author: Titone, J.

text:
    The People of the State of New York, Respondent, v Murray Kaplan, Appellant.
    Argued April 24, 1990;
    decided June 5, 1990

      POINTS OF COUNSEL

      Roger L. Stavis, Steven R. Kartagener and Stanley N. Lupkin for appellant.

      Robert M. Morgenthau, District Attorney (Carol A. RemerSmith and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Titone, J.

Defendant Murray Kaplan was convicted of first degree criminal sale of a controlled substance (Penal Law § 220.43) because of his involvement in a narcotics network which operated out of a garment business office located in the Empire State Building. His primary contention on appeal is that although the culpable state required for the commission of this crime is "knowledge,” the trial court should have instructed the jury that defendant could not be held liable as an accomplice unless he acted with the specific intent to sell a controlled substance. We conclude that such an instruction is not required and that, accordingly, the conviction should be affirmed.

From May 1, 1986 to February 17, 1987, the police investígated a cocaine ring which apparently operated out of an office maintained by defendant’s cousin, Mike Kaplan, in the Empire State Building. Detective Janis Grasso, posing as a drug courier for someone named "Ronnie” from Atlantic City, engaged in a series of transactions, primarily with Mike Kaplan. The charges against defendant were based on his actions on October 15, 1986, when, pursuant to a prior phone call, Grasso went to Kaplan’s office to purchase 10 ounces of cocaine and found Kaplan, Kaplan’s brother and defendant present. After introducing Grasso to the other two men, Mike Kaplan told defendant "to take care of the young lady.” Defendant got off the couch, walked to a file cabinet in the room, removed a manila envelope from it, and placed it on the desk in front of Grasso. She in turn took out $15,000 in prerecorded buy money and placed it on the table. Defendant picked up the money, took it over to the table and began counting it. At the same time, Grasso opened the manila envelope, took out a zip-lock plastic bag, and placed the drugs into her purse remarking that "it looks nice.”

Defendant was subsequently charged with, inter alia, criminal sale of a controlled substance. Before the case was submitted to the jury, defense counsel asked the court to instruct the jurors that in order to convict defendant as an accomplice they must find that he had "specific intent” to sell a controlled substance, and that he had to "share the intent or purpose of the principal actors.” The court denied defendant’s request, noting that the mental culpability required for criminal sale was not "intent” but "knowledge” and, further, that the standard charge for accomplice liability requires proof that the defendant "intentionally aided” the other participants. Following the court’s charge, which tracked the language of the applicable statutes, the jury found defendant guilty of criminal sale. The Appellate Division, First Department, affirmed defendant’s conviction, without opinion, and leave to appeal was granted by a Judge of this court.

Penal Law §20.00 provides that a person may be held criminally liable as an accomplice when he performs certain acts and does so "with the mental culpability required for the commission” of the substantive crime. Despite this language, defendant argues, based on case law predating the present Penal Law, that even though the substantive crime with which he was charged — criminal sale of a controlled substance —requires only knowledge, the statute should be construed to require proof of a more exacting mens rea, namely specific intent to sell.

Under section 2 of the former Penal Law, a person could be convicted as a principal if he "aid[ed] and abett[ed] in [the] commission [of a crime]”. The former Penal Law, however, did not specifically state what type of acts were required for conviction (see, Denzer & McQuillan, Practice Commentary, McKinney’s Cons Law of NY, Book 39, Penal Law art 20, at 32 [1967]; 7 Zett, New York Criminal Practice |f 62.1 [2]). Consequently, in order to prevent the imposition of criminal liability for the principal’s crime on someone who may have been merely present, the courts required proof that the aider or abetter " 'share[d] the intent or purpose of the principal actor’ ” (People v La Belle, 18 NY2d 405, 412, quoting 1 Burdick, Crimes § 221, at 297; see, People v Morhouse, 21 NY2d 66, 73-74 [accomplice had knowledge of and shared guilty purposes of principle]; People v Fasano, 11 NY2d 436, 443 [accomplice must be "engaged in a common purpose or design”]; see also, Comment, Jury Instructions in Aiding and Abetting Cases, 68 Colum L Rev 774, 777-780).

Defendant’s argument is that this "shared intent or purpose” test required proof, in his case, that he acted with the specific intent to sell cocaine. However, any lack of clarity that previously existed under section 2 of the former Penal Law was eliminated by the adoption of section 20.00 of the revised Penal Law, which specifies that an accomplice must have acted with the "mental culpability required for the commission” of the particular crime. Further, we have already construed section 20.00 as not requiring specific intent within the meaning of Penal Law § 15.05 (1) when the substantive crime does not involve such intent (see, People v Flayhart, 72 NY2d 737, 741). Finally, the "shared intent or purpose” language from our earlier cases, which appears occasionally even in cases arising under the modern statute (see, e.g., People v Allah, 71 NY2d 830, 831 ["community of purpose”]; People v Cummings, 131 AD2d 865; People v McLean, 107 AD2d 167, 169, affd 65 NY2d 758), cannot be read for the proposition, advanced by defendant, that a specific wish to commit the principal’s substantive crime is required in all circumstances, including those involving substantive crimes with mental states other than that defined in Penal Law § 15.05 (1). Indeed, the "shared intent or purpose” test set forth in the case law merely establishes that acts undertaken in relative innocence and without a conscious design to advance the principal’s crime will not support a conviction for accomplice liability. The same conclusion, however, is implicit in the specific requirement in Penal Law § 20.00 that the accomplice "solicit[ ], request[ ], command[ ], importunef ], or intentionally aid[ ]” (emphasis added) the principal, since all of the delineated acts import goal-directed conduct (see, 7 Zett, New York Criminal Practice [[ 62.1 [2]).

The distinction made here is a subtle, but important, one. It is well illustrated by our holding in People v Flayhart (supra), in which we concluded that the defendants could be guilty as accomplices to the crime of criminally negligent homicide under Penal Law § 125.10, even though neither defendant had the victim’s death as a "conscious object” (see, Penal Law § 15.05 [1]). This result flowed naturally from the fact that both defendants could be found to have "fail[ed] to perceive a substantial and unjustifiable risk” of death — the "mental culpability required for the crime” (Penal Law § 20.00 ["acting with the mental culpability required for the commission thereof’]) — and that both engaged in deliberate conduct to advance the common enterprise, i.e., the egregious neglect of the victim.

Similarly, in People v Lipton (54 NY2d 340), this court upheld various counts of a physician’s conviction arising out of a scheme in which the defendant wrote prescriptions for controlled substances that were subsequently either used by himself and his codefendants or sold to others by one of his codefendants (id., at 344). The court’s statement in dictum

that the physician could not have been liable as an accomplice to an illegal sale absent a "specific interest in having the actual drugs sold to some third party” or some other form of "specific intent” (id., at 349), was an apparent reference to the "intentionally aiding” requirement of Penal Law § 20.00, as distinguished from the statutory mens rea requirement that the accomplice act with the level of mental culpability required for the principal’s crime.

