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

text:
    [947 NE2d 1155, 923 NYS2d 377]
    The People of the State of New York, Respondent, v Ollman Lopez, Appellant.
    Argued January 6, 2011;
    decided February 22, 2011

      POINTS OF COUNSEL

      Legal Aid Society, New York City (Svetlana M. Kornfeind and Steven Banks of counsel), for appellant.
    Appellant’s statement was introduced at trial in violation of his right to counsel, where appellant was in continuous custody on a pending drug case on which he had an attorney, but the detective who was investigating an unrelated homicide deliberately avoided asking appellant about his possible representation in the custodial case before eliciting a waiver of his rights. (People v Hobson, 39 NY2d 479;
      People v Rogers, 48 NY2d 167; People v Burdo, 91 NY2d 146; People v Steward, 88 NY2d 496; People v Bing, 76 NY2d 331; People v Kazmarick, 52 NY2d 322; People v Cunningham, 49 NY2d 203; People v Carranza, 3 NY3d 729; People v Garofolo, 46 NY2d 592; People v Pinzon, 44 NY2d 458.)

      Daniel M. Donovan, Jr., District Attorney, Staten Island (Morrie I. Kleinbart of counsel), for respondent.
    Defendant’s state constitutional right to counsel was fully respected. (People v Burdo, 91 NY2d 146; People v Arthur, 22 NY2d 325; People v Samuels, 49 NY2d 218; People v West, 81 NY2d 370; People v Cunningham, 49 NY2d 203; People v Hobson, 39 NY2d 479; People v Cohen, 90 NY2d 632; People v Rogers, 48 NY2d 167; People v Robles, 72 NY2d 689; People v Kazmarick, 52 NY2d 322.)
   OPINION OF THE COURT

Graffeo, J.

Under New York’s indelible right to counsel rule, a defendant in custody in connection with a criminal matter for which he is represented by counsel may not be interrogated in the absence of his attorney with respect to that matter or an unrelated matter unless he waives the right to counsel in the presence of his attorney (see People v Rogers, 48 NY2d 167 [1979]). In this case, we must determine whether the rule applies even if the interrogator is unaware that an incarcerated defendant is represented by an attorney. We conclude that if it is reasonable for an interrogator to suspect that an attorney may have entered the custodial matter, there must be an inquiry regarding the defendant’s representational status and the interrogator will be charged with the knowledge that such an inquiry likely would have revealed.

I

In early 2002, Hamoud Thabeat was murdered in his Staten Island bodega. The case remained unsolved for some time until an individual came forward and informed the police that defendant Oilman Lopez had shot Thabeat. The informant explained that, shortly after the shooting, he was talking to a group of young men in the neighborhood about this incident. He claimed that, during the conversation, defendant had laughed and stated that he had shot the store owner. The informant further identified defendant (whom he had known for years) from a photo array.

After receiving this information, the investigating officer, Detective Mattel, interviewed one of the young men who had been present during the conversation reported by the informant. This individual recalled that, on the day of the killing, either defendant or Jonah Alston had suggested that they rob a store. Later that day, defendant admitted to his friends that he had shot the store owner. Another acquaintance of defendant who had been with him that day told Mattel that Alston claimed defendant had killed Thabeat and that defendant confirmed that he was the shooter. Based on these interviews, Mattel spoke to Alston, who confessed in a videotaped interview that he had accompanied defendant to the bodega to commit a robbery and that defendant had shot Thabeat. The other young men who cooperated with the police were not involved in the underlying crime.

Detective Mattel eventually learned that defendant was incarcerated in Pennsylvania on a drug charge. The Pennsylvania authorities told Mattel that defendant was in custody because he was unable to post his $10,000 bail. Mattel traveled to the correctional facility where defendant was jailed to speak to him about the Staten Island homicide. Mattel was not informed about the details of the Pennsylvania crime and he did not inquire about them. Unbeknownst to the detective, defendant was represented by an attorney in connection with the Pennsylvania offense.

When allowed to meet with defendant, Detective Mattel issued Miranda warnings to him, advised defendant that he did not want to discuss the Pennsylvania matter and indicated that he was investigating the Staten Island murder. Mattel inquired if defendant wanted to speak to an attorney about the New York case and defendant responded that he did not. In the course of the interview, Mattel played a portion of Alston’s taped confession, after which defendant acknowledged that he had been involved in the robbery but claimed that Alston was the shooter. Defendant signed a written statement to that effect.

After Mattel’s interview and while defendant remained incarcerated, he discussed his role in the Staten Island murder with another inmate. Defendant disclosed to that inmate that he had shot the deli owner during the botched robbery. Defendant further stated that he told Detective Mattel that his accomplice was the shooter because he planned to use his sister as an alibi witness, intending to claim that he was at her house when Thabeat was shot. The inmate related this conversation to his lawyer and this information was eventually provided to the New York prosecutor handling the Staten Island matter.

For his role in the killing of Thabeat, defendant was indicted for felony murder in the second degree, intentional murder in the second degree, three counts of attempted robbery in the first degree and criminal possession of a weapon in the second and third degrees. Defendant moved to suppress his confession to Detective Mattei, asserting that his right to counsel had been violated when Mattei questioned him about the Staten Island murder without first obtaining a waiver of his right to counsel in the presence of his Pennsylvania attorney. During the suppression hearing, Mattei testified that he did not know that a lawyer was representing defendant on the Pennsylvania charge, nor did he ask about it. Supreme Court denied defendant’s motion, concluding that the right to counsel did not attach because Mattei lacked actual knowledge of the attorney’s involvement in the Pennsylvania matter. Following a jury trial, defendant was convicted of intentional murder, felony murder, attempted robbery in the first degree and criminal possession of a weapon in the second degree. He was sentenced to a prison term of 25 years to life.

The Appellate Division affirmed the conviction (65 AD3d 1166 [2d Dept 2009]), holding that, although defendant was represented by a lawyer on the charge for which he was in custody in Pennsylvania, the indelible right to counsel was not implicated because the interviewing detective was not aware that defendant had a lawyer in Pennsylvania. A Judge of this Court granted leave to appeal (13 NY3d 908 [2009]) and we now affirm on different grounds.

II

Relying on People v Burdo (91 NY2d 146 [1997]), defendant contends that his confession should have been suppressed because he was in police custody when Detective Mattei interviewed him, his indelible right to counsel had attached upon assignment of a lawyer on the Pennsylvania charge and Mattei did not secure a valid waiver of that right before questioning him. The People disagree and maintain that the right to counsel did not attach because Mattei did not have actual knowledge that defendant was represented on the Pennsylvania matter. The People also assert that recognition of a right to counsel under these circumstances will resurrect the discredited “derivative right to counsel” rule of People v Bartolomeo (53 NY2d 225 [1981]).

New York has long viewed the right to counsel as a cherished and valuable protection that must be guarded with the utmost vigilance (see e.g. People v Harris, 77 NY2d 434, 439 [1991]). Arising from the due process guarantee in our State Constitution, the entitlement to effective assistance of counsel and the privilege against compulsory self-incrimination, the right to counsel is referred to as “indelible” because, once it “attaches,” interrogation is prohibited unless the right is waived in the presence of counsel (see People v Bing, 76 NY2d 331, 338-339 [1990]). We have explained that attachment occurs when (1) a person in custody requests the assistance of an attorney or a lawyer enters the case or (2) a criminal proceeding is commenced against the defendant by the filing of an accusatory instrument (see People v West, 81 NY2d 370, 373-374 [1993]). We are concerned only with actual representation for the purposes of this appeal.

When an attorney enters a case to represent the accused, the police may not question the accused about that matter regardless of whether the person is in police custody (see People v West, 81 NY2d at 375). If, however, the police seek to question the suspect about a matter that is not related to the case that the attorney is handling, different rules apply (People v West, 81 NY2d at 377). In the seminal case of People v Rogers (48 NY2d 167 [1979]), we established that an individual who is in custody for an offense and is represented by counsel on that case may not be questioned about any matter—related or unrelated to the crime for which there is legal representation—unless the accused validly waives the right to counsel (see People v Rogers, 48 NY2d at 169). Simply put, the Rogers rule states that the indelible right to counsel activates the moment that an attorney becomes involved (see id. [“once an attorney has entered the proceeding ... a defendant in custody may not be further interrogated in the absence of counsel”]; People v Steward, 88 NY2d 496, 501 [1996] [“Rogers establishes and still stands for the important protection and principle that once a defendant in custody on a particular matter is represented by or requests counsel, custodial interrogation about any subject, whether related or unrelated to the charge upon which representation is sought or obtained, must cease”]). The issue of the extent of police knowledge was not addressed in Rogers because the interrogating officers in that case had been directly informed by Rogers’ lawyer that they could not question him after he was taken into custody (see 48 NY2d at 170).

In People v Burdo (91 NY2d 146 [1997]), we applied the Rogers rule to a situation where the defendant was incarcerated for rape, had been assigned an attorney for that charge and the police were aware of counsel’s involvement. The police sought to question the defendant about a missing person—a matter unrelated to the rape—and, outside the presence of his attorney, he declined to consult a lawyer about the new matter. We held that Rogers prohibited the police from inquiring about the missing person, specifically noting that, as in Rogers, the police were “fully aware” that the defendant was represented on the matter for which he was in custody (id. at 150). The case now before us is distinguishable from these precedents because Detective Mattei testified that he was not aware that defendant was represented by an attorney on the Pennsylvania drug charge.

