author: Cooke, J.

text:
    Long Island Rail Road Company, Appellant-Respondent, v Northville Industries Corp., Respondent-Appellant.
    Argued February 8, 1977;
    decided March 24, 1977

      David Cohen, Richard M. Sharfman, James A. Shanman and Charles I. Poret, New York City, for appellant-respondent.

      Leonard H. Moche, Joseph J. Ackell and Harry A. Gottlieb, New York City, for respondent-appellant.
   Cooke, J.

As early as 1962, Northville Industries Corporation, then known as Northville Dock Corporation, had expressed its interest in acquiring a right of way along the trackage of the Long Island Rail Road Company for the installation of a pipeline for the transportation of fuel oil, and possibly gas, in connection with Northville’s storage, terminal and docking facility at Riverhead, Long Island. This proposal was further refined, and, on different occasions, apparently to assure the railroad of its intention to enter upon the project, Northville stressed its desire for "the prompt establishment of an operating pipeline” and, sought the co-operation of the railroad "in speeding the pipeline construction process”. After numerous meetings, the parties entered into a written agreement, dated as of September 1, 1965, under which the railroad granted Northville "the right and privilege to erect, construct, install, use, operate, maintain, repair, renew and remove a pipeline, together with its appurtenances above or below and along and within the limits of the Railroad’s normal right of way * * * along the Railroad’s Main Line from Riverhead, New York, to a point distant not more than three miles west of Brentwood, New York.”

A provision in the agreement characterized it as a license agreement, and not a lease, in explanation of the fact that there would be no reduction in compensation payable by Northville to the railroad by reason of inconvenience, annoyance or loss of business arising from the railroad’s operations or repairs to and physical changes to its properties. Nevertheless, although many of the provisions recognized the paramount rights of the railroad in the maintenance and operation of its business and the subsidiary nature of the rights granted to Northville, the writing did provide, in general terms, that the railroad would not "impair, prejudice, or derogate from the rights granted herein * * * by any sale, lease, surrender, or other disposal” without the written consent of Northville.

Under the agreement, as compensation for the right to erect and maintain the pipeline, Northville agreed to pay the railroad: "(a) $10,000 in advance, covering a 3-year period during which Northville Dock shall, at its sole cost and expense and at no cost to the Railroad, acquire a right of way from its terminals to the railroad rights of way, procure the necessary consents, licenses, franchises, permits, or other authority, construct the pipe line, etc. After the 3-year period, or when construction is completed if sooner than three (3) years, or if any portion of the pipe line becomes operative within the 3-year period, Northville Dock shall pay the Railroad $1 per inside diameter inch per 100 lineal feet of pipe, plus 1# per barrel of throughput, with a guaranteed minimum of $20,000 per year.” A 20-year term was specified, unless sooner terminated by operation of law or as otherwise permitted, except that the amount of compensation to the railroad was to be subject to renegotiation at the request of either party at the end of 10 years. Northville was also given an option to renew the agreement for an additional 20 years.

Cancellation was permitted by Northville, at any time during the first three years of the original term, and by the railroad, if Northville did not complete at least half the pipeline during said three-year period. This three-year period was subject to extension, but in no event for a period longer than six months, by reason of delays due to such causes as accidents, fires, floods, defaults of subcontractors, or any other similar causes beyond Northville’s reasonable control. Significantly, this cancellation clause provided that "if Northville [Industries] does not so cancel during the first three (3) years of the original term [of the agreement], it will be bound thereafter.”

With respect to the acceleration of payments, it was provided that "the whole compensation for the remainder of the term” would "be due and payable” in the event of any one of the following specified occurrences: (1) if Northville, after the first three years of the original term of the agreement, attempted to remove or manifested an intention to remove all the pipeline and its appurtenances from the railroad’s property; or (2) if Northville became insolvent or bankrupt, or (3) made an assignment for the benefit of creditors, or (4) was sold out by any sale under process of law. In addition, provision was made for arbitration of "any disputed question” with respect to "the construction and performance of this agreement, including the rate of compensation as provided herein”.

Upon execution of the agreement in September of 1965, Northville made the initial $10,000 to the railroad required thereunder and began preparations for the construction of the pipeline. Elaborate plans and specifications were prepared and submitted by Northville to the railroad for approval. In March, 1966, Northville requested permission to use a 12-inch diameter pipeline rather than the 8- or 10-inch diameter originally specified, and the railroad consented to amend the agreement accordingly.

Thereafter, Northville became involved in litigation with third parties concerning the construction of the pipeline and the project was delayed. On July 3, 1968, two months before the expiration of the three-year period in which Northville could cancel, it asked for the additional six months permitted for delays for causes beyond its control. In this connection, Northville stated that through March, 1968, it had expended more than $666,826 in preparing and equipping itself for construction. Around this time, Northville also sought an extension of the time, until October 11, 1969, during which it could cancel, but this extension was never formally consented to by the railroad. Without this extension, the period passed within which Northville was permitted to cancel under the agreement. Nevertheless by a letter dated August 4, 1969, Northville described its dissatisfaction with the railroad concerning the requested extension, and stated that it had concluded that the matter could not be adjusted and that it was forced to cancel the agreement. With the dispute thus unresolved, the pipeline was never built along the railroad’s right of way, although in 1973 Northville commenced use of another pipeline which was constructed along a portion of the Long Island Expressway’s right of way.

The railroad began billing Northville for the guaranteed annual minimum of $20,000, but Northville did not pay these amounts. The railroad then brought an action against North-ville seeking not merely the overdue installments of $20,000, but damages in the amount of $4,446,659, based on estimates of the compensation to which the railroad would have been entitled had the pipeline been constructed and put in operation along its right of way.

At Special Term, the railroad moved for an order pursuant to CPLR 3124 to compel Northville to disclose evidence for the purpose of proving damages concerning the volume of oil which would have been put through the pipeline which was the subject of the agreement. This motion was denied.

On the merits, Special Term considered and rejected the railroad’s argument that under the agreement Northville was obligated to build the pipeline and thus liable for damages based on the volume of oil that would have been put through the line had it been laid and functioning. Instead, it construed the agreement as a license whereby the railroad granted Northville permission to construct and operate a pipeline along the railroad’s right of way, without any obligation on the part of Northville to exercise that privilege. The court also rejected the railroad’s argument that, if such an obligation was not expressed in the contract, it should be implied.

With respect to damages, Special Term dismissed so much of the railroad’s complaint which demanded damages for annual installment payments under the agreement allegedly due after April 11, 1973, the date of the commencement of the action. The court determined that the acceleration clause provided for in the agreement was inapplicable to the cancellation by Northville. Moreover, since it had determined that Northville was not obligated to construct and operate the pipeline, it was concluded that the only compensation to which the railroad was entitled was the guaranteed minimum of $20,000 per year. Viewed in this fashion, the agreement was construed as a contract solely for the payment of money, the court reasoning that the doctrine of anticipatory breach had no application to such contracts, thereby disallowing the railroad’s claim for payments not yet due. Finally, since that portion of the complaint which sought installments due after the date of the commencement of the action had been dismissed, it denied as moot Northville’s motion to dismiss so much of the complaint which demanded damages for payments due after August 31, 1975—for which Northville contended there was no enforceable obligation as to compensation because the agreement afforded either party the right to request renegotiation of the compensation to be paid after that date.

On appeal, the Appellate Division modified. In a memorandum, that court noted its approval of Special Term’s denial of the railroad’s motion for disclosure, and stated that under the agreement the railroad could not recover damages of more than the guaranteed minimum of $20,000 per year. In modifying, however, the court declared that it believed the doctrine of anticipatory breach to be applicable in this action and further stated that, since the agreement "sufficiently provided” for the payment of compensation during the last 10 years, the railroad is not limited to damages which allegedly accrued prior to the commencement of the action.

The order of the Appellate Division should be affirmed.

Summary judgment was properly granted in the courts below with respect to the interpretation of the instrument under scrutiny. The intention of the parties is fully determinable from the language employed in the agreement (see 4 Williston, Contracts, § 600, at p 280), and there is no need to resort to evidence outside the written words to determine the intention of the parties. Accordingly, as no question of fact was presented but only one of law—the interpretation of the written agreement—summary judgment was proper (see Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 291).

Proper, too, was the determination that the express terms of agreement did not obligate Northville to construct and operate a pipeline along the railroad’s right of way. The agreement was purely and simply a license arrangement (cf. Lordi v County of Nassau, 20 AD2d 658, 659, affd 14 NY2d 699). To construe various portions of the agreement in such a fashion as to place an obligation on Northville to exercise the privilege granted to it, as urged by the railroad, would be contrary to the obvious intention of the parties as expressed therein.

Equally unpersuasive is the railroad’s argument that even in the absence of an express contractual requirement, North-ville would be impliedly obligated to construct, operate and maintain a pipeline. Of course, a promise may be implied from a fair interpretation of an agreement (see, generally, 5 Williston, Contracts, § 670). Courts have frequently held that a promise, though not expressed, is implied (see, e.g., Ehrenworth v Stuhmer & Co., 229 NY 210, 219). But such an obligation should not be implied in this agreement. Contrary to the assertions of the railroad, this contract is not " 'instinct with an obligation’ ” on the part of Northville to construct and operate the pipeline (cf. Wood v Duff-Gordon, 222 NY 88, 91).

