author: Titone, J. Smith, J.

text:
    [657 NE2d 247, 633 NYS2d 252]
    In the Matter of Yvonne Rodriguez, Appellant, v Cesar A. Perales, as Social Services Commissioner of the State of New York, Respondent, et al., Respondent.
    Argued April 25, 1995;
    decided June 14, 1995

      POINTS OF COUNSEL

      Jill Ann Boskey, New York City, and Wayne G. Hawley for appellant.
    I. Basic rules of statutory construction require a finding that "interim assistance” cannot be recovered from petitioner’s thirteenth SSI payment. (Watt v Alaska, 451 US 259; DiMarco v Hudson Val. Blood Servs., 147 AD2d 156; Chevron, U. S. A. v Natural Resources Defense Council, 467 US 837; Immigration & Nationalization Serv. v Cardoza-Fonseca, 480 US 421; Independent Ins. Agents v Board of Governors, 838 F2d 627.) II. This Court should enforce the choice of the United States Congress to protect from interim assistance recovery any SSI benefits not due at the time the first payment of SSI benefits is made. (Rodriguez v United States, 480 US 522; Ellender v Schweiker, 575 F Supp 590, 781 F2d 314; Philpott v Essex County Welfare Bd., 409 US 413; Bennett v Arkansas, 485 US 395; Moore v Colautti, 483 F Supp 357, 633 F2d 210; White v Bowen, 835 F2d 974; Matter of Baez v Bane, 159 Misc 2d 838; Matter of Delmar v Blum, 53 NY2d 105; Rivers v Schweiker, 523 F Supp 738, 692 F2d 871, cert denied sub nom. Rivers v Blum, 460 US 1088.)

      Dennis C. Vacco, Attorney-General, New York City (Carol Schechter and Victoria A. Graffeo of counsel), for Cesar A. Perales, respondent.
    Recovery of the full amount of interim assistance paid to petitioner was authorized under Federal and State law. (Matter of Carnegie v Perales, 200 AD2d 502; Commissioner v Brown, 380 US 563; Rosado v Wyman, 397 US 397; Kelly v United States, 924 F2d 355; Matter of Howard v Wyman, 28 NY2d 434; Matter of Johnson v Joy, 48 NY2d 689; Matter of Bernstein v Toia, 43 NY2d 437; Philpott v Essex County Welfare Bd., 409 US 413; Moore v Colautti, 483 F Supp 357, 633 F2d 210; Matter of Lutz v Amrhein, 151 AD2d 672.)
   OPINION OF THE COURT

Titone, J.

Applicants for Federal Supplemental Security Income (SSI) sometimes experience delays of several months or even years before their entitlement to benefits is determined. To ease the severe financial hardships that these delays may occasion, the local public assistance agencies are authorized to furnish eligible applicants with interim assistance and to recoup the outlay from the recipient’s "first” or "initial” SSI payment. The issue in this appeal is whether the locality’s right to recoupment may be exercised against the entire amount of retroactive SSI benefits paid to a recipient, where, as here, there has been a recalculation of the retroactive benefits due and, as a consequence, the recipient’s retroactive benefits have been paid in more than one installment. Adhering to the clear language of the applicable statutes, we conclude that, under the circumstances presented in this case, only the retroactive amount that is initially determined to be due the recipient is subject to local recoupment.

In December of 1987, petitioner applied for SSI, claiming that she was disabled. While she was waiting for her application to be decided, petitioner received interim Home Relief assistance from the New York City Department of Social Services. On March 6, 1990, the Federal agency determined that petitioner was eligible to receive SSI disability benefits. However, according to the agency, petitioner’s disability had not begun until September of 1988, and, consequently, she was entitled to a retroactive payment of only $7,652, representing the amount determined to be due for the period from September 1988 through April 1990. Petitioner subsequently commenced an administrative appeal from the Federal agency’s determination, arguing that her disability had begun as early as December of 1987.

In the meantime, the City Department of Social Services advised petitioner that it would retain the entire retroactive SSI payment she had been awarded as reimbursement for the interim assistance it had provided. Petitioner’s Home Relief case was closed effective May 16, 1990, and petitioner thereafter began receiving monthly SSI benefits.

Petitioner’s appeal from the Federal agency’s determination was ultimately resolved in her favor when the Secretary of Health and Human Services’ Appeals Council concluded that she was actually entitled to disability benefits from December 11, 1987, as she originally had claimed. As a result of this decision, the Federal agency issued an additional retroactive check to cover benefits due petitioner between December 11, 1987 and September 1988. A portion of this check was then claimed by the City as additional reimbursement for the interim Home Relief assistance it had given petitioner before her SSI application was determined.

Petitioner requested a fair hearing before the State Department of Social Services to challenge the City’s claim. Petitioner did not dispute that the additional amount claimed by the City was equal to the amount it had granted her in interim Home Relief benefits. Instead, she argued that the City was not entitled to a share of the second retroactive SSI benefit check because the applicable statutes and regulations permitted recoupment only from the "first” or "initial” SSI payment. The Social Services Department rejected petitioner’s argument. Petitioner then brought the present CPLR article 78 proceeding to challenge that determination.

Although Supreme Court granted the petitioner the relief she sought, the Appellate Division reversed, holding that the reference to "first payment” in the controlling Federal statute (42 USC § 1383 [g] [2]) was meant "only to set the point in time governing the calculation” and that "the amount to be reimbursed to the local government” is the amount necessary to reimburse it for the interim assistance it provided (205 AD2d 418, 419). In so ruling, the Appellate Division relied, in part, on its policy-based concern that the contrary rule would afford individuals in petitioner’s position a windfall solely because "the Social Security Administration made a mistake in calculation * * * and later corrected this error in a second retroactive check” (id., at 419). We now reverse.

As a general rule, SSI benefits are not subject to execution, levy, attachment, garnishment or other legal process (see, 42 USC §§ 407, 1383 [d] [1]). This antiattachment was construed strictly in Philpott v Essex County Welfare Bd. (409 US 413) to prohibit local social services agencies from recouping any interim public assistance provided to SSI recipients by claiming a share of their SSI benefits. However, in 1974, Congress overrode Philpott by enacting 42 USC § 1383 (g), which explicitly authorizes localities to recover interim assistance provided to SSI applicants out of the retroactive benefits they are awarded (Pub L 93-368 § 5). The purpose of this legislation was to provide an incentive to States to furnish financial assistance to needy individuals awaiting disposition of their applications for SSI benefits (see, HR Rep No. 1296, 94th Cong, 2d Sess 3-5, reprinted in 1976 US Code Cong & Admin News 1726, 1729-1730). The precise method Congress chose to effectuate this goal was to exempt from the general antiattachment rule those benefits "that the [Federal agency] has determined to be due with respect to the individual at the time the Secretary makes the first payment” (42 USC § 1383 [g] [2] [emphasis supplied]). It is this language which must be deemed controlling in determining the amount of SSI benefits that are subject to local recoupment.

Petitioner contends that the amount of SSI benefits that may be taken by a locality is limited to that which the Federal agency initially determines is due to the applicant, regardless of any corrective action that may later be taken. This contention is premised on petitioner’s view that the underscored language in section 1383 (g) was intended to modify the whole phrase "determined to be due.” Respondents, in contrast, argue that the underscored temporal language relates only to the word "due” in that phrase. This minor grammatical difference of opinion has major consequences. If respondents’ view is correct, the entire retroactive amount that is owed "at the time * * * [of] the first payment” would be subject to local attachment, regardless of when the determination of the amount owed is made. On the other hand, if petitioner’s position is correct, the local interim-assistance provider could attach only the amount fixed by the Federal agency’s original decision.

Contrary to the holding of the Appellate Division, we reject respondents’ position and conclude that petitioner’s proffered construction of 42 USC § 1383 (g) represents the better view. Respondents’ construction is unsatisfactory because it would render the first three words of the phrase "determined to be due” superfluous — a result that the rules of statutory construction disfavor. "It is well settled that in the interpretation of a statute we must assume that the Legislature did not deliberately place a phrase in the statute which was intended to serve no purpose * * * and each word must be read and given a distinct and consistent meaning” (Matter of Smathers, 309 NY 487, 495 [citations omitted]).

Moreover, respondents’ position has recently been explicitly rejected by the Secretary of the United States Department of Health and Human Services (HHS), the officer who is ultimately responsible for administering the SSI program. In a transmittal that was denominated a "Final Decision” and was dated December 5, 1994, the Secretary resolved a dispute between the New York State Department of Social Services and the Social Security Administration over the latter’s policy of sending "corrective” retroactive SSI payments directly to the recipient rather than to the State (US Dept of Health & Human Servs Decision No. 1429, Re: New York State Department of Social Services, Departmental Appeals Board Docket No. A-93-109). The Secretary upheld the policy, noting that direct payment to the State would be unwarranted because "the underpaid benefits, later sent directly to the recipient, would be unavailable for the state to offset amounts which it paid as interim assistance” (id., at 25). In reaching that conclusion, the Secretary reviewed virtually every argument made by respondents here and found them to be unpersuasive (id., at 21-26).

As the agency charged with administering and enforcing the SSI program, HHS is entitled to considerable deference in its construction and application of the program’s enabling legislation (e.g., Howard v Wyman, 28 NY2d 434, 438). An agency’s interpretation of the statutes it administers generally should be upheld if not unreasonable or irrational (e.g., Matter of Salvati v Eimicke, 72 NY2d 784, 791; Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104, 108; cf., Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451). Indeed, respondents expressly recognize the application of this principle here, although their argument rests on the premise that their view of the applicable State provisions rather than the Secretary’s view of the parallel Federal provisions should be controlling.

