text:
    In the Matter of Nicole V., a Child Alleged to Be Abused. Lawrence V., Appellant. In the Matter of Francis Charles W., Jr., and Others. Mary Alice C., Appellant.
    Argued November 16, 1987;
    decided December 21, 1987

      POINTS OF COUNSEL

      Howard Jacobson for appellant in the first above-entitled proceeding.
    The child’s unsworn out-of-court statements were not sufficiently corroborated in order to sustain the petition. (Matter of Michael G., 129 Misc 2d 186; Matter of Margaret W., 83 AD2d 557; Matter of Nicole S., 123 Misc 2d 364; Matter of Lydia K., 123 Misc 2d 41, 112 AD2d 306; Matter of Cindy B. , 122 Misc 2d 395, revd sub nom. Matter of Cindy JJ., 105 AD2d 189; Matter of Tara H., 129 Misc 2d 508; Matter of Le Favour v Koch, 124 AD2d 903; Dutchess County Dept. of Social Servs. [Janet C.] v Bertha C., 130 Misc 2d 1043; Matter of Fawn S., 123 AD2d 871; Matter of Kimberly K., 123 AD2d 865.)

      Peter L. Zimroth, Corporation Counsel (Elizabeth S. Natrella and Larry A. Sonnenshein of counsel), for respondent in the first above-entitled proceeding.
    There was sufficient competent evidence to establish that appellant father sexually abused his 3 Vi-year-old daughter. The child’s out-of-court statements regarding her sexual victimization by appellant were sufficiently corroborated by persuasive expert testimony, the child’s nonverbal behavior, and the medical evidence. (Matter of Barbara C., 64 NY2d 866; Matter of Peter L., 59 NY2d 513; Tumolillo v Tumolillo, 51 NY2d 790; Matter of Asman v Ambach, 64 NY2d 989; Matter of Ryan D., 125 AD2d 160; Matter of Joli M., 131 Misc 2d 1088; Matter of Tammie Z., 66 NY2d 1; Matter of Eric M., 90 AD2d 717; People v Smith, 62 NY2d 306; People v Daniels, 37 NY2d 624.)

      Barbara H. Dildine and Lenore Gittis, Law Guardian, for Nicole V. in the first above-entitled proceeding.
    I. The court below correctly interpreted the nature and extent of corroboration necessary under Family Court Act § 1046 (a) (vi). (People v Smith, 62 NY2d 306; People v Daniels, 37 NY2d 624; Matter of Nicole S., 123 Misc 2d 364; Matter of Lydia K, 123 Misc 2d 41, 112 AD2d 306, 67 NY2d 681.) II. The child’s consistent and repeated out-of-court statements describing acts of sexual abuse inflicted upon her by her father were amply corroborated by physical evidence of no hymen and blood and rashes in her vaginal area, by negative changes in the child’s behavior regularly manifested after visitation with her father, and by the testimony of a well-qualified therapist that the child displayed a panoply of behavioral symptoms which experts have deemed indicative of child sexual abuse. (Matter of Michael G., 129 Misc 2d 186; Matter of T. G., 128 Misc 2d 914; Matter of Jennifer Maria G., 112 AD2d 755, 66 NY2d 1035; Matter of Joli M., 131 Misc 2d 1088; Matter of Tara H., 129 Misc 2d 508; Davis v St. Joseph’s Children’s Servs., 64 NY2d 794; Matter of Star Leslie W., 63 NY2d 136; Cibro Petroleum Prods. v Chu, 67 NY2d 806; Matter of Barbara C., 64 NY2d 866; Matter of Jose L. I., 46 NY2d 1024.) III. Appellant’s claims that his due process rights were violated by admission of the testimony of the child’s therapist and by the Family Court’s denial of appellant’s motion to have the child examined by experts of his own choice are unpreserved and without merit. (Davis v St. Joseph’s Children’s Servs., 64 NY2d 794; Matter of Star Leslie W., 63 NY2d 136; Matter of Barbara C., 64 NY2d 866; Wein v Levitt, 42 NY2d 300; Cibro Petroleum Prods. v Chu, 67 NY2d 806; Quain v Buzzetta Constr. Corp., 69 NY2d 376; People ex rel. Maiello v New York State Bd. of Parole, 65 NY2d 145; Lassiter v Department of Social Servs., 452 US 18; Matter of Cecilia R., 36 NY2d 317.)

      James P. Maxwell for appellant in the second above-entitled proceeding.
    The finding of abuse was based on an improper holding that an out-of-court statement of a child can be corroborated by the out-of-court statements of other children. (People v Mullens, 292 NY 408; People v Coleman, 42 NY2d 500; People v Jelke, 1 NY2d 321; People v Facey, 115 AD2d 11; Matter of Jennifer Maria G., 112 AD2d 755, 66 NY2d 1035; Matter of Tantalyn TT., 115 AD2d 799; Matter of Cindy JJ., 105 AD2d 189; Matter of Hawkins, 76 Misc 2d 738; Matter of Cindy B., 122 Misc 2d 395; Matter of Fawn S., 128 Misc 2d 186.)

      Robert J. Rossi, County Attorney (Anthony F. Copani of counsel), for respondent in the second above-entitled proceeding.
    The out-of-court statements of the children were sufficiently corroborated to sustain the finding of abuse in light of the strong cross corroboration between the statements, the sworn testimony of an eyewitness as to sexual abuse and physical abuse, the sexual knowledge of the children, and appellant’s failure to offer any substantive proof in her defense. (People v Smith, 62 NY2d 306; Matter of Cindy JJ., 105 AD2d 189; Matter of Joli M., 131 Misc 2d 1088; Matter of Ryan D., 125 AD2d 160; People v Daniels, 37 NY2d 624; Matter of Cecilia R., 36 NY2d 317; Matter of Simpson, 126 Misc 2d 162; Matter of Le Favour v Koch, 124 AD2d 903; Matter of Francis Charles W., 126 AD2d 936; Matter of Tantalyn TT., 115 AD2d 799.)

      Joseph J. Heath, Law Guardian, for Francis Charles W., Jr., and others in the second above-entitled proceeding.
    The finding of abuse was based on a proper holding that the out-of-court statements of the children cross-corroborated each other and were corroborated by the testimony of Merlene White. (Matter of Francis Charles W., 126 AD2d 936; People v Daniels, 37 NY2d 624; Matter of Tina H., 123 AD2d 864; Matter of Dana F., 113 AD2d 939; Matter of Kimberly K., 123 AD2d 865; Matter of Tantalyn TT., 115 AD2d 799; Matter of Fawn S., 123 AD2d 871; Matter of Cindy JJ., 105 AD2d 189.)
   OPINION OF THE COURT

Simons, J.

In these two child protective proceedings parents have been charged with sexually abusing their children. The proof of abuse rests principally on out-of-court statements of each child, evidence which is not legally sufficient to make a fact finding of child abuse unless corroborated in accordance with the requirements of section 1046 (a) (vi) of the Family Court Act. The common issue presented is whether the corroborative evidence in each proceeding is sufficient under the statute.

In Matter of Nicole V, Bronx County Family Court made a fact finding that Nicole V.’s father, respondent Lawrence V., had sexually abused his daughter, then 3 Vi years old, and prohibited him from visiting her without supervision for 18 months. On his appeal, respondent challenges the sufficiency of the evidence to support the finding of abuse, claiming the court erroneously received testimony from Nicole’s therapist to "validate” and corroborate Nicole’s out-of-court statements. In the second proceeding, Matter of Francis W. Jr., Samuel W. and David C., Onondaga County Family Court made a fact finding that a mother, respondent Mary Alice C., had sexually abused her three sons, then ages 11, 6 and 4 and removed the boys from her home for 18 months. Respondent challenges the sufficiency of the evidence to support the finding of abuse, claiming the court erroneously used the boys’ out-of-court statements to corroborate each other. The orders were affirmed by the Appellate Divisions and we granted both respondents leave to appeal so that we could consider the types of evidence which may be used to corroborate a victim’s hearsay statements in a child protective proceeding.

I

In recent years preventing the sexual abuse of children in family settings has become a major social and judicial concern (see generally, Besharov, Introductory Practice Commentary, McKinney’s Cons Laws of NY, Book 29A,. Family Ct Act art 10, at 214-216). Such abuse is difficult to detect because the acts are predominantly nonviolent and usually occur in secret rendering the child the only witness. Moreover, once abuse is uncovered it is difficult to fix blame, not only because of the lack of evidence but also because of the reluctance or inability of victims to testify.

