text:
    [810 NE2d 894, 778 NYS2d 442]
    Ram Krishna Maheshwari et al., Appellants, v City of New York et al., Respondents, et al., Defendants.
    Argued March 25, 2004;
    decided May 6, 2004

      POINTS OF COUNSEL

      Nitkewicz & McMahon, LLP, Commack {Edward J. Nitkewicz arid Jinan M. Arafat of counsel), for appellants.
    I. Defendants-respondents had notice of criminal activity in connection with their rock concerts and therefore had a duty to provide minimal security measures which they failed to meet. (Provenzano v Roslyn Gardens Tenants Corp., 190 AD2d 718; Iannelli v Powers, 114 AD2d 157; Balsam v Delma Eng’g Corp., 139 AD2d 292; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Basso v Miller, 40 NY2d 233; Miller v State of New York, 62 NY2d 506; Jacqueline S. v City of New York, 81 NY2d 288; Riss v City of New York, 22 NY2d 579; Palsgraf v Long Is. R.R. Co., 248 NY 339; Rotz v City of New York, 143 AD2d 301.) II. Common contemporary experience gives rise to a duty of care to protect users of the permitted premises from disorder, unruliness, a melee or a riot erupting from a cause ignited by the vagaries of individuals brought together in a heightened atmosphere such as an all-day rock concert with drinking, marijuana smoking and “tailgating.” (Rotz v City of New York, 143 AD2d 301; Pulka v Edelman, 40 NY2d 781; Palsgraf v Long Is. R.R. Co., 248 NY 339.) III. Defendants-respondents failed to provide any security to the sunken meadow parking field and thus failed to meet their duty of care. (Curry v Baisley Park Assoc., 162 Misc 2d 436.) IV Whether defendants-respondents’ failure to provide any security to the parking field known as “Sunken Meadow” was a proximate cause of the assault upon plaintiff-appellant is a question of fact for jury determination. (Garrett v Twin Parks Northeast Site 2 Houses, 256 AD2d 224; Burgos v Aqueduct Realty Corp., 92 NY2d 544; Rotz v City of New York, 143 AD2d 301; Burgundy Basin Inn v Watkins Glen Grand Prix Corp., 51 AD2d 140; Derdiarian v Felix Contr. Corp., 51 NY2d 308.) V. The criminal assault upon plaintiff-appellant at a rock concert was foreseeable and therefore not an intervening act which severs the liability of defendants-respondents for negligent security. (Derdiarian v Felix Contr. Corp., 51 NY2d 308; Kush v City of Buffalo, 59 NY2d 26; Parvi v City of Kingston, 41 NY2d 553; Stephenson v Johnson & Son, 168 Misc 2d 528; Nallan v Helmsley-Spear, Inc., 50 NY2d 507.) VI. Defendant-respondent City of New York is not entitled to an order of summary judgment based upon issues not presented in the motion papers to the trial court below. (Dunham v Hilco Constr. Co., 89 NY2d 425; Frank v City of New York, 211 AD2d 478; Marshall v New York City Health & Hosps. Corp., 186 AD2d 542; Conroy v Swartout, 135 AD2d 945; Mercedes-Benz Credit Corp. v Dintino, 198 AD2d 901; Sebastian v State of New York, 93 NY2d 790; Matter of Richardson v Fiedler Roofing, 67 NY2d 246; People v Rodriguez y Paz, 58 NY2d 327; Sega v State of New York, 60 NY2d 183; Carnegie Hall Corp. v City Univ. of N.Y., 286 AD2d 214.) VII. The duty originally assigned to Delsener/Slater Enterprises, Ltd. under the stadium use agreement was not governmental but proprietary, and when the City of New York later reassumed the duty it remained proprietary. VIII. The City of New York’s failure to provide security to the crime-infested parking fields of its stadium where a rock concert was being held for profit was an omission which fell within its proprietary function. (Weiner v Metropolitan Transp. Auth., 55 NY2d 175; Miller v State of New York, 62 NY2d 506; Preston v State of New York, 59 NY2d 997; Bass v City of New York, 38 AD2d 407, 32 NY2d 894; Basso v Miller, 40 NY2d 233; Nallan v HelmsleySpear, Inc., 50 NY2d 507; Levy v State of New York, 262 AD2d 230; Rashed v State of New York, 232 AD2d 394; Ruchalski v Schenectady County Community Coll., 239 AD2d 687.)

      Michael A. Cardozo, Corporation Counsel, New York City (Julian L. Kalkstein and Larry A. Sonnenshein of counsel), for City of New York, respondent.
    I. The duty owed to plaintiff at a concert attended by 25,000 people did not include a guarantee of protection from a random act of violence. Failure to provide security from such an indiscriminate, stealthy assault was not the proximate cause of plaintiffs injury. (Hamilton v Beretta U.S.A. Corp., 96 NY2d 222; Polka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579; Lauer v City of New York, 95 NY2d 95; To-bin v Grossman, 24 NY2d 609; Mason v U.E.S.S. Leasing Corp., 96 NY2d 875; Di Ponzio v Riordan, 89 NY2d 578; Greene v Sibley, Lindsay & Curr Co., 257 NY 190; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Leyva v Riverbay Corp., 206 AD2d 150; Florman v City of New York, 293 AD2d 120.) II. Delsener/Slater Enterprises, Ltd. had a contractual duty with the City of New York to provide security in the parking areas. Delsener was not absolved of any of that duty by any security the City agreed to undertake. (Florman v City of New York, 293 AD2d 120; W.W.W. Assoc. v Giancontieri, 77 NY2d 157; Readco, Inc. v Marine Midland Bank, 81 F3d 295; A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d 20; Modell & Co. v City of New York, 159 AD2d 354, 76 NY2d 845; Granada Bldgs, v City of King

      ston, 58 NY2d 705; Public Improvements v Board of Educ., 56 NY2d 850; Matter of Parkview v City of New York, 71 NY2d 274, 995, 488 US 801.) III. The municipal defendants cannot be held liable for the failure to adequately perform a governmental function. (Balsam v Delma Eng’g Corp., 90 NY2d 966; Kircher v City of Jamestown, 74 NY2d 251; Cuffy v City of New York, 69 NY2d 255; Weiner v Metropolitan Transp. Auth., 55 NY2d 175; Riss v City of New York, 22 NY2d 579; Price v New York City Hous. Auth., 92 NY2d 553; Bonner v City of New York, 73 NY2d 930; Vitale v City of New York, 60 NY2d 861; Krakower v City of New York, 217 AD2d 441; Akinwande v City of New York, 260 AD2d 586.)

      Law Office of Ted M. Tobias, New York City (.Milagros A. Matos of counsel), for Delsener/Slater Enterprises, Ltd., respondent.
    I. Delsener/Slater Enterprises, Ltd. had no duty to provide security because it had no notice of criminal activity in the area. (Florman v City of New York, 293 AD2d 120; Karp v Saks Fifth Ave., 225 AD2d 1014.) II. Defendant met its obligation to provide minimal security and therefore plaintiff failed to establish that inadequate security was the proximate cause of his injuries. (Burgos v Aqueduct Realty Corp., 92 NY2d 544; Brewster v Prince Apts., 264 AD2d 611, 94 NY2d 875; Karp v Saks Fifth Ave., 225 AD2d 1014; Leyva v Riverbay Corp., 206 AD2d 150.) III. Delsener/Slater Enterprises, Ltd. had no duty to provide greater security because there was no indication that plaintiffs assailants were dangerous. (Florman v City of New York, 293 AD2d 120; Rotz v City of New York, 143 AD2d 301.) IV. If there was inadequate security in the ballfield, liability rests with the City of New York and not with Delsener/Slater Enterprises, Ltd. (Florman v City of New York, 293 AD2d 120; Burgos v Aqueduct Realty Corp., 92 NY2d 544.)
   OPINION OF THE COURT

Rosenblatt, J.

Randomly and without provocation, four unidentified hoodlums attacked plaintiff in the parking lot at a music festival in a New York City park. We must decide whether plaintiff may hold the City and the concert producer liable.

On July 10 and 11, 1996, defendant Delsener/Slater produced a Lollapalooza concert at Downing Stadium, a facility owned by defendant City of New York, on Randall’s Island. The festival included heavy metal and rap acts such as Metallica, Soundgarden, Wu Tang Clan and the Ramones. Delsener entered into a stadium use agreement with the City, by which Delsener was to provide “supervision of the parking areas for the Event,” including “sufficient trained security personnel as may be necessary” to police the stadium and additional facilities, ensure the orderly entrance and exit of patrons, manage the parking and traffic flow, and safeguard the property.

