author: Simons, J.

text:
    The People of the State of New York, Respondent, v Ricardo B., Appellant, et al., Defendant.
    Argued January 4, 1989;
    decided February 23, 1989

      POINTS OF COUNSEL

      Barry A. Schwartz for appellant.
    I. The evidence of guilt was legally insufficient to establish criminal negligence. It was also legally insufficient to establish the necessary element of causation. The indictment should be dismissed. (People v Eckert, 2 NY2d 126; People v Kreis, 302 NY 894; People v Bearden, 290 NY 478; People v Colosimo, 17 AD2d 683; People v Sanchez, 61 NY2d 1022; People v Marin, 65 NY2d 741.) II. The charge impermissibly diluted and shifted the burden of proof and inadequately set forth legal standards against which these juries could measure their determinations of fact. (Matter of Anthony M., 63 NY2d 270; People v Stewart, 40 NY2d 692; People v Kane, 213 NY 260; In re Winship, 397 US 358; People v Victor, 62 NY2d 374; People v Patterson, 39 NY2d 288; People v Beiter, 77 AD2d 214; People v Roberts, 72 AD2d 954.) III. The unauthorized dual trial infringed upon appellant’s right to counsel and right to a fair trial and right to a trial by jury. (Bruton v United States, 391 US 123; People v Ahmed, 66 NY2d 307; People v Lawrence, 64 NY2d 200; United States v Rimar, 558 F2d 1271, 435 US 922; People v

      Doran, 246 NY 409; People v Macerola, 47 NY2d 257; People v Gomberg, 38 NY2d 307; People v Perez, 65 NY2d 154; Powell v Alabama, 287 US 45; People v Arroyave, 49 NY2d 264.)

      Denis Dillon, District Attorney (Bruce E. Whitney and Anthony J. Girese of counsel), for respondent.
    I. Defendant was proven guilty of criminally negligent homicide beyond a reasonable doubt. (People v Warner-Lambert Co., 51 NY2d 295, 450 US 1031; People v Haney, 30 NY2d 328; People v Kibbe, 35 NY2d 407; People v Stewart, 40 NY2d 692; People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307; People v Bleakley, 69 NY2d 490; People v Bay, 67 NY2d 787; People v Giuliano, 65 NY2d 766; People v Way, 59 NY2d 361.) II. The court’s charge was correct. (People v Allen, 69 NY2d 915; People v McKenzie, 67 NY2d 695; People v Ingram, 67 NY2d 897; People v Little, 62 NY2d 1020; People v Harrell, 59 NY2d 620; People v Nuccie, 57 NY2d 818; People v Seabrooks, 120 AD2d 691; People v Beckles, 115 AD2d 749; People v Wynn, 108 AD2d 768; People v Glinsman, 107 AD2d 710.) III. The dual jury procedure utilized to try defendant and his codefendant was proper. (Matter of Voelckers v Guelli, 58 NY2d 170; Matter of Dorothy D., 49 NY2d 212; Gabrelian v Gabrelian, 108 AD2d 445, 66 NY2d 741; United States v Gonzalez, 610 F Supp 568; United States v Lewis, 716 F2d 16, cert denied sub nom. Motlagh v United States, 464 US 996; Smith v DeRobertis, 758 F2d 1151; Byrne v Matczak, 254 F2d 525, 358 US 816; United States v Figueroa, 618 F2d 934; People v Cruz, 66 NY2d 61, 70 NY2d 733.)
   OPINION OF THE COURT

Simons, J.

Defendant has been adjudicated a youthful offender upon a jury verdict finding him guilty of criminally negligent homicide. He appeals to this court from an order of the Appellate Division affirming the judgment, contending that the procedure employed by the trial court in trying him and a codefendant together before separate juries was unauthorized and unconstitutional. He identifies no specific prejudice to his case but asserts that the dual jury procedure is inherently prejudicial and should not be allowed. He also contends the evidence was insufficient to establish his guilt.

The charges arise from an automobile accident occurring at the intersection of Hempstead Turnpike and Silver Lane in Levittown, New York, on the evening of January 31, 1983. January 31 was a clear and dry evening and at the scene of the accident, Hempstead Turnpike, a six-lane divided highway, is level, straight and illuminated. A vehicle operated by Mildred Carmen, which had been proceeding west on Hemp-stead Turnpike, entered the intersection with a green light and turned left into Silver Lane. As it did so it was struck by two vehicles traveling east, one operated by defendant and the other by his codefendant Ahrens.

Eyewitnesses testified that the Ahrens vehicle struck the right front of the Carmen vehicle, then separated and skidded to the south curb where it flipped over. Defendant’s vehicle struck the right rear of the Carmen vehicle at approximately the same time and pushed it easterly down Hempstead Turnpike until the two came to a stop in the road about 100 feet from the intersection. Mrs. Carmen died instantly and codefendant Ahrens was seriously injured. Defendant and his passenger sustained only minor cuts and bruises.

Defendants were charged with second degree manslaughter and criminally negligent homicide on alternative counts of individual and accomplice liability. It was the prosecutor’s theory that the two defendants were racing before the accident and to support this he submitted evidence establishing that the cars had stopped abreast on Hempstead Turnpike at a red light located .4 miles west of the scene of the accident, that when the light changed, they left the intersection abruptly, accelerated at a high rate of speed, and traveled side by side until they struck the Carmen vehicle in the intersection at Silver Lane. Eyewitnesses testified that the cars approached the intersection with engines roaring loudly at speeds estimated between 60 and 90 miles per hour. No witness testified to hearing brakes or skidding sounds and no tire or skid marks were found at the scene. Nor did the witnesses observe defendant’s vehicle swerve before or after impact in an attempt to avoid the collision. The People also produced three reconstruction experts who corroborated the eyewitness estimates of speed. They testified that, on the basis of studies made of the vehicles and of the site, defendants’ vehicles were traveling between 70-90 miles per hour at the time of impact. An off-duty police officer and his 18-year-old son witnessed the accident from their stopped vehicle on Silver Lane. They testified that immediately after the accident defendant requested the son not to tell the police that the two cars were drag racing and to "tell them we were only doing 55 m.p.h. or we’ll get in trouble.”

It was the existence of this inculpatory statement by defendant that prompted the court to consider a joint trial with two juries. Because the statement was not admissible against codefendant Ahrens (see, Bruton v United States, 391 US 123), he moved for a severance and separate trial (see, CPL 200.40 [1]). The People opposed the application and requested that the indictments be tried jointly with a jury for each defendant. Over defendants’ objection the court ordered two juries selected and, in consultation with counsel, adopted a detailed procedure for identifying and segregating them. The trial proceeded with the juries hearing evidence common to the charges against both defendants but with one jury excused from the courtroom during presentation of evidence which was admissible only before the other. Each defendant was given the option of withdrawing his jury during presentation of the other’s defense. Neither did so. Separate openings and summations were employed and, without objection, one charge was given to both juries omitting mention of defendant’s statement. The juries were kept separated throughout the trial, they deliberated separately and neither was permitted to report a verdict until both had concluded deliberations. (For a full description of the procedures employed see, Santagata, One Trial, Two Juries — It Works in Extraordinary Cases, NYU, May 11, 1988, at 1, col 1.)

The right to trial by jury is guaranteed by both Federal and State Constitutions (US Const 6th Amend; NY Const, art I, § 2) and implemented by statute (CPL arts 260, 270). There is nothing in the Constitutions, the statutes or our decisions interpreting them, however, which expressly authorizes or prohibits the use of multiple juries in New York State. The People contend that the court had inherent power to fashion the dual jury procedure while defendants claim that such procedure was unauthorized. The power to regulate practice and procedure lies principally with the Legislature, not the courts (NY Const, art VI, § 30; see, Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5-6). However, the Constitution permits the courts latitude to adopt procedures consistent with general practice as provided by statute (id.). Although the Legislature has not addressed the practice followed in this case, its preference for joint trials is clear. In the interest of judicial economy it has granted the courts broad discretion to join a wide variety of charges and parties for prosecution if doing so does not jeopardize the rights of the defendants (CPL 200.20 and 200.40). In addressing the scope of the power to be implied by that section, we have held that if proof against codefendants is supplied by the same evidence only the most cogent reasons warrant a severance (see, People v Bornholdt, 33 NY2d 75, 87).

