text:
    [813 NE2d 613, 780 NYS2d 533]
    The People of the State of New York, Respondent, v Lenworth Aarons, Appellant.
    Argued April 29, 2004;
    decided June 8, 2004

      POINTS OF COUNSEL

      Julian A. Hertz, Larchmont, for appellant.
    I. The failure of 12 grand jurors to vote an indictment generated a firm basis for the Supreme Court to have concluded that there was, in this case, no true bill and no indictment. (People v Foster, 279 AD2d 317; People v Wilkins, 68 NY2d 269; People v Dominique, 90 NY2d 880.) II. If this Court finds that People v Foster (279 AD2d 317 [2001]) does not control the facts in this case, defendant submits that other factors should be considered; i.e., the District Attorney should not be permitted a piecemeal presentation to the grand jury. (People v Goodfriend, 64 NY2d 695; People v Karp, 76 NY2d 1006.) III. The order of the Supreme Court was not appealable, since the District Attorney failed to seek judicial approval to again submit the charges to the grand jury. (People v Montanez, 90 NY2d 690.)

      Robert T. Johnson, District Attorney, Bronx {Stanley R. Kaplan and Joseph N Ferdenzi of counsel), for respondent.
    I. A grand jury announcement that it cannot muster at least 12 votes either to indict or dismiss does not constitute a vote of dismissal, and the presentation of additional evidence to the same grand jury thereafter is not prohibited. (People v Montanez, 90 NY2d 690; People v Wilkins, 68 NY2d 269; People v Cade, 74 NY2d 410; People v Groh, 57 AD2d 389; People v Gelman, 93 NY2d 314; People v Collier, 72 NY2d 298; People v Coleman, 74 NY2d 381; People v Valdez, 277 AD2d 262; National Union Fire Ins. Co. of Pittsburgh, Pa. v Red Apple Group, 273 AD2d 140; Graham v Board of Supervisors of Erie County, 49 Misc 2d 459.) II. Defendant’s argument regarding “piecemeal presentation” is not properly the subject of this appeal, since it did not serve as the basis for the Appellate Division’s ruling on the People’s appeal and was not addressed by that Court; further, defendant’s contention that the order of the nisi prius court was not appealable is erroneous. (People v Goodfriend, 64 NY2d 695; People v Karp, 76 NY2d 1006.)
   OPINION OF THE COURT

G.B. Smith, J.

The issue in this case is whether a formal vote of 12 grand jurors is necessary to dismiss a charge. We conclude that it is and we affirm the order of the Appellate Division.

On Friday, March 19, 1999, after hearing testimony from various witnesses, including defendant, regarding an alleged break-in, a grand jury in Bronx County was deliberating on proposed charges of burglary, attempted robbery, criminal possession of a weapon, menacing, endangering the welfare of a child and harassment. The record indicates that the foreperson advised the prosecutor that the grand jury was having difficulty reaching a decision. The prosecutor asked the grand jury to cease deliberations so that she could present additional evidence. The following week, the prosecutor reconvened the grand jury, presented another witness and again asked the jurors to vote on the charges. The grand jury returned an indictment accusing defendant of burglary in the first degree and related crimes.

Defendant moved to dismiss the indictment, arguing that the initial failure of the grand jury to garner 12 votes for an indictment constituted a dismissal of the charges, thus requiring the prosecution to obtain leave of the court before presenting additional evidence to the grand jury. Supreme Court agreed, granted defendant’s motion and dismissed the indictment. The Appellate Division, with two Justices dissenting, reversed the order of Supreme Court and reinstated the indictment. The Court concluded that no inference of dismissal could be drawn from a grand jury’s temporary inability to vote for an indictment. Rather, the court held, a dismissal requires a concurrence of 12 grand jurors. The dissent reasoned that the Criminal Procedure Law does not require grand jurors to vote expressly on whether to dismiss a charge. A Justice of the Appellate Division granted defendant leave to appeal to this Court, and we now affirm the order of the Appellate Division. We hold that in order to dismiss a charge, there must be a formal vote of the grand jury and 12 of its members must concur in that result.

CPL 190.25 (1) states:

“Proceedings of a grand jury are not valid unless at least sixteen of its members are present. The finding of an indictment, a direction to file a prosecutor’s information, a decision to submit a grand jury report and every other affirmative official action or decision requires the concurrence of at least twelve members thereof.”

The issue, therefore, is whether a dismissal of pending charges constitutes an affirmative official action or decision of the grand jury under CPL 190.25 (1). We agree with the Appellate Division that a dismissal is such an affirmative official action.

The legislative history of grand jury procedure supports the conclusion that the dismissal of a charge is one of the official actions or decisions of a grand jury. Going back to the 19th century, New York’s former Code of Criminal Procedure required that upon failure of the grand jury to agree on an indictment, it must return a dismissal to the court, signed by the foreperson, expressly stating that the charge is dismissed. As originally enacted, Code of Criminal Procedure § 268 stated, in relevant part:

“An indictment cannot be found, without the concurrence of at least twelve grand jurors. When so found it must be indorsed, ‘a true bill’, and the indorsement must be signed by the foreman of the grand jury.”

Section 269 stated:

“If twelve grand jurors do not concur in finding an indictment, the depositions (and statement, if any) transmitted to them, must be returned to the court, with an indorsement thereon, signed by the foreman, to the effect that the charge is dismissed.”

Thus, even under the former procedural rules, a dismissal of a charge could not be merely inferred by the court, nor was it automatic upon the failure to indict. Rather, upon its determination that an indictment would not issue, the grand jury was required to expressly communicate to the court that the charges were to be dismissed.

On September 1, 1971, the Code of Criminal Procedure was replaced by the Criminal Procedure Law (McKinney’s Cons Laws of NY, Book 11 A, at 1; L 1970, ch 996, § 1). CPL 190.60 enumerates the actions that the grand jury may take upon hearing and deliberating on evidence with respect to a charge. Pursuant to that provision, the grand jury has the power to indict a person for an offense, direct the district attorney to file a prosecutor’s information with a local criminal court, direct the district attorney to file a request to remove the case to Family Court, dismiss the charge or submit a grand jury report.

Moreover, CPL 190.75 (1) states:

“If upon a charge that a designated person committed a crime, either (a) the evidence before the grand jury is not legally sufficient to establish that such person committed such crime or any other offense, or (b) the grand jury is not satisfied that there is reasonable cause to believe that such person committed such crime or any other offense, it must dismiss the charge. In such case, the grand jury must, through its foreman or acting foreman, file its finding of dismissal with the court by which it was impaneled.”

The language of both CPL 190.60 and 190.75 confirms that the Legislature did not intend that a grand jury’s dismissal of a charge be inferred from its failure to indict a suspect. Given that the grand jury also has the power to direct the filing of an information, to remove the case to Family Court or to submit a report, it is wrong to say that the failure to bring an indictment necessarily constitutes a dismissal of the charge. Instead, upon concluding that an indictment will not be issued, the grand jury must dismiss the charge by filing its determination with the court. Importantly, this rule ensures that the grand jury is actually aware that, by its action, the charges then pending against the defendant will be dismissed.

Clearly, like the other official decisions enumerated in CPL 190.60, the dismissal of a charge is for the grand jury to decide as part of its deliberations. Indeed, by requiring the grand jury, acting through the foreperson, to express to the court its decision to dismiss the charge (upon concluding that the evidence is either legally insufficient or does not establish reasonable cause to believe that the accused has committed the crime charged), the Legislature provides that a dismissal cannot occur absent the grand jury’s actual conclusion that a dismissal is warranted. For the court to infer a dismissal of a charge from the grand jury’s inability to make a decision as to what action it should take undermines this clear legislative intent and effectively eliminates one of the enumerated powers of the grand jury.

This case presents a clear example of how an inference of dismissal would subvert the power conferred upon the grand jury. Here, it was having trouble reaching a decision as to what action should be taken. Its members, who were deliberating on a Friday, certainly could not have known that, by merely recognizing their inability to reach a conclusion before the arrival of the weekend and communicating their current state of indecision to the prosecutor, they were effectively dismissing all charges against defendant. Nor is there any indication that they intended such a result. For a court to infer a dismissal under these circumstances ignores the plain import of the statute— that the grand jury actually be aware that it is dismissing the charges and that it communicate that decision to the court.

Having determined that a dismissal of a pending charge is an affirmative official action or decision for the grand jury to make, we further conclude that pursuant to CPL 190.25 (1), a concurrence of 12 jurors is necessary to effectuate a dismissal. Since there was no such concurrence on any of the enumerated actions, it was not improper for the prosecutor to ask the grand jury to cease its deliberations so that it could hear additional evidence, and she was not required to seek leave from the court before presenting any.

Defendant’s reliance on People v Montanez (90 NY2d 690 [1997]) for the conclusion that there was a dismissal here is misplaced. In Montanez, after three preliminary votes, 12 grand jurors voted to dismiss the charges. However, when informed of the decision, the prosecutor expressed his displeasure and advised the grand jury that they could reconsider their vote. This prompted the grand jury to request that an additional witness be called, which led to a subsequent vote to indict. Although a grand jury can reconsider a previous vote before it has been formally filed, the grand jury in Montanez did not act on its own initiative but acceded to the unsolicited suggestion of the prosecutor. As such, we concluded the new vote was not a sua sponte reconsideration but amounted to an improper re-presentment by the prosecutor, requiring dismissal of the indictment. Here, there was no vote by 12 grand jurors to dismiss. As such, there was no re-presentment or reconsideration implicating the prosecutorial interference concerns underlying our decision in Montanez.

Nor were the charges in this case withdrawn from one grand jury and submitted to a second, as occurred in People v Wilkins (68 NY2d 269 [1986]). There, we were concerned that a prosecutor could attempt to circumvent the restrictions on re-presentment without judicial approval by withdrawing a matter from a grand jury prior to a vote in order to submit it to another grand jury, perhaps more receptive to an indictment “without the consent of either the first Grand Jury or the court which impaneled it” {id. at 271). Here, the same grand jury that was initially unable to reach a decision ultimately voted to indict. Thus, the forum shopping concerns discussed in Wilkins are simply not present in this case.

