author: Alexander, J.

text:
    In the Matter of Ann Rader Troitino Johnston (Admitted as Ann Rader Troitino), an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Argued February 9, 1990;
    decided March 27, 1990

      POINTS OF COUNSEL

      Neal S. Comer for appellant.

      Richard M. Maltz and Hal R. Lieberman for respondent.
   OPINION OF THE COURT

Alexander, J.

Appellant Johnston was convicted after a jury trial in Harris County, Texas, of involuntary manslaughter in the first degree, a felony offense (Texas Penal Code § 19.05 [a] [2]). By reason of this conviction and pursuant to Judiciary Law § 90 (4) (b) and (e), the Appellate Division, upon application of the Departmental Disciplinary Committee, ordered her name stricken from the roll of attorneys. Leave to appeal to this court was granted by the Appellate Division.

I

Judiciary Law § 90 (4) presently provides for the automatic disbarment of an attorney convicted of a "felony”, which is defined as any criminal offense classified as a felony under New York law or "any criminal offense committed in any other state, district, or territory of the United States and classified as a felony therein which if committed within this state, would constitute a felony in this state” (Judiciary Law § 90 [4] [e]). A felony committed in another State which would not be classified as a felony in New York is a "serious crime” (Judiciary Law § 90 [4] [d]) and subjects an attorney so convicted to temporary suspension (Judiciary Law § 90 [4] [f]) and ultimately, after a hearing, to a final order of suspension, censure or removal from office (Judiciary Law § 90 [4] [g]).

The statute’s present provision for automatic disbarment only upon conviction of a foreign felony which would also constitute a felony in this State is the result of an amendment to the statute enacted in 1979 (L 1979, ch 674, § 1). Prior to its amendment, Judiciary Law §90 (4) provided for automatic disbarment upon an attorney’s conviction of a "felony”, which was not further defined by the statute. Construing the prior statute, we held that the conviction of any Federal felony was sufficient to compel automatic disbarment, even though "there [may be] no felony analogue under our State statutes matching the Federal felony.” (Matter of Thies, 45 NY2d 865, 866 [opn Per Curiam].) The dissenters in Thies criticized the rule as unduly harsh and an unwarranted extension of the law of automatic disbarment (45 NY2d, at 867 [Wachtler, Fuchsberg, and Cooke, JJ., dissenting]; see, Matter of Donegan, 282 NY 285, 292). In Matter of Chu (42 NY2d 490, 494) we had also upheld automatic disbarment for conviction of a Federal felony, but noted the existence of a New York felony "of substantially the same elements.” The Legislature amended the statute in response to our decisions in Chu and Thies, moved by a concern that conviction of a relatively minor offense denominated a felony in another jurisdiction but with no New York analogue would be "sufficient cause” for automatic disbarment (Governor’s Mem of approval, L 1979, ch 674, 1979 McKinney’s Session Laws of NY, at 1822; see also, Matter of Margiotta, 60 NY2d 147, 150, n 1).

On the two occasions we have had since the amendment to consider its reach and effect, we have observed that "the felony in the other jurisdiction need not be a mirror image of the New York felony, precisely corresponding in every detail * * * though it must have essential similarity.” (Matter of Cahn, 52 NY2d 479, 482, citing Matter of Chu, 42 NY2d, at 492, supra; see also, Matter of Margiotta, 60 NY2d, at 150, supra.) In Margiotta, we held that a conviction of extortion under the Hobbs Act (18 USC § 1951 [b] [2]) was essentially similar to the New York felony of larceny by extortion (Penal Law § 155.05 [2] [e] [viii]). We concluded that the elements of both statutes were essentially the same even though the New York statute required proof of conduct instilling fear in the victim and the Federal felony could be committed upon a showing that the defendant acted under color of State law, reasoning that the Federal statute reflected the common-law rule that "the element of fear is implicit when extortion is accomplished by one acting under color of [State] law.” (Matter of Margiotta, 60 NY2d, at 151, supra.) Thus, as in Matter of Chu (supra), the elements of the crimes were substantially the same.

Relying on these precedents, petitioner, the Departmental Disciplinary Committee, contends that the Texas felony of involuntary manslaughter, as defined in Texas Penal Code § 19.05 (a) (2), is essentially similar to the New York felony of vehicular manslaughter, defined in New York Penal Law § 125.12. The Appellate Division agreed and ordered appellant’s automatic disbarment.

On this appeal, appellant contends that the Texas and New York felonies are dissimilar in two significant respects — the level of intoxication necessary to commit the crime and the culpable mental state required. We agree, and for the reasons that follow, reverse the order of the Appellate Division.

II

Our analysis must begin with an examination of the Texas and New York statutes. In defining the third degree felony of involuntary manslaughter, Texas Penal Code § 19.05 provides:

"(a) A person commits an offense if he:
"(1) recklessly causes the death of an individual; or
"(2) by accident or mistake when operating a motor vehicle * * * while intoxicated and, by reason of such intoxication, causes the death of an individual.”
"Intoxication” is defined to mean "that the actor does not have the normal use of his mental or physical faculties by reason of the voluntary introduction of any substance into his body” (Texas Penal Code § 19.05 [b]).

The Texas Court of Criminal Appeals has held that to establish involuntary manslaughter under section 19.05 (a) (2), the State must prove only that the defendant operated a motor vehicle while intoxicated and, by "accident or mistake” caused the death of that individual by reason of that intoxication (Daniel v State, 577 SW2d 231, 233). The words "accident or mistake” have been construed by the court to mean "unintentional” (id.), and the offense may be established without proof of any culpable mental state (Ex Parte Ross, 522 SW2d 214, 218). Although Ormsby v State (600 SW2d 782, 783) held that criminally negligent homicide (Texas Penal Code § 19.07 [a]) is a lesser included offense of involuntary manslaughter as defined in Texas Penal Code § 19.05 (a) (2), this is because the conduct of driving while intoxicated and causing a death thereby is, under Texas law, recklessness per se (Guerrero v State, 605 SW2d 262, 264; see also, Searcy & Patterson, 1973 Practice Commentary, Vernon’s Texas Penal Code Annot § 19.05, at 110 [1989]). There is no requirement under section 19.05 (a) (2) that any culpable mental state be alleged or proven (Guerrero v State, 605 SW2d, at 264, supra).

And while Texas requires proof that the death was caused by the actor’s intoxication (Daniel v State, 577 SW2d, at 233, supra), the proof of intoxication need show no more than "that the actor does not have the normal use of [] mental or physical faculties by reason of the voluntary introduction of any substance into his body” (Lockhart v State, 108 Tex Crim 597, 1 SW2d 894, 895). Where the actor suffers such a loss of the normal use of mental or physical faculties "to any degree”, intoxication is established under Texas law (id.; Parr v State, 575 SW2d 522; Texas Criminal Practice Guide § 124.04 [2], at 124-18.1 [Teague & Helft 1989]).

The New York statute found by the Appellate Division to be "essentially similar” to the Texas statute is Penal Law § 125.12, which defines second degree vehicular manslaughter as follows:

"A person is guilty of vehicular manslaughter in the second degree when he:
"(1) commits the crime of criminally negligent homicide as defined in section 125.10, and
"(2) causes the death of such other person by operation of a vehicle in violation of [Vehicle and Traffic Law § 1192 (2), (3) or (4)] * * * Vehicular manslaughter in the second degree is a class D felony.”

Criminally negligent homicide is committed when "with criminal negligence, [one] causes the death of another person” (Penal Law § 125.10). One acts with criminal negligence "with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation” (Penal Law § 15.05 [4]). Subdivisions (2), (3) and (4) of Vehicle and Traffic Law § 1192 prohibit the operation of a motor vehicle by any person having a blood alcohol level of .10% or more (subd [2]), being in "an intoxicated condition” (subd [3]), or while his ability is "impaired by the use of a drug” (subd [4]). Vehicle and Traffic Law § 1192 (1), the violation of which is not sufficient to support a conviction for vehicular manslaughter, proscribes the operation of a motor vehicle while one’s ability is "impaired by the consumption of alcohol”.

The Appellate Division reasoned that the Texas and New York statutes were "essentially similar” both as to the necessary level of intoxication and the proof of a culpable mental state. We disagree.