In deciding whether Rogers and Burdo should direct the outcome here, we are mindful of several overarching principles that have guided the development of New York’s indelible right to counsel rules. Our jurisprudence in this area “has continuously evolved with the ultimate goal of ‘achieving a balance between the competing interests of society in the protection of cherished individual rights, on the one hand, and in effective law enforcement and investigation of crime, on the other’ ” (People v Grice, 100 NY2d 318, 322-323 [2003], quoting People v Waterman, 9 NY2d 561, 564 [1961]). Consequently, the parameters of the indelible right to counsel are defined “through the adoption of ‘pragmatic and . . . simple[ ] test[s]’ (People v Failla, 14 NY2d 178, 181 [1964]) grounded on ‘common sense and fairness’ (People v Bing, 76 NY2d at 339)” (People v Grice, 100 NY2d at 323) in order to “provid[e] an objective measure to guide law enforcement officials and the courts” (People v Robles, 72 NY2d 689, 699 [1988]).

For over three decades, “Rogers has stood as a workable, comprehensible, bright line rule, providing effective guidance to law enforcement while ensuring that it is defendant’s attorney, not the police, who determines which matters are related and unrelated to the subject of the representation” (People v Burdo, 91 NY2d at 151). The Rogers rule is eminently straightforward: when an attorney undertakes representation in a matter for which the defendant is in custody, all questioning is barred unless the police obtain a counseled waiver. Rogers therefore requires inquiry on three objectively verifiable elements— custody, representation and entry (see e.g. People v Burdo, 91 NY2d at 149; People v Steward, 88 NY2d at 502; People v West, 81 NY2d at 377; People v Bing, 76 NY2d at 350).

In this case, defendant was in custody pending prosecution on Pennsylvania charges and he was represented by a Pennsylvania attorney who had entered that case. The only remaining question is whether Detective Mattei should have been deemed chargeable with knowledge of that representation and entry. In People v Kazmarick (52 NY2d 322, 328 [1981]), we recognized that there may be circumstances in which “law enforcement officials may ... be chargeable with knowledge that [a] defendant is in fact represented by counsel ... on an unrelated charge, in such a way as to cut off their rights to interrogate.” More recently, we explained that “either actual or constructive knowledge by interrogating police officers suffices to perpetuate the indelible right to counsel once attached” (People v Bongarzone-Suarrcy, 6 NY3d 787, 789 [2006]). We have also applied a constructive knowledge rationale in a situation where an attorney communicated with the police agency that has custody of a suspect, but the interrogating officer was not aware of that communication (see People v Pinzon, 44 NY2d 458, 463-464 [1978]; see generally People v Carranza, 3 NY3d 729, 730 [2004]).

We believe that imputation of constructive knowledge is appropriate under the facts of this case as well. In our view, society’s interest in protecting individual constitutional rights would be devalued if the police were allowed to question an incarcerated individual under circumstances where it would be reasonable for the interrogating officer to expect that it is highly likely that the accused has an attorney on the custodial matter. Permitting a police officer to remain deliberately indifferent— avoiding any inquiry on the subject notwithstanding the nature of the custodial charges and the likelihood that a lawyer has entered the matter—in order to circumvent the protection afforded by Rogers is not only fundamentally unfair to the rights of the accused, it further undermines the preexisting attorney-client relationship that serves as the foundation of the Rogers rule. A contrary holding would allow a police officer who is fairly certain that an attorney is involved in the custodial matter to flout Rogers by claiming that he was not fully confident about a lawyer’s involvement. For these reasons, we hold that an officer who wishes to question a person in police custody about an unrelated matter must make a reasonable inquiry concerning the defendant’s representational status when the circumstances indicate that there is a probable likelihood that an attorney has entered the custodial matter, and the accused is actually represented on the custodial charge.

The circumstances of this case readily demonstrate the necessity of this principle. Detective Mattel was aware of several facts that would have led a police officer to reasonably conclude that it was highly likely that defendant had legal representation on the Pennsylvania charge. Specifically, defendant was incarcerated on a drug charge for transporting narcotics into that state and was being held in lieu of $10,000 bail. The fact that bail had been set indicated that defendant had been arraigned in court on the charge. Arraignment undoubtedly signified that defendant’s right to counsel had attached—whether under the Sixth Amendment to the United States Constitution (see e.g. Fellers v United States, 540 US 519, 523 [2004]), Pennsylvania law (see e.g. Commonwealth v Gwynn, 596 Pa 398, 410, 943 A2d 940, 948 [2008]) or the New York Constitution (see HurrellHarring v State of New York, 15 NY3d 8, 20 [2010])—and made it probable that defendant had been assigned or had retained an attorney, which was true in this case. Under these circumstances, Mattel should have resolved any doubt that may have remained by inquiring about defendant’s representational status, rather than avoiding the topic, before commencing interrogation about the Staten Island murder and eliciting the incriminating statements. Since it is likely that a reasonable inquiry would have revealed counsel’s involvement, the detective is chargeable with that knowledge and defendant’s indelible right to counsel was violated because the questioning was not preceded by a valid waiver.

Our holding does not, as the People claim, resurrect People v Bartolomeo (53 NY2d 225 [1981]). That decision expanded the prohibition on interrogation regarding unrelated matters by creating a “derivative right to counsel” that attached to a new criminal offense whenever a suspect was represented by counsel in connection with unrelated pending charges and regardless of whether the suspect was in custody on the pending charges. The derivative right was fictional because it presumed the existence of an attorney-client relationship in connection with the new, unrelated matter even though the accused was not actually represented by an attorney in the new case. Because Bartolomeo proved to be unworkable, it was overruled by People v Bing (76 NY2d at 350) and the derivative right no longer exists (see People v Steward, 88 NY2d at 500). In contrast, here, defendant was in custody for an offense for which he had representation and, as such, his right to counsel on that crime had “attached indelibly” (People v West, 81 NY2d at 379). Thus, in the absence of a valid waiver, Rogers precluded questioning about the unrelated homicide while defendant remained in custody on the Pennsylvania charge.

Accordingly, we conclude that defendant’s indelible right to counsel was violated because the discussion about the Staten Island murder occurred while he was in custody for the Pennsylvania offense, the interrogating detective is chargeable with knowledge that an attorney had entered the case to represent him on the Pennsylvania matter and a valid waiver was not secured from defendant before questioning commenced.

Ill

The concurrence expresses the view that this Court’s right to counsel jurisprudence is too complicated and that we should limit Rogers to its facts. It recommends that the better course would be to overrule Bing, West, Steward, Burdo and the many cases that have relied on those decisions—and return to the more restrictive rule articulated in People v Taylor (27 NY2d 327 [1971]). Under Taylor, the police were allowed to interrogate a person who was in custody and represented by an attorney who had entered the case about any matter unrelated to the custodial charge.

We disagree with our concurring colleagues because Rogers offered several persuasive reasons for recognizing a right to counsel that extended beyond Taylor. The Rogers rule provides an extra measure of protection to the attorney-client relationship when a defendant is in custody on a represented charge in recognition of the fact that the right to counsel is “a shield against the awesome and sometimes coercive force of the State” (48 NY2d at 173). Moreover, Rogers explained that “it is the role of [the] defendant’s attorney, not the State, to determine whether a particular matter will or will not touch upon the extant charge” and “the attorney’s function cannot be negated by the simple expedient of questioning in his absence” (id.). The concurrence does not question the validity of this reasoning.

The path we have taken in right to counsel cases may have been bumpy at times and the concurrence understandably questions the continuing validity of some of the rationales used by this Court in Rogers, Bartolomeo and Bing. But the conclusion we reach today is consistent with the holdings in those decisions and our other undisturbed precedent.

Rogers was correctly decided because the defendant was in custody for an offense for which he was actually represented by a lawyer who had entered the case and communicated his representation to the police. In contrast, in Bartolomeo the defendant was in custody for an offense but he did not have counsel on that charge. He did, however, have legal representation in connection with a prior, unrelated criminal case. We erred in Bartolomeo by inferring a fictional attorney-client relationship on the matter for which he was in custody. The feature that distinguishes the two cases is whether the defendant was in custody for an offense with actual representation on that charge and notification to the police.

The issue of police custody was also a pivotal concern in Bing and Cawley (a companion case to Bing). Neither defendant was in custody for the offense for which an attorney had entered. Bing and Cawley were under arrest for being fugitives from justice but they were not represented by counsel on that matter when the incriminating statements were elicited. Both cases are distinguishable from this appeal because defendant Lopez was in custody for the Pennsylvania offense and an attorney had entered that proceeding before Detective Mattei began the interrogation. If defendant had made bail on the Pennsylvania charge and been released, or if he had been released and was arrested on a fugitive warrant for failure to appear, he could have been questioned about an unrelated matter, just as Bing and Cawley were.

