author: Cipabick, J. Read, J. (dissenting).

text:
    [961 NE2d 645, 938 NYS2d 254]
    The People of the State of New York, Appellant, v Jay Jomar Bradshaw, Respondent.
    Argued November 16, 2011;
    decided December 13, 2011

      POINTS OF COUNSEL

      Charles J. Hynes, District Attorney, Brooklyn (Maria Park and Leonard Joblove of counsel), for appellant.
    I. Defendant’s waiver of his right to appeal was valid. (People v Seaberg, 74 NY2d 1; People v Hidalgo, 91 NY2d 733; People v Moissett, 76 NY2d 909; People v Lopez, 6 NY3d 248; People v Prescott, 66 NY2d 216, 475 US 1150; People v Kemp, 94 NY2d 831; People v Williams, 36 NY2d 829, 423 US 873; People v Johnson, 14 NY3d 483; People v Ramos, 7 NY3d 737; People v Callahan, 80 NY2d 273.) II. The court was not required to assign a new attorney to defendant in connection with his motion to withdraw the guilty plea, (Strickland v Washington, 466 US 668; People v Caban, 5 NY3d 143; People v Friedman, 39 NY2d 463.)

      Appellate Advocates, New York City (Erica Horwitz and Lynn W.L. Fahey of counsel), for respondent.
    I. The Appellate Division correctly held, based on this Court’s settled law, that Mr. Jay Bradshaw’s waiver of the right to appeal was not knowing, intelligent and voluntary. (People v Lopez, 6 NY3d 248; People v Seaberg, 74 NY2d 1; Johnson v Zerbst, 304 US 458; Barker v Wingo, 407 US 514; People v Harris, 61 NY2d 9; People v

      Thomas, 53 NY2d 338; Carnley v Cochran, 369 US 506; People v Muniz, 91 NY2d 570; People v Williams, 36 NY2d 829; People v Callahan, 80 NY2d 273.) II. This Court lacks jurisdiction to review the ineffectiveness of counsel claim never determined by the Appellate Division.
   OPINION OF THE COURT

Cipabick, J.

In People v Lopez (6 NY3d 248 [2006]), we emphasized, once again, that “[a] waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” (6 NY3d at 256). Applying this standard here, we hold that the record fails to establish that defendant validly waived his right to appeal.

I.

A Kings County grand jury indicted defendant for rape in the first degree and other related charges for an incident that allegedly occurred in the early morning hours of May 11, 2004 near an apartment complex in Brooklyn. In late June 2004, Supreme Court arraigned defendant on the charges and ordered that he submit to an examination pursuant to article 730 of the Criminal Procedure Law to determine whether he was an “incapacitated person.”

Both a psychiatrist and a psychologist separately evaluated defendant in early August 2004 and they each concluded that defendant was unfit to proceed with his case. The psychiatrist specifically noted that defendant “exhibited] signs of regression” and was “clearly incapable presently of assistance in his defense and stands in need of further inpatient psychiatric care.” The psychiatrist also commented that despite the seriousness of the charges lodged against defendant, he appeared, at times “quite nonplussed by his predicament.” Similarly, the psychologist observed that although she believed that defendant understood more than he acknowledged, defendant could articulate “only a sketchy and inaccurate understanding of the legal process.”

On September 9, 2004, Supreme Court signed an order, on motion of defense counsel, adjudicating defendant an incapacitated person and committing him to the custody of the Commissioner of Mental Health. Following his commitment at the Mid-Hudson Forensic Psychiatric Center (Mid-Hudson), defendant was diagnosed with “Adjustment Disorder with Anxiety and depressed mood.” Over the next several months, he received extensive treatment, which included medication, individual sessions with his psychiatrists and group therapy. In a report dated March 3, 2005, defendant’s psychiatrists determined that he was now competent to return to court, finding improvement in defendant’s cognitive function.

Defendant’s ability to proceed with his case, however, proved short-lived. In August 2005, at Supreme Court’s directive, defendant submitted to a second article 730 examination and was again found unfit to proceed. The same psychiatrist who assessed defendant during the initial article 730 examination opined that “defendant is again, or still, regressed” and seemed “inaccessible” to basic reason. He further remarked that defendant’s responses were “of childish quality.” Accordingly, in September 2005, Supreme Court signed a second order adjudicating defendant an incapacitated person.

While defendant’s treating psychiatrists at Mid-Hudson found him fit to proceed within a month of Supreme Court’s commitment order, defendant’s case did not move forward in a customary fashion. From December 2005 through February 2006, defendant, who was in custody, missed five scheduled court appearances. Defense counsel explained that defendant had been adjudicated an incapacitated person on a felony matter pending in Queens County and had been committed to the same facility where defendant had been treated in connection with this case.

Defendant finally returned to court in April 2006. Although his case had been adjourned for possible disposition over the course of that month and into May, Supreme Court ordered a third article 730 examination of defendant on May 30, 2006. A different psychiatrist and psychologist examined defendant and while they determined he was fit to proceed, the psychologist stressed that defendant was “in need of a good deal of support by defense counsel, in order to explain the complexity of this case and how it relates to outcomes or plea offers in the other two cases.”

From August to November 2006, defendant appeared in court on four occasions. Throughout this period, the parties advised Supreme Court that the trial courts in the Bronx and in Queens had decided to hold hearings in order to determine defendant’s fitness to proceed with his cases pending in those counties. When defendant returned to court on December 11, 2006 on the instant matter, the hearings in Bronx and Queens Counties had not been completed. In any event, Supreme Court ordered defendant to submit to a fourth article 730 examination on that day.

Following defendant’s February 2007 examination, he was found fit to proceed. The psychologist who evaluated defendant at this time did comment, however, that while defendant was “able to discuss [his cases] and consider his options . . . effective and consistent psychiatric treatment is paramount in maintaining [his] stability and competence.” On February 26, 2007, defendant initially contested the results of this examination and requested a hearing on the matter. Approximately three weeks later, defendant withdrew his request for a hearing and Supreme Court confirmed the results.

In the 12 months that ensued, the parties conducted plea negotiations and apprised the court on the status of defendant’s other open cases. Finally, on February 5, 2008, Supreme Court presided over a suppression hearing to determine the admissibility of certain identification testimony. After the hearing, the court denied defendant’s suppression motion, concluding that the People could introduce complainant’s identification of defendant in a lineup at trial.

The next day, defendant pleaded guilty to first-degree rape in exchange for a promised determinate sentence of nine years imprisonment followed by five years postrelease supervision. The record reveals that Supreme Court only made fleeting references to defendant’s appeal waiver. At the outset of the proceeding, the court enumerated the conditions of the guilty plea, including defendant’s waiver of his right to appeal. The court briefly outlined that an appeal waiver “means, the conviction here is final, that there is not a higher court you can take [the case] to.” When Supreme Court inquired whether defendant understood, defendant only asked the court to clarify its explanation of the mandatory fees associated with his guilty plea. Supreme Court neither confirmed whether defendant comprehended its terse explanation of the nature of the appeal waiver nor did it mention that defendant possessed an inherent right to appeal a judgment of conviction and sentence.

After Supreme Court ascertained that defendant spoke English, it addressed defendant’s previous confinement for “mental illness” and questioned whether defendant felt “well today, psychologically.” Defendant responded, “Yes.” The court also received assurance from defendant that he had not ingested any alcohol or controlled substances impairing his ability to understand these proceedings. The court further explained the rights associated with a jury trial and that defendant’s decision to plead guilty would extinguish this right. Defendant acknowledged that he understood this right that he was forgoing.

Next, the court inquired, “other than what I have already promised you, which is the nine years[ imprisonment], five years postrelease supervision, waiver of [the] right to appeal, and $270 in fees and fines, has anybody else made any other promise to you in order to get you to plead guilty?” Defendant said, “No” and further stated he had not been threatened or coerced into pleading guilty. Once defendant allocuted to the first-degree rape charge, the court accepted the plea. Right before it adjourned the case for sentencing, Supreme Court simply asked whether the written waiver of the right to appeal had been signed. Defense counsel affirmed that the form had been executed by defendant in his presence and handed it to the court. The court did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it.

The written waiver in this case consists of three sections. The first section, signed by defendant, indicates, in part, that “I execute this waiver after being advised by the court and my attorney of the nature of the rights I am giving up.” The form further states that “I have been advised of my right to take an appeal [and] to prosecute the appeal as a poor person.” The second section, signed by defense counsel, says, in part, that “I represent that prior to the signing of the foregoing waiver, the above-named defendant was fully advised of the rights of a convicted person to take an appeal” in New York. The third section, signed by Supreme Court, states, “[hjaving examined the defendant in open court and on the record, it is the Court’s opinion that the defendant has knowingly and freely waived the right to appeal. Waiver is approved.”

At sentencing, defendant sought to withdraw his guilty plea. He maintained that his attorney misinformed him about the parameters of the plea and he had actually been promised a “MICA [Mentally Ill/Chemically Addicted] therapeutic program.” Supreme Court denied defendant’s request to withdraw his guilty plea and sentenced defendant, a first-time felony offender, as promised. In addition, the court imposed a supplemental sex offender fee.

The Appellate Division, with two Justices dissenting, reversed the judgment of conviction and sentence. The court held that defendant’s appeal waiver was unenforceable “because . . . Supreme Court provided virtually no explanation regarding the waiver and took no measures to ensure that he, a first-[time] felony offender with a history of mental illness, understood it and was validly waiving his right to appeal” (People v Bradshaw, 76 AD3d 566, 568 [2d Dept 2010]). While the majority acknowledged that, in certain instances, “a detailed written waiver can supplement a trial court’s on-the-record explanation of what a waiver of the right to appeal entails, and clarify possible ambiguities in that explanation,” it concluded, given Supreme Court’s “extremely perfunctory” discussion of the waiver, that this was not such a case (id. at 569). Having determined that defendant retained his right to appeal the denial of his suppression motion, the court further agreed with defendant that complainant’s lineup identification of defendant should have been suppressed since the “hearing record is inadequate to establish that his arrest was supported by probable cause” (id. at 570). Finally, the court noted that Supreme Court erred in imposing the supplemental sex offender fee “because the crime was committed prior to the effective date” of the statute providing for such fee (id. at 573).

