text:
    300 Gramatan Avenue Associates, Respondent v State Division of Human Rights (Complaint of Harold Johnson), Appellant.
    Argued June 9, 1978;
    decided July 13, 1978

      POINTS OF COUNSEL

      Alan J. Saks and Ann Thacher Anderson for appellant.
    I. The determination of discrimination is supported by substantial evidence in the hearing record. (State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201, 420 US 915.) II. The $500 damages award is not erroneous as a matter of law, thus, it must be sustained on judicial review. (State Comm. for Human Rights v Speer, 29 NY2d 555; Matter of Mize v State Div. of Human Rights, 33 NY2d 53; Batavia Moose Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 43 AD2d 807, 35 NY2d 143; State Div. of Human Rights v Varsity Inn of Rochester, 49 AD2d 698; Matter of Maloff v City Comm. on Human Rights, 58 AD2d 789.)

      Louis I. Kravitz for respondent, precluded.
   OPINION OF THE COURT

Cooke, J.

Petitioner, 300 Gramatan Avenue Associates, owns an apartment building with about 96 units in the City of Mount Vernon. In March of 1975, one of its tenants, Frank Interdonti, a postal worker, told Harold Johnson, a Black friend who served as passport agent and registry clerk at the same post office, that there was an apartment available upstairs at his address. Johnson went to the premises on March 10, 1975, examined a vacant five-room apartment and, after talking with the superintendent, attempted to rent it. Told a bit later that day that the apartment was "under litigation” and not available for rental, Johnson filed a complaint two days later with the State Division of Human Rights.

The commissioner of said division, after a hearing, determined that petitioner, in violation of the Human Rights Law, had discriminated against Johnson because of his race and color, by refusing to consider him as a prospective tenant for an available apartment. The State Human Rights Appeal Board affirmed. In a proceeding under section 298 of the Executive Law to review the order of the appeal board, the Appellate Division, one Justice dissenting, held that the determination of the commissioner as affirmed by the board was not supported by substantial evidence and that the findings made were arbitrary and capricious, granted the petition of the owner, on the law, annulled the order and dismissed the complaint.

Underlying this appeal is the issue of whether the order of the commissioner was "supported by substantial evidence on the whole record”, to which the review of the appeal board was limited (Executive Law, § 297-a, subd 7, par d; see, also, par e). If the findings of fact, on which the order of the appeal board was based, were "supported by sufficient evidence on the record considered as a whole”, we are directed by statute that they are conclusive and that order should not be disturbed (Executive Law, § 298; City of Schenectady v State Div. of Human Rights, 37 NY2d 421, 424).

Generally speaking, upon a judicial review of findings made by an administrative agency, a determination is regarded as being supported by substantial evidence when the proof is "so substantial that from it an inference of the existence of the fact found may be drawn reasonably” (Matter of Stork Rest. v Boland, 282 NY 256, 273; Labor Bd. v Columbian Co., 306 US 292, 299; see 1 Benjamin, Administrative Adjudication in New York 328-340; Advisory Comm. on Practice and Procedure [2d Preliminary Rep, 1958] 399). This general rule, this statement of meaning, likewise applies to a judicial examination of findings of the State Commissioner of Human Rights (Matter of Holland v Edwards, 307 NY 38, 44). So too, where there is room for choice, neither the weight which might be accorded nor the choice which might be made by a court are germane upon an analysis for the presence of substantial evidence before the commissioner (State Div. of Human Rights v Columbia Univ. in City of N. Y., 39 NY2d 612, 616; Matter of Stork Rest. v Boland, 282 NY 256, 267, supra).

The concept of substantial evidence, a term of art as related to administrative decision making, is rather easily verbalized but, when put to use in respect to a particular determination, frequently causes difficulty and disagreement, as witnessed here by the divergence at the Appellate Division (see Matter of Stork Rest. v Boland, 282 NY 256, 274, supra; see, also, Matter of Paulsen [Catherwood], 27 AD2d 493, 495). It is related to the charge or controversy and involves a weighing of the quality and quantity of the proof (Matter of Di Nardo v Monaghan, 282 App Div 5, 7; McCormick, Evidence [2d ed], § 352); it means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact (New York State Labor Relations Bd. v Shattuck Co., 260 App Div 315, 317). Essential attributes are relevance and a probative character (Edison Co. v Labor Bd., 305 US 197, 229; Matter of Ralph v Board of Estimate of City of N. Y., 306 NY 447, 454). Marked by its substance — its. solid nature and ability to inspire confidence, substantial evidence does not rise from bare surmise, conjecture, speculation or rumor (cf. Matter of Milea v Easy Appliance Div., Murray Corp., 29 AD2d 730). More than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt (see People ex rel. Consolidated Water Co. v Maltbie, 275 NY 357, 370; Matter of Erin Wine & Liq. Store v O’Connell, 283 App Div 443, 446, affd 307 NY 768; Matter of Paulsen [Catherwood], 27 AD2d 493, 495, supra; cf. State v Randecker, 79 Wn 2d 512, 517-518; District of Columbia v Heman Ward, Inc., 261 A2d 836, 840 [DC]).

Whether an administrative agency determination is shored up by substantial evidence is a question of law to be decided by the courts (Matter of Clark v Board of Zoning Appeals of Town of Hempstead, 301 NY 86, 90-91, cert den 340 US 933; Matter of McGuinn v Woolworth Co., 277 App Div 1066), it having been stated with some frequency that insufficient evidence is, in the eyes of the law, no evidence (Matter of Case, 214 NY 199, 203-204; Matter of 54 Cafe & Rest, v O’Connell, 274 App Div 428, 431). Judicial review of the determination made by an administrative agency, such as the State Division of Human Rights, is limited to a consideration of whether that resolution was supported by substantial evidence upon the whole record (Matter of Holland v Edwards, 307 NY 38, 44, supra; see State Administrative Procedure Act, § 302, subd 3; § 306, subd 1; CPLR 7803, subd .4; Matter of Kelly v Murphy, 20 NY2d 205, 209); and allowance may not be made for information outside of it (Matter of Simpson v Wolansky, 38 NY2d 391, 396). A practical test, employed in ascertaining whether the proof is "so substantial that from it an inference of the existence of the fact found may be drawn reasonably”, is found in measuring the evidence against the standard of sufficiency such as to require a court to submit it as a question of fact to a jury (Matter of Stork Rest. v Boland, 282 NY 256, 273, supra; Erin Wine & Liq. Store v O’Connell, 283 App Div 443, 446-447, affd 307 NY 768, supra).

