author: Hancock, Jr., J. Chief Judge Wachtler

text:
    The People of the State of New York, Respondent, v Jackie Dietze, Appellant.
    Argued October 17, 1989;
    decided December 19, 1989

      POINTS OF COUNSEL

      Robert H. Ballan for appellant.

      Charles A. Gardner, District Attorney (Jane M. Getman of counsel), for respondent.

      Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff and Denise A. Hartman of counsel), for intervenor.
   OPINION OF THE COURT

Hancock, Jr., J.

Under Penal Law § 240.25 (2), the use of "abusive” language with the intent to "harass” or "annoy” another person is a violation punishable by a 15-day imprisonment. Because the statute, on its face, prohibits a substantial amount of constitutionally protected expression, and because its continued existence presents a significant risk of prosecution for the mere exercise of free speech, we hold section 240.25 (2) to be invalid for overbreadth, under both the State (art I, §8) and Federal (1st & 14th Amends) Constitutions. The information, to the extent that it charges defendant under that subdivision, must, therefore, be dismissed. Additionally, because the evidence presented was legally insufficient to support a conviction for a threat under Penal Law § 240.25 (1), the remainder of the information, charging defendant with violating that subdivision, must be dismissed as well.

The relevant facts are few and undisputed. Complainant and her son, both mentally retarded, were walking down a public street in the Town of Norfolk. Defendant came to her doorway with a friend and, while facing the street, referred to complainant as a "bitch” and to her son as a "dog”, and said that she would "beat the crap out of [the complainant] some day or night on the street”. With that, complainant fled in tears and reported the incident to authorities. Defendant had been aware of the complainant’s mental limitations and had, on a prior occasion, been warned by a police officer about arguing with her again.

Town Court found defendant guilty of harassment in violation of subdivisions (1) and (2) of Penal Law § 240.25 and imposed a sentence of $50 and a surcharge or, if defendant should be unable to pay the fine, 15 days’ imprisonment. County Court affirmed and a Judge of this court granted defendant leave to appeal. With regard to her conviction under Penal Law § 240.25 (2), defendant argues, as she did in both courts below, that the subdivision is unconstitutionally overbroad because its prohibitions extend to a great deal of protected speech as well as to unprotected obscenities and "fighting words”. We agree.

To be sure, calling another a "bitch” or a "dog” — the conduct allegedly constituting the violation of section 240.25 (2) here — is "abusive” in the ordinary sense of that term. The common dictionary definition of "abusive”, as "coarse”, "insulting” and "harsh”, certainly applies to defendant’s name-calling. Moreover, the evidence that defendant was aware of the complainant’s disability, that she had previously been admonished by a police officer, and that her name-calling was unprovoked was sufficient to support a finding that defendant had the requisite intent to "harass” or "annoy” the complainant (compare, People v Bacon, 37 NY2d 830; People v Pecorella, 32 NY2d 920). Hence, there being no indication in the statute that some other, special meaning was intended for "abusive” language or intent to "harass” or "annoy”, defendant’s words to complainant and her son clearly fall within the facial scope of the statute.

Defendant’s words do not, however, fall within the scope of constitutionally prescribable expression, which is considerably narrower than that of the statute. Speech is often "abusive”— even vulgar, derisive, and provocative — and yet it is still protected under the State and Federal constitutional guarantees of free expression unless it is much more than that (see, Lewis v City of New Orleans, 415 US 130, 133-134; cf., Steinhilber v Alphonse, 68 NY2d 283). Casual conversation may well be "abusive” and intended to "annoy”; so, too, may be light-hearted banter or the earnest expression of personal opinion or emotion. But unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized (Terminiello v Chicago, 337 US 1, 4-5; see also, City of Houston v Hill, 482 US 451, 461-462; People v Feiner, 300 NY 391, 402, affd 340 US 315).

At the least, any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence or other breach of the peace (see, Lewis v City of New Orleans, supra, at 133; Gooding v Wilson, 405 US 518, 525; People v Feiner, supra, at 401; People v Tylkoff, 212 NY 197, 200; cf., People v Harvey, 307 NY 588, 592). The Supreme Court has oft reaffirmed the power of States to prohibit public speech which creates an imminent danger of violence (see, e.g., City of Houston v Hill, supra, at 461-462; Gooding v Wilson, supra, at 523; Cohen v California, 403 US 15, 20), and this court has, in the past, found no constitutional infirmity in a conviction for verbally inciting a riot in disregard of police orders to desist (see, People v Feiner, supra). But the proscription of Penal Law § 240.25 (2) is not limited to such "fighting words” (see, Chaplinsky v New Hampshire, 315 US 568). Instead, it extends to any "abusive” language intended to "annoy”, and no fair reading of the statute’s unqualified terms supports or even suggests the constitutionally necessary limitations on its scope.

Moreover, we decline to incorporate such limitations into the statute by judicial construction. While it is argued that the statute’s unconstitutional overbreadth might be cured by restricting its reach to "fighting words” or other words which, by themselves, inflict substantial personal injury, such a "cure” would, indeed, be fraught with significant problems of its own. First, although, to be sure, a statute ought normally to be saved by construing it in accord with constitutional requirements (see, e.g., People v Liberta, 64 NY2d 152, 171; People v Barber, 289 NY 378, 385), it is basic that the very language of the statute must be fairly susceptible of such an interpretation; put otherwise, the saving construction must be one which the court "may reasonably find implicit” in the words used by the Legislature (People ex rel. Morriale v Branham, 291 NY 312, 317; see also, People v Finkelstein, 9 NY2d 342, 345; People ex rel. Simpson v Wells, 181 NY 252, 257; Wong Yang Sung v McGrath, 339 US 33, 50; Japanese Immigrant Case [Yamataya v Fisher], 189 US 86, 101; cf., Lanzetta v New Jersey, 306 US 451, 457). Here, the language of section 240.25 (2) — i.e., "abusive or obscene language” and "intent to harass [or] annoy” — simply does not even suggest a limitation to violence-provoking or substantial injury-inflicting utterances. An attempt by this court to so limit the statute would, thus, be tantamount to wholesale revision of the Legislature’s enactment, rather than prudent judicial construction (see, Scales v United States, 367 US 203, 211).

Second, and equally critical to our decision, construing the statute as limited to certain constitutionally proscribable speech would likely result in transforming an otherwise over-broad statute into an impermissibly vague one; the statutory language would signify one thing but, as a matter of judicial decision, would stand for something entirely different. Under those circumstances, persons of ordinary intelligence reading section 240.25 (2) could not know what it actually meant (see, People v Bright, 71 NY2d 376, 382; People v Hardy, 47 NY2d 500, 501; Robe v Washington, 405 US 313, 315). Such a deficiency is especially intolerable in a statute regulating speech. It chills the expressive freedom of those who believe the statute means what it says and, thus, are reluctant to disobey its literal command; and it subjects individuals to arrest and prosecution, even if ultimately unsuccessful, by officials strictly enforcing the statute’s prohibitions (see, Baggett v Bullitt, 377 US 360, 374; N A. A. C. P. v Button, 371 US 415, 432-433; Winters v New York, 333 US 507, 515). In short, judicial construction might remedy the overbreadth of this statute, but only at the expense of rendering it unacceptably vague (see, Aptheker v Secretary of State, 378 US 500, 515-516; cf., Tribe, American Constitutional Law § 12-29 [2d ed]).

Indeed, this court’s past decisions under section 240.25 (2), overturning convictions for mere vulgar speech on the ground that such expression did not come within the meaning of the statute (see, e.g., People v Carvelas, 35 NY2d 803; People v Collins, 31 NY2d 878; People v Shaheen, 32 NY2d 675), have not succeeded in halting the prosecution thereunder of protected expression. Consequently, in addition to reversing defendant’s conviction for "abusive” language under section 240.25 (2), it is now imperative that we reach the constitutional issue and, for all the reasons previously discussed, hold it invalid.

Defendant’s conviction under section 240.25 (1) must also be reversed. There is nothing in the record demonstrating that defendant’s statement that she would "beat the crap out of-[complainant] some day or night in the street” was either serious, should reasonably have been taken to be serious, or was confirmed by other words or acts showing that it was anything more than a crude outburst. While genuine threats of physical harm fall within the scope of the statute, such an outburst, without more, does not (see, People v Todaro, 26 NY2d 325, 330; see also, Watts v United States, 394 US 705, 708).

