text:
    In the Matter of E.F.S. Ventures Corp., Appellant, v Debra Foster et al., Constituting the Planning Board of the Town of East Hampton, Respondents. (Proceeding No. 1.) In the Matter of E.F.S. Ventures Corp., Appellant, v Joseph DeCristofaro, as Building Inspector of the Town of East Hampton, Respondent. (Proceeding No. 2.)
    Argued January 11, 1988;
    decided February 9, 1988

      POINTS OF COUNSEL

      Edward N. Costikyan, Samuel J. Silverman, Bruce Birenboim and Cary B. Samowitz for appellant.
    I. The Planning Board is estopped from imposing a new set of conditions on the existence of the already completed Beachcomber. (Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88; Bender v New York City Health & Hosps. Corp., 38 NY2d 662; La Porto v Village of Philmont, 39 NY2d 7; Landmark Colony v Board of Supervisors, 113 AD2d 741; Scruggs-Leftwich v Rivercross Tenants’ Corp., 119 AD2d 88; Matter of 1555 Boston Rd. Corp. v Finance Adm’r, 61 AD2d 187; Eden v Board of Trustees, 49 AD2d 277; Brennan v New York City Hous. Auth., 72 AD2d 410; City of Rochester v United States Postal Serv., 541 F2d 967; Meister Bros. v Macy, 674 F2d 1174.) II. SEQRA does not authorize the Planning Board to require the destruction of already completed buildings and roads or to impose new conditions on their use. (Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367, 62 NY2d 965; Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215.) III. The Planning Board’s requirement that already completed buildings be demolished and roads be destroyed, in light of the practical alternatives proposed by E.F.S., was arbitrary and capricious and an abuse of discretion as a matter of law. (Golden v Metropolitan Transp. Auth., 126 AD2d 128). IV. In any event, permanent certificates of occupancy should issue for the 64 Beachcomber units built pursuant to the September 1982 and prior Planning Board resolutions.

      Richard E. DePetris for respondents.
    I. Where a building is constructed during the pendency of an article 78 proceeding which results in a judgment annulling the approval as being in violation of SEQRA, the Planning Board is not estopped from imposing a new condition which would mitigate a significant adverse public safety impact. (Matter of Jayne Estates v Raynor, 22 NY2d 417; Reichenbach v Windward at Southampton, 80 Misc 2d 1031, 48 AD2d 909, 38 NY2d 912; Matter of Albert v Board of Stds. & Appeals, 89 AD2d 960; Matter of

      Rosbar Co. v Board of Appeals, 53 NY2d 623; Matter of Perrotta v City of New York, 66 NY2d 859; Matter of Lincoln Ave. Assocs. v Town of Islip, 96 AD2d 946; Morley v Arricale, 66 NY2d 665; Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88.) II. Where a proposed amended site plan would enlarge a development which was previously approved without any environmental review, the Planning Board is authorized to impose conditions on approval of the enlargement which would mitigate significant adverse public safety impacts relating to the entire development. (Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215; Matter of Alpert v Town of Carmel Zoning Bd. of Appeals, 89 AD2d 853; Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449; Matter of Cowan v Kern, 41 NY2d 591; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359; Glen Head— Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484.) III. The Planning Board determination is not arbitrary and capricious. (Matter of Coates v Planning Bd., 58 NY2d 800; Matter of Ozols v Henley, 81 AD2d 670, 54 NY2d 1023; Matter of Oakwood Co. v Planning Bd., 89 AD2d 606; Matter of Cowan v Kern, 41 NY2d 591; Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449; Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Coalition Against Lincoln W. v City of New York, 94 AD2d 483, 60 NY2d 805, 61 NY2d 670.) IV. Where property is not in conformity with any site plan approval, petitioner is not entitled to a permanent certificate of occupancy.
   OPINION OF THE COURT

Simons, J.

Petitioner, a developer of an oceanside resort in East Hampton, Long Island, challenges the power of respondents, local Town officials, to reexamine its project and impose substantial new conditions on its development after construction had been completed. The construction had proceeded in two phases and the site plans for both had been approved by the Town Planning Board. The resolution approving the second, or modified, site plan, was successfully attacked in court because of the failure of the Planning Board to follow the requirements of the State Environmental Quality Review Act (SEQRA), however, and petitioner was ordered to submit a new modified site plan application. When it did, there had been a political change in the leadership of the Town and of the membership of its Planning Board. The newly appointed Planning Board reeexamined petitioner’s entire development de novo, although challenge of the first phase was time barred, and substantially changed the requirements for developing and using the improvements authorized in the first site plan. Petitioner contends that the local officials should be equitably estopped from reexamining the site plans as initially approved and that certificates of occupancy for all of the motel units should be issued. It further contends that even if respondents had the power to reexamine the entire development upon the required resubmission of the modified site plan, that power was exercised in an arbitrary and capricious manner in this case.

We agree with respondent officials that they are not estopped from reviewing the entire development even though construction according to the originally approved plans had been completed prior to the determination that SEQRA had been violated. The exercise of that power under the circumstances presented was arbitrary and capricious, however, because respondents in reviewing the application for modification, which proposed improvements largely unrelated to the completed portion of the development, required changes in the completed development solely to accommodate perceived deficiencies in it that had been previously reviewed and approved and which were protected from further challenge by the Statute of Limitations.

I

The appeal arises from the following facts and is more easily understood by referring to a map of the site annexed to the opinion.

In August 1982, petitioner, E.F.S. Ventures Corporation, obtained title to a 5.2-acre tract of land zoned for motel development and located along Old Montauk Highway in the Town of East Hampton. At the time petitioner acquired the property, known as the Beachcomber, it had been improved by a 12-unit motel building, a collection of 6 cottages containing 11 motel units, a storage shed and another building known as Hill House. Prior to petitioner’s acquisition, as early as 1977, the Town Planning Board had approved several applications for further development by previous owners, but no action pursuant to these approvals had been taken. Petitioner made its first of two applications to develop the property in early September 1982. The 1982 site plan dealt primarily with construction on the rear or northern half of the property. Petitioner sought to remove the metal storage building, renovate the existing 12-unit motel building, relocate and renovate Hill House, and construct two new motel buildings. It proposed a new 30-unit building known as Ocean East on the east side of the property facing Old Montauk Highway and the Atlantic Ocean and a similar 20-unit building, Ocean West, on the west side. The six existing cottages on the front of the property were to remain. No environmental assessment form (EAF) accompanied petitioner’s site plan application, apparently because petitioner concluded that SEQRA was not applicable to this project. On September 29, 1982, the East Hampton Planning Board approved the site plan application subject to several conditions. For example, petitioner was required to grant the Town a 50-foot scenic easement surrounding a .1-acre pond found in the northeast corner of the property, relocate Hill House at least 75 feet from the pond, set back all septic systems and leaching pools a minimum of 100 feet from the pond, and take certain measures to control the storm water run off. A new roadway to provide motor vehicle access to Old Montauk Highway and roadways and walkways within the site were approved. Building permits were issued in November 1982, construction began immediately and by January 1983 the proposed construction had been substantially completed.

Accordingly, petitioner submitted a second application in late January 1983 seeking to modify the original site plan. The modifications concerned only the area in the front of the property and included removal of the six cottages containing the 11 motel units, construction of a new 28-unit motel structure along Old Montauk Highway, to be known as Oceanside, and construction of a swimming pool and tennis courts in the center of the property between Oceanside and the Ocean East and Ocean West buildings.

On February 18, 1983, the Town Planning Board, based on a recommendation of its own consultant, informed petitioner by letter that the Board had made an informal negative declaration under SEQRA. Following this informal negative declaration, on March 12, 1983, petitioner prepared and filed an EAF. The Planning Board’s consultant promptly prepared part two of the EAF. On March 16, 1983, the Planning Board after-reviewing the EAF, determined that the proposed modification of the Beachcomber complex would result in an over-all small to moderate impact on the environment and that any adverse environmental impact could be mitigated by measures outlined in the EAF. The Board then issued a formal negative declaration under SEQRA (thus obviating the need for petitioner to prepare an environmental impact statement) and approved the application for site plan approval. On March 31, building permits were issued for the Oceanside structure and petitioner promptly proceeded with construction in the hope that the resort could open for the summer 1983 season.

On April 14, 1983, adjoining landowners and a group entitled the Concerned Citizens of Montauk commenced an article 78 proceeding against petitioner and the Planning Board (the Nielsen proceeding) in an attempt to prevent implementation of the January 1983 modified site plan. The Nielsen petition alleged that the approval was invalid because the Planning Board had issued its informal negative declaration prior to considering the factors contained in the EAF. Indeed, an EAF had not even been prepared until after the Board’s informal negative declaration had been made. On April 15, 1983, Supreme Court granted a temporary restraining order enjoining further construction.

At this time 90% of the development proposed in the original site plan had been completed. Of particular importance, the Hill House relocation and rehabilitation and Ocean East construction were completed. Additionally, a commitment to construct Oceanside pursuant to the modified site plan approval had been made, the six cottages had been demolished, the site had been excavated and the footings and foundation for Oceanside had been laid and a portion of the first story of the building had been framed.

Petitioner discontinued work until April 20, 1983, when Supreme Court lifted the temporary restraining order and, finding that there was no likelihood of success on the merits, denied the Nielsen petitioners’ request for a preliminary injunction. The Nielsen petitioners did not seek leave to appeal the denial of preliminary injunctive relief and no stay of the vacatur of the temporary restraining order was sought from the Appellate Division pursuant to CPLR 5518. Petitioner recommenced construction and the project was completed in June 1983.