A court reviewing the substantiality of the evidence upon which an administrative agency has acted exercises a genuine judicial function and does not confirm a determination simply because it was made by such an agency (Matter of McCormack v National City Bank, 303 NY 5, 8-9). In final analysis, substantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably — probatively and logically (cf. Matter of Di Nardo v Monaghan, 282 App Div 5, 7, supra; Matter of Thomas v Codd, 51 AD2d 418, 420; Matter of Phinn v Kross, 8 AD2d 132, 137; 24 Carmody-Wait 2d, Proceeding Against Body or Officer, § 145:350). Put a bit differently, "the reviewing court should review the whole record to determine whether there is a rational basis in it for the findings of fact supporting the agency’s decision” (McCormick Evidence [2d ed], § 352, p 847; see Matter of Pell v Board of Educ., 34 NY2d 222, 231; Siegel, New York Practice [1978], § 560, p 783).

As in Stork Rest. (282 NY, at p 267 et seq.), we brief the testimony to the extent necessary to discover and decide whether there was evidence which adequately upholds the commissioner’s and thus the appeal board’s determination. Here, there was evidence, inter alia: that in December, 1974 apartment D55 consisting of five rooms became vacant or abandoned, the former tenant having moved out in November and having last paid the rent for that month; that Interdonti, a tenant in the building, told fellow worker Johnson that an apartment was available there; that on the morning of March 10, 1975 Mrs. Interdonti contacted Rosemann, the building superintendent, and then reported that the apartment was available and could be seen that afternoon and that the rent was $225; that upon Johnson’s arrival on the premises Mrs. Interdonti contacted Rosemann and arrangements were made that Johnson and Rosemann meet at the vacant quarters; that upon seeing and meeting Johnson, Rosemann stated he did not know whether he had the key but, upon checking, found it in his pocket; that after looking around, Rosemann asked Johnson if he wanted the apartment and the latter replied he did; that when Johnson said he liked the rooms, Rosemann replied "Well, did you look around?”; that when Johnson said he wanted the apartment, Rosemann said "Well, are your sure you want this apartment because, you know, I have some more”; that after discussing the rent, Johnson said he would have to go to the bank to get $450, representing one month’s rent and security, and that he would be back in 10 or 15 minutes; that upon return Johnson rang the bell at the superintendent’s apartment and someone inside said "just a minute”; that no one came to the door and the bell was rung again and, after a 10-minute wait, Rosemann came out and said "I have just talked to the boss and he told me that the apartment was under litigation and I can’t rent the apartment.” Rosemann failed to mention to Johnson the availability of apartment D54, a very large four and a half room apartment, located on the floor below which was expected to be available for rental in a week or two.

Significantly, Manzo, the building’s managing agent, admitted that apartment D55 in fact was not in litigation on March 10, 1975 and, furthermore, no action had even been commenced against the prior tenant, even up to the time of the hearing. Additionally, it was evidence: that in December, 1974 the lock on the apartment had been changed by Rosemann and the apartment had been painted and cleaned by him around the Christmas season so as to be physically ready for rental in the ensuing January or February; that sometime around the holidays Manzo told the superintendent that he was going to ask $225 for the apartment when cleaned and painted; that, contrary to Manzo’s version, Rosemann was not told prior to Johnson’s visitation that the subject apartment was not to be shown; that, at the time Johnson came, there was a large four and one-half room apartment available and Manzo had no recollection of telling the superintendent to show it to Johnson; that in early April the apartment was rented to others for $225; and that in March only one of the 90-odd tenants was Black and he had moved away prior to the hearing.

In no uncertain terms, the Human Rights Law provides "[i]t shall be an unlawful discriminatory practice for the owner * * * or managing agent of, or other person having the right to * * * rent or lease a housing accommodation, * * * or any agent or employee thereof: (1) To refuse to * * * rent, lease * * * such a housing accommodation because of the race * * * color * * * of such person or persons” (Executive Law, § 296, subd 5, par [a], cl [1]). In assaying the record before us to determine the existence of substantial evidence, three underlying principles should be borne in mind: the statute is to be "construed liberally for the accomplishment of the purposes thereof’ (Executive Law, § 300); wide powers have been vested in the commissioner in order that he effectively eliminate specified unlawful discriminatory practices (Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 35 NY2d 143, 146-147; Gaynor v Rockefeller, 15 NY2d 120, 132); and discrimination is rarely so obvious or its practices so overt that recognition of it is instant and conclusive, it being accomplished usually by devious and subtle means (State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201, 209; Matter of Holland v Edwards, 307 NY 38, 45, supra). Thus guided in our review, we determine that the commissioner’s findings are amply supported.

Review here, buttressed by these sound precepts, points to the irresistible conclusion that there is sufficient evidence in the record to support the commissioner’s findings. A number of items — the vacancy of the apartment, its preparations for and readiness for rental, the failure to notify the superintendent that the apartment was not to be shown, the communication that it was available at a specified rental, the meeting with the superintendent at the apartment site for the purpose of exhibition, his concern about the key upon seeing the Black prospect, his inquiries of the prospect as to whether the unit did in fact please when the prospect had already indicated enthusiastic acceptance, the failure to halt the prospect’s departure to the bank to secure the down payment, the extended wait outside the superintendent’s door upon return, the proffered excuse that the apartment was in litigation when in fact it was not and reasonably would not be, the failure to show another vacant apartment of similar size, the lack of proof of any suggestion by the managing agent that such other vacancy existed, the failure to obtain normal background particulars concerning the prospect, the subsequent lease for the same rental, and the dearth of Black tenants in the building — yield the inference and basis on which the discriminatory practice, as found, might have been deduced reasonably and properly.

That the discrimination practiced upon complainant was intentional is readily inferrable. There was proof of minimal out-of-pocket expenses for transportation incidental to viewing the apartment. More importantly, complainant believed, and quite reasonably so, that he had been "discriminated against.” That mental anguish and upset resulted from this belief, particularly when the objectionable activity occurred in the presence of a personal and business acquaintance, is obvious. Such distress follows such bias and exclusion as night follows day. Under all the circumstances, in view of the strong statutory policy to be effected and considering the size of the award, the statutory standard has been met and the award of compensatory damages should not be disturbed (see Batavia Lodge No. 196, Loyal Order of Moose v New York State Div. of Human Rights, 35 NY2d 143, 147, supra; State Comm. for Human Rights v Speer, 29 NY2d 555, revg on dissenting opn at App Div 35 AD2d 107, 113).

Accordingly, the order of the Appellate Division should be reversed, with costs, the order at the State Human Rights Appeal Board reinstated and the cross motion for an order enforcing the award granted.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order reversed, etc.

