author: Smith, J. Bellacosa, J.

text:
    [650 NE2d 373, 626 NYS2d 715]
    In the Matter of Schenectady Police Benevolent Association, Respondent-Appellant, v New York State Public Employment Relations Board, Respondent, and City of Schenectady, Appellant-Respondent. (Proceeding No. 1.) In the Matter of City of Schenectady, Appellant-Respondent, v New York State Public Employment Relations Board, Respondent, and Schenectady Police Benevolent Association, Respondent-Appellant. (Proceeding No. 2.)
    Argued February 7, 1995;
    decided March 28, 1995

      POINTS OF COUNSEL

      Roemer and Featherstonhaugh, P. C., Albany (James W. Roemer, Jr., and Elayne G. Gold of counsel), for appellant-respondent in the two above-entitled proceedings.

      Grosso & Grosso, Schenectady (Jane K. Finin of counsel), for respondent-appellant in the two above-entitled proceedings.

      David P. Quinn, Albany, and Gary Johnson for respondent in the two above-entitled proceedings.
   OPINION OF THE COURT

Smith, J.

The issue here is whether General Municipal Law § 207-c requires mandatory bargaining before a police officer who is injured in the line of duty or becomes ill during the performance of duty can be forced to (1) perform light duty, (2) undergo surgery at the direction of the City or (3) waive the confidentiality of medical records. Because the Appellate Division properly concluded that none of these matters is subject to mandatory bargaining, we affirm.

General Municipal Law § 207-c was enacted in 1961 and provided that a police officer "who is injured in the performanee of his duties or who is taken sick as a result of the performance of his duties” could receive salary or wages, as well as medical benefits from the municipality. During February and March 1990, the City of Schenectady sought to adopt six new rules governing the receipt of benefits under General Municipal Law § 207-c. The three rules pertinent to this appeal require that a police officer (1) assume a light duty position, as ordered by the City, (2) submit to surgery as ordered by the City and (3) execute a medical confidentiality waiver form for the City’s examining physician when the officer appears for examination of a General Municipal Law § 207-c injury or illness.

In April 1990, the Schenectady Police Benevolent Association (PBA) filed an improper practice charge with the Public Employment Relations Board (PERB), alleging that the City of Schenectady violated Civil Service Law § 209-a (1) (a), (c) and (d) by unilaterally and improperly instituting new rules and procedures relating to qualification for benefits under General Municipal Law § 207-c. Underlying this charge was the City’s requirement that several police officers recovering from injuries suffered on the job return to work to perform light duty in the Schenectady Police Department. Additionally, the City required one officer to submit to surgery.

After a hearing, the Administrative Law Judge (ALJ) rejected any contention that Civil Service Law § 209-a (1) (a) and (c) had been violated since "no evidence of improper motivation was presented by the PBA.” The ALJ found that the order to perform light duty or to undergo surgery was not a mandatory subject of bargaining. The ALJ also found that the City had no right to require a medical confidentiality waiver since this matter was subject to mandatory bargaining. She thus found a violation of Civil Service Law § 209-a (1) (d). Both the PBA and the City filed exceptions to the ALJ’s findings and PERB affirmed the ALJ’s decision.

The PBA commenced the first CPLR article 78 proceeding seeking to annul PERB’s determination with regard to the performance of light duty and submission to surgery. The City instituted a CPLR article 78 proceeding to annul PERB’s affirmation of the ALJ’s decision, in part, because it required mandatory bargaining for a medical confidentiality waiver. The two proceedings were consolidated.

Supreme Court confirmed PERB’s determination, except with respect to the medical confidentiality waiver which it found not to be subject to mandatory bargaining. The Appellate Division modified Supreme Court’s judgment by concluding that the medical confidentiality waiver is subject to mandatory collective bargaining only insofar as it relates to the release of information other than that relating to whether the officer remains disabled or is capable of light duty. This Court granted both the City’s motion and the PBA’s cross motion for leave to appeal.

The PBA contends that there is no legislative intent or scheme discernible in General Municipal Law § 207-c to remove light duty and compulsory elective surgery from mandatory collective negotiations. The City argues that the Appellate Division’s modification of Supreme Court’s ruling with respect to medical confidentiality waivers adversely impacts upon the rights of a municipality as articulated in General Municipal Law § 207-c. PERB maintains that General Municipal Law § 207-c indicates a legislative intent that light duty and surgery not be the subject of mandatory collective bargaining. PERB also contends that no statutory or other authority eliminates the requirement of mandatory collective bargaining with respect to a waiver of medical confidentiality.

First, concerning the standard of review, we recognize that an administrative agency’s determination requires deference in the area of its expertise (see, Rosen v Public Empl. Relations Bd., 72 NY2d 42, 47-48). Where, however, the matters at issue involve statutory interpretation, such deference is inapplicable (id.; Matter of Webster Cent. School Dist. v Public Empl. Relations Bd., 75 NY2d 619, 626). This case involves only statutory interpretation.

It is settled that the Taylor Law (Civil Service Law § 200 et seq.) generally requires bargaining between public employers and employees regarding terms and conditions of employment (see, Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., 75 NY2d 660, 667, quoting Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778). The policy of such bargaining in this State is "strong” and "sweeping” (id.). Even that policy, however, is negated under special circumstances. It is unquestioned that the bargaining mandate may be circumscribed by "plain” and "clear” legislative intent or by statutory provisions indicating the Legislature’s "inescapably implicit” design to do so (Matter of Webster Cent. School Dist. v Public Empl. Relations Bd., 75 NY2d 619, 627, supra; see also, Matter of Board of Educ., 75 NY2d 660, 667, 668, supra).

Turning to the specific issues before us, we hold that General Municipal Law § 207-c authorizes the City to require both light duty and, under the appropriate circumstances, even surgery, where reasonable. As for light duty, General Municipal Law § 207-c (3) provides that where, in the opinion of a physician or health authority, a police officer is "unable to perform his regular duties as a result of * * * injury or sickness but is able, in their opinion, to perform specified types of light police duty,” the officer is entitled to receive salary and other benefits only if that light duty is performed. That the City ordered the officers to submit to light duty is consistent with the authority given in this provision.

The PBA claims that General Municipal Law § 207-c does not authorize surgery absent bargaining. However, General Municipal Law § 207-c (1) clearly provides otherwise. After stating that an officer who is injured in the performance of his duties or becomes ill in the performance of his duties is entitled to salary, wages and medical benefits, the statute provides that these benefits may be withheld if the officer refuses to undergo surgery. Regarding this claim, the statute provides, in part,

"Provided, however, and notwithstanding the foregoing provisions of this section, the municipal health authorities or any physician appointed for the purpose by the municipality, after a determination has first been made that such injury or sickness was incurred during, or resulted from, such performance of duty, may attend any such injured or sick policeman, from time to time, for the purpose of providing medical, surgical or other treatment” (emphasis supplied).

The section goes on to provide that anyone who refuses to accept "medical treatment or hospital care” waives the right to benefits under the section. Unquestionably the Legislature contemplated that municipalities would, where appropriate and reasonable, require police officers to submit to corrective surgery, or forfeit benefits under the statute. In this regard, the police officers here do not differ from firefighters (see, Matter of Mondello v Beekman, 56 NY2d 513, affg on opn below at 78 AD2d 824). In Mondello v Beekman, the petitioner’s application for line-of-duty disability retirement was dismissed because the petitioner had failed to accept proper medical treatment. In affirming on the opinion of the Appellate Division, this Court tacitly acknowledged that the Medical Board could require corrective medical treatment, including surgery. Additionally, any officer would have general recourse to article 78 proceedings to challenge an allegedly arbitrary or unreasonable intrusion.

Although the waiver issue is not as clear, we determine that the Appellate Division reached the correct result by narrowing the City’s waiver requirement to only those items necessary for the City’s determination of the nature of the officer’s medical problem and its relationship to his or her duties. The waiver sought by the City in this action is far too broad, requiring all medical records of the officer. Nothing in General Municipal Law § 207-c authorizes the City to require disclosure of such broad-based information. Any requirement of waiver, apart from that required with respect to the applicable injury or sickness, should be the subject of collective bargaining. In a similar vein, Matter of Board of Educ. v New York State Pub. Empl. Relations Bd. (75 NY2d 660, supra) held that the New York City Board of Education’s financial disclosure requirements, which were similarly intrusive regarding employees’ personal financial matters, were subject to bargaining.

Finally, it should be clear that the procedures for implementation of the requirements of General Municipal Law § 207-c are not before us. Those procedures may or may not be subject to bargaining. For example, no reason has been shown here why officers should not be permitted the opportunity to obtain and have considered the views of their personal physicians as to surgery.

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

Bellacosa, J.

(dissenting in part). We agree with the Court

to affirm the Appellate Division order insofar as it resolves the issues of the waiver of confidentiality of medical records and the performance of light duty. With respect to this Court’s affirmance of the portion of the Appellate Division order that upholds the authority of the municipal employer to impose surgical and medical treatments on police officers injured in the line of duty, we respectfully dissent and vote to modify.

