text:
    In the Matter of Norman Gold-Greenberger, Appellant, v Human Resources Administration of the City of New York et al., Respondents.
    Argued March 26, 1991;
    decided May 7, 1991

      APPEARANCES OF COUNSEL

      Arthur N. Eisenberg for appellant.

      Victor A. Kovner, Corporation Counsel (Jean Brandon and Fay Leoussis of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order should be reversed, without costs, and the proceeding should be remitted to Supreme Court, Kings County, with directions to dismiss the petition, insofar as it sought access to the subject shelter for the purpose of soliciting signatures for a nominating petition, solely upon the ground that the issues as presented in this case are moot.

The Appellate Division ruled that the Human Resources Administration of the City of New York did not violate petitioner’s constitutional rights by declining to permit him to enter a Brooklyn Armory shelter for the homeless to solicit signatures on a petition for his candidacy for a Brooklyn Community School Board seat. We agree with that court that the controversy is moot because the school board election was held two years ago, in May 1989. However, we do not agree that this case qualifies as an exception to the mootness doctrine (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715; see also, Matter of Adirondack League Club v Board of Black Riv. Regulating Dist., 301 NY 219, 223). There is a realistic likelihood that the issues presented here will recur with an adequately developed record and with a timely opportunity for review.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur in memorandum; Judge Titone taking no part.

Order reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Thomas A. Constantine, as Superintendent of the Division of State Police, Respondent, v Mark P. Leto, Appellant.
    Argued March 27, 1991;
    decided May 7, 1991

      APPEARANCES OF COUNSEL

      Peter Gerstenzang for appellant.

      Robert Abrams, Attorney-General (Joseph Koczaja, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.

      Robert M. Morgenthau, District Attorney (Mark Dwyer and Thomas B. Litsky of counsel), amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Thomas E. Mercure at the Appellate Division (157 AD2d 376).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa. Taking no part: Judge Titone.


text:
    The People of the State of New York, Respondent, v Juan J. Sarmiento, Appellant.
    Decided May 7, 1991

      APPEARANCES OF COUNSEL

      Alexandra E. Trinkoff and Ira Mickenberg for appellant.

      Robert T. Johnson, District Attorney (Patrick McCormick of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for the reasons stated in the memorandum of the Appellate Division (168 AD2d 328).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    In the Matter of Ecco III Enterprises, Inc., Respondent, v Metro-North Commuter Railroad Company, Appellant.
    Submitted March 11, 1991;
    decided May 7, 1991
   Motion to dismiss the appeal taken as of right granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that no substantial constitutional question is directly involved. Motion to vacate statutory stay denied.


text:
    In the Matter of Lela L. Harris, Respondent, v Syracuse University, Appellant. Workers’ Compensation Board, Respondent.
    Submitted March 25, 1991;
    decided May 7, 1991
   Motion, insofar as it is taken from that part of the Appellate Division order that affirmed the denial of reconsideration, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied with $100 costs and necessary reproduction disbursements.

Judge Hancock, Jr., taking no part.


text:
    State Division of Human Rights, on Complaint of Marion D. Scipioni, Appellant, v City of Rochester, Respondent.
    Submitted March 11, 1991;
    decided May 7, 1991
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    The People of the State of New York, Respondent, v John Sturkey, Appellant.
    Argued March 22, 1991;
    decided May 9, 1991

      APPEARANCES OF COUNSEL

      Paul Lewis and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Leonard I. Picker and Donald J. Siewert of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed and the case remitted for resentencing.

Defendant has been convicted, after trial, of robbery in the third degree, reckless endangerment in the second degree and criminal possession of a weapon in the third degree. The court sentenced him to consecutive 21/á-to-7-year terms of imprisonment on the robbery and weapons counts and a one-year term on the reckless endangerment count, the sentence to run concurrently with the others. The charges arose when a police officer responded to a call by a woman complaining that defendant was annoying her. The officer proceeded to the woman’s apartment and tried to remove defendant. When he did so, defendant and the officer engaged in a scuffle during which defendant succeeded in seizing the officer’s gun. Defendant waved the gun in the air for what witnesses described variously as two or four seconds and then either dropped it or placed it on the floor and fled.

Because the robbery and possession charges arise from the seizure of the gun, defendant claims that he should not have received consecutive sentences for the two offenses.

Section 70.25 (2) of the Penal Law provides that sentences must run concurrently when two or more offenses are committed through a single act or through an act which itself constituted one of the offenses and also was a material element of the other.

Under the facts of this case, the robbery and possession offenses were committed through the single act of seizing the gun. Thus, defendant was properly convicted of both robbery and criminal possession of a weapon but the sentences for the two offenses must be concurrent under section 70.25 (2) of the Penal Law.

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

Order, insofar as appealed from, reversed, etc.


text:
    Laurie Marie M., Respondent, v Jeffrey T. M., Appellant.
    Decided May 9, 1991

      APPEARANCES OF COUNSEL

      John Jay Gochman for appellant.

      Barry Birbrower, Walter I. Seligsohn and Cathey A. Taft for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for so much of the opinion by Justice Sondra Miller at the Appellate Division (159 AD2d 52) as concluded that the issue of punitive damages was properly submitted to the jury. We further note that the argument with respect to the alleged excessiveness of the jury’s verdict does not present a law question in this case and is thus beyond the province of this Court’s review.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    In the Matter of Village of Hudson Falls et al., Appellants, v New York State Department of Environmental Conservation et al., Respondents, and Counties of Warren and Washington Industrial Development Agency et al., Intervenors-Respondents.
    Argued March 19, 1991;
    decided May 9, 1991

      APPEARANCES OF COUNSEL

      Lewis B. Oliver and Harriet B. Oliver for appellants.

      Robert Abrams, Attorney-General (Francis J. Keehan, O.

      Peter Sherwood, Peter H. Schiff and Douglas H. Ward, of counsel), for respondents.

      Benjamin R. Pratt, Jr., and Jeffrey J. Friedland for intervenors-respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Leonard A. Weiss at the Appellate Division (158 AD2d 24).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    The People of the State of New York, Respondent, v Robert Smith, Appellant.
    Argued January 4, 1991;
    decided May 9, 1991
   Appeal dismissed upon the ground that the criminal prosecution has abated by reason of defendant’s death (People v Coker, 73 NY2d 819; People v Ellis, 71 NY2d 1012; People v Mintz, 20 NY2d 753, 770).


text:
    The People of the State of New York ex rel. Alex Anderson, Appellant, v Warden, Respondent.
    Submitted March 25, 1991;
    decided May 9, 1991
   On the Court’s own motion, appeal, insofar as taken from the order of this Court denying petitioner’s motion for leave to appeal [see, 76 NY2d 707], dismissed upon the ground that no appeal lies to the Court of Appeals (see, CPLR 5601); insofar as taken from the Appellate Division order denying petitioner’s motion for reargument, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; insofar as taken from the Appellate Division order denying petitioner’s application for a writ of habeas corpus, dismissed upon the ground that no appeal as of right lies from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Kenneth E. Bruce, a Suspended Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted April 15, 1991;
    decided May 9, 1991
   Motion to dismiss the appeal granted and the appeal dismissed, without costs, upon the ground that insofar as the appeal is taken from the October 1, 1990 order of the Appellate Division, no substantial constitutional question is directly involved, and insofar as the appeal is taken from the February 13, 1991 order of the Appellate Division, the order does not finally determine the proceeding within the meaning of the Constitution. Motion, insofar as it seeks leave to appeal from the February 13, 1991 order of the Appellate Division, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    Patricia Capolarello, Respondent, v Dominick Capolarello, Defendant and Third-Party Plaintiff-Appellant. Mario Capolarello et al., Third-Party Defendants-Respondents.
    Submitted April 8, 1991;
    decided May 9, 1991
   Motion, insofar as it seeks leave to appeal from the March 8, 1991 order of the Appellate Division, dismissed upon the ground that the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied with $100 costs and necessary reproduction disbursements.


text:
    Joseph P. DiIorio, Appellant-Respondent, v Gibson & Cushman of New York, Inc., et al., Respondents-Appellants. (And Another Related Action.)
    Submitted March 25, 1991;
    decided May 9, 1991
   Motion, insofar as it seeks leave to appeal from that portion of the November 20, 1990 Appellate Division order that affirmed the amended judgment, dismissed upon the ground that plaintiff, having stipulated to reduce the amount of damages to which he is entitled, is not a party aggrieved (see, Dudley v Perkins, 235 NY 448, 457); motion otherwise dismissed upon the ground that that portion of the November 20, 1990 order that affirmed the denial of the motion for resettlement and the February 7, 1991 Appellate Division order do not finally determine the action within the meaning of the Constitution.

