author: Smith, J.

text:
    [871 NE2d 537, 840 NYS2d 1]
    In the Matter of Carmine Polito et al., Appellants, v John P. Walsh, as Supreme Court Justice, et al., Respondents.
    Argued May 29, 2007;
    decided June 28, 2007

      POINTS OF COUNSEL

      White & White, New York City (Diarmuid, White and Brendan White of counsel), and Gerald J. McMahon for Carmine Polito, appellant.
    Since the state crime of murder in the second degree is a lesser included offense of the federal crime of murder in aid of racketeering, they are the “same offense” and the petitioners may not be twice prosecuted for the murder. (People v Biggs, 1 NY3d 225; Brown v Ohio, 432 US 161; Burks v United States, 437 US 1; Harris v Oklahoma, 433 US 682; Blockburger v United States, 284 US 299; People v Rivera, 60 NY2d 110; Matter of Abraham v Justices of N.Y. Supreme Ct. of Bronx County, 37 NY2d 560; People v Glover, 57 NY2d 61; People v Okafore, 72 NY2d 81; Matter of Johnson v Morgenthau, 69 NY2d 148.)

      Stillman, Friedman & Shechtman, PC., New York City (Paul Shechtman and Nathaniel Z. Marmur of counsel), for Mario Fortunato, appellant.
    New York’s double jeopardy statute prohibits Mr. Fortunato from being prosecuted on the state murder charge. (People v Abbamonte, 43 NY2d 74; Matter of Booth v Clary, 83 NY2d 675; Matter of Corbin v Hillery, 74 NY2d 279, affd sub nom. Grady v Corbin, 495 US 508; Blockburger v United States, 284 US 299; Brown v Ohio, 432 US 161; In re Nielsen, 131 US 176; Harris v Oklahoma, 433 US 682; Illinois v Vitale, 447 US 410; United States v Hatchett, 245 F3d 625; Whalen v United States, 445 US 684.)

      Charles J. Hynes, District Attorney, Brooklyn (Ann Bordley and Leonard Joblove of counsel), for respondents.
    The Appellate Division properly denied the petition for a writ of prohibition, because the trial of the petitioners for murder will not violate Criminal Procedure Law § 40.20 (1). (Matter of Holtzman v Goldman, 71 NY2d 564; Matter of Rush v Mordue, 68 NY2d 348; Matter of Klein v Murtagh, 34 NY2d 988; United States v Concepcion, 983 F2d 369, 510 US 856; United States v Carrillo, 229 F3d 177; United States v Fernandez, 388 F3d 1199, 544 US 1009; United States v Bracy, 67 F3d 1421; United States v Bruno, 383 F3d 65; Matter of Schmidt v Roberts, 74 NY2d 513; Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98.)
   OPINION OF THE COURT

Smith, J.

Petitioners were prosecuted in federal court for murder in aid of racketeering. A jury convicted them, but a federal Court of Appeals reversed the conviction and dismissed the charge because the Government had failed to prove the “aid of racketeering” element of the crime. A New York grand jury then indicted petitioners for murder.

Petitioners brought this proceeding to prohibit the state-court prosecution, claiming that it violates CPL 40.20 (1), one of New York’s double jeopardy statutes. We hold that the statute has not been violated.

Facts and Procedural History

Petitioners were indicted by a United States grand jury on eight counts growing out of a shooting in which Sabatino Lombardi was killed and Michael D’Urso was wounded. The Government claimed that petitioners had hired hit men to kill Lombardi and D’Urso, and that in the case of Lombardi the hit men had succeeded. The count of the indictment with which we are now concerned, captioned “Murder in Aid of Racketeering,” alleged that petitioners had murdered Lombardi; that they had done so “for the purpose of gaining entrance to and maintaining and increasing position in the Genovese family”; that the Genovese family was “an enterprise engaged in racketeering activities”; and that petitioners had therefore violated 18 USC § 1959 (a), titled “Violent crimes in aid of racketeering activity” (VCAR), which provides federal criminal punishment for anyone who: “for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders . . . any individual in violation of the laws of any State.”

Petitioners were convicted after a jury trial in the United States District Court for the Eastern District of New York, but the United States Court of Appeals for the Second Circuit reversed and ordered the VCAR charge dismissed (United States v Bruno, 383 F3d 65 [2d Cir 2004]). The gist of the Second Circuit’s opinion, as it affects our case, is that, while the evidence showed some connections between petitioners and the Genovese family, it did not show that the murder of Lombardi was intended to enhance their positions in the organization. Rather, the evidence suggested that petitioners arranged the shooting of Lombardi and D’Urso out of personal hatred and to avoid the repayment of gambling debts.

After the Second Circuit decision, a state grand jury indicted petitioners for Lombardi’s murder. Petitioners then brought this CPLR article 78 proceeding in the Appellate Division, seeking a writ of prohibition against the state prosecution. The Appellate Division denied the petition and dismissed the proceeding. We granted leave to appeal, and now affirm.

Discussion

Petitioners do not claim that their prosecution for murder violates their constitutional rights. As they recognize, under the so-called “dual sovereignty” doctrine, the Double Jeopardy Clause of the United States Constitution does not prohibit successive federal and state prosecutions for the same conduct (Bartkus v Illinois, 359 US 121 [1959]). Nor do petitioners rely on the State Constitution’s Double Jeopardy Clause (NY Const, art I, § 6). But in New York, protection against double jeopardy is statutory as well as constitutional.

The double jeopardy statute, CPL 40.20, has two subdivisions. Subdivision (1) says simply: “A person may not be twice prosecuted for the same offense.” Subdivision (2) is less simple. It says, “A person may not be separately prosecuted for two offenses based upon the same act or criminal transaction,” but these words are followed by the word “unless” and a list of eight exceptions. One of the exceptions is applicable here. CPL 40.20 (2) (f) excludes from the prohibition of section 40.20 (2) cases where:

“One of the offenses consists of a violation of a statutory provision of another jurisdiction, which offense has been prosecuted in such other jurisdiction and has there been terminated by a court order expressly founded upon insufficiency of evidence to establish some element of such offense which is not an element of the other offense, defined by the laws of this state.”

Here, the first prosecution of petitioners was for “a violation of a statutory provision of another jurisdiction,” the VCAR statute; petitioners were prosecuted for it in “such other jurisdiction” — i.e., in federal court; the federal prosecution was terminated by the Second Circuit’s order; that order was “expressly founded upon insufficiency of evidence” to establish the “aid of racketeering” element of the offense; and aid of racketeering is not an element of murder, the crime for which petitioners are now being prosecuted in New York. CPL 40.20 (2) (f) was evidently written for the purpose of preventing people in the exact situation of these petitioners from relying on the protection given by CPL 40.20 (2).

Petitioners do not contest this, and do not rely on CPL 40.20 (2). But they say that they are protected by CPL 40.20 (1), because the federal VCAR prosecution and the state murder prosecution are “for the same offense” within the meaning of that statute — and CPL 40.20 (1) has no exceptions.

The result petitioners seek is counterintuitive. It seems highly unlikely that the Legislature would have gone to the trouble of writing CPL 40.20 (2) (f) to strip people like petitioners of double jeopardy protection, if the same protection were conferred by CPL 40.20 (1). Analysis confirms that “same offense” in CPL 40.20 (1) does not have the broad meaning petitioners would give it.

“Offense” is defined in CPL 40.10 (1): “An ‘offense’ is committed whenever any conduct is performed which violates a statutory provision defining an offense; and when the same conduct or criminal transaction violates two or more such statutory provisions each such violation constitutes a separate and distinct offense.” Thus, the meaning of “offense” in the Criminal Procedure Law is very narrow. The same act constitutes two offenses if it violates two statutory provisions. If “offense” is read in accord with the statutory definition, CPL 40.20 (1) prohibits only prosecuting the same person twice under the same statute for the same act, and does not help petitioners here.

We held in Matter of Klein v Murtagh (34 NY2d 988 [1974], affg on op below 44 AD2d 465 [2d Dept 1974]) that CPL 40.10 (l)’s narrow definition of “offense” applies to CPL 40.20 (l)’s double jeopardy provision. The Appellate Division opinion in Klein, which we adopted, rejected a double jeopardy claim by a petitioner, who, like petitioners here, was prosecuted first in federal and then state court for the same conduct; and who, again like petitioners here, had prevailed in federal court because of the Government’s failure to establish “the ‘Federal’ element of the crime charged” (44 AD2d at 467). The Appellate Division said:

“The petitioners and the intervenor contend in this court that to permit the State prosecution to continue will subject them to a second prosecution for the ‘same offense’ in violation of. . . CPL 40.20. This is not so ... . Subdivision 1 of CPL 40.20 prescribes the New York double jeopardy doctrine in its purest and simplest form. It states that ‘a person may not be twice prosecuted for the same offense.’ This means the same in both fact and law .... In subdivision 1 of CPL 40.10 the term ‘offense’ is defined as ‘committed whenever any conduct is performed which violates a statutory provision defining an offense; and when the same conduct or criminal transaction violates two or more such statutory provisions each such violation constitutes a separate and distinct offense.’
“At bar, the prosecutions are not the same in law because they are based upon separate and distinct statutes . . . .” (Id.)

