, or at such later time as may be provided by the arrangement or plan, or in the order confirming the arrangement or plan, the title to the property dealt with shall revest in the bankrupt or debtor”.

      .Both Danciger & Emerich, Oil Co. v Smith (276 US 542) and Rand v Iowa Cent. Ry. Co. (186 NY 58), heavily relied on by DCA, arose prior to the Chandler Act of 1938. Neither case involved a proceeding under chapter XI where the debtor — such as DCA — assumed the statutory role of a debtor-in-possession.


text:
    Edward J. Alweis et al., Respondents, v Herbert B. Evans, as Chief Administrator of the Courts, et al., Appellants.
    Argued January 15, 1987;
    decided February 19, 1987

      POINTS OF COUNSEL

      Megan Tallmer and Michael Colodner for appellants.

      Earl P. Boyle for respondents.
   OPINION OF THE COURT

Kaye, J.

Two sections of the Judiciary Law are brought under scrutiny by this appeal, both apparently governing whether court reporters should be compensated for stenographic transcripts requested by Judges for their own use. Judiciary Law § 299 requires that such transcripts be furnished free of charge, and Judiciary Law § 302 provides that stenographers are entitled to fees. Plaintiffs (senior court reporters in the Fifth Judicial District) challenge directives issued by defendants-appellants (the Chief Administrator of the Courts and the District Administrative Judge) to the effect that transcripts ordinarily be ordered for free pursuant to section 299, premising their challenge, first, on the lack of continuing viability of section 299 and, second, on unconstitutional deprivation of property. We conclude, contrary to the Appellate Division, that section 299 is neither repealed nor illegal, and we therefore reverse the Appellate Division order and grant judgment to defendants.

Following enactment of the Unified Court Budget Act of 1976 (Judiciary Law § 39), approximately 8,500 locally paid court employees were transferred to the State payroll, and a uniform classification plan was adopted. Consistent with this plan, senior court reporters are generally responsible for recording testimony in certain courts, preparing transcripts and providing them to interested parties, and other related duties. Senior court reporters, in addition to their salaries and benefits as State employees, receive compensation from the private sale of transcripts recorded in their official capacity. What is principally in issue in this action is neither the privately sold transcripts nor the statutorily mandated transcripts, but transcripts furnished to Judges at their request, for their own use.

Shortly after the State assumed responsibility for costs, concern was expressed over rising transcript fees. In response, the Office of Court Administration asked Judges to order transcripts for their own use under Judiciary Law § 299 whenever possible, and to limit requests under Judiciary Law § 302 to daily and expedited copy, plea minutes pursuant to Penal Law § 70.02 (5) (c) and sentencing minutes pursuant to CPL 380.70. Implementing this request, on May 12, 1981 the Administrative Judge for the Fifth Judicial District (defendant William R. Roy) issued the following directive:

"All judges and justices in the Fifth Judicial District are encouraged not to require transcripts of civil or criminal proceedings.
"If a transcript is required, it will be ordered without charge to the State pursuant to § 299 of the Judiciary Law. The State will continue to pay for sentencing minutes pursuant to § 302 of the Judiciary Law until further notice.”

On September 11, 1981, a second memorandum advised:

"From now on invoices for stenographic services will be processed under the following rules * * *
"5. Under no circumstances will reporters be paid for Minutes, requested by or supplied to a judge of any court except Sentencing Minutes as set out in my memorandum of May 12, 1981.”

Although the directives specified only sentencing minutes, it is undisputed that the Judges, and the plaintiffs, have been informed that payment may be provided as well for daily or expedited transcripts and plea minutes.

Plaintiffs — 12 senior court reporters — commenced this action for a declaratory judgment that Judiciary Law § 299 is void and defendants’ directives illegal, and for damages and an injunction. On plaintiffs’ motion for summary judgment, Supreme Court, Monroe County, held that the two statutes are not in conflict and that section 299 is constitutional, but sua sponte concluded that the various directives impermissibly interfered with the discretion of Trial Judges in ordering transcripts. The Appellate Division reversed, holding that sections 302 and 299 could not be reconciled and that section 299 was impliedly repealed. We granted leave to appeal and now reverse.

Judiciary Law § 299 is derived from section 85 of the Code of Civil Procedure, the Throop Code (L 1876, ch 448, § 85). Except for minor modifications relevant to this action only because they were made, section 299 is today virtually identical to section 85 of the Code of Civil Procedure (L 1909, ch 35; L 1941, ch 290, § 20; L 1945, ch 649, § 149 [renum]; L 1962, ch 695, §21).

