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

text:
    In the Matter of the Arbitration between Allstate Insurance Company, Petitioner, and Kathleen Stolarz et al., Respondents; New Jersey Manufacturers Insurance Company, Appellant.
    Argued February 11, 1993;
    decided May 4, 1993

      POINTS OF COUNSEL

      Downing & Mehrtens, P. C., New York City (Thomas E. Mehrtens, Alison D. Metzler and John M. Downing of counsel), for appellant.
    The uninsured/underinsured motorist coverage in the amount of $35,000 issued by the New Jersey Manufacturers Insurance Company to a New Jersey company should be reduced to $15,000 in accordance with the terms of the insurance contract issued in New Jersey and as mandated by the New Jersey Legislature thereby giving full faith and credit to a New Jersey statute in accordance with article IV, § 1 of the US Constitution. (Chicago & Alton R. R. v Wiggins Ferry Co., 119 US 615; New Amsterdam Cas. Co. v Stecker, 3 NY2d 1; Government Empls. Ins. Co. v Sheerin, 65 AD2d 10; Matter of United Community Ins. Co. v Mucatel, 127 Misc 2d 1045; Passaro v Metropolitan Prop. & Liab. Ins. Co., 128 Misc 2d 21, 124 AD2d 647; Matter of Valente v Prudential Prop. & Cas. Ins. Co., 77 NY2d 894; Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951; Garry v Worldwide Underwriters Ins. Co., 120 Misc 2d 91, 101 AD2d 717; Fox v Atlantic Mut. Ins. Co., 132 AD2d 17.)

      Michael R. Scolnick, P. C, Pomona (Michael R. Scolnick and Valerie Crown-Goldstein of counsel), for respondents.
    I. The Full Faith and Credit Clause of the US Constitution: (a) does not eradicate contract choice of law issues; (b) does not absolutely require a State court to subordinate its own contract laws to the conflicting laws of another State, where the contract happens to be executed in that other State; and (c) does not require a State court to apply the contract laws of another State, which are deemed to be repugnant to its own public policy. (Gaillard v Field, 381 F2d 25, 389 US 1044; Sun Oil Co. v Wortman, 486 US 717; De Landa v Lucom, 208 Misc 394, 2 Misc 2d 170.) II. A grouping of contacts approach must be used in an insurance contract choice of law issue, rather than applying the law of the place of the contract execution, (a) Under the grouping of contacts approach, both the courts below correctly made a factual finding that New York has a greater interest in the outcome of this case than does New Jersey, (b) Such a factual finding is not an issue properly appealable to the Court of Appeals. (New Amsterdam Cas. Co. v Stecker, 3 NY2d 1; Government Empls. Ins. Co. v Sheerin, 65 AD2d 10; Babcock v Jackson, 12 NY2d 473; Regional Import & Export Trucking Co. v North Riv. Ins. Co., 149 AD2d 361; Winter v Anderson, 245 App Div 907.) III. According to New York law the New Jersey Manufacturers Insurance Company reduction-in-coverage clause, which effectively precludes an underinsured coverage insurer from ever having to pay the face amount of its underinsured coverage limits, is misleading and ambiguous — therefore, repugnant to New York public policy. (Matter of United Community Ins. Co. v Mucatel, 127 Misc 2d 1045, 119 AD2d 1017, 69 NY2d 777; Drapak v Aetna Cas. & Sur. Co., 137 Misc 2d 156; Matter of Valente v Prudential Prop. & Cas. Ins. Co., 77 NY2d 894; Matter of Federal Ins.

      Co. v Reingold, 181 AD2d 769; Maurizzio v Lumbermens Mut. Cos. Co., 73 NY2d 951.)
   OPINION OF THE COURT

Chief Judge Kaye.

In this automobile insurance dispute, both Supreme Court and the Appellate Division concluded that there was a conflict between New York and New Jersey law, and that New York law should control. We conclude there is no such conflict, and in any event New Jersey law applies. Accordingly, we reverse.

I.

On February 18, 1989, Kathleen Stolarz and her husband were injured in a two-car accident on Route 6 in Woodbury, New York. The Stolarz vehicle was a company car leased by her employer, Blue Cross/Blue Shield of New Jersey, and registered in New Jersey. New Jersey Manufacturers Insurance Company (NJM) insured the vehicle under a policy issued to Blue Cross and written to conform to New Jersey law. Stolarz regularly garaged the vehicle at her home in Monroe, New York, a few miles north of the New Jersey border.

The carrier insuring the other vehicle paid the Stolarzes $20,000, the liability limits of its insured’s policy. When Allstate Insurance Company, the insurer of the Stolarzes’ personal cars, disputed the amount payable under that policy’s underinsurance coverage, the Stolarzes served a demand for arbitration and Allstate, in turn, brought a special proceeding in Supreme Court to stay arbitration. NJM, which also disputed the amount payable under its policy’s uninsured/underinsured coverage, joined in the proceeding and sought declaratory relief fixing the rights and obligations of the parties. Allstate, having settled with the Stolarzes, is not before us on this appeal.

The NJM policy contains a single limit of uninsurance/ underinsurance in the amount of $35,000. In accordance with a New Jersey statute, the policy also provided: "Any amount payable under this [Uninsured and Underinsured Motorists] insurance shall be reduced by all sums paid by or for anyone who is legally responsible.” NJM argued that, in accordance with the policy terms and New Jersey law, it was entitled to offset $20,000 (the amount collected by the Stolarzes from the other driver’s insurance carrier) from the $35,000 policy limit. The Stolarzes, however, claimed that under New York case law (see, Matter of United Community Ins. Co. v Mucatel, 127 Misc 2d 1045, affd without opn 119 AD2d 1017, affd for reasons stated at Special Term 69 NY2d 777), offset clauses in underinsurance coverage are void, and they demanded $35,000 without reduction.

Relying on Mucatel, Supreme Court determined that there was a conflict between New York and New Jersey law, and under a choice of law analysis concluded that New York law should govern. Accordingly, the court declared that NJM could not take an offset against the policy’s stated limit. On NJM’s appeal, the Appellate Division agreed with Supreme Court’s reasoning and affirmed. We reverse.

II.

The first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved. Scrutiny of the alleged conflicting laws in this case reveals that there is no conflict here.

In Mucatel, Supreme Court held that policies containing underinsurance offset provisions are "misleading and ambiguous” because the stated limit of the policy would never be paid in full, the concept of underinsurance presuming that there is at least some insurance (127 Misc 2d, at 1046). This Court affirmed on Supreme Court’s reasoning.

The policy in this case contains a single, combined $35,000 limit of uninsurance/underinsurance. Thus the insured, in an accident with a negligent driver, is guaranteed a recovery of $35,000, assuming injuries equal to or greater than that amount. If the other driver is uninsured, the full $35,000 is paid by NJM. To the extent the other driver has insurance, NJM pays the difference up to the "limit” of $35,000.

Mucatel involved strictly an underinsurance clause, whereas here the policy is written with a single limit of un/ underinsurance. The distinction is critical. Mucatel’s rationale —that the policy’s stated limit would never be paid in full— does not apply here because there are circumstances where the stated limit would be fully paid. Accordingly, the provision at issue does not present a similar deception to that identified in Mucatel.

This Court has not previously considered a combined un/ underinsurance limit, but any question as to the validity of such provisions should have been laid to rest when the New York Superintendent of Insurance recently promulgated regulations approving single limits and specifically requiring reduction in coverage for amounts recovered from underinsured drivers (11 NYCRR 60-2.1 [c]). Indeed, the regulations were adopted to "eliminate ambiguity [and] minimize confusion” (11 NYCRR 60-2.0 [c]).

The dissent’s contention that the regulations should not be given "retroactive effect” and that the Stolarzes’ "contractual” rights "vested” at the time of the accident misses the point. We look to the regulations not for their binding effect but for guidance in deciding a legal question that must be answered today: whether offset provisions relating to combined un/underinsurance limits are misleading. The Superintendent of Insurance has determined that such clauses are not misleading, and this is persuasive authority (see, by analogy, Matter of Kransdorf v Board of Educ., 81 NY2d 871, 873).

Similarly, the dissent’s argument that the existence of a single limit is immaterial because the offset applies only to the underinsurance component — and that offsets against underinsurance are invariably void under Mucatel — misapprehends the holding of that case. There is nothing inherently objectionable about offsets against the limits of an insurance policy (see, e.g., Matter of Valente v Prudential Prop. & Cas. Ins. Co., 77 NY2d 894, 895-896); indeed they are common. In Mucatel we concluded that the policy was misleading because the insurer would not "ever pay the amount indicated on the policy declaration” (127 Misc 2d, at 1046), and where that is the case Mucatel of course controls. But that situation is not present here. The dissent’s attempt to extend Mucatel and make it applicable by artificially splitting the limit of a single clause into separate components is baseless.

Thus, there is no conflict between New York and New Jersey law, and under the law of either jurisdiction, the policy should be construed as written.

III.

Because the dissent and both lower courts conclude that there is a conflict, we next address the choice of law issue to demonstrate that, even in that event, New Jersey law governs.

The historical approaches to choice of law in both tort and contract were rigid and mechanical. In tort cases, courts invariably applied lex loci delicti — the law of the place of the tort — to all substantive issues (see, e.g., Poplar v Bourjois, Inc., 298 NY 62, 66; Restatement of Conflict of Laws §§ 377-390), while contract cases generally invoked the law of the place where the contract was made or was to be performed (see, e.g., Swift & Co. v Bankers Trust Co., 280 NY 135, 141; Union Natl. Bank v Chapman, 169 NY 538, 543). These inflexible rules proved unsatisfactory because the location of the controlling event was sometimes fortuitous, did not reflect the parties’ intentions, or was insignificant as against the location of other events. Moreover, the traditional approaches failed to accord any significance to the policies underlying the conflicting laws (see, Cooney v Osgood Mach., 81 NY2d 66, 72).