      The legal residuum rule and the doctrine, based on the language of former subdivision 7 of section 1296 of the Civil Practice Act, that annulment was in order where the agency’s findings were such that a jury’s verdict to the same effect "would be set aside by the court as against the weight of evidence” no longer obtain, regardless of whatever validity, if any, they may have once enjoyed (see 8 WeinsteinKorn-Miller, NY Civ Prac, par 7803.09; 23 Carmody-Wait 2d, Proceeding Against A Body or Officer, § 145.20; see, also, Toch, Judicial Review of Administrative Determinations in New York State, 24 Albany L Rev 95, 115-119 [1960]).


source: Caselaw Access Project

author: Cooke, J.

license: Public Domain

text:
    In the Matter of Alice Guzman, Respondent, v New York City Employees’ Retirement System et al., Appellants.
    Argued June 8, 1978;
    decided July 13, 1978

      POINTS OF COUNSEL

      W. Bernard Richland, Corporation Counsel (Irving Cohen, L. Kevin Sheridan, and Leonard Koerner of counsel), for appellants.
    I. First payment on account of retirement benefits was made to petitioner’s late husband during his lifetime so as to preclude petitioner from changing the option for payment selected by him. (Matter of O’Connor v New York City Employees’ Retirement System of City of N. Y., 42 AD2d 70; Connolly v Connolly, 9 NY2d 272; Matter of Hartnett v Lowery, 45 AD2d 170, 37 NY2d 828; Matter of Augello v Lindsay, 40 AD2d 815, 32 NY2d 621; Matter of Creveling v Teachers’ Retirement Bd., 255 NY 364; Matter of Jaslow v New York City Employees’ Retirement System, 9 Misc 2d 754, 6 AD2d 1010, 7 NY2d 858; Gloyd v Midwest Refining Co., 62 F2d 483; Witt’s Estate v Fahs, 160 F Supp 521; People v Continental Cas. Co., 157 Misc 15; Matter of Samuels, 15 AD2d 618; Matter of Samuels [Catherwood], 15 AD2d 701.) II. The fact that the Board of Trustees of the New York City Employees’ Retirement System did not adopt a resolution setting forth petitioner’s husband’s effective date of retirement and the amount of his Option 4 retirement allowance until the day after his death did not negate the legal effect of the first payment to him. (Matter of Zucker v New York City Employees’ Retirement System, 27 AD2d 207, 21 NY2d 904.)

      Walter C. Redñeld for respondent.
    Since Herminio Guzman died prior to the receipt of his "first payment” check under Option 4, petitioner is entitled to receive a death benefit under Option 1 (subd a). (Connolly v Connolly, 9 NY2d 272; O’Connor v New York City Employees’ Retirement System of City of N. Y, 42 AD2d 70; Kennedy v New York City Employees’ Retirement System, 51 AD2d 296, 41 NY2d 854.)
   OPINION OF THE COURT

Cooke, J.

The question before us, in simplest terms, is whether the mere mailing of a check by the New York City Employees’ Retirement System to a beneficiary constituted a first payment on account of retirement benefits, under section B3-46.0 of the Administrative Code of the City of New York.

The New York City Employees’ Retirement System (sometimes hereinafter referred to as the System), generally, is governed by the provisions of title B of chapter 3 of the Administrative Code of the City of New York. Under it a "beneficiary” means "any person in receipt of a pension, an annuity, a retirement allowance, a death benefit or any other benefit provided by [said] title” (§ B3-1.0, subd 8); "Until the first payment on account of any benefits is made”, the beneficiary, if not incompetent, may elect to receive the benefit in a retirement allowance payable throughout his or her life or the actuarial equivalent of his or her annuity, pension or retirement allowance in a lesser amount payable for life, with the balance payable in accordance with four options (§ B3-46.0). Under Option 1 (subd a), the difference between the present value of the beneficiary’s annuity, pension or retirement allowance, as the case may be, at the time of retirement, and the amounts paid to him or her prior to death, may be paid to a designated beneficiary in a lump sum or the actuarial equivalent in the form of an annuity to his legal representatives or to such person as the beneficiary has nominated by written designation acknowledged and filed with the board of trustees of the retirement system (§ B3-46.0; see § B3-1.0, subd 48). If a beneficiary elects Option 4, he or she may designate that a particular benefit be paid upon death to such person or persons as he or she nominates, provided such benefit, together with the lesser annuity, pension or retirement allowance, shall be certified to be of equivalent actuarial value to his or her annuity, pension or retirement allowance and shall be approved by said board (§ B3-46.0).

Alice Guzman, as petitioner, instituted this proceeding for a determination that she, as widow and nominated beneficiary of Herminio Guzman, is entitled to a death benefit in a lump sum from the System pursuant to sections B3-36.0 and B3-46.0 of said code. Special Term dismissed the petition, but on appeal the Appellate Division, by a divided court, reversed, granted the petition and directed judgment determining that petitioner is entitled to such a lump-sum death benefit and also directed that respondents forthwith compute and make payment.

Herminio Guzman had been an employee of the Department of Hospitals of the City of New York and the New York City Hospitals Corporation far in excess of 20 years prior to his retirement on December 26, 1972. On July 23, 1974 he executed a form, selecting his benefits under Option 4 of section B3-46.0 and nominating petitioner as the beneficiary to receive a lump sum of $10,000 at the time of his death. The form also set forth: "I elect that in the event of my death on or after the effective date of my retirement and before the first payment on account of retirement allowance, a benefit under Option 1 shall be paid in lieu of the benefit payable under Option Four.” On October 9, 1974, a check dated September 24, 1974, in the sum of $5,943.19 and on account of the retirement allowance under Option 4, was mailed to Mr. Guzman. He died on October 10, 1974 at 3:00 a.m.

Guzman on December 26, 1972, the effective date of his retirement, ceased being a "member” and became a "beneficiary” of the retirement system (Administrative Code, §§ B3-1.0, subds 6, 8; B3-3.0). On that day, he became entitled to be,"in receipt of a pension, an annuity, a retirement allowance, a death benefit or any other benefit” provided in title B of the code (cf. Matter of Benedict v La Guardia, 252 App Div 540, 543, affd 277 NY 674).

Section B3-46.0 expressly stipulates that the selection of an option provided for therein may be made " '[u]ntil the first payment on account of any benefits is made’ ” (Matter of Jaslow v New York City Employees’ Retirement System, 9 Misv 2d 754, 756, affd 6 AD2d 1010, affd 7 NY2d 858). Thus, the statute establishes the "first payment on account of any benefits” as the cut-off time for the selection of an option, so that a member who elected to retire under a particular option when he applied for retirement is entitled to change his election after the effective date of retirement, provided he does so before the initial payment of an installment on account of any benefit (see 44 NY Jur, Pensions and Retirement Systems, § 157, p 519; see, also, Kruger v New York City Employees’ Retirement System, 8 Misc 2d 1051, 1052).

Respondents contend that the "first payment” was effected when the "first payment” check was mailed to the beneficiary and it is obvious and apparently undisputed that the mailed check did not and could not have reached him before his death during the early morning hours of the day following mailing. In determining whether payment was accomplished by mailing alone, reliance should not be placed on the general law as to whether a check imports payment but we should look rather to the statute and the few precedents under it (see Connolly v Connolly, 9 NY2d 272, 276).

