text:
    In the Matter of Nostima Foods, Inc., Respondent, v State Liquor Authority, Appellant, et al., Respondent.
    Argued March 21, 1988;
    decided May 3, 1988

      POINTS OF COUNSEL

      Stephen D. Kalinsky and Gloria M. Dabiri for appellant.
    Imposition of a penalty of a seven-day suspension of petitioner’s liquor license and a $1,000 bond claim and an additional monetary penalty of $1,750 was a valid act by the Authority and was not in excess of the Authority’s jurisdiction. (Matter of Dumbarton Oaks Rest. & Bar v New York State Liq. Auth., 58 NY2d 89; Matter of Farina v State Liq. Auth., 20 NY2d 484; Matter of Pepper & Salt Tavern v State Liq. Auth., 99 AD2d 840, 62 NY2d 603.)

      Monroe I. Katcher, II, for Nostima Foods, Inc., respondent.
    I. The "offers in compromise” procedure pursued herein is unauthorized by statute and is at variance with and in violation of the procedure established under sections 118 and 119 of the Alcoholic Beverage Control Law, and the provisions of rule 2 of the Authority’s rules promulgated pursuant thereto (9 NYCRR part 54). (Matter of Hilton Hotels v Epstein, 14 AD2d 399, 11 NY2d 978; Matter of Costello v New York State Liq. Auth., 17 AD2d 547; Matter of Sorrentino v State Liq. Auth., 10 NY2d 143; Matter of Gross v New York City Alcoholic Beverage Control Bd., 7 NY2d 531; Matter of Weekes v O’Connell, 304 NY 259; Matter of Kaplan v Rohan, 8 AD2d 270.) II. The "offers in compromise” procedure is void and ineffective by reason of article IV, § 8 of the NY Constitution. (People v Cull, 10 NY2d 123; Matter of Bizarre, Inc. v State Liq. Auth., 29 AD2d 500, 22 NY2d 721; Matter of Valdes v State Liq. Auth., 55 MisC 2d 421.) III. Apart from the invalidity of the "offers in compromise” procedure, the imposition, exaction and collection from petitioner of the sum of $2,750 as a monetary penalty or fine, was in excess of the jurisdiction of the State Liquor Authority. (Matter of Dumbarton Oaks Rest. & Bar v New York State Liq. Auth., 58 NY2d 89.) IV. The Authority, in assessing its penalty, and directing petitioner to remove the "Joker Poker” machine from the licensed premises forthwith, acted without statutory authorization or petitioner’s consent. (Matter of Plato’s Cave Corp. v State Liq. Auth., 68 NY2d 791; Murray v State Liq. Auth., 133 AD2d 569.)
   OPINION OF THE COURT

Per Curiam.

In 1986, the State Liquor Authority instituted a proceeding to revoke or cancel petitioner’s restaurant liquor license, alleging that petitioner mislabeled alcoholic beverage containers in violation of Alcoholic Beverage Control Law § 106 (2) and had suffered or permitted gambling on its premises by maintaining a "Joker Poker” video game in violation of Alcoholic Beverage Control Law § 106 (6). In response, petitioner invoked the Authority’s "offer in compromise” procedure, which enables the licensee to offer to plead "no contest” in exchange for a particular penalty. Under the procedure, the offer is irrevocable and the "no contest” plea automatically becomes effective if the Authority accepts the penalty that the licensee proposed. Petitioner’s offer proposed a maximum penalty of bond forfeiture ($1,000), a seven-day license suspension on the gambling charge, and a fine of $1,750 on the mislabeling charge. The Authority accepted the proposal, imposed the suggested penalties and, in addition, directed petitioner to remove the "Joker Poker” machines from the premises. Petitioner thereafter commenced the present proceeding challenging the regulatory agency’s authority both to establish an "offer in compromise procedure” and to impose a fine in connection with disciplinary proceedings against a licensee.

Supreme Court annulled the Authority’s determination, directed the Authority to return, with interest, the $2,750 petitioner had paid and remanded to the agency for a hearing. Citing section 54.1 (c) (2) of the Authority’s rules (see, 9 NYCRR 54.1 [c] [2]), the court concluded that the agency’s own regulations contemplated compromises only in connection with suspension proceedings and that the Authority therefore had no power to accept an "offer in compromise” in petitioner’s case. The court also noted alternatively that the offer the Authority actually accepted exceeded the terms of section 54.1 (c) (2), which provides the licensee charged in a suspension proceeding "may request that a bond forfeiture or fine be imposed in lieu of any suspension” (emphasis supplied). The Appellate Division affirmed, relying solely on the latter ground. That court then granted the Authority permission to appeal to this court (see, CPLR 5602 [a] [2]), certifying the following question of law: "Was the order of the Supreme Court, as affirmed by this Court, properly made?”

Initially, the Authority is not limited to the compromise procedure suggested in section 54.1 (c) (2) of its rules, which pertains only to suspension proceedings. To the contrary, State Administrative Procedure Act § 301 (5), which permits disposition of any adjudicative proceeding "by stipulation, agreed settlement * * * or other informal method”, gives the Authority a broader power to enter into settlement arrangements or accept "offers in compromise” in other regulatory disputes. Further, since section 54.1 (c) (2) applies only in suspension proceedings, the range of possible compromise penalties it prescribes is not controlling here.

Nonetheless, we conclude that the Authority’s determination was properly annulled. Under the statutory scheme prescribed by the Legislature, the Authority has no power to impose fines for violations of the rules and regulations governing licensees (Matter of Dumbarton Oaks Rest. & Bar v New York State Liq. Auth., 58 NY2d 89). Since fines are not within the categories of permissible penalties authorized by the Legislature, the Authority has no more power to include a fine as part of a compromise settlement than it does to impose a fine following a fully litigated proceeding. Nor can we agree with the Authority’s position that petitioner, having itself proposed the offer in compromise, is now estopped from challenging the Authority’s power to impose a fine. Being punitive in nature, a fine may only be authorized by the Legislature (see, Matter of Dumbarton Oaks Rest. & Bar v New York State Liq. Auth., supra, at 93). Here, the Legislature has expressly withheld from the Authority the power to assess a fine. Matter of Farina v State Liq. Auth. (20 NY2d 484) is not to the contrary; it did not involve the imposition of a criminal sanction, and is, therefore, not determinative here.

This is not to suggest that the Authority and its licensees may not use the "offer in compromise” procedure to bargain for reduced penalties in exchange for "no contest” pleas. We hold only that the bargained-for penalties must remain within the classes of sanctions, such as suspensions and bond forfeitures, that are authorized ill the statutory scheme.

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

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

Order affirmed, etc.


source: Caselaw Access Project

author: Bellacosa, J.

license: Public Domain

text:
    Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, et al., Appellants, v Edward V. Regan, as Comptroller of the State of New York, et al., Respondents.
    Argued April 25,1988;
    decided May 31, 1988

      POINTS OF COUNSEL

      Marjorie E. Karowe for appellants.
    I. Retroactive application of Tier III benefits to employees joining the New York State Retirement System prior to January 1, 1977 is a violation of article V, § 7 of the New York State Constitution. (Public Employees Fedn. v Cuomo, 62 NY2d 450; Matter of Oliver v County of Broome, 113 AD2d 239; Kleinfeldt v New York City Employees’ Retirement Sys., 36 NY2d 95; Matter of Central School Dist. No. 2 v New York State Teachers’ Retirement Sys., 23 NY2d 213.) II. The decision of the court below in this matter was erroneous and should be reversed. (Public Employees Fedn. v Cuomo, 62 NY2d 450; Matter of Oliver v County of

      Broome, 113 AD2d 239.) III. Historical precedent in this court demonstrates strong policy consideration against retroactive diminution of retirement benefits. (Roddy v Valentine, 268 NY 228; Birnbaum v New York State Teachers Retirement Sys., 51 NY2d 1; Matter of Day v Mruk, 307 NY 349; Kleinfeldt v New York City Employees’ Retirement Sys., 36 NY2d 95; Kranker v Levitt, 30 NY2d 574; Matter of Weber v Levitt, 34 NY2d 797; Mutterperl v Levitt, 89 Misc 2d 428, 41 NY2d 956; Matter of Coller v State Univ., 80 AD2d 166.)

      Robert Abrams, Attorney-General (Peter G. Crary, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
    I. Chapter 890 of the Laws of 1976 clearly laid out the retirement rights for members who joined a public retirement system after its enactment on July 27, 1976, making them members of Tier III and giving them rights under Tier II only until December 31, 1976. (People v Mobil Oil Corp., 48 NY2d 192; Rankin v Shanker, 23 NY2d 111; Matter of Oliver v County of Broome, 113 AD2d 239.) II. Application of Tier III to the named plaintiffs on January 1, 1977 was consistent with their constitutionally protected retirement contract, as defined by statutes in place upon their dates of employment. (Birnbaum v New York State Teachers Retirement Sys., 5 NY2d 1; Public Employees Fedn. v Cuomo, 62 NY2d 450; Kleinfeldt v New York City Employees’ Retirement Sys., 36 NY2d 95; Mutterperl v Levitt, 89 Misc 2d 428, 41 NY2d 956; Matter of Donner v New York City Employees’ Retirement Sys., 33 NY2d 413.)