For the same reasons, we reject defendant’s alternative argument that the crime of which he was convicted under the court’s charge is indistinguishable from second degree criminal facilitation, a class C felony (Penal Law § 115.05). A person is guilty of second degree criminal facilitation when "believing it probable that he is rendering aid to a person who intends to commit a class A felony, he engages in conduct which provides such person with means or opportunity for the commission thereof and which in fact aids such person to commit such class A felony” (Penal Law § 115.05 [emphasis supplied]). This statute was enacted to provide an additional tool in the prosecutorial arsenal for situations where the "facilitator” knowingly aided the commission of a crime but did not possess the mental culpability required for commission of the substantive crime (see, Donnino, Practice Commentaries, McKinney’s Cons Law of NY, Book 39, Penal Law art 115, at 432-433; see generally, People v Beaudet, 32 NY2d 371, 377; People v Gordon, 32 NY2d 62, 65; Staff Notes of Commission on Revision of Penal Law and Criminal Code, Proposed New York Penal Law, McKinney’s Spec Pamph, at 328 [1964]). Additionally an "accomplice” and a "facilitator” are distinguishable in that the accomplice must have intentionally aided the principal in bringing forth a result, while the facilitator need only have provided assistance "believing it probable” that he was rendering aid.

In defendant’s case there was sufficient evidence for the jury to find that, knowing the substance in question was cocaine, defendant intentionally aided Mike Kaplan by delivering it to Detective Grasso (see, People v Dordal, 55 NY2d 954; People v Payne, 135 AD2d 746; People v Serra, 104 AD2d 66; People v Bray, 99 AD2d 470). The evidence established that after being asked by Mike Kaplan to "take care of’ Detective Grasso, defendant immediately went to a file cabinet drawer, retrieved a package containing cocaine, and gave the package to Grasso in exchange for money which defendant immediately began to count. That defendant neither negotiated nor arranged the transactions does not affect his liability as an accomplice, and the court was not required to include specific intent to sell as an element in its charge on accessorial liability. The elements were adequately conveyed when the court told the jury that it must find both that defendant acted with the specific intent required for the substantive offense, i.e., knowledge that the substance was cocaine, and that he "intentionally aided” the

sale.

We have considered defendant’s remaining contentions and they are either únpreserved or without merit.

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

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

Order affirmed.

      . The additional charges were (1) a conspiracy count, which was severed; (2) sale and possession counts arising out of an alleged August 26, 1986 incident, which were dismissed before trial; (3) a possession count arising out of the October 15, 1986 incident, which was dismissed on the prosecutor’s motion and (4) sale and possession counts involving an incident occurring on August 5, 1986, as to which the jurors in the present action were unable to agree.

      . Along with defendant, Mike Kaplan, and six others were also indicted and charged with conspiracy, sale, and possession of narcotics as a result of the investigation. All of these defendants have either been convicted, or have pleaded guilty, to some or all of the counts against them.

      . Penal Law § 220.43 provides, in pertinent part, that "[a] person is guilty of criminal sale of a controlled substance in the first degree when he knowingly and unlawfully sells” (emphasis supplied). A person acts knowingly "when he is aware that his conduct is of such nature or that such circumstance exists” (Penal Law § 15.05 [2]). In contrast, a person acts intentionally "when his conscious objective is to cause such result or to engage in such conduct” (Penal Law § 15.05 [1]).


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    In the Matter of Pyramid Company of Watertown, Respondent, v Roger E. Tibbets, as Sole Assessor of the Town of Watertown, et al., Appellants.
    Argued May 1, 1990;
    decided June 5, 1990

      POINTS OF COUNSEL

      Dennis G. O’Hara and Craig M. Atlas for appellants.

      Sidney Devorsetz, Rosemary Stack and Albert M. Ferio, Jr., for respondent.

      Norman H. Gross for the New York State School Boards Association, Inc., amicus curiae.

   OPINION OF THE COURT

Simons, J.

Section 485-b (1) of the Real Property Tax Law grants exemption to real property "constructed, altered, installed or improved * * * for the purpose of commercial, business or industrial activity”. The statute authorizes a partial exemption for 10 years. In the first year the exemption equals 50% of the increased assessed value attributable to the improvements and it is reduced 5% per year thereafter until the property becomes fully taxable (Real Property Tax Law § 485-b [2] [a]). The purpose of the statute is to encourage the construction and expansion of commercial and industrial facilities in the State (Newsday, Inc. v Town of Huntington, 82 AD2d 245, 246, affd 55 NY2d 272). In 1985 the Legislature, in an effort to minimize the loss of local tax revenues while still preserving the inducement for investment, amended the section by adding a provision prohibiting multiple exemptions for the same improvements (Real Property Tax Law § 485-b [2] [d]).

This article 78 proceeding seeks to annul the 1987 decision of respondent Assessor of the Town of Watertown denying petitioner’s application for the exemption. The assessor denied the application because during construction the property had been tax free while owned by the Jefferson County Industrial Development Agency (JCIDA). The issue is whether the property is entitled to the business investment exemption after enjoying exemption while held by the JCIDA.

In May and August of 1985, petitioner acquired property located in the Town of Watertown, Jefferson County, and started construction on a shopping mall. To obtain favorable financing for the project, petitioner entered into an arrangement with the JCIDA whereby it conveyed the property to JCIDA and leased it back during construction. Industrial development agencies, such as JCIDA, are authorized by article 18-A of the General Municipal Law to help attract new business and stimulate the expansion of existing business (see, General Municipal Law § 852). Because they are public benefit corporations, they enjoy a number of financing advantages and are exempt from many taxes imposed on private parties (General Municipal Law § 874). During the time that petitioner’s property was owned by the JCIDA, it was entitled, among other tax benefits, to a real property tax exemption (see, Real Property Tax Law § 412-a). That statute states that real property owned by industrial development agencies shall be entitled to exemptions as provided in the General Municipal Law. Section 874 of the General Municipal Law specifically grants full exemption from real property taxes to properties owned by industrial development agencies.

Although the property received a real property tax exemption while owned by JCIDA, petitioner received no benefit from it because by the terms of the JCIDA agreement, approved by respondent town by resolution dated June 13, 1985, petitioner made "payments in lieu of taxes” (PILOT payments) equal to the amount of town, county and school district taxes that it would have been obligated to pay on the land if title to the property had not been conveyed to the JCIDA. Thus, when the assessment was increased to $3,000,000 ($1,200,000 for land and $1,800,000 for improvements) on March 1, 1986, the first taxable status date after petitioner’s conveyance to JCIDA, petitioner’s PILOT payments were increased accordingly.

After the mall was completed, in February 1987, JCIDA reconveyed title to petitioner as agreed. Thereafter, in March 1987, respondents set the new tax-assessment for the property at $25,000,000, a $22,000,000 increase attributable solely to the improvements added after the taxable status late in 1986. Petitioner filed its application with respondents for a business investment exemption for this $22,000,000 increase under Real Property Tax Law § 485-b. Respondents denied the application because the property had been exempt from real property taxes when owned by the JCIDA and received other tax benefits as a result of JCIDA financing. Respondents concluded that petitioner was not entitled to receive the exemption authorized by Real Property Tax Law § 485-b because construction was completed while title was in the name of JCIDA and therefore wholly exempt. Petitioner commenced this proceeding to challenge that decision.

