author: Gabrielli, J. Cooke, J. (dissenting).

text:
    In the Matter of Miriam Ward, Appellant, v Ewald B. Nyquist, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued October 12, 1977;
    decided November 17, 1977

      POINTS OF COUNSEL

      Jeffrey G. Plant for appellant.
    I. Appellant’s tenure rights should not have been based on subdivision 3 of section 2510 of the Education Law, which applies to later occurring vacancies, but should have been based on subdivision 2 of section 2510 which applies seniority concepts at the time of the abolition of the position in question. (Matter of Chauvel v Nyquist, 55 AD2d 76; Matter of Weinbrown v Board of Educ., 28 NY2d 474.) II. The decision of the court below is contrary to the precedent-setting decisions of this court in Matter of Lezette and Matter of Lynch. (Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588; Matter of Lezette v Board of Educ., 35 NY2d 272.) III. The tenure statutes manifest a legislative intent to protect teachers, and must be construed to afford maximum protection to the more senior teacher, regardless of certification. (Matter of Boyd v Collins, 11 NY2d 228; Matter of Silver v Board of Educ., 46 AD2d 427; Matter of Amos v United Free School Dist. No. 9, 47 AD2d 711.) IV. Appellant is entitled to back salary from the date of the abolition of her Latin teaching position to the date of her re-employment by respondent board of education. (Matter of Lezette v Board of Educ., 43 AD2d 755, 35 NY2d 272; Matter of Lynch v Nyquist, 41 AD2d 363; Matter of Silver v Board of Educ., 46 AD2d 427.)

      Louis H. J. Welch and Robert D. Stone for Commissioner of Education, respondent.
    I. The decision of the Commissioner of Education is final and conclusive. (People ex rel. Board of Educ. v Finley, 211 NY 51; Matter of Board of Educ. v Allen, 6 NY2d 127; Matter of Vetere v Allen, 15 NY2d 259; Matter of Cochran v Levy, 175 Misc 666; Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137; Matter of Baer v Nyquist, 34 NY2d 291.) II. Respondent board of education complied with the relevant provision of section 2510 of the Education Law. (Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588; Matter of Meliti v Nyquist, 41 NY2d 183.)

      Leonard W. Wagman and Mark A. Meyer for Board of Education, Harrison Central School District No. 1, respondent.
    I. The decision in action No. 1 ordering appellant’s reinstatement while denying her any back pay is res judicata to the claim at bar. (Good Health Dairy Prods. Corp. v Emery, 275 NY 14; Israel v Wood Dolson Co., 1 NY2d 116; Matter of New York State Labor Relations Bd. v Holland Laundry, 294 NY 480, 295 NY 568; Fish v Vanderlip, 218 NY 29; Stoner v Culligan, Inc., 32 AD2d 170; Matter of Haas, 33 AD2d 1, 26 NY2d 646, 842; Eissing Chem. Co. v People’s Nat. Bank of Brooklyn, 205 App Div 89, 237 NY 532; Matter of Springs

      Cotton Mills [Buster Boy Suit Co.], 275 App Div 196, 300 NY 586; Curtis v New York World-Telegram Corp., 282 App Div 183; Bird v Meadow Gold Prods. Corp., 60 Misc 2d 212.) II. Appellant was only entitled to preferential reinstatement after she obtained requisite certification. (Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588; Matter of Silver v Board of Educ., 46 AD2d 427; Matter of Baer v Nyquist, 34 NY2d 291; Matter of Mann v Nyquist, 71 Misc 2d 435; Union Free School Dist. No. 14 v Village of Hewlett Bay Park, 279 App Div 618, 746; Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137; Garber v Central School Dist. No. 1, 251 App Div 214.) III. Appellant has not met the high standard of proof necessary to reverse a decision by the Commissioner of Education. (Matter of Board of Educ. v Allen, 6 NY2d 127; Cutcher v Nyquist, 43 AD2d 58, 33 NY2d 521; Matter of Board of Educ. v Allen, 14 AD2d 429, 12 NY2d 980; Matter of Lubell v Nyquist, 31 AD2d 569, 23 NY2d 645.)
   OPINION OF THE COURT

Gabrielli, J.

In this article 78 proceeding the petitioner challenges a determination of the Commissioner of Education upholding a decision of the respondent board of education refusing to place the petitioner on the faculty of the Harrison Central School District. This case involves an interpretation of section 2510 of the Education Law dealing with the abolition of teaching positions and the concomitant rights of tenured teachers affected by the abolitions.

The petitioner, Miriam Ward, was a tenured public school teacher employed by the Board of Education of the Harrison Central School District as a Latin teacher for the school year 1970-1971. Although her academic tenure area was the secondary level she was certified only in Latin at this time. In May, 1971 the board notified petitioner that one Latin teaching position would be abolished and her services in that capacity were no longer required since she had less seniority than the other Latin teacher. Thereafter petitioner applied for appointment to an English position, seeking preferential treatment since her tenure area included that subject, but her application was denied because she lacked certification as an English teacher. The board eventually hired several new English teachers for the 1971-1972 school year.

Pursuant to the provisions of section 310 of the Education Law, petitioner appealed to the Commissioner of Education, alleging that she has general secondary tenure and, therefore, has a right as a matter of law to be appointed to a vacant position in secondary English. Noting the lack of certification in English, the commissioner ruled that: "Petitioner’s tenure area is secondary; however, that does not entitle petitioner to appointment to a position for which she is not legally qualified by having obtained certification.” Petitioner then instituted the present article 78 proceeding challenging the commissioner’s determination on the ground, inter alia, that it was contrary to the mandate of section 2510 of the Education Law dealing with the abolition of the positions of tenured teachers and their subsequent rights to re-employment. Supreme Court sustained the determination of the commissioner and the Appellate Division affirmed.

Initially, it should be noted that determinations by the commissioner made pursuant to section 310 of the Education Law had previously been subject to a limited standard of review, being overturned only if "purely arbitrary” (see Matter of Baer v Nyquist, 34 NY2d 291, 298). In 1976, however, the statute was amended to conform with the usual standard of review, i.e., whether the decision was arbitrary and capricious (L 1976, ch 857). But under neither standard may the commissioner’s action contravene specific statutory provisions which petitioner claims occurred here. We find, however, that the commissioner’s determination is consistent with the statutory provisions and must be sustained. Section 2510 of the Education Law provides, in pertinent part:

"2. Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.
"3. If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he has filled. The persons on such preferred list shall be reinstated or appointed to such vacancies in such corresponding or similar positions in the order of their length of service in the system at any time within four years from the date of abolition or consolidation of such office or position.”

As noted, subdivision 2 provides that when a position is abolished the teacher with the least seniority "within the tenure of the position abolished shall be discontinued”. This subdivision establishes a seniority method for determining which teacher may be dismissed as a result of the abolition of a position (Matter of Lezette v Board of Educ., 35 NY2d 272). Subdivision 3, on the other hand, deals with the problem of reemployment rights after dismissal under subdivision 2 has been effectuated. Of course the statute contemplates that prior to any re-employment consideration, dismissal will have been made in compliance with subdivision 2. Thus, it is understandable that subdivision 3 embodies a more limited re-employment provision in that preferential re-employment is restricted to vacancies in "corresponding or similar positions”. The dismissal rights of subdivision 2 refer specifically to tenure area while the re-employment rights of subdivision 3 refer only to similar positions (see Matter of Chauvel v Nyquist, 43 NY2d 48, 52, decided herewith).

In Matter of Lynch v Nyquist (41 AD2d 363, affd 34 NY2d 588) the court, in dealing with a subdivision 2 dismissal, held that the statute mandated the release of a teacher based strictly on seniority in the tenure area and that lack of certification may not be used to circumvent this procedure. The rationale for insisting on strict compliance was to assure that statutory procedures for discontinuance of tenured teachers be followed. In that case, it was stated that "Certification requirements * * * may not be employed to erode the protections afforded tenured teachers, since the tenure statutes provide the exclusive method for dismissal for those teachers * * * The only two courses of action open to [the board] were to discontinue the services of the teacher having the least seniority within the tenure of the position abolished, pursuant to subdivision 2 of section 2510 of the Education Law, or to discontinue petitioner’s services for legal incompetence due to lack of certification by following the procedures mandated by the tenure statutes” (Matter of Lynch v Nyquist, supra, p 365, affd 34 NY2d 588; see, also, Matter of Steele v Board of Educ., 53 AD2d 674, affd 42 NY2d 840; Matter of Silver v Board of Educ., 46 AD2d 427).

These somewhat cumbersome procedures are necessary to assure that tenured teachers are not dismissed by virtue of abolition without the proper procedures. However, the law recognizes the practical reality that the necessary abolition of positions may result in the dismissal of tenured teachers. If the dismissal is proper under the law, then subdivision 3 provides additional rights, unrelated to the dismissal itself, involving re-employment. These rights do not flow from the protections against arbitrary dismissal (cf. Matter of Silver v Board of Educ., supra, p 430), but are independent benefits. The statute provides that re-employment rights attach only to "corresponding or similar positions”. A certified Latin teacher cannot successfully assert entitlement to re-employment in an English position for which she lacks the legal qualification because the assertion that the new position is similar to the old one is belied by the absence of legal qualification. Certification is a statutory requirement of no small significance (see Matter of Meliti v Nyquist, 41 NY2d 183). When seeking reemployment rights the threshold question must be one of certification to teach in the position sought. Absent such certification, re-employment rights cannot attach.

Finally, it should be noted that the above Reasoning is consistent with the interpretation applied by the commissioner and the construction given statutes by the agency responsible for their administration should not be lightly set aside (Matter of Lezette v Board of Educ., 35 NY2d 272, 281, supra).

Nothing in the record indicates that at the time petitioner was dismissed there were teachers with less seniority within her tenure area. More importantly, the petition before the commissioner does not allege an improper dismissal but challenges the board’s alleged lack of preferential re-employment. Since no challenge to her dismissal under subdivision 2 is presented in the papers, we do not address any issues under that provision, if such there be. The only issue is whether her rights to re-employment under subdivision 3 have been violated. When she sought re-employment as an English teacher, petitioner was not certified in English. Thus for the reasons discussed above, her claim must fail.