General Municipal Law § 207-c should not be construed to effect forfeiture of police officer employee benefits for refusal to submit to surgical and medical treatments unilaterally mandated by physicians employed by the municipality, without at least the counterbalance of collective bargaining protections.

The Court has long recognized the "strong and sweeping policy of the State” to support employer-employee negotiations under the Civil Service Law (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778). Absent a clear and explicit withdrawal of this employer-employee matter from collective bargaining, sound statutory interpretation, legislative intent and public policy concerns militate against the imposition of such a profound, governmental, management, encroachment of employee, personal autonomy. The Public Employment Relations Board (PERB) ruled that the forfeiture of employee benefits for the refusal to submit to mandated surgical and medical directives is a matter outside the scope of collective bargaining. We agree with the Court that PERB’s determination is not entitled to special deference (see, Matter of Newark Val. Cent. School Dist. v Public Empl. Relations Bd., 83 NY2d 315, 320; Matter of Webster Cent. School Dist. v Public Empl. Relations Bd., 75 NY2d 619, 626). On the pure statutory construction ground, however, we conclude that the PERB determination in this respect should be annulled.

In pertinent part, General Municipal Law § 207-c provides:

"Any sheriff, undersheriff, deputy sheriff or corrections officer of the sheriff’s department of any county or any member of a police force of any county * * * who is injured in the performance of his duties or who is taken sick as a result of the performance of his duties so as to necessitate medical or other lawful remedial treatment shall be paid by the municipality by which he is employed the full amount of his regular salary. * * * Provided, however * * * the municipal health authorities or any physician appointed for the purpose by the municipality * * * may attend any such injured or sick policeman, from time to time, for the purpose of providing medical, surgical or other treatment, or for making inspections. * * * Any injured or sick policeman who shall refuse to accept medical treatment or hospital care or shall refuse to permit medical inspections as herein authorized * * * shall be deemed to have waived his rights under this section in respect to expenses for medical treatment or hospital care rendered and for salary or wages payable after such refusal” (emphasis added).

The fact that General Municipal Law § 207-c declares that an officer’s refusal to accept medical treatment shall be deemed a waiver of rights to benefits and salary does not solve or answer the essential and threshold issue in this case. This waiver provision introduces no final entity, procedural protections or process or mechanism for determining the necessity or propriety of municipal employer-mandated medical directives. The statute prescribes no regimen for rendering such determinations.

It is no answer, therefore, and plainly insufficient protection for employees, when the Court suggests that attendant procedures affecting the core power may be subject to collective bargaining or, ultimately, to judicial CPLR article 78 review or even to a generalized reasonableness standard. The merits or the review of the assigned treatment are not germane to the resolution of the issue of the power to compel in the first instance under statutory interpretation. Moreover, since no explicit or inescapably implied legislative expression takes the core power or the attendant procedural protections out of the traditional and ordinary collective bargaining sphere, the whole, intertwined power should be subject to that essential employer-employee protection and policy preference (see, Matter of Webster Cent. School Dist. v Public Empl. Relations Bd., 75 NY2d 619, 626-628, supra).

Our analysis flows from the obligation of courts to look to the statutory language and give it "its most obvious and natural meaning” (Ball v Allstate Ins. Co., 81 NY2d 22, 25; Matter of Greenberg [Ryder Truck Rental], 70 NY2d 573, 577; McKinney’s Cons Laws of NY, Book 1, Statutes § 94, at 188). Complementing that principle is the axiom that " '[wjhere the statute is clear and unambiguous on its face, the legislation must be interpreted as it exists * * * [and] the courts may not resort to rules of construction to broaden the scope and application of a statute’ ” (Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 674, quoting Bender v Jamaica Hosp., 40 NY2d 560, 561-562).

Transcending these general nostrums in this case is the explicitly apt State policy favoring the collective bargaining of terms and conditions of employment (see, Matter of Webster Cent. School Dist. v Public Empl. Relations Bd., 75 NY2d 619, supra). In Webster (at 627), the Court held unanimously that "any implied intention that there not be mandatory negotiation must be 'plain and clear’ (Syracuse Teachers Assn. v Board of Educ., 35 NY2d 743, 744), or 'inescapably implicit’ in the statute (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778 [other citation omitted]).”

The instant case fails these general and specific statutory interpretation tests with respect to the subject of unilateral power of a municipal employer to impose surgical and medical protocols under penalty of forfeiture of statutory employee benefits. The plain language of the statute evinces no express or implied legislative intent that a municipal employer, through its physicians, is unilaterally empowered to command its employees to submit themselves to invasive physical and medical procedures and treatments (compare, Rivers v Katz, 67 NY2d 485, 492; see also, Schloendorff v Society of N. Y. Hosp., 211 NY 125, 129). Indeed, the active phrase of art is "attend * * * for the purpose of providing,” a phrase very different from the more easily articulated "may direct” — if that is what the Legislature intended.

General Municipal Law § 207-c is a remedial statute enacted for the benefit of police officers injured in line of duty. As such, it must be liberally construed in their favor (see, Matter of Mashnouk v Miles, 55 NY2d 80, 88). As noted, the Legislature invested the physicians of municipal employers with the limited authority to "attend” the injured police officer "for the purpose of providing medical, surgical or other treatment.” Augmentation of this limited role and authorization, however, with the extraordinary unilateral power to order surgical and medical protocols, is not expressly, reasonably, or inescapably implied in the statute. For courts to infer such a profound transformation and vast intrusive power from legislative silence would be unusual in any case, but in matters such as are in dispute here — mandatory medical protocols under penalty of forfeiture of employee salary and medical benefits— would be astounding, especially in the face of the more restrictive legislative language actually used. The Court’s gloss thus lacks statutory roots or interpretative sustenance and transgresses the limitation on legislating under the guise of statutory construction (see, People v Heine, 9 NY2d 925, 929). At the very least, New York’s well-established preference for allowing such subjects to be resolved by collective bargaining ought to play a part (see, Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778, supra).

Our analysis and application of these principles is cogently reinforced by legislative history. Relevant memoranda submitted by the Department of Law to the Governor indicate that the primary purpose of this law is to provide "for payment of salary, medical and hospital expenses” for injured or sick police officers (Mem of Dept of Law, Bill Jacket, L 1961, ch 920; see, Governor’s Approval Mem, 1961 NY Legis Ann, at 486-487). The Bill Jacket contains no reference to granting municipal physicians unilateral authority to order medical protocols without at least collective bargaining protections. Because the determination that a police officer must submit to employer-directed medical procedures violates personal autonomy, ordinary collective bargaining protections seem sensible and necessary, absent an explicit legislative withdrawal of that employee safeguard, which could have been so plainly set forth if intended (see, Rivers v Katz, 67 NY2d 485, 492, supra; Schloendorff v Society of N Y. Hosp., 211 NY 125, 129, supra; see also, Winston v Lee, 470 US 753, 759; Mills v Rogers, 457 US 291, 299).

The Legislature might arguably have explicitly prohibited collective bargaining with respect to this significant subject matter for some compelling, demonstrable State purpose. It did not do so. That ought to be the end of this case on that issue.

In this setting, on this record and on this statute’s reading, this essential safeguard should be accorded priority, at least for collective bargaining protections purposes, over a statutory interpretation which, only by substantial judicial gloss, would justify unilateral and mandatory medical directives from municipal employers against the interests of particular public safety employees. Frankly, we find it hard to conjure up any term of employment that would impinge more significantly upon an individual employee’s personal prerogatives than does the subject that divides our ruling on this part of this case.

Thus, we would modify the order of the Appellate Division and annul that part of the PERB determination that removes employer-mandated surgery from collective bargaining give and take.

Chief Judge Kaye and Judges Simons, Titone and Levine concur with Judge Smith; Judge Bellacosa dissents in part in a separate opinion in which Judge Ciparick concurs.

Order affirmed, without costs.

      . Civil Service Law § 209-a (1) (a) and (c) read as follows: "It shall be an improper practice for a public employer or its agents deliberately (a) to interfere with, restrain or coerce public employees in the exercise of their rights guaranteed in section two hundred two [right of organization] for the purpose of depriving them of such rights * * * (c) to discriminate against any employee for the purpose of encouraging or discouraging membership in, or participation in the activities of, any employee organization.”

      . Civil Service Law § 209-a (1) (d) makes it an improper employer practice "to refuse to negotiate in good faith with the duly recognized or certified representatives of its public employees.”


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [650 NE2d 379, 626 NYS2d 721]
    The People of the State of New York, Respondent, v Gwendolyn Chase, Appellant.
    Argued February 14, 1995;
    decided April 4, 1995

      POINTS OF COUNSEL

      Kerry Elgarten, New York City, and Philip L. Weinstein for appellant.

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Steven J. Chananie of counsel), for respondent.
   OPINION OF THE COURT

Smith, J.

Defendant was convicted of criminally negligent homicide and criminal possession of a weapon in the fourth degree arising out of the stabbing death of a relative during a struggle. The primary issues here are:

(1) whether the People should have been precluded from offering defendant’s first, spontaneous statement into evidence because of the lack of notice pursuant to CPL 710.30 (1) (a) and
(2) whether all four of defendant’s statements made to law enforcement authorities should have been suppressed as fruits of an illegal detention.