In this case the People’s evidence against the two defendants was the same except for defendant’s inculpatory statement and the use of dual juries was clearly an attempt by the court to abide by our directions and still preserve Ahrens’ right to confrontation. The court’s power to employ multiple juries to do so, while not explicit in the statute, may logically be implied from its terms (cf., People v Teicher, 52 NY2d 638, 650-652). Moreover, the method it adopted is consistent with the general practice and procedure authorized by the Legislature in the joinder statutes and it is in accord with the powers granted by New York’s Constitution (NY Const, art VI, § 30). That the procedure chosen to further the legislative purpose was novel did not render it improper. The courts may adopt new procedures which are fair and which facilitate the performance of their responsibilities (see, Judiciary Law § 2-b [3] ["A court of record has power * * * to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it”]).

Our reasoning is similar to that adopted by other States which have held the procedure impliedly authorized under similar grants of discretionary power over joinder and severance of indictments (see, e.g., People v Wardlow, 118 Cal App 3d 375, 173 Cal Rptr 500; State v Corsi, 86 NJ 172, 430 A2d 210; People v Church, 102 Ill App 3d 155, 429 NE2d 577), concluding that the use of multiple juries is merely a partial form of severance to be evaluated under standards for reviewing severance motions generally. Indeed, several courts have refused to reverse convictions in the absence of identified prejudice even after determining that the trial court lacked power to impanel multiple juries (see, e.g., State v Lambright, 138 Ariz 63, 673 P2d 1; State v Watson, 397 So 2d 1337 [La], cert denied 454 US 903).

Nor is the procedure inherently prejudicial. The overwhelming body of judicial authority in the Nation holds that the use of multiple juries, whether statutorily authorized or not, does not deny defendants their constitutional right to a jury trial or, in the absence of identified prejudice, to due process of law (see, Annotation, Propriety of Use of Multiple Juries at Joint Trial of Multiple Defendants in State Criminal Prosecution, 41 ALR4th 1189; Annotation, Propriety of Use of Multiple Juries at Joint Trial of Multiple Dependents in Federal Criminal Case, 72 ALR Fed 875). Commentators have also accepted the practice (see, Gaynes, Two Juries/One Trial: Panacea of Judicial Economy or Personification of Murphy’s Law, 5 Am J Trial Advoc 285 [1981]; Note, Criminal Law — Multiple Jury Joint Trials — On the Joint Trial of Two Defendants, the Empanelling of Two Juries Simultaneously is Permissible, 2 Fordham Urb LJ 407) and the American Bar Association has approved its use (see, ABA Standards for Criminal Justice, Joinder and Severance, standard 13-3.2, at 13-36 [2d ed 1980]). We agree with these authorities.

Nevertheless, we share the reservations other courts have expressed. We affirm here because we are satisfied that the Trial Justice exercised her discretion within permissible legal limits when she ordered two juries and that the procedure did not prejudice the defense. Customarily, when a court is presented with a Bruton problem because of inculpatory out-of-court statements by one or both codefendants, it has the option of (1) deleting references to the codefendant in the statement, (2) seeking the consent of the People to a joint trial without the evidence or (3) ordering separate trials. In this case, defendant’s statement could not be redacted and the use of the only other option, a joint trial without the statement or separate trials in a case involving a race between two cars, would result in serious prejudice to the People. Moreover, the trial involved over 25 witnesses, five of them reconstruction experts, and recalling all these witnesses in two separate trials would be not only time consuming and expensive to the People but inconvenient to the witnesses. Conversely, the evidence which was not admissible against the codefendant was limited and did not require frequent removal of the juries. Under the circumstances, the harm to defendant, if any, resulting from the use of separate juries was little more than that occurring in the usual joint trial and existed only because of the logistics of managing two separate juries. The risk of error arising from the procedure was clearly outweighed by judicial economy, witness convenience and the possibility of prejudice or inconsistent verdicts which might result from sequential trials.

It should be clear, however, that multiple juries are the exception, not the rule. In this day of massive caseloads and an overburdened criminal justice system judicial economy is not a negligible consideration and joint trials with multiple juries have obvious attractions, particularly in cases involving Bruton problems (see, Bruton v United States, 391 US 123, supra) or antagonistic defenses. The first order of business of the criminal courts, however, is justice, not economy or convenience and the use of multiple juries can only magnify the problems inherent in joint trials because of the need to insulate the juries from inadmissible evidence or argument. Multiple juries are to be used sparingly and then only after a full consideration of the impact the procedure will have on the defendants’ due process rights and after thorough precautions have been taken to protect those rights. We are satisfied that the Trial Justice properly did so in this case.

Defendant also contends the evidence was insufficient to establish his guilt. We agree with the Appellate Division that the evidence, viewed in the light most favorable to the People, supported the jury’s verdict. Section 125.10 of the Penal Law provides that a person is guilty of the crime of criminally negligent homicide when, with criminal negligence, he causes the death of another person. A person acts with criminal negligence with respect to a result when "he fails to perceive a substantial and unjustifiable risk that such result”, death in this case, will result (see, Penal Law § 15.05 [4]). The failure to perceive this risk must constitute a gross deviation from the standard of care which a reasonable person would have observed under the same circumstances (id.).

What amounts to criminal negligence "depends, of course, entirely on the circumstances of the particular conduct” (People v Haney, 30 NY2d 328, 335). Certain guiding principles can be stated, however. First, criminal liability cannot be predicated upon every careless act merely because its carelessness results in another’s death. Second, criminal negligence involves the failure to perceive the risk in a situation where the offender has a legal duty of awareness. Third, liability for criminal negligence should not be imposed unless the inadvertent risk created by the conduct would be apparent to anyone who shares the community’s general sense of right and wrong. Finally, the finder of fact must evaluate the actor’s failure of perception and determine whether, under all the circumstances, it was serious enough to be condemned (see, People v Haney, 30 NY2d 328, 335, supra; Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 125, at 492-493).

Contrary to defendant’s contention, the People proved more than excessive speed in this case. There was evidence introduced that defendant failed to observe a vehicle plainly visible in front of him or take steps to avoid it, and that his failure was caused by engaging in a race with another car on a busy divided highway in a metropolitan area. This evidence is sufficient to support the jury’s verdict finding defendant guilty of criminally negligent homicide for failing to perceive a substantial and unjustifiable risk that death would result from his conduct (see, Penal Law §§ 125.10, 15.05 [4]).

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

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

Order affirmed.

       CPL 200.40 was amended subsequent to this trial. The amendment authorizes the court to order joinder or severance "or provide whatever other relief justice requires” (CPL 200.40 [1], L 1984, ch 672, §2). The amendment was precipitated by concerns of "unwarranted burdens on the criminal justice system and * * * unfair hardship on crime victims and other witnesses” (see, Mem of Governor Cuomo, Aug. 1, 1984, 1984 McKinney’s Session Laws of NY, at 3631). The quoted provision of the amendment is similar to rule 14 of the Federal Rules of Criminal Procedure which authorizes the court to sever indictments or "provide whatever other relief justice requires”. The Federal courts have construed rule 14 as authorizing multiple juries (see, United States v Rowan, 518 F2d 685, 689-690, cert denied sub nom. Jackson v United States, 423 US 949).


source: Caselaw Access Project

author: Bellacosa, J.

license: Public Domain

text:
    In the Matter of Candida Campagna, Appellant, v Gail S. Shaffer, as Secretary of State of the State of New York, Respondent.
    Argued January 5, 1989;
    decided February 16, 1989