In an effort to alleviate these problems, the Legislature, in 1969, enacted the Child Protective Procedures Act (Family Ct Act art 10). Its purpose is to protect children from injury or mistreatment while ensuring that the State’s intervention on behalf of the child, against the wishes of a parent, comports with the parent’s due process rights (Family Ct Act § 1011). Child protective proceedings do not, of themselves, permanently sever parental rights or result in criminal sanctions. They are civil in nature and a finding of abuse or neglect need only be supported by a preponderance of the evidence (Family Ct Act § 1046; Matter of Tammie Z., 66 NY2d 1, 3). Upon making such a finding Family Court may interfere with a parent’s right to continue care and custody of a child for an initial 18-month period, subject to renewal, by putting into effect a wide variety of remedies which include various levels of supervision or removal of the child from the parent’s home (see, Family Ct Act §§ 1052, 1055 [b] [i]; Matter of Tammie Z., 66 NY2d 1, 4, supra).

Because the accused parent is not subject to criminal sanctions in a child protective proceeding, the Legislature has provided that the usual rules of criminal evidence do not apply. Unsworn out-of-court statements of the victim may be received and, if properly corroborated, will support a finding of abuse or neglect (Family Ct Act § 1046 [a] [vi]). Corroboration is not required because statements of children are generally unreliable but because the out-of-court statements are hearsay and the statute requires some further evidence to establish their reliability (cf., Matter of Lydia K., 112 AD2d 306, affd 67 NY2d 681 [corroboration of child’s out-of-court statement not required if statement admissible under an exception to the hearsay rule]).

Notwithstanding these provisions, and even though the Family Court Act stated that corroboration as defined in the Penal Law was not required (see, Family Ct Act § 1012 [e] [iii]), many courts construed former section 1046 as requiring the same type of corroboration mandated by old provisions of the Penal Law requiring independent proof of the occurrence and identity of the offender in sex offenses when lack of consent was due to the victim’s age (see, Penal Law former § 130.15, repealed L 1974, ch 14, § 1). That standard made it extremely difficult to prove sexual abuse charges and thus, section 1046 (a) (vi) was amended in 1985, not to change the standard of proof or the requirement of corroboration, but to make clear that the corroboration requirements of the criminal law are not applicable to article 10 civil proceedings (see, Sponsor Goodhue’s Mem in support of legislation, L 1985, ch 724, 1985 NY Legis Ann, at 259; see also, Family Ct Act § 1012 [e] [iii]).

As amended, section 1046 (a) (vi) states a broad flexible rule providing that out-of-court statements may be corroborated by "[a]ny other evidence tending to support” their reliability (L 1985, ch 724). The amendment also provides that corroboration may include, but is not limited to, the types of evidence defined in other paragraphs of section 1046 (a). Thus, corroboration may come in the form of proof that the parent abused one of his other children (subd [a] [i]); proof that the injuries were of such nature that they would not ordinarily be sustained but for the acts or omissions of the parent (subd [a] [ii]); proof that the parent abuses drugs or alcohol to the extent that it would produce in him a state of stupor, unconsciousness, intoxication, hallucination, disorientation, incompetence or irrationality (subd [a] [iii]); hospital or agency reports suggesting the parent committed the act or omission (subd [a] [iv], [v]); and evidence regarding the emotional health of the parent (subd [a] [viii]). The statute provides that the evidence listed in these subdivisions may be sufficient, standing alone, to support a fact finding of abuse or neglect, but in those cases in which it is not, evidence of the types listed may provide corroboration for a child’s out-of-court statements. The types of evidence listed in the section are only illustrative; additional kinds may also be deemed adequate on a case-by-case basis. Thus, courts have found sufficient corroboration in admissions by the parent, even though subsequently recanted (Matter of Margaret W., 83 AD2d 557, Iv denied 54 NY2d 609), evidence that the child was afflicted with a sexually transmitted disease (Matter of Tara H., 129 Misc 2d 508; see also, Matter of Jennifer Maria G., 112 AD2d 755, appeal dismissed 66 NY2d 1035) or evidence that the child had become pregnant (Matter of Joli M., 131 Misc 2d 1088). Of course, Family Court Judges presented with the issue have considerable discretion to decide whether the child’s out-of-court statements describing incidents of abuse or neglect have, in fact, been reliably corroborated and whether the record as a whole supports a finding of abuse.

II

Applying these concepts to the evidence presented in the two proceedings before us, we conclude the statutory requirements of corroboration are satisfied in both and the orders should, therefore, be affirmed.

A

In Matter of Nicole V., petitioner presented three witnesses at the fact-finding hearing: the child’s mother, Linda V.; the child’s caseworker from Special Services for Children, Ms. Champ; and the child’s therapist, Ms. Lemp. Each witness testified to out-of-court hearsay statements made by Nicole describing incidents of sexual abuse by respondent in which he played "secret games” with her, involving hand to vagina contact, hand to chest contact, hand to anus contact, penis to vagina contact, and incidents in which he put "white paste” from his genital area in Nicole’s mouth and "all over her”.

There was also other evidence. Ms. Lemp testified that Nicole’s behavior was symptomatic of a sexually abused child. Nicole’s mother testified that Nicole developed vaginal rashes after weekend visits with respondent; that Nicole’s behavior changed after weekend visits with respondent; and that, on one occasion after Nicole returned from a visit with respondent, the mother noticed blood on the washcloth after washing Nicole’s vaginal area. Finally, petitioner submitted a certified medical report stating that Nicole’s hymen had been ruptured.

Respondent testified on his own behalf and denied the allegations of abuse. He contends on appeal that Nicole’s out-of-court statements describing incidents of sexual abuse were not sufficiently corroborated. Specifically, he contends that the opinion testimony of Nicole’s therapist was not corroborative evidence within the meaning of the statute.

Under familiar rules, expert opinions are admissible on subjects involving professional or scientific knowledge or skill not within the range of ordinary training or intelligence (People v Cronin, 60 NY2d 430, 432-433; De Long v County of Erie, 60 NY2d 296, 307; Dougherty v Milliken, 163 NY 527, 533). The psychological and behavioral characteristics and reactions typically shared by victims of abuse in a familial setting are not generally known by the average person and the courts have become increasingly more receptive to admitting expert testimony on the subject (see, e.g., People v Keindl, 68 NY2d 410, 422, rearg denied 69 NY2d 823 [psychological reactions of children sexually abused by a stepparent]; People v Henson, 33 NY2d 63, 73-74 [battered child syndrome]; see also, People v Ciervo, 123 AD2d 393 [battered wife syndrome]; People v Reid, 123 Misc 2d 1084, 1085-1088 [rape trauma syndrome]; see generally, McCord, Syndromes, Profiles and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases, 66 Ore L Rev 19 [1987]). In People v Henson (supra), we upheld the use of expert testimony on "battered child syndrome” noting that extensive research had been undertaken in the area of physically abused children revealing that they shared common behavioral characteristics; "battered child syndrome” had become an accepted medical diagnosis (id., at 73-74). Evidence that a child demonstrated such characteristics, coupled with the fact that the child’s injuries occurred while in the custody of the parents, was held sufficient to permit the inference that the parents were responsible for the injuries (supra, at 74).

The sexually abused child syndrome is similar to the battered child syndrome. It is a recognized diagnosis based upon comparisons between the characteristics of individuals and relationships in incestuous families, as described by mental health experts, and the characteristics of the individuals and relationships of the family in question (see, Sgroi, Handbook of Clinical Intervention in Child Sexual Abuse, at 39-79 [1982]; Sloan, Protection of Abused Victims: State Laws and Decisions, Children, at 110-113 [Oceana Publication]). Expert diagnoses on the subject have thus been accepted by some of our courts to validate out-of-court statements, particularly when an independent expert is employed for the purpose (see, e.g., Matter of Linda K., 132 AD2d 149; Matter of Ryan D., 125 AD2d 160; Matter of Fawn S., 123 AD2d 871; Matter of Kimberly K., 123 AD2d 865; Matter of Michael G., 129 Misc 2d 186). Indeed, such evidence has been accepted by us (see, People v Keindl, supra) and by courts of other jurisdictions, even in criminal cases, either to bolster credibility of infant victims (see, e.g., State v Kim, 64 Haw 598, 645 P2d 1330; State v Middleton, 294 Ore 427, 657 P2d 1215) or to corroborate the victim’s testimony (see, e.g., State v Sandberg, 392 NW2d 298 [Minn]; see also, Doe v New York City Dept. of Social Servs., 709 F2d 782, 791, cert denied sub nom. Catholic Home Bur. v Doe, 464 US 864). We conclude expert testimony was properly used to satisfy the corroboration requirements of section 1046 (a) (vi) in this case.