As we have explained, both Rogers and today’s decision are premised on the fact that the right to counsel was violated on the particular matter for which the defendant was in custody. In Rogers, the defendant was in custody for a robbery and his right to counsel on that charge was violated when the police continued to question him and elicited the incriminating statement. So too, in Burdo, the defendant was in custody for rape when he was questioned about a missing person and we held that his right to counsel on the rape (not the murder) had been violated. Similarly, defendant in this case was in custody for the Pennsylvania drug charge and his right to counsel on that offense (not the murder) was violated when Detective Mattei questioned him about the Staten Island homicide.

In sum, the holding here is consistent with Bing and Cawley, and we see no compelling basis to overrule Rogers and its progeny.

IV

A violation of the indelible right to counsel does not automatically constitute reversible error. Instead, it is reviewed under the harmless error doctrine for constitutional violations (see e.g. People v West, 81 NY2d at 373; People v Krom, 61 NY2d 187, 201 [1984]; People v Flecha, 60 NY2d 766, 767 [1983]; People v Sanders, 56 NY2d 51, 66-67 [1982]; People v Rogers, 48 NY2d at 174). Errors of this type “are considered harmless when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict” (People v Douglas, 4 NY3d 777, 779 [2005]; see People v Crimmins, 36 NY2d 230, 240-241 [1975]). If no such possibility exists, the error is deemed to be harmless beyond a reasonable doubt (see People v Goldstein, 6 NY3d 119, 129 [2005]).

Here, there is no reasonable possibility that the introduction of defendant’s improperly obtained statement to Detective Mattei affected the conviction in light of the other evidence that overwhelmingly established that defendant murdered Hamoud Thabeat. The People’s proof demonstrated that defendant had spontaneously and unequivocally told at least three acquaintances that he shot Thabeat during the failed robbery. None of these individuals had any apparent motive to lie about defendant’s admissions. The information these individuals conveyed to law enforcement was independently obtained and their testimony was strongly corroborative.

Particularly, three of the young men who had been with defendant on the day the shooting occurred provided the jury with consistent and specific details about their activities that day (e.g., drinking alcohol, smoking marijuana and playing video games, as well as information regarding who had entered and exited the house). Two of them testified that defendant had confessed to shooting two bullets at Thabeat and remarked that nothing was stolen from the store. One of the men further testified that defendant said he had used a revolver to shoot Thabeat in the chest. None of these companions had been with defendant at the scene of the shooting.

Defendant’s admissions to his friends were confirmed by other evidence at trial. A medical examiner testified that Thabeat had been hit by two bullets and that the fatal shot was to the chest. Police officers who responded to the crime scene testified that nothing had been disturbed in the store and money remained in the cash register. A ballistics expert concluded that the recovered bullet was a .38 caliber and “definitely” had been fired from a revolver. Expert testimony explained that the lack of bullet casings at the scene of the killing was because revolvers, unlike semi-automatic handguns, do not automatically eject shell casings when fired. All of this forensic evidence supported the testimony of defendant’s companions.

In addition, while defendant was incarcerated in Pennsylvania, he confessed to another inmate that he had killed the store owner and had lied to the police when he told them that Alston was the shooter. He also described to the inmate how he planned to use his sister to establish a false alibi. The only conceivable source of this information had to be defendant himself.

Considered in its totality, this evidence was overwhelming and it effectively narrowed the scope of the central question that was before the jury: whether defendant or Jonah Alston was the shooter. In this regard, defendant’s jailhouse statement to Detective Mattei was, in a sense, partially exculpatory since he claimed that Alston murdered Thabeat and that he was merely a passive participant in the robbery gone awry. Since the jury found defendant guilty of shooting Thabeat, it necessarily disbelieved what he told Mattei and thereby diminished the importance of the improperly obtained statement in the overall context of the case. Moreover, defendant did not present to the jury any theory that cast significant doubt upon his guilt. For all of these reasons, we find that the violation of defendant’s indelible right to counsel was harmless beyond a reasonable doubt.

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

Smith, J. (concurring).

Over the last several decades, we have described the New York right to counsel that we have created as “pragmatic,” “simple,” “grounded on ‘common sense and fairness’,” “workable” and “comprehensible.” The majority quotes all these descriptions today and adds that the law is “eminently straightforward” (see majority op at 381, 382, 383 [and the authorities there cited]).

I think we protest too much. In reality, our right to counsel jurisprudence is so complicated that it is almost incomprehensible, and it regularly produces unjust results. This case is an example. The majority, struggling to harmonize our cases—an attempt which, as I will try to show, does not succeed—is led to the conclusion that Detective Mattei infringed defendant’s right to a lawyer. But it is hard to imagine any case in which a prisoner’s waiver of that right could be more free of coercion, deception or any other form of unfairness. The majority finds the waiver bad because Mattei should have realized that a Pennsylvania lawyer was representing defendant on a drug charge completely unrelated to the murder Mattei was investigating; in common sense, the Pennsylvania case should have no bearing at all on the validity of defendant’s waiver.

The majority’s attempt to reconcile the cases fails because no satisfactory reconciliation is possible. I therefore propose that we simplify our law by limiting People v Rogers (48 NY2d 167 [1979]) to its facts, and returning to the old-time religion of People v Taylor (27 NY2d 327 [1971]). Taylor, unlike Rogers and more recent cases, did establish a simple, workable rule: that a suspect’s relationship with a lawyer in one case does not bar police questioning of him about another, unrelated case.

The facts of Rogers, the case in which we abandoned the Taylor rule, were these: Defendant was arrested as a suspect in a robbery. After he had been questioned about that robbery for two hours, a lawyer entered the case on his behalf and asked the police to stop questioning him. They did not stop, but changed the subject: They questioned him—for four more hours, in which he was manacled to a chair—about “unrelated activities in which he had not participated” (48 NY2d at 170). After this, the defendant, for reasons unclear in the Rogers opinion, “uttered an inculpatory statement” about the original crime (id.).

It is easy to see why we did not like what happened in Rogers, and I would have no quarrel with a rule excluding a defendant’s statement on facts like those; perhaps a rule providing that, where a defendant is represented by counsel on a particular matter, any statement about that matter that is elicited by police questioning in counsel’s absence is inadmissible. But in Rogers, unfortunately, we went much further, saying that “once a defendant is represented by an attorney, the police may not elicit from him any statements, except those necessary for processing or his physical needs” (48 NY2d at 173). Under this rule, statements about a new case in which defendant never had a lawyer can be excluded.

This has led—and is still leading, more than 30 years later—to much trouble and confusion. In People v Bartolomeo (53 NY2d 225, 229 [1981]) we held that

“[w]here to the knowledge of the interrogating officer a suspect being questioned had been arrested by the same law enforcement agency nine days previously on an unrelated charge, statements obtained in consequence of the interrogation must be. suppressed if in fact the suspect is represented by an attorney with respect to the unrelated charge even though the fact of such representation is unknown to the officer.”

Nine years later, we decided that we had gone too far, and overruled Bartolomeo in People v Bing (76 NY2d 331 [1990]). We explained in Bing:

“The right to assistance of counsel is one of the important means of protection against police harassment afforded individuals. But the right recognized must rest on some principled basis which justifies its social cost. Bartolomeo has no such basis. It rests on a fictional attorney-client relationship derived from a prior charge and premised on the belief that a lawyer would not refuse to aid his newly charged client. The decision to retain counsel rests with the client, however, not the lawyer and by hypothesis Bartolomeo defendants have waived their right to counsel and chosen not to hire a lawyer to represent them on the new unrelated charges. Indeed, they have done so after receiving the benefit of legal advice and after at least one prior experience dealing with the authorities.” (Id. at 348-349 [citation omitted].)

The above language (and much else in the Bing opinion) reads like an argument for overruling not only Bartolomeo but the broad rule of Rogers. In the typical case to which the Rogers rule applies—this one, for example—the suspect’s assumed representation by counsel on a second, unrelated case is “a fictional attorney-client relationship derived from a prior charge.” In this and similar cases, it is no less true than in Bartolomeo that “defendants have waived their right to counsel and chosen not to hire a lawyer to represent them on the new unrelated charges”—and, indeed, that they “have done so after receiving the benefit of legal advice and after at least one prior experience dealing with the authorities.”

Despite this, Bing did not reject the rule of Rogers—the Bing majority opinion ends, surprisingly, with a declaration that Rogers is still good law:

“We emphasize in closing that although Rogers and Bartolomeo are frequently linked in legal literature and Rogers was the only case cited to support the new rule adopted in Bartolomeo, the two holdings are quite different. In People v Rogers, the right to counsel had been invoked on the charges on which defendant was taken into custody and he and his counsel clearly asserted it. To protect his rights, we established a bright-line rule preventing the police from questioning defendant about those charges or any other charges. In People v Bartolomeo, however, defendant was taken into custody for questioning on a new, unrelated charge. He was not represented on that charge and freely waived his right to counsel. Since the right to counsel is personal and may be waived by a defendant, the court had to create an indelible right, a right that defendant could not waive in the absence of counsel, to justify suppression of the voluntary statement. It did so by implying a derivative right arising from the prior pending charges. We find the Bartolomeo rule unworkable, and therefore overrule it, but our decision today should not be understood as retreating from the stated holding of Rogers.” (Id. at 350 [citations omitted].)