Petitioners argue that, notwithstanding CPL 40.10 (1) and our holding in Klein, “offense” in CPL 40.20 (1) cannot be given its narrow statutory definition. They point out that the words “same offence” appear in the Double Jeopardy Clause of the Fifth Amendment (“nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”), and that their meaning in that context has long been established. Under Blockburger v United States (284 US 299, 304 [1932]), “the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

Under the Blockburger test, petitioners argue, the two offenses for which petitioners have been prosecuted are the same because, while the VCAR statute does require proof of facts (the “aid of racketeering” element) that New York’s murder statute does not, the reverse is not true; to prove petitioners guilty of VCAR, the federal prosecutors had to prove every element of the New York crime of murder. And, petitioners’ argument continues, if the two offenses are the same under the Blockburger test they must also be the same within the meaning of CPL 40.20 (1), for the authors of that statute, in using the same words as the Constitution, could not have meant to give less protection than the Constitution gives.

Petitioners distinguish Klein on the ground that the two offenses at issue there were not the same under the Block-burger test; each required proof of an element that the other did not. And petitioners suggest that the statutory definition in CPL 40.10 (1) could not have been intended to define “same offense” for double jeopardy purposes — even though the double jeopardy provisions are in the very next section. The word “offense” appears in many provisions of the Criminal Procedure Law, and the statutory definition of the term works in most or all of those contexts — but, petitioners say, it simply does not work when applied to the words “same offense” in CPL 40.20 (1).

Admittedly, it seems odd to hold that a statute tracking constitutional language gives less protection than the Constitution. But the People say that, odd or not, that is what CPL 40.10 (1) says and that is what Klein holds. And, the People add, that creates no constitutional problem because whatever constitutional protection is withheld by CPL 40.20 (1) is conferred by CPL 40.20 (2), so the statutes in combination give at least as much protection as the Constitution. On the other hand, several commentators have suggested that CPL 40.20 (1) and the constitutional double jeopardy protection are coextensive (Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11 A, CPL 40.20 [“(s)ubdivision 1 of this section states the pure and simple constitutional prohibition against double jeopardy ‘for the same offense’ (U.S. Const, amend. V; N.Y. Const. Art. 1, § 6)”]; Marks et al., New York Pretrial Criminal Procedure § 2.5, at 66 [7 West’s NY Prac Series] [“(t)he ‘same offense’ provisions essentially subsume the federal constitutional rule, which is known colloquially as the ‘Blockburger’ test”]; Seeliger, 1997-98 Survey of New York Law, Criminal Procedure, 49 Syracuse L Rev 377, 382 n 32 [1999] [“CPL 40.20 (1) codifies the constitutional prohibition against double jeopardy”]).

Whether CPL 40.20 (1) is narrower than, or identical in coverage to, constitutional double jeopardy protection is an interesting question, but we do not need to resolve it in this case, because neither answer to the question helps petitioners. As we have pointed out, petitioners do not claim that their constitutional rights are violated by the prosecution they seek to prohibit. They can prevail under CPL 40.20 (1) only if that statute provides more protection than the United States Constitution. More specifically, they must persuade us that CPL 40.20 (1) incorporates the constitutional definition of “same offense” as reflected in Blockburger, but that it does not incorporate the dual sovereignty limitation on the constitutional protection reflected in Bartkus. Nothing in the statute’s language, context or apparent purpose supports this reading of CPL 40.20 (1).

However, petitioners do find, in comments made in some of our decisions, support for the idea that CPL 40.20 (1) rejects the dual sovereignty rule. In Matter of Abraham v Justices of N.Y. Supreme Ct. of Bronx County (37 NY2d 560, 565 [1975]), we said that CPL 40.20 (1) codified the rule of several earlier cases, including People v Lo Cicero (14 NY2d 374 [1964]); Lo Cicero, decided before CPL 40.20 was enacted, rejected the dual sovereignty doctrine under New York law. In Matter of Booth v Clary (83 NY2d 675, 679 [1994]) we cited CPL 40.20 (1) as reflecting the “intricate details” of New York’s rather broad statutory double jeopardy protections. And in People v Rivera (60 NY2d 110, 114 [1983]), we again cited CPL 40.20 (1) in a similar context.

Our remarks in Abraham, Booth and Rivera were not necessary to our holdings in those cases. We now conclude that they require clarification, if not correction. New York does indeed have relatively broad statutory protection against double jeopardy, and our statutory law does reject, in large part, the dual sovereignty doctrine. To the extent our protections go beyond those afforded by the State or Federal Constitution, however, they are to be found in CPL 40.20 (2), not CPL 40.20 (1). CPL 40.20 (1) provides, at most, no more double jeopardy protection than the Constitutions do. We therefore reject petitioners’ claim that CPL 40.20 (1) bars their prosecution in this case.

Accordingly, the judgment of the Appellate Division should be affirmed, without costs.

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

Judgment affirmed, without costs.


source: Caselaw Access Project

author: Chief Judge Kaye.

license: Public Domain

text:
    [872 NE2d 848, 840 NYS2d 736]
    The People of the State of New York, Appellant, v Vincent Litto, Respondent.
    Argued May 30, 2007;
    decided June 27, 2007

      POINTS OF COUNSEL

      Charles J. Hynes, District Attorney, Brooklyn (Ann Bordley and Leonard Joblove of counsel), for appellant.
    I. Vehicle and Traffic Law § 1192 (3) applies to drivers whose intoxication was caused by a substance other than alcohol. (People v Finnegan, 85 NY2d 53, 516 US 919; Majewski v Broadalbin-Perth Cent. School Dist, 91 NY2d 577; Matter of Polan v State of N.Y. Ins. Dept., 3 NY3d 54; Matter of Theroux v Reilly, 1 NY3d 232; People v Robinson, 95 NY2d 179; Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98; Matter of Excellus Health Plan v Serio, 2 NY3d 166; Matter of Orens v Novello, 99 NY2d 180; People v Cruz, 48 NY2d 419; Otero v Town of Southampton, 194 F Supp 2d 167.) II. The evidence before the grand jury was legally sufficient to establish defendant’s guilt of driving while intoxicated and vehicular manslaughter in the second degree. (People v Bello, 92 NY2d 523; People v Deegan, 69 NY2d 976; People v Jennings, 69 NY2d 103; People v Owens, 271 AD2d 621; People v D’Amico, 138 AD2d 503.)

      Anthony M. Bramante, Brooklyn, for respondent.
    Vehicle and Traffic Law § 1192 (3) does not apply to drivers whose alleged intoxication was caused by a substance other than alcohol. (People v Cruz, 48 NY2d 419; People v Stack, 140 AD2d 389; People v Bayer, 132 AD2d 920; People v Ottomanelli, 107 AD2d 212; People v Weaver, 188 App Div 395; People v Koch, 250 App Div 623; People v Ardila, 85 NY2d 846; People v Cunningham, 95 NY2d 909; People v Bayer, 132 AD2d 920; People v Grinberg, 4 Misc 3d 670.)
   OPINION OF THE COURT

Chief Judge Kaye.

Over the last 97 years, the Legislature has crafted and repeatedly refined statutes with the goal of removing from the road those who drive while intoxicated. This appeal centers on the phrase “driving while intoxicated” in Vehicle and Traffic Law § 1192 (3). Based on the language, history and scheme of the statute, we conclude that the Legislature here intended to use “intoxication” to refer to a disordered state of mind caused by alcohol, not by drugs.

Facts

On the evening of January 13, 2004, defendant Vincent Litto, 19 years old, was driving south in Brooklyn on a four-lane road, with three passengers in his car. Traveling at 50 miles an hour on a road on which cars moved at an average speed of 30 miles an hour, defendant picked up a can of “Dust-Off” from the dashboard and sprayed it into his mouth. About 45 seconds later, he veered into oncoming traffic and crashed into a vehicle driven by Andrea Sett. One of the passengers in Sett’s car, 17-year-old Kristian Roggio, was killed. Sett, another passenger, defendant and two of his passengers were injured, some seriously.

Dust-Off contains a hydrocarbon, difluoroethane, which assists as a propellant and gives a person who “huffs” it a “high.” According to William Closson, a forensic expert who testified before the grand jury, inhalation of this hydrocarbon initially acts as a stimulant. Within seconds, however, the person’s central nervous system becomes depressed, making it difficult to perceive and react to the environment.

The People submitted 14 counts to the grand jury — one count each of manslaughter in the second degree (Penal Law § 125.15 [1]), vehicular manslaughter in the second degree (Penal Law § 125.12), criminally negligent homicide (Penal Law § 125.10), reckless endangerment in the second degree (Penal Law § 120.20), reckless driving (Vehicle and Traffic Law § 1212), operating a motor vehicle while in an intoxicated condition (Vehicle and Traffic Law § 1192 [3]), four counts of assault in the second degree (Penal Law § 120.05 [4]) and four counts of assault in the third degree (Penal Law § 120.00 [2]).

