text:
    Marcus Associates, Inc., Appellant, v Town of Huntington et al., Respondents.
    Submitted September 11, 1978;
    decided October 26, 1978

      POINTS OF COUNSEL

      Joseph Stern for appellant.
    I. The zoning amendment adopted by the town board restricting the occupancy of buildings in an 1-1 industrial district to not more than three permitted uses, no more than three occupants, and each separate use to no less than 20,000 square feet of building area is ultra vires and void. (Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359; Matter of Oppenheimer v Kraus, 221 App Div 773; Incorporated Vil. of Brookville v Paulgene Realty Corp., 24 Misc 2d 790, 14 AD2d 575; De Sena v Guide, 24 AD2d 165; Westward Forest Estates v Village of South Nyack, 23 NY2d 424.) II. The constraints imposed by the zoning amendment bear no reasonable relation to the public health, safety, morals on the general welfare of the community, and are therefore arbitrary, discriminatory, capricious and unreasonable. (De Sena v Guide, 24 AD2d 165; Shepard v Village of Skaneateles, 300 NY 115.) III. Marcus has met any burden imposed upon it of establishing the invalidity of the zoning amendment adopted by the town board. (Mary Chess, Inc. v City of Glen Cove, 18 NY2d 205; De Sena v Guide, 24 AD2d 165.)

      Ronald Glickman, Town Attorney (Frank J. Mack of counsel), for respondents.
    I. Restatement of fundamental principles of substantive law involved in this appeal. (Shepard v Village of Skaneateles, 300 NY 115; Wiggins v Town of Somers, 4 NY2d 215; Koff v Incorporated Vil. of Flower Hill, 29 AD2d 655, 28 NY2d 694; Lighthouse Shores v Town of Islip, 41 NY2d 7; Levitt v Incorporated Vil. of Sands Point, 6 NY2d 269; Williams v Town of Oyster Bay, 32 NY2d 78; Durenheim, Inc. v Town Bd. of Town of Hempstead, 33 NY2d 468; Village of Belle Terre v Boraas, 416 US 1; Maldini v Ambro, 36 NY2d 481.) II. Plaintiff has failed to carry its burden of proving beyond a reasonable doubt that the amendment of February 25, 1975 is ultra vires or otherwise unconstitutional. (Pondfield Rd. Co. v Village of Bronxville, 1 AD2d 897, 1 NY2d 841; 154 East Park Ave. Corp. v City of Long Beach, 76 Misc 2d 445, 49 AD2d 949; Solow v City of New York, 49 AD2d 414; Gluckman v Incorporated Vil. of Great Neck, 33 AD2d 992; McCabe v Town of Oyster Bay, 24 Misc 2d 840, 13 AD2d 979; Plymouth Bldrs. v Village of Linderhurst, 284 App Div 895; Fra-Nat Bldrs. v Town of Oyster Bay, 16 Misc 2d 851; McGowan v Cohalan, 41 NY2d 434; Louisville Gas Co. v Coleman, 277 US 32; Town of Hempstead v Goldblatt, 9 NY2d 101.) III. Conversely, the amendment of February 25, 1975, being rationally related to the achievement of proper governmental objectives, is valid and constitutional. (Matter of Albert Simon, Inc. v Myerson, 36 NY2d 300; Town of Pompey v Parker, 53 AD2d 125; Janas v Town Bd. of Town of Fleming, 51 AD2d 473; Matter of Wulfsohn v Burden, 241 NY 288; Matter of Garret Co. v Guldenschuh, 49 AD2d 800; Berenson v Town of New Castle, 38 NY2d 102.)
   OPINION OF THE COURT

Cooke, J.

We hold that the challenged zoning ordinance amendment of the Town of Huntington is valid and therefore affirm the ruling of the Appellate Division.

Plaintiff Marcus Associates is the owner of four undeveloped building plots in the Town of Huntington, Suffolk County. These four lots, together with eight others not relevant to the present litigation, were acquired by Marcus in 1967 and 1968. At that time, the property was zoned R-40 and was thus restricted to one acre residential use. Upon application of Marcus and other local property owners, the town board rezoned the subject land, placing it in an 1-1 light industrial district. Subsequently, on February 25, 1975, defendant amended the use restrictions applicable to 1-1 districts, adding the following limitations: "A building or premises shall be used for not more than 3 permitted uses and by not more than three occupants. Each separate use shall occupy no less than 20,000 square feet of building gross floor area” (Huntington Town Code, § 62-6.1, subd 10).

Desiring to construct a building containing more than the permissible number of uses, plaintiff commenced this action to obtain a declaration of the zoning amendment’s invalidity. Following trial, Special Term concluded that plaintiff had not carried its burden of proving the ordinance unconstitutional beyond a reasonable doubt. A sharply divided Appellate Division upheld the determination of Special Term (57 AD2d 116). Plaintiff now appeals to this court, urging that enactment of the subject amendment was beyond the town’s zoning power and violative of the State and Federal Constitutions.

That a legislative enactment will be presumed constitutional is an elementary but significant principle of law. The strength of this presumption, sometimes underestimated, has been repeatedly underscored by the courts of this State (see, e.g., Wiggins v Town of Somers, 4 NY2d 215, 218; 1 Anderson, New York Zoning Law and Practice, § 2.11, p 54). In this vein, we recently stated: "The exceedingly strong presumption of constitutionality applies not only to enactments of the Legislature but to ordinances of municipalities as well. While this presumption is rebuttable, unconstitutionality must be demonstrated beyond a reasonable doubt and only as a last resort should courts strike down legislation on the ground of unconstitutionality” (Lighthouse Shores v Town of lslip, 41 NY2d 7, 11). It is against this backdrop that the ordinance must be evaluated.

To withstand judicial scrutiny, a municipality’s exercise of its zoning power "must be founded upon a legislative delegation to so proceed” (Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359, 370). Such a legislative delegation is found in section 261 of the Town Law which empowers the town board, "[f]or the purpose of promoting the health, safety, morals, or the general welfare of the community, * * * to regulate and restrict * * * the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes”. We find the Town of Huntington amendment to be well within the ambit of this broad grant (see Maldini v Ambro, 36 NY2d 481, 484).

In so holding, we reject plaintiffs argument that population density is a proper subject of zoning regulation in residential but not industrial areas. The plain language of section 261 refutes any such contention, and certainly indicates that population density may be regulated in any setting, whether industrial or residential. Absent other factors not present here, an unambiguous statute such as this must be applied in accordance with its express terms. "Courts should not * * * add restrictions or limitations where none exist, nor should they interpret what has no need of interpretation” (Matter of Erie County Agrie. Soc. v Cluchey, 40 NY2d 194, 200). Thus, given the proper circumstances, a town board is not without regulatory power over industrial population density.

We turn now to consider the alleged constitutional infirmity. As often stated, a constitutional attack upon a zoning measure will succeed where the property owner establishes " 'that no reasonable return may be had from any permitted use’ ” (McGowan v Cohalan, 41 NY2d 434, 436; Williams v Town of Oyster Bay, 32 NY2d 78, 82; see 1 Anderson, New York Zoning Law and Practice, § 2.15, p 64). Stated conversely, it is not enough to show that the subject land has merely suffered a significant diminution in value as a result of the zoning regulations (see Salamar Bldrs. Corp. v Tuttle, 29 NY2d 221, 227-228).

Notably, plaintiff has offered no evidence demonstrating its inability to realize a reasonable return on the regulated land. To the contrary, the record reveals that an overwhelming majority of the successfully developed parcels in the zone conform to the strictures of the recent amendment. Viewed in this light, the ordinance can hardly be said to deprive plaintiff of all reasonable use of the zoned plots (see, e.g., French Investing Co. v City of New York, 39 NY2d 587, 596-597).

Conceding the nonconfiscatory nature of the zoning regulation, plaintiff nonetheless urges that it be set aside as having no reasonable relationship to a legitimate governmental objective. To be sure, traditional notions of due process require that an enactment bear at least a minimal relationship to such a goal (see, e.g., French Investing Co. v City of New York, supra, at p 596; Maldini v Ambro, 36 NY2d 481, 484-485, supra; Village of Belle Terre v Boraas, 416 US 1, 8). But in scrutinizing a particular piece of legislation, courts must pay heed to their limited role, and scrupulously avoid entering into the legislative realm under the guise of constitutional interpretation (see, e.g., South Carolina Highway Dept. v Barnwell Bros., 303 US 177, 191). Thus, we may inquire into the relationship of the ordinance to a proper governmental interest, but must avoid any substitution of our judgment for that of the legislative body as to the necessity, wisdom or expediency of the legislative act (see, e.g., Town of Hempstead v Goldblatt, 9 NY2d 101, 105). With this caveat in mind, we consider whether the zoning amendment is rationally related to a permissible State interest.

Legitimate governmental goals are those which in some way promote the public health, safety, morals, or general welfare (Salamar Bldrs. Corp. v Tuttle, 29 NY2d 221, 224-225, supra; Euclid v Ambler Co., 272 US 365, 397). No extensive search is needed for discovery of such an objective here, where the express aim of the Huntington Town Board in enacting the challenged amendment was to preserve the established character of the area — certainly a permissible, if not salutary, goal (Matter of Wulfsohn v Burden, 241 NY 288, 301-302; see, also, Rowe St. Assoc. v Town of Oyster Bay, 63 Misc 2d 46, 48, affd 34 AD2d 987, 988, affd 27 NY2d 973). It matters not that the character of the area is industrial rather than residential, for surely that consideration alone does not dilute a municipality’s right to conserve the desirable nature and economic value of an entire zone.