Unlike the Texas statute as it existed at the time of the offense here, the New York Legislature has differentiated between separable offenses based upon the degree of impairment caused by alcohol ingestion (see, Vehicle and Traffic Law § 1192 [1], [2], [3]; People v Farmer, 36 NY2d 386, 390). We have held that impairment under subdivision (1) means that the actor "by voluntarily consuming alcohol * * * has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a responsible and prudent driver.” (People v Cruz, 48 NY2d 419, 427 [emphasis added].) The standard for determining intoxication is whether the consumption of alcohol has rendered him or her incapable of performing various mental or physical acts which an average person would be able to do (id.). Intoxication, as necessary to establish a violation of Vehicle and Traffic Law § 1192 (2) or (3), "is a greater degree of impairment which is reached when the driver has voluntarily consumed alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a motor vehicle as a reasonable and prudent driver.” (Id., at 428; see also, People v Ottomanelli, 107 AD2d 212 [Titone, J. P., participating]; People v Bradford, 96 Misc 2d 298, 300; People v Miller, 83 Misc 2d 118, 119.)

Thus, the New York standard for determining "intoxication” is significantly higher than the standard in Texas. Indeed, the Texas standard, requiring proof of intoxication "to any degree” (Lockhart v State, 1 SW2d, at 895, supra) more nearly approximates the New York standard for impairment by reason of alcohol consumption pursuant to Vehicle and Traffic Law § 1192 (1), a level of impairment which is not sufficient under New York law to support a felony conviction for vehicular manslaughter. Moreover, the Texas statute focuses entirely upon the subjective tolerance of the individual in determining intoxication. The New York test, by contrast, is objective and measures the actor’s ability to employ physical and mental faculties against that of a reasonable prudent driver. We conclude therefore, that the elements of intoxication in the Texas and New York felonies are not "essentially similar”. Indeed, conduct which would not be a felony in New York — causing a death by operating a motor vehicle while "impaired” by the consumption of alcohol — would constitute a felony under the Texas statute which appellant has violated.

The Texas and New York felonies also differ significantly as to the culpable mental state required. No proof of a culpable mental state is required to establish the Texas felony of involuntary manslaughter; rather, proof that the actor’s intoxication caused a death constitutes recklessness as a matter of law (Guerrero v State, 605 SW2d, at 264, supra). A conviction for vehicular manslaughter in New York requires proof that the actor’s intoxication caused a death and that the actor acted with criminal negligence (see, Penal Law § 125.12). It has long been the rule in this State that proof of intoxication alone is insufficient to establish criminal negligence and that the People must also show that the "intoxication affected [the defendant’s] physical and mental capacity to the extent that it caused him to operate his vehicle in a culpably reckless manner” (People v Bast, 19 NY2d 813, 815).

Thus we conclude that while both the Texas and the New York statutes are directed at the evil of drunken driving, the elements of the statutes and the proof required thereunder are not essentially similar. Automatic disbarment, therefore, is unwarranted.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to that court for such further proceedings as may be appropriate.

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

Order reversed, with costs, and matter remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

       In 1987, after the date of the incident underlying appellant’s conviction, the Texas statute was amended to define intoxication as not having the normal use of one’s mental or physical faculties or having a blood alcohol concentration of .10% or more. No blood alcohol test was administered to appellant in this case.


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    Barbara Jiggetts et al., on Behalf of Themselves, Their Children, and All Others Similarly Situated, Appellants, v William J. Grinker, as Commissioner of the New York City Department of Social Services, et al., Defendants, and Cesar Perales, as Commissioner of the New York State Department of Social Services, Respondent.
    Argued February 7, 1990;
    decided April 3, 1990

      POINTS OF COUNSEL

      Matthew Diller, Kalman Finkel, Helaine M. Barnett, Jane E. Booth, Kathleen A. Masters, Christopher D. Lamb, Mary Zulack, Maxwell Gould and Marie-Elena Ruffo for appellants.

      Robert Abrams, Attorney-General (Clifford A. Royael, O. Peter Sherwood and Peter H. Schiff of counsel), for Cesar Perales, respondent.

      Thomas H. Moreland, Jeffrey S. Trachtman, Shirley Traylor and Juan Cartagena for Citizen’s Committee for Children and others amici curiae.

      Allan L. Gropper, Joan Morgan McGivern, Andrew P. Langhoff and Louis A. Craco for Project on the Homeless of the Association of the Bar of the City of New York, amicus curiae.

   OPINION OF THE COURT

Simons, J.

Plaintiffs are recipients of public assistance in the form of Aid to Families with Dependent Children (ADC) residing in New York City whose shelter costs exceed the maximum allowance payable to them under the Department of Social Services schedules (see, 18 NYCRR 352.3). Defendants are the State and New York City Commissioners of Social Services, defendants Perales and Grinker, and plaintiffs’ landlords. Plaintiffs allege that present levels of shelter allowances are inadequate to pay their rent, that as a result they are threatened with eviction and are unable to find alternative housing and are thereby prevented from raising their children in their homes. They allege that defendant Commissioners have a statutory and constitutional duty to provide "adequate” shelter allowances, that they have failed to fulfill that duty and have established allowances that are arbitrary and capricious because they no longer bear a reasonable relation to the cost of housing in New York City.

After the complaint was served, defendants moved to dismiss for failure to state a cause of action. Supreme Court denied the motion and granted plaintiffs various items of intermediate relief. On cross appeals, the Appellate Division reversed the order of Supreme Court and dismissed the complaint. It held that the provisions of Social Services Law § 350 (1) (a), which require the State Commissioner to establish "adequate” shelter allowances for ADC recipients, are directory or precatory, not mandatory, and that the amount of such allowances is a matter which rests within the State Commissioner’s unreviewable discretion. We granted leave to appeal.

In reviewing defendants’ motion to dismiss for insufficiency, we are obliged to assume the truth of the facts asserted in the complaint and the affidavits opposing dismissal and accord plaintiffs the benefit of all favorable inferences that may be drawn from their pleadings (Prudential-Bache Sec. v Citibank, 73 NY2d 263, 275 [citing cases]). Having done so, we conclude that section 350 (1) (a) imposes a statutory duty on the State Commissioner of Social Services to establish shelter allowances that bear a reasonable relation to the cost of housing in New York City and that plaintiffs’ claim that he has failed to perform that duty presents a justiciable controversy involving the alleged failure of the executive branch of government to comply with the directions of the legislative branch. Accordingly, we reverse the order of the Appellate Division and remit the matter for further proceedings.

I

CPLR 3001 authorizes declaratory relief between parties submitting a justiciable controversy to the court. Justiciability is an "untidy” concept but it embraces the constitutional doctrine of separation of powers and refers, in the broad sense, to matters resolvable by the judicial branch of government as opposed to the executive or legislative branches or their extensions (see generally, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C3001:4, at 357). Broad policy choices, which involve the ordering of priorities and the allocation of finite resources, are matters for the executive and legislative branches of government and the place to question their wisdom lies not in the courts but elsewhere (see, Jones v Beame, 45 NY2d 402; Matter of Abrams v New York City Tr. Auth., 39 NY2d 990).

Plaintiffs do not question the wisdom of the Legislature’s action, however. On the contrary, they contend that the Legislature, by enacting Social Services Law § 350 (1) (a), has decided that shelter allowances to ADC recipients shall be adequate to maintain a family in a home-type setting and they seek to compel the Commissioner of Social Services to implement that legislative decision by establishing grants at levels adequate for the purpose. They contend that the statute is not simply a guide for the Commissioner when exercising his discretion on the subject but establishes a standard of care which executive officers must meet unless or until the Legislature changes it. If the statute is the latter then the dispute is justiciable because the courts may compel obedience to a statutory command. If the Legislature left the matter to the judgment of the Commissioner, then the issue is beyond review for the courts may not substitute judicial oversight for the discretionary management of the public’s business by public officers (see, McCain v Koch, 70 NY2d 109; Matter of Dental Socy. v Carey, 61 NY2d 330; Klostermann v Cuomo, 61 NY2d 525).

II

The provision of assistance to the needy is not a matter of legislative grace but is specifically mandated by the New York State Constitution (Tucker v Toia, 43 NY2d 1, 7). It provides that the "aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and by such manner and by such means, as the legislature may from time to time determine” (NY Const, art XVII, § 1). The Legislature has implemented this constitutional provision primarily by three programs set forth in the Social Services Law: Aid to Families with Dependent Children, Supplemental Security Income Program, and Home Relief. The program under consideration here, Aid to Families with Dependent Children, is a joint Federal-State program designed to provide support to needy families with children (42 USC § 601 et seq.; Social Services Law §§ 343-362). Pursuant to it, States determine the levels of benefits paid and the Federal Government reimburses 50% of the costs (42 USC § 602).