In addition, the contract called on Delsener to “prepare and submit a site and operations plan” detailing “public vehicular and pedestrian traffic circulation, parking control, and security from the Triborough Bridge ramps and the access roads to the designated ballfields to be used for parking and access to the stadium area.” The agreement also obligated Delsener to furnish a plan for the “number, location and hours of deployment of licensed security personnel assigned to the . . . parking fields.”

Several weeks before the event, representatives of those involved in the planning (including Delsener, the Police Department, the Parks Department and other private security companies) attended an “all-agency meeting” to discuss logistics. The participants agreed that the City, through the Police Department and the Parks Department Parks Enforcement Police (PEP), would provide security in the parking areas. On the days of the concert, the security plan was in place: 24 police officers, three sergeants and approximately two dozen PEP officers patrolled the parking areas. Police were assigned to maintain the island during the concert and to move the crowd of 25,000 people safely in and out of the stadium. PEP’s role was to patrol the parking areas in search of illegal vendors, alcohol, open fires and littering. Delsener also contracted with another firm to maintain the traffic flow and direct parking in the parking areas.

On July 10, 1996, plaintiff went to the concert to distribute pamphlets on behalf of the International Society for Krishna Consciousness. While in the Sunken Meadow parking area, four unidentified young men assaulted him without provocation. When the attack occurred, officers were stationed at certain parts of the parking fields, but apparently none were in the Sunken Meadow parking area. Plaintiff suffered serious personal injury at the hands of his attackers, whom he described as “heavily drunk, red eyes, bottles in their hand, smelling.” As the Appellate Division noted, “[although plaintiff did not see any police officers or anybody on horseback in the parking lot, he saw people in uniform directing traffic” (307 AD2d 797, 798-799 [1st Dept 2003]). At a deposition, a police officer testified that, according to his “post list,” no police officer had been assigned to the Sunken Meadow parking area.

In his complaint, plaintiff (and his wife derivatively) sued Delsener and the City for not providing adequate security. Delsener moved for summary judgment, claiming in essence that it owed plaintiff no duty to prevent a random criminal act of this kind. Supreme Court denied the motion and Delsener appealed. By a divided court, the Appellate Division reversed and granted summary judgment not only to Delsener but to the City as well. The Court based its decision on Florman v City of New York (293 AD2d 120 [1st Dept 2002]), in which another plaintiff was injured in the parking area at the same Lollapalooza concert. In assuming that the injury in Florman was the result of a willful attack, the Court concluded that plaintiff had failed to raise a triable issue of fact as to foreseeability and proximate cause.

Two Justices dissented, believing there to be questions of fact as to the predictability of criminal assaults at a Lollapalooza concert. They referred to a journalist’s description of the event as attended by “a moshing crowd of bare-chested, sweating, staggeringly drunk and stoned ‘Beavis and Butt-Head’ types.” (307 AD2d at 801.) We now affirm the order of the Appellate Division.

In arguing that the City and Delsener breached their duty to provide adequate security in the parking area, plaintiff seeks to hold Delsener liable under the stadium use agreement and the City in its proprietary capacity as the owner of Downing Stadium and Randall’s Island. Plaintiff maintains that the crime was foreseeable because defendants had notice of criminal activity at previous Lollapalooza festivals, and that defendants’ negligence in providing security was a proximate cause of his injury.

Plaintiff essentially argues that Lollapalooza attracts concertgoers who are predictably prone to criminal behavior. In support, he presented statistics from previous Lollapalooza concerts in which arrests were made for disorderly conduct, misdemeanor assault, criminal mischief, resisting arrest and possession of stolen property. He also claims that defendant knew that one of the musical acts, Wu Tang Clan, had violent incidents at previous concerts. Further, plaintiff argues that defendants knew that tailgating occurred in the parking areas before and during the concert. Tailgating, he contends, increases the chances that criminal activity will occur, presumably because tailgaters may drink alcoholic beverages.

Defendants argue that any duty they owed to plaintiff did not include a guarantee of protection from a random act of violence. They assert that the indiscriminate, spontaneous assault upon plaintiff was not proximately caused by any deficiency in security. We conclude that the Appellate Division was correct in accepting defendants’ arguments.

We have long held that “New York landowners owe people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition” (Tagle v Jakob, 97 NY2d 165, 168 [2001]; see Basso v Miller, 40 NY2d 233, 241 [1976]). Although landlords and permittees have a common-law duty to minimize foreseeable dangers on their property, including the criminal acts of third parties, they are not the insurers of a visitor’s safety (see Burgos v Aqueduct Realty Corp., 92 NY2d 544, 548 [1998]; Jacqueline S. v City of New York, 81 NY2d 288, 292-293 [1993], rearg denied 82 NY2d 749 [1993]; Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519 [1980]). As we have noted, however, foreseeability and duty are not identical concepts. Foreseeability merely determines the scope of the duty once the duty is determined to exist (see Pulka v Edelman, 40 NY2d 781, 785 [1976]). In cases arising out of injuries sustained on another’s property, the scope of the possessor’s duty is defined by past experience and the “likelihood of conduct on the part of third persons . . . which is likely to endanger the safety of the visitor” (Nallan, 50 NY2d at 519, quoting Restatement [Second] of Torts § 344, Comment /).

Here, the brutal attack was not a foreseeable result of any security breach. The types of crimes committed at past Lollapalooza concerts are of a lesser degree than a criminal assault, and would not lead defendants to predict that such an attack would occur or could be prevented. By all accounts, defendants took reasonable measures to deal with issues of crowd control and other forms of disorderliness short of unprovoked criminal acts. A random criminal attack of this nature is not a predictable result of the gathering of a large group of people.

The Appellate Division concluded, as do we, that the record reveals no failure by the organizers of the event to provide adequate control or security. The concert was host to thousands of people over a large area. Security officers cannot be everywhere at once. As the Appellate Division stated in Florman, “[i]t is difficult to understand what measures could have been undertaken to prevent plaintiffs injury except presumably to have had a security officer posted at the precise location where the incident took place or wherever pedestrians were gathered, surely an unreasonable burden” (293 AD2d at 127).

Plaintiff and the Appellate Division dissenters rely heavily on Rotz v City of New York (143 AD2d 301 [1st Dept 1988]). There, the Appellate Division denied summary judgment to defendants after the plaintiff sustained injury at a concert in Central Park when a stampeding crowd trampled over him. While we do not express an opinion on the merits of that case, it is enough to say that it is, in any event, distinguishable from the one before us. The Appellate Division correctly recognized that Rotz involved crowd control, which is not the issue here.

We also agree with the Appellate Division’s conclusions that even assuming a lapse in the security in the parking lot, plaintiffs injuries were not the result of any such lapse, but were caused by an independent, intervening criminal act. To establish a prima facie case of proximate cause, a plaintiff must show “that the defendant’s negligence was a substantial cause of the events which produced the injury” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). “Where the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence” (id.). An intervening act may break the causal nexus when it is “extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct” (id.). Here, as an independent act far removed from defendants’ conduct, the criminal assault broke the causal nexus. The attack was extraordinary and not foreseeable or preventable in the normal course of events.

Inasmuch as we agree with the Appellate Division’s dismissal of the action against the City on the lack of foreseeability and on the absence of causation, we need not address the City’s argument that it is immune from liability based on its claim that it acted in a governmental, and not proprietary, capacity. In addition, plaintiffs remaining arguments are without merit.

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

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

Order affirmed, with costs.

      . The remaining defendants—Randall’s Island Sports Foundation, Inc., Keith Kevan Organization, Inc. and Keith Kevan—are not parties to this appeal. Supreme Court dismissed all claims against the Kevan defendants.

      . Although the City did not appeal from Supreme Court’s order, the Appellate Division had the authority to search the record and grant summary judgment to the City under CPLR 3212 (b) (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]).


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    [810 NE2d 890, 778 NYS2d 438]
    In the Matter of Real Holding Coup., Respondent, et al., Petitioner, v Alan Lehigh et al., Appellants.
    Argued March 24, 2004;
    decided May 6, 2004

      POINTS OF COUNSEL

      Vergilis, Stenger, Roberts, Pergament & Viglotti, LLP, Wappingers Falls (Karen P. MacNish and Albert P. Roberts of counsel), for appellant.
    I. This Court should look to the legislative history of Town Law § 274-b because section 274-b (3) and (5) are in apparent conflict. II. The legislative history, prior case law, and dictionary meanings of “dimensional” and “physical” support a finding that a zoning board of appeals may not grant an area variance from specific special use permit criteria without the zoning board of appeals first being granted such authority by the town board. (Matter of Knadle v Zoning Bd. of Appeals of Town of Huntington, 121 AD2d 447; Matter of Jewish Reconstructionist Synagogue of N. Shore v Levitan, 34 NY2d 827; Matter of Cappadoro Land Dev. Corp. v Amelkin, 78 AD2d 696, 54 NY2d 833; Matter of Cathedral of Incarnation v Glimm, 97 AD2d 409; Matter of Wegmans Enters. v Lansing, 72 NY2d 1000; Matter of Tandem Holding Corp. v Board of Zoning Appeals of Town of Hempstead, 43 NY2d 801; Matter of Retail Prop. Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190.) III. The Appellate Division, Second Department, erroneously determined that the Zoning Board of Appeals of the Town of Wappinger has authority to waive specific special use permit criteria enumerated in the Town’s zoning code pursuant to Town Law § 274-b (3). (Matter of AA&L Assoc. v Casella, 207 AD2d 1012; Matter of Jewish Reconstructionist Synagogue of N. Shore v Levitan, 34 NY2d 827; Matter of Knadle v Zoning Bd. of Appeals of Town of Huntington, 121 AD2d 447; Wisoff v Amelkin, 123 AD2d 623.)

