text:
    [858 NE2d 1136, 825 NYS2d 431]
    In the Matter of Sidney Oglesby, as Onondaga County Commissioner of Jurors, et al., Respondents, v Langston C. McKinney, as Syracuse City Court Judge, Appellant, and Reginald Bradwell, Respondent.
    Argued October 10, 2006;
    decided November 16, 2006

      POINTS OF COUNSEL

      Costello, Cooney & Fearon, PLLC, Syracuse (Samuel C. Young of counsel), and Trevett Cristo Salzer & Andolina PC., Rochester {James C. Gocker and Daniel P. DeBolt of counsel), for appellant.
    I. The Appellate Division improperly converted the CPLR article 78 proceeding into a declaratory judgment action. (Matter of State of New York v King, 36 NY2d 59; Matter of Morgenthau v Erlbaum, 59 NY2d 143, 464 US 993; Matter of Greenberg v Turner, 127 AD2d 909; Matter of Merola v Bernheim, 121 AD2d 895; Matter of Morgenthau v Roberts, 65 NY2d 749; Matter of Burros v Village of Dansville, 242 AD2d 935; Kraham v Mathews, 305 AD2d 746; Matter of Jacobs v Altman, 69 NY2d 733; Krieger v Krieger, 25 NY2d 364; Matter of Hearst Corp. v Clyne, 50 NY2d 707.) II. The Appellate Division erred in holding that, upon the facts before Judge McKinney in the underlying criminal case, Judiciary Law § 500 did not require a jury panel drawn from qualified jurors residing solely in the city of Syracuse for a Syracuse City Court criminal trial. (Duncan v Louisiana, 391 US 145; Taylor v Louisiana, 419 US 522; Thiel v Southern Pacific Co., 328 US 217; Peters v Kiff, 407 US 493; Smith v Texas, 311 US 128; People v Guzman, 60 NY2d 403, 466 US 951; Comiskey v Arlen, 43 NY2d 696; Matter of Peters v New York City Hous. Auth., 307 NY 519; People v Blanchard, 279 AD2d 808; People v McFadden, 244 AD2d 887.)

      William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White and James P. Maxwell of counsel), and Sidney Oglesby, respondents pro se.
    I. The question of the propriety of CPLR article 78 relief is moot, but declaratory relief would now be proper in this case. (Morgenthau v Erlbaum, 59 NY2d 143; Matter of Rush v Mordue, 68 NY2d 348; Matter of State of New York v King, 36 NY2d 59; Matter of Schumer v Holtzman, 60 NY2d 46; Matter of Molea v Marasco, 64 NY2d 718; People v Evans, 94 NY2d 499; People v Finnegan, 85 NY2d 53; Matter of Dondi v Jones, 40 NY2d 8; La Rocca v Lane, 37 NY2d 575; People v Kern, 75 NY2d 638.) II. Neither CPL 360.15 nor Judiciary Law § 500 permits a local criminal court to order a county commissioner of jurors to cull city residents from a county-wide jury pool for exclusive service in a city court. (People v Guzman, 60 NY2d 403; People v Mateo, 175 Misc 2d 192; Taylor v Louisiana, 419 US 522; United States v Flynn, 106 F Supp 966; People v Dunn, 157 NY 528; United States v Rioux, 930 F Supp 1558; People v Shedrick, 66 NY2d 1015; People v Henderson, 128 Misc 2d 360; Matter of Sesto v Mielke, 28 Misc 2d 228; People v Levandowski, 190 Misc 2d 738.)

      Michael Colodner, New York City, John Eiseman and Shawn Kerby for Office of Court Administration, amicus curiae.
    A petit jury to serve in Syracuse City Court that is selected at random from a fair cross-section of Onondaga county residents comports with the Judiciary Law.
   OPINION OF THE COURT

R.S. Smith, J.

We hold that jurors for a criminal trial in a City Court may be selected from the residents of the county in which the city is located, including those who are not city residents.

Facts and Procedural History

Reginald Bradwell was prosecuted in Syracuse City Court for theft of services and resisting arrest. Bradwell moved before trial to strike the jury panel on the ground that, though all panel members were Onondaga county residents, many were not residents of the city of Syracuse. City Court Judge Langston McKinney granted Bradwell’s motion, and directed the County Commissioner of Jurors, Sidney Oglesby, to supply a new panel composed entirely of city residents. The main issue we decide here is whether Judge McKinney’s ruling was correct.

