author:
Pigott, J.
      Chief Judge Lippman (dissenting).

text:
    [940 NE2d 522, 914 NYS2d 696]
    In the Matter of New York Charter School Association et al., Respondents, v M. Patricia Smith, as Commissioner of Labor, Appellant. In the Matter of Foundation for a Greater Opportunity et al., Respondents, v M. Patricia Smith, as Commissioner of Labor, et al., Appellants.
    Argued September 13, 2010;
    decided October 19, 2010

      POINTS OF COUNSEL

      Andrew M. Cuomo, Attorney General, Albany (Zainab A. Chaudhry, Barbara D. Underwood and Andrew D. Bing of counsel), for appellants.
    Charter school facility projects satisfy the contract prong of the Matter of Erie County Indus. Dev. Agency v Roberts (94 AD2d 532 [1983], affd for reasons stated below 63 NY2d 810 [1984]) prevailing wage law test. (Campaign for Fiscal Equity v State of New York, 100 NY2d 893; Matter of Pyramid Co. of Onondaga v New York State Dept. of Labor, 223 AD2d 285; United Bhd. of Carpenters & Joiners, Local 747 v New York State Dept. of Labor, 291 AD2d 781; Matter of Orens v Novello, 99 NY2d 180; ELRAC, Inc. v Masara, 96 NY2d 847; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; United States v Craft, 535 US 274; Matter of Oswald N., 87 NY2d 98; Matter of Stephens & Rankin v

      Hartnett, 160 AD2d 1201; Matter of Sierra Telcom Servs. v Hartnett, 174 AD2d 279.)

      Couch White, LLP, Albany (James J. Barriere, Michael T. Wallender and Nathan R. Sabourin of counsel), for New York Charter School Association and others, respondents.
    Charter school facility projects do not satisfy the Matter of Erie County Indus. Dev. Agency v Roberts (94 AD2d 532 [1983], affd for reasons stated below 63 NY2d 810 [1984]) prevailing wage test. (Bucci v Village of Port Chester, 22 NY2d 195; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205; Matter of Fineway Supermarkets v State Liq. Auth., 48 NY2d 464; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Brukhman v Giuliani, 94 NY2d 387; Varsity Tr. v Saporita, 71 AD2d 643; Matter of Pinkwater v Joseph, 275 App Div 757, 300 NY 729; Matter of Twin State CCS Corp. v Roberts, 72 NY2d 897; Maybee v State of New York, 4 NY3d 415; United Bhd. of Carpenters & Joiners, Local 747 v New York State Dept. of Labor, 291 AD2d 781.)

      Sonnenschein Nath & Rosenthal LLP, New York City (Richard M. Zuckerman, Peter D. Wolfson and Oscar N. Pinkas of counsel), for Foundation for a Greater Opportunity and others, respondents.
    The prevailing wage laws do not apply to construction, renovation, repair and maintenance of the facilities of charter schools. (Matter of Erie County Indus. Dev. Agency v Roberts, 94 AD2d 532; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Jones v Bill, 10 NY3d 550; Matter of Lantry v State of New York, 6 NY3d 49; Matter of Chesterfield Assoc. v New York State Dept. of Labor, 4 NY3d 597; Consedine v Portville Cent. School Dist., 12 NY3d 286; Davidson Pipe Supply Co. v Wyoming County Indus. Dev. Agency, 85 NY2d 281; Matter of New York Charter Schools Assn., Inc. v DiNapoli, 13 NY3d 120; Matter of Stephens & Rankin v Hartnett, 160 AD2d 1201; Matter of Sierra Telcom Servs. v Hartnett, 174 AD2d 279, 79 NY2d 1039, 507 US 972.)

      Rivera Driscoll & Carey, LLP, Albany (Patrick E. Brown, Justin E. Driscoll and Gilbert L. Carey of counsel), for New York State Building & Construction Trades Council, AFL-CIO, amicus curiae.
    I. Article I, § 17 of the New York State Constitution requires prevailing wages to be paid for construction work on buildings paid for, at least in part, with public funds, and which provide essential public functions. (Brukhman v Giuliani, 94 NY2d 387; Campbell v City of New York, 244 NY 317;

      Long Is. R.R. Co. v Department of Labor of State of N.Y., 138 Misc 612, 256 NY 498; Matter of Erie County Indus. Dev. Agency v Roberts, 94 AD2d 532, 63 NY2d 810; People v Crane, 214 NY 154.) II. The Appellate Division erroneously held that the prevailing wage requirements of article 8 of the Labor Law are not applicable to the construction, reconstruction, renovation, repair and maintenance of charter schools. (Matter of Erie County Indus. Dev. Agency v Roberts, 94 AD2d 532; Matter of National R.R. Passenger Corp. v Hartnett, 169 AD2d 127; Austin v City of New York, 258 NY 113; Long Is. R.R. Co. v Department of Labor, 256 NY 498; Bucci v Village of Port Chester, 22 NY2d 195.)

      James R. Sandner, Latham, and Deborah A. Milham for New York State United Teachers, amicus curiae.
    Charter schools are public entities for purposes of the prevailing wage law under the first prong of the Matter of Erie County Indus. Dev. Agency v Roberts (94 AD2d 532 [1983], affd for reasons stated below 63 NY2d 810 [1984]) test. (Matter of New York Charter Schools Assn., Inc. v DiNapoli, 13 NY3d 120; Matter of Charter Dev. Co., L.L.C. v City of Buffalo, 6 NY3d 578; Matter of New York State United Teachers v Brighter Choice Charter School, 64 AD3d 1130, 13 NY3d 712; Matter of Stephens & Rankin v Hartnett, 160 AD2d 1201; Matter of Cayuga-Onondaga Counties Bd. of Coop. Educ. Servs, v Sweeney, 89 NY2d 395; Bucci v Village of Port Chester, 22 NY2d 195; Matter of Cocchiarella v Joseph, 286 App Div 1076; Matter of Smith v Joseph, 275 App Div 201, 300 NY 516; Matter of Gaston v Taylor, 274 NY 359; Austin v City of New York, 258 NY 113.)

      Gibson, Dunn & Crutcher LLP, New York City (Jennifer H. Rearden, Michelle M. Craven and Netra Sreeprakash of counsel), for New York City Charter School Center, amicus curiae.
    I. Charter schools are not “public agencies.” (Matter of Erie County Indus. Dev. Agency v Roberts, 94 AD2d 532.) II. Contracts for the construction, renovation, repair and maintenance of charter schools are not “public works.” (Matter of Erie County Indus. Dev. Agency v Roberts, 94 AD2d 532; Matter of 60 Mkt. St. Assoc. v Hartnett, 153 AD2d 205, 76 NY2d 993; Matter of National R.R. Passenger Corp. v Hartnett, 169 AD2d 127; Matter of Hart v Holtzman, 215 AD2d 175.)
   OPINION OF THE COURT

Pigott, J.

Our State Constitution provides that laborers, workers and mechanics engaged in “any public work” cannot “be paid less than the rate of wages prevailing in the same trade or occupation in the locality within the state where such public work is to be situated, erected or used” (NY Const, art I, § 17). Labor Law § 220 implements this constitutional requirement, providing in pertinent part:

“Each contract to which the state or a public benefit corporation or a municipal corporation or a commission appointed pursuant to law is a party, and any contract for public work entered into by a third party acting in place of, on behalf of and for the benefit of such public entity pursuant to any lease, permit or other agreement between such third party and the public entity, and which may involve the employment of laborers, workers or mechanics shall contain a stipulation that no laborer, worker or mechanic in the employ of the contractor, subcontractor or other person doing or contracting to do the whole or a part of the work contemplated by the contract shall be permitted or required to work more than eight hours in any one calendar day or more than five days in any one week except in cases of extraordinary emergency including fire, flood or danger to life or property” (Labor Law § 220 [2]).

This litigation was sparked by an opinion letter dated August 31, 2007, wherein the New York State Department of Labor declared that the prevailing wage law mandate of Labor Law § 220 applied to all charter school projects. Two weeks later, on September 11, 2007, the Commissioner notified the Charter Schools Institute and the Commissioner of the State Education Department that it would begin to enforce prevailing wage laws on all charter school projects for which the advertising of bids occurred on or after September 20, 2007.

This determination was in stark contrast to the position taken by the Department in the previous seven years. In an opinion letter dated June 29, 2000, the Department then reasoned that,

“generally speaking, a Charter School is not a public entity. Therefore, Charter Schools cannot, as a class, be deemed to be Departments of Jurisdiction as defined under Labor Law Article 8, Section 220. And, in the absence of a contract with a public entity, the requirement to pay prevailing hourly wages and supplements to workers, laborers, and mechanics employed on a project does not arise.”

