author: Abdus-Salaam, J.

text:
    [9 NE3d 351, 986 NYS2d 1]
    In the Matter of Baldwin Union Free School District et al., Respondents, v County of Nassau, Appellant. (Matter No. 1.) Barbara Hafner et al., Respondents, v County of Nassau et al., Appellants. (Matter No. 2.) In the Matter of Town of North Hempstead et al., Respondents, v County of Nassau, Appellant. (Matter No. 3.)
    Argued January 7, 2014;
    decided February 18, 2014

      POINTS OF COUNSEL

      Rosenberg Calica & Birney LLP, Garden City (Ronald J. Rosenberg, Lesley A. Reardon, Judah Serfaty and Edward M. Ross of counsel), and Nassau County Attorney’s Office, Mineóla, for appellants in the three above-entitled matters.
    I. Nassau County possesses the authority and power under the Local Legislation Act (L 1936, ch 879; L 1937, ch 618; L 1939, ch 700) and its Charter to change or supersede the special law creating the County Guaranty, which special law does not apply “alike to all counties” but only applies to the County of Nassau. (Yatauro v Mangano, 17 NY3d 420; Matter of Gizzo v Town of Mamaroneck, 36 AD3d 162; Landmark Colony at Oyster Bay v Board of Supervisors of County of Nassau, 113 AD2d 741; Matter of Holland v Bankson, 290 NY 267; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95; Matter of Dutchess County Dept. of Social Servs. v Day, 96 NY2d 149; Matter of Meegan v Brown, 16 NY3d 395; Ferres v City of New Rochelle, 68 NY2d 446; Riley v County of Broome, 95 NY2d 455; Fire Dept. of City of Rochester v City of Rochester, 23 AD2d 183, 16 NY2d 933.) II. The Appellate Division’s application of the 1963 version of NY Constitution, article IX, § 2 to limit the County of Nassau’s local legislative authority was patently erroneous. (41 Kew Gardens Rd. Assoc. v Tyburski, 70 NY2d 325; Matter of Kelley v McGee, 57 NY2d 522; Matter of Heimbach v Mills, 67 AD2d 731; Rozler v Franger, 61 AD2d 46; Pearson v Pearson, 81 AD2d 291; County of Nassau v Incorporated Vil. of Woodsburgh, 86 AD2d 856; Matter of Main St. in Vil. of Sing Sing, 98 NY 454.) III. Even if the 1963 version of NY Constitution, article IX, § 2 (c) (ii) applied, it does not prohibit the County of Nassau from enacting the Common Sense Act (Local Law No. 18-2010 of the County of Nassau) as a matter of law. (Yatauro v Mangano, 17 NY3d 420; Matter of Dutchess County Dept. of Social Servs. v Day, 96 NY2d 149; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95; City of White Plains v Del Bello, 87 AD2d 483; Sonmax, Inc. v City of New York, 43 NY2d 253; Matter of Fifth Ave. Off. Ctr. Co. v City of Mount Vernon, 89 NY2d 735; 41 Kew Gardens Rd. Assoc. v Tyburski, 70 NY2d 325.) IV Even if NY Constitution, article IX, § 2 (c) (ii) (8) applied, the Common Sense Act (Local Law No. 18-2010 of the County of Nassau) is valid and proper based on this Court’s holding in Sonmax, Inc. v City of New York (43 NY2d 253 [1977]), which established that Municipal Home Rule Law § 10 (1) (ii) (a) (8) exempts local laws related to property taxes from having to be consistent with any other laws. (DJL Rest. Corp. v City of New York, 96 NY2d 91.)

      Hamburger, Maxson, Yaffe, Knauer & McNally, LLP, Melville (David N. Yaffe and Richard Hamburger of counsel), for Baldwin Union Free School District and others, respondents in the first above-entitled matter.
    I. The Nassau County Charter did not delegate authority to enact local laws that supersede state laws relating to real property tax refund obligations or that affect the maintenance or support of public education. (People v

      County of Westchester, 282 NY 224; Browne v City of New York, 241 NY 96; Clark v LaGuardia, 245 App Div 325; County Sec. v Seacord, 278 NY 34; Carodix Corp. v Comiskey, 265 App Div 450, 291 NY 737; Queens Park Gardens, Inc. v County of Nassau, 255 App Div 625, 280 NY 789.) II. Local Law No. 18-2010 of the County of Nassau violates the provisions of the NY Constitution and the Municipal Home Rule Law forbidding the enactment of local laws relating to the levy, collection, administration, distribution and judicial review of local taxes inconsistent with state special laws, and affecting the maintenance and support of public education. (Town of Amherst v County of Erie, 260 NY 361; Matter of Rab Co. Highland House Apts. v Tompkins County Bd. of Assessment Review, 68 AD2d 374; Sonmax, Inc. v City of New York, 43 NY2d 253; Bugeja v City of New York, 24 AD2d 151, 17 NY2d 606; Matter of Gizzo v Town of Mamaroneck, 36 AD3d 162; New York Tel. Co. v Supervisor of Town of N. Hempstead, 77 AD3d 121; Lanza v Wagner, 11 NY2d 317; Matter of Divisich v Marshall, 281 NY 170; Board of Educ., Union Free School Dist. No. 4, Town of Greece v Board of Educ. of City of Rochester, 23 AD2d 805; People ex rel. Elkind v Rosenblum, 184 Misc 916, 269 App Div 859, 295 NY 929.) III. The shifting of municipal tax refund obligations onto school districts is not a matter of local concern. (Konz v Bedell, 273 App Div 777, 298 NY 585; City of New York v Village of Lawrence, 250 NY 429.) IV Local Law No. 18-2010 of the County of Nassau is irrational, arbitrary and capricious, and Nassau County’s appeals to alleged fairness do not obviate the necessity of state action to repeal the County Guaranty. (Matter of Bowery Sav. Bank v Board of Assessors of County of Nassau, 80 NY2d 961; Matter of Steel Los III/Goya Foods, Inc. v Board of Assessors of County of Nassau, 10 NY3d 445; Town of Amherst v County of Erie, 260 NY 361; Matter of Wadhams, 249 App Div 271.) V The enactment of Local Law No. 18-2010 of the County of Nassau also violates the law of legislative equivalency and the Statute of Local Governments. (Matter of Moran v LaGuardia, 270 NY 450; Matter of Torre v County of Nassau, 86 NY2d 421; County Sec. v Seacord, 278 NY 34; Matter of County of Nassau v Nassau County Interim Fin. Auth., 33 Misc 3d 227.) VI. In the alternative, Local Law No. 18-2010 of the County of Nassau fails to specify whether and which portions of Laws of 2006, chapter 503, it intended to supersede, in violation of Municipal Home Rule Law § 22 (1), and it transfers a duty without a referendum, in violation of the NY Constitution and Municipal Home Rule Law § 33-a. (Kamhi v Town of Yorktown, 74 NY2d 423; Turnpike Woods v Town of Stony Point, 70 NY2d 735; Matter of Town of Smithtown v Howell, 31 NY2d 365.)

      Catherine V. Battle, New York City, and Richard E. Casagrande for Barbara Hafner and another, respondents in the second above-entitled matter.
    I. The public policy reasons for or against the County Guaranty should have no impact on the Court’s determination, as they are exclusively vested in the state legislature. (City of New York v State of New York, 94 NY2d 577; Matter of Wadhams, 249 App Div 271.) II. The overarching principles of law applicable to this case compel the conclusion that Nassau County does not possess the power to repeal the County Guaranty by local law. (Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372; Seaman v Fedourich, 16 NY2d 94; Adler v Deegan, 251 NY 467; City of New York v Village of Lawrence, 250 NY 429.) III. The evolution of Nassau County’s power to enact local laws demonstrates that it was not given power to repeal the County Guaranty by local law. IV The evolution of Nassau County’s power to enact charter laws demonstrates that it was not given power to repeal the County Guaranty by charter law. (Konz v Bedell, 273 App Div 777.) V There is no authority in the Nassau County Charter for the repeal of the County Guaranty by local law. (City of New York v State of New York, 94 NY2d 577; Sonmax, Inc. v City of New York, 43 NY2d 253; County Sec. v Seacord, 278 NY 34; Weber v City of New York, 18 Misc 2d 543; Matter of Divisich v Marshall, 281 NY 170; Gunnison v Board of Educ. of City of New York, 176 NY 11; Matter of Fuhrmann v Graves, 235 NY 77.) VI. The 1963 Constitution and the Municipal Home Rule Law prohibit the repeal of the County Guaranty by local law. (Matter of Albano v Kirby, 36 NY2d 526; Matter of Board of Educ. of City School Dist. of City of N.Y. v City of New York, 41 NY2d 535; Bugeja v City of New York, 24 AD2d 151, 17 NY2d 606; Matter of Board of Co-op. Educ. Servs. of Nassau County v Gaynor, 33 AD2d 701; Board of Educ., Union Free School Dist. No. 4, Town of Greece v Board of Educ. of City of Rochester, 23 AD2d 805; Matter of Reuss v Katz, 43 Misc 2d 921, 21 AD2d 968.) VII. Local Law No. 18-2010 of the County of Nassau, if not invalid, is nevertheless inoperable because of Nassau County’s failure to conduct a referendum.

