author: G.B. Smith, J. Ciparick, J. Graffeo, J.

text:
    [852 NE2d 1163, 819 NYS2d 691]
    The People of the State of New York, Respondent, v Larry Feingold, Appellant.
    Argued June 7, 2006;
    decided July 5, 2006

      POINTS OF COUNSEL

      Rochman Platzer Fallick Sternheim Luca & Pearl, LLP, New York City (Jillian S. Harrington, Barry M. Fallick and Irwin Rochman of counsel), for appellant.
    The phrase “under circumstances evincing a depraved indifference to human life” as used in both the depraved indifference murder section and the reckless endangerment in the first-degree section of the Penal Law should be given the same meaning. (People v Suarez, 6 NY3d 202; People v Bolden, 81 NY2d 146; People v Register, 60 NY2d 270; People v Sanchez, 98 NY2d 373.)

      Robert M. Morgenthau, District Attorney, New York City (Patricia Curran and Michael S. Morgan of counsel), for respondent.
    Defendant’s guilt was proved beyond a reasonable doubt. (People v Suarez, 6 NY3d 202; People v Register, 60 NY2d 270; People v Gray, 86 NY2d 10; People v Santos, 86 NY2d 869; People v Finger, 95 NY2d 894; People v Hines, 97 NY2d 56; People v Acosta, 80 NY2d 665; People v Tejeda, 73 NY2d 958; People v Contes, 60 NY2d 620; People v Kennedy, 47 NY2d 196.)
   OPINION OF THE COURT

G.B. Smith, J.

Defendant was convicted, after a nonjury trial, of reckless endangerment in the first degree in violation of Penal Law § 120.25. Because the verdict, as enunciated by the trial judge and affirmed by the Appellate Division, does not conform to this Court’s precedents, we modify by reducing the conviction to reckless endangerment in the second degree.

Facts

In February 2003 the 52-year-old defendant, an attorney working as an administrative law judge, attempted suicide in his 12th floor Manhattan apartment. Sealing the apartment door with tape, he blew out the pilot lights of his stove, turned on the gas, took tranquilizers and fell asleep in front of the oven, expecting the gas to kill him. Several hours later, a spark, apparently from the refrigerator compressor, ignited the gas, causing an explosion that wrecked the walls of his apartment and heavily damaged a number of neighboring apartments.

No one else was seriously injured and defendant himself survived. He was charged with first-degree reckless endangerment pursuant to Penal Law § 120.25, which provides that a person violates the statute “when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.”

Supreme Court found, in a nonjury trial, that defendant’s state of mind was not one of depraved indifference but nevertheless, relying on People v Register (60 NY2d 270 [1983]), found him guilty and sentenced him to five years’ probation. The Appellate Division affirmed, and a Judge of this Court granted defendant leave to appeal.

Discussion

The People first contend that defendant’s argument that depraved indifference is a mens rea is unpreserved because he did not plainly present it to the trial court. The trial judge’s decision, however, demonstrates that he specifically confronted and resolved this issue. Under these circumstances, we conclude that the preservation was adequate (People v Prado, 4 NY3d 725 [2004]).

To begin with, there is no dispute that the term “depraved indifference” has the same meaning in both the depraved indifference murder statute and the reckless endangerment statute. Defendant wishes this Court to say that the trial court should have viewed defendant’s conduct with a subjective eye where the defendant must “evince a wicked and mischievous disregard (i.e., utter indifference) for the near certain consequences of his . . . irresponsible act.” Defendant argues that under this test, depraved indifference was not established — and indeed ruled out by the factfinder — and therefore his conviction should be reversed.

The People rely on Register, asserting that depraved indifference refers not to the mens rea or the actus reus of the crime but to the “factual setting in which the risk creating conduct must occur.” In People v Register, after a night of drinking, defendant shot a man fatally for no explained reason. Defendant was acquitted of intentional murder but convicted of depraved indifference murder. In a 4-3 decision, a majority of this Court concluded that the Legislature did not intend that a mens rea element beyond mere recklessness be included in the definition of depraved indifference murder. “The concept of depraved indifference was retained in the new statute [adopted in 1965] not to function as a mens rea element, but to objectively define the circumstances which must exist to elevate a homicide from manslaughter to murder” (People v Register, 60 NY2d at 278). The three dissenters, however, contended that the predecessor statutes to Penal Law § 125.25 (2) defined depraved indifference as a mens rea and that depraved mind and depraved indifference “connote a culpable mental state” (60 NY2d at 282).

In People v Sanchez (98 NY2d 373 [2002]), the jury found the defendant not guilty of intentional murder but guilty of depraved indifference murder. The deceased and the defendant had previously been friends, and the shooting occurred after an argument erupted on the day of the shooting. Relying on People v Register, the majority of a divided court concluded that although the gun had been fired at point-blank range, it was fired at an angle, the shooting was instantaneous and impulsive, and the jury could have concluded that “defendant’s homicidal level of mental culpability was reckless rather than intentional” (98 NY2d at 378). In dissent, Judge G.B. Smith stated, “To uphold the conviction of depraved indifference murder in this case is to authorize the substitution of depraved indifference murder for intentional murder at any time that a person shoots and kills another” (98 NY2d at 393). Also in dissent, Judge Rosenblatt stated that “by holding the facts at hand sufficient to establish depraved indifference murder, the majority leaves no conceivable circumstances under which a charge of intentional murder will not be amenable to a conviction for depraved indifference murder” (98 NY2d at 394). Judge Rosenblatt added:

“Register dealt chiefly with the defense of intoxication, but ironically, the case has served as the fulcrum for what has become a steadily growing prosecutorial practice of charging defendants with depraved indifference murder as a companion count to intentional murder. The Register majority brushed aside the dissenters’ prediction that the decision would ‘result in wholesale depraved mind murder prosecutions for what are essentially intentional murders’ .... That prediction proved prescient, however, as revealed by the enormous growth in depraved indifference murder companion counts post -Register” (98 NY2d at 398).

After Register and Sanchez, and beginning in 2003, a number of decisions by this Court have pointed the law in a different direction. In People v Hafeez (100 NY2d 253 [2003]), after a jury found defendant not guilty of intentional murder but guilty of depraved indifference murder, the Appellate Division held that the evidence was insufficient for depraved indifference murder and this Court agreed. The evidence was that months after an unsuccessful confrontation with the deceased, the defendant and codefendant lay in wait for the deceased, and the codefendant stabbed him to death with a knife. Defendant was convicted of depraved indifference murder under an accomplice liability theory. We stated that:

“[t]o meet their burden for depraved indifference murder, the People must show that defendant’s acts were ‘imminently dangerous and presented a very high risk of death to others’ .... Here the actions of both defendants were focused on first isolating, and then intentionally injuring, the victim. From this record there exists no valid line of reasoning that could support a jury’s conclusion that defendant possessed the mental culpability required for depraved indifference murder” (100 NY2d at 259).

In a concurrence, Judge Rosenblatt said that “the Court is limiting Sanchez by properly rejecting the incongruous notion that an intentional killing can reflect depraved indifference,” and indicated that “the critical element in depraved indifference murder is not recklessness, but depraved indifference” (100 NY2d at 260).