Auten v Auten (308 NY 155), a contract case, and Babcock v Jackson (12 NY2d 473), a tort action, heralded the modern, more flexible approaches to choice of law. As our jurisprudence has evolved, the preferred analytical tool in tort cases is to apply "interest analysis,” where the policies underlying the competing laws are considered (see, Cooney, 81 NY2d, at 72; Schultz v Boy Scouts, 65 NY2d 189, 196-197). Indeed, in a typical tort case — a car accident, for example — strong governmental interests may underlie the choice of law issue. The place where the accident occurred, for example, has an overriding interest in regulating conduct within its borders (Babcock, 12 NY2d, at 483). Similarly, rules distributing the loss after the accident happens may implicate significant governmental interests (see, e.g., Cooney [contribution]; Schultz [charitable immunity]).

By contrast, contract cases often involve only the private economic interests of the parties, and analysis of the public policy underlying the conflicting contract laws may be inappropriate to resolution of the dispute. It may even be difficult to identify the competing "policies” at stake, because the laws may differ only slightly, and evolve through the incremental process of common-law adjudication as a response to the facts presented.

The "center of gravity” or "grouping of contacts” choice of law theory applied in contract cases (see, e.g., Auten v Auten, 308 NY, at 160-161) enables the court to identify which law to apply without entering into the difficult, and sometimes inappropriate, policy thicket. Under this approach, the spectrum of significant contacts — rather than a single possibly fortuitous event — may be considered (see, Restatement [Second] of Conflict of Laws § 188 [2]). Critical to a sound analysis, however, is selecting the contacts that obtain significance in the particular contract dispute. As we have noted, the traditional choice of law factors should be given "heavy weight” in a grouping of contacts analysis (Haag v Barnes, 9 NY2d 554, 560; see also, New Amsterdam Cas. Co. v Stecker, 3 NY2d 1, 5 [emphasizing place of contracting in automobile insurance dispute]; Cooney v Osgood Mach., 81 NY2d, at 74 [using place of the tort, "the traditional choice of law crucible,” to resolve impasse when State interests are irreconcilable]).

There are of course instances where the policies underlying conflicting laws in a contract dispute are readily identifiable and reflect strong governmental interests, and therefore should be considered. For example, in Zeevi & Sons v Grindlays Bank (37 NY2d 220, 227), involving an international letter of credit, we held that New York law should control so that our State would maintain its position as a financial capital of the world. Similarly, in a finder’s fee dispute, we applied the New York Statute of Frauds instead of New Jersey law which did not require a written agreement. We took into account the policy of the statute as expressed in its legislative history and observed that application of the statute would contribute to New York’s economic development, a strong State interest (see, Intercontinental Planning v Daystrom, Inc., 24 NY2d 372, 382-385).

Automobile insurance, highly regulated as it is, may implicate both the private economic interests of the parties and governmental interests in the enforcement of its regulatory scheme. Thus, we may properly consider State interests to determine whether to apply New York law and void the contract’s express terms or apply New Jersey law and enforce the contract as written.

The State interest underlying Mucatel is that consumers purchasing insurance in this State should not be deceived by misleading policy limits. That interest, however, is irrelevant where, as here, the policy is sold in New Jersey by a New Jersey insurance company to a New Jersey insured, and the clause was written to conform to a New Jersey statute. Indeed, while Stolarz (by virtue of her use of the car) is an additional insured under the policy, she is not a party to the contract (see, Bums v Aetna Cas. & Sur. Co., 741 SW2d 318, 322 [Tenn]), nor did she pay the premiums — her New Jersey employer did. Thus, New York has no governmental interest in applying its law to this dispute and New Jersey law must be applied (compare, Matter of Istim, Inc. v Chemical Bank, 78 NY2d 342, 348 ["Because Illinois’ policy of requiring notice to judgment debtors is irrelevant, the only relevant policy interest is that of New York in having its attorneys fairly compensated”]).

The same result obtains under a "grouping of contacts” analysis that does not consider State interests. When the significant contacts are considered in light of the reality that this is a contract case, not a tort, it is plain that this dispute overwhelmingly centers on New Jersey. The Restatement, for example, enumerates five generally significant contacts in a contract case: the place of contracting, negotiation and performance; the location of the subject matter of the contract; and the domicile of the contracting parties (see, Restatement [Second] of Conflict of Laws § 188 [2]).

Indisputably, New Jersey is the place where the contract was negotiated and made. The parties to the contract are both New Jersey entities. The subject matter of the contract, a vehicle, does not have a fixed location but is registered in New Jersey. Thus, four of the five factors identified in the Restatement plainly point to New Jersey law. (The fifth factor, place of performance, is immaterial here because there is no issue as to performance.)

The dissent’s reliance on New York as the situs of the accident and the place where Stolarz (a nonparty to the contract) and the other driver lived confuses the contacts that might be significant in a tort case with those that are material in a contract dispute. In that vein, it is instructive to examine how this and other courts have treated choice of law in automobile insurance cases involving multistate contacts.

In New Amsterdam Cas. Co. v Stecker (3 NY2d 1), a policy was issued in New York to a New York resident. An accident occurred in Connecticut and the insured argued that Connecticut law should apply. The Court flatly rejected the insured’s argument that the accident situs, as the supposed "place of performance,” should control. Citing Auten, the Court held:

"The error which defendants commit is in assuming that the question here involves performance of a contract. * * * Is the defendant Molly Stecker insured? Has Amsterdam agreed to indemnify her for the loss here anticipated? What was the contract the parties made? What were the rights and obligations which flowed from the document they drew? These are questions, the answers to which are governed solely by the lex loci contractus— New York State” (3 NY2d, at 5).

Similarly, on facts identical to the present case, the Supreme Court of Rhode Island concluded that the situs of the accident and plaintiff’s residence were irrelevant (Baker v Hanover Ins. Co., 568 A2d 1023 [RI]). There, in dispute was an uninsured motorist clause contained in a policy issued to a Massachusetts corporation. The car, as here, was leased by the corporation and registered in the corporation’s home State. Plaintiff — the corporation’s president — lived in Rhode Island and got into an accident there. The court concluded that Massachusetts law must apply: "In the case at bar we are dealing with a policy of insurance executed and delivered in the Commonwealth of Massachusetts to a Massachusetts corporation whose principal place of business is located in South Attleboro, Massachusetts. Consequently the construction of this policy must be determined in accordance with Massachusetts law” (568 A2d, at 1025).

In sum, there is no actual conflict between the law of New York and New Jersey, and in any event New Jersey law would apply here.

Accordingly, the order of the Appellate Division should be reversed, with costs, and judgment granted declaring that only $15,000 of the $35,000 limit provided for in the NJM policy is available to respondents Kathleen and John Stolarz.

Hancock, Jr., J.

(dissenting). Even though the argument was not advanced in Supreme Court or the Appellate Division, the majority of this Court now concludes that the controlling case of Matter of United Community Ins. Co. v Mucatel (127 Misc 2d 1045, affd without opn 119 AD2d 1017, affd for reasons stated at Special Term 69 NY2d 777) does not apply; that there never was any conflict between New Jersey and New York law; and that the reduction in coverage clause was valid all along in either State. Having thus removed both the controlling New York decision and the conflicts issue from the case, the majority simply enforces the reduction in coverage clause to reduce the Stolarzes’ recovery by $20,000. Although holding that no conflicts issue obtains, the majority nevertheless addresses the conflicts point as a hypothetical question and declares the Appellate Division analysis to be in error.

I believe that there was unquestionably a conflict of laws and that the Appellate Division decided the matter correctly using the grouping of contacts approach and properly applied the settled New York Mucatel rule to invalidate the reduction in coverage clause and award the Stolarzes the full liability limit of $35,000. In its holding that Mucatel does not apply, the majority effectively overrules that decision. The result is that the Stolarzes are retroactively deprived of contractual rights to recover the full insurance limits to which they were entitled under the Mucatel rule when the accident happened in February 1989. Because we were not asked to overrule Mucatel and no reason is given for doing so or for depriving the Stolarzes of their rights, I dissent.

I.

The majority offers two bases for its conclusion that under New York as well as New Jersey law the reduction in coverage clause is valid: (1) that because the underinsured coverage and the uninsured coverage are combined in the same endorsement, Mucatel is distinguishable; and (2) that a regulation of the Superintendent of Insurance (11 NYCRR 60-2.1 [c]), while not directly abrogating our holding in Mucatel, nevertheless compels the conclusion that Mucatel does not apply. Neither proposition withstands analysis.

That uninsured and underinsured coverages are combined and offered in one endorsement instead of in two separate endorsements is irrelevant. The form of the endorsement is of no significance. All that matters is the type of insurance triggered by the particular accident — uninsured or underinsured motorist coverage. In this case, two separate and distinct types of insurance coverage are provided in one endorsement to the Stolarzes as insureds to cover two separate and mutually exclusive contingencies: that the insureds are injured by a car that has no insurance or injured by a car that has some insurance, but in an amount less than the declared limit of the insureds’ endorsement. But only one kind of coverage per accident can be invoked in a combined uninsured/ underinsured endorsement, depending entirely on whether the offending vehicle is covered by some insurance or none. Obviously, an offending vehicle cannot, under the very definitions of the terms in the endorsements, be both uninsured and underinsured at the same time. It must be emphasized that only when the offending vehicle has some insurance and the underinsurance facet of the endorsement is invoked does the reduction in coverage clause — held invalid in Mucatel —operate.

The majority’s argument that the mere combining of both coverages in one instrument in some way obviates the effect of the Mucatel holding misses the point of that decision. Here, as in Mucatel, the validity of the reduction in coverage clause, not the endorsement, is in issue. In a claim for underinsurance — in which the reduction in coverage clause operates— the insurer pays only the stated underinsurance limit on the covered vehicle minus the primary liability limit of the other vehicle. The insurer never pays the full underinsurance coverage as stated in the declaration page of the policy. Because of this discrepancy between the stated amount of underinsurance coverage ostensibly provided by the policy and the lesser amount actually recoverable, the Mucatel court held the reduction in coverage clause to be misleading and, therefore, void.

