text:
    In the Matter of Michael R., Appellant. The People of the State of New York, Respondent, v Chris Ross, Appellant.
    Argued February 17, 1984;
    decided March 22, 1984

      POINTS OF COUNSEL

      Arnold S. Cohen and Lenore Gittis for appellant in the first above-entitled proceeding.
    I. Appellant’s possession of a starter’s pistol did not violate subdivision g of section 436-5.0 of the New York City Administrative Code which prohibits the sale or possession of toy or imitation pistols. (People v Rivers, 76 Misc 2d 972; People v Klufus, 1 Misc 2d 828, 2 AD2d 958; People v Schmidt, 221 App Div 77; People v Grillo, 15 AD2d 502, 11 NY2d 841; People v Ross, 58 NY2d 1123; People v Pearson, 85 Misc 2d 1029; People v Davis, 82 Misc 2d 947; People v Judiz, 38 NY2d 529.) II. Appellant’s Federal and State constitutional rights were violated when Police Officer John Kelly seized appellant based solely on appellant’s presence with other persons whom the officer believed had committed a crime. The gun recovered from appellant must be suppressed because its discovery was the direct result of appellant’s illegal detention. (People v Martin, 32 NY2d 123; Sibron v New York, 392 US 40; Wong Sun v United States, 371 US 471; Terry v Ohio, 392 US 1; People v Cantor, 36 NY2d 106; People v Howard, 50 NY2d 583, 449 US 1023; Dunaway v New York, 442 US 200; Brown v Texas, 443 US 47; Adams v Williams, 407 US 143; United States v Brignoni-Ponce, 422 US 873.) III. The starter’s pistol must be suppressed because the frisk of appellant was unlawful. The officers failed to articulate facts that could support a reasonable belief that appellant was armed and presently dangerous. (Terry v Ohio, 392 US 1; People v Mack, 26 NY2d 311; Ybarra v Illinois, 444 US 85; People v Mitchell, 75 AD2d 626; People v Prochilo, 41 NY2d 759; People v Marquez, 80 AD2d 837; People v Blackman, 61 AD2d 916; People v Stewart, 41 NY2d 65; People v Grant, 42 NY2d 1019; People v Benjamin, 51 NY2d 267.)

      Frederick A.O. Schwarz, Jr., Corporation Counsel {Helen P. Brown and Michael Gage of counsel), for respondent in the first above-entitled proceeding.
    I. The evidence presented to the Family Court of appellant’s possession of a starter’s pistol established beyond a reasonable doubt his violation of subdivision g of section 436-5.0 of the New York City Administrative Code. (People v Judiz, 38 NY2d 529; People v Klufus, 1 Misc 2d 828, 2 AD2d 958; People v Webb, 78 Misc 2d 253; People v Pearson, 85 Misc 2d 1029; People v Davis, 82 Misc 2d 947; Matter of Jamie D., 59 NY2d 589; People v O’Neill, 86 AD2d 213; People v Williams, 113 Misc 2d 595; People v Rivers, 76 Misc 2d 972.) II. Respondent properly stopped appellant for questioning when it reasonably appeared that a crime was being committed. Respondent’s frisk of appellant for weapons was appropriate based upon his reasonable fear for his life under the circumstances. The Family Court properly denied the motion to suppress appellant’s gun. (Matter of Hofbauer, 47 NY2d 648; Terry v Ohio, 392 US 1; People v Cantor, 36 NY2d 106; People v Valentine, 17 NY2d 128; Brown v Texas, 443 US 47; People v Howard, 50 NY2d 583, 449 US 1023; Adams v Williams, 407 US 143; People v De Bour, 40 NY2d 210; Ybarra v Illinois, 444 US 85; People v Sanchez, 38 NY2d 72.)

      Eve Cary and William E. Hellerstein for appellant in the second above-entitled action.
    A real but inoperable pistol is not an “imitation” pistol within the meaning of subdivision g of section 436-5.0 of the New York City Administrative Code. (People v Williams, 113 Misc 2d 595; People v Rivers, 76 Misc 2d 972; People v Pearson, 85 Misc 2d 1029; People v Davis, 82 Misc 2d 947; People v Byron, 17 NY2d 64; People v Ditta, 52 NY2d 657; People v Gottlieb, 36 NY2d 629; United States v Harriss, 347 US 612; People v Judiz, 38 NY2d 529.)

      Mario Merola, District Attorney {Muriel Sanders and Peter D. Coddington of counsel), for respondent in the second above-entitled action.
    An actual but inoperable pistol is an imitation pistol which substantially duplicates an actual pistol within the meaning intended by the Administrative Code. (People v Judiz, 38 NY2d 529; People v Webb, 78 Misc 2d 253; People v Klufus, 1 Misc 2d 828, 2 AD2d 958; People v Grillo, 11 NY2d 841; Guiseppi v Walling, 144 F2d 608; People v Pearson, 85 Misc 2d 1029; People

      v Davis, 82 Misc 2d 947; People v Williams, 113 Misc 2d 595; People v Rivers, 76 Misc 2d 972; Smith v People, 47 NY 330.)
   OPINION OF THE COURT

Per Curiam.

The question presented on these appeals is whether the object possessed — in one case a real but inoperable handgun, and in the other a starter’s pistol — is a “toy or imitation pistol or revolver” within the meaning of subdivision g of section 436-5.0 of the New York City Administrative Code.

In Ross, defendant was arrested for possession of a .25 caliber silver-plated Baretta pistol loaded with four rounds of ammunition, and charged with criminal possession of a weapon (Penal Law, § 265.02, subd [4]). When the gun was found to be inoperable because of a faulty firing pin, the charge was reduced and defendant was accused, by information, with violating subdivision g of section 436-5.0 of the New York City Administrative Code, which provides in part: “It shall be unlawful for any person to sell or offer for sale, possess or use or attempt to use or give away, any toy or imitation pistol or revolver which substantially duplicates an actual pistol or revolver, unless said imitation or toy pistol or revolver shall be colored in colors other than black, blue, silver or aluminum, and further provided that the barrel of said toy or imitation pistol or revolver shall be closed with the same material of which the toy or imitation pistol or revolver is made for a distance of not less than one-half inch from the front end of said barrel”. On defense motion, Criminal Court dismissed the information, concluding that “an inoperable real revolver or pistol does not come within the purview of N.Y.C. Admin. Code Sec. 436-5.0 (g).” The Appellate Term reversed, in a 2 to 1 decision, holding that an inoperable pistol should be treated as an “imitation pistol.”

In Matter of Michael R., appellant, 14 years old, was charged with possessing a “black Italian starter’s pistol,” an act which if committed by an adult would have been a violation of subdivision g of section 436-5.0 of the Administrative Code. The pistol was inoperable. After a fact-finding hearing, Family Court determined that the acts alleged in the petition had been proven, adjudged appellant a juvenile delinquent, and placed him on probation for one year. The Appellate Division affirmed, without opinion.

In both cases, appellants argue that the objects possessed cannot be regarded as a “toy or imitation pistol or revolver,” within the meaning of the Administrative Code.

Whether it might have been wise for the city council to prohibit the possession of real but inoperable pistols along with its prohibition of toys and imitations, we deal only with the plain and natural meaning of the language employed. A real pistol or revolver, even though inoperable, simply is not a “toy or imitation”. As noted by the court in People v Rivers (76 Misc 2d 972, 975), “one would not call a broken radio a copy of a real radio or a defective toaster a copy of a real toaster.” Thus, the information in Ross must be dismissed.

However, we reach the opposite conclusion as to the starter’s pistol. A starter’s pistol is a gun manufactured to fire blank cartridges and is most commonly used as a signaling device at athletic events. It is, in essence, a noisemaker designed to resemble an actual firearm. As such, it is an imitation pistol and its possession is prohibited by the statute.

We have considered the remaining arguments in Matter of Michael R. and find them to be without merit.

The order of the Appellate Term in People v Ross should be reversed and the information dismissed. The order of the Appellate Division in Matter of Michael R. should be affirmed, without costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion.

In Matter of Michael R.: Order affirmed, etc.

In People v Ross: Order reversed, etc.


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Clinton Charles, Appellant.
    Argued February 13, 1984;
    decided March 27, 1984

      POINTS OF COUNSEL

      Eric A. Stiff and Frances S. Cohen for appellant.
    I. It was error to charge the jury that defendant could be found guilty of bribe receiving on an act of solicitation alone when both the indictment and the bill of particulars set forth the crime as involving the actual receipt of money. (People v Berkowitz, 14 Misc 2d 384; People v Farson, 244 NY 413; People v Williams, 243 NY 162; People v Spann, 56 NY2d 469.) II. The" prosecution failed to prove defendant guilty of the felony of bribe receiving. (People v Holmes, 72 AD2d 1; People v Rossi, 69 AD2d 778; People v Herskowitz, 41 NY2d 1094; People v Ginsberg, 80 Misc 2d 921.) III. The prosecutor’s repeated and purposeful use of peremptory challenges to exclude black jurors mandated a hearing to determine whether such systematic exclusion deprived defendant of his constitutional right to trial by an impartial jury selected from a fair cross section of the community. (People v Thompson, 79 AD2d 87; People v Boone, 107 Misc 2d 301; People v Kagan, 101 Misc 2d 274, 56 NY2d 193.) IV. Limitation on defense counsel’s ability to suggest in the summation inferences to be drawn from the evidence wrongly penalized defendant. (People v Ashwal, 39 NY2d 105; Herring v New York, 422 US 853; People v Caserta, 19 NY2d 18; People v Wright, 41 NY2d 172.)