The validation evidence came from Nicole’s therapist, Ms. Lemp. She testified Nicole’s behavior led her to conclude Nicole had been sexually abused. Her opinion was formed during at least 10 therapy sessions spanning four months and was based on the nature of Nicole’s statements, their consistency over a period of time and her observation of Nicole’s behavioral patterns. Ms. Lemp explained that among the symptoms manifested by children who are sexually abused in an intrafamilial setting are: age-inappropriate knowledge of sexual behavior, manifested verbally, in play activities or through drawings; enuresis in a toilet trained child; regressive behavior and withdrawal; and severe temper tantrums or depression inappropriate for children of like age. She identified classic symptoms of child abuse in Nicole: her uncommunicative, withdrawn demeanor, a typical avoidance mechanism adopted by persons suffering from posttraumatic stress, and her knowledge of sexual activity far beyond the norm for 3 Vi-year-old children. There was no other basis in reality, for example, for Nicole’s statements of "white glue” or "paste” coming from her father’s genital area or the placing of his penis in her vagina. Those statements by Nicole demonstrated specific knowledge of sexual activity.

Ms. Lemp was also able to observe Nicole’s display of extreme anger — far exceeding the temper tantrums normally seen in young children — and her fearful behavior exhibited through nightmares and sleep disturbances; she testified that such reactions were symptomatic of an abused child. She found it significant that Nicole repeated her claims to various people over a period of time in a consistent manner because, she stated, children "do not have the skill at lying that adults do” and thus "cannot be consistent [about lying] for a period of several months to several different people”.

Respondent contends that validation evidence, even if admissible to corroborate a child’s hearsay statement, must be received from independent experts in psychiatry or psychology and Ms. Lemp’s testimony did not qualify for the purpose because she was a social worker hired by Nicole’s mother to treat her.

Ms. Lemp’s qualifications to testify were conceded by respondent, however, after it was established that she had a Bachelor’s degree in deviant behavior and social control and a Master’s degree in social work, that she was the director of two Bronx County offices of the Victim Services Agency and had counseled sexually abused children and their families for 2Vz years and that she was the chairperson of the education committee of the New York City Task Force Against Sexual Abuse.

Nor was her testimony unavailable for corroboration because she was treating Nicole. An expert’s relationship to the party offering her does not disqualify the witness from giving opinion evidence and any bias Ms. Lemp may have had could be addressed on cross-examination. Moreover, Nicole’s statement was also corroborated by evidence that she suffered from vaginal rashes, depression and sleep disturbances, that blood was found in her vaginal area and by a certified medical report stating that she had no hymen (see, Family Ct Act § 1046 [a] [vi]; CPLR 4518). There may be circumstances when the court, in its discretion, finds it desirable to use the assistance of an independent expert but in this case not only was the testimony of Ms. Lemp sufficient to corroborate Nicole’s out-of-court statements and establish a prima facie case, there was also additional corroboration which supported Family Court’s fact finding. Accordingly, the order of the Appellate Division should be affirmed.

B

In Matter of Francis Charles W., Jr., Samuel W. and David C, petitioner presented three witnesses at the fact-finding hearing: Deputy Paul Carey from the Abused Persons Unit of the Onondaga County Sheriff’s Department; Richard J. Stone, Francis’ foster father; and Merlene White, a former neighbor of respondent. Deputy Carey testified to three separate interviews he conducted with the children during which each child described incidents of sexual abuse by respondent. Deputy Carey prepared a written affidavit, accompanied by two anatomically correct diagrams (one of a young male and one of a mature female), which Francis, then 11, read and signed under oath. Additionally, Deputy Carey prepared and signed under oath two contemporaneous affidavits which summarized the interviews he conducted with Samuel and David (see, Family Ct Act § 1046 [a] [iv]). These three affidavits were admitted into evidence. Further, Francis’ foster father testified that in a conversation with his stepson, Francis described generally sexual acts which previously occurred between Francis and respondent and each of the other brothers and respondent. Finally, Merlene White described an incident, which occurred six months earlier, where Samuel and David put their hands inside respondent’s shirt and fondled her breasts for 5-10 minutes, and other incidents which occurred five years and three years earlier where respondent punished Francis with a two-inch leather belt. Respondent did not testify on her own behalf. Her sister testified but her testimony was directed solely to impeaching Merlene White’s testimony.

Thus, the petitioner’s proof consisted principally of two levels of admissible hearsay statements describing incidents of sexual abuse. First, there were the out-of-court statements Francis made to Deputy Carey and his foster father and those contained in Francis’ affidavit. Those hearsay statements could not be used to cross-corroborate each other because section 1046 (a) (vi) provides that "previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect” (Family Ct Act § 1046 [a] [vi] [emphasis added]). The natural meaning of that language is that repetition of an accusation by a child does not corroborate the child’s prior account of it.

In addition to Francis’ hearsay statements, however, there were admissible hearsay statements by his two brothers, Samuel and David. These statements could properly be used to cross-corroborate Francis’ statements and each other because section 1046 (a) (vi) provides that '[ajny other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision shall be sufficient corroboration” (emphasis added). Inasmuch as Samuel and David’s statements were types of evidence defined in the section, they could be used to corroborate their brother’s statement of his abuse. Although the use of cross corroboration has been criticized, we have recognized that independent statements requiring corroboration may corroborate each other, even in criminal prosecutions involving sexual abuse (see, People v Coleman, 42 NY2d 500, 506; see also, People v Jackson, 121 AD2d 743, affd 70 NY2d 768; People v Allen, 99 AD2d 592, affd 64 NY2d 979; People v Keindl, 68 NY2d 410, 423, supra; see also, Matter of Tantalyn TT., 115 AD2d 799, 801; Matter of Cindy JJ., 105 AD2d 189, 190-191). In criminal cases, of course, the corroborating witnesses testify under oath at trial, but the nature of the evidence, and its acceptance for purposes of corroboration, is the same.

The statements of each of the three brothers in this proceeding tend to support the statements of the others and, viewed together, give sufficient indicia of reliability to each victim’s out-of-court statements. Specifically, both Francis and David described an incident in which respondent had David put a "stick” into respondent’s vagina while Francis looked on. Additionally, both Samuel and Francis described separate incidents where respondent came into each child’s bedroom in the middle of the night and had sexual relations, hand to penis contact and mouth to penis contact, with each child after which she threatened each child not to tell anyone about the incidents. Because each child had consistently and independently described these particularly detailed sexual acts, the reliability of the victim’s out-of-court statements could be weighed by comparing them. Thus, the courts below were justified in finding each victim’s hearsay statements were sufficiently corroborated to create a prima facie case of sexual abuse under section 1046 (a) (vi) by the statements of the other victims and because a prima facie case was established, the affirmed factual findings of abuse are beyond this court’s review.

Accordingly, the Appellate Division orders in Matter of Nicole V. and Matter of Francis Charles W. should be affirmed.

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

In each case: Order affirmed, without costs.

      . Family Court Act § 1046 (a) (vi) provides that in any hearing under article 10: "(vi) previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect. Any other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision shall be sufficient corroboration. The testimony of the child shall not be necessary to make a fact-finding of abuse or neglect”. Respondent in Nicole V. erroneously contends the 1985 amendment does not apply in his proceeding. Because this amendment was meant to clarify, and not expand the prior version, the Legislature provided it should "take effect immediately [Aug. 1, 1985] and shall apply to all actions and proceedings pending or commenced on or after the effective date of this act” (L 1985, ch 724, § 2).

      . Respondent’s constitutional arguments, raised for the first time in this court, are not preserved (Matter of Barbara C., 64 NY2d 866, 868; Matter of Peter L., 59 NY2d 513, 519).


source: Caselaw Access Project

author: Hancock, Jr., J.

license: Public Domain

text:
    In the Matter of Frew Run Gravel Products, Inc., Appellant, v Town of Carroll et al., Respondents.
    Argued November 9, 1987;
    decided December 21, 1987

      POINTS OF COUNSEL

      Andrew W. Goodell for appellant.
    I. The Environmental Conservation Law supersedes a local zoning law relating to the extractive mining industry. (Matter of Kelley v McGee, 57 NY2d 522; Wambat Realty Corp. v State of New York, 41 NY2d 490; Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347; People v De Jesus, 54 NY2d 465; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Rankin v Shanker, 23 NY2d 111; Metropolitan Life Ins. Co. v Durkin, 276 App Div 394, 301 NY 376; Matter of Moskowitz v La Guardia, 183 Misc 33, 268 App Div 918, 294 NY 830; Giblin v Nassau County Med. Center, 61 NY2d 67.) II. The Town of Carroll cannot prohibit extractive mining operations specifically authorized by the New York State Department of Environmental Conservation. (Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99; People v De Jesus, 54 NY2d 465; McMillen v Browne, 14 NY2d 326; Matter of Northeast Mines v State of New York Dept. of Envtl. Conservation, 125 Misc 2d 441, 113 AD2d 62, 67 NY2d 917.)

