text:
    In the Matter of the County of Suffolk, Appellant, Relative to Acquiring Title to Real Property Known as Van Bourgondien Nurseries, in the Town of Babylon. C. J. Van Bourgondien, Inc., et al., Respondents.
    Argued June 6, 1979;
    decided July 9, 1979

      POINTS OF COUNSEL

      Howard E. Pachman, County Attorney (Harvey B. Besunder of counsel), for appellant.
    I. Jurisdiction of Court of Appeals. (Matter of Great Atlantic & Pacific Tea Co. v Kiernan, 42 NY2d 236; First Westchester Nat. Bank v Olsen, 19 NY2d 342; Matter of Ray A. M., 37 NY2d 619; Scarnato v State of New York, 298 NY 376.) II. The evidence does not support a finding that the subject parcel constitutes a special purpose property. (Matter of Great Atlantic & Pacific Tea Co. v Kiernan, 42 NY2d 236; People ex rel. Hotel Paramount Corp. v Chambers, 298 NY 372; Van Kleeck v State of New York, 18 NY2d 897; Matter of Erlanger, 237 NY 159; Spano v State of New York, 22 AD2d 757; Matter of City of New York [Lincoln Sq. Slum Clearance Project — Schnurmacher Corp.], 15 AD2d 153, 16 NY2d 497.) III. The main residence is not a specialty and should be valued through use of the market data approach. (Wright v State of New York, 33 AD2d 616; McKeon v State of New York, 31 AD2d 566; Matter of Great Atlantic & Pacific Tea Co. v Kiernan, 42 NY2d 236; Matter of Rochester Urban Renewal Agency v Willsea Works, 62 AD2d 1169; McDonald v State of New York, 52 AD2d 721; Matter of City of Rochester v Toth, Inc., 59 AD2d 1020; Waldenmaier v State of New York, 33 AD2d 75; Ridgeway Assoc. v State of New York, 32 AD2d 851.) IV. The greenhouse and plants do not constitute fixtures. (Pascack Motel v State of New York, 40 AD2d 919; City of Buffalo v Clement Co., 28 NY2d 241; Marraro v State of New York, 12 NY2d 285; Potter v Cromwell, 40 NY 287; Voorhees v McGinnis, 48 NY 278; Matter of City of New York [Merrimaker Corp.], 51 AD2d 147.)

      George B. Costigan, Jr., for respondents.
    I. Valuation of the greenhouse complex as a specialty. (Matter of Rochester Urban Renewal Agency [Patchen Post], 45 NY2d 1; United States v Miller, 317 US 369; Sparkill Realty Corp. v State of New York, 254 App Div 78, 279 NY 656; Matter of County of Nassau [Colony Beach Club of Lido], 43 AD2d 45, 39 NY2d 958; G.R.F., Inc. v Board of Assessors of County of Nassau, 41 NY2d 512; Matter of Merrick Holding Corp. v Board of Assessors of County of Nassau, 45 NY2d 538; People ex rel. Hotel Paramount Corp. v Chambers, 298 NY 372; McDonald v State of New York, 42 NY2d 900; Dormitory Auth. of State of N. Y. v 59th St. & 10th Ave. Realty Corp., 51 AD2d 953, 41 NY2d 1037; Matter of Great Atlantic & Pacific Tea Co. v Kiernan, 42 NY2d 236.) II. The greenhouses and related equipment are also compensable as fixtures. (Marraro v State of New York, 12 NY2d 285; Rose v State of New York, 24 NY2d 80; Matter of City of New York [Allen St.], 256 NY 236; Matter of City of New York [Merrimaker Corp.], 51 AD2d 147; Kelder v State of New York, 22 AD2d 999.)
   OPINION OF THE COURT

Meyer, J.

The County of Suffolk condemned the 19-acre parcel of property on which the Van Bourgondien family had conducted a flower-growing nursery business for over half a century. The property included a large greenhouse complex and several residences. The question before us is the proper method of valuing the property. Ordinarily a landowner is only entitled to the market value of his property in its highest and best use. However if a parcel is sufficiently unique it is a specialty and is valued by the so-called summation approach, at land value plus the replacement cost of improvements less depreciation. Special Term held that the property was not a specialty, that the highest and best use of the land was for residential development, and that the greenhouse complex was inconsistent with this use and therefore had no value. The Appellate Division modified, on the law and the facts, holding that the property was a specialty and should be valued accordingly. Upon remand to Special Condemnation Term the parties stipulated the reproduction cost less depreciation value of the property. The county now appeals from the amended order and decree fixing the award by the summation approach. We agree that the property is a specialty and, therefore, affirm.

The condemned parcel, which consisted of 18.9 acres in western Suffolk (Town of Babylon) zoned Residential C, was improved with a greenhouse complex, a main residence, and three smaller houses. The first greenhouse was constructed in 1920 and at the time of condemnation claimants had 125,000 square feet of land under glass. The main residence was used as a headquarters in the running of the business and was equipped with special instruments so that the family could constantly monitor the atmospheric conditions in the greenhouses.

In May of 1972 claimants contracted to sell the property for $725,000, contingent upon the rezoning of the land to multiple residence. The contract, which reserved to them the right to remove buildings, equipment and plants from the premises, terminated when the zoning application was withdrawn. A subsequent contract was terminated for like reason and the county’s appraiser testified that there was no reasonable probability that multiple residence zoning would be granted.

On December 9, 1974 title to the property vested in the county. Claimants continued business on the property until September, 1975, vacating it entirely on November 2, 1975. At trial the county valued the property at $497,500, contending that its highest and best use was for residential development and that claimants had attempted to sell the property because high land taxes made the business no longer feasible in western Suffolk. There was testimony that although no wholesale flower business had been constructed or purchased as such in western Suffolk during at least the preceding five years, a number had been sold during that period for residential development. However, the evidence indicated that claimants’ business was improving, gross sales having been $216,-000 in 1973, while in 1974 they reached $311,000 and were, for the 8 to 10 months of 1975 that claimants had use of the property, $306,000. Special Condemnation Term valued the property at $507,000, holding that its best use was for residential development and attributing no value at all to the greenhouse complex. The Appellate Division having modified, the question which confronts us is whether claimants’ nursery property is to be valued as a specialty.

The general rule is that when land is taken in eminent domain, its owner is to be compensated for the market value of the property in its highest and best use (Matter of Rochester Urban Renewal Agency [Patchen Post], 45 NY2d 1). However, as we have previously noted, occasions arise in which property is so unique or so seldom traded that market value is not an adequate basis for compensation (id., at pp 9-10; see, also, 1 Orgel, Valuation under Eminent Domain [2d ed], § 40). Article I (§ 7, subd [a]) of the New York State Constitution mandates that "Private property shall not be taken for public use without just compensation.” Therefore where a property is so unique as to constitute a specialty, the owner must be compensated by adding to its land value the replacement cost of the property and subtracting from that sum depreciation (Matter of Rochester Urban Renewal Agency [Patchen Post], supra).

What constitutes a specialty is defined in Matter of County of Nassau (Colony Beach Club of Lido), 43 AD2d 45, affd 39 NY2d 958. There the Appellate Division enunciated (43 AD2d, at p 49) four criteria of a specialty: "(a) The improvement must be unique and must be specially built for the specific purpose for which it is designed; (b) There must be a special use for which the improvement is designed and the improvement must be so specially used; (c) There must be no market for the type of property * * * and no sales of property for such use; and (d) The improvement must be an appropriate improvement at the time of the taking and its use must be economically feasible and reasonably expected to be replaced. ” (Emphasis in original.) In Matter of Great Atlantic & Pacific Tea Co. v Kiernan (42 NY2d 236, 240), in the context of a tax certiorari proceeding, we added a further refinement to the element of uniqueness: "a specialty may perhaps be best defined as a structure which is uniquely adapted to the business conducted upon it or use made of it and cannot be converted to other uses without the expenditure of substantial sums of money”. (Emphasis in original.) Application of these criteria to the subject property requires the conclusion that it is a specialty.

The county contends that claimants’ greenhouses are not unique because they can be purchased on the open market. However the requirement of uniqueness goes to the function of the building, not to the availability of its components. Claimants’ greenhouses were specially built for the growth of plants and flowers and, the evidence establishes, would have had to be removed or destroyed rather than be readily converted in place to other uses. Clearly, they are unique structures.

The second criterion is that the unique improvement actually be used for its specialized purpose. If the landowner has abandoned the specialized use of the building, it is not a specialty. Here the Van Bourgondien family conducted a wholesale flower nursery on the property for more than 50 years and continued to do so until required to vacate as a result of the condemnation.

The third requirement is that there be no market for the property and no sales for such use. Again the county contends that since greenhouses can be purchased in the market, claimants’ property is not a specialty. However, the question is not whether a particular improvement can be purchased in the market, but whether there is an existing market for the property as a whole, including the greenhouses. Had there been any purchase of nursery property in order to run a ñower-growing business, there might be some basis for estimating the market value of the claimants’ premises. However, as the county itself points out, in the past five years no one has purchased a fully equipped property to run a flower-growing business in western Suffolk, and other such properties have been converted to residential use. Thus, there is no market by which to judge the value of claimants’ property, and the third requirement is met (see 4 Nichols, Eminent Domain, § 12.32, subd [1]).

The last requirement is that at the time of the taking the improvement be appropriate both physically and economically. Physical appropriateness requires only that the structural improvements are suitable to the site (People ex rel. Hotel Paramount Corp. v Chambers, 298 NY 372, 375). Of that there is no dispute. Economic appropriateness means simply that the use must be economically feasible and reasonably expected to be replaced. The county argues that high taxes made it no longer feasible for claimants to run a flower-growing business in western Suffolk, pointing out that no new flower-growing business has started up in western Suffolk in the past five years, while many existing businesses have sold their property and moved further east on Long Island. The argument misreads the Colony (43 AD2d 45, affd 39 NY2d 958, supra) case.

In Colony the claimant owned a beach club at Lido Beach on the south shore of Long Island which occupied but two thirds of the land. The court’s conclusion that the beach club was not an appropriate use at its existing location and, therefore, not a specialty was apparently predicated on both functional obsolescence and underutilization of the land. Indeed, none of the surrounding beach-front land had been developed commercially in the preceding 10 years; rather it was then being developed for single-family residence. Thus the Colony record warranted a conclusion of inappropriateness, both physically and economically.