The railroad’s reliance on Genet v President of Delaware & Hudson Canal Co. (136 NY 593) is similarly misplaced. As noted by Special Term below, that case is distinguishable in that there the failure ,to continue operations on the plaintiffs land rendered the land unproductive, whereas here the cancellation by Northville, though harmful to its expectations, is ancillary to the railroad’s business. More importantly, however, in Genet, the court stressed that in implying a promise a court should act prudently and that "a promise can be implied only where we may rightfully assume that it would have been made if attention had been drawn to it” (p 609, citing Dermott v The State, 99 NY 101). That part of the opinion, emphasizing prudent application, has served as the guiding principle in cases thereafter (see, e.g., Wilson v Mechanical Orguinette Co., 170 NY 542, 550-551). So mindful, it may not be rightfully assumed that the parties here intended to require Northville to construct the pipeline. To the contrary, the agreement manifests that had such an obligation been intended, it would have been expressed. The other cases relied on by the railroad are also distinguishable. Accordingly, since no obligation may be implied on the part of Northville to construct and operate the pipeline, the railroad may not recover damages based on estimates of the compensation to which it would have been entitled had Northville exercised its privilege to operate a pipeline.

Since Northville was not obligated to construct and operate the pipeline, the railroad’s damages are limited to the $20,000 per year minimum guarantee set forth in the agreement. In this respect, however, Northville argues that since the agreement provided that either party might request renegotiation at the end of the first 10 years of the 20-year term, the parties did not reach an understanding on the compensation to be paid during the last 10 years of the agreement, and hence no recovery can be had by the railroad for that period. This argument should not be sustained.

This provision did not constitute an agreement to agree. It did not contemplate a situation whereby the price was to be fixed by mutual assent and, if the parties did not agree, the contract would terminate (see St. Regis Paper Co. v Hubbs & Hastings Paper Co., 235 NY 30). Neither is this a situation where the agreement called for compensation in a sum not exceeding a certain dollar amount (see United Press v New York Press Co., 164 NY 406). Hence, these cases, relied on by Northville, are not determinative of the enforceability of this agreement.

The agreement provided a formula for determining compensation based on pipeline dimensions and oil throughput, with a guaranteed minimum of $20,000 per year. True, the amount of compensation was subject to renegotiation at the request of either party at the end of 10 years. This does not mean, however, that after 10 years either party could be relieved of any further obligation simply by refusing to agree on the amount of compensation for the second 10 years. The agreement would not terminate at this point because, contrary to the assertions of Northville, the parties agreed to arbitrate disputes involving compensation for that period. As to North-ville’s argument, it is sufficient to note that the agreement provides for arbitration of "the rate of compensation”, and to conclude that the renegotiation was not arbitrable, merely because the clause relating to renegotiation speaks in terms of the "amount” rather than the "rate” of compensation, would be an unnecessarily technical interpretation, and obviously contrary to the intention of the parties.

The short of it is that the requirement of arbitration precludes termination because of any disagreement over compensation for the second 10 years. Of course, the court cannot know what the arbitrators would have determined had North-ville built the pipeline and thereafter sought renegotiation of the amount of compensation. Nevertheless, the failure of Northville to cancel within the permissible period therefor bound Northville to pay the guaranteed minimum for 20 years, and, in view of the arbitration clause, the potential for renegotiation does not support Northville’s argument as to the agreement’s unenforceability for the second 10 years.

The only remaining issue is whether the railroad is presently entitled to future installments of the guaranteed minimum under the doctrine of anticipatory breach. Under this doctrine, if one party to a contract repudiates his duties thereunder prior to the time designated for performance and before he has received all of the consideration due him thereunder, such repudiation entitles the nonrepudiating party to claim damages for total breach (see, generally, 11 Williston, Contracts, § 1301; 4 Corbin, Contracts, § 959).

The doctrine of anticipatory breach has not generally been applied to all types of contracts, its application being limited ordinarily to bilateral contracts embodying some mutual and interdependent conditions and obligations. Moreover, limitations on the doctrine exist even in the instance of "a contract originally bilateral that has become unilateral and similarly unconditional by full performance by one party” (Restatement, Contracts, § 318; cf. Restatement 2d, Contracts, § 277, subd [1], Tent Draft No. 8). For the doctrine to apply there must be "some dependency of performances” (Restatement, Contracts, § 318, Comment e). For this reason, a party who has fully performed cannot invoke the doctrine even though the other party has repudiated (see Restatement 2d, Contracts, § 277, Comment c, Tent Draft No. 8).

Since the doctrine has evolved as a defense to performance by the injured party, the theoretical basis for not applying it to unilateral contracts or bilateral contracts that have been fully performed by the injured party is that its application is unnecessary to such contracts (see 11 Williston, Contracts, § 1305, p 92; see, also, § 1313, pp 111-112). To this is added the reasoning of Professor Williston, who wrote that since "the whole doctrine was founded on a confusion of a right of action with a defense, it seems undesirable to enlarge the boundaries of the doctrine” to encompass unilateral contracts (§ 1326, p 150). Of a different view is Professor Corbin who criticized the limitations on the doctrine, particularly with regard to the situation where the contract is unilateral simply because the injured party has already performed. In this respect, he characterized as "erroneous [the] idea that the reason for holding an anticipatory repudiation to be a breach of contract is that otherwise the injured party must continue to be ready to perform on his own part” (4 Corbin, Contracts, § 962, pp 864-865). Rather, he suggested that the reasons upon which the doctrine "can actually be sustained are equally applicable to unilateral contracts” (p 865; see, also, Calamari & Perillo, Contracts, § 184, at pp 291-292).

Generally, the courts in most jurisdictions have followed Williston’s views rather than those of Corbin, and have thus limited the doctrine of anticipatory breach to bilateral contracts. An extreme exception is Texas, the courts of which have stated that the doctrine should be applied "without distinction to contracts still to be performed on both sides and those fully executed” and also that "no distinction should be made between contracts to pay money, pure and simple, and other such contracts” (Pollack v Pollack, 46 SW2d 292, 295 [Tex]; accord Pitts v Wetzel, 498 SW2d 27 [Tex]). In our jurisdiction, it was commented sometime ago that the doctrine "is not generally applied to contracts for the payment of money at a future time” and that in this State it seems to be limited to contracts to marry, for personal services and for the manufacture or sale of goods (Kelly v Security Mut. Life Ins. Co., 186 NY 16, 19 [1906]). But this observation did not reflect the full range of thought even then because, before that time, it was recognized that where there are interdependent obligations the doctrine might be applied to money payable under a contract at a future time (see Nichols v Scranton Steel Co., 137 NY 471, 486-488, esp p 487 [1893]; cf. Bernstein v Meech, 130 NY 354, 358 [1891]).

A further limitation on the application of the doctrine of anticipatory breach occurs with respect to independent, as contrasted with interdependent, obligations in bilateral contracts. Such independent promises in bilateral contracts may be treated as separate unilateral obligations, thus preventing the application of the rule to such contracts (see 11 Williston, Contracts, § 1327, p 157; 4 Corbin, Contracts, § 986). A lease is an example of a bilateral contract where obligations are sometimes treated as independent. Perhaps for this reason, the courts of this State have held that "no suit can be brought for future rent in the absence of a clause permitting acceleration” (Maflo Holding Corp. v S. J. Blume, Inc., 308 NY 570, 575, relying on McCready v Lindenborn, 172 NY 400, 408; see, also, International Pub. v Matchabelli, 260 NY 451, 453-454; cf. Hermitage Co. v Levine, 248 NY 333, 337). Some jurisdictions, however, treat a lease as a contract involving interdependent obligations and thus apply the doctrine of anticipatory repudiation to breaches of the covenant to pay rent (see, e.g., South Main Akron v Lynn Realty, 62 Oh L Abs 103, 106 NE2d 325, 329; Hawkinson v Johnston, 122 F2d 724, 730).

Northville contends that the railroad’s "passive role is identical with that of a landlord under a lease.” This characterization neglects both the facts of this case and the law as it has developed. First, this agreement expressly provided that this was to be a license and not a lease, a proposition that would be apparent from the four corners of the agreement even without this express statement. Second, in this area of the law one may not accurately compare a license with a lease, particularly when one considers the fact that a lease was regarded primarily as a conveyance at common law and that the rules with respect to leases and other real estate transactions became settled before the law of mutually dependent promises had developed (see 6 Williston, Contracts, § 890, esp pp 587-588; see, also, 4 Corbin, Contracts, § 986, pp 954-955). Lastly, are the policy considerations regarding leases, which are contracts of far more common occurrence than a license such as the one involved in this case. For these reasons, it cannot be said that the agreement here is governed by the principles applied to leases—a license such as this, though superficially similar, is of a different genre.

In the instant matter, as noted, the railroad is not entitled to damages based on the estimates of pipeline use, and all that remains for the railroad to recover is the guaranteed minimum of $20,000 per year, for the full 20-year term of the agreement. Special Term construed this as a contract solely for the payment of money and reasoned that the doctrine of anticipatory breach has no application to such contracts. For this reason, that court limited the railroad’s recovery to installments due as of the commencement of the action. The recovery should not be so restricted.

