author: Smith, J. Titone, J.

text:
    [654 NE2d 967, 630 NYS2d 693]
    The People of the State of New York, Respondent, v Joshua Washington, Appellant.
    Argued April 26, 1995;
    decided June 14, 1995
    POINTS OF COUNSEL

      James M. Branden, New York City, and Philip L. Weinstein for appellant.
    The People’s failure to turn over an audiotape and all memorialized statements prepared by the Medical Examiner who testified for the prosecution at trial violated the Rosario rule, as a matter of law, mandating reversal of appellant’s conviction, or, in the alternative, a hearing on the "control” issue should be ordered. (People v Young, 79 NY2d 365; People v Rosario, 9 NY2d 286; People v Jackson, 78 NY2d 638; People v Jones, 70 NY2d 547; People v Ranghelle, 69 NY2d 56; People v Perez, 65 NY2d 154; People v Fields, 146 AD2d 505; People v Schoolfield, 196 AD2d 111; People v Novoa, 70 NY2d 490; People v Flynn, 79 NY2d 879.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Michael Gore and Roseann B. MacKechnie of counsel), for respondent.
    I. The Court below properly affirmed the denial of defendant’s CPL 440.10 motion because the People had no obligation under People v Rosario (9 NY2d 286) to provide defendant with a copy of an Assistant Medical Examiner’s audiotape. (People v Jones, 70 NY2d 547; People v Perez, 65 NY2d 154; People v Young, 79 NY2d 365; People v Wallace, 76 NY2d 953; People v Fishman, 72 NY2d 884; People v Flynn, 79 NY2d 879; People v Reedy, 70 NY2d 826; People v Bailey, 73 NY2d 812; People v Tissois, 72 NY2d 75.) II. Irrespective of the control determination, defendant is not entitled to vacatur of his judgment of conviction. (People v Jackson, 78 NY2d 638; People v Robles, 194 AD2d 750.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Linda Cantoni, Steven Chananie and Sharon Y. Brodt of counsel), amicus curiae, pro se.

    Material in the sole possession of the office of Chief Medical Examiner is not "within the control of a local prosecutor” and is therefore not Rosario material. (People v Washington, 196 AD2d 346; People v Smith, 209 AD2d 267; People v Novoa, 206 AD2d 132; People v Kelly, 209 AD2d 436; People v Rosario, 9 NY2d 286, 368 US 866; People v Perez, 65 NY2d 154; People v Ranghelle, 69 NY2d 56; People v Consolazio, 40 NY2d 446, 433 US 914; People v Malinsky, 15 NY2d 86; People v De Jesus, 69 NY2d 855.)

      James M. Catterson, Jr., District Attorney of Suffolk County, Hauppauge (Donald J. Siewert and Patrick J. Hynes of counsel), for New York State District Attorneys Association, amicus curiae.

    The Rosario rule should not be extended to encompass material in the sole possession of nonpolice agencies. (People v Ranghelle, 65 NY2d 56; People v Jones, 70 NY2d 547.)
   OPINION OF THE COURT

Smith, J.

The issue here is whether an audiotape made by an Associate Medical Examiner is Rosario material which must be turned over to defendant by the prosecutor. Because the audiotape may not be deemed in the control or possession of the People, we affirm the order of the Appellate Division refusing to vacate defendant’s conviction.

Prior to defendant’s trial for the fatal stabbing of Kevin Gregg, Dr. Joaquin Gutierrez, an Associate Medical Examiner of the office of the Chief Medical Examiner (OCME), performed the autopsy on the victim’s body. Gutierrez testified concerning the location and extent of the victim’s wounds and stated that two different knives may have been used in the killing. Defendant was convicted on April 25, 1991, after a nonjury trial, of manslaughter in the first degree.

On December 6, 1993, the Appellate Division affirmed defendant’s conviction (see, People v Washington, 199 AD2d 294), and a Judge of this Court denied defendant’s application for leave to appeal (People v Washington, 83 NY2d 811). While defendant’s direct appeal was pending, defendant filed a CPL 440.10 motion to vacate his conviction, contending that the People failed to relinquish an audiotape made by Dr. Gutierrez immediately after the autopsy. Supreme Court denied the motion and defendant appealed to the Appellate Division. The Appellate Division unanimously affirmed (196 AD2d 346), and a Judge of this Court granted defendant’s application for leave to appeal.

Defendant contends that the People’s failure to turn over the audiotape and all memorialized statements prepared by the Medical Examiner who testified for the prosecution at trial, violated the Rosario rule as a matter of law, requiring reversal of the conviction, or a hearing to determine whether the People exert sufficient "control” over OCME. The People counter that Rosario does not compel them to provide defendant with the materials defendant seeks and that notwithstanding the issue of "control,” defendant is not entitled to reversal of his conviction.

In People v Rosario (9 NY2d 286, 289, cert denied 368 US 866), we held that the People were required to provide for defendant any recorded statement of a prosecution witness made to the police, District Attorney or the Grand Jury, related to that witness’ trial testimony. This rule was codified in CPL 240.45 (1) (a). Rosario material has been held to include notes and follow-up reports of police officers (People v Martinez, 71 NY2d 937, 939; People v Gilligan, 39 NY2d 769; People v Malinsky, 15 NY2d 86, 90); memo books of police officers (People v Ranghelle, 69 NY2d 56); complaint reports filed at police precincts (id.); bribe-offer statements to a witness recorded at the request of the police (People v Perez, 65 NY2d 154); a police report containing statements of a witness (People v Novoa, 70 NY2d 490) and worksheets of a prosecutor containing notes of oral statements by witnesses (People v Consolazio, 40 NY2d 446).

In each of the aforementioned cases, it was clear that the People’s Rosario obligation included the material which was not produced because it was in the actual possession of a law enforcement agency. Where the material sought is in the possession of a person or agency other than a law enforcement agency, the test of the People’s obligation to produce is whether the items sought are in the "control” of the People (see, People v Flynn, 79 NY2d 879, 882 [material in possession of Department of Motor Vehicles, a State administrative agency, were not in control of prosecutor]; People v Tissois, 72 NY2d 75, 78 [statements of victims of sexual abuse made to a social worker were not in control of the prosecutor]; People v Reedy, 70 NY2d 826, 827 [a personal account of a sexual attack written by the victim, a free-lance writer, was not Rosario material which was in the control of the prosecutor]; see also, People v Fishman, 72 NY2d 884 [untranscribed plea minutes were not Rosario material which the People were required to produce]).

Turning to the case before us, it is clear that the duties of OCME are, by law, independent of and not subject to the control of the office of the prosecutor, and that OCME is not a law enforcement agency. The Medical Examiner is required to perform an autopsy in cases where a homicide is being investigated (Public Health Law § 4210 [2]; § 4210-c [2]; NY City Charter § 557 [f]). According to section 557 (g) of the NY City Charter, the Chief Medical Examiner must maintain "full and complete records in such form as may be provided by law” and "shall promptly deliver to the appropriate district attorney copies of all records relating to every death” where in the opinion of the Medical Examiner some indication of criminality exists. Administrative Code of the City of New York §§ 17-202 and 17-203 also require OCME to consider the circumstances surrounding a death to determine the cause, especially where foul play is suspected. The mandate to OCME is clear, to provide an impartial determination of the cause of death. That, however, cannot be equated with control by the People, which is essential to the Rosario obligation. The People have no power to dictate the contents or practices within OCME. Moreover, Medical Examiners have no authority to gather evidence with an eye toward prosecuting a perpetrator. Neither the New York City Charter nor the Administrative Code requires that they have training in law enforcement.

Although it was defendant’s responsibility to subpoena the audiotape, we caution that nothing here should be construed to "dilute the Rosario obligation” (see, People v Ranghelle, 69 NY2d 56, 64, supra). Rather, that obligation simply does not arise where, as here, the People lack control over the items in question and the entity in possession of them is not a law enforcement agency (see, People v Reedy, 70 NY2d 826, 827, supra; People v Flynn, 79 NY2d 879, 882, supra).

Because we have determined that the People do not have sufficient "possession or control” over documents maintained by OCME, we need not address whether the audiotape would have constituted a "duplicative equivalent” of the information contained in the autopsy report. Moreover, nothing in this record indicates that the defendant should receive a hearing on the issue of control. The facts here are distinguishable from instances where the defendant seeking evidence has not had the opportunity to determine whether the evidence is within the People’s control. Illustrative of this point is our decision in People v De Jesus (69 NY2d 855). De Jesus involved an 11-year-old child’s claim that her father had raped and sexually abused her. The defendant sought statements the child made to a social worker employed by the Bureau of Child Welfare. The People’s objection to the defendant’s request was sustained on grounds differing from those the People argued at this Court. Because the trial court did not have the opportunity to address the People’s subsequent contentions here, that the statements were privileged under CPLR 4508 and that nothing in the prosecutor’s possession was relevant to the defendant’s case, we were compelled to remand for a new trial. Here, defendant and the trial court have had ample opportunity to address the People’s consistent position — that they do not exert sufficient control over OCME to require production of the audiotape. Thus, we hold that, on the facts presented, defendant was not entitled to have the prosecutor produce the audiotape made subsequent to the autopsy.

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

Titone, J.

(dissenting). When the office of the Chief Medical Examiner (OCME) investigates the circumstances surrounding a death by homicide, it is acting in the capacity of a law enforcement agency. Further, when such an investigation generates reports and other documentary material, those reports and material are, by statute, within the People’s direct and immediate control. The combination of these factors makes OCME reports and related documents Rosario material within the meaning of CPL 240.45. Since the majority holds otherwise, I dissent.

Initially, the majority’s rationale is flawed because it confuses the People’s control over the documents — a critical issue in Rosario analysis — with the People’s control over the documents’ contents and the entity that created the documents— considerations that are irrelevant in this context. The majority’s only explanation for its holding on the control issue is that "[t]he People have no power to dictate the contents or practices within OCME.” (Majority opn, at 193.) Yet, every case that the majority cites in connection with the question refers to the People’s "control” of the statements, not of the agency that generated or possessed them (see, People v Flynn, 79 NY2d 879, 882; People v Fishman, 72 NY2d 884, 886; People v Tissois, 72 NY2d 75, 78; People v Reedy, 70 NY2d 826, 827). Significantly, in People v Perez (65 NY2d 154, 158-159), this Court specifically rejected a mode of analysis based on the People’s relationship with the maker of the statement rather than the document embodying the statement itself.

