author: Bellacosa, J.

text:
    The People of the State of New York, Respondent, v Carlos Moreno, Appellant.
    Argued October 13,1987;
    decided November 19, 1987

      POINTS OF COUNSEL

      Alan S. Axelrod and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney (Billie Manning and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Bellacosa, J.

A Judge, who during pretrial adjudication acquires information inadmissible before the fact finder of guilt or innocence, is not legally disqualified from conducting a bench trial which defendant chose based on a fully informed waiver of the jury trial right.

Defendant and two accomplices were indicted for offenses arising from a robbery of a Bronx service station during which an attendant was killed. A joint pretrial hearing resulted in a photo array being held inadmissible as unduly suggestive; a lineup identification being held admissible; an independent source basis being found for an in-court identification; and, a confession of one defendant implicating all three being held admissible. On motion, defendant Moreno’s trial was severed from the confessing codefendant’s trial and was consolidated with the other defendant’s. The consolidated case, itself eventually severed also, was then assigned to a different Justice for trial, who first conducted and ruled on Sandoval (34 NY2d 371) matters with respect to defendant Moreno. Moreno’s attorney at one point advised the Trial Justice of the earlier suppressed photo array evidence.

Defendant Moreno then, against the advice of counsel, made an application to waive a jury trial. The court fully explained the pros and cons of jury and nonjury trials and explicitly informed Moreno during an allocution that, as the Judge who had presided at his Sandoval hearing, he would know more than a jury would about his criminal history. Defendant nevertheless duly waived the jury trial.

Moreno’s counsel subsequently indicated he was considering an application that the Trial Justice recuse himself because of his knowledge of Moreno’s criminal history and of the suppressed photo array. On the day the trial was to commence, counsel formally requested that the Trial Justice recuse himself, arguing that his pretrial acquired knowledge undermined the defense of misidentification. The Trial Justice refused, pointing out that Moreno was made aware of the scope of his knowledge during the allocution prior to executing the jury trial waiver, but he nevertheless offered to allow Moreno to withdraw his waiver. Defendant declined.

Moreno was tried nonjury and alone and was convicted of murder in the second degree, assault in the first degree, and attempted robbery in the first degree. At sentencing, he moved to set aside the verdict and for a new trial again on the recusal ground. The motion was denied. The Appellate Division affirmed the judgment of conviction.

Defendant argues that his right to a fair trial was violated because recusal is required to avoid the appearance of impropriety based on the bench Trial Judge’s pretrial acquired knowledge of defendant’s record and of inadmissible evidence of his involvement in the crimes charged.

Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court when the alleged appearance of impropriety arises from inappropriate awareness of "nonjuridical data” (People v Horton, 18 NY2d 355, 362; see also, People v Smith, 63 NY2d 41, 68; People v Patrick, 183 NY 52, 54). When the alleged impropriety arises from information derived during the performance of the court’s adjudicatory function, then recusal could surely not be directed as a matter of law. A court’s decision in this respect may not be overturned unless it was an abuse of discretion (People v Tartaglia, 35 NY2d 918, 919-920; People v Horton, 18 NY2d 355, 362, supra).

Unlike a lay jury, a Judge "by reasons of * * * learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and of making an objective determination” based upon appropriate legal criteria, despite awareness of facts which cannot properly be relied upon in making the decision (People v Brown, 24 NY2d 168, 172). Recognizing this key premise, "it suffices to say that there is no prohibition against the same Judge conducting a pretrial hearing as well as the trial itself’ (People v De Curtis, 63 Misc 2d 246, 249 [App Term], affd 29 NY2d 608 [suppression hearing Justice not disqualified from presiding over nonjury trial]; see also, People v Brown, 24 NY2d 168, supra [Huntley hearing Justice may preside over nonjury trial]; People v Latella, 112 AD2d 324 [Sandoval hearing Judge not disqualified from presiding at nonjury trial]).

Even the court’s appointment of special prosecuting counsel (People v Smith, 63 NY2d 41, 68, supra), prior association with a law firm employed by a party (Corradino v Corradino, 48 NY2d 894, 895), past prosecution of the defendant (People v Tartaglia, 35 NY2d 918, supra; People ex rel. Stickle v Fay, 14 NY2d 683; contra, People v Corelli, 41 AD2d 939), or past professional affiliation in a field specialized in by a party (Matter of Rotwein, 291 NY 116) do not require the disqualification of a Trial Justice.

Yet, this court has noted that it may be the better practice in some situations for a court to disqualify itself in a special effort to maintain the appearance of impartiality (Corradino v Corradino, 48 NY2d 894, 895, supra). Even then, however, when recusal is sought based upon "impropriety as distinguished from legal disqualification, the judge * * * is the sole arbiter” (People v Patrick, 183 NY 52, 54, supra; see also, e.g., People v Bartolomeo, 126 AD2d 375, 391, lv denied 70 NY2d 702 [Kaye, J.]; Matter of Johnson v Hornblass, 93 AD2d 732, 733).

In People v Zappacosta (77 AD2d 928, 930), the Appellate Division noted the presence of an "amalgam of peculiar circumstances” which required recusal despite a recognition of the rule that "there is no general prohibition against the same Judge conducting a bench trial as conducted preliminary hearings on the admissibility of evidence” (id., at 929). The Trial Justice, during the plea allocution of Zappacosta’s codefendant wife, actively elicited information which incriminated Zappacosta. The information was not necessary to taking the wife’s plea, but "constituted information on the ultimate issue of appellant’s guilt which the court, as trier of fact, would not otherwise have had” (id., at 929). In analogizing to the rule which permits an individual who withdraws a guilty plea to request a trial before a different Judge (People v Selikoff, 35 NY2d 227) and noting its sensitivity to avoiding the appearance of partiality, the Appellate Division held in the exercise of its review function that defendant’s recusal motion should have been granted. That exceptional case may not be read to have erected an objective appearance of impropriety test premised on a presumption of irregularity or bias.

Rather, Matter of Johnson v Hornblass (93 AD2d 732, supra) is more to the point, noting that "[i]n the absence of a violation of express statutory provisions, bias or prejudice or unworthy motive on the part of a Judge, unconnected with an interest in the controversy, will not be a cause of disqualification, unless shown to affect the result” (id., at 733).

Insofar as the purportedly prejudicial information in this case was acquired through the court’s performance of its adjudicative responsibilities, the precatory suggestion for recusal as the "better practice” in Matter of Johnson v Hornblass (id.) and in Corradino v Corradino (supra) has no applicability. "The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case” (United States v Grinnell Corp., 384 US 563, 583; see also, Berger v United States, 255 US 22, 31 ["bias or prejudice which can be urged against a judge must be based upon something other than rulings in the case”]).

The radical test defendant advances, equating knowledge acquired as part of pretrial adjudication with an appearance of impropriety thus requiring recusal for bench trial purposes, finds no support in law, ethics or sound policy. It was not an abuse of discretion for the court to deny the recusal motion, so the order of the Appellate Division should be affirmed.

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

Order affirmed.


source: Caselaw Access Project

author: Titone, J.

license: Public Domain

text:
    In the Matter of Frank C., a Person Alleged to be a Juvenile Delinquent, Respondent. Corporation Counsel of the City of New York, Appellant.
    Argued September 9, 1987;
    decided October 13, 1987

      POINTS OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Edward F. X. Hart and Larry A. Sonnenshein of counsel), for appellant.

      Judith Waksberg and Lenore Gittis for respondent.
   OPINION OF THE COURT

Titone, J.

In this juvenile delinquency proceeding under article 3 of the Family Court Act, we are asked to consider whether dismissal of the presentment agency’s petition is mandatory when the statutorily required fact-finding hearing is delayed beyond the time limits delineated in Family Court Act § 340.1 through no fault or dilatory conduct attributable to the presentment agency. Guided by the legislative goal of assuring speedy adjudications for juveniles, we hold that the source of delay is not controlling and that dismissal is required whenever the statutory requirements for commencing a fact-finding hearing are not satisfied.

On June 11, 1984, following respondent’s May 29th arrest in the lobby of the New York County Family Court building, a petition charging him with criminal possession of a controlled substance was filed. Respondent made his initial court appearance on the day the petition was filed and was thereafter released pending a hearing on the charges. On July 11, 1984, respondent’s counsel made an omnibus motion, returnable on July 20, seeking discovery, a suppression hearing and a change of venue. Although the presentment agency responded to the motion and answered "ready for trial” on July 18, 1987, only 37 days after the petition was filed, a variety of circumstances, none of them chargeable to the agency, delayed the commencement of the fact-finding hearing.

Since the court could not immediately decide respondent’s motion, the case was adjourned, first to September 25 and then to November 28, 1984. The court decided the motion and granted the request for a suppression hearing in October, but the hearing did not go forward on the November adjourn date because the court was then involved in another trial. The case was marked "ready and passed” and adjourned, at respondent’s counsel’s request, to January 9, 1985. On that date, the need to replace the newly assigned Judge led to some confusion, requiring another adjournment of six days. Before that six-day adjournment expired, respondent’s counsel made a motion to dismiss on the ground that respondent’s right to a speedy trial under Family Court Act § 340.1 had been violated.

Noting that 217 days had elapsed since the date of respondent’s initial appearance, the court granted respondent’s motion. The court reasoned that "[t]o deny relief in the face of so extended a lapse would render the right to a speedy trial under the Family Court Act wholly illusory, if not meaningless.” In addition, the court specifically rejected the presentment agency’s argument that, by analogy to the detailed time limitations governing adult criminal proceedings (CPL 30.30), dismissal is unwarranted where the presentment agency was at all times ready to proceed and the delays were occasioned by circumstances outside of the agency’s control. The Appellate Division, First Department, affirmed, without opinion, the Family Court’s order of dismissal, and we granted the presentment agency leave to appeal to our court. We now affirm.