In response to this change of opinion, petitioners, two foundations that support the creation of New York charter schools, the New York Charter School Association and three charter schools, commenced the instant proceedings, seeking a judgment declaring that the Commissioner’s new position was taken in excess of her jurisdiction, that the prevailing wage laws do not apply to charter schools and an order enjoining the Commissioner from imposing the prevailing wage laws on them.

Supreme Court denied the petitions holding that the charter agreement between the school and the chartering entity is itself a contract between a public entity and a third party that may involve the employment of laborers, workers or mechanics (Matter of Foundation for a Greater Opportunity v Smith, 20 Misc 3d 453, 464 [Sup Ct, Albany County 2008]). Therefore, the court reasoned, the construction, renovation, repair and maintenance of charter schools facilities constitute projects for public works (id. at 467).

The Appellate Division reversed, granted the petitions and declared that “petitioners are not subject to the prevailing wage laws of Labor Law article 8” (Matter of New York Charter School Assn. v Smith, 61 AD3d 1091, 1095 [3d Dept 2009]). The court found that charter schools are not public entities and, further, that charter agreements are not contracts involving the employment of laborers, workers or mechanics (id. at 1094).

This Court granted leave and we now affirm.

I.

In Matter of Erie County Indus. Dev. Agency v Roberts (94 AD2d 532 [1983], affd for reasons stated below 63 NY2d 810 [1984]), we held that two conditions must be met for the prevailing wage law to apply: “(1) the public agency must be a party to a contract involving the employment of laborers, workmen, or mechanics, and (2) the contract must concern a public works project” (id. at 537).

In order for the prevailing wage laws to apply to charter schools, both prongs of the Erie County test must be met.

The Commissioner argues that the first prong, the contract requirement, is met for three independent reasons. First, taking the position of Supreme Court, the charter agreement governing the operation of a charter school is itself a contract with a public entity that contemplates the employment of workers on facility projects. Second, the charter school should be regarded as a public entity for purposes of the prevailing wage law. Finally, the charter school may be regarded as a third-party intermediary when it enters into a charter school facility contract on behalf of or in place of the chartering entity (usually a school district), pursuant to the charter that created it. Taking each of these arguments in order, we hold that the projects undertaken by charter schools contemplated by this litigation do not meet the contract prong of the Erie County test.

II.

The Commissioner’s first argument is easily disposed of. Labor Law § 220 (2), by its terms, requires that the contract be particular to the “work contemplated” by the parties. In other words, construction or renovation work must be involved (see e.g. Matter of 60 Mkt. St. Assoc. v Hartnett, 153 AD2d 205 [3d Dept 1990] [lease agreement between county and limited partnership providing financing for the construction project]; Matter of National R.R. Passenger Corp. v Hartnett, 169 AD2d 127 [3d Dept 1991] [financing and implementation agreements for the construction]). A charter agreement is not such a document. It is an authorizing agreement under which an agency has determined that an applicant school is competent to be licensed as an education corporation and nothing more (see Education Law § 2852 [2]). Although the charter agreement must contain certain information, such as the location of the proposed charter school (see Education Law § 2851 [2] [j]), it is not a contract for public work involving the hiring of laborers, workers, or mechanics within the meaning of section 220.

III.

As to the Commissioner’s second argument, that charter schools are public entities within the meaning of the prevailing wage law, we disagree. Only four public entities are specifically identified under Labor Law § 220 (2): the State, a public benefit corporation, a municipal corporation or a commission appointed pursuant to law. By its terms, the statute does not expressly apply to education corporations, and that includes charter schools (see Education Law § 216-a [1] [a]; § 2853 [1]).

We recognize that charter schools possess some characteristics similar to a public entity. The Legislature created charter schools as “independent and autonomous public school[s]” and

granted them powers that “constitute the performance of essential public purposes and governmental purposes of this [S]tate” (Education Law § 2853 [1] [c], [d] [emphasis added]). At the same time, however, charter schools are not governed by appointees of the government, but by a self-selecting board of trustees that has “final authority for policy and operational decisions of the school” (Education Law § 2853 [1] [f]). Further, the Legislature made clear that charter schools are exempt from all other state and local laws, rules, regulations or policies governing public schools (see Education Law § 2854 [1] [b]). When the Legislature intended charter schools to be subject to particular laws governing public entities, it has said so (see e.g. Education Law § 2584 [1] [e]). Thus, the status of charter schools has often been difficult to define because they may not be easily identified as either a purely private or public entity (see e.g. Matter of New York Charter Schools Assn., Inc. v DiNapoli, 13 NY3d 120 [2009] [holding that charter schools are not political subdivisions of the State, and the task of auditing charter schools was not incidental to audits of public school districts]). While charter schools are a hybrid of sorts and operate on different models, they are significantly less “public” than the entities in those four categories, and thus, it is clear that these charter schools do not fall within any of the four categories to which the prevailing wage law applies.

IV

Finally, the Commissioner argues that based on a recent amendment to Labor Law § 220, charter schools now fall within its ambit. The argument goes that when the charter schools contract for renovation work, they are contracting in place of, on behalf of and for the benefit of the State or Board of Regents.

In 2007, Labor Law § 220 (2) was amended to close what the bill’s sponsor called a “loophole” (Senate Introducer’s Mem in Support, Bill Jacket, L 2007, ch 678, at 27, 2007 McKinney’s Session Laws of NY, at 2162) in the prevailing wage laws that led to the decision in Matter of Pyramid Co. of Onondaga v New York State Dept. of Labor (223 AD2d 285 [3d Dept 1996]). In Pyramid, a private contractor, acting under a State Department of Transportation (DOT) permit, built a public road on state land to provide access to Interstate Highway 81 (id. at 286). The court found that, although the highway project was a “public works project,” prevailing wage laws did not apply because “DOT was not a party to any contract involving the construction of the project” (id. at 287).

The purpose of this amendment was to enforce prevailing wage laws on jobs, like the one in Pyramid, in which private parties are carrying out public work projects on behalf of public owners. Neither the amendment nor any of the supporting legislative history suggest that the prevailing wage laws would therefore extend to charter schools.

Indeed, the Charter Schools Act itself provides to the contrary: “[n] either the local school district, the charter entity nor the state shall be liable for the debts or financial obligations of a charter school or any person or corporate entity who operates a charter school” (Education Law § 2853 [1] [g]).

A charter school must secure and maintain, on its own, the facilities where it conducts its educational mission—whether by raising private funds to build a school, renting existing facilities, arranging to have a donor provide facilities or other appropriate means. When an education corporation enters into a facilities contract for a charter school, it typically does so on its own behalf, in its own name, and at its own risk. Thus, unlike in Pyramid, where the private entity was clearly acting to benefit the State, a renovation contract by a charter school is only for the benefit of the charter school itself.

Our holding today should not be read to mean that every facilities contract in which a charter school is a party is exempt from the prevailing wage laws. There may be contracts where a charter school is acting in place of, on behalf of and for the benefit of a public entity, where the prevailing wage law may apply. We need not address the application of section 220 to those situations because the facilities contracts contemplated by this litigation involve projects in which the foundation or the charter school owns the building and all construction, renovation, repair and maintenance of the building are the responsibility of the charter school.

V

In sum, we hold that the first prong of the Erie County test, the contract requirement, has not been met in these cases. Thus, the blanket ruling of the Commissioner, based on the arguments set forth, is in error. In light of our holding, we need not consider whether charter school projects are public works under the second prong of the prevailing wage law test.

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

Chief Judge Lippman (dissenting).

Charter schools provide alternative educational opportunities in our communities. With the use of innovative teaching techniques and environments, these schools are designed to improve the quality of our children’s education. However, charter schools are, in essence, public schools performing a vital public service and should be treated as such for purposes of the prevailing wage rate requirement. Accordingly, I respectfully dissent.

The State Constitution provides that the ££[l]abor of human beings is not a commodity nor an article of commerce and shall never be so considered or construed” (NY Const, art I, § 17). To that end, the Constitution states that

££[n]o laborer, worker or mechanic, in the employ of a contractor or sub-contractor engaged in the performance of any public work . . . [shall] be paid less than the rate of wages prevailing in the same trade or occupation in the locality within the state where such public work is to be situated, erected or used” (NY Const, art I, § 17).

These requirements are implemented by article 8 of the Labor Law. Labor Law § 220 sets limitations on the number of hours and the length of the work week for workers on public works contracts, and requires payment of the prevailing wage rate for

££[e]ach contract to which the state or a public benefit corporation or a municipal corporation or a commission appointed pursuant to law is a party, and any contract for public work entered into by a third party acting in place of, on behalf of and for the benefit of such public entity pursuant to any lease, permit or other agreement between such third party and the public entity, and which may involve the employment of laborers, workers or mechanics” (Labor Law § 220 [2], [3] [a]).