Supreme Court granted the petition. It noted that while owned by the JCIDA, the property was eligible for full exemption from any real property taxes, pursuant to Real Property Tax Law § 412-a and section 874 of the General Municipal Law, but that petitioner made PILOT payments in the amounts that would have been due had the property not been entitled to such exemption. The court concluded that inasmuch as petitioner had not "taken advantage” of the exemption available under Real Property Tax Law § 485-b before reacquiring title, it was now entitled to it. The court also noted that the transfer tax, mortgage recording tax and sales tax exemptions previously accorded the subject property while owned by the JCIDA did not foreclose exemption because they were authorized by provisions of the Tax Law, not the Real Property Tax Law (see, Real Property Tax Law § 485-b [2] [d]). The Appellate Division affirmed for the reasons stated at Supreme Court and we granted leave to appeal.

Respondents contend that petitioner may have either the financial benefits of an IDA, including a real property tax exemption, an exemption from sales tax on materials purchased for the mall and an exemption from mortgage recording tax, or it may have the benefit of the 10-year tax exemption pursuant to Real Property Tax Law § 485-b, but it cannot have both. They maintain that by conveying the property to the JCIDA, petitioner has already received the exemption for improvements that took place while the JCIDA held title to the property and it cannot, upon reacquiring title, receive the exemption again contrary to the provisions of Real Property Tax Law § 485-b (2) (d).

Petitioner maintains that there is nothing inconsistent in a developer availing itself of the benefits derived from dealing with an industrial development agency and then seeking a partial tax exemption on the completed construction if respondents have chosen not to "opt out” of the authorized exemption as the statute permits them to do (see, Real Property Tax Law § 485-b [7]).

We agree with petitioner and therefore affirm but we do so for different reasons than those stated by Supreme Court.

Contrary to the conclusion below, while the property was held by the JCIDA it did take advantage of the exemption from real property taxes and was carried as wholly exempt on the town’s tax rolls (see, Baker v Cole-Layer-Trumble Co., 42 AD2d 581, 582). Even though Pyramid made PILOT payments identical to the amount of real property taxes which would have been due had there been no exemption, these were not real property tax payments. Indeed, the agreement was necessary only because the property was exempt. That is not dispositive, however. To be foreclosed from receiving a business investment exemption, the prior exemption must have (1) been authorized by the Real Property Tax Law and (2) covered the same improvements which are the subject of the pending exemption (see, Real Property Tax Law § 485-b [2] [d]). Neither condition was satisfied in this case.

First, the real property tax exemption received when the property was owned by the JCIDA was not authorized by the Real Property Tax Law, but by General Municipal Law § 874. Real Property Tax Law § 412-a states that real property owned by an industrial development agency "enumerated in the general municipal law shall be entitled to such exemption as may be provided therein.” Nothing in it "authorizes” an exemption. It merely refers to an exemption independently "provided” in General Municipal Law § 874 (see, Matter of City of Lackawanna v State Bd. of Equalization & Assessment, 16 NY2d 222, 228 [Real Property Tax Law was merely an attempt to gather together, for the first time, all provisions of Tax, Education and Village Laws relating to taxation of real property]). Unless the property was exempt from real property taxes under the General Municipal Law, it was not exempt at all.

Second, exemption is not foreclosed because the prior real property tax exemption authorized for JCIDA did not cover the same improvements that are the subject of the pending application by petitioner for a business investment exemption. While the JCIDA held title to the property in 1986, the assessment was $3,000,000, representing the value of the land and construction completed on the taxable status date. The mall was substantially completed in December of 1986 and petitioner obtained title to the property in February 1987. In March 1987, the property was reassessed and a value of $25,000,000 placed on it. Thus, the application for a business investment exemption on the $22,000,000 valuation increase was for improvements that had not been assessed previously and had never received an exemption. The clear intent of the limitation in section 485-b (2) (d) was to prevent a property owner from escaping real property tax liability for the same improvement by either combining two partial exemptions to increase the exemption to 100% or by using the exemptions sequentially to extend the time frame from 10 years to 20 years. In this case petitioner did not receive more than one tax exemption on the same improvement and neither the language of the statute nor the legislative intent is violated.

In sum, petitioner seeks no more than the Legislature has authorized. Respondents had not "opted out” of the section 485-b exemption and petitioner relied on it as an inducement in developing its mall (see, Real Property Tax Law § 485-b [7]). As a result of the construction and the $25,000,000 full assessment, the municipalities’ tax base will increase from $3,000,000 to $14,000,000 ($3,000,000 + 50% of $22,000,000) even if petitioner receives the section 485-b exemption. Over 10 years the exemption will decrease and the assessed value of property on respondents’ tax rolls will increase by $22,000,000 not previously listed. Far from losing anything, respondents will gain substantial new revenues from the development.

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

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.

      . These other statutory exemptions available to it under the Tax Law as purchaser of the property included a transfer tax exemption (Tax Law § 1400 et seq.), a mortgage recording tax exemption (Tax Law § 258) and sales tax exemption (Tax Law § 1101 et seq.). Respondents originally contended these payments also barred petitioner’s application but no longer rely on that argument.

      . General Municipal Law §874 provides: "(1) It is hereby determined that the creation of the [industrial development] agency and the carrying out of its corporate purposes is in all respects for the benefit of the people of the state of New York and is a public purpose, and the agency shall be regarded as performing a governmental function in the exercise of the powers conferred upon it by this title and shall be required to pay no taxes or assessments upon any of the property acquired by it or under its jurisdiction or control or supervision or upon its activities.”


author: Bellacosa, J.

text:
    The People of the State of New York, Respondent, v Edward Van Pelt, Appellant.
    Argued April 25,1990;
    decided June 5, 1990

      POINTS OF COUNSEL

      Frank A. Brady and Philip L. Weinstein for appellant.

      William L. Murphy, District Attorney (Yolanda L. Rudich and Karen F. McGee of counsel), for respondent.

      Lawrence S. Goldman, Frederick J. Jacobs, Roanne Mann and Lawrence B. Pedowitz for Criminal Law Committee, Association of the Bar of the City of New York, amicus curiae.

      Jonathan E. Gradess and Yolanda Villa for the New York State Defenders Association, amicus curiae.

   OPINION OF THE COURT

Bellacosa, J.

Defendant’s first trial and conviction resulted in a reversal by the Appellate Division for jury instructional error. The second jury trial resulted again in a conviction and in a higher sentence imposed by a different Justice. The Appellate Division affirmed and a Judge of this court granted leave to appeal. The issue is whether an enhanced sentence, under these circumstances, offends State constitutional due process protections, where the recitation made by the sentencing court on the record does not justify the tougher sentence referable to cognizable reasons occurring subsequent to the first sentencing, sufficient to overcome the presumption of institutional "vindictiveness”. Because the procedure employed does not satisfy State due process requirements, the order of the Appellate Division should be reversed and the case should be remitted for resentencing.

Defendant and his brother were indicted in 1981 for the gunpoint robbery of an employee of a liquor store in Staten Island. The brother pleaded guilty and defendant was convicted, after a jury trial, earning a concurrent sentence as a second felony offender of 5 to 10 years and 4 to 8 years, respectively, for the two robbery counts. Subsequently, the Appellate Division reversed and remanded for a new trial because of the trial court’s failure to instruct the jury correctly concerning the prosecution’s burden of disproving defendant’s alibi beyond a reasonable doubt (see, People v Van Pelt, 119 AD2d 707).

