text:
    In the Matter of Property Clerk of New York City Police Department, Appellant, v Nicholas Ferris, Respondent.
    Argued February 13, 1991;
    decided March 27, 1991

      POINTS OF COUNSEL

      Victor A. Kovner, Corporation Counsel (Patrick L. Taylor and Pamela Seider Dolgow of counsel), for appellant.

      Jean M. Kestel and Barbara Ferrand-Reilly for respondent.
   OPINION OF THE COURT

Simons, J.

In this civil proceeding, petitioner New York City Property Clerk seeks a declaration that respondent’s 1983 Mitsubishi automobile, seized following his arrest for drug possession, should be forfeited. The courts below determined that the vehicle was subject to forfeiture under the New York City Administrative Code because it was used "in aid or in furtherance of crime” (Administrative Code of City of New York § 14-140 [e] [1]). They dismissed the petition in the interests of justice, however, believing release of the vehicle was part of the bargain leading to respondent’s plea of guilty in the criminal proceeding. We conclude that the courts lacked authority to dismiss in the interests of justice and therefore reverse the order of the Appellate Division and grant the petition.

Petitioner obtained custody of the vehicle following the arrest of respondent for violating Penal Law § 220.06. A police officer had observed him purchase drugs on the street and then drive away in his automobile with two passengers. When stopped, respondent was holding a foil packet containing phencyclidine (PCP) and a corn cob pipe; his passengers were holding foil packets containing PCP. Respondent subsequently pleaded guilty to disorderly conduct and was sentenced to pay a fine of $225 plus a $25 surcharge. At the time of the plea, the prosecutor agreed to release respondent’s vehicle and subsequently delivered an instrument to petitioner stating that he had no further need of it. This forfeiture proceeding followed.

The Administrative Code provides that all property "suspected of having been used as a means of committing crime or employed in aid or furtherance of crime * * * shall be given * * * into the custody of and kept by the property clerk” (Administrative Code § 14-140 [b]). Section 14-140 (e) (1) addresses the subsequent disposition of the property and provides that a person who used the property in aid of a crime "shall not be deemed to be the lawful claimant entitled to [it].”

Because forfeiture is a civil proceeding, petitioner need only prove by a preponderance of the evidence that the property is subject to forfeiture (see, Property Clerk v Hurlston, 104 AD2d 312, 313). The trial court found petitioner had satisfied that burden notwithstanding respondent’s plea to disorderly conduct. Indeed, the outcome of the underlying criminal charges is irrelevant to the outcome of the civil forfeiture proceeding (Property Clerk v Conca, 148 AD2d 301, 302; Matter of Property Clerk v Batista, 111 AD2d 135, 136; Property Clerk v Hurlston, supra, at 313). Because of the differing degree of proof, even acquittal would not necessarily prevent a subsequent forfeiture under the Code’s provisions (see, Property Clerk v Conca, supra, at 302; cf, People ex rel. Matthews v New York State Div. of Parole, 58 NY2d 196, 202-203 [an acquittal on criminal charges ordinarily will not have collateral estoppel effect in a subsequent parole revocation proceeding evolving from those same charges, because of the higher degree of proof the People must meet in the criminal action]).

The language of section 14-140 of the Code is mandatory and unqualified. Once petitioner established that the property had been used unlawfully, it should have been declared forfeited. The owner had no right to it; the Code provided that he could not be deemed a lawful claimant (Administrative Code § 14-140 [e] [1]). In view of this language, and absent express statutory authorization, the courts had no power to dismiss the petition in the interests of justice (see, Matter of Henry v Alquist, 127 AD2d 60, 64 [in forfeiture proceeding under Public Health Law § 3388, courts have no authority to decline to declare forfeiture once violation of statute has been established]).

Respondent relies upon CPLR 1311 (4) to support his claim that forfeiture is not required. That section provides, in part:

"The court in which a forfeiture action is pending may dismiss said action in the interests of justice upon its own motion or upon an application as provided for herein.”

As Supreme Court noted, article 13-A is a completely different forfeiture scheme than that contained in the Administrative Code. The interests of justice provision it contains is "unique” (see, 2A Weinstein-Korn-Miller, NY Civ Prac 1311.07) and nothing in the article suggests that it applies in the limited forfeiture proceedings available pursuant to Administrative Code § 14-140. Indeed, article 13-A expressly states that the terms of the statute do not limit or supersede "the lawful authority of any public officer or agency or other person to enforce any other right or remedy provided for by law” (CPLR 1352).

Neither is relief warranted under the rationale of Matter of Chaipis v State Liq. Auth. (44 NY2d 57) because of the prosecutor’s promise to aid in the release of the property. In Chaipis, petitioner, the holder of a liquor license, was implicated in an investigation of police corruption but cooperated with the People after the prosecutor promised to intervene on his behalf in proceedings against his license by the State Liquor Authority. The issue was whether the Authority could cancel petitioner’s liquor license based upon his past misconduct without considering the significant services he had performed for the prosecutor to aid in the investigation. This Court reversed the Authority’s order canceling the license and imposing other penalties and remanded the case for further action after considering the prosecutor’s promise.

In reversing, we noted that although the Authority was a separate agency, it could not simply ignore the prosecutor’s recommendation when exercising its discretion to impose a license penalty following the petitioner’s guilty plea. In the ordinary case, we stated, "the competing policies might often be resolved by permitting defendant to vacate the plea entered in reliance upon a promise made by a prosecutor without power to enforce it” (Matter of Chaipis v State Liq. Auth., supra, at 65). Chaipis could not be returned to his original position, however; at considerable personal cost and risk he had waived his rights, pleaded guilty and testified extensively for the prosecution and having done so, he could not be returned to his preplea status (cf., People v Danny G., 61 NY2d 169). Under the circumstances, the prosecutor’s recommendation, even though not enforceable, was entitled to "weighty, albeit not conclusive, consideration” by the Authority before it determined the penalty (Matter of Chaipis v State Liq. Auth., supra, at 66).

In this case, assuming the prosecutor had promised to return the property rather than having stated the intention merely to certify that the evidence was no longer needed, he could not waive petitioner’s claim. The Property Clerk is a separate and independent agency and has no discretion under the Code to recognize respondent as a "lawful claimant entitled to * * * such * * * property” (Administrative Code § 14-140 [e] [1]). The court could not intervene and compel it to do so without statutory authorization. Moreover, respondent, unlike Chaipis, rendered no services equitably entitling him to return of the vehicle. If he was misled by the prosecutor’s promise, he could move to vacate his plea of guilty and be restored to his preplea position.

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

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

Order reversed, etc.


source: Caselaw Access Project

author:
Simons, J. Titone, J.
      Bellacosa, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Bernard Harris, Appellant.
    Argued November 16, 1990;
    decided February 12, 1991

      POINTS OF COUNSEL

      Bernard Harris, pro se.

      Robert T. Johnson, District Attorney (Peter D. Coddington of counsel), for respondent.

      Ronald G. Blum, Barrington D. Parker, Jr., Debra Freeman and Marc J. Schoenfeld, amicus curiae.

   OPINION OF THE COURT

Simons, J.

This matter is before us on remand from the United States Supreme Court following reversal and reinstatement of the judgment against defendant (see, New York v Harris, 495 US —, 110 S Ct 1640, revg People v Harris, 72 NY2d 614). We must now determine whether evidence submitted in support of defendant’s conviction, though admissible under Federal standards, should be suppressed under our State constitutional provision prohibiting unlawful searches and seizures (see, NY Const, art I, § 12).

The challenged evidence consisted of statements defendant made to the police after they arrested him in his apartment for the murder of his girlfriend. The police had probable cause, developed during the five days between the crime and the arrest, but arrested defendant without a warrant in violation of the rule in Payton v New York (445 US 573). Defendant made an inculpatory statement in his apartment, another one hour later at the police station and a third statement on videotape. The first statement was suppressed as the product of the illegal arrest and the third was suppressed because it was involuntary. Those rulings are not challenged. The issue now before us relates to the second statement. Defendant claimed that it should be suppressed under the Federal and State Constitutions (see, US Const 4th Amend; NY Const, art I, § 12).

When we previously reviewed the question, we found the station house statement was tainted by the prior illegality and unredeemed by attenuation. Accordingly, we suppressed it on Fourth Amendment grounds (People v Harris, 72 NY2d 614, 620-624, supra). The holding represented our view of what the Federal Constitution required and was consistent with an earlier decision in this Court on the subject (see, People v Conyers, 68 NY2d 982; see also, United States v Johnson, 626 F2d 753, 759, affd 457 US 537; United States v George, 883 F2d 1407, 1416, n 8).

The Supreme Court subsequently granted certiorari and reversed (New York v Harris, 495 US —, 110 S Ct 1640, supra). It held that the police illegality was in the entry, not the arrest, and that exit from the apartment necessarily broke any causal connection between the wrong and the later statement. Inasmuch as the police had probable cause to arrest the defendant, the exclusionary rule did not bar use of his station house statement even though the warrantless arrest in defendant’s apartment violated the rule in Payton v New York (New York v Harris, 495 US —, —, 110 S Ct 1640, 1644-1645, supra). No attenuation was required, the Court held, because the deterrent value of suppressing this type of statement was minimal: "[i]t is doubtful * * * that the desire to secure a statement from a criminal suspect would motivate the police to violate Payton” (New York v Harris, supra, at —, at 1644).

Inasmuch as the Supreme Court ruled against defendant on his Federal claim, we are now obliged to consider on remand the other claim he advanced, whether the State Constitution requires suppression of the station house statement. We conclude that the Supreme Court’s rule does not adequately protect the search and seizure rights of citizens of New York. Accordingly, we hold that our State Constitution requires that statements obtained from an accused following a Payton violation must be suppressed unless the taint resulting from the violation has been attenuated.

