author: Read, J.

text:
    [21 NE3d 188, 996 NYS2d 559]
    In the Matter of Colin Realty Co., LLC, Appellant, v Town of North Hempstead et al., Respondents.
    Argued September 10, 2014;
    decided October 16, 2014

      POINTS OF COUNSEL

      Rosenberg Calica & Birney LLP, Garden City (Robert M. Calica and Judah Serfaty of counsel), for appellant.
    I. Use variances and not area variances were required. (Babigian v Wachtler, 181 AD2d 640; People v Taylor, 9 NY3d 129; Matter of Off Shore Rest. Corp. v Linden, 30 NY2d 160; Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449; Matter of Fulling v Palumbo, 21 NY2d 30; Merrick Gables Assn. v Fields, 143 AD2d 117; Matter of Il Classico Rest. v Colin, 254 AD2d 418; Matter of Halperin v City of New Rochelle, 24 AD3d 768; Matter of Marro v

      Zoning Bd. of Appeals of City of Long Beach, 287 AD2d 506; Matter of Board of Commrs. of Great Neck Park Dist. v Board o f Zoning & Appeals of Town of N. Hempstead, 188 AD2d 464.) II. The Town of North Hempstead Board of Zoning and Appeals’ determination was otherwise arbitrary and capricious, an abuse of discretion, and irrational. (Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86; Matter of Zwitzer v Zoning Bd. of Appeals of Town of Canandaigua, 74 NY2d 756; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Gabrielle Realty Corp. v Board of Zoning Appeals of Vil. of Freeport, 24 AD3d 550; Leibring v Planning Bd. of Town of Newfane, 144 AD2d 903; Matter of Qing Dong v Mammina, 84 AD3d 820; Matter of Switzgable v Board of Zoning Appeals of the Town of Brookhaven, 78 AD3d 842; Matter of Hampshire Mgt. Co. v Nadel, 241 AD2d 496; Matter of Preston v Board of Zoning Appeals of Town of N. Hempstead, 229 AD2d 585.)

      Amato Law Group, PLLC, Garden City (Simone M. Freeman and Megan F. Carroll of counsel), and Linda B. Zuech, Town Attorney, North Hempstead, for Town of North Hempstead and another, respondents.
    I. The lower court properly held that the variances sought for loading and unloading area and parking were properly treated as area variances. (Matter of Off Shore Rest. Corp. v Linden, 30 NY2d 160; Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 6 NY3d 890; Merrick Gables Assn. v Fields, 143 AD2d 117, 73 NY2d 707; Matter of Crossroads Recreation v Broz, 4 NY2d 39; Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 238; Matter of Board of Commrs. of Great Neck Park Dist. v Board of Zoning & Appeals of Town of N. Hempstead, 188 AD2d 464.) II. The Second Department properly determined that the Town of North Hemp-stead Board of Zoning and Appeals’ decision granting the requested loading and unloading and parking variances is rational and supported by substantial evidence contained in the record. (Matter of Halperin v City of New Rochelle, 24 AD3d 768; Matter of Cowan v Kern, 41 NY2d 591; Matter of Genser v Board of Zoning & Appeals of Town of N. Hempstead, 65 AD3d 1144; Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608; Matter of Frank v Zoning Bd. of Town of Yorktown, 82 AD3d 764; Matter of Ferencik v Zoning Bd. of Appeals of Town of Oyster Bay, 74 AD3d 807; Matter of Goldberg v Zoning Bd. of Appeals of City of Long Beach, 79 AD3d 874; Mat

      ter of Gebbie v Mammina, 13 NY3d 728; Matter of Sasso v Osgood, 86 NY2d 374; Matter of Genser v Board of Zoning & Appeals of Town of N. Hempstead, 65 AD3d 1144.)

      Albanese & Albanese LLP, Garden City (Bruce W. Migatz of counsel), for Manhasset Pizza LLC and another, respondents.
    I. The Town of North Hempstead Board of Zoning and Appeals properly treated the parking and loading zone variances as area variances. (Matter of Off Shore Rest. Corp. v Linden, 30 NY2d 160; Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449; Matter of Fulling v Palumbo, 21 NY2d 30; Matter of Otto v Steinhilber, 282 NY 71; Matter of Syracuse Aggregate Corp. v Weise, 51 NY2d 278; Matter of Nadell v Horsley, 264 AD2d 422; Incorporated Vil. of Laurel Hollow v Owen, 247 AD2d 585; Matter of Bohner v Casatelli, 38 AD3d 1230; Village ofValatie v Smith, 190 AD2d 17; Matter of Village of Bronxville v Francis, 1 AD2d 236, 1 NY2d 839.) II. The Town of North Hempstead Board of Zoning and Appeals’ decision granting the area variances for parking and loading zone is supported by the record. (Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309; Matter of Ifrah v Utschig, 98 NY2d 304; Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608; Matter of Retail Prop. Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190; Matter of P.M.S. Assets v Zoning Bd. of Appeals of Vil. of Pleasantville, 98 NY2d 683; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 7 NY3d 708; Matter of Toys “R” Us v Silva, 89 NY2d 411; Matter of Cowan v Kern, 41 NY2d 591; Matter of Von Kohorn v Morrell, 9 NY2d 27; Matter of Mobil Oil Corp. v Oaks, 55 AD2d 809.) III. The Town of North Hempstead Board of Zoning and Appeals (ZBA) properly refused to consider the objections by local property owners and businesses submitted in a petition to the ZBA subsequent to the closing of the public hearing. (Matter of Hampshire Mgt. Co. v Nadel, 241 AD2d 496; Matter of Stein v Board of Appeals of Town of Islip, 100 AD2d 590; Matter of Franklin Sq. Donut Sys., LLC v Wright, 63 AD3d 927, 14 NY3d 711; Matter of Metro Enviro Transfer, LLC v Village of Croton-on-Hudson, 5 NY3d 236; Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608.)
   OPINION OF THE COURT

Read, J.

This appeal calls upon us to revisit our decisions in Matter of Overhill Bldg. Co. v Delany (28 NY2d 449 [1971]) (Overhill) and Matter of Off Shore Rest. Corp. v Linden (30 NY2d 160 [1972, Scileppi, J., dissenting]) (Off Shore), which both dealt with variances from the off-street parking requirements of zoning ordinances. We now hold that a zoning board of appeals should evaluate requests for off-street parking variances by applying the standards for an area variance so long as the property is intended to be used for a purpose permitted in the zoning district. To the extent Off Shore suggests otherwise, it should no longer be followed and is overruled.

I

On February 4, 2011, Manhasset Pizza LLC (Manhasset Pizza) and Fradler Realty Corporation (Fradler) (collectively, the applicants) sought approval from the Town of North Hemp-stead Board of Zoning and Appeals (the ZBA or the Board) to place a 45-seat, full-service, dine-in restaurant in a storefront situated on Piándome Road in Manhasset, New York. Vacant since 2007, this storefront had most recently housed a retail gift shop; it is one of five storefronts in a one-story brick building constructed by Fradler in 1939 on property purchased the previous year. Restaurants are permitted in the Business A district in which the building is located, subject to the issuance of a conditional use permit.

In 1939, the Code of the Town of North Hempstead (the Town Code) did not obligate Fradler to provide off-street parking or loading/unloading areas for the building. By 2011, however, the Town Code imposed off-street parking requirements and standards throughout the Town. Specifically, the Town Code called for the restaurant, as proposed, to supply 24 off-street parking spaces (one space per every four seats for patrons, plus additional spaces as specified in the Code to account for employees and takeout service) and one off-street loading/unloading area. Two metered municipal parking lots are located near the property, and there is on-street parking along Piándome Road.

The ZBA held a hearing on the application on March 23, 2011. By decision dated and adopted on May 25, 2011, the Board granted the conditional use permit, subject to certain conditions, and the requested variances. Treating the application as a request for area variances, the Board concluded that the benefit to the applicants of granting variances from the Town Code’s parking and loading/unloading restrictions outweighed the detriment imposed on the community (see Town Law § 267-b [3] [b]). The Board noted that “[t]he subject storefront is located in a preexisting non-conforming building . . . originally developed with no parking[;] [therefore,] [a] parking variance is necessary to operate any business at the premises.” Additionally, the parking analysis submitted by the applicants’ traffic engineer indicated that “ample, if not excess, parking” was available in the vicinity. The ZBA observed further that a restaurant was “in harmony with the surrounding properties” and “consistent with the character of the community,” which predominantly consisted of retail, office and food uses.

On June 23, 2011, Colin Realty Co., LLC (Colin), the owner of a multi-tenant retail building next to the Fradler property, commenced this hybrid CPLR article 78 proceeding/declaratory judgment action against the Town of North Hempstead (the Town), the ZBA, certain members of the ZBA, Manhasset Pizza, and Fradler. Colin sought to annul the ZBA’s determination and obtain a judgment declaring, in effect, that the proposed restaurant required a use rather than an area variance from the Town’s parking and loading/unloading restrictions. The petition/complaint alleged that existing public parking was “overwhelmed” and inadequate to accommodate the applicants’ proposed “high volume use.”

On February 14, 2012, Supreme Court denied the petition and dismissed the proceeding/action on the merits, concluding that the ZBA had “rationally engaged in the statutorily mandated balancing test by . . . weighing the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted” (2012 NY Slip Op 30483[U], *10 [Sup Ct, Nassau County 2012] [internal quotation marks omitted]). Citing Overhill and appellate cases following OverhilVs reasoning, the judge rejected Colin’s argument that use variances were necessary to excuse the applicants from complying with the Town Code’s provisions for off-street parking and loading/unloading. And the court agreed with the applicants that a use variance was not necessary for the conditional use permit because “the proposed restaurant was not a non-conforming and/or prohibited use within the meaning of the Town Code” (id. at *14). Indeed, the judge added, since restaurants were conditionally permitted in the zoning district, they were “deemed presumptively consistent with the basic character of the surrounding community” (id.).