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

Cooke, J. (dissenting).

I dissent for the reasons stated by Mr. Justice Greenblott in his dissent in the Appellate Division (55 AD2d 751, 752) and in my dissent in Matter of Chauvel v Nyquist (43 NY2d 48, decided herewith), with the following additional comments (see, also, Matter of Lynch v Nyquist, 41 AD2d 363, affd 34 NY2d 588).

The facts of this case are quite similar to those in Matter of Steele v Board of Educ. (53 AD2d 674, affd 42 NY2d 840). There, as here, the petitioner was a teacher certified to teach one foreign language and had the least seniority in that subject when the board sought to abolish her position due to decreased enrollment in language courses. The principal difference is that there petitioner was seeking to avoid dismissal whereas here petitioner was seeking reinstatement.

In Steele (supra) it was held that a board of education may be required, where possible, to rearrange a teaching schedule to find a position in the area of certification of a tenured teacher who might otherwise be dismissed. There is no justification for not similarly adjusting schedules to allow a tenured teacher such as petitioner to be reinstated to a vacancy over one with less seniority. The fact that petitioner sought reinstatement to a position for which she was not certified rather than seeking a rearrangement of the teaching schedule, or that she did not seek to assert any rights she may have had under subdivision 2 of section 2510 of the Education Law, should not be of significance to her request for relief. "The tenure statutes are intended to protect the teacher and not become a trap to those not guileful enough to avoid it” (Matter of Baer v Nyquist, 34 NY2d 291, 299).

Accordingly, in this matter there should be a determination of whether it was possible to adjust the teaching schedule to allow petitioner to be reinstated to teach in an area in which she was certified.

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

Order affirmed.


source: Caselaw Access Project

author: Jones, J. Cooke, J. (dissenting).

license: Public Domain

text:
    In the Matter of the Estate of Mario Lalli, Deceased. Robert M. Lalli, Appellant; Rosamond Lalli, as Administratrix of the Estate of Mario Lalli, Deceased, Respondent.
    Argued October 13, 1977;
    decided November 17, 1977

      POINTS OF COUNSEL

      Morris R. Henkin and Leonard M. Henkin for appellant.
    Limitations imposed by EPTL 4-1.2 on right to inherit of illegitimates as applied to petitioner-appellant herein, as soon acknowledged in writing, are unconstitutional in light of Trimble v Gordon. (Trimble v Gordon, 430 US 762; Dunn v Blumstein, 405 US 330; Matter of Lalli, 38 NY2d 77.)

      Leonard A. Weiss for respondent.
    The alternative provided by EPTL 4-1.2 (subd [a], par [2]) which the State of Illinois does not—vis., the "order of filiation”, suffices to protect the New York statute from the "equal protection” challenge pursuant to Trimble v Gordon. (Trimble v Gordon, 430 US 762; Weber v Aetna Cas. & Sur. Co., 406 US 164; Labine v Vincent, 401 US 532; Matter of Flemm, 85 Misc 2d 855.)

      Louis J. Lefkowitz, Attorney-General (Irwin M. Strum, Samuel A. Hirshowitz and Suzanne M. McGrattan of counsel), in his statutory capacity under section 71 of the Executive Law. The determination of the Supreme Court of the United States in Trimble v Gordon (430 US 762 [1977]) does not require this court to declare EPTL 4-1.2 to be unconstitutional.

      Kalman Finkel, John E. Kirklin, Susan B. Lindenauer, Janet M. Calvo and Jane Greengold Stevens for The Legal Aid Society and another, amici curiae.

    In a proceeding to establish the right of an illegitimate child to inherit from his/her father by intestate succession, the State of New York cannot constitutionally bar consideration of any form of proof of paternity which is not imprecise and unduly burdensome. (Trimble v Gordon, 430 US 762; Matter of Anonymous v Anonymous, 25 AD2d 350, 19 NY2d 840, 20 NY2d 742; "Brown" v "White”, 29 AD2d 1054; Matter of Green v Blue, 28 AD2d 628; Matter of Jay v Andrew "Y” 48 AD2d 716; Matter of Dolores D. v Mario N. D., 69 Misc 2d 689; "White” v "Grey”, 26 AD2d 972; Matter of Kiamos v Chiladakis, 25 AD2d 647; People v Guley, 281 App Div 927.)
   OPINION OF THE COURT

Jones, J.

This case is now before us on remand from the Supreme Court of the United States for further consideration in the light of Trimble v Gordon (430 US 762). We adhere to our previous decision (38 NY2d 77).

At the outset we observe that the standard to be applied in our review, while "less than strictest scrutiny”, is nonetheless "not a toothless one” (perhaps in the sense that it would be a "toothless” standard if it could be satisfied by a mere finding of some remote rational relationship between the statute and a legitimate State purpose) (430 US 762, 767).

We find the Illinois statute which was before the court in Trimble significantly and determinatively different from the New York statute. Under the former the right of an illegitimate child to inherit from his father depended not only on proof, by way of the father’s acknowledgment, of the fact of paternity, but on proof as well that the parents had intermarried (111 Rev Stat, ch 3, § 12 [1961]; cf. Ill Rev Stat, ch 3, § 2-2 [1976-1977 Supp]). By contrast, under our New York statute the right to inherit depends only on proof that a court of competent jurisdiction has made an order of filiation declaring paternity during the lifetime of the father. (EPTL 4-1.2, subd [a], par [2]).

In our analysis the Illinois statute focuses on a requirement that the family relationship be "legitimatized” by the subsequent marriage of the parents. Thus, there was a manifested and impermissible hostility to illegitimacy as such, unrelieved even if there were no doubt whatsoever as to paternity. The Supreme Court held unacceptable such a statutory provision which penalized children born of an "illegitimate relationship” between their parents—concluding that the sins of the parents are not to be visited upon their children. There is nothing similar in our statute; it is concerned only with proof of paternity and the establishment of a blood relationship between the father and the child.

In another aspect we note that even with respect to the issue of paternity there is a different emphasis in the two statutes. Illinois requires in a conclusory form only that the child be "acknowledged by the father as the father’s child”. New York, on the other hand, is evidently concerned not only with the fact of paternity but with the form and manner, and thus the availability, of its proof, i.e., by order of filiation.

The Supreme Court explicitly recognized the inherently more difficult problems of proof of paternity than of maternity and acknowledged that the States have a legitimate interest in making provision for the orderly settlement of estates and the dependability of titles to property passing under intestacy laws (430 US, at p 771). "The orderly disposition of property at death requires an appropriate legal framework, the structuring of which is a matter particularly within the competence of the individual States. In exercising this responsibility, a State necessarily must enact laws governing both the procedure and substance of intestate succession. Absent infringement of a constitutional right, the federal courts have no role here, and, even when constitutional violations are alleged, those courts should accord substantial deference to a State’s statutory scheme of inheritance.”

The issue here appears to turn, then, on whether a State may constitutionally require as proof of paternity a judicial determination made during the lifetime of the father. We find nothing in Trimble which forecloses this possibility; specifically we do not, as appellant would have us, read footnote 14 at page 772 as forbidding such a requirement. The preference for judicial determinations with respect to title to real property has a long and respected history and provides an available record. In effect our statute requires that the determination of paternity be made in the formality of a judicial proceeding in consequence of which there will follow an order of filiation and a permanent, accessible record. If a father is prepared to execute a formal acknowledgment of paternity (a prerequisite which appears clearly to be acceptable to the Supreme Court), obtaining an order of filiation will not be burdensome. Nor do we perceive the seeds of constitutional infirmity in the requirement that the judicial determination be made within the lifetime of the father. As we noted before, the father "may be expected to have greater personal knowledge than anyone else, save possibly the mother, of the fact or likelihood that he was indeed the natural father. His availability should be a substantial factor contributing to the reliability of the fact-finding process.” (38 NY2d, at p 82.) Indeed a formal acknowledgment of paternity, apparently found in Trimble to be an acceptable requirement, obviously entails personal participation by the father during his lifetime.

Finally, we would merely note, if Trimble is to be read as inviting exploration of the intent of the Legislature in adopting the particular statute, that research of counsel as well as our own has disclosed no relevant materials with respect to the enactment of EPTL 4-1.2 (subd [a], par [2]). We could speculate as to the details of legislative intentions, and so could others. To us it is clear, even in the absence of specific legislative materials, that this statute serves a legitimate State purpose—in the language of Trimble, to make provision for "the orderly settlement of estates and the dependability of titles to property passing under intestacy laws” (430 US 762, 771, supra). We know of nothing, and there is nothing in the record, to suggest that our statute was intended as a moral, ethical or social disparagement of illegitimacy or was the product of proponents whose objective, even in small part, was to discourage illegitimacy, to mold human conduct or to set societal norms.

For the reasons stated we conclude that our statute meets the constitutional guidelines articulated in Trimble. Accordingly, the decree of Surrogate’s Court, Westchester County, should be affirmed, with costs.

Cooke, J. (dissenting).

Admittedly, the Illinois statute recently declared unconstitutional by the Supreme Court of the United States is significantly different from the New York statute (EPTL 4-1.2, subd [a], par [2]). Nevertheless, it is respectfully submitted that our statute is likewise unconstitutional in light of Trimble v Gordon (430 US 762).