One month later, however, Supreme Court granted the Nielsens’ article 78 petition to the extent of setting aside the resolution of the Planning Board approving the modified site plan. It remitted the matter to the Planning Board and directed it to make its decision on whether to issue a negative or positive declaration under SEQRA after considering the factors found in the EAF and taking a "hard look” at the potential environmental impact. The court also enjoined the issuance of certificates of occupancy for the 64 units constructed or renovated pursuant to the original site plan submitted in September 1982. Petitioner appealed this decision but while its appeal was pending, it resubmitted to the Planning Board, in November 1983, an application for modified site plan approval which included an EAF. This time, however, the Planning Board, now composed of several new members, issued a positive declaration under SEQRA (ECL 8-0109; 6 NYCRR 617.2 [cc]) and ordered preparation of a draft environmental impact statement (6 NYCRR 617.2 [n]). In September 1984, after public hearings and the preparation of a final environmental impact statement (EIS), the Planning Board approved the modified site plan, but did so subject to several conditions found objectionable by petitioner. The most significant of these included: (1) the destruction of relocated Hill House to provide an area behind Ocean East and Ocean West where emergency vehicles could turn around, (2) the destruction of four units on the new Ocean East building, to permit widening of the roadway east of it, and (3) removal of the resort’s newly constructed roadway providing access from Old Montauk Highway and relocation of it to the west side of the site. Relocation of the roadway necessitated a further condition: the destruction of four units in the new Oceanside building to make room for the relocated roadway. These changes were prompted primarily by the Board’s concern over (1) the difficulty fire vehicles might have reaching the rear of the premises and turning around because of the width of the roadway east of Ocean East and the location of Hill House behind Ocean East and Ocean West and (2) the danger to vehicles entering Old Montauk Highway from the resort because a hump in the highway limited sight distance to approximately 250 feet east of the existing roadway entrance. The Board also required other, less drastic, changes revising the previously approved landscaping and drainage plan of the property, imposing new proposals for surveying and buffering the on-site pond and requiring that on-site walkways and roadways be redesigned and relocated.

Petitioner sought to mitigate these conditions without the destruction of existing units and roadways. Among its proposals were a plan to improve the sight distance for eastbound traffic on Old Montauk Highway by reducing the grade of the highway by 18 inches — a project which had been approved by the Town Highway Superintendent and which petitioner agreed to pay for — and a plan to open an adjacent "paper road” known as School Lane, over which petitioner owned an easement. By opening School Lane an alternate access would be provided behind Ocean East and Ocean West for emergency vehicles, thereby removing the need to demolish Hill House or destroy new units in Ocean East. The Town Board rejected petitioner’s proposals concluding that School Lane could not be opened because it was a "wildlife corridor” and that Old Montauk Highway should not be regraded, although concededly it was "the most desirable alternative from an engineering standpoint”, because of the scenic and historic nature of the highway.

Accordingly, petitioner commenced an article 78 proceeding seeking to annul the September 1984 Planning Board resolution which had imposed substantial conditions upon the approval of its resubmitted modified site plan (E.F.S. v Foster). The petition was dismissed on the merits by Supreme Court.

Three months later, the Appellate Division modified Supreme Court’s order in the Nielsen case. It agreed with Supreme Court that the January 1983 modified site plan was improperly approved because the Planning Board’s finding of nonsignificance under SEQRA was made without the Board taking a hard look at the environmental factors listed in the EAF. The court stated, however, that the Nielsen petitioners were foreclosed from injunctive relief preventing the issuance of certificates of occupancy on the 64 units previously approved and constructed because "the four-month Statute of Limitations precludes the granting of relief concerning construction commenced and/or completed pursuant to the September 1982 * * * resolution (see, CPLR 217)” (Matter of Nielsen v Planning Bd., 110 AD2d 767, 769). Petitioner, relying on the court’s statement concerning the Statute of Limitations, sought certificates of occupancy for the portion of the development authorized in September 1982 and when the Building Inspector refused to issue them, it commenced a second article 78 proceeding to compel him to do so (E.F.S. v DeCristofaro). This second proceeding was dismissed by Supreme Court on the merits and appealed by petitioner and consolidated with the appeal taken in E.F.S. v Foster which sought to annul the modified site plan approved by the new Board in September 1984.

In a Per Curiam opinion, the Second Department affirmed the judgments dismissing the petitions in both the Foster and DeCristofaro proceedings. The court rejected petitioner’s claim that the Planning Board should be equitably estopped from imposing conditions on the modified site plan, ruled that the Board was entitled to conduct a de novo review of the entire Beachcomber development when the modified site plan was submitted and held that the conditions imposed by the Board were not arbitrary and capricious. Justice Rubin dissented. He voted to grant the petitions, annul the September 1984 approval and prohibit the Board from conditioning site plan approval of the Oceanside modification on destruction of existing units or relocation of existing roads and to otherwise remit the matter to the Planning Board for further proceedings. The appeal is now before us by leave of the Appellate Division.

Preliminarily, petitioner notes that it has owned this property since 1982, that it has invested over $3 million in improving it, that it has at all times sought and received approval from the Town officials and abided by the conditions and requirements imposed upon it by the Town Board and its consultants and that the development, as completed, violates no public health statute, zoning ordinance or minimum safety, fire or traffic requirements. Nevertheless, its property has been forced to remain vacant through five summer seasons and it has never produced a dollar in income. Petitioner estimates its lost profits at $1 million a year and its carrying charges at over $100,000 a month. Moreover, it alleges that to comply with the present "approval” of the Planning Board would require it to demolish 10 new luxury resort units before they are used and to relocate and rebuild newly constructed walkways, roadways, grades and plantings previously developed at the costs of hundreds of thousands of dollars.

II

Petitioner contends first that the Planning Board is es-topped from placing additional conditions on the development of the site. Generally stated, the doctrine of equitable estoppel prevents a party from pleading or proving an otherwise important fact because of something which it has done or omitted to do. If another rightfully relies upon its word or deed and, as a result, changes position to his injury, so that it would be inequitable to permit the party to enforce rights inconsistent therewith, the courts will estop the party from taking the inconsistent position (see generally, Triple Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443; White v La Due & Fitch, 303 NY 122; Lynn v Lynn, 302 NY 193).

Petitioner contends that the elements of estoppel are present in this case because (1) the Town Planning Board acted improperly in issuing the negative declaration under SEQRA when it approved the modified site plan without considering the factors found in the EAF (6 NYCRR 617.11 [a] [1]-[11]), and should have known that petitioner would rely on this action; (2) petitioner did, in fact, rely upon this finding of nonsignificance in deciding to proceed with the construction of the Oceanside development, and (3) petitioner’s change of position based on the Board’s action is clear; obviously it would not have placed at risk all construction completed pursuant to the approved September 1982 site plan by pressing its application for modification of that plan.

Petitioner contends further that its equitable position is unassailable because at the time it commenced construction of the Oceanside structure there was no pending proceeding seeking to enjoin construction and at the time petitioner completed construction a judicial finding had been made, by vacating the temporary restraining order and denying a preliminary injunction, that the Nielsen challenge to the modified site plan approval, the only legal action pending, was unlikely to succeed on the merits. Accordingly, petitioner contends that the Planning Board should be foreclosed from changing its position, making a positive declaration under SEQRA and attaching burdensome conditions on its approval of the site plan.

Notwithstanding petitioner’s position, we have held in several recent decisions that estoppel may not be invoked against a governmental agency to prevent it from discharging its statutory duties (see, Matter of Parkview Assocs. v City of New York, 71 NY2d 274 [decided herewith]; Scruggs-Leftwich v Rivercross Tenants’ Corp., 70 NY2d 849, 852, citing Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436, 449; Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88, 93-94). Although some of those decisions may suggest, as petitioner claims, that exceptions to the general rule may be warranted in "unusual factual situations” to prevent injustice (see, Matter of Hamptons Hosp. & Med. Center v City Civ. Serv. Commn., supra, at 93-94, n 1 [narrowing the breadth of Bender v New York City Health & Hosps. Corp., 38 NY2d 662]; see also, Moore v Mayor, 73 NY 238, 245), we agree with the Appellate Division that this is not a case in which estoppel may be imposed.

Generally, governmental agencies are not subject to the defense of estoppel for two reasons. First, the doctrine is not applied against the government, as a matter of policy, because to do so could easily result in large scale public fraud. As stated long ago by the United States Supreme Court, "It is better that an individual should now and then suffer by [governmental] mistakes, than to introduce a rule against an abuse, of which, by improper collusions, it would be very difficult for the public to protect itself’ (Lee v Munroe, 7 Cranch [11 US] 366, 370). The second, and more fundamental, reason why estoppel is not generally permitted against the government is that to do so may violate the doctrine of separation of powers. This consideration is dispositive in the case before us.

The State Legislature has granted municipalities the right to condition land development within their boundaries on approval of an acceptable site plan. The Town of East Hampton has further delegated the decision of whether to grant such approvals to the Town Planning Board. A large measure of discretion is afforded to local authorities with respect to the decision on whether to approve the site plans provided, however, that they comply with both the letter and spirit of the SEQRA review process. That being so, a judicial estoppel preventing respondents from implementing the statutory SEQRA requirements as they are required to do, would place the court in opposition to the elected branches of government and override legislative mandates establishing environmental review procedures (see, Eden v Board of Trustees, 49 AD2d 277, 283; cf., Heckler v Community Health Servs., 467 US 51, 60-61 [applying a balancing process in determining whether estoppel against the government could be found]; People v Department of Hous. & Community Dev., 45 Cal App 3d 185, 119 Cal Rptr 266 [applying a similar balancing process and finding that the government should be barred by laches— a doctrine grounded on the same equitable principles as estoppel — from enjoining the development of mobile home park despite an environmental review , act violation]; see gener ally, Berger, Estoppel Against the Government, 21 Chi L Rev 680).

This consideration is more than theoretical. The State has made protection of the environment one of its foremost policy concerns (ECL 8-0103 [legislative findings]). Thus, our statute, unlike many others, imposes substantive duties on the agencies of government to protect the quality of the environment for the benefit of all the people of the State. We have given strong support to implementing this legislative policy, believing that unless a hard look is taken at the environmental factors found in the EAF before a finding of nonsignificance is made, there is a danger that the subsequent finding, made after the EAF is reviewed, would merely be a "rubber stamp” or afterthought. We have insisted, therefore, that the statutory environmental review requirements of SEQRA must be met and have held that if they are not the governmental action is void and, in a real sense, unauthorized (see, Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 368-369; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417; Matter of Tri-County Taxpayers Assn. v Town Bd., 55 NY2d 41, 43, modfg 79 AD2d 337). In view of this strong legislative policy and our decisions supporting it, we should not deny the Planning Board the power to exercise the responsibilities delegated to it by State and local law and estop it from exercising its statutory powers.

Ill

Petitioner contends further that even if respondents had the power to reconsider the entire site plan development, they exercised that power in an arbitrary and capricious manner when they ordered the destruction of improvements completed pursuant to a previous approval no longer open to legal attack.

