author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v William A. Lucarano, Appellant. The People of the State of New York, Respondent, v Rufus Walker, Appellant.
    Argued January 3, 1984;
    decided February 21, 1984

      POINTS OF COUNSEL

      Michael F. Mullen for appellant in the first above-entitled action.
    Appellant’s statement should have been suppressed because it was obtained in violation of his right to counsel. (People v Bartolomeo, 53 NY2d 225; People v Kazmarick, 52 NY2d 322; People v Rogers, 48 NY2d 167; People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325; People v Torres, 91 AD2d 1005; People v Cunningham, 49 NY2d 203.)

      Patrick Henry, District Attorney {Mark D. Cohen of counsel), for respondent in the first above-entitled action.
    I. The police completely fulfilled their obligations pursuant to People v Bartolomeo and its progeny by asking appellant if he had an attorney on a pending charge; with appellant’s unqualified denial, no further inquiry was required. As such, the court properly denied appellant’s motion to suppress. (People v Bartolomeo, 53 NY2d 225; People v Yukl, 25 NY2d 585; People v Leonti, 18 NY2d 384; People v Curatolo, 76 AD2d 524; People v McMillian, 56 AD2d 662; People v Chaffee, 55 AD2d 736; People v Pooler, 41 AD2d 1011; People v James, 24 AD2d 608,17 NY2d 552; People v Huntley, 15 NY2d 72; People v Danziger, 41 NY2d 1092.) II. The admission in evidence of appellant’s confession, if error, was harmless, because appellant himself introduced at trial the full details of the killing through the testimony of the defense psychiatrist. (People v Schaeffer, 56 NY2d 448; People v Coles, 89 AD2d 471; People v Sugden, 35 NY2d 453; People v Torres, 91 AD2d 1005; People v Lynch, 23 NY2d 262; People v Brownell, 62 AD2d 1063; People v Pierce, 71 AD2d 931; People v Catalano, 80 AD2d 587; United States v Price, 441 F2d 1092, 404 US 912; United States v Smith, 470 F2d 377.)

      George Grun and John F. Middlemiss, Jr., for appellant in the second above-entitled action.
    I. Defendant’s right to counsel was violated by the admission into trial of statements he made to police at a time when he was represented by an attorney on a Family Court contempt proceeding. (People v Hobson, 39 NY2d 479; People v Cunningham, 49 NY2d 203; People v Rogers, 48 NY2d 167; People v Kazmarick, 52 NY2d 322; People v Bartolomeo, 53 NY2d 225; People v Levy, 86 AD2d 878; Fuller v Fuller, 31 AD2d 587; United States ex rel. Griffin v Martin, 409 F2d 1300; Argersinger v Hamlin, 407 US 25.) II. Where the police could have obtained an arrest warrant, but chose not to, the acquiring of a confession after a waiver of the Miranda rights, in the absence of counsel, violated defendant’s Fifth and Sixth Amendment rights. (People v Miller, 76 AD2d 576, 54 NY2d 616; People v Samuels, 49 NY2d 218; People v Carl, 46 NY2d 806; People v Ermo, 61 AD2d 177, 47 NY2d 863; People v Evans, 70 AD2d 886.) III. The trial court erred in not balancing all relevant factors in its Sandoval ruling. It was also reversible error for the court to permit cross-examination of defendant as to pending charges in its rulings. (People v Duffy, 36 NY2d 258; People v Schwartzman, 24 NY2d 241; People v Sandoval, 34 NY2d 371; People v Williams, 56 NY2d 236; People v Anderson, 75 AD2d 988; People v Porter, 47 AD2d 908; People v Hepburn, 52 AD2d 958; People v Weston, 51 AD2d 881.) IV. The entire rebuttal testimony of Detective Ryan should have been stricken as it was clearly a collateral attack on defense witness Beulah Walker’s credibility and merely a ruse so as to improperly elicit the prejudicial hearsay statement that defendant had been smoking marihuana prior to the incident. (People v Orse, 91 AD2d 1003; People v Allen, 74 AD2d 640; People v Montanez, 41 NY2d 53; People v Green, 35 NY2d 437.)

      Patrick Henry, District Attorney {Donald O’Brien of counsel), for respondent in the second above-entitled action.
    I. Appellant was not deprived of his right to counsel. (People v Bartolomeo, 53 NY2d 225; People v Marrero, 51 NY2d 56; People v Garofolo, 46 NY2d 592; People v Settles, 46 NY2d 154; People v Singer, 44 NY2d 241; People v Pinzon, 44 NY2d 458; People v Macedonio, 42 NY2d 944; People v Ramos, 40 NY2d 610; People v Hobson, 39 NY2d 479; People v Arthur, 22 NY2d 325.) II. The trial court’s ruling on appellant’s Sandoval motion was proper. (People v Sandoval, 34 NY2d 371; People v Pollock, 50 NY2d 547; People v Caviness, 38 NY2d 227; People v Schwartzman, 24 NY2d 241; People v Sorge, 301 NY 198; People v Alamo, 23 NY2d 630, 396 US 879; People v Branch, 34 AD2d 541, 27 NY2d 834; People v Hepburn, 52 AD2d 958; People v Weston, 51 AD2d 881; People v Reyes, 48 AD2d 632; People v Porter, 47 AD2d 908.) III. The court did not err in permitting the rebuttal testimony of Detective Ryan. (United States v Nussen, 531 F2d 15, 429 US 839; United States v Vivero, 413 F2d 971, 396 US 1017; United States v Glaziou, 402 F2d 8, 393 US 1121; People v Montanez, 41 NY2d 53; People v Green, 35 NY2d 437; People v Crimmins, 36 NY2d 230; People v Pilgrim, 69 AD2d 825; People v Williams, 50 AD2d 911.)
   OPINION OF THE COURT

Wachtler, J.

In these two appeals, we are again called upon to determine the proper limits on the custodial questioning of a defendant in the face of knowledge by the police of defendant’s prior involvement with the criminal justice system. In both cases, the police were aware of pending, unrelated matters, but were told by defendants upon inquiry that they were not then represented by counsel on those matters. Defendants argue that, had the police gone further with their inquiries, they would have discovered that defendants were, despite their denials, represented by counsel, thus precluding questioning in the absence of a waiver executed in counsel’s presence. We do not interpret our decision in People v Bartolomeo (53 NY2d 225) to impose such a duty of further inquiry, at least where the circumstances indicate that it was not unreasonable for the officers to believe defendants’ statements that they were not represented by counsel. Thus, the motions to suppress were properly denied, and we therefore affirm the order of the Appellate Division in each case.

People v Lucarano

In People v Lucarano, the findings of the suppression court indicate that Detective James McCready, while investigating the beating death of an elderly woman, came upon information linking defendant to the crime. A check through Suffolk County records revealed that defendant had several prior arrests, the last of which had occurred only about two weeks previously. No disposition on the charges had, to the detective’s knowledge, been made. Upon Detective McCready’s inquiry of other detectives who knew defendant, he was informed that defendant’s troubles with the law stemmed from his relationship with his girlfriend, who was a married woman, and that his most recent arrest was triggered by the complaint of either defendant’s girlfriend or her husband.

While Detective McCready’s investigation was still underway, Police Officer Norman Bysheim, who had arrested defendant previously and thus was familiar with his troubles with his girlfriend, received a telephone call from defendant’s mother. The call came from Brookhaven Memorial Hospital, where defendant had been taken following an automobile accident. Believing his girlfriend was responsible for the accident, defendant wanted Officer Bysheim’s assistance in taking recourse against her to end the harassment. Although Officer Bysheim could not meet with defendant at that time, he later learned that the Homicide Squad was interested in defendant and informed Detective McCready of defendant’s call.

Officer Bysheim thereafter arranged to meet with defendant. On the way to the hospital, Detective McCready was again informed that defendant’s arrests stemmed from his relationship with his girlfriend. At the hospital, defendant told the two officers that he was tired of being pushed around by his girlfriend and wanted to sue her. When asked who his lawyer would be, defendant responded that he did not have one, but his father was looking into it. Detective McCready then asked defendant specifically about his recent arrest and was told that he had no lawyer in connection with it. When the detective expressed disbelief that one with so many arrests had no lawyer, defendant responded that he did not need a lawyer because all of the arrests were connected with his girlfriend and would be resolved in Family Court. Contrary to this statement, but unknown to the officers, defendant was in fact represented by Legal Aid on several outstanding charges.

Thereafter, defendant initiated a conversation about the homicide then being investigated and told the officers that a person living near the victim had committed the crime. The following day, after defendant signed himself out of the hospital, he was arrested and given Miranda warnings. Defendant stated that he did not want an attorney present. Faced with the mounting evidence against him, defendant eventually admitted that he struck the victim with a wrench after unsuccessfully attempting to have sexual intercourse with her.

Defendant’s motion to suppress this statement was denied, and he was convicted of manslaughter in the first degree. The Appellate Division affirmed.