Cross motion for leave to appeal from that portion of the November 20, 1990 Appellate Division order that affirmed the denial of the motion for vacatur dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Peter L. Hoffman, Appellant. Lillian Roberts, as Commissioner of Labor, Respondent.
    Submitted April 15, 1991;
    decided May 9, 1991
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of Noel P., a Child Alleged to be Abused.
    Submitted March 18, 1991;
    decided May 9, 1991
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question. Motion for leave to appeal denied.


text:
    In the Matter of Richard R. Scott, Jr., Appellant, v Michael L. D’Amico, as Judge of the Erie County Court, et al., Respondents.
    Submitted March 25, 1991;
    decided May 9, 1991
   Motion for leave to appeal dismissed for mootness. Motion for poor person relief dismissed as academic.


text:
    Sherwood A. Salvan et al., Respondents, v James Lavin et al., Appellants.
    Submitted May 6, 1991;
    decided May 9, 1991
   Motion for a stay dismissed (see, CPLR 5519).


text:
    In the Matter of Michael Tollman, Appellant, v State of New York, Respondent.
    Submitted April 29, 1991;
    decided May 9, 1991
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right.


text:
    Philip J. Sanzone et al., Respondents, v City of Rome et al., Appellants.
    Submitted March 25, 1991;
    decided May 9, 1991
   Motion for leave to appeal dismissed upon the ground that petitioners are not parties aggrieved.


text:
    The People of the State of New York, Respondent, v Angel Claudio, Appellant.
    Submitted April 15, 1991;
    decided May 9, 1991
   Petition for a writ of error coram nobis dismissed. There is no authority for initiating a writ of error coram nobis in the Court of Appeals.

Judge Kaye taking no part.


author: Kaye, J.

text:
    Mary Reed, Respondent, v State of New York, Appellant.
    (Claim No. 71407.)
    Argued March 21, 1991;
    decided May 7, 1991

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Frank K. Walsh, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant.
    I. Examination of the extensive legislative history of Court of Claims Act § 8-b compels the conclusion that the provisions of this statute must be strictly construed. (Fudger v State of New York, 131 AD2d 136, 70 NY2d 616; Berger v City of New York, 260 App Div 402, 285 NY 723; Matter of Rosenthal v Hartnett, 36 NY2d 269; Doctors Council v New York City Employees' Retirement Sys., 71 NY2d 669.) II. Summary judgment on the issue of liability should not have been granted to claimant. (Solomon v State of New York, 146 AD2d 439; Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211; Piccarreto v State of New York, 144 AD2d 920; People ex rel. Matthews v New York State Div. of Parole, 58 NY2d 196; Kalra v Kalra, 149 AD2d 409; Matter of Perry v Blair, 64 AD2d 870; Scales v Maxwell, 52 AD2d 719; Matter of Strizak v Board of Regents, 29 AD2d 1013, 22 NY2d 642; Reilly Constr. Corp. v City of New York, 70 Misc 2d 651, 25 AD2d 953; Brown v City of New York, 80 AD2d 596.) III. The claim should have been dismissed for failure to set forth facts demonstrating that claimant was likely to succeed at trial in proving her innocence by clear and convincing evidence. (Solomon v State of New York, 146 AD2d 439; Moses v State of New York, 137 Misc 2d 1081; Forest v State of New York, 150 AD2d 214; Dozier v State of New York, 134 AD2d 759; Stewart v State of New York, 133 AD2d 112, 72 NY2d 807; Fudger v State of New York, 131 AD2d 136; Lanza v State of New York, 130 AD2d 872.)

      Stephen C. Glosser, Pamela Anagnos Liapakis and Cyrus M. Diamond for respondent.
    I. The State’s belated procedural arguments — addressed to both the sufficiency of the claim and the cross motion for summary judgment — were not raised in the Court of Claims and were not considered by the court below, hence have not been preserved for appellate review in this Court. Were these arguments entertained notwithstanding, they would be discerned to be patently baseless. (Quain v Buzzetta Constr. Corp., 69 NY2d 376; Fudger v State of New York, 131 AD2d 136, 70 NY2d 616; Olan v Farrell Lines, 64 NY2d 1092; Bradt v John Hancock Mut. Life Ins. Co., 98 AD2d 886.) II. The courts below correctly granted claimant’s cross motion for summary judgment where, as here, claimant established her innocence by a clear and convincing evidence standard both as a matter of law and as a matter of fact. (People v McManus, 67 NY2d 541; People v Briggins, 50 NY2d 302; People v Lancaster, 69 NY2d 20; People v Bleakley, 69 NY2d 490; People v Foster, 64 NY2d 1144; People v Santos, 38 NY2d 173; People v Oyola, 6 NY2d 259; People v Wrieden, 299 NY 425; People v Bearden, 290 NY 478; People v Gluck, 188 NY 167.) III. In any event, the State’s interpretation of Court of Claims Act § 8-b violates well-settled principles of statutory construction. (Campbell v State of New York, 186 Misc 586; People v Zimmerman, 10 NY2d 430; Delaware County Elec. Coop. v Power Auth., 96 AD2d 154, 62 NY2d 877; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314.)
   OPINION OF THE COURT

Kaye, J.

In this first appeal to reach us under Court of Claims Act § 8-b, the State seeks to set aside claimant’s damages award for her unjust conviction and imprisonment. Concluding that claimant has failed to satisfy the explicit statutory requirement of clear and convincing proof that she did not commit any of the acts with which she was charged, or that her acts were not crimes, we reverse the award and dismiss the claim.

I.

This case arises from a fatal shooting that occurred in a Mount Vernon bar almost 20 years ago. Claimant was convicted of first degree manslaughter and possession of a weapon as a felony in connection with that shooting, and the Appellate Division affirmed her conviction, without opinion (45 AD2d 934). Upon further appeal, this Court reversed the conviction for legal insufficiency and dismissed the indictment (40 NY2d 204).

As we noted in our decision, the only items of evidence connecting claimant with the shooting were a pocketbook containing a rent receipt in her name found in the bar’s kitchen, and the testimony of a barmaid who was on duty the night of the shooting. The prosecution called the barmaid as a witness, but had her declared hostile after her trial testimony varied from a prior written statement. Ultimately, the prosecution argued that the jury should accept the barmaid’s testimony that claimant had indeed shot the decedent, but reject her testimony that at the time of the shooting the decedent was approaching claimant with an open razor in his hand. The prosecution contended that justification for the killing was contradicted by the fact that a razor was found not in the decedent’s hand but in his pocket wrapped in dollar bills, as well as by the angle of the bullet and a spent shell found near the bar.

The barmaid’s testimony, we concluded, did not amount to proof of claimant’s guilt beyond a reasonable doubt. In reaching that conclusion, we noted that the barmaid’s testimony was partly exculpatory, as it provided a description of circumstances constituting a justification defense. We acknowledged the general rule that a party in a civil action can contradict its witness, but held it "at the very least a questionable situation where a prosecution witness, put upon the stand to testify to the circumstances of a shooting, is contradicted by the prosecutor in almost every facet of her testimony — save one.” (40 NY2d, at 208.) Invoking our power to review the record as a whole to determine whether guilt had been sufficiently established as a matter of law, we concluded that the People, in attempting to disprove the possible justification defense by attacking that portion of the barmaid’s testimony, had failed to prove claimant’s guilt beyond a reasonable doubt. We therefore reversed claimant’s conviction and dismissed the indictment.

At the time of her release, claimant had spent three years and eight months in prison, and been paroled.

Some years later, a bill was passed that would have conferred jurisdiction on the Court of Claims to hear claimant’s claim against the State for damages sustained as a result of erroneous conviction and imprisonment. At the time, individual bills were the only mechanism for bringing such claims. The Governor, however, vetoed the bill, and several like it, on the ground that they represented an ad hoc approach to a recurrent issue, and that there should instead be systematic redress for such cases (1983 NY Legis Ann, at 456). The Governor indicated in his veto message that he had referred the matter for study to the Law Revision Commission. Court of Claims Act § 8-b, effective December 21, 1984, is the product of that study.

Claimant then presented her claim under the statute, and the State sought dismissal. The Court of Claims denied the State’s motion and granted summary judgment for claimant on the issue of liability, reasoning that — since this Court had dismissed the indictment, concluding that there was insufficient proof for a new trial — claimant retained the presumption of innocence and thus had met her burden of proof.

Noting that claimant suffers from amnesia about the shooting, the Appellate Division held that under the "unusual circumstances of this case, as demonstrated by the evidence in the record, and giving due consideration to the various extraordinary factors not caused by the claimant which present difficulties in presenting proof of her claim, we find that the claimant has demonstrated a high probability that she did not commit the acts charged or that her acts did not constitute a crime.” (133 AD2d, at 111.) Following that affirmance, a trial on damages was held, and judgment entered for claimant. We subsequently granted leave, bringing up for review the prior nonfinal order of the Appellate Division, and now reverse.

II.

Under Court of Claims Act § 8-b (2), any person convicted and subsequently imprisoned for one or more felonies or misdemeanors the claimant did not commit may present a claim for damages against the State. In order to "present” her claim, the claimant was required by statute to establish by documentary evidence that she was convicted and served all or any part of the sentence imposed, that her conviction was reversed and the accusatory instrument dismissed, and that her claim was timely (Court of Claims Act § 8-b [3]). The State does not contend that claimant has failed to satisfy any of these preliminary requirements.

To survive the State’s dismissal motion, however, the statute goes on to require that claimant state facts in sufficient detail to permit the court to find that she was likely to succeed at trial in proving either that she did not commit any of the acts charged in the accusatory instrument, or that her acts or omissions did not constitute felonies or misdemeanors, and that she did not by her own conduct cause or bring about her conviction (§ 8-b [4]). This requirement, the State contends, has not been met, in that claimant has failed to establish either that she did not commit the acts charged in the accusatory instrument or that her acts were not crimes. We agree with the State that claimant failed to make the requisite showing to avoid dismissal.