This Court has held that Labor Law § 220

“must be construed with the liberality needed to carry out its beneficent purposes . . . [The] statute is an attempt by the State to hold its territorial subdivisions to a standard of social justice in their dealings with laborers, workmen and mechanics. It is to be interpreted with the degree of liberality essential to the attainment of the end in view” (Bucci v Village of Port Chester, 22 NY2d 195, 201 [1968] [internal quotation marks omitted]).

The long-standing test for determining whether the prevailing wage rate is applicable to a given project is found in Matter of Erie County Indus. Dev. Agency v Roberts (94 AD2d 532 [4th Dept 1983], affd 63 NY2d 810 [1984]). The Court developed a two-part test that needed to be satisfied before the prevailing wage rate requirement had to be observed: “(1) the public agency must be a party to a contract involving the employment of laborers, workmen, or mechanics, and (2) the contract must concern a public works project” (Erie County, 94 AD2d at 537). The Appellate Division based its determination that the prevailing wage rate does not apply to charter schools only on the first prong—the contract prong—of the Erie County test.

As noted above, Labor Law § 220 (2) contains a clause allowing a contract entered into by a third party on behalf of a public entity to qualify as a “contract” within the meaning of the statute. That provision was added in 2007, in response to the decision in Matter of Pyramid Co. of Onondaga v New York State Dept. of Labor (223 AD2d 285 [3d Dept 1996]). In Pyramid, the owner of a mall obtained highway work permits from the Department of Transportation (DOT), allowing roads to be constructed on state land, connecting the mall to the nearby interstate highway. The mall owner then contracted with a third party to perform the work. The Court found it clear that the project would qualify as a “public works project,” but found that the contract requirement was not satisfied, in part because DOT was not a party to any contract—the sole contract being between the mall owner and the third party (see Pyramid, 223 AD2d at 287-288). The Court therefore found that the project was not subject to the prevailing wage law.

The legislative history demonstrates that the 2007 amendments were intended to overrule the holding in Pyramid. “The narrow court interpretations of the term ‘agreement’ created an unwarranted loophole that has prevented the application of prevailing wage rules to public work projects that should be subject to those rules, and this bill properly closes that loophole in the law” (Governor’s Approval Mem, Bill Jacket, L 2007, ch 678, at 5, 2007 NY Legis Ann, at 426). In addition, the amendment was intended to enforce the prevailing wage rate “where the involvement of a third party obviates the existence of a direct contractual relationship between the public owner and the contractor performing the work” (Senate Introducer’s Mem in Support, Bill Jacket, L 2007, ch 678, at 27, 2007 NY Legis Ann, at 27, 2007 McKinney’s Session Laws of NY, at 2162). The legislative history does not explicitly mention charter schools.

In order to determine whether charter schools are subject to prevailing wage rates, some background information is helpful. An application to establish a charter school must be submitted to a “charter entity” for approval (see Education Law § 2851 [3]). Charter entities include the board of regents, the board of trustees of SUNY or the board of education of the local school district (or chancellor of the city school district) (see Education Law § 2851 [3]). The charter application must contain a variety of information, including “[information regarding the facilities to be used by the school, including the location of the school, if known” (Education Law § 2851 [2] [j]). The schools can be located in existing public school buildings or other public buildings, private work sites or other suitable locations (see Education Law § 2853 [3] [a]). Upon closure or dissolution, the assets of the charter school are given either to the local school district or to another charter school within the district (Education Law § 2851 [2] [t]).

Once the board of regents approves the charter school, it is incorporated as an education corporation. “A charter school shall be deemed an independent and autonomous public school, except as otherwise provided in this article. The charter entity and the board of regents shall be deemed to be the public agents authorized to supervise and oversee the charter school” (Education Law § 2853 [1] [cl). Moreover, “[t]he powers granted to a charter school under this article constitute the performance of essential public purposes and governmental purposes of this state” (Education Law § 2853 [1] [d]).

Given the role that charter schools play, it is apparent that the present situation is precisely the type of scenario the third party amendment to section 220 was designed to address. It is clear that if a private school were constructing its own facility, the public wage rate would not, and should not, apply. If, on the other hand, the chartering entity had contracted for such work on its own, that work would undoubtedly be subject to the prevailing wage requirement (see e.g. Brian Hoxie’s Painting Co. v Cato-Meridian Cent. School Dist., 76 NY2d 207 [1990]). The charter school, performing an essential public and governmental service pursuant to Education Law § 2853 (1) (d), as authorized by the chartering entity, should be subject to the prevailing wage rate. In this context, the charter school essentially acts as a stand-in for the chartering entity.

The majority opinion rejects the applicability of the third party amendment, in part, on the basis of a statutory debt provision (see majority op at 411). That provision makes clear that only a charter school will be liable for its financial obligations, but has nothing to do with the issue of whether prevailing wages must be paid to workers. Where the money comes from for a construction or renovation project—whether that source be public or private—is not dispositive of the prevailing wage question. The statute makes clear that it pertains to third parties “acting in place of . . . and for the benefit of’ public entities (Labor Law § 220 [2]). Finally, it is simply not the case that a contract for the renovation of a charter school inures solely to the benefit of the charter school itself. Such facilities provide benefits for students and the public similar to those provided by public school facilities. Given the State’s strong public policy in favor of adequate wages on public works projects and that Labor Law § 220 is subject to liberal construction, the Department of Labor’s interpretation of the statute finding charter schools subject to the prevailing wage rate should be upheld.

In addition, the charter agreement itself can be considered the contract to which a public entity is a party, without resort to the third party amendment. The majority finds that the charter is not a contract involving the employment of laborers because the charter determines “nothing more” than that the applicant can be licensed as an education corporation (majority op at 409). However, the language of the statute itself requires only that the contract “may involve the employment of laborers” (Labor Law § 220 [2]). The Erie County test likewise characterizes the contract as “involving” such employment (94 AD2d at 537). Since the contract itself does not need to be strictly a construction contract, the charter, having the chartering entity as a party and contemplating that construction or renovation work will be necessary in order to obtain adequate facilities, would satisfy this contract requirement.

Although making charter schools adhere to prevailing wage requirements may impose additional costs in providing their valuable public service, the State’s public policy and statutory framework, as well as the essentially public nature of charter schools make clear that the prevailing wage rate applies to the construction and renovation of charter schools. Accordingly, I would reverse the order of the Appellate Division.

Judges Graffeo, Read, Smith and Jones concur with Judge Pigott; Chief Judge Lippman dissents and votes to reverse in a separate opinion in which Judge Cipabick concurs.

Order affirmed, with costs.

       Charter schools are treated as public schools for certain purposes, but not for others. For example, charter schools are required to “meet the same health and safety, civil rights, and student assessment requirements applicable to other public schools, except as otherwise specifically provided in this article” (Education Law § 2854 [1] [b]). However, they are generally exempt from other state and local laws pertaining to public and private schools (see Education Law § 2854 [1] [b]).


source: Caselaw Access Project

author: Pigott, J. Chief Judge Lippman (dissenting).

license: Public Domain

text:
    [938 NE2d 970, 912 NYS2d 537]
    In the Matter of Jimmy D., a Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency, Respondent.
    Argued September 15, 2010;
    decided October 26, 2010

      POINTS OF COUNSEL

      Legal Aid Society, New York City (Raymond E. Rogers, Steven Banks and Tamara A. Steckler of counsel), for appellant.
    Under state law and the State and Federal Constitutions, the prosecution failed to prove beyond a reasonable doubt that the 13-year-old appellant’s statement was voluntary and not a false confession where (1) the questioning took place late at night, (2) the police detective asked appellant’s mother to leave the room so the detective could interrogate him alone, (3) the detective promised to obtain “help” for appellant if he confessed, and (4) appellant’s brief written statement lacked any indicia of reliability because it contained no facts other than those supplied to him by the detective in relaying the complainant’s allegations. (People v Anderson, 42 NY2d 35; People v Valerius, 31 NY2d 51; People v Huntley, 15 NY2d 72; People v Mitchell, 2 NY3d 272; Matter of Omar L., 192 Misc 2d 519; Matter of Lance BB, 14 Misc 3d 359; People v Hall, 125 AD2d 698; Matter of Michelet P., 70 AD2d 68; People v Ward, 95 AD2d 351; Matter of Benjamin L., 92 NY2d 660.)

      Michael A. Cardozo, Corporation Counsel, New York City (Susan B. Eisner, Stephen J. McGrath and Norman Corenthal of counsel), for respondent.
    Appellant’s motion to suppress the inculpatory statement he gave to Detective Figueroa was properly denied. Appellant and his mother knowingly and intelligently waived appellant’s Miranda rights, and the mother freely consented to allow Detective Figueroa to speak with appellant alone while the mother waited nearby. (People v Bebeck, 258 AD2d 660, 93 NY2d 897; People v Williams, 62 NY2d 285; People v Vasquez, 66 NY2d 968; People v Sepulveda, 52 AD3d 539; People v Rogers, 34 AD3d 504; Matter of Chaka B., 33 AD3d 440; Matter of Javier L., 272 AD2d 474; Matter of James W., 130 AD2d 753; People v Ward, 95 AD2d 351; Miranda v Arizona, 384 US 436.)
   OPINION OF THE COURT

Pigott, J.