In sum, we hold that in order for a grand jury to dismiss a charge, 12 of its members must concur in that decision. Accordingly, the order of the Appellate Division reinstating the indictment should be affirmed.

Ciparick, J. (dissenting). Because a prosecutor may not, without judicial leave and absent a sua sponte request from the grand jury, present additional evidence and resubmit a case after the grand jury failed to vote a true bill on the initial presentation, I respectfully dissent, and would reverse the Appellate Division.

This case presents a question of statutory interpretation, specifically whether the agreement of 12 jurors is required for a grand jury to dismiss submitted charges. Section 190.25 (1) provides, in part, that

“[t]he finding of an indictment, a direction to file a prosecutor’s information, a decision to submit a grand jury report and every other affirmative official action or decision [by a grand jury] requires the concurrence of at least twelve members thereof’ (CPL 190.25 [1] [emphasis added]).

As dismissal is not one of the individually listed actions, the question of whether a grand jury must by a concurrence of 12 members vote to dismiss turns on whether a dismissal falls into the category of an “affirmative official action or decision.” Since the general phrase follows words of particular meaning, it is to be construed as applying to actions of the same kind as those specifically enumerated (see People v Shapiro, 50 NY2d 747, 764 [1980]; see also McKinney’s Cons Laws of NY, Book 1, Statutes § 239 [b]).

CPL 190.25 (1) lists three actions—the finding of an indictment, a direction to file a prosecutor’s information and a decision to submit a grand jury report—as being similar to “every other affirmative official action” requiring the concurrence of 12 members. Unlike a dismissal, each of these named acts results in further proceedings against either the defendant or, in the case of a grand jury report, a public servant. A dismissal, on the other hand, ends the proceedings against the defendant altogether. There is no further action to be taken.

The original Practice Commentary to section 190.25 lends support to this distinction (see Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 190.25 [1971]). It notes that the part of “subdivision [1] which requires concurrence of twelve grand jurors for other official action [s]” did not exist in the Code of Criminal Procedure, which preceded the CPL (Denzer, supra, CPL 190.25, at 110). “Under the Code, there was a gap in the law because nowhere was it stated, for example, how many grand jurors were required to concur on the calling of a witness, on the granting of immunity to a witness, etc.” (Denzer, supra, CPL 190.25, at 110). It was this gap that section 190.25 was intended to fill. Similar to the examples found in the statute, the illustrations of affirmative official action listed in the Commentary advance the investigation of the charges against a defendant, as opposed to a dismissal which terminates all action.

No gap existed in the law concerning the duty of the grand jurors when they failed to garner a vote of 12 to indict. The Code required that an indictment be found by the concurrence of 12 jurors (see Code Crim Pro § 268), and provided that the grand jury had to dismiss the charges upon its failure to achieve such a vote. As noted by the majority, section 269 of the Code of Criminal Procedure provided, in pertinent part:

“If twelve grand jurors do not concur in finding an indictment, the depositions (and statement, if any) transmitted to them, must be returned to the court, with an indorsement thereon, signed by the foreman, to the effect that the charge is dismissed” (emphasis added).

While the CPL does not include this specific language, the statutory language governing a dismissal continues to be compulsory. The statute provides, in part, that “a grand jury may . . . [djismiss the charge before it, as provided in section 190.75” (CPL 190.60 [4]). Reference to section 190.75 clarifies the circumstances under which a dismissal of submitted charges is mandatory. CPL 190.75 (1) states:

“If upon a charge that a designated person committed a crime, either (a) the evidence before the grand jury is not legally sufficient to establish that such person committed such crime or any other offense, or (b) the grand jury is not satisfied that there is reasonable cause to believe that such person committed such crime or any other offense, it must dismiss the charge. In such case, the grand jury must, through its foreman or acting foreman, file its finding of dismissal with the court by which it was impaneled” (emphasis added).

In contrast, the finding of an indictment, direction to file a prosecutor’s information and the filing of a grand jury report are permissive acts, implicating the discretion of grand jurors. Section 190.65 (1) (a) of the CPL provides that “a grand jury may indict a person for an offense when . . . the evidence before it is legally sufficient to establish that such person committed such offense” (emphasis added). Similarly, the provisions of the statute governing both the grand jury’s direction to file a prosecutor’s information and its decision to submit a grand jury report employ the permissive word “may” (see CPL 190.70 [lj; see also CPL 190.85).

Thus, as the phrase “affirmative official action” takes its meaning from the acts enumerated in the statute, and other actions of like kind that advance the proceeding, I cannot agree that a dismissal, which terminates it, requires a vote of 12 grand jurors. I am in accord with the dissenting Justices of the Appellate Division that “[t]he CPL directs a grand jury to ascertain by a vote whether there are 12 members who would find an indictment and to report the result of that vote as an indictment if there are 12 or [as] a dismissal if there are not at least 12” (305 AD2d 45, 63 [2003]).

Here, the prosecutor presented all witnesses, including one at the specific request of the grand jury, and instructed the jurors on the law. She formally asked them to commence deliberations on the charges of burglary, attempted robbery, criminal possession of a weapon, menacing, endangering the welfare of a child and harassment. After some deliberations, the foreperson informed the prosecutor that the grand jurors could not “come to a decision either way.” Clearly, having reviewed the evidence first presented, the grand jury in effect found that it was not “legally sufficient to establish that [defendant] committed such crime[s] or any other offense[s]” (CPL 190.75 [1] [a]) or “that there [was no] reasonable cause to believe” that defendant committed the crimes charged or any other offense (see CPL 190.75 [1] [b]). Their inability to vote a true bill was equivalent to a rejection of the People’s case as legally insufficient or incredible.

Therefore, under the statute, since the evidence failed, the grand jurors were required to dismiss the charges. If this were not the case then a deadlocked grand jury might have to continue deliberating indefinitely, which could not have been the intent of the Legislature. That the grand jury did not “file its finding of dismissal with the court” (CPL 190.75 [1]) is of no consequence as filing goes to the finality of the dismissal, not to whether, in fact, there was a dismissal (see People v Montanez, 90 NY2d 690, 694 [1997]). Moreover, any confusion on the part of the grand jury concerning what action to take upon their failure to reach consensus, can be easily remedied by proper instruction.

Pursuant to CPL 190.75 (3), “[w]hen a charge has been so dismissed, it may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the people to resubmit such charge to the same or another grand jury.” The purpose of section 190.75 is to prevent prosecutorial overreaching, which may malign the grand jury’s integrity and independence. As we previously recognized, “[t]he statute was enacted to curb abuses that resulted from the common-law rule that allowed prosecutors to resubmit charges to successive Grand Juries ad infinitum until one voted an indictment” (Montanez, 90 NY2d at 693, citing People v Wilkins, 68 NY2d 269, 273 [1986]).

An exception to the prohibition against resubmission without leave of court exists “when the Grand Jury votes to dismiss a charge and then sua sponte decides to reconsider the matter before filing” the dismissal. (Id. at 694.) “A truly sua sponte reconsideration violates neither the letter nor the spirit of CPL 190.75 . . . [as] there is no possibility of prosecutorial overreaching.” (Id.) Only where a grand jury has undertaken “a self-initiated reconsideration” of its prior action may the prosecutor resubmit charges without judicial authorization. (Id.) This Court has been clear that a “prosecutor may not unilaterally intervene in the proceedings in any manner which causes or contributes to the Grand Jury’s decision to reconsider” a dismissal (id. at 695 [emphasis added]).

Here, the People argue that the colloquy between the prosecutor and the grand jury, concerning the failure of the grand jurors to come to a decision “either way,” signaled the grand jury’s openness to the reception of further evidence. The People contend that the foreperson’s communication with the prosecutor was an obvious indicator that the grand jury was in need of assistance. This argument is unavailing as the rule has never been that leave of court is excused where a grand jury appears to be in need of additional evidence; the grand jury must independently request such reconsideration.

Prudence suggests that we should not broaden the sua sponte exception to include implied requests by a grand jury or anything short of a self-initiated demand for further evidence. Such a rule would conflict with the policies underlying CPL 190.75, leaving great potential for prosecutors to get more than “one bite at the apple” (Montanez, 90 NY2d at 693). The statute provides that a court may grant one resubmission only (see CPL 190.75 [3]). Allowing unauthorized resubmissions on the presumption that the grand jury seemed open to new testimony will render ineffectual this statutory limitation.

Moreover, such resubmission disregards the District Attorney’s role as a legal advisor to the grand jurors in their proceedings. As the statutorily designated legal advisor of the grand jury (see CPL 190.25 [6]), “the prosecutor performs dual functions: that of public officer and that of advocate” (People v Huston, 88 NY2d 400, 406 [1996]). These responsibilities include “ ‘the prosecutor’s duty of fair dealing’ ” (Huston, 88 NY2d at 406 [citation omitted]).

Where a prosecutor has instructed the grand jury on the law and the grand jury, after deliberations, is unable to indict on the completed case before it, fairness suggests that the prosecutor must seek judicial permission before volunteering additional evidence. This is especially true where, as here, the evidence is in the form of a witness, who was known to the prosecutor when the charges were initially submitted, and the grand jury had exercised its power to request a witness during the first presentation. By permitting an unauthorized resubmission on the ground that the grand jury appeared open to further evidence, the majority holding would allow prosecutors to easily circumvent the statutory command of a single presentation and the requirement of leave of court for a second submission (see CPL 190.75 [3]). This conclusion undermines the policy of curbing potential prosecutorial excess embodied in CPL 190.75 (3), and should be rejected.

