author: Alexander, J. Titone, J.

text:
    The People of the State of New York, Respondent, v Wilfredo Rosario, Appellant.
    Argued September 12, 1991;
    decided October 24, 1991
    POINTS OF COUNSEL

      Robert S. Dean and Philip L. Weinstein for appellant.
    I. The hearing court’s holding, upheld by the court below, that auxiliary Police Officer Hernandez was a "fellow officer” who could "direct” arresting Officer Belton to arrest appellant, deprived appellant of his right to be free from unreasonable searches and seizures. (Whiteley v Warden, 401 US 560; People v Jennings, 54 NY2d 518; People v Luciani, 120 Misc 2d 826; People v Jackson, 72 Misc 2d 297; United States v Sorrells, 714 F2d 1522; People v Phillips, 120 AD2d 621; People v Brnja, 50 NY2d 366; People v Bigelow, 66 NY2d 417; People v Bell, 63 NY2d 796; People v Rizzo, 40 NY2d 425.) II. Auxiliary Officer Hernandez’s testimony that, after speaking to an unknown citizen informant, he went looking for "the defendant,” the "suspect” who fit the "description,” deprived appellant of his due process right to a fair trial. (People v Lopez, 123 AD2d 399, 69 NY2d 975; People v Melendez, 55 NY2d 445; People v Holt, 67 NY2d 819; People v Hines, 112 AD2d 316; People v Green, 35 NY2d 437.) III. The Wade hearing court’s refusal to allow the defense to call the identifying witness to the stand, on the issue of suggestiveness, denied appellant his Federal constitutional rights to compulsory process and to due process of law. (People v Chipp, 75 NY2d 327.)

      Robert M. Morgenthau, District Attorney (Patrick J. Hynes and Norman Barclay of counsel), for respondent.
    I. Defendant’s suppression motion was properly denied. (People v Johnson, 66 NY2d 398; People v Bigelow, 66 NY2d 417; People v Landy, 59 NY2d 369; People v Rodriguez, 52 NY2d 483; People v Lypka, 36 NY2d 210; People v Hicks, 38 NY2d 90; People v Green, 35 NY2d 193; People v Bellinger, 74 NY2d 633; People v Harrison, 57 NY2d 470; People v McRay, 51 NY2d 594.) II. The prosecutor’s examination of Officer Hernandez did not prejudice defendant. (People v Melendez, 55 NY2d 445; People v Lopez, 123 AD2d 399, 69 NY2d 975; People v Gines, 36 NY2d 932; People v Stanard, 32 NY2d 143; People v Casanova, 160 AD2d 394, 76 NY2d 786; People v Silva, 66 AD2d 662; People v Jackson, 70 NY2d 884.) III. Defendant did not have an unqualified right under the Federal Constitution to call Bravo Zayas as a witness at the Wade hearing. (People v Chipp, 75 NY2d 327; Watkins v Sowders, 449 US 341.)
   OPINION OF THE COURT

Alexander, J.

Wilfredo Rosario appeals by leave of a Judge of this Court from an order of the Appellate Division affirming his conviction of the crime of murder in the second degree. His principal contention on this appeal is that the "fellow officer” rule, which entitles a police officer to rely on a communication from another police officer and to act upon it in making an arrest, does not apply to this auxiliary officer because he is not a "police officer” or a "peace officer.”

We disagree and thus affirm the order of the Appellate Division.

I

As found by the courts below, Erick Hernandez, an auxiliary police officer, while on patrol in Upper Manhattan, received a radio run of a description of a suspect involved in a fatal stabbing nine days earlier who was seen in the vicinity. The suspect was described as a 25- to 30-year-old male Hispanic, 5-feet 8-inches to 5-feet 11-inches tall, with a dark complexion, wearing light blue pants and a black shirt, walking south on Broadway from 177th Street. This description had been received at the precinct through an anonymous telephone call and was virtually identical to one provided to the police by an eyewitness at the scene of the crime shortly after the stabbing. It was relayed to the officers on patrol including the auxiliary police officers.

Shortly thereafter, a Hispanic man approached Hernandez and three other auxiliary officers and informed them that he had seen the suspect. Hernandez concluded that the description of the man spotted by the Hispanic man matched that given in the radio run. He then conveyed this information and its source to uniformed police officers in a radio patrol car. The uniformed police and the auxiliary officers canvassed the area in the patrol car but failed to locate the suspect. The auxiliary officers resumed their foot patrol.

Within a matter of minutes, Hernandez spotted a person, who matched the description and information given to him, walking north on Broadway. As that person walked in the direction of Hernandez and his fellow auxiliary officers, he looked at them, slowly turned around and began walking in the opposite direction. The auxiliary officers followed and Hernandez flagged down another radio patrol car. Sergeant Belton spoke to one of the auxiliary officers and then to Hernandez from the patrol car. Hernandez pointed to the person they were following, described him and informed the sergeant that he was a murder suspect. Sergeant Belton and her fellow police officer pursued the man in the patrol car and quickly overtook him. With guns drawn, they stopped him, frisked and held him. Backup police officers from the first radio patrol car with whom Hernandez had communicated arrived moments later and confirmed Hernandez’s information. The suspect was taken to the 34th precinct station house, where he was interrogated. He made a statement in which he offered an alibi. Thereafter, he was placed in a lineup and identified as the murderer.

At a combined Mapp, Wade and Huntley hearing, defendant sought to suppress jewelry taken from him, the statement made at the station house and the lineup identification, arguing, inter alia, that the evidence was obtained as the result of an unconstitutional seizure, that the statement was involuntary and that the lineup was unreasonably suggestive. The hearing court denied suppression, finding that auxiliary Officer Hernandez, acting as the "eyes and ears of the police * * * had acquired information and made observations which provided probable cause to believe that the defendant had committed a crime.” The court held that when Hernandez directed Belton to apprehend defendant, Belton was justified in doing so. A jury subsequently convicted defendant of murder in the second degree.

The Appellate Division affirmed, concluding that the hearing court’s determination that defendant’s warrantless arrest was based on probable cause was amply supported by the record (162 AD2d 388).

II

A

Defendant argues that the courts below erred in applying the "fellow officer” rule to auxiliary Officer Hernandez because he was not a "police officer” or a "peace officer” and had no authority to make an arrest. Thus, the argument goes, defendant’s arrest, based solely on a communication from Hernandez to Sergeant Belton, was illegal. Moreover, defendant argues, even if we determine that the "fellow officer” rule was properly applied to auxiliary Officer Hernandez, the arrest nevertheless should be deemed illegal because Hernandez lacked probable cause.

This latter argument is without merit and requires no extended discussion. As there is evidence in the record to support the determination of the courts below that there was probable cause for the arrest, that issue is beyond this Court’s further review (see, People v Chipp, 75 NY2d 327, 339, cert denied — US —, 111 S Ct 99 [1990]; People v McRay, 51 NY2d 594).

However, that Hernandez possessed sufficient information upon which to reasonably believe that defendant had committed the alleged homicide does not alone render the arrest legal. The arrest may be upheld if the "fellow officer” rule was properly applied to Hernandez as an auxiliary police officer, such that Sergeant Belton was justified in relying upon Hernandez’s directive in making the arrest. We conclude that the rule is properly applied under the circumstances of this case.

B

The New York City Auxiliary Police program is the largest in the United States, comprising more than 8,000 men and women. These men and women, whose uniforms are similar to police officers, assist the police in crime deterrence by their uniformed presence, serve as a trained group of citizens in case of a civil defense emergency or natural disaster and promote better relations between the community and the New York City Police Department (People v Luciani, 120 Misc 2d 826, 828-829).

Although auxiliary officers perform foot patrol, traffic and crowd control, cover special events and conduct other nonhazardous jobs that a regular police officer would perform in uniform, their primary function is to observe and report ongoing criminal activity. Indeed, the New York City Police Department, which recruits, trains and supervises auxiliary officers has described these officers as being the "eyes and ears” of the police department (id., at 830).

In keeping with their responsibilities as aides to the police department, auxiliary officers are required to undergo an extensive training program. They must complete a 52-hour course which includes instruction in police science, criminal law, self-defense, first aid, police procedure and crowd psychology (id., at 830).

Defendant argues, as does the dissent, that notwithstanding these qualifications and the training and purpose of auxiliary officers, the "fellow officer” rule should not apply because auxiliary officers are not police officers or peace officers. They are not given the extensive and comprehensive training as are police officers and thus, do not qualify for the presumption of reliability accorded under the "fellow officer” rule and therefore, should not be granted the authority to direct an arrest. We disagree and conclude that the "fellow officer” rule is properly applied here because auxiliary Officer Hernandez possessed sufficient training and ability to make the determination that there was probable cause to support defendant’s arrest. Applying the rule to this case is consistent with the underlying rationale of the "fellow officer” rule and furthers the objective of aiding the police in law enforcement.

