text:
    [823 NE2d 827, 790 NYS2d 421]
    The People of the State of New York, Respondent, v Peter Parris, Appellant. The People of the State of New York, Respondent, v Donnell Hofler, Appellant.
    Argued November 18, 2004;
    decided December 21, 2004

      POINTS OF COUNSEL

      Kostelanetz & Fink, LLP, New York City (Christopher M. Ferguson of counsel), and Office of the Appellate Defender (Richard

      M. Greenberg and Sara Gurwitch of counsel) for appellant in the first above-entitled action.
    I. Where the State of New York has not provided Mr. Parris with the transcript of a vital portion of the trial proceedings that is virtually impossible to reconstruct—the entirety of jury voir dire—his conviction should be reversed and a new trial ordered. (Griffin v Illinois, 351 US 12; People v Yavru-Sakuk, 98 NY2d 56; People v Rivera, 39 NY2d 519; People v Mealer, 57 NY2d 214; Mayer v City of Chicago, 404 US 189; People v Harrison, 85 NY2d 794; Hopt v Utah, 110 US 574; United States v White, 980 F2d 836; Gomez v United States, 490 US 858; People v Velasquez, 1 NY3d 44.) II. At a bare minimum, Mr. Parris is entitled to a reconstruction hearing in order to attempt to recreate jury voir dire, as well as the Sandoval and speedy trial proceedings below. (People v Santiago, 158 AD2d 252; People v Marquez, 2 AD3d 343; People v Hofler, 2 AD3d 176; People v Dokes, 79 NY2d 656; People v Oglesby, 137 AD2d 840; People v Monclavo, 87 NY2d 1029; People v Michalek, 82 NY2d 906; People v Brown, 114 AD2d 418; People v Mendez, 63 AD2d 69; People v Mealer, 57 NY2d 214.)

      Robert M. Morgenthau, District Attorney, New York City (Eleanor J. Ostrow and Hilary Hassler of counsel), for respondent in the first above-entitled action.
    The Appellate Division correctly determined that defendant was not entitled to a reversal and new trial, or a reconstruction hearing, where he made no showing at all that he was prejudiced by the unavailability of a complete transcript on appeal, or even that there were appealable issues in the untranscribed portions of the record. (People v Rivera, 39 NY2d 519; People v Mealer, 57 NY2d 214, 460 US 1024; People v Harrison, 85 NY2d 794; People v Richetti, 302 NY 290; People v Glass, 43 NY2d 283; People v Velasquez, 1 NY3d 44; People v Jackson, 98 NY2d 555; People v Yavru-Sakuk, 98 NY2d 56; People v Mendoza, 82 NY2d 415; People v Gruden, 42 NY2d 214.)

      Office of the Appellate Defender, New York City (Sara Gurwitch, Richard M. Greenberg and Salina M. Kanai of counsel), for appellant in the second above-entitled action.
    Where the State of New York has failed to provide Donnell Hofler an adequate record for appeal, Mr. Hofler’s fundamental right to meaningful appellate review has been fatally compromised. (People v Montgomery, 24 NY2d 130; People v Harrison, 85 NY2d 794; People v Cameron, 219 AD2d 662; People v Marquez, 2 AD3d 343, 2 NY3d 763; People v Parris, 1 AD3d 134, 2 NY3d 764; People v Council, 162 AD2d 365; People v Gonzalez, 110 AD2d 592; People v Lopez, 97 AD2d 5; People v Yavru-Sakuk, 98 NY2d 56; Mayer v City of Chicago, 404 US 189.)

      Robert M. Morgenthau, District Attorney, New York City (Eleanor J. Ostrow and Hilary Hassler of counsel), for respondent in the second above-entitled action.
    The unavailability of the guilty plea minutes does not entitle defendant to a reversal of the judgment or a reconstruction hearing. (People v Hall, 200 AD2d 474; People v Parris, 1 AD3d 134, 2 NY3d 764; People v Rivera, 39 NY2d 519; People v Mealer, 57 NY2d 214, 460 US 1024; People v Harrison, 85 NY2d 794; People v Richetti, 302 NY 290; People v Glass, 43 NY2d 283; People v Bell, 36 AD2d 406, 29 NY2d 882; People v Alexander, 97 NY2d 482; People v Taylor, 65 NY2d 1.)
   OPINION OF THE COURT

R.S. Smith, J.

In both of these cases, the reporter’s minutes of some proceedings were lost, and so never transcribed. Each defendant asks us to reverse his conviction on that ground. Each also asks that, if we do not grant reversal, we order a reconstruction hearing at which the events of the untranscribed proceedings would be recreated, as far as possible, from the memories of the participants and any surviving records.

We have previously held that a loss of reporter’s minutes is rarely sufficient reason in itself for reversing a conviction, and we reject that remedy in both of these cases. As to defendants’ requests for an alternative remedy, we hold that, where a significant portion of the minutes has been lost: (1) a reconstruction hearing should normally be available for a defendant appealing his conviction after trial, if the defendant has acted with reasonable diligence to mitigate the harm done by the mishap; but (2) a defendant who has pleaded guilty is entitled to a reconstruction hearing only where he can identify a ground for appeal that is based on something that occurred during the untranscribed proceeding.

These rules require an affirmance in both of these cases. Defendant in People v Parris, who was convicted after trial, did not make reasonable efforts to mitigate any harm resulting from the loss of the minutes. Defendant in People v Hofler, who pleaded guilty, has identified no issue to which the missing minutes are relevant.

Facts and Procedural History

A. People v Parris

Peter Parris was convicted of burglary and other charges after a jury trial in May 1998, and was sentenced on July 8, 1998. He filed a timely notice of appeal, but the prosecution of the appeal was long delayed. When the record on appeal was finally filed in the Appellate Division on May 8, 2001, it contained an affidavit from a court reporter saying that she could not locate her notes for proceedings held on April 30 and May 4, 1998.

A worksheet prepared in Supreme Court shows that on April 30, 1998 the court denied Parris’s motion to dismiss the indictment pursuant to CPL 30.30 and heard his motion under People v Sandoval (34 NY2d 371 [1974]), and that on May 4, 1998 a jury was selected and sworn. Parris was or should have been aware, no later than May of 2001, that the minutes of these proceedings were missing.

There is no indication that Parris reacted to this information in any way until he filed his brief in the Appellate Division some 18 months later, on November 12, 2002. Point one of the brief argued that his conviction should be reversed, or a reconstruction hearing ordered, because the minutes had been lost. On February 21, 2003, the prosecution moved to have the appeal removed from the Appellate Division calendar “until such time as the defendant either moves for reconstruction of the court file or stipulates that he cannot make the showing necessary to obtain one.” Parris’s counsel filed an affirmation in opposition to the motion, arguing that the prosecution, not the defense, should bear the burden of providing an adequate record. The Appellate Division denied the motion “without prejudice to the People raising the argument in their respondent’s brief on the appeal.”

Later, the Appellate Division affirmed Parris’s conviction, saying that he “has not established that he is entitled to either reversal of his conviction or a reconstruction hearing, since he has not shown that any appealable issue may exist with respect to those proceedings.” (1 AD3d 134, 134 [2003].) We affirm on grounds different from those stated by the Appellate Division.

