author: Smith, J.

text:
    [665 NE2d 153, 642 NYS2d 583]
    Mark Foster et al., Appellants, v Richard H. Churchill, Jr., et al., Respondents, et al., Defendants.
    Argued February 6, 1996;
    decided March 26, 1996

      POINTS OF COUNSEL

      Miller & Wrubel, P. C., New York City (Joel M. Miller, Charles R. Jacob III and John T. Corcoran of counsel), for appellants.
    I. As to tortious interference, the Court below’s order is erroneous and contrary to public policy. (Israel v Wood Dolson Co., 1 NY2d 116; Mautner Glick Corp. v Edward Lee Cave, 157 AD2d 594; Murtha v Yonkers Child Care Assn., 45 NY2d 913; Felsen v Sol Cafe Mfg. Corp., 24 NY2d 682; Bardere v Zafir,
      102 AD2d 422; Remy Beverages v Myer, 269 App Div 1013; Buckley v 112 Cent. Park S., 285 App Div 331; Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183; Slavenburg Soelling Corp. v Assomull & Co., 29 Misc 2d 232; Reiner v North Am. Newspaper Alliance, 259 NY 250.) II. As to defamation, the Court below’s order conflicts with prior decisions of this Court. (Stukuls v State of New York, 42 NY2d 272; Stillman v Ford, 22 NY2d 48; King v Tanner, 142 Misc 2d 1004; Liberman v Gelstein, 80 NY2d 429; Barrett v Combined Life Ins. Co., 88 AD2d 630; McCabe v Easter, 128 AD2d 257; McNally v Yarnall, 764 F Supp 838; Loughry v Lincoln First Bank, 67 NY2d 369.)

      Curtis, Mallet-Prevost, Colt & Mosle, New York City (T. Barry Kingham, Michelle A. Rice and Laleh Ispahani of counsel), for respondents.
    I. The Court below properly affirmed the dismissal of appellants’ defamation claims. (Wright v Johnson, 184 AD2d 234; Glantz v Cook United, 499 F Supp 710; Stillman v Ford, 22 NY2d 48; Stukuls v State of New York, 42 NY2d 272; Barrett v Combined Life Ins. Co., 88 AD2d 630; Sweeney v Prisoners’ Legal Servs., 84 NY2d 786; Loughry v Lincoln First Bank, 67 NY2d 369; Hoeppner v Dunkirk Print. Co., 254 NY 95.) II. The Court below properly affirmed the dismissal of appellants’ tortious interference claims. (Felsen v Sol Cafe Mfg. Corp., 24 NY2d 682; American Protein Corp. v AB Volvo, 844 F2d 56, 488 US 852; Koret, Inc. v Christian Dior, 161 AD2d 156, 76 NY2d 714; Inselman & Co. v FNB Fin. Co., 51 AD2d 924, 41 NY2d 1078; Lloyd I. Isler, P. C. v Sutter, 160 AD2d 609; Guard-Life Corp. v Parker Hardward Mfg., 50 NY2d 183; Nassau Diagnostic Imaging & Radiation Oncology Assocs. v Winthrop Univ. Hosp., 197 AD2d 563, 83 NY2d 756; Murtha v Yonkers Child Care Assn., 45 NY2d 913; Matter of Brookside Mills [Raybrook Textile Corp.], 276 App Div 357.)
   OPINION OF THE COURT

Smith, J.

The issues presented by this appeal are (1) whether the Appellate Division erred in concluding that appellants had not established a claim of tortious interference and (2) whether the Appellate Division erred in affirming the dismissal of appellants’ defamation claim.

Appellants Mark Foster and Don Franco are the founders and former chief executive officers of defendant Microband Companies Incorporated (Microband). Microband, incorporated in Delaware, with offices in New York, Washington, D.C., and Detroit, was engaged in the wireless multichannel cable television business. Respondents, collectively referred to as the TA defendants, are a group of venture capital firms and their principals, Richard H. Churchill, Jr., and David D. Croll. Respondents Churchill and Croll were also directors of Micro-band. Though appellants founded Microband, at some point appellants sold Microband and in 1985 sought to repurchase the company. Respondents provided substantial financing for appellants’ repurchase of Microband, resulting in respondents’ owning a 75% equity interest in the company and appellants’ together owning the remaining 25%.

In 1987, Microband was refinanced with a loan of approximately $25 million from defendants New York Life Insurance Company and New York Life Insurance and Annuity Corporation (the New York Life defendants). This loan resulted in the New York Life defendants obtaining nearly 13% of Microband’s outstanding stock. Microband was refinanced again in 1989, receiving funds from both the New York Life defendants and respondents TA defendants. At the time of the 1989 refinancing, appellants amended their employment agreements with Microband, extending their employment to 1992 and providing liberal severance packages should Microband terminate appellants prior to 1992 for reasons other than their death, disability, breach of the employment agreement or for cause. Termination for cause, however, was authorized and would result in appellants receiving no further payments (salary, bonuses or severance) under their employment contracts.

Despite the injection of substantial cash, Microband’s rapid expansion and need to service existing debt necessitated additional capital. In January 1989, the New York Life defendants conditioned an additional $10 million in financing on Microband achieving 95,000 subscribers by August 1989. Microband was unable to meet this target and further was unable to independently raise the additionally needed funds.

In the fall of 1989, Microband effectively ran out of cash. At a meeting of Microband’s board of directors, the decision was made to hire outside consultants to review the company’s business affairs. The consultants concluded that Microband was being mismanaged and was in serious financial trouble. The consultants’ report prompted Microband’s board of directors to develop a strategy to deal with the severe economic crisis facing Microband. A meeting of the board of directors of Micro-band was scheduled for November 10, 1989. Prior to the meeting, respondents Churchill and Croll circulated a "Schedule of Actions Constituting Cause” enumerating six grounds for terminating appellants "for cause.”

In their schedule, respondents Churchill and Croll alleged that (1) appellants prevented the company from securing critical financing during the spring and summer of 1989 by failing to devote the necessary time and attention to the company’s operation because appellants were preoccupied with beneficially amending their employment contracts; (2) although appellants knew that Microband was in serious financial trouble, they failed to disclose the extent of the company’s dilemma to Microband’s financial backers; (3) appellants’ operations practices caused nonsubscribers to remain connected and in effect receive cable services at Microband’s expense; (4) appellants failed to use their best efforts on the company’s behalf; (5) appellants caused the company to incur legal fees which benefited appellants personally, and (6) appellants were grossly negligent and/or willful in their mismanagement of Microband. Appellants were notified, on November 10, 1989, of their termination "for cause” from Microband.

Appellants commenced this action against respondents TA defendants asserting, inter alla, that respondents (i) prevented appellants from carrying out their proper functions as cochief executive officers of Microband; (ii) caused Microband to breach its employment agreements with appellants; (iii) defamed appellants to members of Microband’s board of directors, resulting in the wrongful termination of appellants’ employment; and (iv) breached their fiduciary duties. Appellants asserted a claim for breach of contract against Microband. Microband subsequently filed for bankruptcy protection and proceedings against it were stayed. Appellants also asserted claims against the New York Life defendants for breach of contract, and aiding in breach of fiduciary duty. The New York Life defendants settled their claims with appellants during the trial and are not involved in this appeal.

Although initially noting that Microband could have fired appellants for no reason, Supreme Court, in a nonjury trial, held that by terminating appellants "for cause” and failing to pay them the required severance, Microband had breached its contracts with appellants. After the trial, the court dismissed all the claims against respondents TA defendants, despite finding that said respondents intentionally caused Microband to breach its contracts with appellants. Prior to dismissing the claims against the TA defendants, the court considered two defenses raised by respondents TA defendants, the business judgment rule and economic justification. Supreme Court concluded that the business judgment rule provided no protection to respondents because they failed to treat appellants with the utmost good faith required of them. As to the claim of tortious interference, the court concluded that respondents were protected by the defense of economic justification, finding that the predominate purpose of respondents’ actions was the economic interest of Microband.

Finally, the court concluded that while many of the statements contained in the "Schedule of Actions Constituting Cause” were defamatory per se, such statements were "presumptively privileged because they concerned] the proper management of Microband and were published and discussed among persons responsible for its health.” The court examined each of the schedule’s statements and determined that none of the statements constituted grounds "for cause” within the appellants’ contracts. Moreover, the court found most statements were false, that the schedule was ambiguously worded, and while Microband’s problems were real, such problems went to "competence,” not to "cause.”

The Appellate Division affirmed. Citing Felsen v Sol Cafe Mfg. Corp. (24 NY2d 682), it concluded that the respondents had established the defense of economic justification and had acted with no personal animus. In addition, the Court concluded that respondents had established the defense of business judgment since the case was governed by Delaware law in which the presumption existed that a director’s decision was made in good faith. This Court granted leave to appeal.

Appellants appeal to this Court contending (1) that the Appellate Division erred by requiring them to establish a new standard of "personal animus” in order to defeat respondents’ defense of economic justification to a claim of tortious interference and (2) that the Appellate Division further erred by requiring appellants to prove "personal spite or ill will” to overcome the defense of qualified privilege to a claim of defamation.

A claim of tortious interference requires proof of (1) the existence of a valid contract between plaintiff and a third party; (2) the defendant’s knowledge of that contract; (3) the defendant’s intentional procuring of the breach, and (4) damages (Israel v Wood Dolson Co., 1 NY2d 116, 120). These elements were established. We conclude, however, that the defense of economic justification was established by the respondents. Contrary to the argument of the appellants, the Appellate Division did not require appellants to establish personal animus to defeat the defense of economic justification. Thus the Appellate Division did not establish a new standard for claims of tortious interference but properly relied on this Court’s holding in Felsen v Sol Cafe Mfg. Corp. (24 NY2d 682, supra), that economic interest is a defense to an action for tortious interference with a contract unless there is a showing of malice or illegality.