      Christopher H. Gardner, Richard E. Casagrande and Richard O’Hara for Council 82, AFSCME, AFL-CIO and others, amici curiae.

    I. Chapter 890 of the Laws of 1976, when construed pursuant to applicable principles of contract law and statutory construction, is too vague to support the decision of the court below. (Matter of Oliver v County of Broome, 113 AD2d 239, 67 NY2d 607, 1027; Public Employees Fedn. v Cuomo, 62 NY2d 450.) II. Plaintiffs’ benefits of membership in a pension or Retirement System were diminished or impaired when they were removed from Tier III on January 1, 1977. (Matter of Oliver v County of Broome, 113 AD2d 239, 67 NY2d 607, 1027; Birnbaum v New York State Teachers Retirement Sys., 5 NY2d 1; Public Employees Fedn. v Cuomo, 62 NY2d 450.) III. Article V, § 7 of the State Constitution was enacted to prevent the diminishment and impairment of public employee retirement benefits as established on the date of the employee’s membership in the system, and makes the Tier II membership status granted until January 1, 1977 a vested contractual right. (Roddy v Valentine, 268 NY 228; Matter of Day v Mruk, 307 NY 349; Birnbaum v New York State Teachers Retirement Sys., 5 NY2d 1.)
   OPINION OF THE COURT

Bellacosa, J.

Article V, § 7 of the New York State Constitution provides valued safeguards for public employees against the diminishment or impairment of pension rights which are fixed and determined by the laws and conditions in existence at the time membership in the pension system commences. We agree with the Appellate Division that chapter 890 of the Laws of 1976 did not violate that constitutional protection as to employees hired between July 27, 1976 and December 31, 1976— the individual appellants here joined in December 1976 — by conferring in a complementary prospective legislative package Tier II benefits only until December 31, 1976, at which time they matured into Tier III benefits.

Appellants are two public employees — Nogas, employed by the County of Oneida, and Waterhouse, by the State — and their labor union representative (Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO). Nogas and Waterhouse were afforded benefits under the provisions of Retirement and Social Security Law article 11, commonly referred to as Tier II, until December 31, 1976 and thereafter to those under Tier III (Retirement and Social Security Law art 14). The tier downshift occurred automatically under the complementary pension package established in the single prospective legislative act designed to accommodate emergency circumstances (L 1976, ch 890, § 4 [Retirement and Social Security Law § 451]).

This action was commenced seeking a judgment declaring that public employees who joined the Retirement System between July 1, 1976 and December 31, 1976 are members of Tier II and that the conversion to Tier III rights and benefits for such employees is violative of NY Constitution, article V, § 7. The trial court declared for plaintiffs and granted them ancillary, implementing relief as well.

The Appellate Division reversed and declared that the ultimate classification of appellants Nogas and Waterhouse as Tier III members did not violate the constitutional protection. It reasoned that chapter 890 of the Laws of 1976, made contractual by operation of the Constitution, provided the appellants with a complementary package of pension rights and benefits including Tier II status only until January 1, 1977, and thereafter only those benefits conferred under Tier III. The Appellate Division qualified its holding by affording public employees who joined between July 1, 1976 and the date that chapter 890 was actually signed into law, July 27, 1976, permanent Tier II status. The plaintiffs’ appeal is as of right on substantial constitutional question grounds (CPLR 5601 [b] [1]). We affirm.

Tier II was created by the Laws of 1973 (ch 382) for a period of three years only and was to lapse as an available category on June 30, 1976. The Legislature, engaged in negotiations over pension reform legislation, had not agreed upon a replacement system as of July 1, 1976. It thus passed an extension of Tier II (L 1976, ch 491). On July 27, 1976, Governor Carey signed a comprehensive pension reform bill (Retirement and Social Security Law art 14 [L 1976, ch 890]), which provided that Tier III status be afforded all employees hired after July 1, 1976 (Retirement and Social Security Law § 500 [ch 890, § 1]), retroactively directed permanent closure to Tier II as of July 1, 1976 (ch 890, § 5), and established January 1, 1977 as the effective date of Tier III (L 1976, ch 890, § 9). To bridge the period between the closure of Tier II and the effective date of Tier III, the new law provided that: "[notwithstanding * * * any other law, effective July first, nineteen hundred seventy-six, all benefits provided by an actuarially funded public retirement system of the state of New York or any municipality thereof shall continue with respect to members to which article fourteen is applicable only until December thirty-first, nineteen hundred seventy-six” (Retirement and Social Security Law § 451 [ch 890, § 4] [emphasis supplied]).

We hold that simultaneously prescribing Tier III status to public employees who are preliminarily afforded Tier II rights and benefits does not constitute an unconstitutional impairment or diminution of a fixed public retirement contractual right as to those entering between July 27, 1976, the date of signing of chapter 890, and December 31, 1976. Their rights were fully established by the laws and conditions in effect when their membership commenced. Inclusion of a complementary and prospective condition in a definite, known and fixed pension package in these circumstances satisfies the constitutional protection and our precedents.

New York Constitution, article V, § 7 was adopted in 1938 in response to Roddy v Valentine (268 NY 228). This court there held that retirement benefits were not contractual and could be legislatively altered until the member actually retired (see, Public Employees Fedn. v Cuomo, 62 NY2d 450, 459; Birnbaum v New York State Teachers Retirement Sys., 5 NY2d 1, 8). In response to Roddy, article V, § 7 provides in pertinent part that "membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired” (NY Const, art V, § 7 [emphasis supplied]).

The rights of public employees are thus fixed as of the time the employee becomes a member of the system. We have consistently held that the constitutional prohibition against diminishing or impairing retirement benefits "prohibits official action during a public employment membership in a retirement system which adversely affects the amount of the retirement benefits payable to the members on retirement under laws and conditions existing at the time of*** entrance into retirement system membership” (Birnbaum v New York State Teachers Retirement Sys., 5 NY2d 1, 11, supra [emphasis supplied]; Kleinfeldt v New York City Employees’ Retirement Sys., 36 NY2d 95, 101-102). Where "changes were applied retroactively to prior members of a public retirement system, they were held unconstitutional on the theory that a member’s rights were frozen as of the date of employment and that any changes lessening benefits must be made prospectively” (Public Employees Fedn. v Cuomo, 62 NY2d 450, 460, supra [emphasis supplied]; Matter of Central School Dist. No. 2 v New York State Teachers’ Retirement Sys., 23 NY2d 213, 232 [no benefit, once enacted, may later be discontinued]).

In securing a public employee’s retirement rights, "[t]he Constitution does not, in terms or otherwise, preserve naked pension rights qua rights but, rather, the benefits of the contractual relationship (i.e., 'a contractual relationship, the benefits of which shall not be diminished or impaired’ [emphasis supplied]). Thus, we must look to the contract for both the source and the definition of plaintiff’s benefits” (Mutterperl v Levitt, 89 Misc 2d 428, 431, affd on opn of Gibson, J., 41 NY2d 956). The contractual relationship governing persons joining the Retirement System between July 27, 1976 and December 31, 1976 is fully established by the Laws of 1976 (ch 890). That enactment was the operative "law and condition” at the time appellants acquired membership. While the Tier III component of chapter 890 (i.e., ch 890, § 1) had an effective date of January 1, 1977, other sections completed the plenary and constitutionally preserved contractual relationship for the appellant employees. Chapter 890 thus created a prospective complementary rights and benefits package, fixed for members who joined the system during the relevant period: Tier II benefits "only until” December 31, 1976 (L 1976, ch 890, § 4; Retirement and Social Security Law § 451) and thereafter Tier III benefits. Insofar as the staggered retirement package established the rights of those who acquired membership between July 27 and December 31, the automatic shift of such employees to Tier III rights in no way constitutes a diminishment or impairment of the contractual rights conferred at the time of membership (see, Mutterperl v Levitt, supra, at 431; Birnbaum v New York State Teachers Retirement Sys., 5 NY2d 1, 11, supra).

Appellants contend, however, that the Legislature intended permanent Tier II status for members joining through December 31, 1976, and that Tier III was to apply only to members joining after December 31, 1976. They also assert that restriction to Tier III benefits for them is prohibited by our decisions in Public Employees Fedn. v Cuomo (62 NY2d 450, supra) and Kleinfeldt v New York City Employees’ Retirement Sys. (36 NY2d 95, supra).