As conceded in the pleadings and as demonstrated in an exhibit, decedent became a member of the System on July 3, 1940. Section 7 of article V of the State Constitution, effective January 1, 1973, provides that after July 1, 1940 "membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired.” The purpose of the amendment was to fix the rights of the employees at the time of commencement of membership in the system, rather than as previously at retirement (Birnbaum v New York State Teachers Retirement System, 5 NY2d 1, 9; see Roddy v Valentine, 268 NY 228, 232 [1935]). Herminio Guzman’s membership in the System was "a contractual relationship” (Kleinfeldt v New York City Employees’ Retirement System, 36 NY2d 95, 99), and the statutory provisions of section B3-46.0 of the Administrative Code, encompassing certain pension rights of the beneficiary and those of his widow, his nominated beneficiary, are to be regarded as part of the contract terms (Hoar v City of Yonkers, 295 NY 274, 279; Matter of Carroll v Grumet, 281 App Div 35, 38, app dsmd 305 NY 692). Included also within the constitutional shelter are those benefits regarded as conditional (Matter of Donner v New York City Employees’ Retirement System, 33 NY2d 413, 416).

Decisions treating the mailing, delivery and receipt of payment checks of the New York City Employees’ Retirement System manifest that the posting of a check directed to a beneficiary, without more, does not constitute a first payment. In Connolly v Connolly (9 NY2d 272, supra), decedent, as a member of said System, had chosen on retirement an option under section B3-46.0 whereby he would receive during lifetime an annual retirement allowance payable in monthly installments and had designated three persons to receive any balance under the option plan at his death. Prior to death, he had received almost $2,000 in checks but had not cashed them and the question posed was whether the amount of the checks went to the designated beneficiaries or to decedent’s estate. This court held that "[e]ach time Connolly [the decedent] received a monthly pension check that amount became his and the account was decreased accordingly” (emphasis supplied) (p 277). We agreed with Appellate Term, which stated "[i]nsofar as checks were issued, title thereto passed to the decedent upon their delivery to him” (9 Misc 2d 291, 292), and with the dissenters at the Appellate Division, who wrote that "the delivery of the * * * checks to the retired member during his lifetime was, under the circumstances here disclosed, payment to him. The obligation of the Retirement System was to make payments to the retired employee during his lifetime and on his death to his designees. The retired member may not vary that obligation by refusing or postponing receipt of the checks” (8 AD2d 729).

Matter of O’Connor v New York City Employees’ Retire ment System (42 AD2d 70, 72) also involved section B3-46.0. After retiring, petitioner’s wife selected Option 4 and filed a form which provided that, if she died before the first payment on account of retirement allowance, a benefit under subdivision a of Option 1 would be paid in lieu of that under Option 4. The wife died, while in Ireland, about eight days after the first check on account of her retirement allowance had been mailed to the. file-listed address designated by her. Relying heavily on Connolly, it was held: "The obvious purpose of the provision permitting a change of option until 'the first payment on account’, is to provide a definite point of time at which the obligations become fixed. Nor may the retiree be permitted to extend that time at his own will, for such would defeat the very purpose of the provision. * * * Here, the check was properly mailed to the address designated by the retiree and there is no indication that the check was not actually delivered to such address. Only the decedent’s unilateral action in moving or departing from her designated address, without informing the Retirement System, prevented the actual receipt of the check. Such action, as already noted, may not serve to vary the Retirement System’s obligations or extend the time for changing options. Hence, under these facts, the constructive receipt of the check having been established, we must conclude that 'the fírst payment on account’ was made during the decedent’s lifetime” (emphasis added).

Again, in Kennedy v New York City Employees’ Retirement System (41 NY2d 854, affd on opn at 51 AD2d 296), "first payment” statutory language was construed. Plaintiffs’ first cause of action was based on section B3-36.0 (subd 4, par [d], cl [3]) of the Administrative Code which provided that "if any retired member dies on or after the effective date of his retirement and prior to the first payment on account of his retirement allowance, and had not elected Option 1, 2 3 or 4 with respect to such retirement, he shall be deemed to have elected Option 1 with respect thereto.” It was held that said cause of action had been properly dismissed since a check of $5,722.79, received and deposited by the retiree on October 6, 1971, was intended and understood from its amount to be the first payment on account of the retiree’s retirement allowance.

Conversely, although not necessarily of determinative quality because of the differing retirement statutory provisions involved, it is interesting to note that, not inconsistent with the determination here made, it has been held: that an election of benefits to which a retired member of a retirement system is entitled is not validly made unless it is communicated to the system in the lifetime of the party making the election (Marcus v New York City Employees’ Retirement System, 247 App Div 111, 113, mot for lv to app den 271 NY 664 [Greater New York Charter, § 1720]); that a written application for retirement is not sufficient in itself but must pass from the teacher to the teacher’s retirement board (Matter of Creveling v Teachers’ Retirement Bd., 255 NY 364, 368 [Greater New York Charter, § 1092, subd K, a predecessor of Administrative Code, § B20-41.0]); that an application by a teacher for service retirement is not effective until delivered and that such delivery does not result from a mere deposit in the mails (Matter of Poucher v Teachers’ Retirement Bd., 249 NY 414, 416 [Greater New York Charter, § 1092, subd K]); and that the weight of authority establishes that a document is not filed until it is "delivered to” or "received by” the appropriate official and, since the option election form was not filed prior to decedent’s death, it did not become legally effective (Matter of Robillard v Levitt, 44 AD2d 611 [Retirement and Social Security Law, § 90]).

It has been stated that "[t]he only safe and sure way to proceed with and maintain the retirement system is to follow the law which brought it into being and which has prescribed its limitations” (Matter of Creveling v Teachers’ Retirement Bd., 255 NY 364, 373, supra). While such an approach may at times seem harsh to a faithful employee or even harmful to the system itself, it provides a measure of certainty and security and tends to protect the vast majority of those who have contributed to the retirement plan. More particularly, the concept of first payment, as embodied in section B3-46.0 of the Administrative Code and as judicially interpreted, connotes delivery, whether actual or constructive, as an essential attribute of payment — which in turn suggests bilateral activity enabling the fixation of a more definite time limitation with at least a modicum of notice, rather than the simple unilateral act of one party to the contract not yet communicated to and unbeknown by the other. In these circumstances, the mailing, hours before death, in no way constituted first payment within the meaning of the operative section of the code. Any concern for the actuarial soundness of the System should be translated into ’insistence upon more expeditious settlement of retirement options and first payment thereunder.