Here at the time of taking, claimants’ business was a profit-making operation and was in no danger of insolvency. If anything, the business was on the upswing. That eastern Long Island may have provided a better location from a tax standpoint is irrelevant so long as the purpose to which the land was being put had not become outmoded or unworkable. Furthermore, as the county’s expert conceded the residential real estate market had been stagnant for some 18 months before the taking date and on that date was "poor”. Claimants’ use of the land was appropriate economically as well as physically.

Two other matters require discussion. The county claims that the fact that the main residence had been equipped and wired so that the boiler system and the temperature and ventilation of the greenhouses could be monitored did not warrant valuing it as a specialty and that the greenhouses are personal property and therefore should not have been considered in estimating the value of the property. Though if the main residence were considered separately its "special features” would not warrant use of the summation approach (Matter of Great Atlantic & Pacific Tea Co. v Kiernan, 42 NY2d 236, 240, supra), the fact of the matter is that it was an integral part of nursery complex. There being contiguity, unity of use and unity of ownership, it was properly valued in the amended decree (Erly Realty Dev. v State of New York, 43 AD2d 301, mot for lv to app den 34 NY2d 515; Strong v State of New York, 38 AD2d 241; see Matter of Long Beach Urban Renewal, 67 Misc 2d 259). With respect to the greenhouses, whether they be considered buildings or fixtures, they had been annexed to the land with the intention of permanence and would lose substantial value if removed. Moreover, the county agent advised claimants that anything in the ground had been taken by the county. The greenhouses are, therefore, compensable as fixtures (see Rose v State of New York, 24 NY2d 80; Marraro v State of New York, 12 NY2d 285; Matter of City of New York [Merrimaker Corp.], 51 AD2d 147, mot for lv to app den 39 NY2d 710). So too are the plants (Kelder v State of New York, 22 AD2d 999).

Accordingly, the amended order and decree of Special Condemnation Term should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur; Judge Fuchsberg taking no part.

Amended order and decree affirmed, etc.

       Ironically, in some instances a specialty may be economically feasible despite tax increases precisely because it has no competitors nearby (Matter of City of New York Maxwell], 15 AD2d 153, 171).


source: Caselaw Access Project

author: Chief Judge Cooke.

license: Public Domain

text:
    Guardian Loan Company, Inc., Plaintiff, v Bernard G. Early et al., Respondents, and Milton Berlin, Appellant.
    Argued June 7, 1979;
    decided July 9, 1979

      POINTS OF COUNSEL

      Joseph D. Stim, P. C., for appellant.
    I. Is discretionary relief available under CPLR 5240 to set aside an otherwise valid Sheriff’s sale after the deed has been delivered. (Murphy v Grid Realty Corp., 73 Misc 2d 1071; Matter of Bachner, 82 Misc 2d 107; Wandschneider v Bekeny, 75 Misc 2d 32; Concord Landscapers v Pincus, 41 AD2d 759.) II. Inadequacy of price alone is not a sufficient basis to set aside an otherwise valid Sheriffs sale. (Levine v Berlin, 46 AD2d 902; Matter of Bachner, 82 Misc 2d 107; Matter of Superintendent of Banks of State of N. Y., 207 NY 11; Serial Fed. Sav. & Loan Assn. of N. Y. City v Crescimanno, 35 AD2d 561, 27 NY2d 803, 1005; Misiaszek v Roberts, 211 App Div 417; State Realty & Mtge. Co. v Villaume, 121 App Div 793; Housman v Wright, 50 App Div 606; American Ins. Co. v Oakley, 9 Paige Ch 259.)

      Rudolph H. Cartier, Jr., for respondents.
    I. The decisions below setting aside the Sheriffs execution sale in the interest of justice pursuant to CPLR 5240 are correct and should be affirmed. (Levine v Berlin, 46 AD2d 902; Community Capital

      Corp. v Lee, 58 Misc 2d 34; Concord Landscapers v Pincus, 41 AD2d 759.) II. The decisions below finding that inadequacy of price when combined with inadvertence, ignorance or mistake, may be sufficient basis for an equitable ruling setting aside the Sheriff’s execution sale in the interest of justice are correct and should be affirmed. (Levine v Berlin, 46 AD2d 902; Matter of Bachner, 82 Misc 2d 107; Matter of Superintendent of Banks of State of N. Y., 207 NY 11; Serial Fed. Sav. & Loan Assn. of N. Y. City v Crescimanno, 35 AD2d 561; State Realty & Mtge. Corp. v Villaume, 121 App Div 793; Portnoy v Hill, 10 Misc 2d 1004; Wright v Caprarella, 205 App Div 559; Concord Landscapers v Pincus, 41 AD2d 759.)
   OPINION OF THE COURT

Chief Judge Cooke.

We determine here whether the provisions of CPLR 5240 may be utilized to set aside a lawfully consummated Sheriff’s sale once the real property has been struck off and a deed delivered to a stranger to the underlying judgment. We hold that while the statute vests the court with broad discretion to prevent abuse in the use of the enforcement procedures of CPLR article 52, it furnishes no grounds for relief once those procedures have been carried out in accordance with law.

Plaintiff, not a party to this appeal, obtained a judgment against respondents Early for $1,268.93 which was docketed in the office of the Suffolk County Clerk on July 14, 1976. After respondents had failed to satisfy the judgment, plaintiff delivered a real property execution, with notice to respondents, to the Suffolk County Sheriff for the sale of respondents’ residence. The sale was duly advertised for May 23, 1977 in accordance with CPLR 5236 (subd [c]) but was adjourned twice at the request of respondents (see CPLR 5236, subd [d]). Finally, on August 1, 1977, the property was struck off to appellant Berlin, a stranger to the underlying judgment, for the sum of $3,020. Two days later, the Sheriff, after deduction of his proper fees, distributed the proceeds of the sale to judgment creditors who had filed executions and delivered a deed to the property to appellant.

This proceeding to set aside the sale was brought on by order to show cause. In support of their request for relief, respondents averred that on August 1, 1977 they had approximately $1,100 in cash — a sum which would have been inadequate to redeem the property prior to the sale — but were unable to reach the place of sale on time because of a flat tire. It was asserted upon information and belief that the property had a márket value of between $55,000 and $60,000 (later revised to $48,000) and was subject to a mortgage balance of approximately $9,000. In opposition, appellant disputed the value of the property and set forth an abstract of title showing an unsatisfied 1975 Federal tax lien in the amount of $5,688 plus interest as well as several prior unsatisfied liens totaling over $6,000. Supreme Court set aside the sale, relying on CPLR 5240. A divided Appellate Division affirmed (64 AD2d 689). We must now reverse.

The enactment of CPLR article 52 effected sweeping changes of both substance and procedure in the law relating to the satisfaction of money judgments. Nowhere were these changes more apparent than those with respect to the procedures involving the sale of real property (see Sale of Real Property Pursuant to an Execution under the CPLR, Tenth Ann Report of NY Judicial Conference, 1965, p 120). Perhaps the most striking change accomplished by the CPLR was the abolition of the debtor’s right of redemption upon sales to enforce money judgments (CPLR 5236). The Civil Practice Act had previously contained a number of rather complex provisions under which the judgment debtor or his creditors could redeem property after it had been sold upon execution (Civ Prac Act, §§ 758-763). It was thought that substantially higher prices could be realized upon execution sales were the right to redeem eliminated (see 6 Weinstein-Korn-Miller, NY Civ Prac, par 5236.02). While this rationale may not have been borne out in actual experience (see Community Capital Corp. v Lee, 58 Misc 2d 34, 35-36), the purchaser at a Sheriff’s sale now takes immediate title to the property and is placed in the same position as he would have been if the deed had been executed by the judgment debtor himself (see Hetzel v Barber, 69 NY 1, 10).

Any judicial sale, especially one involving the judgment debtor’s residence, is a tragic event. Debtors are often divested of their only real asset to satisfy a previous obligation, however small. In many instances, the family home is sold for substantially less than the debtor’s equity in it (see Concord Landscapers v Pincus, 41 AD2d 759, 760; Wandschneider v Bekeny, 75 Misc 2d 32). Even the very threat of a sale of a residence places enormous pressure on the debtor. This is particularly unfortunate where there are less drastic means by which a creditor may enforce his judgment (see, generally, CPLR 5231 [income execution]; CPLR 5232-5233 [levy and sale of personal property]). It is evident, however, that the Legislature was not unaware of this problem. For example, it has recently raised the homestead exemption, which provides that upon a judicial sale of the debtor’s principal place of residence, the first $10,000 of the proceeds representing the debtor’s equity may not be used in satisfaction of the judgment (CPLR 5205, subd [a]).

CPLR 5240 is perhaps the most practical method to protect judgment debtors from the often harsh results of lawful enforcement procedures. The statute provides: "The court may at any time, on its own initiative or the motion of any interested person, and upon such notice as it may require, make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure. Section 3104 is applicable to procedures under this article.” Designed to replace myriad provisions of the Civil Practice Act which often led to conflicting results (see 10 CarmodyWait 2d, NY Prac, § 64:434), CPLR 5240 grants the courts broad discretionary power to control and regulate the enforcement of a money judgment under article 52 to prevent "unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (Third Preliminary Report of the Advisory Comm on Practice and Procedure, 1959, p 314; see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5240:1, pp 451-452; Siegel, New York Practice, § 522).

Although on the whole judgment debtors have failed to take advantage of the protective provisions of CPLR 5240, in many instances the statute has been applied in an extremely beneficial manner in accordance with its stated purpose. By way of illustration, courts have restrained impending sales of residences on the ground that creditors could easily resort to less intrusive means to satisfy judgments (see Hammond v Econo-Car of North Shore, 71 Misc 2d 546; Holmes v W. T. Grant, Inc., 71 Misc 2d 486; Gilchrist v Commercial Credit Corp., 66 Misc 2d 791). In other cases, where there has been a showing that a judicial sale will not bring a representative price, the terms of the sale have been varied from those set forth in CPLR 5236 to safeguard the judgment debtor’s interest (see, e.g., Olsen v Robaey, 45 Misc 2d 33).