In Trimble, the Supreme Court was careful to delineate the boundaries of its inquiry, thus explaining that (p 771) "The orderly disposition of property at death requires an appropriate legal framework, the structuring of which is a matter particularly within the competence of the individual States. In exercising this responsibility, a State necessarily must enact laws governing both the procedure and substance of intestate succession. Absent infringement of a constitutional right, the federal courts have no role here, and, even when constitutional violations are alleged, those courts should accord substantial deference to a State’s statutory scheme of inheritance.” The court also recognized that (p 770) "[t]he more serious problems of proving paternity might justify a more demanding standard for illegitimate children claiming under their fathers’ estates than that required either for illegitimate children claiming under their mothers’ estates or for legitimate children generally”. Nevertheless, considering the Illinois statute, the court reasoned (pp 770-771): "We think, however, that the Illinois Supreme Court gave inadequate consideration to the relation between § 12 and the State’s proper objective of assuring accuracy and efficiency in the disposition of property at death. The court failed to consider the possibility of a middle ground between the extremes of complete exclusion and case-by-case determination of paternity. For at least some significant categories of illegitimate children of intestate men, inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws. Because it excludes those categories of illegitimate children unnecessarily, § 12 is constitutionally flawed.” Furthermore, concerning the interests of the States in the accurate and efficient disposition of property, the court commented (p 772, n 14): "Evidence of paternity may take a variety of forms, some creating more significant problems of inaccuracy and inefficiency than others. The States, of course, are free to recognize these differences in fashioning their requirements of proof. Our holding today goes only to those forms of proof which do not compromise the States’ interests. This clearly would be the case, for example, where there is a prior adjudication or formal acknowledgment of paternity. Thus, we would have a different case if the state statute were carefully tailored to eliminate imprecise and unduly burdensome methods of establishing paternity.”

Applying the equal protection analysis employed by the Supreme Court in Trimble necessitates consideration of the relation of our statute to our State’s "proper objective of assuring accuracy and efficiency in the disposition of property at death” (430 US, at p 770). Of course, our statute is not mindless nor totally irrational and a concern for a solid proof of paternity is a legitimate State purpose. But if the court is now required to put teeth into its scrutiny, we are obliged to go beyond the purpose of the statute to a consideration of the rationality of the burden it places on the State’s illegitimate children.

A judicial proceeding may promote accuracy, but the difficulties in otherwise establishing paternity do not justify the narrow confines and procedure mandated by our statute. The requirement of an order of filiation made during the lifetime of the father will, ipso facto, exclude a substantial category of illegitimate children from inheritance. If this exclusion resulted from a lack of proof, it might be justifiable. But in reality not obtaining an order of filiation will often result simply from the fact that the putative father is supporting and acknowledging the children as his own. Or, it might well be and often is the product of carelessness or ignorance on the part of those who might institute a proceeding within the statutory limitation, for neither of which should a child suffer. Indeed, ordinarily the order will be obtained only where the natural father is not providing support. The children who are voluntarily supported, no matter how compelling the proof, will be absolutely barred if such an order is not obtained.

The question of paternity is a delicate one. Even though the putative father may petition for the order (see Family Ct Act, § 522), this is a burdensome procedure. To require an order of filiation during the lifetime of the father is to demand, at least in the eyes of laymen, a form of adversary proceeding. The instant matter is illustrative. The natural father was supporting petitioners, and had made an acknowledgment of his parenthood as to one of them. In this instance the only purpose served by an order of filiation would be to satisfy a requirement which may have provoked disharmony and which goes beyond what is necessary in these circumstances. To be sure, the State may desire this method of proof, but this is an extreme requirement in view of the consequences. The State may impose a heavy burden, but the statutory procedure required has only a tenuous relation to the quantum of proof demanded. Viewed in proper perspective, it is apparent that the statute places an undue, if not unyielding, burden on those concerned, and thus in light of Trimble it must be concluded that the statute leaves the "middle ground” of what a State may legitimately require and settles on the side of complete exclusion.

In Trimble, the Supreme Court reasoned that a paternity order obtained for purposes of requiring the father to provide support should be sufficient to establish paternity for purposes of allowing an illegitimate child to inherit from a father who dies intestate (see 430 US, at p 772). However, the court did not suggest that this is the only method for making this determination. Our statute considers no alternatives and imposes a sine qua non requirement that an order of filiation be obtained during the lifetime of the father (EPTL 4-1.2, subd [a], par [2]). For this reason, in light of Trimble, our statute fails to pass constitutional muster.

Accordingly, if paternity is established, the petition for an accounting should be granted.

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

Upon reargument: Prior determination of this court affirming the decree of the Surrogate’s Court adhered to, with costs.

      . As we noted when this case was initially before us, inasmuch as we uphold that provision of the statute which forecloses this appellant’s claim to status as a distributee because no order of filiation was made during the lifetime of his father, we do not reach or consider the challenge to the separate clause of our statute which requires that the paternity proceeding have been instituted "during the pregnancy of the mother or within two years from the birth of the child” (EPTL 4-1.2, subd [a], par [2]; 38 NY2d, at p 80, n).

      . We observe that this appears to have been the case in Trimble itself. A paternity order had been entered during the lifetime of the father finding Gordon to be the father of the child, Deta Mona (430 US, at p 764). On the facts there would have been no question but that Deta Mona would have been entitled to inherit from her father under the New York statute.

       This pronouncement by the Supreme Court warrants this observation. This court does not "reach or consider the challenge to the separate clause of our statute which requires that the paternity proceeding have been instituted 'during the pregnancy of the mother or within two years from the birth of the child’ ” because in this matter no order of filiation was made during the lifetime of the father (see p 68, n 1). Nevertheless, it is difficult to ignore the fact that under our statutory scheme a public welfare official may institute a proceeding within 10 years of the birth of the child (Family Ct Act, § 517, subd [b]) for purposes of requiring the father to provide support, and yet the order of filiation emanating from such proceeding would not allow the child to inherit from his or her father unless said proceeding was instituted within two years of the birth of the child (EPTL 4-1.2, subd [a], par [2]; see Matter of Flemm, 85 Misc 2d 855, 862).


author: Chief Judge Breitel.

text:
    The People of the State of New York, Respondent, v Ernest Abbamonte, Appellant. The People of the State of New York, Respondent, v George Coumoutsos, Appellant. The People of the State of New York, Respondent, v John Campopiano, Appellant. In the Matter of Alexander Lisznyia, Appellant, v Louis B. Scheinman, as County Court Judge of the County of Sullivan, et al., Respondents.
    Argued October 5, 1977;
    decided November 17, 1977

      POINTS OF COUNSEL

      John L. Pollok for appellants in the first and second above-entitled actions.
    I. The prosecution of defendants was barred by CPL 40.20. (Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560; Matter of Grillo v Justices of Supreme Ct. of State of N. Y, 43 AD2d 4, 34 NY2d 990; Matter of Brighenti v Justices of N. Y. Supreme Ct. of Richmond County, 41 AD2d 209; Pinkerton v United States, 328 US 640; People v Spitzer, 148 Misc 97; United States v Sisea, 503 F2d 1337; United States v Tramunti, 513 F2d 1087; United States v Miley, 513 F2d 1191; People v Lo Cicero, 14 NY2d 374.) II. Previous consideration by this court in the instant case does not bar the relief requested herein. (People v Blake, 35 NY2d 331; People ex rel. Liss v Superintendent of Women’s Prison, 282 NY 115; United States v Fernandez, 506 F2d 1200; United States v Furey, 514 F2d 1098; Southern Ry. Co. v Clift, 260 US 316; Messinger v Anderson, 225 US 436.) III. The consecutive sentences imposed on defendants were inherently unfair; a violation of section 70.25 of the Penal Law and contrary to the Eighth and Fourteenth Amendments to the Constitution. (People ex rel. Maurer v Jackson, 2 NY2d 259; People v Mancuso, 22 NY2d 679; People v Birmingham, 16 NY2d 984.)

      Robert M. Morgenthau, District Attorney (Brian Rosner and Peter L. Zimroth of counsel), for respondent in the first, second and third above-entitled actions.
    I. The State prosecutions of appellants were not barred by their previous convictions in Federal court. (Matter of Abbamonte v Justices of N. Y. Supreme Ct. of N. Y. County, 42 AD2d 888, 33 NY2d 737; Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 43 AD2d 414, 37 NY2d 560; People v Lo Cicero, 14 NY2d 374; Matter of Grillo v Justices of Supreme Ct. of State of N. Y, 43 AD2d 4, 34 NY2d 990; United States v Zanfardino, 496 F2d 887, 419 US 830; Matter of Brighenti v Justices of N. Y. Supreme Ct. of Richmond County, 41 AD2d 209.) II. Issues regarding the sentencing change provided by section 70.25 (subd 4) of the Penal Law, which permits a New York State sentence to run concurrently with a Federal sentence, are not properly before this court. In any event, changes in the law are not available to Abbamonte and Coumoutsos, who were sentenced 16 months prior to the statutory change. (People v Belcher, 299 NY 321; People v Oliver, 1 NY2d 152; People ex rel. Guariglia v Foster, 275 App Div 893, 301 NY 515; People ex rel. Paster v Palmer, 274 App Div 856; People v Pepples, 32 AD2d 1041, 27 NY2d 785; People v Trumpler, 57 AD2d 815; People v Mosley, 55 AD2d 891; People v Heath, 51 AD2d 750; People v Drayton, 39 NY2d 580.)

      George L. Santangelo for appellant in the third above-entitled action.
    Appellant’s State indictment, based upon the same transaction which formed the predicate for his Federal conviction, should be dismissed. (Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560; Matter of Grillo v Justices of Supreme Ct. of State of N. Y, 43 AD2d 4; Baugh v United States, 27 F2d 257, 278 US 639; Ashe v Swenson, 397 US 436.)

      Joel M. Proyect for appellant in the fourth above-entitled action.
    I. The failure to allege and prove actual possession in Federal court should not remove the protection of CPL 40.20 as interpreted by this court in Abraham and Grillo. (Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560; Matter of Grillo v Justices of Supreme Ct. of State of N. Y, 43 AD2d 4, 34 NY2d 990; Ashe v Swenson, 397 US 436.) II. Defendant cannot be convicted of conspiracy and the object crime. (People v Tavormina, 257 NY 84; People v Spitzer, 148 Misc 97.)

      Emanuel Gellman, District Attorney (Stephen F. Lungen of counsel), for Louis B. Scheinman, respondent in fourth above-entitled action.
    I. Writ of prohibition is not the appropriate remedy in this case. (Matter of Dondi v Jones, 40 NY2d 8.) II. Petitioner’s plea of guilty in Federal court does not preclude a Sullivan County prosecution. (Matter of Grillo v Justices of Supreme Ct. of State of N. Y., 43 AD2d 4, 34 NY2d 990; Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560; People v Glubo, 5 AD2d 527, 5 NY2d 461; People v Tavormina, 257 NY 84; People v Johnson, 18 AD2d 1017; People v Epton, 19 NY2d 496; People v Potwora, 44 AD2d 207; United States v Welebir, 498 F2d 346.) III. Dismissal of the Sullivan County indictment will circumvent New York’s public policy.
   OPINION OF THE COURT

Chief Judge Breitel.