Moreover, we conclude that there is a reasonable nexus between the town’s objective and the zoning ordinance. Manifestly, the industrial district involved is predominantly single tenanted: 31 of 34 developed properties have one tenant, and two others have two users each. It is precisely that character which defendant wishes to preserve, and it is difficult if not impossible to maintain that the amendment is not rationally designed to achieve this end.

It may be true, as plaintiff contends, that the Town of Huntington’s zoning amendment has only an arguable impact upon population density and is not the best possible method for preserving the area’s character. This is not our consideration, and we need only ascertain, as we have, that the challenged ordinance bears a rational relationship to a legitimate goal of government. There our inquiry must end.

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

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed.

       Upon holding for defendant, Special Term directed that plaintiff’s complaint be dismissed. The Appellate Division modified by deleting that portion of the lower court judgment which dismissed the complaint, and substituted in its stead a declaration that plaintiff had not proven the zoning ordinance unconstitutional (see Lanza v Wagner, 11 NY2d 317, 334). As so modified, the judgment of Special Term was affirmed (57 AD2d 116, 122).


source: Caselaw Access Project

author: Chief Judge Breitel. Jasen, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Vincent J. Bevilacqua, Jr., Appellant.
    Argued September 19, 1978;
    decided November 2, 1978

      POINTS OF COUNSEL

      Joseph J. Buderwitz, Jr. and Alfred E. Page, Jr., for appellant.
    I. The oral incriminating statements made by defendant should have been suppressed; it was reversible error to allow in evidence Sergeant Purdy’s notes and Sergeant Purdy’s testimony with respect to oral incriminating statements made to him by defendant. (Miranda v Arizona, 384 US 436; People v Townsend, 33 NY2d 37; People v Hocking, 15 NY2d 973; People v Taylor, 16 NY2d 1038; People v Donovan, 13 NY2d 148; People v Gunner, 15 NY2d 226; People v Arthur, 22 NY2d 325.) II. It was reversible error for the Trial Judge to repeatedly emphasize, during his charge to the jury, that the defense of duress was not available to this defendant if he had intentionally or recklessly placed himself in the situation in which he found himself; this overemphasis on the negative aspects of this defense was highly prejudicial and denied defendant a fair and impartial trial. (People v Bai, 7 NY2d 152; People v Velleman, 247 App Div 172; Chapman v California, 386 US 18; People v Easton, 307 NY 336; People v Herman, 255 App Div 314.) III. The New York statutory scheme which places the burden on an accused to prove by a preponderance of the evidence the defense of duress is violative of an accused’s constitutional right to due process of law. (Matter of Winship, 397 US 358; Mullaney v Wilbur, 421 US 684; People v Patterson, 39 NY2d 288; Speiser v Randall, 357 US 513; People v Balogun, 82 Misc 2d 907; People v Woods, 84 Misc 2d 301; People v Davis, 49 AD2d 437; People v Hawkins, 84 Misc 2d 201; People v Brown, 50 AD2d 1078.) IV. Defendant did not possess the requisite culpable mental state to sustain any of the counts of the indictment; the defense of duress was overwhelmingly established: it was reversible error for the trial court to deny, at the close of the evidence, defendant’s motions (1) for a trial order of dismissal as to each and every count of the indictment as a matter of law, on the ground that the trial evidence was not legally sufficient to establish any of the offenses charged therein against this defendant, or any lesser included offense, and (2) for a directed verdict of acquittal on the ground that defendant had established the defense of duress.

      Carl A. Vergari, District Attorney (Ronald J. Bavero of counsel), for respondent.
    I. The voluntariness of the oral confession given by defendant was established by the People beyond a reasonable doubt. (People v Stephen J. B., 23 NY2d 611; Matter of Kevin R., 42 AD2d 541; People v Carbonaro, 21 NY2d 271; People v Hocking, 18 NY2d 832; People v Taylor, 16 NY2d 1038; People v Hocking, 15 NY2d 973; People v Caruso, 45 AD2d 804; People v Anderson, 42 NY2d 35.) II. The court’s charge to the jury on the affirmative defense of duress was fair and impartial. III. Section 40.00 of the Penal Law which places the burden of proving duress by a mere preponderance of the evidence upon defendant, does not violate the due process protections of the Federal and State Constitutions. (Mullaney v Wilbur, 421 US 684; Davis v United States, 160 US 469; Leland v Oregon, 343 US 790; Rivera v Delaware, 429 US 877; People v Bornholdt, 33 NY2d 75; People v Utica Daw’s Drug Co., 16 AD2d 12; Victory v New York, 416 US 905; People v Laietta, 30 NY2d 68, 407 US 923.) IV. Defendant’s guilt was established by overwhelming evidence. (People v Eisenberg, 22 NY2d 99; People v Leonti, 18 NY2d 384, 389 US 1007; People v De Tore, 34 NY2d 199, 419 US 1025.)
   OPINION OF THE COURT

Chief Judge Breitel.

Defendant appeals from the Appellate Division’s unanimous affirmance of his conviction, after jury trial, on two counts of murder and various lesser offenses in connection with the robbery and shooting death of a liquor store owner.

The issue is whether, viewed as a whole, improper police behavior requires suppression of defendant’s oral confession. The questionable behavior falls into two categories. First, despite requests by defendant, who was 18 years old, the police did not, until after the confession, notify defendant’s mother of his arrest. Second, defendant was moved from one police station to another, and when his lawyer finally arrived, after the defendant had already given his oral confession, defendant’s location was concealed from the lawyer.

The order of the Appellate Division should be reversed and a new trial ordered. The police conduct isolated defendant from two of his most likely avenues of assistance, his mother and his lawyer. The net effect was to preclude the possibility, even likelihood, that defendant would procure legal advice before submitting to police questioning and, ultimately, confessing to the crime. Under these circumstances, defendant was denied his constitutionally guaranteed right to counsel. His confession should have been suppressed, and his conviction must, therefore, be reversed.

On June 3, 1974, in the Town of Greenburgh, Ruggiero, a liquor store owner who lived across the street from defendant Bevilacqua, was shot through the back of the head, to be found dead in his automobile two days later. The evidence at trial indicates, overwhelmingly, that defendant, together with Michael and Robert Gardella and Richard Harris, had plotted to rob Ruggiero of a briefcase they believed contained a large amount of money. Ultimately, the victim Ruggiero was coaxed into driving defendant and Michael Gardella home. When the victim took the wheel with Bevilacqua beside him, Gardella, sitting in the back seat, shot and killed him.

The salient facts described below are based on the thorough and detailed opinion and formal findings of fact of the Judge who conducted the pretrial suppression hearing.

Defendant was not arrested until 11 days later, when Town of Greenburgh and City of White Plains police apprehended him in White Plains. The Gardella brothers were arrested the same evening, presumably also by the Greenburgh and White Plains police. Yet, none of the defendants was taken directly to the Greenburgh police station. Instead, Bevilacqua was taken to the Elmsford station, and the Gardella brothers were taken to Tarrytown, allegedly because of the lack of "processing” facilities in Greenburgh. Only much later were the suspects transported to Greenburgh.

On the way to Elmsford, following his arrest at 7:15 p.m., Bevilacqua was advised of his constitutional preinterrogation rights. He did not insist on having a lawyer present, but did ask to see his mother. At 8:30 p.m., having been at the police station for nearly an hour, defendant again asked the police to telephone his mother. The request was apparently ignored. Instead, the police began questioning defendant, perhaps waving purported inculpatory statements by other witnesses and perhaps, according to defendant, threatening the use of physical force. It is conceded that no physical force was actually used. By 9:30 p.m., defendant began to give the police an oral confession, which was completed between 10:00 and 10:15 p.m. Later, a written statement was prepared, and defendant signed it at 11:15 p.m. After this statement had been signed and verified before a notary, defendant’s parents were finally telephoned. At around midnight, defendant was taken to Greenburgh police headquarters.

Meanwhile, at around 7:00 p.m., the lawyers representing the Gardella brothers were notified of their arrest. For the next two hours there was shuttling between the White Plains and Greenburgh police headquarters in an effort to locate the clients. After they were eventually located at the Greenburgh station, one of the lawyers called Michael Russo, Bevilacqua’s lawyer in other matters, to apprise him of Bevilacqua’s arrest. Russo received the message, and between 10:15 and 10:30 left instructions at the Greenburgh station that Bevilacqua was not to be interrogated until he arrived. Upon Russo’s arrival at the Greenburgh station at 11:00, the lawyer was told that Bevilacqua was being processed, and that he would have to wait. He was not informed that Bevilacqua had not yet arrived at Greenburgh, but was still in Elmsford. Despite repeated requests, not until 12:37 a.m. was Russo finally permitted to consult with his client.

At the pretrial suppression hearing, defendant’s written confession was suppressed because it had been given after the police had deliberately concealed defendant’s location from his lawyer and refused the lawyer access to his client (see People v Donovan, 13 NY2d 148, 151). The oral confession, however, was not suppressed. At his trial, which had been severed from those of the other perpetrators, defendant was convicted on all counts. He was sentenced from 25 years to life imprisonment on the two murder counts, and to lesser terms on the other counts. The Appellate Division unanimously affirmed.

It is true, of course, that the right to counsel, like most other constitutional rights, may be waived. But unless the right is "waived” under circumstances evincing a conscious and voluntary act, it will not be effective, since laymen, even laymen with experience in the criminal law, are not likely to know precisely what rights are being waived (see People v Hobson, 39 NY2d 479, 484-485). Hence, the courts must be careful in evaluating purported waivers of the right to counsel before a lawyer enters the proceeding.

