author: Chief Judge Cooke.

text:
    In the Matter of Edward Nicholas et al., Respondents, v Alfred E. Kahn, as Chairman of the Public Service Commission and Administrative Head of the New York State Department of Public Service, et al., Appellants. In the Matter of Howard J. Read, Respondent, v Alfred E. Kahn, as Chairman of the Public Service Commission of the State of New York, Appellant.
    Argued February 8, 1979;
    decided April 26, 1979

      POINTS OF COUNSEL

      Peter H. Schiff and Charles R. Gibson for appellants.
    I. The commission had the power properly delegated by the Legislature to adopt its rules. (Lichter v United States, 334 US 742; Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269; Matter of City of Utica v Water Pollution Control Bd., 5 NY2d 164; Matter of Trustees of Vil. of Saratoga Springs v Saratoga Gas, Elec. Light & Power Co., 191 NY 123; Rapp v Carey, 44 NY2d 157; Evans v Carey, 40 NY2d 1008; Hunter v City of New York, 44 NY2d 708; Matter of Levine v Whalen, 39 NY2d 510; Wait Radio v Federal Communications Comm., 418 F2d 1153.) II. The rules were validly applied to security holdings of employees’ wives and minor children. (Evans v Carey, 40 NY2d 1008.) III. The department’s rules as applied to holdings in telephone companies and AT & T by professional employees in the commission’s communications division were reasonable. (Matter of General Tel. Co. of Upstate N. Y. v Lundy, 17 NY2d 373.) IV. The department’s rules as applied to holdings in General Electric Company by a professional employee in the utility research and demand management section of the commission’s office of research were reasonable. V. The department’s rules, as applied to holdings in Tesoro Petroleum Corp. by a senior attorney who is an exempt management-confidential employee, without tenure in the commission’s office of general counsel, were reasonable.

      Michael J. Smith for Edward Nicholas and others, respondents.
    I. The rule-making power of an administrative agency is limited. (Rapp v Carey, 44 NY2d 157; Matter of City of

      Rochester v County of Monroe, 81 Misc 2d 452; Matter of Boyd v Collins, 11 NY2d 228; Matter of Gross v New York City Alcoholic Beverage Control Bd., 7 NY2d 531; Matter of Hines v La Guardia, 293 NY 207; Matter of Cherry v Board of Regents of Univ. of State of N. Y., 289 NY 148; Matter of Jones v Berman, 37 NY2d 42; Matter of Gold [Corsi], 307 NY 224; Matter of Federal Tel. & Radio Corp. [Corsi], 301 NY 95; Matter of Meit v P. S. & M. Catering Corp., 285 App Div 506.) II. The instant rules are legislative in nature in that they extend and expand existing conflict of interest legislation and are an attempt to regulate persons and concerns not within appellants’ jurisdiction. (Rapp v Carey, 44 NY2d 157; Evans v Carey, 40 NY2d 1008; Dwyer v Kahn, 88 Misc 2d 73; Matter of Levine v Whalen, 39 NY2d 510.) III. Appellants’ orders to divest based on the holdings of petitioners’ spouses and/or minor children are null and void as having been made without a showing of direct conflict of interest and as placing an illegal and impossible act as a condition for the continued public employment of petitioners. (People v Law, 31 AD2d 554; Wright v Wright, 54 NY 437; Rowe v Smith, 45 NY 230.) IV. Appellants’ orders to divest are arbitrary and capricious as unsupported by a finding of real and/or substantial conflict of interest. (Matter of Walpole v State Liq. Auth., 78 Misc 2d 372, 46 AD2d 1010, 36 NY2d 647; Sanspar Rest. Corp. v Ring, 65 Misc 2d 847, 39 AD2d 595; Matter of Jowdy v State Liq. Auth., 49 AD2d 672; Matter of Pell v Board of Educ., 34 NY2d 222.)

      Garry, Cahill, Edmunds & Breslin for Howard J. Read, respondent.
    I. The court below correctly determined that appellant lacked authority to issue his regulations. (Rapp v Carey, 44 NY2d 157; Matter of Broidrick v Lindsay, 39 NY2d 641; Matter of Levine v Whalen, 39 NY2d 510.) II. Respondent’s request for an exemption was incorrectly denied. (Matter of City of New York v Public Serv. Comm. of State of N. Y., 84 Misc 2d 1058, 53 AD2d 164, 42 NY2d 916.)
   OPINION OF THE COURT

Chief Judge Cooke.

Respondents, Chairman of the Public Service Commission, and the State Department of Public Service, appeal from orders of the Appellate Division which unanimously granted summary judgment to petitioners, employees of the commission. The judgments declared the "Rules with respect to Personal Investments by Employees of the Public Service Commission and Public Service Department” promulgated by the chairman unconstitutional. In essence, those rules prohibit commission employees, their spouses and minor children from owning any interest in certain business concerns whose performance is related, at least in part, to companies regulated by the commission. A limited class of employees and their families are entitled to apply for an exemption from the operation of the rules.

The threshold issue presented is whether the authority to promulgate these rules was delegated to the chairman by/ the Legislature. Should that inquiry be answered in the affirmative, the remaining question is whether the exemption procedures contained in the rules articulate objective standards so that an aggrieved employee may seek meaningful judicial review of an adverse determination by the chairman.

The orders of the Appellate Division should be modified. Under the code of ethics for State officers and employees (Public Officers Law, § 74) and its enabling legislation (Executive Law, § 74), the Legislature has recognized that the task of implementing and defining the ethical considerations set forth in the statute are to be vested in the person ultimately responsible for the performance of the commission’s functions —its chairman (see Public Service Law, § 3; 48 NY Jur, Public Utilities, § 10, p 457). While it is true that an administrative agency possesses no inherent legislative power, it may constitutionally exercise its authority by promulgating rules within the boundaries of its legislative delegation. Those rules prohibiting commission employees and their families from investing in certain companies are well within the legislative delegation and are therefore valid.

However, that portion of the rules pertaining to the right of an employee to secure an exemption from their operation vests that decision in the unfettered discretion of the chairman. As presently drafted, this segment of the rules contains no criteria to guide the chairman in determining whether to grant an exemption, thereby circumventing the procedural safeguards available to those applying for an exemption through judicial review. Thus, because of the lack of guidelines any denial of an exemption by the chairman was arbitrary and capricious as a matter of law. Accordingly, the rules may not be applied, in their present form, to those employees who have heretofore sought an exemption until such time as a valid exemption rule is promulgated or the chairman determines that no exemptions from the operation of the rules are warranted.

Seeking to avoid both actual conflicts of interest and the very appearance of conflicts by employees of the Public Service Commission and Department of Public Service, respondents adopted eight rules governing the personal investments of these employees and their immediate families. The rules prohibit these persons from holding any interest, direct or indirect, in five categories: Rule 1, companies subject to the jurisdiction of the commission; Rule 2, out-of-State utility companies not subject to the jurisdiction of the commission; Rule 3, manufacturers and suppliers of major electric utility equipment; Rule 4, companies which sell utility fuels; and, Rule 5, suppliers and manufacturers of telephone terminal equipment or specialized communications carriers. Rule 6 authorizes any person employed by the commission before the effective date of the rules to seek an exemption from the operation of Rules 2 through 5 on behalf of himself, his spouse or unemancipated children. Rules 7 and 8 deal with enforcement and violations of Rules 1 through 5.

Following the effective date of the rules, each of the petitioners sought exemptions. Those requests were initially rejected by the secretary of the commission and then by the chairman upon administrative appeal. These article 78 proceedings ensued. In support of their contentions that the rules are invalid, petitioners argue that the Legislature has not delegated the chairman authority to regulate the outside investments of commission employees and that the promulgation of the rules constituted an administrative usurpation of legislative prerogatives. We disagree.

Initially we note that, aside from the separation of powers and delegation arguments raised by petitioners, no one contends that the commission does not have a vital interest in regulating the outside investments of its employees (cf. Rapp v Carey 44 NY2d 157, 165; Evans v Carey, 40 NY2d 1008). The real problem in any of these situations is to strike the delicate balance between the interest of the employee in managing his or her investment portfolio or outside business activities and the interest of the administrative body in promoting the efficiency of the services it must necessarily perform through human agencies. By statute (Executive Law, § 74, subd 2, par [c]), that determination is vested with the chairman, whose expertise in both the nature of duties of commission employees and the problems inherent in the functioning of the agency render him particularly well suited to accomplish this task. Although the commission is free to strike a different balance, if it so chooses, the approach that has been taken is sustainable.

It is fundamental that employees of any State agency must administer the law in accordance with the will of the Legislature, rather than in accordance with their own will or with an eye toward the viability of their investments. They are charged with the duty of administering the law without bias or favoritism and in complete disregard of their own personal interests. The major point of the rules now under attack is to eradicate this possibility by ensuring that such favoritism, however subtle or unconscious that partiality may be, is eliminated. Equally important, there is yet another consideration underlying the administrative judgment. It is not only essential that the commission and its employees in fact avoid basing their decisions on personal financial considerations, it is also critical that they appear to the public to be avoiding that evil. Connotations of favoritism, whether justified or not, inevitably arise where those who regulate have a direct or indirect interest in that which they regulate. Resort to any other path would effectively erode the public’s confidence in its agents.

Irrespective of the wisdom or advisability of the rules, it must be determined whether the chairman was delegated the power to promulgate them by the Legislature. For in the absence of such delegation, the administrative action would constitute an unauthorized exercise of legislative power in contravention of the separation of powers doctrine (Rapp v Carey, 44 NY2d 157, 162, supra; Matter of Broidrick v Lindsay, 39 NY2d 641, 646; People ex rel. Ingenito v Warden & Agent of Auburn Prison, 267 App Div 295, 299-300, affd 293 NY 803).

It is elementary that ours is a system in which the governmental powers are distributed among three branches— the executive, legislative and judicial (NY Const, art III, § 1; art IV, § 1; art VI). It is equally obvious that one of these branches may not arrogate unto itself the powers residing wholly in another branch (Youngstown Co. v Sawyer, 343 US 579). Although oftentimes combining legislative, executive and judicial functions, administrative agencies are but creatures of the Legislature and are possessed only of those powers expressly or impliedly delegated by that body (Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471, 480; Matter of City of Utica v Water Pollution Control Bd., 5 NY2d 164, 168-169).