The legislation at issue is not ambiguous in respect to the issue we must decide and on its face it is contrary to appellants’ argument (see, Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669 [decided today]). Moreover, the legislative history of chapter 890 confirms a comprehensive package creating "a new retirement program for employees hired on or after July 1, 1976” (Governor’s Message of Approval, 1976 McKinney’s Session Laws of NY, at 2455). The Permanent Commission on Public Employee Pension and Retirement Systems noted, in recommending approval by the Governor, that "[t]he second effect of the amendment to Section 451 is to make Article 11 available for employees who joined or rejoined a public retirement system after July 1, 1976, but only until December 31, 1976. Thus, new employees will be temporarily eligible for benefits under Article 11 until CO-ESC [Tier III] takes effect on January 1, 1977. This should give the various retirement systems sufficient time to implement the new retirement plan” (Mem, July 15, 1976, Governor’s Bill Jacket, L 1976, ch 890; see also, Mem of Robert J. Morgado, Secretary to Governor, Governor’s Bill Jacket, L 1976, ch 890). The legislative history of chapter 890 demonstrates that at the time of enactment the legislation was understood to create a complementary package under which new employees would receive Tier II rights only until Tier III could be made operational.

Finally, Public Employees Fedn. v Cuomo (62 NY2d 450, supra) and Kleinfeldt v New York City Employees’ Retirement Sys. (36 NY2d 95, supra) support this analysis and result. In Public Employees (supra), we declared that retirement rights and benefits enacted for a "temporary” period could not be constitutionally diminished or impaired by subsequent legislation passed after the sunset provision set. The "temporary period” addressed in Public Employees (supra) referred to the limited duration of the retirement system tier enacted with its own specific sunset provision; there was no self-contained complementary new sunrise component there. That situation was therefore quite different from the express component scheduled to evolve during the life of and as an integral part of the statute in this case. Thus, the transition from the ephemeral period of coverage under Tier II rights to Tier III rights in this case was prospectively and simultaneously effectuated by the contractual (statutory) provisions in existence as of the date of employees’ membership. This shift in tier classification was not a Retirement System vicissitude and was by no rendering the forbidden "temporary” pension fruit under Public Employees Fedn. (supra).

Chapter 890 has a retroactive effective date of July 1, 1976, though it was not signed into law until July 27, 1976. As the Appellate Division has noted, application of the law’s provisions to Retirement System members prior to July 27, 1976, would be a forbidden retroactive application which would diminish the rights of persons under the Tier II provisions then in existence. Thus, the effective date of chapter 890 for purposes of deciding this lawsuit should be July 27, 1976, as the Retirement System acknowledges in its brief and as Kleinfeldt v New York City Employees’ Retirement Sys. (36 NY2d 95, supra) teaches (see, Matter of Oliver v County of Broome, 113 AD2d 239, Iv denied 67 NY2d 607, appeal dismissed 67 NY2d 1027). That, of course, does not entitle appellants Nogas and Waterhouse to any relief as they were hired in December 1976, well within the constitutionally authorized legislative scheme.

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

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, and Hancock, Jr., concur.

Order affirmed, with costs.


author: Alexander, J.

text:
    The People of the State of New York, Respondent, v Benito Lopez, Appellant.
    Argued April 25, 1988;
    decided June 2, 1988

      POINTS OF COUNSEL

      Bruce J. Cohen for appellant.
    I. Defendant’s guilty plea to the crime of manslaughter in the first degree was insufficient and defective, and should be vacated as a matter of law and because of a constitutional deprivation. (People v Swinson, 111 AD2d 275; People v Pascale, 66 AD2d 653, 48 NY2d 997; People v Serrano, 15 NY2d 304; People v Wedgewood, 106 AD2d 674; People v Cepeda, 88 AD2d 980; People v Lee, 90 AD2d 960; People v Dingelday, 84 AD2d 962; People v Harris, 61 NY2d 9; People v Francis, 38 NY2d 150; McCarthy v United States, 394 US 459.) II. Where the deficiencies and errors in defendant-appellant’s allocution of guilt are apparent from the record of the plea hearing, no formal protest or vacatur mechanism is necessary to preserve those errors for appellate review. Assuming arguendo, however, that a formal objection or motion must be made in the court of first instance, then such protest was registered at a time when effective correction could have been undertaken. (People v Francis, 38 NY2d 150; People v Beasley, 25 NY2d 483; People v Serrano, 15 NY2d 304; People v Sobszak, 105 AD2d 1053; People v Cooks, 67 NY2d 100; People v Patterson, 39 NY2d 288; People v Adams, 38 NY2d 605; People v McGowen, 42 NY2d 905; People v Adams, 46 NY2d 1047; People v Primmer, 46 NY2d 1048.) III. A prior felony plea of defendant was unconstitutionally obtained and thus the sentencing of defendant as a second felony offender was error as a matter of law. (People v Bennett, 86 AD2d 674; People v Harris, 61 NY2d 9; People v De Carlo, 126 Misc 2d 221; People v Tortorice, 93 AD2d 950.)

      Robert M. Morgenthau, District Attorney (Norman Barclay, Amyjane Rettew and Laura M. Barnhill of counsel), for respondent.
    I. Defendant’s unpreserved attack on his plea allocution is refuted by the record. (People v Claudio, 64 NY2d 858; People v Pellegrino, 60 NY2d 636; People v Pascale, 48 NY2d 997; People v Delaney, 48 NY2d 972; People v Warren,
      47 NY2d 740; People v Bell, 47 NY2d 839; People v Adams, 46 NY2d 1047; People v Harris, 61 NY2d 9; People v Nixon, 21 NY2d 338, cert denied sub nom. Robinson v New York, 393 US 1067; North Carolina v Alford, 400 US 25.) II. Defendant’s claim that his lawyer was not competent is not fairly before this court, since the People have not been given an opportunity to refute the claim; in any event, the record, even as sparse as it is, proves defense counsel’s performance was entirely effective. (People v Kinchen, 60 NY2d 772; People v Charleston, 54 NY2d 622; People v Brown, 45 NY2d 852; People v Love, 57 NY2d 998; Marshall v Lonberger, 459 US 422; People v Angelakos, 70 NY2d 670; Nix v Whiteside, 475 US 157; People v Appel, 120 AD2d 319.) III. Defendant’s prior felony conviction was constitutionally obtained and, therefore, served as a proper basis for sentencing him as a second felony offender. (People v Harris, 61 NY2d 9; People v Winchell, 64 NY2d 826.)
   OPINION OF THE COURT

Alexander, J.

Defendant was charged in a one-count indictment with murder in the second degree (Penal Law § 125.25 [1]). The indictment alleged that defendant had intentionally caused the death of Herbert William Badgley "by stabbing him with a sharp instrument”. After extensive consultations with counsel and family members, defendant accepted a negotiated plea arrangement under which he would plead guilty to the lesser crime of manslaughter in the first degree (Penal Law § 125.20) in full satisfaction of the indictment. During the plea allocution, however, defendant made statements that raised the possibility of a justification defense and the possibility that he lacked the requisite criminal intent. These statements prompted the prosecutor to express concerns regarding the adequacy of the allocution. The court inquired further into these matters in order to determine whether defendant possessed the necessary criminal intent and whether there existed a viable justification defense. Following its further inquiry, the court announced that it was satisfied with the allocution and accepted the guilty plea. Defendant neither moved to withdraw his plea nor to vacate the judgment of conviction; rather, he sought to challenge the sufficiency of the plea allocution for the first time on direct appeal.

The Appellate Division, with one Justice dissenting, affirmed defendant’s conviction, concluding that he had waived any challenge to the sufficiency of the plea allocution by not moving to withdraw his plea or to vacate the judgment of conviction. Defendant appeals to this court by permission of the dissenting Justice, contending that his allocution was deficient, that this deficiency was not cured by the trial court’s further inquiry, and that no postallocution motion was required to preserve the issue for appeal. For the reasons discussed below, we hold defendant has failed to preserve his challenge to the sufficiency of the allocution, and affirm the order below.

I.

In order for there to be a question of law reviewable by this court, the trial court generally must have been given an opportunity to correct any error in the proceedings below at a time when the issue can be dealt with most effectively (CPL 470.05 [2]; see, People v Michael, 48 NY2d 1, 6) "The requirement that a claim must be timely raised in order to create a question of law is grounded in large part in the need to preserve limited judicial resources and avoid untoward delay in the resolution of criminal proceedings” (People v Michael, 48 NY2d, at 6, supra). Although a defendant must be afforded an opportunity to challenge the legality of the proceedings at issue, "the very real interest of the State in achieving finality in a criminal prosecution mandates that such objections be timely raised” (People v Michael, 48 NY2d, at 6, supra). Thus, we have held that in order to preserve a challenge to the factual sufficiency of a plea allocution there must have been a motion to withdraw the plea under CPL 220.60 (3) or a motion to vacate the judgment of conviction under CPL 440.10 (see, People v Claudio, 64 NY2d 858; People v Pellegrino, 60 NY2d 636; People v Pascale, 48 NY2d 997; People v Bell, 47 NY2d 839; People v Warren, 47 NY2d 740). The failure to make the appropriate motion denies the trial court the opportunity to address the perceived error and to take corrective measures, if needed. .