Deference to the Federal agency’s construction is particularly appropriate in this dispute involving the Social Security Act, which represents a " 'scheme of cooperative federalism’ ” (Matter of Jones v Berman, 37 NY2d 42, 52, quoting King v Smith, 392 US 309, 316) and ordinarily requires participating localities to comply with the Federal administrative agency’s regulations and rulings (see, Hagans v Lavine, 415 US 528, 530, n 1; Matter of Dunbar v Toia, 45 NY2d 764, 766; Matter of Beaudoin v Toia [Jorczak], 45 NY2d 343, 348). While the principle of "cooperative federalism” does not require blind adherence to all Federal directives, sound judicial policy counsels in favor of deference where, as here, the Federal ruling is not irrational or inconsistent with the language of the applicable Federal statute (cf., Matter of Bosh v Fahey, 53 NY2d 896).

Notably, Social Services Law § 158, which implements the Federal recoupment plan, contemplates only that the amount of interim assistance given by the State will be reimbursed "from [the] initial payment” (subd [a]) (emphasis supplied). "Initial payment” is defined as "the first payment of supplemental security income benefits after a person files an application for benefits” (id.). The Social Services Department’s regulations simply parallel the language of the enabling Federal legislation (18 NYCRR 353.2; see, 18 NYCRR former 370.7 [a] [2] [repealed eff Nov. 3, 1993]). Thus, like the Federal statute, the governing State provisions authorize recoupment only from the amount initially determined to be due to the recipient and not from any subsequent corrective payments that may be made.

We recognize, as both respondents and the dissenters stress, that limiting the State to reimbursement from the SSI recipient’s first payment may produce a windfall for individuals such as petitioner who succeed in obtaining an upward adjustment of their retroactive entitlements as a result of administrative appeals. However, the possibility of a windfall in such cases is not alone a sufficient reason to adopt the rule respondents urge, particularly in view of the language of 42 USC § 1383 (g), the HHS Secretary’s contrary position and the fact that the statute does not evince a legislative intent to ensure a one-to-one correspondence between the amount of interim assistance paid and the amount of reimbursement recovered. Indeed, as the HHS Secretary noted in her Final Decision (at 25), the Social Security Administration does not customarily seek a refund from the State when there has been an overpayment in the initial amount sent on behalf of the recipient. Furthermore, any perceived "windfall” effect from the rule limiting the State’s recovery out of retroactive SSI payments is mitigated by the fact that the State may have other sources for recovering overpayment (see, e.g., Social Services Law § 158 [d], [e] [i]).

Finally, notwithstanding any undesirable consequences such as the dissent perceives, the applicable Federal statute must be strictly construed in this context, because, as is evident from the associated case law and legislative history, there is a strong underlying Federal policy forbidding attachment of SSI benefits without express legislative authority. Just as remedial legislation in the form of 42 USC § 1383 (g) was necessary to enable the States to recoup interim assistance from the retroactive amount initially determined to be due, so too is specific remedial legislation required to enable localities to recoup by attaching subsequently determined "corrective” payments. Such specific legislation does not presently exist.

For all of the foregoing reasons, we conclude that respondent City was not authorized to recoup its previously unreimbursed interim-assistance outlay from the proceeds of petitioner’s Federal administrative appeal. Hence, respondent State Department of Social Services should have directed the City to return any portion of petitioner’s second retroactive SSI check that it was withholding.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.

Smith, J.

(dissenting). The issue here is whether the City was permitted to retain reimbursement for interim assistance provided petitioner although such reimbursement was made after the initial Federal SSI payment. Because I believe that the Appellate Division was correct when it determined that such corrective payment was properly made to the City, I dissent and vote to affirm the order of the Appellate Division.

On December 11, 1987, petitioner filed an application for Federal Supplemental Security Income disability benefits (SSI). While her application was being processed, she applied for and received Home Relief interim assistance benefits through the New York City Department of Social Services (City DSS). In April 1990, the Social Security Administration (SSA) determined petitioner eligible for benefits, but only as of September 14, 1988 and made an initial payment of benefits for the period September 14, 1988 through April 1990 directly to City DSS for interim assistance provided petitioner. City DSS inaccurately thought that the payment represented reimbursement for the entire period for which interim assistance was provided (December 11, 1987 though April 1990) and kept the entire payment.

Petitioner appealed SSA’s initial determination that eligibility dated from September 1988 as opposed to December 1987, the date of her initial application. In November 1990, the SSA Appeals Council found that petitioner was actually disabled for the period December 11, 1987 through September 13, 1988 and awarded her benefits from that time period. This award of "retroactive benefits” was included in petitioner’s thirteenth SSI check and sent directly to City DSS. City DSS again kept the complete thirteenth payment as reimbursement for interim assistance for the entire period December 11, 1987 through April 1990, instead of December 1987 through September 1988. Petitioner requested that City DSS correct its error. After realizing its error, City DSS recalculated the amount of interim assistance provided and remitted the excess to petitioner.

Petitioner, simultaneously, requested a fair hearing to review City DSS’s determination to retain any portion of the "non-initial” payment. State DSS upheld City DSS’s retention of part of the corrective payment. Petitioner commenced this CPLR article 78 proceeding seeking reversal of State DSS’s decision after the fair hearing. The motion court held that the multiple checks issued at different times did not constitute an initial payment within the meaning of Federal and State law. The Appellate Division reversed, holding essentially that SSA’s mistake in calculation should not result in a windfall to petitioner allowing her to receive SSI benefits for a period during which she also received Home Relief benefits.

Under the Federal SSI program, monthly Federal benefits are provided to eligible individuals who are aged, blind, or disabled and poor to maintain basic subsistence (42 USC § 1381). These benefits are not subject to attachment without express statutory authority (42 USC §§ 407, 1383 [d] [1]). Determination of an applicant’s eligibility for SSI benefits takes time and could in some instances leave applicants without assistance for the period during which their application is being processed. During this "interim” period, applicants may seek assistance from State agencies under the Interim Assistance Program (IAP) (42 USC § 1383 [g]; 20 CFR 416.1901). The Interim Assistance Provisions of the Social Security Act is a program enacted by Congress in 1974 specifically to aid individuals awaiting determination of applications for Federal SSI benefits (id.). Under this program, State and local social service agencies are permitted to recoup interim assistance.

To receive reimbursement for interim payments, a State must agree to pay any excess reimbursement to the recipient (42 USC § 1383 [g] [4] [A]). The Federal regulations provide that when a recipient so authorizes, SSA may withhold a recipient’s benefits and when SSA makes the "initial payment” of benefits, send payment directly to the State, provided the State has entered into an appropriate agreement with SSA (20 CFR 416.1904).

Social Services Law § 158 (a) provides the statutory authority for New York State to receive and deduct interim assistance from an SSI recipient’s "initial payment.” The regulations define "initial payment” as the amount of SSI benefits SSA determines to be payable at the time the first payments of SSI benefits are made (18 NYCRR 370.7 [a] [2]). Although a State or local social service district is permitted to recover for interim assistance provided an individual awaiting determination on an SSI application, the regulation prohibits further recovery where the initial payment is insufficient to fully reimburse such agency for interim assistance. Specifically the regulations provide:

"Upon receipt of an initial payment, the local social services district shall deduct therefrom the amount of interim assistance provided. If the initial payment is less than the interim assistance provided, recoupment cannot be made from subsequent SSI payments” (18 NYCRR 370.7 [c] [3]).

Petitioner argues that the plain language of the Federal and State statues requires a finding that any payments, corrective or otherwise, made after the initial payment are to be paid directly to the recipient. Petitioner’s strict reading of the statutes is contrary to the purpose and spirit of the Interim Assistance Program’s enactment. States and local social service districts participating in the interim assistance program provide essential financial relief to applicants awaiting eligibility determination for Federal SSI benefits. As participation in the LAP program is voluntary, the possibility of continually losing valuable public resources to applicants receiving double benefits serves little or no incentive for continued State participation.

Essentially, petitioner contends that not only is she entitled to the interim assistance she received from City DSS while awaiting determination of her SSI application, but regardless of an error in calculation resulting in a double outlay of benefits from both City DSS and Federal SSI covering the identical period, she is nevertheless entitled to retain any excess not provided in the "initial payment” or the "first payment” of Federal benefits. This interpretation, however, is counter to the rationale for IAP’s enactment. The purpose for which the Federal and State IAP statutes were enacted is that when an applicant is awaiting determination for SSI benefits and receives interim assistance from a State or local social service district, such agency is entitled to recoup whatever assistance has been provided.

The State apparently loses some reimbursement for interim assistance when SSA determines a person is not eligible for such assistance. Further, if a determination is made that an individual is entitled to benefits covering a period less than that for which the State has provided interim assistance, and the initial payment reflects only that period, the State is not permitted to recoup the balance of assistance provided from the recipient. While the statute specifically prohibits recoupment of interim assistance for periods an applicant is found ineligible for Federal SSI, this prohibition does not refer to a double recovery situation provided this petitioner.

Here, SSA made an initial determination of entitlement to benefits for only part of the period for which City DSS provided interim assistance, with payment made accordingly. Subsequently, SSA determined that petitioner was actually entitled to benefits for the entire period that City DSS provided interim assistance and, thereafter, SSA provided benefits on a retroactive basis to cover the period not provided for in the initial payment. In this instance, reimbursement to the State or local social service agency, even if after the first payment, is permissible to avoid the double receipt of benefits to the SSI recipient.

