author: Ciparick, J. R.S. Smith, J.

text:
    [859 NE2d 508, 825 NYS2d 702]
    State of New York ex rel. Stephen J. Harkavy, on Behalf of John Doe Nos. 1 through 12, Appellant, v Eileen Consilvio, as Executive Director of Manhattan Psychiatric Center and Kirby Forensic Psychiatric Center, Respondent.
    Argued October 11, 2006;
    decided November 21, 2006

      POINTS OF COUNSEL

      Mental Hygiene Legal Service, First Judicial Department, New York City (Sadie Zea Ishee, Stephen J. Harkavy and Karen Gomes Andreasian of counsel), for appellant.
    I. The Appellate Division’s holding that petitioners could not seek habeas corpus relief using the mechanisms provided in CPLR article 70, and were entitled to relief only if they satisfied the additional requirements of Mental Hygiene Law § 33.15, unconstitutionally infringed upon petitioners’ right of access to the writ of habeas corpus. (People ex rel. Keitt v McMann, 18 NY2d 257; People ex rel. Tweed v Liscomb, 60 NY 559; People ex rel. Edwards v Superintendent of Bellevue Hosp., 235 NY 398; Matter of Parker v Bernstein, 125 Misc 92; People ex rel. Ledwith v Board of Trustees of Bellevue & Allied Hosps., 238 NY 403; Hoff v State of New York, 279 NY 490; People ex rel. Sabatino v Jennings,
      246 NY 258; People ex rel. Ciavarelli v Herold, 32 AD2d 692; People ex rel. Brown v Johnston, 9 NY2d 482; People ex rel. Brown v McNeill, 35 Misc 2d 53.) II. Because petitioners were under sentence of imprisonment at the time that they were evaluated for commitment as sexually violent predators, their transfer should have been effectuated in accordance with Correction Law § 402. (Kansas v Crane, 534 US 407; Matter of Guia G, 173 Misc 2d 111; Nicholas v Goord, 430 F3d 652; Matter of Patchogue-Medford Congress of Teachers v Board of Educ. of Patchogue-Medford Union Free School Dist., 70 NY2d 57; United States v Mendenhall, 446 US 544.) III. As a matter of procedural due process under the Federal Constitution, petitioners were entitled to procedural protections, including notice and an opportunity to be heard, before they were transferred from prison to a mental hospital. (Vitek v Jones, 445 US 480; Morrissey v Brewer, 408 US 471; Zinermon v Burch, 494 US 113; Project Release v Prevost, 722 F2d 960; Carty v Nelson, 426 F3d 1064; Matter of K.L., 1 NY3d 362; Mathews v Eldridge, 424 US 319; People v David W., 95 NY2d 130; Coleman v Dretke, 395 F3d 216; Chambers v Colorado Dept. of Corrections, 205 F3d 1237.) IV The Appellate Division erred in finding that a prison superintendent can be an applicant for an inmate’s admission to a psychiatric hospital under Mental Hygiene Law § 9.27.

      Eliot Spitzer, Attorney General, New York City (Caitlin J. Halligan, Daniel Smirlock and Benjamin N. Gutman of counsel), for respondent.
    I. Mental Hygiene Law § 9.27, not Correction Law § 402, applies to the patients here, because they were not serving prison sentences when they were committed. (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Heard v Cuomo, 80 NY2d 684; Ferres v City of New Rochelle, 68 NY2d 446; United States v Jones, 811 F2d 444.) II. Mental Hygiene Law § 9.27 is constitutional as applied to the patients, because due process does not demand precommitment hearings in these circumstances. (Project Release v Prevost, 722 F2d 960; Matter of K.L., 1 NY3d 362; Fhagen v Miller, 29 NY2d 348; Vitek v Jones, 445 US 480; United States v Jones, 811 F2d 444; Baugh v Woodard, 808 F2d 333; Jones v United States, 463 US 354.) III. A prison superintendent is an officer of a “public . . . institution or agency” who can apply for an inmate’s postincarceration civil commitment. IV Mental Hygiene Law § 33.15 applies to this habeas petition. (People ex rel. Ledwith v Board of Trustees of Bellevue & Allied Hosps., 238 NY 403; Matter of Ramon M., 294 AD2d 59; People ex rel. Thorpe v Von Holden, 63 NY2d 546; People ex rel. Sabatino v Jennings, 246 NY 258.)
   OPINION OF THE COURT

Ciparick, J.

The issue presented by this appeal is whether the procedure employed by the State in involuntarily committing certain sex offenders leaving the custody of the Department of Correctional Services (DOCS) was proper. In the absence of specific statutory authority governing the release of felony offenders from prison to a psychiatric hospital, we hold that the procedures set forth in Correction Law § 402, rather than Mental Hygiene Law article 9, better suit this situation.

Petitioners were in the custody of DOCS, and nearing the end of their prison sentences for various felony sex offenses, when they were examined by two Office of Mental Health (OMH) physicians for the purpose of involuntary commitment to an OMH facility. The OMH physicians certified that each petitioner suffered from a mental illness and that without inpatient psychiatric treatment, each posed a high risk of recommitting sexual crimes if released into the community. The prison superintendents completed applications for involuntary commitment on medical certification, pursuant to Mental Hygiene Law § 9.27. As petitioners’ prison terms expired, they were each transported under guard to the Manhattan Psychiatric Center (MPC), where each was further examined by a third OMH physician who also found involuntary commitment necessary.

Mental Hygiene Legal Service initiated this habeas corpus proceeding on behalf of petitioners seeking their immediate release. Petitioners argued that since they were undergoing a sentence of imprisonment, it was illegal for the State to transfer them into the mental health system pursuant to article 9 of the Mental Hygiene Law. They argued that the State was required to comply with the procedures set forth in Correction Law § 402, which governs the commitment of mentally ill prisoners to psychiatric hospitals, and that a prison superintendent is not authorized to file an application for involuntary commitment.

The State contended that petitioners were no longer undergoing a sentence of imprisonment since they were either being conditionally released, being released to parole supervision, or being released because their term of imprisonment was about to expire. The State also argued that the provisions of Mental Hygiene Law § 33.15 govern this habeas corpus proceeding and that the habeas court is therefore required to examine the alleged mental illness of each petitioner in addition to any alleged procedural irregularities.

Supreme Court granted the petition by ordering petitioners’ conditional release, finding that the State’s use of article 9 of the Mental Hygiene Law deprived petitioners of protections afforded to prisoners under the provisions of Correction Law § 402. Supreme Court opined that the State should have followed Correction Law § 402’s involuntary commitment procedures, because each petitioner was in fact imprisoned at the time of his involuntary commitment. Additionally, Supreme Court held that a prison superintendent is an authorized applicant under Mental Hygiene Law § 9.27 (b). Supreme Court also held that this proceeding was improperly brought under CPLR article 70, but granted a conditional release order unless a retention hearing was begun and concluded expeditiously.

The Appellate Division reversed, on the law, vacated the order for conditional release and dismissed the petition. The Appellate Division concluded that the State properly committed the petitioners under Mental Hygiene Law article 9, holding that since Correction Law § 402 “applies only to persons undergoing a sentence of imprisonment, it contemplates return to a DOCS facility” (29 AD3d 221, 225 [2006]), whereas these petitioners were not returning to DOCS custody but were instead soon to be released. Furthermore, the Appellate Division agreed with Supreme Court that petitioners should have brought this petition pursuant to the more specific habeas corpus provision in Mental Hygiene Law § 33.15, and that Supreme Court erred by “conditionally releasing petitioners without conducting its own review as to the state of each individual’s mental disability” (29 AD3d at 228) as required by Mental Hygiene Law § 33.15. We disagree with the Appellate Division’s conclusion that the article 9 procedure was proper and therefore reverse, remitting the matter to Supreme Court for further proceedings.

As a preliminary matter, we agree with the courts below that prison superintendents would have been proper persons to execute the applications for involuntary commitment. However, we disagree that proceeding under the Mental Hygiene Law was proper, since petitioners were still prison inmates and therefore subject to the provisions of the Correction Law at the time the applications were initiated.

The Mental Hygiene Law provides that “[u]nless otherwise specifically provided for by statute, a mentally ill person shall be admitted to a hospital as an in-patient only pursuant to the provisions of this article” (Mental Hygiene Law § 9.03). Mental Hygiene Law § 9.27 (a) authorizes the involuntary hospitalization of persons who are mentally ill, are in need of involuntary care and treatment and present a danger to themselves or society. This is effectuated by the certification of mental illness and need for involuntary care and treatment by two physicians (see Mental Hygiene Law § 9.27 [a]), followed by the submission by a statutorily designated person of an application for involuntary commitment on medical certification (see Mental Hygiene Law § 9.27 [b], [c]) and a confirmatory examination to be performed by a physician at the receiving psychiatric facility (see Mental Hygiene Law § 9.27 [e]). After commitment, the patient may request a hearing before a court on the issue of the need for hospitalization (see Mental Hygiene Law § 9.31). No such hearings were requested here.

Petitioners argue that at the time they were evaluated for involuntary commitment, and eventually committed, they were “undergoing a sentence of imprisonment,” requiring the State to follow Correction Law § 402, which governs the transfer of mentally ill prisoners to psychiatric hospitals. The commitment procedures of Correction Law § 402 differ from Mental Hygiene Law § 9.27 in that Correction Law § 402 requires that the prison superintendent must first apply to a court for the appointment of two examining physicians to conduct psychiatric examinations of the inmate (see Correction Law § 402 [1]), and if they certify that the inmate is mentally ill and in need of psychiatric care and treatment, then the superintendent must petition the court for a commitment order (see Correction Law § 402 [3]). Notice of the petition must be served upon the inmate, his or her closest friend or relative and the Mental Hygiene Legal Service (see id.). The inmate is then entitled to request a hearing before a judge before the transfer to a psychiatric hospital is undertaken (see Correction Law § 402 [5]). These procedural safeguards may be bypassed if the psychiatric admission sought is on an emergency basis (see Correction Law § 402 [9]).

Thus, in this case, the procedure employed pursuant to Mental Hygiene Law § 9.27 did not require that the psychiatric examinations underlying the patient’s admission be performed by court-appointed physicians, nor did it provide for pretransfer notice to the inmate and others, nor did it afford an opportunity for a pretransfer hearing.