Furthermore, control by the prosecutor over a statement’s contents or its maker or custodian rather than over the statement itself is a logically untenable criterion for determining the validity of a Rosario claim. The District Attorney has no more legal right or duty to dictate the practices of the police department than he has to dictate the practices of the Medical Examiner. While there may be a considerable degree of informal cooperation between the District Attorney and the police, the same assumption may also be made about the relations between the District Attorney and OCME. Furthermore, the District Attorney certainly does not have the power to "dictate the contents” of the many statements and documents that are generated by the police and are routinely treated as Rosario material. Thus, the People’s right to "dictate the contents or practices within” the particular agency really provides no more basis for withholding Rosario status from OCME documents than it would for withholding that status from police documents (see, People v Perez, supra, at 158-159; see, e.g., People v Martinez, 71 NY2d 937; People v Novoa, 70 NY2d 490).

Contrary to the majority’s analysis, the "control” element, when correctly applied, points clearly and unambiguously toward treating OCME documents as Rosario material. Under the New York City Charter, OCME is required to "promptly deliver to the appropriate district attorney copies of all records relating to every death as to which there is, in the judgment of the medical examiner * * *, any indication of criminality” (ch 22, § 557 [g]). Further, the District Attorney or Police Commissioner may require OCME to deliver, in addition to the autopsy report, "such further records, and such daily information, as they may deem necessary” (Administrative Code of City of NY § 17-205; see also, County Law §§ 671, 673, 674 [3] [a]; § 677). Hence, unlike each of the "control” cases the majority cites (People v Flynn, supra; People v Tissois, supra; People v Fishman, supra; People v Reedy, supra; see also, People v Bailey, 73 NY2d 812), the District Attorney has direct and immediate control as a matter of right over the reports generated by OCME during the course of its investigation. Indeed, the District Attorney’s "control” of OCME reports is even more conclusive than is his "control” of documents possessed by police, since the latter are ordinarily made available to the People only by virtue of custom, practice and internal rules. Significantly, nothing in the majority’s writing explains what the element of "control” could possibly mean if a direct and absolute statutory right to delivery of the documents, without the need to resort to subpoena, is not sufficient.

Similarly flawed is the majority’s unexplained assumption that OCME, which has a significant statutorily delegated role in the investigation of crime, is not a "law enforcement agency” when it acts in pursuit of its duty to inquire into possible homicides. Whenever it receives notice of a death under suspicious circumstances, OCME must "fully investigate the essential facts,” record all aspects of its investigation and take possession of any potential evidence it finds at the scene (Administrative Code § 17-202). OCME is also required to follow up with an autopsy and related inquiries "[i]f the medical examiner * * * has reason to suspect that a homicide has been committed” (Administrative Code § 17-203). Needless to say, the results of OCME’s homicide-related inquiries are often central to the People’s case once the matter goes to trial (see, e.g., People v Stewart, 40 NY2d 692). Additionally, OCME may play an important role even in nonhomicide cases by supplying the People with critical biochemical forensic analyses, such as serology testing and DNA profiling (see, e.g., People v McCain, 134 AD2d 287, 288; see also, People v Robles, 194 AD2d 750).

The fact that OCME has other functions unrelated to its role in investigating crime cannot be a valid reason to withhold the "law enforcement” label, since the same can be said about the police (see, People v De Bour, 40 NY2d 210, 218). Similarly, the fact that OCME is expected to conduct its investigations in an impartial manner is an unpersuasive ground for distinguishing that agency’s investigative function from that of the police, who also are expected to conduct their investigations with the sole goal of ferreting out the truth. Finally, the fact that "the duties of OCME are, by law, independent of and not subject to the control of the office of the prosecutor” (majority opn, at 192) is not a reasonable basis for ignoring that agency’s law enforcement responsibilities, since the police are also by law independent of the District Attorney.

In sum, where, as here, a local governmental agency operates cooperatively with the District Attorney’s office and performs investigative functions analogous to those performed by the police, it is difficult to justify a refusal to treat that agency as a member of the law enforcement team (Martinez v Wainwright, 621 F2d 184; see, People v Nisonoff, 293 NY 597, 604). While there are many other municipal agencies that incidentally assist the police or the District Attorney where appropriate, OCME is one of the few that has a statutorily imposed responsibility to investigate criminal homicides and that routinely assists the police and prosecutors in the investigation of other crimes. As such, OCME is as much a "law enforcement” agency as are the forensic units of the police department.

Finally, it makes little practical or logical sense to treat OCME autopsy reports and other relevant material as something other than Rosario material. In the vast majority of homicide cases, the autopsy report will have automatically been forwarded to the District Attorney in compliance with section 557 (g) of the New York City Charter well before the commencement of trial. Where that statutorily mandated production has occurred, the District Attorney, having actual possession and control of the report, will then be required to turn it over to the defense under a routine application of CPL 240.45. It is only in that very small number of cases where there has been a failure to comply with section 557 (g) that the majority’s rule will apply and the autopsy report may be lawfully withheld from the defense. The operation of the majority’s rule will thus lead to arbitrary results that are rendered, if anything, even more senseless by the fact that the rule works to the defendant’s disadvantage only when the Medical Examiner has failed to perform a duty enjoined by law. There can be no justification for making the outcome turn on such a capricious determinant.

Typically in homicide prosecutions, a representative of OCME is called by the People to testify about the cause and physical circumstances surrounding the death. In many of these prosecutions, this testimony is critical to the resolution of a significant litigated issue such as causation or justification. In such situations, the ability of the accused’s counsel to conduct an informed cross-examination of the OCME witness may be crucial to the conduct of the defense. In my mind, it offends " 'a right sense of justice’ ” to deprive a defendant of the full benefit of timely disclosure in these cases solely because the Medical Examiner has failed to deliver the documents to the District Attorney in accordance with the law (see, People v Perez, 65 NY2d 154, 158, supra; People v Rosario, 9 NY2d 286, 289, cert denied 368 US 866). This arbitrary deprivation of an important right related to cross-examination can only impair the truth-seeking process. For that reason, I would hold that the OCME audiotape at issue in this case was Rosario material and that, accordingly, the courts below erred in summarily denying defendant CPL 440.10 relief.

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

Order affirmed.


source: Caselaw Access Project

author: Titone, J.

license: Public Domain

text:
    [654 NE2d 972, 630 NYS2d 698]
    In the Matter of Arthur Auerbach, Respondent, v Board of Education of the City School District of the City of New York et al., Appellants. In the Matter of Edward Aquilone, Respondent, v Board of Education of the City School District of the City of New York et al., Appellants. In the Matter of Patricia Stryker, Respondent, v Board of Education of the City School District of the City of New York et al., Appellants.
    Argued June 6, 1995;
    decided June 29, 1995

      POINTS OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (John Hogrogian and Pamela Seider Dolgow of counsel), for appellants in the first, second and third above-entitled proceedings.
    The Court below erred in granting the petition, in that the Board of Education can properly treat managers and nonmanagers differently as to lump-sum payment for unused sick leave upon retirement. Education Law § 3107 does not support the resolution of this case reached by the Court below. (Matter of Sutka v Conners, 73 NY2d 395; People v White, 73 NY2d 468, 493 US 859; New York State Bankers Assn. v Albright, 38 NY2d 430; Uniformed Firefighters Assn. v Beekman, 52 NY2d 463; People v Ryan, 274 NY 149; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; Sega v State of New York, 60 NY2d 183; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; Matter of New York City Asbestos Litig. [Brooklyn Nav. Shipyard Cases], 82 NY2d 342; Matter of Jose R., 83 NY2d 388.)

      Bruce K. Bryant, Brooklyn, for respondents in the first and second above-entitled proceedings.
    I. The Court below correctly concluded that Education Law § 3107 is not ambiguous and does not exclude managerial employees from its coverage. (Matter of Daniman v Board of Educ., 306 NY 532; Matter of Smathers, 309 NY 487; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; Bender v Jamaica Hosp., 40 NY2d 560; People v Floyd J, 61 NY2d 895; Matter of Kleefeld, 55 NY2d 253; Matter of McLaughlin v Spinnato, 106 AD2d 253.) II. Respondents cannot by regulations exclude managerial Teachers’ Retirement System members from their statutory eligibility for section 3107 retirement leave. (Servomation Corp. v State Tax Commn., 51 NY2d 608; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; Matter of McLaughlin v Spinnato, 106 AD2d 253.)

      Pryor, Cashman, Sherman & Flynn, New York City (Ronald H. Shechtman and Tina C. Kremenezky of counsel), for respondent in the third above-entitled proceeding.
    The Court below correctly ruled that petitioner is entitled to retirement leave under section 3107 based on the term of employment by the Board of Education during which she was a member of the Teachers’ Retirement System. (Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; Bender v Jamaica Hosp., 40 NY2d 560; Sega v State of New York, 60 NY2d 183; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; New York State Bankers Assn. v Albright, 38 NY2d 430; United States v American Trucking Assns., 310 US 534; Uniformed Firefighters Assn. v Beekman, 52 NY2d 463; Archer v Equitable Life Assur. Socy., 218 NY 18.)
   OPINION OF THE COURT

Titone, J.

The question presented by these three appeals is whether Education Law § 3107, which governs the payment of accumulated sick leave upon separation for members of the Teachers’ Retirement System, applies to members holding managerial and nonmanagerial titles alike. We conclude that it does under the statute’s plain language, and affirm.

Respondent Board of Education of the City of New York formerly employed petitioner Arthur Auerbach as Assistant Superintendent, petitioner Edward Aquilone as Executive Director of Personnel and petitioner Patricia Stryker as Director of Legislation. Each petitioner was a member of the Teachers’ Retirement System (TRS), had previously held nonmanagerial and pedagogical positions with respondent, and at the time of retirement held a nonpedagogical managerial title. Upon retirement from service, petitioners respectively applied for retirement leave benefits pursuant to Education Law § 3107, which entitles members of TRS to payment of one half of their accrued but unused sick leave at their current full pay.