Public assistance consists of two main components, basic grants for food and other necessities and shelter grants. The Legislature has specified the dollar amounts of monthly assistance payable to recipients for basic grants but it has directed that the amount of shelter allowances shall be set administratively to reflect local rent levels in the various areas of the State (Social Services Law § 131-a [1]). To implement this administrative responsibility, the Department has enacted regulations which entitle recipients to shelter allowances equal to their actual rent, subject to a fixed ceiling which varies from district to district and which is also adjusted for the number of persons in the family unit. In January 1988 defendant Perales, the State Commissioner of Social Services, promulgated the current schedule which establishes a maximum grant of $215 per month for a family of one in New York City for apartments where heat is included in the rent, increasing incrementally to a maximum of $421 per month for a family of eight or more persons (see, 18 NYCRR 352.3 [a]).

Plaintiffs contend that these allowances are not adequate. They assert that in 1987, when this action was commenced, over 60% of all ADC recipients living in private housing were forced to pay rents in excess of the established shelter allowances and that even under the current regulations, which increased allowances an average 13%, effective January 1, 1988, no more than 65% of all public assistance recipients in New York City receive reasonable rental allowances. Defendant City Commissioner places the figure even lower.

Ill

Analysis starts with the language of the statute. Section 350 (1) (a) of the Social Services Law provides: "Allowances shall be adequate to enable the father, mother or other relative to bring up the child properly, having regard for the physical, mental and moral well-being of such child, in accordance with the provisions of section one hundred thirty-one-a of this chapter and other applicable provisions of law. Allowances shall provide for the support, maintenance and needs of one or both parents if in need, and in the home” (emphasis added).

Also relevant to plaintiffs’ claim are section 344 (2) of the Social Services Law which states that under the ADC program "[a]id shall be construed to include services, particularly those services which may be necessary for each child in the light of the particular home conditions and his other needs” and section 350-j (3) which requires that "[e]mergency assistance to needy families with children shall be provided * * * when such assistance is necessary to avoid destitution or to provide them with living arrangements in a home”. We construe these provisions as manifesting the Legislature’s determination that family units should be kept together in a home-type setting and imposing a duty on the Department of JSocial Services to establish shelter allowances adequate for that purpose. A schedule establishing assistance levels so low that it forces large numbers of families with dependent children into homelessness does not meet the statutory standard.

Our interpretation rests first on the words used in the statute: they import duty, not discretion. Section 350 (1) (a) of the Social Services Law states that aid to achieve the stated goals "shall” be provided and "shall” be adequate. Similarly, section 344, which imposes on public welfare districts an obligation to provide ADC benefits, states in subdivision (2), that aid for ADC "shall * * * include services which may be necessary for each child in the light of the particular home conditions and his other needs.” In contrast, words found elsewhere in section 350 signify a legislative grant of discretion. Thus, subdivision (1) (b) provides that "[wjhen permitted in accordance with regulations of the department, provision may be made” for certain items of medical assistance. Similarly, subdivision (1) (f) provides that care in special facilities "may be provided” during pregnancy if "in the judgment of the social services official” care cannot be provided in the home.

Notwithstanding this language, the Attorney-General contends that the cross-references in section 350 (1) (a) to "section [131-a] and other applicable provisions of law” (which are not unique to section 350 but common to several different programs) were inserted by the Legislature in a 1969 amendment to the statute (L 1969, ch 184, §§ 1, 15) to give the Commissioner broad discretion in setting assistance levels in an effort to control rising public assistance expenditures and qualify its provisions.

We reviewed the legislative purpose of chapter 184 in Matter of Bernstein v Toia (43 NY2d 437, supra) when we approved the use of flat grants for shelter allowances. We recognized that the amendment was intended to effectuate economies when we noted that such grants were an acceptable alternative to individually constructed grants of assistance formerly used and that their use met the amendment’s purpose of making "optimum responsible use of the not unlimited funds” (supra, at 446) available for public assistance by limiting the administrative expenses otherwise incurred by individualized grant calculation (see also, Baumes v Lavine, 38 NY2d 296, 299-302). But nothing in chapter 184, or our construction of it in Bernstein, changed the pre-1969 statutory requirements of adequacy. While section 131-a directs defendants to pay housing grants and provides the Commissioner with discretion in setting them based upon local housing conditions, it does not supplant or limit the standard of adequacy prescribed for housing allowances for ADC families found in section 350 (1) (a).

The other "applicable provisions of law” relied on by the Attorney-General, but not expressly mentioned in section 350, are found in section 131, which relates to the general duty of social services officials to provide care. The section provides in subdivision (1), however, that shelter allowances must be set "in accordance with the requirements of this article and other provisions of this chapter” and thereby incorporates the "adequacy” standard of section 350 (1) (a).

Beyond these general arguments, the Attorney-General also cites to specific words in section 131 which he identifies as language evidencing discretion in the Commissioner. He relies on subdivision (1), which states that it is the duty of social services officials to provide adequately for the needy "insofar as funds are available for that purpose”, and the words appearing in subdivision (3) which provide that "[a]s far as possible” families shall be kept together and assistance and service shall be given a needy person in his own home "[w]henever practicable.”

The contention that the general provision of subdivision (1) referring to the availability of funds supersedes the obligation of section 350, and all other specific statutory provisions, runs counter to accepted rules of statutory construction which hold that when there are general and particular provisions in a statute the "general does not override the particular but applies only where the particular provision is inapplicable” (People v Lawrence, 64 NY2d 200, 204). To hold in this case that these words supersede the mandate of section 350 (1) (a) would make all specific requirements of the Social Services Law subject to the discretion of the Commissioner, notwithstanding legislative mandate, because their enforcement requires the expenditure of funds.

Nor are we persuaded by the cited words from subdivision (3). That section also states that recipients "shall not be separated for reasons of poverty alone, and they shall be provided services to maintain and strengthen family life”, thus suggesting that the qualifying words identified by the Attorney-General refer to nonfinancial matters, such as medical problems or the need to protect children from abuse.

Finally, we do not agree that in enacting section 350 (1) (a) the Legislature could not have intended the construction we adopt because ADC assistance is provided only to needy children deprived of parental support (Social Services Law § 349 [B]) and some do not receive the benefits of the program. ADC is the primary program in the State for ensuring the welfare of needy children. Plaintiffs allege that it covers approximately 98% of those living in New York City who receive public assistance benefits. In contrast, eligibility for Home Relief, the other basic program of assistance in New York, is not contingent upon the presence of children in the household and it is not specifically designed to deal with their needs. Given the different focuses of the two programs it is reasonable that the Legislature provided special protection to ensure the health and well-being of children in a program that is dedicated to protecting the welfare of children deprived of parental support.

In concluding, we note that New York has a long history of protecting children in the home (see generally, Bond, Social Welfare Legislation, 1946 NY Legis Ann, at 284-287). The first legislation dealing specifically with the subject was the Child Welfare Act of 1915 (L 1915, ch 228) which established county Boards of Child Welfare and authorized them to "grant allowances to widowed mothers with one or more children under the age of sixteen years, in order that such children may be suitably cared for in their homes”. The legislative commission that drafted the 1915 act explained that its principal purpose was to ensure that children be raised in the home: "The normal development of childhood is one of the main functions of government. The best education requires a proper home training, and it thereby becomes the duty of the State to conserve the home as its most valuable asset whenever factors, other than improper guardianship of the parents, threaten its destruction” (Report of New York State Commission on Relief for Widowed Mothers, 1914 NY Senate Doc No. 64, at 3). Thus, during a period when the needy generally were cared for in institutional poor houses, the Legislature provided special protections for mothers with dependent children, so that the children could be raised in their homes. Moreover, when the Legislature eliminated a cap on ADC payments which had restricted grants to the cost of providing institutional care (see, L 1935, ch 547, § 1), the then State Commissioner of Public Welfare explained that the new provision provided for the calculation of allowances “in accordance with the actual minimum needs of the families to be cared for” (Letter of David C. Adie, Commissioner of New York State Department of Social Welfare to Governor Herbert Lehman, Apr. 10, 1935, Governor’s Bill Jacket, L 1935, ch 547). He recognized that “this bill if it becomes law may tend to increase * * * relief expenditures” but he recommended its approval, nonetheless, because the prior law made it "impossible * * * to give adequate relief’ (id.). We are referred to nothing in subsequent amendments which has altered the historical concept that families should be kept together in a home-type setting.

We conclude, therefore, that when the Legislature directed that shelter allowances "shall be adequate”, it imposed a duty on the Commissioner to establish a schedule reasonably calculated for that purpose. Manifestly, the Legislature may or may not appropriate funds necessary to fund these obligations, but the Commissioner does not discharge this statutory duty unless he complies with the mandate contained in Social Services Law § 350 (1) (a).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the motions to dismiss the complaint denied.

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

Order reversed, etc.