The statement is often made that the doctrine of anticipatory breach has no application to contracts for the payment of money only, in installments or otherwise (see, e.g., Kelly v Security Mut. Life Ins. Co., 186 NY 16, supra; McCready v Lindenborn, 172 NY 400, supra; Sholom & Zuckerbrot Queens Leasing Corp. v Forate Realty Corp., 29 AD2d 571; Sinkwich v Drew & Co., 9 AD2d 42, 46; Indian Riv. Islands Corp. v Manufacturers Trust Co., 253 App Div 549, 551). But these words, "contracts for the payment of money only”, by themselves state no principle and are merely descriptive of the means of satisfaction of an obligation. The words employed should not obliterate the principles needed to determine whether the doctrine of anticipatory breach applies. As once remarked: "The root of any valid distinction is not in the difference between money and merchandise or between money and services. What counts decisively is the relation between the maintenance of the contract and the frustration of the ends it was expected to subserve. The ascertainment of this relation calls for something more than the mechanical application of a uniform formula” (New York Life Ins. Co. v Viglas, 297 US 672, 680-681).

The question is whether, at the time of the repudiation, there existed some dependency of obligation (see Restatement, Contracts, § 318, Comment e). If the obligations are interdependent, a claim may lie to recover money payable in the future (see Nichols v Scranton Steel Co., 137 NY 471, 487-488, supra). Whether such an obligation exists on the part of the injured party is, of course, a matter of interpretation of the particular contract, and one that may be subject to differing views (see Federal Life Ins. Co. v Rascoe, 12 F2d 693 [1926], a case twice disapproved by the Supreme Court [see New York Life Ins. Co. v Viglas, supra, at p 679; Mobley v New York Life Ins. Co., 295 US 632, 639], not on the question of whether the contract there involved dependent obligations, but on the ground that in the court’s view the insurers did not, under the circumstances therein, repudiate the policies [see 4 Corbin, Contracts, § 967, at pp 877-879, esp p 879]).

At least in a case such as this, the fact that only money is owed by Northville to the railroad is not determinative. The focus must be on whether the railroad has any obligation from which it needs to be relieved (cf. Central Trust Co. v Chicago Auditorium, 240 US 581, 590-591). Analysis of this agreement leads to the inescapable conclusion that the railroad is obligated to future performance. In order to recover in a future action, the railroad must show that it is still in a condition to perform. It matters not that all that is involved is a use upon the railroad’s property. For example, at a later date the railroad may decide it necessary to abandon that portion of its property containing the right of way, or it may need to sell or lease to one whose use of the property would prevent the construction of the pipeline. In a future suit the argument certainly would be advanced that the railroad is not entitled to recover any future installment because, under these circumstances, it too is in breach of the agreement. This manifests "dependency of performances” and thus the need to apply the doctrine of anticipatory breach.

That the acceleration clause in the agreement did not contemplate the circumstances of the cancellation by North-ville is not a reason to deny recovery to the railroad for the anticipatory breach by Northville. This does not mean the parties intended to foreclose the application of the doctrine. Lawyers drafting an agreement presumably know that an acceleration clause providing for the recovery of future rents is necessary in a lease (see Maflo Holding Corp. v S. J. Blume, Inc., 308 NY 570, supra), and that in a series of notes under one loan, an acceleration clause is necessary in order to recover on notes payable in the future. Of course, a broader clause would have made this case easier of resolution. But the failure to draft a clause contemplating a breach after the time for permissible cancellation by Northville had expired does not preclude the operation of the doctrine of anticipatory breach.

Application of the doctrine of anticipatory breach to this case does no violence to earlier precedents. This was not a simple arrangement for payment of a fixed sum such as an annuity. Neither was it an installment arrangement such as might be used to purchase a business (cf. Indian Riv. Islands Corp. v Manufacturers Trust Co., 253 App Div 549, supra). There is no need for concern here regarding acceleration of the date of maturity as is the concern under those type of arrangements (cf. 4 Corbin, Contracts, § 965). This agreement was a license embodying mutual and interdependent obligations between the railroad and Northville. That the obligations of the railroad were less than those of Northville or, to some, may seem to be of a circumscribed nature, is not a basis for a restrictive, formalistic approach to the question of whether the doctrine of anticipatory breach applies. In this case, therefore, it is not necessary to enlarge the doctrine as far as have some jurisdictions (see, e.g., Pollack v Pollack, 46 SW2d 292 [Tex], supra) or to consider generally whether the doctrine of anticipatory breach should be applicable to unilateral contracts (see 4 Corbin, Contracts, §§ 962-964). The doctrine is flexible enough to permit its application to the railroad’s claim in this case for that portion of the guaranteed minimum not yet due. This does not mean, however, that the railroad is presently entitled to the full $20,000 guaranteed minimum for those annual payments not yet due. Since these amounts will be collected in advance of their due date, the respective installments should be discounted to their present value (see Nichols v Scranton Steel Co., 137 NY 471, 487, supra; 4 Corbin, Contracts, § 964, pp 870-871).

Accordingly, the order of the Appellate Division should be affirmed, without costs, and the question certified answered in the affirmative.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones and Fuchsberg concur; Judge Wachtler taking no part.

Order affirmed, etc.


source: Caselaw Access Project

author: Chief Judge Breitel.

license: Public Domain

text:
    In the Matter of Robert Amato, Appellant, v Benjamin Ward, as Commissioner of the New York State Department of Correctional Services, et al., Respondents.
    Argued February 14, 1977;
    decided March 29, 1977

      Jane E. Bloom, Poughkeepsie, for appellant.

      Louis J. Lefkowitz, Attorney-General (Joseph Henneberry, Samuel A. Hirshowitz and Rhonda Amkraut Bayer of counsel), New York City, for respondents.
   Chief Judge Breitel.

In this proceeding under CPLR article 78, petitioner Amato, a State prisoner, seeks an order directing respondent correctional authorities to restore six months "good time”, that is, time allowed for good behavior in determining eligibility for conditional release (Correction Law, § 803, esp subds 1, 5; Penal Law, § 70.40, subds 1, 3). Supreme Court dismissed the petition, a divided Appellate Division affirmed, and petitioner appeals.

The issue is whether constitutional mandates of due process of law require that a prisoner be given a hearing, with written advance notice of "charges” or bases for denying him a full time allowance, before the authorities may, in the exercise of their statutory discretion, deny him good behavior time based on his whole institutional record. Not involved, although confused by petitioner, is the institutional resolution of particular charges of misconduct against a prisoner. Resolution of such charges may require a hearing on notice with the now usual and accepted procedural rights in New York to confront and to call witnesses, and, in appropriate cases, the right to representation.

The order of the Appellate Division should be affirmed. Due process of law does not mandate a rigid procedure for making good time determinations. Instead, the Constitution requires only that prisoners be not penalized for prison misconduct without notice and hearing on charges of misconduct. Petitioner, indeed, received hearings, more protective than those required by due process of law, on all discrete charges of misconduct in prison. Once those proceedings were concluded prison authorities were entitled to rely upon them as well as everything else in his prison record, good or bad, in granting petitioner less than the maximum allowable good time.

On February 16, 1973, petitioner Amato, having been convicted of manslaughter, second degree, was sentenced to an indeterminate prison term with a maximum of 10 years. Amato was credited, as of the time of sentence, with almost four years of jail time (1,419 days).

Amato’s prison record was marked by altercations with the prison authorities, often resulting in disciplinary action. The unfavorable record started shortly after he was received in the State prison and continued even after his appearance before the time allowance committee. Petitioner was brought before an adjustment committee more than a half dozen times, and, on two occasions, charges were filed against him in a superintendent’s proceeding. In each case, disciplinary sanctions were imposed. In the first superintendent’s proceeding, one of the sanctions imposed was the loss of 60 days good time. That sanction is not an issue in this appeal.

On or about October 1, 1975, as Amato’s conditional release date drew near, he appeared before the prison time allowance committee, in compliance with the applicable regulations (7 NYCRR 261.3 [b], [d]). The committee, after reviewing petitioner’s "extremely poor institutional record”, recommended that he be allowed two years and eight months good time rather than the then allowable maximum of three years and two months. When Amato appeared before the committee again in December, no change in the recommendation was made.

After the committee’s October determination, this proceeding was brought in Supreme Court, Dutchess County, seeking restoration of six months good behavior time. On November 20, 1975, the petition was dismissed, and on May 24, 1976, the Appellate Division affirmed, with two Justices dissenting. Although Amato has since been released on parole, the case presents recurring issues of public interest, and should not be dismissed for mootness (see, e.g., Matter of Beattie v New York State Bd. of Parole, 39 NY2d 445, 446-447).

Petitioner relies on Wolff v McDonnell (418 US 539). In the Wolff case, a Nebraska prisoner established that the procedures followed in Nebraska prison disciplinary proceedings were violative of the due process clause of the Federal Constitution. The Nebraska statute provided that loss of good time was an appropriate sanction for "flagrant or serious misconduct”, and the inmate challenged the Nebraska procedures for determining whether he was, in fact, guilty of such misconduct. The Supreme Court held the Nebraska procedures unconstitutional and set forth minimum standards for the conduct of prison disciplinary proceedings (see, also, Wilkinson v Skinner, 34 NY2d 53, 57-59, and concurring opn, p 63, indicating, before Wolff was decided, that prison disciplinary proceedings must be conducted in a manner consistent with due process).

