author: Read, J. R.S. Smith, J. (dissenting).

text:
    [821 NE2d 537, 788 NYS2d 299]
    In the Matter of Michael M., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued October 20, 2004;
    decided November 23, 2004

      POINTS OF COUNSEL

      Legal Aid Society, Juvenile Rights Division, New York City (Susan Clement and Monica Drinane of counsel), for appellant.
    The Family Court Act’s unique jurisdictional requirements were not satisfied where the removal petition failed to contain non-hearsay allegations establishing every element of the crimes charged and no nonhearsay supporting deposition was filed with the petition at the initial appearance in Family Court or at any future point in the delinquency proceeding. (Matter of Jahron S., 79 NY2d 632; Matter of Rodney J., 83 NY2d 503; People v Finnegan, 85 NY2d 53, 516 US 919; Matter of Robert J., 2 NY3d 339; Matter of David T., 75 NY2d 927; People v Alejandro, 70 NY2d 133; Matter of Detrece H., 78 NY2d 107; Matter of Angel A., 92 NY2d 430; People v Swamp, 84 NY2d 725; Matter of Neftali D., 85 NY2d 631.)

      Michael A. Cardozo, Corporation Counsel, New York City (Sharyn Rootenberg and Larry A. Sonnenshein of counsel), for respondent.
    Pursuant to the express terms of Family Court Act § 311.1 (7), when a juvenile offender proceeding is commenced in Criminal Court and removed to Family Court, the order of removal, which consists of the Criminal Court pleadings and proceedings, is legally sufficient to constitute a valid petition notwithstanding that it does not contain nonhearsay allegations establishing each element of the crimes charged. Therefore, the failure to supplement the removal petition with a supporting deposition containing nonhearsay allegations is nonetheless jurisdictionally sound and, in any event, may not be challenged for the first time on appeal. (Matter of Detrece H., 78 NY2d 107; Matter of Desmond J., 246 AD2d 111, 93 NY2d 949; Matter of David M., 229 AD2d 345; Matter of Edward B., 80 NY2d 458; Matter of Neftali D., 85 NY2d 631; Matter of City School Dist. v New York State Pub. Empl. Relations Bd., 144 AD2d 35; Matter of Allstate Ins. Co. v Libow, 106 AD2d 110, 65 NY2d 807; American Lodge Assn. v East N.Y. Sav. Bank, 100 AD2d 281; Sanders v Winship, 57 NY2d 391; Matter of Vega v Bell, 47 NY2d 543.)
   OPINION OF THE COURT

Read, J.

This appeal calls upon us to decide whether the jurisdictional requirements for filing in Family Court are met when an order of removal and the accompanying pleadings and proceedings contain only hearsay allegations; and, if they are not met, whether this deficiency is waivable. For the reasons that follow, we conclude that such a removal is jurisdictionally defective. Further, the defect is nonwaivable and thus is reviewable for the first time upon appeal.

I.

This case originated with the filing of a felony complaint on April 3, 2002 in Criminal Court, Bronx County. The complaint charged appellant Michael M., who was 14 years old at the time, with participating in a group assault on a 13-year-old boy to steal his bicycle. In the resulting melee, the 13 year old suffered a broken leg. The felony complaint was signed by a police officer and was based on his interview of the victim. In other words, the complaint contained only hearsay.

After Michael M. was arraigned, he was interviewed by the New York City Criminal Justice Agency, which recommended juvenile offender treatment. Accordingly, at a calendar call on May 15, 2002, the prosecutor asked Criminal Court to remove the case to Family Court “pursuant to CPL 180.75 [and] 210.43,” and handed up a form removal order for the judge to sign. The prosecutor cited three factors to support her oral application: that Michael M. was not the “sole participant” in the attack; that removal would assure that the victim, who was of “tender age,” would not be “subjected to needless trauma”; and that removal would not negatively affect the criminal justice system (see CPL 180.75 [6] [b]). The judge asked if there were “[a]ny objections,” and Michael M.’s attorney replied “No.” The judge did not place on the record the reasons causing him to exercise his discretion to order removal (cf. CPL 180.75 [6] [a], [c]; see also Matter of Raymond G., 93 NY2d 531, 538 [1999]). He immediately signed the order, which directed Michael M. to appear in Family Court a week later, on May 22, 2002.

At his initial Family Court appearance, Michael M. was served with the felony complaint, the removal order and the transcript of the Criminal Court proceeding. On November 14, 2002, Family Court found that Michael M. had committed acts which, if committed by an adult, would constitute the felonies of attempted robbery in the first degree, attempted robbery in the second degree, assault in the second degree (two counts), attempted grand larceny in the fourth degree and attempted criminal possession of stolen property in the fifth degree. By order of disposition dated November 22, 2002, Family Court placed him on probation for 24 months.

Michael M. challenged Family Court’s jurisdiction in this matter for the first time on appeal, arguing that the removal order and its accompanying papers were facially insufficient because they contained only hearsay allegations. Citing to Matter of Desmond J. (93 NY2d 949 [1999]), the Appellate Division rejected Michael M.’s claim, stating that “[o]n this record, jurisdiction was sufficiently established” (309 AD2d 631 [1st Dept 2003]). We now reverse.

II.

A juvenile delinquency proceeding “is originated [in Family Court] by the filing of a petition” (Family Ct Act § 310.1 [1]). Family Court Act § 311.1 specifies the delinquency petition’s contents. As relevant on this appeal, Family Court Act § 311.1 (7) provides that a removal order from a criminal court to Family Court and all associated “pleadings and proceedings” (other than those not yet transcribed) “shall be deemed to be a petition filed pursuant to subdivision one of section 310.1 containing all of the allegations required by this section [i.e., Family Ct Act § 311.1] notwithstanding that such allegations may not be set forth in the manner therein prescribed” (emphasis added). Here, the presentment agency takes the position that by virtue of section 311.1 (7)’s express terms, the removal order and whatever other pleadings and proceedings may accompany it in an individual case are deemed to constitute a facially sufficient petition. We disagree.

The need for nonhearsay allegations stems not from Family Court Act § 311.1 (“this section”), but instead from subdivision (3) of a different section—Family Court Act § 311.2. The latter provision mandates that the factual allegations of a petition and/or any supporting depositions must contain “non-hearsay allegations [to] establish, if true, every element of each crime charged and the respondent’s commission thereof’ (Family Ct Act § 311.2 [3]; see also Family Ct Act § 315.1 [1] [a]; [2]). Section 311.1 (7) exempts a removal order from compliance with the requirements of section 311.1; it does not excuse compliance with section 311.2 and its nonhearsay requirements. Accordingly, we conclude that removals must be supported by nonhearsay factual allegations to establish every element of the crimes charged and the juvenile’s commission of these crimes.

Other provisions in the Family Court Act support our reading of Family Court Act § 311.1 (7). In 1978, the Legislature amended, former Family Court Act § 731 to add the removal provision as subdivision (3) (see L 1978, ch 481, § 48), which provided in relevant part as follows:

“When an order of removal ... is filed with [Family Court] such order and the pleadings and proceedings transferred with it shall be and shall be deemed to be a petition filed pursuant to subdivision one of this section containing all of the allegations therein required notwithstanding that such allegations may not be set forth in the manner therein prescribed” (former Family Ct Act § 731 [3] [emphasis added]).

Subdivision (1) of former Family Court Act § 731, in turn, required the filing of a petition to originate a juvenile delinquency proceeding (comparable to Family Ct Act § 310.1 [1]). In addition, subdivision (1) required the petition to allege that the juvenile had committed an act that, if done by an adult, would constitute a crime and to specify the act as well as the time and place of its commission (former Family Ct Act § 731 [1] [a], restated in Family Ct Act § 311.1 [2], [3] [d], [e], [f], [g]); that the juvenile was under 16 years old at the time of the alleged act’s commission (former Family Ct Act § 731 [1] [b], restated in Family Ct Act § 311.1 [3] [c]); and that the juvenile required supervision, treatment or confinement (former Family Ct Act §731 [1] [c], restated in Family Ct Act § 311.1 [3] [j]).

Thus, the removal provision enacted by the Legislature in 1978 as former Family Court Act § 731 (3) did not, by its express terms, exempt a removal from compliance with any of the former Act’s requirements except those in section 731 (1), which are broadly comparable to Family Court Act § 311.l’s requirements from which a removal pursuant to section 311.1 (7) is exempt. Underscoring this point, the Legislature expressly stated that other provisions of the former Family Court Act were inapplicable to a removal order. For example, the Legislature amended former Family Court Act § 733, which provided for various individuals to originate a juvenile delinquency proceeding, to specify that its provisions did “not apply to a proceeding originated by the filing of an order of removal” (L 1978, ch 481, § 49; see also ch 481, § 50 [providing that former Family Ct Act § 734, relating to procedures for initiation of juvenile delinquency proceedings by individuals, did not apply in the removal context; ch 481, § 51 [providing that former Family Ct Act § 734-a, relating to various approvals for the filing of a petition, did not apply in the removal context]).

Similarly, former Family Court Act § 739, which governed release or detention after the filing of a petition and prior to an order of disposition, was amended by adding language as subdivision (c) to require that “[w]here the petition consists of [a removal order], the petition shall be deemed to be based upon a determination that probable cause exists to believe the respondent is a juvenile delinquent and the respondent shall not be entitled to any further inquiry on the subject of whether probable cause exists” (L 1978, ch 481, § 52). This language was carried over into Family Court Act § 325.1 (5) when the Legislature recodified the Family Court Act’s juvenile delinquency provisions in 1982 (L 1982, ch 920, § 1). Interestingly, however, the Legislature provided an exception from section 325.1 (5) for a removal pursuant to CPL 725.05 (3)/CPL 180.75 (4)—the bases for Michael M.’s removal—provided that the juvenile was not afforded a probable-cause hearing for a reason other than waiver. The Legislature also enacted Family Court Act § 311.2 in 1982, but did not similarly provide any express exception from its nonhearsay requirements for a removal pursuant to CPL 725.05 (3)/CPL 180.75 (4).