People v Walker

In People v Walker, the findings below indicate that the victim of a severe assault had identified defendant as his assailant. A few days later, an investigating detective noticed on an arrest card that defendant had been arrested the previous night on a Family Court warrant. It was apparently assumed, correctly, that the warrant had issued in connection with a nonsupport proceeding. The matter was turned over to other detectives, who were informed of defendant’s recent arrest.

Thereafter, the defendant was brought in to speak with the detectives and was asked if he was represented on the Family Court matter or any other unrelated charge. Notwithstanding that defendant had in fact previously obtained Legal Aid representation on the nonsupport matter, he stated that he had no attorney and that the Family Court charge was nonsense. Defendant then explained that he did beat the victim with a hammer and a martial arts stick, because he was upset that the victim was trying to have sexual intercourse with defendant’s mother, who was not well.

Defendant’s motion to suppress this statement was denied, and his conviction of assault in the first degree was affirmed by the Appellate Division.

The Law

Both defendants argue that their statements should have been suppressed, because they were obtained without counsel present and under circumstances in which a valid waiver of the right to counsel could not be effected. Essentially, it is the defendants’ position that the police, who knew of the matters pending against the defendants, were bound to inquire further whether defendants had obtained representation on those matters, notwithstanding that an inquiry of defendants themselves in each case produced a denial of representation. Defendants argue that having failed to make that further inquiry, the police were chargeable with the information a “proper” inquiry would have revealed — that defendants were, despite their disclaimers, represented by counsel. We disagree.

In recent years, this court’s efforts to delimit the proper bounds of police questioning of a suspect in custody has led to the development of several lines of cases dealing with an individual’s right to counsel. We began with the rule that once an attorney has entered a criminal proceeding for the purpose of representing a suspect in custody on the charges under investigation, further questioning is precluded in the attorney’s absence (People v Donovan, 13 NY2d 148; People v Arthur, 22 NY2d 325; People v Hobson, 39 NY2d 479). Nor can this right to the assistance of counsel be waived by the suspect unless his attorney is present. Thereafter, we expanded the circumstances under which the right is deemed to attach, holding that once, the police have knowledge that defendant is represented by counsel on an unrelated pending charge, no uncounseled waiver of the attorney’s assistance will be effective (People v Rogers, 48 NY2d 167). But the mere fact that there are outstanding charges as to which defendant’s right to counsel has attached will not preclude questioning on a new charge, unless the police know or have reason to know that defendant is actually represented on the outstanding charges (People v Fuschino, 59 NY2d 91). The emphasis in this line of cases has been upon knowledge on the part of the police of the event triggering the right to counsel. Thus, where the police know defendant is represented by counsel in connection with the charges under investigation (e.g., People v Hobson, supra; People v Paulin, 25 NY2d 445; People v Ramos, 40 NY2d 610; People v Singer, 44 NY2d 241), or that defendant is represented by counsel on an unrelated pending charge (e.g., People v Rogers, supra; People v Miller, 54 NY2d 616) or where defendant has indicated that he desires the assistance of counsel (People v Cunningham, 49 NY2d 203), we have demanded that the police strictly respect the defendant’s right to have that attorney present during questioning. With few exceptions, the knowledge on the part of the police of the event triggering the right to counsel was actual knowledge, and thus the police were required to afford defendant a right they knew had come into existence.

Not until our decision in People v Bartolomeo (53 NY2d 225, supra) did we impose an affirmative obligation on the police to ascertain whether a defendant had obtained representation on a pending charge. There, we held that where the police had actual knowledge of a recent arrest, an outstanding arson charge against defendant, they had an obligation to make inquiry as to whether defendant was represented by an attorney in connection with that charge. Failing such an inquiry, the police were chargeable with whatever information the inquiry would have disclosed. In Bartolomeo, the inquiry would have revealed that defendant was in fact represented by counsel on the outstanding charge, thus precluding the police from further questioning of defendant or from accepting a waiver of the right to counsel in the attorney’s absence (id., at pp 231-232).

In the two appeals before us, the interrogating officers clearly had knowledge of the pending unrelated charges. Thus, Bartolomeo is clearly applicable and required that the officers inquire whether defendants were represented on those matters. At issue is the scope of the obligation to inquire imposed by Bartolomeo in the face of a defendant’s untruthful or erroneous denial that he is represented by counsel. It is argued that a mere inquiry of the defendant is an insufficient effort on the part of police and that even if a defendant denies that he is represented, a “proper inquiry” would include a further check of available records until some undefined point at which the police may appropriately determine whether defendant is telling the truth.

Under the circumstances presented in these appeals, where it is entirely reasonable for the police to believe that defendants had not obtained counsel, we decline to read Bartolomeo as requiring the police to undertake such additional or extraordinary measures. Our decisions in this area, with their emphasis upon the knowledge available to the police, implicitly recognize that there are practical limitations to the obligations that can be imposed upon the investigating authorities, while reflecting a concern that a right known to exist or the existence of which could easily be ascertained not be ignored. It was not intended that to effectuate that right the police would be required to undertake exhaustive inquiries regarding its existence.

Further, underlying the right to counsel itself is a recognition that it is the individual faced with the intimidating force of the investigating authorities who is most in need of the advice of an attorney whose primary concern is for safeguarding that individual’s rights (People v Hobson, 39 NY2d 479, 485, supra). Moreover, the requirement that counsel be present for a valid waiver to take place gives effect to the more general principle that waiver of a constitutional right must be knowing and intelligent (id., at p 484). The value of this protection to the individual far exceeds the inconvenience caused by requiring that the police make a simple inquiry of defendant. Yet, where defendant has frustrated police efforts to ascertain the true state of affairs by denying such representation even though it exists, he himself thwarts the efforts to effectuate this protection. We would achieve little but the hampering of effective law enforcement in requiring the police to probe further in the face of defendant’s unqualified denial of representation.

We are not unmindful of the possibility, as noted by defendants, that an individual who is the target of an investigation may wish to minimize the seriousness of pending charges simply out of fear that to admit such charges are serious enough to require representation may increase the likelihood of his being arrested immediately or that a defendant mistakenly believes that he does not have an attorney. Notwithstanding that possibility we must also consider the State’s important interest in criminal investigations and the extent to which law enforcement efforts will be impeded by a contrary rule. Accordingly we hold that once a suspect denies that he is represented on a pending unrelated charge, the police are under no obligation to make further inquiry, so long as it is reasonable to believe the defendant’s disclaimer of representation.

An examination of the circumstances in the cases before us indicates that the defendants’ denials could reasonably be believed. In Lucarano, all the information available to Detective McCready as well as Officer Bysheim indicated that defendant’s arrests arose from petty disputes with his girlfriend and that defendant persisted in his belief that the charges were minor and would be resolved without going through criminal proceedings. Given the prior familiarity with defendant’s circumstances and plausible explanation for the series of arrests as well as the defendant’s belief that an attorney was unnecessary, it was entirely reasonable to believe his statement that he had not obtained representation on those charges. We reach the same conclusion in Walker, where defendant had been arrested on a Family Court warrant only the night before questioning took place. The relatively minor quasi-criminal nature of the charge and the fact that the arrest had just been made support the reasonableness of the officers’ belief that defendant had not yet, in accordance with his own statement, obtained counsel.

We have considered defendant Walker’s remaining contentions and conclude that his arguments were not properly preserved.

Accordingly, the order of the Appellate Division in each case should be affirmed.

Chief Judge Cooke and Judges Jasen, Jones, Meyer and Kaye concur; Judge Simons taking no part.

In each case: Order affirmed.

      . Defendant’s prior arrest had occurred in connection with a burglary of his girlfriend’s house and the theft of her fur coat. At that time, Officer Bysheim suggested that defendant retain an attorney to assist him if he felt he was being harassed by his girlfriend. Defendant responded that it was unnecessary because the charges arose solely from personal disputes that would be resolved in Family Court.

      . In People v Marrero (51 NY2d 56), police awareness that counsel had entered the case was held to preclude questioning, and an apparent violation of the right to counsel could not be justified by later-acquired information to the effect that defendant’s arrangement with his attorney was a limited one, not to extend beyond defendant’s surrender to police.

      . In some cases, such knowledge was imputed to the police where the attorney had made efforts to convey that knowledge but was frustrated by the failure of police to maintain proper procedures for locating defendant (People v Pinzon, 44 NY2d 458; People v Garofolo, 46 NY2d 592).

      . To the same effect, we held in People v Smith (54 NY2d 954) that knowledge that defendant had been arrested eight months previously gave rise to a duty to inquire whether defendant was represented (see, also, People v Fuschino, 59 NY2d 91). In People v Servidio (54 NY2d 951), there was neither knowledge of the pending unrelated charges nor were the circumstances such as to impute knowledge of their pendency to the police, and therefore no duty to inquire was imposed.