That the Legislature cannot delegate its lawmaking power to an administrative agency is a principle firmly rooted in the system of government ordained by our Constitution. At the same time, however, there is a manifest distinction between the legislative power to be exercised only by that body and an ancillary power to implement the policies enacted into law (see, generally, Martin v State Liq. Auth., 43 Misc 2d 682, 686, affd 15 NY2d 707). The cornerstone of administrative law is derived from the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation (see, e.g., Matter of Bates v Toia, 45 NY2d 460, 464; Packer Coll. Inst. v University of State of N. Y., 298 NY 184, 189-190). Indeed, the difficulty and complexity of most of these policy determinations mandates that the legislative body be permitted to provide for the implementation of basic policy through the use of specialized agencies concentrating upon one particular problem at a time.

Thus, it is not necessary that the Legislature supply administrative officials with rigid formulas in fields where flexibility in the adaptation of the legislative policy to infinitely variable conditions constitute the very essence of the programs. Rather, the standards prescribed by the Legislature are to be read in light of the conditions in which they are to be applied (Matter of Broidrick v Lindsay, 39 NY2d 641, 646, supra; Matter of Sullivan County Harness Racing Assn. v Glasser, 30 NY2d 269, 276-277). Indeed, some areas are simply incapable of statutory completion. In the context of this case, it is obvious that even the most prescient of legislative bodies might exhaust its ingenuity in an attempt to proscribe all conflicts of interest only to find that in a particular case it has omitted an area in which the conflict between public obligations and private interests would be particularly egregious (see Matter of Trustees of Vil. of Saratoga Springs v Saratoga Gas, Elec. Light & Power Co., 191 NY 123, 147; Fritz v Gorton, 83 Wn 2d 275, app dsmd 417 US 902).

It is necessary, therefore, to examine the purpose of the enabling legislation, its factual background and history to ascertain whether respondents have been delegated the power to promulgate these rules. In enacting the code of ethics (Public Officers Law, § 74), the Legislature recognized that, inasmuch as improper conflicts of interest "may arise in so many different forms and under such a variety of circumstances”, it was not only impractical but "unwise and unjust to proscribe them by statute with inflexible and penal sanctions” (L 1954, ch 696, § 1). Instead, it chose to couch the code of ethics in broad terms, prescribing the standards for officers and employees of all State agencies. In clear and unmistakable terms, the code declares the public policy of the State — to prevent even the appearance of the slightest taint of impropriety from infecting the decision-making process in our government. Particularly relevant to the rules promulgated by the chairman is subdivision 2 of section 74 which provides: "No officer or employee of a state agency * * * should have any interest, financial or otherwise, direct or indirect, or engage in any business or transaction or professional activity or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his duties in the public interest” (see, also, Public Officers Law, § 74, subd 3, pars f-i; Public Service Law, § 9).

It is evident that in enacting this statutory scheme the Legislature recognized the varying duties and responsibilities of the multitude of State agencies would render it impractical to prescribe a rigid formula applicable to all. It is equally obvious that the statutes were not intended simply as a guide to the conscience of State employees. The provisions of the code of ethics are not merely innocuous platitudes or beneficient bromides relating to the standard of conduct that those charged with the public trust should follow. Were this the case, there would be no provision in the code empowering an agency to remove employees who violate their ethical duties (Public Officers Law, § 74, subd 4) nor any statute empowering an administrative agency to promulgate rules and regulations consistent with the legislative scheme (Executive Law, § 74, subd 2, par [c]). We conclude, therefore, that the Legislature has delegated to the chairman the authority to promulgate rules with respect to conflicts of interest and must decline petitioners’ invitation to prohibit administrative action in an area consistent with the accomplishment of the commission’s ultimate purpose.

Having concluded that the chairman had authority to promulgate the rules, it is necessary to address petitioners’ contention that the denials of their requests for an exemption from the operation of the rules were arbitrary and capricious. The commission quite properly recognized that comprehensive prophylactic rules, if rigidly enforced without any opportunity for relief in special circumstances, might result in serious injustice to an individual employee without any corresponding public benefit. Although not required to do so, the chairman adopted a policy which provides for individual exemption from the operation of the rules in areas consistent with the public interest. Having chosen to make this procedure available to commission employees, however, the chairman was bound to articulate objective standards against which an ultimate determination could be measured (Matter of Levine v Whalen, 39 NY2d 510, 518-519). Inasmuch as there were no standards of that character set forth to guide the chairman in deciding whether to grant an exemption, the denial of petitioners’ applications was arbitrary and capricious.

The safeguard against arbitrary administrative action lies in the promulgation of adequate standards in the exemption procedure itself to insure meaningful judicial review should an employee deem himself aggrieved upon the denial of an exemption. Protection of the individual employee against the exercise of arbitrary administrative power demands both procedural safeguards within the agency and outside checks upon the exercise of untrammeled administrative discretion (see CPLR 7803, subd 3). In reviewing applications for exemptions, the sole consideration contained in the rules is whether the holdings of a spouse or child are minimal enough to constitute what the commissioner determines to be good cause. The flaw in this procedure lies in the fact that the rules do not provide any objective standards sufficient to invoke judicial review upon the denial of an exemption since there is no way of determining what guides were intended by the agency to govern its decision. While it is certainly not fatal that the decision is left to the discretion of the chairman, an administrative agency is forbidden from exercising its discretionary power without first detailing standards or guides to govern the exercise of that discretion (see Holmes v New York City-Housing Auth., 398 F2d 262; cf. Environmental Defense Fund v Ruckelshaus, 439 F2d 584, 598; Soglin v Kauffman, 418 F2d 163).

That is not to say, of course, that the chairman must lay down any hard and fast rules with respect to when any exemption would be available. Foisting such an obligation upon the agency would suffer the same infirmity as petitioners’ attempt to bind the chairman’s power to formulate rules in an area which the Legislature itself recognized as incapable of statutory completion. But where, as here, the rules delegate unfettered discretion to the chairman with inadequate safeguards against the exercise of arbitrary power or simple unfairness, a denial of a requested exemption is arbitrary and capricious as a matter of law.

In sum, Rules 1 through 5 were promulgated pursuant to an express delegation of power by the Legislature and are valid. Inasmuch as the exemption procedure is fatally flawed as presently drafted, however, they may not be enforced against any employee who has heretofore sought to be exempted from their operation. These persons are released from the operation of the rules, however, only until such time as the chairman adopts an exemption provision which comports to the requirements stated herein or until it is determined that no exemption from the requirements of the rules are warranted in any case.

Accordingly, the orders of the Appellate Division should be modified, without costs, in accordance with this writing.

Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur with Chief Judge Cooke.

Orders modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.

APPENDIX

Rules with respect to Personal Investments by Employees of the Department of Public Service and the Public Service Commission.

Rule 1. Utility companies subject to the jurisdiction of the Commission: Commissioners and all employees of the Department and the Commission are prohibited from holding any stocks or bonds or having any interest, direct or indirect, in companies subject to the jurisdiction of the Commission.

Rule 2. Utility companies in other states, not subject to the jurisdiction of the Commission: Commissioners, the Chairman’s assistants, division and office heads and section chiefs, and all professional employees involved in the Regulation of Utilities program, are prohibited from holding stocks or bonds or any other interest, direct or indirect, in water, communications, electric or gas utilities in other states, except to the extent provided for in Rules 6 and 7.

Rule 3. Companies which manufacture and/or supply major electric utility equipment: Commissioners, members of the State Siting Board, the Chairman’s assistants, the Secretary, and the heads of and the professional employees in the Power Division, Office of Counsel, Office of Research, Office of Environmental Planning, Office of Accounting and Utility Finance, Office of Hearing Examiners and Office of Special Assistants are prohibited from holding stocks or bonds or any other interest, direct or indirect in companies included in Table I or which derive 25% of revenues from the manufacturing and/or supplying of (a) power plant generators; (b) power plant boilers; (c) power plant water cooling systems, coal desulfurization systems, and other major environmental control equipment for power plants, except to the extent provided for in Rules 6 and 7.

Rule 4. Companies which sell utility fuels (oil, natural gas, coal and uranium): Commissioners, members of the State Siting Board, the Chairman’s assistants, the Secretary, the heads of and professional employees in the Power and Gas Divisions, Office of Counsel, Office of Research, Office of Environmental Planning, Office of Accounting and Utility Finance, Office of Hearing Examiners and Office of Special Assistants are prohibited from holding stocks or bonds or any other interest, direct or indirect, in companies included in Table II or which derive 25% of revenues from the selling of oil, coal, natural gas or uranium to other companies, except to the extent provided for in Rules 6 and 7.

Rule 5. Companies which manufacture and/or supply telephone terminal equipment; specialized communications common carriers: Commissioners, the Chairman’s assistants, the Secretary and the heads of and professional employees in the Communications Division, Office of Counsel, Office of Research, Office of Accounting and Utility Finance, Office of Hearing Examiners and Office of Special Assistants are prohibited from holding stocks or bonds or any other interest, direct or indirect, in companies included in Table III or which derive 25% of revenues from: (a) manufacturing and/or supplying telephone terminal equipment, and/or (b) providing specialized communications common carrier services, except to the extent provided for in Rules 6 and 7.

Rule 6. Provision for exemptions: There shall be no opportunities for exemption from Rule 1, except to the extent noted in that rule and the footnote thereto with respect to an existing employee’s spouse or unemancipated children. Any person employed or entering the employ of the Department or the Commission may request an exemption from Rules 2, 3, 4 or 5, either for his own investments or those of his spouse or unemancipated children, by following the procedure described in Rule 7(b).

Rule 7. Enforcement:

(a) Every person who is in the employ of the Department or the Commission or entering their employ shall, within 20 days of the effective date of the rules or before commencement of their employment:

(1) Make such arrangements with his personal investments and those of his spouse and unemancipated minor children as may be necessary to comply with these rules, and sign a sworn certification that he is in compliance and will remain in compliance with these rules:

OR

(2) Seek an exemption or exemptions from the rules to the extent provided for in Rule 6, and in the manner set forth in subdivision (b) of this rule, which follows.

