text:
    Debevoise & Plimpton, Respondent, v New York State Department of Taxation and Finance et al., Appellants.
    Argued January 7,1993;
    decided February 11, 1993

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General, New York City (Laura M. Nath, Jerry Boone and Frederic L. Lieberman of counsel), for appellants.
    I. Tax Law § 1105 (b) imposes a tax on the sale of air conditioning and heating. (Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151; Matter of American Tel. & Tel. Co. v State Tax Comma., 61 NY2d 393; Jaffe Plumbing & Heating Co. v Brooklyn Union Gas Co., 51 Misc 2d 1083, 29 AD2d 1051, 26 NY2d 851; City of New York v New York City Ry. Co., 193 NY 543; New York State Cable Tel. Assn, v State Tax Comma., 59 AD2d 81; Matter of Dental Socy. v New York State Tax Comma., 148 AD2d 791; Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104; Matter of American Locker Co. v Gallman, 32 NY2d 175; Matter of International Salt Co. v New York State Tax Comma., 79 AD2d 343; Matter of Koner v Procaccino, 45 AD2d 551, 39 NY2d 258.) II. This action is not appropriate for declaratory judgment and should be dismissed for failure to exhaust administrative remedies. (Allstate Ins. Co. v Tax Comma., 115 AD2d 831, 67 NY2d 999; Seventy-Nine Delancey Corp. v Meridan Holding Corp., 286 NY 354; Dun & Bradstreet v City of New York, 276 NY 198; Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510; Matter of Morgenthau v Erlbaum, 59 NY2d 150; Reed v Littleton, 275 NY 150; Matter of Great Lakes Dredge & Dock Co. v Department of Taxation & Fin., 39 NY2d 75, 429 US 832; Watergate II Apts, v Buffalo Sewer Auth., 46 NY2d 52; Gordon v Gerosa, 16 Misc 2d 710.) III. The application of Tax Law § 1105 (b) to overtime heating and air conditioning is appropriate and does not result in double taxation. (State Tax Comma, v Aldrich, 316 US 174; Matter of Dickstein v State Tax Comma., 67 AD2d 1033; Matter of Croshier v Levitt, 5 NY2d 259; Matter of Time, Inc. v Michael, 91 AD2d 1207; Matter of Broadway Mobile Home Sales Corp. v State Tax Comma., 67 AD2d 1029; Illinois Cent. R. R. Co. v Minnesota, 309 US 157; People ex rel. New York Cent. & Hudson R. R. Co. v Roberts, 32 App Div 113, 157 NY 677; People v Home Ins.
      Co., 92 NY 328; Matter of Finkelstein, 40 Misc 2d 910; Lincoln Serv. v City of New York, 27 Misc 2d 144.)

      Debevoise & Plimpton, New York City (Andrew C. Hartzell, John S. Kiernan and Robert D. Goodman of counsel), respondent pro se.

    I. Section 1105 (b) of the Tax Law does not embrace heating, ventilation and air conditioning. (Matter of Bloomingdale Bros, v Chu, 70 NY2d 218; American Locker Co. v City of New York, 308 NY 264; Matter of Good Humor Corp. v McGoldrick, 289 NY 452; People ex rel. Mutual Trust Co. v Miller, 177 NY 51; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of De Mayo v Rensselaer Polytech Inst., 74 NY2d 459; Matter of Yong-Myun Rho v Arnbach, 74 NY2d 318; Matter of Action Elec. Contrs. Co. v Goldin, 64 NY2d 213; Matter of Darien Lake Fun Country v State Tax Commn., 68 NY2d 630; Matter of Trump-Equit. Fifth Ave. Co. v Gliedman, 57 NY2d 588.) II. The supply of overtime HVAC as an incident of the over-all lease of the premises is not a taxable sale of services. (Matter of Merchants Refrig. Co. v Taylor, 275 NY 113; Matter of Holmes Elec. Protective Co. v McGoldrick, 262 App Div 514, 288 NY 635; New York State Cable Tel. Assn, v State Tax Commn., 59 AD2d 81.) III. Application of both sales tax and commercial rent tax on overtime HVAC constitutes impermissible double taxation. (Matter of Atlas Tel. Co., 273 NY 51; John Hancock Mut. Life Ins. Co. v Pink, 276 NY 421; Matter of Kesbeck, Inc. v McGoldrick, 278 NY 293; New York Steam Corp. v City of New York, 268 NY 137; Matter of Bankers Trust N. Y. Corp. v Department of Fin., 79 NY2d 457; Matter of Cooley, 186 NY 220; Socony-Vacuum Oil Co. v City of New York, 247 App Div 163, 272 NY 668; Matter of Suffolk County Fed. Sav. & Loan Assn, v Bragalini, 5 NY2d 579; Matter of First Fiscal Fund Corp. v State Tax Commn., 49 AD2d 408, 40 NY2d 940; Tennessee v Whitworth, 117 US 129.) IV. Declaratory judgment was proper in this case. (Matter of Voorhees v Bates, 308 NY 184; Matter of Good Humor Corp. v McGoldrick, 289 NY 452; Slater v Gallman, 38 NY2d 1; Watergate II Apts, v Buffalo Sewer Auth., 46 NY2d 52; Matter of First Natl. City Bank v City of New York Fin. Admin., 36 NY2d 87; Richfield Oil Corp. v City of Syracuse, 287 NY 234; Booth v City of New York, 268 App Div 502, 296 NY 573; Matter of Amsterdam Nursing Home Corp. v Axelrod, 135 AD2d 331; Matter of MacLeish v Passidomo, 123 Misc 2d 644; Matter of Veit v Barbaro, 59 Misc 2d 117.)

      O. Peter Sherwood, Corporation Counsel of New York City
      (Edward, F. X. Hart and Frances J. Henn of counsel), for New York City Department of Finance, amicus curiae.

    Imposition of the sales tax and commercial rent tax on charges for overtime heating, ventilation, and air conditioning does not constitute double taxation. (Matter of Mobil Oil Corp. v Finance Adm’r of City of N. Y, 86 AD2d 504, 58 NY2d 95; Matter of Time, Inc. v Michael, 91 AD2d 1207; Matter of Avon Prods, v Department of Fin., 92 AD2d 1089, 60 NY2d 585; Matter of Atlas Tel. Co., 273 NY 51; People ex rel. New York Cent. R. R. Co. v Limburg, 283 NY 344; New York Steam Corp. v City of New York, 268 NY 137; Matter of Dickstein v State Tax Commn., 67 AD2d 1033; Matter of Croshier v Levitt, 5 NY2d 259.)
   OPINION OF THE COURT

Hancock, Jr., J.

The issue in this case is whether the Department of Taxation and Finance (the Department) may tax the provision of overtime heat, ventilation and air conditioning (HVAC) services as a sale of "refrigeration and steam service” under Tax Law § 1105 (b). We conclude that section 1105 (b) authorizes a tax on a utility service only when furnished in an identifiable sale transaction as a commodity or article of commerce. The statute, therefore, does not authorize a tax on HVAC services provided by landlords incidental to the rental of office space. Accordingly, the order of the Appellate Division should be affirmed.

Plaintiff, a partnership engaged in the practice of law, rented office space in Manhattan pursuant to a lease agreement calling for plaintiff to pay a fixed rent for the premises, which included the supply of HVAC services from 8:00 a.m. to 6:00 p.m. on regular business days. The lease further required plaintiff to pay "additional rent” for HVAC services during nonbusiness hours and days. The tax in dispute for the amount of additional rent for overtime HVAC services was imposed by the Department on the landlord and paid by plaintiff with the additional rent.

Plaintiff commenced this declaratory judgment action challenging the Department’s authority to tax the supply of overtime HVAC services as a sale of "refrigeration and steam service” under section 1105 (b). The IAS Court granted plaintiff’s motion , for summary judgment and the Appellate Division affirmed. Our decision depends entirely on the construction to be given section 1105 (b) which provides:

"[TJhere is hereby imposed and there shall be paid a tax of four percent upon * * *
"(b) The receipts from every sale, other than sales for resale, of gas, electricity, refrigeration and steam, and gas, electric, refrigeration and steam service of whatever nature”.

In construing section 1105 (b), as with any statute, we apply the basic rule that words "of ordinary import in a statute are to be given their usual and commonly understood meaning, unless it is clear from the statutory language that a different meaning was intended” (We’re Assocs. Co. v Cohen, Stracher & Bloom, 65 NY2d 148, 151; see, Price v Price, 69 NY2d 8, 15; McKinney’s Cons Laws of NY, Book 1, Statutes § 94). When the particular statute is one which levies a tax, it is well established that it must be narrowly construed and that any doubts concerning its scope and application are to be resolved in favor of the taxpayer (see, Matter of Bloomingdale Bros, v Chu, 70 NY2d 218, 223; Matter of American Cyanamid & Chem. Corp. v Joseph, 308 NY 259, 263; Matter of Good Humor Corp. v McGoldrick, 289 NY 452, 455). Thus, a taxing agency may not extend the meaning of legislation so as to permit the imposition of a tax in situations not embraced within the statute (see, Matter of Bloomingdale Bros, v Chu, supra, at 223).

