author: Hancock, Jr., J. Kaye, J.

text:
    In the Matter of Bath and Hammondsport Railroad Company, Respondent, v New York State Department of Environmental Conservation, Appellant. In the Matter of Trustees of the Village of Hammondsport, Respondent, v New York State Department of Environmental Conservation, Appellant.
    Argued February 14, 1989;
    decided May 2, 1989

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Nancy A. Spiegel, O. Peter Sherwood, Peter H Schiff and Joseph Koczaja of counsel), for appellant.
    The Legislature has granted the Department power to acquire land by eminent domain for "any of the purposes or functions of the department”, including fish and wildlife management. (Matter of Kamhi v Planning Bd. of Town of Yorktown, 59 NY2d 385; Courtesy Sandwich Shop v Port of N. Y. Auth., 12 NY2d 379, 375 US 78; Matter of Consolidated Edison Co. v Department of Envtl. Conservation, 71 NY2d 186.)

      Richard S. Mayberry and Robert H. Cole for Bath and Hammondsport Railroad Company, respondent; Brian C. Flynn for the Village of Hammondsport, respondent.
    I. The language of ECL 11-2103 (1) limits, with regard to "fish and wildlife” matters, the apparently broader power to acquire real property by eminent domain contained in ECL 3-0305 (1). (People v Lawrence, 64 NY2d 200; Matter of Prospect v Colahan, 109 AD2d 210; People v Mobil Oil Corp., 48 NY2d 192.) II. The language of ECL 11-2103 (1) "or otherwise” is not broad enough to include the authority to utilize the power of eminent domain to acquire real property for a "public boat launching site”. III. Statutes delegating the power of eminent domain must be strictly construed. (Schulman v People, 10 NY2d 249.) IV. The Department of Environmental Conservation has no authority to acquire real property for a "public boat launching site”. V. DEC lacks specific authority to acquire petitioner-respondent railroad’s lands. (Matter of Staten Is. R. T. Co., 103 NY 252; Matter of City of Buffalo, 68 NY 167; City of Buffalo v Day, 8 Misc 2d 14; Matter of Grade Crossing Elimination Act [Altamont], 234 App Div 129, 259 NY 564; Matter of State Commn. of Highways [Town of Ripley], 239 NY 279; People v Adirondack Ry. Co., 160 NY 225, 176 US 335; Adirondack Ry. Co. v Indian Riv. Co., 27 App Div 326; Matter of Brown v Board of Trustees, 303 NY 484.) VI. The lands sought to be condemned by respondent-appellant greatly exceed respondent-appellant’s needs for planned purposes. (Hallock v State of New York, 32 NY2d 599; Kohl Indus. Park Co. v County of Rockland, 710 F2d 895; Long Is. Light. Co. v Lambert, 77 Misc 2d 511.) VII. Respondent-appellant has failed to comply with the procedural requirements of the Eminent Domain Procedure Law. VIII. Respondent-appellant has not complied with the Parks, Recreation and Historic Preservation Law. (Matter of Kirk-Astor Dr. Neighborhood Assn. v Town Bd., 106 AD2d 868.) IX. Respondent-appellant’s proposed condemnation of petitioners-respondents’ lands will not accomplish a public use, benefit or purpose.
   OPINION OF THE COURT

Hancock, Jr., J.

Under ECL 3-0305 (1), the Commissioner of the Department of Environmental Conservation (DEC) is empowered to "acquire any real property which he deems necessary for any of the purposes or functions of the department, by purchase or as provided in the eminent domain procedure law” (emphasis added). With regard to acquisitions for purposes of fish and wildlife management, such as providing the public fishing access involved here, the Commissioner has specific authority under ECL 11-2103 (1) to "acquire [lands] by lease, purchase, gift, devise, agreement or otherwise” (emphasis added). The narrow question presented is whether the absence of explicit reference to eminent domain power in ECL 11-2103 precludes the exercise of that power, granted generally to the Commissioner in ECL 3-0305, to condemn land for a public fishing purpose. We are persuaded by the plain language of ECL 3-0305 (1) and the pertinent legislative history that it does not.

Pursuant to its responsibility to manage the State’s fish and wildlife resources (see generally, ECL arts 11, 13), DEC proposed a "low-key fishing access site” on the southside of Keuka Lake. The facility, consisting of a boat-launching ramp and adjacent parking lot, was to be located in the Village of Hammondsport on 3.2 acres currently owned by Bath and Hammondsport Railroad Company. Following protracted environmental and historical impact studies, public hearings and comment, and modifications to DEC’S plans, the Commissioner approved the proposal including the condemnation of the necessary lakeshore property.

The village and the railroad company commenced separate EDPL 207 proceedings in the Appellate Division challenging, among other things, DEC’S statutory authority to acquire the railroad company’s land by eminent domain. The Appellate Division granted the petitions and annulled DEC’s determination on the ground that, absent explicit, specific provision in ECL 11-2103, acquisitions by eminent domain were not authorized for public hunting and fishing grounds. We now reverse.

The controlling principle in the interpretation of statutes is, of course, the Legislature’s intent (see, Ferres v City of New Rochelle, 68 NY2d 446, 451; People v Ryan, 274 NY 149, 152). With regard to ECL 3-0305 (1), the correspondence between that provision’s plain language and legislative history renders its meaning and intended purpose unmistakable. The provision literally authorizes the Commissioner to acquire "any” land for "any” departmental purpose or function through the proper condemnation procedures. Giving the statutory language its natural and obvious meaning (McKinney’s Cons Laws of NY, Book 1, Statutes § 94) and the unqualified word "any” its full significance as a general term (McKinney’s Statutes § 114; see generally, Price v Price, 69 NY2d 8, 15-16; McKinney’s Statutes §92), the conclusion is inescapable that ECL 3-0305 (1) is intended to be a general authorization to employ eminent domain within the full scope of the Department’s responsibilities. This reading of the statute is confirmed by its legislative history.

A brief review of that history demonstrates that the Legislature intended to provide the Commissioner with broad condemnation power, exercisable for each of the proper functions of the Department — including fish and wildlife management. Under current law, DEC has three major areas of responsibility: lands and forests, fish and wildlife, and water resources. Prior to 1960, the exercise of eminent domain by the former Department of Conservation was authorized only with regard to its division of lands and forests. The old Conservation Law, in its article dealing exclusively with lands and forests, contained a limited provision permitting condemnation solely for the Adirondack and Catskill parks (§ 59 [L 1916, ch 451]). The general provisions of the statute — as well as those pertaining to fish and wildlife — made no reference to any type of land acquisition. Despite various amendments and modifications to the statute over the next 33 years (see, e.g., L 1938, chs 40, 363; L 1955, ch 630), there remained only the single limited provision authorizing the exercise of eminent domain.

In 1960, the Legislature replaced that eminent domain provision with a new one (§ 13 [L 1960, ch 759]). Notably, the new provision was placed, not in the article pertaining to lands and forests but, in the one dealing with the over-all organization of the Department and the powers generally exercisable by the Commissioner. The language of this new provision, together with its placement in the general article of the Conservation Law, dispels any doubt that the Legislature intended to authorize the exercise of eminent domain for the various functions of the Conservation Department.* * Moreover, the memoranda supporting enactment of the new provision confirm that legislative intent (see, e.g., Governor’s Approval Mem, Bill Jacket, L 1960, ch 759, 1960 NY Legis Ann, at 540 ["the bill repeals the existing limited land appropriation procedure” and "authorizes the Conservation Department to acquire the land for any conservation purpose”]; see also, to the same effect, Attorney-General’s Mem; Conservation Department Mem; Mem of Joint Legislative Committee on Natural Resources).

In 1970, the Department of Environmental Conservation was created by a merger of the former Conservation Department and the Water Resources Commission (L 1970, ch 140). Two years later, the Environmental Conservation Law was codified and the provision granting general eminent domain power was renumbered ECL 3-0305, with the former exception for water resources functions deleted (L 1972, ch 664). Finally, in 1978, ECL 3-0305 was amended to require that condemnation be exercised in accordance with the new Eminent Domain Procedure Law (L 1978, ch 727). That is the current state of the statute. Nothing in the recodification of the old Conservation Law or in the subsequent amendments to the Environmental Conservation Law has altered the purpose or effect of the general eminent domain provision originally enacted in 1960, now ECL 3-0305 — i.e., to authorize the condemnation of land for the broad range of Department functions, including the establishment of fish and wildlife areas.

The rule relied on by petitioners and the court below, that eminent domain statutes must be strictly construed (see, Schulman v People, 10 NY2d 249, 255-256; Society of N. Y. Hosp. v Johnson, 5 NY2d 102, 105-106), does not support a different conclusion. Whether construed strictly or otherwise, the plain language of ECL 3-0305 (1), conferring the power of eminent domain in unqualified terms, can mean only one thing — i.e., the Legislature intended a general grant of authority to the Commissioner to condemn property for "any of the purposes or functions of the department” (emphasis added).

Notwithstanding the unrestricted grant of authority in ECL 3-0305 (1), petitioners perceive a contradictory legislative intent in ECL 11-2103 (1) to preclude the use of eminent domain for acquisitions under article 11. There is nothing in ECL 11-2103 (1) which expressly limits or prohibits the use of condemnation; it merely enumerates diverse methods of voluntary acquisition which DEC may employ for fish and wildlife purposes. Petitioners, nonetheless, argue that the omission of any mention of eminent domain in that provision evinces a legislative intent to exclude condemnation from the means available to acquire fish and wildlife lands. To find this purported exclusion, petitioners go beyond the statutory language and employ two rules of construction. First, they apply "ejusdem generis” (see, McKinney’s Statutes § 239 [b]) and conclude that the Legislature specifically intended the "or otherwise” phrase in ECL 11-2103 (1) to encompass only voluntary acquisitions such as purchase and lease. Then, petitioners rely on "expressio unius est exclusio alterius” (see, McKinney’s Statutes § 240) to interpret the absence of specific mention of eminent domain in ECL 11-2103 (1) as an intentional withholding of that power from fish and wildlife management and, thus, an exception to the general grant in ECL 3-0305 (1).

Such an application of the rules of construction is inappropriate here. The purpose of such rules is to assist in ascertaining legislative intent, not to defeat it (see, McKinney’s Statutes § 92 [b]; § 239, at 409; § 240, at 414). To give ECL 11-2103 (1) the interpretation urged by petitioners would be to transform the general grant of power in ECL 3-0305 (1), to condemn for the varied departmental purposes or functions, into a largely restricted one, exercisable only where particularly specified. There is simply no reason to resort to canons of construction to "discover” in ECL 11-2103 (1) a "legislative intent” directly contrary to the Legislature’s evident purpose as reflected in the language and history of ECL 3-0305 (1).