B. People v Hofler

Donnell Hofler pleaded guilty on September 26, 1996 to charges of criminal possession of a weapon, attempted robbery and bail jumping. He was sentenced on October 22, 1996; the sentencing minutes contain no motion to withdraw the plea, and. no indication that the plea proceedings were defective. Hofler filed a timely notice of appeal, but did not perfect the appeal for several years. An affidavit of a court reporter dated August 1, 2002 says that he is unable to locate his notes of the September 26, 1996 proceeding.

Hofler’s only argument in his Appellate Division brief was that the loss of the minutes entitled him to either a reversal or a reconstruction hearing. The Appellate Division affirmed, relying on “the presumption of regularity attaching to judicial proceedings.” (2 AD3d 176 [2003].) We agree with the Appellate Division, and affirm.

Discussion

On these facts, neither appellant is entitled to either form of relief he seeks—reversal of his conviction, or a reconstruction hearing.

A. Reversal

We held in People v Glass (43 NY2d 283 [1977]), and hold again now, that the loss of minutes does not by itself require the reversal of a conviction. To overcome the presumption of regularity, a defendant must show not only that minutes are missing, but also “that there were inadequate means from which it could be determined whether appealable and reviewable issues were present” (id. at 287). In Glass, we relied on People v Rivera (39 NY2d 519, 523 [1976]), where we said:

“[W]hile a defendant should have as fair an appeal as possible, and while, if the use of available minutes would aid in assuring it, he is entitled to have their assistance, unless they have become unavailable because of any active fault on the part of the People, it does not necessarily follow from the fact that their absence compels resort to a less perfect record, that the right to appeal must be deemed to be frustrated. For, in this imperfect world, the right of a defendant to a fair appeal, or for that matter a fair trial, does not necessarily guarantee him a perfect trial or a perfect appeal.”

Though we implied in Rivera (as we later held in Glass) that the absence of minutes would not normally justify reversal, we held reversal to be proper in Rivera-, it is, so far, the only case in which we have held that the inadvertent loss of stenographic minutes caused the defendant such severe prejudice that reversal was warranted. There, the proceedings as to which no minutes could be found had occurred 20 years before, and virtually every possible source for reconstructing the events had vanished: the judge had died; the prosecutor’s memory had been impaired by a stroke; Rivera’s court appointed counsel, since disbarred, could not be located; and Rivera himself suffered from “a complete retrograde amnesia of the trial” (39 NY2d at 524). We held that “[u]nder these unusual circumstances, the presumption of regularity which ordinarily attaches to judicial proceedings . . . does not avail the People . . . .” (Id. at 524-525.)

Neither Parris nor Hofler can make a showing of prejudice remotely comparable to Rivera’s. Parris argues that there is prejudice not because all possible sources of reconstruction have disappeared, but because the sources are too numerous. He suggests that voir dire would be “nearly impossible to recreate . . . without the assistance of . . . the entire pool of prospective jurors.” We disagree. A determination of whether any significant issues arose during the voir dire and were preserved for appellate review should be possible without any such massive inquiry. Parris argues that no hearing could recreate jury selection in all its details, but he has not shown that, if he had acted diligently, an adequate reconstruction of those proceedings could not have been achieved. We repeat our remark in Rivera that, where the absence of minutes results from inadvertence, “resort to a less perfect record” is not an infringement of a criminal defendant’s rights.

Both Parris and Hofler claim prejudice resulting from the fact that, in each case, the judge who presided at the untranscribed proceedings no longer sits in Supreme Court. Neither of them can show, however, that it would be impossible to obtain information about those proceedings from the judge, or that the proceedings could not be reconstructed with information from other sources.

We therefore conclude that neither Parris nor Hofler is entitled to reversal of his conviction.

B. Reconstruction Hearing

We mentioned in Rivera the possibility of remedying the loss of minutes through “a hearing to determine . . . the availability of means other than a transcript for the presentation of the appealable and reviewable issues” (39 NY2d at 523). We added that “[s]uch a hearing may also be directed to determining . . . the adequacy of the substitute means and the presence of the issues themselves, if any” (id.). We made similar observations in Glass (43 NY2d at 286) and in People v Velasquez (1 NY3d 44, 49 [2003]), and in still other cases we have relied on the result of a reconstruction hearing (People v Mealer, 57 NY2d 214 [1982]) and have ordered that one take place (People v Michalek, 82 NY2d 906 [1994]). We have never stated a rule, however, for deciding when a reconstruction hearing is required.

The prosecution argues and the Appellate Division held, in both Parris and Hofler, that no such hearing should be required unless the defendant can show that some appealable issue arose during the untranscribed proceedings. "Where no such showing is made, the prosecution urges, the presumption of regularity of judicial proceedings should apply. We find this rule too harsh, however, as it applies to defendants who, like Parris, are appealing a conviction after trial. It is the routine procedure, in such cases, for appellate counsel to read the record looking for appellate issues, and it is not unusual for such a reading to unearth issues, sometimes meritorious ones, that appellate counsel would not otherwise have known about. Thus, where a significant part of the minutes has been lost, a defendant appealing after trial is, through no fault of his own, subject to a more than trivial disadvantage. It should not burden the trial courts excessively to provide defendants, in those relatively few cases, the opportunity to remedy that disadvantage, to the extent that a reconstruction hearing can do so.

A defendant who wants a reconstruction hearing, however, should be diligent in maximizing the possibility that such a hearing can accomplish its purpose. That means, as a minimum, that defendant should move for a reconstruction hearing promptly after learning that the minutes have been lost. A defendant should also pursue promptly whatever other means are available to increase the likelihood that proceedings can effectively be reconstructed. This might well include, in a typical case, contacting defendant’s trial counsel, the prosecutor and the judge, to jog their recollections and to ask that they preserve whatever notes or other records of the proceedings might exist; and also to ask that defendant’s trial counsel furnish appellate counsel, without a formal hearing, the benefit of his or her notes or recollection. A defendant who does not proceed diligently is open to the suspicion that he thinks the likelihood of really finding significant appellate issues remote—and would prefer failure in reconstructing the proceedings to success, hoping to claim prejudice when reconstruction proves impossible.

Parris’s lack of diligence here certainly leaves him open to that suspicion. From the time, more than 3V2 years ago, when he learned the minutes were missing he has not behaved in the least like someone eager to obtain the best record possible of what happened at the untranscribed proceedings. For 18 months, he made no efforts to obtain a reconstruction hearing, and at the end of that time he did not make a motion for an immediate hearing, but only requested one as an alternative remedy in his brief. When the prosecution made a motion that might have expedited a reconstruction hearing, Parris opposed the motion, successfully.

In our view, fairness does not require providing a reconstruction hearing to a defendant whose conduct does not evidence a good faith purpose to obtain prompt and effective reconstruction. We therefore reject Parris’s claim that he is entitled to a reconstruction hearing.