Applying these rules, it seems evident that if the words of section 1105 (b) are given their natural and most obvious meaning, the statute authorizes a tax only on the receipts from those transactions which can be identified as independent sales of utilities or utility services. Thus, by its plain import, the statute applies only to separate transactions which have as their primary purpose the furnishing of utilities or utility services. The Department would broaden the reach of section 1105 (b) and read into it by implication the authority to impose a tax not only on sales of utilities and utility services but also on rent paid when HVAC services are supplied by the landlord to the tenant purely as an incident to a lease of premises. The Department’s broad construction, however, contravenes the accepted tenet that a tax statute must be strictly construed with any doubts being resolved in favor of the taxpayer (see, Matter of Bloomingdale Bros, v Chu, supra; Matter of American Cyanamid & Chem. Corp. v Joseph, supra; Matter of Good Humor Corp. v McGoldrick, supra).

Our construction of section 1105 (b) as not applying to additional rental for HVAC services when supplied incidentally as part of the rental of premises is consistent with this Court’s interpretation of tax statutes in analogous circumstances. In Matter of Merchants Refrig. Co. v Taylor (275 NY 113), we held that the provision of refrigeration service as an incident of the rental of cold storage in a warehouse was not taxable as a sale of refrigeration service under the New York City sales tax. The Court noted that the purpose of the transaction was the rental of storage space, not the "sale of refrigeration or a sale of refrigeration service” (id., at 119). In rejecting the City’s argument that the supply of refrigeration was a taxable sale, the Court concluded that "[t]he temperature may attract customers and increase the charge but safe storage is the service sought and paid for” (id., at 119; see, Matter of Holmes Elec. Protective Co. v McGoldrick, 262 App Div 514, 517, affd 288 NY 635 [burglar alarm service involving the transmission of signals over telephone lines not taxable as "telephonic or telegraphic” service since the purpose of the service is the "protection of the customers’ premises” and not "the sale of electric, telephone or telegraph service”]; see also, Matter of Time, Inc. v Michael, 91 AD2d 965, confirming City Audit No. UB 10437 [overtime HVAC charges are subject to the City’s commercial rent or occupancy tax and not the section 1105 (b) sales tax since section 1105 (b) imposes a tax on utilities when sold as commodities or articles of commerce —not when provided as part of the rental]).

Here, the HVAC services in question are furnished under a lease agreement for the rental of office space. In section 12.01 of the lease, the landlord agrees to furnish to the premises "sufficient chilled or hot water as may be necessary to maintain a reasonably comfortable occupancy of the Premises” during business hours on business days. Section 12.02 simply provides that if the tenant requires HVAC services at times other than business hours on business days, then "as long as this Lease is in full force and effect, Landlord shall furnish the same upon advance notice from Tenant, given prior to 2:30 P.M. on any business day, and Tenant shall pay Landlord’s then established charges therefor as Additional Rent on demand.” There is no question that the HVAC is furnished solely as an incident of the leasehold and for the purpose of assuring that the leased premises are maintained at a reasonably comfortable temperature for use by the tenant. Section 12.02 can in no way be construed as a sales clause and nothing in the lease agreement suggests that the overtime HVAC services are to be sold separately or to be furnished in any transaction independent of the lease. For these reasons we agree with the IAS Court that the furnishing of HVAC services cannot be taxed as a sale.

The Department’s position that all of the overtime services are subject to tax leads to the taxation of services that are clearly outside of its scope. The Department’s only statutory basis for taxing the overtime supply of HVAC under section 1105 (b) is that such supply constitutes a sale of "refrigeration and steam service”. But, steam and refrigeration costs constitute only a minor component of the landlord’s charges for heating and air conditioning which include purchase of electricity, labor, maintenance, depreciation and overhead and furnishing of ventilation and air circulation. Indeed, on many occasions, the landlord’s charges for HVAC on which the Department bases its tax, are for providing only ventilation and air circulation which have no connection with steam or refrigeration and could not be taxable under section 1105 (b).

Moreover, the Department’s decision to tax the landlord’s supply of overtime HVAC as the sale of "refrigeration and steam service” to the tenant is inconsistent with the Department’s position in imposing a sales tax under section 1105 (b) on the landlord’s acquisition of its supply of steam from Consolidated Edison. The provision of steam by Consolidated Edison to the landlord can only be taxed under section 1105 (b) if it is a "sale, other than * * * for resale”. Presumably, in taxing the Consolidated Edison-landlord transaction, the Department’s position is that it is not a sale for resale. This position is obviously at odds with its contention here that the landlord’s furnishing of "refrigeration and steam service” to plaintiff is a sale under section 1105 (b).

The Department’s imposition of the tax on overtime HVAC services is also inconsistent with its decision not to tax these same services when supplied during business hours on business days as part of the rental of the premises. Daytime and overtime HVAC are indistinguishable; they involve the same services; both are provided as an incident of the lease agreement. That a separate additional rent is charged for it does not alter the fact that the overtime HVAC is furnished as a part of the rental of the premises and provides no rational basis for treating it differently from business hour HVAC under section 1105 (b).

The Department argues, however, that because it has adopted a regulation authorizing the taxation of the furnishing of air conditioning as a sale of refrigeration service under section 1105 (b) (see, 20 NYCRR 527.2 [c]) that its interpretation must be upheld so long as it has a rational basis (see, Matter of John P. v Whalen, 54 NY2d 89, 95). We have held, however, that interpretations of the agency charged with administering a statute are not entitled to such deference when, as here, the issue is one of pure statutory construction (see, Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451).

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

Acting Chief Judge Simons and Judges Titone, Hancock, Jr., Bellacosa and Weiss concur; Judges Kaye and Smith taking no part.

Order affirmed, with costs.

      . Because we conclude that a tax on HVAC services is not authorized under section 1105 (b) of the Tax Law, we need not decide whether imposition of such a tax in addition to the City’s imposition of a commercial rent tax results in double taxation.

      . Designated pursuant to NY Constitution, article VI, § 2.


source: Caselaw Access Project

author: Kaye, J. Smith, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v Andre Acosta, Respondent.
    Argued January 5,1993;
    decided February 16, 1993

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (Eleanor J. Ostrow and James M. McGuire of counsel), for appellant.
    Defendant’s rejection of the particular cocaine delivered to him because he believed its peculiar packaging jeopardized his plan to resell it did not render insufficient the trial evidence supporting his conviction of attempted possession of a controlled substance in the first degree. People v Mahboubian, 74 NY2d 174; People v Sullivan, 173 NY 122; People v Moran, 123 NY 254; People v Rizzo, 246 NY 334; People v Malizia, 62 NY2d 755, 469 US 932; People v Bleakley, 69 NY2d 490; People v Dekle, 56 NY2d 835; People v Sobieskoda, 235 NY 411; People v Warren, 66 NY2d 831; People v Duprey, 98 AD2d 110.)

      Mahler & Harris, P. C., Kew Gardens (Stephen R. Mahler of counsel), for respondent.
    I. Measured by Court of Appeals case law criteria, the People’s proof at trial did not justify defendant’s conviction for attempted criminal possession of a controlled substance in the first degree. People v Howard, 74 NY2d 943; People v Lawrence, 74 NY2d 732; People v Butler, 58 NY2d 1056; People v Cona, 49 NY2d 26; People v Mahboubian, 74 NY2d 174; People v Warren, 66 NY2d 831.) II. The court’s prolonged closure of the courtroom violated defendant’s Sixth Amendment right to a public trial and mandates reversal of his judgment of conviction. People v Clemons, 78 NY2d 48; People v Kan, 78 NY2d 54; Waller v Georgia, 467 US 39; People v Hinton, 31 NY2d 71.) III. Given the People’s opening statement and the trial testimony, the failure of the court to properly charge the multiple conspiracy concept espoused in People v Leisner (73 NY2d 140, 148-152) requires a trial de nova on the conspiracy count of the indictment. IV. Three erroneous evidentiary rulings seriously prejudiced defendant and deprived him of a fair trial. People v Roman, 149 AD2d 305; People v Bolden, 82 AD2d 757.) V. A new trial should be ordered due to the improper admission of critical identification testimony that should have been suppressed due to lack of CPL 710.30 notice and the refusal of the court to follow a suggested procedure which might have insured its reliability. People v Rodriguez, 79 NY2d 445; People v New-ball, 76 NY2d 587; United States v Archibald, 734 F2d 938; People v Evans, 147 Misc 2d 811.)
   OPINION OF THE COURT

Kaye, J.

A person who, with intent to possess cocaine, orders from a supplier, admits a courier into his or her home, examines the drugs and ultimately rejects them because of perceived defects in quality, has attempted to possess cocaine within the meaning of the Penal Law. As the evidence was legally sufficient to establish this sequence of events, we reinstate defendant’s conviction of attempted criminal possession of a controlled substance in the first degree.

I.

By jury verdict, defendant was convicted of conspiracy and attempted possession of cocaine. The latter charge — the only one at issue on this appeal — centers on the events of March 21, 1988.