Nor does our decision in Matter of Desmond J., which also involved a felony complaint based solely on hearsay allegations, contradict our reading of Family Court Act § 311.1 (7). At the initial appearance in Family Court in Matter of Desmond J., the presentment agency filed a supporting deposition containing nonhearsay allegations to comply with Family Court Act § 311.2 (3). The juvenile “objected, arguing that only the felony complaint and the other papers transferred from criminal court could properly be deemed the petition[, and] moved to dismiss the petition as jurisdictionally defective, as it did not contain non-hearsay allegations” (93 NY2d at 950). Both Family Court and the Appellate Division (246 AD2d 111 [2d Dept 1998]) rejected the juvenile’s claim.

The Appellate Division adopted the position pressed by the presentment agency here; i.e., that a removal order and whatever other pleadings and proceedings may accompany it are deemed by Family Court Act § 311.1 (7) to constitute a facially sufficient petition. The Appellate Division recognized that we had “consistently stated that a juvenile delinquency petition must contain nonhearsay factual allegations which support every element of the crimes charged to meet the legal sufficiency requirements of Family Court Act § 311.2” (246 AD2d at 113, citing Matter of Neftali D., 85 NY2d 631 [1995]; Matter of Rodney J., 83 NY2d 503 [1994]; Matter of Edward B., 80 NY2d 458 [1992]; Matter of Jahron S., 79 NY2d 632 [1992]; Matter of Detrece H., 78 NY2d 107 [1991]; and Matter of David T., 75 NY2d 927 [1990]). “All of these cases were decided upon the theory that because a juvenile delinquency petition may be used to deprive a juvenile of his liberty, the accuracy of the allegations contained therein must be reliable” (246 AD2d at 113-114). The Court concluded, however, that these considerations were not relevant in the removal context because “there will generally have been proceedings held [i.e., a felony hearing or grand jury proceeding] to test the case against the accused juvenile offender”; and, further, the Criminal Court “is required, depending upon the extent of action previously taken in Criminal Court, to make findings as to reasonable cause or evidentiary sufficiency” (id. at 115).

We affirmed the Appellate Division, but on different grounds entirely. As previously noted, the presentment agency had filed a supporting deposition satisfying the requirements of Family Court Act § 311.2 (3) at the initial appearance in Family Court. Because “[i]n a removal context, this was the earliest stage at which the deposition could have been filed,” we concluded that the petition was not improperly amended within the meaning of Family Court Act § 311.5 (93 NY2d at 951), and was therefore facially sufficient. Accordingly, in Matter of Desmond J. we did not need to reach the “broader question” that we now resolve. (Id. at 952.) In short, because the papers transferred from the Criminal Court, as supplemented at the earliest possible moment by the supporting deposition, in fact satisfied the requirements of section 311.2 (3), we did not need to decide in Matter of Desmond J. whether they were required to do so.

We have, moreover, consistently viewed petitions failing to satisfy Family Court Act § 311.2 (3) as exhibiting a nonwaivable jurisdictional defect (see Matter of Neftali D., 85 NY2d at 636-637; Matter of Rodney J., 83 NY2d at 507; Matter of Jahron S., 79 NY2d at 637; Matter of Detrece H., 78 NY2d at 109-110; Matter of David T, 75 NY2d at 929). In People v Casey (95 NY2d 354 [2000]), we recently considered whether a hearsay pleading violation of CPL 100.40 (1), from which Family Court Act § 311.2 is derived, is jurisdictional and nonwaivable. We concluded that it was not. In doing so, however, we noted “the importance of the curability of a particular procedural defect as a factor weighing in favor of requiring preservation” (id. at 367). Because a legally insufficient juvenile delinquency petition under Family Court Act § 311.2 (3) cannot be cured by amendment, “we have held that hearsay pleading defects in delinquency petitions need not be preserved” (id.).

Finally, there may indeed be cases where the reliability of the charges in a felony complaint will have been tested at a hearing or in the grand jury or otherwise during the course of juvenile offender proceedings taking place in a criminal court prior to removal. In such cases, the juvenile may receive protections equivalent to a nonhearsay supporting deposition. In this case, however, no such equivalent protections were afforded Michael M.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the petition dismissed.

R.S. Smith, J. (dissenting).

We dissent, and would hold that Michael M. waived his right to have a nonhearsay deposition filed in support of the juvenile delinquency petition when he failed to raise this issue at any time before taking an appeal.

I

On April 2, 2002, a 13-year-old boy with a bicycle was set upon by a gang of other boys near Yankee Stadium. The assailants, trying to steal the bicycle, punched the victim in the face, knocked him down and kicked him while he lay on the ground. Michael, 14, was arrested near the scene and identified by the victim and other witnesses as one of the participants in the assault.

Michael was arraigned on a felony complaint in Criminal Court. As is permissible (CPL 100.15 [3]), the Criminal Court complaint was based on hearsay; the arresting officer related what the victim had told him. Later, the prosecutor decided that a felony prosecution would not be necessary, and that a juvenile delinquency proceeding in Family Court would be preferable. On motion of the prosecution, and without objection, Michael’s case was removed to Family Court.

Family Court complaints, unlike felony complaints in Criminal Court, must contain, or be supported by depositions that contain, “non-hearsay allegations” (Family Ct Act § 311.2 [3]). Thus, after the case was removed, the City of New York, which was presenting the delinquency petition, should have submitted to the Family Court a deposition from the victim supporting the officer’s hearsay complaint (Matter of Desmond J., 93 NY2d 949 [1999]). The City omitted to do this. Michael did not complain of, or call the Family Court’s attention to, the omission.

The case proceeded to a hearing, and Family Court found that Michael had committed acts which, if committed by an adult, would have constituted attempted robbery in the first degree, assault in the second degree, and several other crimes. Michael was adjudged a juvenile delinquent and placed on probation for 24 months. The Family Court’s order of disposition required that he receive counseling and obey curfews. Michael appealed from this order and on appeal argued, for the first time, that the proceedings against him were flawed because no deposition containing “non-hearsay allegations” had been filed.

II

It is an unquestioned rule, applicable in almost all cases, that a litigant may not complain on appeal of errors that he did not bring to the attention of the lower court. There are a few exceptions, for errors so fundamental that justice requires their correction, but there is no reason in principle why a violation of the “non-hearsay” requirement of Family Court Act § 311.2 (3) should be placed in that category. Michael’s argument here, which the majority accepts, is based not on principle but on some peculiarities in our Court’s case law.

One of the errors considered so fundamental that it may be raised for the first time on appeal is the failure of an accusatory instrument to allege facts that constitute the charged crime. Where the acts the defendant allegedly committed do not violate the criminal statute on which the prosecution is based, we have permitted defendants to raise the issue on appeal even though they did not raise it below. We have grounded this result on the theory that an accusatory instrument that fails to allege essential facts is insufficient to confer jurisdiction on the trial court (People v Case, 42 NY2d 98 [1977]).

In Case, we stated the rule broadly: “A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” (id. at 99; citation omitted). Language like this is open to the mistaken interpretation that not just a failure to allege facts constituting the charged crime, but every technical defect in the instrument, is a “nonwaivable jurisdictional” error. We made such a mistake, in dictum, in People v Alejandro (70 NY2d 133 [1987]). All we held in Alejandro was that a misdemeanor information charging defendant with resisting arrest was jurisdictionally deficient when the facts alleged failed to support an element of the charged crime— that the arrest in question was “authorized.” In stating the rule, however, we tracked the language of the statute governing misdemeanor informations, Criminal Procedure Law § 100.40 (1) (c)—which, like the Family Court Act section at issue in this case, contains a “non-hearsay” requirement. Thus, we said in Alejandro that an information which “lacked the necessary nonhearsay allegations which would establish, ‘if true, every element of the offense charged and the defendant’s commission thereof’ ” contained a “jurisdictional defect which was not waived by defendant’s failure to raise the issue until after completion of the trial” (id. at 134-135).

In People v Casey (95 NY2d 354, 362 [2000]) we found it necessary to “revisit” Alejandro and we retracted “Alejandro's suggestion that the . . . non-hearsay requirement of CPL 100.40 (1) (c) was ‘jurisdictional’ and, thus, non-waivable and reviewable on appeal without preservation.” Our holding in Casey rests in part on an analysis of the background and purpose of CPL 100.40 (1) (c), but ¿so in part on what we called “the general principles governing the narrow instances where this Court has departed from the requirement that errors in criminal proceedings have to be preserved at the trial court in order to be reviewable as an issue of law.” (Id. at 363.) We said in Casey.

“[T]he failure to preserve has been excused for only the most fundamental procedural irregularities . . . [I]t is only ‘where “the error complained of goes to the essential validity of the proceedings conducted below” such that “the entire trial is irreparably tainted,” [that] it need not be preserved to present a question of law reviewable by this Court’ (People v Agramonte, 87 NY2d 765, 770 [quoting People v Patterson, 39 NY2d 288, 295-296] [emphasis supplied]). Pleading errors involving omission of elements of the charged crime are fundamental. They impair a defendant’s basic rights to fair notice sufficient to enable preparation of a defense and to prevent double jeopardy. Hearsay pleading defects do not implicate any of those basic rights of an accused.” (Id. at 366 [emphasis added in part]; accord People v Keizer, 100 NY2d 114, 121 [2003] [“a purported hearsay defect in an accusatory instrument is nonjurisdictional”].)