Because the language of the Fourth Amendment of the United States Constitution and section 12 of article I of the New York State Constitution prohibiting unreasonable searches and seizures is identical, it may be assumed, as a general proposition, that the two provisions confer similar rights (see, People v P. J. Video, 68 NY2d 296, 304; People v Johnson, 66 NY2d 398, 406-407; People v Ponder, 54 NY2d 160, 165). Such consistency is desirable because it facilitates implementation of search and seizure rules. Nonetheless, the two documents do not present a monolithic legal code. Our federalist system of government necessarily provides a double source of protection and State courts, when asked to do so, are bound to apply their own Constitutions notwithstanding the holdings of the United States Supreme Court (see, People ex rel. Arcara v Cloud Books, 68 NY2d 553, 557, quoting People v Barber, 289 NY 378, 384). Sufficient reasons appearing, a State court may adopt a diiferent construction of a similar State provision unconstrained by a contrary Supreme Court interpretation of the Federal counterpart. The present case comes to us on remand to determine whether we should do so here.

We detailed some general rules governing independent State review in People v P. J. Video (68 NY2d 296, 301-302, supra) and have revisited the subject several times since (see, e.g., People v Torres, 74 NY2d 224, 228-230; People v Griminger, 71 NY2d 635, 638-639; People v Alvarez, 70 NY2d 375, 378-379; People ex rel. Arcara v Cloud Books, supra, at 557-558). Two different analyses are employed: an interpretive analysis which examines the language of the provisions and a noninterpretive analysis which "proceeds from a judicial perception of sound policy, justice and fundamental fairness” (People v P. J. Video, supra, at 303). In the present case, the language of the Fourth Amendment of the Federal Constitution and section 12 of article I of our own Constitution not only contain similar language but share a common history (see, People v P. J. Video, 68 NY2d 298, 304, n 4, supra; People v Johnson, 66 NY2d 398, 406, supra). If a distinction is to be made in what they require, therefore, it must rest on a noninterpretive analysis of the State provision in which the Court focuses not on the text of the clause but on matters peculiar to this State. In doing so, we have considered such factors as "any preexisting State statutory or common law defining the scope of the individual right in question; the history and traditions of the State in its protection of the individual right; any identification of the right in the State Constitution as being one of peculiar State or local concern; and any distinctive attitudes of the State citizenry toward the definition, scope or protection of the individual right.” (People v P. J. Video, supra, at 303.)

Employing this analysis in the past, we have delineated an independent body of search and seizure law under the State Constitution to govern citizen-police encounters when doing so best promotes " 'the protection of the individual rights of our citizens’ ” (People v P. J. Video, 68 NY2d 296, 304, supra, quoting People v Johnson, 66 NY2d 398, 407, supra; see, People v Torres, 74 NY2d 224, 228, supra). Whether this is a case requiring a special State rule to protect the constitutional rights of accuseds necessarily requires consideration of the consequences flowing from the police illegality and whether some deterrent is necessary to remove any incentive to the police to violate the law. It is not dispositive that defendant waived his Miranda rights before speaking. The interest in deterrence does not disappear just because defendant’s statement was voluntary or because he waived his right to counsel. Indeed, if the statement was involuntary there would never be need to consider the violation of the Search and Seizure Clause (see, e.g., Brown v Illinois, 422 US 590, 601-602; Dunaway v New York, 442 US 200, 216-217; Taylor v Alabama, 457 US 687, 690).

We turn, therefore, to the circumstances peculiar to New York and conclude that although attenuation may not be necessary to deter Payton violations under Federal law or in the Nation generally, the Supreme Court’s rule is not adequate to protect New York citizens from Payton violations because of our right to counsel rule.

The safeguards guaranteed by this State’s Right to Counsel Clause are unique (NY Const, art I, § 6). By constitutional and statutory interpretation, we have established a protective body of law in this area resting on concerns of due process, self-incrimination and the right to counsel provisions of the State Constitution which is substantially greater than that recognized by other State jurisdictions and "far more expansive than the Federal counterpart” (People v Bing, 76 NY2d 331, 338-339; People v Davis, 75 NY2d 517, 521; People v Hobson, 39 NY2d 479, 483-484; see also, 1 LaFave and Israel, Criminal Procedure § 6.4, at 468-469; and Galie, The Other Supreme Courts: Judicial Activism Among State Supreme Courts, 33 Syracuse L Rev 731, 764). The Court has described the New York rule as a "cherished principle”, rooted in this State’s prerevolutionary constitutional law and developed "independent of its Federal counterpart” (People v Settles, 46 NY2d 154, 160-161). The "highest degree of [judicial] vigilance” is required to "safeguard” it (see, People v Cunningham, 49 NY2d 203, 207). Manifestly, protection of the right to counsel has become a matter of singular concern in New York and it is appropriate that we consider the effect of Payton violations upon it.

The different views expressed by the Supreme Court and this Court in the case before us illustrate the distinctive Federal and State right to counsel rules and the concerns they engender. Under both Federal and State law, the right to counsel attaches once criminal proceedings have commenced (Kirby v Illinois, 406 US 682; People v Samuels, 49 NY2d 218). Under the Federal rule, however, criminal proceedings do not necessarily start when an arrest warrant is issued. Police may interrogate a suspect in the absence of a lawyer without violating his or her right to counsel even though the arrest is made pursuant to a warrant (see, United States v Pace, 833 F2d 1307, 1310-1312; United States v Reynolds, 762 F2d 489, 493; 1 LaFave and Israel, Criminal Procedure § 6.4 [e]). But in New York, criminal proceedings must be instituted before the police can obtain a warrant. Our Criminal Procedure Law provides that an arrest warrant may not issue until an "accusatory instrument” has been filed (CPL 120.20; and see, People v Blake, 35 NY2d 331, 339-340). Thus, in New York once an arrest warrant is authorized, criminal proceedings have begun, the indelible right to counsel attaches and police may not question a suspect in the absence of an attorney (People v Samuels, 49 NY2d 218, 221-222, supra; People v Settles, 46 NY2d 154, supra).

The practical effect of these rules is that little incentive exists for police to evade Payton in the hopes of securing a statement under Federal rules and, as the Supreme Court concluded, the incremental deterrent resulting from suppressing statements made after an illegal arrest in the home would be minimal. In New York, however, police are prohibited from questioning a suspect after an arrest pursuant to a warrant unless counsel is present. They have every reason to violate Payton, therefore, because doing so enables them to circumvent the accused’s indelible right to counsel. Indeed, the evidence indicated that the police were motivated by just such considerations in this case. Even though they had developed probable cause for the arrest early in their investigation, they did not secure a warrant but arrested defendant in his apartment, a procedure they knew was prohibited by their departmental rules, and then questioned him in the absence of an attorney (see, People v Harris, 72 NY2d 614, 622, supra). If the police had entered the apartment pursuant to a warrant, they could not have questioned defendant in the absence of counsel. They should not enjoy greater latitude simply because they neglected to obtain a warrant, as Payton requires, and entered the apartment illegally. It is this interplay between the right to counsel rules established by New York law and the State’s search and seizure provisions which provides a compelling reason for deviating from the Supreme Court’s determination in this case. We adhere to our earlier decision, therefore, and hold that statements obtained from an accused following an arrest made in violation of Payton are not admissible under the State Constitution if they are a product of the illegality.

Based upon the facts found by the courts below, we determine that the causal connection between the illegal arrest and defendant’s statement in the police station was not sufficiently attenuated from the Payton wrong because of the temporal proximity of the arrest and the statement, the absence of intervening circumstances and the purpose and flagrancy of the police misconduct (see, People v Conyers, 68 NY2d 982, supra; People v Johnson, 66 NY2d, supra, at 407; People v McGrath, 46 NY2d 12, 28-29). Inasmuch as the evidence of attenuation was insufficient as a matter of law, the station house statement must be suppressed under article I, § 12 of the New York Constitution (see, People v Harris, 72 NY2d 614, 620-623, supra).

Accordingly, on reargument following remand from the United States Supreme Court, the order of the Appellate Division should be reversed, defendant’s statement suppressed and a new trial ordered.

Titone, J.

(concurring). The first time this case was before the Court, I concurred in the suppression of defendant’s statement on constraint of People v Conyers (68 NY2d 982), but I argued that under the Fourth Amendment Brown v Illinois (422 US 590) attenuation principles were not applicable and that, accordingly, suppression was not required (72 NY2d 614, 625-630 [Titone, J., concurring]). Now that the United State Supreme Court has held that the United States Constitution does not, in fact, compel suppression (495 US —, 110 S Ct 1640) and the Court is urged to consider the issues under the New York State Constitution, I concur wholeheartedly in my colleagues’ conclusion that the special New York right to counsel rules provide sound support for a departure from Federal precedent and justify applying our own State attenuation analysis in cases involving Payton violations (Pay-ton v New York, 445 US 573).

Bellacosa, J.

(dissenting). The United States Supreme Court has ruled that the New York State Court of Appeals erred in reversing the murder conviction of defendant-appellant Harris (New York v Harris, 495 US —, 110 S Ct 1640, revg 72 NY2d 614 [Wachtler, Ch. J., and Bellacosa, J., dissenting]). Undeterred, the same majority of this Court creates a new theory upon which to again reverse and suppress a station house confession, deciding that it is mandated by State constitutional considerations. We strongly disagree and would affirm the conviction.