(b) Any person in or entering the employ of the Department or the Commission who wishes and is entitled to seek an exemption shall disclose the names of the companies in which he or his spouse or unemancipated children have an interest and the value of that interest, including the number of any shares of common equity that may be involved. This information, together with a brief statement of the employee’s reasons for wishing to retain the investment, shall be set forth in writing and submitted to the Secretary to the Commission. The Secretary shall review the request, afford the employee applying for exemption an opportunity for an informal hearing, and write a decision on the request within 20 working days of its submission. A copy of the decision shall be furnished to the employee. If the decision is unsatisfactory to the employee, he shall be given seven working days to appeal to and/or seek to have an informal hearing before the Chairman or one of his assistants. The Chairman shall issue his decision within 20 working days of the date of appeal. That decision shall be final.

If the exemption is granted, the employee shall sign a statement certifying the extent to which he is in compliance with the rules and agreeing to refrain from any further investments prohibited by the rules.

If the exemption is denied, the employee shall be given a reasonable period of time, specified by the Chairman, to arrange for divestment of the prohibited interests or to take such other action as may be directed by the Chairman.

Rule 8. Violations: Any employee who knowingly and intentionally violates the provisions of these rules may be removed from employment in the manner provided by law.

      . The full text of the rules are set forth in an appendix; the tables referred to therein have been omitted.

      . Respondents’ reliance upon Rapp v Carey (44 NY2d 157, supra) is misplaced. The executive order declared unconstitutional in that case was found to have been promulgated without benefit of legislative delegation, either express or implied (id., p 160) and to have gone beyond the parameters of the code of ethics (id., pp 165-167). In contrast, the rules under attack here prohibit investment in companies whose performance is tied to the activities of the agency to whom the delegation was expressly committed (Executive Law, § 74, subd 2, par [c]).

      . Any person who commenced employment with the Department before November 20, 1974 and whose spouse or minor children have such holdings must have or immediately obtain a ruling from the Secretary with respect to the propriety of such holdings.

      . The form to be used is #P-8, a copy of which is attached.


source: Caselaw Access Project

author: Fuchsberg, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v James Thomas, Appellant.
    Argued March 21, 1979;
    decided April 26, 1979

      POINTS OF COUNSEL

      Arthur J. Giacalone for appellant.
    I. Appellant’s fundamental right to appeal his conviction may not be dissipated because of trial counsel’s failure to abide by a promise to file a notice of appeal. (People v Montgomery, 24 NY2d 130; United States ex rel. Smith v McMann, 417 F2d 648; United States ex rel. Witt v La Vallee, 424 F2d 421; People v Ramsey, 23 NY2d 656; People v Callaway, 24 NY2d 127.) II. It was proper for appellant to seek Montgomery relief in a motion pursuant to CPL 460.30 rather than appealing an order of the court below vacating assignment of counsel. (People v Montgomery, 24 NY2d 130; People v Corso, 40 NY2d 578.) III. Appellant’s constitutional and statutory claim for reinstatement of his right to appeal is not barred by the one-year limit in CPL 460.30. (People v Corso, 40 NY2d 578; Haines v Kerner, 404 US 519; Stirling v Chemical Bank, 511 F2d 1030; Mount v Book-of-the-Month Club, 555 F2d 1108; Haltmier v Commodity Futures Trading Comm., 554 F2d 556; McKinney v De Bord, 507 F2d 501; Rodriguez v United States, 395 US 327; People v Pride, 3 NY2d 545; People v Curry, 42 AD2d 514; People v Lee, 41 AD2d 757.)

      Curtis L. Lyman, District Attorney, for respondent.
    I. Appellant’s fundamental right to appeal this conviction has not been dissipated because of trial counsel’s failure to abide by a promise to file a notice of appeal. II. Defendant does not have an absolute right for enlargement of the time in which to file an appeal. (People v Adams, 21 NY2d 397.) III. Defendant has not met the statutory requirements for appeal. (People v Corso, 40 NY2d 578.)

      Louis J. Lefkowitz, Attorney-General (Jean M. Coon and Frederick R. Walsh of counsel), amicus curiae.

    CPL 460.30 is constitutional. (Zorach v Clauson, 303 NY 161, 343 US 306;
      Wasmuth v Allen, 14 NY2d 391; Wiggins v Town of Somers, 4 NY2d 215; People v Corso, 40 NY2d 578; People v Montgomery, 24 NY2d 130.)
   OPINION OF THE COURT

Fuchsberg, J.

In the rather unusual circumstances presented by this case, we hold that the People are estopped from asserting the one-year limit of CPL 460.30 to defeat defendant’s motion for an extension of time to appeal his criminal conviction.

After his conviction in Orleans County Court on the charge of possession of a forged instrument in the second degree, on April 18, 1975 James Thomas was sentenced to an indeterminate term of from three and a half to seven years. At that time the Presiding Judge informed the defendant of his right of appeal, specifically advising him that the time within which to do so was 30 days, and that assigned counsel would assist him in filing a notice of appeal. Immediately after sentencing, according to the defendant, he informed counsel of his desire to appeal and the latter assured him that he would file the necessary notice.

But no notice was ever filed. Indeed, he received no word from the lawyer for nearly three months. Apparently still anxious to obtain a review of his conviction, at this juncture he took matters into his own hands. However, despite his due diligence, unschooled in the intricacies of appellate practice, he mistakenly proceeded by mailing to this court a document entitled "Notice of Motion to Appeal in Forma Pauperis” accompanied by an affidavit in which he stated "I am aware of my right to appeal, and that I am filing a notice of appeal” and requested the appointment of counsel for the prosecution of the appeal he no doubt believed he had thus initiated. The clerk at the Court of Appeals, in a letter to the defendant dated July 15, 1975, explained that the motion should properly have been addressed to the Appellate Division and indicated that copies of the papers had been forwarded to the clerk of the Orleans County Court and to assigned counsel.

Defendant having followed up by promptly forwarding the papers to the Appellate Division, its consultation clerk mailed the Orleans County District Attorney’s office a form reporting that Thomas had moved for "permission to prosecute an appeal” and requesting certain information, namely, the date of entry of the order from which the appeal was being taken, the date on which the District Attorney’s office had received a notice of appeal, and the date on which the defendant had filed a notice of appeal in the county clerk’s office. The District Attorney was instructed to reply by August 13. That date having come and gone without a reply, the Appellate Division dispatched a second letter of inquiry. It too went unanswered.

The District Attorney has never proffered any explanation for his disregard of the correspondence of a high court of this State. Nor does he contend that the defect in defendant’s appeal was not known by his office at that time. However, despite the District Attorney’s failure to respond, the Appellate Division, acting on the logical assumption that a notice of appeal had been timely filed, on September 8, 1975 issued an order granting defendant’s application to proceed as a poor person and chose the original assigned counsel as his counsel on the appeal. Though copies of the order were sent to the District Attorney and the newly redesignated counsel, neither notified the court that a notice of appeal had never been filed in the case. Thus, on three separate occasions, while his default was still curable, and under circumstances that officially brought home the fact that defendant was proceeding as though a live appeal were pending, the District Attorney sat back and maintained an unbroken silence while defendant’s last chance to obtain the status of an appellant was ebbing away.

So things continued for 18 months. Meanwhile the defendant, continuing to manifest his desire to appeal, though incarcerated, unsuccessfully sought other available relief. It was not until March 29, 1977, after the defendant had filed a pro se motion for reversal of his conviction in the Appellate Division, and his right to move under CPL 460.30 had long since expired, that the District Attorney, alert and zealous to defeat the motion, for the first time made known that a proper notice of appeal had never been filed. The denial of the motion brought with it a vacatur of the order permitting defendant to appeal as a poor person. Having secured another lawyer, the defendant at long last was advised to make a CPL 460.30 motion. The motion was denied on the law by the Appellate Division because under that section it was required to have been made within one year after the time for taking an appeal had expired, in other words by May 18, 1976. 3****It is from the denial of this motion that defendant has appealed.

CPL 460.30 "plainly and precisely deals with and encompasses the relief’ provided in People v Montgomery (24 NY2d 130). (See People v Corso, 40 NY2d 578, 580.) We there held that, upon a showing that a defendant had not been informed of his right to appeal and had a genuine appealable issue, he was entitled to "be resentenced so that his time to appeal will run anew” (People v Montgomery, supra, p 134; see, also, People v Rivera, 39 NY2d 519, 525). The same remedy was afforded in cases in which a defendant’s failure to appeal was due to un-co-operative prison officials (People v Hairston, 10 NY2d 92) or to his lawyer’s assurance that an appeal would be taken in his behalf (People v Callaway, 24 NY2d 127). CPL 460.30 defined the means by which such claims could be raised (People v Corso, supra).

As pertinent there, CPL 460.30 (subd 1) provides, inter alia, that upon motion by a defendant who has failed to file a notice of appeal "the time for the taking of such appeal be extended to a date not more than thirty days subsequent to the determination of such motion, upon the ground that the failure to file such notice of appeal * * * in timely fashion resulted from improper conduct of a public servant or from improper conduct, death or disability of the defendant’s attorney. Such motion must be made with due diligence after the time for taking of such appeal has expired, and in any case not more than one year thereafter.”

To excuse his failure to file a notice of appeal within the required 30-day period, the defendant relies on his assigned counsel’s inaction. Thus, his claim falls squarely within the embrace of the statute. But the District Attorney argues that the one-year time limit constitutes an inflexible bar to the defendant’s appeal. While we concur in his characterization of the statute’s time period, we reject the conclusion to which it would lead in this case.

The one-year limitation on the bringing of a Montgomery claim by means of a 460.30 motion has been a part of the statute since its inception, remaining unchanged despite at least two legislative re-examinations (see L 1970, ch 996, § 1; as amd by L 1971, ch 671, § 6; as amd by L 1977, ch 699, § 4). The purpose of the time limit, like that of any Statute of Limitations, was to eliminate stale Montgomery claims, but it served as well the ameliorative goal of automatically extending for an extra year the time to appeal for those whose right to do so had been infringed. Our statement in Corso that CPL 460.30 motions "may not be made more than one year after the time for taking an appeal has expired” was unequivocal (40 NY2d 578, 581). We remain convinced that strict construction is appropriate since the time limits within which appeals must be taken are jurisdictional in nature and courts lack inherent power to modify or extend them (see Pollak v Port Morris Bank, 257 NY 287, 288; People v Harres, 41 AD2d 999; Pitler, New York Criminal Practice Under the CPL, § 104.23, pp 790-791, and 1979 Cumm Supp, p 520).