But while CPLR 5240 grants the courts broad discretionary power to alter the use of the procedures set forth in article 52, it has no application after a Sheriffs sale has been carried out and the deed delivered to the purchaser, at which time the use of the enforcement procedure will have been completed (see Matter of Bachner, 82 Misc 2d 107, 108; Murphy v Grid Realty Corp., 73 Misc 2d 1071, 1072-1073; cf. Kaplan v Supak & Sons Mfg. Co., 46 Misc 2d 574, 578). After the sale has been consummated, the interests of persons other than the judgment debtor and creditor are implicated. Title to property has been transferred, often to a stranger to the judgment who relies on the regularity of the sale and proceeds accordingly. To permit these sales to be set aside merely because a beneficial price has not been obtained especially in view of the "at any time” provision of CPLR 5240, would discourage participation by third parties at judicial sales, for the title acquired at the sale would never be free from the spectre of judicial invalidation. Had the Legislature intended this statute to have such drastic consequences, it surely would have made its intention plain (see CPLR 2003; Murphy v Grid Realty Corp., supra, pp 1072-1073). It would not have expressly limited the application of the statute to "the use of any enforcement procedure”. Indeed, to permit CPLR 5240 to be used to set aside already completed execution sales would be tantamount to a judicial resurrection of the concept of equity of redemption — a remedy purposefully deleted from article 52 by the Legislature and one which we have no right to invoke. However unfortunate the judgment debtor’s plight may be, CPLR 5240 relates to the use of an enforcement device; it has no application after the threatened use of an enforcement procedure is a fait accompli.

This is not to say that a judgment debtor is without remedy once a judicial sale has taken place. CPLR 2003 grants the power to. set aside such a Sheriffs sale within one year "for a failure to comply with the requirements of the civil practice law and rules as to the notice, time or manner of such sale, if a substantial right of a party was prejudiced by the defect” (see McCoy v Bailey, 24 Misc 2d 875; Eidlitz v Doctor, 24 Misc 209). And, of course, the court may exercise its inherent equitable power over a sale made pursuant to its judgment or decree to ensure that it is not made the instrument of injustice (see Wesson v Chapman, 76 Hun 592). Although this power should be exercised sparingly and with great caution, a court of equity may set aside its own judicial sale upon grounds otherwise insufficient to confer an absolute legal right to a resale in order to relieve of oppressive or unfair conduct (see Fisher v Hersey, 78 NY 387; Crane v Stiger, 58 NY 625; King v Platt, 37 NY 155).

In this case, the sale was conducted in strict conformity with statutory procedure (see CPLR 5236), rendering CPLR 2003 inapposite. Nor do general equitable principles furnish respondents any basis for relief. While the sale price was less than respondents’ equity in the property, the simple fact is that in most instances the fair market value of the property will exceed the winning bid at an execution sale (Matter of Superintendent of Banks of State of N. Y., 207 NY 11, 16). For this reason, it is well settled that mere inadequacy of price— the only pertinent showing here — does not furnish sufficient grounds for vacating a sale (Clapp v McCabe, 155 NY 525, 532; State Realty & Mtge. Co. v Villaume, 121 App Div 793, 795; American Ins. Co. v Oakley, 9 Paige Ch 259; Woodhull v Osborne, 2 Edw Ch 614). Courts are alert to the inherent inequality of bargaining power in these instances. Where the judgment debtor can show not merely disparity in price, but in addition one of the categories integral to the invocation of equity such as fraud, mistake or exploitive overreaching, a court of equity may grant relief (see Fisher v Hersey, 78 NY 387, supra; Riggs v Pursell, 66 NY 193, 198; Housman v Wright, 50 App Div 606; Colonial Steel Corp. v Piquin, Inc., 74 Misc 2d 273).

Although respondents’ plight is certain to evoke sympathy, here the record is devoid of any showing warranting intervention by a court of equity. Respondents had obtained two postponements of the sale, giving them more than three months after they had received notice that their property was to be sold to satisfy plaintiff’s judgment. During that period, they could have avoided the sale by satisfying the judgment. Even on the day of the sale, respondents did not have sufficient funds to meet this obligation. Their delay in arriving at the sale is in no way attributable to appellant or any person connected with the sale and those in attendance had no knowledge of respondents’ transportation difficulties. Respondents’ rights were protected to the fullest extent that the law provides. What remains, then, is a Sheriffs sale consummated in complete accord with lawful procedure which, as is often the case, failed to realize the full equity of the judgment debtor. This factor, standing alone, does not provide cause to invalidate the sale. Having failed to take advantage of the ameliorative provisions of CPLR 5240 and there having been no showing that Berlin is not a bona fide purchaser, respondents may not now set aside the sale.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the motion to set aside the Sheriff’s sale denied.

Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur; Judge Fuchsberg taking no part.

Order reversed, etc.


author:
      Per Curiam.
     Jasen, J.

text:
    In the Matter of George C. Dixon, a Justice of the Town Court of Ghent and the Village Court of Chatham, Petitioner, v State Commission on Judicial Conduct, Respondent.
    Submitted May 4, 1979;
    decided July 3, 1979

      POINTS OF COUNSEL

      Connor, Curran, Connor, Flint & Schram for petitioner.
    The determination of the State Commission on Judicial Conduct that Justice Dixon be censured is completely unwarranted, excessive in nature, and constitutes an abuse of discretion, and should be reversed.

      Gerald Stern for respondent.
    I. Petitioner had waived his right to a hearing. II. The commission’s determination was based on all the evidence. III. Petitioner admitted the conduct set forth in charge III. IV. Petitioner admitted the conduct set forth in charge I. V. The commission’s determination of censure is based on the nature of the admitted, sustained charges alleging favoritism, is appropriate and is not excessive. (Matter of Bolte, 97 App Div 551; Friedman v State of New York, 24 NY2d 528; Bartlett v Enea, 45 AD2d 471.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, George Dixon, took office as Justice of the Village Court of Chatham in March of 1973, and as Justice of the Town Court of Ghent in January of 1976. He is not an attorney. As a result of an investigation conducted by the former State Commission on Judicial Conduct, charges were brought against the petitioner for requesting other Judges to accord favorable treatment to two defendants charged with traffic violations. On January 8, 1978 respondent was served with a notice of hearing and a complaint. In his answer he waived a hearing.

Among the exhibits submitted to the commission was a letter dated May 20, 1975 sent by the petitioner to a Justice of a town court concerning Ronald Reinemann, charged with driving without a license and driving an unlicensed vehicle. The letter states: "Mr. Reinemann is a nice fellow who has a great many personal problems at the moment, therefore I truly appreciate your kind consideration in the disposition of this matter.” Petitioner was also charged with improper conduct in seeking special treatment from a Justice of another town court for George Bidwell, charged with a speeding violation. In connection with this speeding charge petitioner admitted in his affidavit to the commission: "Mr. Bidwell was unemployed at the timé- and also recovering from a lengthy illness, and he approached me and asked me if I could help him. I felt compassion for this individual, and did talk to [the Town Court Judge] about the case.”

The former commission sustained the two charges, and imposed the penalty of censure. Before the commission transmitted its findings to the Chief Judge, the Legislature replaced it with the current State Commission on Judicial Conduct, the respondent on this appeal. The new commission adopted the findings and determination reached by the former commission. The petitioner contends that the record does not support the commission’s decision, and that the penalty imposed is excessive.

Initially we note that we are empowered to "review the commission’s findings of fact and conclusions of law” as well as to "impose a less or more severe sanction” than imposed by the commission (NY Const, art VI, § 22, subd d; Matter of Spector v State Comm. on Judicial Conduct, 47 NY2d 462). While we find that the record does support the commission’s finding of misconduct, we agree with the petitioner that the penalty of censure is excessive, and that admonishment would be a more appropriate sanction. In so deciding we consider various mitigating factors. Firstly, the petitioner neither sought nor obtained any personal benefit in either the Reinemann or Bidwell case. As his affidavit indicates he was "doing what [he] felt was the right thing to do in the interest of justice.” Petitioner also claims, insofar as the Reinemann case is concerned, that all he intended was to make the Town Court Justice aware of the circumstances of the case; presumably as one might make known background circumstances to a sentencing Judge. Nothing in the record contradicts these assertions.

Despite these mitigating factors we conclude nonetheless that the petitioner did violate the Canons of Judicial Conduct, for even if his motives were not culpable, his actions created the appearance of impropriety. Canon 2 (subd A) states: "A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” (See, also, Code of Judicial Conduct, Canon 1.) Communications from one Judge to another requesting, or appearing to request, special consideration for a defendant indicate a lack of impartiality and constitute misconduct within the meaning of the code. The record supports the commission’s finding that the petitioner engaged in such misconduct.

Accordingly the determination of the commission should be modified to the extent of reducing the sanction to admonishment.

Jasen, J.

(dissenting). Although the majority holds that the record supports the commission’s finding of misconduct on the part of petitioner, it nonetheless modifies the sanction imposed from censure, which it deems excessive, to admonishment. I cannot subscribe to this view and, therefore, dissent.

It is clear from the record that on two occasions petitioner requested that Town Justices give special consideration to individuals known by petitioner and charged with traffic violations. These requests were made by telephone and later confirmed in writing on petitioner’s official stationery. Moreover, in the letter sent by petitioner to Justice Cleary regarding the matter of Mr. Reinemann, petitioner closed: "Again please accept my thanks and if there is ever anything I can do for you, do not hesitate to call.”

The fact that nothing in the record contradicts petitioner’s assertion that he received no personal benefit in either of these cases, cited by the majority as a mitigating factor, is not dispositive. Canon 2 (subd B) of the Canons of Judicial Conduct unambiguously demands that a Judge "should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him.” In the present case, petitioner violated this obligation irrespective of whether he derived any personal benefit from his conduct.

Nor do I find persuasive petitioner’s plea that as a layman he was not fully aware of the bounds of proper judicial conduct. I remain skeptical that petitioner, especially in light of his quid pro quo promise to Judge Cleary to accommodate him in the future, was unaware of the improper nature of his conduct. But even assuming the validity of this rather implausible premise, it would be most inappropriate to establish a two-tiered level of professional conduct for Judges: that of the lawyer and the nonlawyer. Upon taking the oath of office, a Judge, whatever his background, has an affirmative obligation to make himself aware of the bounds of proper judicial conduct. "A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved.” (Code of Judicial Conduct, Canon 1.)