      POINTS OF COUNSEL

      Michael T Wallender, John T. DeGraff, Jr., and Brian J. McCann for appellant.
    I. The Secretary of State is not authorized to issue nonsolicitation orders nor to condition approval of office relocations. (Matter of Sullivan Co. v Miller, 289 NY 110; Rapp v Carey, 44 NY2d 157; Matter of Broidrick v Lindsay, 39 NY2d 641; Subcontractors Trade Assn. v Koch, 62 NY2d 422; Matter of Fullilove v Carey, 62 AD2d 798, 48 NY2d 826; Matter of Fullilove v Beame, 48 NY2d 376; Under 21, Catholic Home Bur. v City of New York, 65 NY2d 344; Matter of Gold v Lomenzo, 29 NY2d 468; Matter of Oneida County v Berle, 49 NY2d 515; Thompson v Lomenzo, 78 Misc 2d 298, 48 AD2d 869.) II. The nonsolicitation orders violate Campagna’s First Amendment rights as a licensee and a real property owner located within a nonsolicitation area. (Young v American Mini Theatres, 427 US 50; Stanley v Georgia, 394 US 557; Red Lion Broadcasting Co. v FCC, 395 US 367; Fox v Board of Trustees, 841 F2d 1207; Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748; City of New York v American School Publ., 119 AD2d 13; Hornstein v Hartigan, 676 F Supp 894; Carlin Communications v Federal Communications Commn., 749 F2d 113; Consolidated Edison Co. v Public Serv. Commn., 447 US 534; Palko v Connecticut, 302 US 319.) III. The nonsolicitation orders and respondent’s refusal to issue unrestricted licenses for new and additional real estate offices violate petitioner’s right to equal protection. (Salem Inn v Frank, 522 F2d 1045; Greenberg v Bolger, 497 F Supp 756; Yick Wo v Hopkins, 118 US 356; People v Goodman, 31 NY2d 262; Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d 686; United States v Falk, 479 F2d 616; Perry v Sindermann, 408 US 593.) IV. The prior approval requirement of 19 NYCRR 175.20 (d) has been applied as an unconstitutional prior restraint. (Southeastern Promotions v Conrad, 420 US 546; Bantam Books v Sullivan, 372 US 58; New York Times Co. v United States, 403 US 713; Secretary of State of Md. v Munson Co., 467 US 947; Illinois Assn. of Realtors v Village of Bell-wood, 516 F Supp 1067; Cantwell v Connecticut, 310 US 296; Freedman v Maryland, 380 US 51.)

      Robert Abrams, Attorney-General (Kathie Ann Whipple, O. Peter Sherwood, Richard G. Liskov and Ellen J. Fried of counsel), for respondent.
    I. The challenged orders and regulation are a proper and legitimate exercise of the Secretary’s authority to regulate brokers and eliminate improper practices. (Matter of Sullivan Co. v Miller, 289 NY 110; Galbreath-Ruffin Corp. v 40th & 3rd Corp., 25 AD2d 114, 19 NY2d 354; Dodge v Richmond, 5 AD2d 593; Metz v People, 73 Misc 2d 219; Kostika v Cuomo, 41 NY2d 673; Matter of Diona v Lomenzo, 26 AD2d 473; Matter of Butterly & Green v Lomenzo, 36 NY2d 250; Matter of Gold v Lomenzo, 29 NY2d 468; Matter of Russo v Shaffer, 131 AD2d 853; Heinemann Agency v Ghezzi, 49 AD2d 747.) II. The Secretary’s regulatory scheme is consistent with petitioner’s right to commercial speech. (Ohralik v Ohio State Bar Assn., 436 US 447; Friedman v Rogers, 440 US 1; Matter of Greene, 54 NY2d 118, cert denied sub nom. Greene v Grievance Comm., 455 US 1035; In re R. M. J., 455 US 191; Central Hudson Gas & Elec. Corp. v Public Serv. Commn., 447 US 557; Fox v Board of Trustees, 841 F2d 1207; Curtis v Thompson, 840 F2d 1291; City of New York v American School Publ., 119 AD2d 13, 69 NY2d 576; Matter of Russo v Shaffer, 131 AD2d 853.) III. The Secretary’s regulatory scheme does not violate appellant’s right to equal protection. (City of New Orleans v Dukes, 427 US 297; Central Hudson Gas & Elec. Corp. v Public Serv. Commn., 447 US 557; Holt Civic Club v Tuscaloosa, 439 US 60; Ft. Smith Light Co. v Paving Dist., 274 US 387; McGowan v Maryland, 366 US 420; Matter of Toia v Regan, 40 NY2d 837; Heimbach v State of New York, 89 AD2d 138, 59 NY2d 891, 464 US 956; Day-Brite Light, v Missouri, 342 US 421; Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d 686.)
   OPINION OF THE COURT

Bellacosa, J.

Petitioner, a licensed real estate broker, challenges an order of the respondent Secretary of State, dated September 6, 1977, which interdicts real estate brokers and salespersons from soliciting for sale residential realty in eastern Bronx County. A related regulatory practice restricting the number of brokers permitted to operate in areas covered by the nonsolicitation order is also attacked. The lower courts upheld the authority of the Secretary of State to issue the order and to control the number of brokers in the area and declared the actions constitutional.

The Appellate Division order appealed as of right should be reversed because the Secretary of State’s power to regulate real estate brokers does not authorize the regulations under review. By deciding the case traditionally on the narrowest ground available, we need reach no other issue and do not reach the constitutional issue adjudicated by the lower courts as to whether this wholesale ban on solicitation is violative of the First Amendment (Central Hudson Gas & Elec. Corp. v Public Serv. Commn., 447 US 557).

The responsibility for licensing real estate brokers has been expressly delegated to the Secretary of State (Real Property Law § 441-a). The Secretary is also authorized to discipline any licensees who have demonstrated "untrustworthiness” (Real Property Law § 441-c) and is empowered to enact rules and regulations to effectuate this authority (Executive Law § 91) which, reasonably interpreted, authorizes her to set standards of conduct for the real estate industry and to promulgate regulations pertaining to the licensing and disciplining of real estate brokers. In 1969, the Legislature declared in Executive Law § 296 (3-b) that it shall be unlawful "for any real estate broker * * * to represent that a change has occurred or will or may occur in the composition [of a neighborhood or block] with respect to race, creed, color [or] national origin * * * and to represent, directly or indirectly, that this change will or may result in undesirable consequences * * * including but not limited to the lowering of property values, an increase in criminal or anti-social behavior, or a decline in the quality of schools or other facilities.”

To further this State policy of preserving stable and integrated communities and of avoiding churning and panic selling, the Secretary of State, acting expressly under both Real Property Law article 12-A and Executive Law § 91, promulgated a regulation which prohibited licensed real estate brokers from representing to homeowners that the value of their homes was decreasing due to an influx into the community of people of a different race, color or creed (19 NYCRR 175.17 [a]). The antiblockbusting regulation was initially to be enforced by individualized cease and desist orders against brokers soliciting individual homeowners who had notified the Secretary that they did not desire to sell or lease their property (19 NYCRR 175.17 [b]).

In the summer of 1977, residents and community representatives in eastern Bronx County complained to the Department of State of excessive solicitation and aggressive activities by real estate brokers in the community, despite the use of cease and desist orders. Following a public hearing on the issue, the Secretary of State issued an order under challenge in this lawsuit, which states in pertinent part "that all real estate brokers and salespersons are hereby restricted and shall cease and desist from soliciting listings of residential properties for sale and for purchase in any manner,' including but not limited to solicitation by means of letters, postcards, telephone calls, door-to-door canvassing, window signs, billboards, advertisement by handbills or news publications except news publications of general circulations within the boundaries of Community Planning Board 9, 10, 11 and 12 of Bronx County. That all solicitation be and is hereby prohibited until further notice” (record on appeal, vol I, at 46).

In addition to issuing the nonsolicitation order, the Secretary of State promulgated a regulation, also at issue here, providing that: "No broker shall relocate his principal office or any branch office without prior approval of the department” (19 NYCRR 175.20 [d]).

In June 1984, petitioner Campagna, a licensed real estate broker who resides in The Bronx, closed her real estate office in Stormville, Dutchess County. Six months later, she notified the Department that she wished to relocate her office to her Bronx residence within the area of the nonsolicitation order. The Department conditionally acquiesced.

In March 1985, petitioner sought a declaratory ruling from the Department that the nonsolicitation order and license relocation restrictions should not be enforced against petitioner and other licensees similarly situated. The Department declined to rule and this litigation ensued.