The majority’s sole basis for distinguishing Mucatel depends on the fact that uninsured as well as underinsured coverage happens to be combined in one endorsement. It points out that under the New Jersey Manufacturers Insurance Company (NJM) endorsement when the insured is injured by a vehicle with no insurance, the insured will be paid the full amount of coverage provided in the endorsement. Thus, the argument goes, the significant aspect of the Mucatel holding — that the full amount of the coverage under the endorsement will never be paid — does not pertain. The majority’s effort to distinguish Mucatel is ineffectual, however, because the only circumstance when the full liability limits can be recovered is when the uninsured — not the underinsured — coverage is invoked. Then, of course, the reduction in coverage clause, held void in Mucatel, does not apply at all.

The majority’s argument, simply stated, is that because the endorsement provides parallel uninsured coverage, which is not affected by the void reduction in coverage clause, the reduction in coverage clause somehow becomes valid when applied to underinsurance. The fallacy in the majority’s proffered distinction is clearly illustrated when the present case is taken as an example. If the Stolarzes’ underinsurance coverage had been provided in a single endorsement, the reduction in coverage clause would have been held invalid under Muca tel and they would have received the full amount, $35,000. But because uninsured coverage was also provided in the same endorsement and the Stolarzes might have recovered the full $35,000 of uninsured coverage had they been injured by a car with no insurance, the reduction in coverage clause becomes valid and the $20,000 James settlement is deducted from the Stolarzes’ $35,000 of underinsurance. If there is any plausible reason for reaching these diametrically opposite results merely because the two types of coverage are provided on the same page, the majority does not explain it.

The majority offers a second basis for its proposition that the reduction in coverage clause is valid under New York as well as New Jersey law and that, therefore, the case presents no conflict of laws issue: that a regulation of the Superintendent of Insurance adopted in July 1992 (11 NYCRR 60-2.1 [c]), more than three years after the accident, somehow abrogates or modifies the Mucatel holding. To be sure, NJM does not argue, and the majority purportedly does not hold, that the Superintendent’s regulation should be given retrospective effect in overruling a decision of this Court and thus retroactively depriving the Stolarzes, as insureds, of contractual rights to the full coverage amount vested in February 1989. In Mucatel our Court established a rule of contract law: reduction in coverage clauses because of the way they operate on underinsurance provisions are, as a matter of New York law, void. The majority apparently concedes that the Superintendent of Insurance has no authority to overrule a decision of this Court in contract law, a field embedded in common law which is uniquely within the province of the courts. Certainly, the Superintendent could not do so retroactively (see, 4 Davis, Administrative Law Treatise § 20:7 [estoppel from retroactive lawmaking] [2d ed]; Matter of CNA Ins. Cos. [Grandstaff], 188 AD2d 965 [relying on Mucatel’s holding after 11 NYCRR 60-2.1 (c) went into effect to conclude that reduction in coverage clauses were void]).

Nevertheless, the majority gives what amounts to retroactive effect to the Superintendent’s regulation. It does so not by treating the regulation as overruling Mucatel but by concluding that "[t]he Superintendent of Insurance has determined that such clauses [held misleading by this Court in Mucatel] are not misleading, and this is persuasive authority” (majority opn, at 224 [emphasis added]). The majority does not explain how it can adopt the Insurance Superintendent’s ruling as "persuasive authority” (id.) on the legal question of whether reduction in coverage clauses are void in New York in lieu of a directly contrary decision of the New York Court of Appeals on the same question without overruling that decision. The majority’s citation of Matter of Kransdorf v Board of Educ. (81 NY2d 871) is equally puzzling. In Kransdorf we gave due deference to a decision of the Commissioner of Education on a question of interpretation of the Education Law. Here, of course, the issue does not involve statutory interpretation but the application of a clearly stated rule of New York common law enunciated by our Court to the effect that reduction in coverage clauses are void as misleading.

Both before and after Mucatel, New York courts have ruled that reduction in coverage clauses are void and unenforceable (see, Matter of Federal Ins. Co. v Reingold, 181 AD2d 769, 771; Garry v Worldwide Underwriters Ins. Co., 120 Misc 2d 91, 93, affd 101 AD2d 717; Passaro v Metropolitan Prop. & Liab. Ins. Co., 128 Misc 2d 21, affd on opn below 124 AD2d 647; see especially, Matter of CNA Ins. Cos. [Grandstaff], 188 AD2d 965, supra [relying on Mucatel’s holding after the effective date of the insurance regulation 11 NYCRR 60-2.1 (c) to conclude that reduction in coverage clauses were void]). There are no cases to the contrary. The practical result of today’s decision — that Mucatel does not apply because the endorsement includes both uninsurance and underinsurance and because of the "persuasive authority” of the Superintendent’s recently adopted regulation — can be nothing other than the sub silentio overruling of Mucatel.

II.

Because the majority’s reversal is based on its conclusion that there is no conflict of laws here, an extensive discussion of that issue is not necessary. I believe the unanimous Third Department was unquestionably correct in holding that under a grouping a contacts analysis New York law was the proper choice. The conflict between New York and New Jersey law arises from NJM’s insistence that the reduction in coverage clause can be enforced in New York in the face of this Court’s ruling that such a clause is void under New York law. Since this is an issue of contract enforcement between the Stolarzes as insureds and NJM — turning only on whether New York decisional law (i.e., Mucatel) should be given effect to invalidate the reduction in coverage clause — a grouping of contacts analysis demonstrates, on established authority, that New York law should apply (see, e.g., Auten v Auten, 308 NY 155, 160; Intercontinental Planning v Daystrom, Inc., 24 NY2d 372, 382-383 [holding New York law the proper choice in dispute over enforcement of contract made in New Jersey and invalidating contract under the New York Statute of Frauds]; Babcock v Jackson, 12 NY2d 473, 481; Colonial Penn Ins. Co. v Minkoff, 40 AD2d 819, affd 33 NY2d 542; Borg-Warner Corp. v Insurance Co., 174 AD2d 24, 29).

The majority, while ostensibly agreeing with the Appellate Division’s use of a grouping of contacts, appears to apply the traditional and outmoded lex loci contractus and, relying on New Amsterdam Cas. Co. v Stecker (3 NY2d 1), concludes that the law of New Jersey, not New York, is the proper choice. But this conclusion is based on a mistaken premise: that the dispute involves a question of contract interpretation between NJM and Kathleen Stolarz’ employer, Blue Cross. Neither Blue Cross nor the owner/lessor of the company car used by Kathleen Stolarz is a party to this proceeding. Neither has any apparent interest in the outcome of the dispute. Nor is there any question about what the reduction in coverage clause, or the underinsured motorist endorsement, or any other provision of the policy means. The dispute is exclusively between the Stolarzes, both of whom are insureds under the NJM policy, and NJM. The sole question is whether New York case law should be given effect to invalidate the reduction in coverage clause or whether that clause should be enforced against them despite New York’s declared interest in protecting its residents from the harmful effect of the clause it has declared void.

Because the issue is one of contract enforcement, not a dispute between the contracting parties pertaining to its interpretation, the place where the contract was made is of relatively little significance in a grouping of contacts analysis (see, Auten, supra, at 160; Restatement [Second] of Conflict of Laws § 188, comment e). The contact of prime significance— one not even alluded to by the majority — is the location of the risk insured against: the place where an accident triggering the underinsured motorist coverage of the NJM policy would most likely occur (see, Colonial Penn Ins. Co. v Minkoff, supra, at 819 [grouping of contacts "rule requires courts to apply the law of the State which the parties understood would be the principal location of the insured risk” (id.)]; Borg-Warner Corp. v Insurance Co., supra, at 29 [in a conflict of laws question involving the pollution exclusion clause in an insurance policy, weight given in choosing New York law to New York as the place of greatest insurance risk because 7 of the 19 hazardous waste sites at issue were located there]; Wille v Farm Bur. Mut. Ins. Co., 432 NW2d 784 [Minn Ct App] [in applying Minnesota law to void the antistacking provision in an Iowa underinsured motorist endorsement, the court stated: "the (insurance) company knows the automobile is a movable item * * * driven from state to state * * * (and) therefore, accepts the risk that the insured may be subject to liability not only in the state where the policy is written” (id., at 786)]; Glowski v Allstate Ins. Co., 134 NH 196, 589 A2d 593 [in applying law of insured’s residence and of principal location of the risk in dispute concerning uninsured/underinsured coverage, court stated: "(p)articularly in the context of insurance contracts, we have found that the State which is the 'principal location of the insured risk’ bears the most significant relationship to the contract, in the absence of an express choice of law by the parties” (id., 134 NH, at 198, 589 A2d, at 595)]).

Here, the principal location of the insured risk was in New York. Kathleen and John Stolarz lived in New York. The company car was garaged at their residence in New York. Certainly, NJM was charged with knowledge that Blue Cross had entrusted the car to its employee, Kathleen Stolarz, for use in New York and that there was a likelihood that any accident involving the car would occur in New York. Ultimately, of course, the accident triggering the Stolarzes’ claims did happen in New York. Significantly, Insurance Law § 3420 (h) defines the term "risk located in the state” as including "any vehicle which is principally garaged or principally used in this state” (emphasis added). The only place where the company car was garaged was in New York. That fact alone locates the risk in New York. The company car was principally used in New York. And, that fact, too, is enough to place the risk in New York. The majority, however, without explanation, simply ignores the location of the risk in New York as a contact of major significance. In failing to address the issue as one of enforcing the Stolarzes’ rights to invalidate the reduction in coverage clause and treating this case instead under a lex loci contractus analysis as though it involved some undefined question of interpretation between NJM and Blue Cross, the majority avoids mention of Insurance Law § 3420 (h) and Colonial Penn Ins. Co. v Minkoff (supra), and the other cases emphasizing the primary importance of the place of risk.