For these reasons, I would not disturb the sanction imposed by the commission.

Judges Gabrielli, Jones, Wachtler and Fuchsberg concur in Per Curiam opinion; Judge Jasen dissents and votes to accept the determined sanction in a separate opinion in which Chief Judge Cooke concurs.

Determined sanction modified, without costs, by reducing the sanction to admonishment.

      . A third charge alleging that the petitioner was improperly influenced to reduce a traffic charge in People v Trask was dismissed on the prosecutor’s representation that he had consented to the reduction.

      . (L 1978, ch 156.)


author: Wachtler, J.

text:
    The People of the State of New York, Appellant, v Dave R. Jones, Respondent.
    Argued May 31, 1979;
    decided July 3, 1979

      POINTS OF COUNSEL

      Denis Dillon, District Attorney (Shulamit Rosenhlum and William C. Donnino of counsel), for appellant.
    I. Nisi prius properly determined that the Miranda warnings were not required to be given defendant by department store security personnel. (Miranda v Arizona, 384 US 436; People v Lee, 33 AD2d 397; People v Yukl, 25 NY2d 585; People v Cardona, 41 NY2d 333; People v Esposito, 37 NY2d 156; People v Gunner, 15 NY2d 226; People v Brown, 34 AD2d 108; Coolidge v New Hampshire, 403 US 443; United States v Entringer, 532 F2d 634, 429 US 820; People v Goodman, 51 AD2d 1008.) II. Assuming defendant’s statements were inadmissible at his trial, the error was harmless. (People v Crimmins, 36 NY2d 230; Chapman v California, 386 US 18; People v Almestica, 42 NY2d 222; People v Savino, 22 NY2d 732; United States v Duvall, 537 F2d 15, 426 US 950; United States v Williams, 523 F2d 407; United States ex rel. Hines v La Valle, 521 F2d 1109, 423 US 1090; People v Cowan, 60 AD2d 634; People v Talamo, 58 AD2d 946; Harrington v California, 395 US 250; Milton v Wainwright, 407 US 371.)

      Howard B. Comet, Matthew Muraskin and Michael J. Obus for respondent.
    I. There was sufficient police participation in respondent’s arrest to constitute "state action”. Accordingly, the absence of Miranda warnings mandates suppression of his confession (Miranda v Arizona, 384 US 436; People v Cardona, 41 NY2d 333; People v Morales, 42 NY2d 129; People v Concepcion, 38 NY2d 211; Garcia v Herald Tribune Fresh Air Fund, 51 AD2d 897; People v Yukl, 25 NY2d 585; People v Rodney P., 21 NY2d 1; Lustig v United States, 338 US 74; Gambino v United States, 275 US 310; Byars v United States, 273 US 28.) II. The admission of respondent’s confession was not harmless error. (Chapman v California, 386 US 18; People

      v Crimmins, 36 NY2d 230; People v Lockwood, 55 AD2d 17, 44 NY2d 769; People v Donovan, 13 NY2d 148; Jackson v Denno, 378 US 368; Rogers v Richmond, 365 US 534; Rochin v California, 342 US 165.)
   OPINION OF THE COURT

Wachtler, J.

The question on this appeal concerns the admissibility of a confession obtained without Miranda warnings by private store detectives who took the defendant into custody, with assistance from county police officers, and questioned him in the store’s security office while the police officers waited outside. The County Court held the statement was admissible and, following a jury trial, the defendant was convicted of grand larceny in the third degree. But a majority at the Appellate Division reversed, suppressed the confession and ordered a new trial (61 AD2d 264). The prosecutor now appeals to our court.

On the afternoon of August 28, 1975 two Nassau County police officers, who were assigned to patrol a Valley Stream shopping center in plainclothes, entered Gimbel’s Department Store. They were informed by the store’s security personnel that a man was then under observation in the men’s clothing department. Security officers in the men’s department pointed out the defendant to the police but indicated that they did not "have anything yet”. The police officers watched the defendant for 5 or 10 minutes without incident and then left the store.

Soon after the defendant took a pair of wire clippers, cut the chains that ran through the sleeves of six leather coats, placed the coats in a plastic bag and proceeded to leave the store. This was observed by members of the store’s security staff who followed the defendant while one of the security guards went to find the police officers. The guard informed the police officers that store personnel were about to stop someone and that their assistance was needed.

The defendant was stopped outside the store by security officers who identified themselves and took the coats. When the police arrived one of the security officers was holding the defendant against the wall attempting to handcuff him. As the defendant stepped away from the wall one of the police officers placed his hand on the defendant’s shoulder, showed the defendant his badge, identified himself as a police officer and told the defendant to stand there or keep his hands on the wall. The defendant was then handcuffed and brought back to the store’s security office by the police and the store personnel. The policemen left the defendant at the security office and waited outside the door while the store detectives questioned him. This apparently was the "normal procedure”.

Inside the office the defendant was handcuffed to a desk, by one hand, and was asked to sign various items by the security officers. He was given a form confession with his name, address, a description of the stolen property and the date added and was asked to sign it if he understood it. He signed this form and another one by which he agreed not to enter the store for a three-year period. He also signed photographs of the stolen coats and the wire clippers. When this paper work was completed, the store detectives turned the defendant over to the police officers for criminal prosecution. It is conceded that neither the police nor the store detectives had previously informed the defendant that he had a right to remain silent or to consult with an attorney.

In Miranda v Arizona (384 US 436, 444), the Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” The court defined custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” The People contend that in this case it was not necessary to advise the defendant of his rights or to employ other procedural safeguards because the defendant was taken into custody and questioned by private store detectives, and not by police officers.

By statute, store detectives and other employees of retail stores are empowered to arrest or detain individuals suspected of shoplifting (General Business Law, § 218). Like police officers they are relieved of civil liability for false arrest if they can show reasonable grounds for the suspicion (Jacques v Sears, Roebuck & Co., 30 NY2d 466). Nevertheless in exercising this authority store employees are generally held to act as private individuals and not as police officers or State officials (People v Horman, 22 NY2d 378; but see People v Smith, 82 Misc 2d 204, holding that store detectives in New York City who are appointed by municipal officials as "special patrolmen” are governmental agents for Fourth Amendment purposes).

It is settled that an unauthorized search or seizure by private individuals, including store detectives, does not render the evidence inadmissible at subsequent civil or criminal proceedings (Burdeau v McDowell, 256 US 465; Sackler v Sackler, 15 NY2d 40; People v Horman, 22 NY2d 378, supra; People v Gleeson, 36 NY2d 462). This is so, the cases hold, because the Fourth Amendment is meant to regulate government activity; the unauthorized act of a private person does not violate the constitutional limitations. That, at least, has been the rule when the individual has acted entirely on his own "without the participation or knowledge of any governmental official” (People v Horman, 22 NY2d 378, 382, supra).

The government, of course, cannot avoid constitutional restrictions by using a private individual as its agent (see, e.g., People v Esposito, 37 NY2d 156; CPL 710.20, subd 2), nor can it claim that only a private act is involved when government officers, subject to constitutional limitations, have participated in the act (see, e.g., Lustig v United States, 338 US 74). Under such circumstances the constitutional restrictions on governmental activity cannot be said to be inapplicable.

In this case the People recognize that the store detectives did not act entirely on their own. The People claim however that there was no need to advise the defendant of his rights because the police participation was "minimal” or "peripheral”.

In order to properly assess the significance of the police participation in this case it must be borne in mind that the purpose of the Miranda rule — the requirement that the defendant be advised of his rights before being questioned — is "to dispel the compulsion inherent in custodial surroundings” (Miranda v Arizona, supra, p 458; cf. Michigan v Mosely, 423 US 96, 103-104). It is, of course, intended to regulate police conduct and here the People note that the defendant was "initially” taken into custody by the store detectives, and that the police did not take an active part in obtaining the confession or the defendant’s signature on the photographs. But the police were not merely anonymous observers. They actively participated in the arrest, one of them clearly identified himself to the defendant and both of them escorted the defendant to the place where he was interrogated while they awaited the outcome of the questioning. Although the store detectives who actually obtained the confession and other items may not have acted as police agents, the participation by the police was sufficient to create the type of custodial atmosphere which the Miranda rule was intended to alleviate. Thus the confession and the signed photographs, obtained without advising the defendant of his rights, should be suppressed.

The People argue, in the alternative, that the confession and the photographs, if erroneously admitted, were harmless beyond a reasonable doubt. They claim that even without the confession, the eyewitness testimony of the security officers presented "overwhelming and conclusive” evidence of the defendant’s guilt. Undoubtedly the People’s case was strong, but apparently not so strong that they felt they could do without the defendant’s confession at the trial. Indeed nothing could be more conclusive evidence of the defendant’s guilt than a signed confession. Significantly, during summation the prosecutor argued that • the confession corroborated the eyewitness accounts (cf. People v Dalton, 38 NY2d 222, 226). And while deliberating the jury made an inquiry concerning the confession. Thus on the record it cannot be said that "there is no reasonable possibility that the error [in admitting the confession] might have contributed to defendant’s conviction” (People v Crimmins, 36 NY2d 230, 237).

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

Chief Judge Cooke and Judges Gabrielli, Jones, Fuchs-berg and Meyer concur with Judge Wachtler; Judge Jasen dissents and votes to reverse for the reasons stated in the dissenting opinion by Mr. Justice Frank D. O’Connor at the Appellate Division (61 AD2d 264, 269-272).

Order affirmed.

      . (Miranda v Arizona, 384 US 436.)