Nor are we persuaded that, because the power of eminent domain is conferred with varying limitations in certain other provisions of the present consolidated Environmental Conservation Law (see, e.g., ECL 9-0501, 15-0311, 16-0107, 45-0113 [1]), it should be concluded that the Legislature intended to preclude the Commissioner from exercising that power with respect to fish and wildlife acquisitions where it has not been specifically granted. Again, the implied legislative intent on which the argument is based depends upon the rule of statutory construction "expressio unius est exclusio alterius” (see, McKinney’s Statutes § 240) which should not be used to frustrate the Legislature’s purpose in granting the unconditional general eminent domain power in ECL 3-0305 (1). The provisions of the ECL authorizing eminent domain for specific purposes are the result of the current statute’s historical evolution as an amalgamation of related enactments and are, arguably, in some cases surplusage. Whether any of these provisions is inconsistent with or somehow limits the Commissioner’s general power under ECL 3-0305 (1), we need not decide. We hold only that no such limitation on that general power was intended by the omission of explicit reference to eminent domain as one of the means of acquisition specified in ECL 11-2103 (1).

Accordingly, the orders of the Appellate Division should be reversed and the matters remitted for consideration of the issues not reached by that court.

Kaye, J.

(dissenting). I would affirm the unanimous Appellate Division orders granting the petitions to annul the determination of the Department of Environmental Conservation.

I cannot agree that the question is as posed by the majority —"whether the absence. of explicit reference to eminent domain power in ECL 11-2103 precludes the exercise of that power, granted generally to the Commissioner in ECL 3-0305, to condemn land for a public fishing purpose.” (Majority opn, at 436-437.) Nor can I agree that the answer, even to this question, is plain, unambiguous, unmistakable or without doubt, as the majority repeatedly insists.

The difficulty is not simply with what ECL 11-2103 (1) omits, but with what it says: "The department shall have power to acquire by lease, purchase, gift, devise, agreement or otherwise from any sources, lands, waters or lands and waters, or any right or interest therein for the purpose of establishing and maintaining public hunting, trapping and fishing grounds.” Some sections of the ECL expressly gave the Department of Environmental Conservation the power to acquire property by eminent domain; still others were silent on the subject. By contrast, ECL 11-2103 (1) gave the Department power to acquire land for fish and wildlife management only by way of voluntary transfer. That is the meaning of the specific grant of power to acquire by "lease,” "purchase,” "gift,” "devise” and "agreement”. The words "or otherwise” must be read as meaning like in kind to the categories that precede that phrase or it would swallow up the section. We have so held countless times (see, e.g., People v Illardo, 48 NY2d 408, 416; Matter of Bowen v Allen, 13 NY2d 663, affg 17 AD2d 12 [Bergan, P. J.]; Schulman v People, 10 NY2d 249, 256; Daly v Haight, 224 NY 726, affg 170 App Div 469; Philbrick & Brother v Florio Co-op. Assn., 200 NY 526, affg on opn at 137 App Div 613; Matter of Hermance v Board of Supervisors, 71 NY 481, 486-487).

The matter thus is not one of mere omission of eminent domain power from ECL 11-2103 (1) but of the Legislature’s specific grant of only limited acquisition power, now overridden by the court.

While the Legislature’s intent is surely controlling in the interpretation of statutes, in questions of the condemnation power, the Legislature’s expression of its intent is particularly weighty. "One of the most firmly established principles of the law of eminent domain is that the burden is on a party seeking to exercise the power of eminent domain to show a warrant from the legislature either in express terms or by necessary implications.” (1A Nichols, Eminent Domain § 3.213 [3d ed 1985].) Time and again we have recognized that because the power of eminent domain is exercised in derogation of the rights of citizens, statutes that purport to delegate the power must be strictly construed (see, e.g., Society of N. Y. Hosp. v Johnson, 5 NY2d 102, 106-107). The power will not be extended or enlarged by inference or implication (see, Schulman v People, 10 NY2d 249, 255, supra). "Even though there be an apparent grant of the power, if such grant is not clear and explicit * * * the grant will not be implied.” (1A Nichols, op. cit., at 3-84.) If there is a doubt as to whether or not the power exists, it "should be solved adversely to the claim of power.” (Matter of New York & Harlem R. R. Co. v Kip, 46 NY 546, 552; see also, McKinney’s Cons Laws of NY, Book 1, Statutes § 293, at 453).

The Legislature may well have intended the eminent domain power conferred by ECL 3-0305 (1) to extend to all lands for all conceivable departmental functions, as the majority now holds; while the predecessor statute (Conservation Law § 13 [1]) began, "[notwithstanding any other provision of this chapter” (majority opn, at 438, n 2), those words have been deleted from ECL 3-0305 (1). The Legislature may well have intended to supersede its restrictive grant in ECL 11-2103 (1) and in the several other sections that similarly bestow only limited acquisition powers on the Department; the majority now sweeps those sections away as "arguably * * * surplus-age.” (Majority opn, at 442.) In neither respect is the legislative intent plain, unambiguous, unmistakable or free from doubt as the majority says. If indeed that is what the Legislature intends, it should say so. Until it does, like the Appellate Division I would read the statutes just as they are written and grant the petitions.

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

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

      . These two sections currently provide as follows:
      "Article 3 — Department of Environmental Conservation; General Functions, Powers, Duties and Jurisdiction”.
      "§ 3-0305. Acquirement of real property by purchase or appropriation
      "1. The commissioner when moneys therefor have been appropriated by the legislature or are otherwise available, may acquire any real property which he deems necessary for any of the purposes or functions of the department, by purchase or as provided in the eminent domain procedure law” (emphasis added).
      "Article 11 — Fish and Wildlife”
      "§ 11-2103. Acquisition and use of property”
      "1. The department shall have power to acquire by lease, purchase, gift, devise, agreement or otherwise from any sources, lands, waters or lands and waters, or any right or interest therein for the purpose of establishing and maintaining public hunting, trapping and fishing grounds” (emphasis added).

      . The new eminent domain provision (§ 13; L 1960, ch 759), provided in pertinent part:
      "Acquisition of real property by purchase or appropriation
      ”1. Notwithstanding any other provision of this chapter or any other law, the commissioner, when moneys therefor have been appropriated by the legislature or are otherwise available, may acquire any real property which he deems necessary for any of the purposes or functions of the department,
        other than the purposes and functions of the water resources commission provided for in article five of this chapter, by purchase or, in the manner hereinafter specified, by appropriation. Title to such real property shall be taken in the name of and be vested in the people of the state of New York; provided, however, that no real property shall be so acquired by purchase unless the title thereto shall be approved by the attorney general.” (Emphasis added.) (The remainder of section 13 detailed the procedures to be followed by the Commissioner when exercising the power of eminent domain.)

      . One major exception, actually outside the jurisdiction of the Conservation Department, was explicitly noted — i.e., the purposes and functions of the Water Resources Commission, which had been created the same year (L 1960, ch 7). Although the Conservation Commissioner was its chairman, the Water Resources Commission had its own powers and responsibilities set forth in a separate statute (see, e.g., L 1960, ch 7, Conservation Law §§ 410, 423, 427).

      . As evident from the supporting memoranda for the 1978 amendment, the current ECL 3-0305 (1) has two basic purposes: (1) to require DEC to follow the EDPL when appropriating real property and (2), as long as the Department does so, to continue to permit the Commissioner to acquire land by eminent domain "as he deems necessary for any of the purposes of the department” (see, Governor’s Program Mem, Bill Jacket, Senate Bill 10339, L 1978, ch 727, 1978 NY Legis Ann, at 399; see also, Department of State Mem in Support; Office of General Services Mem; Department of Transportation Mem).

      . If the argument is given its logical application, it would follow that the State’s power to acquire property by eminent domain for public use of lands and forests has been largely curtailed inasmuch as several provisions of article 9 dealing with acquisition for lands and forests (see, e.g., ECL 9-0105, 9-0105 [2], [7], [7-a]; 9-0107, 9-0109) currently contain no specific grant of eminent domain power. As noted (see discussion of statutory history, supra, at 438-440, n 4), the authorization to acquire property by eminent domain, which was originally contained among the provisions dealing with lands and forests (L 1916, ch 451, Conservation Law § 59), was transferred in 1960 to that part of the statute pertaining to the over-all organization of the Department (Conservation Law § 13 [L 1960, ch 759]). The precursor of the present ECL 3-0305 (1) was thus enacted. There is nothing in the statutory history suggesting that the Legislature contemplated that, by transferring the eminent domain authority to the general provision and not mentioning it specifically in certain provisions, it was, by implication, effecting a repeal of much of the Department’s power of eminent domain for lands and forests, including the long-held power for acquisition of lands within the Adirondack and Catskills parks (see, ECL 9-0105 [2], [7], [7-a]; 9-0107, 9-0109).

       The majority expresses concern that to read the statutes as they are written would largely curtail the State’s power to acquire property for public use of lands and forests, for those sections contain no specific grant of eminent domain power (majority opn, at 441, n 5). That concern is not only irrelevant here but also unfounded. The cited sections do not specifically limit the Department’s power and can be read harmoniously with a broad grant of eminent domain power in ECL 3-0305; ECL 11-2103 cannot.


source: Caselaw Access Project

author: Alexander, J.

license: Public Domain

text:
    In the Matter of Jay H. Kisloff, on Behalf of Donald Wilson, True Name Donald Willis, Respondent, v George D. Covington, as a Justice of the Supreme Court, Bronx County, et al., Appellants.
    Argued March 28, 1989;
    decided May 2, 1989

      POINTS OF COUNSEL

      Robert T. Johnson, District Attorney (Peter D. Coddington and Michael R. Gordon of counsel), for appellants.
    I. The plea court wisely exercised its inherent judicial powers to vacate an unsustainable judgment based upon a mutual mistake, and the court below erroneously overruled this action by misconstruing precedent from this court. (Bordenkircher v Hayes, 434 US 357; Matter of Lockett v Juviler, 65 NY2d 182; People v Di Raffaele, 55 NY2d 234; Chimart Assocs. v Paul, 66 NY2d 570; Ball v Shepard, 202 NY 247; Brauer v Central Trust Co., 77 AD2d 239; Alden Auto Parts Warehouse v Dolphin Equip. Leasing Corp., 682 F2d 330; People v McConnell, 49 NY2d 340; People v Danny G., 61 NY2d 169; Bohlen v Metropolitan El. Ry. Co., 121 NY 546.) II. The petition for a writ of prohibition should be denied due to petitioner’s unexplained and inexcusable failure to promptly bring this action, where respondent relied to its detriment on petitioner’s inaction. (Matter of Vickery v Village of Saugerties, 106 AD2d 721, 64 NY2d 1161; Matter of Getter v Veteran, 49 AD2d 574, 38 NY2d 1003; Matter of Campbell v Pesce, 60 NY2d 165; People v Washington, 71 NY2d 916.)