The majority’s dogged choice in this case is not compelled or supported by existing Federal or State precedents or principles. Rather, to accomplish its result, the majority:

(1) rejects the analysis, wisdom and experience of the United States Supreme Court with respect to its Payton (Payton v New York, 445 US 573) rule;

(2) rejects the undisturbed attenuation fact findings of both of our own lower courts in violation of our own State constitutional review limitations;

(3) rests its result on a significantly expanded State right to counsel concept, injected into this case for the first time after all appeals have been exhausted, including to the United States Supreme Court;

(4) converts a pure Fourth Amendment search and seizure dwelling protection case into a theoretical right to counsel construct;

(5) justifies its yonder reach as necessitated by a perceived enhancement of deterrence policy;

(6) bypasses this Court’s long-standing "issue preservation” principles; and

(7) unsettles law principles in all of the above areas and, most disconcertingly, adds the implication that the police are legally and constitutionally required to commence a criminal proceeding as soon as they believe they have probable cause.

The choice to discount and disregard all these jurisprudential policies and principles in this unworthy case is astonishing and is effected against a most unusual evidentiary and procedural backdrop.

This case is not about the police invading the defendant’s dwelling. They had legal and constitutional probable cause to believe that defendant had committed a heinous murder and they did what society expects its law enforcement officials to do: they set out to locate and apprehend the suspected murderer. They knocked on his apartment door, they identified themselves, they asked to be let in, defendant let them in, sipped wine and engaged them in conversation after being given warnings on his rights. He even told them how glad he was that they came for him. He then confessed to slitting his girlfriend’s throat, nearly decapitating her, because he thought she was a bad mother. That confession, made in his apartment, was suppressed, was not used in his trial, and is not at issue here. An hour later at the precinct and after further warnings, advisements and personal waiver of rights, defendant again voluntarily confessed.

The legality of the second confession, used in evidence at his trial (nonjury and without defense counsel, at defendant’s express request), is the only question again before this Court under the standard mandate from the United States Supreme Court for "proceedings * * * in conformity with the judgment of this [United States Supreme] Court above stated, as accord with right and justice, and the Constitution and Laws of the United States.” The Supreme Court mandate directs this Court of Appeals to proceed "not inconsistently] with the opinion of this [United States Supreme] Court.” We believe the majority today proceeds "inconsistently” and not "in conformity” with that part of the United States Supreme Court’s opinion declaring the law of the land on its Payton principle and on the sweep of the deterrent aspect of the exclusionary rule flowing from that principle. No properly or timely presented or relevant "local” or "parochial” interest of New York justifies that affront.

There can be little dispute that the Fourth Amendment of the Federal Constitution and article I, § 12 of the New York • State Constitution "contain similar language [and] share a common history” (majority opn, at 438). Inasmuch as the majority suggests that they appear to confer similar protections, we believe they should be consistently construed in this case. Nevertheless, the majority declares its deviation from the United States Supreme Court decision, and clings to its rejected prior result, by resorting to a deus ex machina — a newly fashioned Payton/Samuels right to counsel (see, Payton v New York, 445 US 573, supra; People v Samuels, 49 NY2d 218). Most assuredly, that is a novel and significantly expanded State constitutional hybrid.

A fundamental flaw in the majority’s approach is that this case has not been in its six-year history — up to today — about any kind of right to counsel. All the courts so far have struggled with a pure Fourth Amendment Payton right: protection against warrantless arrests in a dwelling. Indeed, the Court’s prior majority opinion (People v Harris, 72 NY2d 614, 620, supra) acknowledged that the precise constitutional infraction was a Payton violation, not the infringement of some artificially triggered right to counsel.

The precise holding of People v Samuels (49 NY2d 218, supra) is that a defendant’s right to counsel attaches when a felony complaint is filed and an arrest warrant issues, and that the right cannot thereafter be waived in the absence of counsel. Defendant Harris was arrested without a warrant and with no felony complaint filed and with no criminal proceeding having been begun. The Samuels counsel rule is therefore on its face not applicable. Yet the majority "deems” the warrant prerequisite to have been met, activating the right to counsel — a clear fictional extension of the rule itself. The precise Samuels holding has never been so extended even in a true right to counsel case. Moreover, the majority makes this policy expansion in the immediate wake of this Court’s recent contraction of the right to counsel protection propounded in a true right to counsel case (People v Bing, 76 NY2d 331). Then, Bing is incongruously cited in support of New York’s "peculiar” (majority opn, at 439) right to counsel tradition. As dissenters here, we remain equal, true, steadfast and proud participants in the appropriate New York right to counsel tradition, but we are completely baffled by the majority’s peculiar importation of that tradition into this Payton case.

The particular New York right to counsel angle is claimed to be needed to serve some newly perceived special deterrent objective, directed against the police. Keeping in mind, however, that the conduct to be deterred is that which violates Payton’s dwelling sanctuary protection, we fail to see how that objective is served by suppressing the subsequent precinct confession. It is speculative that the police intended to violate defendant’s Payton right and even more speculative that they intended to evade any of his New York counsel rights. Nor is there any evidence that they "exploited”, in the legal or actual sense of that word, the Payton dwelling infraction in the subsequent precinct interrogation. The police were under no constitutional or legal obligation to obtain a warrant and thus commence the criminal proceeding at a particular time which some court might thereafter determine to be the precise moment of truth. Many entirely legal and potentially unfolding courses of action were still open to the police to properly continue their investigation and acquisition of admissible evidence (e.g., spontaneous, consensual, nonprotected, attenuated or even "lucky” encounters and acquisitions — fact matters only definitively resolved months and years later by reflective judicial adjudication) (compare, People v Davis, 75 NY2d 517). The record shows that the police intended to locate the defendant and does not show that they intended to arrest him illegally. Indeed, there is evidence and proper inference that they intended to arrest him only after detérmining his location and then getting a warrant, if other legal means did not present themselves.

We therefore see no reason to stretch precedent and twist logic in order to rescue this defendant from a United States Supreme Court decision against him. As the United States Supreme Court itself explained in rejecting an argument that suppression here would deter Payton violations:

"[T]he principal incentive to obey Payton still obtains: the police know that a warrantless entry will lead to the suppression of any evidence found or statements taken inside the home. If we did suppress statements like Harris’, moreover, the incremental deterrent value would be minimal. Given that the police have probable cause to arrest a suspect in Harris’ position, they need not violate Payton in order to interrogate the suspect. It is doubtful therefore that the desire to secure a statement from a criminal suspect would motivate the police to violate Payton. As a result, suppressing a station-house statement obtained after a Payton violation will have little effect on the officers’ actions, one way or another.” (New York v Harris, 495 US, at —, 110 S Ct, supra, at 1644.)

This analysis makes common sense and reflects a realistic judicial understanding of the dynamic acted out on the hard streets by the participants in such matters, without sacrificing any constitutional values, including our own State’s.

The majority rejects that superior perspective and then adds insult to the injury by conclusorily relieving the Court of Appeals of its long-standing obligation to respect and abide by our own lower court undisturbed factual findings. The suppression Justice who heard the police witnesses determined that there was "a sufficient attenuation; the [r]ights were given again” and that the statement in the station house "was independently given by [defendant] voluntarily”. Four Justices constituting the majority at the Appellate Division voted to affirm defendant’s conviction and expressly agreed with the Trial Justice that there was attenuation, concluding that "the police station statement was 'sufficiently an act of free will to purge the primary taint of the unlawful invasion’ ” (124 AD2d 472 [cite omitted]) and that "any 'taint’ resulting from an illegal arrest was removed by the lapse of time between the statements and the rereading of the Miranda warnings” (124 AD2d, supra, at 475). The record evidence supports and confirms this key chain of attenuating events: the change of scene from a "protected” dwelling to an "unprotected” precinct; intervening passage of about one hour’s time; and renewed warnings by the police authorities and new waivers by defendant.

There is no justification for conclusorily sweeping aside these facts and rulings as legally insignificant. Nor should consideration of the full evidentiary picture of this case be foreclosed in this unusual remand/reargument procedural posture. All the evidence must be freshly relevant and independently pertinent to the issues as the majority has now cast them because they concededly turn anew on "a judicial perception of sound policy, justice and fundamental fairness” (People v P. J. Video, 68 NY2d 296, 303, cert denied 479 US 1091). Thus, we cannot comprehend the majority’s determination, apparently made as a matter of law and of "sound policy, justice and fundamental fairness”, to suppress a precinct confession that all the lower State courts have found to be attenuated from the Payton violation and that the United States Supreme Court has determined to be admissible because attenuation is irrelevant.

The majority’s rejection of the undisturbed attenuation findings is strikingly inconsistent with their insistence that the Court is bound by a very shaky determination that the defendant had not consented to the police entry into his apartment (as the police then believed, as two fact-reviewing Appellate Justices found, and as two other fact-reviewing Justices found too close to call). The majority cannot have it both ways. Intellectual and analytical discipline demand some consistency at least in this respect to avoid breeding disrespect for the decision-making process. Why should law enforcement officials be "deterred” by a court ruling that unfairly brands them in belated hindsight as flagrant wrongdoers and circumventers of the law, and why should they respect its edict which simultaneously rejects the adjudicative work of all the other courts in this very case in these circumstances? It is the epitome of institutional egocentricity, a kind of Copernican view of the judicial universe, to reject (1) the United States Supreme Court analysis on a rule it first established (Payton v New York, 445 US 573, supra); (2) the Supreme Court’s latest interpretation of the deterrence and application breadth of that rule (New York v Harris, 495 US —, 110 S Ct 1640, supra); and (3) the undisturbed factual findings of both our own lower courts (five Justices in all) on the dispositive attenuation factual issue.

