author: Simons, J.

text:
    [623 NE2d 509, 603 NYS2d 382]
    The People of the State of New York, Respondent, v Gary Steadman, Appellant. The People of the State of New York, Respondent, v Raymond Blair, Appellant.
    Argued September 1, 1993;
    decided October 12, 1993

      POINTS OF COUNSEL

      Sally Wasserman, New York City, for appellant in the first above-entitled action.
    Defendant’s State and Federal constitutional rights were violated by the prosecution’s refusal to disclose the complete terms of its cooperation agreement with the only alleged eyewitness to the crime and by the prosecution’s calculated scheme to evade its obligations to disclose this exculpatory evidence which rendered that material virtually unusable to defendant. (People v Novoa, 70 NY2d 490; People v Cwikla, 46 NY2d 434; Brady v Maryland, 373 US 83; Giglio v United States, 405 US 150; People v Cortijo, 70 NY2d 868; People v Pelchat, 62 NY2d 97; People v Simmons, 36 NY2d 126; People v Vilardi, 76 NY2d 67; People v Savvides, 1 NY2d 554; People v Mangi, 10 NY2d 86.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Elizabeth M. Fox and Steven J. Chananie of counsel), for respondent in the first above-entitled action.
    The nondisclosure of a promise made by the prosecutor to an attorney for an eyewitness did not violate defendant’s rights where defendant was aware of the promise during trial, and effectively presented evidence of it during the defense case. (People v Vilardi, 76 NY2d 67; People v Cortijo, 70 NY2d 868; People v Brown, 67 NY2d 555; People v Smith, 63 NY2d 41; People v Stridiron, 33 NY2d 287; People v Bolling, 157 AD2d 733; People v Murphy, 179 AD2d 559; People v Knowles, 177 AD2d 597; People v Taylor, 160 AD2d 556.)

      Randall D. Unger, Forest Hills, for appellant in the second above-entitled action.
    I. The prosecutor’s failure to disclose the existence and terms of the cooperation agreement entered into with Anthony Malloy deprived appellant of a fair trial. (Brady v Maryland, 373 US 83; United States v Agurs, 427 US 97; Giglio v United States, 405 US 150; People v Cwikla, 46 NY2d 434; People v Savvides, 1 NY2d 554; People v Lewis, 174 AD2d 294; People v Novoa, 70 NY2d 490; People v Vilardi, 76 NY2d 67.) II. Appellant was deprived of his fundamental right of confrontation as a result of the trial court’s erroneous refusal to allow cross-examination regarding Mr. Latimer’s communication of the prosecution’s promise to his client Malloy and its refusal to compel Malloy to testify about his pending cases. (People v Mitchell, 58 NY2d 368; Matter of Priest v Hennessy, 51 NY2d 62; Matter of Jacqueline F., 47 NY2d 215; Rossi v Blue Cross & Blue Shield, 73 NY2d 588; Matter of Le Fever v Lefkowitz, 18 Misc 2d 278, 6 AD2d 998; Chambers v Mississippi, 410 US 284; Davis v Alaska, 415 US 308; People v Osorio, 75 NY2d 80; People v Schneider, 44 AD2d 845, 36 NY2d 708; People v Chin, 67 NY2d 22.) III. The pervasive pattern of misconduct by the prosecution deprived appellant of a fair trial. (People v Pelchat, 62 NY2d 97; People v Ventimiglia, 52 NY2d 350; People v Holt, 67 NY2d 819; People v Conyers, 52 NY2d 454; People v Livingston, 128 AD2d 645; People v Crimmins, 36 NY2d 230.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Elizabeth M. Fox and Steven J. Chananie of counsel), for respondent in the second above-entitled action.
    I. The nondisclosure of a promise made by the prosecutor to an attorney for an eyewitness did not violate defendant’s rights where the defense was aware of the promise during trial and effectively presented evidence of it during the defense case. (People v Vilardi, 76 NY2d 67; People v Cortijo, 70 NY2d 868; People v Brown, 67 NY2d 555; People v Smith, 63 NY2d 41; People v Stridiron, 33 NY2d 287; People v Bolling, 157 AD2d 733; People v Murphy, 179 AD2d 559; People v Knowles, 177 AD2d 597; People v Taylor, 160 AD2d 556; People v Dunn, 149 AD2d 528.) II. Defendant was not denied his right to confrontation by the assertion of the attorney-client privilege by Malloy’s attorney. (People v Nuccie, 57 NY2d 818; Davis v Alaska, 415 US 308; People v Chin, 67 NY2d 22; Chambers v Mississippi, 410 US 284; Douglas v Alabama, 380 US 415; Rock v Arkansas, 483 US 44; Washington v Texas, 388 US 14; People v Shapiro, 308 NY 453; People v Wilkins, 65 NY2d 172; Matter of Creekmore, 1 NY2d 284.) III. Defendant was not denied a fair trial due to actions by the prosecution. (People v Ventimiglia, 52 NY2d 350; People v Santarelli, 49 NY2d 241; People v Allweiss, 48 NY2d 40; People v Berg, 59 NY2d 294; Feldsberg v Nitschke, 49 NY2d 636; Martin v Alabama 84 Truck Rental, 47 NY2d 721; People v Dickman, 42 NY2d 294; People v Stanard, 42 NY2d 74; People v Nuccie, 57 NY2d 818; People v Trowbridge, 305 NY 471.)
   OPINION OF THE COURT

Simons, J.

Defendants have been convicted of manslaughter, second degree, and criminal possession of a weapon, second degree, charges resulting from the death of Maxine Peterson on May 28, 1988. The prosecution’s principal witness against defendants, and the only one identifying them, was Tony Malloy. Malloy admittedly had been a drug user and had two prior felony convictions. At the time of trial, he was on probation for one of the prior convictions and three open felony charges were pending against him.

Defendants sought pretrial disclosure of any promise of leniency made to Malloy in exchange for his favorable testimony against them. Although the prosecution revealed some arrangements made with Malloy, it failed to advise defendants that Assistant District Attorney Dan McCarthy, the trial assistants’ superior, had in fact agreed with Malloy’s attorney that Malloy would not be required to go to prison on the pending charges if he testified against defendants. Defendants assert that McCarthy’s agreement with Malloy’s counsel was Brady material and that the prosecution’s failure to disclose it requires a new trial. We agree and therefore reverse the orders of the Appellate Division.

I

In response to the pretrial request for Brady material, the prosecution acknowledged that a few days after Malloy’s Grand Jury appearance it purchased airplane tickets to Virginia for Malloy and his girlfriend and paid their first month’s rent there. It also paid Malloy a total of $1,500 in cash before he returned to New York for the trial about a year later. The pending charges against him were adjourned until after defendant’s trial.

Malloy testified at trial that he was told by the District Attorney’s office at the time he returned that he would be relocated in the future, but asserted that no promises of leniency had been made with respect to his pending charges. Inasmuch as a conviction on any of the open charges would render Malloy a persistent felony offender, subject to a lengthy mandatory sentence of imprisonment, defense attorneys asked him how he could be assured of relocation unless the District Attorney contemplated a dismissal of the pending charges. Notwithstanding this apparent inconsistency, Malloy insisted no promises had been made. He acknowledged, however, that while in Virginia he had talked with McCarthy at least 25 times on the telephone and had met with him on other occasions after his return to New York and before he testified.

During the trial, the defense learned that McCarthy had promised Malloy’s attorney, Jonathan Latimer, that Malloy could avoid incarceration if he testified truthfully against defendants. Defendants subpoenaed Latimer who testified that he and McCarthy had negotiated such an agreement following Malloy’s Grand Jury testimony. It was his "understanding”, Latimer said, that no promises were made directly to Malloy, and he believed no details of the agreement were communicated to the two trial assistants. Citing the attorney-client privilege, Latimer refused to disclose what, if anything, he told Malloy about the agreement. He also stated that he met with the trial assistants and Malloy when they prepared Malloy’s trial testimony. Latimer testified that at these meetings the trial assistants instructed Malloy that if asked about promises of leniency he was to answer that none had been made to him.

Defendants moved to dismiss the indictment or for a new trial on the ground that there was an agreement with Malloy for leniency and that it constituted Brady material that should have been disclosed before trial (People v Novoa, 70 NY2d 490; People v Cwikla, 46 NY2d 434; People v Savvides, 1 NY2d 554). The trial court ruled that a Brady violation had occurred, but determined that defendants were not deprived of a fair trial as a result. The court reasoned that disclosure had been made during trial and that the manner of disclosure likely aided the defense by casting doubts on Malloy’s credibility. The Appellate Division affirmed.

On this appeal, the People contend that Malloy was never informed of the agreement and, thus, it could not have influenced his testimony or affected his credibility. Alternatively, they argue that since defense counsel learned of the agreement through third parties during trial, defendants had "a meaningful opportunity” to use it, and thus the People’s failure to disclose the agreement is not grounds for reversal (see, People v Cortijo, 70 NY2d 868; People v Brown, 67 NY2d 555, cert denied 479 US 1093; People v Smith, 63 NY2d 41).

It is worth noting at the outset that no prosecutor with knowledge of the negotiations with Malloy or his counsel or the details of the agreement has yet made a full disclosure to any court. Thus, the People’s argument that Malloy’s credibility was not affected by the agreement requires that we accept the assertions of Malloy and the trial assistants that they did not know of McCarthy’s promises. Even if Malloy were ignorant of the agreement or its details, however, the scheme employed by the District Attorney’s office undermines the purposes of the Brady and Savvides rules. It cannot be condoned.