The issue arises in a complicated procedural setting. No statute permits an appeal by the People from an order granting a defendant’s motion to strike a jury panel (see CPL 450.20 [listing cases where appeal by the People is authorized]). Commissioner Oglesby and the Onondaga County District Attorney therefore sought review of Judge McKinney’s order in a CPLR article 78 proceeding in the nature of prohibition against Judge McKinney and Bradwell. Supreme Court granted the article 78 petition and prohibited Judge McKinney from enforcing his order. The Appellate Division modified Supreme Court’s ruling, holding that prohibition was an inappropriate remedy, and dismissing the proceeding as against Bradwell. The Appellate Division held, however, that a declaratory remedy was appropriate, and converted the proceeding to a declaratory judgment action. Agreeing with Supreme Court on the merits, the Appellate Division declared “that Judiciary Law § 500 does not mandate that a county commissioner of jurors provide a defendant in a criminal action in city court with a panel of prospective jurors comprised solely of residents of the city” (28 AD3d 153, 160 [4th Dept 2006]). We now affirm.

Discussion

I

The Appellate Division correctly held that the issue presented here is properly raised not in an article 78 proceeding, but in a declaratory judgment action.

A writ of prohibition against a judge may be issued “only when a court . . . acts or threatens to act without jurisdiction in a matter of . . . which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction” (Matter of State of New York v King, 36 NY2d 59, 62 [1975]). Prohibition cannot be used merely to correct errors of law, “however egregious and however unreviewable” (id.). Here, Judge McKinney had jurisdiction over the criminal proceeding against Bradwell, and did not exceed his authorized powers by striking the jury panel, or by directing Commissioner Oglesby to submit a new panel composed of city residents. A judge presiding at a criminal trial clearly has the power to strike a panel if he finds it to be unlawfully selected, and when he does so it is not an abuse of his authority to direct that a lawfully-selected panel be furnished (see CPL 270.10 [2]). Thus Judge McKinney’s order gave no ground for issuing the extraordinary writ of prohibition.

It is appropriate, however, to resolve the dispute over the correctness of Judge McKinney’s order by a declaratory judgment. Lawsuits against judges should not be common, but there are times, of which this is one, where they are necessary to resolve important issues that could otherwise never reach an appellate court (Matter of Morgenthau v Erlbaum, 59 NY2d 143 [1983]). Judge McKinney has decided that criminal juries in City Courts must be composed of city residents only; it is clear that he will apply that ruling not only in Bradwell’s case, but in future cases, and thus the ruling will have “an obvious effect extending far beyond the matter pending” (id. at 152). If the ruling is wrong (as we decide below it is), Commissioner Oglesby and the District Attorney should not be barred from asking other courts to correct the error. We therefore affirm the conversion of the article 78 proceeding to a declaratory judgment action, and proceed to the merits.

II

The controlling statute is Judiciary Law § 500, which provides in relevant part:

“It is the policy of this state that all litigants in the courts of this state entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross-section of the community in the county or other governmental subdivision wherein the court convenes” (emphasis added).

While section 500 clearly does not command that all juries be selected county-wide, it seems to imply that selection from the county will be the norm, to which exceptions are possible. The same inference can be drawn from other statutes that affect the selection of jurors. Judiciary Law § 502 (a) establishes the office of Commissioner of Jurors “for each county in the state” except counties in New York City, where the duties of a commissioner of jurors are performed by the county clerks. Judiciary Law § 506 requires the Commissioner of Jurors to “cause the names of prospective jurors to be selected at random from . . . lists of the residents of the county.” Judiciary Law § 510 (1) provides that to qualify as a juror a person must be “a citizen of the United States, and a resident of the county.” And Judiciary Law § 520 provides that trial jurors may serve “in any term or part of the same court. . . or in any other court in the same county.” We conclude from these statutes that it is ordinarily permissible for a Commissioner of Jurors to select jurors county-wide, where no statute or regulation provides otherwise (cf. People v Shedrick, 66 NY2d 1015 [1985] [Judiciary Law provisions did not invalidate jury districts within a county that had been created pursuant to earlier legislation]).

There are statutes and regulations that call for selection of jurors other than on a county-wide basis, but none of them is applicable to this case. A regulation of the Office of Court Administration provides for lists of Town and Village Court jurors “who reside within the geographical jurisdiction of such court, or within such geographical area from which the court is authorized by law to summon jurors” (22 NYCRR 128.7 [a]). Flexibility is thus given to Town and Village Courts, which may be located far from urban areas; jurors in such courts may be spared the necessity of traveling from all over the county to the town or village. Flexibility is also given by Uniform Justice Court Act § 1306, which provides that Village Court jurors may be empaneled “from the list of jurors used in the town court of the town in which the village is situated.” But neither the Legislature nor OCA has provided for City Court jurors to be empaneled from lists of city residents. City Courts are often located (as the Syracuse City Court is) near courts of county-wide jurisdiction, and it has apparently been found convenient for them to draw on the same county-wide lists of jurors.