      Keane & Beane, P.C., White Plains {Judson K. Siebert of counsel), for respondent.
    New York State Town Law § 274-b (3) authorizes a zoning board of appeals to issue an area variance from special use permit requirements. (Matter of State of New York v Ford Motor Co., 74 NY2d 495; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Drelich v Kenlyn Homes, 86 AD2d 648; Dennis v Zoning Bd. of Appeals of Vil. of Briarcliff Manor, 167 Misc 2d 555; Matter of Sasso v Osgood, 86 NY2d 374; Matter of AA&L Assoc. v Casella, 207 AD2d 1012.)
   OPINION OF THE COURT

Read, J.

We are asked to decide whether Town Law § 274-b (3) authorizes a zoning board of appeals (ZBA) to grant area variances from special use permit requirements. For the reasons that follow, we hold that Town Law § 274-b (3) vests a ZBA with authority to grant an area variance from any requirement in a zoning regulation, including those for a special use permit.

I.

In 1992, Real Holding Corp. (RHC) acquired a one-half-acre parcel of land situated within a “Highway Business District” as shown on the Town of Wappinger’s zoning map. This parcel had served since the mid-1960’s as the site of a gasoline filling station, which closed shortly before RHC’s purchase of the land. After cleaning up the property to the satisfaction of state environmental authorities, RHC opted to develop a new gasoline filling station on it.

In order to undertake this proposed use, RHC was obliged by the Town Code to obtain a “gasoline filling station” special use permit from the Town Planning Board; however, RHC was unable to satisfy two distance standards for this permit. Specifically, the applicable Town Code provisions mandated 1,000 feet between a gasoline filling station and the boundary line of certain residentially zoned lands, and 2,500 feet between gasoline filling stations. In 1995, RHC asked the Town’s ZBA for variance relief from these two standards. The ZBA turned RHC down in early 1996, opining that it lacked jurisdiction to waive or modify zoning requirements specific to a special use permit.

In 2000, RHC revived its campaign to reestablish a gasoline filling station on the property by applying to the Planning Board for a special use permit. The Planning Board denied the application for failure to conform with several zoning requirements, including the two distance standards for the special use permit, and advised RHC to seek variances from the ZBA.

RHC requested the necessary variances, and the ZBA voted to entertain the application. After several months of review, however, the ZBA concluded that it was powerless to grant an area variance from special use permit requirements absent an express grant of authority therefor from the Town Board. Accordingly, on June 19, 2001, the ZBA denied RHC’s application.

RHC then commenced this CPLR article 78 proceeding to seek annulment of the ZBA’s determination and a judgment directing the ZBA to hear and decide its application for area variances. Supreme Court granted RHC’s petition and remitted the matter to the ZBA for further proceedings, holding that Town Law § 274-b (3) explicitly authorizes a ZBA to grant area variances from special use permit requirements. Upon the ZBA's appeal, the Appellate Division affirmed (304 AD2d 583 [2d Dept 2003]). We granted the ZBA leave to appeal, and now affirm.

II.

In the early 1990’s, the Legislature authorized the Joint Legislative Commission on Rural Resources to develop recommendations for recodifying local zoning laws. In 1991, the provisions concerning ZBAs in the Town Law were substantially revised as a result (see L 1991, ch 692, §§ 1-4; Town Law §§ 267—267-c). The following year the Legislature enacted companion legislation, which, as relevant here, included new Town Law § 274-b (see L 1992, ch 694, § 2). This provision defines and governs approval of special use permits, a widely used zoning device previously unmentioned in state statute.

Two subdivisions of section 274-b come into play on this appeal. The first—subdivision (3)—addresses the circumstances under which application may be made to a ZBA for an area variance from special use permit requirements:

“Application for area variance. Notwithstanding any provision of law to the contrary, where a proposed special use permit contains one or more features which do not comply with the zoning regulations, application may be made to the zoning board of appeals for an area variance pursuant to section two hundred sixty-seven-b of this article, without the necessity of a decision or determination of an administrative official charged with the enforcement of the zoning regulations” (§ 274-b [3]).

The second—subdivision (5)—addresses the waiver of special use permit requirements:

“Waiver of requirements. The town board may further empower the authorized board to, when reasonable, waive any requirements for the approval, approval with modifications or disapproval of special use permits submitted for approval. Any such waiver, which shall be subject to appropriate conditions set forth in the ordinance or local law adopted pursuant to this section, may be exercised in the event any such requirements are found not to be requisite in the interest of the public health, safety or general welfare or inappropriate to a particular special use permit” (§ 274-b [5]).

In the ZBA’s view, subdivisions (3) and (5) clash and, at most, establish that a ZBA may grant an area variance from general zoning requirements, but not from a special use permit requirement unless express authorization to do so has been bestowed by a town board in the town’s zoning code. We disagree.

First, subdivision (3) plainly states that “application may be made to the [ZBA] for an area variance” in those cases “where a proposed special use permit . . . do[es] not comply with the zoning regulations.” Moreover, a ZBA may grant these area variances “[notwithstanding any provision of law to the contrary.”

Next, subdivision (3) refers to “zoning regulations” without qualification. Nothing in the statute’s language suggests that area variances for special use zoning regulations should be treated differently than area variances from general, so-called bulk, zoning requirements. To hold that a ZBA may vary certain zoning provisions only if expressly empowered to do so by the town board overlooks the entire purpose of the ZBA, which is to provide relief in individual cases from the rigid application of zoning regulations enacted by the local legislative body.

Finally, section 274-b is entitled “Approval of special use permits,” and subdivision (3) directs that application for an area variance may be made to the ZBA “pursuant to” section 267-b (entitled “Permitted action by board of appeals”), which supplies the procedures for a ZBA to follow when issuing an area variance (see Town Law § 267-b [3]). Thus, section 274-b authorizes ZBAs to issue area variances from special use permit requirements, following the statutory procedures applicable to ZBAs in the exercise of their area variance jurisdiction. This is not only clear, but entirely consistent with the statutes and case law emphasizing that ZBAs are “vested with the exclusive power to grant or deny, in the first instance, a variance from the zoning ordinances” (Matter of Commco, Inc. v Amelkin, 62 NY2d 260, 266 [1984]; see also Jewish Reconstructionist Synagogue of N. Shore v Incorporated Vil. of Roslyn Harbor, 40 NY2d 158, 162 [1976] [“(T)he board of zoning appeals is a quasi-judicial body created by State law . . . . It provides a forum for the mitigation of harsh effects which zoning laws may have in exceptional cases”]).

Nor does subdivision (5) in any way conflict with subdivision (3), or diminish a ZBA’s independent jurisdiction under subdivision (3). Subdivision (5) vests a town board with discretion to empower an “authorized board” to waive any requirement of a special use permit. The waiver authority in subdivision (5) is broader than a ZBA’s authority in subdivision (3), which is restricted to granting area variances. The “authorized board” referred to in subdivision (5) is “the planning board or such other administrative body that [the town board] shall designate” {see Town Law § 274-b [2]). In effect, subdivision (5) allows a town board to establish one-stop special use permitting if it so chooses. As Supreme Court observed, where a town board exercises its discretion under subdivision (5), an applicant may have “two avenues to address an inability to comply with a given . . . requirement in connection with a special use permit,” but this overlap “does not create discord in the Town Law or render either [subdivision (3) or subdivision (5)] superfluous.”

Because we rely on the plain meaning of the relevant statutory text, we need not consult legislative history. Not surprisingly, however, section 274-b’s legislative history clearly contemplates the distinct purposes of subdivisions (3) and (5). Specifically, Senator Cook’s memorandum in support notes that this legislation was intended to “authorize[ ] town . . . boards to empower their planning board (or other authorized body) to waive, subject to appropriate conditions, any requirements for the approval of site plans” (Sponsor’s Mem, Bill Jacket, L 1992, ch 694, at 6). In addition, “in the event local site plan or special use permit requirements present dimensional difficulties to a particular applicant, an area variance may be applied for to the zoning board of appeals” {id.). Further, “by allowing appeal to the zoning board of appeals the bill provides applicants faced with dimensional difficulty an opportunity for administrative relief’ {id. at 7).

