author: Kaye, J.

text:
    Consolidated Edison Company of New York, Inc., Appellant, v Town of Red Hook et al., Respondents, and Mid-Hudson Nuclear Opponents, Inc., et al., Intervenors-Respondents.
    Argued September 15, 1983;
    decided October 25, 1983

      POINTS OF COUNSEL

      Garrett E. Austin, Ernest J. Williams and Michael A. Wilcken for appellant.
    I. Pre-emption under article VIII of the Public Service Law extends to all aspects of power plant siting including preapplication site studies. The Red Hook local law intrudes into that area and thus is preempted by article VIII. (Koch v Dyson, 85 AD2d 346; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347; People v De Jesus, 54 NY2d 465.) II. The court below erred in determining that the Red Hook local law is not inconsistent with article VIII of the Public Service Law. (Matter of Kress & Co. v Department of Health, 283 NY 55; People v County of Westchester, 282 NY 224; Wholesale Laundry Bd. of Trade v City of New York, 17 AD2d 327, 12 NY2d 998; Jewish Consumptives’ Relief Soc. v Town of Woodbury, 230 App Div 228, 256 NY 619.) III. The fees imposed by the Red Hook local law constitute an unauthorized tax. The court below erred in ruling that the recent amendment to the local law rendered all questions as to the legality thereof academic. (Jewish Reconstructionist Synagogue v Incorporated Vil. of Roslyn Harbor, 40 NY2d 158; Matter of Torsoe Bros. Constr. Corp. v Board of Trustees, 49 AD2d 461; Bon Air Estates v Village of Suffern, 32 AD2d 921; Alderstein v City of New York, 11 Misc 2d 754, 6 NY2d 740; Matter of Hanson v Griffiths, 204 Misc 736.) IV. Assuming, arguendo, that Red Hook’s Power Plant Site Study Law has not been pre-empted, that law is nevertheless invalid because it establishes license application requirements that are impossible to comply with and inconsistent with State law.

      James R. Loeb and Donald H. McCann for respondents.
    I. Local Law No. 2 of 1978, as amended, is a valid exercise of local law power and it is entitled to a presumption of validity. (Lighthouse Shores v Town of Islip, 41 NY2d 7; Klimek v Town of Ghent, 71 AD2d 359.) II. Local Law No. 2 of 1978, as amended, is consistent with article VIII of the Public Service Law of the State of New York. (People v De Jesus, 54 NY2d 465; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347; People v County of Westchester, 282 NY 224; Wholesale Laundry Bd. of Trade v City of New York, 17 AD2d 327.) III. The fees imposed by Local Law No. 2 of 1978, as amended, are proper. IV. The provisions of the Town of Red Hook Local Law No. 2 of 1978, as amended, create a statutory scheme which is both reasonable and rational. (Lighthouse Shores v Town of Islip, 41 NY2d 7.)

      Richard I. Cantor and Noel Tepper for intervenors-respondents.
    I. The court should, in its determination, distinguish between the issue of pre-emption and the issue of the sufficiency of the particular law being challenged. II. The local law at issue on this appeal is not pre-empted by State legislation. (Matter of Consolidated Edison Co. v Hoffman, 54 AD2d 761.)

      David E. Blabey and Jonathan D. Feinberg for the Department of Public Service of the State of New York, amicus curiae.

    I. The ordinance conflicts with State law requiring site studies for power plant licensing and is, therefore, pre-empted. (Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347; People v De Jesus, 54 NY2d 465; Koch v Dyson, 85 AD2d 346; Matter of Kress

      & Co. v Department of Health, 283 NY 55; Jewish Consumptives’ Relief Soc. v Town of Woodbury, 230 App Div 228, 256 NY 619; F.T.B. Realty Corp. v Goodman, 300 NY 140; Wholesale Laundry Bd. of Trade v City of New York, 17 AD2d 237,12 NY2d 998.) II. The ordinance is not within the town’s police powers since it has no rational relationship to the protection of the public health, safety or welfare. (Matter of Consolidated Edison Co. v Hoffman, 54 AD2d 761; People v Cook, 34 NY2d 100; Good Humor Corp. v City of New York, 290 NY 312; Matter of Niagara Mohawk Power Corp. v City of Fulton, 8 AD2d 523; Matter of Long Is. Water Corp. v Michaelis, 28 AD2d 887; Matter of Long Is. Light. Co. v Horn, 23 AD2d 583.)
   OPINION OF THE COURT

Kaye, J.

In March, 1978, after more than a year of preliminary investigation, plaintiff, Consolidated Edison, announced that its engineers had recommended two sites in the mid-Hudson region for new major power plant facilities. One of the proposed sites was partly within the Town of Red Hook. In swift response to the announcement, defendants, the Town of Red Hook and its town board, in May, 1978 enacted Local Law No. 2, requiring a license from the town board to begin a site study. License applicants were required to pay a fee and submit detailed data, and their applications could in any event be rejected if their contemplated activities were detrimental to town property, residents, wild life or ecology, or simply inconsistent with the town’s land use plan and zoning regulations.

The question on this appeal is whether Local Law No. 2 is invalid, either because the State Legislature, by article VIII of the Public Service Law, has pre-empted the field of regulation concerning the siting of major steam power plants, or because the local law is inconsistent with the State statute. The issue arises in the context of an action for a judgment declaring Local Law No. 2 invalid insofar as it applies to major steam electric generating facilities as that term is defined in the Public Service Law, and enjoining defendants from enforcing the local law.

I

Article VIII of the Public Service Law (“Siting of Major Steam Electric Generating Facilities”), enacted in 1972, sets up a State board on electric generation siting and the environment (the Siting Board), which must certify all new major steam electric generating facilities. Generally, article VIII provides that all interests involved in the decision as to where such facilities should be located (including the interests of localities such as Red Hook) are to be balanced by one decision-maker, the Siting Board, in one proceeding, an application before that board. Specifically, the statute provides that no person is to prepare a site for or construct a major steam electric generating facility without obtaining a certificate from the board (Public Service Law, § 141); that a person proposing to apply for a certificate may consult with State agency staffs as to preapplication procedures, including studies of prospective sites (Public Service Law, § 141-a); that a detailed application must be filed with the Siting Board, describing the proposed site, the proposed facility, and studies conducted on the site (Public Service Law, § 142); that the Siting Board will conduct a hearing on an application at which various interests, including those of municipalities, may be represented (Public Service Law, §§ 143-145); that the board will render a final decision and issue an opinion stating the reasons for any action taken (Public Service Law, §§ 146-147); that an aggrieved party may apply for rehearing or judicial review (Public Service Law, §§ 148-149); and that no municipality may require any approval or other condition for the construction or operation of a major steam facility where an application for a certificate has been filed (Public Service Law, § 149-a).

Under defendants’ Local Law No. 2 (“Power Plant Site Study Law of the Town of Red Hook”), no person can begin or allow a site study for a power plant within the Town of Red Hook without first obtaining a license from the town board. An applicant must pay a fee and, pursuant to subdivision (A) of section 5, submit a detailed application including information related to the proposed site study and operating facility, and the effect of each upon property values. Even if such information requirements are satisfied, however, in section 6 the town reserves the unfettered right to deny the application where the activities contemplated by the applicant are “detrimental to the affected properties, landowners, residents * * * wild life and the general ecology of the proposed site area to be studied,” or are “inconsistent with, the overall comprehensive plan for land use previously formulated by the town and its current zoning law and regulations.”

II

On plaintiff’s motion for summary judgment, Special Term found the local law a valid exercise of the town’s authority under the New York State Constitution and the Municipal Home Rule Law, and the Appellate Division affirmed. Both courts relied for their conclusion on section 149-a of the Public Service Law, reasoning that, since section 149-a only precludes a municipality from imposing conditions on the construction or operation of a major steam facility with respect to which an application for a certificate has been filed, the regulatory scheme of article VIII does not come into play until an application is actually filed with the Siting Board.

We do not agree that this mechanical division can be made.

As applied to site studies for major steam electric generating plants, Local Law No. 2 is invalid for two reasons. First, it imposes, an additional layer of regulation in an area where the Legislature has evidenced its intent to preempt the field of regulation. Second, it is inconsistent with article VIII of the Public Service Law, a general law. While these two infirmities are often interrelated, each is in itself a sufficient basis for invalidating a local law (Myerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250, 255), and each is applicable here.

Ill

Local Law No. 2 is invalid because the Legislature has pre-empted such local regulation in the field of siting of major steam electric generating plants. The intent to preempt need not be express. It is enough that the Legislature has impliedly evinced its desire to do so. (People v New York Trap Rock Corp., 57 NY2d 371, 378; Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679, 683; People v Cook, 34 NY2d 100, 109.) A desire to preempt may be implied from a declaration of State policy by the Legislature (Robin v Incorporated Vil. of Hempstead, 30 NY2d 347, 350-351) or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area. (People v De Jesus, 54 NY2d 465, 469.) Here both apply.

In its declaration accompanying the original enactment of article VIII, the Legislature stated that the existing practice of un-co-ordinated regulation had resulted in “delays in new construction and increases in cost which are eventually passed on to the people of the state in the form of higher utility rates”, and that “there is a need for the state to control determinations regarding the proposed siting of major steam electric generating facilities within the state”. (L 1972, ch 385, § 1.) The purpose of article VIII was expressly “to provide for the expeditious resolution of all matters concerning the location of major steam electric generating facilities presently under the jurisdiction of multiple state and Ideal agencies, including all matters of state and local law, in a single proceeding”. (L 1972, ch 385, § 1.) In approving the bill, Governor Rockefeller noted that “the establishment of a unified certificating procedure under the jurisdiction of the new State Board” was to “replace the current uncoordinated welter of approvals, procedures and agencies that have virtually paralyzed the construction of needed new power plants.” (McKinney’s Session Laws of NY, 1972, p 3391.)

When article VIII was re-enacted in 1978, the Legislature again asserted that its purpose was to have the Siting Board balance all interests, including local interests, on a State-wide basis in a single proceeding. (L 1978, ch 708, § 1.) In approving re-enactment of article VIII, Governor Carey stressed the importance of a “one-stop certification” procedure, to expedite the licensing process yet insure maximum public participation in the determination of steam facility siting. (McKinney’s Session Laws of NY, 1978, p 1838.)