Applying the sua sponte rule, that judicial authorization is not required to resubmit charges where the grand jury has engaged in “a self-initiated reconsideration” of its prior dismissal (Montanez, 90 NY2d at 694), I conclude that the prosecutor’s introduction of new evidence and resubmission of the charges here violated CPL 190.75 (3). The People concede that the assistant in this grand jury proceeding has no detailed recollection of her conversation with the foreperson. Neither the assistant nor the foreperson testified at the hearing held by Supreme Court on this matter. The sole record evidence is the colloquy between the prosecutor and the jurors. After stating on the record that the grand jurors could not “come to a decision either way,” the prosecutor instructed the grand jury as follows:

“At this time I’m asking you to cease deliberations on this case at this time and I will attempt to bring in additional witnesses and give you additional testimony regarding the case of The People of the State of New York versus Lenworth Aarons and at that time sometime next week I will ask you to consider these charges again” (emphasis added).

Nothing in the prosecutor’s statement suggests that the grand jury, having failed to indict, made an independent request to hear additional testimony. On the contrary, in the circumstances presented, the prosecutor’s direction that the grand jury cease deliberations so that she could “attempt to bring in additional witnesses” indicates that she initiated the introduction of further evidence. While the prosecutor requested an on-the-record affirmation from the foreperson as to the grand jury’s failure to vote a true bill, she sought no such affirmation for her resolve to seek more evidence and “ask [the grand jury] to consider these charges again.” The prosecutor decided to take that course on her own initiative, apparently without input from the jurors and certainly without permission from the court.

As it was a Friday, she could have easily dismissed the grand jurors over the weekend and asked them to continue deliberating the following week. Instead, the prosecutor stopped deliberations, presented new evidence and recharged the grand jury on her own accord. It cannot be denied that, at the very least, her interference with the deliberations contributed to the grand jury’s reconsideration of the charges. As a prosecutor cannot unilaterally intervene in the proceedings in any way that causes or contributes to the grand jury’s decision to reconsider what is deemed a dismissal, the assistant’s actions here violated CPL 190.75 (3), prohibiting the resubmission of charges to the grand jury without leave of court.

Accordingly, the order of the Appellate Division should be reversed and the order of Supreme Court dismissing the indictment reinstated.

Judges Rosenblatt, Graffeo, Read and R.S. Smith concur with Judge G.B. Smith; Judge Ciparick dissents and votes to reverse in a separate opinion in which Chief Judge Kaye concurs.

Order affirmed.

       The foreperson read the following:
      “The panel is reminded that only those Grand Jurors who have heard all of the evidence presented in this case may vote on the charges and that twelve of those persons must concur in order for an official action to be taken.”


source: Caselaw Access Project

author: Cipaeick, J.

license: Public Domain

text:
    [813 NE2d 621, 780 NYS2d 541]
    In the Matter of Dominic J. Belmonte et al., Respondents, v Robert R. Snashall, as Chair of New York State Workers’ Compensation Board, et al., Appellants.
    Argued May 4, 2004;
    decided June 10, 2004

      POINTS OF COUNSEL

      Eliot Spitzer, Attorney General, Albany (Kathleen M. Treasure, Caitlin J. Halligan, Wayne L. Benjamin, Nancy A. Spiegel and Peter H. Schiff of counsel), for appellants.
    I. The Chair rationally construes “board certified” to mean certification by a medical specialty board, not the Workers’ Compensation Board. (Matter of Rosenblum v New York State Workers’ Compensation Bd., 309 AD2d 120; People v Mendez, 1 NY3d 15; Diaz v New York Downtown Hosp., 99 NY2d 542; Matter of Theroux v Reilly, 1 NY3d 232; Castro v United Container Mach. Group, 96 NY2d 398; 81 Franklin Co. v Ginaccini, 149 Misc 2d 124; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95; Matter of Ocean Hill-Brownsville Governing Bd. v Board of Educ., 30 AD2d 447, 23 NY2d 483; Criscione v City of New York, 97 NY2d 152; Aluminum Co. of Am. v Central Lincoln Peoples’ Util. Dist., 467 US 380.) II. The Chair’s selection of medical specialty boards recognized by the American Board of Medical Specialties or the American Osteopathic Association to provide the required certification comports with its delegation of the authority from the Legislature, furthers the remedial purpose of the statute, and is in all respects rational. (Matter of Employers Claim Control Serv. Corp. v Workmen’s Compensation Bd. of State of N.Y., 35 NY2d 492; Matter of Levine v Whalen, 39 NY2d 510; Dorst v Pataki, 90 NY2d 696; Matter of Rosenblum v New York State Workers’ Compensation Bd., 309 AD2d 120.)

      Ganz Wolkenbreit & Friedman, LLP, Albany (Robert E. Ganz of counsel), Hiscock & Barclay LLP (Stephen H. Volkheimer of counsel), and Sullivan, Cunningham, Keenan, Mraz & Lemire (Mary Mraz of counsel) for respondents.
    I. The proper interpretation of Workers’ Compensation Law § 137 (3) (a) supports the physicians’ position that medical specialty board certification is not required to be an independent medical examination provider. (Matter of Gruber v New York City Dept. of Personnel, 89 NY2d 225; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Moran Towing & Transp. Co. v New York State Tax Commn., 72 NY2d 166; Matter of Teachers Ins. & Annuity Assn. of Am. v City of New York, 82 NY2d 35; Matter of Dawn Joy Fashions v Commissioner of Labor of State of N.Y., 90 NY2d 102; Matter of Dworman v New York State Div. of Hous. & Community Renewal, 94 NY2d 359; Consumer Prods. Safety Commn. v GTE Sylvania, Inc., 447 US 102; Matter of Albano v Kirby, 36 NY2d 526; Matter of Tucker v Board of Educ., 82 NY2d 274; Cavallo v Utica-Watertown Health Ins. Co., Inc., 3 F Supp 2d 223.) II. The Workers’ Compensation Board’s actions in limiting independent medical examination authorization to those holding American Board of Medical Specialties/American Osteopathic Association credentials is arbitrary and capricious. (Matter of Pell v Board of Educ., 34 NY2d 222; Kuppersmith v Dowling, 93 NY2d 90; New York State Assn. of Counties v Axelrod, 78 NY2d 158, 191 AD2d 932, 82 NY2d 705; Matter of Brothers of Mercy Nursing & Rehabilitation Ctr. v Commissioner of N.Y. State Dept. of Health, 192 AD2d 50; Matter of Rosenblum v New York State Workers’ Compensation Bd., 309 AD2d 120.) III. If the statute’s reference to “board certified” is properly interpreted as a reference to medical specialty board as a prerequisite to independent medical examination authorization, then it is an unconstitutional delegation of governmental function to private parties. (General Elec. Co. v New York State Dept. of Labor, 936 F2d 1448; Szold v Outlet Embroidery Supply Co., 274 NY 271; Eubank v City of Richmond, 226 US 137; Washington ex rel. Seattle Tit. Trust Co. v Roberge, 278 US 116; Geo-Tech Reclamation Indus., Inc. v Hamrick, 886 F2d 662; Matter of Fink v Cole, 302 NY 216; Murtha v Monaghan, 7 Misc 2d 568, 5 AD2d 695, 4 NY2d 897; Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854.)
   OPINION OF THE COURT

Cipaeick, J.

This appeal presents a question of statutory interpretation— whether the term “board certified” as used in Workers’ Compensation Law § 137 (3) (a) means certification by a medical specialty board or certification by the Workers’ Compensation Board (WCB). We also address whether the regulations promulgated by the WCB appropriately defined “board certified” as certification by a medical speciality board recognized by either the American Board of Medical Specialties (ABMS) or American Osteopathic Association (AOA) (see 12 NYCRR 300.2 [b] [3]).

In 2000, the Legislature enacted the Injured Workers’ Protection Act (L 2000, ch 473), after a report by the New York State AFL-CIO and the New York Committee for Occupational Safety and Health detailing the problems with the then-in-place independent medical examination (IME) process within the workers’ compensation system (New York State AFL-CIO and New York Committee for Occupational Safety and Health, Unjust Treatment: ‘Independent’ Medical Examinations & Workers Compensation in New York State <www.nycosh.org/ IME_Reportl.html> [last updated Dec. 30, 2002]). According to the report, the IME system was not sufficiently regulated, resulting in improper and fraudulent examinations and reports. The report made several recommendations, including that IME physicians should be New York State licensed “and certified by the New York State Workers’ Compensation Board” (Unjust Treatment).

In response, the Injured Workers’ Protection Act added section 137 of the Workers’ Compensation Law to provide that “[o]nly a New York state licensed and board certified physician, surgeon, podiatrist or any other person authorized to examine or evaluate injury or illness by the board shall perform such independent medical examination” (Workers’ Compensation Law § 137 [3] [a]).

The statute goes on to state that IMEs “shall be performed by a practitioner who is licensed and board certified in the state of New York or any other person authorized to examine or evaluate injury or illness by the board” (Workers’ Compensation Law § 137 [5]). Although the Workers’ Compensation Law does not define the term “board certified,” it does define “[b]oard” as “the workmen’s [sic] compensation board of the state of New York” (Workers’ Compensation Law § 2 [2]).

In accordance with the new law, and consistent with the definition of board certified in current use as it relates to fee schedules, the WCB promulgated regulations defining “board certified.” Those regulations provide that, in order to conduct IMEs, a physician or surgeon must have an appropriate degree, meet the State Board of Medicine’s and Commissioner of Education’s licensing requirements and be “board certified” as further defined in the regulations (see 12 NYCRR 300.2 [b] [2] [ii] [a]). The regulations define “board certified” as “a physician or surgeon who is certified by a specialty board that is recognized by the [ABMS] or the [AOA]” (12 NYCRR 300.2 [b] [3]). There are separate requirements for podiatrists, chiropractors and psychologists, who are not medical doctors and cannot be certified by the ABMS or AOA (see 12 NYCRR 300.2 [b] [2] [ii] [b]-[d]).