The claim in this case states, without elaboration, that claimant "did not commit any of the acts charged in the aforesaid indictment.” In opposition to the State’s motion and in support of her own cross motion for summary judgment, claimant submitted her attorney’s affirmation asserting that this Court had reversed claimant’s conviction "because the People’s evidence was legally insufficient to sustain the conviction or to disprove the defense of justification,” which was "the functional equivalent of an acquittal and thus tantamount to being found innocent.” The affirmation further stated that if claimant had caused the decedent’s death in self-defense, that act was not a criminal act under Penal Law § 35.10, and it invoked the presumption of innocence.

An acquittal of criminal charges is not equivalent to a finding of innocence. On the contrary, "an acquittal on any basis which does not involve the defendant bearing part of the burden of proof merely stands for the proposition that the People have failed to meet the higher standard of proof required at the criminal proceeding.” (People ex rel. Matthews v New York State Div. of Parole, 58 NY2d 196, 203.) An acquittal may prevent relitigation of issues necessarily resolved in the defendant’s favor at a subsequent criminal proceeding because that higher standard of proof applies at the subsequent proceeding (People v Acevedo, 69 NY2d 478, 484-486; People v Goodman, 69 NY2d 32, 38). However, where the subsequent proceeding is a civil one, involving a lower standard than proof beyond a reasonable doubt, an acquittal is not proof of innocence.

These principles apply regardless of the nature of the subsequent civil proceeding. For example, the alleged victim of an assault may maintain a personal injury action against the defendant even though criminal charges based on the assault have been dismissed (Kalra v Kalra, 149 AD2d 409, 410-411). The outcome of the underlying criminal charges is irrelevant to a forfeiture proceeding, and even acquittal does not necessarily prevent a subsequent civil forfeiture (Matter of Property Clerk v Ferris, 77 NY2d 428; United States v United States Currency, in Amount of $228,536.00, 895 F2d 908, 916, cert denied sub nom. Parker v United States, 495 US 958). Administrative discipline may be imposed although a criminal proceeding arising out of the same incident has been dismissed or there has been an acquittal (Matter of Lynch’s Bldrs. Rest. v O’Connell, 303 NY 408, 410; Matter of Robinson, 70 AD2d 209, 210, n 1, appeal dismissed 49 NY2d 800, cert denied 449 US 830; Matter of Perry v Blair, 64 AD2d 870, 871; Scales v Maxwell, 52 AD2d 719; Matter of Strizak v Board of Regents, 29 AD2d 1013, lv denied 22 NY2d 642). Parole may be revoked even though there has been an acquittal or dismissal of criminal charges (People ex rel. Matthews v New York State Div. of Parole, 58 NY2d, at 202-203, supra; People ex rel. Pickett v Ruffo, 96 AD2d 128, 130-131).

Claimant’s contention that reversal of her conviction is "tantamount to being found innocent” is thus unpersuasive. This Court’s reversal of her conviction established only that the prosecution had failed to prove her guilt of manslaughter and weapon possession beyond a reasonable doubt, nothing more. In particular, the reversal was not dispositive concerning whether claimant could be shown to -have committed the acts charged in the indictment under a standard of proof less exacting than proof beyond a reasonable doubt. The People’s inability to satisfy their burden of proof at the criminal trial is simply not equivalent to the requirement of Court of Claims Act § 8-b (4) that claimant state facts sufficient to support a finding that she is likely to succeed in proving that she did not commit the acts with which she was charged (Piccarreto v State of New York, 144 AD2d 920).

Claimant’s alternative position that the reversal leaves intact her presumption of innocence, and that the presumption is clear and convincing proof of her innocence, is equally untenable. We long ago held that the presumption of innocence is not indulged in a civil action because of the lesser burden of proof (Kurz v Doerr, 180 NY 88, 91-92). The statute on which claimant bases her claim expressly imposes on her the burden of proving innocence by clear and. convincing evidence (Court of Claims Act § 8-b [5]). The presumption of innocence does not apply to this civil proceeding in which claimant bears the burden of proof, and is not a means by which she may satisfy that burden (Fudger v State of New York, 131 AD2d 136, 140).

Nor is the fact that claimant’s indictment was dismissed clear and convincing proof of her innocence. So much is clear from the statute itself. One of the elements a claimant must establish by documentary proof in order simply to present a claim under the statute is that the judgment of conviction was reversed or vacated and the accusatory instrument dismissed, or, if a new trial was ordered, either that there was an acquittal or that there was no retrial and a dismissal of the accusatory instrument (Court of Claims Act § 8-b [3] [b] [ii]). If satisfying this one element itself established the claimant’s right to recover, then the succeeding two sections of the statute — setting forth what the claimant must do to overcome a motion to dismiss and prevail upon the merits — would be superfluous. We will not construe the statute in a way that renders two of its sections superfluous (McKinney’s Cons Laws of NY, Book 1, Statutes § 98; Sanders v Winship, 57 NY2d 391, 396).

Claimant contends that our opinion reversing her conviction held as a matter of law that, even assuming that she shot the decedent, "such a shooting would have been justified since it would have been committed in self-defense — a non-criminal act. ” This is inaccurate.

In reversing claimant’s conviction, we did not hold that she had made out a justification defense. Rather, we held that the main prosecution witness both inculpated claimant and provided a description of circumstances constituting a justification defense (40 NY2d, at 207). We concluded that this discrepancy in the witness’s testimony, combined with the prosecution’s attempt to salvage the situation by attacking only the exculpatory portion of the witness’s testimony, meant that the People failed to establish guilt beyond a reasonable doubt (40 NY2d, at 209). Because we found the People’s proof insufficient, we had no occasion to consider whether a defense was made out, and our decision did not address that question. That the reversal rested on the insufficiency of the People’s proof rather than on any justification defense is established by the reversal of claimant’s conviction for weapon possession; a proven justification defense would not have required reversal of that charge (People v Pons, 68 NY2d 264, 265).

In a related argument, claimant contends that the facts stated in our opinion reversing her conviction make out a justification defense, and that this amounts to clear and convincing evidence of her innocence. Even assuming that the facts stated in our opinion made out a justification defense, those facts still would not demonstrate claimant’s likelihood of proving either that she did not commit any of the acts charged in the indictment, or that her acts did not constitute crimes. One of the criminal acts charged in the indictment was unlawful possession of a weapon, and proof of the justification defense would also establish that criminal act.

Our reading of the plain language of the statute is further buttressed by the legislative history of Court of Claims Act § 8-b, particularly the report of the Law Revision Commission. As the Commission noted, "the mere statement that one’s conviction has been reversed or vacated will not establish a prima facie case. In addition to the fact of reversal or vacating, it will still be necessary to state facts which will establish innocence; failure to do so will result in dismissal of the claim.” (1984 Report of NY Law Rev Commn, 1984 McKinney’s Session Laws of NY, at 2929.) The Commission anticipated that most claims would not survive a motion to dismiss (id., at 2930). It acknowledged that putting the burden of proof on claimant "places one in a difficult position” of proving a negative, but the Commission believed it was appropriate to do so (id., at 2931).

The prior opinions in this case rest upon the impression that, unless claimant can rely upon the reversal of her conviction as a basis for her claim, she will be unable to succeed. In the words of the trial court, "I doubt that any claimant could ever prove innocence by clear and convincing evidence except in the instance where another person confesses to the crime and such confession is accepted by the judicial authorities.” (129 Misc 2d, at 523.) The Appellate Division, as noted above, openly premised its affirmance of the award on the unusual circumstances of the case, especially "the various extraordinary factors not caused by the claimant which present difficulties in presenting proof of her claim” (133 AD2d, at 111).

While we express no opinion as to how future claims might be established, it is clear from the statute and its history that this claim was not established, and indeed that such damages actions were not expected to succeed frequently. The Law Revision Commission noted that a number of other States have similar statutes, but that "there have not been many claims made under these statutes and even fewer recoveries.” (1984 Report of NY Law Rev Commn, 1984 McKinney’s Session Laws of NY, at 2921.) The Commission anticipated that most claims asserted under section 8-b would be dismissed before trial (1984 McKinney’s Session Laws of NY, at 2930).

The task facing a claimant who attempts to assert a damages claim against the State under Court of Claims Act § 8-b is certainly not a simple one. While the Legislature specified that courts should "give due consideration to difficulties of proof caused by the passage of time, the death or unavailability of witnesses, the destruction of evidence or other factors not caused by such persons” (Court of Claims Act § 8-b [1]), it also allocated to claimants the heavy burden of proving their innocence by clear and convincing proof.

As the Governor stated in his approval message, section 8-b represents an attempt to balance the State’s obligation to be fair and just with its "responsibility to assure that it is not overwhelmed with enormous monetary liability and that the Court of Claims and the district attorneys’ offices are not inundated with baseless claims of unjust conviction and imprisonment.” (1984 McKinney’s Session Laws of NY, at 3669.) The decision to place upon claimants the burden of proving their innocence by clear and convincing evidence is an important part of that balance. However sympathetically a court might view a claim (see, Court of Claims Act § 8-b), that statutory requirement cannot be ignored.

Accordingly, the judgment appealed from and the order of the Appellate Division brought up for review should be reversed, without costs, and the claim dismissed.

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

Judgment appealed from and order of the Appellate Division brought up for review reversed, etc.