      Thomas A. Duffy, Jr., Deputy Attorney-General CMichael Shapiro and Jill Simon of counsel), for respondent.
    I. Appellant was proven guilty of the crime of bribe receiving in the second degree beyond a reasonable doubt. (People v Chapman, 13 NY2d 97; People v Rossi, 69 AD2d 778, 50 NY2d 813.) II. The prosecutor’s use of peremptory challenges was not discriminatory and did not deprive appellant of his right to a trial by an impartial jury. (People v McCray, 57 NY2d 542; People v Thompson, 79 AD2d 87; People v Hobson, 39 NY2d 479; Matter of Eckart, 39 NY2d 493; City of Buffalo v Cargill, 44 NY2d 7; Higby v Mahoney, 48 NY2d 15; Taylor v Louisiana, 419 US 522.) III. The court was correct in charging that it was sufficient for the jury to find that appellant either solicited, or agreed to accept or accepted a benefit in order to return a guilty verdict. (People v Nicholas, 35 AD2d 18; People v Clougher, 246 NY 106; People v Harrison, 40 Misc 2d 601; People v Iannone, 45 NY2d 589; People v Armlin, 6 NY2d 231; People v Farson, 244 NY 413; People v Davis, 41 NY2d 678; People v Lupia, 66 Misc 2d 775.) IV. The limitation on defense counsel’s references in summation to inferences to be drawn from evidence, which by prior stipulation was not introduced at the third trial, was proper and did not wrongly penalize appellant. (People v Ashwal, 39 NY2d 105; People v Caserta, 19 NY2d 18.)
   OPINION OF THE COURT

Simons, J.

Defendant appeals from an order of the Appellate Division, which affirmed, with one Justice dissenting, a judgment entered on a jury verdict finding him guilty of bribe receiving in the second degree (Penal Law, § 200.10). The conviction came after juries had failed to agree in two previous trials.

The principal issues raised on this appeal are the legal sufficiency of the evidence to establish that the alleged bribe was offered to defendant to affect his judgment or action “as a public servant,” and whether the conviction must be reversed because a variation between the definition of the crime in the court’s charge and the language contained in the indictment improperly changed the theory of the prosecution and prejudiced the defense.

Defendant, was employed as a court clerk for a Criminal Court in New York City. On March 15, 1979, he was approached by James Villafana, an undercover agent for the office of the Special Prosecutor posing as a gypsy cab driver. Villafana had been issued several traffic summonses under an assumed name as part of a continuing investigation into allegations that court workers were “fixing” summonses in return for bribes. He took the summonses to traffic court, presented them to defendant and asked for his help. Defendant explained that one of the tickets, issued for driving an uninsured vehicle, would result in a minimum fine of $100 and revocation of Villafana’s driver’s license, and that redemption of the license would cost $300. He explained that the others concerned minor violations which would probably result in small fines of $5 or $10. Defendant then told Villafana that for $100 he could get the “uninsured” ticket dismissed. After Villafana agreed, defendant took him into a locked restroom where he instructed Villafana how to plead to the charges and where, the prosecution contended, he accepted the $100 in bribe money. Defendant then took the agent to the courtroom and assisted him in pleading and obtaining receipts for the small fines. The “uninsured” ticket was dismissed, not through any act of defendant but because it was invalid on the face: Villafana was not the owner of the uninsured vehicle. At the time of the transaction, Villafana was wearing a recording device and the tapes of his conversations with defendant were played to the jury during the trial.

Defendant was not arrested until some time later and none of the bribe money was traced to him. He denied soliciting or receiving it.

Defendant’s first point on this appeal, and the point on which the Justices at the Appellate Division disagreed, is that the statute prohibits solicitation or receipt of money to influence his judgment or action and that because he did not have the authority in his job to affect the disposition of Villafana’s tickets, he could not have been guilty of bribe receiving in the second degree. The statute defines the crime as follows: “A public servant is guilty of bribe receiving in the second degree when he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that his vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced.” (Penal Law, § 200.10.) The proof necessary to establish the crime must show, at a minimum, that a public servant solicited or agreed to accept a benefit from another person upon an agreement or understanding that his action as a public servant would thereby be influenced. The statute requires no act beyond the agreement or understanding, however, and defendant’s inability to influence the disposition of traffic tickets did not necessarily remove his conduct from that proscribed by it (see People v Chapman, 13 NY2d 97). If the briber sought to affect his judgment or action in his capacity as a public servant and within the “colorable” authority of the public position he held at the time of the bribe offer, the crime was committed. The decisions hold that “colorable” authority exists when a bribe is offered to a public official “to act corruptly in a matter to which he bears some official relation, though the act itself may be technically beyond his official powers or duties” (People v Lafaro, 250 NY 336, 342; see People v Herskowitz, 41 NY2d 1094). Manifestly, as a clerk in the courts, defendant came within this rule and his conduct constituted a crime although he did not have authority to dismiss traffic tickets.

Defendant next challenges the court’s instructions to the jury. He contends that they differed significantly from the theory of the crime charged in the indictment and therefore require reversal. Although the statute proscribes solicitation or an agreement to accept or acceptance of a bribe, the indictment and the bill of particulars charged that defendant “solicited, agreed to accept and accepted” a bribe. Defendant contends that the prosecution was bound by this use of conjunctive language and that in the absence of an amendment to the indictment and bill of particulars the court’s instructions in the language of the statute rather than the language of the indictment were error and the judgment must be reversed inasmuch as the jury’s verdict was based upon them.

It is familiar law that the requirement found in section 6 of article I of the State Constitution that “[n]o person shall be held to answer for a capital or otherwise infamous crime * * * unless on indictment of a grand jury” serves a threefold purpose. First, an indictment provides the defendant with fair notice of the accusations made against him to enable him to prepare a defense. Second, it insures that the crime for which defendant is tried is the same as intended by the Grand Jury, and thus prevents the court or prosecutor from usurping the Grand Jury’s powers. Finally, the indictment protects against double jeopardy by specifying the particular crime for which a defendant has been tried (see People v Spann, 56 NY2d 469, 472; People v Iannone, 45 NY2d 589, 594-595).

Defendant asserts that this indictment did not give him fair notice of the prosecution’s theory of the crime. We disagree. Defense counsel was not hampered in his ability to prepare by the use of the language in the indictment and bill of particulars. At the beginning of the trial he asked the court to require the People, if they were to sustain their burden, to prove that defendant solicited and agreed to accept and accepted a bribe. In support of this pretrial motion he contended that he had relied on the bill of particulars as notice of the prosecutor’s trial strategy and it was crucial to the defense that it not be changed. Defense counsel had participated in defendant’s second trial, however, and he had participated in the preliminaries to the third trial. He was aware of the prosecution’s strategy and he admitted as much. The court correctly denied counsel’s motion (see People v Taylor, 74 AD2d 177, 181).

Moreover, the trial court’s charge that the jury could find defendant guilty if it found that he either solicited or agreed to accept or accepted a bribe, rather than requiring cumulative proof of all three acts, did not usurp the Grand Jury’s powers. It correctly advised the trial jurors that the prosecution need not prove allegations in an indictment that are extraneous to the material elements of the offense charged (see People v Rooney, 57 NY2d 822; People v Spann, 56 NY2d 469, supra). The use of the conjunctive “and” rather than the disjunctive “or” in the indictment charged more than the People were required to prove under the statute and did not bind the prosecution to prove all three acts (see People v Clougher, 246 NY 106,112). The rule was stated in People v Nicholas (35 AD2d 18, 20 [Cooke, J.]): “Where an offense may be committed by doing any one of several things, the indictment may, in a single count, group them together and charge the defendant with having committed them all, and a conviction may be had on proof of the commission of any one of the things, without proof of the commission of the others (Bork v. People, 91 N. Y. 5,13; People v. Dabek, 18 AD2d 773; People v. Farson, 218 App. Div. 488, 490, affd. 244 N. Y. 413).”

People v Rooney (supra) is to the point. In that criminally negligent homicide case, the indictment charged that defendant “operated a motor vehicle at an excessive rate of speed, on the wrong side of the road while intoxicated and struck another vehicle” causing the death of another person. Defendant contended that he could not be found guilty of criminally negligent homicide unless the jury found that he had committed all of the acts mentioned in the indictment, a matter of some consequence because the jury by its verdict finding criminal negligence had also acquitted defendant of a separate count of driving while under the influence of alcohol. Because the allegation of driving while under the influence was not necessary to sustain the conviction for criminally negligent homicide, we sustained the conviction.

Similarly, in People v Spann (56 NY2d 469, supra), we held that the trial court had not constructively amended an indictment charging robbery by allowing proof that the defendant stole drugs, rather than jewelry or money as alleged in the indictment. The defendant in his testimony had admitted stealing the drugs, and, because the nature of the property stolen was not a material element of the charge which required only proof that “property” was stolen, the robbery conviction was affirmed. In People v Feldman (50 NY2d 500) we considered the appeal of a conviction of criminal sale of a controlled substance in the third degree where the indictment charged the defendant with selling drugs to an undercover policeman and the evidence at trial revealed that the drugs were actually sold to an informant who in turn sold them to the policeman. We held that the person to whom the drugs were sold was immaterial to the corpus delicti of the crime charged.

To be distinguished from these and similar cases are those in which the jury is charged in a manner that changes the theory of the prosecution from that in the indictment and bill of particulars, or otherwise prejudices the defendant on the merits. Thus, an indictment for sodomy which included a charge that forcible compulsion was accomplished “by means of physical force which overcame earnest resistance” could not provide a basis for a jury charge that guilt could be premised on a finding of physical force or a threat placing the victim in fear of immediate death or physical injury. The variation from the theory of prosecution found in the indictment did not merely alter a factual incident in a way still consistent with that theory, but in fact changed the theory itself (see People v Kaminski, 58 NY2d 886; see, also, People v Barnes, 50 NY2d 375).

Defendant’s two remaining points require little discussion. First, he contends that the court erred in failing to hold a hearing to consider whether the prosecutor used his peremptory challenges during jury selection to disqualify substantially more black veniremen than white veniremen. Counsel contends that the challenges were used to systematically exclude minority jurors. We have held recently, however, that such hearings are not required and that a prosecutor is not required to disclose his reasons for excluding prospective jurors in a particular case (People v McCray, 57 NY2d 542, cert den _. US _, 103 S Ct 2438; but see McCray v Abrams, 576 F Supp 1244). Defendant asks us to reconsider that decision but we see no reason to do so, particularly in view of the record in this case which fails to contain evidence of systematic exclusion.