The dissenting Justices would have modified the judgment of conviction and" sentence to the extent that it was improper for Supreme Court to impose a supplemental sex offender fee, and, as so modified, would have affirmed (see id. at 581). The dissenters, relying on this Court’s holding in People v Ramos (7 NY3d 737 [2006]), concluded that Supreme Court’s colloquy with defendant during the plea proceeding, combined with the executed written waiver form, demonstrated that “defendant effectively waived his right to appeal,” foreclosing any “review of the denial of suppression of identification testimony” (id. at 579). Notwithstanding this position, the dissenters also opined that Supreme Court’s denial of defendant’s suppression motion was appropriate since the hearing record sufficiently established that defendant was in lawful custody at the time that complainant identified him in the lineup (see id. at 580-581).

A Justice of the Appellate Division granted the People leave to appeal (15 NY3d 896 [2010]) and we now affirm.

II.

It is well settled that plea bargaining is “a vital part of our criminal justice system” (People v Seaberg, 74 NY2d 1, 7 [1989]). “In addition to permitting a substantial conservation of prosecutorial and judicial resources, it provides a means where, by mutual concessions, the parties may obtain a prompt resolution of criminal proceedings with all the benefits that enure from final disposition” (id.). Of course, plea bargaining “necessarily includes the surrender of many guaranteed rights,” such as “the right to a jury trial or the privilege against self-incrimination” (id.). Citing the United States Supreme Court’s decision in Schick v United States (195 US 65, 72 [1904]), we observed that absent a constitutional or statutory mandate or public policy considerations, “an accused may waive any right which he or she enjoys” (id.). In Seaberg, we recognized that in New York an accused’s statutory right to an initial appeal (see CPL 450.10) is among the rights that may be relinquished (see id. at 7-8).

As noted earlier, “[a] waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” (People v Lopez, 6 NY3d 248, 256 [2006]; see also People v Calvi, 89 NY2d 868, 871 [1996]; People v Callahan, 80 NY2d 273, 280 [1992]). An appellate waiver meets this standard when a defendant has “a full appreciation of the consequences” of such waiver (Seaberg, 74 NY2d at 11). To that end, a defendant must comprehend that an appeal waiver “is separate and distinct from those rights automatically forfeited upon a plea of guilty” (Lopez, 6 NY3d at 256).

It is the trial court’s responsibility, “in the first instance,” to determine “whether a particular [appellate] waiver satisfies these requirements” (Callahan, 80 NY2d at 280). After all, the trial court “is in the best position to assess all of the relevant factors” (id.) “surrounding the waiver, including the nature and terms of the agreement and the age, experience and background of the accused” (Seaberg, 74 NY2d at 11 [emphasis added]). In addition, “though a trial court need not engage in any particular litany” or catechism in satisfying itself that a defendant has entered a knowing, intelligent and voluntary appeal waiver, a trial court “must make certain that a defendant’s understanding” of the waiver, along with the other “terms and conditions of a plea agreement is evident on the face of the record” (Lopez, 6 NY3d at 256; see also Callahan, 80 NY2d at 283 [a valid appeal waiver “cannot be inferred from a silent record”]).

We applied these principles in People v DeSimone, a companion case decided in conjunction with our decision in Callahan. There, the record established that the defendant signed a written waiver of his right to appeal, although there was no mention of this waiver by the court during the plea proceeding (see DeSimone, 80 NY2d at 279). Consequently, we held that “the record simply [did] not afford a sufficient basis for concluding that [the] defendant’s waiver of his right to appeal was knowing, intelligent and voluntary” (id. at 283). In that regard, we observed that there was not only “no record discussion between the court and [the] defendant concerning the waiver” but there was also no “attempt by the court to ascertain on the record an acknowledgment from [the] defendant that he had, in fact, signed the waiver or that, if he had, he was aware of its contents” (id.). We further noted that the court appeared to have “no prior knowledge of the waiver” and was certainly unaware of “the circumstances surrounding the document’s [purported] execution” (id.).

Although the record before us here is not as bleak as the record in DeSimone, we likewise conclude it does not sufficiently demonstrate that defendant validly waived his right to appeal because the trial court failed to ensure that defendant grasped the minimal information pertaining to the appeal waiver it provided during the plea colloquy. Following Supreme Court’s description of the appeal waiver, it questioned whether defendant comprehended the court’s remarks. Defendant answered by simply asking about the mandatory fees associated with his guilty plea. At this juncture, or at least prior to the completion of the plea proceeding, Supreme Court should have assured itself that defendant adequately understood the right that he was forgoing.

The absence of this inquiry is particularly troubling given defendant’s background and history of mental illness. In the nearly four years between defendant’s indictment and his guilty plea, Supreme Court ordered, on this case alone, that he submit to four article 730 examinations. Of those four examinations, defendant was found unfit to proceed with his case on two occasions, causing lengthy delays in the case. Indeed, the reports furnished by the mental health professionals painstakingly described defendant’s diminished mental capacity. As indicated earlier, they revealed that he was “inaccessible,” “regressed” and “nonplussed by his predicament.” One psychologist commented that defendant possessed “only a sketchy and inaccurate understanding of the legal process.” Even in one of the instances where defendant was competent to proceed with his case, a different psychologist warned that defendant was “in need of a good deal of support by defense counsel, in order to explain the complexity of this case and how it relates to outcomes or plea offers in the other two cases.” These circumstances, combined with the knowledge that defendant was a first-time felony offender who had been ordered to submit to article 730 examinations in two other counties, should have alerted the trial court not only to give defendant a thorough explanation of the appeal waiver but also to make sure that defendant fully grasped the nature of this fundamental right that he was forgoing (see Callahan, 80 NY2d at 280 [“the trial court ... is in the best position to assess all of the relevant factors, including . . . the age(,) experience (and background) of the accused”]).

Nevertheless, the People, the dissenting Justices at the Appellate Division and the dissent here espouse that the oral colloquy during the plea proceeding combined with the written waiver mandates a finding that defendant’s appeal waiver was effective. To support this position, they heavily rely on our decision in People v Ramos (7 NY3d 737 [2006]). We reject this argument and conclude that Ramos is distinguishable from the case at bar.

During the plea proceeding in Ramos, the trial court stated,

“you also understand by entering this plea of guilty you’re giving up any and all rights to appeal this conviction and sentence; in other words, this is now final. Once you agree to do this, not only will there not be any trial but there won’t be any appeals. Do you understand that this is final?”

Defendant Ramos acknowledged that he understood. We held that this oral colloquy, even if it was ambiguous, combined with the written waiver, which “stated that [the] defendant had the right to appeal, explained the appellate process and confirmed that defense counsel fully advised him of the right to take an appeal” under New York law “establishes that [the] defendant knowingly, intelligently and voluntarily waived his right to appeal” (Ramos, 7 NY3d at 738).

We observe that the oral colloquy in Ramos was perfunctory just as the oral colloquy was here. We also recognize that a review of the record in both cases reveals that the written waivers used were identical. Nonetheless, the critical distinction between these two cases is that the defendant in Ramos, unlike here, orally acknowledged on the record that he understood that he was forgoing his right to appeal. Thus, we concluded in Ramos that defendant’s oral confirmation that he comprehended the nature of the appeal waiver in conjunction with the supplemental written waiver form satisfied the requirement that defendant’s understanding of the appeal waiver was “evident on the face of the record” (Lopez, 6 NY3d at 256). Here, by contrast, defendant never orally confirmed that he grasped the concept of the appeal waiver and the nature of the right he was forgoing. Therefore, as in DeSimone, notwithstanding the written appeal waiver form, it cannot be said that defendant knowingly, intelligently and voluntarily waived his right to appeal (see 80 NY2d at 283).

We disagree with the dissent’s suggestion that we have “transformed the taking of an appeal waiver” into a “game of chance,” akin to the purchase of a lottery ticket (dissenting op at 268). Indeed, we advance no new rule today. Rather, we are simply applying our sound decisions—as we must—in Seaberg, Callahan, DeSimone, Lopez and Ramos to the particular circumstances of this case. And this precedent makes clear that “[t]o facilitate appellate review,” it is the trial court’s obligation “to ensure” that a defendant’s understanding of the appeal waiver is “made apparent on the face of the record” (Callahan, 80 NY2d at 280; see also Lopez, 6 NY3d at 256). In Ramos, the trial court met this obligation by eliciting an oral response on the record from defendant that he comprehended the appeal waiver. That oral assurance, combined with the signed written waiver, permitted a finding that the defendant entered into a knowing, voluntary and intelligent appeal waiver. Since there is no evidence from the oral colloquy that Supreme Court adequately assured itself that defendant understood the nature of the appeal waiver, our precedents require a finding that the appeal waiver was invalid.

Finally, we agree with the Appellate Division that testimony concerning complainant’s identification of defendant in a lineup should have been suppressed since the People did not meet their burden in establishing probable cause for defendant’s arrest.

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

Read, J. (dissenting).

Today’s decision brings to mind the

New York State Lottery’s slogan: “Hey, you never know.” My colleagues in the majority, unlike Lottery officials, are not trying to encourage participation in a game of chance, but our trial judges might well be forgiven for concluding that the Court has now transformed the taking of an appeal waiver into something equally uncertain of outcome. This is perhaps best illustrated by comparing the facts and proceedings underlying our decision in People v Ramos (7 NY3d 737 [2006]), handed down only five years ago, with what happened here. Although the differences between the two cases are negligible to nonexistent, a unanimous court upheld Ramos’s appeal waiver, whereas a divided court has now invalidated defendant Jay Jomar Bradshaw’s.

To begin with, the majority emphasizes the 23-year-old Bradshaw’s psychiatric history and status as a first-time felony offender at the time of his plea, although he had been convicted of a misdemeanor and on another occasion adjudicated a youthful offender (majority op at 259-260, 265-266). So, too, in Ramos, where the 30-year-old defendant had scant (if any) experience with the criminal justice system before July 2001, when he was taken into custody in connection with attacks on six women between October 1999 and June 2001. At the time, Ramos suffered from long-standing psychiatric problems, including a history of manic depression and seizures. During the year and a half after his arrest, he was confined in various psychiatric facilities; he twice attempted suicide while awaiting disposition of his case. By October 2001, Ramos had undergone three competency examinations pursuant to article 730 of the Criminal Procedure Law, resulting in a 2-1 split of opinion. His case was repeatedly adjourned for the purpose of determining his competency.