Respondent Board of Education notified petitioners that, pursuant to Chancellor’s regulations which were adopted to administer the salary and leave plans for managers, they would be paid for unused sick leave accrued while holding nonmanagerial employment at the salary level of those former titles and they would receive payments for one third of the sick leave accrued while employed as a manager. Additionally, to be eligible for the one-third payment, the regulations require the manager to maintain an accrued balance of at least 60 days. The justification for the less-generous sick leave payments is that managers receive greater remuneration and superior benefits than nonmanagerial employees.

Petitioners Auerbach and Aquilone together, and petitioner Stryker, separately, commenced CPLR article 78 proceedings, seeking a judgment directing that they be granted an increase in the amount of termination pay disbursed for unused sick leave and declaring that respondents’ calculations violated Education Law § 3107. In three separate decisions, Supreme Court dismissed the petitions, concluding that their benefits were properly calculated pursuant to the Chancellor’s regulations and not under the Education Law because they were managerial employees.

The Appellate Division reversed and granted the respective petitions. The Court ruled that Education Law § 3107 is unambiguous as to its application to all members of the New York City Teachers’ Retirement System, and does not exclude members holding managerial positions. The Court rejected respondent School Board’s claim that the statute’s reference to the school calendar to limit the number of accruable sick days created an ambiguity suggesting that only school teachers are eligible for the statute’s benefits and warranting resort to legislative history. Specifically, the Court stated that "[t]he mere fact that a measure was used that was most conveniently applied to the vast majority of members who are teachers hardly renders ambiguous the straightforward language applying the statute to all system members.” (204 AD2d 85, 86.) The Court also noted that even if the legislative history were consulted, nothing therein indicated that managerial employees who are members of TRS are not covered by Education Law § 3107. Two Justices dissented in each proceeding "for the reasons stated by” the respective trial courts. The double dissent on the law forms the predicate for each of these appeals as of right to this Court (see, CPLR 5601 [d]).

Education Law § 3107 provides that "employees of the board of education who are members of the New York city teachers’ retirement system” shall be entitled to at least 10 days of sick leave for personal illness per year which may be accumulated to a maximum of 200 days. The statute then states that "[m]embers shall upon application be granted a retirement leave of absence with full pay consisting of one-half of their accumulated unused sick leave, up to a maximum of one school term or the equivalent number of school days” (id. [emphasis supplied]). It is undisputed here that petitioners are all members of TRS. The sole dispute is whether the statute applies to all members of TRS, or only to nonmanagerial, pedagogical members. Specifically, respondent Board of Educatian argues that the references in the statute to the "school term” and "school days” indicate that the section covers only those members of TRS who work a school calendar, and excludes coverage for managerial employees who work year-round. Alternatively, respondent argues that the use of those terms creates an ambiguity as to eligibility warranting resort to legislative history, and that the legislative history reveals that section 3107 was intended only to apply to classroom teachers. Neither argument withstands scrutiny.

Where the terms of a statute are clear and unambiguous, "the court should construe it so as to give effect to the plain meaning of the words used” (Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205, 208). Resort to legislative history will be countenanced only where the language is ambiguous or where a literal construction would lead to absurd or unreasonable consequences that are contrary to the purpose of the enactment (Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 674-675).

Here, the statute plainly affords sick leave benefits to "members of the New York city teachers’ retirement system.” Those "critical eligibility words * * * are nowhere limited or qualified” (id., at 675). "[Membership [in TRS] shall consist of * * * [a]ll teachers” (Administrative Code of City of NY § 13-503 [1]), and the term "teacher” is broadly defined by regulation to include numerous nonpedagogical, managerial employees — such as superintendents, department heads, and members of the board of examiners — as well as "all regular and special teachers” of the City’s public schools (Administrative Code § 13-501 [7] [a]; see also, Education Law § 3101).

Clearly, the distinction between classroom and nonclassroom teachers that respondent reads into the statute is belied by the statute’s unqualified extension of sick leave benefits to TRS "members.” Importantly, section 3107 contains express language limiting its coverage for members of other pension systems to those who are also "members of the permanent instructional staff” of either the Board of Higher Education or a community college. The absence of an express qualification for members of TRS indicates that the statute does not create a similar distinction between instructional and noninstructional staff for Board of Education employees. Additionally, the statute’s reference to the school term relates solely to accrual limitations and has no relevance to the universe of employees eligible for the benefit. Accordingly, to the extent that the Chancellor’s regulations deviate from section 3107 by reducing the amount of sick leave benefits to be paid to TRS members who hold managerial positions, they contravene a legislative enactment and may not be given effect (Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669, 676, supra).

Even assuming that the references to the school calendar created an ambiguity as to those eligible for section 3107’s sick leave payments upon retirement, resort to the statute’s legislative history does not lead to a different result. Although, as respondent notes, many of the documents contained in the Bill Jacket refer to "teachers” as the target group of the legislation (see, e.g., Sponsor’s Mem, Bill Jacket, L 1960, ch 894), that term is broadly defined in the Education Law and related regulations to include both classroom and managerial personnel of the Board of Education (Education Law § 3101; Administrative Code § 13-501 [7] [a]). Additionally, references to the word teacher may simply reflect the fact that the legislation logically would have its broadest impact on classroom teachers who constitute the majority of TRS’ members. The legislative history’s silence as to the statute’s effect on members of TRS who hold managerial positions, and who apparently constitute the statistical minority in terms of membership, does not indicate an intent to exclude such employees from the statute’s beneficial sweep.

That application of Education Law § 3107 to managerial members of TRS may confer benefits upon some managerial employees but not upon others who are non-TRS members does not support the conclusion urged by respondents that the statute is only meant to cover nonmanagers. The Legislature saw fit to provide a special sick leave benefit for all members of TRS — managers and nonmanagers alike. Thus, any employee — manager or nonmanager — who is not a member of TRS will be excluded from the statute’s beneficial reach. In other words, all TRS members get the "windfall” in the sense that they, unlike nonmembers, receive raises throughout their careers and accumulated sick leave payments based on a higher rate of pay.

Accordingly, in each proceeding, the determination appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

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

In each proceeding, determination appealed from and order of the Appellate Division brought up for review affirmed, with costs.

      Chancellor’s Regulation D-605 provides in relevant part:
      ”9. Sick Leave Allowance
      "a. Sick Leave allowance of one day per month of service shall be credited to full-time annual employees * * *
      "c. The number of sick leave days allowable for lump-sum payment is determined as follows:
      "(1) Vested Days — All employees regardless of length of service may be credited with work one day for each two days of sick leave earned. The amount of vested time on which this benefit is based may not exceed 200 days. Accordingly, the maximum payment possible is 100 days.
      "(2) Days Earned Subsequent to Vesting — Only employees with with more than 10 years of continuous service and a final balance of at least 60 days after vesting may be credited with one work day for each three days earned.
      * * *
      "(14) Lump-Sum Payment on Retirement, Termination or Separation from Employment
      "a. * * * there shall be a lump sum payment which may include annual leave[,] * * * sick leave * * * and overtime * * *. This payment shall not be creditable for purposes of computing the compensation on retirement.
      * * *
      "c. Payments made under this regulation for unused sick leave shall be made in the following manner:
      "(1) For vested sick leave: * * *
      "(b) A submanagerial employee entering a management position after April 1, 1979 shall be compensated at the current minimum rate of pay for the position in which the employee was serving immediately preceding entry in the management position or the rate at which the employee was paid, or the current rate of pay the employee would have been earning in the permanent title held prior to entering the managerial service, whichever is greatest.”


author: Per Curiam.

text:
    [654 NE2d 975, 630 NYS2d 701]
    Joan V. Harris, Appellant, v Paul Hirsh, Respondent.
    Decided July 5, 1995

      POINTS OF COUNSEL

      Graham, Campaign & McCarthy, P. C, New York City (Daniel F. McCarthy, Daniel A. McCarthy, Laurence Gold, Mark D. Schneider and Mitchell M. Kraus of counsel), for appellant.
    I. The decision of the Court below under review, and this Court’s prior decision in this matter, rest on a legal theory subsequently rejected by the United States Supreme Court. (Hawaiian Airlines v Norris, 512 US —, 114 S Ct 2239; Elgin, Joliet & E. Ry. Co. v Burley, 325 US 711.) II. Plaintiff’s claim arises under the tort laws of New York, and is not preempted by Federal labor contract law. (Allis-Chalmers Corp. v Lueck, 471 US 202; Textile Workers v Lincoln Mills, 353 US 448; Teamsters Local v Lucas Flour Co., 369 US 95; Livadas v Aubry, 512 US —, 114 S Ct 2068; Mine Workers v Pennington, 381 US 657; Metropolitan Life Ins. Co. v Massachusetts, 471 US 724; Hirras v National R. R. Passenger Corp., 44 F3d 278; Fox v Parker Hannifin Corp., 914 F2d 795.)

      Proskauer Rose Goetz & Mendelsohn L. L. P., New York City (Charles S. Sims and Jeffrey M. Lubell of counsel), Richard K. Bernard and C. Sue Barnett for respondent.
    I. This Court should adhere to the judgment it previously rendered, as plaintiffs claim is preempted under the Hawaiian Airlines/

      Lueck/Lingle standard. (Hawaiian Airlines v Norris, 512 US —, 114 S Ct 2239; Lingle v Norge Div. of Magic Chef, 486 US 399; Allis-Chalmers Corp. v Lueck, 471 US 202; Melanson v United Air Lines, 931 F2d 558; Beard v Carrollton R. R., 893 F2d 117; Edelman v Western Airlines, 892 F2d 839; Henegar v Banta, 27 F3d 223; Anderson v American Airlines, 2 F3d 590; Davies v American Airlines, 971 F2d 463; O’Brien v Consolidated Rail Corp., 972 F2d 1.) II. In the alternative, the judgment should be affirmed on the ground that there was insufficient evidence of malice for the jury to conclude that the qualified privilege it found applied was defeated by actual malice. (Liberman v Gelstein, 80 NY2d 429.)
   OPINION OF THE COURT

Per Curiam.