Finally, defendant contends the court erred in restricting his summation because it prevented him from commenting on the investigator’s failure to “tail” defendant after defendant received the bribe money. The ruling was discretionary and well within a stipulation made by counsel earlier in the trial not to discuss certain matters. It presents no grounds for reversal.

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

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

Order affirmed.


author:
Kaye, J.
      Simons, J.

text:
    In the Matter of the Dental Society of the State of New York, Respondent, v Hugh Carey, as Governor of the State of New York, et al., Appellants.
    Argued February 15, 1984;
    decided March 27, 1984

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (William J. Kogan and Peter H. Schiff of counsel), for appellants.
    I. The court below erred in finding that petitioner has standing to prosecute this proceeding. (National Union of Hosp. & Health Care Employees v Carey, 557 F2d 278; Matter of Bradford Cent. School Dist. v Ambach, 56 NY2d 158; Valley Forge Coll. v Americans United, 454 US 464; Warth v Seldin, 422 US 490; Matter of Dairylea Coop. v Walkley, 38 NY2d 6; Boryszewski v Brydges, 37 NY2d 361; Nassau Neuropsychiatric Soc. v Adelphi Univ., 18 NY2d 370; Singleton v Wulff 428 US 106.) II. Petitioner’s request for a judgment mandating that respondents revise upward Medicaid reimbursement rates for dental services does not present a justiciable cause of action. (Board of Educ. v

      Nyquist, 57 NY2d 27; Matter of Quinton A., 49 NY2d 328; Jones v Beame, 45 NY2d 402; Matter of Kerness v Berle, 57 NY2d 1042; Dulberg v Mock, 1 NY2d 54; Green v Cashman, 605 F2d 945; Georgia Hosp. Assn. v Department of Med. Assistance, 528 F Supp 1348; Briarcliff Haven v Department of Human Resources, 403 F Supp 1355; Howard v Lecher, 42 NY2d 109.)

      Lawrence M. Monat arid John M. Power for respondent.
    I. The court below correctly held that the Dental Society has standing to prosecute this proceeding. (Boryszewski v Brydges, 37 NY2d 361; Wein v City of New York, 36 NY2d 610; Matter of Burke v Sugarman, 35 NY2d 39; Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1; National Organization for Women v State Div. of Human Rights, 34 NY2d 416; Matter of Bradford Cent. School Dist. v Ambach, 56 NY2d 158; Data Processing Serv. v Camp, 397 US 150; Singleton v Wulff, 428 US 106; Coe v Hooker, 406 F Supp 1072; National Union of Hosp. & Health Care Employees v Carey, 557 F2d 278.) II. The court below correctly held that the Dental Society’s petition states a cause of action. (DeGregorio v O’Bannon, 500 F Supp 541; District of Columbia Podiatry Soc. v District of Columbia, 407 F Supp 1259; Simpson v Wilson, 480 F Supp 97; White v Beal, 413 F Supp 1141; Dodson v Parham, 427 F Supp 97; Virginia Hosp. Assn. v Kenley, 427 F Supp 781; Matter of Schlemowitz v Lavine, 75 Misc 2d 529; Alabama Nursing Home Assn. v Califano, 433 F Supp 1325; Becker v Toia, 439 F Supp 324; Becker v Blum, 464 F Supp 152.) III. The State has totally failed to present persuasive grounds for reversal. (Matter of Dairylea Coop. v Walkley, 38 NY2d 6; Matter of Fritz v Huntington Hosp., 39 NY2d 339; New York Tel. Co. v Public Serv. Comm., 29 NY2d 164; Alabama Nursing Home v Harris, 617 F2d 388; Alabama Nursing Home Assn. v Califano, 433 F Supp 1325; Rosado v Wyman, 397 US 397.)
   OPINION OF THE COURT

Kaye, J.

Respondent, the Dental Society of the State of New York, an organization of all but a small percentage of the State’s licensed dentists, by an article 78 proceeding on behalf of its members sought a judgment mandating appellants (the Governor, the Commissioner of the Department of Social Services, and the Commissioner of the Department of Health) to increase the Medicaid dental fee reimbursement schedule. Both the standing of respondent and the justiciability of the claim were challenged below. While Special Term dismissed the petition on the ground that the matters raised are for the Legislature, not the courts, the Appellate Division reversed and reinstated the petition, concluding that respondent has standing and that the petition states a cause of action. We now affirm.

Respondent’s petition asserts that, in electing to adopt the Federal Medicaid law and Federal cost-sharing, the State Legislature in the Social Services Law declared its objective to offer a comprehensive program of high quality dental care for the needy, and that the legislative intention has been undermined by appellant’s refusal to fix a realistic dental fee reimbursement schedule. While the schedule promulgated in 1966 was reasonably related to the actual cost of delivering dental services and induced a great many dentists to provide such services, the petition alleges that owing to skyrocketing costs the dental fee reimbursement schedule is now inadequate, discouraging dentists from participating in the program and frustrating the mandate of the Medicaid law. According to the petition, because of an outdated reimbursement schedule, only 5% of the licensed dentists in this State are Medicaid providers, thus depriving the needy of the equal access to dental services envisioned by the Medicaid law and Social Services Law. The relief requested is a judgment mandating the revision of the reimbursement schedule to a level reasonably reflecting the current cost of delivering dental services.

The standing of an organization such as respondent to maintain an action on behalf of its members requires that some or all of the members themselves have standing to sue, for standing which does not otherwise exist cannot be supplied by the mere multiplication of potential plaintiffs. Additionally, the interests which the organization seeks to protect must be germane to its purposes, the court should be satisfied that the organization is an appropriate one to act as the representative of the group whose rights it is asserting, and neither the relief requested nor the claims asserted must require participation of the individual members. (Hunt v Washington State Apple Adv. Comm., 432 US 333.) It is enough to allege the adverse effect of the decision sought to be reviewed on the individuals represented by the organization (Matter of Douglaston Civic Assn. v Galvin, 36 NY2d 1, 7); the complaint need not specify individual injured parties. (National Organization for Women v State Div. of Human Rights, 34 NY2d 416.)

Respondent’s petition satisfies these criteria for standing. First, it is plain from the petition that certain of respondent’s members would themselves have standing to bring this proceeding. To have standing to challenge the Medicaid reimbursement schedule an individual must be within the zone of interest to be protected by the legislation and must suffer injury from administrative action or inaction. (Matter of Bradford Cent. School Dist. v Ambach, 56 NY2d 158, 164; Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 9.) In the case of actual Medicaid providers, clearly within the zone of interest (Singleton v Wulff, 428 US 106, 112-113), injury in fact need not be demonstrated by out-of-pocket loss. Medicaid providers, who are subject to pecuniary loss if adequate reimbursement schedules are not established, suffer injury in fact if the body charged with setting the proper schedules fails to do its job. “Put another way, the failure properly to conduct the required review (which guarantees that plans which do not meet statutory and regulatory criteria will not be given effect) in itself constitutes injury in fact.” (Hospital Assn. v Toia, 438 F Supp 866, 870, affd 577 F2d 790; see, also, Coe v Hooker, 406 F Supp 1072, 1080.) Respondent alleges that its members include virtually every licensed dentist in the State, and licensed dentists are the sole providers of dental services under Medicaid. Where the organization represents nearly every practicing dentist, its numbers of necessity include providers of Medicaid services, who individually have standing to maintain this claim.

The remaining criteria for association standing similarly appear, from the face of the petition, to be satisfied. The interests sought to be protected by this proceeding are germane to the organization’s purpose, and the organization is an appropriate one to act in a representative capacity. The petition alleges both the individual interest of its provider-members in meeting the escalating costs of delivering dental services and the collective professional interest of dentists in wider participation to make the program effective so that indigent recipients will receive the dental care to which they are entitled. Finally, nothing in the relief requested or the cause of action asserted requires the participation of individual dentists. Respondent thus is a proper person to bring this proceeding.

Appellants’ attack on the justiciability of the claim is likewise misdirected. Appellants’ concerns that the courts are ill equipped to fix reimbursement rates for individual dental services or will be embroiled in the allocation of limited financial resources (see Jones v Beame, 45 NY2d 402) misperceive the thrust of the petition. Respondent does not ask the courts to set fees for dental work or allocate the State’s budget for such services. The question is whether the reimbursement schedule promulgated by the State meets the test set forth in the applicable Federal regulations to which the State, having elected to participate in the program, must conform:

“Each service must be sufficient in amount, duration and scope to reasonably achieve its purpose.” (42 CFR 440.230 [b].)

“The [State] agency’s payments must be sufficient to enlist enough providers so that services under the plan are available to recipients at least to the extent that those services are available to the general population.” (42 CFR 447.204.)

Whether administrative action violates applicable statutes and regulations is a question within the traditional competence of the courts to decide. The relief requested by respondent requires the court neither to fix rates for dental services nor to determine budgetary priorities, and we agree with the court below that, if respondent were to establish its contentions, adequate relief could be afforded without judicial encroachment on executive or legislative prerogatives.

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

Simons, J.

(dissenting). The majority holds today that a professional society has standing to maintain a court challenge to administrative rulings which may or may not affect its members. It has not said so expressly. It rests its decision upon a determination that providers of Medicaid services have standing to maintain this action and that some of the providers are probably members of petitioner society. That is where the rabbit comes out of the hat. The petition does not contain allegations from which it may be determined that the providers have standing nor does it allege that any of the providers are members of plaintiff organization. The majority assume that to be so by empirical intuition because 5% of the dentists in New York State are providers and 87% of the dentists in the State are members of petitioner. Thus, it holds, some aggrieved providers must be members of petitioner. There is nothing before us to support these assumptions. By inferring standing on this record the majority has removed any limits to the concepts of zone of interest and injury in fact and has approved this court rendering, in effect, an advisory opinion on the law. I therefore dissent and vote to reverse the order of the Appellate Division and dismiss the petition.