Under the "fellow officer” rule, "[a] police officer is entitled to act on the strength of a radio bulletin or a telephone or teletype alert from a fellow officer or department and to assume its reliability.” (People v Lypka, 36 NY2d 210, 213.) Officers making arrests based on the transmitted information are justified in doing so because the officer or department furnishing that information presumptively possesses the requisite probable cause which justifies the warrantless arrest. However, where a defendant challenges an arresting officer’s warrantless action, the presumption of probable cause disappears and it becomes incumbent upon the People to establish that the officer or agency imparting the information, in fact possessed the probable cause to act (see, People v Lypka, supra, at 214; see also, Whiteley v Warden, 401 US 560, 568; People v Jennings, 54 NY2d 518, 522; People v Havelka, 45 NY2d 636, 641; People v Horowitz, 21 NY2d 55, 60; see generally, 2 LaFave, Search and Seizure § 3.5 [2d ed]). If the People meet their burden of proof, then the warrantless action may be deemed reasonable and lawful. Thus, an arresting officer is deemed to act with probable cause when making an arrest at the direction of another law enforcement officer who has the requisite probable cause (see, People v Lopez, 95 AD2d 241; see also, People v Horowitz, supra, at 60).

The "fellow officer” rule has been employed in a variety of circumstances and through the use of various modes of communication including telephone, teletype and computer. The rule has been applied whether the communication was between superior or fellow officers within the same department, different agencies or agencies at different levels within a State and between officials in different States as well as between Federal and State or local authorities (2 LaFave, Search and Seizure § 3.5 [b], at 9). The pertinent inquiry in all situations has been directed to the nature and reliability of the informatian possessed by the person or agency transmitting the information. Unless that officer or agency is shown to have possessed probable cause, the warrantless arrest based upon that transmission may not stand.

We recognize that the training of auxiliary officers is not as extensive as that required of police officers. However, the training they receive and the purposes they serve in aiding law enforcement provide sound policy reasons for applying the "fellow officer” rule to auxiliary officers and militate against denying the police the benefit of their aide and assistance as the dissent would. Especially is this so in circumstances as revealed by this record. Indeed, application of the rule here serves the purpose of better enabling law enforcement to do its job but does not unduly jeopardize or impact on the rights of citizens.

This record contains undisturbed findings, amply supported, that auxiliary Officer Hernandez had sufficient information upon which to reasonably believe that defendant had committed the homicide. Thus, he had probable cause to direct defendant’s arrest.

A different result is not required because auxiliary Officer Hernandez is considered a peace officer only under limited circumstances (see, CPL 2.10 [26]; L 1951, ch 784, § 105), and therefore has no power to arrest beyond that of a private citizen. In People v Lypka (36 NY2d 210, supra), lack of authority to conduct a warrantless arrest did not deter this Court from determining that the "fellow officer” rule applied to out-of-State law enforcement officers. Similarly, under the facts of this case, Hernandez’s lack of authority to make a warrantless arrest should not stand as a bar to applying the "fellow officer” rule to him. We have considered defendant’s remaining arguments and conclude that they are without merit.

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

Titone, J.

(dissenting). The auxiliary police force of the City of New York is an adjunct to the police department, and its members may properly act as the "eyes and ears” of that department (see, Public Information Fact Sheet, Auxiliary Forces Section, Police Department of City of New York, quoted in People v Luciani, 120 Misc 2d 826, 830). By holding that auxiliary officers fall within the scope of the "fellow officer rule,” however, the majority has, in effect, conferred on these volunteers the authority to process, evaluate and even draw legal conclusions based on the information they derive from their senses, thereby constituting the auxiliary force, in a sense, the "brain” as well as the eyes and ears of the police department. Since I am not persuaded that these auxiliary officers have either the qualifications or the training to make the complex assessments that go into determining the existence of probable cause, I would rule that police officers may not make arrests based solely on the assertion of an auxiliary officer that probable cause to arrest is present.

Under what has become known as the "fellow officer rule,” a police officer with no firsthand knowledge of the criminality is entitled to make an arrest or take some other action restrictive of a citizen’s liberty where the action is prompted by a report or alert from another police officer (see, United States v Ventresca, 380 US 102). In such instances, the reporting individual’s status as a police officer is deemed a sufficient ground for presuming the underlying reliability of the information conveyed (see, United States v Ventresca, supra; People v Petralia, 62 NY2d 47; People v Lypka, 36 NY2d 210, 213; cf., People v Hicks, 38 NY2d 90 [citizen informant]). This rule is applicable even when the fellow officer’s report conveys only conclusions, such as the conclusion that a particular individual should be arrested, rather than the specific facts from which the conclusions were drawn (see, Whiteley v Warden, 401 US 560; People v Lypka, supra). In such instances, the arrest will be upheld if it is shown at a subsequent Mapp hearing that the information underlying the report was sufficient to constitute probable cause (Whiteley v Warden, supra; People v Havelka, 45 NY2d 636; People v Lypka, supra). The rule is premised on the entirely reasonable judgment that, where a "fellow officer” is concerned, the arresting officer is "entitled to assume” the accuracy of the conclusion that probable cause exists (Whiteley v Warden, supra, at 568; see, People v Lypka, supra, at 213). Whether the same assumption is reasonable when the "fellow officer” is not a professional police officer at all, but rather is a volunteer member of an auxiliary police force, is the question we must determine here.

The majority is satisfied that, despite the differences in training that auxiliary officers and police officers receive, there are "sound policy reasons for applying the 'fellow officer’ rule” to the former (majority opn, at 589). In my view, however, the Court’s acceptance of the "fellow officer” rule in this context accords far too much weight to the goal of "enabling] law enforcement to do its job” and not enough to the countervailing goal of protecting citizens from unfounded or unwarranted intrusions.

Determining whether a given set of observed behaviors and circumstances constitutes probable cause to arrest is a difficult and complex task that has occasionally strained the reasoning powers of even our most learned jurists. Yet, the necessities of law enforcement dictate that we daily entrust that determination to police officers, who have little formal legal training. The societal choice to permit police officers to make street arrests based on their own observations and the accompanying inferences, subject to subsequent judicial oversight, represents a fair compromise between the goal of minimizing erroneous arrests on the one hand and "society’s interest in preventing crime and apprehending criminals” on the other (People v Elwell, 50 NY2d 231, 241).

The compromise is a fair one, in part because the special training and experience that police officers receive, coupled with the exacting requirements for appointment to the position, provide some measure of assurance that most well-trained officers are able to distinguish between facts that rise to the level of probable cause and those which do not, with only a small margin for error. We have often relied, for example, on the special training and experience of police officers in determining the existence of probable cause (see, e.g., People v McRay, 51 NY2d 594, 601; People v Alexander, 37 NY2d 202, 203-204; see also, United States v Ventresca, supra; see generally, 1 LaFave, Search and Seizure § 3.2 [c] [2d ed]). While this factor is most often invoked to tip the balance in favor of probable cause (e.g., People v McRay, supra), it "cuts both ways” and may militate against a probable cause finding when a person with an experienced officer’s "special skills * * * should have recognized that no criminal conduct was involved” (1 LaFave, op. cit., at 571-572). There is simply no basis for inferring that the "special skills” possessed by police officers that enable them to make a fair probable cause assessment in light of the known facts are also possessed by auxiliary police officers.

First, the qualifications needed to become a police officer are far more rigorous than those required of would-be auxiliary officers. Civil Service Law § 58 requires, in most instances, that newly appointed police officers be "not less than twenty nor more than twenty-nine years of age,” "of good moral character”, a holder of a high school diploma or its equivalent, and, in larger municipalities, eligible for appointment from a "list established according to merit and fitness.” Further, police officers must have certain physical attributes, including adequate vision and hearing, which attributes have a direct bearing on their ability to observe and assess unfolding events (Civil Service Law § 58 [1] [c]; 9 NYCRR 6000.3 [d], [e]). In contrast, the only stated requirements for auxiliary officers in New York City are that they be between 17 and 60 years old, "able to read and write English” and "in good health” (Police Department of City of New York, Commanding Officer, Auxiliary Police Section, APS No. 1083 [Sept. 27, 1991]). Those qualifications are hardly sufficient to instill confidence in the ability of auxiliary police to make the fine distinctions involved in making probable cause determinations.

A similar concern may be raised with regard to the training auxiliary officers receive, a factor on which the majority places great weight. In New York City, auxiliary officers are exposed to a 54-hour training course (id.). Packed into that 54-hour period are, undoubtedly, lessons in crowd psychology, traffic control, first aid, dealing with emergencies, basic police procedures, community relations and the rules and regulations governing auxiliaries’ conduct. With so much to learn in such a short time, it is difficult to imagine how these auxiliaries can also acquire a working knowledge of probable cause — a subject that perplexes full-time law students as well as trained practitioners and Judges.

In contrast to the minimal orientation that auxiliary officers receive, the Legislature has mandated that regularly appointed police officers be exposed to an exacting training program (see, General Municipal Law § 209-q), consisting of no less than 445 hours of coursework and covering such topics as the administration of justice and "basic law” (9 NYCRR 6020.3 [a]). In fact, in New York City, the training school for new police recruits currently provides approximately 794 hours of training in a wide variety of areas, including police science and law (Police Department of City of New York, Commanding Officer of Police Academy, Memorandum re: Police Officer Training, DCTr No. 667-91 [Sept. 30, 1991]). The "law” curriculum is designed to provide student officers "with a working knowledge of criminal and procedural law” through the use of workshops, films and even a "moot court” demonstration (id.).

