author: Titone, J. Chief Judge Wachtlbr

text:
    In the Matter of Thomas J. Corbin, Appellant, v Judith A. Hillery, as Judge of the Dutchess County Court, et al., Respondents.
    Argued May 4, 1989;
    decided July 13, 1989

      POINTS OF COUNSEL

      Richard T. Farrell and Ilene J. Miller for appellant.
    I. The constitutional proscriptions against double jeopardy prohibit prosecution of the indictment in this case. (People v Okafore, 72 NY2d 81; Green v United States, 355 US 184; Brown v Ohio, 432 US 161; Blockburger v United States, 284 US 299; Illinois v Vitale, 447 US 410; Matter of Johnson v Morgenthau, 69 NY2d 148; Ashe v Swenson, 397 US 436; People v Lo Cicero, 14 NY2d 374; People v Martinis, 46 Misc 2d 1066, 25 AD2d 620; People v Heinsohn, 61 NY2d 855.) II. CPL article 40 protects appellant from further prosecution. (People v Abbamonte, 43 NY2d 74; Matter of Wiley v Altman, 52 NY2d 410; Matter of Abraham v Justices of N. Y. Supreme Ct., 37 NY2d 560; People v Thompson, 136 Misc 2d 740; Brown v Ohio, 432 US 161; Blockburger v United States, 284 US 299; Matter of Johnson v Morgenthau, 69 NY2d 148; People v Lindsly, 99 AD2d 99; Matter of Auer v Smith, 77 AD2d 172, 52 NY2d 1070; People v Rivera, 60 NY2d 110.) III. Neither law nor fact justify the County Judge treating the guilty plea as a nullity. (People v Rosebeck, 109 AD2d 915; People v Barkin, 49 NY2d 901; Anders v California, 386 US 738; People v Jones, 44 NY2d 76, 439 US 846; People v Snyder, 99 AD2d 83; People v Cuatt, 70 Misc 453; People v Dishaw, 54 AD2d 1122; Santobello v

      New York, 404 US 257; People v O’Doherty, 70 NY2d 479; People v Briggs, 38 NY2d 319.)

      William, V. Grady, District Attorney (Bridget Rahilly Steller of counsel), respondent pro se.

    I. Appellant’s prosecution by indictment ought to be continued. (People v Okafore, 72 NY2d 81; Illinois v Vitale, 447 US 410; North Carolina v Pearce, 395 US 711; People v Prescott, 66 NY2d 216, 475 US 1150; Block-burger v United States, 284 US 299; Brown v Ohio, 432 US 161; Iannelli v United States, 420 US 770; People v Schmidt, 124 Misc 2d 102; Thigpen v Roberts, 468 US 27; Illinois v Zegart, 452 US 948.) II. By virtue of Vehicle and Traffic Law § 1800 (d), appellant was properly charged by indictment with homicide and assault. (Matter of Martinis v Supreme Ct., 15 NY2d 240; People v Rivera, 60 NY2d 110; People v Moselle, 57 NY2d 97.) III. The County Court properly found that the October 27, 1987 Town of La Grange guilty pleas were a nullity. (Sage v Fairchild-Swearingen Corp., 70 NY2d 579; People v Wharton, 46 NY2d 924, 444 US 880; People v Snyder, 99 AD2d 83; People v Jones, 44 NY2d 76, 439 US 846; People v Gina M. M., 37 NY2d 880; Matter of Padilla, 109 AD2d 247; Bennett v Martoche, 123 Misc 2d 874; People v Casadei, 66 NY2d 846; People v Perry, 123 AD2d 492, 70 NY2d 626.)
   OPINION OF THE COURT

Titone, J.

At issue in this appeal is whether an individual who has previously pleaded guilty to the misdemeanor of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), as well as to a related traffic infraction, may subsequently be prosecuted on homicide, assault and other charges arising out of the same incident when the prosecution concedes its intention to use the facts underlying the former conviction to establish essential elements of the latter crimes. The constitutional problem has arisen in this case, despite the broad protections afforded by New York’s statutory double jeopardy provisions (CPL art 40), because, in this instance, those provisions are superseded by Vehicle and Traffic Law § 1800 (d), which purports to authorize a subsequent vehicular assault and homicide prosecution even though the defendant has previously been prosecuted for and convicted of traffic violations for the same acts. A subsidiary question exists as to whether petitioner is precluded from invoking his right to be free from successive prosecutions for the same conduct because he was guilty of procuring the prior conviction, without the prosecutor’s knowledge, as a means of avoiding prosecution for the more serious crimes (see, CPL 40.30 [2] [b]). Concluding that both issues should be resolved in petitioner’s favor, we now reverse the Appellate Division judgment to the contrary and hold that petitioner’s request for an order prohibiting further prosecution should have been granted.

I. Factual Background

On October 3, 1987, petitioner’s automobile allegedly crossed a double yellow line and struck two other vehicles. As a result, petitioner and the passenger of one of the other vehicles were seriously injured and another individual was killed. Tests performed after the accident revealed that petitioner had a .19% blood alcohol level.

On the night of the accident, while he was in the hospital being treated for his own injuries, petitioner was served with two uniform traffic tickets, returnable October 29, 1987, charging him, respectively, with operating a motor vehicle in an intoxicated condition (Vehicle and Traffic Law § 1192 [3]) and driving on the wrong side of the road (see, Vehicle and Traffic Law § 1120). The return date of these traffic tickets was subsequently changed, apparently without notice to the District Attorney, from the 29th to the 27th of October, a night on which the District Attorney’s office did not "cover” the Town Justice Court. The Assistant District Attorney who had prepared the paperwork on the traffic offense prosecutions (ADA Glick) was inexplicably unaware that the accident had resulted in a fatality and, consequently, his written submissions to the court, which included a cover letter, a CPL 710.30 notice and a "statement of readiness,” did not alert the court to the seriousness of the incident.

Petitioner appeared with his attorney on the scheduled return date and entered a plea of guilty to the charges contained in both traffic tickets. Petitioner’s attorney did not volunteer that the case involved a fatality and, in response to a question by the Town Justice, indicated that he had had contact with the District Attorney’s office about the case. Although counsel had apparently expressed a preference to have sentence imposed immediately, the court decided to postpone sentencing until November 17, 1987, because the file contained no sentencing recommendation from the prosecutor.

On the date set for sentencing, the People were represented by ADA Sauter, who was unaware that there had been a fatality, was unable to locate the file and had not spoken to ADA Glick about the case. Nevertheless, Sauter did not request an adjournment so that she could ascertain the facts necessary to make an informed sentencing recommendation. Petitioner’s attorney remained silent, although he was aware that petitioner’s automobile had been impounded in connection with an investigation of the accident. Thus, once again, the court remained ignorant of the severity of petitioner’s offense. Petitioner was ultimately sentenced on his guilty pleas to a fine, a six-month revocation of his driver’s license and other, related sanctions.

During the pendency of the traffic offense prosecution, other staff members within the District Attorney’s office had actively been investigating the possibility of pressing more serious charges against petitioner. ADA Chase, who was aware that a person had been killed in the accident, began as early as October 6, 1987 to gather evidence. Despite his active involvement in building a homicide case against petitioner, however, Chase did not attempt to ascertain the date petitioner was scheduled to appear in Town Justice Court on the traffic tickets, nor did he inform either the Town Justice Court or the Assistant District Attorney covering that court about his pending investigation. It was not until November 19, 1987, two days after the fact, that Chase learned of petitioner’s guilty plea and sentencing.

A Grand Jury presentment was finally made in early January, 1988. The delay was allegedly occasioned, at least in part, by difficulties that ADA Chase encountered in obtaining a report by an accident reconstructionist. On January 19, 1988, an indictment was issued charging petitioner with one count of reckless manslaughter (Penal Law § 125.15 [1]), two counts of second degree vehicular manslaughter (Penal Law § 125.12), one count of criminally negligent homicide (Penal Law § 125.10), one count of third degree reckless assault (Penal Law § 120.00 [2]), and two counts of driving while intoxicated (Vehicle and Traffic Law § 1192 [2], [3]).

Petitioner promptly moved to dismiss the indictment on double jeopardy grounds. The motion was denied, however, after a hearing in which the County Court in which the action was being prosecuted found that petitioner had procured the traffic prosecution, "without the knowledge of the appropriate prosecutor, for the purpose of avoiding prosecution” for the more serious homicide charges (see, CPL 40.30 [2] [b]). Petitioner then commenced the present article 78 proceeding for a writ of prohibition, asserting, once again, that double jeopardy principles barred the prosecution of the January 1988 indictment. The Appellate Division dismissed the petition, without opinion, and this appeal, taken as of right on constitutional grounds, ensued. We now reverse. Since the Double Jeopardy Clause of the United States Constitution bars prosecution of the homicide and assault counts and both the Double Jeopardy Clause and the provisions of CPL article 40 bar prosecution of the remaining counts, petitioner’s request for a writ of prohibition should have been granted.

II. CPL 40.30 (2) (b)

As a threshold matter, we address the application of CPL 40.30 (2) (b), which was the basis of the County Court’s refusal to dismiss the indictment. That subdivision provides for an exception to the general statutory prohibition against successive prosecutions (see, CPL 40.20) in cases where the previous prosecution "was for a lesser offense than could have been charged under the facts of the case, and the prosecution was procured by the defendant, without the knowledge of the appropriate prosecutor, for the purpose of avoiding prosecution for a greater offense.” Although this provision has not previously been construed by our court, it is apparent that it was intended primarily to address situations in which the defendant or his attorney induces a local criminal court, before the District Attorney has entered the picture, to accept a guilty plea and enter a conviction for a relatively minor offense as a means of foreclosing the possibility of a prosecution for a more serious offense in superior court (Staff Comment to Proposed CPL 20.30 [2] [b], at 58, cited in 3 Zett, NY Crim Prac ¶ 22.5 [2], at 22-26, & n 15 [1986 ed]; see, People v Dishaw, 54 AD2d 1122). While not necessarily limited to such situations, the provision evidently was designed primarily to withhold statutory double jeopardy protection in those situations where the responsible prosecuting authority did not have the opportunity to be heard or to apprise the court of the aggravating facts before a conviction for a mere infraction or lesser misdemeanor was entered.