In that rare case, however, where the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea, we have held that the trial court has a duty to inquire further to ensure that defendant’s guilty plea is knowing and voluntary (see, People v Francis, 38 NY2d 150, 153; People v Beasley, 25 NY2d 483, 487-488; People v Serrano, 15 NY2d 304, 309; see generally, People v Harris, 61 NY2d 9). Thus, where a defendant’s factual recitation negates an essential element of the crime pleaded to, the court may not accept the plea without making further inquiry to ensure that defendant understands the, nature of the charge and that the plea is intelligently entered (see, People v Beasley, 25 NY2d 483, supra [factual recitation appeared to negate essential element and evidence showed defendant may not have understood nature of charge]; People v Serrano, 15 NY2d 304, supra [factual recitation negated essential element]). Where the court fails in this duty and accepts the plea without further inquiry, the defendant may challenge the sufficiency of the allocution on direct appeal, notwithstanding that a formal postallocution motion was not made (People v Beasley, 25 NY2d 483, supra; People v Serrano, 15 NY2d 304, supra,). In such cases, the court’s attention should have been instantly drawn to the problem, and the salutary purpose of the preservation rule is arguably not jeopardized.

II.

Defendant contends that his plea allocution falls within this narrow exception to the preservation requirement because his description of the facts underlying his guilty plea negated an essential element of manslaughter in the first degree — the intent to cause serious physical injury (Penal Law § 125.20)— and also raised the possibility of a justification defense. Defendant’s contention must be rejected. Although defendant’s responses to one series of questions posed by the court indicated that he may not have intended to cause serious physical injury, that he was merely attempting to defend himself against a knife-wielding aggressor, that he "didn’t want to hurt” the victim, and that he had "feared for his life” throughout the incident, the court did not accept defendant’s guilty plea upon such a questionably sufficient allocution. Rather, the court — alerted by defendant’s statements and the concerns of the prosecutor, who twice interrupted the allocution to question the sufficiency of defendant’s factual recitation — inquired further to ensure the validity of the plea. Based upon this expanded allocution, the court accepted the plea, concluding that defendant’s behavior clearly evinced an intent to cause serious physical injury (see, People v McGowen, 42 NY2d 905, 906) and that there was no viable justification defense. Defendant raised no further objection, nor did he thereafter seek to withdraw the plea or to vacate the judgment of conviction.

The plea minutes demonstrate that the trial court, when confronted with statements casting significant doubt upon defendant’s guilt, properly conducted further inquiry to ensure that defendant’s plea was knowing and voluntary; that he possessed the necessary criminal intent; and that there was no possibility of a justification defense. Having failed to express, in any way, dissatisfaction with the court’s remedial action, defendant has waived any further challenge to the allocution, and thus no issue is preserved for our review (People v Claudio, 64 NY2d 858, supra). We have examined defendant’s remaining contentions and find them to be without merit.

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

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed.

      . The Appellate Division majority declined to exercise its discretionary power to review any alleged error in the allocution, finding that the trial court’s inquiry into the facts established defendant’s criminal intent and negated any possible justification defense. The court further concluded that, viewing the allocution in its entirety, and in light of defendant’s obvious familiarity with the criminal justice system and his extensive consultations with family members and counsel, the plea was a knowing and voluntary one.

      . The court’s duty to inquire further is not triggered merely by the failure of a pleading defendant, whether or not represented by counsel, to recite every element of the crime pleaded to and, insofar as People v Serrano (15 NY2d 304) may be viewed as holding to the contrary, it should not be followed. "Judges are not expected to be omniscient” and "there is no requirement that the Judge conduct a pro forma inquisition in each case on the off-chance that a defendant who is adequately represented by counsel and who admits the underlying facts may nevertheless not know what he is doing” (People v Francis, 38 NY2d 150, 154). Where there is no suggestion from the allocution that the guilty plea is "improvident or baseless”, there is obviously nothing to alert the trial court to a potential problem or to trigger a further inquiry (People v Nixon, 21 NY2d 338, 350).

      . The court assessed the availability of a justification defense in the following colloquy:
      "the court: After conferring with your attorney, Mr. Lopez, again I ask you, just before you plunged the knife into Herbert William [Badgley] were you free to leave the area?
      "the defendant: Yes, your Honor, I guess I was.
      "the court: Did anybody constrain you or hold you back just before you plunged the knife into Mr. [Badgley]?
      "the defendant: No.”
      When the prosecutor continued to express reservations about the adequacy of the allocution, particularly with respect to defendant’s criminal intent, the court engaged in further inquiry as follows:
      "the court: Perhaps an inquiry into the area as to where the knife wound was inflicted * * * might clarify [defendant’s intent] * * * When you plunged the knife into Mr. [Badgley], the deceased, what part of his body did you put the knife into?
      "the defendant: I didn’t take aim, it just happened.
      "the court: Where did the knife go?
      "the defendant: From the autopsy in the chest.
      "the court: What part of the chest? In the middle, left or right?
      "the defendant: Close to the heart.”


text:
    Doctors Council et al., Appellants, v New York City Employees’ Retirement System et al., Respondents.
    Argued April 21, 1988;
    decided May 31, 1988

      POINTS OF COUNSEL

      Richard M. Betheil and Ronald H. Schechtman for appellants.
    I. The court below erred when it refused to apply the Administrative Code as written to confer eligibility for membership on plaintiffs. (New York State Bankers Assn. v Albright, 38 NY2d 430; Matter of Barton v Lavine, 38 NY2d 785; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; McCluskey v Cromwell, 11 NY 593; Matter of Shea v Falk, 10 AD2d 142, 8 NY2d 1071; Matter of Fay v Regan, 97 AD2d 192; People v Eulo, 63 NY2d 341; Matter of Manhattan Pizza Hut v New York State Human Rights Appeal Bd., 51 NY2d 506.) II. The court below erred when it relied on the doctrine of practical construction to affirm the grant of summary judgment to defendants. (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Servomation Corp. v State Tax Commn., 51 NY2d 608; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539; Matter of Caraballo v Community School Bd., 49 NY2d 488; Matter of Town of Mamaroneck PBA v New York State Pub. Employment Relations Bd., 66 NY2d 722; Matter of Jesselli v New York City Employees’ Retirement Sys., 107 AD2d 227.) III. The court below erred when it affirmed the order and judgment granting summary judgment to defendants even though material facts were in dispute. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Esteve v Abad, 271 App Div 725.)

      Peter L. Zimroth, Corporation Counsel (Barry P. Schwartz and Fay Leoussis of counsel), for respondents.
    The court below properly affirmed Special Term’s declaration that the New York City Administrative Code does not require part-time employees to be granted the rights and benefits of membership in the New York City Employees’ Retirement System. (Matter of Consolidated Mut. Ins. Co. [Arcade Cleaning Contrs. —Superintendent of Ins.], 60 NY2d 1; Schampier v Office of Gen. Servs., 73 AD2d 1011, 52 NY2d 746; Matter of Howard v Wyman, 28 NY2d 434; Matter of Verdecanna v Carey, 285 NY 130; Zappone v Home Ins. Co., 55 NY2d 131; Uniformed Firefighters Assn. v Beekman, 52 NY2d 463; Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151; Matter of Colt Indus. v New York City Dept. of Fin., 66 NY2d 466; Matter of Robins v Blaney, 59 NY2d 393.)

      Robert Perez-Wilson and Joel Giller for Stanley Hill, amicus curiae.

    I. The decisions below are predicated on an erroneous construction of the law concerning independent contractors. (Avis Rent A Car Sys. v United States, 503 F2d 423; Matter of Pelow v Sork Enters., 39 AD2d 494, 33 NY2d 944; Mav Frgt. Serv. v United States, 462 F Supp 503; Irwin v Klein, 271 NY 477; Matter of Beach v Velzy, 238 NY 100; Hexamer v Webb, 101 NY 377; Matter of Alford, 260 App Div 826, 286 NY 651.) II. Part-time employees are eligible for NYCERS membership by statute and case law. (Park of Edgewater v Joy, 68 AD2d 107; Matter of Country-Wide Brokerage v Harnett, 58 AD2d 517; New York State Bankers Assn. v Albright, 38 NY2d 430; Sega v State of New York, 60 NY2d 183; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; Matter of Verdecanna v Carey, 285 NY 130; Matter of Jesselli v New York City Employees’ Retirement Sys., 107 AD2d 227; Matter of Fay v Regan, 97 AD2d 192; Matter of Shea v Falk, 10 AD2d 142.) III. The doctrine of practical construction cannot be invoked here to find that the statute excludes part-timers from NYCERS membership. (Ram v Blum, 533 F Supp 933.) IV. The courts below relied upon inaccurate and misleading data in finding that the cost of part-time employee participation in NYCERS would be significant.
   OPINION OF THE COURT

Bellacosa, J.