Petitioners are New York State licensed medical doctors who, prior to the enactment of the challenged provisions, performed IMEs in the course of their practice. The WCB denied petitioners’ requests for authorization to conduct IMEs pursuant to Workers’ Compensation Law § 13-b (1) because they were not certified by an appropriate medical specialty board. Many of the petitioners are certified by specialty boards that are not recognized by ABMS or AOA. Some of the petitioners are “Crated” (designated a consultant in a certain speciality) by the WCB. This status is typically granted to those physicians certitied by the ABMS or AOA. However, the WCB occasionally grants a “C” rating to physicians who show a certain level of competence through years of experience, thus allowing such physicians to collect a higher fee for services.

Petitioners commenced separate CPLR article 78 proceedings seeking to annul the portion of 12 NYCRR 300.2 that required physicians to be ABMS or AOA board-certified in order to conduct IMEs, and to annul the WCB’s determination that petitioners were not authorized to conduct IMEs. After consolidating the actions, Supreme Court granted the petitions in part, finding that the language of the statute and the legislative history supported the interpretation that the term “board certified” referred to the WCB. Specifically, Supreme Court noted that the Workers’ Compensation Law defined the term “board” as the Workers’ Compensation Board (see Workers’ Compensation Law § 2 [2]), and held that the term should have the same meaning throughout section 137. The court also concluded that the WCB’s interpretation was irrational and that the determinations denying petitioners authorization to conduct IMEs should be annulled, converted the remainder of the proceedings to a declaratory judgment action and declared 12 NYCRR 300.2 (b) (2) (ii) (a) and 300.2 (b) (3) invalid insofar as they required physicians to be ABMS or AOA board certified.

The Appellate Division affirmed, agreeing that deference to the WCB was not required for this question of pure statutory interpretation. The Court also found that the legislative intent was to give the Chair of the WCB the authority to discipline IME providers and that this purpose was served by making the providers subject to WCB certification (304 AD2d 211, 215-216 [2003]). It did not determine whether the Board’s choice of the ABMS or AOA for certification was rational, finding the WCB’s interpretation incompatible with the statutory language. We now reverse.

Analysis

Although we reach the same conclusion as the WCB, this is not a case where its interpretation of a statute is entitled to deference. Deference is generally accorded to an administrative agency’s interpretation of statutes it enforces when the interpretation involves some type of specialized knowledge (see Mat ter of Gruber [New York City Dept. of Personnel], 89 NY2d 225, 231 [1996]). “By contrast, where ‘the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency’ ... In such circumstances, the judiciary need not accord any deference to the agency’s determination, and is free to ascertain the proper interpretation from the statutory language and legislative intent” (id. at 231-232 [citations omitted]).

A plain language reading of the statute supports the conclusion that “board certified” means certification by a medical specialty board. The phrase “board certified” is a term of art, typically understood to refer to approval by a designated group of professionals (see McKinney’s Cons Laws of NY, Book 1, Statutes § 233). This is especially true when the phrase is used to describe physicians, who are commonly referred to as board certified. The Legislature has also used the term “board certified” in other statutes to refer to a medical specialty board (see Correction Law § 43 [1]; Insurance Law § 4900 [b] [2] [A] [ii]; Public Health Law § 4900 [2] [b] [i] [B]).

Petitioners attempt to separate the word “board” from the phrase “board certified,” contending that “board” should be given the same meaning throughout the provision. However, “board” can have a different meaning on its own than it does as part of the phrase “board certified.” The statutory definition should not be applied mechanically, regardless of context. Indeed, there are several places in the Workers’ Compensation Law where the term “board” is not used to refer to the WCB (see e.g. Workers’ Compensation Law § 13-d [1] [referring to county medical board]). Thus, the most natural interpretation is that “board certified” refers to certification by a medical specialty board and we read the statute accordingly (see e.g. Castro v United Container Mach. Group, Inc., 96 NY2d 398, 401 [2001]).

We likewise reject petitioners’ argument that the WCB’s construction of the statute renders the term “podiatrist” superfluous. The statute as we interpret it provides that physicians and surgeons must be state licensed and medical board certified (see Workers’ Compensation Law § 137 [3]). A podiatrist, who is not a medical doctor and thus cannot be medical board certified, is an “other person” who may be authorized to perform IMEs by the WCB (see Workers’ Compensation Law § 137 [3] [a]). Indeed, as the WCB notes, the phrase “board certified” would be superfluous under petitioners’ construction, since Workers’ Compensation Law § 13-b (1) and (2) were specifically amended in the same bill to give the WCB the power to authorize providers to perform IMEs (L 2000, ch 473, § 4).

The Appellate Division, First Department has also addressed this issue and reached the same conclusion we reach today (see Matter of Rosenblum v New York State Workers’ Compensation Bd., 309 AD2d 120 [1st Dept 2003]). Although that Court found that the WCB’s interpretation of the statute was entitled to deference, it also stated that “the WCB’s interpretation of the statute, which comports with its plain language, its purpose and its legislative history and gives meaning to every phrase, was a sound one even as a matter of pure statutory construction” (Matter of Rosenblum, 309 AD2d at 123).

Having determined that “board certified” should be read as certification by an appropriate medical specialty board, we next address whether the regulations requiring certification by the ABMS or AOA are rational. The WCB is authorized to “adopt reasonable rules consistent with and supplemental to the provisions of this chapter” (Workers’ Compensation Law § 117 [1]). This Court reviews administrative regulations to determine whether they are rational and to ensure that they are not arbitrary or capricious (see Matter of Levine v Whalen, 39 NY2d 510, 518 [1976]).

We conclude that the regulations at issue are rational and relate to the goals of the Injured Workers’ Protection Act. The statute requires that IME physicians be certified by a medical specialty board. The ABMS and AOA are organizations of approved medical and osteopathic specialty boards. Indeed the Medical Society of the State of New York specifically requested that the WCB designate only ABMS and AOA certifying boards. Requiring such board certification promotes the purpose of the statute since it provides a greater level of quality assurance as the physicians authorized to perform IMEs have attained a certain degree of professional competence as recognized by the certifying boards. That some of the petitioners have been retained as impartial specialists for the WCB does not render the regulation irrational. The Workers’ Compensation Law does not require such specialists to be “board certified” (see Workers’ Compensation Law § 13 [e]). Only specialists selected by employers in the first instance to perform IMEs need to be board certified.

Petitioners’ remaining claims are likewise without merit. Accordingly, the order of the Appellate Division should be reversed, with costs, the petition should be dismissed and the subject regulations should be declared valid to the extent challenged herein.

Chief Judge Kaye and Judges G.B. Smith, Rosenblatt, Geaffeo, Read and R.S. Smith concur.

Order reversed, etc.

      . An independent medical examination is defined as: “an examination performed by an authorized or qualified independent medical examiner . . . for purposes of evaluating or providing an opinion with respect to schedule loss, degree of disability, validation of treatment plan or diagnosis, causal relationship, diagnosis or treatment of disability, maximum medical improvement, ability to return to work, permanency, appropriateness of treatment, necessity of treatment, proper treatment, extent of disability, second opinion or any other purpose recognized or requested by the board” (12 NYCRR 300.2 [b] [4]).

      . In response to the WCB’s request for input on the implementation of this legislation, the Medical Society of the State of New York (MSSNY) noted that there was some ambiguity in the text of the statute. MSSNY thus requested that the WCB’s regulations specify that physicians must be state licensed and board certified by a medical specialty board recognized by ABMS and AOA, in addition to authorization by the WCB, in order to perform IMEs. Several months later, MSSNY requested that some of its older physicians who had a certain degree of skill and knowledge—“C” ratings—be “[glrandfathered” based upon their experience and that the WCB consider creating an exception to the board certification requirement to accommodate them.

      . Two of the named petitioners died during the course of this litigation.

      . Before Supreme Court, the regulations were numbered 12 NYCRR 300-2.1 (b) (2) (i) and 300-2.1 (c).

      . Black’s Law Dictionary defines the adjective “board-certified” to mean “([o]f a professional) recognized by an official body as a specialist in a given field of law or medicine” (Black’s Law Dictionary 166 [7th ed 1999]).


author: Graffeo, J.

text:
    [813 NE2d 626, 780 NYS2d 546]
    The People of the State of New York, Respondent, v Eugene Konieczny, Appellant.
    Submitted May 6, 2004;
    decided June 10, 2004

      POINTS OF COUNSEL

      Michael J. Violante, Public Defender, Lockport (Joseph G. Frazier of counsel), for appellant.
    I. The order of protection was void ab initio. (People v Said, 120 AD2d 961.) II. A lawful order is a jurisdictional predicate to a criminal contempt charge and the issue of lawfulness survives a guilty plea for the purpose of appeal. (People v Alexander, 97 NY2d 482; People v Muniz, 91 NY2d 570; People v Hansen, 95 NY2d 227; People v Blakley, 34 NY2d 311; People v Parker, 271 AD2d 63; People v Iannone, 45 NY2d 589; People v Case, 42 NY2d 98; People v Giglio, 74 AD2d 348; People v Samms, 95 NY2d 52; People v Boston, 75 NY2d 585.)

      Matthew J. Murphy, III, District Attorney, Lockport (Thomas H. Brandt of counsel), for respondent.
    I. The order of protection was not void ab initio. (People v Said, 120 AD2d 961; People v Fenti, 234 AD2d 953, 89 NY2d 985.) II. A lawful order is not a jurisdictional predicate that survives a guilty plea. (People ex rel. Fortson v Dean, 9 AD2d 855; People v Iannone, 45 NY2d 589; People v Ray, 71 NY2d 849; People v Riley, 267 AD2d 1072; People v Case, 42 NY2d 98; People v Samms, 95 NY2d 52; People v Polanco, 2 AD3d 1154; People v Scott, 3 NY2d 148.)
   OPINION OF THE COURT

Graffeo, J.