Commissioner Oglesby was therefore violating no law or regulation when he furnished a panel drawn from the county as a whole for a City Court trial. And we find no merit in the suggestion that his procedure violated Bradwell’s constitutional right to a “jury drawn from a fair cross section of the community” (Taylor v Louisiana, 419 US 522, 527 [1975]). We know of no authority, and none has been cited to us, suggesting that the “community” from which a jury is selected must be identical to the area over which the court has jurisdiction. Nor do logic or fairness support such a constitutional requirement. Indeed, that requirement would sometimes produce less fairness, assuming fairness consists in having cases tried by jurors who live near the defendant. It is undisputed that felony cases in Onondaga county, including those brought against Syracuse residents, are properly tried in County Court before jurors selected county-wide. If all City Court jurors had to be Syracuse residents, the likely result would be to divert some Syracuse jurors from felony trials to misdemeanor trials in City Court — to the disappointment of those Syracuse defendants in felony cases who would prefer jurors from their home town.

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

Judges Ciparick, Rosenblatt, Grapfeo and Read concur; Chief Judge Kaye and Judge Pigott taking no part.

Order affirmed, without costs.


source: Caselaw Access Project

author:
Rosenblatt, J.
      Graffeo, J.

license: Public Domain

text:
    [859 NE2d 473, 825 NYS2d 667]
    In the Matter of Food Parade, Inc., Doing Business as Greenfield Shoprite, Respondent, v Office of Consumer Affairs of County of Nassau et al., Appellants.
    Argued September 14, 2006;
    decided October 24, 2006

      POINTS OF COUNSEL

      Loma B. Goodman, County Attorney, Mineóla (Peter J. Clines of counsel), for appellants.
    I. The Appellate Division decision ignores controlling principles of consumer protection law and leaves consumers vulnerable to the deceptive sale of expired goods. (Matter of Pathmark Stores v Office of Consumer Affairs of County of Nassau, 1 AD3d 520; Reusens v Gerard, 160 App Div 625, affd sub nom. de Ridder v Gerard, 221 NY 665; FTC v Colgate-Palmolive Co., 380 US 374; FTC v Algoma Lumber Co., 291 US 67; Vallery v Bermuda Star Line, 141 Misc 2d 395; People v Volkswagen of Am., 47 AD2d 868; Guggenheimer v Ginzburg, 43 NY2d 268; McDonald v North Shore Yacht Sales, 134 Misc 2d 910; 23 Realty Assoc. v Teigman, 213 AD2d 306; Maldonado v Collectibles Intl., Inc., 969 F Supp 7.) II. The decision upsets the traditional deference accorded to administrative determinations by this Court and other judicial departments. (Matter of 172 E. 122 St. Tenants Assn. v Schwarz, 73 NY2d 340; Seittelman v Sabol, 91 NY2d 618; Matter of Elcor Health Servs. v Novello, 100 NY2d 273; Matter of Marzec v DeBuono, 95 NY2d 262; Matter of American Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393; NLRB v Hearst Publications, Inc., 322 US 111; Matter of Nelson v Roberts, 304 AD2d 20; Matter of Dunn Appraisal Co. v Melton, 79 AD2d 707; Matter of Howard v Wyman, 28 NY2d 434; Matter of Louis Harris & Assoc. v deLeon, 84 NY2d 698.)

      Rivkin Radler LLP, Uniondale (.Merril S. Biscone, Evan H. Krinick and Michael P. Versichelli of counsel), for respondent.
    I. The Supreme Court’s order should be affirmed in light of the fact that the determination of the Office of Consumer Affairs was arbitrary, capricious, irrational and without jurisdiction. (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Borenstein v New York City Employees’ Retirement Sys., 88 NY2d 756; Matter of Maryhaven Ctr. of Hope v Wing, 251 AD2d 413, 92 NY2d 889; Matter of Valle v Buscemi, 233 AD2d 334; Matter of 4M Holding Co. v Town Bd. of Town of Islip, 185 AD2d 317, 81 NY2d 1053; Matter of VR Equities v New York City Conciliation & Appeals Bd., 118 AD2d 459; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347; Kamhi v Town of Yorktown, 74 NY2d 423; Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372; Consolidated Edison Co. of N.Y. v

      Town of Red Hook, 60 NY2d 99.) II. The instant proceeding was not premature. (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52; Lehigh Portland Cement Co. v New York State Dept. of Envtl. Conservation, 87 NY2d 136; Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 301 AD2d 845; Matter of Parkway Hosp. v Axelrod, 178 AD2d 644, 80 NY2d 921; Matter of Good Samaritan Hosp. v Axelrod, 150 AD2d 775, 75 NY2d 703; Bankers Trust Corp. v New York City Dept. of Fin., 301 AD2d 321, 99 NY2d 507.)