In Felsen v Sol Cafe Mfg. Corp. (supra), appellant Felsen was the treasurer, comptroller and general administrator of Sol Cafe, an instant coffee manufacturing plant. After Sol Cafe was ¡bought out by Chock Full O’Nuts, Felsen was terminated. Felsen sued Sol Cafe and its sole shareholder, Chock Full O’Nuts, for breach of his employment agreement and malicious inducement of that breach, respectively. Although the jury returned a verdict in favor of Felsen against both defendants, this Court held that the claim against Chock Full O’Nuts should have been dismissed because Chock Full O’Nuts, as the sole stockholder of Sol Cafe, had an economic interest to protect in the affairs of Sol Cafe. Such interest, it was noted, justified Chock Full O’Nuts’ interference with Felsen’s employment agreement with Sol Cafe, unless Chock Full O’Nuts was motivated by malice or employed illegal means to safeguard its interest.

We concluded in Felsen that " '[procuring the breach of a contract in the exercise of equal or superior right is acting with just cause or excuse and is justification for what would otherwise be an actionable wrong’ ” (24 NY2d, at 687; see also, Murtha v Yonkers Child Care Assn., 45 NY2d 913, 915 [" 'a corporate officer who is charged with inducing the breach of a contract between the corporation and a third party is immune from liability if it appears that he is acting in good faith as an officer * * * (and did not commit) independent torts or predatory acts directed at another’ ”]).

The imposition of liability in spite of a defense of economic interest requires a showing of either malice on the one hand, or fraudulent or illegal means on the other (Felsen v Sol Cafe Mfg. Corp., 24 NY2d, at 687). To defeat a claim of tortious interference under Felsen, respondents need to establish that their actions were taken to protect an economic interest. While the lower court found that respondents did not show good faith in their actions, and may have acted in bad faith, there was no evidence that independent torts were committed, nor were respondents’ actions advanced to serve some personal interest. Respondents were clearly acting in the economic interest of Microband, which was on the brink of insolvency. To the extent that respondents acted to preserve the financial health of an ailing Microband, their actions were economically justified.

The trial court’s finding that respondents acted without good faith can be attributed to their motives for terminating appellants, namely to save Microband from paying out money it could not afford. The court did not find that respondents acted outside the scope of their duties as officers of Microband and, in that respect, they did not commit independent torts. While the absence of good faith motivated respondents’ actions, such actions were justified by economic considerations respecting Microband.

Turning to appellants’ claim of defamation, that term is defined as the making of a false statement which tends to " 'expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society’ ” (Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, 379, citing Sydney v Macfadden Newspaper Publ. Corp., 242 NY 208, 211-212). Even though a statement is defamatory, there exists a qualified privilege where the communication is made to persons who have some common interest in the subject matter (Liberman v Gelstein, 80 NY2d 429, 437). The qualified privilege has been asserted in communications between members of a board of governors of a tenants’ association (Liberman v Gelstein, supra), between a college administrator and members of a tenure committee of a faculty (Stukuls v State of New York, 42 NY2d 272) and between physicians belonging to a health insurance plan (Shapiro v Health Ins. Plan, 7 NY2d 56, 60-61). "A privileged communication is one which, but for the occasion on which it is uttered, would be defamatory and actionable” (Park Knoll Assocs. v Schmidt, 59 NY2d 205, 208). We find the statements made by respondents Churchill and Croll in the "Schedule of Actions Constituting Cause,” although per se defamatory, were protected under the conditional or qualified privilege.

The defense of qualified privilege will be defeated by demonstrating a defendant spoke with malice ("The shield provided by a qualified privilege may be dissolved if plaintiff can demonstrate that defendant spoke with 'malice' " [Liberman, supra, at 437; see also, Park Knoll Assocs. v Schmidt, 59 NY2d, at 209, supra]). Moreover, the conditional or qualified privilege is inapplicable where the motivation for making such statements was spite or ill will (common-law malice) or where the " 'statements [were] made with [a] high degree of awareness of their probable falsity' " (constitutional malice) (Liberman, 80 NY2d, at 438).

Appellants have failed to establish that respondents acted out of personal spite or ill will, with reckless disregard for the statements’ truth or falsity, or with a high degree of belief that their statements were probably false. In the "Schedule of Actions Constituting Cause”, respondents essentially claimed, based on the critical financial condition of Microband, that appellants mismanaged Microband and that such mismanagement resulted in Microband not being profitable. While respondents seemingly made these statements without actual knowledge of their truthfulness, respondents apparently presumed that the statements were not wholly false. "[T]here is a critical difference between not knowing whether something is true and being highly aware that it is probably false” (Liberman v Gelstein, 80 NY2d 429, 438, supra). Because respondents, as members of Microband’s board of directors, shared a common interest, protecting and preserving the financial health and security of Microband, their otherwise actionable defamatory statements were not actionable because they were conditionally privileged. As we indicated in Liberman, "The rationale for applying the privilege in these circumstances is that so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded” (Liberman, at 437).

Moreover, a finding that respondents acted without good faith is not inconsistent with our determination that they similarly acted without malice. The trial court made a factual finding that respondents’ statements were not made with an intent to harm appellants or with a reckless disregard for their truth, nor did appellants establish that such statements were made solely because respondents disliked appellants. A finding that respondents acted without good faith, although their actions were economically justified and not improper, is not inconsistent with a finding of the absence of malice, common law or constitutional.

Finally, in view of our disposition here, we find it unnecessary to consider the Delaware business judgment rule.

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

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.

Order affirmed, with costs.

       Appellants served as cochief executive officers of Microband and its predecessors from 1971 until November 10, 1989.


source: Caselaw Access Project

license: Public Domain

text:
    [665 NE2d 158, 642 NYS2d 588]
    In the Matter of DeFoe Corp. and American Bridge Company, a Joint Venture, Appellant, v New York City Department of Transportation et al., Respondents.
    Argued February 14,1996;
    decided March 28, 1996

      POINTS OF COUNSEL

      Vincent A. Delorio, Purchase, Michael J. Amoruso and Joel Martin Aurnou, White Plains, for appellant.
    I. The courts below erred in not finding that the New York City Comptroller and Mayor acted in an arbitrary and capricious manner in denying registration of the contract to the qualified low bidder on a record that does not support a determination of nonresponsibility. (Matter of Pell v Board of Educ., 34 NY2d 222; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Matter of Italian Sons & Daughters v Common Council, 89 AD2d 822; Barrett v Lubin, 188 AD2d 40; Matter of Adelman v Bahou, 85 AD2d 862; Matter of Sled Hill Cafe v Hostetter, 22 NY2d 607; Matter of Montauk Improvement v Proccacino, 41 NY2d 913; Abco Bus Co. v Macchiarola, 52 NY2d 938; Matter of Konski Engrs. v Levitt, 69 AD2d 940, 49 NY2d 850.) II. The courts below erred in not finding that the New York City Comptroller and the Mayor acted in an arbitrary and capricious manner where the record reveals that the instant contract registration denial for alleged nonresponsibility was based upon the identical history utilized by the New York City Department of Transportation and the same Comptroller to award and register three prior and ongoing City contracts to DeFoe Corp. as a responsible and qualified bidder. (Matter of Lafayette Stor. & Moving Corp. v Hartnett, 77 NY2d 823; Matter of Martin [Troy Publ. Co. — Roberts], 70 NY2d 679; Matter of Casey [Larkfield Lottery], 140 AD2d 925; Matter of Health Related Nutrition Servs. [Roberts], 123 AD2d 466; Cittadino v Bellacosa, 136 Misc 2d 999.) III. The courts below erred in not finding that the determinations of the Comptroller and Mayor were arbitrary and capricious where the record evidence fails to support, much less justify, as required by New York City Charter § 328, that plaintiff-appellant was actively or presently engaged in criminal activity. (Matter of Dentom Transp. v New York City Human Resources Admin., 155 Misc 2d 31; Matter of DeMatteis Constr. Corp. v Dinkins, 190 AD2d 621, 81 NY2d 711; Matter of Sled Hill Cafe v Hostetter, 22 NY2d 607.) IV. The courts below erred in the interpretation of New York City Charter standards required to be applied by the City in registering a publicly bid contract awarded to the qualified low bidder where the courts did not find that the City Comptroller’s objections to the registration of the contract were untimely as required by New York City Charter § 328, and the court determined that plaintiff-appellant waived the statutory time period which required the Comptroller to register the contract as mandated by New York City Charter § 328.

      Paul A. Crotty, Corporation Counsel of New York City (Kathleen Alberton, Lawrence S. Kahn and Larry A. Sonnenshein of counsel), for respondents.
    I. Both the Comptroller’s objections to registration of petitioner’s contract and the Mayor’s determination not to require registration of the contract had a rational basis supported by record evidence and were neither arbitrary nor capricious or contrary to law. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269; Matter of Ista Mgt. v State Div. of Hous. & Community Renewal, 161 AD2d 424; Matter of C. K. Rehner, Inc. [City of New York], 106 AD2d 268; Matter of Clancy-Cullen Stor. Co. v Board of Elections, 98 AD2d 635; Abco Bus Co. v Macchiarola, 75 NY2d 831, 52 NY2d 938, 454 US 822; Matter of Dentom Transp. v New York City Human Resources Admin., 155 Misc 2d 31; Matter of LaCorte Elec. Constr. & Maintenance v County of Rensselaer, 195 AD2d 923, 82 NY2d 660; Kings Bay Buses v Aiello, 100 Misc 2d 1; Matter of Dairymen’s League Coop. Assn. v Perrini, 54 Misc 2d 400.) II. The Comptroller’s objection to the registration of petitioner’s contract is timely since it was made within 30 days of the amended filing of the contract. Nevertheless, in the instant case, petitioner waived any objection to the timeliness of the Comptroller’s objection. (Council of City of N. Y. v Giuliani, 163 Misc 2d 681.)
   OPINION OF THE COURT

Smith, J.

In this CPLR article 78 proceeding challenging a determination to deny registration of a contract with a municipal agency, the issues are (1) whether the New York City Comptroller’s objection to the registration of the subject contract was timely and (2) whether the refusal of the Comptroller and the Mayor to register the contract was arbitrary and capricious.