Defendant was charged with criminal contempt in the second degree based on allegations that he violated an order of protection issued incident to a bad check prosecution. Represented by counsel, he pleaded guilty to attempted criminal contempt in the second degree. On appeal, defendant asserted that his conviction should be reversed and the accusatory instrument dismissed on the ground that the order of protection was invalid under CPL 530.13 (4) because the party protected was not a victim or witness in the bad check proceeding. County Court concluded that the argument had been forfeited by defendant’s guilty plea. We agree and affirm the judgment of conviction.

In May 2000, defendant appeared in the North Tonawanda City Court with his attorney and entered a guilty plea to disorderly conduct in satisfaction of a bad check charge. He was sentenced to a conditional discharge and ordered to pay restitution in the amount of $80. A week after he pleaded guilty, defendant again appeared in City Court. Although the transcript of this proceeding is not part of the record in this case, City Court apparently issued an order of protection directing defendant to stay away from a particular person, referred to for our purposes as Gary M. The order of protection, which is included in the record, is predicated on CPL 530.13, the statute authorizing the issuance of orders of protection in favor of victims and witnesses in criminal actions. The order does not indicate whether Gary M. is a witness or victim with any connection to the bad check charge. Compliance with the order was added as a requirement underlying the conditional discharge. Defendant signed the order of protection, acknowledging that he was present at the time it was issued and knew its contents.

One month later, police officers executed a search warrant at Gary M.’s residence and discovered defendant there in violation of the order of protection. Defendant was arrested and charged by misdemeanor information with criminal contempt in the second degree. The information was signed by three police officers who averred that they personally observed defendant in the residence and that his presence was “in violation of an Order of Protection that was issued by North Tonawanda City Court. . . on the 18th day of May, 2000 prohibiting the defendant from being at that residence.” A copy of the order of protection was attached to the information.

When defendant and his attorney appeared in City Court on the criminal contempt charge on June 29, 2000, defense counsel questioned whether it had been appropriate to issue the order of protection incident to a bad check prosecution, although he did not argue that the protected party was neither a victim nor a witness to the bad check incident. The court responded that it had determined the order was necessary based on an indicated report of abuse from the Department of Social Services and information from concerned citizens that defendant was abusing Gary M. The matter was adjourned to provide the defense an opportunity to file motions.

Two weeks later, with his attorney present, defendant pleaded guilty to attempted criminal contempt in the second degree. During the plea colloquy, City Court stated that it was continuing the order of protection. There was no objection by the defense. At sentencing, the court advised defendant that a permanent order of protection would be issued in favor of Gary M. Again, defendant raised no objection.

On appeal, defendant argued for the first time that the order of protection underlying the criminal contempt charge was invalid under CPL 530.13 because Gary M. was not a victim or witness relating to the bad check charge. County Court questioned whether the issue was preserved for review but found that, even if it were deemed sufficiently preserved, defendant had forfeited the claim by pleading guilty. A Judge of this Court granted defendant leave to appeal.

CPL 530.13 (4) authorizes a court to issue a permanent order of protection in favor of a victim or witness in a criminal action. In People v Nieves (2 NY3d 310, 316 [2004]), we noted that the “primary intent of the statute is to ensure that victims and ‘witnesses who have the courage and civic responsibility to cooperate with law enforcement officials are afforded the maximum protection possible.’ ” A court cannot rely on CPL 530.13 (4) to issue an order of protection for a party unrelated to the underlying criminal action.

In Nieves, this Court held that a permanent order of protection issued at the conclusion of a criminal action is appealable as part of the judgment of conviction. We also held that a challenge to the scope or duration of such an order must be preserved by objection in the issuing court. Here, defendant did not appeal from the disorderly conduct conviction and apparently did not object to the order of protection when it was originally issued. Rather, defendant violated the order, ultimately pleading guilty to attempted criminal contempt.

Thus, the threshold question in this case is whether defendant’s challenge to the validity of the order of protection is reviewable despite his guilty plea to attempted criminal contempt. “A plea of guilty, as we have repeatedly observed, generally marks the end of a criminal case, not a gateway to further litigation” (People v Hansen, 95 NY2d 227, 230 [2000]). In Hansen, we held that by pleading guilty, defendant had forfeited his challenge to the prosecutor’s submission of hearsay evidence before the grand jury. We reasoned that where a defendant pleads guilty, the “conviction rests directly on the sufficiency of [the] plea, not on the legal or constitutional sufficiency of any proceedings which might have led to [a] conviction after trial” (id., quoting People v Di Raffaele, 55 NY2d 234, 240 [1982]). Thus, “[a] guilty plea generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings” (People v Fernandez, 67 NY2d 686, 688 [1986]).

We have, however, recognized exceptions to the forfeiture rule. “The limited issues surviving a guilty plea in the main relate either to jurisdictional matters (such as an insufficient accusatory instrument) or to rights of a constitutional dimension that go to the very heart of the process (such as the constitutional speedy trial right, the protection against double jeopardy or a defendant’s competency to stand trial)” (People v Hansen, 95 NY2d at 230).

Defendant acknowledges that a guilty plea forfeits most appellate claims but argues that the present claim is reviewable despite the guilty plea because it involves the jurisdictional predicate underlying the validity of the accusatory instrument. He reasons that the order of protection was “void ab initio” because, he claims, Gary M. was neither a victim nor a witness. He argues that this asserted defect in the order rendered the later prosecution for criminal contempt jurisdictionally barred.

The People do not dispute that a prosecution for criminal contempt in the second degree requires proof that defendant intentionally disobeyed or resisted “the lawful process or other mandate of a court” (Penal Law § 215.50 [3]). As such, had defendant declined the plea offer, the People would have had the burden of establishing that the order of protection was valid either in response to a pretrial motion to dismiss or at trial. However, because defendant pleaded guilty without creating a record on the issue, the People note that in order to determine Gary M.’s status in the prior proceeding, this Court would have to conduct a collateral review of the prior proceeding based on documents and transcripts outside the record in this case. The People argue that defendant forfeited his right to challenge the validity of the order of protection by pleading guilty and, even if that order were invalid, this would not rise to the level of a jurisdictional defect.

While the record is less than clear as to the circumstances giving rise to issuance of the order of protection, it raises a serious concern that Gary M. was not involved in the earlier bad check prosecution. Needless to say, we cannot condone the misuse of CPL 530.13 to issue an order of protection in favor of a party unrelated to a pending prosecution. If there was reasonable cause to believe that defendant had committed a crime against Gary M., the appropriate procedure would be for the prosecutor to commence a separate criminal action and seek an order of protection in that proceeding protecting Gary M. as a victim, not for the court to short circuit that process by applying CPL 530.13 in a manner clearly not intended by the Legislature.

That being said, however, in this case we have no occasion to further address the validity of the underlying order of protection because defendant’s claim that City Court violated CPL 530.13 does not implicate the jurisdiction of the courts and therefore did not survive his guilty plea. To the extent defendant argues that the allegations in the accusatory instrument relating to the order of protection were jurisdictionally insufficient, the argument survives his guilty plea but is without merit because the information and supporting documents adequately pleaded that defendant violated a court order.

Defendant’s CPL 530.13 argument is not of constitutional dimension but rests on the allegation that City Court erred when it issued the order of protection because Gary M. was not a witness or victim in the bad check prosecution. Generally speaking, statutory violations that do not implicate constitutional rights have not been deemed jurisdictional in nature (see e.g., People v Mills, 1 NY3d 269 [2003] [statute of limitations defense is not jurisdictional and can be forfeited by defendant]; People v Prescott, 66 NY2d 216 [1985], cert denied 475 US 1150 [1986] [guilty plea results in forfeiture of statutory double jeopardy]; People v Taylor, 65 NY2d 1 [1985] [failure to provide CPL 710.30 notice forfeited by guilty plea]; People v Sobotker, 61 NY2d 44 [1984] [right to statutory immunity forfeited by guilty plea]; People v Thill, 52 NY2d 1020 [1981], cert denied 454 US 829 [1981] [statutory speedy trial claim forfeited by guilty plea]).

In this respect, defendant’s challenge is not to the form of the misdemeanor information and cannot be resolved by review of that document. To the contrary, regardless of the manner in which the accusatory instrument was drafted, defendant contends that no misdemeanor information based on the order of protection could be valid because the order itself was fatally flawed.

Yet, even where a defendant has pointed to an irregularity in the accusatory instrument, it is clear from our precedent that not every deficiency implicates the jurisdiction of the court. “So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading” (People v Casey, 95 NY2d 354, 360 [2000]). An information is jurisdictionally sufficient if it contains allegations which would establish, “if true, every element of the offense charged and the defendant’s commission thereof’ (CPL 100.40 [1] [c]). Although an information should be based on nonhearsay allegations, “a purported hearsay defect in an accusatory instrument is nonjurisdictional and, thus, forfeited by a guilty plea” (People v Keizer, 100 NY2d 114, 121 [2003]).

Defendant’s claim in this case is similar to the argument this Court rejected in People v Casey, which also involved a criminal contempt prosecution. There, defendant asserted that the People’s failure to allege in the misdemeanor information that the temporary order of protection was in effect on the date of the alleged violation amounted to a fatal flaw because the order was not attached to the information, nor was its expiration date cited in that instrument. This Court noted that the “far better practice” is to attach a copy of the order of protection to the information, although the failure to do so did not amount to a jurisdictional defect (95 NY2d at 359).

We concluded in Casey that “[a]ny challenge to . . . whether the order was in effect on the date of the contumacious conduct! ] was a matter to be raised as an evidentiary defense to the contempt charge, not by insistence that this information was jurisdictionally defective without annexation of the order to that accusatory instrument” (id. at 360). The information was deemed jurisdictionally sufficient because the victim had signed a supporting deposition, attached to the information, which stated that a temporary order of protection was in effect and she personally observed defendant violating it. We reasoned: “the fair implication of these averments established her firsthand knowledge that the order had been granted, was in effect and was violated by defendant’s harassing or criminal conduct on the date of the offense” (id.). Under Casey it is evident that an accusatory instrument must be given a reasonable, not overly technical reading and this Court will not rely on external factors to create jurisdictional defects not evident from the face of the document.