We agree with the views expressed in the dissent at the Appellate Division that the pertinent statute is plain on its face, warranting summary judgment in favor of plaintiffs on the first cause of action entitling them as part-time employees to membership in the New York City Employees’ Retirement System (NYCERS). Thus, the Appellate Division order insofar as appealed from should be reversed and the certified question answered in the negative.

Appellants are seven part-time doctors and their collective bargaining representative (jointly Doctors Council) which represents 1,300 part-time and 600 full-time doctors employed by the City of New York (City) or the New York City Health and Hospitals Corporation (HHC). In December 1981, 4 of the 7 doctors, already members of respondent NYCERS, sought a change in their retirement status and the other 3 sought retroactive membership.

Previously, in January 1981, respondent Herkommer, NYCERS’ Executive Director, informed his Board of Trustees that part-time employees, primarily doctors and dentists in these instances, had been mistakenly afforded NYCERS membership. After reviewing the history and an in-house evaluation of this prior practice, together with a memorandum from the New York City Corporation Counsel concluding that the Board lacked power to provide NYCERS eligibility to part-time employees, the Board adopted a November 6, 1981 resolution declaring its impotency in this regard. It added that part-time employees should be denied membership in the future, but that part-time employees accepted into the system prior to the resolution would be permitted to continue as members. The appellant doctors’ applications were not processed.

Doctors Council brought an action seeking declaratory and injunctive relief directing that part-time doctors are entitled to NYCERS’ membership and that otherwise qualified part-time doctors within the system are entitled to change their membership status. Defendants countersought a declaration that NYCERS’ membership is limited to full-time employees.

Each side moved for summary judgment; the City’s papers contended that NYCERS had a continuing and long-standing policy of excluding part-time employees from membership, although some had inadvertently been accepted. In support of this claim, NYCERS relied upon: the Retirement System Handbook which provides that membership is available to "employees in full-time positions”; opinions by City Corporation Counsels from 1936, 1937 and 1974 stating part-time employees are ineligible; and three memoranda from 1970 and 1971 by an ex-Secretary of NYCERS (the then chief administrative position in NYCERS). NYCERS argued in the lower courts that these materials are bolstered by rule 11 (f), adopted in 1947, which purportedly formalized the exclusion of part-time employees consistent with the Corporation Counsel opinions of 1936 and 1937. Rule 11 (f) provides in part that "[n]o person who is paid other than a regular per annum salary, [or] who renders less than full-time service * * * shall, by such service, acquire any right or benefit in the retirement system.” This argument was abandoned before our court.

The plaintiff doctors asserted their reliance upon representations by the City of entitlement to membership in NYCERS and that it had been the "regular and consistent policy” of NYCERS prior to November 6, 1981 to grant membership to part-time doctors. The Executive Director of the Doctors Council added that as a part-time doctor he had been "required” to join the retirement system as a "condition of employment”, that approximately 500 part-time doctors in the employ of the City and HHC were NYCERS members, and that hundreds of others had retired with NYCERS benefits. The ex-Secretary of NYCERS, who authored the 1970 and 1971 memoranda relied upon by the City, stated that prior to 1970 all part-time employees were entitled to NYCERS membership and that the memoranda reflected a change in position which was based solely upon the advice of the Corporation Counsel. Both those memoranda expressed that physicians and dentists had been exempted from the so-called general exclusion of part-time employees from membership. A former City Assistant Director of Labor Relations, who had negotiated contracts covering medical personnel employed by the City and HHC, maintained that during his tenure doctors were entitled to and accorded NYCERS membership, that doctors were hired on the representation of the availability of NYCERS membership, and that he was unaware of any doctor denied such benefits.

Insofar as pertinent, Special Term rejected plaintiffs’ motion for summary judgment and declared that Administrative Code of the City of New York § 13-101 (3) and § 13-104 did not entitle the doctors to NYCERS membership. Noting that there was no legislative history for the section, the court relied largely upon the history of the City’s asserted construction of the code provision and rule 11 (f).

The Appellate Division agreed in that respect, relying on the principles that "[ajbsence of facial ambiguity is * * * rarely, if ever, conclusive” and that "[s]ound principles of statutory interpretation generally require examination of a statute’s legislative history and context to determine its meaning and scope” (New York State Bankers Assn. v Albright, 38 NY2d 430, 434, 436; Uniformed Firefighters Assn. v Beekman, 52 NY2d 463, 471). It accepted rule 11 (f), the NYCERS staff memoranda, the opinions of the Corporation Counsel, and the absence of legislative amendment of this historical construction as the basis for holding that these part-time City employees are not entitled to NYCERS membership.

Presiding Justice Murphy disagreed. He reasoned that these part-timers were eligible for membership pursuant to the unambiguous language of the code which is controlling under clear precedent, and that the doctrine of practical construction was inapplicable because NYCERS never had a consistent policy of excluding part-timers and, even if it had such a policy, it would be of no consequence where contrary to the plain language of the code. Leave to appeal on a certified question was granted by the Appellate Division.

The membership requirements of NYCERS have not changed since it was created in 1920 (see, L 1920, ch 427). "[Membership * * * shall consist of * * * [a]ll persons in city-service” (Administrative Code of City of New York § 13-104 [former § B3-3.0]). " 'City-service’ shall mean service, whether appointive or elective, as an officer or employee of the city * * * so far as such service is paid for by the city” and shall include "[sjervice as a paid employee of * * * the New York city health and hospitals corporation” (Administrative Code § 13-101 [3] [a], [b] [former § B3-1.0 (3)]).

In Matter of Verdecanna v Carey (285 NY 130, 135), this court held that employment as a part-time street sweeper satisfied the criteria of "service in said department” entitling the employee’s widow to pension fund benefits. The statutory eligibility criteria in Verdecanna (supra) was uncommonly simple as is the "in city-service” standard of this case.

"Where the statute is clear and unambiguous on its face, the legislation must be interpreted as it exists. Absent ambiguity the courts may not resort to rules of construction to broaden the scope and application of a statute” (Bender v Jamaica Hosp., 40 NY2d 560, 561-562 [citations omitted]). "It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature, and where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” (Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208 [citations omitted]).

This is not to say, however, that the language of a statute must in all circumstances be literally or mechanically applied when, due to significantly changed circumstances, such application would cause an anachronistic or absurd result contrary to the contextual purpose of the enactment. Here, by contrast, the statutory protection of all persons in city-service, designed to exclude persons such as independent contractors, remains as important and relevant in this, case as when the statute was passed and continues to give effect to the statute’s intended purpose and policy.

The reasoning, adopted by the lower courts, of New York State Bankers Assn. v Albright (38 NY2d 430, supra) and Uniformed Firefighters Assn. v Beekman (52 NY2d 463, supra) is inapplicable to the unqualified statutory definition in this case. Consideration of extrinsic factors is impermissible where the Legislature’s direction is clear; where the statute is not ambiguous when read in context; where the plain meaning of the statute would not lead to " 'absurd or futile results’ ” or even unreasonable results " ' "plainly at variance with the policy of the legislation as a whole” ’ ” (New York State Bankers Assn. v Albright, 38 NY2d 430, 437, supra, quoting United States v American Trucking Assns., 310 US 534, 543-544). Nor is there in this case any "extensive legislative history [which] shows that the literal reading proposed * * * would frustrate the statutory purposes” (Uniformed Firefighters Assn. v Beekman, 52 NY2d 463, 471, supra).

Even if the practical construction by NYCERS, now urged by the City was itself consistent and definitive, which it is not in this case, no special interpretative or policy deference should be accorded against the plain language of the statute. The interpretation of this statute does not require special "knowledge and understanding of underlying operational practices or entail[s] an evaluation of factual data and inferences to be drawn therefrom” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459). The critical eligibility words are "[a]ll persons in city-service” and "employees” and they are nowhere limited or qualified. Thus, in this case, we need go no further than the statute (id., at 459; Servomation Corp. v State Tax Commn., 51 NY2d 608, 613). To employ practical construction analysis under these facts "does nothing more than urge ambiguity where none exists” (Sega v State of New York, 60 NY2d 183, 190).