Appellant, Jimmy D., was 13 years old when his nine-year-old cousin reported to family members that Jimmy had sexually abused her. Jimmy’s mother took both children to a hospital, where the police were called. A detective from the special victims’ squad arrived and arranged for Jimmy, his mother, his cousin, and the cousin’s mother to be taken to a child advocacy center.

After initially being placed in separate rooms, Jimmy and his mother sat together in a closed-door waiting room while the detective interviewed the cousin and her mother. The girl described an incident of sexual abuse that had occurred earlier that evening. She added that she was afraid of Jimmy because he had sexually abused her one afternoon four months earlier.

The detective took Jimmy and his mother to a juvenile interview room, where she explained the allegations against him and read Miranda warnings to Jimmy in English and to his mother in Spanish, according to their preferences. The version of the Miranda warnings that the detective read to Jimmy, designed for use with juveniles, explains each of the rights in simple language. Each time one of the rights was stated, Jimmy responded, without hesitation, that he understood the right; the same was true of his mother. Jimmy’s mother also reread the warnings herself and both Jimmy and his mother signed the Miranda waivers.

The detective asked Jimmy’s mother, in Spanish, for permission to speak with him alone, adding that children sometimes do not feel comfortable talking to a detective in front of a parent. The mother did not respond immediately, but after Jimmy consented to talk with the detective alone, the mother agreed, and left the juvenile interview room.

The detective told Jimmy that he should tell her exactly what had happened, adding that, if he did so, he would get “some help,” if he needed it. As the detective later recalled the conversation, she indicated that he would be able to get psychiatric or counseling help, if necessary. Faced with his cousin’s accusations regarding the earlier incident, Jimmy admitted to sexual contact with his cousin. The detective told Jimmy to write what he had done in his own words, gave him pen and paper, and left the room. In a handwritten statement, which he composed while alone in the interview room, Jimmy admitted to a series of sexual contacts with his nine-year-old cousin.

Jimmy and his mother were reunited, and he read his confession to her. At this point, according to Jimmy’s mother, she understood her son to say that the detective had told him that she would help him only if he wrote a statement admitting to sexual conduct. The mother and the detective exchanged words, with the detective insisting that she had simply told Jimmy to write down in his own words exactly what he had done. Jimmy was then arrested.

A juvenile delinquency petition was filed in Family Court, supported by a sworn statement of Jimmy’s cousin. When the presentment agency gave notice that it intended to introduce his confession, Jimmy moved to suppress the statement. Following a suppression hearing, Family Court denied the motion.

Following a fact-finding hearing, Family Court ruled that Jimmy had committed acts that, if committed by an adult, would have constituted the crimes of first-degree criminal sexual act, third-degree criminal sexual act, sexual misconduct, second-degree unlawful imprisonment, second-degree course of sexual conduct against a child, attempted first-degree sexual abuse, and attempted third-degree sexual abuse. Family Court adjudicated Jimmy a juvenile delinquent and placed him on probation for 18 months, conditioned on cooperation with sex offender counseling.

At the Appellate Division, Jimmy argued, among other things, that the presentment agency had not met its burden of proving the voluntariness of his confession. The Appellate Division modified Family Court’s order by dismissing the sexual misconduct and unlawful imprisonment counts, but otherwise affirmed, rejecting Jimmy’s voluntariness challenge (63 AD3d 737 [2009]). We granted Jimmy leave to appeal (13 NY3d 843 [2009]) and now affirm.

When a police officer takes a child under the age of 16 into custody for juvenile delinquency, the officer must “immediately notify the parent or other person legally responsible for the child’s care, or if such legally responsible person is unavailable the person with whom the child resides, that the child has been taken into custody” (Family Ct Act § 305.2 [3]). The child must be advised of his Miranda rights and, if the parent or other person in loco parentis who was notified of the arrest (henceforward “parent”) is present, that person must be similarly apprised (Family Ct Act § 305.2 [7]).

Recognizing that special care must be taken to protect the rights of minors in the criminal justice system, New York courts carefully scrutinize confessions by youthful suspects who are separated from their parents while being interviewed. In People v Bevilacqua, we held that the “continuous, unusual, and deliberate isolation” of an 18 year old from potential avenues of assistance from his family or other supportive adults required suppression, as a denial of the right to counsel (45 NY2d 508, 514-515 [1978]; see also People v Kern, 149 AD2d 187, 217 [2d Dept 1989]; People v Ventiquattro, 138 AD2d 925, 929 [4th Dept 1988]). Similarly, in People v Townsend, we ruled that a confession must be suppressed if it was obtained from a child under the age of 18 after the police ensured by means of deception and trickery that the child’s parents would not take steps to retain a lawyer (33 NY2d 37, 41-42 [1973]).

In light of these statutory and common-law principles, we reiterate that, when a parent is present at the location in which a child under the age of 16 is being held in custody, the parent must not be denied “an opportunity to attend [the] custodial interrogation” (People v Mitchell, 2 NY3d 272, 275 n 11 [2004] [emphasis added]). In practical terms, this means that the parent of the child has the right to attend the child’s interrogation by a police officer, and should not be discouraged, directly or indirectly, from doing so. The better practice for the interviewing officer or detective is to inform the parent that the parent may attend the interview if he or she wishes. Of course, a parent may choose not to be present when a child is being interviewed, but the police should always ensure that the parent is aware of the right of access to his or her child during questioning. If a parent is asked to leave, the parent should be made aware that he or she is not required to leave.

The advantages of having a parent present during custodial interrogations are many. A parent may help a child understand the Miranda warnings, so that the child can consciously and voluntarily choose whether to waive or to exercise his constitutional rights to remain silent, to have an attorney present at his questioning, and to have an attorney provided for him without charge if he is indigent. As we have noted, juveniles charged with delinquency may not fully “understand the scope of their rights and how to protect their own interests. They may not appreciate the ramifications of their decisions or realize all the implications of the importance of counsel” (Mitchell, 2 NY3d at 275). If the child chooses to waive his rights under Miranda v Arizona (384 US 436 [1966]), the parent who is present at questioning is able to monitor the interrogation lest the police engage in coercive tactics. In short, “[t]he emotional and intellectual immaturity of a juvenile creates an obvious need for the advice of a guardian . . . at an interrogation from which charges of juvenile delinquency may ensue” (Matter of Michelet P., 70 AD2d 68, 71 [2d Dept 1979]).

However, it does not follow as a matter of law that a child’s confession obtained in the absence of a parent is not voluntary. Neither the Family Court Act nor our precedent interpreting that statute give a child under 16 years the absolute right to the presence of a parent during interrogation. In fact, the Family Court Act expressly contemplates the possibility that the police may be unable to contact the parent of a child in custody, despite “every reasonable effort” (Family Ct Act § 305.2 [4]), or that a notified parent may be unable or unwilling to be present at the location of custody (see Family Ct Act § 305.2 [7]). Moreover, whether a confession was, beyond a reasonable doubt, voluntary is a mixed question of law and fact (see e.g. People v Scott, 86 NY2d 864, 865 [1995]), and is to be determined from the “totality of circumstances” (People v Tankleff, 84 NY2d 992, 994 [1994], quoting People v Williams, 62 NY2d 285, 289 [1984]).

Because voluntariness is a mixed question of law and fact, our review is limited to deciding whether the Appellate Division’s finding is supported by evidence in the record. In the present case, Jimmy and his mother were not so isolated from one another at the child advocacy center as to affect the likelihood that his confession was voluntary. Jimmy’s mother accompanied him to the center, and mother and son had an opportunity to talk there, when they were waiting together alone in the closed-door waiting room. Jimmy’s mother was present during the waiver of his Miranda rights. Both Jimmy and his mother agreed to his being questioned outside his mother’s presence, and there is no evidence that Jimmy asked for her during the questioning; nor were Jimmy’s whereabouts concealed from his mother.

The detective took care to read a version of the Miranda warnings that explains the rights in simple language. Both Jimmy and his mother responded unhesitatingly when asked whether they understood each right waived. Although Jimmy was doubtless tired, there is no evidence that he asked for food or water and was denied it. Finally, nothing in Jimmy’s handwritten confession suggests that it does not express his own recollections.

The detective’s promise of “help” did not give rise to any “substantial risk that [Jimmy] might falsely incriminate himself’ (Family Ct Act § 344.2 [2] [b] [i]). There is no evidence in the record that the detective’s promise would have deceived Jimmy into thinking that if he confessed he would escape unprosecuted or unpunished (cf. People v Holland, 48 NY2d 861, 863 [1979]). Rather, there is evidence in the record that the detective told Jimmy that if he was truthful and told everything that had happened, he would receive psychiatric help or counseling if needed. Jimmy was not offered an incentive to lie; there is no attraction in making a false confession and receiving psychiatric assistance relating to a crime one did not commit.