II

Prosecutors occupy a dual role as advocates and as public officers and, as such, they are charged with the duty not only to seek convictions but also to see that justice is done. In their role as public officers, they must deal fairly with the accused and be candid with the courts (see, People v Pelchat, 62 NY2d 97, 105; see also, People v Vilardi, 76 NY2d 67, 76; People v Simmons, 36 NY2d 126, 131-132). This rule of fairness, rooted in the concept of constitutional due process, has been given substance by the Brady decision which imposes on the People the duty to disclose to the defense evidence in its possession that is favorable to the accused (Brady v Maryland, 373 US 83; see also, People v Novoa, 70 NY2d 490, supra; People v Cwikla, 46 NY2d 434, supra). The prosecutor’s duty is not lessened because Brady material may affect only the credibility of a government witness. Indeed, we have held explicitly that the duty includes promises of leniency given to the witness in exchange for favorable testimony against an accused (People v Novoa, supra; People v Cwikla, supra; People v Savvides, supra). Moreover, the prosecutor’s duty extends to correcting mistakes or falsehoods by a witness whose testimony on the subject is inaccurate (People v Savvides, 1 NY2d 554, supra).

Even the most casual reading of the record in this case shows a determined effort by the prosecution to avoid these accepted standards of conduct and to undermine the rule of Savvides. In a studied effort, McCarthy sought to "shield” the trial assistants and Malloy from knowledge of the agreement. He sought to arrange negotiations so that only he and attorney Latimer knew of the promises and he urged Latimer not to divulge them to his client. Moreover, after the defendants learned of the agreement and subpoenaed Latimer to testify, they were blocked from determining whether Latimer had advised his client of the agreement by Latimer’s invocation of the attorney-client privilege. McCarthy’s scheme effectively foreclosed any meaningful inquiry into Malloy’s knowledge and whether promises of leniency affected his testimony. Moreover, it placed the trial assistants in the position of not only advising Malloy to testify that no promises of leniency had been made to him when they had been, either directly or indirectly, but also, because the trial preparation took place in his presence, of compromising Latimer’s ethical position and implicating him in the scheme to mislead the court and the defendants.

In the final analysis, however, it does not matter whether the trial assistants were genuinely unaware of the arrangement or not. A prosecutor’s obligations to correct false testimony given by prosecution witnesses and to disclose Brady material are duties exercised by individual prosecutors and shared by the prosecutor’s office as a whole. Promises made to a defendant by one prosecutor are generally binding on others in the criminal law enforcement system and certainly promises made by a superior are binding on subordinates in the same office. More importantly, the trial assistants here were chargeable with knowledge of McCarthy’s promises to Malloy’s attorney (see, United States v Giglio, 405 US 150, 154; People v Novoa, supra, at 498; Matter of Chaipis v State Liq. Auth., 44 NY2d 57, 64; People v Conlan, 146 AD2d 319, 331). After Malloy had testified that no deal for leniency had been struck, the trial assistants, as representatives of their office, had the responsibility of clarifying the record by disclosing all the details of what had actually transpired between their office and Malloy and his attorney. They could not profess ignorance of the arrangement and rely on Latimer’s successful invocation of the attorney-client privilege to conceal the facts about the arrangement between Latimer and McCarthy. If the trial assistants had no personal knowledge of the agreement and could not advise the court and the jury about it, then they were required to produce McCarthy or someone else who could. The one thing they could not do was sit silently by and leave the issue in doubt (see, People v Novoa, supra, at 498).

The People’s position is not saved by the rule stated in Cortijo and similar decisions (supra) in which we concluded that disclosure of the Brady material during trial obviated the Brady violation, provided the defendant had a meaningful opportunity to use the material. There was no full disclosure by an informed prosecutor here. With the record in this state, it is pointless to talk about an opportunity to use Brady material when the court and defense counsel are kept in ignorance of what the material is.

Ill

The error cannot be said to be harmless (People v Crimmins, 36 NY2d 230, 237). Malloy was the sole identification witness, and his credibility was a pivotal consideration. Though the applicability of a harmless error analysis in cases such as this has been open to some question (see, People v Novoa, 70 NY2d 490, 499, supra; People v Conlan, 146 AD2d 319, 331, supra), we hold that it is required. People v Savvides (1 NY2d 554, 557, supra) suggested that a violation like the one here constituted fundamental error requiring reversal, but the Savvides Court in fact employed a harmless error analysis. In labeling the error fundamental, it relied on People v Creasy (236 NY 205, 221), which likewise employed a harmless error analysis.

Accordingly, in each case the order of the Appellate Division should be reversed, a new trial ordered on the present indictment solely with respect to the count of criminal possession of a weapon in the second degree, and the indictment otherwise dismissed without prejudice to the People, if they be so advised, to re-present any appropriate charges to another Grand Jury (see, People v Villani, 59 NY2d 781, 782; People v Mayo, 48 NY2d 245, 253).

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

In each case: Order reversed and case remitted to Supreme Court, Queens County, for further proceedings in accordance with the opinion herein.


source: Caselaw Access Project

author: Simons, J. Hancock, Jr., J. Bellacosa, J.

license: Public Domain

text:
    [623 NE2d 513, 603 NYS2d 386]
    Grace Plaza of Great Neck, Inc., Respondent, v Murray Elbaum, Appellant.
    Argued August 31, 1993;
    decided October 14, 1993

      POINTS OF COUNSEL

      Carro, Spanbock, Raster & Cuiffo, New York City (Joseph D. Pope of counsel), for appellant.
    I. Neither Jean Elbaum nor her husband is required to pay Grace Plaza for medical treatment that Jean Elbaum opposed. (Schloendorff v Society of N. Y. Hosp., 211 NY 125; Union Pac. Ry. Co. v Botsford, 141 US 250; Cruzan v Director, Mo. Dept. of Health, 497 US 261; Matter of Fosmire v Nicoleau, 75 NY2d 218; Matter of Westchester County Med. Ctr. [O’Connor], 72 NY2d 517; Matter of Storar, 52 NY2d 363, 454 US 858; Matter of Delio v Westchester County Med. Ctr., 129 AD2d 1; Rivers v Katz, 67 NY2d 485; Winters v Miller, 446 F2d 65; Zimmerman v New York City Health & Hosps. Corp., 91 AD2d 290.) II. Grace Plaza and Dr. Corn are liable for battery. (McCandless v State of New York, 3 AD2d 600; Matter of Fosmire v Nicoleau, 75 NY2d 218; Matter of Barbara C., 101 AD2d 137; Welch v Mr. Christman Inc., 57 NY2d 143; Hartford Acc. & Indem. Co. v Village of Hempstead, 48 NY2d 218.)

      Proskauer Rose Goetz & Mendelsohn, New York City (Steven E. Obus, Edward S. Rornreich and Betsy R. Martin of counsel), for respondent.
    I. Because Grace Plaza properly provided life-sustaining care to Mrs. Elbaum until the Court below determined that such care should be discontinued, Grace Plaza is entitled to be compensated. (People v Eulo, 63 NY2d 341; Matter of Storar, 52 NY2d 363, 454 US 858; Matter of Delio v Westchester County Med. Ctr., 129 AD2d 1; Matter of Westchester County Med. Ctr. [O’Connor], 72 NY2d 517; Shapira v United Med. Serv., 15 NY2d 200; Cruzan v Director, Mo. Dept, of Health, 497 US 261; Matter of Wickel v Spellman, 159 AD2d 576; State of New York v Reiss, 127 AD2d 910; Holtzman v Stutz, 125 AD2d 640; Matter of Anderson, 119 Misc 2d 248; Edson v Hammond, 142 App Div 693.) II. The trial court properly dismissed Elbaum’s claims for battery and punitive damages. (Matter of Reilly v Reid, 45 NY2d 24; Israel v Wood Dolson Co., 1 NY2d 116; Becker & Assocs. v State of New York, 79 AD2d 599, 52 NY2d 1030; Federated Dept. Stores v Moitie, 452 US 394; Santangelo v YMCA of Greater N. Y., 100 AD2d 581; Engel v Aponte, 51 AD2d 989.)

      Ann E. Fade, New York City, for Choice In Dying, Inc.,

      amicus curiae.

    This Court should repudiate the unworkable
    clear and convincing evidence standard and adopt substituted judgment as the standard to best protect an individual’s right to determine medical treatment. (Matter of Westchester County Med. Ctr. [O’Connor], 72 NY2d 517.)

      John J. Regan, Hempstead, for the Association of the Bar of the City of New York, amicus curiae.

    I. Prior court approval is not automatically required before forgoing life-sustaining treatment. (Matter of Storar, 52 NY2d 363, 454 US 858; Matter of Westchester County Med. Ctr. [O’Connor], 72 NY2d 517; Cruzan v Director, Mo. Dept. of Health, 497 US 261.) II. An incapacitated individual’s right to personal autonomy in medical decision-making is best served by giving effect to that individual’s wishes and beliefs in accord with the patient’s best interests and the principles of substituted judgment. (Schloendorff v Society of N. Y. Hosp., 211 NY 125; Rivers v Katz, 67 NY2d 485; Cruzan v Director, Mo. Dept. of Health, 497 US 261; Santosky v Kramer, 455 US 745; Addington v Texas, 441 US 418.)

      Meyer, Suozzi, English & Klein, P. G, Mineóla (Michael A. Ciaffa of counsel), Rivkin, Radler & Kremer, Uniondale (Evan H. Krinick of counsel), and Russo & Kramer, Westbury (David A. Smith of counsel), for the Coalition of Institutionalized Aged and Disabled, Inc., and others, amici curiae.

    The public policy of this State mandates the rejection of the nursing home’s demand for payment for the unwanted services it imposed upon Jean Elbaum. (Matter of Fosmire v Nicoleau, 75 NY2d 218; Matter of Westchester County Med. Ctr. [O’Connor], 72 NY2d 517; Rivers v Katz, 67 NY2d 485; Matter of Storar, 52 NY2d 363; Matter of Delio v Westchester County Med. Ctr., 129 AD2d 1; Matter of Lydia E. Hall Hosp. [Cinque], 116 Misc 2d 477; Matter of Saunders v State of New York, 129 Misc 2d 45; Schloendorff v Society of N. Y. Hosp., 211 NY 125; Matter of Melideo, 88 Misc 2d 974; Matter of Erickson v Dilgard, 44 Misc 2d 27.)

      James Bopp, Jr., Thomas J. Marzen, Daniel Avila and John Altomare, of the Indiana Bar, admitted pro hac vice, for the Ethics and Advocacy Task Force of the Nursing Home Action Group, amicus curiae.