Finally, section 274-b’s legislative history does not, as the ZBA argues, portray any intention to incorporate existing case law wholesale. Indeed, this case law was not entirely consistent {compare Matter of Holy Spirit Assn, for Unification of World Christianity v Rosenfeld, 91 AD2d 190, 195 [2d Dept 1983] [“the zoning board had no authority, absent an application for a variance, to waive or modify the explicit conditions laid down in the town code” for a special use permit (emphasis added)] with Matter of Knadle v Zoning Bd. of Appeals of Town of Huntington, 121 AD2d 447 [2d Dept 1986] [ZBA has no authority to waive or modify a setback requirement for a special use permit in the guise of a variance]). The ZBA cites Matter of Jewish Reconstructionist Synagogue of N. Shore v Levitan (34 NY2d 827 [1974]) for the proposition that a ZBA may not waive or modify any of the explicit conditions mandated by a town or village board for a special use permit; however, in this memorandum decision we expressly declined to address whether a ZBA might have authority to issue a variance from special use permit requirements, noting that the issue was not presented on the appeal (id. at 829).

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

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

Order affirmed, with costs.

      * An “[a]rea variance” is defined as “the authorization by the zoning board of appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations” (Town Law § 267 [1] [b]). Contrary to the position taken by the ZBA, the distance standards at issue here, which specify how many feet must separate a gasoline filling station from certain residentially zoned areas and from other gasoline filling stations, are clearly “dimensional or physical requirements” subject to area variance relief.


author: Ciparick, J.

text:
    [810 NE2d 899, 778 NYS2d 447]
    The People of the State of New York, Appellant, v Ramon Aponte, Respondent.
    Argued March 25, 2004;
    decided May 11, 2004

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney, New York City 0Sheryl Feldman, Frank (Glaser, Sylvia Wertheimer and Mark Dwyer of counsel), for appellant.
    The trial court properly urged the jurors to reach a unanimous verdict, emphasizing that there was a particular standard of proof and that it was the jurors’ task to determine whether or not that standard had been met. (Early v Packer, 537 US 3; Lowenfield v Phelps, 484 US 231; People v Alvarez, 211 AD2d 425, 86 NY2d 761; People v Antommarchi, 80 NY2d 247; People v Pagan, 45 NY2d 725; People v Ali, 65 AD2d 513, 47 NY2d 920; People v Graham, 48 AD2d 646, 39 NY2d 775; People v Faber, 199 NY 256; People v Sheldon, 156 NY 268; Allen v United States, 164 US 492.)

      Clifford Chance US LLP, New York City {James M. Hosking of counsel), and Office of the Appellate Defender (Richard M. Greenberg and Sara Gurwitch of counsel), for respondent.
    In this factually straightforward case, the Appellate Division correctly decided that the supplemental instruction to the jury in response to its second deadlock note was coercive, shaming and unbalanced and—as demonstrated by the jury’s immediate guilty verdict—deprived Ramon Aponte of a fair trial and an uncoerced jury verdict. (Lowenfield v Phelps, 484 US 231; People v Alvarez, 211 AD2d 425, 86 NY2d 761; People v Antommarchi, 80 NY2d 247; Allen v United States, 164 US 492; Matter of Plummer v Rothwax, 63 NY2d 243; People v Cowen, 249 AD2d 560; Smalls v Batista, 191 F3d 272; People v Huarotte, 134 AD2d 166; Jenkins v United States, 380 US 445; People v Pagan, 55 AD2d 1055, 45 NY2d 725.)
   OPINION OF THE COURT

Ciparick, J.

The question presented by this appeal is whether Supreme Court’s supplemental instruction to a deadlocked jury was unbalanced and coercive so as to deprive defendant of a fair trial. We conclude that it was.

Defendant was charged in a single-count indictment with criminal sale of a controlled substance in the third degree (Penal Law § 220.39), arising from a buy and bust operation in Manhattan. His trial consisted of approximately three hours of testimony from three witnesses, two for the prosecution and one for the defense. The only issue at trial was the identity of defendant as the seller.

On the morning of April 30, 2001, following summations, the trial judge charged the jury and it began its deliberations. After about five hours, and having requested exhibits and readback of testimony, the jury sent a note at 4:05 p.m. claiming that it was “deadlock[ed] at this time.” The jurors were brought back into the courtroom and, the trial judge instructed them to “[c]ontinue deliberating. We await your verdict.” The jurors were subsequently excused until 9:30 a.m. the next morning.

On the second day of deliberations, the jurors again made a request for testimony to be read back. At 3:30 p.m., after about five more hours of deliberations, the jurors sent a second deadlock note to the court, stating that “we are not able to come up with a unanimous decision.” Defense counsel’s request for a mistrial was rejected and the jurors were brought into the courtroom. The trial judge then delivered the following supplemental instruction:

“When we started, you heard me describe a couple of different ways in the preliminary remarks and in the jury selection what the point of this was. Other countries do it a different way. You heard me describe how some countries don’t have juries. Some countries don’t have trials. We collectively for over 200 years have decided that we’re not leaving it to a group of military officers. We’re not leaving it to the single judge. We’re not leaving it to a panel of judges but you folks are doing it. The point of this process is to get a result.
“Something happened in this case. It was proven or not. The standard was met or it was not. The tree that fell made a noise or it didn’t. The bell that was rung with nobody around—sorry. Something hit the bell probably and with nobody around. Only you folks can tell us was there a gong, a ding, a ping or nothing.
“When I started to tell you what the law was so you could deliberate, almost certainly I said, if not these words, close to these words: Now I’m going to tell you what the law is to put you in a position to do what you said you would do when we started which is to decide this case. You heard me saying during jury selection no judge can say to defendant nor a prosecutor I’m tired of this case, plead guilty, I’m tired of this case, dismiss it. It stays in a drawer until a jury decides it.
“Something happened in this case. It was not a nonevent. The standard was met or it was not and there is no other entity on the face of the earth that can tell us what the answer is to that.
“Your note says: At 3:30 you, on May the 1st, [‘]we are not able to come up with a unanimous decision.’
“Whether there is a rare occurrence—of course, it happens but it is a rare occurrence—whether there is in this case the rare occurrence of a jury unable to resolve a case is not a factual decision. It’s a legal decision. It is not your decision. It is mine. We are nowhere near at the point where I would begin to consider the possibility that you folks might not be able to resolve this case. Continue your deliberations please.”

Defense counsel immediately registered an objection to this instruction on the ground that it was an improper Allen charge (see Allen v United States, 164 US 492 [1896]), arguing that the supplemental instruction was coercive, would shame the jurors into a guilty result, and would create undue pressure on any dissenting jurors. The court denied counsel’s objection, and the jury continued deliberating, returning a verdict of guilty in just five minutes.

Supreme Court convicted defendant, upon the verdict, of criminal sale of a controlled substance in the third degree and sentenced him, as a second felony offender, to a term of 6 to 12 years. The same court denied defendant’s CPL 330.30 motion to set aside the verdict made on the ground that the jury instruction was improper and coercive and therefore deprived him of his right to a fair trial. The Appellate Division, with two Justices dissenting, reversed and remanded to Supreme Court for a new trial, holding that the supplemental jury instruction was unbalanced and coercive. Specifically, the Appellate Division found that the trial court’s charge (1) overemphasized the need to get a result, (2) suggested that the jurors were failing in their duty, (3) stressed that ‘‘[something happened” in the case, (4) presented jurors with the prospect of prolonged deliberations, and (5) failed to caution jurors not to surrender their conscientiously held beliefs. We agree and affirm the order of the Appellate Division.

While perhaps no one of these five flaws would alone be enough to warrant reversal, their combined effect requires it. We have long approved supplemental charges that encourage a verdict after the jury has reported a deadlock (see People v Ford, 78 NY2d 878, 880 [1991]; see also People v Pagan, 45 NY2d 725, 726 [1978]). “[A] trial court may properly discharge its responsibility to avoid mistrials by encouraging jurors to adhere to their oaths and make one final effort to review the evidence and reach a verdict one way or the other” (Pagan, 45 NY2d at 727). However, a court “ ‘must not attempt to coerce or compel the jury to agree upon a particular verdict, or any verdict’ ” (Pagan, 45 NY2d at 726, quoting People v Faber, 199 NY 256, 259 [1910]). Supplemental charges that coerce jurors “with untoward pressure to reach an agreement will not be countenanced” (Pagan, 45 NY2d at 727 [citations omitted]).