Finally, it cannot be said that the regular duties of auxiliary officers bring them into contact with situations in which a working knowledge of probable cause principles can readily be developed. Originally conceived in the early 1950’s as part of the State’s civil defense program, the auxiliary force has evolved into a body of citizens whose functions include deterring crime by their uniformed presence, promoting better police relations with the community, aiding the police in traffic control, keeping order at special events and performing clerical and other nonhazardous work that would otherwise require the attention of a regularly appointed police officer (People v Luciani, supra, at 828-829). Significantly, auxiliary police officers have no powers to effect arrests beyond those afforded private citizens (CPL 2.10 [26]), and, consequently, they are rarely, if ever, called upon to make probable cause determinations on their own. Moreover, because they do not make arrests, they have no experience in having their judgment tested in the crucible of Mapp hearings, which are another source of on-the-job training for regularly appointed police officers. It is their lack of experience in effecting arrests and appearing in court to defend their conduct that also distinguishes auxiliary officers from out-of-State police officers, as to whom the "fellow officer” rule unquestionably applies (see, People v Lypka, 36 NY2d 210, supra), notwithstanding the latter’s lack of authority to effect arrests in New York (see, majority opn, at 589).

In sum, while auxiliary police officers have many valuable contributions to make in the area of law enforcement, they are simply not sufficiently qualified, experienced or trained to make accurate and reliable judgments about the existence of probable cause. Consequently, the basic assurances that underlie the rule developed in Whiteley v Warden (supra) and People v Lypka (supra), permitting police officers to arrest on the basis of another officer’s probable cause determination, are lacking. Nor are sufficient assurances provided by the availability of postarrest Mapp hearings at which the auxiliary officer’s probable cause conclusion can be tested. As one commentator has observed, relying on after-the-fact judicial review is extremely risky because such reliance could "encourage the general practice of [police officers] making arrests upon unsupported directives [by others],” a practice that "is undesirable because some of these arrests will inevitably be made without anyone having probable cause” (2 LaFave, op. cit., § 3.5 [b], at 5). While that risk may be an acceptable one when the "fellow officer” is a police officer whose training and experience minimizes the danger of inaccuracy (see, id.), the same cannot be said when the "fellow officer” is an auxiliary officer with only the barest of qualifications, experience and training.

In the latter instance, the fairest and most sensible balance between the needs of law enforcement and the rights of individual citizens is best achieved by recognizing auxiliary officers as reliable bearers of specific information indicative of criminality (see, United States v Ventresca, supra), while reserving for police officers the duty to determine, based on experience and training, whether the observed information rises to the level of probable cause. Since the majority’s decision here blurs that important distinction and, in the process, fails to accord sufficient significance to the differences between auxiliary and regularly appointed police officers, I respectfully dissent.

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

Order affirmed.

       The People agreed not to use the statement in connection with their direct case but reserved the right to use it on cross-examination should the defendant testify.


source: Caselaw Access Project

author: Alexander, J.

license: Public Domain

text:
    In the Matter of Juanita Couch, Appellant, v Cesar A. Perales, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued October 16, 1991;
    decided November 26, 1991

      POINTS OF COUNSEL

      Peter Vollmer and Thomas Maligno for appellant.
    I. Federal law and regulation prohibit the reduction of Aid to Families with Dependent Children benefits to needy children to recover parent overpayments unless the needs of the children have also diminished. (Brennin v Perales, 163 AD2d 560; Matter of Sabot v Lavine, 42 NY2d 1068; Matter of Denton v Perales, 72 NY2d 979; Matter of Yablonsky v Perales, 136 AD2d 550; Commissioner v Engle, 464 US 206; Matter of Stevens Med. Arts Bldg. v City of Mount Vernon, 72 AD2d 177; Griffin v Oceanic Contrs., 458 US 564; Matter of Dowling, 219 NY 44; Delaware County Elec. Coop. v Power Auth., 96 AD2d 154, 62 NY2d 877; Greenhaus v American Progressive Health Ins. Co., 33 Misc 2d 280, 18 AD2d 1076.) II. Article XVII, § 1 of the NY Constitution prohibits the reduction of AFDC benefits to needy children to recover parental overpayments absent a reduction in the children’s needs. (Tucker v Toia, 43 NY2d 1; Matter of Flynn v Bates, 67 AD2d 975; Matter of Barie v Lavine, 48 AD2d 36; Matter of Williams v Toia, 61 AD2d 333; Matter of Harrington v Blum, 117 Misc 2d 623.) III. New York Social Services Law § 106-b prohibits the reduction of AFDC benefits to needy children to recover parental overpayments absent a showing of diminished need. (Matter of Lajara v Berger, 47 NY2d 792; Matter of Weiss v Lavine, 50 AD2d 796; Matter of

      Navarro v Blum, 74 AD2d 529; Matter of Santiago v Brezenoff, 82 AD2d 863; Matter of Sabot v Blum, 81 AD2d 673; Matter of Peck v Van Alstyne, 82 AD2d 927; Matter of Reyes v Dumpson, 40 NY2d 725.) IV. Respondents’ violations of 42 USC § 601 and § 602 (a) (22) are cognizable under 42 USC § 1983 and compensable under 42 USC § 1988. (Matter of Johnson v Blum, 58 NY2d 454; Matter of Brennin v Kirby, 79 AD2d 396; Matter of Pinkston v Weinberg, 79 AD2d 1003; Matter of Aviles v D’Elia, 97 AD2d 821; Matter of Bonelli v Blum, 97 AD2d 821; Matter of Cavezza v Blum, 97 AD2d 760; Matter of Lash v Blum, 97 AD2d 515, Matter of Unger v Blum, 99 AD2d 494; Matter of Torres v Perales, 121 AD2d 386; Matter of Porter v D’Elia, 135 AD2d 717.)

      Robert Abrams, Attorney-General (Martha L. Luft, O. Peter Sherwood and Lawrence S. Kahn of counsel), for Cesar A. Perales, respondent.
    The Department’s recoupment of over-payments of AFDC benefits is consistent with the dictates of Federal and State law. (Turner v McMahon, 830 F2d 1003; Tambe v Bowen, 839 F2d 108; Chemical Mfrs. Assn. v Natural Resources Defense Council, 470 US 116; Chevron U.S.A. v Natural Resources Defense Council, 467 US 837; Matter of Howard v Wyman, 28 NY2d 434; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; King v Smith, 392 US 309; Wyman v James, 400 US 309.)

      E. Thomas Boyle, County Attorney (Charles P. Kelly of counsel), for Ruth A. Brandwein, respondent.
    I. This proceeding fails to present a civil rights claim for which attorney’s fees may be awarded. (Matter of Bess v Toia, 66 AD2d 844; Matter of Windbush v Perales, 163 AD2d 480; Matter of Jessup v D’Elia, 69 NY2d 1030; Brennin v Perales, 163 AD2d 560; Matter of Marquart v Perales, 142 AD2d 678; Matter of Eisenhandler v D’Elia, 115 AD2d 477; Matter of Patterson v Blum, 86 AD2d 893; Matter of Gelin v Perales, 149 AD2d 593; Matter of Misuraca v Perales, 120 AD2d 592; Matter of Axelrod v Grinker, 157 AD2d 779.) II. If an award of attorney’s fees is granted, it should be the liability of the State rather than the county. (Matter of Unger v Blum, 117 AD2d 607; Koster v Perales, 903 F2d 131; Matter of Patterson v Blum, 86 AD2d 893; Matter of Beaudoin v Toia, 45 NY2d 343; Matter of Samuels v Berger, 55 AD2d 913; Matter of Bonfanti v Kirby, 54 AD2d 714; Matter of Barbaro v Wyman, 32 AD2d 647.)

      Wayne G. Hawley and John F. Castellano for MFY Legal Services, Inc., amicus curiae.

    I. There is no Federal requirement to recoup an AFDC overpayment from the portion of the grant attributed to needy children in AFDC households. (Matter of Gunn v Blum, 48 NY2d 58; Koster v Webb, 598 F Supp 1134.) II. The court below, in affirming the State’s AFDC recoupment policy contained in 18 NYCRR 352.31 (d), erred, as a matter of law, in not finding that the State’s policy and the regulation upon which it is based, were violative of the State’s "affirmative duty” to aid the needy under article XVII, § 1 of the NY Constitution and sections 106-b and 343 of the Social Services Law and were otherwise inconsistent with Federal law. (Tucker v Toia, 43 NY2d 1; Matter of Lee v Smith, 43 NY2d 453; King v Smith, 392 US 309; Wyman v James, 400 US 309; Matter of Lajara v Berger, 47 NY2d 792; Matter of Campagna v Shaffer, 73 NY2d 237; Matter of Jones v Berman, 37 NY2d 42; Matter of Sabot v Lavine, 42 NY2d 1068.)

      Betsey B. Swan for Statewide Youth Advocacy, Inc., amicus curiae.

    I. The Social Security Act does not permit a State to reduce benefits paid to needy children under the AFDC program for purposes of recouping an overpayment of benefits to their caretaker relative without proof of concurrent reduction of the children’s need for such benefits. (King v Smith, 392 US 309; Wyman v James, 400 US 309; Gunn v Blum, 48 NY2d 58; Gardenia v Norton, 425 F Supp 922; Rush v Smith, 573 F2d 110; Matter of Jessup v D’Elia, 69 NY2d 1030; Brennin v Perales, 163 AD2d 560; Matter of Figliola, 41 NY2d 1072; City of Albany v McNamara, 117 NY 168; Matter of Hogan v Culkin, 18 NY2d 330.) II. Section 106-b of the New York Social Services Law does not permit New York State to reduce benefits paid to needy children under the AFDC program for purposes of recouping an overpayment of benefits to their caretaker relative without proof of the children’s concurrent reduction of the need for such benefits. (Israel-British Bank [London] v Federal Deposit Ins. Corp., 536 F2d 509, 429 US 978; American Airlines v State Commn. for Human Rights, 29 AD2d 178; Matter of Stupack, 274 NY 198; Matter of Marx v Bragalini, 6 NY2d 322; Woollcott v Shubert, 217 NY 212; Pouch v Prudential Ins. Co., 204 NY 281; People v Eulo, 63 NY2d 341; Hammelberger v Foursome Inn Corp., 54 NY2d 580; Matter of Lajara v Berger, 47 NY2d 792; Matter of Navarro v Blum, 74 AD2d 529.)
   OPINION OF THE COURT

Alexander, J.