Four appellants, each previously convicted in Federal court for conspiracy to violate Federal drug laws, challenge, in separate appeals, their subsequent State prosecution for substantive drug offenses allegedly committed during the period of the conspiracy. In all four cases the Appellate Division rejected the challenge.

There is one common issue: whether prosecution of a substantive offense that could have been alleged and proved in support of a prior prosecution for conspiracy violates the CPL 40.20 (subd 2) prohibition against separate prosecution of offenses arising out of the same "criminal transaction”.

Appellants’ prosecution is barred by New York’s statute. In Matter of Abraham v Justices of N. F. Supreme Ct. of Bronx County (37 NY2d 560, 565-567), the statute was applied to bar a State prosecution for possession of dangerous drugs, the identical possession having been alleged and proved as an overt act in a prior Federal conspiracy prosecution. So, too, where the substantive drug offense was not, but could have been, alleged and proved in the prior Federal conspiracy prosecution, subsequent State prosecution offends the statutory mandate. The Abraham rationale is ignored by distinctions dependent upon which overt acts, if any, are specified in the Federal conspiracy indictment or whether a plea of guilty, as opposed to a trial, disposed of the Federal conspiracy charge. Nor do such distinctions comport with logic or the present legislative notion of fair play.

Consequently, in each of the four cases there should be a reversal, the indictments in the three criminal actions should be dismissed, and prosecution of the remaining counts in the indictment to which the proceeding under CPLR article 78 is addressed should be prohibited.

Abbamonte, Coumoutsos, Campopiano

In April, 1973, as a result of a joint major Federal-State narcotics investigation, an indictment was filed against defendants Abbamonte, Coumoutsos, and Campopiano, along with 10 other large-scale heroin merchants, for conspiracy to violate Federal drug laws (see US Code, tit 21, § 846). To support the conspiracy count, covering a period from May, 1971 until the filing of the indictment, 10 particular incidents, including meetings and drug deliveries, were specified as overt acts. A number of substantive drug offenses were also charged.

The instant appeals arise out of a separate concurrent State prosecution in which the three defendants were charged with sale and possession of dangerous drugs. The indictment states that on each of January 8, 12, and 22, 1973, Abbamonte, Coumoutsos, and Campopiano possessed and sold over 16 ounces of heroin. These sales had neither been specified as overt acts of the Federal conspiracy nor had they been the subject of the substantive counts in that indictment.

The Federal charges were disposed of first. Abbamonte and Coumoutsos pleaded guilty, among other counts, to conspiracy. Campopiano, on the other hand, went to trial and was found guilty on all counts charged. Evidence at that trial, although not mentioned in the indictment, included testimony concerning the three January drug sales that are the subject of the State prosecution. All three defendants received substantial Federal sentences.

Relying on the double jeopardy provisions of CPL 40.20, Abbamonte, Coumoutsos, and Campopiano then moved to dismiss the State indictments. Following denial of their motions, each pleaded guilty in State court to selling a dangerous drug in the second degree (Penal Law, former § 220.40). The instant appeals are from the orders of the Appellate Division affirming the convictions.

Lisznyia

Petitioner Lisznyia was also investigated by a joint Federal-State narcotics team. He was first charged by the Federal Government with conspiring, between January 1 and November 18, 1976, to manufacture, possess, and distribute methamphetamine hydrochloride (see US Code, tit 21, § 846). No overt acts were specified in furtherance of the conspiracy.

The genesis of his appeal is a concurrent three-count State indictment. In the State prosecution, Lisznyia was charged with (1) possessing, on November 18, 1976, two ounces of methamphetamine; (2) conspiring with others, between June and November, 1976, to manufacture, possess, and sell methamphetamine; and (3) on November 18, 1976, criminally using drug paraphernalia.

Lisznyia pleaded guilty to the Féderal conspiracy count and was sentenced to an indeterminate term of three years. Before pleading, however, he had obtained extensive disclosure from the Federal prosecutor. The disclosure detailed, principally, the search for and ultimate seizure of, on November 18, 1976, methamphetamines belonging to Lisznyia and his coconspirators.

After pleading guilty to the Federal conspiracy charge, Lisznyia applied to the Appellate Division under CPLR article 78 for judgment prohibiting the State prosecution. Like appellants Abbamonte, Coumoutsos, and Campopiano, he too relies on CPL 40.20. The petition was granted with respect to the conspiracy count, but otherwise dismissed, and Lisznyia appeals.

* * *

At the outset it should be noted that no Federal constitutional issue is involved. Under the "dual sovereignties” doctrine, successive.State and Federal prosecutions based on the same transaction or conduct do not offend the double joepardy prohibition (see Bartkus v Illinois, 359 US 121, 136-138, petition for reh den 360 US 907; Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560, 564-565, supra). The challenges raised turn, instead, on the application of CPL 40.20.

Under CPL 40.20, not only is the "dual sovereignties” doctrine ignored, but double jeopardy protection is extended, generally, to offenses arising out of a common event. Unless one of the enumerated exceptions is made out, "[a] person may not be separately prosecuted for two offenses based upon the same act or criminal transaction” (CPL 40.20, subd 2). Restated, absent the statutory exceptions, no matter the number of statutory offenses technically violated, or the number of jurisdictions involved, an accused is not to suffer repeated prosecution for the same general conduct (see Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560, 565, supra; Denzer, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 40.20, pp 105-107).

Hence, the initial inquiry is whether a later prosecution of a defendant and a prior prosecution are based upon "the same act or criminal transaction”. CPL 40.10 (subd 2) defines "criminal transaction” as "conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture.”

A determination that only one criminal transaction is at issue, however, does not automatically bar a second prosecution. Six exceptions qualify the general proscription (see CPL 40.20, subd 2, pars [a]-[f]). No contention is made that any but the first is relevant to these appeals (as to the pars [b] and [c] exceptions see Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560, 567, supra). Under the paragraph (a) exception, separate prosecutions are permissible where "[t]he offenses as defined have substantially different elements and the acts establishing one offense are in the main clearly distinguishable from those establishing the other.”

These CPL provisions were recently considered in Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County (37 NY2d 560, 565-567, supra). There, under similar circumstances, petitioners successfully raised their prior Federal drug conspiracy prosecution to prohibit a later State prosecution for drug possession. (See, also, Matter of Grillo v Justices of Supreme Ct. of State of N. Y, 34 NY2d 990, affg 43 AD2d 4.)

The court in Abraham first rejected the argument that the two offenses, conspiracy and possession, did not arise out of a single "criminal transaction” (p 566). Tracking the statutory definition of "criminal transaction”, the court reasoned that the conduct constituting the possessory crime and the conspiracy was "so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” (id.).

The People in Abraham then sought to invoke the first exception to the statutory bar, namely, that the elements of the two offenses are "substantially different” and the acts constituting each are "in the main clearly distinguishable” (see CPL 40.20, subd 2, par [a]). The court rejected that argument as well. It looked both to the Federal indictment, which set forth 18 overt acts alleged to have been committed in furtherance of the conspiracy, including the possession at issue in the State prosecution, and to the evidence adduced at the conspiracy trial. The "same possession of the same drugs”, the court reasoned, "was among the acts charged and proved and for which a conviction was had” (37 NY2d, p 567).

At the heart of the four instant appeals, therefore, is whether the Abraham case or its rationale is distinguishable.

With respect to Abbamonte, Coumoutsos, and Campopiano, the People rely on the absence from the Federal indictment of the sales for which the State is prosecuting defendants. Whether the sales and the conspiracy arise out of a single "criminal transaction”, it is urged, depends upon the acts alleged in furtherance of the Federal conspiracy charge.

In Abraham, as noted, the possession crime charged by the State had been alleged in the indictment as an overt act in furtherance of the Federal conspiracy charge. It had also been proven at the Federal trial. (See 37 NY2d, pp 563-564.) But to hinge the statutory double jeopardy prohibition on a procedural or pleading detail, manipulatable at the option of the prosecutor, would be unsound. Concededly, there is no requirement, as there is with respect to a State conspiracy indictment, that overt acts be specified in a Federal conspiracy indictment (see Penal Law, § 105.20). More important, even if overt acts are listed in the Federal indictment, the State prosecutor could rely on other overt acts, omitted from the Federal listing, but arising from the same criminal scheme, venture, or persisting enterprise, to avoid the statute’s single prosecution mandate. Thus Federal and State prosecutors could arrange for double prosecutions solely on matters of pleading details, some idiosyncratic to one or the other system.

The People in Lisznyia rely on his plea of guilty to the Federal conspiracy charge. They argue that the Abraham reasoning does not obtain where there is no trial at which the State substantive offenses could have been proven as in furtherance of the Federal conspiracy. As observed above, in Abraham there was a prior Federal trial at which the offense charged by the State was established as part of the conspiracy. Whether charges are disposed of by plea or trial, however, bears no functional or logical relationship to whether they indeed arise out of the same "criminal transaction”. The worst is that allowing such a distinction would discourage guilty pleas just because, unwittingly, they would offer less opportunity to avoid subsequent prosecution.

It matters not, then, that the list of overt acts in the Federal indictment of Abbamonte, Coumoutsos, and Campopiano did not include the January drug sales. Or that in Liszynia’s case there were no overt acts specified. What is significant is that in each case the particular activity for which the State seeks to hold defendants responsible could have been alleged to support the conspiracy charge. With respect to Abbamonte, Coumoutsos, and Campopiano, the conspiracy count, which covered the period from May, 1971 through April, 1973, was supported by 10 overt acts. No doubt the three January instances charged in the State indictment could as easily have been included as excluded. The same holds true in Lisznyia’s case. There the conspiracy was supposed to have continued from January 1 through November 18, 1976. Had the Federal prosecutor indeed chosen to specify overt acts, the November 18 activity charged in the State indictment could have, or perhaps must have, been one of them.