      Paul V. Webb, Jr., for Town of Carroll, respondent.
    I. The Town of Carroll Zoning Ordinance is not an "extractive mining” ordinance so as to be superseded by the Environmental Conservation Law. (Matter of Northeast Mines v State of New York Dept. of Envtl. Conservation, 125 Misc 2d 441, 113 AD2d 62, 67 NY2d 917.) II. The plain language of the Environmental Conservation Law does not evince a legislative intent to supersede local zoning ordinances. (People v New York Trap Rock Corp., 57 NY2d 371; Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679; Matter of Envirogas, Inc. v Town of Kiantone, 112 Misc 2d 432, 89 AD2d 1056.) III. The Department of Environmental Conservation had the right to condition its permit upon the permittee obtaining from the town its approval where and when required.

      Joseph DiBenedetto and Paul A. Gallay for Seaboard Contracting & Material, Inc., and others, amici curiae.

    I. The decision below should be reversed in order to prevent regulation of extractive mining in the guise of land use regulation. (Matter of Northeast Mines v State of New York Dept. of Envtl. Conservation, 113 AD2d 62.) II. The Carroll Zoning Ordinance, on its face, is preempted by the State mine law. (Jewish Consumptives’ Relief Socy. v Town of Woodbury, 230 App Div 228, 256 NY 619; Town of Onondaga v Hubbell, 8 NY2d 1039; Matter of Cannon v City of Syracuse, 72 Misc 2d 1072; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359.)

      William J. Gilberti, Jr., Joshua H. Heintz, Albert M. Ferio, Jr., and Rosemary Stack for Empire State Concrete and Aggregate Products Association, Inc., amicus curiae.

    I. Proper statutory construction requires the conclusion that the Mined Land Reclamation Law supersedes local zoning laws and ordinances. II. The decision below is inconsistent with and contrary to the legislative policy and intent in enacting the Mind Land Reclamation Law which vests the State with exclusive jurisdiction to regulate the mining industry. (Matter of Northeast Mines v State of New York Dept. of Envtl. Conservation, 113 AD2d 62, 67 NY2d 917; Matter of Syracuse Aggregate Corp. v Weise, 51 NY2d 278; People v New York Trap Rock Corp., 57 NY2d 371; Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679; Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99; Jewish Consumptives’ Relief Socy. v Town of Woodbury, 230 App Div 228, 256 NY 619; Suffolk Hous. Servs. v Town of Brookhaven, 70 NY2d 122; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347; Wambat Realty Corp. v State of New York, 41 NY2d 490.)
   OPINION OF THE COURT

Hancock, Jr., J.

The New York State Mined Land Reclamation Law (ECL 23-2701 — 23-2727) establishes a detailed legislative scheme under which the Department of Environmental Conservation is empowered to regulate mining and the reclamation of mined lands and to promulgate and enforce necessary and appropriate standards and rules and regulations for such purposes. Among other things, the Department is specifically authorized to establish criteria for "the operation of mining” (ECL 23-2709 [1] [d]) and for the "acceptable reclamation of affected lands” (ECL 23-2709 [1] [e]) and to examine and pass on applications for permits and for the approval of “land-use plans including mining and reclamation plans” (ECL 23-2709 [1] [c]). The statute contains the following provision with respect to the preemption of local laws: "For the purposes stated herein, this title shall supersede all other state and local laws relating to the extractive mining industry; provided, however, that nothing in this title shall be construed to prevent any local government from enacting local zoning ordinances or other local laws which impose stricter mined land reclamation standards or requirements than those found herein.” (ECL 23-2703 [2].)

In this appeal by the operator of a sand and gravel business, the question is whether the Mined Land Reclamation Law was intended to preempt the provisions of a town zoning law establishing a zoning district where a sand and gravel operation is not a permitted use. For reasons hereinafter stated, we agree with the Appellate Division that the statute was not intended to have this preemptive effect.

I

Petitioner obtained a permit from the Department of Environmental Conservation pursuant to ECL 23-2711 authorizing it to conduct a sand and gravel operation on its property at the intersection of Frew Run Road and Bain Road in the Town of Carroll, Chautauqua County — an area located within the AR-2 district under the town zoning ordinance. The stated purpose of the AR-2 district is "to promote maintenance of agricultural lands as well as to allow large lot residential development”. Consistent with this purpose, the ordinance allows specified residential and commercial uses as a matter of right in the AR-2 district and other such uses by special permit. Sand and gravel operations are not permitted at all in AR-2, although they are allowed by special permit in AR-3.

Upon receipt of a notice from the town’s zoning enforcement officer that its operation was prohibited, petitioner commenced the within proceeding to restrain the town and its officials from enforcing the ordinance. Special Term held that the town zoning ordinance designating a district where mining was not a permitted use was superseded by the express provisions of ECL 23-2703 (2). A unanimous Appellate Division reversed, holding that the town zoning law "is not a law 'relating to the extractive mining industry’ ” and to the extent that "the local law bars gravel and sand operations from an AR-II zone, it does not purport to regulate an industry. It simply seeks to regulate land use generally.” (125 AD2d 928, 929.) Petitioner appeals by leave of this court. There should be an affirmance.

II

The Legislature has simplified our determination of whether the Mined Land Reclamation Law preempts the provisions of the town zoning ordinance in question. Unlike preemption cases which require the court to search for indications of am implied legislative intent to preempt in the Legislature’s declaration of a State policy or in the comprehensive and detailed nature of the regulatory scheme established by the statute (see, e.g., Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99, 105; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347, 350-351; cf., Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91 [decided herewith]), we deal here with an express supersession clause (ECL 23-2703 [2]). The appeal turns on the proper construction of this statutory provision.

In ECL 23-2703 (2) the Legislature has provided that the Mined Land Reclamation Law shall supersede all "local laws relating to the extractive mining industry”. The question is whether the Town of Carroll Zoning Ordinance, in establishing districts in which some uses are permitted and others prohibited, is the sort of local law contemplated by the Legislature in this supersession provision. To find the answer, we look to the plain meaning of the phrase "relating to the extractive mining industry” as one part of the entire Mined Land Reclamation Law, to the relevant legislative history, and to the underlying purposes of the supersession clause as part of the statutory scheme (see, People v Hedgeman, 70 NY2d 533, 537; Price v Price, 69 NY2d 8, 13, 14).

Turning first to the statute’s plain meaning and reading the language in its natural and most obvious sense (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 94), we cannot interpret the phrase "local laws relating to the extractive mining industry” as including the Town of Carroll Zoning Ordinance. The zoning ordinance relates not to the extractive mining industry but to an entirely different subject matter and purpose: i.e., "regulating the location, construction and use of buildings, structures, and the use of land in the Town of Carroll, County of Chautauqua, State of New York and for said purposes dividing the Town into districts” (Town of Carroll Zoning Ordinance, art I, § 101). The purpose of a municipal zoning ordinance in dividing a governmental area into districts and establishing uses to be permitted within the districts is to regulate land use generally. In this general regulation of land use, the zoning ordinance inevitably exerts an incidental control over any of the particular uses or businesses which, like sand and gravel operations, may be allowed in some districts but not in others. But, this incidental control resulting from the municipality’s exercise of its right to regulate land use through zoning is not the type of regulatory enactment relating to the "extractive mining industry” which the Legislature could have envisioned as being within the prohibition of the statute ECL 23-2703 (2) (compare, Matter of Northeast Mines v State of New York Dept. of Envtl. Conservation, 113 AD2d 62, appeal dismissed 67 NY2d 917 [Town of Smithtown ordinance regulating the removal of earth and earth products and establishing maximum depths for excavation which was held to be superseded by ECL 23-2703 (2)]). This conclusion is consistent with the purposes and policy considerations underlying the Mined Land Reclamation Law, apparent upon an examination of the entire statute and the legislative history leading to its enactment.

The purposes of the statute are "to foster a healthy, growing mining industry” and "aid in assuring that land damaged by mining operations is restored to a reasonably useful and attractive condition” (Mem of Governor Wilson, June 15, 1974, filed with Assembly Bill 10463-A, Governor’s Bill Jacket, L 1974, ch 1043). The policy of the State, the Legislature has declared, is "to foster and encourage the development of an economically sound and stable mining and minerals industry” (ECL 23-2703 [1]). To further this policy, the Mined Land Reclamation Law was enacted to "establish the badly needed guidelines which would allow for the utilization of the state’s vast mineral resource based in a manner compatible with wise resource management” and to eliminate "[regulation on a town by town basis [which] creates confusion for industry and results in additional and unfair costs to the consumer” (Mem of Department of Environmental Conservation in support of Assembly Bill 10463-A, May 31, 1974, Governor’s Bill Jacket, L 1974, ch 1043). Thus, one of the statute’s aims is to encourage the mining industry by the adoption of standard and uniform restrictions and regulations to replace the existing "patchwork system of [local] ordinances” (id.). At the same time, the statute is intended to achieve a parallel and equally important purpose: meeting the environmental concerns created by the growing number of "derelict mining sites” through the establishment of controls and regulations to "provide for the reclamation of lands affected by mining for the purpose of returning such lands to other productive uses” (id.).