The reasoning of Casey is convincing, and logically it should control our decision here. A problem arises, however, because, in a two-sentence dictum near the end of the Casey opinion, we distinguished juvenile delinquency proceedings from proceedings on Criminal Court misdemeanor informations, thus seeming to imply that the Casey rule would not apply in delinquency cases. We said:

“Contrastingly, a legally insufficient juvenile delinquency petition under Family Court Act § 311.2 (3), the counterpart to CPL 100.40 (1) (c), cannot be cured by amendment (see, Family Ct Act § 311.5 [2] [b]). Thus, we have held that hearsay pleading defects in delinquency petitions need not be preserved (see, Matter of Rodney J., 83 NY2d 503 [ ]; Matter of Detrece H., 78 NY2d 107).” (95 NY2d at 367.)

This dictum, unlike the rest of the Casey opinion, will not withstand analysis. The first sentence of the dictum distinguishes juvenile delinquency from misdemeanor cases because a flaw in a delinquency petition, unlike a flaw in a misdemeanor information, “cannot be cured by amendment.” As we noted in Casey, the curability of a procedural defect is an important factor weighing in favor of requiring preservation. However, although a defect in a delinquency petition cannot be cured by amendment, it can be cured. Here, for example, if Michael had made a timely motion to dismiss the petition, his motion presumably would have been successful, but the City could simply have brought another petition. Here, as in Casey, curability furnishes an important reason why preservation should be required.

The second sentence of the Casey dictum says “we have held” that hearsay defects in delinquency petitions are nonwaivable— but the two cases cited for that proposition do not support it. Neither Matter of Rodney J. (83 NY2d 503 [1994]) nor Matter of Detrece H. (78 NY2d 107 [1991]) involved any issue of waiver. In both cases, the alleged delinquent had preserved the defect in the petition by moving to dismiss in Family Court. The same is true of two other cases cited by the majority here, Matter of Jahron S. (79 NY2d 632 [1992]) and Matter of Neftalí D. (85 NY2d 631 [1995]). There appears to be only one case, Matter of David T. (75 NY2d 927 [1990]) in which we held that a hearsay defect in a delinquency petition was nonwaivable—and David T. is a brief memorandum decision in which we relied exclusively on Alejandro. There is no reason why the David T. holding should have survived our decision in Casey, 10 years later, to revisit Alejandro.

We thus conclude that the majority errs in following the Casey dictum. We would instead follow the Casey holding and the powerful reasoning that supports it, and would conclude that a hearsay defect in a delinquency petition, like a hearsay defect in a criminal court misdemeanor information, is nonjurisdictional and may be waived.

Ill

The result in this case is unfortunate. It is always unfortunate—though, of course, it is sometimes inevitable—when a meritorious case fails because of a lawyer’s omission to file the right piece of paper, but it is especially so in juvenile delinquency cases. Such cases serve not only to protect the community from troubled young people like Michael, but to give these young people themselves, to the extent that an imperfect system can manage it, the help they need. The rule the Court adopts today, by magnifying the consequences of a procedural error, correspondingly reduces the chances of doing practical good. When a boy or girl is adjudicated delinquent, and a court orders the services that it thinks most appropriate, the services may or may not help—but they will certainly not help if they are terminated in midstream because a lawyer has belatedly discovered a procedural glitch. Nor is it helpful to send the message to Michael, and to future Michaels, that violent and antisocial conduct will have no consequences if a lawyer can discover a long-neglected flaw in paperwork.

IV

Accordingly, we would affirm the decision of the Appellate Division.

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

Order reversed, etc.

      . CPL 180.75 (4) provides that when a juvenile offender is arraigned before a local criminal court upon a felony complaint, the court shall order removal to Family Court at the District Attorney’s request if, upon consideration of criteria specified in CPL 210.43 (2), removal is determined to be “in the interests of justice.” These criteria, which the court must consider “to the extent applicable,” include the seriousness and circumstances of the offense, the extent of harm caused and the evidence of guilt, whether admissible or inadmissible at trial (CPL 210.43 [2]). Additional showings are required where the felony complaint charges murder in the second degree, rape in the first degree and other specified serious crimes (see CPL 180.75 [4]). Further, where a court directs removal to Family Court, the provisions of CPL 725.05 govern the order. For a removal order made pursuant to CPL 180.75 (4), the court must specify the act or acts it found “reasonable cause to allege” (CPL 725.05 [3]).

      . The form order purports to be an order for Supreme Court to remove a criminal proceeding to Family Court upon the People’s motion, acting pursuant to paragraph (a) of CPL 180.75 (4). This provision, which took effect on September 1, 1978 (see L 1978, ch 481, §§ 33, 67), was repealed when section 180.75 (4) was substantially amended, effective August 4, 1979 (see L 1979, ch 411, §§ 5, 26; Governor’s Approval Mem, 1979 McKinney’s Session Laws of NY, at 1800). Thus, the order is not only boilerplate, but outdated boilerplate.

      . When the Legislature recodified the Family Court Act’s juvenile delinquency provisions in 1982, it restricted origination of juvenile delinquency proceedings to presentment agencies (see Family Ct Act § 310.1 [2]; see also L 1982, ch 920, §§ 1, 28).

      . As a result, Michael M. would have been entitled to a probable-cause hearing in Family Court because he was not afforded a hearing to test the evidence in Criminal Court, and he did not waive his right to a hearing on the felony complaint.

      . The dissent suggests that this disserves young people charged with juvenile delinquency. We do not doubt that among the purposes of a delinquency adjudication is the provision of necessary services to the delinquent. But we recognize as well that a system of justice must always ensure that procedural safeguards are met and legal requirements are fulfilled. Under our law, presentment agencies may only prosecute based on a facially sufficient petition. Because their failure to do so has consequences, we are confident that they will be vigilant about complying with their statutory mandate in the future.


source: Caselaw Access Project

author: G.B. Smith, J.

license: Public Domain

text:
    [821 NE2d 130, 787 NYS2d 705]
    In the Matter of Word of Life Ministries, Petitioner, v Nassau County et al., Respondents. (Proceeding No. 1.) In the Matter of Word of Life Ministries, Respondent, v Incorporated Village of Freeport, Appellant. (Proceeding No. 2.)
    Argued October 20, 2004;
    decided November 30, 2004

      POINTS OF COUNSEL

      Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, LLP, Mineóla (Richard A. Blumberg and Jessica L. Jamron of counsel), for appellant.
    I. The assistant pastors are not officiating clergymen within the meaning of RPTL 462. (Matter of City of Lackawanna v State Bd. of Equalization & Assessment, 16 NY2d 222; People ex rel. Untermyer v McGregor, 183 Misc 218, 269 App Div 779, 295 NY 237; Matter of Holy Trinity Orthodox Church of E. Meadow v O’Shea, 186 Misc 2d 880.) II. The applications submitted by respondent state that the assistant pastors are not officiating clergymen. III. There is nothing in the lower court proceeding to support a finding that the determinations of the Village Assessor and Village Board of Review were illegal, arbitrary, capricious or unauthorized. (Arverne Bay Constr. Co. v Thatcher, 278 NY 222; Matter of Temple Israel of Lawrence v Plaut, 6 AD2d 886; Matter of Point Lookout Civic Assn. v Zoning Bd. of Appeals of Town of Hempstead, 94 AD2d 744; Matter of Campus v Delany, 62 AD2d 990; Corter v Zoning Bd. of Appeals for Vil. of Fredonia, 46 AD2d 184; Matter of Agoglia v Glass, 35 AD2d 954; Matter of Hiscox v Levine, 31 Misc 2d 151; Matter of General Cinema Corp. v Foley, 60 AD2d 856; Shoreham-Wading Riv. Cent. School Dist. v Town of Brookhaven, 107 AD2d 219; Moses v Koch, 97 Misc 2d 243.) IV The below CPLR article 78 proceeding was improper. (Matter of Krugman v Board of Assessors of Vil. of Atl. Beach, 141 AD2d 175.)

      Joseph P. Infranco, Mineóla, and Charles E. Holster III, for respondent.
    I. The parsonage exemption provided in Real Property Tax Law § 462 for property utilized by “officiating clergymen” clearly extends to residences of full time, ordained clergy who officiate in all aspects of religious services. (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95; Matter of Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244; People ex rel.

      Watchtower Bible & Tract Socy. v Haring, 8 NY2d 350; Matter of Legion of Christ v Town of Mount Pleasant, 1 NY3d 406; Matter of Holy Trinity Orthodox Church of E. Meadow v O’Shea, 186 Misc 2d 880.) II. The appeal raises a hypothetical question and improperly seeks to have the judiciary intrude into ecclesiastical functions. (Lemon v Kurtzman, 403 US 602; Serbian E. Orthodox Diocese v Milivojevich, 426 US 696; Corporation of Presiding Bishop v Amos, 483 US 327.) III. Appellants are seeking review of factual findings by the trial court which were upheld by the Appellate Division. (Beatty v Guggenheim Exploration Co., 223 NY 294; White v Adler, 289 NY 34; El Gemayel v Seaman, 72 NY2d 701; Matter of Rashbaum v Tax Appeals Trib. of State of N.Y., 229 AD2d 723.) IV A CPLR article 78 proceeding was the proper method to challenge appellant’s determination. (Matter of Dudley v Kerwick, 52 NY2d 542; Matter of Krugman v Board of Assessors of Vil. of Atl. Beach, 141 AD2d 175.) V If the Appellate Division is reversed, this case should be remanded for consideration of the application of estoppel, constitutional violations, and any other issues not considered in the original proceeding.
   OPINION OF THE COURT

G.B. Smith, J.

The issue here is whether renewal applications for four properties located in the Village of Freeport, Nassau County, are entitled to tax exemption pursuant to Real Property Tax Law § 462. We affirm the order of the Appellate Division holding that the properties are tax exempt.