Colin appealed, and on June 5, 2013, the Appellate Division affirmed. Relying on Overhill and several of its own prior decisions, the court held that the “ZBA properly determined that the variances pursuant to which Manhasset Pizza sought relief from the parking and loading-zone requirements were to be treated as applications for area variances under the scheme of the Town Code” (107 AD3d 708, 709 [2d Dept 2013]). Further, “[inasmuch as the ZBA balanced and weighed the appropriate statutory factors, and based its findings on objective facts appearing in the record, its determination to grant the requested area variances was rational and not arbitrary and capricious” (id. at 710). The Appellate Division considered Colin’s remaining contentions to be without merit. We granted Colin permission to appeal on September 3, 2013 (21 NY3d 864 [2013]), and now affirm.

II

Town Law § 267 (1) defines and distinguishes between area and use variances as follows:

“(a) ‘Use variance’ shall mean the authorization by the zoning board of appeals for the use of land for a purpose which is otherwise not allowed or is prohibited by the applicable zoning regulations.
“(b) ‘Area variance’ shall mean the authorization by the zoning board of appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations” (emphases added; see also Village Law § 7-712 [1]; General City Law § 81-b [1]).

To obtain a use variance, the applicant must demonstrate to the zoning board of appeals that “applicable zoning regulations and restrictions have caused unnecessary hardship” (Town Law § 267-b [2] [b]). This imposes a heavy burden on the applicant, who must establish that

“for each and every permitted use under the zoning regulations for the particular district where the property is located, (1) the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence; (2) that the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood; (3) that the requested use variance, if granted, will not alter the essential character of the neighborhood; and (4) that the alleged hardship has not been self-created” (id.; see also Village Law § 7-712-b [2]; General City Law § 81-b [3]).

In making a determination whether to grant an area variance, the zoning board of appeals must “take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant” (id. § 267-b [3] [b]). To make this determination, the board weighs

“(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” (id.; see also Village Law § 7-712-b [3]; General City Law § 81-b [4]).

We have not discussed the classification of variances from off-street parking requirements since our decisions in Overhill and Off Shore, handed down in 1971 and 1972 respectively, or 20 years before the definitions of and criteria for evaluating use and area variances were regularized by statute, as described above (see L 1991, ch 692 [eff July 1, 1992]; see also L 1992, ch 248; L 1993, ch 208 [eff July 1, 1994]). The distinction between the two types of variance, initially created by decisional law, has always been important, as the pre-1992 standard for a use variance was, as remains the case under statute, clearly harder to satisfy than the test for an area variance, although the latter was plagued by confusing and often contradictory decisions. As we explained in Matter of Sasso v Osgood (86 NY2d 374, 381 [1995] [citations omitted]),

“[w]ithout any legislative guidance defining the requirements for an area variance, the courts began to develop a list of considerations to be applied under Town Law former § 267 . . . [T]hese criteria came to be know as the ‘practical difficulties’ test. The criteria notwithstanding, however, precise and concise definition of ‘practical difficulties’ never emerged from the case law. In particular, it remained unclear whether a showing of ‘significant economic injury’ was part of the ‘practical difficulties’ test.”

Matter of Fulling v Palumbo (21 NY2d 30 [1967]), which figured prominently in Overhill and Off Shore, articulated the “significant economic injury” test. In Matter of Doyle v Amster (79 NY2d 592, 596 [1992]), we partially overruled Fulling, which was subsequently fully superseded by statute (see Sasso, 86 NY2d at 383 [chapter 692 of the Laws of 1991 establishes the criteria for an area variance, and applicants no longer “need (to) show ‘practical difficulties’ as required under Town Law former § 267 and prior case law”]).

Here, Colin faults the lower courts for relying on Overhill, and claims that Off Shore (which both those courts cited, preceded by the signal “cf”) obligated the Board to apply the criteria for a use variance when considering whether to grant the applicants’ request for relief from the Town Code’s parking and loading/unloading restrictions. Colin claims this is the case because Off Shore “laid down the rule that the determinative factor ... is whether the local code imposes the off-street parking requirement based on area/square footage [calling for an area variance] or based on the intensity of the use [calling for a use variance].” We turn first, then, to an examination of Over-hill and Off Shore.

Overhill

In Overhill, a four-story building, located in a Business A district in the Village of Scarsdale, was completed in early 1955 as part of a combination office and apartment structure. At the time of the structure’s construction, local zoning regulations did not mandate off-street parking for office buildings, although an indoor parking garage was built, in part, it would appear, to comply with then-applicable parking requirements for apartment houses. This garage occupied the structure’s entire basement and part of the ground floor of the office building. The zoning ordinance was subsequently amended to require one off-street parking space for each 150 square feet of floor area of buildings used for (non-retail) business purposes and existing prior to November 1, 1959. The parking garage in the basement and ground floor of the office building supplied fewer spaces (117) than the amendment called for (306).

In 1970, Overhill Building Company (Overhill), the office building’s owner, applied for a permit to convert a portion of existing ground-floor garage space to business office use, thereby reducing the size of the garage. The building inspector denied the permit on the ground that the proposed modification did not comply with zoning regulations. Overhill then filed an appeal or application for variance with the zoning board of appeals.

At the ensuing hearing, Overhill submitted proof that the alteration would yield an additional $25,000 in annual income (the New York Telephone Company had essentially signed up to lease the new office space to be created); that the garage had never been occupied to its full capacity and would continue to be adequate even after completion of the alterations (this was apparently not disputed); and that none of the buildings in the district complied with the ordinance’s parking regulations (also undisputed). In its findings of fact, the zoning board of appeals determined that the requested variance, if approved, would require an additional 12 parking spaces and would also reduce the existing garage area by 12 spaces. The board therefore denied the application, reasoning that the requested variance would enlarge a nonconforming use and that the hardship, being self-created, was not entitled to relief.

Overhill commenced a CPLR article 78 proceeding against the zoning board of appeals and the building inspector, seeking to annul the board’s determination and compel issuance of the requested building permit. Supreme Court concluded that because Overhill asked for a building permit to convert garage space to office space, a use permitted in the district, the variance sought was properly treated as an area rather than a use variance. Applying Fulling, the judge decided that Overhill was entitled to the area variance and issuance of the building permit. The Appellate Division affirmed without opinion, with two Justices dissenting (Matter of Overhill Bldg. Co. v Delany, 35 AD2d 1012 [2d Dept 1970]).

On appeal to us, the zoning board of appeals contended that the lower courts had “erroneously treated [the] litigation as a matter involving an area variance,” and urged us to “adopt the view that [Overhill] sought a use variance and . . . since the law does not generally sanction enlargements of nonconforming uses, no variance should be granted” (Overhill, 28 NY2d at 453 [citation omitted]). We disagreed, explaining that

“when courts are faced with applications for variances from zoning regulations which prescribe the number of off-street parking spaces required for a building, the rules relating to area variances obtain ... In the present case [Overhill] is seeking to convert . . . garage space to office space, which is a permitted use. Consequently, while the change in this case is not strictly one of area, the variance is to be treated as an area variance . . . Stated differently, [Overhill’s] proposed alteration would conform to approved uses for Business A zones. However, since it is governed by an off-street parking requirement, a limitation on floor area, cases such as Matter of Otto v Steinhilber [(282 NY 71 [1939] [articulating criteria for obtaining a use variance])], are inapposite and the instant controversy must be resolved according to the law of area variances” (id. at 453-454).

We nonetheless reversed, based on application of Fulling, which held that “although financial hardship may satisfy the property owner’s initial burden, once the zoning authorities show that the ordinance promotes public health, safety or welfare, mere financial loss is insufficient to require a variance” from area restrictions (id. at 454). While Overhill had met its initial burden (“significant economic injury” as articulated in Fulling), the purpose of the parking regulations was to promote public safety by relieving traffic congestion, and the zoning authorities could have “reasonably determine [d] that further increases in the amount of square feet devoted to business use would be likely to result in traffic problems” (id. at 457). As a result, we opined, the zoning board of appeals’ decision to deny the variance could “only be considered arbitrary if the hardship caused deprive [d] the property owner of any use of the property to which it [was] reasonably adapted [and] mere financial loss [was not] hardship within the meaning of this rule” (id.). Here, all Overhill had shown was “mere financial loss” — i.e., $25,000 in lost rental income; it had “not been deprived of the use of its property [which] remain [ed] a valid apartment and business use” (id.).

Off Shore

In January 1969, Off Shore Restaurant Corporation (Off Shore), which operated a cocktail lounge in leased premises in the City of Long Beach, purchased nearby property, a parcel measuring 40 feet by 90 feet and virtually entirely occupied by a building with a store in front and an apartment in back. At the time, the store was a delicatessen and restaurant with seating capacity for approximately 62 people, which had been in business at that location for about 12 years. Off Shore intended to open and operate a restaurant and cocktail lounge in the building.

The building was situated in a Business B district; when it was erected in 1922, zoning regulations did not mandate off-street parking and none was provided. By the 1950s, though, the local municipal code mandated minimum off-street parking in all zoning districts in connection with the “alteration, erection or increase by units or dimensions of any building or structure.” For “restaurants, night clubs, tea rooms, lunch counters or the like,” the code required one off-street parking space for each four seats, plus such additional spaces for employee parking as the building commissioner deemed necessary. The code also specified in a related section that “[w]henever there is a change in the number of employees or business visitors or in the lawful use of the premises or in any other unit of measurement specified” for off-street parking requirements, and the change created a need to increase the number of spaces by more than 15%, this additional off-street parking had to be provided.

In December 1969, Off Shore applied to the building commissioner for a permit to allow it to remodel the building’s interior by installing wall paneling, new kitchen equipment and a bar, and modernizing the bathrooms. No structural changes or additions were contemplated; the building’s layout was to remain the same. Off Shore planned to increase restaurant seating capacity from 62 to 85, though. The commissioner denied the permit upon the ground that Off Shore’s proposed alterations were subject to and did not comply with the code’s parking regulations, described above.