Evidence at trial revealed that, commencing in November 1986, officers of the Manhattan North Narcotics Division began investigating the activities of defendant, his brother Miguel and others. Their investigation techniques included the use of an undercover officer to infiltrate the organization, stakeouts and court-authorized wiretaps. In July 1987 the undercover met with Miguel at a Manhattan apartment and purchased cocaine. At that time, Miguel introduced defendant to the officer, telling her that they "work together.”

A wiretap on defendant’s telephone at his Bronx apartment revealed that for several days prior to March 21, 1988, he was negotiating with Luis Rojas to purchase kilogram quantities of cocaine. On March 21, at 11:37 a.m., Rojas called defendant and asked, "are you ready?” Defendant replied "come by here” and Rojas responded, "I’m going over.” At 11:42, defendant called "Frank,” an associate, and told him that he "spoke to the man” who would be "coming over here * * *. Right now.”

About a half hour later, around 12:15 p.m., officers staking out defendant’s six-floor apartment building saw a man pull up in a car, remove a black and white plastic bag from the trunk, and enter the building. The bag’s handles were stretched, indicating that the contents were heavy. At 12:30, the man emerged from the building, carrying the same plastic bag which still appeared to be heavy. He placed the bag back in the trunk and drove off.

Minutes later, at 12:37 p.m., defendant called Frank, stating that he "saw the man” but "those tickets * * * were no good; they weren’t good for the game man.” Frank wondered whether "they got more expensive, the seats” and defendant explained that they were the "same price and all” but they were "not the same seats * * * some seats real bad, very bad, very bad.” Defendant elaborated: "two pass tickets together on the outside stuck together, like a thing, like a ticket falsified. Then I told him to take it away, no, I don’t want any problems and anything you see.” Frank asked if defendant was told when the tickets would arrive, and defendant responded "No because who came was someone, somebody else, the guy, the messenger.” Defendant acknowledged that he "want[s] to participate in the game but if you can’t see it, you’re going to come out upset.”

At 12:50 p.m., Rojas called defendant and said something inaudible about "my friend.” Defendant responded, "Oh yes, but he left because (inaudible) it doesn’t fit me. * * * You told me it was the same thing, same ticket.” Rojas rejoined, "No. We’ll see each other at six.”

Finally, at 1:26 p.m., defendant telephoned Hector Vargas, who wanted to know "what happened?” Defendant said, "Nothing. I saw something there, what you wanted, but I returned it because it was a shit there.” Hector wanted to know, "like how?” but defendant simply responded, "No, no, a weird shit there.” Vargas suggested that he might be able to obtain something "white and good.”

The following day, defendant again called Vargas to discuss "the thing you told me about, you know what I’m referring to”. Defendant recommended that Vargas "go talk to him, talk to him personally and check it out.” Defendant thought that "it would be better if you took the tickets, at least one or whatever.”

At trial, in motions before and after the verdict, defendant argued that the foregoing evidence was insufficient to establish that he attempted to possess cocaine on March 21. The trial court rejected those arguments and sentenced defendant, upon the jury’s guilty verdict, to a prison term of 25 years to life, the maximum permitted by law.

On appeal, a sharply divided Appellate Division reversed and vacated the attempted possession conviction, the majority concluding that "[e]yen were we to accept [the] attenuated inference that the visitor actually reached defendant’s apartment and offered his contraband to him, the remaining evidence shows defendant’s flat rejection of that offer, and thus total abandonment of the criminal enterprise with respect to this particular quantity of cocaine.” (172 AD2d 103, 105-106.) One of the dissenting Justices granted the People leave to appeal, and we now reverse.

II.

A person knowingly and unlawfully possessing a substance weighing at least four ounces and containing a narcotic drug is guilty of criminal possession of a controlled substance in the first degree (Penal Law § 220.21 [1]). Under the Penal Law, "[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he [or she] engages in conduct which tends to effect the commission of such crime.” (Penal Law § 110.00.) While the statutory formulation of attempt would seem to cover a broad range of conduct — anything "tend[ing] to effect” a crime — case law requires a closer nexus between defendant’s acts and the completed crime.

In People v Rizzo (246 NY 334, 337), we observed that in demarcating punishable attempts from mere preparation to commit a crime, a "line has been drawn between those acts which are remote and those which are proximate and near to the consummation.” In Rizzo, this Court drew that line at acts "very near to the accomplishment of the intended crime.” (Id., at 337.) Though apparently more stringent than the Model Penal Code "substantial step” test (Model Penal Code § 5.01 [1] [c]) — a test adopted by some Federal courts (see, e.g., United States v Jackson, 560 F2d 112 [2d Cir], cert denied 434 US 941) —in this State we have adhered to Rizzo’s "very near” or "dangerously near” requirement, despite the later enactment of Penal Law § 110.00 (see, People v Mahboubian, 74 NY2d 174, 191; People v Warren, 66 NY2d 831, 833; People v Di Stefano, 38 NY2d 640, 652).

A person who orders illegal narcotics from a supplier, admits a courier into his or her home and examines the quality of the goods has unquestionably passed beyond mere preparation and come "very near” to possessing those drugs. Indeed, the only remaining step between the attempt and the completed crime is the person’s acceptance of the proffered merchandise, an act entirely within his or her control (see, People v Mahboubian, 74 NY2d, at 192, supra).

Our decision in People v Warren (66 NY2d 831) is thus readily distinguishable, as Justice Asch, dissenting at the Appellate Division, recognized. In that case, an informant and an undercover officer posing as a cocaine seller met defendants in a hotel room and reached an agreement for the sale of about half a pound. The actual exchange, however, was to occur hours later, in another part of town, after repackaging and testing. Moreover, when defendants were arrested at that meeting, the sellers had insufficient cocaine on hand and defendants had insufficient funds. We concluded that since "several contingencies stood between the agreement in the hotel room and the contemplated purchase,” defendants did not come "very near” to accomplishment of the intended crime (66 NY2d, at 833). The same cannot be said here.

Significantly, neither the Appellate Division nor the dissent in this Court disputes the proposition that a person who arranges for the delivery of drugs and actually examines them has come sufficiently close to the completed crime to qualify as an attempt. Rather, the Appellate Division relies on two other grounds for reversal: (i) the evidence was insufficient to establish that defendant in fact met with a drug courier and examined his wares; and (ii) in any event, defendant’s ultimate rejection of the drugs constituted an abandonment of the criminal enterprise, vitiating the attempt. (The dissent in this Court is limited to the first ground.) Neither ground is persuasive.

Sufficiency of the Evidence

A jury, of course, concluded from the evidence presented that defendant attempted to possess cocaine on March 21, 1988. In examining the record for legal sufficiency, "the evidence must be viewed in a light most favorable to the People * * * to determine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (People v Steinberg, 79 NY2d 673, 681-682). This deferential standard is employed because the courts’ role on legal sufficiency review is simply to determine whether enough evidence has been presented so that the resulting verdict was lawful.

The Appellate Division is also empowered to review the record to determine whether the verdict is against the weight of the evidence (CPL 470.15 [5]; People v Bleakley, 69 NY2d 490, 495). In so doing, the Appellate Division may draw inferences contrary to those implicitly drawn by the jury, and conclude that while legally valid, the verdict should nevertheless be set aside as contrary to the weight of the evidence (see, CPL 470.20 [5]; People v Bleakley, 69 NY2d, at 495, supra). In this case, the Appellate Division did not use its weight-of-the-evidence review powers, but vacated defendant’s conviction for legal insufficiency (172 AD2d, at 106, supra). Accordingly, this Court may review the Appellate Division’s determination (see, CPL 470.15 [4] [b]; 450.90 [2] [a]; see also, People v Acosta, 79 NY2d 971 [denying defendant’s motion to dismiss appeal]). When we reverse in this procedural posture, however, the case is remitted to enable the Appellate Division to weigh the evidence (CPL 470.40 [2] [b]).

Applying these governing standards, we conclude that the evidence was legally sufficient to support the jury’s finding that defendant met with a drug courier in his home on March 21. About a half-hour after defendant’s supplier, Rojas, told defendant that he would be coming over, the police saw a man enter the apartment building with a weighted-down plastic bag and emerge 15 minutes later with the same heavy bag. Contemporaneously with the unidentified man’s departure, defendant reported to an associate that he met with a messenger but that he rejected the offer because the "seats” were "very bad” and the "tickets” looked "falsified.” When Rojas immediately called defendant asking about his "friend,” defendant explained that "he left” and complained that Rojas misrepresented that the "same ticket” would be brought. And shortly thereafter, defendant called Vargas and told him that he "saw something there, what you wanted, but I returned it because it was a shit there.”

On the evidence presented, a rational jury could have found beyond a reasonable doubt that defendant, with the intent to possess more than four ounces of a controlled substance, met with Rojas’ courier and examined cocaine, but rejected it because he was dissatisfied with the quality.