To give effect to these two legislative aims, the Mined Land Reclamation Law and the departmental regulations promulgated thereunder (see, ECL 23-2721; 6 NYCRR part 422) provide separate and different requirements for mining and for the reclamation of mined lands. The two activities are separately defined (ECL 23-2705 [8], [14]) and the statute and regulations require separate mined land-use plans (ECL 23-2713; 6 NYCRR 422.2) and reclamation plans (ECL 23-2715; 6 NYCRR 422.3). The mechanism created by the statute to accomplish these dual purposes makes clear that the Legislature intended in ECL 23-2703 (2) to prohibit any local regulation pertaining to actual mining activities, but not to preclude more stringent local laws pertaining to reclamation. Thus, ECL 23-2703 (2) contains a proviso that the statute shall not "be construed to prevent any local government from enacting local zoning ordinances or other local laws which impose stricter mined land reclamation standards or requirements than those found herein” (ECL 23-2703 [2] [emphasis added]). The Legislature has, in effect, provided "for a State-wide standard for regulation of the mining aspect of the industry’s operations, while recognizing the legitimate concerns of localities in the aftereffects of mining by permitting stricter local control of reclamation” (Matter of Northeast Mines v State of New York Dept. of Envtl. Conservation, 113 AD2d 62, 64-65, supra).

From the statutory scheme and the legislative history, it is evident that the sole purpose of the supersession provision (ECL 23-2703 [2]) is to prevent local governments from enacting laws which would conflict with or frustrate one or both of the statute’s purposes. Local regulations dealing with the actual operation and process of mining would frustrate the statutory purpose of encouraging mining through standardization of regulations pertaining to mining operations (see, Matter of Northeast Mines v State of New York Dept. of Envtl. Conservation, supra). Stricter local standards for the reclamation of mined lands, however, would be consistent with the statute’s over-all aim of protecting the environment. There is nothing in the Mined Land Reclamation Law or its history indicating that ECL 23-2703 (2) was intended to be given the preemptive effect petitioner urges; and, for that matter, nothing suggests that its reach was intended to be broader than necessary to preempt conflicting regulations dealing with mining operations and reclamation of mined lands.

Moreover, to read into ECL 23-2703 (2) an intent to preempt a town zoning ordinance prohibiting a mining operation in a given zone, as petitioner would have us, would drastically curtail the town’s power to adopt zoning regulations granted in subdivision (6) of section 10 of the Statute of Local Governments (L 1964, ch 205) and in Town Law § 261. Such an interpretation would preclude the town board from deciding whether a mining operation — like other uses covered by a zoning ordinance — should be permitted or prohibited in a particular zoning district (see, 1 Anderson, NY Zoning Law and Practice, §§ 2.04, 2.05, 2.06, 2.09, 2.13 [3d ed]; see generally, Wambat Realty Corp. v State of New York, 41 NY2d 490). In the absence of any indication that the statute had such purpose, a construction of ECL 23-2703 (2) which would give it that effect should be avoided. By simply reading ECL 23-2703 (2) in accordance with what appears to be its plain meaning— i.e., superseding any local legislation which purports to control or regulate extractive mining operations excepting local legislation prescribing stricter standards for land reclamation — the statutes may be harmonized, thus avoiding any abridgement of the town’s powers to regulate land use through zoning powers expressly delegated in the Statute of Local Governments § 10 (6) and Town Law § 261 (see, McKinney’s Cons Laws of NY, Book 1, Statutes §§ 370, 391, 398). This is the construction we adopt.

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

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

Order affirmed, with costs.

       The DEC permit contains the "general condition” that: "16. The issuance of this permit does not exempt the permittee from the need to obtain a local permit or approval where and when required” and the "special condition” that: "1. This permit shall not constitute a determination of validity or enforceability of the zoning ordinance of the Town of Carroll, with respect to the location of mines, nor of the applicability of such zoning to this action (see General Condition No. 16 above).” Thus, the DEC, in its issuance of the permit, has taken no position on the validity of the zoning ordinance.


author: Simons, J.

text:
    In the Matter of Vincent Lahey, Respondent, v Walter R. Kelly, as Superintendent of Attica Correctional Facility, et al., Appellants. In the Matter of Henry Gatson, Respondent, v Walter R. Kelly, as Superintendent of Attica Correctional Facility, et al., Appellants. In the Matter of Harold Wiggins, Respondent, v Walter R. Kelly, as Superintendent of Attica Correctional Facility, et al., Appellants. In the Matter of Ronald Green, Respondent, v Walter R. Kelly, as Superintendent of Attica Correctional Facility, et al., Appellants. In the Matter of Donat Reid, Respondent, v Walter R. Kelly, as Superintendent of Attica Correctional Facility, et al., Appellants. In the Matter of Oscar Carrion, Respondent, v Walter R. Kelly, as Superintendent of Attica Correctional Facility, et al., Appellants. In the Matter of Michael McClanahan, Respondent, v Walter R. Kelly, as Superintendent of Attica Correctional Facility, et al., Appellants.
    Argued November 18, 1987;
    decided December 23, 1987
    Decided December 23, 1987

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Peter H. Schiff, O. Peter Sherwood and Martin A. Hotvet of counsel), for appellants in the first five above-entitled proceedings.
    I. Substantial evidence supports a prison disciplinary determination that a prisoner used marihuana where the evidence offered was two positive EMIT system results from the testing of his urine. (Block v Rutherford, 468 US 576; People v Hughes, 59 NY2d 523; People v Middleton, 54 NY2d 42; People v Magri, 3 NY2d 562; Peranzo v Coughlin, 608 F Supp 1504; Matter of Vasquez v Coughlin, 118 AD2d 897; People ex rel. Vega v Smith, 66 NY2d 130; Harmon v Auger, 768 F2d 270; American Fedn. of Govt. Employees v Weinberger, 651 F Supp 726; National Fedn. of Fed. Employees v Weinberger, 640 F Supp 642; Jensen v Lick, 589 F Supp 35.) II. A new hearing is the appropriate remedy if the orders below are otherwise affirmed. (Matter of Jane PP. v Paul QQ., 65 NY2d 994; Matter of Coleman v Coombe, 65 NY2d 777; People ex rel. Martinez v New York State Bd. of Parole, 56 NY2d 588; Matter of Jennings v

      Coughlin, 99 AD2d 635; Matter of Batista v Kuhlmann, 90 AD2d 934; Matter of Kincaide v Coughlin, 86 AD2d 893, 57 NY2d 682.)

      Norman P. Effman and Leigh E. Anderson for respondents in the first five above-entitled proceedings.
    I. The New York State Department of Correctional Services cannot impose disciplinary sanctions against inmates where the sole evidence presented is the prison-administered EMIT urinalysis test. (Block v Rutherford, 468 US 576; People ex rel. Vega v Smith, 66 NY2d 130; Peranzo v Coughlin, 608 F Supp 1504; People v Gower, 42 NY2d 117; People v Mertz, 68 NY2d 136; Matter of Brown v Smith, 132 Misc 2d 686; People v Middleton, 54 NY2d 42.) II. Petitioners-respondents were denied minimal due process of law where the written notice of the charges was so vague as to deny them the opportunity to marshal the facts and prepare a defense. (Wolff v McDonnell, 418 US 539; People ex rel. Roides v Smith, 67 NY2d 899.) III. Nullification and expungement is the appropriate remedy. (Matter of Coleman v Coombe, 65 NY2d 777; Matter of Vogelsang v Coombe, 105 AD2d 913, 66 NY2d 835.)

      Robert Abrams, Attorney-General (Peter H. Schiff, O. Peter Sherwood and Martin A. Hotvet of counsel), for appellants in the sixth and seventh above-entitled proceedings.

      Norman P. Effman and Susan K. Jones for respondents in the sixth and seventh above-entitled proceedings.
   OPINION OF THE COURT

Simons, J.

The issue presented in each of these seven prison disciplinary proceedings is whether the results of Syva Emit-st Drug Detection System Tests, known as EMIT tests, can constitute substantial evidence to support respondents’ determination finding an inmate guilty of violating a rule prohibiting the use of a controlled substance. We hold that in each case the positive results of an EMIT test, when confirmed with the results of a second EMIT test, constitutes substantial evidence to support the determination. Accordingly, in each proceeding the judgment of the Appellate Division annulling respondents’ determination should be reversed and the petition dismissed.