Off Shore appealed, and also applied to the zoning board of appeals for permission to alter the premises for use as a restaurant and/or cocktail lounge or, in the alternative, for a waiver of the off-street parking requirements. Off Shore made two arguments; first, that the code exempted nonconforming buildings from the parking restrictions so long as no structural alterations were made or additions built and the intended use was permitted in the district; second, that, in any event, it had made a showing of practical difficulties, justifying an area variance. With respect to the first argument, Off Shore relied on the code’s saving provision.

The zoning board of appeals determined that the zoning ordinance obligated Off Shore to provide off-street parking space for 24 cars, and denied the application. The findings of fact emphasized that Off Shore’s building abutted a heavily traveled thoroughfare near a residential district, and that the use of the premises for a restaurant and. cocktail lounge without off-street parking threatened to exacerbate existing traffic congestion and the shortage of available parking spots. Additionally, the board opined that Off Shore had submitted no evidence to justify the granting of a variance, and that “practical difficulties and unnecessary hardships would not result in carrying out the strict letter of the ordinance.”

Off Shore commenced a CPLR article 78 proceeding against the building commissioner and the zoning board of appeals, seeking to compel the commissioner to issue a building permit that did not mandate compliance with the code’s parking regulations, and to annul the board’s determination to the extent it affirmed the commissioner’s decision and denied Off Shore’s application for a variance. Supreme Court sided with Off Shore. The judge held that the building was exempt from the code’s parking regulations because its contemplated use was not prohibited in the zoning district and no structural additions or alterations were to be made. The Appellate Division affirmed without opinion, with two Justices dissenting (Matter of Off Shore Rest. Corp. v Linden, 36 AD2d 948 [2d Dept 1971]).

On appeal to us, Off Shore again urged principally that its proposed alterations were exempt from the code’s parking restrictions by virtue of the saving provision. We reversed, with one Judge dissenting, holding that

“[t]he seating capacity of the proposed cocktail lounge would be over 15% greater [than the capacity of the preexisting delicatessen-restaurant], thus triggering a zoning provision applicable to preexisting uses, requiring additional off-street parking. Denial of a variance was not arbitrary since there remained a reasonable use of the property” (OffShore, 30 NY2d at 162-163).

The majority considered Off Shore’s interpretation of the saving provision to be incompatible with the code’s general provisions regulating changes in use and issuance of use permits, which forbade use of any building that had been altered or erected or a change in the use carried out in a building absent a use permit; and specified that a use permit would not be issued unless the building and use complied with all code requirements. According to the majority, these provisions “clarified] any ambiguities” in the saving provision and mandated “complete conformity” with the code, including its parking regulations, whenever any change in use occurred, even a change between uses permitted in the zoning district, as happened here (id. at 166). The increase in seats from 62 to 85 (not including new accommodations at the bar) exceeded the ordinance’s 15% threshold, triggering the need, the majority estimated, for approximately eight additional off-street parking spots. Since Off Shore’s application did not provide for any off-street parking, the zoning authorities had properly denied the permit.

The majority then turned to Off Shore’s request, in the alternative, for a variance. Observing as an initial matter, that “standards governing the zoning board’s discretion to grant or deny variances are found in case law,” the majority acknowledged that parking restrictions involve both use and area {id. at 168). In the paragraph that lies at the heart of the dispute in this case, the Off Shore court continued as follows:

“To be sure, off-street parking restrictions do not fall easily into either classification; hence, the divergence among the cases. Parking restrictions are an adjunct restriction sometimes tied to a use and at other times to an area restriction, generally depending upon the problem created by the use or the limited area involved. On this view, in determining the rules to govern variance from parking restrictions one should look to the reasons for the restrictions and then adapt rules applicable to use or area variances, whichever best meets the problem. Illustratively, a parking restriction may be required because the building lots are too small, or on the other hand, because the use of the building regardless of lot size will cause many vehicles to be brought to the site. Most often, the parking restriction will relate to uses, and the ordinance by requiring off-street parking for certain uses by a stated formula will so indicate, as in this case. In others, the parking restriction may be related by the ordinance to the area. That was the situation in [Overkill] where the requirement for off-street parking was defined in terms of the office space available in the subject building. The Overkill court, looking to [Fulling], with some qualifications it is true, applied rules applicable to area variances but also spoke of the test as one which was not met unless the owner was left with no reasonable use for his property. In this case, applying the rules applicable to use variances and in accord with the analysis in the Overkill case, it is material that [Off Shore] has made no showing that the property cannot yield a reasonable return without increasing the burden on street parking in violation of . . . the zoning ordinance. Indeed, there is no indication that the present use of the property as a delicatessen is not profitable. No hardship is shown except that a desired expansion is not available, and that is exactly what the policy in terminating nonconforming uses is designed to control” (id. at 169-170).

The dissenting Judge was not persuaded that “a permit should not issue simply because of a technical change from a delicatessen to a liquor-dispensing restaurant, even though both are permitted uses in the business zone” (id. at 170). He agreed with the courts below that absent an addition or structural alteration of the building, Off Shore’s proposed use was exempt from the code’s parking restrictions. The dissenting Judge then added that, if he could agree that the code’s off-street parking provisions did, in fact, apply to Off Shore, he would conclude that the zoning board of appeals had properly denied the variance, apparently based on Overkill (which he had authored) and Fulling. He chided his colleagues, however, for seeming to “retract from . . . [Overkill] where [the Court] recently postulated that off-street parking requirements take on the semblance of limitations on area and as such must be resolved according to that body of law” (id. at 170-171).

m

Colin bases its entire case on the paragraph from Off Shore quoted in full above. While far from clear, that paragraph, read in the context of the Overhill and Off Shore decisions, seems to say the following:

1. A parking restriction may relate to use or to area in the particular locality, depending upon “the problem created by the use or the limited area involved.”

2. In determining whether a variance from an off-street parking requirement is an area or use variance, “one [must] look to the reasons for the restrictions and then adapt rules applicable to use or area variances, whichever best meets the problem.” “One” seems to refer to the zoning authorities, but may also refer to a court attempting to glean the zoning authorities’ intent. In Off Shore itself, the majority interpreted the code to require a use permit for any change in use, even a change from one to another permitted use, and to obligate the applicant for such a use permit to comply with all code requirements in effect at the time of the application. Thus, the majority seems to have reasoned that this particular locality, by including especially stringent use permit provisions in its code, expressed a strong policy preference to speed up elimination of nonconforming uses, a goal “best [met]” or fulfilled by treating variances from off-street parking requirements as use rather than area variances.

3. In any event, the “reasons for the restrictions” will generally be apparent from the face of the ordinance, as the restriction will either relate to use, by stating a formula for certain uses (as in Off Shore)-, or, contrariwise, to area, by defining the restriction in terms of the space in the building (as in Overhill).

4. Even though the Overhill court considered the parking restriction to be an area variance, it held that the variance was properly denied because, applying the Fulling test, the owner (Overhill) could not show that it was “left with no reasonable use for [its] property.”

5. Whether applying the “rules applicable to use variances” (at the time, the undue hardship rule as articulated in Steinhilher) or “the analysis of Overkill” (the Fulling test), Off Shore did not make the showing necessary for a variance from the code’s off-street parking requirements.

This exegesis prompts several thoughts. First, since Off Shore was not entitled to a variance even under the more lenient test for an area variance, everything the majority in Off Shore said about use variances was extraneous to the decision and might be considered dictum. But these remarks were not unconsidered. To the contrary, the majority seems to have gone out of its way to try to narrow the Court’s then very recent decision in Overhill, as the dissenting Judge complained. In any event, the distinctions that the Off Shore majority sought to make are illusory. Off-street parking requirements are routinely tied to and vary with a use. In Overhill, the use was a (non-retail) business; in both Off Shore and this case, the use was a restaurant. And parking restrictions are generally amenable to expression in terms of either a formula or space, or some combination thereof. For example, here the Town Code called generally for a restaurant to provide one off-street parking space for every four seats for patrons; but the limitation could just as easily have been formulated in terms of one parking spot for every so many square feet of floor area devoted to patron use.

Finally, and whether dictum or not, OffShore’s declarations about use variances for off-street parking requirements have effectively been superseded by statute. Off Shore requested a building permit to make alterations in connection with a proposed change from one use permitted in the zoning district (delicatessen and restaurant) to another (cocktail lounge and restaurant). But as of July 1, 1994, General City Law § 81-b (1) has defined a “use variance” as an authorization for the use of land for a purpose “otherwise not allowed or . . . prohibited” in the zoning district; and an “area variance” as an authorization to use land “in a manner which is not allowed by the dimensional or physical requirements” of the zoning regulations (see also Town Law § 267 [1]; Village Law § 7-712 [1]). Off-street parking requirements, while differing depending on use, regulate how the property’s area may be developed, akin to minimum lot size or set-back restrictions. Accordingly, area variance rules apply to requests to relax off-street parking requirements so long as the underlying use is permitted in the zoning district; use variance rules prevail only if the variance is sought in connection with a use prohibited or otherwise not allowed in the district (see generally Terry Rice, Practice Commentaries, McKinney’s Cons Laws of NY, Book 61, Town Law § 267-b at 294-295).

In this case, Manhasset Pizza and Fradler applied for an off-street parking variance in connection with a change in the storefront’s use from a retail gift shop to a restaurant. Because both uses are permitted in the zoning district, the ZBA properly-considered the application as a request for an area variance. We have reviewed Colin’s remaining arguments and consider them to be without merit.

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

Chief Judge Lippman and Judges Graffeo, Smith, Pigott, Rivera and Abdus-Salaam concur.

Order affirmed, with costs.

      . The Town Code’s off-street loading/unloading requirements are based on area/square feet; i.e., one loading area for each 10,000 square feet for retail/warehouse uses, and one loading area for each 40,000 square feet for office/hotel/all other business uses. Thus, even under Colin’s reading of Off Shore, the ZBA properly applied the test for an area variance to the applicants’ request for a variance from off-street loading/unloading requirements.