Section 310.2 of the Family Court Act, which is analogous to the general speedy trial provision applicable to adult prosecutions (CPL 30.20), provides that "[a]fter a petition [charging delinquency] has been filed, the respondent is entitled to a speedy fact-finding hearing.” In addition, the Legislature has established, in an entirely separate statute, specific time limitations to govern fact-finding hearings (Family Ct Act § 340.1). Under section 340.1, "[i]f the respondent is not in detention the fact-finding hearing shall commence not more than sixty days after the conclusion of the initial appearance”, but the case may be adjourned for "not more than thirty days” on motion of the court or the parties for "good cause shown” (Family Ct Act § 340.1 [2], [3] [a], [b]). The court is required to "state on the record the reason for any adjournment of the fact-finding hearing” (Family Ct Act § 340.1 [4]), and successive motions to adjourn are not permitted "in the absence of a showing, on the record, of special circumstances” (§ 340.1 [4], [5]). Significantly, "calendar congestion” and "the status of the court’s docket or backlog” are expressly excluded as potential "special circumstances” warranting successive adjournments (§ 340.1 [5]).

In this case, there is no contention that there were "special circumstances” or even "good cause” for the successive adjournments that delayed respondent’s fact-finding hearing for some 218 days after the initial appearance on the presentment agency’s petition. Indeed, the adjournments to September 25 and November 28, which together delayed the proceedings for more than three months, were to enable the court to decide what appears to have been a routine omnibus/venue motion. The subsequent adjournment, which added another 42 days to the total delay, was the combined product of the court’s own docket problems and respondent’s counsel’s scheduling difficulties. Thus, it is clear both that the delays were not permissible under the statute and that the presentment agency was not at fault. The only remaining question is whether dismissal of the presentment agency’s petition was an appropriate remedy in light of the absence of any procrastination on the part of that agency.

The presentment agency argues on this appeal that it should not be penalized by dismissal of the petition — a sanction not expressly provided for in Family Court Act § 340.1— since it was not responsible for the delays. More specifically, the agency argues that the principles set forth in CPL 30.30, which governs adult criminal proceedings and focuses only on prosecutorial delays, should be utilized in interpreting and applying Family Court Act § 340.1, since the two provisions are analogous and reference to CPL 30.30 is, in fact, necessary to establish the respondent’s entitlement to dismissal. In support of its position, the agency cites Family Court Act § 303.1, which precludes use of the Criminal Procedure Law provisions in juvenile delinquency proceedings but recognizes that "[a] court may * * * consider judicial interpretations of appropriate provisions of the criminal procedure law to the extent that such interpretations may assist the court in interpreting similar provisions of this article.”

Contrary to the presentment agency’s argument, however, there is no genuine analogy to be drawn between Family Court Act § 340.1 and CPL 30.30. The two statutes superficially resemble each other in that both contain extremely specific time limitations and both were enacted to supplement more general statutory provisions requiring a "speedy” trial or hearing (CPL 30.20; Family Ct Act § 310.2; see, Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 310.2, at 330-333). But the very different language, history and purposes of the two statutes make further analogy between them inappropriate.

The history and underlying purpose of CPL 30.30 are well known. The Legislature enacted the statute in response to a widespread concern that the speedy trial rules adopted by the then-existing Administrative Board were too stringent and would lead to wholesale dismissals (see, People v Worley, 66 NY2d 523, 527; see also, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 30.30, at 148-149). Because of this concern, the Legislature adopted a less draconian measure aimed principally at prosecutorial delays rather than at the larger problem of bringing criminal defendants swiftly to trial (see, People v Sinistaj, 67 NY2d 236, 239; People v Anderson, 66 NY2d 529, 535; People v Worley, supra, at 527; People v Brothers, 50 NY2d 413, 416-417; see also, Bellacosa, Practice Commentary, op. cit., at 148-149). The limited purpose of the statute is directly reflected in the language of its provisions, which contemplate dismissal only when "the people are not ready for trial” within the required time periods (CPL 30.30 [1]). The statute’s narrow goal is also reflected in our decisions, which uniformly hold that delays occasioned by court congestion and other circumstances beyond the prosecution’s control are not cognizable under CPL 30.30 (see, e.g., People v Giordano, 56 NY2d 524 [court congestion]; People v Brothers, supra [court congestion]; People v Hamilton, 46 NY2d 932 [defendant’s unreadiness]).

In contrast, the “speedy hearing” provision at issue here was enacted in 1982 as part of a sweeping overhaul of the procedures governing juvenile delinquency proceedings (L 1982, ch 920 [codified as Family Ct Act art 3; §§ 301.1-385.2]). The purpose of the amendment package as a whole was to reflect the significant changes in the legal rights of juveniles that had occurred since the late 1960’s and to standardize practice throughout the State (Bill Jacket, L 1982, ch 920, Mem in support of A 7974-A; see, Sobie, Introductory Practice Commentary, op. cit., Family Ct Act art 3, at 258-262). Among the most important aspects of the revised procedural rules were the various provisions establishing specific time limitations to govern each stage of the proceeding from arrest through final disposition (see, e.g., Family Ct Act §§ 307.1, 308.1, 320.2, 332.1, 340.1, 350.1; see also, Sobie, Practice Commentaries, op. cit., at 261-262, 330-331). The stated purpose of these provisions was to assure swift and certain adjudication at all phases of the delinquency proceeding (see, Bill Jacket, op. cit., Mem in support of A 7974-A), a concern which we recognized in People ex rel. Guggenheim v Mucci (32 NY2d 307).

Viewed in this light, section 340.1 leaves no room for the contention that delays outside of the presentment agency’s control should not provide a basis for the remedy of dismissal. Unlike CPL 30.30, Family Court Act § 340.1 is a true "speedy trial” provision, in that both its language and its underlying purpose are directed toward bringing the accused juvenile to trial within a specified 60- to 90-day period (barring "special circumstances”). Indeed, the legislative decision expressly to preclude "court congestion” and other docket problems as permissible grounds for successive adjournments furnishes a clear indication that in adopting section 340.1 the Legislature meant to address all of the sources of delay within the system and not just those connected with the presentment agency. Moreover, the fact that the Legislature enacted the statute despite the concerns expressed by some regarding the undue burden its strict time limitations would impose on the Family Court system (see, Bill Jacket, L 1982, ch 920, Mem of Office of Court Administration; Mem of Association of Judges of Family Court of State of NY) strongly suggests that the Legislature weighed all of the competing considerations and found the goal of speedy resolution of charges against juveniles to be paramount.

Finally, although the appellant presentment agency argues otherwise, it is not necessary to "borrow” the remedy provided for in CPL 30.30 in order to conclude that a violation of Family Court Act § 340.1 must lead to dismissal. While no specific provision for dismissal is made in the statute (cf., Family Ct Act § 332.1 [8] [contemplating dismissal as a remedy for violation of Family Ct Act § 310.2’s general speedy hearing requirement]), the statute’s specific and mandatory language, as well as its precise deadlines and clear legislative history, lead to the conclusion that the Legislature did not intend to leave the sanction for noncompliance to the Family Court’s discretion. Rather, a holding mandating dismissal of the charges seems necessary to effectuate the legislative goal of prompt adjudication and to ensure consistency in the statute’s application.

This is not to suggest that section 340.1 automatically requires dismissal in all cases in which the 60-day time limitation genuinely cannot be met. To the contrary, the Legislature built a degree of flexibility into the statute by providing for adjournments in the event of "good cause shown” or "special circumstances.” Since the parties in this appeal have not claimed that these statutory tests for permissible adjournments were satisfied here, we do not consider the precise scope of these terms. We note, however, that whether a particular event or set of events constitutes "good cause” or "special circumstances” — obviously, a more stringent standard —is a matter that must be decided on a case-by-case basis, with due regard to the stated legislative goal of prompt adjudication. Requests for adjournments should always be considered in light of the statutory standards, and the court’s conclusions should be stated briefly on the record so that the propriety of various delays can later be assessed by a reviewing court (see also, Family Ct Act § 340.1 [5]).

In this instance, some 218 days elapsed since the date of respondent’s initial appearance without a fact-finding hearing having been held. Inasmuch as the adjournments were not based on any claimed "good cause” or "special circumstance,” the trial court correctly dismissed the petition. Accordingly, the order of the Appellate Division, which affirmed the trial court’s dismissal order, should be affirmed.

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

Order affirmed, without costs.


author: Per Curiam.

text:
    In the Matter of Ernest J. Conti, a Justice of the Amsterdam Town Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued October 6,1987;
    decided October 22, 1987

      POINTS OF COUNSEL

      Robert J. Krzys for petitioner.

      Gerald Stern, Jean M. Savanyu and Henry S. Stewart for respondent.
   OPINION OF THE COURT

Per Curiam.

Petitioner was charged with misconduct in connection with the disposition of two speeding tickets. Additionally, he was charged with having improperly dismissed, or adjourned in contemplation of dismissal, some 31 cases without having given notice to the prosecutor as required by CPL 170.45, 170.55 and 210.45. Following a hearing in which petitioner and a number of other witnesses gave testimony, the Judicial Conduct Commission sustained the charges and found that the proven acts of misconduct had been exacerbated by petitioner’s patently false explanations for his actions. Noting that "[s]uch deception is antithetical to the role of a judge who is sworn to uphold the law and seek the truth”, the Commission determined that petitioner should be removed from judicial office. We agree that petitioner’s conduct demonstrated a level of dishonesty and lack of judgment that is unacceptable for a member of our State’s judiciary. Consequently, we accept the determined sanction of removal.