The dissent, while acknowledging the validity of Jimmy’s initial waiver (dissenting op at 427), relies on a novel theory: that the validity of the waiver was vitiated by police misconduct that occurred after the waiver (id. at 428 [“any representation in the course of the interrogation tending to impair the interrogee’s understanding of the consequences of his or her continuing waiver must be deemed to invalidate the waiver and render the product of consequent interrogation inadmissible”]). The dissent does not suggest that Jimmy was tricked or coerced into his initial waiver, or that Jimmy later invoked his rights and failed to waive them a second time. Nor does the dissent adopt the theory actually advanced by Jimmy—that misconduct following the valid waiver rendered his subsequent confession involuntary. Rather, the dissent suggests that, due to misconduct by the police, Jimmy stopped understanding his rights and thereby unwaived them.

The two cases that the dissent cites in support of this theory, Moran v Burbine (475 US 412 [1986]) and United States v Anderson (929 F2d 96 [2d Cir 1991]), actually contradict it. In Moran, the defendant argued that police misconduct following his valid Miranda waiver—lying to an attorney who sought to intervene in defendant’s interrogation—retroactively vitiated that waiver. But the Supreme Court found that idea “untenable as a matter of both logic and precedent” (475 US at 422). Similarly, in Anderson, the District Court found that postwaiver “trickery” retroactively undermined & Miranda waiver, making it impossible to find that defendant voluntarily waived his rights, but the Second Circuit held otherwise: “Though the ‘trickery’ premise is correct, the district court’s conclusion respecting the ‘impossibility of a waiver’ is not” (929 F2d at 98). The Second Circuit then appropriately addressed whether the postwaiver “trickery” had rendered defendant’s confession involuntary (id. at 100-102). In accordance with Moran and Anderson, we hold that, since Jimmy’s Miranda rights were validly waived and never reinvoked, the issue is voluntariness, not waiver.

We conclude that there is evidence in the record supporting the findings of the lower courts that the presentment agency met its burden of proving the voluntariness of Jimmy’s inculpatory statement beyond a reasonable doubt. This mixed question of law and fact is therefore beyond our further review.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Lippman (dissenting).

The majority has set forth with commendable clarity what the law of this State requires when a parent of a child under the age of 16 is available for and wishes to be present at the child’s interrogation by a police officer: “the parent . . . has the right to attend the child’s interrogation . . . and should not be discouraged, directly or indirectly, from doing so” (majority op at 422). And, with equally commendable clarity, the majority has explained why such attendance is advantageous to the child and ultimately to the sound administration of justice: the parent can help the child understand the Miranda warnings and monitor any subsequent interrogation to deter and, if necessary, bear witness to any official overreaching. As the majority notes, we have previously recognized that juveniles “lack an adult’s knowledge of the probable cause of their acts or omissions and are least likely to understand the scope of their rights and how to protect their own interests” (People v Mitchell, 2 NY3d 272, 275 [2004]); and, in view of the acknowledged “emotional and intellectual immaturity of [juveniles],” the majority now appropriately reiterates that there is an “obvious need for the advice of a guardian ... at an interrogation from which charges of juvenile delinquency may ensue” (majority op at 422, quoting Matter of Michelet P., 70 AD2d 68, 71 [2d Dept 1979] [internal quotation marks omitted]).

It is not disputed that respondent Jimmy D.’s mother was available and wished to be present during her son’s interrogation, and it is clear that her exclusion was not in accord with what the Family Court Act requires in such circumstances. The majority, however, declines to suppress Jimmy’s confession on this ground. While I agree that the exclusion of a parent from the interrogation room should not invariably dictate the suppression of a subsequently obtained juvenile confession, I cannot agree that the exclusion of the parent in this case, when viewed in the context of the ensuing interrogation, should be deemed benign. Indeed, the tactic employed by the detective once the mother had been excluded cannot be viewed except as having vitiated the waiver of rights essential to the admissibility of Jimmy’s confession.

Although presented practically as an afterthought by the majority, it would appear crucial to the decision of the respondent’s suppression motion that, after the mother complied with the detective’s request to leave the room, the detective, upon encountering resistance from Jimmy, represented to him that he could be helped if he confessed. The detective testified: “I told him he needs to tell me exactly what happened and this way if he needed some help, we would try to get him some help.” When pressed as to what sort of “help” she had been referring to, the detective elaborated, “I explained to him that he would have to come to court and the lawyer that he would get [t]here would try to get him help.” When asked whether she meant that Jimmy could get help from a lawyer if he made a statement, the detective replied “[t]he help I was telling him was if the lawyer can help him out, get him some help. In other words, if he needed to see someone, you know, whether it was a psychologist or counseling with regards to what he had done.” Upon being requested to clarify whether she had suggested to Jimmy that if he confessed, he would get help from a lawyer in court, the detective said, “I told him to write what he did in his way, in his own words and I says maybe they can get you some help.” When she was again requested to state whether she had indicated that the availability of a lawyer depended upon Jimmy giving a confession, she answered “I’m not sure if I said lawyer. I could have said it. I’m not sure.” Shortly after these representations were made, Jimmy made an admission. He was then told that “he would have to write everything that he said he did on paper because it wasn’t right what he did.” Jimmy complied, delivering a written statement to the detective at 12:35 a.m. The 13 year old had by then not eaten, or been offered food, in over seven hours and had been without sleep since the early morning of the previous day.

The threshold issue in judging the admissibility of Jimmy’s custodial confession in this post-Miranda era is not, as it would have been before Miranda, whether under the totality of the circumstances the confession itself was voluntary in the sense of being uncoerced, or whether it was elicited by means of representations raising a substantial risk of false incrimination in contravention of Family Court Act § 344.2 (2) (b) (i), but whether the confession was obtained in pursuance of a valid waiver of rights. Since Miranda v Arizona (384 US 436 [1966]), of course, the admissibility of a custodial confession depends upon the government’s proof of an antecedent waiver of the right against self-incrimination and, relatedly, the right to the assistance of counsel during interrogation: “If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel” (id. at 475). Consistent with, indeed practically entailed by, the Court’s requirement of proof of a knowing and intelligent waiver was its dictum that “any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege” (id. at 476).

Since Miranda, the nature of the judicial inquiry it requires, focusing on the validity of the precedent waiver rather than on the voluntariness of the ensuing confession, has been repeatedly reaffirmed. In Moran v Burbine (475 US 412, 421 [1986]), for example, the Court observed

“Echoing the standard first articulated in Johnson v. Zerbst, 304 U. S. 458, 464 (1938), Miranda holds that ‘[t]he defendant may waive effectuation’ of the rights conveyed in the warnings ‘provided the waiver is made voluntarily, knowingly and intelligently.’ 384 U. S., at 444, 475. The inquiry has two distinct dimensions. Edwards v. Arizona, supra, at 482; Brewer v. Williams, 430 U. S. 387, 404 (1977). First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the ‘totality of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Fare v. Michael C., 442 U. S. 707, 725 (1979). See also North Carolina v. Butler, 441 U. S. 369, 374-375 (1979).”

Although the Miranda warnings initially given to Jimmy and his mother appear to have been adequate and the immediately ensuing waiver of rights valid, those circumstances are not on this record conclusive of the validity of the waiver when Jimmy’s confession was given. It is basic, and evident from the mandated warnings themselves, that a person subject to custodial interrogation may, his or her initial waiver notwithstanding, at any juncture in the questioning reassert his or her right to remain silent and to consult an attorney. It follows that any representation in the course of the interrogation tending to impair the interogee’s understanding of the consequences of his or her continuing waiver must be deemed to invalidate the waiver and render the product of consequent interrogation inadmissible, unless the representations are conclusively shown not to have clouded the interogee’s comprehension of the basic risks entailed by continued participation in the interrogation (see Moran v Burbine, supra; see e.g. United States v Anderson, 929 F2d 96 [2d Cir 1991]).