      . By this time, the apartment house was under separate ownership; however, entry to the apartment building’s basement garage was via the office building’s basement garage.


source: Caselaw Access Project

author: Abdus-Salaam, J.

license: Public Domain

text:
    [21 NE3d 200, 996 NYS2d 571]
    The People of the State of New York, Appellant, v Earl Coleman, Respondent.
    Argued September 10, 2014;
    decided October 16, 2014

      POINTS OF COUNSEL

      James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), for appellant.
    Defendant is not eligible for resentencing pursuant to the Drug Law Reform Act since he is a persistent felony offender. (Portalatin v Graham, 624 F3d 69; People v Quinones, 12 NY3d 116, 558 US 821; People v Rivera, 5 NY3d 61, 546 US 984; People v Rosen, 96 NY2d 329, 534 US 899; People v Paulin, 17 NY3d 238; People v Norris, 20 NY3d 1068; People v Watson, 20 NY3d 182; People v Yusuf, 19 NY3d 314; People v Sosa, 18 NY3d 436; People v Santiago, 17 NY3d 246.)

      Jane M. Bloom, Monticello, for respondent.
    I. The Appellate Division, Third Department, was correct in finding respondent Earl Coleman statutorily eligible for resentencing under CPL 440.46 because his present sentence does not constitute an exclusion offense. (People v Sosa, 18 NY3d 436; People v Paulin, 17 NY3d 238; People v Green, 68 NY2d 151; People v Snow, 138 AD2d 217, 74 NY2d 671; People v Gregory, 80 AD3d 624, 17 NY3d 806; People v Dais, 19 NY3d 335; People v Norris, 20 NY3d 1068; People v Bennett, 28 Misc 3d 1210[A], 2010 NY Slip Op 51237[U]; People v Jones, 25 Misc 3d 1238[A], 2009 NY Slip Op 52483[U]; People v Brown, 26 Misc 3d 1204[A], 2010 NY Slip Op 50000[U].) II. Respondent Earl Coleman is statutorily eligible for resentencing based upon the clear and unambiguous language of CPL 440.46 which states that the disputed exclusion offense must be a previous offense. (People v Sosa, 18 NY3d 436; People v Buckery, 84 AD3d 1588; People v Brown, 85 AD3d 940, 18 NY3d 955; People v Brown, 26 Misc 3d 1204[A], 2010 NY Slip Op 50000[U]; People v Nieves, 27 Misc 3d 585, 94 AD3d 671; People v Crosby, 84 AD3d 1264; People v Lashley, 83 AD3d 868, 17 NY3d 818; People v Walltower, 84 AD3d 1124, 18 NY3d 929; People v Hill, 82 AD3d 77; People v Danton, 27 Misc 3d 638.)
   OPINION OF THE COURT

Abdus-Salaam, J.

The Drug Law Reform Act of 2009 (see L 2009, ch 56, § 1, part AAA, § 9 [hereinafter 2009 DLRA]) provides remedial resentencing to low-level nonviolent felony drug offenders who meet various basic eligibility requirements (see CPL 440.46 [1]). The 2009 DLRA, however, denies resentencing to any offender who is serving a sentence for an “exclusion offense,” which is, among other things, an “offense for which a merit time allowance is not available pursuant to [Correction Law § 803 (1) (d) (ii)]” (CPL 440.46 [5]; CPL 440.46 [5] [a] [ii]). Correction Law § 803 (1) (d) (ii), in turn, makes a merit time allowance unavailable to an offender who is serving a sentence imposed for any of the violent or sexual crimes specifically enumerated in that statute, without regard to the offender’s predicate sentencing status (see Correction Law § 803 [1] [d] [ii]). That statute also prevents any offender serving a sentence “authorized for an A-I felony offense” from receiving a merit time allowance (id.), thereby denying such an allowance to anyone who has been sentenced as a persistent felony offender (see Penal Law §§ 70.00 [2] [a]; [3] [a] [i]; 70.10 [2]).

In interpreting the language of these interlocking statutes, the Departments of the Appellate Division are divided over the proper answer to the following question: does the DLRA resentencing exclusion apply to all offenders who are ineligible to receive a merit time allowance, including those who cannot receive those allowances solely by virtue of their recidivist sentencing adjudications; or, to the contrary, does it apply only to offenders who have been convicted of certain serious crimes that are specifically listed in Correction Law § 803 (1) (d) (ii) and eliminate the possibility of a merit time allowance regardless of an offender’s recidivist sentencing adjudication? We hold that the exclusion applies only to offenders who have been convicted of one or more of the serious crimes that automatically render merit time allowances unavailable under Correction Law § 803 (1) (d) (ii), and that therefore an offender who has no such conviction may be resentenced, notwithstanding his or her adjudication as a persistent felony offender.

I

In 2001, defendant Earl Coleman was convicted, after a jury trial held before the County Court of Sullivan County, of two counts of criminal sale of a controlled substance in the third degree (see Penal Law § 220.39 [1]). Based on defendant’s prior felony convictions for robbery in the third degree (see Penal Law § 160.05) and criminal possession of stolen property in the third degree (see Penal Law § 165.50), the court exercised its discretion to adjudicate defendant a persistent felony offender and sentenced him to an aggregate indeterminate prison term of 15 years to life. The Appellate Division, Third Department affirmed defendant’s conviction on direct appeal, and a Judge of this Court denied him leave to appeal (see People v Coleman, 4 AD3d 677, 677-679 [3d Dept 2004], lv denied 2 NY3d 797 [2004]).

On November 25, 2009, defendant filed a motion in County Court for resentencing pursuant to the 2009 DLRA, as codified in pertinent part in CPL 440.46. Defendant contended that he met all the statutory eligibility requirements and should be resentenced. The People opposed defendant’s resentencing application on the theory that he was serving a sentence on a conviction for an “exclusion offense” which rendered him ineligible for resentencing (CPL 440.46 [5]).

In his motion papers, defendant also asked the court to assign him counsel pursuant to CPL 440.46 (4). The court took no action on defendant’s request for the assignment of counsel, and defendant litigated his resentencing motion without the assistance of counsel. Following motion practice, the court denied defendant’s resentencing motion on the ground that he was ineligible for resentencing under the statute. Defendant appealed from the order denying his resentencing motion, and the Appellate Division reversed and remitted the matter to County Court for further proceedings, finding that County Court had erroneously failed to assign counsel to represent defendant in the resentencing proceedings (see People v Coleman, 83 AD3d 1223, 1223 [3d Dept 2011]).

Upon remittal, defendant, now represented by counsel, submitted additional papers in support of his resentencing application. In those submissions, defendant continued to maintain that he was eligible for resentencing under the 2009 DLRA because he was in the custody of the Department of Corrections and Community Supervision upon his convictions for the class B felony drug offense of criminal sale of a controlled substance in the third degree, and that his indeterminate sentence of 15 years to life included a maximum term of more than three years, as mandated by the statute’s eligibility requirements (see CPL 440.46 [1]). Furthermore, defendant insisted that he was not serving a sentence upon a conviction for, nor did he have a predicate felony conviction for, any statutorily defined “exclusion offense” (CPL 440.46 [5]) that would make him ineligible for resentencing. According to defendant, although he could not receive a merit time allowance as a result of his adjudication as a persistent felony offender, his current conviction was not for an “offense” for which “a merit time allowance [was] not available pursuant to [Correction Law § 803 (1) (d) (ii)]” (CPL 440.46 [5] [a] [ii]). Rather, in defendant’s view, he merely had a sentencing adjudication, as opposed to an offense, that prevented him from receiving a merit time allowance. Defendant further argued that, because substantial justice did not dictate the denial of his resentencing application, he should be resentenced (see CPL 440.46 [3]; see also L 2004, ch 738, § 23).

The People renewed their opposition to defendant’s resentencing application, asserting that he was serving a sentence upon a conviction for an “exclusion offense.” According to the People, because defendant had been sentenced as a persistent felony offender on the instant drug crimes and could not obtain a merit time allowance, his current drug offenses qualified as “exclusion offenses” under the merit-time-related resentencing exclusion. County Court issued an order denying defendant’s resentencing application, finding him ineligible for resentencing on essentially the grounds advanced by the People. Defendant appealed.

A divided panel of the Appellate Division reversed County Court’s order and remitted the matter for further proceedings (see People v Coleman, 110 AD3d 76, 77-79 [3d Dept 2013]). The majority held that, because defendant met the basic eligibility requirements for resentencing under the 2009 DLRA and had no conviction for an “exclusion offense,” he was eligible for resentencing (id. at 77-78 [op by Peters, PJ.]). Observing that the Penal Law defines an “offense” as criminal conduct and separately treats a “sentence” as the punishment for that offense (Penal Law § 10.00 [1]), the majority determined that the 2009 DLRA’s resentencing exclusion based on the unavailability of a merit time allowance applies only to an offender who has a conviction for an “ ‘offense for which a merit time allowance is not available’ ” pursuant to Correction Law § 803 (1) (d) (ii) and not to an offender whose sentencing adjudication alone prevents him or her from obtaining a merit time allowance (id. at 78, quoting CPL 440.46 [5] [a] [ii]).

Indeed, the majority opined, the remedial purpose of the 2009 DLRA compels the conclusion that the latter type of offender is among the low-level nonviolent drug offenders upon whom the statute liberally confers relief, and only the former type of offender is unable to be resentenced (see id. at 77). The majority concluded that, because defendant had no conviction for an offense that automatically precluded his receipt of a merit time allowance, his inability to receive a merit time allowance as a result of his persistent felony offender adjudication did not make him ineligible for resentencing (see id. at 78). In light of its finding of eligibility, the majority remitted the case to allow County Court to determine whether substantial justice dictated the denial of defendant’s resentencing application (see id. at 78-79).

One Justice dissented and voted to affirm County Court’s order (see id. at 79-80 [Stein, J, dissenting]). The dissent asserted that the 2009 DLRA’s definition of an “exclusion offense” “clearly references Correction Law § 803 (1) (d) (ii) without limitation,” including that Correction Law provision’s prohibition against merit time allowances for offenders serving sentences for class A-I felonies (id. at 80). Thus, according to the dissent, the resentencing exclusion applies to all offenders who, like defendant, are persistent felony offenders serving sentences authorized for class A-I felonies, and defendant was ineligible for resentencing (see id. at 79-80). The dissenting Justice of the Appellate Division granted the People leave to appeal (see 21 NY3d 1078 [2013]), and we now affirm.