In Hofler, we conclude that it is unnecessary to inquire into defendant’s diligence in seeking a reconstruction hearing. The situation of a defendant, like Hofler, who has pleaded guilty is different from that of one who has been convicted after trial. In the latter case, the normal course of events is an appeal, in which appellate counsel scrutinizes the record for reversible error. But a defendant who has pleaded guilty has been convicted with his own consent. His plea generally “marks the end of a criminal case, not a gateway to further litigation” (People v Taylor, 65 NY2d 1, 5 [1985]). A defendant who pleads guilty forfeits the right to obtain review of many flaws in the proceedings (People v Lynn, 28 NY2d 196, 201-202 [1971]; see also Boykin v Alabama, 395 US 238, 243 [1969]), and even those claims that are not forfeited cannot ordinarily be raised on appeal unless they are preserved by a motion in the trial court to withdraw the plea (People v Lopez, 71 NY2d 662 [1988]). When such a motion is made, the defendant must assert some ground for it, and where minutes relevant to that ground have been lost, a reconstruction hearing may be appropriate. But only very rarely does a defendant who has pleaded guilty have a valid ground for appeal that comes to light only when his lawyer reviews the minutes of his plea or sentence.

We therefore agree with the Appellate Division’s decision in People v Bell (36 AD2d 406, 408 [2d Dept 1971], affd without op 29 NY2d 882 [1972]), holding that a defendant who has pleaded guilty, in order to obtain a reconstruction hearing, “must set forth appealable grounds, i.e., the nature of those issues which would have been raised on appeal had the plea and sentence minutes been available.” As the Appellate Division explained in Bell, in such a case the presumption of regularity of judicial proceedings is reinforced by another presumption—“that by pleading guilty a ‘defendant has neither reason nor desire to prosecute an appeal’ (People v. Lynn, 28 N Y 2d 196, 202)” (id.). Since Hofler has not identified any appealable issues, we conclude that he is not entitled to a reconstruction hearing.

Accordingly, in each case, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges G.B. Smith, Cipajrick, Rosenblatt, Graffeo and Read concur.

In each case: Order affirmed.


source: Caselaw Access Project

author: G.B. Smith, J.

license: Public Domain

text:
    [823 NE2d 1265, 790 NYS2d 619]
    In the Matter of Madison-Oneida Board of Cooperative Educational Services, Appellant, v Richard P. Mills, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued November 18, 2004;
    decided December 21, 2004

      POINTS OF COUNSEL

      Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., East Syracuse (Henry F. Sobota and Craig M. Atlas of counsel), for appellant.
    I. A teaching assistant is not a “teacher” within the meaning of section 3013 (2) of the Education Law. School districts and Boards of Cooperative Educational Services are therefore not statutorily required to lay off the teaching assistants with the least overall seniority first, regardless of their qualifications in particular areas. (Matter of Anderson v Cortland City School Dist., 147 Misc 2d 7, 171 AD2d 1017; Matter of Board of Educ. of N. Tonawanda City School Dist. v Mills, 263 AD2d 574, 94 NY2d 751; Matter of Fink v Avon Cent. School Dist., 207 AD2d 973, 85 NY2d 804; Matter of Oleksa v Board of Educ. of E. Rockaway Union Free School Dist., 199 AD2d 270; Matter of Robinson v Bruni, 193 AD2d 1072; Matter of McCulloch v New York State Ethics Commn., 285 AD2d 236; Matter of Volk v Board of Educ. of City School Dist. of Rochester, 83 NY2d 930; Matter of Schlick v Board of Educ. of Mamaroneck Union Free School Dist, 227 AD2d 407; Matter of Board of Educ. of Beacon City School Dist. v Story, 212 AD2d 76.) II. Teaching assistants can have tenure rights without also having the right to be laid off on the basis of seniority. (Ricca v Board of Educ. of City School Dist. of City of N.Y., 47 NY2d 385; Matter of Baer v Nyquist, 34 NY2d 291; Matter of Zurlo v Ambach, 75 AD2d 662, 53 NY2d 1035; Matter of Weimer v Board of Educ. of Smithtown Cent. School Dist, No. 1, 74 AD2d 574; Matter of Ryan v Ambach, 71 AD2d 719.) III. The court need not give deference to the Commissioner of Education’s interpretation of section 3013 of the Education Law. (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Cario v Sobol, 157 AD2d 172; Matter of Gruber [New York City Dept, of Personnel—Sweeney], 89 NY2d 225; Matter of Bojarczuk v Mills, 98 NY2d 663; Matter of Board of Educ. of N. Tonawanda City School Dist. v Mills, 263 AD2d 574, 94 NY2d 751.)

      Eliot Spitzer, Attorney General, Albany (Evelyn M. Tenenbaum, Caitlin J. Halligan, Daniel Smirlock and Andrea Oser of counsel), for Richard P. Mills, respondent.
    I. The Commissioner of Education’s interpretation of “teacher” in section 3013 (2) of the Education Law is supported by other provisions of the Education Law and by regulations and case law interpreting them. (Matter of Board of Educ. of Beacon City School Dist. v Story, 212 AD2d 76; Steele v Board of Educ. of City of N.Y., 40 NY2d 456; Matter of Volk v Board of Educ. of City School Dist. of Rochester, 83 NY2d 930; Matter of Deichman v Board of Educ. of City School Dist. of City of Buffalo, 74 AD2d 995; Matter of Schlick v Board of Educ. of Mamaroneck Union Free School Dist., 227 AD2d 407; Matter of Connell v Board of Educ. of City School Dist. of City of Utica, 106 AD2d 866; Board of Educ. of Portville Cent. School v Portville Faculty Assn., 96 AD2d 739; Greenspan v Dutchess County Bd. of Coop. Educ. Servs., 96 AD2d 1028; Matter of Brown v Board of Educ., MorrisvilleEaton Cent. School Dist., 211 AD2d 887; Matter of Castle v Board of Coop. Educ. Servs. of Putnam & Westchester Counties, 269 AD2d 394.) II. The history of section 3013 (2) of the Education Law supports the Commissioner of Education’s interpretation of the statute. (Matter of Silver v Board of Educ., 46 AD2d 427; Matter of Anderson v Cortland City School Dist., 147 Misc 2d 7, 171 AD2d 1017; Matter of Robinson v Bruni, 193 AD2d 1072; Matter of Oleksa v Board of Educ. of E. Rockaway Union Free School Dist., 199 AD2d 270.) III. The Commissioner of Education’s determination is supported by public policy considerations. (Matter of Moritz v Board of Educ. of Gowanda Cent. School Dist., 60 AD2d 161; Steele v Board of Educ. of City of N.Y., 40 NY2d 456; Ricca v Board of Educ. of City School Dist. of City of N.Y., 47 NY2d 385; Matter of Baer v Nyquist, 34 NY2d 291.) IV The Commissioner of Education’s determination is entitled to deference. (Town of Lysander v Hafner, 96 NY2d 558; Matter of Gruber [New York City Dept, of Personnel—Sweeney], 89 NY2d 225; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Davis v Mills, 98 NY2d 120; Steele v Board of Educ. of City of N.Y., 40 NY2d 456; Matter of Board of Educ. of N. Tonawanda City School Dist. v Mills, 263 AD2d 574.)