Initially, we reject petitioner’s contention that the ticket-fixing charges were not convincingly established by the hearing evidence. With regard to the speeding ticket issued to John Reedy, the son of a former Town Justice with whom petitioner was acquainted, the testimony of petitioner’s co-Justice, as well as that of the issuing officer and the court clerk, lead inexorably to the inference that petitioner, or someone acting at his direction, had altered the simplified traffic information by crossing out the speeding charge and substituting an "unsafe tire” charge. Petitioner then dismissed the ticket himself, without notice to the prosecution, even though the case was not properly before him because the ticket was not returnable on a day when petitioner was presiding. In view of the impressive evidence against him, we find incredible petitioner’s claims that the ticket had been delivered to his house by the issuing officer after the cross-outs and alterations had already been made and that he had innocently dismissed the "unsafe tire” charge — the only count in the accusatory instrument — after being assured by the defendant Reedy that the condition had been repaired.

Similarly lacking in candor is petitioner’s explanation of his dismissal, again without notice to the prosecution, of a speeding ticket issued to a local attorney, who was petitioner’s friend and was then representing petitioner on two personal matters. Petitioner testified that he perceived no impropriety in his handling the matter despite his relationship with the attorney, because the officer who issued the ticket had told him that the ticket would have to be dismissed as a result of a radar failure. However, the officer testified, quite credibly, that there was no radar failure on the day the attorney’s ticket was issued and that he had not contacted petitioner at any time to suggest dismissal of the ticket.

We have previously held that ticket-fixing is such a serious impropriety that even a single isolated incident can serve as a basis for removal (Matter of Reedy, 64 NY2d 299), although there is no per se rule requiring removal in every case (see, Matter of Edwards, 67 NY2d 153, 155). Here, as the credible evidence shows, petitioner not only "fixed” speeding tickets on two separate occasions, but he also compounded his offense by his dishonesty in altering one of the tickets and then telling a patently false story when called upon to explain his conduct to the Commission. As yet a further aggravating circumstance, petitioner demonstrated an unacceptable degree of insensitivity to the demands of judicial ethics when he asserted his view that he could properly adjudicate his personal attorney’s traffic violation case because a dismissal of the charges was anticipated. Indeed, even if it were true that the speeding ticket issued to petitioner’s attorney had to be dismissed because of a problem with the radar, petitioner’s decision to handle the matter himself evidenced a serious lack of judgment, since it led to both an appearance of impropriety and the potential for a conflict of interest.

Accordingly, the determined sanction of removal is accepted, without costs.

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

Determined sanction accepted, without costs, and Ernest J. Conti is removed from his office of Justice of the Amsterdam Town Court, effective immediately.


author: Simons, J.

text:
    The People of the State of New York, Respondent, v Suzette Scott, Appellant.
    Argued October 15, 1987;
    decided November 19, 1987

      POINTS OF COUNSEL

      Edward J. Nowak, Public Defender (Yolanda Villa of counsel), for appellant.

      Howard R. Relin, District Attorney (Melvin Bressler of counsel), for respondent.
   OPINION OF THE COURT

Simons, J.

Defendant, a black prostitute, was charged with murdering and robbing a white customer, a retired Rochester police officer. She claimed at trial that she acted in self-defense when decedent attacked her with a knife because she failed to satisfy him. The jury found her guilty of manslaughter, first degree, and grand larceny, third degree, and the court sentenced her to a 7- to 21-year prison term on the manslaughter count with a lesser concurrent sentence for the larceny.

Defendant contends the conviction may not stand because at trial her counsel established an unrebutted prima facie case that the prosecution had used its peremptory challenges to systematically exclude blacks from the jury for discriminatory purposes (see, Batson v Kentucky, 476 US 79). We agree and, therefore, reverse the order of the Appellate Division.

I

At the time of defendant’s trial and appeal to the Appellate Division, the applicable law on the use of peremptory challenges for discriminatory purposes was found in Swain v Alabama (380 US 202). In Swain, the Supreme Court held that prosecutors are presumed to exercise their peremptory challenges in a nondiscriminatory manner and that the presumption is not overcome by establishing that the prosecutor excluded persons of defendant’s race from defendant’s petit jury. The presumption could only be rebutted if the accused established the prosecution systematically excluded minorities from juries over a period of time. We followed the Swain rationale in People v McCray (57 NY2d 542).

While defendant’s appeal was pending before this court, the Supreme Court reexamined the Swain rule in Batson v Kentucky (476 US 79, supra), and recognized that the rule was placing a crippling burden on defendants and rendering the use of peremptory challenges for discriminatory purposes immune from attack. Accordingly, the court overruled Swain in part, holding that a finding of purposeful discrimination could be based solely upon the prosecutor’s exclusion of racial minorities in a single case. Under Batson, to establish prima facie that the prosecutor discriminated in selecting the jury, a defendant must show (1) that he or she is a member of a cognizable racial group and that the prosecutor exercised peremptory challenges to remove venire members of defendant’s race from the jury and (2) facts and other relevant circumstances sufficient to raise an inference that the peremptory challenges were used for discriminatory purposes. Defendant, in establishing a prima facie case, may also rely on the proposition that peremptory challenges permit discrimination by those inclined to discriminate. Once defendant makes a prima facie showing of discrimination, the burden shifts to the prosecution to come forward with a neutral explanation for the use of its challenges. The prosecution cannot rebut defendant’s prima facie case, however, by merely alleging its good faith or by a claim that the stricken jurors would be biased because they shared the defendant’s race (id., 476 US, at 96-98).

In Griffith v Kentucky (479 US 314), the Supreme Court declared that Batson applied retroactively to all pending direct appeals (cf., People v Ford, 69 NY2d 775).

II

With this legal background we turn now to the facts in defendant’s case. After the jury was empaneled but before the trial commenced, defense counsel moved for a mistrial contending the prosecution used its peremptory challenges to systematically exclude blacks from the jury. There is no transcript of the voir dire, but the facts on which defendant relied are set forth extensively in the colloquy before the court during defendant’s motion.

The venire of potential jurors for defendant’s trial contained five blacks. The prosecutor excluded all five from the petit jury by exercising peremptory challenges. In moving for a mistrial, defense counsel noted that "if they were white, [they] would be the exact type of people that any District Attorney would want to have on [his] jury, and they have been * * * excluded [solely because of] the color of their skin.” He then recited the background of each black juror, stating that the first one excluded by the trial assistant had "attended two colleges” and was a "very articulate man”; he had strong religious affiliations and was employed as a bus driver. The second juror peremptorily struck by the prosecutor was a woman who was a college graduate and presently teaching nursery school. Counsel described both of these prospective jurors as "exhibiting absolutely no prejudices one way or the other.”

Defense counsel voiced even stronger objections to the prosecutor’s strike of the third, fourth and fifth prospective black jurors. The third black member of the venire was a woman who had relatives on the Rochester police force. Puzzled by the trial assistant’s decision to exclude her, defendant’s lawyer noted she was the type of juror a defense attorney — not the prosecutor — would want stricken from the jury in a case where the victim was a retired police officer. The fourth prospective black juror, a woman, was a college graduate who worked at the Rochester Psychiatric Center. Her brother-in-law had been "killed as the result of an assault.” Defense counsel suggested that any bias she might have would favor the victims of violent crime, and thus the prosecution, not the defendant. The fifth black juror removed by the prosecutor was a woman who had graduated from college and had two grown children who were college students. She worked as a school nurse, had been exposed to unfavorable pretrial publicity regarding the case and had several associations with Rochester police officers. Defense counsel maintained that if these three jurors were prejudiced in any way, they were "prosecution oriented.”

The People did not dispute counsel’s statements, offer additional facts, or try to explain the strikes. Rather, they contended the motion was untimely and that under the Swain-McCray rules the evidence of discrimination was insufficient.

The trial court denied the motion, basing its ruling on our decision in People v McCray (57 NY2d 542, supra). The court noted, however, that if McCray had not superseded the Second Department’s decision in People v Thompson (79 AD2d 87), defendant "probably” had demonstrated enough to establish a prima facie case of discrimination. The Thompson decision held that under New York’s Constitution a finding of discrimination could be based upon the prosecutor’s conduct in a single case if a "substantial likelihood” existed that prospective jurors had been stricken solely because of their race. The Thompson "substantial likelihood” test placed a heavier burden on defendants than the "mere inference” test ultimately adopted in Batson.

¡II

Defendant’s mistrial motion, made after the jury was selected but prior to trial, was timely (see, Batson v Kentucky, supra, 476 US, at 82-83; People v James, 132 AD2d 932; People v Howard, 128 AD2d 804; People v. Hockett, 121 AD2d 878) and the court’s denial of it raises a question of law for this court, whether defendant’s claim of discrimination was sufficient under present rules.

Applying the Batson test to the facts of this appeal, defendant established a prima facie claim that the prosecution used its peremptory challenges to exclude blacks from her petit jury. First, defendant, a black woman, was charged with murdering and robbing a white man. There were five prospective black jurors on the venire and the prosecutor excluded them all from the jury by exercising peremptory challenges. Additionally, defendant showed that the blacks were a heterogeneous group which included different sexes, different occupations and different social backgrounds. None of the jurors exhibited signs of bias favoring defendant. To the contrary, their backgrounds and knowledge of the case suggested that any bias they might have would favor the prosecution. Under the circumstances, the prosecutor’s " 'pattern’ of strikes against black jurors [gave] rise to an inference of discrimination” (Batson v Kentucky, supra, 476 US, at 96-98), more specifically, the inference that he challenged the "potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant” (id., 476 US, at 89-91). Indeed, as we read the transcript of the colloquy before the trial court and the Judge’s comments about People v Thompson (79 AD2d 87, supra), it appears that he would, given the lighter burden required of defendants by present law, share our view.