On December 1, 1992, after public solicitation of bids, appellant DeFoe Corporation and American Bridge Company, a joint venture (Joint Venture) was awarded New York City Contract No. HBX644 (the contract), for repairs to the Madison Avenue Bridge based on its bid price of $34,093,799. On or about March 24,1993, respondent New York City Department of Transportation (NYCDOT) submitted the contract to the New York City Comptroller (Comptroller) for registration. NYCDOT withdrew the contract on April 20, 1993, prior to registration, indicating a need to reconsider "the appropriateness of pursuing registration of the contract” in light of new information received pertaining to DeFoe Corp. (DeFoe). The Comptroller responded to NYCDOT’s withdrawal of the contract in an 11-page letter, dated April 26, 1993, from Elizabeth Lang, Special Counsel— Investigations to Steven Pacheco, Director, Contract Management, Bureau of Bridges, NYCDOT. The letter cited information, relating specifically to DeFoe and its principals, that NYCDOT should thoroughly consider "in determining the responsibility of the DeFoe/ American Bridge Company joint venture”. The Comptroller’s office followed up the first letter to NYCDOT with two additional letters (April 29, 1993 and May 7,1993) between Lang and Pacheco, each providing more information on DeFoe for NYCDOT to consider while making its determination.

After its withdrawal of the contract from the Comptroller, NYCDOT entered into negotiations with appellant to address concerns and objections and remove potential barriers to registration respecting appellant’s responsibility status. A "Responsibility Certification,” dated November 19, 1993, resulted from these discussions, by which DeFoe agreed to limit the involvement of five persons associated with DeFoe, four of whom who had previously been convicted of criminal tax violations involving DeFoe.

NYCDOT resubmitted the contract to the Comptroller on December 1, 1993. The Comptroller objected to the registration of the contract and notified the Mayor of her objection in a letter dated December 30, 1993. Specifically, the Comptroller objected that two of DeFoe’s principals who had previously been convicted of fraud might still play an integral part in DeFoe’s operations. Additionally, the Comptroller objected to appellant’s failure to disclose prior statutory and OSHA violations on its VENDEX Business Entity Questionnaire. Moreover, the Comptroller expressed concern that DeFoe had an outstanding Federal civil tax lien, in excess of $5 million and possibly as much as $11 million, which DeFoe was contesting. With respect to the Federal tax liability, DeFoe indicated that a portion of the contested liability related to illegal payments made to minority construction worker groups seeking to extort money. DeFoe, however, declined to identify any of the recipients of such payments or provide any further information regarding the payments. Based on the Comptroller’s objection, in a letter dated March 25, 1994, the Mayor refused to require registration of the contract.

Joint Venture commenced this article 78 proceeding by order to show cause, dated April 4, 1994, seeking an order (1) vacating the New York City Mayor’s decision denying registration of Joint Venture’s publicly bid contract as arbitrary and capricious and (2) declaring that the City Comptroller’s objection to the registration of the contract was untimely.

Supreme Court denied appellant’s petition and dismissed the proceeding, finding that the Comptroller’s objection was timely and rational. The court stated that under section 328 of the New York City Charter and related statutes, the contract registration procedure may not be circumvented by allowing an agency to withdraw a contract before registration. After rejecting appellant’s argument that the Comptroller’s objection was untimely because it was not filed within 30 days of NYCDOT’s initial submission, Supreme Court concluded that appellant waived any objection to NYCDOT’s removal of the instant contract by working with NYCDOT to eliminate any hurdles that might impede the contract’s registration and the subsequent resubmission of the contract to the Comptroller for registration. Further, citing Matter of Pell v Board of Educ. (34 NY2d 222, 231), the court found the Mayor’s denial of registration rationally based on the Comptroller’s timely and sound objection. The court found appellant’s declination to provide the identity of the parties involved in the extortion scheme a sufficient basis for objection under section 328 of the New York City Charter.

The Appellate Division unanimously affirmed for the reasons stated by the Supreme Court. This Court granted leave to appeal.

Appellant maintains that (1) the Comptroller’s objection to registration upon which the Mayor’s determination not to require registration was based was untimely filed and (2) the Mayor’s decision to deny registration of the contract was arbitrary and capricious, particularly in light of the approval of three other contracts for repairs to bridges in 1992.

This Court’s review of this article 78 proceeding is limited, inter alla, to "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (CPLR 7803 [3]; Matter of Pell v Board of Educ., 34 NY2d 222, supra). Because we find that the Comptroller and the Mayor performed a lawful duty and there was no showing that they acted in an arbitrary or capricious manner, we affirm the order of the Appellate Division.

Chapter 13 of the New York City Charter establishes the rules for procurement of New York City contracts. Section 328 provides for the registration of City contracts by the Comptroller and authorizes the Comptroller to object to the registration of a contract within 30 days of the date of filing of such contract with the Comptroller’s office (NY City Charter § 328 [c]). If the Comptroller has not objected within 30 days, the contract is deemed registered (NY City Charter § 328 [a], [c]). Although a contract has been awarded by a municipal agency, such contract is not effective until it has been registered (NY City Charter § 328 [a]; see also, Procurement Policy Board Rules, 9 RCNY 2-08 [c] [3]; 5-07 [b]).

Appellant maintains that the 30-day period within which the Comptroller had to object to the registration of appellant’s contract began on March 24, 1993, when NYCDOT initially submitted the contract for registration. Although NYCDOT withdrew the contract prior to the expiration of the 30 days, appellant maintains that the 30-day period was tolled when the contract was withdrawn and recommenced once NYCDOT resubmitted the contract in December 1993. To do otherwise, appellant maintains, would circumvent the statutory time limitations. This argument is rejected.

Appellant’s contract was withdrawn at NYCDOT’s instigation, before the expiration of the Comptroller’s statutory grant of time to object. Withdrawal and resubmission by the procuring agency of a contract that has previously been awarded begins anew the statutory time within which the Comptroller has to object to registration. As in the instant case, a resubmitted contract may include additional information not previously before the Comptroller in the initial submission. In addition, appellant waived any objection to the timeliness of the Comptroller’s decision by working with NYCDOT, after the contract was withdrawn, to remove potential barriers to registration.

Appellant’s further contention that the Comptroller and the Mayor acted in an arbitrary and capricious manner in denying registration of the contract is similarly rejected. The Mayor’s determination not to require registration of the contract was rational and based on the Comptroller’s sound objection to registration.

As the independently elected official responsible for insuring agency compliance with the rules and polices for the procurement of City contracts, the Comptroller appropriately reviewed information supplied by appellant in support of its contract bid. Specifically, the Comptroller reviewed information contained in several required disclosure forms determining that appellant "fail[ed] to disclose material facts called for by [the forms]”. The Comptroller pointed out appellant’s failure to disclose the names of all of its corporate officers, particularly Jay M. Haft, Esq. Allegedly a long-time associate of Dario Cioti, Haft is a director of DeFoe and also the sole trustee of a Dario Cioti Blind Trust which holds 100% of the outstanding shares of DeFoe owned by Cioti. In a letter dated April 29, 1993, from Elizabeth Lang to Steven Pacheco, the Comptroller’s office expressed concern regarding Mr. Haft’s relationship with Dario Cioti because as "sole trustee, Mr. Haft was responsible for electing the directors of the company and, as a result, in a very real sense, DeFoe’s management appeared to be subject to the control of Mr. Cioti’s long-term associate Mr. Haft”. In another letter between these same parties, dated May 7, 1993, the Comptroller also cited appellant’s failure to disclose OSHA and other statutory violations.

The Comptroller further questioned the ownership of DeFoe and the record of business integrity of those controlling DeFoe. As a basis for this inquiry, the Comptroller, in a letter between Lang and Pacheco, dated April 26, 1993, noted that on its VENDEX Business Entity Questionnaire, DeFoe indicated that four of its principals (Dario Cioti, Louis Bonomini, Hugo Cantamessa, and John Amicucci) had pleaded guilty in 1988 and 1990 to personal income tax evasion. These crimes, as a sentencing memorandum submitted by the Government in the case against Dario Cioti and his wife Marie Cioti revealed, involved an elaborate tax evasion scheme whereby fraudulent receipts and invoices were used to divert funds from DeFoe to sham corporations and back to DeFoe’s principals and members of their families. These funds, although reported by DeFoe as business expenses, were never reported by the recipients as income. All four persons apparently maintain contact with DeFoe and its business operations.

Additionally, the Comptroller noted DeFoe’s admission of illegal extortion payments, in the 1980’s, to minority construction worker groups to insure labor peace. More importantly, the Comptroller objected to DeFoe’s failure to provide adequate information concerning these admitted payoffs or the parties involved therein, although DeFoe provided assurances that no such payments had been made since 1986. In connection with its contested Federal tax liability, appellant maintains that portions of that liability were write-offs of these illegal payments.

General Municipal Law § 103 requires that all contracts for public work involving an expenditure of more than $20,000 shall be awarded to the lowest responsible bidder (General Municipal Law § 103 [1]). The Procurement Policy Board Rules define a responsible bidder as "one which has the capability in all respects to perform fully the contract requirements and the business integrity to justify the award of public tax dollars” (9 RCNY 5-02 [b] [l]). The Comptroller may object to the registration of a contract within 30 days of the filing of such contract with the Comptroller (NY City Charter § 328 [c]). Further, chapter 5 of the New York City Charter authorizes the Comptroller to "audit and investigate all matters relating to or affecting the finances of the city, including without limitation the performance of contracts and the receipt and expenditure of city funds” (NY City Charter § 93 [b]; see also, 9 RCNY 2-08 [a]).

An agency has an obligation to consider the responsibility of a bidder, including its skill, judgment and integrity, and may, on the basis of the prior criminal record of some of its principals, rationally reject that bidder (Abco Bus Co. v Macchiarola, 52 NY2d 938, revg on basis of dissenting opn 75 AD2d 831). In Abco (supra) the Board of Education of the City of New York denied award of a City contract to Abco Bus Company because the Board determined that, although the lowest bidder, Abco was not the lowest responsible bidder. After submitting the lowest of all publicly solicited bids, Abco was initially awarded a contract to transport handicapped school children, a contract it had been awarded in the past. The Board required a background check of the principals of Abco, which disclosed that two of Abco’s principals, who collectively owned 75% of Abco, had prior criminal records. The Board notified Abco of the denial of the award of the contract and Abco sued. Supreme Court awarded Abco the contract on the condition that one of its principals divest himself of his interest in the corporation.