On December 1, 1990 at 7:20 p.m., Detective Sheldon Wasserman was assigned to investigate the fatal stabbing of Darryl Dawkins. After finding no one present at the crime scene, near the corner of 105th Street and Northern Boulevard in Queens County, New York City, Wasserman went to the hospital at which Dawkins had been treated. At the hospital, members of Dawkins’ family told Wasserman that defendant, Dawkins’ cousin, had inflicted the fatal wound. Neither the identity of the persons nor their actual witness to the stabbing was shown. Wasserman returned to the crime scene and informed Detective O’Brien, present at the scene, of his findings.

The results of O’Brien’s investigation at the scene coincided with Wasserman’s findings. Anonymous informants, none of whom were identified as eyewitnesses, had told O’Brien that "Gwenny” stabbed Darryl Dawkins. Shortly after O’Brien’s discussion with Wasserman, defendant arrived at the scene. From a crowd, several unknown individuals identified defendant, and O’Brien and other officers approached the car. Defendant, by her own acknowledgment, verified that she is also known as "Gwenny.” Defendant then exited the vehicle and was placed in the back seat of a police automobile.

While the investigation proceeded, O’Brien remained inside the car to watch defendant. After approximately 20 seconds, defendant stated for the first time and without prompting that she stabbed Dawkins.

Wasserman and his partner Herrera brought defendant to the 115th Precinct in Queens County at approximately 10:45 p.m. Wasserman began interviewing defendant at 11:00 p.m. He took defendant’s pedigree information and then administered Miranda warnings. Wasserman then transcribed defendant’s statement in approximately two written pages. This constituted defendant’s second confession. He then placed defendant in a holding cell where she remained until approximately 2:00 a.m. when she received medical treatment for a cut on her hand. She was removed from her cell again by Detective Sanchez for a "reinterview” around 2:50 a.m. She was apprised of her rights and indicated that she understood them. Defendant then made another statement, her third, consisting of four pages and returned to her cell. Around 4:00 a.m. defendant made a fourth, videotaped, statement to an Assistant District Attorney.

By notice dated December 13, 1990 and pursuant to CPL 710.30 (1) (a), the People informed defendant that they intended to offer at trial statements made by defendant. The notice indicated that the substance of the statements was, "Dawkins was hitting her, so she took a knife from a garbage can, [and] stabbed him.” The voluntary disclosure form which was included with the CPL 710.30 (1) (a) notice indicated that three statements had been made, to Detective Wasserman, Detective Sanchez and Assistant District Attorney Creque. No reference was made in said notice to the first statement in the car.

Defendant made an omnibus motion in which she sought to suppress, on two grounds, the statements referred to in the People’s notice. The first was that the arrest was without probable cause and the statements taken should be suppressed "as the fruit of a violation of defendant’s rights against unreasonable seizures under the United States and New York Constitutions. Dunaway v New York, 442 US 200 (1979).” The second ground was that the statements were involuntarily made in that "[t]he statements were not the product of a knowing, voluntary and intelligent waiver by defendant of her rights to remain silent and to the assistance of counsel.” Without conceding any impropriety, the People consented to a Huntley hearing.

Following the Huntley hearing, the trial court denied defendant’s motion to suppress the statements. The court found probable cause to arrest defendant at the time she was taken into custody. The court also found that Miranda warnings had been given before defendant made statements to Detectives Wasserman and Sanchez and to Assistant District Attorney Creque. While the court found that notice of the first statement to Police Officer O’Brien had not been given, it found such notice pursuant to CPL 710.30 (1) (a) unnecessary because the statement was spontaneous. While the court also found that defendant’s request for discovery of all of defendant’s statements (see, CPL 240.20 [1] [a]) had not been complied with in that the first two statements to Detective O’Brien and Detective Wasserman had not been provided to defendant, it found such failure harmless because the third and fourth statements were much more comprehensive than the first two.

At Supreme Court, following a jury trial, defendant was convicted of criminally negligent homicide and criminal possession of a weapon in the fourth degree. The Appellate Division affirmed, agreeing with the trial court that there was probable cause for defendant’s arrest and that no CPL 710.30 (1) (a) notice was required for the first, spontaneous statement. A Judge of this Court granted defendant’s application for permission to appeal.

Defendant claims that her initial statement to the police should have been precluded because the People failed to provide notice of intent to offer it. Defendant also argues that her statements to the police and the Assistant District Attorney should have been suppressed as the fruits of an arrest made without probable cause on the basis of unsubstantiated hearsay or rumor.

The People argue that defendant’s first statement was spontaneous and no notice was required for it. They also argue that the police officers acted reasonably by placing defendant in the police car and that even if defendant’s detention was illegal, any possible taint flowing to defendant’s statements was fully attenuated.

II

Defendant argues that the People should have been precluded from offering her initial statement to the police because the People failed to provide notice of their intent to use the statement pursuant to CPL 710.30 (1) (a). That statute provides that the People must give notice to the defendant whenever they "intend to offer at a trial * * * evidence of a statement made by a defendant to a public servant” which would be suppressible if involuntarily made. An involuntary statement includes one that has been physically or psychologically coerced, obtained by a promise or statement that creates a risk of falsely incriminating oneself or obtained by the failure to give Miranda warnings (CPL 60.45). CPL 710.30 (2) requires that such notice be given "within fifteen days after arraignment and before trial.” Late notice may be given only upon good cause (id.; People v O’Doherty, 70 NY2d 479, 487-489).

It is for the court and not the parties to determine whether a statement is truly voluntary or is one in which the actions of the police are the functional equivalent of interrogation causing the statement to be made (see, People v Ferro, 63 NY2d 316, cert denied 472 US 1007 [placing stolen furs in front of the defendant’s cell was the functional equivalent of interrogation and the defendant’s statement should have been suppressed]). In People v Greer (42 NY2d 170), we noted that the CPL 710.30 (1) (a) notice need not be served on a defendant where "there is no question of voluntariness” (id., at 178). In that case even though this Court found that the statement in question was completely voluntary (when discovered by the police in the midst of sexual intercourse, defendant claimed the act was consensual rather than rape but, in response to the officer’s question, did not know the victim’s name), it precluded the statement for failure of the People to give the required notice. Since the statement here was made to a law enforcement official and the defendant had the right to have a court review the circumstances under which the statement was given and to determine its voluntariness, including whether it was truly spontaneous or the functional equivalent of interrogation (People v Ferro, 63 NY2d 316, supra; People v Bryant, 59 NY2d 786, rearg dismissed 65 NY2d 638), defendant was entitled to notice under CPL 710.30 (1) (a). Both prior courts determined that the first statement was voluntary and there is evidence in the record to support that determination. The first statement, made in the police car, should have been precluded because of the lack of CPL 710.30 (1) (a) notice (People v Greer, 42 NY2d 170, supra).

III

Preclusion of the first statement alone, however, would not entitle defendant to a new trial. Inasmuch as there were several subsequent statements by defendant that were more detailed and comprehensive, the erroneous admission of defendant’s first statement does not alone require reversal.

There was no probable cause to arrest defendant when she was placed in the police car. "Probable cause requires information sufficient to support a reasonable belief that an offense has been or is being committed by the suspect” People v Hicks, 68 NY2d 234, 238; CPL 140.10). Although it is settled that probable cause may be provided through hearsay information, the informants providing the hearsay must be reliable and have a basis for their knowledge of the information (see, People v Parris, 83 NY2d 342, 346-347; People v Johnson, 66 NY2d 398, 402). The statements made by the anonymous individuals at the crime scene and the members of decedent’s family failed to meet the "basis of knowledge” prong of the standard. The statements consisted only of the suspicion or "rumor” we have criticized in other cases People v Parris, 83 NY2d, at 348; People v Johnson, 66 NY2d, 398, 403, supra).

Here, however, the People argue that the police officers had reasonable suspicion to detain defendant and that a defendant may be detained, and even moved, where the facts so warrant (see, People v Hicks, 68 NY2d 234, 242, supra). This issue must be addressed by Supreme Court in the first instance. That court must make a threshhold determination as to whether the police action constituted an arrest or some lesser form of detention. If the court finds that only a temporary detention occurred, it will have to go on to consider whether that detention was reasonable under the circumstances, with a view toward such factors as common sense and ordinary human experience, the likelihood of the action to quickly affirm or dispel suspicions and the rapid pace of a developing situation (id., at 241-242). If the court finds that defendant’s detention was lawful, then the judgment of conviction and sentence should be adhered to and the judgment of conviction and sentence should be amended to reflect this additional determination by Supreme Court made upon our remittal.

If Supreme Court determines, however, that the detention was unlawful, the court must then determine whether defendant’s latter three statements were attentuated from the illegal detention, and from defendant’s initial, "spontaneous” statement (see, People v Rogers, 52 NY2d 527, cert denied 454 US 898). If any of these statements was not sufficiently attentuated from the prior illegality, it must be suppressed, and, if all three of defendant’s station house statements are suppressed, a new trial must be ordered. However, if one or more of the three survives, defendant’s conviction should be reviewed under a harmless error analysis (see, People v Crimmins, 36 NY2d 230). If the court determines that none of the three statements need be suppressed or that some should be, but that harmless error applies, the judgment of conviction and sentence will stand and should be amended to reflect this determination.