Inasmuch as defendant has established a prima facie case of discrimination and the People have yet to proffer a neutral explanation for the manner in which the trial assistant exercised his peremptories, the conviction cannot be affirmed. Under different circumstances, we would remit the matter for a hearing at which the People could offer an explanation for the pattern of strikes against black members of the venire (see, Batson v Kentucky, supra, 476 US, at 100; see also, People v James, 132 AD2d 932, supra; People v Howard, 128 AD2d 804, supra; People v Hockett, 121 AD2d 878, supra; cf., People v Wilson, 126 AD2d 970). A hearing is inappropriate in this case, however, because of the absence of a record and the impossibility of securing one. Over four years have elapsed since defendant’s trial and the Judge who presided no longer sits in County Court. The memories of the other participants of this preliminary stage of the trial have undoubtedly faded and an accurate reconstruction of the untranscribed jury selection proceeding and reliable findings based upon the conduct of the voir dire is therefore virtually impossible (see, People v McCray, 57 NY2d 542, 556, n 5 [Meyer, J., dissenting], supra; see also, People v Thompson, 79 AD2d 87, 111, n 22, supra). The order of the Appellate Division must be reversed and the judgment of County Court vacated.

The indictment charged defendant with two counts of murder, second degree, two counts of robbery, first degree, and one count of grand larceny, third degree. She was acquitted of the robbery charges and convicted of manslaughter, first degree, as a lesser included charge of the murder charges, and grand larceny, third degree.

Accordingly, the order of the Appellate Division should be reversed, a new trial ordered on the grand larceny, third degree, charge, and the remaining counts of the indictment dismissed without prejudice to the People’s resubmission of the manslaughter charge to another Grand Jury if so advised (see, People v Nieves, 67 NY2d 125, 136; People v Mayo, 48 NY2d 245, 253).

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Hector Lourido, Also Known as Carlos Rodriguez, Appellant.
    Argued October 6, 1987;
    decided November 24, 1987

      POINTS OF COUNSEL

      Lynn W. L. Fahey and Philip L. Weinstein for appellant.

      John J. Santucci, District Attorney (Michael O’Brien of counsel), for respondent.
   OPINION OF THE COURT

Bellacosa, J.

A detective may not be permitted to testify that a person being investigated and queried about the commission of a crime, who was not shown to understand English, responded with a high shrug of the shoulders. Comment by the prosecutor in summation compounded the prejudicial inferences of guilt which the jury was allowed to draw from this gesture. Further, in a rape case where the accused and the victim knew one another and consent was in issue, it is reversible error to instruct the jury on both an original and an amended version of a statute prescribing the quantum of force required, leaving the jury to select on its own the one to be applied. Finally, the failure of the court over a period of three hours to satisfy the jury’s request for a readback of the victim’s cross-examination and the court’s acceptance of a verdict without an inquiry as to whether that unsatisfied request had any continuing relevance for the jury was also reversible error. These serious errors compel a reversal and a new trial.

When the victim had a child, her aunt, with whom defendant roomed, arranged to have defendant assume the victim’s nightly job of cleaning a union hall. Three months later when the victim returned to her job, she and defendant agreed to share the work and the wages, which they did for one week. Then, one evening, upon the completion of the cleaning chores, defendant propositioned the victim. She declined his overtures. There is evidence that defendant forced the victim, whose infant was with her, to submit to oral and vaginal intercourse at the work site. The victim eventually convinced defendant that they should leave and, once on the street, she sought and received assistance. After undergoing medical examination and providing the police with a statement, the victim showed the police where defendant lived.

On the People’s direct case, one of the arresting officers testified that they approached defendant at the victim’s aunt’s house but it was very difficult to converse with him; defendant indicated he did not speak English well. At trial, defendant required the assistance of an interpreter. The officer also testified, over objection, that when defendant was told of the nature of the accusation against him, he responded with a high shrug of his shoulders.

Lourido was indicted for rape in the first degree, sodomy in the first degree, and endangering the welfare of a child. At trial, he asserted the defense of consent. The victim testified to the facts of the sexual assault. On cross-examination, she admitted that she had known defendant for months while on direct examination she had stated they did not meet until they began working together. She testified that before trial she had attempted to withdraw the charges. In rebuttal, the defense established that the victim’s medical examination indicated recent intercourse but no evidence of force. On recall, the two police officers testified that the victim did not mention being forced to commit sodomy even when specifically questioned on the topic.

In summation, the prosecutor accented the defendant’s bodily reaction upon initial interrogation and arrest and characterized the shrug, over objection, as "an indicator of the defendant’s having committed the crimes charged”.

The court’s instruction first defined the forcible element of rape as compulsion by either use of physical force or a threat, express or implied, which places a person in fear of her or another’s immediate death, injury or kidnapping. That definition was based on the amended statute as of the time of trial. The tougher prosecutorial burden in this respect which existed at the time of the crime was not mentioned. Both trial counsels pointed this error out to the court. The defense attorney objected specifically that his client was subjected to an ex post facto application and requested the court to instruct the jury to disregard the earlier charge and apply the correct one. The jury was subsequently instructed: "Ladies and gentlemen of this jury, it has been brought to my attention that his act occurred on May 18, 1983. However, the definition that I gave you as regards forcible compulsion became a law on July 15, 1983. Now I am going to give you the definition of 'forcible compulsion’ as it existed in May”. The definition at the time of the offense, more favorable to the defendant, required force which is capable of overcoming earnest resistance or a threat expressed or implied that places a person in fear of her or another’s immediate death, injury, or kidnapping. The court at no time told the jury to disregard the erroneous previous instruction and left them to fend for themselves based on the above-quoted portion.

During deliberations, the jury requested a readback of the victim’s cross-examination and the cross-examination testimony of the two police officers who interrogated the victim. While the requested testimony was being searched for by the court reporter, some three hours after the request, the jury sent word it had reached a verdict. The defense objected that the jury had been allowed to continue to deliberate during the time that the readback request was pending and asked the court to inquire whether the jury wanted the requested sections of cross-examination testimony read before delivering the verdict. The court denied the application, made no inquiry of the jury, and accepted its verdict finding the defendant guilty of rape in the first degree but acquitting him on the charges of sodomy and endangering the welfare of a child.

The Appellate Division affirmed the judgment of conviction (124 AD2d 598). It reasoned that evidence of the "high shrug” was admissible as a demonstrative act evincing the defendant’s state of mind, citing two precedents, Greenfield v People (85 NY 75) and Linsday v People (63 NY 143). The forcible compulsion charge was held adequate because it was implicit in the introductory remark that the subsequent definition should be applied. Finally, that court held that defendant was not prejudiced by the failure to comply with the readback request since it was apparent that the jury sought the read-back to resolve questions regarding the alleged acts of sodomy and endangering the welfare of a minor and he was acquitted on each of these charges.

Defendant argues that the use of the testimony and the summation comment of the prosecutor regarding the shoulder shrug violated his rights; that the court’s varying instructions on forcible compulsion constituted reversible error; and that the court should not have allowed the jury to continue to deliberate and should not have accepted the jury verdict without providing a readback of the requested testimony.

An individual’s reaction to a police officer’s accusatory query is inadmissible as evidence of guilt, state of mind or as a demonstrative act unless at the threshold the People demonstrate that the person heard the assertion and comprehended its implications.

Declarations or demonstrative acts in response to an accusatory or inculpatory assertion, made in the presence of the accused, which may be otherwise inadmissible on constitutional or Miranda (384 US 436) grounds, may nevertheless be received into evidence in certain instances but only for the limited purpose of establishing a relevant demonstrative response of the affected party (People v Cascone, 185 NY 317, 324). In People v Cascone (supra), the victim’s deathbed statement, written in Italian in response to a question asked in Italian, was shown to the defendant. We held the statement and Cascone’s demonstrative response of shrugging his shoulders inadmissible. Applying People v Kennedy (164 NY 449, 456) and People v Smith (172 NY 210, 232) on the admissibility of an accused’s silence in the face of an inculpatory statement made in his presence, the court in Cascone reasoned that since it was not shown that the defendant knew and fully comprehended the effect of the question asked or the written answer, the victim’s answer was incompetent for the purpose of establishing a foundation upon which to show the defendant’s demonstrative response (People v Cascone, supra, at 329-330).

Contrast this with People v Ferrara (199 NY 414), where we held that an accomplice’s declaration "[tjhat’s the man that done the cutting” (id., at 430) and defendant’s shoulder shrug response were admitted because defendant Ferrara heard the statement from a few feet away, understood the import of the words, and was in no way prevented from responding (id., at 430). The evidentiary rule which has evolved is that an accused’s response to an accusatory statement or declaration cannot be deemed an "admission if the accusation was made in a language he did not understand and if he did not know that he was being accused” (People v Lewis, 238 NY 1, 5; see also, Annotation, 87 ALR3d 706, 717; Fisch, New York Evidence §§ 792, 794 [2d ed 1977]; McCormick, Evidence § 270, at 800-801 [3d ed 1984]).

In the instant case, the interrogating officer admitted he could not say that defendant understood him; yet, he was permitted to describe defendant’s reaction which was, at best, equivocal. This description of defendant’s reactive gesture was inadmissible because no proper foundation was established. We need go no further in this case to decide whether, as defendant urges, the reaction could be inadmissible as being the equivalent of silence (see, e.g., People v Rutigliano, 261 NY 103).

Moreover, the prosecutor’s summation comment on the shrug, characterizing it as an indicator of defendant’s guilt, compounded the serious error in admitting the "evidence” at all (People v Christman, 23 NY2d 429; see also, People v Dawson, 50 NY2d 311, 319; contrast, People v Davis, 61 NY2d 202 [prosecutor’s comment allowed when defendant puts post-arrest silence into issue]).