It has never been entirely clear what the Bing court thought distinguished Rogers and Bartolomeo: What made Rogers right and Bartolomeo wrong? A possible distinction is that Bartolomeo went beyond Rogers by prohibiting questioning not only where the police actually knew of a prior representation, but where they could readily have discovered it. In Bartolomeo itself, both the majority and the dissent emphasized that point. The words “even though the fact of such representation is unknown to the officer” are part of the Bartolomeo majority’s statement of its holding (quoted above), while the dissent stressed “that the police knew only that defendant had been previously arrested and did not know defendant had counsel on those earlier charges” (53 NY2d at 236 [Wachtler, J., dissenting]). Three years after the Bing decision, in People v West (81 NY2d 370 [1993]), we said that this was indeed what distinguished Rogers and Bartolomeo. According to West, the “Bartolomeo right was problematic” because “[u]nlike Rogers, the Bartolomeo right could attach without police awareness of the unrelated representation” (id. at 378).

The majority today criticizes the idea of giving dispositive weight to the distinction between a police officer’s actual knowledge and that which a reasonable officer would think “highly likely” (majority op at 383). The criticism is cogent. I agree that in this case, Detective Mattei, if he thought about the question at all, would probably have assumed that defendant had counsel on the pending Pennsylvania charge, and it seems arbitrary to make the case turn on whether that assumption ripened into actual knowledge. But for me, the point of greater importance is that there is no reason why either the assumption or the knowledge should have prevented Mattel from asking questions about a matter having nothing to do with the Pennsylvania case.

If actual knowledge does not suffice to distinguish Rogers and Bartolomeo (and thus to justify Bing’s overruling of one case but not the other), what is the distinguishing feature? Today’s majority suggests that it is the occasion for the suspect’s custody. Rogers, when questioned by the police, was in custody on the charge on which a lawyer represented him; Bartolomeo was in custody on a later charge, on which he was unrepresented. Indeed, the language I have already quoted from Bing points out that in Rogers “the right to counsel had been invoked on the charges on which defendant was taken into custody.” And in People v Steward (88 NY2d 496, 499 [1996]) we seemed to embrace the “custody” rationale, saying that the distinguishing feature of the Bartolomeo right was that “it did not hinge on or relate to the matter for which a defendant was then in custody and being questioned.”

But the “custody” explanation of Bing’s distinction between Rogers and Bartolomeo cannot be the correct one, for a simple reason: It fails to account for the result in Bing itself, and in People v Cawley, decided with Bing. Bing was arrested in New York on an Ohio warrant, at a time when he had counsel on the Ohio charge. While in custody on that charge in New York, he was questioned about and admitted involvement in an unrelated burglary. Cawley was arrested for robbery, jumped bail and was rearrested on a bench warrant. Thus, he was in custody on the original robbery charge when he “gave inculpatory statements about new, unrelated criminal conduct” (76 NY2d at 336). If custody was the basis for the line that Bing drew between Rogers and Bartolomeo, why were Bing’s and Cawley’s statements not suppressed? My predecessor on this Court asked essentially this question 14 years ago, and received no answer (see People v Burdo, 91 NY2d 146, 154-155 [1997, Wesley, J., dissenting]).

Today’s majority attempts to answer the question, but its answer does not work. It says that Bing and Cawley were not “in custody for the offense for which an attorney had entered” but “were under arrest for being fugitives from justice” and “were not represented by counsel on that matter” (majority op at 385). But being a fugitive from justice is not a separate “matter” from the offense that caused the fugitive to flee. Bing and Cawley fled to avoid facing, were arrested on, and when questioned were in custody on charges for which they had lawyers. The majority offers no reason why their status as former fugitives should have impaired their right to counsel. Indeed, the Bing court rejected the argument that “a defendant who absconds and never contacts his lawyer . . . has terminated the attorney-client relationship” (76 NY2d at 346).

The facts of Bing are relevant to our case in another way: In Bing, as here, the only existing attorney-client relationship was in a case from another state. It does not make sense to suppress a confession in a New York case solely because of a relationship that is governed by the laws of Ohio or Pennsylvania; those states can decide for themselves how the relationship can best be protected. It was this that persuaded then-Judge Kaye, who was opposed to overruling Bartolomeo, to concur in the result in Bing. She acknowledged “the absurdity of extending Bartolomeo to [the Bing] facts” (76 NY2d at 356 [concurring in Bing and dissenting in Cawley]).

Bing was identical to this case in all material respects: a defendant in custody on an out-of-state charge, interrogated by New York officers about an unrelated New York crime. Though the Bing court was divided 4-3 on the question of overruling Bartolomeo, all seven Judges agreed that Bing’s right to counsel had not been violated. Since the majority here accepts Bing as good law, it is hard to understand how it reaches the opposite conclusion.

I conclude that the effort to find consistency in our cases in this area is a fruitless one. I therefore return to a more basic point: In common sense, Detective Mattel did nothing wrong and this defendant’s right to a lawyer was not interfered with in any way. He did not have a lawyer in the case Detective Mattel was talking to him about, and he validly waived his right to counsel in that case. The fact that he had a lawyer in an unrelated Pennsylvania case should be of no significance.

We said in People v Steward: “Bing unequivocally eliminates any right to counsel derived solely from a defendant’s representation in a prior unrelated proceeding” (88 NY2d at 500). Today’s majority echoes this comment—“the derivative right no longer exists” (majority op at 384). Steward said, and today’s majority repeats, that the right recognized in Rogers is not “derivative,” but I do not see how this can be so if the word derivative has any intelligible meaning (see West, 81 NY2d at 378 [“(l)ike Rogers, (the Bartolomeo) right was derivative”]). If this defendant’s right in this New York case did not derive from his Pennsylvania representation, where did it come from?

For these reasons, I think we should accept, at long last, the logical implication of Bing: The rule of Rogers, as well as that of Bartolomeo, is unjustifiable. We should return to the Taylor rule. I would therefore hold that the courts below committed no error in admitting defendant’s statements to Detective Mattei into evidence. I would not reach the question of harmless error.

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

Order affirmed.

      . Alston was named as a codefendant in the felony murder and attempted robbery counts.

      . Alston was tried separately and convicted of felony murder and related offenses.

      . This case also differs from Burdo because defendant was not incarcerated in New York when he was questioned and Pennsylvania does not recognize an indelible right to counsel to the extent that we do in New York (see generally Commonwealth v Yarris, 519 Pa 571, 593-594, 549 A2d 513, 524-525 [1988]). We have previously held that the interrogation of a defendant by a New York law enforcement agent outside of this state is subject to our right to counsel jurisprudence (see People v Bing, 76 NY2d at 344-345).

      . Had the detective asked defendant directly and he denied having an attorney for the Pennsylvania case, we have no doubt that Mattel could have accepted that assertion at face value if it would have been reasonable to do so (see generally People v Lucarano, 61 NY2d 138, 148 [1984]).

      . The parties in this appeal have neither questioned the continuing viability of Rogers and its progeny nor suggested that we should retreat to the Taylor rule. Furthermore, stare decisis dictates that prior decisions are entitled to significant deference and may be overruled only when there is a compelling justification for doing so.

      . The concurrence states that Bing and Cawley “were in custody on charges for which they had lawyers” (concurring op at 393). This is not so. The record in Bing reveals that Bing had been arrested in Ohio for burglary, arraigned, assigned counsel and released on bail. He then fled from that state, for which an arrest warrant was issued. Bing therefore knew that he was wanted in Ohio when he was apprehended by the police in New York. He was under arrest in this state for violating the terms of his bail in Ohio, not for committing the burglary. Similarly, Cawley had been arrested for robbery, released on his own recognizance and later absconded. This resulted in the issuance of a bench warrant for his arrest, which served as the predicate for his incarceration at the time he was questioned by the police. The Bing Court viewed these arrests in New York as separate from the prior charges for which the defendants had legal representation, placing them beyond the reach of the Rogers rule.

      . The Pennsylvania informant received no tangible reward for his testimony aside from the New York prosecutor’s offer to write a letter to Pennsylvania authorities acknowledging his assistance in this case.