Nor does it matter that three of the appellants never went to trial on the Federal charges. Key is that in each case, had there been a trial instead of a guilty plea, the acts for which the State is prosecuting appellants could have been received as proof of the conspiracy. Insofar as Abbamonte and Coumoutsos are concerned, the January sales were in fact established at the Federal trial of their codefendant Campopiano. And with respect to Lisznyia, from the disclosure afforded in the Federal proceeding, devoted in the main to the drug seizure on November 18, it is evident that the same proof upon which the State seeks to hold Lisznyia would have been indispensable to the Federal Government’s case.

Thus, whether, under the statutory definition, the present State prosecutions arise out of the same "criminal transaction” as did the Federal conspiracy prosecution, there should be no question. The criminal transaction was a single persisting criminal enterprise to purvey dangerous drugs. The Abra ham case applies and controls, and the issue may not be averted by a pleading distinction. The substantive drug offenses and the conspiracy charges are, just as they were in Abraham, " 'so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture’, * * * thereby satisfying the paragraph '[b]’ definition of 'criminal transaction’ (CPL 40.10, subd 2, par [b])” (Matter of Abraham v Justices of N. Y. Supreme Ct. of Bronx County, 37 NY2d 560, 566, supra). As a result the State prosecutions are barred unless, as noted above, one of the exceptions to the single prosecution mandate is applicable.

Resort to CPL 40.20 (subd 2, par [a]) to save the State prosecution is of no avail. Under that exception, as explained earlier, where the elements of the offenses are "substantially different” and the acts establishing each are "in the main clearly distinguishable”, separate prosecution is permissible. As the court held in Abraham, a case in which "the same possession of the same drugs was among the acts charged and proved and for which a conviction was had”, the statutory exception does not apply (37 NY2d, p 567).

The logical impediment to the position of the prosecutor— that the exception is available unless the second offense had been pleaded and proved in the prosecution of the first—is that conspiracy is an embracive crime. It embraces all of the overt acts and substantive crimes in the persisting criminal enterprise. Hence, it is sophistic to exclude some or include others depending upon whether some or others are pleaded, proven, not pleaded, or not proven.

As for the Abraham case, the court there mentioned both allegation and proof in the prior Federal conspiracy prosecution because the presence of both made application of the principles of CPL 40.20 all the more compelling. But the presence of allegation and proof is not essential to the conclusion that the embracive conspiracy does not allow the manipulative extraction, for purposes of multiple prosecutions, of particular criminal acts from the scheme or pattern of which they were but parts.

People v Lo Cicero (14 NY2d 374, 379), a case much relied on by the State, is inapposite. There, applying a different but comparable statute, this court held that a kidnapping prosecution was not precluded by a prior acquittal in Federal court of obstructing by robbery the movement of goods in interstate commerce, although the kidnapping of the truckdriver was the method by which a loaded truck had been hijacked. It was not, however, because the Federal indictment did not charge the kidnapping that a second prosecution was permitted. Instead, it was because the kidnapping was distinguished in the State prosecution as a different crime with different elements, despite the fact that the two crimes were committed in the same criminal venture.

The problems for prosecutors engendered by CPL 40.20 and the analysis applicable to criminal prosecutions are due, it bears repeating, to the embracive nature of the crime of conspiracy. With respect to more narrowly defined substantive crimes there are no serious problems (cf. People v Lo Cicero, 14 NY2d 374, 379, supra). The public policy choice is either to avoid using the conspiracy alternative if double prosecution of offenders in criminal partnership is regarded as desirable, or to redefine the distinctions in CPL 40.20 to permit, in some manner, an exception for conspiracy along with the other exceptions. Neither in policy nor logic should the accident of pleading allegations or proof upon the trial be determinative. The unsound paradoxes to which that would lead have been discussed and need no repetition.

Accordingly, with respect to Abbamonte, Coumoutsos, and Campopiano, the orders of the Appellate Division should be reversed and the indictments dismissed. With respect to Lisznyia, the judgment, insofar as appealed from, should also be reversed, without costs, and judgment granted in favor of petitioner prohibiting prosecution of the remaining counts of the indictment.

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

In People v Abbamonte, People v Coumoutsos and People v Campopiano: Order reversed and the indictment dismissed.

In Matter of Lisznyia v Scheinman: Judgment, insofar as appealed from, reversed and judgment granted in favor of petitioner prohibiting prosecution on the remaining counts of the indictment.

      . Defendant Abbamonte had earlier raised the double jeopardy argument in a proceeding under CPLR article 78 for a writ of prohibition. This court, without opinion, unanimously affirmed the Appellate Division’s dismissal of the petition (Matter of Abbamonte v Justices of N. Y. Supreme Ct. of N. Y. County, 33 NY2d 737, affg 42 AD2d 888).

      . This appeal, arising out of a Sullivan County indictment, is from an order of the Appellate Division, Third Department. One month earlier, the Second Department, presented with a like petition from Lisznyia relating to an Orange County indictment, granted the relief sought on consent of the Orange County District Attorney (Matter of Lisznyia v Ingrassia, 59 AD2d 834). The relief granted is therefore in accord with the views expressed by this court on this appeal.


text:
    Barry E. (Anonymous) et al., Respondents, v Hollis Ingraham, Individually and as State Commissioner of Health, Appellant.
    Argued September 2, 1977;
    decided November 21, 1977

      POINTS OF COUNSEL

      Louis J. Lefkowitz, Attorney-General (James Morgan, Samuel A. Hirshowitz and David L. Birch of counsel), for appellant.
    I. The Commissioner of Health may properly refuse to issue a new birth certificate for an adopted child when he finds that the court issuing the order of adoption was not of competent jurisdiction. (Cahen v Boyland, 1 NY2d 8; Matter of Tonis v Board of Regents of Univ. of State of N. Y, 295 NY 286; Acorn Employment Serv. v Moss, 261 App Div 178, 897; Matter of Howard v Wyman, 28 NY2d 434; Matter of Dominick "C” v Ingraham, 31 AD2d 429.) II. The Mexican court that issued the order of adoption had no jurisdiction to issue the order. (Matter of Ozga v Supreme Ct. of State of N. Y, County of Kings, 8 AD2d 748; Babcock v Babcock, 53 Misc 2d 1011; Finlay v Finlay, 240 NY 429; Matter of Clarke v Waters, 33 AD2d 759; May v May, 233 App Div 519.) III. The Mexican order of adoption contravenes New York’s public policy and its order cannot be recognized under principles of comity. (International Firearms Co. v Kingston Trust Co., 6 NY2d 406; Martens v Martens, 284 NY 363, 285 NY 607; Matter of Rinner v Cannon, 33 AD2d 923; Matter of Bachman v Mejias, 1 NY2d 575; Matter of Kurtis v Ballou, 33 AD2d 1033; Matter of Lang v Lang, 9 AD2d 401, 7 NY2d 1029; Matter of Anonymous, 286 App Div 161; "Doe” v "Roe” 37 AD2d 433; Matter of Musso v McAlpine, 36 AD2d 901; Matter of Infant H, 69 Misc 2d 304.)

      Neal Forman and Martin Ginsberg for respondents.
    I. The court below properly granted the motion requesting that the Commissioner of Health of the State of New York issue a new birth certificate to the infant. II. The order of the Mexican court was a valid order as entitled to full comity of the court of this State. (Rosenstiel v Rosenstiel, 16 NY2d 64.) III. The refusal of the commissioner and Department of Health to issue a birth certificate is specious and arbitrary and has no basis in law or fact.
   OPINION OF THE COURT

Chief Judge Breitel.

Petitioners, having secured a Mexican order of adoption for a child now in their possession, bring this proceeding under CPLR article 78 to compel the State Commissioner of Health to issue their "adopted child” a new birth certificate. Special Term granted the relief, the Appellate Division unanimously affirmed, and the commissioner appeals by leave of this court.

The issue is whether section 4138 (subd 1, par [c]) of the Public Health Law entitles petitioners to compel issuance of a new birth certificate. Involved is whether the commissioner must act upon an order of a Mexican court relating to the adoption by a New York domiciled couple of a child born in New York to a New York domiciled mother.

The order of the Appellate Division should be reversed, and the petition dismissed. Before issuing a new birth certificate the State Commissioner of Health is required by the statute to ascertain that the adoption order presented issued from a "court of competent jurisdiction”. The terms "competence” and "jurisdiction”, to be sure, may have as many meanings as there are contexts in which they are used (see Nuernberger v State of New York, 41 NY2d 111, 115; Lacks v Lacks, 41 NY2d 71, 74, mot for rearg den 41 NY2d 862). If the statutory words are to be given any function, however, they must exclude an adoption order of a foreign court from which, on its face, it appears that all of the parties concerned are domiciled, resident, and present in New York. The order of the Mexican court, despite its assertion of power and competence under Mexican statutes, established, therefore, that it lacked any foundation under Anglo-American concepts of jurisdiction to effect a change in the infant’s status.

Petitioners, a married couple domiciled in New York, sought to adopt an infant girl born in New York on November 22, 1973. The child’s natural mother, who allegedly consented to the adoption, is also a New York domiciliary. The natural father is unknown.

The parties resorted to Mexico. Although the record is unclear whether the would-be adoptive parents were physically before the Mexican court, there is no dispute that neither the child nor her natural mother were in the jurisdiction. The natural mother did, however, purportedly appear by counsel. The ensuing Mexican court order of March 6, 1974 explicitly asserts the competence of the court and recites that petitioners, on whose behalf statements of four character witnesses were filed, are of age and adequate means. It directs that the child be adopted, and that her name be changed in accordance with petitioners’ request.

Mexican order in hand, petitioners turned to the State Commissioner of Health for a new birth certificate for the child. Their application was denied. In the commissioner’s view, under section 4138 (subd 1, par [c]) of the Public Health Law, the Mexican court’s lack of competence to order the infant’s adoption, apparent from the face of the order, precluded his compliance with their request. This proceeding followed.