In addressing that contention respondents concede, as they must, that were it not for petitioner’s decision to build the Oceanside structure, they would be without authority to order destruction of motel units in Ocean East and Hill House and the relocation of the roadway constructed pursuant to the September 1982 site plan approval. Since the first legal challenge to the Beachcomber development was not commenced until April 14, 1983, when the development was substantially completed, there could be no direct challenge to those improvements grounded upon a SEQRA violation because the four-month Statute of Limitations had long since run (CPLR 217) and because, as a general rule, an injunction will not issue to prohibit a fait accompli (Finger Lakes Health Sys. Agency v St. Joseph’s Hosp., 81 AD2d 403, Iv denied 55 NY2d 606; Town of Oyster Bay v New York Tel. Co., 75 AD2d 598). And this is so even though the development violated environmental protection statutes (see, Golden v Metropolitan Transp. Auth., 126 AD2d 128, 132; Florida Wildlife Fedn. v Goldschmidt, 611 F2d 547; Steubing v Brinegar, 511 F2d 489, 495).

Nevertheless, respondents maintain, and the courts below agreed, that petitioner, by submitting the application for site plan modification, subjected the entire development to de novo SEQRA review and that new more stringent conditions were properly imposed on petitioner by the resolution of November 1984.

When a developer takes "action” which could arguably have a significant effect on the environment, the lead agency (6 NYCRR 617.2 [v]), may require an applicant to submit an environmental assessment form to assist the agency in carrying out its responsibility to determine whether the proposed action may have a significant effect on the environment and thus require the preparation of an environmental impact statement (EIS) (ECL 8-0109 [3], [2]). Ideally, the environmental assessment form or forms should be prepared as early as possible, thereby enabling the agency to make an early determination whether an EIS should be prepared (see, Matter of Programming & Sys. v New York State Urban Dev. Corp., 61 NY2d 738, 739; Matter of Tri-County Taxpayers Assn. v Town Bd., 55 NY2d 41, 47, supra). Indeed, if petitioner had been directed by the Planning Board to file an EAF when it submitted its September 1982 and January 1983 applications for site plan approval, this case would not be before us. We recognize, however, that for whatever reason, a lead agency might erroneously make a negative declaration under SEQRA, and thus not require the filing of an EIS before action :is taken. Under these circumstances, it is generally true that when the developer seeks to take further action at the site, the lead agency is empowered to consider the environmental impact of the entire project and is not limited to the consideration of the effects of the specific permit application before it (Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215, 223; see also, Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 205-206). When construction has not started at a given site, a rule which permits the lead agency to exercise broad review powers in considering the effect of the entire development on the environment is both consistent with the goals of SEQRA (see, ECL 8-0101; Matter of Town of Henrietta v Department of Envtl. Conservation, supra, at 219-220), and harmonious with the Department of Environmental Conservation’s regulations which require the agency to consider the entire set of activities or steps in the development as the "action” (6 NYCRR 617.3 [k]). SEQRA must be construed reasonably, however (cf., Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417, supra) and although a lead agency, in examining the site plan, must consider all the facts and circumstances surrounding the proposed project, the broad review appropriate before construction has started is not always reasonable when development has been substantially completed. The Legislature manifestly intended that economic factors of the type and severity presented in this case should be considered with the environmental concerns (see, ECL 8-0103 [7], [9], as amended by L 1977, ch 252; Weinberg, Practice Commentary, McKinney’s Cons Laws of NY, Book 17 Vi, ECL 8-0103, at 63). Specifically, when a Planning Board is considering whether to approve a modification to a site plan where the developer has taken prior action, impervious to attack on SEQRA grounds because of the Statute of Limitations, it is arbitrary and capricious for a Board to condition approval of the modification on the developer’s compliance with remedial measures unless those remedial measures have some demonstrable connection with the environmental impact of the proposed modification. Otherwise stated, the Board cannot use its powers to review the environmental impact of the entire project as a pretext for the correction of perceived problems which existed and should have been addressed earlier in the environmental review process.

This case illustrates the abuses which may result from a contrary approach. The principal issue before the Board when the modified site plans were submitted was whether Oceanside should be constructed. Whether approval should be given to that proposal had no reasonable relationship to several of the substantial remedial measures the Board subsequently imposed on petitioner. At the time of its consideration of the modified site plan, the new Planning Board conceded that construction of the Beachcomber development was complete and that environmental requirements, approved by the Board’s consultant, had been imposed and satisfied by petitioner. Nevertheless, it reexamined the entire development and made significant changes, which were unrelated to the Oceanside development proposed in the modified site plan. It ordered destruction of Hill House to provide an area for emergency vehicles to turn around, to create a buffer area between the development and the neighboring properties to the north and to create better opportunities to control drainage and storm water runoff. Each of these perceived problems would exist in the same degree, however, whether or not the Board approved the building of Oceanside. Similarly, the Board required the destruction and removal of four units on the Ocean East building to provide emergency fire vehicles with easier access to the rear of Ocean East and Ocean West. Again, the perceived problem existed prior to the development of the Oceanside building; it was not changed by the decision on whether Oceanside could be built. Thus, respondents used the modified site plan application to impose additional burdens on petitioner to satisfy perceived environmental problems which were previously before the Board. The Board’s action in doing so was arbitrary and capricious and requires that its decision be set aside.

Accordingly, the order of the Appellate Division should be reversed, with costs, the petition in the Foster proceeding should be granted and the matter remitted to the Planning Board for further proceedings in accordance with this opinion and, in the DeCristofaro proceeding, the petition should be granted to the extent of requiring the Town Building Inspector to issue temporary certificates of occupancy for all units constructed under the site plan approved in September 1982.

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

Order reversed, with costs, the petition in the Foster proceeding granted and the matter remitted to Supreme Court, Suffolk County, with directions to remand to the Planning Board for further proceedings in accordance with the opinion herein, and in the DeCristofaro proceeding the petition granted to the extent of requiring the Town Building Inspector to issue temporary certificates of occupancy in accordance with the opinion herein.


source: Caselaw Access Project

author: Titone, J.

license: Public Domain

text:
    The People of the State of New York, Appellant, v Paul Bright, Also Known as John Doe, Respondent. The People of the State of New York, Appellant, v Alfred Clark, Respondent.
    Argued January 6, 1988;
    decided February 17, 1988

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Barbara A. Shee

      han and Norman Barclay of counsel), for appellant.
    Penal Law § 240.35 (7) provides sufficient notice of the conduct it proscribes, contains explicit standards for its enforcement, and therefore comports with constitutional requirements. (People v Velazquez, 77 Misc 2d 749; Matter of Van Berkel v Power, 16 NY2d 37; People v Berck, 32 NY2d 567, 414 US 1093; United States v Harriss, 347 US 612; People v Smith, 44 NY2d 613; People v Guilbert, 122 Misc 2d 694; People v Merolla, 9 NY2d 62, 365 US 872; People v Johnson, 6 NY2d 549; People v Bell, 306 NY 110.)

      Michele Maxian and Caesar D. Cirigliano for respondents.
    I. Penal Law § 240.35 (7) is void for vagueness and violates constitutional protections against unreasonable seizures and self-incrimination, because it fails to give adequate notice of the conduct it prohibits or explicit standards of enforcement, and because it premises arrest upon a potential arrestee’s failure to provide a "satisfactory explanation of his presence.” (United States v Harriss, 347 US 612; Papachristou v City of Jacksonville, 405 US 156; People v Berck, 32 NY2d 567; Grayned v City of Rockford, 408 US 104; Kolender v Lawson, 461 US 352; People v Velazquez, 77 Misc 2d 749; People v Nowak, 46 AD2d 469; People v Pagnotta, 25 NY2d 333; People v Smith, 44 NY2d 613; People v Johnson, 6 NY2d 549.) II. Even if Penal Law § 240.35 (7) withstands constitutional scrutiny, the suppression order in People v Bright should be sustained because the arresting officer’s observation of defendant showing an open satchel to a passerby and defendant’s negative reply to police questioning regarding his possession of a train ticket or funds to purchase one, did not provide probable cause for his arrest for loitering and, therefore, the subsequent search was not justified as incident to a lawful arrest. (People v Bell, 306 NY 110; Wong Sun v United States, 371 US 471; People v De Bour, 40 NY2d 210; Henry v United States, 361 US 98; People v Carrasquillo, 54 NY2d 248; People v Howard, 50 NY2d 583; People v Nowak, 46 AD2d 469.)
   OPINION OF THE COURT

Titone, J.

The issue presented on these two appeals is whether Penal Law § 240.35 (7), which provides that "[a] person is guilty of loitering when he * * * [ljoiters or remains in any transportation facility, or is found sleeping therein, and is unable to give a satisfactory explanation of his presence”, is constitutional. We hold that this statute is unconstitutionally vague under the Due Process Clauses of the Federal and State Constitutions because it fails to give fair notice to the ordinary citizen that the prohibited conduct is illegal, it lacks minimal legislative guidelines, thereby permitting arbitrary enforcement and, finally, it requires that a citizen relinquish his constitutional right against compulsory self-incrimination in order to avoid arrest.

I.

People v Bright

On the evening of March 19, 1985, a New York City policeman observed defendant Bright displaying an open satchel to a passerby on the Long Island Railroad Concourse located in Pennsylvania Station. When Bright noticed that the officer was watching him, he quickly closed the satchel. The policeman approached Bright and the following conversation took place:

"Officer: What are you doing here?
"Defendant: Why are you bothering me.
"Officer: Got a ticket to take the train?
"Defendant: No.
"Officer: Any money to buy a ticket?
"Defendant: No.
"Officer: Are you going to take the train?
"Defendant: No.”

Based solely on this exchange, the officer escorted Bright to the Long Island Railroad police office, where he asked Bright to produce identification. When Bright failed to produce any, the officer informed him that he was under arrest for loitering pursuant to Penal Law § 240.35 (7). Bright was read his Miranda warnings and asked to empty his pockets. As Bright removed a piece of paper from his trouser pocket, two credit cards and four other identification cards fell to the floor, none of which belonged to him. Bright then told the officer that he had found the various cards and planned to sell them.