We agree with Supreme Court’s assessment that “the plain truth of the matter is that each of the petitioners were, in fact, imprisoned at the time of their civil commitment” (10 Misc 3d 851, 855 [2005]). Two of the petitioners’ applications for commitment were submitted on the date of their release and the remaining 10 petitioners’ applications were submitted from one to four days prior to their release. The Appellate Division erroneously stated that “a few hours or days remaining in the sentence of these individuals as of the time of the application did not . . . render them ‘person[s] undergoing a sentence of imprisonment’ ” (29 AD3d at 226). Because all the prehminary paperwork and examinations were completed during the sentence, the Correction Law should have been followed.

By providing that Correction Law § 402 applies to inmates “undergoing a sentence of imprisonment,” the Legislature intended the procedures of Correction Law § 402 to be used to evaluate for commitment all imprisoned persons, regardless of when an inmate is scheduled to be released. Focusing only on whether a person remains imprisoned at the precise moment of commitment, rather than during the precommitment examination and application, renders the statute’s procedural protections ineffective since they can be easily avoided, as was done here, by waiting until the person is nearing a release date. The psychiatric evaluation process preceding involuntary commitment under Correction Law § 402 is intended to benefit and “protect the prisoner from administrative abuse of discretion” (Matter of Lindner, 96 Misc 2d 234, 237 [Sup Ct, Oneida County 1978]). Thus, the Correction Law’s statutory scheme is meant to protect an inmate throughout the evaluation process leading to involuntary commitment, absent an emergency as contemplated by Correction Law § 402 (9).

The State asserts that the Correction Law anticipates an inmate’s return to DOCS, and that since petitioners were not being returned to DOCS, they could not properly have been involuntarily committed pursuant to the Correction Law. However, the Mental Hygiene Law and the Correction Law, working in tandem, provide a mechanism for an inmate’s continued hospitalization beyond the expiration of sentence. An inmate committed to a psychiatric facility who is nearing the end of a term of imprisonment may, on application by the director of the hospital, be admitted to the care of the OMH pursuant to the Mental Hygiene Law (see Correction Law § 404). Thus, the Correction Law applies not only when DOCS anticipates the inmate’s return but also when it anticipates that an inmate’s sentence may expire while treatment is ongoing.

In the future, because inmates who are incarcerated do not pose an immediate threat to the community, there should be ample time to proceed under the Correction Law. Therefore, in the absence of a clear legislative directive in regard to inmates nearing their release from incarceration, we believe that Correction Law § 402 is the appropriate method for evaluating an inmate for postrelease involuntary commitment to a mental facility. Once the sentence expires, however, any further proceedings concerning the continued need for hospitalization are governed by the Mental Hygiene Law.

In conclusion, we understand how in an attempt to protect the community from violent sexual predators, the State proceeded under the Mental Hygiene Law. We do not propose that these petitioners be released, nor do we propose to trump the interests of public safety. Rather, we recognize that a need for continued hospitalization may well exist. We therefore order that those petitioners remaining in OMH custody be afforded an immediate retention hearing pursuant to article 9 of the Mental Hygiene Law — now controlling — since they are no longer serving a prison sentence (see Correction Law § 404 [1]). As to future candidates for immediate psychiatric hospitalization, prior to the expiration of a term of imprisonment, the State must proceed pursuant to Correction Law § 402, with all its attendant procedural requirements including court supervision, pretransfer notice and an opportunity to be heard within a reasonable period of time prior to the inmate’s proposed release date.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

R.S. Smith, J.

(concurring). I join the Court’s unanimous opinion, but add a brief explanation.

As the Court says, we have no “clear legislative directive” (majority op at 614). The situation of prison inmates whom the State seeks to confine upon the expiration of their terms is not specifically addressed by any statute, and neither Correction Law § 402 nor article 9 of the Mental Hygiene Law fits the situation perfectly. I think the Court is correct in choosing section 402, in part because that statute provides for a hearing before confinement. The Mental Hygiene Law does not, and if applied to this case it would raise serious constitutional problems.

We upheld the Mental Hygiene Law’s provisions for involuntary admission of certain mental patients against a constitutional challenge in Fhagen v Miller (29 NY2d 348 [1972]). In doing so, we rejected the argument that the statutes were invalid because they permitted the State to confine a person first, and give him a hearing afterward. We explained:

“Due process does, ordinarily, demand reasonable notice and an opportunity to be heard in advance of confinement or restraint. However, as we declared in Matter of Coates (9 N Y 2d 242, 249), ‘where immediate action is necessary for the protection of society and for the welfare of the allegedly mentally ill person, [it] does not require notice or hearing as a condition precedent to valid temporary confinement.’ ” (Id. at 353.)

It is hard to see how this reasoning can apply to a case like the present one. Petitioners had all been in prison for years before the State sought to commit them civilly. No sudden, unforeseen emergency required their confinement in a mental hospital. Since it cannot be said in this case that “immediate action [was] necessary for the protection of society,” a strong argument can be made that petitioners were constitutionally entitled to a hearing before being deprived of the liberty that they would otherwise have obtained upon the completion of their prison terms. Because Correction Law § 402 provides for such a predeprivation hearing, I agree with the Court in holding it to be the applicable statute.

Chief Judge Kaye and Judges Rosenblatt, Graffeo, Read, Smith and Pigott concur with Judge Ciparick; Judge Smith concurs in a separate opinion.

Order reversed, etc.

       “Examining physician” is defined in Correction Law § 400 (1) as “a physician licensed to practice medicine in the state of New York, but who is not on the staff of the facility where the inmate is confined.”


source: Caselaw Access Project

author: Pigott, J.

license: Public Domain

text:
    [859 NE2d 503, 825 NYS2d 697]
    Paul M. Morris, Appellant, v Schroder Capital Management International et al., Respondents.
    Argued October 10, 2006;
    decided November 21, 2006

      POINTS OF COUNSEL

      Frank H. Wright & Associates, EC., New York City (Frank H. Wright and Robert M. Sanchez of counsel), for appellant.
    I. The correct standard for involuntary termination in employee choice cases is “continued willingness to employ” in the same or a comparable job. (American Broadcasting Cos. v Wolf, 52 NY2d 394; BDO Seidman v Hirshberg, 93 NY2d 382; Wolff v Wolff, 67 NY2d 638; Matter of Long Is. Gastrointestinal Disease Group [Good — Dolgin], 251 AD2d 330; Columbia Ribbon & Carbon Mfg. Co. v A-1-A Corp., 42 NY2d 496; Last v New York Inst. of Tech., N.Y. Coll. of Osteopathic Medicine, 219 AD2d 620; Genesis II Hair Replacement Studio v Vallar, 251 AD2d 1082; Ken J. Pezrow Corp. v Seifert, 197 AD2d 856, 83 NY2d 798; Windshield Installation Network v Goudreau, 237 AD2d 694; Ticor Tit. Ins. Co. v Cohen, 173 F3d 63.) II. The constructive discharge test of objectively intolerable working conditions is not the correct test for involuntary termination under the employee choice doctrine. (International Bus. Machs. Corp. v Martson, 37 F Supp 2d 613; Halbrook v Reichhold Chems., Inc., 735 F Supp 121; Best v Peninsula N.Y. Hotel Mgt., 309 AD2d 524; Fischer v KPMG Peat Marwick, 195 AD2d 222; Granser v Box Tree S., 164 Misc 2d 191.)

      Pillsbury Winthrop Shaw Pittman LLP, Washington, D.C. and New York City (Christine N. Kearns, Julia E. Judish and E. Leo Milonas of counsel), for respondents.
    I. The New York employee choice doctrine is well-established. (Simons v Fried, 302 NY 323; Kristt v Whelan, 5 NY2d 807; Post v Merrill Lynch, Pierce, Fenner & Smith, 48 NY2d 84; Sarnoff v American Home Prods. Corp., 798 F2d 1075; Schlumberger Tech. Corp. v Blaker, 859 F2d 512.) II. New York has a strong public policy in favor of enforcing contracts. (Mohawk Maintenance Co. v Kessler, 52 NY2d 276; Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183; Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685.) III. The New York constructive discharge standard is applied both within and outside the employment discrimination context. (Matter of Imperial Diner v State Human Rights Appeal Bd., 52 NY2d 72; Whidbee v Garzarelli Food Specialties, Inc., 223 F3d 62; Baker v Board of Educ. of W. Irondequoit Cent. School Dist., 70 NY2d 314; Kader v Paper Software, Inc., 111 F3d 337; Sims v City of New London, 738 F Supp 638; International Bus. Machs. Corp. v Martson, 37 F Supp 2d 613.) IV New York’s employee choice doctrine does not require a test for involuntary termination short of the constructive discharge standard. (Horn v New York Times, 100 NY2d 85; International Bus. Machs. Corp. v Martson, 37 F Supp 2d 613; Post v Merrill Lynch, Pierce, Fenner & Smith, 48 NY2d 84; Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685; Mohawk Maintenance Co. v Kessler, 52 NY2d 276.) V Appellant’s proposed alternative standard conflicts with New York law and is unworkable. (Rudman v Cowles Communications, 30 NY2d 1; Horn v New York Times, 100 NY2d 85; Lobosco v New York Tel. Co./NYNEX, 96 NY2d 312; Murphy v American Home Prods. Corp., 58 NY2d 293.)
   OPINION OF THE COURT

Pigott, J.

Paul M. Morris commenced this action against his former employer in federal district court alleging breach of contract for failure to pay him certain deferred compensation benefits. The United States District Court for the Southern District of New York dismissed the complaint for failure to state a claim, finding that Morris forfeited his rights to the benefits under various deferred compensation plans which, among other things, included a covenant not to compete (2005 WL 167608, 2005 US Dist LEXIS 1017 [2005]). The District Court held that because Morris failed to state a claim of constructive discharge, the covenant not to compete was valid pursuant to the employee choice doctrine, which permits enforcement without regard to the covenant’s reasonableness.

Upon appeal, the United States Court of Appeals for the Second Circuit certified to this Court the question of whether the constructive discharge test is the appropriate legal standard to apply when determining whether an employee voluntarily or involuntarily left his employment for purposes of the employee choice doctrine. We conclude that it is.

I.

Morris was hired by defendant Schroder Capital Management International, an investment banking and asset management company, in January 1997. In his position as senior vice-president and head of domestic equities, he was responsible for investment management, as well as the management and expansion of SIMNA’s United States equity research operations. He was paid an annual salary, plus a year-end bonus. A portion of his year-end bonus was deemed a “deferred compensation award,” which would not vest until three years after the date of issue. Various deferred compensation plans governed these awards, but each plan had a forfeiture provision that provided that if, before the end of the three-year vesting period, Morris resigned and took employment with a company that SIMNA considered to be a competitor, all deferred compensation would be forfeited.