Although the majority finds this theory “novel,” it is as old as Miranda itself, which plainly conditions the validity of an interogee’s continuing waiver of rights upon the absence of “any evidence that the accused was threatened, tricked, or cajoled into [the] waiver” (384 US at 476 [emphasis supplied]). The majority’s evident insistence that subsequent to the initial waiver, the question of whether the waiver remains valid is supplanted by an inquiry into the voluntariness of any ensuing confession, is simply not compatible with the basic waiver theory upon which Miranda rests. As Professor Berger has observed:

“[W]aiver is [and] should remain an issue distinct from the question of compulsion under the fifth amendment. Miranda created a system of warnings and waiver to protect against the inherently coercive environment of custodial interrogation. Its predecessor, the voluntariness test, had proven to be ineffective in regulating police interrogation practices. The Miranda Court clearly did not intend to replace the voluntariness test under the fourteenth amendment with the compulsion standard of the fifth amendment, without any substantive change in the analysis. This would only have made voluntariness and compulsion the flip sides of the same coin. Voluntary confessions would be those obtained without compulsion, while compelled statements would be considered involuntary. Instead, Miranda rejected this rather meaningless exchange of constitutional language in favor of a substantive reworking of admissibility criteria . . . Under Miranda, waivers must be voluntary, intelligent and knowing, not just obtained in an atmosphere free of compulsion” (Berger, Compromise and Continuity: Miranda Waivers, Confession Admissibility, and the Retention of Interrogation Protections, 49 U Pitt L Rev 1007, 1053 [1988]).

Contrary to the majority’s view, the continuing validity of a Miranda waiver is not a nonissue after the waiver has first been made, even in the absence of the waiver’s retraction. Logically, every response made during a custodial interrogation is a reaffirmation of the original waiver (see Dix, Promises, Confessions, and Wayne LaFave’s Bright Line Rule Analysis, 1993 U 111 L Rev 207, 255-256 [“(A) suspect has the right after initially waiving counsel to change his mind and invoke the right. A suspect’s failure to do this during interrogation is a continuing reaffirmation of his earlier waiver. In a very real sense, a promise made after an initial waiver of counsel may effectively influence a suspect to ‘reaffirm’ that waiver by failing to demand the right to consult with an attorney before matters go further”]). If the terms of the waiver have by the time of the reaffirmation been misleadingly altered, as they were here, the waiver is no longer valid; the burden cannot be upon the misled interrogee to reassert rights the nature and dimensions of which have, since the initial waiver, been inaccurately or confusingly portrayed. Of course, nothing in either Moran or Anderson can be understood to impose such a manifestly unfair burden.

Here, it would appear clear, even from the detective’s less than transparent account of what she told Jimmy, that when she spoke to Jimmy alone, she made representations significantly at odds with those upon which his waiver had, in his mother’s presence, been permissibly based. The detective made repeated offers of “help,” but at the same time advised Jimmy that he would have to provide a written statement before “help” could be afforded. The child had been warned only minutes before that “[a]nything you say can and will be used against you in a Court of Law. That means what you say or write can be used to prove [w]hat you may have done.” Now, however, he was told something dramatically different—that an admission could be helpful to him and, indeed, that help was contingent upon an admission. When pressed as to what she meant by “help,” the detective indicated psychological counseling or legal assistance. But, neither was contingent upon a confession. Jimmy was absolutely entitled to an attorney; it was a gross distortion, again fundamentally at odds with the rights just recited, to intimate that legal assistance in any way depended upon the giving of a statement; and it is obvious, except perhaps to a child, that a confession to criminal wrongdoing is not a condition of access to psychological counseling.

Although courts, despite Miranda's apparently categorical injunction against threats, trickery and cajolement (384 US at 476), have held that misrepresentations not bearing directly upon the basis of the required waiver will not necessarily invalidate it, “there is an absolute prohibition upon any trickery which misleads the suspect as to the existence or dimensions of any of the applicable rights or as to whether the waiver really is a waiver of those rights” (2 LaFave et al., Criminal Procedure § 6.9 [c], at 827-828 [3d ed] [collected cases omitted]).

Perhaps an experienced adult would not have been misled by representations such as those made by the detective to Jimmy— but we deal here with a child, and to all appearances a very unsophisticated one with no prior involvement with the juvenile justice system, improperly deprived of parental support and guidance at a time when it would have been crucial to the protection of his interests. Upon the undisputed facts of this record, I see no way of concluding that the presentment agency met its “heavy” burden to demonstrate that Jimmy had “knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel” (Miranda, 384 US at 475) when he made his confession. The facts before us simply do not permit the properly dispositive legal conclusion that this child, at the time he confessed, had the “requisite level of comprehension” “both [of] the nature of the right being abandoned and the consequences of the decision to abandon it” (Moran, 475 US at 421).

While the truth or falsity of Jimmy’s confession appears unascertainable, it does seem clear that the circumstances attending its exaction—i.e., a tired and hungry child isolated with an experienced interrogator in the middle of the night and offered illusory inducements to confess to specifically described allegations of wrongdoing—are precisely the sort that do produce false confessions, particularly in the young teen age group. If an “incentive to lie” (majority op at 424) were necessary to explain a 13 year old’s decision to confess falsely, there certainly was one in this case; the child believed, as he had been encouraged to in his mother’s absence, that making the sought confession was the only way he could extricate himself from the extraordinarily aversive situation in which he found himself. Children do resort to falsehood to alleviate discomfort and satisfy the expectations of those in authority, and, in so doing, often neglect to consider the serious and lasting consequences of their election. There are developmental reasons for this behavior which we ignore at the peril of the truth-seeking process.

So long as juveniles cannot be altogether preserved from rigors of police interrogation, it would behoove us not to minimize the now well-documented potential for false confessions when suggestible and often impulsive and impaired children are ushered into the police interview room. Recognition of the distinct hazard presented by that inherently enormously coercive scenario renders it imperative not only that we clarify, as we have, what the Family Court Act requires with respect to parental involvement at juvenile interrogations, but that, where children are concerned, we scrupulously adhere to Miranda’s requirement that there be a demonstrably valid waiver of rights, unaffected by threats, trickery, or cajolement, to support the admission of a custodial confession.

Judges Graffeo, Read and Smith concur with Judge Pigott; Chief Judge Lippman dissents in a separate opinion in which Judges Ciparick and Jones concur.

Order affirmed, without costs.

       It is true, as the dissent points out, that her testimony also contains confusing references to a “lawyer,” but there is no basis in the record for inferring that Jimmy was led to believe that he would have to confess if he wanted to be represented by counsel; he had just been told, in unequivocal terms, that he could have a lawyer without charge if he wanted one.

      . In Moran, for example, the misrepresentations alleged to vitiate the Miranda waiver were not made to the defendant and, thus, could not have affected his decision to relinquish his rights (475 US at 422).

      . It is true that in United States v Anderson (supra), the court, although acknowledging that postwaiver trickery could affect the continuing validity of a waiver—the proposition for which the case is above cited—declined to adopt a per se rule that any trickery would vitiate a waiver, as had the District Court. However, upon de novo review, the Second Circuit went on to hold, as a matter of law, that the misrepresentations there at issue were materially misleading and thus that Anderson’s waiver had been fatally compromised, rendering his subsequently obtained statements involuntary. Although the holding is couched in terms of voluntariness, it is clear that the focus of the court’s analysis was upon whether the defendant’s waiver of rights had been voluntary under the standard enunciated in Miranda and Moran (see 929 F2d at 100-101).

      . It is noted, however, that even highly experienced adults can be materially misled subsequent to an initial valid waiver. In Anderson, for example, the defendant had, by the time of the interrogation there at issue, been arrested 12 times and entered 11 guilty pleas (929 F2d at 99).

      . Indeed, research has shown a pronounced willingness to confess falsely among young teenage boys and one study has documented false confession rates of 78% in boys respondent’s age (see Saul M. Kassin and Gisli H. Gudjonsson, The Psychology of Confessions: A Review of the Literature & Issues, 5 Psychol Sci in Pub Int 33, 52-53 [Nov. 2004]).


author: Jones, J.

text:
    [938 NE2d 984, 912 NYS2d 551]
    In the Matter of Empire State Towing and Recovery Association, Inc., Appellant. Commissioner of Labor, Respondent.
    Argued September 15, 2010;
    decided October 26, 2010

      POINTS OF COUNSEL

      Peter B. O’Connell, Albany, for appellant.
    I. The decisions of the Appellate Division and Unemployment Insurance Appeal Board are not supported by substantial evidence. (Matter of Hertz Corp. [Commissioner of Labor], 2 NY3d 733; Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725; Matter of Werner [CBA Indus.—Hudacs], 210 AD2d 526; Matter of Monti Moving & Stor. [Sweeney], 241 AD2d 734; Matter of Cromer [Transworld Sys.—Sweeney], 248 AD2d 773; Matter of Securities Research Servs. [Roberts], 122 AD2d 504; Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734; Matter of Bedin [Trussardi (USA)—Commissioner of Labor], 257 AD2d 809; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176.) II. The Unemployment Insurance Appeal Board and Appellate Division failed to base their decisions upon an examination of the record as a whole. (Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of Rodriguez [2020 Video Voice Data, Ltd.—Commissioner of Labor], 58 AD3d 929; Matter of Cortland-Clinton, Inc. v New York State Dept. of Health, 59 AD2d 228; Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725; Matter of Spinnell [Commissioner of Labor], 300 AD2d 770; Matter of Cromer [Transworld Sys.—Sweeney], 248 AD2d 773; Matter of International Student Exch. [Commissioner of Labor], 302 AD2d 834.) III. It was improper for the Unemployment Insurance Appeal Board to treat services that Peter O’Connell provided to appellant as an association manager differently than other services that he provided to appellant under identical circumstances. IV It was improper for the Unemployment Insurance Appeal Board to consider whether Peter O’Connell’s services were an “integral part” of appellant’s business. (Matter of Bedin [Trussardi (USA)—Commissioner of

      Labor], 257 AD2d 809; Matter of Barone [Commissioner of Labor], 257 AD2d 950; Matter of Williams [Commissioner of Labor], 268 AD2d 621; Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725; Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734; Matter of 12 Cornelia St. [Ross], 56 NY2d 895.)