None of the facts recited in the Mexican court order establish any basis for the exercise of power by the Mexican court. More important, no further facts were developed in this proceeding establishing any better basis for the Mexican court’s arrogation of power. Consequently, the extent of the State Commissioner’s authority to accept or reject the Mexican order turns on the recitals in that order and the meaning and purpose of the governing New York statute.

The statute sets forth the circumstances for issuance of a new birth certificate on behalf of an adopted child.

"1. A new certificate of birth shall be made whenever: * * *

"(b) notification is received by, or proper proof is submitted to, the commissioner from or by the clerk of a court of competent jurisdiction or the parents, or their attorneys, or the person himself, of a judgment, order or decree relating to parentage; or,

"(c) notification is received by, or proper proof is submitted to, the commissioner from or by the clerk as aforesaid of a judgment, order or decree relating to the adoption of such person” (Public Health Law, § 4138, subd 1, pars [b], [c]).

It is thus not all papers handed him that the commissioner must act upon; only when the papers disclose that a court of "competent jurisdiction” has ordered an adoption is issuance of a new birth certificate required (cf. Matter of Dominick "C” v Ingraham, 31 AD2d 429, esp p 431 [opn per Wither, J.]).

That issuance of a new birth certificate may be described, with less than complete accuracy, as a ministerial function does not, nor can it, avoid the principle that even ministerial responsibility depends upon the foundation presented by or with the proffered document (see Matter of Dominick ”C” v Ingraham, supra, p 431; 1943 Opns Atty Gen 260, 263). Even officials performing ministerial duties are commonly required to determine at least the facial significance of the documents upon which they are supposed to act. One accused of being insane, for instance, cannot be held upon an order of commitment which on its face establishes its ineffectiveness in law (see Warner v State of New York, 297 NY 395, 403). Nor would a clerk, otherwise authorized, be justified in issuing a marriage license when on the papers before him it is evident the would-be groom is still married to another. So, too, a new birth certificate should not be issued unless the judicial order of adoption at least on its face establishes that the order was that of a competent court (cf. Matter of Dominick "C” v Ingraham, supra, p 431; 1944 Opns Atty Gen 236, 238). The court must be "competent” not only under the law of its own sovereign, but also by virtue of personal and subject matter jurisdiction under the law of the forum in which the New York statute is being applied. (Ehrenzweig, Conflict of Laws, § 26, pp 85-88.)

On what renders a court competent to adjudicate an adoption there is a wise and diverse range of opinion (see Matter of E.W.C., 89 Mise 2d 64, 68-71; Requirements as to Reisdence or Domicil of Adoptee or Adoptive Parent for Purposes of Adoption, Ann., 33 ALR3d 176, § 2, subd [b], pp 182-184). Authorities start usually with the requirement of in personam jurisdiction over the adoptive parent and either the adoptive child or his legal custodian (see Restatement, Conflict of Laws 2d, § 78, subd b; Ehrenzweig, Conflict of Laws, § 26, pp 85-88; Taintor, Adoption in Conflict of Laws, 15 U of Pitt L Rev 222, 249-250). Moreover, at least in American jurisdictions, it is often regarded as critical—frequently, because adoption, it is reasoned, works a change in status—that the domicile of one or more of the parties be in the rendering jurisdiction (see Ehrenzweig, Conflict of Laws, § 26, pp 85-88).

In many instances the domicile of either the adoptive parent or the adoptive child will suffice (see Restatement, Conflict of Laws 2d, § 78, subd a; Goodrich, Conflict of Laws [4th ed, Scoles, 1974], § 146). Another view is that a court is competent if the adoptive parents or child at least reside in the jurisdiction. It is not unusual in such contexts, however, to treat the term "residence” as "domicile”. (See Requirements as to Residence or Domicil, Ann., 33 ALR3d 176, § 12.) Some earlier authorities would even have required that the adoptive parents and child share a common domicile (see, e.g., 2 Beale, Conflict of Laws, § 142.2, pp 713-714).

What New York requires for its own courts to adjudicate an adoption is not, of course, determinative of the competence of an out-of-State court. The New York procedure does, however, reveal this State’s strong concern for, and therefore strong policy with respect to, the adoption of resident children and, in a proper case, children sojourning within its borders. The Domestic Relations Law contemplates the residence in New York of either the adoptive parents or the adoptive child (see §§ 113, 115, subd 2; Matter of Danielle, 88 Misc 2d 78). Also significant is that the adoptive parents and child must, unless excused by the court, appear before the Judge or Surrogate for an examination (see Domestic Relations Law, § 112, subds 1, 5; § 115, subds 3, 7). In addition, an independent investigation into the advisability of the adoption is to be conducted (see Domestic Relations Law, § 112, subd 7; § 116, subd 3). (See, also, 1977 Assembly Intro No. 5960; 1977 Senate Intro No. 3094, to prevent recognition in New York of out-of-State adoptions not conforming to established standards.)

Matter of Leask v Hoagland (197 NY 193, 195-196) and New York Life Ins. & Trust Co. v Viele (161 NY 11, 18), it is true, treated children of foreign adoptions "as though they had been duly adopted under the laws of New York” (Matter of Leask v Hoagland, supra, p 196). These cases, however, involved only the adopted child’s right to inherit under a will, and the rules there formulated are expressly limited to that purpose. In short, at issue were the consequences of the adoption, given the unquestioned status of adoption in the foreign State, not recognition of that status (see, generally, Ehrenzweig, Conflict of Laws, § 51, pp 186-188).

What foundation an out-of-State court must have, in all cases, to render it competent to order an adoption recognizable in New York need not now be determined. For purposes of this case and this statute, it is enough that on the submitted documents the Mexican court was not "competent” to order the adoption of the infant child.

Although there was suggestion in this proceeding that the adoptive parents were physically before the Mexican court, the commissioner disputes this, and the Mexican judicial order does not recite that they were. In any event it has not been shown that they were ever residents or domiciliaries of Mexico. Neither the child nor her natural mother, moreover, was ever domiciled or resident in Mexico. Nor does it appear that they had ever sojourned in that jurisdiction. Insofar as any investigation into the advisability of the adoption, the order recites only that statements of four named but undescribed character witnesses were filed, and that petitioners are of age with adequate means of support.

The child’s status, situated in New York and not in Mexico, was no concern of the Mexican court. The Mexican order was a futile effort to produce an extraterritorial result not allowable with respect to an extraterritorial res. And all of this was patent from the face of the order. As all the authorities agree, however relaxed or strict in view, it is more than token formalistic submission to personal jurisdiction by the parents concerned, adoptive and natural, that gives a court power to fix an utterly foreign child’s status in a new family. In sum, New York need not under any authoritative view treat as "competent” this Mexican court purporting to order the adoption by a New York couple of a child born in New York to a New York mother.

General principles governing recognition of foreign judgments are in harmony with this conclusion. Even assuming the competence of a given court, comity will not be accorded a foreign judgment if it violates a strong public policy of the State (see Martens v Martens, 284 NY 363, 365-366, mot for rearg den 285 NY 607; 8 NY Jur, Conflict of Laws, §§ 2, 4). Indeed, as observed earlier, the State’s vital social interest in the welfare of its children is one of its strongest public policies. To lend an imprimatur to an adoption, predicated upon insufficient jurisdictional foundations and a questionable perfunctory examination into the interests of the child, would be an inexcusable abdication of the State’s role as parens patriae. It could also, it is feared, open the door to the mercenary trading of children. Most troubling, the present record provides no information, except for undetailed references in a letter, how the infant child came into possession of petitioners, a placement evidently without the intervention of any public or authorized private agency.

It follows, therefore, that the submitted order of adoption was insufficient on its face, and the commissioner’s refusal to issue a new birth certificate under section 4138 should be sustained.

It may be envisaged that it is awkward for the commissioner to determine an issue as potentially abstruse as the competence of a court. But the matter is not ended finally by the commissioner’s action. It is precisely in a judicial proceeding such as this, in the nature of mandamus to enforce a legal right, that the commissioner’s rejection may be overruled if, but only if, it appears that indeed the adoption order issued from a court of competent jurisdiction. This proceeding, as noted before, did not produce such proof. On the contrary, no more than the naked and inadequate "jurisdictional” facts recited in the Mexican order were produced.

One additional point should be addressed. Because the immediate concern is only the issuance of a new birth certificate, it is true that any decision regarding the Mexican order leaves the purported adoption itself unaffected for better or worse. It is not true, however, that the child is forever left with a New York birth certificate bearing an incomplete name. Petitioners’ recourse is a proper adoption proceeding in New York, a proceeding which one would hope would give them the opportunity to establish that the adoption is in the best interests of the child.

Perhaps the most unsettling aspect of this technically narrow proceeding, in which petitioners would studiously avoid any review of the best interests of the child, is that the child herself is unrepresented. At the very least, in this or any other proceeding affecting the child’s welfare, a guardian ad litem to participate on behalf of the child should be appointed (see Matter of Dominick "C” v Ingraham, 31 AD2d 429, 432, supra). The nisi prius court had that power to appoint and should have exercised it (CPLR 1202). The child is the ultimate principal in this proceeding, she is the ward of the court, and no one speaks on her behalf.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition dismissed.

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

Order reversed, etc.


author: Jones, J.

text:
    The People of the State of New York, Appellant, v David Yanik, Respondent.
    Argued October 4, 1977;
    decided November 21, 1977

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Richard M. Seltzer and Peter L. Zimroth of counsel), for appellant.
    I. Defendant’s guilt was proved beyond a reasonable doubt. (People v Williams, 6 NY2d 18; People v Plummer, 36 NY2d 161; Baccio v People, 41 NY 265; People v Page, 162 NY 272; People v Johnson, 46 AD2d 55, 38 NY2d 956; People v Evans, 85 Misc 2d 1088.) II. The court properly rejected defendant’s proposed charge that in order for him to be guilty of rape Ms. Dean had to have resisted his force to the "utmost” of her ability. (People v Carey, 223 NY 519; People v Dohring, 59 NY 374; People v Connor, 126 NY 278; People v Yannucci, 283 NY 546.) III. The alleged error in the court’s charge concerning the crime of rape did not affect the convictions on the counts of assault and unlawful imprisonment. (People v Cassidy, 40 NY2d 763.)