      . In People v Walker, the People have also argued that the unrelated charge of which the police were aware did not even give rise to the Bartolomeo obligation to inquire, since that matter was only civil or quasi-criminal in nature (see Family Ct Act, § 454, subd 1, par [a]; but see Penal Law, § 260.05). We find it unnecessary to reach this issue in view of our disposition.

      . People v Beam (57 NY2d 241) presents a somewhat analogous situation. There, we held that the police had no obligation to ensure that the suspect fully and accurately informed his attorney of the nature of the charges being investigated, before the attorney indicated that it would be permissible to question defendant.

      . Of course, it would be the more advisable course to make a record, perhaps even video taped, of the suspect’s answer to the officer’s inquiry regarding prior representation, to avoid later disputes concerning the precise questions asked and responses given.


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    In the Matter of Roger A. Bell, Respondent, v Board of Education of Vestal Central School District et al., Appellants.
    Decided February 23, 1984

      APPEARANCES OF COUNSEL

      Earl P. Boyle for Albert J. Guzzi, appellant.

      John B. Hogan for Board of Education of Vestal Central School District and another, appellants.

      William F. Sheehan for respondent.
   OPINION OF THE COURT

Simons, J.

On August 1, 1972, petitioner Roger A. Bell was appointed by the Vestal Board of Education as principal of the district’s only high school. On October 28, 1977, upon the recommendation of respondent Superintendent of Schools, he was granted tenure. The minutes of the board meetings at which petitioner was appointed and tenured refer to his title respectively as “high school principal” and “senior high school principal.” Subsequently, by a resolution adopted July 25, 1978 and revised July 22, 1980 the board determined that the following administrative tenure areas existed in the school district: principal, assistant principal, co-ordinator, psychologist, assistant superintendent and personnel director. Contending that petitioner’s tenure area is “principal”, respondents transferred him to the position of junior high school principal effective February 1, 1982, and the person occupying that position, respondent Albert J. Guzzi, was transferred to petitioner’s position as high school principal. Petitioner opposed the transfer and commenced a CPLR article 78 proceeding, seeking a judgment declaring that his tenure area is senior high school principal and an order reassigning him to his former position. The board and Guzzi cross-moved raising affirmative defenses of untimeliness, joinder of necessary parties, and failure to exhaust administrative remedies.

Special Term rejected each of the affirmative defenses. Upon reaching the merits it concluded that the transfer of petitioner to the junior high school was not arbitrary, capricious or contrary to law and it dismissed the petition. The Appellate Division agreed with Special Term’s disposition of the affirmative defenses but unanimously reversed on the merits and ordered petitioner’s reinstatement. Its order should be reversed and the judgment of Special Term reinstated.

The issue is whether the earlier designation of petitioner in the board’s minutes as senior high school principal coupled with the contemporaneous appointment of another individual as “elementary school principal” is sufficient evidence to establish a separate tenure area. If it was, petitioner could not be transferred out of that tenure area without consent, nor could the board retroactively apply the restructuring of tenure areas adopted in 1978 and 1980 to him (see Matter of Baer v Nyquist, 34 NY2d 291, 294). The Appellate Division believed that there was sufficient evidence to establish a separate tenure area of senior high school principal and accordingly found a violation of petitioner’s tenure rights.

There are no clearly defined guidelines for determining the scope of administrative and supervisory tenure areas as there are for teacher tenure classifications (see 8 NYCRR part 30). However, a board of education may establish a tenure area for some or all of its administrative employees (Matter of Durso, 19 Ed Dept Rep 72; Matter of Roloff, 16 Ed Dept Rep 274) and principal is a general tenure area recognized by the State Education Department (see Matter of Peterson, 18 Ed Dept Rep 494). It was properly adopted by the board’s actions in 1978 and 1980.

Inasmuch as petitioner seeks the benefit of a specific tenure area independent of those subsequently established by the board, he bears the burden of proving its existence (see Matter of Peterson, 18 Ed Dept Rep 494, 496, supra). He does not satisfy that burden solely by evidence that the board minutes of his appointment and grant of tenure described the school to which he was assigned. Petitioner has submitted evidence which indicates several reasons why separate tenure areas might be desirable for schools of different grade levels but that evidence does not support his contention that respondents recognized or accepted those considerations and consciously decided to create separate tenure areas for principals in its district. The board may establish narrow, specific tenure areas, such as high school principal, but it should do so by design and not be bound by descriptive terms used inadvertently in the minutes of petitioner’s appointment and grant of tenure.

Our decision is consistent with the view of the Commissioner of Education that references in board minutes to a title such as senior high school principal do not create a tenure area (see Matter of Durso, 19 Ed Dept Rep 72, supra; Matter of Peterson, 18 Ed Dept Rep 494, supra); they merely identify an individual’s title and the school to which he or she has been assigned. His view rests upon an apparent effort to encourage the adoption of tenure areas modeled on those promulgated by the Education Department and to limit claims of separate tenure areas acquired inadvertently without board approval.

Because petitioner relied exclusively upon the designations in the board minutes, and the record contains no other evidence that the board adopted specific rather than the general tenure areas recognized by the commissioner, petitioner has failed to meet his burden of proof.

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

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and the judgment of Supreme Court, Broome County, dismissing the petition reinstated.

       Petitioner is certified by the Commissioner of Education as both a junior high school and senior high school principal.


author: Kaye, J.

text:
    Crane Neck Association, Inc., et al., Appellants, v New York City/Long Island County Services Group et al., Respondents, et al., Defendants.
    Argued January 4, 1984;
    decided February 23, 1984.

      POINTS OF COUNSEL

      Kevin A. Seaman for appellants.
    I. Restrictive covenants running with the land and which create enforceable vested rights are contractual in nature. (Clark v Devoe, 124 NY 120; French Investing Co. v City of New York, 39 NY2d 587; Ginsberg v Yeshiva of Far Rockaway, 35 AD2d 334; Shelley v Kraemer, 334 US 1; Home Bldg. & Loan Assn. v Blaisdell, 290 US 398.) II. The lower court’s reliance on City of White Plains v Ferraioli (34 NY2d 300) and its progeny is misplaced. (Village of Belle Terre v Boraas, 416 US 1; Group House of Port Washington v Board of Zoning & Appeals, 45 NY2d 266.) III. The restrictive covenant at issue is, by its terms, applicable to both construction and use. (Baumert v Malkin, 235 NY 115; Clark v Devoe, 124 NY 120.) IV. The use of the residential property located at Johns Hollow Road as a community residence violates the terms of the restrictive covenant at issue; public policy does not warrant the vitiating of the subject covenant. (Booth v Knipe, 225 NY 390; Baumert v Malkin, 235 NY 115; Evangelical Lutheran Church v Sahlem, 254 NY 161; Ginsberg v Ye

      shiva of Far Rockaway, 35 AD2d 334, 36 NY2d 706; McCord v Pichel, 35 AD2d 879.)

      Robert Abrams, Attorney-General (Thomas P. Dorsey, Peter H. Schiff and Robert L. Schonfeld of counsel), for New York City/Long Island County Services Group and another, respondents.
    I. The restrictive covenant herein does not prohibit the use of a single-family dwelling as a community residence structured as a stable and permanent single housekeeping unit. (Huggins v Castle Estates, 36 NY2d 427; Premium Point Park Assn. v Polar Bar, 306 NY 507; Buffalo Academy of Sacred Heart v Boehm Bros., 267 NY 242; City of White Plains v Ferraioli, 34 NY2d 300; Group House of Port Washington v Town of North Hempstead, 45 NY2d 266; Little Neck Community Assn. v Working Organization for Retarded Children, 52 AD2d 90, 40 NY2d 803; Incorporated Vil. of Freeport v Association for Help of Retarded Children, 94 Misc 2d 1048, 60 AD2d 644.) II. A restrictive covenant prohibiting community residences for the mentally disabled is unenforceable because it offends public policy and compels perpetration of an unlawful discriminatory practice. (Silverstein v Shell Oil Co., 40 AD2d 34, 33 NY2d 950; New York State Assn. for Retarded Children v Carey, 393 F Supp 715; City of White Plains v Ferraioli, 34 NY2d 300; Group House of Port Washington v Town of North Hempstead, 45 NY2d 266; Little Neck Community Assn. v Working Organization for Retarded Children, 52 AD2d 90, 40 NY2d 803; Incorporated Vil. of Freeport v Association for Help of Retarded Children, 94 Misc 2d 1048, 60 AD2d 644; People v New York City Tr. Auth., 59 NY2d 343; State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201; Matter of Sontag v Bornstein, 33 NY2d 197; New York Inst. of Technology v State Div. of Human Rights, 48 AD2d 132.)
   OPINION OF THE COURT

Kaye, J.