During his employment, Morris was awarded deferred compensation bonuses for the years 1997, 1998 and 1999 that would vest in 2001, 2002, and 2003 respectively. Prior to the payments, however, Morris resigned and established a hedge fund. SIMNA notified Morris that he had forfeited his deferred compensation benefits by engaging in a business that competes with SIMNA.

Morris then commenced the present action against SIMNA arguing that he did not leave his job voluntarily; rather SIMNA had forced his departure by significantly diminishing his job responsibilities. Specifically, he alleged that SIMNA had reduced the amount of assets over which he had control from approximately $7.5 billion to $1.5 billion. Therefore, he believed he was in a “dead-end job” with no alternative but to resign. SIMNA answered and thereafter moved to dismiss the action on the pleadings for failure to state a claim asserting, among other things, that Morris’s claims were barred by New York’s “employee choice” doctrine.

The District Court dismissed Morris’s claims on the pleadings pursuant to rule 12 (c) of the Federal Rules of Civil Procedure. Applying the “employee choice” doctrine, the court noted that the case turned on whether Morris voluntarily or involuntarily left his employment. In making this determination, the District Court borrowed the constructive discharge test from federal employment discrimination law. It held that Morris’s complaint could not “state a claim of constructive discharge, even taking all factual allegations as true,” because his “working conditions at the time of his resignation were not so intolerable that a reasonable person would have been forced to leave the job.” (2005 WL 167608, *4, 2005 US Dist LEXIS 1017, *11.) Thus, because Morris was not involuntarily discharged, SIMNA’s covenant not to compete was protected by the employee choice doctrine.

Morris appealed to the Second Circuit, which stated that the “narrow question” before the court was whether “involuntary termination” in the context of New York’s employee choice doctrine should be governed by the “constructive discharge” test from federal employment discrimination law (445 F3d 525, 529 [2006]). Specifically, the court certified the following questions:

“(1) Is the factual determination of ‘involuntary termination’ (i.e., whether an employee quit or was fired) under the New York common law employee choice doctrine governed by the ‘constructive discharge’ test from federal employment discrimination law?
“(2) If not, what test should courts apply?” (445 F3d 525, 532 [2006].)

This Court accepted certification (6 NY3d 880 [2006]).

Upon appeal, Morris contends that the constructive discharge test should not govern the result in this case. Rather, he argues that the correct standard is whether the employer is willing to employ the employee in the same or a comparable job. Defendants, on the other hand, argue that the correct standard, as applied by the District Court, is the federal constructive discharge test.

II.

At the outset, we note that noncompete clauses in employment contracts are not favored and will only be enforced to the extent reasonable and necessary to protect valid business interests (see BDO Seidman v Hirshberg, 93 NY2d 382 [1999]; Post v Merrill Lynch, Pierce, Fenner & Smith, 48 NY2d 84 [1979]). We have recognized an exception to the general disfavor of noncompete provisions, however, in the “employee choice” doctrine. This exception applies in cases where an employer conditions receipt of postemployment benefits upon compliance with a restrictive covenant (Post v Merrill Lynch, Pierce, Fenner & Smith, 48 NY2d 84 [1979]). The doctrine rests on the premise that if the employee is given the choice of preserving his rights under his contract by refraining from competition or risking forfeiture of such rights by exercising his right to compete, there is no unreasonable restraint upon an employee’s liberty to earn a living (see Kristt v Whelan, 4 AD2d 195, 199 [1st Dept 1957], affd without op 5 NY2d 807 [1958]; see also Post, 48 NY2d at 88-89). It assumes that an employee who leaves his employer makes an informed choice between forfeiting his benefit or retaining the benefit by avoiding competitive employment (Kristt, 4 AD2d at 199).

An essential element to the doctrine is the employer’s “continued willingness to employ” the employee (Post, 48 NY2d at 89). Where the employer terminates the employment relationship without cause, “his action necessarily destroys the mutuality of obligation on which the covenant rests as well as the employer’s ability to impose a forfeiture” (id.).

Thus, although a restrictive covenant will be enforceable without regard to reasonableness if an employee left his employer voluntarily, a court must determine whether forfeiture is “reasonable” if the employee was terminated involuntarily and without cause (see Post v Merrill Lynch, Pierce, Fenner & Smith, 48 NY2d 84, 89 [1979] [holding that a private pension plan provision permitting the employer to forfeit pension benefits earned by an employee who competes with an employer after being involuntarily discharged “is unreasonable as a matter of law and cannot stand”]).

In some circumstances, an employee’s decision to resign from his job may not be a free and voluntary choice. Federal courts created the constructive discharge test in the context of employment discrimination cases for determining whether the employee’s resignation was “voluntary.” Constructive discharge occurs “when the employer, rather than acting directly, deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation” (Pena v Brattleboro Retreat, 702 F2d 322, 325 [2d Cir 1983] [internal quotation marks omitted]). In order to meet this threshold, “the trier of fact must be satisfied that the . . . working conditions [were] so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign” (Pena, 702 F2d at 325 [internal quotation marks omitted]).

Under the constructive discharge test, the actions of the employer in creating the intolerable workplace condition must be deliberate and intentional (see Whidbee v Garzarelli Food Specialties, Inc., 223 F3d 62, 73 [2d Cir 2000]), and the atmosphere in the workplace must be so intolerable as to compel a reasonable person to leave (id.; but see e.g. Petrosino v Bell Atl., 385 F3d 210, 231 [2d Cir 2004] [finding no constructive discharge where an employee’s promotion opportunities were reduced, but the employee retained her job title, pay, and seniority]; Lumpkin v H.E.L.P. USA, 2005 WL 839669, *5, 2005 US Dist LEXIS 6227, *13-16 [ED NY 2005] [finding no constructive discharge where plaintiff retained the same salary and pay grade after his transfer to a lower position within the organization, even if the transfer was subjectively regarded as a demotion]). The constructive discharge test is not met if the employee is simply dissatisfied with a change in his job assignments (see Stetson v NYNEX Serv. Co., 995 F2d 355, 360 [2d Cir 1993]; Pena, 702 F2d at 325-326).

We conclude that the well-established constructive discharge test is appropriate in the context of the “employee choice” doctrine. The sense and purpose of the “employee choice” doctrine is that an employee is given a choice in either preserving his rights under an employment contract by not competing or losing them by engaging in competition. In cases where an employer intentionally makes the employee’s work environment so intolerable that it compels him to leave, that choice is essentially taken away from the employee. In those instances, an employer should not be permitted to enforce an unreasonable noncompete clause and simultaneously deny the employee his benefit under the guise of the employee choice doctrine (see Post, 48 NY2d 84 [1979]).

Accordingly, the first certified question should be answered in the affirmative and the second not answered as academic.

Judges Ciparick, Rosenblatt, Graffeo, Read and Smith concur; Chief Judge Kaye taking no part.

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and record submitted, certified question No. 1 answered in the affirmative and certified question No. 2 not answered as academic.

      . Defendant Schroder Capital Management International merged into defendant Schroder Investment Management North America Inc. in or about June 1999. As a result, both defendants will be referred to collectively as “SIMNA.”

      . The “employee choice” doctrine is applicable in cases involving economic relief, rather than injunctive relief.

      . We note that federal cases have similarly employed this constructive discharge test in cases outside of the title VII employment discrimination context (see e.g. Sure-Tan, Inc. v NLRB, 467 US 883, 894 [1984] [recognizing application of the constructive discharge test in the labor relations arena]; Lojek v Thomas, 716 F2d 675, 681 [9th Cir 1983] [applying the constructive discharge standard in an Employee Retirement Income Security Act case involving the forfeiture of pension benefits]).


author: Rosenblatt, J.

text:
    [859 NE2d 498, 825 NYS2d 692]
    Welsbach Electric Corp., Respondent, v MasTec North America, Inc., Appellant.
    Argued October 17, 2006;
    decided November 20, 2006

      POINTS OF COUNSEL

      Goldberg Segallo, LLP, Albany (Thomas M. Moll of counsel), for appellant.
    I. The Appellate Division misapplied New York’s well-settled choice of law test. (Hugh O’Kane Elec. Co., LLC v MasTec N. Am., Inc., 19 AD3d 126; Finucane v Interior Constr. Corp., 264 AD2d 618; Woodling v Garrett Corp., 813 F2d 543; Cooney v Osgood Mach., 81 NY2d 66; Dym v Gordon, 16 NY2d 120; Intercontinental Hotels Corp. [Puerto Rico] v Golden, 15 NY2d 9; Loucks v Standard Oil Co. of N.Y., 224 NY 99; Boss v American Express Fin. Advisors, Inc., 15 AD3d 306.) II. The subcontract’s payment provisions, which are enforceable under applicable Florida law, do not implicate a fundamental and deeply-rooted public policy of New York, even though Florida law may be at odds with this Court’s decision in West-Fair Elec. Contrs. v Aetna Cas. & Sur. Co. (87 NY2d 148 [1995]). (Grossman Steel & Aluminum Corp. v Samson Window Corp., 54 NY2d 653; Schuler-Haas Elec. Co. v Aetna Cas. & Sur. Co., 40 NY2d 883; Otis El. Co. v Fuller Co., 172 AD2d 732; Crown Plastering Corp. v Elite Assoc., 166 AD2d 495; Action Interiors v Component Assembly Sys., 144 AD2d 606; Matter of Niagara Wheatfield Adm’rs Assn. [Niagara Wheatfield Cent. School Dist.], 44 NY2d 68; Matter of Town of Greenburgh [Police Assn. of Town of Greenburgh], 94 AD2d 771; O’Mara v Dentinger, 271 App Div 22; Cooney v Osgood Mach., 81 NY2d 66; Finucane v Interior Constr. Corp., 264 AD2d 618.) III. The Appellate Division erroneously disregarded the parties’ express agreement to permit Florida law to govern their dispute. (Hugh O’Kane Elec. Co., LLC v MasTec N. Am., Inc., 19 AD3d 126; Finucane v Interior Constr. Corp., 264 AD2d 618; Woodling v Garrett Corp., 813 F2d 543; DCMR v Trident Precision Mfg., 317 F Supp 2d 220.)