      . Contrary to claimant’s contention, the State preserved this issue by its motion to dismiss for failure to state a claim.

      . Of interest also is the fact that the Federal statute authorizing compensation for unjust conviction and imprisonment (28 USC § 2513) has been similarly interpreted. That statute requires proof that the claimant "did not commit any of the acts charged” in the form of a certificate of innocence, which the claimant must obtain in a civil proceeding (28 USC § 2513 [a] [2]; [b]; United States v Brunner, 200 F2d 276, 279-280). Reversal of a claimant’s conviction for lack of evidence does not require that a certificate of innocence be issued; rather, the issuing authority must be convinced of the claimant’s innocence (McMurry v United States, 15 MJ 1054; Hall v United States, 4 MJ 603; Forrest v United States, 3 MJ 173).


author: Simons, J.

text:
    In the Matter of Florence Gross, Appellant, v Board of Education of the Elmsford Union Free School District, Respondent, and Alice Moffatt et al., Respondents.
    Argued April 23, 1991;
    decided June 4, 1991

      POINTS OF COUNSEL

      Katherine A. Levine and James R. Sandner for appellant.
    I. The historical and legislative scheme behind the tenure laws and the tenets of statutory construction mandate that a teacher who has been wrongfully terminated under Education Law § 2510 (2) does not have an affirmative duty to mitigate damages. (Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Roschelle v Nyquist, 61 AD2d 1073; Matter of Silver v Board of Educ., 46 AD2d 427; Matter of Sinicropi v Bennett, 92 AD2d 309, 60 NY2d 918; Matter of Hawley v South Orange-town Cent. School Dist., 98 AD2d 749, 67 NY2d 796; Matter of Kohler v Board of Educ., 142 AD2d 676; Matter of McKinney v Board of Educ., 55 AD2d 934; Matter of Amos v Union Free School Dist. No. 9, 47 AD2d 711; Matter of Wolfson v Board of Educ., 47 AD2d 748.) II. Appellant did not fail to mitigate damages by refusing to accept the employment offered by the Board because it was not of a similar or suitable kind. (Whitmarsh v Littlefield, 46 Hun 418; Rudman v Cowles Communications, 30 NY2d 1; Karas v H. R. Labs., 271 App Div 530, 297 NY 494; Marks v Cowden, 226 NY 138; Cornell v T. V. Dev. Corp., 17 NY2d 69; McClelland v Climax Hosiery Mills, 252 NY 347; Proulx v Citibank, 681 F Supp 199; Equal Employment Opportunity Commn. v Kallir, Phillips, Ross, 420 F Supp 919; Gillis v Space, 63 Barb 177.)

      Arnold B. Green and Giacchino J. Russo for Board of Education of Elmsford Union Free School District, respondent.
    I. The duty of a teacher to mitigate under section 2510 (2) of the Education Law derives neither from real property principles nor from contract principles, but rather, springs from a construction of the statute at issue. (Sega v State of New York, 60 NY2d 183; Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Adlerstein v Board of Educ., 64 NY2d 90; Matter of Jerry v Board of Educ., 35 NY2d 534; Matter of Sinicropi v Bennett, 92 AD2d 309; Matter of New York Post v

      Leibowitz, 2 NY2d 677; Matter of Brewer v Board of Educ., 51 NY2d 855.) II. Should this Court choose to decide the issue on appeal based upon common-law rights and duties, the rights and duties of contract law should be applied. (Yris v Comsewogue Union Free School Dist, 63 AD2d 648, 55 NY2d 840; Matter of Golomb v School Dist., 92 AD2d 256; State Div. of Human Rights [Greebel] v New York State Parks & Recreation Commn., 90 AD2d 51.) III. Appellant failed to mitigate her damages by refusing to accept employment offered by respondent. (Williams v Albermarle City Bd. of Educ., 508 F2d 1242; Howard v Daly, 61 NY 362; Bigelow v American Forcite Powder Mfg. Co., 39 Hun 599; Levin v Standard Fashion Co., 16 Daly 404; De Loraz v McDowell, 68 Hun 170, 142 NY 664; Whitmarsh v Littlefield, 46 Hun 418.)

      Jay Worona and Joseph B. Porter for the New York State School Boards Association, Inc., amicus curiae.

    A teacher improperly terminated under section 2510 of the Education Law has an obligation to undertake reasonable steps to mitigate damages during the period of discharge. (Matter of Young v Board of Educ., 35 NY2d 31; Matter of Lezette v Board of Educ., 35 NY2d 272; Matter of Adlerstein v Board of Educ., 64 NY2d 90; Matter of Jerry v Board of Educ., 35 NY2d 534; Matter of Zurlo v Ambach, 75 AD2d 662, 53 NY2d 1035; Matter of Currier v Tompkins-Seneca-Tioga Bd. of Coop. Educ. Servs., 80 AD2d 979.)
   OPINION OF THE COURT

Simons, J.

Petitioner was hired by the Elmsford Union Free School District as a remedial reading teacher in 1969 and received tenure in 1972. The school district abolished her position in 1977 and, after determining that she was the tenured teacher with the least seniority, discharged her in accordance with section 2510 (2) of the Education Law. Petitioner instituted this CPLR article 78 proceeding seeking reinstatement, back pay and benefits. She has successfully obtained a determination that she was wrongfully terminated and an order compelling her reinstatement. The issue before us is whether the court properly reduced the award of back pay to petitioner because she had the opportunity to mitigate damages following her wrongful discharge and failed to do so. At issue is the amount of money petitioner could have earned by taking a job respondent offered her for the spring semester of the 1984-1985 school year.

While the article 78 proceeding was pending, respondent rehired petitioner to fill various positions with the understanding that by taking the positions she was not waiving any of her rights. Thus, in 1980 petitioner was hired for a full-time teaching position which she occupied until June 1982 when the position was abolished and she was discharged once again. In 1983 petitioner accepted a position with respondent as a part-time remedial reading teacher which continued during the fall and spring semesters of the 1983-1984 school year and the fall semester of the 1984-1985 school year. She was offered this same position for the spring semester of the 1984-1985 school year but declined the offer for personal reasons.

In September 1985, Supreme Court granted the petition and ordered petitioner reinstated as a full-time tenured teacher, with back pay and benefits, effective June 24, 1977. The court determined that petitioner should receive the amount of salary provided in the collective bargaining contracts covering petitioner’s teaching position for the period of her wrongful discharge less certain income she had derived from teaching employment. It also held that petitioner had a duty to mitigate damages by accepting respondent’s tender to teach part time in the spring of 1985. Accordingly, it ordered that the award be reduced by the amount of money petitioner would have earned had she not declined that position. The Appellate Division affirmed and we granted petitioner leave to appeal.

School districts must have sufficient latitude within the law to manage their affairs efficiently and effectively (see, Matter of Lezette v Board of Educ., 35 NY2d 272, 278; Matter of Young v Board of Educ., 35 NY2d 31, 34). To this end, the Legislature has recognized that school districts may need to abolish teaching positions for overriding fiscal reasons, even when doing so results in the discharge of tenured employees (see, Education Law § 2510; Steele v Board of Educ., 40 NY2d 456, 462 [addressing Education Law § 2585, the counterpart to § 2510]; Matter of Lezette v Board of Educ., supra, at 278; Matter of Young v Board of Educ., supra, at 34). When a position is abolished "the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued” (Education Law § 2510 [2]). A discharge is justified under the statute if the school district has made a good-faith determination based on economic considerations (see, Matter of Zurlo v Ambach, 53 NY2d 1035, 1037; Matter of Lezette v Board of Educ., 35 NY2d 272, 278, supra; Matter of Young v Board of Educ., 35 NY2d 31, 34, supra).

There is no claim here that the Board acted in bad faith or for improper reasons when it discharged petitioner: the discharge was wrongful only because of the Board’s mistaken assumption that she was the tenured teacher with the least seniority. In these circumstances, it is consistent with the economic purposes underlying the statute to require petitioner to lessen the economic impact of her erroneous discharge by accepting respondents’ reasonable tender of employment. The school must make petitioner whole for its mistake, but she was obliged to take reasonable steps to avoid or minimize her loss.

Petitioner contends that we held otherwise in Matter of Hawley v South Orangetown Cent. School Dist. (67 NY2d 796). Hawley is significantly different from this case, however. It involved section 3020-a of the Education Law, a section which applies to tenured teachers who have been suspended while facing disciplinary charges. The section establishes a set of procedural due process rights for notice and hearing for the protection of teachers before they are discharged for cause. The statutory scheme, and our decisions implementing it, recognize that the teacher, though suspended, continues to be an employee of the school district and as such is entitled to all the benefits of that employment, unless those rights are otherwise limited by statute, because "a tenured teacher’s 'Compensation is a matter of such substantive right * * * that it cannot be taken away’ ” without authorization (Matter of Hawley v South Orangetown Cent. School Dist., 67 NY2d 796, 798, supra; Matter of Jerry v Board of Educ., 35 NY2d 534, 541-542; cf., Matter of Melti v Nyquist, 41 NY2d 183).

Accordingly, we held in Hawley that compensation paid to a tenured teacher during the period of suspension may not be properly characterized as damages to which a common-law duty to mitigate would apply and that a school district could not withhold such compensation by reason of the teacher’s failure to seek other employment. The holding was a natural consequence of the relationship between the parties because a teacher could not be expected or compelled to seek substitute employment while still employed by the school district during the period of suspension.