The Appellate Division, with one Justice dissenting, affirmed, holding that the actions of the Board, in denying Abco the contract, were arbitrary and capricious. Justice Hopkins dissented and would have reversed, finding that the Board was entitled to take into consideration the criminal history of Ab-co’s principals. This Court reversed on the basis of the Appellate Division dissent (see also, Matter of LaCorte Elec. Constr. & Maintenance v County of Rensselaer, 195 AD2d 923, lv denied 82 NY2d 660 ["a bidder’s honesty, integrity, good faith and fair dealing are valid considerations regarding whether a lowest bidder is a responsible bidder, and a criminal investigation or indictment can provide a rational basis for finding that such bidder is not responsible”]).

In Abco (supra) the Court used a prior lack of integrity to make a finding of present lack of integrity under the responsible bidder standard there applicable. While the Comptroller is not authorized to make a responsibility determination under the procurement rules, here the Comptroller, pursuant to the Charter’s provisions, objected to the registration of DeFoe’s contracts based on a finding of past corrupt activity which was continuing to the present. The Mayor then refused to approve the registration of the contracts.

Under New York City Charter § 328, the Comptroller had the duty and authority to review this contract and object to it. "The comptroller may * * * object in writing to the registration of the contract, if* * * there is sufficient reason to believe that there is possible corruption in the letting of the contract or that the proposed contractor is involved in corrupt activity” (NY City Charter § 328 [c]). Based on the information before her, the Comptroller objected to the registration of appellant’s contract, determining that appellant’s participation in corrupt activity did not "justify the award of public tax dollars.” The Comptroller communicated such objection to the Mayor and the Mayor declined to require registration of the contract. The Comptroller performed a lawful duty and acted within her authority and responsibility. Neither the Comptroller nor the Mayor acted in an arbitrary or capricious manner and both determinations are supported by the record.

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

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.

Order affirmed, with costs.

      . DeFoe Corporation is incorporated under the laws of the State of New York with its principal office in Mount Vernon, New York. American Bridge Company is incorporated under the laws of the State of Delaware with its principal office in Pittsburgh, Pennsylvania.

      . The Madison Avenue Bridge connects New York County (Manhattan) and Bronx County.

      . The Responsibility Certification was signed by Peter Oppizzi, president and director, Charles Androsiglio, vice-president and director, and by John Amicucci, Jay Haft, Philip Alvarez, Louis Bonomini and Hugo Cantamessa.

      . DeFoe agreed to bar Dario Cioti (former president and director who pleaded guilty in 1988 to personal income tax evasion) from any involvement in decisions on DeFoe’s bidding or bid prices or respecting DeFoe’s construction projects, business dealings with its customers, or daily operations. DeFoe agreed that Louis Bonomini (former vice- president, who pleaded guilty in 1990 to personal income tax evasion), Hugo Cantamessa (former vice-president who pleaded guilty in 1990 to personal income tax evasion) and Philip Alvarez, former vice-president of. DeFoe, would refrain from any involvement in decisions on bidding or bid prices by DeFoe and would not assume new positions as directors or executive officers of DeFoe. DeFoe further agreed that John Amicucci (current vice-president who pleaded guilty in 1990 to personal income tax evasion) would refrain from any involvement in DeFoe business involving the City of New York during the term of the certification.

      . A VENDEX questionnaire contains background information about a business entity and its principal owners, officers, affiliates and subcontractors. This questionnaire is used to assist contracting officers in making the determination of responsibility and to permit compliance with local law concerning creation and maintenance of a computerized database concerning contractor background (9 RCNY 5-02 [e]).

      . In March 1992, three contracts were awarded to DeFoe Corp. for repairs to the Hunts Point Bridge (March 1, 1992), the Gerard River Bridges (March 20, 1992), the Longwood Bridge and the Tiffany Bridge (March 31, 1992).

      . Section 328 (c) provides in part: "c. The comptroller may, within thirty days of the date of filing of the contract with the comptroller’s office, object in writing to the registration of the contract, if in the comptroller’s judgment there is sufficient reason to believe that there is possible corruption in the letting of the contract or that the proposed contractor is involved in corrupt activity. Such objection shall be delivered within such thirty day period to the mayor setting forth in detail the grounds for the comptroller’s determination.”

      . New York City Charter § 328 (a) provides in part: "a. No contract or agreement executed pursuant to this charter or other law shall be implemented until (1) a copy has been filed with the comptroller and (2) either the comptroller has registered it or thirty days have elapsed from the date of filing, whichever is sooner, unless an objection has been filed pursuant to subdivision c of this section.”

      . Therefore, appellant contends, 27 days had elapsed by April 20, 1993, when NYCDOT withdrew the contract, leaving only three days within the 30-day period when the contract was resubmitted in December 1993.

      . Additionally, John and Rosemary Amicucci are beneficiaries of the blind trust. Pursuant to the "Responsibility Certification,” the Amicuccis are authorized, with the approval of NYCDOT, to select the trust administrator (trustee). Further, Rosemary Amicucci is the daughter of Dario Cioti.

      . Citing the City’s mandate under the Procurement Policy Board Rules (9 RCNY 5-02 [a] [1]) to contract with only responsible vendors, the Comptroller highlighted business integrity as a specific factor NYCDOT should consider in assessing vendor responsibility (9 RCNY 5-02 [b] [2] [vi]).

      . Factors affecting a contractor’s responsibility may include financial resources; technical qualifications; experience, organization, material, equipment, facilities and personnel resources and expertise; a satisfactory record of performance; a satisfactory record of business integrity; the existence of accounting and auditing procedures adequate to control property, funds or other assets; and compliance with requirements for the utilization of small, minority-owned and women-owned businesses as subcontractors (9 RCNY 5-02 [b] [2]).

      . One principal, who owned 50% of Abco, was convicted of falsifying information on a Federal Housing Administration loan application and of driving while intoxicated. The other principal, who owned 25% of Abco, had been convicted of conspiracy, involving the obstruction of interstate commerce, income tax evasion and possession of stolen property.


author: Chief Judge Kaye.

text:
    [665 NE2d 164, 642 NYS2d 594]
    The People of the State of New York, Appellant, v Ricardo Agramonte, Respondent. The People of the State of New York, Appellant, v Rashid Rahman, Respondent.
    Argued January 2,1996;
    decided April 2, 1996

      POINTS OF COUNSEL

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Linda Breen and Roseann B. MacKechnie of counsel), for appellant in the first above-entitled action.
    Defendant waived any challenge to the trial court’s mealtime deliberations procedure. Moreover, violations of CPL 270.30 and 310.10 should be subject to a harmless error analysis. Accordingly, the court below erred in reversing defendant’s conviction because defendant was not prejudiced when the alternates were sent to dinner with the regular jurors. (People v Lilly, 187 AD2d 674, 81 NY2d 973; People v Webb, 78 NY2d 335; People v Santana, 163 AD2d 495, 78 NY2d 1027; People v Wood, 66 NY2d 374; People v Di Nicolantonio, 140 AD2d 44; People v Udzinski, 146 AD2d 245; Rose v Mitchell, 443 US 545; People v D'Alvia, 171 AD2d 96; Young v State of Alabama, 443 F2d 854, 405 US 976; United States v Eisen, 974 F2d 246.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn
      (Linda Breen and Roseann B. MacKechnie of counsel), for appellant in the second above-entitled action.
    Violations of CPL 270.30 and 310.10 should be subject to a harmless error analysis. Accordingly, the court below erred in reversing defendant’s conviction because defendant was not prejudiced when the alternates were sent to dinner with the regular jurors. (People v Santana, 163 AD2d 495, 78 NY2d 1027; People v Wood, 66 NY2d 374; People v Di Nicolantonio, 140 AD2d 44; People v Udzinski, 146 AD2d 245; Rose v Mitchell, 443 US 545; People v Webb, 78 NY2d 335; People v D’Alvia, 171 AD2d 96; Young v State of Alabama, 443 F2d 854, 405 US 976; United States v Eisen, 974 F2d 246; United States v Persico, 832 F2d 705, 486 US 1022.)

      Kimberlianne Podías, New York City, and Daniel L. Green-berg for respondent in the first and second above-entitled actions.
    The court below correctly reversed based on the violation of this already-established mode of proceedings error without applying prejudice analysis. (People v Santana, 78 NY2d 1027; People v Patterson, 39 NY2d 288, 432 US 197; People v Mehmedi, 69 NY2d 759; People v Favor, 82 NY2d 254; People v Dokes, 79 NY2d 656; People v Bayes, 78 NY2d 546; People v Coons, 75 NY2d 796; People v Ahmed, 66 NY2d 307; Cancemi v People, 18 NY 128; People v Gray, 86 NY2d 10.)
   OPINION OF THE COURT

Chief Judge Kaye.

These two appeals by the People involve deviations from the statutory requirements that a deliberating jury be sequestered (CPL 310.10) and that alternate jurors "be kept separate and apart from the regular jurors” once deliberations have begun (CPL 270.30). We conclude that these two statutory violations are unpreserved as a matter of law absent timely objection by defendants.'

People v Agramonte

On the evening of March 3, 1990, defendant and three unapprehended accomplices entered the home of Pasqual Rodriguez, an acquaintance of defendant’s, under the guise of purchasing jewelry. Once inside, they strangled and stabbed Rodriguez to death, repeatedly stabbed Rodriguez’s wife, and stole the couple’s money and jewelry.

During defendant’s trial, after deliberations had commenced, the trial court delivered the following instruction prior to sending the jurors to dinner:

Now, I have some special instructions for you as far as what you can do next. I am going to send the 15 of you to eat, and you will be eating together with the Court Officers. So, at this point I want the 12 jurors that are deliberating to stop deliberating. You may not at all discuss during dinner the case at all. Because, firstly, the three alternates will be with you eating and the Court Officers will be with you. Thirdly, there will be people wherever you go to eat, waiter and waitresses. The minute the 12 of you come back to this courthouse after dinner and are put back into the jury room, start to deliberate, the three alternates will be put into another room. Don’t the three of you talk about the case. And have a good dinner.