This purpose is further reflected in the provisions of article VIII, which reach beyond the date an application is filed and beyond the Siting Board. Prospective applicants are encouraged to consult State agency staffs regarding preapplication site studies (Public Service Law, § 141-a). Applicants are instructed to request exceptions or variances from municipal regulations (Public Service Law, § 142, subd 1, par [c]). The Siting Board is required to determine whether any municipal laws or regulations governing the construction or operation of a proposed generating facility are unreasonably restrictive, and has the power to waive compliance with such municipal regulations (Public Service Law, § 146, subd 2, par [d]). Legislative intent to pre-empt further regulation is also borne out by the detailed nature of the regulatory scheme under article VIII and the regulations promulgated thereunder (16 NYCRR parts 72-80), which require information to be gathered in carefully prescribed site studies prior to the filing of an application.

Thus, the history and scope of article VIII, as well as its comprehensive regulatory scheme, evidence the Legislature’s desire to pre-empt further regulation' in the field of major steam electric generating facility siting, a desire that would be frustrated by laws such as Local Law No. 2. “Such State policy being expressed, a village or other municipality lacks authority to deal with the matter ‘ “unless it is specifically empowered so to do in terms clear and explicit.” ’ ” (Robin v Incorporated Vil. of Hempstead, 30 NY2d 347, 350-351, supra; Jewish Consumptives’ Relief Soc. v Town of Woodbury, 230 App Div 228, 234, affd 256 NY 619.) There has been no such authority delegated to defendants to ignore the State policy here. In light of this pre-emption, defendants had no power to adopt additional requirements or require additional permits relating to such siting. (Matter of Kress & Co. v Department of Health, 283 NY 55, 59.)

IV

Even if the Legislature had not pre-empted the field of regulations, defendants’ authority to enact local laws under the Constitution or the Municipal Home Rule Law is conditioned on the exercise of such authority not being inconsistent with any State enactment. (People v De Jesus, 54 NY2d 465, 468, supra; McMillen v Browne, 14 NY2d 326, 331.) Here, the provisions of Local Law No. 2 affecting power plant studies are inconsistent with article VIII of the Public Service Law, which is a general law relating to matters of substantial State concern. (Cf. County of Orange v Public Serv. Comm., 39 AD2d 311, 317, affd 31 NY2d 843.) Therefore, Local Law No. 2 is invalid for the additional reason that it is inconsistent with State law.

Preliminary site studies are necessary for an application to be made under article VIII. Section 142 of the Public Service Law requires that an application to the Siting Board contain information and materials relating to the site and the facility to be built thereon, including studies which have been made of the expected environmental impact and safety of the facility, during both its construction and its operation. The regulations implementing section 142 contain further exacting information requirements that call for prescribed studies to be undertaken before an application for a certificate under article VIII can be filed. (16 NYCRR parts 72-80.)

Local Law No. 2, which adds further restrictions to an applicant’s ability to conduct the site studies required by article VIII and — most significantly — allows the town to prohibit such studies altogether, is inconsistent with State law. Inconsistency is not limited to cases of express conflict between State and local laws. (People v De Jesus, 54 NY2d 465, 468, supra.) It has been found where local laws prohibit what would be permissible under State law (Wholesale Laundry Bd. of Trade v City of New York, 17 AD2d 327, 329-330,18 AD2d 968, affd 12 NY2d 998, on opn at 17 AD2d 327), or impose “prerequisite ‘additional restrictions’ ” on rights under State law (F. T. B. Realty Corp. v Goodman, 300 NY 140, 147-148), so as to inhibit the operation of the State’s general laws. (Matter of Marcus v Baron, 57 NY2d 862; Floyd v New York State Urban Dev. Corp., 33 NY2d 1, 7.) Local Law No. 2 is by these standards inconsistent with State law and therefore invalid.

V

Defendants have, in effect, arrogated to themselves the power to determine, solely on the basis of local concerns, whether the site studies required for facilities within article VIII of the Public Service Law can be conducted. Local Law No. 2, and laws like it, would enable local communities to keep applications for major steam electric generating facilities from ever being filed with the Siting Board. This they cannot do. Once the Legislature has set down the factors to be considered in determining the siting of proposed major steam electric generating facilities and the forum where such determinations are to be made, defendants cannot by local law abort that plan.

In view of our conclusion that the provisions of section 6 of Local Law No. 2 allowing defendants to prevent power plant site studies are invalid when applied to site studies for major steam electric generating facilities, it is unnecessary to entertain plaintiff’s further arguments that the few remaining provisions of Local Law No. 2, relating to fees and information requirements, are also invalid. There is no basis for severing such provisions and the law as a whole must be declared invalid when applied to studies contemplated by article VIII of the Public Service Law. (F. T. B. Realty Corp. v Goodman, 300 NY 140,148, supra; Matter of McCabe v Voorhis, 243 NY 401, 416.)

For the reasons stated above, the order of the Appellate Division should be reversed, with costs to appellant, those portions of Local Law No. 2 not previously invalidated declared invalid as applied to siting studies for major steam electric generating facilities under article VIII of the Public Service Law, and defendants enjoined from enforcing those provisions with respect to such studies.

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

Order reversed, with costs, and judgment granted in favor of plaintiff in accordance with the opinion herein.

      . Section 8 of chapter 385 of the Laws of 1972 provided that article VIII would expire on January 1, 1979. In August, 1978, the Public Service Law was amended by adding a new article VIII, which was essentially similar to its predecessor. (L 1978, ch 709, § 2.)

      . While the local law was upheld below, certain portions of subdivision (A) of section 5 were stricken. As enacted, subdivision (A) of section 5 required an applicant to provide the town board with 25 categories of data relating to the applicant’s contemplated power plant and the impact its activities might have on the town", to justify its selection of the town as the potential site, and to demonstrate that areas closer to the applicant’s service territory were not better suited for the project.
      Special Term found 20 of the 25 information requests to be invalid as lacking in “requisite rationality” and “inconsistent with State policy.” As so limited, subdivision (A) of section 5 requires an applicant to provide the town board with a map of the area in which site studies will be conducted, a time schedule for the studies, and a detailed listing of the specific studies that will be conducted in each area, to procure liability insurance for any damage to private property caused by the site studies and to name the Town of Red Hook as an insured party in that policy, and to inform the town board of the applicant’s policy with respect to guaranteeing payments in lieu of taxes if a Federal or State agency assumes ownership of the applicant’s contemplated power plant.

      . On the heels of the enactment of Local Law No. 2, a neighboring town adopted a similar regulation. Obviously, the proliferation of such local laws would lead to the very “uncoordinated welter of approvals” article VIII was meant to replace, and thereby defeat the purpose and operation of the State regulatory scheme.


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Julio Rivera, Appellant.
    Argued September 19, 1983;
    decided October 27, 1983

      POINTS OF COUNSEL

      Michael P. Joseph for appellant.
    Statutory and constitutional double jeopardy provisions prohibit the People from prosecuting Rivera for the crime of murder in the second degree in that he has previously been prosecuted and acquitted for the crimes of attempted murder and assault arising from the same criminal transaction. (Benton v Maryland, 395 US 784; Matter of Abraham v Justices of N. Y. Supreme Ct., 37 NY2d 560; People v Abbamonte, 43 NY2d 74; Matter of Wiley v Altman, 52 NY2d 410; Matter of Auer v Smith, 77 AD2d 172; People v Fernandez, 43 AD2d 83; Diaz v United States, 223 US 442.)

      Mario Merola, District Attorney (Stuart L. Sanders and Peter D. Coddington of counsel), for respondent.
    Appellant, who stands convicted of reckless endangerment in the first degree, thus establishing beyond a reasonable doubt that he recklessly created a grave risk of death for his victim under circumstances evincing a depraved indifference to human life, may now be properly prosecuted for murder in the second degree, under the same theory of recklessness and depraved indifference, since his victim’s death followed the conclusion of the first trial, and resulted from the same criminal conduct which constituted the reckless endangerment. (People v Figueroa, 73 AD2d 674, 49 NY2d 893; People v Glover, 57 NY2d 61; People v Green, 56 NY2d 427; People v Lau, 88 AD2d 808, 57 NY2d 678; Illinois v Vitale, 447 US 410; Brown v Ohio, 432 US 161; Jeffers v United States, 432 US 137; People v Fletcher, 113 Misc 2d 5; Ashe v Swenson, 397 US 436; Benton v Maryland, 395 US 784.)
   OPINION OF THE COURT

Simons, J.

Defendant was tried previously on charges of attempted intentional murder (Penal Law, §§ 110.00, 125.25), intentional assault (Penal Law, § 120.10), reckless endangerment (Penal Law, § 120.25) and criminal possession of a weapon (Penal Law, § 265.01). He was convicted of reckless endangerment and criminal possession of a weapon. After the trial, the victim died and defendant was indicted for depraved mind murder (Penal Law, § 125.25, subd 2). He has moved to dismiss the murder indictment claiming that this subsequent prosecution is barred. The People rely upon CPL 40.20 (subd 2, par [d]). It permits a second prosecution as an exception to the prohibition against separate prosecutions for two offenses based on the same act or criminal transaction, in cases of delayed death where the victim subsequently dies from the physical injuries resulting from the “assault or * * * other offense” for which the assailant was previously prosecuted.

In July, 1976, defendant Rivera and his codefendant, Suarez, were indicted in Bronx County for attempted murder in the second degree, intentional assault in the first

degree, reckless endangerment in the first degree and criminal possession of a weapon in the fourth degree. The indictment alleged that on July 6, 1976 defendants beat Felix Fonseca about the head with pipes, causing him to lapse into a coma. The attempted intentional murder count was dismissed by the court at the close of the People’s case because the People’s proof was insufficient to establish an intent to kill Fonseca. The remaining counts were submitted to the jury and it returned a verdict acquitting both defendants of the intentional assault count but convicting them of reckless endangerment in the first degree and criminal possession of a weapon in the fourth degree.