Thus, it is a principal requirement for the application of CPL 40.30 (2) (b) that the prior prosecution have been procured "without the knowledge of the appropriate prosecutor” (see generally, People v Daby, 56 AD2d 873). In this case, that requirement is simply not satisfied. Although no representative of the Dutchess County District Attorney, the "appropriate prosecutor” (see, id.), was present on October 27, 1987, the date petitioner’s guilty plea was accepted, the District Attorney’s office had actively participated in the traffic infraction prosecution in the Town Justice Court by filing a CPL 710.30 notice and a statement of readiness. Moreover, the District Attorney’s office was represented at the sentencing, the final step in what CPL 40.30 (1) (a) defines as a "prior prosecution” for purposes of the statutory double jeopardy rules (see, People v Snyder, 99 AD2d 83, 85). Accordingly, while petitioner and his counsel may have been less than forthcoming in their dealings with the Town Justice Court at the time that petitioner’s guilty plea was entered, it certainly cannot be said that the traffic infraction prosecution was conducted, or the conviction obtained, without the knowledge of the Dutchess County District Attorney’s office.

Further, whether or not petitioner’s attorney deceived the Town Justice Court, as the dissenter contends, it cannot be said that that the District Attorney’s opportunity to oppose the lenient disposition was lost because of any misconduct by either petitioner or his attorney. Rather, that opportunity was lost, and the Town Justice was left without a reason to reconsider petitioner’s previously entered guilty plea (see, Matter of Lockett v Juviler, 65 NY2d 182, 186-187), because the prosecuting Assistant District Attorney’s admitted lack of familiarity with the details of the case led her to remain silent at the sentencing. Thus, to apply CPL 40.30 (2) (b) here would be to extend it well beyond the intended scope of its coverage. Accordingly, we decline to invoke the statute and thereby override petitioner’s right to be free from successive prosecutions in these circumstances. That conclusion leads us directly to our consideration of the complex statutory and constitutional problems that this appeal presents.

III. Vehicle and Traffic Law § 1800 (d)

Analysis of the rules governing successive prosecutions in cases involving vehicular crimes must begin with Vehicle and Traffic Law § 1800 (d), which provides that a conviction for a violation of any of the Vehicle and Traffic Law’s prohibitions “shall not be a bar to a prosecution for an assault or for a homicide committed by any person in operating a motor vehicle”. Because this is a specific statute obviously enacted for a special purpose, it must be deemed to take precedence over the more general rules for successive prosecutions that are contained in CPL article 40 (see, Matter of Martinis v Supreme Ct., 15 NY2d 240, 249 [plurality opn per Dye, J.]; see also, McKinney’s Cons Laws of NY, Book 1, Statutes § 397). Thus, Vehicle and Traffic Law § 1800 (d) supersedes CPL 40.20 and, to the extent that it does not conflict with constitutional double jeopardy principles, it permits successive prosecution for homicide and assault charges, notwithstanding a prior prosecution for traffic offenses arising out of the same incident (see, CPL 40.20 [2]). Since petitioner was charged with homicide and assault crimes in the first five counts of the challenged indictment, Vehicle and Traffic Law § 1800 (d) is directly implicated and we must therefore consider whether that statute may constitutionally be applied in these circumstances.

Our court has previously had occasion to consider the double jeopardy implications of section 1800 (d) (Matter of Martinis v Supreme Ct. (supra). However, the split decision in that case did not definitively resolve the constitutional problem presented by that statute, particularly in light of the evolving nature of the Federal constitutional double jeopardy rule. Accordingly, cases arising under that statute still possess a constitutional dimension, and it is to that dimension that we must now turn.

IV. Federal Double Jeopardy Principles

Our Federal constitutional analysis must begin with Block-burger v United States (284 US 299), in which the Supreme Court discussed what constitutes the "same offense” for purposes of the Federal Double Jeopardy Clause. Under the familiar Blockburger rule, if " 'each [penal] statute requires proof of an additional fact which the other does not/ ” the offenses are not the same and successive prosecution is not forbidden (Brown v Ohio, 432 US 161, quoting Morey v Commonwealth, 108 Mass 433, 434). The Blockburger test "focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial” (Illinois v Vitale, 447 US 410, 416). In essence, to be the "same offense” within the meaning of the Federal Double Jeopardy Clause the crimes must have essentially the same statutory elements or one must be a lesser included offense of the other.

Accordingly, in Illinois v Vitale (supra), the Supreme Court refused to prohibit a reckless manslaughter prosecution that arose out of a traffic incident although the defendant had already been charged with and had pleaded guilty to a traffic infraction ("failure to slow”) arising out of the same incident. The Vitale court stressed that reckless manslaughter did not, as a general rule, require proof of failure to slow and thus was not the "same offense” as failure to slow within the Blockburger analysis. However, the court also went on to note, in pointed dictum, that there would be a "substantial” double jeopardy problem if, on the trial of the manslaughter charge, the prosecution "relies on and proves a failure to slow * * * as the reckless act necessary to prove manslaughter” (447 US, at 421).

This dictum has direct application in this case. Although reckless manslaughter (Penal Law § 125.15 [1]) (count 1), second degree vehicular manslaughter (Penal Law § 125.12) (counts 2 and 3), criminally negligent homicide (Penal Law § 125.10) (count 4) and third degree reckless assault (Penal Law § 120.00 [2]) (count 5) are clearly not the "same offenses” as the traffic offenses to which petitioner previously pleaded guilty, i.e., driving while intoxicated (Vehicle and Traffic Law § 1192 [3]) and failing to keep right (Vehicle and Traffic Law § 1120; see, Illinois v Vitale, supra; Blockburger v United States, supra), the prosecution here has affirmatively stated in its bill of particulars that it intends to use the acts underlying the latter offenses as the major part of its proof on the reckless and negligence elements of the former crimes. This statement of the prosecution’s theory became a part of its pleadings and, until amended, was binding on the People (see, People v Shealy, 51 NY2d 933; People v Barnes, 50 NY2d 375, 379, n 3; see also, People v Grega, 72 NY2d 489, 498). Thus, unlike in Illinois v Vitale (supra), there is no need in this case to await the trial to ascertain whether the prosecution will rely on the prior traffic offenses as the acts necessary to prove the homicide and assault charges. The "substantial” double jeopardy problem identified in Vitale is apparent on the face of the People’s pleadings here. Accordingly, prosecution of the homicide and assault counts in this indictment (counts 1-5) is constitutionally prohibited, and Vehicle and Traffic Law § 1800 (d) cannot constitutionally be applied.

V. Counts 6 and 7

We consider the last two indictment counts separately because the analysis for these counts is different and, in fact, does not require resort to Federal constitutional double jeopardy principles. Since neither count charges a homicide or an assault crime, Vehicle and Traffic Law § 1800 (d) is inapplicable by its terms and, thus, CPL 40.20, the general statutory double jeopardy provision, is controlling.

CPL 40.20 (2) clearly prohibits prosecution of these counts, since they unquestionably arose out of the “same transaction” as the traffic offenses to which petitioner previously pleaded guilty. Further, although not necessary to our holding, we note that these counts charge offenses which are indistinguishable from the misdemeanor to which petitioner previously pleaded guilty and, consequently, prosecution of these counts falls squarely within the constitutional double jeopardy prohibition. Accordingly, prosecution of these counts is now barred.

VI. Conclusion

Notwithstanding the language of Vehicle and Traffic Law § 1800 (d), the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution bars prosecution of the homicide and assault offenses charged in the indictment. The remainder of the indictment charges are barred by our State’s statutory rules governing successive prosecutions. Accordingly, the judgment of the Appellate Division dismissing the petition should be reversed, without costs, the petition granted and further prosecution prohibited.

Chief Judge Wachtlbr

(dissenting). It devalues the Double Jeopardy Clause of the Fifth Amendment of the Federal Constitution when a defendant, unquestionably intoxicated at the time his auto struck and killed a person, avoids a homicide prosecution by actively misleading a Justice of the Peace into believing that no accident occurred, and no one was killed. CPL 40.30 (2) (b) prevents such fraudulent schemes to avoid criminal liability, by stating that a prosecution “procured by the defendant, without the knowledge of the appropriate prosecutor, for the purpose of avoiding prosecution for a greater offense” cannot be invoked as a bar to the reprosecution under double jeopardy principles.

In the case now before us, petitioner, while intoxicated, drove his car across the center line, hitting another auto head on and killing a person. He then appeared in local court, and, with no District Attorney present, his attorney intentionally misled the court by stating that the District Attorney had been consulted on the case. Petitioner then pleaded guilty to a misdemeanor — driving while intoxicated — in order to prevent prosecution for homicide. Therefore this case falls squarely within CPL 40.30 (2) (b) and the homicide prosecution should not be barred.

Indeed, two courts with power to review the facts — County Court and the Appellate Division — found that defendant’s attorney intentionally misled the Justice of the Peace, and procured a minor conviction for his client, Corbin, so that criminal responsibility for causing a death could be avoided. This court has no power to find new facts in this case. At this stage of appeal, it is imprudent and unwarranted for the majority to dispense with the factual assessments of those closest to the events, and on the dry record reach a different conclusion, all so that a constitutional question can be reached.

Moreover, lest there be any mistake, I note that the majority’s test for "procurement,” applied for the first time here, is woven from whole cloth tailored for the purpose of reaching the conclusion the majority desires. There is nothing in the case law, the statutory language, or the principles of double jeopardy from which a test focussing on the "opportunity to oppose the lenient disposition” by the District Attorney can be devised. Double jeopardy means being prosecuted by the State twice for the same conduct. Procurement means engineering your own prosecution and conviction on a lesser crime to avoid full punishment for criminal acts. In this case, using deception, petitioner prosecuted himself, toward the end of avoiding criminal liability for causing the death of another. This is procurement, as the lower courts found, and for that reason I respectfully dissent.

The lengthy footnote preachments of the majority do not, in the main, require comment. One does. The two lower courts found the facts as I have stated them in this opinion. These findings are supported by the record, as the majority opinion itself manifests (see, majority opn, at 283) and they should not be rejected or ignored by the majority.

Judges Kaye, Alexander and Hancock, Jr., concur with Judge Titone; Chief Judge Wachtler dissents and votes to affirm in a separate opinion in which Judge Bellacosa concurs; Judge Simons taking no part.

Judgment reversed, etc.

      . The relevant portion of the transcript of the proceedings reads as follows:
      "JUDGE: Have you contacted [the] ADA’s office?
      "ATTY: Yes. We have received papers. We have also discussed this matter with Mr. Corbin [petitioner].”
      In fact, counsel’s only "contact” with the District Attorney’s office was his receipt of ADA Click’s CPL 710.30 notice and statement of readiness.

        . Count 2 charged petitioner with negligently causing death while driving with a blood alcohol count of .10% in violation of Vehicle and Traffic Law § 1192 (2). Count 3 charged him with negligently causing death while operating a motor vehicle in an intoxicated condition in violation of Vehicle and Traffic Law § 1192 (3).