Legally and literally, today’s holding metamorphosizes the Payton private dwelling sanctuary into the public precinct house, and then further transforms the jurisprudence by converting Payton’s Fourth Amendment dwelling right into a fused Fifth and Sixth Amendments personal right to counsel —State version. The history of NY Constitution, article I, § 12 and its proud right to counsel tradition, as applied in a Payton context, do not support leapfrogging beyond the United States Supreme Court’s decision in this procedurally convoluted case. The majority effectively relegates that Supreme Court’s work to an academic judicial exercise with no consequence for the real outcome of this case. One has to believe that the United States Supreme Court has a continuing interest in the sweep and application of its nationally propounded Payton rule and interpretation, for why else would it have granted certiorari, heard argument, reversed the case on the merits, issued its definitive opinion of the Court, and remanded to this Court for proceedings "not inconsistent with [its] opinion”?

Inasmuch as we cannot concur in the majority’s bold latest chapter to this case, we vote to affirm the order of the Appellate Division affirming the judgment of conviction for murder, as reinstated by the United States Supreme Court.

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

Upon reargument, following remand by the Supreme Court of the United States, order reversed, etc.

      . The dissent contends that the police intended merely to locate defendant and then obtain a warrant, if necessary (dissenting opn, at 445). The trial court found as a fact that the three officers went to the apartment to take defendant into custody, that with guns drawn they blocked the exits from the apartment, knocked on the door and, when defendant answered the knock, entered the apartment and arrested him. It concluded on this evidence that "[n]o more clear violation” of Payton could be established. Three reviewing courts have accepted that finding: the Appellate Division, which left Supreme Court’s factual findings undisturbed (124 AD2d 472); this Court (72 NY2d 614), and the United States Supreme Court (495 US —, —, 110 S Ct 1640, 1642). Indeed, the statement obtained in the apartment, although voluntary for Fifth Amendment purposes, was suppressed because the entry was unlawful and the parties no longer challenge that ruling.

      . The dissent takes the view that the result on remand is controlled by the Supreme Court’s ruling (see, dissenting opn, at 443). Quite the contrary is true. Defendant sought relief under both the State and Federal Constitutions. Relief on Federal grounds has now been denied by the Supreme Court. We have no choice, therefore, except to address and resolve the State claim because the conduct complained of must also satisfy our State Constitution (see, People ex rel. Arcara v Cloud Books, 68 NY2d 553, 555-556; People v Alvarez, 70 NY2d 375, 378). This would be so whether we had determined that relief is not available under the United States Constitution in the first instance (see, e.g., People v Cintron, 75 NY2d 249; Cooper v Morin, 49 NY2d 69) or on remand from the Supreme Court after it has decided the issue, as in this case (see, e.g., People v Alvarez, supra; People ex rel. Arcara v Cloud Books, supra; People v Class, 67 NY2d 431).

      . The dissenters contend that the Court is bound by the finding of attenuation below (dissenting opn, at 446).
      This Court may not find facts, but it is within our power to review the facts as found by the courts below to determine whether they are sufficient under the applicable legal standard. This familiar rule was stated by the dissent in the first appeal. When arguing unsuccessfully that the entry was consensual, the dissenters stated "this question is reviewable by us. Both lower courts held without analysis that the first confession was suppressible. However, simply put, when using the correct legal standard together with the facts found by those courts this conclusion is without basis (Cohen and Karger, Powers of the New York Court of Appeals §§ 114, 115 [rev ed])”. (People v Harris, 72 NY2d 614, 628 [Wachtler, Ch. J., dissenting].)


author: Titone, J. Bellacosa, J.

text:
    The People of the State of New York, Respondent, v Deborah A. Moquin, Appellant.
    Argued January 8, 1991;
    decided February 19, 1991

      POINTS OF COUNSEL

      F. Stanton Ackerman for appellant.

      Sol Greenberg, District Attorney (Michael J. Connolly of counsel), for respondent.
   OPINION OF THE COURT

Titone, J.

We have previously held that when a court has accepted a guilty plea and the defendant has begun to serve the resulting sentence, the court has no statutory or "inherent” authority to vacate the judgment at the People’s request, except in certain limited circumstances (see, Matter of Kisloff v Covington, 73 NY2d 445; Matter of Campbell v Pesce, 60 NY2d 165). In this case, we are asked to consider whether a different principle should be applied when the guilty plea was entered after the dismissal of one of the counts in a multicount indictment and the dismissal ruling has subsequently been reversed on the People’s appeal. In these circumstances, we hold that the well-established rule precluding vacatur of the plea remains applicable.

Defendant was charged with second degree murder, second degree manslaughter and six other counts in connection with an automobile accident in which a teen-age girl was killed and two others sustained serious physical injuries. On defendant’s motion, County Court dismissed the murder count for legal insufficiency. Thereafter, over the People’s opposition, County Court accepted defendant’s plea of guilty to the remaining indictment counts and sentenced her to seven concurrent terms of imprisonment.

Shortly after defendant’s plea was accepted, the People filed a notice of appeal from the County Court order dismissing the murder count. Some nine months later, after defendant had begun to serve her sentence, the Appellate Division reversed the County Court order and reinstated the murder charge for reasons not relevant to this appeal (142 AD2d 347). On reargument, the court declined to vacate defendant’s plea and sentence on the ground that such relief was not available in the context of the People’s interlocutory appeal (see, 153 AD2d 189, 191).

The People then applied to County Court for the same relief. The court, however, denied the People’s application and instead granted defendant’s cross motion to dismiss the reinstated murder count on the ground that double jeopardy principles barred further prosecution. The Appellate Division once again reversed, holding that, in view of the reinstatement of the highest count in the indictment and the People’s stated opposition to the plea, the action should have been restored to the prepleading stage (citing CPL 220.10 [4]). We now reverse and reinstate the County Court order.

The initial — and most critical — question in this appeal is whether the trial court had authority to vacate the previously imposed plea and sentence at the People’s request. Absent such authority, the judgment entered upon defendant’s plea could not be reopened.

An examination of the Criminal Procedure Law reveals no statutory source of authority to undo the judgment in these circumstances. CPL 440.10 (1) (a) authorizes the court to entertain postjudgment motions by defendants to vacate on the ground that the court lacked jurisdiction, and CPL 440.40 provides for postjudgment motions by the People to set aside legally invalid sentences; however, there is no provision which confers the power to set aside a plea at the People’s behest (see, Matter of Campbell v Pesce, 60 NY2d 165, 168, supra).

Nor does the law recognize any inherent judicial authority to vacate the plea and restore the action to the prepleading stage under the facts presented here. We have previously held that the trial courts’ "inherent” authority may be used to vacate an illegally accepted plea before sentence is imposed (People v Bartley, 47 NY2d 965) and, in the absence of a specific constitutional impediment, to vacate a final criminal judgment on grounds of fraud or misrepresentation (Matter of Lockett v Juviler, 65 NY2d 182, 186-187 [on mot by People]; Matter of Lyons v Goldstein, 290 NY 19, 25 [on mot by defense]; see, Matter of Kisloff v Covington, supra, at 451). Additionally, although CPL 430.10 prohibits a court from altering a sentence once its "term or period * * * has commenced,” we have held that the court’s " 'inherent power to correct [its] records [in] relation] to mistakes, or errors, which may be termed clerical’ ” extends to correcting sentencing errors where the court merely misspoke or a patent clerical mistake has been made (People v Minaya, 54 NY2d 360, 364, cert denied 455 US 1024; People v Wright, 56 NY2d 613, 614; People ex rel. Hirschberg v Orange County Ct., 271 NY 151, 156; Dalrymple v Williams, 63 NY 361, 362; see, Matter of Kisloff v Covington, 73 NY2d 445, 450, supra; Matter of Campbell v Pesce, supra). However, as our recent case law makes clear, the limited "inherent authority” to vacate a plea after imposition of sentence may not be utilized to remedy a substantive legal error in the acceptance of the plea, at least after the defendant has begun serving his sentence.

In Matter of Kisloff v Covington (supra), for example, we rejected the People’s postjudgment effort to vacate a plea that had been accepted at a time when all parties were laboring under the misimpression that the crime to which the defendant had pleaded was a class E felony when, in fact, it was a class A misdemeanor. As a result of the error, defendant’s request to be resentenced as a class A misdemeanant had to be granted, and the People were deprived of the benefit of the plea bargain to which they had agreed. Similarly, in Matter of Campbell v Pesce (supra), the plea that the trial court accepted was one that had resulted from an unlawful reduction of the indictment charges in violation of the armed felony restrictions in CPL 180.50 (2) (b) (ii). Nonetheless, despite this substantive error, this Court held that the trial court had no power to vacate the plea.

When these principles are applied to the facts in the present case, it becomes apparent that there must be a reversal. First, the trial court’s acceptance of defendant’s plea without the People’s consent simply cannot be characterized as error when viewed from the perspective of the only relevant time frame — the date of the plea’s entry. At that point, the top murder count had been dismissed and, whether properly or not, the indictment then consisted solely of the seven remaining counts. Defendant’s plea to those seven counts thus constituted a plea to the "entire indictment” and no prosecutorial consent was necessary (see, CPL 220.10 [2]).

Moreover, it is clear from the case law that the court below had no statutory or "inherent” authority to vacate the judgment after defendant’s service of the sentence had commenced. The claimed error was not a mere clerical matter (see, e.g., People v Wright, supra; People ex rel. Hirschberg v Orange County Ct., supra), and the judgment was not obtained by fraud or misrepresentation (see, Matter of Lockett v Juviler, supra). Indeed, the claimed error, if any, was no different in effect from the error in Matter of Campbell v Pesce (supra). In both instances, the trial court made a decision affecting the character of the indictment (in Campbell by reducing a count and in this case by dismissing a count), thereby enabling the defendant to enter a plea which would otherwise have been impermissible. Just as the error in reducing the count without conducting a CPL 180.50 (2) (b) (ii) inquiry was not a proper ground for undoing the resulting plea, the court’s error in dismissing the top count of the indictment in this case does not furnish a basis for vacating this defendant’s plea and sentence.