Accordingly, the order of County Court should be reversed, and the information dismissed.

Chief Judge Wachtler

(concurring). I agree with the majority that the evidence was insufficient to sustain defendant’s conviction under Penal Law § 240.25 (1), (see, majority opn, at 53-54). The same must be said, however, with respect to the charge that defendant committed harassment by using abusive or obscene language (Penal Law § 240.25 [2]). In case after case arising under Penal Law § 240.25 (2), we have held that the statute, despite its broad language, did not apply to language and gestures that can only be described as "abusive or obscene”, but which are nonetheless constitutionally protected (see, e.g., People v Bacon, 37 NY2d 830 ["go f_yourself’]; People v Sickles, 35 NY2d 792 [defendant gave "the finger”]; People v Burford, 34 NY2d 699 ["f_you”]; People v Pecorella, 32 NY2d 920 [defendant called police officer a "f_g liar”]; People v Shaheen, 32 NY2d 675 ["f_ you” and "son of a bitch”]; People v Collins, 31 NY2d 878 ["all you f_g cops are no good”]). The childish, but cruel statements uttered by defendant — calling complainant a "bitch” and her son a "dog” — can only be considered mild by comparison and fall well outside the scope of the statute as construed by this court for more than 15 years.

Ignoring these precedents, however, the majority holds that defendant’s words "clearly fall within the facial scope of the statute” (majority opn, at 51) and finds the statute not amenable to a limiting construction. Thus, the majority declares the statute invalid. Because I believe that we can and should save the statute, as we have done in the past, with an interpretation that would avoid the constitutional problems, I concur in result only.

It is an elementary maxim of constitutional decision making that "[n]o statute should be declared unconstitutional if by any reasonable construction it can be given a meaning in harmony with the fundamental law.” (People ex rel. Simpson v Wells, 181 NY 252, 257; see also, People v Liberta, 64 NY2d 152, 171, cert denied 471 US 1020; Matter of Second Report of Nov., 1968 Grand Jury, 26 NY2d 200, 205-206; People v Epton, 19 NY2d 496, 505, cert denied and appeal dismissed 390 US 29; People v Finkelstein, 9 NY2d 342, 345, cert denied 371 US 863.) The majority excuses us from this obligation for two reasons: first, that an interpretation of the statute consistent with constitutional requirements cannot be found " 'reasonably * * * implicit’ in the words used by the Legislature” (majority opn, at 52); second, that such an interpretation would render the statute impermissibly vague (id., at 53). I cannot agree that these are serious concerns, or that they justify a facial assessment in this case.

The strong presumption of constitutionality enjoyed by an act of the Legislature rests in part on an appropriate measure of respect for a coordinate branch of government, including recognition that the judicial branch does not have a monopoly on constitutional values. Thus, "[i]t must be assumed that the Legislature intended to enact a statute which was in harmony with the United States Constitution and the Constitution of the State of New York” (People v Epton, supra, at 505). In addition, separation of powers principles and democratic ideals caution against wholesale nullification of the expressed will of the most representative branch. To the extent that such an expression does not transgress constitutional boundaries, it should be given effect (see, People v Liberta, supra, at 171).

From these principles springs our obligation to construe a statute, if possible, to save it from constitutional infirmities. The majority asserts, however, that no such construction is permissible unless the saving limitation is "one which the court 'may reasonably find implicit’ in the words used by the Legislature” (majority opn, at 52 [citing People ex rel. Morriale v Branham, 291 NY 312, 317]). In fact, the case cited stands for precisely the opposite proposition. We held in Morriale that, unless the statute provides expressly or by necessary implication that the constitutional requirements are absent, "we may reasonably find [such requirements] implicit in the statute” (People ex rel. Morriale v Branham, supra, at 317).

Thus, the proper approach is not, as the majority suggests, to adopt á saving construction only if the constitutional limitations are suggested by the statutory language. Instead, those limitations are deemed to be implicit in the statute unless the statutory language expressly negates such an implication. The latter, proper approach gives meaning to the presumption of constitutionality of legislative acts and is in accord with principles of statutory construction that require us to read statutes in a manner that gives effect to the legislative purpose.

Here, for example, if we assume, as we must, that the Legislature intended to enact a constitutional provision, and acknowledge the expressed will of the Legislature to proscribe "abusive or obscene language” intended to "harass, annoy or alarm”, then an interpretation of the statute that would proscribe such language within constitutional limits would be most consistent with the legislative purpose. Certainly, such an interpretation is more consistent with the legislative purpose than is a decision to nullify the statute altogether.

Furthermore, it would require no "wholesale revision of the Legislature’s enactment” (majority opn, at 53) to accommodate the constitutional limitations. The statute’s requirement of an "intent to harass, annoy, or alarm” need only be equated with an intent to "inflict injury or tend naturally to evoke immediate violence or other breach of the peace”, to use the majority’s test for unprotected speech (majority opn, at 52). This is no great stretch. If we are to take seriously our obligation to construe a statute to avoid constitutional infirmities, then we must be willing to incorporate constitutional limitations into language that might have a broader scope if we were to rely only on "dictionary definitions” (cf., majority opn, at 51).

Indeed, in the past we have gone to greater lengths to defend a statute against a constitutional challenge. In People v Epton (supra, at 505-506), for example, despite definitive precedent from this court to the contrary (see, People v Gitlow, 234 NY 132, affd 268 US 652), we read into the criminal anarchy statutes a requirement that the defendant’s words and actions create a "clear and present danger”, thus reinterpreting the statutes to accommodate more recent First Amendment developments. Similarly, in Dollar Co. v Canadian Car & Foundry Co. (220 NY 270, 277-278), we were faced with a statute that, as previously construed by us, was clearly unconstitutional in light of subsequent holdings by the United States Supreme Court. We held that the obligation to construe the statute in accordance with the Constitution outweighed the principle of stare decisis and required us to reconstrue the statute accordingly (see also, Matter of Bell v Waterfront Commn., 20 NY2d 54, 62 ["Accordingly, as required by the First Amendment, we read the Waterfront Commission Act and construe the clause, 'knowingly or willingly advocates the desirability of overthrowing the government of the United States by force or violence,’ to proscribe only that type of advocacy (1) which is intended to indoctrinate or incite to action in furtherance of the defined doctrine and (2) which is accompanied by a 'clear and present danger’ of success.”]).

Thus, it cannot be a barrier to a limiting construction in this case that "the language of section 240.25 (2) [does not] suggest a limitation to violence-provoking or substantial injury-inflicting utterances.” (Majority opn, at 52-53.) The very purpose of construing a statute in accord with constitutional requirements is to supply limitations not overtly provided by the Legislature. Obviously, in Epton and Dollar, neither the statutory language nor the legislative history suggested the limitations imposed by the Constitution; the earlier cases established as much, but we nonetheless incorporated those limitations as they evolved. According to the majority’s formula, however, a limiting construction would only be available when the Legislature has already provided the limitations — i.e., when there is no need for it. Such reasoning creates much more than a limited exception to our duty to construe statutes in accord with constitutional limitations; it abrogates that duty entirely.

Nor would our incorporation of such limitations create a vagueness problem. The suggestion that it would, because "the statutory language would signify one thing but, as a matter of judicial decision, would stand for something entirely different” (majority opn, at 53) is no less than a suggestion that a limiting construction can never save a criminal statute in the First Amendment overbreadth context.

The majority’s concern appears to be that judicial decisions do not provide adequate notice to persons of ordinary intelligence and presumably that those persons would continue to be guided by the overbroad statute.

Assuming this to be true, it would not create a problem with the kind of notice that the vagueness doctrine addresses, that is, "fair warning that * * * contemplated conduct constitutes a crime.” (Bouie v City of Columbia, 378 US 347, 355.) The problem with the statute as written is not that it fails to provide fair warning that abusive or obscene language constitutes a crime, but that it fails to provide notice that some of such language does not and cannot constitute a crime because it is constitutionally protected. The statute provides too much notice, not too little; its defect remains overbreadth.