Section 302 is derived from section 86 of the Code of Civil Procedure (L 1876, ch 448, § 86). In material part it originally provided: "If the district-attorney or the Attorney-General requires such a copy, in a criminal cause, the stenographer is entitled to his fees therefor”. In their inception, the two sections were consistent on their face — section 85 (now § 299) applying to the Judges’ transcripts, which were free, and section 86 (now § 302) pertaining to transcripts furnished other parties, for which fees might be imposed. However, section 302 has undergone two significant amendments, giving rise to the present difficulty. First, an apparent inconsistency was introduced in 1906, when section 86 was enlarged to include "the judge presiding at a trial in a criminal cause” (L 1906, ch 388). Second, in 1936, the section was again expanded to specify that stenographers are entitled to fees for Judges’ copies in civil as well as criminal cases (L 1936, ch 165, § 1). Minor modifications were thereafter made to section 302, as they were to section 299 (L 1941, ch 290, § 22; L 1945, ch 649, § 151 [renum]; L 1962, ch 310, § 228; L 1962, ch 695, § 22; L 1962, ch 889, § 2; L 1964, ch 960, § 5).

The nub of plaintiffs’ argument, accepted by the Appellate Division, is that the 1936 amendment of what is now section 302 — providing that the stenographer is entitled to fees for transcripts furnished to Judges in civil as well as criminal cases — impliedly repealed what is now section 299 because it left the two statutes in irreconcilable conflict. We cannot agree.

Repeal by implication is distinctly not favored in the law. Obviously, the judiciary should not lightly infer that the Legislature has repealed one of its own enactments when it has failed to do so expressly; the Legislature is hardly reticent to repeal statutes when it means to do so. Generally, a statute is deemed impliedly repealed by another statute only if the two are in such conflict that it is impossible to give some effect to both. If a reasonable field of operation can be found for each statute, that construction should be adopted (see, Ball v State of New York, 41 NY2d 617, 622; People v Newman, 32 NY2d 379, 389, cert denied 414 US 1163; Matter of Board of Educ. v Allen, 6 NY2d 127, 141-142; Cimo v State of New York, 306 NY 143, 148-149; Peterson v Martino, 210 NY 412, 418; McKinney’s Cons Laws of NY, Book 1, Statutes § 391). These principles apply with particular force to statutes relating to the same subject matter, which must be read together and applied harmoniously and consistently (Matter of Guardian Life Ins. Co. v Chapman, 302 NY 226, 231; Matter of Schriro v New York State Teachers’ Retirement Bd., 63 AD2d 751). Moreover, as to statutes enacted in a single legislative session, there is a presumption against implied repeal; the Legislature would hardly repeal a fresh enactment without doing so expressly (see, County of Saratoga v Saratoga Harness Racing Assn., 4 NY2d 622, 627; McKinney’s Cons Laws of NY, Book 1, Statutes § 393). The same may be said of amendments made by the Legislature to two statutes in the same session.

Legislative intent is of course paramount in determining whether there has been implied repeal of a statute (McKinney’s Cons Laws, Book 1, Statutes § 392). Here, there is no clear evidence that the Legislature intended to repeal section 299. The Legislature’s continuing amendment of an allegedly superseded law would strongly indicate that there is no intent to repeal it (see, Carroll v McArdle, 216 NY 232; Matter of Westchester Light. Co. v Sewer Commrs., 219 App Div 377, 381). Section 299 has been amended several times since 1936. Significantly, amendments to section 299 have been contained in the very same chapter as amendments to section 302, indicating the Legislature’s recognition of the continuing viability of both statutes. Thus, the evidence of legislative intent speaks against plaintiffs’ contention: since 1936, section 299 has both been amended by the Legislature and applied by the courts to transcripts ordered by Judges (see, Matter of Miceli v Seward, 55 AD2d 96; Matter of Bergold, 37 Misc 2d 719).

Moreover, a reasonable field of operation can be found for each statute.

While in a different context, this court in Moynahan v City of New York (205 NY 181) suggested the means to harmonize both statutes. In Moynahan, which arose before the 1906 amendment of section 86 (now § 302) permitting fees for transcripts furnished to Judges in criminal cases, the locality responsible for court expenses refused to pay for daily copy of a criminal trial transcript that had been ordered by the Judge. This court concluded that, while there was no statutory authority for payment, the Trial Judge had inherent authority under section 85 (now § 299) to order daily copy, but in such a case the stenographer was entitled to be paid for the extraordinary efforts necessitated by the request. The court explained that section 85 applied "where the stenographer at his reasonable convenience and under ordinary circumstances after a case has been closed, writes out his minutes and furnishes a transcript thereof, and it should not be held to require a stenographer to furnish without compensation a daily copy under a much greater strain and at much larger expense than would be incident to writing out minutes at his leisure. Therefore, if a judge presiding at a trial felt it necessary to have a transcript from day to day a stenographer would be entitled to reasonable compensation because of the greater work and greater expense incurred in providing such copy.” (Id., at pp 189-190.)