The alleged defect the Court discussed in Casey stands in contrast to the omission in People v Alejandro (70 NY2d 133 [1987]), a resisting arrest conviction dismissed due to a jurisdictional defect in the misdemeanor information. Although an element of the offense of resisting arrest is that the underlying arrest be lawful, the officers who executed the information failed to allege any facts to support this element because they did not establish either that the arrest was predicated on a warrant or that the officers themselves had probable cause to effect an arrest based on their own observations of defendant. Under Alejandro, it is evident that an information is facially deficient if it entirely fails to address an element of the offense charged.

The accusatory instrument in this case does not suffer from the defect identified in Alejandro because the element defendant challenges on appeal was sufficiently pleaded. The misdemeanor information specifically referenced the order of protection. In addition, although not a jurisdictional prerequisite to a valid accusatory instrument, the officers followed the “better practice” recommended in Casey of attaching a copy of the order to the information. In this context, the order was the functional equivalent of a supporting deposition for it corroborated and amplified the allegations in the information concerning the existence and terms of the judicial mandate defendant was alleged to have violated. There is no evident flaw in the order of protection—on its face, it appears to be enforceable. Granted, the order does not indicate whether Gary M. is a victim or witness but this is not a defect because neither CPL 530.13 (4), nor the form order promulgated by the Chief Administrator of the Courts pursuant to CPL 530.13 (9), requires the issuing court to designate the protected party’s status on the face of the order (see 22 NYCRR subtit D, ch VI, criminal form l). As a facially valid judicial mandate, the order of protection was entitled to the presumption of regularity for purposes of fulfilling the pleading requirements (see generally People v Dominique, 90 NY2d 880 [1997]), although the presumption could have been rebutted had defendant challenged the basis of the order in a pretrial motion or at trial.

The order of protection in this case is analogous to the arrest warrant discussed in Alejandro: had the officers in Alejandro alleged that they arrested defendant based on a warrant—a judicial mandate arising after a probable cause determination— the accusatory instrument in that case would have been jurisdictionally sufficient, although defendant could have challenged the validity of the warrant in a pretrial motion to dismiss or at trial. The same is true here. Had defendant opted to challenge the validity of the order—an element of the offense of criminal contempt in the second degree—rather than to plead guilty in the criminal contempt proceeding, he could have pursued his argument that the order of protection was invalid. Similar to the conclusion we reached in Casey, however, “whether the order was [valid] on the date of the contumacious conduct[ ] was a matter to be raised as [a] . . . defense to the contempt charge, not by insistence that this information was jurisdictionally defective” (95 NY2d at 360). Having pleaded guilty to attempted criminal contempt on a jurisdictionally valid accusatory instrument, defendant conceded every element of the offense, including the lawfulness of the order of protection, and forfeited his claim that the order violated CPL 530.13 (4).

Accordingly, the order of County Court should be affirmed. Chief Judge Kaye and Judges G.B. Smith, Cipajrick, Rosenblatt, Read and R.S. Smith concur.

Order affirmed.

      . Defendant had numerous opportunities to establish facts supporting the assertion he now raises on appeal, yet he failed to do so. Defendant apparently did not object to the order of protection when it was issued in the bad check proceeding and did not challenge the validity of the order in an appeal from the disorderly conduct conviction.
      In the later criminal contempt proceeding, defendant remained free to pursue the argument that the order of protection was not properly issued, notwithstanding his failure to appeal in the earlier proceeding. Yet, although defense counsel generally questioned the validity of the order in the criminal contempt prosecution, he did not raise the specific argument presented on appeal or make an offer of proof supporting such an argument to City Court. Defendant did not move to dismiss the accusatory instrument alleging a legal impediment to prosecution pursuant to CPL 170.30 (1) (f), nor did he develop the facts necessary to resolve the question of Gary M.’s relationship, if any, to the prior criminal proceeding. Instead, defendant pleaded guilty. And, in the presence of defendant and his attorney, City Court twice continued the order of protection without objection. Thus, in addition to the forfeiture issue, the preservation rule and the related requirement that a defendant create a record adequate for appellate review pose a hurdle in this case.

      . A designation would not, in any event, have satisfied defendant under the circumstances of this case. If the court had characterized Gary M. either as a victim or witness in the order, defendant would undoubtedly argue on this appeal that, despite the designation, Gary M. was not, in fact, a victim or witness in the first criminal case, rendering the order of protection invalid.

      . Orders of protection are filed in a statewide registry and are enforced by a myriad of law enforcement agencies and courts throughout the state. In many instances, neither the authorities nor the court where the order of protection is violated will be in a position to know the events giving rise to issuance of the order (or the protected party’s role in those events) at the time the accusatory instrument is drafted, nor in most cases is there any reason to question the validity of a facially valid order. Were a defendant able to plead guilty and later challenge the validity of the order as a jurisdictional defect on appeal, both the efficacy of orders of protection and the finality of guilty pleas would be compromised. Since defendant and defense counsel are often the parties most knowledgeable about the background of the order of protection, it is incumbent upon the defense to timely raise any issue relating to the validity of the order.


author: Read, J.

text:
    [813 NE2d 632, 780 NYS2d 552]
    The People of the State of New York, Respondent, v Eric Providence, Appellant.
    Argued June 3, 2004;
    decided June 29, 2004

      POINTS OF COUNSEL

      Legal Aid Society Criminal Appeals Bureau, New York City (John Schoeffel and Laura R. Johnson of counsel), for appellant.
    Where the court permitted appellant to give up the uniquely important right to counsel and proceed pro se at the suppression hearing and trial, its complete failure to “delve into” any factors pertaining to appellant’s background and wherewithal to represent himself—as required to “affirmatively” establish a competent and valid waiver, under the specific mandate of People v Arroyo (98 NY2d 101 [2002])— requires reversal as a matter of law. (People v Smith, 92 NY2d 516; People v McIntyre, 36 NY2d 10; People v McKiernan, 84 NY2d 915; People v Cabassa, 79 NY2d 722; People v Sawyer, 57 NY2d 12; People v Allen, 39 NY2d 916; Faretta v California, 422 US 806; Johnson v Zerbst, 304 US 458; People v Duffy, 275 AD2d 1006; Gideon v Wainwright, 372 US 335.)

      Robert M. Morgenthau, District Attorney, New York City (Zachary H. Johnson and Patrick J. Hynes of counsel), for respondent.
    The trial court properly granted defendant’s request to proceed pro se. (Faretta v California, 422 US 806; People v Rosen, 81 NY2d 237; People v McIntyre, 36 NY2d 10; People v Koch, 299 NY 378; People v McLaughlin, 291 NY 480; People v Price, 262 NY 410; United States v Denno, 348 F2d 12; People v Arroyo, 98 NY2d 101; People v Vivenzio, 62 NY2d 775.)
   OPINION OF THE COURT

Read, J.

This case turns on whether the trial court undertook a “searching inquiry” to insure that defendant’s request to proceed pro se was accompanied by a “knowing, voluntary and intelligent waiver of the right to counsel” (People v Arroyo, 98 NY2d 101, 103 [2002]; see Faretta v California, 422 US 806, 835 [1975]; People v McIntyre, 36 NY2d 10, 17 [1974]). We have consistently refrained from creating a catechism for this inquiry, recognizing that it “may occur in a nonformalistic, flexible manner” (People v Smith, 92 NY2d 516, 520 [1998]). Further, when deciding whether a defendant actually understood the dangers of self-representation, a reviewing court may look to the whole record, not simply to the questions asked and answers given during a waiver colloquy (see People v Vivenzio, 62 NY2d 775 [1984]). Measured by these standards, defendant effectively waived his right to counsel in this trial, which took place more than a year before our decision in Arroyo.

I.

A police officer arrested defendant after seeing him selling drugs in Times Square in October 2000. A “CJA interview sheet” prepared following arrest (and placed in defendant’s court file) indicated that, at the time, defendant was 38 years old, had earned a GED and was a full-time student at New York Restaurant School. Defendant’s court file also contained a “NYSID report” detailing his date of birth and extensive criminal history, which dated to 1989 and included convictions for 3 felonies and 15 misdemeanors. At his arraignment, defendant was assigned counsel.

Following indictment, defendant prepared a dismissal motion pro se, in which he asserted that the drugs seized from him had not been properly tested. He went on to argue the merits of his motion at a hearing held to determine his request for a suppression hearing. Additionally, defendant asked to proceed pro se, with assigned counsel placed in a “standby” role.

After the court denied defendant’s dismissal motion, he displayed a relatively high level of familiarity with the criminal justice system, stating that “I’d like to preserve my rights under CPL 240.20, demanding the discovery of the proficiency of the chemist who tested everything right here on [the] record.” The court granted a suppression hearing, but declined to rule on defendant’s request to proceed pro se, deferring that issue to the trial court to which the case was to be assigned.

About six weeks later, defendant arrived in the trial court, which he asked to address. The trial judge admonished defendant that this was “not a good idea” and that it might be to his “detriment.” While acknowledging this advice, defendant persisted in his bid to speak personally. In a lengthy colloquy, he explained the previously denied motion. After the trial judge informed defendant that he would abide by the previous judge’s decision, defendant announced that he had “an application here to proceed pro se.” Several colloquies ensued, after which the trial judge granted defendant’s request to exercise his right to self-representation.

As defendant concedes here, the trial judge repeatedly and adequately warned him of the dangers of self-representation, and gave him several opportunities to express a change of heart. In each instance, defendant unequivocally asserted that he wished to proceed pro se. Following his repeated, unambiguous requests to represent himself and the trial judge’s increasingly detailed warnings and questions, defendant emphatically asserted that “Yes, I, Eric Providence, wish to proceed pro se and have my newly assigned counsel to remain as my legal advisor. Yes, I do.” The trial judge responded, “All right, then we will do that.”

