text:
    [66 NE3d 1062, 44 NYS3d 344]
    In the Matter of Entergy Nuclear Operations, Inc., et al., Respondents, v New York State Department of State et al., Appellants.
    Argued October 19, 2016;
    decided November 21, 2016

      POINTS OF COUNSEL

      Eric T Schneiderman, Attorney General, Albany (.Barbara D. Underwood, Andrew D. Bing, Frederick A. Brodie and Lisa M. Burianek of counsel), for appellants.

      Quinn Emanuel Urquhart & Sullivan, LLP, New York City CKathleen M. Sullivan, Sanford I. Weisburst, Yelena Konanova and Ellyde R. Thompson of counsel), Nixon Peabody LLP, Albany (Andrew C. Rose of counsel), Marcus V. Brown, Entergy Services, Inc., New Orleans, Louisiana and William B. Glew, Jr., Entergy Services, Inc., White Plains, for respondents.

      Deborah Brancato, Riverkeeper, Inc., Ossining, Hayley Carlock, Scenic Hudson, Inc., Poughkeepsie, and Manna Jo Greene, Hudson River Sloop Clearwater, Beacon, for River-keeper, Inc. and others, amici curiae.

      Singer/Bea LLP, San Francisco, California (Renee B. Bea, Adam S. Cashman, of the California bar, admitted pro hac vice, and Stephanie L. Cobau, of the California bar, admitted pro hac vice, of counsel), for African American Environmentalist Association and another, amici curiae.

      Winston & Strawn LLP, Washington, D.C. (David A. Repka of counsel), for Nuclear Energy Institute, amicus curiae.

      Hunton & Williams LLP, New York City (Shawn Patrick Regan of counsel), and Hunton & Williams LLP, Washington, D.C. (F. William Brownell of counsel), for Chamber of Commerce of the United States of America and another, amici curiae.

      Allegaert Berger & Vogel LLP, New York City (Part ha P. Chattoraj of counsel), for Emily Hammond, amicus curiae.

      Wollmuth Maher & Deutsch LLP, New York City (David H. Wollmuth, James J. Brennan and Nicholas G.O. Veliky of counsel), for New York State Senator Kevin S. Parker and others, amici curiae.
   OPINION OF THE COURT

Abdus-Salaam, J.

The issue presented is whether Entergy’s pending application to renew its federal operating licenses for the Indian Point nuclear reactors on the Hudson River in Westchester County, for an additional 20 years, is subject to review by the New York State Department of State for consistency with the policies of New York’s Coastal Management Program (CMP). The Department of State, interpreting the CMP, which it authored, concluded that the renewal application did not fit within the CMP’s grandfather exemptions and that Entergy’s application is therefore subject to review. An agency’s interpretation of its own plan or regulation “is deferentially reviewed by the courts to determine whether there is a rational basis for the decision and, if so, [the agency’s] conclusion must be upheld” (Matter of Terrace Ct., LLC v New York State Div. of Hous. & Community Renewal, 18 NY3d 446, 454 [2012]). We conclude that the Department of State’s determination is rational, and accordingly, the Appellate Division order holding that Indian Point is exempt from review should be reversed.

I.

Background

Entergy’s Indian Point nuclear facility has two active nuclear reactors, Indian Point 2 and Indian Point 3. The Nuclear Regulatory Commission’s (NRC) predecessor, the Atomic Energy Commission, issued 40-year operating licenses for Indian Point 2 in 1973 and Indian Point 3 in 1975, when Consolidated Edison owned all three reactors. The agency now known as the New York Power Authority acquired the licensed and partially-completed Indian Point 3 from Consolidated Edison in 1975. Entergy bought Indian Point 3 from the Power Authority in 2000 and acquired Indian Point 2 in 2001. En-tergy continues to operate the reactors under the original 40-year licenses in accordance with federal law (see 5 USC § 558; 10 CFR 2.109).

Federal law limits the term of a initial operating license to a maximum of 40 years (see 42 USC § 2133 [c]). In 1995, the NRC adopted its current “Part 54” regulations, authorizing the re-licensing of nuclear reactors for up to 20 years beyond the original term (see 10 CFR 54.31 [b]). A renewed operating license supersedes the original license (see 10 CFR 54.31 [c]). An application for a license to operate a nuclear facility requires the NRC to produce a final environmental impact statement, and an application for a re-license requires a supplemental site-specific environmental impact statement, which is in addition to the 2013 Generic Environmental Impact Statement for License Renewal of Nuclear Plants (see 10 CFR 51.20 [b] [2]; part 51, subpart A, Appendix B). The applicant is required to submit an environmental report to the NRC and to identify other necessary environmental permits and approvals (10 CFR 51.45, 51.53 [c]).

Congress adopted the Coastal Zone Management Act (the act) in 1972, to encourage the states to protect their coastal resources, with an aim “to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation’s coastal zone for this and succeeding generations” (16 USC § 1452 [1]). The act states that “[t]he key to more effective protection and use of the land and water resources of the coastal zone is to encourage the states to exercise their full authority” over coastal lands and waters by adopting coastal management programs of their own (16 USC § 1451 [i]). It provides that a coastal state can choose to draft a CMP, which is a “comprehensive statement . . . setting forth objectives, policies, and standards to guide public and private uses of lands and waters in the coastal zone” (16 USC § 1453 [12]). Upon completion, the state then submits the CMP to the United States Secretary of Commerce for authorization (see 16 USC § 1454).

The act mandates that once the Secretary has approved a state’s management program,

“any applicant for a required [federal license . . . affecting any land or water use or natural resource of the coastal zone of that state shall provide in the application to the licensing . . . agency a certification that the proposed activity complies with the enforceable policies of the state’s approved program and that such activity will be conducted in a manner consistent with the program” (16 USC § 1456 [c] [3] [A]).

Within six months of submission, the affected state must concur or object to the certification. Further, the act provides that “[n]o license or permit shall be granted by the [relevant] [federal agency” until the State or its designated agency has concurred with the certification, is deemed to have done so, or the Secretary overrides the State’s objection (16 USC § 1456 [c] [3] [A]). Federal regulations under the act require consistency review of renewal applications for federal licenses that affect any coastal use or resource where the activities were not previously reviewed by the designated state agency, where the activities are subject to new management changes, or where the renewal will cause an effect substantially different from those the state agency originally reviewed (see 15 CFR 930.51 [b] [1]-[3]). The act does not grant any exemptions or exceptions to the consistency requirement.