The dissent’s contrary conclusion is reachable only by arbitrarily fragmenting the evidence. The dissent contends that the stakeout officers’ observations of the man carrying the bag amount to "no material evidence at all” because the man was not stopped by the police or seen approaching defendant’s apartment (dissenting opn, at 677). Then, having erased this evidence from the case, the dissent claims that the "sole basis” for defendant’s guilt was a wiretapped conversation in which he told an individual that he had just rejected tickets (dissenting opn, at 677).

The law, however, did not oblige the jury to take such an artificial view of the evidence. Rather, the jury function was to evaluate the trial evidence as a whole, to consider how the individualized bits of evidence fit together, including inferences from the evidence that rational individuals were entitled to draw. As background, the jury knew from defendant’s many earlier conversations about "tickets” and his meeting with the undercover that he was involved with drugs. Further, the jury knew that in the days immediately preceding March 21 defendant was negotiating with Rojas to buy kilos of cocaine and that on March 21 Rojas said that he was coming over. The unidentified man’s visit to the apartment building with the parcel — coinciding to the minute with defendant’s conversations — was fully consistent with defendant’s several later admissions that he had met with a courier but rejected his merchandise. While the dissent would ignore the totality of this evidence, the jury most assuredly was not required to do so.

Rejection as Abandonment

We similarly disagree with the Appellate Division’s suggestion that defendant’s "flat rejection” of the drugs vitiated the attempt. Penal Law § 40.10 (3) provides an affirmative defense to an attempt charge "under circumstances manifesting a voluntary and complete renunciation of [the] criminal purpose”. To qualify for this defense, "the abandonment must be permanent, not temporary or contingent, not simply a decision to postpone the criminal conduct until another time” (People v Taylor, 80 NY2d 1, 13-14).

An abandonment theory is inapposite here. First, abandonment is an affirmative defense (Penal Law § 40.10 [3]; People v Taylor, 80 NY2d, at 15, supra), meaning that defendant has the burden of establishing it by a preponderance of the evidence (Penal Law § 25.00 [2]; People v Butts, 72 NY2d 746, 749, n 1). At trial, however, defendant never sought to present a renunciation defense. Second, and even more fundamentally, the evidence revealed that even after rejecting the March 21 offer, defendant continued making efforts to obtain cocaine. Thus, while it may be true that there was an abandonment "with respect to [that] particular quantity of cocaine” (172 AD2d, at 106, supra), this is immaterial for purposes of the statutory renunciation defense. Rather, there must be an abandonment of over-all criminal enterprise (see, People v Taylor, 80 NY2d, at 14, supra), which on this record plainly was not the case.

III.

On this appeal, defendant raises several other arguments which were summarily rejected by the Appellate Division. Inasmuch as the relief he seeks — a new trial — goes beyond mere affirmance of the Appellate Division order and thus constitutes a request for affirmative relief, defendant was required to obtain leave to appeal (see, People v Carpenito, 80 NY2d 65, 68). Defendant in fact sought leave to appeal from a Judge of this Court, but his application was denied (79 NY2d 971). Thus, we are precluded from reviewing defendant’s alternative contentions seeking a new trial.

We note, however, that although the Appellate Division rejected defendant’s "other” claims, by reversing the attempted possession conviction and vacating the resultant sentence that court necessarily did not pass on defendant’s argument that his sentence was harsh and excessive. Therefore, on remittal, should the Appellate Division uphold the attempted possession conviction upon exercise of its factual review power, that court should consider defendant’s excessive sentence claim.

Accordingly, the order of the Appellate Division should be reversed, the conviction for attempted criminal possession of a controlled substance in the first degree reinstated, and the case remitted to that court for consideration of the facts (CPL 470.25 [2] [d]; 470.40 [2] [b]).

Smith, J.

(dissenting). To uphold defendant’s conviction of an attempt, it must be shown beyond a reasonable doubt that his acts came "dangerously close” to committing the substantive crime. That someone got out of a car carrying a bag and entered the apartment building adds nothing to the proof of the attempted crime. There was no proof of who this man was, what was in the bag, where the man went inside the building or who owned the car. Any connection of this proof with defendant would necessarily be based on pure speculation. The critical question, then, is whether defendant’s wiretapped phone calls, standing alone, or even in conjunction with the evidence of a man and his bag, could constitute sufficient evidence for a finding of guilt. Without more, these phone conversations, and other evidence submitted, were insufficient to show that defendant came "dangerously close” to possessing drugs. I, therefore, dissent.

The police obtained a court order authorizing a wiretap of defendant’s telephone. The wiretap, in place in 1987 and 1988, revealed that defendant was anticipating a delivery of cocaine on March 21, 1988. Defendant was arrested on June 22, 1988 and charged with conspiracy in the second degree based on his intent to commit the crimes of criminal sale of a controlled substance in the first and second degrees and criminal possession of a controlled substance in the first and second degrees. Defendant was also charged with criminal possession of a controlled substance in the first degree.

A police officer assigned to stakeout defendant’s apartment building testified at trial that shortly after noon on March 21, 1988, he observed a small white four-door vehicle drive up to the front of the six-story apartment building in which defendant lived. The officer also testified that he saw a male Hispanic exit the car, remove a black and white plastic bag with long, completely stretched handles from the trunk, and enter the courtyard leading to the building. No one followed the person into the building to ascertain where he went. The officer testified further that the same man left the building 15 minutes later with the same bag with similarly stretched handles. According to the officer, the man walked to the rear of his vehicle, opened the trunk, placed the bag back inside, got into the vehicle, drove a few feet, made a U-turn, and drove back past the police vehicle in which he was seated. The officer testified that he never stopped the driver of the white vehicle or ascertained what was in the bag. This incident, along with overheard conversations of defendant that he had rejected "tickets” (allegedly cocaine), presented the sole basis for convicting defendant of attempted possession of a controlled substance in the first degree.

Defendant was convicted, after a jury trial, of attempted criminal possession of a controlled substance in the first degree and conspiracy to possess a controlled substance in the second degree. The Appellate Division modified by dismissing the attempted possession conviction, the majority holding that, with respect to the attempted possession charge, the evidence is insufficient, as a matter of law, to establish that defendant’s conduct came "very near” or "dangerously near” to completion of the crime under settled New York precedents (172 AD2d 103, 106). Two Justices dissented (see, id.).

Penal Law § 110.00 states that "[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, [the person] engages in conduct which tends to effect the commission of such crime.” This Court has held that Penal Law § 110.00 requires a showing that defendant "committed an act or acts that carried the project forward within dangerous proximity to the criminal end to be attained” (People v Warren, 66 NY2d 831, 832). A person is guilty of criminal possession of a controlled substance in the first degree when the person knowingly and unlawfully possesses four or more ounces of a narcotic drug (see, Penal Law § 220.21 [1]).

In Warren (supra), this Court affirmed the dismissal of indictments charging two defendants with attempted criminal possession of a controlled substance where several contingencies stood between an earlier agreement to purchase and the contemplated purchase. The Grand Jury testimony showed that the defendants agreed to purchase cocaine from a police informant, but the transaction was not consummated because the informant did not have enough cocaine, the defendants did not have enough money, and the cocaine was not properly packaged. The informant agreed to meet the defendants later that evening to test the cocaine and effect the transaction. Before the informant departed, and while defendants were examining one-ounce bags of cocaine, police officers who were secretly watching the transaction entered the room and arrested them. This Court concluded that "the defendants did not come very near to the accomplishment of the intended crime” (id., at 833).

Here, too, the evidence adduced at trial does not establish that defendant came very near to the accomplishment of the crime of possession of a controlled substance in the first degree. According to the wiretap information, defendant had been anticipating a delivery of "tickets” from his suppliers for resale to a customer. The police observed an Hispanic male enter and leave the courtyard of the apartment building in which defendant lived carrying a heavy-laden shopping bag. The People assert that the unidentified male brought a supply of cocaine to defendant’s apartment and defendant rejected the supply. However, the stakeout police officer did not stop and question the Hispanic male or ascertain what was in the shopping bag, nor did he observe the male approach or enter defendant’s apartment. Thus, the testimony that an unidentified man entered and exited defendant’s apartment building amounts to no material evidence at all.

The sole basis for defendant’s guilt was the wiretap conversations in which defendant told another individual that he had just rejected a delivery of "tickets” as unacceptable because it was "no good” and "stuck together.” The evidence adduced simply does not establish beyond a reasonable doubt the attempted possession of cocaine by the defendant.

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

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

      . These conversations were routinely conducted in code words such as "tickets” or "tires” which the prosecution expert testified represented kilos of cocaine. Many such conversations were recorded in the weeks leading up to defendant’s arrest.

      . Defendant was sentenced to a concurrent term of 8⅓ to 25 years on the conspiracy charge, also the maximum.

      . Indeed, the statute interpreted in Rizzo, former Penal Law §2, is similar to the present version. The repealed statute provided: "An act, done with intent to commit a crime, and tending but failing to effect its commission, is 'an attempt to commit that crime.’ ”
      Under the revised Penal Law, all attempts were initially classified for sentencing purposes at a lower grade than the completed crime (see, L 1965, ch 1030), but subsequent legislation, premised on the belief that certain attempts — including attempted possession of a controlled substance in the first degree — were as serious as the completed crime, classified the attempt at the same grade as the consummated crime (see, Penal Law § 110.05 [1]; Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 110.05, at 427).