      . Plaintiff Jiggetts has subsequently withdrawn from the case and the action against her landlord, Ocean Park Company, has been discontinued.

      . The action was commenced as a class action but the Appellate Division, relying on Matter of Jones v Berman (37 NY2d 42), held class action relief unnecessary. It also held that defendant City Commissioner was not a proper party (see, Jiggetts v Grinker, 148 AD2d 1, 21). The only issue plaintiffs assert on this appeal is the legal sufficiency of the complaint under CPLR 3211 (a) (7), i.e., whether a duty is imposed on defendant State Commissioner of Social Services to establish "adequate” shelter allowances.

      . Petitioners did not challenge the adequacy of the grants in Bernstein but significantly, in upholding the Department’s methodology, we described the flat grant concept as one in which "after statistical and qualitative analysis of a fair sampling of individual grants, a uniform figure is fixed that is determined to be adequate in general to meet the needs in question” (43 NY2d 437, 444). In Bernstein the schedules adopted equaled the 95th percentile of such actual allowances (id., at 447).

      . Section 131 (3) provides: "3. As far as possible families shall be kept together, they shall not be separated for reasons of poverty alone, and they shall be provided services to maintain and strengthen family life. In providing such services, the public welfare official may utilize appropriate community resources, including non-profit private agencies. Whenever practicable, assistance and service shall be given a needy person in his own home. The commissioner of public welfare may, however, in his discretion, provide assistance and care in a boarding home, a home of a relative, a public or private home or institution, or in a hospital” (emphasis added).


author: Titone, J.

text:
    The People of the State of New York, Respondent, v Neftali Ayala, Appellant.
    Argued January 9, 1990;
    decided February 13, 1990

      POINTS OF COUNSEL

      Raymond C. Volper and Stephen J. Pittari for appellant.

      Carl A. Vergari, District Attorney (Richard Longworth Hecht, Maryanne Luciano and Richard E. Weill of counsel), for respondent.
   OPINION OF THE COURT

Titone, J.

Defendant was convicted of murdering one James McKinley and attempting a criminal assault against one Thomas Barrett. The charges arose as a result of defendant’s participation in a violent melee, which grew out of an earlier confrontation between defendant and the two victims. The present appeal requires us to consider whether the Wade hearing testimony of an eyewitness who has since become unavailable is admissible at trial under the statutory exception to the rule against hearsay that is contained in CPL 670.10. A further problem is presented because of the admission at trial of certain out-of-court statements made by two, separately prosecuted codefendants. We conclude that the Wade hearing testimony was not admissible under CPL 670.10. Nonetheless, although this evidence and the concededly inadmissible codefendants’ statements should not have been placed before the jury, we hold that the conviction should be affirmed because, in light of the other evidence of guilt, these errors were harmless.

I. FACTUAL BACKGROUND

The People’s Evidence

The case against defendant consisted principally of live eyewitness testimony describing both the preliminary altercation and the confrontation that led immediately to McKinley’s death and Barrett’s injury. Eileen Morgan, Barrett’s girlfriend, and defendant’s two companions, James Santiago and Franklin Villar, all testified that defendant initially encountered Barrett and McKinley on Palisade Avenue in Yonkers, New York. The men had a quarrel that quickly degenerated into a fist fight, which ended when Barrett pulled out a long metallic instrument, identified as either a knife or an icepick, and defendant ran away. Defendant, Santiago and Villar then located and enlisted the aid of three acquaintances, James Ortiz, Danny Mercado and Robert Ramos, ostensibly to aid defendant in a planned second fight with Barrett.

After driving around in search of McKinley and Barrett, defendant and his associates finally located them having a conversation with Zina Everett and Donnita Bunch in the lobby of Morgan’s apartment building on School Street in Yonkers. According to Bunch’s trial testimony, a group of three or four individuals, including defendant, entered the lobby. Bunch testified that defendant, whom she knew from school, quickly "jumped” and then began punching McKinley on the left side of his chest. The "punching” motion, which, as Bunch demonstrated for the jury, resembled a stabbing motion, was repeated some three times. Bunch, however, did not see a weapon in defendant’s hands from her vantage point of approximately five feet away.

Shortly thereafter, gunshots were heard. Bunch and Everett ran into a nearby hallway, Morgan looked out her apartment window in time to see defendant and three others chasing McKinley and Barrett, and a third eyewitness, Eleanor Brown, also saw a chase from her apartment window. Brown and Morgan both stated that one of the men stopped and, with arms extended, fired twice at the men who were being chased. Morgan, Santiago and Villar all saw McKinley fall to the ground, pick himself up and run into a nearby car. Villar identified Ortiz as the shooter, but Ortiz told his companions that he had only begun shooting after he saw Mercado doing so. Mercado also acknowledged shooting "the guy” who hit him with a bottle. Barrett was subsequently treated for a gunshot wound. McKinley had a superficial gunshot wound, a superficial abrasion and two deep stab wounds. McKinley ultimately died as a result of these wounds, which penetrated his heart and lungs.

The Disputed Pretrial Statements

In addition to the foregoing eyewitness and forensic testimony, the People introduced the pretrial statements that are the focus of this appeal. The first of these was a redacted transcript of the Wade hearing testimony given by Zina Everett, which was read to the jury as part of the People’s evidence-in-chief. Everett, who had become unavailable in the interim, gave testimony at the Wade hearing that essentially paralleled Bunch’s trial testimony. The only significant differences between Everett’s Wade hearing testimony and Bunch’s trial testimony was Everett’s assertion that she had seen some unidentified object in defendant’s hand.

Also admitted at defendant’s trial were redacted versions of Ortiz’s and Mercado’s statements to police after the incident. Ortiz’s statement described the events leading up to the School Street confrontation in a manner similar to the description provided by Santiago and Villar. Ortiz, however, claimed that he had waited in the car while "others” went inside the building and that, after some gunshots were heard, two of the "others” returned to the car and one of these returnees boasted that he had "paid them back” and "had stabbed him.” Mercado’s redacted statement admitted that he (Mercado) had been present at the School Street incident, that he had been hit by a bottle and that someone else had been stabbed. Although Mercado and Ortiz were not tried with defendant, the trial court instructed the jury that their statements were admitted "to establish the allegation in the indictment that a number of individuals were aiding, abetting and acting in concert with each other in the commission of these alleged crimes.” In addition, in a posttrial written decision the trial court indicated that the Mercado and Ortiz statements had been admitted as declarations against penal interest.

Defendant was convicted of second degree murder and attempted first degree assault. On appeal, the Appellate Division held that defendant’s appellate arguments concerning the admission of the Everett, Ortiz and Mercado statements were adequately preserved by timely and specific objection, that the arguments were meritorious and that the three statements should not have been admitted. The court nonetheless affirmed the convictions, since, in light of the overwhelming evidence of guilt, it found the errors to be harmless. We agree with the Appellate Division’s conclusion and, accordingly, affirm.

II. DISCUSSION

Admissibility of The Hearsay Evidence

To be admissible, the prior testimony of Zina Everett, which was otherwise classifiable as hearsay, had to satisfy CPL 670.10 (see, People v Harding, 37 NY2d 130, 133-134; see also, People v Gonzalez, 54 NY2d 729). That statute provides: "Under circumstances prescribed in this article, testimony given by a witness at (a) a trial of an accusatory instrument, or (b) a hearing upon a felony complaint conducted pursuant to [CPL] 180.60, or (c) an examination of such witness conditionally, conducted pursuant to article [660], may * * * be received into evidence at a subsequent proceeding in or relating to the action involved when at the time of such subsequent proceeding the witness is unable to attend the same by reason of death, illness or incapacity, or cannot with due diligence be found”. The "subsequent proceedings” at which such testimony may be admitted include "[a]ny proceeding constituting a part of a criminal action based upon the charge or charges which were pending against the defendant at the time of the witness’s testimony and to which such testimony related”.

The undisturbed findings of the courts below that the People exercised the necessary diligence in their unsuccessful efforts to locate Everett are supported by the record and, consequently, cannot be disturbed by this court (see, People v Arroyo, 54 NY2d 567, 573-574, cert denied 456 US 979). Thus, that element of the statutory requirements has been satisfied and the only remaining question for us to resolve is whether the witness’s prior testimony falls within the class of evidence that the Legislature intended to render admissible by enacting CPL 670.10.