On this appeal, we hold that the Railway Labor Act’s (RLA) (45 USC § 151 et seq.) mandatory arbitration provisions for "minor disputes” arising from a collective bargaining agreement do not preempt plaintiffs State-law defamation action. We previously determined that the Appellate Division properly dismissed the defamation action as preempted (see, Harris v Hirsh, 83 NY2d 734 [Harris I]). However, the United States Supreme Court granted plaintiffs petition for a writ of certiorari, vacated the judgment in Harris I, and remanded the case to us for further consideration in light of its subsequent decision in Hawaiian Airlines v Norris (512 US —, 114 S Ct 2239 [1994]). Applying the rule and rationale of Hawaiian Airlines on reargument, we now reverse the Appellate Division order dismissing plaintiffs complaint on preemption grounds, and remit to that Court for a consideration of the arguments it failed to address due to its prior disposition.

Plaintiff Joan Harris was employed by Metro North Commuter Railroad as a crew dispatcher and was a member of a union covered by a collective bargaining agreement (CBA) with Metro North. On July 16, 1986, plaintiffs supervisor, defendant Paul Hirsh, called plaintiff into his office to discuss her work performance. Plaintiff alleges that during that meeting, and in the presence of her two immediate supervisors, defendant asked plaintiff whether she had a problem, and then stated: "You take drugs. I’ve worked in the Towers, and I know a person who is on drugs and you look like one. I’ve been thinking about sending you for a drug test.”

Plaintiff first sought an "unjust treatment” hearing pursuant to rule 52 of the CBA. She then commenced this slander action in State court. Defendant asserted the affirmative defenses that the court lacked subject matter jurisdiction over the suit because it was a "minor dispute” preempted by the RLA, and that his comments were made in the context of a supervisor-employee interview and thus were subject to a qualified privilege. Supreme Court denied defendant’s motion to dismiss on the jurisdictional point. The jury returned a verdict in plaintiff’s favor, finding in a special verdict that defendant (1) committed slander per se, (2) enjoyed a qualified privilege as her supervisor, (3) abused the privilege, and (4) acted with malice when he defamed her. The jury awarded plaintiff $1.2 million in compensatory and punitive damages. Defendant’s motion to set aside the verdict on preemption grounds was denied.

The Appellate Division accepted defendant’s preemption argument, reversed the order denying the motion to set aside the verdict and dismissed the complaint. Because of its disposition, the Court did not address defendant’s additional claims concerning the sufficiency of Harris’ trial proof, the trial court’s evidentiary rulings and the excessiveness of the damages.

This Court affirmed. We broadly defined "minor disputes” preempted by the RLA as those " 'founded upon some incident of the employment relation’ ” (83 NY2d, at 740, quoting Elgin, Joliet & E. Ry. Co. v Burley, 325 US 711, 723 [1945]), or those " 'based on a matrix of facts which are inextricably intertwined with the grievance machinery of the collective bargaining agreement’ ” (id., quoting Magnuson v Burlington N, 576 F 2d 1367, 1369 [9th Cir], cert denied 439 US 930 [1978]). We concluded that "a State defamation action — which typically will not be expressly governed by a specific labor contract term — will be preempted if the disputed statements were made in connection with conduct authorized by the governing collective bargaining agreement and concerned matters related to the employment relationship” (id., at 741 [emphasis added]). We also expressly rejected plaintiff’s claim that the test for preemption applied in the context of the Labor Management Relations Act (LMRA) (29 USC § 185 et seq.) pursuant to Lingle v Norge Div. of Magic Chef (486 US 399 [1988]) governed RLA preemption.

Relying on those principles, we concluded that plaintiff’s slander action was preempted for two primary reasons: (1) at the time of the alleged defamation, plaintiff was being interviewed by her supervisor regarding her possible violation of the Metro North substance abuse policy, which was incorporated into the CBA, rendering the alleged tortious conduct " 'inextricably intertwined’ with a work-related investigation that defendant Hirsh was authorized to undertake by the terms of the CBA” (Harris I, 83 NY2d, at 742, supra [emphasis added]); and (2) adjudication of plaintiff’s State-tort action required "reference to conduct governed by the [CBA] since * * * the jury here was required to specifically determine whether defendant’s conduct was qualifiedly privileged under the labor contract and whether he exceeded the scope of that privilege” (id., at 743 [emphasis added]).

The Supreme Court subsequently decided Hawaiian Airlines v Norris (512 US —, 114 S Ct 2239 [1994], supra), which holds that a State-law action for retaliatory discharge did not involve a "minor dispute” preempted by the RLA because it did not require for its resolution the construction of any CBA terms. Applying the principles enunciated in that case upon this reargument following remand, we now conclude that plaintiff’s defamation action was not preempted by the RLA and reverse the order of the Appellate Division that so holds.

In Hawaiian Airlines, the Supreme Court explained that "minor disputes” preempted by the mandatory grievance-to-arbitration provisions of the RLA are those involving a construction of the "duties and rights created or defined by the collective-bargaining agreement” (512 US, at —, 114 S Ct, at 2247), or those where " 'the dispute may be conclusively resolved by interpreting the existing (CBA)’ ” (id., at —, at 2245, quoting Consolidated Rail Corp. v Railway Labor Executives Assn., 491 US 299, 305 [1989]). Settling an open question, the Supreme Court ruled in Hawaiian Airlines that the LMRA preemption standard adopted in Lingle v Norge Div. of Magic Chef (486 US 399 [1988], supra) governs RLA preemption cases as well (512 US, at —, 114 S Ct, at 2249). Under that test, a State-law cause of action is preempted if it depends upon an interpretation of the CBA for its resolution (Lingle, 486 US, at 405-406). Conversely, if the State-law claim involves rights and obligations of the parties that exist independent of the labor contract, it will not be preempted (id., at 406).

Citing its recent decision in Livadas v Aubry (512 US —, 114 S Ct 2068 [1994]), the Supreme Court made clear in Hawaiian Airlines that the mere need to consult or refer to contract terms during State-court litigation does not render the State-law claim preempted (512 US, at —, n 8, 114 S Ct, at 2248, n 8). Rather, the deciding factor must remain whether " 'the meaning of contract terms is * * * the subject of dispute’ ” (id.).

Thus, the rule derived from Hawaiian Airlines and Livadas is that a State-tort action may not go forward if it is based on a disagreement over the construction of terms contained or defined in the parties’ CBA. That is true because interpretation of contract terms is a role exclusively reserved to the Federal arbitrators under the RLA and tort litigation undertaken to resolve the same question would interfere with the body of law developed by the arbitrators. However, as Lingle instructs, the fact that State-law litigation might involve the same factual considerations involved in the arbitration of a contract dispute does not itself require preemption. When resolution of the tort litigation hinges on "purely factual questions” about the conduct or motives of employers and employees, even if the conduct takes place during contractually authorized grievance procedures, no interpretation of the contract is required, and thus the State litigation may proceed.

Given this recent clarification of the rule to be applied in RLA preemption cases, we cannot adhere to our original conclusion in Harris I that plaintiff’s tort action was preempted because the alleged defamation was "inextricably intertwined” with the grievance process, and because reference to conduct governed by the CBA was required to resolve the litigation. Those standards for determining when a State-law claim is really a disguised "minor dispute” are no longer controlling. The question we now address is whether plaintiff’s State-law defamation claim depends for its resolution on an interpretation or construction of actual terms contained in the CBA. For the following reasons, we answer that question in the negative.

Defendant contends that in order to resolve the litigation, the jury was required to consider the terms of the CBA because the scope of qualified privilege he was entitled to as plaintiff’s supervisor is derived from the contract. However, the scope of any qualified privilege that defendant Hirsh may have enjoyed is defined by State-law precedent (see, Loughry v Lincoln First Bank, 67 NY2d 369, 377). No actual contract terms need to be construed to resolve plaintiffs defamation claim. The CBA did not define the scope of the privilege, nor did it purport to govern defamation claims. Indeed, to the extent that the CBA was relevant and may even have been referred to during the course of the tort litigation, it was considered only because it created the occasion for defendant to exercise his common-law qualified privilege by authorizing him to investigate potential employee substance abuse problems. Simply stated, there was no negotiated contract term for arbitrating defamation claims and neither party claims that the other "negotiated away the state law right” or the privilege defense under the contract — circumstances which might otherwise require contract interpretation to determine the degree of the concession (Livadas, 512 US, at —, 114 S Ct, at 2078, supra).

Moreover, resolution of plaintiffs defamation action involves "purely factual inquiries” into defendant’s motives and conduct to determine if his speech was made with the requisite malice — a determination not requiring any reference to the CBA’s provisions (see, Lingle, at 407, supra). Finally, because no construction of a contract term is required to resolve the slander claim, plaintiffs simultaneous pursuit of a grievance proceeding for breach of the collective bargaining agreement would not have resulted in any conflict between the jury’s conclusion — a factual determination — and a decision of the arbitrators — an interpretation of the contract. Thus, in light of the Supreme Court’s subsequent decision in Hawaiian Airlines, we conclude that plaintiff’s defamation action was not preempted by the RLA. Because the Appellate Division’s prior ruling that the claim was preempted precluded it from addressing defendant’s remaining claims, including the sufficiency of the trial evidence, certain trial rulings and the excessiveness of the damages awarded, a remittal to that court to review those arguments is warranted.

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

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in Per Curiam opinion; Chief Judge Kaye taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), upon reargument, following remand by the Supreme Court of the United States, order reversed, with costs, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.


author: Ciparick, J.

text:
    [654 NE2d 1221, 630 NYS2d 973]
    The People of the State of New York, Respondent, v Manny Vargas, Appellant.
    Argued May 1, 1995;
    decided June 13, 1995

      POINTS OF COUNSEL

      Whiteman Osterman & Hanna, Albany (Philip H Dixon and Alexandra J. Streznewski of counsel), for appellant.
    I. The prosecutor’s summation improperly commented upon a defense witness’s invocation of his Fifth Amendment right against self-incrimination. (People v Pollock, 21 NY2d 206; People v Berg, 59 NY2d 294; Namet v United States, 373 US 179; United States v Maloney, 262 F2d 535; People v Roberts, 70 NY2d 682; Rado v State of Connecticut, 607 F2d 572; People v Burnside, 52 AD2d 626; People v Webb, 68 AD2d 331; People v Billingsley, 74 AD2d 645; People v Ashwal, 39 NY2d 105.) II. The evidence supporting the conviction, which was predominantly circumstantial, was insufficient. (Jackson v Virginia, 443 US 307; People v Contes, 60 NY2d 620; People v Woltering, 275 NY 51; People v Bennett, 49 NY 137; People v Benzinger, 36 NY2d 29; People v Cleague, 22 NY2d 363; People v Donald, 107 AD2d 818; People v Shilitano, 218 NY 161; People v Kennedy, 47 NY2d 196.) III. The prosecution improperly vouched for the credibility of its witness. IV. The court failed to respond adequately to the jury’s requests during its deliberations. (People v Malloy, 55 NY2d 296, 459 US 847; People v Gonzalez, 293 NY 259; People v Lorenz, 16 AD2d 135; People v Lourido, 70 NY2d 428; People v Gadson, 161 AD2d 795.)