    I. Law and public policy favor the preservation of human life. (Cruzan v Director, Mo. Dept. of Health, 497 US 261; Jacobson v Massachusetts, 197 US 11; Jehovah’s Witnesses v King County Hosp., 390 US 598; Matter of Long Is. Jewish-Hillside Med. Ctr. v Levitt, 73 Misc 2d 395; Schloendorff v Society of N. Y. Hosp., 211 NY 125; Collins v Davis, 44 Misc 2d 622; Matter of Fosmire v Nicoleau, 75 NY2d 218; Matter of Storar, 52 NY2d 363, 454 US 858; Matter of Westchester County Med. Ctr. [O’Connor], 72 NY2d 517; Cleburne v Cleburne Living Ctr., 473 US 432.) II. The Court below correctly upheld procedural safeguards established in the State of New York to protect the right to medical self-determination. (Rivers v Katz, 67 NY2d 485; Matter of Storar, 52 NY2d 363, 454 US 858; Schloendorff v Society of N. Y. Hosp., 211 NY 125; Matter of Westchester County Med. Ctr. [O’Connor], 72 NY2d 517; People v Eulo, 63 NY2d 341; Cruzan v Director, Mo. Dept. of Health, 497 US 261; Addington v Texas, 441 US 418; In re Winship, 397 US 358; Santosky v Kramer, 455 US 745.) III. The Court below’s decision is consistent with State and Federal policy regarding the administration of nutrition and hydration. (Matter of Westchester County Med. Ctr. [O’Connor], 72 NY2d 517; Matter of Storar, 52 NY2d 363, 454 US 858; People v Eulo, 63 NY2d 341; Matter of Delio v Westchester County Med. Ctr., 129 AD2d 1.)

      Melinda Aikins Bass, White Plains, for Nassau County Health Facilities Association, amicus curiae.

    The Court below was correct in granting Grace Plaza’s motion for partial summary judgment as to liability for services rendered to Mrs. Elbaum. (Matter of Westchester County Med. Ctr. [O’Connor], 72 NY2d 517; Cruzan v Director, Mo. Dept. of Health, 497 US 261; Elbaum v Grace Plaza, 148 AD2d 244; Matter of Delio v

      Westchester County Med. Ctr., 129 AD2d 1; Matter of Fosmire v Nicoleau, 75 NY2d 218; Matter of Wickel v Spellman, 159 AD2d 576; Shapira v United Med. Serv., 15 NY2d 200; Roma v Pembridge, 59 AD2d 627.)

      O’Connell and Aronowitz, Albany (Cornelius D. Murray, Sarah W. Birn and Pamela A. Nichols of counsel), for the New York State Health Facilities Association, Inc., amicus curiae.

    I. Grace Plaza did not know its patient’s wishes prior to the finding of the Court below, and therefore, it did not violate her rights by continuing to feed her prior to such finding. (Grace Plaza v Elbaum, 183 AD2d 10; Matter of Westchester County Med. Ctr. [O’Connor], 72 NY2d 517; People v Eulo, 63 NY2d 341; Matter of Storar, 52 NY2d 363, 454 US 858; Matter of Detzel, 134 AD2d 205; Garzione v Vassar Bros. Hosp., 36 AD2d 390, 30 NY2d 857; Matter of Collins v Davis, 44 Misc 2d 622; Cruzan v Director, Mo. Dept. of Health, 497 US 261; Matter of Fosmire v Nicoleau, 75 NY2d 218.) II. Mr. Elbaum’s claim for battery was properly dismissed. III. A health care facility has no duty to seek a court order to determine an incompetent patient’s wishes regarding termination of life-sustaining treatment. (Cruzan v Director, Mo. Dept. of Health, 497 US 261; Matter of Westchester County Med. Ctr. [O’Connor] 72 NY2d 517.) IV. Holding facilities liable for refusing to terminate life-sustaining treatment to comatose patients in the absence of a valid living will or health care proxy would open a Pandora’s box of litigation. (Matter of Westchester County Med. Ctr. [O’Connor] 72 NY2d 517.)
   OPINION OF THE COURT

Simons, J.

On September 19, 1986 plaintiff Grace Plaza of Great Neck, a long-term care facility, admitted Jean Elbaum as a patient. She had been transferred from North Shore University Hospital following treatment for a stroke. At the time of her admission to Grace Plaza, Mrs. Elbaum was in a persistent vegetative state and had to be fed through a gastrostomy tube. In October of 1987, her husband, defendant here, advised plaintiff by letter that it was his wife’s wish that she be allowed to die naturally should she fall into an "irreversible vegetative state”, and he instructed the nursing home to remove Mrs. Elbaum’s feeding tube. At admission, defendant had signed an agreement undertaking responsibility for his wife’s care but when plaintiff declined to remove the feeding tube, he refused to pay for further treatment. This action by plaintiff followed to recover payment for services rendered to Mrs. Elbaum after October 1987. Supreme Court granted defendant summary judgment but the Appellate Division reversed.

The thrust of the defense is that Mr. Elbaum is not liable because plaintiff breached the admission agreement. Defendant contends that because Mrs. Elbaum had a right under the contract, as well as under statutory and constitutional law, to determine the course of her own treatment and to discontinue life support systems, her continued treatment in contravention of her wishes violated the contract and excused any obligation to pay. In answer, plaintiff states the obvious, that Mrs. Elbaum was unable to state her wishes, that defendant did not present any documentary evidence indicating his wife’s intentions and that he could not make the decision to discontinue life support systems for her (see, Matter of Westchester County Med. Ctr. [O’Connor], 72 NY2d 517; Matter of Storar, 52 NY2d 363, cert denied 454 US 858). Plaintiff asserts that until the courts finally declared what Mrs. Elbaum’s wishes were, it could not know that she did not desire continued nutrition and hydration.

New York law has long recognized the right of competent individuals to decide what happens to their bodies (Schloendorff v Society of N. Y. Hosp., 211 NY 125). That right to personal autonomy is rooted not only in common law but also in the Constitution (Cruzan v Director, Mo. Dept. of Health, 497 US 261, 278-279; Rivers v Katz, 67 NY2d 485, 493) and includes the right to decline even life-preserving treatment (Matter of Fosmire v Nicoleau, 75 NY2d 218, 226; Matter of Westchester County Med. Ctr. [O’Connor], supra; Matter of Eichner [Matter of Storar], 52 NY2d 363, supra). In addition, section 2803-c of New York’s Public Health Law imposes on every nursing home a duty to honor a patient’s decision to refuse treatment. Patients who do not consent and communicate that lack of consent are not liable for any treatment provided in contravention of their wishes (Shapiro v United Med. Serv., 15 NY2d 200).

Defendant contends that the obligation rested on plaintiff to seek a judicial determination of Mrs. Elbaum’s wishes. He correctly points out that her wishes did not come into existence at the moment a court determined what they were; to the contrary and by definition, they existed prior to the onset of her comatose state. There is no principled reason, he asserts, for distinguishing between the rights of competent patients and those of incompetent patients. If Mr. Elbaum is required to pay for services the courts ultimately found Mrs. Elbaum did not desire, her rights have been diminished because she was incompetent. He contends the provider should be required to pay for the undesired care because it denied his wife her legal right to determine the course of her own treatment.

Though decisions in cases such as this may now be facilitated by use of proxies or living wills (see, Public Health Law art 29-C [eff Jan. 18, 1991]), the statutes authorizing such instruments were not in effect at the time in question, and neither side disputes that under the New York law as it then existed, the patient alone had the right to decide on terminating life support systems (see, Matter of Westchester County Med. Ctr. [O’Connor], supra). The law of this State was clear: surrogate decisions are not recognized (Matter of Eichner [Matter of Storar], supra; and see, O’Connor, supra, at 528, see also, concurring opn of Hancock, Jr., J., at 535, and dissenting opn of Simons, J., at 541). Though our rule reserving the right to the patient is more inflexible than that followed by most of our sister States, it is within the power of the individual States to adopt such a rule and also to impose higher standards of proof for determining the wishes of incompetent persons than for determining the wishes of those who are competent (Cruzan v Director, Mo. Dept. of Health, 497 US 261, 287, n 12, supra). Acting on that premise, we have required the families of hopelessly ill patients who are unable to express their wishes with respect to continuing care to establish by clear and convincing evidence that the patient when sentient expressed a clear and settled wish that care should not be continued under the circumstances (see, Matter of Westchester County Med. Ctr. [O’Connor], supra). If a provider harbors some uncertainty on the matter, it acts within the dictates of O’Connor if it refuses to discontinue treatment until the issue is legally determined (see, id., at 531). By doing so, it does not breach a contract of care nor impair its right to be paid for services rendered.

We would but add that in many, perhaps most cases, providers will appropriately consider the family’s evidence on the matter conclusive and honor requests to terminate treatment of a hopelessly ill patient (see, Matter of Eichner [Matter of Storar] supra, at 382). By doing so they not only avoid continued anguish for the family but also avoid imposing on all parties the expense and delay that accompanies legal proceedings to resolve the question. However, judicial resolution of the question may be required if the family members are divided or uncertain in their understanding of the patient’s wishes, if the provider entertains doubts about the state of the law or if it has legitimate professional reservations about the procedure requested. In such cases it may seek a judicial determination of the matter itself or insist that the family do so.

If the provider refuses to act, we find nothing unfair in placing the burden of instituting legal proceedings on those seeking to discontinue treatment. Though the provider has a legal duty to adhere to the known wishes of a patient, a desire to terminate life support does not stand on the same legal footing as a patient’s request for a routine change in treatment. O’Connor instructs decision-makers to "err on the side of life” and makes clear that the burden of establishing an incompetent patient’s desire to die rests squarely with those who are asserting that desire. That burden does not shift simply because a family member has requested termination of life support. If the provider and the family disagree, the family may seek another facility for the patient or it may be able to take the patient into a family member’s home. But if no other recourse is available, it is the family which ultimately is obliged to seek a legal determination establishing the patient’s wishes. As intimates of the patient, the family members have access to the necessary evidence and are in the best position to submit it to a court for consideration.