Nevertheless, because the omissions on the part of the prosecutor, though no doubt made more critical by assigned counsel’s less than assiduous performance, frustrated the good faith exercise of the defendant’s right to the remedy of CPL 460.30, the People should be estopped from invoking the bar of the one-year limit (cf. Bender v New York City Health & Hosps. Corp., 38 NY2d 662). That the defendant made diligent efforts to preserve his right to appeal cannot be denied. Nor can it be disputed that but for the cumulative effect of the prosecutor’s inaction, the defendant would have learned of his failure to file an effective notice of appeal early enough to make timely application for relief.

Crucial and most seriously prejudicial to the defendant’s attempted pro se appeal was the District Attorney’s unresponsiveness to the Appellate Division’s repeated inquiries in August, 1975. As indicated by the prepared form it sent, the Appellate Division routinely relied on the District Attorney as a source of information on pending criminal appeals. Not only was it practical for the court to seek data from the defendant’s adversary, but also eminently rational in view of the broader duty of the prosecutor to function in the interest of justice and fair play as a representative of the public interest (see People v Fielding, 158 NY 542, 547). And, especially in pro se proceedings, the court’s solicitation of data from the prosecutor’s office enabled it to offer needed advice to those who might otherwise unintentionally forfeit their rights. Here, the information was sought by the court precisely to determine whether a notice of appeal had been timely filed by the defendant. The prosecutor’s acknowledgment of the court’s reliance, by virtue of his past compliance with identical requests, coupled with the status of the District Attorney’s office as a "quasi-judicial” entity (see People v Adams, 21 NY2d 397, 402; People v Fielding, supra, p 547), makes more conspicious the dereliction in this case. Two clear requests for the information were ignored. And, despite the mailing of the order granting the defendant poor person status and assigning counsel in September, 1975, the glaring defect in his appeal was not called to the court’s attention until one and a half years later.

Whether the delay was the result of indifference or carelessness does not matter. There was a clear abuse of the prosecutor’s 0 responsibility to act with reasonable promptness on his knowledge (cf. People v Stottlemeyer, 9 AD2d 1022). The egregiously long silence from the District Attorney inevitably lulled the defendant, and apparently the Appellate Division, into falsely accepting the appeal as properly brought. Having by his own nonfeasance made unlikely the discovery and correction of the defect, the District Attorney should now be estopped from raising the time bar of CPL 460.30 (see Bender v New York City Health & Hosps. Corp., 38 NY2d 662, 668, supra [Corporation Counsel estopped from raising time limit of section 50-i of the General Municipal Law after lengthy period of acquiescence]; Buffalo Hebrew Christian Mission v City of Syracuse, 33 AD2d 152, 156 [city estopped from raising 15-day limitation on tax exemption actions where dilatory conduct of city officials deterred plaintiff from securing exemption]). The classic elements of estoppel are all present here: there was a duty to speak, violation of that duty by the prosecutor, and consequent detrimental reliance on the part of the defendant (see La Porto v Village of Philmont, 39 NY2d 7; Bender v New York City Health & Hosps. Corp., supra).

Developments after August, 1975 did not lessen the seriousness of the District Attorney’s inaction but in fact heightened it. Interpreting the prosecutor’s conduct as tacit acquiescence, the Appellate Division processed the appeal and thus, understandably, compounded the error by issuing the order granting defendant permission to proceed as a poor person and assigning counsel. Given the District Attorney’s continued failure to supply the data necessary for any consideration of timeliness, and no doubt having rejected as incredible the possibility that such pertinent information would be withheld, there seemed no reason then for the court to deny defendant the requested relief. Nor was it to be presumed by the prosecutor that subsequent communications between Thomas and his appointed counsel would relieve him of the obligation to supply such information, particularly in this instance. Although we find it regrettable that defendant’s counsel permitted himself to overlook the procedural misstep, admittedly his representation of Thomas was, at a critical juncture, interrupted for several months while, in contrast, the prosecutor had a continuing responsibility.

It follows that the order of the Appellate Division should be reversed and the matter remitted for consideration on the merits.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur with Judge Fuchsberg.

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

      . In December, 1975, the defendant unsuccessfully moved the Orleans County Court for an order to be resentenced as a first felony offender. In May, 1976, a writ of habeas corpus was sought but denied by the State Supreme Court.

      . The initial order of the Appellate Division having failed to state "that the determination was made up on the law alone” (CPL 460.30, subd 6), defendant successfully moved to resettle the order to exclude the possibility that the decision was premised on an exercise of discretion and, hence, to permit an appeal to our court (People v Thomas, 44 NY2d 759).

      . Subsequent amendments have expanded the scope of the statute to encompass the failure to file a timely application for a certificate granting leave to the Court of Appeals, and to provide as an additional ground for relief a defendant’s inability to communicate with his attorney due to incarceration (see CPL 460.30, subd 1, as amd by L 1977, ch 699, § 4).

      . CPLR 1101 (subd [a]) provides that "[u]pon motion of any person, the court in which the action is triable, or to which an appeal has been or will be taken, may grant permission to proceed as a poor person”. Thus, even without knowing when a notice of appeal had been filed, the court could properly issue its order on the assumption that an appeal "will be taken”. The record does not disclose whether any effort was made by the Appellate Division to contact the Orleans County Court in order to obtain some of the information unsuccessfully sought from the District Attorney.


author: Per Curiam.

text:
    The People of the State of New York, Appellant, v St. Agatha Home for Children and Robert Keating, Respondents.
    Argued March 28, 1978;
    decided May 1, 1979

      POINTS OF COUNSEL

      Carl A. Vergari, District Attorney (James A. Cuddihy, of counsel), for appellant.
    I. The decision of the court below is contrary to the decided case law of the State of New York. (Group House of Port Washington v Board of Zoning & Appeals of Town of North Hempstead, 55 AD2d 636.) II. Under the Ferraioli decision, the group home herein cannot be considered a family for zoning purposes. (City of White Plains v Ferraioli, 34 NY2d 300.) III. The most recent case of Moore v City of East Cleveland in the Supreme Court of the United States confirms the doctrine and constitutionality of Belle Terre and is completely dispositive of the issue. IV. The logic of the dissent of the Court of Appeals in Port Washington also confirms the legality of appellant’s position herein. V. The problem is readily and easily soluble by legislative change, if deemed necessary. VI. The court below clearly erred in holding that the nonsecured detention facility herein was established in conformity with State policy and could not be prohibited by a contrary local zoning ordinance. (Ontario Knitting Co. v State of New York, 205 NY 409; Matter of Elite Dairy Prods. v Ten Eyck, 271 NY 488; Matter of Blount v Forbes, 250 App Div 15.) VII. The Pound Ridge Ordinance is clear, definite, reasonable and constitutional.

      David H. Berman and Gerald E. Bodell for respondents.
    I. The Justice Court erred in not granting respondents’ motion to dismiss at the close of the People’s case, as no evidence was set forth by the People to show that the home was occupied. (People v Williams, 34 AD2d 1046; People v Guarino, 56 AD2d 638.) II. The occupants of the subject premises may be considered a family for purposes of this ordinance. (City of White Plains v Ferraioli, 34 NY2d 300; Group House of Port Washington v Board of Zoning & Appeals of Town of North Hempstead, 45 NY2d 266; United States v Rumely, 345 US 41; Schneider v Smith, 390 US 17.) III. The State has pre-empted the field, leaving no room for local communities to restrict the areas within their geographical boundaries wherein State sponsored facilities may be operated. (Floy v New York State Urban Dev. Corp., 33 NY2d 1; Wambat Realty Corp. v State of New York, 41 NY2d 490; Matter of Board of Coop. Educ. Servs. of Nassau County v Gaynor, 60 Misc 2d 316, 33 AD2d 701, 26 NY2d 612; Nowack v Department of Audit & Control of State of N. Y., 72 Misc 2d 518; Abbott House v Village of Tarrytown, 34 AD2d 821; Town of Brookhaven v Parr Co. of Suffolk, 76 Misc 2d 378; Long Is. Univ. v Tappan, 202 Misc 956; Matter of Franciscan Missionaries of Mary v Herdman, 7 AD2d 993; Berenson v Town of New Castle, 38 NY2d 102.) IV. The ordinance under which respondents were convicted by the Justice Court is so vague as to constitute the denial of due process. (Bouie v City of Columbia, 378 US 347; United States v Harriss, 347 US 612; People v Munoz, 9 NY2d 51; People v Scott, 26 NY2d 286; Lanzetta v New Jersey, 306 US 451.) V. The Pound Ridge Ordinance is unconstitutional as violative of respondents’ rights to equal protection of law. (San Antonio School Dist. v Rodriguez, 411 US 1; Shapiro v Thompson, 394 US 618; Moore v East Cleveland, 431 US 494; Poe v Ullman, 367 US 497; Matter of Westchester Reform Temple v Brown, 22 NY2d 488; Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508; Matter of Community Synagogue v Bates, 1 NY2d 445; Matter of Unitarian Universalist Church of Cent. Nassau v Shorten, 63 Misc 2d 978; N. A. A. C. P. v Button, 371 US 415; Kennedy Park Homes Assn. v City of Lackawanna, 436 F2d 108.)
   OPINION OF THE COURT

Per Curiam.

The order appealed from should be affirmed. Having elected to litigate this novel question of zoning law in the context of a criminal proceeding, the People must of course meet all burdens placed upon the People in a criminal proceeding, including the burden of proving all elements of the offense beyond a reasonable doubt. This they have failed to do.

Defendants are a private child care organization and one of its employees. They are charged with operating a nonsecure detention center for persons in need of supervision in violation of a local zoning ordinance in an area restricted to one-family occupancy. While defendants have made several arguments as to why their convictions were properly set aside by the Appellate Term, we find one so persuasive that we need not, and accordingly do not, reach their other contentions. Subdivision B of section 218-a of the County Law provides as follows: "Notwithstanding any other provision of law, each board of supervisors shall provide or assure the availability of conveniently accessible and adequate non-secure detention facilities, certified by the state division for youth, as resources for the family court in the county pursuant to article seven of the family court act, to be operated in compliance with the regulations of the division for youth for the temporary care and maintenance of alleged juvenile delinquents and persons in need of supervision held for or at the direction of a family court”. We interpret this subdivision as both authorizing and requiring a county to provide adequate facilities of the type described despite any conflicting law or local ordinance. In the instant case, there exists uncontroverted and indeed unchallenged evidence that defendant’s operation was established at the behest of the county, that its location has been approved by the county, and that it is funded by and through the county. The county having determined, as it is authorized to do by the statute, to fulfill its obligation through the vehicle of privately operated homes, that decision may not be overruled by application of a local zoning ordinance.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in Per Curiam opinion.