II

Under the 2009 DLRA, a defendant who meets the basic statutory eligibility requirements is eligible for resentencing unless he or she “is serving a sentence on a conviction for or has a predicate felony conviction for an exclusion offense” (CPL 440.46 [5]; see CPL 440.46 [1]). Here, it is undisputed that defendant meets the basic statutory eligibility requirements. Therefore, defendant’s eligibility for resentencing turns on whether he has been convicted of an “exclusion offense.”

CPL 440.46 (5) (a) defines an “exclusion offense” in pertinent part as:

“a crime for which the person was previously convicted within the preceding ten years, excluding any time during which the offender was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony, which was: (i) a violent felony offense as defined in [Penal Law § 70.02]; or (ii) any other offense for which a merit time allowance is not available pursuant to [Correction Law § 803 (1) (d) (ii)]." (CPL 440.46 [5] [a] [emphasis supplied].)

Thus, a defendant is ineligible for resentencing if, inter alia, he or she has previously been convicted of an “offense” that prevents the defendant from receiving a merit time allowance (CPL 440.46 [5] [a]). Correction Law § 803 (1) (d) (ii), to which the definition of a merit-time-ineligible “exclusion offense” refers, describes the circumstances under which a defendant may not receive a merit time allowance, stating:

“[A] merit time allowance shall not be available to any person serving an indeterminate sentence authorized for an A-I felony offense, other than an A-I felony offense defined in [Penal Law article 220], or any sentence imposed for a violent felony offense as defined in [Penal Law § 70.02], manslaughter in the second degree, vehicular manslaughter in the second degree, vehicular manslaughter in the first degree, criminally negligent homicide, an offense defined in [Penal Law article 130], incest, or an offense defined in [Penal Law article 263], or aggravated harassment of an employee by an inmate.” (Correction Law § 803 [1] [d] [ii] [emphasis supplied].)

Because, under the Penal Law, a defendant will receive a sentence authorized for a class A-I felony if he or she is sentenced as a persistent felony offender (see Penal Law §§ 70.00 [2] [a]; [3] [a] [i]; 70.10 [2]), Correction Law § 803 (1) (d) (ii) necessarily makes a merit time allowance unavailable to a defendant who has been adjudicated a persistent felony offender.

Interpreting the 2009 DLRA’s merit-time-related exclusion in People v Gregory (80 AD3d 624 [2d Dept 2011], lv denied 17 NY3d 806 [2011]), the Appellate Division, Second Department concluded that a conviction for an “exclusion offense” can be a conviction for any offense for which a defendant has been adjudicated a persistent felony offender because such a sentencing adjudication bars the receipt of a merit time allowance under the Correction Law (see Gregory, 80 AD3d at 625). The court essentially reasoned that even though the offense underlying such a conviction is not a class A-I felony or one of the other serious felonies listed in Correction Law § 803 (1) (d) (ii), it becomes a merit-time-ineligible “offense” by virtue of the persistent felony offender adjudication, which links the current offense to the past offenses in a manner that eliminates the possibility of a merit time allowance (see id.). By contrast, here, the Appellate Division, Third Department held that the pertinent resentencing exclusion applies solely to a defendant who has been convicted of a crime that absolutely prevents him or her from obtaining a merit time allowance, regardless of sentencing status, because the resentencing exclusion is based on the nature of the defendant’s offense rather than his or her sentence (see Coleman, 110 AD3d at 77-78). We agree with the Third Department and conclude that defendant here has no conviction for an “exclusion offense” because he has never been convicted of a crime that by its very nature makes it impossible for the offender to receive a merit time allowance under the Correction Law, notwithstanding that defendant happens to be unable to receive such an allowance due to his persistent felony offender adjudication.

As reflected in the divergent views of the Appellate Division Departments, there is some ambiguity in the critical subparagraph of CPL 440.46 (5) (a), which defines an “exclusion offense” as an “offense for which a merit time allowance is not available pursuant to [Correction Law § 803 (1) (d) (ii)]” (CPL 440.46 [5] [a] [ii]). Certainly, that language suggests that a defendant has a conviction for an “exclusion offense” only if the defendant’s “offense,” i.e., his or her criminal conduct (Penal Law § 10.00 [1]), constitutes a crime that necessarily causes a person convicted of it to lose any chance of obtaining a merit time allowance. On the other hand, the same subparagraph’s citation to Correction Law § 803 (1) (d) (ii) leads to the opposite conclusion, for that statute, when read literally, prevents a defendant from obtaining a merit time allowance based on the sentence authorized or imposed for his or her offense rather than the offense itself (see Correction Law § 803 [1] [d] [ii]). That being so, one could reasonably find, as the Second Department did and the People argue, that CPL 440.46 (5) (a) uses the combination of the term “offense” and the Correction Law’s sentence-based merit time restrictions to preclude resentencing for any defendant whose offense actually results in a sentence that bars the receipt of a merit time allowance. However, as the Third Department found and defendant argues, it is just as reasonable to treat the resentencing exclusion as dependent on the nature of the defendant’s “offense” rather than the merit time implications of his or her sentence, such that the exclusion can be triggered only by a conviction for one of the “offenses” listed in Correction Law § 803 (1) (d) (ii) which automatically render a merit time allowance unavailable.

In choosing between these two plausible readings of the statute, we are guided by the precept that the plain terms of the 2009 DLRA, like any statute, should be interpreted in a manner that effectuates the intent of the legislature (see People v Mitchell, 15 NY3d 93, 97 [2010]; People v Robinson, 95 NY2d 179, 182 [2000]). Although there is virtually no official legislative history of the particular resentencing exclusion at issue here, we may look to the broader purpose of the DLRA as a whole for guidance in divining the meaning of the exclusion. Indeed, in our prior decisions interpreting the DLRA resentencing exclusions, we have relied on the legislative intent underlying the remedial framework of the 2009 DLRA, which we summarized in detail (see People v Sosa, 18 NY3d 436, 441-442 [2012]; People v Paulin, 17 NY3d 238, 244 [2011]). As we have made clear, when the legislature enacted the 2009 DLRA, it sought to ameliorate the excessive punishments meted out to low-level, nonviolent drug offenders under the so-called Rockefeller Drug Laws, and therefore the statute is designed to spread relief as widely as possible, within the bounds of reason, to its intended beneficiaries (see Sosa, 18 NY3d at 438, 441-442; Paulin, 17 NY3d at 244; see also Assembly Sponsor’s Mem, Bill Jacket, L 2004, ch 738 at 6 [discussing the similar legislative intent behind the Drug Law Reform Act of 2004]).

We adopt defendant’s interpretation of the relevant resentencing exclusion under the 2009 DLRA because it is more consistent with the statute’s remedial purpose than the People’s interpretation. As interpreted by defendant, the statute would grant the benefits of remedial resentencing to a broad array of nonviolent offenders, including those who could have received a merit time allowance had they not been sentenced as persistent felony offenders, and resentencing would be categorically prohibited for only a small subset of offenders who have been convicted of serious offenses that by operation of law must result in merit-time-ineligible sentences. By contrast, the People’s reading of the statute would deny resentencing to all persistent felony offenders and permit it for just a limited group of offenders who are eligible for a merit time allowance, thereby depriving a substantial number of nonviolent drug offenders of the relief which the legislature envisioned.

In addition to the legislative intent behind the 2009 DLRA, the overall character of the statute’s various exclusions persuades us that the merit-time-related exclusion applies only to offenders who have convictions for the serious and violent crimes listed in Correction Law § 803 (1) (d) (ii). In that regard, CPL 440.46 (5) generally excludes certain offenders from resentencing based on the violent or highly unsavory nature of the crimes they have committed. For example, CPL 440.46 (5) bars resentencing for any offender who has a conviction for “a violent felony offense,” and even the exclusions premised on an offender’s recidivist sentencing status rely on the violent nature of the offender’s criminal conduct, for they preclude resentencing based on the offender’s conviction for a “second violent felony offense” or “persistent violent felony offense” (CPL 440.46 [5] [a], [b] [emphasis supplied]). Given the legislature’s evident conclusion that the violent nature of an offender’s misconduct should render him or her ineligible for resentencing, the legislature likely took the same view in crafting the merit-time-related exclusion. Therefore, it is reasonable to think that the legislature cited Correction Law § 803 (1) (d) (ii) simply to prevent the resentencing of offenders who, by their commission of the mostly violent and sexual offenses mentioned in that statute, have shown themselves undeserving of resentencing. When viewed in context, then, the merit-time-related exclusion follows the offense-based approach of the other exclusions by precluding resentencing only for individuals whose offenses are so serious as to make it impossible for them to receive a merit time allowance under the Correction Law. Accordingly, while a defendant convicted of a class A-I felony or any of the other serious crimes mentioned in Correction Law § 803 (1) (d) (ii) cannot be resentenced under the 2009 DLRA, persistent felony offenders who have no such convictions are eligible for resentencing.

Here, defendant has never been convicted of any of the crimes which eliminate the possibility of a merit time allowance under Correction Law § 803 (1) (d) (ii) within the relevant time period, and he meets all other eligibility criteria under the 2009 DLRA. Thus, we conclude that defendant is eligible for resentencing. In light of that determination, we find it unnecessary to consider defendant’s remaining arguments regarding his eligibility for resentencing.

m

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

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Rivera concur.

Order affirmed.

      . Although quite a few persistent felony offenders are not low-level offenders deserving of resentencing, a resentencing court may account for that fact by denying a persistent felon’s resentencing application on substantial justice grounds where appropriate (see CPL 440.46 [3]; see also L 2004, ch 738, § 23).