The efforts of the Appellate Division majority, and of the dissent here, to avoid the effect of our recent case law by invoking the concept of a "conditional” or "contingent” plea are unavailing. There is simply no authority, statutory or otherwise, to support recognition of such a legal fiction in this context. Furthermore, the suggested approach, which would apparently treat defendant’s plea as a nullity nunc pro tunc as a consequence of the subsequent intermediate appellate reversal, is in conflict with Kisloff and Campbell, as well with CPL 430.10 (precluding alteration of sentence after its commencement).

Indeed, the distinction between the arguments rejected in those cases and the "conditional plea” notion advanced here is more a matter of semantics than substance. Characterizing a plea as "conditional” or "contingent,” as the court below and the dissent here advocate, is merely another way of saying that the plea is subject to vacatur upon the occurrence of a condition subsequent, namely a subsequently made determination that its acceptance was, in part, the product of a legal error. We have already held that, once the sentence has been imposed and the defendant has begun to serve it, a guilty plea is final and not subject to defeasance upon a trial court’s determination of prior legal error made on a postjudgment motion by the People (Matter of Kisloff v Covington, supra; Matter of Campbell v Pesce, supra). Since the distinction is not analytically significant, the outcome must be the same in this case, and the plea must be treated as impervious to defeasance, where the subsequent determination of error was made by an intermediate appellate court on the People’s appeal.

Finally, County Court properly granted defendant’s cross motion to dismiss the second degree murder count a second time, since "any further criminal proceedings on the original charges [we]re barred by [defendant’s] constitutional right not to be twice placed in jeopardy” (Matter of Kisloff v Covington, supra, at 452; accord, Matter of Campbell v Pesce, supra, at 169). The dissent’s reference to "restoring the case to its prepleading stage” (dissenting opn, at 457, citing CPL 40.30 [3]) does not aid the analysis of the double jeopardy issue. Reprosecuting a defendant after the case has proceeded to judgment always involves restoring the matter to the prepleading stage. It thus begs the question to observe that the Appellate Division’s reversal, if given full effect, would have resulted in the vacatur of the judgment and the restoration of the case to the prepleading stage. Regardless of how the problem is formulated, the salient issue remains whether the Due Process Clause of the Federal Constitution permits that result. In this instance, since the criminal proceeding had ultimately terminated in a final judgment against defendant and, "[t]here [was] no basis for * * * vacatur of the plea” following the People’s appeal, the Double Jeopardy Clause of the United States Constitution precludes the revival of the accusatory instrument and prohibits defendant’s reprosecution, notwithstanding CPL 40.30 (3) (Matter of Campbell v Pesce, supra, at 169; cf., People v Bartley, supra [permitting vacatur of illegally accepted plea prior to imposition of sentence]; see also, People v Mayo, 48 NY2d 245).

In response to the policy concerns raised by the dissent here and the majority in the court below, we note only that their fear of frustrating the People’s right to appeal pursuant to CPL 450.20 (1) is, at best, exaggerated. Although a stay was unavailable to the People in these circumstances (see, CPL 460.50; cf., CPL 210.20 [6] [c]), they could have at least attempted to preserve their rights by requesting a presentencing adjournment pending disposition of their interlocutory appeal (see also, CPL 30.30 [4] [a]). The fact that the Legislature has recently provided for a stay pending the People’s appeal when the trial court has modified an indictment pursuant to the newly enacted CPL 210.20 (1-a) (see, CPL 450.20 [1-a]) while making no similar provision in the case of the traditional CPL 450.20 (1) appeal from an order dismissing an indictment count suggests that the concerns articulated by the dissent are not shared by the legislative branch of our State government.

Accordingly, the order of the Appellate Division should be reversed and the order of County Court reinstated.

Bellacosa, J.

(dissenting). We would affirm the order of the Appellate Division, for the reasons stated by Justice Casey (153 AD2d 189), adding these further comments to explain our respectful difference of view from that expressed by the majority of this Court.

Defendant, who had previously been convicted of DWAI and DWI, was charged in an eight-count indictment by a Grand Jury with driving while drunk. She caused the death of a teen-age passenger in the other vehicle and serious injuries to the teen-ager’s parents by striking their vehicle head-on on the wrong side of the highway one night in 1987 (People v Moquin, 142 AD2d 347).

On defendant’s motion, County Court dismissed for insufficiency the top count of murder, second degree, by depraved indifference to human life. Defendant pleaded guilty to the seven remaining counts in the indictment on Monday after the decision on the top count was announced on the previous Friday. The guilty plea was accepted by County Court over the People’s strenuous objections on the record.

We believe this does not constitute a legally complete and final plea to the "entire indictment” as that term is used and intended in CPL 220.10 (2). Under the circumstances of this case, County Court’s action was contingent, by operation of law, upon the Appellate Division’s determination of the propriety of County Court’s dismissal of the top count of the indictment. Our conclusion is fortified and narrowed in application by the People’s timely taken appeal as of right from the dismissal of the count charging defendant with murder (CPL 450.20 [1]). Because the People refused to consent to defendant’s plea to less than the entire indictment and the Appellate Division subsequently overturned the trial court’s dismissal of the top count of the indictment and ordered it restored, County Court had the power to vacate the prior plea and judgment upon remittal from an appellate court, and was given the opportunity to effectuate the remittitur of the Appellate Division, thus restoring the case to its prepleading stage (CPL 40.30 [3]).

This proper corrective action, undoing a guilty plea that was burdened by the People’s dual statutory rights of consent to plea and of appeal from dismissals, is a perfectly commonplace and licit sequel to an appellate disposition. The only error we review is the County Court’s refusal to reinstate the count and vacate the guilty plea. The Appellate Division’s order now under review which gives effect to its prior ruling is proper and ought to be sustained.

This case does not involve the People’s efforts to have the trial court vacate a mistaken or illegally imposed negotiated plea or the trial court’s inherent power to accomplish that feat on its own (cf., Matter of Kisloff v Covington, 73 NY2d 445, 447 [People consented to defendant’s unauthorized plea]; cf, Matter of Campbell v Pesce, 60 NY2d 165 [prosecutor agreed to defendant’s plea of guilty to reduced counts in violation of CPL 180.50 (2) (b) (ii)]). Unlike the prosecutions in those two cases, relied on heavily by the majority, the prosecutor here never consented to defendant’s plea of guilty. Instead, the prosecutor objected and pursued the People’s statutory appeal rights. Moreover, unlike the cases cited by the majority, this is not a plea negotiation case, sought to be belatedly altered at nisi prius alone. Rather, it qualifies as a plea bargain case, attained without the other significant party’s (the People) consent or even participation, which frustrates appellate review and prerogatives. Also unlike those cases, the trial court here was not attempting to correct its own error, but was faced with a remitted appellate correction of adjudicated trial court error to which it was obliged to give legal effect. We disagree with the majority’s simple casting aside of these critical legal and factual distinctions as "analytically [in]significant” (majority opn, at 455).

In requiring the People’s consent to a defendant’s guilty plea to less than an entire indictment (CPL 220.10 [4] [a]) and affording the People the right to appeal a dismissal of a count of the indictment (CPL 450.20 [1]), the Legislature never intended to permit a defendant to achieve a unilaterally effected guilty plea to a legally conditioned reduced indictment, which results in a contradictory deprivation to the People of their dual right to consent to plea and to appeal. The "defeasance” of a trial court’s prior acceptance of plea and sentence, which concerns the majority in this context (majority opn, at 455), is no more significant than the divestiture of the intermediate appellate tribunal of its rightly invoked jurisdiction and adjudicative action brought about by the reversal analysis in this case.

In sum, the reversal of the order in this case, leaving intact the guilty plea to only part of an indictment after the second appeal cycle has been completed, frustrates the People’s statutorily conferred and exercised right to appeal from the order of dismissal (see, CPL 450.20 [1]); effectively gives the defendant unilateral power against the People’s exercise of an efficacious right to appeal from the order of dismissal; nullifies the Appellate Division’s adjudicative authority in reinstating the erroneously dismissed murder count; violates the People’s consent to plea prerogative (CPL 220.10 [4]); and, finally, results in the legal and practical anomaly of a properly reinstated murder charge having nowhere to go and of a guilty plea conviction purporting to resolve an entire indictment — a logical and legal contradiction in this case.

We agree with the Appellate Division conclusion that "[n]either the statutory provisions themselves nor the legislative history suggests that the Legislature intended such an incongruous result” (153 AD2d 189, 193), adding that neither do any of our precedents predict or warrant such a legally incongruous result. Orderly, fair and authorized procedures require that criminal cases should not be resolved in the manner evident in this case.

We believe the Appellate Division order under review is fully authorized and consistent with long-standing statutory, appellate and plea remedy rubrics, and is not barred by double jeopardy precedents or related principles.

The order of the Appellate Division should be affirmed.

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

Order reversed, etc.