Order affirmed.


author: Gabrielli, J.

text:
    WDM Planning, Inc., Respondent, v United Credit Corporation, Appellant.
    Argued March 26, 1979;
    decided May 3, 1979

      POINTS OF COUNSEL

      Joseph L. Hutner and Robert J. Kaplan for appellant.
    I. The letter is not susceptible of a defamatory connotation without resort to impermissible innuendo. (Hays v American Defense Soc., 252 NY 266; Tracy v Newsday, Inc., 5 NY2d 134; James v Gannett Co., 40 NY2d 415.) II. It is not defamatory to ascribe nonpayment of a debt to a party. (Douglas v Weber, 106 Misc 338.) III. The "statement” that the majority of the court below said could be found in the letter is not false. (Tracy v Newsday, Inc., 5 NY2d 134.)

      Gerald L. Sobol, James P. Beggans, Jr., Robert A. Cantone and Peter B. Fallon for respondent.
    I. It was correctly held below that the writing in question was susceptible of a defamatory connotation and the factual question of how it was understood by the recipients must be left to the jury. (Mencher v Chesley, 297 NY 94; James v Gannett Co., 40 NY2d 415; Schneidman Heating v New York Plumbers Specialties Co., 238 App Div 318; Tracy v Newsday, Inc., 5 NY2d 134.) II. The letter goes beyond merely ascribing nonpayment of a debt. (Douglas v Weber, 106 Misc 338.) III. The statement which the court below found imputed in the letter, i.e., that plaintiff had not paid its debts, must be presumed on this appeal to be false. IV. Defendant-appellant is seeking a resolution prior to trial of the ancillary factual disputes raised by the pleadings. V. The dismissal of this cause of action would sanction the unethical business practices engaged in by defendant.
   OPINION OF THE COURT

Gabrielli, J.

The dispositive question on this appeal is whether a letter sent by defendant to certain customers of plaintiff could properly be found to be defamatory, or whether as a matter of law the letter is not defamatory. Plaintiff is an interior decorator and office space planner, and defendant is in the business of extending credit to businesses which assign to defendant their accounts receivable. Plaintiff purchased certain office equipment from Computer and Office Equipment Corp. for use in the offices of its clients. Although the equipment was shipped directly to the clients, the actual purchaser and the party billed for the equipment was plaintiff. Computer assigned its accounts receivable to defendant, which sent letters to all of Computer’s customers informing them of the assignment and instructing them to make all future payments directly to defendant. Similar letters were erroneously sent to those of plaintiff’s clients who had received equipment from Computer, even though the recipients did not owe any money to Computer and had in fact already paid plaintiff in full. Plaintiff alleges that it in turn had paid Computer all moneys then owing, but defendant contends that according to its records, all the payments had not been made to it. This factual dispute is irrelevant, however, as we have concluded that the letter itself is not defamatory and thus may not serve as the basis for an action in defamation.

The letter sent to plaintiff’s clients read as follows:

"Re: Computer & Office Equipment Corporation

"Gentlemen:

"We are the assignee of all the accounts receivable of the captioned corporation.

"Computer was the supplier of the goods referred to in the invoices listed on the enclosed statements.

"All payments on the listed invoices must be made directly to us, and should not be made either to Computer or to Wilke Davis Mitchell Planning, Inc. [plaintiff].

"This notice is given to you pursuant to section 9-502 of the New York Uniform Commercial Code. It is important that you comply with the provisions of this letter and the notice at the bottom of the enclosed statement to avoid potential double liability for the listed invoices.”

The alleged defamation contained in the letter is that the plaintiff is not paying its bills. Such an allegation might, of course, cause damage to plaintiffs business, since it is one in which the clients are in large part dependent upon the good faith and expertise of the decorator who agrees to fully decorate an office in return for a set fee. A statement, if in fact made, that the decorator is not paying for the equipment for which it has already been paid by its clients, could do considerable harm to the decorator’s professional reputation. The letter in question, however, makes no such statement. Plaintiff seeks to avoid this result by arguing that it makes such a statement by innuendo. We disagree.

The determination whether statements which are not defamatory on their face may in fact be defamatory because of the use of innuendo is one which must be made by the court (Tracy v Newsday, Inc., 5 NY2d 134). In the instant case, the challenged letter, although worded rather awkwardly, is merely a common announcement of a normal business practice, namely, the assignment of accounts receivable. The possible reasons for such an assignment are manifold, and such an announcement may not reasonably be taken as an indication that those involved are in financial difficulties. To allow such a letter to stand as the basis for an action in defamation would be to place an undue burden upon a type of financing essential to our economic system. That the defendant allegedly had no right to any moneys from plaintifFs clients does not change this result. While in a proper case such a letter might possibly serve as a part of the basis for another type of action, such as interference with contract or conversion, it is simply not defamatory.

Accordingly, the order appealed from should be reversed, with costs, the plaintiffs second cause of action should be dismissed, and the question certified should be answered in the negative.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Fuchsberg concur with Judge Gabrielli.

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Wilfredo Ocasio, Appellant.
    Argued March 29, 1979;
    decided May 3, 1979

      POINTS OF COUNSEL

      Jeffrey Thaler and William E. Hellerstein for appellant.
    The standards which were articulated by this court in People v Sandoval, governing the admissibility of evidence of prior convictions, are applicable to an alibi witness and, pursuant to those standards, the 1943 matricide and larceny convictions of appellant’s sole alibi witness were too remote to be relevant and had a disproportionately prejudicial effect on the jurors. (People v Sandoval, 34 NY2d 371; Third Great Western Turnpike Rd. Co. v Loomis, 32 NY 127; People v Davis, 44 NY2d 269; People v Caviness, 38 NY2d 227; People v Schwartzman, 24 NY2d 241, 396 US 846; Gordon v United States, 383 F2d 936, 390 US 1029; People v Heckstall, 58 AD2d 609; People v President, 47 AD2d 535.)

      Mario Merola, District Attorney (Carol Y. Kendrick and Billie Manning of counsel), for respondent.
    I. Appellant’s guilt was proven beyond a reasonable doubt. (People v Gruttola, 43 NY2d 116; People v Oden, 36 NY2d 382; People v Leonti, 18 NY2d 384.) II. The trial court correctly refused to forbid cross-examination as to the prior convictions of a defense witness. (People v Sandoval, 34 NY2d 371; People v Caviness, 38 NY2d 227; Gordon v United States, 383 F2d 936, 390 US 1029; People v Jackson, 39 NY2d 64; People v Davis, 44 NY2d 269;
      People v Schwartzman, 24 NY2d 241, 396 US 846; Luck v United States, 348 F2d 763; People v Brown, 72 NY 571; People v Freeman, 203 NY 267; People v Malkin, 250 NY 185.)
   OPINION OF THE COURT

Fuchsberg, J.

Wilfredo Ocasio, whose conviction for burglary stands affirmed by the Appellate Division, posits his appeal to us entirely on a claim that his trial was unfair because the Trial Judge refused to preclude the prosecution from attacking the credibility of his only witness by confronting her with a 32-year-old conviction of manslaughter for the fatal stabbing of her mother.

The case is simple. Arrayed against the defendant were the burglary victim and a lone identification witness who testified he saw the defendant depart the building in which the crime was committed immediately after it occurred. The defendant, who had no criminal record, took the stand to testify that he was not there at all. To support his alibi defense, he too was able to produce a witness — a woman of mature years, who, he testified, had been like a mother to him. But there was a fly in this ointment. The lady, it turned out, possessed a rather extensive criminal record punctuated by the old matricide.

When the People rested, and before the defense began to put on its own case, counsel, relying on the remoteness of that crime and what he terms its "disproportionately prejudicial” nature, asked the trial court to apply the standards articulated in People v Sandoval (34 NY2d 371) to preclude the prosecutor from resorting to the surrogate mother’s criminal record to attack her credibility. The Judge, expressing the opinion that Sandoval does not pertain to a witness who is not a defendant and that, in any event, in the exercise of the court’s discretion, the impeaching matter should be allowed, proceeded to reject the defendant’s application. For the reasons which follow, we find no warrant for disturbing the subsequent order of affirmance.

First, we emphasize, once again, that Sandoval did not change substantive standards for permissible cross-examination on prior offenses (People v Davis, 44 NY2d 269, 275; People v Schwartzman, 24 NY2d 241, 247, cert den 396 US 846; People v Sorge, 301 NY 198, 201-202; People v Webster, 139 NY 73, 84; People v Tice, 131 NY 651, 657-658; People v Duffy, 44 AD2d 298, 301 [Shapiro, J.], affd 36 NY2d 258, cert den 423 US 861). It sanctioned a procedure by which a Trial Judge may "make an advance ruling as to the use by the prosecutor of prior convictions or proof of the prior commission of specific criminal, vicious or immoral acts for the purpose of impeaching a defendant’s credibility” (People v Sandoval, supra, p 374). As our emphasis indicates, without gainsaying judicial responsibilities with regard to witnesses other than defendants, Sandoval focused on the rights of an accused.

Thus, in explaining why a prospective determination of the permissible scope of cross-examination on such matters was desirable, we there spoke of how fear of the probable effect of the introduction of testimony of this character often will cause a defendant to hide behind his or her privilege not to take the stand, thereby blotting out what may be the only available source of material testimony in support of the defense. In such a case, of course, a court’s quest for the facts may compel it to make a difficult decision as to whether it is more important for the jury to hear the defendant’s story than to know of the prior convictions (Luck v United States, 348 F2d 763; Gordon v United States, 383 F2d 936). How it answers that question is bound to be a crucial determinant in the election a defendant, guilty or innocent, must make between testifying or not testifying.