Nearly four years later, in November, 1980, Felix Fonseca died. Defendant and Suarez were again indicted in Bronx County, but this time they were indicted for the crime of murder in the second degree arising from the alleged reckless killing of Fonseca under circumstances evincing a depraved indifference to human life. Defendant moved to dismiss the indictment on double jeopardy and statutory grounds. He contended that the doctrine of collateral estoppel also precluded a prosecution for murder because his acquittal of assault and attempted murder and conviction only for reckless endangerment in the initial prosecution contained an implicit finding by the jury that he had not caused any physical injury to the victim.

The trial court dismissed the indictment holding that reckless endangerment in the first degree requires proof of the same elements as depraved mind murder and that the two crimes were substantially the “same offense”. In reaching this result, the court also invoked the mandatory joinder provision of CPL 40.40 and ruled that the People could not prosecute defendant for depraved mind murder because a charge of reckless assault in the first degree, a lesser included offense of depraved mind murder, had not been joined in the initial indictment. It did not address defendant’s collateral estoppel argument. The Appellate Division unanimously reversed the order of dismissal and reinstated the indictment.

On this appeal defendant maintains that a subsequent prosecution for murder is permissible in cases of delayed death only when an earlier prosecution results in a conviction of assault (not when it results in an acquittal of assault), and he renews his arguments concerning collateral estoppel and the mandatory joinder provisions of CPL 40.40.

It is a fundamental principle of our constitutional system that a defendant may not be placed twice in jeopardy for the same offense (US Const, 5th Arndt; NY Const, art I, § 6). The Legislature, however, has extended the constitutional protections further by enactment of CPL 40.20 (subd 1) which prohibits a second prosecution arising from the same transaction as an earlier one (see Matter of Abraham v Justices of N. Y. Supreme Ct., 37 NY2d 560). This statutory prohibition against separately prosecuting a person for the same offense was enacted primarily to supersede the “dual sovereignties” doctrine which permitted successive State and Federal prosecutions based on the same transaction or conduct and it extended protection for second prosecutions beyond that required by the constitutional double jeopardy clause (see People v Abbamonte, 43 NY2d 74, 81; Matter of Abraham v Justices of N. Y. Supreme Ct., supra). Recognizing that the general rule barring subsequent prosecutions was too broad, however, the Legislature added to the statute six exceptions in which a second prosecution is expressly permitted (CPL 40.20, subd 2, pars [a]-[f]; see, also, ALI Model Penal Code, Proposed Official Draft [1962], §§ 1.09, 1.10). Relevant here is the fourth of these which deals with cases of delayed death and is found in paragraph (d). It authorizes a second prosecution when: “One of the offenses is assault or . some other offense resulting in physical injury to a person, and the other offense is one of homicide based upon the death of such person from the same physical injury, and such death occurs after a prosecution for the assault or other nonhomicide offense.”

The need for the exception is obvious. It is impossible to prosecute anyone for homicide until the victim is dead and death which occurs subsequent to trial of one of the offenses within the reach of the statute is a supervening fact which creates a new offense which was not chargeable originally. Thus, charging defendant with murder for a death occurring after the first conviction arising out of the injury does not place him in jeopardy twice (see Diaz v United States, 223 US 442).

Moreover, there are sound policy reasons why this should be so. The defendant should be tried as soon as possible for offenses already consummated — the death did not occur until almost four years later in this case — while the evidence is available and witnesses’ recollections fresh. If he is guilty he should be punished promptly. Conversely, if he is innocent he should not be held for lengthy periods until the full consequences of his conduct are known.

Turning to the language of the exception, it permits a subsequent prosecution for death occurring after a prosecution for assault or some other offense resulting in physical injury. The offenses involved in the initial prosecution of defendant were assault and reckless endangerment. Both are consistent with physical injury (see People v Figueroa, 73 AD2d 674, 675, mot for lv to app den 49 NY2d 893), and although physical injury is not an element of reckless endangerment, the evidence established that in this instance physical injury resulted from the prior reckless endangerment and that is sufficient. Accordingly, both the assault and reckless endangerment offenses are encompassed within the statutory language. The statutory requirements having been met, it is irrelevant that the crime charged in the prior prosecution is based on the same act or transaction, contains similar elements to that crime subsequently charged or whether it resulted in conviction or acquittal (see Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 40.20, p 249; see, generally, Former Acquittal-Homicide-Assault, Ann., 37 ALR2d 1068, 1072, and 37 ALR2d Later Case Service, p 166; Homicide-Former Jeopardy, Ann., 11 ALR3d 834). This follows logically because the rationale underlying the exception is that the two prosecutions are for different crimes. The point is illustrated in Diaz v United States (223 US 442, supra), in which the defendant was tried and convicted of assault and subsequently prosecuted for murder when his victim died. In holding the subsequent murder prosecution permissible, the Supreme Court noted that while assault and homicide shared many common elements, the principal element of death distinguished them. Indeed, the homicide offense was not consummated and subject to prosecution until the moment of death. .

To be compared and distinguished are cases in which the prosecution was not delayed because the victim remained alive, cases in which the more serious crime could have been prosecuted from the outset (see, e.g., Illinois v Vitale, 447 US 410; Brown v Ohio, 432 US 161). In those circumstances, subsequent prosecution is barred by the constitutional prohibition against double jeopardy if every element of the lesser offense of which defendant has been convicted is also included in the greater offense (Blockburger v United States, 284 US 299). This was the rule which persuaded the trial court that the statutory exception did not permit the second prosecution here. Noting that all the elements of reckless endangerment first degree were to be found in depraved mind murder, it held the two were in reality the same offense. The reasoning of the Diaz case sets forth the exception for delayed death cases, however (see, also, Illinois v Vitale, supra, at p 420, n 8; Brown v Ohio, supra, at p 169, n 7), and the trial court’s contrary holding permits the rule against a second prosecution set forth in section 40.20 (subd 1) to swallow up the exception the Legislature intended.

Defendant’s collateral estoppel point is based upon his contention that a finding that defendant did not cause physical injury to the victim is implicit in the termination of the assault and attempted murder charges favorably to him. We find the argument unpersuasive. The jury which acquitted defendant of intentional assault but convicted him of reckless endangerment could reasonably have based its verdict upon the different mens rea elements of those crimes, rather than on the issue of whether defendant and Suarez injured Felix Fonseca (see Ashe v Swenson, 397 US 436, 443-444; Matter of McGrath v Gold, 36 NY2d 406, 411).

Finally, defendant contends that the prosecution for depraved mind murder, which involves reckless conduct, violates the statutory provision that every joinable offense must be prosecuted in the same indictment because a charge of reckless assault in the first degree was not included in the initial indictment. Manifestly, the joinder section is not applicable because defendant is currently charged with murder, not reckless assault. At the time the initial prosecution was brought, the People did not charge murder because the victim had not expired, the offense had thus not been consummated, and, consequently, legally sufficient evidence for the charge did not yet exist.

In sum, the prosecution is permitted by the language of the exception set forth in section 40.20 (subd 2, par [d]) and there is no violation of the second prosecution provision. The new offense is one of homicide, arising from the death of the victim from the same injury which resulted from the offense prosecuted. Thus, the only factor distinguishing the depraved mind murder prosecution from the prior charge of reckless endangerment, was the delayed death. The statutory exception was designed to encompass that event, and it applies here.

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

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

Order affirmed.

      . Section .125.25 of the Penal Law provides:
      “A person is guilty of murder in the second degree when: * * *
      “2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person”.

      . Section 120.25 of the Penal Law provides: “A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates, a grave risk of death to another person.”

      . The charges against Suarez are not before us.

      . It is not necessary to our decision to resolve how the statute applies to the dismissed count of attempted murder and since the parties have not addressed the issue, we have not decided it.

      . CPL 40.40 provides:
      “1. Where two or more offenses are joinable in a single accusatory instrument against a person by reason of being based upon the same criminal transaction, pursuant to paragraph (a) of subdivision two of section 200.20, such person may not, under circumstances prescribed in this section, be separately prosecuted for such offenses even though such separate prosecutions are not otherwise barred by any other section of this article.
      “2. When (a) one of two or more joinable offenses of the kind specified in subdivision one is charged in an accusatory instrument, and (b) another is not charged therein, or in any other accusatory instrument filed in the same court, despite possession by the people of evidence legally sufficient to support a conviction of the defendant for such uncharged offense, and (c) either a trial of the existing accusatory instrument is commenced or the action thereon is disposed of by a plea of guilty, any subsequent prosecution for the uncharged offense is thereby barred.
      “3. When (a) two or more of such offenses are charged in separate accusatory instruments filed in the same court, and (b) an application by the defendant for consolidation thereof for trial purposes, pursuant to subdivision five of section 200.20 or section 100.45, is improperly denied, the commencement of a trial of one such accusatory instrument bars any subsequent prosecution upon any of the other accusatory instruments with respect to any such offense.”


author: Jones, J.

text:
    The People of the State of New York, Respondent, v Santos Torres, Appellant.
    Argued September 22, 1983;
    decided October 27, 1983

      POINTS OF COUNSEL

      Claudia Van Wyk and William E. Hellerstein for appellant.
    I. The State deprived appellant of his rights under the Interstate Agreement on Detainers by failing to bring him to trial for more than 180 days after he requested disposition of this case. (United States v Ford, 550 F2d 732, affd sub nom. United States v Mauro, 436 US 340; People v Hayden, 98 Misc 2d 574; Stroble v Anderson, 587 F2d 830; People v Chiofalo, 73 AD2d 673; People v Squitieri, 91 Misc 2d 290; People v Miller, 34 NY2d 336; People v Diaz, 94 Misc 2d 1010; People v McBride, 44 NY2d 1001; People v Berkowitz, 50 NY2d 333; People v Saunders, 84 Misc 2d 467.) II. Admission of appellant’s unconstitutionally obtained statement was not harmless beyond a reasonable doubt where it was the most detailed statement and the only one describing a death in the course of the robbery. (People v Rogers, 48 NY2d 167; People v Crimmins, 36 NY2d 230; People v Schaeffer, 56 NY2d 448; People v Prince, 50 NY2d 883; People v Williams, 56 NY2d 236; Chapman v California, 386 US 18.)