Defendant Bright was charged by indictment with two counts of criminal possession of stolen property in the second degree (Penal Law § 165.45 [2]), and one count of criminal possession of stolen property in the third degree (Penal Law § 165.40). On his pretrial motion to suppress the physical evidence, Bright argued that he was arrested without probable cause, and that his arrest was illegal, since the loitering statute pursuant to which he was arrested was unconstitutional. The Supreme Court, relying on its decision in People v Velazquez (77 Mise 2d 749), held that the statute was unconstitutionally vague and granted the suppression motion on the theory that the arrest was violative of the defendant’s constitutional rights. A unanimous Appellate Division affirmed, without opinion.

People v Clark

On the morning of April 24, 1985, defendant Clark was in the Port Authority Bus Terminal located in New York City when he was approached by a Port Authority police officer. Although the record is not entirely clear as to what occurred next, the officer arrested Clark for loitering in violation of Penal Law § 240.35 (7) when he was unable to give a satisfactory explanation regarding his presence in the bus terminal. As an incident to that arrest, the officer searched Clark and found a cellophane envelope containing cocaine and a glass pipe with cocaine residue in the defendant’s jacket pocket.

Clark was charged with loitering (Penal Law § 240.35 [7]), and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). At his arraignment before the Criminal Court of the City of New York, Clark moved to dismiss the loitering charge on the ground that Penal Law § 240.35 (7) was unconstitutionally vague. His motion was denied, and he was permitted to plead guilty to a violation of the loitering statute in satisfaction of both charges. On appeal before the Appellate Term, First Department, the court held that the statute was unconstitutionally vague and reversed the conviction, dismissed the loitering charge and remanded the case to the Criminal Court for further proceedings on the charge of criminal possession of a controlled substance.

In each of these two cases, a Judge of this court granted the People leave to appeal so that we could consider the constitutionality of Penal Law § 240.35 (7). We have examined the People’s arguments in support of the statute, but agree with the defendants that the statute is void for vagueness, and we now affirm in both cases.

II.

Penal Law § 240.35 (7) is derived from two former enactments, Penal Law § 1990-a (2) (L 1939, ch 391, as amended by L 1941, ch 835, and L 1951, ch 269) and Penal Law § 150 (2) (L 1953, ch 139). Under former Penal Law § 1990-a (2), a person was guilty of an offense if he loitered or was found sleeping "about any toilet, station or station platform of a subway or elevated railway or of a railroad” and was "unable to give satisfactory explanation of his presence”.

The legislative history of Penal Law § 1990-a (2) indicates that the subways and railroad stations had become an attractive place for "fakers, perverts, pickpockets, loiterers, sleepers, flimflam men, etc., [who] infest[ed] these properties, night and day, necessitating constant policing by a large force of special officers and state railway officers” (Bill Jacket, L 1939, ch 391, Senate Mem, at 4). Public officials and railroad authorities sought to prevent "peddlers and loiterers from harassing and annoying people on the railroad properties” (id., Senate Mem, at 3). The Legislature, aware that the courts were refusing to convict people arrested in the train and subway stations of vagrancy or disorderly conduct, considered the bill necessary to protect the traveling public, especially because of the desire to "clean up” the subways and other railroad facilities in anticipation of the World’s Fair held in New York City in 1939 (id., Mayor’s letter, at 10-11; Mem to Governor, at 14; see also, People v Bell, 306 NY 110, 113 [danger to public "arises from the congregation of nondescript characters at such locations”]).

Former Penal Law § 150 (2) made it an offense to loiter "about any toilet, area, station, station platform, waiting room or other appurtenance of an air or bus terminal” unless the loiterer was able "to give satisfactory explanation of his presence”. This statute, like its counterpart, Penal Law § 1990-a (2), sought to provide "maximum passenger safety, comfort and convenience” by ridding these facilities of "many undesirable characters” who were loitering, soliciting business and begging in passenger terminals (Bill Jacket, L 1953, ch 139, Mem in support, at 4-5).

In 1965, the Legislature enacted the statute at issue here, Penal Law § 240.35 (7), restating in more general terms former Penal Laws §§ 150 and 1990-a (2) (see, Hechtman, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 240.35 [7], at 317). Under the statute, one is guilty of a violation if he "[ljoiters or remains in any transportation facility, or is found sleeping therein, and is unable to give a satisfactory explanation of his presence” (Penal Law § 240.35 [7]). A "transportation facility” is defined as "any conveyance, premises or place used for or in connection with public passenger transportation, whether by air, railroad, motor vehicle or any other method. It includes aircraft, watercraft, railroad cars, buses, and air, boat, railroad and bus terminals and stations and all appurtenances thereto” (Penal Law § 240.00 [2])-

III.

An enactment of our Legislature is presumed to be valid and the heavy burden of demonstrating that a statute is unconstitutional rests with the one seeking to invalidate the statute (Matter of Van Berkel v Power, 16 NY2d 37, 40; Fenster v Leary, 20 NY2d 309, 314; People v Pagnotta, 25 NY2d 333, 337). In a challenge to the constitutionality of a penal law on the grounds of vagueness, it is well settled that a two-pronged analysis is required. First, the statute must provide sufficient notice of what conduct is prohibited; second, the statute must not be written in such a manner as to permit or encourage arbitrary and discriminatory enforcement (see, Kolender v Lawson, 461 US 352, 357; Grayned v City of Rockford, 408 US 104, 108-109; Papachristou v City of Jacksonville, 405 US 156, 162; People v Nelson, 69 NY2d 302, 307; People v Smith, 44 NY2d 613, 618; Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227, 234; People v Heller, 33 NY2d 314, 328; People v Berck, 32 NY2d 567, 569; People v Pagnotta, supra, at 337).

The rationale underlying the requirement that a penal statute provide adequate notice is the notion "that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed” (United States v Harriss, 347 US 612, 617; see also, Colten v Kentucky, 407 US 104, 110; Lanzetta v New Jersey, 306 US 451, 453). Consistent with our concept of basic fairness, due process requires that a penal statute be sufficiently definite by its terms so as "to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute” (United States v Harriss, supra, at 617; see also, Colten v Kentucky, supra, at 110; Jordan v De George, 341 US 223, 230-232; Matter of Sussman v New York State Organized Crime Task Force, supra, at 234; People v Berck, supra, at 569). For this reason, under our State and Federal Constitutions, the Legislature may not criminalize conduct that is inherently innocent merely because such conduct is "sometimes attended by improper motives,” since to do so would not fairly inform the ordinary citizen that an otherwise innocent act is illegal (People v Bunis, 9 NY2d 1, 4; see, People v Pagnotta, 25 NY2d 333, 337, supra; People v Diaz, 4 NY2d 469, 470-471; People v Kuc, 272 NY 72, 75-76; see also, Smith v Goguen, 415 US 566, 574 [" 'men of common intelligence’ should not be forced to guess at the meaning of the criminal law”]; Lanzetta v New Jersey, supra, at 453).

The other prong of the test, which requires that a penal law not permit arbitrary or discriminatory enforcement is, perhaps, the more important aspect of the vagueness doctrine (see, Kolender v Lawson, 461 US 352, 358, supra). The Legislature must include in a penal statute "minimal guidelines to govern law enforcement” (id., quoting Smith v Goguen, 415 US 566, 574, supra). The absence of objective standards to guide those enforcing the laws permits the police to make arrests based upon their own personal, subjective idea of right and wrong. A vague statute "confers on police a virtually unrestrained power to arrest and charge persons with a violation” (Lewis v City of New Orleans, 415 US 130, 135 [Powell, J., concurring]), and "furnishes a convenient tool for 'harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure’ ” (Papachristou v City of Jacksonville, 405 US 156, 170, supra, quoting Thornhill v Alabama, 310 US 88, 97-98).

The term "loiter” or "loitering” has a commonly accepted meaning that has evolved over the years, and connotes the act of remaining about or hanging around a place without any apparent purpose (see, People v Merolla, 9 NY2d 62, 66, cert denied 365 US 872; People v Johnson, 6 NY2d 549, 552, 554 [Fuld, J., dissenting]; People v Diaz, 4 NY2d 469, 470, supra; People v Bell, 306 NY 110, 113, 116-117, supra; People v Taggart, 66 Misc 2d 344, 346-347). However, a statute that merely prohibits loitering, without more, is unconstitutionally vague. Such a generalized law fails to distinguish between conduct calculated to cause harm and conduct that is essentially innocent, thereby failing to give adequate notice of what conduct is prohibited. Further, such a statute impermissibly places complete discretion in the hands of the police to determine whom they will arrest (People v Berck, 32 NY2d 567, 571, supra; People v Merolla, supra, at 67; People v Diaz, supra, at 471).

We have upheld loitering statutes only when they either prohibited loitering for a specific illegal purpose or loitering in a specific place of restricted public access (see, People v Berck, supra, at 570; see also, People v Smith, 44 NY2d 613, supra; People v Pagnotta, 25 NY2d 333, supra; People v Merolla, supra; People v Johnson, supra). Thus, statutes making it a crime to loiter for the purpose of using illegal drugs or for the purpose of engaging in prostitution have been upheld. Such laws provide the ordinary citizen with adequate notice of the exact conduct prohibited, and require the officer on-the-scene to objectively observe some definable impermissible act in order to find probable cause to arrest, thereby foreclosing the possibility that the law will be arbitrarily enforced (see, People v Smith, supra [loitering for purpose of prostitution]; People v Pagnotta, supra [loitering for purpose of using illegal drugs]). Similarly, we have held constitutional statutes prohibiting loitering in a specifically restricted place, such as a school or waterfront facility, since these locations were not open to the public, were places where illegal activity was notorious, and were normally frequented only by those who are affiliated with the activity being carried on there (see, People v Merolla, supra [waterfront facility]; People v Johnson, supra [loitering in schools]).

The thrust of the People’s argument on this appeal in support of the statute is twofold. First, the People argue that the "satisfactory explanation” provision in the statute is constitutionally permissible. Second, the People take the position that Penal Law § 240.35 (7) falls within the category of statutes prohibiting loitering in specific places of restricted public access. To support these arguments, the People rely on People v Bell (306 NY 110, supra), which upheld against constitutional challenge former Penal Law § 1990-a (2), a statute very similar to the one at issue here. In Bell, we held that a provision permitting the police to arrest a person for loitering unless he provides a "satisfactory explanation of his presence” is not a substantive element of the crime, but merely a procedural device to be followed by law enforcement officials in order to prevent the arrest of those who are innocent of any wrongdoing (id., at 114-116). We further held that a subway station or railroad station was a place of restricted public access (id., at 114). Nevertheless, we find the People’s arguments unpersuasive and in direct opposition to precedents that have emerged since Bell was decided from both this court and the United States Supreme Court.