The Sandoval court also took pains to remark on the need for a "sensitive, informed reconciliation of the interests of the People and the rights of the defendant” (p 375). By way of illustration, among other things, it articulated concern that evidence of past conduct not be intended merely to demonstrate a propensity to commit the crime charged, obviously a prime hazard for a witness who is also a defendant (see Schaefer, The Suspect and Society, pp 67-71; Note, Procedural Protections of the Criminal Defendant — A Reevaluation of the Privilege Against Self-Incrimination and the Rule Excluding Evidence of Propensity to Commit Crime, 78 Harv L Rev 426, 441). For the risk to be avoided is that "the presumption that a defendant is innocent may go by the board solely because of a jury’s natural tendency to conclude, despite limiting instructions, that a defendant who has committed previous crimes is either the kind of person likely to have committed the crime charged or is deserving of punishment in any event (see People v Mayrant, 43 NY2d 236; People v Dickman, 42 NY2d 294, 297; Griswold, The Long View, 51 ABAJ 1017, 1021; McGowan, Impeachment of Criminal Defendants by Prior Convictions, 1970 Ariz State LJ 1; statistical support can be found in Kalven & Zeisel, The American Jury, pp 124, 126-130, 144-146, 160-162)” (People v Davis, 44 NY2d 269, 274, supra).

It must be at once clear that these factors, motivating the establishment of Sandoval’s procedural prescription, have particular and peculiar reference to the defendant witness. But Sandoval did not newly pronounce these concerns. As we have since had occasion to comment, they reflect "jurisprudential considerations whose existence has long been recognized” (People v Davis, supra, p 275). Indeed, it hardly needs saying that for a nondefendant witness, however discomfited by impeaching revelations, neither conviction nor vindication, imprisonment nor freedom, hangs in the balance. Nor does the nondefendant encounter the difficult choice between exposure of the evidence of prior misconduct and the practical prejudice that, no matter how the law shields against it, is nevertheless usually inescapably implicit in an accused’s failure to speak out in refutation of an accusation. In short, unlike the dilemma posed for a defendant, the focus of the impeachment of a witness is credibility, not guilt or innocence. It was these distinctions that called upon us to formulate the Sandoval procedure. For the same reasons, we take the opportunity presented by this case to make explicit that it is inapplicable to witnesses who are not defendants.

That is not to say, with respect to a witness who is not a defendant, that a trial court is precluded, in its sound discretion, from either entertaining an application for a ruling in limine on the permissible scope of cross-examination concerning a nonparty’s prior misdeeds, or, if it believes it best, from refusing to do so in advance of the time when the question presents itself in regular course. The point is that, as . to a nondefendant, a court is under no compunction whatsoever to deal procedurally with cross-examination on prior criminal, vicious or immoral acts in any way that departs from that employed in the regulation of cross-examination generally. Here, the Trial Judge, after correctly holding that the Sandoval dictate did not relate to the witness, nonetheless went on to decide the issue on the merits. That therefore raises the additional question of whether the trial court in its adverse ruling, and the Appellate Division, in sustaining it, abused their discretion as a matter of law (see People v Shields, 46 NY2d 764; People v Carmack, 44 NY2d 706).

However, the record is so far from indicating any abuse of discretion that it presents no reason for us to be other than brief on this issue. Though it otherwise might be argued that the matricide was an act of violence rather than dishonesty committed in the dim past, the crime did not stand in isolation. Part of a skein of convictions for multiple burglaries and larcenies, it covered too many years and too many jail sentences, though none were recent, to fault the Judge for concluding that in a case where the only independent support for defendant’s alibi was the witness, it was important the jury know who and what she was (People v Duffy, 36 NY2d 258; People v Sorge, 301 NY 198, 202 [Fuld, J.]). Suffice it to say that this also was consonant with the general rule that the scope of cross-examination in most instances is subject to the sound discretion of the Judge vested with responsibility for the management of a trial.

The order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur with Judge Fuchsberg.

Order affirmed.

       After the adverse ruling, defendant’s counsel called the witness and, presumably in anticipation that the District Attorney would do so, reacted to the court’s ruling by developing the fact of the prior matricide on his own direct examination.


text:
    Town of Huntington et al., Respondents, v Park Shore Country Day Camp of Dix Hills, Inc., Appellant.
    Argued March 20, 1979;
    decided May 1, 1979

      POINTS OF COUNSEL

      Arthur Goldstein for appellant.
    The arbitrary discrimination between two identical uses, one "for profit” and the other "not-for-profit” is unconstitutional. (Matter of Weinrib v Weisler, 33 AD2d 923, 27 NY2d 592; Janas v Town Bd. of Town of Fleming, 51 AD2d 473; Matter of Tarolli v Howe, 37 NY2d 865; Matter of Diocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508; Long Is. Univ. v Tappan, 281 App Div 771, 305 NY 893; Matter of Merrick Community Nursery School v Young, 11 Misc 2d 576; Westbury Hebrew Congregation v Downer, 59 Misc 2d 387; Mary Chess, Inc. v City of Glen Cove, 18 NY2d 205.)

      Ronald Glickman, Town Attorney (Frank J. Mack of counsel), for respondents.
    I. The Huntington Zoning Ordinance must be presumed constitutional and under its affirmative defense and counterclaim, defendant had the burden of proving unconstitutionality beyond a reasonable doubt. (Shepard v Village of Skaneateles, 300 NY 111; Wiggins v Town of Somers, 4 NY2d 215; Marcus Assoc. v Town of Huntington, 45 NY2d 501; Chase Manhattan Bank v Incorporated Vil. of Flower Hill, 29 AD2d 655, 28 NY2d 694; Lighthouse Shores v Town of Islip, 41 NY2d 7; Rodgers v Village of Tarrytown, 302 NY 115; Levitt v Incorporated Vil. of Sands Point, 6 NY2d 269; Williams v Town of Oyster Bay, 32 NY2d 78; Dauernheim, Inc. v Town Bd. of Town of Hempstead, 33 NY2d 468.) II. Defendant has failed as a matter of law to carry its burden of proving that the zoning ordinance provisions are unconstitutional. (Matter of New Morton Vil. Pool & Recreation Assn. v Town Bd. of Town of Oyster Bay, 21 Misc 2d 987; Incorporated Vil. of Muttontown v Friscia, 58 Misc 2d 912; Matter of Tarolli v Howe, 44 AD2d 896, 37 NY2d 865; Matter of Nelson v Pierce, 281 App Div 994; Matter of Kropf v Brooks, 17 AD2d 829; Marcus Assoc. v Town of Huntington, 57 AD2d 116; Town of Hempstead v Goldblatt, 9 NY2d 101.) III. Plaintiffs are entitled to the permanent injunction as prayed for in their complaint. (City of Utica v Ortner, 256 App Div 1039.) IV. Defendant’s arguments and authorities are neither persuasive nor pertinent. (Town of Pompey v Parker, 53 AD2d 125, 44 NY2d 805; Janas v Town Bd. of Town of Fleming, 51 AD2d 473.)
   OPINION OF THE COURT

Fuchsberg, J.

At issue in this case is the constitutionality of a zoning ordinance that permits private, nonprofit clubs but not commercial enterprises to operate tennis courts in a residential district.

Defendant Park Shore Country Day Camp owns 15 acres in an area zoned for one-acre residential lots. In 1959, the Town of Huntington’s Zoning Board of Appeals granted Park Shore’s application for a special exception permit to operate a day camp and nursery school on its property. Without obtaining a building permit or any further exception, in 1968 two tennis courts were constructed for the use of the camp. With no more leave, by 1974 12 more courts had been built and at that time, in addition to their availability to the camp, all 14 were put to commercial use for adults generally. In furtherance of its new venture, Park Shore commenced an advertising and promotional campaign designed to attract the general public to its tennis facilities.

The town then instituted this action to enjoin Park Shore from operating the tennis courts for commercial purposes. By way of counterclaim, Park Shore sought a declaration that the zoning ordinance was unconstitutionally discriminatory, essentially because a special exception provision did permit similar courts owned and maintained by nonprofit entities to be situated in residential districts. Specifically, it pointed to two private clubs that it claimed had facilities virtually identical to those the town now tried to enjoin. To advance its contention at trial, it introduced opinion evidence that, in proportion to the population, a greater number of tennis courts was needed to serve the town’s residents.

Under subdivision 9 of section 62-11.3 of the Huntington Zoning Ordinance, tennis courts, provided they are not operated as a business, may be located in residential districts as special exceptions if approved by the board. Moreover, subdivision 13 of the same section expressly permits tennis courts in such districts when associated with private schools, day camps and health camps. No approval pursuant to this provision was ever sought prior to the construction of the tennis courts here, and the management of Park Shore expressly refused to operate their tennis facility as a private club. When Park Shore belatedly applied to the board for special exception status in the spring of 1976, it nevertheless was granted permission to maintain 6 of the 14 courts for the use of the children enrolled in its day camp. Accordingly, the particular relief the town sought in its action was removal of the other 8 courts along with a permanent injunction against any future commercial use of the tennis courts. However, Special Term ruled otherwise. Adopting Park Shore’s contentions, it declared the zoning provision unconstitutional as applied, and denied the town’s request for an injunction. The Appellate Division unanimously reversed. For the reasons that follow, we agree with its determination.

Preliminarily, we must recognize that zoning ordinances, like all legislative enactments, are invested with an exceedingly strong presumption of constitutionality (Marcus Assoc. v Town of Huntington, 45 NY2d 501, 505). Park Shore, therefore, shouldered the very heavy burden of demonstrating beyond a reasonable doubt that the ordinance was violative of equal protection standards (see Wiggins v Town of Somers, 4 NY2d 215, 218). Viewed from another perspective, the classification scheme devised by the local legislature would have to be sustained if it could be said to be "reasonably related to some manifest evil which, however, need only be reasonably apprehended” (Lighthouse Shores v Town of Islip, 41 NY2d 7, 11). Thus, if on any interpretation of the facts known or reasonably to be perceived, the zoning measure falls within the embrace of the town’s authority to regulate property as a means of promoting the general welfare of the community (Town Law, § 261), it is insulated from attack.

Furthermore, it is a point too obvious to belabor that the separation of business from nonbusiness uses is an appropriate line of demarcation in delimiting permitted uses for zoning purposes. On that basis, business uses most certainly may be excluded from residential districts, whose primary purpose, almost by definition, is to provide an environment for "safe, healthful and comfortable family life rather than the development of commercial instincts and the pursuit of pecuniary profits” (Matter of Wulfson v Burden, 241 NY 288, 300-301). On the other hand, it is hardly less obvious that there are commercial enterprises whose activities will not necessarily undermine the values fostered by such districts, but, indeed, may even serve to complement and enhance the tenor of residential living. Flexibility to pursue such an accommodation is generally imparted to zoning authorities by provision for the granting of a special exception or special use permit.