In 1982, New York adopted a CMP. The Department of State took the lead in preparing the CMP and administers it. The United States Secretary of Commerce approved the CMP and it became effective on September 30, 1982 (see 47 Fed Reg 47056-02 [1982]). The CMP sets forth 44 enforceable statewide policies relating to coastal activities against which federal license renewals and other federal actions affecting coastal resources must be assessed. State actions are also subject to review, but that review is not conducted by the Department of State but by the state agency proposing to take the action in accordance with the regulations promulgated by the Department (see 19 NYCRR 600.1, 600.3, 600.4; Executive Law § 919). The CMP’s statewide policies include protecting fish and wildlife resources; preventing or minimizing damage from flooding or erosion; meeting public energy needs in an environmentally safe manner; and controlling air and water pollution.

New York has designated its Department of State to review federal agency actions to ensure consistency with the 44 coastal policies set forth in the CMP. The Department conducts a federal consistency review of a proposed federal license application pursuant to the federally approved CMP (see 15 CFR 930.11 [h]). The CMP lists the issuance of an operating license for a nuclear facility as a reviewable activity that requires the applicant to submit a federal consistency certification to the Department. This requirement also expressly applies to renewals of federal licenses.

Certain projects are exempt from the CMP’s consistency requirement:

“The projects which meet one of the following two criteria have been determined to [b]e projects for which a substantial amount of time, money and effort have been expended, and will not be subject to New York State’s [CMP] and therefore will not be subject to review pursuant to the Federal consistency procedures of the Federal Coastal Zone Management Act of 1972, as amended: (1) those projects identified as grandfathered pursuant to [the] State Environmental [Q]uality Review Act [SEQRA] at the time of its enactment in 1976; and (2) those projects for which a final Environmental Impact Statement has been prepared prior to the effective date of the Department of State Part 600 regulations [see Appendix A, DOS Consistency Regulations, NYCRR Title 19, Part 600, 6600.3(4)]. If an applicant needs assistance to determine if its proposed action meets one of these two criteria, the applicant should contact the Department of State” (CMP, Part II, Section 9 at l).

The license for Indian Point 2 expired in September 2013 and the license for Indian Point 3 expired in December 2015. In 2007, Entergy applied to the NRC for a 20-year renewal of both operating licenses, and initially took the position with the NRC that its application was subject to the Department of State’s federal consistency review under the CMP. However, in 2012, Entergy changed its position and sought a ruling from the NRC that its re-licensing application was not subject to the Department’s review for consistency with the CMP. The State of New York opposed Entergy’s request and cross-moved for a declaratory ruling that consistency review was required. The NRC staff recommended that Entergy’s motion be denied because consistency review issues should be resolved by the Department of State in the first instance. On June 12, 2013, the NRC’s Atomic Safety and Licensing Board ruled that En-tergy’s motion and New York’s cross motion were premature because the New York State Department of State and the NRC staff had not yet consulted.

Entergy subsequently sought a declaratory ruling from the Department of State as to whether its license renewal application was exempt from the CMP’s consistency requirement. It argued that the license renewals were not subject to consistency review because, with respect to the first exemption, Indian Point 2 and 3 were grandfathered under the SEQRA (see ECL art 8; ECL 8-0111 [5] [a]) at the time of its enactment in 1976, and with respect to the second exemption, the facilities’ final environmental impact statements were adopted before the effective date of the Department of State regulations referenced in that exemption.

The Department of State determined that Entergy’s application to extend its operating licenses for 20 years was not exempt from consistency review under the CMP. Entergy then commenced this hybrid CPLR article 78 proceeding/declaratory judgment action seeking to annul the Department’s determination and requesting a declaratory judgment that the Indian Point nuclear reactors are not subject to the CMP. Supreme Court, among other things, upheld as rational the Department’s determination that neither exemption in the CMP applied, and dismissed the proceeding (42 Misc 3d 896 [Sup Ct, Albany County 2013]). The Appellate Division reversed, holding that Indian Point fit within the second of the two exemptions listed in the CMP (125 AD3d 21 [3d Dept 2014]). The Appellate Division did not address whether Indian Point had also met the criteria of the first listed exemption. We granted the Department of State appellants’ motion for leave to appeal (25 NY3d 908 [2015]).

II.

The Exemptions

In considering the Department of State’s interpretation of the exemptions set forth in the CMP, we are mindful of well-established principles that we recently reiterated and applied in Matter of Natural Resources Defense Council, Inc. v New York State Dept. of Envtl. Conservation (25 NY3d 373 [2015]). “[T]he construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld” and “[t]his Court treads gently in second-guessing the experience and expertise of state agencies charged with administering statutes and regulations” {id. at 397 [citations and internal quotation marks omitted]). While the CMP is not a statute or regulation, it is a program authored and administered by the Department of State, and approved by the United States Secretary of Commerce, that sets forth enforceable statewide policies. As such, the Department’s interpretation of that program is entitled to deference.

Regarding the first exemption, for “those projects identified as grandfathered pursuant to State Environmental [Q]uality Review Act [SEQRA] at the time of its enactment in 1976,” En-tergy contended before the Department of State that Indian Point 2 and 3 were identified as grandfathered pursuant to SEQRA at the time of its enactment. In response, the Department reasoned that the exemption was not automatic, that the relevant agency had to expressly identify the specific project as being exempt from SEQRA, and that the exemption from consistency was not coextensive with the SEQRA grandfathering provision. It looked to the “grandfathered projects lists,” established pursuant to SEQRA, in which each state agency provided “the director of the budget [with] a list of projects which such agency deem[ed] to have been approved” for the purposes of exempting those projects from SEQRA, even though the project was approved prior to SEQRA’s effective date {see L 1976, ch 228, § 5). Indian Point 2 was never on such a list. Thus, the Department concluded that it did not qualify for the first exemption. Regarding Indian Point 3, the Department noted that, in 1978, the New York Power Authority had included Indian Point 3 on such a list. Nevertheless, the Department concluded that this listing did not exempt the current re-licensing application as the 1978 listing was limited to construction of certain facilities and acquisition of certain real property and easements, none of which referred to the operation of Indian Point 3.

Supreme Court correctly determined that the Department of State’s interpretation of the first exemption is rational and should be upheld. The Department takes the position that the phrase “identified as grandfathered” must have some meaning beyond simply referencing SEQRA, or the exemption would have just said “grandfathered under SEQRA.” The word “identified” is reasonably interpreted by the Department as implying an affirmative step, such as the placing on a list. Furthermore, the CMP exemption refers to SEQRA legislation that was enacted in 1976, and as noted by the Department, the 1976 SEQRA legislation specifically directed state agencies to create a list of projects deemed approved and not subject to SEQRA (see L 1976, ch 228, § 5), whereas the more general grandfathering provision that Entergy would have us apply was adopted in the original SEQRA legislation in 1975 (see L 1975, ch 612). Thus, the Department of State’s interpretation of the first exemption—unlike Entergy’s—gives effect to the plain language of the exemption, and we uphold the Department’s conclusion that the first exemption is inapplicable to Indian Point.