The situation differs when a teacher has been discharged pursuant to section 2510. Unlike a suspended teacher, an excessed teacher does not continue in the employ of the school district and has no continuing right to the payment of salary. The teacher has a right under section 2510 (3) to be placed on a "preferred eligible list of candidates for appointment to a vacancy”, but that right is limited and based on the happening of an uncertain future event. Thus, excessed teachers must seek alternative employment if they intend to continue working. To impose a similar duty to accept available employment on excessed teachers who are pursuing legal remedies to regain their positions is neither inconsistent with the teachers’ status nor more burdensome than the duty imposed on any other teacher discharged pursuant to section 2510.

There is a further point to be made. In Matter of Jerry v Board of Educ. (35 NY2d 534, supra), we noted that the purpose of the statutory power to suspend teachers under charges of misconduct was to insure the sound administration of our public schools, through the protection of the pupils, the teacher and the public in general until the charges are resolved. That purpose is not advanced by withholding the pay of a suspended teacher pending the outcome of a hearing and thus, we required an explicit statutory authorization before we would recognize the school districts’ power to do so (Matter of Jerry v Board of Educ., supra, at 541-543). However, the purpose behind the legislative grant of power to the school districts to abolish positions and excess teachers, notwithstanding their tenure rights, is economic. Imposition of an obligation on the teacher to undertake reasonable steps to mitigate any financial harm associated with an erroneous discharge is entirely consistent with this purpose; indeed, it is a necessary corollary of the statute’s underlying objective of conserving public funds.

Moreover, even in the case of suspended teachers governed by section 3020-a of the Education Law, we recognized the school district’s authority to compel a suspended teacher to work at an " 'assignment * * * which bears reasonable relationship to the * * * teacher’s competence and training and is consistent with the dignity of the profession’ ” in order to ameliorate "[a]ny seeming detriment to the public fisc,” during the pendency of the hearing (Matter of Hawley v South Orangetown Cent. School Dist., supra, at 798; Matter of Adlerstein v Board of Educ., 64 NY2d 90, 100). If that power exists with respect to teachers still employed by the school district, a fortiori it applies to discharged teachers who seek to be reinstated.

Our holding is also consistent with the Commissioner of Education’s interpretation of section 2510 (see, Matter of Specht, 20 Ed Dept Rep 457, 459). His interpretation should be accorded substantial weight since section 2510 is silent on the question of mitigation and the Commissioner’s construction of it is reasonable (see, Matter of Ward v Nyquist, 43 NY2d 57, 63; Matter of Lezette v Board of Educ., 35 NY2d 272, 281, supra).

Finally, petitioner contends that even if a duty to mitigate is imposed on excessed teachers, the anticipated earnings from the job offered her in January 1985 should not be deducted from her award because the offer of half-time employment at an hourly wage was not of the same or substantially similar character as her full-time position at an annual salary. The position offered was in the same area of teaching in which she had been employed, however, and she had previously accepted it for three semesters. That the position paid a salary less than her 1977 position is of no consequence since the school district remains liable for any difference. Petitioner was free to reject the employment for personal reasons, but she cannot now be heard to say that she is entitled to recover the amount of back pay she would have earned during that time had she accepted it.

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

Chief Judge Wachtler and Judges Kaye, Alexander, Hancock, Jr., and Bellacosa concur; Judge Titone taking no part.

Order affirmed, with costs.


author: Bellacosa, J.

text:
    The People of the State of New York, Respondent, v Derrick Burts, Appellant.
    Argued April 24, 1991;
    decided June 4, 1991
    POINTS OF COUNSEL

      Vincent F. Gugino, Linda S. Reynolds and Barbara Davies Eberl for appellant.
    Where the prosecution closed its evidence without eliciting an independent basis of identification and without hearing court interference, the prosecution should not have been allowed a second opportunity to adduce sufficient evidence of an independent source of identification at a remitted posttrial Wade hearing; reversal with suppression of both in-court identifications was the proper remedy. (People v Crandall, 69 NY2d 459; People v Giles, 73 NY2d 666; People v Dodt, 61 NY2d 408; People v Havelka, 45 NY2d 636; People v Malinsky, 15 NY2d 86; People v Green, 33 NY2d 496; People v Payton, 51 NY2d 169; People v Jackson, 74 NY2d 787; People v Crimmins, 36 NY2d 230.)

      Kevin M. Dillon, District Attorney (Raymond C. Herman and John J. DeFranks of counsel), for respondent.
    The court below properly remitted the case for a hearing to determine whether there was an independent basis for the victims’ in-court identifications. (People v Havelka, 45 NY2d 636; People v Giles, 73 NY2d 666; People v Crandall, 69 NY2d 459, 70 NY2d 748; People v Malinsky, 15 NY2d 86; People v Dodt, 61 NY2d 408; People v Hill, 22 NY2d 686; People v Bradley, 117 AD2d 675; People v Burrows, 53 AD2d 1038; People v James, 111 AD2d 254; People v Moore, 143 AD2d 1056.)
   OPINION OF THE COURT

Bellacosa, J.

Defendant was convicted of highway robbery after a jury trial and the Appellate Division eventually affirmed the judgment. Before affirming, however, it concluded that the police used a suggestive photographic identification procedure to obtain defendant’s identity from the two robbery victims. That ruling is not before us and is not challenged. The only issue before us on a grant of leave to appeal by a Justice of the Appellate Division is whether the Appellate Division took the proper corrective remedy by holding the appeal in abeyance while it remitted for a posttrial Wade hearing to consider evidence of independent source to justify in-court identification testimony.

The Appellate Division explained that the trial court, at the pretrial Wade hearing, had interfered with the People’s opportunity to introduce evidence of any independent source for the victims’ in-court identifications of defendant at trial. At the posttrial hearing, the prosecutor established an independent source to justify the identification testimony at trial. Both lower courts were satisfied in this respect and defendant’s conviction was thereafter upheld by the Appellate Division. We conclude, under these circumstances, that the posttrial hearing procedure was not a proper remedy. There should have been a reversal of the conviction and a remittal for fresh proceedings, including a new Wade hearing and new trial, if so advised. We therefore conclude that the Appellate Division order should be reversed.

Paula Toms and Timothy Young were robbed when their car was stopped at a traffic light on a street in Buffalo. The robber threatened them with a knife, stole Young’s wallet and Toms’ purse, and fled. Toms and Young went to police headquarters to report the incident and described the man to the police. While at headquarters, they jointly viewed a "mug book” and simultaneously selected defendant’s photograph as that of the robber. Defendant’s arrest, indictment and conviction of two counts of first degree robbery ensued.

Defendant made a customary pretrial motion to suppress identification evidence. In response to defense counsel’s attempt to cross-examine Toms at the hearing concerning defendant’s appearance on the day of the robbery, the trial court limited the scope of the hearing to the issue "whether or not the photographic display * * * in any way may have tainted the possible in-court testimony of this witness by action of the police.” No independent source basis for in-court identifications was developed, and the court denied the motion to suppress. While no testimony or evidence was introduced at the jury trial concerning the photo identification, both victims identified defendant at trial, without objection. During deliberations, the jury inquired whether the victims had identified defendant in a lineup or by mug shots. The court instructed the jury to decide the case based solely on the evidence presented during the trial.

On defendant’s appeal from his judgment of conviction, the Appellate Division found that the joint photo identification by the victims at police headquarters was the product of impermissibly suggestive procedures. The Appellate Division then observed that the trial court’s ruling "lulled the People into complacency or otherwise interfered with their opportunity to present evidence” of an independent basis for the victims’ in-court identifications of defendant (156 AD2d 1010, 1011). That rationale became the basis for its decision to hold the defendant’s appeal in abeyance pending a remittal for a posttrial hearing to determine, nunc pro tune, whether an independent source could be supplied to legitimatize the in-court identifications.

At the posttrial hearing, Toms testified that she had a clear view of the robber at close range and that she had given a physical description of the robber to the police. Young was deceased at the time of the hearing, but his trial testimony was admitted at the hearing pursuant to CPL 670.10. After the hearing court concluded that both victims had a "fully adequate opportunity” to view the robber and that their in-court identifications were "untainted by any suggestive pretrial police identification procedure,” the Appellate Division affirmed the held-in-abeyance judgment of conviction.

In a series of search and seizure cases, this Court has held that where suppression court errors cause the People to fail to offer indispensable evidence or remove any incentive or need to do so, the combined remedy of remittal and posttrial corrective opportunity to fill the gap is permissible (see, People v Crandall, 69 NY2d 459, rearg denied 70 NY2d 748; People v Payton, 51 NY2d 169; People v Green, 33 NY2d 496; People v Malinsky, 15 NY2d 86). In striking a balance to insure a fair, full opportunity for the People to establish the admissibility of seized physical evidence, we concluded in the cited cases that abeyance and a posttrial hearing was an acceptable remedy.