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [948 NE2d 425, 924 NYS2d 1]
    In the Matter of Robert P. Meegan, Jr., Individually and as President of the Buffalo Police Benevolent Association, et al., Respondents, v Byron W. Brown, Mayor of the City of Buffalo, et al., Appellants. In the Matter of Joseph E. Foley, Individually and as President of the Buffalo Professional Firefighters Assoc., Inc., Local 282, IAFF, AFL-CIO-CLC, et al., Respondents, v Byron W. Brown, Mayor of the City of Buffalo, et al., Appellants. Buffalo Teachers Federation, Inc., NYSUT, et al., Respondents, v Buffalo Board of Education for City School District of City of Buffalo et al., Appellants.
    Argued February 9, 2011;
    decided March 29, 2011

      POINTS OF COUNSEL

      Goldberg Segalla, LLP, Buffalo (Matthew C. Van Vessem of counsel), and Jaeckle Fleischmann & Mugel, LLP (Scott P. Horton of counsel) for Byron W Brown and another, appellants.
    I. The plain language of the Buffalo Fiscal Stability Authority Act requires reversal of the decision of the Appellate Division. (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653; Gletzer v Harris, 12 NY3d 468; Matter of Niagara Wheatfield Adm’rs Assn. [Niagara Wheatfield Cent. School Dist.], 44 NY2d 68; Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513; Matter of Tonis v

      Board of Regents of Univ. of State of N.Y., 295 NY 286; Zion v Kurtz, 50 NY2d 92, 1060; Mangam v City of Brooklyn, 98 NY 585; Association of Surrogates & Supreme Ct. Reporters Within City of N.Y. v State of New York, 79 NY2d 39; Matter of Board of Coop. Educ. Servs. of Rockland County v New York State Pub. Empl. Relations Bd., 41 NY2d 753; Board of Educ. of Yonkers City School Dist. v Cassidy, 59 AD2d 180.) II. The public purposes and remedial nature of the Buffalo Fiscal Stability Authority Act compel reversal of the decision of the Appellate Division. (Matter of Hogan v Culkin, 18 NY2d 330; Ferres v City of New Rochelle, 68 NY2d 446; People v Ryan, 274 NY 149; Matter of River Brand Rice Mills, Inc. v Latrobe Brewing Co., 305 NY 36; Matter of Capital Newspapers, Div. of Hearst Corp. v Whalen, 69 NY2d 246; Matter of Chase Natl. Bank v Guardian Realties, Inc., 283 NY 350.) III. The decision of the Appellate Division, if affirmed, imposes a financial obligation on the City of Buffalo that compels re-examination of Buffalo Fiscal Stability Authority Resolution No. 07-21.

      Harris Beach PLLC, Pittsford (A. Vincent Buzard and Laura W. Smalley of counsel), for Buffalo Fiscal Stability Authority, appellant.
    The language of the Buffalo Fiscal Stability Authority Act, which provides that wage increases, steps and increments are “suspended” during the wage freeze and that such “retroactive pay adjustments” do not “accrue” during the freeze, makes clear that multiple increases are not to be reinstated immediately after the freeze is lifted. (Robbins v County of Broome, 87 NY2d 831; DiMaio v Pozefsky, 35 AD3d 1136; Jones v Bill, 10 NY3d 550; Weingarten v Board of Trustees of N.Y. City Teachers’ Retirement Sys., 98 NY2d 575; Roth v Michelson, 55 NY2d 278; People v Boston, 75 NY2d 585; Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653; Riley v County of Broome, 95 NY2d 455; Gletzer v Harris, 12 NY3d 468; Matter of Ramroop v Flexo-Craft Print., Inc., 11 NY3d 160.)

      Damon & Morey LLP, Buffalo (James N. Schmit and Michael J. Willett of counsel), and Michael J. Looby, General Counsel, Buffalo Public Schools, for Buffalo Board of Education for City School District of the City of Buffalo and another, appellants.
    The clear language of the Buffalo Fiscal Stability Authority Act establishes, as a matter of law, that step increases and increments did not accrue during the wage freeze. (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653; Riley v County of Broome, 95 NY2d 455; Gletzer v Harris, 12 NY3d 468; Matter of Tonis v Board of Regents of Univ. of State of N.Y., 295 NY 286;
      Matter of Rodriguez v Perales, 86 NY2d 361; Matter of Albano v Kirby, 36 NY2d 526; White Plains Parking Auth. v State of New York, 180 AD2d 729; Acme Bldrs. v County of Nassau, 36 AD2d 317, 31 NY2d 924; Matter of SIN, Inc. v Department of Fin. of City of N.Y., 71 NY2d 616; Board of Educ. of Yonkers City School Dist. v Cassidy, 59 AD2d 180.)

      W. James Schwan, II, Buffalo, for Robert E Meegan, Jr., and another, respondents.
    I. The decisions of the courts below are compelled by the language of statute. II. Appellants’ interpretation of the statute is contrary to its plain meaning. (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653; Bertoldi v State of New York, 275 AD2d 227; Matter of David Assoc. [Bevona], 109 AD2d 623; Board of Educ., Farmingdale Union Free School Dist. v Farmingdale Fedn. of Teachers, 92 AD2d 599; Mark v Board of Higher Educ. of City of N. Y, 303 NY 154; Samiento v World Yacht Inc., 10 NY3d 70; Friedman v Connecticut Gen. Life Ins. Co., 9 NY3d 105; Commonwealth of Pa. v Brown, 260 F Supp 323.) III. Appellants’ interpretation of the statute results in an unconditional impairment of the Buffalo Police Benevolent Association’s contract. (Association of Surrogates & Supreme Ct. Reporters Within City of N.Y. v State of New York, 79 NY2d 39, 940 F2d 766; Condell v Bress, 983 F2d 415.) IV. The lifting of the wage freeze as implemented by the City resulted in absurd results.

      Creighton, Johnsen & Giroux, Buffalo (E. Joseph Giroux, Jr., and Jonathan G. Johnsen of counsel), for Joseph Foley and another, respondents.
    I. The plain language of Public Authorities Law § 3858 (2) (c) provides that, during a control period, the Buffalo Fiscal Stability Authority is empowered only to suspend but not to eliminate increases to wages. (Matter of Astoria Fin. Corp. v Tax Appeals Trib. of State of N.Y., 63 AD3d 1316; Buffalo Teachers Fedn. v Tobe, 464 F3d 362.) II. The plain language of Public Authorities Law § 3858 (2) (c) (iii) prohibits only “retroactive pay adjustments” to “accrue or be deemed to accrue during the period of wage freeze” and does not affect the implementation of the suspended wage increases. (Kahmann v Reno, 967 F Supp 731; Annacchino v Annacchino, 61 Misc 2d 636.)

      Bredhoff & Kaiser, P.L.L.C. (Andrew D. Roth, of the District of Columbia bar, admitted pro hac vice, of counsel), Office of General Counsel, New York State United Teachers, Buffalo (Robert W. Klingensmith, Jr., of counsel), James R. Sandner, Latham,
      Kevin H. Haren and Alice M. O’Brien, Washington, D.C., for Buffalo Teachers Federation, Inc., and others, respondents.
    I. The courts below were correct in adopting the union’s interpretation of the Buffalo Fiscal Stability Authority (BFSA) Act’s wage freeze provisions and in rejecting the BFSA’s current, contrary interpretation. (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653; Matter of New York State Correctional Officer & Police Benevolent Assn., Inc. v New York State Dept. of Correctional Servs., 66 AD3d 1291; Bertoldi v State of New York, 275 AD2d 227; Matter of David Assoc. [Bevona], 109 AD2d 623; Board of Educ., Farmingdale Union Free School Dist. v Farmingdale Fedn. of Teachers, 92 AD2d 599; Mark v Board of Higher Educ. of City of N.Y., 303 NY 154; Samiento v World Yacht Inc., 10 NY3d 70; Friedman v Connecticut Gen. Life Ins. Co., 9 NY3d 105; Commonwealth of Pa. v Brown, 260 F Supp 323; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451.) II. This Court should reject the Buffalo Fiscal Stability Authority’s (BFSA) new argument based on section 3872 of the BFSA Act. (Bingham v New York City Tr. Auth., 99 NY2d 355.) III. Contrary to the City of Buffalo’s argument, this matter need not, under any circumstances, be “remanded to the Buffalo Fiscal Stability Authority for reconsideration.”

      Jay Worona, Latham, and Kimberly A. Fanniff for New York State School Boards Association, Inc., amicus curiae.
    The lower court’s interpretation of Public Authorities Law § 3858 (2) (c) improperly ignores both the plain language of the statute and its stated purpose. (Roberts v Tishman Speyer Props., L.P., 13 NY3d 270; Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; People v Finnegan, 85 NY2d 53; Matter of Anderson v Board of Educ. of City of Yonkers, 46 AD2d 360, 38 NY2d 897; People v Munoz, 207 AD2d 418, 84 NY2d 938; Matter of Gibson v Board of Educ. of Watkins Glen Cent. School Dist., 68 AD2d 967, 52 NY2d 1053; Matter of Terino v Levitt, 44 AD2d 167; Matter of Tonis v Board of Regents of Univ. of State of N.Y., 295 NY 286; Matter of Albano v Kirby, 36 NY2d 526.)