To insist that such a "notice” problem would survive our limiting construction is simply to deny the efficacy of such a technique and to leave no room for its use in the future. The flaw in the majority’s analysis is its premise that judicial decisions stand apart from the statute. For purposes of over-breadth and vagueness analysis, however, our interpretation of the statute incorporating constitutionally mandated limitations "puts [those] words in the statute as definitely as if it had been so amended by the legislature.” (Winters v New York, 333 US 507, 514; see also, New York v Ferber, 458 US 747, 769, n 24; Wainwright v Stone, 414 US 21, 23; Dombrowski v Pfister, 380 US 479, 491, n 7.)

Furthermore, our citizens are chargeable with knowledge of our limiting constructions of statutes, even those occurring subsequent to the acts in question (Winters v New York, supra, at 514; People v Epton, supra, at 506; but cf., Bouie v City of Columbia, supra [defendants not chargeable with knowledge of subsequent expansion of statute]). Thus, the United States Supreme Court routinely addresses claims of statutory vagueness and overbreadth in terms of the statute as definitively glossed by the State courts (see, Wainwright v Stone, supra, at 22-23; Chaplinsky v New Hampshire, 315 US 568, 572-573; Monaghan, Overbreadth, 1981 Sup Ct Rev 1, 21-22; see generally, McGautha v California, 402 US 183, 258-260 [Brennan, J., dissenting], and cases cited).

Indeed, the Chaplinsky case by itself thoroughly answers the majority’s concerns. The New Hampshire statute at issue in that case was remarkably similar to Penal Law § 240.25 (2). It provided that " 'No person shall address any offensive, derisive or annoying word to any other person * * * with intent to deride, offend or annoy him’ ” (see, Chaplinsky v New Hampshire, supra, at 569). As the case came to the Supreme Court, however, the statute had been given a limiting construction by the New Hampshire Supreme Court so that it proscribed no words " 'except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.’ ” (Id., at 573.) Evaluating the statute in light of this construction, the United States Supreme Court found it neither overbroad nor unconstitutionally vague (id., at 573-574). Thus, what the majority claims is impossible to do in this case was accomplished by the New Hampshire Supreme Court and was given the approval of the United States Supreme Court in Chaplinsky.

While there may be some doubt as to whether the comparatively mild epithets uttered in the Chaplinsky case would be considered "fighting words” today, the Supreme Court has reaffirmed both that States may constitutionally punish fighting words under narrowly drawn statutes and that the narrowing terms can be supplied by judicial construction (see, Gooding v Wilson, 405 US 518, 523). To the extent that the majority’s objection to a limiting construction rests on the notion that such a technique perforce creates vagueness problems, it runs directly counter to these precedents.

In theory, of course, the effort to cure overbreadth problems may create vagueness problems (Tribe, American Constitutional Law § 12-29 [2d ed]). If, for example, a court were to limit the reach of an overbroad statute by declaring that it is inapplicable to constitutionally protected conduct, without providing any standard for determining what is protected, the statute as construed would suffer from vagueness (id.). But such a failure reflects badly on the technician, not the technique. Engrafting a carefully defined "fighting words” limitation on Penal Law § 240.25 (2), as the New Hampshire court did with the statute in Chaplinsky, presents no such problems.

Nor does the successful invocation of the First Amendment overbreadth doctrine require nullification of the statute. True, that doctrine is uniquely associated with facial invalidation of statutes (see generally, Note, The First Amendment Over-breadth Doctrine, 83 Harv L Rev 844, 845-846, 852-858 [1970]), but that circumstance is largely attributable to principles of Federalism that have no application to State courts.

Because the Federal courts, including the Supreme Court, have no power to authoritatively construe State statutes, where a State statute comes before the Supreme Court broadly construed by the State courts, the Supreme Court is bound by that interpretation of State law and cannot substitute a saving construction (Schad v Mount Ephraim, 452 US 61, 65; Gooding v Wilson, supra). This fact, in my view, explains most of the Supreme Court’s findings of facial invalidity in the overbreadth context, as evidenced by the remedy imposed in such cases. The court does not, in the typical case, "strike down” the State statute in the sense of ordering its eradication from the books; instead, the court simply suspends its enforcement "until an acceptable limiting construction is obtained” (Dombrowski v Pfister, supra, at 497; see, id., at 491, n 7; Brockett v Spokane Arcades, 472 US 491, 503; Monaghan, Overbreadth, op. cit., at 2, n 7).

Where, however, the Federal courts are reviewing Federal statutes, no such barrier exists and the courts routinely import constitutional limitations into the statutes to avoid both overbreadth and vagueness problems (see, e.g., Hamling v United States, 418 US 87 [Federal obscenity statute judicially restricted to comport with requirements of Miller v California, 413 US 15]; Buckley v Valeo, 424 US 1, 44, 76-80 [Federal Election Campaign Act narrowly construed to avoid First Amendment problems]). Thus, where Federal statutes and regulations are at issue in the Federal courts, there is little, if any, utility to the procedural component of the overbreadth doctrine — that which allows a facial challenge by one whose own conduct is not constitutionally protected (Monaghan, Overbreadth, op. cit, at 30). In such a case, there is simply no need to declare the statute facially invalid until a limiting construction can be obtained; the limiting construction can be rendered on the spot. The same is true, of course, when State statutes are reviewed in State courts.

Even when a State statute is involved in Federal court, facial invalidation (that is, suspension of enforcement pending proper limitation) is improper if the parties challenging the statute are ones who have engaged in, or desire to engage in, protected activity that the statute purports to punish (Brockett v Spokane Arcades, supra, at 504). In such a case, there is "no want of a proper party to challenge the statute, no concern that an attack on the statute will be unduly delayed or protected speech discouraged. The statute may forthwith be declared invalid to the extent that it reaches too far, but otherwise left intact.” (Id.)

Thus, facial invalidation is only compelled by the over-breadth doctrine when the statute is successfully challenged by one whose own activity is unprotected (and who would not therefore benefit from a limiting construction) and when the reviewing court lacks authority to narrow the scope of the statute to constitutional limits. Neither circumstance is present here.

Accordingly, neither the overbreadth doctrine itself nor the majority’s concerns about vagueness foreclose us from trimming the statute to its constitutional limits. Whether the statute should be voided in its entirety or saved by a limiting construction is thus governed by ordinary principles of severance (see, Brockett v Spokane Arcades, supra, at 506). The answer does not depend on whether the valid and invalid applications of the statute spring from separate words, sentences or paragraphs; instead, " '[t]he question is in every case whether the Legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether’ ” (People v Mancuso, 255 NY 463, 474; People v Liberta, 64 NY2d 152, 171, supra). There is little doubt in my mind that, given a choice between proscribing only fighting words or. none at all, the Legislature would have chosen the former.

For all of these reasons, the proper course for us to follow in this case is to give section 240.25 (2) a clear and definitive construction limiting its reach to constitutionally prescribable fighting words.

I cannot agree that it is necessary to declare section 240.25 (2) unconstitutional. Accordingly, I concur in result only.

Judges Simons, Kaye, Alexander and Titone concur with Judge Hancock, Jr.; Chief Judge Wachtler concurs in result only in a separate opinion in which Judge Bellacosa concurs.

Order reversed, etc.

      . The New York Constitution provides an independent basis for our holding; we have little doubt, however, that Penal Law § 240.25 (2) runs afoul of the Federal Constitution as well.

      . Penal Law § 240.25 provides in pertinent part:
      "A person is guilty of harassment when, with intent to harass, annoy or alarm another person: "1. He strikes, shoves, kicks or otherwise subjects him to physical contact, or attempts or threatens to do the same; or
      "2. In a public place, he uses abusive or obscene language, or makes an obscene gesture” (emphasis added).

      . See, e.g., Webster’s New Twentieth Century Dictionary of the English Language Unabridged, Second Edition.


source: Caselaw Access Project

author: Simons, J.

license: Public Domain

text:
    In the Matter of the Village of Westbury, Respondent, v Department of Transportation of the State of New York et al., Appellants.
    Argued November 15, 1989;
    decided December 19, 1989

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Andrea Green, O. Peter Sherwood and Lawrence S. Kahn of counsel), for appellants.