We have no need to consider what should be the outcome in an action to recover health charges when a provider, in bad faith, refuses to discontinue treatment. None of the courts below found plaintiff acted in bad faith. Considering the uncertain state of the law at the time these events occurred (see, Matter of Delio v Westchester County Med. Ctr., 129 AD2d 1) and plaintiff’s willingness to help find an alternate facility once the dispute over treatment arose, the absence of any finding of bad faith cannot be said to be erroneous as a matter of law. Moreover, the reasonableness of plaintiff’s position is supported by the fact that, after examining the evidence, the trial court and the Appellate Division disagreed on Mrs. Elbaum’s wishes. Indeed, the continued treatment of Mrs. Elbaum was required for much of the period at issue here because plaintiff was subject to a Supreme Court order directing it to continue treatment. Under these circumstances, plaintiff did not breach its contract, and defendant was not excused from paying for his wife’s care.

Finally, we conclude that defendant’s counterclaims for assault and battery and punitive damages were properly dismissed.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Hancock, Jr., J.

(concurring). I concur with the result and with the majority opinion. Indeed, under New York’s "specific subjective intent” rule (see, Matter of Westchester County Med. Ctr. [O’Connor], 72 NY2d 517, 530-531), which the parties were bound to follow, no other outcome is possible. I write separately only to express again my personal conviction (see, O’Connor, supra, at 535-539 [Hancock, Jr., J., concurring]) that "the present New York rule — requiring a factual finding of the patient’s actual intent and precluding the exercise of judgment, in her best interests and on her behalf, by her physician and family, a court or guardian” (id., at 535-536) is unworkable and should receive legislative attention. There is no question that O’Connor (supra), represents the collective view of this Court and, under the rule of stare decisis, is to be followed as the law in New York. I, of course, respect that; by no means in recommending legislative change, do I cast "clouds of doubt on the reliability” (Bellacosa, J., concurring opn, at 21) of the precedent. But, speaking for myself, I believe that the Legislature should now put New York in company with the majority of States and enact legislation to change the existing rule by replacing it with some form of substituted judgment or similar rule (see, id., at 537-538 [Hancock, Jr., J., concurring], and, at 540-541 [Simons, J., dissenting]).

There could be few more compelling demonstrations of the need for legislative change than the history of this prolonged struggle over the continuance of gastrointestinal feeding between a nursing home and the family of an irreversibly comatose and hopelessly ill elderly woman. Had the family of Jean Elbaum, with proper medical advice and safeguards for the rights of the patient, been permitted to make the decision in 1987 that they unanimously believed would represent her choice, the patient would not have been subjected to the continuation of unwanted and purposeless medical procedures. The time-consuming and costly litigation that ends today would have been avoided._

As indicated in Judge Simons’ opinion, a health care facility, when there is any doubt as to what the patient would have intended, cannot be faulted, under the "specific subjective intent” rule for declining "to discontinue treatment until the issue is legally determined” (majority opn, at 17). This is certainly true in cases where, as here, an Assistant District Attorney had announced that if life support were withdrawn from Mrs. Elbaum without court permission, the facility risked criminal prosecution. As aptly noted by the majority at the Appellate Division, in such a situation the facility is placed in a "Catch-22” (see, Grace Plaza v Elbaum, 183 AD2d 10, 16). If it discontinues treatment, it may be prosecuted; if its refusal to do so is held legally objectionable, it faces "loss of payments otherwise owed under contract” (id., at 16).

To be sure, the New York State Legislature, in enacting the health care agent and proxy law (see, Public Health Law art 29-C) has provided a helpful means for ensuring that an incompetent person’s desire to refuse artificial life support may be effectuated. But, as has been observed:

"[Wjhile it is true that the added anguish of legal uncertainty and confusion will now be removed for patients who have created a health care proxy; the law fails to provide any guidance for the families or guardians of individuals who either delay appointing an agent until it is too late or are unaware of the legal necessity for doing so. Unfortunately, in these cases, resort to the judicial system and the specific subjective intent standard it espouses will be inevitable as medical providers, fearing liability for the resulting deaths, will persist in refusing to honor the wishes of families and guardians to terminate life-sustaining procedures without prior court approval” (Note, Health Care Proxies, op. cit., 57 Brooklyn L Rev 145, 176 [1991]).

Bellacosa, J.

(concurring). I concur with Judge Simons’ opinion for the Court. This case could easily be decided fully and properly in one opinion for the Court, and I would prefer to join without separate comment in that one, thorough expression of Judge Simons. Unfortunately, the separate concurrence by Judge Hancock raises a challenge that does not allow me that institutional preference and, instead, compels my separate concurrence, also, to express at least this much of a response reflecting my fundamental disagreement with his approach.

The central problem with the concurrence by Judge Hancock is its engagement of the O’Connor rule (Matter of Westchester County Med. Ctr. [O’Connor], 72 NY2d 517), which is not at issue in this case. That precedent is only the backdrop to this payment-for-services dispute. Thus, to revisit O’Connor here, repudiate its holding, urge its abandonment, and claim that the instant case demonstrates that the rule is "unworkable” (O’Connor, supra, at 536 [Hancock, Jr., J., concurring]), are too bold for me. As a member of the majority of the Court that decided the O’Connor rule, I perceive no warrant for reexamination and renewed joinder of its issue, as a collateral and irrelevant offshoot of the narrow ratio decidendi of this case.

Moreover, two jurisprudentially relevant factors that have intervened since O’Connor was decided in 1988 by the full Court militate strongly against any Judge casting clouds of doubt on the reliability on any recent precedent of the Court in these circumstances. The intervening circumstances are changes in the composition of the Court (see, Simpson v Loehmann, 21 NY2d 305, 314-316 [Breitel, J., concurring]) and a reduction to the bare constitutional minimum of five Judges in this case (NY Const, art VI, § 2 [a]).

A standard jurisprudential principle points to the high desirability for subordination of personal expressions by Judges to long-standing, greater and stronger institutional values. The failure to respect that principle in this case undermines the foundation stones of stare decisis, i.e., legitimacy in the public perception of transcendent institutional process, respect for the wisdom of the antecedent Judges who create precedents — after their own full, fair and robust analytical exposition of competing points of view — and avoidance of persistent reexamination of such settled rules. Chief Judge Cardozo’s summary on one aspect of the subject is instructive: "[T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before” (Cardozo, The Nature of the Judicial Process, reprinted in Selected Writings of Benjamin Nathan Cardozo, at 171 [Margaret E. Hall ed 1947], see also, at 168-183).

Judges Titone, Hancock, Jr., Bellacosa and Smith concur with Judge Simons; Judges Hancock, Jr., and Bellacosa concur in separate opinions; Chief Judge Kaye and Judge Levine taking no part.

Order affirmed, etc.

       In March 1989, while the present action was on appeal, Supreme Court determined, in a separate action instituted by defendant, that there was insufficient evidence that Mrs. Elbaum wanted the feeding tube removed. On August 2, 1989 that determination was reversed by the Appellate Division. It directed that in the event the parties were unable to effectuate Mrs. Elbaum’s transfer to a suitable nursing care facility which would accede to Mrs. Elbaum’s wishes concerning the removal of the gastrointestinal tube within 10 days of the date of the opinion and order, the defendants were required to comply with Mrs. Elbaum’s wishes (see, 148 AD2d 244). Following the Appellate Division’s decision, she was discharged from Grace Plaza and died shortly, thereafter. Supreme Court ruled in favor of Mr. Elbaum in the present action on the basis of that decision sustaining Mrs. Elbaum’s wishes to forego further treatment.

      . The "specific subjective intent” rule has been widely criticized as being overly restrictive (see, e.g., Note, Health Care Proxies: New York’s Attempt to Resolve the Right to Die Dilemma, 57 Brooklyn L Rev 145,-152-159 [1991]; Note, Exercising the Right to Die: A Proposal For New York, 42 Syracuse L Rev 1189, 1229-1238; Comment, In Re Storar: The Right to Die and Incompetent Patients, 43 U Pitt L Rev 1087, 1105; Note, A Patient’s Last Rights — Termination of Medical Care — an Analysis of New York’s In Re Storar, 46 Albany L Rev 1380; Note, In re O’Connor: Making Life-Sustaining Treatment Decisions on Behalf of Incompetent Patients in New York, 53 Albany L Rev 715 [1989]; Matter of Hier, 18 Mass App 200, 464 NE2d 959, review denied 392 Mass 1102, 465 NE2d 261; Conservatorship of Drabick, 200 Cal App 3d 185, 245 Cal Rptr 840).

      . The litigation commenced in May 1988. Grace Plaza instituted this action (the fee action) against Mr. Elbaum for, among other things, breach of contract for his failure to pay the outstanding bill for health care services provided to his wife. A few weeks later, as his wife’s conservator, Mr. Elbaum commenced an action (the injunction action) on his wife’s behalf against Grace Plaza, seeking, among other things, to enjoin Grace Plaza from providing to Jean Elbaum any life-sustaining treatment, including nutrition and hydration, through artificial means.
      In the spring of 1989, after conducting an extensive evidentiary hearing to determine Mrs. Elbaum’s wishes, Supreme Court concluded that Mr. Elbaum had not presented sufficient evidence to demonstrate that Mrs. Elbaum, when competent, had decided not to have her life sustained by artificial means, if she were ever in an irreversibly vegetative state. Also, at about the same time, Supreme Court decided the fee action, granting summary judgment to Grace Plaza and awarding it the payment sought by an order dated June 16, 1989.
      Mr. Elbaum appealed the injunction action to the Appellate Division, which, in August 1989, reversed Supreme Court’s decision, finding "the evidence adduced at the hearing to be sufficiently clear and convincing to establish that * * * [Mrs. Elbaum] repeatedly indicated that she did not wish to be sustained as a 'vegetable’ ” (Elbaum v Grace Plaza, 148 AD2d 244, 254 [Elbaum I]). The Appellate Division granted the injunction, permitting the removal of Mrs. Elbaum’s feeding tube. Grace Plaza applied to the Appellate Division for a stay of the injunction and for leave to appeal to the Court of Appeals, both of which motions were denied on August 21, 1989. Jean Elbaum was transferred to another facility, her feeding tube was removed and she died thereafter.