      Jaspan Schlesinger LLP, Garden City (Maureen T. Liccione and Andrew M. Mahony of counsel), and Robert V. Guido, Lindenhurst, for Town of North Hempstead and others, respondents in the third above-entitled matter.
    I. The restrictions on enactment of local tax laws in NY Constitution, article IX, § 2 apply to Nassau County. (Matter of Dutcher v Hatch, 19 AD2d 341; Jackson v Nassau County Bd. of Supervisors, 818 F Supp 509; Yatauro v Mangano, 17 NY3d 420; Matter of Thomas v Bethlehem Steel Corp., 95 AD2d 118, 63 NY2d 150; B & F Bldg. Corp. v Liebig, 76 NY2d 689; Arbegast v Board of Educ. of S. New Berlin Cent. School, 65 NY2d 161; Brady v Village of Malverne, 76 AD3d 691, 16 NY3d 806.) II. Nassau County has no authority to enact a tax law inconsistent with any state law. (City of New York v State of New York, 94 NY2d 577; County Sec. v Seacord, 278 NY 34; Sonmax, Inc. v City of New York, 43 NY2d 253; New York Steam Corp. v City of New York, 268 NY 137.) III. Local Law No. 18-2010 of the County of Nassau is unconstitutional because it is inconsistent with the Real Property Tax Law. (Matter of O’Shea v Board of Assessors of Nassau County, 8 NY3d 249.) IV Local Law No. 18-2010 of the County of Nassau is void because it is impermissibly vague and has no rational relationship to its avowed purposes. (Grossman v Baumgartner, 17 NY2d 345; Matter of Levine v Whalen, 39 NY2d 510; Williams v Mayor of Baltimore, 289 US 36; People v Abrahams, 40 NY2d 277; Long Is. Coll. Hosp. v Whalen, 68 AD2d 274; American Sugar Ref. Co. of N.Y. v Waterfront Commn. of N.Y. Harbor, 55 NY2d 11; Matter of Shanty Hollow Corp. v Poladian, 23 AD2d 132, 17 NY2d 536; Matter of Orchard Hgts., Inc. v Yancy, 15 AD3d 854, 4 NY3d 710; Connally v General Constr. Co., 269 US 385; People v Stuart, 100 NY2d 412.) V. Local Law No. 18-2010 of the County of Nassau violates NY Constitution, article IX, § 1 because it transfers county functions and duties to the town and special districts without a referendum. (Matter of Heimbach v Mills, 67 AD2d 731; Rooney v City of Long Beach, 42 AD2d 34; Hausser v Giunta, 88 NY2d 449.)
   OPINION OF THE COURT

Abdus-Salaam, J.

In this case, we are presented with, essentially, the following question: may Nassau County pass a local law that shifts the obligation to pay real property tax refunds from the County to its individual taxing districts, thereby superseding a special state tax law? We answer this question in the negative. The State Constitution vests in the State and the counties only a definite and circumscribed set of powers. Beyond its constitutional authority, neither a county nor the State can act, regardless of the perceived wisdom of its conduct or the nobility of its aims. In the case before us, Nassau County ran afoul of these precepts by exceeding its statutory and constitutional authority in its attempt to supersede a special state tax law.

I

These two hybrid CPLR article 78 proceedings/declaratory judgment actions and one declaratory judgment action arise from the intersection of the State’s constitutional taxation power, Nassau County’s long history of substantial home rule and the State’s passage, at the County’s request, of a law that designates real property tax refunds as a county charge.

A

To understand some of the County’s present claims regarding the scope and origin of its power to pass local legislation, we must look to the genesis of those powers in the early 20th century. In the late 1930s, Nassau County elected to adopt an alternative form of government established by state legislation, and the County acquired local legislative powers under a state-drafted Charter and Administrative Code pursuant to article IX, § 2 of the 1938 State Constitution (see L 1936, ch 879; L 1937, ch 618, § 2; L 1939, ch 700, §§ 1-2; Nassau County Charter §§ 150-153). Under the Charter as amended by the Administrative Code, the County could levy taxes and “provide by ordinance a plan, not inconsistent with the terms of this [charter], for the assessment of property for tax purposes . . . the levy of taxes, the collection of taxes, [and] the accrual of penalties” (Nassau County Charter § 2201 [L 1936, ch 879, § 2201]; see Nassau County Charter § 103 [6] [L 1936, ch 879, § 103 (6)]). As will be explained (see infra part III), section 151 of the Charter forms the crux of the County’s appellate argument in the instant case. That section, entitled “Effect of local law on acts of State Legislature,” stated that, “[i]n adopting a local law changing or superseding any provision of an act of the State Legislature which provision does not in terms and in effect apply alike to all counties” (Nassau County Charter § 151 [L 1937, ch 618, § 2]), otherwise known as a “[s]pecial law” of the State (NY Const, art IX, § 3 [d] [4]), “the County Legislature shall specify the chapter number, year of enactment, title of statute, section, subsection or subdivision, which it is intended to change or supersede, but the failure so to specify shall not affect the validity of such local law” (Nassau County Charter § 151 [L 1937, ch 618, § 2]).

In addition, at the time of the Charter’s adoption, the County’s Board of Assessors conducted real property tax assessments and maintained the tax rolls (see generally Nassau County Charter §§ 601-607 [L 1936, ch 879, §§ 601-607]). The County Board of Supervisors would pay any real property tax refunds resulting from assessment errors to the taxpayers and then deduct the refunded amounts from the budgets of the taxing districts wherein the particular taxpayers resided (see Nassau County Charter § 122 [L 1936, ch 673, § 11]).

B

In 1948, the County Board of Supervisors sent a home rule message to the state legislature, requesting that the Administrative Code be amended to obligate the County, rather than the taxing districts, to pay any refunds resulting from the County’s erroneous assessment of real property taxes. In response, the legislature enacted chapter 851 of the Laws of 1948, which amended the County’s Administrative Code to provide as follows:

“Notwithstanding any provisions of this chapter, or any other general or special law to the contrary, any deficiency existing or hereafter arising from a decrease in an assessment or tax ... or by reason of exemptions or reductions of assessments shall be a county charge.” (Nassau County Administrative Code § 6-26.0 [b] [3] [c] [L 1948, ch 851, § 2]).

The amendment also stated that, in a proceeding to review such tax assessments or refunds (also called a tax certiorari proceeding), the party challenging the assessment had to serve any papers in connection with such a proceeding on the County’s Board of Assessors and not on “the clerk of any school district” (Nassau County Administrative Code § 6-17.3 [L 1948, ch 851, §3]). The newly amended section of the Administrative Code was commonly called the “County Guaranty.”

That same year, the legislature amended the Nassau County Charter to set forth a new procedure for tax extension, whereby the County’s assessors would project the taxes to be paid on a given property for the coming year (see Nassau County Charter § 607 [L 1948, ch 98, § 1]). The amended Charter also stated that “[a]ny surplus existing or hereafter arising from the extension of taxes in excess of amounts raised for the adopted budgets shall be credited to the county, and any deficiencies existing or hereafter arising from the extension of taxes for the adopted budgets shall be a county charge” (id.).

Explaining the purpose of the County Guaranty and the related amendments to the Charter, the County Attorney wrote to the Governor’s counsel that, in light of the fact that it was the county government

“whose members [we]re charged with the duty of preparing the assessment roles and extending the taxes, it [wa]s deemed to be in the best interests of the County of Nassau that section 607 of the Nassau County Government Law be amended to provide that any surplus existing or [thereafter arising from taxes in excess of the amounts raised for the adopted budgets shall be credited to the county, and any deficiencies existing or [thereafter arising from the extension of taxes for the adopted budgets shall be a county charge.” (Letter from County Attorney, Feb. 25, 1948 at 2, Bill Jacket, L 1948, ch 98).

The County Attorney reiterated this point in a second letter to the Governor’s counsel (see Letter from County Attorney, Mar. 8, 1948 at 2, Bill Jacket, L 1948, ch 851). The legislation’s sponsor in the State Assembly wrote to the Governor’s counsel to express a similar intent to make the County responsible for the relevant refunds because the County had made the assessment errors which the refunds were meant to correct (see Assembly Sponsor’s Mem, Bill Jacket, L 1948, ch 851 at 7-10; see also Matter of Steel Los III/Goya Foods, Inc. v Board of Assessors of County of Nassau, 10 NY3d 445, 453-454 [2008] [summarizing legislative intent behind the Guaranty]).

After the passage of the County Guaranty, the legislature enacted the Real Property Tax Law, which remains in effect today and requires that, in counties other than Nassau County, real property tax refunds be charged to the individual taxing districts within each county (see RPTL 726 [1]). Regarding Nassau County, however, the RPTL leaves the County Guaranty and its tax certiorari notice provisions intact (see RPTL 712 [2-a]). Thus, under state law from 1948 until the present, Nassau County must pay all real property tax refunds owed by the taxing districts within the County, whereas virtually every other county may shift that obligation onto the relevant taxing districts.

C

In 1963, the legislature and New York voters amended the Constitution’s home rule provisions, upon which the County relies heavily in this case. In particular, article IX, § 2 of the Constitution provides that, subject to any other applicable provisions of the Constitution, the legislature “[s]hall enact, and may from time to time amend, a statute of local governments granting to local governments powers including but not limited to those of local legislation and administration in addition to the powers vested in them by this article” (NY Const, art IX, § 2 [b] [1]).

Article IX, § 2 further states:

“In addition to powers granted in the statute of local governments or any other law, (i) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to its property, affairs or government and, (ii) every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law relating to the following subjects, whether or not they relate to the property, affairs or government of such local government, except to the extent that the legislature shall restrict the adoption of such a local law relating to other than the property, affairs or government of such local government: . . .
“The levy, collection and administration of local taxes authorized by the legislature and of assessments for local improvements, consistent with laws enacted by the legislature.” (NY Const, art IX, § 2 [c] and [c] [ii] [8] [emphasis added].)

Article IX, § 3 declares, among other things, that “[t]he provisions of this article shall not affect any existing valid provisions of acts of the legislature or of local legislation and such provisions shall continue in force until repealed, amended, modified or superseded in accordance with the provisions of this constitution” (NY Const, art IX, § 3 [b]).

Additionally, in 1963, the state legislature amended the Municipal Home Rule Law. As so amended, that statutory scheme now declares that, “[i]n addition to powers granted in the constitution, the statute of local governments or in any other law,” every local government “shall have [the] power to adopt and amend local laws not inconsistent with the provisions of the constitution or not inconsistent with any general law, relating to the following subjects,” including “[t]he collection of local taxes authorized by the legislature and of assessments for local improvements, which in the case of county, town or village local laws shall be consistent with laws enacted by the legislature” (Municipal Home Rule Law § 10 [1] [ii] [a] [9]). The Municipal Home Rule Law also permits counties to amend their charters in a manner consistent with applicable state laws and the Constitution (see Municipal Home Rule Law § 33), contains a savings clause retaining the counties’ existing powers under previously enacted statutes (see Municipal Home Rule Law § 35), and continues all existing laws, local laws and charters not expressly repealed (see Municipal Home Rule Law § 56).