      . Notably, although CPL 440.46 (5) (b) effectively prohibits resentencing for offenders who have certain predicate felony offender adjudications, such as an adjudication as a second violent felony offender, it does not include the People’s proposed exclusion for any offender who has been adjudicated a persistent felony offender. This omission further suggests that the legislature did not want to preclude resentencing for offenders who, like defendant, have received severe recidivist sentencing adjudications but have not committed violent, sexual or other unusually serious crimes.


author: Smith, J. Chief Judge Lippman

text:
    [21 NE3d 218, 996 NYS2d 589]
    The People of the State of New York, Respondent, v Samuel McLean, Appellant.
    Argued September 10, 2014;
    decided October 21, 2014

      POINTS OF COUNSEL

      Danielle Neroni Reilly, Albany, for appellant.
    I. Appellant’s right to counsel indelibly attached when his attorney entered the criminal matter under investigation, and had not been terminated when appellant was questioned three years later. (People v West, 81 NY2d 370; People v Harris, 77 NY2d 434; People v Settles, 46 NY2d 154; People v Cunningham, 49 NY2d 203; People v Di Biasi, 7 NY2d 544; People v Grice, 100 NY2d 318; People v Hobson, 39 NY2d 479; People v Schaeffer, 56 NY2d 448; People v Marrero, 51 NY2d 56.) II. Appellant’s trial counsel was ineffective for failing to raise the right to counsel issue prior to appellant’s guilty plea. (Hill v Lockhart, 474 US 52; People v Baldi, 54 NY2d 137; Strickland v Washington, 466 US 668; People v Turner, 5 NY3d 476; People v Caban, 5 NY3d 143; People v Carncross, 14 NY3d 319; People v Hobot, 84 NY2d 1021; People v Kinchen, 60 NY2d 772; People v Sanchez, 15 NY2d 387; People v Benevento, 91 NY2d 708.)

      Robert M. Carney, District Attorney, Schenectady {Gerald A. Dwyer of counsel), for respondent.
    I. Defendant’s right to counsel did not attach when he cooperated with the homicide investigation as part of his plea bargain in an unrelated case. (People v West, 81 NY2d 370; People v Lopez, 16 NY3d 375; People v Booker, 53 AD3d 697; People v Arthur, 22 NY2d 325; People v Failla, 14 NY2d 178; People v Bing, 76 NY2d 331; People v Grice, 100 NY2d 318; People v Robles, 72 NY2d 689; People v Burdo, 91 NY2d 146; People v Hobson, 39 NY2d 479.) II. Any entry by counsel into the homicide was limited and terminated upon the conclusion of defendant’s robbery case. (People v Paulin, 25 NY2d 445; People v Morales, 42 NY2d 129; People v Porter, 9 NY3d 966; Matter of Jimmy D., 15 NY3d 417;
      People v Marrero, 51 NY2d 56; People v Callicutt, 85 AD3d 1326; People v Singer, 44 NY2d 241.) III. The police did not violate defendant’s right to counsel, because they had no knowledge of any entry by an attorney when they took a statement from him in 2006. (People v Arthur, 22 NY2d 325; People v Carranza, 3 NY3d 729; People v Lopez, 16 NY3d 375; People v Bongarzone-Suarrcy, 6 NY3d 787; People v Pinzon, 44 NY2d 458; People v Bertolo, 65 NY2d 111; People v West, 81 NY2d 370; People v Porter, 9 NY3d 966; Matter of Jimmy D., 15 NY3d 417; People v Robles, 72 NY2d 689.) IV If there was a violation of defendant’s right to counsel, it constituted harmless error. (People v Lopez, 16 NY3d 375; People v Crimmins, 36 NY2d 230; People v Goldstein, 6 NY3d 119; People v Coles, 62 NY2d 908.) V The defendant received effective assistance of trial counsel. (People v Benevento, 91 NY2d 708; People v Stultz, 2 NY3d 277; People v Taylor, 1 NY3d 174; People v Lane, 60 NY2d 748; People v Angelakos, 70 NY2d 670; People v Baldi, 54 NY2d 137; People v Caban, 5 NY3d 143; People v Douglas, 38 AD3d 1063; People v Victor, 262 AD2d 872.) VI. Unknowing and unconsented entry by counsel will negatively affect the criminal justice system in New York State.
   OPINION OF THE COURT

Smith, J.

We hold that when police are told by a suspect’s lawyer that the lawyer no longer represents him, they may question the suspect without violating his right to counsel.

I

In 2003, defendant was being prosecuted for robbery. He was represented by Steven Kouray, a part-time deputy public defender. Defendant told Kouray that he had information about an unrelated crime, the murder of a young man named Leonder Goodwin, and asked Kouray to see if that information could be used to get him a more lenient sentence in the robbery case. Kouray approached the District Attorney’s Office and negotiated a plea bargain, under which defendant pleaded guilty to robbery. His sentence was capped at 12 years, with the understanding that he could get less time if he provided helpful information about the Goodwin murder.

After entering his plea, defendant met with Detective John Sims in Kouray’s presence in October of 2003. Defendant told Sims, in substance, that on the night of the murder he had been walking to his niece’s house when he saw two men he recognized, Antoan Baker and “Kendu,” shoot a “kid.” He said that he met Baker and Kendu shortly after the shooting, discussed the incident, and discovered that Kendu was carrying “a gun that used to be mine.” Defendant said he later retrieved the gun and threw it away in a sewer. Defendant identified Baker and Kendu from photo arrays and led the police to the sewer where he said he had dropped the gun, but the gun was not recovered.

Sims evidently found defendant’s story unconvincing. An assistant district attorney reported to County Court that defendant’s information “was not truthful information,” and defendant received a 12-year sentence for the robbery.

In 2006, having been told by Antoan Baker that defendant himself took part in the Goodwin murder, Sims decided that he would like to speak to defendant again. The District Attorney instructed Sims that he must first “check with Mr. Kouray to see whether he continued to represent him or what the nature of his representation was.” Sims and Detective Michael Brown then visited Kouray at his office and asked whether Kouray was still representing defendant. Kouray, according to Sims, answered “No, I’m not,” adding: “I represented Mr. McLean in the robbery . . . [y]ou can go talk to him if you want to.” Kouray acknowledged that Sims or Brown had asked him whether he still represented defendant. Kouray’s recollection of his response was: “He’s been sentenced. The robbery case is over.”

After speaking to Kouray, Sims and Brown went to see defendant in prison. No lawyer was present. Sims and Brown gave defendant Miranda warnings, but did not ask if Kouray still represented him, and defendant volunteered nothing on that subject. Told that Baker was implicating him in the Goodwin homicide, defendant gave a new version of events: He said that he was in a car with Baker, Kendu and a fourth man, intending to commit a robbery. Defendant said that Kendu borrowed defendant’s gun, and that Baker and Kendu got out of the car and opened fire on a group of “kids,” one of whom fell.

Defendant was indicted for murder and other crimes in connection with Goodwin’s death. After unsuccessfully moving to suppress his 2006 statement to Sims and Brown, he pleaded guilty. He argued on direct appeal that the taking of that statement violated his right to counsel, but both the Appellate Division (People v McLean, 59 AD3d 861 [3d Dept 2009]) and this Court (15 NY3d 117 [2010]) found the record insufficient to permit review of the claim.

Defendant then moved in County Court to set aside his conviction pursuant to CPL 440.10, again arguing that the 2006 interview violated his right to counsel. County Court held an evidentiary hearing, at which Sims and Kouray described their 2006 conversation in the language quoted above. The court, apparently regarding the two versions as consistent, gave “full credence” to both. It denied the motion, and the Appellate Division, with one Justice dissenting, affirmed (People v McLean, 109 AD3d 670 [2013]). The dissenting Justice granted defendant leave to appeal to this Court (2013 NY Slip Op 98701[U] [2013]), and we now affirm.

II

Defendant claims that Sims’s and Brown’s questioning of him in 2006 violated the rule that, once an attorney has entered a proceeding, the defendant cannot be questioned in the absence of counsel, unless he affirmatively waives his right to counsel in the attorney’s presence (People v Arthur, 22 NY2d 325, 329 [1968]; People v West, 81 NY2d 370, 373-374 [1993]). The People respond with three arguments, made in the alternative: They say that Kouray never entered the homicide case as defendant’s lawyer; that if he did, he did so only for a limited purpose (negotiating a disposition of the robbery case) and that the representation terminated when that purpose was accomplished; and that, in any event, the police reasonably concluded, after talking to Kouray, that he was no longer defendant’s lawyer. We are persuaded by the third of these arguments, and need not consider the first two.

West is the most relevant precedent. There, the defendant had been represented by counsel in a 1982 lineup, which did not result in any charge against him. In 1985 and 1986, the police, having “made no attempt to determine whether defendant was still represented by his lawyer,” arranged for an informant to speak to the defendant and to tape record the conversations (81 NY2d at 372). We held that the police officers’ failure to make inquiry required suppression of the defendant’s statements, regardless of what the inquiry would have shown: “Should the police have desired to question after defendant’s right had attached, it was their burden to determine whether the attorney-client relationship had terminated” (id. at 380).

The rule of West places a significant burden on the police, but we made clear that the burden is not impossible to sustain. We rejected the suggestion, made by Judge Simons in dissent, that under our holding “the right to counsel is interminable” (id.). It would be a different case, we explained, if the police, when they arranged for the tape recordings, “had any reason to believe that a known attorney-client relationship in the matter had ceased” (id. at 381).

Here, the police did have a reason — an excellent one — to believe that the attorney-client relationship had ceased: the attorney had told them so. By asking the question and getting an unequivocal answer, the police discharged their burden. It is no doubt true that they could have done more. They could have explained to Kouray exactly why they were eager to talk to defendant, or they could have asked defendant himself whether the relationship had reached an end. Perhaps had they done so, they would have received a different answer. But the police are not required to take all imaginable steps to protect a defendant’s right to counsel. Where they follow the rules laid down in our cases — rules that are, in general, highly protective of the attorney-client relationship — they need do no more (see People v Booker, 53 AD3d 697, 699 [3d Dept 2008] [holding that the police were entitled to rely on an attorney’s assurance that the defendant had decided, after consultation with the attorney, to waive his right to counsel]).