Petitioner challenges a determination by the respondent, Commissioner of the New York State Department of Social Services, pursuant to which her family’s Aid to Families with Dependent Children (AFDC) grant was temporarily reduced by 10% in order to recoup an overpayment previously made. She contends that 42 USC § 602 (a) (22) and corresponding Federal regulation 45 CFR 233.20 (a) (13), as well as Social Services Law § 106-b and article XVII, § 1 of the NY Constitution, permit the Commissioner to recoup the overpayment only from her pro rata share of the AFDC grant and prohibit recoupment of the overpayment from the entire assistance unit which includes her minor children, unless there has been a prior demonstration that the needs of the children have also diminished. She also claims entitlement to attorney’s fees pursuant to 42 USC § 1988 because the reduction in the family’s AFDC benefits constitutes a violation of 42 USC § 602 (a) (22), cognizable under 42 USC § 1983.

We find nothing in 42 USC § 602 (a) (22), 45 CFR 233.20 (a) (13), Social Services Law § 106-b or in article XVII, § 1 of the NY Constitution which requires that recoupment of an AFDC overpayment only be made from the proportionate share of the individual recipient, rather than from the grant to the family unit. Nor is there any requirement that there must be a prior determination that the needs of the children of a family unit have diminished before such recoupment can be made from the grant to that family unit. Thus, we conclude that petitioner’s challenges should be rejected and there should be an affirmance of the judgment of the Appellate Division.

I

Petitioner and her six minor children receive AFDC benefits totaling $1,087 per month from the Suffolk County Department of Social Services. In January 1988, the county agency, pursuant to 18 NYCRR 352.31 (d) (2), reduced petitioner’s household AFDC grant by 10% in order to recover an emergency utility payment of $336.86 previously made on her behalf to the Long Island Lighting Company to prevent the termination of utility service. Petitioner demanded and received a fair hearing to review the agency’s determination, contending that the imposition of the 10% recoupment rate reduced her grant to a level so inadequate as to cause undue hardship. Respondent concluded, however, that she failed to substantiate her claim of undue hardship and affirmed Suffolk County’s determination to reduce the AFDC grant by 10% until the entire overpayment was recovered.

This CPLR article 78 proceeding ensued. Upon transfer to the Appellate Division (CPLR 7804), that court confirmed respondent’s determination and dismissed the proceeding. We granted petitioner leave to appeal.

II

We briefly review the Federal and State statutes pertaining to AFDC grants in order to place in perspective the issue presented on this appeal. In 1935, Congress enacted the AFDC program as part of the Social Security Act to provide financial assistance to dependent children and their caregivers (42 USC § 601 et seq.). The program, a joint Federal and State undertaking, has as its express primary purpose, the provision of financial assistance to families with needy children. As noted by the Supreme Court in Wyman v James (400 US 309), "[t]he public’s interest in this particular segment of the area of assistance to the unfortunate is protection and aid for the dependent child whose family requires such aid for that child. The focus is on the child and, further, it is on the child who is dependent * * * The dependent child’s needs are paramount” (id., at 318 [emphasis in original]).

When the program was initiated and for many years thereafter, no requirement was imposed upon participating States to recoup any overpayment of benefits made to individuals or family units; rather the decision to recoup overpayments was left to the discretion of the participating State. In 1974, the New York Legislature enacted Social Services Law § 106-b authorizing social services officials to recoup an overpayment by reducing the monthly public assistance grant, but did not make recoupment mandatory.

In 1981, as part of the Omnibus Budget Reconciliation Act (OBRA) (Pub L 97-35), Congress amended the Social Security Act to mandate that States participating in the AFDC program promptly "take all necessary steps” to recoup any overpayment to an individual AFDC recipient by recovering the overpayment from the individual or "by reducing the amount of any future aid payable to the family of which [the individual] is a member” (42 USC § 602 [a] [22] [A]). Recoupment in any one month was limited, however, to not more than 10% of the total AFDC grant payable to the family unit.

Following the enactment of OBRA, the New York State Legislature amended Social Services Law § 106-b to require officials, in accordance with OBRA and corresponding Federal regulations, to "take all necessary steps to correct any overpayment or underpayment to a public assistance recipient” (Social Services Law § 106-b). The Legislature required, however, that regulations and procedures promulgated by the State Social Services Commissioner for correcting any overpayment minimize the adverse impact on the AFDC recipient so as "to the extent possible avoid undue hardship” (id,.).

ra

Petitioner contends that 42 USC § 602 (a) (22) is ambiguous because it is subject to two interpretations — one which permits recoupment by reducing the entire household AFDC grant, including the portion attributable to the children, and the other limiting recoupment to the overpaid individual’s proportionate share. Because the AFDC benefit increases incrementally with family size, the presence of the parent or overpaid individual results in a proportionate increase in the entire family benefit; thus, the State should, in the first instance, recoup the overpayment from that person’s pro rata share, not from the grant to the entire family unit. If recoupment is to be made from the grant to the family unit, however, there must be a prior demonstration that the needs of the children in that family unit have diminished so that the recoupment will not impose any hardship on the children. Requiring the State to recoup an overpayment only from the parent’s or overpaid individual’s pro rata share is consistent with the initial congressional intent in designing the AFDC program — to protect dependent children by assisting the parents or other relatives of these dependent children to attain the capacity for maximum self-support and personal independence, thereby strengthening family life.

We find no ambiguity in the statute and thus have no occasion to resort to an examination of Congress’ intent (see, Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; McKinney’s Cons Laws of NY, Book 1, Statutes §76).

OBRA requires a participating State to take all necessary steps to correct any overpayment (42 USC § 602 [a] [22]). Although a State is given the option to obtain the entire sum from the individual receiving the overpayment or to reduce the amount of aid payable to the family or "assistance unit” at a rate of recovery not exceeding 10% of the monthly grant, nothing in the language of the statute requires a State to recoup the overpayment from the pro rata share of the overpaid individual in the first instance nor is a State required to demonstrate, before recouping the overpayment from the family unit, that the needs of the child or children have diminished.

Petitioner further contends that to construe the provisions of OBRA to not require a prior determination that the needs of her children have diminished before assessing the recoupment against the family unit, in effect, revives the "sins of the parent” doctrine rejected by this Court in Matter of Gunn v Blum (48 NY2d 58) and ignores the "diminished needs” doctrine articulated in that case. This contention likewise, is without merit.

In Matter of Gunn v Blum (48 NY2d 58, supra), we declined to permit the discontinuance or reduction of AFDC grants to dependent children because of their parents’ refusal to comply with Department of Social Services instructions to dispose of their nonessential assets, in the absence of a demonstration of lack of need (id., at 61). Consequently, we held that "without an additional determination of a present lack of need on the part of the children it was error to discontinue assistance to them” (id., at 62).

However, following the enactment of OBRA, in Matter of Jessup v D’Elia (69 NY2d 1030) we considered whether an AFDC grant on behalf of petitioner’s minor son was "properly denied * * * on the ground that petitioner possessed an automobile valued in excess of the statutory and regulatory $1,500 maximum” (id., at 1031). We upheld the Commissioner’s denial of AFDC benefits, rejecting petitioner’s reliance on Gunn. We particularly noted the pertinent statute and regulations then in existence — the very statutory framework found lacking in Gunn — required that the family unit’s combined resources be considered in determining the eligibility of a child within the family (id., at 1031). Thus, we concluded that the holding in Gunn had been superseded by the provisions of OBRA (see, 42 USC § 602 [a] [7] [B]; 45 CFR 233.20 [a] [3]; 18 NYCRR 352.23 [b] [2]).

Petitioner would distinguish our holding in Jessup on the basis that there we considered the petitioner’s eligibility for an AFDC grant on behalf of her son, whereas here, the issue concerns the reduction of an AFDC grant to children who are in fact needy and whose eligibility has already been determined. This distinction is without legal significance and thus, is unavailing. As was noted by the Appellate Division in Brennin v Perales (163 AD2d 560), overruling Matter of Porter v D’Elia (135 AD2d 717), "[i]t makes no logical sense to permit a child’s AFDC grant to be considered as a separate unit in recoupment cases while mandating that the combined resources of the entire assistance unit be considered in eligibility cases” (id., at 562). We agree with this observation by the Brennin court and conclude that recoupment of overpayments may be applied against the AFDC grant to the family unit, including that share attributable to the children in that unit, without the need for a prior determination that their needs have diminished. Nor must the recoupment be applied only to the pro rata share of the individual.