At no point did defendant object to the court’s announced intention to send the alternate and regular jurors to dinner together. Defendant was ultimately convicted of two counts of murder in the second degree, one count of attempted murder in the second degree, one count of robbery in the first degree and two counts of assault in the first degree.

Relying on our decisions in People v Santana (78 NY2d 1027) and People v Coons (75 NY2d 796), the Appellate Division deemed the error reviewable as a matter of law despite defendant’s failure to object and reversed the convictions, finding that the trial court had violated CPL 270.30 and 310.10 by allowing the alternate jurors to dine with the regular jurors after deliberations had begun.

People v Rahman

There was testimony at defendant Rahman’s trial that during the early morning hours of December 3, 1987, defendant argued with Tabu Stokes in a nightclub in Brooklyn. About 20 minutes later, defendant fired several shots at Stokes, killing him.

During trial, the court interrupted the jury’s deliberations to send them to dinner and instructed them as follows:

I think it is a good time for dinner. We’re going to send you out for dinner now. You’ll come back and continue your deliberations for awhile after dinner * * * Have a good dinner. Don’t discuss the case, of course, during your dinner. The alternates will join you for dinner.

Defendant registered no protest. He was convicted of murder in the second degree and criminal possession of a weapon in the second degree.

The Appellate Division reversed and ordered a new trial. It too found the error reviewable as a matter of law notwithstanding the absence of an objection and concluded that permitting the alternate jurors to dine with the regular jurors after deliberations had commenced violated CPL 270.30 and 310.10.

Analysis

The Criminal Procedure Law provides for mandatory sequestration of a deliberating jury. Under CPL 310.10, jurors "must be continuously kept together under the supervision of a court officer or court officers” once they have retired to deliberate. Such court officers, moreover, "may not speak to or communicate with [the jurors] or permit any other person to do so” except where authorized by the court or when performing administerial duties (CPL 310.10). The Legislature recently amended CPL 310.10, granting the trial court discretion to dispense with sequestration in certain classes of cases (see, L 1995, ch 83, § 209).

CPL 270.30 authorizes the selection of alternate jurors who may be substituted for any regular juror unable to continue serving (see also, CPL 270.35). Once the jury has retired to deliberate, CPL 270.30 dictates that the court must either discharge the alternate jurors after obtaining the consent of defendant and the People or "direct the alternate jurors not to discuss the case and must further direct that they be kept separate and apart from the regular jurors.”

In the two cases now before us, during deliberations the alternate jurors were sent to dinner with the regular jurors. As the People concede, this breached both the directive in CPL 270.30 that the alternate and regular jurors be kept "separate and apart” and the sequestration requirement of CPL 310.10. Defendants urge that, because these statutory violations have been classified as affecting "the organization of the court or the mode of proceedings prescribed by law” (People v Patterson, 39 NY2d 288, 295, affd 432 US 197), reversal of their convictions was appropriate.

As we explained in the seminal Patterson case, certain deviations from mandated procedural, structural and process-oriented standards affect "the organization of the court or the mode of proceedings prescribed by law” and present a question of law even without a timely objection (People v Patterson, 39 NY2d at 295; see also, People v Gray, 86 NY2d 10, 21). Only fundamental defects in judicial proceedings, however, fall within this very narrow category of so-called "mode of proceedings” errors (see, People v Patterson, 39 NY2d at 295; People v Bradner, 107 NY 1, 4-5). Thus, where "the error complained of goes to the essential validity of the proceedings conducted below” such that "the entire trial is irreparably tainted,” it need not be preserved to present a question of law reviewable by this Court (People v Patterson, 39 NY2d at 295-296; see, e.g., People v O’Rama, 78 NY2d 270, 280; People v Ahmed, 66 NY2d 307, 311-312; People v Anderson, 16 NY2d 282; Cancemi v People, 18 NY 128, 138).

In People v Coons (75 NY2d 796), we concluded that a violation of CPL 310.10 constituted a "mode of proceedings” error, without discussion of the underlying requirement. We subsequently clarified in People v Webb (78 NY2d 335, 339), however, that the sequestration requirement does not "entailQ a part of the process * * * essential to the form and conduct of the actual trial.” Indeed, we expressly stated that "the sequestration provision does not implicate fundamental rights that are an integral part of the trial itself’ (id.) (emphasis added).

Webb makes plain that the failure to sequester the deliberating jurors does not constitute a fundamental deviation from the proper mode of judicial proceedings. Our holding in that case thus leads to the inescapable conclusion that violations of the sequestration provision do not fall within the "one very narrow exception to the requirement of a timely objection” (People v Patterson, 39 NY2d at 295).

Nor are violations of CPL 270.30 immune from traditional preservation requirements. In People v Santana (163 AD2d 495), the Appellate Division held that it was error to allow the alternate jurors to dine with the 12 regular jurors once deliberations had commenced, in violation of both CPL 270.30 and CPL 310.10, and we affirmed that decision (78 NY2d 1027). In concluding that the error constituted a "mode of proceedings” defect that was reviewable notwithstanding defendant’s failure to object, the Appellate Division relied on our earlier decision in Coons. Notably, the lower court decision in Santana did not deem violations of CPL 270.30 to constitute independent "mode of proceedings” error. Neither decision, moreover, concluded that that statutory requirement "goes to the essential validity of the proceedings conducted below,” irreparably tainting the entire trial (People v Patterson, 39 NY2d at 295-296). Deviations from CPL 270.30 must therefore be preserved to present a question of law. To the extent that our affirmance in Santana suggests otherwise, it should no longer be followed.

Inasmuch as the defendants did not register any protest to the errors complained of in these two appeals, they are unpreserved and unreviewable by this Court.

Accordingly, in each case the order of the Appellate Division should be reversed and the case remitted to that court for consideration of the facts pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b).

Judges Simons, Titone, Bellacosa, Smith, Levine and Cipabick concur.

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


author: Cipaeick, J. Chief Judge Kaye

text:
    [665 NE2d 167, 642 NYS2d 597]
    The People of the State of New York, Respondent, v Richard McNair, Appellant.
    Argued February 14, 1996;
    decided April 4, 1996

      POINTS OF COUNSEL

      David Goodman, Public Defender of Dutchess County, Poughkeepsie (David Steinberg of counsel), for appellant.
    I. County Court exceeded its authority by imposing a term of electronic monitoring as part of its probationary sentence since the Penal Law does not authorize such a form of punishment, or prescribe its limits when imposed. (People v Letterlough, 86 NY2d 259; People ex rel. Kornaker v Meloni, 134 Misc 2d 444, 134 AD2d 868, 70 NY2d 616.) II. County Court exceeded its authority by delegating to the Probation Department the court’s power to fix the term of electronic monitoring to which appellant was subject. (People v Felix, 58 NY2d 156, 464 US 802; People v Selikoff, 35 NY2d 227, 419 US 1122; People ex rel. Johnson v Martin, 283 App Div 478, 307 NY 713; People v Fuller, 57 NY2d 152; United States v Porter, 41 F3d 68; People ex rel. Perry v Cassidy, 43 Misc 2d 189, 23 AD2d 706; People v Sorge, 96 Misc 2d 922; People v McDonald, 136 Misc 2d 1047.) III. County Court exceeded its authority by imposing a term of up to one year of electronic monitoring in addition to the sentence of five years’ probation and six months’ imprisonment. (People ex rel. Kornaker v Meloni, 134 Misc 2d 444.)

      William V. Grady, District Attorney of Dutchess County, Poughkeepsie (Bridget Rahilly Steller of counsel), for respondent.
    The sentence imposed was in all respects proper. (People v Letterlough, 86 NY2d 259; People v Howland, 145 AD2d 866; People v Bilello, 124 AD2d 665; People v Ryan, 134 Misc 2d 343; People ex rel. Kornaker v Meloni, 134 Misc 2d 444, 134 AD2d 868, 70 NY2d 616; Matter of Hawkins v Coughlin, 72 NY2d 158; Matter of Franks v Koehler, 159 AD2d 213; People v Graham, 89 AD2d 671; Matter of Guiseppone v Ward, 70 AD2d 731.)
   OPINION OF THE COURT

Cipaeick, J.

In People v Letterlough (86 NY2d 259), this Court announced a set of guiding principles to determine whether conditions of probation are authorized by the probation statute’s catch-all provision (see, Penal Law § 65.10 [2] [l]). Based on these interpretive guidelines, we now invalidate the extra-statutory probationary condition of electronic monitoring at issue in this case.

On October 27, 1993, defendant was arrested for felony counts of driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the first degree. Pursuant to a plea agreement, defendant pleaded guilty to a superior court information charging him with driving while intoxicated as a felony and was sentenced by County Court to a five-year term of probation, to include six months of incarceration in county jail and one year of electronic monitoring. County Court also ordered defendant to attend a victim impact panel and pay a fine and administrative fees in the amount of $1,155. At sentencing, defendant voiced an objection to the electronic monitoring.

The Appellate Division affirmed defendant’s sentence, rejecting defendant’s argument that the condition of electronic monitoring was beyond County Court’s power to impose (People v McNair, 212 AD2d 550). A Judge of this Court granted leave to appeal and we now reverse.

Analysis of the issue on appeal — whether electronic monitoring is a statutorily authorized condition of probation — begins and ends with People v Letterlough (86 NY2d 259, supra). In Letterlough, this Court invalidated the scarlet-letter condition of probation that required an individual convicted of driving while intoxicated to affix a fluorescent sign to the license plate of his car bearing the words, "convicted dwi.” The Court cited two separate reasons for striking down the probationary condition as exceeding the sentencing court’s authority under Penal Law § 65.10 (2) (l). First, the condition of probation was not fundamentally rehabilitative, but was predominantly punitive and deterrent. Second, the condition could not be imposed absent specific legislative authorization because of the difficult policy choices involved and the need for uniform State-wide standards. For these very reasons, the probationary condition of electronic monitoring at issue in this case similarly exceeds the court’s authority under the Penal Law.