Defendant went on to defend himself at both the suppression hearing and the subsequent trial. He was backed up by counsel, who consulted with him. During the hearing and trial, defendant made motions, raised objections and cross-examined the People’s witnesses. At trial, defendant conducted jury selection, and delivered an opening statement and summation. The jury convicted defendant, and the Appellate Division affirmed, with two Justices dissenting (308 AD2d 200 [1st Dept 2003]). A dissenting Justice granted defendant leave to appeal. We now affirm.

II.

The “searching inquiry” undertaken when a defendant waives the right to counsel in favor of self-representation is aimed at insuring that the defendant “was aware of the dangers and disadvantages of proceeding without counsel” (People v Slaughter, 78 NY2d 485, 492 [1991]; see also People v Mitchell, 61 NY2d 580, 584 [1984]; People v Kaltenbach, 60 NY2d 797, 798-799 [1983]; People v Sawyer, 57 NY2d 12, 21 [1982], cert denied 459 US 1178 [1983]). Defendant concedes, and the record establishes, that the trial court adequately fulfilled its responsibility to make him “aware of the dangers and disadvantages of self-representation” (Faretta, 422 US at 835).

Nonetheless, defendant contends that his waiver of counsel was ineffective. He argues that our decision in Arroyo mandates that, as part of the “searching inquiry,” the trial court must question a defendant on the record about his “ ‘age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver’ ” (People v Arroyo; 98 NY2d at 104, quoting People v Smith, 92 NY2d at 520). Neither Arroyo nor Smith ordains reversal of defendant’s conviction.

In Arroyo, we expressly noted that “we have eschewed application of any rigid formula and endorsed the use of a nonformalistic, flexible inquiry” (Arroyo, 98 NY2d at 104). In Smith, where the trial court removed counsel over the defendant’s protests, we said the same (Smith, 92 NY2d at 520-521). Accordingly, these two cases do not support defendant’s position that the trial court’s failure specifically to ask him pedigree questions mandates reversal. Put differently, a waiver of the right to counsel will not be deemed ineffective simply because a trial judge does not ask questions designed to elicit each of the specific items of information recited in Arroyo. We reiterate, though, that it is better practice to ask such questions and that record evidence “ ‘should affirmatively disclose that a trial court has delved into’ ” these matters (98 NY2d at 104, quoting Smith, 92 NY2d at 520).

Significantly, when determining if a defendant effectively waived the right to counsel, what we have required is “a reliable basis for appellate review” (Arroyo, 98 NY2d at 104; see also Smith, 92 NY2d at 520). Here, we have a “reliable basis.”

First, a reviewing court may look to the whole record, not simply to the waiver colloquy, in order to determine if a defendant effectively waived counsel. Indeed, in People v Vivenzio (62 NY2d 775 [1984]), the trial court did not ask any questions regarding “the defendant’s age, education, occupation and previous exposure to legal procedures” (People v Vivenzio, 96 AD2d 728, 728 [4th Dept 1983], revd 62 NY2d 775 [1984] [internal quotation marks omitted]). Yet, we concluded that “there could be a finding on this record that defendant knowingly and intelligently waived his right to counsel” (62 NY2d at 776 [emphasis added and citation omitted]). In reaching this conclusion, we noted that the trial court “determined that defendant was an adult who had been involved in the criminal process before” (id.). Since the waiver colloquy did not reveal this information, we obviously looked to the whole record (see id.', compare Dallio v Spitzer, 343 F3d 553, 563 [2003] [rejecting “rigid . . . formulas or scripted procedures” for counsel waivers, and noting that the effectiveness of a waiver can be gleaned from the “totality of the circumstances ”]). In light of the whole record here, there is no doubt that defendant understood exactly what he was doing when he waived his right to counsel.

The court file contained defendant’s pedigree information. Further, the trial judge had numerous opportunities to see and hear defendant firsthand. As a result, he had general knowledge of defendant’s age, literacy and familiarity with the criminal justice system. Finally, nothing in the lengthy colloquies in this record calls into question defendant’s ability to understand the trial judge’s detailed warnings regarding self-representation. Indeed, defendant’s performance during the suppression hearing and trial shows that he clearly understood the ramifications of waiving counsel. In sum, this record provides a “reliable basis” (Arroyo, 98 NY2d at 104) for us to conclude that defendant effectively waived the right to counsel.

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

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and R.S. Smith concur.

Order affirmed.


author: Rosenblatt, J.

text:
    [813 NE2d 887, 780 NYS2d 746]
    64th Associates, L.L.C., Appellant, v Manhattan Eye, Ear & Throat Hospital et al., Respondents.
    Argued May 4, 2004;
    decided June 8, 2004

      POINTS OF COUNSEL

      Wachtel & Masyr; LLP, New York City {John McConnell of counsel), for appellant.
    The Appellate Division’s holding—that judicial disapproval of an N-PCL 511 sale voids contractual provisions expressly addressing that contingency—imposes an erroneous global rule which is inconsistent with statutory language and violates the doctrine of separation of powers. (Matter of Anonymous, 40 NY2d 96; Bright Homes v Wright, 8 NY2d 157; Church of God of Prospect Plaza v Fourth Church of Christ, Scientist, of Brooklyn, 54 NY2d 742; Levovitz v Yeshiva Beth Henoch, 120 AD2d 289; Nature’s Bounty v Sturdee Health Prods. Co., 205 AD2d 435; Diocese of Buffalo v McCarthy, 91 AD2d 213, 59 NY2d 605; Wolkoff v Church of St. Rita, 132 Misc 2d 464, 133 AD2d 267; Cottle v Storer Communication Inc., 849 F2d 570.)

      McDermott, Will & Emery, New York City {Elliot Silverman and Andrew B. Roth of counsel), for Manhattan Eye, Ear & Throat Hospital and another, respondents.
    Judicial disapproval of the contract under N-PCL 511 bars an award of damages under that contract. (Church of God v Fourth Church of Christ, Scientist, of Brooklyn, 76 AD2d 712, 54 NY2d 742; Matter of Agudist Council v Imperial Sales Co., 158 AD2d 683; Nature’s Bounty v Sturdee Health Prods. Co., 205 AD2d 435; Rose Ocko Found, v Lebovits, 259 AD2d 685, 93 NY2d 997; Diocese of Buffalo v McCarthy, 91 AD2d 213; Manhattan Theatre Club v Bohemian Benevolent & Literary Assn. of City of N.Y., 120 Misc 2d 1094, 102 AD2d 788, 64 NY2d 1069; Scotto v Mei, 219 AD2d 181; Carmine v Murphy, 285 NY 413; McConnell v Commonwealth Pictures Corp., 7 NY2d 465; Pecora v Cerillo, 207 AD2d 215.)

      Stroock & Stroock & Lavan LLP, New York City {Albert M. Appel of counsel), for Lindsay C. Herkness and others, respondents.

      Eliot Spitzer, Attorney General, New York City {Michelle Aronowitz, Caitlin Halligan and Gregory Klass of counsel), for Attorney General of the State of New York, amicus curiae.
    I. Sections 510 and 511 of the Not-For-Profit Corporation Law require judicial oversight over termination-payment provisions. {Church of God of Prospect Plaza v Fourth Church of Christ, Scientist, of Brooklyn, 76 AD2d 712, 54 NY2d 742; Matter of Agudist Council v Imperial Sales Co., 158 AD2d 683; Diocese of Buffalo v McCarthy, 91 AD2d 213; Manhattan Theatre Club v

      Bohemian Benevolent & Literary Assn., 120 Mise 2d 1094, 102 AD2d 788, 64 NY2d 1069; Wolkoff v Church of St. Rita, 132 Misc 2d 464, 133 AD2d 267; Rose Ocko Found, v Lebovits, 259 AD2d 685.) II. Because termination-payment provisions are subject to the same degree of scrutiny as the decision to sell or otherwise dispose of assets, the provision at issue in this case is unenforceable. (Rose Ocko Found, v Lebovits, 259 AD2d 685; Wolkoff v Church of St. Rita, 132 Misc 2d 464; Matter of Church of St. Francis de Sales, 110 Misc 2d 511; Matter of Agudist Council v Imperial Sales Co., 158 AD2d 683; Church of God of Prospect Plaza v Fourth Church of Christ, Scientist, of Brooklyn, 76 AD2d 712; Manhattan Theatre Club v Bohemian Benevolent & Literary Assn., 120 Mise 2d 1094.)
   OPINION OF THE COURT

Rosenblatt, J.

Certain types of not-for-profit entities must obtain judicial approval before selling the bulk of their assets (see Not-For-Profit Corporation Law [N-PCL] § 510 [a] [3]; § 511). In the case before us, a not-for-profit hospital sought to sell its assets to a real estate developer and another hospital. The contract called for the hospital to reimburse the developer for out-of-pocket expenses in an amount up to $800,000 should the hospital fail to obtain judicial approval of the proposed sale. Supreme Court disapproved the sale.

In a subsequent action in which the buyers sought damages under the reimbursement provision, the lower courts concluded that judicial disapproval of the sale rendered the entire contract inoperative, including the provision for reimbursement. We hold that where, as here, the court disapproves a sale transaction of this type, it must also address reimbursement or similar provisions under the N-PCL 511 (d) standard, to determine whether the provision is fair, reasonable and in furtherance of the not-for-profit’s purpose.

I.

Manhattan Eye, Ear & Throat Hospital (MEETH), a not-for-profit specialty care hospital, operates principally out of three buildings located on East 64th Street. MEETH’s certificate of incorporation describes its corporate purpose:

“to establish, provide, conduct, operate and maintain a hospital in the City, County and State of New York for the general treatment of persons suffering from acute short-term illnesses; performing general plastic surgery; treating persons suffering from diseases of the eye, ear, nose or throat; and maintaining a school for post-graduate instruction in the treatment of such illnesses, performing such surgery, and the treatment of such diseases, and conducting associated and basic research.”