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

Chief Judge Lippman

(dissenting). When this case was previously before us, the majority found it necessary to remit for a CPL 440.10 hearing, while I joined Judge Jones’s dissent, opining that defendant had been represented by counsel in the murder case and that his later, uncounseled statements had been obtained in violation of his right to counsel (15 NY3d 117, 125 [2010]).

The more specific issue presented here, as limited by the majority opinion, is whether, given the uncertainty as to defendant’s representational status, the police reasonably concluded that they could question defendant about the murder. It is well settled that where, as here, an ambiguity exists as to whether a defendant is represented by counsel with respect to a particular matter, the burden is on the police to ascertain whether that representation has terminated before questioning the defendant on that matter outside the presence of counsel (see People v West, 81 NY2d 370, 376 [1993]). The police inquiry here fell short of what was necessary to honor defendant’s cherished right to counsel.

In 2003, defendant was represented by Steven Kouray in connection with a robbery charge. Seeking a reduced sentence on the robbery, defendant offered to provide information on the unsolved 2002 murder of Leonder Goodwin. Kouray contacted the District Attorney’s Office on defendant’s behalf and accompanied him to meet with homicide investigator Sims. Defendant was given his Miranda warnings before speaking with the officer. During the interview, Kouray periodically conferred with defendant and advised him not to answer certain questions. They also went over the written statement together before defendant signed it. In addition, Kouray accompanied defendant the following day when he identified two individuals from a photo array and on his ride-along with the police to show them where the murder weapon had been discarded. At the time, Kouray apparently believed that defendant was only an eyewitness to the murder. Defendant’s information was not deemed credible and he was therefore afforded no leniency when he was sentenced on the robbery charge in June 2004.

In December 2006, the police considered defendant a suspect in the Goodwin murder and wanted to interview him again. On instructions from the District Attorney, Investigators Sims and Brown went to see Kouray before questioning the defendant and inquired whether Kouray still represented him. According to Sims, he mentioned the “Goodwin case,” but did not say anything about a murder. Kouray responded that he no longer represented defendant and made reference to the robbery case having been concluded.

The investigators then went to speak with defendant at Green Meadow Correctional Facility; they did not ask defendant whether he was represented by counsel. Defendant waived his Miranda rights and gave a statement incriminating himself in the Goodwin murder.

“New York has long viewed the right to counsel as a cherished and valuable protection that must be guarded with the utmost vigilance . . . [T]he right to counsel is referred to as ‘indelible’ because, once it ‘attaches,’ interrogation is prohibited unless the right is waived in the presence of counsel” (People v Lopez, 16 NY3d 375, 380 [2011] [citations omitted]). The rule precluding officers from questioning a represented defendant derives from the theory that, by obtaining counsel with regard to “a particular matter, defendant [has] manifested his belief that he was unable to deal with the coercive power of the authorities without legal assistance” West, 81 NY2d at 375).

“Once an attorney has appeared on the defendant’s behalf we have refused to allow the police to rely on arguable ambiguities in the attorney-client relationship in order to justify police questioning of the defendant without the attorney being present. We have indicated that if the police are uncertain as to the scope of the attorney’s representation, the defendant should not be questioned” (People v Marrero, 51 NY2d 56, 59 [1980] [citations omitted]).

Where it is likely that defendant is represented by counsel, the police have the obligation to make a reasonable inquiry into the status of that representation (see e.g. Lopez, 16 NY3d at 383).

Here, the limited inquiry made of Kouray did nothing to dispel the ambiguity as to whether defendant was represented by counsel on the homicide. Although the investigator inquired whether Kouray continued to represent defendant, the question was not asked in a way that was designed to elicit an informed response. It was three years earlier when Kouray had appeared with defendant in the context of the homicide investigation. The investigator’s reference to the murder victim’s name, without more, was unlikely to bring to mind Kouray’s involvement in a remote matter in which he believed his client was only tangentially involved. Indeed, despite Kouray’s response that his representation on the robbery had concluded, which should have alerted the officers to the continuing ambiguity with respect to any representation on the homicide, they made no further attempt to clarify the situation. At a minimum, this halfhearted effort to ascertain defendant’s representational status falls well short of scrupulously honoring his right to counsel.

The majority recognizes that the officers likely would have received a different answer if they chose to pursue the issue further, but still finds that this perfunctory inquiry was adequate to satisfy their responsibility (see majority op at 130). This undemanding standard is insufficiently protective of defendant’s right to counsel.

Moreover, the investigators could have dispelled any remaining ambiguity by asking defendant himself whether he was represented by counsel (see People v Lucarano, 61 NY2d 138, 147 [1984]). As we have previously held, once a defendant denies that he is represented, the officers need inquire no further (see Lucarano, 61 NY2d at 148). This does not place any great burden on the police and will, in most cases, result in a clear answer as to defendant’s representational status. “The value of this protection to the individual far exceeds the inconvenience caused by requiring that the police make a simple inquiry of defendant” (Lucarano, 61 NY2d at 147). This is the bare-bones minimum that should be expected of the police.

For the reasons previously stated, I would find that the police could not rely on Kouray’s statement to reach the conclusion that he was no longer defendant’s lawyer and would grant his CPL 440.10 motion.

Judges Graffeo, Read, Pigott and Abdus-Salaam concur; Chief Judge Lippman dissents in an opinion in which Judge Rivera concurs.

Order affirmed.


author: Pigott, J. Chief Judge Lippman

text:
    [21 NE3d 209, 996 NYS2d 580]
    The People of the State of New York, Respondent, v William O’Daniel, Appellant.
    Argued September 16, 2014;
    decided October 21, 2014

      POINTS OF COUNSEL

      Bruce R. Bryan, Syracuse, for appellant.
    I. The court violated William O’Daniel’s right to his choice of counsel when retained counsel became gravely ill and was hospitalized. (People v Arroyave, 49 NY2d 264; United States v Gonzalez-Lopez, 548 US 140; People v Price, 262 NY 410; People v McLaughlin, 291 NY 480; People v Sides, 75 NY2d 822; Powell v Alabama, 287 US 45; Chandler v Fretag, 348 US 3; Wheat v United States, 486 US 153; Caplin & Drysdale, Chartered v United States, 491 US 617; United States v Morrison, 449 US 361.) II. William O’Daniel was otherwise denied his constitutional and statutory rights to counsel. (People v Henriquez, 3 NY3d 210; Penson v Ohio, 488 US 75; People v Cunningham, 49 NY2d 203; Maine v Moulton, 474 US 159; Powell v Alabama, 287 US 45; People v Ross, 67 NY2d 321; Padilla v Kentucky, 559 US 356; Demov, Morris, Levin & Shein v Glantz, 53 NY2d 553; Cuevas v Cuevas, 110 AD2d 873; Moray v Koven & Krause, Esqs., 15 NY3d 384.) III. Alternatively, William O’Daniel was rendered ineffective assistance of counsel. (Strickland v Washington, 466 US 668; People v Turner, 5 NY3d 476; People v Baldi, 54 NY2d 137; People v Benevento, 91 NY2d 708; People v Feliciano, 17 NY3d 14; People v Stultz, 2 NY3d 277; People v Caban, 5 NY3d 143; People v Rogers, 8 AD3d 888; People v Baba-Ali, 179 AD2d 725; People v Hull, 71 AD3d 1336.)

      Andrew J. Wylie, District Attorney, Plattsburgh {Jaime A. Douthat of counsel), for respondent.
    I. Defendant had no absolute statutory or constitutional right to be represented by James Martineau, Esq. at trial, and the record demonstrates that the trial court did not abuse its discretion when it declined to grant yet another adjournment on the eve of trial, 15-plus months after indictment. (People v Wolf, 98 NY2d 105; People v Padro, 75 NY2d 820; People v Carroll, 3 NY2d 686; People v Arroyave, 49 NY2d 264; Morris v Slappy, 461 US 1; People v Griffin, 20 NY3d 626; Matter of Anthony M., 63 NY2d 270; United States v Gonzalez-Lopez, 548 US 140; United States v Brumer,
      528 F3d 157; People v Sides, 75 NY2d 822.) II. The record on appeal does not support either of defendant’s two claims of ineffective assistance of counsel. (People v Baldi, 54 NY2d 137; People v Benevento, 91 NY2d 708; People v Turner, 5 NY3d 476; People v Calderon, 66 AD3d 314, 13 NY3d 858; People v Caban, 5 NY3d 143; People v Rivera, 71 NY2d 705; People v Hobot, 84 NY2d 1021; People v Love, 57 NY2d 998; Gersten v Senkowski, 426 F3d 588; People v Denny, 95 NY2d 921.)
   OPINION OF THE COURT

Pigott, J.

Defendant, facing two counts of rape in the first degree, one count of attempted rape in the first degree, two counts of sexual abuse in the first degree, and two counts of endangering the welfare of a child, retained attorney Martineau to represent him. Martineau was suffering at the time from a debilitating medical condition. On March 1, 2010, Martineau requested an adjournment of defendant’s trial, scheduled to begin the following week in County Court, due to a “flare-up” of his medical condition. The request was granted.

On April 28, 2010, following a hospitalization, Martineau requested another adjournment on medical grounds, but also mentioned that if adjournment were problematic for County Court then he would “advise [his] client and assist him in attempting to obtain substitute counsel in an effort to move this matter along.” The trial was rescheduled to August 16, and finally, after the People sought an adjournment, to October 12, 2010.

In the fall of 2010, Martineau’s health was again poor. At the suggestion of County Court, Martineau identified a “second chair” who would take over if his health worsened: attorney Bruno, who had represented defendant at his arraignment. Martineau took a turn for the worse and defendant’s file was delivered to Bruno’s office on September 30. Bruno met with defendant the following day.