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Danna Robbins, Roseann B. MacKechnie and Jane S. Meyers of counsel), for respondent.
    I. Defendant failed to preserve his claims regarding the prosecutor’s examination of Anthony Arlequín and regarding the prosecutor’s references in summation to the witness’s invocation of his Fifth Amendment privilege against self-incrimination. In any event, there was no prosecutorial impropriety in the examination. Moreover, any error was harmless in light of the court’s curative instructions and the overwhelming evidence of defendant’s guilt. (People v Fleming, 70 NY2d 947; People v Williams, 70 NY2d 946; People v Balls, 69 NY2d 641; People v Oliver, 63 NY2d 973; People v Love, 57 NY2d 1023; People v Nuccie, 57 NY2d 818; People v Cruz, 59 NY2d 984; People v De Renzzio, 19 NY2d 45; People v Ford, 62 NY2d 275; People v Medina, 53 NY2d 951.) II. Defendant’s claim of legal insufficiency is unpreserved. In any event, the People proved beyond a reasonable doubt defendant’s guilt of murder in the second degree. (People v Bynum, 70 NY2d 858; People v Bleakley, 69 NY2d 490; People v Betancourt, 68 NY2d 707; People v Kennedy, 47 NY2d 196; People v Contes, 60 NY2d 620; Jackson v Virginia, 443 US 307.) III. Defendant failed to preserve his claim that the prosecutor improperly vouched for the credibility of a prosecution witness. In any event, the prosecutor’s remarks were fair comment. (People v Fleming, 70 NY2d 947; People v Balls, 69 NY2d 641; People v Medina, 53 NY2d 951; People v Dawson, 50 NY2d 311; People v Ashwal, 39 NY2d 105; People v Smith, 82 NY2d 731; People v Anthony, 24 NY2d 696; People v Galloway, 54 NY2d 396; People v Crimmins, 36 NY2d 230.) IV. Defendant’s claims that the court failed to respond meaningfully to the jury’s requests are unpreserved and without merit. (People v Whalen, 59 NY2d 273; People v Malloy, 55 NY2d 296, 459 US 847; People v Lourido, 70 NY2d 428; People v Almodovar, 62 NY2d 126.)
   OPINION OF THE COURT

Ciparick, J.

When the People question a witness knowing the witness will respond by invoking the Fifth Amendment, and then compound the prejudice to defendant by expressing in closing argument that the witness’s claim of the testimonial privilege was evidence of defendant’s guilt, defendant is deprived of a fair trial. Therefore, we hold that reversible error was committed in this case and defendant is entitled to a new trial.

On April 9, 1987, Lourdes Caban was murdered in her car while it was parked on Avenue Z and West 15th Street in Brooklyn. School books found in the car led the police to Anthony Arlequín, a cousin of defendant. On April 10, 1987, the police detective assigned to the case located Arlequín at FDR High School in Borough Park, Brooklyn, where he was briefly questioned. Arlequín then accompanied the detective to the 60th Precinct. After several hours of questioning, Arlequín admitted that he was with Caban in her car hours before her death, and implicated defendant in the murder. Arlequín was then brought to the 84th Precinct where he repeated his statement to an Assistant District Attorney, who preserved the statement on audiotape. This statement, together with an incriminating remark defendant purportedly made to a friend and an eyewitness’s description of a beige Chevrolet Impala fleeing the crime scene, which the police found parked near defendant’s home after the murder, resulted in defendant’s arrest and indictment for murder in the second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the second degree (Penal Law § 265.03). On the fourth day of defendant’s trial, Arlequín was called as a witness by the People. Outside the presence of the jury, Arlequín advised the court that he wanted an attorney because his April 10, 1987 statement was a lie. The court appointed counsel for Arlequín, and, after a recess, he proceeded to testify outside the presence of the jury, with his attorney by his side.

In his testimony, Arlequín identified defendant as his first cousin, described the car defendant drove as a beige Chevrolet, stated that Caban called him requesting to see him on April 9, 1987 and that she picked him up from work that day in her car. Arlequin’s testimony is otherwise nonsubstantive, marked by the frequent assertion of his Fifth Amendment privilege in response to the questions posed by the prosecutor. Arlequín invoked his Fifth Amendment privilege in response to the prosecutor’s questions regarding his previous statement, including whether he remembered telling the detective on April 10, 1987 that defendant told him to tell the police he had not seen defendant for two years, to deny that he saw defendant on the night of the crime, and not relate that defendant told him he killed Caban because he promised himself he would kill her. Further, Arlequín declined on Fifth Amendment grounds to indicate whether he saw or spoke with defendant on the night of the murder; whether he had planned to meet Caban on the night she was murdered; whether he spoke with defendant after the murder; whether he saw Caban and defendant together on the night of the crime; and, whether he remembered if defendant was driving the beige Chevrolet on the night of the crime. At the conclusion of this testimony by Arlequín, the court advised counsel that if the People wished to call him as a witness, Arlequín could be questioned on those matters he answered but not on the matters for which he invoked the Fifth Amendment.

Two days later, the People called Arlequín as a witness. After the prosecutor established Arlequin’s familial relationship with defendant and that he knew Caban as his cousin’s girlfriend, the majority of questions posed by the prosecutor concerned the same matters, in even greater detail, that the witness previously refused to answer outside the presence of the jury. Consequently, Arlequín asserted his testimonial privilege on the ground he would incriminate himself. At the conclusion of Arlequin’s testimony, defendant’s counsel requested that the jury be instructed that the witness has a constitutional right to assert the Fifth Amendment and no inference — favorable or not — should be drawn, and that Arlequin’s testimony be stricken. The court stated it would charge the jury with regard to the witness’s Fifth Amendment right but would not strike his testimony.

During her summation, the prosecutor suggested that Arlequín "had a hand in [the crime],” that the evidence revealed a set-up on a lovers’ lane and "that’s why you saw what [he] did on the witness stand.” The prosecutor related that Arlequín drove Caban to the designated spot and then traded cars with defendant, who got out of his car and into Caban’s, leaving Arlequín free to whisk defendant away from the scene. The prosecutor portrayed a hurried getaway to explain the presence of Arlequin’s abandoned school books in Caban’s car. Referring to Arlequin’s conversation with the police the next day at his high school, the prosecutor pointed to his refusal to discuss this in court because "he knows more than he wants to say * * * he is covering for this defendant, for this defendant, his cousin. He knows what happened and he won’t tell us * * * we know from the evidence he was there * * * if somebody else killed a wife of his cousin[,] brutally executed her, why wouldn’t he say who it is * * * The only reason he is not telling us is because he is protecting [his cousin].” Defense counsel interposed objections during these comments, which the court overruled, stating that the jury may consider the evidence it has heard.

The prosecutor continued in this vein, advising the jury that the inference to be drawn is that Arlequín knows his cousin killed Caban, and that is why he would not testify about the events of April 9, 1987. According to the prosecutor, Arlequín had a motive to lie based on his relationship with defendant, and did not "want to * * * pin [the murder] on his cousin.” The prosecutor urged the jury to look at Arlequin’s courtroom conduct, insisting "[h]e didn’t answer any of my questions. You saw he wasn’t cooperative with me. * * * [H]e is protecting his cousin.” The court again overruled defense counsel’s objection. The People now concede that these repeated summation references to Arlequin’s invocation of the Fifth Amendment were improper.

At the conclusion of the summations, the court instructed the jury that a witness has a constitutional right to exercise the Fifth Amendment privilege by declining to answer questions on the ground that the answer may be incriminating to the witness, and that the jury should not speculate regarding what the witness’s answers may have been or consider the witness’s refusal to answer as favorable or unfavorable to either party. Defense counsel had requested a stronger charge, one directing the jury not to draw an unfavorable inference against defendant, which the trial court rejected. The court additionally instructed the jurors that they may consider and weigh Arlequin’s testimony but that they must strike those questions for which he invoked his constitutional right not to answer.

The jury found defendant guilty of murder in the second degree and criminal possession of a weapon in the second degree. Defendant was sentenced to concurrent terms of 25 years to life on the murder count and 5 to 15 years on the weapons possession count. Defendant appealed, arguing that the prosecutor committed reversible error when she unfairly buttressed the People’s case by discrediting Arlequín based on his assertion of the Fifth Amendment and by using his assertion of the privilege in a manner that prejudiced defendant’s case. Noting that it was improper for the prosecutor to argue that Arlequín invoked his Fifth Amendment right in order to protect defendant, the Appellate Division nevertheless found this error harmless in the face of the court’s charge that the witness’s refusal to answer on the ground he may incriminate himself could not be considered in assessing defendant’s guilt (see, People v Vargas, 199 AD2d 291). Thus, the Appellate Division affirmed the judgment (see, id,.). A Judge of this Court granted leave, and we now reverse.

The Fifth Amendment of the US Constitution commands that no person shall be compelled in any criminal case to be a witness against himself. Where, as here, a witness asserts his Fifth Amendment privilege in the presence of the jury, the effect of the powerful but improper inference of what the witness might have said absent the claim of privilege can neither be quantified nor tested by cross-examination, imperiling the defendant’s right to a fair trial (see, People v Pollock, 21 NY2d 206, 212; United States v Maloney, 262 F2d 535, 537-538; Namet v United States, 373 US 179,185-186).