In People v Gonzalez (1 NY3d 464 [2004]), after a jury found the defendant not guilty of intentional murder but guilty of depraved indifference murder, this Court determined that a defendant could not be convicted of depraved indifference murder where a defendant first shot the deceased in the chest from a distance of six to seven feet, then shot him in the head as he fell to the floor and shot him eight more times as he lay on the floor. We concluded that the evidence indicated only an intentional murder. We stated:

“Depraved indifference murder differs from intentional murder in that it results not from a specific, conscious intent to cause death, but from an indifference to or disregard of the risks attending defendant’s conduct. . .
“Depraved indifference murder does not mean an extremely, even heinously, intentional killing. Rather, it involves a killing in which the defendant does not have a conscious objective to cause death but instead is recklessly indifferent, depravedly so, to whether death occurs” (1 NY3d at 467-468).

In People v Payne (3 NY3d 266 [2004]), after a jury had acquitted the defendant of intentional murder but convicted him of depraved indifference murder, this Court held that defendant could not be found guilty of depraved indifference murder. There, a 20-year friendship between the defendant and the deceased was strained after the deceased was arrested and accused of sexually abusing an eight-year-old playmate of defendant’s daughter. The defendant went to the home of the deceased and shot him in the chest with a 12-gauge “elephant” shotgun. We stated, “As the drafters of the Penal Law put it, depraved indifference murder is ‘extremely dangerous and fatal conduct performed without specific homicidal intent but with a depraved kind of wantonness: for example, shooting into a crowd, placing a time bomb in a public place, or opening the door of the lions’ cage in the zoo’ ” (3 NY3d at 272). In Payne, we stressed that such “[indifference to the victim’s life . . . contrasts with the intent to take it” (3 NY3d at 270; see also Gonzalez, 1 NY3d at 467; Hafeez, 100 NY2d at 258-259).

Finally, in People v Suarez (6 NY3d 202 [2005]), the jury acquitted defendant of intentional murder but found him guilty of depraved indifference murder. The defendant had stabbed his girlfriend in the throat, the chest and the abdomen and left her to bleed to death. In People v McPherson, decided with Suarez, defendant was charged only with depraved indifference murder and first-degree manslaughter. She was convicted of depraved indifference murder. There, the defendant had stabbed the deceased with a knife and left him to die. This Court concluded that rarely can depraved indifference murder apply to the killing of a single victim. In a concurrence, three Judges of this Court indicated that they would “explicitly” overrule People v Register and People v Sanchez (id. at 217 [G.B. Smith, Rosenblatt and R.S. Smith, JJ., concurring]). Another Judge concurred on constraint of our decisions in Hafeez and Payne (id. at 219 [Read, J., concurring]). While the Suarez court did not explicitly overrule Register and Sanchez, we conclude that the law has changed to such an extent that People v Register and People v Sanchez should no longer be followed.

We say today explicitly what the Court in Suarez stopped short of saying: depraved indifference to human life is a culpable mental state. Our dissenting colleagues contend that this final step in the overruling of Register is unwarranted and unnecessary. Perhaps we would agree with that were it not for the setting in which the present case comes to us. In earlier cases (Hafeez, Gonzalez, Payne, Suarez), we reversed depraved indifference murder convictions without having to discuss explicitly the question of mens rea. It was enough to say — and we said it repeatedly — that those defendants did not commit depraved indifference murder because depravity or indifference was lacking.

Beginning with Hafeez, the Register/Sanchez rationale was progressively weakened so that it would no longer support most depraved indifference murder convictions, particularly one-on-one shootings or stabbings. Indeed, Judge Read, in her concurrences in Suarez and McPherson, said that the results were compelled by Hafeez and Payne.

In Suarez, it was not necessary for us to state explicitly whether depraved indifference is a mental state (mens rea). In the case before us, however, the trial judge rendered his verdict in a way that requires us to address directly the question of mens rea.

Here, defendant might well he said to have acted with the mens rea of depraved indifference had the factfinder simply announced a guilty verdict. Viewing the evidence in the light most favorable to the People, we could properly have affirmed the conviction, concluding that the factfinder inferred that defendant had the requisite mental state (depraved indifference). But the verdict does not allow that to happen here. Here, the trial judge said he would have acquitted defendant of first-degree reckless endangerment but felt himself prohibited by Register from doing so. The Appellate Division ignored the trial judge’s findings and affirmed, citing Register. Given the trial judge’s findings, we cannot affirm the conviction because we cannot conceive that a person may be guilty of a depraved indifference crime without being depravedly indifferent. When a jury (or here, the court at a bench trial) pointedly says that defendant was not depravedly indifferent, it is not our place to say that he was.

In Suarez, we could readily hold that under any view of the evidence Suarez’s acts did not amount to depraved indifference. The case before us is different. The factfinder here went out of his way to explain that

“[t]his defendant was a plainly depressed individual, who committed an extremely reckless and foolish act not because of his lack of regard for the lives of others but because of his focus upon his troubles and himself. While being reckless, the defendant’s state of mind was not one of extreme wickedness, or abject moral deficiency, or a mischievous disregard for the near certain consequences of his irresponsible act.”

Thus, the factfinder actually pronounced defendant innocent of the core criminal element, depraved indifference. The dissenters protest this, but their objection is more properly directed against the verdict than against the law. That a large number of people were endangered does not mean that defendant was depravedly indifferent, particularly when the factfinder went to great pains to say the opposite.

We regard this as a juridical imperative, much the same as in any analogous situation. A person accused of stealing may be guilty of larceny, but a guilty verdict may not stand if the jury finds in a special verdict that the defendant did not intend to take anything. So, too, a person may not be said to have acted with the mens rea of depraved indifference when the jury (or court as factfinder) tells us that he was not depravedly indifferent.

In short, we do not say that someone who endangers others by turning on the gas jets may never be found guilty of a depraved indifference crime. Here, however, because the fact-finder told us that defendant was not depravedly indifferent, he cannot be properly convicted of first-degree reckless endangerment.

While our dissenting colleagues rely primarily on Suarez, we are unable to read Suarez as they do. We disagree with the Chief Judge’s suggestion that the per curiam opinion in Suarez “decided the question” (at 302) by declining the suggestion of the concurrence to overrule Register and Sanchez. The three authors of the concurrence also signed the per curiam opinion and did not think that they were deciding the question contrary to their own views. The difference between the per curiam and the concurrence in Suarez was over whether to recognize “explicitly” that Register and Sanchez had been de facto overruled in prior cases. To the extent that the per curiam opinion may have left that question in doubt, the doubt is now removed.

We agree with the statement in Judge Ciparick’s dissent that Suarez correctly states the law in saying that “depraved indifference is best understood as an utter disregard for the value of human life — a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not” (at 298). We also accept Judge Ciparick’s statement, paraphrasing Suarez, that “a depraved and utterly indifferent actor is someone who does not care if another is injured or killed” (id.). To us, however, the words “utter disregard,” “willingness,” and “does not care” can only describe a state of mind. We thus confirm what is implicit in the line of cases from Hafeez to Suarez. This Court has adopted the view of the Register and Sanchez dissents that “depraved indifference to human fife” is a culpable mental state.

Our holding today will not, as the Chief Judge fears, prevent depraved indifference murder convictions in cases where they are warranted. The mens rea of depraved indifference to human life can, like any other mens rea, be proved by circumstantial evidence. We agree that the Chief Judge’s hypothetical — “a person boarded an empty train car and, in order to commit suicide, derailed the train, thereby killing passengers in other cars” — states a “quintessential” case of depraved indifference murder, because in that case the circumstantial proof of depraved indifference would be compelling (at 303). The Chief Judge suggests it is almost equally compelling here — and, indeed, perhaps a reasonable factfinder could infer depraved indifference from these facts. But the factfinder in this case did not.