In a recent decision involving a dispute between State DSS and SSA regarding their interagency agreement under the SSI interim assistance program, the Secretary of the United States Department of Health and Human Services determined that SSA’s policy of sending "corrective payments” directly to recipients rather than to the State was fully supported by statute. The Secretary concluded that recovery of interim assistance by State and local agencies to retroactive benefits is limited to that initially determined to be due. This conclusion not only frustrates the purpose of the IAP, but implies that the statute intends to provide recipients with, in this case, duplicate benefits. Faced with the unreimbursed costs of administering benefits under IAP, loss of benefits provided during periods when applicants are ineligible for SSI and the absorption of nonreimbursable benefits due to an error in eligibility determination on SSA’s part, this conclusion further serves as a disincentive for State and local social service agencies to provide assistance under IAP.

It should be emphasized that the letter decision by the Secretary of the United States Department of Health and Human Services has no application here. The letter states, inter alla, that any corrective payments of SSI benefits, other than the initial or first payment, should be sent not to the City or State but directly to the recipient even though the City or State has made interim payments covered by the corrective payments. Here, unlike the situation in the letter decision, the corrective payments were sent to the City. It is unreasonable to now say that the City must give those payments to a recipient who has received the interim benefits and then find another means of recouping those benefits from that same recipient. Moreover, the New York State regulations contemplate that an initial payment may be made in more than one check. Thus, 18 NYCRR 370.7 (a) (2) states:

” [T]he amount of SSI benefits determined by the Social Security Administration (SSA) to be payable to an eligible individual (including retroactive amounts, if any) at the time the first payments of SSI benefits are made” (emphasis supplied).

Finally, the suggestion by the majority that recoupment can be made by applying Social Services Law § 158 (d) and (e) is not a reasonable alternative to the City’s retention of the funds it has received. Those sections provide that a recipient of Home Relief can be required (1) to assign to the State and the social services district any rights of support from any other person or (2) to assist public authorities in establishing the paternity of a child and in efforts to secure assistance from the father.

Accordingly, I would affirm the order of the Appellate Division.

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

Order reversed, etc.

      . To facilitate the localities’ recoupment, 42 USC § 1383 (g) provides that, where an SSI applicant has executed a written agreement, the Federal agency may send the applicant’s initial SSI payment directly to the agency that has granted interim assistance.

      . The Appellate Division did not have the benefit of this "Final Decision” at the time it made its decision on respondents’ appeal.

      . The dissent’s assertion that the letter decision "has no application here” is puzzling. It is true that the Secretary’s letter concerned the State’s dispute with HHS regarding the latter’s policy of sending "corrective” lump-sum SSI payments directly to the recipient (see, Internal SSA Program Operations Systems Manual § SI 02003.030A.2), while the lump-sum payment in this case was sent to the local social services agency. However, this fortuity, which apparently resulted from an administrative error on the part of HHS, has no analytical significance. Underlying the issue of whether the payment should be sent to the State or to the recipient is the dispositive question of which party is entitled to the fund. On that question, the Secretary clearly and unmistakably ruled that the corrective payment belongs to the recipient and not the State. That conclusion is directly on point in this dispute.

      . The dissent’s reliance on 18 NYCRR 353.2 (c) (3) is misplaced. Obviously, to the extent that the regulation permits a practice that is inconsistent with either 42 USC § 1383 (g) or Social Services Law § 158, it is invalid and not to be followed. Further, there is no real inconsistency as the cited regulation merely permits the local social services agency to recoup interim assistance from "any check or checks comprising an initial payment” (18 NYCRR 353.2 [c] [3] [emphasis supplied]). The regulation’s use of the word "checks" in the plural can readily be interpreted as a means of accommodating SSA’s requirement that payments exceeding $9,999.99 be made in multiple checks (Internal SSA Program Operators Systems Manual § SI 02003.030A.2). Construed in this manner, the regulation simply contemplates situations in which the amount initially determined to be due to the applicant exceeds the amount that can be paid through a single check and does not have the broader significance attributed to it by the dissent.

      . According to the Social Security Administration’s submissions to the HHS Secretary, its national rate for erroneous initial underpayments in 1991 (the last year for which statistics were then available) was only 1.1%.


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    [657 NE2d 254, 633 NYS2d 259]
    In the Matter of Lawrence M. Sasso et al., Respondents, v Elliott Osgood et al., Constituting the Zoning Board of Appeals of the Town of Henderson, Respondents. Gerald G. Speach, Intervenor-Appellant.
    Argued September 14, 1995;
    decided October 19, 1995

      POINTS OF COUNSEL

      Coulter, Fraser, Bolton, Bird & Ventre, Syracuse (P. David Twichell of counsel), for intervenor-appellant.
    I. The 1991 amendments to the Town Law eliminated the necessity of showing "practical difficulty” and "significant economic injury” as prerequisites to the granting of an area variance. (Matter of Otto v Steinhilber, 282 NY 71; Matter of Village of Bronxville v Francis, 1 AD2d 236, 1 NY2d 839; Matter of Fulling v Palumbo, 21 NY2d 30; Sanzone v City of Rome, 170 AD2d 977; Cirrito v Zoning Bd. of Appeals, 197 AD2d 850; Samon v City of Utica Zoning Bd. of Appeals, 191 AD2d 1004; Matter of Sasso v Gamble, 181 AD2d 988; Matter of Fuhst v Foley, 45 NY2d 441; Matter of Wachsberger v Michalis, 19 Misc 2d 909, 18 AD2d 921; Matter of Friendly Ice Cream Corp. v Barrett, 106 AD2d 748.) II. The Court below erroneously held that appellant was required to make a showing of "practical difficulties”. III. The Henderson Zoning Board determination under new Town Law § 267-b (3) had a rational basis and was supported by substantial evidence. (Matter of Fuhst v Foley, 45 NY2d 441; Matter of De Sena v Board of Zoning Appeals, 45 NY2d 105; Matter of North Shore Steak House v Board of Appeals, 30 NY2d 238; Matter of Lee Realty Co. v Village of Spring Val., 61 NY2d 892; Matter of C.B.H. Props, v Rose, 205 AD2d 686; Matter of Pine Hill Concrete Mix Corp. v Town of Newstead Zoning Bd. of Appeals, 161 AD2d 1187; Matter of Rider v Board of Appeals, 172 AD2d 673; Matter of Hochberg v Zoning Bd. of Appeals, 185 AD2d 849; Human Dev. Servs. v Zoning Bd. of Appeals, 110 AD2d 135, 67 NY2d 702.)

      Schwerzmann & Wise, P. C., Watertown (Richard J. Graham of counsel), for Elliott Osgood and others, respondents.
    I. The Court below erroneously held that there is "no appreciable difference” between newly enacted Town Law § 267-b and the former "practical difficulty” test. (Sega v State of New York, 60 NY2d 183; People v Graham, 55 NY2d 144; Cromwell v Le Sannom Bldg. Corp., 177 AD2d 372; Schrader v Carney, 180 AD2d 200; Matter of O’Keefe v Donovan, 199 AD2d 681; Matter of Vilardi v Roth, 192 AD2d 662; Patrolman’s Benevolent Assn. v City of New York, 41 NY2d 205; Matter of Connor v Deer Park Union Free School Disk, 195 AD2d 216.) II. The Board’s grant of an area variance was supported by substantial evidence. (Matter of Tozzo v Board of Appeals on Zoning, 179 AD2d 810; Matter of De Sena v Board of Zoning Appeals, 45 NY2d 105; Matter of Zwitzer v Zoning Bd. of Appeals, 144 AD2d 1023, 74 NY2d 756; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309; Matter of Kidd-Kott Constr. Co. v Lillis, 124 AD2d 996; Matter of Rider v Board of Appeals, 172 AD2d 673; Matter of Hochberg v Zoning Bd. of Appeals, 185 AD2d 849; Human Dev. Servs. v Zoning Bd. of Appeals, 110 AD2d 135, 67 NY2d 702; Matter of Green v Scheyer, 205 AD2d 535; Matter of Cunningham v Kerst, 203 AD2d 636.) III. The Court below properly deferred to the fact-finding function of the Board and its judgment should be affirmed. (Thomas v Brookins, 175 AD2d 619; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309; Matter of Rostlee Assocs. v Amelkin, 121 AD2d 725; Matter of Perger v Zoning Bd. of Appeals, 146 AD2d 698.)

      Fix, Spindelman, Brovitz, Turk, Himelein & Shukoff, P. C, Rochester (Karl S. Essler and Joseph T. Coolican of counsel), for Lawrence M. Sasso and another, respondents.
    I. The enactment of Town Law § 267-b did not relax the standards for the granting of area variances. (Matter of Otto v Steinhilber, 282 NY 71; Matter of Village of Bronxville v Francis, 1 AD2d 236, 1 NY2d 839; Matter of Fuhst v Foley, 45 NY2d 441; Matter of Young v Board of Appeals, 194 AD2d 796; Matter of Grace v Palermo, 182 AD2d 820; Clute v Town of Wilton Zoning Bd. of Appeals, 177 AD2d 925; Marino v Zoning Bd. of Appeals, 176 AD2d 1210; Matter of Zakrel, Ltd. v Roth, 176 AD2d 732, 79 NY2d 851; Matter of Friendly Ice Cream Corp. v Barrett, 106 AD2d 748.) II. The Court below properly determined that the Board’s findings were not supported by substantial evidence. (Matter of De Sena v Board of Zoning Appeals, 45 NY2d 105; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309; Sackson v Zimmerman, 103 AD2d 843; Matter of Kransteuber v Scheyer, 76 AD2d 724, 80 NY2d 783; Matter of Sbuttoni v Town of E. Greenbush Zoning Bd. of Appeals, 172 AD2d 940; Matter of Grando v Town of Islip, 172 AD2d 663; Matter of North Shore Steak House v Board of Appeals, 30 NY2d 238; Matter of Munnelly v Town of E. Hampton, 173 AD2d 472; Matter of Grace v Palermo, 182 AD2d 820; Matter of D’Angelo v Hartman, 187 AD2d 927.) III. Because the Board’s determination was based upon erroneous factual findings, the Court below properly set aside the granting of the requested variances. (Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393; Matter of Consolidated Edison Co. v Public Serv. Commn., 63 NY2d 424.)