      Eliot Spitzer, Attorney General, New York City (Daniel Smirlock, Laura Etlinger, Jane M. Azia and Thomas G. Conway of counsel), amicus curiae.
    I. Deceptive practices laws are properly construed to include the sale of expired products. (Blue Cross & Blue Shield of N.J., Inc. v Philip Morris USA Inc., 3 NY3d 200; Karlin v IVF Am., 93 NY2d 282; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314; New York v Feldman, 210 F Supp 2d 294; Maldonado v Collectibles Intl., Inc., 969 F Supp 7; Matter of State of New York v Maiorano, 189 AD2d 766; Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330; Small v Lorillard Tobacco Co., 94 NY2d 43; Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20; People v Apple Health & Sports Clubs, 206 AD2d 266, 84 NY2d 1004.) II. General Business Law §§ 820 and 821 do not preempt the County of Nassau’s efforts to regulate the sale of expired over-the-counter drugs. (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91; People v De Jesus, 54 NY2d 465; Hertz Corp. v City of New York, 80 NY2d 565; New York State Club Assn. v City of New York, 69 NY2d 211; Myerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250; People v Lewis, 295 NY 42; People v Judiz, 38 NY2d 529.)
   OPINION OF THE COURT

Rosenblatt, J.

Many consumer goods bear expiration dates, as required by law. In the case before us, a supermarket displayed a number of products bearing expired dates. We must decide whether this is a deceptive trade practice within the meaning of the Nassau County Administrative Code. We hold that offering such products for sale is not deceptive unless the retailer alters or disguises the expiration dates. Without doubt, the Legislature may prohibit and punish the sale of certain outdated or stale products. We cannot, however, fit such sales or displays into the code’s “deceptive trade practice” proscription.

Local Law No. 2-1970 of the County of Nassau, adding Nassau County Administrative Code, chapter XXI, title D, § 21-10.2 (the Act), reads as follows, in pertinent part:

“1. Unfair Trade Practices Prohibited . . .
“(a) . . . No person shall engage in any deceptive or unconscionable trade practice in the sale ... or in the offering for sale ... of any consumer goods . . .
“2. Definitions . . .
“b. ‘Deceptive trade practice.’ Any false ... or misleading oral or written statement, visual description or other representation of any kind, which has the capacity, tendency or effect of deceiving or misleading consumers and is made in connection with the sale . . . or . . . the offering for sale ... of consumer goods .... [Deceptive trade practices include but are not limited to:
“(1) representations that: . . .
“(d) goods or services are of [a] particular standard, quality, grade, style, or model, if they are of another.”

After an investigation, the Nassau County Office of Consumer Affairs cited petitioner (Shoprite) for displaying 144 products with expired manufacturers’ dates. The products included vitamins, baby formula, nasal decongestant and tanning oil. Following an administrative hearing, the agency fined Shoprite $3,600.

Shoprite brought a CPLR article 78 proceeding challenging the agency’s determination. Supreme Court concluded that the agency acted without a sound basis in reason and that its determination lacked a reasonable basis in law. The court held that Shoprite made no misrepresentation and committed no deceptive act by merely displaying for sale items that were plainly marked as outdated. The court annulled the agency’s determination. The Appellate Division affirmed, ruling that Shoprite did not misrepresent the quality of the goods, and noting that each item was marked by the manufacturer with an unaltered and unconcealed expiration date. We now affirm.

The agency argues that in displaying expired products for sale, the supermarket misled consumers by making an “implied representation” that the items were unexpired. That could well be true if the items were undated. Here, however, the dates were expressly represented, and a contrary conclusion as to the age of the items cannot be drawn by implication, so as to form the basis for a penalty. In short, the agency cannot ascribe to Shoprite an implied representation at odds with what undisputedly appears in writing.

General Business Law § 820 is instructive. Its enactment followed a report by the Attorney General, whose office conducted an investigation to determine whether manufacturers and retailers of over-the-counter drugs were complying with federal and state expiration requirements. The investigation uncovered numerous instances in which over-the-counter drugs were openly outdated and others in which retailers hid the dates by covering them with price labels.

The state statute does two things. First, section 820 (1) provides that it is unlawful for any retailer “to knowingly sell or offer for sale, any drug sold over-the-counter without the need of a prescription, later than the date, if any, marked upon the label as indicative of the date beyond which the contents cannot be expected beyond reasonable doubt to be safe and effective.” The enactment does not characterize the practice as deceptive, and the statute does not require that it be so. The law simply bans such sales or offerings.

Second, section 820 (2) deals with deception by making it an unlawful practice for any retailer “to knowingly alter, mutilate, destroy, obliterate or remove by means of a price sticker or otherwise the whole or any part of the expiration date displayed on the label or packaging of any over-the-counter drug.” Thus, the statute covers both the sale (or offer) of openly outdated drugs and the misleading or deceptive practice of concealing dates. By contrast, the Nassau County legislation before us prohibits only misleading and deceptive practices.

Here, there is no claim that the dates were in any way obscured, nor does the Nassau County Act prohibit the sale of expired over-the-counter drugs or any other products. It does prohibit misleading or deceptive sales or displays, but we are unable to conclude that the sale or display of an item plainly (out)dated is deceptive or misleading.