On September 24, 1999, respondent, Word of Life Ministries, submitted to Nassau County renewal applications for tax exempt status for four properties on the ground that they were used as residences by “officiating clergymen.” The applications mistakenly answered “yes” in response to the question whether the properties were used for purposes other than as residences of “the officiating clergy”—stating that they were used as the residences of assistant pastors. Before the tax authorities made a decision, respondent corrected the applications before the County to state that the properties were used as residences for officiating clergymen. After reviewing the applications, Nassau County concluded that the properties were not tax exempt under RPTL 462. Respondent submitted similar applications to the Village of Freeport on July 25, 2000, but the Village rejected respondent’s attempt to correct its mistake. These applications were denied on or about August 15, 2000.

Respondent filed a CPLR article 78 petition against the County on July 17, 2000, and against the Village of Freeport on December 6, 2000. On March 20, 2001, the proceedings were consolidated.

After examinations before trial and a review of documentary evidence, Supreme Court determined that the applications were improperly denied, annulled the county and village decisions and granted the applications. Only the Village appealed to the Appellate Division, which affirmed the determination (Matter of Word of Life Ministries v Nassau County, 309 AD2d 760 [2d Dept 2003]). This Court granted the Village leave to appeal.

RPTL 462 states that “property owned by a religious corporation while actually used by the officiating clergymen thereof for residential purposes shall be exempt from taxation.” At issue here is whether the men living at the four residences in the Village of Freeport are “officiating clergymen.”

The Village asks us to construe the term “officiating clergymen”—undefined in the statute —as limited to the “spiritual and settled leader” of a church. In effect, the Village argues that there will frequently be only one officiating clergy person per congregation—the cleric who has ultimate supervisory authority over the other clergy. In the Village’s view, an “assistant pastor,” by virtue of title alone, can rarely constitute officiating clergy within the meaning of the statute.

We decline to read the statute so narrowly. True, “officiating clergymen” does not mean all clergymen. But neither does it mean only one clergy person who presides over subordinates. Rather, we construe “officiating” as looking outward to a cleric’s relationship with his or her congregation, and not to the hierarchical structure of the various clergy persons. Thus, a full-time, ordained member of the clergy who presides over an established church’s ecclesiastical services and ceremonies, conducts weddings and funerals, and administers the sacraments of the church—in short, one who “officiates”—is entitled to the statutory tax exemption.

In arguing for a more restrictive definition, the Village points to New Jersey case law, which the Village contends interprets a similar New Jersey statute to limit that state’s parsonage exemption to the “settled leader” of a church (see NJ Stat Ann § 54:4-3.6 [exempting from taxation “the buildings, not exceeding two, actually occupied as a parsonage by the officiating clergymen of any religious corporation”]). In truth, however, New Jersey’s test imposes no such restriction and the Village’s position is based on a misreading of that state’s precedent.

The Village cites Trenton Church of Christ v City of Trenton (3 NJ Tax 267, 274 [1981]) for the proposition that a pastor seeking a parsonage exemption in New Jersey must be the “settled leader” of a church, which the Village takes to mean the supervising cleric. The Village cites several cases in which exemption was denied because the person was not the settled leader: Friends of Ahi Ezer Congregation, Inc. v Long Branch City (16 NJ Tax 591, 597-598 [1997] [rabbi who assisted the settled leader in various functions such as reading from the Torah and conducting religious classes not entitled to exemption]), Shrine of Our Lady of Fatima v Mantua Twp. (12 NJ Tax 392, 395, 399 [1992] [an appointed deacon whose duties included conducting mass twice a month and visiting nursing homes to serve Holy Communion not entitled to an exemption as an officiating clergyman]), and City of Long Branch v Ohel Yaacob Congregation (20 NJ Tax 511, 519 [2003] [visiting pastors not officiating clergymen]).

In St. Matthew’s Lutheran Church for the Deaf v Division of Tax Appeals (18 NJ Super 552, 87 A2d 732 [1952]), the New Jersey Appellate Division granted tax exemption for a building occupied by a minister assigned to conduct worship services for the deaf. The court held that tax exemption could not be granted to the residence of an itinerant preacher but that an officiating clergy person “must be a settled or incumbent pastor . . . installed over a parish, church or congregation” and “must be serving the needs of a reasonably localized and established congregation” (18 NJ Super at 558, 87 A2d at 735). In Congregation Ahavath Torah v Englewood City (21 NJ Tax 318, 320 [2004]), the New Jersey Tax Court, in holding that the residences of a synagogue’s rabbi and cantor both qualified for the parsonage exemption, explained that “it is not status or title, but the services performed that determine if the exemption will apply.” Thus, New Jersey looks, as we do, to the character and “extent of the clergyman’s activities” (Friends of Ahi Ezer Congregation, Inc. v Long Branch City, 16 NJ Tax at 595 [1997]; see also Shrine of Our Lady of Fatima v Mantua Twp., 12 NJ Tax 392, 397-398 [1992]). “If the duties sound like those performed by congregational leaders of all religious denominations, the clergyman is considered an officiating clergyman of the religious corporation” (Ahi Ezer, 16 NJ Tax at 595).

Those lower New York courts that have addressed the issue have uniformly applied the correct test. Thus, in Matter of Holy Trinity Orthodox Church of E. Meadow v O’Shea (186 Misc 2d 880 [Sup Ct, Nassau County 2001]), the court held that the church choir director was not an officiating clergyman because, although he was ordained as a subdeacon and cantor within the church, he could not officiate at weddings or funerals and his sole ecclesiastical responsibility was to provide liturgical music for these ceremonies. By contrast, in Temple Beth Sholom, Inc. of Roslyn, NY. v Nassau County Dept, of Assessment, Bur. of Exemptions (2001 NY Slip Op 50147[U] [Sup Ct, Nassau County]), an assistant rabbi was held to be officiating clergy where he was employed full time by the synagogue; conducted secondary services on Sabbath and all holidays; taught Sisterhood and Men’s Club classes during the year; supervised youth groups; conducted weddings, funerals, and baby namings when the rabbi was not available; and visited members in hospitals and homes after the death of family members (see also Full Gospel Tabernacle of Long Is., N.Y., Inc. v Board of Assessor of Town of Brookhaven, NYLJ, Jan. 25, 1982, at 15, col 6 [Sup Ct, Suffolk County] [assistant pastor entitled to exemption as officiating clergy]; 5 Ops Counsel SBEA No. 54, at 105 [1976] [suggesting that an officiating clergy is someone ordained who “preach(es) on a regular basis”]).

We therefore conclude that respondent is entitled to a parsonage exemption for each of the challenged properties, declining to hold that the mere designation of one of the pastors here as the “Senior Pastor” means that as a matter of law he and he alone is the “officiating” clergy. All of the pastors, including those living at the residences in question, were ordained and held no outside employment. All took part in church services and shared in the preaching. All provided marital counseling, officiated at marriages and funerals, and administered the sacraments recognized by the church. They also ministered to the youth of the church and took part in outreach to the homeless. Indeed, the pastors ministered to at least 2,000 people weekly. Because the pastors’ salaries are low, respondent provides them with housing, located near the church. We thus reject the Village’s argument that the residents in question are not officiating clergy.

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

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

Order affirmed, with costs.

       Supreme Court looked for guidance to Religious Corporations Law § 2, which defines the term “clergyman” as “a duly authorized pastor, rector, priest, rabbi, and a person having authority from, or in accordance with, the rules and regulations of the governing ecclesiastical body of the denomination or order, if any, to which the church belongs, or otherwise from the church or synagogue to preside over and direct the spiritual affairs of the church or synagogue.”


author: Rosenblatt, J. Graffeo, J. (concurring).

text:
    [821 NE2d 122, 787 NYS2d 697]
    The People of the State of New York, Respondent, v Franklin Rodriguez, Appellant.
    Argued October 19, 2004;
    decided November 30, 2004

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Barbara Zolot and Robert S. Dean of counsel), for appellant.
    I. It was error (a) under People v Burgos-Santos (98 NY2d 226 [2002]) for the trial court to admit on rebuttal the factually mistaken notice of alibi appellant disavowed during trial; and (b) for the court, having admitted the notice, to then bar appellant’s mother, the source of the information in the notice, from testifying about the notice to explain its inconsistency with the trial defense. (Williams v Florida, 399 US 78; People v Rivera, 58 AD2d 147, 45 NY2d 989; People v Brown, 98 NY2d 226; People v Nelu, 157 AD2d 864; Brooks v Tennessee, 406 US 605; United States v McKeon, 738 F2d 26; People v Laing, 79 NY2d 166; People v Pelchat, 62 NY2d 97; Taylor v Illinois, 484 US 400; People v Dawson, 50 NY2d 311.) II. The court erred in refusing to issue a missing witness charge against the People for their failure to produce Pacasio Beuno, a concededly material witness, where the prosecutor failed to demonstrate that any “diligent efforts” were made to locate him. (Reid v Senkowski, 961 F2d 374; People v Savinon, 100 NY2d 192; People v Gonzalez, 68 NY2d 424; Graves v United States, 150 US 118; People v Kitching, 78 NY2d 532; People v Vasquez, 76 NY2d 722; People v Robertson, 205 AD2d 243; People v Gladden, 180 AD2d 747; People v Crimmins, 36 NY2d 230.) III. The court violated appellant’s constitutional and statutory right to be present by excusing a qualified sworn juror “on consent” in appellant’s absence. (People v Buford, 69 NY2d 290; People v Harris, 99 NY2d 202; People v Roman, 88 NY2d 18; People v Mullen, 44 NY2d 1; People v Maher, 89 NY2d 318; People v Davidson, 89 NY2d 881; People v Childs, 247 AD2d 319; People v Sprowal, 84 NY2d 113; People v Morales, 80 NY2d 450; People v Torres, 80 NY2d 944.)