The initial jury charge on forcible compulsion defined that element of the crime charged as it existed at the time of trial. "Statutes that change the rules of evidence so as to require a lesser amount of evidence or evidence of different facts in order to convict are ex post facto” in nature (People v Nival, 33 NY2d 391, 396). The trial court’s attempted corrective charge of the higher standard of forcible compulsion did not cure the error because the jury was not told to disregard the earlier erroneous charge and to apply only the subsequent correct charge. Being left on their own to choose constituted reversible error as it affected the central issue of consent versus compulsion. "[T]he charge on the law concerning that subject should have been clear and unambiguous. Instead, it was contradictory and must have been perplexing and confusing to an attentive juror. Despite the fact that it was inadvertent, such a mistake in charging the law * * * necessitates a reversal of the judgment of conviction” (People v Kelly, 302 NY 512, 517; see also, People v Young, 65 NY2d 103, 109).

. [3] The trial court’s failure to provide the requested read-back of relevant cross-examination testimony of the victim before accepting the jury’s verdict capped this unfortunate conglomeration of errors. "Not every failure to comply with a jury’s request for information during deliberation is reversible error. (People v. Miller, 6 N Y 2d 152, 156; People v. La Marca, 3 N Y 2d 452, 461.) The test is whether the failure to respond seriously prejudiced the defendant. (People v. Jackson, 20 N Y 2d 440, 454-455; People v. Cooke, 292 N. Y. 185, 188.)” (People v Bauer, 32 AD2d 463,. 475, affd 26 NY2d 915.) While CPL 310.30 allows the court discretion in responding to a jury request, the court "must respond meaningfully to the jury’s inquiries” (People v Almodovar, 62 NY2d 126, 131, citing People v Malloy, 55 NY2d 296, 301; People v Gonzalez, 293 NY 259, 262). In this case, the court’s response was not meaningful because it was no response at all. It seriously prejudiced the defendant because of the nature of the charges and the intertwined issues.

Each of the errors in this case supports reversal; taken together, they compel this outcome.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

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

Order reversed, etc.


author: Chief Judge Wachtler.

text:
    In the Matter of Steven M. Berenhaus, Respondent, v Benjamin Ward, as Police Commissioner of the City of New York, et al., Appellants. In the Matter of Richard Farry, Respondent, v Benjamin Ward, as Police Commissioner of the City of New York, et al., Appellants.
    Argued October 12,1987;
    decided November 17, 1987

      POINTS OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Susan B. Elsen and Leonard Koerner of counsel), for appellants in the first above-entitled proceeding.

      Raymond E. Kerno for respondent in the first above-entitled proceeding.

      Peter L. Zimroth, Corporation Counsel (Paul Marks and Leonard Koerner of counsel), for appellants in the second above-entitled proceeding.

      Carol Mellor and Joseph Fallek for respondent in the second above-entitled proceeding.
   OPINION OF THE COURT

Chief Judge Wachtler.

Petitioners in these article 78 proceedings, both members of the New York City Police Department, were dismissed from the force following separate departmental disciplinary hearings. In each case, the findings of misconduct rested on the testimony of Thomas Peteroy, a fellow police officer who, all involved agree, was a "rogue cop” with a sordid history of thievery and extortion, and who claimed to have been an accomplice in the corrupt acts which led to the charges against the petitioners.

In separate opinions, the Appellate Division granted the petitions challenging the determinations, finding that the determinations of guilt were not supported by substantial evidence because Peteroy’s testimony was uncorroborated (Matter of Farry v Ward, 126 AD2d 7; Matter of Berenhaus v Ward, 118 AD2d 196). We granted leave in both cases (Matter of Farry v Ward, 69 NY2d 612; Matter of Berenhaus v Ward, 69 NY2d 603) to consider the extent to which the rule requiring corroboration of accomplice testimony in criminal proceedings (see, CPL 60.22) applies in administrative hearings — specifically police disciplinary matters — involving charges of misconduct of a criminal nature. We conclude that corroboration is not required in such proceedings, and accordingly, the judgments of the Appellate Division should be reversed and the petitions dismissed.

It is unnecessary to repeat the detailed recital of the facts contained in the opinions below. It is sufficient to note that Officer Berenhaus was accused by Officer Peteroy of having solicited and accepted from Peteroy a quantity of marihuana from a large inventory of the substance that had been seized as evidence. Peteroy’s testimony, if true, established that, as charged, Officer Berenhaus had appropriated evidence for his own use and possessed a quantity of a controlled substance. Officer Berenhaus denied the charges and sought to establish that he and Peteroy were not on good terms, having argued and exchanged insults several times during the 10 years that they both worked at the 10th Precinct. During his more than 15 years on the force, Berenhaus had earned an unblemished disciplinary record and numerous awards and commendations.

Sergeant Farry was accused by Peteroy of having stolen auto parts during an investigation of a burglary at an automobile dealership. Peteroy testified that he also participated in the theft and later arranged for Farry to sell the stolen items. If true, Peteroy’s testimony established that, as charged, Sergeant Farry possessed stolen property and, being aware that other police officers removed property from the burglary scene, failed to take proper police action. Sergeant Farry acknowledged his participation in the burglary investigation but denied that he had stolen any property. At the time of the hearing, Sergeant Farry had served on the force for approximately 15 years with only one minor mark on his disciplinary record and, like Berenhaus, had earned several awards and commendations.

Officer Peteroy demonstrated by his own admissions at the hearings that he was an unsavory character who capitalized on every opportunity to benefit himself through corruption. The litany of misdeeds he acknowledged included the practice of taking protection money from after-hours clubs in the precinct, which resulted, in 1982, in his indictment for violations of the Hobbs Act (see, 18 USC § 1951). Peteroy agreed to cooperate with the Federal authorities in exchange for the opportunity to plead to a lesser offense. Despite his eventual guilty plea to a Federal felony charge, he was retained on the police force on "modified assignment” in the Internal Affairs Division, where he acted as an informant. His accusations against Officer Berenhaus came to light as Berenhaus was about to testify on behalf of another police officer who was being prosecuted by the United States Attorney. The prosecutor asked Peteroy for information about Berenhaus that could be used to impeach his testimony, and Peteroy obliged by telling the prosecutor about the alleged marihuana transaction. Although Berenhaus denied the charges when questioned by the prosecutor, the departmental charges now under review were subsequently filed and tried.

Peteroy’s accusations against Sergeant Farry were first made to a detective in the Internal Affairs Division when Peteroy was asked by the detective whether he had any knowledge of misconduct by officers in the 10th Precinct. Peteroy’s story prompted the charges filed against Farry.

After separate hearings, at which Peteroy was the chief departmental witness, the Assistant Commissioner of Trials (ACT) recommended that both officers be found guilty as charged and dismissed from the Department. In both cases he concluded that the determination of guilt depended squarely on whether Peteroy or the accused officers had told the truth at the hearings. While acknowledging that "Peteroy can only be characterized as a 'rogue cop’, who long ago gave up any intention to honor his duty to enforce the law”, the ACT nevertheless found Peteroy’s testimony credible. In making this assessment, the ACT considered Peteroy’s demeanor, whether his cooperation with Federal authorities may have motivated him to fabricate the charges, his history of corruption, and whether he may have been motivated by animosity toward the officers he accused. In addition, in the case of Farry, he found that Peteroy’s testimony was corroborated by evidence that the items described by Peteroy were, in fact, missing from the car dealership and evidence that a burglar alarm had been tripped in the parts department at the time the officers were allegedly in that part of the car dealership premises.

With respect tó the penalty to be imposed, the ACT noted the exemplary service records of both officers, but recommended dismissal because of the serious nature of the misconduct proved.

The Police Commissioner approved the ACT’s findings and recommendations and dismissed both Berenhaus and Farry. The officers then commenced these separate article 78 proceedings seeking to annul the Commissioner’s determinations on the grounds that the findings of guilt were not supported by substantial evidence (see, CPLR 7803 [4]) or, in the alternative, that the penalties imposed were excessive (see, CPLR 7803 [3]). Upon transfer from Supreme Court (CPLR 7804 [g]), the Appellate Division granted both petitions and annulled the determinations. The court found no basis in either case for the ACT’s decision to credit Peteroy’s testimony and held that, in cases such as these, involving charges of criminal conduct leveled by an accomplice with a past as riddled with dishonesty as Peteroy’s, there must be corroboration of the accomplice’s testimony, along the lines of that required by CPL 60.22. Finding no such corroboration and disagreeing with the ACT’s assessment of the factors informing his credibility determinations, the court held that the Commissioner’s determinations were not supported by substantial evidence. In addition, in the Berenhaus case, the court opined that, even if the charges had been substantiated, the penalty of dismissal was excessive in light of Officer Berenhaus’s fine record.

We begin our analysis by accepting, for purposes of the discussion, that Peteroy was an accomplice as that term is defined in CPL 60.22 and that his testimony was not corroborated in either case. In addition, we agree with the Appellate Division that Peteroy’s testimony presented the kinds of dangers that the accomplice corroboration rule recognizes and seeks to avoid. The rationale underlying the rule is that "accomplices may themselves be persons of disrepute, lacking the normal indicia of reliability” and, having participated in the criminal conduct, "may have purchased a reduced exposure to criminal liability by promising to implicate others” (People v Daniels, 37 NY2d 624, 629; see, People v Hudson, 51 NY2d 233, 238). Officer Peteroy’s history and his cooperation with Federal authorities and with the Internal Affairs Division fully implicated these concerns in both cases.

It is evident, however, that CPL 60.22 is limited in its application to criminal prosecutions and does not by its terms apply to police disciplinary hearings. The question posed by these appeals is whether, in these circumstances, given the recognized dangers of accomplice testimony, corroboration is nevertheless required in order for the determinations to be supported by "substantial evidence.”