      Murtagh, Cohen & Byrne, Rockville Centre {Edward T. Byrne and Paul J. Murdy of counsel), for respondent.
    I. Florida has no substantial or reasonable relationship to the contracts or construction work at issue in this case that would warrant application of its law. (Haag v Barnes, 9 NY2d 554; Andin Intl. v Matrix Funding Corp., 194 Misc 2d 719; Cap Gemini Ernst & Young, U.S., L.L.C. v Nackel, 346 F3d 360; Cargill, Inc. v Charles Kowsky Resources, Inc., 949 F2d 51; Hartford Fire Ins. Co. v Orient Overseas Containers Lines, 230 F3d 549; Subaru

      Distribs. Corp. v Subaru of Am., Inc., 425 F3d 119; Eastern Artificial Insemination Coop. v La Bare, 210 AD2d 609; Culbert v Rols Capital Co., 184 AD2d 612; S. Leo Harmonay, Inc. v Binks Mfg. Co., 597 F Supp 1014; LaGuardia Assoc. v Holiday Hospitality Franchising, Inc., 92 F Supp 2d 119.) II. The Second Department properly ruled that applying the subcontract’s Florida choice-of-law clause to uphold its “pay-when-paid” provisions would violate a fundamental public policy of New York. (People v Damiano, 87 NY2d 477; Straus & Co. v Canadian Pac. Ry. Co., 254 NY 407; Morales v County of Nassau, 94 NY2d 218; Schultz v Boy Scouts of Am., 65 NY2d 189; Matter of Board of Educ. of Greenburgh Cent. School Dist. No. 7 v Greenburgh Teachers Fedn., Local 1788 of Am. Fedn. of Teachers, AFL-CIO, 82 NY2d 771; Matter of Board of Trustees of Maplewood-Colonie Common School Dist. [Maplewood Teachers’ Assn.], 57 NY2d 1025; Kraut v Morgan & Brother Manhattan Stor. Co., 38 NY2d 445; Montgomery v Daniels, 38 NY2d 41; West-Fair Elec. Contrs. v Aetna Cas. & Sur. Co., 87 NY2d 148; David Fanarof, Inc. v Dember Constr. Corp., 195 AD2d 346.) III. The Construction Contracts Act of 2002 does not legislatively overrule West-Fair Elec. Contrs. v Aetna Cas. & Sur. Co. (87 NY2d 148 [1995]), but rather reinforces New York’s fundamental policy of enforcing subcontractors’ rights to be paid. (James T. Kelly, Jr., P.E., P.C. v Schroeter, 209 AD2d 737; Schuster v City of New York, 5 NY2d 75.) IV Even if MasTec North America, Inc. were to prevail, the specific “pay-when-paid” clauses of this subcontract would remain subject to attack as contrary to Florida law. (Johnson Enters, of Jacksonville, Inc. v FPL Group, Inc., 162 F3d 1290; Miami Coca-Cola Bottling Co. v Orange-Crush Co., 291 F 102; Blandford Land Clearing Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 260 AD2d 86.)

      Goetz Fitzpatrick, LLP, New York City {David E. Wolff, Denis B. Frind and David Kuehn of counsel), for American Subcontractors Association, Inc., amicus curiae.
    New York’s enunciated public policy denying enforceability to a pay-if-paid clause should prevail against a choice of law clause which undermines that policy. (West-Fair Elec. Contrs. v Aetna Cas. & Sur. Co., 87 NY2d 148; Cooney v Osgood Mach., 81 NY2d 66.)
   OPINION OF THE COURT

Rosenblatt, J.

For well over a century, parties to construction contracts in New York were permitted by decisional law and by statute to agree to “pay-if-paid” provisions. Agreements of that type create a condition precedent by which the subcontractor will not be paid unless the contractor has been paid. In 1995, however, we held in West-Fair Elec. Contrs. v Aetna Cas. & Sur. Co. (87 NY2d 148 [1995]) that such contracts violate New York’s public policy as expressed in Lien Law § 34. That section provides in pertinent part: “Notwithstanding the provisions of any other law, any contract, agreement or understanding whereby the right to file or enforce any lien created under article two is waived, shall be void as against public policy and wholly unenforceable. ’ ’

In the case before us, plaintiff subcontractor is a Delaware corporation and defendant general contractor is a Florida corporation. The parties agreed that Florida law would govern their contract. Unlike New York, Florida allows pay-if-paid contracts. We must determine whether New York’s public policy against such contracts is so fundamental that it should override the parties’ choice of law. We hold that it is not, and that the parties’ choice of law controls. As we said in Cooney v Osgood Mach. (81 NY2d 66, 79 [1993]), “plainly not every difference between foreign and New York law threatens our public policy. Indeed, if New York statutes or court opinions were routinely read to express fundamental policy, choice of law principles would be meaningless.”

I

On September 10, 1999, Telergy Metro LLC engaged defendant MasTec North America, Inc. to construct a fiber optic telecommunications network from Pleasant Valley to New York City. On November 28, 2000, MasTec subcontracted with plaintiff Welsbach Electric Corp. to do the electrical work for the project. The subcontract included a pay-if-paid clause stating that:

“Upon final acceptance of the Work by Contractor and Owner, Contractor will pay Subcontractor for the Work at the prices and schedule and in the manner described in Schedule 1; provided that, all payments to Subcontractor by Contractor are expressly contingent upon and subject to receipt of payment for the Work by Contractor from Owner . . . (Emphasis added.)

The parties also agreed that termination, suspension or delay of the primary contract between Telergy and MasTec automatically terminated, suspended or delayed the subcontract on both the same basis and effective date. In the event of termination, suspension or delay, Welsbach would be allowed to recover from the owner amounts payable to MasTec less any anticipated gross profit from the work.

In August 2001, Telergy became insolvent and terminated its contract with MasTec, effectively terminating the subcontract. MasTec, and in turn, Welsbach, were not fully paid for their work. Welsbach sued MasTec for the unpaid balance under the subcontract.

In its fifth and eleventh affirmative defenses MasTec asserted that: (1) Florida law, which enforces pay-if-paid provisions, governs the subcontract; MasTec never received payment from Telergy and therefore owes no money to Welsbach and (2) Welsbach can seek recovery only from Telergy, pursuant to the termination provision in the subcontract.

Welsbach moved for partial summary judgment and dismissal of those affirmative defenses, arguing that the subcontract’s pay-if-paid provision violates Lien Law § 34. MasTec cross-moved for leave to serve an amended answer with two counterclaims. Supreme Court struck the two affirmative defenses, otherwise denied Welsbach’s motion, and granted MasTec’s cross motion. The court held that although pay-if-paid clauses are enforceable in Florida, they violate Lien Law § 34 because the subcontractor is forced to assume the risk that the owner will fail to pay the general contractor. On an appeal to the Appellate Division from so much of Supreme Court’s order as struck the affirmative defenses, that Court, with one Justice dissenting, affirmed. We now reverse.

II

Both sides agree that the subcontract’s pay-if-paid clause violates New York’s public policy. Were we not dealing with choice of law, we would simply apply Lien Law § 34 as interpreted in West-Fair and the case would be closed. The issue before us, however, is whether our public policy is so unyielding that it trumps the parties’ agreement to apply the law of another state. Put differently, there are two conflicting policies at work here: one, that parties should be free to chart their own contractual course, the other, that there are certain contracts the State will not allow.

Generally, courts will enforce a choice-of-law clause so long as the chosen law bears a reasonable relationship to the parties or the transaction (Cooney, 81 NY2d at 70-71). A basic precept of contract interpretation is that agreements should be construed to effectuate the parties’ intent (see Greenfield v Philles Records, 98 NY2d 562, 569 [2002]; see R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29, 32 [2002]; W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). Where an agreement is clear and unambiguous, a court is not free to alter it and impose its personal notions of fairness (see Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475 [2004]; Greenfield, 98 NY2d at 570; Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001]).

The freedom to contract, however, has limits. Courts will not, for example, enforce agreements that are illegal or where the chosen law violates “some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal” (Cooney, 81 NY2d at 78, quoting Loucks v Standard Oil Co. of N.Y., 224 NY 99, 111 [1918]; see generally Restatement [Second] of Conflict of Laws § 187 [2]). “If . . . the foreign law does not entail any such violation . . . full effect should be given to the law of our sister State” (Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574, 584 [1980]). Crucially, however, we have reserved the public policy exception “for those foreign laws that are truly obnoxious” (Cooney, 81 NY2d at 79).

This appeal requires us to examine the policy considerations underlying Lien Law § 34 to determine whether it embodies a concept so fundamental to our law as to meet this test. We have characterized concepts as “fundamental” in other contexts. For example, in Scheiber v St. John’s Univ. (84 NY2d 120, 125 [1994]), we recognized that the “Human Rights Law . . . effects this State’s fundamental public policy against discrimination by establishing equality of opportunity as a civil right.” We said in Sanders v Winship (57 NY2d 391, 395 [1982]) that legislation outlawing discrimination in the sale of cooperative real estate interests is a “fundamental State policy.” Also, in Matter of Board of Higher Educ. of City of N.Y. v Carter (14 NY2d 138, 144 [1964]), we noted that interdiction of discrimination in civil rights based on race or creed is a “fundamental public policy of New York.” For reasons that follow, we agree with MasTec and the dissenting Justice that Lien Law § 34, which deals with risk allocation under a construction contract, is not of this tenor.

Ill

Mechanics’ liens did not exist at common law; they are creatures of statute (Birmingham Iron Foundry v Glen Cove Starch Mfg. Co., 78 NY 30, 32 [1879]; Derby, The New Mechanics’ Lien Law of the State of New York, Preface [1885]). The first mechanics’ lien law of New York was enacted in 1830 (L 1830, ch 330). Early New York treatises on mechanics’ liens recognized that the right to file a lien could be waived. In fact, New York courts, as well as those of our sister states, consistently enforced clear and unambiguous hen waivers. Indeed, in 1922 we held that “[n]o good reason can be suggested . . . why a contractor cannot, for a valuable consideration, waive the provisions of the statute giving him the right to file a notice of lien” (Cummings v Broadway-94th St. Realty Co., Inc., 233 NY 407, 411-412 [1922]; see also Embury v Conner, 3 NY 511, 519 [1850]; Buel v Trustees of Vil. of Lockport, 3 NY 197, 200 [1849]).

In 1929 the Legislature enacted Lien Law § 34. The statute codified decisional law allowing contractors, subcontractors, material suppliers and laborers to waive their right to file and enforce a lien by a signed, written agreement expressing such intent. For decades thereafter, courts upheld these waivers pursuant to Lien Law § 34.

It was not until 1975 that the Legislature repealed the 1929 statute and replaced it with the current version of Lien Law § 34. Even then, the courts perceived no connection between section 34’s waiver prohibition and pay-if-paid contracts. Courts continued to uphold pay-if-paid clauses where the parties clearly agreed that payment to the contractor was a condition precedent to the contractor’s obligation to pay the subcontractor. (See Schuler-Haas Elec. Corp. v Aetna Cas. & Sur. Co., 49 AD2d 60 [4th Dept 1975], affd 40 NY2d 883 [1976] [“(I)f the parties clearly expressed an intention that no subcontractor . . . should have a right to be paid or to sue on the payment bond until all questions relating to the contracts have been resolved and the owner has made his final payment due under the contract to the general contractor, such agreement would be binding, and it would constitute a condition precedent to plaintiff’s action against the surety” (emphasis added)].)