IV

Petitioner’s challenges based on State statutory and constitutional grounds are essentially the same as those made with respect to the Federal legislation and are equally unavailing. We find no violation of either article XVII, § 1 of the NY Constitution or Social Services Law § 106-b. The recoupment method adopted by respondent does not run afoul of the constitutional declaration and mandate that "[t]he aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine” (NY Const, art XVII, § 1). Nor does it violate the provisions of Social Services Law § 106-b which require that in taking "all necessary steps to correct any overpayment or underpayment to a public assistance recipient” the Commissioner must establish procedures for correcting overpayments that are "designed to minimize adverse impact on the recipient, and to the extent possible avoid undue hardship” (Social Services Law § 106-b).

In implementation of the mandate of Social Services Law § 106-b, respondent promulgated a regulation (18 NYCRR 352.31 [d] [2]), which permits a recoupment rate of only 5% in cases where it is established that a 10% rate would produce undue hardship. Petitioner’s argument, that this regulation is inconsistent with the mandate of Social Services Law § 106-b because it does not guarantee that in every case recoupment will "minimize adverse impact” and "avoid undue hardship” since the regulation does not require a prior showing that the needs of the children are diminished, is without merit.

Social Services Law § 106-b does not require respondent to guarantee that there will be no undue hardship in all cases; rather, consistent with 42 USC § 602 (a) (22), it requires that the procedures be designed to minimize adverse impact and to the extent possible avoid undue hardship. This regulation, which permits recoupment from the overpaid assistance unit at a rate of 5% rather than 10%, where undue hardship would otherwise result, is consistent with and appropriately effectuates the statutory requirement to minimize the adverse impact of such recoupment.

Moreover, 18 NYCRR 352.31 (d) (2) imposes on the grant recipient the burden of claiming and substantiating a claim of undue hardship in order to be entitled to an application of the lower recoupment rate. Petitioner was provided an opportunity to establish her undue hardship claim at the fair hearing. Respondent’s determination that she failed to meet her burden was found by the Appellate Division to be supported by substantial evidence in the record. We agree, and thus conclude that Social Services Law § 106-b and 18 NYCRR 352.31 (d) (2) were not violated by respondent imposing a recoupment rate of 10% against the family unit without having first determined that the needs of the children have diminished.

Petitioner’s State constitutional challenge is equally without merit. Her reliance upon this Court’s decision in Tucker v Toia (43 NY2d 1) is misplaced because that case is wholly inapposite. The statute at issue there effectively denied public assistance to children who had met all the criteria developed by the Legislature for determining need, solely on the ground that they had not obtained a final disposition in a support proceeding. We held the statute unconstitutional because it violated the State’s obligation to provide for the needy. Here, there has not been a denial of aid to petitioner and her needy children; rather, only a temporary reduction in that aid has been imposed in order to recover an overpayment as required by applicable Federal and State statutes and regulations. There has been no violation of the State Constitution (see, Matter of Bernstein v Toia, 43 NY2d 437, 449). .

Finally, inasmuch as that there has been no violation of 42 USC § 602 (a) (22), petitioner is not entitled to an award of attorney’s fees pursuant to 42 USC § 1988.

Accordingly, the judgment of the Appellate Division should be affirmed, without costs.

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

Judgment affirmed, without costs.

      . 42 USC § 602 (a), in pertinent part, requires that a State plan for aid and services to families with children must
      "(22) provide that the State agency will promptly take all necessary steps to correct any overpayment or underpayment of aid under the State plan, and, in the case of—
      "(A) an overpayment to an individual who is a current recipient of such aid * * * recovery will be made by repayment by the individual or by reducing the amount of any future aid payable to the family of which he is a member, except that such recovery shall not result in the reduction of aid payable for any month, such that the aid, when added to such family’s liquid resources and to its income * * * is less than 90 percent of the amount payable under the State plan to a family of the same composition with no other income”.

      . Social Services Law § 106-b now provides:
      "Any inconsistent provision of law notwithstanding, a social services official shall, in accordance with the regulations of the department and consistent with federal law and regulations, take all necessary steps to correct any overpayment or underpayment to a public assistance recipient * * * For purposes of this section, overpayment shall include payments made to an eligible person in excess of his needs as defined in this chapter and payments made to ineligible persons (including payments made to such persons pending a fair hearing decision). The commissioner shall promulgate regulations to implement procedures for correcting overpayments and underpayments. The procedures for correcting overpayments shall be designed to minimize adverse impact on the recipient, and to the extent possible avoid undue hardship.”

      . The statutory and regulatory provisions involved in that case were 42 USC § 602 (a) (7) (B), 45 CFR 233.20 (a) (3) and 18 NYCRR 352.23 (b) (2).

      . [1] Our analysis of the provisions of 42 USC § 602 (a) (22) applies equally to the challenged regulation, 45 CFR 233.20 (a) (13), which as petitioner concedes, mirrors the Federal statute.

      . Respondent contends that the State constitutional issue is unpreserved for our review because it was abandoned at the Appellate Division. It is clear, however, that the constitutional claim was properly raised in the trial court and thus, may be considered in this Court (see, Matter of Seitelman v Lavine, 36 NY2d 165, 170, n 2; see also, Cohen and Karger, Powers of the New York Court of Appeals § 161, at 624, n 1).


author: Hancock, Jr., J.

text:
    In the Matter of Long Island Pine Barrens Society, Inc., et al., Appellants, v Planning Board of the Town of Brookhaven et al., Respondents, and Anton Meadows, Inc., Intervenor-Respondent.
    Argued November 13, 1991;
    decided December 18, 1991

      POINTS OF COUNSEL

      Lawrence A. Ceriello for appellants.
    A proceeding which challenges a decision of a planning board granting conditional final subdivision approval on the ground that the planning board violated SEQRA is timely commenced if said proceeding was commenced within 30 days of the date that the decision granting conditional final subdivision approval was filed in the office of the planning board. (Matter of King v Chmielewski, 76 NY2d 182; Matter of Open Space Council v Planning Bd., 152 AD2d 698; Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367, 62 NY2d 965; Matter of Casement v Town of Poughkeepsie Planning Bd., 162 AD2d 685; Matter of Save the Pine Bush v Planning Bd., 83 AD2d 741, 54 NY2d 610; Matter of Yorktown v New York State Dept. of Mental Hygiene, 92 AD2d 897, 59 NY2d 999; Matter of Wing v Coyne, 129 AD2d 213; Matter of Haggerty v Planning Bd., 166 AD2d 791; Matter of Monteiro v Town of Colonie, 158 AD2d 246; Glen Head — Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484.)

      David P. Fishbein, Town Attorney (Garrett W. Swenson, Jr., and Denise F. Molia of counsel), for Planning Board of the Town of Brookhaven, respondent.
    A proceeding challenging a subdivision approval due to an alleged failure to comply with SEQRA must be commenced within 30 days of the filing of the decision granting preliminary approval. (Matter of Town of Yorktown v New York State Dept. of Mental Hygiene, 92 AD2d 897; Matter of Wing v Coyne, 129 AD2d 213; Matter of Edmead v McGuire, 67 NY2d 714; Matter of Walton v Town of Brookhaven, 41 Misc 2d 798; Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Matter of Open Space Council v Planning Bd., 152 AD2d 698; Matter of Lebow v Village of Lansing Planning Bd., 151 AD2d 865; Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367; Matter of Monteiro v

      Town of Colonie, 158 AD2d 246; Matter of Douglaston & Little Neck Coalition v Sexton, 145 AD2d 480.)

      Theodore D. Sklar for intervenor-respondent.
    I. The Society’s failure to commence any proceeding to review the planning board’s SEQRA decisions within 30 days after the filing of the planning board’s determination granting conditional preliminary subdivision approval to Anton Meadows requires dismissal of the petition as it relates to the Anton Meadows subdivision plat. (Matter of King v Chmielewski, 76 NY2d 182; Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367, 62 NY2d 965; Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Matter of Walton v Town of Brookhaven, 41 Misc 2d 798; Matter of Connecticut Riv. Estates v Luchsinger, 52 Misc 2d 620; Matter of Northbury Estates v Long Is. Light. Co., 47 Misc 2d 134; Matter of Barton v Halsey, 67 AD2d 726; Matter of Programming & Sys. v New York State Urban Dev. Corp., 61 NY2d 738; Matter of Tri-County Taxpayers Assn. v Town Bd., 55 NY2d 41; Glen Head—Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484.) II. The Society’s brief misrepresents the holding of and the record in Matter of Open Space Council v Planning Bd. (152 AD2d 698 [2d Dept 1989]).
   OPINION OF THE COURT

Hancock, Jr., J.

Town Law § 276 establishes a two-stage (preliminary and final) subdivision plat approval procedure. Town Law § 282 states that "[a]ny person * * * aggrieved by any decision of the planning board concerning such plat * * * may have the decision [judicially] reviewed * * * provided the proceeding is commenced within thirty days after the filing of the decision”. The question in petitioners’ appeal is whether the time for commencing a proceeding under section 282 begins to run upon the filing of the preliminary plat approval or the final approval decision when the challenge to the plat is solely on environmental grounds and the environmental review procedure is completed prior to the filing of the decision approving the preliminary plat. For reasons to be stated, we hold that under such circumstances, petitioners were required to commence their challenge within 30 days of the filing of the preliminary, not the final, plat approval decision. Accordingly, we affirm the order of the Appellate Division, which affirmed Supreme Court’s dismissal of the petition as untimely.