At the same time, the Municipal Home Rule Law specifically declares that, “[ejxcept in accordance with provisions of this chapter or with other laws enacted by the legislature, a county charter or charter law shall not supersede any general or special law enacted by the legislature . . . [w]hich relates to the imposition, judicial review or distribution of the proceeds of taxes or benefit assessments” (Municipal Home Rule Law § 34 [3] [a]). The Municipal Home Rule Law defines a “charter law” as “[a] local law providing, amending or repealing a county charter, or transferring a function or a duty pursuant to section thirty-three-a of this chapter” (Municipal Home Rule Law § 32 [2]).

Of course, just as it did at the time of the 1963 amendments to the Constitution and the Municipal Home Rule Law, the Constitution currently contains a taxation article, which is essential to one of plaintiffs’ arguments before this Court. Article XVI of the Constitution provides that “[t]he power of taxation shall never be surrendered, suspended or contracted away, except as to securities issued for public purposes pursuant to law,” and that “[a]ny laws which delegate the taxing power shall specify the types of taxes which may be imposed thereunder and provide for their review” (NY Const, art XVI, § 1). Under that article, “[t]he legislature shall provide for the supervision, review and equalization of assessments for purposes of taxation” (NY Const, art XVI, § 2).

D

In recent years, Nassau County’s finances seriously declined. In 2002, the County Comptroller announced that the County had more than $2.8 billion in debt; the Comptroller blamed the debt burden in part on the unusually large number of tax certiorari proceedings in the county and in part on the County Guaranty (see Howard S. Weitzman, Nassau County Must Stop Paying School Tax Refunds [May 30, 2012], available at http:// www.nassaucountyny.gov/agencies/comptroller/Letters/5-3002.html [last visited Jan. 21, 2014]). As this financial decline continued, in 2010, the county legislature enacted Local Law 18, which it called the Common Sense Act. Local Law 18 purportedly amends the County’s Administrative Code by repealing the County Guaranty, deletes the section of the County Charter which requires the County to pay deficiencies arising from the extension process, and amends section 6-24.0 of the Administrative Code to state, “The County shall act in accordance with the provisions of the Real Property Tax Law with respect to the correction of assessment rolls and tax rolls” (Local Law No. 18-2010 of the County of Nassau § 3, available at https://www.nassaucountyny.gov/agencies/legis/documents/ locallawl8-10.pdf [last visited Jan. 21, 2014]). Local Law 18 specifies that, 10 days after a tax petitioner has served the County with a petition and notice for tax review, the petitioner must also mail a copy of those papers to the superintendent of any school district wherein the petitioner’s property lies (see id. §4). In sum and substance, Local Law 18 purportedly repeals the County Guaranty and allows the County to charge real property tax refunds back to the taxing districts.

II

After the passage of Local Law 18, various interested parties filed two hybrid CPLR article 78 proceedings/declaratory judgment actions and one declaratory judgment action in Supreme Court, Nassau County, challenging the validity of that local law. In the first action, numerous school districts and officials sued the County. In the second action, two taxpayers sued the County, its legislature and its executive. In the third action, various towns and special districts sued the County. In all actions, plaintiffs essentially sought a declaration that Local Law 18 was null, void and unenforceable because it violated, among other things, the Municipal Home Rule Law provisions limiting the powers of local government and the Constitution’s home rule and taxation articles. The County moved to dismiss the taxpayers’ suit for lack of standing and answered the remaining complaints. The cases were consolidated for discovery and decision.

Supreme Court denied the petitions and effectively granted summary judgment to the County in all three actions (see Matter of Baldwin Union Free Sch. Dist. v County of Nassau, 2012 NY Slip Op 30079[U], *1-7 [Sup Ct, Nassau County 2012]). In light of its disposition of the case, the court denied as academic the County’s motion to dismiss the taxpayer plaintiffs’ suit for lack of standing (see id. at *7). Plaintiffs appealed.

In an opinion by Justice Lott, the Appellate Division, Second Department unanimously reversed Supreme Court’s order, granted plaintiffs’ summary judgment motions and entered a declaratory judgment that Local Law 18 violated the Constitution and the Municipal Home Rule Law (see Matter of Baldwin Union Free Sch. Dist. v County of Nassau, 105 AD3d 113, 114-120 [2d Dept 2013]). In particular, the Appellate Division found that article IX, § 2 (c) of the Constitution prohibited Nassau County from enacting local tax laws, such as Local Law 18, that were inconsistent with general or special state laws because that constitutional provision required local tax legislation to be “consistent with laws enacted by the legislature” (id. at 118, quoting NY Const, art IX, § 2 [c] [ii] [8]). The court further determined that, because Municipal Home Rule Law § 34 precluded the establishment of any charter law which superseded a special or general state law “ ‘relating] to the imposition, judicial review or distribution of the proceeds of taxes or benefit assessments,’ ” the County could not supersede the County Guaranty’s distribution of tax refund charges by using Local Law 18 to charge tax over-assessments back to the taxing districts (id. at 118-119, quoting Municipal Home Rule Law § 34 [3] [a]).

Additionally, in the court’s view, the County Charter did not authorize the County to enact Local Law 18 and repeal the County Guaranty because the County Charter granted the County only those taxation powers permitted under the home rule article of the Constitution, which banned local tax laws that were inconsistent with special state laws (see id. at 119). Thus, given the lack of authority for Local Law 18 in the County Charter, the Constitution’s and the Municipal Home Rule Law’s savings clauses did not preserve the County’s nonexistent power to make charter laws altering the distribution of tax proceeds and assessments (see id.). The County appeals to this Court as of right pursuant to CPLR 5601 (b) (1), and we now affirm.

m

A

As limited by the State and Federal Constitutions’ protection of individual rights and restriction of state power, the State Constitution establishes the state government as the preeminent sovereign of New York, and the three coordinate branches of the state government may exercise the entire legislative, executive and judicial power of the State, as entrusted to them by the people (see NY Const, art III, § 1; art iy § 1; art VI; see generally Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 97 [1987]; People v De Jesus, 54 NY2d 465, 468 [1981]; Matter of City of New York, 217 NY 45, 52-53 [1916]; People v Morris, 13 Wend 325, 337 [1835]). Given that the authority of political subdivisions flows from the state government and is, in a sense, an exception to the state government’s otherwise plenary power, the lawmaking power of a county or other political subdivision “can be exercised only to the extent it has been delegated by the State” (Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372, 376 [1989]; see Matter of Cohen v Board of Appeals of Vil. of Saddle Rock, 100 NY2d 395, 399-401 [2003]).

Furthermore, because the Constitution expressly imbues the state government, rather than any locality, with “[t]he power of taxation” (NY Const, art XVI, § 1), state law governs the tax field unless the state legislature or the Constitution unambiguously delegates certain taxation authority to a political subdivision (see NY Const, art XVI, § 1; Expedia, Inc. v City of N.Y. Dept. of Fin., 22 NY3d 121, 130 [2013, Pigott, J., dissenting]; Matter of Board of Educ. of City School Dist. of City of N.Y. v City of New York, 41 NY2d 535, 542 [1977]; Sonmax, Inc. v City of New York, 43 NY2d 253, 257 [1977]; People v County of Westchester, 282 NY 224, 232 [1940]; County Sec. v Seacord, 278 NY 34, 37 [1938]). Indeed, “[t]he power of taxation, being a State function, the delegation of any part of that power to a subdivision of the State must be made in express terms,” and the delegation of any form of taxation authority “cannot be inferred” (County Sec., 278 NY at 37). So, too, “ ‘[t]he authority of a municipality to abrogate State law is never implied or inferred,’ ” but rather arises only from an “ ‘express grant, never from a general grant of power’ ” by the State (County of Westchester, 282 NY at 232, quoting Jewish Consumptives’ Relief Socy. v Town of Woodbury, 230 App Div 228, 234 [2d Dept 1930]); see Matter of Kress & Co. v Department of Health, 283 NY 55, 60 [1940]).

Perhaps the most significant delegation of state legislative authority is embodied in article IX of the Constitution, the home rule article (see NY Const art IX). Article IX “empower[s] municipalities to legislate in a wide range of matters relating to local concern,” and generally, “[s]o long as local legislation is not inconsistent with the State Constitution or any general law, localities may adopt local laws both with respect to their property, affairs or government, and with respect to other enumerated subjects, except to the extent that the legislature shall restrict the adoption of such a local law” (Albany Area Bldrs. Assn., 74 NY2d at 376 [internal quotation marks and citations omitted]; see New York State Club Assn. v City of New York, 69 NY2d 211, 217 [1987]). As previously noted, article IX permits localities to make laws with respect to “[t]he levy, collection and administration of local taxes authorized by the legislature and of assessments for local improvements,” but such local laws must be “consistent with laws enacted by the legislature” (NY Const, art IX, § 2 [c] [ii] [8]; see Sonmax, Inc., 43 NY2d at 257).

Under its Charter, Nassau County derives its ability to pass local legislation solely from article IX of the Constitution, and therefore the County cannot legislate in a manner inconsistent with the provisions of that article (see Nassau County Charter § 150 [1]). Although, within constitutional bounds, the Charter allows Nassau County to pass a tax plan by local ordinance and to provide for the administration of local real property taxes (see L 1936, ch 879; see also 41 Kew Gardens Rd. Assoc. v Tyburski, 70 NY2d 325, 332 [1987]), the Municipal Home Rule Law proscribes the enactment of local charter legislation that “supersede^] any general or special law enacted by the legislature . . . [w]hich relates to the imposition, judicial review or distribution of the proceeds of taxes or benefit assessments” (Municipal Home Rule Law § 34 [3] [a]). Even in the face of these restrictions, though, the County’s laws, like the duly enacted laws of any legitimate legislative body, carry a strong presumption of constitutionality (see 41 Kew Gardens Rd. Assoc., 70 NY2d at 333; see generally Brightonian Nursing Home v Daines, 21 NY3d 570, 575-577 [2013]).

For the reasons set forth below, we conclude that article IX of the Constitution and the Municipal Home Rule Law prohibited the County from passing Local Law 18. We therefore invalidate Local Law 18 without reaching plaintiffs’ remaining contentions.

B

To decide whether Nassau County acted within its authority in passing Local Law 18, we must first evaluate that enactment’s essential characteristics to determine its place within the constitutional framework described above.