Beginning in 1945, as the Long Island estate of Eversley Childs was divided into residential parcels, each deed within the tract (called Crane Neck Farm) included an identical covenant restricting buildings to “single family dwellings.” Respondent agencies, implementing a longstanding State policy to deinstitutionalize retarded persons and place them in community settings, in 1980 leased property within Crane Neck to house and care for eight severely retarded adults. Appellants, Crane Neck property owners, contending that this use violates the restrictive covenant, seek a judgment enforcing the covenant and enjoining continuation of the lease.

Special Term granted appellants partial summary judgment, concluding that the State facility was not a single-family dwelling and therefore violated the covenant, yet finding that there were fact issues as to whether the restrictions of the covenant had been waived by past violations and whether the character of the neighborhood had so changed as to render the covenant unenforceable in equity. The Appellate Division reversed and dismissed the complaint, determining that the facility could be considered a single-family dwelling consistent within the restrictive covenant, and that in any event the covenant could not be enforced to prevent the residence as a matter of public policy. On the latter ground, we affirm the order of the Appellate Division.

I

Pursuant to a lease effective September 1,1980 between the owners of the subject property (respondents Jonathan Pool and Bernard Grofman) and respondent New York City/Long Island County Services Group (an agency of respondent New York State Department of Mental Retardation and Developmental Disabilities), eight profoundly retarded adults formerly in institutions came to reside in a six-bedroom home situated on two wooded acres at 3 Johns Hollow Road in the Hamlet of Crane Neck, Village of Old Field. These adults were in need of uninterrupted supervision.

According to the State’s program, a nonresident professional staff of approximately 16 persons cares for the residents, trains them, and provides therapy where needed. While resident “houseparents”. are in theory part of the program, it is not clear from the record that there have in fact been houseparents at 3 Johns Hollow Road. At least three supervisory persons are to be within the home around the clock.

In a family-type environment and under constant supervision, the disabled persons residing in Crane Neck are taught socialization as well as basic physical skills. Structured “day programming” lasting six or more hours a day is conducted in feeding, toilet training, personal grooming and health habits, dressing, housekeeping, and caring for property. After the initial period of intensive training, once sufficient independence is developed, the residents are enrolled in sheltered workshops in the area, such as the United Cerebral Palsy Center in Commack, the Industrial Home for the Blind in Melville, and the Suffolk Child Development Center in Smithtown, returning to 3 Johns Hollow Road each day. As they are able, also, they begin interacting with merchants and others in the neighborhood. The stays at 3 Johns Hollow are of indefinite duration, but it appears that residents upon reaching a certain degree of development are expected to leave and be replaced by others in need of care and training.

II

The question presented on this appeal is whether use of the leased premises at 3 Johns Hollow Road should be enjoined by equitable enforcement of the restrictive covenant in the lessors’ deed. Any analysis of this issue of course must begin with language of the covenant.

Starting in 1945, and continuing for about 10 years, uniform deed restrictions were imposed on all parcels comprising the tract of Crane Neck. Each of these deeds, including the deed from which respondent lessors derived title, included the following:

“Subject to the following covenants and restrictions, which shall be construed as real covenants running with the land and shall be binding upon and enure to the benefit of the parties hereto, and their respective heirs, devisees, legal representatives, successors and assigns:

“(a) There shall not be constructed nor maintained upon the said premises, any buildings other than single family dwellings and outbuildings. That no house or dwelling costing less than $3500 on the basis of 1944 material and labor costs shall be erected on the said premises, and that no building other than Cape Cod or Colonial design and architecture (and additional buildings shall conform in architecture to the main dwelling) shall be erected on said premises unless plans and specifications therefor have first been submitted to and approved in writing by the parties of the first part, or their duly authorized agent.”

From a reading of the covenant and the undisputed evidence regarding the intent of the grantor, we conclude that the deed restriction was imposed to preserve Crane Neck as a neighborhood of single-family dwellings, not only architecturally but also functionally. We are therefore in agreement with both courts below that, to give the effect intended by its creator, the covenant must be read to apply not only to the physical construction of single-family dwellings within Crane Neck but also to their actual use. (Baumert v Malkin, 235 NY 115.)

We cannot agree, however, with the conclusion of the Appellate Division that the community residence at 3 Johns Hollow Road functions as a single-family dwelling. It fits neither a traditional concept of a single-family unit known in 1945 (see What Constitutes a “Family” Within Meaning of Zoning Regulation or Restrictive Covenant, Ann., 172 ALR 1172), by which its use must be measured (Clark v Devoe, 124 NY 120, 123), nor even the expanded definitions of “family” of more recent origin (see City of White Plains v Ferraioli, 34 NY2d 300, 306).

In support of their argument that the use is consonant with the covenant, respondent agencies point to the fact that the residence in theory functions as one housekeeping unit providing a homelike atmosphere for individuals who cannot remain in their natural families, meanwhile teaching them basic skills which will enable them to live independently. But these indicia of family life do not create a family.

We found in City of White Plains v Ferraioli (34 NY2d 300, supra) that a group home consisting of a married couple, their two children and 10 foster children qualified as a family for purposes of a zoning ordinance, and in Group House of Port Washington v Board of Zoning & Appeals (45 NY2d 266, 271), we concluded that a group home of seven children with two surrogate parents could not be distinguished from a natural family for that same purpose. Those decisions, which have in effect been codified in subdivision (f) of section 41.34 of the Mental Hygiene Law, are not controlling here. This case concerns the application of a private covenant, not a zoning ordinance. Furthermore, a much different factual situation is presented.

In this context, a home inhabited by eight unrelated adults each receiving uninterrupted professional supervision and care is not a single-family unit. The residents are, twice outnumbered by a changing, nonresident staff of nurses, physical and recreational therapists, dieticians and others finding no equivalent in a biologically unitary family, or indeed in any expanded concept of the word “family.” While neither the size of the resident group nor the nature of its daily activities would necessarily determine the issue (see Incorporated Vil. of Freeport v Association for Help of Retarded Children, 94 Misc 2d 1048, 1049, affd 60 AD2d 644), the absence of regular houseparents and, most significantly, the presence of a large complement of nonresident professional attendants distinguish the residence at 3 Johns Hollow Road from a single-family unit.

The residence being operated by respondent agencies within Crane Neck, then, cannot be considered a single-family dwelling as contemplated by the deed restriction.

Ill

But even if use of the property violates the restrictive covenant, that covenant cannot be equitably enforced because to do so would contravene a long-standing public policy favoring the establishment of such residences for the mentally disabled.

Over the past three decades this State has developed a policy favoring the deinstitutionalization of mentally and developmentally disabled persons, and their placement in supervised residences housing small groups, called “community residences” (Mental Hygiene Law, § 1.03, subd 28). The Mental Hygiene Law authorizes the Commissioner of Mental Retardation and Developmental Disabilities to operate these residences (Mental Hygiene Law, § 41.33), and provides for grants and reimbursements to others who offer such services (Mental Hygiene Law, §§41.36, 41.37, 41.38).

The first steps toward community orientation in the provision of services to the mentally disabled came in 1954 when the Legislature established community mental health boards in order to develop and improve community treatment services, a program described by Governor Dewey, in approving the legislation, as one that “offers a unique opportunity to reclaim the productive value of men and women who might otherwise spend their days within the walls of a mental institution.” (L 1954, ch 10; McKinney’s Session Laws of NY, 1954, p 1372.) In 1967, the Mental Hygiene Law and Private Housing Finance Law were amended to direct the commissioner to acquire or construct “community residential facilities to be operated as hostels for the mentally retarded” and to grant financial assistance to public or private nonprofit organizations for acquisition and construction of such facilities. (L 1967, ch 576.) Governor Rockefeller observed at the time that these community residences allow “the mildly retarded person [to] lead a reasonably full life in dignity, self-support and self respect” and not “to be committed to almost complete dependency in a State institution.” (McKinney’s Session Laws of NY, 1967, p 1531.)

While the community residence program was at first directed to placement of mildly retarded persons, in 1975 Governor Carey pledged this State to a major program of deinstitutionalization of more severely disabled persons, such as those involved in this action, in the consent decree issued in New York State Assn. for Retarded Children v Carey (393 F Supp 715). In 1978, the Department of Mental Hygiene issued a five-year plan for community placement and support of the chronically mentally ill, stating that “[t]he needs of the chronically mentally ill are now better understood and appropriate community support alternatives to institution have been identified; every effort should be made to provide what has been found to be needed.” (New York State Dept of Mental Hygiene, Division of Mental Health, “Appropriate Community Placement and Support: Phase One, Five Year Mental Health Plan,” p ii [Jan., 1978].)

The State policy was further reaffirmed by the passage in 1978 of what has come to be known as the “Padavan Law” (L 1978, ch 468, codified in Mental Hygiene Law, § 41.34), which established site selection procedures for community residences. As the Legislature declared: “It is the intention of this legislation to meet the needs of the mentally disabled in New York state by providing, wherever possible, that such persons remain in normal community settings, receiving such treatment, care, rehabilitation and education as may be appropriate to each individual.” (L 1978, ch 468, § 1.) This policy statement was echoed by Governor Carey in approving the bill:

“The national movement towards providing care and treatment for the mentally disabled in the least restrictive environment consistent with their needs has generated a great demand for community residential facilities for persons formerly served in State institutions.