Moreover, there are other New York contacts. The accident involved another car driven by a New York resident insured in New York. The dispute over the enforceability of the reduction in coverage clause arose in a New York litigation which originally involved Allstate’s coverage under another automobile insurance policy issued in New York to the Stolarzes. In view of the Stolarzes’ New York residence and New York’s obvious interest in assuring that its law is applied to protect New York residents in contract enforcement issues (see, Auten, supra, at 162; Daystrom, supra, at 387-388; Borg-Warner, supra, at 29; Restatement [Second] of Conflict of Laws § 188, comment e) the Appellate Division properly concluded that New York was the place "most intimately concerned with the outcome of the case at issue” (Matter of Allstate Ins. Co. [Stolarz-N. J. Mfrs. Ins. Co.], 178 AD2d 899, 900).

The majority’s reliance upon Stecker (supra) is misplaced. Unlike the case here, Stecker did not involve a question of contract enforcement but a question of contract interpretation and whether there was any coverage at all under a New York insurance policy incorporating the 1937 amendments to the predecessor to New York Insurance Law § 167 (3), which excluded coverage when one spouse sued another for bodily injuries resulting from an automobile accident. The Court reached its result not by applying a grouping of contacts analysis but by relying on the outmoded and less flexible lex loci contractus rule embraced in the Restatement (First) of Conflict of Laws § 332 (see, Stecker, supra, at 5). While the basis of the Stecker Court’s decision was lex loci contractus, the Court’s opinion emphasized that the application of New York law at that time furthered the then existing and now outmoded New York interest in totally prohibiting inter-spousal insurance coverage so as to protect insurers from allegedly collusive litigation (see, Stecker, supra, at 6-8). By the same token the Appellate Division’s application of New York law under a grouping of contacts analysis similarly furthers an important interest of New York — protecting New York insureds from the adverse effects of void reduction in coverage clauses as explained in Mucatel (supra).

I respectfully dissent and would affirm the order of the Appellate Division.

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

Order reversed, etc.

      . New Jersey Statutes Annotated § 17:28-1.1 (e) (1) provides: "The limits of underinsured motorist coverage available to an injured person shall be reduced by the amount he [or she] has recovered under all bodily injury liability insurance or bonds.”

      . The dissent relies on Matter of CNA Ins. Cos. (Grandstaff) (188 AD2d 965) in support of its argument that, even after promulgation of the Superintendent’s regulations, all offset clauses are void. That case, however, did not involve a combined un/underinsurance clause but, like Mucatel, strictly underinsurance. Indeed, the court stated that the "relevant language in the face sheet and policy endorsement appears to be identical to that contained in [Mucatel]" (188 AD2d, at 967). The court did not even refer to the regulations.
      Similarly, the dissent’s view that Mucatel created "contractual” rights is unsupportable. The effect of Mucatel, where applicable, is to abrogate the contractual language agreed upon by the parties.

      . The dissent’s contention that the vehicle was principally used in New York is without evidentiary support in the record. Indeed, it is more logical to assume that the car was primarily used in New Jersey in connection with the business of Blue Cross/Blue Shield of New Jersey, or even if used primarily for commuting, that the bulk of Stolarz’s commute occurred in New Jersey. If the car were garaged and principally used in this State (as assumed by the dissent) it might well be that New York registration would be required (see, e.g., Vehicle and Traffic Law § 250 [1]).

      . Without belaboring the point, many other cases reject the sort of contacts the dissent relies upon (see, e.g., Burns v Aetna Cas. & Sur. Co., 741 SW2d 318 [Tenn], supra; Davis v State Farm Mut. Auto. Ins. Co., 264 Ore 547, 507 P2d 9, 10; Nadler v Liberty Mut. Fire Ins. Co., 424 SE2d 256, 262 [W Va]; State Farm Mut. Auto. Ins. Co. v Estate of Simmons, 84 NJ 28, 417 A2d 488).

      . That the uninsured and underinsured coverages are separate and distinct is apparent from the mutually exclusive definitions of these terms in the endorsement and also from the provisions of the controlling New Jersey statute, which states: "Underinsured motorist coverage shall not apply to an uninsured motor vehicle” (NJ Stat Annot § 17:28-1.1 [e] [1]). " 'Uninsured motor vehicle’ shall not include an underinsured motor vehicle” (id.., § 17:28-1.1 [e] [2]). Also, New York law distinguished uninsured motorist coverage from underinsured motorist coverage (see, Insurance Law § 3420 [f] [1], [2]).

        . As the Mucatel court explained, for a policy having an underinsured coverage in the declared amount of $25,000, the "insurer will not pay the amount stated on the face of the declaration but only $15,000 (for a New York insured vehicle) and $10,000 (for a New Jersey insured vehicle). In no event, irrespective of the State of registration of the offending vehicle, will the carrier providing the underinsured coverage ever pay the amount indicated on the policy declaration. This is both misleading and ambiguous” (Mucatel, supra, at 1046).


source: Caselaw Access Project

author: Chief Judge Kaye.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Louis S. Rosen, Appellant.
    Argued March 30, 1993;
    decided May 6, 1993

      POINTS OF COUNSEL

      Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, New York City (Herald Price Fahringer and Diarmuid White of counsel), for appellant.
    I. Defendant, already deprived of his right to counsel when the court denied his motion for a mistrial so that new counsel could be assigned, was then deprived of his right to due process and to represent himself when the court, after granting his application to proceed pro se, would not permit him to participate in sidebar conferences. (People v Gulley, 89 AD2d 874; United States v Mills, 895 F2d 897; People v McIntyre, 36 NY2d 10; Faretta v California, 422 US 806; Johnstone v Kelly, 808 F2d 214; McKaskle v Wiggins, 465 US 168; People v Sloan, 79 NY2d 386; People v Mullen, 44 NY2d 1; People v Sides, 75 NY2d 822; People v Medina, 44 NY2d 199.) II. Defendant was denied a fair trial when the prosecutor, referring to the pro se defendant’s summation, urged the jury to "consider his false statements to you yesterday when you are weighing the defendant’s knowledge and intent” and when the prosecutor argued that defendant’s demeanor in cross-examining witnesses was proof of who was in charge. (Taylor v Kentucky, 436 US 478; People v Ashwal, 39 NY2d 105; United States v Curtiss, 330 F2d 278; United

      States v Carroll, 678 F2d 1208; United States v Wright, 489 F2d 1181; United States v Schuler, 813 F2d 978; United States v Pearson, 746 F2d 787; United States v Friedman, 909 F2d 705; United States v McLain, 823 F2d 1457; People v Hamlin, 71 NY2d 750.) III. Defendant was denied a fair trial by the trial court’s erroneous rulings on character evidence, which both barred inquiry into the prosecution witnesses’ reputation for honesty and subverted the testimony regarding defendant’s good reputation. (People v Pavao, 59 NY2d 282; People v Bouton, 50 NY2d 130; People v George, 67 NY2d 817; People v Ruiz, 102 Misc 2d 465; People v Sandoval, 34 NY2d 371; People v Kuss, 32 NY2d 436; People v Lediard, 80 AD2d 237; People v Matthews, 68 NY2d 118.) IV. Defendant was denied a fair trial when the court intruded upon his examination of a favorable witness and conveyed to the jury its disbelief in the testimony. (People v Yut Wai Tom, 53 NY2d 44; People v Mendes, 3 NY2d 120; People v Mees, 47 NY2d 997; People v Charleston, 56 NY2d 886.) V. The sentence was illegally imposed because it impermissibly punished defendant for exercising his right to trial. (People v Patterson, 106 AD2d 520; Corbitt v New Jersey, 439 US 212; United States v Hutchings, 757 F2d 11; People v Miller, 65 NY2d 502; People v Pena, 50 NY2d 400; People v Kilpatrick, 143 AD2d 1.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Amyjane Rettew and Phyllis A. Monroe of counsel), for respondent.
    I. The court’s resolution of the trial management questions raised by defendant’s decision to represent himself was proper, particularly since defendant did not protest the rulings and acquiesced in the role his standby counsel was playing. (People v Narayan, 54 NY2d 106; Matter of Kunstler v Galligan, 168 AD2d 146, 79 NY2d 775; Matter of Brostoff v Berkman, 170 AD2d 364, 79 NY2d 938; La Rocca v Lane, 37 NY2d 575, 424 US 968; Matter of Peck v Stone, 32 AD2d 506; McKaskle v Wiggins, 465 US 168; People v Sawyer, 57 NY2d 12, 459 US 1178; People v Mirenda, 57 NY2d 261; United States v Mills, 895 F2d 897, 495 US 951; People v Kinchen, 60 NY2d 772.) II. The court was not required to abort this trial simply because defendant became disenchanted with his counsel’s perfectly competent performance. (People v Sawyer, 57 NY2d 12, 459 US 1178; People v Sides, 75 NY2d 822; People v Medina, 44 NY2d 199; People v Arroyave, 49 NY2d 264; People v Tineo, 64 NY2d 531; People v Baptiste, 72 NY2d 356; People v Ortiz, 54 NY2d 288; Hall v