Petitioner contends, in effect, that Wolff v McDonnell requires that any prison inmate be given a full-scale hearing before a decision is reached on his good time allowance. The argument, however, confuses, if it does not misstate, the Wolff doctrine. In Wolff, a prisoner was charged with misconduct, given short oral notice and an inadequate hearing on the charge, and deprived of good time as a result. The Supreme Court, it is true, stressed the due process rights of prisoners involved in disciplinary hearings. It happens that loss of good time was the disciplinary sanction involved in Wolff, but that is only coincidental. The holding of the Wolff case is narrower than petitioners would have it. The Wolff case held that prisoners brought up on particular charges of misconduct in prison, faced with serious sanctions of whatever kind, are entitled to fair written notice and hearings on those charges (418 US, pp 563-564). It was also said, however, that the Federal Constitution may not be used to impose on the States an inflexible system for enforcing prison discipline (see id., p 563; see, also, Preiser v Rodriquez, 411 US 475, 491-492; Wilkinson v Skinner, 34 NY2d 53, 58-59, supra).

In Wolff, the Supreme Court set forth two basic requirements of due process which must be available to prison inmates charged with misconduct: at least 24 hours advance written notice of the charged violation, and a written statement of the fact finders as to the evidence relied upon and the reasons for the action taken (418 US, pp 563-564). The first requirement is designed to enable the inmate to marshal the facts in his defense and to clarify the charges (id., p 564). The second is to provide a written basis for administrative or judicial review of the actions of the prison authorities, if such review is available (id., pp 564-565).

The court declined to go further and provide prisoners with a right to confrontation and a right to counsel in disciplinary proceedings (id., pp 567-570). Even the right to present documentary evidence and to call witnesses is carefully circumscribed: where institutional safety or correctional goals are at stake, prison officials have discretion to permit such presentation of evidence (id., pp 566-567).

In contrast, disciplinary proceedings in the prisons of this State provide prisoners with procedural protections beyond those mandated by the Supreme Court. Whenever a report of misbehavior is made out, an adjustment committee, made up of three employees, investigates the alleged infraction (7 NYCRR 252.1 [b], 252.2 [a]). The adjustment committee "shall endeavor to obtain from the inmate as full and complete an explanation of his behavior in the situation as possible” (7 NYCRR 252.3 [e]). Then, the committee may either recommend that no action be taken, or require counseling or imposition of relatively minor sanctions to improve the inmate’s behavior (7 NYCRR 252.4, 252.5). The committee may make no formal findings as to whether any violations have occurred (7 NYCRR 252.4 [b] [3]). Since no sanction more severe than the loss of minor privileges can result from adjustment committee action, strict full due process standards need not be met in these informal proceedings (see Wolff v McDonnell, 418 US 539, 571-572, n 19, supra).

If any formal charges are to be made, or if an inmate’s behavior constitutes a danger to life, health, security, or property, a superintendent’s proceeding must be held (7 NYCRR 252.4 [b] [2], [3], 253.1, 253.2). Not only must the inmate be apprised of the charge in writing, but he may choose an employee, from a list, to assist him in the proceedings. Documentary evidence and statements of witnesses gathered by the assisting employee must be presented to the presiding official. (7 NYCRR 253.3.) Moreover, at least one employee with direct knowledge of the incident must be interviewed by the presiding official (7 NYCRR 253.4 [c]). And, of course, a record of the proceedings must be made (7 NYCRR 253.4 [b]). Thus, the superintendent’s proceeding provides vastly greater protection than that required by the Federal Constitution as interpreted in the Wolff case, in that the New York inmate is entitled to representation and to have documentary evidence and statements of witnesses presented to the presiding official.

Finally, provisions are made for review of both adjustment committee decisions and superintendent proceeding dispositions (7 NYCRR 270.1, 270.2; see, also, Matter of Salinas v Henderson, 40 AD2d 939, 940, on the possibility of judicial review if the protective procedures are not followed). This type of administrative review is not required by the Federal Constitution (cf. Wolff v McDonnell, 418 US 539, 565, supra).

Thus, when a time allowance committee is presented with a prison record laden with instances of adjustment committee action and superintendent’s proceedings, it may assume that the prisoner has received, with regard to all discrete charges of misconduct, procedural protections in excess of those mandated by the Wolff doctrine.

The function of the time allowance committee, then, is not the investigation and punishment of particular acts of misconduct, charged or uncharged. Instead the time allowance committee evaluates the inmate’s prison record and recommends the amount of good behavior allowance to be granted not as a punitive sanction but as a standard measuring the progress, capacity, efforts, and achievement by the prisoner during his stay in prison (7 NYCRR 260.3, 261.2). The committee is not to act "in accordance with any automatic rule, but shall appraise the entire institutional experience of the inmate and make its own determination” (7 NYCRR 261.3 [e]).

Of course, since the time allowance committee has before it the inmate’s entire prison record, complete with notations of all charges, hearings, and dispositions, any further hearing would be superfluous. Moreover, since no charges are pending before the time allowance committee, there are no issues* on which a hearing could be held. It would be senseless to require advance notice of violations and a statement of evidence relied upon when there is no new violation and no new evidence. The inmate already knows what violations and evidence were involved in his prison record, since he already has had hearings on those violations, and the dispositions are recorded on his prison disciplinary record.

In summary, the function of the time allowance committee in New York is entirely different from the function of the adjustment committee under the Nebraska prison scheme condemned in Wolff v McDonnell. The Nebraska committee was a disciplinary body; the New York time allowance committee is not (see McGinnis v Royster, 410 US 263, 271-273). The Nebraska committee could withhold good time as a disciplinary sanction; the New York time allowance committee, acting on the basis of the inmate’s prison record supported by the results of prior disciplinary proceedings conducted with due process protections, decides, in its discretion, how much good time an inmate should be awarded (see id., pp 271-276). The Nebraska committee, since it had pending charges before it, had to hold a due process hearing; the New York time allowance committee, with no charges, discrete or general, before it, has no reason to hold a hearing.

In light of the analysis, the result in this case should be obvious. During his time in prison, petitioner misbehaved constantly. He was disciplined by the adjustment committee on numerous occasions and twice his behavior required the intervention of a superintendent’s proceeding. At all of these proceedings, of course, petitioner was afforded all due process rights, and, indeed, many more than were mandated by the court in the Wolff case for punitive disallowances based on acts of serious misconduct.

Faced with petitioner’s rather remarkably bad prison record, the time allowance committee quite reasonably concluded that something less than the maximum possible good time should be allowed. Rather than recommending three years and two months good time, the committee recommended only two years and eight months. Not only was this exercise of the committee’s discretion reasonable, but, under the circumstances, it was very favorable to petitioner.

The reality of petitioner’s attempt in this case is to denude the correctional authorities of discretion in the granting of good time allowances. The attempt flies in the face of studied statutory and regulatory language. It is a penological commonplace that it is necessary to provide positive incentives for good behavior in prison. Good time allowances are one of those incentives, allowances to be based on a prisoner’s overall performance in prison and not on segregated charges of misconduct. No constitutional infirmity in this procedure has been shown either under Wolff (supra) or otherwise.

Thus, none of Amato’s due process rights have been violated. He has had a hearing on each charge of misconduct leveled against him. His prison record has been reviewed by the time allowance committee, and he has been allowed more than 80% of the maximum allowable good time. He is entitled to no more.

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

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.


author: Wachtler, J. Jasen, J. (dissenting).

text:
    The People of the State of New York, Respondent, v Francis Mullin, Appellant.
    Submitted January 14, 1977;
    decided March 29, 1977

      Eugene L. Shapiro, William E. Hellerstein and Lynn W L. Fahey, New York City, for appellant.

      Nicholas Ferraro, District Attorney (Howard W. Newman and Bruce E. Whitney, of counsel), Kew Gardens, for respondent.
   Wachtler, J.

A jury found the defendant, Francis Mullin, guilty of robbery in the first degree, assault in the second degree and criminal impersonation. He was sentenced to concurrent sentences of eight and one-third to 25 years on the robbery count, zero to seven years on the assault charge, and one year for criminal impersonation. The primary issue on this appeal is whether the prosecution’s introduction of testimony concerning Mullin’s prior criminal record calls for a reversal and the ordering of a new trial.

According to the testimony of the People’s witnesses at the trial, on July 29, 1972 the appellant and his codefendant, Thomas O’Connor, rang the doorbell at the complainant’s home in Queens and gained admission to the house by displaying a badge and identifying themselves as detectives from the homicide squad. After some initial inquiries with respect to an alleged homicide, Mullin handcuffed the victim and told him they were taking him into custody. Mullin then drew a gun and pointing it at the victim, announced: "I am no cop. I am taking you off.” Thereafter, Mullin proceeded to torture and assault the victim in an attempt to force him to divulge the combination to a safe located in the home. After this abuse had persisted for approximately one hour without success, Mullin removed approximately $500 from the victim’s pocket and a ring from his hand. The two intruders then fled.