It was found as a fact at the pretrial hearing that when Bevilacqua was first apprehended, he waived his right to a lawyer, but asked to see his mother. As previously noted, defendant was 18 years old at the time. It was only natural that he should regard his mother, rather than a lawyer, as a primary source of help and advice. He might have expected his mother to call his lawyer; he might not have. The point is that by not telephoning his mother, despite an at least once repeated request, until after Bevilacqua had been interrogated and had confessed, the police foreclosed the possibility, and even the likelihood, that he would receive adequate counsel before responding to police questioning.

In this respect, the case is not unlike People v Townsend (33 NY2d 37). There, the mother of a 17-year-old defendant tried repeatedly to reach her son while he was in custody. Each of her telephone calls, however, was met with police denials that the boy was in custody, while, in fact, he was not only in custody, but confessing to the crime. This deception and trickery was condemned by this court in reversing the conviction (id., pp 39-42).

The analogy to the Townsend case is not, of course, perfect. In Townsend, the defendant was a legal minor; in this case, he is not. In Townsend, the police deliberately lied to the mother; in this case their wrong was one of omission in ignoring defendant’s requests to speak with his mother. In the Townsend case, defendant was never properly given preinterrogation warnings; in this case the warnings were given and Bevilacqua waived his right to counsel. These distinctions might, in another case, require or permit a different result, but in this case other police misconduct, seemingly planned and deliberate, compounded the error of not promptly telephoning defendant’s mother.

When defendant’s lawyer, Russo, first learned of defendant’s arrest and telephoned the Greenburgh police station, his instructions not to interrogate defendant were ignored by the police. When he arrived at the station, he was told he could not see the defendant. The police chose to conceal defendant’s location at another police station. Moreover, they continued to interrogate defendant in Elmsford and even to extract a written confession from him after his lawyer had entered the proceeding and requested a consultation with his client.

Once a lawyer telephones police headquarters with a request that interrogation of his client be stopped, concealment of defendant’s whereabouts and failure of intra-police communication, does not permit the police to continue questioning defendant as if no lawyer had entered the proceedings (see People v Pinzon, 44 NY2d 458, 464-465). Thus, suppression of the written confession secured in this case after the lawyer had telephoned was necessary and proper (id.). But, in addition, the continuous, unusual, and deliberate isolation of defendant from potential avenues of assistance required suppression of the earlier oral confession as well as the later written one.

When a seemingly conscious scheme like the one used by the police in this case is involved, nice distinctions separating the first confession from the second lose much of their validity. True it is that defendant’s lawyer did not enter the proceedings until after the oral confession had been given. But it is also true that had defendant’s initial, or even later, request to see his mother been honored, the lawyer would undoubtedly have become involved much earlier. Crucial is the continuing effort by the police to prevent defendant from establishing contact with anyone who might be able to provide him with assistance or advice. Encompassed in this scheme are the isolation of Bevilacqua, his transportation to a police station different from that to which the other perpetrators had been taken, failure to honor defendant’s requests to see his mother, and refusal to allow the lawyer Russo to see his client. The scheme succeeded in depriving defendant of his right to counsel. It requires reversal of his conviction.

Reversal, of course, is unfortunate because of the gravity of the offenses charged and the overwhelming evidence of defendant’s guilt. But even those considerations do not permit the courts to overlook the casual overriding by the police of defendant’s constitutional rights.

Accordingly, the order of the Appellate Division should be reversed, and a new trial ordered.

Jasen, J.

(dissenting). I cannot agree with the majority in the reversal of defendant’s convictions of murder, robbery, grand larceny, possession of a weapon and conspiracy in the first degree.

The question squarely presented on this appeal is whether an 18-year-old adult, arrested on six previous occasions and not a novice to the criminal justice system, was fully capable of voluntarily and intelligently waiving his right to counsel, without prior notification to his mother.

Here, the trial court found, and the Appellate Division affirmed, that defendant’s oral admissions were voluntarily made after "he intelligently and knowingly waived his right to counsel on each of the occasions that his Miranda rights were given to him”. Whether the oral admissions were or were not voluntary is a question of fact and we may not disturb these findings except where such findings are premised on clearly insufficient evidence. (NY Const, art VI, § 3; People v De Tore, 34 NY2d 199, 206, cert den 419 US 1025; People v Eisenberg, 22 NY2d 99, 101; People v Leonti, 18 NY2d 384, 389, cert den 389 US 1007; Cohen and Karger, Powers of the New York Court of Appeals, p 742.)

Nevertheless, despite the affirmed finding of fact that the oral confession was voluntarily made, the majority hold that "improper police behavior requires suppression of defendant’s oral confession.” Failure of the police to notify defendant’s mother of his arrest and moving the defendant "from one police station to another” during the course of the investigation are characterized as constituting questionable police behavior, requiring reversal of the convictions.

Turning first to the conduct of the police in failing to contact defendant’s mother, I would point out that the suppression court considered, as a question of fact, this circumstance in determining whether the defendant intelligently and knowingly waived his right to counsel. After weighing the evidence, drawing the necessary inferences from the evidence and passing on the credibility of the witnesses at the suppression hearing, the court found, as a matter of fact, that the defendant waived his right to counsel before making the incriminating admissions. Defendant’s request to see his mother was only one factor of many considered by the suppression hearing court. In considering this factor, the court assessed all of the relevant circumstances, including defendant’s age, criminal justice experience and intelligence in determining the issue of waiver and voluntariness.

When one considers the specific circumstances present here, it should be abundantly clear why the suppression court found that the oral statements of the defendant, made prior to the appearance of an attorney, were voluntary. First, the defendant had been promptly informed of his constitutional rights on two separate occasions prior to the making of the incriminating oral statement. There is no claim, and indeed there can be none, that the warnings were deficient in any manner or that the defendant did not understand his rights. Moreover, it is important to remember that the defendant was not a novice to the criminal justice system, having been arrested on six previous occasions, receiving on each such occasion his constitutional rights. Indeed, the defendant had the presence of mind to ask Investigator Keating during the ride to Elmsford if he had an arrest warrant. Certainly, the defendant’s extensive prior experience with the criminal justice system was an important factor for the suppression court Judge to consider in determining whether he voluntarily waived his right to counsel even though he requested the police to call his mother. As this court cogently observed in People v Carbonaro (21 NY2d 271, 278): "[I]t is important to remember that the defendant in this case was not a young, inexperienced first offender * * * This, of course, does not mean that he may not have had a right to speak to his family; rather, it is relevant in considering the effect upon him of the denial of that right.” (Emphasis added.)

Clearly, it was for the suppression court to pass on the question as to what effect should be accorded to the officers’ failure to contact the defendant’s mother in determining whether the defendant knowingly and intelligently waived his right to counsel and voluntarily confessed the crimes of which he was convicted. Even where there are conflicting inferences to be drawn as to the effect the failure of the police to contact defendant’s mother had upon the defendant, the choice of inferences is for the trier of the facts. And that choice should be accepted by this court, unless unsupported, as a matter of law. Hence, where we have, as we do here, a knowledgeable and criminally experienced defendant, it is reasonable to conclude, as the courts below did, that the officers’ failure to immediately call his mother did not have any effect on his voluntary admission.

The other conduct of the police characterized as questionable by the majority was the movement of the defendant "from one station to another”. The record discloses that throughout his questioning, defendant was only detained at one police station — the Elmsford police headquarters. He arrived there on June 14, 1974 at 7:35 p.m. and made the oral admissions in question prior to Attorney Russo’s call to the Greenburgh police headquarters at about 10:15 p.m. While it is true that the defendant, in addition to making the oral admission, also signed a written confession at 11:15 p.m., the written confession was properly suppressed by the court below and is not now before us. All that is before us is the oral admission made by the defendant before his attorney entered the case. Throughout the interrogation, the defendant was only at one police station and there was no movement of the defendant "from one station to another”. It should be pointed out that all four defendants involved in the crime were arrested on the same evening. They were taken to different police stations. The defendant was sent to the Elmsford station. There is credible testimony in the record that the Greenburgh station did not have the facilities to process multiple defendants. While it is argued by defendant that the actions of the police in taking him to Elmsford and in not contacting his mother effectively "sealed” him off from counsel, I would only say that the defendant, a knowledgeable and criminally experienced person, had it within his power to effectively cease all questioning merely by requesting the presence of counsel.

Indeed, Michael Russo, defendant’s attorney, testified at the suppression hearing that "prior to June 14, 1974 [he] had represented the defendant and his family on many occasions.” This is not, therefore, a case in which an unsuspecting defendant was thrust into an unfamiliar and oppressive environment not knowing where to turn. Rather, the record supports a conclusion that defendant, apprised of his constitutional rights and schooled in criminal proceedings, knew that by requesting his attorney, an individual who had represented him on numerous prior occasions, all questioning would cease. Under these circumstances, the fact that defendant was detained at the Elmsford police headquarters is hardly probative of the voluntariness of defendant’s oral statements.

Nor does our holding in People v Townsend (33 NY2d 37) require a different result. That decision is predicated upon disapproval of police misconduct so extreme as to offend established notions of fundamental fairness. Indeed, in Townsend we noted that the question of whether the mother of the defendant would have retained an attorney had she been apprised of her son’s predicament "is beside the point”. (33 NY2d, at p 41.) In Townsend, the police repeatedly and deliberately lied to the defendant’s mother as to her 17-year-old son’s whereabouts in order to prevent her from seeing him and possibly obtaining counsel for him. The mother repeatedly telephoned the police, even prior to the interrogation, and was told the defendant was not being held. Here, there is no evidence of an affirmative effort to prevent the defendant’s mother from contacting him.