I

Petitioners challenge the approval of a 202.9-acre subdivision project, known as Anton Meadows, Inc. (Meadows), located in the Town of Brookhaven, New York. In November 1986, intervenor-respondent Meadows filed an application with respondent Planning Board of the Town of Brookhaven (the Board) for preliminary approval of the residential subdivision. In January 1987, the Board, in its capacity as lead agency for the project under the New York State Environmental Quality Review Act (SEQRA) (ECL art 8), issued a positive declaration requiring the preparation of an environmental impact statement (EIS). Meadows filed the EIS and it was accepted by the Board. On May 15, 1989, the Board adopted a SEQRA statement of findings for Meadows certifying that SEQRA’s requirements had been met — the final step of SEQRA review (see, ECL 8-0109 [8]; 6 NYCRR 617.2 [r]; 617.9). The Board granted Meadows conditional preliminary approval on June 5, 1989 and filed its approval decision on June 7. Upon receiving preliminary approval, Meadows prepared a final plat, obligated itself to a $24,200,000 construction loan and entered into contracts of sale for homes in the new subdivision. The Board granted conditional final approval of the project on January 8, 1990, and filed its decision on January 10.

On February 7, 1990, petitioners commenced this CPLR article 78 proceeding — more than 30 days after the Board’s preliminary approval but within 30 days of the final approval —challenging the Board’s approval of several development projects including the Meadows. The petition challenged the approval of the Meadows project solely on the ground that it failed to comply with SEQRA. Supreme Court granted Meadows’ motion to dismiss the petition as untimely. The Appellate Division affirmed, holding that when the Board granted preliminary approval it had completed its environmental review of the project; therefore, any proceeding challenging the environmental review should have been commenced within 30 days of the Board’s filing of its decision giving preliminary approval. This Court granted petitioners leave to appeal.

II

The parties agree that the 30-day Statute of Limitations under Town Law § 282 applies. Petitioners argue that only upon final, not preliminary, plat approval is a planning board’s decision-making process on a proposed subdivision project completed. They emphasize that after granting preliminary approval, a planning board may still disapprove a final plat or conditionally approve it with modifications (Town Law § 276 [4]) and that Brookhaven Town Code § 85-399 (2) provides that "[ajpproval of the preliminary layout does not constitute an approval of the final plat”. Thus, petitioners contend that a proceeding which challenges a decision of a planning board granting conditional final subdivision approval on SEQRA grounds is timely under Town Law § 282 if the proceeding is commenced within 30 days of the filing of that decision. As will be shown, petitioners’ contentions are contrary to the applicable statutory language and, if adopted, would frustrate the purposes of the two-step subdivision approval process and SEQRA (see, ECL 8-0109 [4]).

In deciding whether the Board’s preliminary plat approval, which completed the SEQRA review process, triggered the 30-day Statute of Limitations, we must analyze the pertinent provisions in section 282 in their context with other provisions of Town Law article 16, particularly section 276, establishing the plat approval statutory scheme (see, Ferres v City of New Rochelle, 68 NY2d 446, 451). Approval of a subdivision project under section 276 involves a two-stage procedure in which a planning board must initially approve a preliminary (subd [3]) and then a final (subd [4]) subdivision plat. The preliminary plat approval finally determines important design features of a subdivision and is intended to fix the broad outlines of the proposed development so that both the developer and the town can know the state of the subdivision approval process before additional expenses are incurred incidental to the preparation and approval of detailed final plans (see, Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367, 368, 372, affd 62 NY2d 965).

Approval of the preliminary plat does not guarantee approval of the final version (Town Law § 276 [4]). But, "a planning board may not modify a preliminary plat and then disapprove of the layout of a final plat that conforms to the modifications prescribed by the board” and "absent new information, a subsequent modification or rejection of a preliminarily approved subdivision layout is an arbitrary and capricious act subject to invalidation” (Matter of Sun Beach, 98 AD2d, at 373, supra; see, 5 Ziegler, Rathkopf's The Law of Zoning and Planning § 66.02 [2] [4th ed]; 4 Anderson, American Law of Zoning § 25.13 [3d ed]). The provisions for judicial review of the subdivision approval process in Town Law § 282 state that ”[a]ny person * * * aggrieved by any decision of the planning board concerning such plat * * * may have the decision reviewed” in an article 78 proceeding "provided the proceeding is commenced within thirty days after the filing of the decision in the office of the board” (emphasis added). Section 282 further provides that commencement of the article 78 proceeding "shall stay proceedings upon the decision appealed from” and "shall have preference over all other civil actions and proceedings.”

The question here is: when the sole challenge to the subdivision is based on noncompliance with SEQRA, did the Legislature intend to have section 282 cut off judicial review after 30 days from the filing of the Board’s preliminary approval which both completed SEQRA review and established the general design features of the subdivision? In construing section 282, we examine the language of the 30-day limitation and its purpose as a part of the over-all subdivision approval process (see, Ferres v City of New Rochelle, 68 NY2d 446, 451, supra). Section 282 refers to judicial review of "any decision of the planning board concerning such plat” (emphasis added). Nothing in the section limits judicial review to final plat approvals. Because section 276 requires both preliminary and final subdivision plat approval by the Board, we conclude that the Legislature intended to provide for judicial review of a Board’s decision at the preliminary approval stage where the preliminary approval is final as to a particular issue and, thus, ripe for judicial review by an aggrieved party (see, 5 Ziegler, Rathkopf's The Law of Zoning and Planning § 66.06 [4th ed]; Matter of Walton v Town of Brookhaven, 41 Misc 2d 798, 800 [Sup Ct, Suffolk County]). Such a construction imports to the language of section 282 — that "any decision of the planning board” (emphasis added) may be reviewed — its natural meaning and gives effect to both the preliminary and final plat approval decisions as significant steps in the plat approval process.

Petitioners properly point out that under the approval process in Town Law §§ 276 and 282, the Board’s review of certain aspects of the subdivision would not have been complete until it had issued its final approval. However, the final approval here in no way involved SEQRA review. The only Board decision involving SEQRA was the one giving preliminary plat approval, a decision which, with respect to SEQRA, was in all respects final and aggrieved petitioners who opposed the subdivision on SEQRA grounds. Thus, we conclude that the Board’s filing of the preliminary plat approval was a decision which triggered the 30-day Statute of Limitations of section 282 for challenging the subdivision proposal on SEQRA grounds (see, Matter of Casement v Town of Poughkeepsie Planning Bd., 162 AD2d 685, 687, lv dismissed 76 NY2d 930; Matter of Monteiro v Town of Colonie, 158 AD2d 246, 249-250; Matter of Wing v Coyne, 129 AD2d 213, 217; see also, Matter of King v Chmielewski, 76 NY2d 182, 186). That the Legislature intended that there should be judicial review proceedings under section 282 at intermediate stages in the approval process is evidenced by the legislative concern that such approval decisions receive expeditious review — i.e., its provision that such proceedings be given "preference over all other civil actions and proceedings” (Town Law § 282).

Our construction furthers the evident legislative purpose of establishing a process for orderly and prompt determination of subdivision proposals. Town Law § 276 (2) (a) provides that a preliminary plat must show the layout of the proposed subdivision, including at least the road and lot layout with approximate dimensions, key plan, topography, drainage and all proposed facilities with detailed preliminary plans and profiles. The preliminary plat approval is intended to fix the basic components of the proposed development and, "absent new information, a subsequent modification or rejection of a preliminarily approved subdivision layout is an arbitrary and capricious act subject to invalidation” (Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367, 372-373, affd 62 NY2d 965, supra; see, 5 Ziegler, Rathkopf's The Law of Zoning and Planning § 66.02 [2] [4th ed]; 4 Anderson, American Law of Zoning § 25.13 [3d ed]). Here, the Board took the significant step of accepting the preliminary plat without placing any conditions upon approval of the environmental aspects of the project. Thus, the preliminary approval was final regarding SEQRA issues. To allow a SEQRA challenge to be postponed until final plat approval would leave the environmental status of the entire subdivision project undetermined. This would frustrate the statutory purpose of having an approval at the preliminary stage so that important design questions are finally settled and both the developer and the town are able to rely on there being final approval of significant aspects of the subdivision before the investment of additional time and money (see, Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367, 368, 372, supra).

Moreover, a contrary interpretation — i.e., making the entire project subject to being vacated on SEQRA grounds after the Board’s final plat approval — could have a devastating financial impact when the developer has made a substantial investment and may already be under commitments for financing and other contractual obligations. The construction of section 282 we adopt avoids such unreasonable and potentially unjust consequences (see, Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals, 77 NY2d 114, 124-125; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 141, 143, 146).

Our construction of section 282 as providing for review of SEQRA compliance within 30 days of the preliminary approval also promotes the policy considerations underlying SEQRA. ECL 8-0109 (4) provides that whether an EIS for a proposed action is required must be determined "[a]s early as possible” in the planning process. That section further states that the purpose of an EIS "is to relate environmental considerations to the inception of the planning process, [and] to inform the public and other public agencies as early as possible about proposed actions that may significantly affect the quality of the environment” (ECL 8-0109 [4] [emphasis added]; see also, Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 203). Consistent with these SEQRA policies, we have concluded that the environmental questions pertaining to the Meadows should have been reviewed as early as possible in the planning process — in this case, the preliminary plat approval stage — when it was still practical to modify the project, if necessary, to mitigate adverse environmental effects (see, ECL 8-0109 [4]; Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 203, supra; Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367, 372, affd 62 NY2d 965, supra; Matter of Hickey v Planning Bd., 173 AD2d 1086, 1088).