IV

We reject defendant’s contention that the trial court improperly admitted evidence of a prior uncharged crime. It is settled that where evidence of a prior uncharged crime contains more probative value than risk of prejudice to the defendant, the evidence is admissible (see, People v Hudy, 73 NY2d 40, 55; People v Satiro, 72 NY2d 821, 822; People v Alvino, 71 NY2d 233, 241, 242). The claim by the decedent’s stepfather, Alexander Swinney, that defendant had stolen $540 from him was central to the facts of this case in order to establish the basis of the decedent’s conflict with defendant.

We have reviewed defendant’s remaining contention and find it to be without merit.

Accordingly, the order of the Appellate Division should be modified by remitting the case to Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.

Order modified by remitting the case to Supreme Court, Queens County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      . Defendant makes no argument here concerning the failure to provide the first two statements as required by CPL 240.20 (1) (a).

      . The People, although maintaining in the trial court and at the Appellate Division that there was probable cause to take defendant into custody, have abandoned that argument here.

      . While the People apparently made no argument in the Appellate Division concerning the issue of reasonable suspicion, they raised the issue in oral argument at the end of the Huntley hearing by stating that "it is entirely reasonable under all of those circumstances for Gwendolyn to be placed in the police car.”


author: Ciparick, J.

text:
    [650 NE2d 384, 626 NYS2d 726]
    The People of the State of New York, Respondent, v Roosevelt Avery, Also Known as Russell Anthony, Appellant.
    Argued February 14, 1995;
    decided April 4, 1995

      POINTS OF COUNSEL

      Carol Novack, New York City, for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Polly Greenberg and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Ciparick, J.

The general issue on this appeal concerns the legality of a plea agreement which offered defendant a favorable sentence conditioned on his first entering and successfully completing a private drug rehabilitation program. More specifically, we must determine whether the deferral of sentencing to allow the court to monitor defendant’s rehabilitative progress is tantamount to illegal "interim probation” pursuant to People v Rodney E. (77 NY2d 672). We conclude that the plea agreement was not an imposition of "interim probation.”

On March 12, 1992 defendant pleaded guilty to felony counts of two separate indictments, charging criminal sale and criminal possession of a controlled substance. Under the terms of the plea agreement, Supreme Court promised to delay imposition of sentence to allow defendant to enter the Fortune Society Drug Rehabilitation Program. Furthermore, if defendant successfully completed the program, the felony pleas would be vacated and he would be permitted to plead guilty to a lesser charge; if he failed, he would receive sentences of imprisonment on each indictment to run concurrently. Defendant did not successfully complete the Fortune Society program and on September 17, 1992 he was sentenced accordingly.

On appeal, defendant challenged the trial court’s authority to unlawfully condition and defer his sentencing. The Appellate Division declined to review the issue of Supreme Court’s failure to afford defendant the opportunity to withdraw his guilty plea, erroneously concluding the issue was unpreserved (People v Rodney E., supra), and affirmed the conviction. The Court noted that defendant was not placed under the Probation Department’s formal supervision and that defendant’s agreement to complete the drug treatment program was more akin to the placement of a condition on a plea, which is lawful, than to the imposition of a period of interim probation. Since defendant failed to complete the program, imposition of the prison terms was proper.

Defendant argues that this case is controlled by People v Rodney E. (supra) and People v Johnson (197 AD2d 638, lv withdrawn 82 NY2d 926) pursuant to which his sentence should be vacated and the matter remitted to Supreme Court so that he may be given the opportunity to withdraw his plea.

In Rodney E., the then-14-year-old defendant pleaded guilty to robbery in the first degree. Before accepting the plea the court informed the defendant that sentencing would be postponed for three months; if during that period he complied with all the conditions imposed by the court he would ultimately be sentenced as a youthful offender to five years’ probation. The Probation Department, directed by the court to supervise the defendant’s activities and report periodically, filed a progress report containing hearsay allegations that defendant had violated the conditions of the interim probation. The court terminated the interim probation and sentenced defendant to a period of incarceration in a State Division for Youth facility.

Upon examining the statutory scheme governing probationary sentences, we held that the trial court erred in placing the defendant on probation after conviction but prior to sentencing. We observed that the Probation Department’s legislatively conferred supervisory powers are exercisable only as to persons convicted of a crime, and only after the defendant has been sentenced to probation and not before (77 NY2d, at 675). Moreover, probation is only available as a sentencing option and there is no statute which expressly or impliedly permits a court to place a person convicted of a crime on probation before sentence is imposed (id.). Since the sentence imposed was premised on the defendant’s violation of conditions the court was not authorized to impose, we vacated the sentence and remitted for resentencing (id., at 676).

Our decision in Rodney E. was premised on the statutory powers of the Probation Department and, contrary to defendant’s contention, was not intended to rule out analogous dispositions involving, as in this case, placement of an individual under the supervision of a private agency. Because the instant case does not involve the supervision of the Probation Department or implicate its statutory powers, and the conditions imposed fall within the court’s power to oversee plea bargains tailored to individual circumstances, we now affirm.

Plea bargaining is a practice vital to the efficient administration of the criminal justice system (see, People v Seaberg, 74 NY2d 1, 7), and "an integral part of the plea bargaining process is the negotiated sentence” (see, People v Farrar, 52 NY2d 302, 306). Plea and sentence negotiation further important policy considerations, conserving law enforcement, judicial and penal resources, and permitting the parties to avoid the uncertainties inherent in the lengthy process of charge, trial, sentence and appeals, thereby "starting the offender on the road to possible rehabilitation” as soon as practicable (see, People v Selikoff, 35 NY2d 227, 233).

Most importantly, plea negotiations serve the ends of justice, enabling courts to impose individualized sentences (id.). "The determination of an appropriate sentence requires the exercise of discretion after due consideration given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction” (Farrar, supra, at 305). In order to effectuate these principles, some judicial discretion in overseeing and approving plea bargains, including the imposition of conditions, is desirable (see, Seaberg, supra, at 7).

Conditions imposed as part of a plea arrangement are valid if the parties agree to them and they do not violate any statute or contravene public policy (see, Seaberg, supra, at 7 [provided "there is no constitutional or statutory mandate and no public policy prohibiting it, an accused may waive any right which he or she enjoys”]; Selikoff, supra, at 238; cf., People v Spina, 186 AD2d 9, 9-10 [nonnegotiated condition improper where it was unilaterally imposed by court after the plea had been entered]). Indeed, conditional sentence promises have consistently been upheld even where long-term monitoring of the defendant’s activities was required (see, e.g., People v Outley, 80 NY2d 702, 713 [sentencing adjourned and favorable sentences promised on condition of no arrests]; People v Thompson, 193 AD2d 841 [sentencing adjourned for six months and sentence of nonincarceration promised on condition of successful completion of drug rehabilitation program]; People v Ellis, 162 AD2d 701 [sentencing adjourned and favorable sentence promised on condition of defendant’s attendance and enrollment in drug rehabilitation program and cooperation with caseworker]; People v Hladky, 158 AD2d 616, 619 [court promised to sentence defendant to probation conditioned on his remaining in St. John’s School for Boys until he was determined fit to leave]).

In the case before us, we conclude that the plea agreement and negotiated sentence, which was conditioned on defendant’s successful completion of the Fortune Society’s drug rehabilitation program, was not an imposition of illegal "interim probation.” The agreement furthers important public policy goals and is a proper implementation of the court’s authority with respect to a plea agreement tailored to the particular circumstances of the defendant’s case (see, Farrar, supra, at 306-307).

We are unpersuaded by defendant’s argument that the recent amendment to CPL 400.10 proves that plea agreements conditioned on successful completion of a drug treatment program were beyond Supreme Court’s authority at the time the instant agreement was negotiated. Rather, the legislative history demonstrates that it was enacted specifically to correct the problem created by the decision in People v Johnson (197 AD2d 638, supra), which concluded that such agreements constituted illegal "interim probation.” The Johnson decision deprived trial courts of lawful, preexisting "valuable sentencing options” and "seriously undermined a number of successful programs, such as the Treatment Alternative to Street Crime (TASC) programs” (Mem of Off of Ct Admin, L 1994, ch 509, 1994 McKinney’s Session Law News of NY, at A-1067 — A-1069). The sponsor’s memorandum in support of the amendment further clarifies the Legislature’s determination that Johnson was wrongly decided, pointing out that participation in a drug treatment program is not probation supervision (Bill Jacket, L 1994, ch 509). The bill was intended to give the courts statutory authority to order convicted defendants to comply with conditions set prior to sentencing (id.).

In this case, the condition of successful completion of a private drug treatment program, prior to sentencing, is within the trial court’s authority to oversee and approve plea bargains. Consequently, defendant is not entitled to withdraw his plea and the sentence should stand.

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

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine concur.

Order affirmed.