      Potoker, 49 NY2d 501; People v Michael, 48 NY2d 1; Matter of Napoli v Supreme Ct. of State of N. Y., 40 AD2d 159, 33 NY2d 980, 417 US 947.) III. Defendant’s unpreserved attack on four comments in the People’s summation is without merit. (People v Dien, 77 NY2d 885; People v Rivera, 73 NY2d 941; People v Balls, 69 NY2d 641; People v Love, 57 NY2d 1023; People v West, 56 NY2d 662; People v Maschi, 49 NY2d 784; People v Nuccie, 57 NY2d 818; People v Jackson, 76 NY2d 908; People v Hoke, 62 NY2d 1022; United States v Curtiss, 330 F2d 278.) IV. Since there was no foundation offered for Clark’s "knowledge” of Lewis’s reputation, the court properly barred inquiry into this area. (People v George, 67 NY2d 817; People v Pavao, 59 NY2d 282; People v Streitferdt, 169 AD2d 171; People v Bouton, 50 NY2d 130; People v Carlo, 46 AD2d 764; People v Loris, 131 App Div 127; Carlson v Winterson, 147 NY 652; Williams v United States, 168 US 382.) V. The cross-examination of defendant’s character witnesses about his million dollar tax lien and his huge unpaid gambling debt was proper. (People v Dien, 77 NY2d 885; People v Rivera, 73 NY2d 941; People v Love, 57 NY2d 1023; People v West, 56 NY2d 662; People v Bendell, 111 AD2d 87, 67 NY2d 724; People v Matthews, 68 NY2d 118; People v Ruiz, 102 Misc 2d 465; People v Nuccie, 57 NY2d 818.) VI. Defendant’s unpreserved attack on 10 questions the Judge asked during Jean Clark’s cross-examination plainly fails to make out a valid claim of improper judicial interference. (People v Charleston, 56 NY2d 886; People v Yut Wai Tom, 53 NY2d 44; People v Maschi, 49 NY2d 784; People v De Mauro, 48 NY2d 892; People v Ortiz, 54 NY2d 288; Hall v Potoker, 49 NY2d 501; People v Michael, 48 NY2d 1; Matter of Napoli v Supreme Ct. of State of N. Y., 33 NY2d 980, 417 US 947; People v Jamison, 47 NY2d 882; People v Moulton, 43 NY2d 944; People v Hinton, 31 NY2d 71, 410 US 911.) VII. Defendant’s prison sentence was a fair reflection of his personal culpability for this $152 million larceny, and not, in any sense, a retaliation against him for proceeding to trial. (People v Hurley, 75 NY2d 887; People v Ruz, 70 NY2d 942; People v Ingram, 67 NY2d 897; People v George, 67 NY2d 817; People v Lemon, 62 NY2d 745; People v Oliver, 63 NY2d 973; People v Green, 54 NY2d 878; People v McGowen, 42 NY2d 905; United States v Hutchings, 757 F2d 11, 472 US 1031; People v De Jesus, 69 NY2d 855.)
   OPINION OF THE COURT

Chief Judge Kaye.

A defendant in a criminal trial who has exercised the right to self-representation may not be arbitrarily and categorically excluded from sidebar conferences. That having occurred here, a new trial is necessary.

Defendant Louis Rosen, along with nine others, was indicted on charges of conspiracy, grand larceny and other felonies arising out of a complex scheme to defraud investors through the sale of real estate limited partnership tax shelters. The evidence at trial revealed that 2,400 investors lost an aggregate of $152 million and that four financial institutions were brought to the brink of collapse.

The conspiracy, headed by John Galanis, extended from February 1984 through June 1986. Defendant was hired by the Galanis organization in late 1984 to assume high-level financial and administrative responsibilities. Of the indicted conspirators, only defendant went to trial. The others pleaded guilty, and some cooperated with the prosecution and testified against defendant. Defendant’s trial strategy was to concede the existence of a fraudulent scheme but to deny knowledge or intent.

After the prosecution’s first witness testified, defendant’s assigned counsel sought a mistrial, arguing that questions posed by the court to the witness assisted the prosecution and that the court could not provide a fair trial because it had expressed an opinion regarding defendant’s guilt in an off-the-record discussion. The court denied counsel’s motion, adding: "For that matter you told me you thought Mr. Rosen was guilty in our off the record conversation.” The court also stated that its intercession in the examination was necessary because defense counsel did not ask questions properly.

The next morning, defense counsel moved for a mistrial and assignment of new counsel, reporting that his client had lost confidence in his ability based on the previous day’s colloquy. The motion was denied. The following week, after several more witnesses testified for the People, defendant informed the court that he wished to represent himself for the remainder of the trial because of his counsel’s numerous factual mistakes and inadequate cross-examination. The court explained the dangers inherent in defendant’s proposed course, but after conferring with his counsel, defendant insisted. Accordingly, the court granted defendant’s request to proceed as his own lawyer, with counsel remaining as defendant’s "legal advisor.”

The court imposed two absolute restrictions on the arrangement. First, either defendant or his legal advisor, but not both, could question a witness; and second, defendant would not be allowed to attend any sidebar conferences. Defendant’s request to attend sidebars was rejected in the following colloquy:

"[counsel]: Yes, there is a matter that needs to be cleared up at this time. If Mr. Rosen plans on questioning as he does and if there is a sidebar, or if there is a sidebar which has occurred prior to this time, Mr. Rosen requests that he be allowed to attend the sidebar.
"the court: I won’t be having sidebars with Mr. Rosen. If it is necessary I will excuse the jury. There will be no sidebars with Mr. Rosen.”

Defendant thereafter assumed active control of his defense. He personally cross-examined 10 of the People’s 11 remaining witnesses, some examinations lasting hours. (The eleventh witness was not cross-examined.) Defendant also examined five defense witnesses, introduced exhibits, made motions and delivered the summation.

Nevertheless, as the court had instructed, sidebar conferences did not include defendant. Some involved purely "housekeeping” matters, others substantive issues, others were off the record. Some were held in the jury’s presence, others not; some were initiated by the court, others by standby counsel.

After the People rested, defendant (who had ordered daily copy of the transcript) complained that off-the-record conferences were unfair because reports of the conferences were secondhand and "diluted.” Defendant cited as an example a 12 to 15 minute sidebar that was summarized for him in two minutes. In the course of his request — which was granted— that all future conferences be recorded, defendant recited his understanding of the court’s previous ruling whereby defendant would "not [be] attending bench conferences, and if necessary * * * you would have the jury leave; or if the jury wasn’t here you would instead of having a bench conference, you would have it in open court and on the record,” to which the court responded, "Exactly.”

Defendant was convicted of conspiracy, grand larceny, securities fraud, offering a false instrument for filing and scheme to defraud, and sentenced to a term of imprisonment totalling 16 to 48 years, which by operation of law was reduced to 10 to 20 years. At the Appellate Division, defendant argued, among other things, that the trial court erred in excluding him, as a pro se defendant, from sidebar conferences. The Appellate Division affirmed, noting however that the issue was "not free from doubt” (185 AD2d 128, 130) in light of recent decisions of this Court. We reverse.

Our State Constitution declares: "In any trial in any court whatever the party accused shall he allowed to appear and defend in person and with counsel” (NY Const, art I, § 6, emphasis added; see also, People v McIntyre, 36 NY2d 10, 15; People v Koch, 299 NY 378, 381; People v Price, 262 NY 410, 411). Unlike the Federal right to self-representation, which is only implicit in the Sixth Amendment (see, Faretta v California, 422 US 806, 818-819), the State constitutional right is explicit and unambiguous.

It is helpful at the outset to note what this case is not about. A defendant v/ho has elected to proceed pro se is both an accused and an attorney. Accordingly, cases discussing defendant’s right to be present at sidebar — solely in the role of the accused (see, e.g., People v Antommarchi, 80 NY2d 247, 250; People v Velasco, 77 NY2d 469, 472-473) — are inapposite. A defendant’s right to be present at material stages of trial stems from the Due Process Clauses of the State and Federal Constitutions as well as statute (see, People v Morales, 80 NY2d 450, 453-457), while the right to appear at trial in the role of attorney derives primarily from article I, § 6 of the State Constitution and the Sixth Amendment to the Federal Constitution (see, People v McIntyre, 36 NY2d, at 10; Faretta v California, 422 US, at 818).

Nor, contrary to the People’s contention, is this case about discretionary trial management. Although a Judge may reasonably limit the conduct of sidebar discussions, the court’s summary order that there "will be no sidebars with Mr. Rosen,” arbitrarily impacting as it did only defendant (but not standby counsel or the two prosecutors) reveals that the preclusion was not evenhandedly imposed to manage the orderly progress of the proceedings. Indeed, the court offered to dismiss the jury if defendant wished to address the court, a more disruptive measure than simply allowing defendant to stand at sidebar.

The issue that is presented here is whether the trial court may, consistent with the State constitutional provision securing the right to "appear and defend in person,” arbitrarily bar only the pro se defendant from sidebar conferences despite his specific request to attend.

A defendant’s desire to conduct the defense may arise from a variety of reasons, ranging from the practical to the nefarious (see, People v McIntyre, 36 NY2d, at 16). Here, defendant was motivated by dissatisfaction with his counsel’s performance. Indeed, by all accounts, defendant was considerably more familiar than counsel with the intricate workings of Galanis’ operation and the 12,000 pages of discovery material. His motion for a mistrial to obtain new counsel having been denied, defendant concluded, after appropriate judicial admonition, that his interests would be furthered by self-representation. Such a decision obviously entailed both risks and benefits.

A defendant lacking legal training and courtroom experience may be at a decided disadvantage in carrying out the complex task of presenting a defense. Thus, most defendants choose to be represented by counsel, and necessarily delegate substantial control of the case to the lawyer, except for certain fundamental decisions — for example, whether to testify or waive a jury (People v Ferguson, 67 NY2d 383, 390). Hence, the accused ordinarily plays a relatively passive advocacy role and is bound by the innumerable strategic choices made by counsel during trial.

By contrast, the status of a defendant who elects to proceed pro se changes dramatically. The defendant has perforce rejected a passive role and has chosen, for better or worse, to participate actively in all aspects of the case. Indeed, the law confers upon that defendant "certain specific rights to have his [or her] voice heard” (McKaskle v Wiggins, 465 US 168, 174):

"The pro se defendant must be allowed to control the organization and content of his [or her] own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial.” (Id., at 174.)

In the present case, the trial court — although not required to do so (see, People v Mirenda, 57 NY2d 261, 264)— allowed the defense to flexibly fashion the roles of the pro se defendant and standby counsel. Thus to the extent standby counsel joined in the proceedings without defendant’s protest, it may be presumed that defendant waived the opportunity to personally execute the particular function (see, McKaskle v Wiggins, 465 US, at 182). On this record, however, that presumption may not be invoked with respect to the sidebars.

Indisputably, a defense representative, acting as counsel, was entitled to attend sidebars. While the People argue that standby counsel’s appearances at the conferences reflected the "division of labor” chosen by defendant, and that the trial court could not have known that defendant wished to participate, those claims are belied by defendant’s specific request to be present. On this record, the logical conclusion is that the division of labor, at least in connection with sidebar conferences, was imposed, not chosen.