It was the trial testimony of Detective Peano, the officer assigned to the investigation of this crime, which made it clear that Mullin had a prior criminal record. Peano testified that on November 13, 1972 he accompanied the victim to the Bureau of Criminal Identification. The victim viewed approximately 100 photographs and identified one as being that of one of his assailants. On the redirect examination of Peano, the People offered into evidence and had read into the record, without objection from Mullin’s trial counsel, a written report prepared by the detective. The report stated, inter alia, that: "On November 13, of 1972, the complainant accompanied the assigned [Peano] to the Bureau of Criminal Identification and, after viewing photos, positively identified one, Francis Mullin, male, white, 49 years of age, date of birth, August 31, 1923, B No. 200683 as perpetrator number two in this case.”

When the Assistant District Attorney examined Peano with respect to the content of the report, specifically seeking information concerning the significance of the "B number”, the following discourse ensued:

"Q. Now you testified in the last exhibit, People’s 7 in evidence [the report in question] as to a B number.

"A. That’s correct.

"Q. What does that 'B’ mean?

"MR. LUSTHAUS: Objection, your Honor.

"THE COURT: Sustained.

"Q. Did that number exist prior to that report?

"MR. LUSTHAUS: Objection.

"THE COURT: Sustained.

"Q. What is a 'B’ number?

"MR. LUSTHAUS: Objection.

"THE COURT: Sustained.

"Q. Where did you get that information from that is in that report?

"MR. LUSTHAUS: Objection.

"THE COURT: Overruled.

"A. From the Bureau of Criminal Identification.

"MR. KATSORHIS: May I have that, People’s 7? (Handed to counsel.)

"Q. Now, it has on People’s 7 in evidence, item number 3: 'On November 13, 1972, the complainant accompanied the assigned to BCI and after viewing photos, positively identified one, Francis Mullin, male, white, 49 years, date of birth 8-31-23, B-Number 200683 as perpetrator number 2 in this case.’

"Where did this number 'B-200683’ come from?

"MR. LUSTHAUS: Objection.

"THE COURT: Overruled.

"A. From the criminal file. Those who have records.

"Q. Was Mr. O’Connor’s picture in that file?

"A. No.

"Q. Why not?

"MR. LUSTHAUS: Objection.

"THE COURT: Sustained.

"Q. Was Mr. Mullin’s picture in that file?

"A. Yes.

"MR. LUSTHAUS: Your Honor, this has all been asked and answered.

"THE COURT: Yes, objection sustained.

"Q. Are you aware of where the pictures come from that are employed by the Bureau of Criminal Identification?

"MR. LUSTHAUS: Objection.

"THE COURT: Objection sustained, and the jury is instructed not to draw any inference or make any suggestion from these last few questions put to the witness by Mr. Katsorhis.”

Shortly after this colloquy, the People rested. The defense called no witnesses. Thereafter, during the course of his summation, the Assistant District Attorney again made reference to Mullin’s prior criminal history stating: "Let us remember two things, gentlemen—that the defendants in this trial are Francis Mullin and Thomas O’Connor. Now [defense counsel] was very clear in expressing that Thomas O’Connor’s life is in your hands, his fate is in your hands. The man has been working twenty-two years for the Department of Correction. He had to bring that out. Who brought it up? But did he bring in the course of employment or the past history of his codefendant Francis Mullin?”

The defendant argues that the prosecutor deliberately placed the fact of his prior criminal record before the jury and that this was so prejudicial as to require a new trial. The People, on the other hand, contend that the claim of error which the defendant seeks to argue was not properly preserved for appellate review by reason of the failure of defense counsel to object to the detective’s written report when it was originally introduced into evidence. Further, the People contend that the exposure of the existence of defendant’s prior criminal record, while unfortunate, does not justify a reversal of the conviction.

It is axiomatic that the prosecution is prohibited from introducing evidence of the past criminal record of a defendant where, as here, he has not taken the stand in his own behalf or put his character in issue (People v Robbins, 38 NY2d 913; People v Richardson, 222 NY 103, 109; 1 Wigmore, Evidence [3d ed], § 57]). This court has declared that "[inflexibly the law has set its face against the endeavor to fasten guilt upon [a defendant] by proof of character or experience predisposing to an act of crime * * * The endeavor has been often made, but always it has failed” (People v Zackowitz, 254 NY 192, 197).

Turning our consideration first to whether the defendant’s claim of error was properly preserved for appellate review (see CPL 470.05), it is true that the defendant made no objection when the People initially introduced Detective Peano’s report into evidence, nor did he attempt to have deleted the references in the report to the Bureau of Criminal Identification or the B number. We would merely observe, however, that the report standing alone did not place before the jury the fact that the defendant had a criminal record. While it might be said that in today’s society a sophisticated jury might well have realized, or perhaps speculated, that the location of defendant’s photograph in the Bureau of Criminal Identification files indicated prior criminal activity, it is equally if not more conceivable that they would not have been aware of his background based solely on the information appearing in the detective’s report. Indeed, it was developed at trial that Mullin’s codefendant, a corrections officer, was also identified from a photograph shown to the witnesses by the police, yet it is unclear even at this stage of the proceedings whether he too had a criminal history.

The defendant’s criminal record was not directly placed before the jury until the prosecutor deliberately and persistently sought to elicit testimony concerning it from Detective Peano. The defense counsel strenuously and continuously objected to this testimony. We are therefore of the opinion that the issue was sufficiently preserved.

Reaching the merits, there can be no doubt as to the potentially prejudical effect which the revelation of Mullin’s criminal record would have on the jury. We note the manner in which the defendant’s criminal past was forcefully and unrelentingly thrust upon the jury, admittedly without any conceivable justification and over the objections of defense counsel. Then again in his summation the prosecutor hammered home to the jury the fact that it was dealing with a man with a history of criminal activity. It cannot be gainsaid that this testimony and the prosecution’s statements could have served only to mislead and prejudice the minds of the jurors and distract them from the issues and evidence upon which they were to make their determination (see People v Montanez, 41 NY2d 53, 58-59; People v Sharp, 107 NY 427, 61). Nor can it be said that this taint was sufficiently dissipated by the trial court’s attempt to have the jurors dismiss these statements from their minds. In the jury’s eyes these references to the defendant’s criminal background may have made "the difference between the trial of a man presumptively innocent of any criminal wrongdoing and the trial of a known convict” (United States v Reed, 376 F2d 226, 228).

We conclude therefore that the order of the Appellate Division should be reversed and a new trial ordered.

Jasen, J. (dissenting).

I dissent and vote to affirm the order of the Appellate Division.

At the trial, the investigating officer, Detective Peano, testified that he had accompanied the complainant to the Bureau of Criminal Identification where, after viewing approximately 100 photographs, the complainant identified the defendant as one of his assailants. As noted by the majority at the Appellate Division, defense counsel actually elicited many of the details of this photographic identification in his cross-examination of the witness. (51 AD2d 558.) On redirect examination, the prosecutor introduced into evidence, without any objection whatsoever from defense counsel, a written report on the identification prepared by Detective Peano. This report stated that Detective Peano had accompanied the complainant to the Bureau of Criminal Identification and that the complainant, after viewing photographs, had "positively identified one, Francis Mullin, male, white, 49 years of age, date of birth, August 31, 1923, B No. 200683 as perpetrator number two in this case.”

The prosecutor then sought to clarify for the jury’s edification certain material contained in the report. An attempt to draw out the meaning of a "B number” was thwarted when the court sustained defense objections to the questions. It was established, however, that the information contained in the report had come from the Bureau of Criminal Identification. More specifically, Detective Peano was permitted to state that the "B number” was obtained from the "criminal file”—that is, from "[t]hose who have records.” Defense counsel did not object when the prosecutor asked the witness whether a codefendant’s photograph was in the same file. The witness answered that such a photograph was not in the file and the court refused to permit the prosecutor to inquire into the reasons for its absence. Moreover, the court ruled that the prosecutor could not ask the witness where the Bureau of Criminal Identification obtained the photographs in its files. Further, the jury was instructed "not to draw any inference or make any suggestion from these last few questions”. When the matter was touched upon in the prosecutor’s summation, the court sustained a defense objection and directed the jury to disregard the prosecutor’s remarks and to dismiss them from its mind.

Admittedly, it was error to place before the jury evidence of the defendant’s prior criminal record since he had not testified and his character had not been placed in issue. (People v Robbins, 38 NY2d 913.) Yet, this error was not preserved for our review. Failure to object to the receipt of evidence at a time when the court had an opportunity to effectively exclude such evidence precludes the defendant from raising any claim of error with regard to the admission of the evidence. (CPL 470.05, subd 2; People v Robinson, 36 NY2d 224, 228-229.) Thus, objections to the prosecutor’s additional, clarifying questions do not suffice to raise the issue since, by that time, the fact of defendant’s prior record had already been brought to the jury’s attention.

Significantly, no additional information was brought out by the prosecutor’s subsequent inquiry. Over objection, the witness did state that the information in his report, as well as the "B number”, emanated from criminal records. However, this information had already been presented to the jury without objection. In short, by the time defense counsel objected, the critical information had already been imparted to the jury. The jury knew that the defendant’s photograph had been selected from those contained in criminal files. Moreover, defense counsel did not object when the prosecutor asked the witness whether the codefendant’s photograph was in the same file.