      John J. Santucci, District Attorney {Merri Turk Lasky and Richard G. Denzer of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. II. Defendant was not deprived of his rights under the Interstate Agreement on Detainers. (People v White, 33 AD2d 217; People v Cook, 63 AD2d 841; People v White, 51 AD2d 221; Stroble v Anderson, 587 F2d 830; People ex rel. Kendall v Follette, 47 AD2d 546; People v Mollette, 87 Misc 2d 236.) III. The reception in evidence of defendant’s statement to Detective Saia was harmless error. (People v Rogers, 48 NY2d 167; People v Garofolo, 46 NY2d 592; People v Bevilacqua, 45 NY2d 508; People v Pinzon, 44 NY2d 458; People v Schaeffer, 56 NY2d 448; People v Williams, 56 NY2d 236; Chapman v California, 386 US 18; Fahy v Connecticut, 375 US 85; People v Almestica, 42 NY2d 222; People v Crimmins, 36 NY2d 230.)
   OPINION OF THE COURT

Jones, J.

The 180-day period for trial of charges against one who has served a request for final disposition thereof pursuant to the Interstate Agreement on Detainers is not tolled during the period of his detention in another county for prosecution on a charge pending in that county; some of that period will be excluded, however, if it may properly be attributed to the disposition of an omnibus motion made by the defendant with respect to the charges in the first county. The making of a suppression motion does not operate to deprive a defendant of his right to a prompt trial under the Interstate Agreement. Finally, it is not harmless error to refuse to suppress a statement concerning the death of a victim of a homicide obtained from a defendant in violation of his right to counsel when that statement, although in some respects similar to one made to and testified to by another witness, contains a more detailed and more damaging account of the event as well as of his incriminating conduct thereafter.

Defendant appeals from a judgment of conviction of the crimes of murder in the second degree, robbery in the first degree and criminal possession of a weapon in the second degree which arose out of the death of Sebastian Lopez on June 30, 1978. He contends that it was error not to have granted his motion to dismiss the prosecution because his trial had not been brought on within 180 days after his request for final disposition pursuant to the Interstate Agreement on Detainers (contained in CPL 580.20). Additionally, he claims that it was error for the court to have denied his motion to suppress testimony by Detective Bruno Saia, a New York City police officer, relating a statement obtained from defendant in violation of his right to counsel. The prosecution agrees that the statement should have been suppressed, but contends that its introduction was nonetheless harmless error in light of testimony given on trial by defendant’s sister, a contention accepted by the court below in affirming the judgment of conviction.

Concluding that this error was not harmless, we reverse the order of the Appellate Division. Because the determination whether the time of defendant’s trial exceeded the 180-day limitation imposed by the Agreement on Detainers will depend on resolution of the question of how much, if any, of the delay which followed a motion by defendant pursuant to CPL article 255 may reasonably be attributed to that motion and therefore is excludable from computation of the 180-day period — a question not addressed by the Appellate Division — the case must be remitted to that court for its consideration of that issue.

On the morning of June 30, 1978 the body of Sebastian Lopez, the victim of a fatal gunshot wound in the chest, was found lying on the ground on Clover Place in Queens County. On the basis of information obtained connecting defendant with an automobile driven by the victim and the sale of tools which had been in the vehicle, defendant within a few days became a suspect in the homicide investigation and was subsequently located in Trenton State Prison, New Jersey. A warrant was issued on August 23, 1978 for defendant’s arrest in connection with the homicide, and he was thereafter returned to Queens County on October 5, 1978 pursuant to the warrant.

Prior to his return, on August 29, 1978 defendant executed and filed an “Inmate’s Notice of Place of Imprisonment and Request for Disposition of Indictments, Informations and Complaints” pursuant to subdivision (a) of article III of the Interstate Agreement on Detainers, requesting disposition of the Queens County homicide charge within 180 days. The effect of that instrument was to start the running of the 180-day period within which his trial had thereafter to begin under the agreement.

Defendant’s motion to dismiss the prosecution for noncompliance with the statutory trial period was made on May 23, 1979, after the unsuccessful interposition of two other motions, one an omnibus motion pursuant to CPL article 255 made on November 13,1978, the other a motion made on April 5, 1979 to suppress his statement to Police Officer Saia. There is no conflict between the parties as to the inclusion or exclusion of various time intervals consumed by such things as adjournments at defendant’s request and delays by the People in producing defendant for arraignment, for the purpose of determining whether the 180-day period had elapsed on May 23. A single critical period is in dispute. If that period is wholly chargeable to the prosecution, the statutory period for trial had run by May 23 and the denial of the motion to dismiss was error. On the other hand, if 10 or more days of that period are ¿scribed to defendant’s omnibus motion made on November 13, 1978, the statutory period had not elapsed, and it was not error to deny defendant’s motion to dismiss.

We address first a contention by the People that defendant waived his right to seek dismissal of the charges against him for noncompliance by Queens County authorities with the mandatory 180-day time for trial. Both courts below held — Supreme Court as an alternative to its conclusion that the 180-day period had not expired when the motion to dismiss was made — that by making a motion on April 5, 1979 to suppress Detective Saia’s testimony the defendant waived any right he had under the Agreement on Detainers to dismissal of the prosecution, relying on People v White (33 AD2d 217). In White the court found that, by making a motion to suppress after the trial period fixed by the Agreement on Detainers had elapsed, the defendant had effected such a waiver, stating that (p 221) “[a] prisoner not brought to trial within the statutory period may not continue to participate in the proceedings indefinitely and then, at his pleasure, demand and be granted a dismissal of the indictment.”

The facts in a particular instance may warrant a factual determination that the defendant has elected not to assert or has abandoned his rights under the Agreement on Detainers and has chosen to proceed to disposition without reference thereto. Such a determination, however, is not warranted merely because the defendant takes steps to prepare for trial (by way of a suppression motion or otherwise), whether before or after the expiration of the statutory 180-day period. There is nothing necessarily inconsistent in proceeding to prepare for disposition by trial and in claiming the right to benefits under the Agreement on Detainers. It may be impossible practically to predict with any degree of certainty the expiration date of the 180-day period. Nor should the defendant’s exercise of the full panoply of his pretrial procedural rights be deterred by the risk that he may thereby jeopardize his rights under the Agreement on Detainers; there is no necessary interrelation between the two. Whether in a particular instance a defendant will be held to have elected to forego or to have abandoned rights to which he might be entitled under the Agreement on Detainers will depend on all the relevant circumstances. Measured by this standard, it was error to have concluded that defendant in this case “waived” his rights under the Agreement on Detainers by making the motion to suppress.

We return then to the question whether the critical 84 days over which the parties are in conflict are days of delay of trial chargeable to the People and therefore includable in the reckoning of the 180-day statutory period for trial running from defendant’s filing of a request for disposition of the Queens County charges. The period in question is the time between November 13, 1978 and February 5, 1979 during which the omnibus motion made by defendant on the first of these dates was pending, but also during which he was out of the county, having been removed from Queens to Suffolk County on October 31, 1978 pursuánt to a habeas corpus order secured by the Suffolk County authorities for prosecution on charges pending in that county. Although orders for his return were issued by Supreme Court, Queens County, on the return day of the motion and on several subsequent occasions, they were not effective in procuring defendant’s return to Queens County until February 5,1979, following entry of a judgment of conviction in Suffolk County. On that date the District Attorney of Queens County, in response to defendant’s still pending omnibus motion, requested an adjournment to furnish the Grand Jury minutes to the court, which was followed by a second, similar request, after which the minutes were supplied and the dismissal sought by the motion was dénied by decision of the court handed down on Márch 13, 1979.

The People agree that the time consumed by these two adjournments is time chargeable to them and includable in the computation of the 180-day period within which the Queens County charges were required to be tried. They contend however that the running of the statutory period was tolled for the 84 days the motion was pending during which defendant was outside the jurisdiction of Queens County while being detained in Suffolk County. For this contention they rely on subdivision (a) of article VI of the Interstate Agreement on Detainers, which provides that in determining the duration and expiration dates of time periods set out in the agreement “the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial”. In support of their position, and by way of distinction of Stroble v Anderson (587 F2d 830) (cited by defendant as authority that time spent in connection with trial on another charge is not to be excluded from the running of the statutory trial time), the People urge the fact that there was an express reference by Supreme Court in its denial of defendant’s motion to dismiss under the Agreement on Detainers to “defendant’s unavailability for trial while disposing of another indictment”.

There is no basis however for concluding, as would the prosecution, that the period defendant was held in Suffolk County tolled the running of the mandatory 180-day period. Defendant was not “unable to stand trial” within the statute and is not to be penalized by application of the tolling provision when his unavailability was the consequence of the conduct of the public authorities. In interrupting the running of the 180-day period, after which trial is barred, when defendant is “unable to stand trial”, the statute is reasonably to be interpreted as contemplating a disability attributable to the defendant or his attorney. The words do not encompass a situation like that here in which the unavailability for trial is occasioned not by the condition or conduct of the defendant but by the People of the State in their prosecutorial capacity.

The facts that it was the authorities of Suffolk County rather than of Queens County who erected an obstacle to a timely trial in Queens County and that unsuccessful efforts to remove the obstacle were made by both the District Attorney and Supreme Court in Queens County does not serve to lay at defendant’s feet the delay which resulted from his presence in Suffolk County and thus to activate the tolling provision. Defendant is not to be disadvantaged by reason of factionalism of the prosecutorial arm of the State. Accordingly, the running of the 180-day period was not tolled by subdivision (a) of article VI of the Agreement on Detainers by reason of defendant’s retention in Suffolk County from November 13, 1978 to February 5, 1979.

We reject also the prosecution’s attempt to bring the 84-day delay within the exception to the 180-day time requirement set out in subdivision (a) of article III of the agreement — “provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance”. In this case the causes for the adjournments were Suffolk County’s persistence in not returning defendant to Queens County for the proceedings pending against him there, coupled with the failure of the Queens County authorities to enforce the several orders for his return which they had obtained, neither of which constituted “good cause” within the contemplation of the Agreement on Detainers.