In sum, when SEQRA review has been completed at the preliminary approval stage, Town Law § 282 and the statutory purposes of the subdivision approval process and SEQRA require that a challenge to the subdivision based on SEQRA grounds not be postponed until after final subdivision approval.

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

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

Order affirmed, with costs.


text:
    The People of the State of New York, Respondent, v Marcia Craig et al., Appellants.
    Argued November 20, 1991;
    decided December 19, 1991

      POINTS OF COUNSEL

      Irene K. Dymkar and Charles R. DiSalvo, of the West Virginia Bar, admitted pro hac vice, for appellants.
    I. The trial court erred in applying a subjective, state-of-mind standard of proof instead of an objective standard of proof to the justification defense. (People v Goetz, 68 NY2d 96; People v Torres, 128 Misc 2d 129; People v Desmond, 93 AD2d 822; People v Miller, 39 NY2d 543; People v Macon, 110 AD2d 718; People v Simmons, 110 AD2d 666; Matter of Fuhrer, 100 Misc 2d 315; People v Cardone, 68 NY2d 829; People v Archer, 143 Misc 2d 390; People v O’Grady, 147 Misc 2d 118.) II. The trial court erred by excluding the testimony of expert defense witnesses. (Jenkins v McKeithen, 395 US 411; Chambers v Mississippi, 410 US 284; Faretta v California, 422 US 806; People v Foy, 32 NY2d 473; People v Singleton, 41 NY2d 402; People v Berry, 62 AD2d 1021; People v Gissendanner, 48 NY2d 543; People v Alvarez, 96 AD2d 786; People v Daly, 98 AD2d 803; People v Gilmore, 66 NY2d 863.) III. The trial court erred by not finding that the People had failed to disprove the choice-of-evils defense. (Matter of Ian D., 109 Misc 2d 18; People v McManus, 67 NY2d 541; People v Steele, 26 NY2d 526.)

      Howard R. Relin, District Attorney (Alan Cruikshank of counsel), for respondent.
    I. Defendants were not, as a matter of law, entitled to a defense of justification. (United States v Bailey, 444 US 394; Northeast Women’s Center v McMonagle, 868 F2d 1342; People v Crowley, 142 Misc 2d 663; People v Archer, 143 Misc 2d 390; People v O’Grady, 147 Misc 2d 118; People v Alderson, 144 Misc 2d 133; People v Chachere, 104 Misc 2d 521; People v Brown, 70 Misc 2d 224; United States v Gant, 691 F2d 1159.) II. If defendants’ defense of justification were to be considered, the trial court applied the correct standard of proof. (People v Goetz, 68 NY2d 96; People v Santiago, 110 AD2d 569; People v Wagman, 99 AD2d 519.) III. Expert witness testimony was properly limited. (People v Cronin, 60 NY2d 430; People v Dorsey, 125 AD2d 586; Selkowitz v County of Nassau, 45 NY2d 97; People v Mooney, 76 NY2d 827; Werner v Sun Oil Co., 65 NY2d 839; People v Van Sickle, 120 AD2d 897, 68 NY2d 760; Anthony v Bradshaw, 282 App Div 851; People v Richardo B., 73 NY2d 228; De Long v County of Erie, 60 NY2d 296.) IV. The People disproved the choice-of-evils defense. (People v McManus, 67 NY2d 541; People v Crowley, 142 Misc 2d 663; People v Chachere, 104 Misc 2d 521; United States v Kroncke, 459 F2d 697; People v Francis, 50 NY2d 987.)
   OPINION OF THE COURT

Hancock, Jr., J.

Defendants were arrested on May 7, 1985 and charged with the violation of trespass (Penal Law § 140.05) when they refused to leave the office of a United States Representative after conducting a peaceful demonstration in which they voiced their opposition to the policy of the United States in imposing an embargo of Nicaragua. In a nonjury trial, Rochester City Court rejected the defense of justification under Penal Law § 35.05 (2), which, under certain circumstances, provides that conduct that would otherwise be illegal may be justified as necessary to avoid a greater evil. County Court affirmed and defendants have appealed to this Court by leave. For reasons which follow, we conclude, as a matter of law, that Penal Law § 35.05 (2), under the facts and circumstances presented, does not afford a basis for the defense of justification. Accordingly, there should be an affirmance.

I

On May 7, 1985, the day after President Reagan issued an Executive Order to implement an embargo on Nicaragua, defendants and other representatives of the Nicaragua Invasion Contingency Action organization (NICA) conducted a demonstration outside the Kenneth B. Keating Federal Building in Rochester. The group went to Congressman Eckert’s office to discuss his views on the embargo, but found that he was in Washington and could not be reached by telephone. After voicing their opposition to the embargo by reading a statement over the telephone to Congressman Eckert’s administrative assistant, they declared that they would occupy his congressional office until they could speak with him personally. Some of the demonstrators began to sing and chant and, according to the People’s testimony, disrupted the work of the office. Upon being assured that their views would be transmitted to Congressman Eckert, part of the group left when asked to do so. Despite several requests that they leave and after repeated warnings that they would be charged with trespass if they did not do so, defendants continued to occupy the office. They were arrested and charged with the violation of trespass.

During the trial all 11 defendants and three other witnesses adduced extensive testimony concerning their knowledge of the situation in Nicaragua, the formation and purposes of NICA and their involvement with that organization, the objective of the demonstration at the Keating Federal Building on May 7, 1985, and the basis for their opposition to the Government’s policies in Nicaragua. In addition, various books, articles, pamphlets, photographs and slides pertaining to the gravity of the situation in Nicaragua were received in evidence. City Court, however, precluded defendants from offering testimony of expert witnesses to substantiate their contentions concerning the imminence and seriousness of the injuries allegedly resulting from the Government’s policies. The court reasoned that Penal Law § 35.05 (2) called for a subjective, state-of-mind standard of proof and that the only relevant question was whether a defendant’s "intent or state of mind was such that it raises itself to the defense of justification”. It, therefore, excluded expert opinions of third parties as irrelevant.

In a written decision, City Court found that the prosecution had disproved the defense of justification beyond a reasonable doubt and had established defendants’ guilt of trespass under Penal Law § 140.05. County Court affirmed in a memorandum, concluding, on its review of the record, that there was sufficient evidence to sustain the court’s findings. On appeal, defendants’ primary argument is that City Court erred in its interpretation of Penal Law § 35.05 (2) as establishing a subjective rather than an objective standard and in its exclusion of defendants’ proffered expert testimony. For reasons to be explained, we agree with defendants that the statutory standard is objective. We conclude, however, that, applying this standard, Penal Law § 35.05 (2) does not provide a defense in the circumstances here.

II

The general notion that conduct which would otherwise be criminal may be justified as necessary to avoid a greater harm, now codified in New York in Penal Law § 35.05 (2), may be traced to cases in the early English common law (see, e.g., Reniger v Fogossa, 1 Plowden 1, 18, 75 Eng Rep 1, 29 [1552]; Mouse’s Case, 12 Co Rep 63, 77 Eng Rep 1341 [1608]; Note, Necessity: The Right to Present a Recognized Defense, 21 New Eng L Rev 779, 780-784 [1985-1986]; Bacon, The Elements of the Common Laws of England, at 25-32 [1636]). In the older English cases, it was a defense to a criminal charge that a defendant committed an act to save a life or to put out a fire. And prisoners might escape from a burning jail without violating the law (see, Arnolds and Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J Crim L & Criminology 289, 291-292 [1974]). In the United States, early Federal cases also recognized the defense of necessity (see, e.g., United States v Ashton, 24 Fed Cas No. 14,470 [CCD Mass 1834] [sailors charged with mutiny justified their refusal to obey captain’s orders on ground that ship was not seaworthy]; Arnolds and Garland, op. cit, at 292). Where the defense was permitted in the common law, the cases generally required the existence of an "impending danger, present, imminent and not to be averted” (Note, Necessity as a Defense, 21 Colum L Rev 71, 72-73; see generally, 1 LaFave and Scott, Substantive Criminal Law § 5.4, at 627-640).

The view that necessity for avoiding a greater evil might afford a justification for prohibited conduct was adopted in 1962 by the American Law Institute in Model Penal Code § 3.02 (reprinted at 10 ULA 477) (Justification Generally: Choice of Evils). Section 3.02 reflects the judgment that a "choice of evils” defense "like the general requirements of culpability, is essential to the rationality and justice of the criminal law, and is appropriately addressed in a penal code” (Model Penal Code and Commentaries, Part I, § 3.02, comment 1, at 9 [1985]). The essential concept of the Model Code provision is that conduct which "the actor believes to be necessary to avoid a harm or evil to himself or to another” is justifiable, provided that "the harm or evil sought to be avoided” is greater than that "sought to be prevented by the law” being broken (§ 3.02 [1] [a]). The provision is not, by its terms, limited to cases involving imminent danger. Nevertheless, the examples given in the commentaries to section 3.02 are of emergency situations involving immediate threat of harm reminiscent of the older common-law cases — e.g., destroying property to prevent spread of a fire, entering a vacant cabin as refuge in a mountain blizzard and using provisions, jettisoning cargo or violating an embargo to save a vessel (see, Model Penal Code and Commentaries, op. cit, at 9-10).