      Harter Secrest & Emery LLP, Buffalo (Carol E. Heckman and A. Paul Britton of counsel), for Buffalo Niagara Partnership, amicus curiae.
    I. The language of the Buffalo Fiscal Stability Authority Act requires a determination that no step increases, percentage wage increases, or increments can be deemed to have accrued during the period of the wage freeze. (Roberts v Tishman Speyer Props., L.P., 13 NY3d 270; Matter of Daimler-

      Chrysler Corp. v Spitzer, 7 NY3d 653; Matter of Bath & Hammondsport R.R. Co. v New York State Dept. of Envtl. Conservation, 73 NY2d 434; Friedman v Connecticut Gen. Life Ins. Co., 9 NY3d 105; New York State Correctional Officer & Police Benevolent Assn., Inc. v New York State Dept. of Correctional Servs., 66 AD3d 1291; Bertoldi v State of New York, 275 AD2d 227; Matter of David Assoc. [Bevona], 109 AD2d 623; Board of Educ., Farmingdale Union Free School Dist. v Farmingdale Fedn. of Teachers, 92 AD2d 599; Mark v Board of Higher Educ. of City of NY., 303 NY 154; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95.) II. The Buffalo Fiscal Stability Authority Act should be construed consistently with the patent intent of the Legislature. (Buffalo Teachers Fedn. v Tobe, 464 F3d 362; Blanco v American Tel. & Tel. Co., 90 NY2d 757; Lesser v Park 65 Realty Corp., 140 AD2d 169; Matter of Industrial Commr. of State of N.Y. v Five Corners Tavern, 47 NY2d 639; Matter of New York Life Ins. Co. v State Tax Commn., 80 AD2d 675, 55 NY2d 758.)
   OPINION OF THE COURT

Pigott, J.

In 2003, because of concern for the City of Buffalo’s financial problems, the Office of the State Comptroller conducted a review of the City’s finances and issued a report, concluding that the City had been operating with a deficit for many years and was only able to fund its operations because of increasing state aid and by using its reserves. Based on these and other findings, the Comptroller proposed legislation to establish a City of Buffalo Oversight and Recovery Board whose mission was to ensure effective long-term restructuring of the City’s fiscal condition.

In response, the State Legislature created the Buffalo Fiscal Stability Authority (BFSA), a public benefit corporation, to assist in achieving fiscal stability in the City by the 2006-2007 fiscal year (see Public Authorities Law § 3857 [1]). The Legislature stated,

“It is hereby found and declared that the city [of Buffalo] is in a state of fiscal crisis, and that the welfare of the inhabitants of the city is seriously threatened. The city budget must be balanced and economic recovery enhanced. Actions should.be undertaken which preserve essential services to city residents, while also ensuring that taxes remain affordable. Actions contrary to these two essential goals jeopardize the city’s long-term fiscal health and impede economic growth for the city, the region, and the state” (L 2003, ch 122, § 1).

Among other powers, the BFSA was authorized to impose a wage freeze upon finding that such a freeze was essential to the adoption or maintenance of a city budget or financial plan (see Public Authorities Law § 3858 [2] [c] [i]). In April 2004 it did just that, determining “that a wage freeze, with respect to the City and all Covered Organizations, is essential to the maintenance of the Revised Financial Plan and to the adoption and maintenance of future budgets and financial plans that are in compliance with the Act.” (Buffalo Fiscal Stability Authority Resolution No. 04-35 [Apr. 21, 2004], available at http:// www.bfsa.state.ny.us/meetings2004/resolutions/res0435.pdf.) The freeze, effective April 2004, prevented any increase in wages, including increased payments for salary adjustments according to “plan and step-ups or increments” (id.).

The freeze was lifted in July 2007, whereupon the BFSA and the City indicated that city employees would immediately be entitled to a one-step increase in salaty and wages. The Unions objected, however, contending that the employees were entitled to advance the four salary steps that they would have received had the freeze not been imposed.

I.

In 2007, petitioners and plaintiffs (hereinafter the Unions) commenced these CPLR article 78 and declaratory judgment proceedings and action against respondents (hereinafter the City) challenging, among other things, the suspension of step-up plan wage increases. Supreme Court granted the petitions, finding that Public Authorities Law § 3858 (2) (c) (iii) applies only to wages lost during the freeze and not to longevity and promotional steps provided in the various contracts between the City and its unions and therefore petitioners were “entitled to their previously negotiated wage increase benefits going forward immediately.” (2007 NY Slip Op 33683[U], *5 [2007].)

The City appealed. The Appellate Division affirmed for essentially the same reasons as Supreme Court (63 AD3d 1673 [4th Dept 2009]). This Court granted leave and we now reverse.

II.

Public Authorities Law § 3858 (2) provides, in relevant part:

“In carrying out the purposes of this title during any control period, the [BFSA]: . . .
“(c) may impose a wage and/or hiring freeze: (i) During a control period, upon a finding by the [BFSA] that a wage and/or hiring freeze is essential to the adoption or maintenance of a city budget or a financial plan that is in compliance with this title, the [BFSA] shall be empowered to order that all increases in salary or wages of employees of the city and employees of covered organizations which will take effect after the date of the order pursuant to collective bargaining agreements . . . now in existence or hereafter entered into, requiring such salary or wage increases as of any date thereafter are suspended. Such order may also provide that all increased payments for . . . salary adjustments according to plan and step-ups or increments for employees of the city and employees of covered organizations which will take effect after the date of the order pursuant to collective bargaining agreements . . . requiring such increased payments as of any date thereafter are, in the same manner, suspended. . . .
“(iii) Notwithstanding the provisions of subparagraphs (i) and (ii) of this paragraph, no retroactive pay adjustments of any kind shall accrue or be deemed to accrue during the period of wage freeze, and no such additional amounts shall be paid at the time a wage freeze is lifted, or at any time thereafter” (emphasis added).

The City argues that under section 3858 (2) (c) (i) and (iii), contractual salary increases, step increases, and other pay adjustments were suspended and did not accrue during the wage freeze period and that, therefore, the union members were only entitled to a one-step increase—rather than four step increases—once the wage freeze ended. The Unions, on the other hand, acknowledge that the act prohibits the accrual of retroactive pay, but argue that their members accrued service credit in the step-salary plan and, upon the lifting of the wage freeze, should receive those salary step increases.

Both parties argue that the plain language of the statute supports their position. In our view, neither interpretation is unreasonable. Ultimately, however, the interpretation proffered by the City most comports with the meaning and purpose of the statute.

The legislation plainly permits the BFSA to suspend all salary and wage increases, including any “step-ups” and “increments” (Public Authorities Law § 3858 [2] [c] [i]). It further provides that “no retroactive pay adjustments of any kind shall accrue or be deemed to accrue during the period of wage freeze” (§ 3858 [2] [c] [iii] [emphasis added]). The term “retroactive pay adjustments of any kind” must be read broadly. Subdivision (2) (c) (iii) refers back to (2) (c) (i), which defines the type of adjustments, including differentials, step-ups and increments, that the BFSA is empowered to suspend. Thus, the Legislature’s use of the term “accrue” in subparagraph (iii) provides further evidence of its intent under subparagraph (i) that step increases and increments were suspended and did not accrue during the wage freeze.

III.

While examining the specific language of statutory provisions is part of our inquiry, we must also look to the underlying purpose and the statute’s history as “[w]e are mindful that in ‘the interpretation of statutes, the spirit and purpose of the act and the objects to be accomplished must be considered. The legislative intent is the great and controlling principle’ ” (Ferres v City of New Rochelle, 68 NY2d 446, 451 [1986] [emphasis omitted], quoting People v Ryan, 274 NY 149, 152 [1937]).

Public Authorities Law § 3850-a sets forth the Legislature’s intent. In that provision, the Legislature declared that the “maintenance of a balanced budget by the city of Buffalo is a matter of overriding state concern.” This remedial legislation was enacted to provide the City of Buffalo with “long-term fiscal stability,” ensuring confidence of investors in the City’s bonds and notes and to protect the economy of the region (id.). The act further provides that “[t]he provisions of this title shall be liberally construed to assist the effectuation of the public purposes furthered hereby” (id. § 3873). Thus, the entire purpose of the statute was to place the City of Buffalo on sound financial ground over the long term. In order to accomplish such purpose, BFSA was empowered to freeze wages and salary increments until the City’s growth and stability were renewed. The intent of the statute supports the City’s position.

Accordingly, the order of the Appellate Division should be reversed, with costs, the amended petitions in Matter of Meegan v Brown and Matter of Foley v Brown dismissed, and judgment granted to defendants in Buffalo Teachers Federation, Inc. v Buffalo Board of Education for City School District of City of Buffalo declaring in accordance with this opinion.

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

Order reversed, etc.


text:
    [947 NE2d 617, 922 NYS2d 843]
    The People of the State of New York, Respondent, v Michael Duhs, Appellant.
    Argued February 17, 2011;
    decided March 29, 2011

      POINTS OF COUNSEL

      Appellate Advocates, New York City (Erin R. Collins and Lynn W.L. Fahey of counsel), for appellant.
    I. The court denied appellant his constitutional right to confrontation by letting the People decline to call the child complainant, and instead present his accusation through the testimony of a physician and “mandated child abuse reporter,” who reported it to the police, but never recorded it in the medical record. (People v Pacer, 6 NY3d 504; Crawford v Washington, 541 US 36; Davis v Washington, 547 US 813; People v Goldstein, 6 NY3d 119; California v Green, 399 US 149; Coy v Iowa, 487 US 1012; People v Cintron, 75 NY2d 249; Davis v Alaska, 415 US 308; Pointer v Texas, 380 US 400; People v Arroyo, 54 NY2d 567.) II. Since the three-year-old complainant would not have understood his response to a doctor’s question, posed almost an hour into treatment, to be medically significant, it was inadmissible under New York’s “medical treatment” hearsay exception. (Davidson v Cornell, 132 NY 228; People v Huertas, 75 NY2d 487; People v Nieves, 67 NY2d 125; People v Settles, 46 NY2d 154; People v Brown, 80 NY2d 729; People v Caviness, 38 NY2d 227; White v Illinois, 502 US 346; Scott v Mason, 155 AD2d 655; People v Thomas, 282 AD2d 827; People v Torres, 175 AD2d 635.)