      . Of course, prohibition lies to restrain violations of both statutory and constitutional double jeopardy rights (see, e.g., Matter of Plummer v Roth-wax, 63 NY2d 243, 249, n 4; Matter of Wiley v Altman, 52 NY2d 410, 412, n 2; Hall v Potoker, 49 NY2d 501, 505, n 1; Matter of Abraham v Justices of N. Y. Supreme Ct., 37 NY2d 560, 564). Further, an aggrieved defendant may seek immediate relief in the form of prohibition even where, as here, he has already made an unsuccessful motion to dismiss in the criminal court in which the challenged indictment is being prosecuted (Matter of Wiley v Altman, supra, at 412-413, n 2).

      . We must take issue with the dissenter’s suggestion that we have "imprudent[ly]” reviewed the facts despite a lack of power to do so (dissenting opn, at 292). First, the "affirmed finding of fact” doctrine (see, Cohen and Karger, Powers of the New York Court of Appeals § 111 [rev ed]) has no application here, since the Appellate Division was the court of first instance in this prohibition proceeding. Second, there is no reason to assume that the Appellate Division did, in fact, review the "facts” that were before the County Court on petitioner’s prior motion to dismiss the indictment, since the former court’s dismissal of the proceeding, without opinion, could have been based instead upon its disposition of any number of threshold procedural questions (see, Matter of Forte v Supreme Ct., 48 NY2d 179, 184-185). Finally, even if the Appellate Division had reviewed the facts and even if it had made findings that were binding on this court, we would still be obliged to examine the record to ensure that the findings are at least minimally supported by the evidence (see, Cohen and Karger, op. cit., § 116).

      . The dissenter objects to our emphasis on the role assigned to the District Attorney under CPL 40.30 (2) (b) (see, dissenting opn, at 292), but offers no interpretation of his own for the statutory use of the phrase "without the knowledge of the appropriate prosecutor.” Indeed, the dissenter’s formulation of the statute’s reach ("[procurement means engineering your own prosecution and conviction on a lesser crime to avoid full punishment for criminal acts” [dissenting opn, at 292]), as well as his analysis of petitioner’s case, seems to ignore this aspect of the statute entirely. Significantly, the facts in this case do not even satisfy the dissenter’s formulation of evasive engineering, since petitioner did not ask to be charged with the lesser traffic infractions, was not responsible for the change in appearance date which led to the District Attorney’s absence at the plea allocution and, most certainly, did not "engineer” the Town Justice’s ignorance of the facts surrounding his case. If anything, the latter circumstance was "engineered” by the District Attorney’s office, which failed at every possible turn to bring the necessary facts to the Justice Court’s attention.

      . We note, however, that, contrary to the dissenter’s contention, petitioner did not "actively [mislead] a Justice of the Peace into believing that no accident occurred, and no one was killed.” (Dissenting opn, at 291). In fact, petitioner made no representations at all, "active” or otherwise, about the occurrence of an accident or the results of that accident. The sole discussion on the record that preceded the formal plea allocution on October 27, 1989 is reproduced in footnote 1 above (majority opn, at 283). As is evident from the quoted colloquy, petitioner’s attorney merely responded, in arguably truthful terms, to a simple question from the Town Justice as to whether counsel had had contact with the District Attorney. Further, the Town Justice’s own hearing testimony negates any possibility that the attorney’s conduct, whether misleading or not, was a causative factor in the lenient disposition petitioner received. The Justice testified that he asked his question specifically to elicit whether counsel "had some kind of letter or documentation from the District Attorney’s office indicating their disposition as to sentencing,” so that he "could have accepted the plea and sentenced [defendant] on that night.” Having learned through counsel’s response that no such documentation existed, the Justice postponed sentencing to give the District Attorney an opportunity to appear. Thus, whatever counsel intended by his terse response, it is apparent that the comment did not persuade the court to take action that was favorable to his client. Further, while counsel may have been less than forthcoming, both at the plea allocution and at the sentencing, and was unquestionably attempting to take advantage of the highly favorable tactical situation created by the prosecutor’s omissions, we are reluctant to characterize his behavior as misconduct, much less to construe CPL 40.30 (2) (b) in such a way as to encompass these circumstances (see, People v Snyder, 99 AD2d 83; cf., People v Dishaw, 54 AD2d 1122). While an attorney may certainly not, directly or indirectly, misrepresent the facts, a practitioner representing a client at a traffic violation prosecution should not be expected to volunteer information that is likely to be highly damaging to his client’s position.

      . Even without regard to the analysis in Illinois v Vitale (447 US 410), prosecution of the two second degree vehicular manslaughter counts against petitioner (counts 2 and 3) is prohibited because those crimes are the "same offense” within the meaning of the traditional Blockburger test. Second degree vehicular manslaughter is, in essence, the crime of criminally negligent homicide (see, Penal Law § 125.10), with driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2) or (3) as an aggravating factor. Thus, driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (3), the offense to which petitioner pleaded guilty, is unquestionably a lesser included offense of second degree vehicular manslaughter, as that crime was charged in count 3 of the indictment, and, accordingly, it is the "same offense” under Blockburger. Further, while count 2 of the indictment charged second degree manslaughter while driving in violation of Vehicle and Traffic Law § 1192 (2), a linguistically different offense from the one to which petitioner pleaded, the proof necessary to establish the "driving while intoxicated” elements of each of these crimes is the same. Consequently, the crimes charged in count 2 should also be considered the "same offense” for purposes of Blockburger.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Irving W. Levine, a Judge of the Civil Court of the City of New York, Kings County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued September 6, 1989;
    decided October 13, 1989

      POINTS OF COUNSEL

      Nathan R. Sobel for petitioner.
    The sanction of "removal” imposed by the Commission on Judge Levine is unduly harsh, inappropriate and disproportionate to the conduct stipulated. (Friedman v State of New York, 24 NY2d 528.)

      Gerald Stern and Jean M. Savanyu for respondent.
    I. Petitioner’s conduct violated established ethical standards and warrants removal from office. (Matter of Byrne, 47 NY2d [b]; Matter of Kuehnel, 45 NY2d [y]; Matter of Bulger v State Commn. on Judicial Conduct, 48 NY2d 32; Matter of Greenfeld, 71 NY2d 389; Matter of Fabrizio, 65 NY2d 275; Matter of Kuehnel v State Commn. on Judicial Conduct, 49 NY2d 465.) II. Petitioner has stipulated that he lied to the FBI, and he should be held to his stipulation. (People v Francis, 38 NY2d 150; People v Tinsley, 35 NY2d 926; People v McKennion, 27 NY2d 671; People v Bowers, 45 AD2d 241; People v Dixon, 29 NY2d 55; People v Miller, 42 NY2d 946; People v Garrett, 43 AD2d 503; Hallock v State of New York, 64 NY2d 224; Matter of Frutiger, 29 NY2d 143; Campbell v Bussing, 274 App Div 893.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, a Judge of the Civil Court of the City of New York, is charged with violating the Rules of Judicial Conduct. The charges are based upon petitioner’s promise to a former political leader that he would adjourn a pending case at the leader’s request (charge I) and his false statements to agents of the Federal Bureau of Investigation (charge II). The Commission on Judicial Conduct sustained the charges and determined that petitioner should be removed from office. After reviewing the record, we agree that the determination is supported by the evidence and that the sanction of removal is warranted.

The matter was submitted on an agreed statement of facts pursuant to section 44 (5) of the Judiciary Law and petitioner stipulated that the Commission would make its determination based on the pleadings and the agreed facts. The statement established that in December 1985 the Public Administrator of Kings County advised petitioner that Meade Esposito, former chairman of the Executive Committee of the Kings County Democratic Party, desired to speak with him. Petitioner then contacted Esposito and the two men set up a breakfast meeting for December 3, 1985. At the meeting, Esposito informed petitioner that a close friend was a defendant in a commercial holdover proceeding that was before the petitioner (2121 Emmons Ave. Corp. v Randazzo Clam Bar). Esposito told petitioner that his friend was in the process of constructing new premises for her restaurant, Randazzo’s Clam Bar, and needed an adjournment of approximately three months to allow completion of construction and relocation. Petitioner, who was aware at the time of this meeting that he had previously presided over the case and that it was to come before him again, told Esposito that he would grant the adjournment as requested. As the two men were about to part, petitioner kissed Esposito on the forehead.

Later that same day, petitioner presided over the matter and adjourned it until December 17, 1985, pursuant to the requests of counsel for both parties. In the subsequent three months, petitioner presided over the case and granted three more adjournments, even after he was assigned to Criminal Court. At no time during the course of the proceedings did petitioner inform the attorneys in the proceeding of his meeting with Esposito.

The agreed statement of facts also establishes that on June 2, 1986, two FBI agents visited petitioner and asked him if he had met with Esposito on December 3, 1985 and, if so, whether the Randazzo Clam Bar case was discussed at the meeting. In the statement, petitioner agreed that he "lied when he told the FBI agents that he did not recall the subject of his conversation with Mr. Esposito and that he did not discuss the Randazzo Clam Bar case.” In fact, the statement reflects that he recalled the conversation at the time of the FBI interview but he "lied to protect Mr. Esposito.”

The Commission voted unanimously to sustain the charges against petitioner and determined that he should be removed from judicial office. In seeking review by this court, petitioner concedes that his conduct was improper, but argues that the extreme sanction of removal is unwarranted.

The record indicates that petitioner agreed to adjourn the Randazzo Clam Bar case pursuant to Esposito’s request. Petitioner admits that the promise, standing alone, was "wrong”. However, he argues that he anticipated the parties would consent to the adjournments and that he did nothing to keep his promise or interfere with the disposition of the Randazzo Clam Bar case. These highly speculative contentions are irrelevant in judging petitioner’s completed act of misconduct. In agreeing to adjourn the case, petitioner conveyed the impression that the former political leader was in a special position to influence his decision making, contrary to the provisions of section 100.2 (c) of the Rules Governing Judicial Conduct (22 NYCRR 100.2 [c]). Moreover, petitioner had the duty to uphold the independence and integrity of the judiciary by not engaging in ex parte communications concerning a pending matter (see, Code of Judicial Conduct Canons 1, 3 [A] [4]; 22 NYCRR 100.1, 100.3 [a] [4]). Instead, by his conduct petitioner conveyed the impression in an ex parte communication that his rulings would not be based on merit but on his allegiance and loyalty to the former political leader (see, Matter of Cunningham, 57 NY2d 270, 274-275; Code of Judicial Conduct Canon 2). Petitioner then proceeded to exacerbate his misconduct by lying to the FBI agents when questioned about the meeting with Mr. Esposito.