      Thomas M. O’Brien and Robert M. Baum for respondent.
    The court below correctly ruled that the trial court had no authority to vacate respondent’s plea over his objection. (Matter of Campbell v Pesce, 60 NY2d 165; People v Selikoff, 35 NY2d 227; Matter of Lockett v Juviler, 65 NY2d 182; Matter of Lyons v Goldstein, 290 NY 19.)
   OPINION OF THE COURT

Alexander, J.

On this appeal, we are again confronted with the issue of a court’s inherent power to vacate an illegally imposed plea and sentence once the criminal proceeding has terminated by the entry of judgment.

Pursuant to a plea bargain struck between his attorney and the People, the defendant who, along with a codefendant, had been indicted for the crimes of robbery, second degree (Penal Law § 160.10) (two counts), assault, second degree (Penal Law § 120.05), and grand larceny, third degree (Penal Law § 155.35), withdrew his not guilty plea and entered a plea of guilty to attempted grand larceny, third degree (Penal Law §§ 110.00, 155.35), in full satisfaction of the indictment upon a promise of a sentence of 1 Vi to 3 years’ imprisonment.

At the time the plea bargain was agreed to and the guilty plea entered, all parties, the Judge, the Assistant District Attorney and defense counsel, believed that attempted grand larceny, third degree, was a class E felony offense, and that since defendant was a predicate felony offender the shortest authorized indeterminate sentence that could be imposed was for a maximum of at least three years (see, Penal Law § 70.06 [3] [e]) and a minimum of one half the maximum, i.e., IV2 years (see, Penal Law § 70.06 [4] [b]). Thus, the plea bargain reflected the intention of all the parties to sentence defendant to the minimum indeterminate sentence for an E felony in full satisfaction of the indictment. As previously arranged, on July 29, 1987, another Judge, in the absence of the Judge before whom the plea had been taken, imposed the agreed upon sentence and defendant began serving his sentence.

On May 14, 1986, the date on which the crimes for which defendant had been indicted were committed, attempted grand larceny, third degree, was a class A misdemeanor (see, Penal Law § 110.05 [7]; former § 155.30) for which the maximum sentence was one year (see, Penal Law § 70.15); the Legislature’s reclassification of this crime as an E felony did not become effective until November 1, 1986 (L 1986, ch 515; see, Penal Law § 110.05 [6]; § 155.35). Neither the plea Judge, the sentencing Judge, the Assistant District Attorney nor defense counsel had been aware of this fact at the time of the plea and sentencing. The error was discovered, however, and defendant was returned before the plea Judge, who, in an effort to effectuate what had been the intent of the parties, proposed that defendant plead to grand larceny in the fourth degree, an E felony (see, Penal Law § 155.30) that would support the sentence agreed to and previously imposed. When defendant rejected the proposal and insisted upon being sentenced in accordance with his misdemeanor plea to attempted grand larceny, third degree, the court vacated the plea and set the matter down for trial on the indictment.

Thereafter, defendant commenced this article 78 proceeding, seeking to prohibit further prosecution on the felony charges, to have his original plea reinstated and to be resentenced as a misdemeanor offender. Following a stay of prosecution granted by one of its Justices, a divided Appellate Division, relying on our decision in Matter of Campbell v Pesce (60 NY2d 165), granted the application prohibiting respondents from pursuing further criminal proceedings against defendant-petitioner on the original indictment, reinstating the judgment of conviction of July 29, 1987 and remanding the matter to Supreme Court for resentencing. Leave to appeal to this court was granted to the People by the Appellate Division and the question "Was the order of this Court, which reversed the order of the Supreme Court, properly made?” certified to us.

The People argue to us that because all the parties believed that defendant was pleading to a crime to which a lawful felony level sentence could be imposed, whereas in fact he was only pleading to a misdemeanor offense, there was a mutual mistake of a material fact which the plea court could correct in the exercise of its inherent power "to conform the record to the truth”. They analogize to principles of contract law in support of their contention that because of this mutual mistake the plea bargain was voidable and therefore subject to vacatur. They contend further that because the sentence imposed upon defendant’s plea to what was in fact attempted grand larceny as a misdemeanor was not a lawful sentence imposed "in accordance with law”, CPL 430.10 posed no impediment to Supreme Court exercising its inherent common-law power to rectify the mistake. For the reasons that follow, we reject these arguments and affirm the judgment of the Appellate Division.

We begin our discussion by noting that the extraordinary remedy of prohibition is available under the circumstances of this case. Where a court acts or threatens to act either without jurisdiction or in excess of its authorized powers in a proceeding over which it has jurisdiction, the extraordinary remedy of prohibition lies (see, Matter of Rush v Mordue, 68 NY2d 348, 352). Of course, where a court has the power to vacate the plea and sentence and restore the action to its prepleading status, further proceedings under the same accusatory instrument would not be barred (see, CPL 40.30 [3]; People v Bartley, 47 NY2d 965, 966). Because Supreme Court had neither statutory nor inherent power to vacate the plea and sentence in the circumstances of this case, however, prohibition is properly available and further prosecution on this indictment is barred since otherwise the defendant’s fundamental constitutional right against double jeopardy would be abridged (Matter of Rush v Mordue, 68 NY2d, at 354, supra; see, Matter of Campbell v Pesce, 60 NY2d 165, supra).

No argument is made and indeed none can properly be made here that Supreme Court possessed any statutory power to vacate the plea and sentence and restore the original charges (see, CPL art 440; Matter of Campbell v Pesee, 60 NY2d, at 168, supra). Rather, the People argue that Supreme Court possessed "inherent power” to correct what was a mutual mistake.

The issue as to whether and to what extent a court has "inherent power” in respect to proceedings before it has been and continues to be a vexing problem. Although we have said that "[c]ourts traditionally have inherent power to vacate orders and judgments obtained by fraud or misrepresentation” (see Matter of Lockett v Juviler, 65 NY2d 182, 186) and have held that this power may be exercised in both civil cases (Furman v Furman, 153 NY 309, 314; Matter of Holden, 271 NY 212, 218) and criminal cases (Matter of Lyons v Goldstein, 290 NY 19, 25), we have made clear that a court has no "inherent power” in other situations such as would, e.g., enable it to dismiss a criminal proceeding for failure to prosecute (see, People v Douglass, 60 NY2d 194, 204-205). Additionally, we have held recently that a court which has accepted a plea in violation of the Criminal Procedure Law may not vacate the illegal plea and reinstate the original charges after sentence has commenced (Matter of Campbell v Pesce, 60 NY2d, at 167, supra). In doing so, however, we recognized and reaffirmed a court’s power, within the statutory framework, to correct its own error in connection with accepting a plea or imposing sentence. We have recognized such power in instances where the record demonstrates that the Judge merely misspoke in imposing sentence (People v Wright, 56 NY2d 613, 614; People v Minaya, 54 NY2d 360, 364, cert denied 455 US 1024) or it is clear from the record that a patent clerical error has been made in imposing sentence (People ex rel. Hirschberg v Orange County Ct., 271 NY 151, 156). We noted in Matter of Campbell v Pesce, however, that "[i]n no instance have we recognized a court’s inherent power to vacate a plea and sentence over defendant’s objection where the error goes beyond mere clerical error apparent on the face of the record and where the proceeding has been terminated by the entry of judgment” (60 NY2d, at 169, supra; cf., People v Bartley, 47 NY2d 965, supra [illegally accepted plea vacated on court’s inherent power prior to imposition of sentence]).

The reliance by the People upon such cases as People ex rel. Hirschberg v Orange County Ct. (271 NY 151, supra), Matter of Lyons v Goldstein (290 NY 19, supra) and Matter of Lockett v Juviler (65 NY2d 182, supra) in support of an assumed "inherent power”, derived from the common law, to "conform its records to the conceded or apparent facts” (People ex rel. Hirschberg v Orange County Ct., 271 NY, at 156, supra) or to "make them truthful” (Dalrymple v Williams, 63 NY 361, 362) is misplaced. Both Lyons and Lockett were concerned with the "inherent power of a court to set aside its judgment which was procured by fraud and misrepresentation” (Matter of Lyons v Goldstein, supra, at 25; see, Matter of Lockett v Juviler, supra, at 186).

In Lyons, we observed that such "inherent power * * * cannot be doubted”, and that any interpretation of the Code of Criminal Procedure or the Penal Law that would preclude granting a hearing on the merits to a defendant on a claim of fraud and misrepresentation "would be repugnant to the due process clauses” of the Federal and State Constitutions (290 NY, at 25, supra). In Lockett, in affirming the grant of the People’s motion to vacate a plea of lack of responsibility by reason of mental disease or defect (CPL 220.15), notwithstanding that no express statutory authority conferred such right upon the People (cf., CPL 220.60 [3]), we reaffirmed the court’s traditional inherent power to vacate orders and judgments obtained by fraud and misrepresentation other than intrinsic fraud such as perjury at trial (65 NY2d, at 186, supra). We observed that no principled reason precluded exercising this power at the behest of the People, as had previously been done on the application of the defendant, so long as there was no constitutional impediment to doing so (id., at 187).

Hirschberg (supra) and Dalrymple (supra) are equally inapposite since they both involved the power of the court to correct clerical errors in its records. In Hirschberg, we expressed our belief "that any court from its very nature as a court must have inherent power to conform its records to the conceded or apparent facts. Such a power relates, however, to clerical errors, mistakes in recording the true facts and should be exercised with great caution * * * [t]he proceedings which have taken place or the rulings and judgments which in fact have been given cannot thus be amended or changed” (271 NY, at 156, supra).

No basis exists here for the exercise of the court’s "inherent power” such as was invoked in Lyons, Lockett, Hirschberg or Dalrymple. However, the Criminal Procedure Law recognizes illegality as a basis for setting aside a sentence. A criminal defendant may seek such relief at any time after the entry of judgment (CPL 440.20 [1]; see also, CPL 430.10). The People may also make such an application but must do so within one year after the entry of the judgment (CPL 440.40 [1]; see also, CPL 430.10). If the sentence is vacated under CPL 440.20 (1) or CPL 440.40 (1), however, the validity of the underlying conviction is unaffected and the defendant must be resentenced in accordance with law (see, CPL 440.20 [4]; 440.40 [5]).