Petitioner contends that the Secretary of State lacked the authority to issue the order, that the Secretary has no authority to approve or condition broker relocation and that, in any event, her right to free speech was violated. She also alleges that the order unduly restricts her business activity, causing her economic hardship.

The Secretary of State defends, contending that it is within her expressly delegated authority to determine what conduct constitutes untrustworthiness and that she has determined that all broker-initiated contact in this specified area constitutes untrustworthiness. The Secretary also argues that the order is consistent with the legislatively declared policy to ban blockbusting and is a reasonable means to achieve that goal.

The Secretary claims she has authority to approve broker relocation under Real Property Law article 12-A generally and Real Property Law § 441-a (5) specifically, which provides in part: "Change of address. Notice in writing * * * shall be given the department * * * by a licensed real estate broker on his own behalf and on behalf of each salesman associated with him of any change in his or its principal business address.”

Before turning to the substance of our analysis, we note that we were previously confronted with a challenge to the scope and validity of a nonsolicitation order covering different geographic areas. In Matter of Hawley v Cuomo (46 NY2d 990), a 1976 nonsolicitation order encompassing all of Brooklyn and Queens was at issue, and we assumed without deciding that the Secretary had authority to issue the order. We nonetheless invalidated the order there as arbitrary and capricious, noting that "the facts before respondent failed to establish any rational basis for promulgation of an order so broad in geographic scope” (id., at 992).

Agencies, as creatures of the Legislature, act pursuant to specific grants of authority conferred by their creator. In discharging responsibilities, an agency is "clothed with those powers expressly conferred by its authorizing statute, as well as those required by necessary implication [citations omitted]. Where an agency has been endowed with broad power to regulate in the public interest, we have not hesitated to uphold reasonable acts on its part designed to further the regulatory scheme” (Matter of City of New York v State of New York Commn. on Cable Tel., 47 NY2d 89, 92). It is correspondingly axiomatic, however, that an administrative officer has no power to declare through administrative fiat that which was never contemplated or delegated by the Legislature. An agency cannot by its regulations effect its vision of societal policy choices (Matter of Consolidated Edison Co. v Department of Envtl. Conservation, 71 NY2d 186, 191-192; Boreali v Axelrod, 71 NY2d 1, 9), and may adopt only rules and regulations which are in harmony with the statutory responsibilities it has been given to administer.

In Boreali v Axelrod (supra), for example, the Public Health Council was held for a number of reasons to have exceeded the boundaries of its lawfully delegated authority. A key feature of that case insofar as it bears on this case was that the Legislature had never articulated a policy regarding the public smoking controversy. In marked distinction in the instant case, the Legislature has condemned blockbusting, recognizing it as destructive, illegal and against the common good.

The question for us, however, is whether the nonsolicitation order in this case exceéded whatever authority the Secretary did have. We conclude that it did.

The Legislature has explicitly enumerated the types of solicitation it views as forbidden blockbusting activity. Brokers are not to represent "that a change has occurred or will or may occur in the composition [of the neighborhood] with respect to race, creed, color, national origin * * * [and] that this change will or may result in undesirable consequences” (Executive Law § 296 [3-b]).

The nonsolicitation order at issue leaps well beyond that legislative articulation and interdicts administratively all broker-initiated solicitation, not just the illegal solicitation as targeted by the Legislature. Thus, the Secretary has gone beyond administering the written law and has, under color of regulatory authority, actually rewritten and extended the law. The agency cannot make unlawful what the Legislature still has on the books as lawful.

Boord v O’Brien (277 App Div 253, affd without opn 302 NY 890) provides a compelling analogue. There, the New York City Council, addressing complaints that hotel runners were fraudulently inducing persons to patronize certain hotels, amended section 436-3.0 of the Administrative Code of the City of New York in 1947 to provide "that a law be enacted permitting only those men who already possess licenses to continue in the business and providing that no additional licenses be issued. * * * The [police] commissioner may make such rules, regulations and orders as he may deem necessary for licensing and conduct of hotel runners” (Local Laws, 1947, No. 39 of City of New York). The Police Commissioner resolved that only persons who had no hotel in mind could be solicited. A licensed hotel runner balked, and the Appellate Division ruled as follows: "The city’s legislature chose to continue the business of hotel runner and created a licensing system to continue it under regulations intended to eliminate abuses. The mandate of the legislature was thus specific and defined. The commissioner could adopt regulations to effect the objects of the statute, but he could not substitute his own opinion of what was in the public interest and adopt regulations which would have the effect of eliminating the business and nullifying the statute. * * * Testing the regulations, therefore, by the standard of whether they implement the law, we find that the regulations cannot be sustained. The commissioner has gone beyond executing the law as written by the city legislature and undertaken to cut down the business of hotel runner below that permitted by law” (Boord v O’Brien, 277 App Div 253, 256-257 [Peck, P. J.], supra).

Significantly, the court noted that "the commissioner did not attempt to confine his regulations to preventing misrepresentations or limiting licensees to persons of good character, which were the stated objects of the code provisions, but attempted to curtail the legitimate activity of a hotel runner” (id., at 257). The court concluded that while elimination of the business itself may be necessary to end the abuses, that plenary goal was for the Legislature and not the Commissioner to determine (id., at 258). In the instant case, as in Boord (277 App Div 253, supra), the Legislature identified abuses in the real estate industry and enacted legislation designed to curtail them. If the only way to prevent blockbusting is to ban all broker solicitation in certain areas, that is a policy choice for the Legislature, not for the agency. That would, of course, have to pass constitutional muster, but would enjoy the threshold legislative presumption of constitutionality.

The means chosen by this agency to carry out its delegated task in this area are limited to its authority to regulate broker untrustworthiness flowing from unlawful discriminatory practice of blockbusting, only as the Legislature has defined it (see, Burlington Truck Lines v United States, 371 US 156). By promulgating the nonsolicitation order at issue, the Secretary exceeded her statutory mandate and sought to exercise a power she did not have.

Interestingly, the record offers no identified authority source for the particular and broad antidote selected by the Secretary to counteract the poison of blockbusting. While the record establishes that the subject community was besieged by unlawful blockbusting activity and that the then existing remedy —cease and desist orders — was insufficient, there was no discussion on how to strengthen enforcement of that case-by-case mechanism. There is no evidence that enhanced disciplinary measures were considered that would punish only those who were individually engaging in or demonstrating an intent to engage in invidious blockbusting activity (compare, Administrative Code former §§ Cl-1.0 — Cl-9.0). Startlingly, no provision was made to require a periodic review of the neighborhood covered by the nonsolicitation order to assess whether the need for an otherwise permanent and blanket ban still existed (compare, Administrative Code § 8-204). A 12-year-old public hearing record cannot float as proof that certain neighborhoods, at one time plagued by blockbusters, justified such all-out interventive restrictions imposed in perpetuity.

Finally, the issue with respect to the relocation of licensees is answered conclusively by Council for Owner Occupied Hous. v Abrams (72 NY2d 553) and by Real Property Law § 441-a (5) as well. The statute requires that the Secretary of State receive only notification of relocation. Thus, the regulation (19 NYCRR 175.20 [d]), which establishes preapproval to the licensee’s relocation and which in this case imposed conditions, exceeds the notification function of the statute and is invalid.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition should be granted declaring the regulations at issue invalid.