      Robert T. Johnson, District Attorney, Bronx (Yael V. Levy, Joseph N. Ferdenzi and Stanley R. Kaplan of counsel), for respondent.
    I. Defendant’s guilt was proven beyond a reasonable doubt by overwhelming evidence. II. The trial court properly (1) admitted defendant’s alibi notice into evidence on the People’s rebuttal case, and (2) precluded defendant’s mother from testifying about the notice. (People v Burgos-Santos, 98 NY2d 226; Williams v Florida, 399 US 78; People v Stephens, 84 NY2d 990;
      People v Iannelli, 69 NY2d 684; People v Whitehead, 305 AD2d 286, 100 NY2d 600; People v Thomas, 210 AD2d 935; People v Parson, 268 AD2d 208; Taylor v Illinois, 484 US 400; People v White, 228 AD2d 209; United States v Chiavola, 744 F2d 1271.) III. The trial court properly declined to give a missing witness charge with respect to Pacasio Beuno. (People v Stephens, 84 NY2d 990; People v Keen, 94 NY2d 533; People v Gonzalez, 68 NY2d 424; People v Savinon, 100 NY2d 192; People v Macana, 84 NY2d 173; People v Delacruz, 276 AD2d 387; People v Escalera, 220 AD2d 259, 87 NY2d 846; People v Smith, 279 AD2d 259, 96 NY2d 835; People v Vasquez, 76 NY2d 722; People v Robertson, 205 AD2d 243.) IV Defendant’s right to be present at a material stage of his trial was not abridged by his absence from a discussion about a sworn juror’s continued fitness to serve. (People v Dokes, 79 NY2d 656; People v Robles, 86 NY2d 763; People v Sandoval, 34 NY2d 371; People v Metro, 173 AD2d 282, 79 NY2d 1004; People v Harris, 99 NY2d 202; People v Morales, 80 NY2d 450; People v Mullen, 44 NY2d 1; People v Aguilera, 82 NY2d 23; People v Darby, 75 NY2d 449; Snyder v Massachusetts, 291 US 97.)
   OPINION OF THE COURT

Rosenblatt, J.

The Legislature has enacted a protocol in connection with alibi defenses in criminal cases. Pursuant to CPL 250.20 (1), the prosecution may compel the defense to serve a notice that spells out the particulars of an intended alibi defense. If a defendant fails to supply the notice or calls a witness not specified in it, the statute gives the trial court discretion to exclude alibi testimony or receive it after granting the prosecution an adjournment (CPL 250.20 [3]). In the case before us, the defense, after disavowing reliance on its alibi notice but not withdrawing it, introduced two alibi witnesses who gave a new alibi relating to a different time frame. Rather than strike their testimony, the court allowed the prosecution to introduce the notice of alibi on its rebuttal case. We agree with defendant that this was error.

I.

The jury heard evidence that in mid-August 1997, defendant had an altercation with Pacasio Beuno and James Hiciano. Defendant later encountered Beramy Garcia and told him that if defendant were ever to see Garcia with Beuno or Hiciano, he would shoot them all. In the early morning hours of August 28, 1997, Beuno, Garcia and Hiciano were walking together on a public street in the Bronx when a car with no lights cruised slowly by them. From the front passenger seat, defendant fired several shots, wounding all three men. Defendant was eventually apprehended and indicted for the shootings.

Defendant’s first lawyer prepared an alibi notice stating that at “the date and time the alleged crime was committed,” defendant was at a birthday party on Sheridan Avenue in the Bronx, in the presence of his uncle and another man. The notice did not set forth any dates or times.

During its case, the defense called defendant’s girlfriend who testified she was asleep with defendant during the early morning hours of August 28th—when the shooting took place—and that they woke up together at about 10:00 a.m. Defendant did not list her as an alibi witness even though she was obviously furnishing an alibi and a time frame different from the one described in the notice. The People, however, did not object to her direct testimony or ask to have it stricken, nor did they ask for an adjournment to investigate the new alibi.

Partway through his cross-examination of this witness, the prosecutor asserted for the first time that the girlfriend’s testimony violated CPL 250.20 and asked for a Dawson hearing to probe whether she was justified in withholding exculpatory information (see People v Dawson, 50 NY2d 311 [1980]). During the hearing, defendant’s attorney told the court that he had been mistaken as to the timing of the alibi and had “just brought back from the Dominican Republic an alibi witness [defendant’s uncle] who turns out not to be an alibi witness because I was looking at the wrong date.” Although defendant did not withdraw the alibi notice, it became obvious from the girlfriend’s surprise testimony that defendant was presenting a new and different alibi covering the early morning hours of August 28th, the time of the actual shootings. Defendant’s attorney maintained that only after speaking with defendant’s uncle did he realize that former counsel’s alibi notice covered the wrong, earlier time span. At the conclusion of the Dawson hearing, the court allowed the prosecution to impeach the witness for her failure to come forward earlier.

The defense also called the witness’s mother, who on cross-examination by the prosecution corroborated the new alibi. Again, the prosecution did not ask the court to preclude this testimony or seek an adjournment, but used the alibi notice in an attempt to refresh the mother’s recollection. Further, on its rebuttal case and over defendant’s objection, the prosecution introduced the alibi notice as a “judicial admission” to assail the credibility of defendant’s girlfriend and her mother, even though neither made statements contained in the alibi notice.

The prosecutor declined the court’s offer to strike defendant’s girlfriend’s alibi testimony. Both the girlfriend and the girlfriend’s mother had already been severely discredited, the former by the Dawson hearing and the latter by the prosecutor’s use of the conflicting, earlier alibi notice to “refresh her recollection”—even though the notice had no relevance to her testimony. Despite the effective cross-examination of the witnesses, the court further allowed the prosecutor to move the alibi notice into evidence during his rebuttal case. The prosecutor then argued in summation that the notice demonstrated defendant’s deceptiveness and consciousness of guilt. The court thus gave the prosecutor a two-fold tactical advantage: first, it allowed him to impeach the credibility of the new alibi witnesses with the notice; it then permitted the prosecutor to offer the notice as evidence of defendant’s duplicity.

The jury found defendant guilty of three counts of attempted murder in the second degree (Penal Law §§ 110.00, 125.25) and criminal use of a firearm in the first degree (Penal Law § 265.09). The Appellate Division affirmed, concluding that the use of the alibi notice did not warrant reversal. A Judge of this Court granted leave to appeal. Although we conclude that the use of the alibi notice was error, we affirm because the error was harmless.

II.

CPL 250.20 rests on the premise that in criminal cases a state may impose a limited form of pretrial discovery—in the form of an alibi notice requirement—on defendants without violating their Fifth Amendment and due process rights. The question before us is whether the prosecution may use the notice at trial to discredit the testimony of defendant’s witnesses and as evidence of his guilt.

In People v Burgos-Santos (98 NY2d 226, 235 [2002]), we held that the People could not use an alibi notice to cross-examine the defendant when the defense had withdrawn the notice before trial. We also recognized the potential unfairness in allowing the prosecution to exploit a withdrawn alibi notice, and that permitting the prosecution to impeach a defendant who had abandoned an alibi defense before trial could have a “fixing” tendency (id. at 234), tying the defendant ineluctably to a strategy that, owing to circumstances, might no longer be valid. While we disfavor unprincipled experimentation with trial tactics, we have never held or suggested that it is improper for parties to alter their strategies based on developments during the litigation so long as the opposing party is not prejudiced and there is no evidence of bad faith.

Burgos-Santos is instructive but critically different from the case before us. Contrary to the prosecution’s contention, it may not be read as authorizing the prosecution to introduce an alibi notice on rebuttal to discredit the testimony of defense witnesses. Here, in contrast to Burgos-Santos, the prosecutor did not use the alibi notice to cross-examine defendant, its nominal maker. Instead, after defendant abandoned the notice, the prosecutor introduced it as evidence to rebut the testimony of two defense witnesses and in his summation as evidence of defendant’s consciousness of guilt. This is particularly inappropriate where, as here, defendant had a plausible basis for abandoning the notice, with no claim of bad faith or prejudice to the prosecution.

If we adopted the prosecution’s argument, a defendant who serves an alibi notice relying on a particular witness would risk the introduction of the notice if, for some reason, the witness becomes unavailable. Under those circumstances, using the notice as evidence of defendant’s guilt could raise constitutional objections. The format projected by CPL 250.20 is carefully balanced, with rights and with remedies designed to redress violations. By authorizing the trial court to exclude alibi testimony (or to receive it after granting a prosecution adjournment), the statute shields the People from trial by ambush. The statute fosters procedural orderliness while protecting against fabricated or surprise testimony. It does not provide for any sanction other than an adjournment for the prosecution or an exclusion, in whole or in part, and we see no basis to allow the sanction imposed: introduction of the alibi notice on the prosecution’s rebuttal to discredit the testimony of witnesses other than defendant—witnesses who themselves made none of the statements contained in the alibi notice—and to use the notice affirmatively as evidence of guilt.

The prosecutor did not pursue a statutory remedy. Instead of raising the appropriate objection and availing himself of a CPL 250.20 (3) remedy (exclusion or adjournment to investigate), the prosecutor sat by, failing to object as the defense elicited more than 30 pages of trial transcript from a witness to an alibi for which no notice had been given. When the prosecutor finally raised the issue while cross-examining defendant’s girlfriend, he asked not for exclusion or an adjournment—which the court would have been compelled to grant before receiving testimony— but for a Dawson hearing, on which he prevailed. Having declined to seek a correct remedy, the prosecution cannot avail itself of an incorrect one.

Three of our colleagues would hold that the trial court properly admitted the alibi notice as evidence. We disagree. The statute offers two remedies. In its discretion, the trial court may preclude the alibi testimony (in whole or part) or it may receive it, provided the court first gives the prosecution a chance—an adjournment of not more than three days—to investigate. What the statute does not permit is the sanction the court allowed here. Despite the suggestion in the concurrence, our holding does not chill defendant’s constitutional right to present a defense. The trial court could have allowed the alibi defense following an adjournment. We conclude, however, that neither the statute nor the rules of evidence supported the court’s ruling here. We find it odd of our concurring colleagues to justify their affirmance based on the absence of error and to then characterize such an affirmance as somehow more protective of defendant’s constitutional rights. Indeed, an affirmance in which we condone the misuse of the alibi notice could carry its own constitutional objections.