It is undisputed that the Wade hearing at which Everett’s testimony was given is not literally within any of the three categories of prior proceedings delineated in the statute, i.e., felony hearings, article 660 conditional examinations and trials of accusatory instruments. Although conducted in close temporal proximity to the commencement of defendant’s trial, the Wade hearing was not part of the "trial” itself, which, in defendant’s case, began only after the jury was sworn (CPL 1.20 [11]; see, People v Anderson, 16 NY2d 282, 288). Indeed, the Legislature has specifically provided that, in most instances, a motion to suppress evidence must be made and determined before the formal commencement of trial (CPL 255.20, 710.40). Thus, by definition, a Wade suppression hearing such as that held in defendant’s case cannot be considered part of the "trial.”

Although it recognized that the Wade hearing at which Everett testified was not within the literal terms of CPL 670.10, the trial court decided to adopt a "more expansive reading” of the statute. Such a reading was justified, in the court’s view, because "[i]t defies logic to believe that the Legislature would allow the testimony at so restrictive a hearing as a felony hearing to be admitted at trial [see, CPL 670.10 (1) (b)] and not allow testimony taken at a previous [suppression] proceeding which was more expansive in scope and in which the witness was adequately cross-examined” (121 Misc 2d 1073, 1075). We disagree.

First, although CPL 670.10 is "[l]argely a codification of common-law” principles (People v Arroyo, supra, at 569), this court has already rejected the argument that the statutory terms and their fair import are not exclusive (People v Harding, supra, at 133-134). As the court has noted, the statute contains "three carefully worded and enumerated exceptions” to the general rule excluding hearsay evidence (id., at 134), suggesting that the Legislature intended the statute’s reach to be relatively narrow and limited to its precise terms. Further, the general rule that "[i]n criminal matters the courts must be more circumspect” (id., at 134) counsels against a construction that would extend CPL 670.10 well beyond the "fair import” of its language.

Second, a legislative distinction between felony hearings and suppression hearings is not, in this context, as illogical as the trial court’s opinion suggests. A felony hearing is "a virtual minitrial of the [People’s] prima facie case” on the merits (People v Hodge, 53 NY2d 313, 318). Consequently, the testimony, and related cross-examination, at the felony hearing will ordinarily "delve[] into substantially the same subject matter as [will] the trial [at] which it later [may] be used.” (People v Arroyo, supra, at 574.) In contrast, the focus of suppression hearings is, typically, the propriety of certain challenged official conduct and the relationship between the unlawful official conduct, if any, and the evidence the defendant seeks to exclude. Thus, areas of importance to the substantive issues at trial may be inadequately — or not at all —explored. Moreover, because no jury is present and the question of guilt or innocence is not at stake, defense counsel may pursue strategies that would be highly prejudicial to the client in other contexts, such as eliciting facts suggestive of the client’s guilt or withholding objection to prosecution testimony that might be harmful to the client’s position.

Finally, the trial court’s reliance here on the breadth of the opportunity to cross-examine witnesses that suppression hearings, as distinguished from felony hearings, afford is misplaced. An adequate opportunity to cross-examine at the prior proceeding is an additional, constitutional requirement for the admissibility of prior testimony that otherwise satisfies CPL 670.10; it is not a substitute for the satisfaction of the clear statutory terms (see, People v Arroyo, supra, at 575; People v Simmons, 36 NY2d 126; People v Prince, 106 AD2d 521, 522, affd on opn below 66 NY2d 935).

The People’s arguments based on People v Anderson (supra) are similarly unpersuasive. In that case, the court held that a suppression hearing should be deemed part of the trial for purposes of section 356 of the Code of Criminal Procedure (now CPL 260.20), the statutory provision delineating the defendant’s right to be personally present at a trial for a felony. While acknowledging that "[t]he suppression hearing is, of course, not within the specific meaning of 'trial’ as heretofore defined,” the court felt unconstrained by that technical definition because it was " 'not in keeping with the purpose of the statute before [it]’ ” (16 NY2d, at 288, supra, quoting People ex rel. Steckler v Warden, 259 NY 430, 432-433), i.e., " 'to prevent the ancient evil of secret trials * * * and to guarantee the defendant’s right to be present at all important stages of his trial.’ ” (16 NY2d, at 287, supra, quoting People ex rel. Lupo v Fay, 13 NY2d 253, 256.) Such a rationale is inapplicable here, where the purpose of the statute in issue, namely CPL 670.10, is simply to create a limited exception to a common-law evidentiary rule.

In short, the trial court’s decision to admit Everett’s Wade hearing testimony was neither authorized by the statutory language nor by any policy considerations supporting a more expansive interpretation of the provision. Accordingly, the decision was error. Since the People now concede, as they must, that the admission of Ortiz’s and Mercado’s redacted out-of-court statements was also erroneous, it only remains for us to consider whether any of these errors, either alone or collectively, requires reversal. We agree with the Appellate Division, which answered this question in the negative.

Harmless Error

CPL 470.05 (1) directs us to "determine an appeal without regard to technical errors or defects which do not affect the substantial rights of the parties.” Further, there exists a large body of case law establishing the standards to be used in determining whether a particular legal error requires reversal in light of the evidence and issues presented in an individual case. How demanding these standards are depends, at least in part, upon whether the error in question is of constitutional magnitude. As a general matter, the standard for nonconstitutional error, which is governed solely by State law, requires reversal if the properly admitted evidence was not "overwhelming” and there is a "significant probability * * * that the jury would have acquitted the defendant had it not been for the error or errors which occurred.” (People v Crimmins, 36 NY2d 230, 242.) Constitutional error, in contrast, must lead to reversal unless there is no reasonable possibility that the error might have contributed to the conviction (Chapman v California, 386 US 18; Fahy v Connecticut, 375 US 85; People v Crimmins, supra, at 237). Even this highly exacting harmless-error standard, however, does not demand that guilt be proven "indisputably” (People v Schaeffer, 56 NY2d 448, 455).

Here, the admission of the Everett statement involved only the erroneous construction of a State statute, i.e., CPL 670.10. On the other hand, the admission of the Ortiz and Mercado pretrial statements did rise to the level of a constitutional violation. As the Appellate Division correctly concluded, the statements of these codefendants did not have the indicia of reliability that the Constitution requires (see, Ohio v Rob erts, 448 US 56, 74; People v Sanders, 56 NY2d 51, 64-65). Further, the need to resort to the witnesses’ out-of-court statements was not established by a specific showing that they were unavailable because of an actual refusal to testify or some other difficulty (see, Ohio v Roberts, supra; People v Sanders, supra; cf., United States v Inadi, 475 US 387 [declarant’s unavailability not a constitutional requirement for admission of coconspirators’ out-of-court declarations]). Accordingly, the erroneous admission of the latter statements requires application of the more stringent harmless-error standard.

Even under this standard, the Appellate Division’s conclusion on the harmless error question was clearly correct. The People’s case against defendant, which was based largely on eyewitness testimony, was essentially unimpeached. Indeed, defendant did not seriously contest his participation as a leading actor in the violence that led to McKinley’s death. Rather, he merely sought to persuade the jury that a reasonable doubt existed about his responsibility for McKinley’s stab wounds.

As to this issue, however, there is no reasonable possibility that the erroneous admission of the Ortiz and Mercado statements contributed to the outcome (see, People v Crimmins, supra, at 237). The eyewitness testimony established that defendant "punched” McKinley in the chest using a gesture that unquestionably resembled a stabbing motion. The several eyewitness accounts of the subsequent chase established that, after the one-on-one encounter between defendant and McKinley, none of defendant’s confederates got close enough to McKinley to inflict stab wounds. Since McKinley died of stab wounds he received at some point during the melee, the inference is virtually inescapable that defendant is, in fact, the person who stabbed him. Indeed, a contrary inference could not rationally have been drawn without resort to impermissible speculation.

In light of this highly persuasive evidence, which is certainly not rendered any weaker solely by virtue of its circumstantial nature, the significance of the erroneously admitted codefendants’ statements was, at best, marginal. Mercado’s statement, in which he admitted his own presence at the incident and acknowledged that someone had been "stabbed” added nothing substantive to the People’s case against defendant on this issue. Ortiz’s statement, which could fairly be construed as conveying an admission by defendant that he had "stabbed” McKinley, did not meaningfully enhance the People’s case for the simple reason that the evidence establishing defendant’s responsibility for the stabbing was already all but ironclad. A fortiori, the trial court’s nonconstitutional error in admitting Everett’s Wade hearing testimony, which merely added that defendant may have had "something” in this hand when he "punched” McKinley’s chest, does not provide a basis for reversing this conviction under the less stringent harmless-error standard of review of such errors.

We have examined defendant’s remaining contentions and found them to be either unpreserved or lacking in merit.

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

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

Order affirmed.

      . According to their own testimony, Santiago and Villar remained outside the building in the car.

      . During jury selection, the court found it necessary to grant motions by Mercado and Ortiz for a mistrial. The proceeding then went forward against defendant alone.