      . A kilogram weighs 35 ounces.

       It should be noted that although no objection to it was made by either party, the court erroneously charged the Federal standard on attempt in that a "substantial step” is required for the completion rather than the New York standard of a requirement that conduct come "very near” or "dangerously near” to completion (United States v Jackson, 560 F2d 112, cert denied 434 US 941).


author: Per Curiam.

text:
    In the Matter of Natasha C., a Person Alleged to be a Juvenile Delinquent, Respondent. In the Matter of Simone H., a Person Alleged to be a Juvenile Delinquent, Respondent. In the Matter of Karen M., a Person Alleged to be a Juvenile Delinquent, Respondent. In the Matter of Miguel R, a Person Alleged to be a Juvenile Delinquent, Respondent.
    Argued January 13,1993;
    decided February 18, 1993

      POINTS OF COUNSEL

      O. Peter Sherwood, Corporation Counsel of New York City, New York City (Elizabeth Dvorkin and Francis F. Caputo of counsel), for appellant.
    When a juvenile absconds from the jurisdiction of the Family Court the juvenile has committed an act that would constitute a crime if it were committed by an adult. Accordingly, absconding from the jurisdiction of the Family Court is a proper predicate act for a juvenile delinquency petition. (Matter of David G., 124 Misc 2d 579; Matter of Bliss v Bliss, 66 NY2d 382; People v Mobil Oil Corp., 48 NY2d 192; Matter of Randy K., 77 NY2d 398; Matter of Detrece H, 78 NY2d 107; Matter of Carmelo E., 57 NY2d 431; Matter of John N, 168 AD2d 368.)

      Judith Waksberg, New York City, and Lenore Gittis for Natasha C. and others, respondents.
    I. The Family Court correctly dismissed the petitions because respondents, juveniles charged with delinquency in the Family Court, cannot commit an act constituting bail jumping. (Matter of Natasha C, 181 AD2d 404; Matter of Randy K, 77 NY2d 398; Matter of Gregory W., 19 NY2d 55; Matter of David G., 124 Misc 2d 579; Matter of John N, 168 AD2d 386; Schall v Martin, 467 US 253; People ex rel. Wayburn v Schupf, 39 NY2d 682; Bellotti v Baird, 443 US 622.) II. The petitions are facially insufficient pursuant to Family Court Act § 311.2 (3) because they do not contain nonhearsay allegations establishing every element of the crime charged. (Matter of Jahron S., 79 NY2d 632; Matter of Detrece H., 78 NY2d 107; Matter of David T., 75 NY2d 927; Matter of Rodney J, 108 AD2d 307.)

      Peter Wilner, New York City, for Simone H., respondent.
    The courts below were correct in dismissing the petition because respondent was not released on her own recognizance nor on bail and therefore could not be guilty of committing an act constituting bail jumping in the second degree. (Matter of Natasha C., 181 AD2d 404; Matter of Randy K., 77 NY2d 398; Matter of Gregory W, 19 NY2d 55.)
   OPINION OF THE COURT

Per Curiam.

In these four unrelated juvenile delinquency proceedings, consolidated by the Appellate Division, respondents failed to appear on scheduled dates before Family Court and were charged with acts that, if committed by an adult, would constitute bail jumping in the second degree (Penal Law § 215.56). In each case, Family Court dismissed the charges holding that Penal Law § 215.56, by its terms, applies only to adults facing criminal prosecution for a felony. The Appellate Division affirmed and, we believe, correctly so.

These proceedings began when the presentment agency filed juvenile delinquency petitions against respondents charging each with acts that, if committed by an adult, would constitute a felony (see, Family Ct Act § 301.2 [1]). Respondents made initial appearances before the court and were then released at the court’s discretion (see, Family Ct Act § 320.5 [1]). As one condition of release, they agreed to return to court voluntarily. When they failed to do so, bench warrants were issued, and respondents were returned involuntarily. Ultimately, all four were granted dismissal of their juvenile delinquency petitions — Simone H. on failure-of-proof grounds and the other three because the presentment agency failed to meet the speedy hearing deadline imposed by Family Court Act § 340.1 (see, Matter of Randy K., 77 NY2d 398). A second set of petitions is now before us, those arising from respondents’ failure to appear in violation of the conditions of their releases and charging them with acts which if committed by an adult would constitute bail jumping. This appeal from the dismissal of those petitions presents solely a matter of statutory construction.

A juvenile delinquency petition can be sustained only if the conduct charged would constitute a crime if committed by an adult (Family Ct Act §§ 301.1, 301.2 [1]). Respondents contend that these juvenile delinquency petitions must be dismissed because their conduct did not provide the necessary elements of bail jumping as the crime is defined by section 215.56 of the Penal Law. As they read the statute, bail jumping occurs only when a person is released upon bail or upon his own recognizance during the pendency of a criminal action or proceeding involving felony charges. Because juveniles are not charged with felonies, are not subject to criminal actions or proceedings and are not released on their own recognizance, respondents maintain that the Penal Law § 215.56 cannot provide the predicate offense for a juvenile delinquency petition. That has been the holding in recent Appellate Division decisions (see, Matter of Natasha C., 181 AD2d 404 [bail-jumping statute not applicable in juvenile delinquency proceedings]; Matter of John D., 186 AD2d 564 [same]; Matter of Efraim O., 186 AD2d 571 [same]; Matter of Carmen M., 186 AD2d 567 [same]).

Penal Law § 215.56 states that a person is guilty of bail jumping when "he has been released from custody or allowed to remain at liberty, either upon bail or upon his own recognizance, upon condition that he will subsequently appear personally in connection with a charge against him of committing a felony”. "Release on own recognizance”, in turn, is defined in relevant part as allowing a person "to be at liberty during the pendency of the criminal action or proceeding * * * upon condition that he will appear thereat whenever his attendance may be required” (CPL 500.10 [2]). By its plain terms, the statute reaches only those released upon bail or their own recognizance and is further limited to those facing a criminal action or proceeding relating to a felony. However inexcusable it may be for juveniles to miss appearances in Family Court, their conduct is simply not the sort the Legislature intended to criminalize when it adopted this bail-jumping statute.

First, the limiting language of the statute indicates that the legislative drafters were contemplating only proceedings involving adults. A juvenile respondent is never required to "appear * * * in connection with a charge against him of committing a felony”. Though the petitions here were based on acts that would constitute felonies if committed by adults, respondents, as juveniles, were not charged with felonies. Consistent with the Family Court statutory scheme, their missed appearances were in connection with allegations of juvenile delinquency. Similarly, a juvenile delinquency proceeding in Family Court is not a "criminal action or proceeding”. It is civil in nature (Matter of Randy K., 77 NY2d 398, 402, supra) or at most "quasi-criminal” (Matter of Gregory W., 19 NY2d 55, 62). Likewise, Penal Law § 215.56 refers to release on recognizance, a term statutorily defined in the Criminal Procedure Law (§ 500.10 [2]), but not mentioned in the Family Court’s release statute (Family Ct Act § 320.5 [1]).

The Legislature’s intent not to apply this bail-jumping statute to Family Court proceedings is further evidenced by the Penal Law’s statutory scheme for the crime. The predecessor statute, as enacted and then reenacted, expressly applied only "in connection with a criminal action or proceeding” (see, former Penal Law § 205.35, added by L 1965, ch 1030, repealed and reenacted as Penal Law § 215.56, by L 1968, ch 510, §§ 1, 2). In fact, that language is now contained in Penal Law § 215.55, third degree bail jumping. When the current version of Penal law § 215.56 was adopted in 1983 (in connection with the creation of an additional degree of bail jumping), the term "felony” replaced the former "criminal action or proceeding” phrase (L 1983, ch 277).

Thus, the word "felony” as used in this statute should not be read, as the presentment agency urges, as "an act, which if done by an adult, would constitute a felony.” Rather, when read together with Penal Law §§ 215.55, 215.56 and 215.57, and in light of the history of the statute, it is plain that "felony” is used to calibrate the degree of bail jumping in a criminal action (see, Penal Law § 215.55 [bail jumping in a "criminal action or proceeding” is a class A misdemeanor]; § 215.56 [bail jumping in a "felony” case is a class E felony]; § 215.57 [bail jumping in a "class A or class B felony” case is a class D felony]).

That the Legislature has chosen to apply certain penalties to an adult’s failure to appear tells us nothing about its intentions regarding a juvenile’s absence from Family Court under substantially different circumstances. Like adults, juveniles have a personal obligation to return to court, and a bench warrant may be issued when they fail to do so. But that does not answer the narrow question of whether the Legislature intended the bail-jumping statute to apply to those involved in juvenile delinquency proceedings. It is not for the courts to identify culpable conduct, and in view of the unambiguous language appearing in section 215.56 and the Penal Law’s over-all bail-jumping scheme, we are unable to find any suggestion the Legislature intended that failure to appear in a juvenile proceeding would constitute a juvenile offense. Notwithstanding the significant problems absconding juveniles pose, it is for the Legislature, and not the courts, to make the necessary policy choices as to how best to address those problems.