      . CPL 220.10 (2) provides that a defendant may as a matter of right enter a plea of "guilty” to the entire indictment. The dissent seems to be arguing that the term "entire indictment,” as used in this statute, means the indictment in the form handed up by the Grand Jury, without any subsequent judicial modifications. Under the dissent’s view, it would appear that a defendant can never plead guilty as a matter of right and without the People’s consent to anything less than the full set of counts charged by the Grand Jury. However, this view fails to take into account the numerous circumstances in which indictments handed up by a Grand Jury require modification because of overcharging, misjoinder, duplicativeness and other legal errors. In these circumstances, the approach advanced by the dissent would, in essence, place the defendant in the position of having to choose between pleading to defective or unsupported counts or sacrificing his right to plead guilty without prosecutorial consent. Such a result is unacceptable because it would unnecessarily hamstring the trial court and give the prosecutor an unfair degree of control over the pleading process.

      . Similarly, the dissent’s repeated assertion that this case is different from Kisloff and Campbell in that the plea in this case was accepted without the People’s consent is unpersuasive. Even if we were to adopt the dissent’s premise that this acceptance was error, no explanation is offered as to why such an "error” should be treated differently from the substantive pleading errors that occurred in Campbell and Kisloff and were deemed insufficient in those cases to permit the court to unwind the plea.

      . We intimate no view as to the proper outcome in analogous cases involving appeals from CPL 210.20 (1-a) rulings, except to note that, in such instances, the statute expressly makes a stay available to the People (see, CPL 210.20 [6] [c]).

       Amendments in 1990 to CPL 210.20 and 460.40 are also instructive, though not directly applicable or in effect at the time of this case and therefore not governing (L 1990, ch 209, §§ 14, 19; CPL 210.20, 460.40). There, in a new, broader procedural setting, the Legislature has recognized that adversarial traps in these kinds of situations must be avoided. The new inspect-and-reduce judicial authorization provides, for example, that a court order reducing a count or counts of an indictment or dismissing an indictment "shall be stayed for thirty days” following entry of such order unless the People waive such a stay, during which time the People may exercise their right to appeal the order which stays the effect of the order of dismissal. Thus, no plea in that procedural setting (different from that here, to be sure) to a remaining set of counts could be entered without the People’s consent because the entire indictment would still be legally intact for purposes of CPL 220.10.


author: Titone, J.

text:
    The People of the State of New York, Respondent, v James Byrne, Appellant.
    Argued January 10, 1991;
    decided February 19, 1991

      POINTS OF COUNSEL

      Nicholas E. Tishler for appellant.

      Robert T. Johnson, District Attorney (Stanley R. Kaplan and Peter D. Coddington of counsel), for respondent.

      David J. Wukitsch for New York State Restaurant Association and others, amici curiae.

   OPINION OF THE COURT

Titone, J.

Section 65 (1) of the Alcoholic Beverage Control Law prohibits the sale of alcoholic beverages to minors, and section 130 (3) makes a violation of that prohibition a misdemeanor. It is well established that the crime created by these statutes is one of "strict liability” for which proof of the accused’s guilty knowledge or intent is not required (e.g., People v Leonard, 8 NY2d 60; People v Werner, 174 NY 132). The question presented on this appeal is whether these statutes also create a crime of "vicarious liability,” permitting conviction of a natural person for the acts of another solely because of the parties’ business relationship.

On March 12, 1983, Thomas Byrne, defendant James Byrne’s brother, allegedly sold alcoholic beverages to two individuals who were under the age of 19. The alleged sales occurred in a Bronx County tavern known as Manions, which was owned by a corporate entity called Tullow Taverns, Inc. Defendant and his brother Thomas each owned 50% of the shares of this corporation. Additionally, defendant held the title of corporate president, while Thomas was designated secretary-treasurer.

Defendant and Thomas Byrne were both charged with violating Alcoholic Beverage Control Law § 65 (1) by "sell[ing] or causing] or permitting] to be sold alcoholic beverages, to wit; beer to [a] person * * * being actually or apparently under the age of nineteen years.” Following pretrial motions, the charges against defendant were dismissed because there were no "factual allegations that [defendant] was present in the tavern at the time the alcoholic beverages were served or that he had notice of or participated in such conduct.” (128 Misc 2d 448, 449.) However, the Appellate Term reversed the dismissal order and reinstated the charges, holding that "[t]he defendant, if adjudged a responsible officer of the corporate licensee, may be held criminally liable notwithstanding his lack of knowledge of, or participation in, the criminal act” (supra, at 449). Defendant’s application for leave to appeal to this Court from the Appellate Term order was denied (65 NY2d 977).

Defendant was subsequently tried before a jury. The evidence at his trial established only that defendant’s brother Thomas had sold beer to two underage individuals on the premises of Manions, that defendant was a shareholder and officer of Manions’ corporate owner and that defendant had previously assumed some managerial responsibilities. There was no proof that defendant was present during, or had any other connection with, the illicit sales for which he was charged. Nonetheless, the jury was instructed that it could find defendant guilty of violating Alcoholic Beverage Control Law § 65 (1) if, in addition to determining that Thomas Byrne had made the sales in violation of the statute, the jury believed that defendant was a "responsible officer” of Tullow Taverns, Inc. Defendant was convicted and sentenced to pay a fine. Following his conviction, defendant appealed to the Appellate Term. The present appeal from the Appellate Term order affirming the judgment of conviction is here by leave of a Judge of this Court.

Since it is undisputed that defendant did not participate, encourage or know about the March 12, 1983 illicit sales, and, in fact, was not even present in Manions tavern when the sales occurred, he can have no criminal liability for those sales, unless Alcoholic Beverage Control Law § 65 (1) and § 130 (3) are construed to authorize the imposition of vicarious liability based solely upon defendant’s status as a shareholder and "responsible” officer of Manions corporate owner. Before considering the vicarious liability question, however, we note our rejection of the People’s contention that defendant should now be foreclosed from raising it because his prior application to appeal to this Court, which concerned the same issue, was denied. A denial of leave to appeal to the Court of Appeals by an individual Judge or Justice does not represent a determination on the merits barring further litigation of any "claims which could have been litigated” had the appeal been permitted (Bray v Cox, 38 NY2d 350, 355; cf., People v Corley, 67 NY2d 105, 109).

Turning to the merits of the vicarious liability question, we begin our analysis with the specific language of the controlling Alcoholic Beverage Control Law provisions. Both section 65 (1), which defines the prohibited conduct, and section 130 (3), which criminalizes violations of section 65 (1), speak in terms of acts committed by "a person.” Neither statute contains express language extending the legislatively imposed duty beyond the actor who actually engages in the prohibited conduct. Thus, if some form of vicarious liability is to be imposed, we must look elsewhere for a source of authority for doing so.

The People suggest that such a source of authority may be found in Alcoholic Beverage Control Law § 3 (22), which defines the term "person” to include corporations and other business entities, thereby authorizing the imposition of derivative liability, at least in one circumstance. However, the legislatively conferred authority to prosecute corporations for Alcoholic Beverage Control Law violations is quite specific and does not support the inference that the Legislature intended to effect a much broader rule of general vicarious liability for all criminal prosecutions under the Alcoholic Beverage Control Law, including those against natural persons.

Furthermore, any attempted analogy between the criminal liability of corporations and that of individuals falters because of the essential differences in the underlying theories supporting the imposition of derivative liability. It is true that when a corporation is prosecuted, the factual predicate for its liability is, invariably, the conduct of someone else, namely its agents or employees. However, since corporations, which are legal fictions, can operate only through their designated agents and employees (see, e.g., United States v Dotterweich, 320 US 277, 281), the acts of the latter are, in a sense, the acts of the corporation as well (see, e.g., People v Rochester Ry. & Light Co., 195 NY 102; cf., Penal Law § 20.20). Thus, when a corporation is held criminally liable because it is a "person” under Alcoholic Beverage Control Law § 3 (22), it is, in reality, being made to answer for its own acts. Such a theory of liability is a far cry from one involving true vicarious liability, in which, by virtue of the parties’ relationship, the conduct of one individual is artificially imputed to another who "has played no part in it [and] has done nothing whatever to aid or encourage it” (see, Prosser and Keeton, Torts § 69, at 499 [5th Lawyer’s ed]).

Equally unpersuasive is the People’s attempt to extrapolate a legislative intention to impose vicarious liability from the fact that the statutes at issue create a strict liability crime. A crime of strict liability is one that does not require proof of a culpable mental state (Penal Law § 15.10; see, e.g., People v Munoz, 9 NY2d 51). The doctrine of vicarious liability, in contrast, eliminates the need to prove that the accused personally committed the forbidden act. Since the concepts are distinct, there is no reason to infer that a Legislature willing to adopt the former would also endorse the latter (see, LaFave & Scott, Criminal Law § 3.9, at 253 [2d ed]). Indeed, in the absence of a specific expression to the contrary, a legislative intention to impose criminal liability where the actual actor did not harbor a guilty state of mind and the person to be held liable did not participate in the proscribed conduct cannot sensibly be assumed (cf., People v Leonard, 8 NY2d 60, supra [tavern proprietor who was present and mixed the alcoholic beverages that were sold to minors held criminally liable, although he did not personally serve the minors]; but see, People v Hawk, 156 Misc 870, affd 268 NY 678).

Finally, where the Legislature has not clearly directed otherwise, we should be most reluctant to embrace the doctrine of vicarious liability for use in the criminal sphere. The doctrine runs counter to the generally accepted premise in the criminal law that individuals " 'must * * * answer for their own acts, and stand or fall by their own behaviour’ ” (Sayre, Criminal Responsibility for the Acts of Another, 43 Harv L Rev 689, 701). Further, it is out of harmony with several provisions of the Penal Law, which are instructive on the Legislature’s over-all attitude toward individual responsibility.