On count six, driving while intoxicated, the prosecutor charged the grand jury that:

“If you find by the credible and legally sufficient evidence that on or about January 13, 2004, in the County of Kings, City and state of New York, the defendant, Vincent Litto, did operate a motor vehicle while in an intoxicated condition, you may find one count of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs.”

The prosecutor instructed the grand jury that in order to charge defendant with vehicular manslaughter in the second degree, count two, it would have to find legally sufficient evidence that defendant committed the crime of criminally negligent homicide and caused the death of Kristian Roggio by operation of a vehicle in violation of Vehicle and Traffic Law § 1192 (3). The grand jury indicted defendant on all 14 counts.

Upon defendant’s motion for dismissal of the indictment and inspection of the grand jury minutes, Supreme Court found the evidence before the grand jury legally sufficient on all except counts two and six. The court determined that ingestion of hydrocarbon does not fall within Vehicle and Traffic Law § 1192 (3), driving while intoxicated, and therefore could not serve as a basis for the count of vehicular manslaughter. The evidence, however, was sufficient to sustain the grand jury’s conclusion that the victim’s death was a direct result of defendant’s reckless conduct. The Appellate Division, with one Justice dissenting, affirmed. The court reasoned that, among other amendments in the Vehicle and Traffic Law, the Legislature’s 1966 enactment of a separate provision prohibiting driving while ability impaired by drugs implied that the provision prohibiting driving while intoxicated did not proscribe such conduct. We agree with the determinations of Supreme Court and the Appellate Division and now affirm. Defendant stands accused of the 12 remaining criminal charges.

Analysis

The question posed in this case is whether a driver can be prosecuted under Vehicle and Traffic Law § 1192 (3) for “driving while intoxicated” while under the influence of a drug or other unlisted substance. The People argue that subdivision 3 includes the voluntary use of any substance or agent that can render a person “intoxicated.” Defendant asserts that “intoxication” under this statute applies only to alcohol. The legislative history of the statute and its scheme reveal that the Legislature’s intent has been to treat a driver’s use of alcohol differently from a driver’s use of drugs, and that the prohibition of driving while intoxicated under subdivision 3 of section 1192 is part of the strategy to prevent the “drinking driver” from using the roadways.

Section 1192 of the Vehicle and Traffic Law is entitled: “Operating a motor vehicle while under the influence of alcohol or drugs.” The law provides:

“1. Driving while ability impaired. No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the consumption of alcohol.
“2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article.
“2-a. Aggravated driving while intoxicated; per se.
No person shall operate a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person’s blood as shown by chemical analysis of such person’s blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of this article.
“3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.
“4. Driving while ability impaired by drugs. No person shall operate a motor vehicle while the person’s ability to operate such a motor vehicle is impaired by the use of a drug as defined in this chaptér.
“4-a. Driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs. No person shall operate a motor vehicle while the person’s ability to operate such motor vehicle is impaired by the combined influence of drugs or of alcohol and any drug or drugs. . . .
“9. Conviction of a different charge. A driver may be convicted of a violation of subdivision one, two or three of this section, notwithstanding that the charge laid before the court alleged a violation of subdivision two or three of this section . . .

Vehicle and Traffic Law § 114-a, in the same chapter — chapter 71 of the Consolidated Laws — as section 1192, provides: “The term ‘drug’ when used in this chapter, means and includes any substance listed in section thirty-three hundred six of the public health law.” Public Health Law § 3306 is an extensive schedule of controlled substances. Neither difluoroethane nor the more general hydrocarbon is on the list and, therefore, defendant in this case could not have been charged under Vehicle and Traffic Law § 1192 (4). A violation of Vehicle and Traffic Law § 1192 (1) is a traffic infraction; violations of subdivisions 2 through 4-a are misdemeanors.

The Court’s primary goal is to interpret a statute by determining, and implementing, the Legislature’s intent. Analysis begins with the language of the statute itself. Next, in construing a statute, the courts frequently “follow the course of legislation on the subject, the lineage of the act being thought to illuminate the intent of the legislature” (McKinney’s Cons Laws of NY, Book 1, Statutes § 124, at 255; see Matter of Tompkins County Support Collection Unit v Chamberlin, 99 NY2d 328, 335 [2003]; Riley v County of Broome, 95 NY2d 455, 463 [2000]). The Court additionally looks to the purposes underlying the legislative scheme (see Sheehy v Big Flats Community Day, 73 NY2d 629, 634 [1989]). That method is particularly apt in this case in which the Legislature itself, over the course of the century, has repeatedly refined the statute as society has evolved, science has progressed and new problems have emerged.

The Language of the Statute

The plain meaning of the language of a statute must be interpreted “in the light of conditions existing at the time of its passage and construed as the courts would have construed it soon after its passage” (People v Koch, 250 App Div 623, 624 [2d Dept 1937]; see People v Broadway R.R. Co. of Brooklyn, 126 NY 29, 37 [1891]).

When enacted in 1910, section 290 (3) of the Highway Law (precursor to section 1192) stated: “Whoever operates a motor vehicle while in an intoxicated condition shall be guilty of a misdemeanor” (L 1910, ch 374, § 1, at 684, amending Highway Law of 1909 tit 11 [L 1909, ch 30, 3 Birdseye, Gumming and Gilbert’s Cons Laws of NY, at 3622 (2d ed)]). The law did not — as it does not today — define “intoxication.” In People v Weaver (188 App Div 395, 399 [3d Dept 1919]), the court interpreted this statute by using “the ordinary speech of people.” After citing to various dictionary definitions, the court adopted a rule that under Highway Law § 290 (3), one is “intoxicated when he has imbibed enough liquor to render him incapable of giving that attention and care to the operation of his automobile that a man of prudence and reasonable intelligence would give” (id. at 400). Black’s Law Dictionary in 1910 defined “intoxication” as:

“The state of being poisoned; the condition produced by the administration or introduction into the human system of a poison. But in its popular use this term is restricted to alcoholic intoxication, that is, drunkenness or inebriety, or the mental and physical condition induced by drinking excessive quantities of alcoholic liquors, and this is its meaning as used in statutes, indictments, etc.” (Black’s Law Dictionary 652 [2d ed 1910].)

In 1914, Bouvier’s Law Dictionary (at 943, 1680 [3d rev ed 1914]) defined “intoxication” simply as “drunkenness,” which, in turn, was defined as: “[t]he condition of a man whose mind is affected by the immediate use of intoxicating drinks.” The definition in Webster’s International Dictionary was: “the state of being intoxicated or drunk; inebriation; ebriety; drunkenness” (Webster’s International Dictionary 782 [1908]). Webster’s also notes the medical definition of “a poisoning, as by a spirituous or a narcotic substance” (id.). While this latter definition refers to a narcotic as an intoxicant, and some other dictionaries mention drugs, the common, ordinary usage of the word “intoxication” appears to have been a condition caused by alcohol (see People v Grinberg, 4 Misc 3d 670, 674 [Crim Ct, Kings County 2004], quoting Ring v Ring, 112 Ga 854, 857, 38 SE 330, 331 [1901], in which the Supreme Court of Georgia at the start of the twentieth century analyzed the term “intoxication” as defined in several dictionaries and encyclopedias and concluded that “lexicographers treat ‘intoxication’ and ‘drunkenness’ as synonymous”).

The Course of the Legislation

In 1929, the statute prohibiting intoxication while driving became part of the Vehicle and Traffic Law as section 70 (5) (L 1929, ch 54; see King and Tipperman, The Offense of Driving While Intoxicated: The Development of Statutory and Case Law in New York, 3 Hofstra L Rev 541, 545 [1975]). Convictions were based on a defendant’s conduct and demeanor at the time of arrest (see People v Cruz, 48 NY2d 419, 424 [1979]).

It was not until 1941, after years of extensive study and debate, that a major amendment permitted the admission at trial of tests for blood alcohol content (L 1941, ch 726; King at 546). Except for adding motorcycles, the prohibition against driving while intoxicated used the exact language as in 1910, and included a statement that evidence of the amount of alcohol in the blood from a test taken within two hours of arrest was admissible to prove intoxication. The test could be by medical or chemical analysis of the driver’s breath, blood, urine or saliva. Use of the term “intoxicated” along with the specific amounts of alcohol in the blood is evidence that the Legislature intended — and likely assumed that the Legislature in 1910 intended — that “intoxication” means that a mind is altered by an amount of alcohol.

The legislative history of the 1941 amendment supports that interpretation. Dutton S. Peterson, the sponsor, wrote to the Governor:

“Since this bill has been approved by the highest medical authority, The American Medical Association, bar associations, police organizations, civic organizations, and automobile clubs, and because of the need for a further curb on the drinking driver, I urge that you sign this bill.
“I have made an extensive study of this matter.” (Letter from Assembly Sponsor, Apr. 19, 1941, Bill Jacket, L 1941, ch 726, at 39.)