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

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

Order affirmed, without costs.

       The statute’s reference to bail is not relevant here. Bail is not an option available in juvenile delinquency proceedings (see, Family Ct Act § 320.5; People ex rel. Wayburn v Schupf, 47 AD2d 79, 81).


author: Bellacosa, J.

text:
    John Heard et al., Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs, v Mario M. Cuomo, as Governor of the State of New York, et al., Defendants. Michael Koskinas et al., Individually and on Behalf of All Other Persons Similarly Situated, Respondents, v Jo I. Boufford, as President of the New York City Health and Hospitals Corporation, et al., Appellants, and Mario M. Cuomo, as Governor of the State of New York, et al., Respondents.
    Argued January 12,1993;
    decided February 18, 1993

      POINTS OF COUNSEL

      O. Peter Sherwood, Corporation Counsel of New York City, New York City (Leonard Koerner, Ronald E. Sternberg, George Gutwirth and Masako C. Shiono of counsel), for appellants.
    I. The Mental Hygiene Law does not impose upon the New York City Health and Hospitals Corporation the obligation to create, or otherwise to ensure the availability of, residences which are adequate and appropriate for the needs of mentally ill patients discharged from HHC hospitals. (People v Woman’s Christian Assn., 56 AD2d 101; Love v Koch, 161 AD2d 209; Hymowitz v Lilly & Co., 73 NY2d 487, 493 US 944; Wiggins v

      Town of Somers, 4 NY2d 215; San Antonio School Dist. v Rodriguez, 411 US 1; Matter of Levy [City of New York], 38 NY2d 653, 429 US 805; Lindsey v Normet, 405 US 56; Maresca v Cuomo, 64 NY2d 242, 474 US 802; Woe v Cuomo, 729 F2d 96, 469 US 936; Matter of Tolub v Evans, 58 NY2d 1, 460 US 1076.) II. The IAS Court, as affirmed by the Court below, erred in dismissing the Koskinas complaint as against the State defendants and in prematurely entering judgment against municipal defendants prior to adjudicating their claims against the State defendants.

      Moon Moss McGill & Bachelder, of the Maine Bar, admitted pro hac vice (Robert M. Hayes of counsel), and Paul, Weiss, Wharton & Garrison, New York City (Jay Topkis, Alisa D. Shudofsky and Ellen M. Moskowitz of counsel), for Michael Koskinas and others, respondents.
    I. The courts below correctly held that the City defendants are legally obligated to provide discharged psychiatric patients with appropriate residences and support services. (Sanders v Winship, 57 NY2d 391; Matter of Report of Aug.-Sept., 1983 Grand Jury III, 103 AD2d 176; Klostermann v Cuomo, 61 NY2d 525; Sega v State of New York, 60 NY2d 183; Love v Koch, 161 AD2d 209; Matter of New York State Inspection, Sec. & Law Enforcement Empls. v Cuomo, 64 NY2d 233; Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818; Matter of Evans v Newman, 100 Misc 2d 207; Glanzer v Shephard, 233 NY 236; Parvi v City of Kingston, 41 NY2d 553.) II. The arguments raised by the City defendants do not relieve them of their discharge planning obligations. (Klostermann v Cuomo, 61 NY2d 525; Matter of Kesselbrenner v Anonymous, 33 NY2d 161; People ex rel. Francis v Common Council, 78 NY 33; Jiggetts v Grinker, 75 NY2d 411; Bowen v State Bd. of Social Welfare, 45 NY2d 402; Matter of New York State Inspection, Sec. & Law Enforcement Empls. v Cuomo, 64 NY2d 233; McCain v Koch, 70 NY2d 109.) III. The courts below properly ordered the City defendants to achieve full compliance with the discharge planning directives of the Mental Hygiene Law by April 1993. (Klostermann v Cuomo, 61 NY2d 525; Matter of Kesselbrenner v Anonymous, 33 NY2d 161.)

      Robert Abrams, Attorney-General, New York City (Jerry Boone and Arnold D. Fleischer of counsel), for Mario M. Cuomo and another, respondents. Plaintiffs’ claims against the State defendants in Koskinas were rightly dismissed.

      (Grant v

      Cuomo, 130 AD2d 154, 73 NY2d 820; Jiggetts v Grinker, 75 NY2d 411; Klostermann v Cuomo, 61 NY2d 525.)
   OPINION OF THE COURT

Bellacosa, J.

The named individuals seeking declaratory relief in these two actions are homeless, mentally ill persons. They sue for themselves and on behalf of all persons similarly situated.

The Supreme Court, after a lengthy trial, ruled in favor of plaintiffs, and held that the duties imposed on defendant, New York City Health and Hospitals Corp. (HHC), under Mental Hygiene Law § 29.15, include a duty to implement the individual written service plans of mentally ill patients with respect to adequate and appropriate housing upon their discharge from its hospitals. The Appellate Division affirmed the judgment and granted essentially only HHC leave to appeal from the order upholding the judgment in plaintiffs’ favor against HHC. Thus, for purposes of deciding this matter, the statutory obligations of only defendant HHC are at issue, since the dismissal of the action against the State is not part of the appeal before us.

We now affirm the order of the Appellate Division and hold that, in the context of this case, Mental Hygiene Law § 29.15 imposes these duties on HHC: (1) to prescribe and assist in locating adequate and appropriate housing for about-to-be-discharged mentally ill patients; (2) to discharge them in accordance with the individualized, written, patient service plans which include recommended housing; and (3) to coordinate the effectuation of those efforts among responsible entities. Notably, neither the statute nor the affirmed judgment imposes upon HHC the explicit duty to build, create, supply or fund such housing.

Appellant HHC contends that the courts below have erroneously expanded its statutory duties and have imposed enormous and unintended new fiscal obligations on HHC to build and provide housing for mentally ill persons. Instead, it views its duty essentially as an aspirational, cooperative, joint venture. Conversely, the plaintiffs seek declaratory relief compelling HHC to act as prescribed under the statute, including securing "adequate and appropriate housing” for mentally ill patients upon their discharge from hospitals. In particular, they seek individualized, written discharge service plans and actual discharge in accordance with the specifications of those instructions.

The gist of this consolidated litigation seeking declaratory relief can be properly and best understood by reference to the four corners of the relevant adjudicatory paragraphs of the affirmed Supreme Court judgment:

"ordered, adjudged and declared that the New York City Health and Hospitals Corporation OHHC’) has violated its obligations with respect to discharge planning as set forth in MHL § 29.15 (f),
(g), (m) and (n), and it is hereby directed to comply with such provisions, which includes a duty to see that the residences in which patients discharged from its facilities are living are adequate and appropriate to their needs * * *
"ordered, adjudged and declared that the New York City Department of Mental Health, Mental Retardation and Alcoholism Services has an obligation pursuant to MHL § 29.15 (n) to cooperate with HHC in implementing discharge planning of patients from HHC facilities, and it is hereby directed to perform such obligation”.

Those decrees are derived from Mental Hygiene Law § 29.15, as amended in 1980, which provides in pertinent part that:

"(f) The discharge or conditional release of all clients at developmental centers, patients at psychiatric centers or patients at psychiatric inpatient services subject to licensure by the office of mental health shall be in accordance with a written service plan prepared by staff familiar with the case history of the client or patient to be discharged or conditionally released and in cooperation with appropriate social services officials and directors of local governmental units * * *
"(g) A written service plan prepared pursuant to this section shall include, but shall not be limited to, the following * * *
"2. a specific recommendation of the type of residence in which the patient is to live and a listing of the services available to the patient in such residence * * *
"(m) It shall be the responsibility of the chief administrator of any facility providing inpatient services subject to licensure by the office of mental health to notify, when appropriate, the local social services commissioner and appropriate state and local mental health representatives when an inpatient is about to be discharged or conditionally released and to provide to such officials the written service plan developed for such inpatient as required under subdivision (f) of this section.
"(n) It shall be the duty of directors of local social services districts and local governmental units to cooperate with facilities licensed or operated by an office of the department in the preparation and implementation of comprehensive written services plans as required by this section.” (Emphasis added.)

ANALYSIS

Every part of a statute must be given meaning and effect (see, Anglin v Anglin, 80 NY2d 553, 558; Sanders v Winship, 57 NY2d 391, 396; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 97, 98 [a]; § 231 [1971]), and the various parts of a statute must be construed so as to harmonize with one another (see, Anglin v Anglin, supra; People v Mobil Oil Corp., 48 NY2d 192, 199). Subdivisions (f) and (g) of Mental Hygiene Law § 29.15, when read together, require more than the creation of chart documentation for patients. Memorializing a discharge service plan in writing and delivering it to a mentally ill patient upon discharge from a hospital is not all that the statute commands. Indeed, the mere notation and delivery to patients of a discharge service plan — even one which sufficiently complies with subdivision (g) of the statute, a feature not uniformly or evidently fulfilled upon our particularized examination of this lengthy, detailed record — cannot be treated as satisfaction of the other discrete and complementary duties prescribed under the statute, most notably, subdivision (f). To be sure, the statutory duties may not be as explicit as one might prefer. However, they are plain enough and, as Judge Cardozo stated in another context over 70 years ago, "the whole writing may be 'instinct with an obligation,’ imperfectly expressed” (Wood v Duff-Gordon, 222 NY 88, 91). That, after all, is when judicial interpretation is properly summoned to fill the void or interstice. Moreover, this statute, at its core, "import[s] duty, not discretion” (Jiggetts v Grinker, 75 NY2d 411, 417).