The County does not dispute that, by enacting Local Law 18, it exercised the “power of taxation” within the meaning of article XVI of the Constitution. Thus, the County necessarily concedes that only a clearly expressed, rather than implied, grant of relevant legislative power could have authorized the passage of Local Law 18 and the repeal of the County Guaranty (see Castle Oil Corp. v City of New York, 89 NY2d 334, 339 [1996]; County Sec., 278 NY at 37).

The County is right to acknowledge Local Law 18’s place within the realm of article XVFs taxing power. The constitutional power of taxation extends not just to the collection of taxes or the setting of tax rates, but also to the administration of the tax system and the direct allocation of tax burdens and benefits (see Castle Oil Corp., 89 NY2d at 338-340 [finding a law prohibiting the deduction of a petroleum tax from income tax liabilities to be an exercise of the constitutional power of taxation]; Matter of Roosevelt Raceway v Monaghan, 9 NY2d 293, 306-309 [1961] [same with respect to any agreement to either provide state tax credit as an offset against a race track company’s federal income taxes or hold only a certain amount of tax revenue in a special account for the benefit of the company]; see also Matter of PNL Stillwater, LLC v Board of Assessors of Town of Stillwater, 94 AD3d 1401, 1401-1403 [3d Dept 2012] [same for procedures for the assessment of taxes and agreements to limit tax liability]). By requiring the taxing districts within Nassau County to pay real property tax refunds to the taxpayers, relieving the county government of that tax refund burden and specifying that the taxing districts shall be served with notice of tax certiorari proceedings, Local Law 18 directly alters the assignment of tax burdens and the administration of the tax system with respect to tax review proceedings. Thus, Local Law 18 is an exercise of the “power of taxation” which cannot stand unless the State has expressly delegated to the County the power to pass such a local tax law.

Local Law 18 also purports to supersede a special state law, the County Guaranty, and for that reason as well, Local Law 18 could be passed only pursuant to an express and unambiguous delegation of authority by the state legislature (see County of Westchester, 282 NY at 232; Kress & Co., 283 NY at 60; see also Matter of Niagara Mohawk Power Corp. v City of Fulton, 8 AD2d 523, 527 [4th Dept 1959]). In passing Local Law 18, the county legislature stated its intent to repeal the County Guaranty passed by the state legislature (see Local Law No. 18-2010 of the County of Nassau § 1), and Local Law 18 cites the specific Administrative Code provisions containing the County Guaranty and declares that they “are hereby repealed” (Local Law No. 18-2010 of the County of Nassau § 2). There can be no question, then, that Local Law 18 is a local tax law meant to supersede a special state tax law, and thus the County had no right to create Local Law 18 unless it had been empowered by the legislature to supersede special state tax laws (see Castle Oil Corp., 89 NY2d at 339; County of Westchester, 282 NY at 232).

Additionally, Local Law 18 is a charter law subject to the restrictions of Municipal Home Rule Law § 34 (3) (a). As we have previously observed, a law that amends the charter-related administrative code of a county is a “charter law” within the meaning of the Municipal Home Rule Law (see Matter of Gallagher v Regan, 42 NY2d 230, 233-235 [1977] [stating that public offices created by a county’s charter and by its administrative code were established pursuant to charter laws and therefore could not be abolished by a legislative act of lesser import]; see also Municipal Home Rule Law § 32 [2]). In light of Local Law 18’s attempted alteration of the County Administrative Code sections that collectively constitute the County Guaranty—a state enactment that had previously amended the County Charter—Local Law 18 is plainly a charter law within the scope of Municipal Home Rule Law § 34 (3) (a).

In short, Local Law 18 is a tax-related local charter law that purports to supersede a special state tax law. Accordingly, Local Law 18 may be sustained only to the extent that the legislature specifically authorized the County to enact local legislation with those characteristics.

C

The state legislature has not delegated to the County the prerogative to supersede a special state tax law, and this lack of authority is fatal to Local Law 18.

First, the County Charter, as established by the legislature, does not vest in the County the right to repeal a special state tax law. The primary County Charter provision relating to supersession, section 151, simply provides that, “[i]n adopting a local law changing or superseding any provision of an act of the State Legislature which provision does not in terms and in effect apply alike to all counties,” the County must specify the exact portions of the state law being superseded (County Charter § 151). Section 151 thus describes the procedure the County shall follow “[i]n adopting” a local law superseding a special state law, but it does not state that the County “shall have the power to adopt” local laws which repeal special state laws, “may adopt” such legislation, or anything to that effect. Accordingly, County Charter § 151 does not expressly confer upon the County any substantive authority to enact local laws which supersede special state tax laws.

In relying on County Charter § 151’s plain terms to interpret it as a procedural provision without any accompanying substantive authority, we do not mean to suggest that section 151 has no practical effect or import. County Charter § 151 still plays a vital role in the Charter’s scheme because it sets forth procedures which, in the event the legislature actually decides to endow the County with certain supersession powers, serve to adequately notify the County’s citizens and the state government of the claimed applicability of the local law and its apparent conflict with state law.

County Charter § 154 does not supply the necessary legislative rights so clearly absent from section 151. In that regard, County Charter § 154, denominated “Restriction on county legislation,” expressly prohibits the County from superseding state laws which raise the County’s debt limit, raise its annual tax revenues, or affect various fiscal, labor or regulatory matters (see Nassau County Charter § 154 [1]-[8] [L 1937, ch 618, § 2]). Section 154 does not specify that the County may supersede special state tax laws simply because that section prevents the County from superseding special state laws covering certain matters unrelated to taxation. One cannot infer from section 154’s limitations that the Charter silently grants the County any and all supersession powers that are not specifically prohibited by section 154 (see Kress & Co., 283 NY at 60; County Sec., 278 NY at 37). Accordingly, because nothing in sections 151 and 154 expressly delegates to the County the right to supersede special state tax laws, the County had no authority to enact Local Law 18, which purports to supplant a special state tax law.

To be sure, County Charter § 150 (1) grants the County powers of local legislation “under the provisions of’ article IX of the State Constitution. However, that article, upon which County Charter § 150 (1) depends, does not confer upon the County the ability to create local tax laws that supersede special state laws. Indeed, the Constitution actually forbids the County to pass any local tax law of that kind. Although article IX, § 2 declares that every local government shall have the power to pass local laws “relating to” the “levy, collection and administration of local taxes,” those local laws must be “consistent with laws enacted by the legislature” (see NY Const, art IX, § 2 [c] [ii] [8] [emphasis added]). By requiring that any local tax-related legislation be consistent with all “laws enacted by the legislature,” without distinguishing between general and special state laws, the relevant constitutional section plainly prohibits the County from passing local tax laws which conflict with special and/or general state laws. And, while the Constitution contains a savings clause that preserves any preexisting powers of local legislation granted by an act of the legislature (NY Const, art IX, § 3 [b]), as already mentioned, the County has no preexisting power to pass local laws that supersede special state tax laws. Therefore, the Constitution bars the County from exercising its powers of local legislation to supersede the County Guaranty.

In addition to the absence of constitutional or statutory authority allowing the County to enact Local Law 18, the Municipal Home Rule Law affirmatively prohibited the County from doing so. As discussed, Local Law 18 is a charter law, and Municipal Home Rule Law § 34 (3) (a) specifies that such a law “shall not supersede” any “special law” of the State “relating] to” the “judicial review or distribution” of tax proceeds or benefit assessments. Because the County Guaranty is a special state law which “relates to” the “distribution” of tax proceeds and benefits, the County could not enact Local Law 18 to supersede it.

D

Resisting the constitutional and statutory limits on its legislative powers, the County offers a host of arguments, but none of them are persuasive. For example, the County maintains that, because the County Charter originally conferred upon the County the right of home rule under article IX, § 2 of the 1938 Constitution, the County’s charter powers are not subject to the restrictions contained in the amended version of article IX passed in 1963. This assertion is perplexing, to say the least.

After all, amendments to the State Constitution do not preserve all preexisting provisions of the amended portion of the Constitution, thereby forever maintaining all prior delegations of state authority that are curtailed by the amendments themselves. Instead, the very purpose and effect of an amendment is to amend the relevant portion of the Constitution, effectively repealing and voiding any prior version of the particular section so amended (see Browne v City of New York, 213 App Div 206, 220 [1st Dept 1925], affd 241 NY 96 [1925] [“By that action of the electorate, article 12” of the Constitution, “as so amended, superseded article 12 as it existed at the time when these concurrent resolutions were acted upon by the Legislature, and . . . section 2 of article 12 as theretofore existing ceased to exist and the amended article took its place”]; see also People ex rel. Carter v Rice, 135 NY 473, 496-497 [1892] [stating that, where a new amendment to the Constitution is inconsistent with preexisting constitutional provisions or adopts a public policy that is clearly contrary to those prior provisions, “it is not too much to hold that in such a case the alterations and amendments which have been actually made in the course of the attempt to effect the change of policy, do in effect and by implication strike out and abrogate a provision which, by reason of the amendments, has no longer any excuse for existence”]; Popfinger v Yutte, 102 NY 38, 42 [1886] [concluding that an amendment to an article of the Constitution superseded the previous version of that article, such that the legislature no longer had the power to limit the jurisdiction of certain courts which it had enjoyed under the previous incarnation of that article]).

Applying that principle here, the County cannot continue to derive its home rule powers from the 1938 version of article IX, which was superseded by the 1963 amendments and therefore no longer exists. Nothing in the 1963 amendments preserved the 1938 constitutional home rule provisions, which did not include the requirement that local tax-related laws be consistent with state laws; the 1963 amendments preserved only preexisting statutory home rule powers (see NY Const, art IX, § 3 [b]). Consequently, at present, the County may exercise powers of local legislation only if it complies with the 1963 amendments’ requirement that local tax-related laws be consistent with state laws. To hold otherwise would leave the constitutional status of the State and the County in an intolerable limbo, governed by multiple Constitutions from different eras.