Substantial evidence has been defined as " 'such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’ ” (People ex rel. Vega v Smith, 66 NY2d 130, 139, quoting 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180). Here, the testimony of Officer Peteroy, if true, established all of the facts necessary to sustain the charges against Berenhaus and Farry. In both of these cases, the Hearing Officer, after a full consideration of many factors, including Peteroy’s character and possible self-interest, decided to credit his testimony and reject that of the petitioners. In our view, those credibility determinations are unassailable and the testimony thus credited provided substantial evidence for the determinations under review.

It is basic that the decision by an Administrative Hearing Officer to credit the testimony of a given witness is largely unreviewable by the courts, who are disadvantaged in such matters because their review is confined to a lifeless record. The Hearing Officer before whom the witnesses appeared, on the other hand, was able to perceive the inflections, the pauses, the glances and gestures — all the nuances of speech and manner that combine to form an impression of either candor or deception. For this reason, and because of statutory and, in our case, constitutional constraints on the courts’ fact-finding powers (see, Matter of Pell v Board of Educ., 34 NY2d 222, 230), "[w]here there is a conflict in the testimony produced * * * where reasonable men might differ as to whether the testimony of one witness should be accepted or the testimony of another be rejected, where from the evidence either of two conflicting inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists” (Matter of Stork Rest. v Boland, 282 NY 256, 267, quoted in Matter of Collins v Codd, 38 NY2d 269, 270-271).

The concerns underlying the corroboration requirement— the possibility of self-interested or gratuitous fabrication — are, quite plainly, concerns about credibility. These concerns are relevant in the administrative tribunal and should be taken into account by the fact finder, as should any other factor that casts doubt on the veracity of a witness. But we find no reason to import from the rules of evidence governing criminal proceedings the additional requirement that accomplice testimony be corroborated.

If the Hearing Officer has recognized the dangers and nevertheless found the accomplice’s testimony worthy of belief, then the concerns which gave rise to the corroboration rule should abate. A demand for more can only reflect an unwarranted distrust of the Hearing Officer’s ability to assess the relevant factors and would breach the statutory constraints imposed upon our review of administrative determinations (see, CPLR 7803).

Matter of Evans v Monaghan (306 NY 312), a case cited by the Appellate Division, supports our conclusion, despite the effort made in that case to find evidence lending credence to the accomplice’s testimony. In upholding the determination of the Police Commissioner in Evans, we stated that section 399 of the Code of Criminal Procedure (the predecessor to CPL 60.22) did not apply to police disciplinary hearings (id., at 319). Although we also noted that the considerations upon which the rule is based should not be ignored in such hearings, it is significant that our conclusion that the accomplice’s testimony was worthy of belief rested largely, not on the presence of independent corroborative evidence, but rather on the detailed nature of the accomplice’s own testimony (id., at 320-321). We acknowledged that such evidence "may not amount to corroborative evidence * * * to the extent required by section 399” (id., at 319) but found it sufficient nonetheless. Evans is therefore consistent with our position that, although accomplice testimony should be examined with the purposes of the corroboration requirement in mind, a Hearing Officer’s decision to credit such testimony need not be coupled with corroborative evidence.

Matter of Kelly v Murphy (20 NY2d 205), on which the Appellate Division placed heavy reliance, suggests that the absence of corroboration may require that the accomplice’s testimony be discounted. But that suggestion must be understood in light of the facts of that case. We emphasized in Kelly that the Commissioner’s determination of guilt was made despite the fact that the Hearing Officer had exonerated Officer Kelly, and noted, in accord with our holding today, that the Hearing Officer’s evaluation of the witnesses’ credibility was entitled to great weight (id., at 209-210). Although we observed that, in contrast to Evans, no "corroborating circumstances” were present (id., at 208), that observation was not the sole or controlling basis for our conclusion that the Commissioner’s determination was not supported by substantial evidence. It was simply one reason among several why we found the Commissioner’s decision to overrule the Hearing Officer to be unsupportable. Thus, Kelly cannot be read to establish a corroboration requirement and its analysis has no application to cases, such as these, where the Hearing Officer has credited the accomplice testimony.

Because, for the reasons stated, we find no reason to require corroboration of accomplice testimony in police disciplinary hearings, we conclude that the Commissioner’s determinations are supported by substantial evidence. We also conclude that the punishments imposed were not excessive. In matters of police discipline, we must accord great leeway to the Commissioner’s determinations concerning appropriate punishment, because he, and not the courts, is accountable to the public for the integrity of the Department (Matter of Pell v Board of Educ., 34 NY2d 222, 235, 237, supra; see, Matter of Alfieri v Murphy, 38 NY2d 976). The charges sustained here were serious, involving criminal conduct by those entrusted to enforce the law. Under these circumstances we cannot say that dismissal was unwarranted.

Accordingly, the judgments of the Appellate Division should be reversed and the petitions dismissed.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

In each case: Judgment reversed, with costs, and the petition dismissed.

      . CPL 60.22 (1) provides, in relevant part: "A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.”

      . In light of our holding that corroboration is not required, we do not address the arguments that Peteroy’s testimony was sufficiently corroborated in both cases and do not undertake to resolve the dispute on that point between the majority and the dissenter at the Appellate Division in Farry.


text:
    The People of the State of New York, Respondent, v Demetrios Valentzas, Appellant.
    Argued October 5, 1987;
    decided November 19, 1987

      POINTS OF COUNSEL

      Irving Anolik for appellant.

      Robert M. Morgenthau, District Attorney (Robert M. Raciti and Amyjane Rettew of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge Wachtler.

After a jury trial defendant was convicted of criminal usury in the first degree. The Appellate Division affirmed, without opinion. Defendant’s single contention in this court is that the evidence in the record is insufficient to sustain the jury’s finding that he engaged in "a scheme or business of making or collecting usurious loans,” in violation of section 190.42 of the Penal Law.

In early 1982 Frank Xidakis borrowed $2,000 from defendant’s agent, Demos Pierratos. The loan terms required payment of interest at the rate of $100 per week, to continue until Xidakis repaid the $2,000 principal in a lump sum. By May of 1983, Xidakis had paid Pierratos approximately $5,000 in interest, but he still owed the $2,000 principal. At this point Xidakis gave Pierratos $100 more, but told him that it was the last payment he would make. Pierratos responded by telling Xidakis that if payments stopped he would "send some guys to fix you up.”

On July 7, 1983, as Xidakis waited in line at the OTB windows in Penn Station in Manhattan, he was approached by three or four men, one of whom was the defendant. Defendant threatened Xidakis that "if you don’t come up with that kind [of] money tonight or tomorrow, I’m going to kill you, I’m going to kill you.”

Xidakis then went to the police, and agreed to cooperate with their investigation into the suspected loan-sharking operation. Under police supervision Xidakis made numerous telephone calls to Pierratos, which were tape recorded and admitted into evidence at trial. During these conversations Xidakis tried to convince Pierratos not to have him beaten, and to lessen Xidakis’s payments. Pierratos responded that Xidakis should agree to meet with defendant, and, although Pierratos himself could not "make any deals,” defendant was willing to renegotiate the terms of the loan, and would accept $4,000 paid over time or $3,000 paid in a lump sum.

On July 15, 1983, Xidakis met defendant and Pierratos at a tavern to discuss the loan. After some discussion defendant agreed to renegotiate the loan and to accept $3,000 payable at the rate of $100 per week to Pierratos.

Xidakis then made regular payments (with minor exceptions) under these new terms. In January of 1984, however, Xidakis still owed $1,300, and called defendant in an attempt to settle the matter. Defendant agreed to settle the debt for a final payment of $1,000, and on January 30, 1984, with money provided by the police, Xidakis met with defendant and paid him the $1,000.

At trial, the prosecution’s expert testified that the rate of interest on the May 1982 loan was 260% per annum, that after defendant renegotiated the loan on July 15, 1983, the interest rate was 145.6% per annum, and that when Xidakis made the final $1,000 payment on January 30, 1984, the interest rate was lowered, in effect, to 109.2% per annum.

Penal Law § 190.42 states in relevant part that "[a] person is guilty of criminal usury in the first degree when, not being authorized or permitted by law to do so, he knowingly charges, takes or receives any money or other property as interest on the loan * * * of any money or other property, at a rate exceeding twenty-five per cent per annum or the equivalent rate for a larger or shorter period and either the actor had previously been convicted of the crime of criminal usury or of the attempt to commit such crime, or the actor’s conduct was part of a scheme or business of making or collecting usurious loans.” Thus by its plain language, where, as in the present case, defendant had not previously been convicted of criminal usury or an attempt to commit the crime, Penal Law § 190.42 requires a showing of two elements: that defendant charges, takes or receives money or other property as interest on a usurious loan, and that his actions were "part of a scheme of business of making or collecting usurious loans.” In contrast, the crime of criminal usury in the second degree requires proof of only the first element (Penal Law § 190.40). In the case before us criminal usury in the second degree was not charged to the jury.

Here, the record is clear that there were numerous times when defendant charged or received money as interest on a usurious loan. Defendant argues, however, that only a single usurious transaction was proved at trial, and thus under our decisions in People v Villani (59 NY2d 781) and People v Lombardo (61 NY2d 97), no "scheme or business of making or collecting usurious loans” was shown.

In People v Villani (supra) we dismissed an indictment alleging criminal usury in the first degree, and the presence of a "scheme or business,” because the People failed, upon defendant’s motion, to particularize the "scheme or business” allegation. In that case we called attention to "the difference between defending a single usurious transaction and defending against the broader charge of loansharking” (People v Villani, supra, at 783). Subsequently, in Lombardo (supra, at 105), we explained that the presence of a "scheme or business” can be shown by a "series of transactions, multiple as to loans if not borrowers, which are usurious and * * * can factually be found to be interrelated and to constitute parts of an integrated single operation.”