The fact that defendant’s detention in Suffolk County did not toll the running of the statutory trial period does not, however, mean that all of the 84 days are ineluctably to be included in the computation of the 180-day period. Defendant himself recognizes that when an omnibus motion is made a reasonable time for response by the prosecution may be excluded in the computation of the period of delay chargeable to the People following a request for disposition of outstanding charges (People v Chiofalo, 73 AD2d 673). Excludable, too, may be the period for decision of the motion by the Judge by whom it was heard. Thus, Supreme Court itself said here, “Some of the delay occasioned by the court’s considering and deciding the defendant’s motion is also excludable as being reasonable and necessary”. The period to be excluded is not, however, a normal time reasonably to be assigned to the disposition of a similar motion. It is the period of delay, if any, which in the individual case may be actually ascribed to consideration and determination of the particular motion (cf. People v Sturgis, 38 NY2d 625 [absence of defendant must have caused delay to be excluded under CPL 30.30, subd 4, par (c)]).

No decision was made by either of the courts below as to what period following the making of defendant’s omnibus motion on November 13, 1978 and prior to the District Attorney’s first request on February 5, 1979 for an adjournment to procure a copy of the Grand Jury minutes should be charged against defendant as a reasonable and necessary delay brought about by his motion. The case must therefore be returned to the Appellate Division for a determination of this question (either by it initially or after remittal to the Supreme Court). If it is found that less than 10 days of that interval are chargeable to defendant as a consequence of his omnibus motion, then defendant’s motion to dismiss for failure of compliance with the Agreement on Detainers should be granted. On the other hand, if it is found that the period chargeable to defendant is 10 days or more, the case should be remitted for a new trial because of the error in denial of suppression of the testimony by Detective Saia as to defendant’s statement made to him in the absence of counsel (People v Rogers, 48 NY2d 167).

A comparison of the statement testified to by Detective Saia with that made by defendant to his sister and testified to by her demonstrates that the error in denial of suppression with the consequent receipt of the police officer’s testimony on trial was not harmless beyond a reasonable doubt. The statement given to Saia when the detective imperpiissibly questioned defendant in the absence of counsel at Trenton State Prison on August 22, 1978, included a detailed account of his activities on the night of the Lopez homicide and for some weeks following. It recited that on the night of the homicide after he had lost all his money gambling he walked the streets all night; that about 6:30 a.m. he saw Lopez standing next to a car with the door open and the motor running; that he then walked over to the victim, pulled out a .22 caliber revolver he was carrying and “pointed it right at [Lopez’] chest”, telling him “I’m not going to hurt you. All I want is your money”; that Lopez grabbed for the gun which then went off and the victim fell; that, believing the man was not hurt very badly, he tried to prop him up by a tree but the man fell over; that he then realized Lopez was badly hurt, whereupon he took the victim’s wallet from his pocket, jumped in the car and drove it off; that a day or two later he sold tools from the victim’s car to two acquaintances from whom he received “coke”, some of which he used himself and some of which he sold; that the day- after the homicide he disposed of the gun by giving it to a person known to him; and that a few days later he flew to Puerto Rico under an assumed name, returning a week or so later first to sleep in doorways and in the street and ultimately to stay with his sister.

Detective Saia testified that he made notes of the statement as it was given and read them back verbatim to defendant, asking that he correct any error if there was one. The witness said that he had consulted his notes before giving his testimony about the statement at the trial.

By contrast to the statement related by the police officer, defendant’s sister testified that when defendant was at her home a few weeks after the homicide he told her only that “he had killed — he was — he had no money, and he had — he was hungry and cold, and he was around — he told me it happened in Queens somewhere, or by Highland Park, and he got — he told me he got into the car with this man, and he asked him for his money, and the man — they struggled with a gun, and he shot the man, the gun went off, and he got out of the car, and he took the man out of the car and threw him, and got back in the car and left.”

Strikingly absent from the statement testified to by the sister is any explicit admission of a robbery or attempted robbery at gunpoint (sufficient to form the predicate for defendant’s conviction of felony murder), or of defendant’s possession and production of the weapon which brought about the death of Lopez, as well as of defendant’s after-the-event conduct by way of disposing of the gun and leaving the country under an assumed name — all of which, taken with the fact that Saia testified from a contemporaneous written record of the statement made to him, might well have weighed heavily with the jury in its determination of defendant’s guilt of the crimes of which he was convicted. The error in the refusal to suppress the detective’s concededly inadmissible testimony could scarcely have been harmless beyond a reasonable doubt in these circumstances (People v Schaeffer, 56 NY2d 448; People v Garofolo, 46 NY2d 592; People v Crimmins, 36 NY2d 230, 237-238).

For the reasons stated, the order of the Appellate Division should be reversed and the case remitted to it for further proceedings in accordance with this opinion.

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

Order reversed, etc.

      . The notice of motion served on November 1, 1978 sought a variety of relief, including inspection of the Grand Jury minutes and dismissal of the indictment, discovery of expert reports, of physical evidence seized from defendant, of statements made by defendant, and of exculpatory evidence to which defendant was entitled under Brady v Maryland (373 US 83), and a bill of particulars. By his answering affidavit of November 6, 1978 the District Attorney consented to an in camera inspection of the Grand Jury minutes and appears either to have consented to or furnished the other items requested, with the exception of Brady material, of which he said none existed.

      . Without elaboration, the court added that “[t]his period is not clearly ascertainable”.


author: Chief Judge Cooke.

text:
    In the Matter of Elizabeth Kelly, as Administratrix of the Estate of Arthur Kelly, Deceased, Respondent, v State Insurance Fund, Appellant, and Arthur R. Martoccia, P. C., as Guardian ad Litem for Arthur T. Kelly, Respondent.
    Argued September 20, 1983;
    decided October 27, 1983

      POINTS OF COUNSEL

      Raymond C. Green, Leonard M. Schnitzer and Mark Slotkin for appellant.
    I. Where an employer has been impleaded and compelled to pay a Dole contribution claim in a wrongful death and conscious pain and suffering action by the estate of an employee against another not in the same employ, the employer (through its workers’ compensation insurer) should not additionally be compelled to pay back to the employee’s estate a portion of its workers’ compensation lien as a contribution toward the estate’s expenses in prosecuting the action; and in the event that there must be a contribution, it should be in a lesser amount or percentage than would have been required if the employer had not been a party to and liable in the litigation. (Federal Mar. Terms, v Shipping Co., 394 US 404; General Aniline & Film Corp. v Schrader & Son, 12 NY2d 366; Louviere v Shell Oil Co., 509 F2d 278, 515 F2d 571; Ballwanz v Jarka Corp., 382 F2d 433; Russo v Flota Mercante Grancolombiana v American Stevedores, 303 F Supp 1404; Myers v Cornell Univ., 97 Misc 2d 195; Rahl v Hayes 73 Corp., 117 Misc 2d 571.) II. The lienor is not required to. contribute toward the estate’s prosecution expenses on the basis of potential savings in not having to pay out benefits in the future. (Castleberry v Hudson Val. Asphalt Corp., 70 AD2d 228; Matter of Van Deusen v United States Fid.. & Guar. Co., 81 AD2d 1026; Matter of Joosten, 103 Misc 2d 140; Matter of Kelly, 110 Misc 2d 356; United States Fid. & Guar, v 38 East 29th St, 111 Misc 2d 672, 88 AD2d 1116; Cox v Belmont Ironworks, 104 Misc 2d 801; O’Connor v Lee Hy Paving Corp., 480 F Supp 176; Matter of Di Meglio v Hartford Ins. Co., 116 Misc 2d 191; Matter of Racz, 114 Misc 2d 146; Matter of Purtill, 111 Misc 2d 916.) III. If the lienor is required to contribute toward the estate’s prosecution expenses on the basis of the lienor’s savings in not having to pay future workers’ compensation benefits, contribution should not be by means of a lump-sum equivalent to .3427 of the actuarially estimated present value of future payments, but should be by means of weekly payments equal to .3427 of such weekly workers’ compensation benefits payments as and when they would actually have become due had there been no wrongful death recovery. (Green v City of New York, 115 Misc 2d 853; Stineman v Fontbonne Coll., 664 F2d 1082.) IV. Whether there should be an obligation to contribute to the prosecution expenses out of future savings, and if so, what form the contributions should take, was not for the Surrogate to determine, but was exclusively within the domain of the Workers’ Compensation Board, and the Surrogate should, accordingly, have declined to assume jurisdiction over this aspect of the matter. (O’Rourke v Long, 41 NY2d 219; Pabon v Railroad Maintenance Corp., 79 AD2d 511; Kimbrough v C.F.L. Dev. Corp., 80 AD2d 737; Matter of Young v Western Elec. Co., 85 AD2d 823.)

      Paul F. McAloon, Edwin N. Weidman and Abraham Fuchsberg for Elizabeth Kelly, respondent.
    I. Where subdivision 1 of section 29 of the Workers’ Compensation Law, which requires equitable apportionment of the costs of obtaining recovery in a third-party action, is concededly applicable against innocent employer-lienors, the exemption of negligent employer-lienors from its coverage would be contrary to the statute and contrary to equity and common sense. (Matter of Van Deusen v United States Fid. & Guar. Co., 81 AD2d 1026; Westchester Light. Co. v Westchester County Small Estates Corp., 278 NY 175; Cardinal v State of New York, 304 NY 400; Dole v Dow Chem. Co., 30 NY2d 143; Cox v Belmont Ironworks, 104 Misc 2d 801; Becker v Huss Co., 43 NY2d 527.) II. The court below properly took into account the lienor’s future savings in determining the apportionment of the expenses of the third-party recovery, consistent with the clear language of the statute and the intent of the Legislature. (Castleberry v Hudson Val. Asphalt Corp., 70 AD2d 228; O’Connor v Lee Hy Paving Corp., 480 F Supp 716; Matter of Di Meglio v Hartford Ins. Co., 116 Misc 2d 191; Cox v Belmont Ironworks, 104 Misc 2d 801; United States Fid. & Guar, v 38 East 29th St., Ill Misc 2d 672; Matter of Kelly, 110 Misc 2d 356; Matter of Curtin v City of New York, 287 NY 338.) III. The court properly ordered a lump-sum reduction of the lien to offset future benefits. IV. The Surrogate had jurisdiction to determine the amount of the lien in the course of judicially settling petitioner administratrix’ account. (Matter of Lachman, 208 Misc 774; Matter of Applebaum, 180 Misc 881; Matter of Trofemuk, 52 Misc 2d 148; O’Rourke v Long, 41 NY2d 219; Matter of Young v Western Elec. Co., 85 AD2d 823; Kimbrough v C.F.L. Dev. Corp., 80 AD2d 737; Pabon v Railroad Maintenance Corp., 79 AD2d 511; Matter of Piccione, 57 NY2d 278.)
   OPINION OF THE COURT

Chief Judge Cooke.