We have recognized that when the prosecution deliberately calls a witness solely to elicit a claim of privilege, calling that witness constitutes prejudicial error, mandating reversal (see, People v Pollock, 21 NY2d 206, 212-213, supra; see also, People v Berg, 59 NY2d 294, 298-299). The Supreme Court has ruled that a witness’s invocation of the Fifth Amendment privilege may amount to reversible error in two instances: one, when the prosecution attempts to build its case on inferences drawn from the witness’s assertion of the privilege, and two, when the inferences unfairly prejudice defendant by adding "critical weight” to the prosecution’s case in a form not subject to cross-examination (see, Namet v United States, 373 US, at 186-187, supra; see also, United States v Maloney, 262 F2d 535, supra). In Namet, the Supreme Court concluded that the witnesses’ claims of testimonial privilege were "at most cumulative support for an inference already well established by the nonprivileged portion of the [witnesses’] testimony” (Namet v United States, 373 US, at 189, supra). The Supreme Court stated that the witnesses’ own testimony regarding the illegal gambling operation and their association with Namet created a "natural and completely permissible inference” that Namet’s visits to the witnesses’ business premises concerned the illegal gambling activities (see, id., at 189). Further, the Supreme Court reasoned that the effect of the witnesses’ assertion of the Fifth Amendment was minimized by their "lengthy nonprivileged testimony,” defense counsel’s failure to object to the prosecution’s line of questioning, and the fact that the Government did not capitalize on the witnesses’ invocation of the Fifth Amendment (see, id., at 189).

Namet established the framework for courts to evaluate a challenge by a defendant regarding the prosecution’s handling of the testimony of a witness who pleads the Fifth Amendment at trial. Essentially, this entails a determination of whether the probative value of the testimony of the witness who invoked the Fifth Amendment privilege in the presence of the jury outweighs any prejudice to the defendant. Important considerations which factor into this analysis include the prosecutor’s conduct and intent in calling the witness, the number of questions asked, their significance to the State’s case, whether the prosecutor draws any inference in closing arguments from the witness’s assertion of the privilege and refusal to answer, the witness’s relationship to defendant, and the jury instructions (see, People v Berg, 59 NY2d, at 298, supra; People v Pollock, 21 NY2d, at 212-213, supra).

Applying these factors to the instant case compels the conclusion that the prejudicial effect of Arlequin’s testimony to defendant outweighed the negligible relevant information he provided, and that no curative instruction could temper the impression created by his repeated invocation of the Fifth Amendment in response to the prosecutor’s pointed questions. Only days before Arlequín was called to testify, the prosecutor received a clear indication of what he would not discuss based on his fear of self-incrimination. Moreover, the court directed the prosecutor upon conclusion of the nonjury appearance that she not question him on those matters for which he invoked the privilege "unless there [was] some compelling reason for it.” Nevertheless, during her questioning of Arlequín, the prosecutor posed many of the same questions she knew he would decline to answer, at times elaborating on details she did not even raise when he was questioned outside the presence of the jury, notwithstanding defense counsel’s objections.

Implicit in the prosecutor’s numerous closing argument references to Arlequin’s assertion of his Fifth Amendment privilege is the impermissible inference that Arlequín refused to answer to avoid identifying his cousin as Caban’s murderer. The witness’s nonresponsive testimony was critical to the prosecution’s case as demonstrated by the prosecutor’s portrayal, during her summation, of Arlequin’s desire to protect his cousin by not revealing the scope of his involvement and knowledge of the events of April 9, 1987. Without question, this witness’s refusal to answer and invocation of his Fifth Amendment privilege 48 times before the jury, can readily be construed as the chief source of the inference that this witness knew defendant committed the crime based on his own connection to the crime scene and his relationship with defendant (see, Namet v United States, 373 US, at 189, supra). It was impossible for defendant to dispel this inference on cross-examination nor was the court’s instruction capable of mitigating the damaging impact of the incriminating questions. As noted, supra, the People have conceded that the closing argument references to Arlequin’s testimonial privilege were improper.

Given the conceded absence of any direct evidence linking defendant to the murder, the tendency to draw the unfavorable inference against defendant is irresistible. In this circumstance, the witness’s nonresponsive testimony invited the inference of defendant’s guilt, negating the Appellate Division’s conclusion, and the People’s argument on this appeal, that the limiting instruction given in the court’s charge rendered any prejudice harmless. Defendant was irreparably prejudiced when the prosecutor purposely called a witness knowing full well that the witness would invoke the Fifth Amendment and then seized on the witness’s silence in summation to bolster the People’s case against defendant (see, People v Russ, 79 NY2d 173, 178; People v Roberts, 70 NY2d 682, 683; People v Brosnan, 32 NY2d 254, 262).

The People cannot justify the approach employed in this case on the ground that defendant might have been entitled to a missing witness charge if Arlequín did not testify. The People contend that Arlequín was the only person who knew where Caban was in the hours immediately preceding her death, and could provide a narrative of the events before and after the murder. Arlequin’s testimony added the "critical weight” to the prosecution’s case in a form not subject to cross-examination by defendant, which is recognized as the hallmark of reversible error (see, Namet v United States, 373 US, at 187, supra; United States v Maloney, 262 F2d, at 536-537, supra; see also, People v Pollock, 21 NY2d, at 213, supra). Indeed, given the prosecutor’s awareness of Arlequin’s intention to invoke the Fifth Amendment, her repeated violations of the trial court’s order not to question him on such matters and her summation references to his invocations of his Fifth Amendment right constituted an attempt to build the People’s case on the improper inferences that could be drawn from his use of the testimonial privilege (see, United States v Maloney, 262 F2d, at 537, supra; cf., People v Berg, 59 NY2d, at 299, supra). This denied defendant a fair trial, and he is therefore entitled to a new trial. In view of this, we need not reach defendant’s remaining contentions.

Accordingly, the order of the Appellate Division should be reversed, and a new trial ordered.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa and Smith concur; Judge Levine taking no part.

Order reversed, etc.

      . Douglas v Alabama (380 US 415, 419-420) made the Namet rubric applicable to the States.

      . See also, Douglas v Alabama (380 US 415, 419-420, supra [prosecutor’s conduct; curative jury instruction; witness’s invocation of Fifth Amendment may implicate defendant’s Sixth Amendment right to confront adverse witness]); Namet v United States (373 US, at 184, supra [number of questions asked]); United States v Coppola (479 F2d 1153, 1160 [improper reference in closing argument]); United States v Vandetti (623 F2d 1144, 1145 [relationship between defendant and witness claiming privilege]); Bowles v United States (439 F2d 536, cert denied 401 US 995 [jury instructed not to rely on any inferences it may draw from witness’s reliance on Fifth Amendment]); Rodo v State of Connecticut (607 F2d 572, 581, cert denied 447 US 920).


author: Levine, J. Ciparick, J.

text:
    [654 NE2d 1226, 630 NYS2d 978]
    In the Matter of Robert L. Schulz et al., Appellants, et al., Petitioners, v State of New York et al., Respondents.
    Argued April 26, 1995;
    decided June 14, 1995

      POINTS OF COUNSEL

      Robert L. Schulz, Glens Falls, Nicholas J. Selvaggio, East Northport, Gaetano V. Cruciani, Commack, and Salvatore J. Grenci, West Islip, appellants pro se.

    I. In violation of article VII, § 8 and article VIII, § 1 of the New York Constitution, a high ranking employee of the State Education Department and the Commack Board of Education used State and local funds to sway the results of a referendum vote. (Matter of Phillips v Maurer, 67 NY2d 672; Stern v Kramarsky, 84 Misc 2d 447.) II. The Court below misconstrued the New York Constitution, particularly article VI, § 7 (a) and § 3 (b) (8). (Matter of O’Connor v Emerson, 196 App Div 807, 232 NY 561; People ex rel. Board of Educ. v Finley, 211 NY 51; Barone v Aetna Life Ins. Co., 260 NY 410; Finley v Spaulding, 274 App Div 522; Matter of Markert v Wilson, 284 App Div 1086; Summerville v Roosevelt Union Free School Dist., 128 AD2d 769; Guariglia v De Furio, 34 Misc 2d 200; Matter of White v Board of Educ., 53 Misc 2d 800; Matter of Duke & Benedict v Board of Educ., 81 Misc 2d 1043; Marasse v Buchmueller, 35 Misc 2d 643.) III. The dispute over the use of public funds to sway the results of the referendum vote in Commack is not included in the classes of disputes covered by Education Law § 2037. (Matter of Rynsky v Kantro, 57 Misc 2d 924; Matter of Vecchio v New York State Dept. of Educ., 189 AD2d 961, 81 NY2d 709; Summerville v Roosevelt Union Free School Dist., 128 AD2d 769; Finley v Spaulding, 274 App Div 522; Matter of Phillips v Maurer, 67 NY2d 672.) IV. Plaintiffs are entitled to a declaration of their rights regarding the State’s responsibility for the review and approval for constitutionality of official literature related to district elections. V. In violation of article VII, § 8 of the New York Constitution, Governor Cuomo and his Commissioner used State funds to publish and mail a newsletter, in aid of a private undertaking. (People v Ohrenstein, 77 NY2d 38; Stern v Kramarsky, 84 Misc 2d 447; Matter of Phillips v Maurer, 67 NY2d 672; People v Westchester

      County Natl. Bank, 231 NY 465; Hoellen v Annunzio, 468 F2d 522.) VI. Respondents have violated appellants’ civil right against a taking of their (money) property without (constitutional) due process.

      Dennis C. Vacco, Attorney-General, Albany (Peter G. Crary, Victoria A. Graffeo and Peter H. Schiff of counsel), for State of New York and others, respondents.
    I. The courts below properly dismissed plaintiffs’ third cause of action because Supreme Court lacks subject matter jurisdiction; moreover, mandamus will not lie to compel the State Education Department to exercise its general management authority over public education in a particular manner. (Finley v Spaulding, 274 App Div 522; Matter of Markert v Wilson, 284 App Div 1086; Matter of Rynsky v Kantro, 57 Misc 2d 924; Matter of White v Board of Educ., 53 Misc 2d 800, 28 AD2d 828; Guariglia v De Furio, 34 Misc 2d 200, 17 AD2d 905; Summerville v Roosevelt Union Free School Dist., 128 AD2d 769; Matter of Phillips v Maurer, 67 NY2d 672; Matter of Pacos v Hunter, 29 Misc 2d 404, 14 AD2d 990, 11 NY2d 1112; Matter of Vecchio v New York State Dept. of Educ., 189 AD2d 961, 81 NY2d 709; Matter of Boyes v Allen, 32 AD2d 990, 26 NY2d 709.) II. Publication of the newsletter, "The Voice of the New, New York” was a proper exercise of the Governor’s public duty to inform and educate the electorate on issues of public concern. (Matter of Phillips v Maurer, 67 NY2d 672; People v Ohrenstein, 77 NY2d 38; Matter of Schulz v State of New York, 148 Misc 2d 677, 175 AD2d 356, 78 NY2d 862; Stern v Kramarsky, 84 Misc 2d 447; Clark v Cuomo, 66 NY2d 185.) III. The October 13, 1992 order restraining the Commack bond referendum constituted a preliminary injunction, appealable as of right under CPLR 5701. (Matter of John P. v Axelrod, 65 NY2d 863; DiFate v Scher, 45 AD2d 1002; Matter of Pikus v Dudley, 90 AD2d 700; Matter of Willoughby Nursing Home v Axelrod, 113 AD2d 617.)