New York’s first recognition of the defense of necessity came in 1965 with the adoption of Penal Law § 35.05 (2) as part of the revised Penal Law (L 1965, ch 1030). Section 35.05, insofar as pertinent, provides that:

"conduct which would otherwise constitute an offense is justifiable and not criminal when * * *
"2. Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.”

Although derived from Model Code § 3.02, section 35.05 (2) is more limited than the Model Code provision and contains restrictive language not found in section 3.02 (e.g., in the requirements that conduct to be justified must be "necessary as an emergency measure to avoid an imminent public or private injury which is about to occur” and that "the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding” the prohibited conduct [emphasis added]; see, Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law art 35, at 90; People v Brown, 68 AD2d 503, 508). The Staff Notes of the Temporary State Commission on Revision of the Penal Law and Criminal Code indicate that section 35.05 (2) was envisioned as providing a defense of justification "in rare and highly unusual circumstances” (Proposed NY Penal Law § 65.00, McKinney’s Cons Laws of NY, 1964 Spec Pamph, at 317). As illustrative of conduct which would be justifiable under the section, the Staff Notes cite, inter alla, the "burning of real property of another in order to prevent a raging forest fire from spreading into a densely populated community” (Donnino, op. cit., at 91).

Section 35.05 (2) differs from the Model Code provision in another significant particular. Unlike the Model Code which contains a standard for justifiability that is partially subjective (i.e., "[c]onduct that the actor believes to be necessary to avoid a harm or evil to himself or to another” [§ 3.02 (1)] [emphasis added]), the New York statutory standard is, by its terms, objective (see, Note, Justification: The Impact of the Model Penal Code on Statutory Reform, 75 Colum L Rev 914, 926-927; 1 LaFave and Scott, op. cit., § 5.4, at 635, n 42; see also, People v Cardone, 68 NY2d 829, 830). There is no reference in section 35.05 (2) to what the actor intends, or believes to be necessary. In this respect, the section is also unlike Penal Law § 35.15 which bases justification for the use of physical force on the actor’s reasonable belief that such force is necessary to defend himself or a third person (§ 35.15 [1]) and for the use of deadly force on the actor’s reasonable belief that the other person is using or about to use deadly physical force (§ 35.15 [2] [a]).

In People v Goetz (68 NY2d 96), we emphasized that the words "reasonably believes” in Penal Law § 35.15 embody in the justification standard for self-defense elements which are subjective (i.e., what the actor believes) as well as objective (i.e., whether a reasonable person could have had these beliefs) (id., at 112-115). From the plain wording of section 35.05 (2) and the omission of any language suggesting that justification was intended to depend on any belief held by the actor, we agree with defendants’ contention that the statute sets forth a standard that is, by its terms, objective only.

III

Section 35.05 (2) specifies that whenever "evidence relating to the defense of justification under this subdivision is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense”. Thus, the court must decide, as a threshold legal question, whether the defense will lie. We turn to whether under the objective standard in section 35.05 (2), the avoidance of the harm resulting from the Government’s actions in Nicaragua, as postulated by the defendants, could be the basis for a justification defense under the statute. Put another way, the question is: does the harm which defendants sought to avoid by conducting a protest in an effort to change governmental policy constitute an "imminent public or private injury” (§ 35.05 [2]) which, as intended by the Legislature, could justify their conduct as a "necessary [preventative] * * * emergency measure”? (Id.)

To ascertain the type of situation envisioned by the Legislature in enacting section 35.05 (2), we, of course, look first to the statute, giving the words their natural and obvious meaning (see, Price v Price, 69 NY2d 8, 15). It is apparent that the language of the statute bears both on the nature of the conduct to be justified and the harm to be avoided. The conduct must be "necessary as an emergency measure to avoid an imminent public or private injury which is about to occur” (§ 35.05 [2]). The requirement that the conduct be "necessary as an emergency measure” to avoid the injury contemplates conduct which is not only warranted by the circumstances as an emergency response but is also reasonably calculated to have an actual effect in preventing the harm. It rules out conduct that is tentative or only advisable or preferable or conduct for which there is a reasonable, legal alternative course of action (see, 1 LaFave and Scott, op. cit., § 5.4 [d] [5], at 638-639; People v O’Grady, 147 Misc 2d 118, 119 [App Term, 2d Dept]; United States v Dorrell, 758 F2d 427, 431, 433-434 [9th Cir 1985]; Andrews v People, 800 P2d 607, 609-610 [Colo 1990]). And the requirement that the impending injury must be "imminent” and "about to occur” denotes an impending harm which constitutes a present, immediate threat — i.e, a danger that is actual and at hand, not one that is speculative, abstract or remote (see, People v Larrabee, 134 AD2d 855, 855-856; People v Brown, 68 AD2d 503, 508-509, supra; People v O’Grady, supra, at 119; see also, Donnino, op. cit., at 90-91; 1 LaFave and Scott, op. cit., at 638-639).

From the foregoing analysis, we conclude that the harm resulting from governmental actions in Nicaragua, as described by defendants, lacks the immediacy required by the statute. Moreover, the actions of defendants in committing a trespass in Congressman Eckert’s office cannot be viewed as an emergency measure reasonably calculated to avoid the harm or as a necessary choice over alternative, legal courses of action designed to effect a change in the policy of the Administration. We conclude that the claimed facts and circumstances offered by defendants would not, if established, constitute a defense under section 35.05 (2).

The conclusion that the statute was not intended to cover the sort of actions pursued in this case by defendants in protest of a governmental policy, we believe, finds support not only in the plain wording of the statute but in the examples of conduct which the drafters of section 35.05 (2) and of Model Code § 3.02 (2) used to illustrate justifiable conduct (see, supra, at 621, 622). The conclusion that a necessity defense does not lie here is also consistent with the common-law cases which typically limit the defense to emergency situations involving an imminent, unavoidable risk (see, supra, at 620; Model Penal Code and Commentaries, op. cit., at 10, n 1; Note, Necessity: The Right to Present a Recognized Defense, op. cit., at 780, 784; Arnolds and Garland, op. cit., at 291-296).

We note that courts in other jurisdictions in cases arising out of protest demonstrations have reached similar conclusions, applying the common law or analogous statutes (see, e.g., Andrews v People, 800 P2d 607, 609-610 [Colo 1990], supra [rejecting "choice of evils defense” where defendants blocked road leading to nuclear weapons plant, under statute virtually identical to New York’s, because conduct was not effective to achieve the purpose or necessary in the face of available legal alternatives and the threatened harm was long-term and speculative, not definite and imminent]; State v Dorsey, 118 NH 844, 395 A2d 855 [1978] [no "competing harms” defense to illegal occupation of nuclear power plant under statute similar to Model Penal Code]; State v Warshow, 138 Vt 22, 410 A2d 1000 [1979] [no defense of necessity under common law to trespass charge at nuclear power plant]; Commonwealth v Capitolo, 508 Pa 372, 498 A2d 806 [1985] [rejecting necessity defense to charge arising out of protest at nuclear power plant under statute similar to Model Penal Code upon ground that harm was not immediate, near at hand and impending]; Gaetano v United States, 406 A2d 1291 [DC App 1979] [no common-law necessity defense to charge arising from protest at clinic performing abortions]; People v Stiso, 93 Ill App 3d 101, 416 NE2d 1209 [1981] [no defense of necessity under statute similar to Model Penal Code for obstructing clinic performing abortions]; People v Garziano, 230 Cal App 3d 241, 281 Cal Rptr 307 [1991] [no common-law defense of necessity for obstructing clinic performing abortions]).

Inasmuch as the claimed facts and circumstances pertaining to the situation in Nicaragua would not, if established, constitute a justification defense, we do not reach defendants’ contention that the court erred in excluding their proffered expert testimony.

The appeal by defendant Hyla Sandgrund should be dismissed upon the ground that the criminal prosecution has abated by reason of defendant’s death (People v Ellis, 71 NY2d 1012; People v Mintz, 20 NY2d 753, 770). On the appeal by the remaining defendants, the order of County Court should be affirmed.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bet.t.a cos a concur.

Appeal by defendant Hyla Sandgrund dismissed, etc.

      . Justification is a defense, not an affirmative defense. If a defendant’s conduct is justified on the ground of necessity or choice of evils under Penal Law § 35.05 (2), it is not unlawful (see, People v McManus, 67 NY2d 541, 545-546). When the defense is raised, the People must prove beyond a reasonable doubt that defendant’s conduct was not justified.

      . The section 3.02 (1) defense does not apply: (1) if the code or other law defining the offense provides exceptions or defenses dealing with the specific situation involved (§ 3.02 [1] [b]) or (2) if a legislative purpose to exclude the justification plainly appears (§ 3.02 [1] [c]).

      . Although the operative standard is objective, it would seem virtually inevitable that a defendant who acted under circumstances which made the defense applicable would have done so with the subjective intention of avoiding the greater evil of the imminent injury. We need not address the hypothetical situation where actual necessity existed but the actor did not have the intention of avoiding the greater evil (see, 1 LaFave and Scott, Substantive Criminal Law § 5.4, at 635). Here, unquestionably, defendants believed that their conduct would in some way avoid the greater evil in Nicaragua. Nor need we address the situation where — under an objective/ reasonable person standard — the action was necessary but necessity-in-fact did not exist (see, op. cit., at 635, n 42).