This device operates by the "inclusion into the zoning pattern * * * of uses considered by the legislative body to be essentially desirable (or essential) to the community, its citizenry or to substantial segments thereof’, while protecting "against its location * * * without restrictions or conditions tailored to fit the special problems which the use presents” (3 Rathkopf, Law of Zoning and Planning [4th ed], p 54-1). It is designed to make clubs, recreational facilities, schools and hospitals, for example, eligible for special exception treatment, subject to the zoning board’s consideration of the particular needs of a neighborhood (see 2 Anderson, New York Zoning Law and Practice [2d ed], §§ 19.01-19.04). In effect, the town’s position is that the exception embodied in subdivision 9 of section 62-11.3 represents no more than the exercise of this well-established method of regulation, while, for its part, Park Shore, concentrating on the fact that two nonprofit private tennis clubs situated in the residential district are at present physically and functionally akin to its own commercial enterprise, argues that it is arbitrary, capricious and contrary to equal protection for the town to rely on the for-profit nature of a facility’s sponsorship as the critical difference on which eligibility for a special exception permit is to turn.

Park Shore’s assertion, which assumes that the impact of a particular use is a matter independent of the nature of the ownership, has too easy a ring. It is beyond dispute, for instance, that, even if all incidents of the use at this time are the same, there are characteristics of defendant’s venture that may render it, at least potentially, more burdensome to the residential neighborhood in which it is carried on than the same activity conducted by a nonprofit club (cf. 1 Anderson, New York Zoning Law and Practice [2d ed], §§ 8.20, 9.36). Illustrations come readily to mind. Regardless of the desirability of the activity conducted, it may be expected that an entity motivated by profit will, almost of necessity, be concerned with the securing, if not the aggrandizement, of those profits. In this pursuit, it may advertise and promote its availability in an effort to attract greater numbers of people, precisely what was done here. A commercial venture’s understandable goal of maximizing earnings by seeking peak utilization of its facilities, no matter how efficiently engineered, poses the threat of more crowds, more noise, more traffic, more transients and more of other forces disruptive of the serenity of the neighborhood (see Town of Los Altos Hills v Adobe Creek Props., 32 Cal App 3d 488, 516-517). And, in times of economic adversity, the owners of an unprofitable business are certainly much less likely to pump good money after bad in order to prevent a white elephant from becoming an eyesore than are members of a private club, who, moved by social rather than merely economic interest, may more readily consider adopting measures, even at some cost to themselves, to maintain the appearance of the property.

It is also reasonable to foresee that a private club conducted on a nonprofit basis, while providing a desirable recreational area, may in other ways avoid at least some of the drawbacks of commercial ownership. Because its members are more apt to think of long-term benefits rather than the immediate ones sought by the current patrons of a profit-oriented enterprise, its facilities are less likely to be overtaxed. And, because the ties between the club and its members will probably be stronger than those between a business and its customers an enhanced sense of permanency could promote concern for the welfare of the town as well.

In any event, it is by no means irrational for a legislative body to hold, and to act, on such apprehensions. In that connection, the constraints imposed by the separation of powers compel us to remember that "[i]t would not matter whether the [law] courts thought the legislation unwise, or that its purpose could better be achieved in another way”. (Matter of Albert Simon, Inc. v Myerson, 36 NY2d 300, 303). It is a legislature’s right and, particularly in matters of zoning and planning, its obligation as well to anticipate future problems and to enact measures to guard against them, though in fact the anticipated events may never come to pass.

It should not be surprising then that other tribunals, in and out of New York, have not been loath to uphold zoning practices that permit special exception uses in residential zones on condition that the activity not be conducted as a commercial or profit-making venture (see Matter of Tarolli v Howe, 37 NY2d 865 [domiciliary care facility denied special exception because it violated condition that it be "not for gain”]; Matter of Nelson v Pierce, 281 App Div 994 [private golf club permitted "except where the principal activity is one customarily carried' on for gain”]; McCarter v Beckwith, 247 App Div 289, affd 272 NY 488 [bathing beach special exception revoked for violation of proscription on "any activity commonly conducted as a business”]; Village of East Hampton v Mulford, 188 Misc 1037 [riding academy violated ordinance when “carried on as a gainful business”]; see, also, Shady Grove v Parish of Jefferson, 203 So 2d 869 [La] [exclusion of commercial tennis courts]; Town of Los Altos Hills v Adobe Creek Props., 32 Cal App 3d 488, supra [exclusion of commercial recreation park]; Hart Appeal, 410 Pa 439 [exclusion of commercial swimming pool]). Nor have courts been unwilling to enforce strict compliance with the noncommercial requirement no matter the desirability of the activity or the relatively small disruption it might occasion (see Incorporated Vil. of Muttontown v Friscia, 58 Misc 2d 912 [Wachtler, J.]).

Seen in this context, the Huntington ordinance is neither unusual nor unreasonable in distinguishing between tennis courts commercially operated and those operated by a "[private club * * * [whose] chief activity is not a service customarily carried on as a business” (Huntington Town Code, § 62-11.3, subd 9). Consequently, it cannot be said that the defendant has met the difficult burden of proving that, in its enactment of the exception, the town was acting other than in a manner rationally related to the preservation and fostering of the values of a residential district (see McCarter v Beckwith, 247 App Div 289, 293, supra; cf. Village of Belle Terre v Boraas, 416 US 1, 9).

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

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur with Judge Fuchsberg.

Order affirmed.

      . Defendant, which continues to operate its private nursery school and day camp, did not claim that the zoning ordinance is confiscatory or otherwise precludes the use of its property for a purpose to which it is readily adaptable. Neither did it contend that there was any discrimination in the enforcement of the zoning ordinance vis-ávis other commercial tennis enterprises.

      . As uses specially permitted by the Zoning Board of Appeals, this subdivision authorized the location of a "[p]rivate club * * * private playground, park or similar outdoor recreational facility, or lodge in a Residence District or Business District provided: (a) the chief activity is not a service customarily carried on as a business”.

      . At argument of this appeal we learned that pursuant to amendments to section 62-11.3 enacted in July, 1977 and May, 1978, the Huntington Zoning Ordinance now disables the board from exercising its previous power to grant special exceptions to private clubs or similar outdoor recreational facilities in a residentially zoned district. Our decision in this case, however, makes it unnecessary for us to consider either the effect or any possible retroactive application of these amendments.


text:
    The People of the State of New York, Respondent, v Frank Fea, Appellant.
    Argued March 27, 1979;
    decided May 3, 1979

      POINTS OF COUNSEL

      Jacob R. Evseroff and Bennett M. Epstein for appellant.
    I. Bronx County lacked territorial jurisdiction to prosecute appellant for acts allegedly occurring in other counties. (Matter of Steingut v Gold, 54 AD2d 481, 42 NY2d 311.) II. The joinder of counts relating to two separate and distinct incidents was improper and the trial court erred in refusing to grant separate trials and in refusing to instruct the jury to consider the charges separately. (People v Fiore, 34 NY2d 81; People v Lombardi, 20 NY2d 266; People v Peterson, 42 AD2d 937, 35 NY2d 659; People v Hayden, 37 AD2d 945.) III. Appellant’s conviction in the Mazza case (counts three through five) were tainted by illegal wiretaps. (Berger v New York, 388 US 41; United States v Giordano, 416 US 505; United States v Marion, 535 F2d 697; Matter of Nigrone v Murtagh, 46 AD2d 343, 36 NY2d 421; People v Brenes, 42 NY2d 41; United States v Kalustian, 529 F2d 585; United States v Kerrigan, 514 F2d 35; People v Pieri, 69 Misc 2d 1085; United States v Cafero, 473 F2d 489, 417 US 918.) IV. The court below erred in refusing to grant a hearing on several aspects of appellant’s motion to set aside the verdict.

      Mario Merola, District Attorney (Steven R. Kartagener and Alan D. Marrus of counsel), for respondent.
    I. Appellant’s guilt of assaulting Louis Brescia on October 28, 1974 and of assaulting Harold Mazza and Paul Zerbo on February 3, 1975 was established beyond a reasonable doubt by overwhelming evidence. (People v Williams, 6 NY2d 18; People v Gruttola, 43 NY2d 116; People v Regina, 19 NY2d 65.) II. Pursuant to CPL 20.40 (subd 2, par [c]) Bronx County had the requisite geographical jurisdiction to prosecute appellant for his assaults on Harold Mazza and Paul Zerbo, which assaults occurred in Rockland County. (People v Tullo, 34 NY2d 712; Matter of Murtagh v Leibowitz, 303 NY 311; People v Hetenyi, 277 App Div 310, 301 NY 757; People v Quill, 2 Misc 72, 3 AD2d 717; People v Brill, 82 Misc 2d 865; Matter of Steingut v Gold, 54 AD2d 481, 42 NY2d 311.) III. The trial court’s discretionary determination to deny appellant’s severance motion, affirmed by the court below, was proper. (People v Cobenais, 39 NY2d 968; People v Peterson, 42 AD2d 937, 35 NY2d 659; People v Belge, 41 NY2d 60; People v Crimmins, 38 NY2d 407; People v Payne, 35 NY2d 22; United States ex rel. Tarallo v La Vallee, 433 F2d 4, 403 US 919; Johnson v United States, 356 F2d 680, 385 US 857; People v Jenkins, 39 NY2d 969; United States v

      Lotsch, 102 F2d 35, 307 US 622; People v Lombardi, 20 NY2d 266.) IV. The court below properly exercised its discretion in limiting the issues to be raised at the posttrial hearing on appellant’s motion to set aside the verdict and in no way prejudiced appellant. (People v Crimmins, 38 NY2d 407; People v Slaughter, 37 NY2d 596.) V. Because not a scintilla of wiretap evidence was introduced at appellant’s trial, this court need not consider whether certain conversations between Fea and Prunty were lawfully intercepted; even assuming illegality, the live testimony of Harold Mazza and Paul Zerbo was free of any taint. (Wong Sun v United States, 371 US 471; People v Mendez, 28 NY2d 94, 404 US 911; People v Scharfstein, 52 Misc 2d 976; United States v Houltin, 566 F2d 1027; Smith v United States, 324 F2d 879, 377 US 954; Michigan v Tucker, 417 US 433; People v Almestica, 42 NY2d 222; People v La Rocca, 37 NY2d 927; United States v Karathanos, 531 F2d 26.)
   OPINION OF THE COURT

Chief Judge Cooke.