* * *

“These bills clearly comprise the most important mental hygiene legislation of this session. It is my earnest hope that they will assist the State government, acting through its various agencies, to forge a new partnership with local governments, consumers and providers in developing the type of network of community services that was envisioned when this nation moved away from the back wards and towards the least restrictive environment.” (McKinney’s Session Laws of NY, 1978, pp 1821-1822.)

In approving another bill passed in 1980 providing funding for more community residences (L 1980, ch 809, codified in Mental Hygiene Law, § 41.36), Governor Carey reiterated that “residential services are essential to the State’s efforts to end inappropriate placement of mentally disabled persons in large institutions and to provide homes for mentally disabled persons who have never been institutionalized.” (McKinney’s Session Laws of NY, 1980, p 1907.)

As late as last month, Governor Cuomo stressed in his message to the Legislature that the State remains dedicated to a program of deinstitutionalization and placement of mentally disabled persons in community residences, and that “additional efforts are required to ensure the availability of structured residential settings for all individuals unable to function independently in the community.” (Message to Legislature, pp 49-50 [Jan. 4, 1984].)

Thus, the consistent, unequivocal legislative and executive pronouncements over the past 30 years leave no doubt that it is an important State policy to deinstitutionalize mentally and developmentally retarded individuals, and to house and teach them in “community residences” such as the one now maintained at 3 Johns Hollow Road, in Crane Neck.

Even more directly pertinent to the present issues is the enactment of subdivision (f) of section 41.34 of the Mental Hygiene Law. Section 41.34 was added to the Mental Hygiene Law in 1978 to provide for a fair distribution of community residences and to bring municipalities into the process of site selection, thereby minimizing resistance and avoiding legal battles that had impeded the community residence program. The latter concern was a very real one as attempts to develop community residences and similar group homes in some areas had met with resistance in the form of injunctive actions based upon local ordinances limiting the use of property to single-family residences. In an effort to keep such legal challenges from frustrating the program, the Legislature provided as follows in the concluding subdivision of section 41.34 of the Mental Hygiene Law: “(f) A community residence established pursuant to this section and family care homes shall be deemed a family unit, for purposes of local laws and ordinances.”

While the statute is limited to local laws and ordinances, this provision cannot be read without reference to the purpose that engendered it. A major purpose of section 41.34, and the very purpose for which subdivision (f) was enacted, was to eliminate the legal challenges that were impeding implementation of the State policy. (See Zubli v Community Mainstreaming Assn., 102 Misc 2d 320, 327, affd 74 AD2d 624, mod on other grounds 50 NY2d 1024.) The concern, as evident in the letters and memoranda contained in the Governor’s bill jacket, was to put an end to disruptive litigation over the location of community residences within “family” housing zones. In approving the bill that became section 41.34, Governor Carey stated that: “[T]he bill aims to facilitate the establishment of community residences by discouraging frivolous legal challenges that have needlessly delayed proper establishment of such facilities in the past, at great cost to the litigants. This legislation attempts to encourage a process of joint discussion and accommodation between the providers of care and services to the mentally disabled and representatives of the community, rather than legal antagonism.” (McKinney’s Session Laws of NY, 1978, p 1821.)

The fact that subdivision (f) speaks of “local laws and ordinances” thus reflects only the particular grounds that historically had been invoked to block placement of community residences, and not a deliberate substantive limitation by the Legislature. Private covenants restricting the use of property to single-family dwellings pose the same deterrent to the effective implementation of the State policy as the local laws and ordinances that had actually been the subject of the legal challenges. Given the avowed purpose of this law, we conclude that the Legislature did not enact subdivision (f) to erase the impediment resulting from single-family requirements found in laws and ordinances while leaving it intact in private covenants, and that the subdivision applies to such deed restrictions as well.

The legislative intent to remove barriers based on “family” restrictions, whether contained in local laws, ordinances or private covenants, is further illuminated by a comprehensive report issued on the heels of adoption of section 41.34 by the Senate Mental Hygiene and Addiction Control Committee, and authored by its chairman, Senator Frank Padavan, for whom the law is named. (New York State Mental Hygiene and Addiction Control Committee, “Site Selection of Community Residences for the Mentally Disabled: Historical Perspective and Legislation” [April, 1979].) In a section entitled “Zoning and Legal Issues,” it is explained that many methods of litigation have been used by communities to block the establishment of such community residences and that, because of their availability, “special use permits and restrictive zoning ordinances have become the most relied upon method.” {Id., pp 25-26.) Such litigation frustrates the State’s program:

“Selection of community residence sites have often followed ‘the path of the least resistance’.

* * *

“The fact that some neighborhoods have a relatively high concentration of community residents is unfair to those neighborhoods who have been chosen to carry the weight of the community’s responsibility for the mentally disabled. It is equally counter productive to the goals of community care movement which strives for ‘normal settings’ and not mental hygiene ghettos that act as little more than mini-institutions. Furthermore, community residence sites that are inappropriate to the residents are selected in commercial zones when housing in ‘transitional neighborhoods’ is not available.” {Id., pp 26-27.)

After examining the cases that had been brought to enjoin the placement of group homes — all of which were, like Ferraioli, based upon local laws and ordinances — the committee stated that “with this legal climate in mind,” it had drafted legislation with an aim “to lessen the amount of litigation involved in siting community residences.” {Id., p 31.) As the committee explained

“Regardless of the source of the suits, they served only to polarize the community, spend taxpayers’ money and delay the inevitable location of the group home. This process was of little value to any of the interested parties.

“The end product was a bill, now law, which fully satisfied no single party of interest. It did, however, establish a formal process involving community input and the right to suggest alternative sites. It also made clear the principle that any community residence established in accordance with its provisions would be deemed a single family unit, hopefully reducing litigation over this question.” {Id., p 32.)

It is clear from this report that, while the Legislature fixed on local laws and ordinances because those had been the source of prior legal challenges, the intention in adopting the legislation was to eliminate litigation “regardless of the source” by simply declaring a community residence to be a single-family unit.

Subdivision (f) “must be read with the legislative goal in mind so that * * * gaps in the law may be resolved in accordance with the legislative scheme.” (Matter of Pell v Coveney, 37 NY2d 494, 496.) The rule of construction that specific mention of one thing impliedly excludes others is not “anything more than an aid to construction and ‘must not be utilized to defeat the purpose of an enactment or to override the manifest legislative intent’ ”. (Matter of John P. v Whalen, 54 NY2d 89, 96.) The purpose and history of subdivision (f) establish that it was enacted to eliminate litigation adversely affecting the State’s program by challenging the “family” status of a community residence. In such circumstances, we must “construe the act in question so as to suppress the evil and advance the remedy.” (Matter of Sullivan Co. [Miller], 289 NY 110, 114.) ,

Since the State’s policy regarding placement of the mentally disabled as set forth in subdivision (f) would be frustrated by enforcement of the restrictive covenant, it cannot as a matter of public policy be enforced against the community residence at 3 Johns Hollow Road.

IV

Appellants urge that this court may not refuse to enjoin violation of the restrictive covenant on public policy grounds because it is a private contract which cannot be impaired by the State absent emergency circumstances not present here. (US Const, art I, § 10; Home Bldg. & Loan Assn. v Blaisdell, 290 US 398.) Appellants’ argument, however, misconstrues the law.

Although the language of the contract clause is facially absolute, this court has long recognized that the State’s interest in protecting the general good of the public through social welfare legislation is paramount to the interests of parties under private contracts, and the State may impair such contracts by subsequent legislation or regulation so long as it is reasonably necessary to further an important public purpose and the measures taken that impair the contract are reasonable and appropriate to effectuate that purpose. (Matter of Subway-Surface Supervisors Assn. v New York City Tr. Auth., 44 NY2d 101,109-112; Matter of Farrell v Drew, 19 NY2d 486, 493-494; Matter of Department of Bldgs. [Philco Realty Corp.], 14 NY2d 291, 297-298.)

While older cases such as Blaisdell (many of which concerned depression-era legislation prohibiting foreclosure of mortgages or other debts) may have suggested that some emergency requiring temporary State action should be present in order to allow impairment of contract rights, this is clearly no longer the law. “If the state regulation constitutes a substantial impairment, the State, in justification, must have a significant and legitimate public purpose behind the regulation * * * such as the remedying of a broad and general social or economic problem * * * Furthermore, since Blaisdell, the court has indicated that the public purpose need not be addressed to an emergency or temporary situation.” (Energy Reserves Group v Kansas Power & Light Co., 459 US 400,_, 74 L ed 569, 581; see, also, Allied Structural Steel Co. v Spannaus, 438 US 234, 249, n 24.)