      Kevin H. Harren, Latham, and James R. Sandner for Lorraine Krason and others, respondents.
    The Appellate Division and the Commissioner of Education correctly held that teaching assistants are teachers within the meaning of Education Law § 3013. (Ricca v Board of Educ., 47 NY2d 385; Matter of Baer v Nyquist, 34 NY2d 291; Steele v Board of Educ. of City of N.Y., 40 NY2d 456; Matter of Connell v Board of Educ. of City School Dist. of City of Utica, 106 AD2d 866; Board of Educ. of Portville Cent. School v Portville Faculty Assn., 96 AD2d 739; Matter of Castle v Board of Coop. Educ. Servs. of Putnam & Westchester Counties, 269 AD2d 394; Matter of Schlick v Board of Educ. of Mamaroneck Union Free School Dist, 227 AD2d 407; Matter of Volk v Board of Educ. of City School Dist. of Rochester, 83 NY2d 930; Matter of Brown v Board of Educ., Morrisville-Eaton Cent. School Dist., 211 AD2d 887; Matter of Deichman v Board of Educ. of City School Dist. of City of Buffalo, 74 AD2d 995.)

      Jay Worona, Latham, and John A. Miller for New York State School Boards Association, Inc., amicus curiae.
    I. The statutory scheme that comprises article 61 of the Education Law does not support treating teaching assistants as teachers for layoff purposes. (Matter of Anderson v Cortland City School Dist., 147 Misc 2d 7, 171 AD2d 1017; Matter of Volk v Board of Educ. of City School Dist. of Rochester, 83 NY2d 930; Steele v Board of Educ. of City of N.Y., 40 NY2d 456; Matter of Schlick v Board of Educ. of Mamaroneck Union Free School Dist., 227 AD2d 407.) II. Requiring school districts and Boards of Cooperative Educational Services (BOCES) to lay off teaching assistants based strictly on their seniority contravenes public policy because it deprives school districts of the ability to retain the services of teaching assistants in positions where their knowledge and skills will best serve students. (Matter of Steinberg v Steinberg, 18 NY2d 492; Matter of Young v Board of Educ., 35 NY2d 31; Matter of Weimer v Board of Educ., 76 AD2d 1046; Board of Educ. v Niagara Wheatfield Teachers Assn., 54 AD2d 281.)
   OPINION OF THE COURT

G.B. Smith, J.

At issue on this appeal is whether teaching assistants (TAs) fall within the purview of Education Law § 3013 (2) for the purpose of determining layoffs. We conclude that they do, and we affirm the order of the Appellate Division.

I

The Board of Cooperative Educational Services for the Madison-Oneida school districts (BOCES) laid-off nine TAs on June 1, 2001, effective June 30, 2001. The layoffs were not in accordance with the seniority system within the tenure track “teaching assistant” pursuant to Education Law § 3013 (2). Five of the nine TAs were senior to teaching assistants who did not receive layoff notices. Three of the nine TAs were the least senior within their respective areas and they did not appeal the layoff decisions. One person was rehired prior to the start of the 2001-2002 school year.

On September 24, 2001, the five named TAs filed a CPLR article 78 petition challenging the layoffs. Supreme Court dismissed the petition, retaining primary jurisdiction but allowing the Commissioner of Education to determine whether or not the teaching assistants were included within the purposes of Education Law § 3013 (2) and, consequently, whether the TAs should have been dismissed based on seniority.

Following Supreme Court’s decision, in November 2001, the TAs appealed to the Commissioner for a determination that the TAs were teachers pursuant to Education Law § 3013 (2). In March 2002, the Commissioner rejected BOCES’s arguments that the TAs were similar to vocational teachers because there were no specific educational, certification, or licensure requirements to be a TA. The Commissioner annulled BOCES’s determination that the teaching assistants were not teachers, and did not have to be fired according to seniority, and reinstated TAs to full-time teaching positions with back pay and benefits, effective July 1, 2001. The Commissioner found that “teaching assistants are protected by Education Law § 3013 (2).” Further, the Commissioner determined that the plain meaning of 8 NYCRR 30.8 placed “all teaching assistants in the same special subject tenure area of teaching assistant [which] directly contradicts the argument that teaching assistants hold tenure” within a specific subject area of teaching assistant.

In July 2002, BOCES commenced an article 78 proceeding to have the Commissioner’s determination annulled. In December 2002, Supreme Court annulled the Commissioner’s determination, observing that Education Law §§ 3014-a and 3014-b had been amended in 1998 to include teaching assistants and teacher aides but that Education Law § 3013 had not been so amended. The Supreme Court stated, “An interpretation of the statute [§ 3013 (2)3 to include teachers assistant [sic] is inconsistent with the plain wording of the statute and would serve to preempt the function of the State Legislature.”

In December 2003, Appellate Division reversed and found that:

“Education Law § 2510 (2), § 2585 (3) and § 3013 (2) are nearly identical statutes that provide lay-off seniority protection to tenured teachers employed by small city school districts, large city school districts and other boards of education, including boards of cooperative educational services. Each of these sections states that, when a position is abolished, ‘the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued’ .... Significantly, we have noted that ‘teacher’ has different meanings in different contexts in the Education Law ....
“[T]he courts of this state have applied the term ‘teacher’ to include other professional educators in interpreting Education Law § 2510 (2), § 2585 (3) and § 3601-a (27) (a) (1)” (2 AD3d 1240, 1241 [2003] [citations omitted]).

Further, Appellate Division determined, “It would be anomalous to construe Education Law § 3013 (2) to deny TAs layoff seniority at the time their positions are abolished while granting them recall seniority for reinstatement to similar positions after their positions are abolished” (id. at 1242 [emphasis in original]). This Court granted leave to appeal.

II

Pursuant to Education Law § 1950, BOCES provides occupational programs for students within a specific school district. The programs employ TAs to supplement the services of classroom teachers (see 8 NYCRR 80-5.6 [b] [1] [ii] [b]). TAs are in tenure-based positions pursuant to parallel statutes (see Education Law §§ 3012, 3014. Their credential and licensure requirements are outlined in 8 NYCRR 80-5.6.

The five laid-off TAs were in the areas of special education, career exploration, community based occupation counseling, and pre-kindergarten. Effective June 30, 2001, the five teaching assistants on this appeal were laid off due to declining enrollment in their respective programs. The TAs were not laid off according to seniority but rather based upon the needs of BOCES. BOCES argues that teaching assistants are not teachers within the meaning of Education Law § 3013 (2), and thus, are not protected by the same statutory tenure requirements. Further, BOCES argues that teaching assistants are different from other professional educators and that TAs can still have tenure protection without inclusion in section 3013 (2).

The TAs counter that they are teachers within the meaning of Education Law § 3013 (2) and § 2510 (2), and argue that the Commissioner of Education of New York State (the Commissioner) should be given deference because of “the special knowledge and expertise of the Commissioner.” The TAs argue for a broad definition of the word “teacher” which they support with case law (see Matter of Volk v Board of Educ. of City School Dist. of Rochester, 83 NY2d 930, 932 [1994] [tenure statute, Education Law § 2585 (3), term teacher applied to school administrator/supervisor]; Steele v Board of Educ. of City of N.Y., 40 NY2d 456, 463 [1976] [teacher applied to elementary school guidance counselors under section 2585 (3)]).

First, as noted by the Commissioner, the duties of a teaching assistant are to aid those teachers who are trained to teach specific subjects to students. Pursuant to the Rules of the Board of Regents, professional educators may serve in the “special subject tenure area of teaching assistant” (8 NYCRR 30.8 [d]). Thus, all teaching assistants are part of the same subject area.