The record establishes, in any event, that NYCERS had no practical construction which could have been relied upon in construing the Administrative Code provision. The City argued that NYCERS’ rule 11 (f) was adopted to implement formally the Corporation Counsel’s opinions of 1936 and 1937 that part-time employees were not entitled to membership. Insofar as only one element of the rule concerns full-time employment, the City’s argument could succeed only if the rule were read disjunctively. Applying the criteria of the rule separately would have the effect of excluding full-time employees who fail to meet any of the other components (e.g., full-time legislative sessional employees). The City now concedes that the criteria of rule 11 (f) should be read conjunctively, and that it was meant to exclude persons such as independent contractors, and that the rule does not deal expressly with the exclusion of part-timers. This very vacillation on the existence of implied authority for an exclusion of part-time employees undermines the reliance on NYCERS’ practical construction given by the Appellate Division. A practical construction of a law will not be applied by courts where the proffered interpretation has been erratically applied or is contrary to the plain wording of the statute itself (compare, Matter of Hellerstein v Assessor of Town of lslip, 37 NY2d 1).

The NYCERS Board of Trustees surely lacks the authority to create retirement eligibility; it likewise lacks the power to disentitle employees whom the Legislature has endowed. To countenance the latter, as has been urged here by the City, would allow the agency to, in effect, amend the heart of this statute. "An administrative agency cannot by regulatory fiat directly or indirectly countermand a statute enacted by the Legislature” (Servomation Corp. v State Tax Commn., 51 NY2d 608, 612, supra; see, Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459, supra). Where, as here, the statute described the particular class of persons, "an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” (McKinney’s Cons Laws of NY, Book 1, Statutes § 240; see, Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340, 345). Thus, the resolution of the NYCERS Board of Trustees cannot be legitimized by judicial ratification (see, Matter of Industrial Commn. of State of N. Y. v Five Corners Tavern, 47 NY2d 639, 646-647).

The statutory eligibility for NYCERS membership as applicable to these plaintiffs, part-time doctors in New York City Health and Hospitals Corporation employ, is plain and unqualified and must be given effect. That is the judicial function in this case. Fiscal, collective bargaining and other public policy ramifications of this case in regard to this result and its precedential implications are concerns for the legislative and executive functions (Matter of Hellerstein v Assessor of Town of lslip, 37 NY2d 1, 13-14, supra).

Accordingly, the order of the Appellate Division insofar as appealed from should be reversed, with costs to plaintiffs, summary judgment should be granted declaring in favor of the plaintiffs on the first cause of action, and the certified question should be answered in the negative.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.

Order insofar as appealed from reversed, etc.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v Mortechi Aharonowicz, Appellant.
    Argued April 26, 1988;
    decided June 7, 1988

      POINTS OF COUNSEL

      Vincent A. Malito for appellant.
    I. The trial court’s erroneous jury charge on character evidence requires reversal. The error assigned is that, through the decades, the correct law has never been precisely articulated by the Court of Appeals and the concepts drawn from this line of case law have been blurred. This fundamental error of law deprived appellant of his right to be fairly tried, under the State and Federal Constitutions. (People v Bonier, 179 NY 315; People v Conrow, 200 NY 356; People v Roach, 215 NY 592; People v Colantone, 243 NY 134; People v Trimarchi, 231 NY 263; People v Miller, 35 NY2d 65; People v Bouton, 50 NY2d 130; People v Pryor, 70 AD2d 805; People v Ingram, 49 NY2d 865; People v Gordon, 40 AD2d 835.) II. The evidence established by a fair preponderance the affirmative defense of entrapment. (People v McGee, 49 NY2d 48, cert denied sub nom. Waters v New York, 446 US 942.) III. The trial court, in charging the jury, wrongly equated character testimony with nonpredisposition testimony, thus charging effectively that none of the defense evidence was sufficient to create reasonable doubt. IV. The trial court failed, in spite of a request, to give limiting instructions as to the weight and probity of the prosecution’s hearsay predisposition testimony. V. The court did not give the required "moral certainty” charge in connection with such hearsay circumstantial evidence. VI. The trial court failed adequately to clarify for the jury, in response to numerous requests, the entrapment concept. (People v Massamillo, 69 AD2d 790.) VII. The defense was entitled, based on its offer of factual proof, to an Isaacson hearing posttrial. (People v

      Isaacson, 44 NY2d 511; Matter of De Canzio v Kennedy, 67 AD2d 111; People v Pomerantz, 63 AD2d 457, 46 NY2d 240; People v Tyler, 62 AD2d 136; People v Rao, 73 AD2d 88; People v Archer, 68 AD2d 441, 49 NY2d 978; People v Cousart, 58 NY2d 62; People v Vega, 80 AD2d 867; People v Jorgensen, 118 Misc 2d 310; People v Paccione, 99 Misc 2d 1027.) VIII. The defense should have been allowed to call two additional nonpredispositional witnesses, based on the functional unavailability of the two inmates who had made declarations against a penal interest. (People v Brown, 26 NY2d 88; People v Settles, 46 NY2d 154; People v Josan, 92 AD2d 902; People v Thompson, 59 AD2d 996, 47 NY2d 940.)

      Patrick Henry, District Attorney (Patricia A. Murphy of counsel), for respondent.
    I. The trial court properly instructed the jury that "evidence of good character is not of itself standing alone sufficient to raise a reasonable doubt”. (People v Trimarchi, 231 NY 263; People v Miller, 35 NY2d 65; People v Bouton, 50 NY2d 130; Cancemi v People, 16 NY 501; Remsen v People, 43 NY 6; Stover v People, 56 NY 315; People v Brooks, 131 NY 321; People v Sweeney, 133 NY 609; Edgington v United States, 164 US 361.) II. The trial court properly charged the entrapment defense: the jury’s resolution of the issues against appellant should not be disturbed. (People v McGee, 49 NY2d 48, cert denied sub nom. Waters v New York, 446 US 942; People v Fuller, 130 AD2d 840; People v Erskine, 128 AD2d 800; People v Rodriguez, 118 AD2d 878, 67 NY2d 1056; People v Leguillon, 119 AD2d 590, 68 NY2d 758; People v Zaloga, 114 AD2d 871; People v Tucker, 96 AD2d 893; People v Way, 59 NY2d 361; People v Milanes, 91 AD2d 669; People v Cleague, 22 NY2d 363.) III. Appellant advances various objections to the court’s charge for the first time on appeal; thus, any claim of error is unpreserved. Moreover, these contentions are without merit. (People v Thomas, 50 NY2d 467; People v Patterson, 39 NY2d 288; People v Whalen, 59 NY2d 273; People v Hoke, 62 NY2d 1022; People v Wynn, 108 AD2d 768; People v Scott, 108 AD2d 882; People v Joiner, 105 AD2d 805; People v McLaughlin, 104 AD2d 829; People v Nelson, 104 AD2d 1010; People v King, 91 AD2d 1073.) IV. The court’s denial of the defense motion for a posttrial Isaacson hearing was proper. (People v Longwood, 116 AD2d 590; People v Isaacson, 44 NY2d 511; People v Rao, 73 AD2d 88; People v Archer, 68 AD2d 441, 49 NY2d 978; People v Smith, 106 AD2d 670.) V. The court’s denial of the defense application to call two witnesses to testify was proper.
   OPINION OF THE COURT

Per Curiam.

Defendant was charged with attempted criminal possession of stolen property in the first degree, arising out of a police undercover operation targeting him as a "fence” for stolen property. At trial, defendant raised the affirmative defense of entrapment and also introduced evidence of his good character. In its charge to the jury, the court instructed — in compliance with our holding in People v Miller (35 NY2d 65, 67-68)— that defendant’s "evidence of good character shall always be considered and weighed * * * as bearing upon the guilt or innocence of the defendant * * * [b]ut, evidence of good character is not of itself standing alone sufficient to raise a reasonable doubt”. Defendant assigns error to this charge, arguing that we have adopted a contrary formulation — articulated in the more recent case of People v Bouton — that character evidence may "in and of itself give rise to a reasonable doubt of guilt where none would otherwise exist” (People v Bouton, 50 NY2d 130, 139).

The principle has long been that in a criminal prosecution, the accused may introduce evidence as to his own good character to show that it is unlikely that he committed the particular offense charged (see, People v Bouton, 50 NY2d 130, 135, supra; People v McDowell, 9 NY2d 12, 14; People v Conrow, 200 NY 356, 360; People v Van Gaasbeck, 189 NY 408, 413; Cancemi v People, 16 NY 501, 506; see also, Edgington v United States, 164 US 361, 366-367; see generally, Richardson, Evidence § 150, at 120-121 [Prince 10th ed]). It is equally well settled that such evidence is not "in and of itself’ or "standing alone” sufficient to constitute a reasonable doubt as to guilt (People v Trimarchi, 231 NY 263, 266; see generally, Fisch, New York Evidence § 183, at 108 [2d ed]). Character evidence must first be believed by the jury; then, when considered with all the other evidence in the case, it may be sufficient to raise a reasonable doubt (People v Miller, 35 NY2d 65, 67-68, supra; People v Johnson, 6 AD2d 799, affd 5 NY2d 1000; People v Trimarchi, 231 NY 263, 266, supra; see, People v Roach, 215 NY 592, 607-608; see generally, Richardson, Evidence § 150, at 121 [Prince 10th ed]; 1 CJI[NY] 12.05).