We also reject the argument that defendant’s claim is unpreserved. The People fault defendant for "dropping] the subject without further discussion” after the court announced its ruling denying defendant’s request to attend sidebars. However, defendant’s specific application and the court’s equally specific ruling were sufficient to preserve the issue for appeal (see, CPL 470.05 [2]).

Moreover, at the close of the People’s case, defendant again expressed an interest in the sidebars. Acknowledging the court’s previous ruling that he could "not attend[ ] bench conferences” — which the Judge confirmed — defendant requested that the sidebars at least be recorded. Defendant’s acquiescence in the court’s unequivocal preclusion order, and his attempt to salvage what he could by seeking to have the conferences transcribed, cannot be deemed a waiver of the issue.

The right to appear pro se exists, in part, "to affirm the dignity and autonomy of the accused” (McKaskle v Wiggins, 465 US, at 176-177). Those values are threatened when a defendant who has assumed the risks inherent in self-representation is arbitrarily denied, despite specific request, the opportunity to attend sidebar discussions. Additionally, to the extent sidebars are conducted in the jury’s presence, there may be a danger that the "jury’s perception that the defendant is representing himself [or herself]” will be destroyed (id., at 178). Of course, the right to attend sidebars is no broader than the right to self-representation itself, which may within an appropriate exercise of discretion be denied or divested (see, People v McIntyre, 36 NY2d, at 17-18). Here, however, the trial court advanced no reason for its refusal to permit defendant to attend sidebars. In these circumstances, we conclude that defendant’s State constitutional right to self-representation was violated.

In light of this conclusion, we need not consider defendant’s alternative arguments.

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

Judges Simons, Titone, Hancock, Jr., and Bellacosa concur; Judge Smith taking no part.

Order reversed, etc.

       While the 1777 and 1821 State Constitutions merely provided that the accused "shall be allowed counsel” (NY Const art XXXIV [1777]; NY Const, art VII, § 7 [1821]), the explicit right to "appear and defend in person” was added in 1846 (NY Const, art I, § 6), and has been retained in our Constitution ever since.


author: Bellacosa, J. Smith, J.

text:
    In the Matter of Edgar A. King, as Supervisor of the Town of Northumberland, et al., Appellants, v Mario M. Cuomo, as Governor of the State of New York, et al., Respondents.
    Argued March 23, 1993;
    decided May 6, 1993

      POINTS OF COUNSEL

      Oliver & Oliver, Albany (Lewis B. Oliver, Jr., and Harriet B. Oliver of counsel), for appellants.
    I. Assembly Bill No. 9592-A became a law in like manner as if the Governor had signed it pursuant to New York State Constitution, article IV, § 7 because the bill was presented to the Governor on July 19, 1990, and the bill was not returned by the Governor with his objections (veto) within 10 days after it was presented to him. (Matter of Wendell v Lavin, 246 NY 115; Schuyler v South Mall Constructors, 32 AD2d 454; People ex rel. Gilbert v Wemple, 125 NY 485; Oneida Sav. Bank v Tese, 108 AD2d 1042; City of Buffalo v Lawley, 6 AD2d 66; Zarrell v Gutenplan Assocs., 111 Misc 2d 340; Poupore v Seguin, 82 Misc 2d 1; City of Rye v Ronan, 67 Misc 2d 972; People v Devlin, 33 NY 269; People ex rel. Argus Co. v Palmer, 146 NY 406.) II. This Court should declare that Assembly Bill No. 9592-A became a law on or about July 30, 1990 because the recall procedure utilized by the Legislature in this case was not authorized by the rules of the Senate and Assembly and involved a joint resolution that was not voted upon in violation of Rules of the Assembly, rule II, § 4 (b), Rules of the Assembly, rule III, § 5 (f) and Rules of the Senate, rule VI, § 9 (e) which provide that a bill may be recalled only by a vote of the members of the Assembly and Senate. (People v Devlin, 33 NY 269; New York Pub. Interest Research Group v Steingut, 40 NY2d 250; Matter of Board of Educ. v City of New York, 41 NY2d 535; Norwick v Rockefeller, 33 NY2d 537; Matter of Schneider v Rockefeller, 31 NY2d 420; Finger Lakes Racing Assn. v New York State Off-Track Pari-Mutuel Betting Commn., 30 NY2d 207; People v Supervisors of Orange County, 17 NY 235; City of Rye v Ronan, 67 Misc 2d 972, 40 AD2d 950; Franklin Natl. Bank v Clark, 26 Misc 2d 724.) III. The Secretary of State should be compelled to execute a certificate as to when Assembly Bill No. 9592-A became law or that the bill became law on or about July 30, 1990. (Whalen v Wagner, 2 Misc 2d 89, 3 AD2d 936, 4 NY2d 575; Helm v Day, 153 App Div 931; People v Devlin, 33 NY 269.)

      Robert Abrams, Attorney-General, Albany (Lawrence L. Doolittle, Jerry Boone and Peter H. Schiff of counsel), for respondents.
    I. The court below properly dismissed this case on separation of powers grounds. (Heimbach v State of New York, 59 NY2d 891; City of Rye v Ronan, 67 Misc 2d 972, 40 NY2d 950; Zimmerman v State of New York, 76 Misc 2d 193; Saxton v Carey, 44 NY2d 545; Matter of Board of Educ. v City of New York, 41 NY2d 535; Norwick v Rockefeller, 70 Misc 2d 923, 33 NY2d 537; Wein v Carey, 41 NY2d 498; People v Devlin, 33 NY 269.) II. The recall procedure used by the Legislature with the concurrence of the Governor does not violate the Constitution. (People v Devlin, 33 NY 269; Heimbach v State of New York, 59 NY2d 891; Saxton v Carey, 44 NY2d 545; New York Pub. Interest Research Group v Steingut, 40 NY2d 250.) III. Both plaintiffs and the court are bound by the entries in the legislative journals. (Heimbach v State of New York, 59 NY2d 891; City of Rye v Ronan, 67 Misc 2d 972, 40 AD2d 950; Zimmerman v State of New York, 76 Misc 2d 193.) IV. The remedy plaintiffs seek may not be granted. (The Pocket Veto Case, 279 US 655; Chevron Oil Co. v Huson, 404 US 97; Gager v White, 53 NY2d 475, cert denied sub nom. Guertin Co. v Cachat, 454 US 1086; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184, 459 US 837; Matter of McCann v Scaduto, 71 NY2d 164.)
   OPINION OF THE COURT

Bellacosa, J.

The bicameral "recall” practice used by the Legislature to reacquire Assembly Bill No. 9592-A of 1990 from the Governor’s desk is not authorized by article IV, § 7 of the New York State Constitution. The Constitution prescribes the respective powers of the Executive and the Legislative Branches as to how a passed bill becomes a law or is rejected. The order of the Appellate Division, therefore, should be reversed and the challenged procedure should be declared unconstitutional, but only prospectively.

Assembly Bill No. 9592-A, entitled "an act to amend the agriculture and markets law, in relation to the siting of solid waste management-resource recovery facilities within agricultural districts,” was passed by the Assembly and the Senate on June 28, 1990 and June 29, 1990, respectively. It was formally sent to the Governor on July 19, 1990. The next day, according to the official journals of the Legislature, the Assembly adopted a resolution, with which the Senate concurred, requesting that the Governor return the bill to the Legislature. The Executive Chamber accommodated the request on the same day.

Appellants brought their combined CPLR article 78 and declaratory judgment action seeking a ruling (1) that the method used by the Legislature to retrieve the passed bill is unconstitutional; and (2) that the passed bill, in effect, automatically became law because the Governor failed to act on it within 10 days of its delivery to his desk on July 19, 1990. Supreme Court dismissed the action and the Appellate Division modified to declare the recall practice constitutional. Appellants are before this Court by an appeal taken as of right on a substantial constitutional issue.

L

Preliminarily, the State defendants argue that the Judicial Branch may not review the constitutionality of this recall practice, as it would be an intrusion on the inviolate roles of the separate law-making Branches. We conclude that the courts do not trespass "into the wholly internal affairs of the Legislature” (Heimbach v State of New York, 59 NY2d 891, 893, appeal dismissed 464 US 956) when they review and enforce a clear and unambiguous constitutional regimen of this nature. In Heimbach v State of New York (supra), by sharp contrast, the internal procedural issue involved how the Clerk of the Senate recorded and certified a roll call of votes (compare, Matter of Board of Educ. v City of New York, 41 NY2d 535, 538). Our precedents are firm that the "courts will always be available to resolve disputes concerning the scope of that authority which is granted by the Constitution to the other two branches of the government” (Saxton v Carey, 44 NY2d 545, 551; New York State Bankers Assn. v Wetzler, 81 NY2d 98, 102; see also, Myers v United States, 272 US 52, 116; Matter of New York State Inspection, Sec. & Law Enforcement Empls. v Cuomo, 64 NY2d 233, 239). That is precisely what is being done here (see, Wolfe v McCaull, 76 Va 876, 880 [1882] [constitutionality of recall procedure is a justiciable issue]).

The internal rules of the Assembly and the Senate, which reflect and even purport to create the recall practice, are entitled to respect. However, those rules cannot immunize or withdraw the subsisting question of constitutional law-making power from judicial review. Since the authority of the Legislature is "wholly derived from and dependent upon the Constitution” (Matter of Sherrill v O’Brien, 188 NY 185, 199), the discrete rules of the two houses do not constitute organic law and may not substitute for or substantially alter the plain and precise terms of that primary source of governing authority. The rule-making authority of article III, § 9 prescribes that "[e]ach house shall determine the rules of its own proceedings” (emphasis added). Contrary to the assertion of the dissent, that authorization cannot justify rules which extend beyond the Legislature’s "own proceedings” and are inextricably intertwined with proceedings pending entirely before the Executive. These rules substantially affect Executive proceedings after the Legislature’s proceedings, with respect to a passed bill, have formally ended by transmittal of the passed bill to the Governor’s desk.