Accordingly, the order of the Appellate Division should be modified by reducing defendant’s conviction to reckless endangerment in the second degree and remitting to Supreme Court for resentencing and, as so modified, affirmed.

Ciparick, J.

(dissenting). Because I believe that our very recent holding in People v Suarez (6 NY3d 202 [2005]) compels a different result, I respectfully dissent.

Viewing the evidence in the light most favorable to the People, as we must, a rational trier of fact could reasonably find, beyond a reasonable doubt, the essential elements of the crime of reckless endangerment in the first degree in this case. Reckless endangerment in the first degree “seeks to prevent and criminalize the risk alone created by an actor’s conduct” as opposed to proscribing “a particular resulting outcome or injury” (People v Chrysler, 85 NY2d 413, 415 [1995]; see also People v Davis, 72 NY2d 32, 36 [1988]). In a prosecution for first-degree reckless endangerment two elements must be proven: first that defendant recklessly engaged in conduct that created a grave risk of death to another person, and second that the defendant did so under circumstances evincing a depraved indifference to human life.

Both parties agree that our precedents construing the phrase “circumstances evincing a depraved indifference to human life” as applied to depraved indifference murder are applicable to the crime of reckless endangerment in the first degree. Even giving the same meaning to the phrase “under circumstances evincing a depraved indifference to human life” as used in both the depraved indifference murder statute and the reckless endangerment in the first-degree statute, defendant’s conviction should be upheld, as nothing in our precedents requires the imposition of a separate culpable mental state — mens rea — to the element of depraved indifference to human life.

In Suarez, we made “clear that depraved indifference is best understood as an utter disregard for the value of human life — a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not” (6 NY3d at 214). Stated differently, a depraved and utterly indifferent actor is someone who does not care if another is injured or killed by his or her extremely dangerous acts, and the failure to give even a thought to such potential harm in the first place can, in and of itself, establish the depraved indifference element of the statute. By requiring a separate mens rea for this second element the majority today has overruled People v Register (60 NY2d 270 [1983]), People v Sanchez (98 NY2d 373 [2002]) and to a certain extent People v Suarez (6 NY3d 202 [2005]), as well as case law dealing with the crime of first-degree reckless endangerment (see e.g. People v Lynch, 95 NY2d 243 [2000]; People v Chrysler, 85 NY2d 413 [1995]; People v Davis, 72 NY2d 32 [1988]).

In Suarez we stated that depraved indifference reflects “wickedness, evil or inhumanity, as manifested by brutal, heinous and despicable acts” (6 NY3d at 214 [emphasis added]). A violent explosion in a heavily populated multiple-residence apartment building is a brutal, heinous and despicable act, and one who causes such act exhibits wickedness, evil and inhumanity.

There is no need that a defendant subjectively harbor a “wicked” or “evil” mind, as now required by the majority. Purposefully turning on the gas and creating such an explosion in an occupied apartment building — for whatever reason, here in an attempt to commit suicide — is “ ‘so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy’ as to render the actor as culpable as one whose conscious objective is to [cause injury to others]” (Suarez, 6 NY3d at 214, quoting People v Russell, 91 NY2d 280, 287 [1998]). Defendant’s acts in creating an explosive gas environment evince a depraved disregard for the nearly certain consequences of his irresponsible acts. That defendant was focused on his troubles and himself does not render his actions any less irresponsible nor should it provide immunity from prosecution for a felony charge. Conduct evincing depraved indifference to human life is not excusable because defendant’s mind was elsewhere or because he turned a blind eye to the potential danger.

Only six months ago in Suarez, we “departed] slightly from the Register formulation” only to make clear that the “additional requirement of depraved indifference has meaning independent of the gravity of the risk” (6 NY3d at 215). In defining the second element of depraved indifference murder, we did not, however, create a separate mens rea requiring an analysis of a defendant’s subjective intent. The gravity of risk was created by defendant’s act of flooding his apartment with gas and turning it into a bomb that needed only an ignition source. It was not necessary for the People to prove that in addition to the extremely reckless nature of defendant’s conduct, he acted with an “ ‘uncommonly evil and morally perverse frame of mind’ ” (Sanchez, 98 NY2d at 383, quoting 98 NY2d at 396 [Rosenblatt, J., dissenting]). When viewed objectively, defendant manifested “an utter disregard for the value of human life” (Suarez, 6 NY3d at 214).

We have identified several quintessential examples of conduct — rare circumstances — evincing depraved indifference to human life, among them the placing of a time bomb in a public place (see Suarez, 6 NY3d at 214). So too the situation here is so inherently dangerous to the lives of others that it should be likewise classified as one of those rare circumstances demonstrating such an utter disregard for the lives of others evincing an actor’s depraved indifference to human life.

I would thus affirm the conviction and hold as the Appellate Division, not on the strength of Register but on the teachings of Suarez, that “[r]eckless endangerment does not require a showing of extreme wickedness or abject moral deficiency on the part of the perpetrator” (People v Feingold, 22 AD3d 242 [1st Dept 2005], citing People v Narimanbekov, 258 AD2d 417 [1st Dept 1999]). It is sufficient that the defendant recklessly engaged in conduct which created a grave risk of death to others and that this defendant did so under circumstances evincing a depraved indifference to human life as we defined it in Suarez.

Furthermore, this construction is in keeping with the plain language of the statute and its legislative intent. Here the Legislature used the term “recklessly” to define the mens rea element of first-degree reckless endangerment (see Penal Law § 15.05 [3]; § 120.25). A defendant thus must act “recklessly.” The additional element that this reckless conduct must be committed “under circumstances evincing a depraved indifference to human life” (Penal Law § 120.25) refers not to a mental state but to the factual circumstances under which the crime occurred (when viewed objectively) evincing a depraved indifference to human life. The Legislature was free to retain the old “depraved mind” language but chose to forgo that in favor of a requirement of indifference (see Suarez, 6 NY3d at 210 n 4).

Lastly, there is no question here that defendant acted extremely recklessly, as even Supreme Court opined. Its further assessment of defendant’s subjective mental state was totally irrelevant. As the trial judge noted, he was expressing a “concern” and would have acquitted defendant if the law was as stated in the dissenting opinions of Register and Sanchez. His expression of concern does not require us to address directly the question of mens rea, as the majority believes it does (majority op at 294). Certainly a trial judge is free to say what he or she believes the law should be but is nonetheless bound to apply the law as it is. We would expect no less from a jury, which is free to privately disagree with the law but is bound to accept it as charged by the judge. The judge here was not required to go beyond his verdict of guilty.

Accordingly, I would affirm the order below.

Chief Judge Kaye (dissenting). I join fully in Judge Ciparick’s dissent. I write separately in light of the majority’s decision to overrule People v Register (60 NY2d 270 [1983]), in which I had joined. That extraordinary step is neither necessary, nor warranted, in this case.

Over the years, we have had a number of occasions to revisit Register, most recently in People v Suarez (6 NY3d 202 [2005]), barely six months ago. In Suarez this Court, in a per curiam opinion, “ depart [ed] slightly” from the Register formulation by making clear “that the additional requirement of depraved indifference has meaning independent of the gravity of the risk” (6 NY3d at 215). We did not, however, retreat from a core holding of Register — that the requirement that a defendant act “under circumstances evincing a depraved indifference to human life” does not constitute a mental state.