        Elbaum I prompted the Supreme Court to reverse itself in the fee action to the extent of dismissing Grace Plaza’s complaint for payment. The order of dismissal was entered in February 1990. Grace Plaza appealed, and in September 1992 the Appellate Division vacated the 1990 dismissal order, reinstated Grace Plaza’s complaint and adhered to the June 1989 order, awarding Grace Plaza payment for health services to Jean Elbaum. Mr. Elbaum appealed the order to pay for life-sustaining measures that the Appellate Division had ruled were not what Mrs. Elbaum would have wanted.


author: Chief Judge Kaye.

text:
    [623 NE2d 519, 603 NYS2d 392]
    The People of the State of New York, Respondent, v Jesus Aguilera, Appellant.
    Argued August 31, 1993;
    decided October 14, 1993

      POINTS OF COUNSEL

      Kenneth Finkelman, New York City, and Philip Weinstein for appellant.
    I. Appellant was denied the right to be present at a critical stage of his trial when, immediately before deliberations began, a sworn juror, who repeatedly indicated that she was unsure about her ability to deliberate in the case, and yet was retained as a juror, was extensively questioned outside appellant’s presence. (People v Buford, 69 NY2d 290; People v Rodriguez, 71 NY2d 214; People v Mullen, 44 NY2d 1; People v Ivery, 96 AD2d 712; People v West, 92 AD2d 620, 62 NY2d 708; People v Darby, 75 NY2d 449; People v Torres, 80 NY2d 944; People v Morales, 80 NY2d 450; People v Velasco, 77 NY2d 469.) II. Appellant was improperly denied a Huntley hearing on the basis that a ruling at a Huntley hearing in a different case had collateral estoppel effect where (1) the statements in the two cases were made to different officers at different times and concerned different crimes; (2) the voluntariness of the statements was not litigated at the prior hearing where the key witnesses were never called and appellant did not testify; and (3) a decision at a Huntley hearing is not a final ruling since the same issue can be presented to the jury regardless of the court’s preliminary determination. (People v Reisman, 29 NY2d 278; Owens v Treder, 873 F2d 604; People v Plevy, 52 NY2d 58; People v Goodman, 69 NY2d 32; Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65; People v Fagan, 66 NY2d 815; Michigan v Mosley, 423 US 96; O’Connor v G & R Packing Co., 53 NY2d 278; Bell v Merrifield, 109 NY 202.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Colin Aldrin Fieman and Norman Barclay of counsel), for respondent.
    I. Defendant had no right to attend the brief colloquy with a juror conducted prior to deliberations. (People v Mitchell, 80 NY2d 519; People v Antommarchi, 80 NY2d 247; People v Mullen, 44 NY2d 1; People v Buford, 69 NY2d 290; People v Page, 72 NY2d 69.) II. Defendant’s request for a suppression hearing was properly denied; defendant was not only collaterally estopped from relitigating the admissibility of his statements, but also failed to state any grounds warranting a hearing. (People v Karabi

      nas, 63 NY2d 871; People v Berkowitz, 50 NY2d 333; People v Goodman, 69 NY2d 32; People v Aguilera, 185 AD2d 772; People v Farrell, 59 NY2d 686; People v Acevedo, 69 NY2d 478; Hoag v New Jersey, 356 US 464; People v Plevy, 52 NY2d 58; People v Gruden, 42 NY2d 214.)
   OPINION OF THE COURT

Chief Judge Kaye.

The primary issue on appeal is whether the collateral estoppel doctrine was properly applied to deprive defendant of a pretrial Huntley hearing. We agree with defendant that he should not have been collaterally estopped from litigating the admissibility of his statements, and thus remit for a Huntley hearing. We disagree, however, with defendant’s further contention that his right to be present at trial was abridged when the trial court, with counsel present, spoke with a sworn juror immediately prior to deliberations. Accordingly, a new trial is unnecessary at this time.

I.

By his own admissions — allegedly involuntary — defendant in August 1981 killed a man in the Bronx, and in a separate incident a few days later killed a woman in Manhattan. The present appeal relates to defendant’s conviction for the Manhattan homicide.

The evidence adduced at a Huntley hearing in the Bronx case, which proceeded first, revealed that on February 16, 1982, around noon, defendant was arrested and placed in a holding cell in a Bronx station house. A series of interrogations over the next 20 hours led to defendant’s confessions to the murders. The first substantive interview did not commence until 10:00 p.m., when a bilingual officer, Detective Andrew Lugo, arrived at the station house.

After Lugo advised defendant of his Miranda rights in Spanish, this initial interrogation, which lasted about two hours, proceeded in two stages. Through Lugo, defendant was first questioned about the Bronx killing by Detective Thomas Mullane, who took notes. Lugo read Mullane’s notes to defendant in Spanish, and after stating that he understood, defendant signed the notes. Again through Lugo, defendant was then questioned by Detective Joseph Montuori, a Manhattan detective, about the woman’s death. A separate statement regarding the Manhattan incident was reduced to writing and signed by defendant. Defendant was returned to his cell around midnight and given a sandwich and soda.

A Manhattan Assistant District Attorney (ADA) reported to the Bronx precinct and, commencing at 4:22 a.m. on February 17, conducted a videotaped confession, through a different translator, to the Manhattan murder. Present as observers during the videotape were Montuori and a Bronx ADA. After about a half-hour defendant twice stated that he did not want to continue and the interrogation ceased. Defendant then napped in his cell for about two hours and, upon awakening, was given a roll and coffee.

The final interview, also videotaped, began a few minutes before 7:00 a.m. and concerned the Bronx homicide. This interrogation was conducted by the Bronx ADA in the presence of Mullane.

Defendant was separately indicted for second degree murder and other charges in New York and Bronx Counties. In the Bronx case, the People served a CPL 710.30 notice listing the written and videotaped statements concerning the Bronx murder, and defendant in turn moved to suppress those statements. Accordingly, a Huntley hearing was held in Supreme Court, Bronx County. Two witnesses, Lugo and Mullane, testified. They were not asked any questions relating to Montuori’s interrogation, and neither the Manhattan statement nor the Manhattan videotape was offered into evidence, although the court viewed the videotape.

At the hearing’s conclusion, defense counsel offered essentially two arguments for suppression. He argued that defendant invoked his right to remain silent at the end of the Manhattan videotape, and thus the People did not "scrupulously” honor that right when they subjected defendant to the subsequent Bronx videotape (compare, Michigan v Mosley, 423 US 96). Counsel also argued that the statements were involuntary under all the circumstances, including the long delay between arrest and the first interrogation 10 hours later, incommunicado confinement in close quarters for an extensive period, and lack of sleep, food and bathroom privileges. In passing, counsel additionally suggested that the Miranda warnings on the Bronx videotape were deficient, using the Manhattan tape as a model of proper warnings.

The prosecutor disputed these contentions, arguing that defendant’s election to remain silent at the end of the Manhattan tape did not apply to the Bronx tape because "[i]t was a different D.A., different case, different jurisdiction, totally separate.” The prosecutor additionally noted that defendant was treated fairly and that his statements were made knowingly and voluntarily. Ruling from the bench, the court denied defendant’s suppression motion, concluding that the police procedures were "legally and properly conducted”; defendant was advised of his rights on a number of occasions and knowingly and voluntarily waived them; and "[t]here has been no other evidence introduced which would indicate that there was any coercion or involuntariness on the part of this defendant.”

Later in 1982 defendant was tried and convicted in Supreme Court, Bronx County, for the Bronx murder. That conviction was affirmed by the Appellate Division in 1991 (People v Aguilera, 172 AD2d 234) and a Judge of this Court denied leave to appeal (78 NY2d 1073).

The Manhattan case was brought to trial in New York County in 1984. Prior to trial, defendant requested a Huntley hearing "to determine the constitutionality of the procedures used in connection with the * * * statements allegedly made.” The People opposed defendant’s motion on the ground that he was collaterally estopped by the ruling on his Bronx suppression motion. Agreeing with the People, the motion court ruled that "defendant had the full opportunity to litigate the constitutionality of his statements which includes the statements that the People are going to offer at trial here. The suppression court in Bronx County denied the motion to suppress the defendant’s statements and that ruling is binding upon the defendant.”

When defendant sought reconsideration before the Trial Justice, the court directed him to reargue before the motion court, which adhered to its original ruling. Hence, defendant went to trial in Manhattan without a Huntley hearing. Defendant took the stand in his defense and sought to have the jury reject the confessions as coerced (see, CPL 710.70 [3]; see generally, Sobel, The "Second-Bite” Role of the Jury in the Admissibility of Confessions in New York, 48 Brooklyn L Rev 1 [1981]). The jury deadlocked, reporting in a note that three of its members "have rejected the written and video statements as evidence,” and a mistrial was declared.

Defendant’s retrial was held in 1985. Defendant again testified, alleging that he was periodically beaten by the police in the station house and forced, on three occasions, to take cold showers while fully clothed. Defendant additionally testified that Lugo provided him with a statement written in Spanish —ordering him to memorize it — and struck him on the head with a bat, poked him with a stick, and repeatedly slapped him in the face. According to defendant, the statement made on the Manhattan videotape was not true but was merely a repetition of the statement the detectives forced him to memorize. Defendant acknowledged that he signed the written statement, but claimed that he did not understand English.

Immediately prior to deliberations, a juror, in the presence of the Judge and both counsel, expressed anxiety about her health and having to deliberate late into the night. She declined, however, the Judge’s offer to be excused, explaining that she felt "better just talking among ourselves.” Neither counsel objected to the juror’s continued service, nor did defendant or his counsel object to defendant’s absence from the conference. After brief deliberations, the jury reached a guilty verdict.

On appeal from that conviction, defendant argued that collateral estoppel was erroneously applied to deny him a Huntley hearing in Manhattan, but the Appellate Division disagreed and affirmed (185 AD2d 772). We now modify and remit for a hearing.