In order to have an internally consistent interpretation between tenure track statutes, statutes of appointment (§ 3012 [1] [a]; § 3014 [1]) must have a parallel interpretation with statutes of abolition (§§ 2510, 3013 [2]; see also Education Law §§ 3020, 3020-a [pretermination procedures]). The legislative history of section 3013 (2) supports the conclusion that persons hired by a board of education or a BOCES should be laid off according to seniority. Thus, for layoff purposes, TAs fall within the ambit of section 3013 (2). Teaching assistants, which is a separate tenure area from teachers, should not have their abolition rights judged by whether or not they meet the qualifications and credentials of teachers (see 8 NYCRR 80-5.6 [b]). Their separate credentials have been accorded tenure, and the TAs should have due process rights within that system. It is the due process rights of professional educators, not just those of teachers, which the Legislature sought to protect in the abolition of position or office pursuant to section 3013 (2).

Ill

At times deference is accorded to an administrative agency because of its expertise in a given area (see Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]; Matter of Davis v Mills, 98 NY2d 120, 125 [2002] [“It is for the Commissioner in the first instance and not for the courts, to establish and apply criteria to govern the selection and retention of qualified educators and staff’]; Matter of Board of Educ. of City School Dist. of City of Oneida v Nyquist, 45 NY2d 975, 976 [1978] [finding that dissent’s reasoning at the Appellate Division, that the Commissioner’s determination that a teacher had acquired tenure was due deference, was correct]). However, in the instant case, this Court is faced with the interpretation of statutes and pure questions of law and no deference is accorded the agency’s determination (see Kurcsics, 49 NY2d at 459; Matter of Gruber [New York City Dept, of Personnel—Sweeney], 89 NY2d 225, 231 [1996]). Teaching assistants are professional educators for the purposes of the tenure track system as outlined in 8 NYCRR part 30 (see 8 NYCRR 30.1 [e]; 30.8 [d]). It makes no difference whether the teaching assistant is part of the board of education or board of cooperative educational services (see id.). Further, for purposes of abolishing positions, the term “teacher” includes teaching assistants.

Education Law § 3012 (1) (a) and § 3014 (1), which are tenure sections of the Education Law, address appointments of “[t]eachers and all other members of the teaching” staff (see Education Law § 3012 [1] [a]; § 3014 [1]). The laws are not intended to allow distinctions which only benefit the school system, and ultimately harm the teachers (see Ricca v Board of Educ. of City School Dist. of City of N.Y., 47 NY2d 385, 391 [1979] [“The tenure system is not an arbitrary mechanism designed to allow a school board to readily evade its mandate by the creation of technical obstacles on a qualified teacher’s trail to tenure”], citing Matter of Baer v Nyquist, 34 NY2d 291 [1974]).

Education Law § 3013 (2) and § 2510 (2) address the abolition of a position or layoff (see Education Law § 3013 [2]; § 2510 [2]). In both statutes, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” The phrase “services of the teacher” is to be distinguished from services of supervisory and administrative staff, rather than from those of a teaching assistant or teacher aide (see 8 NYCRR part 80). If in fact it was the intent of the Legislature to exclude teaching assistants from the tenure track system for purposes of abolition, then there would be no protection from layoffs for teaching assistants who gain tenure in that position (see Steele, 40 NY2d at 463 [Legislature created various tenure areas under 8 NYCRR part 30]). Because such protection appears to have been contemplated in other relevant statutes, it is probable that the Legislature intended to include teaching assistants in Education Law § 3013 (2) for purposes of layoffs (see 1992 NY Assembly Bill A 11062-Á; see also 1997 NY Senate Bill S 3426-C [under sections 3014-a and 3014-b, extending benefit in rehiring not just to teachers but to teaching assistants]).

IV

Section IV of the Personnel Policy on Tenure addresses seniority for teachers, teaching assistants, coordinator, and director, etc. The Policy states in pertinent part: “Seniority for purposes of abolition of positions shall be determined by length of service within a tenure area.” From its Personnel Policy, the Madison-Oneida BOCES contemplated inclusion of teaching assistants into the tenure system and intended that the system be based on a formula for seniority (see Steele, 40 NY2d at 463 [Court upholds seniority formula applied to elementary school guidance counselors]). BOCES, in the instant action, appears to be going against its own policies for the purposes of dismissing teaching assistants.

V

Previous case law supports the use of the term “teacher” for positions other than an actual classroom teacher (see Matter of Volk, 83 NY2d at 932 [applying Education Law § 2585 (3)* to school administrator/supervisor requiring that the “teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued”]; Steele, 40 NY2d at 463 [applying Education Law § 2585 (3) to elementary school guidance counselors]). Thus, applying the term “teacher” to teaching assistants would not create precedent in terms of using the term for persons other than teachers. In fact, contrary to BOCES’s view, applying the term teacher to a TA would be a logical extension of the term.

BOCES’s hands will not be tied because they are unable to abolish positions in areas where TAs are no longer needed (see Matter of Davis, 98 NY2d at 124-125 [former school psychologist not entitled to position as elementary school counselor which required different certifications]; Matter of Young v Board of Educ. of Cent. School Dist. No. 6, 35 NY2d 31, 34 [1974] [no violation of tenure system when position of attendance teacher was abolished and duties transferred to those of assistant principal and principal]; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 777 [1976] [school board required to exercise authority in making tenure decisions]). However, applying Education Law § 3013 (2) to teaching assistants will prevent BOCES from acting in an arbitrary manner in abolishing positions within the subtenure area of teaching assistant (see Matter of Baer, 34 NY2d at 295, explained by Matter of New York City Dept, of Envtl. Protection v New York City Civ. Serv. Commn., 78 NY2d 318 [1991] [“Radical restructuring of tenure areas, compatible with the purpose of the tenure statutes, should not be free of controlling regulations or express standards propounded by the Board of Regents or enacted by the Legislature”]).

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.

      . BOCES appealed the designation of teaching assistant as a tenure track grouping at the Appellate Division, Third Department. The Appellate Division found that teaching assistant is a tenure track designation pursuant to 8 NYCRR 30.8 (d). However, BOCES has not appealed the tenure track areas of teaching assistants to this Court.

      . Education Law § 3013 (2)—“Whenever a trustee, board of trustee[s], board of education or board of cooperative educational services abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.”

      . 8 NYCRR 80-5.6 (b) (1) (ii) (b) (in pertinent part)—“Teaching assistants who hold the pre-professional teaching assistant certificate shall have the same, scope of practice as other teaching assistants, in accordance with the duties prescribed in clause (a) of this subparagraph. Within that scope of practice, teaching assistants holding a pre-professional teaching assistant certificate may, at the discretion of the employing district, and while under the general supervision of a teacher, perform such duties as . . . .”

      . Education Law § 3012 (1) (a) (in pertinent part)—“Teachers and all other members of the teaching staff of school districts, including common school districts and/or school districts employing fewer than eight teachers, other than city school districts, shall be appointed by the board of education, or the trustees of common school districts, upon the recommendation of the superintendent of schools, for a probationary period of three years, except that in the case of the teacher who has rendered satisfactory service as a regular substitute for a period of two years or as a seasonally licensed per session teacher of swimming in day schools who has served in that capacity for a period of two years and has been appointed to teach the same subject in day schools, on an annual salary, the probationary period shall be limited to one year; provided, however, that in the case of a teacher who has been appointed on tenure in another school district within the state, the school district where currently employed, or a board of cooperative educational services . . . .”