Penal Law § 65.10 (2) (l) permits a sentencing court to fashion probationary conditions "reasonably related to * * * rehabilitation.” In Letterlough, we rejected an expansive reading of section 65.10 (2) (l) and held that given the probation statute’s "singular focus” on rehabilitation, the catch-all provision only permits probationary conditions that are "fundamentally 'rehabilitative’ in the sense of that word that distinguishes it from the societal goals of punishment or deterrence” (86 NY2d, at 265, supra). If the condition of probation is not "fundamentally rehabilitative,” we held, it is invalid notwithstanding any incidental rehabilitative effects.

A condition of electronic monitoring requires the defendant to wear an electronic device that transmits a signal to a central computer alerting the Probation Department when the defendant travels beyond a certain distance in violation of sentence restrictions. In an effort to demonstrate the rehabilitative purpose of the electronic monitoring in this case, the People rely on the sentencing court’s statement that electronic monitoring is necessary to provide the court "reasonable assurance that you’re going to comply with treatment, that you’re going to recognize that you can’t do this anymore.” However, a reading of the entire relevant passage from the record reveals that the sentencing court was motivated by something other than rehabilitation. In response to defendant’s objection to the condition of electronic monitoring, the court stated:

"[Y]ou have to earn society’s trust not to drive a car and get drunk. And I looked at your record and you have three DWI’s in your past. And so I have to assure myself that the world is safe from your driving. The only way I could do that is to either send you to state prison or to enter an arrangement like this where I have some reasonable assurance that you’re going to comply with treatment, that you’re going to recognize that you can’t do this anymore. And between the time you get out of jail and the time they let you off the electronic monitor, if you are compliant with the terms of probation, then you will have earned that trust.”

This case is thus remarkably similar to Letterlough in that the sentencing court’s "true design was not to advance defendant’s rehabilitation, but rather to 'warn the public’ of,” or in this case protect the public from, "the threat presented by [defendant’s] presence behind the wheel” (86 NY2d, at 266, supra). Because the sentencing court’s true aims in this case were public safety and surveillance, not rehabilitation, Letter-lough requires that the condition of electronic monitoring be invalidated.

As the sentencing court itself stated, the electronic monitoring was imposed primarily to "assure [the court] that the world is safe from [defendant’s] driving.” This is plainly a public safety aim. According to Letterlough, questions of public safety, such as the "degree of threat this defendant posed to society,” may not be considered in determining whether a condition of probation is proper under the catch-all provision (86 NY2d, at 265, supra). The promotion of public safety, while commendable, is not a "fundamentally rehabilitative” purpose and will not validate a condition of probation under Penal Law § 65.10 (2) (l) (see, Letterlough, 86 NY2d, at 269, supra ["the reference in the probation statute’s catch-all provision to the lone goal of rehabilitation renders County Court’s stated public safety motivation for imposing the special condition improper”]).

In tandem with the public safety aim of the electronic monitoring, the sentencing court also imposed this condition of probation to keep defendant under the Probation Department’s surveillance. However, the use of electronic monitoring as a surveillance device serves the goal of specific deterrence by incapacitating defendant from drinking and driving, not the distinct goal of rehabilitation (cf., Kagehiro, Psycholegal Issues of Home Confinement, 37 St Louis U LJ 647 [1993] ["a home confinee convicted of DUI may be prevented from driving while drunk, but home confinement does not prevent drinking”]). If surveillance has any rehabilitative effect, it is only in the purely incidental sense of restricting defendant’s mobility and thereby reducing his opportunity for illicit behavior.

Finally, the use of electronic monitoring raises a host of policy issues — penological, ethical, technological, and fiscal— that are the province of the Legislature, not the Judiciary (see, People v Letterlough, 86 NY2d 259, 267, supra). While the People attempt to downplay the need for legislative involvement by citing defendant’s failure to demonstrate any abuses associated with the particular probationary program in this case, a ruling upholding electronic monitoring would inevitably lead to the uneven and intrusive application of the electronic monitoring technology as courts around the State experiment with this unregulated sentencing tool. Under the circumstances, a sentencing alternative such as electronic monitoring requires legislative enactment of uniform standards to regulate its use (cf., Letterlough, 86 NY2d, at 267, supra; see generally, Burns, Electronic Home Detention: New Sentencing Alternative Demands Uniform Standards, 18 J Contemp L 75 [1992]).

In light of this analysis, we do not reach defendant’s arguments that the sentencing court improperly delegated sentencing power to the Probation Department or that the condition of electronic monitoring constituted an extension of imprisonment in violation of Penal Law § 60.01 (2) (d).

Accordingly, the order of the Appellate Division should be reversed, the plea vacated and the case remitted for further proceedings on the superior court information.

Chief Judge Kaye

(dissenting). Convicted for the third time of the felony of driving while intoxicated (Vehicle and Traffic Law § 1192), defendant — an admitted alcoholic — received a sentence of five years’ probation, the first six months of which were to be served in jail, followed by a one-year period of electronic home monitoring. Because we conclude that the electronic monitoring imposed was well within the sentencing court’s statutory discretion under Penal Law § 65.10, we respectfully dissent.

Penal Law § 65.10 (1) states as a general proposition that conditions of probation "shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so” (Penal Law § 65.10 [1]). Implicit in this language are two important principles. First, as we recently observed in People v Letter-lough (86 NY2d 259), a condition of probation must be primarily rehabilitative in nature — intended to assist a defendant in resisting the temptation to commit a crime once again. The second important principle, also derived directly from the language of the statute, is that the decision as to which combination of conditions to impose on a particular defendant is a matter of the sentencing court’s sound discretion.

In accordance with these explicit statutory principles, Penal Law § 65.10 (2) lists a dozen or so different types of conduct which a court may order a defendant to perform or to refrain from doing as a condition of its sentence of probation. These include refraining from frequenting disreputable places, finding suitable employment, participating in an alcohol or substance abuse program, supporting dependents and making restitution (Penal Law § 65.10 [2] [b], [c], [e], [f], [g]). Recognizing, however, that none of these conditions — alone or in combination — is likely to do much good if ignored or evaded, the statute goes on to prescribe a variety of supervisory mechanisms that can be imposed in addition to the other conditions in an effort to insure compliance — for example, by having a defendant report regularly to a probation officer or remain within the jurisdiction (Penal Law § 65.10 [3] [a], [b]).

That the above measures were not intended to be exclusive, but merely illustrative, is made pellucidly clear by Penal Law § 65.10 (2) (l), which permits courts to impose "any other conditions reasonably related to * * * rehabilitation.” (Emphasis added.)

Plainly, the purpose of this broad catch-all provision is to provide sentencing Judges with flexibility to fashion additional conditions — not expressly listed in the statute — based on the particular rehabilitative needs and circumstances of the defendants before them. "In sentencing a defendant to probation, the court has open-ended authority under Penal Law § 65.10 (2) (l) to impose conditions which are 'reasonably related to [defendant’s] rehabilitation’ ” (People v Howland, 145 AD2d 866, 867). By reversing the order of the Appellate Division, the majority has, for all practical purposes, eliminated this flexibility and discretion.

Believing itself constrained by our recent decision in People v Letterlough (86 NY2d 259), the majority concludes that the one-year electronic monitoring program imposed here exceeded the bounds of the court’s discretion under Penal Law 65.10 (2) (l). As the majority asserts: "Analysis of the issue * * * whether electronic monitoring is a statutorily authorized condition of probation * * * begins and ends with People v Letter-lough” (majority opn, at 774). This simply is not so.

Letterlough, decided only last year, deals with the different and far more draconian sanction of requiring a defendant to attach to the license plate of his car a large sign with fluorescent lettering reading "convicted dwi.” In vacating defendant’s plea in that case, we noted that the court’s "true design” in imposing the "convicted dwi" sign as a condition of probation was not to rehabilitate defendant, but instead to punish and humiliate him by publicly disclosing the fact of his crime (86 NY2d at 266). Given this motive and noting that the "convicted dwi” sign "is out of step with the various other devices specifically authorized [in the statute],” we concluded that the "punitive and deterrent nature of the disputed 'scarlet letter’ component of the ['convicted dwi’ sign] overshadows any possible rehabilitative potential” (id.).

The general rule to be drawn from Letterlough is that a court may not create its own probationary condition which is predominantly punitive in the sense that its punitive elements overshadow its rehabilitative components. Conditions that are not primarily punitive in nature, however, are still authorized by the language of Penal Law § 65.10 (2) (l) and Letterlough does not diminish their availability or lawfulness.

It is beyond question that no such predominantly punitive condition is present here. The electronic monitoring device at issue was part of an integrated rehabilitative plan requiring defendant to abstain from purchasing or drinking alcohol, attend an accredited alcohol treatment program and avoid places associated with alcohol consumption such as a bar, tavern or liquor store. Utilized in conjunction with these conditions, the electronic monitoring was designed to allow defendant to remain in the privacy of his own home with his family — instead of in prison — while learning to control himself in the presence of alcohol (see, e.g., Burns, Electronic Home Detention: New Sentencing Alternative Demands Uniform Standards, 18 J Con-temp L 75, 89-90 [1992]).

In sharp contrast to the fluorescent license plate sign, the only physical manifestation of the electronic monitoring is a small bracelet around defendant’s ankle or wrist which sends an electronic signal notifying the Probation Department when he leaves his home without authorization (see, People v Ryan, 134 Misc 2d 343, 344-345 [describing Nassau County Electronic Home Detention Program]). By ordering defendant to wear such a device, the trial court clearly did not intend to humiliate him publicly. Nor is the electronic monitoring likely to "negate any positive effect derived from the imposition of [the] other therapeutic conditions” imposed to treat his addiction (Letterlough, 86 NY2d at 266). In fact, while noting that it would otherwise have imposed a prison sentence of up to four years in light of defendant’s recidivism, the court explained at defendant’s sentencing that only through electronic monitoring could it "have some reasonable assurance that you’re going to comply with treatment, that you’re going to recognize that you can’t do this any more.”