      Andrew M. Cuomo, Attorney General, New York City (Richard O. Jackson, Barbara D. Underwood and Richard Bearing of counsel), for respondent.
    Substantial evidence supports the Unemployment Insurance Appeal Board’s factual finding that Peter O’Connell was Empire State Towing and Recovery Association, Inc.’s employee. (Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734; Matter of Villa Maria Inst. of Music [Ross], 54 NY2d 691; Matter of Eastern Suffolk School of Music [Roberts], 91 AD2d 1123; Matter of Salamanca Nursing Home [Roberts], 68 NY2d 901; Matter of Reich [Posner & Gaier—Commissioner of Labor], 55 AD3d 1077; Matter of TriReme Realty Corp. [Corsi], 269 App Div 872, 296 NY 566; Matter of Imperial Inv. Corp. [Catherwood], 30 AD2d 750; Matter of Bybdal [Johnson Constr. Co.—Corsi], 274 App Div 1084; Matter of Regan & Regan [Commissioner of Labor], 256 AD2d 829; Matter of Van Woes & Assoc. Realty [Ross], 76 AD2d 1016.)
   OPINION OF THE COURT

Jones, J.

The issue before this Court is whether there is substantial evidence in the record to support the Unemployment Insurance Appeal Board’s finding of an employer-employee relationship. We hold there is not.

Peter O’Connell maintains a law practice in Albany that focuses on government relations and lobbying. Appellant Empire State Towing and Recovery Association, Inc., an association that represents members in the tow truck operating business, retained O’Connell for legal and lobbying services. In 1997, Empire State Towing and O’Connell entered into a written agreement in which O’Connell would perform administrative services as the executive director, in addition to his legal and lobbying services.

Pursuant to the written agreement, O’Connell maintained a telephone and computer database in the name of the association, mailed dues and membership materials, mailed periodic financial statements to board members, and coordinated publication of a journal. He also attended board meetings, maintained a bank account, and had check writing authority up to $500. For greater monetary amounts, O’Connell had to submit documentation accounting for the required amount and obtain the signature of Empire State Towing’s treasurer. O’Connell performed all these services from his own law office, was free to set his own schedule, and was not working exclusively for the association.

In 2004, a part-time assistant was hired to help O’Connell in his duties as executive director. It is conceded that the part-time assistant was an employee of the association. In 2006, O’Connell relinquished his duties as executive director.

The Commissioner of Labor determined through an audit of Empire State Towing, for the period of January 1, 2004 through December 31, 2005, that O’Connell was its employee and assessed $617.53 in additional unemployment insurance payments. Empire State Towing disputed the finding on the ground that O’Connell was an independent contractor, and a hearing was held before an administrative law judge. The administrative law judge sustained the determination of the Commissioner on the basis that the evidence showed an exercise of control by Empire State Towing over O’Connell’s duties as executive director.

An appeal was taken to the Unemployment Insurance Appeal Board which affirmed the determination of the administrative law judge. The Appeal Board found that there was “credible evidence” that the employer “exercised or reserved the right to exercise sufficient supervision, direction, and/or control to establish” an employer-employee relationship. Consequently, Empire State Towing filed a notice of appeal with the Appellate Division.

The Appellate Division affirmed the prior determination on the grounds that the Appeal Board’s decision was based on substantial evidence, specifically referring to the fact that the association (1) furnished office space and equipment, (2) reimbursed O’Connell’s expenses, and (3) required O’Connell to submit reports and attend meetings (62 AD3d 1129 [3d Dept 2009]). This Court granted appellant Empire State Towing’s motion for leave to appeal (13 NY3d 712 [2009]), and we now reverse.

Empire State Towing argues that O’Connell is an independent contractor and that the earlier determinations have incorrectly focused on his administrative duties and the end results rather than on the exercise of control over the means used to achieve those results. The Commissioner contends that there is substantial evidence of control in the record to support the earlier findings, such as the association’s required approval for checks over $500. Furthermore, the Commissioner asks this Court to apply the “overall control” test because O’Connell enjoyed autonomy and discretion as executive director of the association.

It is well-settled that

“[w]hether an employment relationship exists within the meaning of the unemployment insurance law is a question of fact, no one factor is determinative and the determination of the appeal board, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary decision” (Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736 [1983]; Matter of King's Brass Ceremonial [Commissioner of Labor], 75 AD3d 712 [3d Dept 2010]; Matter of Rosen [Vidicom, Inc.—Commissioner of Labor], 73 AD3d 1352 [3d Dept 2010]).

An employer-employee relationship exists when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results (see Matter of 12 Cornelia St. [Ross], 56 NY2d 895, 897 [1982]). However, “control over the means is the more important factor to be considered” (Matter of Ted Is Back Corp. [Roberts], 64 NY2d 725, 726 [1984]; see Matter of Bedin [Trussardi (USA)—Commissioner of Labor], 257 AD2d 809 [3d Dept 1999]). “Incidental control over the results produced—without further evidence of control over the means employed to achieve the results—will not constitute substantial evidence of an employer-employee relationship” (Matter of Hertz Corp. [Commissioner of Labor], 2 NY3d 733, 735 [2004]; Matter of Ted Is Back Corp. [Roberts], 64 NY2d at 726; Matter of Cromer [Transworld Sys.—Sweeney], 248 AD2d 773 [3d Dept 1998]).

In some cases, this Court has applied the “overall control” test where “substantial evidence of control over important aspects of the services performed other than results or means” is sufficient to establish an employer-employee relationship (Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d at 736). This test is applicable to services where the details of the work performed are difficult to control because of considerations such as professional and ethical responsibilities (see Matter of Salamanca Nursing Home [Roberts], 68 NY2d 901 [1986]; Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734 [1983]). This analysis has been typically applied in the context of professionals such as physicians and attorneys (see Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d at 736; Matter of Salamanca Nursing Home [Roberts], 68 NY2d 901 [1986]; Matter of Parisi [Commissioner of Labor], 54 AD3d 456 [3d Dept 2008]; Matter of Rosen [Vidicom, Inc.— Commissioner of Labor], 73 AD3d 1352 [2010]).

Here, under either test, substantial evidence does not exist in the record to support the Unemployment Insurance Appeal Board’s determination that O’Connell was an employee of the association. Although the record before us extensively details O’Connell’s duties, it lacks substantial evidence of any control exercised by the association over O’Connell.

The requirement that the association’s treasurer had to approve and co-sign on checks for over $500 does not support a finding that O’Connell was an employee. The check approval authority was a form of incidental control over results that is “a necessarily wise business decision” (Matter of Ted Is Back Corp., 64 NY2d at 726). Moreover, the fact that O’Connell had to submit periodic reports and attend meetings “is a condition just as readily required of an independent contractor as of an employee and not conclusive as to either” (Mutter of Hertz Corp., 2 NY3d at 735).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to the Appellate Division, with directions that the matter be remanded to the Unemployment Insurance Appeal Board for further proceedings in accordance with this opinion.

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

Order reversed, etc.


author: Read, J.

text:
    [939 NE2d 1202, 914 NYS2d 72]
    In the Matter of Jazmin A., a Person Alleged to be a Juvenile Delinquent, Respondent. Presentment Agency, Appellant.
    Argued October 12, 2010;
    decided November 17, 2010

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Norman Corenthal and Kristin M. Helmers of counsel), for appellant.
    I. The remand order was properly issued. (Green v Montgomery, 95 NY2d 693; Matter of Quinton A., 49 NY2d 328; Matter of Carmelo E., 57 NY2d 431; Matter of Robert J., 2 NY3d 339; Matter of Jose R., 83 NY2d 388; Matter of Benjamin L., 92 NY2d 660; People v Letterlough, 86 NY2d 259; Matter of Markim Q., 7 NY3d 405; Matter of Alpheaus M., 168 AD2d 208; Matter of Amanda RR., 230 AD2d 451.) II. The mootness doctrine does not preclude consideration of the issue of the propriety of the remand. (Matter of Hearst Corp. v Clyne, 50 NY2d 707; Matter of Chenier v Richard W., 82 NY2d 830; Mental Hygiene Legal Servs. v Ford, 92 NY2d 500.)