Petitioner’s claim of standing rests upon the allegations that it is the only State-wide professional association for all licensed dentists, that 87% of them are members, that the society fairly represents the dental profession as a whole and that the Medicaid reimbursement schedule “directly” affects its members. It is then alleged in the petition that “[sjince the Society’s members very closely correspond to the entire class of potentially aggrieved parties” the society has standing to maintain this suit.

Two observations should be made. First, there is nothing in the petition or in the record to establish that providers of dental services have standing to challenge the Medicaid reimbursement rates paid to them (cf. Singleton v Wulff, 428 US 106, 109, 112-113). Second, even if the providers could establish standing to maintain this litigation there is nothing in the petition or record to support the claim that petitioner may represent them in doing so. One might as well maintain that grocers have an abstract right of standing to challenge the rate of assistance payments made to public aid recipients, or, to draw the analogy finer, that the Better Business Bureau has the right to do so on the grocers’ behalf on the assumption that some of the grocers selling to public assistance recipients must be members of the Better Business Bureau. Even the liberal standing requirements of our past decisions do not permit petitioner to maintain the proceeding under such circumstances.

Under New York law a petitioner, if it is to establish standing, must allege that the challenged administrative action will have a harmful effect on it and that the interest asserted is arguably within the zone of interest to be protected by the relevant statute or regulation in question (Matter of Bradford Cent. School Dist. v Ambach, 56 NY2d 158, 164; see, also, Matter of City of New York v City Civ. Serv. Comm., 60 NY2d 436; Matter of Dairylea Coop. v Walkley, 38 NY2d 6). Additionally, the court is required to examine the relevant statutes and precedents to ascertain the presence or absence of a legislative intent to preclude review of the claim (Matter of Bradford Cent. School Dist. v Ambach, supra, at p 164). This formulation of our standing rule is directly traceable to the Federal rule set forth in Data Processing Serv. v Camp (397 US 150, 153). In Data Processing, petitioner providers of data processing services to businesses generally, sought to challenge a ruling of the Comptroller of the Currency permitting national banks, such as respondent bank, as an incident to their banking services, to make data processing services available to other banks and bank customers. The court granted petitioners standing to maintain the action because they had alleged injury in fact and they were within the protected zone of interest. It found that the bank’s competition in the data processing field caused competitive injury, thereby establishing a “case or controversy” under article III of the United States Constitution, and that the interest sought to be protected by petitioners was arguably within the zone of interests to be protected or regulated by the relevant statute. Additionally, the court found no intent on the part of Congress to preclude review of the Comptroller’s rulings. Former Chief Judge Breitel identified the many substantial reasons against applying the Data Processing standard in his dissenting opinion in Matter of Dairylea Coop. v Walkley (supra, at pp 12-13). Nevertheless it has become embedded in our case law and it is too late in the day to change it. Before further liberalizing the rule, however, it is worth noting that the court which originated the zone of interest concept has moved away from it and now relies on a different, more stringent, stándard and references to the zone of interest test are conspicuously absent from its recent decisions (see, e.g., Duke Power Co. v Carolina Environmental Study Group, 438 US 59, 72; and see 94 Harv L Rev 489, 525-526, n 221). Supreme Court decisions now require a plaintiff to allege: (1) the requisite threatened or actual injury (Linda R. S. v Richard D., 410 US 614, 617); (2) a “fairly traceable” causal connection between the claimed injury and the challenged conduct (Duke Power Co. v Carolina Environmental Study Group, 438 US 59, 72, supra); and (3) the likelihood that the injury would “be redressed by a favorable decision” (Simon v Eastern Ky. Welfare Rights Organization, 426 US 26, 38). Thus the court that originally sponsored the zone of interest concept is refining its rule for standing and imposing additional requirements to insure concrete adverseness in the litigation and to regulate the volume of cases before the court.

The majority has also relied on the fact that petitioner is a professional society, citing Matter of Douglaston Civic Assn. v Galvin (36 NY2d 1) and National Organization for Women v State Div. of Human Rights (34 NY2d 416). As it concedes, however, the fact that petitioner is an organization adds nothing to its claim of standing. It must allege that its members, or any one of them, are suffering immediate or threatened harm as a result of the challenged action (Hunt v Washington Apple Adv. Comm., 432 US 333; Warth v Seldin, 422 US 490, 511). Moreover, both cited decisions are distinguishable from this case. In Douglaston we held that petitioner, a civic association of over 1,000 owners and residents, had standing to challenge the grant of a zoning variance which affected the immediate vicinity of members’ residences. We did so, however, without relating petitioners’ interests to a relevant statute, holding that the impact of the variance was within the zone of interest to be protected. Earlier we held that the National Organization for Women had standing to challenge the lawfulness under the Human Rights Law of separate “Male” and “Female” help wanted columns in newspaper classified advertising because it was a recognized organization with a specific interest in the litigation, even though it was conceded that none of the named plaintiffs were refused employment based on sex as a result of the separate listings (National Organization for Women v State Div. of Human Rights, 34 NY2d 416, supra).

The result in Douglaston was appropriate because the harm to the individual members of the association who owned land affected by the grant of the variance was apparent and real. Thus it was irrelevant that the association owned none; it had standing as the alter ego of the individual members. The record in this case does not establish that providers of medical services are members of plaintiff; nonproviders are, but they are not directly affected by the existing Medicaid reimbursement rates and petitioner’s contention that an increase in the rate would induce nonproviders to provide services relies upon speculative possibilities of future aggrievement, not present injury. The NOW case is also distinguishable. In NOW plaintiff based its complaint upon the antidiscriminatory provisions of the Human Rights Law which were specifically enacted to benefit and protect women as a class. The reimbursement statute petitioners challenge does not benefit dentists as a class and it certainly does not benefit dentists who do not provide Medicaid services. The statute was intended to benefit the dentists’ patients, those who cannot afford ordinary dental care.

Petitioner has either failed or is unable to plead facts establishing its standing to sue. The allegations in its petition must state a basis for standing factually and specifically, not in a conclusory or speculative manner (see Roberts, Fact Pleading, Notice Pleading, and Standing, 65 Cornell L Rev 390, 415; see, also, Warth v Seldin, 422 US 490, supra; Albany Welfare Rights Organization Day Care Center v Schreck, 463 F2d 620, cert den 410 US 944). Standing is a threshold jurisdictional issue in every action and proceeding and it should appear clearly from the pleadings. An allegation that society members are “potentially aggrieved” is patently insufficient to. meet any reasonable standard of specificity (see Arlington Hgts. v Metropolitan Housing Corp., 429 US 252). An allegation of harm to Medicaid recipients is similarly unavailing because a party cannot obtain standing on a jus tertii basis (see Gladstone Realtors v Village of Bellwood, 441 US 91, 100). Petitioner has failed to assert any basis to support its claim that it has standing.

This State’s standing requirements, which were never very stringent, are now almost undefined. Where once we held that under our rule standing would be denied only if there was a clear legislative intent to negate review or want of injury in fact to the plaintiff (see Matter of Dairylea Coop. v Walkley, 38 NY2d 6,11, supra), now in the absence of legislative preclusion, standing will be found if any superficial connection can be found between the subject matter in the suit and the petitioner. Injury in fact need not be shown and the limits of the zone of interest concept, which were always unclear, are now amorphous.

The requirement of standing is not a technicality to be palmed off as a minor defect in pleading, easily ignored because it is subject to correction by repleading. Allegations to support standing may be supplied on repleading or they may not. Nothing in this record establishes that this plaintiff can meet the established tests to maintain this litigation and it should be required to prove that it can. Only aggrieved parties should be permitted to sue and unless the plaintiff is aggrieved the court lacks jurisdiction of the cause of action (see Siegel, NY Prac, § 136). The recognition of standing on the pleadings of this case provides a sweeping precedent for the maintenance of litigation by any organization, including the thousands of ad hoc groups formed in response to the aggravation of the moment, if only it can prove that the statute or regulation under attack does not preclude its suit. If this petitioner can challenge the Medicaid reimbursement rates, anyone can.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Meyer concur with Judge Kaye; Judge Simons dissents and votes to reverse in a separate opinion.

Order affirmed, etc.


author: Meyer, J.

text:
    Consolidated Edison Company of New York, Inc., Appellant, v 10 West 66th Street Corporation et al., Respondents.
    Argued February 14, 1984;
    decided March 27, 1984

      POINTS OF COUNSEL

      Charles E. McTiernan, Jr., and Andrew J. Czerepak for appellant.
    I. Since it is an undisputed fact that Con Edison was the tenant in occupancy and lessee of record on the day of presentation, it had the right to purchase its apartment. (Wissner v 15 West 72nd St. Assoc., 87 AD2d 120, 58 NY2d 645; Payn v Lyras, 91 AD2d 557, 59 NY2d 970; Thuna v Di Sanza, 102 Misc 2d 342, 78 AD2d 517; Trachter v Parker 86th Assoc., 115 Misc 2d 271.) II. Con Edison cannot be excluded from purchasing simply because it is a corporation. (Cooper v 140 East Assoc., 27 NY2d 115; Matter of Cale Dev. Co. v Conciliation & Appeals Bd., 94 AD2d 229; Richards v Kaskel, 32 NY2d 524; Wissner v 15 West 72nd St. Assoc., 58 NY2d 645.) III. The landlord-sponsors’ plan neither purports to restrict the statutory rights of tenants in occupancy nor can it have that effect. (Payn v Lyras, 91 AD2d 557, 59 NY2d 970; Cooper v 140 East Assoc., 27 NY2d 115.)