Identification evidence, in contrast to physical evidence, is by its nature dynamic and subjective. Thus, it is subject to distinctive constitutional and precedential protections and empirical concerns relating to reliability. Where, as here, in-court eyewitness identification is at the core of the People’s case, we conclude that an appeal cannot be held in abeyance for a posttrial hearing to supply an independent source basis for already admitted in-court identification testimony, in conjunction with a determination that the suppression court’s ruling on the suggestiveness of identification was flawed. While perhaps efficient, such a procedural shortcut does not and cannot adequately remedy the defective procedure leading up to the admission of the still inchoately flawed evidence. The flaw in this instance cannot be retroactively cured because, simply put, the jury heard impermissible in-court identification evidence and the nature of this kind of defect cannot be sanitized after the irretrievable event has occurred. In such circumstances, nothing short of reversal and a new Wade hearing and new trial will suffice.

We have consistently insisted upon the clean break and fresh-start remedy where evidence evolving from a flawed identification procedure was admitted at trial and where no evidence of an independent basis for in-court identifications, developed at the pretrial suppression hearing, would otherwise support the reliability and admissibility of the in-court identification testimony (see, People v Riley, 70 NY2d 523; People v James, 67 NY2d 662; People v Dodt, 61 NY2d 408). In Dodt, for example, we concluded that defendant’s arrest and detention were illegal and that it was therefore error to admit evidence of a lineup identification at trial. We remitted for a new Wade hearing and trial, noting that "[defendant was entitled in advance of trial to a determination by a Trial Judge on the question of independent source.” (People v Dodt, 61 NY2d, supra, at 418.)

Although no evidence of the photo identification itself was admitted at trial in this case, the unresolved and inchoate taint of the concededly improper photo procedure cannot be retroactively cleansed by a posttrial hearing, nunc pro tune, establishing independent source for already admitted and considered trial evidence.

Pretrial resolution of independent source justification for potential trial identification evidence serves diverse interests of both parties to a criminal proceeding. Most importantly, establishing independent source at an early stage, while the witnesses’ recollections are fresh and unaffected by inappropriate influences, advances the reliability of in-court identifications. Practically, too, the testimony adduced at a suppression hearing as to independent source may significantly affect trial strategy. For example, defense counsel’s decision whether to cross-examine a witness at trial — and to what extent — may be affected by the nature of that witness’s testimony at the suppression hearing relating to independent source (see, People v Dodt, supra, at 418).

While the People have no burden to come forward with independent source evidence in every case absent a showing that a pretrial identification procedure is impermissibly suggestive (see, People v Chipp, 75 NY2d 327, 335, cert denied — US —, 111 S Ct 99), the practical import of our holding in the unusual circumstances that eventuated here is clear. If the People do not present evidence of an independent basis for in-court identifications at a pretrial Wade hearing or are precluded from doing so initially by the trial court in its related rulings, and if a related pretrial identification aspect is ultimately found to be suggestive on appeal, then the People’s case is at risk for completely renewed proceedings. We are not unmindful that potentially academic pretrial independent source excursions may add burdens to limited judicial and prosecutorial resources; however, in circumstances such as are presented here, "[procedural preference or efficiency may not justify any less protection to the integrity of the process and to the particular defendant’s rights.” (People v Riley, 70 NY2d, supra, at 531.)

Accordingly, the order of the Appellate Division should be reversed and the case remitted to Erie County Court for further proceedings in accordance with this opinion.

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

Order reversed and case remitted to Erie County Court for further proceedings in accordance with the opinion herein.


author: Chief Judge Wachtler.

text:
    The People of the State of New York, Appellant, v Jerome Bonaparte, Respondent.
    Argued April 30, 1991;
    decided June 6, 1991

      POINTS OF COUNSEL

      Charles J. Hynes, District Attorney (Jodi L. Mandel, Jay M. Cohen and Peter A. Weinstein of counsel), for appellant.
    The court officer’s communication with the jury regarding a purely ministerial matter neither constituted an unlawful delegation of the court’s authority nor violated defendant’s right to be present at trial. (People v Ahmed, 66 NY2d 307; People v Torres, 72 NY2d 1007; People v Payne, 149 AD2d 542; People v Pagan, 45 NY2d 725; Allen v United States, 164 US 492, People v Ciaccio, 47 NY2d 431; People v Demming, 116 AD2d 886, 67 NY2d 941; People v Morman, 137 AD2d 838, 71 NY2d 900; People v Harris, 76 NY2d 810; Snyder v Massachusetts, 291 US 97.)

      Winston McIntosh and Philip L. Weinstein for respondent.
    The court below correctly decided that the trial court violated respondent’s right to a proper trial by jury and his right to be present during a critical stage of his trial when it directed a court officer to inform the deliberating jurors of its decision to have them sequestered, and instruct them to cease deliberations, which instruction was delivered without notice to respondent or counsel, and outside their presence. (People v Torres, 72 NY2d 1007; People v Ahmed, 66 NY2d 307; People v Parisi, 276 NY 97; Fogel v Lenox Hill Hosp., 127 AD2d 548; People v Ciaccio, 47 NY2d 431; Shields v United States, 273 US 583; People v Mehmedi, 69 NY2d 759; People v Hernandez, 157 AD2d 472; People v Jones, 159 AD2d 644; People v Cooper, 158 AD2d 465.)
   OPINION OF THE COURT

Chief Judge Wachtler.

Defendant was convicted, after a jury trial, of two counts of murder in the second degree (Penal Law § 125.25 [1], [3]). The Appellate Division reversed the judgment of conviction and ordered a new trial, holding that the trial court had improperly delegated a judicial function to a court officer when, during jury deliberations, the court directed the court officer to inform the jurors that they were going to be sequestered for the evening and to take them to dinner and a hotel. The jurors were thus sequestered without being instructed by the court that they should not discuss the case among themselves or with anybody else during the recess.

While we do not approve of this procedure, on this record the court’s failure to so instruct the jurors does not require a new trial. Accordingly, we reverse the order of the Appellate Division and reinstate the judgment of conviction.

The charges against defendant stemmed from the beating and strangulation death of a 61-year-old man, an acquaintance of defendant and his sister. The trial lasted approximately a week and a half. The court’s charge was delivered on a Monday morning, following a weekend recess, and the jury retired to deliberate at 11:20 a.m. that day. That afternoon, pursuant to the jury’s request, the court repeated its instructions concerning the definition of the charges. Deliberations resumed at 3:40 p.m. The jury was sequestered sometime after 5:00 p.m., and they reached a verdict a half hour after resuming deliberations the following morning.

When the court reconvened to receive the verdict, defendant’s attorney expressed his concern that, because the jury had deliberated such a short time that morning, the verdict may have been the product of unauthorized deliberations during the sequestration period. Defense counsel acknowledged that he had been informed that the jury was "just going to be sent out”, but now protested that the court should have instructed the jury to stop deliberations before sequestration. The court explained that its practice was to sequester the jury without such an instruction, because

"when a Judge makes a decision to sequester a jury for the evening, the decision has been made, the jury has worked hard enough for the day, and they should no longer have to stay around the courthouse. They should then be taken to dinner and relax, as far as I’m concerned, as soon as possible. If I have to call the lawyers — I would not communicate, obviously, to the jurors anything without the lawyers being present. I would have to reach out for the attorneys, who knows where they are * * *. The defendant would have to be brought up. I would say — it would be fair to say it would occasion a delay of at least from fifteen minutes to another half an hour just to tell the jury good night and stop deliberating.”

The court asked the court officer to state on the record what he said to the jurors prior to their sequestration. The court officer stated that he told the jurors to "cease all deliberations” and that they were going to be taken to dinner and sequestered for the evening. Upon further questioning from the court, the court officer stated that the jurors had not discussed the case during dinner or breakfast and that the rest of the time was spent in pairs or individually in their hotel rooms, with no opportunity for joint deliberations. The court officer also noted that all jury supplies — verdict sheets, paper, etc. — had been secured in the courtroom before the jury left for the evening.

Based on this information, the court found no indication that the jury had deliberated during the sequestration period. The court noted that the jurors’ request for clarification of the definition of the various charges shortly before their sequestration indicated to him, based on his experience, that the jury was close to a verdict at that time. Thus, he did not consider it unusual or indicative of improper overnight deliberations that the jury had reached a verdict so quickly the next morning. The court concluded, "So that’s the Court’s reaction to it. I don’t think you made any kind of motion. I don’t know what I am supposed to do at this point, other than to say that’s my reaction to it.” Defendant’s attorney said nothing further. The court thereupon called in the jury, which rendered its verdict finding defendant guilty of intentional murder and felony murder.

On defendant’s appeal, the Appellate Division determined first that the verdict was supported by legally sufficient evidence and that it was in accord with the weight of the evidence. The Appellate Division reversed the judgment of conviction and ordered a new trial, however, "because the court improperly delegated a judicial function to a court officer and because, in so doing, it abridged the defendant’s right to be present during a critical stage of his jury trial” (People v Bonaparte, 161 AD2d 774).

It is true, of course, that a defendant has the right to be present during all critical stages of a trial and that this includes the right to be present when the jury is given instructions or information by the court (see, Snyder v Massachusetts, 291 US 97, 105-106; People v Harris, 76 NY2d 810, 812; People v Mehmedi, 69 NY2d 759; see also, CPL 310.30). Equally true is that the court may not delegate to a nonjudicial staff member its authority to instruct the jury on matters affecting their deliberations (People v Torres, 72 NY2d 1007; People v Ahmed, 66 NY2d 307).