By the 1990’s there were growing doubts as to whether Lien Law § 34 could abide pay-if-paid contracts, as courts began to realize that such agreements arguably operated as forbidden waivers of the right to enforce a mechanics’ lien. As recently as 1995, the Second Circuit Court of Appeals certified to us the question whether Lien Law § 34 is violated when the parties agree that the subcontractor will not be paid if the contractor goes unpaid (see West-Fair Elec. Contrs. v Aetna Cas. & Sur. Co., 49 F3d 48 [2d Cir 1995]). The Second Circuit suggested that a condition precedent of that type “appears to run counter to New York public policy” (id. at 50), but was uncertain and asked us for a definitive ruling. In 1995 we rendered one, holding in West-Fair that pay-if-paid clauses are “void and unenforceable as contrary to public policy set forth in Lien Law § 34” (87 NY2d at 158).

Section 34 seeks to protect New York subcontractors from the oppressive use of bargaining power. Here, neither party is a New York corporation; notably, MasTec is a Florida corporation. As dissenting Justice Krausman pointed out, both are sophisticated commercial entities that knowingly and voluntarily entered into the subcontract. Considering these factors and given the checkered history of pay-if-paid clauses in the construction industry, we cannot say they are “truly obnoxious” so as to void the parties’ choice of law. In short, Welsbach has not sustained its “heavy burden” of proving that application of Florida law would be offensive to a fundamental public policy of this State (see Cooney, 81 NY2d at 80).

Accordingly, the order of the Appellate Division should be reversed, with costs, plaintiffs motion, insofar as it seeks to dismiss the fifth and eleventh affirmative defenses interposed in the answer, denied and the certified question answered in the negative.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith and Pigott concur.

Order reversed, etc.

      . For an expansive analysis of Cooney, see Aaron D. Twerski’s article, A Sheep in Wolf’s Clothing: Territorialism in the Guise of Interest Analysis in Cooney v. Osgood Machinery, Inc. (59 Brook L Rev 1351 [Winter 1994]).

      . Courts and lawyers refer also to “pay-w/iere-paid” clauses and sometimes use the phrases interchangeably. They are different. In Schuler-Haas Elec. Co. v Aetna Cas. & Sur. Co., the contract provided that payment was due from the contractor to the subcontractor when the owner paid the contractor. We found this not to be a condition precedent but a timing mechanism (40 NY2d 883, 885 [1976]). We need not discuss the different ramifications of the “when” versus “if” formulations, which have been the subject of extensive commentary (see Carney and Cizek, Payment Provisions in Construction Contracts and Construction Trust Fund Statutes: A Fifty-State Survey, 24 Constr Law 5 [Fall 2004]; Margie Alsbrook, Contracting Away an Honest Day’s Pay: An Examination of Conditional Payment Clauses in Construction Contracts, 58 Ark L Rev 353 [2005]). For purposes of this appeal, no one doubts that the contract contains a “pay-if-paid” clause in the form of a condition precedent.

      . Balbuena v IDR Realty LLC, 6 NY3d 338 (2006); Szerdahelyi v Harris, 67 NY2d 42 (1986); see generally 5 Williston, Contracts § 12:1, at 546-603 (4th ed).

      . See Blanc, New York Law of Mechanics’ Liens 1Í 10a, at 38-39 (1949); Griffin, A Treatise on the Law of Mechanics’ Liens of the State of New York § 13, at 70-73 (1929); Jensen, A Treatise on the Mechanics’ Lien Law of the State of New York § 217, at 263-265 (3d ed 1929); Ray, A Treatise on the Law of Mechanics’ Liens and General Contracting of the State of New York § 202, at 374-375 (1914); Kneeland, A Treatise upon the Principles Governing the Acquisition and Enforcement of Mechanic’s Liens § 134, at 149 (1876).

      . See Cummings v Broadway-94th St. Realty Co., Inc., 233 NY 407, 411-412 (1922); Phyfe v Eimer, 45 NY 102 (1871); Hedden Constr. Co. v Proctor & Gamble Co., 62 Misc 129 (Sup Ct, Richmond County 1908); Matthews v Young, 16 Misc 525 (Sup Ct, Special Term, Erie County 1896); Davis v La Crosse Hosp. Assn., 121 Wis 579, 583, 99 NW 351, 352 (1904); Scheid v Rapp, 121 Pa 593, 15 A 652 (1888); Long v Caffrey, 93 Pa 526 (1880); Bowen v Aubrey, 22 Cal 566 (1863).

      . See McCreary Co. v People, 267 NY 37 (1935); Mascioni u Miller, Inc., 261 NY 1 (1933); Atlantic Co. v Jarll Realty Corp., 36 AD2d 883, 884 (3d Dept 1971); J. P. Cieri Constr. Co. v Gramercy Constr. Corp., 13 AD2d 901, 902 (4th Dept 1961); Arrow Bldrs. Supply Corp. v Hartsdale Town House, 11 Misc 2d 746 (Sup Ct, Westchester County 1958), affd 7 AD2d 755 (1958); Arr-Em Plastering Corp. v 515 E. 85th St. Corp., 25 AD2d 59, 61 (1st Dept 1966); MacArthur Concrete Pile Corp. v Kew Queens Corp., 276 App Div 1015, 1016 (2d Dept 1950).

      . See also David Fanarof, Inc. v Dember Constr. Corp., 195 AD2d 346 (1st Dept 1993); Crown Plastering Corp. v Elite Assoc., 166 AD2d 495 (2d Dept 1990); Jespersen-Kay Modular Constr. Ltd. v Clinton Ave. Paul Place Houses, 85 Misc 2d 721 (Sup Ct, Monroe County 1976).

      . A recent article surveyed the treatment of pay-if-paid clauses across the nation (Carney and Cizek, Payment Provisions In Construction Contracts and Construction Trust Fund Statutes: A Fifty-State Survey, 24 Constr Law 5 [Fall 2004]). While some states have legislatively declared conditional payment provisions unenforceable or have restricted their application, California is the only other state that has voided pay-if-paid provisions as against public policy (see Wm. R. Clarke Corp. v Safeco Ins. Co., 15 Cal 4th 882, 938 P2d 372 [1997]). Moreover, it was not until 2002 that New York enacted section 757 of the General Business Law rendering void any provision that makes a construction contract subject to the laws of another state.


author: Graffeo, J.

text:
    [859 NE2d 902, 826 NYS2d 163]
    The People of the State of New York, Respondent, v Ubaldo Romero, Appellant.
    Argued October 18, 2006;
    decided November 21, 2006

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (William A. Loeb and Robert S. Dean of counsel), for appellant.
    The Appellate Division, in affirming appellant’s conviction on weight of the evidence review, erred in looking solely to whether there was any support in the record for the jury’s resolution against appellant of the conflicts in the witnesses’ testimony, pursuant to People v Gaimari (176 NY 84, 94 [1903]), rather than undertaking its own review of the conflicts in the testimony to determine whether appellant’s conviction was against the weight of the credible evidence. (People v Bleakley, 69 NY2d 490; People v Acosta, 80 NY2d 665; People v Cahill, 2 NY3d 14; Tibbs v Florida, 457 US 31; People v Vargas, 7 NY2d 555; People v Luscomb, 292 NY 390; People v Lytton, 257 NY 310; People v Sanducci, 195 NY 361; People v Becker, 210 NY 274; People v Crum, 272 NY 348.)

      Robert M. Morgenthau, District Attorney, New York City (Susan Gliner and Mark Dwyer of counsel), for respondent.
    I. The First Department applied the correct standard when if found that the jury’s verdict was not against the weight of the credible evidence. (People v Gaimari, 176 NY 84; People v Bleakley, 69 NY2d 490; People v Cahill, 2 NY3d 14; Tibbs v Florida, 457 US 31; People v Smith, 63 NY2d 41; People v Wood, 12 NY2d 69; People v Peller, 291 NY 438; People v Crum, 272 NY 348; People v Noble, 86 NY2d 814.) II. Robert Romero’s complaint about a single set of remarks made during the prosecutor’s summation is unpreserved and completely without merit. (People v Robinson, 36 NY2d 224; People v Everson, 100 NY2d 609; People v Johnson, 210 AD2d 174; People v Allende, 269 AD2d 211; People v Warrick, 261 AD2d 152; People v Galloway, 54 NY2d 396; People v Nai Hing Liang, 208 AD2d 401; People v D'Alessandro, 184 AD2d 114; People v Halm, 81 NY2d 819; People v Marks, 6 NY2d 67, 362 US 912.)
   OPINION OF THE COURT

Graffeo, J.

Citing People v Gaimari (176 NY 84 [1903]), the Appellate Division rejected defendant’s argument that the jury’s verdict was against the weight of the evidence. The issue for us to decide is whether the Appellate Division’s reliance on Gaimari indicates that the Court failed to apply the correct legal standard for reviewing this weight of the evidence claim. For the reasons that follow, we conclude that the Appellate Division did not err.

I.

On November 1, 1990, Rafael Baez, Etienne Adorno and Demetrio Flores drove to a location in northern Manhattan, ostensibly for the purpose of robbing a drug dealer. Upon arrival, Baez exited the car to make a telephone call. At about the same time, a group of men armed with guns emerged from a nearby apartment building, approached the vehicle and fired their weapons, killing both Adorno and Flores.

According to various accounts, defendant Ubaldo Romero, his three brothers (codefendants Robert, George and Julio Romero) and a 14-year-old boy (referred to as Wilson C.) committed the murders. The Romero brothers operated a narcotics trafficking enterprise and used street dealers in the area where Adorno, Baez and Flores had gone to commit the robbery. Alerted to the presence of the would-be robbers, the Romeros, accompanied by Wilson C., went to an apartment and gathered firearms. Some witnesses recounted that after the group exited the building, one of the Romeros managed to get close to the car and shot at the driver. Defendant and Wilson C. simultaneously fired their weapons toward the vehicle. The perpetrators then fled the scene.