Moreover, the conduct of the police in Townsend was far more overbearing than that which occurred here. For example, in addition to lying to the defendant’s mother, the police secured the critical confession only after long hours of interrogation and after three oral confessions, inadmissible because of a failure to advise defendant of his rights, had been extracted from the defendant. Furthermore, the defendant in Townsend was not as criminally experienced as the present defendant. Viewed in its entirety, the courts below could have found, as they did, that the conduct of the police herein did not offend established notions of fundamental fairness.

Accordingly, I would affirm.

Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur with Chief Judge Breitel; Judge Jasen dissents and votes to affirm in a separate opinion.

Order reversed, etc.

      . The codefendants in this cold-blooded murder and robbery, Michael and Robert Gardella and Richard Harris, were similarly convicted after separate trials. The judgments of conviction were affirmed by the Appellate Division and leave to appeal denied by this court to Robert Gardella and Richard Harris (42 NY2d 828).

      . The suppression court Judge made this observation of the defendant: "This court had the opportunity to observe the defendant testify under fairly intensive direct and cross-examination. He was obviously completely aware of what was going on, and gave lucid and detailed answers, indicating considerable expertise as to his rights, consistent with that of an intelligent young man who had been arrested and been given his constitutional rights six times before the evening in question. The court believes that he intelligently and knowingly waived his right to counsel on each of the occasions that his Miranda rights were given to him and that the admissions made, before counsel appeared on the scene, therefore, are not subject to being suppressed.”


author: Jasen, J.

text:
    The People of the State of New York, Respondent, v Gary Frederick, Appellant.
    Argued September 21, 1978;
    decided November 2, 1978

      POINTS OF COUNSEL

      David S. Zapp for appellant.
    I. Defendant is entitled to a hearing on a motion to withdraw a guilty plea where (a) the plea is alleged to be induced by counsel’s representation that the court had agreed to follow the prosecutor’s recommendation and (b) the defense counsel affirms that the court made such a promise. (Blackledge v Allison, 431 US 63; Machibroda

      v United States, 368 US 487; Herman v Claudy, 350 US 116.) II. A hearing on defendant’s claim should be held before another Judge. (People v Selikoff, 35 NY2d 227.)

      Robert M. Morgenthau, District Attorney (Mark Dwyer, Robert M. Pitler and Charles H Solomon of counsel), for respondent.
    The court did not abuse its discretion in denying Frederick’s motion to withdraw his guilty plea without a hearing. (Blackledge v Allison, 431 US 63; People v Miller, 42 NY2d 946; People v Tinsley, 35 NY2d 926; People v Friedman, 39 NY2d 463; People v McClain, 32 NY2d 697; People v Selikoff, 35 NY2d 227; Santobello v New York, 404 US 257; People v Lazore, 59 AD2d 635; People v Robinson, 44 AD2d 813.)
   OPINION OF THE COURT

Jasen, J.

Framed for resolution on this appeal is the question whether the defendant was entitled to an evidentiary hearing to determine whether he was induced to plead guilty because of an off-the-record unfulfilled promise allegedly made to his attorney by the court.

Defendant, Gary Frederick, was arrested on September 29, 1972 for selling various quantities of cocaine, amphetamines and barbiturates to an undercover police officer. By an indictment filed on December 19, 1972, defendant and one Edward Montiell were charged with two counts of criminal sale of a dangerous drug in the third degree and related possessory crimes. Defendant alone was charged in two separate indictments, also filed on December 19, 1972, with the sale of amphetamines and barbiturates on August 24, 1972, and with the possession of heroin, cocaine, opium, methadone, cannabis, amphetamines, barbiturates, and a pistol, which were found in defendant’s apartment at the time of his arrest.

When defendant was taken into custody, he informed the authorities that the undercover officer to whom he sold narcotics had lied about both the quantity of narcotics purchased and the amount of money involved in the transactions. Defendant consented to co-operate with the office of the Special Narcotics Prosecutor in an investigation into the conduct of this allegedly corrupt police officer.

In exchange for defendant’s co-operation, the parties negotiated a plea whereby defendant was to plead guilty to criminal possession of a dangerous drug in the third degree. The prosecutor also agreed to recommend a sentence of probation if defendant’s assistance in the investigation proved satisfactory.

On May 30, 1973, the defendant tendered his guilty plea. The following colloquy occurred between the defendant and the court:

"THE COURT: Having had that discussion [with your attorney] do you understand that you are pleading guilty to a 'C’ felony today?

"DEFENDANT: Yes.

"THE COURT: Do you understand under a 'C’ felony you can receive a sentence of up to fifteen years, as a matter of fact, there could be a minimum sentence of five years and a maximum sentence up to fifteen years; do you understand?

"DEFENDANT: Yes, I do.

* * *

"THE COURT: Now as far as I am concerned, and as far as the District Attorney is concerned, well, I will first ask you this: Has the District Attorney or your attorney indicated to you anything other than that I have the scope and I could sentence you up to fifteen years? Have any promises been made to you beyond what I have just said?

"DEFENDANT: No.

"THE COURT: In other words, what I am saying is I have made no promises except to get a probation report, listen to Mr. Zapp [defendant’s attorney] or whoever will be representing you, I assume Mr. Zapp, on the day of sentence, listen to you if you want to, and listen to the District Attorney if he wants to make any recommendation; but that if I sentence you to anywheres up to fifteen years, or a minimum of five years, up to five years, or a maximum up to fifteen, you have received all promises and recommendations that are here made today; do you understand?

"DEFENDANT: Yes.

* * *

"THE COURT: I notice you turned to Mr. Zapp. I notice he said something to you. I don’t want to mislead you. I assume he didn’t say anything contrary to what I am saying. You understood what I said? I said that you can receive — and I make no promises as far as what I will do on the day of sentence. I don’t say I will, I won’t say I won’t, but I say I have that scope, and I can sentence you, and if you do receive a sentence up to a minimum of five years and a maximum of fifteen, you have no cause for complaint and say that you want to withdraw your plea because I will not allow it; do we understand each other?

"DEFENDANT: Yes.”

Defendant’s sentencing was repeatedly adjourned for several months while the investigation of the undercover officer continued. However, on November 25, 1974, when the parties again appeared before the court to defer sentencing, Mr. Zapp alleged that prior to the entering of defendant’s guilty plea, he requested that the court put on the record its assurance that the defendant would be permitted to withdraw his plea if the court could not, at sentencing, follow the prosecution’s recommendation. Mr. Zapp further contended that the Judge responded, in substance, that such formalities were not necessary since the prosecution’s sentence request was always adopted. The court denied making such a statement, or ever implying that defendant could withdraw his plea if he was not satisfied with the sentence. This discussion culminated in defendant’s motion to withdraw his guilty plea in December of 1974.

Defendant’s motion was denied and he appeared for sentencing on June 27, 1975. Although the prosecutor recommended that defendant be placed on probation, the court, after reviewing the probation reports, stated that it was unable to follow this recommendation and imposed an indeterminate four-year prison sentence. The Appellate Division unanimously affirmed.

In this court, defendant claims that he was entitled to an evidentiary hearing on his motion to withdraw his guilty plea. In support of his motion, defendant alleged that he was induced to plead guilty by his attorney’s representation that the court promised to sentence him in accordance with the prosecutor’s recommendation. If this allegation were indeed true, defendant should have been allowed to withdraw his plea, for it is well settled that "a guilty plea induced by an unfulfilled promise either must be vacated or the promise honored”. (People v Selikoff, 35 NY2d 227, 241, cert den 419 US 1122, citing Santobello v New York, 404 US 257.)

There exists no hard-and-fast rule which prescribes the nature and extent of the fact-finding procedures prerequisite to the disposition of motions to withdraw a plea of guilty previously entered. (People v Tinsley, 35 NY2d 926, 927.) Rather, the Judge hearing the motion must exercise his discretion in affording defendant a reasonable opportunity to advance his claims from which an informed and prudent determination can be rendered. As we stated in People v Tinsley (35 NY2d, at p 927, supra), "[o]nly in the rare instance will a defendant be entitled to an evidentiary hearing; often a limited interrogation by the court will suffice.” (See, also, People v Friedman, 39 NY2d 463, 467; People v Nixon, 21 NY2d 338.)

There is no suggestion that defendant was not given an adequate opportunity to present his contentions. On November 25, 1974, the misunderstanding between the court and defendant’s counsel crystallized. An extensive dialogue ensued at that time, and defendant submitted detailed affirmations in support of his motion. Nor does the record intimate that defendant’s guilty plea was improvident or baseless. (See, e.g., People v Beasley, 25 NY2d 483; People v Nixon, 21 NY2d 338, supra.) Defendant was not a novice in criminal affairs and was, therefore, schooled in the nature of criminal proceedings. Only after consultation with his attorney and detailed explanations by the court did defendant tender his guilty plea. There is, therefore, no basis for assuming that defendant was not cognizant of the legal implications and personal repercussions of his action.

Absent a showing that defendant’s plea was baseless, the Judge to whom the motion is addressed must be entitled to rely on the record to ascertain whether any promises, representations, implications and the like were made to the defendant. (See People v Selikoff, 35 NY2d 227, 241-244, supra; People v Lazore, 59 AD2d 635.)

Judicial recognition of the laudable purposes served by plea negotiations is legion, and further documentation would be mere surplusage. (See, e.g., Blackledge v Allison, 431 US 63, 71; Santobello v New York, 404 US 257, 261, supra; Brady v United States, 397 US 742, 752; People v Selikoff, 35 NY2d 227, 232-235, supra.) The dispositive factor in this case is the need for finality which must be accorded dispositions by guilty plea in order to secure these acknowledged benefits. Only rigorous adherence by the courts to a policy of affording guilty pleas a great measure of finality will immunize plea negotiations from indiscriminate potshots.