As we explained in Suarez, there was good reason for our slight departure from Register. Experience had shown that the fine distinction between the “substantial” risk required to prove manslaughter in the second degree and the “very substantial” risk necessary to elevate the offense to depraved indifference murder had provided “insufficient guidance to prosecutors, courts and juries struggling to distinguish between these very different crimes” (6 NY3d at 215). Further, the proliferation of twin-count indictments alternatively charging defendants who had killed in the course of routine one-on-one confrontations with inconsistent theories had, over time, come to blur the distinction between intentional and depraved indifference murder. At least one federal court had expressed the view that the depraved indifference murder statute had become unconstitutionally vague (see Jones v Keane, 2002 US Dist LEXIS 27418 [US Dist Ct, SD NY, June 6, 2002], revd on other grounds 329 F3d 290 [2d Cir 2003]; St. Helen v Senkowski, 2003 US Dist LEXIS 26642 [US Dist Ct, SD NY, Sept. 19, 2003], revd on other grounds 374 F3d 181 [2d Cir 2004]).

In addressing these concerns, we made clear that depraved indifference “is best understood as an utter disregard for the value of human life — a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not” (6 NY3d at 214). “[M]anifested by brutal, heinous and despicable acts, depraved indifference is embodied in conduct that is so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to render the actor as culpable as one whose conscious objective is to kill” {id. [internal quotation marks and citations omitted]). Although three concurring Judges expressed a desire to overrule Register, the Court in Suarez decided the question by declining to take that step. Nothing has changed in the intervening weeks to warrant such action now. Certainly we have seen no evidence that the careful medicine administered in Suarez has failed to cure any perceived problems — indeed, it has scarcely had time to take effect.

The rule currently in place, though it may not be that favored by today’s majority, is susceptible of ready application, and results in no injustice. Indeed, it is far more workable than the rule the majority adopts today, as evidenced by the case at hand.

Defendant, so focused on his desire to take his own life that (we are asked to believe) he gave no thought whatsoever to the life or safety of others, recklessly caused a massive explosion by leaving on the gas jets in a densely occupied residential apartment building in the midst of Manhattan. Miraculously, no one was killed or injured. Both parties agree that the phrase “under circumstances evincing a depraved indifference to human life” must have the same meaning for purposes of the murder statute and the reckless endangerment statute, charged here. That being so, the majority would necessarily hold that this defendant could not have been convicted of depraved indifference murder even if hundreds of people had been killed by the explosion he so recklessly and wantonly caused. I cannot agree.

To my mind, defendant’s extremely reckless conduct squarely evinced “an utter disregard for the value of human life — a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not” (Suarez, 6 NY3d at 214). The majority would limit this level of disregard for the lives or safety of others to circumstances where the defendant consciously has in mind the likelihood of injury to innocent persons and nevertheless deliberately chooses to proceed with the dangerous course of conduct.

While I agree that depraved indifference includes these situations, I fail to understand why it must be restricted to such cases. In my view, “utter indifference” to human life easily covers instances in which a person undertaking a mortal act fails to consider the potential impact on his or her neighbors. Indeed, the failure to be at all concerned with the lives of others is the very epitome of depraved indifference, regardless of whether such utter indifference arises from a malicious wickedness toward humanity or, as here, a complete unmindfulness of one’s fellows born of total self-absorption.

In People v Payne (3 NY3d 266 [2004]), this Court identified two “species” of depraved indifference — one involving acts directed against a particular victim, “marked by uncommon brutality” but without an intent to kill; the other involving defendants who, “lacking the intent to kill (but oblivious to the consequences and with depraved indifference to human life) shoot[ ] into a crowd or otherwise endanger[ ] innocent bystanders” (3 NY3d at 271). The instant case fits squarely within this second category, which we have never before felt the need to restrict. Rather, in Suarez, where we carefully delineated the rare circumstances in which a one-on-one confrontation might properly result in depraved indifference murder, we noted that the 1 £ [quintessential examples” of depraved indifference involve situations in which more than one person is endangered (Suarez, 6 NY3d at 214).

By definition, depraved indifference murder can be found only where there is not an intent to kill. Its starting point is an unintentional killing. Thus, whatever underlying motive a defendant may have with respect to some goal unrelated to the ultimate victims of his actions, it is the conduct itself that demonstrates depraved indifference. Plainly, if a person boarded an empty train car and, in order to commit suicide, derailed the train, thereby killing passengers in other cars, there would be a quintessential depraved indifference murder. The case before us is no different.

If a defendant means to hurt someone, a finding of depraved indifference is precluded (see Suarez, 6 NY3d 202 [2005]; Payne, 3 NY3d 266 [2004]; People v Gonzalez, 1 NY3d 464 [2004]; People v Hafeez, 100 NY2d 253 [2003]). But if, as here, he succeeds in persuading a trier of fact that he didn’t mean to hurt anyone, the Court also forecloses his conviction of any crime requiring a showing of depraved indifference. Legally sufficient evidence of depraved indifference cannot be rendered insufficient by a defendant’s mere denial of guilt of the charged crime — that is, by a claim that “I didn’t mean to hurt anyone; I never thought about whether anyone else might be in danger.”

While defendant’s denial that he considered his neighbors, if believed by the factfinder, would absolve him of culpability for intentional homicide, it is the very proof of his depraved indifference. A person living in a multiple-residence apartment building who is about to engage in mortally dangerous conduct should give thought to those who might be around him — whether in the same apartment, in the building or in the area. Regardless of whether it simply didn’t occur to defendant to think about others — or whether he did give a thought to their safety but just didn’t care — either way he evinced a depraved indifference to human life. For this he was convicted of a felony and sentenced to five years’ probation. The majority concludes, however, that defendant’s perilous acts made him culpable of no more than reckless endangerment in the second degree — a misdemeanor.

Contrary to the majority, the factfinder here did not find defendant “innocent of the core criminal element, depraved indifference” (majority op at 295 [emphasis deleted]). Rather, the factfinder simply believed that “defendant’s state of mind was not one of extreme wickedness, or abject moral deficiency, or a mischievous disregard for the near certain consequences of his irresponsible act.” But until today, such moral deficiency was not the test of depraved indifference. In other words, it does not matter that the trial judge believed that defendant would not have been guilty of a differently defined crime. Under Register, as well as Suarez, defendant’s subjective mental state with respect to his potential victims was irrelevant. The People did not need to prove, as opined by the trial judge, that defendant acted “because of his lack of regard for the lives of others” (emphasis added), but merely that he acted with such disregard.

Finally, the Court’s limitation on depraved indifference is not restricted to cases involving one-on-one confrontations. Rather, prosecution for the second “species” of depraved indifference— that in which multiple persons are endangered — will now also be foreclosed by a defendant’s claim (if believed) that he or she didn’t mean it. The majority today leaves nothing of depraved indifference but a risk for prosecutors in charging these offenses.

Graffeo, J.