The second exemption applies to “those projects for which a final Environmental Impact Statement has been prepared prior to the effective date of the Department of State Part 600 regulations,” with a reference to part 600 and section 600.3 (d). The Department determined that this exemption must be understood as exempting projects for which a SEQRA environmental impact statement had been prepared, and projects which preexisted, but would have otherwise been subject to, the part 600 regulations on their effective date. Context is important when considering this exemption. The part 600 regulations referenced in the bracketed language of the second exemption relate only to state agencies’ consistency review of their own actions and apply only to actions undertaken by state agencies. Thus, because the licensing of Indian Point did not involve a state agency reviewing its own actions, the Department of State rationally concluded that this exemption does not apply.

Additionally, the Department reasoned that the second CMP exemption directly references, and must be read in the context of 19 NYCRR 600.3 (d), which expressly references final environmental impact statements prepared pursuant to SEQRA. The Department explains that when it created the exemption, it was solving a transition problem. State actions are subject to review for consistency with the CMP, but that review—known as “state consistency review”—is conducted not by the Department of State but by the state agency proposing to take the action, in accordance with regulations promulgated by the Department. The exemption ensured that projects on which state agencies had invested time, effort, and resources in the preparation of a state environmental impact statement would not thereafter be required to undergo a consistency review. Stated differently, it exempted from consistency review only projects that had been subject to review under SEQRA but had not been subject to review for consistency with the State’s coastal policies because the part 600 regulations had not taken effect. There is no exemption for projects subject to federal environmental impact statements. Indeed, the plain language of the exemption implies that the reason for the second exemption was that the part 600 regulations were not yet available for use.

In light of this language, it was rational for the Department of State to reject Entergy’s argument that final environmental impact statements pursuant to the National Environmental Policy Act (NEPA) would satisfy this exemption, and that statements prepared under SEQRA are not required. In this appeal, Entergy, citing 6 NYCRR part 617, points out that SEQRA permits the use of final environmental impact statements prepared under NEPA. However, the Department of State rationally concluded that a federal environmental impact statement issued under NEPA before 1976 is not contemplated by the second exemption because the purpose of the exemption was to ensure that projects on which state agencies had invested time, effort, and resources in the preparation of a state environmental impact statement would not thereafter be required to undergo a consistency review.

The Appellate Division rejected as irrational the Department of State’s position that the final environmental impact statements must have been prepared pursuant to SEQRA. The Court was persuaded by Entergy’s argument that SEQRA permits the use of final environmental impact statements prepared under NEPA and that there is no indication that the final environmental impact statements prepared for Indian Point 2 and 3 would not have complied with SEQRA. But the fact that SEQRA permits the use of a statement prepared under NEPA misses the point. The Department’s interpretation is rational given the references to the part 600 regulations in the bracketed language of the second exemption and the explained purpose of the exemption; those regulations relate only to state agencies’ review of their own actions and apply only to actions undertaken by state agencies. In other words, it is the context of part 600, and not the definition of an environmental impact statement in part 617, that matters. When considered in context, the language of the exemption is tied to the Department’s intent in drafting the exemption.

Entergy also argues that, if the second exemption is interpreted as the Department of State contends, then the exemption never applied to anything, and is essentially a null set. However, the exemption did apply to something, but it only applied to projects by state agencies that were in progress as of the effective date of the CMP regulations and that, without the exemption, would have been subject to CMP review.

Finally, aside from Department of State’s interpretation of the specific language of the exemptions, it is plain that these narrow exemptions for projects that had final environmental impact statements completed prior to the adoption of the CMP do not apply to re-licensing. Entergy’s current application for a license to operate the Indian Point nuclear reactors for an additional 20 years is a new federal action, involving a new project, with different impacts and concerns than were present when the initial environmental impact statements were issued over 40 years ago. Thus, just as renewal of a license to operate a nuclear power plant triggers the requirement that the NRC produce a supplemental environmental impact statement (see 10 CFR 51.20), both the Coastal Zone Management Act and the CMP require consistency review for re-licensing of nuclear facilities. The Department’s position that the Indian Point reactors are not forever exempt from consistency review under the CMP is reasonable.

In sum, the Department of State’s interpretation of the exemptions in the Coastal Management Program, and its conclusion that Entergy’s application to re-license the nuclear reactors at Indian Point is subject to consistency review are rational, and must be sustained. Accordingly, the Appellate Division order should be reversed, with costs, the petition denied, and judgment granted in favor of the Department of State appellants in accordance with this opinion.

Chief Judge DiFiore and Judges Pigott, Rivera, Stein, Fahey and Garcia concur.

Order reversed, with costs, petition denied, and judgment granted in favor of appellants in accordance with the opinion herein.

      . Indian Point 1 ceased generating electricity in 1974.

      . United States Nuclear Regulatory Commission, Reactor License Renewal, http://www.nrc.gov/reactors/operating/licensing/renewal/ overview.html (accessed Oct. 31, 2016).

      . New York State Coastal Management Program and Final Environmental Impact Statement, http://www.dos.ny.gov/opd/programs/pdfs/NY_CMP.pdf (accessed Oct. 25, 2016), cached at http://www.nycourts.gov/reporter/webdocs/ NY_CMP.pdf.

      . As noted by the Appellate Division, the provision contains a typographical error in the original text, and the parties concur that the reference to section 6600.3 (4) is intended to refer to 19 NYCRR 600.3 (4), which is now codified at 19 NYCRR 600.3 (d).

      . See State of New York Response to Entergy’s Request to the Atomic Safety and Licensing Board for a Declaratory Order Concerning Coastal Zone Management Act Issues and Cross-Motion for Declaratory Order, http:// pbadupws.nrc.gov/docs/ML1309/ML13095A481.pdf (accessed Oct. 25, 2016).

      . See Matter of Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), http://pbadupws.nrc.gov/docs/ML1316/ ML13163A233.pdf (accessed Oct. 25, 2016).

      . By determination dated November 6, 2015, the Department of State completed its consistency review and objected to Entergy’s certification of consistency with the CMP. That determination is not before us.

      . It is also worth noting that a federal environmental impact statement does not necessarily or automatically satisfy SEQRA, as the regulation obviates the need for a SEQRA environmental impact statement only insofar as a federal environmental impact statement “is sufficient to make findings” under the SEQRA regulations (6 NYCRR 617.15 [a]).