In any event, the legislature has evinced its intent to subject the County to the restrictions of the current form of article IX. After the adoption of article IX of the 1963 Constitution, the legislature continued to amend the Nassau County Charter (see e.g. L 1992, ch 717 [amending the Charter in relation to the imposition of an exigency tax and to allow the County to charge a recording tax on mortgages]), and the legislature declined the opportunity to remove the Charter’s reference to article IX or alter the Charter to explicitly invoke the 1938 version of that article. In maintaining the Charter’s reference to article IX subsequent to the 1963 amendments, the legislature evidently concluded that the current version of article IX should govern home rule in Nassau County. Accordingly, the current version of article IX, including its ban on local tax-related laws that conflict with special state laws, fully applies to the County and prohibits it from repealing the County Guaranty.

In the alternative, the County invites us to interpret the constitutional requirement that local tax laws be “consistent with laws enacted by the legislature” (NY Const, art IX, § 2 [c] [ii] [8]) to permit the County to pass local tax laws that are inconsistent with special state tax laws. Relying on the canon of statutory construction which holds that general language in a statute “is known by the company it keeps” (People v Illardo, 48 NY2d 408, 416 [1979]), the County argues that, because the sections of the Constitution surrounding the ban on legislation that is not consistent with “laws enacted by the legislature” (NY Const, art IX, § 2 [c] [ii] [8]) also prohibit local laws that are “inconsistent with . . . any general law” of the State (NY Const, art IX, § 2 [c] [emphasis added]), the seemingly broad phrase “consistent with laws” should be narrowed by the company it keeps to mean “consistent with general laws.” Therefore, in the County’s view, Local Law 18 complies with the relevant limitations because it is consistent with general state tax laws.

However, beneath its surface-level appeal, the County’s interpretation of article IX does not withstand close scrutiny. Tellingly, when the legislature defined the generic restrictions on conflicting local legislation using the term “general laws,” it removed the qualifier “general” from the comparable specific prohibition against local tax laws that are not consistent with state “laws” (compare NY Const, art IX, § 2 [c] with NY Const, art IX, § 2 [c] [ii] [8]). There is no reason to suppose, as the County apparently does, that the legislature casually excised the modifier “general” from the prohibition against local tax laws which are not consistent with state “laws,” and then somehow assumed that the word “general” would be read back into that restriction based on prior references to “general” laws in other related constitutional provisions. Rather, the legislature must have consciously omitted the term “general” from the prohibition against local tax laws that are not consistent with “laws enacted by the legislature,” thereby revealing an intent to broadly ban any local tax law that conflicts with a state law, whether general or special (see Matter of Albano v Kirby, 36 NY2d 526, 530 [1975] [“When different terms are used in various parts of a statute or rule, it is reasonable to assume that a distinction between them is intended”]). Moreover, given the overarching constitutional principle that the power of taxation lies with the State, any ambiguity in the constitutional restrictions on local legislation should be construed in favor of limiting local supersession of state tax laws.

The County asserts that Sonmax, Inc. v City of New York (43 NY2d 253 [1977]) governs the constitutional aspects of this case, but that is not so. In Sonmax, Inc., the State had passed a statute which allowed certain cities to choose to adopt special in rem tax foreclosure procedures, and the State had also enacted a series of special laws governing such foreclosures in New York City (see id. at 255-256). Eventually, the City passed its own local in rem tax foreclosure law, and certain tax petitioners challenged the local law (see id. at 255-257). Relying on the Municipal Home Rule Law provision that a local law must not be “inconsistent” with “any general law” of the State, the petitioners claimed that the City’s local law ran afoul of the state statute providing for optional foreclosure procedures, which the petitioners deemed a general state law (see id. at 257-258). We upheld the City’s local tax law (see id. at 255-256, 258). First, we noted that, while article IX of the Constitution mandated that neither city nor county laws could be “inconsistent” with a “general law” passed by the legislature, article IX imposed the additional requirement that local tax laws be “consistent with laws enacted by the legislature” only on counties and “not on cities” (id. at 257 [emphasis added]). Evaluating the City’s tax foreclosure law solely under the requirement that city laws not be inconsistent with general state laws, we concluded that, even assuming the relevant state statute was a general state law, the City’s law was not inconsistent with the state legislation because that state statute clearly permitted cities to choose unique local tax foreclosure procedures (see id. at 257-258).

Thus, Sonmax, Inc. merely stands for the proposition that, where a city law is not actually inconsistent with a general state law, the city law does not violate the Constitution’s “not inconsistent with general state laws” rule. By contrast, the instant case involves a conflict between a local law and a special state law, as well as the Constitution’s requirement that local tax laws be “consistent with laws” passed by the legislature, neither of which was at issue in Sonmax, Inc. Here, the “consistent with laws” rule applies to the County, and Local Law 18 violates that requirement because that local law is not, in fact, consistent with the County Guaranty enacted by the legislature.

IV

The County possesses substantial home rule powers, but the prerogative to impinge freely upon the State’s constitutional power of taxation, by means of superseding a special state tax law, is not among them. Because Local Law 18 was designed to achieve that impermissible intrusion, it is hereby declared unconstitutional, invalid, unenforceable and void. With respect to any policy concerns, “appeal lies to the ballot and to the legislative processes of democratic government, not to the courts” (Maresca v Cuomo, 64 NY2d 242, 249 [1984]).

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

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

Order affirmed, with costs.

      . According to an affidavit submitted by one of the plaintiffs in this litigation, the County attempted to prepare a home rule message asking the state legislature to repeal the Guaranty (see affidavit of Lorraine Deller ¶¶ 6-11). However, the record does not show that Nassau County has ever formally submitted to the legislature a home rule message seeking the repeal of the County Guaranty.

      . The Appellate Division did not address the standing issue raised by the County in Supreme Court, and before this Court, the County does not renew its claim that the taxpayer plaintiffs lack standing to bring a lawsuit challenging the validity of Local Law 18. In any event, it is beyond dispute that the municipal and official plaintiffs in the two other actions have standing to bring those suits, and thus we may properly rule on the validity of Local Law 18 in those actions without regard to the question of standing in the taxpayer plaintiffs’ case. Under these circumstances, we decline to express any opinion on the standing issue or set forth any particular precedential ruling with respect to standing.


source: Caselaw Access Project

author: Chief Judge Lippman.

license: Public Domain

text:
    [8 NE3d 308, 985 NYS2d 193]
    The People of the State of New York, Respondent, v Adrian P. Thomas, Appellant.
    Argued January 14, 2014;
    decided February 20, 2014

      POINTS OF COUNSEL

      Jerome K. Frost, P.C., Troy (Jerome K. Frost of counsel), and Ingrid Effman, for appellant.
    I. The trial court ought to have admitted expert testimony on the subject of police interrogation, coerced confessions, and false confessions to assist the jury in analyzing the 9V2-hour video-recorded interrogation of Adrian Thomas, replete with threats, misrepresentations and promises of leniency, given the paucity of evidence connecting Mr. Thomas to any criminal act or establishing that any crime was committed, and thereby assist them in deciding the veracity and voluntariness of Mr. Thomas’ confession. (People v Bedessie, 19 NY3d 147; People v Tankleff, 49 AD3d 160; Parker v Mobil Oil Corp., 7 NY3d 434; People v Wesley, 83 NY2d 417; People v Carroll, 95 NY2d 375; People v Taylor, 75 NY2d 277; People v Goldstein, 6 NY3d 119; Chambers v Mississippi, 410 US 284; People v LeGrand, 8 NY3d 449; United States v Hall, 974 F Supp 1198.) II. Mr. Thomas’ confession was involuntary under both the United States and New York State Constitutions and under CPL 60.45. (Garrity v New Jersey, 385 US 493; People v Avant, 33 NY2d 265; Spevack v Klein, 385 US 511; People v Keene, 148 AD2d 977; People v Helstrom, 50 AD2d 685; People v Aveni, 100 AD3d 228; People v Valletutti, 297 NY 226; Bram v United States, 168 US 532; People v Hilliard, 117 AD2d 969; People v Bay, 76 AD2d 592.) III. Mr. Thomas’ confession should be suppressed pursuant to Dunaway v New York (442 US 200 [1979]) and People v Misuis (47 NY2d 979 [1979]), as the fruit of an illegal arrest. (People v Chase, 85 NY2d 493; People v Balint, 92 AD2d 348; People v Anderson, 46 AD2d 150; People v Rice, 309 AD2d 1078.) IV The prosecution failed to show beyond a reasonable doubt all elements of depraved indifference murder. (People v Feingold, 7 NY3d 288; People v Suarez, 6 NY3d 202; People v Kibbe, 35 NY2d 407; People v Mills, 1 NY3d 269; People v Poplis, 30 NY2d 85; People v Roe, 74 NY2d 20; People v Mancini, 7 NY3d 767; People v Smith, 41 AD3d 964; People v Jamison, 45 AD3d 1438.) V The trial court erred in providing the jury statutory materials by means of juror note-taking in violation of CPL 310.20 and 310.30. (People v Miller, 18 NY3d 704; People v Hoffler, 53 AD3d 116; People v Owens, 69 NY2d 585; Rivers v Garden Way, 231 AD2d 50; People v Townsend, 94 AD3d 1330; People v Baker, 14 NY3d 266; People v Johnson, 181 AD2d 103, 81 NY2d 980; People v Anderson, 151 AD2d 335; People v Tucker, 77 NY2d 861.)