The challenged recall practice significantly unbalances the law-making options of the Legislature and the Executive beyond those set forth in the Constitution. By modifying the nondelegable obligations and options reposed in the Executive, the practice compromises the central law-making rubrics by adding an expedient and uncharted bypass. The Legislature must be guided and governed in this particular function by the Constitution, not by a self-generated additive (see, People ex rel. Bolton v Albertson, 55 NY 50, 55).

IL

Article IV, § 7 of the State Constitution prescribes how a bill becomes a law and explicitly allocates the distribution of authority and powers between the Executive and Legislative Branches. The key provision grants law-making authority from the People as follows:

"[e]very bill which shall have passed the senate and assembly shall, before it becomes a law, be presented to the governor; if he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it shall have originated * * * [ijf any bill shall not be returned by the governor within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it” (emphasis added).

The description of the process is a model of civic simplicity: (1) Approval; (2) Rejection by Veto; or (3) Approval by Inaction. The Constitution thus expressly creates three routes by which a passed bill may become a law by gubernatorial action or inaction or be rejected by veto.

The putative authority of the Legislature to recall a passed bill once it has been formally transmitted to the Governor "is not found in the constitution” (People v Devlin, 33 NY 269, 277). We conclude, therefore, that the practice is not allowed under the Constitution. To permit the Legislature to use its general rule-making powers, pertaining to in-house procedures, to create this substantive authority is untenable. As this Court stated in Devlin "[wjhen both houses have * * * finally passed a bill, and sent it to the governor, they have exhausted their powers upon it” (id., at 277 [emphasis added]). That expression and principle apply with equal force here, even though in Devlin the recall was attempted by only one house rather than both (see, Wolfe v McCaull, 76 Va 876, 883, supra).

When language of a constitutional provision is plain and unambiguous, full effect should be given to "the intention of the framers * * * as indicated by the language employed” and approved by the People (Settle v Van Evrea, 49 NY 280, 281 [1872]; see also, People v Rathbone, 145 NY 434, 438). In a related governance contest, this Court found "no justification * * * for departing from the literal language of the constitutional provision” (Anderson v Regan, 53 NY2d 356, 362 [emphasis added]). As we stated in Settle v Van Evrea:

"[I]t would be dangerous in the extreme to extend the operation and effect of a written Constitution by construction beyond the fair scope of its terms, merely because a restricted and more literal interpretation might be inconvenient or impolitic, or because a case may be supposed to be, to some extent, within the reasons which led to the introduction of some particular provision plain and precise in its terms.
"That would be pro tanto to establish a new Constitution and do for the people what they have not done for themselves” (49 NY 280, 281, supra).

Thus, the State’s argument that the recall method, in practical effect and accommodation, merely fosters the underlying purpose of article IV, § 7 is unavailing (see, New York State Bankers Assn. v Wetzler, 81 NY2d 98, 104, supra).

If the guiding principle of statutory interpretation is to give effect to the plain language (Ball v Allstate Ins. Co., 81 NY2d 22, 25; Debevoise & Plimpton v New York State Dept. of Taxation & Fin., 80 NY2d 657, 661; McKinney’s Cons Laws of NY, Book 1, Statutes §94), "[especially should this be so in the interpretation of a written Constitution, an instrument framed deliberately and with care, and adopted by the people as the organic law of the State” (Settle v Van Evrea, 49 NY, at 281, supra). These guiding principles do not allow for interstitial and interpretative gloss by the courts or by the other Branches themselves that substantially alters the specified law-making regimen. Courts do not have the leeway to construe their way around a self-evident constitutional provision by validating an inconsistent "practice and usage of those charged with implementing the laws” (Anderson v Regan, 53 NY2d 356, 362, supra; see also, People ex rel. Burby v How- land, 155 NY 270, 282; People ex rel. Crowell v Lawrence, 36 Barb 177, affd 41 NY 137; People ex rel. Bolton v Albertson, 55 NY 50, 55, supra).

The New York Legislature’s long-standing recall practice has little more than time and expediency to sustain it. However, the end cannot justify the means, and the Legislature, even with the Executive’s acquiescence, cannot place itself outside the express mandate of the Constitution. We do not believe that supplementation of the Constitution in this fashion is a manifestation of the will of the People. Rather, it may be seen as a substitution of the People’s will expressed directly in the Constitution.

The Governor has been referred to as the "controlling element” of the legislative system (4 Lincoln, The Constitutional History of New York, at 494 [1906]). The recall practice unbalances the constitutional law-making equation, which expressly shifts power solely to the Executive upon passage of a bill by both houses and its transmittal to the Executive. By the ultra vires recall method, the Legislature significantly suspends and interrupts the mandated regimen and modifies the distribution of authority and the complementing roles of the two law-making Branches. It thus undermines the constitutionally proclaimed, deliberative process upon which all people are on notice and may rely. Realistically and practically, it varies the roles set forth with such careful and plain precision in the constitutional charter. The limbo status to which a passed bill is thus consigned withdraws from or allows evasion of the assigned power granted only to the Executive to approve or veto a passed bill or to allow it to go into effect after 10 days of inaction.

Though some practical and theoretical support may be mustered for this expedient custom (see, e.g., 4 Lincoln, op. cit., at 501), we cannot endorse it. Courteous and cooperative actions and relations between the two law-making Branches are surely desirable and helpful, but those policy and governance arguments do not address the issue to be decided. Moreover, we cannot take that aspirational route to justify this unauthorized methodology.

The inappropriateness of this enterprise, an "extraconstitutional method for resolving differences between the legislature and the governor,” also outweighs the claimed convenience (Zimmerman, The Government and Politics of New York State, at 152). For example, "[t]his procedure 'creates a negotiating situation in which, under the threat of a full veto, the legislature may recall a bill and make changes in it desired by the governor, thus allowing him to exercise de facto amendatory power’ ” (Fisher and Devins, How Successfully Can the States’ Item Veto be Transferred to the President?, 75 Geo LJ 159, 182, quoting Benjamin, The Diffusion of the Governor’s Veto Power, 55 State Govt 99, 104 [1982]).

Additionally, the recall practice "affords interest groups another opportunity to amend or kill certain bills” (Zimmerman, op. cit., at 152), shielded from the public scrutiny which accompanies the initial consideration and passage of a bill. This "does not promote public confidence in the legislature as an institution” because "it is difficult for citizens to determine the location in the legislative process of a bill that may be of great importance to them” (id., at 145, 152). Since only "insiders” are likely to know or be able to discover the private arrangements between the Legislature and Executive when the recall method is employed, open government would suffer a significant setback if the courts were to countenance this long-standing practice.

In sum, the practice undermines the integrity of the lawmaking process as well as the underlying rationale for the demarcation of authority and power in this process. Requiring that the Legislature adhere to this constitutional mandate is not some hypertechnical insistence of form over substance, but rather ensures that the central law-making function remains reliable, consistent and exposed to civic scrutiny and involvement.

We are satisfied also that legitimate correction of mere technical oversights or errors in passed bills may be accomplished by chapter amendments, through messages of necessity and other available mechanisms. It is no justification for an extraconstitutional practice that it is well intended and efficient, for the day may come when it is not so altruistically exercised.

Appellants are entitled, therefore, to a judicial declaration that the recall practice is not constitutionally authorized.

¡IL

The particular remedy and relief appropriate to this case is a critically distinct issue. Appellants seek an order compelling the Secretary of State to execute a certificate that Assembly Bill No. 9592-A became law on or about July 30, 1990. Though the recall practice is not constitutionally authorized, neither is the mandamus relief warranted.

Despite the removal of the subject bill from the Governor’s desk, logic and sound public policy do not compel or persuade us to treat the bill in this case as having been on the Executive’s desk for the requisite 10 days, within the meaning of article IV, § 7. Also, the bill in question lapsed when the 1990 session of the Legislature ended, and resuscitation by judicial decree in the fashion requested would be a disproportionate remedy and would " 'wreak more havoc in society than society’s interest in stability will tolerate’ ” (Gager v White, 53 NY2d 475, 483, cert denied sub nom. Guertin Co. v Cachat, 454 US 1086; see also, Hurd v City of Buffalo, 41 AD2d 402, affd 34 NY2d 628). Prospective application of a new constitutional rule is not uncommon where it would have a "broad, unsettling effect” (Matter of McCann v Scaduto, 71 NY2d 164, 178; see also, Foss v City of Rochester, 65 NY2d 247, 260; City of Rochester v Chiarella, 65 NY2d 92, 96; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184, 192-193, cert denied 459 US 837; Hurd v City of Buffalo, 41 AD2d 402, supra; New York Pub. Interest Research Group v Steingut, 40 NY2d 250, 261). It is well established that "the courts should not act 'so as to cause disorder and confusion in public affairs even though there may be a strict legal right’ ” (Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1, 13-14, quoting Matter of Andresen v Rice, 277 NY 271, 282 [declaring unconstitutional one of the oldest statutes and practices in the history of New York dating back to 1788]).

The recall practice has been in operation for over a century (see, 4 Lincoln, op. cit., at 499-501). Between 1932 and 1980 a total of 2,131 bills were recalled; while most bills are recalled only once, in 1939, 1963, 1966, 1968 and 1976 a single bill was recalled three times and in 1977 three bills were recalled three times (see, Zimmerman, op. cit., at 149-151; see also, Fisher and Devins, How Successfully Can the States’ Item Veto be Transferred to the President?, 75 Geo LJ 159, 182). Often a bill that has been recalled is never resubmitted to the Governor (see, Zimmerman, op. cit, at 150-151 [700 of the 2,131 bills recalled never resubmitted]). It is impossible to calculate how many, and which, bills would be affected by a ritualistic approach to the relief related to our declaration that the recall practice is not constitutionally authorized. In addition, despite the mitigation from the short four-month Statute of Limitations (CPLR 217), a retroactive ruling, or even a ruling with resuscitative effect, in the instant case would cause profoundly uncertain effects in particular and unwarranted "disorder and confusion” (Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d, at 14, supra).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the bicameral recall practice should be declared unconstitutional prospectively from this date forward.

Smith, J.