As previously noted, the court took painstaking measures to insure that the defendant fully understood the consequences of his guilty plea. Further, the court informed defendant, in emphatic terms, that no promises were being made concerning the sentence defendant could receive. If the court had indeed assured defendant’s counsel that it would follow the prosecution’s sentence recommendation during an off-the-record bench conference, it was incumbent upon defendant’s attorney to place that promise, in unmistakable terms, on the record. While we are sympathetic to counsel’s allegation that the court stated that such formalities were not required, vacatur of defendant’s plea on this ground would serve to undermine the integrity of plea negotiations. Public policy mandates that any remnants of the clandestine atmosphere of the plea negotiating process be eliminated.

The record clearly indicates that the court only assured defendant that it would consider any recommendation made by the prosecutor, listen to any statements of the defendant and his counsel, and study the probation reports prior to imposing sentence. Since the record is totally destitute of any further promises, the Judge properly viewed defendant’s contentions as unfounded. Hence, no hearing was required.

A defendant will not be heard to challenge his guilty plea when the minutes of the plea are unequivocal and refute any contention of an off-the-record promise. In so holding, we reaffirm the position adopted by this court in People v Davidson (42 AD2d 957, affd sub nom. People v Selikoff, 35 NY2d 227, supra). There, the defendant claimed that an off-the-record promise by a Judge, since deceased, assured defendant that he would not sentence defendant to more than four years. Chief Judge Breitel, speaking for a unanimous court, after observing that any claim of an inconsistent off-the-record promise is flatly contradicted by the record, noted that "even if the averments retained some 'scintilla’ of credibility it would merit no judicial recognition because of its effect on the plea negotiation process. The desirability of encouraging exposure on the record of what has been said, what has been agreed, and what conditions exist before performance of a 'promise’ may be relied upon, would be utterly negated.” (35 NY2d, at p 244 [emphasis added].)

This policy of memorializing all promises, representations, implications and the like on the record should not be disregarded in a case, as in the present, where the Judge alleged to have made the promise must ultimately rule upon defendant’s motion to withdraw his guilty plea. Surely, where the record flatly contradicts any claim of an off-the-record promise, no judicial recognition of defendant’s averments will be forthcoming.

We reject defendant’s contention that the Supreme Court’s decision in Blackledge v Allison (431 US 63, supra) dictates a different result. Allison involved the summary disposition of a pro se petition seeking a writ of habeas corpus in Federal district court. Allison alleged, in substance, that his attorney instructed him to answer the questions of the State court Judge in such fashion that his guilty plea would be accepted since his attorney had been assured, presumably by the Judge and prosecutor, that he would only get a 10-year sentence of penal servitude. The court accepted Allison’s guilty plea and sentenced him to 17-21 years in prison.

In determining whether the district court’s summary dismissal of Allison’s petition was proper, the court identified as the critical question "whether [defendant’s] allegations, when viewed against the record of the plea hearing, were so 'palpably incredible,’ [Machibroda v United States, 368 US 487, 495], so 'patently frivolous or false,’ Herman v. Claudy, 350 U. S. 116, 119, as to warrant summary dismissal.” (Blackledge v Allison, 431 US, at p 76, supra.) Two factors were deemed pivotal by the court: first, the nature of the record of the proceeding at which the guilty plea was accepted, and second, the status of the process of plea negotiation at the time the plea was tendered. (Id.)

In Allison, the only record of the proceeding at which the defendant pleaded guilty was a standard printed form consisting of 13 sterile inquiries. (Id., at pp 66-67.) No transcript was made at this time or at sentencing. As the Supreme Court noted, "[t]he process * * * did nothing to dispel a defendant’s belief that any bargain struck must remain concealed”. (Id., at p 77.) Further, the court observed that plea negotiations in North Carolina at that time were not publicly acknowledged, and therefore shrouded in secrecy.

The surrounding atmosphere of the instant case is in marked contrast to the circumstances faced by the Supreme Court in Allison. Here, the trial court engaged in tedious questioning of defendant to insure that he fully comprehended the consequences of his guilty plea. The record also reveals the painstaking efforts taken by the court to insure that defendant was not prompted to plead guilty by reason of an undisclosed sentence promise. The record is clear. The court advised, indeed encouraged, defendant to disclose any promises which may have been made in exchange for his guilty plea.

Further, it should be noted that the Supreme Court recognized in Allison that not every facially adequate set of allegations entitles a petitioner to an evidentiary hearing. Often times, alternative procedures may be employed by the court in allowing the petitioner to advance his claim. (Blackledge v Allison, 431 US, at pp 80-82, supra.)

As noted above, the defendant in the present case was afforded an opportunity to present his contentions at the proceeding before the court on November 25, 1974. Defendant also submitted detailed affirmations in support of his motion to withdraw his guilty plea. Supplied with this evidence and a complete transcript of the minutes of the plea hearing, the Judge had the essential resources upon which to evaluate fairly and completely the merits of defendant’s contentions.

In sum, we again stress the importance of placing the entire agreement reached by the parties through plea negotiations on the record. Parties must realize that "in all but the most unusual circumstances, no other purported agreement will be recognized.” (People v Selikoff, 35 NY2d 227, 244, supra.) Where, as in the present case, the minutes of the plea are unequivocal and refute any claim of an off-the-record promise, no judicial recognition of defendant’s allegations is warranted. The very integrity of the plea negotiating process so mandates.

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

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.

       The questions from the form which are of particular relevance are:
      “8. Do you understand that upon your plea of guilty you could be imprisoned for as much as minimum [sic] of 10 years to life?”
      "11. Has the Solicitor, or your lawyer, or any policeman, law officer of anyone else made any promises or threat to you to influence you to plead guilty in this case?”


author: Jones, J.

text:
    In the Matter of Long Island Lighting Company, Respondent, v State Tax Commission et al., Respondents, and City of New York, Appellant.
    Argued September 20,1978;
    decided November 2, 1978

      POINTS OF COUNSEL

      W. Bernard Richland, Corporation Counsel (Isaac C. Donner, Samuel J. Warms and Arnold Fox of counsel), for appellant.
    I. The State Tax Commission’s determination complies with the provisions for apportionment of section 253-a of the Tax Law, title W of the city’s Administrative Code and of the pertinent provisions of section 260 of the Tax Law. The use of assessed valuations is rational and reasonable since it is the basis specifically prescribed by the Legislature for making the apportionment, and there is no basis in law or fact for using another method. (Matter of United States Steel Corp. v Gerosa, 7 NY2d 454; County Securities v Seacord, 278 NY 34; Matter of Raskin [Corsi], 270 App Div 451; Matter of Mollenhauer, 257 App Div 286; Carmichael v Southern Coal Co., 301 US 495; W. H. H. Chamberlin, Inc. v Andrews, 271 NY 1;
      Gautier v Ditmar, 204 NY 20; People ex rel. Hatch v Reardon, 184 NY 431; Genet v City of Brooklyn, 99 NY 296; Matter of Village of Gowanda v County of Erie, 25 AD2d 18, 19 NY2d 735.) II. The apportionment made on the basis of assessed values as provided by the statutes involved does not deny equal protection. (Madden v Kentucky, 309 US 83; Shapiro v City of New York, 32 NY2d 96, 414 US 804; Lehnhausen v Lake Shore Auto Parts Co., 410 US 356; Allied Stores of Ohio v Bowers, 358 US 522; People ex rel. Hatch v Reardon, 184 NY 431, 204 US 152; New York R. T. Corp. v City of New York, 275 NY 258, 303 US 573; W. H. H. Chamberlin, Inc. v Andrews, 271 NY 1; Matter of 436 W. 34th St. Corp. v McGoldrick, 288 NY 346; Charleston Assn. v Alderson, 324 US 182.) III. At the hearing petitioner failed to establish that the determination under review is erroneous, illegal or otherwise invalid. Hence, the determination cannot be disturbed. (People ex rel. Kohlman & Co. v Law, 239 NY 346; People ex rel. Texas Co. v Gilchrist, 252 NY 19; Matter of Calder v Graves, 261 App Div 90, 286 NY 643; Matter of Redman v Mealey, 270 App Div 75; Matter of Ajax Trucking Co. v Browne, 272 App Div 1087; People ex rel. Hull v Graves, 289 NY 173; Matter of Harte v Chapman, 283 App Div 551, 307 NY 941; Matter of Britton v State Tax Comm., 22 AD2d 987, 19 NY2d 613.)

      Herbert M. Leiman, Edward M. Barrett, William R. Hum-burg and Francis J. McDonough for Long Island Lighting Company, respondent.
    I. The Tax Law was erroneously construed by the State Tax Commission. (Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1.) II. The determination by the State Tax Commission produces an unfair, unjust and inequitable tax payment to New York City. (Guth Realty v Gingold, 34 NY2d 440; Weiskopf v City of Saratoga Springs, 244 App Div 417.) III. The State Tax Commission should apply equalization rates to the assessed value of the property involved so that the mortgage tax due New York City will equitably reflect the value of the property located therein. (Matter of New York Cent. R. R. Co. v Manzella, 7 AD2d 173; People ex rel. Yaras v Kinnaw, 303 NY 224; Matter of O’Brien v Assessor of Town of Mamaroneck, 20 NY2d 587; Guth Realty v Gingold, 41 AD2d 479, 34 NY2d 440; 860 Executive Towers v Board of Assessors of County of Nassau, 84 Misc 2d 525.) IV. Petitioner does not maintain that equalized value is equivalent to actual value. (Matter of O’Brien v Assessor of Town of Mamaroneck, 20 NY2d 587; 860 Executive Towers v

      Board of Assessors of County of Nassau, 53 AD2d 463; Matter of Rokowsky v Finance Administrator of City of N Y., 41 NY2d 574.) V. Courts are not compelled to follow statutory interpretations by administrative bodies simply because these rulings or practices have endured for years. (Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1.) VI. The determination by the State Tax Commission is not binding on this court because it is unreasonable. (Matter of Howard v Wyman, 28 NY2d 434; Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46.)