      Rice & Amon, Suffern (Terry Rice and Sheldon Damsky of counsel), for New York Planning Federation, amicus curiae.

    I. Town Law § 267-b (3) and Village Law § 7-712-b (3) have created a new standard for the review of area variance applications. (Matter of Otto v Steinhilber, 282 NY 71; Matter of Village of Bronxville v Francis, 1 AD2d 236, 1 NY2d 839; Matter of Wachsberger v Michalis, 19 Misc 2d 909, 18 AD2d 921; Matter of Fulling v Palumbo, 21 NY2d 30; Matter of Friendly Ice Cream Corp. v Barrett, 106 AD2d 748; Human Dev. Servs. v Zoning Bd. of Appeals, 110 AD2d 135, 67 NY2d 702; Matter of Pacheco v De Salvo, 127 AD2d 597; Matter of Perger v Zoning Bd. of Appeals, 146 AD2d 698; Matter of Niceforo v Zoning Bd. of Appeals, 147 AD2d 483, 74 NY2d 612; Matter of Salierno v Briggs, 141 AD2d 547.) II. The standards and considerations set forth in Town Law § 267-b (3) and Village Law § 7-712-b (3) relate to the land — personal convenience is not a sufficient basis for relief. (Matter of St. Onge v Donovan, 71 NY2d 507; Matter of Fuhst v Foley, 45 NY2d 441; Matter of Larson v Fernan, 202 AD2d 505; Cirrito v Zoning Bd. of Appeals, 197 AD2d 850; Matter of Winsom v Zoning Bd. of Appeals, 168 AD2d 921; Matter of Wank v Van Etten, 55 AD2d 693; Matter of Zebrowski v Herdman, 72 Misc 2d 973; Matter of Lippe v Cisternino, 44 Misc 2d 510; Matter of Krouner v City of Albany, 192 AD2d 930, 82 NY2d 656; Matter of Sbuttoni v Town of E. Greenbush Zoning Bd. of Appeals, 172 AD2d 940.)
   OPINION OF THE COURT

Simons, J.

This appeal requires us to interpret the provisions of recently enacted Town Law § 267-b (3) regulating area variances. Specifically, the question is whether the provisions of the statute are exclusive or whether an applicant for an area variance must make a showing of "practical difficulties.” The Appellate Division came to the latter conclusion that, the provisions of the statute notwithstanding, an applicant must show "practical difficulties” before being entitled to an area variance. We disagree, and reverse the order of that Court.

I

In 1989, intervenor Gerald Speach purchased a waterfront parcel of land situated on Graham’s Creek, a man-made canal in the Town of Henderson. The creek is located on the eastern end of Lake Ontario near the mouth of the St. Lawrence River and is lined with commercial and private boathouses. Speach’s property, undeveloped but for an existing single slip boathouse, is located within a "lakefront district” as designated by local ordinances adopted in 1991 and is a "special permit” use. It has an area of 5,200 square feet and is approximately 50 feet wide along the road that is its northern border and 72 feet wide at the waterfront. The Town of Henderson zoning ordinances require a minimum lot area of 12,000 square feet and minimum lot width of 100 feet. Thus Speach’s property is substandard in both area and width.

In 1990, Speach applied to the Town of Henderson Zoning Board of Appeals for area variances to allow him to demolish the existing structure and build a larger boathouse. At that time, the local ordinances required a minimum lot size of 7,500 square feet. Petitioners Sasso and Edney, who own adjacent lots developed with boathouses and residences, objected to the application. They contended that Speach’s proposed boathouse would obstruct their access to light, air and view, and that the foundations of their structures and their septic systems would be damaged by construction and altered water drainage patterns. The Zoning Board granted the variances, and petitioners commenced a CPLR article 78 proceeding to annul that determination. Supreme Court dismissed the petition, but on appeal, the Appellate Division reversed and granted it. The Appellate Division determined that Speach had failed to demonstrate "practical difficulties sufficient to justify an area variance” primarily because he had not shown that " 'strict enforcement of the [zoning] ordinance will cause him a significant economic injury’ ” (Matter of Sasso v Gamble, 181 AD2d 988).

In 1993, Speach submitted a new application for area variances to the Zoning Board based on changed circumstances since his 1990 application. Speach had altered the design of the boathouse and its method of construction to address the concerns of petitioners, and he argued that local redistricting of the property in 1991 supported his application. Speach also relied on newly enacted Town Law § 267-b (3) which, he contended, no longer required him to show economic hardship or practical difficulties. Applying the criteria set forth in the new statute, the Zoning Board granted Speach’s application for a variance. Supreme Court denied petitioners’ ensuing article 78 petition to annul the determination of the Zoning Board, but on appeal to the Appellate Division, that Court annulled the determination of the Zoning Board and granted the petition. The Court noted that the standards for granting area variances under the former test of practical difficulties and the new statutory criteria are not appreciably different, and held that "an applicant still must demonstrate that strict compliance with the zoning ordinance will result in practical difficulties” (Matter of Sasso v Osgood, 206 AD2d 837, 838). We granted intervenor’s motion for leave to appeal to this Court.

II

Prior to July 1, 1992, the authority of Town Zoning Boards of Appeal to grant variances from local zoning ordinances was defined in Town Law former § 267. The boards were authorized to grant variances "[w]here there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of [local] ordinances” provided that "the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done” (Town Law former § 267 [5]). Although the former statute did not distinguish between "use” and "area” variances or assign the specific tests to them, court decisions generally applied the "unnecessary hardship” test in use variance cases, while requiring a demonstration of "practical difficulties” in area variance cases (see, Matter of Village of Bronxville v Francis, 1 AD2d 236, 238, affd 1 NY2d 839; see also, Matter of Hoffman v Harris, 17 NY2d 138, 144; Dauernheim, Inc. v Town Bd., 33 NY2d 468, 471; Matter of Off Shore Rest. Corp. v Linden, 30 NY2d 160, 168).

A three-pronged test of "unnecessary hardship” was clearly articulated more than 50 years ago (see, Matter of Otto v Steinhilber, 282 NY 71, 76) and that test, now embodied in Town Law § 267-b (2), has been applied in use variance cases without substantial difficulty (see, e.g., Matter of Village Bd. v Jarrold, 53 NY2d 254; see also, Holy Sepulchre Cemetery v Board of Appeals, 271 App Div 33; Matter of Fasani v Rappaport, 30 AD2d 588; Matter of Swartz v Wallace, 87 AD2d 926; Matter of Varley v Zoning Bd. of Appeals, 131 AD2d 905; Matter of Dwyer v Polsinello, 160 AD2d 1056; Matter of Drake v Zoning Bd. of Appeals, 183 AD2d 1031). The definition and application of the "practical difficulties standard” has proven far more troublesome.

Lacking a statutory definition, we have recognized the existence of "practical difficulties” where the unusual topography of the subject parcel interfered with construction of a building (see, Matter of Wilcox v Zoning Bd. of Appeals, 17 NY2d 249, 255), and where area variances were required to build a house on an amply sized but oddly shaped parcel that did not meet frontage and side yard requirements (Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309, 316). We have also suggested that an area variance could be granted upon a showing of "significant economic injury” (Matter of Fulling v Palumbo, 21 NY2d 30, 33; see also, Matter of Cowan v Kern, 41 NY2d 591, 596). In Matter of National Merritt v Weist (41 NY2d 438) we considered both unique topography and economic injury relevant to the application for an area variance. These cases are only illustrative. We have noted several times that there is no precise definition of the term "practical difficulties” (Matter of Doyle v Amster, 79 NY2d 592, 595; Matter of Fuhst v Foley, 45 NY2d 441, 445), observing that "[t]he basic inquiry at all times is whether strict application of the ordinance in a given case will serve a valid public purpose which outweighs the injury to the property owner” (Matter of De Sena v Board of Zoning Appeals, 45 NY2d 105, 108).

Without any legislative guidance defining the requirements for an area variance, the courts began to develop a list of considerations to be applied under Town Law former § 267 (see, Matter of Wachsberger v Michalis, 19 Misc 2d 909, affd 18 AD2d 921; see also, Matter of Friendly Ice Cream Corp. v Barrett, 106 AD2d 748; Human Dev. Servs. v Zoning Bd. of Appeals, 110 AD2d 135, affd 67 NY2d 702). Although originally offered as guidance for determining whether "the spirit of the ordinance [is] observed, public safety and welfare secured and substantial justice done” (see, Matter of Wachsberger v Michalis, 19 Misc 2d, at 912 [Meyer, J.], supra), these criteria came to be known as the "practical difficulties” test (see, 2 Anderson, New York Zoning Law and Practice § 23.34, at 208-209 [3d ed]). The criteria notwithstanding, however, precise and concise definition of "practical difficulties” never emerged from the case law. In particular, it remained unclear whether a showing of "significant economic injury” was part of the "practical difficulties” test (see, e.g, Matter of Doyle v Amster, 79 NY2d 592, supra; Matter of Orchard Michael, Inc. v Falcon, 65 NY2d 1007; Matter of Children’s Hosp. v Zoning Bd. of Appeals, 181 AD2d 1056; Matter of Stengel v Town of Woodstock Zoning Bd. of Appeals, 155 AD2d 854; Matter of Salierno v Briggs, 141 AD2d 547).