On October 5, 2010, a week before trial was due to start, attorney Bruno represented defendant at a conference in County Court. On behalf of defendant, Bruno moved to adjourn the trial date, mentioning that defendant believed “that the legal system . . . [was] being unfair to him because of Mr. Martineau’s health.” However, Bruno also informed the court that he had “reviewed [defendant’s] entire file” and was “confident” that, should the motion be denied, he would “be prepared and ready to go forward to trial” the following week. Bruno added that he had explained to defendant that County Court had an “obligation to move matters along in a timely fashion.” The People opposed the adjournment motion, and County Court denied it.

On October 12, 2010, the day trial was to begin, Bruno “renew[ed] the motion to adjourn the trial,” on behalf of defendant, stating that defendant “from his perspective, is of the opinion that we need more time to prepare for the trial.” Again, the People opposed the motion, and County Court denied it, noting that Bruno had not indicated “that he is unable to proceed directly” or “that he is in need of extra time with regard to a specific need to prepare in some specific way.” Jury selection began, and the trial followed.

The jury found defendant guilty of all charges. Defendant moved to set aside the verdict under CPL 330.30. Bruno and Martineau filed affidavits stating that the latter had been unable to assist with the trial; that Bruno had first reviewed defendant’s file 12 days before the trial began; and that until a few days before trial defendant expected Martineau to be his trial attorney. Defendant contended that County Court’s denial of the October motions for adjournment violated his right to the retained attorney of his choice. County Court denied the CPL 330.30 motion and in March 2011, with the now-recovered Martineau serving as defendant’s counsel, imposed sentence.

Defendant appealed, raising several challenges, principally that County Court violated his right to choice of counsel. Defendant contends that County Court did so when it denied the October adjournment requests without making any inquiry into defendant’s choice of counsel.

The Appellate Division affirmed County Court’s judgment, observing with respect to defendant’s primary argument that the record contained no

“indication that defendant was unwilling to proceed to trial with Bruno as counsel or, more to the point, that he sought further adjournment of the trial date for the express purpose of retaining another attorney. Rather, defendant . . . instructed Bruno to seek two further adjournments in order to give Bruno more time to prepare. Bruno, however, voiced no concerns as to his readiness to proceed. To the contrary, Bruno indicated . . . that he had reviewed defendant’s ‘entire file,’ met with defendant ‘quite frequently’ and was ‘confident’ that, if the trial proceeded as scheduled, he would be ‘prepared and ready to go forward’ ” (105 AD3d 1144, 1146-1147 [3d Dept 2013]).

A Judge of this Court granted defendant leave to appeal (21 NY3d 1018 [2013]). We now affirm.

A defendant who does not require appointed counsel has a right under both Federal and State Constitutions to choose who will represent him (see United States v Gonzalez-Lopez, 548 US 140, 144 [2006]; People v Arroyave, 49 NY2d 264, 270 [1980]). “The constitutional guarantee to be represented by counsel of one’s own choosing is a fundamental right” (Arroyave, 49 NY2d at 273). Nevertheless, “the right to counsel of choice is qualified, and may cede, under certain circumstances, to concerns of the efficient administration of the criminal justice system” (People v Griffin, 20 NY3d 626, 630 [2013]).

In particular, we have held that a defendant may not use the right to counsel of choice

“as a means to delay judicial proceedings. The efficient administration of the criminal justice system is a critical concern to society as a whole, and unnecessary adjournments for the purpose of permitting a defendant to retain different counsel will disrupt court dockets, interfere with the right of other criminal defendants to a speedy trial, and inconvenience witnesses, jurors and opposing counsel” (Arroyave, 49 NY2d at 271).

In short, appellate courts must recognize “a trial court’s wide latitude in balancing the right to counsel of choice against the needs of fairness and against the demands of its calendar” (Gonzalez-Lopez, 548 US at 152 [citations omitted]).

Significantly, in the present case, defendant does not contend that he expressly requested new counsel on October 5 or October 12, 2010 and that the request was wrongly denied. Rather, defendant’s principal argument is that when he moved, through counsel, for adjournment, County Court was obliged to inquire of him whether he was in fact seeking new counsel. We disagree.

When newly retained defense counsel requests an adjournment of trial and states that defendant believes that the trial would otherwise be unfair, the better practice would be to inquire of counsel and, if necessary, defendant as to whether defendant seeks an adjournment so that he may have the opportunity to retain new counsel or so that his counsel may become better prepared for trial. However, in this case, County Court did not violate any of defendant’s constitutional rights by denying the adjournment motions without that inquiry. On the record before us on direct appeal, when the colloquies of October 5 and October 12 are considered together, no communication was made to County Court from which it would appear that defendant was asking for the opportunity to retain new counsel, or for an adjournment in the hope that Martineau would recover quickly enough to become his trial counsel. Rather, defendant simply sought an adjournment to give Bruno more time to prepare. Under these circumstances, there was no obligation on the part of County Court to inquire as to whether defendant was seeking new counsel.

Defendant’s remaining contentions lack merit.

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

Chief Judge Lippman

(dissenting). There is no dispute that the Sixth Amendment right to counsel entails the right of a criminal defendant to be represented by the attorney he or she has retained (see United States v Gonzalez-Lopez, 548 US 140, 144 [2006]). Nor, after Gonzalez-Lopez, is it debatable that the wrongful refusal of a court to honor a defendant’s prerogative to retain his or her lawyer is per se reversible, error of this description having been deemed structural for its potential to subvert the very framework of a criminal proceeding in ways resistant to harmless error analysis (id. at 150). But here, on facts establishing that defendant was, without compelling justification, forced to proceed to trial with an attorney other than the one he had retained, the majority denies relief.

Mr. Martineau was defendant’s attorney of record and Mr. Bruno, who stood in for him at defendant’s trial, was never substituted for Martineau, or even retained as cocounsel by defendant. All concerned, most notably the trial court, which had itself set in motion the sequence leading to Mr. Bruno’s assumption of the role of trial counsel, knew that Mr. Bruno was not appearing at defendant’s behest but at the request of Mr. Martineau to accommodate the trial court’s concern with meeting “Standards and Goals.”

Even if defendant’s October 5th adjournment request had been ambiguous as to whether it involved an assertion of his right to retain his own lawyer, his subsequent request for a trial postponement, made just one week later, immediately before the commencement of the trial, could have left no doubt that defendant was invoking his right to be represented by an attorney of his choosing. At that time, Bruno, at defendant’s insistence, requested a stay, urging that one was mandatory pursuant to CPLR 321 (c), which, in substance, requires a 30-day stay of proceedings against a party whose attorney becomes disabled to permit that party to retain other counsel. After reading verbatim the relevant portion of the statute, Bruno reiterated that Mr. Martineau, whom all concerned understood to be disabled, “is retained counsel by Mr. O’Daniel.”

Defendant makes a plausible argument that CPLR 321 is applicable in criminal proceedings and that the trial court was therefore obliged, in light of Mr. Martineau’s disability, to stay the proceedings so that he could retain new counsel. But even if CPLR 321 is not applicable in criminal matters, the salient point is that defendant’s reliance upon it should have placed the court on unequivocal notice that defendant was asking for an opportunity to decide for himself who would represent him at trial. To the extent that he was reasonably able to do so through a reluctant interlocutor not of his choosing whom he may very well have elected not to retain, defendant had asserted his fundamental right to select his own lawyer, and the court was bound to honor that right unless there was some compelling reason not to (see People v Griffin, 20 NY3d 626, 630 [2013]; People v Knowles, 88 NY2d 763, 769 [1996]).

The closest the court came to identifying such a reason was when it noted that the case had been pending a long time and that fairness required a trial without further delay. But the lengthy pendency of the prosecution was attributable to adjournments requested by both sides and there was, in the context of a postponement request by defendant, no apparent urgency to try the matter, which was based on relatively recent allegations of misconduct said to have taken place years before. We have, of course, observed that a defendant’s right to choose his attorney “is qualified in the sense that a defendant may not employ such right as a means to delay judicial proceedings” (People v Arroyave, 49 NY2d 264, 271 [1980]), but here it is clear that defendant’s request for a stay expressly to enable the exercise of his right to choose his lawyer, was not a dilatory tactic. The serious deterioration in attorney Martineau’s condition barely two weeks prior to the October 12, 2010 trial date was not a circumstance over which defendant had any control and there is no record support for the suggestion that, in requesting an additional postponement of the trial just days after learning that Mr. Martineau would be unable to appear for him if the trial commenced on October 12th, defendant was engaging in an eleventh hour manipulation to prolong his period of release on bail. The court was not obliged to put off the trial indefinitely, but it was required, given the fundamental, indeed structural right implicated, at least to inquire whether Mr. Martineau could be expected to recover and try the case within a reasonable time and, if that did not seem likely, to afford defendant a reasonable opportunity himself to retain substitute counsel. I do not believe that forcing defendant forthwith to trial with a lawyer he had not retained was a constitutionally permissible alternative.

Judges Gkaffeo, Read, Smith, Rivera and Abdus-Salaam concur; Chief Judge Lippman dissents in an opinion.

Order affirmed.

      . Mr. Bruno’s introduction to the matter was in response to the trial judge’s suggestion to attorney Martineau that, in view of his still tenuous health as of September 2010, he “seek out a second chair.” The suggestion, the court explained, was made “purely [as] a matter of fairness and Standards and Goals.”

      . The relied upon statute stipulates that
      “If an attorney dies, becomes physically or mentally incapcitated, or is removed, suspended or otherwise becomes disabled at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs” (CPLR 321 [c]).

      . Defendant points out that article I, section 6 of the State Constitution provides that “In any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions” (emphasis added). The argument is thus made that if a stay is required in civil actions to allow representation by counsel — which is to say by chosen counsel — when a defendant’s attorney becomes disabled, the same rule must be applicable in criminal proceedings.

      . Defendant it appears had previously been represented by Mr. Bruno in a Family Court matter. It is thus likely that his decision to hire Mr. Martineau in this very serious criminal matter reflected a considered preference for his representational skill set over that of Mr. Bruno.

      . It appears that Martineau recuperated sufficiently to resume his professional responsibilities by December 2010, and, in fact was present at defendant’s sentencing in March 2011 at which time he thanked Bruno for standing in for him “on very short notice.”