      Thomas R. Derosa, Stephen L. Gordon, Sy Gruza and Craig Kravit for respondent.
   OPINION OF THE COURT

Simons, J.

Petitioner Village of Westbury instituted this CPLR article 78 proceeding seeking relief from respondents’ alleged violation of the State Environmental Quality Review Act (ECL art 8). Specifically, it requests that the negative declaration issued by the respondent Department of Transportation for reconstruction of the interchange of the Northern State Parkway and the Meadowbrook State Parkway be annulled and that the matter be remitted to DOT for preparation of environmental impact statement (EIS) after consideration of the cumulative environmental effects of the interchange project and a proposed widening of a section of the Northern State Parkway east of it. Supreme Court dismissed the petition but the Appellate Division reversed its judgment, annulled the negative declaration and remitted the matter to the Department for further consideration. Construction has been enjoined until completion of proceedings complying with SEQRA.

We granted respondents leave to appeal so that we might decide whether (1) the interchange reconstruction and the proposed widening of Northern State Parkway to the east of it must be considered together when determining whether the actions of DOT will have a significant effect on the environment (see, 6 NYCRR 617.11 [a]; 17 NYCRR 15.11 [a]), (2) the regulations of the Department of Environmental Conservation or those of the Department of Transportation are to control that determination and (3) the proceeding is timely. Our review of these questions is limited to deciding whether DOT’s determination was made in violation of lawful procedures, was affected by an error of law or was arbitrary or capricious or an abuse of discretion (see, CPLR 7803 [3]; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 363). It is not our role to weigh the desirability of any proposed actions or choose among alternatives but only to insure that the agency has satisfied the substantive and procedural requirements of SEQRA and of the regulations implementing it (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, .416). For the reasons which follow, we conclude that it has not and that the Appellate Division order should be affirmed.

I

The Northern State Parkway is a limited-access parkway running generally east and west and serving the northern corridor of Long Island. It presently consists of eight lanes of traffic west of the interchange and four lanes east of it. The Meadowbrook State Parkway is a six-lane limited-access parkway running generally north and south and extending from the interchange with the Northern State Parkway southerly to Jones Beach State Park. The interchange is located in Nassau County, principally in petitioner Village of Westbury.

Reconstruction was undertaken because the design of the exit and entry ramps of the interchange is confusing, requiring drivers in some instances to leave one parkway to obtain access to the other, and the road capacity, particularly east of the interchange, is inadequate and produces excessive traffic congestion. As a result of these conditions, the accident rate in the area is more than six times the State-wide average.

The proposed reconstruction was started in June 1988 and scheduled to be completed in 1991. It will change the configuration of the interchange, providing new entrance and exit ramps, and include a new connection between the Northern State Parkway and the Meadowbrook State Parkway. The reconstruction will also provide two additional lanes (a total of four in each direction) for traffic on the Northern State Parkway for a short distance east of the interchange. Although these additional lanes on the east end of the interchange will be built as part of the interchange project, they will not be used until after Northern State Parkway is widened from the interchange east to Wantagh State Parkway. They serve no purpose independent of the widening project, so appropriate traffic control devices will prevent their use until the widening project is completed.

The widening project is tentatively scheduled to begin after completion of the interchange project and funding for it has been programmed for 1991. It will result in the continued expansion of the Northern State Parkway to four lanes in each direction east of the easterly limit of the interchange project. The projected lane alignment will match the widened alignment of the Northern State Parkway built as part of the interchange project. When the widening east of the interchange is complete, the traffic control devices preventing use of the additional lanes built during the interchange project will be removed and maximum capacity and traffic flow will be achieved.

In making its environmental review, DOT relied on the provisions of SEQRA and its own implementing regulations (see, ECL art 8; 17 NYCRR part 15). Pursuant to its regulations, DOT characterized the project as a non-Type II action, which required preparation of an environmental assessment to determine whether an environmental impact statement was needed (see, 17 NYCRR 15.6). The draft environmental assessment, issued in November 1986, originally included a proposed alternative to widen the Northern State Parkway from four to eight lanes easterly of the interchange from the Meadowbrook Parkway to the Wantagh Parkway. Serious public objections to the construction were expressed by the Village of Westbury and others. The Village objected particularly to parts of the widening proposal, and the necessary closing or elimination of certain bridges in connection with it, and the rerouting of traffic through the Village during construction of this extended improvement. Consequently, in June 1987 DOT issued a final report/environmental assessment which revised the easterly limit of the project by shifting it about 1,200 feet west towards the interchange. DOT determined the project, as so modified, would have no significant environmental impact and issued a negative declaration.

Petitioners contend this declaration must be annulled because it was issued without considering the cumulative environmental impact of both the interchange and the projected construction to widen Northern State Parkway, as required by applicable regulations, was arbitrary and capricious and an abuse of discretion.

II

Generally speaking, SEQRA charges State and local agencies with the responsibility of implementing the procedures and purposes it sets forth. To that end, they must determine first whether a proposed action may have a "significant effect” on the environment and, if it does, prepare or cause to be prepared an environmental impact statement in the manner set forth in the statute (ECL 8-0109 [2]). The idea is to insure investigation and study before proceeding so that "agency decision-makers — enlightened by public comment where appropriate — will identify and focus attention on any environmental impact of proposed action, that they will balance those consequences against other relevant social and economic considerations, minimize adverse environmental effects to the maximum extent practicable, and then articulate the bases for their choices.” (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 414-415, supra.) Inquiry starts with an assessment of the action and a determination of whether it "may have a significant effect” on the environment. If it might, an EIS is required. If the agency determines that the proposed action will not have a significant effect on the environment it issues a "negative declaration” (see, 6 NYCRR 617.2 [y]; 17 NYCRR 15.6 [b]).

The criteria for determining whether a proposed action "may have a significant effect” on the environment are set forth in the regulations (6 NYCRR 617.11; 17 NYCRR 15.11). The agency must compare the impacts which may reasonably be expected from the proposed action with these criteria, in making its assessment. Relevant to this litigation, the agency must, in determining whether an action will have any of the consequences listed, consider reasonably related effects "including other simultaneous or subsequent actions which are: (1) included in any long-range plan of which the action under consideration is a part; (2) likely to be undertaken as a result thereof; or (3) dependent thereon” (6 NYCRR 617.11 [b]; 17 NYCRR 15.11 [b]).

It is petitioner’s claim that respondents violated these regulations because DOT’s environmental review should have considered — together—the reconstruction of the interchange and the project to widen Northern State Parkway east of it; that when considered together, their environmental impact meets the criteria of the regulations requiring the preparation of an EIS. DOT claims that the two projects are separately conceived and serve separate purposes, one to eliminate a traffic hazard, the other to increase traffic capacity; they are not part of an area- or community-wide plan, as in Matter of Save the Pine Bush v City of Albany (70 NY2d 193) and Chinese Staff & Workers Assn. v City of New York (supra) and thus they need not be considered together.

We conclude that the widening of Northern State Parkway is the type of subsequent action contemplated by the regulations and that the environmental effects of the two projects should be considered together. The interchange construction is one part of a plan to alleviate the traffic congestion and capacity deficiencies of the Northern State Parkway at its interchange with Meadowbrook State Parkway and east of it. The other part of that plan is the widening project. The two are complementary components of the remedy for the Northern State Parkway’s traffic flow problems, sharing a common purpose, integrated and scheduled for consecutive construction. Thus, design of each is dependent on the other in that lane construction which will be undertaken as part of the interchange project has no independent utility without the subsequent widening of Northern State Parkway to the east. That being so, the regulations require the consideration of their combined effects even though they are not part of a single formalized plan (cf., Matter of Save the Pine Bush v City of Albany, supra; Chinese Staff & Workers Assn. v City of New York, supra).

The record contains ample evidence to support this conclusion. Notwithstanding DOT’s claim that the construction was undertaken to solve a safety hazard in the interchange, it appears that the purpose for the improvements was more broadly related to traffic congestion and the safety hazards resulting from it. Thus, DOT stated in its final design report/ environmental assessment that the interchange project was developed to "alleviate traffic congestion” and, referring to the interchange construction, that "[t]he inability of the facility to provide adequate traffic flow is a critical deficiency.” The report also linked the two projects when it determined that "[t]he existing number of Northern State Parkway travel lanes (2 per direction), east of the interchange does not provide for efficient traffic flow. Current traffic volumes (3,500 vehicles during the peak hour) exceed the capacity of the facility at this location.”