Put differently, the jury may not ignore the People’s evidence tending to establish guilt and, having considered only defendant’s evidence of good character, render an acquittal based solely thereon. Rather, the jury must consider character evidence in light of all of the evidence in the case. Where evidence of good character is the only evidence in defendant’s case, it in this sense "stands alone”; however, it may give rise to a reasonable doubt only when in the judgment of the jury it is believed and sufficiently calls into question the credibility of the People’s evidence tending to establish guilt (People v Miller, 35 NY2d 65, 67-68, supra; People v Trimarchi, 231 NY 263, 266, supra). Claims such as that raised by defendant— that the jury should be charged that character evidence "in and of itself’ or "standing alone” may create a reasonable doubt — have been rejected (see, People v Miller, 35 NY2d 65, 66, supra; People v Johnson, 6 AD2d 799, affd 5 NY2d 1000, supra).

The observation in Bouton that "the most impressive measure of the respect the law accords the community’s ability to judge character is that the reputation of an accused * * * may in and of itself give rise to a reasonable doubt of guilt where none would otherwise exist” (People v Bouton, 50 NY2d 130, 139, supra) does not change the established rule that a jury is bound to assess the effect of defendant’s character evidence — if accepted and believed — in light of all the evidence in the case. As we have stated, "[character evidence does not exist in a vacuum, and its value, influence or the weight to be accorded it depends in great part upon the other evidence in the case. If accepted and believed, it becomes a fact to be weighed with the other facts. If the evidence of guilt against a defendant is cumulative and reliable, the influence of contrary evidence of good character is likely to be slight. Under other circumstances, such evidence may be so good, if believed, as to create a reasonable doubt where without it none would exist” (People v Miller, 35 NY2d 65, 69, supra).

With respect to defendant’s contention that the court committed reversible error by confusing its instructions on character evidence with principles applicable to nonpredisposition evidence, the court delivered a supplemental charge on entrapment at defendant’s request, to which defendant registered no further objection. We have reviewed defendant’s remaining contentions and find them to be either unpreserved or without merit.

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

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

Order affirmed.

       The court charged as follows: "I charge you that evidence of good character shall always be considered and weighed by a jury as bearing upon the guilt or innocence of the defendant. But, evidence of good character is not of itself standing alone sufficient to raise a reasonable doubt. First, such evidence must be believed and then when considered with all of the other evidence in the case it might be sufficient to raise a reasonable doubt as to the guilt of the defendant * * * However, after weighing the evidence of the defendant, good character with all of the other evidence in the case, if you believe the defendant to be guilty beyond a reasonable doubt, then you are duty bound to convict him; notwithstanding that, you may believe that his character is good. The rule is that evidence of good character must always be considered not alone but in connection with all of the evidence bearing upon the question of the guilt or innocence of the accused. The jury has no right to separate it from the mass of testimony and say that they believe the accused has a good character, and therefore they’ll disregard all of the evidence of guilt.”


author: Simons, J. Kaye, J.

text:
    The People of the State of New York, Respondent, v Richard Moore, Appellant.
    Argued April 25, 1988;
    decided June 7, 1988

      POINTS OF COUNSEL

      Joel Atlas and Philip L. Weinstein for appellant.
    The submission of a copy of the felony murder counts of the indictment to the jury during deliberations deprived appellant of his due process right to a fair trial. (People v Rhyne, 121 AD2d 954; People v Townsend, 67 NY2d 815; People v Boon, 69 NY2d 585; People v Compton, 119 AD2d 473; People v Vincenty, 68 NY2d 899; People v Fortt, 42 AD2d 859, 35 NY2d 921; People v Moran, 84 AD2d 753; People v Branch, 83 AD2d 855; People v Putnam, 130 AD2d 52; People v Perez, 90 AD2d 468.)

      Paul T. Gentile, District Attorney (Stanley R. Kaplan and Peter D. Coddington of counsel), for respondent.
    I. Appellant was proven guilty of the crimes charged beyond a reasonable doubt by overwhelming evidence. (People v Bay, 67 NY2d 787; People v Benzinger, 36 NY2d 29; People v Bleakley, 69 NY2d 490.) II. After the jury had repeatedly heard the counts of the indictment read to them and had been informed by defense counsel and instructed by the court that an indictment was not evidence, the court properly exercised its discretion to provide the jury with further instruction and information when (1) the jury asked to receive a copy of the felony murder counts of the indictment, (2) the court responded by again reading aloud those counts to the jury, and (3) the jury renewed its request for written copy, the court submitted a photocopy of the counts in order to aid the jury’s deliberation. (People v Iannelli, 69 NY2d 684; People v Middleton, 54 NY2d 42; People v Thomas, 50 NY2d 467; People v Malloy, 55 NY2d 296; People v Gonzalez, 293 NY 259; People v Miller, 6 NY2d 152; People v Gezzo, 307 NY 385; People v Flynn, 290 NY 220; People v Lourido, 70 NY2d 428; People v Almodovar, 62 NY2d 126.)
   OPINION OF THE COURT

Simons, J.

Defendant has been convicted of two counts of murder, second degree, and other crimes committed in the course of killing 80-year-old Elizabeth Dougherty. The victim was found near death in her Bronx apartment, bound and gagged under a pile of curtains and clothing, and removed to a hospital where she subsequently died as a result of asphyxiation due to smothering. The apartment had been ransacked and was in complete disorder; the refrigerator, drawers and cabinets had been opened and their contents strewn about the apartment. Defendant, who insisted that he had never been in the victim’s home, left his fingerprints throughout the apartment— one print was lifted from a canister found on the kitchen floor, a second from a metal cabinet in the living room, and a third from a mass card which had been secreted in a bureau drawer in the victim’s bedroom, but which, after the crime, was found on the bedroom floor. Months later, when informed that he had been arrested for the January 1984 murder of Mrs. Dougherty in an apartment on the Grand Concourse in The Bronx, defendant laughed and said that he had not been on the Grand Concourse in January and had never killed an "old white lady”. When he made this statement, defendant had not been told the age or race of the victim. Based on this evidence, defendant was convicted following a jury trial of two counts of felony murder and burglary, and the Appellate Division affirmed.

Defendant contends that he was denied a fair trial because the Trial Judge permitted the jury to take part of the indictment into the jury room. Confronted with the request of the jury for further assistance during deliberations, and mandated by the statute to provide it to them (see, CPL 310.30; People v Malloy, 55 NY2d 296, 301), the court submitted copies of two counts to them. The error in doing so, if indeed it was error, was harmless beyond a reasonable doubt and does not require reversal of the conviction.

After the jury had started deliberating, it sent a note to the court requesting that it be given a copy of counts two and three of the indictment, the counts charging felony murder. The court had the jury returned to the courtroom and after reading the two counts to them it asked the jurors if the reading sufficed or if they still wanted copies of the indictment. The jurors responded that they wished a copy of the indictment for reference during deliberations. The court prepared photocopies but before giving them to the jury, it again explained the difference between attempted robbery and burglary, the predicate felonies contained in the two counts. It also warned the jury that the copies were given at their request as an aid to deliberation and that the indictment was "not evidence and it is not to be considered as evidence.”

In People v Owens (69 NY2d 585), we held that the court could not, sua sponte, give the jury a portion of its charge in writing to consider in the jury room during deliberations and that the error was not subject to harmless error analysis. In doing so, we relied on CPL 310.30 which expressly prohibits delivering a portion of a statute to the jury without counsel’s consent and found that delivering portions of the charge presented the same dangers. We identified these dangers as follows: "First, the fact that the trial court has selected certain portions of its charge may itself convey the message that these are of particular importance. Second, the very repetition of parts of the charge may serve to emphasize them and subordinate the others. Finally, the written instructions may be reinforced by their physical presence in the jury room, as the oral instructions fade from memory” (id., at 591).