      . The amendment became effective July 26, 1994 and added subdivision (4) to CPL 400.10, authorizing a court, after conviction and before sentencing, to adjourn sentencing to a later date and order the defendant to comply with certain conditions, such as participation in an alcohol or substance abuse program. It replaced an experimental amendment to CPL 380.30 (3) which expired in 1994 pursuant to a one-year "sunset provision.”

      . TASC is a Federally funded program which evaluates prospective clients with the consent of the court and places those that are eligible (nonviolent offenders with a history of substance abuse) in an appropriate residential or outpatient treatment agency. TASC monitors the participant’s progress and regularly submits reports to the court (see, 1992 Ann Report, NY St Div of Probation and Correctional Alternatives, at 44-46). Under the TASC plea arrangement, the District Attorney moves to dismiss the felony charges after the defendant completes an in-house drug treatment program that typically lasts 6 to 24 months. If the defendant fails to complete the program or absconds, he or she is subject to substantial periods of incarceration.


author: Titone, J.

text:
    [650 NE2d 387, 626 NYS2d 729]
    The People of the State of New York, Respondent, v Jerry Starling, Appellant.
    Argued March 22, 1995;
    decided April 27, 1995

      POINTS OF COUNSEL

      Brian S. Drier, Hempstead, Matthew Muraskin, Kent V. Moston and Robert M. Bornstein for appellant.

      Denis Dillon, District Attorney of Nassau County, Mineóla (Margaret E. Mainusch and Peter A. Weinstein of counsel), for respondent.
   OPINION OF THE COURT

Titone, J.

This appeal presents the question whether, without evidence of an accompanying transfer of money or other consideration, a "handoff’ of narcotics between two individuals to avoid police detection constitutes a "sale” within the meaning of Penal Law § 220.00 (1). Relying on the broad language of the definition of "sell” contained in Penal Law § 220.00 (1), we hold that it does, and affirm defendant’s conviction.

Shortly after midnight on June 15, 1990, police officers observed defendant standing on a Nassau County street corner holding a small paper bag. The police saw defendant pass something from the bag to an unknown third party in return for what appeared to be paper currency, and the unknown person departed. As the officers exited their vehicle and began to approach defendant, defendant handed the bag to a juvenile standing adjacent to him. The juvenile walked up the street, followed by one of the officers. After the juvenile discarded the bag by sticking it in a fence, the officer retrieved it and found that it held seven plastic ziplock bags containing cocaine. Defendant was then arrested, and $376 was recovered from defendant’s pants pocket during a search incident to the arrest.

Based on the transfer of the drugs to the juvenile, defendant was charged by indictment with criminal sale of a controlled substance in the third degree (Penal Law §220.39 [1]). The indictment also charged defendant with criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]), or "possession with intent to sell.”

After the People rested, defendant moved for a trial order of dismissal for legal insufficiency on both counts of the indictment. As to count one, counsel argued that the People failed to prove that a "sale” had actually occurred. In support of that argument, counsel stated that the People had only proven that defendant had something in his hand that was taken by another, and that such conduct could not constitute a sale of a controlled substance. The People opposed this branch of the motion on the ground that under the Penal Law, the passing of the bag containing narcotics constituted a sale. Counsel moved to dismiss count two of the indictment, criminal possession of a controlled substance in the third degree, on the ground that the People had not proven that defendant "intended” to sell drugs, but only that he possessed them. The court denied the applications.

During the charge conference, defense counsel requested that a charge be given explaining that the terms to "give or dispose of’ contained in the Penal Law definition of "sell” were not intended to encompass a transfer to a person who jointly or constructively possessed the drugs with the defendant. Counsel also requested that the court charge the jury that a temporary transfer of a controlled substance, without the intent that the recipient use it or benefit from its possession, is not a sale. The court denied defendant’s requests, ruling that they were not supported by any precedent or by the language of the statute.

Relying verbatim on the Penal Law definition of "sell” contained in section 220.00 (1), the court defined that term for the jury as "to sell, exchange, give or dispose of to another, or to offer or agree to do the same.” The court also charged the jury that defendant could be convicted of the second count of the indictment if he "knowingly and unlawfully possessed * * * cocaine with the intent to sell it.” Following the court’s instructions to the jury, defense counsel objected to the court’s definition of "sell” and unsuccessfully renewed her prior charge requests.

During deliberations, the jury sent a note requesting a read-back of the definition of "sale.” The court read the note aloud before counsel and defendant. Defense counsel again requested the additional instructions that she had requested at the charge conference. The court denied the request on the ground that counsel could provide no authority to support her definition of sale. Some time later, the jury sent its second note requesting a rereading of the second count of the indictment, including the definition of intent. Within another hour the jury sent note three, which requested "two readings of the definition of intent.” On both occasions, the court read the note verbatim in the presence of the jury, counsel and defendant and proceeded to reread the same definition of intent it had previously given. Defendant did not lodge any objection to the manner of proceeding or to the substance of the court’s responses. The jury found defendant guilty on both counts of the indictment.

The Appellate Division affirmed, concluding that the court’s instructions on the relevant definitions were proper, and that defendant’s remaining claims either lacked merit or were unpreserved. A Judge of this Court granted defendant’s application for leave to appeal, and we now affirm.

Defendant was found guilty of criminal sale of a controlled substance in the third degree pursuant to Penal Law § 220.39 (1), which defines that crime as occurring when one "knowingly and unlawfully sells” a narcotic drug. The term "sell” is defined in section 220.00 (1) as "to sell, exchange, give or dispose of to another, or to offer or agree to do the same.”

By enacting a broad definition of the term "sell” to embrace the acts of giving or disposing of drugs, the Legislature has evinced a clear intent to "include any form of transfer of a controlled substance from one person to another” (Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 220, at 14). The statutory definition of that term conspicuously excludes any requirement that the transfer be commercial in nature or conducted for a particular type of benefit or underlying purpose (see, People v Lam Lek Chong, 45 NY2d 64, 72). Because the Legislature has chosen to supply its own definition of the term "sell” which "is expanded well beyond the ordinary meaning” of that term (People v Milom, 75 AD2d 68, 71), the trial court, in charging the jury here, properly declined to supplement that definition with defendant’s proffered dictionary definition of "sell,” which denotes a transaction that is commercial in flavor (see, Black’s Law Dictionary 1200 [5th ed]).

In recognition of the reality that the exchange of money and drugs may take place at different times and places through a sophisticated network of principals and intermediaries, this Court has concluded that "proof of the transfer of the drugs alone may suffice to prove the sale” (People v Lam Lek Chong, 45 NY2d 64, 72, supra). Indeed, the laws prohibiting narcotics sales encompass the actions of a "middleman,” who acts as a broker between the seller and the buyer (see, People v Argibay, 45 NY2d 45, 50) and whose role in the transaction may go no farther than that of a deliverer of the narcotics. Fundamentally, a "defendant may be guilty as a seller even if he does not receive any consideration for the transfer of drugs to the buyer” (People v Herring, 83 NY2d 780, 782).

Applying these principles, we conclude that defendant’s transfer of the narcotics to the juvenile was conduct constituting a sale within the plain language of Penal Law § 220.39 (1). Simply stated, by handing the contraband to the teen, defendant unquestionably "g[a]ye or dispose[d] of’ the drugs to another. The fact that the transfer may have been unaccompanied by compensation or any verbal representations indicating an offer or intent to sell does not remove the act, as defendant urges, from the scope of the prohibited conduct and does not render it less culpable than a transfer involving an immediate economic benefit to the seller (cf., People v Lam Lek Chong, 45 NY2d 64, 72, supra).

Contrary to defendant’s assertions, the record is also devoid of evidence from which a court could fairly infer that defendant and the juvenile "jointly possessed” the drugs or that the juvenile temporarily or constructively possessed them so that a "sale” to him would not have been possible. To establish that the juvenile constructively possessed the drugs, the record would have to contain evidence to support the inference that the juvenile exercised some degree of control over the contraband or over defendant’s person (see, People v Manini, 79 NY2d 561, 573) prior to the "handoff” which formed the basis of the sale conviction.

As we stated in the context of a defendant’s right to a charge on the agency defense, "[b]efore an agency charge is warranted, the evidence must be indicative of a relationship with the buyer [and] not merely raise ambiguities about the defendant’s connection to the seller” (People v Herring, 83 NY2d 780, 783, supra). So too, here, the fact that defendant and the juvenile continually stood "shoulder-to-shoulder” on a public street during the exchange with the third party and during the transfer forming the basis of the sale conviction, does not, as defendant contends, supply evidence indicative of the type of relationship they shared or of the juvenile’s dominion or control over the drugs or over defendant (see, People v Rodriguez, 194 AD2d 304, lv denied sub nom. People v Garcia, 82 NY2d 718). Accordingly, because gaps not bridged by this record leave only speculation as to the juvenile’s purported interest in the narcotics, the trial court properly declined to charge the jury on the concepts of joint, constructive and temporary possession.