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

Order reversed, etc.


author: Chief Judge Wachtler. Titone, J.

text:
    Emma McDougald et al., Respondents, v Sara Garber et al., Appellants.
    Argued January 4, 1989;
    decided February 21, 1989

      POINTS OF COUNSEL

      Charles L. Bach, Jr., Luke M. Pittoni and Michael F. McGowan for Sara Garber, appellant.
    I. The trial court erred in instructing the jury that, if it found in favor of respondents on the liability issue, it must award money damages to respondent Emma McDougald for conscious pain and suffering unless it found respondent was “totally incapable of experiencing any unpleasant or painful sensation” and “totally unaware of her condition or totally incapable of any emotional reaction” since such a charge effectively shifted the burden of proving complete lack of consciousness to appellants; further error was committed when the Judge instructed the jury to consider a separate item of damages connoted “loss of the pleasures and pursuits of life” which item could be awarded irrespective of whether respondent had any consciousness or awareness of her loss. II. The judicial creation, in a jury trial of a medical malpractice case, of a separate category of general damages for nonpecuniary loss entitled “loss of the pleasures and pursuits of life” contravenes the sound public policy of this jurisdiction. (Ransom v New York & Erie R. R. Co., 15 NY 415; Kavanaugh v Nussbaum, 129 AD2d 559; Ledogar v Giordano, 122 AD2d 834; Dugas v Kansas City S. Ry. Lines, 473 F2d 821, 414 US 823; Jones v Simeone, 112 AD2d 772; Tinnerholm v Parke, Davis & Co., 411 F2d 48; Warmsley v City of New York, 89 AD2d 982; Riddle v Memorial Hosp., 43 AD2d 750; Flannery v United States, 718 F2d 108, 467 US 1226; Thompson v National R. R. Passenger Corp., 621 F2d 814.) III. The liability verdict against appellant Garber must be set aside and judgment entered in appellant’s favor since the sole theories of liability upon which the trial jury assessed damages against appellant were far beyond the scope of the bill of particulars upon which respondents’ counsel proceeded to trial. (Nelson v New York Univ. Med. Center, 51 AD2d 352; State of New York v Horsemen’s Benevolent & Protective Assn., 34 AD2d 769; Xavier v Grunberg, 67 AD2d 632; Holland v Baker, 30 AD2d 136; Forman v Davidson, 74 AD2d 505; City of New York v Freedberg & Assocs., 62 AD2d 407.) IV. The trial court erred in permitting respondents’ counsel, over appellant’s objection, to request specific sums of money during summation since that ruling contravened the public policy of this jurisdiction; said error requires reversal and the award of a new trial on damages. (Tate v Colabello, 58 NY2d 84; Bagailuk v Weiss, 110 AD2d 284; Bechard v Eisinger, 105 AD2d 939; Vargas v Rosal-Arcillas, 108 Misc 2d 881; Vigo v New York Hosp., 113 Misc 2d 972; Braun v Ahmed, 127 AD2d 418.) V. Under the circumstances of this trial, the allowance of expert medical testimony concerning significant neurological findings of respondents’ examining neurologist which contradicted findings contained in the only report timely served upon appellant’s counsel constituted reversible error. (Hoenig v Westphal, 52 NY2d 605; Allen v Crowell-Collier Publ. Co., 21 NY2d 403; Kastner v Rodriquez, 91 AD2d 950; Knight v Long Is. Coll. Hosp., 106 AD2d 371.) VI. As a matter of law the award of $1.5 million to respondent Johnny McDougald for his derivative cause of action is unsupported by the record and must be reversed. (Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 46 NY2d 528.)

      Steven J. Ahmuty, Jr., and Thomas R. Newman for New York Infirmary, appellant.
    I. “Loss of enjoyment of life” should be treated as a component of the “pain and suffering” element of damages. Separate awards for “loss of enjoyment of life” and “pain and suffering” lead to duplicative and excessive jury verdicts. (Sharapata v Town of Islip, 56 NY2d 332; Coyne v Campbell, 11 NY2d 372; Reid v Terwilliger, 116 NY 530; Harris v Standard Acc. & Ins. Co., 297 F2d 627; Howard v Lecher, 42 NY2d 109; Gretchen v United States, 618 F2d 177; Ransom v New York & Erie R. R. Co., 15 NY 415; Ledogar v Giordano, 122 AD2d 834; Kavanaugh v Nussbaum, 129 AD2d 559, 71 NY2d 535; Gallo v Supermarkets Gen. Corp., 112 AD2d 345.) II. As a matter of law, there was insufficient evidence to support the jury’s award of damages for nonpecuniary loss. (Rochester Tel. Corp. v Green Is. Constr. Corp., 51 NY2d 788; Blum v Fresh Grown Preserve Corp., 292 NY 241; Cohen v Hallmark Cards, 45 NY2d 493; Fiederlein v New York City Health & Hosps. Corp., 56 NY2d 573; Tebbutt v Virostek, 65 NY2d 931; Wittman v Gilson, 120 AD2d 964, 70 NY2d 970; Spadaccini v Dolan, 63 AD2d 110; Jones v City of New York, 57 AD2d 429; Parker v McConnell Mfg. Co., 40 AD2d 587; Guiltinan v Columbia Presbyt. Med. Center, 97 Misc 2d 137.) III. The affirmance of the court below, without opinion, of the record $1.5 million award for loss of services, which the Trial Judge refused to reduce because of his mistaken view of the legally permissible considerations, constitutes legal error as well as an abuse of discretion as a matter of law. The matter should be remitted to the court below for further review of the award, with directions that the court may not consider the husband’s services in determining excessiveness. (Gallo v Supermarkets Gen. Corp., 112 AD2d 345; Cover v Cohen, 92 AD2d 928, 61 NY2d 261; Millington v Southeastern Elevator Co., 22 NY2d 498; Barasch v Micucci, 49 NY2d 594; Dagnello v Long Is. R. R. Co., 289 F2d 797.)

      Michael A. Ellenberg for Sonia Armengol and others, appellants.
    I. There can be no recovery for loss of enjoyment of life or for pain and suffering where plaintiff is comatose and in a vegetative state. (Huertas v State of New York, 84 AD2d 650; Spadaccini v Dolan, 63 AD2d 110; Fiederlein v New York City Health & Hosps. Corp., 56 NY2d 573; Blunt v Zinni, 32 AD2d 882; Parker v McConnell Mfg. Co., 40 AD2d 587; Guiltinan v Columbia Presbyt. Med. Center, 97 Misc 2d 137; Rufino v United States, 829 F2d 354; Stratis v Eastern Air Lines, 682 F2d 406; Ratka v St. Francis Hosp., 44 NY2d 604.) II. Separate awards of damages for “conscious pain and suffering” and for “loss of enjoyment of life” lead to excessive and duplicative jury verdicts and are inappropriate. (Tate v Colabello, 58 NY2d 84; Caprara v Chrysler Corp., 52 NY2d 114; Ledogar v

      Giordano, 122 AD2d 834; Gallo v Supermarkets Gen. Corp., 112 AD2d 345; Sternemann v Langs, 93 AD2d 819; Zapata v City of New York, 96 AD2d 779; Warmsley v City of New York, 89 AD2d 982; Alexander v Eldred, 100 AD2d 666, 63 NY2d 460; Terwilliger v State of New York, 96 AD2d 688; Riddle v Memorial Hosp., 43 AD2d 750.) III. There was insufficient evidence to sustain a verdict for conscious pain and suffering or for conscious loss of enjoyment of life. (Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 46 NY2d 528; Rossetti v Campanella, 118 AD2d 552; Knight v Long Is. Coll. Hosp., 106 AD2d 371; Donegan v Consumer’s Food & Royal Farms Supermarkets, 107 AD2d 791; Sternemann v Langs, 93 AD2d 819; Byczek v City of New York Dept. of Parks, 81 AD2d 823; Smith v Jankowski, 71 AD2d 812.)

      Thomas A. Moore for respondents.
    The trial court correctly permitted the jury to award Mrs. McDougald separate and distinct awards for conscious pain and suffering on the one hand and loss of enjoyment of the pursuits and pleasures of life on the other. (Shaw v United States, 741 F2d 1202; Thompson v National R. R. Passenger Corp., 621 F2d 814; Petition of United States Steel Corp., 436 F2d 1256, cert denied sub nom. Cook v United States Steel Corp., 402 US 987; Pierce v New York Cent. R. R. Co., 409 F2d 1392; Downie v United States Lines Co., 359 F2d 344, 385 US 897; McNeill v United States, 519 F Supp 283; Dyer v United States, 551 F Supp 1266; Nussbaum v Gibstein, 138 AD2d 193; Romeo v New York City Tr. Auth., 73 Misc 2d 124; Howard v Lecher, 42 NY2d 109.)

      Peter L. Zimroth, Corporation Counsel (Ingeborg B. Garfield and Fay Leoussis of counsel), for the City of New York, amicus curiae.