DOT’S Informational Bulletins, distributed to the public, and written responses to questions from the public repeatedly identified the "traffic operation deficiencies” and "inadequate traffic flow problems”, listing "[d]aily traffic jams and capacity limitations” during rush hours at the interchange as "one of the major transportation problems on Long Island.” These Informational Bulletins concluded that part of the remedy for this problem is the construction of additional travel lanes on the Northern State Parkway east of the interchange. Corroboration is also found in the Nassau-Suffolk Transportation Improvement Programs for 1986-1991 and 1987-1992. Although these reports only purport to list priorities and project future programs, it is noteworthy that both identified the interchange and widening as "complement[ary]” projects designed to improve the over-all traffic flow on the Northern State Parkway.

Moreover, DOT has treated the two projects in a unified, interchangeable fashion, planning the design of the interchange and the widening of Northern State Parkway as part of the same plan, with the widening project likely to be undertaken as a result of, and dependent on, the interchange project. Thus, the interchange project includes the construction of two additional lanes for both the eastbound and westbound directions on the Northern State Parkway, lanes which have no utility except upon completion of the widening project. Only then will the additional lanes in the interchange be used, and maximum capacity and traffic flow achieved.

DOT maintains that all highway construction, by its nature, is interdependent and each project necessarily related to others. Thus, it contends that if petitioner prevails in its argument the future rehabilitation of one part of the highway system necessarily will require it to consider the impact resulting from all others contemplated in its geographic area.

We recognize that although highway projects in a particular area may be related in the broad sense, few given the uncertainties and economics of capital construction, may be said to be totally dependent on others. We do not suggest that the cumulative effects of all tentative plans for an area must be measured fully in every case. Here, however, DOT sought to solve one localized problem caused by two predominant factors —the design of the interchange and the inadequate capacity of its highways — and the solution for each was related to the other. DOT’s reliance on the future widening of the Northern State Parkway in planning the interchange project establishes that the widening is, in the words of the regulations, a "subsequent action” "included in any long-range plan”, "likely to be undertaken as a result” of the interchange construction or "dependent” on it (see, 6 NYCRR 617.11 [b]; 17 NYCRR 15.11 [b]). Indeed, DOT’s various alternative proposals recognized that the two were related and it may not avoid consideration of their combined environmental effects simply by moving the limit line of the construction further west.

Ill

Petitioner contends further that on remittal DOT must evaluate the proposed action by means of the environmental criteria set forth in the DEC regulations rather than its own. DOT’s regulations were adopted pursuant to statutory authorization permitting agencies to establish additional procedures but requiring that the agency regulations be "consistent with [those] adopted by [DEC]” (see, ECL 8-0113 [3]; n, at 68). Petitioner maintains that as applied to this case DOT’s regulations are less protective of the environment than are those of DEC and, therefore, DEC’s must control.

Petitioner relies specifically on the classification of actions set forth in the two regulations. The DEC regulations provide for excluded, exempt, Type I, Type II and unlisted actions (6 NYCRR 617.2 [p], [q], [ii], Qj], [kk]). Petitioner maintains that under DEC’s rules this action is a Type I action because it involves the physical alteration of more than 10 acres (see, 6 NYCRR 617.12 [b] [6] [i]) and as such it "carries with it” the presumption that it is likely to have a significant effect on the environment (6 NYCRR 617.12 [a] [1]). Thus petitioner maintains an EIS must be prepared.

DOT does not classify its actions in the same way. Because of the nature of DOT’s responsibilities, it is concerned more with whether the activity involves direct action, funding or permit-issuing and with the integration of its procedures with the National Environmental Policy Act when, for example, Federal aid is received. Under DOT’s regulations, actions other than exempt or excluded actions are divided into two categories: Type II which do not require an EIS, and actions other than Type II, which are more likely to require one. The latter corresponds to the Type I actions of DEC and are treated the same procedurally (17 NYCRR 15.1 [c] [2]; 15.6, and compare with 6 NYCRR 617.5 [b]). If a non-Type II action involves direct action, as here, the Department prepares an environmental assessment form and, after concluding the environmental assessment, either issues a negative declaration or prepares an EIS (see, 17 NYCRR 15.6).

DOT’s regulations contain no explicit presumption of significance similar to that provided in . the DEC regulations for Type I actions but it is not clear that the Department intended a difference in substance by this omission. In any event, DOT’s regulations provide that all actions which are non-Type II actions are to be processed "similar to” a Type I action under DEC regulations (17 NYCRR 15.1 [c] [2]) and that its regulations are to be applied in a manner not less protective of the environment than DEC’s (17 NYCRR 15.1 [d]). Thus, we agree with petitioner that upon reconsideration DOT should process the proposed action in the same way Type I actions are processed under DEC regulations and determine whether it has a significant effect on the environment.

IV

Finally, respondents contend this proceeding, commenced on December 17, 1987, is time barred because the Statute of Limitations started to run either on July 30, 1987, the date DOT finally approved the interchange project, or on August 7, 1987, the latest date DOT gave the required notice of the negative declaration to DEC, DOT’s own offices and the Nassau County Executive (see, 17 NYCRR 15.10). The Village maintains that the statute did not start to run until DOT served it with notice of the negative declaration, August 18, 1987, and therefore the proceeding is timely.

An article 78 proceeding must be commenced within four months "after the determination to be reviewed becomes final and binding upon the petitioner.” (CPLR 217.) A determination generally becomes binding when the aggrieved party is "notified” (see, Matter of Biondo v New York State Bd. of Parole, 60 NY2d 832, 834; see also, Matter of Martin v Ronan, 44 NY2d 374; Mundy v Nassau County Civ. Serv. Commn., 44 NY2d 352).

DEC’S regulations provide that a negative declaration is not "final and binding” until the agency files it with "the chief executive officer of the political subdivision in which the action will be principally located” (6 NYCRR 617.10 [a] [2] [iii] [emphasis added]). DOT’S parallel regulation provides that a negative declaration is not "final and binding” until filed with "the chief executive officer of the appropriate political subdivision in which the action is located” (17 NYCRR 15.10 [a] [2] [v] [emphasis added]). Respondents contend that under either provision DOT’s filing obligation was complete when it served Nassau County: the Village was not entitled to a separate notice.

Notwithstanding the minor language differences, we construe both regulations the same and conclude DOT did not satisfy the notice requirements of either 6 NYCRR 617.10 (a) (2) (iii) or 17 NYCRR 15.10 (a) (2) (v) by filing its negative declaration with the Chief Executive Officer of Nassau County.

The purpose of the SEQRA notice requirement is to provide notice to the party or parties most likely to be affected by agency action. The Village of Westbury is more directly and obviously affected by the interchange project than was Nassau County because the interchange project is located almost entirely within the borders of the Village, only the outer limits of the interchange project cross into neighboring municipalities,, and the widening project was entirely within the Village. Moreover, the Village had continually exhibited its paramount interest in the project and its concern over the use of its streets and neighborhoods to handle detoured traffic throughout the review process. If the regulation-drafters intended service upon the county to be sufficient notwithstanding such substantial interests, they could easily have provided for service of notice on the "county” rather than the flexible standard the regulations now contain. In view of this lack of particularity in the regulations and their incorporation of subjective considerations when determining who is to be served, the burden rested on DOT, as the party seeking to assert the statute as a defense, to establish that its decision was appropriate and provided notice more than four months before the proceeding was commenced (see, Matter of Castaways Motel v Schuyler, 24 NY2d 120, 126-127). On this record, we conclude the statutory period did not start running until petitioner was served.

Respondents contend further that when an agency makes a decision of general import that does not directly determine the rights of individuals, the agency is not required to give notice to potentially interested persons; the limitations period begins when the agency’s decision is made public. In view of the explicit language for actual notice to political subdivisions, however, we conclude that the notice requirements of the regulations were not satisfied in petitioner’s case by publication.

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

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

Order affirmed, with costs.