      . The Department has informed this Court that in September 2016, it submitted to the National Oceanic and Atmospheric Administration’s Office of Ocean and Coastal Resource Management a routine program change to the CMP that would eliminate certain provisions that the Department has concluded are obsolete, including the exemptions at issue in this appeal.

      . As noted by the Department, it has previously conducted federal consistency reviews of NRC license renewal applications for three other aged nuclear power plants located in New York—the James A. FitzPatrick power plant, the R.E. Ginna nuclear plant, and the Nine Mile Point Unit 1 plant.


source: Caselaw Access Project

author: Chief Judge DiFiore. Rivera, J.

license: Public Domain

text:
    [66 NE3d 1076, 44 NYS3d 358]
    The People of the State of New York, Appellant-Respondent, v Matthew A. Davis, Respondent-Appellant.
    Argued October 14, 2016;
    decided November 21, 2016

      POINTS OF COUNSEL

      Michael J. Violante, District Attorney, Lockport (Laura J. Bittner, Thomas H. Brandt and Theodore A. Brenner of counsel), for appellant-respondent.

      Patricia M. McGrath, Lockport, for respondent-appellant.
   OPINION OF THE COURT

Chief Judge DiFiore.

In this appeal, we conclude that there was legally sufficient evidence to support the jury’s findings that defendant’s assault of the victim during a home invasion was an actual contributory cause of the victim’s death and that the victim’s death, induced by the stress of the violent event, was a reasonably foreseeable result of defendant’s conduct. We therefore modify the Appellate Division order and remit the case to the Appellate Division.

L

The victim was found dead on the floor of his second-floor apartment, lying amongst the remnants of his broken coffee table, two days after he was assaulted during a robbery-burglary of his home. Photographs of the scene depicted blood spatter in the living room and blood smeared on the couch, wholly consistent with a violent assault, as well as the victim’s body lying among the evidence of a violent encounter. Subsequent investigation revealed the involvement of defendant and his two accomplices, Teara Fatico and Chasity Wilson. Both Fatico and Wilson were indicted and pleaded guilty. Fatico, who pleaded guilty to attempted burglary, testified at trial as an accomplice as a matter of law. The evidence at trial was as follows.

On August 21, 2011, the victim sent Fatico a private Face-book message to which defendant, Fatico’s then boyfriend, responded on her behalf. In that message, defendant, acting as Fatico, informed the victim that she and Wilson would be coming over to his apartment. The three planned for Fatico and Wilson to go to the victim’s apartment and determine if it contained valuables and drugs to steal. That night, defendant drove Fatico and Wilson to the victim’s apartment complex, which was equipped with a secure front door and an electronic surveillance system. Video clips and still photographs from that surveillance system corroborate Fatico’s testimony as to the comings and goings of all three accomplices in the building. Those video clips show that Fatico, Wilson, and the victim entered the building at 12:03 a.m. and walked upstairs toward the victim’s second-floor apartment.

Inside the victim’s apartment, Fatico, Wilson, and the victim smoked marijuana. As corroborated by cell phone records, Fatico maintained phone contact with defendant while she was with the victim. Fatico and Wilson left the victim’s apartment to meet up with defendant. After the two accomplices told defendant that the victim had jars of marijuana in his apartment, the threesome moved to the next stage of the plan to rob the victim. Fatico sent a text to the victim, informing him that she and Wilson would be returning to his apartment, which they did. Video clips show that the victim let Fatico and Wilson back into the building at 1:37 a.m.

Approximately 15 minutes later, Fatico left the victim’s apartment, went downstairs, and let defendant, who is depicted on video wearing a white T-shirt draped over his head to shield his face from the surveillance cameras, into the building. Surveillance footage also shows defendant, with the white T-shirt still draped over his head, on the second floor of the apartment building in the area of the victim’s apartment. Defendant appears to be wearing gloves. Fatico, who had since exited, the building with defendant’s keys, waited in defendant’s van. Minutes later, Wilson left the building and joined her. Defendant phoned Fatico approximately 13 minutes later, asking to be picked up. After exiting the victim’s apartment, defendant is captured on surveillance footage, covering his face with a jacket and carrying a white garbage bag, in the second-floor hallway as well as leaving the building.

When defendant returned to the car, he was carrying the white garbage bag. The trio drove to Fatico’s house where defendant revealed that the white bag contained jars of marijuana, which Fatico recognized as being from the victim’s apartment. Defendant claimed that the victim told him to “just take it and go.” The victim’s body was discovered in the apartment two days later, when a family member, unable to make contact with the victim, notified the apartment building’s maintenance supervisor.

Defendant was indicted for two counts of murder in the second degree (felony murder) (Penal Law § 125.25 [3]), and one count each of burglary in the first degree (Penal Law § 140.30 [2]) and robbery in the first degree (Penal Law § 160.15 [1]).

At trial, the Chief Medical Examiner of the Erie County Medical Examiner’s Office, who did not herself prepare the autopsy report, testified with respect to the autopsy findings as to the victim’s injuries and cause of death. The autopsy revealed that the victim’s physical injuries included: lacerations to the upper lip, right temple, and nose; fractures of the lower jaw and nasal skeleton; and hemorrhage in the right eye—all of which, according to the Medical Examiner, were consistent with blunt force injury. The victim also suffered from the natural diseases of obesity and hypertensive cardiovascular disease, or more specifically, enlargement of the heart. Based on the autopsy findings, the Medical Examiner testified that the cause of death was “Hypertensive Cardiovascular Disease,” with the contributing factor of obesity. The manner of death, however, was listed on the autopsy report as “Undetermined.” The Medical Examiner further testified that “[s] tress of any kind can hasten a person’s demise by cardiovascular disease” and, while the victim’s physical injuries themselves did not cause his death, “the stress that they caused[,] . . . given [the victim’s] underlying heart disease [,] led to his death.” The Medical Examiner opined that “but for a violent struggle,” the victim would not have died at the time that he did. She explained that the manner of death was classified on the report as “[u]ndetermined” based on the inability to discern, on the facts known, between other manners of death, including natural and homicide. The Medical Examiner testified that it was her opinion that the evidence pointed towards a non-natural manner of death but that the ultimate conclusion was for the trier of fact.