      Steven R. Lapidus and Stanford M. Singer for respondents.
    I. Con Edison, as a corporation, had no right under the Rent Stabilization Code to subscribe for shares under a co-operative offering made solely and specifically to natural persons. (After Six v 201 East 66th St. Assoc., 87 AD2d 153, 57 NY2d 835; Matter of Cortland-Clinton, Inc. v New York State Dept. of Health, 59 AD2d 228; Matter of Walter & Samuels v New York City Conciliation & Appeals Bd., 81 AD2d 212; Matter of Sommer v New York City Conciliation & Appeals Bd., 93 AD2d 481; Matter of Cole Dev. Co. v Conciliation & Appeals Bd., 94 AD2d 229; Eckstein v United States, 452 F2d 1036.) II. Since Con Edison did not tender a subscription agreement, it was not in privity with the sponsor and has no standing to maintain this suit. Summary judgment was, therefore, properly granted in the sponsor’s favor by the court below. (Mobay Chem. Co. v Hudson Foam Plastics Corp., 277 F Supp 413; Hall v Mutual Life Ins. Co., 282 App Div 203, 306 NY 909; Gram v Mutual Life Ins. Co., 300 NY 375.) III. Con Edison’s action for specific performance is barred on grounds of laches.
      (Dunham v Ottinger, 243 NY 423; Schumann v 250 Tenants Corp., 65 Misc 2d 253; Richards v Kaskel, 32 NY2d 524; Matter of Greenthal & Co. v Lefkowitz, 32 NY2d 457; Tuvim v 10 East 30 Corp., 32 NY2d 541; Apfelberg v East 56th Plaza, 78 AD2d 606; Groesbeck v Morgan, 206 NY 385; Eastern Shopping Centers v Trenholm Motels, 33 AD2d 930.) IV. The order of the court below should be affirmed on grounds of public policy.

      Edmund F. Wolk and Dominic M. Lapresi for Lenox Hill Hospital, amicus curiae.

    I. Any tenant lawfully in possession on the date of presentation of a conversion plan is a tenant in occupancy. (Thuna v Di Sanza, 78 AD2d 517; Wissner v 15 West 72nd St. Assoc., 87 AD2d 120, 58 NY2d 645; Burns v 500 East 83rd St. Corp., 90 AD2d 706, 59 NY2d 784; 520 East 81st St. Assoc. v Lenox Hill Hosp., 38 NY2d 525.) II. Any tenant in occupancy has the right to purchase under a conversion plan. (Payn v Lyras, 91 AD2d 557, 59 NY2d 970.) III. The right of a tenant in occupancy to purchase under a conversion plan is not dependent on the tenant’s right to renew. (Matter of Walter & Samuels v New York City Conciliation & Appeals Bd., 81 AD2d 212, 55 NY2d 824; Matter of Cale Dev. Co. v Conciliation & Appeals Bd., 94 AD2d 229; Wissner v 15 West 72nd St. Assoc., 87 AD2d 120, 58 NY2d 645.) IV. The right of a tenant in occupancy to purchase also is not dependent on tax considerations or whether the unit is used as a transitory residence or whether the lease specifies who may occupy the apartment. (Richards v Kaskel, 32 NY2d 524; 520 East 81st St. Assoc. v Lenox Hill Hosp., 38 NY2d 525; Matter of Cale Dev. Co. v Conciliation & Appeals Bd., 94 AD2d 229; Matter of Sommer v New York City Conciliation & Appeals Bd., 93 AD2d 481; Matter of Walter & Samuels v New York City Conciliation & Appeals Bd., 81 AD2d 212, 55 NY2d 824.)
   OPINION OF THE COURT

Meyer, J.

A corporate tenant which qualifies as a “tenant in occupancy” under the Code of the Rent Stabilization Association of New York City, Inc. (Rent Stabilization Code), on the date a co-operative conversion plan is presented to tenants is entitled to purchase in its own name the shares in the co-operative corporation allocated to its apartment, notwithstanding that the plan purports to limit the corporation’s rights to the transfer of its purchase option to an individual who will take in his own right, and notwithstanding that the apartment is not the “primary residence” of the corporation or any of its officers. The order of the Appellate Division should, therefore, be reversed, with costs, and the judgment of Supreme Court reinstated.

Consolidated Edison Company of New York, Inc. (Con Ed), is the tenant of apartment No. 30-H at 10 West 66th Street, which it maintains for the use of its directors, officers and guests. The building was owned by Park Ten Associates (Park Ten) and is rent stabilized. Con Ed’s lease, entered into in July, 1970, has been extended several times, the most recent extension having been signed by Park Ten and Con Ed on September 9, 1979, two months before Park Ten filed its preliminary plan for conversion of the building to co-operative ownership. The plan as finally accepted for filing acknowledged that all 279 apartments in the building were subject to the Rent Stabilization Law, and defendants concede that Con Ed is the tenant in occupancy of a rent-stabilized apartment. The plan limited the offering of shares in 10 West 66th Street Corporation, the co-operative corporation to which ownership of the building has been transferred, to “individuals * * * for such individual’s own account and his personal occupancy of his apartment” and restated that limitation as a representation in the accompanying subscription agreement form, but also stated that “[e]ach tenant in occupancy * * * will have an exclusive right * * * to purchase his apartment.”

After approval of the plan by the Attorney-General it was presented to the tenants, including Con Ed. Within the permitted time Con Ed submitted a subscription agreement executed by Aaron Sadove, together with a form authorizing Sadove to purchase as the designee of Con Ed, and a letter from Sadove stating his contention that the representation in the subscription agreement was inapplicable and of no force or effect in relation to a subscription by an individual on behalf of a corporation. After Park Ten rejected the subscription, Con Ed began the present action for judgment requiring Park Ten and the co-operative corporation to complete the subscription agreement and perform pursuant to the plan. Con Ed having moved and defendants having cross-moved for summary judgment, Special Term granted Con Ed’s motion and denied defendants’ cross motion. The Appellate Division, two Justices dissenting, reversed, holding that a tenant who does not have capacity to compel renewal of its lease is not a bona fide tenant in occupancy. We now reverse and reinstate Special Term’s judgment.

Section 352-eeee (subd 2, par [d], cl [ix]) of the General Business Law provides that “tenants in occupancy on the date the attorney general accepts the plan [for conversion to co-operative or condominium ownership] for filing shall have the exclusive right to purchase their dwelling units or the shares allocated thereto”, and that provision is repeated in essence in section 61 (subd 4, par [b]) of the Rent Stabilization Code. The phrase “tenant in occupancy” is not defined in the General Business Law, the Rent Stabilization Law (Administrative Code of City of New York, tit YY) or the Rent Stabilization Code. The Special Term Justice looked to the City Rent and Rehabilitation Law (Administrative Code, tit Y) and finding in subdivision m of section Y51-3.0 of the Administrative Code a definition of “tenant” which includes a “person entitled to the possession” of the accommodation and in subdivision h a definition of “person” which includes a corporation, concluded that a corporation could qualify as a tenant in occupancy.

Although titles Y and YY of the Administrative Code can properly be read together as statutes in pari materia (McKinney’s Cons Laws of NY, Book 1, Statutes, § 221) there is additional and equally strong support for the conclusion reached by Special Term in section 8605 of McKinney’s Unconsolidated Laws (Local Emergency Housing Rent Control Act, § 5 [L 1962, ch 21, § 1, subd 5, as amd]). The final unnumbered paragraph of that section directs that “no local law or ordinance shall subject to such regulation and control any housing accommodation which is not occupied by the tenant in possession as his primary residence” but limits that direction by the proviso that “such housing accommodation not occupied by the tenant in possession as his primary residence shall continue to be subject to regulation and control as provided for herein unless the city housing rent agency issues an order decontrolling such accommodation, which the agency shall do upon application by the landlord whenever it is established by any facts and circumstances which, in the judgment of the agency, may have a bearing upon the question of residence, that the tenant maintains his primary residence at some place other than at such housing accommodation.” (L 1971, ch 373, § 2.) On the basis of that provision we held in Wissner v 15 West 72nd St. Assoc. (58 NY2d 645, affg for reasons stated in opn at Appellate Division 87 AD2d 120) that a tenant to whom the landlord had granted three successive renewals was a Rent Stabilization Law tenant in possession entitled to purchase the shares allocated to her apartment, even though the landlord could have avoided that result by refusing a renewal lease pursuant to section 54 of the Rent Stabilization Code and seeking decontrol of the premises pursuant to section 8605 because not occupied as a primary residence. By a parity of reasoning, there being nothing in the applicable provisions that explicitly excludes a corporation from tenant in occupancy status, it follows that as the lessee of record on the critical offering date Con Ed had the exclusive right to purchase the shares allocated to apartment No. 30-H even though it would not have had that right had Park Ten succeeded, prior to presentation of its offering plan, in decontrolling the apartment and denying Con Ed a renewal lease on “primary residence” grounds. Nor in our view is it reasonable to conclude, as did the Appellate Division, that the landlord’s failure to follow that procedure and its voluntary renewal of Con Ed’s lease somehow detracts from the bona fides of Con Ed’s status as the “tenant in occupancy.”

Defendants argue, nevertheless, that the plan expressly limited purchase rights to individuals and points to section 61 (subd 4, par [a], cl [v]) of the Rent Stabilization Code as authority for that provision. They suggest, further, that such a provision is essential because section 216 of the Internal Revenue Code (US Code, tit 26) requires that all tenant shareholders of a co-operative corporation be individuals. The plan provision is, however, inconsistent with the legislative direction that “tenants in occupancy on the date the attorney general accepts the plan for filing shall have the exclusive right to purchase their dwelling units or the shares allocated thereto” (General Business Law, § 352-eeee, subd 2, par [d], cl [ix]), which makes no distinction between individual and corporate tenants. Nor does the Rent Stabilization Code provision on which defendants rely help them, for it simply permits a sponsor to count toward the percentage requirement for acceptance of his plan an individual who purchases, with the approval of a corporate tenant in occupancy, the shares allocated to the corporate apartment. Without that provision such an individual purchaser could not be counted for that purpose, but nothing in it suggests an intention to proscribe the purchase by a corporate tenant in occupancy, against whom the sponsor has not seen fit prior to offering its plan to utilize the procedures provided for in section 8605 of McKinney’s Unconsolidated Laws, of the shares allocated to its apartment, or permits the sponsor to restrict the corporate tenant’s statute-given right to purchase (Payn v Lyras, 91 AD2d 557, app withdrawn 59 NY2d 970). Nor, finally, are possible Federal tax consequences under section 216 of the Internal Revenue Code determinative (Richards v Kaskel, 32 NY2d 524, 540).