      Richard J. McNally, Jr., District Attorney, Troy (Kelly L. Egan of counsel), for respondent.
    I. Whether defendant’s statements were the fruits of an unlawful arrest and/or involuntary are mixed questions of fact and law. Because the affirmed findings here are supported by the record, these issues are beyond this Court’s limited jurisdiction and provide no basis for reversal of the judgment. (People v Gonzalez, 55 NY2d 720; Matter of Jimmy D., 15 NY3d 417; People v Paulman, 5 NY3d 122; People v Centono, 76 NY2d 837; People v Bongarzone-Suarrcy, 6 NY3d 787; People v Scott, 86 NY2d 864; People v Anderson, 42 NY2d 35; People v Mateo, 2 NY3d 383; People v Williams, 62 NY2d 285.) II. Defendant’s conviction of the depraved indifference murder of his infant son, under Penal Law § 125.25 (4), is amply supported by the evidence when viewed, as it now must be, in the light most favorable to the People. (People v Martinez, 20 NY3d 971; People v Contes, 60 NY2d 620; People v Bleakley, 69 NY2d 490; People v Ford, 66 NY2d 428; New York State Psychiatric Assn., Inc. v New York State Dept. of Health, 19 NY3d 17; Rankin v Shanker, 23 NY2d 111; People v Feingold, 7 NY3d 288; People v Matos, 19 NY3d 470; People v Lewie, 17 NY3d 348; People v Suarez, 6 NY3d 202.) III. The trial court’s decision, following a hearing, that the jury would not hear from Dr. Ofshe was not an abuse of its discretion. (People v Cronin, 60 NY2d 430; People v Crews, 18 Misc 3d 1120[A], 2008 NY Slip Op 50145[U], 74 AD3d 983; People v Knowles, 88 NY2d 763; People v Rosario, 20 Misc 3d 401, 100 AD3d 660; People v Wesley, 83 NY2d 417; People v Wernick, 89 NY2d 111; Parker v Mobil Oil Corp., 7 NY3d 434; People v Bedessie, 19 NY3d 147; People v LeGrand, 8 NY3d 449; People v Bennett, 79 NY2d 464.) IV The trial court did not commit reversible error in its response to the jury’s request for supplemental instructions in a manner that, it must be presumed, did not prejudice defendant. (People v Steinberg, 79 NY2d 673; People v Malloy, 55 NY2d 296; People v Stewart, 81 NY2d 877; People v DiLuca, 85 AD2d 439; People v Baker, 14 NY3d 266; People v Hues, 92 NY2d 413; People v Tucker, 153 AD2d 164, 77 NY2d 861; People v Owens, 69 NY2d 585; People v Anderson, 151 AD2d 335; People v Miller, 18 NY3d 704.)

      Legal Aid Society, New York City (Lorca Morello of counsel), for Legal Aid Society, amicus curiae.
    I. Appellant’s confession should be suppressed as having been coerced by threats, promises, and psychological manipulation that so distorted his perception of his situation as to constitute an overbearing of the will. (Culombe v Connecticut, 367 US 568; Miller v Fenton, 474 US 104; People v Anderson, 42 NY2d 35; People v Tarsia, 50 NY2d 1; Rogers v Richmond, 365 US 534; Malloy v Hogan, 378 US 1; Weidner v Thieret, 866 F2d 958; United States v Rutledge, 900 F2d 1127; Dickerson v United States, 530 US 428; Arizona v Fulminante, 499 US 279.) II. Appellant was denied a fair trial when the court precluded expert testimony on false confessions and police interrogation techniques despite his showing that the unreliability of the confession was the heart of his defense; the expert was qualified; the subject was not within the knowledge of the ordinary juror; and the testimony was supported by the consensus of the psychological community. (Crane v Kentucky, 476 US 683; People v Bedessie, 19 NY3d 147; People v LeGrand, 8 NY3d 449; People v Spicola, 16 NY3d 441; People v Lee, 96 NY2d 157; People v Cronin, 60 NY2d 430; United States v Criden, 648 F2d 814; People v Brown, 97 NY2d 500; People v Taylor, 75 NY2d 277; People v Diaz, 20 NY3d 569.)

      Adele Bernhard, New York City, for New York Law School Legal Service Post Conviction Innocence Clinic, amicus curiae.
    I. Wrongful conviction is an unacceptably serious risk in prosecutions that rest almost entirely upon disputed and untested scientific or medical hypotheses. (People v Lee, 96 NY2d 157; People v Cronin, 60 NY2d 430; Parker v Mobil Oil Corp., 7 NY3d 434; Aleman v Village of Hanover Park, 662 F3d 897.) II. Shaken baby syndrome is a problematic medicolegal hypothesis, both in its original formulation and as refined by emerging medical research. (Kumho Tire Co. v Carmichael, 526 US 137; General Electric Co. v Joiner, 522 US 136; Berk v St. Vincent’s Hosp. & Med. Ctr., 380 F Supp 2d 334.) III. The objective medical evidence in this case suggests that sepsis caused by streptococcus pneumoniae, rather than abuse, caused Matthew Thomas’s death. IV The “diagnosis” of abuse was marred by factual errors that produced biasing information about the cause of Matthew Thomas’s death. V A confession or incriminating statement is not scientific evidence of the presence or absence of a disease or cause of death when it is contradicted by laboratory tests and clinical findings. (Harris v Thompson, 698 F3d 609.)

      Wilmer Cutler Pickering Hale & Dorr LLP, Washington, D.C. (David W. Ogden, Daniel S. Volchok and Sonya L. Lebsack of counsel), and Nathalie F.P. Gilfoyle, for American Psychological Association, amicus curiae.
    I. Expert testimony regarding false confessions assists jurors in understanding critical evidence. (People v LeGrand, 8 NY3d 449; Miranda v Arizona, 384 US 436; United States v Shay, 57 F3d 126; People v Lee, 96 NY2d 157; People v Cronin, 60 NY2d 430; People v Carroll, 95 NY2d 375; People v Bedessie, 19 NY3d 147; United States v Hall, 93 F3d 1337; People v Taylor, 75 NY2d 277; Crane v Kentucky, 476 US 683.) II. Expert testimony regarding false confessions is reliable because it is based on established scientific research. (People v Wesley, 83 NY2d 417; People v LeGrand, 8 NY3d 449; Daubert v Merrell Dow Pharmaceuticals, Inc., 509 US 579; United States v Hall, 974 F Supp 1198; Kumho Tire Co. v Carmichael, 526 US 137; General Electric Co. v Joiner, 522 US 136; People v Taylor, 75 NY2d 277.) III. Expert testimony about false confessions is particularly critical where there is a lack of corroborating evidence. (People v LeGrand, 8 NY3d 449.)

      Milbank, Tweed, Hadley & McCloy LLP, New York City (Dorothy Heyl and LaTonya Brooks of counsel), for Innocence Network, amicus curiae.
    I. The interrogation of Adrian Thomas produced a coerced and unreliable confession. (People v Guilford, 21 NY3d 205; People v Anderson, 42 NY2d 35; People v De Jesus, 63 AD2d 148; People v Zimmer, 68 Misc 2d 1067, 40 AD2d 955; People v Leonard, 59 AD2d 1; Spano v New York, 360 US 315; Haynes v Washington, 373 US 503; People v Lyons, 4 AD3d 549; Rogers v Richmond, 365 US 534; Lynumn v Illinois, 372 US 528.) II. When a disputed confession is admitted into evidence, expert testimony on false confessions must be allowed as a necessary safeguard to prevent wrongful convictions. (People v LeGrand, 8 NY3d 449; People v Santiago, 17 NY3d 661; Colorado v Connelly, 479 US 157; People v Wesley, 83 NY2d 417; Parker v Mobil Oil Corp., 7 NY3d 434; People v Diaz, 20 NY3d 569; De Long v County of Erie, 60 NY2d 296; Selkowitz v County of Nassau, 45 NY2d 97; People v Cronin, 60 NY2d 430.) III. This Court should require the videotaping of complete interrogations in order that courts can adequately assess voluntariness and reliability. (People v Bedessie, 19 NY3d 147.)

      Kathleen M. Rice, District Attorney, Mineola (Hilary Hassler and Vincent Rivellese of counsel), for District Attorneys Association of the State of New York, amicus curiae.
    During an interrogation after a valid Miranda waiver, some police deception can be an appropriate investigative tool. Courts should continue to look to the totality of the circumstances to determine whether a statement is voluntary, and a statement should not be “deemed” involuntary on the basis of deceptive police conduct that did not coerce it. (Culombe v Connecticut, 367 US 568; Arizona v Fulminante, 499 US 279; Schneckloth v Bustamonte,
      412 US 218; Dickerson v United States, 530 US 428; Lego v Twomey, 404 US 477; People v Huntley, 15 NY2d 72; New York v Quarles, 467 US 649; Harris v New York, 401 US 222; Berkemer v McCarty, 468 US 420; People v Anderson, 42 NY2d 35.)

      Sharon L. McCarthy, New York City, Susan Hoffinger, K. Babe Howell, Christopher Ferguson, Angie Louie and Terri Rosenblatt for New York City Bar Association, amicus curiae.
    I. The combination of threats, promises, and lies used to persuade Adrian Thomas to adopt the police-generated confession narrative renders the “confession” involuntary under the totality of the circumstances. (People v Anderson, 42 NY2d 35; Rogers v Richmond, 365 US 534; Greenwald v Wisconsin, 390 US 519; Haynes v Washington, 373 US 503; Lynumn v Illinois, 372 US 528; Spano v New York, 360 US 315; People v Guilford, 21 NY3d 205; People v Holland, 48 NY2d 861; People v Helstrom, 50 AD2d 685, 40 NY2d 914; People v Keene, 148 AD2d 977.) II. Deception regarding the medical necessity of information to save the life of a loved one is “offensive to a civilized system of justice” and violates due process. (Miller v Fenton, 474 US 104; Haynes v Washington, 373 US 503; People v Aveni, 100 AD3d 228, 20 NY3d 1059; Rogers v Richmond, 365 US 534; People v Tarsia, 50 NY2d 1; People v Anderson, 42 NY2d 35; Spano v New York, 360 US 315.) III. The adversarial system relies upon the ability of the parties to present witnesses on critical issues at trial to achieve accurate outcomes; the denial of an expert on false confessions undermines this principle. (People v Bedessie, 19 NY3d 147; People v Pepper, 53 NY2d 213; United States v Hall, 974 F Supp 1198; People v Lee, 96 NY2d 157; People v Jones, 73 NY2d 427; People v Cronin, 60 NY2d 430; Crane v Kentucky, 476 US 683; Washington v Texas, 388 US 14; Chambers v Mississippi, 410 US 284; People v Carroll, 95 NY2d 375.)
   OPINION OF THE COURT

Chief Judge Lippman.