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

Graffeo, J.

(dissenting). Consumer protection laws such as the Nassau County Unfair Trade Practices Act are intentionally worded broadly to address the myriad of unfair and misleading practices facing consumers in the marketplace. In this CPLR article 78 proceeding, I cannot say that the Nassau County Office of Consumer Affairs acted irrationally or arbitrarily when it determined that Shoprite’s practice of leaving expired over-the-counter drugs, baby formula, vitamins, sunblock and other health-care products on its store shelves for sale to consumers was misleading under the circumstances of this case. I therefore disagree with the majority’s conclusion that the sale of healthcare products bearing expired dates of effectiveness did not constitute a deceptive practice.

The Nassau County Unfair Trade Practices Act, like its federal and state counterparts, regulates a wide array of conduct affecting consumers. It prohibits “deceptive trade practice[s],” which are defined as

“[a]ny false, falsely disparaging, or misleading oral or written statement, visual description or other representation of any kind, which has the capacity, tendency or effect of deceiving or misleading consumers and is made in connection with the sale, lease, rental or loan of consumer goods or services” (Nassau County Administrative Code § 21-10.2 [2] [b]).

The local law further clarifies that a deceptive practice includes the “failure to state a material fact if such . . . failure deceives or tends to deceive” (Nassau County Administrative Code § 21-10.2 [2] [b] [3]).

The language used by the Nassau County Legislature is similar to that employed by Congress and the New York State Legislature in federal and state consumer protection laws. Since 1938, Congress has precluded “unfair or deceptive acts or practices in . . . commerce” (15 USC § 45). In New York, the State Attorney General is authorized to bring an action against any person who engages in “any deception, misrepresentation, concealment, suppression, false pretense, false promise or unconscionable contractual provisions” (see Executive Law § 63 [12]). General Business Law § 349 (a) further declares “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service” to be unlawful, allowing a private right of action by an injured consumer (General Business Law § 349 [h]) or an enforcement action by the State Attorney General (General Business Law § 349 [b]). More specifically, it is unlawful under General Business Law § 820 for a retailer to knowingly sell or offer for sale expired over-the-counter drugs. The Appellate Division correctly concluded that these provisions do not preempt the Nassau County Unfair Trade Practices Act (see Hertz Corp. v City of New York, 80 NY2d 565 [1992], cert denied 510 US 1111 [1994]; Matter of Holtzman v Oliensis, 91 NY2d 488 [1998]). To the contrary, as the Attorney General notes in his amicus brief, the local law complements federal and state consumer protection laws.

This Court has broadly construed general consumer protection laws to effectuate their remedial purposes, applying the state deceptive practices law to a full spectrum of consumer-oriented conduct, from the sale of “vanishing premium” life insurance policies (see Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 344 [1999]) to the provision of infertility services (see Karlin v IVF Am., 93 NY2d 282 [1999]). We have repeatedly emphasized that General Business Law § 349 and section 350, its companion, addressed specifically to false advertising,

“apply to virtually all economic activity, and their application has been correspondingly broad . . . The reach of these statutes provide[s] needed authority to cope with the numerous, ever-changing types of false and deceptive business practices which plague consumers in our State” (Karlin, 93 NY2d at 290-291 [internal quotation marks and citations omitted]).

And it is not always necessary for legislatures to supply administrative agencies with

“rigid formulas in fields where flexibility in the adaptation of the legislative policy to infinitely variable conditions constitute^] the very essence of the programs. Rather, the standards prescribed by the Legislature are to be read in light of the conditions in which they are to be applied” (Matter of Tommy & Tina, Inc. v Department of Consumer Affairs of City of N.Y., 95 AD2d 724, 724 [1st Dept 1983] [internal quotation marks and citations omitted], affd for reasons stated 62 NY2d 671 [1984]).

This is particularly true in the arena of consumer protection where “the proscriptions . . . are flexible[ ] to be defined with particularity by the myriad of cases from the field of business (FTC v Colgate-Palmolive Co., 380 US 374, 385 [1965] [internal quotation marks and citation omitted]). Deference to the agency charged with enforcing consumer protection laws is warranted for, “as an administrative agency which deals continually with cases in the area, the [agency] is often in a better position than are courts to determine when a practice is ‘deceptive’ ” (id.).

In determining what types of conduct may be deceptive practices under state law, this Court has applied an objective standard which asks whether the “representation or omission [was] likely to mislead a reasonable consumer acting reasonably under the circumstances” (Gaidon, 94 NY2d at 344 [internal quotation marks and citations omitted]; see Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 26 [1995]), taking into account not only the impact on the “average customer” but also on “the vast multitude which the statutes were enacted to safeguard — including the ignorant, the unthinking and the credulous who, in making purchases, do not stop to analyze but are governed by appearances and general impressions” (Guggenheimer v Ginzburg, 43 NY2d 268, 273 [1977]).