Regardless of whether one characterizes the "satisfactory explanation” requirement as substantive or procedural, in People v Berck, we concluded that a similar provision in a loitering statute that required a person to "identify himself’ or "give a reasonably credible account of his conduct and purposes” was unconstitutional (People v Berck, 32 NY2d 567, 569, n 1; 571-572, supra). We held that under this provision, "enforcement of the law depends entirely upon whether the arresting officer is satisfied that a suspect has given” an acceptable account of his presence (People v Berck, supra, at 571). Similarly, in Kolender v Lawson (461 US 352, supra), the court invalidated a California loitering statute that required a person to provide identification and to account for his presence when requested by a peace officer. The court concluded that the statute contained "no standard for determining what a suspect has to do in order to satisfy the requirement” (Kolender v Lawson, supra, at 358). Thus, the court held that the statute was unconstitutionally vague because it vested "virtually complete discretion in the hands of the police” without any legislative guidelines (id.). The statutory mandate at issue here that a suspect provide the officer with a "satisfactory explanation of his presence” is indistinguishable from these other "credible account” provisions. The determination as to what constitutes a "satisfactory explanation” is left entirely up to the policeman on the scene without any legislative guidance whatsoever, and renders the statute unconstitutional (see also, People v Schanbarger, 24 NY2d 288).

Requiring a person suspected of violating the loitering statute provide a "satisfactory explanation” to avoid arrest is also violative of a citizen’s right not to answer questions posed by law enforcement officers. Although a police officer may have the right under appropriate circumstances to stop a person in a public place and make inquiry (see, Terry v Ohio, 392 US 1), a citizen is under no obligation to provide any explanation regarding his conduct. He is permitted to remain silent under the Fifth Amendment to the Federal Constitution and article I, section 6 of the State Constitution (People v Schanbarger, supra). However, under Penal Law § 240.35 (7), he is faced with the choice of either foregoing his constitutional right to remain silent in the hope that his explanation will satisfy that particular law enforcement official, or invoking his constitutional right to remain silent and being arrested. As we held in People v Schanbarger (supra, at 292), the failure of a suspect to answer an inquiry of a policeman "cannot constitute a criminal act”. Although "an officer may have a right to inquire into suspicious circumstances, a suspect’s silence may not be used as a predicate for a separate offense such as loitering” (People v Berck, 32 NY2d 567, 574, supra; Kolender v Lawson, supra, at 362-365 [Brennan, J., concurring]). A provision such as this one effectively deprives the citizen of his constitutional right to remain silent, since his failure to speak will result in certain arrest under the statute (cf., Davis v Mississippi, 394 US 721, 727, n 6; Olmstead v United States, 277 US 438, 476-478 [Brandeis, J., dissenting]; People v Conyers, 49 NY2d 174). It punishes a suspect for exercising his constitutional right to remain silent and impermissibly transforms the invocation of this right into a criminal act.

Even if the statute did not contain the "satisfactory explanation” requirement, however, we would still be compelled to conclude that, as applied, the statute is unconstitutionally vague. Under the Penal Law, a "transportation facility” is defined in such a broad, all-encompassing manner so as to include some facilities that are more analogous to the public street than to a specific area of restricted public access that gives notice of its prohibition against loitering. The statutory definition that embraces "all appurtenances thereto” is also too vague and wide ranging in the context of this case. At the time People v Bell (306 NY 110, supra) was decided, railroad stations offered few amenities, serving primarily as a place to purchase a ticket and wait for a train. Since that time, several of our transportation facilities have evolved into large, multipurpose complexes, replete with wide concourses along which numerous retail establishments of all kinds implicitly invite the public to enter, browse and shop.

The two facilities involved here, the Long Island Railroad Station and the Port Authority Bus Terminal, have numerous entrances and exits to the street, the New York City subway lines, as well as to buses, trains and house many other businesses that serve the general public. Thousands of commuters, shoppers and other people enter these terminals for a wide variety of reasons daily (see, Wolin v Port of N. Y. Auth., 392 F2d 83, 85, 88-89; People v Velazquez, 77 Misc 2d 749, supra). As the Second Circuit has stated, the Port Authority Bus Terminal, "with its many adjuncts, becomes something of a small city” (Wolin v Port of N. Y. Auth., supra, at 89). Similarly, Pennsylvania Station is also something of a small, indoor city. These facilities are not places of restricted public access like the school in People v Johnson (supra) or the waterfront facility in People v Merolla (supra), which gave the loiterer notice that he had no right to be there, but, rather, large, public areas.

Since both transportation facilities at issue here are, in reality, "public places,” the statute, as applied, does not satisfy due process, since it fails to give unequivocal notice to the unwary that an activity as innocuous as mere loitering is prohibited (see, People v Berck, 32 NY2d 567, 569, supra). Indeed, facilities such as Pennsylvania Station and Port Authority Bus Terminal are so public in nature, that they actually invite conduct that could be construed as loitering. Thus, in these two cases, the statute has the effect of prohibiting loitering in a public place and cannot withstand constitutional scrutiny (see, People v White, 48 NY2d 849; People v Berck, supra; People v Diaz, 4 NY2d 469, supra).

Moreover, the statute is unconstitutionally vague, since it provides absolutely no legislative "guidelines governing the determination as to whether a person is engaged in suspicious loitering” in places of unrestricted public access (People v Berck, supra, at 571). In such large, urban transportation facilities, many people are engaged in activity that is seemingly aimless to the objective observer, such as waiting for a train, strolling about the concourse, or waiting for the rain to stop. Nevertheless, who will be stopped, questioned, and arrested under this statute is left "solely up to the discretion of the police officer” on the scene (People v Berck, supra, at 571).

Inasmuch as we have concluded that Penal Law § 240.35 (7) is unconstitutional, we need not reach defendant Bright’s claim that the police lacked probable cause to arrest him.

Accordingly, the orders appealed from in both cases should be affirmed.

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

In each case: Order affirmed.

      . In affirming, we do not address the issue of whether evidence obtained pursuant to an arrest under an unconstitutional statute necessarily requires that such evidence be suppressed, since the People apparently did not raise the issue below and have not raised this question on appeal (see, Michigan v DeFillippo, 443 US 31).

      . Although we upheld the statute in People v Merolla (9 NY2d 62) on the ground that a waterfront facility was a sufficiently restricted area, we did note that the statutory requirement that one not loiter within 500 feet of a waterfront facility might be susceptible to unconstitutional application.


author: Per Curiam.

text:
    In the Matter of Michael J. Greenfeld, a Justice of the Valley Stream Village Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued February 5, 1988;
    decided March 17, 1988
    POINTS OF COUNSEL

      Irving Tenenbaum for petitioner.
    I. The Commission’s rationale supporting removal of petitioner is not supported by the facts in the record. II. The Commission erred in determining that the conversations had with the Deputy Village Attorney were ex parte communications. III. The sanction of removal from judicial office is excessive and unwarranted considering all of the facts and circumstances of this case. (Matter of Quinn v State Commn. on Judicial Conduct, 54 NY2d 386; Matter of Cunningham, 57 NY2d 270; Matter of Kelso, 61 NY2d 82.)

      Robert Tembeckjian, Gerald Stern and Jean M. Savanyu for respondent.
    Petitioner’s conduct violated established ethical standards and demonstrates lack of fitness for judicial office. (Matter of Myers, 67 NY2d 550; Matter of Shilling, 51 NY2d 397; Matter of Sims, 61 NY2d 349.)
   OPINION OF THE COURT

Per Curiam.

Petitioner instituted this proceeding to review a determination of respondent State Commission on Judicial Conduct which recommended that the court remove him from the office of Justice of the Valley Stream Village Court, Nassau County, for improperly delegating his judicial duties and giving false information to the Nassau County Administrative Judge.

According to the parties’ agreed statement of facts, petitioner served as Acting Village Justice of Valley Stream between April 1, 1983 and March 9, 1986. Until May 1, 1985 he presided over the Village Court approximately 30% of the time it was in session. Thereafter, until March 9, 1986, petitioner alone presided over the court because of the illness of the incumbent Village Justice. The Deputy Village Attorney was charged with prosecuting matters in Village Court and between April 1983 and March 1986 petitioner permitted him to perform the judicial duties of the Village Court in the absence of a Judge by conducting conferences with defendants after the court had written to the defendants and advised them to appear for trial. The Deputy Village Attorney accepted guilty pleas; determined the amount of fines to be paid by defendants and advised defendants of the amount of fines to be paid only after they had entered pleas of guilty; and entered the disposition of cases on official court records. In virtually every case that was disposed of without trial, the Justice presiding did not see the defendant after arraignment nor did he review the disposition of the case after the plea bargain was consummated. Because of the delegation of judicial duties to the Deputy Village Attorney by the Village Justice and petitioner, acting in his absence, numerous defendants were led to believe that the Deputy Village Attorney was the Judge who was disposing of their cases.

On March 10, 1986 the Village Justice died and petitioner was appointed as Valley Stream Village Justice. After his appointment, until June 23, 1986, he permitted the Deputy Village Attorney to continue these procedures. If a defendant and the Deputy Village Attorney agreed to a plea of guilty and a fine, however, the Deputy Village Attorney wrote the proposed disposition on the court papers, which were then delivered to petitioner the same evening for his examination. Petitioner determined whether to accept the plea of guilty and to set the fine in accordance with the agreement. The defendants did not appear before petitioner but were told that the Deputy Village Attorney’s recommendation required court approval. In several instances during this period in which the Deputy Village Attorney had written recommendations on court records concerning proposed dispositions, petitioner engaged in ex parte communications with the Deputy Village Attorney concerning the recommended disposition during which the Deputy Village Attorney set forth the basis for his recommendations.