Nevertheless, not every communication with a deliberating jury requires the participation of the court or the presence of the defendant. For example, in People v Harris (supra), we held that the court could seek clarification of a readback request from the jury without the defendant’s presence, and in People v Ciaccio (47 NY2d 431, 437), we noted that a court officer could perform the ministerial task of inquiring whether the jury had reached a verdict. Even the dissent in Harris acknowledged that the defendant’s presence was not required for communications with the jury about "the logistics of the deliberative process, such as the timing of the jury’s eating break” (People v Harris, supra, at 813, n [Titone, J., dissenting]).

Indeed, the supervisory role of the court officer with respect to a deliberating jury will often require the officer to speak to the jurors about a variety of ministerial matters, as the statute conferring such supervisory authority acknowledges (see, CPL 310.10 [court officer may not speak to jurors "(except when so authorized by the court or when performing administerial duties with respect to the jurors”]). Ministerial duties may include, by way of example, determining who to contact to secure whatever personal belongings the jurors might need for an overnight stay or enforcing the court’s instructions not to discuss the case among themselves or others during periods of sequestration.

In this case, the record indicates that the court officer, at the court’s direction, simply told the jurors that they should stop deliberating because they were going to be taken to dinner and sequestered for the evening. That communication fell within the scope of the court officer’s authority to speak to the jurors in connection with his "administerial duties” (CPL 310.10). The court officer did not attempt to convey any legal instructions to the jury or to instruct them as to their duties and obligations upon sequestration or otherwise. This case is therefore easily distinguished from People v Torres (supra), where the court officer told a deadlocked jury to continue to deliberate, in effect delivering an Allen charge (see, Allen v United States, 164 US 492), a particularly sensitive matter. Similarly distinguishable is People v Ahmed (66 NY2d 307, supra), where, in the Judge’s absence, a law secretary responded to questions from the jury concerning issues in the case. Here, the court officer did not deliver any instructions to the jury concerning the mode or subject of their deliberations. Consequently, there was no improper delegation of judicial authority and the defendant’s presence was not required when the court officer spoke to the jury.

In fact, defendant’s concern after the verdict was reached was not that the court officer had improperly instructed the jury about their duties and obligations during sequestration, but rather that no one, including the court, had given the jury such instructions and that, therefore, the jury may have deliberated during the sequestration period.

The emphasis of defendant’s complaint was on the possibility of jury impropriety, but the court’s inquiries and the court officer’s responses apparently satisfied defendant in this regard. After the court expressed its own conclusion that no improper deliberations occurred, the court noted that defendant had made no motion and stated, "I don’t know what I am supposed to do at this point other than to say that’s my reaction to it.” Despite this opportunity, defense counsel said nothing, thus never indicating to the court what further measures, if any, he thought might be appropriate.

To the extent that defendant’s protest can be construed as an objection to the court’s failure to give sequestration instructions to the jury, an issue not addressed by the Appellate Division, we conclude that this claim was not preserved for our review because, by the time the protest was made, it was too late for the court to cure the error. Nor does this record establish that defendant had no earlier opportunity to raise the claim. Although the Appellate Division stated in its recitation of the facts that "[d]efense counsel protested the failure to notify him the previous evening when the jury was to be sequestered” (161 AD2d, at 774), the record reveals no such protest. To the contrary, defense counsel acknowledged that he "was told they were just going to be sent out,” suggesting that defense counsel knew that the jury was going to be sequestered without reconvening for formal instructions from the court, which would have required his and the defendant’s presence. At a minimum, it is far from clear that defense counsel first learned of the sequestration the following day and, indeed, it would be surprising if this were true.

Thus, inasmuch as defendant made no request of the court to provide sequestration instructions to the jury at a time when the omission could have been cured, and the record does not support a claim that he was deprived of any opportunity to do so, the court’s failure to provide the instruction presents no issue of law for our review. That is not to say that we approve of the trial court’s procedure in this case. The better practice, and the one that should be followed in the future, would be for the court, in the presence of the defendant and his counsel, to notify the jurors that they are going to be sequestered for the evening and to instruct them as to their duties and obligations during this period, including their duty to refrain from discussing the case among themselves or with others. On this record, however, the failure of the court to do so does not require a new trial.

Accordingly, the order of the Appellate Division should be reversed, and the judgment of Supreme Court, Kings County, reinstated.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.

       Unlike the arguments considered above concerning the defendant’s right to be present at critical stages of the trial and the delegation of judicial authority, both of which implicate "the organization of the court or the mode of proceedings prescribed by law” and present reviewable questions of law even in the absence of a timely objection (People v Mehmedi, 69 NY2d 759, 760; People v Ahmed, 66 NY2d 307, 310), a claim concerning the court’s failure to give an instruction must be preserved by a timely objection or request to charge (see, CPL 470.05 [2]; People v Creech, 60 NY2d 895 [failure to charge presumption of innocence not preserved in the absence of an objection or request to charge]; People v Johnson, 61 NY2d 656 [same]; see also, People v Brown, 66 NY2d 997).


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    In the Matter of Board of Education of the Arlington Central School District, Respondent, v Arlington Teachers Association, Appellant.
    Argued April 23, 1991;
    decided June 6, 1991

      POINTS OF COUNSEL

      Mary E. Scalise and Bernard F. Ashe for appellant.
    I. The court below erred when it held that the arbitrator had exceeded his authority. (Matter of Associated Teachers v Board of Educ., 33 NY2d 229; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578; North Syracuse Cent. School Dist. v North Syracuse Educ. Assn., 45 NY2d 195; Matter of North Colonie Cent. School Dist. [North Colonie Teachers’ Assn.], 60 AD2d 496, 46 NY2d 965; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Honeoye Falls-Lima Cent. School Dist. v Honeoye Falls-Lima Educ. Assn., 49 NY2d 732; Matter of Three Vil. Teachers’ Assn. v Three Vil. Cent. School Dist., 128 AD2d 626; Matter of Board of Educ. v Yonkers Fedn. of Teachers, 129 AD2d 702; Matter of Dutchess County Bd. of Coop. Educ. Servs. v Newman, 122 AD2d 845.) II. Neither the Sweet Home doctrine nor Education Law § 1711 (6) prohibits confirmation of the arbitration award. (Matter of Sweet Home Cent. School Dist. v Sweet Home Educ. Assn., 58 NY2d 912; Matter of Enlarged City School Dist. [Troy Teachers Assn.] 69 NY2d 905.)

      David S. Shaw and Julie R. Seitz for respondent.
    I. The order of the court below should be affirmed because there are grounds upon which to grant vacatur. (Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578; Matter of Town of Callicoon [Civil Serv. Employees Assn.], 70 NY2d 907; Dutchess County Bd. of Coop. Educ. Servs. v Dutchess County Bd. of Coop. Servs. Faculty Assn., 111 AD2d 903; Matter of Sweet Home School Dist. v Sweet Home Educ. Assn., 90 AD2d 683, 58 NY2d 912; Honeoye Falls-Lima Cent. School Dist. v Honeoye Falls-Lima Educ. Assn., 49 NY2d 732; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Candor Cent. School Dist. [Candor Teachers Assn.] 42 NY2d 266; Matter of Silverman [Benmor Coats], 61 NY2d 299; Matter of Board of Educ. v Dover-Wingdale Teachers’ Assn., 61 NY2d 913; Matter of Local Div. 1179 [Green Bus Lines], 50 NY2d 1007.) II. The arbitrator’s award adversely impacted and violated strong public policy, thus mandating the vacatur of the award. (Matter of Board of Educ. v Yonkers Fedn. of Teachers, 129 AD2d 702; Board of Educ. v Yonkers Fedn. of Teachers, 46 NY2d 727; Matter of Three Vil. Teachers’ Assn. v Three Vil. Cent. School Dist, 128 AD2d 626; Matter of Union Free School Dist. No. 2 v Nyquist, 38 NY2d 137; Matter of Board of Educ. v Yonkers Fedn. of Teachers, 154 AD2d 210.) III. The arbitrator issued the award in excess of contractual arbitral powers, thus mandating the vacatur of the award. (Matter of Town of Callicoon [Civil Serv. Employees Assn.], 70 NY2d 907.)

      Jay Worona and Shari Greenleaf for the New York State School Boards Association, Inc., amicus curiae.

    Collective bargaining agreements may not provide for the delegation of a board of education’s absolute power to determine teacher assignments. (Matter of Sweet Home School Dist. v Sweet Home Educ. Assn., 90 AD2d 683, 58 NY2d 912; Matter of Town of Callicoon [Civil Serv. Employees Assn.], 70 NY2d 907; Board of Educ. v Yonkers Fedn. of Teachers, 46 NY2d 727; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Riverhead Cent. School Dist. v Riverhead Cent. Faculty Assn., 140 AD2d 526; Matter of Board of Educ. v Yonkers Fedn. of Teachers, 129 AD2d 702; Matter of Three Vil. Teachers’ Assn. v Three Vil. Cent. School Dist., 128 AD2d 626; Matter of Monroe-Woodbury Cent. School Dist. v Monroe-Woodbury Teachers Assn., 105 AD2d 786; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167.)
   OPINION OF THE COURT

Kaye, J.

Can an arbitrator who concludes that a collective bargaining agreement has been violated by a school district’s involuntary reassignment of two teachers, order that the violation be remedied by requiring the district to offer the teachers their original positions? In the circumstances presented, we conclude that the arbitrator had the authority to order that relief.