A police investigation revealed that Adorno and Flores had been shot multiple times and that neither man fired back at their assailants. Although the police were initially unable to identify the shooters, over the course of a decade investigators uncovered evidence that led them to suspect the Romeros. In 1999, the Romeros and Wilson C. were jointly indicted for two counts of intentional murder in the second degree. Wilson C. pleaded guilty to manslaughter in the first degree and, because of his age at the time of crime, was sentenced as a juvenile offender. The Romeros opted for a jury trial, which resulted in a mistrial when the jury could not render a unanimous verdict. At the retrial, the defense challenged the credibility of the People’s witnesses based on inconsistencies in their factual recollections and because they had entered into cooperation agreements with the prosecution in return for favorable treatment regarding their own criminal activities. Ultimately, the jury acquitted George and Julio Romero but convicted Robert Romero and defendant of both homicide counts.

Among his arguments on appeal, defendant asserted that the jury’s verdict was against the weight of the evidence. The Appellate Division rejected that argument and affirmed, explaining:

“The jury properly considered issues of credibility, including the weight to be given to the backgrounds of the People’s witnesses, the benefits they received in return for testifying and the inconsistencies in their testimony, and there is no basis for disturbing the jury’s determinations (see People v Gaimari, 176 NY 84, 94 [1903]). Numerous witnesses inculpated defendant[ ], and the jury could have reasonably concluded that differences in their perception and memory of details of this fast-paced, chaotic event accounted for the inconsistencies” (22 AD3d 287, 287 [1st Dept 2005]).

A Judge of this Court granted leave.

II.

Defendant contends that the Appellate Division erred as a matter of law by citing exclusively to People v Gaimari (176 NY 84 [1903]) in rejecting his assertion that the jury’s verdict was against the weight of the evidence. According to defendant, the Gaimari analysis of the duty of an appellate court in determining whether the evidence supports a conviction conflicts with modern formulations of the parameters of weight of the evidence review, as articulated in People v Bleakley (69 NY2d 490 [1987]). In order to assess the validity of this claim, we find it helpful to examine the historical antecedents that preceded codification of the authority of appellate courts to engage in weight of the evidence review (see CPL 470.15 [5]; 470.20 [5]; 470.30 [1]).

At common law, appellate review of a criminal conviction, regardless of how grave the offense, was not viewed as a necessary component of elementary due process. The prevailing principle was that, “ ‘if a defendant be convicted of felony or treason, though against the weight of evidence, there is no instance of a motion for a new trial in such a case, but the judge passes sentence, and respites execution, till application can be made to the mercy of the crown’ ” for a pardon (People v Com- stock, 8 Wend 549, 549 [1832], quoting The King v Mawbey, 6 Term Rep 625; see People ex rel. Case v Judges of Dutchess Oyer & Terminer, 2 Barb 282, 293 [1847] [“(i)f a verdict is rendered against the accused without sufficient evidence, he can always apply for, and generally obtain, a pardon”]). It was therefore “wholly within the discretion of the State to allow or not to allow such a review” and, in the absence of a constitutional or statutory provision authorizing an appeal, a defendant had no recourse for raising claims of error (see McKane v Durston, 153 US 684, 687 [1894]).

The New York Legislature, however, provided for very limited review of criminal convictions in early statutory enactments (see 2 Rev Stat of NY, part iy ch II, tit III, § 42 et seq., at 717-719 [1st ed 1829]; People v Dalton, 15 Wend 581, 583 [1836], citing 1813 Rev L of NY, 36th Session, ch iy § VI [1 Van Ness and Woodworth rev at 326], derived from Statute of Westminster 2, 13 Edw 1, ch 31). “[T]he revised statutes only authorize[d] the defendant, on the trial of an indictment, to except to decisions of the court in the same cases, and in the manner provided by law in civil cases” (People v Haynes, 14 Wend 546, 554 [1835]). At that time, it was “well settled, in civil cases, that the . . . decision of the jury upon matters of fact, cannot be reviewed on a bill of exceptions, where there ha[d] been no erroneous decision of the court upon matters of law” (id.; see People v Dalton, 15 Wend at 584). Reflecting the deference afforded to credibility determinations by juries in civil cases, a criminal defendant could not attack a conviction on the ground that “the verdict of the jury was against evidence” since that was seen as a factual issue rather than a question of law (Vanderwerker v People, 5 Wend 530, 531 [1830]; see 1 Colby, Practical Treatise upon the Criminal Law and Practice of the State of New York, at 436 [1868]).

Some doubt was raised about the definitiveness of this principle as the courts began to recognize a need to allow for appellate intervention in order to correct manifestly unjust verdicts:

“There must be something in the case taking from the [trial] court its discretion [to deny a motion for a new trial] ... as in the case . . . where the testimony was clear and explicit, and uncontradicted, and yet a verdict against it, and a refusal to set aside such verdict. In such case there would be no discretion; every verdict must be supported by evidence; where it is not, the law gives to the party injured a legal right to have it set aside, and a new trial ordered. Should any court possessing the power refuse to exercise it in such a case, it would be our duty to correct the error by mandamus. In such a case, where there is no dispute about facts, there is no discretion to exercise” (People ex rel. Oelricks v Superior Ct. of City of N.Y., 10 Wend 285, 290-291 [1833]; see Ex parte Baily, 2 Cow 479, 483 [1824]).

Consistent with the judiciary’s concern about being unable to overturn clearly incorrect guilty verdicts, in 1855 the Legislature enacted a law, “conceived[ ] in a spirit of liberal and enlightened humanity” (O’Brien v People, 36 NY 276, 278 [1867]), that allowed appellate courts to entertain a challenge to the weight of the evidence supporting a verdict:

“Every conviction for a capital offence, or for one punishable as a minimum punishment by imprisonment in state prison for life, shall be brought before the supreme court and court of appeals . . . by a writ of error, with a stay of proceedings as a matter of right. And the said appellate court may order a new trial if it shall be satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below” (L 1855, ch 337, § 3; amended L 1858, ch 330, § 1).

In simple terms, this statute established two new appellate functions in reviewing convictions that carried sentences of death or life imprisonment: the power to examine the facts of a case and determine whether the verdict was manifestly unjust, against the law or not supported by the weight of the evidence; and the authority to review alleged errors that had not been objected to during the trial — the equivalent of today’s “interest of justice” jurisdiction {see CPL 470.15 [3] [c]; [6] [a]).

Pursuant to the new powers granted by the act of 1855, this Court determined that it had an

“imperative duty ... to examine carefully the whole record, and, if satisfied that the verdict is against the weight of evidence, or [not] authorized by law, or, if it shall be of opinion that justice requires a new trial, then the same shall be granted, whether or not any exception shall have been taken in the court below” (Ferris v People, 35 NY 125, 126 [1866]; see Sanchez v People, 22 NY 147, 155 [I860]).

But the precise scope of that review was not clear. In some cases, the Court began with the presumption that the jury’s verdict was factually correct and then reviewed the record to decide if that presumption was rebutted by the force of the evidence (see e.g. Levy v People, 80 NY 327, 337 [1880] [“It is not enough that the verdict may possibly be wrong, but that, after giving proper weight to all the evidence, it cannot be right”]). In other cases, the Court questioned whether appellate review required a “res nova” examination of the record (Ferris v People, 35 NY at 126) — that is, should the appellate court engage in a review as if the jury had never considered the case and it was being presented to the court as a matter of first impression (see Black’s Law Dictionary, at 1337 [8th ed])? The standard for appellate review thus remained unsettled (see Levy v People, 80 NY at 337).

In 1881, the consolidated Code of Criminal Procedure was enacted {see L 1881, ch 442). In its codification efforts, the Legislature abolished the common-law writs that had been used to challenge criminal convictions and instituted the modern-day appeal as the exclusive method for reviewing a judgment or order in a criminal action {see former Code Crim Pro § 515 [1881]). The Code permitted an appeal as of right in certain cases to an intermediate appellate court (at that time, Supreme Court), as well as to the Court of Appeals {see id. §§ 517-520). However, the drafters of the Code apparently neglected to incorporate the preexisting extraordinary powers of review from chapter 337, § 3 of the Laws of 1855 with respect to appeals from convictions punishable by death or life imprisonment.

This oversight was corrected in 1887, together with some modifications to the act of 1855 {see L 1887, ch 493). Notably, the intermediate appellate court’s authority to review weight of the evidence and exercise interest of justice jurisdiction was significantly expanded to encompass all criminal convictions {see former Code Crim Pro § 527 [1887]). In contrast, the jurisdiction of the Court of Appeals was restricted by limiting its factual review power and ability to examine errors in the interest of justice to only those cases that resulted in a sentence of death (see id. § 528) — and those defendants were provided with a direct appeal to the Court (see id. § 517).

Interpreting section 528 of the Code of Criminal Procedure, this Court observed that the powers conferred by the statute were “similar to those formerly given to this court in certain cases by chapter 337 of the Laws of 1855, as amended by chapter 330 of the Laws of 1858, and to the Supreme Court by section 527 of the Code of Criminal Procedure” (People v Driscoll, 107 NY 414, 417 [1887]). With regard to weight of the evidence review, the Court construed section 528 in a manner consistent with the approach that a verdict was presumed to be correct and would be overturned only if the record revealed that the jury’s factual determinations were incorrect: “[t]his provision . . . requires us to review the facts in every capital case, and to determine whether, upon all of the evidence, there is, in our opinion, good and sufficient reason for setting aside the verdict of the jury and granting a new trial” (id.). If the record did not provide a “sufficient reason for disturbing the[ ] verdict,” the conviction would not be reversed (id. at 421).

This remained the standard for conducting weight of the evidence review at the turn of the twentieth century (see e.g. People v Place, 157 NY 584, 596 [1899]; People v Kennedy, 159 NY 346, 354 [1899]; People v Filippelli, 173 NY 509, 514 [1903]), and when this Court decided People v Gaimari (176 NY 84 [1903])— the precedent cited by the Appellate Division in this case. After recounting the evidence adduced at Gaimari’s trial, the Court provided the following explanation for rejecting his challenge to the weight of the evidence supporting the jury’s verdict:

“[E]nough has been said to show that the question as to the defendant’s guilt, as to the grade of his offense if he was guilty, as to his claim that he acted in self-defense or that the homicide was the result of accident, were for the jury. They could look into the faces of the various witnesses as they gave their versions of the transaction and decide, so far as human judgment can tell, not only who intended to speak the truth, but who in fact spoke the truth. Representing the average judgment of mankind, they could separate the true from the false with a degree of accuracy which, according to the theory of our law founded on the experience of many generations, cannot be attained by reviewing judges. The memory, motive, mental capacity, accuracy of observation and statement, truthfulness and other tests of the reliability of witnesses can be passed upon with greater safety by those who see and hear than by those who simply read the printed narrative.
“Clearly the case was for the jury to decide and we cannot say that their verdict was against the weight of evidence or against law or that justice requires a new trial” (id. at 94).