Defendant also claims that the procedure followed by the court in responding to the jury’s second and third notes requesting a rereading of the definition of intent was improper because the court failed to comply with the notice requirements of CPL 310.30. Because the court read the entire content of the jury’s notes in open court prior to responding, this case is distinguishable from the situation presented in People v O'Rama (78 NY2d 270), where the trial court withheld from counsel the contents of a juror’s note, thereby depriving defendant of the opportunity to participate in formulating the court’s response. In the latter case we concluded that, notwithstanding the absence of a timely objection, because the error "entirely prevented] defense counsel from participating meaningfully in this critical stage of the trial and thus represented a significant departure from ' "the organization of the court or the mode of proceedings prescribed by law,” ’ ” traditional rules requiring timely objection did not prevent this Court’s review (id., at 279). By contrast, here, defense counsel was given notice of the contents of the jury notes and had knowledge of the substance of the court’s intended response — a verbatim rereading of the intent charge previously given on several occasions (cf., People v Cook, 85 NY2d 928 [decided today]). Accordingly, counsel’s silence at a time when any error by the court could have been obviated by timely objection renders the claim unpreserved and unreviewable here (see, People v DeRosario, 81 NY2d 801, 802).

We have reviewed defendant’s remaining contentions and conclude they lack merit.

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

Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed.

       The People did not base defendant’s prosecution on a violation of Penal Law §220.39 (9) which makes it a class B felony to sell "a narcotic preparation to a person less than twenty-one years old.”


author: Simons, J.

text:
    [650 NE2d 391, 626 NYS2d 733]
    In the Matter of Frederick R. Stortecky, Respondent-Appellant, v Michael A. Mazzone, as Surrogate of the County of Fulton, Appellant-Respondent.
    Argued March 22, 1995;
    decided May 2, 1995

      POINTS OF COUNSEL

      Dennis C. Vacco, Attorney-General, Albany (Wayne L. Benjamin, Jerry Boone, Peter H. Schiff, Victoria A. Graffeo and Andrea Oser of counsel), for appellant-respondent.

      Sise & Sise, Amsterdam (Robert J. Sise of counsel), for respondent-appellant.

      Farrell, Fritz, Caemmerer, Cleary, Barnosky & Armentano, P. C., Uniondale (John J. Barnosky, John R. Morken and llene S. Cooper of counsel), and G. Robert Witmer, Jr., Albany, for New York State Bar Association, amicus curiae.

   OPINION OF THE COURT

Simons, J.

Respondent is the Surrogate of Fulton County and petitioner the attorney for an estate being processed in respondent’s court. In January 1992 the executor submitted a petition for a final settlement of its account accompanied by waivers executed by all interested parties. Because respondent questioned some items in the account and petitioner’s fees for services, he ordered a hearing sua sponte to inquire into those questions. After the hearing commenced, petitioner instituted this CPLR article 78 proceeding seeking an order prohibiting respondent from continuing the hearing and an order of mandamus compelling him to issue a decree settling the accounts.

The issue presented is whether respondent acted in excess of his powers as Surrogate by ordering the inquiry when no interested party objected to settlement of the executor’s accounts or the attorney’s fee. Supreme Court held that respondent had and accordingly granted petitioner the relief requested and ordered respondent to enter a decree settling the accounts. The Appellate Division modified by reversing those parts of the judgment which prohibited an inquiry into attorney’s fees and directed entry of a decree awarding counsel the requested fee. On cross appeals to this Court, we conclude that a Surrogate has the power to initiate an inquiry into the propriety of accounts presented for settlement and the reasonableness of the legal fees charged the estate. We, therefore, modify the order of the Appellate Division and dismiss the petition.

I

Heinz Schmidt died testate a resident of Johnstown, New York, in June of 1987. He left an estate valued at approximately $1 million, the largest part of it represented by stock in Pepsico. His last will and testament, after making several specific bequests, created a residuary trust and directed that the income be distributed to Daniel Hannis during his life and then to the Johnstown Senior Citizens Club. If the Club ceased to exist, the income was to be distributed to the City of Johnstown. Schmidt’s will named Norstar Bank of Upstate New York (now Norstar Trust Company) as executor and trustee. Norstar hired petitioner Stortecky, the attorney who had drafted Schmidt’s will, to represent it in the probate of the will and the administration of the estate.

Upon completion of its duties, Norstar submitted to the court a petition for judicial settlement of the final account of Schmidt’s estate. The submission included waivers executed by the bank as executor, all trust beneficiaries, and the Attorney-General on behalf of charitable interests. The parties executing the waivers acknowledged that they personally appeared in the proceedings, waived issuance and service of a citation and consented that a decree be entered settling the executor’s accounts. The waivers expressly recited that the petition sought executor’s commissions in the amount of $36,105.55 and counsel fees of $41,000 plus disbursements.

After reviewing the accounting, respondent requested petitioner to produce certain vouchers and statements, the estate checkbook and an affidavit of legal services rendered. Petitioner submitted some of the documents and the requested affidavit. That information failed to overcome the Surrogate’s reservations, however, and, in May 1992, he issued an order sua sponte scheduling an evidentiary hearing and directing the executor and attorney to appear with their books and records. The order itemized the subjects to be addressed at the hearing, listing various dispositions of Schmidt’s property, the manner in which the executor’s commission was computed, and the reasonableness of attorney’s fees. Beneficiaries of the estate were advised that they could attend. After one day of hearings, petitioner commenced the instant proceeding seeking orders of mandamus and prohibition. Supreme Court granted the petition.

II

Prohibition is an extraordinary remedy, available only where there is a clear legal right to relief because a trial court has proceeded without jurisdiction or is "exceeding its authorized powers in a proceeding over which it has jurisdiction” (La Rocca v Lane, 37 NY2d 575, 578-579; see also, Matter of Holtzman v Goldman, 71 NY2d 564, 569; Matter of Rush v Mordue, 68 NY2d 348, 353). It does not lie as a means of seeking collateral review of mere trial errors or procedures regardless of how egregious they might be (La Rocca v Lane, supra, at 579).

The Constitution grants Surrogate’s Court jurisdiction over "all actions and proceedings relating to the affairs of decedents, probate of wills [and] administration of estates” (NY Const, art VI, § 12 [d]) and authorizes the court to exercise such equity jurisdiction as provided by law in fulfilling those responsibilities (see, NY Const, art VI, § 12 [e]; see also, SCPA 201). Respondent clearly had subject-matter jurisdiction in this case pursuant to the Constitution and the statutory powers granted Surrogate’s Court by the Legislature. The question, therefore, is whether the Surrogate acted in excess of his powers by inquiring into the contents of the account and the amount of the attorney’s fee submitted to him before approving the petition for a final accounting when the interested parties to the proceedings had raised no objection to those matters and had consented to entry of a decree.

A.

The Surrogate’s Court, as a court of limited jurisdiction, may exercise only the powers conferred upon it by statute and those powers incidental, inherent or necessary to do justice in a particular case to which its jurisdiction extends (see, Riggs v Cragg, 89 NY 479, 490). Turning first to the statutes, the provisions of the Surrogate’s Court Procedure Act implicitly grant the Surrogate broad discretionary powers. It provides that the court shall "exercise full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents” (SCPA 201 [3]). The powers incidental to those broadly granted are enumerated in section 209 which also provides that the itemized incidental powers are not exclusive (SCPA 209 [11]). Notably, the statute provides that the ultimate settlement of an account, whether compelled or voluntary, is to be accomplished by the Surrogate and that the court shall "make such order or decree as justice shall require” (SCPA 2206 [3]; 2211 [!])•

When an application for voluntary settlement of a judicial account is submitted, SCPA 2211 (1) directs the court to: (1) take the account submitted by the fiduciary; (2) hear the proofs of the interested parties; and, as noted, (3) settle the account as justice requires. It does not expressly authorize the Surrogate to withhold judicial approval absent objections by interested parties, nor does it forbid the Surrogate from making an inquiry into account matters before decreeing settlement. However, to require the Surrogate to "rubber stamp” the account because the parties do not object to it would vitiate the third statutory directive — that the Surrogate administer justice in settling the accounts. Indeed, it would seem self-evident that if a Surrogate acts judicially in approving an account and may not be compelled to enter a decree, then the court must have the correlative power to deny a decree or, when inquiry is warranted, to satisfy itself on questions arising during the proceedings. As we said long ago: "The general jurisdiction conferred upon the Surrogate’s Court, in matters relating to the conduct of executors and administrators, would seem meaningless, if not an absurdity, if it did not comprehend the right to decree intelligently, and upon equitable principles, and to order their conduct upon principles of justice and of reason” (Matter of Wagner, 119 NY 28, 31, supra). The parties in this case sought judicial, rather than private, settlement of the executor’s accounting and they cannot complain that the Surrogate sought to be fully informed in the premises before exercising his judicial discretion.

Thus, we conclude that the Surrogate’s power to initiate an examination of the items on an account before approving them is reasonably to be implied from the Constitution, the statutes and the case law. A Surrogate need not inquire when all parties have consented but he or she is not foreclosed from doing so if the circumstances indicate the need for an inquiry.