When a workers’ compensation claimant recovers damages in a third-party action, the compensation carrier’s equitable share of litigation costs incurred by the claimant may be apportioned on the basis of the total benefit that the carrier derives from the claimant’s recovery. In the present matter, therefore, it was proper for the Surrogate’s Court to have assessed the carrier’s equitable share of the costs of litigation as a percentage of the total of the amount of past benefits paid (which the carrier will recoup by enforcing its lien in that amount on the recovery) and the present value of estimated future benefits to claimant (which the carrier will not have to pay because of claimant’s recovery).

Petitioner, executrix of her deceased husband’s estate, received workers’ compensation death benefits after her husband was killed in a construction accident. She later brought actions for wrongful death and for conscious pain and suffering against the City of New York, the general contractor for the construction project, and several other contractors. Damages were recovered in the amount of $315,000.

Petitioner applied to the Surrogate’s Court for a distribution of the recovery proceeds. At the time of the application, the compensation carrier, appellant here, had made periodic payments to petitioner totaling, with interest, $54,027.56. The court determined that, pursuant to section 29 of the Workers’ Compensation Law, the compensation carrier had a lien on petitioner’s recovery in this amount. Under this same statute, petitioner was deemed to be entitled to have the costs she incurred in bringing the action, including her attorney’s fee, apportioned between herself and the carrier according to the relative benefit derived by each party from the recovery. Petitioner’s costs in bringing the action constituted 34.27% of the total recovery. The carrier’s equitable share of the litigation costs was held to be a pro rata share of the total amount of the recovery inuring to the benefit of the carrier. The court reasoned that inasmuch as the carrier stood to gain by the recovery in two ways — by recouping past compensation paid and by being relieved of its future obligation to pay compensation — the carrier’s share of litigation costs should reflect both of these benefits. Accordingly, the carrier’s lien on petitioner’s recovery was offset by 34.27% of past benefits paid and the present value of estimated future benefit payments that were not necessary due to the recovery.

The Appellate Division affirmed for the reasons stated by the Surrogate’s Court and granted leave to appeal to this court on a certified question. This court answers the certified question in the affirmative and affirms the order of the Appellate Division.

Section 29 of the Workers’ Compensation Law governs the rights and obligations of employees, their dependents, and compensation carriers with respect to actions arising out of injuries caused by third-party tort-feasors. A claimant has the first right to bring a third-party action, and, while undertaking such an action, may continue to receive compensation benefits (Workers’ Compensation Law, § 29, subd 1). In the event that a claimant recovers in a third-party action, the compensation carrier is granted a lien on the amount of the recovery proceeds equal to the amount of past compensation it has paid, with interest (id.). The lien, however, is subordinate to a deduction for costs and attorney’s fees (id.). The statute was amended in 1975 (see L 1975, ch 190) to also provide: “Should the employee or his dependents secure a recovery from [a third party], whether by judgment, settlement or otherwise, such employee or dependents may apply on notice to such lienor to the court in which the third party action was instituted, or to a court of competent jurisdiction if no action was instituted, for an order apportioning the reasonable and necessary expenditures, including attorney’s fees, incurred in effecting such recovery. Such expenditures shall be equitably apportioned by the court between the employee or his dependents and the lienor” (Workers’ Compensation Law, § 29, subd 1).

Appellant argues that the Legislature, in amending section 29 to provide for apportionment of litigation costs, limited the scope of a third-party recovery that benefits the carrier, against which the carrier’s share of litigation costs may be assessed. It is contended that while the purpose of section 29 is to encourage employees, or their dependents, to pursue a third-party recovery, the lien provision is of equal importance as it accords the carrier an opportunity to recoup past compensation paid, should a recovery in the third-party action be had, and thereby prevents double recovery. The 1975 amendment, it is urged, contemplates that the carrier should assume only the proportionate costs incurred in recovering the lien amount; it was not intended to eviscerate the lien by also assessing costs against the speculative amount of benefit inuring to the carrier from being relieved of its obligation to make future payments (see Castleberry v Hudson Val. Asphalt Corp., 70 AD2d 228, 230-235). This argument is unpersuasive.

Prior to the amendment of section 29, an insured employee who recovered against a third party an amount greater than his or her statutory entitlement to compensation bore the entire costs of litigation and paid the lien amount out of the remaining recovery proceeds (see Memorandum of NY Law Rev Comm. McKinney’s Session Laws of NY, 1975, p 1551; see, also, Becker v Huss Co., 43 NY2d 527). As a result, carriers reaped significant benefits at a claimant’s expense. The Law Revision Commission, advocating change in the law, noted that “when the excess is modest or non-existent, the employee, who has gone to the trouble and expended the time required to make the lawsuit a success, finds that after his own lawyer’s and the carrier’s liens have been paid off, there is little or no net recovery left for him” (id., at p 1552).

The impetus for amending the law to provide for allocation of litigation costs between the employee and the carrier, therefore, was the desire to stem the inequity to the claimant, arising when a carrier benefits from an employee’s recovery while assuming none of the costs incurred in obtaining the recovery, and to ensure that the claimant receives a full measure of the recovery proceeds in excess of the amount of statutory benefits otherwise due the claimant. It was determined that these interests would be most effectively served by equitably apportioning litigation costs. This concept was purposely adopted to avoid “rigid statutory formulas” and to implement a “practical and flexible” approach towards ensuring that a compensation carrier assumes its fair share of the costs of litigation (see Memorandum of NY Law Rev Comm, op. cit., p 1553; see, also, Becker v Huss Co., 43 NY2d 527, 543, supra). It is evident that the determination of what constitutes equitable apportionment of costs has been left to the courts (Becker v Huss Co., supra, at p 544). When an employee brings a third-party action and recovers an amount greater than the amount of his or her statutory entitlement to compensation, there is no question that the carrier benefits not only by the recovery of its lien but also by the value of estimated future compensation payments that, but for the employee’s efforts, the carrier would have been obligated to make. There being nothing in the amendment, either express or implied, limiting a court’s power to assess costs against a carrier’s relief from its obligation to pay future benefits, the purpose of the amendment is served by an allocation formula that takes into consideration the full benefit a carrier receives from an employee’s recovery in a third-party action.

This conclusion comports with the law governing situations in which the employee’s recovery is less than its statutory entitlement to compensation — the so-called “deficiency” cases. When an employee brings a third-party action and recovers an amount less than his or her statutory entitlement to compensation, the compensation carrier must award compensation for the deficiency “between the amount of the recovery * * * actually collected, and the compensation provided or estimated by this chapter” (Workers’ Compensation Law, § 29, subd 4). This provision has been construed to mean that in a deficiency case the amount “actually collected” by the employee is the recovery proceeds remaining after deduction for litigation costs (see Matter of Curtin v City of New York, 287 NY 338, 340-344). Therefore, the carrier assumes the entire cost of obtaining the recovery, as its responsibility to make payments is reduced only by the amount “actually collected” by claimant. Obligating the carrier to assume all litigation costs in a deficiency case is based on the principle that when “one person without fault incurs expenses in creating a fund which inures to the benefit of another, he [or she] should be reimbursed from that fund for the expenses so incurred” (Matter of Curtin v City of New York, supra, at p 343). In a deficiency case the proceeds of recovery inure only to the benefit of the carrier because it relieves the carrier, for a time, from paying regular compensation benefits. The employee has received no real benefit because he or she has not received anything that would not otherwise have been forthcoming had the third-party action never been brought. The concept that the carrier should be responsible for the costs in obtaining a recovery, to the full extent that it is benefited by the recovery, is no less relevant when the claimant receives a benefit from a recovery in excess of his or her statutory entitlement than in a deficiency case when the claimant has received none.

Furthermore, the value of future compensation payments that a carrier has been relieved of paying due to a third-party recovery is not so speculative that it would be improper to estimate and to assess litigation costs against this benefit to the carrier. Indeed, when it is the carrier that brings a third-party action, the statute specifically authorizes determining the amount of excess recovery owing to the employee by estimating the “probable total amount” of future compensation “upon the basis of the survivorship annuitants table of mortality, the remarriage tables of the Dutch Royal Insurance Institution and such facts as * * * may [be] deem[ed] pertinent” (Workers’ Compensation Law, § 29, subd 2).

Finally, permitting courts when apportioning litigation costs to consider the extinguishment of a carrier’s future obligation to make compensation payments as a relative benefit to a carrier does not compromise the principle behind the granting of a carrier’s lien. The lien serves to permit carriers to recoup past outlays of compensation and to avoid a double recovery by the claimant for the same predicate injury (see Matter of Granger v Urda, 44 NY2d 91, 97). It was the very fact that carriers were permitted this benefit at a claimant’s expense that formed a principal basis for the amendment of the law. Assessing costs against the full amount of the recovery inuring to the carrier’s benefit in no way vitiates a carrier’s right to recoup past benefits paid. The right to a lien remains intact. The carrier must, however, contribute the costs of litigation in proportion to the benefit it has received. Offsetting the carrier’s lien by its equitable share of litigation costs does no more than provide a convenient and practical means of settling accounts between the claimant and the carrier. And inasmuch as the claimant’s recovery has already been reduced by the full costs incurred in the action, no double recovery is had.