In the case before us there was ample evidence for the jury to have found that the first loan of $2,000, together with the July 15, 1983 renegotiation, which changed not only the interest rate but also the amount of principal due under the first loan, constituted multiple interrelated usurious loans and established the presence of a "scheme or business.” Moreover, the record shows that defendant directly participated in collection efforts on the first loan, and negotiated and collected payment on the second loan. Thus there is sufficient support in the record for the jury to have found defendant guilty of criminal usury in the first degree.

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

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed.


author: Alexander, J.

text:
    In the Matter of Replan Development, Inc., et al., Appellants, v Department of Housing Preservation and Development of the City of New York et al., Respondents.
    Argued October 6, 1987;
    decided November 19, 1987

      POINTS OF COUNSEL

      Philip K. Howard, C. William Phillips and Marcia R. Rich for appellants.

      Peter L. Zimroth, Corporation Counsel (Lisa Kaplan, Joseph I. Lauer and Judith R. Greenwald of counsel), for respondents.
   OPINION OF THE COURT

Alexander, J.

In the circumstances of this appeal, petitioner, a real estate developer, could not have justifiably relied on the provision for a tax exemption from certain increases in the assessed value of property in former section 489 of the Real Property Tax Law at the time he commenced renovation on his two vacant buildings. The amended version of that tax statute, which applies retroactively to prevent petitioner from qualifying for the receipt of the tax exemption, therefore, does not unconstitutionally deprive him of due process.

In April 1982, petitioner purchased two abandoned buildings on West 22nd Street in the Chelsea area of Manhattan that were bricked up and had been continuously vacant for one year. Their last certified use were as class B multiple dwellings for single room occupancy (SRO) (see, Multiple Dwelling Law § 4 [9], [16]). At the time of petitioner’s purchase, former section 489 of the Real Property Tax Law provided in relevant part that "[a]ny city to which the multiple dwelling law is applicable, acting through its local legislative body * * * is * * * empowered, to and including [June 1st, 1982], to adopt and amend local laws * * * providing that any increase in assessed valuation of real property shall be exempt from taxation * * * to the extent such increase results from * * * the conversion of * * * any class B multiple dwelling or class A multiple dwelling used in whole or in part for single room occupancy * * * to a class A multiple dwelling * * * not used in whole or in part for single room occupancy” (RPTL former 489, as amended by L 1977, ch 850, eff Aug. 11, 1977). Pursuant to this enabling legislation, the City of New York had enacted former section J51-2.5 of the Administrative Code of the City of New York, creating the so-called "J-51 program” and providing, in accordance with the enabling legislation, a tax exemption for the renovation of SRO’s. The City provided, by amendment made before 1982, that its J-51 program would be valid to 1984 (see, Local Laws, 1979, No. 77 of City of New York, approved Nov. 14, 1979).

In the hope of obtaining a J-51 tax exemption, petitioner filed the necessary architectural plans to restore the buildings, obtained the appropriate certificates, and secured a building permit in April 1983. Immediately thereafter, he commenced renovation of his two buildings into one class A multiple dwelling containing eight cooperative apartments not certified for single room occupancy. Two months later, however, on June 30, 1983, the Legislature amended RPTL 489 to repeal the tax exemption for the conversion of SRO’s. Moreover, the Legislature provided that the withdrawal of the exemption be applied retroactively to any SRO conversions commenced in the year prior to the effective date of the amendment, i.e., on or after June 1, 1982 (RPTL 489, as amended by L 1983, ch 401, eff June 30, 1983, retroactive to June 1, 1982). While originally, the J-51 program was designed to encourage renovation and development of class B multiple dwellings in order to increase the supply of class A residential housing, the amendment evidences the Legislature’s attempt to preserve what had become recognized as an important but rapidly disappearing source of low-income housing by eliminating the tax incentive to convert SRO’s. Consistent with the new legislative purpose, retroactive application of the amendment sought to discourage SRO owners from acting precipitously— perhaps by questionable means — to vacate their buildings in order to commence conversion before the effective date of the amendment. The same amendment was incorporated into the Administrative Code effective November 7, 1983 and made retroactive to July 1, 1982 (Administrative Code of City of New York § J51-2.5 [i] [6], now § 11-243 [i] [6]). Having commenced the conversion of his two buildings in April 1983, petitioner falls squarely within the retroactive period of both the State and local amendments.

Nevertheless, on January 11, 1984, petitioner applied for real estate tax benefits under the J-51 program. Respondent, the Department of Housing Preservation and Development of the City of New York, determined that, due to the change in the law, petitioner was ineligible for the J-51 tax exemption and denied his application accordingly. In this article 78 proceeding challenging that determination, petitioner argues that he is entitled to the J-51 tax benefit because he acted in reliance on the inducement in the City law and in former RPTL 489, and because retroactive denial of the exemption unconstitutionally deprives him of due process. Supreme Court upheld respondent’s determination and dismissed the petition, holding that the retroactive legislation at issue was constitutional as applied to petitioner. The Appellate Division affirmed.

We agree with both lower courts that the retroactive application of the tax amendment in question does not unconstitutionally deprive petitioner of due process. Retroactivity provisions in tax statutes, if for a short period, are generally valid (Matter of Neuner v Weyant, 63 AD2d 290, appeal dismissed 48 NY2d 975; Clarendon Trust v State Tax Commn., 43 NY2d 933, 934; People ex rel. Beck v Graves, 280 NY 405, 409; Welch v Henry, 305 US 134, 146; Milliken v United States, 283 US 15), and ordinarily are upheld against due process challenges, unless in light of "the nature of the tax and the circumstances in which it is laid”, the retroactivity of the law is "so harsh and oppressive as to transgress the constitutional limitation” (Welch v Henry, 305 US 134, 147, supra). Indeed, retroactive application of property taxes and benefit assessments of real estate have been distinguished from the unfavored retroactivity of other kinds of taxes (see, e.g., Untermeyer v Anderson, 276 US 440, 445 [retroactive taxation of inter vivos gift]) on the theory that the taxpayer received some economic benefit from the conduct aside from the tax benefit (see, e.g., Welch v Henry, 305 US 134, supra [retroactive taxation of corporate dividends]). Whether the retroactive application of a tax statute is "harsh and oppressive” is a "question of degree” (People ex rel. Beck v Graves, 280 NY 405, 409, supra), requiring a "balancing of [the] equities” (Clarendon Trust v State Tax Commn., 43 NY2d 933, 934, supra).

In reaching the appropriate balance, several factors may be considered. First, and perhaps predominant, is the taxpayer’s forewarning of a change in the legislation and the reasonableness of his reliance on the old law (see, Matter of Chrysler Props. v Morris, 23 NY2d 515, 521; Matter of Neuner v Weyant, 63 AD2d 290, 300, supra; see also, United States v Hudson, 299 US 498). This inquiry focuses on whether "the taxpayer’s 'reliance’ has been justified under all the circumstances of the case and whether his 'expectations as to taxation [have been] unreasonably disappointed’ ” (Matter of Neuner v Weyant, 63 AD2d 290, 300, supra, quoting Wilgard Realty Co. v Commissioner of Internal Revenue, 127 F2d 514, 517). The strength of the taxpayer’s claim to the benefit may be significant if he has "obtained a sufficiently certain right to the money” prior to the enactment of the new legislation (see, Matter of Chrysler Props. v Morris, 23 NY2d 515, 519, supra). Additionally, the length of the retroactive period often has been a crucial factor, and excessive periods have been held to unconstitutionally deprive taxpayers of a reasonable expectation that they "will secure repose from the taxation of transactions which have, in all probability, been long forgotten” (Matter of Neuner v Weyant, 63 AD2d 290, 302, supra; see, e.g., Matter of Lacidem Realty Corp. v Graves, 288 NY 354, 357 [four-year retroactivity period excessive]; People ex rel. Beck v Graves, 280 NY 405, 409-410, supra [16-year retroactivity period excessive]). Finally, the public purpose for retroactive application is important because of the taxing authority’s legitimate concern that "evasive measures taken after introduction of a bill but before enactment might frustrate the purpose of the legislation” (see, Matter of Neuner v Weyant, 63 AD2d 290, 302, and 299-302, supra; Clarendon Trust v State Tax Commn., 43 NY2d 933, 935, supra [retroactivity too harsh in absence of valid public purpose]).

Here, the relevant considerations do not militate in petitioner’s favor. Petitioner concedes that the period of retroactivity —one year — is not excessive. The objectives of the retroactive application — to forestall the loss of SRO housing and to discourage the precipitous eviction of tenants — are valid public purposes. That petitioner’s two buildings were vacant at the time he commenced conversion and therefore no low-income tenants could have been rushed to eviction, does not diminish the fact that petitioner nonetheless caused a further decrease in the SRO housing stock — precisely what the amendment sought to discourage. More importantly, we are persuaded that petitioner could not have justifiably relied on the tax inducement as it existed in 1982. New York City’s J-51 program — although extended by local law to 1984 — was subject to such changes as may have been made in the State enabling legislation itself, which authorized the tax exemption in the first instance. Petitioner was forewarned that the State authorization expired on June 1, 1982 thereby calling into question the continued validity of the local law after that date. With such notice, petitioner may not now claim he entertained a settled reasonable expectation of entitlement to the City’s exemption based upon renovations he did not commence until April 1983. We conclude therefore that respondent’s application of this particular retroactive provision to petitioner did not constitute an unconstitutional deprivation of due process (see, Welch v Henry, 305 US 134, supra).

We have reviewed petitioner’s remaining contentions and find them to be without merit. Accordingly, the order of the Appellate Division should be aifirmed, with costs.

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

Order aifirmed, with costs.


author: Chief Judge Wachtler. Titone, J.

text:
    In the Matter of Shannon B., Appellant.
    Argued October 15, 1987;
    decided November 19, 1987

      POINTS OF COUNSEL

      Mary A. Clark and Lenore Gittis for appellant.