Here, Supreme Court’s supplemental instruction overemphasized the jury’s obligation to return a verdict. It told the jury: “The point of this process is to get a result. Something happened in this case. It was proven or not. The standard was met or it was not.” The court continued in this vein to state that it had instructed jurors as to the law so as “to put you in a position to do what you said you would do when we started which is to decide this case.” Limited in scope to the importance of returning a verdict and suggesting that the jurors were failing in their duty to reach a decision, the court’s supplemental instruction as a whole was unbalanced and coercive (see Ford, 78 NY2d at 880). The trial court’s admonition that it was “nowhere near” considering that the jurors would be unable to reach a decision added to the pressure to return a verdict, presenting jurors with the prospect of prolonged deliberations well beyond the two days they had already deliberated over the three-hour trial. Finally, the supplemental jury instruction failed to advise the jurors that they should not surrender a conscientiously held belief.

While an Allen charge is not “unbalanced or coercive for its failure to emphasize that ‘the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of [a juror’s] fellows’ ” (see Ford, 78 NY2d at 880, quoting Allen, 164 US at 501), the charge here did not include any encouraging language to balance its instruction that the jury needed to “decide this case.” In giving supplemental jury instructions to a deadlocked jury, trial courts should follow up the importance of reaching a verdict with a clarifying statement to the effect that it is the jurors’ “duty to decide the case if they [can] conscientiously do so” (Allen, 164 US at 501 [emphasis added]); jurors should not surrender their honest convictions “for the mere purpose of returning a verdict” (1 CJI[NY] 42.60, at 1019 [1983]). Contrary to the court’s supplemental instruction, the object of the jury system is not to “get a result,” it is “to secure unanimity by a comparison of views, and by arguments among the jurors themselves” (Allen, 164 US at 501).

The jury here, after a three-hour trial, two full days of deliberations and a second deadlock note, returned a verdict of guilty only five minutes after the supplemental instruction was given. While the swiftness of the verdict is not dispositive, it suggests that the jury was coerced (Lowenfield v Phelps, 484 US 231, 240 [1988]; see also United States v United States Gypsum Co., 438 US 422, 462 [1978]). The supplemental charge here fails to negate this coercive implication. Defendant was entitled to an uncoerced, unanimous jury verdict, not one tainted by the improper jury instructions given here. On retrial, the court should be mindful that criminal “jury instructions generally are not fertile ground for innovation during trial” (People v Owens, 69 NY2d 585, 589 [1987]).

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

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

Order affirmed.

      . The full text of this first supplemental instruction, not being challenged as coercive, is as follows:
      “Just generally asking, ever go to a doctor and you are really upset about something. Your health is obviously the most important thing in your life. You ever find yourself describing a situation to the doctor that is obviously very very problematic and it’s [sic] sort of eats you up. It is the most important thing going on in your life at that point and describe this very important personal problem. The doctor is sitting there, nodding and not saying a word because the doctor has heard it before.
      “I don’t know what you expected when you signed on for jury service. You’ve heard me in one way or [ ] another say I’ve been doing this for 18 years and this is jury deliberations. Continue deliberating. We await your verdict.”

      . The trial judge maintained at trial and in a written opinion that he “gave the jury additional non-Allen instructions.” On this appeal, both sides agree that this supplemental instruction is subject to the Allen charge standard of review.


author: Graffeo, J.

text:
    [811 NE2d 13, 778 NYS2d 751]
    The People of the State of New York, Respondent-Appellant, v Israel Nieves, Appellant-Respondent.
    Argued March 24, 2004;
    decided May 6, 2004

      POINTS OF COUNSEL

      Legal Aid Society of Westchester County, White Plains (Salvatore A. Gaetani and Stephen J. Pittari of counsel), for appellant-respondent.
    I. A challenge to the scope of a final order of protection concerns a defendant’s right to be sentenced as provided by law and is therefore not subject to the preservation rule. Since it is part of the judgment of conviction, it is reviewable on direct appeal. (People v Debo, 234 AD2d 944; People v Warren, 280 AD2d 75; People v Holmes, 294 AD2d 871; People v Eaddy, 302 AD2d 473; People v Samms, 95 NY2d 52; People v Fuller, 57 NY2d 152; People v Hernandez, 93 NY2d 261; People v Wheeler, 268 AD2d 448; People v Stevens, 91 NY2d 270; People v Bleau, 276 AD2d 131.) II. The final orders of protection issued by the court on behalf of the “designated witnesses” were beyond the scope of CPL 530.13 (4), since that statute by its own terms limits a final order of protection on behalf of a “designated witness” to a stay away order under paragraph (a). (People v Travis OO., 237 AD2d 646; People v Walker, 81 NY2d 661; People v Boston, 75 NY2d 585; People v Ryan, 82 NY2d 497; People v Robinson, 95 NY2d 179; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151.)

      Jeanine Pirro, District Attorney, White Plains (Richard L. Hecht and Lois Cullen Valerio of counsel), for respondent-appellant.
    I. The Appellate Division had no authority on a direct appeal from a judgment of conviction to entertain defendant’s claims concerning the parameters of a CPL 530.13 (4) order of protection. (Matter of Santangello v People, 38 NY2d 536; People v Callahan, 80 NY2d 273; People v Pollenz, 67 NY2d 264; People v Stephens, 55 NY2d 778; People v Stevens, 91 NY2d 270; People v Laing, 79 NY2d 166; People v De Jesus, 54 NY2d 447; People v Garris, 159 Misc 2d 586, 166 Misc 2d 362, 88 NY2d 1020; People v Franklin, 236 AD2d 556; People v Person, 256 AD2d 1232, 93 NY2d 856.) II. The terms of the orders of protection issued at sentencing do not exceed the scope of the authorizing statute (CPL 530.13 [4]). (People v Kinchen, 60 NY2d 772; People v Hale, 93 NY2d 454; People v Letterlough, 86 NY2d 259.)
   OPINION OF THE COURT

Graffeo, J.

In these cross appeals, we must determine whether orders of protection issued during a sentencing proceeding in a criminal case can be challenged on direct appeal from the judgment of conviction and, if so, whether defendant’s arguments on appeal to this Court had to be raised before the sentencing court under our preservation rule. Although we hold that the permanent orders of protection in this case were appealable as part of the judgment, we conclude that defendant’s unpreserved claims are not reviewable in this Court.

Defendant Israel Nieves was involved in an altercation in which he shot and injured two men. As a result of the incident, he was charged with criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree, reckless endangerment and two counts of assault in the first degree. The People offered evidence at a nonjury trial that defendant encountered two female friends just after the women had been ejected from a nightclub for fighting with a male patron. Armed with a loaded weapon, defendant drove the women back to the nightclub where they found the patron they had been fighting with standing outside the club with a male friend. During the street confrontation that erupted among defendant, the patron and at least one of his friends, defendant shot the patron and the male friend, causing serious injuries. Defendant then left the scene in his car but was later apprehended by the police after they saw him attempt to dispose of the handgun.

Asserting that the two men had been the aggressors and had initiated the violent confrontation, defendant presented a justification defense at his bench trial. The two women corroborated defendant’s account of the incident. The trial court acquitted defendant of the assault-related offenses but convicted him of criminal possession of a weapon in the third degree, a lesser included offense of criminal possession of a weapon in the second degree.

On October 12, 2001, defendant was sentenced as a second felony offender to a determinate term of three years incarceration, the minimum sentence available. During the sentencing proceeding, the court issued two orders of protection under CPL 530.13 (4), one for each of the men shot in the course of the incident. The statute provides that “[t]he duration of such an order shall be fixed by the court and, in the case of a felony conviction, shall not exceed the greater of: (i) five years from the date of such conviction, or (ii) three years from the date of the expiration of the maximum term of an indeterminate or the term of a determinate sentence of imprisonment actually imposed” (CPL 530.13 [4]). In this case, the orders of protection, directing defendant to “[s]tay away” from the men and to refrain from harassing them, were to expire on October 12, 2007—precisely three years from the date the sentencing court expected defendant to be released from prison on completion of his determinate sentence. Defendant raised no objection to the issuance of the permanent orders of protection.

In his direct appeal to the Appellate Division, defendant claimed for the first time that the orders of protection exceeded both the duration and the scope authorized in CPL 530.13 (4). With respect to duration, defendant noted that after he was remanded to state custody following sentencing, the Department of Correctional Services (DOCS) calculated his jail time credit, accounting for the time he had been incarcerated while the criminal action was pending. As a result of such credit, defendant’s release from prison would occur earlier than the sentencing court had expected and, if the expiration dates on the orders of protection were not adjusted, he contended that the orders would remain effective beyond the maximum time period allowed by CPL 530.13 (4). Defendant also asserted that the orders were flawed in scope because they had been issued to protect the two men he shot. Due to his acquittal on each of the assault-related, offenses, defendant argued that these individuals were not victims but were, instead, witnesses who were entitled to less protection under the statute.