In late 2002, two reviewing physicians found Ramos fit to stand trial. Still, one of these doctors was forced to terminate the examination when Ramos started scratching his face in a self-destructive manner. The physicians diagnosed Ramos as suffering from a probable grand mal seizure disorder; an adjustment disorder with mixed depression and anxiety; and borderline intellectual functioning. In January 2003, defense counsel and the prosecutor agreed, and the court confirmed, that Ramos was nonetheless fit to proceed within the meaning of article 730.

The plea hearing was held in May 2003—mere days after Ramos’s second suicide attempt. The judge asked Ramos if he knew what medication he was taking. Ramos replied, “I have no idea. Right now I’m on Dilantin.” When the judge queried if the medication made it difficult for him to “understand your surroundings,” Ramos replied “I don’t know, sir.” In response to the judge’s follow-up questions, Ramos stated that he knew he was in the courthouse, his lawyer was standing beside him and a judge was questioning him. The judge then asked, “Do you understand what we’re doing here today?” and Ramos replied, “Not fully, but just . . . .” The judge interjected “What is it that you don’t understand?” Before Ramos could respond, though, the judge elicited from him that his mother was in the courtroom; that he had discussed with his mother that he was going to have “either hearings and/or trial or to enter a plea on a negotiated plea for an agreed upon sentence”; that he had enjoyed “a full, fair and complete opportunity” to discuss his case with his attorney and his mother; and that he was satisfied with his attorney.

The judge next asked Ramos if he understood that he could go to trial, and that by deciding not to do so, he was giving up certain constitutional rights, including the right to have his case tried by a jury; to confront the witnesses against him; to remain silent; and to make the District Attorney persuade a jury of his guilt beyond a reasonable doubt. Ramos answered simply “Yes,” each time. The judge explained the counts to which Ramos was pleading guilty and the promised sentence, and told him that his attorney was withdrawing any and all motions in the case. Again, Ramos responded “Yes” when asked if he understood what the judge was saying. He answered “No,” only when questioned about whether any promises other than the bargained-for sentence had been made to induce him to plead guilty.

The entire colloquy about Ramos’s waiver of his right to appeal consisted of the following exchange:

“the court: You also understand that by entering this plea of guilty you’re giving up any and all rights to appeal this conviction and sentence; in other words, this is now final. Once you agree to do this, not only will there not be any trial but there won’t be any appeals; do you understand that this is final?
“the defendant: Yes.”

Ramos then withdrew his plea of not guilty, and admitted facts sufficient to establish that he was guilty of attempted assault in the first degree, first-degree attempted rape (two counts), first-degree rape (two counts) and first-degree robbery. The judge accepted Ramos’s plea, which was made in exchange for the promise of a prison sentence not to exceed 35 years.

Although not mentioned at all during the plea proceeding, Ramos at some point signed a written waiver of his right to appeal. We know this happened because the written waiver was included in Supreme Court’s file for the case. In signing the written waiver, Ramos stated as follows:

“I hereby waive my right to appeal. I execute this waiver after being advised by the court and my attorney of the nature of the rights I am giving up. I have been advised of my right to take an appeal (CPL 450.10), to prosecute the appeal as a poor person and to have an attorney assigned in the event that I am indigent, and to submit a brief and/or argue before an appellate court on any issues relating to my conviction and sentence.
“I make this waiver voluntarily, knowingly and of my own free will.”

Ramos’s attorney signed another section of the written waiver, representing that

“prior to the signing of the foregoing waiver, the above-named defendant was fully advised of the rights of a convicted person to take an appeal under the laws of the State of [N]ew York.
“I further represent that, in my professional opinion, the above waiver by the defendant of the right to appeal was voluntarily and knowingly made and recommend to the Court that the waiver be approved.”

The judge did not sign the final part of the written waiver, which states that the court was of the “opinion that the defendant has knowingly and freely waived the right to appeal,” and that the waiver was approved.

When Ramos appeared for sentencing on June 5, 2003, he handed the court a pro se motion to withdraw his guilty plea based on a claim of mental incompetency. The judge noted that “[i]n reviewing the psychiatric reports, it is clear that there are some issues regarding [Ramos’s] full function and he certainly suffers . . . from grand mal epilepsy,” but denied the motion. The court cited the medical finding that Ramos was competent to stand trial; the extensive plea negotiations; Ramos’s indication at the time of the plea that he understood the nature of the proceedings; and his “full allocution, which was both consistent and coherent.” The judge sentenced Ramos to determinate prison terms aggregating 35 years, as bargained for.

The Appellate Division subsequently ruled that Ramos’s waiver of the right to appeal was valid (People v Ramos, 21 AD3d 1125 [2d Dept 2005]). On appeal to us, Ramos argued that his waiver was not knowing, intelligent and voluntary because the judge presented the right to appeal as on a par with trial rights automatically forfeited by entry of a guilty plea, and was insufficiently “mindful of [Ramos’s] intellectual and psychiatric deficits” when dealing with him.

With respect to the first point, Ramos relied on our decision in People v Billingslea (6 NY3d 248, 256 [2006]), where we stated that

“[w]hen a tried court characterizes an appeal as one of the many rights automatically extinguished upon entry of a guilty plea, a reviewing court cannot be certain that the defendant comprehended the nature of the waiver of appellate rights. The record must establish that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty— the right to remain silent, the right to confront one’s accusers and the right to a jury trial, for example.”

With respect to the second point, Ramos cited People v Seaberg (74 NY2d 1, 11 [1989]) for the proposition that the trial judge must determine whether an appeal waiver was knowing and intelligent by considering, among other factors, the accused’s “age, experience and background.”

We held that Ramos’s waiver of the right to appeal was valid because

“[e]ven if there were any ambiguity in the sentencing court’s colloquy, [Ramos] executed a detailed written waiver, distinguishing this case from People v Billingslea, in which the sentencing court’s colloquy was accompanied by nothing other than defendant’s one-word response to the question whether she understood the conditions of her plea” (7 NY3d 737, 738 [2006] [internal quotation marks and citation omitted]).

Critically, we noted that Ramos’s “written waiver stated that [he] had the right to appeal, explained the appellate process and confirmed that defense counsel fully advised him of the right to take an appeal under the laws of the State of New York”; and that “[t]he record therefore establishes that [Ramos] knowingly, intelligently and voluntarily waived his right to appeal” (id.).

Here, unlike the situation in Ramos, the judge twice informed Bradshaw that he was giving up his appeal rights, and did so in a way that did not risk conflating the right to appeal with those rights automatically forfeited by a guilty plea. The first exchange follows:

“the court: Let me just put the whole plea on the record. You will be pleading guilty to rape in the first degree, with a promised sentence of nine years, to run concurrent with whatever you get in Queens and the Bronx.[] There’s a period of something called post release supervision that follows it. And there are a couple of fines, which I do not have the authority to waive, of $270, but that will come out of inmate funds.
“There’s a waiver of right to appeal. What that means, the conviction here is final, that there is not a higher court you can take it to. Do you understand that?
“the defendant: The waiver—I mean the money fee, is this the same fee that—
“the court: There will be one in each county.
“[defense counsel]: They will take it out of inmate funds.
“the court: Do you understand that?
“the defendant: Yes.”

This exchange indicates that Bradshaw certainly heard what the judge had to say about both the waiver of his right to appeal and fees, but was only interested in following up about the fees. The judge’s second “Do you understand that?” and Bradshaw’s affirmative response might arguably refer to the judge’s statement about the appeal waiver or the fees (or both), or only to the judge’s and defense counsel’s answer to Bradshaw’s immediately preceding question about the fees.

The second exchange ensued later in the plea proceeding:

“the court: Now, other than what I have already promised you, which is the nine years, with my recommendation of concurrent sentencing,[] five years post release supervision, waiver of right to appeal, and $270 in fees and fines, has anybody else made any other promise to you in order to get you to plead guilty?
“the defendant: No.”

Again, Bradshaw, who frequently asked questions of the judge during the plea colloquy, said not a word about the waiver of appeal. He pleaded guilty to first-degree rape.

Finally, at the very end of the plea proceeding, the judge asked if the written waiver of appeal had been signed. Defense counsel responded, “Handing up to the Court. . . the waiver of right to appeal executed by Mr. Bradshaw and witnessed by myself as his attorney.” The judge also signed the written waiver, which was identical to the one in Ramos.

At sentencing, Bradshaw made a pro se motion to withdraw his plea. He argued that his attorney “took advance [sic] of [his] mental disadvantage to fully understand” by “persuading]” and “coercing]” him into taking a plea, and “misinforming]” him about the “actual plea agreement” by inaccurately representing that he would receive a therapeutic program. The judge denied the motion and imposed the agreed-upon sentence of nine years in prison and five years of postrelease supervision.

So why was the appeal waiver valid in Ramos but not in this case? Ramos was at least as fragile mentally as Bradshaw, who participated far more actively in the plea proceeding. And in Billingslea, we explained that although the “better practice” would be for the judge to explain to a defendant during the plea colloquy that “though he ordinarily retains the right to an appeal even after pleading guilty, ... he was being offered a particular plea by the prosecution on the condition that he give up that right,” it was “even better to secure a written waiver” to the same effect (6 NY3d at 257 [emphasis added]). Further, in Ramos, we held that such a written waiver—and, as already mentioned, the written waivers in Ramos and in this case are identical—cured “any ambiguity in the sentencing court’s colloquy” about whether the “[defendant's waiver of his right to appeal was effective” (7 NY3d at 738). Yet here, the majority completely discounts the written waiver, “render[ing it] entirely superfluous” in the words of the dissenters at the Appellate Division (76 AD3d 566, 579 [2d Dept 2010, Fisher, J., dissenting]). Put even more bluntly, we are evidently to assume that Bradshaw did not know what he was signing, and that defense counsel’s and the court’s representations are not to be believed. I respectfully dissent.