    Loss of enjoyment of life should, as a matter of public policy, remain part and parcel of the pain and suffering component of damage awards. This view is consistent with the overwhelming precedent and the public policy in New York, and has been adopted by a majority of State courts. The decision of the court below to the contrary should, therefore, be reversed and a new trial on damages ordered. To split the total award for pain and suffering into two separate categories will simply inflate already increasing jury awards without rendering them any less subjective nor appellate review thereof any more enlightened. Quite plainly, it runs directly counter to the Legislature’s recent attempts to stem the proliferation of runaway jury verdicts. (Ransom v New York &

      Erie R. R. Co., 15 NY 415; Bottone v New York Tel. Co., 110 AD2d 922, 65 NY2d 610; Sternemann v Langs, 93 AD2d 819; Zapata v City of New York, 96 AD2d 779; Wormsley v City of New York, 89 AD2d 982; Terwilliger v State of New York, 96 AD2d 688; Riddle v Memorial Hosp., 43 AD2d 750; Deweese v United States, 419 F Supp 170, 576 F2d 802; Dugas v Kansas City S. Ry. Lines, 473 F2d 821, 475 F2d 1404, 414 US 823; Murray v Long Is. R. R. Co., 35 AD2d 579.)
   OPINION OF THE COURT

Chief Judge Wachtler.

This appeal raises fundamental questions about the nature and role of nonpecuniary damages in personal injury litigation. By nonpecuniary damages, we mean those damages awarded to compensate an injured person for the physical and emotional consequences of the injury, such as pain and suffering and the loss of the ability to engage in certain activities. Pecuniary damages, on the other hand, compensate the victim for the economic consequences of the injury, such as medical expenses, lost earnings and the cost of custodial care.

The specific questions raised here deal with the assessment of nonpecuniary damages and are (1) whether some degree of cognitive awareness is a prerequisite to recovery for loss of enjoyment of life and (2) whether a jury should be instructed to consider and award damages for loss of enjoyment of life separately from damages for pain and suffering. We answer the first question in the affirmative and the second question in the negative.

I.

On September 7, 1978, plaintiff Emma McDougald, then 31 years old, underwent a Caesarean section and tubal ligation at New York Infirmary. Defendant Garber performed the surgery; defendants Armengol and Kulkarni provided anesthesia. During the surgery, Mrs. McDougald suffered oxygen deprivation which resulted in severe brain damage and left her in a permanent comatose condition. This action was brought by Mrs. McDougald and her husband, suing derivatively, alleging that the injuries were caused by the defendants’ acts of malpractice.

A jury found all defendants liable and awarded Emma Mc-Dougald a total of $9,650,102 in damages, including $1,000,000 for conscious pain and suffering and a separate award of $3,500,000 for loss of the pleasures and pursuits of life. The balance of the damages awarded to her were for pecuniary damages — lost earnings and the cost of custodial and nursing care. Her husband was awarded $1,500,000 on his derivative claim for the loss of his wife’s services. On defendants’ post-trial motions, the Trial Judge reduced the total award to Emma McDougald to $4,796,728 by striking the entire award for future nursing care ($2,353,374) and by reducing the separate awards for conscious pain and suffering and loss of the pleasures and pursuits of life to a single award of $2,000,000 (McDougald v Garber, 132 Misc 2d 457). Her husband’s award was left intact. On cross appeals, the Appellate Division affirmed (135 AD2d 80) and later granted defendants leave to appeal to this court.

II.

We note at the outset that the defendants’ liability for Emma McDougald’s injuries is unchallenged here, except for a claim by Dr. Garber that liability against her was predicated on a theory not asserted in the complaint or bill of particulars. We agree with the Appellate Division, for the reasons stated by that court (see, 135 AD2d 80, 95-96, supra), that Dr. Garber’s claim does not warrant a new trial on liability.

Also unchallenged are the awards in the amount of $770,978 for loss of earnings and $2,025,750 for future custodial care— that is, the pecuniary damage awards that survived defendants’ posttrial motions.

What remains in dispute, primarily, is the award to Emma McDougald for nonpecuniary damages. At trial, defendants sought to show that Mrs. McDougald’s injuries were so severe that she was incapable of either experiencing pain or appreciating her condition. Plaintiffs, on the other hand, introduced proof that Mrs. McDougald responded to certain stimuli to a sufficient extent to indicate that she was aware of her circumstances. Thus, the extent of Mrs. McDougald’s cognitive abilities, if any, was sharply disputed.

The parties and the trial court agreed that Mrs. McDougald could not recover for pain and suffering unless she were conscious of the pain. Defendants maintained that such consciousness was also required to support an award for loss of enjoyment of life. The court, however, accepted plaintiffs’ view that loss of enjoyment of life was compensable without regard to whether the plaintiff was aware of the loss. Accordingly, because the level of Mrs. McDougald’s cognitive abilities was in dispute, the court instructed the jury to consider loss of enjoyment of life as an element of nonpecuniary damages separate from pain and suffering. The court’s charge to the jury on these points was as follows:

“If you conclude that Emma McDougald is so neurologically impaired that she is totally incapable of experiencing any unpleasant or painful sensation, then, obviously, she cannot be awarded damages for conscious pain * * *.
“It is for you to determine the level of Emma McDougald’s perception and awareness. Suffering relates primarily to the emotional reaction of the injured person to the injury. Thus, for an injured person to experience suffering, there, again, must be some level of awareness. If Emma McDougald is totally unaware of her condition or totally incapable of any emotional reaction, then you cannot award her damages for suffering. If, however, you conclude that there is some level of perception or that she is capable of an emotional response at some level, then damages for pain and suffering should be awarded * * *.
“Damages for the loss of the pleasures and pursuits of life, however, require no awareness of the loss on the part of the injured person. Quite obviously, Emma McDougald is unable to engage in any of the activities which constitute a normal life, the activities she engaged in prior to her injury * * * Loss of the enjoyment of life may, of course, accompany the physical sensation and emotional responses that we refer to as pain and suffering, and in most cases it does. It is possible, however, for an injured person to lose the enjoyment of life without experiencing any conscious pain and suffering. Damages for this item of injury relate not to what Emma McDougald is aware of, but rather to what she has lost. What her life was prior to her injury and what it has been since September 7, 1978 and what it will be for as long as she lives.”

We conclude that the court erred, both in instructing the jury that Mrs. McDougald’s awareness was irrelevant to their consideration of damages for loss of enjoyment of life and in directing the jury to consider that aspect of damages separately from pain and suffering.

III.

We begin with the familiar proposition that an award of damages to a person injured by the negligence of another is to compensate the victim, not to punish the wrongdoer (see, Sharapata v Town of Islip, 56 NY2d 332, 335; Prosser and Keeton, Torts, at 7 [5th ed]). The goal is to restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred (1 Minzer, Nates, Kimball, Axelrod & Goldstein, Damages in Tort Actions §§ 1.00, 1.02). To be sure, placing the burden of compensation on the negligent party also serves as a deterrent, but purely punitive damages — that is, those which have no compensatory purpose — are prohibited unless the harmful conduct is intentional, malicious, outrageous, or otherwise aggravated beyond mere negligence (see, Sharapata v Town of Islip, supra, at 335; Prosser and Keeton, Torts, at 9-10 [5th ed]; 1 Minzer, op. cit., § 1.03).

Damages for nonpecuniary losses are, of course, among those that can be awarded as compensation to the victim. This aspect of damages, however, stands on less certain ground than does an award for pecuniary damages. An economic loss can be compensated in kind by an economic gain; but recovery for noneconomic losses such as pain and suffering and loss of enjoyment of life rests on “the legal fiction that money damages can compensate for a victim’s injury” (Howard v Lecher, 42 NY2d 109, 111). We accept this fiction, knowing that although money will neither ease the pain nor restore the victim’s abilities, this device is as close as the law can come in its effort to right the wrong. We have no hope of evaluating what has been lost, but a monetary award may provide a measure of solace for the condition created (see, Skelton v Collins, 115 CLR 94, 130, 39 ALJR 480, 495 [Austl H C]).

Our willingness to indulge this fiction comes to an end, however, when it ceases to serve the compensatory goals of tort recovery. When that limit is met, further indulgence can only result in assessing damages that are punitive. The question posed by this case, then, is whether an award of damages for loss of enjoyment of life to a person whose injuries preclude any awareness of the loss serves a compensatory purpose. We conclude that it does not.