       SEQRA provides that the Commissioner of the Department of Environmental Conservation shall adopt rules and regulations implementing the provisions of SEQRA (ECL 8-0113). The statute also permits other agencies, subject to its provisions, to adopt procedures necessary to implement the requirements of the statute, provided that such "procedures shall be no less protective of environmental values” than DEC regulations (ECL 8-0113 [3]). Pursuant to ECL 8-0113 (3) DOT promulgated its own SEQRA regulations, codified at 17 NYCRR part 15.


author: Hancock, Jr., J.

text:
    In the Matter of Royal Indemnity Company, Appellant, v Tax Appeals Tribunal et al., Respondents.
    Argued November 16, 1989;
    decided December 21, 1989

      POINTS OF COUNSEL

      Eugene Chester and James H. Kenworthy for appellant.

      Robert Abrams, Attorney-General (Wayne L. Benjamin, O. Peter Sherwood and Peter.H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Hancock, Jr., J.

We agree with the Appellate Division that under Tax Law § 1503 (b) (4) (B) a taxpayer’s State deduction for net operating losses for a tax year is limited to the amount of the Federal loss deduction for the same year.

The facts are not in dispute. Petitioner, a property and casualty insurer, is a Delaware corporation licensed to do business in New York. For tax years beginning on or after January 1, 1974, petitioner became subject to tax under article 33 of the Tax Law (Tax Law § 1500 et seq.) for the privilege of doing business in this State (see, Tax Law § 1501 [a]).

During the taxable years 1974 and 1975, petitioner sustained net operating losses. All of its 1974 and a portion of its 1975 losses were "carried back” to pre-1974 tax years for Federal income tax purposes (see, Internal Revenue Code [26 USC] § 172 [b] [2]). The balance of petitioner’s net operating losses sustained in 1975 were "carried forward” as deductions to its 1976 and 1977 entire net income for Federal income tax purposes. Because petitioner did not pay New York State taxes under article 33 before 1974, it could not similarly "carry back” a deduction for 1974 and 1975 losses to pre-1974 tax years for State income tax purposes. In filing its 1976 and 1977 State returns under article 33, petitioner was permitted under the statute to take "net operating loss deductions”. Petitioner took, as part of its deductions, the amount of its 1974 and 1975 losses which it had not been able to carry back for State tax purposes but had been able to carry back to pre 1974 tax years for Federal tax purposes. As a result, in 1976 and 1977 the amount of the deduction petitioner took for net operating losses for State tax purposes was greater than the amount taken for Federal tax purposes.

The Audit Division of the State Department of Taxation (the Department) reduced petitioner’s net operating loss deductions for the 1976 and 1977 tax years to the amount of its Federal net operating loss deduction. Upon administrative review, the Administrative Law Judge upheld the Department’s actions and respondent Tax Appeals Tribunal confirmed the ALJ’s determination. Petitioner commenced this article 78 proceeding challenging the Tribunal’s determination. The Third Department confirmed the determination and dismissed the proceeding and this court granted petitioner leave to appeal.

Petitioner argues that the use of the Federal method of computation, and not the actual amount, of the Federal net operating loss deduction is required to be used in determining the State net operating loss deduction under Tax Law § 1503. Petitioner relies principally on a Second Circuit decision interpreting an analogous former New York City general corporate taxation scheme (see, Matter of Avien, Inc., 532 F2d 273). We decline to follow the Second Circuit’s reasoning in Avien and agree with the conclusion reached below that the New York net operating loss deduction cannot exceed the amount deducted on the Federal return for the corresponding year (see, Matter of American Employers’ Ins. Co. v State Tax Commn., 114 AD2d 736; see also, Matter of Eveready Ins. Co. v New York State Tax Commn., 129 AD2d 958, lv denied 70 NY2d 604).

Whether and to what extent a deduction shall be allowed is a matter of legislative grace and, therefore, the taxpayer bears the burden of establishing its right to a particular deduction (see, Matter of Grace v New York State Tax Commn., 37 NY2d 193, 197; Matter of Gurney v Tully, 51 NY2d 818, revg on dissenting opn by Staley, J., 67 AD2d 303, 305-307). Petitioner has not sustained its burden.

Petitioner’s franchise tax is based on petitioner’s entire net income or portion thereof allocated within this State (Tax Law § 1502 [a] [1]). Tax Law § 1503 (b) (4) provides that any net operating loss deduction "allowable under section[ ] one hundred seventy-two * * * of the internal revenue code [26 USC § 172], which is allowable to the taxpayer for federal income tax purposes” may be used for State tax purposes. Any such deduction "shall not, however, exceed any such deduction allowable to the taxpayer for the taxable year for federal income tax purposes” (Tax Law § 1503 [b] [4] [B] [emphasis supplied]). While petitioner will never be able to claim its 1974 loss and a portion of its 1975 as a deduction for State tax purposes, we nevertheless believe respondent properly interpreted Tax Law § 1503 (b) (4) (B).

Respondent’s interpretation of Tax Law § 1503 is supported by the legislative history. The legislative history suggests that the deduction provisions contained in article 33 of the Tax Law were intended to be substantially similar to those required under article 9-A (see, State Dept of Taxation & Fin, Mem in support, Bill Jacket, L 1974, ch 649, at 3; State Ins Dept. Mem in support, id., at 7; Senate Budget Report on Bills in support, id., at 11, 12). The Legislature provided that the provisions in article 33 should be regarded as being in pari materia and construed in a like manner as substantially identical provisions contained in article 9-A (L 1974, ch 649, § 12). At the time of the enactment of article 33, the analogous article 9-A loss deduction provision (see, Tax Law § 208 [9] [f]) had been consistently interpreted as limiting the State loss deduction for the tax year to the amount of the Federal deduction (see, Matter of Abraham & Straus v Tully, 47 NY2d 207, 214).

In light of the foregoing, the judgment of the Appellate Division should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    The People of the State of New York, Respondent, v Mauricio Osorio, Appellant.
    Argued November 21, 1989;
    decided December 21, 1989

      POINTS OF COUNSEL

      Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Thomas Farber and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Simons, J.

Defendant has been convicted of criminal possession of a weapon, third degree (Penal Law § 265.02 [4]). He contends the judgment must be reversed because it is based upon the statutory presumption of possession arising from his presence in an automobile and the court erroneously prevented him from presenting evidence to rebut the presumption (see, Penal Law § 265.15 [3]). The evidence he sought to introduce consisted of statements made during a conversation between codefendant Pena and his attorney which had been translated by defendant. Pena’s counsel objected to the evidence claiming that defendant was acting as Pena’s interpreter and therefore the statements were privileged communications. The trial court sustained the objection and defendant was subsequently found guilty. On appeal to the Appellate Division that court affirmed the judgment. We conclude the court’s ruling was error and requires a new trial.

The issue arises from charges that defendant and two others, codefendants Pena and Mejia, robbed stereo equipment from Thomas Ridley and his brother, John. The theft occurred when defendants, seated in a parked car late one evening, were approached by the Ridleys offering to sell the equipment to them. Defendant, seated in the back seat, examined one of the pieces, a double cassette player, and then returned it to Thomas Ridley. While Mejia was examining the other piece, an argument developed over price and, without warning, Pena drove off with codefendant Mejia still holding Ridleys’ equipment; The Ridleys got in their van and pursued defendants to a closed gas station where Pena had stopped the car. John Ridley approached defendants and demanded return of the equipment. When he did so codefendant Pena, who was seated in the driver’s seat, reached out the window and pressed a .38 caliber revolver into Ridley’s ribs. When Ridley felt the gun he ran but as he did so he slipped and fell. He testified that when he fell he looked back and saw Pena leave the car, point the gun at him, and then return to the car. John Ridley testified that before he and his brother fled he saw defendant get out of the car with the gun and threaten them.

The three defendants were subsequently apprehended by police. At the time, Pena was driving, Mejia was seated in the front passenger seat, and defendant was seated in the rear seat. The missing stereo equipment was found in the front compartment near Mejia. The only handgun the police recovered was found under papers on the floor of the rear seat.