      Louis J. Lefkowitz, Attorney-General (Lawrence J. Logan and Ruth Kessler Toch of counsel), for State Tax Commission, respondent.
    I. The State Tax Commission correctly applied the provisions of sections 253-a and 260 of the Tax Law when it held that the mortgage tax is to be apportioned based on the relative assessments as shown on the local assessment rolls. (People v Newman, 32 NY2d 379, 414 US 1163; Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104; Matter of City of New York [Willard Parker Hosp.], 217 NY 1; People ex rel. Werner v Prendergast, 206 NY 405; Grimmer v Tenement House Dept. of City of N. Y, 204 NY 370, 205 NY 549; City of New York v New York City Ry. Co., 193 NY 543; Matter of Washington St. Asylum & Park R. R. Co., 115 NY 442; Easton v Pickersgill, 55 NY 310; Rathbone v Wirth, 6 App Div 277, 150 NY 459; Matter of Board of St. Opening, 12 Misc 526; Kranker v Levitt, 68 Misc 2d 224; Matter of Conde Nast Pub. v State Tax Comm., 51 AD2d 17; Seligman v Friedlander, 199 NY 373, 200 NY 505; RKO-Keith-Orpheum Theatres v City of New York, 308 NY 493.) II. Apportionment of the mortgage tax based on the assessment rolls does not deprive petitioner of equal protection. (Shapiro v City of New York, 32 NY2d 96, 414 US 804, 1087; Lawrence v State Tax Comm, of Miss., 286 US 276; People ex rel. Hatch v Reardon, 184 NY 431, 204 US 152; Singer Sewing Mach. Co. v Brickell, 233 US 304; Central R. R. Co. v Pennsylvania, 370 US 607; AMPCO Printers-Advertisers’ Offset Corp. v City of New York, 14 NY2d 11; Walters v City of St. Louis, 347 US 231; Allied Stores of Ohio v Bowers, 358 US 522.)
   OPINION OF THE COURT

Jones, J.

We hold that the New York City mortgage recording tax; with respect to a mortgage covering real property located both within and without the city was properly determined by the State Tax Commission on the basis of the relative assessments of such property as they appeared on the respective assessment rolls, without adjustment for differences in equalization rates.

On December 23, 1971 petitioner (LILCO) recorded in the Nassau County Clerk’s office a $50,000,000 supplemental indenture to a mortgage previously executed by it on its properties located in the Counties of Queens (within the City of New York), Nassau and Suffolk and paid a tax of $385,200, including $10,200 which it said represented the tax on the mortgage due to New York City under section 253-a of the Tax Law for that portion of the mortgaged premises in the city. In determining this amount of the New York City mortgage recording tax, LILCO applied equalization rates to actual assessments.

Thereafter, the State Tax Commission, pursuant to sections 253-a and 260 of the Tax Law, determined that the amount due the city was $29,714.82, using a ratio which employed the actual assessments on the last assessment rolls of the city property and of all the property covered by the mortgage. LILCO paid the deficiency of $19,514.82 thus found to be due, then applied for a refund of that amount. The State Tax Commission denied the refund. The Appellate Division annulled the commission’s determination and remitted the matter for further proceedings. We granted leave to appeal under CPLR 5602 (subd [a], par 2).

The difference in the New York City mortgage recording tax as computed by LILCO and by the State Tax Commission was because the equalization rates (incorporated in LILCO’s computations) reflect the fact that the City of New York assesses property within its borders at a substantially higher fraction of actual value (67%) than do the other tax districts in which LILCO’s mortgaged property is located (varying from 14% to 31%). By applying the equalization rates to the tax roll assessments and thus theoretically eliminating the lack of uniformity in assessment practice, LILCO determined that its liability to the City of New York was 4.07% of the total tax computed on the face amount of the mortgage. The Tax Commission’s determination of the apportionment, based on the raw assessment roll figures, produced a liability on behalf of LILCO for 11.88% of the total tax.

Anticipating the possibility that mortgages subject to New York City’s recording tax might cover property situated both inside and outside the city, the Legislature provided in section 253-a of the Tax Law: "3. Where the real property covered by the mortgage subject to the tax imposed pursuant to the authority of this section is situated in this state but within and without a city imposing such tax, the amount of such tax due and payable to such city shall be determined in a manner similar to that prescribed in the first paragraph of section two hundred sixty which concerns real property situated in two or more counties.” The first paragraph of section 260 of the Tax Law provides: "When the real property covered by a mortgage is situated in more than one tax district, the state tax commission shall apportion the tax paid on such mortgage between the respective tax districts upon the basis of the relative assessments of such real property as the same appear on the last assessment-rolls. If, however, the whole or any part of the property covered by such a mortgage is not assessed upon the last assessment-roll or rolls of the tax district or districts in which it is situated, or is so assessed, as a part of a larger tract, that the assessed value cannot be determined, or if improvements have been made to such an extent as materially to change the value of the property so assessed, the tax commission may require the local assessors in the respective tax districts, or the mortgagor, or mortgagee, to furnish sworn appraisals of the property in each tax district, and upon such appraisals shall determine the apportionment. If such mortgage covers real property in two or more counties, the tax commission shall determine the proportion of the tax which shall be paid by the recording officer who has received the same to the recording officers of the other counties in which are situated the tax districts entitled to share therein. When any recording officer shall pay any portion of a tax to the recording officer of another county, he shall forward with such tax a description sufficient to identify the mortgage on which the tax has been paid, and the recording officer receiving such tax shall note on the margin of the record of such mortgage the fact of such payment, attested by his signature. The tax commission shall make an order of determination and apportionment in respect to each such mortgage and file a certified copy thereof with the recording officer of each county in which a part of the mortgaged real property is situated.” (Emphasis added.)

The italicized sentence is the only express reference in the paragraph to property situated in two or more counties— although the two following sentences are obviously amplifications of it — and it does not provide a method of apportionment. It is the first sentence of the paragraph which describes the method — viz., "upon the basis of the relative assessments of such real property as the same appear on the last assessment-rolls”. The parties differ as to the meaning to be ascribed to the quoted language. LILCO would stress the last sentence of section 260 of the Tax Law which provides: "In all cases under this section where the provisions for distribution of the tax among tax districts are inapplicable or inadequate, the tax commission shall establish a basis of apportionment that will be equitable and fair”. It argues that equality and fairness in the apportionment is required and, because the extent to which assessments reflect real value differs from tax district to tax district and county to county, the equalization rates must be applied to actual assessments before the determination of the New York City recording tax may be made. This argument was accepted by the Appellate Division.

It first should be recognized that, subject to constitutional inhibitions, the Legislature has very nearly unconstrained authority in the design of taxing impositions. From another perspective, fairness and equity are not the principal criteria against which the validity of tax statutes is to be determined. Similarly, when equal protection claims are to be weighed the rule is elementary that in taxation, even more than in other fields, Legislatures possess the greatest freedom in classification (Shapiro v City of New York, 32 NY2d 96, 103). Accordingly, it seldom suffices, and is often immaterial, in the resolution of tax controversies to demonstrate that in application a particular statute or regulation works even a flagrant unevenness. (Cf. Matter of Grace y New York State Tax Comm., 37 NY2d 193.) That a "fairer” taxing formula might have been adopted is of no moment. Indeed, in the application of tax statutes, unlike many other statutes, it cannot be assumed that when the Legislature designed the particular statute it had either a specific or even a general desire to achieve a fair or balanced formula. The objective may well have been the production or allocation of optimum revenue, and the particulars of the statute may have been responsive to that objective rather than to any other.

Turning then to the present case we cannot conclude that there is any infirmity in the method employed by the State Tax Commission in apportioning the New York City mortgage recording tax. Indeed that method, whatever may be said of the wisdom or fairness of the legislatively prescribed formula, conforms literally to the mandate of section 253-a, i.e., that the determination shall be "in a manner similar to that prescribed in the first paragraph of section two hundred sixty”. That paragraph directs the commission to apportion the tax "between the respective tax districts upon the. basis of the relative assessments of such real property as the same appear on the last assessment rolls” when the real property covered by the mortgage is situated in more than one tax district. This is precisely what the commission did in this instance.

Were there ambiguity or imprecision in the statute, a not unappealing argument could be made that it would be more fair, just and equitable to base apportionment on "equalized” assessments. Emphasis could be placed on the reliability and worth of the State-wide equalization rates (cf., e.g., Guth Realty v Gingold, 34 NY2d 440). It is to be noted, however, that the practice of fractional assessments long antedated the enactment in 1971 of section 253-a of the Tax Law authorizing imposition of the New York City mortgage recording tax, and that the process and coexistence of equalization rates were then firmly embedded in our tax structure. The Legislature could easily have provided for incorporation of the equalization concept in the determination of the recording tax if it had chosen to do so. It is not insignificant that the statutory language of the first and third sentences of the first paragraph of section 260 calling for apportionment on the basis of assessed values has been interpreted and applied in the 70 years that the mortgage tax law has been in effect, both before and after the enactment of section 253-a, as did the State Tax Commission in this instance. (See, e.g., Report of Atty Gen, 1909, p 547.) The statutory terminology has not been altered since first enacted in 1905, and must be taken to have the same meaning after the enactment of section 253-a as it had before that enactment.