(dissenting). I continue to believe that People v Suarez (6 NY3d 202 [2005]) was wrongly decided since it deviated significantly from People v Sanchez (98 NY2d 373 [2002]) (see People v Suarez, 6 NY3d at 219 [Graffeo, J., concurring in part and dissenting in part]). Because the majority in this case goes further and overrules Sanchez, I agree with my dissenting colleagues that today’s transformation of the well-settled meaning of “depraved indifference” from an objective factual assessment into a subjective mens rea requirement cannot be reconciled with the language of the reckless endangerment statute or the prior rationale of this Court (see People v Suarez, 6 NY3d at 219-228 [Graffeo, J., concurring in part and dissenting in part]). That being said, my dissenting colleagues have cogently explained why the facts of this case fit within the depraved indifference jurisprudence discussed in Suarez (see id. at 214) and defendant’s conviction should be affirmed on this basis alone.

Judges Rosenblatt, Read and R.S. Smith concur with Judge G.B. Smith; Judge Ciparick dissents and votes to affirm in an opinion in which Chief Judge Kaye concurs; Chief Judge Kaye dissents in another opinion; Judge Graffeo dissents and votes to affirm in a separate opinion.

Order modified, etc.

      . Identical language is contained in the depraved indifference murder statute, Penal Law § 125.25 (2), which reads: “A person is guilty of murder in the second degree when ... 2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

      . Contrary to what Judge Ciparick’s dissent may suggest, we do not overrule “case law dealing with the crime of first-degree reckless endangerment” (at 298). We overrule, by implication, only those depraved indifference reckless endangerment cases that rest on the premise that depraved indifference is measured not by a culpable mental state but by an objective assessment of the risk involved. Further, we reject Judge Ciparick’s assertion that we have overruled Suarez. We have, however defined depraved indifference as a culpable mental state — a point not definitively addressed in Suarez.

      . Penal Law § 120.20 reads, “A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.”

      . “A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person” (Penal Law § 120.25).

      . Penal Law § 15.05 (3) defines “recklessly” as follows:
      “A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

      . Penal Law § 120.20 defines reckless endangerment in the second degree as when a person “recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.” This crime is a class A misdemeanor.

      . Certainly the per curiam opinion in Suarez represented “the concurrence of four . . . necessary to a decision” (NY Const, art VI, § 2 [a]). The majority did not implicitly or “explicitly” overrule Register and Sanchez, nor had they been “de facto overruled in prior cases” (majority op at 296). The concurrence of three in Suarez would have preferred that result, and achieves it here.

      . The abuses that we have sought to correct — the prosecution of twin-count indictments under both intentional and depraved indifference theories — are not present here. I see no need to go beyond what we held in Suarez to expand the definitional scope of depraved indifference by holding that proof of depraved indifference now requires an assessment of defendant’s subjective intent, especially in a case involving multiple potential victims.

      . Even the smell of gas in a residence should precipitate some investigation because danger is obvious.

      . Of course, reckless endangerment in the first degree, like depraved indifference murder, also requires recklessness, which involves the conscious disregard of a known risk (see Penal Law § 15.05 [3]). Defendant does not contend that the trial proof was insufficient to establish the element of recklessness, and the trier of fact expressly found that defendant committed “an extremely reckless and foolish act.”


source: Caselaw Access Project

author: R.S. Smith, J.

license: Public Domain

text:
    [854 NE2d 464, 821 NYS2d 142]
    In the Matter of John L. Eadie et al., Appellants, v Town Board of the Town of North Greenbush et al., Respondents.
    Argued June 8, 2006;
    decided July 5, 2006

      POINTS OF COUNSEL

      Law Office of Marc S. Gerstman, Albany (Marc S. Gerstman of counsel), for appellants.
    I. Appellants timely commenced their challenge to respondent Town Board of the Town of North Greenbush’s compliance with the State Environmental Quality Review Act conducted in connection with the legislative act of rezoning. (Matter of Village of Westbury v Department of Transp. of State of N.Y., 75 NY2d 62; Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30; Matter of Essex County v Zagata, 91 NY2d 447; Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Matter of Long Is. Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 78 NY2d 608; Matter of Young v Board of Trustees of Vil. of Blasdell, 89 NY2d 846; Matter of Haggerty v Planning Bd. of Town of Sand Lake, 79 NY2d 784; Stop-The-Barge v Cahill, 1 NY3d 218; Matter of City of Saratoga Springs v Zoning Bd. of Appeals of Town of Wilton, 279 AD2d 756; Matter of Gordon v Rush, 100 NY2d 236.) II. The Town Board of the Town of North Green-bush improperly disregarded the legal effect of the protest petition filed in accordance with Town Law § 265. (Webster Assoc. v Town of Webster, 119 Misc 2d 533; 208 E. 30th St. Corp. v Town of N. Salem, 88 AD2d 281; Matter of Biedermann v Town of Orangetown, 125 AD2d 465; Matter of Smidt v McKee, 262 NY 373.) III. Respondent Town Board of the Town of North Green-bush violated the State Environmental Quality Review Act by failing to require a supplemental environmental impact statement and failing to mitigate cumulative adverse traffic impacts. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Town of Henrietta v Department of Envtl. Conservation of State of N.Y., 76 AD2d 215.)

      Joshua A. Sabo, Town Attorney, Wynantskill, for Town Board of the Town of North Greenbush, respondent.
    I. Petitioners’ State Environmental Quality Review Act challenge is not time-barred. (Stop-The-Barge v Cahill, 1 NY3d 218; Matter of Essex County v Zagata, 91 NY2d 447.) II. Town Law § 265 (1) does not allow the creation of artificial buffer zones to prevent the filing of supermajority protest petitions. (Lawrence Constr. Corp. v State of New York, 293 NY 634; Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86; Rosner v Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577.)

      Mandel Clemente, PC., North Greenbush (Linda A. Mandel Clemente of counsel), and Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, Albany (.David C. Brennan of counsel), for Planning Board of the Town of North Greenbush, respondent.
    I. Petitioners’ State Environmental Quality Review Act claims are barred by the applicable statute of limitations. (Stop-The-Barge v Cahill, 1 NY3d 218; Matter of Essex County v Zagata, 91 NY2d 447; Matter of McNeill v Town Bd. of Town of Ithaca, 260 AD2d 829; Matter of City of Saratoga Springs v Zoning Bd. of Appeals of Town of Wilton, 279 AD2d 756; Town of Red Hook v Dutchess County Resource Recovery Agency, 146 Misc 2d 723.) II. Petitioners have failed to name necessary and indispensable parties. (Matter of Manupella v Troy City Zoning Bd. of Appeals, 272 AD2d 761; Matter of Amodeo v Town Bd. of Town of Marlborough, 249 AD2d 882; Matter of O’Connell v Zoning Bd. of Appeals of Town of New Scotland, 267 AD2d 742, 94 NY2d 938; Matter of Van Derwerker v Village of Kinderhook Zoning Bd. of Appeals, 295 AD2d 676; Matter of Llana v Town of Pittstown, 245 AD2d 968, 91 NY2d 812; Sisters of Resurrection, N.Y. v Country Horizons, 257 AD2d 729; Matter of Basha Kill Area Assn. v Town Bd. of Town of Mamakating, 302 AD2d 662; Matter of Chalian v Malone, 307 AD2d 619; Matter of Cassidy v New York City Dept. of Correction, 95 AD2d 733; Matter of Martin v Ronan, 47 NY2d 486.) III. The lower court erred in granting a preliminary injunction. (Doe v Axelrod, 73 NY2d 748; Peterson v Corbin, 275 AD2d 35, 95 NY2d 919; J.S. Anand Corp. v Aviel Enters., 148 AD2d 496; Board of Mgrs., Artist Lake Condominium v Rios, 166 Misc 2d 381; Armbruster v Gipp, 103 AD2d 1014.) IV The lower court erred in failing to disqualify petitioners’ counsel as disqualification is mandatory under Code of Professional Responsibility DR 5-108 (a) and DR 5-105 (d) (22 NYCRR 1200.27 [a]; 1200.24 [d]). (Kassis v Teacher’s Ins. & Annuity Assn., 93 NY2d 611; Cardinale v Golinello, 43 NY2d 288; Solow v Grace & Co., 83 NY2d 303.)