Such conduct jeopardizes the public confidence in the integrity and impartiality of the judiciary, indispensable to the administration of justice in our society, and warrants removal from office (see, Matter of Cohen, 74 NY2d 272, 278).

Accordingly, the determined sanction of removal should be accepted, without costs.

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

Determined sanction accepted, without costs, and Irving W. Levine removed from the office of Judge of the Civil Court of the City of New York, Kings County.


author: Simons, J.

text:
    A. Meyers & Sons Corp., Appellant, v Zurich American Insurance Group et al., Respondents.
    Argued September 13, 1989;
    decided October 17, 1989

      POINTS OF COUNSEL

      Gregory E. Galterio for appellant.
    I. Long-standing principles of insurance law, public policy and fundamental fairness require liberal construction of comprehensive general liability insurance policies. (Doyle v Allstate Ins. Co., 1 NY2d 439; Avondale Indus. v Travelers Indem. Co., 697 F Supp 1314; Villa Charlotte Bronte v Commercial Union Ins. Co., 64 NY2d 846; Servidone Constr. Corp. v Security Ins. Co., 64 NY2d 419; Seaboard Sur. Co. v Gillette Co., 64 NY2d 304; Apache Foam Prods. v Continental Ins. Co., 139 AD2d 933; Muhlstock & Co. v American Home Assur. Co., 117 AD2d 117; Spoor-Lasher Co. v Aetna Cas. & Sur. Co., 39 NY2d 875; Utica Mut. Ins. Co. v Cherry, 38 NY2d 735; Ruder & Finn v Seaboard Sur. Co., 71 AD2d 216, 52 NY2d 663.) II. The courts below erred as a matter of law in determining that the ITC action is not a "suit against the insured seeking damages” within the meaning of the CGL policy. (New Castle County v Hartford Acc. & Indem. Co., 673 F Supp 1359; Avondale Indus. v Travelers Indem. Co., 697 F Supp 1314; Doyle v Allstate Ins. Co., 1 NY2d 439; State of New York v Amro Realty Corp., 697 F Supp 99; Sokolowski v Aetna Life & Cas. Co., 670 F Supp 1199; City of Ypsilanti v Appalachian Ins. Co., 547 F Supp 823, 725 F2d 682; Chesapeake Utils. Corp. v American Home Assur. Corp., 704 F Supp 551; United States Fid. & Guar. Co. v Thomas Solvent Corp., 683 F Supp 1139; New Castle County v Hartford Acc. & Indem. Co., 673 F Supp 1359; Township of Gloucester v Maryland Cas. Co., 668 F Supp 394.) III. The courts below erred as a matter of law in determining that the Dennison complaint does not allege "advertising injury” as defined in the CGL policy. (John Deere Ins. Co. v Shamrock Indus., 696 F Supp 434; Liberty Life Ins. Co. v Commercial Union Ins. Co., 857 F2d 945; Playboy Enters, v St. Paul Fire & Mar. Ins. Co., 769 F2d 425; Dior v Milton, 9 Misc 2d 425, 2 AD2d 878; Electrolux Corp. v Val-Worth, Inc., 6 NY2d 556; Metropolitan Opera Assn. v Wagner-Nichols Recorder Corp., 279 App Div 632; Doyle v Allstate Ins. Co., 1 NY2d 439.) IV. Zurich is estopped from disclaiming its duty to defend the ITC action. (Triple Cities Constr. Co. v Maryland Cas. Co., 4 NY2d 443; Metropolitan Life Ins. Co. v Childs Co., 230 NY 285; Murray Oil Prods. v Royal Exch. Assur. Co., 21 NY2d 440; O’Dowd v American Sur. Co., 3 NY2d 347; Hartford Ins. Group v Mello, 81 AD2d 577; Newman v Ketani, 54 AD2d 926; County of Nassau v Royal Globe Ins. Co., 42 AD2d 755.)

      Ignatius John Melito and S. Dwight Stephens for respondents.
    I. No coverage is provided to Meyers since the Dennison complaint did not allege an "advertising injury” as that term is defined in the Zurich policy. (Bretton v Mutual of Omaha Ins. Co., 110 AD2d 46, 66 NY2d 1020; Caporino v Travelers Ins. Co., 62 NY2d 234; Government Employees Ins. Co. v Kligler, 42 NY2d 863; Wyman v Allstate Ins. Co., 29 AD2d 319; American Home Prods. Corp. v Liberty Mut. Ins. Co., 565 F Supp 1485; Murray Oil Prods. v Royal Exch. Assur. Co., 21 NY2d 440.) II. Zurich also had no duty to defend Meyers because the Zurich policy only obligates Zurich to defend suits seeking money damages, and the Dennison administrative action was solely for injunctive relief. (Doyle v Allstate Ins. Co., 1 NY2d 439; Aetna Cas. & Sur. Co. v Hanna, 224 F2d 499; Gulf & W. Indus. v Seaboard Sur. Co., 100 AD2d 820; Haines v St. Paul Fire & Mar. Ins. Co., 428 F Supp 435; Curtis v Loether, 415 US 189; Sealed Air Corp. v U. S. Intl. Trade Commn., 645 F2d 976; In re Convertible Rowing Exercises Patent Litig., 616 F Supp 1134; Young Engrs. v U. S. Intl. Trade Commn., 721 F2d 1305; Public Serv. Mut. Ins. Co. v Goldfarb, 53 NY2d 392; Servidone Constr. Corp. v Security Ins. Co., 64 NY2d 419.) III. There is no basis for Meyers to claim estoppel based upon Zurich’s prior payment of defense costs for a claim alleging advertising injury. (Ruder & Finn v Seaboard Sur. Co., 52 NY2d 663; Van Buren v Employers Ins. of Wausau, 98 AD2d 774; Hartford Acc. & Indem. Co. v Regent Nursing Home, 67 AD2d 935; Schiff Assocs. v Flack, 51 NY2d 692.)
   OPINION OF THE COURT

Simons, J.

Plaintiff A. Meyers & Sons Corp. commenced this declaratory judgment action against its insurer, defendant Zurich American Insurance Group, alleging that Meyers has been named defendant in a proceeding before the International Trade Commission (ITC) accusing it of causing an "advertising injury”. It contends that Zurich is obliged to provide it with a defense against the claim. The question on appeal is whether the complaint before the ITC alleged "advertising injury” within the meaning of plaintiff's general comprehensive liability insurance policy thus obligating Zurich to provide Meyers with a defense.

Under the policy Zurich promised to defend any suit against Meyers "seeking damages” on account of "advertising injury” arising out of Meyers’ "advertising activities”. The relevant clauses state:

"The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of * * * advertising injury to which this insurance applies, sustained by any person or organization and arising out of the conduct of the named insured’s business * * * and the Company shall have the right and duty to defend any suit against the insured seeking damages on account of such injury

* * *

" !'Advertising Injury ’ means injury arising out of an offense committed during the policy period occurring in the course of named insured’s advertising activities, if such injury arises out of libel, slander, defamation, violation of right of privacy, piracy, unfair competition or infringement of copyright, title, or slogan” (emphasis added).

On May 7, 1986, Dennison Manufacturing Company filed a complaint with the United States International Trade Commission pursuant to the Tariff Act of 1930 (19 USC § 1337) alleging that several companies, including Meyers, engaged in "unlawful manufacture, importation and sale of patented plastic fasteners” infringing upon Dennison’s patents. With respect to Meyers, Dennison alleged specifically that it ordered and received plastic fasteners from a Meyers price list which were found to have been manufactured by processes protected by one or more of Dennison’s patents. Dennison requested the Commission to immediately investigate the allegations and conduct a hearing on them. The relief sought was an exclusion order banning further importation of the infringing products and directing Meyers to cease and desist selling any infringing products previously imported into the United States.

On June 13, 1986 the ITC served a notice of investigation on Meyers informing it that a complaint had been filed alleging "unfair methods of competition and unfair acts in the importation [and sale] of certain plastic fasteners into the United States”. The notice, described the "Scope of Investigation” as limited to determining whether an unlawful importation or sale of plastic fasteners occurred, thus infringing several Dennison patents. After receiving the notice, Meyers requested Zurich to provide a defense to the proceeding basing its claim on the advertising injury coverage provided in its comprehensive general liability policy. When Zurich refused to do so Meyers commenced this declaratory judgment action and moved for summary judgment. Zurich filed a similar motion seeking a declaration that it had no duty to defend Meyers because the allegations in the Dennison complaint before the ITC arose out of illegal importation and selling of products in violation of certain patents, not out of Meyers’ advertising activities.

Supreme Court granted Zurich summary judgment, declaring that the complaint did not allege false or misleading advertising and, therefore, was not within the scope of the policy. The court held further that Zurich was not obligated to defend Meyers because the ITC proceeding was limited to injunctive relief and did not seek money damages. The Appellate Division affirmed, without opinion, and we granted leave to appeal.

The duty of a liability insurer to defend an action brought against an insured is determined by the allegations in the complaint (see, Servidone Constr. Corp. v Security Ins. Co., 64 NY2d 419, 424). If the facts alleged raise a reasonable possibility that the insured may be held liable for some act or omission covered by the policy, then the insurer must defend (see, Ruder & Finn v Seaboard Sur. Co., 52 NY2d 663, 669-670). If no such possibility is raised, no duty to defend is owed under the policy. Accordingly, upon a motion such as this the court’s duty is to compare the allegations of the complaint to the terms of the policy to determine whether a duty to defend exists (see, Technicon Elecs. Corp. v American Home Assur. Co., 74 NY2d 66, 73). In construing the policy the court must examine "the entire contract to determine its purpose and effect and the apparent intent of the parties” (see, Murray Oil Prods. v Royal Exch. Assur. Co., 21 NY2d 440, 445).

Under the "advertising injury” language of this policy, a claim due to injury from "libel, slander, defamation, violation of right of privacy, piracy, unfair competition or infringement of copyright, title or slogan” must also "aris[e] out of an offense * * * occurring in the course of named insured’s advertising activities.” Thus, to trigger Zurich’s duty to defend, the claimed injury must both arise out of an offense occurring in the course of the insured’s "advertising activities” and constitute one of the enumerated offenses.