The Gaimari decision represented one of the earliest discourses by this Court of the policy justifications for deferring to a jury’s determination of the facts when examining the weight of the evidence. Yet there was no discussion regarding the effect that this deference would have upon the Court’s ability to review the jury’s factual findings.

Although Gaimari did not expressly indicate that the Court was foreclosed from reviewing the jury’s resolution of conflicting evidence, other contemporaneous decisions could be read to suggest that this Court would not second-guess a verdict unless it was convinced that a conviction was manifestly unjust. For instance, in People v Silverman (181 NY 235, 240 [1905]), the Court explained that on previous occasions it had considered its powers under section 528 of the Code of Criminal Procedure and “uniformly [ ] held that it is not in the province of the court to review or determine controverted questions of fact arising upon conflicting evidence, but that the jury is the ultimate tribunal in such cases, and that with its decision this court cannot interfere unless it reaches the conclusion that justice has not been done” (see also People v Boggiano, 179 NY 267, 270 [1904]; People v Filippelli, 173 NY at 514; People v Kennedy, 159 NY at 354; People v Decker, 157 NY 186, 195 [1898]). In other situations, the Court attempted to strike a balance between the factual review mandated by section 528 of the Code of Criminal Procedure and Gaimari’s recognition of the vital role that jurors play in the criminal justice system (see e.g. People v Sanducci, 195 NY 361, 367 [1909] [noting that although the “credibility of witnesses is necessarily for the twelve jurors who looked into their faces and heard them testify rather than for the seven judges who simply read the printed record of what they said,” the Court had to “determin(e) whether the evidence fairly and reasonably supports their conclusion upon each of those questions”]).

This debate regarding the Court’s ability to reexamine a jury’s resolution of conflicting evidence was resolved in People v Becker (210 NY 274 [1914]). The Court endorsed the Gaimari principle and stressed that weight of the evidence review

“does not mean that we are to take the place of the jury in passing upon those ordinary questions of the reliability of witnesses and of the credibility of testimony which constantly arise in trials or that we are to overturn the verdict simply because as an original proposition we might have reached a different result” (id. at 288).

Despite this level of deference, the Court stated that the statute placed upon the courts the “absolute duty of deciding whether a verdict in a murder case is against the weight of evidence” (id. at 289), which required it to determine

“whether, taking into account the undisputed and clear infirmities of the People’s witnesses and case, we believe that there is still left such a preponderating weight and balance of apparently worthy testimony as justified the jury in finding that the affirmation of the defendant’s guilt was . . . unclouded by the shadow of any reasonable doubt” (id. at 288-289).

In the seminal case of People v Crum (272 NY 348 [1936]), the Court ultimately adopted the standard that a conviction would be upheld only if the Court affirmatively reviewed the record and determined that the evidence supported the jury’s resolution of competing factual inferences. The Court concluded that under section 528 of the Code of Criminal Procedure:

“We are obliged to weigh the evidence and form a conclusion as to the facts. It is not sufficient, as in most of the cases with us, to find evidence which presents a question of fact; it is necessary to go further before we can affirm a conviction and find that the evidence is of such weight and credibility as to convince us that the jury was justified in finding the defendant guilty beyond a reasonable doubt” (id. at 350).

Crum also emphasized that, consistent with Gaimari, “this court should not readily interfere with verdicts of jurors who have had the advantage of seeing and hearing witnesses” in conducting the weight of the evidence analysis (id. at 357). Thus, Crum struck a balance between the earlier, competing views for examining weight of the evidence: an appellate court had to affirmatively review the record and undertake an independent assessment of the evidence to determine whether the jury’s verdict was factually correct (similar to the “res nova” principle referred to in Ferris), but, at the same time, give due deference to the factfinder’s resolution of witness credibility and conflicting evidence.

For decades, this Court repeatedly referenced Crum as the proper standard to be utilized in addressing weight of the evidence challenges (see e.g. People v Higgins, 5 NY2d 607, 626 [1959]; People v Williams, 292 NY 297, 300 [1944]). With the adoption of the Criminal Procedure Law in 1970, the Legislature retained the statutory authority for the Appellate Division to review the weight of the evidence in all criminal cases (see e.g. CPL 470.20 [5]) and, consistent with the State Constitution (see NY Const, art VI, § 3), for this Court to do so in cases where a death sentence is imposed (see CPL 470.30 [1]). But this recodification did not alter the existing scope of weight of the evidence review, and Crum was cited approvingly by this Court in two capital appeals that followed enactment of the Criminal Procedure Law, People v Davis (43 NY2d 17, 36 [1977]) and People v Smith (63 NY2d 41, 52 [1984]).

Then, in 1987, this Court decided People v Bleakley (69 NY2d 490 [1987]), refining the standard for weight of the evidence review consistent with the core principles of Crum. We articulated a two-step approach that requires courts to first determine whether, “based on all the credible evidence [,] a different finding would not have been unreasonable” (id. at 495). If it would have been reasonable for the factfinder to reach a different conclusion, “then the appellate court must, like the trier of fact below, ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” (id., quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]). If this review of the record leads the court to conclude that “the trier of fact has failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict” (People v Bleakley, 69 NY2d at 495). We also stressed the same cautionary principle echoed in the Gaimari decision:

“Empowered with this unique factual review, intermediate appellate courts have been careful not to substitute themselves for the jury. Great deference is accorded to the fact-finder’s opportunity to view the witnesses, hear the testimony and observe demeanor. Without question the differences between what the jury does and what the appellate court does in weighing evidence are delicately nuanced, but differences there are” (id.).

This remains the standard of review applicable today (see e.g. People v Mateo, 2 NY3d 383, 410 [2004]).

III.

With this history in mind, we turn to defendant’s contention that the Appellate Division’s use of Gaimari, rather than Crum, Bleakley or one of our more recent decisions, demonstrates that the Court believed it was foreclosed from reviewing the jury’s assessment of the witnesses’ credibility and resolution of conflicting evidence, thereby employing an improper legal standard for conducting its weight of the evidence review. From a historical standpoint, we have always recognized that juries have a superior ability to “separate the true from the false with a degree of accuracy which, according to the theory of our law founded on the experience of many generations, cannot be attained by reviewing judges” (People v Gaimari, 176 NY at 94). Indeed, we have repeatedly recognized — in Becker, Crum, Bleakley and Mateo, among other decisions — that an appellate court must give “[g]reat deference” to the jury’s verdict (People v Bleakley, 69 NY2d at 495) precisely because “[t]he memory, motive, mental capacity, accuracy of observation and statement, truthfulness and other tests of the reliability of witnesses can be passed upon with greater safety by those who see and hear than by those who simply read the printed narrative” (People v Gaimari, 176 NY at 94). Thus, it cannot be said that the reference to Gaimari inherently indicates that an appellate court applied an outmoded standard of review.

Aside from this principle of deference, it is true that at the time Gaimari was decided there was precedent suggesting that the jury was “the ultimate tribunal” for resolving controverted questions of fact and that an appellate court should not interfere with a verdict “unless it reaches the conclusion that justice has not been done” (People v Silverman, 181 NY at 240; see e.g. People v Decker, 157 NY at 195). There was also conflicting case law as to whether section 528 of the Code of Criminal Procedure required reversal if the record revealed that the verdict was wrong, or whether the statute allowed a conviction to be affirmed only where a review of the evidence indicated that the jury’s decision was correct (compare People v Driscoll, 107 NY at 417, with People v Sanducci, 195 NY at 367). Gaimari, however, did not purport to apply a standard similar to Silver-man or Driscoll and the Court did not intimate that it was precluded from conducting an independent assessment of the record. In fact, the Gaimari decision reveals that the Court, after an extensive evaluation of the trial evidence, could “[ ]not say that [the jury’s] verdict was against the weight of evidence” (176 NY at 94). In our view, this is no different than stating that it does not “appear[ ] that the trier of fact has failed to give the evidence the weight it should be accorded” (People v Bleakley, 69 NY2d at 495).

The Appellate Division recognized here that conflicting evidence was adduced at trial but, similar to the Court in Gaimari, concluded that there was “no basis for disturbing the jury’s determinations” (22 AD3d at 287) — i.e., the record revealed that the verdict was supported by the facts — a statement that under Crum and Bleakley provided sufficient predicate to reject defendant’s challenge. The Court further explained that “[n]umerous witnesses inculpated defendant ], and the jury could have reasonably concluded that differences in their perception and memory of details of this fast-paced, chaotic event accounted for the inconsistencies” (id.). In light of those facts, the Court’s affirmance was consistent with the deference principle of Gaimari and Bleakley.

Moreover, the Appellate Division’s explanation was certainly adequate to justify the rejection of defendant’s argument. We indicated in Bleakley that the Appellate Division is not required to “manifest its weight of evidence review power by writing in all criminal cases” (69 NY2d at 496). The Court here could have summarily affirmed without explicitly addressing the merits of defendant’s challenge to the weight of the evidence. Had it done so, defendant would have had no recourse to this Court because it is only “where the order and writings of the intermediate appellate court manifest a lack of application of that review power” that we must reverse and remit for a proper assessment of the weight of the evidence (id.). Because we conclude that the Appellate Division’s review was not improper, we affirm.

We nevertheless recognize, as our analysis indicates, that the judiciary struggled to identify the parameters of weight of the evidence review at least until People v Becker (210 NY 274 [1914]), which disavowed the Silverman formulation that treated jury verdicts as virtually inviolable, and People v Crum (272 NY 348 [1936]), which manifested a definitive, lasting principle of law. This evolution suggests that to prevent confusion, exclusive reliance on cases from that early era should be avoided. Where the Appellate Division determines that an explanation of its legal reasoning is preferable, the better practice, after conducting weight of the evidence review, would be for the Court to reference more contemporary precedent, such as Bleakley or Mateo. By doing so, courts will make absolutely clear that a defendant has received the appellate scrutiny that the Criminal Procedure Law requires.

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

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Read, Smith and Pigott concur.

Order affirmed.

      . In the following decade those statutory protections for capital defendants were incorporated into the Judiciary Article of the State Constitution of 1894, where they remain to this day (see 1894 NY Const, art VI, § 9, renum as art VI, § 7 in 1925, repealed and reratified as art VI, § 3 in 1962). The Constitution of 1894 also created the Appellate Division of Supreme Court as the new intermediate appellate court, with jurisdiction that had previously been conferred on Supreme Court (see 1894 NY Const, art VI, § 2).