Defendants were arrested and charged with robbery, first degree, robbery, second degree, criminal possession of a weapon, second degree, and criminal possession of a weapon, third degree. The charges against codefendant Mejia were dismissed during trial. The jury found defendant Pena guilty of robbery, first degree, petit larceny, and criminal possession of a weapon, second and third degrees. It found defendant guilty of criminal possession of a weapon, third degree, and acquitted him of the remaining charges.

Codefendant Pena did not testify during the trial but defendant took the stand and stated that had he known there was a gun in the car he would not have entered it because he was on probation. He did not learn of the gun, he said, until Pena produced it at the gas station from between the front bucket seats, where it was concealed, and threatened Ridley. He sought to support his claim by testifying to admissions about the gun Pena made to his counsel. Defendant came by that information when he translated a conversation between the two men while he and Pena were incarcerated together in Rikers Island following their arrest.

Defendant contends that the attorney-client privilege does not protect these statements from disclosure because under the circumstances Pena could have no reasonable expectation that they were confidential. This is so, he claims, because he was not retained as an interpreter, he did so as an accommodation, and at the time he and Pena had an adversarial relationship. At trial, Pena’s counsel rested on his characterization of defendant as an interpreter to sustain his claim of privilege. He neither suggested any details of the meeting to support the claim nor requested a voir dire.

The attorney-client privilege, which is codified in CPLR 4503 (a), enables one seeking legal advice to communicate with counsel for this purpose secure in the knowledge that the contents of the exchange will not later be revealed against the client’s wishes (see, People v Mitchell, 58 NY2d 368, 373). The privilege belongs to the client and attaches if information is disclosed in confidence to the attorney for the purpose of obtaining legal advice or services. The burden of proving each element of the privilege rests upon the party asserting it and even if the technical requirements of the privilege are satisfied, it may, nonetheless, yield in a proper case where strong public policy requires disclosure (Rossi v Blue Cross & Blue Shield, 73 NY2d 588, 592; Matter of Priest v Hennessy, 51 NY2d 62, 68-69; see also, People v Mitchell, supra, at 373).

Generally, communications made between a defendant and counsel in the known presence of a third party are not privileged (People v Harris, 57 NY2d 335, 343; People v Buchanan, 145 NY 1, 26). An exception exists for statements made by a client to the attorney’s employees or in their presence because clients have a reasonable expectation that such statements will be used solely for their benefit and remain confidential (see, Sibley v Waffle, 16 NY 180, 183). Similarly, communications made to counsel through a hired interpreter, or one serving as an agent of either attorney or client to facilitate communication, generally will be privileged (see, United States v Kovel, 296 F2d 918, 921-922 [an accountant]; Jackson ex dem. Haverly v French, 3 Wend 337; see generally, Annotation, Attorney-Client Privilege-Extent, 96 ALR2d 125-150, §§ 9, 13).

The scope of the privilege is not defined by the third parties’ employment or function, however; it depends on whether the client had a reasonable expectation of confidentiality under the circumstances (see, Matter of Jacqueline F., 47 NY2d 215, 222; Matter of Kaplan [Blumenfeld], 8 NY2d 214, 219). Thus, in People v Mitchell (58 NY2d 368, supra) we held that a statement made to the attorney’s secretary, if it was made in the common area of a shared office where secretaries of other attorneys were present, was not privileged. Under those circumstances, the client could have no cognizable expectation of confidentiality even though he was not aware of the attorneys’ office arrangement. Similarly, statements made through a police officer interpreting a conversation between a client and an attorney would not be privileged because the conflicting interests of the parties would negate any reasonable expectation of confidentiality notwithstanding the third party’s role as an interpreter.

The interests of the codefendants were similarly conflicted here. Under the general rule, a defendant does not enjoy a confidential privilege when communicating with counsel in the presence of another codefendant (United States v Simpson, 475 F2d 934 [DC Cir], cert denied 414 US 873; United States v Melvin, 650 F2d 641, 646 [5th Cir]; see also, Finn v Morgan, 46 AD2d 229, 234-236). If the codefendants are mounting a common defense their statements are privileged but unless the exchange is for that purpose the presence of a codefendant or his counsel will destroy any expectation of confidentiality between a defendant and his attorney (United States v McPartlin, 595 F2d 1321 [7th Cir]; Hunydee v United States, 355 F2d 183 [9th Cir]). Thus, in United States v Lopez (777 F2d 543 [10th Cir]) defendant, who had participated in a meeting between his codefendant and codefendant’s counsel, sought at trial to have codefendant’s counsel testify as to statements of the codefendant. The court held that Lopez’s presence destroyed any claim of privilege because he was not attending the meeting to build a joint defense or to join his codefendant’s defense team. Under those circumstances, Lopez’s interests were potentially adverse to his codefendant and therefore codefendant had no reasonable expectation of confidentiality.

In this case neither Pena nor the People established that defendant was an agent of Pena or his counsel, or that the relationship between the codefendants was otherwise such that Pena had a reasonable expectation that statements made in defendant’s presence would remain confidential. A mere accommodation does not create an agency and defendant was an interpreter only in the broadest sense of the word; he happened to be present when Pena’s counsel visited to verify information about the gun that Pena’s girlfriend had given counsel. Because neither Pena nor his attorney spoke the other’s language and could not communicate, defendant translated counsel’s questions and Pena’s answer confirming the truth of his girlfriend’s statements and did so apparently without being asked. Any inference that Pena expected his remarks to be confidential is overcome by the fact that defendant was not planning a common defense with Pena and, therefore, had an adversarial relationship to him.

It was Pena’s responsibility to establish facts sufficient to support the privilege and he failed to do so. Accordingly, the claim of privilege should not have been sustained and defendant should have been permitted to disclose Pena’s statements if the evidence was otherwise admissible.

The People contend that Pena’s statements were not admissible, even if not privileged, because they were hearsay. They made no such objection at trial and from the limited record before us there appears to be a reasonable basis upon which the trial court may admit the statements as declarations against penal interest if Pena is not available to testify on the retrial (see, People v Settles, 46 NY2d 154). His statements that the gun belonged to his girlfriend, that he had obtained it from her and that he had put it in the car tended to shift criminal liability from defendant to himself; he was aware at the time he made the statement in the presence of a codefendant that any additional evidence connecting him to the weapon would be adverse to his penal interest; and the record contains independent evidence tending to suggest the trustworthiness of his statements.

Finally, the error was not harmless. Under established law the statutory presumption was available to establish a prima facie case against defendant (see, People v Lemmons, 40 NY2d 505, 510) and the People relied on it for that purpose during summations. Moreover, the court charged the jury, at the prosecution’s request, that all occupants in an automobile are presumed to possess a firearm found in it and explained that the presumption alone could be sufficient to convict defendant for criminal possession of a weapon, third degree. During deliberations the jury requested the court to recharge them on the possession counts and the court did so.

Thus, the applicability of the statutory presumption was put squarely in issue and a reasonable view of the record demonstrates that the jury’s verdict rests upon it. Manifestly, the jury rejected the People’s claim, based on Ridley’s testimony, that defendant actually possessed the weapon because it acquitted him of the counts charging robbery, larceny and criminal possession, second degree. His conviction of simple possession must have rested on the presumption therefore and defendant Vas entitled to rebut it by introducing evidence tending to prove that Pena possessed the gun. The excluded testimony would have enabled him to do that. If credited it would establish that the gun found in the car belonged to Pena’s girlfriend, that Pena had obtained it from her and that he had placed it in the car where it remained concealed until he threatened the Ridleys. Although this was not direct evidence of Pena’s sole possession, when coupled with the facts already before the jury, i.e., that Pena was driving the car, that he initiated the robbery by driving away from Ridleys, that he displayed the gun during the robbery, and that the car did not belong to defendant, it might well have created a doubt in the jury’s mind sufficient to rebut the presumption. At least, we cannot say there is no significant probability that it would have done so (see, People v Crimmins, 36 NY2d 230, 242-243).

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

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

Order reversed, etc.


author: Bellacosa, J.

text:
    In the Matter of New York State Superfund Coalition, Inc., et al., Respondents, v New York State Department of Environmental Conservation et al., Appellants. (Proceeding No. 1.) In the Matter of Central Hudson Gas & Electric Corp. et al., Respondents, v Department of Environmental Conservation of the State of New York et al., Appellants. (Proceeding No. 2.)
    Argued November 16, 1989;
    decided December 21, 1989

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (David A. Munro, Peter H. Schiff and Douglas H. Ward of counsel), for appellants.