For the foregoing reasons, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.

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

Order reversed, with costs, and the judgment of Supreme Court, New York County, reinstated.


author: Per Curiam.

text:
    In the Matter of Barbara M. Sims, a Judge of the Buffalo City Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued January 9, 1984;
    decided March 29, 1984

      POINTS OF COUNSEL

      George E. Hairston for petitioner.
    I. Petitioner was denied procedural and substantive due process during the investigation and was the target of a general inquest and fishing expedition by respondent commission. (Matter of Nicholson v State Comm. on Judicial Conduct, 72 AD2d 48, 50 NY2d 597; Whiteside v Kay, 446 F Supp 716.) II. The determination below is arbitrary and capricious as it is not supported by substantial evidence. (Canty v Board of Educ., 312 F Supp 254; Moore v Ross, 502 F Supp 543.) III. This court should reject respondent’s determination that petitioner’s conduct created an “appearance” of impropriety under the facts of this case, since the standard, as applied sub judice, is vague and subjective. (Matter of Spector v State Comm. on Judicial Conduct, 47 NY2d 462; diLeo v Greenfield, 541 F2d 949.) IV. Under the facts of this case, the sanction of censure should be rejected as too severe and harsh, where petitioner was acting in good faith and consistent with local judicial practice. (Matter of Quinn v State Comm. on Judicial Conduct, 54 NY2d 386; Matter of Dixon v State Comm. on Judicial Conduct, 47 NY2d 523.)

      Gerald Stern and Jean M. Savanyu for respondent.
    I. Petitioner’s conduct violated established ethical standards, is properly subject to discipline, and should be condemned. (Matter of Dixon v State Comm. on Judicial Conduct, 47 NY2d 523; Matter of Spector v State Comm. on Judicial Conduct, 47 NY2d 462; Matter of Cunningham, 57 NY2d 270; Matter of Steinberg, 51 NY2d 74; Matter of Shilling, 51 NY2d 397; Matter of Aldrich v State Comm. on Judicial Conduct, 58 NY2d 279.) II. Petitioner was not deprived of due process; the commission’s investigation was properly conducted pursuant to statute and rule. (Matter of Nicholson v State Comm. on Judicial Conduct, 72 AD2d 48, 50 NY2d 597; Matter of Shilling, 51 NY2d 397.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, an attorney, became a Judge of the Buffalo City Court December 27, 1977. Before taking office she practiced law with her husband, also an attorney in the Buffalo area. She initiated this proceeding to review a determination of the State Commission on Judicial Conduct censuring her for certain acts of judicial misconduct occurring during 1978 and 1979, acts by which petitioner appeared to demonstrate favoritism to her husband and his clients. The commission by a divided vote sustained 10 charges against her, with one dissent as to charges II and IX and dismissed one charge, charge I, with one dissent. It voted to censure her with one member voting that she be admonished. We conclude that the 11 charges against petitioner were established by the evidence in the record and that based upon these findings the appropriate sanction is removal from office.

The commission proceedings were commenced on February 3, 1981, when a complaint was served on petitioner charging misconduct. The first charge alleged that petitioner signed a warrant for the arrest of a person involved in an automobile accident with her son. The second charge alleged that petitioner signed an order releasing from custody a defendant who was petitioner’s former client and that petitioner’s attorney husband thereafter represented the defendant. The remaining nine charges alleged that petitioner signed releases for defendants in pending criminal cases, both felonies and misdemeanors, when she knew or should have known that her husband represented the defendant in criminal proceedings pending against each of them.

Following a hearing, the referee appointed by the commission filed a report finding that the first charge involving the warrant should be dismissed because there was insufficient evidence to establish that petitioner knew or should have known that her son was the complainant when she signed the warrant in question. The referee found that of the remaining charges in only one, charge V, did the evidence establish that petitioner’s husband represented the defendant at the time that petitioner signed a release order. However, in each of the other nine charges, the referee found that petitioner’s husband became counsel for the defendants after petitioner signed the release orders. In each case she signed the release papers at home when she was not required to do so and when, the referee found, she should have known that representation of the defendant by her husband was likely to follow. The referee therefore concluded that petitioner’s conduct encouraged defendants to retain her husband thereby creating an appearance of impropriety and the impression that petitioner used her judicial office to benefit her husband’s law practice.

The commission affirmed the referee’s findings sustaining charges II through XI of the complaint, with the dissents noted above, and concluded that petitioner had violated sections 33.1, 33.2 and 33.3 (c) (1) (iv) (presently sections 100.1, 100.2, 100.3 [a] [1] and 100.3 [c] [1] [iv]) of the Rules Governing Judicial Conduct (22 NYCRR) and the similar provisions of Canons 1, 2, 3A (1) and 3C (1) (d) of the Code of Judicial Conduct. The petition followed.

We note at the outset that this court when reviewing a determination of the commission is vested not only with the authority to review the commission’s findings of facts and conclusions of law but also to determine the appropriate sanctions for the misconduct found and to impose a less or more severe sanction (NY Const, art VI, § 22, subd d; Judiciary Law, § 44, subd 9; Matter of Cunningham, 57 NY2d 270, 274; Matter of Steinberg, 51 NY2d 74, 77; Matter of Spector v State Comm. on Judicial Conduct, 47 NY2d 462, 465-466). While we give due deference to the commission’s determination we are obliged to review the correctness of all its findings and conclusions.

The review of this proceeding convinces us that all the charges were supported by the evidence and should be confirmed.

The evidence submitted on charge I established that an information entitled People v “Jane Doe”, charging the defendant with leaving the scene of an accident in violation of subdivision 1 of section 600 of the Vehicle and Traffic Law was presented to petitioner with a proposed arrest warrant annexed for her signature. The complainant was identified as “Frank Sims”, residing at 101 Depew Avenue in Buffalo, New York, and his signature appeared at the bottom of the information. The arrest warrant of the same date charging “Jane Doe” with leaving the scene of an accident was signed by petitioner as a Judge of the City Court of Buffalo. Frank Sims is petitioner’s son and he lived with petitioner and her husband at 101 Depew Avenue at the time. At the hearing the Chief Judge of the City Court demonstrated that when the warrant and information in People v “ Jane Doe” were fastened together as were all informations and warrants, approximately six inches of the information showed below the warrant, and the name of the complaining witness — Frank Sims — was clearly visible.

The evidence established that Frank Sims was involved in an automobile accident in 1979. His father, William Sims, learned about the accident the day it occurred and he instructed his son on “how to go to the warrant clerk and file an information.” He then accompanied him to the warrant clerk’s office at the City Court and introduced him to the warrant clerk. He was with his son for part of the time in the office when the information was filed. Thereafter, Mr. Sims appeared in court with his son on this matter, “not as his attorney,” but as his father. Mr. Sims testified that there was a delay of about one and one-half weeks between the date of the accident and the filing of the information. He testified that the police had investigated the matter and told Frank Sims the name and telephone number of the man who owned the car involved in the accident but the police had been unsuccessful in contacting him, as had Mr. Sims and his son. It was then decided to file an information against “Jane Doe”, as the driver of the vehicle.

Petitioner testified that commonly when a warrant of arrest was presented for her signature, it would be clipped to the information; she presumed it was so attached in this case. Her practice was to look at the warrant and then at the body of the information to see that the charge was “consonant” with that contained in the warrant. She admitted that she signed the warrant for the arrest of “Jane Doe” but she testified that when it was presented to her, she was unaware that her son was the complaining witness, and she did not become aware of it until she was told later.

Petitioner defended her conduct on several grounds. In her view it was the clerk’s responsibility to see that petitioner did not sign the papers “if there was a problem with it.” She also testified that in her opinion it is not wrong for a Judge to sign a warrant on an information signed by the Judge’s son since the complaining witness “is not a party to the action.” Finally, petitioner testified that even if she had seen her son’s signature, the name “Frank Sims” would have meant nothing to her since her son is known at home as “Billy”.

We find the allegations of misconduct contained in charge I sustained by the evidence. Petitioner’s explanation is wholly inadequate to excuse her conduct, particularly when the evidence established that the son lived at home and was counseled in the matter by her husband. Her reliance on the clerk to check the propriety of arrest papers submitted for her signature and her explanation that there was no impropriety in her conduct, in any event, because her son was not a party to the proceeding shows an appalling insensitivity to the responsibilities of her office and a lack of diligence in performing her judicial duties.

With respect to the remaining charges, petitioner challenges the commission’s determination as arbitrary and capricious and lacking the support of substantial evidence. The facts, however, are undisputed. Petitioner and her husband admitted that petitioner’s husband asked petitioner to sign the releases of defendants who subsequently became his clients, that on several occasions the releases were prepared by the husband for petitioner’s signature, that in one case, at least, she may have signed the release in blank. Moreover, it appeared that the release orders were signed at petitioner’s home, even though the evidence before the commission established that a Judge is assigned to Buffalo City Court on the weekends and that the other Judges of that court are not obligated to consider bail applications made to them at home in the evenings or on the weekends. The commission also found that commonly Mr. Sims did whatever petitioner asked in the preparation of a release order, calling the jail to ask for information about the defendant and preparing the release papers; that even when petitioner obtained the information and prepared the release order, her husband “[knew] what was going on.”

The unmistakable impression to be gathered from this conduct was that petitioner and her husband were acting as a team, that because of the Judge’s prior association with some of the defendants and because of her husband’s relationship to her, special favor and consideration could be obtained in the courts through retention of the Judge’s husband.