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

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed.


author: Fuchsberg, J.

text:
    North Syracuse Central School District, Respondent, v North Syracuse Education Association, Appellant.
    Argued June 9, 1978;
    decided July 13, 1978

      POINTS OF COUNSEL

      Gerard John DeWolf and Bernard F. Ashe for appellant.
    The arbitrator acted within the scope of his powers in awarding reinstatement to the prevailing grievants at a point in time subsequent to the expiration of the parties’ agreement. (Whitney Point Cent. School Dist. [Whitney Point Teachers Assn.], 55 AD2d 439, 43 NY2d 663; Board of Educ. v BellmoreMerrick United Secondary Teachers, 39 NY2d 167; Matter of Fayetteville-Manlius Cent. School Dist. [Fayetteville-Manlius Teachers Assn.], 51 AD2d 91, 41 NY2d 818; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578; Matter of Torano [Motor Vehicle Acc. Ind. Corp.], 19 AD2d 356; Matter of British Overseas Airways Corp. v International Assn., of Machinists & Aerospace Workers, AFL-CIO, 39 AD2d 900, 32 NY2d 823; Lentine v Fundaro, 29 NY2d 382; Matter of Candor Cent. School Dist. [Candor Teachers Assn.], 42 NY2d 266.)

      Donald L. Nicholas and James A. Martin for respondent.
    I. The courts below have correctly held that the arbitrator exceeded his power in directing respondent school district to restore certain individuals to their former positions for the 1976-1977 school year. (Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578; Matter of Fayetteville-Manlius Cent. School Dist. [Fayetteville-Manlius Teachers Assn.], 51 AD2d 91, 41 NY2d 818; Sedita v Board of Educ., 53 AD2d 300; Matter of Board of Educ. [Poughkeepsie Public School Teachers Assn.], 44 AD2d 598; Matter of Cardinale v Andersen, 75 Misc 2d 210; Matter of Betts [Hoosic Val. Teachers’ Assn.], 86 Misc 2d 964.) II. There is no justification for subjecting respondent district to the expense and trouble of restoring individuals to positions it is no longer required to maintain. (Kepp v Springville-Griffith Cent. School Dist., 43 NY2d 767.)
   OPINION OF THE COURT

Fuchsberg, J.

The petitioner in this proceeding, brought pursuant to CPLR 7511, seeks vacatur of an arbitration award which, as part of the relief it grants, directs the reinstatement of certain teaching employees found to have been discharged in violation of a job security clause contained in a public sector collective bargaining agreement. The main issue on the present appeal is whether the arbitrator, in the absence of any express limitation on his powers, lacked authority to order the employees restored to their former positions at a time subsequent to the expiration date of the contract under which the dispute arose.

It was on September 9, 1974 that the petitioner, North Syracuse Central School District, and the respondent, North Syracuse Education Association, the duly recognized bargaining agent for the teachers, entered into the agreement. The period it covered was from July 1, 1974 to June 30, 1976. The asserted security clause, numbered section 75 and entitled "Adequate Number of Specialists”, reads: "An adequate number of competent specialists is essential to the operation of an effective educational program. The number of such specialists employed will be determined by need, availability, and the financial resources of the District; but the District at this time reaffirms its intentions to maintain the present ratio of specialists to classrooms and/or students in order to continue to offer a comprehensive educational program”.

In March, 1975, when the agreement still had more than a year to run, the district’s superintendent, apparently fearing rejection of its projected budget upon presentation to the district’s voters, recommended to the board of education that certain cost-cutting measures be instituted during the ensuing school year, i.e., the second year of this contract. Among the cuts he proposed was the elimination of the positions of 20 employees who fit the contract definition of "specialists” (four driver education teachers, 13 school nurse-teachers, two guidance counselors, and a part-time reading teacher). In due course, his recommendations were adopted and the employment of the 20 teachers was terminated.

Not unexpectedly, respondent’s opposition to the abolition was strenuous. It took two paths. One was the contract’s grievance machinery, the final stage of which was to be final and binding arbitration. The other might be termed political. Pursuing procedures under article 41 of the Education Law, it attempted to persuade the district’s electors to exercise their franchise by voting for ballot propositions whose adoption would have restored the appropriation to cover the specialist teachers’ continued employment; this effort met defeat at the polls in June, 1975.

The arbitration route was to prove more fruitful. However, it did not get under way until after November 5, 1975, when the Supreme Court in Onondaga County denied a motion the district made for a stay of arbitration under CPLR 7503; in doing so, the court found that the asserted grievance was within the scope of the contract’s arbitration clause and that there was no merit to the district’s insistence that the security clause on which the teachers relied so impermissibly trespassed on the board’s managerial powers that its commitment to an arbitrator offended public policy. In the ensuing arbitration, the hearings began on February 5, 1976, the abritrator’s partial decisions (on all but the remedy, on which a separate hearing was ordered to take place within 30 days) was handed down on April 26, 1976, hearings as to remedy were held on May 21 and 27, 1976, briefs and statements were submitted on June 17, 1976 and the final award was handed down on July 13, 1976.

Pertinently, the arbitrator held that section 75 constituted a "job security” clause and that it had been breached by the discharge of all but the part-time reading teacher. Remedially, he ordered that these employees be reimbursed for their lost wages for the 1975-1976 school year (less other earnings and unemployment compensation) and that those of the specialists who had not retired in the interim be restored to their positions "effective at the opening of the 1976-1977 school year”.

The district then commenced the present proceeding in which Special Term was of the opinion that the arbitrator had gone beyond the scope of his powers in requiring the grievants’ return to their former positions as of a time subsequent to the expiration of the agreement. It ordered modification of the award to the extent of deleting the direction for reinstatement for the 1976-1977 school year. On cross appeals by both parties, the Appellate Division unanimously affirmed (57 AD2d 1056). Leave to appeal having been granted by this court only to the teachers’ association (43 NY2d 642; 42 NY2d 811), this is the only aspect of the arbitrator’s decision before us. For reasons which follow, we believe the award should have been confirmed in its entirety.

It is well settled that, when a dispute has moved to arbitration, a party seeking to vacate the ultimate award must meet a heavy burden, "for once the issue is properly before the arbitrator, questions of law and fact are merged in the award and are not within the power of the judiciary to resolve” (Matter of Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23, 28). Needless to say, the same thing holds true when an arbitrator elects to disregard technicalities to achieve a just result (Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578; Lentine v Fundaro, 29 NY2d 382). However, in the present case when the courts below concluded that the arbitrator had "exceeded his power” by ordering reinstatements to begin at a time when the termination date of the labor contract to which he owed his commission had passed, they posited their decision on a ground expressly sanctioned by CPLR 7511 (subd [b], par [1], cl [iii]).

Directly confronting that issue, we observe that it has long been recognized that, though an arbitrator’s authority stems from the contract in force at the time the grievance arose, the range of the exercise of that authority is not so limited. Thus, "[t]he mere circumstances * * * that a contract has been terminated does not foreclose the arbitration of issues which arise out of and relate to it” (Matter of Potoker [Brooklyn Eagle], 286 App Div 733, 736, affd 2 NY2d 553, cert den 355 US 883; see, also, Matter of Triborough Bridge & Tunnel Auth. [District Council No. 37], 44 NY2d 676; Matter of International Assn. of Machinists [Buffalo Eclipse Corp.], 9 NY2d 946; Matter of Lane [Endicott Johnson Corp.], 274 App Div 833, affd 299 NY 725, cert den 338 US 892). Nor is it to be assumed that the remedies ordered by an arbitrator must be capable of being performed during its term. Significantly, neither the arbitration clause nor the stipulated submission in the case before us hemmed in the arbitrator by any prohibition on his doing so, much less one that specifically would have barred him from deciding on the reinstatements he ordered.