Penal Law § 15.10, for example, provides that "[t]he minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act,” thereby establishing the accused’s personal misconduct as the sine qua non for most criminal prosecutions (emphasis supplied). Penal Law § 20.00, which expressly authorizes holding one individual criminally liable for the acts of another, requires, as a minimal predicate for liability, proof that the individual personally engaged in some voluntary act that was specifically connected to the actor’s misconduct, such as "soliciting,” "requesting” or "aiding.” Similarly, even Penal Law §§ 20.20 and 20.25, which detail the circumstances under which corporations may be held liable for the acts of their agents and vice versa, do not go so far as to suggest that a corporate principal may be held liable for corporate acts in which he did not participate and which he did not intend. Indeed, holding this defendant liable merely because of his status as a corporate officer and shareholder would run counter to Penal Law § 20.25, which limits individual liability for corporate criminal acts to cases where the individual defendant personally "perform[ed] or cause[d] to be performed” "conduct constituting an offense.”

Penal Law § 15.15 (2) is also instructive. That statute provides that "unless clearly indicating a legislative intent to impose strict liability,” statutes imposing criminal liability should be construed to require some culpable mental state. By parity of reasoning, where the Legislature has not clearly and specifically mandated otherwise, statutes defining criminally punishable offenses should, consistent with Penal Law § 15.10, be construed to require some personal participation by the accused in the proscribed act (see, Penal Law § 5.05 [2]).

In closing, we stress that our decision in this case does not represent a policy-based rejection of the use of vicarious liability theories in criminal prosecutions (compare, LaFave & Scott, Criminal Law § 32, with Laylin & Tuttle, Due Process and Punishment, 20 Mich L Rev 614, 627, 641; see also, n 4, supra). The fairness and wisdom of imposing such liability are matters within the purview of the Legislature’s judgment, provided, of course, that the constraints of due process are observed. We merely hold here that in the face of legislative silence on the point, a legislative intent to authorize prosecution for another’s criminal conduct will not be inferred.

Accordingly, the order of the Appellate Term should be reversed and the complaint dismissed.

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

Order reversed, etc.

      . In 1985, Alcoholic Beverage Control Law § 65 (l)’s age restriction was raised to 21 (L 1985, ch 274). At the time the events in this case took place, however, the legal age for drinking alcoholic beverages was 19.

      . In addition to reiterating his argument that he could not be held vicariously Ijable for his brother’s acts, defendant contended in the second appeal that collateral estoppel principles precluded the People from trying him because Thomas had recently been acquitted of the same charges. Relying primarily upon People v McGriff (130 AD2d 141), the Appellate Term rejected the latter argument. Inasmuch as we are directing the dismissal of the charges against defendant on other grounds, we have no occasion to consider the propriety of this aspect of the intermediate appellate court’s decision.

      . Alcoholic Beverage Control Law § 65 (1) provides: "No person shall sell, deliver or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages” to a minor (emphasis supplied). Section 130 (3) provides: "Any violation by any person * * * shall be a misdemeanor” (emphasis supplied).

      . While some courts and commentators have suggested that the rule of individual accountability should give way in the area of so-called "regulatory” offenses, where the punishments are usually limited to small fines and the social interest in the injury is "direct and evident” (Sayre, Criminal Responsibility for the Acts of Another, 43 Harv L Rev 689, 720; accord, Hershorn v People, 108 Colo 43, 113 P2d 680; LaFave & Scott, Criminal Law § 32), such arguments may be less persuasive in a case such as this, where the offense in question is not a petty offense, but rather is designated a "crime” punishable by up to one year in jail (see, Alcoholic Beverage Control Law § 130 [3]; Penal Law § 10.00 [4]; § 55.10 [2] [b]; § 70.15 [1]).

      . Inasmuch as we conclude that the present statutory scheme does not authorize the imposition of vicarious liability, we do not consider whether a scheme that does permit such liability would violate the Due Process Clause of either the State or Federal Constitution.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v Randy Velasco, Appellant.
    Argued February 8, 1991;
    decided April 4, 1991

      POINTS OF COUNSEL

      Robert P. App and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney of Bronx County (Susan L. Valle and Peter D. Coddington of counsel), for respondent.

      John J. Santucci, District Attorney of Queens County (Andrew Zwerling and Gary Fidel of counsel), amicus curiae.

   OPINION OF THE COURT

Per Curiam.

Defendant has been convicted of manslaughter in the first degree (Penal Law § 125.20 [1]), a charge arising from an altercation in which he stabbed Raymond Nelson with a "Ninja knife”. He seeks reversal of the judgment because (1) he was absent from material stages of the trial proceedings and, (2) the court failed to properly instruct the jury.

Defendant’s first claim concerns his absence from a precharge conference, a side-bar voir dire, and a conference in the robing room to discuss peremptory challenges and challenges for cause. He claims that as a result of these absences his statutory and constitutional rights to be present during material stages of the criminal proceeding were denied (CPL 260.20; US Const 6th, 14th Amends; NY Const, art I, § 6).

In People v Mullen (44 NY2d 1), we delineated the scope of a defendant’s statutory and constitutional rights to be present during court proceedings. We stated that under CPL 260.20, a defendant’s right to be present during the trial of an indictment included presence during the impaneling of the jury, the introduction of evidence, the summations of counsel, and the court’s charge to the jury (see, People v Mullen, 44 NY2d, at 4; Maurer v People, 43 NY 1, 3). We further noted that "[a]part from our statutory provision, due process requires the presence of a defendant at his trial 'to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.’ (Snyder v Massachusetts, 291 US 97, 108.) His presence is required only where his absence would have a substantial effect on his ability to defend. (Snyder v Massachusetts, 291 US, at pp 105-106, supra * * *.)” (44 NY2d, at 4-5.)

In this case, the precharge conference was conducted in the court’s robing room, attended by the attorneys for both sides, but without defendant. During the conference, the parties discussed a stipulation concerning the contents of a medical record, the scheduling of the rest of the trial and the court’s concluding instructions to the jury. The court also entertained and denied a motion to dismiss the murder charge and granted a motion to dismiss a weapons charge. The conference involved only questions of law or procedure and defendant’s presence was not required (see, People v Rodriguez, 76 NY2d 918; People v Ferguson, 67 NY2d 383; People ex rel. Lupo v Fay, 13 NY2d 253).

Defendant’s contention that he had a right to be present at the "side-bar voir dire” fails for similar reasons. Prior to the formal voir dire, the court directed a series of questions to prospective jurors, in the presence of defendant, designed to search out matters which might lead to disqualification, including physical impairments, family obligations, and work commitments. Any juror wishing to respond to the questions was directed to approach the bench where further discussion was had between the court and the juror in the presence of both counsel but outside the hearing of defendant and the remaining venire. Following the bench conferences, some prospective jurors were excused by the court and others returned to the jury box for voir dire.

Defendant maintains that he had a right to be present during these conferences. However, the determination that a prospective juror was disqualified before voir dire was a matter for the court and defendant had no statutory or constitutional right to personally participate in the discussions leading to the court’s ruling (cf., People v Ganett, 68 AD2d 81, affd 51 NY2d 991; CPL 270.15). He was present during the initial questioning of the jurors and represented by counsel during the discussions at the bench. Under the circumstances, defendant’s presence at the bench conference would have been "useless, or the benefit but a shadow.” (Snyder v Massachusetts, 291 US at, 106-107.)

Equally without merit is defendant’s claim that his right to be present during the impaneling of the jury was impaired by his absence from a conference in the robing room during which counsel advised the court of their peremptory challenges and challenges for cause. The voir dire was conducted in open court and the challenges were exercised and recorded in open court, after the conference. Defendant’s claim is limited to his absence from the robing room discussion in which the attorneys advanced the legal basis for their challenges for cause and identified their peremptory challenges, later formally effected in open court.

Defendant’s statutory and constitutional right to be present at the impaneling of the jury was not violated by this procedure inasmuch as he was present during the voir dire of the jurors, the exercise of the challenges in open court, and the removal of those jurors from the panel. He had an opportunity to consult with his attorney before the challenges were made. The in-chambers discussion was a mere preliminary advisement of the court of challenges later effectuated in open court in the presence of defendant and thus did not constitute a material part of the trial.

Defendant also contends the court erred in responding to requests from the jury. During deliberations, the jury requested several readbacks, including a readback of the attorneys’ summations. The court refused to read back the summations and defendant claims error because summations come within the literal language of CPL 310.30.

Under CPL 310.30, a jury may request at any time during its deliberation "instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury’s consideration of the case.” The jury can request a reading of not only evidentiary material, but also any material which is pertinent to its deliberation, including the summations, and the trial court must "give such requested information or instruction as [it] deems proper” (see, CPL 310.30; People v Lourido, 70 NY2d 428, 435; People v Malloy, 55 NY2d 296, 302). Whether the summations should have been read to the jury under the circumstances of this case was a matter within the trial court’s discretion. Defendant’s general objection to the court’s refusal did not preserve the argument, made for the first time on appeal, that the court did not exercise its discretion or, if it did so, exercised it improperly (see, People v Ford, 69 NY2d 775; People v Balls, 69 NY2d 641).

In sum, we find no error in the manner in which the proceedings were conducted or in the court’s handling of the jury’s inquiries.

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

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

Order affirmed.


author: Bellacosa, J.

text:
    In the Matter of Hull Corporation, Appellant, v Thomas F. Hartnett, as Commissioner of Labor of the State of New York, Respondent.
    Argued February 6, 1991;
    decided March 26, 1991

      POINTS OF COUNSEL

      Brian M. Cole for appellant.

      Robert Abrams, Attorney-General (Faye Kessin Lewis, O.

      Peter Sherwood, Peter H. Schiff, Jane Lauer Barker and M. Patricia Smith of counsel), for respondent.
   OPINION OF THE COURT

Bellacosa, J.