Simply put, an award of money damages in such circumstances has no meaning or utility to the injured person. An award for the loss of enjoyment of life “cannot provide [such a victim] with any consolation or ease any burden resting on him * * * He cannot spend it upon necessities or pleasures. He cannot experience the pleasure of giving it away” (Flan nery v United States, 718 F2d 108, 111, cert denied 467 US 1226).

We recognize that, as the trial court noted, requiring some cognitive awareness as a prerequisite to recovery for loss of enjoyment of life will result in some cases “in the paradoxical situation that the greater the degree of brain injury inflicted by a negligent defendant, the smaller the award the plaintiff can recover in general damages” (McDougald v Garber, 132 Misc 2d 457, 460, supra). The force of this argument, however —the temptation to achieve a balance between injury and damages — has nothing to do with meaningful compensation for the victim. Instead, the temptation is rooted in a desire to punish the defendant in proportion to the harm inflicted. However relevant such retributive symmetry may be in the criminal law, it has no place in the law of civil damages, at least in the absence of culpability beyond mere negligence.

Accordingly, we conclude that cognitive awareness is a prerequisite to recovery for loss of enjoyment of life. We do not go so far, however, as to require the fact finder to sort out varying degrees of cognition and determine at what level a particular deprivation can be fully appreciated. With respect to pain and suffering, the trial court charged simply that there must be “some level of awareness” in order for plaintiff to recover. We think that this is an appropriate standard for all aspects of nonpecuniary loss. No doubt the standard ignores analytically relevant levels of cognition, but we resist the desire for analytical purity in favor of simplicity. A more complex instruction might give the appearance of greater precision but, given the limits of our understanding of the human mind, it would in reality lead only to greater speculation.

We turn next to the question whether loss of enjoyment of life should be considered a category of damages separate from pain and suffering.

IV.

There is no dispute here that the fact finder may, in assessing nonpecuniary damages, consider the effect of the injuries on the plaintiff’s capacity to lead a normal life. Traditionally, in this State and elsewhere, this aspect of suffering has not been treated as a separate category of damages; instead, the plaintiff’s inability to enjoy life to its fullest has been considered one type of suffering to be factored into a general award for nonpecuniary damages, commonly known as pain and suffering.

Recently, however, there has been an attempt to segregate the suffering associated with physical pain from the mental anguish that stems from the inability to engage in certain activities, and to have juries provide a separate award for each (see generally, Annotation, Damages Element-Loss of Enjoyment of Life, 34 ALR4th 293; Comment, Loss of Enjoyment of Life as a Separate Element of Damages, 12 Pac LJ 965 [1981]; Hermes, Loss of Enjoyment of Life — Duplication of Damages Versus Full Compensation, 63 North Dakota L Rev 561 [1987]).

Some courts have resisted the effort, primarily on the ground that duplicative and therefore excessive awards would result (see, e.g., Huff v Tracy, 57 Cal App 3d 939, 944, 129 Cal Rptr 551, 553; Poyzer v McGraw, 360 NW2d 748, 752-753 [Iowa]). Other courts have allowed separate awards, noting that the types of suffering involved are analytically distinguishable (see, e.g., Rufino v United States, 829 F2d 354 [applying its prediction of New York law]; Thompson v National R. R. Passenger Corp., 621 F2d 814, cert denied 449 US 1035; Mariner v Marsden, 610 P2d 6 [Wyo]; Lebesco v Southeastern Pa. Transp. Auth., 251 Pa Super 415, 380 A2d 848). Still other courts have questioned the propriety of the practice but held that, in the particular case, separate awards did not constitute reversible error (see, e.g., Swiler v Baker’s Super Mkt., 203 Neb 183, 277 NW2d 697; Pierce v New York Cent. R. R. Co., 409 F2d 1392, 1398-1399).

In this State, the only appellate decisions to address the question are the decision of the Appellate Division, First Department, now under review (135 AD2d 80, supra), and the decision of the Second Department in Nussbaum v Gibstein (138 AD2d 193, revd 73 NY2d 912 [decided today]). Those courts were persuaded that the distinctions between the two types of mental anguish justified separate awards and that the potential for duplicative awards could be mitigated by carefully drafted jury instructions. In addition, the courts opined that separate awards would facilitate appellate review concerning the excessiveness of the total damage award.

We do not dispute that distinctions can be found or created between the concepts of pain and suffering and loss of enjoyment of life. If the term “suffering” is limited to the emotional response to the sensation of pain, then the emotional response caused by the limitation of life’s activities may be considered qualitatively different (see, Comment, Loss of Enjoyment of Life as a Separate Element of Damages, 12 Pac LJ 965, 969-973). But suffering need not be so limited — it can easily encompass the frustration and anguish caused by the inability to participate in activities that once brought pleasure. Traditionally, by treating loss of enjoyment of life as a permissible factor in assessing pain and suffering, courts have given the term this broad meaning.

If we are to depart from this traditional approach and approve a separate award for loss of enjoyment of life, it must be on the basis that such an approach will yield a more accurate evaluation of the compensation due to the plaintiff. We have no doubt that, in general, the total award for nonpecuniary damages would increase if we adopted the rule. That separate awards are advocated by plaintiffs and resisted by defendants is sufficient evidence that larger awards are at stake here. But a larger award does not by itself indicate that the goal of compensation has been better served.

The advocates of separate awards contend that because pain and suffering and loss of enjoyment of life can be distinguished, they must be treated separately if the plaintiff is to be compensated fully for each distinct injury suffered. We disagree. Such an analytical approach may have its place when the subject is pecuniary damages, which can be calculated with some precision. But the estimation of nonpecuniary damages is not amenable to such analytical precision and may, in fact, suffer from its application. Translating human suffering into dollars and cents involves no mathematical formula; it rests, as we have said, on a legal fiction. The figure that emerges is unavoidably distorted by the translation. Application of this murky process to the component parts of nonpecuniary injuries (however analytically distinguishable they may be) cannot make it more accurate. If anything, the distortion will be amplified by repetition.

Thus, we are not persuaded that any salutary purpose would be served by having the jury make separate awards for pain and suffering and loss of enjoyment of life. We are confident, furthermore, that the trial advocate’s art is a sufficient guarantee that none of the plaintiff’s losses will be ignored by the jury.

The errors in the instructions given to the jury require a new trial on the issue of nonpecuniary damages to be awarded to plaintiff Emma McDougald. Defendants’ remaining contentions are either without merit, beyond the scope of our review or are rendered academic by our disposition of the case.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be modified, with costs to defendants, by granting a new trial on the issue of nonpecuniary damages of plaintiff Emma McDougald, and as so modified, affirmed.

Titone, J.

(dissenting). The majority’s holding represents a compromise position that neither comports with the fundamental principles of tort compensation nor furnishes a satisfactory, logically consistent framework for compensating non-pecuniary loss. Because I conclude that loss of enjoyment of life is an objective damage item, conceptually distinct from conscious pain and suffering, I can find no fault with the trial court’s instruction authorizing separate awards and permitting an award for “loss of enjoyment of life” even in the absence of any awareness of that loss on the part of the injured plaintiff. Accordingly, I dissent.

It is elementary that the purpose of awarding tort damages is to compensate the wronged party for the actual loss he or she has sustained (1 Minzer, Nates, Kimball, Axelrod & Goldstein, Damages in Tort Actions § 1.00, at 1-3). Personal injury damages are awarded “to restore the injured person to the state of health he had prior to his injuries because that is the only way the law knows how to recompense one for personal injuries suffered” (Romeo v New York City Tr. Auth., 73 Misc 2d 124, 126; see, Thompson v National R. R. Passenger Corp., 621 F2d 814, 824, cert denied 449 US 1035). Thus, this court has held that “[t]he person responsible for the injury must respond for all damages resulting directly from and as a natural consequence of the wrongful act” (Steitz v Gifford, 280 NY 15, 20).