      Thomas S. West, Domenick L. Gabrielli, Robert J. Alessi and Thomas F. Walsh for New York State Superfund Coalition, Inc., and others, respondents.

      Dennis P. Harkawik, Leon A. Allen, Jr., Bert H. Ware and Jesse T. Wilkins for Central Hudson Gas & Electric Corp. and others, respondents.
   OPINION OF THE COURT

Bellacosa, J.

This case and appeal concern the "Superfund” regulatory scheme, enacted by the Legislature and enforced by the Department of Environmental Conservation (DEC), addressing the enormous environmental problems associated with inactive hazardous waste disposal sites. When a threat to the environment from such sites becomes "significant”, appellant DEC is statutorily empowered to order the landowner or polluter to develop and implement a remedial clean-up program. The core of the statutory and regulatory scheme is the definition and determination of ”significant threat” and this litigation has thus far successfully challenged the implementing authority, the specificity and the sweep of the DEC actions.

New York State Superfund Coalition, Inc., a not-for-profit corporation, on behalf of itself and its members, sued in proceeding No. 1 for article 78 relief and for a declaration of invalidity of the regulation of the State Commissioner of Environmental Conservation (Commissioner) defining a "significant threat” as beyond the enabling statute (see, Boreali v Axelrod, 71 NY2d 1, 9). Central Hudson Gas & Electric Corporation and various other utilities sued in proceeding No. 2 for essentially the same relief on similar grounds. Supreme Court joined the two proceedings, declared the regulation invalid and annulled its entire regulatory framework. The Appellate Division affirmed and we granted to the State Commissioner and DEC leave to appeal. We agree with the lower courts and affirm the order appealed.

The Commissioner, pursuant to statutory authority (ECL 27-1315), promulgated 6 NYCRR part 375, effective April 16, 1987, as the regulatory rubric for the operation of ECL, article 27, title 13. ECL 27-1313 (3) (a) provides: "Whenever the commissioner finds that hazardous wastes at an inactive hazardous waste disposal site constitute a significant threat to the environment, he may order the owner of such site and/or any person responsible for the disposal of hazardous wastes at such site (i) to develop an inactive hazardous waste disposal site remedial program, subject to the approval of the department, at such site, and (ii) to implement such program within reasonable time limits specified in the order.” The portion of the regulatory framework at issue provides in pertinent part: "Upon a consideration of the findings of fact required by subdivision (b) of this section, the commissioner may determine that a significant threat to the environment exists when hazardous wastes at an inactive hazardous waste disposal site either actually or potentially: (1) violate any New York State environmental quality standard; (2) contaminate groundwater, surface water, flora, fauna or air; (3) pose a hazard to human health or the environment” (6 NYCRR 375.5 [c]).

Before a "significant threat” determination is made and the power to order a remedial program is invoked, the DEC must hold a hearing (6 NYCRR 375.5 [a]) and make specific findings as to the type and manner of disposal of the hazardous wastes on the site and various other factors indicating the site’s impact on its particular environment (6 NYCRR 375.5 [b]). The next subsection, 6 NYCRR 375.5 (c), allows the Commissioner to determine, based on the findings, "that a significant threat to the environment exists when hazardous wastes at an inactive hazardous waste disposal site either actually or potentially: (1) violate any New York State environmental quality standard; (2) contaminate groundwater, surface water, flora, fauna or air; (3) pose a hazard to human health or the environment”, plus four other instances which would allow the Commissioner to declare a "significant threat” exists (6 NYCRR 375.5 [c] [4]-[7] [emphasis added]). The core nature and pervasive impact of this portion of the regulation belies appellants’ claim that it is merely "procedural” and therefore resistant to our substantive analysis.

The axiom that an agency’s authority must coincide with its enabling statute opens that analysis (Matter of Tze Chun Liao v New York State Banking Dept., 74 NY2d 505, 510; Matter of Campagna v Shaffer, 73 NY2d 237, 243). Here, ECL, article 27, title 13 focuses its purpose on the identification, classification and cleanup of inactive hazardous waste disposal sites. The statute defines hazardous waste as that which may "[p]ose a substantial present or potential hazard to human health or the environment” (ECL 27-1301 [1] [b]). Its own qualifying specificity requires a showing that the presence of hazardous wastes constitutes a "significant threat” before the DEC can order remedial action (ECL 27-1301 [1] [b]; 27-1313 [3]). By its plain language, therefore, and to avoid an otherwise tautological standard, more than the mere presence of hazardous waste —which is always potentially hazardous — must be proven before a "significant threat” declaration under this regulatory scheme can be justified.

The promulgation of 6 NYCRR 375.5 (c) by the Commissioner bestows upon himself the power to bypass or shortcut the legislative prescription and is thus beyond the express specification in the statute itself. The regulation allows the Commissioner to determine the existence of a "significant threat” at any inactive hazardous waste disposal site which simply "potentially * * * pose[s] a hazard to human health or the environment” (6 NYCRR 375.5 [c] [3]). By equating the statute’s definition of "hazardous waste” with "significant threat”, the regulation removes the specific qualifier, however subtle it may be, in the semantical and conceptual sense. Since the Legislature kept the concepts separate, so must the Commissioner. The distinction is indeed crucial; the Legislature required that the "significant threat” finding be traced into a factual record (ECL 27-1315; see also, 27-1305 [4] [b] [1]-[5] [setting forth five categories of sites where hazardous wastes are present and concluding three of them do not pose a "significant threat”]).

The regulation poses an additional problem by allowing the Commissioner to make the "significant threat” decision on factual findings indicating that wastes at a site "either actually or potentially” causes the environmental harms listed in 6 NYCRR 375.5 (c) (l)-(7) (emphasis added). Inasmuch as hazardous wastes by statutory definition inherently suffer the potential to cause harms, their mere presence would automatically support a "significant threat” determination under any of the 6 NYCRR 375.5 (c) factors in contravention of the statutory qualification, both substantively and procedurally.

This administrative arcing is not unlike that struck down in Matter of Campagna v Shaffer (73 NY2d 237, supra), where the Secretary of State’s nonsolicitation orders to real estate brokers impermissibly interdicted "all broker-initiated solicitation, not just the illegal solicitation as targeted by the Legislature.” (Id., at 243 [emphasis in original].) Here, the DEC regulation would allow remedial programs to be ordered for all inactive hazardous waste disposal sites, not just those which pose a "significant threat” as targeted by the Legislature (see also, Council for Owner Occupied Hous. v Abrams, 72 NY2d 553, 558). Thus, we agree with the courts below that 6 NYCRR 375.5 (c) is invalid.

We turn finally to the severability question of whether the rest of the 6 NYCRR part 375 can survive without subsection 375.5 (c). In a statutory context, our test for sever-ability has been whether the Legislature "would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether.” (People ex rel. Alpha Portland Cement Co. v Knapp, 230 NY 48, 60 [Cardozo, J.].) Applying the statutory severability standard to this regulation case — without deciding whether it is on a par in all respects — the best evidence of the Commissioner’s intent is his "Severability” clause in 6 NYCRR 375.11. It provides simply that if any provision of part 375 is held invalid, the remainder of the part "shall not be affected thereby”. However, the "significant threat” standard is the core of this part and is interwoven inextricably through the entire regulatory scheme of 6 NYCRR 375.5 (see, Matter of Levine v Whalen, 39 NY2d 510, 519). Thus, judicial excision of that provision to let the rest survive is inappropriate. In addition, faced with a virtually identical clause in a different regulatory context, we said: "It would be pragmatically impossible, as well as jurisprudentially unsound, for us to attempt to identify and excise particular provisions while leaving the remainder * * * intact, since the product of such an effort would be a regulatory scheme that neither the Legislature nor the [agency] intended.” (Boreali v Axelrod, 71 NY2d, supra, at 14.)

Having determined this case on these fundamental grounds, it is unnecessary, as the lower courts also concluded, to address the other issues.

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

Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Titone concur; Judge Hancock, Jr., taking no part.

Order affirmed, with costs.