At the retrial before a different Justice, defendant was again convicted on a jury’s verdict of first and second degree robbery. At the sentencing — now challenged on this appeal— the Trial Justice sentenced defendant to concurrent terms of IVi to 15 years and 6 to 12 years, respectively, with the following relevant comments:

"I was unfavorably impressed with the fact that it appeared to me that the defendant’s constant contact with his family concerning this particular case is understandable from a human point of view but I really got the impression that the defendant was, in effect, bullying his sister and his brother-in-law to come in and do the right thing vis-á-vis establishing an alibi for him when I didn’t believe the alibi.

"There is no reason for me to disbelieve the complaining witness. He had nothing to gain one way or another by this case. To make him come in twice and relive the trauma of looking down the barrel of a gun and not knowing whether or not it had a hair trigger or not or whether this defendant had a good aim or a bad aim or whether or not it was even loaded. That was all factored in my consideration of a sentence in this case. ” (Appellant’s apdx, at A41 [emphasis added].)

In North Carolina v Pearce (395 US 711), the Supreme Court formulated a rule designed to neutralize the actuality or perception of judicial vindictiveness in sentencings after a new trial ordered as a result of a defendant’s successful appeal from an earlier conviction. It framed the issue around "the constitutional limitations upon the imposition of a more severe punishment after conviction for the same offense upon retrial” (395 US, supra, at 715-716). The Supreme Court held that a more severe sentence after retrial did not violate due process where the subsequent sentencer acted on "events subsequent to the first trial” (395 US, supra, at 723), provided that "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” (395 US, supra, at 726 [emphasis added].) The holding has been interpreted as creating a rebut-table presumptive invalidity where the same Judge does the subsequent sentencing.

In People v Miller (65 NY2d 502, cert denied 474 US 951), we applied the Pearce rule in a somewhat different procedural setting. Defendant was tried, convicted and resentenced following vacatur of the original 4-to-12-year sentence based on a negotiated plea conviction. Defendant had pleaded guilty to rape, first degree, after an unfavorable suppression ruling. The Appellate Division reversed the suppression court’s ruling (76 AD2d 576), and we affirmed on the People’s appeal (54 NY2d 616). Upon remittal for trial, defendant was convicted of rape, first degree, and a sentence of 7 to 21 years was imposed by a Judge different from the first cycle. The subsequent Judge distinguished the case from Pearce on the ground that defendant Miller’s original conviction was based upon a guilty plea, not upon a trial verdict. Claiming the original sentence was therefore a bargain in exchange for relieving the victim from having to testify at public trial, the Trial Judge did not feel bound to the original sentence. The Appellate Division agreed with the trial court (103 AD2d 808) and, on defendant’s appeal, we affirmed (65 NY2d 502, supra). Our analysis started with the Pearce presumption, even though two different sentencing Judges acted and even though the chances of vindictive motivation (in the institutional, not personal, sense) for the higher sentence was "reduced” in such circumstances. We held that the presumption was overcome, however, because the greater sentence resulted from defendant’s' own choice to forego the quid pro quo of the original plea-bargained sentence. In essence, we held that defendant forfeited the benefit of the deal reflected in the initial sentence by electing to go to trial. "Having accepted the exercise of discretion to lower the original sentence in return for a plea in order to protect the victim, the defendant should not be heard to complain that a higher sentence is imposed after conviction following a retrial at which, by requiring that the victim testify, he has removed from consideration the element of discretion involved.” (People v Miller, 65 NY2d, at 509, cert denied 474 US 951, supra.)

The next phase of this issue was encountered by the Supreme Court in the context of whether to apply its Pearce presumption to a second sentence imposed by a different sentencer (Texas v McCullough, 475 US 134). There, a jury imposed the first sentence and the Trial Judge then set aside the conviction itself. On retrial and reconviction, the court imposed a more severe sentence than the jury had originally fixed. The Supreme Court held that because two different sentencers — a jury and later a Trial Judge — assessed the varying sentences, it could not be said that defendant had received a sentence "increase” (id., at 140). Pearce was therefore held entirely inapplicable.

With that precedential evolution, defendant argues to us on this appeal that, as a matter of State and Federal constitutional law, Pearce’s presumption of vindictiveness applies and undoes his sentence. He asserts that the record does not show any cognizable objective factors occurring subsequent to the first sentencing on which the increased sentence could be justified to overcome the presumption. The prosecution responds that McCullough eradicates the Pearce presumption whenever a different Trial Judge imposes the subsequent sentence. Defendant retorts simply that the existence of two different sentencers is merely a factor to be considered in overcoming the legal fiction of official vindictiveness, but is not enough alone to eliminate or rebut the presumption.

Even if McCullough may be read to eliminate the Pearce presumption as a matter of Federal due process where a different Judge imposes the sentence upon reconviction — a matter we need not decide — we hold that the Due Process Clause of the New York State Constitution requires the application of the presumption in this case and ones like it as a procedural safeguard against punitively toughened sentences (again, we emphasize in the institutional, not personal, sense). The threshold from which that analysis proceeds must be a record articulation of some event becoming known or available only after the first sentence and justifying the more severe sentence. That a different Judge imposes the second sentence is but a factor to be weighed with others in assaying whether the presumption has been overcome.

In this case, the sentencing Judge after the retrial did not cite sufficiently objective or cognizable conduct or events which came to light only after the first sentence which would satisfy our test and thus justify the increased sentence. The witnesses and evidence at the second trial were the same as at the first trial. The Trial Justice’s disbelief of the alibi witnesses, who he perceived were "bullied” by defendant, was not a new fact or an intervening event which would justify the increase. The same witnesses had testified in the same manner at the first trial. In any event, this feature was ambigúously or indefinitely articulated on the record. Indeed, the only potentially qualifying new fact to which the court alluded when it imposed the enhanced sentence was that defendant had forced the complainant to "come in twice and relive the trauma”. Though this "fact” is akin to the "event” in Miller, i.e., compelling the victim to publicly relive the attack at trial, it is procedurally distinct. In Miller, the original sentence was the product of a bargain struck in exchange for sparing the victim from the trauma of testifying at all. The defendant in Miller gave up that benefit when he challenged the bargained-for plea on appeal and later withdrew his consideration supporting the bargain by proceeding to trial. In the case now before us, defendant made no agreement and offered no consideration in exchange for the lesser initial sentence. He was found guilty after trial, and upon successful appeal proceeded to another jury trial. That of necessity the victim had to testify again under these circumstances cannot be sufficient to overcome the Pearce presumption, because that common fact would swallow the rule itself if given plenary and undistinguished acceptance and application. Finally, defendant did nothing different in this respect compared to the first trial cycle, except that he successfully pursued his appeal rights. The consequence of the victim having to testify a second time cannot be attributed to defendant in this case, as it was in Miller. Here, it happened because of the errors of the trial court in the first case.

We are satisfied that our State due process provision confers a more protective benefit than the Federal counterpart. This State’s long-standing statutory right to appellate review and to appropriate procedures for review of all sentencings, including enhanced ones, point to our special vigilance (CPL 450.10; see, People v Seaberg, 74 NY2d 1, 7; People v Alvarez, 70 NY2d 375, 379; People v De Jesus, 54 NY2d 447, 449). Prior to McCullough (475 US 134, supra), the courts of this State applied Pearce (395 US 711, supra) where the subsequent sentencing Judge was not the original sentencer (see, e.g., People v Miller, 65 NY2d, supra, at 507-510; People v Best, 127 AD2d 671, 672; People v Best, 112 AD2d 942). Sound policy concerns and fundamental fairness fortify the application of the Pearce presumption even where there is a different second sentencer (People v P. J. Video, 68 NY2d 296, 303). First, the instances where this will happen are few. Second, the harm that would result from the withdrawal of the presumption clearly outweighs the burden on the sentencing process under the simple record explication rule. Third, the presumption will always be rebuttable by articulation that the increased sentence was premised on cognizable and temporally relevant data.