      Legal Aid Society, New York City (Claire V. Merkine, Steven Banks and Tamara A. Steckler of counsel), for respondent.
    The Family Court acted without statutory authority and in violation of due process when it remanded to detention a juvenile probationer without a violation of probation petition having been filed. (Matter of Albano v Kirby, 36 NY2d 526; State of New York v Patricia II., 6 NY3d 160; People v Finnegan, 85 NY2d 53; Pajak v Pajak, 56 NY2d 394; People v Assi, 63 AD3d 19, 14 NY3d 335; Eastern Paralyzed Veterans Assn. v Metropolitan Transp. Auth., 79 AD2d 516; Matter of Waldeck v New York City Employees' Retirement Sys., 81 NY2d 804; Matter of Flynn v State Ethics Commn., Dept. of State, State of N.Y., 208 AD2d 91, 87 NY2d 199; Matter of Markim Q., 7 NY3d 405; Matter of Silver v Silver, 36 NY2d 324.)
   OPINION OF THE COURT

Read, J.

On February 18, 2008, 14-year-old Jazmín A. returned home after a four-day absence, whereupon she promptly announced that she was leaving again. When her mother objected and attempted to block the door, Jazmín grabbed a kitchen knife with a six-inch blade, and threatened that “[n]o one is going to touch me.” As Jazmín tried to fight her way past her mother, her stepfather intervened. Before he succeeded in wresting the knife away from her, though, Jazmín grazed his shoulder with the blade; she also bit her stepfather’s arm and chest, causing him to bleed. He was taken by ambulance to a hospital, where his bite wounds were treated.

On February 25, 2008, the presentment agency filed a petition asserting that Jazmin’s acts, described above as recounted in her stepfather’s supporting affidavit, would, if committed by an adult, constitute various assault and weapons and menacing offenses. On February 29, 2008, Family Court adjudicated Jazmín delinquent upon her admission that she committed an act constituting unlawful possession of a weapon by a person under the age of 16, in violation of Penal Law § 265.05.

During the dispositional hearing on March 26, 2008, the judge asked Jazmin’s mother whether she was willing for Jazmín to remain in her home. The mother answered that she was so long as Jazmín attended school and did not “stay or sleep out of the house.”

The following colloquy ensued between the judge and Jazmín:

“the court: Jazmín, do you understand that if I put you on probation, I’m going to keep a very tight [rein] on this case?
“[jazmín]: I understand that, ma’am.
“the court: I’m going to have you come in to court for reports. If I get a report that you are not cooperating with the probation, that you’re not keeping your curfew, that you are staying out overnight, or that you’re not going to school, you’re going to quickly find yourself in detention and on your way to a placement [upstate]. Do you understand that?
“[jazmín]: Yes, I understand that, ma’am.”

Family Court placed Jazmín in the Bronx Juvenile Accountability Court (JAC) program for a 12-month period of probation. While in existence, JAC matched troubled youths with an array of supportive services, such as counseling, tutoring and drug treatment, as an alternative to residential placement. Unlike regular probation, JAC participants appeared regularly in Family Court for the judge to check on their progress. The order and conditions of probation imposed by Family Court required that Jazmín report to and cooperate with her probation officer; obey the lawful commands of her parents; observe curfew; attend school regularly; submit to drug and alcohol testing; and comply with the recommendations of a mental health assessment.

Jazmín arrived late to Family Court on April 16, 2008 for her first monitoring hearing. The Department of Probation’s report was not favorable. Of the 13 school days since her probation began, Jazmín missed eight and was late twice. According to her mother, Jazmín “stay[ed] out all night without permission and [might] come home once or twice a week.” At the conclusion of the hearing, Family Court remanded Jazmín to the custody of the Commissioner of Juvenile Justice because she “was choosing not to comply with the conditions of her probation.” Jazmín’s law guardian objected to the remand on the ground that the Department of Probation had not filed a violation of probation (VOP) petition. The judge scheduled another hearing to be held nine days later, on April 25, 2008, “for probation to take whatever further steps they believe [d] [to be] appropriate.” Jazmín appealed.

On May 19, 2009, the Appellate Division unanimously reversed and vacated Family Court’s April 16, 2008 order of detention. The court held that “[hjaving issued an order of disposition placing [Jazmin] on probation, the Family Court lacked authority to remand her to detention in the absence of a violation of probation petition” (62 AD3d 526, 527 [1st Dept 2009]). By the time the Appellate Division handed down its decision, the Department of Probation had long since pursued a VOP petition, resulting in a new order of disposition on June 6, 2008, which placed Jazmin on 12 months of probation under the auspices of the Administration for Children’s Services’ Juvenile Justice Initiative, another community-based alternative to residential placement. The court noted that it nonetheless decided Jazmin’s appeal because, although moot, the issue presented was “substantial and novel” and “likely to recur and evade review” (id.)

The Appellate Division subsequently granted the presentment agency leave to appeal to us, certifying the following question: “Was the order of this Court, which reversed the order of the Family Court, properly made?” After sua sponte examining our subject matter jurisdiction, we invoke the exception to the mootness doctrine for the same reasons cited by the Appellate Division and retain jurisdiction. We now answer the certified question in the affirmative.

Article 3 of the Family Court Act spells out specific junctures in a delinquency proceeding when Family Court may remand a juvenile to detention—i.e., after a prepetition hearing is held in anticipation of the filing of a juvenile delinquency petition (Family Ct Act § 307.4 [4] [c]); at the “initial appearance” after a petition has been filed and “any adjournments thereof’ (Family Ct Act § 320.1; see also Family Ct Act § 320.4 [2] [specifying what the court shall determine at the initial appearance]); after a probable cause hearing is held (Family Ct Act § 325.3 [3]); and after a VOP petition is filed (Family Ct Act § 360.3 [2] [b]). Because the Legislature did not similarly empower Family Court to order detention of a juvenile probationer before the filing of a VOP petition, we are unwilling to imply such authority in the absence of a statutory peg, as the presentment agency asks us to do. As Jazmin points out, “it is odd to suggest . . . that the Legislature intended to permit detention before a [VOP] petition has been filed when it enacted an express provision [i.e., section 360.3 (2) (b)] providing [for] a juvenile [to] be detained after a [VOP] petition is filed.” Indeed, if Family Court possesses inherent authority to order detention at any time during the period of probation, section 360.3 (2) (b) would seem to be unnecessary. Moreover, while the presentment agency correctly points out that Family Court retains jurisdiction over a juvenile probationer until probation ends (see Family Ct Act § 360.1; Matter of Markim Q., 7 NY3d 405 [2006]), continuing jurisdiction does not vest Family Court with the power to take actions not authorized by article 3.

The presentment agency also seems to suggest that Jazmín consented to detention, pointing to Family Court’s statement at the dispositional hearing that a poor probation report meant that she would “quickly find [her]self in detention,” followed by Jazmin’s acknowledgment that she understood. This brief exchange does not amount to a waiver of a VOP petition, assuming that such a waiver could be obtained from a minor in Jazmin’s situation.

Finally, the presentment agency argues that the monitoring hearing in this case was an “adjournment” of the “initial appearance” within the meaning of Family Court Act § 320.1,

which states that “[w]hen used in this article [3,] ‘initial appearance’ means the proceeding on the date the respondent first appears before the court after a petition has been filed and any adjournments thereof, for the purposes specified in section 320.4.” As the Appellate Division correctly noted, however, a court appearance for checking up on compliance with probation cannot be an “adjournment” of the “initial appearance” on the underlying juvenile delinquency petition once a dispositional order has been entered.

Accordingly, the order of the Appellate Division should be affirmed, without costs, and the certified question answered in the affirmative.

Judges Ciparick, Graffeo, Smith, Pigott and Jones concur; Chief Judge Lippman taking no part.

Order affirmed, etc.

       The Appellate Division explicitly declined to decide
      “the hypothetical questions of whether [a properly made] motion under Family Court Act § 355.1 to stay, modify or terminate an order of probation based on change of circumstances would provide an [alternative] means of initiating proceedings to revoke probation, and whether detention would be authorized pending resolution of such a motion” (62 AD3d at 527), presumably because Family Court did not purport to act pursuant to this provision and the issue was not properly presented for appellate review.
      Section 355.1 (1) (b) specifies that
      “[u]pon a showing of a substantial change of circumstances, the court may on its own motion or on motion of the respondent or his parent or person responsible for his care: . . . stay execution of, set aside, modify, terminate or vacate any order issued in the course of a proceeding under this article” (emphasis added).
      Section 355.1 (3) further provides that “[i]f the court issues a new order of disposition under this section the date such order expires shall not be later than the expiration date of the original order.” Finally, a motion for relief under section 355.1 must be pursued in accordance with the procedures specified in section 355.2.