The People objected to the fact that defendant was raising these issues on direct appeal, taking the position that defendant should have brought a motion in the sentencing court seeking adjustment of the orders of protection. On the merits, the People did not dispute that the orders needed to be amended to reflect the jail time credit calculation but contended that the orders were appropriate in scope because CPL 530.13 grants a court broad discretion to determine the conditions to impose on a defendant when issuing orders of protection, regardless of whether the orders protect victims or witnesses.

The Appellate Division modified the judgment, concluding that the expiration date on the orders of protection must be changed to reflect the jail time credit calculation but otherwise rejecting defendant’s remaining arguments. The Court remitted the matter to the sentencing court to issue amended orders of protection with corrected expiration dates. A Judge of this Court granted the cross applications of defendant and the People for leave to appeal.

I.

The threshold question is whether the orders of protection defendant challenges fall within the class of determinations in criminal cases that may be appealed. Appealability of determinations adverse to a defendant cannot be presumed because “a defendant’s right to appeal within the criminal procedure universe is purely statutory” (People v Stevens, 91 NY2d 270, 278 [1998] [citations omitted]). CPL 530.13 does not contain a provision addressing whether orders of protection are appealable and CPL article 450, the provision generally addressing criminal appeals, also does not explicitly reference orders of protection. But CPL 450.10 authorizes a defendant to appeal from a judgment in a criminal case, which brings up for review many of the orders and rulings that precede or are part of it.

In Stevens, this Court held that postjudgment risk level determinations under the Sex Offender Registration Act (SORA) were not appealable because they “are not a part of the criminal action or its final adjudication” (91 NY2d at 277 [citations omitted]). In contrast, in People v Hernandez (93 NY2d 261 [1999] ), we ruled that certification as a sex offender under SORA—a determination issued at the time of sentencing—was appealable as part of the judgment of conviction. In reaching that result, we noted that the Legislature mandated that SORA certification occur “upon conviction” (Correction Law § 168-d [1] [a]) and had contemplated that such a determination would be part of the final adjudication of the criminal proceedings against defendant.

Like the SORA certification at issue in Hernandez, CPL 530.13 (4) authorizes a court to issue permanent orders of protection for the benefit of victims and witnesses “[u]pon conviction of any offense.” By using this language, the Legislature signaled that orders of protection issued at sentencing are part of the final adjudication of the criminal action involving defendant. We therefore conclude that permanent orders of protection entered “[u]pon conviction” under CPL 530.13 (4) are among the orders and rulings that a defendant may challenge in an appeal from the judgment of conviction. As such, the orders in this case were subject to appellate review pursuant to CPL 450.10 and the Appellate Division did not err in declining to dismiss defendant’s appeal.

II.

Having decided that permanent orders of protection are appealable, we turn to defendant’s challenges to the contents of the orders. Because this Court’s jurisdiction is limited to review of issues of law, our first task is to assess whether the arguments raised on appeal present questions that were preserved by specific objection in the trial court. Here, defendant acknowledges that he did not object to the orders of protection at sentencing but nonetheless contends that his arguments are reviewable because his claims fall within the illegal sentence exception to the preservation requirement. We disagree.

We have recognized “a narrow exception to the preservation rule” (People v Samms, 95 NY2d 52, 56 [2000]) where a court exceeds its powers and imposes a sentence that is illegal in a respect that is readily discernible from the trial record. Commonly referred to as the “illegal sentence” exception, this rule allows this Court to review certain issues despite the absence of a timely objection at the trial court level. But not all claims arising during a sentencing proceeding fall within the exception. For example, challenges to the court’s procedures, evidentiary disputes and claims that rely on documents or facts not otherwise developed in the record must be preserved by timely objection in the sentencing court (id. at 57-58; see People v Horne, 97 NY2d 404, 414 n 3 [2002]; People v Smith, 73 NY2d 961 [1989]; People v Oliver, 63 NY2d 973 [1984]; see generally People v Gonzalez, 99 NY2d 76, 83 [2002]).

Here, although the orders of protection were issued at the sentencing proceeding, it is evident from the statutory scheme that the orders were not a part of defendant’s sentence. CPL 530.13 (4) does not characterize permanent orders of protection as a component of sentencing. Furthermore, CPL 530.13 authorizes a court to issue temporary orders during the pendency of the criminal proceeding, establishing that the Legislature could not have intended orders of protection to be punitive in nature. In fact, the provisions addressing the scope of temporary orders are substantially the same as those applying to permanent orders, suggesting the purpose of the legislation was to assist victims and witnesses (compare CPL 530.13 [1] [a], [b] with CPL 530.13 [4] [a], [b]), not to punish the accused. The legislative history of a recent amendment to CPL 530.13 indicates that the primary intent of the statute is to ensure that victims and “witnesses who have the courage and civic responsibility to cooperate with law enforcement officials are afforded the maximum protection possible” (Governor’s Mem approving L 1998, ch 610, 1998 McKinney’s Session Laws of NY, at 1485).

Further confirmation that the Legislature did not create a new sentence when it enacted CPL 530.13 (4) can be found by reference to the Penal Law provisions governing sentencing for criminal offenses. Title E of the Penal Law, entitled “Sentences,” encompasses articles 55, 60, 65, 70, 80 and 85, and comprehensively addresses sentencing alternatives, ranging from youthful offender adjudication to incarceration, restitution and reparation, and the imposition of fines. No reference is made in any of these provisions to an order of protection as a permissible sentence. In light of this statutory scheme, we conclude that an order of protection issued incident to a criminal proceeding is an ameliorative measure intended to safeguard the rights of victims and witnesses both prior to and after conviction—it is not a part of the sentence imposed.

Thus, even if the orders of protection in this case are defective as defendant argues, those defects do not render defendant’s sentence of incarceration invalid and they are not reviewable under the illegal sentence exception to the preservation requirement. Although the Appellate Division had authority to address defendant’s unpreserved challenges to the orders in the exercise of its interest of justice jurisdiction, this Court is without power to do so and we therefore may not consider defendant’s arguments on the merits.

III.

As a practical matter, although we have determined that permanent orders of protection are appealable, we note that an appeal is neither the only nor the most desirable means for resolving an expiration date issue. CPL 530.13 mandates that the duration of an order of protection be “fixed by the court” and further directs that “[a]n order of protection issued under this section shall plainly state the date that such order expires” (CPL 530.13 [4], [5]). The statute requires that any order of protection issued must be filed with law enforcement authorities to provide for effective enforcement. Needless to say, it is imperative that orders of protection contain specific and correct expiration dates to provide certainty for defendants, the protected victims and witnesses, and law enforcement authorities who may be called to enforce them.

A sentencing court cannot predict the extent of allowable jail time credit before such calculations are made by DOCS. If alerted to the fact that jail time credit will arise, however, the court can retain jurisdiction over the matter so that adjustments necessitated by subsequent events can be made as efficiently as possible. Because sentencing courts are in the best position to amend permanent orders of protection, the better practice—and best use of judicial resources—is for a defendant seeking adjustment of such an order to request relief from the issuing court in the first instance, resorting to the appellate courts only if necessary. By returning to the issuing court, defendant can expeditiously obtain correction of the orders and, even if not successful, will have created a record that will facilitate appellate review (see generally People v Kinchen, 60 NY2d 772 [1983]).

This case demonstrates the point. The only issues defendant raised on appeal related to the orders of protection. Defendant and his counsel knew at the time of sentencing that he had been incarcerated while the criminal action was pending and therefore knew he would receive jail time credit. If the defense had raised the issue at sentencing, the court would undoubtedly have directed defendant to return after DOCS calculated his jail time credit so that the orders could be amended to reflect changes in defendant’s release date, if appropriate. Had defendant sought correction of the orders in the trial court, amended orders would likely have already been issued in this case, obviating the expenditure of time and resources associated with an appeal.

Accordingly, on defendant’s appeal, the order of the Appellate Division, insofar as appealed from, should be affirmed. The People’s appeal should be dismissed upon the ground that the Appellate Division modification was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to . . . modification” (CPL 450.90 [2] [a]; People v Dercole, 52 NY2d 956 [1981]).

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

Order affirmed, People’s appeal dismissed, etc.

      . Orders issued upon conviction are characterized as “permanent” to distinguish them from the temporary orders that may be issued pursuant to CPL 530.13 (1) while the criminal action is pending.

      . Here, defendant did not take issue with the jail time credit calculation itself, a determination that could have been challenged in a civil CPLR article 78 proceeding against DOCS (see e.g. Matter of Bottom v Goord, 96 NY2d 870 [2001]).

      . After Stevens and Hernandez were decided, the Legislature amended SORA to provide the People and the defendant the right to bring a civil appeal challenging a risk level determination (see Correction Law § 168-d [3]; L 1999, ch 453, § 6).