      Carol Berkman and William E. Hellerstein for respondent.
    I. Under the facts of this case, it was vital that the jury be given a clear understanding of the resistance requirement. (People v Jackson, 14 NY2d 5; People v Odell, 230 NY 481; People v Carey, 223 NY 519; People v Hughes, 41 AD2d 333, 36 NY2d 981; People v May, 57 AD2d 748; People v Evans, 85 Misc 2d 1088; United States v Thornton, 498 F2d 749; People v Dohring, 59 NY 374; People v Connor, 126 NY 278.) II. The trial court erred in permitting the District Attorney to cross-examine Yanik about his sexual success rate with women other than complainant. (People v Holliday, 38 NY2d 763; Noonan v Luther, 206 NY 105; Zucker v Whitridge, 205 NY 50; People v Webster, 139 NY 73.) III. Having correctly concluded that the trial court’s failure to give the requested instructions on resistance deprived Yanik of a fair trial on the rape charge, the court below properly vacated the convictions for assault in the third degree and unlawful imprisonment.
      (People v Palmer, 109 NY 413; People v Fernandez, 43 AD2d 83.)
   OPINION OF THE COURT

Jones, J.

On trial for rape, defendant requested a charge that "[t]o be guilty of rape in the first degree the victim must oppose the perpetrator to the utmost limit of her power by genuine and active resistance”. The trial court declined the request and instructed the jury by reading the relevant provisions of subdivision 1 of section 130.35 and of subdivision 8 of section 130.00 of the Penal Law and then added the following explanation of "forcible compulsion”: "Obviously the degree of force required to place somebody in fear will vary with the person involved. It may take a great deal of force to—or a great deal of threat to overcome resistance of some people. It may require far lesser degree to overcome the resistance of others. So the law allows you to determine as jurors whether or not, if there was force used here, whether it was forcible compulsion within the meaning of the statute.”

On appeal the Appellate Division found the instructions as given insufficient and held that it was error to have denied defense counsel’s request. "This charge should have been given * * * and it was error to refuse to do so. In fact, one searches in vain for any reference by the trial court for language used by the appellate courts, e.g., 'feigned or passive or perfunctory resistance’ is not enough. Also we find lacking that the 'resistance must be genuine and active’.” (55 AD2d, p 168.) Accordingly the Appellate Division reversed on the law and remanded the case for a new trial. We disagree and therefore reverse the disposition in that court.

The so-called "utmost resistance” charge has been widely discredited and was rejected by our Legislature in the 1965 enactment of subdivision 8 of section 130.00 of the Penal Law (and cf. L 1977, ch 692, eff Sept. 1, 1977).

It is true that the testimony with respect to the sexual encounter between this complainant and this defendant was, to say the least, different from that met with in most rape cases—the readiness of the complainant to establish an initial acquaintance when defendant inadvertently reached her on the telephone; the complainant’s willingness then to go alone with defendant to his apartment for breakfast; her volunteered description to defendant of her two recent sexual experiences; the initiation by the complainant of a telephone call to defendant to apologize for her tearful rejection of his improper sexual advances and to express her wish to see him again and "to make it up to him”; the readiness of the complainant the next evening to return to defendant’s apartment after having had dinner with him, even making arrangements for the transfer of an anticipated incoming telephone call from her father; and finally the behavior of the complainant according to her own story at the time of the act of sexual intercourse. Accordingly, we agree with the Appellate Division that: "It is evident, therefore, that the most important issue which the jury had to pass upon was the issue of whether the complainant participated in the sexual act voluntarily or whether she was the victim of force. Under the circumstances it was of the greatest importance for the jury to have had a very clear understanding of what constitutes rape in the first degree” (55 AD2d, pp 166-167).

While it may be asserted that the instructions given by the trial court were minimal, convictions are not to be set aside because, on reflection in tranquility, better charges could have been composed. Unlike most other human activities rape is an encounter the nature and dynamics of which can be perceived by the average person, including a juror; the reality of the situation is apprehended without minutely detailed analysis. It follows then that a failure to give unnecessarily expanded, meticulous instructions with respect to the meaning and application of the concept of "forcible compulsion” in rape cases may be less significant than might otherwise be true. Of course, the individual circumstances of each case will always determine the scope of the particular instructions. We cannot conclude that defendant was prejudiced in this case in consequence of the trial court’s failure to give an elaborated charge.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to the Appellate Division for determination of the facts (CPL 470.40, subd 2, par [b]).

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

Order reversed and the case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

       The drafters of the Model Penal Code discarded the "utmost resistance” standard (ALI Model Penal Code, Comment, at p 247 [Tent Draft No. 4, 1955]). Other commentators have repudiated the charge (e.g., Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77 Col L Rev 1, 8, 11; Note, Recent Statutory Developments in the Definition of Forcible Rape, 61 Va L Rev 1500, 1507-1510; Comment, Towards a Consent Standard in the Law of Rape, 43 U Chi L Rev 613, 620). The standard has been rejected by almost every court that has considered the question. (Laughlin v United States, 368 F2d 558, 559; Harrison v State, 222 Ark 773, 778-779; People v Stewart, 109 Cal App 2d 334; People v Lay, 66 Cal App 2d 889; Magwire v People, 77 Col 149, 151-155; State v Esposito, 122 Conn 604, 606-607; State v Shields, 45 Conn 256, 264; State v Dill, 42 Del 533, 537-538; Thomas v State, 167 So 2d 309, 310 [Fla]; Curtis v State, 236 Ga 362, 362-363; State v Neil, 13 Idaho 539, 547-548; Dixon v State, 264 Ind 651 [1976]; State v Whimpey, 140 Iowa 199, 200-201; State v Moore, 110 Kan 732, 734-735; State v Smith, 192 Neb 794, 796; State v McPherson, 135 NJ Super 203, 205; Bulls v State, 33 Okla Cr 64, 68-69; Kidd v State, 97 Okla Cr 415, 417; State v Verdone, 114 HI 613, 619-622; State v Sudduth, 52 SC 488, 490-492; State v Thompson, 71 S Dak 319, 333; King v State, 210 Tenn 150; State v Horne, 12 Utah 2d 162, 166; State v Roberts, 91 Utah 117, 124-125; Barnett v Commonwealth, 216 Va 200, 202-203; State v Pilegge, 61 Wash 264, 267-268.) Only a few States retain the "utmost resistance” standard by judicial interpretation and in these States the standard is applicable in limited situations. (See State v Denton, 101 Ariz 455, 458; State v Dizon, 47 Hawaii 444.)


author: Fuchsberg, J.

text:
    In the Matter of Alfred Harbolic, Appellant, v Stephen Berger, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued October 6, 1977;
    decided November 21, 1977

      POINTS OF COUNSEL

      Richard Peyton Whiteley and John T. Hand for appellant.
    I. 18 NYCRR 352.19, which budgets tax withholding as a work expense, violates the direction in section 131-a (subd 1) of the Social Services Law that a family’s minimum level subsistence needs be fully provided for, less any available income. (Matter of Reyes v Dumpson, 40 NY2d 725; Matter of Dumbleton v Reed, 40 NY2d 586; Shea v Vialpando, 416 US 251; Van Lare v Hurley, 421 US 338; Lewis v Martin, 397 US 552; King v Smith, 392 US 309; Matter of Berliner v Lavine, 80 Misc 2d 1; Matter of Richards v Lavine, 78 Misc 2d 801, 48 AD2d 204; Matter of Sigety v Ingraham, 29 NY2d 110; Matter of Barie v Lavine, 40 NY2d 565.) II. 18 NYCRR 352.19, which directs that mandatory payroll tax withholding be budgeted as a work expense, does not correctly apply the statutory limitation on deduction of expenses necessary and incident to employment in section 131-i of the Social Services Law. (Williams v Williams, 23 NY2d 592; Rankin v Shanker, 23 NY2d 111; Metropolitan Life Ins. Co. v Durkin, 301 NY 376; Matter of Howard v Wyman, 28 NY2d 434; Matter of Jones v Berman, 37 NY2d 42.)

      Louis J. Lefkowitz, Attorney-General (Maryellen Weinberg, Samuel A. Hirshowitz and Herbert J. Wallenstein of counsel), for Stephen Berger', respondent.
    I. The courts below correctly held that respondents, in computing appellant’s public assistance grant, properly included mandatory payroll deductions for taxes as expenses necessary and incident to his employment, and thus subject to the $80 per month maximum subtraction from gross income provided in section 131-i of the Social Services Law. (Roundtree v Berger, 420 F Supp 282; Montgomery v Daniels, 38 NY2d 41; Matter of Howard v Wyman, 28 NY2d 434; Matter of Sigety v Ingraham, 29 NY2d 110; Matter of Union Free School Dist. No. 2 v Nyquist, 38 NY2d 137; Matter of Lezette v Board of Educ., 35 NY2d 272; Young Men’s Christian Assn, v Rochester Pure Waters Dist.,
      37 NY2d 371; People ex rel. New York Cent. & Hudson Riv. R. R. Co. v Woodbury, 208 NY 421; Matter of Dobess Realty Corp. v Magid, 186 Misc 225; Matter of Lockport Union-Sun & Journal v Preisch, 7 AD2d 502.)
   OPINION OF THE COURT

Fuchsberg, J.

This case turns on whether an administrative regulation of the State Commissioner of Social Services, 18 NYCRR 352.19, is in contravention of sections 131-a and 131-i of the Social Services Law because it mandates that income and Social Security taxes withheld from the wages of an employed head of a family in need of a home relief subsidy be regarded as available income only to the extent that it is possible to include them within the strict statutory limitation on the amount of the recipient’s work expenses that are reimbursable.

The commissioner, by confirming a decision of the Westchester County Department of Social Services applying the regulation, indicated that the statutes and the regulation are not in conflict. In this proceeding, brought pursuant to CPLR article 78, Special Term upheld the determination; the Appellate Division affirmed. Petitioner now appeals by leave of this court.