In each of these disciplinary proceedings, the petitioner was charged with violating inmate rule 113.12 (7 NYCRR 270.1 [b] [14] [iv]), prohibiting the use of narcotics. In support of the charges, respondents relied on the positive results of two EMIT tests performed on the petitioners’ urine. The results were admitted into evidence based on a documentary foundation consisting of a request for urinalysis test form, a urinalysis procedures form, a printed result card produced by the testing apparatus and a report prepared by the manufacturer of the EMIT test, explaining the nature of the test, its limitations and its reliability. In the reliability section of the report, it is stated that the Center for Disease Control in Atlanta, Georgia, has conducted surveys since 1972 on the reliability of the different analytical methods of drug testing. Specifically, the report states that "Emit tests have been shown to be among the most consistently accurate drug testing methods in current use” with recently published data showing that the percentage of correct results from EMIT tests ranged from 97% (for amphetamines, barbiturates, morphine and phencyclidine) to 99% (for cocaine and methadone).

In Lahey, Gatson, Wiggins, Green and Reid, the inmate misbehavior report specifies the suspicious activity or circumstance that warranted the imposition of the drug test. For example in Lahey, the report states that the inmate was requested to submit to a urinalysis test after he and four other inmates were seen by a correction officer smoking and passing what appeared to be a marihuana cigarette. In McClanahan and Carrion, the misbehavior report states that the test was performed as a routine matter following petitioner’s participation in the Family Reunion Program.* 2Each petitioner was permitted to introduce evidence at a prison disciplinary hearing in an effort to explain the positive tests results. Several of the inmates stated that they were taking other medications and suggested that this may have caused the positive test results. Respondents found each petitioner guilty of violating the rule and assessed penalties ranging from 30 days keeplock and loss of phone privileges to four months loss of participation in the Family Reunion Program.

Petitioners thereafter commenced these article 78 proceedings seeking to annul the determinations. In Lahey, Gatson, Wiggins, Green and Reid, Supreme Court, Wyoming County, granted the petitions and expunged from the record any reference to the alleged violation of the drug use rule. In Carrion and McClanahan, Supreme Court transferred the proceeding to the Appellate Division, Fourth Department.

Considering each case as if it had been properly transferred pursuant to CPLR 7804 (g), the Appellate Division, Fourth Department, annulled the determinations and expunged any reference to the alleged drug use from petitioners’ records, stating in the lead case Matter of Lahey v Kelly, that the record contained insufficient evidence to establish the reliability, and thus the admissibility of the EMIT test results. Because the Fourth Department and the Third Department (see, Matter of Vasquez v Coughlin, 118 AD2d 897) had reached different results on the use of EMIT tests, we granted respondents leave to appeal.

It is well established that in order to annul an administrative determination made after a constitutionally required hearing a court must be satisfied, after reviewing the record as a whole, that the record lacks substantial evidence to support the determination (Matter of Berenhaus v Ward, 70 NY2d 436; People ex rel. Vega v Smith, 66 NY2d 130, 139; 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180; CPLR 7803 [4]). "While the quantum of evidence that rises to the level of 'substantial’ cannot be precisely defined, the inquiry is whether 'in the end the finding is supported by the kind of evidence on which responsible persons are accustomed to rely in serious affairs’ ” (People ex rel. Vega v Smith, supra, at 139, quoting National Labor Relations Bd. v Remington Rand, 94 F2d 862, 873).

In each of these cases, the results of the EMIT drug tests were the sole evidence used to support the ultimate conclusion that the inmate had used illegal narcotics. Thus, to determine if there is substantial evidence to support the determinations it is necessary to examine the reliability of the EMIT drug test.

EMIT is an acronym for enzyme multiple immunoassay technique. An EMIT test does not measure the amount of drugs in the urine directly, but instead measures the reaction of an enzyme to a specified drug. The major advantages of the EMIT test are that it is quick, relatively inexpensive, and can be operated by people who are not scientific experts. The system works on a biochemical principle. Certain antibodies are added to the urine specimen and the reactions which result produce a substance which can be compared to known values through a device known as a photometer. Within 90 seconds the photometer prints on the result card whether the sample is positive or negative for the drug in question. If the initial EMIT test turns up negative, no further action is taken. If, however, the test results are positive, a second test is conducted. If the second test is also positive then a misbehavior report charging a violation of rule 113.12 is prepared by the correction officer who performed the second test.

Petitioners’ concession that they challenge neither the right nor the duty of the Department of Correctional Services to use the EMIT test to address the serious problem of narcotics abuse in State correctional facilities helps to frame the issue. Essentially, petitioners argue that although EMIT tests may be employed in prison disciplinary proceedings, unless the positive tests results are confirmed with an independent method of drug testing, they do not constitute substantial evidence to support a determination that an inmate has violated the rule against using narcotics.

To determine reliability of the EMIT tests, we turn first to the most recent litigation involving their use, the Federal action of Peranzo v Coughlin.

In 1984, inmates subject to the jurisdiction of the New York State Department of Correctional Services filed a class action in the United States District Court for the Southern District of New York, alleging that EMIT urinalysis drug testing was so unreliable that use of such results as the sole evidence of guilt in disciplinary proceedings was a violation of due process of law. Each of the petitioners on these appeals was, as a member of the class, a plaintiff in the Federal action. Initially, the District Court denied the plaintiffs’ motion for a preliminary injunction and denied defendant correction officials’ cross motion to dismiss the complaint for failure to state a claim upon which relief could be granted (Peranzo v Coughlin, 608 F Supp 1504). Instead, the court requested that a study of the reliability of EMIT testing, as performed by the Department of Correctional Services be undertaken. Such studies were conducted and the results completed and based upon the conclusions of the report, District Court granted the Department’s motion for summary judgment and dismissed the Peranzo action (Peranzo v Coughlin, 675 F Supp 102, Sand, J.).

The study of the New York State Department of Correctional Services’ procedures for testing urine samples was conducted under the auspices of the American Association of Bioanalysts (AAB). In this study participants such as the New York State Department of Correctional Services rehydrated dried urine samples provided by the AAB, tested the samples, and returned their findings to the AAB. The AAB knew prior to sending out the samples whether they contained drugs, and thus could monitor the reliability of the participants’ testing procedures. In the Peranzo action, the Department of Correctional Services submitted to the court the results of some 3,067 proficiency tests performed by Department of Correctional Services personnel, including 730 tests in which a Department facility had found some specified drug to be present. In only nine instances did a facility find a drug to be present when the reference laboratory found it "absent”. These proficiency reports indicated that Department of Correctional Services facilities have an accuracy rate of over 99.7%, if one considers all 3,067 tests, or of 98.7%, if one considers only the 730 positive tests. Based upon this study the District Court held that the results of an EMIT test, when confirmed with a second EMIT test or its functional equivalent, were sufficiently reliable to satisfy Federal due process guarantees; use of an alternative testing method to confirm the positive EMIT test was not required.

The results of the AAB study are persuasive because they relate specifically to the New York State correctional facilities and confirm the approach taken by the overwhelming majority of State and Federal courts which have considered the reliability of the EMIT drug test results (see, e.g., Spence v Farrier, 807 F2d 753, 756 [8th Cir] [EMIT test, with a confirmatory second EMIT or other test, contains sufficient indicia of reliability to provide evidence of drug use]; Harmon v Auger, 768 F2d 270, 276 [8th Cir] [EMIT test results are "about 95% accurate” and form a sufficient basis for disciplinary action]; Wykoff v Resig, 613 F Supp 1504, 1512 [ND Ind] [a positive EMIT test confirmed by a second Emit test or its equivalent satisfies due process]; Jensen v Lick, 589 F Supp 35 [D ND] [unconfirmed EMIT test results satisfy due process]; see also, Hoeppner v State of Iowa, 379 NW2d 23, 25 [Iowa App]; Smith v State, 250 Ga 438, 298 SE2d 482). Although some lower courts have taken a different view concerning the reliability of the EMIT tests, those cases, as noted by the dissent below, are factually distinguishable because most involve a single unconfirmed test (e.g., Higgs v Wilson, 616 F Supp 226 [WD KY], vacated sub nom. Higgs v Bland, 793 F2d 1291; Wilson v State, 697 SW2d 83 [Tex Ct App]; Kane v Fair, 33 Crim L Rptr 2492 [Mass Super Ct]). When two tests are performed on the same sample, as was done in the cases before us, the results are significantly more reliable (see, Higgs v Wilson, supra, at 231).