Chief Judge Lifpman and Judges Pigott and Jones concur with Judge Ciparick; Judge Read dissents in a separate opinion in which Judges Graffeo and Smith concur.

Order affirmed.

      . “ ‘Incapacitated person’ means a defendant who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense” (CPL 730.10 [1]).

        . On a subsequent court date in May 2006, Supreme Court was also informed that defendant had a case pending in Bronx County and an article 730 examination had been ordered there as well.

      . The court also advised defendant that his guilty plea may subject him to civil confinement pursuant to article 10 of the Mental Hygiene Law.

      . At sentencing, defendant also requested to proceed pro se, expressing discontent with his attorney’s representation. Supreme Court sentenced defendant without addressing this issue.

      . His attorney, in her brief, said that Ramos had never before been in trouble with the law. The District Attorney did not dispute this; however, in the transcript of the plea proceeding the District Attorney stated that Ramos had a prior felony arrest, but that the grand jury did not return an indictment.

        . As the majority opinion notes, Bradshaw had additional felony cases pending against him in those boroughs (majority op at 260, 260 n 2).

      . If convicted after trial, Bradshaw might have been sentenced to 25 years in prison.


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    [961 NE2d 1107, 938 NYS2d 496]
    Mindaugas Blaudziunas et al., Appellants, v Edward Cardinal Egan, as Cardinal of the Archdiocese of New York and as Trustee of Our Lady of Vilna Church, et al., Respondents.
    Argued November 15, 2011;
    decided December 13, 2011

      POINTS OF COUNSEL

      Law Office of Harry Kresky, New York City (Harry M. Kresky of counsel), for appellants.
    I. The court below misconstrued Religious Corporations Law § 5. (Morris v Scribner, 69 NY2d 418; People v Finnegan, 85 NY2d 53; Trustees of Presbytery of N.Y. v Westminister Presbyt. Church of W. Twenty-Third St., 222 NY 305; Rangolan v County of Nassau, 96 NY2d 42; Carney v Philippone, 1 NY3d 333; Matter of Smith v Calvary Baptist Church, 35 AD3d 749; Watson v Christie, 288 AD2d 29; Baxter v McDonnell, 155 NY 83; People’s Bank v St. Anthony’s R.C. Church, 109 NY 512; Committee to Save St. Brigid’s Inc. v Egan, 45 AD3d 375.) II. Consideration of the application of Religious Corporations Law § 5 does not involve the Court in the adjudication of matters that are ecclesiastical in nature. (Presbyterian Church in U. S. v Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 US 440; Jones v Wolf, 443 US 595; Avitzur v Avitzur, 58 NY2d 108; Sieger v Union of Orthodox Rabbis of U.S. & Can., 1 AD3d 180; Episcopal Diocese of Rochester v Harnish, 11 NY3d 340; Morris v Scribner, 69 NY2d 418; Saint Nicholas Cathedral of Russian Orthodox Church in N. Am. v Kedroff, 306 NY 38; Westminster Presbyt. Church of W. Twenty-Third St. v Trustees of Presbytery of NY., 211 NY 214; Matter of Congregation Yetev Lev D’Satmar, Inc. v Kahana, 9 NY3d 282.) III. Appellants state a claim for breach of fiduciary duty. (Barr v Wackman, 36 NY2d 371; Auerbach v Bennett, 47 NY2d 619; Higgins v New York Stock Exch., Inc., 10 Misc 3d 257; Foley v D’Agostino, 21 AD2d 60; Matter of Manhattan Eye, Ear & Throat Hosp. v Spitzer, 186 Misc 2d 126; Vione v Tewell, 12 Misc 3d 973;
      Martinelli v Bridgeport R.C. Diocesan Corp., 196 F3d 409; Sanders v Casa View Baptist Church, 134 F3d 331; Matter of Smith v Calvary Baptist Church, 35 AD3d 749; Watson v Christie, 288 AD2d 29.) IV To the extent the court below exempts Roman Catholic religious corporations from requirements to which other religious and not-for-profit corporations are subject, it violates the Establishment Clause of the First Amendment. (County of Allegheny v American Civil Liberties Union, Greater Pittsburgh Chapter, 492 US 573; Wallace v Jaffree, 472 US 38; Swanson By & Through Swanson v Guthrie Ind. School Dist. No. I-L, 135 F3d 694; United Christian Scientists v Christian Science Bd. of Directors, First Church of Christ, Scientist, 829 F2d 1152.) V The fact that the church has been suppressed does not render section 5 of the Religious Corporations Law or the above principles inapplicable.

      Leahey & Johnson, P.C., New York City (Peter James Johnson, Jr., Peter James Johnson, Joanne Filiberti and Gabriel M. Krausman of counsel), for respondents.
    I. The Appellate Division, First Department, followed the statutory framework adopted by the New York State Legislature almost 150 years ago and the well-settled law interpreting the Religious Corporations Law to properly reject appellants’ tortured and unconstitutional interpretation of Religious Corporations Law § 5. (Committee to Save St. Brigid’s Inc. v Egan, 45 AD3d 375; Walker Mem. Baptist Church, Inc. v Saunders, 285 NY 462; Fiske v Beaty, 206 App Div 349, 238 NY 598; Islamic Ctr. of Harrison, Pa. v Islamic Science Found., 216 AD2d 357; Metropolitan Baptist Church Inc. v Braxton, 285 App Div 1044; Bank of Manhattan Trust Co. v 2166 Broadway Corp., 142 Misc 910; Maryland & Virginia Eldership of Churches of God v Church of God at Sharpsburg, Inc., 396 US 367; Committee to Save St. Brigid v Egan, 30 AD3d 356.) II. The Appellate Division, First Department, correctly ruled that the decision to demolish the church building of the subject suppressed incorporated parish, duly made by the archbishop and the trustees of the parish in accordance with applicable canon law and church bylaws, was ecclesiastical in nature, and properly rejected the invitation to interfere in the governance and administration of a hierarchical church in accordance with the Free Exercise Clauses of the United States and New York State Constitutions and the First and Fourteenth Amendments of the United States Constitution. (Filetto v St. Mary of Assumption Church of Binghamton, 61 Misc 2d 278; Watson v Jones, 80 US 679; Maryland & Virginia Eldership of Churches of God v Church of God at Sharpsburg, Inc., 396 US 367; Serbian Eastern Orthodox Diocese for United States and Canada v Milivojevich, 426 US 696; Kedroff v Saint Nicholas. Cathedral of Russian Orthodox Church of North America, 344 US 94; Faith United Christian Church v United Christian Church, 266 AD2d 428; Burke v Rector, Churchwardens & Vestrymen of Trinity Church, 63 Misc 43; Committee to Save St. Brigid v Egan, 30 AD3d 356; Jones v Wolf, 443 US 595; Committee to Save St. Brigid’s Inc. v Egan, 45 AD3d 375.) III. The Appellate Division, First Department, correctly ruled that the parish’s ecclesiastical existence has been extinguished, and appellants, as former parishioners of a now defunct religious society, had no standing to bring their action.
   OPINION OF THE COURT

Jones, J.

The issue before this Court is whether section 5 of the Religious Corporations Law grants plaintiffs, former parishioners of a church incorporated as a religious corporation, the authority to challenge the board of trustees’ decision to demolish the church. We hold that it does not.

In 1909, Our Lady of Vilna Church—a Roman Catholic church established to serve a Lithuanian community in New York City—was incorporated by the then board of trustees, comprised of the archbishop of the Roman Catholic Diocese of New York, the vicar general of the diocese, the rector of Our Lady of Vilna and two laymen trustees selected and appointed by the ex officio members, pursuant to the Religious Corporations Law. The land on which the church building and former rectory are located was deeded to the church corporation in 1910 and 1912.

At a special meeting of the board of trustees in 1980, the church adopted bylaws, consistent with the Religious Corporations Law and Canon Law of the Roman Catholic Church, regarding the governance of the church corporation and the rights and duties of the trustees. In relevant part, it defined “Church” as the “ecclesiastical entity (parish) that was incorporated under civil law as this Corporation” and “Members of the Church” to “mean the parishioners of the aforesaid ecclesiastical entity (parish).” The bylaws also explained the powers of the board of trustees and the limitations upon said body. It stated: “The Trustees of the Corporation shall constitute its governing body ... No act or proceeding of the Trustees shall be valid without the sanction of the Archbishop.” The bylaws also conferred upon the trustees “custody and control of all the temporalities and property belonging to the Corporation ... in accordance with the discipline, rules and usages of the Roman Catholic Church and of the Archdiocese for the support and maintenance of the Church.”

In 2006, the archbishop of the Diocese of New York, Edward Cardinal Egan, issued a decree of suppression, an ecclesiastical decision to close the church building and extinguish the parish, due to “a serious decline in its parish population, the need to provide for enhanced stewardship of Archdiocesan resources, and optimum use of Archdiocesan clergy and lay personnel to better serve the People of God.” As stated in the decree, the archbishop proceeded pursuant to “Canon [Law] 515.2,[] after having first heard the Presbyteral Council of the Archdiocese of New York and consulted with the Regional Vicar, the administrator, and neighboring pastors.” In 2007, after the archdiocese issued a press release regarding its decision to close the church, two former lay trustees of the church commenced an action to challenge the suppression decree. In August 2007, that action was discontinued by stipulation.

In October 2007, the board of trustees of the religious corporation convened a special meeting. A quorum was present—the three ex officio members and a lay trustee. At the meeting, the lay trustee was reappointed, and another was appointed. According to the meeting’s minutes, the archbishop reported upon his “ecclesiastical suppression of the parish and closure of the church building due to the longstanding decline in parish population, lack of attendance and paucity of requests for baptisms, weddings and funerals, rarely held Lithuanian language Masses and the need to enhance and preserve resources to better serve the faithful.” Additionally, a report concerning the condition of the building detailed an “historical overview of the problems with the building . . . the building’s condition . . . [and a] conclusion] that there was a significant issue with respect to structural condition.” After noting that there were “no plans to reopen the church for worship,” the board of trustees unanimously adopted a resolution to demolish the building.