A “summary of evidence” is enclosed with that letter. Peterson notes that “different drinkers are differently affected by the same amount of alcoholic beverages,” and, thus, “the only fair test of intoxication is to determine the degree of alochol [szc] concentration in the blood by scientific tests” (id. at 41). The percentages were arrived at through “careful study” and “thousands of medical tests” which were “not disputed by any reputable medical authority” (id. at 40, 41). Exhaustive studies were made by the National Safety Council (id. at 42). The American Medical Association noted the disability by prescribed drugs but used the term “intoxication” for the amount of alcohol in the blood (AMA, Report of the Committee to Study Problems of Motor Vehicle Accidents, May 1939, Bill Jacket, L 1941, ch 726, at 47-49). The Senate sponsor also sought the admission of scientific tests to prove intoxication to “cut[ ] down the number of injuries and deaths caused by the drunken drivers” (Letter from Senate Sponsor, Apr. 24, 1941, Bill Jacket, L 1941, ch 726, at 69).

Some voiced concern over the medical reliability of the tests and of the amounts of alcohol that would show intoxication. For example, one group noted that it had disapproved a previous 1938 bill because the medical profession was not “unanimous in its opinion as to the results obtainable from urine and blood tests,” which, “according to some, are not determinative on the question of whether or not any particular person is intoxicated” (Mem of Comm on Crim Cts Law and Pro of Assn of Bar of City of NY, Bill Jacket, L 1941, ch 726, at 4-5; see Rep of NY County Lawyers’ Assn. Comm on State Legislation, Bill Jacket, at 7; Letter from Commr of Taxation and Fin, Bill Jacket, at 25 [“while tests of the amount of alcohol in the blood may furnish valuable evidence as to intoxication, there ought to be supporting evidence to warrant a conviction”]).

This extensive documentation demonstrates that the legislative goal of strengthening the ability to prosecute for driving in an intoxicated condition was to address the drinking driver, not the driver who uses drugs. Only after studying exhaustive scientific and statistical tests confirming the validity of the percentages for blood alcohol content did the Legislature pass a law that would find intoxicated drivers liable for criminal penalties.

In 1959, section 70 (5) became section 1192 of the Vehicle and Traffic Law, and an implied consent law was added as section 1194 (L 1959, ch 775; King at 561-562 [if a driver refused to submit to breath, blood, urine or saliva sample, the Commissioner of Motor Vehicles was required to revoke the driver’s license]).

A 1960 amendment added a new offense to section 1192— driving “while ability to operate is impaired by the consumption of alcohol” (L 1960, ch 184). The new subdivision 1 was enacted so that an impaired driver — one whose blood alcohol content was .10% or more, and less than .15% — could receive a traffic infraction and not be criminally liable. The language prohibiting driving while intoxicated was kept intact, became subdivision 2 and remained a misdemeanor. Underlying the amendment were vast medical and scientific data — including laboratory and field investigations — to confirm that the amount of alcohol content would be an accurate showing of impairment (Sponsor’s Mem and Appendix, Bill Jacket, L 1960, ch 184, at 1-6).

Opposed to the amendment, the New York State Automobile Association found fault with the difficulty of enforcement for such low amounts of alcohol in the blood and wondered why “little mention is made of the impairment produced by fatigue, tension, the taking of medicines or even indisposition caused by indigestion” (Letter from NY State Auto Assn, Bill Jacket, at 12). The Governor’s memorandum, however, indicated that the amendment

“provides a realistic approach towards reducing the tragic toll of death and injury caused by the drinking driver.
“Existing law has proved inadequate in this regard in that it is directed towards only the most serious offender, the driver with a blood-alcohol level of at least 0.15%. In requiring that the drinking driver be classified as a criminal, present law has not proved adequate to remove the drinking driver from our highways” (Governor’s Mem approving L 1960, ch 184, 1960 McKinney’s Session Laws of NY, at 2002).

The Legislature was focusing on “drinking drivers,” the more serious ones designated “intoxicated.”

In 1966, the Legislature enacted what is now section 1192 (4), making it a misdemeanor to operate a motor vehicle while a driver’s ability is impaired by the use of a drug, and defining those drugs in section 114-a of the Vehicle and Traffic Law (L 1966, ch 963, §§ 1, 4). (Those drugs are now specified in section 3306 of the Public Health Law.) The sponsor of the bill, Norman E Lent, wrote:

“Section 1192 (2) of the Vehicle and Traffic Law as presently written pertains to the operation of a motor vehicle while under the influence of alcohol. If a person is convicted of driving while under the influence of alcohol, such person is guilty of a misdemeanor and his license may be revoked. More serious penalties result for second or more offenders within a ten year period. The bill would impose equal sanctions on persons convicted of driving while his ability to do so is impaired by the use of a drug, as that term is defined in the bill. . . .
“New York is one of the few remaining major states without a law against operating a motor vehicle while one’s ability is impaired by the use of drugs and narcotics.
“Passage of such a law should also curb the present practice employed by defendants in drunk driving prosecutions of claiming they were not drunk, but ‘merely’ under the influence of a drug or narcotic prescribed by their physician. It is just as dangerous to operate a motor vehicle while one’s ability to drive is impaired by a drug or narcotic, as it is to operate a motor vehicle while under the influence of alcohol” (Letter from Senate Sponsor, June 7, 1966, Bill Jacket, L 1966, ch 963, at 14-15).

Other letters demonstrate that the subdivision prohibiting “intoxication” did not cover the use of drugs. The Attorney General wrote that the bill would amend the statute so that “existing provisions of law relating to driving while ability is impaired by alcohol or drunken driving will be extended to apply to driving while ability is impaired by the use of a drug” (Letter from Attorney General, June 7, 1966, Bill Jacket, L 1966, ch 963, at 17). The Department of Motor Vehicles similarly recommended passage because, until this enactment, the Commissioner was unable to “take effective action” by revoking a driver’s license from a driver impaired by the use of drugs, “and the police agencies were unable to convict a person who drove while so impaired” (Letter from Commr of Motor Vehs, Apr. 1, 1966, Bill Jacket, at 18).

The Department of Health recommended disapproval, for while “[t]he law has established standards for determining degrees of intoxication which can be accurately determined by chemical tests,” research was necessary before standards could be devised for ascertaining impairment by the use of drugs (Letter from Counsel for Dept of Health, Apr. 11, 1966, Bill Jacket, at 23). The Department of Mental Hygiene concurred that “[a]s contrasted with the standard of intoxication, for which presumptions are created, based on medical research, that certain proportions of alcohol in the blood have certain legal consequences, there is no comparable standard set up for various quantities of the defined drugs” (Letter from Counsel for Dept of Mental Hygiene, June 6, 1966, Bill Jacket, at 27).

Two other groups also voiced concern in holding a person criminally liable for taking a drug when the driver had no intent to become impaired (Letter from State Adm’r of Jud Conf, Apr. 12, 1966, Bill Jacket, at 21-22; Mem of Supt of NY State Police, Mar. 31, 1966, Bill Jacket, at 30). Nothing in this Bill Jacket suggests that the provision on “intoxication” included a violation for use of drugs while driving. The legislative history is conclusive that the Legislature in 1966, like previous Legislatures, intended that “intoxication” refer to inebriation by alcohol. It appears that the Legislature did not want to penalize a driver who inadvertently took prescription drugs without knowing their side effects. In addition, the Legislature sought to limit criminalization by defining the drugs prohibited.

In 1970, a new provision, now titled “Driving while intoxicated; per se,” made it a misdemeanor to drive with a blood alcohol content of .15% or more (L 1970, ch 275, § 3). The Governor’s Program Bill stated that the “present provisions relating to driving while intoxicated” would be substantially reenacted, but the blood alcohol content for prima facie evidence would be changed (Governor’s Program Bill Mem, Bill Jacket, L 1970, ch 275, at 1-2). The amendment would also “substantially reenact the present provisions governing driving while ability is impaired by the use of drugs” (id. at 2).

Further, a new section 1196 (now section 1192 [9]) would be added “to permit a conviction ... of a violation of either subdivision 1 (driving while impaired), 2 (.15 or higher) or 3 (driving while intoxicated) of section 1192 where the original charge alleged a violation of either subdivision 2 or 3 of such section” (id.).

The concept of making it unlawful per se to drive with a specific blood alcohol content was patterned after programs in England and Scandinavia. The Automobile Association reversed its opposition because of new research studies, including by the Department of Transportation and the Department of Health, Education and Welfare (Mem in Support of NY State Auto Assn, Feb. 27, 1970, Bill Jacket, at 21). In his memorandum, the Governor wrote:

“Present law provides that the presence of this level of alcohol is merely prima facie evidence of intoxication and makes the determination of intoxication one of subjective judgment. As a consequence, existing provisions have not been sufficiently effective in getting drunk drivers off the road and in deterring others from driving while under the influence of alcohol” (Governor’s Mem approving L 1970, ch 275, Bill Jacket, at 24).

The word “intoxication” here is consistently synonymous with being under the influence of alcohol.

Most recently, in 2006, the Legislature amended section 1192 by adding subdivision 2-a, “Aggravated driving while intoxicated; per se” — which is violated when a person drives with a blood alcohol content of .18% — and subdivision 4-a, “Driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs” (L 2006, ch 732, §§ 1, 2). Several related statutes were also revised. Penal Law § 125.12, vehicular manslaughter in the second degree, was amended to include subdivision 4-a, and underscores that the Legislators intended that “intoxication” should be by use of alcohol, not drugs. That section now provides:

“A person is guilty of vehicular manslaughter in the second degree when he or she causes the death of another person, and either:
“(1) operates a motor vehicle in violation of subdivision two, three, four or four-a of section eleven hundred ninety-two of the vehicle and traffic law . . . , and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates such a motor vehicle . . . in a manner that causes the death of such other person . . . .”