Moreover, unlike the "convicted dwi” sign at issue in Letterlough, the electronic monitoring device used here is not different in kind from the remaining devices listed in Penal Law § 65.10 (see, Letterlough, 86 NY2d at 266). Like several of the conditions already authorized, such as reporting to a probation officer (Penal Law § 65.10 [3] [a]), not leaving the jurisdiction (see, Penal Law § 65.10 [3] [b]) and posting a bond (Penal Law § 65.10 [2] [j]), electronic monitoring simply insures that defendant complies with the other specified conditions by keeping the Probation Department informed about his whereabouts.

Even more troubling, however, is the majority’s expansive reading of Letterlough beyond its legal and factual particulars. Ignoring that Letterlough actually involved a highly unusual, "scarlet letter”-type probationary condition, the majority reasons that the only conditions that are acceptable under Letterlough are those that are exclusively — not merely primarily — rehabilitative. But as this Court in Letterlough readily conceded, many if not most of the probationary sentences already authorized by Penal Law § 65.10, such as requiring a probationer to make restitution or refrain from frequenting disreputable places, though unquestionably rehabilitative, have some "punitive and deterrent effects” as well (86 NY2d at 264-265). Thus, Letterlough cannot fairly be read to stand for the proposition that a probationary condition not mentioned in Penal Law § 65.10 is prohibited simply by virtue of the fact that it also serves as a punishment or specific deterrent.

As noted above, Penal Law § 65.10 (1) begins with the direction that the conditions of probation "shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so.” This language reflects the Legislature’s commonsense understanding that without the aid of additional conditions to insure compliance with the court’s order, attempts at rehabilitation are likely to be for naught. Boiled down to its essential features, a fluorescent license plate sign reading "convicted dwi" is by no means "remarkably similar” (majority opn, at 775) to an unobtrusive electronic bracelet worn under defendant’s clothing mainly in his own home, which was intended to assist defendant in his efforts at rehabilitation. By concluding that Letterlough prohibited the trial court’s imposition of electronic monitoring in this case, the majority has effectively written the broad catch-all provision out of the statute. The argument that electronic monitoring could not be imposed without comprehensive legislative authorization (see, majority opn, at 776) belies not only what appears to be common practice throughout this State (see, People v Johnson, 187 AD2d 532; People v Ryan, supra), but also the language of Penal Law § 65.10 itself. The unfortunate consequence will be to deprive Judges of the discretion to fashion sentencing alternatives other than those explicitly mentioned in the statute — a discretion which the Legislature clearly intended sentencing courts to have.

Judges Simons, Titone and Smith concur with Judge Ciparick; Chief Judge Kaye dissents and votes to affirm in a separate opinion in which Judges Bellacosa and Levine concur.

Order reversed, defendant’s plea vacated and case remitted to County Court, Dutchess County, for further proceedings in accordance with the opinion herein.

       The converse of this rule, as we recognized in Letterlough, is that a condition of probation that is fundamentally rehabilitative will be upheld notwithstanding incidental punitive or deterrent effects (86 NY2d, at 264-265, supra). Thus, the dissent’s concern that our holding limits permissible conditions of probation to those that are "exclusively — not merely primarily — rehabilitative” is unfounded (dissenting opn, at 780).


text:
    [665 NE2d 172, 642 NYS2d 602]
    The People of the State of New York, Appellant, v Thomas Jackson, Respondent.
    Argued February 15,1996;
    decided April 4, 1996

      POINTS OF COUNSEL

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Leonard Joblove and Roseann B. MacKechnie of counsel), for appellant.
    I. The denial of the motion to dismiss the indictment was proper, because CPL 210.20 (6) did not bar resubmission of the case to the Grand Jury more than 30 days after the entry of an order reducing the indictment to a lesser included offense. (People v Mobil Oil Corp., 48 NY2d 192; People v Tychanski, 78 NY2d 909; Pajak v Pajak, 56 NY2d 394; People v Finnegan, 85 NY2d 53; Matter of Jose R., 83 NY2d 388; People v Nuccio, 78 NY2d 102; People v Cade, 74 NY2d 410; Arbergast v Board of Educ., 65 NY2d 161; Goncalves v Regent Intl. Hotels, 58 NY2d 206; People v Roe, 74 NY2d 20.) II. The court below should have rejected defendant’s claim because he forfeited the claim by pleading guilty and because he expressly waived the right to appeal. (People v Prescott, 66 NY2d 216, 475 US 1150; People v Taylor, 65 NY2d 1; People v Gerber, 182 AD2d 252; People v Sobotker, 61 NY2d 44; People v Brothers, 50 NY2d 413; People v Friscia, 51 NY2d 845; People v Boston, 75 NY2d 585; People ex rel. Battista v Christian, 249 NY 314; People v Zanghi, 79 NY2d 815.)

      Sally Wasserman, New York City, for respondent.
    The decision of the court below should be affirmed by this Court because after the court reduced the only count of the indictment pursuant to CPL 210.20, the prosecution’s failure to take any action within the following 30-day period as required by the plain language of subdivision (6) mandated the dismissal of the belated new indictment and so deprived the court of jurisdiction. In any event, in failing to move for the dismissal of the indictment prior to allowing his client to enter a guilty plea, counsel was ineffective. (People v Marsh, 127 AD2d 945; People v Nunez, 157 Misc 2d 793; People v Rios, 203 AD2d 491; People v Gega, 151 Misc 2d 70; People v Powell, 148 Misc 2d 966; People v Boston, 75 NY2d 585; People v Iannone, 45 NY2d 589; People v Wilkins, 68 NY2d 269; People v Seaberg, 74 NY2d 1.)
   OPINION OF THE COURT

Chief Judge Kaye.

When a trial court reduces an indictment to a lesser count on the basis of legally insufficient evidence, CPL 210.20 (6)— which stays the effectiveness of the reduction order for 30 days — gives the People the following three options: (a) accept the court’s order and file the reduced indictment, (b) resubmit the higher count to the same or a different Grand Jury or (c) challenge the propriety of the reduction by appealing the order to a higher court.

This case calls upon us to address two questions resulting from what the trial court accurately described as a "vacuum” in the statute (People v Jackson, 154 Misc 2d 769, 776). Specifically, we must first decide what happens when the People fail to exercise any of the three options within 30 days. Must the court dismiss all charges pending against the defendant, or may the People proceed against the defendant on the reduced count? A second, related question is whether the People are precluded from resubmitting the higher count after 30 days have passed without first seeking permission of the court upon a showing of good cause. Not surprisingly, variations on both these questions have divided the trial courts (compare, People v Jackson, supra;, and People v Powell, 148 Misc 2d 966, with People v Ferguson, 159 Misc 2d 51; People v Nunez, 157 Misc 2d 793; and People v Gega, 151 Misc 2d 70).

We agree with the People that neither the language nor the structure of CPL 210.20 contemplates dismissal of the reduced count as a result of the District Attorney’s failure to act within 30 days, and therefore answer the first question in the negative; the prosecution can proceed on the reduced count. Our answer to the second question, however, is in the affirmative: the statute requires the People either to resubmit the higher count within 30 days of the reduction order or, upon a showing of good cause, to seek leave of court for an extension of time in which to do so.

In that the People here failed either to resubmit the higher count within 30 days or to show good cause for their delay, the only charge that remained viable after the expiration of the stay was the reduced count. While the People might have proceeded on the reduced count, the defendant has by now already served more than the maximum permissible sentence for that crime, and we therefore affirm the order of the Appellate Division dismissing the indictment.

The relevant facts are undisputed. On March 7,1991, a Kings County Grand Jury indicted defendant of one count of Penal Law § 265.02 (4) (criminal possession of a weapon in the third degree) which makes it a crime to possess any loaded firearm in a place other than one’s home or business. On June 7, 1991, upon defendant’s motion to inspect the Grand Jury minutes and reduce the indictment (CPL 210.30), the trial court ordered the indictment reduced to criminal possession of a weapon in the fourth degree, a lesser included offense, on the ground that the People failed to establish that the location where defendant was observed with the firearm was not his home or business (see, People v Menchetti, 76 NY2d 473, 478). The court then directed the People to proceed pursuant to CPL 210.20 (6) and adjourned the case to allow the People to exercise one of the three statutory options during the next 30 days.

When the case reconvened 31 days later, on July 8, 1991, the People acknowledged that they had taken no action pursuant to CPL 210.20 (6). Assuming that the case would proceed on the reduced indictment, the trial court granted the People’s request for a one-month adjournment.

In the meantime, the People resubmitted the case and succeeded in obtaining a new indictment charging defendant with the more serious crime of attempted criminal possession of a weapon in the third degree. Defendant eventually pleaded guilty in satisfaction of the later indictment.

Defendant then moved to withdraw his plea on the ground that the People’s re-presentment of attempted criminal possession of a weapon in the third degree more than 30 days after the original indictment had been reduced divested the Grand Jury of jurisdiction. Focusing solely on the question whether the People properly submitted the more serious count a second time, the trial court denied the motion, reading CPL 210.20 (6) as imposing no temporal limitation on the People’s authority to resubmit (154 Misc 2d 769, supra).

Relying on its previous decision in People v Rios (203 AD2d 491), the Appellate Division disagreed, concluding that CPL 210.20 (6) required the People to obtain the explicit permission of the trial court in order to re-present more than 30 days after the reduction order (212 AD2d 732). Noting that defendant had. already served more than the maximum sentence permissible upon conviction for the offense of criminal possession of a weapon in the fourth degree, the Appellate Division did not address in any detail the reasons why CPL 210.20 would not have precluded resumption of the prosecution on the reduced indictment — as we now do.

CPL 210.20, entitled "Motion to dismiss or reduce indictment,” provides the procedural mechanism for pretrial challenges to defects, procedural and substantive, in Grand Jury proceedings leading to an indictment. Prior to the passage of the recent amendments to CPL 210.20 at issue here, Trial Judges were powerless to reduce counts in indictments based on evidentiary insufficiency (see, People v Cruz, 84 AD2d 962). Instead, the former statute permitted only outright dismissal on that basis. Yet because courts were required to sustain indictments when the evidence before the Grand Jury was sufficient to establish the offense charged or any lesser included offense, it was not uncommon for defendants to stand trial on and ultimately be convicted of crimes for which there had not been sufficient evidence before the Grand Jury (see, Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 210.20 at 598).