In November 1985 the Office of Court Administration received an anonymous letter complaining about these procedures, and the Administrative Judge for Nassau County forwarded the letter to both the Village Justice and petitioner and requested that they respond to allegations in the letter charging them with abandoning their judicial duties to the prosecutor. In January 1986 petitioner prepared a letter response to the Administrative Judge. It was executed by both petitioner and the Village Justice and explained the plea bargaining procedures in the Village Court. In the letter petitioner falsely stated that the Judge presiding in Village Court reviewed and approved all plea bargains on the night they were made and that if there were close questions or problems, the parties were brought before the Bench where judicial discretion was exercised.

Notwithstanding this complaint and the inquiry by the Administrative Judge, from January 1986 until March 9, 1986 petitioner continued the practice of not reviewing dispositions on the night that they were made. He modified this practice after March 9, 1986 to the extent that he examined the proposed dispositions on the same night they were agreed upon, but even after this date defendants rarely appeared before petitioner in person.

Based upon this improper conduct and the false representations in petitioner’s letter, respondent concluded that petitioner had violated sections 100.1 (upholding the independence of the judiciary), 100.2 (a) (avoiding the appearance of impropriety) and 100.3 (a) (4) (according a party a right to be heard, avoiding ex parte communications) of the Rules Governing Judicial Conduct (22 NYCRR) and the similar rules stated in canons 1, 2 (A) and 3 (A) (4) of the Code of Judicial Conduct. It determined that the appropriate sanction was the removal of petitioner from office.

The delegation of judicial duties was improper and should have been discontinued. Moreover, petitioner’s deceptive response to the Administrative Judge’s inquiry helped to conceal the practice and prevent the implementation of corrective measures. That the procedures were instituted by petitioner’s predecessor, the deceased Village Justice, who directed petitioner as Acting Justice to follow them does not excuse the conduct. Petitioner was responsible for his own conduct in the discharge of his judicial duties.

Accordingly, the determined sanction of the State Commission on Judicial Conduct should be accepted, without costs, and petitioner should be removed from his office of Village Justice.

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

Determined sanction accepted, without costs, and Michael J. Greenfeld is removed from his office of Justice of the Valley Stream Village Court.

       Designated pursuant to NY Constitution, article VI, § 2.


author: Kaye, J.

text:
    Joseph Santangelo, Appellant, v State of New York, Respondent. Fred Kirschenheiter, Appellant, v State of New York, Respondent.
    Argued February 2, 1988;
    decided March 22, 1988

      POINTS OF COUNSEL

      James J. Kelly for appellants.
    I. The record establishes that a special relationship existed between appellants and respondent, sufficient to impose liability in this action. (Cuffy v City of New York, 69 NY2d 255; Schrempf v State of New York, 66 NY2d 289; Sorichetti v City of New York, 65 NY2d 461; De Long v County of Erie, 60 NY2d 296; Kenavan v City of New York, 120 AD2d 24; Stilo v County of Nassau, 122 AD2d 41; Cunetta v Board of Educ., 121 AD2d 677.) II. The record herein demonstrates that appellants did not assume the risk of injury. (Arbegast v Board of Educ., 65 NY2d 161; Turcotte v Fell, 68 NY2d 432.) III. There are no public policy considerations which mandate a denial of liability in this action. (Tarter v State of New York, 68 NY2d 511; Satiro v City of New Rochelle, 102 AD2d 821.)

      Robert Abrams, Attorney-General (Vernon Stuart, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
    I. The court below correctly decided that a policeman is prohibited by public policy from recovering for injuries sustained as a result of a negligent act which created the occasion for his presence at the place of the occurrence. (McGee v Adams Paper & Twine Co., 26 AD2d 186, 20 NY2d 921; Arbegast v Board of Educ., 65 NY2d 161; Turcotte v Fell, 68 NY2d 432; Akins v Glens Falls City School Dist., 75 AD2d 239, 53 NY2d 325.) II. The State of New York did not have a special relationship or special duty to the claimants. (Motyka v City of Amsterdam, 15 NY2d 134; Evers v Westerberg, 38 AD2d 751, 32 NY2d 684; O’Connor v City of New York, 58 NY2d 184; Satiro v City of New Rochelle, 102 AD2d 821, 64 NY2d 614; Yearwood v Town of Brighton, 101 AD2d 498, 64 NY2d 667; Cuffy v City of New York, 69 NY2d 255; De Long v County of

      Erie, 60 NY2d 296; Vitale v City of New York, 60 NY2d 861; Napolitano v County of Suffolk, 92 AD2d 931, 61 NY2d 863; Bardavid v New York City Tr. Auth., 61 NY2d 986.) III. Claimants failed to prove that any alleged negligence of the State was the proximate cause of claimants’ injuries. (Huntley v State of New York, 62 NY2d 134; Friedman v State of New York, 67 NY2d 271; Dunn v State of New York, 29 NY2d 313; Murray v State of New York, 38 NY2d 782; Stuart-Bullock v State of New York, 38 AD2d 626, 33 NY2d 418; Lyle v State of New York, 44 AD2d 239; Sheehan v City of New York, 40 NY2d 496.)
   OPINION OF THE COURT

Kaye, J.

Police officers injured while attempting to subdue an escaped mental patient cannot, in general, recover damages against the State for negligence in connection with the patient’s escape.

Claimants — Suffolk County Police Officers Joseph Santangelo and Fred Kirschenheiter — were injured on July 15, 1979 when they attempted to apprehend Brian Bordes, an escaped mental patient, and return him to Kings Park Psychiatric Center.

Bordes had a history of confinement and escape from Kings Park. Several times Bordes was delivered there by Suffolk County police officers, most recently on May 9, 1979 when he was involuntarily committed after having fired a rifle into a cabinet at his grandparents’ home. Police directed the hospital staff to inform them if he was discharged because there were warrants outstanding for his arrest. But the hospital’s supervision failed yet again, and on May 17 Bordes — considered potentially dangerous to himself and others — escaped once more. The hospital notified the family and the police of the escape, but when Bordes remained at large for 30 days, the hospital simply marked him "discharged”, meaning that its records no longer reflected that he had escaped. Suffolk County police were notified of the "discharge” and canceled the alarm on Bordes. Thus, on July 15 there was no notification in police records of his escape or his potential dangerousness.

On the morning of July 15, 1979, Bordes’ uncle called Suffolk County police headquarters and advised Santangelo that Bordes was an escapee from Kings Park and was at his grandparents’ home, that he feared for their welfare, and that Bordes previously had fled at the sight of uniformed police officers. Santangelo determined from the office teletype file that there were no outstanding alarms for Bordes, and with Kirschenheiter went to apprehend him. They found Bordes seated on the living room couch. When they identified themselves as police, Bordes produced a knife from his pocket and threatened them with it. In their ensuing efforts to subdue Bordes, including spraying chemical mace and shooting at him, both officers were injured.

Claimants thereafter instituted personal injury suits against the State, asserting two theories: that the State was negligent in permitting this dangerous patient to escape and remain at large, and that the State violated Department of Mental Hygiene regulations regarding escapees in marking Bordes "discharged” and in failing to give them the required particular notice of his escape and dangerousness. The Court of Claims found both that the State was negligent and that it had violated regulations by marking Bordes "discharged” after his escape. However, the court denied claimants any recovery because public policy precluded it, because claimants were not within the class intended to be protected by the regulations and because, even if they were, the requisite notification had in effect been made. The Appellate Division affirmed (127 AD2d 647). We granted leave and now affirm.

It is a long-standing common-law rule that firefighters injured while extinguishing fires generally cannot recover against the property owners or occupants whose negligence in maintaining the premises occasioned the fires (see, Kenavan v City of New York, 70 NY2d 558; McGee v Adams Paper & Twine Co., 20 NY2d 921, affg on opn below 26 AD2d 186). The rule has been recognized in the statutory law of this State by the adoption of General Municipal Law § 205-a, creating a cause of action where none would otherwise exist, for firefighters sustaining "injuries while engaged in extinguishing a fire on premises wherein the owner or other person in control negligently failed to comply with the requirements of some statute, ordinance, or rule respecting the maintenance and safety of such premises.” (Kenavan v City of New York, 70 NY2d 558, 567, supra.)

The initial rationale for the common-law rule — known as the "fireman’s rule” — was that firefighters entering upon premises were no more than licensees, and therefore took the property as they found it (see, Flowers v Rock Creek Terrace, 308 Md 432, 520 A2d 361; Prosser and Keeton, Torts § 61, at 429; Annotation, Liability of Owner or Occupant of Premises to Fireman Coming Thereon in Discharge of his Duty, 11 ALR4th 597). Later cases have rejected the premises-based rationale and instead cast the general denial of liability in terms of assumption of risk: persons who choose to become firefighters assume the risks of fire-related injuries, including the risk of negligence of property owners and occupants in maintaining their premises (see, e.g., McGee v Adams Paper & Twine Co., 26 AD2d, at 190, supra; see also, Pottebaum v Hinds, 347 NW2d 642 [Iowa]; Calvert v Garvey Elevators, 236 Kan 570, 694 P2d 433; Armstrong v Mailand, 284 NW2d 343 [Minn]; Krauth v Geller, 31 NJ 270, 157 A2d 129). The "fireman’s rule” has also been grounded on public policy: municipalities employ firefighters precisely because special skills and expertise are required to confront certain hazards — usually of an emergency nature — that expose the public to danger, these hazards often arise from negligence, and as a matter of public policy firefighters trained and compensated to confront such dangers must be precluded from recovering damages for the very situations that create a need for their services (see, e.g., Krauth v Geller, 31 NJ 270, 157 A2d 129, supra).