The jury convicted defendant as charged. The Appellate Division unanimously modified, on the law, by reversing defendant’s convictions for murder in the second degree and dismissing those counts of the indictment (126 AD3d 1516 [4th Dept 2015]). The Court held “that the People failed to prove beyond a reasonable doubt that it was reasonably foreseeable that defendant’s actions, i.e., unlawfully entering the victim’s apartment and assaulting him, would cause the victim’s death” (id. at 1517). The Court opined that, despite the Medical Examiner’s testimony that defendant caused the victim’s death, she “did not testify that defendant’s culpable act was a direct cause of the death or that the fatal result was reasonably foreseeable,” and, thus, the evidence was legally insufficient (id.). The judgment was otherwise affirmed, with the Court determining that “[t]he accomplice’s testimony was amply corroborated by, inter alia, a surveillance video from a camera inside the victim’s apartment building and telephone records showing numerous cell phone calls between defendant and the accomplice shortly before and immediately after the crimes were committed” (id. at 1517-1518). Finally, the Court concluded that defendant’s remaining contentions were without merit.

A Judge of this Court granted both the People and defendant leave to appeal (26 NY3d 966 [2015]).

h-H hH

The primary issue in this appeal is whether legally sufficient evidence supported defendant’s felony murder convictions. We therefore view “the facts in a light most favorable to the People” to determine whether “ ‘there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt’ ” (People v Danielson, 9 NY3d 342, 349 [2007] [citations omitted]).

We agree with the People that the evidence at trial was sufficient to support defendant’s convictions.

A.

With respect to felony murder in the second degree, the People were required to prove that, in the course of committing robbery and burglary, defendant caused the death of the victim (see Penal Law § 125.25 [3]), i.e., that defendant’s conduct was “a sufficiently direct cause” of the victim’s death (see People v Matos, 83 NY2d 509, 511 [1994]). Sufficiently direct causation is established by proof of the following: (1) that defendant’s actions were “an actual contributory cause of [the] death, in the sense that they ‘forged a link in the chain of causes which actually brought about the death’ ” (Matter of Anthony M., 63 NY2d 270, 280 [1984], quoting People v Stewart, 40 NY2d 692, 697 [1976]); and (2) that “the fatal result was reasonably foreseeable” (People v Hernandez, 82 NY2d 309, 314 [1993]). Here, the jury was properly instructed on the law as to the two-pronged standard to establish causation.

With respect to defendant’s actions being “an actual contributory cause of [the] death,” we have explained that so long as “the necessary causative link is established, other causes, such as a victim’s preexisting condition, will not relieve the defendant of responsibility for homicide” (see Anthony M., 63 NY2d at 280). In Matter of Anthony M., the defendant grabbed the handbag of an elderly victim with a history of heart-related illness, causing the victim to fall to the ground (see id. at 276). The victim was hospitalized with a fractured hip and other injuries; she died of a myocardial infarction approximately 10 days later (see id.). An expert medical witness opined that the cause of death was the stress of the mugging, in combination with the hip fracture and subsequent surgery, which “ ‘precipitated the myocardial infarction with subsequent cardiac arrest and ultimate death’ ” (id. at 277).

In the companion case People v Cable, two defendants robbed an 89-year-old victim and his wife in their Manhattan apartment (see id.). The victim died of a myocardial infarction two days later (see id. at 278). At trial, the experts disagreed as to when the myocardial infarction occurred, but one medical examiner opined that “the emotional and physical trauma of the burglary caused [the victim’s] heart attack” (id. at 279). With respect to both cases, we held that the jury was entitled to accept the expert testimony and find that causation had been established, noting that “the testimony of the medical expert [s] that there was a causal link [was not] so baseless or riddled with contradiction that it was unworthy of belief as a matter of law” (see id. at 281; see People v Ingram, 67 NY2d 897, 899 [1986] [concluding that medical expert’s testimony that the victim “died of (a) myocardial infarction precipitated by the stress of finding a burglar in his home . . . was sufficient under applicable legal standards”]).

Here, the Medical Examiner’s testimony, in conjunction with the crime scene evidence, established a sufficient causal connection between defendant’s infliction of blunt force trauma injuries during the violent home invasion and the victim’s death. Specifically, the Medical Examiner testified that “[s] tress of any kind can hasten a person’s demise by cardiovascular disease” and that, here, the stress caused by the injuries inflicted by defendant, “given [the victim’s] underlying heart disease!,] led to his death.” That testimony, along with the crime scene evidence that defendant’s beating of the victim was severe and immediate in its consequences, “was sufficient to prove that defendant’s conduct ‘set in motion and legally caused the death’ of” the victim (People v DaCosta, 6 NY3d 181, 185 [2006], quoting Matos, 83 NY2d at 511). Thus, the jury could have reasonably concluded that defendant’s conduct was an actual contributory cause of the victim’s death.

With respect to foreseeability of the death, the People must prove “that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused” (People v Kibbe, 35 NY2d 407, 412 [1974], citing 1 Wharton, Criminal Law Procedure § 169). In this case, defendant violently attacked the victim, in his home, breaking his jaw and leaving him on the floor in a blood-spattered room where he was found dead. From all of the evidence and the circumstances surrounding this violent encounter, the proof was sufficient to permit the jury to conclude that the victim’s heart failure, induced by the extreme stress and trauma of such a violent assault, was a directly foreseeable consequence of defendant’s conduct (see Matos, 83 NY2d at 511-512).

Defendant’s argument to the contrary disregards the controlling law and blurs the distinction between the “cause of death” and “manner of death.” As the Medical Examiner testified, the cause of death, based on the autopsy of the body, was “Hypertensive Cardiovascular Disease,” but the manner of death, derived from the facts and circumstances surrounding the death, was listed on the report as “Undetermined.” The jury must consider the evidence of the facts and circumstances of the victim’s death in determining causation and is not bound by an “undetermined” classification in a report that is not informed by the witnesses’ trial testimony and corroborative evidence. We conclude that the trial evidence adduced as to the manner of death created a question of fact for the jury regarding foreseeability, particularly given the violence of the encounter. Viewed in a light most favorable to the People, the' evidence on causation was sufficient to support defendant’s felony murder convictions.

B.

Defendant also argues that the evidence was insufficient to support his convictions for burglary in the first, degree and robbery in the first degree because the only evidence to support those convictions was Fatico’s accomplice testimony. Pursuant to CPL 60.22 (1), “[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.” However,

“ ‘[t]he corroborative evidence need not show the commission of the crime; it need not show that defendant was connected with the commission of the crime. It is enough if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth’ ” (People v Reome, 15 NY3d 188, 191-192 [2010], quoting People v Dixon, 231 NY 111, 116 [1921]).

Here, the video clips depicting a man who physically resembled defendant and the detailed phone records of all three accomplices “ ‘so harmonize[d] with the accomplice’s narrative as to have a tendency to furnish the necessary connection between defendant and the crime’ ” (id. at 194, quoting Dixon, 231 NY at 116-117).