      Cahn Wishod & Lamb, Melville (Richard C. Cahn of counsel), for Commack Board of Education, respondent.
    I. Because the construction of the State or Federal Constitution is not directly involved, the appeal must be dismissed. (Murphy v Erie County, 28 NY2d 80; Tribeca Community Assn. v New York State Urban Dev. Corp., 200 AD2d 536, 83 NY2d 905; Matter of Abrams v Public Serv. Commn., 95 AD2d 906, 60 NY2d 557; Board of Regents v Roth, 408 US 564; Walentas v Upper, 862 F2d 414; Matter of Dunne v Harnett, 92 Misc 2d 48; United States v SCRAP, 412 US 669.) II. If the appeal is not dismissed, the order should be affirmed because Supreme Court lacked subject matter jurisdiction. (Finley v Spaulding, 274 App Div 522; Matter of Markert v Wilson, 284 App Div 1086; Summerville v Roosevelt Union Free School Dist., 128 AD2d 769; Guariglia v De Furio, 34 Misc 2d 200; Matter of White v Board of Educ., 53 Misc 2d 800; Matter of Duke & Benedict v Board of Educ., 81 Misc 2d 1043; Marasse v Buchmueller, 35 Misc 2d 643.) III. If the Court finds subject matter jurisdiction, the Court below’s 1993 order should be affirmed on the ground that the October 13, 1992 order of Special Term, Albany County, was an appealable preliminary injunction order and not a temporary restraining order. (Di-Fate v Scher, 45 AD2d 1002; Matter of Pikus v Dudley, 90 AD2d 700.) IV. If the Court finds subject matter jurisdiction in the courts, the 1993 order should be affirmed on the additional ground that Supreme Court’s October 13, 1992 order was an abuse of discretion and was properly reversed. (Matter of Phillips v Maurer, 67 NY2d 672; Matter of Boyes v Allen, 32 AD2d 990, 26 NY2d 709; Crane v New York City Council 66, 101 AD2d 682; Matter of Schulz v State of New York, 175 AD2d 356; Oppenheimer v Oscar Shoes, 111 AD2d 28; Gompers v Buck’s Stove & Range Co., 221 US 418; State Univ. v Denton, 35 AD2d 176.)
   OPINION OF THE COURT

Levine, J.

Plaintiffs in this citizen-taxpayer action appeal as of right pursuant to CPLR 5601 (b) from so much of an order of the Appellate Division (205 AD2d 912) which affirmed the dismissal of their third, sixth and eighth causes of action in their complaint-petition (hereinafter the complaint). The complaint, dismissed in its entirety by Supreme Court, set forth eight separate, factually unrelated causes of action having in common only that all alleged that various actions by State and local governmental officials constituted the use of public funds for private purposes in violation of article VII, § 8 (1) and article VIII, § 1 of the New York Constitution.

Plaintiffs also seek to bring up for review pursuant to CPLR 5501 (a) (1) a prior nonfinal order of the Appellate Division (198 AD2d 624) which reversed Supreme Court’s order referring to a Referee plaintiffs’ motion to hold defendant Corn-mack Board of Education in contempt for proceeding with a scheduled school board referendum in violation of that court’s order temporarily staying the board from conducting the referendum.

Plaintiffs’ third cause of action alleged that the Commack Board of Education, using public funds, had prepared and distributed false promotional materials in favor of an affirmative vote on an $11.7 million bond proposition scheduled for a public referendum on October 14, 1992. Plaintiffs sought injunctive relief against holding that referendum and a declaratory judgment that the defendant State Department of Education must review in advance and approve all election literature prepared by any school district. One day before the referendum was to take place, Supreme Court granted an order staying the Commack Board of Education from holding the scheduled referendum before October 16, the return date of the show cause application for injunctive relief. The school board filed a notice of appeal from the court’s October 13 order and held the referendum as scheduled. As previously noted, the Appellate Division reversed Supreme Court’s order directing a reference on plaintiffs’ motion to hold the school board in contempt for violation of the order staying the referendum, and dismissed plaintiffs’ contempt application.

Plaintiffs’ sixth cause of action was targeted against defendant Mario M. Cuomo, then Governor, defendant Vincent Tese, then Commissioner of Economic Development, defendant State Democratic Committee and the Governor’s campaign committee, known as The Friends of Mario M. Cuomo Committee, Inc. That cause of action alleged that the publication and July 1992 mailing of a newsletter entitled, "The Voice of the New, New York” by the Governor’s Office of Economic Development constituted the use of State moneys to serve the private political purposes of the Governor, his campaign committee and the State Democratic Committee, in violation of article VII, § 8 (1) of the New York Constitution.

Plaintiff’s eighth cause of action alleged that the unconstitutional uses of public funds as set forth elsewhere in the complaint violated their rights under the Fifth and Fourteenth Amendments of the United States Constitution as a taking of their property without due process of law.

We modify by reversing the dismissal of plaintiff’s sixth cause of action, reinstating that claim, and otherwise affirm.

I.

The Appellate Division properly affirmed the dismissal of plaintiffs’ third cause of action. In that cause of action, plaintiffs sought to enjoin or invalidate the results of the Commack School District’s bond referendum held October 14, 1992 because of the alleged distribution at public expense of partisan and false promotional literature regarding that referendum by the Commack Board of Education. The Appellate Division and Supreme Court correctly concluded that, under Education Law § 2037, exclusive original jurisdiction to determine that claim resided in the State Commissioner of Education. Section 2037 states unequivocally that r[a]ll disputes concerning the validity of any district * * * election * * * shall be referred to the commissioner of education for determination * * *. The commissioner may in his [or her] discretion order a new * * * election” (emphasis supplied).

The courts have long interpreted Education Law § 2037 and its predecessor statute as conferring exclusive original jurisdiction upon the Commissioner of Education regarding all disputes over the validity of school district meetings and elections (see, Finley v Spaulding, 274 App Div 522, 526; Matter of Markert v Wilson, 284 App Div 1086, 1087; see also, Summerville v Roosevelt Union Free School Dist. 128 AD2d 769). The advantage of this course chosen by the Legislature is to provide an expeditious and more uniform resolution of these kinds of disputes (Finley v Spaulding, 274 App Div, at 526, supra; Matter of Pacos v Hunter, 29 Misc 2d 404, 405 [Jasen, J.], affd 14 AD2d 990, appeal dismissed 11 NY2d 1112). The Commissioner of Education has exercised jurisdiction under section 2037 to hear complaints similar to that of plaintiffs here, that a school board has unlawfully used taxpayers’ funds to promote a position in a district election (see, Matter of Chaplin [Newfane Cent. School Dist.], 29 Ed Dept Rep 388 [No. 12,329]; Matter of Weaver [Pine Plains Cent. School Dist.] 28 Ed Dept Rep 183 [No. 12,076]). Moreover, the Commissioner of Education could have granted the stay plaintiffs sought here from Supreme Court had they addressed their complaint to the Commissioner in the first instance (see, 8 NYCRR 276.1).

Contrary to plaintiffs’ contention, judicial review of any unfavorable decision by the Commissioner of Education regarding a complaint made pursuant to Education Law § 2037 would have been available and could have fully addressed their claim that false and partisan promotional materials were disseminated at school district expense (see, Matter of Phillips v Maurer, 67 NY2d 672; Matter of Capobianco v Ambach, 112 AD2d 640).

That plaintiffs’ complaint regarding the school board’s distribution of the allegedly tainted materials was couched in terms of a constitutional violation did not obviate the statutory mandate to originate the matter before the Commissioner of Education. A constitutional claim that may require the resolution of factual issues reviewable at the administrative level should initially be addressed to the administrative agency having responsibility so that the necessary factual record can be established (see, Matter of Roberts v Coughlin, 165 AD2d 964, 965-966; Matter of Fichera v City of New York, 145 AD2d 482, 484; Matter of Dozier v New York City, 130 AD2d 128, 134-135). Moreover, merely asserting a constitutional violation will not excuse a litigant from first pursuing administrative remedies that can provide the requested relief (see, id.; accord, Matter of Patterson v Smith, 53 NY2d 98, 103-104 [merits of petitioner’s due process claim not addressed because he failed to exhaust his administrative remedies]). Thus, plaintiffs’ third cause of action was properly dismissed for lack of subject matter jurisdiction.

The Appellate Division also quite correctly reversed Supreme Court’s order of reference on plaintiffs’ motion to hold the Commack Board of Education in criminal contempt, and then denied their motion. As previously explained, under clear and long-established precedent, as well as unambiguous statutory language, Supreme Court lacked original subject matter jurisdiction over plaintiffs’ third cause of action. Hence, Supreme Court also was without jurisdiction to entertain and then grant the provisional remedy plaintiffs sought in connection with that cause of action, that is, an order temporarily staying the referendum scheduled for October 14, 1992. Under those circumstances, the order staying the referendum was so manifestly lacking in validity that its disobedience cannot be punished as a contempt (Matter of Fish v Horn, 14 NY2d 905, 906; People ex rel. Lower v Donovan, 135 NY 76, 79; DiFate v Scher, 45 AD2d 1002, 1003).

II.

Plaintiffs’ eighth cause of action must also fail. Plaintiffs have not alleged any actual appropriation of their individual property by the governmental action they describe, or even an indirect invasion of their specific property rights through regulation of the use thereof (cf., Lucas v South Carolina Coastal Council, 505 US 1003). They merely alleged that governmental revenues, concededly acquired lawfully through State or local tax levies, have been misused or misapplied to private purposes. Plaintiffs, thus, have not validly alleged any violation of the Due Process or "Takings” Clauses of the Federal Constitution (US Const 5th, 14th Amends).