In my view, the determination that Shoprite’s practice of offering expired products for sale to the public was deceptive should have been sustained. First, there is nothing novel about the County’s conclusion that the sale of expired products can be deceptive. Since at least 1985 — prior to the enactment of General Business Law § 820 — the State Attorney General has viewed the sale of expired over-the-counter drugs alongside unexpired drugs to be a deceptive trade practice because “[s]uch conduct has the tendency and capacity to mislead purchasers in the belief that such drugs are effective when such may not be the fact” (Expiration Dating of Over-The-Counter Drugs in New York, 1985 Attorney General’s Survey Report, at 11 [hereinafter Expiration Dating]). Nassau County has apparently interpreted its deceptive practices law as applying to expired over-the-counter drugs since at least 1990 (see Long Island Drug Chains Cited For Having Stale OTCs, Drug Store News, Nov. 19, 1990, 1990 WLNR 3114165).

Second, the interpretation given the local law by the Office of Consumer Affairs, the agency charged with administering it, is reasonable and consistent with the plain language of the provision. The Nassau County local law clarifies that a deceptive practice includes the “failure to state a material fact if such . . . failure deceives or tends to deceive” (Nassau County Administrative Code § 21-10.2 [2] [b] [3]). From an objective standard, the fact that baby formula, an over-the-counter drug, or a vitamin has expired is a material fact since it would bear on a reasonable consumer’s decision to purchase the product. Put another way, faced with the choice of purchasing an unexpired product or an expired product for the same cost, a reasonable consumer would undoubtedly purchase the unexpired product.

The Federal Trade Commission requires that expiration dates be included on such products precisely because their efficacy diminishes over time and the products are less effective after the expiration date has passed. Even Shoprite conceded in its petition that expiration dates are included “[t]o assure that a drug product meets applicable standards of identity, strength, quality and purity at the time of sale.” This concern is especially acute in the case of baby formula because “[t]he nutritional quality of infant formulas . . . deteriorates with time” (48 Fed Reg 31880, 31883 [1983]) and the product is used by infants, arguably the most vulnerable members of society. If administered after its effective date, infant formula may not supply needed nutrients and, in this respect, poses a particular danger to unwary consumers who may believe their children are receiving adequate nutrition when, in fact, they are not. Here, for example, Shoprite was cited for offering Carnation baby formula for sale months after product expiration dates had passed.

Under state law, when a retailer places a product on the shelf for sale to a consumer, it impliedly warrants that the product is fit for its intended uses (see UCC 2-314 [2] [c]). It was therefore not irrational for the County to conclude that, when a product may not actually be fit for its intended uses because it has expired, its placement on the shelf alongside unexpired products, and without any statement alerting consumers that its fitness cannot be guaranteed, amounts to a misleading practice. A reasonable consumer would presume that a retailer would not continue to display items on its shelves that may no longer be effective, even if used appropriately.

The Office of Consumer Affairs rationally determined that the fact that Shoprite did not conceal the expiration dates did not shield it from liability under the local law. Shoprite acknowledged in its papers that the manufacturers’ expiration dates at issue were tiny markings on the bottoms of packages that were sometimes made by a stamped impression, without contrasting ink, and were often difficult to read. In the words of Shoprite’s president, “some of the dates [on the products at issue] were so illegible that no reasonable person could be expected to read these dates” and some “needed a magnifying glass in order to be read.”

The manufacturers’ expiration marks at issue were unobtrusive and unlikely to attract the attention of the average consumer. In this respect, they were akin to “small print” disclaimers on advertisements, which may be insufficient to overcome a misleading overall impression in the context of a deceptive practices claim (see e.g. Gaidon, 94 NY2d at 345). For this reason, I believe that the Office of Consumer Affairs rationally rejected Shoprite’s argument that, because careful consumers could individually check product expiration dates, it was relieved of any obligation to cull expired products from its shelves. The consumer protection laws are designed to protect all consumers — not just discerning, unhurried and meticulous shoppers. Perhaps a reasonable consumer can be expected to check the expiration dates on perishable items such as milk or meat (which, in any event, are generally not as unobtrusive as the marks at issue in this case), but the Office of Consumer Affairs could rationally conclude that many do not consistently inspect expiration dates on more durable items like cold medicine, sunblock and baby formula.

To be sure, the County’s interpretation of its deceptive practices law places a responsibility on retailers to inspect shelves and remove expired products. But the burden imposed is not onerous, as is evident from the facts of this case. Soon after Shoprite was cited by Nassau County, it instituted a monthly procedure to remove expired and nearly-expired products from its shelves. When weighed against the potential for misleading consumers, the imposition of this obligation on retailers (who routinely restock and reorganize their shelves for other reasons) is rational.

I would reverse the order of the Appellate Division and reinstate the determination of the Nassau County Office of Consumer Affairs.