      . In light of this disposition there is no need to consider the defendant’s alternative arguments (1) that store security officers should be considered police officers when they exercise their special powers to interrogate those suspected of shoplifting (General Business Law, § 218) or (2) that the presence of the police at the scene would be sufficient State action even if they were only standing idly by.


author: Meyer, J. Jones, J.

text:
    Robert P. Bennett, as President of the Uniformed Court Officers Benevolent Association of Nassau County, et al., Appellants, v County of Nassau, Respondent.
    Argued June 4, 1979;
    decided July 9, 1979

      POINTS OF COUNSEL

      Francis J. Donovan and Joseph D. Donovan for appellants.
    I. Section 220 of the Judiciary Law, as applied by the County of Nassau, impairs and abrogates vested, contractual rights of the nonjudicial employees of the unified court system. This is in violation of the constitutional rights of plaintiffs-appellants. (Patrolmen’s Benevolent Assn. of City of N. Y. v City of New York, 41 NY2d 205; Matter of Teachers Assn., Cent. High School Dist. No. 3 v Board of Educ., 34 AD2d 351; Committee of Interns & Residents v City of New York, 87 Misc 2d 504; Worthen Co. v Kavanaugh, 295 US 56; Flushing Nat. Bank v Municipal Assistance Corp. of City of N. Y., 40 NY2d 731.) II. The only practical remedy for the wrong caused by the unconstitutional application of the statute is to treat the transfer of the employees from county to State employment as a termination or separation from county service creating an immediate right to cash payment for "banked” leave credits. (Matter of 749 Broadway Realty Corp. v Boyland, 1 Misc 2d 575, 1 AD2d 819, 3 NY2d 737; Matter of Miller v State of New York, 279 NY 74; Matter of Long v City of New York, 276 App Div 799, 302 NY 681; Matter of Eagan v Livoti, 287 NY 464; Matter of Schaeffer v Hitchcock, 258 App Div 1005; Matter of Benedetto v County of Suffolk, 35 AD2d 568, 28 NY2d 744; Krieger v Krieger, 25 NY2d 364.)

      Edward G. McCabe, County Attorney (Joshua A. Elkin of counsel), for respondent.
    I. Appellants, employed by Nassau County as nonjudicial employees on March 31, 1977, were not terminated from service on that day. II. Assuming, arguendo, that the impairment of contractual obligation issue is not deemed to be premature, section 220 (subd 6, par [d]) of the Judiciary Law did not impair a contractual obligation of the County of Nassau. (Keefe v Clarke, 322 US 393; Sturges v Crowninshield, 4 Wheat [17 US] 122; Gelfert v National City Bank, 313 US 221; Weisel v Hagdahl Realty Co., 241 App Div 314; Louisville & Nashville R. R. v Mottley, 219 US 467; Matter of Shelofsky v Helsby, 32 NY2d 54; Preston Co. v Funkhouser, 261 NY 140; People ex rel. Durham Realty Corp. v Le Fetra, 230 NY 429; Matter of Teachers Assn., Cent. High School Dist. No. 3 v Board of Educ., 34 AD2d 351; Christian v County of Ontario, 92 Misc 2d 51.) III. Assuming, arguendo, that section 220 (subd 6, par [d]) impaired a contractual obligation, it is a reasonable and appropriate means to fulfill a legitimate legislative purpose. (Matter of Subway-Surface Supervisors Assn. v New York City Tr. Auth., 44 NY2d 101; Security Unit Employees Council 82, Amer. Federation of State, County & Municipal Employees, AFL-CIO v Rockefeller, 76 Misc 2d 435; Board of Educ. v Cassidy, 59 AD2d 180; Country-Wide Ins. Co. v Harnett, 426 F Supp 1030, 431 US 934; Koch v Yunich, 533 F2d 80; United States Trust Co. v New Jersey, 431 US 1; El Paso v Simmons, 379 US 497.)
   OPINION OF THE COURT

Meyer, J.

This appeal presents the question whether section 220 (subd 6, par [d]) of the Judiciary Law [renumbered § 39, L 1978, ch 156, § 9] unconstitutionally impaired rights vested in plaintiffs, nonjudicial employees of the court system in the County of Nassau, to receive cash payment for accumulated vacation pay and sick leave upon the transfer, pursuant to court unification, of their positions to the State. Special Term held that the transfer terminated plaintiffs’ county service, that the enforced transfer of stated parts of their sick leave and vacation pay rights to the State impaired their contract rights and that the infringement of those rights was not reasonable and necessary to serve a public purpose within the rule recently restated by the Supreme Court in United States Trust Co. v New Jersey (431 US 1). It, therefore, granted summary judgment to plaintiffs and set the matter down for assessment of damages. The Appellate Division, finding that the transfer of plaintiffs from county to State service did not constitute a "termination” within the meaning of the contract and that the action was, therefore, premature, reversed, granted judgment to the county declaring that plaintiffs’ services had not been terminated and otherwise dismissed the complaint. The order of the Appellate Division should be reversed and the order of Special Term reinstated.

Plaintiffs became State employees on April 1, 1977, pursuant to the provisions of section 220 of the Judiciary Law (see L 1976, ch 966, as amd by L 1977, ch 32). Section 220 (subd 6, par [d]), which took effect April 1, 1977 (three months after the effective date of the collective bargaining agreement), deals with vacation and sick leave. It provides in pertinent part:

"(d) Notwithstanding any other provision of law,

"(i) Any nonjudicial officer or employee of the courts and court-related agencies of the unified court system who becomes an employee of the state of New York pursuant to this subdivision may, at the option of such officer or employee, be credited with sick leave earned and accumulated but unused at the time he becomes a state employee, but not in excess of two hundred days and shall be credited with vacation leave earned and accumulated but unused at the time he becomes a state employee, but not in excess of forty days * * *

"(iii) At the time of retirement or any other permanent separation without fault from the employment of the state, any such nonjudicial officer or employee shall be entitled to receive from the political subdivision payments for terminal leave based upon any time and leave credits accrued before April ñrst nineteen hundred seventy-seven and not transferred to the state pursuant to subparagraph (i) * * * If such officer or employee retires, such entitlement shall include payments he would have received from the political subdivision as if he had been eligible to retire and as if he had retired on March thirty-ñrst, nineteen hundred seventy-seven. Such credits shall be payable in cash if such credits would have been so payable by the political subdivision or if such officer or employee would otherwise have been retained on the payroll of the political subdivision until any such credits had been exhausted” (emphasis supplied).

Each plaintiff has filed a claim form with the county comptroller stating that he elects "Pursuant to the option given me by Section 220 of the Judiciary Law” to carry over less than the statutorily mandated 40 days (in fact, each elected to carry over no days) vacation time. The county comptroller rejected their claims and this action ensued.

The first three causes of action on behalf of plaintiffs Stone, Wilkins and Gilbride ask money damages for failure to pay them their accumulated time in cash as provided by the agreement. The fourth cause of action by plaintiff Bennett is stated to be a class action though no class action order has yet been entered. It seeks judgment declaring, among other things, that the transfer provisions of section 220 are optional rather than mandatory, and while no judgment so declaring has yet been entered, Special Term’s order, which granted summary judgment to all plaintiffs, must be understood as awarding the declaratory relief requested, to be incorporated in the judgment to be entered upon completion of the assessment.

There can be no question that the court employees transferred from the county to State service on April 1, 1977 were "terminated” within the meaning of the contract. Notwithstanding that they continued to perform the same services in the same building, they were working for a different employer. Neither the concept that in both capacities they were serving the people of the county (which, of course, is only partly true since many litigants are not county residents), the fact that the State had previously reimbursed the county for part of its court personnel costs, nor the fact that under the unification plan the county, during a transition period, will contribute to the State part of the costs of maintaining the courts in Nassau, changes the fact that plaintiffs are no longer employees of the County of Nassau. Indeed, by providing in section 220 (subd 6, par [iii]) that at the time of retirement from State service plaintiffs will be entitled to payment for leave credits as if they had retired on March 31, 1977, the Legislature has implicitly, if not explicitly, recognized that court unification terminates plaintiffs’ county service.. The conclusion necessarily is, therefore, that there had been "separation from the service of the County” within the meaning of the agreement. Since plaintiffs had not been "discharged for cause” they became, by reason of that termination, entitled to cash payment for accumulated time under section 3 (subd 5) of the ordinance.

Little time need be spent on the question of impairment, for the Appellate Division reached its conclusion on the basis of prematurity and, agreeing with Special Term as to the effect of the transfer on the rights of transferred employees, spelled out (66 AD2d 131, 139-140) the manner and extent of the impairment. There is, therefore, no disagreement on this issue.

Nor, whatever may be said with respect to another county faced with a similar claim by its former court employees now transferred to State service, can it be said that the County of Nassau has on this record brought itself within the principle of United States Trust Co. v New Jersey (431 US 1, supra), Patterson v Carey (41 NY2d 714) and similar cases, that a contract impairment may nonetheless be constitutional if in the reasonable and necessary exercise of the police power of the State. While there can be no question that unification of the court system is an important public purpose, that justifies the transfer of plaintiffs’ employment, but constitutes no reason for the infringement of plaintiffs’ contract rights that the statute’s mandatory transfer provisions entails nor, as Special Term noted, is there any showing "that the County is faced with any dire financial problems because of the State’s takeover of the court system.”

Plaintiffs are, therefore, entitled to the damages and the declaratory judgment that they request unless it can be said that by asking for a declaration that the transfer provisions of section 220 (§ 6, subd [d]) are optional rather than mandatory, they have somehow waived their rights. The complaint cannot be fairly so construed. Indeed, it is nothing more than a recognition by plaintiffs of the time-honored rule that a statute should not be so construed as to make it unconstitutional if there is another possible interpretation that will avoid the constitutional infirmity. If the transfer provision is construed as optional rather than mandatory then there will result no impairment of any court employee rights, since whatever accumulated leave or vacation time he transfers will have been transferred of his or her own free will. By asking for a declaratory judgment limited to a determination that transfer is optional and failing to obtain a class action order, plaintiffs have limited no one but themselves. Accordingly, the judgment to be entered on the fourth cause of action, after assessment of damages on the first three causes of action, will declare only that the transfer provision of the section must be construed as optional, and that plaintiffs, having been terminated from county service, are entitled to judgment against the county for the cash value of so much of their accumulated vacation time and sick leave as they do not voluntarily transfer to the State.

The order of the Appellate Division should, therefore, be reversed and the order of Special Term reinstated.

Jones, J.

(dissenting). I would affirm the order of the Appellate Division.