In February 2008, plaintiffs, former parishioners of the church, commenced this action and moved for a preliminary injunction seeking to enjoin defendants, the board of trustees, from demolishing the church building. Supreme Court denied plaintiffs’ motion and granted defendants’ motion to dismiss the complaint.

The Appellate Division affirmed. The court concluded, inter alia, that the Religious Corporations Law “does not require that the demolition of the church be authorized by the parishioners,” but “vest[s] approval authority for all actions taken by the trustees of an incorporated Roman Catholic church in the archbishop or bishop of the diocese to which that church belongs” (74 AD3d 697, 698 [2010]). One justice dissented. The Appellate Division granted plaintiffs’ motion for leave to appeal to this Court and certified a question. We now affirm.

“[R]eligious bodies are to be left free to decide church matters for themselves, uninhibited by State interference,” save for matters that can be resolved through the application of “neutral principles of law” (First Presbyt. Church of Schenectady v United Presbyt. Church in U.S. of Am., 62 NY2d 110, 116-117, 120 [1984]). In Jones v Wolf, the United States Supreme Court recognized that “[t]he primary advantages of the neutral-principles approach are that it is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and policy” (443 US 595, 603 [1979]). It “relies exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges . . . [and] promises to free civil courts completely from entanglement in questions of religious doctrine, polity, and practice” (id.). More specifically, the

“[application of the neutral principles doctrine requires the court to focus on the language of the deeds, the terms of the local church charter, the State statutes governing the holding of church property, and the provisions in the constitution of the general church concerning the ownership and control of the church property” (Episcopal Diocese of Rochester v Harnish, 11 NY3d 340, 350 [2008] [internal quotation marks and citation omitted]).

Notwithstanding the bylaws of this church corporation, which grant the board of trustees custody and control of the church property, plaintiffs rely upon Religious Corporations Law § 5 to challenge the board of trustees’ decision to demolish the church building. Plaintiffs contend that the decision to demolish the church building must be authorized by the parishioners, who they claim are members of the church corporation. This argument is unavailing.

Section 5 of the Religious Corporations Law, in relevant part, vests the custody and control of a religious corporation’s real property in the board of trustees, and directs the administration of such property

“in accordance with the discipline, rules and usages of the corporation ... to which the corporation is subject, and with the provisions of law relating thereto, for the support and maintenance of the corporation, or, providing the members of the corporation at a meeting thereof shall so authorize, of some religious, charitable, benevolent or educational object conducted by said corporation or in connection with it, or with the denomination, if any, with which it is connected.”

It further states

“[t]he trustees of an incorporated Roman Catholic Church . . . shall not transfer any property as herein provided without the consent of the archbishop or bishop of the diocese to which such church belongs or in case of their absence or inability to act, without the consent of the vicar general or administrator of such diocese” (Religious Corporations Law § 5).

Relevant to Roman Catholic churches, Religious Corporations Law §§91 and 92 explain the governance of an incorporated Roman Catholic church and the division and disposition of parish property, respectively. Section 91 requires

“[t]he archbishop or bishop and the vicar-general of the diocese to which any incorporated Roman Catholic church belongs, the rector of such church, and their successors in office ... by virtue of their offices, [to] be trustees of such church ... [as well as t]wo laymen, members of such incorporated church.”

It further states:

“No act or proceeding of the trustees of any such incorporated church shall be valid without the sanction of the archbishop or bishop of the diocese to which such church belongs, or in case of their absence or inability to act, without the sanction of the vicar-general or of the administrator of such diocese.”

Section 92 recognizes the jurisdiction of a Roman Catholic bishop over an individual parish and his authority to act independently or with the consent of the trustees of the original Roman Catholic church corporation to transfer property to a new or second Roman Catholic church corporation.

Section 5 of the Religious Corporations Law is consistent with sections 91 and 92 and the bylaws of the church corporation. They uniformly recognize the authority of the board of trustees and the archbishop to control church property. However, plaintiffs characterize themselves and other former parishioners as “members of the corporation,” pursuant to section 5 of the Religious Corporations Law, and allege that they have the collective right to veto the demolition decision by refusing to give the requisite authorization relating to the use of church resources when they are used for some “religious, charitable, benevolent or educational object.”

Applying the neutral principles of law doctrine, no such right or authority has been reserved for the benefit of the parishioners. Pursuant to the bylaws, parishioners are members of the ecclesiastical body—not members of a corporation. Such status does not confer upon them the rights and duties as members of the religious corporation. Nor have plaintiffs pointed to any statute, corporate governance document, church canon or other provision that identifies current or former parishioners as members of the corporation. Given the deed to the property at issue is in the name of the religious corporation and the corporation’s bylaws and the Religious Corporations Law unequivocally grant the trustees, as well as the archbishop specifically, the power to control and administer the property of the church corporation, the authority to demolish the church building was within their purview. Thus, plaintiffs have no basis to challenge the actions properly voted upon by the board of trustees and sanctioned by the archbishop.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question not answered as unnecessary.

Chief Judge Lippman and Judges Ciparick, Grapfeo, Read, Smith and Pigott concur.

Order affirmed, etc.

      . The bylaws do not identify or define any group of individuals as “members of the corporation,” a term used in the Religious Corporations Law.

      . Canon Law 515.2 provides, “It is only for the diocesan bishop to erect, suppress, or alter parishes. He is neither to erect, suppress, nor alter notably parishes, unless he has heard the presbyteral council.”


author: Graffeo, J.

text:
    [961 NE2d 668, 938 NYS2d 277]
    The People of the State of New York, Respondent, v Scott C. Furey, Appellant.
    Argued November 16, 2011;
    decided December 15, 2011

      POINTS OF COUNSEL

      Muldoon & Getz, Rochester (Gary Muldoon and Martin P. McCarthy, II, of counsel), for appellant.
    I. Given prospective juror Comerford’s personal and professional relationships with eight prosecution witnesses, it was error to deny defendant’s for-cause challenge. (People v Branch, 46 NY2d 645; People v Rentz, 67 NY2d 829; People v Provenzano, 50 NY2d 420; People v Colon, 71 NY2d 410; People v Lynch, 95 NY2d 243; People v Smith, 52 AD3d 847; People v Clark, 125 AD2d 868.) II. The trial judge’s denial of defendant’s challenge for cause for prospective juror Close, when she gave no unequivocal assurance that she could set aside bias against defendant’s character, is reversible error. (People v Torpey, 63 NY2d 361; People v Chambers, 97 NY2d 417; People v Arnold, 96 NY2d 358; People v Greene, 290 AD2d 349; People v Johnson, 94 NY2d 600; People v Cargill, 70 NY2d 687; People v Buford, 69 NY2d 290; People v Blyden, 55 NY2d 73; People v Brzezicki, 249 AD2d 917; People v Harris, 179 Misc 2d 612.)

      Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of counsel), for respondent.
    I. Defendant forfeited his right to challenge for cause prospective juror Comerford. (People v Powell, 13 AD3d 975, 4 NY3d 889.) II. The trial court properly denied defendant’s challenge for cause regarding prospective juror Comerford. (People v Colon, 71 NY2d 410; People v Brown, 136 AD2d 1, 72 NY2d 857; People v Rentz, 67 NY2d 829; People v Clark, 281 AD2d 947; People v Branch, 46 NY2d 645; People v Lynch, 95 NY2d 243; People v Maldonado, 278 AD2d 513; People v Cassidy, 16 AD3d 1079, 5 NY3d 760; People v Provenzano, 50 NY2d 420; People v Pickren, 284 AD2d 727, 96 NY2d 923.) III. The trial court properly denied defendant’s challenges for cause regarding prospective juror Close. (People v Chambers, 97 NY2d 417; People v Shulman, 6 NY3d 1; People v Smith, 62 AD3d 422, 13 NY3d 749; People v Trinidad, 8 AD3d 106, 3 NY3d 682.)
   OPINION OF THE COURT

Graffeo, J.

We hold that County Court abused its discretion as a matter of law when it denied defendant’s for-cause challenge to a prospective juror who had personal and professional relationships with several of the witnesses expected to testify at defendant’s trial.

Defendant Scott Furey was charged with committing burglary, kidnapping and other offenses against his former girlfriend. Detective Sergeant Kevin Carter of the City of Oswego Police Department testified at the suppression hearing that this matter was assigned to him by Captain Comerford. The captain’s wife subsequently reported to County Court for jury duty.

During voir dire, Mrs. Comerford was interviewed as a prospective juror. She acknowledged being familiar with some of the individuals who were listed as possible prosecution witnesses since they worked with her husband in the Oswego Police Department. With regard to two specific police witnesses, Mrs. Comerford informed the court that she knew them both professionally and personally (though more of the former than the latter), had known them for three years and 10 years, respectively, and had contact with them on a monthly basis. County Court inquired whether Mrs. Comerford could consider the two officers’ “testimony in the same fashion and in the same light as any other witness or would you give their testimony greater or lesser consideration or subject their testimony to different tests of credibility because you know those witnesses?” She replied, “I believe I can be fair” and agreed that she “would look at their testimony in the same fashion.” She also denied having “any special tests or higher beliefs of credibility because” of her familiarity with the officers. After the names of the other police officers were disclosed as possible witnesses, Mrs. Comerford indicated that she knew five of the officers and would view their testimony in the same manner as other witnesses. She further stated that she knew an additional witness, an assistant district attorney. In total, Mrs. Comerford was acquainted with 8 of the 14 witnesses identified by the People.

The defense moved to dismiss Mrs. Comerford for cause. The People objected, relying on her statements that she would not give preferential treatment to the testimony of the witnesses she knew. County Court denied the for-cause challenge, explaining that Mrs. Comerford “indicated that she knows nothing about the facts and circumstances of this case and through her husband she knows who many of the People’s witnesses are potentially and she would treat them the same as any other witnesses.” Defendant then used a peremptory challenge to remove Mrs. Comerford from the panel and subsequently exhausted his allotment of peremptories.