      . Education Law § 3014 (1) (in pertinent part)—“Administrative assistants, supervisors, teachers and all other members of the teaching and supervising staff of the board of cooperative educational services shall be appointed by a majority vote of the board of cooperative educational services upon the recommendation of the district superintendent of schools for a probationary period of not to exceed three years; provided, however, that in the case of a teacher who has been appointed on tenure in a school district within the state, the board of cooperative educational services where currently employed, or another board of cooperative educational services, and who was not dismissed from such district or board as a result of charges brought pursuant to subdivision one of section three thousand twenty-a of this chapter, the probationary period shall not exceed two years.”

      . Education Law § 2510 (2)—“Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.”

      . See 49 NY2d at 459 (“Where the interpretation of a statute or its application involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom, the courts regularly defer to the governmental agency charged with the responsibility for administration of the statute. If its interpretation is not irrational or unreasonable, it will be upheld.”)

      . See id. (“Where, however, the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency and its interpretive regulations are therefore to be accorded much less weight.”)

      . “The bill aims to prevent the use of favoritism by a school board or BOCES in the retention of staff and to protect tenured personnel by clarifying the process by which staff are dismissed and subsequently rehired. In addition, the bill prevents school boards from abolishing a position as means for disposing of unwanted tenured personnel, when in fact, no savings in cost or increase in efficiency is expected to be realized.
      “Identical language appears in Article 51 of the Education Law, which governs small city school districts. However, the courts and the Commissioner of Education have interpreted this provision to apply to school districts and boards of cooperative educational services generally. This bill will clarify that these provisions apply to all school districts.” (Budget Report on Bills, Bill Jacket, L 1992, ch 737.)

      . “IV Seniority

        “Seniority for purposes of abolition of positions shall be determined by length of service within a tenure area. Any unpaid leave time shall not be included in determining length of service.
      In instances where length of service is identical, seniority shall be determined as follows:
      “1. By the date of Board appointment, where individuals are appointed at different Board meetings, then if equal;
      “2. If appointed by different Board resolutions at the same Board meeting, by order of appearance of the resolutions in the Board minutes, then if equal;
      “3. If appointed by the same Board resolution, by the order of appearance of names in such resolution.”

      . Education Law § 2585 (3)—“Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.”

      . Amicus curiae, New York State School Boards Association, Inc., argues that applying section 3013 (2) to teaching assistants circumscribes the ability of school districts to consider knowledge and skill when circumstances necessitate laying off teaching assistants because it causes districts to shuffle teaching assistants around based on seniority, rather than based on their knowledge and skills.


author: Read, J.

text:
    [823 NE2d 1271, 790 NYS2d 625]
    Anne Indemini, Appellant, v Beth Israel Medical Center, Respondent.
    Argued January 5, 2005;
    decided February 10, 2005

      POINTS OF COUNSEL

      Carabba Locke LLP, New York City (Steven I. Locke of counsel), for appellant.
    I. As a medical resident, Dr. Indemini is entitled to bring her breach of contract claims to court in the first instance without Public Health Council review. (Guggenheimer v Ginzburg, 43 NY2d 268; Foley v D’Agostino, 21 AD2d 60; Grand Realty Co. v City of White Plains, 125 AD2d 639; Sanders v Winship, 57 NY2d 391; Datlof v Turetsky, 111 AD2d 364; Antonoff v Maimonides Med. Ctr., 251 AD2d 522; Jabbour v Albany Med. Ctr., 237 AD2d 787; Mihalakis v Cabrini Med. Ctr. [CMC], 151 AD2d 345; Matter of Salour v Glass, 180 Misc 2d 982; Easaw v St. Barnabas Hosp., 142 Misc 2d 480.) II. Dr. Indemini’s claims are also not barred at the pleading stage because an educational institution’s termination decisions may be entitled to some modicum of deference. (Matter of Olsson v Board of Higher Educ., 49 NY2d 408; Antonoff v Maimonides Med. Ctr., 251 AD2d 522; Mihalakis v Cabrini Med. Ctr. [CMC], 151 AD2d 345.)

      Kornstein Veisz Wexler & Pollard, LLP, New York City (Mark Platt and Marvin Wexler of counsel), for respondent.
    I. The courts below correctly held that appellant’s failure to exhaust her Public Health Law remedies deprived the court of subject matter jurisdiction over appellant’s claims. (Gelbard v Genesee Hosp., 87 NY2d 691; Matter of Cohoes Mem. Hosp. v Department of Health, 48 NY2d 583; Guibor v Manhattan Eye, Ear & Throat Hosp., 46 NY2d 736; Solomon v Beth Israel Med. Ctr., 248 AD2d 118, 92 NY2d 874; Antonoff v Maimonides Med. Ctr. [CMC], 251 AD2d 522; Jabbour v Albany Med. Ctr., 237 AD2d 787; Matter of Salour v Glass, 180 Misc 2d 982; Bhard-Waj v United Health Servs., Hosps., 303 AD2d 824; Matter of Ordway, 196 NY 95; Interfaith Med. Ctr. v Sabiston, 136 AD2d 238.) II. Because New York common law requires courts in this context to defer, the trial court properly dismissed appellant’s claims for this reason as well. (Moallem v Jamaica Hosp., 264 AD2d 621; Harris v Eisenberg, 199 AD2d 305; Matter of Olsson v Board of Higher Educ., 49 NY2d 408; Matter of Susan M. v New York Law School, 76 NY2d 241; Matter of Patti Ann H. v New York Med. Coll., 58 NY2d 734; Moukarzel v Montefiore Med. Ctr., 235 AD2d 239;
      Board, of Curators of Univ. of Mo. v Horowitz, 435 US 78; Antonoff v Maimonides Med. Ctr., 251 AD2d 522; Mihalakis v Cabrini Med. Ctr. [CMC], 151 AD2d 345.) III. Because the indisputable record of the review proceedings shows that appellant received a procedurally fair hearing and that there was some reasonable basis for the hospital’s decision, the federal Health Care Quality Improvement Act also bars appellant’s claims. (Bryan v James E. Holmes Regional Med. Ctr., 33 F3d 1318, 514 US 1019; Gelbard v Genesee Hosp., 255 AD2d 882; Mathews v Lancaster Gen. Hosp., 87 F3d 624; Austin v McNamara, 979 F2d 728; Smith v Ricks, 31 F3d 1478; Monroe v AMI Hosps. of Tex., Inc., 877 F Supp 1022; Imperial v Suburban Hosp. Assn., Inc., 37 F3d 1026.)

      Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Albany CDarrell E. Jeffers and Jason M. LaFlam of counsel), for Healthcare Association of New York State, amicus curiae. I. Prior to seeking judicial review for the termination of hospital privileges, a physician participating in a residency program must first seek review by the Public Health Council. (Guibor v Manhattan Eye, Ear & Throat Hosp., 46 NY2d 736; Gelbard v Genesee Hosp., 211 AD2d 159, 87 NY2d 691; Antonoff v Maimonides Med. Ctr., 251 AD2d 522; Jabbour v Albany Med. Ctr., 237 AD2d 787; Mihalakis v Cabrini Med. Ctr. [CMC], 151 AD2d 345; Easaw v St. Barnabas Hosp., 142 Misc 2d 480.) II. Academic teaching hospitals should be afforded a high level of deference for adverse actions taken against physicians participating in residency programs. (Fried v Straussman, 41 NY2d 376; Maltz v New York Univ. Med. Ctr., 121 AD2d 323; Matter of Susan M. v New York Law School, 76 NY2d 241; Auguste v New York Hosp. Med. Ctr., 260 AD2d 589; Moukarzel v Montefiore Med. Ctr., 235 AD2d 239.)
   OPINION OF THE COURT

Read, J.