Eileen Weber and Cheryl Gallagher hold appointments in the special education tenure area, and are certified to teach any special education class in the State. During the 1986-1987 school year, Weber taught one section of primary language at the LaGrange Elementary School, in the Arlington Central School District; her students were at kindergarten and first grade level. During that same year, Gallagher taught one section of elementary language at LaGrange; her students were at the first and second grade level.

For the 1987-1988 school year — the year in issue — Weber was assigned to teach Level II language, which meant that she was teaching second and third grade level students. Gallagher was assigned to teach intermediate skills development; her pupils were at the third and fourth grade level, and the emphasis was on skills, rather than language, development. Both assignments required new classroom preparation.

The Teachers Association viewed these assignments as violative of the collective bargaining agreement, particularly article VIII, section K, which "recognized that some involuntary transfers of teachers from one building to another or reassignment within a tenure area may be unavoidable,” but stated that such actions "should be held to a minimum.” The section required that notice of involuntary transfers be given "as soon as practicable,” and that the district make good-faith efforts to find volunteers before involuntary reassignments. The Association contended that the transfers of Weber and Gallagher violated this provision because they were not unavoidable.

A grievance filed on behalf of the teachers was submitted to arbitration. After hearing the parties, the arbitrator concluded that there was a sufficient difference between the teachers’ duties for the 1986-1987 school year and their duties for the 1987-1988 school year to conclude that they had been reassigned in violation of the agreement, and he awarded the remedy sought by the Association: that the district offer the teachers the positions they had held during 1986-1987, provided those positions still existed during the 1988-1989 school year.

In seeking to vacate the arbitrator’s award the district contended that the arbitrator had exceeded his power because the remedy he awarded contravened the nondelegable duty of the board of education and the superintendent of schools to assess qualifications and assign teachers to positions within their tenure area. Supreme Court agreed that the award was beyond the arbitrator’s authority, and the Appellate Division affirmed. The Appellate Division held that Education Law § 1711 (6), enacted in response to Matter of Sweet Home Cent. School Dist. v Sweet Home Educ. Assn. (58 NY2d 912), allowed a school superintendent’s authority with respect to transfer decisions to be modified by a collective bargaining agreement, but that the statute was not intended to affect the school district’s power to transfer and reassign teachers. We granted leave, and now reverse.

We begin by emphasizing that the issue before us is a narrow one — whether the arbitrator had the power in the circumstances presented to order the reassignment. The district does not contest the finding of violation, or the validity of the collective bargaining agreement. Moreover, this case does not involve any attempt by the arbitrator to place unqualified individuals in teaching positions, or to create new positions. Weber and Gallagher are certified to teach any special education class and had previously held the positions to which the arbitrator returned them; and the arbitrator expressly conditioned his reassignment on the existence of the positions during the 1988-1989 school year.

An arbitration award may not be vacated unless it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power (CPLR 7511 [b] [1]; Matter of Town of Callicoon [Civil Serv. Employees Assn.], 70 NY2d 907, 909). The district contends that the award here violates a strong public policy giving the board of education nondelegable authority to determine teachers’ qualifications and assignments. We disagree.

Prior to 1983, several decisions of this Court made clear that school boards would not be permitted to surrender through collective bargaining their responsibilities for maintaining adequate classroom standards (Honeoye Falls-Lima Cent. School Dist. v Honeoye Falls-Lima Educ. Assn., 49 NY2d 732, 734; Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266, 271; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 777-778). In 1983, in Matter of Sweet Home Cent. School Dist. v Sweet Home Educ. Assn. (58 NY2d 912, affg on opn at 90 AD2d 683, supra), we held that an arbitration award allowing an involuntarily transferred teacher to resume his previous position exceeded the arbitrator’s power because Education Law § 1711 (5) (e) imposed upon the school superintendent, subject to the approval of the board of education, nondelegable authority to assign and reassign teachers in order to maintain adequate classroom standards.

The Legislature responded to Sweet Home by enacting Laws of 1986 (ch 843). That legislation modified Education Law § 1711 (5) (e) — setting forth the power of a superintendent of schools in a union free school district to transfer teachers subject to the board’s approval — by adding a new subdivision (6), as follows: "Notwithstanding any inconsistent provision of law, the provisions of paragraph e of subdivision five of this section relating to the transfer of teachers may be modified by an agreement that is collectively negotiated pursuant to the provisions of article fourteen of the civil service law.” The powers of superintendents in city school districts were similarly modified (Education Law § 2508 [7]; § 2566 [9]).

The new enactment established that it was public policy to permit collective bargaining concerning a school superintendent’s power to transfer teachers (L 1986, ch 843, § 1). The amendment "does not alter the rule that there are certain powers of the school boards which remain nondelegable and nonnegotiable * * * it merely provides that the right to transfer teachers is not among those nondelegable powers” (Matter of Three Vil. Teachers’ Assn. v Three Vil. Cent. School Dist., 128 AD2d 626, 627). Because of the amendment, the question whether the arbitrator’s award in this case was against public policy does not turn on the distinction between substantive and procedural limitations on the power to transfer teachers set forth in Sweet Home, which held that "procedural rules regulating the right to reassign teachers,” unlike the power to reassign, could be a subject of collective bargaining (90 AD2d, at 684). Instead, it turns on the legislative intent behind the amendment.

The school district contends, and the Appellate Division agreed, that section 1711 (6) affects only the superintendent’s power to transfer teachers, but leaves the board’s power intact. In our view, the 1986 amendment was not so limited.

The superintendent of schools is the bargaining agent for a school district (Civil Service Law § 201 [10], [12]). By providing that the superintendent’s power to transfer teachers could be modified by agreement, the Legislature explicitly authorized superintendents to enter into collective bargaining agreements containing limitations upon their transfer power. Under the district’s view, those limitations could be enforced only against the superintendent. Thus, if the district chose to transfer teachers in violation of bargained-for limitations, there would be no remedy.

We cannot agree that the Legislature authorized collective bargaining concerning the transfer power in such a way that the resulting agreement could be enforced only against the bargaining agent and not against the district itself. As the Sponsor noted, the purpose of the bill was "to permit collective bargaining with respect to teacher assignments within a school district. Current law delegates this authority to the superintendent of the district * * *. This bill would establish the assignment and reassignment of teachers as a negotiable term and condition of employment” (Letter of Arthur J. Kremer to Evan A. Davis, July 15, 1986, Bill Jacket, L 1986, ch 843).

The district argues that if the Legislature had intended to affect the power of boards of education it would have amended provisions of the Education Law dealing with the board’s powers, such as Education Law § 1709 (13), (16) and (33), and not simply the provisions dealing with superintendents. However, none of the subdivisions of section 1709 to which the district refers state that the board has power to transfer teachers. Section 1711 (5) (e), by contrast, states that the superintendent has power to transfer teachers "and to report immediately such transfers to such board for its consideration and actions.” Section 1711 (5) (e) is thus an explicit grant of power to the school board to review the superintendent’s transfer decisions. By the same token, section 1711 (6), which provides that the superintendent’s transfer power may be modified by a collective bargaining agreement, has the same effect on the board’s powers.

The district notes that a memorandum in support of the legislation prepared by its Sponsor stated that the bill would declare it to be public policy "to allow public employers to enter into voluntary agreements” concerning teacher transfers (emphasis supplied), and contrasts this with the statement of purpose contained in the bill as enacted, which referred to "the powers and duties of superintendents of schools” (L 1986, ch 843, § 1; emphasis supplied). It argues that the emphasized change in wording means that the Legislature rejected a proposal that would have permitted public employers — i.e., school boards — to bargain away the power to transfer, and instead adopted a more limited provision permitting only superintendents to do so.

This contention is unpersuasive. The Sponsor’s memorandum summarizing the bill states that it "amends the educatian law to permit school superintendents and collective bargaining agents to collectively negotiate provisions regarding the transfer of teachers within a school district” (Mem in support of Assembly Bill 8042, Assemblyman Arthur J. Kremer, Bill Jacket, L 1986, ch 843). Clearly the Sponsor believed that amending the superintendent’s power to transfer teachers would achieve the purpose stated later in the same memorandum — "to allow public employers to enter into voluntary agreements” concerning teacher transfers. Thus, far from supporting the district’s contention, the Sponsor’s memorandum tends to refute it. Any doubt on this score would be further overcome by the many communications in the Bill Jacket from school superintendents and school board members urging the Governor to veto the legislation; those letters demonstrate acute awareness that passage of the law would diminish the public employer’s authority with respect to teacher transfers.

Nor does the memorandum of the Office of Employee Relations establish that the Governor approved the bill because he thought that it would only affect "procedural aspects of a teacher transfer.” As is plain from the face of the document, the memorandum was the agency’s response to proposed legislation, not the Governor’s message; the agency was concerned with the question whether the legislation could be interpreted to require negotiations concerning the superintendent’s power to transfer, a question not present here.

We conclude that by adding section 1711 (6), the Legislature intended to overturn the Sweet Home holding that the authority to transfer teachers could not be limited through collective bargaining. To give effect to that amendment, it should be read to permit collective bargaining concerning the power of the board of education to transfer teachers, not simply the power of the superintendent to do so. Therefore, once the arbitrator determined that the involuntary transfer provisions of the collective bargaining agreement had been violated, it was within his power to order the teachers reassigned as he did, and that remedy did not usurp a nondelegable power of the board of education.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the arbitration award confirmed.

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

Order reversed, etc.