The capacity to enjoy life — by watching one’s children grow, participating in recreational activities, and drinking in the many other pleasures that life has to offer — is unquestionably an attribute of an ordinary healthy individual. The loss of that capacity as a result of another’s negligent act is at least as serious an impairment as the permanent destruction of a physical function, which has always been treated as a compensable item under traditional tort principles (e.g., Simpson v Foundation Co., 201 NY 479 [loss of sexual potency]; see, Robison v Lockridge, 230 App Div 389, 390). Indeed, I can imagine no physical loss that is more central to the quality of a tort victim’s continuing life than the destruction of the capacity to enjoy that life to the fullest.

Unquestionably, recovery of a damage item such as “pain and suffering” requires a showing of some degree of cognitive capacity. Such a requirement exists for the simple reason that pain and suffering are wholly subjective concepts and cannot exist separate and apart from the human consciousness that experiences them. In contrast, the destruction of an individual’s capacity to enjoy life as a result of a crippling injury is an objective fact that does not differ in principle from the permanent loss of an eye or limb. As in the case of a lost limb, an essential characteristic of a healthy human life has been wrongfully taken, and, consequently, the injured party is entitled to a monetary award as a substitute, if, as the majority asserts, the goal of tort compensation is “to restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred” (majority opn, at 254).

Significantly, this equation does not suggest a need to establish the injured’s awareness of the loss. The victim’s ability to comprehend the degree to which his or her life has been impaired is irrelevant, since, unlike “conscious pain and suffering,” the impairment exists independent of the victim’s ability to apprehend it. Indeed, the majority reaches the conclusion that a degree of awareness must be shown only after injecting a new element into the equation. Under the majority’s formulation, the victim must be aware of the loss because, in addition to being compensatory, the award must have “meaning or utility to the injured person.” (Majority opn, at 254.) This additional requirement, however, has no real foundation in law or logic. “Meaning” and “utility” are subjective value judgments that have no place in the law of tort recovery, where the primary goal is to find ways of quantifying, to the extent possible, the worth of various forms of human tragedy.

Moreover, the compensatory nature of a monetary award for loss of enjoyment of life is not altered or rendered punitive by the fact that the unaware injured plaintiff cannot experience the pleasure of having it. The fundamental distinction between punitive and compensatory damages is that the former exceed the amount necessary to replace what the plaintiff lost (see, Hartford Acc. & Indent. Co. v Village of Hempstead, 48 NY2d 218). As the Court of Appeals for the Second Circuit has observed, “[t]he fact that the compensation [for loss of enjoyment of life] may inure as a practical matter to third parties in a given case does not transform the nature of the damages” (Rufino v United States, 829 F2d 354, 362).

Ironically, the majority’s expressed goal of limiting recovery for nonpecuniary loss to compensation that the injured plaintiff has the capacity to appreciate is directly undercut by the majority’s ultimate holding, adopted in the interest of “simplicity,” that recovery for loss of enjoyment of life may be had as long as the injured plaintiff has “ ‘some level of awareness’ ”, however slight (majority opn, at 255). Manifestly, there are many different forms and levels of awareness, particularly in cases involving brain injury. Further, the type and degree of cognitive functioning necessary to experience “pain and suffering” is certainly of a lower order than that needed to apprehend the loss of the ability to enjoy life in all of its subtleties. Accordingly, the existence of “some level of awareness” on the part of the injured plaintiff says nothing about that plaintiff’s ability to derive some comfort from the award or even to appreciate its significance. Hence, that standard does not assure that loss of enjoyment of life damages will be awarded only when they serve “a compensatory purpose,” as that term is defined by the majority.

In the final analysis, the rule that the majority has chosen is an arbitrary one, in that it denies or allows recovery on the basis of a criterion that is not truly related to its stated goal. In my view, it is fundamentally unsound, as well as grossly unfair, to deny recovery to those who are completely without cognitive capacity while permitting it for those with a mere spark of awareness, regardless of the latter’s ability to appreciate either the loss sustained or the benefits of the monetary award offered in compensation. In both instances, the injured plaintiff is in essentially the same position, and an award that is punitive as to one is equally punitive as to the other. Of course, since I do not subscribe to the majority’s conclusion that an award to an unaware plaintiff is punitive, I would have no difficulty permitting recovery to both classes of plaintiffs.

Having concluded that the injured plaintiff’s awareness should not be a necessary precondition to recovery for loss of enjoyment of life, I also have no difficulty going on to conclude that loss of enjoyment of life is a distinct damage item which is recoverable separate and apart from the award for conscious pain and suffering. The majority has rejected separate recovery, in part because it apparently perceives some overlap between the two damage categories and in part because it believes that the goal of enhancing the precision of jury awards for nonpecuniary loss would not be advanced. However, the overlap the majority perceives exists only if one assumes, as the majority evidently has (see, majority opn, at 256-257), that the “loss of enjoyment” category of damages is designed to compensate only for “the emotional response caused by the limitation of life’s activities” and “the frustration and anguish caused by the inability to participate in activities that once brought pleasure” (emphasis added), both of which are highly subjective concepts.

In fact, while “pain and suffering compensates the victim for the physical and mental discomfort caused by the injury; * * * loss of enjoyment of life compensates the victim for the limitations on the person’s life created by the injury”, a distinctly objective loss (Thompson v National R. R. Passenger Corp., supra, at 824). In other words, while the victim’s “emotional response” and “frustration and anguish” are elements of the award for pain and suffering, the “limitation of life’s activities” and the “inability to participate in activities” that the majority identifies are recoverable under the “loss of enjoyment of life” rubric. Thus, there is no real overlap, and no real basis for concern about potentially duplicative awards where, as here, there is a properly instructed jury.

Finally, given the clear distinction between the two categories of nonpecuniary damages, I cannot help but assume that permitting separate awards for conscious pain and suffering and loss of enjoyment of life would contribute to accuracy and precision in thought in the jury’s deliberations on the issue of damages. Indeed, the view that itemized awards enhance accuracy by facilitating appellate review has already been expressed by the Legislature in enacting CPLR 4111 (d) and (f) (see, 4 Weinstein-Korn-Miller, NY Civ Prac f 4111.13, at 41-205). In light of the concrete benefit to be gained by compelling the jury to differentiate between the specific objective and subjective elements of the plaintiff’s nonpecuniary loss, I find unpersuasive the majority’s reliance on vague concerns about potential distortion owing to the inherently difficult task of computing the value of intangible loss. My belief in the jury system, and in the collective wisdom of the deliberating jury, leads me to conclude that we may safely leave that task in the jurors’ hands.

For all of these reasons, I approve of the approach that the trial court adopted in its charge to the jury. Accordingly, I would affirm the order below affirming the judgment.

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

Order, insofar as appealed from, modified, with costs to defendants, by granting a new trial on the issue of nonpecuniary damages of plaintiff Emma McDougald and, as so modified, affirmed.

       We note especially the argument raised by several defendants that plaintiffs’ attorney was precluded by CPLR 3017 (c) from mentioning, in his summation, specific dollar amounts that could be awarded for nonpecuniary damages. We do not resolve this issue, which has divided the lower courts (compare, Bagailuk v Weiss, 110 AD2d 284; and Bechard v Eisinger, 105 AD2d 939, with Braun v Ahmed, 127 AD2d 418), inasmuch as the matter was neither presented to nor addressed by the Appellate Division.

       Another problem with the majority’s analysis is the absence of any discussion about the time frame to be used in measuring the award of damages for plaintiff’s loss of enjoyment of life. Damages for “pain and suffering” are directly correlated to the plaintiff’s experience of “pain and suffering” and thus are routinely awarded only for that period of time during which the injured had sufficient cognitive powers to have that experience. Damages for loss of enjoyment of life, in contrast, are awarded as a monetary replacement for the plaintiff’s diminished ability to participate in the pleasures and pursuits of healthy living during the remainder of his or her natural life span. Thus, a legitimate question exists as to whether the plaintiff is entitled to recover an award representing his entire lifetime’s loss notwithstanding that he was conscious of the loss for only a few moments before lapsing into cognitive oblivion. Furthermore, in view of the majority’s conclusion that an award is not truly compensatory if it cannot be enjoyed by the injured party, an additional question arises as to whether the cognitive capacity of the plaintiff must be measured at the time when the award is to be given rather than at some earlier point before the commencement of trial.