The phrase, "in accordance with a written service plan,” in subdivision (f) contemplates some additional concrete action and responsibility by HHC. In the first instance, it must prescribe adequate and appropriate housing for about-to-be-discharged mentally ill patients, which it must then specify with some particularity in each patient’s discharge plan, and it must assist in the location of such housing and coordinate the effort to bring about the match of the patient to the prescribed housing. In other words, HHC is obligated to give some real legal and practical teeth to this task so that this discrete part of the statutory mandate is not rendered illusory. The position of HHC that compliance with subdivision (g) alone somehow, in effect, suffices, without some affirmative implementing action in accordance with the plans under subdivision (f), cannot prevail.

Our interpretation of the statute comports with and advances the stated policy of New York State to "develop a comprehensive, integrated system of treatment and rehabilitative services for the mentally ill,” which includes "assuring] the adequacy and appropriateness of residential arrangements for people in need of service” (Mental Hygiene Law § 7.01). Additional support for our view can be found in the legislative history of the 1980 amendment. The sponsor of the bill noted that "[t]he purpose of the bill [was] to prevent inappropriate residential placements of psychiatrically frail persons and to ensure that the discharging institutions identify and provide for the service needs of persons unable to live independently in the community” (Mem of Senator Padavan, 1980 NY Legis Ann, at 142). In considering the amendment, the Legislature’s concern was that "[p]atients [were] often placed in facilities that [could not] meet their needs or that provide[d] substandard care” (id., at 143). As noted further in the Governor’s approval memorandum, "[discharge planning is [only] the first step in the successful re-integration of a discharged mental patient into the community” (1980 NY Legis Ann, at 143). Evidently then, the amendment was intended to impose a duty on HHC to prevent inappropriate placements by requiring that patients be discharged "in accordance with” their individual discharge plans. It is noteworthy that the parties have acknowledged that the State’s policy and procedures with respect to discharging mentally ill, homeless patients from its inpatient care exceeds the minimal standards that HHC believes are imposed upon it under Mental Hygiene Law § 29.15.

We conclude, therefore, that the statute requires that HHC take concrete steps to prescribe in the discharge plan the specific type of adequate and appropriate housing necessary for the about-to-be-discharged mentally ill patients; to assist in locating such adequate and appropriate housing before the patients are discharged from inpatient care; to discharge the patients in accordance with their individual written service plans that include the recommended housing; and to coordinate the effectuation of those efforts among the responsible entities.

The trial court acknowledged that "the means by which the statute is to be implemented is left to the agencies involved.” Notably, neither the statute nor the affirmed judgment imposes upon HHC an explicit duty to build, create, supply or fund such housing (see, Governor’s Approval Mem, 1980 Legis Ann, at 143 [recognizing that "the bill will assure that existing resources are used in the most efficient manner possible”] [emphasis added]). This Court’s responsibility is precise and narrow in relation to the key document before us — the judgment. Our reviewing duty is to stay focused on the assessment of the correctness and the breadth of the specific decretal provisions of the judgment, not on the sweep of the articulation of the opinion of the trial court. Indeed, we do not adopt the opinion of Supreme Court and note further that the various interpretations and the commentaries superimposed on the case by the parties are similarly not embraced by our affirmance of the order upholding the judgment. For example, at this stage of this monumental social crisis and of this litigation, we deem it advisable to observe that the injection of the building-of-housing argument as a HHC governmental duty constitutes an overreading of the judgment at issue as affirmed by the Appellate Division and, now, our Court. Courts, after all, must be mindful not to arrogate to themselves a larger authority or remedy than that which lies within judicial and juridical competence. The power and responsibility of courts to interpret statutory duties and to direct compliance with them are large enough tasks by themselves (see, Klostermann v Cuomo, 61 NY2d 525, 531; see also, McCain v Koch, 70 NY2d 109,116).

In sum, we are confident about these features of this important statute that we are obligated to construe insofar as it affects the parties before us, plaintiffs and HHC: the Act requires more than aspirational cooperation and general altruism, and HHC is charged with the duty to effectuate the legislative mandates, as construed by the judgments of the courts. This legislation is not about an abstract societal problem; it is a summons to action in solving this particular part of the homeless crisis, one step and one patient at a time.

The appellant’s other arguments do not materially affect our analysis or the result we reach in this case.

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

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and Smith concur.

Order affirmed, with costs.


author: Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v Dominic J. DiFalco, Appellant.
    Argued January 5,1993;
    decided February 25, 1993

      POINTS OF COUNSEL

      Murray and Williams, Batavia (Thomas D. Williams of counsel), for appellant. The arrest of defendant was improper and unauthorized as it was without probable cause and based solely on the information obtained from an informant whose veracity was not established.

      (People v Johnson, 66 NY2d 398; Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; People v Wheatman, 29 NY2d 337; People v Elwell, 50 NY2d 231; People v Alaimo, 34 NY2d 187; People v Rodriguez, 52 NY2d 483; People v Comforto, 62 NY2d 725; People v Bartolomeo, 53 NY2d 225; People v Hicks, 38 NY2d 90.)

      Robert C. Noonan, District Attorney of Genesee County, Batavia (Lawrence Friedman of counsel), for respondent.
    I. The reliability of the informant was established via police confirmation of details corroborative of the informant’s data. (Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; People v Elwell, 50 NY2d 231; People v Torres, 155 AD2d 231.) II. The reliability of the informant was established via his statements to the police which, if false, would have subjected him to prosecution. (People v Hicks, 38 NY2d 90; People v Brown, 40 NY2d 183.) III. This case involved a citizen informant, whose reliability did not need to be established. (People v Cantre, 95 AD2d 522, 65 NY2d 790.) IV. The police possessed information sufficient to provide them with reasonable suspicion to perform a forcible stop. (People ex rel. Gonzalez v Warden, 79 NY2d 892; People v Cantor, 36 NY2d 106.) V. The issue presented by appellant is beyond this Court’s scope of review. (People v Wharton, 46 NY2d 924; People v McRay, 51 NY2d 594; People v Clements, 37 NY2d 675; People v Grimaldi, 52 NY2d 611.)
   OPINION OF THE COURT

Hancock, Jr., J.

Based on information provided by an identified person, the police stopped the car defendant was driving, arrested defendant and a passenger, and seized cocaine found inside the car. The issue here is whether the veracity component of the Aguilar/Spinelli test for the adequacy of probable cause may — as indicated in People v Elwell (50 NY2d 231) — be satisfied by police corroboration of details that are not, if taken separately, suggestive of criminal activity. We hold that, in this case, the informant’s veracity was established by such details. The order of the Appellate Division should, therefore, be affirmed.

I.

On his own initiative, the informant, Timothy Thompson, told a Genesse County Deputy Sheriff that Johnny Lee Shannon was selling cocaine. He gave the information directly to the police in a face-to-face meeting at the station house. Thompson had never previously acted as an informant for a police agency and, even though he was on probation and had sought help from the police in gaining admission to a drug treatment program, there is no indication that he was under any immediate or future threat of being charged with violating his probation. The Deputy gave Thompson $200 in police "buy” money and drove him to Shannon’s house so that he could make a controlled "buy”. Although he dropped Thompson off around the corner from Shannon’s house, the Deputy did not see him enter or leave it. Thompson was gone for about four minutes and, upon his return, said that Shannon had taken the money. The Deputy searched him and confirmed the fact that he no longer had the $200.

According to Thompson, Shannon was going to Rochester to pick up cocaine; he would drive a white Chevrolet Impala, which the Deputy had seen in Shannon’s driveway in Batavia; he would travel east to Rochester and return via Route 490; and Shannon would meet Thompson to deliver his order of cocaine in about 1 hour and 45 minutes at a specified address on Dublin Road in Bergen, a town just off Route 490, a few miles west of Rochester. Police observers soon reported that the white Chevrolet Impala had left Shannon’s driveway. A few minutes later, the police located the car on College Road in Batavia heading east toward Route 490 with Shannon in the passenger seat and defendant driving. Defendant and Shannon entered Route 490 and proceeded east toward Rochester. Approximately one and a half hours later, they reappeared traveling west on Route 490. The police stopped the car on the Route 490 exit ramp leading to Bergen, arrested both occupants, and seized the cocaine which they found inside.