Effective July 1, 1992, the Legislature repealed former section 267 of the Town Law, and enacted comprehensive provisions governing Zoning Boards of Appeals (L 1991, ch 692). Unlike the former section 267, the new statute defines "use” and "area” variances, as well as the criteria to be evaluated in determining applications for each. Use variances may be granted upon an applicant’s showing "that applicable zoning regulations and restrictions have caused unnecessary hardship,” expressly incorporating that phrase as it existed in former section 267 of the Town Law. The statute defines the elements of proof necessary to establish unnecessary hardship, essentially codifying the criteria originally set forth in Matter of Otto v Steinhilber (282 NY 71, 76, supra), with the added requirement that the applicant prove that "the alleged hardship has not been self-created” (Town Law § 267-b [2] [b] [4]).

The standard for area variances is contained in section 267-b (3) of the Town Law in a provision that does not expressly require the applicant to prove "practical difficulties”. It states:

"In making its determination [whether to grant an area variance], the zoning board of appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the board shall also consider: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some other method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.” (Town Law § 267-b [3] [b] [emphasis added].)

The five factors listed parallel the criteria previously used by the lower courts and identified by Professor Anderson as the "practical difficulties” test (2 Anderson, New York Zoning Law and Practice § 23.34, op. cit.; see, e.g., Matter of Friendly Ice Cream Corp. v Bennett, 106 AD2d 748, supra; Human Dev. Servs. v Zoning Bd. of Appeals, 110 AD2d 135, supra; Matter of Wachsberger v Michalis, 19 Misc 2d 909, affd 18 AD2d 921, supra).

Ill

The precise question posed on this appeal is whether by failing to include the phrase "practical difficulties” in the new statute, the Legislature has eliminated the requirement that the applicant for an area variance make that showing.

Intervener Speach argues that the court may look only to the plain and unambiguous language of the statute when construing it (see, Sega v State of New York, 60 NY2d 183, 190-191). He asserts that while Town Law former § 267 required a showing of practical difficulties or unnecessary hardship before an area or use variance was granted, the new statute incorporates only unnecessary hardship for use variances (Town Law § 256-b [2]) and fails to incorporate the old practical difficulties standard in subdivision (3), the provision which now regulates area variances. Thus, he maintains, a showing of "practical difficulties” is not an element of an application for an area variance. Notwithstanding the absence of any explicit reference to "practical difficulties” in Town Law § 267-b (3), however, the subdivision is ambiguous because it requires the Zoning Board to consider whether "the alleged difficulty was self-created” (Town Law § 267-b [3] [b] [5] [emphasis added]). Accordingly, we must examine the Legislature’s intent in amending the statute.

Reference to the Bill Jacket for chapter 692 of the Laws of 1991 supports intervenor’s contention that an applicant for an area variance need not show "practical difficulties” as required under Town Law former § 267 and prior case law. Documents in the Bill Jacket make clear that the statute was enacted to clarify existing law by setting forth readily understandable guidelines for both Zoning Boards of Appeal and applicants for variances and to eliminate the confusion that then surrounded applications for area variances. Thus one memorandum states:

"The rules governing the granting of area variances that have been established by the courts are not nearly as clear as those governing use variances, and the result has been a great deal of confusion by boards of appeals, with a high degree of potential exposure to litigation. The new Town Law, section 267-b (3) and Village Law, section 7-712-b (3) resolve this problem by establishing a statutory test for the issuance of area variances which is flexible and which incorporates what we believe are the best features of the court decisions in order to protect the community” (Bill Jacket, L 1991, ch 692, at 26, Mem of Executive Deputy Secretary of State James Baldwin).

The same intent may be found in several other memoranda and establish that the legislation was enacted to aid laypersons — both applicants and lay members of Zoning Boards of Appeal — in understanding and implementing the existing case law; it was intended to have "little impact on existing laws since the main thrust of the legislation is to clarify and establish, in statute, the powers of the Zoning Board as already defined by jurisprudence” (Bill Jacket, op. cit, at 20, Mem of NY State Conference of Mayors and Other Municipal Officials ["(t)his legislation does not substantially change the existing law, but, clarifies the present statute”]; see also, id., at 23, Mem of Assembly Sponsor Magee; id., at 33, Mem of NY State Conference of Mayors and Other Municipal Officials; id., at 35, Mem of Association of Towns).

We conclude Town Law § 267-b (3) (b) requires the Zoning Board to engage in a balancing test, weighing "the benefit to the applicant” against "the detriment to the health, safety and welfare of the neighborhood or community” if the area variance is granted, and that an applicant need not show "practical difficulties” as that test was formerly applied.

IV

Applying the new statute we conclude that the action of the Henderson Zoning Board was rational and not arbitrary and capricious (see, Matter of Cowan v Kern, 41 NY2d 591, 599, supra; McGowan v Cohalan, 41 NY2d 434, 438). As required by Town Law § 267-b (3) (b), the Zoning Board addressed five specific criteria. First, it determined that no undesirable change would be produced in the character of the neighborhood, because Graham’s Creek serves primarily as a site for boathouses and commercial marinas, and that the addition of intervenor’s proposed three-slip boathouse will not result in a significant increase in boat traffic or noise. The Zoning Board’s conclusion that the variance will have minimal impact on nearby properties is supported by evidence that intervenor’s boathouse will comply with all setback and height restrictions imposed by local ordinances. In making this finding, the Board had before it and considered the conditions imposed on intervenor’s construction by the Town Planning Board which mitigated concerns voiced by petitioners (see, Town Law § 267-b [3] [b] [1]).

Next, the Zoning Board concluded that no alternatives other than the grant of area variances existed, because intervenor’s lot is of substandard size, and no improvement to the property could be made without the requested lot size and width variances (id,., subd [3] [b] [2]). The Zoning Board then acknowledged that the variances sought were substantial, but that there was no available adjacent land for intervenor to purchase so that he could meet the zoning requirements, and granting the variances would merely permit intervenor to use his property for a permitted use equal to all other neighboring lots (id., subd [3] [b] [3]). The Zoning Board’s conclusion under subdivision (3) (b) (4) that granting the variances would lead to no adverse effect or impact on the neighborhood other than the previously discussed effect on petitioners is also supported by the record.

The only determination of the Zoning Board not supported by the record is its conclusion that intervenor’s difficulty was not self-created. The record reveals that the parcel was of substandard lot size when intervenor purchased it in 1989 and it is well established that, in such circumstances, the variance applicant’s difficulty or hardship is self-created (see, Matter of Doyle v Amster, 79 NY2d 592, 597, supra; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309, 315, supra). Nevertheless, the statute expressly states that the fact that the applicant’s difficulty was self-created does not necessarily preclude the granting of the area variance (Town Law § 267-b [3] [b] [5]). Under all the circumstances presented, the Board did not act arbitrarily in granting a variance notwithstanding the applicant’s self-created difficulty.

In sum, the Zoning Board weighed the benefit to intervenor —the opportunity to fully use his property for a permitted use —against any detriment to the health, safety and welfare of the neighborhood or community, and determined to grant the variance. Its conclusions find ample support from the photographs and other materials in the record, and its determination was not irrational, arbitrary or capricious. Thus, the Appellate Division erred in reversing the order of Supreme Court confirming the determination.

Accordingly, the order of the Appellate Division should be reversed, with costs to intervenor against petitioners, and the judgment of Supreme Court, Jefferson County, reinstated.

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

Order reversed, etc.

      . Although we address only the changes to the Town Law, the legislation made identical changes to the corresponding provisions of the Village Law (see, L 1991, ch 692, §§ 5-8).

      . [3] We have said that the Zoning Board’s determination must be supported by "substantial evidence” (see, Matter of Doyle v Amster, 79 NY2d 592, 596, supra; Matter of Fuhst v Foley, 45 NY2d 441, 444, supra; Conley v Brookhaven Town Zoning Bd. of Appeals, 40 NY2d 309, 314, supra). However, a determination of a Zoning Board is administrative or quasi-legislative in character and rationality is the appropriate standard of review. The Board’s actions are to be distinguished from quasi-judicial determinations reached upon a hearing involving sworn testimony (compare, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; CPLR 7803 [4]). When reviewing the determinations of a Zoning Board, courts consider "substantial evidence” only to determine whether the record contains sufficient evidence to support the rationality of the Board’s determination.


author: Bellacosa, J. Simons, J.

text:
    [657 NE2d 260, 633 NYS2d 265]
    In the Matter of Jamar A., a Person Alleged to be a Juvenile Delinquent, Respondent.
    Argued September 14, 1995;
    decided October 19, 1995

      POINTS OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Fay Ng and Pamela Seider Dolgow of counsel), for appellant.
    I. Respondent waived his objections to the alleged untimeliness of his fact-finding hearing where he implicitly consented to an adjournment and where his fact-finding hearing was commenced on the adjourned date. Thus, the order of the Court below dismissing the juvenile delinquency petition should be reversed and the dispositional order should be reinstated. (People v Jackson, 196 NY 357; Matter of Walter P., 203 AD2d 213, 84 NY2d 807; Matter of Raymond B., 160 AD2d 936; Matter of Ralph D., 163 AD2d 752; Matter of Charles O., 182 AD2d 1063, 81 NY2d 703; People v Trepasso, 197 AD2d 891, 82 NY2d 854; Matter of Thomas A., 200 AD2d 425; Matter of Christopher W, 200 AD2d 539; People v Muhanimac, 181 AD2d 464, 79 NY2d 1052.) II. Should this Court determine that respondent has not waived his objections, the Court below nevertheless erred in dismissing the petition because respondent’s unexpected return on an outstanding warrant and the presentment agency’s need for an adjournment to arrange for the appearance of its witnesses in light of this unexpected return constituted special circumstances supporting the adjournment of the fact-finding hearing. (Matter of Randy K., 77 NY2d 398; People v Muhanimac, 181 AD2d 464, 79 NY2d 1052; Matter of Frank C, 70 NY2d 408; Matter of Nakia L., 81 NY2d 898; Matter of Kasheen A., 197 AD2d 572.)