These policy considerations — which in our view most aptly support the rule — are relevant as well to police officers injured in the line of duty (see, e.g., Walters v Sloan, 20 Cal 3d 199, 202, 571 P2d 609, 610-611; Flowers v Rock Creek Terrace, 308 Md 432, 442, n 4, 520 A2d 361, 366, n 4, supra [citing other jurisdictions so holding]; but see, Christensen v Murphy, 296 Ore 610, 678 P2d 1210 [abolishing the rule], and Kreski v Modern Wholesale Elec. Supply Co., 151 Mich App 376, 390 NW2d 244 [rejecting the rule]; Note, Oregon Abolishes the Fireman’s Rule — Christensen v Murphy, 19 Suffolk UL Rev 957 [1985]). Like firefighters, police are the experts engaged, trained and compensated by the public to deal on its behalf with emergencies and hazards often created by negligence, and like firefighters they generally cannot recover damages for negligence in the very situations that create the occasion for their services. Apprehending an escaped mental patient— who may well have escaped owing to negligent supervision, and may well be dangerous — is a function particularly within the scope of duty of police officers (see, e.g., Mental Hygiene Law § 29.19). Nor are police officers left unprotected by such a rule. They receive both training that enables them to minimize the dangers their occupation requires them to face, and compensation and special benefits to help assure that the public will bear the costs of injuries suffered by its protectors in the line of duty. (See, e.g., General Municipal Law art 10 ["Firemen and Policemen”]; Retirement and Social Security Law art 8 ["New York State Policemen’s and Firemen’s Retirement System”].)

Both the Court of Claims and the Appellate Division, in denying recovery, relied on the doctrine of assumption of risk and particularly on Arbegast v Board of Educ. (65 NY2d 161), holding that express rather than implied assumption of risk applied here. Claimants now urge that the risk they confronted exceeded any they assumed and that the "special relationship” they had with Kings Park, both by virtue of Mental Hygiene Law § 29.19 and by virtue of the special facts, entitles them to recovery. While we affirm the result reached by both courts, we make clear that our decision is not predicated upon principles of comparative fault but rather upon sound considerations of public policy resting on the nature of the occupation — which often requires police to confront negligently created emergencies on behalf of the public. Here the anomaly of permitting recovery by police officers would be particularly evident: allowing recovery against the State for injuries incurred while apprehending an escaped mental patient would result in the payment of damages by the public for injuries sustained by the experts it employs to deal with such situations.

The trial court additionally rejected claims based on violation of particular statutes and regulations, finding them without basis in fact or law, and the Appellate Division affirmed. In their argument to this court, however, claimants do not press those contentions, and we need not address them.

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

Chief Judge Wachtler and Judges Simons, Alexander, Hancock, Jr., and Bellacosa concur; Judge Titone taking no part.

Order affirmed, with costs.


author: Alexander, J.

text:
    In the Matter of Richard P. Lucas, Appellant, v Charles J. Scully, as Superintendent of Green Haven Correctional Facility, et al., Respondents.
    Argued January 8, 1988;
    decided February 11, 1988

      POINTS OF COUNSEL

      Robert Selcov and David C. Leven for appellant.
    I. Defendants’ policies should be declared unconstitutional under the United States Constitution if their interests can be satisfied by less restrictive means. (Matter of Milburn v McNiff [Milburn I], 81 AD2d 587, 56 NY2d 1034; Matter of Milburn v McNiff [Milburn II], 91 AD2d 1024; Matter of Milburn v McNiff [Milburn III] 108 AD2d 860, 65 NY2d 812; Procunier v Martinez, 416 US 396; Rochester Gas & Elec. Corp. v Public Serv. Commn., 51 NY2d 823; Consolidated Edison Co. v Public Serv. Commn., 447 US 530; Buckley v Valeo, 424 US 1; Matter of Nicholson v State Commn. on Judicial Conduct, 50 NY2d 597.) II. The least restrictive means tests should be applied as a matter of State constitutional law. (Turner v Safley, 482 US —, 107 S Ct 2254; O’Lone v Estate of Shabazz, 482 US —, 107 S Ct 2400; Cooper v Morin, 49 NY2d 69; Bell v Wolfish, 441 US 520; People v Lewis, 68 NY2d 923; People v P. J. Video, 68 NY2d 296; People ex rel. Arcara v Cloud Books, 68 NY2d 553.) III. Defendants’ interests can be satisfied by less restrictive means. (Matter of Milburn v McNiff [Milburn III] 108 AD2d 860; Davidson v Scully, 694 F2d 50; Wolfish v Levi, 573 F2d 118, revd in part on other grounds sub nom. Bell v Wolfish, 441 US 520.) IV. Defendants’ regulations are not reasonably related to legitimate penological interests. (McNulty v Chinlund, 62 AD2d 682; Rodriguez v James, 823 F2d 8.)

      Robert Abrams, Attorney-General (Harvey M. Berman and O. Peter Sherwood of counsel), for respondents.
    I. The inmate correspondence regulations which plaintiff challenges do not violate his First Amendment rights under the United States Constitution. (Hudson v Palmer, 468 US 517; Pell v Procunier, 417 US 817; Turner v Safley, 482 US —, 107 S Ct 2254; O’Lone v Estate of Shabazz, 482 US —, 107 S Ct 2400; Matter of Milburn v McNiff [Milburn II] 91 AD2d 1024; Rodriguez v James, 823 F2d 8; Jones v North Carolina Prisoners’ Union,
      433 US 119; Procunier v Martinez, 416 US 396; Pell v Procunier, 417 US 817; Bell v Wolfish, 441 US 520.) II. The challenged regulations do not violate plaintiffs State constitutional rights. (Matter of Brown v McGinnis, 10 NY2d 531; Matter of Rivera v Smith, 63 NY2d 501; Pell v Procunier, 417 US 817; Cooper v Morin, 49 NY2d 69; Moore v Ciccone, 459 F2d 574; Smith v Robbins, 328 F Supp 162, 454 F2d 696; People v Whitaker, 64 NY2d 347.)
   OPINION OF THE COURT

Alexander, J.

This appeal involves a challenge to the constitutionality of certain regulations of the Department of Correctional Services governing inmate correspondence. The regulations — requiring that certain correspondence be submitted for mailing unsealed and subject to inspection, and that no material be included in an outgoing envelope if not specifically intended for the addressee — are said to impermissibly infringe upon the inmates’ freedom of expression.

Petitioner is an inmate at Green Haven Correctional Facility. On September 17, 1985, he submitted for mailing a sealed letter addressed to Time Life Books. The letter was returned to him by the prison correspondence department with a handwritten notation "Do not seal”. On November 8, 1985, petitioner submitted a letter addressed to Ms. Sheela Wood, and attached to the letter a disbursement form requesting that $1.50 be withdrawn from his inmate account and be made payable to Ms. Wood. This sum represented the fee charged by Ms. Wood for forwarding a letter to a person she had located who was interested in initiating pen pal correspondence. Petitioner did not seal the letter to Ms. Wood, but enclosed in her envelope a sealed letter intended for the potential correspondent. The envelope, its contents and attached form were returned to petitioner with a note indicating that the use of such a service was prohibited. In December 1985, in response to an advertisement in the classified section of a newspaper, petitioner submitted a sealed letter addressed to a post-office box number in care of the Middletown Times Herald Record. This letter also was returned with a note stating that it could not be sealed.

Petitioner contested the rejection of his letters through the appropriate grievance procedure. With respect to the first letter — addressed to Time Life Books — the administrative basis advanced for rejection by respondent, Department of Correctional Services, was that it violated 7 NYCRR 720.3 (e) (4), which provided, at the time, that all mail addressed to a business entity must be submitted unsealed and is subject to inspection. Respondent’s ultimate reason for rejecting the second letter — addressed to Ms. Wood — was that it violated 7 NYCRR 720.3 (b) (17), which states: "An inmate shall not include any written material in outgoing mail not specifically intended for the addressee identified on the exterior of the envelope * * * This practice, sometimes known as 'kiting’, may be the basis for disciplinary action.” Finally, the third letter — addressed to a post-office box in care of the Middle-town Times Herald Record — was rejected on administrative review because it was addressed to a box number located in the classified department of a newspaper, and therefore was regarded as business mail required to be submitted unsealed.

Petitioner instituted an article 78 proceeding challenging the constitutionality of the two regulations relied upon by respondent in rejecting the attempted correspondence. The thrust of petitioner’s claim is that the regulations impinge upon his First Amendment rights under the Federal and State Constitutions in that they chill speech by subjecting business mail to inspection, and foreclose all speech to certain individuals by effectively frustrating an inmate’s ability to respond to "personals” advertisements appearing in newspapers or magazines, or to engage the services of those who organize the establishment of pen pal correspondence.

Supreme Court dismissed the petition, finding any intrusion on the speech of inmates to be minimal and, in any event, justified by respondent’s legitimate interests in security, order and rehabilitation. After converting the proceeding to an action for declaratory judgment, the Appellate Division affirmed, holding that petitioner had "failed to establish that he has a 1st Amendment right to engage in business correspondence” (125 AD2d, at 572), that the regulations at issue are not content restrictions, and that petitioner’s First Amendment rights were therefore not implicated. That court concluded that the regulations were rational and furthered legitimate government objectives. We conclude, however, that the challenged regulations do implicate First Amendment interests, but that under the appropriate standard of review, the regulations do not unconstitutionally abridge petitioner’s right to freedom of expression. The order of the Appellate Division should therefore be modified accordingly.

Initially, we reaffirm the settled principle that while incarceration results in the withdrawal or limitation of many rights, inmates retain those rights guaranteed by the First Amendment, and may exercise them to the extent it would not be inconsistent with their status as prisoners and with the legitimate restrictions imposed by confinement (Turner v Safley, 482 US —, 107 S Ct 2254; Pell v Procunier, 417 US 817; Matter of Doe v Coughlin, 71 NY2d 48; Matter of Rivera v Smith, 63 NY2d 501). The conclusion of the Appellate Division that the regulations at issue do not implicate any First Amendment interests appears to be predicated upon the assumption that all speech addressed to a business entity is of a business or commercial nature not entitled to the benefit of First Amendment protection. It may no longer be disputed, however, that commercial speech — although not vested with full First Amendment stature — is entitled to a certain degree of protection (see, Central Hudson Gas & Elec. v Public Serv. Commn., 447 US 557, 561-562; Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748; Matter of von Wiegen, 63 NY2d 163, 170). More importantly, however, it is evident that not all letters addressed to a business enterprise necessarily contain only commercial speech. It is quite possible, as petitioner argues, that an inmate might write to a business entity concerning issues of a substantially political nature such as discrimination or environmental policies. Such speech unquestionably would be protected under the First Amendment (see, Buckley v Valeo, 424 US 1, 14; Roth v United States, 354 US 476, 484). A regulation requiring business mail to be submitted unsealed and subject to inspection, although not content-based (see, e.g., Wolff v McDonnell, 418 US 539, 576 [freedom from censorship not equivalent to freedom from inspection]), nonetheless may sufficiently chill free and open expression so as to implicate First Amendment concerns (see, Procunier v Martinez, 416 US 396, 423 [Marshall, J., concurring] [inmate’s free and open expression restrained by knowledge that every word may be read by jailors]). Although content-neutral, respondent’s prohibition on "kiting” restricts the manner of speech and therefore also implicates First Amendment interests (see, Heffron v International Socy. for Krishna Consciousness, 452 US 640; Consolidated Edison Co. v Public Serv. Commn., 447 US 530, 535; see generally, 3 Rotunda, Nowak and Young, Constitutional Law, Substance and Procedure § 20.47 [time, place, manner restraints]).