The submission of the counts of the indictment in the matter before us did not entail any of the risks identified in Owens because of the nature of the information and because the court was responding to a request from the jury. Manifestly, the court was not emphasizing counts two or three or conveying a message to the jury that they were of particular importance and other matters less so. The jury had already decided that it needed the court’s further instructions and assistance on the counts charging felony murder. The portion of the indictment setting forth those counts clearly was part of an accusatory instrument, known by the jury to be so, and routinely stated the charges. Moreover, before giving the indictment to the jury, the court carefully explained the applicable law, in language which it had discussed with counsel and which counsel accepted without protest, and carefully explained the nature of an indictment for the jury again as only a charge, lacking any evidentiary value. The contents of the indictment were not new, the prosecution had read the entire indictment during openings, as he was entitled to do (see, People v Reilly, 49 App Div 218, 221, affd 164 NY 600), and defense counsel and the court had previously discussed the charges and admonished the jury that it was only a charge and entitled to no weight. The counts did not purport to be a statement of the law and they were given to the jury at its request with approved instructions concerning its meaning and its limited value. It no more emphasized one side of the case to the exclusion of the other than did the jury’s consideration of exhibits which were properly delivered to the jury room without counsel’s consent (GPL 310.20).

Nor is this case controlled by our decision in People v Sanders (70 NY2d 837) which involved submission of a statute (see also, People v Nimmons, 72 NY2d 830). Although the court was also responding to the jury’s request in Sanders, the danger that a jury may misuse a statute is significantly greater than the danger that it will misuse an indictment. When jurors consider a statute in isolation, apart from related statutes, the legislative history and judicial interpretation, they may very well engage in a collateral debate as to its meaning, thereby taking on the role as Judges of the law as well as Judges of the fact. No such danger exists when an indictment is given to the jury, for the law presumes that the jury will follow the court’s instructions that the indictment is not evidence and is only an accusatory instrument.

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

Kaye, J.

(dissenting). The ink is barely dry on People v Owens (69 NY2d 585), People v Brooks (70 NY2d 896) and People v Sanders (70 NY2d 837), establishing that a trial court’s submission to a deliberating jury — over defendant’s objection — of written materials not expressly authorized by the Criminal Procedure Law and posing a risk of prejudice, is per se reversible error, not subject to harmless error analysis (see also, People v Nimmons, 72 NY2d 830). Now the majority refuses to apply those holdings to this comparable case. For two reasons I respectfully dissent. First, the same or even greater possible prejudice is present here; the same rule should apply. Second, beyond the particular case, the majority muddies our own clear rule that guides future cases.

No point in a trial can be more critical than jury deliberations. Materials taken into the jury room at those crucial moments may well influence the verdict. Recognizing this, both the Legislature and this court have circumscribed what may properly be furnished to a deliberating jury. The Legislature has specified that exhibits in evidence (CPL 310.20 [1]), verdict sheets prepared by the court (CPL 310.20 [2]) and copies of statutes (CPL 310.30) may be submitted, and it has surrounded even these categories with several protections. Exhibits received in evidence enjoy a "triple whammy of protection” (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 310.20); they may be taken into the jury room, in the court’s discretion, only after the parties have had an opportunity to be heard. The text of a statute may be submitted, in the court’s discretion, only "[w]ith the consent of the parties and upon request of the jury for further instruction with respect to a statute”. (CPL 310.30.)

In People v Owens (supra), barely one year old, we concluded that it was per se reversible error for a Trial Judge to give a deliberating jury, over defense objection, written excerpts from the charge (see also, People v Brooks, 70 NY2d 896, 898, supra). Only six months later, following Owens, this court concluded that it was per se reversible error to furnish the jury with a copy of the text of a pertinent statute. "The distribution of the statute without counsel’s consent is prohibited by CPL 310.30 and, like the distribution of written excerpts of a jury charge considered in Owens (supra), the error cannot be deemed harmless” (People v Sanders, 70 NY2d 837, 838, supra). Today, in People v Nimmons (supra) we apply these precedents to a list of the counts of the indictment in statutory language, and again determine that the conviction must be reversed.

Against this clear backdrop of statutory and decisional law, today’s holding is incongruous and incomprehensible. If we followed our own precedents, defendant’s conviction would be reversed and a new trial ordered.

Defendant was convicted of two counts of felony murder, under a statute reading: "A person is guilty of murder in the second degree when: * * * he commits or attempts to commit robbery [or] burglary * * * and, in the course of and in furtherance of such crime or of immediate flight therefrom, he * * * causes the death of a person other than one of the participants”. (Penal Law § 125.25 [3].) Submitting that statutory language to the jury over defendant’s objection would have constituted reversible error, not subject to harmless error analysis. People v Sanders (supra) says exactly that. Submitting that statutory language in a list of counts of the indictment similarly would have constituted reversible error. People v Nimmons (supra) says exactly that.

Yet what is at issue here is simply a more inflammatory, accusatory version of the statutory language, reading as follows:

"second count

"The Grand Jury of the County of the Bronx by this indictment, accuse the defendant of the crime of murder in the second degree committed as follows:

"The defendant, on or about January 17, 1984, in the County of the Bronx, having attempted to commit the crime of robbery, and in the course of and in furtherance of such crime and of immediate flight therefrom, caused the death of Elizabeth Doherty [sic] she being other than a participant, by asphyxiation by smothering.

"third count

"The Grand Jury of the County of the Bronx by this indictment, accuse the defendant of the crime of murder in the second degree committed as follows:

"The defendant, on or about January 17, 1984, in the County of the Bronx, having committed the crime of burglary, and in the course of and in furtherance of such crime and of immediate flight therefrom, caused the death of Elizabeth Doherty [sic] she being other than a participant, by asphyxiation by smothering.”

A side-by-side comparison of the statute and the indictment can only leave one bewildered as to why in Owens, Brooks, Sanders and Nimmons we concluded that there must be reversal, and here we reach a different result.

True, the identical risks cited in Owens are not present: the prejudice is possibly even greater here. As with a statute, there is substantial danger that a deliberating jury will be unduly influenced by the physical presence of the indictment in the jury room, because it emphasizes the prosecution’s theory of the case and ignores relevant factors favoring defendant. But in addition, the indictment — unlike the statute — is accusatory. The indictment places defendant right in the midst of the crime, in most graphic terms: it says that he caused the death of Elizabeth Dougherty "by asphyxiation by smothering.” Moreover, the indictment stands as an accusation of guilt by grand jurors who have reviewed the prosecutor’s evidence and found it sufficient. There is a risk, therefore, that a juror concerned about the credibility of the People’s witnesses or the sufficiency of the evidence will be mollified by the unhesitating assertions of guilt contained in the indictment (see, People v Fortt, 35 NY2d 921, revg on dissent below 42 AD2d 859, 860). This bolstering effect cannot be underestimated; jurors faced with the conflicting assertions of counsel and the frustrating neutrality of the Trial Judge may be hard pressed to ignore these powerfully worded official accusations of guilt, especially when the words are physically before them in the jury room.

Nor is the risk of prejudice diminished, as the majority suggests, because it was the jury that requested the document (see, People v Sanders, supra). To the contrary, the jury’s insistence on having the indictment even after its contents were reread insured that the indictment itself would be a significant factor in the deliberations. Indeed, submission of the indictment here apparently had just that effect. This jury deliberated approximately five hours, and then requested a copy of counts two and three of the indictment. When defendant objected, the court reread those counts to them. The jury persisted in its request for a copy of the indictment, which they ultimately received, and 30 minutes later announced their guilty verdict.

I therefore cannot agree with the majority’s conclusion that the error was harmless or that the proof of guilt was overwhelming. The fingerprint evidence established only defendant’s presence in the victim’s apartment at some unascertainable time. The only other evidence linking him to the crime was the recollection of two police officers that defendant had made a statement allegedly evincing knowledge of details of the crime. The probative value of this evidence, however, was substantially undercut by the concession of one of the officers that in his Grand Jury testimony he had given a different version of defendant’s statement, containing none of the details later highlighted by the prosecution.

There should be a reversal and new trial, because we are led to this result by our own recent decisions, and because it leaves in place a clear, unclouded rule to guide trial courts.

Chief Judge Wachtler and Judges Hancock, Jr., and Bellacos a concur with Judge Simons; Judge Kaye dissents and votes to reverse in a separate opinion in which Judges Alexander and Titone concur.

Order affirmed.

       "second count
      "The Grand Jury of the County of the Bronx by this indictment, accuse the defendant of the crime of murder in the second degree committed as follows:
      "The defendant, on or about January 17, 1984, in the County of the Bronx, having attempted to commit the crime of robbery, and in the course of and in furtherance of such crime and of immediate flight therefrom, caused the death of Elizabeth Doherty [sic] she being other than a participant, by asphyxiation by smothering.
      "third count
      "The Grand Jury of the County of the Bronx by this indictment, accuse the defendant of the crime of murder in the second degree committed as follows:
      "The defendant, on or about January 17, 1984, in the County of the Bronx, having committed the crime of burglary, and in the course of and in furtherance of such crime and of immediate flight therefrom, caused the death of Elizabeth Doherty [sic] she being other than a participant, by asphyxiation by smothering.”