“Intoxication” covers all the provisions including alcohol, while “impairment by the use of a drug” refers to subdivision 4 and “the combined influence” refers to subdivision 4-a of section 1192. The 2006 legislation “reflects a thorough overview of the broad scope of alcohol and drug related statutes in New York” (Senate Introducer Mem in Support of L 2006, ch 732, 2006 McKinney’s Session Laws of NY, at 2183). One argument supporting subdivision 2-a was that “[t]he more intoxicated a driver is, the greater the risk of an accident. This bill appropriately addresses the seriousness of DWI and establishes graduated penalties for more intoxicated drivers . . . .” (Budget Rep on Bills, Bill Jacket, L 2006, ch 732, at 9.) Stiff penalties for “driving while intoxicated” were to deter “hard core drinking drivers” (Letter from Suffolk County Exec, Sept. 7, 2006, Bill Jacket, at 29).

The Scheme Underlying the Statute

The legislative history not only manifests legislative intent to employ the term “intoxicated” to refer to persons inebriated by alcohol and to prevent them from driving, but also reveals a scheme by which the statute would reach that goal. This Court must determine “the consistency” of the Legislature’s reaching its goal “with the purposes underlying the legislative scheme” (Sheehy, 73 NY2d at 634, quoting Bums Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 325 [1983]). “For, the Legislature has both the right and the authority to select the methods to be used in effectuating its goals, as well as to choose the goals themselves” (id.). Sheehy and Burns Jackson addressed private rights of action. The same reasoning applies here — the implementation of an action “should not be judicially sanctioned if it is incompatible with the enforcement mechanism chosen by the Legislature or with some other aspect of the over-all statutory scheme” (Sheehy, 73 NY2d at 635).

In two respects, the People’s construction of Vehicle and Traffic Law § 1192 (3) is out of step with the statutory scheme. First, the scheme of section 1192 provides for different levels or kinds of proof to establish violations of the statute. Thus, a prosecutor must show impairment by alcohol to prove a violation of subdivision 1 — resulting in a traffic infraction. Subdivision 1 is a lesser-included offense of subdivisions 2 and 3. Subdivisions 2 and 2-a require a showing of a specific amount of blood alcohol content to result in a per se criminal violation, whereas subdivision 3 — “in an intoxicated condition” — allows for a circumstantial showing of inability to operate a motor vehicle while under the influence of alcohol. Confirming this scheme, subdivision 9 explicitly permits a conviction under subdivision 1, 2 or 3 even when the charge alleges a violation of either subdivision 2 or 3. If subdivision 3 were now read, as the People urge, to allow for any drug to be included as part of the definition of “intoxication,” then one who has committed a misdemeanor under subdivision 3 could not, in contravention of the legislative plan, be found to have committed the lesser-included offense of driving while impaired by alcohol under subdivision 1.

Second, while the legislative history from 1910 is unavailable, the history thereafter shows that the Legislature has consistently presumed that the initial statute was created to prevent drunk driving. Although, as the People argue, the goal of the Legislature may be advanced by including use of drugs in the definition of “intoxication,” the Legislature has repeatedly and definitively concentrated on precise mechanisms to prevent deathly accidents related to alcohol and drugs (see Mark G. v Sabol, 93 NY2d 710, 722 [1999]). Including driving while under the influence of limitless “drugs” as a violation of driving while intoxicated has not been part of that mechanism.

In 1960, the Legislature added section 1192 (1) to assure that not all drivers who were under the influence of alcohol would be criminally liable. This Court determined that this subdivision and subdivision 3 were not unconstitutionally vague (see Cruz, 48 NY2d 419). The Court concluded that, as to subdivision 1, evident from the statutory language and scheme, the issue was “whether, by voluntarily consuming alcohol, this particular defendant has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver” (id. at 427). “Intoxication,” the Court stated, “is not an unfamiliar concept” and is “intelligible to the average person.” The standard to determine intoxication is “whether the individual’s consumption of alcohol has rendered him incapable of employing the physical or mental abilities needed to, for instance, form a specific intent” (id.). These terms, the Court continued, have an accepted meaning “long recognized in law and life” (id. at 428). The Court thus upheld the Legislature’s scheme.

The addition in 1966 of subdivision 4 demonstrates the Legislature’s desire to add the use of drugs to that of alcohol for further prevention of deaths on the highway. Were drugs included in the definition for “intoxication” under subdivision 3, the Legislature would have had no reason to add another misdemeanor. Rather, the Legislature, after careful study and debate, concluded that a driver could be convicted for impairment by drugs — and then only by explicitly enumerated drugs.

Moreover, the addition in 1970 of section 1196 (now section 1192 [9]) reaffirms that the term “intoxication” refers to the use of alcohol. In People v Farmer (36 NY2d 386, 390 [1975]), the Court held that, pursuant to section 1196, the defendant charged under subdivision 3 had notice that he could be convicted under subdivision 2. Although subdivisions 1, 2 and 3 “proscribe separable offenses based upon the degree of impairment caused by alcohol ingestion,” the provisions “closely overlap” and are “species of the generic offense of ‘Operating a motor vehicle while under the influence of alcohol’ ” (id.; see also People v Bayer, 132 AD2d 920 [4th Dept 1987]; Grinberg, 4 Misc 3d at 677). Again, the Court upheld the legislative scheme and interpreted the legislative intent to be that driving while intoxicated under subdivision 3 addresses those who drink and drive.

Only last year, focusing its attention on strengthening the statute, the Legislature added one provision to prohibit driving while using alcohol — aggravated driving while intoxicated, subdivision 2-a — and another provision to prohibit driving while using a combination of “drugs or of alcohol and any drug or drugs” — subdivision 4-a. The Legislature unambiguously employed the term “intoxicated” for the level of alcohol, and the terms “alcohol” and “drugs” for the combination.

If defendant did what the prosecution charges, then his conduct was reprehensible — his voluntary inhalation of hydrocarbon while driving resulted in the death of a young woman and serious injuries to others. Perhaps gaps exist in the law and the prosecution should not have to rely on the 12 other counts charged. However, a determination by this Court that intoxication in Vehicle and Traffic Law § 1192 (3) includes the use of any substance would improperly override the legislative policy judgment.

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

Judges Cipakick, Graffeo, Read, Smith, Pigott and Jones concur.

Order affirmed.

      . Difluoroethane is an aerosol commonly found in cleaning products for electronics, and in hair sprays and deodorants (see Natl Insts of Health, Household Products Database, http://householdproducts.nlm.nih.gov/cgi-bin/household/brands?tbl=chem&id=755; Everything2, “Difluoroethane,” http://everything2.com/index.pl?node=Difluoroethane [last visited June 20, 2007]).

      . Subdivisions 2-a and 4-a were not in effect at the time of the incident. This appeal does not call upon us to determine the meaning of “any drug” as used in Vehicle and Traffic Law § 1192 (4-a).

      . One definition of “intoxicate” in the Oxford English Dictionary, for example, is: “To stupefy or excite as with a drug or alcoholic liquor; to render unsteady or delirious in mind or feelings; to excite or exhilarate beyond self-control” (Oxford English Dictionary 432 [1901]).

      . Evidence of .05 of one percent or less by weight of alcohol in the blood was prima facie evidence that defendant was not in an intoxicated condition; more than .05 but less than .15 of one percent was relevant evidence of intoxication; evidence of .15 of one percent was prima facie evidence that defendant was in an intoxicated condition.

      . The “impaired ability” provision continued to be subdivision 1, the new per se provision became subdivision 2, the “driving while intoxicated” provision became subdivision 3, and the “drug impairment” provision became subdivision 4.


author: CIPARICK, J.

text:
    [871 NE2d 1128, 840 NYS2d 302]
    BP Air Conditioning Corp., Respondent, v One Beacon Insurance Group, Appellant.
    Argued May 30, 2007;
    decided June 27, 2007

      POINTS OF COUNSEL

      Lustig & Brown, LLP, Buffalo (Jonathan Schapp and Russell N. Brown of counsel), for appellant.
    I. The lower court erred in treating BP Air Conditioning Corp. as an additional insured under the One Beacon Insurance Group policy. (Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640; Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131; Kajima Constr. Servs. v CATI, Inc., 302 AD2d 228; Consolidated Edison Co. of N.Y. v United States Fid. & Guar. Co., 266 AD2d 9; Consolidated Edison Co. of N.Y. v Hartford Ins. Co., 203 AD2d 83; Pecker Iron Works of N.Y. v Traveler’s Ins. Co., 99 NY2d 391; Thomson v Power Auth. of State of N.Y., 217 AD2d 495; Greater N.Y. Mut. Ins. Co. v Mutual Mar. Off., 3 AD3d 44; Structure Tone v

      Component Assembly Sys., 275 AD2d 603.) II. Regardless of whether the court was correct in deeming BP Air Conditioning Corp. an additional insured under the One Beacon Insurance Group policy, the court erred in finding that Pecker Iron Works of N.Y. v Traveler’s Ins. Co. (99 NY2d 391 [2003]) mandates One Beacon to provide primary coverage without consideration of the respective policies’ language. (Jefferson Ins. Co. of N.Y. v Travelers Indem. Co., 92 NY2d 363; United States Liab. Ins. Co. v Mountain Val. Indem. Co., 371 F Supp 2d 554; State Farm Fire & Cas. Co. v LiMauro, 65 NY2d 369; United States Fid. & Guar. Co. v CNA Ins. Cos., 208 AD2d 1163; Travelers Indem. Co. v American & Foreign Ins. Co., 286 AD2d 626; National Union Fire Ins. Co. of Pittsburgh, Pa. v Hartford Ins. Co. of Midwest, 248 AD2d 78; B.K. Gen. Contrs. v Michigan Mut. Ins. Co., 204 AD2d 584.)