      Patricia S. Constantikes, New York City, and Jane M. Spinak for respondent.
    The Court below properly dismissed the delinquency petition where the Family Court adjourned the fact-finding hearing for a second time after the initial 60-day period without making a finding of "special circumstances” on the record as required by Family Court Act § 340.1. (Matter of Nakia L., 81 NY2d 898; Matter of Randy K., 77 NY2d 398; Matter of Frank C., 70 NY2d 408; Matter of Lance W, 207 AD2d 722; People v Thatch, 71 NY2d 906; Matter of Gissette Angela P., 80 NY2d 863; People v Adams, 38 NY2d 605; People v White, 32 NY2d 393; Johnson v Zerbst, 304 US 458; People v Liotta, 79 NY2d 841.)
   OPINION OF THE COURT

Bellacosa, J.

Family Court, Bronx County, adjudicated Jamar A. a juvenile delinquent for unauthorized use of a vehicle based on acts which would constitute a crime if committed by an adult (see, Penal Law § 165.05 [1]). The Appellate Division reversed on the law and dismissed the juvenile delinquency petition (207 AD2d 251), concluding that Jamar A. was deprived of his right to a timely fact-finding hearing (see, Family Ct Act § 340.1). Two Justices dissented and the presentment agency appeals to this Court as of right on that ground (CPLR 5601 [a]).

The basis for the dismissal by the Appellate Division and the issue before us focus exclusively on Jamar A.’s speedy trial rights under Family Court Act § 340.1 (5) and (6). Only the "special circumstances” adjournment on February 25, 1993 is in question. We conclude that the order of the Appellate Division should be reversed and the Family Court adjudication should be reinstated.

The delinquency petition was filed on December 3, 1992 with respondent present in Family Court. The petition charged respondent with acts which, if committed by an adult, would constitute the crimes of grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, criminal mischief in the third and fourth degrees, unauthorized use of a vehicle in the third degree, criminal possession of stolen property, and petit larceny.

The court scheduled a fact-finding hearing for January 11, 1993 and released the juvenile to his mother. On the first set date, the presentment agency requested and was granted an adjournment to January 20th. Respondent failed to appear on the rescheduled date, and the court set another hearing for February 1, 1993. When respondent failed to appear a second time, the court issued a warrant and found good cause to adjourn to March 1. That ruling and adjournment are not in dispute.

Unexpectedly, the juvenile and his mother appeared in Family Court on February 25, 1993. Because the case was still scheduled for March 1, was not on any calendar for February 25, and no one expected the surprise appearance, the Judge naturally inquired of the presentment agency lawyer, "What date will you have your witness ready?” Counsel responded that he needed "a couple of days.” When the court suggested a March 8, 1993 adjourned date, the Law Guardian expressed personal inconvenience. The court then set March 10 as the new date and the Law Guardian said, "Thank you.”

The Family Court Judge admonished respondent that if he failed to appear for the next fact-finding hearing he would be remanded. Shortly after the February 25 appearance and special circumstances adjournment, respondent’s counsel filed the motion to dismiss the petition, based on the Family Court’s failure to explain the adjournment.

Special circumstances "is a matter that must be decided on a case-by-case basis, with due regard to the stated legislative goal of prompt adjudication” and, of course, within the demarcations of our governing precedents (Matter of Frank C., 70 NY2d 408, 414). Family Court Act § 340.1 (5) requires that a court shall state "on the record the reason” for an adjournment, and subdivision (6) adds the specification of a special circumstances "showing” to warrant the grant of an adjournment. The Family Court Judge satisfied the statutory and precedential rubrics here.

Family Court was presented with a manifest "special circumstances” development of a nonscheduled matter and the return to its courtroom of a warrant-sought juvenile. Everyone in the courtroom knew the witness-unavailability subject of the Family Court’s explicit inquiry, colloquy and ruling, all done on the record as required (see, Family Ct Act § 340.1 [5]). This record does not support the dissent’s criticism of the Family Court’s conduct as self-initiated or less than entirely appropriate to the circumstances. Since the "special circumstances” here are evident on the face of this record, this case is different in kind and in its salient facts from Matter of Frank C. (70 NY2d 408, supra), Matter of Randy K. (77 NY2d 398), and Matter of Nokia L. (81 NY2d 898). That the Family Court Judge did not ask questions in form or words considered more insightful in hindsight and did not utter the two words "special circumstances” does not erase the facial record (see, e.g. and compare, People v Spot ford, 85 NY2d 593, 598; People v Moissett, 76 NY2d 909, 911; People v Nixon, 21 NY2d 338, 353, cert denied sub nom. Robinson v New York, 393 US 1067). The words spoken and the action taken in the nisi prius setting constitute an effective and valid satisfaction of what the statute and we require.

Taken together, the following factors remove this case from the dismissal imperative of distinguishable precedents while also demonstrating compliance with the governing protocols: (1) the unscheduled, uncalendared matter; (2) the surprise appearance ahead of the scheduled date; (3) the outstanding warrant for two prior failures to appear on timely scheduled dates; (4) the open court unavailability of the presentment agency’s witnesses, inescapably reflected in the pointed colloquy directed at that very circumstance and created solely by the respondent’s unscheduled appearance; (5) the on-the-record exchange responsibly initiated by the Family Court Judge with both counsel present and participating concerning when witnesses would be available; and (6) the setting of a new, mutually satisfactory and scheduled appearance date to fulfill the statutory mandate for prompt adjudication.

It is unrealistic to speculate that police witnesses can be "easily summoned” to any Family Court, no less one in New York City, on an unscheduled date, or that the Family Court Judge should inquire differently or should otherwise interrupt a regularly scheduled calendar. Such inflexible, additional mandates measured against the circumstances and case, as events unfolded in the courtroom on February 25, 1993, ignore the exact subject matter exchange between the Judge and the attorneys "on the record” about making the witnesses available on a scheduled date and calendar when all necessary individuals could be on proper notice to be prepared to proceed.

Special circumstances, after all, are not an abstraction. Exploration at the appellate level of all its features and fulfillment in a given case should not be devoid of reasonable context. Our realistic approach does not dispense with or dilute the continued vitality and cogency of our precedents. Nor does our analysis impose any requirement for searching records on appeals in such matters or in this one. Rather, we are applying the rules sensibly when we conclude that this record unquestionably demonstrates fulfillment of the statutory and precedential prescriptions of what busy Family Court Judges are supposed to do with individuals before them in such surprise circumstances.

The Appellate Division majority and the dissenters in this Court nevertheless conclude that dismissal is mandated. We respectfully disagree for the reasons we have given and because our precedents were fully satisfied (compare, Matter of Aaron J., 80 NY2d 402).

Notably, in 1994, a new subdivision was added to the statute that prospectively declares definitive legislative guidance and governance in the particular area of warrant-abscondmentnonappearances at court scheduled dates (see, Family Ct Act § 340.1 [7]). Section 340.1 was amended to provide that if a warrant has been issued due to a respondent’s failure to appear in court, the date of issuance of the warrant to the date respondent subsequently appears in court shall be excluded from the computation of the time within which the hearing must commence under section 340.1 (see, L 1994, ch 501). This amendment does not govern this case, since respondent’s case was decided prior to the legislative change. By sustaining the Family Court’s correct ruling in this case under then-applicable principles, we neither sub silentio nor in any other way effect some retroactive ratification or application of the rules.

Finally, since this appeal is decided by application of the statute to the particular facts and record as governed by our pertinent, prestatutory amendment precedents, the presentment agency’s waiver argument is not reached as unnecessary.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the order of disposition of Family Court should be reinstated.

Simons, J.

(dissenting). I dissent.

The provisions of Family Court Act § 340.1 and the prior decisions of this Court establish defined procedures which must be followed when adjourning the fact-finding hearing in a juvenile delinquency proceeding. The policy reasons supporting the legislation, and the reasons why it should be strictly adhered to, have been documented in our earlier decisions and are no longer open to dispute. Because those procedures were not followed in this case, the order of the Appellate Division dismissing the petition should be affirmed.

Section 340.1 of Family Court Act specifies the time limits governing fact-finding hearings in juvenile delinquency adjudications. If, as here, the respondent is not in detention, the hearing must commence not more than 60 days after respondent’s initial appearance (Family Ct Act § 340.1 [2]). On the court’s own motion or that of the presentment agency or respondent, and upon a showing of good cause, the fact-finding hearing may be adjourned once for not more than 30 days (id., subd [4] [a], [b]). Successive motions to adjourn may be granted only for special circumstances (id., subd [6]). There must be "a showing, on the record” of special circumstances (id., subd [6]) and the court must "state on the record the reason for any adjournment” (id., subd [5]). We have held that adherence to these statutory provisions "[is] mandatory” (Matter of Randy K., 77 NY2d 398, 403; see also, Matter of Frank C., 70 NY2d 408, 414-415). The majority’s analysis is in direct conflict with the plain language of the statute and our prior decisions interpreting it.

In the case before us, Family Court summarily adjourned the proceeding upon Jamar’s unexpected appearance without inquiring whether petitioner’s witnesses were currently available, and without stating the reason for the adjournment, as Family Court Act § 340.1 (5) and (6) require. Indeed, the court’s failure to state that its reason for adjourning was the unavailability of witnesses raises a question whether the adjournment was in fact necessary because all the witnesses in this case, including the complainant, were police officers who may well have been easily summoned to court that day. Moreover, although respondent’s unexpected court appearance may have provided "good cause” for an adjournment, this was the second adjournment of the proceedings and in such cases the statute requires a showing of "special circumstances”, "a more exacting standard than that of 'good cause’ ” (see, Matter of Nakia L., 81 NY2d 898, 901). It is at least questionable whether the unavailability of a witness constitutes a special circumstance (id.), and certainly witness unavailability cannot qualify as a special circumstance unless unavailability is established on the record. Moreover, we have expressly held that a juvenile’s absence does not automatically qualify as a "special circumstance” (Matter of Randy K., 77 NY2d, at 404, supra). Thus, it was critical that the court develop a record demonstrating the need for an adjournment and state why special circumstances existed so that an appellate court could review whether it had correctly determined that the higher standard was satisfied (Matter of Frank C., 70 NY2d, at 414-415, supra).