To be sure, the State’s interest in preserving the flexibility and discretion of sentencing courts should not be diluted. We believe it will not be by the rule we propose today; rather, the integrity of the process will be strengthened. Contrariwise, significant injustices could result in not protecting against sentence ratchetings motivated by official vindictiveness. Thus, we choose not to relax our procedural vigilance, which guarantees the opportunity for adequate review of sentencings in appellate courts, especially by the intermediate appellate courts.

Our analysis reflects concern, too, born of the threat that tougher sentences upon reconviction after a successful appeal might cause defendants or their counsels to hesitate or forebear from the exercise of the important statutory right to appellate review in this State. Indecision or unwise decisions in such cases may be spurred, whether the same Judge or a different Judge actually imposes the subsequent sentence, since at the time the critical choice is made no one can reasonably know or predict if a different Judge will be on the Bench to impose a subsequent sentence on a retrial and second conviction.

Accordingly, the order, insofar as appealed from, should be reversed and the case remitted to Supreme Court for resentencing in accordance with this opinion.

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

Order, insofar as appealed from, reversed and case remitted to Supreme Court, Richmond County, for further proceedings in accordance with the opinion herein.


author: Per Curiam.

text:
    In the Matter of Tap Electrical Contracting Service, Inc., Appellant-Respondent, v Thomas F. Hartnett, as Commissioner of Labor of the State of New York, Respondent-Appellant.
    Argued May 2,1990;
    decided June 5, 1990

      POINTS OF COUNSEL

      Arnold I. Burns, Randy L. Levine, M. David Zurndorfer, Carole O’Blenes and Neil H. Abramson for appellant-respondent.

      Robert Abrams, Attorney-General (Jennifer S. Brand, Jane Lauer Barker and M. Patricia Smith of counsel), for respondent-appellant.

      Sanford E. Pollack and Edward Quinlan for Local 363 Benefits Funds and Building Industry Fund, amicus curiae.

      K. Richard Marcus, Steven I. Levin and Lorraine D’Angelo for The Joint Industry Board of the Electrical Industry, amicus curiae.

   OPINION OF THE COURT

Per Curiam.

The only argument preserved for our review in these cross-appeals is whether the holding in Matter of Monarch Elec. Contr. Corp. v Roberts (70 NY2d 91) applies to construction projects jointly funded by the State and Federal governments under the Federal-Aid Highway Act (23 USC § 101 et seq. [FAHA]).

In Monarch we reviewed the history and interpretation of Labor Law § 220 and held that it requires the classification of all employees on State-funded public work projects as either journeymen or apprentices and that to qualify as an apprentice under the statute an employee must be individually registered in a skills training program approved by the State Department of Labor. Trainees registered in programs of the United States Department of Labor may not be substituted by contractors and paid wages less than journey-level workers (Labor Law § 220 [3-e]).

The Commissioner’s ruling in this case was consistent with that decision but the Appellate Division annulled it because this project was jointly funded under the FAHA. We conclude, however, that Labor Law § 220, as interpreted in Monarch, applies not only to State-funded projects but also to jointly funded projects and is not preempted by Federal law.

Section 220 unambiguously authorizes only two categories of employees, journeymen and apprentices. The statute makes no provision for a third category and nothing can be read into it to authorize employment of United States Department of Labor trainees on Federally funded projects. Nor can our decision in Monarch be construed to authorize the use of Federal trainees because it was not premised on funding. The source of moneys paid for the improvement affected neither the classification of employees, the corresponding wages required, nor any other policy identified by the statute or its legislative history.

Petitioner also contends that the statute is preempted by the Federal regulations on the subject since it conflicts with 23 CFR 230.107 (b) to such a degree that it stands as an obstacle to the accomplishment of the full purposes and objectives of the statute (see, Hillsborough County v Automated Med. Labs., 471 US 707, 712-714). However, courts are reluctant to infer preemption from the comprehensive nature of Federal regulations in the absence of an express indication by Congress of an intent to do so (see, Hillsborough County v Automated Med. Labs., supra, at 717-718). This is particularly true as pertains to a regulation that does not specifically address the issue (see, Siuslaw Concrete Constr. Co. v State of Washington, Dept. of Transp., 784 F2d 952, 957 [9th Cir 1986]). Petitioner, noting the policy of FAHA is to "fully utilize” all available training and skill improvement opportunities for women and minority workers (23 CFR 230.107 [b]), contends that this policy is frustrated if the State may prevent contractors from using Federally trained employees. We disagree and find that petitioner’s interpretation of the "full utilization” policy is inconsistent with the statutory scheme.

Neither the statute nor its implementing regulations require States to use trainees enrolled in programs administered by the United States Department of Labor. Indeed, 23 USC § 114 (a) provides that "construction work and labor in each State shall be performed under the direct supervision of the State highway department and in accordance with the law of that State and applicable Federal laws” (emphasis added). The regulations provide that States are permitted to establish trainee programs, determine which Federal subsidized construction contracts shall include trainees and fix the number of trainees used on any particular project (23 CFR 230.111 [a]). The regulations also set forth criteria States shall consider when selecting trainee programs (23 CFR 230.111 [d]) and the Federal agency monitors projects to ensure that States comply with the FAHA affirmative action training goals and policies (23 CFR 230.111 [b]). Apart from these limitations, States have broad latitude to select from alternative trainee programs as long as they conform with the prevailing goals and restrictions set by the Commissioner (see, 23 CFR 230.111; Siuslaw Concrete Constr. Co. v State of Washington, Dept. of Transp., supra [rejecting arguments that 23 CFR 230.111 (d) and (e) (1) limit the State agency’s approval authority with respect to trainee programs]). Thus, the "full utilization” policy declaration (23 CFR 230.107 [b]) neither mandates that States use Federally trained workers nor constitutes a limitation upon the range of programs a State uses provided the State achieves its affirmative action training goal.

Petitioner also asserts that section 220 conflicts with the prevailing wage rate requirements of the Davis-Bacon Act (Act) (40 USC § 276a). Specifically, it claims that section 220 interferes with the FAHA’s exemption for Federal trainees from the requirements of the Act (23 USC § 113 [c]). That Act was intended to benefit employees by prescribing a minimum rate of wages on Government-subsidized projects (see generally, United States v Binghamton Constr. Co., 347 US 171). It does not prohibit States from providing mínimums on Federally funded projects that exceed the minimum wage prescribed by Federal law (see, Siuslaw Concrete Constr. Co. v State of Washington, Dept. of Transp., supra; see also, Matter of Green Is. Constr. Co. v Roberts, 139 AD2d 907, 908). In any event, section 220 does not interfere with or obstruct the requirements of the Davis-Bacon Act or the FAHA exemption for trainees from that Act because it does not purport to raise the minimum wage paid to Federal trainees. It merely requires that State-registered trainees be hired instead of Federal trainees, thus determining that for State-subsidized projects New York’s participation in FAHA and its skills training obligations will be fulfilled by use of trainees registered under New York law. Petitioner was required to pay the three workers registered in Federal training programs journey-level wages because under section 220 they are not recognized as training level workers. Furthermore, it is irrelevant that section 220 may dissuade contractors from hiring Federal trainees on Federally funded projects, as petitioner contends, because contractors are not even permitted to use these workers in a trainee capacity under statute.