In my view, the trial court did not err when it permitted the witness to repeat facts already placed in evidence without objection. The court carefully sustained objections to questions designed to bring out new matter. In addition, the court cautioned the jury not to draw any adverse inferences from the series of questions put by the prosecutor to which objections were sustained. As for the prosecutor’s summation, the majority does not consider that the court immediately sustained defense counsel’s objection and directed the jury to disregard the remarks.

Most fundamental, I believe that even if error was committed, such error was entirely harmless. Defendant was positively identified by the complainant several times. The defendant had repeatedly tortured the victim from close range in the victim’s bright, sun-lit living room. Certainly, there was not the slightest doubt in the complainant’s mind that the defendant was his assailant. Secondly, the victim’s neighbor, a police officer, specifically identified the defendant as the man he saw leave the victim’s premises at the time the crime was committed. The neighbor also had seen the defendant walk "right by” him on the street just a few hours before the victim was assaulted. In view of the strong, positive identifications of the defendant as the culprit by two eyewitnesses, with ample time and lighting for accurate observation, I am drawn to the inescapable conclusion that the defendant’s conviction was supported by overwhelming evidence. Under these facts and circumstances, the claims asserted by the defendant are literally trivial and quite without undue prejudice. Even under the most stringent test for harmless error, defendant’s guilt was established beyond a reasonable doubt. (Chapman v California, 386 US 18; People v Crimmins, 36 NY2d 230.) I believe that the defendant received a fair trial and that there is no valid basis for disturbing his conviction.

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

Order reversed, etc.


author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v Sebastian Biondo, Also Known as Benny, Appellant.
    Argued February 18, 1977;
    decided March 31, 1977

      Gerald J. Callahan, John F. Middlemiss, Jr., and Leon J. Kesner, Riverhead, for appellant.

      Henry F. O’Brien, District Attorney (Charles M. Newell of counsel), Riverhead, for respondent.
   Wachtler, J.

After a jury trial the defendant, Sebastian Biondo, was convicted of two counts of criminal usury (Penal Law, § 190.40) and was sentenced to a six-month term of imprisonment. On this appeal he asserts that the trial court committed reversible error in refusing to allow his challenge for cause of one of the members of the jury under former Code of Criminal Procedure (§ 376, subd 2). He also argues that certain testimony elicited by the prosecutor in the presence of the jury, concerning an uncharged crime of a similar nature, requires a reversal of his conviction.

During the course of the jury selection, Mr. Bogatin, defendant’s trial cousel, challenged the first juror for cause. Counsel informed the court that the juror, Paul J. Lissandrello, Jr., and his father were real estate brokers with an office in the vicinity of Mr. Bogatin’s office and that they had had business dealings with Mr. Bogatin. The prospective juror and Mr. Bogatin had also met at several political and social affairs. Finally, and perhaps more important, Mr. Lissandrello’s father-in-law was an Assistant District Attorney in the Suffolk County District Attorney’s office and had presented and obtained the indictment against Biondo from the Grand Jury.

Mr. Bogatin then challenged the prospective juror for cause claiming that these elements constituted actual bias under the statute. The District Attorney accepted the facts as stated but argued that they were insufficient to establish the bias claimed. At this point, the trial court briefly examined the prospective juror concerning his fitness to sit in the instant case, asking: "Once again * * * do you feel in view of what has been said here, that you can sit as a juror, and consider only the evidence adduced before you in this case and render a fair and impartial decision as to the evidence, independent of your background?” The juror responded "I do” and the court then denied the challenge for actual bias.

Under the statute in effect at the time of the trial (Code Crim Pro, § 376, subd 2), a juror could be disqualified on the basis of actual bias "[f]or the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that such juror cannot try the issue impartially and without prejudice to the substantial rights of the party challenging”. The statute also provided, however, that the taint of "actual bias” could be removed if the prospective juror "declare on oath, that he believes that such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence, and the court is satisfied, that he does not entertain such a present opinion or impression as would influence his verdict” (Code Crim Pro, § 376, subd 2; see People v Genovese, 10 NY2d 478, 481-482).

Biondo argues that the requirements of the expurgatory oath called for by the statute were not met. This same argument was extensively treated by this court in our recent decision in People v Culhane (33 NY2d 90, 106-109). In Culhane (p 106), we noted that "although we have held that '[i]t is not necessary that the juror * * * should swear in the very words of the statute’ People v. Martell, 138 N. Y. 595, 600), we have consistently demanded a strict adherence to the substance of the statute” (see People v Casey, 96 NY 115, 122).

In order to satisfy the statutory requirements, the prospective juror must expressly state that his prior state of mind concerning either the case or either of the parties will not influence his verdict, and he must also state that he will render an impartial verdict based solely on the evidence (People v Wilmarth, 156 NY 566, 569). Further, the juror’s oath must be unequivocal (People v McQuade, 110 NY 284, 301).

We are of the opinion that Mr. Lissandrello’s unequivocal statement of his belief in his ability to "consider only the evidence adduced before [him] in this case and render a fair and impartial decision as to the evidence” conformed to the substantive statutory requirements and sufficiently dispelled any taint which might have been suspected as a result of the juror’s tangential connection with various people associated with the case. We hold, therefore, that it was not error when the trial court refused to disqualify the juror.

We turn next to the issue raised with respect to the testimony relating to a similar but uncharged crime. In the course of the People’s direct case, testimony was introduced that the defendant had offered another individual, Charles Malinowski, a usurious loan identical in form and interest to the one which was the subject of one of the counts of the indictment upon which the defendant was being tried. Defense counsel moved for a mistrial. The trial court denied the motion but immediately instructed the jury to "erase it from your minds as far as any effect it has upon the present case. Ignore it. Forget it. Pay no attention to it.” The court then instructed that the testimony be stricken from the record.

The defendant contends that the introduction of this testimony was merely an attempt to prejudice the jury by showing that the defendant had a criminal disposition. The People, on the other hand, argue that the introduction of the testimony was entirely proper. They note that defense counsel, in his opening statement, remarked to the jury that the evidence at trial would merely show a loan between two people ignorant of both the law and accepted business practices. Hence, the People argue, the testimony of other similar acts was properly admissible to rebut the anticipated defense of lack of a guilty intent or knowledge (see People v Green, 35 NY2d 437, 442; People v Gerks, 243 NY 166, 170; People v Molineux, 168 NY 264, 291-294).

While it is a well-established principle that "[i]n a very real sense a defendant starts his life afresh when he stands before a jury, a prisoner at the bar” (People v Zackowitz, 254 NY 192, 197; People v Molineux 168 NY 264, supra), it is quite conceivable that it would have been proper here for the prosecutor to have introduced the testimony in question after having heard the opening remarks of defense counsel. The trial court, however, ruled that the testimony was improper, and, in light of the prompt curative instructions to the jury to disregard it and the overwhelming evidence of guilt, we can find no basis for disturbing the judgment of conviction.

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

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

Order affirmed.


text:
    Town of Black Brook, Respondent, v State of New York et al., Appellants.
    Argued February 9, 1977;
    decided March 31, 1977

      Louis J. Lefkowitz, Attorney-General (Murray Susswein, Ruth Kessler Toch and Stanley Fishman of counsel), Albany, for appellants.

      Robert Rosenthal, Monsey, and Louis P. Meconi, Plattsburgh, for respondent.
   Chief Judge Breitel.

Plaintiff Town of Black Brook, one of numerous localities situated in the Adirondack Park region, seeks judgment, against the State, the agency, and related officials, declaring that the Adirondack Park Agency Act (Executive Law, art 27) violates the home rule provisions of article IX of the State Constitution. The appeal arises on defendants’ motion to dismiss the complaint for the town’s lack of standing to attack the constitutionality of the State statute. Special Term dismissed the complaint; the Appellate Division reversed; and defendants appeal.

The issue is whether a local government has standing to challenge an enactment of the State Legislature as violative of the home rule protection afforded local governments in article IX of the Constitution.

The order of the Appellate Division should be affirmed. (While the Appellate Division correctly held that plaintiff town has standing to bring the action, the complaint should probably be dismissed on the merits on remittal for the reasons stated in Wambat Realty Corp. v State of New York, 41 NY2d 490, decided herewith.) Ample and respected precedent establish that a local government is without standing to attack the constitutionality of State legislation affecting its powers. Where, however, the contention of the local government is that the statute violates the home rule guarantees of article IX of the Constitution, there should be a limited exception. A contrary result would frustrate the purpose of article IX, the promotion of strong local government.

Plaintiff is one of the many local governments in the vast Adirondack Park region whose zoning and land planning powers have been subordinated to the comprehensive land use and development plan of the Adirondack Park Agency Act (Executive Law, art 27). The constitutional issue raised here is discussed at length in Wambat Realty Corp. v State of New York, a companion case brought by a private owner and would-be developer of land in the Town of Black Brook (41 NY2d 490, supra). The issue of standing nevertheless remains in this case, although the determination on the merits is foredoomed by the result in the companion case.