Throughout the 1990’s, MEETH experienced financial difficulties, and in 1999 decided to sell the buildings on 64th Street and close the hospital. It planned to sell one building to Memorial Sloan-Kettering Cancer Center for medical purposes and the others to plaintiff 64th Associates (Associates) for apartments.

Because the contract involved the sale of most of its assets, MEETH needed judicial approval pursuant to the Not-For-Profit Corporation Law (see N-PCL 510 [a] [3]). As required by statute, MEETH petitioned Supreme Court and notified the Attorney General (see N-PCL 511 [a] [9]; [b]). The court allowed the purchasers to appear as intervenors supporting the sale. The Attorney General opposed it.

Following a 13-day evidentiary hearing, Supreme Court refused to approve the transaction and denied MEETH’s petition. In a comprehensive writing, the court concluded that the proposed agreement was not fair and reasonable to the hospital because it failed to take the hospital’s business value into account and sought only to “monetize” the real estate, despite offers from other entities that would preserve the hospital. The court also noted that MEETH’s plan to close its doors as an acute care, research and teaching hospital and open diagnostic and treatment centers in Brooklyn and Harlem worked a fundamental change in its corporate purpose.

After the court disapproved the transaction, Associates sought return of its down payment and reimbursement for expenses pursuant to the contract’s “termination-payment provision,” which provides that:

“Purchaser shall have, as its sole and exclusive remedy, the right to have the Deposit returned along with accrued interest as well as be reimbursed for its out-of-pocket costs associated with this transaction up to a maximum of $200,000 in the aggregate with respect to MSKCC and $1,400,000 in the aggregate with respect to [Associates]; provided, however, that if [Associates] terminates the [Associates] Contract as a result of Seller not obtaining initial judicial approval ... on or before June 30, 2000, then the $1,400,000 reimbursement shall be decreased by $600,000 to a total aggregate of $800,000.”

MEETH returned the deposit but refused to reimburse expenses, arguing that the court’s disapproval nullified the entire contract.

Associates brought this breach of contract action for reimbursement under the above-quoted provision. Supreme Court granted MEETH’s motion to dismiss, holding that “[a]bsent judicial approval of a sale, the contract for sale never came into existence and is inoperative.” The Appellate Division affirmed, deeming Associates’ arguments as “contrary to the purposes of the statute—to protect charitable organizations from loss through unwise bargains.” (301 AD2d 462 [2003].) We granted leave to appeal, and for the reasons stated below, reverse and remit to Supreme Court.

II.

Ordinarily, courts are not involved in the oversight or approval of contracts and will enforce them unless illegal, against public policy or deficient in some other respect. The law is different in the case of not-for-profit entities. A chief difference is that not-for-profits, unlike their for-profit counterparts, by definition and concept do not have shareholders to whom profits are distributed. Given the absence of shareholders, profits and other market devices to ensure the efficacy of contracts and regularity of operations, the statute contemplates significant public oversight of the finances and major transactions of such entities.

When a not-for-profit corporation seeks to sell all or substantially all of its assets, N-PCL 510 and 511 set forth the procedure designed to “preserve charitable assets to serve public purposes” (Bjorklund, New York Nonprofit Law and Practice § 8-2 [a], at 238 [1997]). Thus, a Type B or Type C corporation must obtain leave of Supreme Court to enter into such a disposition (see N-PCL 510 [a] [3]). In its determination, Supreme Court must assess whether “the consideration and the terms of the transaction are fair and reasonable to the corporation and that the purposes of the corporation or the interests of the members will be promoted” (N-PCL 511 [d]; see Church of God of Prospect Plaza v Fourth Church of Christ, Scientist, of Brooklyn, 76 AD2d 712, 716 [2d Dept 1980], affd 54 NY2d 742 [1981]). Moreover, the Legislature required that the Attorney General be notified so as to represent the public interest.

Associates argues that the statute—and its requirement for judicial approval—governs only the sale of the assets, and not the reimbursement provision of the contract. We disagree. N-PCL 511’s requirements apply to the contract as whole. The statutory language does not limit the court to a narrow review of the contract, and plainly requires that it examine “the consideration and the terms of the transaction” (N-PCL 511 [d]), which include all facets of the agreement.

We hold that any termination-payment clause or similar damages or reimbursement provision in a sales transaction of this kind should be reviewed under the N-PCL 511 standard of fairness, reasonableness and furtherance of corporate purpose. As the Attorney General urges in his amicus brief, provisions of this type may be valuable to not-for-profits, permitting their boards to negotiate beneficially. At the same time, judicial scrutiny protects not-for-profit organizations against board actions that might be adverse to the entity’s well-being.

Here, the lower courts did not examine the reimbursement provision under the N-PCL 511 (d) standard. Instead, Supreme Court held that “[a]bsent judicial approval of a sale, the contract for sale never came into existence and is inoperative.” In affirming, the Appellate Division also concluded, in essence, that judicial disapproval of the sale automatically nullified the reimbursement provision. Moreover, in his denial of the motion for clarification (following the initial proceeding disapproving the sale of the hospital) Justice Fried stated that the validity of the reimbursement clause had not been before him.

MEETH and the Attorney General contend that there is enough in the record for us to conclude as a matter of law that the reimbursement provision does not meet the N-PCL 511 (d) standard. According to the Attorney General, Associates is claiming reimbursement of over $950,000 for expenses including architects, structural and mechanical engineers, environmental consultants, facade specialists, land use attorneys, zoning consultants and expediters. He argues that “[i]t is hard to imagine a good reason for the MEETH Board to agree to such a term, which allowed Associates and [Memorial Sloan-Kettering Cancer Center] together to incur up to $1.6 million in expenses risk-free, while obtaining the East 64th Street property at a fire-sale price.”

While these contentions are cogent, it would be improvident of us to make a legal determination as to the efficacy of the reimbursement provision, considering that neither the parties nor the courts below have addressed it under N-PCL 511 (d) criteria. Thus, we reverse and remit so that Supreme Court may determine, under N-PCL 511 (d), whether the reimbursement provision was fair and reasonable and in furtherance of the not-for-profit’s corporate purpose.

In future cases reimbursement provisions or similar clauses should be reviewed, whenever appropriate, in the same proceeding and under the same standard in which the court is asked to approve the sale. Moreover, our remand should not be taken as an occasion for a lengthy and drawn-out process. Over a 13-day period, Justice Fried conducted an extensive review of the relevant background and made a great many findings and conclusions. If additional proof is necessary for the court to address the validity of the reimbursement provision, we are confident that the court will hear it expeditiously, and with the same sensitivity it has shown, recognizing that the entity involved is a not-for-profit corporation.

The parties’ remaining arguments are without merit.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

Order reversed, etc.

      . Under N-PCL, there are four types of not-for-profit corporations: Types A, B, C and D (see N-PCL 201 [b]; Joint Legis Comm to Study Revision of Corporation Laws, Explanatory Mem No. 1 on Not-For-Profit Corporation Law, McKinney’s Cons Laws of NY, Book 37, at XV). N-PCL 510 (a) (3) mandates that Type B and C not-for-profits receive judicial approval of contracts to sell all or substantially all of their assets. MEETH is a Type B corporation, one of a species organized for charitable, educational, religious, scientific, literary or cultural purposes or for the prevention of cruelty to children or animals (see N-PCL 201 [b]; see also 1 Phelan, Nonprofit Enterprises: Corporations, Trusts, and Associations § 1:45, at 1-54).

      . Matter of Manhattan Eye, Ear & Throat Hosp, v Spitzer, 186 Misc 2d 126 (Sup Ct, NY County 1999).

      . Intervenor Lenox Hill Hospital (which assumed sponsorship of MEETH and became its sole corporate member) subsequently moved for clarification of Supreme Court’s denial of MEETH’s petition, and sought a declaration that the disapproval rendered the entire sales contract—including the reimbursement provision—unenforceable. Supreme Court denied the application, noting that because the parties did not raise the issue it had “no occasion to consider these now-disputed specific provisions of the sales contract.”

      . See e.g. Szerdahelyi v Harris, 67 NY2d 42, 48 (1986); McConnell v Commonwealth Pictures Corp., 7 NY2d 465, 469 (1960); see also Restatement (Second) of Contracts §§ 178-199; 5 Williston, Contracts § 12:1 et seq. (4th ed).

      . See N-PCL 102 (a) (5); 204, 508, 515; see also Boyd, A Call to Reform the Duties of Directors Under State Not-For-Profit Corporation Statutes, 72 Iowa L Rev 725, 730 n 52 (1987).

      . (See generally Fishman, Improving Charitable Accountability, 62 Md L Rev 218, 233 [2003]; Sasso, Searching for Trust in the Not-For-Profit Boardroom: Looking Beyond the Duty of Obedience to Ensure Accountability, 50 UCLA L Rev 1485, 1487-1488 [Aug. 2003].) The financial operations of not-for-profits have accounted for a sizeable and growing share of our nation’s economic activity (see Hansmann, The Role of Nonprofit Enterprise, 89 Yale LJ 835 [1980]). As of 2000, not-for-profit organizations held $1.6 trillion in assets (an eight percent increase from 1999), and reported $866.2 billion in revenue (see Arnsberger, Charities and Other Tax-Exempt Organizations, 2000, Statistics of Income Bulletin, US Government Printing Office [fall 2003], available at <http://www.irs.gov/pub/irs-soi/00eochin.pdf> [accessed May 20, 2004]).

      . The Not-For-Profit Corporation Law provides for state or judicial involvement in many aspects of regulation and governance. For example, judicial approval is required for the merger or consolidation of not-for-profit entities (see N-PCL 907). N-PCL also grants the Attorney General standing to maintain several types of actions against not-for-profit corporations, such as to dissolve a not-for-profit if it has acted fraudulently, ultra vi-res or was not duly formed; to sue directors for violations of their duties of care, loyalty and obedience; and to enforce any right given to members, directors or officers (see N-PCL 112 [a]; see generally Note, New York’s Not-For-Profit Corporation Law, 47 NYU L Rev 761 [1972]).