The Appellate Division, in affirming prohibition, cited two of its prior decisions, Matter of Dolan (176 AD2d 1019) and Matter of Veccio (49 AD2d 380), both of which expansively apply our decision in Matter of De Vany (205 NY 591, revg 147 App Div 494). De Vany did not directly address whether the Surrogate could sua sponte conduct inquiries on the matters in the final account, but held only that where a legatee had given a portion of her legacy to the executor, and signed a release for the legacy, the Surrogate erred in surcharging the executor for that sum because (1) the legatee did not object to the executor’s receipt of the funds (apparently intending a gift) and (2) the funds would not in any event become a part of the residuary estate. The decision holds only that the surcharge was improper on the facts presented; it does not stand for the broad proposition, urged upon this Court by petitioner and amicus, that the Surrogate must settle an executor’s accounts without inquiry where all interested parties have waived citation and consented to the settlement.

B.

Similarly, neither the Surrogate’s Court Procedure Act nor the Uniform Rules for Trial Courts expressly confer authority on the Surrogate to review the attorney’s fees when all parties have knowingly consented to payment of the requested fee (cf., SCPA 2307; 22 NYCRR 207.45 [b]). Nonetheless, Surrogate’s Court is authorized to exercise "all of the powers that the supreme court would have in like actions and proceedings” (SCPA 209 [10]; see generally, Siegel and Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 58A, SCPA 209, at 182-183), and it is well established that Supreme Court has inherent power to supervise the fees attorneys charge for legal services (see, Matter of First Natl. Bank v Brower, 42 NY2d 471, 474; Gair v Peck, 6 NY2d 97; see also, Matter of Freeman, 34 NY2d 1, 10). Accordingly, we conclude the Surrogate had the authority to inquire into the reasonableness of counsel’s fee even though agreed upon by the executor and assented to by the beneficiaries.

III

Confirming for the first time the Surrogate’s power to initiate such inquiries sua sponte, we recognize the potential dangers of Surrogates doing so, particularly in cases such as this which appear to be free of any hint of fraud or concealment. A. Surrogate’s actions in uncontested matters can cause the estate and its beneficiaries unnecessary expense and delay which they are remediless to prevent. Moreover, such inquiries may seriously damage the reputation of the attorney or executor involved by creating unwarranted suspicions of overreaching or misconduct. Indeed, the appearance of meddling may diminish the dignity of the court itself. Our recitation of these dangers should serve as a caution to Surrogates generally, that though they do not act in excess of their powers by inquiring into the contents of a settlement petition or the attorney’s fees charged an estate, they must be sensitive to the prejudice which may accompany unnecessary hearings.

Accordingly, the order of the Appellate Division should be modified, without costs, by dismissing the petition in its entirety, and, as so modified, affirmed.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order modified, etc.

       In this Court petitioner has abandoned its application for mandamus, apparently recognizing that mandamus may issue only to compel a ministerial act, not the exercise of judicial discretion (see, Matter of Brusco v Braun, 84 NY2d 674) and that even when no objections are made to the account a court acts judicially, not ministerially, in approving a petition for final settlement of an executor’s accounts (see, Matter of Wagner, 119 NY 28, 31-32; Wigand v Dejonge, 8 Abb NC 260).


text:
    [650 NE2d 395, 626 NYS2d 737]
    In the Matter of Philip DePoalo, Appellant, v County of Schenectady et al., Respondents. (Proceeding No. 1.) In the Matter of Alfred Greenewald, Appellant, v County of Schenectady et al., Respondents. (Proceeding No. 2.)
    Argued March 21, 1995;
    decided May 2, 1995

      POINTS OF COUNSEL

      Joseph P. McGovern, Albany, for appellant in the first above-entitled proceeding.

      Joseph P. McGovern, Albany, for appellant in the second above-entitled proceeding.

      Roemer and Featherstonhaugh, P. C., Albany (James W. Roemer, Jr., and Liesl K. Zwicklbauer of counsel), for respondents in the first and second above-entitled proceedings.
   OPINION OF THE COURT

Smith, J.

The primary issue here is whether the provisions of General Municipal Law § 207-c require an applicant for benefits thereunder to submit to medical examination to determine eligibility prior to granting benefits. Because the Appellate Division properly concluded that entitlement to benefits under General Municipal Law § 207-c authorizes a determination by the municipality of eligibility prior to payment of statutory benefits, we affirm.

Petitioners Philip DePoalo and Alfred Greenewald (petitioners) in these CPLR article 78 proceedings challenge respondent County of Schenectady’s (respondent) denial of benefits under General Municipal Law § 207-c. While at home on November 20, 1991, petitioner DePoalo suffered chest pains resulting in his hospitalization for approximately five days. DePoalo, a correction officer employed by respondent, filed an application for benefits pursuant to General Municipal Law § 207-c for illness incurred in the course of his employment. A letter from his personal physician indicating that he suffered from unstable angina pectoris and an occluded right coronary artery supported DePoalo’s application for benefits. The underlying cause of his injury was a preexisting arteriosclerotic heart disease. Petitioner’s physician concluded that job-related stress precipitated his chest pains resulting in hospitalization. Respondent county initially withheld determination of DePoalo’s application pending a further medical examination. However, DePoalo’s application was ultimately denied on the basis of insufficient medical evidence to support a finding that he was taken ill as a result of the performance of his duties following his refusal to attend an examination scheduled by the county.

Petitioner Alfred Greenewald is also a correction officer employed by County of Schenectady. Greenewald filed an application for General Municipal Law § 207-c benefits on March 23, 1992 as a result of chest pains he suffered on March 20, 1992, while on duty in the waiting room of a hospital, requiring a three-hour hospital emergency room observation. At the direction of his personal physician, Greenewald had several tests performed, including an upper GI series, that disclosed the existence of a hiatal hernia. These tests required Greenewald to miss two days of work, for which Greenewald filed an application for benefits pursuant to General Municipal Law § 207-c for illness incurred in the course of his employment. Respondents denied Greenewald’s application and charged him with two days of sick leave for the absence, finding a lack of adequate medical evidence to support the application. Petitioners challenge respondent county’s respective determinations, contending that the county is without authority to require a medical examination prior to determining eligibility for benefits under General Municipal Law § 207-c and that such a determination is arbitrary and capricious.

Supreme Court, in separate decisions, granted both petitions, finding the denial of General Municipal Law § 207-c benefits by respondent County of Schenectady an abuse of discretion. In DePoalo, Supreme Court set aside respondent county’s determination, although it acknowledged the rationale of a prior independent medical examination before determining eligibility. The court nonetheless found no provision in the statute for an examination prior to qualification for General Municipal Law § 207-c benefits. Supreme Court further found the procedure employed by respondent county to determine eligibility inappropriate under the statute, while simultaneously finding said respondent’s ultimate conclusion, that petitioner did not demonstrate that his illness resulted from the performance of duties, justifiable.

In granting petitioner Greenewald’s petition, the same Judge concluded that an employer must initially grant General Municipal Law § 207-c benefits when an applicant submits uncontroverted medical evidence causally connecting the need for medical or hospital care or treatment with the performance of the applicant’s duties. Supreme Court determined that the employer may, however, schedule medical examinations as necessary to confirm the continued right of an employee to receive benefits.

The Appellate Division, in a single order, reversed in each proceeding and dismissed the respective petitions, finding that an applicant for benefits under General Municipal Law § 207-c must establish both a disability and a causal connection between the injury or illness and the performance of the applicant’s work duties. The Court found further that the applicant may be directed to submit to a predetermination examination to resolve uncertainty concerning either element, maintaining that to find otherwise would deprive the municipality of its right to deny fraudulent or questionable claims.

Petitioner DePoalo argues that the plain and clear language of the statute does not provide for predetermination inspection by a physician for the municipality and that the legislative history supports petitioner’s application for General Municipal Law § 207-c benefits. Petitioner Greenewald argues that he is entitled to General Municipal Law § 207-c benefits and that respondent County of Schenectady’s determination was arbitrary and capricious.

We hold that General Municipal Law § 207-c authorizes a municipality to direct an applicant to undergo a medical examination to provide information upon which the municipality may make a determination that an injury or illness occurred in the performance of duty prior to the awarding of benefits. This conclusion results both from the plain wording of the statute and from the purpose of General Municipal Law § 207-c.

General Municipal Law § 207-c provides in pertinent part:

"Any sheriff, undersheriff, deputy sheriff or corrections officer of the sheriff’s department of any county * * * who is injured in the performance of his duties or who is taken sick as a result of the performance of his duties so as to necessitate medical or other lawful remedial treatment shall be paid by the municipality by which he is employed the full amount of his regular salary or wages until his disability arising therefrom has ceased * * * Provided, however, * * * the municipal health authorities or any physician appointed for the purpose by the municipality, after a determination has first been made that such injury or sickness was incurred during, or resulted from, such performance of duty, may attend any such injured or sick policeman * * * for the purpose of providing medical, surgical or other treatment, or for making inspections and the municipality shall not be liable for salary or wages payable to such policeman, or for the cost of medical treatment or hospital care furnished after such date as such health authorities or physician shall certify that such injured or sick policeman has recovered and is physically able to perform his regular duties” (General Municipal Law § 207-c [1]; emphasis added).