Notwithstanding this established law, the majority holds that a record was unnecessary. After searching the record it concludes, intuitively, that the need for adjournment was obvious because the court "was presented with a manifest 'special circumstances’ development * * * [and] [e]veryone in the courtroom knew the witness-unavailability subject of the Family Court’s explicit inquiry” (majority opn, at 390). Such observations are no more than speculation unsupported by any showing on the record because the Family Court Judge neither required a showing nor identified, for the record, any special circumstances as the statute expressly requires. It is not for this Court or the Appellate Division to perform tasks statutorily assigned to others and declare that manifestly special circumstances exist.

In analyzing the case, the majority acknowledges that Family Court Act § 340.1 (5) requires a statement on the record of the reasons for adjournment (majority opn, at 390). Nevertheless, it apparently views the statute’s requirements as mere formalisms that need not be recognized. But the statute explicitly requires a record and, as our prior decisions make clear, the statute’s requirements are to be strictly enforced (Matter of Randy K., 77 NY2d, at 402-403, supra). This requirement has an important, substantive purpose. By requiring an inquiry and fact finding before granting an adjournment, the statute directs the court to discover whether an adjournment is, in fact, necessary. The procedure is designed to achieve the legislative purpose of swift and certain adjudication by avoiding unnecessary delay (Matter of Frank C., 70 NY2d, at 413, supra). The statute establishes a framework within which Family Court may determine the basis for a particular adjournment, and compliance with the statute provides the additional benefit of creating a record that is amenable to appellate review. "Requests for adjournments”, we said in Frank C., "should always be considered in light of the statutory standards, and the court’s conclusions should be stated briefly on the record so that the propriety of various delays can later be assessed by a reviewing court” (id., at 414-415). Adjournments granted without the required showing and determination, or with conclusory determinations of "good cause” or "special circumstances,” do not satisfy the statute (cf., Matter ofKasheen A., 197 AD2d 572).

The result here cannot be justified by reference to Matter of Aaron J. (80 NY2d 402). In that case we were required to reconcile two inconsistent provisions, one mandating prescribed time limits (Family Ct Act § 340.1) and the other authorizing the use of "adjustment services” for juveniles in certain cases (Family Ct Act § 308.1). We subordinated strict compliance with section 340.1 to the provisions of section 308.1 by tolling the provisions of section 340.1 for the period during which the juvenile was engaged in adjustment services. We did so to "harmonize the various provisions of related statutes and to construe them in a way that renders them internally compatible” (80 NY2d, at 407). There is no similar statutory conflict in this case, and thus no departure from the literal requirements of the statute is warranted.

It is interesting to note that in Matter of Nakia L. (supra), the dissent suggested that because some evidence of special circumstances appeared in the record (as the majority maintains is the case here), this Court should remit to Family Court to make factual findings and determine the right to an adjournment (Matter of Nakia L., 81 NY2d 898, 902, supra [Smith, J., dissenting in part]). The majority of this Court rejected that suggestion. In this case, however, the majority goes even further than the Nakia L. dissenter suggested. Rather than remit the case, it has divined special circumstances from an incomplete record and holds that the adjournment was justified.

The facts in this case, and the excuse proffered by the presentment agency on this appeal, are not materially different than the facts and excuses we rejected in Matter of Randy K. (77 NY2d, at 403, supra). That the Legislature subsequently amended the statute to address the problem in the future, as we urged them to do, is of no consequence in this case arising before the amendment’s effective date (see, L 1994, ch 501). Consistent with our prior decisions, we held in Randy K., and should hold here, that the statute is to be strictly construed to give effect to the statutory goal of ensuring speedy adjudications. Any other result, the majority said in Randy K., would constitute "impermissible judicial rewriting of the statute” (at 404). The majority here, by interpreting the statute to give the new amendment retroactive effect sub silentio not only rewrites the law governing this case involving a juvenile who failed to appear on a scheduled court date but also vitiates our prior decisions as they apply in all other cases.

Accordingly, I would affirm the order of the Appellate Division.

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

Order reversed, etc.

       It is the existence of the statute mandating these procedures which distinguish this case from People v Spotford (85 NY2d 593), People v Moissett (76 NY2d 919) and People v Nixon (21 NY2d 338) relied upon by the majority (see, majority opn, at 391). None of the proceedings in those cases were governed by a similar statutory mandate.


text:
    [657 NE2d 265, 633 NYS2d 270]
    The People of the State of New York, Respondent, v Rudolph Ford, Appellant.
    Argued September 21, 1995;
    decided October 24, 1995

      POINTS OF COUNSEL

      Beldock Levine & Hoffman, New York City (Melvin L. Wulf, Peter A. Perlman and Karen Dippold of counsel), David Scheinfeld, Noah Simeon Scheinfeld and Robert Cini for appellant.
    I. The court should reject the collateral consequence doctrine as it applies to deportation and guilty pleas. (People v Harris, 77 NY2d 434; Boykin v Alabama, 395 US 238; People v Harris, 61 NY2d 9; LaRossa Axenfeld & Mitchell v Abrams, 62 NY2d 583; Mathews v Eldridge, 424 US 319; United States v Parrino, 212 F2d 919, 348 US 840; United States v Russell, 686 F2d 35; Michel v United States, 507 F2d 461; United States v Yearwood; 863 F2d 6; United States v Olvera, 954 F2d 788.) II. Counsel’s failure to inform defendant, an alien, that his plea of guilty to reckless manslaughter would subject him to deportation, was ineffective assistance of counsel. (McMann v Richardson, 397 US 759; People v Baldi, 54 NY2d 137; People v Harris, 77 NY2d 434; Hill v Lockhart, 474 US 52; People v Hobson, 39 NY2d 479.) III. Defendant’s guilty plea was not knowing and voluntary because he was not informed and did not know that his guilty plea to reckless manslaughter would subject him to deportation. (People v Harris, 61 NY2d 9; People v Seaberg, 74 NY2d 1; People v Moore, 71 NY2d 1002; Boykin v Alabama, 395 US 238; McCarthy v United States, 394 US 459; North Carolina v Alford, 400 US 25; Brady v United States, 397 US 742; Mabry v Johnson, 467 US 504; Henderson v Morgan, 426 US 637; Carnley v Cochran, 369 US 506.) IV. The preferred, if not exclusive, remedy for a claim of ineffective assistance of counsel is a postconviction proceeding brought pursuant to CPL 440.10. (People v Bachert, 69 NY2d 593; People ex rel. Douglas v Vincent, 50 NY2d 901; People v Brown, 45 NY2d 852; People ex rel. Sedlak v Foster, 299 NY 291; People v Cooks, 67 NY 2d 100.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Seth M. Lieberman, Roseann B. MacKechnie and Richard T. Faughnan of counsel), for respondent.
    I. Defendant’s guilty plea was voluntary, knowing, and intelligent, even if, at the time of the plea, defendant was unaware of the possibility of deportation, because deportation is a collateral consequence of a criminal conviction. (North Carolina v Alford, 400 US 25; Brady v United States, 397 US 742; People v Fiumefreddo, 82 NY2d 536; People v Moore, 71 NY2d 1002; People v Harris, 61 NY2d 9; People v Modica, 64 NY2d 828; People v Blim, 46 NY2d 934; People v Johnson, 205 AD2d 707, 84 NY2d 868;
      People v Robbins, 118 AD2d 820; People v Brown, 80 NY2d 361.) II. The plea record and the presentence report permitted review of defendant’s claim that the trial court had erred in failing to inform him of the deportation consequences of a conviction of second degree manslaughter. Thus, CPL 440.10 (2) (c) mandated denial of that claim. In any event, that claim is without merit because constitutional due process does not require that a court inform a defendant of collateral consequence of a guilty plea. (People v Cooks, 67 NY2d 100; People v Morales, 58 NY2d 1008; United States v Osiemi, 980 F2d 344; United States v Montoya, 891 F2d 1273; United States v Romero-Vilca, 850 F2d 177; United States v Campbell, 778 F2d 764; United States v Russell, 686 F2d 35; Cordero v United States, 533 F2d 723; Fruchtman v Kenton, 531 F2d 946, 429 US 895; United States v Santelises, 476 F2d 787.) III. Assuming that defendant’s counsel failed to advise defendant of the deportation consequences of a guilty plea to second degree manslaughter, that failure would not constitute ineffective assistance of counsel under either the Federal or State Constitution. (Hill v Lockhart, 474 US 52; Strickland v Washington, 466 US 668; People v Hobot, 84 NY2d 1021; People v Flores, 84 NY2d 184; People v Baldi, 54 NY2d 137; People v Gagliardo, 209 AD2d 872, 84 NY2d 1011; People v Avila, 177 AD2d 426; People v Dor, 132 Misc 2d 568; United States v Banda, 1 F3d 354; Varela v Kaiser, 976 F2d 1357.) IV. Defendant did not provide sufficient documentary proof to warrant summary vacatur of his judgment of conviction. (People v Winkler, 74 NY2d 704; People v Lawson, 191 AD2d 514.)

      Jonathan E. Gradess, Albany, and Stacy Wolf for New York State Defenders Association, amicus curiae.