      Stockli Greene & Slevin, LLP, Albany {Mary Elizabeth Slevin of counsel), for John Gallogly and another, respondents.
    I. Petitioners’ claims under the State Environmental Quality Review Act must be dismissed as barred by the statute of limitations. (Stop-The-Barge v Cahill, 1 NY3d 218; Matter of McNeill v Town Bd. of Town of Ithaca, 260 AD2d 829; Matter of City of Saratoga Springs v Zoning Bd. of Appeals of Town of Wilton, 279 AD2d 756; Matter of Young v Board of Trustees of Vil. of Blasdell, 89 NY2d 846; Matter of Long Is. Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 78 NY2d 608; Matter of Village of Westbury v Department of Transp. of State of N.Y., 75 NY2d 62; Matter of Sterling Basin Neighborhood Assn. v Planning Bd. of Vil. of (Greenport, 10 Misc 3d 1069[A], 2005 NY Slip Op 52192[U]; Matter of Long Is. Contractors’ Assn. v Town of Riverhead, 17 AD3d 590; Matter of Metropolitan Museum Historic Dist. Coalition v De Montebello, 3 Misc 3d 1109LA], 2004 NY Slip Op 50527[U], 20 AD3d 28.) II. This proceeding should be dismissed for failure to timely join Albany Associates, Cumberland Farms, and Van Rensselaer Square, LLC, all necessary parties. (Matter of Defreestville Area Neighborhood Assn., Inc. v Planning Bd. of Town of N. Greenbush, 16 AD3d 715; Matter of Marin v Board of Elections of State of N.Y., 111 AD2d 489; Mondello v New York Blood Ctr.— Greater N.Y. Blood Program, 80 NY2d 219; Matter of Basha Kill Area Assn. v Town Bd. of Town of Mamakating, 302 AD2d 662; Matter of Spence v Cahill, 300 AD2d 992; Matter of Chalian v Malone, 307 AD2d 619; Matter of Cuyle v Town Bd. of Town of Oxford, 301 AD2d 838; Matter of Amodeo v Town Bd. of Town of Marlborough, 249 AD2d 882; Matter of Manupella v Troy City Zoning Bd. of Appeals, 272 AD2d 761; Matter of Save the Woods & Wetlands Assn. v Village of New Paltz Planning Bd., 296 AD2d 679.) III. Petitioners did not present a valid protest petition. (Ryan Homes, Inc. v Town Bd. of Town of Mendon, 7 Misc 3d 709; Matter of Van Patten v La Porta, 148 AD2d 858; Bismark v Incorporated Vil. of Bayville, 21 AD2d 797; Matter of Jalowiec v Reile, 61 Misc 2d 909; Matter of Biedermann v Town of Orangetown, 125 AD2d 465; Matter of Hittl v Buckhout, 13 Misc 2d 230, 10 AD2d 719; Webster Assoc. v Town of Webster, 119 Misc 2d 533; Matter of Smidt v McKee, 262 NY 373.) IV The Town Board of the Town of North Greenbush properly conducted the State Environmental Quality Review Act review for the generic environmental impact statement. (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400; Matter of Town of Henrietta v Department of Envtl. Conservation of State of N.Y., 76 AD2d 215; Matter of Orchards Assoc. v Planning Bd. of Town of N. Salem, 114 AD2d 850; Matter of Merson v McNally, 90 NY2d 742; Matter of Byer v Town of Poestenkill, 232 AD2d 851; Matter of Argyle Conservation League v Town of Argyle, 223 AD2d 796; Matter of Croton Watershed Clean Water Coalition Inc. v Planning Bd. of Town of Southeast, 5 Misc 3d 1010[A], 2004 NY Slip Op 51312[U]; Akpan v Koch, 75 NY2d 561; Matter of Neville v Koch, 79 NY2d 416; Matter of Danyla v Town Bd. of Town of Florida, 259 AD2d 850.)

      Eliot Spitzer, Attorney General, Albany (Caitlin J. Halligan, Daniel Smirlock, Denise Hartman, Peter H. Lehner, John J. Sipos, Lisa M. Burianek and Philip M. Bein of counsel), for State of New York, amicus curiae.
    I. Appellants’ petition was timely because the limitations period ran from the Town Board of Town of North Greenbush’s enactment of the rezoning law. (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Matter of Young v Board of Trustees of Vil. of Blasdell, 89 NY2d 846; Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30; Matter of Essex County v Zagata, 91 NY2d 447; Stop-The-Barge v Cahill, 1 NY3d 218; Matter of Town of Yorktown v New York State Dept. of Mental Hygiene, 59 NY2d 999; Matter of Long Is. Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 78 NY2d 608; Matter of City of New York [Grand Lafayette Props LLC], 6 NY3d 540; Ecology Action v Van Cort, 99 Misc 2d 664; Roosevelt Islanders for Responsible Southtown Dev. v Roosevelt Is. Operating Corp., 291 AD2d 40.) II. Nothing in Stop-The-Barge v Cahill (1 NY3d 218 [2003]) renders appellants’ petition untimely. (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193; Matter of Town of Yorktown v New York State Dept. of Mental Hygiene, 59 NY2d 999; Matter of Long Is. Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 78 NY2d 608; Matter of Village of Westbury v Department of Transp. of State of N.Y., 75 NY2d 62; Matter of Metropolitan Museum Historic Dist. Coalition v De Montebello, 20 AD3d 28; Matter of Essex County v Zagata, 91 NY2d 447; Matter of State of N.Y. Northeastern Queens Nature & Historical Preserve Commn. v Flacke, 89 AD2d 928; Town of Red Hook v Dutchess County Resource Recovery Agency, 146 Misc 2d 723; Village of Skaneateles v Board of Educ. of Skaneateles Cent. School Dist., 180 Misc 2d 591; Matter of Wing v Coyne, 129 AD2d 213.) III. This Court should clarify the limited reach of Stop-The-Barge v Cahill (1 NY3d 218 [2003]). (Uhlfelder v Weinshall, 10 Misc 3d 151; Matter of Sterling Basin Neighborhood Assn. v Planning Bd. of Vil. of Greenport, 10 Misc 3d 1069[A], 2005 NY Slip Op 52192[U]; Matter of Monteiro v Town of Colonie, 158 AD2d 246; Matter of McNeill v Town Bd. of Town of Ithaca, 260 AD2d 829; Matter of Long Is. Contractors’ Assn. v

      Town of Riverhead, 17 AD3d 590; Matter of Entergy Nuclear Indian Point 2 v New York State Dept. of Envtl. Conservation, 3 Misc 3d 1070; Matter of Kuzma v City of Buffalo, 11 Misc 3d 1061 [A], 2006 NY Slip Op 50338DJ]; Matter of Merson v McNally, 90 NY2d 742; Abrams v Love Canal Area Revitalization Agency, 134 AD2d 885.)
   OPINION OF THE COURT

R.S. Smith, J.