The general rule of law is that a political subdivision of the State may not challenge the constitutionality of an act of the State Legislature restricting its governmental powers (e.g., Black Riv. Regulating Dist. v Adirondack League Club, 307 NY 475, 487-489, app dsmd 351 US 922; County of Albany v Hooker, 204 NY 1, 9-10; compare Board of Educ. v Allen, 27 AD2d 69, 71, affd on other grounds 20 NY2d 109, affd 392 US 236, with 27 AD2d 69, 74 [concurring opn], and 20 NY2d 109, 118 [dissenting opn per Van Voorhis, J.]; cf. Matter of Jeter v Ellenville Cent. School Dist, 41 NY2d 283, 287, for an explication of the right of units of municipal government to litigate against the State on issues other than challenges to the constitutionality of statutes and the absence of a right, generally, to challenge the constitutionality of statutes affecting them). The attributed principle underlying this well-settled doctrine has been often restated. A local government is merely a political subdivision created by the sovereign State. As such, it exercises its powers subject to the direction and control of the State, and impairment of those powers raises no constitutional issue. (E.g., Black Riv. Regulating Dist. v Adirondack League Club, supra, p 487; County of Albany v Hooker, supra, pp 9-10; Board of Educ. v Allen, 27 AD2d 69, 71, supra.) Undiscriminating application of the general rule to the instant case, however, would undermine the home rule protection afforded local governments in article IX of the Constitution, by subverting the very purpose of giving the local governments powers which the State Legislature is forbidden by the Constitution to impair or annul except as provided in the Constitution (see NY Const, art IX, § 2, subd [b], par [1]; § 3, subd [a]).

In securing to all local governments certain "rights, powers, privileges and immunities”, the "bill of rights” of the home rule article laid the groundwork for stronger and more effective local government (NY Const, art IX, § 1; Public Papers of Governor Nelson A. Rockefeller, 1962, pp 824-825). The new article, adopted in 1963, broadened the powers already enjoyed by cities, counties, and larger villages, and, for the first time, granted home rule power to towns and smaller villages (compare NY Const, art IX, with NY Const of 1938, art IX). Safeguarding the guarantees and protections of article IX is not the concern only of private persons, like the landowner in the companion case (supra). Since much home rule controversy stems from tensions of a political nature, the local government has a direct political interest in ensuring the preservation of its home rule power, regardless of whether a violation of the home rule power affects anyone else.

When, indeed, a local government's claim is based on one of the protections of article IX, the principle underlying the otherwise general rule prohibiting it from questioning legislative action affecting its powers is no longer applicable. For, when a home rule challenge is brought, the powers the locality is seeking to protect are not suffered at the will of the State Legislature, but directly and specifically guaranteed by the Constitution.

It is reasonable, therefore, that when an act of the State Legislature is alleged to have encroached upon the powers of a locality in violation of the home rule article, the standing doctrine may not impede the local government from asserting its political rights, rights directly and specifically provided in article IX. The result is not, as suggested by the Appellate Division, compelled by any recent relaxation of the law of standing; it follows analysis of the purposes of the home rule article and the principles underlying the general standing doctrine. Nor does it work a significant erosion of the general standing rule; all that is recognized is a discriminating exception available when article IX is in issue.

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

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, without costs. Question certified answered in the affirmative.


author: Chief Judge Brextel.

text:
    Wambat Realty Corp., Appellant, v State of New York et al., Respondents.
    Argued February 9, 1977;
    decided March 31, 1977

      Robert Rosenthal, Monsey, and Bradford H. Brinton, Keeseville, for appellant.

      Louis J. Lefkowitz, Attorney-General (Murray Susswein, Ruth Kessler Toch and Stanley Fishman of counsel), Albany, for respondents.

      N. Earle Evans, Jr., and John S. Ferguson, Syracuse, for the Town of Altamont and others, amici curiae.

   Chief Judge Brextel.

This is a declaratory judgment action brought against the State, the agency, and related officials to challenge the Adirondack Park Agency Act (Executive Law, art 27) as violative of the home rule protection afforded local governments in article IX of the Constitution. Plaintiff, private owner and would-be developer of more than 2,200 acres of land in the Adirondack Park region, appeals directly from a judgment at Special Term declaring the act valid on summary judgment (see NY Const, art VI, § 3, subd b, par [2]; CPLR 5601, subd [b], par 2).

The issue is whether comprehensive zoning and planning legislation enacted by the State Legislature to ensure preservation and development of the resources of the Adirondack Park region, without re-enactment at a second session, is invalid because it encroaches upon the zoning and planning powers of local governments.

There are two subsidiary issues. The first is of long standing in the area of home rule: whether the subject matter of a challenged act, in the instant case the future of a cherished regional park, is a matter of State concern. Put another way, the first subsidiary issue is whether the subject matter relates to "other than the property, affairs or government of a local government” and is thus within the powers which the home rule article expressly reserves to the State (see NY Const, art IX, §3, subd [a], par [3]). The second subsidiary issue is engendered by the specific provisions of the home rule article adopted in 1963, namely, whether, in directing enactment of a Statute of Local Governments and in requiring that powers granted under that statute be diminished only by legislation enacted and approved in two successive legislative sessions, the home rule article has qualified the Legislature’s power to act even in areas otherwise of recognized State concern.

There should be an affirmance. To categorize as a matter of purely local concern the future of the forests, open spaces, and natural resources of the vast Adirondack Park region would doubtless offend aesthetic, ecological, and conservational principles. But more important, such a categorization would give a substantially more expansive meaning to the phrase "property, affairs or government” of a local government than has been accorded it in a long line of cases interpreting successive amendments to the home rule article. Nor is there any support for the proposition that powers granted under the Statute of Local Governments may not be encroached upon or even superseded by ordinary legislative enactment where matters of State concern are involved. The double enactment procedure required by article IX for withdrawal or restriction of powers granted under the statute was intended to afford localities protection from hasty and ill-considered legislative judgments. It was not, however, designed as a rigid impenetrable barrier to ordinary legislative enactments in matters of State concern.

The land owned by plaintiff Wambat Realty is situated in the Town of Black Brook, one of numerous local governments within the area known as the Adirondack Park (see ECL 9-0101, subd 1). Although Wambat’s proposed land development project, "Valmont Village”, was permissible under the preexisting zoning and planning resolutions of the town, in 1971 the Adirondack Park Agency Act was adopted (L 1971, ch 706). Under the act plaintiff was required to seek approval for its project from the Adirondack Park Agency, created by the act to fashion a plan for future use of the public and private lands within the park region (Executive Law, §§ 803, 804, 809, subd 2). Shortly after receiving a "Notice of Project Application Incompletion” from the agency, Wambat instituted this action for a declaratory judgment challenging the act’s validity.

Of particular importance to plaintiff’s contention are the 1973 amendments to the act (L 1973, ch 348), which include adoption of the Adirondack Park land use and development plan and authorization for the filing of an official plan map (Executive Law, § 805, subds 1, 2). Plaintiff argues that these provisions, which set forth a comprehensive zoning and planning program for all of the public and private lands within the park, together with other restrictions on local land use contained in the act, unconstitutionally deprive the Town of Black Brook of its own zoning and planning powers. A similar action had been brought earlier by the Town of Black Brook, but disposition on the merits was delayed by objections to the town’s standing to question, on constitutional grounds, an act of the State Legislature with respect to local powers (see Town of Black Brook v State of New York, 41 NY2d 486, decided herewith).

The fulcrum for plaintiff’s contention is section 2 of article IX of the Constitution, which directs the Legislature to enact "a statute of local governments granting to local governments powers including but not limited to those of local legislation and administration in addition to the powers vested in them by this article. A power granted in such statute may be repealed, diminished, impaired or suspended only by enactment of a statute by the legislature with the approval of the governor at its regular session in one calendar year and the re-enactment and approval of such statute in the following calendar year” (subd [b], par [1]). This constitutional direction, part of the 1963 amendment to the entire home rule article, was implemented by the Legislature in 1964 (L 1964, ch 205).

Key to plaintiff’s contention are subdivisions 6 and 7 of section 10 of the statute, which grant to cities, villages, and towns "the power to adopt, amend, and repeal zoning regulations” and to all local governments the "power to perform comprehensive or other planning work relating to [their] jurisdiction.” Plaintiff urges that since the Adirondack Park Agency Act diminishes, if it does not totally negate, the Town of Black Brook’s zoning and planning powers, powers expressly granted to the town under the quoted provisions of the Statute of Local Governments, the Agency Act to be valid must have been enacted and re-enacted in two successive legislative sessions.

Defendants, on the other hand, counter that the home rule article’s grant of powers to local governments is not absolute, but qualified. In pertinent part, section 3 of article IX provides:

"(a) Except as expressly provided, nothing in this article shall restrict or impair any power of the legislature in relation to:

* * *

"(3) Matters other than the property, affairs or government of a local government.”

The reservation of power is largely repeated in section 11 of the Statute of Local Governments (subd 4). Defendants’ response to Wambat’s contention is, in short, that the subject matter of the Agency Act relates to "other than the property, affairs or government of a local government.”