    I. The constitutional right to effective assistance of counsel requires that defense attorneys advise alien clients that deportation may result from entry of a guilty plea. (Gideon v Wainwright, 372 US 335; Wong Wing v United States, 163 US 228; Hill v Lockhart, 474 US 52; Johnson v Zerbst, 304 US 458; Strickland v Washington, 466 US 668; People v Baldi, 54 NY2d 137; Jones v Barnes, 463 US 745; People v Satterfield, 66 NY2d 796; People v Adams, 53 NY2d 241; People v Riley, 70 NY2d 523.) II. The decision of the Court below violates the guarantees of competent counsel and due process of law derived under the New York State Constitution (People v Avila, 177 AD2d 426; People v Boodhoo, 191 AD2d 448; United States v Porrino, 212 F2d 919; United States v Sambro, 454 F2d 918; United States v

      Santelises, 476 F2d 787; Michel v United States, 507 F2d 461; United States v Campbell, 778 F2d 764; United States v Yearwood, 863 F2d 6; People v Johnson, 66 NY2d 398; People v Bigelow, 66 NY2d 417.)

      Lucas Guttentag, New York City, Judy Rabinovitz and Arthur Eisenberg for American Civil Liberties Union and others, amici curiae.

    I. Appellant was deprived of the effective assistance of counsel in violation of the Sixth Amendment to the Federal Constitution. (Strickland v Washington, 466 US 668; Michel v United States, 507 F2d 461; United States v Russell, 686 F2d 35; United States v Porrino, 212 F2d 919, 348 US 840; United States v Del Rosario, 902 F2d 55, 498 US 942; Flores-Arellano v Immigration & Naturalization Serv., 5 F3d 360; Downs-Morgan v United States, 765 F2d 1534; Cuyler v Sullivan, 446 US 335.) II. The New York Constitution provides an independent and adequate basis for holding that defense counsel’s failure to advise a client about the deportation consequences of a plea constitutes ineffective assistance of counsel. (People v Baldi, 54 NY2d 137; People v Benn, 68 NY2d 941; People v Rivera, 71 NY2d 705; People v Roy, 122 AD2d 482.)

      Stern & Elkind (Kenneth H. Stem of the Colorado Bar, admitted pro hac vice, of counsel), Claudia Slovinsky, New York City, and Lory Rosenberg, of the District of Columbia Bar, admitted pro hac vice, for American Immigration Lawyers Association and others, amici curiae.

    The failure of defense counsel to adequately investigate the law and advise his client regarding the immigration consequences of his plea constitutes the ineffective assistance of counsel. (Fang Haw Tan v Phalen, 333 US 6; Jordan v De George, 341 US 223; United States ex rel. Klonis v Davis, 13 F2d 630; Downs-Morgan v United States, 765 F2d 1534; Government of Virgin Is. v Pamphile, 604 F Supp 753; Michel v United States, 507 F2d 461; Strickland v Washington, 466 US 668; Hill v Lockhart, 474 US 52; Coles v Peyton, 389 F2d 224.)
   OPINION OF THE COURT

Simons, J.

This appeal raises the question whether Trial Judges or defense counsel are under a duty to warn defendants of the possible deportation consequences before entering a guilty plea. We conclude that there is no such duty, and we therefore affirm.

I

On September 28, 1990, 19-year-old defendant Rudolph Ford was showing a gun to his girlfriend, Alicia Byron. Believing he had removed the bullets, defendant put the gun to her head and pulled the trigger. The gun discharged, and Byron was killed instantly. Defendant was indicted for manslaughter in the second degree (Penal Law § 125.15 [1]), criminal possession of a weapon in the second degree (Penal Law § 265.03), and criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]). With the advice of counsel, defendant pleaded guilty to manslaughter in the second degree in full satisfaction of the indictment and was sentenced to two to six years in prison. After serving the minimum sentence, he was paroled.

Defendant is a documented legal alien from Jamaica and, following his release, the Immigration and Nationalization Service instituted proceedings for his deportation based upon his conviction of a crime involving moral turpitude (see, 8 USC § 1251 [a] [2] [A] [i]).

Consequently, defendant moved in the Supreme Court for an order changing the manslaughter judgment to a judgment convicting him of criminally negligent homicide. The court granted the motion to the extent of vacating his plea and directing a new trial. It held that "where the facts surrounding the episode to which defendant pleads would not suggest to a reasonable person that the plea involves an admission of grossly immoral activity then, in those rare cases, the defendant should be told that even though what he describes to the court does not involve moral turpitude, he may nevertheless be deported, if he pleads guilty.” (157 Misc 2d, at 671.) The Appellate Division, construing defendant’s motion as one to vacate the plea pursuant to CPL 440.10, reversed Supreme Court’s order and reinstated the judgment of conviction. It held that under the doctrine of collateral consequences the court was not obligated to warn defendant of possible deportation before accepting his plea and that the failure of counsel to advise his client of that possibility before permitting him to plead did not constitute ineffective assistance of counsel (see, People v Ford, 205 AD2d 798).

II

A trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences (People v Harris, 61 NY2d 9, 19; Boykin v Alabama, 395 US 238, 244). The court is not required to engage in any particular litany when allocuting the defendant, but due process requires that the record must be clear that "the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant” (North Carolina v Alford, 400 US 25, 31, citing Boykin v Alabama, 395 US 238, supra; see also, People v Moissett, 76 NY2d 909, 910-911). Manifestly, a criminal court is in no position to advise on all the ramifications of a guilty plea personal to a defendant. Accordingly, the courts have drawn a distinction between consequences of which the defendant must be advised, those which are "direct”, and those of which the defendant need not be advised, "collateral consequences” (Fruchtman v Kenton, 531 F2d 946, 948, cert denied 429 US 895; and see, Michel v United States, 507 F2d 461, 466). A direct consequence is one which has a definite, immediate and largely automatic effect on defendant’s punishment (Cuthrell v Director, Patuxent Inst., 475 F2d 1364, cert denied 414 US 1005). Illustrations of collateral consequences are loss of the right to vote or travel abroad (Meaton v United States, 328 F2d 379), loss of civil service employment (United States v Crowley, 529 F2d 1066, cert denied 425 US 995), loss of a driver’s license (Moore v Hinton, 513 F2d 781), loss of the right to possess firearms (Penal Law § 400.00 [1] [b]) or an undesirable discharge from the Armed Services (Redwine v Zuckert, 317 F2d 336). The failure to warn of such collateral consequences will not warrant vacating a plea because they are peculiar to the individual and generally result from the actions taken by agencies the court does not control (see, United States v Sambro, 454 F2d 918, 922; Sanchez v United States, 572 F2d 210, 211).

Deportation is a collateral consequence of conviction because it is a result peculiar to the individual’s personal circumstances and one not within the control of the court system. Therefore, our Appellate Division and the Federal courts have consistently held that the trial court need not, before accepting a plea of guilty, advise a defendant of the possibility of deportation (see, People v Boodhoo, 191 AD2d 448; People v Williams, 189 AD2d 910, Iv denied 81 NY2d 978; Fruchtman v Kenton, supra; Cuthrell v Director, Patuxent Inst., supra; United States v Porrino, 212 F2d 919, 921, cert denied 348 US 840). We adopt that rule and conclude that in this case the court properly allocuted defendant before taking his plea of guilty to manslaughter in the second degree.

III

Nor did the failure of counsel to warn defendant of the possibility of deportation constitute ineffective assistance of counsel.

The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions (US Const 6th Amend; NY Const, art I, § 6). The standard for measuring the performance of counsel under the New York Constitution has been stated as follows:

"So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met” (People v Baldi, 54 NY2d 137, 147 [emphasis added]).

The phrase "meaningful representation” does not mean "perfect representation” (People v Modica, 64 NY2d 828, 829). In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel (People v Boodhoo, 191 AD2d 448, 449, supra; People v Mayes, 133 AD2d 905, 906).

In the present case, defendant was indicted for manslaughter in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. Each of these charges constitutes a felony, punishable by a maximum term of 15, 15 and 7 years respectively. Moreover, sentences upon the manslaughter conviction and the second degree possession count could have run consecutively, thereby exposing the defendant to a possible 30-year term of imprisonment (Penal Law § 70.25; and see, People v Robbins, 118 AD2d 820). Defendant received meaningful representation when counsel was able to limit his conviction to manslaughter in the second degree in full satisfaction of the indictment and to limit the sentence to two to six years.

Nor has defendant stated grounds for relief under the Federal Constitution. The two-part test in Strickland v Washington (466 US 668) requires a showing that counsel’s performance was deficient and that the deficiency in performance prejudiced defendant. Although the failure to advise a defendant of the possibility of deportation does not constitute ineffective assistance of counsel (see, United States v Del Rosario, 902 F2d 55, 59, cert denied 498 US 942; United States v Campbell, 778 F2d 764, 768; United States v Gavilan, 761 F2d 226, 228), some Federal courts have held that affirmative misstatements by defense counsel, may, under certain circumstances (Downs-Morgan v United States, 765 F2d 1534, 1540-1541; United States v Santelises, 509 F2d 703, 704; United States v Campbell, 778 F2d 764, 768-769; cf., People v Ramos, 63 NY2d 640). Defendant has not alleged here, however, that counsel incorrectly advised him about the risk of deportation or that counsel’s advice, if any, induced him to plead guilty.

Thus, we conclude that the defendant was not denied his constitutional rights when he pleaded guilty. The court was under no obligation to inform the defendant of any possible collateral consequences of his plea, including the possibility of deportation, nor was defendant denied effective assistance of counsel.

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

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

Order affirmed.

       The New York Sentencing Reform Act of 1995 (L 1995, ch 3) now requires trial courts to advise defendants of the possibility of deportation. However, the failure to do so does not aifect the voluntariness of a guilty plea (NY Sentencing Reform Act of 1995 §§ 30, 74 [b]).