On December 7,1999, the Department of Emergency Medicine at defendant Beth Israel Medical Center terminated plaintiff Anne Indemini from her position as a second-year medical resident. The Department took this action “[b]ased on [plaintiffs] disciplinary history, and on [an] incident of inappropriate and disruptive conduct, insubordination, poor judgement and poor performance while on probation.” Plaintiff grieved the Department’s decision to the Medical Center’s House Staff Grievance Committee, which determined on May 19, 2000, that “the evidence produced by the Department fully justifie[d]” the termination, and that there was “no evidence to support the conclusion that the reasons given by the Department for its actions were pretextual,” as plaintiff had argued. On July 5, 2000, the Medical Center’s Review Committee recommended that the Medical Center’s Board of Trustees uphold plaintiffs termination; on July 26, 2000, the Board voted unanimously to accept the Review Committee’s recommendation.

On April 20, 2001, plaintiff commenced this breach of contract action, alleging that the Medical Center had wrongfully terminated her residency because of her advocacy for the rights of staff members and her union organizing activities. Plaintiff sought declaratory relief; reinstatement and/or future damages; compensatory damages; and expurgation of the Medical Center’s records to delete any references to personnel actions taken against her. Upon the Medical Center’s motion, Supreme Court dismissed the complaint for lack of subject matter jurisdiction because plaintiff had not exhausted her administrative remedies under article 28 of the Public Health Law. The Appellate Division affirmed (309 AD2d 651 [1st Dept 2003]), as do. we.

Section 2801-b (1) of the Public Health Law provides in relevant part that

“[i]t shall be an improper practice for the governing body of a hospital to refuse to act upon an application for staff membership or professional privileges or to deny or withhold from a physician . . . staff membership or professional privileges in a hospital, or to exclude or expel a physician . . . from staff membership in a hospital or curtail, terminate or diminish in any way a physician’s . . . professional privileges in a hospital, without stating the reasons therefor, or if the reasons stated are unrelated to standards of patient care, patient welfare, the objectives of the institution or the character or competency of the applicant.”

A party aggrieved by an improper practice may file a complaint with the Public Health Council (PHC) (Public Health Law § 2801-b [2]), which must promptly conduct a confidential investigation (Public Health Law § 2801-b [3]). The PHC is composed of the Commissioner of Health and 14 members appointed by the Governor with the advice and consent of the Senate (Public Health Law § 220). If the PHC determines that cause exists to credit the complaint’s allegations, it must promptly so advise the governing body of the hospital against which the complaint was lodged, and direct the hospital to review its actions (Public Health Law § 2801-b [3]). The provisions of section 2801-b do not “impair or affect any other right or remedy” that a physician may have (Public Health Law § 2801-b [4]). Supreme Court may enjoin violations or threatened violations of article 28, and any finding made by the PHC or the Commissioner or a hearing officer “shall be prima facie evidence of the fact or facts found therein” (Public Health Law § 2801-c).

By its terms, section 2801-b applies to plaintiff because she is a “physician” who has been denied “professional privileges” by the Medical Center. A medical resident is undoubtedly a physician (see Merriam-Webster’s Collegiate Dictionary 996 [10th ed 1998] [defining “resident” as, among other things, “a physician serving a residency”]). Further, the Medical Center’s adverse decision regarding plaintiffs fitness to continue in its residency program “curtail[s], terminate[s] or diminish[es]” the “professional privileges” extended to her by virtue of the Medical Center’s postgraduate medical education program in emergency medicine and/or the Resident Agreement.

Public Health Law § 2801-b was originally enacted to create an avenue of redress for physicians whom hospitals discriminated against or unjustly denied staff membership or professional privileges; however, as Supreme Court below observed, “the statute gives no indication that the Legislature intended Residents, who perform medical duties under the direction of licensed physicians, to have greater access to the courts than physicians.” Thus, reading section 2801-b to exclude from its reach those physicians who are residents is unsupported by the statute’s language and disserves the “dual purpose” of threshold PHC review—to “allow[ ] an expert body to initially review the physician’s complaint and [ ] promot[e] prelitigation resolution” (Gelbard v Genesee Hosp., 87 NY2d 691, 696 [1996]; see also Mason v Central Suffolk Hosp., 3 NY3d 343 [2004]).

Plaintiff argues that PHC review would be redundant in her case because she has already exhausted the internal grievance procedure that the Accreditation Council for Graduate Medical Education mandates teaching hospitals to follow. The medical staff privileges of the plaintiff physician in Gelbard, however, also were terminated only after he had exhausted the defendant hospital’s internal hearing and review procedure. Article 28 provides for review by a government panel of medical professionals having no connection whatsoever to the hospital whose actions are being questioned. The availability of this impartial forum “with vast experience and unparalleled expertise in these cases” (Gelbard, 87 NY2d at 697) not only affords a terminated physician an additional level of professional scrutiny, but also serves to protect the hospital by eliminating any hint of institutional bias. As we observed in Matter of Cohoes Mem. Hosp. v Department of Health of State of N.Y. (48 NY2d 583, 589 [1979]):

“[T]he legislature, by enacting section 2801-b of the Public Health Law, intended to provide the physician and the hospital with a professionally competent forum in which to resolve their disputes in an effort to avoid litigation, if possible. . . . [The PHC] us[es] its professional expertise to identify and discourage groundless claims, to mediate and to conciliate disputes between health-care professionals, and to offer the court some aid in resolving such disputes, should the parties fail to come to an agreement on their own.”

Plaintiff also protests that the Appellate Divisions are split over whether an aggrieved resident must exhaust administrative remedies under section 2801-b, pointing to the Second Department’s decision in Antonoff v Maimonides Med. Ctr. (251 AD2d 522 [1998] [plaintiff resident who claimed that he was coerced into resigning after being accused of sexually harassing a patient alleged breach of contract sufficiently to withstand motion to dismiss]), and the Third Department’s decision in Jabbour v Albany Med. Ctr. (237 AD2d 787 [1997] [male plaintiff resident terminated for allegedly conducting an inappropriate medical examination of a female patient raised a material issue of fact sufficient to defeat summary judgment on his cause of action for breach of contract]).

Both of these cases, however, involved a resident’s termination based solely on allegations of sexual misconduct; neither the Second nor the Third Department considered, much less decided, whether section 2801-b applies in this context because the issue was not raised. They certainly did not decide that section 2801-b is inapplicable to those physicians who are residents. In our view, a medical resident’s “proper recourse for challenging [ ] termination from [a hospital] residency program is the grievance process set out in Public Health Law § 2801-b, which cannot be avoided ‘simply by asserting a breach of contract claim’ ” (see Solomon v Beth Israel Med. Ctr., 248 AD2d 118 [1st Dept 1998], lv denied 92 NY2d 874 [1998], quoting Gelbard at 697). Whether there is an exemption from PHC review when a physician’s staff membership or professional privileges are denied, curtailed or terminated solely because of alleged sexual harassment or misconduct directed at a patient is another question for another day.