Accordingly, section 220 is not in conflict with or preempted by Federal law.

Finally, there «is substantial evidence in the record to support the Commissioner’s determination that petitioner willfully violated section 220 because it adhered to its own policy of hiring Federal trainees paid less than journey-level wages after it was expressly notified that it was not conforming to the Department’s policy (see, Matter of Hull-Hazard, Inc. v Roberts, 74 NY2d 710; Matter of Roze Assocs. v Department of Labor, 143 AD2d 510).

Accordingly, the order of the Appellate Division should be modified, with costs to respondent-appellant Commissioner, by reinstating the determination of the Commissioner of Labor insofar as it concluded that petitioner willfully violated Labor Law article 8 by underpaying prevailing wages and supplements to the three individuals it classified as "trainees”, and, as so modified, affirmed.

Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion; Judge Kaye taking no part.

Order modified, with costs to respondent-appellant Commissioner of Labor, in accordance with the opinion herein and, as so modified, affirmed.


text:
    Paul Brown et al., Respondents, v Two Exchange Plaza Partners, Defendant, and George A. Fuller Company, Defendant and Third-Party Plaintiff-Respondent. Heydt Contracting Corp. et al., Third-Party Defendants-Respondents; A & M Wallboard Company, Third-Party Defendant-Appellant; Heydt Contracting Corporation, Fourth-Party Plaintiff-Respondent; Walter F. Umla, Inc., et al., Fourth-Party Defendants-Respondents.
    Argued April 25, 1990;
    decided June 7, 1990

      POINTS OF COUNSEL

      Anthony J. McNulty and Dudley M. Thompson for third-party defendant-appellant.

      Ignatius John Melito and S. Dwight Stephens for defendant and third-party plaintiff-respondent.

      Joseph D. Ahearn and Joseph W. Conklin for Central Furring & Dry Wall Company, third-party defendant-respondent.

      Theodore H. Rosenblatt for Heydt Contracting Corp., third-party defendant-respondent and fourth-party plaintiff-respondent.
   OPINION OF THE COURT

Simons, J.

The general contractor in this building construction case has been held liable to a worker injured in the performance of a subcontractor’s work solely by reason of Labor Law § 240 (1). The subcontractor had agreed to indemnify the contractor for such liability and the issue submitted is whether General Obligations Law § 5-322.1 bars enforcement of that provision in their contract. We hold that the indemnification agreement is enforceable under these circumstances, in which there has been no finding of negligence on the part of the general contractor, and therefore affirm the order of the Appellate Division.

I

Plaintiff Paul Brown was an employee of Central Furring & Dry Wall Company, a subcontractor working on the lobby/ atrium of an office building under construction in Manhattan. He was injured when the scaffold on which he was standing collapsed. The building was owned by defendant Two Exchange Plaza Partners who hired defendant George A. Fuller Company as general contractor. Fuller in turn subcontracted with Heydt Contracting Corporation for erection of the scaffold, to be used by all of the subcontractors in the lobby/ atrium, and with A & M Wallboard Company to erect the walls and ceilings of the building. A & M hired plaintiff’s employer to install the suspension system for the ceiling. The present dispute concerns the indemnity clause in the contract between Fuller and A & M.

Plaintiffs commenced this action against Fuller and Two Exchange Plaza Partners seeking to recover for Brown’s injuries and his wife’s derivative damages. Fuller impleaded Heydt, A & M and Central Furring and those third-party defendants asserted cross claims against each other and counterclaims against Fuller and Two Exchange Plaza. The evidence at trial failed to establish why the scaffold collapsed. Nonetheless, at the close of the evidence, the court directed a verdict against Fuller based on Labor Law § 240 (1) and submitted the question of damages to the jury.

Fuller then moved for a directed verdict on its third-party claims against Heydt, A & M and Central Furring contending that each was liable to it as a statutory agent under Labor Law § 240 (1), that each was negligent and thus liable to it for contribution, and that Heydt and A & M were liable to it under indemnification clauses in their subcontracts. The trial court ruled that none of the third-party defendants were Fuller’s statutory agents and dismissed those claims. It dismissed Fuller’s claims for contribution against A & M and Central Furring, holding that there was no evidence of negligence on their part to submit to the jury. It submitted the question of Heydt’s negligence for the jury and reserved decision on Fuller’s claim for indemnification from A & M and Heydt.

In submitting the question of Heydt’s negligence to the jury, the court denied Heydt’s request to charge the jury that fault could be apportioned between Fuller and Heydt and instructed it to render an "all or nothing” verdict. The jury returned a verdict against Fuller in the amount of $2,350,000 for plaintiff and $500,000 for his wife. It found that Heydt was not negligent and, therefore, not liable to Fuller. The court then took under advisement the question previously reserved, Fuller’s right to judgment against A & M and Heydt based on the contractual indemnity provisions in their respective contracts, and directed the parties to prepare written submissions. It subsequently denied the motion, holding Fuller’s application untimely, but stated its belief that indemnity was not available unless the subcontractor was "in some way negligent” and that in any event the clause was unenforceable under General Obligations Law § 5-322.1 because Fuller was liable under Labor Law § 240 (1).

Only Fuller appealed. The Appellate Division found the motion for indemnification timely and modified Supreme Court by awarding Fuller judgment over against A & M. The court reasoned that A & M’s contractual indemnification liability encompassed the situation here, where Fuller was sued by an employee of A & M’s subcontractor for injuries suffered while performing A & M’s work. It held further that General Obligations Law § 5-322.1 did not preclude enforcement of the indemnification clause even though A & M was not negligent and Fuller was liable under Labor Law § 240 (1). The court affirmed the remainder of Supreme Court’s judgment, rejecting Fuller’s claim for indemnification from Heydt and A & M’s claims that it was entitled to indemnification from Central Furring and that there should be a new trial on damages. We now affirm.

II

The indemnification clause in the contract between Fuller and A & M is written in broad terms. In it, A & M agreed to assume liability incurred by Fuller for personal injuries "or any other claim arising out of, in connection with or as a consequence of the performance of the Work and/or any acts or omission of the Subcontractor or any of its * * * subcontractors” (emphasis added). Thus, A & M was to indemnify Fuller in either of two situations: (1) where a claim arose out of, in connection with or as a consequence of the performance of A & M’s work (see, O’Connor v Serge Elevator Co., 58 NY2d 655, 657) or (2) where a claim arose out of the "acts or omission[s]” of A & M. Manifestly, the purpose of the clause was to broaden A & M’s liability under common-law rules of implied indemnity (cf., Mas v Two Bridges Assocs., 75 NY2d 680; Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 567-568). It provides for indemnification when the claim arises out of the subcontractor’s work even though the subcontractor has not been negligent. By its terms the clause applies in this case in which plaintiff, an employee of the subcontractor hired by A & M, was injured while performing work called for in A & M’s contract with Fuller. Therefore, although there is no evidence of negligence on A & M’s part, the indemnification agreement requires A & M to indemnify Fuller (see, Walsh v Morse Diesel, 143 AD2d 653, 654-655).

m

A & M contends, nonetheless, that the indemnification clause is unenforceable because of the provisions of General Obligations Law § 5-322.1. That section declares void agreements purporting to indemnify contractors against liability for injuries "contributed to, caused by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in whole or in part”. A & M argues that Fuller’s liability under Labor Law § 240 (1) is, for purposes of General Obligations Law § 5-322.1, the legal equivalent of a finding of negligence and bars indemnification here. We disagree.