For the reasons stated in the opinions of Mr. Justice J. Irwin Shapiro and Mr. Justice Joseph A. Suozzi at the Appellate Division I agree that the establishment of the unified court budget on April 1, 1977 pursuant to chapter 966 of the Laws of 1976 and the implementation of the first stage assumption of the costs thereof by the State did not constitute a "separation from the service of the County” within the contemplation of the applicable agreements between the county and appellants. I find persuasive, too, the principle applicable in the private employment sector — that when new ownership takes over a going enterprise, even though there be a total change of employer in the legal sense, the new employer is bound by collective bargaining obligations of the predecessor employer if there is a substantial continuity in the business enterprise as well as in the identity of the work force (here there was both) — in substance that the rights of the employees persist as though there had been no interruption or termination of employment. (John Wiley & Sons v Livingston, 376 US 543; see Howard Johnson Co. v Hotel Employees, 417 US 249, 263; NLRB v Burns Int. Security Servs., 406 US 272.) I recognize that in these cases the shoe is on the other foot, and that it is the employer who seeks a holding that there has been a termination of employment. I think, however, that the principle involved is pertinent.

As a matter of substance as distinguished from the diction of the agreements, I see no reason in sound personnel policy or practice to pay cash equivalents for accumulated sick leave or vacation leave while the employees continue in the same positions to perform the same duties with only a change in the identity of the employer — now the State rather than the county. The objective of the contract provision I would have thought was to assure payment of cash equivalent of accumulated credits on termination of employment.

Finally, I cannot imagine that the State and county and others responsible for the preparation and passage of this aspect of the unified court budget legislation ever contemplated that the State take-over would have the effect of accelerating payment of what the employees themselves must have anticipated as benefits to be received at a time when they were separated from their employment and their tenure in their jobs ceased.

Judges Gabrielli, Wachtler and Fuchsberg concur with Judge Meyer; Judge Jones dissents and votes to affirm in a separate opinion in which Judge Jasen concurs; Chief Judge Cooke taking no part.

Order reversed, with costs, and the order of Supreme Court, Nassau County, reinstated.


author: Gabrielli, J.

text:
    In the Matter of Daniel Vega, Respondent, v Howard E. Bell, as Justice of the Supreme Court, Bronx County, et al., Appellants.
    Argued May 31, 1979;
    decided July 9, 1979

      POINTS OF COUNSEL

      Mario Merola, District Attorney (Alan D. Marrus of counsel), for appellants.
    A "removal inquiry” as provided for in CPL 180.75 is not a jurisdictional prerequisite to the Grand Jury’s right to indict a juvenile offender. (People ex rel. Battista v Christian, 249 NY 314; Matter of Simonson v Cahn, 27 NY2d 1; People ex rel. Hirschberg v Close, 1 NY2d 258; People v Dillon, 197 NY 254; People v Abbatiello, 30 AD2d 11; People v Ackrish, 92 Misc 2d 431; Matter of Friess v Morgenthau, 86 Misc 2d 852; People v Lohman, 49 AD2d 75; People v Peterson, 91 Misc 2d 407; People v Ryback, 3 NY2d 467.)

      Barbara C. Salken, Leon B. Polsky and Daniel Nobel for respondent.
    I. A juvenile cannot be indicted for an unarmed offense unless and until the Criminal Court Judge has made the necessary jurisdictional determination pursuant to CPL 180.75 (subd 4, par [a]). II. Due process requires a hearing whenever a judicial decision terminates a juvenile’s access to juvenile treatment. (Kent v United States, 383 US 541; Cox v United States, 473 F2d 334.) III. The Grand Jury’s power to indict is not absolute and may be limited by the Legislature. (People v Ryback, 3 NY2d 467; People v Stern, 3 NY2d 658; People v Johnson, 20 NY2d 220; People v Pieters, 20 NY2d 691; People v Jones, 59 AD2d 617; People v McCarthy, 59 AD2d 749; People v De Jesus, 21 AD2d 236.)
   OPINION OF THE COURT

Gabrielli, J.

We are called upon in this article 78 proceeding to determine whether a juvenile offender may be indicted by a Grand Jury and be brought to trial without first being afforded a hearing in a local criminal court on the issue whether the interests of justice require removal of the action to Family Court for treatment as a juvenile delinquency proceeding. We conclude that a local criminal court hearing is not a jurisdictional prerequisite to indictment by a Grand Jury, and thus there exists no bar to continuation of criminal proceedings commenced by Grand Jury indictment despite the failure to hold a removal hearing in a local criminal court.

Petitioner, then 15 years of age, was arrested on October 4, 1978 and arraigned the following day in the Criminal Court of the City of New York, Bronx County, upon a felony complaint charging him with one count of sodomy in the first degree. The complaint alleged that petitioner had engaged in deviate sexual intercourse with a minor by forcible compulsion. On October 11, petitioner requested both a felony hearing and removal of the case to the Family Court. The prosecutor informed the court that on the previous day a Grand Jury had voted to indict petitioner on four counts of sodomy in the first degree based on four incidents, one of which formed the basis for the felony complaint. Reasoning that it lacked the power to continue the proceeding before it after the Grand Jury had acted, the court denied petitioner’s applications for a felony hearing and for removal to Family Court, and instead transferred the action to the appropriate superior criminal court, Supreme Court, Bronx County.

Petitioner subsequently moved in Supreme Court, Bronx County, to transfer the action back to Criminal Court for resolution of his removal motion on the merits. Following the denial of the transfer motion, petitioner commenced the instant article 78 proceeding seeking to prohibit his prosecution on the ground that the Grand Jury lacked the power to indict him unless the local criminal court first provided him a hearing on his removal motion. The Appellate Division granted the petition, over a dissent by two Justices, and respondents now appeal to this court as of right pursuant to CPLR 5601 (subd [a], par [i]).

As petitioner has chosen to raise his claim in the context of an article 78 proceeding seeking the extraordinary remedy of a writ of prohibition, he is subject to the limitations controlling the issuance of such a writ. As we stated in Matter of Dondi v Jones (40 NY2d 8, 13): "[T]he extraordinary remedy of prohibition lies only where there is a clear legal right and only when the body or officer 'acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction’ (Matter of State of New York v King, 36 NY2d 59, 62; Matter of Nigrone v Murtagh, 36 NY2d 421, 423-424). It must be directed to some inferior judicial tribunal or officer and lies to prevent or control judicial or quasi-judicial action only, as distinguished from legislative, executive or ministerial action (Matter of Kaney v New York State Civ. Serv. Comm., 190 Misc 944, 951, affd 273 App Div 1054, affd 298 NY 707; 23 Carmody-Wait 2d, NY Prac, § 145:215, p 788; see Comment: The Writ of Prohibition in New York — Attempt to Circumscribe an Elusive Concept, 50 St John’s L Rev 76, 84)” (accord Matter of Jaffe v Scheinman, 47 NY2d 188, 192-193; Matter of B. T. Prods. v Barr, 44 NY2d 226, 231-232; Matter of Steingut v Gold, 42 NY2d 311, 315-316). As it is petitioner’s claim that he may not be brought to trial upon the pending indictment because the Grand Jury lacked the power to indict him, this is clearly a proper case for issuance of the writ of prohibition should petitioner’s substantive arguments prove sound. Accordingly, we now turn our attention to the validity of those contentions.

Prior to September 1, 1978, children under the age of 16 were not subject to criminal sanctions in New York State in any circumstances. Instead, juveniles who performed acts which would have been crimes had they been committed by adults, were all dealt with through a separate juvenile delinquency system (see Family Ct Act, art 7). This method of attempting to deal with the problem of criminal actions performed by juveniles was deemed somewhat less than completely successful by many, especially as public attention in recent years focused on what has been perceived to be an increase in the rate of acts of violence by minors. Responding to this troublesome state of affairs, the Legislature last year made certain substantial modifications in the traditional mechanisms for resolving the problem of juvenile crime (see L 1978, chs 478, 481). Among other drastic changes in the law, juveniles between the ages of 13 and 15 who are charged with certain enumerated, serious crimes of violence are now classified as "juvenile offenders” and are prosecuted within the adult criminal justice system (CPL 1.20, subd 42; Penal Law, § 10.00, subd 18; § 30.00, subd 2).

While deciding that such harsh measures were necessary to control violent juvenile crime in the face of what was considered to be the failure of the traditional means of treating that problem, the Legislature nonetheless remained sensitive to the fact that special considerations are sometimes appropriate when dealing with juveniles, who are more easily influenced by their companions and their environment than are adults, Hence, rather than simply applying every feature of the adult criminal justice system to juvenile offenders, the Legislature carefully created several modifications in normal procedure so as to displace "the ones applicable to adults insofar as they would be inappropriate or incongruous to the handling of such 'juveniles’ charged with very serious crimes” (Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 180.75). Of special significance in the instant case are several provisions whereby, at various stages in a criminal proceeding, a juvenile offender may be removed to Family Court if it becomes apparent in a particular case that such treatment would be more appropriate than continuation of criminal prosecution (see CPL 180.75, 220.10, subd 5, par [h]; 330.25).

Most of these provisions provide for removal to Family Court only with the approval of the District Attorney. CPL 180.75 (subd 4), however, provides that where a juvenile offender is arraigned before a local criminal court upon a felony complaint, that court may order, even over the objection of the District Attorney, that the defendant be removed to Family Court in the interests of justice unless the defendant is accused of either murder in the second degree or an armed felony (CPL 1.20, subd 41). Petitioner contends that this is the only stage in a criminal proceeding against a juvenile offender at which a court may order removal of the accused to Family Court despite the objections of the District Attorney. Petitioner suggests that since the Legislature deemed it necessary to provide such a safety valve, it must have intended that mechanism to be applicable to every alleged juvenile offender. Hence, petitioner would have us interpret the statutory scheme governing the prosecution of juvenile offenders as requiring that each juvenile defendant must be granted a hearing before a local criminal court to decide whether the interests of justice mandate removal to Family Court, before he or she may be indicted by a Grand Jury. In addition to his statutory arguments, petitioner contends that due process mandates a full hearing to determine whether a juvenile may be prosecuted in the adult criminal justice system or whether he or she should be removed to Family Court. Finally, it is also suggested that a scheme whereby only those juvenile offenders who are arraigned before a local criminal court are afforded an opportunity for removal without the consent of the District Attorney would itself be so inherently arbitrary as to violate due process.