      Wechsler & Cohen, LLP, New York City (Mitchell S. Cohen and Debora A. Pitman of counsel), for respondent.
    I. The duty to defend is broader than the duty to indemnify, thus, one Beacon Insurance Group’s defense duty to BP Air Conditioning Corp. was triggered by the allegations in Joseph Cosentino’s amended complaint. (Town of Massena v Healthcare Underwriters Mut. Ins. Co., 98 NY2d 435; Incorporated Vil. of Cedarhurst v Hanover Ins. Co., 89 NY2d 293; Ruder & Finn v Seaboard Sur. Co., 52 NY2d 663; Technicon Elecs. Corp. v American Home Assur. Co., 74 NY2d 66; Seaboard Sur. Co. v Gillette Co., 64 NY2d 304; Servidone Constr. Corp. v Security Ins. Co. of Hartford, 64 NY2d 419; Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131; Goldberg v Lumber Mut. Cas. Ins. Co. of N.Y., 297 NY 148; Raymond Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 5 NY3d 157; State of New York v Home Indem. Co., 66 NY2d 669.) II. One Beacon Insurance Group’s argument, that its duty to defend is contingent on a liability finding, negates a primary insurer’s duty to defend, ignores that relatively few cases are tried, and would engender protracted litigation. (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304; General Motors Acceptance Corp. v Nationwide Ins. Co., 4 NY3d 451; Album Realty Corp. v American Home Assur. Co., 80 NY2d 1008; Michaels v City of Buffalo, 85 NY2d 754; Mionis v Bank Julius Baer & Co., 301 AD2d 104.) III. The lower court correctly held that One Beacon Insurance Group’s policy is primary to any policy covering BP Air Conditioning Corp. as a named insured. (Pecker Iron Works of N.Y. v Traveler’s Ins. Co., 99 NY2d 391; United States Liab. Ins. Co. v Mountain Val. Indem. Co., 371 F Supp 2d 554; Bingham v New York City Tr.

      Auth., 99 NY2d 355.) IV. One Beacon Insurance Group must defend BP Air Conditioning Corp. because it provided coverage for Alfa Piping Corp.’s contractually assumed liabilities. (Travelers Indent. Co. v LLJV Dev. Corp., 227 AD2d 151; Brooklyn Union Gas Co. v Interboro Asphalt Surface Co., 303 AD2d 532; Antonitti v City of Glen Cove, 266 AD2d 487; New York City Tr. Auth. v Aetna Cas. & Sur. Co., 207 AD2d 389; A. Servidone, Inc. v Commercial Underwriter’s Ins. Co., 7 AD3d 942; Hailey v New York State Elec. & Gas Corp., 214 AD2d 986.)
   OPINION OF THE COURT

CIPARICK, J.

We are asked to decide within the context of a comprehensive general liability (CGL) insurance policy whether liability must be determined before an additional named insured is entitled to a defense in an underlying personal injury action. We conclude that additional insured coverage is not contingent upon a liability finding and that the obligation of an insurer to provide a defense to an additional named insured under the policy exists to the same extent as it does to a named insured. We are unable to answer a second question regarding priority of coverage since the relevant parties and policies at issue are not before us.

In 2000, Henegan Construction Company, Inc., a general contractor on a multi-floor renovation project at the World Trade Center, subcontracted the HVAC work to BP Air Conditioning Corp. BP subsequently subcontracted the HVAC-related steam fitting work to Alfa Piping Corp. The purchase order memorializing the subcontract between BP and Alfa contained the following indemnification/hold-harmless clause:

“To the fullest extent permitted by law, Subcontractor shall indemnify and hold harmless the Owner, General Contractor and BP Air Conditioning and their agent and employees from and against all claims, damages, losses, and expenses, including, but not limited to attorneys fees, arising out of or resulting from the performance of the Work, provided that any such claims, damages, losses or expenses are (1) attributable to bodily injury[,] sickness, disease or death or to injury or to destruction of tangible property including the loss of use resulting therefrom and (2) caused in whole or in part by any negligent act or omission of the Subcontractor, any sub-subcontractor, anyone directly or indirectly employed, by any of them or anyone for whose acts any of them be liable, regardless of whether or not it is caused in part by a party indemnified hereunder.”

Furthermore, the purchase order required Alfa to obtain “Comprehensive General Liability [insurance . . . naming [BP] . . . additional insured.” The CGL policy issued by defendant, One Beacon Insurance Group, to Alfa included an additional insured endorsement, which provided in relevant part that:

“Who is An Insured (Section II) is amended to include as an insured any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization is an additional insured only with respect to liability arising out of your ongoing operations performed for that insured. A person’s or organization’s status as an insured under this endorsement ends when your operations for that insured are completed.”

In December 2000, Joseph Cosentino, an employee of Karo Sheet Metal, Inc., another subcontractor hired by BP was allegedly injured when he slipped and fell on an oil slick that had originated from a machine used to cut and thread pipe at the work site. Cosentino commenced an action against Henegan, who then brought a third-party action against BP and Alfa, who were subsequently added as direct defendants in the Cosentino action.

BP as an additional named insured on Alfa’s policy, tendered its defense in the Cosentino action to One Beacon, which declined to defend BP although it defended Alfa, its insured in the underlying action. BP then commenced a fourth-party action against One Beacon, seeking a declaration of its rights as an additional insured under Alfa’s policy, and against Karo, asserting various contractual and common-law claims. One Beacon subsequently moved to sever BP’s fourth-party declaratory judgment action against it from the Cosentino action. The motion court granted One Beacon’s motion, which left Karo as the sole fourth-party defendant in the underlying action and BP and One Beacon as the remaining parties to this declaratory judgment action.

Thereafter, BP moved for partial summary judgment, seeking an order requiring One Beacon to defend it in the underlying action and for reimbursement of its past defense costs. One Beacon opposed summary judgment contending that it was not obligated to defend BP until it was determined that Cosentino’s alleged injury arose out of Alfa’s activities, and that One Beacon’s responsibility, if any, for the costs of BP’s defense could not be determined without considering other relevant policies at issue.

Supreme Court granted BP’s motion for partial summary judgment, to the extent that One Beacon is obligated to defend BP in the Cosentino action. However, the court declined to declare that One Beacon was primarily responsible for BP’s defense costs. The court opined that since no copies of other relevant insurance policies were submitted, it was “unable to ascertain whether . . . some other carrier[ ] should be treated as a co-insurer or an excess carrier to [One Beacon, and that its] ultimate contribution for defense and indemnification[,] if any, cannot be determined from the present submissions” (2004 NY Slip Op 30129[U], *7). The Appellate Division, with two Justices dissenting, modified Supreme Court’s order, holding that One Beacon must provide BP a defense in the Cosentino action and that this coverage is primary and BP’s coverage under its own policy is excess (33 AD3d 116 [2006]).

Relying on the Appellate Division’s holding in AIU Ins. Co. v American Motorists Ins. Co. (292 AD2d 277 [1st Dept 2002]), the dissenting Justices stated that because “the [additional insured] endorsement creates a condition precedent to the triggering of additional insured coverage ... it must be shown that the [cause of] Cosentino [’s] . . . slip and fall emanated . . . from Alfa’s work” (33 AD3d at 133). The dissent further stated that because liability in the underlying Cosentino action must be determined before One Beacon is obligated to defend BE] the court need not reach the issue of the priority of coverage. The Appellate Division granted leave to appeal to this Court and certified the following question: “Was the order of this Court, which modified the order of the Supreme Court, properly made?” We answer the certified question in the negative, modify the order of the Appellate Division and reinstate the order of Supreme Court.

Addressing first whether BP is entitled to be defended by One Beacon, it is well settled that an insurer’s “duty to defend [its insured] is ‘exceedingly broad’ and an insurer will be called upon to provide a defense whenever the allegations of the complaint ‘suggest ... a reasonable possibility of coverage’ ” (Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, 137 [2006] [citation omitted]). “The duty to defend [an] insured[ ] ... is derived from the allegations of the complaint and the terms of the policy. If [a] complaint contains any facts or allegations which bring the claim even potentially within the protection purchased, the insurer is obligated to defend” (Technicon Elecs. Corp. v American Home Assur. Co., 74 NY2d 66, 73 [1989]).