Notwithstanding these findings petitioner disputes any wrongdoing. Indeed she concedes executing over 100 releases at her home during her tenure in office. Her defense is that such conduct was permissible, that the evidence before the referee established that in only 11 of these cases was her husband retained by the defendant and her husband testified that frequently his fee went unpaid. Based upon this evidence she contends that the commission failed to establish any pattern of misconduct and further that it failed to establish any quid pro quo for her actions. She points out that none of the defendants appeared before her after her husband’s retainer and she insists that in each case the reasons for her husband’s retainer may be explained easily by other circumstances. Petitioner was not charged with misconduct in fact, however, but with conduct that gave the appearance of impropriety. Her claim that her actions were appropriate in these instances displays a serious failure to appreciate the obligations of judicial office and the necessity for Judges to maintain, by their conduct, public confidence in the courts and in judicial office by avoiding situations which cast doubt on their independence and impartiality. The evidence that petitioner failed to meet this standard and violated established rules is overwhelming and the commission’s findings of misconduct in charges II through XI must be accepted.

In view of these findings the commission’s determined sanction of censure must be rejected. Its conclusions are not disregarded lightly and removal is not normally to be imposed for poor judgment, even extremely poor judgment (see Matter of Shilling, 51 NY2d 397, 403). Petitioner’s conduct in these instances, however, transcends poor judgment. Her actions suggested favoritism to her family and her husband’s clients, they were known to litigants, court personnel and jail employees alike and they were not isolated but extended over a period of two years, continuing even after petitioner was on notice that the commission considered her actions in executing releases improper and had instituted proceedings to investigate her. Moreover, at the hearing petitioner demonstrated that she still recognized no possibility that improper appearances existed because of her conduct. Those released by petitioner during the period under investigation included a defendant who was a client of her husband at the time she signed the releases, one who had been a former client of hers, a client and two former clients of her husband, defendants whose release was sought by a former client of her husband and an acquaintance of her husband. Indeed, in one instance, in the same telephone call, a defendant’s family member got a commitment from petitioner to release the defendant and then, after petitioner turned the telephone over to her husband, hired petitioner’s husband to represent the defendant. In another instance a defendant’s release was made upon the husband’s request. Thereafter petitioner’s husband appeared in court with the defendants. These repeated public demonstrations of co-operation between a Judge and her lawyer husband involving criminal proceedings in the court in which she sits as a Judge may not be tolerated or excused. Petitioner’s failure to acknowledge any appearance of wrong and the fact that she granted some applications after a commission complaint had been filed and she knew that she was being investigated for these practices only compound her misconduct (see Matter of Shilling, 51 NY2d 397, 404, supra).

Nor do we accept the contention that petitioner’s conduct is mitigated by her inquiry of the Chief Judge of City Court and his response to her. She wrote him principally concerning circumstances in which she was called at home to execute a release in a case in which there was a personal conflict. He responded that when assigned to court she was obligated to make a bail judgment in such cases without disqualification. He did not authorize or excuse executing releases at home on nights or weekends when petitioner was not assigned.

Petitioner also contends that she was denied her rights to procedural and substantive due process during the commission’s investigation. Contrary to her assertions, the requirement that the commission file an administrator’s complaint prior to the commencement of an investigation was fulfilled (22 NYCRR 7000.2). The filing of the second and third complaints by the commission was a response to the discovery of further possible instances of misconduct uncovered in the course of the investigation of the first complaint and was permissible. The investigation was thus based on adequate factual and legal requirements as required by the Judiciary Law (§ 44, subd 2) and the commission’s rules (see Matter of Nicholson v State Comm. on Judicial Conduct, 72 AD2d 48, mod 50 NY2d 597; see, also, Matter of New York State Comm. on Judicial Conduct v Doe, 61 NY2d 56).

Finally, petitioner contends that the ethical mandate that Judges avoid even an appearance of impropriety is unconstitutionally vague and will result in her punishment for acts which she could not know were proscribed. We have repeatedly upheld the appearance of impropriety rules and stated that Judges may be held to this admittedly high standard of conduct in performing their duties or even when performing nonjudicial duties (see Matter of Aldrich v State Comm. on Judicial Conduct, 58 NY2d 279, 283; Matter of Cunningham, 57 NY2d 270, 274-275, supra; see, also, Matter of Shilling, 51 NY2d 397, supra; Matter of Lonschein, 50 NY2d 569, 572; Matter of Spector v State Comm. on Judicial Conduct, 47 NY2d 462, 469, supra). When a Judge acts in such a way that she appears to have used the prestige and authority of judicial office to enhance personal relationships, or for purely selfish reasons, or to bestow favors, that conduct is to be condemned whether or not the Judge acted deliberately and overtly (Matter of Steinberg, 51 NY2d 74, 81, supra). The record before us establishes that petitioner violated that standard.

For the foregoing reasons we find the charges against petitioner sustained and we direct that she be removed.

Accordingly, the determined sanction of censure should be rejected, the sanction of removal imposed and Barbara M. Sims removed from the office of Judge of the Buffalo City Court.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion.

Determined sanction of censure rejected, without costs, sanction of removal imposed and Barbara M. Sims is removed from the office of Judge of the Buffalo City Court.

       “§ 33.1 Upholding the independence of the judiciary. An independent and honorable judiciary is indispensable to justice in our society. Every judge shall participate in establishing, maintaining, and enforcing, and shall himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Part shall be construed and applied to further that objective.
      “§ 33.2 Avoiding impropriety and the appearance of impropriety, (a) A judge shall respect and comply with the law and shall conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
      “(b) No judge shall allow his family, social, or other relationships to influence his judicial conduct or judgment.
      “(c) No judge shall lend the prestige of his office to advance the private interests of others; nor shall any judge convey or permit others to convey the impression that they are in a special position to influence him. No judge shall testify voluntarily as a character witness.
      “§ 33.3 Impartial and diligent performance of judicial duties. The judicial duties of a judge take precedence over all his other activities. Judicial duties include all the duties of a judicial office prescribed by law. In the performance of these duties, the following standards apply: * * *
      “(c) Disqualification. (1) A judge shall disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to circumstances where:
      * * *
      “(iv) he or his spouse, or a person within the sixth degree of relationship to either of them, or the spouse of such a person: * * *

        “(b) is acting as a lawyer in the proceeding;
      “(c) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding”.


text:
    The People of the State of New York, Respondent, v Ralph H. Drake, Jr., Appellant.
    Argued February 16, 1984;
    decided March 29, 1984

      POINTS OF COUNSEL

      Henry Mark Holzer and Robert A. Becher for appellant.
    I. Defendant’s conviction for grand larceny by false pretenses must be reversed because contrary to the indictment — charging him with stealing portions of two salary checks “by presenting a false time card” — the People’s own uncontradicted evidence showed that the State issued the checks before it. saw the time card. (People v Hart, 35 Misc 182; People v Henning, 42 AD2d 286; People v Lobel, 298 NY 243; People v Hubbard, 10 AD2d 735; People v Levitas, 40 Misc 2d 331; People v Mancuso, 26 AD2d 292, 27 AD2d 643, 22 NY2d 679, cert den sub nom. Morganti v New York, 393 US 946; People v Trotta, 30 AD2d 562; People v Bauer, 32 AD2d 463, 26 NY2d 915.) II. The 39-month delay — to which he neither contributed nor consented — between defendant’s conviction and his sentencing was unduly lengthy, illegal and/or unconstitutional, and that delay must cause his conviction to be reversed and the indictment to be dismissed. (People v Warrelman, 42 Misc 2d 783; People ex rel. Harty v Fay, 10 NY2d 374; People v Newcombe, 18 AD2d 1087; Pollard v United States, 352 US 354; United States v Tortorello, 391 F2d 587; Juarez-Casares v United States, 496 F2d 190.)

      Sol Greenberg, District Attorney (F. Patrick Jeffers of counsel), for respondent.
    I. The proof established that defendant was guilty of grand larceny in the third degree. (People v Wachowicz, 22 NY2d 369; People v Cullen, 50 NY2d 168.) II. The delay in sentencing was not unreasonable. (People ex rel. Harty v Fay, 10 NY2d 374; Matter of Braustein v Frawley, 64 AD2d 772; People ex rel. Weingard v Casscles, 40 AD2d 530.)
   OPINION OF THE COURT

Simons, J.

Defendant is employed as a supervisor in the New York State Department of Taxation and Finance. In May, 1976, he was called for jury duty at a term of the Albany County Court. Under the policy prevailing at the time, State employees serving on jury duty received fully compensable leave time for the days actually served but were expected to return to work when the court did not require their presence. The prosecution claims that defendant stole portions of two salary checks by presenting a false time card which indicated that he was on jury duty on specified days when in fact he was not. It claims that defendant served as a juror for only four days but marked on his time card that he had served over 10 days. Finding that defendant was unlawfully paid for that six-day period, which represented noncompensable and unauthorized leave time, the Grand Jury indicted him for larceny by false pretenses (Penal Law, § 155.30, subd 1; § 155.05, subd 2, par [a]). Following a jury trial, he was found guilty of grand larceny in the third degree. Some 39 months later, he was sentenced to an unconditional discharge and thereafter the judgment was unanimously affirmed by the Appellate Division (92 AD2d 1011).

Defendant contends before this court that his conviction rests upon insufficient evidence and, alternatively, that the judgment must be vacated and the indictment dismissed because of the court’s unreasonable delay in sentencing him. Notwithstanding that defendant received the money before the false statements were made, the evidence before the jury sufficiently established that defendant received moneys of the State in the form of salary because of the State’s reliance upon his false statements concerning jury service. Because of the State’s system of payment, money previously erroneously paid was deducted upon examination of the employee’s time card. As a result of defendant’s false statements no deductions were made from his subsequent checks as was routinely done in such cases. Defendant’s second point requires reversal, however, and remittitur to the trial court for a hearing to determine whether the unreasonable delay was excusable (CPL 470.40, subd 1; 470.20). Once a person has been criminally charged and prosecuted, a burden rests upon the prosecutor and the court to conclude the proceedings with reasonable promptness and the failure to do so may result in a loss of jurisdiction. It is no excuse that the delay may have been occasioned by extended pleas for leniency. The prosecution having concluded, the court must pass sentence and enter judgment. If it fails to do so, the prosecutor may compel sentence by an article 78 proceeding (see Matter of Hogan v Bohan, 305 NY 110), but in all cases the initiative rests with the court and the prosecution, not the defendant. The delay of 39 months in this case was unreasonable and absent facts excusing it, the indictment must be dismissed.