Notwithstanding the improper introduction of the alibi notice, we do not believe this case merits reversal. There was overwhelming evidence of guilt, including the eyewitness testimony of two victims and his own announced intention to shoot the victims. We therefore conclude that the error was harmless (see People v Crimmins, 36 NY2d 230, 242 [1975]).

We have considered defendant’s remaining contentions and find them without merit. Accordingly, the order of the Appellate Division should be affirmed.

Graffeo, J. (concurring).

I would affirm the order of the Appellate Division because I conclude that the trial court did not abuse its discretion in allowing the introduction of evidence by both parties in this case.

After defendant was arrested and charged with attempted murder for allegedly shooting three people, his attorney prepared a notice of alibi pursuant to CPL 250.20 indicating that defendant was attending a birthday party at the time and date of the shootings. During the trial, defendant’s new counsel advised the People not to rely on the notice of alibi. Counsel claimed that the notice of alibi had been composed by his predecessor under the mistaken belief that the crime occurred at the same time as the party defendant purportedly attended when, in fact, the crime occurred approximately 18 hours earlier.

A revised alibi defense was introduced at trial when defense counsel called defendant’s girlfriend to testify. She told the jury that defendant had been present at her home on the night in question. At this point, the prosecutor asserted that defendant had violated CPL 250.20 by presenting an alibi witness who was not identified in the notice of alibi.

Although the prosecutor appropriately cited CPL 250.20, he apparently determined that it would be advantageous to impeach the new alibi evidence with the information stated in the prior notice. The prosecutor therefore did not seek to strike or preclude the testimony of defendant’s girlfriend, and did not attempt to introduce the notice of alibi during his cross-examination of the girlfriend or otherwise question her about how her recollection contradicted the notice of alibi. Nor did the People use the alibi notice to undermine the new defense during the testimony of the girlfriend’s mother, who stated she was also present in the home with defendant on the night of the shootings. Instead, the prosecutor used the notice of alibi in an attempt to refresh the mother’s recollection, without revealing the nature or contents of the document to the jury.

It was only after all of the defense witnesses testified that the prosecutor sought to introduce the alibi notice into evidence as part of the People’s rebuttal case for the purpose of impeaching the alibi evidence. Although defense counsel objected to the admission of the notice in evidence, the court ultimately allowed the People to use the notice of alibi but, to stem the possibility of unwarranted prejudice to defendant, instructed the jury that the notice was introduced for the sole purpose of impeaching the alibi defense and not as direct evidence of defendant’s guilt.

The question now presented is whether the trial court abused its discretion in determining that defendant should be permitted to offer new alibi evidence, despite his violation of CPL 250.20, while also allowing the People to address the discrepancy between defendant’s notice of alibi and the alibi testimony by introducing the written notice into evidence. The majority concludes that the trial court erred in admitting the notice of alibi as evidence in rebuttal to the new defense. I disagree.

First, the argument the majority adopts—that impeachment with the notice of alibi was prohibited by CPL 250.20—was not made to the trial judge. Instead, defense counsel indicated to the court that it was “discretionary, that the document be allowed in.” Thus, the majority’s position—that trial courts do not have such discretion—is not properly before us.

Second, the statute clearly authorizes a trial court to consider alternatives that further the truth-seeking function of the trial. CPL 250.20 (3) states that a court “may exclude” the testimony of an unnoticed alibi witness (emphasis added) and it “may” alternatively allow unnoticed alibi evidence to be presented to the jury after affording the People a reasonable adjournment to investigate the defense. The permissive nature of the statute indicates that the Legislature intended to provide a trial judge with appropriate latitude in deciding the extent of sanctions or how to otherwise address a request to introduce an eleventh-hour alibi. Even if the statute’s language does not allow for such a permissive interpretation, I believe, as addressed below, such an interpretation is required by the Constitution.

Nor is the majority’s analysis compelled by our recent decision in People v Burgos-Santos (98 NY2d 226 [2002]). We recognized that a notice of alibi cannot be used as an “informal judicial admission” to impeach the accused if the notice (1) is withdrawn before trial and (2) the defendant “elect[s] not to present an alibi defense at trial” (id. at 232, 235). The rationale underlying this principle is straightforward—if a defendant chooses not to present an alibi defense, no violation of CPL 250.20 occurs; the notice, therefore, is neither material nor relevant to any issue in the case because there is nothing to impeach and any question concerning the defendant’s compliance with statutory obligations is academic.

But defendant in this case stands before us in an admittedly different posture than the defendant in Burgos-Santos. Here, defendant chose to present an alibi defense that conflicted with the information he provided to the People. He injected a new alibi into the case and failed to withdraw the previous notice. Thus, unlike the Burgos-Santos scenario, in this case we have a clear violation of CPL 250.20 that rendered the credibility of the alibi defense a material issue.

The inadmissibility of the notice of alibi in Burgos-Santos was premised on two considerations that are not present in this case: that impeachment using a withdrawn notice against a defendant who does not assert an alibi defense at trial will “undermine the truth-seeking function that notice of alibi statutes were designed to foster” by “inhibit [ing] a defendant from abandoning a factually inaccurate defense posture” {id. at 235); and that the use of a withdrawn notice could “potentially implicate[ ] Fifth Amendment and due process concerns” {id. at 234) by locking a defendant into a particular defense at an early stage in the criminal justice process. In the case before us, the People’s use of the notice of alibi certainly did not inhibit defendant from abandoning the alibi he initially claimed. To the contrary, defendant, knowing that the notice allegedly was factually inaccurate and notwithstanding the possibility of preclusion under CPL 250.20, presented a contradictory explanation of his whereabouts. Because defendant was not “fixed” to the alibi he earlier noticed {id.), and to the extent any prejudice to him was caused by his failure to timely withdraw the notice, this case does not give rise to the Fifth Amendment implications that informed the result in Burgos-Santos.

In my view, the majority’s application of CPL 250.20 may unduly restrict an accused’s right to present a defense and therefore stands on dubious constitutional footing in light of an accused’s Sixth Amendment rights. In a case such as this, where defendant first asserted his new alibi defense approximately 2V2 years after the crime and relied on testimony by his girlfriend and her mother, providing the People with a short adjournment to investigate defendant’s new claims may well have been useless, leaving preclusion of all alibi testimony as the only remedy available under the majority’s rule. Although the Federal Constitution does not prohibit preclusion of defense evidence as a sanction or remedy for the violation of a discovery rule (see Taylor v Illinois, 484 US 400 [1988]), the United States Supreme Court has characterized preclusion as a “severe sanction” that “unquestionably implicates the Sixth Amendment” (Michigan v Lucas, 500 US 145, 153, 149 [1991]). The Supreme Court has, in fact, rejected the notion that “the imposition of a discovery sanction that entirely excludes the testimony of a material defense witness” will never offend the Sixth Amendment (Taylor v Illinois, 484 US at 409). The concept that emerges from this precedent is that, depending on the situation, preclusion of defense evidence may be justified, but in most cases lesser, “alternative sanctions would be ‘adequate and appropriate’ ” (Michigan v Lucas, 500 US at 152, quoting Taylor v Illinois, 484 US at 413). Under the circumstances of this case, the preclusion of all alibi testimony would have prejudiced the rights of defendant.

In fact, this case highlights the constitutional difficulties inherent in the rule announced today. According to the majority, the People would have been entitled to preclusion of all alibi evidence offered by defendant, even though there was, as the majority recognizes, “a plausible basis for abandoning the notice, with no claim of bad faith or prejudice to the prosecution” (majority op at 467-468). Defense counsel explained that the discrepancy between the alibi notice prepared before trial and the alibi presented at trial was attributable to a mistake by defendant’s former counsel, who apparently believed that the shootings occurred at the same time as the party when, as later discovered, the party began later in the evening on the day of the shootings. If the trial court had precluded the alibi evidence, defendant would have been left with no viable defense to explain his whereabouts at the time of the crime. Rather than imposing such a severe and prejudicial hardship on defendant, the trial court charted a more balanced course, allowing both parties to present their version of the evidence as to defendant’s whereabouts at the time of the crime. On this record, it cannot be said that the court abused its discretion by failing to impose on defendant the most extreme sanction allowed by law, especially when that remedy was never requested by the People.

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

Order affirmed.

      . According to the subsequent defense counsel, the source of the information in the alibi notice was defendant’s uncle who was in the Dominican Republic until mid-January 2000.

      . This alibi notice was dated November 9, 1998. Two days before the trial commenced—and more than a year after the date on the alibi notice—the newly assigned prosecutor asked defendant’s subsequent lawyer for a copy of the alibi notice, because the prosecutor “couldn’t find [the alibi notice]” in his file. More than 10 days into the trial, as of January 17 or 18, 2000, the prosecutor had still not investigated the notice of alibi, having just received the date of birth and address of the alibi witness. It is clear from this sequence of events that prior to trial the prosecutor neither investigated nor relied on the facts contained in the alibi notice.

      . The concurrence suggests that trial counsel did not preserve the argument that CPL 250.20 prohibits impeachment by prior alibi notice (concurring op at 471). We have no difficulty concluding tbat the 30 pages of argument over the admissibility of the notice preserved the issue for our review.

      . See Williams v Florida, 399 US 78 (1970); People v Copicotto, 50 NY2d 222, 229-230 (1980); People v Burgos-Santos, 98 NY2d 226, 233 (2002). See generally 4 LaFave, Israel and King, Criminal Procedure § 20.4, at 887-908 (2d ed 1999).

      . We noted that the applicable Federal Rule of Criminal Procedure precludes impeachment with a withdrawn alibi notice without restricting when a defendant might withdraw (see Burgos-Santos at 234-235; Fed Rules Grim Pro rule 12.1 [f]; see also Conn Super Ct Rules § 40-25; Mass Rules Grim Pro rule 14 [b] [1] [F]; DC Super Ct Rules Grim Pro rule 12.1 [f|; SD Codified Laws § 23A-9-6).