In the case at bar, it appears that both the agreed to plea and sentence were illegal: the plea, because defendant, a predicate felon, was permitted to plead to what in fact was a misdemeanor offense in full satisfaction of the indictment in violation of CPL 220.10 (5) (c) and the sentence, because Supreme Court directed that defendant serve felony time for this misdemeanor plea (see, Penal Law § 70.15 [misdemeanor sentences shall not exceed one year]). Once defendant’s sentence was imposed and judgment was entered, however, his plea could not be disturbed based upon the parties’ mutual mistake since no statutory basis existed for setting aside such a plea and courts have no "inherent power to vacate a plea and sentence over defendant’s objection where the error goes beyond mere clerical error apparent on the face of the record and where the proceeding has terminated by the entry of judgment” (Matter of Campbell v Pesce, 60 NY2d, at 169, supra; cf., People v Bartley, 47 NY2d 965, supra). And while defendant’s sentence was assailable for illegality pursuant to the CPL, the proper curative course in the absence of defendant’s consent to do otherwise, was to impose a new sentence consistent as a matter of law with defendant’s misdemeanor plea (see, CPL 440.20 [4]).

In sum, because no statutory or other basis existed for Supreme Court’s vacatur of the judgment of conviction, the court acted in excess of its power. Additionally, any further criminal proceedings on the original charges are barred by petitioner’s constitutional right not to be twice put in jeopardy (see, Matter of Campbell v Pesce, 60 NY2d, at 169, supra; cf., People v Bartley, 47 NY2d, at 966-967, supra). Therefore, the Appellate Division properly reinstated the original plea and remanded the matter for resentencing of petitioner as a misdemeanor offender. Respondents’ other arguments have been considered and are without merit. Accordingly, the judgment of the Appellate Division should be affirmed and the certified question not answered as unnecessary.

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

Judgment affirmed, without costs. Certified question not answered as unnecessary.

      . No appeal has been taken to this court from the Appellate Division dismissal without prejudice of the article 78 petition of the codefendant Kevin Burke, true name Burnice Campbell (see, 141 AD2d 319).

        . Notwithstanding the pendency of further judicial action in the form of a remand for resentencing, the judgment appealed from is final because petitioner received the full relief sought in his article 78 petition (see, Inland Vale Farm Co. v Stergianopoulos, 65 NY2d 718, 719, n). Thus, the certified question should not be answered as unnecessary.


author: Simons, J.

text:
    Lai Ling Cheng et al., as Coconservators of Teresa D. Wong, Conservatee, Plaintiffs, v Modansky Leasing Co., Inc., et al., Defendants and Third-Party Plaintiffs, et al., Third-Party Defendants. Edward J. Murtaugh, Nonparty Appellant; Lipsig, Sullivan & Liapakis, P. C., Nonparty Respondent.
    Argued March 29, 1989;
    decided May 4, 1989

      POINTS OF COUNSEL

      Jon Holden Adams for appellant.
    I. The court below erred when it held that Judiciary Law § 475 prevented appellant from being awarded a contingent percentage fee. (Matter of City of New York [United States of Am. — Coblentz], 5 NY2d 300; Matter of Rosentover v Weiss, 247 App Div 137, 272 NY 557; Cunningham v Sizer Steel Corp., 1 F2d 653; Sterling v Miller, 2 AD2d 900, 3 NY2d 778; Matter of Fuller, 122 AD2d 792; Oberman v Reilly, 66 AD2d 686.) II. The division of the fee between the attorneys should be based on the relative contribution of each to the end result. (Buckley v Surface Transp. Corp., 277 App Div 224; Matter of Cordes v Purcell, Fritz & Ingrao, 89 AD2d 870; Paulsen v Halpin, 74 AD2d 990; Kern v Kambach, 27 AD2d 954; McLean v Michaelowsky, 117 Misc 2d 699; Reubenbaum v B. & H. Express, 6 AD2d 47; Chugerman v Wagner, 42 AD2d 772; Bradbury v Farber, 31 AD2d 824; Adams v Legett, 15 AD2d 856; Schwartz v Tenenbaum, 7 AD2d 866.) III. Judge Rosenblatt’s decision as to the allocation of the fee between appellant and respondent should be affirmed. (Buckley v Surface Transp. Corp., 277 App Div 224; Reubenbaum v B. & H. Express, 6 AD2d 47; Clark v Delaware & Hudson R. R. Corp., 245 App Div 447; Steinleger v Frankel, 117 Misc 693.)

      Cheryl Eisberg Moin, Pamela Anagnos Liapakis and Cyrus

      M. Diamond, respondent pro se.

    I. The court below correctly awarded compensation on a flat quantum meruit basis to an attorney who was never of record. (Teichner v W. & J. Holsteins, 64 NY2d 977; Demov, Morris, Levin & Shein v Glantz, 53 NY2d 553; Matter of Goldin, 104 AD2d 890; Brill v Chien Yanun Kao, 61 AD2d 1000; Matter of Tillman, 259 NY 133; Martucci v Brooklyn Children’s Aid Socy., 284 NY 408; Roskind v Brown, 29 AD2d 549; Turner v Steve Brody, Inc., 24 AD2d 904; Matter of Cordes v Purcell, Fritz & Ingrao, 89 AD2d 870; Paulsen v Halpin, 74 AD2d 990.) II. Appellant’s request for reinstatement of the hearing court’s award is beyond the review power of this court. (Matter of Auditore, 278 NY 234; Matter of Von Bulow, 63 NY2d 221; Jones v Maphey, 50 NY2d 971; Patron v Patron, 40 NY2d 582; Quain v Buzzetta Constr. Corp., 69 NY2d 376; People ex rel. McCanliss v McCanliss, 255 NY 456; Jordan v Freeman, 40 AD2d 656.)
   OPINION OF THE COURT

Simons, J.

This appeal involves a dispute between incoming and outgoing attorneys retained in a personal injury claim over the proper fee to be awarded to the outgoing attorney. The incoming attorneys contend that his fee should be determined on a fixed dollar amount based on the reasonable value of his services. The outgoing attorney asserts that he is entitled to a contingent percentage fee based on his proportionate contribution to the final recovery.

The underlying litigation involves a claim on behalf of plaintiffs’ conservatee, Teresa Wong. She sustained massive injuries permanently incapacitating her, both mentally and physically, when her vehicle collided with a tractor trailer that had jackknifed and crossed over into the opposite lane of traffic in which she was proceeding. Shortly after the accident, her mother and uncle retained appellant, Edward Murtaugh, to prosecute her claim against defendants and agreed to pay him a contingent fee measured by one third of the recovery. Murtaugh instituted conservatorship proceedings, investigated and gathered evidence of the accident, and performed various other preliminary services. Before he commenced an action, however, plaintiffs discharged him, without cause, and retained the law firm of respondent Lipsig, Sullivan and Liapakis, agreeing to pay them a contingent fee based on one third of the recovery also. At the time of the substitution, the attorneys were unable to agree on the fee to be paid Murtaugh and, accordingly, the Lipsig firm sent a letter to him requesting that he turn over his file and acknowledging that he had a "lien for prior legal services rendered * * * the amount of which shall be subsequently determined at the conclusion of the litigation”. The letter provided that if the attorneys were unable to agree on the value of Murtaugh’s services at the conclusion of the action, the matter was to be submitted to a court for determination. Murtaugh accepted the terms of the letter by signing and returning a copy.

The Lipsig firm subsequently commenced a negligence action which was settled before trial for $1,800,000. The court set the attorney’s fee at $540,000, ordered the sum held until the apportionment of the fee between the attorneys was resolved and disbursed the remainder. When the attorneys could not agree, this proceeding was instituted. After a hearing Supreme Court determined that Murtaugh was entitled to a contingent percentage fee based on the proportionate share of the work he performed in the lawsuit. Analyzing the work of each party and their relative contributions to the resulting settlement, the court fixed Murtaugh’s percentage at 20% of the total fee ($108,000), plus interest.

The Appellate Division modified, holding that a discharged attorney claiming a contingent percentage of the attorney’s fee must have been the attorney of record, apparently believing that the attorney must have a lien pursuant to section 475 of the Judiciary Law to be entitled to such a fee. Because Murtaugh’s name did not appear on the "pleadings, motion papers, affidavits, briefs or record” of the case, the court found he had not become an attorney of record, was not entitled to a charging lien under Judiciary Law § 475, and therefore could not claim a contingent fee (137 AD2d 781, 783). Accordingly, it limited him to the reasonable value of his services measured by time and expenses. It deemed a fee of $35,000 reasonable and ordered that he be paid that sum with interest. We now reverse.

Under New York law a client may discharge an attorney at any time, with or without cause (Matter of Montgomery, 272 NY 323, 326; Reubenbaum v B. & H. Express, 6 AD2d 47, 48 [Breitel, J.]). When a client discharges an attorney without cause, the attorney is entitled to recover compensation from the client measured by the fair and reasonable value of the services rendered whether that be more or less than the amount provided in the contract or retainer agreement (Matter of Montgomery, supra, at 326-327). As between them, either can require that the compensation be a fixed dollar amount determined at the time of discharge on the basis of quantum meruit (Reubenbaum v B. & H. Express, supra, at 48) or, in the alternative, they may agree that the attorney, in lieu of a presently fixed dollar amount, will receive a contingent percentage fee determined either at the time of substitution or at the conclusion of the case (id.).

Where the dispute is only between attorneys, however, the rules are somewhat different. The outgoing attorney may elect to take compensation on the basis of a presently fixed dollar amount based upon quantum meruit for the reasonable value of services or, in lieu thereof, the outgoing attorney has the right to elect a contingent percentage fee based on the proportionate share of the work performed on the whole case (Matter of Cordes v Purcell, Fritz & Ingrao, 89 AD2d 870; Paulsen v Halpin, 74 AD2d 990, 991; Reubenbaum v B. & H. Express, supra, at 49). The percentage may be fixed at the time of substitution but, as several courts have recognized, is better determined at the conclusion of the case when such factors as the amount of time spent by each lawyer on the case, the work performed and the amount of recovery can be ascertained (see, Matter of Cordes v Purcell, Fritz & Ingrao, 89 AD2d 870, supra; Paulsen v Halpin, supra, at 991; Reubenbaum v B. & H Express, supra, at 49; Buckley v Surface Transp. Corp., 277 App Div 224, 226).