Defendant’s remaining contentions regarding the sufficiency of the evidence to support his convictions are without merit.

HH HH )—I

Finally, defendant argues that the trial court erred in denying his motion to preclude further use of the DVD of video clips culled from the building’s surveillance system at trial. The authenticating witness, who maintained the surveillance system, testified that during the computerized process of compressing and archiving the digital video files, certain images may overlap. However, he further testified that the process, which he personally conducted, does not conjure up persons that were not originally present in the camera shot. As such, the trial court did not abuse its discretion in concluding that the image-overlap issue went to weight, but not admissibility, of the video evidence (see People v Patterson, 93 NY2d 80, 84 [1999]).

Accordingly, the order of the Appellate Division should be modified in accordance with this opinion, the case remitted to that Court for consideration of the facts, and, as so modified, affirmed.

Rivera, J.

(dissenting in part). Defendant was convicted for the death of a 41-year-old, well-developed male who was six feet, one inch, weighed 270 pounds, and suffered from hypertensive cardiovascular disease, on the theory that the injuries suffered during a struggle with the defendant precipitated the victim’s death from heart disease. To establish defendant’s guilt for second-degree felony murder, the People had to prove beyond a reasonable doubt that in the course of committing a robbery and burglary defendant caused the victim’s death (Penal Law § 125.25 [3]). Causation for criminal liability requires both that the “culpable act [was] ‘a sufficiently direct cause’ of the death” and that the “fatal result was reasonably foreseeable” (People v Hernandez, 82 NY2d 309, 313-314 [1993], citing Matter of Anthony M., 63 NY2d 270, 280 [1984]). I disagree with the majority that the People carried their burden to establish that the death was a foreseeable consequence of defendant’s actions.

According to the trial evidence, during a struggle with defendant, the victim suffered a broken jaw and nose, as well as several lacerations to his face. Though there was a significant loss of blood, the victim did not suffer any internal trauma to his head, neck, or torso, and the medical examiner who conducted the autopsy characterized the injuries, either individually or combined, as “not significant enough to cause or contribute to death.” The cause of death was identified as hypertensive cardiovascular disease, of which obesity was a contributing factor. The People submitted testimony from a medical examiner who did not conduct the autopsy, who opined that the injuries did not cause the victim’s death but that the stress associated with the injuries “given [the victim’s] underlying heart disease led to his death.” In other words, the struggle-induced stress combined with the victim’s obesity and preexisting heart condition led to the victim’s death.

Prior cases in which the Court determined that a victim’s death was foreseeable involved a defendant’s direct causative action that put the victim at obvious risk of death—conduct not present in defendant’s case. For example, in Hernandez, an armed defendant confronted a team of officers as he tried to escape a failed robbery (82 NY2d at 312). When he refused to surrender and moved towards the officers, gun drawn, they opened fire and one officer was fatally shot in the head (id.). Remarking on the codefendant’s culpability for the officer’s death, the Court stated that “it [was] simply implausible for defendants to claim that defendants could not have foreseen a bullet going astray when [the defendant] provoked a gun battle outside a residential building in an urban area” (id. at 319). In People v Matos (83 NY2d 509, 511 [1994]), a police officer suffered fatal injuries after being trapped in a rooftop air shaft while chasing the defendant as he tried to escape capture from the scene of an attempted armed robbery. The Court held it was “foreseeable that someone might fall while in hot pursuit across urban roofs in the middle of the night” (id. at 512). Also, in a case ostensibly about superceding events, the Court concluded in People v Kibbe (35 NY2d 407, 413 [1974]) that defendants were liable for the victim’s death. As the Court detailed, the defendants had robbed the victim and threw him out of a car onto the shoulder of a rural highway, leaving him alone at night in near-zero degree weather with limited visibility conditions, without his glasses, and with his pants down, shoeless and his shirt rolled up around his chest (id. at 410-411). Shortly after abandoning him on the road, the victim was struck and killed by a truck (id.). The Court held the defendants were liable for these “directly foreseeable consequences of their actions” (id. at 413).

In these cases, viewing the facts in context, an obvious result of defendants’ criminal behavior was to place the victims at risk of death. In Hernandez, it was foreseeable that defendant’s act of confronting the officers with a loaded weapon would lead to a gunfight, and in no way surprising that someone might be killed in the cross fire. In Matos, it was foreseeable that the officer would die during a nighttime rooftop chase initiated by defendant’s attempted escape. Certainly, in Kibbe, the victim’s death was reasonably foreseeable when defendants abandoned him at night on a highway in a physically vulnerable state.

Here, however, it is not foreseeable that a 41 year old who appears overweight but was sufficiently able to engage his attacker would die as a result of the struggle where the injuries from the assault were a broken jaw and nose, lacerations and bruises. The autopsy report states that these injuries themselves are not the type that would cause or contribute to death. Accordingly, without the required foreseeability, defendant’s felony murder conviction should not stand.

For the reasons I have discussed, and because I agree that defendant’s other claims are without merit, I would affirm the Appellate Division order in its entirety.

Judges Pigott, Abdus-Salaam, Stein, Fahey and Garcia concur; Judge Rivera dissents in part in an opinion.

Order modified in accordance with the opinion herein, case remitted to the Appellate Division, Fourth Department, for consideration of the facts and, as so modified, affirmed.

      . The external door of the victim’s apartment building was unlocked. That door only allowed entry into a vestibule where a second, locked front door had to be accessed to gain entry into the building.

      . Surveillance footage shows defendant, clad in the white T-shirt, entering the vestibule of the building and unsuccessfully attempting to open the second, locked door, before using his cell phone to text Fatico and inform her that the door was locked, preventing his entry.

      . Notably, both the County Law and the New York City Charter provide medical examiners with the authority to conduct additional investigation or examination “to determine the means or manner of death” (County Law § 674 [3] [a]; see NY City Charter § 557 [f| [3]). To the extent such additional investigation was ever conducted by the Medical Examiner in this case, the facts derived therefrom would not supplant the admissible evidence at trial as to the facts and circumstances surrounding the victim’s death. The jury, of course, must find the reasonable foreseeability of the death on that trial evidence alone.