In fact, a Trial Judge’s inability under the former statute to reduce an indictment based on the evidentiary realities of the case at times had the effect of disadvantaging defendants in plea negotiations by giving prosecutors unfair bargaining power {see, 1990 Report of Advisory Comm on Criminal Law and Procedure, reprinted in 1990 McKinney’s Session Laws of NY at 2860). Additionally, an "overcharged” indictment artificially inflated the number of peremptory challenges available to each side. These and other deficiencies in the former statute had the effect of significantly delaying the final resolution of criminal cases {id.).

Responding to these problems, the Legislature in 1990 amended the statute to expressly authorize trial courts to reduce counts when appropriate. Thus, subdivision (1-a) of the statute now provides that if a court "finds that the evidence before the grand jury was not legally sufficient to establish the commission by the defendant of the offense charged in any count contained within the indictment,” it shall order the count reduced to "the most serious lesser included offense with respect to which the evidence before the grand jury was sufficient” (CPL 210.20 [1-a]). According to a State Executive Department memorandum in support of the 1990 amendment, "[plermitting judges to reduce counts of indictments that are not supported by grand jury evidence will provide a judge with flexibility to do justice when the grand jury evidence does not support an offense charged but does support a lesser included offense” (Mem of State Executive Dept, 1990 McKinney’s Session Laws of NY at 2381, 2383). Recognizing, however, the possibility that a defendant might be tempted to exercise the statutory right to plead guilty to the reduced indictment before the People had a fair chance to respond (see, CPL 220.60), newly added subdivision (6) further provides that "[t]he effectiveness of an order reducing a count or counts of an indictment * * * shall be stayed for thirty days following the entry of such order unless such stay is otherwise waived by the people” (CPL 210.20 [6]). Designed to deter misuse of reduction orders by defendants, this automatic 30-day stay keeps the scales from tipping too far the other way by protecting the People’s prerogatives both in making appropriate charging decisions and in conducting plea negotiations (see, 1990 Report of Advisory Comm on Criminal Law and Procedure, reprinted in 1990 McKinney’s Session Laws of NY at 2860).

Thus, on or before the conclusion of the 30-day period, the statute authorizes the People to exercise one of the following three options:

"(a) Accept the court’s order by filing a reduced indictment * * *;
"(b) Resubmit the subject count or counts to the same or a different grand jury within thirty days of the entry of the order or such additional time as the court may permit upon a showing of good cause; * * * [or]
"(c) Appeal the order pursuant to subdivision one-a of section 450.20” (CPL 210.20 [6] [a]-[c]).

Turning to resolution of the first question presented— whether the People’s failure to exercise any of these three options before the expiration of the 30-day stay requires a dismissal on the merits — the common understanding of the term "stay” as merely a temporary suspension in the normal course of proceedings which are to resume once the stay is lifted persuades us that a dismissal is not required. A reading of the statute as a whole indicates that the 30-day stay was designed to serve as a waiting period to give the People time to reach a decision on how to proceed — not, as the defendant contends, as its own statutory limitations period.

Moreover, the Legislature’s failure to specify dismissal as the proper remedy for the People’s failure to exercise one of the statutory options during the stay is significant. Presumably, had the Legislature intended there to be a dismissal of the reduced count, it would have so provided. As we stated in another context, "[t]he short answer to whether prosecution can be renewed * * * is that it may because the Criminal Procedure Law does not prohibit it” (People v Nuccio, 78 NY2d 102, 104; see also, Matter of Jose R., 83 NY2d 388, 394). The teaching of cases like Nuccio and Jose R. is that courts should be wary of imposing the harsh remedy of dismissal in the absence of explicit statutory direction.

Even within the confines of CPL 210.20 itself, there are circumstances where the Legislature has made clear its intention that there be a dismissal with prejudice. Subdivision (4), which relates to the consequences of a successful motion to dismiss— not merely reduce — a count in an indictment, expressly states that when the basis for the dismissal of a count is related to immunity, a previous prosecution or untimeliness, the dismissal "constitutes a bar to any further prosecution of such charge or charges, by indictment or otherwise, in any criminal court within the county” (CPL 210.20 [4]). " 'Where a statute describes the particular situations in which it is to apply and no qualifying exception is added, "an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” ’ ” (Matter of Jose R., 83 NY2d at 394 [citations omitted]).

The structure of the statute as a whole further supports our conclusion that failure of the People to act should not result in a bar to prosecution of the reduced count. Both options (b) (resubmission) and (c) (appeal) come with their own specified time limits. CPL 210.20 (6) (b), for example, provides that the People must resubmit "within thirty days of the entry of the order or such additional time as the court may permit upon a showing of good cause.” Similarly, when the People opt to appeal pursuant to option (c), other provisions of the Criminal Procedure Law direct that they do so "within the jurisdictional 30 days specified in CPL 460.10 (1) (a) and (c)” (People v Gega, 151 Misc 2d 70, 73). Option (a), by contrast, which allows the People to simply accept the court’s ruling by filing the reduced indictment, contains no such additional time limitation.

Defendant argues that to allow the prosecution to continue on the reduced indictment notwithstanding the People’s inaction would render superfluous the language in the statute providing that the People "shall” (CPL 210.20 [6]) indicate their acceptance under option (a) "by filing a reduced indictment” (CPL 210.20 [6] [a]). However, in light of the legislative history evidencing strong concerns about protecting the People’s position in plea negotiations, it appears that the purpose of option (a) is to allow the People to go forward on the reduced indictment either by accepting a plea or by proceeding to trial without having to wait for the lifting of the stay. Thus, the People can "waive” their statutory right to the stay (CPL 210.20 [6]) any time after the entry of the reduction order and before the end of the 30-day period simply by filing the reduced indictment. Assuming that the People fail to take any action within 30 days, the court may then order the People to file the reduced indictment, which requires no formal action by the Grand Jury (CPL 1.20 [1]; 200.50 [8]; see also, People v Nunez, 157 Misc 2d 793, 799, supra).

We next reach the question whether, in order to prosecute on the higher count, the People must resubmit the charge within 30 days of the reduction order unless the court, on good cause shown, extends the time. This question we answer in the affirmative.

The People’s argument that option (b) contains no such time limit, and thus no bar to resubmission at any time, is contradicted by the statutory language itself. As noted above, CPL 210.20 is unambiguous: the People must "[rjesubmit the subject count or counts to the same or a different grand jury within thirty days of the entry of the order or such additional time as the court may permit upon a showing of good cause” (CPL 210.20 [6] [b]). Thus, unlike the statute at issue in People v Cade (CPL 190.65), the statute here explicitly imposes a strict time limit on the People’s authority to resubmit (74 NY2d 410, 416).

In order to overcome the 30-day time limit prescribed by option (b), the People rely on a common-law right to freely represent matters to a Grand Jury (see, People v Cade, 74 NY2d at 414). As the court in People v Cade noted, however, the breadth of this power under the common law led to abuses and the Legislature reacted by enacting various provisions in the Criminal Procedure Law which — like the statute at issue here — limited the People’s previously unrestricted right (id.).

The People also cite to CPL 200.80 which states if at any time before entry of a plea of guilty or commencement of trial, another indictment is filed charging a defendant with an offense charged in the first indictment, the first indictment is superseded by the second indictment. They read this language as giving them an absolute right to seek a superseding indictment without court authorization in any case at any time. Nowhere, however, does CPL 200.80, which deals primarily with the legal effect of a subsequently filed indictment upon a previously filed indictment, give the People an unrestricted right to resubmit in every case at any time.

CPL 210.20 provides that in situations where the People’s resubmitted count is again reduced by the court on grounds of evidentiary insufficiency, "such count or counts may not again be submitted to a grand jury” (CPL 210.20 [6] [b]; see also, CPL 190.75 [3]). The People’s interpretation of CPL 200.80 would render this language meaningless. In fact, if CPL 200.80 actually means what the People say it means, then the People would not even be required to make a showing of "good cause” in order to resubmit beyond 30 days. Clearly, then, the general language in CPL 200.80 cannot be read to have the effect of overriding these more specific provisions in CPL 210.20.

We believe the statute was instead intended to strike a balance between counts that have been dismissed, which can be resubmitted only with leave of the court (CPL 210.20 [4]), and counts that have been reduced, which can be re-presented without leave of court within the first 30 days and with the court’s permission thereafter (CPL 210.20 [6] [b]). Surely, dilatory behavior on the part of a prosecutor would constitute a sufficient ground to deny permission to resubmit a previously dismissed count under CPL 210.20 (4). Were we to ignore the clear statutory language imposing a time limit under CPL 210.20 (6) (b), we would not only be upsetting the statute’s delicate balance but also would be undermining the Legislature’s important goal of discouraging delay since a prosecutor would be entitled to resubmit a reduced count at any time after 30 days without having to obtain permission of the court first.

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

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed.

      . At oral argument before this Court, counsel for the People acknowledged that there had been no showing of good cause for additional time to represent at the July 8 hearing; the adjournment was sought solely on the ground that the People were not yet ready for trial.

      . Given the lack of explicit statutory direction as to the consequences of the People’s inaction, the Legislature may wish to revisit the statute to make its intention more plain. We note that the Advisory Committee on Criminal Law and Procedure recommended that CPL 210.20 (6) be amended to “clarify” that “in cases when the prosecution fails to exercise one of its options within 30 days * * *, the order [reducing the indictment] takes effect and the prosecution has an affirmative obligation to amend the indictment on its face [or] file a reduced indictment” (1992 Report of Advisory Comm on Criminal Law and Procedure, reprinted in 1992 McKinney’s Session Laws of NY at 3102-3103). Thus, the proposed amendment would add language at the end of subdivision (6) providing that "If the people fail to exercise one of the foregoing options, the court’s [reduction] order shall take effect and the people shall comply with paragraph (a) of this subdivision.” {Id. at 3104.)
      Though CPL 210.20 was in fact amended last year to conform to the recent death penalty legislation (L 1995, ch 1), the 1995 amendments were not applicable to defendant’s motion to dismiss, decided in 1992, and in any event do not provide a clear answer to the questions before us.