Notwithstanding this rule, respondent contends, and the Appellate Division agreed, that to enjoy the right to elect a contingent percentage fee, the outgoing attorney must be an attorney of record entitled to the protection of a lien granted by section 475 of the Judiciary Law. Murtaugh maintains that his status as attorney of record is irrelevant to the determination of his fee. He concedes he has no rights under Judiciary Law § 475 but asserts he needs none; he possesses a contractual lien, granted in respondent’s letter, fully securing any fee he is entitled to for prior legal services without resort to the security provided by the statute. The only issue is how the amount of his fee is to be measured.

At the time of his discharge, Murtaugh possessed a common-law retaining lien on the client’s file in his possession which secured his right under New York law to the reasonable value of the services he performed (see, Lebovic v Ballan tine & Sons, 12 AD2d 494). That lien depended upon his continued possession of the file. Immediately upon his discharge, he was entitled to be compensated in a fixed dollar amount, quantum meruit, before he released the file and thereby relinquished his lien (Matter of Weitling, 266 NY 184, 186-187; Turner v Steve Brody, Inc., 24 AD2d 904). When establishing such a fee, the court could take into consideration the original retainer agreement (see, Matter of Tillman, 259 NY 133, 135) but, contrary to the statement of the Appellate Division, it could not consider the size of the recovery. Indeed, if the fee is computed at the time of discharge, it is difficult to see how it could be considered.

Murtaugh’s present security arose when, in exchange for turning over the file, and thereby surrendering his rights under the retaining lien, he obtained from the Lipsig firm a contractual lien for prior legal services rendered in the action. The method of evaluating his fee, however, is independent of the security, whatever its source. Moreover, whether Murtaugh was an attorney of record was irrelevant to his right to elect between a fixed fee, measured by quantum meruit, or a contingent percentage fee, also measured by quantum meruit. The type of fee depends upon Murtaugh’s agreement with the Lipsig firm and whether it evidences his election of a contingent percentage fee.

Murtaugh claims that he elected a contingent percentage fee because the attorneys agreed in the letter that the amount of his fee would be "determined at the conclusion of the litigation”. We agree that, reasonably construed, this language provides that he was to be paid a percentage of the recovery. A fixed dollar fee based on the reasonable value of his services easily could have been calculated at the time of discharge without reference to the outcome of the litigation or the proportionate share of work performed by each lawyer. Inasmuch as the amount of the recovery played no part in evaluating that fee, there was no point in delaying payment of it. However, a contingent percentage fee is properly determined at the end of litigation when the amount of the recovery and the relative contributions of the lawyers to it can be ascertained (see, Buckley v Surface Transp. Co., supra).

Moreover, Lipsig’s interpretation of the agreement, as one providing only for fixed dollar amount, makes little sense from Murtaugh’s point of view because under that interpretation Murtaugh received no consideration for turning over his file. He surrendered his lien in exchange for another to secure payment at a later date of a fee to which he was immediately entitled. Although the contract did not explicitly provide for a "contingent percentage” fee, under the circumstances of this case we conclude that the terms of the letter necessarily contemplated such a fee. If the letter was ambiguous because it did not state so explicitly, then its terms must be strictly construed against the drafter, Lipsig, Sullivan and Liapakis (see, Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342, 348; Restatement [Second] of Contracts § 206).

Accordingly, the order should be reversed, with costs, and matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with this opinion.

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

Order reversed, etc.


author: Chief Judge Wachtler.

text:
    Jay B. Birnbaum, Respondent-Appellant, v Saul I. Birnbaum, Appellant-Respondent. Ilene L. Flaum, Respondent-Appellant, et al., Plaintiff, v Saul I. Birnbaum, Appellant-Respondent, and Jay B. Birnbaum, Respondent-Appellant.
    Argued March 30, 1989;
    decided May 9, 1989

      POINTS OF COUNSEL

      Richard H. Dolan for appellant-respondent.
    I. The rights and obligations of the parties are governed by principles of partnership law. (Salter v Ham, 31 NY 321; Corr v Hoffman, 256 NY 254; Heye v Tilford, 2 App Div 346, 154 NY 757;
      Hecht v City of New York, 60 NY2d 57; Alpert v 28 Williams St. Corp., 63 NY2d 557; Levy v Leavitt, 257 NY 461; Lanier v Bowdoin, 282 NY 32; Matter of Eddy, 175 Misc 1011, 262 App Div, 290 NY 677; Audino v Lincoln First Bank, 105 AD2d 1091, 65 NY2d 631; Darrow v Calkins, 154 NY 503.) II. Because Jay and llene breached the partnership agreement and did not perform any of their obligations to the partnership, they are not entitled to claim any financial benefit from the partnership. (Martin v Payton, 246 NY 213; Bagley v Smith, 10 NY 489; Corr v Hoffman, 256 NY 254; Gelder Med. Group v Webber, 41 NY2d 680; Cliffs Mgt. Corp. v Great E. Mgt. Co., 85 AD2d 584, 56 NY2d 643; Eiseman & Co. v Fruchtman, 211 App Div 543; Schnitzer v Josephthal, 122 Misc 15, 208 App Div 769; Friedman v Golden Arrow Films, 442 F2d 1099; Smith v Maine, 145 Misc 521.) III. In any event, Saul was entitled to reimbursement from the partnership for his expenses. (Schuler v Birnbaum, 62 AD2d 461; Kraemer v Gallagher, 18 AD2d 676; Steinberg v Goodman, 27 NY2d 304.)

      Norman M. Spindelman, Richard S. Brovitz and Carter H. Strickland for respondents-appellants.
    I. Saul, as fiduciary, could not secretly hire Victoria to perform services for the property which he had agreed to perform free of charge. (Meinhard v Salmon, 249 NY 458; Minion v Warner, 238 NY 413; Goergen v Maar, 2 AD2d 276; Matter of Lester, 87 Misc 2d 717; Matter of Rothko, 84 Misc 2d 830, 56 AD2d 499, 43 NY2d 305; Matter of Wolf, 67 AD2d 930; Matter of Lester, 172 App Div 509; Matter of Koch, 33 Misc 153; Chingos Constr. Corp. v Carlton Props., 30 Misc 2d 883.) II. The overwhelming weight of the evidence established that Victoria was an active participant in Saul’s scheme to divest Jay and llene from their share of the cash flow of the property and that her claims were totally illegitimate. III. Because Victoria is not a licensed real estate broker or salesperson, she is precluded, as a matter of law, from obtaining compensation from Cherry Hill. (Bendell v De Dominicis, 251 NY 305; Karlinsky v Silberman, 259 App Div 1016, 285 NY 666; Weston Funding Corp. v Lafayette Towers, 550 F2d 710; Matter of Doherty v Cuomo, 64 AD2d 847, 45 NY2d 960; Holte v Savory, 36 Misc 2d 30.) IV. Saul failed to sustain his burden of proving that the payments he made to or for himself and the additional sums he seeks are legitimate expenses of the project. (Meinhard v Salmon, 249 NY 458; Levy v Leavitt, 257 NY 461; Rosen Trust v Rosen, 53 AD2d 342, 43 NY2d 693; Cohen v Erdle, 282 App Div 569;
      Hapworth v Grievson, 255 App Div 927; Friedman v Golden Arrow Films, 442 F2d 1099; Myers v Bolton, 157 NY 393; Cole v Cole, 57 Misc 490; Cosgriff v Foss, 152 NY 104; Scott v Guernsey, 48 NY 106.) V. The partnership agreement is void, and any claims by Saul under it are barred by res judicata. VI. Saul repeatedly breached the partnership agreement. (Friedman v Golden Arrow Films, 442 F2d 1099; Schnitzer v Josephthal, 122 Misc 15, 208 App Div 769; Meinhard v Salmon, 249 NY 458.)
   OPINION OF THE COURT

Chief Judge Wachtler.

For many years respondent Saul Birnbaum and his brother Bernard Birnbaum engaged in joint real estate enterprises. When Bernard died in 1976, a large portion of his real estate holdings passed to his children, Jay Birnbaum and llene Flaum, who are appellants here. An intermixture of familial and economic discord followed, however, between Saul on one side and Jay and llene on the other, eventually resulting in a great deal of litigation, of which this case is a small part.

The present dispute involves a shopping center in Cherry Hill, New Jersey, in which Saul has a 50% interest, and in which Jay and llene each have a. 25% interest, as tenants in common. This property was obtained in 1980 in exchange for another piece of property that had been owned by Saul and Bernard. Soon after acquisition of the . Cherry Hill property the tenants in common signed a partnership agreement, naming Saul and Jay managing partners, and requiring that all parties convey their interest in the property to the partnership. Due to conflict between the parties, however, Jay never took an active role in the management of the property, nor did Jay or llene convey their interests in the property to the partnership. Nevertheless, through the efforts of Saul the shopping center became an ostensibly profitable endeavor.

The operation and management of the shopping center was a subject of continuous dispute which led to the commencement of numerous actions in the various courts of this State. These actions were consolidated into what essentially became a single accounting proceeding in New York County. From the myriad allegations of the parties in that proceeding, a single issue meriting discussion has filtered its way to this court for review: whether Saul could hire Victoria Tree, who later became his wife, to help develop the property, and properly charge her compensation amounting to hundreds of thousands of dollars to the property, without the consent of Jay and llene.

Victoria Tree is not a party in the present actions. The question presented here is whether Saul is entitled to charge Victoria’s compensation to the property; we do not have before us the question of whether Victoria is entitled to compensation from Saul personally.

The trial court, confirming a Referee’s report, concluded that Victoria’s compensation could not be charged to the property. It determined, initially, that Saul personally was not entitled to remuneration for his services in developing the property. The trial court then held that because the services attributed to Victoria were actually part of Saul’s fiduciary duty to Jay and llene, Victoria was also precluded from receiving compensation from the property, without the consent of Jay and llene. The Appellate Division left undisturbed the conclusion that Saul was not entitled to compensation. It reversed the trial court on the issue of payments to Victoria, however, reasoning simply that because Victoria did some work to benefit the property Saul was entitled to charge her compensation to the property. The Appellate Division then certified to this court the question of whether the Appellate Division’s order was properly made. We answer this question in the negative.

In the case now before us the lower courts declined to precisely categorize the interests of the parties as partners, joint venturers or tenants in common, although they did conclude that Saul occupied a fiduciary relationship with Jay and llene. Jay and llene argue here that Saul’s role as "patriarch” of the family, along with his duties as either a partner or a tenant in common in the Cherry Hill property gave rise to a fiduciary duty. In contrast, Saul maintains that a partnership exists, which is now in the process of winding up. Partners, however, and particularly managing partners, owe a fiduciary duty to the other partners (see, Meinhard v Salmon, 249 NY 458, 468). Consequently, even if we accept Saul’s characterization of the relationships operating here, the result is the same: he owed a fiduciary duty to Jay and llene to protect their interests in the Cherry Hill shopping center.