Obviously, to cut off the reach of the remedy at the terminal date of the contract would impair the permissible elasticity which constitutes one of the advantages of the arbitration device, especially in situations where the grievance arose near the end of the contract’s term, where the contract calls for a multitier processing of grievances and may therefore cause a lapse of time before they reach the arbitrator, or where one side has used dilatory tactics which prevent the dispute from being heard promptly. In such circumstances, it is not difficult to understand why an arbitrator’s award of reinstatement to take effect after the contract has expired is not only permissible, but perhaps necessary (Matter of Burt Bldg. Materials Corp. [Local 1205, Int. Brotherhood of Teamsters], 18 NY2d 556).

In making the challenged award here the arbitrator apparently was mindful of such considerations for he described, as an impelling motivation, the fact that it was "crystal clear * * * [that] it was too late in the 1975-76 school year to order the return of the teachers involved to the positions they held in the previous year * * * [and that] the usual arbitrator’s award of reinstatment of employees improperly discharged at the earliest moment * * * could not have been issued in the waning weeks of the 1975-76 school year.”

The district’s argument that the only permissible remedy was back pay or, for that matter, even a larger sum as monetary damages, does not withstand analysis. There are recognized factors other than strictly monetary ones, such as evaluation of performance, possibility of tenure, maintenance of skills, fostering of a desirable work environment, and the like, which impel employees to bargain for, and employers voluntarily to consent to, job security clauses. From the standpoint of the union, in securing the rights of individual workers it may be seen as properly protective of its members’ collective interests (cf. Matter of South Colonie Cent. School Dist. v Longo, 43 NY2d 136; Matter of Burke v Bowen, 40 NY2d 264; Matter of Board of Educ. [Auburn Teachers Assn.], 49 AD2d 35, mot for lv to app den 38 NY2d 740).

For such reasons, unless constrained by the arbitration agreement, an arbitrator might well determine that wrongful discharge of an employee is not fully compensable solely in dollars and cents, and, accordingly, an award which couples payment of lost wages with a prospective order of reinstatement is not to be disturbed on that ground alone. (Matter of Fayetteville-Manlius Cent. School Dist. [Fayetteville-Manlius Teachers Assn.], 41 NY2d 818; Matter of British Overseas Airways Corp. v International Assn. of Machinists & Aerospace Workers, 32 NY2d 823). Indeed, an award of reinstatement, with or without back pay, is by now well fixed in the remedial arsenal to which public employment arbitrators may resort in order to make grievants whole (Matter of Three Vil. Teachers Assn. v Three Vil. Cent. School Dist., 43 NY2d 847; Matter of Fayetteville-Manlius Cent. School Dist. [Fayetteville-Manlius Teachers Assn.], supra, p 818; Board of Educ. v Bellmore-Merrick United Secondary Teachers, 39 NY2d 167) and it is clear that job security clauses, if voluntarily entered into and of reasonable duration, will be given effect (Matter of Whitney Point Cent. School [Whitney Point Teachers Assn.], 43 NY2d 663; Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268; Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614).

We also reject defendant’s argument that the effect of the reinstatement is to extend the job security clause ad infinitum. In ordering the teachers’ reinstatement, the arbitrator merely returned them to the status they would have occupied had they not been wrongfully dismissed. The new agreement for the 1976-1977 year was negotiated independently of this arbitration and both parties appear to be in accord that it applies equally to all teachers employed as of that date and gives no guarantees to the reinstated ones or the others as to what future agreements might provide as to any or all of them. And the arbitrator, expressing awareness that by the time of the reinstatement the parties would be operating under a different collective bargaining agreement, made clear that any unanticipated problems encountered upon reinstatement were to be dealt with under the terms of the new contract and its own grievance machinery, as would be done for all other employees.

Finally, no weight is to be placed on the district’s contention that the attempt to evade its contractual commitments is to be permitted because it was approved, or perhaps even demanded, by a vote of its electors. The people, acting directly, have no more power under our Constitution to shirk their valid obligations when these appear inconvenient than do their elected representatives (see Flushing Nat. Bank v Municipal Assistance Corp. for City of N. Y., 40 NY2d 731; cf. Reitman v Mulkey, 387 US 369, 387 [Douglas, J., concurring]).

Accordingly, the order of the Appellate Division should be reversed insofar as appealed from and the arbitrator’s award reinstated.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur.

Order reversed, with costs, and the arbitrator’s award reinstated.

      No appeal was taken from this decision.


author: Jasen, J. Gabrielli, J.

text:
    The People of the State of New York, Respondent, v Jesus Perez, Appellant.
    Argued May 31, 1978;
    decided July 11, 1978

      POINTS OF COUNSEL

      Alan S. Axelrod and William E. Hellerstein for appellant.
    I. The People, as a matter of law, failed to prove appellant guilty beyond a reasonable doubt where the sole inculpatory evidence at trial was the testimony of complainant, who, two weeks after the crime, stated that he would be unable to identify the robbers if shown photographs, and who, one week later, failed to identify appellant at a Criminal Court showup. (People v Reed, 40 NY2d 204; People v Santos, 38 NY2d 173; People v Pegnataro, 263 NY 229; People v Ledwon, 153 NY 10; People v De Tore, 34 NY2d 199.) II. The court should have ordered further psychiatric examinations and a hearing on appellant’s competence to stand trial when it was informed by counsel that he believed appellant incapable of comprehending the proceedings and that appellant had done little to aid in preparing his defense, and when it received a presentence psychiatric report which described appellant as schizophrenic and indicated that he had previously been in a mental hospital. (Drope v Missouri, 420 US 162; People v Hudson, 19 NY2d 137; People v Gonzalez, 20 NY2d 289, 390 US 971; Pate v

      Robinson, 383 US 375; People v Armlin, 37 NY2d 167; People v Bangert, 22 NY2d 799; People v Peterson, 40 NY2d 1014.) III. The count of possession of a weapon as a misdemeanor should have been dismissed as an inclusory concurrent count of robbery in the first degree. (People v Acevedo, 40 NY2d 701; People v Lee, 39 NY2d 388; People v Grier, 37 NY2d 847; People v Alston, 52 AD2d 817.)