I

Initially defendant challenges the legal sufficiency of the evidence to support a conviction of larceny by false pretenses. The crime is defined in section 155.05 (subd 2, par [a]) of the Penal Law which expressly incorporates the common-law definition (see, also, People v Churchill, 47 NY2d 151). To convict, the prosecutor was required to prove that defendant obtained title or possession of money or personal property of another by means of an intentional false statement concerning a material fact upon which the victim relied in parting with the property (see People v Miller, 169 NY 339, 351; LaFave & Scott, Criminal Law, § 90, pp 655-672). It has been held that the crime is committed when a party obtains money by presenting false and fraudulent vouchers for work done, materials purchased or services rendered (see People v Hudson Val. Constr. Co., 165 App Div 626, affd 217 NY 172; see, also, People v Freeman, 133 App Div 630, revd on other grounds 203 NY 267).

The evidence at trial established that defendant received money wrongfully. We are concerned only with the element of reliance and whether the money was paid to him by the State relying upon the false representations in his time card. To contrast this case and People v Hudson Val. Constr. Co. (supra), the checks in Hudson Val. were delivered to defendant construction company after the alleged false voucher was submitted. The distinction does not affect culpability, however, because the trial evidence established that had defendant correctly reported his absences from work, the State would have deducted a portion of his salary from a subsequent paycheck. Thus, as noted by the Appellate Division, the larceny was complete and arguably only the date of its occurrence remained unsettled. It occurred during the pay period covering the unauthorized absences or alternatively in the next period when the deduction normally would have been made. In either event, defendant wrongfully received funds from his employer because of his false statements. Defendant has raised no objection to the precise date of the crime’s occurrence, either here or in the courts below, and the discrepancy is not fatal because time is not a material element of the crime charged (see People v Feldman, 50 NY2d 500, 504; People v La Marca, 3 NY2d 452, 458-459, cert den 355 US 920).

II

Defendant was indicted on June 15,1978, trial began on December 4, 1978, and a guilty verdict was rendered on December 5, 1978. Ten days later, defense counsel moved to dismiss the indictment in the interest of justice and moved for a new trial. His motion was denied in all respects. On March 19, 1982, the day before sentencing, defense counsel moved to dismiss the proceeding on the ground that the court had lost jurisdiction over the defendant because of unreasonable delay. The motion was denied. The next day, the Judge, implying that neither he nor the People were responsible, stated cryptically that the 39-month delay resulted from the fact that three different defense attorneys had approached him and requested that he grant an order of dismissal in this case as he had done in the case of a codefendant. He then sentenced defendant to an unconditional discharge. The court’s response to the motion hardly excused a delay of over three years.

Defendant is entitled to be promptly sentenced after conviction; entry of judgment may not be “indefinitely deferred or postponed” (Matter of Hogan v Bohan, 305 NY 110, 112, supra; see, also, People ex rel. Prosser v Martin, 306 NY 710). To this end, CPL 380.30 (subd 1) requires that “[sjentence must be pronounced without unreasonable delay” and we have held that a failure to do so results in a loss of jurisdiction over the defendant (People ex rel. Harty v Fay, 10 NY2d 374; but see Matter of Weinstein v Haft, 60 NY2d 625, affg 93 AD2d 786).

In People ex rel. Harty (supra), relator entered a plea of guilty to the crime of robbery in the second degree on February 10, 1953, in Bronx County. The court set a date in April, 1953, for sentencing, but relator was tried on another robbery charge in March and subsequently pleaded guilty to still another robbery in Westchester County. Upon his plea, he was sentenced to an indefinite term of five years at Elmira Reception Center and later transferred to West Coxsackie. Although certain warrants had been lodged against relator as detainers, the Bronx County authorities took no action concerning the 1953 indictment and plea until 1958 when he was released on parole and brought in on other charges. On November 19, 1959, six and one-half years after his 1953 plea, relator was sentenced in Bronx County. In a habeas corpus proceeding, he sought to invalidate the sentence on the ground of unreasonable and unexplained delay. We granted the petition and held that the long and unnecessary delay in imposing sentence was not only error but resulted in a loss of jurisdiction. The rule followed is not unlike that underlying speedy trial rules generally. Indeed, many State and Federal courts, relying upon dictum in Pollard v United States (352 US 354), hold that the Sixth Amendment guarantee of a speedy trial applies to postconviction proceedings as well and apply the speedy trial criteria set forth in Barker v Wingo (407 US 514), i.e., the length of the delay, reason for the delay, the defendant’s assertion of the right and prejudice to him, to assess claims of unreasonable delay in imposing sentence (see, e.g., Gonzales v State, 582 P2d 630 [Alaska]; Reed v State, 295 A2d 657 [Me]; State v Cunningham, 405 A2d 706 [Del]; United States v Reese, 568 F2d 1246; Cessna v Commonwealth, 465 SW2d 283 [Ky]; Erbe v State, 276 Md 541).

There are perceptible distinctions, however, between speedy trial concepts and the requirement of timely sentencing. Speedy trial requirements focus upon the need for a prompt trial so that witnesses are available, possible exoneration is swift and the public’s interest in deliberate prosecution is fulfilled. After a defendant is convicted, the focus shifts to the defendant’s right to appeal, his eligibility for pardon and commutation of sentence, and, if a retrial becomes necessary, the danger that witnesses may be unavailable. Of equal significance in the need for timely sentencing is the public perception that prompt and certain punishment has been imposed upon a defendant found guilty, uninfluenced by legally irrelevant considerations. Thus, we have rested our rule requiring prompt sentencing on broader grounds, inferring that delay inevitably results in prejudice to the defendant.

Our recent decision in Matter of Weinstein v Haft (60 NY2d 625, supra) provides a useful counterpoint to People ex rel. Harty (supra). In Matter of Weinstein, petitioner pleaded guilty to falsifying business records in the first degree on July 9, 1979. Between that date and September 17,1982, petitioner made several motions, underwent surgery and requested that sentencing be adjourned, repeatedly bringing her medical condition into issue. On September 17,1982, the court adjourned the matter until September 16, 1983, in order to consider petitioner’s medical reports. Then, more than three years after the plea, petitioner commenced an article 78 proceeding contending that the court had lost jurisdiction of the case due to unreasonable delay in sentencing her. Her petition was dismissed. Although delays of similar duration had been held to be unreasonable (see People v Newcombe, 18 AD2d 1087; Juarez-Casares v United States, 496 F2d 190), we rejected petitioner’s claim because the period of delay was at her behest, thereby recognizing that the passage of time standing alone does not bar imposition of sentence or require a defendant’s discharge (see Welsh v United States, 348 F2d 885). It is unexcusable delay that does so. If the delay is caused by legal proceedings or other conduct of the defendant which frustrates the entry of judgment, it is excusable (see Matter of Weinstein v Haft, supra; Matter of Root v Kapelman, 67 AD2d 131, mot for lv to app den 47 NY2d 706 [a delay of several years did not result in loss of jurisdiction where defendant absconded for five years]). Conversely, even relatively long delays occasioned by the State have been excused for good cause (see, e.g., People ex rel. Weingard v Casscles, 40 AD2d 530 [a 19-month delay was held not to be unreasonable because of understaffed Probation Department]; People v Gibson, 39 AD2d 947 [a one-year delay was held not to be unreasonable because of a shortage of Probation Department staff and large number of pending cases]). But if the delay is the result of judicial or prosecutorial negligence or mistake, a loss of jurisdiction results and the indictment must be dismissed (People v Monaghan, 34 AD2d 815 [a seven-year delay in sentencing was held to be unreasonable inasmuch as the prosecutor made no effort to extradite defendant, serving time in another State on unrelated charges, and bring him before the court]; People v Newcombe, 18 AD2d 1087, supra [a four-year delay was held to be unreasonable where defendant, serving time on Federal charges, could have been produced for sentencing earlier]). In People ex rel. Harty the six and one-half year delay was considered per se unreasonable, but significantly in that case the Bronx County authorities made no real effort to sentence defendant earlier or to account for some of the delay. The duty to do so rested upon them. The court specifically rejected the contention that defendant was required to demand sentence (see 10 NY2d, at p 377).

In sum, whether dismissal is warranted depends upon the length of the delay and the reasons for it. Generally, where the delay is long and unexplained, the courts will hold it unreasonable (see People ex rel. Harty v Fay, supra; People v Monaghan, supra; People v Newcombe, supra). Conversely, where the delay is not protracted and plausible reasons are offered to explain it, the courts hold that it is not unreasonable. When there has been an extended delay and there are plausible reasons for it, the various factors involved must be balanced. In contrast with the approach taken in other States, however, the New York rule assumes the defendant has been prejudiced by unreasonable delay (compare People ex rel. Harty v Fay, 10 NY2d 374, supra, with State v Steelman, 126 Ariz 19). He need not prove it. Nor is he required to take affirmative measures and demand that the court sentence him (cf. Cessna v Commonwealth, 465 SW2d 283 [Ky], supra). That burden rests solely with the State and its agents.

Turning to this appeal, we conclude that the delay of 39 months was unreasonable and that unless excused it resulted in a loss of jurisdiction requiring dismissal of the indictment. The record before us reveals no credible effort to explain the delay nor does it contain adjournments for receiving matters in mitigation of the proposed sentence. The court made an allusion at sentencing to extrajudicial pleas for leniency on behalf of the defendant, but no effort was made to particularize the nature of those contacts or their duration. Such extrajudicial contacts are to be discouraged, but regardless of whether the pleas for leniency appear on the record or not, the delay was extensive and unreasonable unless excused.

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

Order modified and case remitted to Albany County Court for further proceedings in accordance with the opinion here and, as so modified, affirmed.