A duty to defend is triggered by the allegations contained in the underlying complaint. The inquiry is whether the allegations fall within the risk of loss undertaken by the insured “[and, it is immaterial] that the complaint against the insured asserts additional claims which fall outside the policy’s general coverage or within its exclusory provisions” (Town of Massena v Healthcare Underwriters Mut. Ins. Co., 98 NY2d 435, 444 [2002] [internal quotation marks and citation omitted]). “The merits of the complaint are irrelevant and, [a]n insured’s right to be accorded legal representation is a contractual right and consideration upon which [a person’s] premium is in part predicated, and this right exists even if debatable theories are alleged in the pleading against the insured” (id. [internal quotation marks and citation omitted]). An “insured’s right to representation and the insurer’s correlative duty to defend suits, however groundless, false or fraudulent, are in a sense ‘litigation insurance’ expressly provided by the insurance contract” (Servidone Constr. Corp. v Security Ins. Co. of Hartford, 64 NY2d 419, 423-424 [1985]). Furthermore, “an insurer may be required to defend under the contract even though it may not be required to pay once the litigation has run its course” (Automobile Ins. Co., 7 NY3d at 137).

It is undisputed that Alfa agreed in the purchase order to name BP as an “additional insured” in Alfa’s CGL policy and that Alfa also agreed to indemnify and pay BP’s attorneys fees for any personal injury tort claim arising from Alfa’s work. One Beacon urges us to adopt a different standard that requires a determination of liability before an additional named insured is entitled to a defense. Quite to the contrary, we have held that an “[a]dditional insured is a recognized term in insurance contracts, . . . [and that] the well-understood meaning of the term is an entity enjoying the same protection as the named insured” (Pecker Iron Works of N.Y. v Traveler’s Ins. Co., 99 NY2d 391, 393 [2003] [internal quotation marks and citations omitted]). As such, the dissenting Justices’ and One Beacon’s reliance on the Appellate Division’s decision in AIU Ins. Co., which held that liability must be determined before an additional insured is entitled to a defense, is misplaced. Thus, the standard for determining whether an additional named insured is entitled to a defense is the same standard that is used to determine if a named insured is entitled to a defense.

One Beacon argues that the portion of the additional insured endorsement that states that BP “is an additional insured only with respect to liability arising out of [Alfa’s] ongoing operations performed for that insured,” requires a determination of liability for Cosentino’s injuries before BP is entitled to a defense. However, when considering this policy language in light of an insurer’s broad obligation to defend an insured, it does not affect the standard under which a duty to defend is determined. When the duty to defend is at issue, a liability alleged to arise out of Alfa’s ongoing operations is one “arising out of’ such operations within the meaning of the policy.

Here, Cosentino, in his amended complaint, alleged, among other things, that Alfa, BP’s subcontractor, was engaged in construction work at the work site where he was injured, that Alfa breached its duty to keep the work site safe and that Alfa’s breach caused his injuries. These allegations form a “factual [and] legal basis on which [One Beacon] might eventually be held to be obligated to indemnify [BP] under any provision of the insurance policy” and certainly bring this claim within the ambit of the protection purchased {Servidone Constr. Corp. at 424). Since there is a possibility that Cosentino’s injuries “ar[ose] out of [Alfa’s] ongoing operations performed for [BP],” One Beacon’s obligation to provide BP with a defense is triggered.

Moreover, nothing in the policy or the purchase order requires the application of a different standard for determining under what circumstances BP is entitled to a defense. To the contrary, the purchase order’s indemnification/hold-harmless clause indicates that BP sought broad protection against any liability that may be attributable to Alfa’s activities as insured by One Beacon. The language of the purchase order and the policy evinces BP’s reasonable expectation to the defense that it now seeks.

We have previously held that “the reasonable expectation and purpose of the ordinary business [person] when making an ordinary business contract” will be considered in construing a contract (Album Realty Corp. v American Home Assur. Co., 80 NY2d 1008, 1010 [1992]). BP’s reasonable expectation, when it forwarded the purchase order to Alfa that required Alfa to name BP as an additional insured, was that it wanted protection from lawsuits arising out of Alfa’s work — litigation insurance. Denying BP a defense in the underlying matter would rewrite the policy without regard to BP’s reasonable expectations as expressed in the purchase order, and provide a windfall for One Beacon. Therefore, the lower courts correctly determined that One Beacon is obligated to provide BP a defense in the underlying Cosentino action, regardless of the merits of the claim.

Turning to the issue of the priority of coverage, we conclude that the Appellate Division erred in finding that One Beacon’s coverage is primary and BP’s coverage under its own policy is excess. In order to determine the priority of coverage among different policies, a court must review and consider all of the relevant policies at issue (see State Farm Fire & Cas. Co. v LiMauro, 65 NY2d 369 [1985]). Here, Supreme Court correctly concluded that because none of the other insurance carriers are parties to this declaratory judgment action and no other relevant policies have been submitted, the priority of coverage cannot be determined.

Accordingly, the order of the Appellate Division should be modified, without costs, by reinstating the order of Supreme Court and, as so modified, the order should be affirmed, and the certified question answered in the negative.

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

Order modified, etc.

      . One Beacon is the successor-in-interest to General Accident Insurance, the insurance company that issued Alfa’s policy.

      . The underlying action is captioned Cosentino v Henegan Construction Company, Inc., et al., New York County Clerk’s Index No. 110853/01.


author: Pigott, J.

text:
    [872 NE2d 232, 840 NYS2d 546]
    In the Matter of Eighth Judicial District Asbestos Litigation. Nancy A. Reynolds, Individually and as Executrix of Donald H. Reynolds, Deceased, Respondent, v Amchem Products Inc. et al., Defendants, and Garlock Sealing Technologies LLC, Appellant.
    Argued May 29, 2007;
    decided June 27, 2007

      POINTS OF COUNSEL

      Michael J. Hutter, Albany, and Osborne, Reed & Burke, LLP, Rochester (.Bernadette Weaver-Catalana of counsel), for appellant.
    I. The trial court committed reversible error by its failure to disclose to Garlock Sealing Technologies LLC that plaintiff and Niagara Insulations, Inc. had entered into a high-low settlement agreement prior to the commencement of the trial and by its condonation of the continuing concealment of the agreement from Garlock during the trial. (McDonnell v Tello, 8 Misc 3d 1003[A], 2005 NY Slip Op 50913[U]; Williams v Niske, 81 NY2d 437; Vecchione v Amica Mut. Ins. Co., 274 AD2d 576; Esposito v Wilson, 308 AD2d 432; Considar, Inc. v Equipment & Parts Export, 271 AD2d 288; Stiles v Batavia Atomic Horseshoes, 174 AD2d 287, 81 NY2d 950, 1068; Hoops v Watermelon City Trucking, Inc., 846 F2d 637; Daniel v Penrod Drilling Co., 393 F Supp 1056; Pretto v Leiwant, 80 AD2d 579; Meleo v Rochester Gas & Elec. Corp., 72 AD2d 83.) II. The trial court committed reversible error with respect to four of its evidentiary rulings, especially when these rulings are viewed in the context of the trial court’s awareness of and Garlock Sealing Technologies LLC’s ignorance of the high-low settlement agreement between plaintiffs and Niagara Insulations, Inc. (Goldner v Kemper Ins. Co., 152 AD2d 936, 75 NY2d 704; Fanelli v diLorenzo, 187 AD2d 1004; Cramer v Kuhns, 213 AD2d 131; Hoover v Durkee, 212 AD2d 839; Parker v Mobil Oil Corp., 7 NY3d 434, 8 NY3d 828; People v Wesley, 83 NY2d 417; DeMeyer v Advantage Auto, 9 Misc 3d 306; People v Jeter, 80 NY2d 818; New York Laser Lign v Ausable Communications, 42 AD2d 830; Larkin v Nassau Elec. R.R. Co., 205 NY 267.)

      Lipsitz & Ponterio, LLC, Buffalo (John Ned Lipsitz, Nan L. Haynes and Anne E. Joynt of counsel), for respondent.
    I. In the absence of an abuse of discretion, the lower courts’ twin findings of no collusion among the parties and no prejudice to the interests of Garlock Sealing Technologies LLC are not reviewable by this Court. (Patron v Patron, 40 NY2d 582; Gutin v Mascali & Sons, 11 NY2d 97; Rivers v Garden Way, 231 AD2d 50; Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376; Woodson v Mendon Leasing Corp., 100 NY2d 62; Dunn v Eickhoff, 35 NY2d 698; Post v Brooklyn Hgts. R.R. Co., 195 NY 62.) II. This Court should reject Garlock Sealing Technologies LLC’s invitation to adopt a new and unprecedented rule mandating disclosure of all confidential high-low agreements entered into in the presence of the trial judge. (Meleo v Rochester Gas & Elec. Corp., 72 AD2d 83, 49 NY2d 703; Williams v Niske, 81 NY2d 437; Stiles v Batavia Atomic Horseshoes, 174 AD2d 287; Considar, Inc. v Equipment & Parts Export, 271 AD2d 288; Hoops v Watermelon City Trucking, Inc., 846 F2d 637.) III. The Appellate Division’s decision affirming the trial court’s evidentiary rulings is not reviewable by the Court of Appeals because the lower courts properly exercised their discretion. (Woodson v Mendon Leasing Corp., 100 NY2d 62; Goldner v Kemper Ins. Co., 152 AD2d 936; Blanchard v Whitlark, 286 AD2d 925; Norfleet v New York City Tr. Auth., 124 AD2d 715; Panaro v General Motors Corp., 122 AD2d 784; People v Wesley, 83 NY2d 417; Parker v Mobil Oil Corp., 8 NY3d 828; DeMeyer v Advantage Auto, 9 Misc 3d 306; Lustenring v 98-100 Realty, 1 AD3d 574; Lobella v Willis Seafood, 296 AD2d 382.)
   OPINION OF THE COURT

Pigott, J.