The Town of North Greenbush has rezoned a large area of land to permit retail development. Petitioners seek to annul the rezoning. The case raises these three issues:

1. Did the rezoning require a three-fourths majority vote of the Town Board under Town Law § 265 (1)? We hold that it did not, because the petition that sought to require a supermajority vote was not signed, as section 265 (1) requires, by the owners of 20% of the land within 100 feet of the land included in the rezoning. The 100 feet must be measured from the boundary of the rezoned area, not from the boundary line of the property in which the rezoned area is located.

2. Was petitioners’ challenge to the rezoning under the State Environmental Quality Review Act (SEQRA) timely brought? We hold that it was, because in this case the statute of limitations ran from the adoption of the rezoning, not from the earlier completion of the SEQRA process.

3. Did the Town comply with SEQRA? We hold that it did.

Facts and Procedural History

In September 2003, the Town released a draft generic environmental impact statement (DGEIS), prepared pursuant to SEQRA to address a proposed area-wide rezoning of many parcels of land located near the intersection of routes 4 and 43. The rezoning had been requested by landowners, including John and Thomas Gallogly, who wanted to build retail stores on their property. Retail development was not permitted by the then-existing zoning.

The DGEIS is a document of more than 200 pages with lengthy appendices. One section of the document discusses traffic; that section says that an “access management plan” will be needed, but describes only in general terms what the plan will contain. “Access management,” as we understand it from the parties’ presentations, involves planning for the entry and exit of traffic on major roads in such a way as to keep interference with traffic flow to a minimum.

After public hearings and written comments, the Town adopted a final generic environmental impact statement (GEIS) on March 25, 2004. Responding to comments urging the development of an access management plan, the Town included such a plan in the final GEIS, proposing to construct several access roads and other improvements, and describing proposed allocations of costs and sources of funding for this construction. The final GEIS did not specify the timing of the proposed improvements.

After another comment period, the Town took the last step in the SEQRA process by adopting a findings statement on April 28, 2004. The findings statement approved a project that included the rezoning of a number of parcels. It described proposed “mitigation measures,” including those contained in its access management plan, but said that “[t]he timing of the improvements is beyond the scope of this GEIS,” noting that “the Town cannot logistically or accurately determine at this time which parcels will be developed and when.”

On May 4, 2004, the Town Board held a public hearing on the proposed zoning change at which petitioners, opponents of the change, presented a protest petition pursuant to Town Law § 265 (1). The petition, if effective, would have required a three-quarters vote of the Town Board to approve the rezoning. Petitioners claim the protest was effective, because it was signed by owners of more than 20% of the land located within 100 feet of the parcels affected by the rezoning, as shown by the Town’s tax map. However, not all the land contained in the tax map parcels was affected by the rezoning; some of the land owned by the Galloglys was not rezoned. A “buffer zone” between 200 and 400 feet wide was left between the rezoned portion of the Galloglys’ property and the property line. Measuring from the boundary of the rezoned area, the Town determined that petitioners did not own 20% of the land within 100 feet, and that their protest petition was therefore invalid. On May 13, 2004, the Town Board passed the rezoning by a vote of three to two.

On September 10, 2004 — more than four months after the SEQRA process was completed, but less than four months after the rezoning was enacted — petitioners began this proceeding under CPLR article 78 against the Town Board, the Planning Board of the Town and the Galloglys. The petition contained five causes of action, one alleging that the rezoning was not lawfully enacted because it required a supermajority vote and four under SEQRA, two of which have now been abandoned. The remaining SEQRA claims were related to the access management plan in the GEIS. Petitioners asserted that the Town’s proposed mitigation efforts were “vague [and] discretionary” and therefore inadequate and that its “proposed changes to the transportation infrastructure” required preparation of a supplemental GEIS.

Supreme Court denied motions to dismiss the proceedings on statute of limitations and necessary-party grounds, and granted petitioners a preliminary injunction. In a later order, Supreme Court granted the article 78 petition and annulled the rezoning on the basis of petitioners’ Town Law § 265 (1) claim. The Appellate Division reversed and dismissed the petition, holding that the protest petition was insufficient under Town Law § 265 (1) (b); that petitioners’ SEQRA claims were barred by the statute of limitations; and that the SEQRA claims in any event lacked merit. We now affirm the Appellate Division’s order, although we disagree with its statute of limitations holding, the first of its two alternative grounds for dismissing the SEQRA claims.

Discussion

I

Under Town Law § 265 (1), zoning regulations may be amended “by a simple majority vote of the town board, except that any such amendment shall require the approval of at least three-fourths of the members of the town board” in certain circumstances. Petitioners here rely on Town Law § 265 (1) (b), which requires a supermajority vote where the zoning change is the subject of a written protest presented to the Town Board and signed by “the owners of twenty percent or more of the area of land immediately adjacent to that land included in such proposed change, extending one hundred feet therefrom.”

We conclude, as did the Appellate Division, that the “one hundred feet” must be measured from the boundary of the rezoned area, not the parcel of which the rezoned area is a part. The language of the statute, on its face, points to that result: “land included in such proposed change” can hardly be read to refer to land to which the proposed zoning change is inapplicable.

Fairness and predictability point in the same direction. The interpretation we adopt is fair, because it makes the power to require a supermajority vote dependent on the distance of one’s property from land that will actually be affected by the change. Petitioners complain that this allows landowners who obtain rezoning to insulate themselves against protest petitions by “buffer zoning” — i.e., leaving the zoning of a strip of property unchanged, as occurred with the Galloglys’ property here. But we see nothing wrong with this. The whole point of the “one hundred feet” requirement is that, where a buffer of that distance or more exists, neighbors beyond the buffer zone are not entitled to force a supermajority vote. If we adopted petitioners’ interpretation, such a vote could be compelled by property owners within 100 feet of the boundary of even a very large parcel — though these owners might be far away from any land that would be rezoned.

The interpretation we adopt also makes the operation of the statute more predictable. We see no reason why the right to compel a supermajority vote should change when the boundaries between parcels change — i.e., when parcels are merged or subdivided. Indeed, in this case, petitioners accuse the Galloglys of deeding property to themselves in order to create two parcels and invalidate the protest petition. Whether that was their original intention or not, the Galloglys now argue, and we agree, that such a reconfiguration of property lines, whether done in good faith or bad faith, should have no impact on the Town Law § 265 (1) (b) issue.

Measurement from the boundary of the rezoned area — so-called “buffer zoning” — has been upheld in a New York Supreme Court case (Ryan Homes, Inc. v Town Bd. of Town of Mendon, 7 Misc 3d 709, 712-714 [Sup Ct, Monroe County 2005]) and in several decisions in other states: Pfaff v City of Lakewood (712 P2d 1041, 1043 [Colo App 1985]); Midway Protective League v City of Dallas (552 SW2d 170, 174 [Tex Ct Civ App 1977]); St. Bede’s Episcopal Church v City of Santa Fe (85 NM 109, 110, 509 P2d 876, 877 [1973]); Rodgers v Village of Menomonee Falls (55 Wis 2d 563, 569-570, 201 NW2d 29, 33 [1972]); and Heaton v City of Charlotte (277 NC 506, 525-528, 178 SE2d 352, 364-366 [1971]).