Here the State’s interest in protecting the welfare of mentally and developmentally disabled individuals is clearly an important public purpose, and the means used to select the sites for community residences are reasonable and appropriate to effectuate the State’s program of providing the most effective care in the least restrictive environment. In such circumstances, appellants’ private contract rights may not override State policy.

V

Since public policy prohibits enforcement of the restrictive covenant against the “community residence” at 3 Johns Hollow Road, appellants’ action seeking to enjoin such use was properly dismissed. Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Meyer concur; Judge Simons taking no part.

Order affirmed, with costs.

      . In view of our holding, there is no need to reach the issue of waiver of the restrictive covenant, or what value if any it might have.

      . An additional public policy regarding housing for mentally disabled individuals is expressed in subdivision 5 of section 296 of the Executive Law.

      . (L 1978, ch 468, § 1.) Indeed, the parties to this litigation invoked the procedures provided by section 41.34 of the Mental Hygiene Law. Upon receiving notice of the site selection within Crane Neck, a public hearing was convened by the Village Trustees of Old Field, after which the village formally objected to the proposed community residence. Following a hearing conducted by the representative of respondent Department of Mental Retardation and Developmental Disabilities, the commissioner supported the decision to establish a community residence at 3 Johns Hollow Road, finding that the facility would not substantially alter the nature and character of the area. This decision was sustained in an article 78 proceeding brought by the village (Incorporated Vil. of Old Field v Introne, 81 AD2d 906), after which the lease was signed.

      . (See, e.g., Little Neck Community Assn. v Working Organization for Retarded Children, 52 AD2d 90, mot for lv to app den 40 NY2d 803; and Incorporated Vil. of Freeport v Association for Help of Retarded Children, 94 Misc 2d 1048, affd 60 AD2d 644.)

      . Although section 10 of article I is directed at legislative impairment, and mere impairment of an existing contract by a court order would not necessarily run afoul of that constitutional prohibition (Barrows v Jackson, 346 US 249), where a court order is based on and gives force or effect to a legislative enactment, there is an impairment within the terms of the contract clause (Columbia Ry. v South Carolina, 261 US 236, 244-245).


author: Wachtler, J. Jasen, J.

text:
    The People of the State of New York, Respondent, v Danny G., Appellant.
    Argued January 9, 1984;
    decided February 21, 1984

      POINTS OF COUNSEL

      Susan Slovak and William E. Hellerstein for appellant.
    Appellant cannot be denied specific performance of his bargained-for sentence when (a) he complied fully with the terms of the plea bargain by testifying against a codefendant; (b) the record does not substantiate the Trial Judge’s assertion that he warned defense counsel, before appellant testified against codefendant, that the bargain would not be honored; and (c) neither the failure of appellant’s codefendants to receive similar bargained-for sentences nor the information in appellant’s presentence report was a sufficient basis for the court’s refusal to honor the agreement. (People v McConnell, 49 NY2d 340; Matter of Chaipis v State Liq. Auth., 44 NY2d 57; People v Selikoff, 35 NY2d 227, 419 US 1122; Matter of Benjamin S., 55 NY2d 116; People v De Crescente, 53 NY2d 995; People v Da Forno, 53 NY2d 1006; People v Frederick, 45 NY2d 520; People v Davidson, 35 NY2d 227.)

      John J. Santucci, District Attorney (Brian Bressman of counsel), for respondent.
    The court’s refusal to honor the bargained-for sentence was warranted in view of the additional information contained in the probation report, which information would have made performance of the bargain improvident. (People v McConnell, 49 NY2d 340; People v Selikoff, 35 NY2d 227; Matter of Benjamin S., 55 NY2d 116.)
   OPINION OF THE COURT

Wachtler, J.

In People v McConnell (49 NY2d 340), we held that a defendant who has placed himself in a “no-return” position by carrying out his obligations under a plea agreement is entitled to specific performance of that agreement in cases where no significant additional information bearing upon the appropriateness of the plea bargain later comes to the court’s attention. Defendant, who testified at the trial of an accomplice in full compliance with his part of the bargain, falls squarely within this rule. The court’s refusal to impose the agreed upon sentence having no sufficient justification on this record, defendant is entitled to specific performance of the plea agreement.

Defendant was charged with burglary in the first degree and robbery in the first and second degrees, after he surrendered to the police and admitted his participation in the crimes. He pleaded guilty to burglary in the first degree in full satisfaction of the indictment. During proceedings on the plea, defendant admitted that he, along with four others, broke into complainant’s house through a kitchén window at 2:00 a.m. Defendant waited in the kitchen while the others went upstairs. One of his accomplices came downstairs and said that the complainant was home. The accomplice took a knife from the kitchen and returned upstairs. Shortly after, the four accomplices came back downstairs and defendant left the house with them.

The record indicates that defendant reached an agreement with the Assistant District Attorney in which defendant, in return for his guilty plea, would receive a recommendation for youthful offender treatment and a sentence of probation. The People’s recommendation that the court accept the plea was expressly conditioned upon defendant’s promise to testify for the People should the case against one of defendant’s accomplices proceed to trial. The court, noting that a similar arrangement had apparently been approved by another Judge for two other accomplices, agreed to the terms of the plea agreement, reserving the right to change the sentence should the presentence report contain information indicating that the promised sentence was improper, unrealistic, or inadequate.

Thereafter, defendant testified for the People in the case against his accomplice in accordance with the terms of the plea agreement. When defendant appeared for sentencing, however, the court refused to impose the agreed upon sentence of probation. Although the court did adjudicate defendant a youthful offender as it had promised, the sentence imposed was a 90-day term of imprisonment, to be served intermittently, as well as a term of probation.

The court listed several factors as affecting its decision to impose a sentence different from that originally recommended by the People. First, the court noted that although it had considered the plea agreement extremely generous to defendant, it had acquiesced in it because of its belief that other accomplices would be receiving similar treatment. It was subsequently learned that the sentence recommendations as to these others were not accepted and that the prosecutor had erred when he informed the court to the contrary. Secondly, the court indicated that counsel for defendant had immediately been informed of the court’s intention not to abide by the plea agreement, before defendant was produced to testify at the trial of his accomplice. Finally, the presentence report revealed that defendant had been arrested twice since the arrest in this case. Although one charge was dismissed, the other resulted in youthful offender treatment, incarceration, and a three-year probation term. The court viewed the report’s failure to recommend youthful offender treatment as mandating that a term of imprisonment be imposed, notwithstanding the very favorable report on defendant’s performance on probation.

Upon defendant’s appeal from the sentence imposed, the Appellate Division affirmed. Because we do not agree that the circumstances outlined by the sentencing court were sufficient to refuse to abide by the promised sentence after defendant had completed his part of the agreement by testifying for the People, we reverse.

Recently, this court held that an off-the-record promise, although not in express contradiction with the record, made in the course of the plea bargaining process, is not entitled to judicial recognition (Matter of Benjamin S., 55 NY2d 116). In so holding, we reaffirmed the important policy that openness and certainty in plea negotiations are vital to the continued validity of that process (id., at pp 120, 121; see People v Frederick, 45 NY2d 520, 525; People v Selikoff, 35 NY2d 227, 242-244, cert den 419 US 1122). Defendant argues that the contention that he was warned of the court’s intention not to abide by the plea agreement amounts to withdrawal of a sentencing promise which should be deemed unenforceable because it was not placed on the record.

It is clear that the warning referred to by the court is not reflected in the record. When the court indicated at sentencing that it had warned defense counsel of its change of heart, defense counsel insisted that the court had not done so until after defendant had irrevocably changed his position by testifying for the People. The court then stated that there were minutes reflecting the in-chambers conference on the matter which had taken place well before trial of defendant’s accomplice. These minutes were not produced, nor as was thereafter discovered, had defendant been scheduled for any appearance between his plea and sentencing. The court adhered to its recollection that counsel had been notified of the court’s intention prior to producing the defendant to testify.

We believe this state of facts underscores the need to have all relevant terms of a plea agreement, including the withdrawal of a promise, placed upon the record. In terms of the necessity for certainty in this process, reliance upon the sometimes faulty memories of counsel or the sentencing Judge for such specifics as the date that a given promise was withdrawn, without independent verification, cannot be tolerated. Effective appellate review is all but precluded when the courts below have placed reliance upon off-the-record promises and representations. Moreover, inasmuch as the State may hold the defendant to the precise terms of the plea agreement as stated on the record, as a matter of fairness, defendant should be entitled to no less (see People v McConnell, 49 NY2d 340, 349, supra). Thus, we conclude that the withdrawal of the sentencing promise, not appearing on the record, is entitled to no recognition because of its effect on the plea bargaining process.