Defendant was convicted by a jury of murdering his four-month-old son, Matthew Thomas. The evidence considered by the jury included a statement in which he admitted that on three occasions during the week preceding the infant’s death he “slammed” Matthew down on a mattress just 17 inches above the floor and a videotape of defendant’s interrogation, near the end of which defendant, a particularly large individual, demonstrated how he raised the infant above his head and threw him down with great force on the low-lying mattress. The jury also heard testimony from the child’s treating doctors from Albany Medical Center, the medical examiner who performed the autopsy on Matthew, and an expert on child abuse from Brown Medical School. These witnesses, citing radiologic and postmortem findings of subdural fluid collections, brain swelling and retinal hemorrhaging, as well as defendant’s account of what he had done, said that Matthew died from intracranial injuries caused by abusively inflicted head trauma. Although defendant argued at trial and on appeal that the proof before the jury was insufficient to support a verdict finding him guilty of depraved indifference murder (Penal Law § 125.25 [4])—the theory charged—the argument was correctly rejected. Defendant’s written and videotaped confession together with the evidence presented by the prosecution’s medical experts sufficed to demonstrate that defendant, with depraved indifference to human life, recklessly engaged in conduct which created a grave risk of serious physical injury to the four-month-old infant and thereby caused the child’s death. Although there may have been uncertainty at the time of defendant’s trial and prior appeal as to whether a one-on-one killing of a helpless infant by an adult through the infliction of physical abuse could qualify as depraved indifference murder, it is now settled that it can (see People v Barboni, 21 NY3d 393, 403 [2013]), rendering defendant’s argument to the contrary unavailing. That the evidence was sufficient to support the conviction, however, does not end the inquiry we are assigned on this appeal before us by leave of a Judge of this Court (19 NY3d 1105 [2012]), since there is a persisting issue of law as to whether the jury should have had before it all the evidence it did. Inasmuch as we conclude that defendant’s inculpating statements were not demonstrably voluntary, we reverse the order of the Appellate Division affirming defendant’s conviction (93 AD3d 1019 [3d Dept 2012]), grant defendant’s previously denied motion to suppress those statements, and direct a new trial.

L

On the morning of September 21, 2008, defendant’s wife, Wilhelmina Hicks, awoke to discover that the couple’s four-month-old, prematurely born infant, Matthew, was limp and unresponsive. Emergency assistance was immediately summoned and the child was rushed to Samaritan Hospital in Troy, New York. There, he presented with a range of symptoms, including a low white blood cell count, irregular heartbeat, low blood pressure, severe dehydration and respiratory failure. The most likely differential diagnosis was noted by the treating emergency room doctor as septic shock, although intracranial injuries were also listed to be ruled out. Blood tests to confirm sepsis were performed, but their results were not immediately available. Meanwhile, the child was placed on massive doses of antibiotics.

In the early afternoon, Matthew was transferred to the Pediatric Intensive Care Unit at Albany Medical Center, where he continued to be treated for sepsis. The child’s treating physician concluded that his patient had been a victim of blunt force trauma—indeed, that the by-then moribund child had been “murdered.” (At the trial of the case, this doctor and other prosecution experts testified that blunt force trauma was indeed the cause of death; defense experts disputed this, attributing the death to sepsis, and the defense suggested that the treating doctor was misled by his initial impression, later proved wrong, that the child’s skull was fractured.) He so informed local child protective and law enforcement authorities on the evening of September 21st.

At the hearing upon defendant’s motion to suppress his inculpating statements, the course of the ensuing investigation was described through the testimony of Troy Police Sergeant Adam Mason and the video recording of defendant’s entire interrogation was placed in evidence. Mason stated that, based on the report that Matthew had been physically abused, he accompanied child protective workers to defendant’s home and assisted in the removal of defendant’s six other children. Defendant, who had been caring for the children while his wife was at the hospital with Matthew, remained at his residence subsequent to the removal. Hours later, the police returned and escorted defendant to an interrogation room at the Troy Central Police Station. There, they read the evidently distraught father his rights and commenced a course of videotaped interrogation. The interrogation lasted about 9V2 hours, broken into an initial two-hour and a subsequent 7V2-hour session. In between, defendant, having expressed suicidal thoughts during the initial interview, was involuntarily hospitalized pursuant to Mental Hygiene Law § 9.39 for some 15 hours in a secure psychiatric unit. By prearrangement, he was released back to his interrogators who immediately escorted him back to the police station where the interrogation resumed.

The premise of the interrogation was that an adult within the Thomas-Hicks household must have inflicted traumatic head injuries on the infant. Indeed one of the interrogating officers told defendant that he had been informed by Matthew’s doctor that Matthew had been “slammed into something very hard. It’s like a high speed impact in [a] vehicle. This baby was murdered . . . [TJhis baby is going to die and he was murdered.” The interrogators, however, repeatedly reassured defendant that they understood Matthew’s injuries to have been accidental. They said they were not investigating what they thought to be a crime and that once defendant had told them what had happened he could go home. He would not, they reassured over and again, be arrested. When, however, defendant continued to deny having hurt Matthew, even accidentally, the officers falsely represented that his wife had blamed him for Matthew’s injuries and then threatened that, if he did not take responsibility, they would “scoop” Ms. Hicks out from the hospital and bring her in, since one of them must have injured the child. By the end of the initial two-hour interrogation, defendant agreed to “take the fall” for his wife. He said that he had not harmed the child and did not believe that his wife had either because “she is a good wife,” but that he would take responsibility to keep her out of trouble.

Before the interrogation recommenced on the evening of September 22d, Matthew was pronounced brain dead. Nonetheless, the interrogating officers told defendant that he was alive and that his survival could depend on defendant’s disclosure of how he had caused the child’s injuries:

“SERGEANT MASON: The doctors need to know this. Do you want to save your baby’s life, all right? Do you want to save your baby’s life or do you want your baby to die tonight?
“[DEFENDANT]: No, I want to save his life.
“SERGEANT MASON: Are you sure about that? Because you don’t seem like you want to save your baby’s life right now. You seem like you’re beating around the bush with me.
“[DEFENDANT]: I’m not lying.
“SERGEANT MASON: You better find that memory right now Adrian, you’ve got to find that memory. This is important for your son’s life man. You know what happens when you find that memory? Maybe if we get this information, okay, maybe he’s able to save your son’s life. Maybe your wife forgives you for what happened. Maybe your family lives happier ever after. But you know what, if you can’t find that memory and those doctors can’t save your son’s life, then what kind of future are you going to have? Where’s it going to go? What’s going to happen if Matthew dies in that hospital tonight, man?”

About four hours into the second interrogation session defendant gave a statement. He said that, about 10 or 15 days before, he accidentally dropped Matthew five or six inches into his crib and Matthew hit his head “pretty hard.” He supposed that that impact caused Matthew’s brain injury. He also recalled accidentally bumping Matthew’s head with his head on the evening of September 20th. He noticed that Matthew’s breathing became labored, but was afraid to tell his wife what happened. Defendant would expand upon this statement, but before he did so a second officer, Sergeant Colaneri, entered the interrogation room. He claimed to have had experience with head injuries during his military service in Operation Desert Storm, and angrily accused defendant of lying—he said that Matthew’s injuries could only have resulted from a far greater application of force than defendant had described. Matthew’s doctors, he reported, had stated that the child’s head injuries were comparable to those that would have been sustained by a passenger in a high-speed car collision. After Colaneri left, Sergeant Mason, said that he felt betrayed by defendant’s untruthfulness and that he was doing all he could to stop his superior from having defendant arrested. Although he would acknowledge in his hearing testimony that he did not then have probable cause for defendant’s arrest, he represented to defendant that he was defendant’s last hope in forestalling criminal charges. He said that he could not help defendant unless defendant told him how he had caused Matthew’s injuries. He proposed that defendant had been depressed and emotionally overwhelmed after having been berated by his wife over his chronic unemployment and that, out of frustration, he had, without intending to harm the infant, responded to his crying by throwing him from above his head onto a low-lying mattress. He emphasized several times that, according to the doctor at the hospital, the child would have had to hit the mattress at a speed of 60 miles per hour to sustain the injuries from which he was suffering. He had defendant demonstrate with a clipboard how he threw the child down on the mattress, instructing:

“Move that chair out of the way. Here hold that like you hold the baby. Turn around, look at me. Now here’s the bed right here, all right. Now like I said, the doctor said that this injury is consistent with a 60 mile per hour vehicle crash, all right, all right. That means it was a very severe acceleration. It means he was going fast and stopped suddenly, all right, so think about that. Don’t try to downplay this and make like it’s not as severe as it is. Because [we] both know now you are finally starting to be honest, okay, all right. Maybe this other stuff you said is the truth.
“[DEFENDANT]: That is.
“SERGEANT MASON: For what the information that I need to know we both know now you are starting to finally be honest with that, all right. Hold that like you hold that baby, okay and start thinking about them negative things that your wife said to you, all right, start thinking about them kids crying all day and all night in your ear, your mother-in-law nagging you and your wife calling you a loser, all right, and let that aggression build up and show me how you threw Matthew on you bed, all right. Don’t try to sugar coat it and make it like it wasn’t that bad. Show me how hard you threw him on that bed.”

The ensuing enactment conforming to the Sergeant’s directions was captured on the interrogation video. Defendant then enlarged upon his prior statement, now admitting that, under circumstances precisely resembling those specified by Mason, he threw Matthew down on his mattress on the Wednesday, Thursday and Saturday preceding the child’s hospitalization.

Defendant’s motion to suppress his written and videotaped statements on the ground that they were not voluntary, but had been extracted by means of threats and misrepresentations to which he was specially vulnerable by reason of physical and emotional exhaustion, and upon the ground that the police tactics used during the interrogation created a substantial risk of false incrimination, was denied. In the decision and order we now review, the Appellate Division upheld the denial of suppression reasoning that the People met their burden at the Huntley hearing to prove defendant’s confession voluntary beyond a reasonable doubt (93 AD3d at 1026) and, relatedly, that the ploys and misrepresentations of defendant’s interrogators were not so serious as to offend due process (id.). The court found that the threat to arrest Ms. Hicks was “reasonable” (id. at 1028), and that the misrepresentation that Matthew’s life depended upon defendant’s disclosure of the manner in which he had caused the child’s injuries did not offend due process because it would not have elicited unreliable information. In the latter connection the court observed that “common sense dictates the . . . conclusion . . . that parents, aware of their child’s life threatening predicament, would accurately disclose any information that might enable doctors to save their child” (id. at 1027). As to the officers’ many reassurances that what was involved was an accident and that defendant would not be arrested—indeed, that he would be returning home—the court was of the view that they reflected the officers’ beliefs at the time they were given (id. at 1027-1028).