Meyers claims that the charge of "unfair competition” in Dennison’s complaint requires Zurich to provide a defense under the "advertising injury” provisions of the policy. However, an examination of Dennison’s 47-page complaint indicates that it alleges injury arising out of thq manufacture, importation and sale in the United States of plastic fasteners which infringe Dennison’s patents. The "Summary of Complaint”, found at the beginning of the pleading, states that it is the "importations” of these goods which constitute the acts of "unfair competition” and give rise to the injury. The body of the complaint alleges harm arising out of the "importation” and "sale” of products which infringed upon patents owned by Dennison, not injury arising out of Meyers’ "advertising activities”. The complaint concludes with a "Prayer for Relief’ focusing on the illegal manufacture and sale of infringing products and seeking an order enjoining these activities without reference to preventing any type of false, misleading or injurious advertising.

Dennison’s complaint was similarly interpreted in ITC’s "Notice of Investigation” summarizing the claim served upon Meyers. It states that Dennison’s complaint "alleges unfair methods of competition and unfair acts in the importation of certain plastic fasteners * * * by reason of alleged manufacture abroad by a process which, if practiced in the United States, would infringe [several United States patents]” (emphasis added). It is clear that the policy, when read in context, does not cover acts of "unfair competition” arising out of the illegal manufacturing, importation and sale of goods in violation of another’s patent rights and that the activity Dennison complains of is not one covered under the policy.

Meyers also contends that the price list it circulated to its customers constituted "advertising activity” and therefore brings the complaint within the policy’s coverage. The price list, which was attached to Dennison’s complaint, merely enumerates the price and size of the various fasteners, however, and makes no false, misleading or deceptive claims that the product is unique. The complaint does not allege harm based upon use of the price list and it appears to have been submitted solely as evidence that Meyers was selling the infringing product, a necessary element of proof in a complaint filed with the ITC under the Tariff Act (see, 19 CFR 210.20 [a] [9] [vii]).

We have considered plaintiff’s remaining contention that Zurich is estopped from disclaiming because of prior unrelated litigation and find it without merit. Having decided that the complaint before the ITC did not constitute a claim for "advertising injury”, we need not rule on the additional contention asserted by defendant that no coverage exists because the proceeding is not one seeking "damages” under the terms of the policy.

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

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs.


author: Bellacosa, J.

text:
    The People of the State of New York ex rel. Wilbur Harris, Appellant, v James Sullivan, as Superintendent of Sing Sing Correctional Facility, et al., Respondents.
    Argued September 7, 1989;
    decided October 17, 1989

      POINTS OF COUNSEL

      Carol Kahn for appellant.
    I. Executive Law § 259-i (3) (d) should be strictly construed to apply only to parolees who receive new New York indeterminate felony sentences while on parole. Petitioner Harris who received a new California definite felony sentence while on New York interstate parole was wrongly denied a final revocation hearing within 90 days of his return to New York and the writ should thus be granted. (Black v Romano, 471 US 606; Morrissey v Brewer, 408 US 471; Shepard v United States Bd. of Parole, 541 F2d 322; Heinz v McNutt, 582 F2d 1190; Moss v Patterson, 555 F2d 137; Moody v Daggett, 429 US 78; Matter of Alevras v Chairman, N. Y. Bd. of Parole, 118 AD2d 1020; People ex rel. Corby v Sullivan, 138 AD2d 432; People ex rel. Brown v New York State Bd. of Parole, 139 AD2d 548.) II. Assuming in the alternative that Harris’ interstate parole was properly revoked by operation of law in April 1987, the terms of his new California sentence made Harris entitled to a reconsideration hearing immediately on his return to New York; the appropriate remedy for a two-year delay in granting parole reconsideration is to grant the writ; an immediate reconsideration hearing is no meaningful remedy. (People ex rel. Grimmick [Zakrzewski] v McGreevy, 141 AD2d 989; Matter of Ortiz v Hammock, 96 AD2d 735.)

      Robert Abrams, Attorney-General (Howard L. Zwickel, O. Peter Sherwood, Lawrence S. Kahn and Burton Herman of
    counsel), for respondents.
    The Division of Parole properly revoked petitioner’s parole by operation of law pursuant to Executive Law § 259-i (3) (d) (iii) since petitioner was convicted of a felony in California which would also be a felony in New York and his three-year California sentence and l-to-3-year parole release period satisfies New York’s requirements of an indeterminate sentence. (Matter of Albano v Kirby, 36 NY2d 526; Matter of Anderson v Board of Educ., 46 AD2d 360; Matter of Pierre v Rodriguez, 131 AD2d 763; Matter of O’Quinn v New York State Bd. of Parole, 132 Misc 2d 92; Matter of Cohen v New York State Bd. of Parole, 131 Misc 2d 495; People ex rel. Conyers v New York State Div. of Parole, 130 Misc 2d. 33; People ex rel. Roper v Kennedy, 135 AD2d 924; Clark v Cuomo, 66 NY2d 185; Matter of Consolidated Edison Co. v Department of Envtl. Conservation, 71 NY2d 186; People ex rel. Corby v Sullivan, 138 AD2d 432.)
   OPINION OF THE COURT

Bellacosa, J.

Relator, an interstate compact parolee, seeks by habeas corpus to redress the revocation of his New York State parole based on his conviction and sentence for a new felony in California. Executive Law § 259-i (3) (d) (iii) authorizes the New York State Division of Parole to revoke, without a final hearing, the parole of a releasee subsequently convicted of a new felony and sentenced to an "indeterminate” term. The question is whether the dispensation from providing a final revocation hearing is applicable against this parolee, subsequently convicted and sentenced for the California felony. We conclude that it is not and hold that relator remained entitled to a timely final revocation hearing upon return to New York.

In 1982, relator had been released to parole supervision while serving an indeterminate term of 5 to 15 years’ imprisonment pursuant to a 1969 New York conviction of second degree burglary. He moved to California in 1983 and was placed under the supervision of California parole authorities pursuant to the Interstate Parole Compact (see, Executive Law § 259-m). Two years later, he was convicted of forcible rape in that State and was sentenced in Superior Court to three years’ imprisonment. By April 1987, having earned credit for good conduct and for time spent in local custody, relator was released to California parole supervision (California Penal Code § 3000 [a]; § 3001 [a]). Prior to the release date, a preliminary parole revocation hearing was held with respect to relator’s New York parole status (Executive Law § 259-o). He was returned thereafter to New York to resume his incarceration under the 1969 New York conviction and sentence, because the New York State Parole Board, pursuant to Executive Law § 259-i (3) (d) (iii), had revoked his parole without providing a final revocation hearing based on the California felony conviction and sentence.

Relator claims that he should be restored to parole status because the dispensation for the Parole Board from giving him a timely final parole revocation hearing does not apply to his situation. Supreme Court dismissed the writ, holding that Executive Law § 259-i (3) (d) (iii) authorized the revocation of relator’s parole by operation of law without the necessity of a final parole revocation hearing. The Appellate Division affirmed and we granted leave to appeal to our court.

As a general rule, a parolee detained in New York for allegedly violating parole is entitled to a preliminary hearing within 15 days of the execution of the parole warrant (Executive Law § 259-i [3] [c] [i]) and to a final revocation hearing within 90 days of the preliminary hearing (Executive Law § 259-i [3] [f] [i]). A parolee convicted of committing a new crime while on parole and sentenced to a new definite term, however, need only receive a final revocation hearing (Executive Law § 259-i [3] [d]); and a parolee convicted of committing a new felony and sentenced to an indeterminate term is not even entitled to a final revocation hearing by reason of a 1984 statutory amendment. Felons in the latter category are subject to revocation of parole by operation of law without any hearing (see, L 1984, ch 238, adding Executive Law § 259-i [3] [d] [iii]). The extension of the exemption from the final revocation hearing requirement to out-of-State convictions is the issue in this case. In pertinent part, the statute provides: "when a parolee * * * has been convicted of a new felony committed while under his present parole * * * supervision and a new indeterminate sentence has been imposed, the board’s rules shall provide for a final declaration of delinquency. * * * The inmate's next appearance before the board shall be governed by the legal requirements of said new indeterminate sentence, or shall occur as soon after a final reversal of the conviction as is practicable” (emphasis added).

Concededly, relator was convicted of a new felony while in California, but he argues that the exemption from the final revocation hearing requirement is limited to parolees who commit felonies and are sentenced indeterminately in New York.

Respondents refute that narrow interpretation, urging instead that the statutory exemption from providing a final revocation hearing extends to relator’s three-year California sentence for the crime of forcible rape. They ask us to treat that sentence as if it were an indeterminate sentence under New York law, thus qualifying for the dispensation enacted in subdivision (3) (d) (iii) of Executive Law § 259-i. The hypothesis proceeds from the premise that had relator committed a forcible rape in New York, he would have been found guilty of a class B violent felony (Penal Law § 130.35 [1]) and would have been given an indeterminate sentence (Penal Law § 70.00 [1] ,[4]).

The plain words of the statute, its stated purpose and relevant legislative history do not permit this expansive construction of the statute. A court is obliged to interpret a statute to effectuate the intent of the Legislature. When its language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of its words (see, Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 675). Here, the words excusing the usual requirement of a final revocation hearing are plain — a parolee must have been sentenced to an "indeterminate” term for the exemption to apply. The prior sentence this relator received in California is not "indeterminate”, facially, definitionally or functionally, as that term of art is used in New York (see, Penal Law § 70.00 [2] , [3]; Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 70, at 232).

The dispensation from hearing is the exception from the general requirement and cannot, under its enacted wording, be applicable against parolees subsequently convicted and sentenced for an out-of-State felony. Unlike a parolee convicted for a new felony and serving a new New York indeterminate sentence, the parolee who served a felony sentence outside New York still needs a new release consideration date to be set by the Parole Board by way of the timely final parole revocation hearing procedural mechanism. Relator’s parole was revoked without the prescribed timely hearing (Executive Law § 259-o [4]) and thus in violation of his statutory rights. The writ must, therefore, be sustained in this circumstance, with relator restored to parole status because, as we have noted, merely to order a hearing at this stage would render meaningless the timeliness requirement and relator’s remedy against noncompliance (People ex rel. Levy v Dalsheim, 66 AD2d 827, 828, affd 48 NY2d 1019; see also, Matter of Williams v Hammock, 57 NY2d 936, 937-938; People ex rel. Gonzales v Dalsheim, 52 NY2d 9, 17).

The legislative history of subdivision (3) (d) (iii) of Executive Law § 259-i — the revocation hearing exemption — confirms that the exception was intended to dispense with the requirement of a final revocation hearing in only the one instance where the hearing served no apparent purpose — that is, where the parolee has been convicted of a new felony and has been sentenced to a new indeterminate sentence. In those circumstances, a final parole revocation hearing would be a vain gesture because no fact finding by the Board of Parole would be necessary to ascertain that the parolee has in fact violated the conditions of his parole. The court of conviction and sentence would have already indisputably established that reality.