It is also important to note that in determining the reliability of the EMIT tests, we are only concerned with false positives, not false negatives. Otherwise stated, if one or both of the two drug tests fail to reveal the presence of a controlled substance, even though inmates have actually used drugs, the inaccuracy of the test does not work any injustice against them. It is for this reason that the results reported in Matter of Brown v Smith (132 Misc 2d 686), upon which the trial court relied in some of these cases, are misleading. In Brown, Supreme Court, Wyoming County, examined the log of urine tests run at Attica Correctional Facility on July 27, 1984. Out of 20 urine samples tested eight specimens yielded positive test results after the first test. Of these eight only three yielded positive results in the second operator’s test. Thus, Supreme Court found the test was unreliable because positive test results reached on the first test were duplicated only 37.5% of the time. No disciplinary action resulted in those cases, however, because the Department requires two positive results before disciplinary action based solely on the results of the EMIT tests can be instituted. There were no statistics reported in Brown which supported the trial court’s conclusion that when two tests conducted by Department officials turn up positive, there remains a measurable chance that the inmate did not use drugs (see, Peranzo v Coughlin, 608 F Supp 1504, 1512, n 14, supra).

Based upon the AAB study reported in the Peranzo litigation, and the overwhelming acceptance of the reliability of the EMIT test when confirmed with a second test, we hold that positive EMIT test results when confirmed by a second EMIT test or its equivalent, are sufficiently reliable to constitute substantial evidence to support a determination by respondent that an inmate has used illegal drugs.

Petitioners contend that the results of the EMIT tests should not be admissible in these proceedings because the State did not prove the reliability of the tests before Special Term or in any of the various disciplinary hearings. The Appellate Division, ruling before the Peranzo decision (675 F Supp 102, Sand, J., supra), agreed. Neither expert testimony nor detailed findings by the scientific community are essential before scientific tests or procedures are recognized, however. The court may find scientific tests reliable based on the general acceptance of the procedures as shown through legal writings and judicial opinions (see, People v Middleton, 54 NY2d 42, 49-50 [bite mark evidence]; People v Magri, 3 NY2d 562, 566 [radar]). We find both the Peranzo studies and the opinions of several other courts which have passed on the reliability of the Syva Emit-st Drug Detection System Tests persuasive and conclude such tests may be used to discover drugs in the body.

Finally, petitioners offer an alternative ground for affirmance. They argue that they were deprived of due process because the inmate misbehavior report did not specifically apprise them of the exact time and place that they allegedly used marihuana and thus gave them no ability to prepare an adequate defense. More accurately, petitioners contend that the rule which prohibits the use of controlled substances can only be enforced if in fact a correction officer or other inmate testifies or states in a verified report that the accused was actually seen using drugs at a certain time and place. As a practical matter, acceptance of such an argument would defeat the purpose of respondents’ drug testing program — enacted because detection of drug use by existing methods was deemed inadequate to meet a pressing drug problem in correctional facilities. When the substantive offense prohibits drug use generally, due process does not require that the inmate be informed of the exact time and place that he allegedly used the illegal drugs (see, Harmon v Auger, 768 F2d 270, 276, supra; Smith v Rabalais, 659 F2d 539 [5th Cir]). Even without such specific notice an inmate can still present an adequate defense by offering an explanation for the results, as several did here when they claimed the result was caused by use of a prescribed medication; can challenge the procedures followed in performing the test; and can challenge whether the test was authorized under the grounds stated in 7 NYCRR 1020.4.

Accordingly, the judgments of the Appellate Division in each proceeding should be reversed, without costs, and the petitions dismissed.

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

In Matter of Lahey v Kelly: Judgment reversed, etc.

In Matter of Gatson v Kelly: Judgment reversed, etc.

In Matter of Wiggins v Kelly: Judgment reversed, etc.

In Matter of Green v Kelly: Judgment reversed, etc.

In Matter of Reid v Kelly: Judgment reversed, etc.

In Matter of Carrion v Kelly: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment reversed, etc.

In Matter of McClanahan v Kelly: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment reversed, etc.

      . Generally, 7 NYCRR 1020.4 authorizes urinalysis tests of inmates if (1) the staff has reason to believe an inmate has ingested drugs or alcohol, (2) when an inmate is observed or found in possession of drugs or alcohol, (3) when the staff receives reliable information the inmate is under the influence of drugs or alcohol, (4) when an inmate returns from furlough, a family reunion visit, community services or an outside work detail or (5) is part of a random testing program of the facility or a unit or program area of the facility.

      . The Attorney-General has not claimed that the Federal decision has res judicata effect in these proceedings and, therefore, we do not decide the issue.


author: Hancock, Jr., J

text:
    In the Matter of Newsday, Inc., Appellant, v Robert J. Sise, as Chief Administrative Judge of the Office of Court Administration of the State of New York, et al., Respondents.
    Argued November 12, 1987;
    decided December 23, 1987

      POINTS OF COUNSEL

      Robert Lloyd Raskopf Andrew L. Hughes and Mary P. Gallagher for appellant.
    I. The New York Freedom of Information Law requires that Newsday be granted access to public records that contain the names and addresses of the jurors in the Patterson murder trial. (Matter of Fink v Lefkowitz, 47 NY2d 567; Matter of Capital Newspapers v Whalen, 69 NY2d 246; Matter of Konigsberg v Coughlin, 68 NY2d 245; Matter of Capital Newspapers v Burns, 67 NY2d 562; Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75; Kuzma v I.R.S., 775 F2d 66; Carpenter v City of Plattsburgh, 105 AD2d 295, 66 NY2d 791; Matter of Herald Co. v Roy, 107 AD2d 515, 65 NY2d 610, 922.) II. Records containing juror names and addresses should be disclosed even if they are "court records”. (Nixon v Warner Communications, 435 US 589; Associated Press v U.S. Dist. Ct., 705 F2d 1143; Matter of National Broadcasting Co., 635 F2d 945; United States v Carpentier, 526 F Supp 292; Bank of Am. Natl. Trust & Sav. Assn. v Hotel Rittenhouse Assocs., 800 F2d 339; Matter of Cline v Board of Trustees, 76 Misc 2d 536, 45 AD2d 823; Matter of Werfel v Fitzgerald, 23 AD2d 306; Globe Newspaper Co. v Superior Ct., 457 US 596; Richmond Newspapers v Virginia, 448 US 555; People v Christopher, 109 Misc 2d 767.)

      Megan Tallmer and Michael Colodner for respondents.
    I. Pursuant to the requirement of section 509 (a) of the Judiciary Law, records used in or generated by the juror selection process, including names and home addresses of jurors derived from juror questionnaires, are confidential and may be disclosed only by permission of the Appellate Division. (People v Perkins, 125 AD2d 816; Matter of Herald Co. v Roy, 107 AD2d 515; People v Guzman, 60 NY2d 403; United States v Harrelson, 713 F2d 1114, cert denied sub nom. El Paso Times v United States, 465 US 1041; United States v Gurney, 558 F2d 1202, cert denied sub nom. Miami Herald Publ. Co. v Krentzman, 435 US 968; United States v Barnes, 604 F2d 121, 446 US 907.) II. The records sought by appellant are not subject to disclosure under the Freedom of Information Law. (Matter of Pasik v State Bd. of Law Examiners, 114 Misc 2d 397, 102 AD2d 395; Matter of Krauss v Nassau Community Coll., 122 Misc 2d 218; Matter of Westchester Rockland Newspaper v Kimball, 72 AD2d 606, 50 NY2d 575.) III. Neither the constitutional right of access to criminal trials nor the common-law right to access to judicial records is violated by respondents’ insistence that appellant comply with the requirement of section 509 (a) of the Judiciary Law for obtaining records of jurors’ names and home addresses. (United States v Yonkers Bd. of Educ., 747 F2d 111; Matter of Herald Co. v Roy, 107 AD2d 515; People v McLoughlin, 122 Misc 2d 891, 104 AD2d 320, 65 NY2d 687; Matter of New York Post Corp. v Leibowitz, 2 NY2d 677; Matter of Werfel v Fitzgerald, 23 AD2d 306; Nixon v Warner Communications, 435 US 589; Matter of National Broadcasting Co., 635 F2d 945; United States v Gurney, 558 F2d 1202; United States v Beckham, 789 F2d 401; Bank of Am. Natl. Trust & Sav. Assn. v Hotel Rittenhouse Assocs., 800 F2d 339.)
   OPINION OF THE COURT

Hancock, Jr., J

Under the Freedom of Information Law (FOIL) records which have been "specifically exempted from disclosure” by other State or Federal statutes need not be made available for public inspection (Public Officers Law § 87 [2] [a]). Judiciary Law § 509 (a) provides that the Commissioner of Jurors shall determine the qualifications of prospective jurors based, among other things, on information contained in the juror qualification questionnaires and that "[s]uch questionnaires * * * shall not be disclosed except to the county jury board or as permitted by the appellate division.” The issue here is whether records containing the names and addresses of jurors obtained from such questionnaires are within the exemption from disclosure under Judiciary Law § 509 (a). For the following reasons, we hold that they are.