The legislative purpose underlying Labor Law § 240 (1) was to place " ' "ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor” ’ ” (Bland v Manocherian, 66 NY2d 452, 459, quoting 1969 NY Legis Ann, at 407) instead of on workers, who "are scarcely in a position to protect themselves from accident.” (Koenig v Patrick Constr. Corp., 298 NY 313, 318.) To that end, the Legislature determined that owners or contractors shall be liable for failing to provide or erect safety devices necessary to give proper protection to a worker who sustains injuries proximately caused by that failure. Liability is not predicated on fault: it is imputed to the owner or contractor by statute and attaches irrespective of whether due care was exercised and without reference to principles of negligence (Zimmer v Che-mung County Performing Arts, 65 NY2d 513, 521-522; Crawford v Leimzider, 100 AD2d 568, 569). A violation of the statute is not the equivalent of negligence and does not give rise to an inference of negligence.

During trial Heydt, A & M and Central Furring had the opportunity, and every incentive, to defend themselves against Fuller’s claims by presenting evidence of Fuller’s negligence. They failed to establish a jury question on that issue, however, and the cause of the accident was not resolved. Liability was imposed on Fuller only because of the absolute liability provisions of Labor Law § 240 (1). Without a finding of negligence on the part of Fuller, General Obligations Law § 5-322.1’s prohibition against indemnifying a contractor for its own negligence is inapplicable (see, Walsh v Morse Diesel, 143 AD2d 653, 655, supra) and Fuller is entitled to judgment over against A & M under the terms of their agreement.

The result is consistent with the purpose and history of General Obligations Law § 5-322.1 and our prior holdings. The section was enacted in 1975 to prevent a practice prevalent in the construction industry of requiring contractors and subcontractors to assume liability by contract for the negligence of others. The Legislature believed that such "coercive” bidding requirements restricted the number of contractors able to obtain or afford the necessary hold harmless insurance and that it unfairly imposed liability on a contractor or subcontractor for the fault of others over whom it had no control. Moreover, such insurance raised the costs of construction unnecessarily, since the cost of the insurance was added to the bid price, and it also resulted in double coverage in many cases by requiring both hold harmless insurance and protective liability insurance (see, Mem of Assemblyman Brown, 1975 NY Legis Ann, at 311; and cf., Kinney v Lisk Co., 76 NY2d 215 [decided herewith]).

As originally enacted, the statute provided that any agreement in a construction contract "purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee * * * is against public policy and is void and unenforceable” (emphasis added). In Quevedo v City of New York (56 NY2d 150, 153), we held that since the statute spoke in terms of "sole negligence”, indemnification clauses in construction contracts were invalid only to the extent they purported to indemnify a party for damages it alone had caused. Nothing prevented indemnification in cases of joint fault (56 NY2d, at 156; see also, County of Onondaga v Penetryn Sys., 84 AD2d 934, 935, affd 56 NY2d 726).

In 1981 the Legislature amended section 5-322.1 to prohibit indemnity agreements in which owners or contractors sought to pass along the risks for their own negligent actions to other contractors or subcontractors, even if the accident was caused only in part by the owner’s or contractor’s negligence (see, Mem of Assemblyman Goldstein in support of proposed amendment, 1981 NY Legis Ann, at 502). Thus, the 1981 amendment eliminated the "sole negligence” language and substituted a prohibition on agreements to indemnify for injuries "caused by * * * negligence of the promisee * * * whether such negligence be in whole or in part” (General Obligations Law § 5-322.1).

Because there was no evidence of any fault on the part of Fuller in this case, neither the wording nor intent of the statute is violated by allowing it to allocate responsibility for this unexplained accident through an indemnification provision. Nor will the decision here encourage carelessness by contractors, as A & M implies, because a contractor who is guilty of negligence will be barred from recovering contractual indemnity by virtue of the General Obligations Law provision.

IV

A & M argues further that if it is held liable to Fuller for indemnification, Central Furring should be held answerable to it under the indemnification clause in their subcontract. We agree with the Appellate Division’s determination that the clause does not apply under these facts. Since there is no evidence of actual negligence on the part of Central Furring, as required under the indemnification agreement between the parties, the clause does not apply.

We have considered A & M’s remaining arguments and conclude they are without merit.

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

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.

      . The action against Two Exchange Plaza Partners was discontinued prior to trial.

      . Fuller eventually settled the plaintiffs’ claims for $1,243,855.66 without the concurrence of the third-party defendants.

      . The clause in its entirety provides: "Subcontractor hereby agrees, to the extent permitted by law, to assume the entire responsibility and liability for and defense of and to pay and indemnify the Owner and Contractor against any loss, cost, expense, liability or damage and will hold each of them harmless from and pay any loss, cost, expense, liability or damage (including, without limitation, judgments, attorney’s fees, court costs and the cost of appellate proceedings), which the Owner or Contractor incurs because of injury to or death of any person or on account of damage to property, including loss of use thereof, or any other claim arising out of, in connection with, or as a consequence of the performance of the Work and/or any acts or omission of the Subcontractor or any of its officers, directors, employees, agents, subcontractors or anyone directly or indirectly employed by Subcontractor for whom it may be liable as it relates to the scope of this Contract, whether such injuries to person or damage to property are due to any negligence of the Owner, the Contractor, its or their employees or agents or any other person. Subcontractor will purchase and maintain such insurance as will protect it including contractual coverage” (emphasis added).

      . General Obligations Law § 5-322.1 provides in relevant part: "A covenant, promise, agreement or understanding in, or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of a building * * * purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property contributed to, caused by or resulting from the negligence of the promisee, his agents or employees, or indemnitee, whether such negligence be in whole or in part, is against public policy and is void and unenforceable”.

      . A & M claims a new trial is required to decide Fuller’s negligence but we agree with the Appellate Division that to the extent General Obligations Law § 5-322.1 calls Fuller’s negligence into issue, a new trial is not needed to resolve it because Fuller’s negligence was litigated fully and the accident remains unexplained.


author: Kaye, J.

text:
    In the Matter of Henry S. King, Jr., et al., Appellants, v Nita J. Chmielewski, as Town Clerk of the Town of Coeymans, et al., Respondents.
    Argued May 2,1990;
    decided June 12, 1990

      POINTS OF COUNSEL

      Paul M. Whitaker and Deborah L. Hardick for appellants.

      David J. Wukitsch for respondents.
   OPINION OF THE COURT

Kaye, J.

This appeal, in an article 78 proceeding challenging a Town Planning Board’s (the Board) denial of a subdivision application, turns on the timing of both petitioners’ application and the Board’s action. Petitioners urge, particularly, that the Board’s failure to act for 45 days entitled them to approval by default under Town Law § 276 (4). We conclude that the Appellate Division order should be affirmed because the petition was time barred in part and lacks merit as to the balance.