Defendant was convicted of second-degree kidnapping, second-degree burglary and other offenses. He was sentenced to an aggregate term of 5½ years imprisonment and five years of post-release supervision. The Appellate Division affirmed (77 AD3d 1357 [2010]) and a Judge of this Court granted defendant leave to appeal (15 NY3d 952 [2010]). We now reverse and order a new trial.

A prospective juror may be challenged for cause on several grounds, one of which is a preexisting relationship with a potential witness that “is likely to preclude [the prospective juror] from rendering an impartial verdict” (CPL 270.20 [1] [c]). This is referred to colloquially as an “implied bias” (see Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 270.20, at 300 [2002 ed]) that requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial (see e.g. People v Branch, 46 NY2d 645, 650 [1979]; People v Rentz, 67 NY2d 829, 831 [1986]). And such bias, whether acknowledged by the declarant or not, cannot be cured with an expurgatory oath. “[T]he risk of prejudice arising out of the close relationship . . . [is] so great that recital of an oath of impartiality could not convincingly dispel the taint” (Branch, 46 NY2d at 651) and creates the perception that the accused might not receive a fair trial before an impartial finder of fact. For this reason, we have advised trial courts to exercise caution in these situations by leaning toward “disqualifying a prospective juror of dubious impartiality” (id.).

Not all relationships between a prospective juror and a potential witness or interested party require disqualification for cause as a matter of law (see Rentz, 67 NY2d at 830). The frequency of contact and nature of the parties’ relationship are to be considered in determining whether disqualification is necessary (see id. at 830-831; People v Scott, 16 NY3d 589, 595 [2011]). Thus, a prospective juror who worked with a trial prosecutor in prior cases and had direct and personal contact with him was subject to removal for cause (Branch, 46 NY2d at 651), but an individual who campaigned for the political party that endorsed a district attorney was not (see People v Provenzano, 50 NY2d 420, 425 [1980]). Similarly, a prospective juror who had relatives in law enforcement—but no personal or social relationships with any of the testifying police officers—was not per se excludable for cause (see People v Colon, 71 NY2d 410, 418 [1988], cert denied 487 US 1239 [1988]).

Considering this precedent, we conclude that Mrs. Comer-ford’s familiarity with numerous witnesses satisfied the implied bias standard under CPL 270.20 (1) (c), necessitating her removal for cause. During the suppression hearing that occurred prior to jury selection, the testimony established that Captain Comerford had assigned the investigation to Detective Sergeant Carter. More significantly, Mrs. Comerford forthrightly disclosed that she knew eight of the witnesses (seven police officers and an assistant district attorney) who were to testify at trial—more than half of the People’s potential witnesses—and had frequent professional and social relationships with at least two of the police officers. Although Mrs. Comerford offered unequivocal assurances of impartiality, those declarations were ineffective in a case like this because there was a considerable risk that she could unwittingly give undue credence to the witnesses she knew and her service would give rise to the perception that defendant did not receive a fair trial. It was therefore an abuse of discretion as a matter of law to deny defendant’s challenge for cause. In light of this determination, defendant’s remaining contention is academic.

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

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

Order reversed, etc.

       We reject the People’s argument that this issue is unreviewable. Their claim that Mrs. Comerford could not be challenged for cause by the defense after the People used peremptory challenges (see CPL 270.15 [2]; cf. People v McQuade, 110 NY 284, 295 [1888]) was neither raised during jury selection nor decided adversely to defendant.


author: Jones, J. Pigott, J. (dissenting).

text:
    [961 NE2d 657, 938 NYS2d 266]
    In the Matter of New York State Superfund Coalition, Inc., Appellant, v New York State Department of Environmental Conservation et al., Respondents.
    Argued November 14, 2011;
    decided December 15, 2011

      POINTS OF COUNSEL

      Hiscock & Barclay, LLP, Rochester (Thomas F. Walsh, Thomas J. Warth and Danielle E. Mettler of counsel), for appellant.
    I. The issue concerning the State Superfund program cleanup goal is of public importance. (Matter of Flynn v State Ethics Commn., Dept. of State, State of N.Y., 87 NY2d 199; Matter of Tze Chun Liao v New York State Banking Dept., 74 NY2d 505; Finger Lakes Racing Assn. v New York State Racing & Wagering Bd., 45 NY2d 471; Servomation Corp. v State Tax Commn., 51 NY2d 608; Matter of Campagna v Shaffer, 73 NY2d 237; Matter of Consolidated Edison Co. of N.Y. v Department of Envtl. Conservation, 71 NY2d 186; Boreali v Axelrod, 71 NY2d 1; Matter of KSLM-Columbus Apts., Inc. v New York State Div. of Hous. & Community Renewal, 5 NY3d 303.) II. The Appellate Division erred in deferring to New York State Department of Environmental Conservation’s interpretation of ECL 27-1313 (5) (d). (Flacke v Onondaga Landfill Sys., 69 NY2d 355; Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382; Matter of Binghamton-Johnson City Joint Sewage Bd. v New York State Dept. of Envtl. Conservation, 159 AD2d 887; Matter of Lighthouse Pointe Prop. Assoc. LLC v New York State Dept. of Envtl. Conservation, 14 NY3d 161; Matter of Tze Chun Liao v New York State Banking Dept., 74 NY2d 505; Friedman v Connecticut Gen. Life Ins. Co., 9 NY3d 105.) III. Even if the Court determines that ECL 27-1313 (5) (d) is ambiguous, the legislative history compels a finding that the lower appellate court erred as a matter of law. (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Lighthouse Pointe Prop. Assoc. LLC v New York State Dept. of Envtl. Conservation, 14 NY3d 161; Riccelli Enters., Inc. v New York State Dept. of Envtl. Conservation, 30 Misc 3d 573; Matter of Tze Chun Liao v New York State Banking Dept., 74 NY2d 505; Matter of Campagna v Shaffer, 73 NY2d 237; Servomation Corp. v State Tax Commn., 51 NY2d 608; Roberts v Tishman Speyer Props., L.P., 13 NY3d 270; Flacke v Onondaga Landfill Sys., 69 NY2d 355; Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662; Matter of Cintron v Calogero, 15 NY3d 347.)

      Eric T. Schneiderman, Attorney General, Albany (Andrew B. Ayers, Barbara D. Underwood and Denise A. Hartman of counsel), for respondents.
    I. New York State Department of Environmental Conservation’s regulations adopt the most reasonable interpretation of article 27, title 13 of ECL and give meaning to all of the relevant statutory language. (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653; Roberts v Tishman Speyer Props., L.P., 13 NY3d 270; Dana v New York Cent. & Hudson Riv. R.R. Co., 92 NY 639; Matter of Nicholas v Kahn, 47 NY2d 24; Matter of Golf v New York State Dept. of Social Servs., 91 NY2d 656; Matter of General Elec. Capital Corp. v New York State Div. of Tax Appeals, Tax Appeals Trib., 2 NY3d 249; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Lighthouse Pointe Prop. Assoc. LLC v New York State Dept. of Envtl. Conservation, 14 NY3d 161; United States v Mead Corp., 533 US 218; Chevron U.S.A. Inc. v Natural Resources Defense Council, Inc., 467 US 837.) II. The Legislature acquiesced in New York State Department of Environmental Conservation’s interpretation of the goals of remedial programs. (Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84; Matter of Oswald N, 87 NY2d 98; Clark v Cuomo, 66 NY2d 185.)
   OPINION OF THE COURT

Jones, J.

Petitioner New York State Superfund Coalition, Inc. (Superfund Coalition) commenced this combined CPLR article 78 proceeding and declaratory judgment action to challenge certain regulations promulgated by the New York State Department of Environmental Conservation (DEC or the Department) with respect to remedial programs implemented to clean “inactive hazardous waste disposal sites.” The Superfund Coalition asserts that the regulations are ultra vires and impermissibly allow DEC to order expansive remedial programs that contravene the limited legislative goal of article 27, title 13 of the Environmental Conservation Law to identify and remove only “significant threats.” We hold that DEC did not exceed its authority or act contrary to law in enacting the subject regulations.

I

In 1979, the Legislature enacted article 27, title 13 of the Environmental Conservation Law to address the public issue of inactive hazardous waste disposal sites. At the time of the enactment, DEC had identified approximately 530 sites throughout the state that posed a threat to public health and the environment given their “proximity to densely populated areas or . . . water courses or aquifers” (Budget Rep on Bills, at 2, Bill Jacket, L 1979, ch 282). At the time, inactive hazardous waste disposal sites were largely unregulated, as opposed to active waste disposal sites which were monitored under state and federal systems of regulation (see id.). As inactive sites were essentially unmonitored, there was no standard practice of ensuring adequate disposal or containment of hazards to minimize environmental impacts (see id.). The 1979 enactment was proposed to place the burden of remedying these sites on those responsible for the presence of waste material, or in the alternative, task DEC with implementing a remedial program in the event the responsible party was unknown, unable or unwilling to ameliorate the situation.

The Superfund Coalition is a not-for-profit corporation whose members consist of commercial entities that own land within the State of New York listed on a registry of sites subject to Department regulation. Previously, in Matter of New York State Superfund Coalition v New York State Dept. of Envtl. Conservation (75 NY2d 88 [1989]), the Superfund Coalition asked this Court to address DEC regulations regarding the identification of “inactive hazardous waste disposal sites” requiring remedial action (see ECL 27-1303, 27-1313 [3]). In that case, this Court annulled the regulation, concluding that DEC had acted beyond its authority by enacting overreaching regulations that conflicted with the statutory scheme of the Legislature. While the Legislature had envisioned the utilization of a “significant threat” standard in the identification of inactive hazardous waste disposal sites—which contemplated the existence of an actual threat, or “more than the mere presence of hazardous waste” (75 NY2d at 93)—the corresponding regulation permitted the Department to identify waste sites based on the potential existence of hazardous waste (see id. at 93-94). This Court observed that, as constructed, “the DEC regulation would allow remedial programs to be ordered for all inactive hazardous waste disposal sites, not just those which pose a significant threat as targeted by the Legislature” (id. at 94 [internal quotation marks omitted]).