Our examination of the statutes, however, persuades us that a juvenile offender may indeed be indicted by a Grand Jury without first being afforded a removal hearing before a local criminal court. Petitioner’s arguments are based on a misunderstanding of the nature and function of CPL 180.75. That section deals only with those accused juvenile offenders who have been arrested and are arraigned on a felony complaint prior to Grand Jury action. The primary function of the section is to provide a prompt felony hearing, similar to that granted to an accused adult defendant (see CPL 180.10, subd 2). In both situations, the primary purpose of such a hearing and such a procedure is to determine whether there exists reasonable cause to hold a defendant in custody pending action by a Grand Jury (see CPL 180.10, subd 1; Staff Comments to Proposed CPL 90.60; People v Jackson, 48 Misc 2d 1026, 1027-1028; Pitler, New York Criminal Practice Under the CPL, § 4.30). It is a preliminary proceeding at which a preliminary determination is made pending a decision by the Grand Jury as to whether there exists probable cause to indict. Once the Grand Jury does act, the determination whether there exist reasonable cause to hold and prosecute a defendant has been made by the Grand Jury itself, the body constitutionally authorized to make that decision (NY Const, art 1, § 6), and hence the need for a felony hearing is obviated. The power of the Grand Jury to indict felons is in no way dependent upon the existence of a prior felony hearing, for the purpose of the felony hearing is simply to temporarily determine the fate of the accused pending Grand Jury consideration. Thus, an otherwise valid indictment is not tainted by any error at the felony hearing, since "the Grand Jury [has] power to investigate and indict regardless of what [has] occurred before the magistrate and regardless of whether the magistrate had held or discharged the prisoner or still had the matter pending, or of whether there had ever been such a preliminary hearing” (People ex rel. Hirschberg v Close, 1 NY2d 258, 261).

Defendant would have us hold that simply because the Legislature has seen fit to provide the local criminal court with additional dispositional powers at the felony complaint arraignment state, it has in some way made arraignment before a local criminal court a necessary jurisdictional predicate for indictment by a Grand Jury. Were this so, it would mean that no juvenile offender could be indicted without first being arrested upon a felony complaint and arraigned before a local criminal court, since that is the way in which a juvenile is brought before a local criminal court pursuant to CPL 180.75. Such a result would be unthinkable, for the Grand Jury certainly has the power to indict a person not yet arrested or arraigned. Indeed, to require arrest and arraignment as a prerequisite to Grand Jury consideration would be to mandate unnecessary preindictment incarceration and to place a totally unneeded burden upon the judicial system.

The Legislature’s decision to provide a local criminal court with power to remove an accused juvenile offender to Family Court was plainly intended to serve as a means of removing from the criminal system as quickly as possible those juveniles who, because of exceptional circumstances, can be dealt with more effectively within the juvenile system. It was not intended to mandate local criminal court consideration of every alleged juvenile offender as a prerequisite to Grand Jury consideration. We decline petitioner’s invitation to interpret the statutory scheme as creating such a novel and cumbersome mechanism without a much clearer indication of legislative intent to so elevate local criminal court arraignment proceedings.

Nor are we persuaded by petitioner’s contention that due process requires that an accused juvenile offender be provided with a hearing at the local criminal court, or elsewhere, to determine whether the interests of justice require removal to Family Court before that defendant may be prosecuted within the adult criminal justice system. This argument is based in large part on the decision of the United States Supreme Court in Kent v United States (383 US 541). We consider that reliance to be misplaced. In Kent, the Supreme Court held that due process mandates a hearing before a juvenile can be transferred from the "exclusive jurisdiction” of a juvenile court into the adult criminal justice system. The statutory plan underlying that decision established a juvenile justice system whereby all juveniles were initially and presumptively subject to the exclusive jurisdiction of the juvenile court unless the juvenile court deemed it proper to waive its jurisdiction and transfer a particular minor to the jurisdiction of the criminal courts (Kent v United States, supra, at pp 547-548). Obviously, under that system the great majority of minor offenders were to be treated within the framework of the juvenile system, and transferral to the adult criminal justice system was envisioned only in certain rare instances in which it was determined that treatment as a juvenile would be ineffectual. Because of the significant effects of such a transfer, and the potentially severe results, the Supreme Court ruled that due process mandated a hearing lest the decision to transfer be an arbitrary one by which randomly selected juveniles were subjected to the adult system while most of their peers continued to reap the benefits of their status as juveniles.

The current New York statutory scheme, on the other hand, is significantly different. All youngsters over a certain age who are accused of certain criminal activities are now automatically prosecuted within the adult criminal justice system unless there exist certain special circumstances warranting more lenient treatment and transfer to the Family Court. Hence there exists no opportunity for that which the Supreme Court found to be abhorrent in Kent: namely, the possibility that some juveniles would be arbitrarily transferred to the adult criminal system, thereby subjecting them to significantly harsher potential penalties than could be imposed upon the majority of juveniles who engaged in similar antisocial behavior. Under the New York plan, in contradistinction, all juveniles accused of certain designated crimes are subject to the adult criminal system, except in those unusual cases in which treatment as a juvenile is deemed appropriate.

This is not to suggest, of course, that the decision whether to remove a particular juvenile to Family Court in the interests of justice may be a completely arbitrary one. Hence, were we to interpret the statutory scheme as affording the opportunity for possible removal over the opposition of the District Attorney only to those juveniles who are arraigned in a local criminal court, there might well be some doubt as to the validity of such a plan. It would seem somewhat unreasonable to provide such a potential benefit only to those juveniles whose behavior is such that immediate arrest is deemed necessary, while denying it to those youths left at liberty pending consideration by a Grand Jury.

As it is, however, we need not reach this question, for we view the statutory scheme as providing the power to remove an accused juvenile offender to Family Court in the interests of justice and over the objections of the prosecutor to superior criminal courts following Grand Jury indictment, as well as to local criminal courts at arraignment. We are cognizant of the fact that no such power was explicitly given superior criminal courts when the Legislature revised the traditional juvenile justice system in 1978. Indeed, the Legislature did specifically provide several opportunities for removal with the consent of the District Attorney. This does not lead us to conclude, however, that this was because the Legislature wished only the local criminal courts to have the power to remove over the objection of the District Attorney, for such a result would be unreasonable, and it is the duty of the courts to interpret statutes so as to reach a reasonable result whenever possible. Hence, we conclude that the Legislature’s failure to explicitly grant such powers to the superior criminal courts was based on the belief of the Legislature that such a grant was unnecessary because such a power was impliedly founded in the superior criminal courts’ authority to dismiss an indictment in the interests of justice (see CPL 210.40). Surely the power to remove in the interests of justice, which is a much lesser relief than outright dismissal in the interests of justice, must be deemed to be included within the power to dismiss. Hence, although CPL 210.40 does not expressly provide superior criminal courts with the power to remove an accused juvenile offender to Family Court in thé interests of justice and over the objections of the District Attorney, it is certainly reasonable to conclude that the statute impliedly provides such power, especially since such an interpretation is necessary to avoid doubts as to the validity of the statutory scheme. Although it might be suggested that the existence of this power is at odds with the explicit provision of several opportunities to remove with the consent of the prosecutor, we would interpret the latter sections as indicative of a legislative intent that removal over the District Attorney’s objections only be ordered in the exceptional case. At the same time, the Legislature deemed it necessary to provide some authority to remove without the District Attorney’s approval because of its realization that in certain rare instances a prosecutor may be too closely involved in the prosecution to appreciate the benefits of juvenile treatment.

Finally, we reject petitioner’s suggestion that a hearing will in all cases be necessary to determine whether the interests of justice mandate removal to Family Court. This is a matter best left to the sound discretion of the court in which the removal motion is made. We note that the Legislature has already decided that in most cases juveniles accused of certain serious crimes are to be prosecuted within the criminal justice system. It is not for the courts to question the wisdom of this legislative decision, nor to seek to undermine its operation by removal to Family Court in the "typical” case, if indeed any case involving juveniles can ever be deemed typical. At any rate, under the present scheme it will only be in the unusual or exceptional case that removal will be proper, and thus a hearing will be necessary only if it appears for some special reason that removal would be appropriate in the particular case.

In sum, we conclude that the failure to provide petitioner with a removal hearing at the local criminal court did not deprive the Grand Jury of the power to indict him. Hence, there exists no jurisdictional bar to the continuation of his prosecution, and no basis for issuance of a writ of prohibition.

Accordingly, the judgment appealed from should be reversed, without costs, and the petition seeking a writ of prohibition should be dismissed.

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

Judgment reversed, etc.

      . Of course, extreme and unjustified preindictment delay may in certain unusual circumstances mandate dismissal of an indictment upon due process grounds (see People v Singer, 44 NY2d 241).

      . We note the adoption on July 7, 1979 of legislation which will clarify this situation somewhat by removing from local criminal courts the power to remove to Family Court in the interests of justice over the objection of the District Attorney, and instead specifically providing only superior criminal courts with that power (L 1979, ch 411). Additionally, the new legislation establishes more specific guidelines for the exercise of the power to remove in the interests of justice (see, also, L 1979, ch 216; cf. People v Belge, 41 NY2d 60, 62; People v Clayton, 41 AD2d 204).


text:
    The People of the State of New York, Appellant, v Victor Licitra, Respondent.
    Argued June 8, 1979;
    decided July 9, 1979

      POINTS OF COUNSEL

      Carl A. Vergari, District Attorney (Anthony Joseph Servino of counsel), for appellant.
    Defendant’s guilt for the reckless killing of his wife was proven by the credible evidence beyond any reasonable doubt. The court below erred in holding that the evidence was insufficient to sustain the conviction for manslaughter in the second degree, or any lesser included offense. (People v Mayo, 36 NY2d 1002; People v Fellman, 35 NY2d 158; People v Lagana, 36 NY2d 71; People v Fiorentino, 197 NY 560; People v Nowakowski, 221 App Div 521; People v Benzinger, 36 NY2d 29; People v Cleague, 22 NY2d 363; People v Bretagna, 298 NY 323; People v Corbisiero, 290 NY 191; People v Borrero, 26 NY2d 430.)