      Daniel M. Donovan, Jr., District Attorney, Staten Island (Anne Grady and Morrie I. Kleinbart of counsel), for respondent.
    Because the infant complainant’s statements were necessary to treat his injuries, they were nontestimonial and their admission did not violate defendant’s Sixth Amendment confrontation right. (Davis v Washington, 547 US 813; Crawford v Washington, 541 US 36; People v James, 19 AD3d 616; People v Caccese, 211 AD2d 976; People v Dennee, 291 AD2d 888; Williams v Alexander, 309 NY 283; People v Cratsley, 86 NY2d 81; People v Scott, 294 AD2d 661; Scott v Mason, 155 AD2d 655; People v Townsley, 240 AD2d 955.)
   OPINION OF THE COURT

Pigott, J.

Defendant, who was babysitting his girlfriend’s three-year-old son, allegedly placed the child’s feet and lower legs into a tub filled with scalding hot water, resulting in second and third degree burns. When the child’s mother returned home approximately five hours later, defendant and the mother took the child to the hospital, where he was examined and treated by an emergency room pediatrician.

At trial, the court permitted the pediatrician to testify about a statement the child made outside the presence of his mother and defendant. Specifically, when the pediatrician asked the child why he did not get out of the tub, he responded, “he wouldn’t let me out.” The pediatrician did not include this statement in the child’s medical records, nor did the child testify at trial. Defendant was convicted of assault in the first degree and endangering the welfare of a child, and, on appeal, the Appellate Division affirmed (65 AD3d 699 [2009]). A Judge of this Court granted leave (14 NY3d 887 [2010]).

The only issues before us are whether the trial court erred in allowing the pediatrician’s testimony concerning the child’s statement in evidence as germane to the child’s medical diagnosis and treatment, and whether its admission violated defendant’s constitutional right to confront the witnesses against him.

Supreme Court properly concluded that the child’s statement was germane to his medical diagnosis and treatment and therefore was properly admitted under that exception to the hearsay rule. When seeking treatment for injuries, there is a “strong inducement for the patient to speak truly of his pains and sufferings” and therefore “statements expressive of [a patient’s] present condition are permitted to be given as evidence only when made to a physician for the purposes of treatment” (Davidson v Cornell, 132 NY 228, 237-238 [1892]).

Here, the pediatrician testified that, during her initial assessment, she observed that the child had sustained second and third degree burns to his feet and legs. The pediatrician testified that she asked the child how he had been injured to determine the time and mechanism of the injury so she could properly administer treatment, the type of treatment being dependent on when and how the child was injured. Moreover, the pediatrician testified that by asking the question, she was trying to ascertain whether the child had a predisposing condition, such as a neurological disorder (e.g., was prone to seizures or developmental delays) that may have prevented him from getting out of the bathtub.

Defendant nevertheless contends that, by allowing the pediatrician to testify as to what the child told her, he was deprived of his Sixth Amendment right to confront the witness against him in violation of Crawford v Washington (541 US 36 [2004]) and Davis v Washington (547 US 813 [2006]). The United States Supreme Court held in those cases that the Confrontation Clause prohibits the “admission of testimonial statements of a witness who [does] not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination” (Davis, 547 US at 821, quoting Crawford, 541 US at 53-54).

At issue here is whether the child’s statement to the pediatrician was testimonial, as defendant claims, or nontestimonial, as the People assert. In Davis, the Supreme Court held that only “testimonial statements” can “cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause,” and “[i]t is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause” (547 US at 821). “Statements are non-testimonial when made in the course of. . . interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to . . . meet an ongoing emergency” and “are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution” (Michigan v Bryant, 562 US —, —, 131 S Ct 1143, 1154 [2011], quoting Davis, 547 US at 822).

The “primary purpose” test reflects an “important distinction between a statement (generated through police interrogation or otherwise) that ‘accuses’ a perpetrator of a crime . . . versus one that serves some other nontestimonial purpose” (People v Rawlins, 10 NY3d 136, 148 [2008], cert denied sub nom. Meekins v New York, 557 US —, 129 S Ct 2856 [2009]). Significantly, “[t]he lodestar . . . that emerges from Davis is the purpose that the statement was intended to serve” (id.). Indeed, the Supreme Court recently explained that

“[w]hen, as in Davis, the primary purpose of an interrogation is to respond to an ‘ongoing emergency,’ its purpose is not to create a record for trial and thus is not within the scope of the Clause. But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause” (Bryant, 562 US at —, 131 S Ct at 1155).

Applying the primary purpose test here, it is evident that the statement “he wouldn’t let me out” was not of a testimonial character, since the primary purpose of the pediatrician’s inquiry was to determine the mechanism of injury so she could render a diagnosis and administer medical treatment. Moreover, the Supreme Court has noted that “statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules” and not the Confrontation Clause (Giles v California, 554 US 353, 376 [2008]; see Bryant, 562 US at — n 9, 131 S Ct at 1157 n 9).

Finally, it is of no moment that the pediatrician may have had a secondary motive for her inquiry, namely, to fulfill her ethical and legal duty, as a mandatory reporter of child abuse, to investigate whether the child was potentially a victim of abuse. Her first and paramount duty was to render medical assistance to an injured child. Accordingly, the order of the Appellate Division should be affirmed.

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

Order affirmed.


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

text:
    [947 NE2d 1169, 923 NYS2d 391]
    Ryan P. St. Louis, Respondent, v Town of North Elba et al., Appellants.
    Argued February 10, 2011;
    decided March 31, 2011

      POINTS OF COUNSEL

      Roemer Wallens Gold & Mineaux, LLP, Albany (Matthew J. Kelly of counsel), for appellants.
    Plaintiff cannot rely on 12 NYCRR 23-9.4 as the basis for his Labor Law § 241 (6) claim because the provisions of that regulation do not apply to a front-end loader being used as a material hoist. (Morris v Pavarini Constr., 9 NY3d 47; Zimmer v Chemung County Performing Arts, 65 NY2d 513; Long v Forest-Fehlhaber, 55 NY2d 154; Nagel v D & R Realty Corp., 99 NY2d 98; Morton v State of New York, 15 NY3d 50; Rivera v Santos, 35 AD3d 700; Fitzgerald v New York City School Constr. Auth., 18 AD3d 807; Dzieran v 1800 Boston Rd., LLC, 25 AD3d 336; Ryder v Mount Loretto Nursing Home, 290 AD2d 892; Giordano v Forest City Ratner Cos., 43 AD3d 1106.)

      Pennock, Breedlove & Noll, LLP, Clifton Park (Sarah I. Goldman of counsel), for respondent.
    I. 12 NYCRR subpart 23-9 is the proper regulation in the instant action as the front-end loader used to suspend the pipe was power-operated heavy equipment and machinery used in construction. (Smith v Hovnanian Co., 218 AD2d 68; Borowicz v International Paper Co., 245 AD2d 682; Copp v City of Elmira, 31 AD3d 899.) II. Defendant’s contention that there is a split of authority between the appellate departments is not accurate. III. 12 NYCRR 23-6.1 is inapplicable as the regulation specifically excludes excavating machines used as material hoists. (Adams v Glass Fab, 212 AD2d 972; Cardenas v American Ref-Fuel Co. of Hempstead, 244 AD2d 377; Giordano v Forest City Ratner Cos., 43 AD3d 1106; Ryder v Mount Loretto Nursing Home, 290 AD2d 892; Rivera v Santos, 35 AD3d 700; Locicero v Princeton Restoration, Inc., 25 AD3d 664.)
   OPINION OF THE COURT

Chief Judge Lippman.

Plaintiff Ryan St. Louis was injured while employed as a maintenance worker at the MacKenzie-Intervale Olympic Jumping Complex in Lake Placid. At the time of his injury, St. Louis was assisting a work crew that was constructing a drainage pipeline by welding together and laying 20-foot sections of snow-making pipe. The crew utilized a hydraulic-operated clamshell bucket attached to the bucket arm of a front-end loader to lift sections of the pipe approximately four feet above the ground and then hold the pipe in place in the jaws of the clamshell. Suspending one end of the pipe section in the air during the welding enabled the crew to reach the underside of the jointed sections.

After a crew member finished welding two pipe sections, St. Louis began hitting the welded seam with a hammer to remove excess metal, when suddenly the jaws of the clamshell bucket opened and released the pipe. The pipe pinned St. Louis to the ground, causing serious injury to his legs and feet. Although the members of the work crew later testified that they ordinarily used chains to secure loads in the clamshell bucket, at the time of the injury, there was no chain, rope or any other safety device to prevent the pipe from falling in the event of machine malfunction.