Saul’s financial transactions with Victoria violated his fiduciary duty to Jay and llene in two fundamental aspects. First, as a general proposition, absent an agreement to the contrary, partners, joint venturers, and tenants in common look solely to the appreciation of their interest in the endeavor for their financial rewards, and are not entitled to separate compensation for services rendered (see, Levy v Leavitt, 257 NY 461, 467; Myers v Bolton, 157 NY 393, 399). Saul does not dispute the lower court’s determination that no agreement exists entitling him to compensation for the services he rendered, and thus, personally, he cannot be compensated for the services he provided. Moreover, the trial court’s finding, left undisturbed by the Appellate Division, was that the services that are attributed to Victoria are precisely those that Saul was obligated and expected to perform free of individual compensation. Under the facts of this case, Saul acted inconsistently with his obligation to protect the interests of Jay and llene, when he charged the property for services that he personally was obligated to perform without direct compensation.

Second, it is elemental that a fiduciary owes a duty of undivided and undiluted loyalty to those whose interests the fiduciary is to protect (e.g., Meinhard v Salmon, supra, at 463-464; Matter of Rothko, 43 NY2d 305, 319). This is a sensitive and "inflexible” rule of fidelity, barring not only blatant self-dealing, but also requiring avoidance of situations in which a fiduciary’s personal interest possibly conflicts with the interest of those owed a fiduciary duty (Matter of Ryan, 291 NY 376, 407). Included within this rule’s broad scope is every situation in which a fiduciary, who is bound to single-mindedly pursue the interests of those to whom a duty of loyalty is owed, deals with a person "in such close relation [to the fiduciary] * * * that possible advantage to such other person might * * * consciously or unconsciously” influence the fiduciary’s judgment (Albright v Jefferson County Natl. Bank, 292 NY 31, 39). In this case, Saul’s financial relationship with his wife conflicted with his duty to Jay and llene and therefore violated the precept of undiluted trust at the core of his responsibilities as a fiduciary.

For these two reasons, therefore, Saul’s actions charging the property for Victoria’s compensation were inconsistent with his fiduciary obligations, and as such constituted an alteration of his agreement with Jay and llene. Consequently, Saul’s departure from his basic obligations to Jay and llene cannot be countenanced by this court in the absence of both full disclosure and the assent of Jay and llene (see, Meinhard v Salmon, supra, at 467; see also, Phelan v Middle States Oil Corp., 220 F2d 593, 603 [Hand, J.]; 2A Scott & Fratcher, Trusts § 170.25 [4th ed]). The trial court determined that there was neither disclosure nor assent, the Appellate Division did not disturb this conclusion, and, finding support in the record, we are bound also to accept this factual assessment (see, e.g., Alpert v 28 Williams St. Corp., 63 NY2d 557). Thus we conclude that the trial court properly held that Victoria’s compensation could not be charged to the property.

This is not to say, nor would we suggest that a person occupying a position of trust is barred from hiring employees (see, e.g., Partnership Law § 40 [2]). We only reaffirm here the most basic, principle that a court will not countenance the behavior of a fiduciary who, without full disclosure and consent, enters into a financial arrangement placing his spouse’s interests at odds with the interests of those to whom he owes a duty of undivided loyalty.

Saul argues, however, that in any event a conflict of interest on his part is essentially irrelevant, because Jay and llene breached the partnership agreement and thus are not entitled to share in the profits realized from the enterprise. Without passing on the validity of the rule of law Saul seeks to have applied here, neither the trial court nor the Appellate Division found a breach of a partnership agreement on the part of Jay and llene, and, in the record in this court, there is no basis to conclude that such a breach occurred.

We have examined the other issues raised by the parties, and, to the extent they are reviewable by us, we conclude that they were properly determined below.

Accordingly, the order should be modified, with costs to Jay Birnbaum and llene Flaum, by reinstating the judgment of Supreme Court, New York County, and, as so modified, affirmed. The certified question should be answered in the negative.

Judges Simons, Kaye, Alexander and Titone concur; Judges Hancock, Jr., and Bellacosa taking no part.

Order modified, and, as so modified, affirmed, etc.


text:
    The People of the State of New York, Respondent, v Calvin White, Appellant.
    Argued February 8, 1989;
    decided May 9, 1989

      POINTS OF COUNSEL

      Joel Atlas, Philip L. Weinstein and Andrea Hirsch for appellant.
    A potentially suggestive in-court identification procedure constitutes a previous identification, subject to the notice requirement of CPL 710.30. (People v McMullin, 70 NY2d 855; People v O’Doherty, 70 NY2d 479; Gilbert v California, 388 US 263; United States v Wade, 388 US 218; Stovall v Denno, 388 US 293; People v Gissendanner, 48 NY2d 543; People v Magazine, 106 AD2d 473; People v Blake, 35 NY2d 331; People v Cruz, 88 AD2d 621; People v Scatliffe, 117 AD2d 827.) II. The court committed reversible error by permitting the People to adduce appellant’s statements at his second trial, where, prior to the first trial, the People stated that they would not use appellant’s statements, and the People did not re-serve notice of intent to offer the statements until the eve of the second trial. (People v Gruden, 42 NY2d 214; People v O’Doherty, 70 NY2d 479; People v Boughton, 70 NY2d 854; People v Briggs, 38 NY2d 319; People v Spruill, 47 NY2d 869; People v Crimmins, 36 NY2d 230.) III. Appellant was denied the right to file a pro se supplemental brief in support of his appeal to the court below.

      Robert M. Morgenthau, District Attorney (Phyllis A. Monroe, Paul Harnisch and Catherine M. Cook of counsel), for respondent.
    I. The trial court correctly found that the People were not obligated to serve formal notice that the victim had identified defendant during the first trial before utilizing that evidence at the second trial. (Matter of Albano v Kirby, 36 NY2d 526; Ferres v City of New Rochelle, 68 NY2d 446; People v Mallard, 79 Misc 2d 270; People v O’Doherty, 70 NY2d 479;
      People v Gissendanner, 48 NY2d 543; Gilbert v California, 388 US 263; United States v Wade, 388 US 218; Stovall v Denno, 388 US 293; People v Berkowitz, 50 NY2d 333; Matter of Leo T., 87 AD2d 297.) II. Defendant waived his challenge to the admissibility of his statements which, in any event, did not affect the jury’s verdict. (People v Russell, 71 NY2d 1016; People v Charleston, 56 NY2d 886; People v Narayan, 54 NY2d 106; People v Maschi, 49 NY2d 784; People v Creech, 60 NY2d 895; People v Whalen, 59 NY2d 273; People v O’Doherty, 70 NY2d 479; People v Jackson, 70 NY2d 884.) III. Defendant had no absolute right to file a pro se brief adding whatever claims he wished to those filed by his assigned appellate counsel, whose competence is undisputed. (Mgrditchian v Donato, 141 AD2d 513; People v Bachert, 69 NY2d 593; People v Casiano, 67 NY2d 906; Douglas v California, 372 US 353; Evitts v Lucey, 469 US 387; Jenkins v Coombe, 821 F2d 158; Anders v California, 386 US 738; People v Latine, 72 NY2d 823; People v Vasquez, 70 NY2d 1; People v Brown, 136 AD2d 1.)
   OPINION OF THE COURT

Simons, J.

Defendant has been convicted after trial of robbery in the first and second degrees. An earlier prosecution of the charges ended in a mistrial when the jury was unable to agree and this circumstance gives rise to two issues presented on the appeal. First, defendant contends that his conviction must be reversed and a new trial ordered because the People elicited testimony from the victim that he had identified defendant as the robber at the first trial and also because the People had failed to comply with the notice requirements of CPL 710.30. Second, defendant assigns error to the introduction of his postarrest statements after the prosecutor had stated prior to the first trial that she would not use them. In a third, unrelated point, defendant contends that the matter must be remitted to the Appellate Division for reconsideration because it refused to accept his pro se brief. We conclude there was no reversible error and that defendant had no right, constitutional or otherwise, to file a supplemental pro se brief on appeal when represented by counsel who argued nonfrivolous issues on his behalf.

I

On March 5, 1981 defendant and another robbed 63-year-old Edgar Berry in the vestibule of Berry’s Manhattan apartment building. The victim knew defendant because he had often noticed him "hanging around” the building before the robbery. He observed defendant during the robbery under good lighting conditions and subsequently identified him to the police. Defendant was arrested four days later at an apartment in the building. Upon his arrest, he protested his innocence, claiming that Berry, the "old man,” was "crazy” and that "two other guys” robbed Berry while defendant and his brother were present.

Defendant and his brother, Miles, were indicted for robbery in the first and second degrees. After the People served a timely notice pursuant to CPL 710.30 of their intention to use his postarrest statements at trial, defendant moved to suppress them, contending that the statements were obtained in violation of Miranda v Arizona (384 US 436). The People consented to a Huntley hearing, but opposed defendant’s suppression motion on the merits. The case was then delayed for approximately nine months to resolve various defense motions. At the conclusion of a hearing on defendant’s speedy trial motion, the Justice presiding sent the case to a trial part for a Huntley hearing and for trial. At that point, the assistant prosecutor stated that it would be only for trial because the People would not use defendant’s statements. The trial started two days later and ended when the jury failed to reach a verdict.

In September 1982, the People announced ready for the second trial. Due to delays not attributable to them, however, the case was repeatedly adjourned. In July 1984, the People announced their intention to use defendant’s statements at the second trial. Defense counsel objected and moved to preclude the evidence. Following extensive colloquy the motion for preclusion was denied and the court held a Huntley hearing to resolve defendant’s motion to suppress. It found that defendant’s statements were voluntary and spontaneous and could be introduced on the People’s case-in-chief. The second trial commenced on October 10. Berry testified that defendant accosted him in the vestibule displaying a handgun, ordered him to freeze and that defendant and his brother then robbed him of two diamond rings. He also testified, over objection, that he had identified defendant as the robber at defendant’s first trial. The arresting police officer, Robert Shack, testified that after Berry told him that defendant robbed him, he arrested defendant and informed him of his Miranda rights. Shack said defendant then admitted being at the scene during a robbery committed by "two other guys”, Butch and Buzzy, but denied participating in it. Defendant rested without presenting any evidence and the jury convicted him of robbery in the first and second degrees. The Appellate Division affirmed, without opinion.