The standard for assessing the validity of prison regulations that infringe on inmates’ constitutional rights has been articulated by the Supreme Court as follows: "when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests” (Turner v Safley, 482 US —, 107 S Ct 2254, 2261, supra; see also, O’Lone v Estate of Shabazz, 482 US —, 107 S Ct 2400; Matter of Doe v Coughlin, 71 NY2d 48, supra). Factors identified as particularly pertinent to a determination of validity include: whether there is a logical connection between the prison regulation and the institution’s interest put forward to justify it; whether alternative means of exercising the right remain open to the inmates; whether accommodation of the asserted constitutional right will adversely impact on the prison population, correction employees, or on the allocation of prison resources; and whether there are alternatives available to prison authorities that adequately address the concerns advanced (see, Turner v Safley, 482 US —, 107 S Ct 2254, 2262, supra; O’Lone v Estate of Shabazz, 482 US —, 107 S Ct 2400, supra). With respect to this last factor, the Supreme Court has emphasized that the alternative selected need not be the "least restrictive alternative”, for "prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint” (Turner v Safley, 482 US —, 107 S Ct 2254, 2262, supra). Similarly, a State constitutional challenge to prison regulations requires a balancing of the competing interests at stake: the importance of the right asserted and the extent of the infringement are weighed against the institutional needs and objectives being promoted (see, Matter of Rivera v Smith, 63 NY2d 501, 511, supra; Cooper v Morin, 49 NY2d 69, 79; see, Matter of Doe v Coughlin, 71 NY2d 48, 68 [Alexander, J., dissenting], supra). Finally, in reaching the appropriate balance of factors under either the Federal or State approach, a measure of judicial deference is to be accorded the judgment of correction officials (Pell v Procunier, 417 US 817, 827, supra; People v Lewis, 68 NY2d 923; Matter of Rivera v Smith, 63 NY2d 501, 512-513, supra).

Applying these principles, we conclude that the regulations at issue pass constitutional scrutiny under both Federal and State Constitutions.

The challenged restrictions are to be viewed in light of the other regulations governing the inmate correspondence program, rather than in isolation (see, Pell v Procunier, 417 US 817, 823, supra). Under respondent’s program, inmates may submit personal mail addressed to identified individuals sealed, and such mail is not subject to opening and inspection without specific authorization from the Superintendent upon a finding of a reason to believe that some regulation has been violated (Directive No. 4422 § III [E]). Unlike personal mail, however, correspondence addressed to a business — other than the media under the amended regulations (see, n 1, supra)— must be submitted for mailing unsealed and is subject to inspection. The stated justification for this infringement on business mail is to enable correction officials to prevent inmates from ordering merchandise or services on credit. Indeed, any business mail that obligates an inmate’s funds must receive prior approval (7 NYCRR 720.3 [e] [1]; see, Rodriguez v James, 823 F2d 8, 10). Concomitantly, the regulation seeks to prevent inmates from committing fraud on businesses (see, Rodriguez v James, 823 F2d 8, 12, supra).

Recognizing that an "inmate who seeks to defraud a business is engaging in conduct that is both illegal and at odds with the rehabilitative goals of incarceration, [and that an] inmate who amasses large debts has not learned the financial responsibility that is essential for complete rehabilitation”, petitioner does not dispute that respondent has a substantial interest in preventing credit purchases (Rodriguez v James, 823 F2d 8, 12, supra; see also, Matter of Milburn v McNiff, 108 AD2d 860, 861, appeal discontinued 65 NY2d 812). Rather, petitioner argues that there is a less intrusive method of achieving this valid objective and presses us to adopt the alternative, suggested by the Appellate Division in Milburn, that the respondent simply stamp outgoing business mail with a disclaimer that credit purchases by inmates are illegal (108 AD2d, at 863, supra). While such a disclaimer presumably would discourage most merchants from extending credit to inmates, it fails to vindicate all of the interests asserted by respondent for the inspection requirement.

Initially, the disclaimer places the onus on the merchant to thwart illegal credit purchases. Yet, respondent has no guarantee that merchants — whose mail may be opened and screened in various ways — actually see the envelope. Hence, there is a greater risk that, despite the disclaimer, credit purchases may be extended. Even if the stamp were to deter the incidence of credit purchases with the same success as does inspection, attempts by inmates either to defraud or to spend beyond their means would go undetected. Thus, the proposed disclaimer would not satisfy respondent’s additional interest in knowing of the attempts. Finally, the disclaimer stamp may result in the unnecessary stigmatization of all business mail — even that containing political speech — and the attendant risk that merchants will presume that an envelope stamped with such a disclaimer contains an offer to purchase on credit and discard it.

Petitioner also contends that the amended regulation providing for a media exception5 allows credit purchases to be made surreptitiously from media entities, and is thus an indication that the justification for the inspection requirement is suspect. We view the amendment, however, as an attempt to circumscribe the intrusive effect of the inspection requirement and to accommodate the inmates’ freedom of expression by affording an alternative means of exercising that right (see, Jones v North Carolina Prisoners’ Union, 433 US 119, 131). Although the inspection requirement may chill in some measure an inmate’s freedom to express political views to business enterprises other than the media, the business mail regulation operates in a "neutral fashion, without regard to the content of the expression” (Turner v Safley, 482 US —, 107 S Ct 2254, 2262, supra; Pell v Procunier, 417 US 817, 828, supra; Bell v Wolfish, 441 US 520, 551). If the submitted letter does not offer to purchase on credit or otherwise impermissibly obligate an inmate’s funds, it is dispatched. We conclude that respondent’s business regulation as amended is reasonably related to legitimate penological purposes and is therefore valid.

The asserted rationale for the prohibition on "kiting” mail (7 NYCRR 720.3 [b] [17]) is that it serves to enforce other regulations that prohibit or restrict correspondence with certain individuals. For example, inmates are not permitted to write to those who have requested that they not receive any mail from inmates (7 NYCRR 720.3 [b] [l]-[4]), and prior approval is required to correspond with unrelated persons under the age of 18 years, persons on probation or under parole supervision, and persons confined in other correctional facilities (7 NYCRR 720.3 [b] [5]). To allow inmates to "kite” out mail would enable them to conduct unauthorized correspondence with such individuals. Thus, the "kiting” regulation simply requires that any letter in the envelope be intended for the addressee. Petitioner’s complaint that this precludes him from answering "personals” advertisements that request a response to be sent in care of the newspaper or magazine, and from engaging the service of pen pal correspondence programs, is unavailing inasmuch as these practices are precisely what respondent seeks to prevent — unauthorized communication with unidentified individuals. That inmates may circumvent this regulation by resorting to sealed mail privileges does not establish that the prohibition against "kiting” is unreasonable. Indeed, if respondent has a reasonable belief that an inmate is "kiting” mail through sealed general correspondence, the mail may be opened and inspected. Respondent has asserted a legitimate penological goal in requiring that inmates correspond with identified individuals (Turner v Safley, 482 US —, 107 S Ct 2254, 2263-2264, supra; Jones v North Carolina Prisoners’ Union, 433 US 119, supra). We conclude that the "kiting” regulation is reasonably related to this legitimate penological purpose.

Accordingly, the order of the Appellate Division should be modified to the extent of declaring that the challenged regulations do implicate First Amendment interests, but that under the appropriate standard of review, the regulations do not unconstitutionally abridge petitioner’s right to freedom of expression, and as so modified, affirmed.

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

Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.

      . During this litigation, the regulations were amended to provide that mail addressed to the media may be submitted for mailing sealed (7 NYCRR 720.3 [e] [5]), and that all business mail, "except business mail addressed to the media” must be submitted by the inmate unsealed (7 NYCRR 720.3 [e] [4]). Respondent concedes that under the amended regulation, petitioner’s letter to Time Life Books would fall within the so-called "media exception” and would be dispatched sealed. Thus, petitioner’s grievance with respect to this letter has been rendered moot. However, inasmuch as respondent has invoked the business mail regulation to sustain its rejection of petitioner’s third letter — to a post-office box in care of the Middletown Times Herald Record — we address petitioner’s constitutional challenge to that regulation.

      . Respondent originally cited 7 NYCRR 720.3 (b) (13), which prohibits an inmate’s use of correspondence to solicit for money, services or goods. Final administrative review, however, relied on section 720.3 (b) (17).

      . The initial administrative determination was that the letter was addressed to a box number without a specifically identified addressee in violation of 7 NYCRR 720.3 (b) (15), which provides that "[i]nmates shall not submit correspondence to be sent to a post-office box without a specifically identified addressee; the addressee (either a person or a business) shall be clearly identified”. Under the amended regulations (see, n 1), this letter nevertheless would be required to be submitted unsealed in accordance with 7 NYCRR 720.3 (e) (6), which states that "mail addressed to a box number in care of a media entity shall not be considered to be mail addressed to the media”.

      . We reject petitioner’s urging that the heightened standard articulated in Procunier v Martinez (416 US 396) is applicable here. Unlike the regulations challenged on this appeal, Martinez involved regulations authorizing content-based mail censorship.

        . In Milburn — decided prior to the amendment of the regulations and Turner v Safley (482 US —, 107 S Ct 2254) — the Appellate Division, applying the Procunier v Martinez standard, held that respondent’s regulation requiring all business mail to be submitted and subject to inspection was not the least restrictive means of furthering the governmental interest of preventing the obligation of inmate funds (Matter of Milburn v McNiff, 108 AD2d 860, 862, appeal discontinued 65 NY2d 812).

      . We note that "media” is nowhere defined in the regulations.