      . CPL article 660 provides a procedural mechanism for either party to a criminal action to secure and preserve the testimony of potential witnesses where there is reasonable cause to believe that the witness may subsequently become unavailable.

        . The requirements of the Federal Constitution’s Confrontation Clause were satisfied by the defendant’s presence at the Wade hearing, the opportunity defendant was given to cross-examine Everett and, finally, the demonstrated need to use Everett’s Wade testimony because of her present unavailability (see, Ohio v Roberts, 448 US 56, 74; Barber v Page, 390 US 719; People v Arroyo, 54 NY2d 567, 570-575). Since there is no indication that defendant’s opportunity to cross-examine Everett at the Wade hearing was actually impaired, the error in admitting the testimony was not of constitutional magnitude.


author: Bellacosa, J. Titone, J.

text:
    The People of the State of New York, Respondent, v Anthony Vespucci et al., Appellants. The People of the State of New York, Respondent, v Private Sanitation Industry Association of Nassau/ Suffolk, Inc., Appellant. The People of the State of New York, Respondent, v Jamaica Ash and Rubbish Removal Co., Inc., Appellant.
    Argued January 3, 1990;
    decided February 15, 1990

      POINTS OF COUNSEL

      Bernard S. Meyer and Andrew J. Turro for Anthony Vespucci and others, appellants in the first and second above-entitled actions.

      Stephen P. Scaring and Laurie S. Hershey for Jamaica Ash and Rubbish Removal Inc., appellant in the third above-entitled action (who joins in above-listed arguments).

      Ronald Goldstock, Director, Organized Crime Task Force (Steven Chananie and Martin Marcus of counsel), for respondent.
   OPINION OF THE COURT

Bellacosa, J.

Defendants challenge their convictions principally on the ground that the Director of the New York State Organized Crime Task Force (OCTF) lacks authority to be an applicant for eavesdropping warrants. They premise this argument on the assertion that the State statute (CPL 700.05 [5]), which expressly includes the Director of OCTF as a law enforcement officer authorized to apply for warrants, is inconsistent with and violative of its Federal enabling antecedent (18 USC § 2516 [2]). We conclude that there is no infirmity in the New York State statute or in its utilization to secure the challenged warrants obtained by OCTF’s Director in accordance with the valid State statute and procedures. We are also satisfied that the sealing requirements of CPL 700.50 (2) have been met on this record, and we therefore affirm the orders of the Appellate Division which had affirmed defendants’ convictions.

The most serious charges of which defendants were convicted were coercion and conspiracy. This culminated a lengthy and complex investigation by the OCTF into organized crime infiltration of the refuse-carting industry in Nassau and Suffolk Counties. A targeted victim of the criminal enterprise —a legitimate businessman — gave information in 1982 to the OCTF which triggered the specific investigation. Over the course of 13 months in 1982 and 1983, the OCTF uncovered the pervasive tentacles of organized crime in Long Island’s carting industry, networked by a conspiracy of bribery and violent activities. Indictments ensued and all but one of the defendants pleaded guilty to the charges against them. Defendant Finnerty went to trial and was also convicted.

The OCTF’s primary investigatory and evidence-gathering weapon was eavesdropping. Seven warrants were issued over the course of the probe. The OCTF Director applied for these eavesdropping warrants pursuant to CPL 700.05 (5), which provides: " 'Applicant’ [for an eavesdropping warrant] means a district attorney or the attorney general or if authorized by the attorney general, the deputy attorney general in charge of the organized crime task force” (emphasis added). Defendants contend CPL 700.05 (5) is invalid because the Federal statute does not allow this State criminal law official to be included among the few authorized applicants. Therefore, they urge the evidence, otherwise legally obtained with the warrants, was illegally obtained and should have been suppressed.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 "impose[s] upon the States the mjnimum constitutional criteria for electronic surveillance” (People v Shapiro, 50 NY2d 747, 762-763 [citations omitted.]; 18 USC §2510 et seq.). While a State may enact legislation more restrictive than the baseline protections allowed by this act, "any State law drawn more broadly * * * runs afoul of the supremacy clause (US Const, art VI, cl 2)” (People v Shapiro, supra, at 763 [citation omitted]). Title III limits those who may be applicants for court-authorized eavesdropping warrants to "[t]he principal prosecuting attorney of any State, or the principal prosecuting attorney of any subdivision thereof, if such attorney is authorized by a statute of that State” (18 USC § 2516 [2]). Defendants contend that the CPL 700.05 (5) authorization of "the deputy attorney general in charge of the organized crime task force” impermissibly broadens the literal letter and the overarching purpose of that threshold part of title III. We disagree.

Defendants argue that conferring applicant status for securing court-ordered eavesdropping warrants on this sole specialized statutory Deputy Attorney-General violates the Federal statute because it uses the definitive article "the” in qualifying a "principal prosecuting attorney”. Yet Congress was writing a generic enabling statute to cover the 50 widely varying official titles and chains of command in all the State jurisdictions. Also, countervailing congressional words and action elsewhere in the comprehensive Federal act and its legislative history support our rejection of this cramped construction: "State legislation enacted in conformity with this chapter should specifically designate the principal prosecuting attorneys empowered to authorize interceptions” (Sen Rep No. 1097, 90th Cong, 2d Sess, 1968, reprinted in 1968 US Code Cong & Admin News 2112, 2189 [hereinafter Senate Report] [emphasis added]). The multiplicity, albeit high-level, of permissible applicants intended by Congress is additionally manifested by 18 USC § 2516 (1), which lists six separate Federal prosecuting attorneys authorized to apply for eavesdropping warrants. Indeed, the statute enacted by Congress for the "State” (for title III purposes) of the District of Columbia permits the United States Attorney to "authorize * * * any investigative or law enforcement officer” to be an applicant (DC Code Annot § 23-546 [a]; see, Note, Significant Development, Electronic Surveillance — State Authorization of Wiretaps Under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 56 BU L Rev 600, 606). We are further aided in our inquiry by this congressional admonition: "The important question [in determining valid applicants], however, is not name but function.” (Senate Report, at 2187). Congress, we therefore conclude, did not intend the straitjacketed implementation of this important legislation urged upon us by defendants-appellants and the dissenting opinion. Congress instead reflected a more realistic and flexible, though limited, high-level roster of applicants (see also, United States v Smith, 726 F2d 852, 857-858).

An overall goal of title III is "delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized” (Senate Report, at 2153). To this end, the specific mandate of 18 USC § 2516 (2) "provide[s] for the centralization of policy relating to statewide law enforcement in the area of the use of electronic surveillance in the chief prosecuting officer of the State” (Senate Report, at 2187). The essential question is whether the OCTF Director is precluded from qualifying as the "principal prosecuting attorney” within the language and meaning of 18 USC § 2516 (2). An examination of the purpose and function of the New York State OCTF and its Director’s responsibilities supports the view that this officer should not be written out of the New York State authorization statute, as that would ironically contradict the centralization objective of the Federal statute.

The proliferation-of-authorized-applicants hypothesis advanced by the dissent may be readily dispelled. In 1970, the New York State Legislature established a State-wide Organized Crime Task Force (Executive Law § 70-a). The stated reason for the creation of the OCTF is remarkably consonant with that underlying the enactment and the limitations of the Omnibus Crime Control and Safe Streets Act of 1968 (18 USC § 2516 [2]): to insure centralization and consistency in law enforcement against organized crime (see, Legislative Findings, L 1970, ch 1003, § 1 [3], [4]). The consolidation intent embodied in the State’s OCTF statute is further evidenced by the provision for the appointment of one special Deputy Attorney-General to the leadership responsibility for this whole field of endeavor. This officer, appointed by and serving at the pleasure of the Governor and Attorney-General (Executive Law § 70-a [2]), is thus publicly accountable generally and to them specifically as the State’s chief executive and highest elected law enforcement official. I can find no New York legislative trend creating State-wide special prosecutors enjoying the dual specific legislative mandate that the Director of the OCTF has (see, Executive Law § 70-a [2]; CPL 700.05 [5]). Indeed, the Governor’s formal Budget Message for 1990-1991 specifies an opposite trend: elimination of the Special Prosecutor for Corruption, in existence since 1972 (State Budget, at 103).