The question presented upon this appeal is whether, pursuant to CPL 20.40 (subd 2, par [c]), Bronx County had territorial jurisdiction to indict and convict defendant of assault in the second degree and assault in the third degree arising out of vicious beatings he inflicted in Rockland County.

The events leading up to this prosecution had their inception in April, 1974. At that time, Harold Mazza, a person who had previously been involved in a number of illicit enterprises, joined two others in organizing a partnership known as the McLean Painting Company in the City of Yonkers, Westchester County. Soon after formation, the firm was engaged as a subcontractor at a construction site in Westchester. Because the general contractor was tardy in making progress payments to its subcontractors, Mazza soon encountered difficulty meeting his rather substantial weekly payroll. His unsavory past precluded the use of traditional banking channels to secure interim financing, compelling Mazza to resort to alternative sources of financing to meet his weekly obligations.

An acquaintance, Paul Zerbo, sympathized with Mazza’s plight and informed him that defendant would be able to provide him with a short-term loan enabling him to meet his payroll. At a meeting in The Bronx, defendant offered Mazza a $15,000 loan, which Mazza was to repay at a rate of $750 per week until $18,000 was returned to Fea. Defendant stated that either he or an associate would collect the weekly installments at Mazza’s Yonkers office. Four payments were made when Mazza again found himself in need of more funds to meet the company payroll. A new $10,000 loan was arranged in The Bronx under the condition that Mazza would pay $200 per week interest on the additional sum until the entire principal was repaid. Defendant again informed Mazza that he would collect the weekly payments at his Yonkers office but if no one arrived by the close of business Friday, Mazza was to bring the installment to defendant at the Rosedale bar in Bronx County.

In the months that followed, 9 or 10 weekly installments were made, approximately half of them in The Bronx. Two or three of these payments were made by checks drawn on insufficient funds. By November, 1974, McLean Painting was in economic extremis and unable to meet any of its obligations, including those to defendant. Apparently fearful of the consequences of default, Mazza absented himself from his Yonkers office for the next three months. During that period, defendant asked Zerbo to relay a message to Mazza that defendant was looking for him. Defendant finally located Mazza on February 3, 1975.

That morning, as Mazza and Zerbo arrived at a construction site in Westchester County, they noticed defendant and an associate waiting for them. The pair were intercepted and ordered to follow defendant’s car over the Tappan Zee Bridge into Rockland County, where Mazza and Zerbo were forced at gunpoint to enter a deserted bar. Once inside, the two were savagely beaten by defendant and his associate. At various intervals, Mazza was informed in most forceful terms that the consequences would be even greater should he continue to fail to meet his obligations in the future.

An ongoing investigation by the Bronx County District Attorney’s office into defendant’s activities soon revealed his role in the Rockland County assaults. Both Mazza and Zerbo agreed to co-operate and this prosecution resulted. The defendant was subsequently indicted for the assaults against Mazza and Zerbo occurring in Rockland County as well as a separate assault against a different victim in Bronx County.

During the course of trial, defendant moved that those counts relating to the Rockland County assaults be dismissed on the ground that Bronx County had no territorial jurisdiction over the transactions. Although expressing grave doubt over the power of Bronx County to prosecute defendant for assaults allegedly committed outside that county’s borders, the court reluctantly agreed to charge the jury that, to convict defendant, "they must find the fact that [the assaults were] likely to have a particular effect in Bronx County” beyond a reasonable doubt. Although territorial jurisdiction need not be proved beyond a reasonable doubt (People v Moore, 46 NY2d 1, 6), under no view of the evidence may Bronx County be deemed a proper forum within the meaning of CPL 20.20 (subd 2, par [c]). Therefore, we are constrained to reverse so much of the order of the Appellate Division which affirmed the judgment of conviction relating to the Rockland County assaults and to dismiss the counts of the indictment pertaining to those assaults.

At common law, the power of the sovereign to enact laws proscribing conduct and attaching criminal liability to the commission of the prohibited acts extended only within the confines of its territory. The theory underlying the common-law rule stems from the concept that the accused had a right to be tried by a jury drawn from the neighborhood where the acts giving rise to criminal liability took place (see People v Goldswer, 39 NY2d 656, 659-660). Of necessity, certain exceptions to the early common-law territorial theory of jurisdiction emerged. Thus, in instances where conduct perpetrated outside the jurisdiction was done with the intent to obstruct the governmental affairs of the sovereign and such extraterritorial conduct actually produced that effect, it could prosecute the acts as if actually committed within its borders (see Strassheim v Daily, 221 US 280, 285; Hanks v State, 13 Tex App 289; cf. Restatement 2d, Foreign Relations Law of United States, § 33). This common-law exception to the strict territorial theory of jurisdiction was the precusor of the injured forum and protective jurisdiction sections of the Criminal Procedure Law (see CPL 20.20, subd 2; 20.40, subd 2).

Absent statutory exception, in this State the territorial unit for criminal prosecutions is the county (Matter of Murtagh v Leibowitz, 303 NY 311; People v Hetenyi, 277 App Div 310, affd 301 NY 757). The Legislature has, however, created a number of statutory exceptions to strict territorial principles of geographic jurisdiction (e.g,, CPL 20.20, subd 2, pars [a], [d]; 20.40, subd 2, pars [a], [b] [adopting the objective territorial or injured forum theory of jurisdiction]; see 52 St John’s L Rev 137, 162, n 117). Relevant to this case is the adoption of the protective theory of jurisdiction, which is premised on the postulate that the jurisdiction of the State, or one of its counties, may be exercised over conduct outside its geographical borders where such conduct was intended to have a deleterious effect within its territory (see Commission Staff Comment to Proposed CPL 10.20, subd 3, p 41 [now CPL 20.20]; cf. United States v Pizzarusso, 388 F2d 8, 10-11, cert den 392 US 936; Jurisdiction with Respect to Crime, 29 Am J Inter L 435, 543 [Special Supp]).

As presently drafted, the statute adopting the protective theory of county jurisdiction over criminal offenses (CPL 20.40, subd 2, par [c]), is rather limited in scope (see Matter of Steingut v Gold, 42 NY2d 311). The statute provides that a county may prosecute an offense occurring outside its borders when:

"Even though none of the conduct constituting such offense may have occurred within such county:

* * *

“(c) Such conduct * * * was likely to have, a particular effect upon such county or a political subdivision or part thereof, and was performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein”.

The definition of "particular effect” within a county is provided by CPL 20.10 (subd 4): "When conduct constituting an offense produces consequences which, though not necessarily amounting to a result or element of such offense, have a materially harmful impact upon the governmental processes or community welfare of a particular jurisdiction, or result in the defrauding of persons in such jurisdiction, such conduct and offense have a 'particular effect’ upon such jurisdiction.”

The People maintain that the Rockland County assaults were committed with the intent to produce a materially harmful impact upon the community welfare of Bronx County by compelling Mazza to resume usurious loan payments in The Bronx. However, even assuming that the attacks could be deemed to have been intended to compel payment in Bronx County alone, that conduct would not have the "materially harmful impact” presently contemplated by the statute. Extraterritorial jurisdiction is to be applied only in those limited circumstances where the out-of-jurisdiction conduct is violative of a statute intended to protect the integrity of the governmental processes or is harmful to the community as a whole (see Matter of Steingut v Gold, 42 NY2d 311, 317, supra; People v Puig, 85 Misc 2d 228, 233; but see People v Corsino, 91 Misc 2d 46).

For example, an attempt in county B to bribe an executive officer of county A to effectuate a decision favorable to the offeror’s interests in county B, if accomplished, would have a perceptible detrimental impact upon the governmental integrity of county A and would support that county’s exercise of territorial jurisdiction over the bribe offeror. Such conduct would clearly be intended to have a dramatic effect upon the governmental processes of county A (compare Matter of Steingut v Gold, supra). A variation of Professor Denzer’s example (Denzer, Practice Commentary, McKinney’s Cons Law of NY, Book 11 A, CPL 20.40, p 55) aptly illustrates a situation in which a county could assert its protective jurisdiction on the ground that the intended conduct, if brought to its logical conclusion, would have a materially harmful impact upon the community welfare of the county: if a person were to attempt to blow up a dam in Putnam County near the Westchester County line, knowing or intending that his act would cause substantial flooding in Westchester County, either Westchester or Putnam could prosecute the conduct. If the dam were destroyed, Westchester County’s jurisdiction would lie as it would be an injured forum. However, if for some reason the charge did not ignite, Westchester could assert its protective jurisdiction over the transaction, for that theory looks to the intent of the actor rather than the consequences of his act (see, also, 1 Waxner, New York Criminal Practice, par 1.2[3], pp 1-45 to 1-47).

In both of these examples, the particular effect intended by the criminal conduct is to cause a materially harmful impact, not to any particular individual, but rather to the well being of the community as a whole. Moreover, the conduct was intended to impact upon one particular jurisdiction. Thus, the county in which the criminal conduct is intended to result may properly prosecute the actor if only to protect the integrity of its governmental processes or the welfare of the citizens. Here, in contrast, any impact upon Bronx County arising out of the assaults committed in Rockland County is amorphous at best. The result intended to be effected by the assaults was not intended to cause harmful impact upon the community as a whole, but rather only upon the recalcitrant debtor. Indeed, defendant’s sole motivation in beating Mazza was the simple desire to compel repayment of the debt. Whether he was repaid in Bronx County, Westchester County or elsewhere was at most incidental, the place of payment not being a constituent element of the motive. The interest of Bronx County in prosecuting these assaults was nonexistent.

The remaining arguments raised by the defendant have been considered and determined to be without merit.

Accordingly, the order of the Appellate Division should be modified by reversing and vacating the conviction and sentence based upon the Rockland County assaults and dismissing those counts of the indictment pertaining thereto and, as so modified, affirmed.

Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur with Chief Judge Cooke.

Order modified in accordance with the opinion herein, and, as so modified, affirmed.