The court also noted that its decision not to abide by the sentencing promise was initially reached because similar treatment for two of defendant’s accomplices had not been approved. We agree with defendant that this is an inappropriate basis, in the circumstances of this case, to refuse to honor the sentencing promise. There is no requirement that all participants in a crime be treated equally. Such factors as the extent of actual involvement and circumstances of the individual’s background can, and indeed should, be considered in the sentencing decision (People v Selikoff, supra, at p 234). We note further that while the court, on accepting defendant’s plea, referred to the representation concerning the accomplices’ plea agreements, it did not explicitly condition acceptance of defendant’s plea agreement upon that event. Finally, that the court was misinformed as to the status of related plea negotiations is due to the error of the prosecutor and can in no way be attributed to defendant (cf. People v Da Forno, 53 NY2d 1006). Thus, the mere fact that other participants did not, as had been expected, receive similarly lenient treatment for reasons unknown to us on this record provides no justification for reneging on the plea agreement.

Remaining for our consideration is whether the adverse information contained in the presentence report was sufficiently significant to warrant the court’s refusal to impose the promised sentence. In People v McConnell (49 NY2d 340, supra), this court indicated that, in certain circumstances, specific performance of a plea bargain must be afforded as a matter of essential fairness to defendant. There, defendant had been promised a certain term of imprisonment upon his plea of guilty in exchange for his testimony before the Grand Jury and in subsequent proceedings against the other participants in the crime. Defendant fully performed his obligations, but at sentencing the court refused to go along with the agreed upon sentence on the basis that defendant had participated in the crime in a manner not precisely known to the court upon acceptance of the plea agreement. We held that defendant, who had irrevocably changed his position by testifying for the People, thus waiving his privilege against self incrimination and exposing himself to the risk of retaliation, was entitled to specific performance of his plea agreement. The information coming to the court’s attention after the plea was approved — that defendant had used a knife in addition to beating, punching or kicking the victim — was deemed too insignificant to warrant refusal to honor the bargain that defendant had fully performed.

Essential to our determination that specific performance is warranted under some circumstances is our concern that a defendant who has performed services for the prosecutor, at risk to himself, be treated fairly (see Matter of Chaipis v State Liq. Auth., 44 NY2d 57). Once the defendant has been placed in such a “no-return” position, relegating him to the remedy of vacatur of his plea cannot restore him to the status quo ante, and he should therefore receive the benefit of his bargain, absent compelling reasons requiring a different result. “Of importance also is the detrimental effect on the criminal justice system that will result should it come to be believed that the State can renege on its plea bargains with impunity notwithstanding defendant’s performance” (People v McConnell, supra, at p 349).

In the present case, as in McConnell, defendant fully performed his obligation under the plea agreement. By his testimony for the People, he waived his privilege against self incrimination and assisted in the prosecution of another at the risk of possible retaliation. This irrevocable change in position entitles defendant to specific performance of his plea agreement, inasmuch as the information contained in the presentence report was not so significant as to require a contrary conclusion. The sentencing court found particularly relevant that defendant had been arrested twice since his arrest in this case. As to one arrest, however, the charges were dismissed outright. As to the other, defendant was found guilty of petit larceny, adjudicated a youthful offender and sentenced to 30 days in jail and three years probation. In addition to the fact that both arrests as well as the disposition of the latter took place well before the plea agreement in the present case was accepted, it appears that the presentence report is generally very favorable to defendant. The report, noting that his family situation is extremely stressful, attributed this youth’s few criminal involvements to those difficulties. Defendant’s progress on probation is reported upon in glowing terms; both his remorse and cooperation are documented. Indeed, his current probation officer stated that probation is also indicated as a recommended disposition for this offense.

We conclude that the additional relevant arrest, having been disposed of prior to approval of the plea bargain, is an insufficient basis upon which to refuse to honor the bargain défendant has fully performed, particularly in view of the over-all favorable nature of the presentence report. Accordingly, the order of the Appellate Division should be reversed and the case remitted to Supreme Court, Queens County, for resentence to a term of probation in accordance with defendant’s plea agreement.

Jasen, J.

(dissenting). The majority today holds that the presentence report which disclosed, inter alia, that defendant had been arrested twice, convicted once, adjudicated a youthful offender and sentenced to 30 days in jail and three years probation, all subsequent to his arrest in this case, is generally favorable and that the adverse information is “not so significant” as to permit the court to refuse to abide by its sentencing promise even though its agreement to do so was expressly conditioned upon receiving a favorable presentence report. Since I do not believe that both courts below erred as a matter of law in deciding that the report was not favorable, I respectfully dissent.

I note preliminarily my complete agreement with the majority’s holding that judicial recognition cannot be given to the court’s off-the-record withdrawal of its sentencing promise. (Matter of Benjamin S., 55 NY2d 116; People v Frederick, 45 NY2d 520.) I also agree that inasmuch as the court did not specifically condition its approval of the plea bargain agreement upon defendant’s accomplices receiving similar treatment, the fact that similar treatment was not ultimately accorded those individuals would not be a proper basis upon which to deny the defendant the bargained-for sentence.

As the majority concedes, however, the record discloses that the Trial Judge made it very clear to defendant that he would acquiesce in the plea agreement between defendant and the District Attorney and impose a sentence of probation only if all the terms of the agreement were satisfied. One of the conditions to the court’s approval of the agreement was receipt of a favorable presentence report. With respect to that condition, the Judge informed the defendant, on the record, that “[i]f the probation report is returned and makes that sentence improper or unrealistic * * * or improperly based, I reserve the right to change that sentence and to advise you of the sentence that I think should be imposed in light of the information supplied in the probation report, and if I do that you can accept such sentence as I indicate I intend to give or you can withdraw the plea. Do you understand what I have said?” The defendant, in the presence of his attorney, replied that he understood and agreed to the condition.

The report, which was prepared and submitted to the court, contained information indicating that defendant had engaged in additional criminal activity subsequent to his arrest in this case, had previously engaged in antisocial conduct and could be easily provoked into doing so again. After receiving the report, the court decided that a sentence of probation would be inappropriate “particularly in light of the report of the Department of Probation”. (Emphasis supplied.) As a result of its determination that the report was not favorable and that a condition of the plea agreement had therefore not been satisfied, the court sentenced defendant to 90 days in jail, to be served intermittently. The Appellate Division affirmed.

On this appeal, defendant contends, and the majority agrees, that “[t]he contents of [the presentence] report did not qualify as adverse because, when read in its entirety, the report was favorable.” While it is true that the report contained some favorable comments concerning defendant, it also contained evidence that defendant has a propensity for engaging in criminal conduct. Indeed, the report disclosed that defendant had been arrested twice subsequent to his arrest in this case. As to the first arrest, the charges were dismissed. As to the other, defendant was charged with grand larceny, a felony, but was permitted to plead to a misdemeanor and was sentenced as a youthful offender to 30 days in jail and three years probation. The report also discloses that “[t]he defendant has participated in delinquent and antisocial conduct in company with other youths, and he has apparently been susceptible to influence of bold and psychopathic persons.” Defendant was also reported to be “quick tempered” and “easily provoked”.

The determination whether or not the presentence report is favorable requires a balancing of both the critical and the laudatory information contained therein. The nature of the information, its relevance to the decision whether or not defendant should be given probation and the circumstances surrounding the incidents detailed must also be taken into consideration by the court. In the case before us, the sentencing Judge analyzed the information contained in the report, and exercised his judgment and discretion in determining it to be unfavorable. The Appellate Division agreed and refused to employ its “interest of justice” powers to require specific performance of the plea agreement.

Nevertheless, the majority today characterizes the report as generally favorable and the adverse information contained therein as “not so significant” as to permit the court to find that a condition of its sentencing promise had not been satisfied. In doing so, this court impermissibly substitutes its judgment for the judgment of both courts below while doing little more than listing some of the favorable comments contained in the report and ignoring much of the adverse information. It is noteworthy that the majority does not, and indeed cannot, say that the courts below erred as a matter of law in determining the presentence report to be unfavorable.

Inasmuch as this court is empowered to review only questions of law (CPL 450.90, subd 2) and not discretionary or factual determinations, specific performance of the subject plea agreement cannot be ordered by this court unless it can be said that the sentencing court and the Appellate Division abused their discretion as a matter of law. Because there is abundant support in the presentence report to sustain the determination below that the report was unfavorable and that a condition precedent to enforcement of the court’s sentencing promise was not satisfied, this court should not substitute its judgment to reach a different result and require specific performance of the plea agreement.

Accordingly, I would affirm the order of the Appellate Division.

Chief Judge Cooke and Judges Jones, Meyer and Kaye concur with Judge Wachtler; Judge Jasen dissents and votes to affirm in a separate opinion; Judge Simons taking no part.

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

       Defendant refused the court’s offer to withdraw his plea, instead insisting upon specific performance of the plea agreement.