Another defense prong of attack is that a lack of "political accountability” should deprive the OCTF Director of eavesdrop warrant applicant status. Congress did express an intent that applicants "be limited to those responsive to the political process” (United States v Giordano, 416 US 505, 520). However, the purpose of this requirement is to ensure that "[sjhould abuses occur, the lines of responsibility lead to an identifiable person” (Senate Report, at 2185). The legislative scheme of New York’s Executive Law § 70-a, plus the requirement of authorization running to the Director from the regularly elected Attorney-General (CPL 700.05 [5]), have embodied in State law a sufficient assurance in this respect. Moreover, the Federal applicants enumerated in the Federal prosecutorial roster have no more political accountability than New York State’s OCTF Director (see, 18 USC §2516 [1] [which includes "any Deputy Assistant Attorney General in the Criminal Division specially designated by the Attorney General” among authorized applicants]).

Some defendants also complain that the OCTF Director’s eavesdrop warrant application authority is derived from an "overbroad delegation” of the Attorney-General’s power. But the Director’s general authority is not "derived”; rather, it is separately secured through a State legislative grant (see, Executive Law § 70-a), as is the independent warrant application power (see, CPL 700.05 [5]; see also, Matter of B. T. Prods. v Barr, 44 NY2d 226, 232, n 1; Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227, 230). The non-self-executing statutory status even requires a confirmatory express authorization from the Attorney-General, which was satisfied here by a letter from the Attorney-General to the Director. The designation and delegation is therefore not an abdication of responsibility, as has been argued, but a reinforced, checked and balanced, statutory and official conferral of appropriate authority. This is especially so under New York’s unconventional scheme where the Attorney-General is not traditionally or by statutory empowerment a general prosecuting official — which should be a sufficient answer to the dissent’s duplicativeness argument (Della Pietra v State of New York, 71 NY2d 792, 796-797).

The State and Federal statutes are specific and in harmony, and we therefore hold the New York applicant authorization statute valid. Our analysis in this respect is neither broadbrushed nor strained but quite straightforward. It is also buttressed by the failure of defendants to fulfill their burden of demonstrating the invalidity of CPL 700.05 (5) beyond a reasonable doubt (see, People v Pagnotta, 25 NY2d 333, 337). In sum, we uphold the invocation by the OCTF Director of his plain authority vested in that office under the State statute to secure the pertinent eavesdrop warrants; we find that statute consistent with the congressional enabling statute and intent; and we decide in consequence of those threshold determinations that the evidence garnered pursuant to court-ordered warrants was properly held admissible and not suppressible.

Defendants additionally claim, however, that the eavesdrop tapes and all other evidence derived from them should have been suppressed because of alleged noncompliance with the immediate sealing requirements of CPL 700.50 (2). In 6 of the 24 warrant expiration periods, tapes were not sealed "immediately”. On 5 of these 6 occasions, the period expired at midnight on a Saturday night and, in preexpiration meetings, the issuing Justice directed that the tapes be presented for sealing on the first business day after expiration. In the sixth instance, the prosecutor immediately presented the tapes for sealing but was informed by court officials of the issuing Justice’s unavailability at that particular moment. The prosecutor complied with the issuing Justice’s direction to return the next day and the tapes were then sealed.

While we relax none of the burdens initially placed on the People to explain a tape-sealing delay (People v Winograd, 68 NY2d 383, 394), we conclude on this record that the offered explanations satisfied that burden (see, People v Edelstein, 54 NY2d 306, 310). Both lower courts have so held, and we have no basis to conclude as a matter of law that the sealing requirement aspect of the statute was violated. People v Winograd (supra) offers little sanctuary to defendants because there the prosecutor knew in advance of the issuing Justice’s impending absence on the expiration date and the prosecutor made no alternative sealing arrangements in an effort to comply with the immediate sealing protection. Here, by contrast, the prosecutor in each instance made alternative arrangements in advance with court approval and directions, and sealing was accomplished "immediately” within the intendment of the statutory mandate. To rule otherwise would sacrifice substance for form and not advance the salutary and necessary purposes of the sealing protections in this statute (People v Ronning, 137 AD2d 43, 48-49, lv denied 72 NY2d 866).

The dissent’s disagreement with us on this point is particularly unavailing in view of the respect, not superseder, given People v Edelstein (supra) in People v Winograd (supra, at 394-395), which neatly and supportively harmonizes our recent relevant precedents.

Since the arguments raised do not render the affirmed judgments of conviction infirm in any cognizable respect, the orders of the Appellate Division should be affirmed.

Titone, J.

(dissenting). The majority’s decision to uphold the provision of CPL 700.05 (5) authorizing eavesdropping warrant applications by the Director of the Organized Crime Task Force (OCTF) is not supported by the language of the governing Federal statute (18 USC § 2516 [2]), the underlying statutory purpose or the relevant case law. Moreover, the majority’s broad-brush approach, which is based largely on the general crime-prevention goals of the two statutes and on an attempted analogy to the provisions governing warrant applications by Federal law enforcement officials, is flatly inconsistent with the "narrow reading” of the Omnibus Crime Control Act that we have previously adopted because of "our own sensitivity to the dangers inherent in electronic eavesdropping” (People v Shapiro, 50 NY2d 747, 764). Since I cannot subscribe to what I consider to be the majority’s strained efforts to uphold the challenged statute, I respectfully dissent.

Under the Omnibus Crime Control Act, only two classes of law enforcement officers may be designated by the States as proper applicants for court-authorized electronic eavesdropping warrants: the State’s "principal prosecuting attorney” and the "principal prosecuting attorney of any political subdivision [of the State]” (18 USC § 2516 [2]). The language is plain and unambiguous. Giving it its most natural reading, the statutory language denotes a single individual, more particularly the individual entrusted, by the State as a whole or by each of its political subdivisions, to oversee the People’s interest in the prosecution of crime. In the words of the Senate Report on the then-proposed statute, it was "the chief prosecuting officer of the State” that Congress had in mind (Sen Rep No. 1097, 90th Cong, 2d Sess, 1968, reprinted in 1968 US Code, Cong & Admin News 2112, 2187 [hereinafter Senate Report]). Although allowance was made for warrant applications by "the principal prosecuting attorney at the next political level of a State,” e.g., the county, the provision "d[id] not envision a further breakdown” (id.).

Thus, under both the unadorned statutory terms and the official explanation of how those terms were intended to be used, it is abundantly clear that Congress did not intend to permit the authority to apply for electronic eavesdropping warrants to be split between two different prosecuting officials both of whom operate at the State level of government. CPL 700.05 (5), which permits applications by either the State Attorney-General or the OCTF Director, who are both State-level prosecuting attorneys, is therefore not in conformity with 18 USC § 2516 (2) and, for that reason, cannot be sustained (see, People v Shapiro, supra).

The majority’s position is not advanced by its assertion that "under New York’s unconventional scheme * * * the Attorney-General is not traditionally or by statutory empowerment a general prosecuting official” (majority opn, at 441). Indeed, the "unconventional scheme” that the majority posits was expressly contemplated by the drafters of the Senate Report: "In most States, the principal prosecuting attorney of the State would be the attorney general. The important question, however, is not name but function. The intent of the proposed provision is to provide for the centralization of policy relating to statewide law enforcement in the area of the use of electronic surveillance in the chief prosecuting officer of the State. Who that officer would be would be a question of State law. Where no such office exists policymaking would not be possible on a statewide basis; it would have to move down to the next level of government. In most States, the principal prosecuting attorney at the next political level of a State, usually the county,, would be the district attorney, State’s attorney, or county solicitor. ” (Senate Report, at 2187 [emphasis supplied].) Thus, if the majority’s assertion were true, it would lead only to the conclusion that the Attorney-General is not a proper designee under 18 USC § 2516 (2). It certainly does not support the proposition that the OCTF Director, whose jurisdiction is even narrower than the Attorney-General’s, is fairly characterized as "the chief prosecuting officer of the State” or its functional equivalent (see, majority opn, at 439).

Even apart from the clear import of the statutory language and legislative history, it is apparent that CPL 700.05 (5)’s designation of the OCTF Director as a permissible applicant is inconsistent with the goals of the Federal act. Again, according to the Senate Report, "[t]he intent of the proposed provision [18 USC § 2516 (2)] is to provide for the centralization of policy relating to statewide law enforcement in the area of the use of electronic surveillance in the chief prosecuting officer of the State” (Senate Report, at 2187 [emphasis supplied]). The purpose of such centralization, in turn, was to "avoid the possibility that divergent practices might develop” (id., at 2185).