IL

It is the People’s burden to prove beyond a reasonable doubt that statements of a defendant they intend to rely upon at trial are voluntary (People v Guilford, 21 NY3d 205, 208 [2013]). To do that, they must show that the statements were not products of coercion, either physical or psychological (see Miranda v Arizona, 384 US 436, 448 [1966]), or, in other words, that they were given as a result of a “free and unconstrained choice by [their] maker” (Culombe v Connecticut, 367 US 568, 602 [1961]). The task is the same where deception is employed in the service of psychologically oriented interrogation; the statements must be proved, under the totality of the circumstances (see Guilford, 21 NY3d at 208)—necessarily including any potentially actuating deception—the product of the maker’s own choice. The choice to speak where speech may incriminate is constitutionally that of the individual, not the government, and the government may not effectively eliminate it by any coercive device. It is well established that not all deception of a suspect is coercive, but in extreme forms it may be. Whether deception or other psychologically directed stratagems actually eclipse individual will, will of course depend upon the facts of each case, both as they bear upon the means employed and the vulnerability of the declarant. There are cases, however, in which voluntariness may be determined as a matter of law—in which the facts of record permit but one legal conclusion as to whether the declarant’s will was overborne (see e.g. Guilford, supra). This, we believe, is such a case. What transpired during defendant’s interrogation was not consonant with, and, indeed, completely undermined, defendant’s right not to incriminate himself—to remain silent.

m.

Most prominent among the totality of the circumstances in this case is the set of highly coercive deceptions. They were of a kind sufficiently potent to nullify individual judgment in any ordinarily resolute person and were manifestly lethal to self-determination when deployed against defendant, an unsophisticated individual without experience in the criminal justice system.

It is established that interrogators may not threaten that the assertion of Fifth Amendment rights will result in harm to the interrogee’s vital interests. In Garrity v New Jersey (385 US 493 [1967]), police officers were convicted of conspiracy to obstruct justice on the basis of confessions made after the officers were threatened with the loss of their jobs if they asserted their Fifth Amendment rights. The Court held that the confessions were “infected by the coercion inherent in the scheme of questioning” and thus impossible to sustain as voluntary (id. at 496-498). In People v Avant (33 NY2d 265 [1973]) this Court, following Garrity, held that municipal contractors could not be pressured to make incriminating disclosures by threatening forfeiture of the right to bid on municipal contracts if they did not. Recognizing the breadth of the principle informing Garrity, Judge Breitel stated

“While there was once a different view, it is now . . . undisputed that one may not be ‘coerced’ into waiving his constitutional privilege by the withholding of a substantial right to engage in one’s occupation or of any other substantial or fundamental exercise of life, liberty, and the pursuit of happiness (Gardner v. Broderick, 392 U. S. 273, 279, supra; Garrity v. New Jersey, 385 U. S. 493, 497)” (id. at 273 [Breitel, J., concurring] [emphasis supplied]).

It was not consistent with the rule of Garrity and Auant to threaten that if defendant continued to deny responsibility for his child’s injury, his wife would be arrested and removed from his ailing child’s bedside. While the People and the Appellate Division viewed this threat as “reasonable,” the issue is not whether it reflected a reasonable investigative option, but whether it was permissibly marshaled to pressure defendant to speak against his penal interest. It was not. And, although the Appellate Division treated the threat as benign because defendant did not finally provide a complete confession until many hours had passed, it is clear that defendant’s agreement to “take the fall”—an immediate response to the threat against his wife—was pivotal to the course of the ensuing interrogation and instrumental to his final self-inculpation.

Another patently coercive representation made to defendant—one repeated some 21 times in the course of the interrogation—was that his disclosure of the circumstances under which he injured his child was essential to assist the doctors attempting to save the child’s life. We agree with the Appellate Division, and it is in any case self-evident, that these were representations of a sort that would prompt any ordinarily caring parent to provide whatever information they thought might be helpful, even if it was incriminating. Perhaps speaking in such a circumstance would amount to a valid waiver of the Fifth Amendment privilege if the underlying representations were true, but here they were false. These falsehoods were coercive by making defendant’s constitutionally protected option to remain silent seem valueless and respondent does not plausibly argue otherwise. Instead, it is contended that they did not render defendant’s ensuing statements involuntary because there was no substantial risk that appealing to defendant’s fatherly concern would elicit a false confession. It has long been established that what the Due Process Clause of the Fourteenth Amendment forbids is a coerced confession, regardless of whether it is likely to be true. In Rogers v Richmond (365 US 534 [1961, Frankfurter, J.]) the Court explained:

“Our decisions under that Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system—a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth. To be sure, confessions cruelly extorted may be and have been, to an unascertained extent, found to be untrustworthy. But the constitutional principle of excluding confessions that are not voluntary does not rest on this consideration. Indeed, in many of the cases in which the command of the Due Process Clause has compelled us to reverse state convictions involving the use of confessions obtained by impermissible methods, independent corroborating evidence left little doubt of the truth of what the defendant had confessed. Despite such verification, confessions were found to be the product of constitutionally impermissible methods in their inducement. Since a defendant had been subjected to pressures to which, under our accusatorial system, an accused should not be subjected, we were constrained to find that the procedures leading to his conviction had failed to afford him that due process of law which the Fourteenth Amendment guarantees” (id. at 540-541 [citations omitted]).

It is true that our state statute (CPL 60.45 [2] [b] [i]) treats as “involuntarily made” a statement elicited “by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself,” but this provision does not, and indeed cannot, displace the categorical constitutional prohibition on the receipt of coerced confessions, even those that are probably true (see Rogers, 365 US at 545 n 3 [“whether the question of admissibility is left to the jury or is determinable by the trial judge, it must be determined according to constitutional standards satisfying the Due Process Clause of the Fourteenth Amendment”]). As CPL 60.45’s enumeration of the various grounds upon which a statement may be deemed involuntary itself demonstrates, subdivision (2) (b) (i) constitutes an additional ground for excluding statements as “involuntarily made,” not a license for the admission of coerced statements a court might find reliable.

Additional support for the conclusion that defendant’s statements were not demonstrably voluntary, under the totality of the circumstances, can be found in the ubiquitous assurances offered by defendant’s interrogators, that whatever had happened was an accident, that he could be helped if he disclosed all, and that, once he had done so, he would not be arrested, but would be permitted to return home. In assessing all of the attendant circumstances, these assurances cannot be minimized on the basis that the eventual confession admitted behavior that could not be characterized as accidental. It is plain that defendant was cajoled into his inculpatory demonstration by these assurances—that they were essential to neutralizing his often expressed fear that what he was being asked to acknowledge and demonstrate was conduct bespeaking a wrongful intent. Defendant unquestionably relied upon these assurances, repeating with each admission that what he had done was an accident. These assurances, however, were false. From its inception, defendant’s interrogation had as its object obtaining a statement that would confirm the hypothesis that the infant had been murdered through physical abuse. That objective was incompatible with any true intermediate representation that what defendant did was just an accident. Had there been only a few such deceptive assurances, perhaps they might be deemed insufficient to raise a question as to whether defendant’s confession had been obtained in violation of due process. This record, however, is replete with false assurances. Defendant was told 67 times that what had been done to his son was an accident, 14 times that he would not be arrested, and eight times that he would be going home. These representations were, moreover, undeniably instrumental in the extraction of defendant’s most damaging admissions. When Sergeant Mason suggested that defendant had thrown Matthew down on the bed, defendant protested repeatedly that he was being asked to admit that he had intentionally harmed his son. To each such protest, Mason responded that what defendant had done was not intentional, often adding an elaborate explanation of why that was so. In this way, and after a final appeal from Mason to provide the “proper information to relate to the hospital and talk to the doctors to keep your son alive,” defendant at last agreed that he argued with Ms. Hicks and then threw Matthew down on the bed. Based on that admission, he would be prosecuted for murder. We do not decide whether these police techniques would themselves require suppression of defendant’s statements, but that they, taken in combination with the threat to arrest his wife and the deception about the child, reinforce our conclusion that, as a matter of law, defendant’s statements were involuntary.

IV

Defendant’s inculpating statements were also inadmissible as “involuntarily made” within the meaning of CPL 60.45 (2) (b) (i). The various misrepresentations and false assurances used to elicit and shape defendant’s admissions manifestly raised a substantial risk of false incrimination. Defendant initially agreed to take responsibility for his son’s injuries to save his wife from arrest. His subsequent confession provided no independent confirmation that he had in fact caused the child’s fatal injuries. Every scenario of trauma induced head injury equal to explaining the infant’s symptoms was suggested to defendant by his interrogators. Indeed, there is not a single inculpatory fact in defendant’s confession that was not suggested to him. He did not know what to say to save his wife and child from the harm he was led to believe his silence would cause. It was at Mason’s request and pursuant to his instructions that defendant finally purported to demonstrate how he threw the child. And after Mason said that he must have thrown the child still harder and after being exhorted not to “sugar coat” it, he did as he was bid. Shortly after this closely directed enactment, defendant was arrested.

Defendant’s admissions were not necessarily rendered more probably true by the medical findings of Matthew’s treating physicians. The agreement of his inculpatory account with the theory of injury advanced by those doctors can be readily understood as a congruence forged by the interrogation. The attainment of the interrogation’s goal, therefore, cannot instill confidence in the reliability of its result.

Inasmuch as we conclude that defendant’s confession should not have been placed before the jury, there is no need to address whether defendant’s expert should have been permitted to testify about the phenomenon of false confession and the interrogation techniques employed to elicit defendant’s admissions.

Accordingly, the order of the Appellate Division should be reversed, defendant’s motion to suppress statements granted and a new trial ordered.

Judges Graffeo, Read, Smith, Pigott, Rivera and AbdusSalaam concur.

Order reversed, defendant’s motion to suppress statements granted and a new trial ordered.

      . At the time of the events in question, defendant weighed well over 300 pounds.

      . There was no evidence that any of these other children were themselves abused or neglected.

      . The officer suggested that defendant had thrown the child down on his mattress after defendant adamantly denied throwing the child against a hard surface, i.e., the wall or the floor.