       The majority’s implication that the fact that “both arrests as well as the disposition of the latter took place well before the plea agreement in the present case was accepted” (majority opn, at p 176) is somehow relevant is misleading. As defendant concedes, there is nothing on the record to indicate that the sentencing Judge was aware of defendant’s additional arrests prior to his approval of the plea agreement. As a result, no judicial recognition can be given to that fact. (Matter of Benjamin S., 55 NY2d 116; People v Frederick, 45 NY2d 520.)


author: Jasen, J.

text:
    In the Matter of the Arbitration between Robert E. Waldron, Appellant, and Lynn B. Goddess, Respondent.
    Argued January 11, 1984;
    decided February 21, 1984

      POINTS OF COUNSEL

      Michael M. Meadvin, Michael C. Silberberg and Timothy P. Dillon for appellant.
    I. Goddess cannot fashion a valid arbitration agreement with Waldron on the basis of an employment contract with Cross and Brown which expired long before her dispute with Waldron arose. (Matter of Marlene Inds. Corp. [Carnac Textiles], 45 NY2d 327; Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1; Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 NY 288; Matter of Doughboy Inds. [Pantasote Co.], 17 AD2d 216; Steigerwald v Dean Witter Reynolds, 84 AD2d 905, 56 NY2d 621; Hadjioannou v Avramides, 40 NY2d 929; Matter of National Recreational Prods. [Gans], 46 AD2d 618; Glasser v Price, 35 AD2d 98; Moruzzi v Dynamics Corp. of Amer., 443 F Supp 332; Matter of Board of Educ. [Poughkeepsie Public School Teachers Assn.], 44 AD2d 598.) II. Goddess cannot compel arbitration pursuant to provisions contained in Waldron’s employment contract. (Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652; Matter of Kaye Knitting Mills [Prime Yarn Co.], 37 AD2d 951; Hull Dye & Print Works v Riegel Textile Corp., 37 AD2d 946; Matter of Regeant of Shelby [Leumas Knitting Mills], 54 AD2d 667; Arcata Graphics Corp. v Silin, 59 AD2d 1007; Matter of Firedoor Corp. v R.K. & A. Jones, 47 AD2d 878.)

      Edward Brodsky and Richard P. Swanson for respondent.
    I. Waldron’s employment contract requires that his commission dispute with Goddess be arbitrated. (Weiner v McGraw-Hill, Inc., 57 NY2d 458; Matter of Riccardi [Modern Silver Linen Supply Co.], 45 AD2d 191, 36 NY2d 945; Aegis Prop. Servs. Corp. v Mihalski, 91 AD2d 577; Newin Corp. v Hartford Acc. & Ind. Co., 37 NY2d 211; Matter of Groval Knitted Fabrics [Alcott], 39 AD2d 524, 31 NY2d 796.) II. Goddess also has an enforceable employment agreement which requires her commission dispute with Waldron to be arbitrated. (Jemzura v Jemzura, 36 NY2d 496; Cammack v Slattery & Bros., 241 NY 39; New York Tel. Co. v Jamestown Tel. Corp., 282 NY 365; Miller v Schloss, 218 NY 400; Martin v Campanaro, 156 F2d 127, 329 US 759; Matter of Board of Educ. [Connetquot Teachers Assn.], 74 Misc 2d 336.)
   OPINION OF THE COURT

Jasen, J.

This proceeding arose from a dispute over commissions between two real estate brokers, Waldron and Goddess, in the employ of the same New York real estate concern, Cross and Brown. Waldron seeks a vacatur of Goddess’s demand for arbitration which was predicated upon similar arbitration agreements in their separate employment contracts. Waldron’s contract was in effect at all relevant times, but Goddess’s contract expired prior to the dispute and, although her employment continued, she rejected her employer’s offer to enter into a new written contract. Thus, at the time the dispute arose, Waldron was subject to an express agreement with the employer to arbitrate, but Goddess was not. Special Term dismissed Waldron’s motion to vacate and granted Goddess’s cross motion to compel arbitration. A divided Appellate Division affirmed, and we now reverse.

It is settled that a party will not be compelled to arbitrate and, thereby, to surrender the right to resort to the courts, absent “evidence which affirmatively establishes that the parties expressly agreed to arbitrate their disputes.” (Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1, 6; see, also, Matter of Marlene Inds. Corp. [Carnac Textiles], 45 NY2d 327, 333-334.) The agreement must be clear, explicit and unequivocal (Matter of Acting Supt. of Schools [United Liverpool Faculty Assn.], 42 NY2d 509, 512; Matter of Lehman v Ostrovsky, 264 NY 130, 132) and must not depend upon implication or subtlety (Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 NY 288, 291; Matter of Doughboy Inds. [Pantasote Co.], 17 AD2d 216, 220 [Breitel, J.]). Here, where there is no agreement between Waldron and Goddess themselves, Goddess relies upon the separate employment contracts with their mutual employer, each containing compulsory arbitration provisions. Examination of those contracts, however, reveals that they do not provide an adequate basis on which to compel Waldron to submit to Goddess’s demand.

The arbitration agreement in Waldron’s employment contract consists of two separate sections. The first, pertaining only to disputes with the employer, is inapplicable here. It expressly provides that any dispute arising between Cross and Brown and Waldron shall be settled by arbitration “upon the request of either party hereto”, and further states that these provisions shall apply even where “any such dispute” involves other employees, “whether or not such * * * employees submit to arbitration.” This first section thereby merely obligates Cross and Brown and Waldron to submit their disputes with each other to arbitration at either’s request, regardless of the involvement of any other employee. It clearly does not, however, give such other employee or any party other than Cross and Brown and Waldron the right to compel either of them to arbitrate. The second section of the arbitration agreement does cover disputes between employees, but it cannot be said clearly and explicitly to apply here. This section provides for submission to the corporation’s own arbitration procedure when the parties to the dispute have mutually consented to do so. Goddess and Waldron have not done so here. It further provides, in the absence of such consent, for submission of the dispute to the American Arbitration Association “by either party to this agreement” (emphasis added) — i.e., only Cross and Brown or Waldron. Nowhere is the right to compel arbitration extended to a nonparty to the agreement, albeit another employee, and nowhere is a party to the agreement required to submit to the latter’s demand. Absent clear language to the contrary, this arbitration agreement between Waldron and Cross and Brown may not be so “‘extended by construction or implication’” to include an employee not a party to the agreement as Goddess urges. (Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], supra, at p 289.)

Nor is there merit to Goddess’s claim that the arbitration agreement in her expired employment contract with Cross and Brown constituted a binding right and obligation to arbitrate disputes with other employees. Not only did that contract expire prior to the dispute and no written employment contract was in existence, but also, the mere continuation of her employment did not operate to extend the arbitration agreement of the expired employment contract. Although the conduct of Goddess and Cross and Brown, subsequent to the expiration of the contract, may be construed to imply an agreement to extend some of its provisions, “the threshold for clarity of agreement to arbitrate is greater than with respect to other contractual terms.” (Matter of Doughboy Inds. [Pantasote Co.], supra, at p 219.) Absent a clearly expressed intention to renew the arbitration agreement contained in the otherwise expired employment contract or to adopt one contained elsewhere, Goddess was neither bound thereto (cf. Castagna & Son v Michel Plumbing, 61 NY2d 841; Matter of American Rail & Steel Co. [India Supply Mission], 308 NY 577) nor could she derive any reciprocal right therefrom to compel Waldron to arbitrate.

There being no clear commitment obligating the parties to compulsory arbitration, the petition to stay arbitration should have been granted and the cross motion to compel the parties to proceed to arbitration denied. Accordingly, the order of the Appellate Division should be reversed, with costs.

Chief Judge Cooke and Judges Jones, Wachtler, Meyer and Kaye concur; Judge Simons taking no part.

Order reversed, with costs, motion to stay arbitration granted and cross motion to compel arbitration denied.

      . The arbitration agreement is contained in paragraph eleventh of the employment contract. The first unnumbered section of that paragraph provides: “eleventh: It is expressly understood and agreed by and between the corporation and the employee that any dispute or difference in respect to any matter covered by any of the terms, provisions or conditions of this Agreement or in respect to any of the affairs or relations of the respective parties hereto shall be finally settled by submitting the same promptly to arbitration upon the request of either party hereto before the American Arbitration Association in the Borough of Manhattan, City of New York. The provisions of this paragraph numbered eleventh shall also apply in the event that any such dispute or difference may involve an employee or employees of the corporation in addition to the employee whether or not such other employee or employees submit to arbitration.”

      . The second unnumbered section of paragraph eleventh of the contract provides: “And it is further expressly understood and agreed by and between the parties hereto that any dispute or difference between the employee and any other employee or employees of the corporation shall, if all of the parties to such dispute or difference agree in writing, be settled by submitting the same promptly to arbitration in pursuance of the arbitration procedure adopted by the corporation and on file with the Secretary of the corporation, such arbitration procedure being open for inspection at all times by any of the parties so affected. In the event that the parties do not promptly agree in such latter case to arbitration in pursuance of the procedure of the corporation (and delay in so agreeing for a period in excess of ten days shall be deemed to be equivalent to failure to agree), then such dispute or difference shall forthwith be submitted to the American Arbitration Association in the Borough of Manhattan, City of New York, for final determination by either party to this Agreement.”