III.

We, however, reach a contrary conclusion regarding dismissal of plaintiffs’ sixth cause of action. In that cause of action, plaintiffs alleged that in July 1992 the State Office of Economic Development, at the direction of Governor Cuomo and Commissioner Tese, printed and distributed by United States mail at State expense "The Voice of the New, New York” newsletter "to serve the individual and private purposes of Governor Cuomo, the New York Democratic State Committee and Mario Cuomo’s campaign committee known as Friends of Mario M. Cuomo Committee, Inc.” (complaint 1Í 166). They allege that such use of public funds for the partisan political purposes of and advantages to those defendants violated article VII, § 8 (1) of the New York Constitution. That provision, as relied upon by plaintiffs, reads as follows:

"1. The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking.”

We have previously described the history and purposes underlying the adoption of article VII, § 8 (see, Wein v State of New York, 39 NY2d 136, 142-144; see also, People v Ohrenstein, 77 NY2d 38, 50-51). The prohibition against gifts or loans to private enterprises was first incorporated into the Constitution in 1846, in reaction to the prior practices of subsidizing private railroad and canal companies through long-term State debt obligations, which the State ultimately was forced to pay when many of those private enterprises failed during the depression of 1837-1842 (Wein v State of New York, supra, at 143-144). Thus, subsidization by gifts of public funds to private undertakings, or by pledging public credit on their behalf, was banned, irrespective of how beneficent or desirable to the public the subsidized activity might seem to be (see, People v Ohrenstein, 77 NY2d, at 51, supra; People v Westchester County Natl. Bank, 231 NY 465, 475 [invalidating issuance of State bonds to fund veterans’ bonuses]). And this remains so even when the subsidized private organization performs functions beneficial to the public (see, Fox v Mohawk & Hudson Riv. Humane Socy., 165 NY 517 [invalidating law making dog license fees payable to humane society]).

We think it is unassailable that the use of public funds out of a State agency’s appropriation to pay for the production and distribution of campaign materials for a political party or a political candidate or partisan cause in any election would fall squarely within the prohibition of article VII, § 8 (1) of the Constitution. Manifestly, using public moneys for those purposes would constitute a subsidization of a nongovernmental entity — a political party, candidate or political cause advanced by some nongovernmental group. Contrastingly, a governmental agency does not violate article VII, § 8 (1) merely by using taxpayers’ funds for the valid governmental purpose of encouraging the public to participate in the democratic process by voting in an election. Nor would that constitutional provision prevent the use of public funds to inform and educate the public, in a reasonably neutral fashion, on the issues in an election so that voters will more knowledgeably exercise their franchise.

In Matter of Phillips v Maurer (67 NY2d 672, supra), we made the foregoing distinctions between a local school board’s legitimate right to disseminate at public expense informational materials regarding its proposed budget preliminarily to the vote of the electorate on its approval, and the board’s lack of authority "to disseminate information, at the taxpayers’ expense, patently designed to exhort the electorate to cast their ballots in support of a particular position advocated by the board” (id., at 674).

It is true that in Phillips v Maurer (supra), the line between the use of public funds to inform voters and their use to promote an outcome of an election was drawn as a matter of statutory construction of a school board’s powers under the Education Law (see, Education Law § 1709 [33]; § 1716). Nonetheless, in that case we cited with approval two authorities making the same distinction as a constitutional imperative under article VII, § 8 (1) — Stern v Kramarsky (84 Misc 2d 447) and 1980 Opinions of the State Comptroller No. 80-411. In the Phillips v Maurer decision we quoted the constitutional standard articulated in Stern v Kramarsky for permissible election activities and dissemination of election literature at public expense: " '[t]o educate, to inform, to advocate or to promote voting on any issue may be undertaken, provided it is not to persuade nor to convey favoritism, partisanship, partiality, approval or disapproval by a State agency of any issue, worthy as it may be’ (Stern v Kramarsky, 84 Mise 2d 447, 452; * * *)” (67 NY2d, at 674). We are satisfied that the guidelines set forth in Phillips v Maurer express the constitutional line of demarcation under article VII, § 8 (1).

Applying the foregoing standard to "The Voice of the New, New York” newsletter, we conclude that the document transgresses the constitutional boundary. It was disseminated on the eve of the Presidential campaign of 1992. Its subject matter covered one of the issues already then of primary interest in that campaign — welfare reform. Although the newsletter contained a substantial amount of factual information which would have been of assistance to the electorate in making an educated decision on whose position to support on that issue, the paper undisputably " 'convey[ed] * * * partisanship, partiality * * * [and] disapproval by a State agency of [an] issue’ ” (Matter of Phillips v Maurer, supra, at 674 [quoting Stern v Kramarsky, supra, at 452]). Thus, the newsletter states:

"Led by the Bush Administration, Republicans in New York and across the nation are seeking to slash assistance to the needy.
"The Republicans appear to have devised a strategy of using distortions and half-truths about Medicaid and welfare to divide the people in a key election year.”

The newsletter also reported the Governor’s criticism of "President Bush and the Republicans for using welfare as the 'Willie Horton issue of the 1992 campaign’ ”.

While "The Voice of the New, New York” did properly urge the public to vote and to "[s]tudy the candidates”, it also sought to enlist the public’s support in opposition to the alleged Republican position on the welfare and Medicaid reform issues. Thus, the newsletter urged: "[y]ou can also write at any time to your local representatives. Tell them that welfare and Medicaid is a lifeline during troubled times, and that they shouldn’t pull in the lifeline while so many people are in need”. Moreover, it proceeded to ask the public to "vote for the men and women who put people before politics”, a thinly veiled entreaty to vote against the previously disparaged Republican stance on the issues addressed.

Finally, "The Voice of the New, New York” newsletter contained a tear-sheet message to be sent to the Governor for the individual recipient among the public to sign and fill in a mailing address and telephone number, stating:

"Dear Governor Cuomo,
"I agree with you. New York must continue its constitutional mandate to protect the needy. I join you in leading the fight to provide programs and services to those who need it most. Let’s not scapegoat the poor.”

The conclusion is unavoidable that the latter portion of the newsletter is "patently designed to exhort the electorate to [make an avowed, public commitment] in support of a particular position advocated by [one political faction]” (Matter of Phillips v Maurer, 67 NY2d, at 674, supra [emphasis supplied]).

In the foregoing respects, "The Voice of the New, New York” newsletter goes well beyond simply conveying information on a political issue and urging voters to participate in the democratic process. It is an unequivocal promotion of a partisan political position. Plaintiffs, therefore, have stated a valid cause of action under article VII, § 8 (1) of the New York Constitution in alleging that "The Voice of the New, New York” newsletter was prepared and disseminated at public expense. This remains so notwithstanding that the newsletter also "contains information that, standing alone, would be considered a proper attempt to educate the public” (Matter of Phillips v Maurer, 67 NY2d, at 674, supra [emphasis supplied]). Thus, so much of the order of the Appellate Division as affirmed dismissal of plaintiffs’ sixth cause of action should be reversed, and that cause of action should be reinstated.

Accordingly, the order of the Appellate Division should be modified, in accordance with the opinion herein, and as so modified, affirmed, without costs.

Ciparick, J.

(dissenting in part). I respectfully dissent from that part of the majority opinion that reinstates the sixth cause of action, and conclude that the newsletter constitutes proper and permissible government speech.

In People v Ohrenstein (77 NY2d 38, 47), we specifically recognized that the myriad political functions a legislator performs to gain support in the community, including distributing newsletters and meeting constituents, are an inherent and legitimate part of an elected representative’s job (see also, United States v Brewster, 408 US 501, 512). I would extend this proposition to reflect the fact that any elected official, such as the Governor, represents the interests of all citizens in the State, not only the official’s constituents, and has an obligation to educate and inform the electorate on issues which may divide voters on party lines.

The newsletter at issue, the spring 1992 edition of "The Voice of the New, New York[:] Spotlight on Issues Affecting the new, New York,” appears to be educational, focusing on statistics concerning welfare and Medicaid costs in an attempt to dispel what it characterizes as myths. A fair reading of this newsletter imparts two disparate views with regard to funding and reforming the programs that aid the needy, and, although the newsletter urges the recipient to vote, the decision on which platform to support remains with the voter. This is not a case where a specific proposition is presented to the voters, urging them to vote "yes” (see, Matter of Phillips v Maurer, 67 NY2d 672, 674; Stern v Kramarsky, 84 Misc 2d 447 [public funds as trust funds]), nor is it a case where moneys were solicited from the voter to further a particular cause or candidate (see, Hoellen v Annunzio, 468 F2d 522, 525, cert denied 412 US 953). The invitation to respond to the Governor does not constitute an improper exhortation or solicitation; rather it is a convenient follow-up for the voter who seeks further information. In fact, the timing of this newsletter — at least four months prior to the November election — underscores its informational character. Thus, I disagree with the majority’s characterization of this newsletter as the "unequivocal promotion of a partisan political position” (majority opn, at 236) that is patently designed to exhort the electorate to cast their ballots in support of a particular position. Moreover, there is no evidence that the dissemination of this newsletter was intended to serve the private political purposes of the Governor, his campaign committee and the State Democratic Committee, as alleged by plaintiffs.

It is never an easy task to distinguish between partisan advocacy designed to perpetuate the elected official’s tenure and the "legitimate” partisan platform an incumbent may advocate. The latter is necessary to explain and defend the governmental policy which the elected official participates in shaping, and often creates the incentive for that person to retain the elected post (Shiffrin, Government Speech, 27 UCLA L Rev 565, 603; Hoellen v Annunzio, 468 F2d, at 525, supra). In this regard, the Governor and his executive agency must be permitted to perform legitimate political activities without the threat of a challenge that public moneys were spent in violation of the Constitution.

Accordingly, I would affirm the order of the Appellate Division in its entirety.

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

Order modified, etc.

       The dissenter’s reliance on People v Ohrenstein (77 NY2d 38, supra) to justify the newsletter here because it had some educational content, is misplaced. Ohrenstein, as the dissent itself recognizes, refers only to the unique political functions of a legislator in the " 'political’ branch of government” (id., at 47).