In this multi-defendant action, Supreme Court erred in failing to disclose to all of the parties the existence of a high-low agreement between the plaintiffs and one of the defendants. Because this error prejudiced the determination of the rights and liabilities of the nonagreeing defendant at trial, a new trial on liability and damages is warranted.

I.

Plaintiff Donald H. Reynolds worked at the Ashland Oil Refinery in Tonawanda, New York from 1942 through 1987, and purportedly contracted mesothelioma from his exposure to asbestos while employed at that facility. Reynolds and his wife commenced this products liability/negligence action against various manufacturers and distributors of alleged asbestos-containing products used at the refinery. At the time, of trial, only two defendants remained in the action: Garlock Sealing Technologies LLC, a manufacturer of gaskets and packaging, and Niagara Insulations, Inc., a distributor and installer of pipe covering insulation. It is alleged that Reynolds’s exposure to asbestos in these defendants’ products caused his disease.

Unbeknownst to Garlock, plaintiffs and Niagara entered into a high-low agreement two weeks before trial whereby it was agreed that Niagara’s total liability would fall into a predetermined range. Specifically, if the jury’s damage award against Niagara was $155,000 or less, Niagara would pay plaintiffs a minimum of $155,000, even if Niagara was found to be without fault; if the damage award against Niagara was more than $185,000, Niagara’s liability would be capped at $185,000; if the damage award fell within the $155,000-$185,000 range, Niagara would pay plaintiffs the designated amount within that range. Thus, the high-low agreement differed in its effect from a settlement agreement in that Niagara had only $30,000 at stake and its continued participation at trial might have tactical importance for plaintiffs’ claims against Garlock.

Although Supreme Court was cognizant that plaintiffs and Niagara had entered into a high-low agreement, it was unaware of its terms or the amounts involved. Neither Supreme Court nor the agreeing parties advised Garlock of the agreement, and the matter proceeded to trial with Garlock and the jury unaware of its existence. The jury apportioned liability against Garlock and Niagara at 60% and 40% respectively, and awarded plaintiffs damages in the amount of $3,750,000.

Having learned of the high-low agreement just days after the jury’s verdict, Garlock moved to set aside the verdict and requested a new trial on various grounds. Relevant to this appeal, Garlock asserted that Niagara’s continued participation in the trial after entering into the high-low agreement with plaintiffs was inherently unfair and prejudicial, and that Supreme Court’s failure to disclose the existence of the agreement prejudiced Garlock and constituted reversible error. Supreme Court disagreed and entered judgment accordingly.

The Appellate Division, with one dissent, affirmed the judgment, holding that Supreme Court’s failure to disclose the high-low agreement did not warrant reversal absent evidence of collusion between plaintiffs and Niagara to the detriment of Garlock, noting that Niagara never lost its incentive to magnify Garlock’s liability or minimize its own (32 AD3d 1268, 1270 [4th Dept 2006]). We granted leave and now reverse.

II.

At the outset, it should be noted that Supreme Court did an admirable job of brokering pretrial settlements of many claims in this complex litigation involving numerous defendants. That only two defendants remained in the litigation at the time of trial is a testament to Supreme Court’s effectiveness in that regard. Nonetheless, we are constrained to agree with Garlock that the court’s failure to disclose the existence of the high-low agreement rendered impossible a fair determination of Gar-lock’s rights and liabilities.

A high-low agreement is a tool commonly used in litigation that guarantees the plaintiff a minimal recovery while concomitantly capping a defendant’s potential exposure (see Faley and Alonso, Outside Counsel, High-Low Agreements: Misunderstood Litigation Technique, NYLJ, Mar. 27, 1998, at 1, col 1). Because the amount of damages a plaintiff is entitled to recover under a high-low agreement is usually fixed by the liability and damage determinations made by the factfinder, cases involving such agreements routinely go to trial. Unlike a typical settlement situation where the settling defendant is dismissed from the action, having “bought its peace,” the defendant entering into a high-low agreement routinely remains in the action until its ultimate liability has been ascertained.

When entered into between a plaintiff and a defendant in a single-defendant trial, the high-low agreement affords the parties a means of tempering the significant risks associated with proceeding to trial. In a multi-defendant litigation, however, a high-low agreement between a plaintiff and fewer than all defendants has the potential of prejudicing the rights of the nonagreeing defendant if all parties are not apprised of the agreement’s existence. Indeed, courts and commentators alike have acknowledged that secretive agreements may result in prejudice to the nonagreeing defendant at trial, distort the true adversarial nature of the litigation process, and cast a cloud over the judicial system (see generally Slusher v Ospital, 111 P2d 437, 440-441, 444 [Utah 1989]; Ratterree v Bartlett, 238 Kan 11, 29, 707 P2d 1063, 1076 [1985]; General Motors Corp. v Lahocki, 286 Md 714, 723-733, 410 A2d 1039, 1044-1048 [1980]; Ward v Ochoa, 284 So 2d 385, 387-388 [Fla 1973]; Hoenig, Products Liability, Experts, Privileged Info; Secret ‘High-Low’ Agreements, NYLJ, Oct. 11, 2006, at 3, col 1; Kaufman, Outside Counsel, Risk Reduction Strategies in Personal Injury Litigation, NYLJ, Jan. 21, 2000, at 1, col 1; Benedict, It’s a Mistake to Tolerate the Mary Carter Agreement, 87 Colum L Rev 368 [1987]). The resulting prejudice warrants a new trial (see Ratterree, 238 Kan at 28-29, 707 P2d at 1075-1076; General Motors Corp., 286 Md at 728, 410 A2d at 1046).

Here, Garlock was deprived of its right to a fair trial by Supreme Court’s failure to disclose the existence of the high-low agreement. The agreement furnished plaintiffs with an incentive to maximize Oarlock’s liability while minimizing Niagara’s, because the potential amount of damages plaintiffs could recover from Niagara was capped at $185,000. While it is not uncommon for a plaintiff to have a financial incentive to maximize the liability of one particular defendant in a multidefendant action, Oarlock was entitled to disclosure of the existence of the high-low agreement so it knew the true posture of the case. Had the agreement been disclosed, Oarlock could have adjusted its trial strategy accordingly and evaluated the risks of going to trial with the knowledge that plaintiffs had an added incentive of making Oarlock the target defendant.

Nondisclosure also deprived Oarlock of the opportunity to, among other things, seek appropriate procedural and evidentiary rulings from the trial court and argue the significance of the high-low agreement to the jury. For instance, Oarlock may have conducted its jury selection in a different manner, argued that it should not have been required to share peremptory challenges with Niagara, or brought in limine motions concerning the admissibility of the agreement and to what extent, if any, Oarlock would be permitted to cross-examine witnesses concerning the contents of the agreement. Instead, Oarlock was compelled to proceed blindly to trial, without any meaningful opportunity to defend itself from the deleterious effects that the secret agreement may have had on Oarlock’s defense.

To ensure that all parties to a litigation are treated fairly, we hold that whenever a plaintiff and a defendant enter into a high-low agreement in a multi-defendant action which requires the agreeing defendant to remain a party to the litigation, the parties must disclose the existence of that agreement and its terms to the court and the nonagreeing defendant(s). This result strikes a proper balance between this State’s public policy of encouraging the expeditious settlement of claims, and the need to ensure that all parties to a litigation are apprised of the true posture of the litigation so they may tailor their strategy accordingly. Disclosure provides a nonagreeing defendant a meaningful opportunity to place on the record how it intends to use the agreement at trial, if at all, and affords the trial court an opportunity to weigh the interests of all the parties in considering the extent to which an agreement may be utilized in that forum. Of course, the determinations as to what effect, if any, the existence of the agreement will have at trial, including whether such an agreement should be disclosed to the jury, are matters that lie within the sound discretion of the trial court.

Because Garlock is entitled to a new trial, we do not address Garlock’s remaining arguments.

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

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

Order reversed, etc.

      . Reynolds died after the entry of judgment. His wife, Nancy H. Reynolds, responds to this appeal both individually and as the executrix of his estate.

      . We note that the $30,000 range here, although not negligible, was certainly quite narrow. Indeed, the narrower the range, the more likely it seems that the parties’ true motive for entering into a high-low agreement is to gain a tactical advantage at the expense of the nonagreeing defendant.