      . The People argue that the record was inadequate to support appellate review in this case because the jail time credit documents on which defendant relied were never properly made part of the record and, due to defendant’s failure to object to the scope of the orders, the court never articulated whether it considered the subjects of the orders to be victims or witnesses. Having concluded that the preservation rule bars review in any event, we have no occasion to determine whether the record presented would have been adequate to support such review.


author: R.S. Smith, J.

text:
    [811 NE2d 19, 778 NYS2d 757]
    Joseph Bruni, Appellant, v City of New York, Respondent, et al., Defendant.
    Argued March 24, 2004;
    decided May 6, 2004

      POINTS OF COUNSEL

      Godosky & Gentile, PC., New York City (David Godosky and Richard Godosky of counsel), and Pollack, Pollack, Isaac & De Cicco (Brian J. Isaac of counsel), for appellant.
    I. The liability verdict was correct, since the Department of Environmental Protection was exclusively responsible for maintaining the catch basin and its records constituted written acknowledgment of notice pursuant to the Pothole Law. (Friedman v State of New York, 67 NY2d 271; Lopes v Rostad, 45 NY2d 617; Weiss v Fote, 7 NY2d 579; Annino v City of Utica, 276 NY 192; Holt v City of Tioga, 56 NY2d 414; Fullerton v City of Schenectady, 285 App Div 545, 309 NY 701, 305 US 980; MacMullen v City of Middle-town, 187 NY 37; Barry v Niagara Frontier Tr. Sys., 35 NY2d 629; Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362; Sherman v Robinson, 80 NY2d 483.) II. The trial court properly refused to give a comparative negligence charge. (Clifford v Dam, 81 NY 52; Delaney v Philhern Realty Corp., 280 NY 461; Rossman v La Grega, 28 NY2d 300; Manley v New York Tel. Co., 303 NY 18; Eaton v New York Cent. & Hudson Riv. R.R. Co., 195 NY 267; Loudoun v Eighth Ave. R.R. Co., 162 NY 380; Wartels v County Asphalt, 29 NY2d 372; Chiodi v Soliman, 174 AD2d 329; Perla v New York Daily News, 123 AD2d 349; Weber v City of New York, 101 AD2d 757, 63 NY2d 886.)

      Michael A. Cardozo, Corporation Counsel, New York City
      (Norman Corenthal and Kristin M. Helmers of counsel), for respondent.
    I. Prior written notice was not provided to the City of New York as required by Administrative Code of the City of New York § 7-201. Constructive or actual notice is not recognized as an exception to the requirement of prior written notice. (Holt v County of Tioga, 56 NY2d 414; Barry v Niagara Frontier Tr. Sys., 35 NY2d 629; Poirier v City of Schenectady, 85 NY2d 310; Amabile v City of Buffalo, 93 NY2d 471; Katz v City of New York, 87 NY2d 241; Woodson v City of New York, 93 NY2d 936; Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362; Brill v City of New York, 305 AD2d 525, 1 NY3d 501; MacMullen v City of Middletown, 187 NY 37; Blake v City of Albany, 48 NY2d 875.) II. The Department of Environmental Protection form and work order do not constitute a written acknowledgment within the meaning of the statute. (Laing v City of New York, 71 NY2d 912; Camenson v Town of N. Hempstead, 298 AD2d 543; Poirier v City of Schenectady, 85 NY2d 310; Cenname v Town of Smithtown, 303 AD2d 351; Levbarg v City of New York, 282 AD2d 239; Gee v City of New York, 304 AD2d 615; Meltzer v City of New York, 156 AD2d 124; Fraser v City of New York, 226 AD2d 424; Garrison v City of New York, 300 AD2d 14; Sparrock v City of New York, 242 AD2d 289.) III. To the extent that causation or creation may constitute an exception to the prior written notice law, plaintiff did not plead or adequately prove that the City of New York caused or created a defective condition. (Amabile v City of Buffalo, 93 NY2d 471; Monteleone v Incorporated Vil. of Floral Park, 74 NY2d 917; Kiernan v Thompson, 73 NY2d 840; Muszynski v City of Buffalo, 33 AD2d 648, 29 NY2d 810; Miller v City of New York, 217 AD2d 537; Shaw v City of Auburn, 91 AD2d 817, 59 NY2d 780; Parella v Levin, 111 AD2d 750; Cattani v Incorporated Vil. of Ocean Beach, 252 AD2d 533; Price v Village of Phoenix, 222 AD2d 1079; Carbo v City of New York, 275 AD2d 439.) IV. The trial court improperly failed to include an instruction on comparative negligence, therefore requiring a new trial in the event of reversal. (Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Cohen v Hallmark Cards, 45 NY2d 493; Orellana v Merola Assoc., 287 AD2d 412.) V The damages were excessive, and in the event of a reversal, the matter should be remitted for a determination of the issue of damages by the Appellate Division.
   OPINION OF THE COURT

R.S. Smith, J.

The principal issue presented by this case is whether certain internal documents prepared by the New York City Department of Environmental Protection (DEP) constituted a “written acknowledgement from the city” within the meaning of the City’s “Pothole Law” (Administrative Code of City of NY § 7-201 [c]). We hold that the documents did constitute such an acknowledgement, and therefore we reverse the Appellate Division order dismissing plaintiffs complaint. We also hold that Supreme Court erred in failing to submit the issue of plaintiffs comparative negligence to the jury.

Facts and Procedural History

On July 10, 1997, someone contacted the Central Complaint Bureau of the Bureau of Sewers, which is a part of DEip about a problem at 11th Avenue and 62nd Street in Brooklyn. According to the complaint ticket generated as a result of the call, the problem was a “c/b sxjnken/damaged/raised affecting street.” “C/B” is an abbreviation for “catch basin,” which is essentially an open box set into the street and covered by a metal grate. Its purpose is to collect water. The maintenance of catch basins is DEP’s responsibility.

Expert testimony at trial explained how a defective catch basin could affect the street. The grate covering a catch basin is held in place by a metal frame, which sits on bricks that make up the upper portion of the catch basin walls. The brick walls are wider than the frame, and therefore the bricks also support a part of the adjacent pavement. If bricks are removed or fall away, the pavement will be unsupported, and any weight placed on it will cause that portion of the street to cave in.

The DEP document reflecting the July 10 complaint was forwarded to Samuel Gomez, a Bureau of Sewers supervisor, who inspected the catch basin and adjacent area on July 18, 1997. Gomez filled out a “Foreman’s Report” in which he stated: “Repair defective C/B unit ... is missing bricks on the wall stock due to caving. Loe. safe at this time.” Gomez testified that “caving” meant “a hole in the street.” He also testified that “Loe. safe at this time” meant that he had set up a sawhorse and traffic cones around the hole. Gomez’s report included a sketch, showing that the problem area was located in the street next to the sidewalk.

Gomez testified that it was his practice to refer some complaints about defects in the roadway to the New York City Department of Transportation (DOT), which is generally responsible for street repairs. In this case, however, since the catch basin was defective, Gomez determined that DEP, not DOT, would be responsible for the repair. He also determined that the problem required a major repair—beyond the sort of routine maintenance that he personally might handle—and he therefore filled out another form, a “Request for Repairs Work Order,” also dated July 18, 1997. The request was approved on July 23, 1997, but DEP did not do the work until September 16. DOT did not need to be, and was not, involved at any stage in identifying or remedying the problem.

Plaintiff lived at 11th Avenue and 67th Street, five blocks from the catch basin. On August 26, 1997—39 days after Gomez inspected the site and prepared his report and work order, and 21 days before the hole was repaired—plaintiff left his apartment before sunrise and walked to a grocery store on 61st Street between 12th and 13th Avenues. As was his custom, he took a slightly indirect route to the store, in order to pass by a church which he found to be “an interesting structure.” At the grocery store, plaintiff discovered that he had left his wallet home and set out to retrieve it. On his homeward journey, he chose to take a different route because it was “a little shorter,” and thus found himself walking on 11th Avenue between 61st and 62nd Streets, an area where he had never walked in the dark before.

The lighting was poor, and plaintiff therefore walked in the middle of 11th Avenue, where there was some illumination from a nearby train station. At 11th Avenue and 62nd Street the lighting got better, and plaintiff decided to go up on the sidewalk. As he crossed toward the corner of 11th Avenue and 62nd Street he was “looking straight ahead” and, as a result, did not see the hole adjacent to the catch basin until he stepped in it. The sawhorse and traffic cones that Gomez said he put around the hole on July 18 were not present.

Plaintiff suffered a broken jaw and other injuries, and sued the City for negligence. Supreme Court denied the City’s motion for a directed verdict based upon the Pothole Law, and also denied the City’s request for a jury charge on comparative negligence. The jury returned a verdict for plaintiff in the amount of $1.6 million.