       The Court has previously addressed causation in the felony murder context of heart attacks in Anthony M. (63 NY2d at 281), but that case is not dispositive here. The Court in Anthony M. focused exclusively on whether the defendants’ actions were a contributing factor to the heart attack deaths such that the acts were a sufficiently direct cause of death (id.; see also Hernandez, 82 NY2d at 314). The Court did not address foreseeability. Regardless, Anthony M. and its companion case are distinguishable because they involved elderly victims, ages 83 and 89 respectively, who died of heart attacks after defendants’ assaults (id. at 276-277). The facts there are not comparable to a physical struggle wherein a 41-year-old victim suffers a broken jaw and nose, and dies of heart disease.


author: Garcia, J.

text:
    [66 NE3d 1070, 44 NYS3d 352]
    The People of the State of New York, Respondent, v Harvert Stephens, Also Known as Havert Stephens, Appellant.
    Argued October 14, 2016;
    decided November 21, 2016

      POINTS OF COUNSEL

      Hiscock Legal Aid Society, Syracuse (.Kristen McDermott of counsel), for appellant.

      William J. Fitzpatrick, District Attorney, Syracuse (James R Maxwell of counsel), for respondent.

      Robert P. Stamey, Corporation Counsel, Syracuse (John A. Sickinger of counsel), for City of Syracuse, amicus curiae.
   OPINION OF THE COURT

Garcia, J.

This case calls upon us to determine the constitutionality of Syracuse Noise Control Ordinance (Revised General Ordinances of City of Syracuse) § 40-16 (b) (Sound reproduction) (hereinafter Syracuse Noise Ordinance), which prohibits the creation of “unnecessary noise” emanating beyond 50 feet from a motor vehicle operated on a public highway. Specifically, we are asked whether this section is unconstitutional pursuant to our decision in People v New York Trap Rock Corp. (57 NY2d 371 [1982]). For the reasons stated below, we conclude that the statute does not “offend the constitutional void-for-vagueness doctrine of due process” (id. at 374).

Defendant was charged with criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree and with sound reproduction in violation of Syracuse City Ordinance § 40-16 (b). Defendant’s vehicle was stopped by police officers who believed his car stereo was operating at a volume that could be heard more than 50 feet away in violation of section 40-16 (b). During that stop, the arresting officers discovered defendant was in possession of crack cocaine, some of which was in plain view.

Syracuse Noise Ordinance § 40-4 sets forth the “[g]eneral prohibition” against “unnecessary noise,” stating: “No person shall make, continue or cause or permit to be made any unnecessary noise.” “Unnecessary noise” is defined in section 40-3 (u) as “any excessive or unusually loud sound or any sound which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of a reasonable person of normal sensibilities, or which causes injury to animal life or damage to property or business” (emphasis added). This subdivision includes 11 standards “to be considered in determining whether unnecessary noise exists in a given situation” (id. § 40-3 [u]). The Syracuse Noise Ordinance also contains 14 sections listing acts that constitute prima facie evidence of a violation of the ordinance (id. § 40-4). Here, the indictment specifically charged, and defendant was convicted of, one of these 14 enumerated acts:

“No person shall operate, play or permit the operation or playing of any radio, television, phonograph, drum, musical instrument, sound amplifier or similar device which produces, reproduces or amplifies sound: . . .
“(b) In such a manner as to create unnecessary noise at fifty (50) feet from such device, when operated in or on a motor vehicle on a public highway” (id. § 40-16 [b]).

Defendant moved to suppress the crack cocaine discovered during the traffic stop. At the suppression hearing, two police officers testified that the music could be heard from at least 100 feet away from defendant’s vehicle. At the conclusion of the hearing, defendant moved to dismiss the count charging a violation of section 40-16 (b), arguing that the Syracuse Noise Ordinance was unconstitutional under the void-for-vagueness doctrine. He further argued that suppression of the drugs seized as a result of the stop was required.

Supreme Court denied both the dismissal and suppression motions. Although the court determined the Syracuse Noise Ordinance was arguably unconstitutional, Supreme Court concluded “that the Appellate Division should make the determination as to whether or not the ordinance passes constitutional muster.” Supreme Court further determined “[t]here was sufficient proof of probable cause to believe the defendant violated Section 40-16(b) of the Syracuse Noise Ordinance, which prohibits dissemination of ‘unnecessary noise’ beyond 50 feet of an automobile, because there was testimony on this point that the court has found credible.”

At the subsequent bench trial, which was conducted on stipulated proof, defendant was convicted as charged.

On appeal, the Appellate Division unanimously affirmed, holding that the Syracuse Noise Ordinance was constitutional (128 AD3d 1497 [4th Dept 2015]). The Appellate Division rejected defendant’s argument that the ordinance was unconstitutionally vague, reasoning that while a similar local noise ordinance was held to be void for vagueness in Trap Rock, the Syracuse Noise Ordinance at issue “defines ‘unnecessary noise’ with reference to an objective standard of reasonableness rather than a subjective standard, and thus it is not unconstitutionally vague on that ground” (id. at 1498, quoting Syracuse Noise Ordinance § 40-3 [u]). The Court further found that section 40-16 (b) was not unconstitutionally vague because it was “tailored to a specific context—the creation of ‘unnecessary noise’ beyond 50 feet of a motor vehicle on a public highway” (id. at 1498-1499). A Judge of this Court granted leave to appeal (26 NY3d 1011 [2015]), and we now affirm.

Defendant has challenged the constitutionality of the Syracuse Noise Ordinance both on its face and as applied. However, when a “defendant makes an as-applied . . . challenge and the court repudiates it,” as we do here, “the facial validity of the statute is confirmed” because the court “necessarily concluded that there is at least one person—the defendant—to whom the statute may be applied constitutionally” (People v Stuart, 100 NY2d 412, 422-423 [2003]).

Municipal ordinances are afforded an “exceedingly strong presumption of constitutionality” (Lighthouse Shores v Town of Islip, 41 NY2d 7, 11 [1976]; see also Brady v State of New York, 80 NY2d 596, 602 [1992]) and should “be construed so as to avoid constitutional issues if such a construction is fairly possible” (FGL & L Prop. Corp. v City of Rye, 66 NY2d 111, 120 [1985]). We have further recognized that “noise regulation poses special problems of draftsmanship and enforcement,” as the “nature of sound makes resort to broadly stated definitions and prohibitions not only common but difficult to avoid” (Trap Rock, 57 NY2d at 379).