Again, the heavy reliance by LILCO on the quoted last sentence of section 260 is misplaced. It may be opined that, even under a most generous application of the doctrine that broad interpretive authority is generally accorded the agency responsible for the administration of a statute, this sentence would scarcely be sufficient warrant for the State Tax Commission, were it so minded, to adopt the position advanced by LILCO. Whatever the extent of the authority granted in the last sentence, it is conditioned on the earlier tax distribution provisions of the section being "inapplicable or inadequate”— neither branch of which condition would be met in this instance inasmuch as the earlier provisions of the first paragraph are both applicable and adequate. Moreover, as the city points out, the sentence relied on is not a part of the first paragraph of section 260 of the Tax Law — to which section 253-a of the Tax Law makes explicit reference, a circumstance which perhaps precludes all argument that this sentence is applicable to a determination of the New York City mortgage tax.

For the reasons stated it cannot be concluded that the determination of the State Tax Commission in this case was arbitrary, unreasonable or otherwise invalid. Accordingly, the order of the Appellate Division should be reversed, with costs, and the determination of the commission confirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Cooke concur.

Order reversed, etc.

       Section 253-a authorizes the City of New York to impose a mortgage recording tax of 50 cents per $100 of principal obligation secured by a mortgage on property located within the city, which is independent of and additional to the mortgage recording tax imposed by section 253 of the Tax Law. The city imposed such a tax effective August 1, 1971 by the enactment of section W46-1.0 of the Administrative Code of the City of New York.


author: Fuchsberg, J.

text:
    In the Matter of Merrick Holding Corp., Respondent, v Board of Assessors of the County of Nassau, Appellant.
    Argued September 19, 1978;
    decided November 2, 1978

      POINTS OF COUNSEL

      Edward G. McCabe, County Attorney (Thomas A. Liñand and Leon Friedman of counsel), for appellant.
    The court below erred by adopting a rule restricting the valuation of real estate for tax purposes to the interest of the landlord. (Matter of Queensbury Hotel Corp. v Board of Assessors of City of Glens Falls, 33 MisC 2d 302; People ex rel. Hotel St. George Corp. v Lilly, 268 App Div 830, 293 NY 898; People ex rel. Parklin Operating Corp. v Miller, 287 NY 126; Matter of Seagram & Sons v Tax Comm, of City of N. Y., 14 NY2d 314; Caroldee Realty Corp. v Board of Assessors of County of Nassau, 73 Misc 2d 41; People ex rel. Gale v Tax Comm, of City of N. Y, 17 AD2d 225, 12 NY2d 646; New York Mobile Homes Assn. v Steckel, 9 NY2d 533; Clarkson v Skidmore, 46 NY 297; Matter of City of New York [Delaney St.], 120 App Div 700; Matter of City of New York [Allen St.], 256 NY 236.)

      Douglas P. Null and Miriam P. Null for respondent.
    The court below was following well-established precedent when it decided that an addition of an increment for "leasehold bonus” or "economic rent” was not justified in the circumstances of this case. (Matter of Queensbury Hotel Corp. v Board of Assessors of City of Glens Falls, 33 Misc 2d 302; Matter of Pepsi Cola Co. v Tax Comm, of City of N. Y., 19 AD2d 56; People ex rel. Gale v Tax Comm, of City of N. Y., 17 AD2d 225, 12 NY2d 646; People ex rel. Luce v Lewis, 257 App Div 724; Matter of Block v Tax Comm, of City of N. Y, 33 AD2d 899; Rockaway Crest Section 1 v Tax Comm, of City of N. Y, 38 AD2d 759; Matter of Ernst v Board of Assessors of City of Lockport, 58 Misc 2d 504.)
   OPINION OF THE COURT

Fuchsberg, J.

Merrick Holding Corp., the owner of land improved by a 29-store shopping center complex in Nassau County, brought this consolidated certiorari proceeding to review the amount at which the property was assessed for the 1968-1975 tax years. The valuation had been arrived at by the income capitalization method. However, instead of accepting actual rental income as a basis for its computations, the county’s board of assessors first increased it by amounts, termed "leasehold bonuses”, which reflected the difference between the rentals payable to Merrick under long-term leases with three major tenants and the appreciably higher market rental value of the leased spaces. The dispute between the parties focused on the validity of these add-ons.

Special Term, though decreeing some reductions on the basis of other issues not here relevant, upheld the application of the leasehold bonuses and entered judgment accordingly. But the Appellate Division, pointing out that the county’s appraiser had conceded that the three leases "were 'not necessarily improvident when they were made’ ” and taking the view that, without proof of improvidence, it was "improper to apply the leasehold bonus principle to a selected portion of leases in a shopping center in the absence of [undefined] special circumstances”, reversed on the law and remanded for a new determination (58 AD2d 605, 606). On remand, Special Term, then granted the taxpayer’s motion for summary judgment, eliminated the add-ons and entered a new judgment reducing the assessment correspondingly. On the county’s appeal to us, we now conclude that the order of the Appellate Division should, in turn, be reversed and the matter remitted for review of the facts. Our reasons follow.

The command of section 306 of the Real Property Tax Law that all property be assessed at full value does not pronounce an inelastic approach to valuation. Nor does the legislative directive specify a particular method for establishing value. And courts, being under no compunction to do so, have not confined assessors to any one course. To ensure that the existence of varied and multifaceted patterns of land use and ownership does not frustrate the design that each contribute equitably to the public fisc, courts have upheld any fair and nondiscriminatory method that appears most likely to achieve that end (see Blooming Grove Props, v Board of Assessors of Town of Blooming Grove, 34 AD2d 953; cf. Matter of Heller stein v Assessor of Town of Islip, 37 NY2d 1, 4-5; People ex rel. Jamaica Water Supply Co. v State Bd. of Tax Comrs., 196 NY 39, 51-53).

Thus, though commonly the most accurate standard is provided by the sales prices of comparable properties located within the same or similar competitive area in which a parcel being assessed is located, in the absence of sufficiently reliable market data, alternative methods, such as income capitalization or, where necessary, reproduction cost, may be employed (Matter of City of New York [Salvation Army], 43 NY2d 512, 515; Matter of Great Atlantic & Pacifíc Tea Co. v Kiernan, 42 NY2d 236, 240). Not surprisingly, as to income producing property, income capitalization has been the preferred mode (1 Bonbright, Valuation of Property, p 216; see Caroldee Realty Corp. v Board of Assessors of County of Nassau, 73 Misc 2d 41 [shopping center]; Roosevelt Nassau Operating Corp. v Board of Assessors of County of Nassau, 68 Misc 2d 183 [shopping center]).

Consequently, the board’s employment of income capitalization rather than cost or market in the present case was not exceptional (see, generally, Graham, Market Valuation of a Regional Shopping Center, 32 Appraisal J 589). But the appropriateness of this method does not take away from the reality that its application, calling as it does for the exercise of judgment by the appraiser, furnishes, at best, no more than an estimate of the present worth of the benefits to be reaped from the property at issue (1 Bonbright, Valuation of Property, p 218). The goal at all times remains full value. To that end, assessors may devise reasonable methods that assure that the income they accept as the basis for capitalization is as close a reflection of true value as possible.

Our recent holding in G.R.F., Inc. v Board of Assessors of County of Nassau (41 NY2d 512) reflects this flexible approach to problems of valuation. Having found that the circumstances warranted no hard and fast choice between a strict income capitalization approach and one based on cost of reproduction, we there emphasized that "[p]ragmatism * * * requires adjustment when the economic realities prevent placing the properties in neat logical valuation boxes” (G.R.F., Inc. v Board of Assessors of County of Nassau, 41 NY2d 512, 515, supra).

In short, categorization must yield to more exact means of arriving at value. Since other factors may tend to qualify the reliability of actual income as a sole measure of value, the per se rule articulated by the Appellate Division, which would interdict them, must be rejected. For, though realized income will often turn out to be the surest indicator of full value (see Rockaway Crest Section 1 v Tax Comm. of City of N. Y., 38 AD2d 759; People ex rel. Gale v Tax Comm. of City of N. Y, 17 AD2d 225, 230), when fair market rents exceed rental income the latter may, in whole or in part, be made to defer to more precise means of fixing a base on which to compute capitalization (see Encyclopedia of Real Estate Appraising [Friedman ed, 1968], pp 40-41; 1 Bonbright, Valuation of Property, p 229; see Babcock, The Valuation of Real Estate, pp 384-385).

So, if examination discloses that rent has been arbitrarily set without regard to the market rental value whether through self-dealing, as, for example, where a landlord and tenant are business affiliates or property is owner-occupied (Woolworth Co. v Commission of Taxation, 26 AD2d 759), or, certainly, where there is any indication of collusion, the rent arrangement will be of little, if any, guidance to sound appraisal.

On the other hand, in arriving at their valuations, assessors may always consider below market rents that result from arm’s length bargaining carried out in good faith. Courts recognize, however, that reliance on contract rents, particularly those involving property subject to below market long-term leases, may yield distorted valuations and that an assessor, therefore, may apply compensatory measures calculated to adjust such income figures to a point at which they become reliable indicators of full value (see People ex rel. Gale v Tax Comm., 17 AD2d 225, supra; Westbury Drive-In v Board of Assessors of County of Nassau, 70 Misc 2d 1077, affd 45 AD2d 821; Matter of Ernst v Board of Assessors of City of Lockport, 58 Misc 2d 504, affd 33 AD2d 655). It was permissible, therefore, for the board of assessors here to try to accomplish that by tempering its use of rental income with leasehold bonuses in amounts representing the differential between the actual rent and the market rent for each of the three stores in question.