First, we conclude that the plain wording of General Municipal Law § 207-c authorizes the municipality to make a determination that the injury or illness was related to work performance. The statute authorizes a physician, on behalf of the municipality, to render medical or surgical treatment to the officer. This treatment may be given, however, only after a determination that the injury or illness is work related. The only logical interpretation of the statute is that the municipality, rather than the affected officer, is authorized to make that determination.

Petitioners argue that once they have presented prima facie evidence via a personal physician’s report that their injury or illness is causally connected to the performance of their duties, they are automatically entitled to benefits. However, the statute does not provide for automatic entitlement. Petitioners would have the municipality initially accept as valid every application for benefits and afterwards go back and determine whether or not the claim is legitimate. Such a practice would unduly burden the administration of such benefits, in some instances causing duplication of tasks. Petitioners’ construction would open the floodgates to the unscrupulous who would usurp the statute’s intention, potentially wasting municipal resources. As the statute makes no provision for recoupment of benefits paid on fraudulent claims, it would appear proper for the municipality to determine first if the claim is legitimate and then if necessary provide back pay for benefits lost or restoration of leave credits improperly used (Matter of Crawford v Sheriff’s Dept., 152 AD2d 382, 386-387, lv denied 76 NY2d 704).

Second, the legislative history of General Municipal Law § 207-c supports the conclusion that the municipality rather than the officer make the determination that the injury or illness is work related. General Municipal Law § 207-c was enacted in 1961, to provide disability benefits to police officers injured in the line of duty. This statute is modeled after General Municipal Law § 207-a, enacted in 1941, which provides similar benefits to firemen injured or taken sick as a result of their duties. Concerns over the potential abuse of municipal resources created by some police officers receiving dual benefits (i.e., collecting full salaries as policemen under this statute while simultaneously employed on a full-time basis in private industry) or partially disabled officers capable of performing light duty or retiring fully due to disability, collecting full benefits under General Municipal Law § 207-c, as was experienced under General Municipal Law § 207-a with some firemen, were arguments advanced by those opposed to the enactment of General Municipal Law § 207-c and to the provision of similar benefits to police officers. It is apparent from this legislative history that the statute should be construed to protect municipalities from fraudulent or unworthy claims. We therefore conclude that the language of General Municipal Law § 207-c clearly authorizes such municipalities to require an independent medical examination prior to a determination of eligibility for receipt of benefits under the statute.

Here, petitioner DePoalo submitted a report from his personal physician specifically indicating the existence of extensive preexisting medical conditions. Petitioner DePoalo’s treating physician, Dr. Eugene Drago, provided a letter supporting petitioner’s application for General Municipal Law § 207-c benefits. In the letter, Dr. Drago indicated that petitioner is under his care for the treatment of heart disease and currently under medical therapy. Dr. Drago explained that it was his feeling that petitioner’s preexisting condition was aggravated by job-related stress and concluded that such stress exacerbated petitioner’s preexisting condition, causally relating to petitioner’s hospitalization. However, the record indicates that petitioner had a lengthy medical history and familial history of heart disease. Thus, it was appropriate for the employer to require petitioner to undergo a medical examination to initially determine if the performance of petitioner’s duties contributed or caused the exacerbation of his severe medical condition before rendering benefits.

Petitioner Greenewald argues only that he met his burden of proving a causal connection between his illness and his employment. In support of his application for General Municipal Law § 207-c benefits, he submitted the emergency room report, the medical imaging report from his upper GI series and an attending physician’s report accompanying the C-4 Incident Report for the purposes of workers’ compensation. Neither report clearly indicates a causal connection between the performance of petitioner’s duties and the chest pains he suffered, other than that he happened to suffer an acute hiatal hernia attack while on duty. That mere fortuity of timing does not entitle an employee to benefits under General Municipal Law § 207-c, which provides benefits when an employee is "taken sick as a result of the performance of his duties.” Here, the record is devoid of any causal connection between Greenewald’s employment and illness, and respondent was justified in denying his application for those benefits.

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

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.

Order affirmed in each proceeding, with costs.

      . L 1961, ch 920.

      . L 1941, ch 15.

      . Bill Jacket, L 1961, ch 920.


author: Chief Judge Kaye.

text:
    [650 NE2d 399, 626 NYS2d 741]
    City School District of City of Newburgh, Appellant, v Hugh Stubbins & Associates, Inc., et al., Respondents.
    Argued and submitted March 21, 1995;
    decided May 2, 1995

      POINTS OF COUNSEL

      Bouck, Holloway, Kiernan and Casey, Albany (John R. Casey and David B. Cabaniss of counsel), for appellant.

      Morris, Graham, Stephens & McMorrow, Westbury (Thomas J. Graham and Gerald P. McMorrow of counsel), for Hugh Stubbins & Associates, Inc., respondent.

      Applebaum, Eisenberg, Bauman & Appelbaum, Liberty (Harold J. Bauman of counsel), for Solart Builders, Inc., respondent.

      L'Abbate, Balkan, Colavita & Contini, Garden City (Anthony P. Colavita and Harry Makris of counsel), for Van Zelm, Heywood & Shadford, respondent.

      Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (David L. Wong of counsel), for George Silverman, respondent.
   OPINION OF THE COURT

Chief Judge Kaye.

When a defectively assembled pipe fitting bursts, damaging a library’s book collection, can the library sue those responsible for design and construction of the building some 15 years earlier? Because the rule is settled that an owner’s cause of action accrues against a builder upon completion of construction, and we perceive no basis to apply a different rule where a cause of action rests on damage to personal rather than real property, we conclude that plaintiff’s cause of action was time-barred.

In 1972 or 1973, the Urban Development Corporation agreed to assist the Newburgh School District in the design, financing and construction of a library. The City of Newburgh Urban Renewal Agency transferred title to a parcel of property to the UDC, which entered into contracts to construct the building with defendants Solart Builders, Inc. as general contractor, Hugh Stubbins & Associates, Inc. as architect, and Van Zelm, Heywood & Shadford as mechanical and electrical engineers. Upon completion of construction in late 1975, UDC sold the building to plaintiff.

Within the structure of the building was a copper pipe fitted with a steel plug, which began a gradual chemical corrosion of the integrity of the pipe. Fifteen years later, on October 13, 1990, a water pipe in the library burst, causing plaintiff to suffer $1,500,000 damage to personal property — including books, bookshelves, and office supplies and furnishings — and $500,000 damage to its real property. When plaintiff brought suit against defendants alleging five causes of action rooted in negligence, Supreme Court dismissed the complaint, upon motion of the defendants, as barred by the Statute of Limitations since a cause of action for defective construction and design generally accrues upon completion of construction. The Appellate Division affirmed, as do we.

In cases against architects or contractors, the accrual date for Statute of Limitations purposes is completion of performance (Sosnow v Paul, 36 NY2d 780; see also, State of New York v Lundin, 60 NY2d 987; Cabrini Med. Ctr. v Desina, 64 NY2d 1059). We made clear in Sears, Roebuck & Co. v Enco Assocs. (43 NY2d 389) that no matter how a claim is characterized in the complaint — negligence, malpractice, breach of contract — an owner’s claim arising out of defective construction accrues on date of completion, since all liability has its genesis in the contractual relationship of the parties.

Plaintiff recognizes that any claim for damage to the building itself would normally be barred under this rule (Sears, Roebuck, 43 NY2d, at 396), but contends that its claim does not fall under the general rule of accrual because it was a third party to the construction contract, and because it demanded compensation for personal, not real, property. Neither contention has merit.

Here it was UDC — not plaintiff — that entered into a contract with defendants to build the library. Because of this lack of privity, plaintiff argues, Sears, Roebuck does not control. Since there is no contract between the parties, the liability did not arise out of a contractual relationship, and therefore plaintiff — as a stranger to the contract — would be able to bring suit in negligence alone (see, Cubito v Kreisberg, 69 AD2d 738, affd 51 NY2d 900).

Plaintiff, however, was not a stranger to the contract. UDC undertook construction of the library on behalf of plaintiff, and plaintiff was the intended beneficiary of the contract. That fact, and the intended purpose of the building, was known to all parties at the time the contracts were negotiated. Plaintiff reviewed and approved the architectural plans and specifications. It retained control of the budget and change orders during construction. Plaintiff also had a representative at the construction site on a daily basis. Such a relationship— even pleaded by plaintiff in support of its claim of negligent design and construction — was the "functional equivalent” of privity (see, Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 419).

Plaintiff next contends, in support of its negligence claims, that where recovery is sought for damages to personal, as opposed to real, property, the claim accrues at the time of damage, not the time of completion. Because, however, both claims arise from breach of contractual obligation, no rational distinction supports extension of a cause of action to an owner for harm to personal property when, under the same circumstances, we deny a claim for damage to real property (Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669, 675). In both instances, liability arises out of the contractual relationship, where damage to real or personal property flowing from faulty design or construction can be anticipated, and steps taken to protect against the consequences of such damage. In a different category, of course, is injury to the person — a circumstance not present here.

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

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, with costs.