St. Louis commenced this action for damages, alleging, among other things, that defendant Town of North Elba, the owner of the Olympic Complex, had violated Labor Law § 241 (6), which “requires owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993] [internal quotation marks omitted]). Since section 241 (6) imposes a nondelegable duty on property owners, plaintiff need not show that defendants exercised supervision or control over the work site in order to establish a right of recovery under section 241 (6) (see Allen v Cloutier Constr. Corp., 44 NY2d 290, 300 [1978]). Nonetheless, comparative negligence remains a cognizable affirmative defense to a section 241 (6) cause of action (see Long v Forest-Fehlhaber, 55 NY2d 154, 160-161 [1982]).

In order to state a claim under section 241 (6), a plaintiff must allege that the property owners violated a regulation that sets forth a specific standard of conduct and not simply a recitation of common-law safety principles (see e.g. Ross, 81 NY2d at 501-502). Here, plaintiff rests his section 241 (6) claim on a violation of 12 NYCRR 23-9.4 (e).

Section 23-9.4 falls within subpart 23-9 of the Industrial Code, which is entitled “Power-Operated Equipment.” Section 23-9.1 (“Application of this Subpart”) specifies that “[t]he provisions of [subpart 23-9] shall apply to power-operated heavy equipment or machinery used in construction, demolition and excavation operations.” Following this statement of applicability are nine sections covering specific kinds of power-operated heavy equipment or machinery, which do not mention “loaders” or “front-end loaders.” Section 23-9.4 itself provides:

“Where power shovels and backhoes are used for material handling, such equipment and the use thereof shall be in accordance with the following provisions: . . .
“(e) Attachment of load.
“(1) Any load handled by such equipment shall be suspended from the bucket or bucket arm by means of wire rope having a safety factor of four.
“(2) Such wire rope shall be connected by means of either a closed shackle or a safety hook capable of holding at least four times the intended load.”

In its motion papers, defendants challenged the use of section 23-9.4 as a predicate for a section 241 (6) claim, arguing, among other things, that section 23-9.4 only mentions “power shovels and backhoes” and therefore cannot be extended to include “front-end loaders.”

Supreme Court denied defendants’ motion for summary judgment, concluding that the provisions of section 23-9.4 (e) cover front-end loaders when used in the manner and circumstances presented. The court relied on Copp v City of Elmira (31 AD3d 899 [3d Dept 2006]), which held that section 23-9.4 applies to a “payloader” used to elevate construction material:

“The regulation clearly addresses situations in which construction equipment is used to lift materials and sets forth pertinent safety standards. The term power shovel is not separately defined and where, as here, construction equipment is used to attempt to accomplish the same task as a power shovel, it would be inconsistent with the purpose of the regulation and cause an objectionable result to find the safety precautions regarding lifting materials inapplicable (see Matter of ATM One v Landaverde, 2 NY3d 472, 476-477 [2004])” (31 AD3d at 900 [emphasis added]).

The Appellate Division affirmed, rejecting defendants’ argument that section 23-9.4 cannot apply to a front-end loader. The court found “the manner in which the equipment is used rather than its name or label” to be the touchstone in assessing the applicability of a particular Code section (see 70 AD3d 1250, 1251 [2010], citing Copp, 31 AD3d at 900, Borowicz v International Paper Co., 245 AD2d 682, 684 [3d Dept 1997], and Smith v Hovnanian Co., 218 AD2d 68, 71 [3d Dept 1995]).

The Appellate Division subsequently granted permission to appeal to the Court of Appeals upon the certified question of whether the court had erred in affirming the motion court.

We now answer the certified question in the negative and affirm the Appellate Division order upholding the denial of summary judgment.

As an initial matter, we agree that subpart 23-9 of the Code, which applies to “power-operated heavy equipment or machinery used in construction,” extends to a front-end loader being used to construct a drainage pipeline. A front-end loader is undeniably “power-operated heavy equipment.” Moreover, the Code’s definition of “construction work” expressly includes “pipe and conduit laying” (12 NYCRR 23-1.4 [b] [13]).

Further, we agree that the safety requirements of this section appropriately extend to the case of a front-end loader that is enlisted to do the material handling that is otherwise performed by power shovels and backhoes. Although the Code does not enumerate each piece of heavy equipment that can be operated to suspend materials from its bucket or bucket arm, section 23-9.4 (e) was clearly drafted to reduce the threat posed by heavy materials falling from buckets by requiring loads to be fastened with sturdy wire, proportionate to the weight of the load. The same danger that exists for a worker using a power shovel or backhoe with an unsecured load exists for a worker using a front-end loader with an unsecured load. We furthermore note the record indicates testimony that the workers normally secured materials in the bucket by use of metal chain, and the accident report stated that the injury could have been prevented by “us[ing] chain on pipe.” Thus, it is apparent that material hoisting with a front-end loader is associated in the trade with the same known risks as other power-operated machinery used in this manner.

The Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace (see e.g. Allen v Cloutier Constr. Corp., 44 NY2d at 300 [“Doubtless this duty (imposed by Labor Law § 241) is onerous; yet, it is one the Legislature quite reasonably deemed necessary by reason of the exceptional dangers inherent in connection with ‘constructing or demolishing buildings or doing any excavating in connection therewith’ ”]). Accordingly, the preferred rule both as a matter of statutory interpretation and as a reinforcement of the objectives of the Industrial Code is to take into consideration the function of a piece of equipment, and not merely the name, when determining the applicability of a regulation. This approach accounts for those circumstances where a slightly different machine is utilized for the same risky objective that is perhaps more frequently or more efficiently achieved by the machine designated by name in the Code.

We therefore hold that the Appellate Division did not err in its conclusion that a front-end loader used to suspend dangerous construction materials from its bucket arm should demand the same safety precautions as required for other power-operated heavy equipment performing the same function. It now remains for a jury to determine the remaining factual issues, including proximate cause and comparative negligence.

Accordingly, the order should be affirmed, with costs, and the certified question answered in the negative.

Smith, J. (dissenting).

The majority’s decision can only confuse what until now has been our consistent, if rather complicated, approach to actions brought under Labor Law § 241 (6). That statute says:

“All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner [of the Department of Labor] may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.”

I call our approach to interpreting the statute complicated because, as we explained in Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494, 501-505 [1993]), we have in essence subdivided section 241 (6). Ross says: “Labor Law § 241 (6) is, in a sense, a hybrid, since it reiterates the general common-law standard of care and then contemplates the establishment of specific detailed rules through the Labor Commissioner’s rule-making authority” (id. at 503).

Responding to the dual nature of the statute, we have separated the first sentence from the second, holding that the second sentence, but not the first, may “create duties that are nondelegable” in the sense that liability for breach of those duties may be imposed even on owners and contractors who exercise no supervision or control over the activity in question (id.). In other words, a worker injured through a breach of the generalized standard of care stated in the first sentence does not have a cause of action against entities that do not supervise or control the work, but if the injury results from a violation of the “specific detailed rules” contemplated by the second sentence, no barrier to such a suit exists.

To complicate matters further, a cause of action will exist only where the Commissioner has indeed promulgated “specific detailed rules”—not where she has merely broadly restated a duty of care, using such words as “reasonable and adequate protection and safety” (id. [internal quotation marks and citation omitted]). The bottom line is that a plaintiff may sue a nonsupervising owner or contractor under Labor Law § 241 (6) only where the Commissioner’s regulation “sets forth a specific requirement or standard of conduct” (id.) or mandates “compliance with concrete specifications” (id. at 505).

Of course, deciding whether the requirements of a particular regulation are “specific” or “concrete” enough can be tricky (see e.g. Misicki v Caradonna, 12 NY3d 511 [2009]). But until today, we at least knew the starting point for the inquiry: the words of the regulation. Now the majority holds that we may disregard the words if doing so will effectuate the regulation’s “purpose of protecting construction laborers against hazards in the workplace” (majority op at 416). It is therefore unimportant that the regulation in issue here is, by its plain language, applicable only to “power shovels and backhoes”; it can also be applied to a different kind of equipment, a front-end loader, because the majority does not think the difference between the kinds of equipment justifies different treatment.

Whatever the merits of this kind of “purpose-based” interpretation generally, it makes no sense at all in the context of a statute whose whole point, as we have interpreted it, is to give a remedy only for violations of a regulation’s specific commands. The virtue of this approach is that it assures that all have clear notice of what the law requires; but how could the defendants in this case possibly have known, from reading 12 NYCRR 23-9.4 (e), that its requirements applied to front-end loaders? If courts can freely rewrite the regulations to give whatever protection a court thinks should be given, why not forget about the general-specific distinction explained in Ross and allow plaintiffs to sue owners and contractors under Labor Law § 241 (6) for any violation of the common-law standard of care?

For these reasons, I would dissent from the majority’s legal conclusion even if I agreed with its factual premise—that there is no difference between a power shovel or backhoe and a front-end loader that warrants different treatment. For me, it is enough that the regulation does treat them differently. But I am also skeptical of the majority’s premise. The Commissioner may well have good reasons for believing that power shovels and backhoes—which have, at least sometimes, longer arms than front-end loaders, and thus may lift their loads to a greater height—present more danger and should be regulated more strictly. Neither the record in this case nor our expertise as judges equips us to decide that question, and we should not usurp the Commissioner’s authority by doing so.

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

Order affirmed, etc.