As a result of two 1986 determinations of willful violations of Labor Law § 220 issued by the Commissioner of Labor, the Hull Corporation has been debarred until August 1991 from bidding on or being awarded any public work contracts. Whether that debarment will continue through 1993 is the practical consequence stemming from two additional determinations by the Commissioner of Labor made in 1988. The legal issue on this appeal arises out of Hull’s article 78 proceeding challenging only the 1988 determinations of willfulness and the Commissioner’s postulate that contemporaneous and similar conduct on multiple public work contracts can be splintered into discrete determinations of willful failure to pay prevailing wages and supplements for debarment purposes (see, Labor Law § 220 [3]; § 220-b [3] [b]).

Concluding that the issue is ripe for judicial review because under Labor Law § 220-b (3) (b) debarment occurs by operation of law upon a determination of a second willful failure to comply with article 8 of the Labor Law, we hold that — for the debarment penalty purpose only — Hull’s contemporaneous and similar conduct at issue provides the basis for a single willful determination. Thus, we reverse.

Petitioner-appellant Hull Corporation entered into three public work contracts in 1984-1985. The first contract involved construction of an interchange along Route 790 in the Syracuse area (Syracuse contract). The second and third contracts involved highway construction work in the Utica area (Utica contracts). As a contractor, it was bound under Labor Law § 220 (3) and the contracts to pay the employees not less than the prevailing rate of wages and supplements in each employee’s trade or occupation in the locality where the project was located.

While Hull was performing these contracts, the Commissioner of Labor issued a redetermined wage schedule effective from July 1, 1985 to June 30, 1986. After Hull was notified that the new schedule was applicable to ongoing projects, it chose not to pay its employees the redetermined wages pending a challenge to the Commissioner’s authority to affect these three contracts. Hull established three private "escrow” accounts into which it deposited the respective wage differentials between the original and the redetermined schedules. The Commissioner’s redetermination power was ultimately upheld (Matter of General Bldg. Contrs. v Roberts, 118 AD2d 173 [1986], lv denied 68 NY2d 612), and Hull paid the "escrowed” money with interest to its employees.

Prior to the 1988 Utica contract determinations under review in this appeal, Hull was debarred for five years based on two 1986 determinations of willful violations, the second of which was based on the Syracuse contract (see, Matter of Hull-Hazard, Inc. v Roberts, 129 AD2d 348 [1987], affd 72 NY2d 900 [1988]; see, Matter of Hull-Hazard, Inc. v Roberts, 136 AD2d 872 [1988], mod 74 NY2d 710 [1989] [upheld Commissioner’s determination regarding Syracuse contract]). This debarment, set to expire in August of 1991, and its predicate 1986 determinations of willful violations are not under review here and Hull seeks no relief in that respect in this appeal.

However, in May 1988, the Commissioner issued two more orders and determinations finding Hull had willfully failed to pay the redetermined wage rate and supplements on its September 1984 and January 1985 Utica contracts. These contracts and administrative determinations are the essential subjects of this appeal. Hull’s petition challenges the multiple willful determinations based on its contemporaneous similar conduct only for debarment purposes, and does not challenge the Utica determinations themselves or the civil penalties or wage payments imposed thereunder.

Initially, we must address the Appellate Division conclusion that judicial review is premature because the Commissioner has not yet rendered a new, formal or extended debarment order based on the two Utica contract willful violations (156 AD2d 985). We disagree.

The debarment provision of the Labor Law provides that "[w]hen final determinations have been rendered against a contractor * * * in two instances within [a] consecutive six-year period determining that such contractor * * * has wilfully [sic] failed to pay the prevailing rate of wages or to provide supplements * * * such contractor * * * shall be ineligible to submit a bid on or be awarded any public work contract with the state * * * for a period of five years from the second final determination” (Labor Law § 220-b [3] [b] [emphasis added]). The statute uses the compulsory term "shall”, and while the Commissioner may issue a separate debarment document (see, Garden State Brickface & Stucco Co. v Roberts, 121 AD2d 597, lv denied 69 NY2d 601), the legal force of the penalty is self-executing by statutory command as of the date of the second final determination of willful violation. The debarment penalty automatically forecloses Hull from bidding on and being awarded public work contracts by operation of statutory prescription (see, Matter of Dadson Plumbing Corp. v Goldin, 104 AD2d 346, 347, mod 66 NY2d 713). Thus, the Commissioner’s formal order of debarment may be viewed as a ministerial implementation of the juridical event, like the striking of an attorney’s name from the Roll of Attorneys after automatic disbarment for a felony conviction (Judiciary Law § 90).

The conclusion that debarment is automatic potentially affects the length of Hull’s debarment. If the May 1988 Utica contract determinations of double willful violations are considered to be discrete from the August 1986 Syracuse contract determination for debarment purposes — as the Commissioner declared and as Hull now disputes — then Hull’s debarment would by statute be automatically extended until May 1993. Resolution of the disputed legal question will thus "have an immediate practical effect on the conduct of the parties” (New York Pub. Interest Research Group v Carey, 42 NY2d 527, 530), and the matter is therefore ripe for judicial review.

Turning to the pivotal issue on the merits, we must resolve whether Hull’s contemporaneous similar conduct in violating the article 8 Labor Law prevailing wage and supplement provisions in its performance of three contracts can be trifurcated into discrete determinations of willful violations under Labor Law § 220-b (3) (b) for debarment purposes.

The Commissioner’s two May 1988 orders and determinations concluded that Hull had willfully failed to pay its employees on the two Utica contracts the prevailing rate of wages and supplements to which they were entitled from August 1985 to March 1986. Previously, the Commissioner’s August 1986 order and determination had concluded, among other things, that Hull had willfully underpaid wages and supplements on the Syracuse contract during the period of August 1985 to July 1986. The Commissioner expressly rendered separate determinations for these three contracts, treating each as a separate willful violation for debarment purposes (Labor Law § 220-b [3] [b]). This compounding of the violation for the purpose of aggregating and inflicting the most severe administrative penalty — debarment from future bidding for five years — is not within the reach of the statute and our interpretations of it.

Labor Law § 220-b (3) (b) "clearly requires one final determination prior to the second final determination so as to establish knowing repetition as the predicate for a five-year suspension from bidding.” (Matter of Dadson Plumbing Corp. v Goldin, 66 NY2d, supra, at 715 [emphasis added].) In Dadson, where the contractor contemporaneously underpaid an employee on five separate ongoing contracts, we concluded that "knowing repetition” had not been established and there had been only a single final determination; thus, the contractor was not debarred (id. [emphasis added]).

In this case, Hull also acted contemporaneously with respect to all three contracts in relation to the same redetermined prevailing wage schedules. After the redetermined schedules were issued for the three contracts, Hull continued to pay wages under the prior schedule and established three "escrow” accounts. Hull abandoned its interim maneuver and paid the escrowed wages with interest to its employees on all three contracts after the Commissioner’s authority was upheld. Indeed, the Commissioner concedes on this appeal that Hull’s conduct regarding prevailing wages and supplements as to all three contracts was the same. To be sure, while the determinations in Dadson were issued simultaneously, the Syracuse and Utica determinations were issued at different times. However, the governing principle and rationale affecting the debarment sanction imposed for contemporaneous similar conduct are the same.

In the context of these facts involving contemporaneous similar conduct on multiple contracts violating article 8 of the Labor Law, we conclude that Dadson’s "knowing repetition” requirement should generally be deemed satisfied for debarment purposes only when the first determination precedes the conduct forming the basis for the second determination. Hull’s conduct relating to the two Utica contracts, under review here, occurred before the Commissioner determined Hull’s similar contemporaneous conduct violated the Syracuse contract. Thus, the Utica contracts cannot result in' two more willful determinations under Labor Law § 220-b (3) (b) because Hull could not and did not repeat the conduct after it had been determined by the Commissioner to be a violation. Hull’s conduct relating to the Utica contracts, involving only wages and supplements, cannot result in willful determinations separate and distinct from one another or from the August 1986 Syracuse contract determination in that respect for debarment purposes.

The separate timing of the Commissioner’s determinations cannot transform the similar conduct into "knowing repetition” of willful violations for debarment purposes. To hold otherwise would be to expand Labor Law § 220-b (3) (b) and allow the Department of Labor to separately and successively prosecute similar contemporaneous conduct merely to establish multiple determinations of willful violations to bring about automatic debarments. Dadson and the statute (Labor Law § 220-b [3] [b]) stand for the proposition that genuinely separate building blocks are needed to reach debarment; splitting a single block into pieces and piling them atop one another may not accomplish that feat.

We have emphasized that the debarment provisions are penal in nature (McKinney’s Cons Laws of NY, Book 1, Statutes § 273) and must be "strictly construed against the party seeking their enforcement and in favor of the person being proceeded against” (McKinney’s Cons Laws of NY, Book 1, Statutes § 271 [a]; see, Matter of Dadson Plumbing Corp. v Goldin, 66 NY2d, supra, at 715). Our interpretation of Labor Law § 220-b (3) (b) in Dadson and here that "knowing repetition” requires something repetitive and sequential is reasonable; on the other hand, administrative ratcheting of the type evident here would not be rational and, under the circumstances, it would be arbitrary and capricious.

The remaining contentions have been examined but do not affect the precise issue and result in this case.

Accordingly, the judgment of the Appellate Division should be reversed, with costs, the petition granted and the matter remitted to Supreme Court, Onondaga County, with directions to remand to the Commissioner for new determinations in accordance with this opinion.

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

Judgment reversed, with costs, petition granted, and matter remitted to Supreme Court, Onondaga County, with directions to remand to the Commissioner for new determinations in accordance with the opinion herein.