Plainly, the concept of "centralizing” the authority to apply for eavesdropping warrants in a "chief prosecuting attorney” is inconsistent with allowing applications at the State level to be made by either the Attorney-General or the OCTF Director. Similarly, it is difficult to see how the goal of avoiding divergent practices may be reconciled with a State statute that permits decisions "in the area of the use of electronic surveillance” to be made in two separate offices having two separate sources of authority. In this regard, it is important to point out that although the OCTF Director operates nominally within the Attorney-General’s office, he is, as the Appellate Division noted below, "vested [with] the authority to act with relative independence in conducting investigations within his jurisdiction” (144 AD2d, at 54). Indeed, the Director’s own brief submitted on this appeal asserts that his power to investigate cases involving organized crime "is derived directly from the various provisions of section 70-a of the Executive Law [the enabling legislation], and not from delegation by the Attorney-General.” In light of the specialized mandate of the OCTF Director and the absence of direct accountability between the Director and the Attorney-General, it seems likely that the former’s priorities and policy choices will differ from those of the regular law enforcement officials within the latter’s office, leading to precisely the type of conflicting and "divergent” practices that Congress was seeking to prevent.

The majority’s heavy reliance on the parallel provisions governing Federal warrant applications (majority opn, at 439) is also misplaced. It is true, as the majority notes, that 18 USC §2516 (1) authorizes warrant applications by a number of high-level Federal officials (see also, DC Code Annot § 23-546 [a] [including as permissible applicants the United States Attorney or any designated "investigative or law enforcement officer”]). However, the listed officials were selected by Congress specifically because there were "lines of responsibility lead[ing] to an identifiable person” (Senate Report, at 2185). Further, as noted by the United States Supreme Court, the listed officials, all appointed directly by the President of the United States, can fairly be said to be "responsive to the political process” (United States v Giordano, 416 US 505, 520). The same cannot be said about the OCTF Director, who is appointed jointly by both the Governor and the Attorney-General (Executive Law § 70-a [2]). Contrary to the majority’s assertion (majority opn, at 440), this system of joint appointment does not promote political accountability, but rather operates to insulate the OCTF Director from direct accountability to the political process precisely because it splits "the lines of responsibility” between two, separately elected appointing authorities.

Finally, unlike the majority, I am not persuaded by the supposed consonance between the purpose of section 2516 (2) of the Federal Omnibus Crime Control and Safe Streets Act and that of New York State legislation creating the Organized Crime Task Force (Executive Law § 70-a). The purpose of the latter was to enhance the State’s law enforcement capabilities by centralizing law enforcement efforts in a particular class of cases, i.e., those involving organized crime, in a single prosecutorial entity (see, Legislative Findings, L 1970, ch 1003, § 1). The purpose of the former, in contrast, was to minimize the potential for prosecutorial abuse of electronic eavesdropping by centralizing the warrant application authority in a single, politically responsible official. The only point of commonality is that the statutes’ respective goals are to be accomplished through centralization. Such a superficial common ground is certainly not sufficient to bring CPL 700.05 (5) into compliance with the controlling Federal statute.

The implications of the majority’s reliance on the "centralization” factor are profound and disturbing. Because centralized administration of law enforcement is often considered more effective than local prosecutorial efforts, with their inherent boundary restrictions, there is a perceptible recent legislative trend toward creating specialized prosecutors, whose authority transcends local borders, to address particular types of crimes. Given this trend, the majority’s approval of the statutory provision at issue here creates a very real risk that in the future there will be a proliferation of special-interest prosecutors who are legislatively authorized to obtain electronic eavesdropping warrants. The office of the Special Narcotics Prosecutor for New York City, for example, has some of the same salient characteristics as the OCTF Director, in that it too was created because of a perceived need to "centralize” law enforcement efforts in an area of urgent concern, i.e., drug trafficking (see, Judiciary Law § 177-a). Further, like the OCTF Director, the Special Narcotics Prosecutor operates nominally within the office of a conventional prosecutorial authority (a District Attorney serving one of the counties within New York City), but is collectively appointed by — and therefore responsible to — several elected officials, namely, the District Attorneys of all five of the counties within New York City (Judiciary Law § 177-c). Under the majority’s rationale, these traits would seem to render the Special Narcotics Prosecutor as eligible for designation as a permissible eavesdropping warrant applicant as the OCTF Director.

In summary, as I read the language and published legislative history of 18 USC § 2516 (2), for State-level investigations, the States are limited to designating a single prosecutorial official, specifically, their chief prosecuting officers, to apply for electronic eavesdropping warrants. Permitting multiple designations at the State level of special-interest prosecutors such as the OCTF Director, whose functions are "centralized” by subject matter, is inconsistent with the Federal goal of centralizing the policy and practices "in the area of the use of electronic surveillance” without regard to the subject matter of the investigation (Senate Report, at 2187). For that reason, I conclude that CPL 700.05 (5)’s designation of the OCTF Director cannot be upheld under the doctrine of Federal preemption (see, People v Shapiro, supra).

While I would reverse and suppress all of the electronically acquired evidence primarily because of the OCTF Director’s reliance on an unconstitutional source of authority, I cannot help but comment on defendant’s other argument for suppression, i.e., the People’s failure to comply with the statutory sealing requirements (CPL 700.50). The majority has held that the delays in sealing here were acceptable not because of any reasonable excuse offered by the prosecutor, but rather because, in contrast to the circumstances in People v Winograd (68 NY2d 383), "the prosecutor [here] made alternative arrangements in advance with court approval” (majority opn, at 442). I cannot agree, however, that the statutory requirement of prompt sealing may be waived or dispensed with upon judicial approval (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 700.50, at 504 [distinguishing between issuing Judge’s broad discretion to require progress reports and mandatory nature of return and sealing requirements]). Plainly, People v Edelstein (54 NY2d 306), on which the majority relies, cannot be considered helpful in light of the limitations that were placed on that case’s significance in People v Basilicato (64 NY2d 103, 116-117) and People v Winograd (supra, at 389-395). Indeed, to the extent that Edelstein may be construed to permit delays in sealing occasioned solely by the issuing Judge’s unavailability, it has been superseded by the holding in Winograd, which required the People to "offer [an] explanation for their failure to have the supervising Justice transfer authority to an available Justice” (68 NY2d, at 394, supra). Whether permission or approval by the issuing Judge is a sufficient "explanation” is not answered by either Edelstein or Winograd. As a matter of common sense, however, it seems to me that if an unexcused prosecutorial delay in bringing tapes to be sealed would constitute a ground for suppression in a given case, a judicial directive permitting such delay would also be error necessitating suppression.

Accordingly, I dissent and cast my vote to reverse the orders of the Appellate Division and suppress the evidence obtained as a result of electronic surveillance.

Chief Judge Wachtler and Judges Simons, Kaye and Hancock, Jr., concur with Judge Bellacosa; Judge Titone dissents and votes to reverse in a separate, opinion; Judge Alexander taking no part.

In each case: Order affirmed.

      . Contrary to the majority’s suggestion, the argument that the statute contemplates only one official at each level of local government does not turn on the drafters’ use of the definitive article "the” (majority opn, at 438). To the contrary, the very concept of "centralizing” authority, which figured so prominently in the drafters’ intentions, denotes a singular point of authority. I would also note that the majority’s own reliance on the grammatical construction that the Senate Report drafters used in urging that States should "specifically designate the principal prosecuting attorneys empowered to authorize interceptions” (Senate Report, at 2187 [emphasis supplied]; see, majority opn, at 439) is unavailing. Since 18 USC § 2516 (2) permits designation of "principal prosecuting attorneys” at both the State and political subdivision levels of government, the use of the plural term "principal prosecuting attorneys” is, in this context, hardly surprising. Certainly, it does not support the majority’s conclusion that more than one "principal prosecuting attorney” at the State level of government was contemplated.

      . The majority relies, in part, on "the requirement of authorization running to the Director from the regularly elected Attorney-General” (majority opn, at 440). However, as the majority later acknowledges, once such authorization is received, the Director’s powers are "independent” and not "derived” (majority opn, at 441). Furthermore, the authorization contemplated by CPL 700.05 (5) is not given on a case-by-case or application-by-application basis. Rather, it is a blanket authorization empowering the OCTF Director to apply for electronic eavesdropping warrants in those cases falling within his statutory jurisdiction. Thus, the important discretionary decisions, such as when to make applications and how to administer the wiretapping program within his department are left to the Director, without regard to whether the underlying policies conflict with those followed in the investigative branch of the Attorney-General’s office.

      . 18 USC § 2516 (1) provides that electronic eavesdropping warrant applications may be made by "[t]he Attorney General, Deputy Attorney General, Associate Attorney General, or any Assistant Attorney General, any acting Assistant Attorney General or any [specially designated] Deputy Assistant Attorney General in the Criminal Division”.

      . The split in the lines of accountability is particularly significant in our State, where the offices of Governor and Attorney-General have often been held by members of different political parties or by individuals with very different political viewpoints. Further, the independence of the New York State Attorney-General vis-á-vis the Governor is a well-known and long-standing tradition.