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

Order affirmed, with costs.

      . The Appellate Division appears to have rested its holding, in part, on grounds of due process and vagueness. Our affirmance is based exclusively on the plain language of the Act.

      . Expiration Dating of Over-The-Counter Drugs in New York, Survey Report by Attorney General Robert Abrams, January 1985.

       In fact, although at that time no state statute specifically stated that the sale of expired drugs was a misleading practice, in 1985 Attorney General Abrams took regulatory action against five major retailers under the auspices of Executive Law § 63 (12) and General Business Law § 349, assessing a total of $42,500 in costs against companies who carried expired products on their shelves for sale to consumers (see Expiration Dating at 5). The Attorney General later pursued legislation directed at the sale of expired over-the-counter drugs (leading to the enactment of General Business Law § 820 in 1986), taking that action not because he lacked authority to regulate the conduct under the general consumer protection statutes but to acquire authority to impose a higher penalty against violators ($500 per violation pursuant to General Business Law § 821 [1]; see Expiration Dating at 6). Notably, the retailers did not challenge the Attorney General’s authority to regulate such sales but instead agreed to change their stocking procedures. Several other state Attorneys General have similarly pursued enforcement actions against retailers for selling expired over-the-counter drugs, baby formula and other products (see Division of Consumer Affairs Announces Settlement with Duane Reade, US State News, Aug. 25, 2006, 2006 WLNR 14945955 [New Jersey]; Rite Aid Outlines Plans After Expired Products Suit, Drug Store News, June 28, 1999, 1999 WLNR 5571890 [California]).


author: Chief Judge Kaye.

text:
    [859 NE2d 480, 825 NYS2d 674]
    In the Matter of Linda Angello, as Commissioner of Labor, Respondent, v Labor Ready, Inc., et al., Appellants, and Industrial Board of Appeals, Respondent.
    Argued October 17, 2006;
    decided November 16, 2006

      POINTS OF COUNSEL

      Morgan, Lewis & Bockius LLP, Miami, Florida, Washington, D.C. and New York City (Anne Marie Estevez, admitted pro hac vice, Samuel S. Shaulson and Peter Buscemi of counsel), and Schnader Harrison Segal & Lewis LLP, New York City (M. Christine Carty and Jane H. Kauh of counsel), for appellants.
    I. The Appellate Division failed to apply the proper standard of review, under which the Industrial Board of Appeals decision should be upheld since it is reasonable, supported by substantial evidence in the record, and a proper exercise of the agency’s expertise. (Matter of Jennings v New York State Off. of Mental Health, 90 NY2d 227; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of CUNY-Hostos Community Coll. v State Human Rights Appeal Bd., 59 NY2d 69; Matter of Hudacs v Frito-Lay, Inc., 214 AD2d 940, 90 NY2d 342; Matter of McGowan v Guy, 304 AD2d 666; Matter of Hudacs v Village of Watkins Glen, 208 AD2d 181; Matter of Hudacs v Kimmins Abatement Corp., 206 AD2d 803; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539.) II. There is no basis to reverse the Industrial Board of Appeals’ rational and expert determination that Labor Ready does not directly deduct the cash dispensing machine transaction fees from its employees’ earned wages in violation of section 193 (1) of the Labor Law. III. There is no basis to reverse the Industrial Board of Appeals’ rational determination that the cash dispensing machine fees are not payments from earned wages required by the employer in violation of section 193 (2) of the Labor Law, but rather are incurred in separate transactions through the voluntary choice of the employees. (Matter of Hudacs v Frito-Lay, Inc., 90 NY2d 342.) IV An alternative basis for reversing the Appellate Division’s decision is that the cash dispensing machine transaction fees are assessed and collected by Labor Ready Properties, which does not employ any temporary workers and is not a party to these proceedings. (Matter of Metropolitan Assoc. Ltd. Partnership v New York State Div. of Hous. & Community Renewal, 195 AD2d 307.)

      Eliot Spitzer, Attorney General, New York City (Jennifer Brand, Caitlin J. Halligan, Nancy A. Spiegel, Patrick Barnett-Mulligan, M. Patricia Smith and Devin Rice of counsel), for respondent.
    I. The plain language of Labor Law § 193 (1) prohibits an employer from deducting a fee from an employee’s wages for cashing a payment voucher. (Matter of Hudacs v Frito-Lay, Inc., 90 NY2d 342; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Killian [General Motors Corp., Delco Chassis Div.— Sweeney], 89 NY2d 748; Weingarten v Board of Trustees of N.Y. City Teachers’ Retirement Sys., 98 NY2d 575; Matter of Gruber [New York City Dept. of Personnel — Sweeney], 89 NY2d 225; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539; Matter of Jennings v New York State Off. of Mental Health, 90 NY2d 227; Matter of McGowan v Guy, 304 AD2d 666; Matter of Hudacs v Village of Watkins Glen, 208 AD2d 181; Matter of Hudacs v Kimmins Abatement Corp., 206 AD2d 803.) II. If the deduction of fees is a separate transaction, the fees violate Labor Law § 193 (2). (Matter of Hudacs v Frito-Lay, Inc., 90 NY2d 342.) III. The cash dispensing machine fees are deducted by the “employer” of the temporary employees. (Van Valkenburgh, Nooger & Neville v Hayden Publ. Co., 30 NY2d 34, 409 US 875; Key Intl. Mfg. v Morse/Diesel, Inc., 142 AD2d 448.)
   OPINION OF THE COURT

Chief Judge Kaye.