Additionally, when a parolee is convicted of a new New York felony and a new indeterminate sentence is imposed, a final parole revocation hearing is not needed to fix the parolee’s reappearance before the Board because the violator’s reappearance date is automatically fixed by law at the time of sentencing for the new felony (Penal Law § 70.00 [3]; § 70.25 [2-a]; Executive Law § 259-i [3] [d]). That functional reason for the hearing exemption is specifically referenced in the penultimate clause of the provision at issue in this case (see also, Assembly Rules Committee Mem, 1984 NY Legis Ann, at 110; Mem of Division of Parole, Nov. 19, 1984, Governor’s Bill Jacket, L 1984, ch 238). In relator’s case, however, because he was convicted of a felony in another State, served his sentence on that conviction in that State and was then returned to New York, his reappearance date is not fixed by law and rests entirely in the discretion of the Parole Board (see, Executive Law § 259-i [3] [f] [x]). Thus, while a final revocation hearing is redundant under New York’s distinctive sentencing scheme for purposes of setting a reappearance date after a new New York "indeterminate” sentence is imposed, there is no procedural surplusage where relator was sentenced to an out-of-State term which has no such consequence.

Notably, the Division of Parole has recognized a statutory gap with respect to parolees who are convicted of and serve time for felonies outside New York. Legislation has been proposed which would explicitly extend the dispensation from the final parole revocation hearing requirement to parolees convicted of and sentenced to out-of-State and Federal felonies (see, e.g., Senate Bill 7282, 1986 Legislative Session; see, Division of Parole Mem in support, dated Dec. 22, 1986). The rationale and justification have not been presented for judicially making that parallel out-of-State application. It is not for us to attempt to harmonize the very different situations presented with respect to parolees convicted and sentenced out of State who, at the very least, will still need a new parole appearance date fixed. The statutory hearing dispensation is plain and its stated purpose and practical operation confirm its limited application to parolees subsequently sentenced to a New York indeterminate felony term. A significant change of the kind urged by respondents, expanding such an exemption from the usual statutorily mandated hearing requirement, should come from the Legislature.

Accordingly, the order of the Appellate Division should be reversed, without costs, the petition granted, the writ of habeas corpus sustained and relator restored to parole status.

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

Order reversed, etc.


text:
    Bier Pension Plan Trust, Appellant, v Estate of Joel Schneierson, Respondent.
    Argued September 14, 1989;
    decided October 19, 1989

      POINTS OF COUNSEL

      Paula J. Warmuth and Joseph D. Stim for appellant.
    I. The acceptance, after maturity, of postmaturity interest (at the same rate as the obligation) is not sufficient consideration to support an oral agreement to extend the time to pay the note. (Becker v Faber, 280 NY 146, 730; Olmstead v Latimer, 158 NY 313; Dry Dock Sav. Inst. v 103 E. 75th St. Apts., 296 NY 280; Schmitt v Greenberg, 58 Misec 570; State of New York v Peerless Ins. Co., 108 AD2d 385; Douglass v Ferris, 138 NY 192; Howe Sewing Mach. Co. v Farrington, 82 NY 121; Fischer v Mahland, 191 App Div 209; Greenwich Sav. Bank v Eckford Realty Corp., 268 App Div 195; Page v Krekey, 137 NY 307.) II. There is no basis in the record for the court below to conclude on summary judgment that there was an agreement to extend. (New York Life Ins. Co. v Casey, 178 NY 381; R & W Jett v Futerman, 101 AD2d 1007; Sutton v East Riv. Sav. Bank, 55 NY2d 550.)

      Sandra Gale Behrle and James M. Latimer for respondent.
    I. The unassented to alteration to the underlying contract discharged the guarantor. (National Park Bank v Koehler, 204 NY 174; Becker v Faber, 280 NY 146; Congregation Ohavei Shalom v Comyns Bros., 123 AD2d 656; 125 W. 45th St. Rest. Corp. v Framax Realty Corp., 248 App Div 90, 273 NY 536; Greenwich Sav. Bank v Eckford Realty Corp., 268 App Div 195; Pitz v Munro, 161 Misc 206.) II. There was consideration to support the extension agreement. (Harvey v Morgan & Co., 166 Misc 455, 260 App Div 873; Albert v City of New York, 101 Misc 2d 356, 103 Misc 2d 962; Nyhus v Travel Mgt. Corp., 466 F2d 440; Greenwich Sav. Bank v Eckford Realty Corp., 268 App Div 195; Dry Dock Sav. Inst. v 103 E. 75th St. Apts., 296 NY 280; Fischer v Mahland, 191 App Div 209; Douglass v

      Ferris, 138 NY 192; Lowman v Yates, 37 NY 601; Howe Sewing Mach. Co. v Farrington, 82 NY 121; State of New York v Peerless Ins. Co., 108 AD2d 385, 67 NY2d 845.) III. The finding by the court below of an agreement to extend is supported by the record. (Antisdel v Williamson, 37 App Div 167, 165 NY 372; Goldman v Ehrenreich, 33 Misc 433; Krebs v Carpenter, 124 App Div 755; R & W Jett v Futerman, 101 AD2d 1007; Sutton v East Riv. Sav. Bank, 55 NY2d 550; New York Life Ins. Co. v Casey, 178 NY 381.)
   OPINION OF THE COURT

Simons, J.

Plaintiff brought this action against defendant, the estate of the surety of one Lieberman, to recover on a guarantee of Lieberman’s debt. The estate’s answer raised several defenses but on this appeal we are concerned only with the contention that it has been released from its undertaking because plaintiff altered the original contract with Lieberman.

Plaintiff alleges in its complaint that on November 1, 1983 it loaned Marvin Lieberman $280,000 for three months at 12% interest and that Joel Schneierson, defendant’s testator, guaranteed payment. Lieberman failed to pay the debt at maturity despite repeated requests that he do so. On May 28, 1985 he confessed judgment and, on July 11, 1986, plaintiff entered judgment on the confession for $344,500. Plaintiff then demanded defendant satisfy the judgment and commenced this action when it failed to do so. Plaintiff acknowledges that it did not proceed against Lieberman immediately and that Lieberman paid interest after maturity. However, it asserts in its motion papers that: "Plaintiff’s accommodation to the principal obligor to permit him additional time to make the payment did not prejudice or effect [sic] the defendant or its guarantee in any manner.”

Defendant contends that the "accommodation” was a new agreement between plaintiff and Lieberman, extending the loan and that plaintiff received payments of interest at 12% after the original debt had matured. It asserts that this extension, supported by consideration in the form of a 12% interest obligation rather than the legal rate due after default (i.e., 9%; see, CPLR 5004), changed the original three-month contract to one continuing the loan for a reasonable time and discharged it from its undertaking on the original note. Based on these facts, the parties made cross motions for summary judgment. Special Term denied both motions. Only defendant appealed to the Appellate Division, which reversed the order insofar as appealed from, and granted summary judgment to defendant. We granted leave to appeal and now reverse.

Under general contract rules, an obligation may not be altered without the consent of the party who assumed the obligation. Suretyship is a contractual relation and thus the rule is stated that the creditor and the principal debtor may not alter the surety’s undertaking to cover a different obligation without the surety’s consent. If they do so the surety is discharged because the parties have substituted a new contract, to which it never agreed, for the original (Becker v Faber, 280 NY 146, 148-149; see generally, 10 Williston, Contracts § 1211 et seq. [3d ed 1967]). If the surety is to remain liable on its undertaking, its right to make payment of the debt upon maturity of the indebtedness and, by subrogation to the creditor’s rights, to proceed against the principal debtor to obtain repayment may not be affected without its consent.

An obligation is altered when the debtor is discharged from, the original contract and a new contract is substituted in its place. The test is whether there is a new contract which will be enforced by the courts (Becker v Faber, 280 NY 146, 151, supra; 10 Williston, Contracts §§ 1221, 1239 [3d ed 1967]; Simpson, Suretyship, at 355). Obviously, if the debtor can assert a new contract in defense to an action on the original contract the surety may do so also and, since it did not guarantee performance of the new agreement, it cannot be held answerable for the principal debtor’s default (see, 10 Williston, Contracts § 1239 [3d ed 1967]). Conversely, if the principal debtor is bound by the original contract (because the new agreement is unenforceable for lack of consideration or fraudulently induced, for example) the original debt remains undischarged, the surety is answerable for the principal debt- or’s default and the surety’s right of subrogation against the debtor in accordance with the terms of the original contract is preserved.

If the creditor and principal debtor agree to extend maturity, then under the general rule the surety is discharged even if the term is extended only a few days (National Park Bank v Koehler, 204 NY 174; 10 Williston, Contracts § 1222 [3d ed 1967]). Indulgence or leniency in enforcing a debt when due is not an alteration of the contract, however. An unenforceable agreement to give time is merely revocable permission to defer performance. If the creditor retains the right to demand payment of the debt according to its original terms the surety is not discharged (Becker v Faber, supra; Powers v Silberstein, 108 NY 169,170).

Applying these rules to the present case, we conclude there are questions of fact whether plaintiff and Lieberman made an enforceable agreement to extend the terms of the debt. Some authorities have held that the payment of interest after maturity, standing alone, constitutes consideration and from that act a new contract to extend the loan for a reasonable time will be implied (see, e.g., Fanning v Murphy, 126 Wis 538, 105 NW 1056, 1063 [Dodge, J., concurring]; Strong v Sunset Copper Co., 9 Wash 2d 214, 114 P2d 526; Hackin v First Natl. Bank, 101 Ariz 350, 419 P2d 529; see also, Restatement [Second] of Contracts § 73, illustration 8). Our decisions, however, have consistently held otherwise (Becker v Faber, supra; Olmstead v Latimer, 158 NY 313; Kellogg v Olmsted, 25 NY 189; see also, New York Life Ins. Co. v Casey, 178 NY 381).

Defendant contends that the present case is distinguishable from earlier New York decisions because here plaintiff benefited from payment of an interest rate higher than that required by law. It notes that in Becker the rate was actually reduced after the debt matured and in Olmstead v Latimer (supra) it remained the same. It also cites cases in which the rate, although increased, was increased to correspond with a higher prevailing legal rate of interest (see, e.g., Neukirch v McHugh, 165 App Div 406; Sands v Gilleran, 159 App Div 37).