      . Indeed, on these facts, it is difficult to see how the prosecutor was prejudiced by the disavowal of the alibi notice (concurring op at 473). On the eve of trial the prosecutor had not even seen the alibi notice, and partway through trial he had not even investigated it.

      . In support of an affirmance, our concurring colleagues go so far as to aver that the preclusion of unnoticed alibi testimony may be unconstitutional—an argument that not even defendant has made. This issue is therefore not before us. Defendant raises no constitutional claims in this appeal.

      . We note that defense counsel, on realizing the mistake in the alibi notice, should have notified the court of the dilemma. Instead, in violation of section 250.20, the defense said nothing and elicited from defendant’s girlfriend a fine of testimony that furnished defendant with a brand new alibi. Had the defense acted properly and aired the issue in limine, the court could have heard both sides and exercised its discretion appropriately.

      . The statute provides that, upon demand by the People, the defendant must serve “a ‘notice of alibi,’ reciting (a) the place or places where the defendant claims to have been at the time in question, and (b) the names, the residential addresses, the places of employment and the addresses thereof of every such alibi witness upon whom [the defendant] intends to rely.” (CPL 250.20 [II.)

      . CPL 250.20 (3) states: “If at the trial the defendant calls such an alibi witness without having served the demanded notice of alibi, or if having served such a notice he calls a witness not specified therein, the court may exclude any testimony of such witness relating to the alibi defense. The court may in its discretion receive such testimony, but before doing so, it must, upon application of the people, grant an adjournment not in excess of three days.”

      . In light of the court’s limiting instruction, it is inaccurate to claim that the People were permitted “to use the notice affirmatively as evidence of guilt” (majority op at 468; see id. at 467, 467-468). The jury was told that the notice was “to be considered by you as to whether the People have or have not disproved the defense of alibi. . . . It’s not to be considered by you in the ultimate issue of guilt or innocence, only to be considered by whether the People have or have not proven the defendant’s position of alibi. And that’s the only purpose for that exhibit to be admitted.”

      . The majority’s concern that “a defendant who serves an alibi notice relying on a particular witness would risk the introduction of the notice if, for some reason, the witness becomes unavailable” (majority op at 468) is unwarranted. Unlike this case, a defendant in that situation presumably would not be presenting a new, unnoticed alibi defense in violation of CPL 250.20. I agree that, in such a situation, introduction of the notice into evidence most likely would be inappropriate, just as it was in Burgos-Santos.


author: Graffeo, J. Rosenblatt, J. (dissenting in part).

text:
    [821 NE2d 114, 787 NYS2d 689]
    In the Matter of John A. Graziano, as Election Commissioner of the County of Albany and as Member of the Board of Elections of the County of Albany, Appellant, v County of Albany et al., Respondents.
    Argued October 13, 2004;
    decided November 30, 2004

      POINTS OF COUNSEL

      DerOhannesian & DerOhannesian, Albany (Paul DerOhannesian II of counsel), for appellant.
    I. The County of Albany’s laws and actions violate the “equal representation” requirement of the New York Constitution and Election Law § 3-300. (Matter of Fugazy v Kern, 280 NY 375; Matter of O’Keeffe v Cohen, 275 NY 550; County of Chautauqua v Chautauqua County Employees’ Unit 6300 of Local 807 of Civ. Serv. Employees’ Assn., 181 AD2d 1052; Matter of Board of Elections v O’Rourke, 210 AD2d 402; Matter of Starr v Meisser, 67 Misc 2d 297, 39 AD2d 712, 33 NY2d 748.) II. Commissioner Graziano has standing to challenge the County of Albany’s violation of the New York State Constitution and Election Law § 3-300. (Matter of Dairylea Coop, v Walkley, 38 NY2d 6; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761; Matter of New York Assn. of Convenience Stores v Urbach, 230 AD2d 338; Silver v Pataki, 96 NY2d 532; Clinton v City of New York, 524 US 417; Baker v Carr, 369 US 186; Boryszewski v Brydges, 37 NY2d 361.) III. The Appellate Division confused discretionary and ministerial acts. (Matter of Wicksel v Cohen, 262 NY 446; Gagliardo v Colascione, 153 AD2d 710; Matter of Bridgham v Tutunjian, 84 AD2d 853; Matter of Lenihan v Blackwell, 209 AD2d 1048.)

      Michael C. Lynch, County Attorney, Albany, for respondents.
    I. The Appellate Division properly dismissed the petition for lack of standing in accord with Election Law § 3-212 (2) and § 3-300. II. The Board of Elections is subject to the County’s “hiring freeze” and thus the Board’s appointments of personnel must be preapproved by the County Committee to Fill Vacancies.
   OPINION OF THE COURT

Graffeo, J.

The issue on appeal is whether a single election commissioner may bring suit to challenge county actions that allegedly impair the equal representation of the major political parties in the staffing of a local board of elections. We conclude that the right to pursue such a claim is implicit in the constitutional and statutory requirement of balanced partisan representation on local boards of elections.

The Albany County Board of Elections consists of two commissioners (see Election Law § 3-200 [2]), one from each of the two major political parties. Petitioner John Graziano, the Republican commissioner, commenced this combined declaratory judgment action and CPLR article 78 proceeding contesting the actions of the County of Albany relating to Board staffing and funding. Petitioner sought a judgment declaring that the Board enjoyed independent discretion both to appoint and dismiss staff and to spend funds within its appropriation in furtherance of its statutory obligations. He also sought an order enjoining the County from interfering with Board appointments. Michael Monescalchi, the Democratic commissioner, did not authorize the litigation, nor did he join the suit.

The petition contains allegations raising two distinct claims. Petitioner alleges that the County had applied a hiring freeze in a manner that impaired Board functions and had failed to authorize spending to obtain training for Board employees that he claimed was essential to the proper functioning of the Board. In addition, petitioner asserted that the County had delayed and interfered with Board hiring decisions in a manner that resulted in political imbalance in staffing on the Board on multiple occasions over a two-year period to the detriment of his political party.

In response to the petition, the County moved to dismiss the proceeding relying on Election Law § 3-212 (2), which requires that all actions of local boards of elections be supported by “a majority vote of the commissioners.” The County argued that, as a single commissioner on Albany County’s two-commissioner Board of Elections, petitioner lacked the authority to pursue his claim because the lawsuit was not supported by majority vote of the Board.

Supreme Court denied the motion to dismiss. Without providing the County an opportunity to answer, Supreme Court addressed the merits, determining that the Board enjoyed complete authority to appoint personnel and that the County’s actions, principally the imposition of a hiring freeze, had improperly undermined Board authority.

The Appellate Division reversed the judgment and dismissed the petition, finding that as a sole commissioner of a two-commissioner board of elections, petitioner could not pursue his claim. We modify the judgment of the Appellate Division by reinstating petitioner’s claim in part and remitting this matter to Supreme Court for further proceedings.

The County’s challenge to petitioner’s ability to bring suit raises the related issues of capacity and standing. “Capacity to sue is a threshold matter allied with, but conceptually distinct from, the question of standing. As a general matter, capacity concerns a litigant’s power to appear and bring its grievance before the court” (Silver v Pataki, 96 NY2d 532, 537 [2001] [citation and internal quotation marks omitted]). The issue of capacity often arises in suits brought by governmental entities (see e.g. Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148 [1994]). “Being artificial creatures of statute, such entities have neither an inherent nor a common-law right to sue. Rather their right to sue, if it exists at all, must be derived from the relevant enabling legislation or some other concrete statutory predicate” (id. at 155-156). Capacity to sue may be expressly granted in enabling legislation or it may be inferred from review of the entity’s statutory functions or responsibilities.

Standing involves a determination of whether “the party seeking relief has a sufficiently cognizable stake in the outcome so as to cast[ ] the dispute in a form traditionally capable of judicial resolution” (id. at 155 [internal quotation marks and citations omitted]). The two-part standing inquiry is designed to determine whether the party who is bringing suit is a proper party to request an adjudication of the dispute, as follows:

“First, a plaintiff must show ‘injury in fact,’ meaning that plaintiff will actually be harmed by the challenged . . . action. As the term itself implies, the injury must be more than conjectural. Second, the injury a plaintiff asserts must fall within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted” (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004] [citations omitted]).

Without both capacity and standing, a party lacks authority to sue.

In this case, the County did not dispute that the Board of Elections, a governmental entity, has the capacity to commence litigation. Rather, it argued that petitioner—a single election commissioner—lacked such authority because Election Law § 3-212 (2) requires that “[a]ll actions of the board shall require a majority vote of the commissioners prescribed by law for such board.” The County therefore viewed the petition as an attempt to act on behalf of the Board absent the requisite vote of the other election commissioner.

We agree with the County that petitioner lacked capacity to pursue the part of his claim predicated on the County’s interference with Board functions as a whole. Petitioner alleged that the County’s imposition of a hiring freeze and its refusal to authorize the expenditure of funds for training impaired the ability of Board staff to properly prepare for upcoming elections. This aspect of the claim addressed the broad functioning of the Board. A lawsuit that raises concerns affecting the staff of both political parties is an “action” requiring approval of a majority of the commissioners under Election Law § 3-212 (2), in this case both petitioner and the Democratic commissioner. Absent such approval, petitioner lacked capacity to pursue those complaints against the County.

The same is not true of petitioner’s other claim—that the County’s actions resulted in intermittent political imbalance on the Albany County Board of Elections. This assertion implicates New York Constitution, article II, § 8, which mandates that all laws affecting the administration of boards of elections “shall secure equal representation of the two political parties which . . . cast the highest and the next highest number of votes.” Election Law § 3-300 similarly requires “equal representation of the major political parties” on boards of elections. The requirement of bipartisanship on local boards of elections is an important component of our democratic process for its purpose is to ensure fair elections.