Supreme Court entered judgment in accordance with the verdict, but the Appellate Division reversed and dismissed the complaint, holding that “the intra-departmental work order submitted by a supervisor with the NYCDEP . . . does not constitute a ‘written acknowledgement from the city’ of the defective condition within the meaning of the Pothole Law . . . (302 AD2d 545, 546 [2003].) We granted leave to appeal and now reverse.

Discussion

A. The Pothole Law

The Pothole Law provides in relevant part:

“2. No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any street, highway, bridge, wharf, culvert, sidewalk or crosswalk, or any part or portion of any of the foregoing including any encumbrances thereon or attachments thereto, being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice, or where there was previous injury to person or property as a result of the existence of the defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a city agency, or there was written acknowledgement from the city of the defective, unsafe, dangerous or obstructed condition, and there was a failure or neglect within fifteen days after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe. . . .
“4. Written acknowledgement shall be given by the department of transportation of all notices received by it.” (Administrative Code § 7-201 [c].)

Thus paragraph (2) of the law lists three alternative prerequisites to an action: (1) “written notice . . . actually given to the commissioner of transportation” or his designee; (2) “previous injury to person or property . . . and written notice . . . given to a city agency”; or (3) “written acknowledgement from the city of the defective, unsafe, dangerous or obstructed condition.” Plaintiff here relies on the third alternative, contending that the DEP documents described above constituted “written acknowledgement from the city.” The City argues that the documents cannot be such an acknowledgement because they “do not evince an awareness by the City of a hole in the street”; because they originate with DEI] not DOT; and because they are internal documents.

We reject all three of the City’s arguments and hold that a written statement showing that the city agency responsible for repairing a condition had first-hand knowledge both of the existence and the dangerous nature of the condition is an “acknowledgement” sufficient to satisfy the Pothole Law.

The City’s first argument, that the DEP’s documents do not show that the City knew there was a hole in the street, is frivolous. The report prepared by Gomez based on his personal observation specifically refers to “caving,” which Gomez testified meant “a hole in the street.” Gomez’s work order called for the use of “Cold Patch”—a reference, according to expert testimony, to “coal patch,” which is commonly used to replace asphalt. The sketch in Gomez’s report shows that the problem area was in the street. The report also states: “Loc[ation] safe at this time”—which meant, according to Gomez’s testimony, that he had protected the area with a sawhorse and traffic cones. Thus the documents show beyond any question that the City was aware both that there was a hole in the street and that it was dangerous.

The issue of whether the “acknowledgement” referred to in paragraph (2) of the Pothole Law must be from DOT was raised, but not decided, in our only previous case dealing with the “acknowledgement” provision of paragraph (2), Laing v City of New York (71 NY2d 912 [1988]). That case concerned a crack in the sidewalk. The plaintiff in Laing claimed that a tree inspection report of the Department of Parks and Recreation, on which the word “Cracked” appeared on the line for “Sidewalk Conditions,” was an “acknowledgement from the city” within the meaning of the Pothole Law. (Id. at 914.) We rejected the claim on the ground that “[t]he tree inspection report . . . was completed by the Parks Department in connection with tree-pruning, not in connection with any sidewalk condition.” (Id.) We added: “We thus do not reach the question whether a ‘written acknowledgement from the city’ under the Pothole Law must come only from the Department of Transportation . . . {Id.)

This case is the opposite of Laing in a key respect: The documents involved in this case were prepared in connection with the hole in the street of which plaintiff complains. DEf^ which prepared the documents, was responsible for fixing the hole— and it did fix it, after plaintiffs accident, without giving notice to DOT or involving DOT in any way. Thus this case presents the question not reached in Laing-. whether the “written acknowledgement” contemplated by paragraph (2) can ever come from an agency other than DOT. We hold that it can where, as here, that other agency is performing the function (normally performed by DOT) of remedying an unsafe condition in the roadway.

The language of paragraph (2) does not support the theory that “written acknowledgement from the city” means “written acknowledgement from DOT” in all cases. The first of the three alternatives listed in paragraph (2) of the Pothole Law expressly requires written notice “to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice.” The third alternative could have used parallel language—“acknowledgement from the commissioner of transportation or any person or department authorized by the commissioner to give such acknowledgement”—but it refers to “acknowledgement from the city” instead. The language thus implies that the category of entities which can give an acknowledgement is larger than the category which can receive notice.

Nor would it serve the purpose of the “written acknowledgement” requirement to hold that acknowledgements can come only from DOT. Clearly, the Pothole Law was designed with DOT in mind. The City concedes, however, that in certain cases—such as this pavement cave-in—DOT is not responsible for the repair. We cannot conclude that the City Council intended to shield the City from liability in all such cases. While the purpose of the acknowledgement provision is not explained in the legislative history, we interpret it as permitting a lawsuit where there is documentary evidence showing, as clearly as written notice to DOT would show, that the City knew of the hazard and had an opportunity to remedy it. That purpose is fulfilled by a written acknowledgement from the responsible agency showing that it had knowledge of the condition and the danger it presented. The purpose is no less served in the exceptional case where the responsible agency is one other than DOT.

Nor do we accept the City’s argument that an internal document cannot constitute an “acknowledgement.” The City bases this argument on definitions it finds in law dictionaries and in Willis v Mott (36 NY 486, 491 [1867]), which suggest that “acknowledgement” is a synonym for admission, confirmation, concession, recognition or avowal. Willis v Mott says that one meaning of “acknowledge” is “to declare openly.” (Id.) But these are not the only possible definitions of “acknowledgement”; one of the definitions of “acknowledge” in Merriam-Webster’s Collegiate Dictionary (10th ed 1993) is simply “to take notice of.” And in any event, the definitions the City relies on do not necessarily imply that internal documents cannot be acknowledgements. There is no reason why employees of a city agency may not admit, confirm, concede, recognize or avow something to other employees of the same agency. One of the definitions of “acknowledge” quoted by the City—“to recognize one’s acts, and assume the responsibility therefor” (Black’s Law Dictionary 21 [5th ed 1979])—is a reasonable description of what the DEP documents at issue in this case do.

We find the purpose of the law more helpful than dictionaries in deciding the meaning to be given “acknowledgement” in this context. As we said above, the “acknowledgement” alternative in paragraph (2) of the Pothole Law appears to be designed to make written notice to DOT unnecessary where there is documentary evidence that serves the same function—to demonstrate that the responsible city agency knew of the hazard and had an opportunity to remedy it. This purpose can be served as well by an internal document as an external one.

In short, we hold that the documents relied on by plaintiff satisfy the “acknowledgement” requirement of paragraph (2) of the Pothole Law. The Appellate Division’s dismissal of the complaint, which was based on a contrary holding, should therefore be reversed.

B. Comparative Negligence

The City argued in the Appellate Division both that the case should be dismissed under the Pothole Law and that, if it were not dismissed, a new trial should be ordered because of Supreme Court’s failure to charge comparative negligence. The Appellate Division accepted the first of these arguments and did not have to reach the second. Since we reverse on the first issue, we do reach the second, and find that we agree with the City’s contention.

The issue of negligence, whether of the plaintiff or defendant, is usually a question of fact. It should be submitted to the jury if there is a valid line of reasoning and permissible inferences from which rational people can draw a conclusion of negligence on the basis of the evidence presented at trial. (Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 517 [1980].) Here, there are at least two ways in which a reasonable jury could infer from the evidence that plaintiff failed to exercise due care. First, a jury could conclude that a reasonable person in plaintiffs position would not have chosen to walk in darkness a route he had never walked at night before, when a more familiar, only slightly longer, route was available. Secondly, a jury could conclude that plaintiff, walking in an unfamiliar, ill-lighted area, should not have been looking “straight ahead” but should have been attentive to the ground in front of his feet. We do not suggest that those are the only possible grounds on which a jury might find that plaintiff failed to exercise due care; nor do we suggest that the facts compel a finding of negligence by plaintiff. We do hold, however, that the jury should have been asked whether plaintiff was negligent, and if so to what extent his negligence contributed to causing the accident.

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

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

Order reversed, etc.

      . Gomez’s report seems to indicate that the hole in the street caused the catch basin wall to be missing bricks. However, an engineer called by plaintiff testified without contradiction that the normal course of events would be the other way around—the loss of bricks would cause the street to cave in.

      . The City says it is unnecessary to reach the question of whether an “acknowledgement” sufficient to satisfy the Pothole Law can come only from DOT, though it implies that the answer to the question is yes. The City does argue that DEP work orders, by their nature, cannot qualify as acknowledgements because their function is to initiate sewer repairs, not roadway repairs.

      . The Appellate Division also did not reach the question of whether the $1.6 million damage award was excessive. That question is moot in light of our decision.