Defendant moved to suppress the evidence found in the car based on lack of probable cause for the warrantless arrest. After the trial court denied the motion, defendant pleaded guilty to criminal possession of a controlled substance in the fifth degree. The Appellate Division affirmed the conviction, holding that probable cause existed for the arrest based on the information provided by Thompson and that the police had corroborated sufficient details of Thompson’s information to ensure its reliability. Two Justices dissented, arguing that corroboration by the noncriminal activities observed did not to establish the reliability of Thompson’s information.

II.

Probable cause for a warrantless arrest may be based on hearsay information, but only upon a showing that both the basis of knowledge and veracity components of the Aguilar/ Spinelli test have been met (see, Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; People Johnson, 66 NY2d 398, 402; People v Landy, 59 NY2d 369, 375). Only the veracity component of the test is at issue here. That component relates to the validity of the information and requires a showing either that the informant is credible and that the information supplied may, for that reason, be accepted as true or, in the absence of such showing, that the specific information given is reliable (see, Spinelli, supra, at 415-416; Johnson, supra, at 402; Stanley v State, 19 Md App 507, 313 A2d 847, 863 [Ct Spec Apps 1974]; see also, 1 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.3 [a], at 613 [2d ed 1987]). The separate basis of knowledge and veracity requirements of Aguilar/Spinelli are analytically independent and each must be satisfied (see, Johnson, supra, at 402-403; see also, United States v Harris, 403 US 573, 592 [Harlan, J., dissenting]).

Here, the People seek to satisfy the veracity requirement of Aguilar/Spinelli not by focusing on the informant or his propensity for truth telling, but by establishing the reliability of the particular information provided by the informant. They contend that this may be done by corroboration through independent verification of sufficient details of that information, despite the fact that, analyzed separately, these details do not evince criminality. The People argue that permitting satisfaction of the veracity requirement with such corroboration can meet the concern for individual liberty necessarily involved in a warrantless arrest based on hearsay information from a known informant. We agree.

In People v Elwell (50 NY2d 231, supra), this Court emphasized that while the basis of knowledge for the informant’s tip may, in a proper case, be "corroborated” through details, it can only be done if the details are sufficient in number and suggestive of or directly related to criminal activities (id., at 236). The question here is whether this same insistence that the "corroborated” details evince criminality is a necessary and appropriate requirement when the veracity component of the Aguilar/Spinelli test is being satisfied by independent verification of the informant’s tip. We hold that such insistence is not necessary. This conclusion is justified by the conceptual and functional differences between the basis of knowledge and veracity components.

"Corroboration”, as the word is used when the informant’s basis of knowledge is established from the informant’s statement alone is, in the true sense of the term, not corroboration at all; it is, in actuality, nothing more than the effect or impression on the arresting officer or issuing Magistrate created by the accumulation and quality of details in the information furnished by the informant (see, Spinelli, supra, at 416-417; see also, Kamisar, Gates, "Probable Cause,” "Good Faith, ” and Beyond, 69 Iowa L Rev 551, 557-558 [1984]). Such details, if they are sufficient in number and possess the proper specificity, can "corroborate” or "self-verify” the basis for the informant’s data by demonstrating that the informant must have obtained the information from firsthand observation or intimate knowledge of the criminal enterprise (see, Spinelli, supra). For the veracity component, on the other hand, "corroboration” by verification of details is the traditional sort of independent corroboration by the police in checking out the truth of the informant’s tip through information obtained from a source other than the informant’s statement (see, Stanley, 313 A2d, at 862-863, supra; see also, Kamisar, op. cit., at 557-558).

The protections provided by the two components of the Aguilar/Spinelli test also differ. The purpose of the basis of knowledge inquiry is the assurance that the informant’s tip does not reflect inaccurate information or rumor. When the police or issuing Magistrates ground their acceptance of the informant’s basis of knowledge on the quantity and nature of the details in the informant’s statement their judgment is being made solely — and without other confirmation — on an analysis of the data the informant supplied and the words used. It is reasonable, in that situation, to require that at least some of the details in the informant’s statement be of criminal activities showing that the source had firsthand knowledge of the criminal endeavor.

In contrast to this method of "corroboration” through "self-verification”, often used to establish the basis of knowledge, the protection provided by the veracity component is the assurance that the informant is worthy of belief or that the information is reliable. Part of this assurance, of course, necessarily depends on an evaluation of the behavior and manner of the informant and the plausibility of his statement. But the principal assurance is furnished by corroboration of the statement through a factor independent of the statement’s contents — i.e., the conclusion by the police from their own separate investigation that significant details of the information provided have been verified as accurate. The theory is that if significant details have been verified as true it is reasonable to suppose that other details, which remain unverified, are also true.

It is possible, of course, that an ill-willed informant attempting to implicate or vilify an innocent person could provide a few accurate but innocuous details of someone’s expected activities in order to give the report the appearance of reliability (see, Mather, The Informer’s Tip as Probable Cause for Search or Arrest, 54 Cornell L Rev 958, 967-968 [1969] [citing Harney and Cross, The Informer in Law Enforcement, at 33-37 (1962)]). Thus, to be sufficient corroboration, the independently verified details, although not of themselves criminal in nature, may not be merely peripheral to the reported criminal scheme; they must fit within the informant’s story of the contemplated crime as activities which are significant and essential to carrying it out (see, Mather, op. cit., at 967-968 [citing Spinelli, supra, at 417-418]). Corroboration by such noncriminal details, particularly where known informants have given the tip to authorities on their own initiative, we believe, will adequately protect the rights of the suspect by guarding against "the informant’s guile, gregariousness or gullibility [which] may cause him to pass on unreliable or even deliberately false information” (Elwell, supra, at 237).

Accordingly, we hold that the veracity prong of the Aguilar/Spinelli test may, in a proper case, be established through corroboration where the police have verified only noncriminal details of activity referred to in the informant’s statement. In Elwell we indicated that the reliability of the information provided, as distinguished from the basis of knowledge, could "be corroborated by details concerning dress, mannerisms, route or conveyance to be used by the subject of the information, which in themselves are wholly unsuggestive of crime” (Elwell, supra, at 237). This holding accords with decisions of other States (see, e.g., State v Jones, 706 P2d 317 [Alaska 1985]; State v Kimbro, 197 Conn 219, 496 A2d 498 [1985]; see generally, 1 LaFave, op. cit., § 3.3 [f], at 682-683).

III.

In this case, the informant, Thompson, provided information directly to the police on his own initiative in a face-to-face meeting at the station house, giving the police an opportunity to judge his demeanor and evaluate his story. Although he was on probation, Thompson was under no threat of criminal prosecution. The police were able to verify several significant details of Thompson’s story which, although noncriminal if taken separately, when viewed collectively are strongly suggestive of the crucial fact — that Shannon had made the planned purchase of drugs in Rochester.

Thompson had told the police that Shannon was going to Rochester from Batavia to buy drugs, that he had promised to buy drugs for Thompson with the $200, and that he had agreed to deliver the drugs at a specified location in Bergen approximately 1 hour and 45 minutes later. The heart of the criminal enterprise was, of course, the trip to Rochester where the drugs were to be purchased. As to this essential element, Thompson gave the police the following details which they verified through personal observation: (1) Shannon would be driving a white Chevrolet Impala; (2) the car would proceed from Shannon’s house to Route 490; (3) Shannon would drive onto Route 490 east toward Rochester; (4) he would return on Route 490 west; (5) the trip from Batavia to Rochester and back to Bergen where the delivery was to be made would take about 1 hour and 45 minutes.

That Shannon traveled east on Route 490 toward Rochester and returned on Route 490 west to the Bergen exit within the time it would take to travel to Rochester, make a short stop and get back to Bergen certainly suggests that Shannon traveled to Rochester on some mission and returned without delay. To be sure, the Deputy’s belief in the truth of the critical fact — that the purpose of the mission was to purchase drugs — must ultimately depend on Thompson’s veracity. Additional facts observed by the police point to the criminal purpose of the mission: that Thompson no longer had the $200 which he stated he had given to Shannon, that Shannon’s car was stopped on the Bergen exit of Route 490 west, and that Shannon had returned on Route 490 west to the Bergen exit soon enough to make the prospective delivery to Thompson at the appointed time. We believe, under these circumstances, that the police had sufficient independent verification to satisfy the veracity component of Aguilar/Spinelli. Inasmuch as Thompson’s basis of knowledge is not questioned, the police had probable cause for the warrantless arrest of defendant.

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

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

Order affirmed.

      . This Court, as a matter of State constitutional law, adheres to the Aguilar/Spinelli test and has expressly rejected the less protective "totality of the circumstances” standard which the United States Supreme Court adopted in Illinois v Gates (462 US 213) in lieu of Aguilar/Spinelli (see, People v Bigelow, 66 NY2d 417, 424-426; Johnson, supra, at 405-407).

        . Alternatively, the veracity component may be met by showing that the informant was credible because he had a "track-record”; gave information against his penal interest; or furnished information while under oath (see, People v Johnson, supra, at 403; People v Rodriguez, 52 NY2d 483). None of these methods was used here.

        . "Self-verification” is not the only method for establishing the informant’s basis of knowledge. As indicated in Elwell (supra, at 237), this can also be established by independent police verification of criminal details provided by the informant.