Appellant makes an additional point that merits brief discussion. Appellant notes that it is not only decedent’s employer’s compensation carrier, but it is also the employer’s liability carrier. In this latter capacity, it has had to pay damages on behalf of the employer who was impleaded in petitioner’s third-party action and ultimately was held to be partially liable for decedent’s accident. Appellant argues that, in these circumstances, the rationale underlying equitable apportionment of litigation costs does not apply because the carrier’s interests in recouping or extinguishing compensation payments no longer conform with the employee’s interest in obtaining a recovery. Indeed, the carrier’s interest is adverse to that of the claimant insofar as the carrier, as liability insurer, will be liable on the judgment over. Therefore, it is contended, the carrier should not be required to bear the employee’s costs in bringing the action, at least to the extent that liability has been apportioned to it.

Although this contention has met with some support in the lower courts (see France v Abstract Tit. Div. of Tit. Guar. Co., 57 AD2d 721, mod 43 NY2d 527; Myers v Cornell Univ., 97 Misc 2d 195), it is inconsistent with the purpose of requiring equitable apportionment of litigation costs. Quite simply, that a compensation carrier may wear a second hat as a liability carrier is irrelevant to determining the benefit it receives from an employee’s recovery in a third-party action. A claimant has no control over an employer’s choice of insurance companies or the employer’s impleader in a third-party action. An employee’s right to bring a third-party action is in no way restricted by the potential for the shifting of ultimate liability, in whole or in part, to the employer and, consequently, the employee’s concomitant right to equitable apportionment of litigation costs should be similarly unaffected (Matter of Van Deusen v United States Fid. & Guar. Co., 81 AD2d 1026).

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

Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed, etc.

       If a claimant fails to bring a third-party action within six months of being awarded compensation, the carrier has the right to bring the action on behalf of the claimant provided that the employee has been given 30 days’ notice (see Workers’ Compensation Law, §'29, subd 2).


author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v David F. Padgett, Appellant.
    Decided October 25, 1983

      APPEARANCES OF COUNSEL

      Mark S. Arisohn for appellant.

      Deriis Dillon, District Attorney (George Freed of counsel), for respondent.
   OPINION OF THE COURT

Wachtler, J.

Defendant was convicted of one count of criminal mischief in the fourth degree (Penal Law, § 145.00, subd 1). The charge, along with several assault charges, arose out of a barroom incident during which defendant broke the glass in an emergency fire exit door. Defendant’s conviction was affirmed by the Appellate Term. The issue presented is whether defendant was entitled to a charge that the jury could find that his conduct was justified and therefore not criminal.

The owner of the bar in which the incident occurred testified that defendant and his two companions engaged in boisterous conduct and that eventually and as a result of that conduct the alarm on the emergency exit door of the bar was activated. When the owner reset the alarm, defendant laughed and triggered the alarm again. When the owner asked defendant what he was doing, defendant struck the door with his fist, shattering the glass. The charge of criminal mischief is based upon the damage to the door.

After the door was broken the owner went to call the police. As he attempted this, defendant and his companions began to leave by the front door. The owner went after them, asking who was going to pay for the broken glass in the door. An altercation ensued, involving the owner, his father (also a part owner), defendant and his friends, out of which the four assault counts against defendant arose. The bartender, two patrons and the owner’s father all testified in a manner corroborating the owner’s version of the incident.

Defendant’s version is quite different. He testified that he and his friends were telling jokes and having a good time at the bar when they were informed by the bartender that their presence was no longer welcome. The trio attempted to leave by what turned out to be the emergency exit door. The alarm went off, causing the bar owner to verbally abuse the defendant. After he reset the alarm, the owner threatened defendant, who became frightened. Defendant, believing the owner was about to hit him, tried to exit through the emergency door. He pushed the frame of the door hard, and the glass shattered, but he stated that he neither pushed on nor punched the glass. An altercation ensued, joined in by others in the bar.

Defendant requested that the court charge the jury on the defense of justification as being applicable to the four assault charges as well as the criminal mischief charge. The trial court instructed the jury that justification was a defense to the assault charges, but refused such an instruction with regard to the charge of criminal mischief. The court stated that the defense of justification is not applicable to a charge of criminal mischief. Defendant was acquitted of the four assault charges, but convicted of criminal mischief.

An appeal to the Appellate Term resulted in affirmance. The majority held that although the justification defense might be applicable to a charge of criminal mischief, there was no reasonable view of the evidence in this case that would support it. Accordingly, the majority held that the failure to submit the question to the jury was not error. One Justice dissented, stating that, in his view, defendant’s testimony was sufficient to support the defense and that the defendant was therefore entitled to the charge of justification. We agree with the dissent and therefore reverse.

Initially, we note the well-settled principle that, in considering whether the trial court’s charge to the jury was adequate, the record must be considered most favorably to defendant (People v Watts, 57 NY2d 299, 301; People v Steele, 26 NY2d 526, 529). If, taking that view of the record, the evidence supports the defense of justification, the trial court should instruct the jury as to the defense and must when so requested (People v Watts, 57 NY2d 299, 301, supra). Thus, if on any reasonable view of the evidence, the fact finder might have decided that defendant’s actions were justified, the failure to charge the defense constitutes reversible error.

Subdivision 2 of section 35.05 of the Penal Law provides that conduct which would otherwise constitute an offense is justifiable and not criminal when the conduct “is necessary as an emergency measure to avoid an imminent * * * private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue”. No reason is offered why this defense should be deemed generally unavailable to the person accused of criminal mischief; indeed, the prosecutor now concedes that the trial court’s statement to this effect was erroneous. The only remaining issue is whether defendant’s testimony to the effect that he pushed on the door as he was attempting to retreat from the assault of the bar owner was sufficient to call for the requested charge.

In People v Huntley (87 AD2d 488, affd 59 NY2d 868), a defendant charged with murder and manslaughter had testified, quite in conflict with other witnesses, that the victim of the stabbing death had initiated their encounter by approaching defendant with a knife and demanding his money. When defendant attempted to flee, he was pursued, and in the ensuing scuffle, the knife inadvertently went into the victim’s back. The defendant’s claimed effort to thwart an attempted armed robbery was held sufficient to require presentation of the justification issue to the jury, even though the defendant never admitted that he had intended to stab the victim {id., at p 494).

In the present case, defendant claimed he was trying to avoid what he believed was an attack by the bar owner. He pushed hard against the emergency exit door — hard enough, apparently to break the glass — in order to retreat from what he described as unprovoked aggression. The justification defense seems peculiarly appropriate to a situation such as this, where defendant inflicts damage to property in his attempt to avoid physical injury to himself. The People argue, however, that defendant was not entitled to the justification charge, because his testimony indicated not that defendant caused property damage to avoid personal injury, but that he never intended to cause property damage. The People would limit the availability of the justification defense to cases in which the conduct is admitted to have been intentional, but in avoidance of a greater injury. The cases on point, particularly Huntley, indicate that the People have tendered a much too narrow interpretation of the circumstances under which this doctrine may be applicable.

Here, as in Huntley, an aspect of the defendant’s testimony is inconsistent with the defense. In that case, Huntley never admitted that he intentionally stabbed the victim, just as the present defendant never admitted that he intentionally broke the glass. Indeed, it appears well set-. tied that this type of inconsistency should not deprive defendant of the requested charge (e.g., People v Steele, 26 NY2d 526, supra [defendant proffered a defense of alibi; People’s case raised possibility that defendant’s conduct was justified]). Defendant’s explanation indicates that he engaged in conduct in avoidance of the perceived attack. That conduct forms the basis for a charge of criminal mischief. The fact that defendant never admitted that he intended to cause the resulting property damage should not disentitle him to a charge that his conduct might not have been criminal under the circumstances.

Inasmuch as defendant’s requested charge should have been given, the order of the Appellate Term should be reversed and a new trial ordered.

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

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed and a new trial ordered.


author: Per Curiam.

text:
    In the Matter of Joseph M. Margiotta, an Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Argued September 13, 1983;
    decided November 1, 1983

      POINTS OF COUNSEL

      John G. Bonomi, P. C., and Abraham Abramovsky for appellant.
    I. Since the general verdict in appellant’s criminal case could have been based on the jury’s finding either that he instilled “fear” in the victim or that he acted “under color of official right,” neither of such alternative grounds is entitled to collateral estoppel in appellant’s automatic disbarment proceeding. (Cromwell v County of Sac., 94 US 351; Silberstein v Silberstein, 218 NY 525; Portnoy v Bucalo, 82 Misc 2d 590; Russell v Place, 94 US 606; Lewis v Ocean Nav. & Pier Co., 125 NY 341; O'Connor v G & R Packing Co., 74 AD2d 37.) II. The court below erred in holding that appellant’s automatic disbarment is mandated since a Hobbs Act conviction for acting “under color of official right” does not constitute a felony under New York law. (Matter of Chu, 42 NY2d 490; Matter of Mydanick, 78 AD2d 339; People ex rel. Newman v Foster, 297 NY 27; People v Gordon, 87 AD2d 636; People v Brooks, 73 AD2d 564; People v Le Grand, 81 AD2d 945; United States v Williams, 621 F2d 123; People v Dioguardi, 8 NY2d 260; People v Raffa, 90 Misc 2d 97.) III. Matter of Cristenfeld and Matter of Scacchetti are materially distinguishable from appellant’s case. (Matter of Cristenfeld, 58 AD2d 505; Matter of Scacchetti, 86 AD2d 127; Matter of Neary v Voorhis, 207 App Div 419; People v Clampitt, 34 Misc 2d 766.)