Election commissioners are appointed by the county legislative body based on certificates of party recommendation filed by the chairman or secretary of the county committee of the appropriate political party (Election Law § 3-204). Thus, inherent in the statutory scheme is the requirement that each election commissioner be chosen by his or her party to represent its interests on the board of elections. As an individual election commissioner, petitioner therefore performs two distinct statutory functions—he assists his cocommissioner in the administration of the Board and he safeguards the equal representation rights of his party. When fulfilling the latter function, we conclude that petitioner may act alone to challenge the actions of the County. Petitioner’s capacity to sue to vindicate political interests grounded in the language of the Constitution and the Election Law is inherent in petitioner’s unique role as guardian of the rights of his party and must be implied from the constitutional and statutory requirement of equal representation. Recognition of such a right ensures that attempts to disrupt the delicate balance required for the fair administration of elections are not insulated from judicial review.

Election Law § 3-212 (2)’s requirement that £<[a]ll actions of the board shall require a majority vote” does not require a different result. The constitutional and statutory equal representation guarantee encourages even-handed application of the Election Law and when this bipartisan balance is not maintained, the public interest is affected. But a concrete injury is not suffered by the board of elections as a whole—it is the political party that has sustained an actionable injury. Thus, when a commissioner files a claim to assure equal representation on behalf of his or her political party, Election Law § 3-212 (2) is not implicated because the initiation of a political imbalance lawsuit is simply not board action that requires a majority vote.

We also conclude, contrary to the dissent, that petitioner alleged an injury in fact sufficient to confer standing to pursue his claim. Because the County’s objection to petitioner’s authority to bring suit was made in a pre-answer motion to dismiss, we must assume the truth of petitioner’s allegations and afford petitioner the benefit of every favorable inference (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]). Applying this standard, the petition states a cognizable claim that the County’s actions—particularly repeated delays in authorizing hiring requests without reasonable basis— resulted in unequal political representation on the Board on multiple occasions over a two-year period.

In addition to generally asserting that the County had delayed approving appointments causing a political imbalance in Board staffing, petitioner detailed a specific pattern of “delay, interference and rejection” of Board appointments, resulting in some cases in positions being left vacant for up to five months. Petitioner charted a comparison of the dates that particular positions were vacated against the dates the County eventually approved new appointees on the payroll, illustrating that vacancies frequently persisted for periods ranging from one to five months. Since the vacancies did not occur in pairs, we cannot presume that every time a Republican position was vacated there was a simultaneous vacancy in the Democratic staff. Rather, the petition alleges that the prolonged vacancies resulted in periods of political imbalance between the two segments of Board employees. Petitioner, of course, has no standing to complain of political imbalance suffered by the Democratic party—but he does have standing to contest the disadvantage to his own party. That the other political party may also have suffered periods of unequal representation does not rob petitioner of the right to pursue his claim that the County unreasonably delayed in approving hiring requests to the detriment of his party.

Petitioner alleged that the periods of political imbalance were the result of intentional county delay, not a failure of the Board to find suitable employees in a timely manner. For example, petitioner noted that where one employee departed on December 5, 2002, the Board had selected another—Jessica Gaul—to start the next day. However, the County did not allow Gaul to join the payroll until February 12, 2003, delaying the appointment for two months. Petitioner stated that Gaul was a Republican and asserted that this instance of delay caused a political imbalance in Board staffing during the period the position remained vacant. This example indicates that the Republicans were short-staffed for two months. In sum, assuming his allegations to be true, petitioner has alleged an injury in fact to his party that is different in kind or degree from that suffered by the Board or the public at large.

As we have affirmed the dismissal of part of petitioner’s claim, it is evident that we agree with the dissent’s conclusion that some of petitioner’s allegations did not involve political imbalance and therefore were insufficient to support his claim against the County. However, the unequal representation allegations detailed above were adequate to allege injury in fact sufficient to survive the motion to dismiss. The dissent has failed to assume the truth of these allegations and would effectively require petitioner to prove the merits of his claim in order to withstand the motion to dismiss. But, given the procedural posture of this case, we are obligated to give petitioner the benefit of every favorable inference. Thus, we do not find petitioner’s statements that the County’s actions caused periods of political imbalance to be conclusory—we see them as factual allegations that must be presumed to be true for purposes of resolving the motion to dismiss.

We hold that petitioner has capacity and standing and is entitled to resolution of his political imbalance claim. Therefore, the County’s motion to dismiss should have been denied with respect to this claim only, the County should have answered the complaint and a hearing should have been held to resolve the factual issues, including whether the County interfered with personnel hiring within the Board’s budget appropriation in a manner that resulted in periods of unequal political staff allocation. Because Supreme Court’s merits analysis focused on the general allegations of impairment of Board functions—the cause of action that should have been dismissed—rather than the political imbalance claim, this matter must be returned to Supreme Court for further proceedings.

Accordingly, the order of the Appellate Division should be modified, without costs, by remitting to Supreme Court for further proceedings in accordance with the opinion and, as so modified, affirmed.

Rosenblatt, J. (dissenting in part).

The plain language of Election Law § 3-212 (2) provides that the “majority” of a board of elections must authorize any action by the board. The Appellate Division unanimously concluded that this provision prohibits a single commissioner from bringing suit on behalf of a board of elections. No one can fault that Court for adopting this interpretation; indeed, it is difficult to read the statute any other way.

The majority, however, concludes that, because the State Constitution mandates equal partisan representation on boards of elections, Commissioner Graziano is authorized to go to court based only on his insufficient claims of imbalance. I dissent because Graziano has failed to allege an unequal representation. In my view, an aggrieved elections commissioner has capacity to sue, but a commissioner who does not allege an actionable grievance has no standing to do so.

I agree that in a proper case—one in which a single commissioner properly alleges a threat to a board’s partisan equilibrium—the statute’s plain language should yield and the commissioner should have capacity to sue. When a board of elections becomes unbalanced along party lines because of a practice imposed on it by an outside governmental entity, applying the facial command of Election Law § 3-212 (2) would impair the statutory and constitutional scheme set forth by Election Law § 3-300 and New York Constitution, article II, § 8. The threshold for suit, however, should not be easy to meet. Even when justified by a compelling constitutional purpose, I think it unacceptable to cast aside an explicit legislative command based on a claim so bereft of substance as the one before us. In short, Graziano lacks standing.

As this Court observed in Society of Plastics Indus., Inc. v County of Suffolk (77 NY2d 761, 772-773 [1991]), we require the party seeking review to allege an injury in fact to ensure that it “has some concrete interest in prosecuting the action which casts the dispute ‘in a form traditionally capable of judicial resolution.’ The requirement of injury in fact for standing purposes is closely aligned with our policy not to render advisory opinions” (citations omitted). This interest becomes all the more pressing when, as here, we look beyond the plain reading of a duly enacted statute to find an implied cause of action in our State Constitution. In recognizing capacity to remedy an unconstitutional disequilibrium on a board of elections, we should not relax our well-established standing jurisprudence.

The majority insists that we fail both to assume the truth of Graziano’s allegations and give him the benefit of every favorable inference. On the contrary, no amount of assumption and inference can validate inadequate pleadings. Although it has industriously mined the pleadings, the majority has not identified a single claim by Graziano of an injury to the Republicans arising out of imbalance on the Board. We have plumbed the record for any and every inferences favorable to Graziano, and found it wanting.

In his effort to rebut the County’s argument that he lacked standing, Graziano fails to claim that the County’s hiring policies diminished his political party’s representation on the Board. In his petition, Graziano genetically maintains that the County has “usurped the Board’s authority ... to maintain a proper balance of staff positions between the two major parties.” Elsewhere, he argues that the County’s policies “caused an imbalance in the ‘equal representation of the two political parties’ that the Board is constitutionally required to maintain in its composition.”

These conclusory arguments do not amount to a claim of injury to the Republicans. Graziano’s submissions include a litany of allegations concerning delays and obstructions in the hiring of Board staff, which, he maintains, resulted in political imbalances on the Board. But the claims he articulates—and at great length—fall far short of the mark. Alleging repeated delays in authorizing new hires does not spell out a political disequilibrium detrimental to one’s own political party. In and of itself, a delay does not disserve one political party more than the other. Further, claiming county interference with Board hiring is different from alleging an injury unique to Republicans on the Board. Graziano includes a chart detailing the effects of a hiring freeze, but a hiring freeze and even a generalized workforce shortage do not constitute harm to his political party. Likewise, an allegation of interim shortages that alternately affect both parties does not state a claim that the County’s practices have placed Graziano’s party at a consequential disadvantage. Rather, such impairments suggest an injury to the Board as a whole.

Graziano supplies this Court with a catalogue of alleged grievances that, as he presents them in his pleadings, do not address the issue of unequal Republican representation. I could accept as given that the County obstructed Board hiring. But a claim of county interference is readily distinguishable from a suit claiming that county interference uniquely disadvantaged Graziano’s political party. To rebut the County’s standing challenge, Graziano needed only to jump the shortest of pleadings hurdles, with a straightforward complaint alleging injury unique to his party. He does not.

When all is said and done, Graziano offers nothing more than the hollow assertion that the County’s decision to block the appointment of two election specialists—one Democratic and one Republican—upsets the political equilibrium on the Board staff. On its face, however, these two vacancies reflect equal representation (or equal diminution), as opposed to an impermissible partisan tilt against Graziano’s party. Graziano thus advances his claim of partisan imbalance without even suggesting, let alone alleging, that his own party was the least bit shortchanged. Having failed to allege a legally cognizable injury to his party, Graziano lacks standing and his claim was properly dismissed.

I therefore respectfully dissent in part, and would affirm the order of the Appellate Division dismissing the petition.

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

Order modified, etc.