(dissenting in part). The principal issue in this case is whether the procedure used by the Legislature for recalling bills which have been presented to the Governor, a procedure in use since 1865, violates article IV, § 7 of the State Constitution. The secondary issue is whether the bill in this case became a law in like manner as if the Governor had signed it. I agree with the majority’s conclusion on the latter issue that the bill was not on the Governor’s desk for the requisite 10 days (see, majority opn, at 256) and, thus, did not become a law "in like manner as if he [governor] had signed it” (NY Const, art IV, § 7). However, I disagree with the majority’s conclusion, as to the primary issue, that the power of the Legislature to recall a bill that has been presented to the Governor " 'is not found in the constitution’ ” and, therefore, does not exist (majority opn, at 252). Because I believe that the long-standing practice by the Legislature of recalling bills fits within the constitutional authority of the Legislature to "determine the rules of its own proceedings” (NY Const, art III, § 9) and does not violate article IV, § 7 of the State Constitution, I dissent and vote to affirm that part of the Appellate Division order that so holds.

The undisputed facts follow: On June 28, 1990, the New York State Assembly unanimously voted to pass Assembly Bill No. 9592-A, entitled "an act to amend the agriculture and markets law, in relation to the siting of solid waste management-resource recovery facilities within agricultural districts”, and Clerk of the Assembly duly certified the bill. The next day, the Senate also passed the bill by unanimous vote. On July 19, 1990, the bill, together with the certificates of the Temporary President of the Senate and Speaker of the Assembly, were presented to the Governor for signature. The following day, pursuant to Rules of the Assembly, rule II, § 4 (d), a member who introduced the bill, Mr. Parment, moved to recall the bill from the Governor. On a form referred to as "JC-14 (To Senate) Recall of Assembly bill from Governor”, the Assembly resolved, if the Senate concur, "[t]hat a respectful message be sent to the Governor requesting the return to the Assembly of Assembly bill (No. 9592-A)”. Upon concurrence by the Senate (see, Rules of Senate, rule VI, § 9 [a]), the resolution was delivered to the Governor, who complied and returned the bill to the Assembly the same day. The Legislature’s practice of recalling bills from the Governor dates back to April 21, 1865.

Appellants commenced this combined CPLR article 78 proceeding and declaratory judgment action seeking, among other things, a declaration that Assembly Bill No. 9592-A became law 10 days after it was presented to the Governor, or on July 30, 1990. The complaint-petition alleged that the bill became a law "in like manner as if the Governor had signed it pursuant to New York State Constitution Article 4, Section 7, because the bill was presented to the Governor on July 19, 1990, and the bill was not returned by the Governor with his objections (veto) within ten days after it was presented to him.” Appellants argued that the procedure used by the Assembly and the Senate to recall the bill from the Governor after it was presented to him violated article IV, § 7 of the State Constitution. Respondents contended, among other things, that since the bill was recalled by the Legislature pursuant to its internal rules, and the bill was not on the Governor’s desk for 10 days, it did not become law pursuant to article IV, § 7 of the State Constitution. Respondents contended further that the manner and means of presenting a bill to the Governor are matters solely within the province of the Legislature and, thus, the complaint-petition failed to state a cause of action. Supreme Court dismissed the complaint-petition, stating:

"As is pointed out in Heimbach [v State of New York, 59 NY2d 891], supra, at page 893 ' "[I]t is not the province of the courts to direct the legislature how to do its work”.’ [sic] * * *
"This Court declines in the particular facts in this case to intervene and interfere with the legislative procedure because to do so would interfere with, the separation of powers as commented on in Heimbach. ”

The Appellate Division, Third Department, modified, on the law, by reversing so much of Supreme Court’s order as dismissed the complaint-petition, declared the recall procedure utilized by the Legislature in 1990 with reference to Assembly Bill No. 9592-A constitutional, and, as so modified, affirmed (180 AD2d 215). The Court found that "nothing in the State Constitution * * * either authorizes or proscribes the recall process * * * [and that] specific authority is provided for each house to 'determine the rules of its own proceedings’ (NY Const, art III, § 9)” (id., at 217). Appellants appeal as of right (CPLR 5601 [b] [1]).

Contrary to the majority’s position, the recall procedure utilized by the Legislature does not "undermine * * * the integrity of the law-making process” (majority opn, at 255). Rather, it exemplifies the constitutionally authorized power of the Legislature to "determine the rules of its own proceedings” (NY Const, art III, § 9). In Heimbach v State of New York (59 NY2d 891, 893), this Court stated that "based upon our respect for the basic polity of separation of powers and the proper exercise of judicial restraint, we will not intrude into the wholly internal affairs of the Legislature.” Here, the Legislature had in place internal rules for recalling bills which had been presented to the Governor, prior to their becoming law. Pursuant to Rules of the Assembly, rule II, § 4 (d), the Assembly prepared a printed form “JC-14” to commence recall procedures regarding Assembly Bill No. 9592-A. Using its internal procedures, the Senate concurred with the Assembly resolution to recall the bill. Again using internal rules, the Assembly forwarded the request for recall to the Governor, who, as he had done many times in the past, immediately complied with the request. There is nothing before the Court to indicate that the actions by the Legislature in recalling Assembly Bill No. 9592-A from the Governor the day after it was sent to him constituted anything other than “the wholly internal affairs of the Legislature,” into which we should not intrude.

The majority’s argument that since the power of the Legislature to recall a bill which has been presented to the Governor is not expressly found in the Constitution it does not exist (see, majority opn, at 252) must fail. Article IV, § 7 of the State Constitution, entitled “Action by governor on legislative bills; reconsideration after veto”, addresses the action by the Governor on legislative bills and what gubernatorial action results in a bill becoming a law. The only reference to legislative action is in regard to reconsideration of a bill after veto by the Governor. Thus, no inference of any kind can be drawn from the omission from article IV, § 7 of a provision expressly granting recall powers to the Legislature.

Moreover, as stated, the Legislature’s practice of recalling bills that have been presented to the Governor dates back to 1865. NY Constitution, article IV, § 7 has been amended several times during this period. The fact that no prohibition on the Legislature’s practice of recalling bills has been added suggests that the practice was intended to be permitted.

Appellants’ reliance on People v Devlin (33 NY 269) to support their position that the act of the Legislature in recalling Assembly Bill No. 9592-A from the Governor violates the State Constitution is misplaced. In Devlin (supra) the Assembly sent a bill, which had been passed by both the Senate and the Assembly, to the Governor for his approval. The next day, the Assembly, without concurrence from the Senate, requested that the Governor return the bill to the Assembly. The same day, the Governor returned the bill to the Assembly with a message stating that it was so returned upon the request of the Assembly. After several revisions by the Assembly, which were contested by the Senate, the bill was signed by the Governor. This Court concluded that based on the provisions of both the Constitution and certain statutes, the bill became the law of the State (id., at 276). The Court then considered the following question:

"After the passage of a bill, in the legal and constitutional form, by both houses of the legislature, and the same has been transmitted by them to the governor, in the manner provided by the constitution, have the two houses exhausted their power over it, or can they, or can either of the said houses, without the consent of the other, recall the bill, by resolution, and revest themselves with power further to act upon it?” (Id., at 276-277.)

The Court stated that if the houses of the Legislature do possess the power, "it is not found in the constitution; it is not found in the statute; it is not shown to be the custom or usage” (id., at 277). The Court stated further that:

"Although each house shall determine the rules of 'its own proceedings,’ no rule for such a proceeding as that of sending for a bill in the possession of the governor, has been shown to exist * * *. If the assembly possessed the power of recalling bills from the governor, after being passed by both houses and sent to him, it is not found in parliamentary law, and no custom of that kind is shown * * *. By no rule or custom shown, nor by the exercise of common reason, could one house, by their action, undo, annul or change what both had solemnly done, under their solemn legislative sanction, according to all constitutional forms, and according to their published rules and forms of law” (id., at 277-278).

Here, the bill was recalled by concurrent resolution of the Assembly and Senate and agreement by the Governor, not by a one-house recall as was the case in Devlin (supra). In addition, Rules of the Assembly, rule II, §4 (d) and Rules of the Senate, rule VI, § 9 specifically address the Legislature’s internal procedures for recalling bills. Furthermore, the longstanding practice of recalling bills from the Governor, through concurrent resolution of the Assembly and Senate dates back to 1865. Thus, it cannot be said that the power of the Legislature to recall bills from the Governor is not grounded in the internal rules of the Legislature or in custom.

Moreover, nothing in the language of the Constitution indicates that the act of recalling a bill once it had been presented to the Governor for approval or objection, violates the Constitution. To the contrary, the State Constitution vests in the Assembly and the Senate the power to "determine the rules of its own proceedings” (NY Const, art III, § 9).

Chief Judge Kaye and Judges Simons and Titone concur with Judge Bellacosa; Judge Smith dissents in part in a separate opinion in which Judge Hancock, Jr., concurs.

Order reversed, with costs, and judgment granted in accordance with the opinion herein.

      . Rules of the Assembly (1989-1990), rule II, § 4 (d) provides: "A motion to recall a bill from the Governor for correction may be made by or on behalf of the member who introduced the bill, under any order of business, and the votes for consideration and amendment of such bill may be taken immediately upon its return.”

      . Rules of the Senate (1989-1990), rule VI, § 9 (a) provides, in part: "[Resolutions recalling bills from or returning bills to the Governor or the Assembly, or relating to adjournment, may be introduced at any time for immediate consideration.”
      Rule VIII, § 8 states: "All bills recalled from the Governor for the purpose of amendment, if amended, and all Senate bills amended by the Assembly, and returned to the Senate, for its concurrence, and all bills amended by the report of a conference committee, shall be subject to the provisions of section 1 of this Rule.”
      Section 1 of rule VIII outlines the procedures for passage of "bills on desks”.

      . New York Constitution, article IV, § 7 provides, in part: "Every bill which shall have passed the senate and assembly shall, before it becomes a law, be presented to the governor; if he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it shall have originated, which shall enter the objections at large on the journal, and proceed to reconsider it * * *. If any bill shall not be returned by the governor within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it”.