Significantly, the distinction drawn in Moynahan concerned not the nature of the action — civil or criminal — but the nature of the transcript ordered, and the required extraordinary service involved in daily copy. We underscored that "[a]s indicating public appreciation of the necessity liable to arise for possession from day to day of a transcript of the evidence by the presiding judge in a criminal case, it is to be noted that the statute now removes any question concerning his right thereto by providing that the same shall be supplied at public expense.” (Id., at p 190.)

Thus, where Judges request transcripts imposing the extraordinary demand of daily or expedited copy, compensation at public expense is contemplated by section 302. Correlatively, where regular transcripts are in issue — those which can be supplied under ordinary circumstances after the conclusion of the proceedings — section 299 requires that they be furnished without charge. This distinction suggested by Moynahan leaves a field of operation for each statute. Given that there has been no express repeal, that the Legislature has evidenced its intent to keep both sections alive by continuing to amend both, and that some separate field of operation can be found for each, we conclude that Judiciary Law § 299 remains viable, and that the various communications in issue relating to free transcripts are within its scope.

Nor can we agree with the courts below that there has been either an unconstitutional or an impermissible usurpation of authority by defendants. On our reading of sections 299 and 302 of the Judiciary Law, it is the statutes and not the defendants that direct when stenographers should receive additional compensation for Judges’ transcripts. No other contention is before us on this appeal.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court, Monroe County, for entry of a declaratory judgment in accordance with this opinion.

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

Order reversed, etc.

      ."§ 299. Stenographers must furnish gratuitously copies of proceedings to judges

      "Each stenographer * * * must, upon request, furnish, with all reasonable diligence and without charge, to the judge holding a term or sitting, which he has attended, a copy written out at length from his stenographic notes, of the testimony and proceedings, or a part thereof, upon a trial or hearing, at that term or sitting. But this section does not affect a provision of law authorizing the judge to direct a party or the parties to an action or special proceeding, or the county treasurer, to pay the stenographer’s fees for such a copy.”

      . "§ 302. Stenographers must furnish copies of proceedings.

      * ** *
      "2. In any civil or criminal case, if the district attorney, the attorney-general or the judge presiding at trial, or any appellate court or judge thereof, requires such a copy, the stenographer is entitled to fees therefor; but he must furnish it, upon receiving a certificate of the sum to which he is entitled. The amount thereof must be paid by the treasurer of the county or city, as the case may be, where the trial or hearing is held, upon the certificate of the district attorney, attorney-general, the judge presiding at the trial or hearing, or the appellate court or judge thereof, from the court fund, or the fund from which jurors are paid, or from any other available fund.”


author: Per Curiam.

text:
    In the Matter of Lawrence L. Rater, a Justice of the Sherman Town Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued January 15, 1987;
    decided February 12, 1987
    POINTS OF COUNSEL

      John P. Rice, III, for petitioner.

      Jean M. Savanyu and Gerald Stern for respondent.
   OPINION OF THE COURT

Per Curiam.

The charges stem from petitioner’s failure to make timely deposits in the court account and timely reports and remittances to the State Comptroller over a two-year period after a recent censure for the same misconduct. The State Commission on Judicial Conduct has determined that the appropriate sanction should be removal. It is conceded that these charges are justified and that they require disciplinary action. The only issue, therefore, is the appropriate sanction.

The severity of the sanction imposed for this variety of misconduct depends upon the presence or absence of mitigating and aggravating circumstances. Certainly, in the absence of any mitigating factors, the failure to make timely deposits in the court account and timely reports and remittances to the State might very well lead to removal (Matter of Petrie v State Commn. on Judicial Conduct, 54 NY2d 807; Matter of Cooley, 53 NY2d 64). On the other hand, if a Judge can demonstrate that mitigating circumstances accounted for such failings, such a severe sanction may be unwarranted (id.; Matter of Rogers v State Commn. on Judicial Conduct, 51 NY2d 224).

Failure to heed a prior censure is an aggravating factor militating in favor of the strictest sanction (Matter of Quinn v State Commn. on Judicial Conduct, 54 NY2d 386, 392; Matter of Kuehnel v State Commn. on Judicial Conduct, 49 NY2d 465, 469-470). This failure is especially egregious in this case because the prior censure was based, in part, on the same misconduct. As stated by the Commission, petitioner’s repetition of his misconduct "further erodes public trust in his ability to properly perform his judicial duties.”

Accordingly, the determined sanction of the State Commission on Judicial Conduct should be accepted, without costs.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion; Judge Alexander taking no part.

Determined sanction accepted, without costs, and Lawrence L. Rater is removed from his office of Justice of the Sherman Town Court, effective immediately.