Notwithstanding these differences, and assuming interest at 12% was in fact paid, we believe that the rule stated in Olmstead v Latimer (supra) should be followed and that the acceptance of contract interest, even if it is higher than the prevailing legal rate of interest, should not bind the parties to extend the loan for a reasonable additional time. The Olmstead rule has been the law of this State for over 100 years and has the force of precedent and long acceptance by the business community. It is also supported by sound policy considerations, for any other rule would require a creditor to declare default and institute legal proceedings to collect the debt when the loan matures if payment is not made immediately. Even a delay of a day or two could risk loss of the surety’s undertaking (see, Becker v Faber, supra; National Park Bank v Koehler, supra). A lenient creditor’s only safe alternative would be to forego postmaturity interest, a result which penalizes forbearance and is contrary to the law’s preference for voluntary resolution of disputes. Conversely, the surety is not without remedies. It may protect itself against forbearance by reserving in the original contract the right to demand immediate default or, if it feels prejudiced by delay in enforcing the debt, it may pay the debt upon default and proceed by way of subrogation against the principal debtor to enforce repayment (see, National Park Bank v Koehler, 204 NY 174,179-180, supra).

Accordingly, the order of the Appellate Division should be reversed, with costs, and defendant’s motion for summary judgment denied.

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.

       The note reads as follows:
      "Nov. 1, 1983
      "Bier Pension Plan Trust "262 1/2 E. 62 St.
      "New York, N.Y.
      "Re: $280,000 Loan "Dear Mr. Bier:
      "We are herewith guarantying the loan of $280,000 made this day to Marvin Lieberman for a period of three months with interest at 12% per annum. If the loan is not paid at maturity, we guaranty its payment immediately.
      "s/Marvin Lieberman
      "s/Joel Schneierson”.


author: Alexander, J.

text:
    In the Matter of Yong-Myun Rho, Appellant, v Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued September 13, 1989;
    decided October 19, 1989

      POINTS OF COUNSEL

      Joseph Frost for appellant.
    I. The determination of negligence or incompetence in the conduct of the single autopsy is insufficient to support a finding of professional misconduct. II. The "locality rule” referred to by the court below has no application where equipment and resources necessary to apply superior skills and knowledge are unavailable. (Pike v Hon-singer, 155 NY 201.)

      Robert Abrams, Attorney-General (John J. O’Grady and O. Peter Sherwood of counsel), for respondents.
    I. Respondents’ finding that petitioner’s three separate derelictions within the single autopsy constituted negligence on more than one occasion is supported by the facts and is a rational interpretation of the statute. (Matter of Di Marsico v Ambach, 48 NY2d 576; Matter of Lumpkin v Department of Social Servs., 45 NY2d 351; Matter of Bernstein v Toia, 43 NY2d 437; Matter of Howard v Wyman, 28 NY2d 434; Matter of Gross v Ambach, 126 AD2d 1, 71 NY2d 859.) II. Petitioner was found guilty of negligence by the appropriate standard. (Toth v Community Hosp., 22 NY2d 255; Riley v Wieman, 137 AD2d 309.)
   OPINION OF THE COURT

Alexander, J.

In 1985, the State Board of Professional Medical Conduct charged petitioner, who had been licensed to practice medicine in New York since 1970, with professional misconduct under Education Law § 6509 (2). The Board alleged that petitioner, a Deputy Chief Medical Examiner for the New York City Medical Examiner’s office, had improperly conducted two autopsies. In particular, it charged that in one autopsy petitioner had inappropriately recorded the events leading to decedent J’s death under a heading on the death certificate titled cause of death and that, in the other autopsy, he had made seven specified errors in investigating and reporting decedent B’s gunshot wound.

After a hearing, a committee of the Board determined that the charges concerning decedent J had not been sustained but that two of the specifications of negligence or incompetence had been sustained regarding the autopsy of decedent B— petitioner had neglected to explain in the autopsy report why he could not ascertain the order in which the decedent had worn his clothes and had improperly and inadequately performed, documented, and interpreted a sodium rhodizonate test.

Nevertheless, the committee concluded that petitioner had not practiced medicine with negligence or incompetence "on more than one occasion” and recommended that no disciplinary action be taken. The Commissioner of Health recommended to respondent Board of Regents that the hearing committee’s findings of fact, conclusions, and recommendations be accepted in full.

Declaring that it "took a more serious view” of the case than the hearing committee, the Regents Review Committee found that in addition to the two instances of negligence cited by the hearing committee, petitioner also had been negligent in describing decedent B’s bullet wound inadequately and incompletely. The Regents Review Committee concluded that these three deficiencies constituted negligence or incompetence on more than one occasion and recommended that petitioner be censured and reprimanded. Respondent Commissioner of Education accepted this recommendation and directed that a copy of the order of censure and reprimand, along with a copy of the report and vote of the Regents Review Committee, be added to petitioner’s permanent file.

Petitioner instituted this article 78 proceeding in the Appellate Division (see,. Education Law § 6510-a [4]), seeking to annul the Commissioner’s determination. The Appellate Division confirmed the determination and dismissed the petition, concluding that it was not unreasonable for the respondents to consider the multiple acts of negligence during one autopsy separate derelictions for purposes of appraising petitioner’s professional conduct (144 AD2d 774, 776). Leave to appeal was granted by this court.

For the reasons that follow, we now reverse the judgment of the Appellate Division and annul the determination of the Commissioner of Education.

I.

Education Law § 6509 (2) defines as professional misconduct: "Practicing the profession fraudulently, beyond its authorized scope, with gross incompetence, with gross negligence on a particular occasion or negligence or incompetence on more than one occasion”. The dispute between the parties centers on the interpretation of the phrase "on more than one occasion” — whether three acts of negligence during one autopsy constitute negligence "on more than one occasion”.

Initially, we reject respondents’ contention that because the Board of Regents is the agency charged with the enforcement of Education Law § 6509 (2), its construction of the statute should be afforded great weight and accepted unless irrational. When "the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459). This is so because " 'statutory construction is the function of the courts’ ” (Matter of Howard v Wyman, 28 NY2d 434, 438, quoting Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104, 108).

Respondents urge that the use of the word "occasion” in the phrase "negligence * * * on more than one occasion” renders the phrase ambiguous; thus a reasonable interpretation of the phrase would be "more than one occurrence, happening or incident of negligence.” .Particularly is this true, respondents argue, in light of the statute’s purpose of disciplining errant professionals in order to discourage negligence.

When a statute is free from ambiguity, a court must construe it so as to give effect to its plain meaning (Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 674-675; McKinney’s Cons Laws of NY, Book 1, Statutes §§ 76, 94). "[T]he plain and obvious meaning of a statute is always preferred to any curious, narrow or hidden sense that nothing but a strained interpretation of legislative intent would discern. * * * [C]ourts may only look behind the words of a statute when the law itself is doubtful or ambiguous” (Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471, 479-480).

We perceive no ambiguity in the subject phrase resulting from the use of the word "occasion”. The word "occasion” ordinarily refers to an event of some duration, occurring at a particular time and place, and not simply to a discrete act of negligence which can occur in an instant.

Moreover, section 6509 (2) distinguishes between professional misconduct resulting from practicing with gross negligence on a "particular occasion” and practicing with ordinary negligence "on more than one occasion”. The inference is compelling that by its use of the phrase "particular occasion” in describing gross negligence, the Legislature was referring to an event of some duration occurring at a particular time or place, during which either a single act of negligence of egregious proportions or multiple acts of negligence that cumulatively amount to egregious conduct could constitute gross negligence. Use of the phrase "on more than one occasion” suggests, with equal force, that the Legislature was referring to distinct events of some duration during which an act or acts amounting to ordinary negligence occur.

Respondents’ contention that such an interpretation will give physicians license to commit unlimited acts of negligence during a medical procedure, such as the autopsies in this case, because those acts would go unredressed, does not withstand analysis. As indicated, multiple acts of negligence during one event can amount to gross negligence on a particular occasion, warranting disciplinary action against the offending physician.

Further support for our analysis and conclusion is found in the legislative history of section 6509 (2). As initially enacted, this provision did not define professional misconduct as including ordinary negligence; only negligence that amounted to "gross negligence” could be the basis for a disciplinary proceeding (L 1971, ch 987, § 2). The statute was amended in 1973, to expand the definition of professional misconduct to include gross negligence "on a particular occasion or negligence on repeated occasions” (L 1973, ch 1026, § 1). The Sponsor’s Memorandum notes that the amendment was intended to address the problem of a physician "treating patients consistently below medical standards which, although [sic] may not be gross incompetence or gross negligence as presently set forth in the statute is a cause of great concern for the medical profession and the public in general” (Sponsor’s Mem, 1973, NY Legis Ann, at 184 [emphasis added]). The Memorandum continued: "The commissioner should have the authority to hold hearings when there is evidence on repeated occasions of such practices” (id. [emphasis added]).

The statute was amended, in 1975, to replace the phrase "on repeated occasions” with the phrase "on more than one occasion” (L 1975, ch 109, §30), thus eliminating the possible interpretation that more than two occasions must occur to support disciplinary proceedings. It is significant that the Legislature did not change the requirement to several acts of negligence on one occasion, as occurred here.

Because we reverse the judgment of the Appellate Division and annul the determination of the Commissioner of Education, we need not address the other arguments advanced by petitioner on this appeal.

Accordingly, the Appellate Division judgment should be reversed, with costs, and the determination of the Commissioner of Education annulled.

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

Judgment reversed, etc.

      . Section 6509 (2) provides that the following constitutes professional misconduct: "Practicing the profession fraudulently, beyond its authorized scope, with gross incompetence, with gross negligence on a particular occasion or negligence or incompetence on more than one occasion”.

      . The decedents were referred to by letters to preserve confidentiality.


author: Titone, J.

text:
    The People of the State of New York, Respondent, v David Schonfeld, Defendant. (Peerless Insurance Company, Appellant.)
    Argued September 12, 1989;
    decided October 19, 1989

      POINTS OF COUNSEL

      James P. Milstein for appellant.
    The failure of the District Attorney to timely file a certified copy of the order forfeiting bail and the judgment against the surety precludes the county from enforcing the judgment against the surety. (Matter of Town of New Castle v Kaufmann, 72 NY2d 684; Sega v State of New York 60 NY2d 183; Allen v Minskoff, 38 NY2d 506; People v Graham, 55 NY2d 144; Matter of Ayers v Coughlin, 72 NY2d 346; People v Public Serv. Mut. Ins. Co., 37 NY2d 606; People v Brown, 96 Misc 2d 127; People v Bliss, 66 Misc 2d 398; People v Continental Cas. Co., 200 Misc 546, 279 App Div 654; People v O’Doherty, 70 NY2d 479.)