With these general principles in mind, we analyze this vagueness challenge using a two-part test (Stuart, 100 NY2d at 420; People v Nelson, 69 NY2d 302, 307 [1987]; People v Smith, 44 NY2d 613, 618 [1978]). First, we must determine “whether the statute in question is sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden” (Stuart, 100 NY2d at 420 [internal quotation marks omitted], citing Nelson, 69 NY2d at 307; see also Smith, 44 NY2d at 618, quoting United States v Harriss, 347 US 612, 617 [1954]). Second, we must determine “whether the enactment provides officials with clear standards for enforcement” so as to avoid “resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application” (Stuart, 100 NY2d at 420-421, quoting Grayned v City of Rockford, 408 US 104, 108-109 [1972]; Nelson, 69 NY2d at 307). Accordingly, a statute is “unconstitutionally vague under the Due Process Clauses of the Federal and State Constitutions [where] it fails to give fair notice to the ordinary citizen that the prohibited conduct is illegal, [and] it lacks minimal legislative guidelines, thereby permitting arbitrary enforcement” (People v Bright, 71 NY2d 376, 379 [1988]). On the other hand,

“[a] statute which employs terms having an accepted meaning long recognized in law and life cannot be said to be so vague and indefinite as to afford the defendant insufficient notice of what is prohibited or inadequate guidelines for adjudication, even though there may be an element of degree in the definition as to which estimates might differ” (People v Cruz, 48 NY2d 419, 428 [1979] [internal quotation marks and citations omitted]).

Contrary to defendant’s claim, the Syracuse Noise Ordinance challenged here does not suffer from the same constitutional infirmities as the Poughkeepsie Noise Ordinance (Unnecessary Noise Control Ordinance of Town of Poughkeepsie [adopted July 13, 1977]) challenged in Trap Rock. The Poughkeepsie Noise Ordinance contained a general provision prohibiting a person from making “any unnecessary noise,” defined as “any excessive or unusually loud sound or any sound which either annoys, disturbs, injures or endangers the comfort, repose, health, peace or safety of a person” (Trap Rock, 57 NY2d at 375 [emphasis added]). That statute listed 10 non-exclusive standards to be considered in determining whether “unnecessary noise” existed in a given situation (id. at 375-376). The Poughkeepsie Noise Ordinance then listed 17 acts which would violate the law if they created unnecessary noise; notably, however, violation of any one of those 17 subdivisions would also constitute a violation of the general provision against making “any unnecessary noise” (id. at 376). The defendant in Trap Rock was convicted of violating one of the specific subdivisions as well as the general provision based upon the same conduct.

In Trap Rock, we turned first to the specific subdivision defendant had been found to violate—the making of unnecessary noise within 300 feet of the boundary line of a residential district—and noted that it was unreasonably expanded by the phrase “[w]ithout limiting the above language” (id. at 380). In effect, the Trap Rock defendant was convicted of violating that specific provision even though the commercial loading activity at issue took place 2,400 feet from any residential boundary {id.). We found “still more egregious” the fact that the identical conduct also resulted in conviction under the blanket provision against making “any unnecessary noise”—a section “permeated with vagueness” {id.). We found that the subjective definition of “unnecessary noise” in that provision—“any excessive or unusually loud sound or any sound which . . . annoys ... a person”—could result in convictions based solely on the malice or animosity of a cantankerous neighbor {id.). The 10 specific standards that were articulated did not save the statute, as the standards were themselves vague and non-exclusive (id. at 381). As a result, we held that the pervasive nature of the statute’s catchall effect made the ordinance a ready candidate for ad hoc enforcement and that, accordingly, the Poughkeepsie Noise Ordinance was unconstitutional (id.).

The crucial difference here is that the Syracuse Noise Ordinance defines “unnecessary noise” based on an objective standard—specifically, “a reasonable person of normal sensibilities” (Syracuse Noise Ordinance § 40-3 [u]). As we concluded in People v Bakolas (59 NY2d 51 [1983]), decided less than a year after Trap Rock, the “term ‘unreasonable noise’ is not incapable of definition. Rather, it describes a noise of a type or volume that a reasonable person, under the circumstances, would not tolerate” (id. at 53). The Bakolas Court distinguished Trap Rock, finding that an objective standard prevents arbitrary and discriminatory “enforcement according to the ‘ “malice or animosity of a cantankerous neighbor” ’ or the ‘ “boiling point of a particular person” ’ ” (Bakolas, 59 NY2d at 54, quoting Trap Rock, 57 NY2d at 380).

Additionally, unlike the Poughkeepsie Noise Ordinance, Syracuse Noise Ordinance § 40-16 (b) is “tailored to a specific context”—limiting the prohibition to creating “unnecessary noise” by playing a radio or similar device that can be heard at least 50 feet away when being operated in a motor vehicle on a public highway. We recognized in Trap Rock that “antinoise cases” have upheld noise regulations that apply within limited contexts and convey “an accepted meaning” (Cruz, 48 NY2d at 428) to such otherwise imprecise words as “loud” or “excessive” (Trap Rock, 57 NY2d at 379, quoting People v Byron, 17 NY2d 64, 67 [1966]). For example, in People v Byron, we upheld a motor vehicle statute that mandated that “[e]very motor vehicle, operated or driven upon the highways of the state, shall at all times be equipped with an adequate muffler ... to prevent any excessive or unusual noise” (id. at 66). This Court concluded “[w]hat is usual noise in the operation of a car has become common knowledge and anything in excess of that is excessive or unusual and any ordinary motorist should have no difficulty in ascertaining whether or not excessive or unusual noise accompanied the operation of his vehicle” (id. at 67). We agree with the Appellate Division’s conclusion below that “ ‘[w]hat is usual noise in the operation of a car [radio or other sound production device] has become common knowledge . . . and any ordinary motorist should have no difficulty in ascertaining’ whether the noise in question violates the applicable standard” (128 AD3d at 1499, quoting Byron, 17 NY2d at 67).

Accordingly, Syracuse Noise Ordinance § 40-16 (b) is sufficiently definite to put a person on notice that playing music which can be heard over 50 feet from such person’s car on a public road, in a manner that would annoy or disturb “a reasonable person of normal sensibilities” is forbidden conduct and the objective standard affords police sufficiently “clear standards for enforcement” (Stuart, 100 NY2d at 420). Moreover, unlike the Poughkeepsie Noise Ordinance at issue in Trap Rock, section 40-16 does not contain any “without limiting the above language” clause that would make it possible to convict defendant of violating section 40-16 (b) for creating unnecessary noise that could be heard at distances less than 50 feet from his vehicle.

For the reasons set forth above, we hold that the Syracuse Noise Ordinance is constitutional. We have considered defendant’s remaining contentions on appeal and conclude they are without merit. Accordingly, the Appellate Division order should be affirmed.

Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Order affirmed.

       Our conclusion is in line with federal courts which have considered the Syracuse Noise Ordinance and other similar laws that incorporate an objective standard (see Marcavage v Syracuse Police Dept., 515 Fed Appx 14 [2d Cir 2013]; Howard Opera House Assoc. v Urban Outfitters, Inc., 322 F3d 125, 128 [2d Cir 2003]).