The significant events all transpired between September and December 1987. Petitioners, owners of a 6.62-acre parcel of land in the Town of Coeymans, on September 2, 1987, submitted an application to the Board to subdivide their parcel into four residential building plots. At a September 16 special meeting called to consider the application, several Board members and town residents expressed concern over purported restrictions in petitioners’ deed, their proposed septic system and provisions for drainage, and the size of the lots. Petitioners were notified, at this meeting, that because the parcel abutted a county highway, the application had to be submitted to the County Planning Board (see, General Municipal Law § 239-n). The next day — September 17 — the Board sent on petitioners’ application to the County Planning Board.

The Town Board on October 21, 1987 received the County Board’s recommended objection to petitioners’ application, and on November 4, 1987 voted to deny their application. Minutes of that meeting were delivered to the Board’s office the next day, and by letter dated November 6, petitioners were notified of the decision. Meanwhile, on November 4, petitioners had applied to the Town Clerk for approval of their application by default, due to the Board’s failure to act within 45 days of the September 16 hearing (Town Law § 276 [4]), and the Town Clerk denied that request.

Petitioners on December 16, 1987 commenced the present article 78 proceeding to annul the Board’s determination, or compel the Town Clerk to issue a certificate of approval by default, or declare that the town’s subdivision regulations were invalid. Supreme Court dismissed the entire petition as untimely and the Appellate Division affirmed. The Appellate Division agreed that the proceeding against the Board, having been commenced more than 30 days after delivery of the minutes to the Board’s office, was time barred, but it held that the 30-day limitation was inapplicable to the Town Clerk’s denial of petitioners’ request for approval by default. As to that portion of the petition, the Appellate Division held that the Town Clerk was not required to issue a default certification because the 45-day period set forth in Town Law § 276 (4) had been tolled.

Timeliness of Proceedings Against The Board

As against the Board, the petition was correctly dismissed as untimely under Town Law § 282.

A party aggrieved by a decision of a planning board "concerning such plat or the changing of the zoning regulations of such land, or any officer, department, board or bureau of the town, may have the decision reviewed by a special term of the supreme court in the manner provided by article seventy-eight of the civil practice law and rules provided the proceeding is commenced within thirty days after the filing of the decision in the office of the hoard. ” (Town Law § 282 [emphasis added].) As the statute plainly specifies, the event that triggers the 30-day limitations period is the filing of a planning board’s decision in its office and not — as petitioners urge — notice sent to the affected party (see, Pagliaroli v Zoning Bd. of Appeals, 66 AD2d 997, 998; 2 Anderson, New York Zoning Law and Practice § 26.14, at 384 [3d ed]). The statute places on the petitioners — and not the planning boards — responsibility for following up on their application by determining when a board’s decision has been filed in its office.

Here, the record reveals that on November 5, 1987 the relevant minutes reflecting the decision denying petitioners’ application were filed in the Board’s office, which triggered the 30-day limitations period. In that petitioners commenced this proceeding against the Board on December 16, 1987 — beyond the 30-day period — that portion of the petition was properly dismissed.

Timeliness of Proceedings Against The Town Clerk

Town Law § 282 does not, however, affect the petition against the Town Clerk. While respondents urge that the 30-day period should apply also to a Town Clerk’s decision, relying on the statute’s reference to "any officer, department, board or bureau of the town,” that reference — as the Appellate Division correctly observed — "merely confers standing on the enumerated persons or entities to challenge a Town Planning Board decision. * * * Notably, Town Boards may authorize, by ordinance, the 'proper local authorities’ (Town Law §268 [2]) to pursue judicial enforcement of the local zoning provisions, where necessary. Accordingly, petitioners’ challenge to the Town Clerk’s refusal to issue a default certificate is not governed by the time constraints delineated in Town Law § 282, but by CPLR 217, which imposes a four-month limitation period. By this standard, the proceeding against the Town Clerk was timely commenced.” (146 AD2d, at 105.)

Petitioners’ claim on its merits is grounded on Town Law § 276 (4). That section in substance requires a Town Planning Board to rule on an application for final subdivision approval within 45 days after a public hearing, which itself must be held within 45 days of submission of a plat in final form. If a Town Planning Board fails to act within the specified time, the plat is deemed approved and a certificate to that effect must be issued by the Town Clerk on demand (Town Law § 276 [4]). Here, the Board held its hearing on September 16, 1987 and, by petitioners’ count, the 45-day statutory period expired no later than November 2, 1987, entitling them to approval by default.

We reject petitioner’s argument, as did the Appellate Division, but on somewhat different grounds.

The Appellate Division reasoned that the 45-day period was "tolled” pending County Planning Board review because section 276 (4) "speaks to a plat submitted in final form,” and petitioners’ "application was not finalized until the Town Planning Board actually received the written recommendation of the County Planning Board on October 21, 1987.” (146 AD2d, at 106.) As a rule, however, time limitations created by statute are not tolled in the absence of statutory authority. Courts may only "construe provisions made by the Legislature creating exceptions or interruptions to the running of the time limited by statute. * * * They may not themselves create such exceptions.” (Mack v Mendels, 249 NY 356, 359.) Here, except where the parties agree, there is no statutory authority for tolling, or suspending, the 45-day period; to the contrary, there is a legislative mandate for speedy administrative action. A board’s failure to act within the tightly prescribed time limits itself results in approval by operation of law (see, Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367, 369, affd on opn below 62 NY2d 965). Thus, we cannot agree that the statutory period was "tolled” during the County Planning Board review.

Nor is the issue resolved by the statutory requirement of "submission of a plat in final form.” (Town Law § 276 [4].) That reference distinguishes situations where an applicant seeks final approval of the proposed subdivision by submitting a "final plat” or a "plat in final form” (see, Town Law § 276 [2] [b], [c]; [4]) from those where an applicant submits a "preliminary plat” for tentative approval (Town Law § 276 [2] [a], [c]; [3]). In cases that fall into the former category — as here — the application for final approval must be acted upon by the Town Board within the prescribed time limits whether or not the plat is actually in final form (Matter of Castle Estates v Hubbard, 52 Misc 2d 774, 777-778 [Simons, J.]). While the failure to satisfy the statutory definition of "final plat” might, in an appropriate case, warrant a denial of the application, it does not justify a failure to act (see, Matter of Wallkill Manor v Coulter, 33 NY2d 783; Wallberg v Planning Bd., 115 AD2d 539).

Nevertheless, we agree with the Appellate Division’s conclusion that there was no approval by default. We reach that conclusion because, here, the statutory period did not start with the submission of petitioners’ application to the Board. General Municipal Law § 239-n explicitly required the Board to refer the application to the County Planning Board for its review, and the Board was powerless to act on the application until it received the County Board’s recommendation or until 30 days had expired with no response (see, 2 Anderson, op. cit., § 19.09, at 32-34). Where the Legislature specifically, and strictly, allotted 45 days for Town Planning Board action, it would be inconsistent with the legislative design to start that time running when the Board was without authority to proceed on the application for as much as 30 days (see generally, Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 62 NY2d 965, supra).

Thus, the 45-day period did not commence to run until October 21, 1987, when the Board received the County Planning Board’s recommendation. Measured from that date, the November 4 denial was well within the statutory period, and petitioners’ demand for a default certification was therefore properly rejected.

Petitioners’ remaining claims are without merit.

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

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

Order affirmed, with costs.