      Frank A.Finnerty, Jr., and Diana L. Maxfield for respondent.
    I. A Trial Judge’s charge to a jury is not relevant in determining whether a crime committed in another jurisdiction would constitute a felony if committed in New York. (Matter of Cahn, 52 NY2d 479; United States v Margiotta, 688 F2d 108; People v Olah, 300 NY 96; People ex rel. Gold v Jackson, 5 NY2d 243; People ex rel. Knapp v Jackson, 6 AD2d 151, 5 NY2d 707; People ex rel. Goldman v Denno, 9 NY2d 138; People v Benjamin, 7 AD2d 410; Matter of Kilcullen, 55 AD2d 437, 42 NY2d 804.) II. The Federal extortion statute has, at the very least, “essential similarity” to the New York extortion statute and in fact has been held to be cognizable as a felony crime in New York. (Matter of Cahn, 52 NY2d 479; Matter of Mydanick, 78 AD2d 339; United States v Addonizio, 451 F2d 49; Matter of Cristenfeld, 58 AD2d 505.) III. The doctrine of collateral estoppel bars appellant’s renewed claim in a disciplinary proceeding that his Federal conviction of extortion under the Hobbs Act was not based upon a finding that “fear was instilled”. (Schwartz v Public Administrator, 24 NY2d 65; S. T. Grand, Inc. v City of New York, 32 NY2d 300; Matter of McGrath v Gold, 36 NY2d 406; Matter of American Ins. Co. v Messinger, 43 NY2d 184; People v Berkowitz, 50 NY2d 333; People v Plevy, 52 NY2d 58; Gilberg v Barbieri, 53 NY2d 285; Capital Tel. Co. v Pattersonville Tel. Co., 56 NY2d 11.)
   OPINION OF THE COURT

Per Curiam.

Appellant, an attorney admitted to the New York Bar, was on December 9, 1981 convicted of one count of mail fraud (US Code, tit 18, § 1341) and five counts of unlawfully affecting commerce by extortion (US Code, tit 18, § 1951, subds [a], [b] [the Hobbs Act]). Shortly thereafter, he was automatically disbarred pursuant to subdivision 4 of section 90 of the Judiciary Law. The question presented is whether appellant’s Federal felony conviction was essentially similar to the New York felony of larceny by extortion (Penal Law, § 155.05, subd 2; § 155.30, subd 6), in which case the automatic disbarment would be appropriate, or whether the conviction lacks a New York analogue, in which case the order of automatic disbarment should be vacated and appellant permitted a hearing in mitigation of his conviction.

The Judiciary Law provides for automatic disbarment when an attorney is convicted of a felony. Under this section, an offense committed in any other State, district or territory of the United States where it is classified as a felony is determined to be a felony when it “would constitute a felony in this state.” (Judiciary Law, § 90, subd 4, par e.) For purposes of this determination, the felony in the other jurisdiction need not be a mirror image of the New York felony, precisely corresponding in every detail, but it must have essential similarity. (Matter of Cahn, 52 NY2d 479, 482.) In Matter of Chu (42 NY2d 490), by way of example, essential similarity was found in the core of the offense under State and Federal statutes, although only the New York felony required specific intent to defraud.

On June 21,1982, the Appellate Division concluded that appellant’s conviction required automatic disbarment. We agree with the court below that appellant’s Hobbs Act violation was essentially similar to the New York felony of larceny by extortion.

Under New York law, a person is guilty of larceny by extortion “when he compels or induces another person to deliver such property * * * by means of instilling in him a fear that, if the property is not so delivered, the actor or another will * * * [u]se or abuse his position as a public servant by performing some act within or related to his official duties, or by failing or refusing to perform an official duty, in such a manner as to affect some person adversely”. (Penal Law, § 155.05, subd 2, par [e], cl [viii].) Under the Hobbs Act, extortion is defined as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under the color of official right.” (US Code, tit 18, § 1951) subd [b], par [2].)

Appellant argues that, as the general verdict on which he was convicted could have been based on a finding either that he instilled fear in the victim or that he acted under color of official right (see Lewis v Ocean Nav. & Pier Co., 125 NY 341), it is not “entitled to collateral estoppel” on the element of instilling fear required by New York law for larceny by extortion.

Assuming the validity of this argument, we nevertheless conclude that, for the particular purposes of subdivision 4 of section 90 of the Judiciary Law, a taking “under the color of official right” pursuant to the Hobbs Act is essentially similar to a taking by instilling fear in the victim that one will abuse his position as a public servant under the New York Penal Law.

While there may be no requirement of “instilling fear” in order to establish the Federal crime of extortion by acting under color of public office, our focus is different. “[T]he perspective with which the sentencing of convicted criminals is approached — the imposition of individual punishment — is quite different from that involved in professional disciplinary proceedings — the protection of the public”. (Matter of Chu, 42 NY2d 490, 493, supra.) For purposes of determining only “essential similarity,” we note that the disjunctive elements of “instilling fear” or acting “under color of official right” in the Hobbs Act are not the result of the promulgation by Congress of a law prohibiting an offense totally separate and dissimilar from extortion but rather a reflection of the common-law belief that the element of fear is implicit when extortion is accomplished by one acting under color of law. Traditionally, extortion was a crime that could only be committed by a public official taking fees under “colour of his office.” (4 Blackstone’s Commentaries, p 141; 2 Bishop, Criminal Law [9th ed], § 393.) It was only when the crime of extortion was extended to encompass acts by private persons that the element of threat or fear was made express.

“The language, ‘under color of official right,’ is consonant with the common law definition of extortion, which could be committed only by a public official taking a fee under color of his office, with no proof of threat, force or duress required. See Perrin v. United States, 444 U.S. 37,100 S.Ct. 311, 62 L.Ed.2d 199, 206-208 (1979); United States v. Nardello, 393 U.S. 286, 289, 89 S.Ct. 534, 536, 21 L.Ed.2d 487 (1969); United States v. Hathaway, 534 F.2d at 393; R. Perkins, Criminal Law 367-71 (2d ed. 1969). The coercive element is supplied by the existence of the public office itself. United States v. Hathaway, 534 F.2d at 393; United States v. Mazzei, 521 F.2d 639, 644-45 (3d Cir.) (en banc), cert, denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975). ‘Threats, fear and duress became express elements only when the crime was later broadened to include actions by private individuals, who had no official power to wield over their victims.’ United States v. Hathaway, 534 F.2d at 393 (citing United States v. Crowley, 504 F.2d 992 (7th Cir. 1974); United States v. Kenny, 462 F.2d 1205 (3d Cir.), cert, denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972)).” (United States v Williams, 621 F2d 123, 124, cert den 450 US 919.)

Under the Hobbs Act, as under common law, “[t]he ‘coercive’ element on the part of the official, and the ‘duress’ or ‘fear’ element on the part of the ‘victim’ are implied from the public official’s position of authority over the victim.” (United States v Butler, 618 F2d 411, 418, cert den 447 US 927.)

Accordingly, even if appellant was convicted solely of obtaining property “under the color of official right”, for purposes of subdivision 4 of section 90 of the Judiciary Law that offense is essentially similar to section 155.05 (subd 2, par [e]) of the Penal Law. The Appellate Division’s conclusion that appellant’s conviction warranted automatic disbarment therefore was proper.

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

Chief Judge Cooke (dissenting). I respectfully dissent. The “essential similarity” test, first developed in Matter of Chu (42 NY2d 490) and later expressed in Matter of Cahn (52 NY2d 479), cannot be applied consistently because it has no cognizable standard that may be applied from one case to the next. There should be a hearing.

An attorney convicted of a felony in a foreign jurisdiction will be subject to automatic disbarment when the crime, “if committed within this state, would constitute a felony in this state” (Judiciary Law, § 90, subd 4, par e). In its prior holdings on this issue, this court has stated that automatic disbarment may be imposed on an attorney convicted of a felony in a foreign jurisdiction so long as the foreign statute is essentially similar to a New York felony statute. Nowhere is it stated what constitutes essential similarity.

When there is not complete identity of elements between the crime underlying the foreign conviction and a New York criminal felony, what will constitute the “essential similarity” requiring automatic disbarment? Will three out of four elements suffice? Are certain elements to be weighted more than others? Does a determination that the foreign conviction implicitly considered the presence of conduct that must be expressly proven under a New York statute always justify finding the equivalent of a New York felony? These questions cannot be determinatively answered in the analytical framework of the “essential similarity” test which provides no adequate yardstick. By its nature, if not its. definition, that test is an ad hoc procedure with nebulous standards. The harshness of the penalty of automatic disbarment and the possibility that it will be meted out unfairly or unevenly, require that there be an identity of elements between a foreign crime and a New York crime before automatic disbarment may be ordered. The State analogue need not be an exact or mirror image of a foreign crime, but each factual element must be present and fundamentally the same (cf. People v Olah, 300 NY 96, 98-99).

It is impossible to determine whether respondent was convicted of a foreign felony for which there was a New York counterpart with an identity of elements. This, however, does not serve to insulate respondent in any manner from professional discipline. Rather, it merely permits respondent to request a hearing before discipline may be imposed. I would remit the matter for a hearing.

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

Order affirmed, with costs. Question certified not answered as unnecessary.

      . In Chu, the court concluded that a “conviction of an attorney for criminal conduct judged by Congress to be of such seriousness and so offensive to the community as to merit punishment as a felony is sufficient ground to invoke automatic disbarment.” (Matter of Chu, 42 NY2d, at p 493.) Subdivision 4 of section 90 of the Judiciary Law was thereafter amended to provide for automatic disbarment only when the offense committed would constitute a felony under the laws of this State. The moving force behind this amendment was a concern that non-New York felonies might not be “of sufficient gravity to automatically rebut the presumption of integrity underlying an attorney’s license to practice law in this state.” (Matter of Chu, supra, p 495 [Wachtlek, J., concurring]; see, also, Governor’s Memorandum of Approval, McKinney’s Session Laws of NY, 1979, p 1822.) The “essential similarity” test eliminates the concern that a minor offense in another jurisdiction will result in automatic disbarment. (Matter of Cahn, 52 NY2d 479.)

      . On the issue of Congress’ intent in enacting the Hobbs Act, the United States Court of Appeals for the Third Circuit has stated: “The definition of extortion in the Hobbs Act is substantially that of its predecessor statute, the Anti-Racketeering Act of 1934, ch 569, §§ 1-6, 48 Stat. 979. Unfortunately, however, the legislative history of neither statute provides any hint of congressional intent in adopting this definition of extortion, other than statements by proponents of the Hobbs Act that the statute did no more than incorporate the conventional definition of extortion contained in New York law. See e.g., 91 Cong. Rec. 11842 (1945) (remarks of Rep. Walter); id', at 11843 (remarks of Rep. Michener).” (United States v Mazzei, 521 F2d 639, 644-645 [era banc], cert den 423 US 1014.)