II.

Collateral estoppel, or "issue preclusion” (People ex rel. Dowdy v Smith, 48 NY2d 477), is a common-law doctrine rooted in civil litigation that, when applied, prevents a party from relitigating an issue decided against it in a prior proceeding (People v Goodman, 69 NY2d 32, 37; Matter of McGrath v Gold, 36 NY2d 406, 411; Schwartz v Public Adm’r of County of Bronx, 24 NY2d 65, 69). While the principle applies in criminal cases as well (see, e.g., People v Sailor, 65 NY2d 224, 228, cert denied 474 US 982; People v Berkowitz, 50 NY2d 333, 344), in the criminal context "it cannot be applied in quite the same way as in civil cases” (People v Plevy, 52 NY2d 58, 65; see, People v Reisman, 29 NY2d 278, 285, cert denied 405 US 1041). We have actually employed the doctrine only once in a criminal case — to preclude the People from relitigating the fact of defendant’s alleged presence at a crime scene (People v Acevedo, 69 NY2d 478).

As collateral estoppel has evolved in our criminal jurisprudence, the formal prerequisites are identity of parties; identity of issues; a final and valid prior judgment; and a full and fair opportunity to litigate the prior determination (People v Goodman, 69 NY2d 32, 38 [collecting cases]). These factors, however, are not to be applied "mechanically” because "countervailing policies * * * may at times outweigh the otherwise sound reasons for preventing repetitive litigation to the greatest extent possible” (People v Berkowitz, 50 NY2d, at 344; see also, People v Acevedo, 69 NY2d, at 485 ["for policy reasons collateral estoppel is not as liberally applied in criminal prosecutions as in civil actions”]; People v Fagan, 66 NY2d 815, 816).

Underlying the collateral estoppel doctrine is a desire to conserve the time and resources of the court and the parties, and to avoid possible inconsistent determinations (Hoag v New Jersey, 356 US 464, 470; People v Acevedo, 69 NY2d, at 485; People v Plevy, 52 NY2d, at 64). The doctrine also assuages the "long-recognized equitable reaction” against allowing a party to relitigate issues already decided adversely to it (People v Lo Cicero, 14 NY2d 374, 380). Thus, in civil actions, where the primary societal interest is in the peaceful, expeditious and impartial settlement of disputes, we might accept even an occasional erroneous result as preclusive to serve other significant societal interests (see, People v Berkowitz, 50 NY2d, at 345).

By contrast, in criminal prosecutions, where defendant’s liberty interest is at stake, the preeminent concern is to reach the correct result (People v Goodman, 69 NY2d, at 37; People v Sailor, 65 NY2d, at 228), and hence the policies underlying issue preclusion are different. For this reason we have been generally less receptive to estoppel in criminal cases (see, e.g., People v Sailor, 65 NY2d, at 228-229 [prosecution not estopped by prior persistent felony offender proceeding]; People v Plevy, 52 NY2d 58 [collateral estoppel erroneously applied to deprive defendant of suppression hearing]; People v Berkowitz, 50 NY2d 333 [defendant could not estop prosecution based on codefendant’s acquittal]; People v Reisman, 29 NY2d 278 [People not estopped by result in out-of-State suppression hearing]; People v Lo Cicero, 14 NY2d 374 [People not es-topped by Federal prosecution]).

Historically, courts have tended to favor defendants in the application of collateral estoppel because of concerns for due process, double jeopardy, the right to a jury trial, fundamental fairness and preventing undue harassment (see, e.g, Ashe v Swenson, 397 US 436 [principles of double jeopardy mandate collateral estoppel against the State under the circumstances]; People v Goodman, 69 NY2d, at 38 [noting that collateral estoppel is used to "prevent the harassment of defendants”]; People v Acevedo, 69 NY2d, at 485 [citing "fairness to the defendant” as a principle underlying collateral estoppel]). Indeed, it has been argued that issue preclusion should never be employed against a criminal defendant at any stage of the case (see, People v Plevy, 52 NY2d, at 60-61; but see, People v Owens, 102 Ill 2d 145, 151-152, 464 NE2d 252, 255 [estopping defendant], cert denied 469 US 963; Comment, The Use of Collateral Estoppel Against the Accused, 69 Colum L Rev 515, 523 [1969] [concluding that "an absolute prohibition on the use of collateral estoppel against the accused seems unjustified”]), a question we did not resolve in Plevy and do not reach today, inasmuch as we find the doctrine inapplicable here in any event.

III.

Applying these principles to the present appeal, we first address defendant’s contention that collateral estoppel could not apply to the Bronx Huntley determination because it was not a final judgment, as a defendant may always relitigate the issue of voluntariness before the jury (CPL 710.70 [3]; compare, Matter of McGrath v Gold, 36 NY2d, at 412 [finality lacking in dismissal of indictment, in part because suppression order was interlocutory]). Here, however, upon defendant’s conviction in the Bronx — which predated the use of collateral estoppel against him in Manhattan — the Huntley ruling obtained the requisite finality (see, People v Plevy, 52 NY2d, at 64). Accordingly, lack of finality was no bar to collateral estoppel here.

As to identity of issues, however, we agree with defendant that application of collateral estoppel to bar consideration of all possible Huntley issues in Manhattan swept too broadly. The Bronx CPL 710.30 notice was limited to the Bronx written and videotaped statements, and thus did not inform defendant that the Manhattan statements were also at issue. Indeed, it is evident from the record that neither side focused on the Manhattan statements. For example, no one present when the Manhattan tape was made testified; Detective Montuori, who questioned defendant about the Manhattan slaying and whose notes defendant signed, was not a witness; nor was the Montuori interrogation explored with the two witnesses who did testify. Moreover, there was no testimony relating to the circumstances under which defendant signed Montuori’s notes, or even that the notes were translated. In fact, the Manhattan written statement was not admitted into evidence. Also significant is that defense counsel suggested that the Miranda warnings on the Manhattan tape were entirely proper in contrast to the Bronx tape, an argument that likely would not have been made had the Manhattan statements themselves been at issue.

Defendant’s Manhattan motion sought a hearing "to determine the constitutionality of the procedures used in connection with the * * * statements allegedly made,” which is broad enough to cover a variety of issues relating to the Manhattan statements not considered in the Bronx hearing, including Miranda. Thus, defendant is entitled to a Huntley hearing to litigate his contentions that the Manhattan statements should be suppressed.

Having decided that defendant is entitled to a Huntley hearing, we must consider whether defendant will be permitted to relitigate one claim for which there was issue identity— whether defendant’s statements were the product of coercion. When he argued that an over-all coercive atmosphere led to his confessions to the Bronx murder, defendant necessarily put in issue the alleged coercion surrounding the Manhattan statements. It is plain, therefore, that there was issue identity insofar as coercion is alleged.

Our determination that collateral estoppel should not apply turns on the requirement that the party opposing estoppel must have had a "full and fair opportunity” to litigate the prior result (see, People v Goodman, 69 NY2d, at 38). In People v Plevy (52 NY2d, at 65) we recognized that defendant’s testimony at a suppression hearing is important proof that may well alter the result, especially when police testimony is not otherwise contradicted. We observed, moreover, that it was not dispositive that defendant "could have testified at the first suppression hearing, and thus had the opportunity to fully litigate the issue at that time, in the sense that he had a legal right to do so” (id., at 65). Instead, the court "must also consider the 'realities of the [prior] litigation’, including the context and other circumstances which, although not legal impediments, may have had the practical effect of discouraging or deterring a party from fully litigating the determination which is now asserted against him” (id., at 65; citations omitted).

Plevy is in many respects similar to the present case. Defendant was indicted for murder in Kings County and burglary in Nassau County. An issue common to defendant’s suppression motions in both cases was whether he consented to police entry into his home. Defendant did not testify at the Kings County suppression hearing, and the court determined the consent issue adverse to defendant. Defendant was thereafter foreclosed from relitigating the issue in the burglary case, despite offering to testify on the issue. In holding that defendant was erroneously estopped, we noted: "Constitutionally the accused has the right to testify or not to testify at any criminal action or proceeding. The doctrine of collateral estoppel cannot be said to be superior to those rights, particularly when it operates to preclude the court from considering evidence which was not available to the court at the prior proceeding, and which if considered here would have involved a minimal expenditure of time in a hearing already under way.” (People v Plevy, 52 NY2d, at 66.)

As in Plevy, we conclude that defendant did not have a full and fair opportunity to litigate for purposes of collateral estoppel. Aside from the fear of disclosing one’s case at the outset and the possibility that hearing testimony will be used against defendant at trial (see, People v Plevy, 52 NY2d, at 66), in the present case defendant might have been deterred from testifying in the Bronx because he had an argument for suppression that did not depend on his testimony: at the conclusion of the Manhattan videotape, he invoked his right to remain silent, which he claimed attached to the subsequent Bronx videotape.

Permitting defendant to relitigate the coercion issue by offering his own testimony will involve a "minimal expenditure of time in a hearing already under way” (People v Plevy, 52 NY2d, at 66), and thus there is no question that collateral estoppel should give way on the coercion issue. Indeed, after defendant’s testimony on the point at the first Manhattan trial the jury deadlocked when threé jurors refused to consider the statements as evidence.

IV.

As a basis for a new trial, defendant contends that his right to be present at all material stages of trial was violated when the trial court, with counsel present, spoke with a sworn juror just prior to deliberations. That contention is wholly meritless. Inasmuch as defendant was not excluded from a core segment of trial, reversal is mandated only if defendant’s absence might have had an effect on the opportunity to defend (see, People v Morales, 80 NY2d 450, 456), which has not been established on this record (see, People v Torres, 80 NY2d 944, 945; People v Mullen, 44 NY2d 1, 5-6; see also, People v Darby, 75 NY2d 449, 453). Moreover, although defendant argues that had he been present, he could have evaluated the juror to determine for himself whether to object to her continued service (compare, People v Antommarchi, 80 NY2d 247 [presence right at jury selection]), at that stage of trial the decision to move for the juror’s disqualification was necessarily delegated to counsel (see, People v Rosen, 81 NY2d 237, 244), who chose not to object.