      . Despite these obvious distinctions, a court that undertakes this type of review has been analogized to a “ ‘thirteenth juror’ ” (Tibbs v Florida, 457 US 31, 42 [1982]). This is true in certain respects because courts, like juries, must resolve conflicting evidence and render a determination based on the elements as charged by the trial judge (see e.g. People v Noble, 86 NY2d 814, 815 [1995]; People v Cooper, 88 NY2d 1056, 1058 [1996]). However, there is a crucial distinction between the system described in Tibbs and the law in New York that makes our appellate courts function as, in effect, a second jury. Tibbs explained that if the hypothetical thirteenth juror disagrees with the other 12 jurors, the result would be a deadlocked jury, which would require a mistrial and allow the defendant to be reprosecuted, “not ... an acquittal barring retried under the Double Jeopardy Clause” (Tibbs v Florida, 457 US at 42). In contrast, our Legislature has erected a statutory bar preventing a defendant from being retried after a conviction is reversed based on the weight of the evidence (see CPL 470.20 [5]; Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 470.15, at 530; id., CPL 470.20, at 670-671). Thus, when the thirteenth juror reaches a different conclusion than that of the jury, the effective result in New York is an acquittal rather than a mistrial.


author: Chief Judge Kaye. R.S. Smith, J.

text:
    [860 NE2d 51, 826 NYS2d 589]
    The People of the State of New York, Respondent, v Sterling A. Cagle, Appellant.
    Argued October 19, 2006;
    decided November 20, 2006

      POINTS OF COUNSEL

      Frank J. Nebush, Jr., Public Defender, Utica (Robert R. Reittinger of counsel), for appellant.
    Defendant was out of prison on work release for a period of time in regard to his sentence for his first felony conviction, and therefore that period of time should not be counted as part of the 10-year time period to enhance his present conviction to a second felony offender offense. (People v Varrecchia, 141 Misc 2d 1; People v Tatta, 196 AD2d 328; People v Cruz, 48 NY2d 419; People v Shafer, 30 AD2d 213; People v Orr, 57 AD2d 578; People ex rel. Kornaker v Meloni, 134 Misc 2d 444; People v Melendez, 7 Misc 3d 1004; People v Parker, 186 AD2d 593; People v Ogarra, 1 Misc 3d 901.)

      Michael A. Arcuri, District Attorney, Utica (Steven G. Cox of counsel), for respondent.
    Defendant assigned to “work release” status by the Department of Correctional Services is nevertheless “incarcerated” for purposes of determining his status as a second felony offender. (People v Orr, 57 AD2d 578; People v O’Garra, 1 Misc 3d 901[A], 2003 NY Slip Op 51457[U], 16 AD3d 251, 5 NY3d 766; Matter of Hall v Zenzen, 20 AD3d 840; McNamara v Coughlin, 228 AD2d 356; People v Tatta, 196 AD2d 328; People v Varrecchia, 141 Misc 2d 1.)
   OPINION OF THE COURT

Chief Judge Kaye.

A second felony offender subject to enhanced punishment is one whose sentence for a prior felony has been imposed not more than 10 years before the commission of the felony for which that person presently stands convicted; excluded from the 10 years are any periods during which the individual has been incarcerated (Penal Law § 70.06 [1] [b] [v]). This appeal asks whether defendant was “incarcerated” while serving a portion of his prior sentence of imprisonment in a day-reporting program. We answer that he was.

Defendant was charged with three counts of criminal possession of a controlled substance in the third degree and one count of criminal use of drug paraphernalia in the second degree, all taking place on November 8, 2002. He agreed to plead guilty to two counts of criminal possession of a controlled substance in the third degree, in full satisfaction of the indictment. As part of his plea bargain, defendant further agreed to be sentenced as a second felony offender based upon a prior felony conviction for first-degree robbery occurring on March 25, 1991. For that crime he served a sentence of imprisonment from April 16, 1991 to February 23, 1993, his date of parole.

At sentencing for his current conviction, however, defendant argued that he could not be sentenced as a second felony offender because more than 10 years had elapsed between imposition of the sentence on his prior felony and commission of the current felonies. Defendant produced documentary evidence from the Department of Correctional Services (DOCS) demonstrating that, as of September 28, 1992, his earlier sentence had been converted to day-report status. Defendant argued that, as of September 28, 1992, he was no longer incarcerated, and because his current felonies were not committed until November 8, 2002 — more than 10 years later — he was not in fact a second felony offender under Penal Law § 70.06 (1) (b).

The People contended that the 10-year period should be tolled for the entire time defendant spent serving the sentence of imprisonment on his robbery conviction — including while in the day-reporting program — and thus his current felonies were committed within the statutory period. County Court rejected defendant’s argument and sentenced him as a second felony offender to concurrent sentences of imprisonment of 4Va to 9 years. A divided Appellate Division affirmed, as do we.

Penal Law § 70.06 (1) (b) provides:

“For the purpose of determining whether a prior conviction is a predicate felony conviction the following criteria shall apply . . .
“(iv) Except as provided in subparagraph (v) of this paragraph, sentence [for the prior felony] must have been imposed not more than ten years before commission of the felony of which the defendant presently stands convicted;
“(v) In calculating the ten year period under subparagraph (iv), any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration . . .

Defendant contends that his time spent in a day-reporting program cannot act to extend the 10-year period because he was not “incarcerated.” Under the statute, read literally or contextually, defendant is wrong. Indeed, from September 28, 1992 until February 23,1993 — including the five months he was in the day-reporting program — defendant was confined (and in that sense “incarcerated”), serving out his sentence of imprisonment under the custody and control of DOCS.

An inmate in a day-reporting program, under the applicable statutes and regulations, enjoys “extended bounds of confinement” (see Correction Law § 851 [10]; § 855 [5], [7]; 7 NYCRR 1926.2 [a] [4]). An approved inmate who has successfully participated in a work release program, completed furloughs to an approved residence and is either within six months of becoming eligible for parole or has one year or less to be served under his sentence, may be assigned from a work release facility to a residential treatment facility to participate in a program of continued employment (see 7 NYCRR 1925.2). While residing at an approved residence, the inmate is required to report to the facility or other designated reporting location, to undergo frequent drug tests and, where appropriate, to participate in other rehabilitative programs.

Moreover, before acceptance into a day-reporting program, an inmate must sign both a memorandum of agreement and copy of the day-reporting rules (7 NYCRR 1926.1). These documents specify that participation in the program “is a privilege which may be revoked at any time” and that the inmate “remain[s] in the custody of [DOCS]” (7 NYCRR 1926.2 [c]; 1926.3). The program imposes reporting duties and travel restrictions, including prior approval requirements for any method of transportation the inmate uses, for obtaining a driver’s license and for having a motor vehicle (7 NYCRR 1926.3). Permission is also required before participants take any medication (except in exigent circumstances), obtain a credit card or enter into a contract, and they must surrender the full amount of their employment earnings to the day-reporting center for documentation and proper deductions. Thus, inmates in day-reporting programs are merely granted the revocable privilege of serving their sentences of imprisonment under less strict conditions of supervision than other prisoners under lock and key.

Focus on the plain purpose of Penal Law § 70.06 also leads us to reject defendant’s argument. The statute is intended “to deter recidivism by enhancing the punishments of those who, having been convicted of felonies, violate the norms of civil society and commit felonies again” (People v Walker, 81 NY2d 661, 665 [1993]). To avoid enhanced punishment, prior felons must demonstrate their ability to live within the norms of civil society for 10 years. Plainly, time spent serving a sentence of imprisonment does not satisfy this requirement. That the Legislature has spoken in terms of time “incarcerated” does not compel us to limit the term to “behind bars” (cf. People v Love, 71 NY2d 711 [1988] [periods of wrongful incarceration are not included in the statutory toll]). Rather, we conclude that defendant should be considered incarcerated until he completed his sentence of imprisonment for the prior crime and was released into parole. Indeed, the sparse legislative history supports this sensible construction: “The alleged second felony offense must occur within 10 years after the defendant was released from a prison term on the first felony” (Governor’s Mem approving L 1973, ch 277, 1973 NY Legis Ann, at 4).

Here, defendant remained incarcerated until he was paroled on February 23, 1993. Because he committed his current drug felonies on November 8, 2002 — less than 10 years later — he was properly sentenced as a second felony offender.

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

R.S. Smith, J.

(dissenting). “Incarcerated” is not an ambiguous word. It means locked up in prison. Defendant in this case was not incarcerated during the time in question. He not only worked outside the prison walls, but ate and slept in an “approved residence” — which can mean, and in this case apparently did mean, the home of his family (see 7 NYCRR 1925.2, 1927.4, 1901.1 [c] [2] [i] [a]). The facts relied on by the majority — that defendant was required to report to a certain location daily, to undergo frequent drug tests, perhaps to participate in rehabilitative programs, and to sign a document to the effect that his nonincarcerated status “may be revoked at any time” (majority op at 650) — do not alter the simple fact that he was not incarcerated.

Relying on the phrase “extended bounds of confinement” — a phrase used in the Correction Law in a different context (see Correction Law § 851 [10]) — the majority essentially turns the word “incarcerated” into a metaphor. Because defendant was not free to go anywhere he liked, the majority reasons, he was in a sense “confined,” and “in that sense ‘incarcerated’ ” (majority op at 650). But there is no reason to think that the Legislature was speaking metaphorically when, in Penal Law § 70.06 (1) (b) (v), it excluded “any period of time during which the person was incarcerated” from the 10-year period prescribed in the statute governing second felony offenders (Penal Law § 70.06 [1] [b] [iv]).

The point of the exclusion is obvious: People who are incarcerated have little opportunity to commit felonies, and so do not get credit for the time in which they did not do so. The opportunities for criminal conduct by a person no longer incarcerated — even if he is required to report daily to a specified location — are incomparably greater. Defendant’s situation during his time in the day reporting program was not greatly different from that of someone on probation or parole — who, it is undisputed, is not “incarcerated” within the meaning of this statute. The line the majority draws is thus less satisfactory than the one the Legislature drew — between people who are in prison and who are not.

Judges Ciparick, Rosenblatt, Graffeo and Read concur with Chief Judge Kaye; Judge Smith dissents in a separate opinion; Judge Pigott taking no part.

Order affirmed.

      . Though not determinative, we note that nothing in the record suggests that defendant resided outside of a state correctional facility for any period of time while participating in the day-reporting program.

      . These factors, among others, distinguish day-reporting programs from parole. In addition, unlike parole, the privilege of participation in a day-reporting program may be revoked without a hearing or other process (see Correction Law § 855 [6], [9]; 7 NYCRR 1904.1, 1927.5).