      Mario Merola, District Attorney (Philip F. Menna and Billie Manning of counsel), for respondent.
    I. Appellant’s guilt was established beyond a reasonable doubt. (People v Santos, 38 NY2d 173; People v Ledwon, 153 NY 10; People v Owens, 148 NY 648; People v Seppi, 221 NY 62; People v Joyiens, 39 NY2d 197; People v Harrington, 29 NY2d 498; People v Ballott, 20 NY2d 600; People v De Tore, 34 NY2d 199; Wedra v New York, 419 US 1025; People v Cerullo, 18 NY2d 839; Moccio v New York, 387 US 946; People v McCullers, 33 NY2d 806.) II. The trial court’s discretionary determination to order a psychiatric examination of appellant without a subsequent competency hearing did not constitute error, as a matter of law. (People v Robinson, 36 NY2d 224; People v Smyth, 3 NY2d 184; People v Salladeen, 50 AD2d 765, 42 NY2d 914; United States ex rel. Roth v Zelker, 455 F2d 1105, 408 US 927; United States v Wolfe, 232 F Supp 85; People v Sullivan, 48 AD2d 398, 39 NY2d 903; People v Miller, 84 Misc 2d 310; People v Gonzalez, 20 NY2d 289, 390 US 971.) III. The conviction for the crime of possession of a weapon as a misdemeanor was proper. (People v Johnson, 39 NY2d 364; People v Flores, 42 AD2d 431; People v Colon, 46 AD2d 624; People v Ridout, 46 AD2d 643.)
   OPINION OF THE COURT

Jasen, J.

After returning home from a movie, at approximately 1:30 a.m., George Glass was approached in front of his apartment building at 1340 Morris Avenue in The Bronx by appellant, Jesus Perez, and a second individual, one Robert Ferguson. Upon approaching Glass, appellant inquired as to whether a certain person lived in the apartment building. Before Glass could respond however, appellant, who while approaching Glass was handed a knife by Ferguson, thrust Glass against" a parked car, placed the knife against his spine, and demanded that he surrender his money. Notwithstanding Glass’ frightened attempt to co-operate by indicating his possession of a few dollars and his willingness to turn over that sum to his assailants, appellant continued to bear his weight against the knife while Ferguson rifled Glass’ pockets. Having discovered no greater bounty, as Glass had contended, appellant nonetheless plunged the knife into his victim’s back. Recoiling from the blow, Glass staggered into the street only to be seized again by his attackers and stabbed a second time by appellant.

Having been indicted in a multicount indictment, appellant, after a jury trial, was convicted of robbery in the first degree (Penal Law, § 160.15), two counts of assault in the second degree (Penal Law, § 120.05), and possession of a weapon as a misdemeanor (Penal Law, § 265.05, subd 9). The Appellate Division affirmed appellant’s convictions, without opinion.

Appellant raises a number of issues on this appeal, each of which we find, upon review, to be without merit. We, nonetheless, take this opportunity to clarify the scope of GPL 300.40 (subd 3, par [b]), which provides that a verdict of guilty upon the greatest count of an indictment submitted to the jury constitutes a dismissal of every lesser inclusory concurrent count submitted.

With regard to this issue, appellant contends that the third count of the indictment charging him with possession of a "knife with the intent to use the same unlawfully against another” is a lesser included offense of the first count of the indictment charging him with robbery in the first degree. The latter count charged specifically that in the course of the commission of the robbery, appellant was "armed with and used and threatened the immediate use of a dangerous instrument, to wit, a knife.” The basis of appellant’s contention is two-pronged: First, that he could not have committed the robbery armed with a knife and used such weapon without necessarily concomitantly possessing the knife with the intent to use it unlawfully against a person; and, second, that there exists no evidence that he possessed the knife prior to the commencement of the robbery. Thus, concludes appellant, the jury’s verdict convicting him of robbery in the first degree should have automatically resulted in the dismissal of the weapons possession count. We cannot agree.

Standing as the fountain of the doctrine of lesser included offense is GPL 1.20 (subd 37), which provides that "[wjhen it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of a lesser grade or degree, the latter is, with respect to the former, a 'lesser included offense.’ ” Interpreting this statutory definition, the Appellate Division has, in a number of recent cases similar to the instant appeal, held that a weapons possession charge is dismissed upon the return of a verdict of guilty on a greater crime. (See, e.g., People v Buchanan, 57 AD2d 781 [possession of a weapon as inclusory concurrent count of murder and robbery]; People v Williams, 57 AD2d 850 [possession of a weapon as inclusory concurrent count of attempted murder]; People v Davis, 56 AD2d 892 [possession of weapon as inclusory concurrent count of attempted assault]; People v Lucas, 56 AD2d 780 [possession of weapon as inclusory concurrent count of robbery]; People v Solomon, 56 AD2d 751 [possession of weapon as inclusory concurrent count of robbery].) The apparent rationale for the dismissal of an indictment count charging possession of a weapon upon the return of a verdict of guilty upon a count of the indictment charging a greater crime is the absence of evidence indicating the defendant’s possession of the weapon with intent to use it unlawfully independent of the commission of the greater crime, be it robbery, assault, murder or some other crime.

We believe, however, that it is not necessary to prove a defendant’s possession of a weapon with intent to use it against a person unlawfully by evidence independent of the defendant’s conduct during the commission of a greater crime. On the contrary, where a defendant uses a weapon unlawfully to commit a crime of violence, such as robbery, that conduct in itself provides the basis for an indictment charging the defendant with both robbery and possession of a weapon with intent to use it against a person unlawfully.

Behind the doctrine of lesser included offense stands the basic principle that a defendant should not be convicted and punished more than once for conduct which, although constituting only one prohibited act, may, because of statutory definition, be theorized as constituting separate criminal acts. For example, in People v Stanfield (36 NY2d 467), we considered the question whether criminally negligent homicide is a lesser included offense of manslaughter in the second degree. In holding that it is, we noted that the distinction between the crimes of manslaughter in the second degree and criminally negligent homicide is nothing more than the mental state of the actor at the time of the commission of the crime. (See People v Haney, 30 NY2d 328, 333.) We stressed that, exclusive of the mental state, the result and underlying conduct requisite in both manslaughter in the second degree and criminally negligent homicide are identical. (36 NY2d, at p 470, supra.) For this reason, we rejected the argument advanced by the People that, because of the different mental states required by the statutory definitions of these crimes, they are mutually exclusive and, hence, that it would be possible to commit manslaughter in the second degree without concomitantly committing criminally negligent homicide. (Id., P 471.)

In a somewhat similar vein, we held in People v Henderson (41 NY2d 233) that trespass in the third degree qualifies as a lesser included offense of burglary in the third degree. There, we stated: "Indeed, '[bjurglary, as defined in the Revised Penal Law, is, in essence, nothing more than a form of criminal trespass with two aggravating factors: (1) the premises invaded constitute a building, and (2) the intruder enters or remains with intent to commit a crime thereon’ ”. (Id., at p 235, quoting Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 140.20, p 35.)