V.

Thus, the case should be remitted to Supreme Court, New York County, for a hearing in connection with defendant’s motion to suppress statements. If, after that hearing, the court concludes that suppression is appropriate, further proceedings, including a new trial, should be had as the circumstances may warrant. If the court concludes that suppression is not appropriate, the judgment should be amended to reflect that result.

Accordingly, the order of the Appellate Division should be modified by remitting to Supreme Court, New York County, for further proceedings in accordance with this opinion and, as so modified, affirmed.

Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith concur; Judge Levine taking no part.

Order modified and case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

       Defendant does not urge that the judgment lacks finality because it had yet to be reviewed on appeal (see generally, Annotation, Judgment As Res Judicata Pending Appeal, 9 ALR2d 984; compare, Parkhurst v Berdell, 110 NY 386, 392), and thus we express no view on the issue.


text:
    [623 NE2d 526, 603 NYS2d 399]
    In the Matter of Teachers Insurance and Annuity Association of America, Appellant, v City of New York et al., Respondents.
    Argued September 1, 1993;
    decided October 19, 1993

      POINTS OF COUNSEL

      Fried, Frank, Harris, Shriver & Jacobson, New York City (Marc P. Cherno, Debra M. Torres and James L. Brochin of counsel), for appellant.
    I. The court below improperly interpreted the Landmarks Law to apply to interior commercial space that does not possess a distinctively public character. (FGL & L Prop. Corp. v City of Rye, 66 NY2d 111; Matter of Allen v Adami, 39 NY2d 275; Matter of Exxon Corp. v Board of Stds. & Appeals, 128 AD2d 289; Matter of De Sena v Board of Zoning Appeals, 45 NY2d 105; Matter of Society for Ethical Culture v Spatt, 68 AD2d 112, 51 NY2d 449; Beacway Operating Corp. v Concert Arts Socy., 123 Misc 2d 452; Penn Cent. Transp. Co. v New York City, 438 US 104; Matter of Manhattan Club v Landmarks Preservation Commn., 51 Misc 2d 556; Shubert Org. v Landmarks Preservation Commn., 166 AD2d 115, 78 NY2d 1006, 79 NY2d 751; City of New York v Buckley, 260 App Div 19, 285 NY 797.) II. The court below’s approval of the designation of the "Four Seasons restaurant” limits this multipurpose commercial interior to restaurant use and is, therefore, improper. (Vernon Park Realty v City of Mount Vernon, 307 NY 493; French Investing Co. v City of New York, 39 NY2d 587, 429 US 990; Matter of Dexter v Town Bd., 36 NY2d 102; FGL & L Prop. Corp. v City of Rye, 66 NY2d 111.) III. The court below improperly construed the Landmarks Law to cover personal property. (Matter of Moran Towing & Transp. Co. v New York State Tax Commn., 72 NY2d 166; Matter of Metromedia, Inc. v Tax Commn., 60 NY2d 85; Ward v Kilpatrick, 85 NY 413; Matter of County of Nassau [Lido Beach Sewage Collection Dist], 40 Misc 2d 384; Gurwitz v State of New York, 27 Misc 2d 731, 15 AD2d 712; Cahn v Hewsey, 8 Misc 384; Cosgrove v Troescher, 62 App Div 123; Prudential Ins. Co. v Sanford Realty Estate Corp., 157 Misc 563, 246 App Div 567, 680; Shelton Holding Corp. v 150 E. Forty-Eighth St. Corp., 264 NY 339.)

      O. Peter Sherwood, Corporation Counsel of New York City (Elizabeth S. Natrella, Leonard Koerner, Pamela Seider Dolgow and Dorothy Miner of counsel), for respondents.
    The designation of the Four Seasons interior space as an interior landmark was rational on this record and comported with the law. (Lutheran Church v City of New York, 35 NY2d 121; Matter of Society for Ethical Culture v Spatt, 68 AD2d 112, 51 NY2d 449; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Penn Cent. Transp. Co. v City of New York, 52 NY2d 324, 438 US 104, 439 US 883; Rectors, Wardens, & Members of Vestry of St. Bartholomew’s Church v City of New York, 914 F2d 348; Shubert Org. v Landmarks Preservation Commn., 166 AD2d 115, 78 NY2d 1006, 79 NY2d 751; Seawall Assocs. v City of New York, 74 NY2d 92, cert denied sub nom. Wilkerson v Seawall Assocs., 493 US 976; Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 479 US 985; Sega v State of New York, 60 NY2d 183; New York State Club Assn. v City of New York, 69 NY2d 211, 487 US 1.)

      Douglas N. Cogen, New York City, for Municipal Art Society of New York, Inc., amicus curiae.

    I. Petitioner’s reading of the Landmarks Law is not supported by its plain language and is unworkable. (People v McNamara, 78 NY2d 626; Matter of Elmsfort Transp. Corp. v Schuler, 63 AD2d 1036.) II. Petitioner should not have been permitted to maintain this action for the extraordinary writ of prohibition and a declaratory judgment. It cannot show serious harm or the inadequacy of other remedies. (Matter of Gimprich v Board of Educ., 306 NY 401; La Rocca v Lane, 37 NY2d 575, 424 US 968; Matter of Levine v State Div. of Hous. & Community Renewal, 126 Misc 2d 531; Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 479 US 985; Matter of Committee to Save Beacon Theatre v City of New York, 146 AD2d 397; American Ins. Assn. v Chu, 64 NY2d 379, 474 US 803; Mason v 12/12 Realty Assocs., 158 AD2d 334; Tri-State Sol-Aire Corp. v County of Nassau, 156 AD2d 555.)

      David A. Doheny, Elizabeth S. Merritt and Alexandra E. Acosta, of the District of Columbia Bar, admitted pro hac vice, for National Trust for Historic Preservation in the United States, amicus curiae.

    I. In the national context, New York City’s ordinance authorizing interior landmark designation is well within the mainstream of preservation ordinances. II. Designation of the Four Seasons interior was within the Commission’s explicit statutory authority. (Weinberg v Barry, 634 F Supp 86; Shubert Org. v Landmarks Preservation Commn., 166 AD2d 115, 78 NY2d 1006, 79 NY2d 751; Committee to Save Beacon Theatre v City of New York, 146 AD2d 397.) III. The Real Estate Board’s argument that "segregable interior space” should be exempt from the Landmarks Law is contrary to United States Supreme Court precedent. (Penn Cent. Transp. Co. v New York City, 438 US 104; Keyston Bituminous Coal Assn. v DeBenedictus, 480 US 470.)

      Stroock & Stroock & Lavan, New York City (Joseph L. Forstadt and Adam S. Grace of counsel), for the Real Estate Board of New York, Inc., amicus curiae.

    I. The misapplication of the Landmarks Law such as has occurred in the present case will place unfair burdens on commercial property owners. (Shubert Org. v Landmarks Preservation Commn., 166 AD2d 115, 78 NY2d 1006, 79 NY2d 751.) II. Commercial spaces such as the Four Seasons restaurant are not eligible for landmark status. (Matter of Allen v Adami, 39 NY2d 275; Penn Cent. Transp. Co. v City of New York, 42 NY2d 324, 438 US 104.) III. The failure of the hardship formula to provide relief to segregable commercial interiors such as the Four Seasons demonstrates that the Landmarks Law was not intended to apply to such spaces. (Lutheran Church v City of New York, 35 NY2d 121; Matter of Trustees of Sailors’ Snug Harbor v Platt, 29 AD2d 376; Seawall Assocs. v City of New York, 74 NY2d 92, cert denied sub nom. Wilkerson v Seawall Assocs., 493 US 976.)
   OPINION OF THE COURT

Chief Judge Kaye.

At issue on this appeal is the statutory authority of the Landmarks Preservation Commission to landmark the interior of the Four Seasons restaurant in Manhattan.

Appellant, Teachers Insurance and Annuity Association of America (TIAA), owner of the building that houses the restaurant, argues that the Commission has exceeded its authority under the New York City Landmarks Law in that the requisite public openness is lacking; the designation impermissibly restricts future use of the space; and even if valid, the designation improperly includes certain interior furnishings. Concluding that these arguments lack merit, we affirm the Appellate Division order dismissing appellant’s challenges.

I.

In 1959, the Four Seasons restaurant opened on the first two floors of the newly constructed Seagram Building on Park Avenue in New York City. The building, designed by the German architectural master Ludwig Mies van der Rohe, is the sole example of his work in New York City. The celebrated American architect Philip Johnson, who assisted Mies van der Rohe in the building design, created the restaurant interior. Both the building exterior and the restaurant interior — which reflects and complements the building’s modular design and architectural innovation — have been acclaimed as quintessential expressions of the International style. No one disputes their special historical and aesthetic interest.

When TIAA purchased the building from Joseph E. Seagram & Sons in 1980, the portions of the ground and first floors occupied by the restaurant were subject to a 25-year lease that will expire in 1999. By agreement with Seagram, appellant must use its best efforts to continue to lease the space for restaurant use. If it cannot, Seagram has an option until 2025 to find a suitable restaurant tenant. TIAA also agreed to propose the building for landmarking when it became eligible.

In December 1987, appellant proposed the designation of the Seagram Building, including the building lobby and outdoor plaza. Prior to the public hearings before the Commission, and without consulting appellant, the restaurant operators themselves proposed to the Commission that the restaurant interior also be considered for landmark status. The Commission then added that proposal to the calendar and in May and July 1988 conducted public hearings.

Dozens of witnesses and letters before the Commission from prominent architects, artists, community leaders and others supported the designation of the Four Seasons interior. TIAA, several commercial real estate interests and architect Paul Byard opposed the designation.