II

Defendant contends first that it was reversible error for the trial court to permit Berry to testify that he identified defendant as the robber at defendant’s first trial. As a substantive matter, prior identification evidence is admissible on the People’s case-in-chief, notwithstanding its bolstering effect on the witness’s in-court testimony (CPL 60.30). Defendant claims, however, that procedural error occurred because the People did not provide him with notice before the second trial that they were going to introduce Berry’s prior identification testimony.

CPL 710.30 requires that within 15 days of a defendant’s arraignment the prosecutor must serve notice of the intention to offer at trial any "testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such”. An exception to the 15-day requirement is authorized provided the People establish good cause for the late service of the notice. The issue presented is whether the requirements of CPL 710.30 apply to judicially supervised identifications which occur when defendant is represented by counsel. Relying on the literal language of the statute and a line of cases in the Second Department, defendant claims that it does (see, People v Mole, 147 AD2d 714; People v Magazine, 106 AD2d 473; People v James, 100 AD2d 552; People v Cruz, 88 AD2d 621; but see, People v Jones, 99 AD2d 471). We disagree.

The controlling principle in interpreting statutes is the legislative intent (Ferres v City of New Rochelle, 68 NY2d 446, 451; Matter of Albano v Kirby, 36 NY2d 526, 529-530; Matter of Petterson v Daystrom Corp., 17 NY2d 32, 38). Obviously, evidence of it is first sought in the words the Legislature has used (Sega v State of New York, 60 NY2d 183, 191; Riegert Apts. Corp. v Planning Bd., 57 NY2d 206, 209; People v Graham, 55 NY2d 144, 151). But we may not stop there; the spirit and purpose of the act and the objects to be accomplished must also be considered (New York State Bankers Assn. v Albright, 38 NY2d 430, 436; Ferres v City of New Rochelle, supra, at 446; Uniformed Firefighters Assn. v Beckman, 52 NY2d 463, 471). Although a literal interpretation of the language of CPL 710.30 might suggest that an in-court identification at a Wade hearing or a previous trial constitutes a "previous identification”, and thus should be covered by its provisions, there is no suggestion in the legislative history or in the background surrounding the statute that it was intended to cover previous in-court identifications.

Historically, CPL 710.30 "was * * * .a legislative response to the problem of suggestive and misleading pretrial identification procedures treated by the Supreme Court in Gilbert v California (388 US 263), United States v Wade (388 US 218) and Stovall v Denno (388 US 293)”. (People v Gissendanner, 48 NY2d 543, 552.) In each of those cases, the court was concerned with trial identifications predicated on earlier confrontations between an uncounselled defendant and an eyewitness involving lineups, showups or photographs for the purpose of establishing the identity of the criminal actor. CPL 710.30 sets forth a procedure to provide notice to a defendant who might otherwise be unaware that the People are in possession of such evidence and thus allows the defendant to test the reliability of the identification before trial.

However, at a prior in-court identification, a Wade hearing, preliminary felony hearing or previous trial, for example, defendant knows of the identification and the notice purpose of the statute is not implicated. More importantly, defense counsel is present and has the ability to challenge the suggestive nature of the identification at the time it is taking place. Thus, it is of no moment that courts have recognized that in-court identifications may be prompted by suggestive procedures (see, People v James, 100 AD2d 552, 553, supra; People v Banks, 73 AD2d 907, affd 53 NY2d 819; People v Huggler, 50 AD2d 471, 474; Boyd v Henderson, 555 F2d 56, 59-60, cert denied 434 US 927). The critical point is that there is no need for a separate hearing to enable defense counsel to make an argument that more appropriately should be made at the time the problem arises (see, e.g., People v Powell, 67 NY2d 661, 662). Defendant was represented by counsel at his first trial and counsel did not object to Berry’s identification of defendant or suggest that it should be precluded as unnecessarily suggestive. Indeed, he does not now claim that the identification was unfair in any respect.

Finally, defendant’s interpretation of the notice provision would undermine the goal of efficiency found in that statute (see, People v O’Doherty, 70 NY2d 479, 487-488). Under defendant’s interpretation of the statute, a witness’s identification testimony during a prior trial or prior Wade hearing gives rise to an obligation to provide notice and a corresponding right to a suppression hearing. Under the recent amendment to CPL 710.60 (3) (b), however, the defense is relieved of the burden of alleging a factual basis when making a motion to suppress a prior identification (L 1986, ch 776). Thus, every identification at a Wade hearing, for example, could give rise to an additional obligation to send a CPL 710.30 notice resulting in sequential hearings ad infinitum testing the identification rendered at each prior proceeding. Accordingly, the identification testimony was properly received at defendant’s second trial.

Ill

Defendant also contends that the court erred in permitting the People to introduce defendant’s postarrest statements at his second trial. His argument proceeds in two stages. First, he contends that the assistant prosecutor’s statement prior to the first trial that "the People won’t introduce the statement” constituted a stipulation under CPL 710.60 (2) (b) and, therefore, the evidence should have been suppressed. Alternatively, defendant argues that assuming the prosecutor’s statement did not constitute a stipulation, it constituted a withdrawal of the CPL 710.30 notice and notice was not re-served in a timely fashion before his second trial.

We agree with defendant’s contention that it was error to admit the statements but find the error to be harmless beyond a reasonable doubt.

The statute provides that the court must summarily grant a motion to suppress if "[t]he people stipulate that the evidence * * * will not be offered in evidence in any criminal action or proceeding against defendant” (CPL 710.60 [2] [b] [emphasis added]). The Criminal Procedure Law does not define the term "stipulation” and no authority has been cited interpreting that term as used in the statute. We accept the definition, recently stated by one court, that a stipulation is " '[a]n agreement, admission, or concession made in a judicial proceeding by the parties thereto or their attorneys, in respect of some matter incident to the proceeding, for the purpose, ordinarily, of avoiding delay, trouble and expense’ ” (see, People v Hills, 140 AD2d 71, 77, quoting Ballantine’s Law Dictionary 1217 [3d ed 1969]). Applying this definition to the facts here, we conclude that the prosecutor’s statement, verified by the record, constituted a stipulation within the meaning of CPL 710.60 (2) (b) obviating the need for defendant to pursue a suppression hearing. Defendant was not required to make a formal motion to suppress the evidence; his acceptance of the stipulation and the statutory benefit may be inferred as a matter of law, preventing the People from subsequently changing course and using defendant’s statements after the passage of time may have made evidence unavailable or witness’s memories less reliable.

Despite our conclusion that the trial court erred in refusing to preclude defendant’s statements, we hold that the error was harmless beyond a reasonable doubt. First, the statements were basically exculpatory. Defendant denied involvement in the robbery and claimed "two other guys” were responsible. Although he admitted in the statements being present during the robbery, the victim’s testimony on this point was strong and uncontradicted (see, People v Jackson, 70 NY2d 884, 885). He knew defendant, testifying that in the weeks preceding the robbery he had seen defendant "all the time” in the apartment building where he and defendant lived, and he had ample time before, during and after the robbery to view the defendant at close range. Moreover, defendant did not deny that he was at the scene during the robbery. Indeed, at his first trial, defendant’s own witness, "Buzzy”, confirmed that he and defendant had been in the vestibule.

In arguing against a harmless error analysis, defendant claims the admission of the statements seriously prejudiced his case because they pictured him as an angry man who referred to Berry as the "old man” and called him "crazy” and "a lunatic”. The statements do not necessarily reflect a consciousness of guilt, however; they also may be viewed as the reaction of a person upset about being wrongly accused of a crime. It is clear that the jury, which acquitted defendant’s brother, credited Berry’s testimony, not because it was confirmed by defendant’s admissions, but because there was no reasonable possibility that Berry identified the wrong person (see, People v Brown, 140 AD2d 266, 270, lv denied 72 NY2d 955).

Accordingly, we find no trial error warranting reversal of the conviction.

IV

Finally, defendant claims that the order of affirmance must be reversed and the case remanded to the Appellate Division because that court refused to grant his application for permission to file a supplemental pro se brief. By attempting to file a supplemental brief, defendant sought to act as his own cocounsel or, otherwise stated, assert the right to hybrid representation. We have previously held that a defendant has no State or Federal constitutional right to such representation at the pretrial and trial levels (People v Garcia, 69 NY2d 903, 904; People v Ferguson, 67 NY2d 383, 390; People v Mirenda, 57 NY2d 261, 265-267; People v Richardson, 4 NY2d 224) but defendant contends that we recognized such a right on appeal in People v Vasquez (70 NY2d 1).

In Vasquez, we held that a defendant was denied effective assistance of counsel when his attorney wrote a brief disparaging several arguments his client sought to raise, thereby effectively precluding the client from successfully presenting these arguments pro se. We stated that counsel who adopts and submits nonfrivolous appellate issues on behalf of the defendant but refuses to raise other issues requested, should explain to the client why the other issues should not be submitted and advise the client that, if he or she wishes, permission may be sought to file a supplemental brief with the appellate court. Our discussion in Vasquez addressed the ethical obligation counsel owes a client; we did not create any right on behalf of indigent defendants to act as cocounsel on appeal when represented by counsel presenting nonfrivolous issues. Thus, defendant’s claim is a novel one in this court, not controlled by Vasquez.

Defendant contends that the principal danger of multiple representation is jury confusion (see, People v Richardson, 4 NY2d 224, supra) and that this danger is not present at the appellate level where trained Judges rather than lay jurors are the decision makers. This argument, however, overlooks our decisions in People v Garcia (69 NY2d 903, supra) and People v Ferguson (67 NY2d 383, supra). In neither case was there a jury present nor the need to avoid confusion. Nevertheless, we held that defendant had no right to act as cocounsel with the assigned attorney.

Defendant’s alternative attack is more substantial. He notes first that an indigent defendant does not have the right to assigned counsel of choice and must be content with the counsel appointed by the State absent an affirmative showing of good cause (see, People v Sawyer, 57 NY2d 12, 18-19; People v Medina, 44 NY2d 199, 208; People v Brabson, 9 NY2d 173, 180-181). Second, he observes that it is the prerogative of counsel, not the client, to decide what issues should be raised on appeal. A defendant having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case (i.e., whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal; Jones v Barnes, 463 US 745, 751; People v Ferguson, 67 NY2d 383, 390, supra) and an attorney is not necessarily guilty of ineffective assistance for failing to argue issues the client requests, even if hindsight shows that one of these issues would have been meritorious on appeal. Indeed, it is generally accepted that counsel for defendant should "winnow[ ] out weaker arguments on appeal and focus[ ] on one central issue if possible, or at most on a few key issues” (Jones v Barnes, supra, at 751-752).