In this appeal, the Superfund Coalition now challenges regulations concerning the nature and breadth of remedial programs implemented to clean inactive hazardous waste disposal sites following their identification under the “significant threat” standard set forth by the Legislature. It commenced a combined CPLR article 78 proceeding and declaratory judgment action to challenge and annul regulations 6 NYCRR 375-2.8 (a), 6 NYCRR 375-1.8 (f) (9) (i), 6 NYCRR 375-2.2 (i) (7) and 6 NYCRR 375-1.8 (g) (5) on grounds that their adoption was in excess of the DEC’s jurisdiction, and arbitrary and capricious.

Supreme Court granted the petition in part, invalidating 6 NYCRR 375-2.8 (a) and 6 NYCRR 375-1.8 (f) (9) (i) as null and void. The court reasoned that

“ECL 27-1313(5)(d) authorizes a complete cleanup

to the extent of the elimination of the significant threat and of the imminent danger of irreversible or irreparable damage to the environment. Had the Legislature wished to return every inactive hazardous waste site to predisposal conditions, it could have stopped at a complete cleanup. But it did not ... In ignoring the statutory definitions and goals, the revised regulation is an unlawful continuation by the DEC to equate hazardous waste with significant threat, in that a return to predisposal conditions necessitates removal of all hazardous wastes, whereas the statute requires only the elimination of the significant threat and of the imminent danger of irreversible or irreparable damage to the environment” (internal quotation marks and citation omitted).

The Appellate Division unanimously modified by reversing the portion of Supreme Court’s order that annulled the two regulations (68 AD3d 1588 [3d Dept 2009]). The court, finding ambiguity in the language of section 27-1313 (5), deferred to DEC’s interpretation and concluded that “the regulatory goal is consistent with the statutory definition of inactive hazardous waste disposal site remedial program, which is broad enough to allow the employment of a wide range of methods and may address even potential hazards once DEC has made the threshold determination that remediation is necessary” (68 AD3d at 1590 [internal quotation marks and citation omitted]). This Court granted the Superfund Coalition leave to appeal (15 NY3d 712 [2010]).

The issue before this Court is whether regulations 6 NYCRR 375-2.8 (a) and 6 NYCRR 375-1.8 (f) (9) (i), which call for the restoration of inactive hazardous waste disposal sites to “predisposal conditions, to the extent feasible” exceed the enabling authority of Environmental Conservation Law § 27-1313 (5) (d) which provides, in pertinent part, that the goal of a remedial program is “a complete cleanup of the site through the elimination of the significant threat to the environment posed by the disposal of hazardous wastes at the site.” We hold that they do not, and now affirm.

II

It is axiomatic that “an agency’s authority must coincide with its enabling statute” (Matter of New York State Superfund Coalition, 75 NY2d at 92).

“Administrative agencies, as creatures of the Legislature within the executive branch, can act only to implement their charter as it is written and as given to them. An agency cannot create rules, through its own interstitial declaration, that were not contemplated or authorized by the Legislature and thus, in effect, empower themselves to rewrite or add substantially to the administrative charter itself’ (Matter of Tze Chun Liao v New York State Banking Dept., 74 NY2d 505, 510 [1989] [citations omitted]).

That is, we must consider whether the subject regulations have a statutory basis or represent an impermissibly broad exercise of authority by DEC, expanding the power conferred upon it by the Legislature.

Environmental Conservation Law § 27-1313 (5) (d) provides, as relevant here, that

“[t]he goal of any such remedial program shall be a complete cleanup of the site through the elimination of the significant threat to the environment posed by the disposal of hazardous wastes at the site and of the imminent danger of irreversible or irreparable damage to the environment caused by such disposal.”

6 NYCRR 375-2.8 (a), in turn, provides that

“[t]he goal of the remedial program for a specific site is to restore that site to pre-disposal conditions, to the extent feasible. At a minimum, the remedy selected shall eliminate or mitigate all significant threats to the public health and to the environment presented by contaminants disposed at the site.”

And 6 NYCRR 375-1.8 (f) (9) (i), which incorporates the remedial goal stated in 6 NYCRR 375-2.8 (a) into the consideration of land use when implementing a remedial program provides that

“[i]n assessing reasonable certainty [of land use], the Department shall consider:
“(i) the current, intended, and reasonably anticipated future land uses of the site and its surroundings in the selection of the remedy for soil remediation under the brownfield cleanup and environmental restoration programs, and may consider land use in the State superfund program, where cleanup to pre-disposal conditions is determined not feasible.”
“Courts regularly defer to the governmental agency charged with the responsibility for administration of [a] statute in those cases where interpretation or application involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom, and the agency’s interpretation is not irrational or unreasonable” (Matter of Lighthouse Pointe Prop. Assoc. LLC v New York State Dept. of Envtl. Conservation, 14 NY3d 161, 176 [2010] [internal quotation marks omitted]; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]).

However, if

“the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency and its interpretive regulations are therefore to be accorded much less weight. And, of course, if the regulation runs counter to the clear wording of a statutory provision, it should not be accorded any weight” (Matter of Lighthouse Pointe, 14 NY3d at 176).

The Superfund Coalition argues—and the dissent agrees— that a plain reading of section 27-1313 (5) (d) indicates that a “complete cleanup” is effectuated solely through “the elimination of the significant threat to the environment.” In our view, though, this is a strained reading of a statute that on its face tasks the Department with eliminating significant threats while also stating a preference for a more thorough or “complete” cleanup. This reading is consistent with the well-settled rule of statutory construction that “effect and meaning must, if possible, be given to the entire statute and every part and word thereof’ (McKinney’s Cons Laws of NY, Book 1, Statutes § 98; Sanders v Winship, 57 NY2d 391, 396 [1982]).

As an initial matter, we note that section 27-1313 (5) (d), in fact, addresses only those situations where DEC has determined that it is “cost-effective” for the Department itself to develop and implement a remedial program at a site. Put another way, this provision—unlike 6 NYCRR 375-2.8 (a) and 6 NYCRR 375-1.8 (f) (9) (i)—does not apply where, for example, DEC orders a responsible party to implement a remedial program (see ECL 27-1313 [3]); or undertakes a remedial program itself because a responsible party is unwilling or unable to do so, or DEC is unable to timely identify a responsible party (ECL 27-1313 [5] [a], [b], [c]). Notably, the factors to be considered by the Department in determining whether it is “cost-effective” for it to act under ECL 27-1313 (5) (d) in the first place include “the ability of the department to determine, through the exercise of its scientific judgment, whether the elimination of the imminent danger of irreversible or irreparable damage to the environment” posed by the significant threat “can be achieved through limited actionsand “the extent to which” remedial action undertaken by DEC “would reduce such danger to human health or the environment or would otherwise benefit human health or the environment” (ECL 27-1313 [5] [d] [i], [iv] [emphases added]). These factors support our view that the stated goal of a “complete” cleanup under section 27-1313 (5) (d) is aspirational since the statute recognizes that DEC may implement limited actions that reduce rather than completely eliminate dangers.

Our construction of the statute is also consistent with section 27-1301 (3), which defines inactive hazardous waste disposal site remedial programs as including “activities undertaken to eliminate, remove, abate, control or monitor health and/or environmental hazards or potential hazards in connection with inactive hazardous waste disposal sites” (ECL 27-1301 [3] [emphases added]). The Legislature’s express definition of a remedial program, which includes measures of abatement or control in addition to elimination and removal and refers to potential hazards, likewise evinces a preference for the most thorough cleanup that makes sense in light of technical feasibility and cost-effectiveness. Although the Superfund Coalition fears that the regulatory goal for a remedial program of “predisposal conditions, to the extent feasible,” if left in place, would require removal of “every last molecule” of contamination or cleanup to “pre-Columbian environmental quality,” DEC disavows any such intention. Indeed, as the Department points out, technical feasibility and cost-effectiveness bear importantly on remedy selection, as the regulations recognize. For example, a feasibility study may allow a responsible party to prepare a site for a “restricted use” (6 NYCRR 375-2.8 [c]; see also ECL 27-1317 [discussing remedial work plans calling for institutional and engineering controls]).

Thus, while the cleanup of an inactive hazardous waste disposal site is triggered by a finding of a “significant threat,” as discussed in the prior Matter of New York State Superfund Coalition (75 NY2d 88 [1989]) case, that standard does not limit the scope of the ensuing remedial program when a more thorough cleanup is justified. The direction to clean up to “predisposal conditions, to the extent feasible” (6 NYCRR 375-2.8 [a] [emphasis added]) is a shorthand way of saying the same thing and so accords with the aims of article 27, title 13 and the statutory language.

Finally, we note that although the Superfund Coalition refers to DEC’s adoption of the cleanup goal of “pre-disposal conditions, to the extent feasible” as marking a “sea change” in remedy selection, it is not new. The same language has been in DEC’s regulations since 1992. As originally adopted, the regulation stated that the goal of a remedial program was to restore a site to pre-disposal conditions “to the extent feasible and authorized by law” (former 6 NYCRR 375-1.10 [b] [emphasis added]). DEC simply eliminated the phrase “and authorized by law” as surplusage when amending the regulation in 2006. We agree with DEC and the Appellate Division that the omission of the phrase “and authorized by law” makes no substantive change to the cleanup goal.

In sum, there is no discernible difference between the use of the phrase “complete cleanup” in section 27-1313 (5) (d) and “pre-disposal conditions, to the extent feasible” in DEC’s regulations. A remedial program may encompass measures that run a gamut from removal of wastes to institutional controls, implemented to address harms that range from potential to actual hazards. Contrary to the Superfund Coalition’s contention that a standard of “pre-disposal conditions, to the extent feasible” would compel a reversion to pristine environmental conditions, there is no statutory authority, or indication in the regulations that DEC is empowered to arbitrarily fashion a remedial program.

III

Although a remedial program may address a greater number of environmental hazard concerns, the authority of DEC to order remedial programs is not unfettered, as previously indicated. As the Department itself recognizes in its regulations, remedial programs are limited “to the extent feasible” as any remediation would be subject to a number of factors that must be considered in shaping the goals and scope of a program, prior to its implementation.

“In determining the scope, nature and content of such [remedial] program, the department shall consider among others, the following factors:
“(i) the technological feasibility of all actions;
“(ii) the nature of the danger to human health and the environment which the actions are designed to address; and
“(iii) the extent to which the actions would reduce such danger to human health or the environment or would otherwise benefit human health or the environment” (ECU 27-1313 [5] [c]).