Petitioners rely on Herrington v County of Peoria (11 Ill App 3d 7, 295 NE2d 729 [1973]), but that case is distinguishable; it did not involve a statute that required measurement of a distance from the land included in the proposed zoning change. The statute in Herrington provided for a protest petition by “the owners of twenty percent of the frontage directly opposite the frontage proposed to be altered” (11 Ill App 3d at 9, 295 NE2d at 730; cf. Town Law § 265 [1] [c]). The holding of Herrington is that the purpose of such a statute cannot be avoided by refraining from rezoning a few feet or inches next to the frontage of the rezoned parcel. The Herrington court distinguished Heaton, the North Carolina case we cited above, saying that the statute in Heaton (which resembles Town Law § 265 [1] [b]) “appears to have been considered by the court as a legislative declaration, that ‘one hundred feet’ was a legally sanctioned buffer or barrier insulating the property from the claims of protesters” (11 Ill App 3d at 13, 295 NE2d at 733). We think that the Illinois court correctly characterized the North Carolina’s court’s interpretation of its statute, and we interpret our statute in the same way.

II

An article 78 proceeding brought to review a determination by a body or officer “must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner” (CPLR 217 [1]). We have held that this time period begins to run when the petitioner has “suffered a concrete injury not amenable to further administrative review and corrective action” (Matter of City of New York [Grand Lafayette Props. LLC], 6 NY3d 540, 548 [2006]; see also Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34 [2005]). The issue to be decided here is whether petitioners suffered “concrete injury” from the alleged SEQRA violations on April 28, 2004, when the SEQRA process culminated in the issuing of a findings statement, as the Appellate Division held; or on May 13, 2004, when the Town Board enacted the rezoning, as Supreme Court held. We conclude that no concrete injury was inflicted until the rezoning was enacted, and that therefore petitioners’ SEQRA claims were timely brought.

In Matter of Save the Pine Bush v City of Albany (70 NY2d 193, 200 [1987]), we held “that a proceeding alleging SEQRA violations in the enactment of legislation must be commenced within four months of the date of enactment of the ordinance.” The Town Planning Board argues that Save the Pine Bush is “no longer good law,” and that under Stop-The-Barge v Cahill (1 NY3d 218 [2003]) the statute runs from the end of the SE-QRA process. Stop-The-Barge, however, is distinguishable.

In that case, the petitioners challenged a conditioned negative declaration (CND) issued under SEQRA by the Department of Environmental Protection (DEP), determining that a project for the installation of a power generator on a barge would have no significant adverse impact on the environment. After DEP’s issuance of the CND completed the SEQRA process, the proponent of the project obtained an air permit from another agency. We held that a challenge to DEP’s determination of no adverse impact must be brought within four months of the CND, not the later issuance of the air permit.

Stop-The-Barge does not control this case because it did not involve “the enactment of legislation,” as Save the Pine Bush did and this case does; and also because in Stop-The-Barge the completion of the SEQRA process was the last action taken by the agency whose determination petitioners challenged. Any injury to the petitioner that DEP inflicted was concrete when the CND was issued. It did not depend on the future passage of legislation, and it was not subject to review or corrective action by DEE

Here, petitioners suffered no concrete injury until the Town Board approved the rezoning. Until that happened, their injury was only contingent; they would have suffered no injury at all if they had succeeded in defeating the rezoning through a valid protest petition, or by persuading one more member of the Town Board to vote their way.

We thus reaffirm the holding of Save the Pine Bush, and make clear that an article 78 proceeding brought to annul a zoning change may be commenced within four months of the time the change is adopted. This does not mean that, in every case where a SEQRA process precedes a rezoning, the statute of limitations runs from the latter event, for in some cases it may be the SE-QRA process, not the rezoning, that inflicts the injury of which the petitioner complains. This might be a different case if, for example, the Galloglys or others were contending that mitigation measures required by the final GEIS and adopted in the findings statement unlawfully burdened their right to develop their property. In that hypothetical case, the injury complained of would not be a consequence of the rezoning, but of the SE-QRA process, and it would make little sense either to require or to permit the person injured to await the enactment of zoning changes before bringing a proceeding. But that is not the case before us: these petitioners are complaining about the zoning change.

We thus agree with Supreme Court on the statute of limitations issue. We also agree with Supreme Court on an issue the Appellate Division did not reach: the necessary-parties defense asserted by the Town and the Galloglys is without merit. We must therefore address the substance of petitioners’ surviving SEQRA claims.

Ill

Petitioners complain of two alleged SEQRA violations. First, they argue that the Town has not adequately mitigated the adverse effects on traffic, identified in the DGEIS and the final GEIS, that will result from the rezoning. While the final GEIS describes the improvements that the access management plan will entail, petitioners say the Town has “failed to enact the mechanism” — meaning, apparently, that the Town has not committed itself to undertake specific mitigating measures on a firm schedule. Secondly, petitioners argue that the access management plan so changes the proposed action in question that a supplemental environmental impact statement (SEIS) should have been prepared before the rezoning was adopted. In both of these contentions, the petitioners essentially ask us to substitute our judgment for that of the Town’s governing body. This we may not do.

Where an agency has followed the procedures required by SEQRA, a court’s review of the substance of the agency’s determination is limited. The question is “whether the agency identified the relevant areas of environmental concern, took a ‘hard look’ at them, and made a ‘reasoned elaboration’ of the basis for its determination” (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986]). The agency’s “substantive obligations under SEQRA must be viewed in light of a rule of reason” and agencies have “considerable latitude in evaluating environmental effects and choosing among alternatives” (id.). Also, “[t]he degree of detail with which each alternative must be discussed will . . . vary with the circumstances and nature of each proposal” (Webster Assoc. v Town of Webster, 59 NY2d 220, 228 [1983]). Here, the DGEIS, the final GEIS and the findings statement show that the Town took a “hard look” at the traffic problems that could be anticipated from its proposed rezoning. The Town’s explanations of its proposed courses of action are well within a rule of reason. Specifically, there is nothing unreasonable about the Town’s comment, in its findings statement, that a more precise plan for traffic mitigation was impractical until the Town could know “which parcels will be developed and when.”

The document in question here is a generic environmental impact statement. Department of Environmental Conservation regulations permit a GEIS to be used to assess the environmental impacts of “an entire program or plan having wide application or restricting the range of future alternative policies or projects, including new or significant changes to . . . zoning regulations” (6 NYCRR 617.10 [a] [4]). The regulations provide that “[gjeneric EISs may be broader, and more general than site or project specific EISs” (6 NYCRR 617.10 [a]). There is no merit to petitioners’ contention that the Town violated SEQRA by failing, as part of approval of an “entire program or plan,” to commit with greater specificity to some details of access management.

Nor was the Town required under SEQRA to prepare an SEIS before adopting the rezoning. DEC regulations state that, where a GEIS is used, an SEIS must be prepared in connection with a “subsequent proposed action” that was “not addressed or was not adequately addressed” in the GEIS (6 NYCRR 617.10 [d] [4]). But the regulations do not say or imply that every possible subsequent action must be analyzed in an SEIS before a “program or plan having wide application” is adopted. It was for the Town to decide, subject to a rule of reason, how detailed an analysis to perform, before rezoning was enacted, of all projects that might result from it. The Town’s decision that the analysis in its final GEIS was adequate was not arbitrary and capricious.

IV

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

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

Order affirmed, with costs.