I

Petitioner, Newsday, Inc., is the publisher of a daily newspaper. During June and July 1984, it ran a series of articles covering the highly publicized William Patterson murder trial. During the trial Newsday made both an oral and a written request to respondent Hennessey, the Commissioner of Jurors of Suffolk County, that he provide the names and addresses of the jurors who had been selected to sit on the Patterson trial. The Commissioner refused both requests on the advice of counsel for the Office of Court Administration (OCA) that such information was outside of the scope of FOIL because it was specifically exempted from disclosure by Judiciary Law § 509 (a).

A mistrial was granted in the Patterson trial when the jury was unable to reach a verdict. Newsday then filed another request for the jurors’ names and home addresses, noting that it did not seek disclosure of the juror qualification questionnaires themselves, which it admitted were exempt from disclosure under FOIL, but other records maintained by the Commissioner containing the names and addresses of the jurors chosen to serve on the first Patterson trial. Newsday’s request was forwarded to counsel for OCA who advised that it should be denied on, among other grounds, the specific exemption from FOIL disclosure created by the confidentiality provision in Judiciary Law § 509 (a).

Upon the Commissioner’s refusal to provide access to the records, Newsday commenced this CPLR article 78 proceeding to compel disclosure of them. In its petition, Newsday contended it had the right to inspect these records under FOIL, under the common-law right of access to judicial records, and under the First Amendment right of access to criminal trials. Supreme Court held that Judiciary Law § 509 (a) exempts such records from disclosure and dismissed the petition without prejudice to renewal on a separate application for a court order for disclosure pursuant to Judiciary Law § 509 (a). The Appellate Division unanimously affirmed stating that the statute "renders confidential all records used in or generated by the juror selection process” (120 AD2d, at 12) — not merely the juror qualification questionnaires — and that to hold otherwise would defeat the statute’s underlying purpose. We granted leave to appeal and now affirm the order of the Appellate Division.

II

The Legislature enacted FOIL to provide the public with a means of access to governmental records in order to encourage public awareness and understanding of and participation in government and to discourage official secrecy (see, Public Officers Law § 84; Matter of Capital Newspapers v Whalen, 69 NY2d 246, 252; Matter of Fink v Lefkowitz, 47 NY2d 567, 571). To achieve this purpose, we have held "that FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government” (Matter of Capital Newspapers v Whalen, supra, at 252; see, Matter of Scott, Sardano & Pomeranz v Records Access Officer, 65 NY2d 294, 296-297; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 564). Here, respondents rely on the exception which allows denial of access to records which are "specifically exempted from disclosure” by statute (Public Officers Law § 87 [2] [a]).

Petitioner, while conceding that Judiciary Law § 509 (a) could, in a proper case, provide a specific exemption from FOIL disclosure under Public Officers Law § 87 (2) (a), argues that the exemption is limited to the questionnaires themselves, and that Judiciary Law § 509 (a) does not cover records derived from or containing the information included in the questionnaires. Thus, the question before us involves only the interpretation of Judiciary Law § 509 (a) and the reach of its provision for confidentiality. If a record is within the confidentiality provision of Judiciary Law § 509 (a) it is necessarily exempt under FOIL.

Ill

Judiciary Law § 500 states that it is this State’s policy to provide all litigants with the right to trial by a jury randomly selected from a fair cross-section of the community. In order to achieve this goal, Judiciary Law article 16 creates a detailed procedure for selection of jurors which necessitates, among other things, that the Commissioner of Jurors be made privy to details of jurors’ personal lives obtained through the juror qualification questionnaires (see, Judiciary Law § 509 [a]; § 513; People v Guzman, 60 NY2d 403, 414-415). Recognizing that many prospective jurors would be averse to having these details made public and that disclosure could result in harassment of jurors or attempts at retribution or intimidation, the Legislature has provided that the questionnaires be kept confidential and exempt from disclosure except upon an application made pursuant to Judiciary Law § 509 (a).

While Judiciary Law § 509 (a) refers only to the juror qualification questionnaires, its obvious purpose is to provide a cloak of confidentiality for the information which the questionnaires contain. It is the knowledge about the jurors — the private details obtained from the questionnaires concerning their spouses’ names, the names and ages of their children, their home telephone numbers, occupations, educational backgrounds, and criminal records, if any — which the statute is designed to protect from public disclosure (see, Matter of Herald Co. v Roy, 107 AD2d 515, 520; see also, People v Perkins, 125 AD2d 816, 817-818). Petitioner’s interpretation— that the statute exempts from disclosure only the actual questionnaires — could not have been intended. It is the information from the questionnaires, not the forms themselves which, if made public, could invade the jurors’ privacy interests or threaten their safety and that information, therefore was made confidential. Because petitioner’s proposed construction would defeat the very purpose of the statute and render it ineffective it must be rejected (see, McKinney’s Cons Laws of NY, Book 1, Statutes §§ 92, 96, 144). We hold, then, that Judiciary Law § 509 (a) shields from disclosure not only the juror qualification questionnaires but also those portions of other records containing information obtained from the questionnaires.

Petitioner contends that even if Judiciary Law § 509 (a) is read to protect records derived or containing information from the juror qualification questionnaires, the statute should not be construed to protect the information sought here — the jurors’ names and addresses — because release of such information would not invade the jurors’ privacy interests or threaten their safety. The statute, itself, when read in the light of what we find to be its underlying purpose shows the argument to be without merit. In enacting Judiciary Law § 509 (a), the Legislature exempted all information contained in the questionnaires regardless of its nature and the possible effect on privacy or safety interests which disclosure might cause. The Legislature has permitted an application for a court order, upon a proper showing, that particular information contained in the questionnaires should be made public. To what extent disclosure of specified information might affect jurors’ privacy and safety interests is a factor that the court must balance against the interests favoring disclosure in determining whether to grant a Judiciary Law § 509 (a) application (see, People v Guzman, supra, at 415). Such considerations, however, are not relevant to the legal questions here: the interpretation of Judiciary Law § 509 (a) and the meaning and effect to be given its confidentiality provision.

Finally, petitioner argues that because the names and addresses have already been made public during voir dire, granting their release in this petition could result in no further invasion of their privacy interests. From the record, however, it clearly appears that, in voir dire, the home addresses of the jurors were not disclosed — only the general area where they lived (see also, Matter of Herald Co. v Roy, 107 AD2d 515, 518, supra). Moreover, that some of the information sought may have been orally revealed during the jury selection process, cannot alter the effect of Judiciary Law § 509 (a) in categorically prohibiting the public disclosure of any records containing information obtained from the juror questionnaires.

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

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

Order affirmed, with costs.

      . The Commissioner also cited the following three reasons for denying petitioner’s request: (1) the records of the Commissioner of Jurors involving juror names and addresses are court records (see, Public Officers Law §86 [3]), (2) the release of the records would constitute an unwarranted invasion of the jurors’ personal privacy (see, Public Officers Law § 87 [2] [b]), and (3) the disclosure would endanger the jurors’ lives or safety (see, Public Officers Law § 87 [2] [f]). In view of our holding, we need not address these contentions.

      . Judiciary Law § 509 (a) makes specific provision for disclosure "as permitted by the appellate division”. The relief sought in the CPLR article 78 proceeding here is a judgment compelling disclosure. No application has been made for a court order under Judiciary Law § 509 (a).

      . Judiciary Law § 509 (a) provides: "(a) The commissioner of jurors shall determine the qualifications of a prospective juror on the basis of information provided on the juror’s qualification questionnaire. The commissioner of jurors may also consider other information including information obtained from public agencies concerning previous criminal convictions. A record of the persons who are found not qualified or disqualified or who are exempted or excused, and the reasons therefor, shall be maintained by the commissioner of jurors. The county jury board shall have the power to review any determination of the commissioner as to qualifications, disqualifications, exemptions and excuses. Such questionnaires and records shall be considered confidential and shall not be disclosed except to the county jury board or as permitted by the appellate division” (emphasis added).

      . [2] We also reject petitioner’s assertion that it is entitled to the jurors’ names and addresses under the public’s constitutional right of access to criminal proceedings and under the common-law right of access to judicial records. Inasmuch as petitioner has not contended that it has been denied access to any judicial proceedings or to any transcripts of any proceedings, petitioner’s constitutional right of access has not been violated (see, Matter of Herald Co. v Roy, 107 AD2d 515, 517; United States v Beckham, 789 F2d 401, 406-409 [6th Cir]; United States v Yonkers Bd. of Educ., 747 F2d 111, 112-114 [2d Cir]; cf., Matter of Associated Press v Bell, 70 NY2d 32; Press-Enterprises Co. v Superior Ct., 464 US 501). In addition, petitioner has no common-law right of access where records, such as these, have not been entered into evidence or filed in court and are, therefore, not public judicial records (see, United States v Beckham, supra; United States v Gurney, 558 F2d 1202 [5th Cir]; cf., Bank of Am. Natl. Trust & Sav. Assn. v Hotel Rittenhouse Assocs., 800 F2d 339, 343 [3d Cir]).