      George J. Bellantoni for respondent.
    I. The evidence was insufficient to sustain the conviction of manslaughter in the second degree or any lesser included offense. (People v Harris, 136 NY 423; People v Razezicz, 206 NY 249; People v Leyra, 1 NY2d 199; People v Montanez, 41 NY2d 53.) II. Respondent’s motion to suppress admissions was improperly denied. (People v Pendergraft, 50 AD2d 531; People v Rodney P., 21 NY2d 1; People v Paulin, 61 Misc 2d 289, 33 AD2d 105, 25 NY2d 445.) III. The trial court committed error in permitting improper expert testimony which deprived respondent of a fair trial. (People v Higgins, 5 NY2d 607; People v Graydon, 43 AD2d 842.) IV. Respondent’s sentence to a minimum term of 5 years and a maximum term of 15 years is unduly harsh and severe. V. The trial court erred in not ordering a hearing into the matter of a prejudicial news article read by the jury during the trial. (People v Crimmins, 33 AD2d 793; People v De Lucia, 20 NY2d 275; Parker v Gladden, 385 US 363; People v
      Diefendorf, 281 App Div 465, 306 NY 818; People v McLucas, 15 NY2d 167; People v Culhane, 33 NY2d 90; People v Carborano, 301 NY 39.) VI. In its charge to the jury the trial court committed error in its explanation of the distinction between reckless conduct and criminally negligent conduct. VII. In the event that the Court of Appeals reverses the court below the case must be remanded to the court below, for its determination of the facts underlying the original judgment.
   OPINION OP THE COURT

Chief Judge Cooke.

Defendant, Victor Licitra, was convicted of manslaughter in the second degree for recklessly causing the death of his wife (Penal Law, § 125.15, subd 1). The Appellate Division reversed the conviction and dismissed the indictment, reasoning that the prosecution failed to establish a sufficient case for submission to the jury. The People now appeal from that determination.

On August 26, 1974 White Plains police received three telephone messages reporting an automobile accident with injuries at 11 Benedict Avenue from a male who, on the third call, identified himself as "Licitra”. Patrol units were quickly dispatched and Officer Michael Sforza was the first' to reach the scene. While attempting to locate the vehicular accident, Sforza suddenly was stopped by defendant, who informed him that there had been an accidental shooting. The officer then accompanied defendant into his home on Benedict Avenue. Upon entering the living room, Sforza observed Mrs. Licitra, defendant’s wife, slumped over in a chair, unconscious, blood seeping from a fresh head wound. Directly behind the chair was a .38 caliber Smith and Wesson revolver. Sforza promptly sought to ascertain whether Mrs. Licitra was alive and, after feeling a weak pulse, radioed for medical assistance.

In the interim, Detective Robert Pockl arrived and was let into the house by defendant. The detective asked defendant what had happened, and defendant answered that he was taking the gun out and it went off. Defendant repeated the explanation a number of times and each time supplied a visual description of the event by moving his right hand from the belt area on his left side across his body toward the right. In response to a further question, defendant indicated that he possessed a permit for the gun, which he later produced. He dlso related that he had been at a firing range earlier in the day but returned home when it began to rain. He stated he was taking the gun out to put it away when it went off.

Defendant was taken to the police station, and that same afternoon was placed under arrest. Five days later Mrs. Licitra died. A Westchester County Grand Jury subsequently returned an indictment charging defendant with one count of manslaughter in the second degree and one count of criminally negligent homicide.

At trial, the prosecution contradicted defendant’s version of these events in a number of ways. Specifically, the People produced a witness who related that the firing range defendant claims to have attended was closed on the day in question, and that defendant’s membership at the range had expired some six months earlier. Most important, however, was the testimony of Deputy Sheriff Joseph Reich, a ballistics expert, who had undertaken a detailed examination of defendant’s revolver. According to Reich, this particular weapon could be fired in either of two ways: the single action method where the hammer is placed in the fully cocked position and three pounds of pull is exerted on the trigger; or, the double action method where the hammer is in the rest position, in which case 10 pounds of pressure on the trigger is required to discharge a bullet. Because of internal safety devices, the weapon would not fire unless the required pressure were exerted on the trigger, even if the hammer were in the cocked position. These safety mechanisms were inspected by Deputy Reich and found to be functioning properly. Thus, this testimony, if credited, establishes that the gun could not have gone off without defendant’s finger being on the trigger exerting 3 and perhaps 10 pounds of pressure. The question is whether, on this record, a prima facie case was made out.

At common law, a person committed the crime of involuntary manslaughter, the historic foundation for the modern second degree manslaughter statute, when he caused the death of another through culpable or criminal negligence (see, e.g., People v Angelo, 246 NY 451, 454-455; La Fave & Scott, Criminal Law, § 78; 1 Warren, Homicide, § 86, at pp 420-421). Although the authorities generally agreed that something more than ordinary negligence needed to be shown before criminal liability would attach, the precise degree of risk required was fraught with uncertainty (see La Fave & Scott, Criminal Law, § 30, pp 211-213; cf. People v Eckert, 2 NY2d 126, 130-131; People v Buddensieck, 103 NY 487). Particularly unsettled in the various jurisdictions was the question whether a defendant had to possess a subjective awareness of the risk which caused the death in order to be guilty of manslaughter (compare Commonwealth v Pierce, 138 Mass 165 [Holmes, J.], with Bussard v State, 233 Wis 11; see, also, People v Decina, 2 NY2d 133).

Much of the confusion was dissipated with the adoption of the new Penal Law in 1968. In that statute, the Legislature, embracing the approach advocated by the drafters of the Model Penal Code (see People v Haney, 30 NY2d 328, 332-333), created a distinction between criminal negligence and recklessness (Penal Law, § 15.05). A person is chargeable with recklessness when he is aware of a designated risk and consciously disregards it, while he is only criminally negligent if he fails to perceive the risk (Penal Law, § 15.05, subds 3, 4; People v Montanez, 41 NY2d 53, 56; People v Stanfield, 36 NY2d 467, 470). In addition, the Legislature has delineated, so far as possible, the degree of risk necessary for recklessness or criminal negligence: "The risk must be of such nature and degree that disregard thereof [or failure to perceive it] constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation” (Penal Law, § 15.05, subds 3, 4). Thus, to establish manslaughter in the sfecond degree, the prosecution must prove three elements: the creation of a substantial and unjustifiable risk; an awareness and disregard of the risk on the part of defendant; and a resulting death.

Ordinarily, the question whether the risk was of the type condemned by the Penal Law is to be decided by the trier of the facts, aided by appropriate instructions (e.g., People v Haney, 30 NY2d 328, 335, supra; see People v Angelo, 246 NY 451, 457-458, supra). In certain limited instances, however, where it is clear that the risk involved does not rise to the level of criminality, the court may be justified in concluding that the People have failed to carry their burden of proving a prima facie case (cf. People v Bearden, 290 NY 478). By the same token, where the prosecutor’s case rests entirely upon circumstantial evidence, a conviction for second degree manslaughter should be set aside if the facts do not exclude, to a moral certainty, every reasonable hypothesis but guilt (e.g., People v Montanez, 41 NY2d 53, 57-58, supra).

In this case, the People’s proof was not solely circumstantial. Rather, defendant’s own admissions, as related by prosecution witnesses, constitute direct evidence of many of the principal facts in issue (see People v Rumble, 45 NY2d 879, 880). For this reason, there is no occasion to apply the rigorous standard by which purely circumstantial cases are tested (e.g., People v Benzinger, 36 NY2d 29, 32).

Nor can it be said, as a matter of law, that the evidence was insufficient to establish a case of reckless homicide for submission to the jury. Viewed in the light most favorable to the People, the record demonstrates, in essence, that defendant removed a loaded revolver from his belt area, swung it across his body with his finger on the trigger, and allowed the barrel to point in the direction of another person, barely three feet away. Although the discharge of the weapon may well have been unintentional, the jury was entitled to consider whether the risk created by defendant’s actions was substantial, unjustifiable and constituted a gross deviation from the standard of conduct that a reasonable person would have observed.

In similar vein, there was ample evidence demonstrating defendant’s subjective awareness and conscious disregard of the risk. Of course, it is "defendant’s perception or nonperception of the risk of harm” which is controlling. But, as often the case with respect to state of mind questions, objective evidence of the surrounding circumstances may be weighed in making the factual determination (see, e.g., People v Stanfield, 36 NY2d 467, 472, supra). Among the factors to be considered in a case such as this are the defendant’s familiarity with weapons in general, as well as the particular gun, and his knowledge of whether the gun is likely to be loaded (see id., at p 472). Given the facts revealed by this record, including defendant’s possession of a permit for the revolver, and his admissions to the police, there is proof from which the jury could have found that defendant was well acquainted with the operation of the pistol, and knew that it was loaded at the time of the incident. From this, the jury could have properly drawn the factual conclusion that defendant was aware of the risk.

Defendant’s remaining contentions in support of the Appellate Division order of reversal are either beyond the review of this court or without merit.

Inasmuch as the Appellate Division reversal was on the law (CPL 470.25, subd 2, par [d]), there must be a remittal for a review of the facts (CPL 470.40, subd 2, par [b]). Accordingly, the order of the Appellate Division should be reversed and the matter remitted to that court for review of the facts.

Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur; Judge Fuchsberg taking no part.

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

       Defendant’s reliance upon People v Montanez (41 NY2d 53) is misplaced. In that case, the circumstantial evidence did not exclude, to a moral certainty, every reasonable hypothesis but guilt (41 NY2d, at pp 57-58). Specifically, the People there failed to prove their theory that defendant had recklessly threatened decedent with the revolver. Indeed, the jury could have found that the decedent, and not the defendant, produced the weapon and that defendant had only momentary possession of it before the accident. Moreover, due to the absence of ballistics testimony, the prosecution did not demonstrate that Montanez had his finger on the trigger when the weapon discharged nor negate the possibility that the gun had a "hair trigger” or other infirmity which could have caused it to discharge unexpectedly. In short, the facts in Montanez did not sufficiently rebut the reasonable hypothesis that death resulted from an unavoidable accident, rather than a criminal act.