      Peter L. Zimroth, Corporation Counsel (Michael S. Adler and Francis F. Caputo of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge Wachtler.

The primary issue before us on this appeal is whether a New York City police officer had authority to detain appellant, a suspected truant, with the intention of transporting her to the Board of Education for further investigation and processing.

We conclude that the officer had such authority and, therefore, was at the time performing a lawful duty. Accordingly, appellant’s acts of resistance, which included striking the officer, were acts which, if committed by an adult, would have constituted the crimes of obstructing governmental administration (Penal Law § 195.05) and attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [3]). Her continued resistance after being placed under arrest was conduct which, if committed by an adult, would have constituted the crime of resisting arrest (Penal Law § 205.30). Thus, she was properly adjudicated in the Family Court to be a juvenile delinquent.

On March 16, 1984, a day that public school was in session, at approximately 10:15 a.m. two New York City police officers observed appellant standing on a sidewalk one-half block from Rothschild Junior High School in Brooklyn. The police were on a truancy patrol in a van with police markings, and called to her to come over to the van. Appellant approached the van and was asked by Officer Yvonne Ortiz why she was not in school. According to Ortiz, appellant "was unable to really give an answer to that”, so she was asked to step into the van. She complied, but soon became belligerent and abusive, threatening to exit the van while it was in motion. Officer Ortiz climbed to the back of the van to prevent her from leaving, but appellant struck Ortiz with a forearm blow to her nose. A struggle ensued, and appellant was eventually handcuffed and arrested. A juvenile delinquency petition subsequently was filed, charging appellant with the commission of acts which, if committed by an adult, would constitute the crimes of assault in the second degree, resisting arrest, and obstruction of governmental administration.

After a fact-finding hearing at which Officer Ortiz was the only witness, Family Court found appellant guilty of all charges, except that the court reduced the assault charge to attempted assault. The court adjudicated appellant a delinquent and placed her on six months’ probation.

The Appellate Division affirmed (122 AD2d 268), rejecting appellant’s argument that she could not be convicted for any crime because she had been unlawfully arrested for suspected truancy without statutory authorization. The court noted that appellant had not been detained on suspected violation of any criminal law, but, rather, on suspected violation of the noncriminal compulsory education laws "enacted for protection and not the prosecution of children” (id., at 269). Furthermore, according to the court, the police clearly possess the authority to implement the State’s parens patriae interest. Accordingly, the court found the police action to be proper, and affirmed Family Court’s dispositional order.

The Appellate Division did not explicitly address the constitutional argument upon which appellant hinges her appeal as of right to this court (see, CPLR 5601 [b] [1]) — that even if the police possess authority to detain suspected truants, the seizure must be supported by probable cause. The record reveals that this argument was first raised on the appeal to the Appellate Division. The issue is therefore not preserved for our review and the appeal as of right must be dismissed on the ground that no substantial constitutional question is directly involved. Anticipating this development, however, appellant moved at oral argument for leave to appeal, relief which we grant to consider the important issue of the scope of police authority in these circumstances.

We conclude that New York City police officers have authority to detain suspected truants. Appellant’s argument to the contrary rests on an unduly narrow view of the traditional and appropriate role of the police in our society. As we have noted in another context, the role of the police is not limited to the enforcement of the criminal law. Instead, their role is "a multifaceted one * * * Among other functions, the police in a democratic society are charged with the protection of constitutional rights, the maintenance of order, the control of pedestrian and vehicular traffic, the mediation of domestic and other noncriminal conflicts and supplying emergency help and assistance” (People v De Bour, 40 NY2d 210, 218).

Section 435 (a) of the New York City Charter reflects this understanding by conferring upon the police the obligation and attendant authority to "preserve the public peace, prevent crime, detect and arrest offenders * * * protect the rights of persons and property, guard the public health [and] enforce and prevent the violation of all laws and ordinances in force in the city”. We agree with the lower courts in this case and with the view that the enforcement of the State’s compulsory education laws is well within the scope of this grant of authority and the traditional role of the police that it restates (see, Education Law art 65; Matter of Julio R., 129 Misc 2d 171, 173).

We are not persuaded to conclude otherwise by appellant’s reference to Education Law § 3213 (1) (a) and (2) (a), which confer the authority to arrest truants upon certain attendance officers appointed by school officials. The failure of the Legislature to designate police officers as beneficiaries of this grant of authority does not compel the conclusion, advanced by appellant and accepted by the dissent, that the legislative intent was to withhold such authority from them. As noted above, police officers derive their authority to enforce the compulsory education laws from sources independent of Education Law § 3213 (2) (a). The grant of enforcement powers to attendance officers is simply a grant of authority to those who otherwise would not have it; it does not implicitly divest such power from those who hold it from other sources. The authority of attendance officers is not exclusive or inconsistent with police participation in enforcement. Rather, their roles are harmonious and complementary, both legally and practically.

Appellant also contends that Education Law § 3213 (2) (a) requires those enforcing the law to be certain that a student is, in fact, a truant before the student may be detained. We disagree. Although the statute authorizes the arrest of a student who "is unlawfully absent”, the strict interpretation of that language pressed by appellant — which would require the enforcement officer to negate every lawful excuse for the student’s absence before making an arrest— would erect an insurmountable barrier to enforcement, in conflict with the salutary goals the enforcement mechanisms were designed to achieve (see, Education Law § 3213 [1] [a]). The circumstances presented here — an apparently school-age child on the street a half block away from the nearest school at a time when school was in session and unable to give an explanation for her absence — gave Officer Ortiz a sufficient factual basis to detain her and transport her to the Board of Education for further investigation and processing.

In sum, we conclude that Officer Ortiz exercised lawful authority and that the charges in the petition were properly sustained.

Accordingly, the appeal taken as of right should be dismissed upon the ground that no substantial constitutional question is directly involved. Appellant’s motion for leave to appeal should be granted and the order of the Appellate Division affirmed, without costs.

Titone, J.

(dissenting). In holding that the Police Department of the City of New York has the power under the City Charter to arrest and detain truants, the majority has overlooked the clear and unambiguous intent of the Legislature to limit such a power to those school attendance officials expressly designated in Education Law § 3213. For that reason, I respectfully dissent.

The State Legislature has empowered certain designated persons to enforce the truancy laws. Education Law § 3213 (2) (a) provides that "[a] supervisor of attendance, attendance teacher or attendance officer, as the case may be, may arrest without warrant any minor who is unlawfully absent from attendance upon instruction.” Respondent New York City argues that its police officers may also detain and arrest truants. In support of its position the City relies on section 435 of the New York City Charter, which states that "[t]he police department and force shall have the power and it shall be their duty to * * * enforce and prevent the violation of all laws and ordinances in force in the city”. Under this provision, contends the City, the New York City Police Department has a power that is coextensive with that of the officials designated in the Education Law to enforce the truancy laws. In spite of the statutory scheme for dealing with truancy established by the Legislature, the majority accepts the City’s argument and concludes that Education Law § 3213 (2) (a) does not divest the police of the power to arrest truants.

It is well settled that the New York City Charter has the force of State law (see, NY Const art IX; L 1937, ch 929; L 1936, ch 483; L 1934, ch 867; Municipal Home Rule Law § 1 et seq.; Matter of LaGuardia v Smith, 288 NY 1, 6-7). The provision of the charter relied on by the City, however, is a general one, enacted without regard to the policies embodied in the Education Law. Education Law § 3213, in contrast, is a specific enactment that seeks to effectuate the State’s policy of minimizing truancy. The latter provision was the product of a conscious legislative choice as to which persons were best equipped to deal with children who have difficulty adjusting to school.

The approach of limiting who may enforce the truancy law to certain specialists is very much in keeping with our general attitude and policies regarding the handling of minors. It has long been governmental policy to protect our youth from the harsh, punitive world of the adult justice system (see, e.g., McKeiver v Pennsylvania, 403 US 528, 552-553 [White, J., concurring]). Undoubtedly, the Legislature was well aware of the humiliation and embarrassment that a child would suffer by being "carted off” in a police van for truancy. Thus, embodied in the statutory scheme of the Education Law is the notion that only those individuals uniquely qualified to handle problem children should be empowered to make warrantless arrests of minors suspected of truancy. A supervisor of attendance, for example, is selected on the basis of teaching experience, experience in social service and welfare work, must be licensed as an attendance teacher and must be in good physical health (Education Law § 3213 [1]). Surely, the Legislature did not intend to overturn its specific plan for the enforcement of truancy laws when — in another time and a different context —it adopted a City Charter, which quite naturally included a general grant of authority for the City’s police force (cf., Erie County Water Auth. v Kramer, 5 NY2d 954, affg 4 AD2d 545, 550; Hughes Tool Co. v Fielding, 297 NY 1024, affg 272 App Div 1048, affg 188 Misc 947; East End Trust Co. v Otten, 255 NY 283; Sheridan Suzuki v Caruso Auto Sales, 110 Misc 2d 823, 825). To accept the rationale of the City is to render nugatory the intent of the Legislature as contained in the text of Education Law § 3213. As stated in Erie County Water Auth. v Kramer (supra, at 550), "[u]nless the language means expressly what it says, it means nothing.” To interpret Education Law § 3213 in a manner inconsistent with the express mandate of the Legislature is to render it meaningless.

The crimes that the defendant was convicted of — resisting arrest (Penal Law § 205.30), attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [3]), and obstructing governmental administration — require that the police officer be engaged in a lawful arrest. Inasmuch as I have concluded that the arrest in this case was not lawful, I would reverse.

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

Appeal taken as of right dismissed, without costs. Appellant’s motion for leave to appeal granted. Order affirmed, without costs.