In doing so, the board fulfilled its obligation to assess Merrick’s shopping center at full value undiminished by the leases by which the property was burdened. Put another way, all the interests in the property save those assessed separately, such as easements, were to be treated conceptually, for real estate tax purposes, as a single "bundle of rights” (Encyclopedia of Real Estate Appraising [Friedman ed, 1968], p 133). Presumably, to the extent that any of the center’s leases called for below market rents, that fact would be reflected in a lower value of the landlord’s interest and a correspondingly higher value of the tenants’ interests (1 Bonbright, Valuation of Property, pp 495-497). The leasehold bonuses added by the county were designed to take into account the value deriving from the tenants’ interests — a component of full value that it found did not emerge from actual income figures supplied by the landlord. The utilization of a single assessment encompassing both interests, with the tax payable entirely by the landlord, is consonant with this underlying unitary concept of value.

The net result is that a landlord, despite low income occasioned by below market leases, nevertheless remains obligated to pay taxes on the market value of the property taken as a whole. At first blush, this may appear to penalize the unsuccessful entrepreneur for a lack of business acumen. But it must always be remembered that an underlying aim of valuation is to assure that, in providing for public needs, the share reasonably to be borne by a particular property owner is based on an equitable proportioning of the fair value of his property vis-á-vis the fair value of all other taxable properties in the same tax jurisdiction. Otherwise, the landlord who fails to realize the fair potential of his property would, in effect, shift part of his tax burden to the shoulders of his fellow taxpayers.

We recognize that when it developed its shopping area in 1952 and 1953, Merrick may have been required to grant bargain leases to induce nationally known tenants to locate in its center in the expectation that higher rents could be exacted from smaller stores eager to profit from the greater number of patrons the "flagship” stores would draw (see G.R.F., Inc. v Board of Assessors of County of Nassau, 41 NY2d 512, 514, supra). Each of the three key tenants — Food Fair, F. W. Woolworth and National Shoes — is a retail chain organization commanding ready recognition from members of the consuming public. Their leases (and that of one other tenant), in the aggregate, embrace fully 45% of the desirable street level shopping center store area. Besides providing for low rents, the leases negotiated between the three tenants and Merrick lacked escalation clauses affording meaningful protection to the landlord against tax increases or other contingencies. It is not surprising then that the proof showed that during the tax periods in question each of these tenants were paying, for other comparable space in the same county, a prevailing price nearly twice as much.

The fact remains that the advantageous leases were yielded to the three tenants with the landlord’s eyes open and no doubt directed towards its own short or long-range profit. The county was not a party to these plans; nor was it, or is it, a coentrepreneur who was required to share in Merrick’s good or bad fortune. Clearly, the county tax authorities need not depend for valuation purposes on the uncertain results of managerial banes or boons.

For all these reasons it cannot be said that the board’s use of leasehold bonuses was inappropriate. Of course, in arriving at the value of the entire property, if Merrick’s leases with its lesser tenants were at above market rents these should be offset against the below market rentals received from the three flagship tenants. In that connection, in remitting for review of the facts we note that, though the record contains proof that the rentals paid by Merrick’s numerous lesser tenants were not below market, there is no finding as to whether these exceed market and, if so, the extent to which such excess counterbalanced the below market stream of income that flowed from the three major leases to which the bonuses were applied.

Accordingly, the judgment appealed from and the order brought up for review should be reversed and the matter remitted to the Appellate Division for further proceedings as provided by CPLR 5613.

Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur with Judge Fuchsberg; Chief Judge Breitel concurs in result and so much of the opinion as states the rule that the county is entitled to assess the full value of the property regardless of whether the property is burdened by disadvantageous leases.

Judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, and the matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein.

         Pursuant to CPLR 5601 (subd [d]), the county’s present appeal from this latest judgment now brings the Appellate Division’s nonfinal order up for review.


author: Cooke, J.

text:
    The People of the State of New York, Respondent, v William Johnson, Appellant.
    Argued September 15, 1978;
    decided November 2, 1978

      POINTS OF COUNSEL

      Edward J. Nowak, Public Defender (William E. Hasenauer of counsel), for appellant.
    The refusal of the trial court to submit the lesser included offense of criminal possession of a controlled substance in the seventh degree to the jury constitutes reversible error. (People v Malave, 21 NY2d 26; People v Henderson, 41 NY2d 233; People v Law, 41 NY2d 307.)

      Lawrence T. Kurlander, District Attorney (Stephen M. Brent and Sharon P. Stiller of counsel), for respondent.
    The trial court properly refused to charge criminal possession of a controlled substance in the seventh degree as a lesser included offense of criminal sale of a controlled substance in the third degree; there was no reasonable view of the evidence that would support a finding that defendant possessed the heroin but did not sell it. (People v Malave, 21 NY2d 26; People v Law, 41 NY2d 307; People v Henderson, 41 NY2d 233; People v Caldwell, 24 NY2d 797; People v Johnson, 39 NY2d 364.)
   OPINION OF THE COURT

Cooke, J.

William Johnson was convicted, after a jury trial, of criminal sale of a controlled substance in the third degree (Penal Law, § 220.39). The conviction was affirmed, without opinion, by the Appellate Division (55 AD2d 858). On this appeal, defendant contends that the trial court erred in refusing to submit to the jury, following a proper request, the lesser included offense of criminal possession of a controlled substance in the seventh degree (Penal Law, § 220.03). We agree and therefore reverse and direct a new trial.

The events from which this prosecution stems unfolded on the night of October 23, 1973. Conflicting accounts of the incident were offered by the prosecution and the defense. Two witnesses, William Jackson, indicted with the defendant, and John Herritage, a State Police Investigator, testified for the People. Their testimony reveals that at approximately 8:00 p.m. on the night in question, Jackson, while standing on North Street in Rochester, was approached by a confidential informant working with Investigator Herritage. The informant asked Jackson if he knew anyone with any "stuff”. When Jackson responded in the negative, the informant asked for directions to defendant’s residence. Jackson and the informant got into an automobile operated by Herritage and, following a short conversation, the three drove to the intersection of University Avenue and Oxford Street where they located defendant.

Once there, Jackson emerged from the car, approached defendant and stated that the informant wished to purchase "a bundle”, meaning 25 glassine bags of heroin. Agreeing to supply the drugs, defendant arranged to meet the informant at Second Street and Central Park. Herritage, Jackson and the informant then proceeded to the appointed spot and awaited defendant’s arrival. After 10 minutes, Jackson went around the corner to Third Street and found defendant in front of his grandmother’s house. Defendant assured Jackson that he would be at the designated place in a short time, and Jackson relayed this information to Herritage and the informer. When defendant arrived at Second Street and Central Park shortly thereafter in his automobile, Herritage approached and handed him $125, which defendant counted twice. In return, the officer received a bundle of heroin defendant had taken from beneath a child lying on the front seat of his car.

Testifying in his own behalf, defendant related a different version. According to defendant, he had been asked to obtain a quantity of heroin for those accompanying Jackson. Jackson sent him to Fourth Street to procure the drugs from Lorenzo, who lived in a house directly behind that of defendant’s grandmother. Instead of proceeding to Lorenzo’s, defendant went to his grandmother’s house. Sometime later, Jackson arrived with the heroin, gave it to defendant, and reminded him to collect the $125. Defendant then drove to Second Street, where the exchange with Officer Herritage was effected. Not too sure of his recollections, defendant stated that he had thought that Jackson was with him in his automobile and that it was Jackson rather than he who had actually passed the heroin to Officer Herritage.

At trial, defense counsel requested that the court submit to the jury for its consideration the crime of criminal possession of a controlled substance in the seventh degree. The Trial Judge declined. The propriety of the trial court’s ruling is now before us for review (CPL 470.05, subd 2).

Relevant to the issue presented in this case is CPL 300.50, which governs submission of lesser included offenses to the jury. That section prescribes two conditions which must be fulfilled before a Trial Judge is required to charge the jury as to a lesser crime: first, there must be "a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater” (CPL 300.50, subd 1); second, one of the parties must request that the lesser offense be charged (CPL 300.50, subd 2). The request having been made here, we need only consider whether the first element of the standard has been satisfied.

In approaching this question, we are not without guidance as to the meaning and proper application of the statutory language. Thus, it is well settled that a refusal to charge a lesser included crime is warranted only where " 'every possible hypothesis’ but guilt of the higher crime [is] excluded” (People v Henderson, 41 NY2d 233, 236, quoting People v Shuman, 37 NY2d 302, 304). Equally well established is the jury’s freedom "to accept or reject part or all of the defense or prosecution’s evidence” (People v Henderson, supra, at p 236). In applying these rules, moreover, we must view the evidence in a light most favorable to the defendant (People v Shuman, supra, at p 304).

Here the jury had testimony before it indicating defendant had both possessed and sold heroin. Inasmuch as it was free to reject or accept any part of this evidence, the jury might have found defendant guilty of either simple possession or sale of a controlled substance (see People v Jenkins [Law], 41 NY2d 307, 313-314, revg 48 AD2d 228). In such a situation, it cannot be said that every hypothesis "but guilt of the higher crime [was] excluded” (People v Henderson, supra, at p 236), and therefore the trial court should have charged the jury as to the lesser included offense of possession of a controlled substance.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order reversed, etc.

       Of course, the crime for which defendant seeks a charge must qualify as a "lesser included offense”. CPL 1.20 (subd 37) defines a lesser included offense: "When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a 'lesser included offense.’ ” We note in the present case that criminal possession of a controlled substance is within the ambit of this definition (see People v Jenkins [Law], 41 NY2d 307, 313-314).