Petitioner, a low-income factory worker residing with his wife and two minor children, applied to the county department for a public assistance supplement. Because he was fully employed, his family was eligible only for home relief, a program totally funded by our State and local governments to provide "minimum level subsistence” to needy individuals and families (see Social Services Law, §§ 157, 158; Matter of Reyes v Dumpson, 40 NY2d 725, 727).

The size of a home relief grant is determined by measuring a family’s available financial resources, including work income, against the "standard of monthly need”, a term of art used to designate the amount which the department deems necessary to supply the family with basic shelter, heat, food, clothing and other needs for everyday living (Social Services Law, § 131-a). In the case before us, the family’s sole resources were the father’s earnings. Recognizing that gross earnings usually exceed what is actually available to an employee, the Legislature provided for "allowing appropriate amounts from his earnings for expenses necessary and incident to his employment”, limiting that allowance, however, to a maximum of $80 per month unless otherwise required by Federal law or regulation (Social Services Law, § 131-i).

Presumably in implementation of this statute, the State Commissioner promulgated regulation 352.19. In pertinent part, it reads:

"(a) The following expenses incident to employment shall be deducted from gross earnings.

"(1) All non-personal work expenses such as union dues, cost of tools, materials, uniforms and other special clothing required for the job, mandatory fees for licenses or permits fixed by law.

"(2) All personal work expenses such as Federal, State and local taxes, social security taxes, group insurance, child care, meals and transportation.”

Acting under section 131-i, but applying regulation 352.19, the county department totaled petitioner’s monthly "work expenditures” at $129.20. Of that sum, $62.65 consisted of mandatory payroll deductions on account of income and Social Security taxes; the rest, $66.55, covered transportation to work, union dues, compulsory disability insurance, a dollar a day for lunch and the like. Neither side questions the accuracy or propriety of any of the items which made up the $129.20. It is also agreed that petitioner’s gross income came to $481 and that $441 represented his family’s "standard of monthly need”. Applying the regulation, the county department reduced the $129.20 figure to the statutory $80 ceiling. It then deducted the $80 from the gross earnings of $481, leaving an "available income” of $401. That rendered the petitioner eligible for a monthly grant of $40, which supposedly provided his family with the $441 minimum level set forth in the statute (Social Services Law, § 131-a, subd 2).

Petitioner complained that in reality, however, the available earnings before subsidy were only $351.80 ($481 less $129.20) and that, even after adding the $40 subsidy, the family would end up with a shortfall of $49.20 from the standard certified as necessary to sustain his family.

There is no challenge to the statutory $80 ceiling. The petitioner accepts it as a reasonable means of encouraging recipients to control the total amount of their reimbursable expenses (accord Roundtree v Berger, 420 F Supp 282, affd 430 US 912). Rather, he takes issue with the inclusion of withheld income and Social Security payments in the category of "expenses incident to employment”. He also urges that the tax payments ought first to have been deducted from the gross earnings for the purpose of reaching the amount from which the work-related expenses (not to include tax withholdings) were to be deducted in the process of determining true available income.

Furthermore, he asserts that the pursuit of such a course in this case would have disclosed $418.35 ($481 income less $62.65 withholdings = $418.35) to be the sum from which the $66.55 in nontax work-related expenses should have been deducted. The result, he goes on, would have proved the correct amount of available income to be $351.80 ($418.35 less $66.55) and have called for a supplement of $89.20 instead of the $40 arrived at by the respondents, a difference which, though perhaps small to some, obviously could represent a serious hardship to a family at the very limited income level of the one in this case. On this analysis, petitioner’s position is that regulation 352.19, by compelling serious distortion instead of reasonable evaluation in the denomination of what is "available” to meet the "standard of monthly need”, frustrates the intent of subdivision 2 of section 131-a of the Social Services Law.

In appraising that analysis, we first note that section 131-i of the Social Services Law is silent on the items to be budgeted as "expenses necessary and incident to * * * employment.” It does not specifically list allowable deductions from earnings, nor does it expressly define them (compare Social Services Law, § 366, subd 2, par [a]).

Under such circumstances, it is appropriate to examine the intention of the Legislature, if ascertainable (Williams v Williams, 23 NY2d 592, 598). In doing so, we "look to the entire statute, its legislative history and the statutes of which it is made a part” (Rankin v Shanker, 23 NY2d 111, 114).

The legislative history of section 131-i of the Social Services Law strongly suggests that the statutory allowance was not intended to include tax withholding as a work expense. It discloses that, when the legislation was still under consideration, the State Executive Department submitted a memorandum in which it set forth a twofold purpose: "The bill removes any potential incentive for persons who are working to voluntarily end their employment or reduce their earnings without good cause in order to receive or increase their welfare payments. It also subjects the allowances for work expenses to a reasonable maximum limit” (1971 McKinney’s Session Laws of NY, p 2511). We note too that, on approving the bill, the Governor also emphasized that the statute was "designed to provide increased opportunities for gainful employment to persons who are presently dependent upon the welfare system and to deter gainfully employed persons from leaving their jobs in order to obtain public assistance” (id., pp 2636-2637).

The first of these purposes is served by limiting allowance for expenses incident to employment, such as transportation, meals and uniforms. A recipient, hopefully, will be induced to economize in incurring reimbursable expenses by taking such measures as having his lunch prepared at home or joining a car pool, matters over which he can exercise direct control.

But he cannot control the amount of taxes withheld except perhaps by reducing the extent of his employment and, with it, the amount of his wages. When taxes are taken from a home relief recipient’s wages at the source they might just as well have never been earned by him at all insofar as his ability to meet his immediate need to feed, house or clothe his family is concerned. Blindness to that fact can serve but to sap a recipient’s incentive to work and so tends to operate at cross-purposes to the legislative intent. This problem is not obviated by subsequent refund of taxes withheld from wages. Recipients of public welfare are required to report the receipt of tax refunds, which are then either retained by the agency or, when received, are required to be applied by recipients to eliminate or reduce their need for subsistence (see 18 NYCRR 352.23; Administrative Letter No. 75 ADM-35).

There can have been few motivations as paramount to the sponsors of the statutes before us as that suggested by the quoted expressions of legislative intent that the marginally compensated worker not be discouraged in his search for self-sufficiency. Among other things, the alternative often is the personal and vocational demoralization that ensues when one is unable to provide for one’s family. Farthest from the purposes of the statutory enactments is the fashioning of procedures which would put a premium on less work by rewarding it with a fuller subsidy. Moreover, clearly the public interest in returning people from the ranks of the unemployed and, once that is accomplished, in keeping them fully employed, is a strong one.

These considerations but reinforce our view that the statutory scheme is thwarted when withheld income and Social Security taxes, in whole or in part, are not regarded either as reimbursable work expenses or as unavailable to meet the current needs of home relief recipients in the allotment of subsidies necessary to raise their available income to the applicable standards of need.

Respondents nevertheless argue that the construction given a statute by an agency responsible for its administration and a regulation adopted by the agency for that purpose are each entitled to great weight and should be upheld if not irrational or unreasonable (Matter of Howard v Wyman, 28 NY2d 434, 438; cf. Matter of Sauer v Director of Creedmore Pyschiatric Center, 41 NY2d 1023; Matter of Rubin v Levine, 41 NY2d 1024). But, since "[administrative agencies can only promulgate rules to further the implementation of the law * * * [there is] no authority to create a rule out of harmony with the statute” (Matter of Jones v Berman, 37 NY2d 42, 53).

The following language from Judge Gabrielli’s recent opinion in Matter of Dumbleton v Reed (40 NY2d 586), a case involving the Federally funded Medicaid program, underscores the fact that the "rule” in our case is not consonant with the statutes before us (p 588): "It cannot be seriously argued that FICA taxes are income 'actually available’ to an applicant. Only in the remote sense that an applicant may possibly receive Social Security benefits, if he on some future date qualifies for them, may he recoup some of these deductions— in contrast with the present need of medical assistance for his family. Social Security taxes are manifestly different from life insurance premiums or contributions to pension funds and retirement plans where an individual himself makes the economic decision to allocate a portion of the income he receives for such purposes. With respect to FICA taxes, there is no individual choice and one never exercises dominion or control over the funds deducted. Indeed, the Internal Revenue Code requires an employer to withhold FICA taxes directly from wages (US Code, tit 26, § 3102), and he is subject to personal liability and criminal sanction for failure to do so (see US Code, tit 26, §§ 7501, 6672, 7202)”.

In the decisive point it makes, there is little, if any, meaningful distinction between the case now before us and Dumbleton; respondents tender none in their brief. The statute involved there, section 366 of the Social Services Law, parallels section 131-a of the Social Services Law.

For all these reasons, we conclude that 18 NYCRR 352.19, to the extent that it includes payroll withholding tax deductions within the $80 limitation contained in section 131-i of the Social Services Law, is invalid. It follows that the order of the Appellate Division should be reversed and the matter remitted to the Supreme Court, Westchester County, with directions to remand for further proceedings in accordance with this opinion.

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

Order reversed, with costs, and the matter remitted to Supreme Court, Westchester County, with directions to remand to the State Department of Social Services for further proceedings in accordance with the opinion herein.

      . Regardless of the extent of its financial need, an intact family with a fully employed father is not eligible for Federal assistance (US Code, tit 42, § 607). Federal laws and regulations are, therefore, not applicable to this case.

      . Respondent raised several constitutional challenges to the regulation and the statutes as interpreted by respondent in the courts below. We necessarily rejected these contentions when we dismissed his appeal taken as of right upon the ground that no substantial constitutional question was directly involved (40 NY2d 989) and he has now abandoned them in this court.

      . Interestingly, in a situation involving a not dissimilar unavailability of income, the department itself recognizes that an amount deducted from earnings for garnishment, wage assignment or "other cash income [which] is unavailable to the applicant or recipient * * * shall not be applied against need until and unless the agency can secure a release from such restriction” (18 NYCRR 352.17 [b] [4]).

      . State law also mandates the withholding of State income taxes (Tax Law, § 366).