Defendant claims, however, that those who can retain attorneys of their choice are able to convince counsel to raise all nonfrivolous arguments that they wish presented. From all this, he reaches the conclusion that unless the Appellate Division accepts pro se supplemental briefs filed by indigent defendants, the result will be that counsel’s decision not to raise all nonfrivolous issues will bar defendants from obtaining a complete review of the merits of their appeals, denying them both effective assistance of counsel and equal protection of the law.

The false premise in defendant’s argument is that retained lawyers necessarily submit every nonfrivolous issue requested by the client, or that the client has a right to have such issue submitted. Nothing required by the State or Federal Constitution requires the attorney to do so (cf., ABA Standards for Criminal Justice, Criminal Appeals, standard 21-3.2, comment, at 21-42 [2d ed 1980]). Indeed, good appellate practice might require a retained attorney to take a different approach from that urged by the client when experience has proven that the attorney’s approach is in the client’s best interest. Thus, we see no reason why the rule that defendant has no right to hybrid representation at the pretrial and trial stages should not carry over to the appellate stage.

Finally, defendant argues that even if there is no State or Federal constitutional right to file a supplemental pro se brief, such a right should be granted as a matter of public policy. Secondly, he argues, acceptance of pro se submissions fosters the belief that at least defendant has been heard. Although it appears that some of the departments of the Appellate Division accept pro se briefs as a matter of course, as do we, apparently some do not. The routine denial of applications to file pro se briefs could support a claim that a court is acting arbitrarily and the failure to accept such a brief in a given case could constitute an abuse of discretion. Accordingly, we believe the better practice would be for appellate courts to accept timely supplemental pro se briefs. The decision, however, lies within the sound discretion of the court (cf., People v Mirenda, 57 NY2d 261, 265, supra). The record before us discloses no facts or circumstances suggesting that denial of defendant’s application constituted an abuse of discretion as a matter of law.

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

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

Order affirmed.

      . Indeed our past decisions have avoided an interpretation of CPL 710.30 that places too much emphasis on the statute’s literal language when doing so would produce results plainly at odds with the policy of the legislation as a whole (see, People v Tas, 51 NY2d 915, 916 [since participants in the incident were known to each other, there was no identification within the meaning of CPL 710.30 and no prior notice need be given by the People]; see also, People v Collins, 60 NY2d 214, 218-219; People v Berkowitz, 50 NY2d 333, 338, n 1; People v Gissendanner, 48 NY2d 543, 552).

        . We did not address in Vasquez, nor do we today, the question of whether the appellate court, handling defendant’s single appeal as of right, must accept defendant’s supplemental submission when defense counsel simply files an Anders brief (see, Anders v California, 386 US 738) asking to withdraw as counsel and stating that there are no nonfrivolous issues to be raised on appeal. We note, however, that there is no hybrid representation problem in a true Anders situation because, upon filing an Anders brief, refusing to argue any issues for defendant, counsel ceases to be an advocate for defendant’s cause, and operates only as an officer of the court (see, id., at 744).

      . The other jurisdictions that have addressed the issue are in accord (see, e.g., Whitfield v State, 517 So 2d 23, review denied 525 So 2d 881 [Fla App]; Callahan v State, 30 Md App 628, 354 A2d 191; Commonwealth v Kibler, 294 Pa Super 30, 439 A2d 734; Mendizabal v State, 732 SW2d 417 [Tex App]). Moreover, denying criminal defendants the right to file supplemental pro se briefs does not deprive them of a right to present a claim of ineffective assistance of trial counsel in a CPL article 440 proceeding (People v Rivera, 71 NY2d 705, 709) or showing, in a writ of error coram nobis brought in the Appellate Division (see, People v Bachert, 69 NY2d 593), ineffective assistance of appellate counsel.


text:
    The People of the State of New York, Appellant, v Raymond A. Campbell, Respondent. The People of the State of New York, Appellant, v Michelle Frattalone, Respondent. The People of the State of New York, Appellant, v Dennis L. McDonald, Respondent. The People of the State of New York, Appellant, v Diane D. Raynor, Also Known as Diane D. Loverme, Respondent.
    Decided May 11, 1989

      APPEARANCES OF COUNSEL

      John T. Ward, District Attorney (J. Richard Goodell of counsel), for appellant.

      Richard V Slater, Public Defender (Donald V. Nihoul of counsel), for Raymond A. Campbell and Diane D. Raynor, respondents.

      James P. Subjack for Michelle Frattalone and Dennis L. McDonald, respondents.
   OPINION OF THE COURT

Simons, J.

The People appeal from orders of County Court which reversed defendants’ convictions rendered by various Justice Courts of Chautauqua County for driving while under the influence of alcohol (Vehicle and Traffic Law § 1192 [2]) and dismissed the informations. The common issue presented in each case is whether the results of blood alcohol tests performed by hospital technologists using the DuPont Automatic Clinical Analyzer are admissible in evidence per se or are subject to the foundation requirements outlined in People v Freeland (68 NY2d 699) and People v Mertz (68 NY2d 136).

In each case defendant was charged with violating section 1192 (2) of the Vehicle and Traffic Law and blood samples were taken. The samples were analyzed at the Jamestown General Hospital, an institution holding a permit granted by the New York State Department of Health to perform blood tests (see, Public Health Law § 574 [1]; § 575 [2]). The hospital provides blood alcohol tests for the local Sheriff pursuant to a contract and is paid solely on the basis of the time spent performing the tests and testifying, regardless of whether a conviction results.

The tests were performed by hospital technologists certified to perform the laboratory analyses of blood and urine alcohol by the Department of Health. The results were obtained by using a DuPont Automatic Clinical Analyzer (DuPont ACA), a spectrophotometer that employs a reagent pack solution purchased by the hospital from a private company to test the blood alcohol content of each sample. The technologists were trained to operate the DuPont ACA but were not experts in the internal workings of the machine and do not possess degrees in chemistry (see, 10 NYCRR 59.3 [b] [1], [2], [3], [4]).

The blood alcohol test results of each defendant indicated levels exceeding .10 and the People submitted them in evidence accompanied by testimony or business records showing that the DuPont ACA was working properly on the day the test was performed. The People also offered evidence, through the testimony of the technologist performing the test, that the proper chemical solution for which the machine was calibrated had been used when conducting the test and that the test was properly administered.

In People v Mertz (68 NY2d 136, 148, supra), we held that before breathalyzer results could be admitted in evidence the People must establish that the machine is accurate, that it was working properly when the test was performed and that the test was properly administered. We noted that the accuracy of breathalyzers for measuring blood alcohol content was generally recognized and that tests were admissible if the People submitted evidence satisfying the latter two conditions (see, People v Mertz, supra; see also, People v Freeland, 68 NY2d 699, 700, supra; People v Gower, 42 NY2d 117, 121). In the cases before us, we are concerned with the first requirement, proof that the DuPont ACA is accurate for the test performed.

The People contend that the blood alcohol test results should be admitted in evidence per se, without foundation, because they were performed in a hospital by regular personnel using standard methods and equipment and that the permits issued to the hospital laboratory and the individual technologists ensure their reliability. As an alternative they urge that the laboratory technicians, due to their experience and training on the DuPont ACA, are experts in blood alcohol analysis and may state their opinion on the blood alcohol content of a sample based on out-of-court evidence (accord, People v Porter, 46 AD2d 307).

State regulations require that a blood alcohol test reading be accurate within .01 grams per 100 milliliters (Chemical Analysis of Blood, Urine, Breath or Saliva for Alcoholic Content, 10 NYCRR 59.2 [b] [2]). In the cases before us no scientific evidence was presented to establish that the DuPont ACA is reliable for determining blood alcohol content generally or with sufficient accuracy to meet that standard. Indeed, in People v Campbell a technologist testified that the acceptable range set by the manufacturers for the DuPont ACA was outside this .01 standard. Moreover, the State Health Department’s permit does not satisfy the accuracy requirement. Although the machine may be accurate to show alcohol toxicity or possible drug interactions for general purposes, there is no proof that it is "capable of accurately discerning the critical distinction between a legally permissible blood alcohol content and that which is statutorily proscribed” (People v Freeland, supra, at 701).

The People cite cases for the proposition that hospital tests are admissible in evidence per se under the business records exception to the hearsay rule if performed by regular personnel. Those. cases, however, involve civil matters and well recognized procedures or equipment (see, Stein v Lebowitz-Pine View Hotel, 111 AD2d 572, 573 [use of autopsy report in action for wrongful death]; Mayole v Crystal & Son, 266 App Div 1008 [EEG tests]). In criminal matters the scientific reliability and accuracy of a machine measuring blood alcohol content for forensic purposes must be established before such test results may be admitted in evidence.

Finally, contrary to the People’s claim, the technologist cannot be equated with a chemist or toxicologist who can render an opinion of blood alcohol content based on firsthand knowledge and experience (see, People v Leis, 13 AD2d 22). The technologist, even though granted a permit by the State, does not qualify as an expert on the internal workings of the machine and his or her testimony does not satisfy the distinct foundational requirement that the machine test blood alcohol content accurately within required specifications (see, People v Freeland, 68 NY2d 699, 701, supra; People v Mertz, 68 NY2d 136, 148, supra).

In People v McDonald defendant pleaded guilty to the charge of driving while intoxicated (Vehicle and Traffic Law § 1192 [2]). Pursuant to an agreement entered into with the prosecutor, and sanctioned by the court, the People recited the evidence they would present at trial and defendant then attempted to preserve his right to raise on appeal whether the People had established a proper foundation on the accuracy of the DuPont ACA. In People v Thomas (53 NY2d 338, 342-345) we noted that the right to appellate review of certain issues raised before the plea is forfeited by operation of law as a consequence of a guilty plea. Where a defendant has by his plea admitted commission of the crime with which he is charged, the plea more than a confession, signals defendant’s intention not to litigate the question of his guilt and normally renders irrelevant any consideration of whether his conviction should be reversed for evidentiary error (see, People v Taylor, 65 NY2d 1, 5; People v Evans, 58 NY2d 14, 21, n 1; People v Di Raffaele, 55 NY2d 234, 240). Therefore, the order of the County. Court reversing the trial court’s conviction on the guilty plea was improper and defendant’s conviction of driving under the influence of alcohol should be reinstated (see, People v O’Brien, 56 NY2d 1009,1010, affg 84 AD2d 567).

Accordingly, in People v Campbell, People v Frattalone and People v Raynor, the orders should be affirmed. In People v McDonald the order should be reversed and the judgment of the Town Court convicting defendant of driving while intoxicated (Vehicle and Traffic Law § 1192 [2]) reinstated.

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

In People v Campbell, People v Frattalone and People v Raynor: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed.

In People v McDonald: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and judgment of Busti Town Court reinstated.