Consequently, DEC is not empowered to unilaterally fashion a remedial program without due consideration of the practicalities of such a measure as the statutory scheme expressly ties the scope of such programs to the particular characteristics for each regulated site. Accordingly, the phrase “to the extent feasible” in the DEC regulation is a reasonable incorporation of the considerations within the statute and a limit on the scope of remedial programs.

Further, the Department cannot arbitrarily exercise its authority as the Legislature has provided for a specific process prior to the implementation of any remedial program by which landowners subject to DEC regulation may contest the order of such a measure. First, the issuance of an order directing a remedial program must provide “notice and the opportunity for a hearing” to persons subject to such an order (ECL 27-1313 [4]). Second, any person subject to such an order is entitled to present a defense or comment on the matter. Third, no order shall be issued until a final determination is rendered by the commissioner subsequent to a hearing. Finally, a person subject to an order may challenge it through a CPLR article 78 proceeding within 30 days after the service of an order (see id.).

IV

Pursuant to the statutory scheme of article 27, title 13 of the Environmental Conservation Law, DEC is authorized to identify inactive hazardous waste disposal sites under the “significant threat” standard—i.e., the existence of actual waste on the site. If an actual significant threat is not present, then the site is not subject to remediation. However, if a significant threat has been found and remediation deemed necessary, an appropriately tailored program can be implemented to encompass dangers ranging from potential harms to actual, significant threats as the Legislature has separately defined “remedial program” to permit it to address other harms (ECL 27-1301 [3]). Ultimately, these administrative directives can be constrained by technological feasibility, cost-effectiveness and procedural due process, among other things. Consequently, the challenged DEC regulations, which mirror this statutory scheme, are reasonable interpretations that incorporate the essential goals of the statutes and do not exceed the enabling authority of the legislation with respect to "the cleanup of inactive hazardous waste sites (cf. Matter of Tze Chun Liao, 74 NY2d at 510-511).

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

Pigott, J. (dissenting).

Over 20 years ago, we held that ECL 27-1301 (1) (b) and 27-1313 (3) require the Department of Environmental Conservation (DEC) to demonstrate that hazardous waste constitutes a “significant threat” to the environment before ordering the implementation and development of an “inactive hazardous waste disposal site remedial program,” nullifying a DEC regulation that allowed the DEC to render a “significant threat” determination premised only on the mere presence of hazardous waste on the site (Matter of New York State Superfund Coalition v New York State Dept. of Envtl. Conservation, 75 NY2d 88, 93 [1989]). On this appeal, we address a corollary issue, namely, the breadth of the DEC’s remedial program once the DEC determines that the hazardous waste constitutes a “significant threat” to the environment. Because in my view the regulations in question here exceed the unambiguous directive of ECL 27-1313 (5) (d), I respectfully dissent.

ECL 27-1313 (5) (d) states, in relevant part, that

“the department shall be authorized to develop and implement an inactive hazardous waste disposal site remedial program at the site pursuant to this subdivision if, in the discretion of the department, it is cost-effective for the department to develop and implement such a remedial program. The goal of any such remedial program shall be a complete cleanup of the site through the elimination of the significant threat to the environment posed by the disposal of hazardous wastes at the site and of the imminent danger of irreversible or irreparable damage to the environment caused by such disposal” (emphasis supplied).

Pursuant to this statute, the DEC promulgated 6 NYCRR 375-2.8 (a), which states that

“ft]he goal of the remedial program for a specific site is to restore that site to pre-disposal conditions, to the extent feasible” and that, “fa]t a minimum, the remedy selected shall eliminate or mitigate all significant threats to the public health and to the environment presented by contaminants disposed at the site” (emphasis supplied).

There is nothing ambiguous about ECL 27-1313 (5). (d): the objective of the remedial program is “complete cleanup” of the site, which is met “through the elimination of the significant threat.” Had the Legislature intended to grant the DEC authority to order a “complete cleanup” in the broad manner that the majority claims, then there would have been no need for the inclusion of the limiting clause “through the elimination of the significant threat.” But it is clear from the statutory language that the Legislature intended to limit the reach of the remedial program to the “elimination of the significant threat.” Therefore, 6 NYCRR 375-2.8 (a)’s directive that the remedial program’s goal is to achieve “pre-disposal conditions” not only directly contradicts its enabling statute, thereby entitling the DEC’S “interpretation” of ECL 27-1313 (5) (b) to no weight (see Matter of Lighthouse Pointe Prop. Assoc. LLC v New York State Dept. of Envtl. Conservation, 14 NY3d 161, 176 [2010]), but it also exceeds the powers the Legislature granted to the DEC through ECL 27-1313 (5) (d)’s enactment (see Matter of Tze Chun Liao v New York State Banking Dept., 74 NY2d 505, 510 [1989]).

The cost-effectiveness factors set forth at ECL 27-1313 (5) (d) (i) and (iv) lend no support to the majority’s conclusion that a “complete cleanup,” as they define it, is merely aspirational; the “limited actions” referenced by the majority underscore the Legislature’s intent that a “complete cleanup” is limited to the elimination of the significant threat. For instance, the first cost-effectiveness factor—a scientific determination of “whether the elimination of the imminent danger of irreversible or irreparable damage to the environment can be achieved through limited actions” (ECL 27-1313 [5] [d] [i] [emphasis supplied])—relates back to ECL 27-1313 (5) (d)’s definition of what conditions pose a “significant threat to the environment,” namely, the “disposal of hazardous wastes” and the “imminent danger . . . caused by such disposal.” In other words, the Legislature directed the DEC to conduct a scientific analysis to assess whether the elimination of the significant threat could be achieved with “limited actions,” not, as the majority appears to claim, whether all “insignificant threats” (i.e., those hazardous wastes that do not pose an “imminent danger of irreversible or irreparable damage to the environment”) can be removed. Moreover, the second cost-effectiveness factor cited by the majority— consideration of “the extent to which the actions would reduce such danger to human health or the environment or would otherwise benefit human health or the environment”—cannot be viewed in a vacuum (ECL 27-1313 [5] [d] [iv]). This cost-effectiveness factor, like ECL 27-1313 (5) (d) (i), is one the DEC must take into account in determining whether it would be cost-effective for it to develop an inactive hazardous waste disposal remedial program at the site to eliminate the significant threat, and cannot be interpreted as legislative approval for the institution of a DEC remedial program that extends beyond that objective.

The majority places undue significance on the fact that ECL 27-1301 (3)’s definition of “inactive hazardous waste disposal site remedial program” includes the remediation of “potential hazards” (majority op at 297), as if this demonstrates a legislative intent that such a program may go beyond the elimination of the significant threat. Rather, the broad definition merely

delineates the tools the DEC may use as part of its remedial program; it is not demonstrative of any legislative intent to grant the DEC authority to contravene ECL 27-1313 (5) (d) by allowing it to restore a site to pre-disposal conditions. Indeed, the DEC’s definition of “significant threat” allows the Commissioner to identify potential hazards as a significant threat if “the Commissioner determines that the contaminants disposed at the site or coming from the site result in, or are reasonably foreseeable to result in” any of the “significant adverse impact[s]” or “effects” set forth in 6 NYCRR 375-2.7 (a) (1) (i)(vi) or “significant environmental damage” (6 NYCRR 375-2.7 [a] [1], [2] [emphasis supplied]). Given the DEC’s interpretation that a “significant threat” can encompass potential hazards, i.e., those that are “reasonably foreseeable to result in” certain designated harms, it can hardly be said that the Legislature’s inclusion of the phrase “potential hazards” in ECL 27-1301 (3) was meant to apply to remediation of those wastes that do not pose a “significant threat” to the environment.

Finally, the majority tries to temper its expansive interpretation of ECL 27-1313 (5) (d) and 27-1301 (3) by pointing to 6 NYCRR 375-2.8 (a)’s language that the goal of any remedial program is to restore the site to its pre-disposal condition “to the extent feasible” (majority op at 298). This amorphous language, however, lends little comfort and certainty to actual and prospective owners of such sites, as it is the DEC, and the DEC alone, that will make the determination as to how extensively a site must be remediated and how much money the property owner must expend to return the site to “pre-disposal conditions,” whatever that means. Moreover, DEC’s interpretation of ECL 27-1313 (5) (d) goes beyond what any competent Legislature would permit, and these regulations, as upheld by the majority, codify a questionable policy of imposing upon private landowners the financial burden of eliminating insignificant threats to the environment which, in my view, is hardly a goal that justifies compelling private citizens to expend large sums of money. Had the Legislature intended such a draconian result, it would not have so clearly stated that a “complete cleanup” is one that is achieved “through the elimination of the significant threat,” a directive that, until now, was one that could be easily followed and provided landowners and prospective landowners alike with certainty as to the cost of remediation. Therefore, I would reverse the order of the Appellate Division and grant the petition.

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

Order affirmed, with costs.

      . “Inactive hazardous waste disposal site means any area or structure used for the long term storage or final placement of hazardous waste including, but not limited to, dumps, landfills, lagoons and artificial treatment ponds, as to which area or structure no permit or authorization issued by the department or a federal agency for the disposal of hazardous waste was in effect after the effective date of this title and any inactive area or structure on the National Priorities List established under the authority of 42 U.S.C.A. Section 9605” (ECL 27-1301 [2]).

      . Supreme Court also annulled 6 NYCRR 375-2.2 (i) (7), but that regulation is not at issue on this appeal.

      . The other challenged regulation, 6 NYCRR 375-1.8 (f) (9) (i), incorporates the term “pre-disposal conditions.”

      . An “inactive hazardous waste disposal site remedial program” is defined, as
      “activities undertaken to eliminate, remove, abate, control or monitor health and/or environmental hazards or potential hazards in connection with inactive hazardous waste disposal sites or to treat or dispose of wastes and waste contaminated materials from such sites including, but not limited to, grading, contouring, trenching, grouting, capping, excavation, transporting, incineration, chemical treatment, biological treatment or construction of leachate collection and treatment facilities.”