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

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt and Graffeo concur; Judge R.S. Smith taking no part.

Order affirmed, with costs.


author: R.S. Smith, J.

text:
    [823 NE2d 1274, 790 NYS2d 628]
    The People of the State of New York, Respondent, v Ariel Nazario, Appellant.
    Argued January 13, 2005;
    decided February 10, 2005

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Robert S. Dean of counsel), for appellant.
    The trial court deprived appellant of his right to a public trial when it closed the courtroom to appellant’s drug counselor during the testimony of the undercover officers, despite the absence of any showing that the counselor’s presence would jeopardize the undercover s’ safety. (People v Clemons, 78 NY2d 48; People v Jones, 47 NY2d 409, 444 US 946; People v Hinton, 31 NY2d 71, 410 US 911; Waller v Georgia, 467 US 39; People v Kin Kan, 78 NY2d 54; People v Martinez, 82 NY2d 436; People v Gutierez, 86 NY2d 817; People v Nieves, 90 NY2d 426; People v Ramos, 90 NY2d 490; In re Oliver, 333 US 257.)

      Robert M. Morgenthau, District Attorney, New York City (Heather Pearson and Susan Axelrod of counsel), for respondent.
    Defendant’s complaint about the trial court’s exclusion of defendant’s drug counselor from the courtroom during the testimony of two undercover police detectives is unpreserved and is, in any event, without merit. (People v Hinton, 31 NY2d 71; People v Gray, 86 NY2d 10; People v Kello, 96 NY2d 740; People v Martin, 50 NY2d 1029; In re Oliver, 333 US 257; People v Jelke, 308 NY 56; People v Martinez, 82 NY2d 436; People v Jones, 96 NY2d 213; People v Ramos, 90 NY2d 490, 522 US 1002; Waller v Georgia, 467 US 39.)
   OPINION OF THE COURT

R.S. Smith, J.

It is well established that a criminal trial must normally be open to the public, but that the courtroom may be closed in some situations when the trial court, in its discretion, decides that closing it is necessary. It is also well established that, when a trial court decides to close a courtroom, it should ordinarily make an exception for members of the defendant’s family. This case requires us to consider whether and when people who have a close relationship with the defendant but are not family members should also be made exceptions to an order excluding the general public.

We conclude that, where the defendant has shown that there is a special relationship between a proposed spectator and the defendant of a kind that enables the proposed spectator to give the defendant the kind of moral and emotional support that might be expected from a family member, the trial court should admit that spectator to an otherwise closed courtroom unless the prosecution shows a specific reason for his or her exclusion. Applying that rule to this case, we conclude that defendant’s drug counselor should have been admitted to the courtroom, and we therefore reverse defendant’s conviction.

Facts and Procedural History

This is a buy and bust case, in which defendant was convicted of selling two bags of heroin to an undercover officer. The officer who purchased the heroin and another undercover who shadowed him as his “ghost” were called as witnesses. The prosecution moved pursuant to People v Hinton (31 NY2d 71 [1972]) to close the courtroom during the testimony of both officers on the ground that closure was necessary to protect their safety. After hearings, Supreme Court granted the Hinton motions as to both officers. Defendant does not challenge those rulings.

After each hearing, defendant asked that the closure of the courtroom be as narrow as possible, and specifically asked that defendant’s brother and his drug counselor be allowed to attend. Supreme Court admitted the brother, but excluded the drug counselor, commenting: “I don’t see any necessity for him to come here, he knows a lot of people. There is no reason he has to come to the courtroom, he’s not a member of the family.”

Defendant appealed from his conviction on the ground that he was deprived of his right to a public trial. The Appellate Division affirmed. We now reverse.

Discussion

The applicable general rule is stated in Waller v Georgia (467 US 39, 48 [1984]): in exceptional cases a courtroom may be closed to the general public to protect “an overriding interest,” but “the closure must be no broader than necessary to protect that interest.” A number of our cases applying this rule establish that an order of closure that does not make an exception for family members will be considered overbroad, unless the prosecution can show specific reasons why the family members must be excluded (People v Kin Kan, 78 NY2d 54, 58-59 [1991] [exclusion of defendant’s family overbroad under Waller]; People v Gutierez, 86 NY2d 817 [1995] [exclusion of wife and children violated defendant’s right to a public trial]). In People v Nieves (90 NY2d 426, 430 [1997]), we said:

“Where . . . the trial court is aware that the defendant’s relatives have been attending the proceedings or that the defendant would like to have certain family members present, exclusion of those individuals must be necessary to protect the interest advanced by the People in support of closure” (citations omitted).

We have not previously discussed when non-family members should be exceptions to a general order of exclusion, except that we have held that a defendant’s “girlfriend”—for these purposes, the equivalent of a family member—should have been admitted (People v Garcia, 95 NY2d 946, 947 [2000]). The First and Second Departments of the Appellate Division have considered the issue of non-family members and have taken contrasting approaches. The First Department held in People v DeJesus (305 AD2d 170, 171 [1st Dept 2003]) that the relationship between the defendant and a “family friend” was “too remote to warrant the ‘heightened showing’. . . that is required when actual family members are excluded from a criminal trial pursuant to a limited closure order.” In the present case, the First Department reached a similar conclusion about defendant’s drug counselor. The Second Department, however, held in People v Heslop (307 AD2d 975 [2d Dept 2003]) that, where defendant had requested that “certain . . . friends” be present, the burden was on the prosecution to show that their presence would be a threat to the safety of the undercover officer. The approach we approve is closer to that of the First Department, though we conclude that the First Department erred in this case.

Defendant argues that, as Heslop appears to hold, a mere request by a defendant to have a “friend” or other identified person enter the courtroom is enough to shift to the prosecution the burden of proving that that person’s presence would be dangerous. We reject this argument. Information about the defendant’s “friends” is much more readily available to the defendant than to the prosecution, and we are concerned that the too-ready admission to closed courtrooms of people identified as no more than “friends” could make possible the intimidation of witnesses, or even retaliation against them. Once the prosecution has met the burden of showing that a courtroom must be closed to the general public in order to protect a witness’s safety, the burden should shift to the defendant seeking an exception to the closure to show that a proposed spectator is linked to him by some tie of more significance than ordinary friendship.

Where a spectator’s presence really is important, the burden we have placed on defendant should not be difficult to meet, and indeed we have concluded that it was met in this case. Defendant identified the person he wished to have present in the , courtroom as his drug counselor. This was a prima facie showing of a significant personal relationship, and provided a basis for inferring that the drug counselor could give the sort of moral and emotional support in the courtroom that is normally given by family members. In another case, another defendant might be permitted, for similar reasons, to obtain entrance to the courtroom for his or her psychiatrist or a member of the clergy.

Of course, in this case Supreme Court was not required to accept defendant’s terse description of the proposed spectator at face value. Either the judge or prosecutor could have made reasonable inquiries, for example, “How long has he been his drug counselor?” or “Can you tell me more about the relationship?” Simply to exclude the drug counselor without any inquiry, however, as Supreme Court did here, deprived defendant of his right to a public trial.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

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

Order reversed, etc.