      Sol Greenberg, District Attorney (John E. Money of counsel), for respondent.
    The District Attorney’s failure to file the judgment and certified copy of the forfeiture order within 60 days after forfeiture does not preclude the county from enforcing the judgment against the surety. (People v Bennett, 136 NY 482; People ex rel. Lawton v Snell, 216 NY 527; Munro v State of New York, 223 NY 208; Zappone v Home Ins. Co., 55 NY2d 131; People ex rel. Weisenfeld [Cifone] v Warden, 37 NY2d 760; People v Public Serv. Mut. Ins. Co., 37 NY2d 606.)
   OPINION OF THE COURT

Titone, J.

In this appeal involving a bail forfeiture, the issue is whether a District Attorney’s failure to proceed against the surety within the 60-day period specified in CPL 540.10 (2) precludes recovery on the bail bond. Although the People argue that this limitations period is merely directory, both the plain language of the statute and its legislative history persuade us that its provisions are mandatory. Accordingly, we hold that where the People have not taken timely steps to perfect their rights under a bail forfeiture order, their ability to enforce that order may itself be forfeited.

Defendant David Schonfeld, who was being held pending disposition of outstanding criminal charges, was released under a $25,000 bail bond issued by a surety, Peerless Insurance Company. When Schonfeld failed to appear in Albany County Court on October 18, 1985 as directed, the court noted his absence on the record, issued a bench warrant and ordered forfeiture of his bail. On October 22, 1985, the court signed a formal order revoking and forfeiting defendant’s bail and directing entry of a $25,000 judgment against Peerless in favor of the county. However, the People did not pursue the matter until April 2, 1986, at which time they filed the forfeiture order and the County Clerk entered judgment in accordance with its terms. According to an affirmation subsequently submitted by the People, the delay was the result of the District Attorney’s plan to "accommodate” Peerless by "holding up execution until [the parties had] an opportunity * * * to try to talk the [c]ourt out of the forfeiture.”

After the judgment was entered, Peerless moved under CPLR 5015 and 5240 for an order precluding its enforcement on the ground that the People had not acted within the 60-day time period prescribed by CPL 540.10 (2). County Court denied the motion, and the Appellate Division affirmed. Relying upon the analysis in People v Bennett (136 NY 482), as well as on the broad statutory goal of punishing the criminal defendant and his surety for the former’s failure to appear, the Appellate Division held that CPL 540.10 (2)’s 60-day provision should not be construed as a limitation upon the People’s right to recover from the surety. We granted Peerless permission to appeal. We now reverse.

As a threshold matter, we note that this appeal presents no jurisdictional difficulty for this court. Although the caption from the criminal action has been retained for purposes of this appeal, the underlying proceeding, which was functionally analogous to a proceeding on an application for remission of bail forfeiture (see, CPL 540.30), is civil in nature and, accordingly, the appeal is governed by the statutory and constitutional provisions for civil appeals (see, People v Public Serv. Mut. Ins. Co., 37 NY2d 606, 610-611; Cohen and Karger, Powers of the New York Court of Appeals § 189 [d], at 711 [rev ed]). Further, the Appellate Division order from which Peerless appeals is final within the meaning of article VI, § 3 (b) of the State Constitution, since it affirms a trial court order which finally disposed of all of the issues in the special proceeding commenced by Peerless to challenge a judgment entered against it ex parte (see, Cohen and Karger, op. cit, § 36 [c], at 147).

Turning to the merits, we conclude that the courts below erred in their construction of CPL 540.10 (2). That subdivision provides that where bail posted in the form of a bail bond has been ordered forfeited, "the district attorney, within sixty days after the adjournment of the court at which such bond was directed to be forfeited, must proceed against the obligor or obligors who executed such bond, in the manner prescribed in subdivision three” (emphasis supplied). The first step in the prescribed procedure is the filing by the District Attorney of the forfeiture order (CPL 540.10 [3]).

Although the People in this case concededly did not take this step within the 60-day period specified in the statute, they assert that they should nevertheless be permitted to enforce the rights that they claim "vested” upon the issuance of the forfeiture order. According to the People, the late filing of the order and entry of judgment "merely suspends the ability of the county to enforce the judgment” until those steps are accomplished. We disagree.

The People’s proposed construction of the statute would render its 60-day requirement without legal or practical effect. Such a result cannot be reconciled with the statute’s clear mandatory language (see, People v Alejandro, 70 NY2d 133, 139 ["mandatory provisions of a statute are generally treated as essential”]). While the Legislature’s use of the term "must” is not conclusive, such a word of command is ordinarily construed as peremptory in the absence of circumstances suggesting a contrary legislative intent (see, Spears v Mayor of City of N. Y., 72 NY 442; McKinney’s Cons Laws of NY, Book 1, Statutes § 177 [a], at 343). Here, all of the surrounding circumstances are in harmony, and they all support a mandatory construction of the statute.

First, CPL 540.10 (2) provides that the People "must” proceed against the surety within 60 days in cases involving bail bonds, but that in cases involving cash bail they "may” simply appropriate the deposited sum "at any time” after the occurrence of the later of two specified events. Such a juxtaposition of seemingly mandatory and permissive terms within the same subdivision governing enforcement strongly suggests that the Legislature did not intend to give the People the open-ended discretion to proceed against sureties that they now seek.

Second, the legislative history of the 60-day provision supports the view that the People were not to retain unfettered discretion in determining when to proceed on a bail bond. Before 1926, the statute governing the procedure upon a bail forfeiture provided that the People "may, at any time * * * proceed” against the surety (former Code Crim Pro § 595). In that year, however, the statute was amended to provide that the People "within sixty days * * * shall proceed” against the surety (L 1926, ch 478, § 1). The purpose of the amendment was "to tighten up the law and remedy some of the [existing] bail abuses” and, more specifically, to "provide that the District Attorney shall bring proceedings against the surety * * * within 60 days * * * instead of leaving it discretionary to bring such action at any time” (Letter from Secretary of Committee on Criminal Courts of Charity Organization Society of City of New York to Governor, Bill Jacket, L 1926, ch 478 [emphasis supplied]). When the former Code of Criminal Procedure was recodified as the Criminal Procedure Law in 1971, the 60-day provision was retained and the word "must” was substituted for "shall,” thereby reinforcing the Legislature’s mandatory intention.

In light of this specific legislative background, the Appellate Division should not have relied on the general punitive purpose of the bail forfeiture provisions. Although it is true, as the Appellate Division observed, that CPL 540.10, taken as a whole, is designed to punish the defendant and the surety for the defendant’s failure to appear in court as required, it is also true that "the Legislature has * * * the right * * * to select the methods to be used in effectuating its goals, as well as to choose the goals themselves” (Sheehy v Big Flats Community Day, 73 NY2d 629, 634). In this instance, the Legislature has opted to effectuate its over-all punitive goal, in part, by eliminating any discretion that the District Attorney’s office might otherwise have and directing it to take the required steps to enforce the court’s forfeiture order within a prescribed time frame. Evidently, the Legislature determined that the strength of sureties’ inducement to ensure defendants’ timely appearances would be weakened if they knew that the District Attorney was free to engage in extended negotiations over enforcement of the bond promise (cf., People v Public Serv. Mut. Ins. Co., supra, at 611 [strength of inducement to return absconding defendant within "a reasonable period” would be weakened if remission is "easily granted as a matter of course”]). This legislative choice can best be effected if CPL 540.10 (2) is construed to preclude the People’s recovery on a bail bond where they fail to proceed against the surety in a timely manner.

Finally, contrary to the People’s argument, nothing in the analysis in People v Bennett (supra) is inconsistent with our present construction of the statute. The People place great reliance on the statement in Bennett that once the defendant’s nonappearance is noted on the record, "[n]o further or formal order is necessary to fix the liability of the surety” (136 NY, at 487). However, as the court went on to note: "It is important to observe the distinction between the time when the forfeiture is incurred and the time when the judgment may be entered. The one relates to the maturity of the debt, the other to the application of the remedy for its enforcement” (id.; cf., Sharrow v Inland Lines, 214 NY 101 [distinguishing between time limitations affecting the right to recover and those merely restricting the remedy]).

In Bennett, where the defendant’s failure to appear at the required time was noted on the record but the court’s bail forfeiture order was not actually entered until after the defendant had been returned and produced in court, the issue was the time when the surety’s debt matured and became fixed. It was in that context that the court held that the date of the criminal defendant’s recorded nonappearance, rather than the date the formal forfeiture order is entered, is controlling. Here, in contrast, the dispute concerns the entirely separate problem of the People’s attempt to recover on the surety’s bond, i.e., "the application of the remedy for [the debt’s] enforcement.” In that connection, the dictum of the Bennett court is instructive. Foreshadowing the analysis in this case, the Bennett court observed: "It may be that * * * the entry of an order declaring the forfeiture is a prerequisite to the right of the People to summarily enter judgment” (136 NY, at 487).

Applying the modern version of the 60-day provision that was added almost 30 years after Bennett was decided (CPL 540.10 [2]; see, L 1926, ch 478, § 1), we now conclude that, under the present statutory scheme, the timely entry of the court’s forfeiture order is a necessary prerequisite to the People’s ability to recover from the surety. While, as in Bennett, the substantive obligation of the surety is theoretically left intact, the passage of the time period specified in CPL 540.10 (2) operates permanently to suspend the remedy for the debt’s enforcement so that, as a practical matter, the result is the same: the People are precluded from recovering. In that respect, the 60-day provision is analogous to a conventional Statute of Limitations, which suspends the remedy without abolishing the substantive right (see generally, Hulbert v Clark, 128 NY 295; Siegel, NY Prac § 34).

Here, it is undisputed that the People did not satisfy the CPL 540.10 (2) limitations period by filing the court’s bail forfeiture order in a timely manner. Further, their stated reason for delaying — their intention to "accommodate” Peerless by giving it an opportunity to "try to talk the [c]ourt out of the forfeiture” — is precisely the type of conduct that the 60-day requirement was adopted to prevent. While this circumstance is not a controlling factor since the statute penalizes the People’s delay without regard to their motives, it nonetheless is instructive in that it highlights the need for a mandatory rule such as the one embodied in CPL 540.10 (2).

Because of their conceded delay in filing the bail forfeiture order, the People were not entitled to pursue their remedy against the surety. Accordingly, the order of the Appellate Division should be reversed, with costs, and the motion by Peerless granted.

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

Order affirmed, etc.

      . Schonfeld, who was rearrested shortly thereafter, appeared in court on October 29,1985.

      . Defendant Schonfeld’s separate motion for leave to appeal was dismissed on the ground that Schonfeld, who had not joined in Peerless’s application in the trial court, was not a party to the CPLR 5015/5240 proceeding (73 NY2d 987).