To be distinguished is the present case, in which the crimes of robbery and possession of a weapon constitute separately cognizable and statutorily proscribed wrongs. These crimes differ not merely in the requisite mental state of the actor, but, more importantly, in their underlying conduct and result. Certainly, no one would consider robbery as nothing more than possession of a weapon with certain aggravating factors, as one would burglary and trespass. (See People v Henderson, supra.) Because of the serious danger to the public posed by individuals who possess weapons, we believe that, as a matter of policy, the Legislature could not have intended that a weapons possession charge, such as the charge involved in this case, merge with the greater crime of robbery, notwithstanding the absence of evidence of the defendant’s possession of the weapon independent of his conduct during the commission of the robbery.

In so holding, we call attention to the fact that to convict appellant of both the crimes of robbery in the first degree and possession of a weapon as a misdemeanor will not result in the imposition of a sentence of imprisonment greater than that which would have been imposable had he been convicted only of robbery in the first degree. Where a defendant is convicted of two offenses as a result of "an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences [of imprisonment imposed] must run concurrently.” (Penal Law, § 70.25, subd 2.) Thus, while at first blush appellant’s conviction of both robbery in the first degree and possession of a weapon as a misdemeanor may appear harsh, its effect is mitigated by a statutory proscription against imposition of an additional sentence of imprisonment for the latter crime.

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

Gabrielli, J.

(dissenting in part). Although I agree that defendant’s other arguments are completely devoid of any merit, I am constrained by law and logic to conclude that under the facts of this case the crime of possession of a weapon as a misdemeanor (then Penal Law, § 265.05, subd 9, now Penal Law, § 265.01, subd [2]) is a lesser inclusory concurrent count with respect to the crime of robbery in the first degree (Penal Law, § 160.15, subd 3). Thus, when defendant was found to be guilty of robbery in the first degree, the court should have dismissed the possession charge pursuant to CPL 300.40 (subd 3, par [b]). Accordingly, I would modify the order appealed from by dismissing the conviction of defendant for possession of a weapon as a misdemeanor.

This is really a very simple case. Defendant Perez and one Robert Ferguson robbed and assaulted one George Glass early one morning on a Bronx street. In the course of that robbery, Ferguson handed defendant a knife and defendant stabbed Glass with that knife. Defendant was tried upon an indictment charging him with the crimes of robbery in the first degree, robbery in the second degree, grand larceny in the third degree, assault in the first degree, assault in the second degree, and possession of a weapon as a misdemeanor. Following a jury trial, he was convicted of robbery in the first degree, two counts of assault in the second degree, and possession of a weapon as a misdemeanor. The Appellate Division affirmed defendant’s convictions, and he now appeals to this court on several grounds, only one of which has any validity.

CPL 300.40 (subd 3, par [b]) provides, inter alia, that a verdict of guilty with respect to the greater of two or more inclusory concurrent counts is to be "deemed a dismissal of every lesser count submitted”. Defendant contends, and correctly so, that the facts of this case are such that the possession of a weapon charge was a lesser inclusory concurrent count with respect to the charge of robbery in the first degree, and thus a verdict of guilty as to the robbery charge mandated dismissal of the possession charge.

To determine the meaning and applicability of the term "lesser inclusory concurrent count”, we must first turn to CPL 300.30 (subd 4), which provides that "[cjoncurrent counts are 'inclusory’ when the offense charged in one is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater.” It is evident that this definition provides two discrete criteria, each of which must be met for a particular count to be a lesser inclusory concurrent count with respect to another: the two counts must be concurrent, and the one must be a lesser included offense with respect to the other. To determine whether the two elements of the definition of a lesser inclusory concurrent count are present in a given case, we must examine the applicable statutes, which are uncomplicated and clearly mandate the correct result in this case.

CPL 300.30 (subd 3) provides that counts are concurrent if "concurrent sentences only may be imposed in case of conviction thereon.” To learn when it is that only concurrent sentences may be imposed, one must turn next to subdivision 2 of section 70.25 of the Penal Law, which provides that "[wjhen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences must run concurrently.” Before applying this definition to the facts of the present case, it is appropriate to consider the remaining element of the definition of a lesser inclusory concurrent count, namely, that it be included within the greater offense. The phrase "lesser included offense” is defined in CPL 1.20 (subd 37), which reads, in pertinent part, as follows: "When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a 'lesser included offense.’ ”

Defendant was convicted of robbery in the first degree, pursuant to subdivision 3 of section 160.15 of the Penal Law, which defines that crime as follows: "A person is guilty of robbery in the fir^t degree when he forcibly steals property and when * * * he * * * [u]ses or threatens the immediate use of a dangerous instrument”. As noted, he was also convicted of possession of a dangerous weapon as a misdemeanor, which was then defined in subdivision 9 of section 265.05 of the Penal Law (now Penal Law, § 265.01, subd [2]), which provided that ”[a]ny person who has in his possession any * * * knife * * * with intent to use the same unlawfully against another is guilty of a class A misdemeanor”.

It is of course readily apparent that this defendant could not possibly have committed this robbery with the use of a dangerous instrument, in this case the knife, without at the same time possessing that knife with intent to use it against the victim of the robbery. Thus, the possession of a weapon charge falls squarely within the definition of a lesser inclusory concurrent count with respect to the charge of robbery in the first degree. Any sentences imposed for the two crimes under these facts would have to be concurrent, since the act of possession with intent to use is both the act which constitutes the offense of possession and also an implicitly material element of robbery in the first degree as defined in subdivision 3 of section 160.15 of the Penal Law (see Penal Law, § 70.25, subd 2). Thus, the two counts are concurrent pursuant to CPL 300.30 (subd 3). Finally, the crime of possession of a weapon as a misdemeanor, in this case, is a lesser included offense with respect to the crime of robbery in the first degree since it is obviously a lesser offense and since this defendant could not have committed the robbery without concomitantly committing by the same conduct the crime of possession of a weapon (see CPL 1.20, subd 37).

As it is abundantly clear that under the facts of this case, which are the applicable criteria in determining whether a charge is a lesser inclusory concurrent count (see, e.g., People v Hayes, 35 NY2d 907, affg on opn at 43 AD2d 99; People v Grier, 37 NY2d 847; People v Lee, 39 NY2d 388), defendant could not have committed the crime of robbery in the first degree as defined in subdivision 3 of section 160.15 of the Penal Law without at the same time committing the crime of possession of a weapon as a misdemeanor, his conviction upon the robbery count requires a dismissal of the possession charge (see CPL 300.40, subd 3, par [b]). This is the conclusion which has been reached by the vast majority of courts which have dealt with similar situations (see, e.g., People v Flowers, 56 AD2d 660; People v Solomon, 56 AD2d 751; People v Lucas, 56 AD2d 780), and I see no justification for avoiding this statutorily mandated result.

Accordingly, I vote to modify the order appealed from by dismissing the conviction of defendant for the crime of possession of a weapon as a misdemeanor.

Chief Judge Breitel and Judges Jones, Fuchsberg and Cooke concur with Judge Jasen; Judge Gabrielli dissents in part and votes to modify in a separate opinion in which Judge Wachtler concurs.

Order affirmed.

      (Now Penal Law, § 265.01, subd [2].)