In October 1989, the Commission unanimously landmarked the building, outdoor plaza, building lobby and the Four Seasons interior. Noting the particular architectural features of the restaurant, including its distinctive design, integral relation to the building architecture and innovative use of new technologies, the Commission found that the restaurant interior "has a special character, special historical and aesthetic interest and value as part of the development, heritage and cultural characteristics of New York City” and that "the Interior is one which is customarily open and accessible to the public, and to which the public is customarily invited.” The restaurant designation accords landmark status to the entrance lobby, Grill Room, Pool Room and balcony dining rooms, and includes the marble pool, walnut bar, wall surfaces, floor surfaces, ceiling surfaces, doors, railings, metal draperies and two hanging metal sculptures commissioned by Johnson from the artist. The Board of Estimate, after its own public hearings, approved those designations.

Appellant sought to vacate the restaurant designation by a combined CPLR article 78 proceeding challenging the Commission’s statutory authority and plenary action alleging an unconstitutional taking and impairment of free expression. The trial court dismissed the proceeding in its entirety, and the Appellate Division affirmed. In this Court, TIAA limits its appeal to the statutory grounds, no argument having been made regarding the dismissal of its constitutional challenges. We now affirm.

II.

Responding to the loss of a number of its more significant buildings, New York City in 1965 enacted its first historic preservation statute (Administrative Code of City of NY ch 8-A [now tit 25, ch 3]; see, Pyke, Landmark Preservation, at 15 [1969]) for the "protection, enhancement, perpetuation and use of improvements and landscape features of special character or special historical or aesthetic interest or value” (Administrative Code § 25-301 [b]). In 1973, the Landmarks Law was amended to expand the Commission’s jurisdiction by authorizing designation of interior landmarks and by charging the Commission with promoting the use of interior landmarks "for the education, pleasure and welfare of the people of the city” (Administrative Code § 25-301 [b] [g]). This case presents our first opportunity to review application of the Landmarks Law to an interior landmark designation, although the appeal is limited to the Commission’s statutory authority, in three particular respects, to landmark the Four Seasons interior.

A landmark designation is an administrative determination, ordinarily reviewable under article 78, that must be upheld if it has support in the record, a reasonable basis in law, and is not arbitrary or capricious (Lutheran Church v City of New York, 35 NY2d 121, 128, n 2).

Where interpretation of statutory terms is involved, two standards of review are applicable. As the agency charged with implementing the Landmarks Law, the Commission is presumed to have developed an expertise that requires us to accept its interpretation of that law if not unreasonable (see, Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459). Such deference to the Commission, however, is not required where the question is one of pure legal interpretation (see, Matter of Moran Towing & Transp. Co. v New York State Tax Commn., 72 NY2d 166, 173). The distinction between these standards is perhaps best understood by reference to the statutory term "special historical or aesthetic interest” — as to which courts should defer to the expertise of the Commission — and the jurisdictional predicate "customarily open or accessible to the public” — a matter of pure legal interpretation as to which no deference is required.

Public Openness Requirement

The Commission is authorized to landmark an interior 30 or more years old that is "customarily open or accessible to the public, or to which the public is customarily invited, and which has a special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation” (Administrative Code § 25-302 [m]; § 25-303 [a] [2]). We agree with appellant that the meaning of customary public openness — essential to the Commission’s jurisdiction — is a law question for the courts rather than one of administrative expertise.

TIAA’s principal argument is that the Landmarks Law must be read to require that interiors subject to landmarking have a "distinctively public character” to bring them within the Commission’s jurisdiction. An "ordinary commercial space” that has not been dedicated to public use, TIAA argues, cannot be landmarked over the owner’s objection.

At the outset, we note that nothing in the Landmarks Law requires an owner’s consent as a prerequisite to designation. While other jurisdictions have required owner consent (see, 11 Boasberg, Coughlin and Miller, Historic Preservation Law and Taxation § 7.03 [7] [b] [iv]), the New York City legislature, significantly, has not. Administrative Code § 25-313 (a) provides only that the owner is entitled to notice of the public hearing, and indeed, failure to give such notice does not invalidate a designation. So long as the statutory criteria are satisfied, the Commission may make a valid designation over an owner’s objection (see, Pyke, Landmark Preservation, at 20-22 [1969]).

Underscoring the burdens a landmark designation places on property owners (see, e.g., Administrative Code §§ 25-305 — 25-311, 25-317; 11 Boasberg, Coughlin and Miller, Historic Preservation Law and Taxation § 7.03 [8]-[ll]), and therefore urging "strict construction” of the statute, TIAA asks us to distinguish between a restaurant and "inherently” public interiors, such as railroad stations, lobbies and theaters, which are intrinsically dedicated to public use by their public assemblage purpose. Appellant asserts that the Four Seasons interior has no distinctively public purpose, pointing out that Seagram had considered such uses as an automobile showroom and art gallery before outfitting the space to accommodate the restaurant, and that permitting designations such as this will adversely impact the real estate and economy of New York City.

We reject TIAA’s asserted distinction, which on its face is a difficult one. No less than a theater, which generally requires a ticket for public entry, a restaurant by the very nature of its business invites the general public to enter (see, Weinberg v Barry, 634 F Supp 86, 93 [D DC]). But even if we might agree that it would be prudent policy to adopt the distinction appellant suggests, the argument suffers a more fundamental flaw: the proffered distinction is nowhere part of the unambiguous statute we are obliged to enforce as the City legislature has written it (see, e.g., Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 674-675).

The threshold requirement prescribed by the legislature is that an interior be "customarily open or accessible to the public, or [a place] to which the public is customarily invited.” The crux of this provision is customary openness, accessibility, invitation to the public — words that are readily understood to require usual, ordinary or habitual (rather than rare or occasional) availability to the general public. The legislature did not also specify that an interior must be intended as a place of assemblage — adding an additional dimension to customary public availability — as it might well have done if that were the intention. Consistent with the letter and purpose of the Landmarks Law, the relevant inquiry thus becomes an objective one of whether the interior is habitually open or accessible to the public at large. An interior to which the general public is usually invited, regardless of its intended purpose, falls within the ambit of the statute.

TIAA argues, additionally, that although currently open to restaurant customers, the restaurant interior should be beyond the Commission’s jurisdiction because it can be adapted to private use in the future. The simple answer is that any structure, even a railroad station, can be converted to private use in the future; that potential cannot preclude the land-marking of appropriate interiors (see, Note, American Heritage at Stake: The Government’s Vital Interest in Interior Landmark Designations, 25 New Eng L Rev 291, 321-322 [1990]).

Applying this interpretation, unquestionably the Commission’s determination that the Four Seasons "customarily” invites the public is not arbitrary or capricious. The restaurant interior having been provided for the enjoyment of New York City’s residents and visitors since it opened more than three decades ago, the Commission now may seek to preserve it for others (see, Administrative Code § 25-301 [b]).

Future Use Restriction

The Commission is expressly forbidden to use its powers "to regulate and restrict the locations of trades and industries or location of buildings designed for specific uses” (Administrative Code § 25-304 [a]). This limitation on the Commission’s jurisdiction has been read as a prohibition against the use of landmark designations for zoning purposes (see, Shubert Org. v Landmarks Preservation Commn., 166 AD2d 115, 121, appeal dismissed 78 NY2d 1006, lv denied 79 NY2d 751, cert denied — US —, 112 S Ct 2289).

Appellant’s argument for a limitation on the Commission’s jurisdiction is a somewhat different one: that the Commission has violated the statutory proscription by including in the designation items that purportedly render the space unusable for any other purpose, pointing in particular to the walnut bar and marble pool. Whether or not the statute should be so read, we agree with the conclusion reached by the Appellate Division that TIAA did not establish its contention that the space will be unusable for other purposes.

Designated Interior Items

Even if the designation was authorized, appellant argues, items appurtenant to the interior of the restaurant cannot properly be included in the designation. We find no such limitation in the Landmarks Law.

The City does not challenge appellant’s assertion that the Commission’s jurisdiction over interior landmark designations extends only to "interior architectural features,” defined as the "architectural style, design, general arrangement and components of an interior, including, but not limited to, the kind, color and texture of the building material and the type and style of all windows, doors, lights, signs and other fixtures appurtenant to such interior” (Administrative Code § 25-302 [l]). Emphasizing the word "other,” appellant argues that the Commission’s jurisdiction extends only to items that qualify as fixtures at common law, and it specifically challenges designation of the hanging sculptures, walnut bar, metal draperies, decorative metal railings and ceiling panels.

We need not pass on whether the designated items are fixtures because the Landmarks Law does not limit the Commission’s jurisdiction to fixtures. The language of the statute unambiguously states that interior architectural features are composed of the "architectural style, design, general arrangement and components of an interior” (Administrative Code § 25-302 [l]). We agree with the Appellate Division’s construction of the statute that, in authorizing the Commission to designate items appurtenant to an interior, the legislation does not distinguish between personalty and realty.

We defer to the expertise of the Commission in its application of the provision (see, Kurcsics, 49 NY2d, at 459). The Commission found that each of the designated items was created and installed at Philip Johnson’s direction as an integral element of the design of the interior. Other items specially created or chosen for the restaurant, although mentioned in the designation report, were not designated by the Commission. As demonstrated by the items chosen for designation, the Commission has drawn a rational distinction between items integral to the design of the interior space, and items that merely enhance the restaurant’s ambiance. We conclude that the Commission’s interpretation is not unreasonable and thus that the Commission did not exceed its authority by including the designated items. Moreover, we agree with the Appellate Division that the Commission’s decision to include the designated items is supported by the record and not arbitrary or capricious and thus was within the proper exercise of the Commission’s discretion (see, Lutheran Church, 35 NY2d, at 128, n 2).

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

Judges Simons, Titone, Hancock, Jr., and Bellacosa concur; Judges Smith and Levine taking no part.

Order affirmed, with costs.

      . Appellant alternatively urges consideration of the legislative history, but points to no legislative history establishing its suggested distinction. Moreover, because the Landmarks Law is clear on its face, we need not look to the agency’s prior practice in applying the statute (see, e.g., Doctors Council, 71 NY2d, at 674-675; see also, McKinney’s Cons Laws of NY, Book 1, Statutes §§ 128, 129).

      . Appellant also protests designation of the wine cellar visible from the restaurant lobby, but the wine cellar is not included in the actual designation.