The term "property, affairs or government” of a local government, as constitutional terminology in defining home rule powers, is not new, but dates from 1894 (see NY Const of 1894, art XII, § 2, as amd 1923, §§ 2, 4; NY Const of 1938, art IX, § 11). The terminology, it is true, has been the subject of recurring controversy (see, e.g., Admiral Realty Co. v City of New York, 206 NY 110, 139-140; Adler v Deegan, 251 NY 467, 471, mot for rearg den 252 NY 574; County of Orange v Metropolitan Transp. Auth., 71 Misc 2d 691, 703, affd 39 AD2d 839; see, generally, New York State Constitutional Convention Committee [1938], Problems Relating to Home Rule and Local Government, vol XI, pp 34-43). Emerging, however, from that controversy is one definitive principle: that a proper concern of the State may also touch upon local concerns does not mean that the State may not freely legislate with respect to such concerns (see Adler v Deegan, 251 NY 467, 491 [concurring opn Cardozo, Ch. J.], supra; Town of Brookhaven v Parr Co. of Suffolk, 76 Misc 2d 378, 380-381, mod on other grounds 47 AD2d 554). Restated, the phrase "property, affairs or government” of a locality has not served to paralyze the State Legislature where to a substantial degree, in depth or extent, a matter of State concern is involved (see Manes v Goldin, 400 F Supp 23, 27-28 [Judd, J.], affd 423 US 1068).

Thus, in the decisively enlightening case of Adler v Deegan, the court rejected a home rule challenge to the then Multiple Dwelling Law even though the statute treated only with housing in New York City (251 NY 467, 477-478, supra). So, too, in Bugeja v City of New York, it was held that there was no home rule impediment to the Legislature’s authorization for the issuance of serial bonds to cover New York City’s pension and retirement liabilities (24 AD2d 151, 152 [Hopkins, J.], affd 17 NY2d 606). And, more recently, notwithstanding its encroachment upon village zoning powers, the Urban Development Corporation statute was held to have been validly enacted in Floyd v New York State Urban Dev. Corp. (33 NY2d 1, 6-7).

It mattered not that in each of these cases there was encroachment upon local concerns; the vital distinction was that the subject matter in need of legislative attention was of sufficient importance to the State, transcendent of local or parochial interests or concerns. In Adler, it was public health (Adler v Deegan, supra, pp 477-478). In Bugeja, the continuance of a sound civil service system (Bugeja v City of New York, supra, p 152). And in Floyd, the need for expanded housing for the people of the State (Floyd v New York State Urban Dev. Corp., supra, p 7).

Turning now to the Adirondack Park Agency Act, application to it of these principles leads inexorably to its validity. Of course, the Agency Act prevents localities within the Adirondack Park from freely exercising their zoning and planning powers. That indeed is its purpose and effect, not because the motive is to impair home rule, but because the motive is to serve a supervening State concern transcending local interests. As ably explained by Mr. Justice James Gibson at Special Term, preserving the priceless Adirondack Park through a comprehensive land use and development plan is most decidedly a substantial State concern, as it is most decidedly not merely 119 separate local concerns (see Adirondack Park Agency Act, Executive Law, § 801; Governor’s Memorandum on Approval, NY Legis Ann, 1973, p 302). All but conclusive of this aspect of the issue is the constitutional and legislative history stretching over 80 years to preserve the Adirondack area from despoliation, exploitation, and destruction by a contemporary generation in disregard of the generations to come (see NY Const of 1894, art VII, § 7; 3 Lincoln, Constitutional History of New York, pp 391-454).

Plaintiff argues that the Agency Act, unlike legislation previously upheld against home rule attacks, does not relate to the life and health of New York’s people, and is therefore distinguishable. In the face of increasing threats to and concern with the environment, it is no longer, if it ever was, true that the preservation and development of the vast Adirondack spaces, with their unique abundance of natural resources— land, timber, wildlife, and water—should not be of the greatest moment to all the people of the State. These too relate to life, health, and the quality of life. Indeed, in a larger perspective, it is the teaching of the latter decades that ecological concern with the oceans and the continents has ceased to be a matter only of littoral and national concern.

Nor is there any merit to plaintiff's argument that legislation dealing with issues of State concern must, unless life or health is involved, look for its source to a particular provision in the Constitution. While some of the legislation previously sustained against home rule challenges was indeed rooted in some constitutional provision, the analysis in the precedents does not indicate any absolute need for explicit constitutional authority (see, e.g., Floyd v New York State Urban Dev. Corp., 33 NY2d 1, 6-7, supra; Matter of Freedman v Suffolk County Bd. of Supervisors, 29 AD2d 661, affd 25 NY2d 873; Bugeja v City of New York, 24 AD2d 151, 152, affd 17 NY2d 606, supra; Town of Brookbaven v Parr Co. of Suffolk, 76 Misc 2d 378, 380-381, mod on other grounds 47 AD2d 554, supra).

In sum, the Adirondack Park Agency Act, addressed to an issue of substantial State concern, relates to "other than the property, affairs or government of a local government.” That, however, does not end the matter. For plaintiff contends that with adoption of the 1963 home rule amendment, in particular its direction that a Statute of Local Governments be enacted, the powers reserved to the Legislature have been qualified even in areas of recognized State concern.

Plaintiff’s argument may be put briefly. It accepts that under section 3 of article IX matters relating to "other than the property, affairs or government of a local government” are reserved to the State (subd [a], par [3]). But, it urges that just as subdivision (a) of section 3 limits the powers otherwise granted local governments, so too, the powers reserved to the State in subdivision (a) of section 3 are not unqualified. For, subdivision (a), which enumerates the reserved powers, is not absolute. It begins "(a) Except as expressly provided, nothing in this article shall restrict or impair any power of the legislature”. Plaintiff urges, therefore, that the opening provision, "Except as expressly provided”, refers, among other things, to the zoning and planning powers granted under the Statute of Local Governments, subject to State legislation, even in matters of State concern, only if such legislation has been enacted at two legislative sessions.

While plaintiff’s reliance on the ricochet of exceptions permeating article IX and the Statute of Local Governments is ingenious, upon analysis it fails of its purpose.

Undoubtedly the 1963 home rule amendment was intended to expand and secure the powers enjoyed by local governments (see NY Const, art IX, § 1 [bill of rights for local governments]; Public Papers of Governor Nelson A. Rockefeller, 1962, pp 824-825). In particular, the direction to enact a Statute of Local Governments, including the innovative double enactment procedure to impede encroachment on the granted local powers, was expressly aimed at providing "a reservoir of selected significant powers” (Memorandum of Office for Local Government, NY Legis Ann, 1963, p 223; see State of New York Office for Local Government, Local Government Seminar Notebook Materials [1964], Home Rule, p 12). But, neither the history of the amendment as a whole nor the post-1965 cases involving home rule support plaintiff’s effort to subordinate the powers reserved to the State in section 3 to the powers granted localities under the Statute of Local Governments (see, e.g., Town of Brookhaven v Parr Co. of Suffolk, 76 Misc 2d 378, 380-381, mod on other grounds 47 AD2d 554, supra; New York Temporary State Comm on the Constitutional Convention, Local Government [1967], p 80; Note, Home Rule and the New York Constitution, 66 Col L Rev 1145, 1152; see, also, 1 Anderson, New York Zoning Law and Practice [2d ed], § 3.03, p 82).

Moreover, in the reservation of powers provision of the Statute of Local Governments itself, there is no qualification analogous to the provision prefacing subdivision (a) of section 3 of article IX, upon which plaintiff’s whole contention is founded. Instead, section 11 of the Statute of Local Governments directly states:

"The legislature hereby excludes from the scope of the grants of powers to local governments in this statute and reserves to itself the right and power to enact any law described in this section notwithstanding the fact that it repeals, diminishes, impairs or suspends a power granted to one or more local governments in this statute:

* * *

"4. Any law relating to a matter other than the property, affairs or government of a local government.”

Also significant is the term used to describe the powers reserved to the State. The drafters did not invent a new arrangement of words; they imported into the new article the old phrase "property, affairs or government” of a local government. It is unlikely that a term of art so heavily laden with the judicial gloss of the pre-1963 cases (supra) favoring the State’s power would have been used had State concerns been contemplated to be subordinate to local powers granted under the Statute of Local Governments.

Finally, and most important, the interpretation of article IX which plaintiff urges upon the court was rejected in Floyd v New York State Urban Dev. Corp. (33 NY2d 1, 6-7, supra). In Floyd, as in the instant case, local zoning powers were encroached upon by a State statute enacted at a single legislative session. Not only did the court reject the home rule challenge, but in doing so it reflected the untrammeled primacy of the Legislature to act, as it always had, with respect to matters of State concern (id.).

The short of the matter is that neither Constitution nor statute was designed to disable the State from responding to problems of significant State concern. In this case the controversy is between the State and the would-be developer of land for profit, and, in the companion case (Town of Black Brook v State of New York, 41 NY2d 486, supra, decided herewith), between the State and a town, which understandably seeks to promote its own development, even, if necessary, at the expense of regional planning for the benefit of all the people and future generations. Such a controversy is not resolvable by the principles designed to encourage strong, decentralized, local government in matters exclusively of local concern and to restrain the State from paternalistic interference with local matters. The issue is much larger. It is whether the State may override local or parochial interests when State concerns are involved. That issue is, and has been, resolved in favor of State primacy. The price of strong local government may not be the destruction or even the serious impairment of strong State interests. Both article IX of the State Constitution and the Statute of Local Governments make patently clear that that is how the issue should be resolved. For that reason there appear the multiplication of provisos and exceptions in article IX and in the Statute of Local Governments. They are not the product of clumsy draftsmanship but of a fine-tuned sensitivity to the difficult problem of furthering strong local government but leaving the State just as strong to meet the problems that transcend local boundaries, interests, and motivations.

Accordingly, the judgment at Special Term should be affirmed, with costs.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Judgment affirmed.