Labor Ready, Inc., a national temporary employment firm, and its subsidiary Labor Ready Northeast, Inc., operate nine branches in western New York. Labor Ready supplies daily workers who perform manual labor — for example, stocking shelves or doing yard work — for businesses and individual customers. In 2002 Labor Ready had 7,000 customers in New York State and employed approximately 18,000 unskilled and semiskilled laborers whose average salary was $6.41 per hour.

To compete with other temporary employment firms, Labor Ready pays its employees at the end of every work day — the company’s slogans are “Work Today, Paid Today” and “Work Today, Cash Today.” Typically, the temporary employees coming to Labor Ready do not have bank accounts and are unable to sustain themselves financially on a weekly basis. Since many live in shelters or rooming houses where they have to pay daily, they choose to go to Labor Ready because they know that they will be paid at the end of the day.

Upon completion of a job, a worker brings a supervisor a work ticket and is offered the option of being paid by check or by cash voucher. Those who choose a payroll check each day can cash it wherever they wish, including at a Fleet Bank for no charge. Neighborhood check-cashing facilities in Buffalo charge a fee of about 50 cents to one dollar; however, a worker may prefer not to receive cash at these places where other people may loiter.

Employees who opt for a cash voucher — redeemable only at a Labor Ready branch — receive a paper that looks just like a payroll check, but the signature space is voided and the voucher contains a PIN number that the employee must use at a cash dispensing machine (CDM). The voucher lists the gross wages, withholdings and the Labor Ready fee for redeeming cash. Thus, the actual value of the voucher is the worker’s net wages minus the transaction fee. Labor Ready charges the worker one dollar plus any change that would have been part of the day’s wages. If, for example, a worker’s after-tax wages were $44.85, the voucher would be for $43, and upon accessing the CDM, the worker would receive $43 in cash.

Labor Ready makes multiple disclosures regarding the fees. The precise fee is on the voucher itself. Notice is also on pamphlets at Labor Ready branches, on a sign over each CDM and on the CDM screen during the transaction. Furthermore, during the transaction a worker may elect to return the voucher in exchange for a paycheck, which will be issued quickly.

The CDMs were first leased and operated by Labor Ready and in 2000 assigned to Labor Ready Properties, Inc., another subsidiary, which purchases maintenance services from unrelated companies, such as Brinks, and ultimately receives the transactional fees. In New York in 2002, on average 67% of the temporary employees received their wages by cash voucher. Labor Ready Properties generated $17,800 in revenue at Buffalo branches between 1999 and 2000 and $8.3 million in gross revenue nationally in 2000 from CDM fees charged to the temporary employees.

Having received complaints, the State Department of Labor in 1999 investigated Labor Ready’s Buffalo branches for alleged unlawful deductions from wages for transportation and equipment costs and for deductions of CDM fees. In August 2002 the Department issued an amended order to comply with Labor Law article 6, directing payment to multiple named claimants. The parties settled the transportation and equipment cost deduction issues, with Labor Ready agreeing to pay more than $38,000 in restitution, interest and penalties. The parties were, however, unable to settle the issue concerning the CDM fees and stipulated that the amount of CDM fees generated at the Buffalo branches was approximately $17,800.

Upon review, the Industrial Board of Appeals (IBA) found no violation of Labor Law § 193 (1). Determining that the CDM charge against the employee’s wages was a separate transaction under Labor Law § 193 (2), and entirely voluntary, the IBA found no violation. The IBA added, however, that it did “not in any sense condone” Labor Ready’s practice of “extracting what is, relative to [the workers’] daily wages, an extravagant amount of money to cash their vouchers,” and repeated that the fees seemed “excessive” when compared with the minimal amount of daily pay these laborers customarily received.

The Department then commenced this CPLR article 78 proceeding to annul the IBA’s determination. Supreme Court transferred the proceeding to the Appellate Division, which reversed. Finding the matter one of statutory interpretation rather than agency deference, the Court concluded that the fee deduction and the payment of wages were inseparably connected and interrelated, and that the direct deduction of a fee for the service of providing cash wages was a violation of Labor Law § 193. We now affirm.

Analysis

As a threshold matter, we conclude that the Appellate Division applied the proper standard of review. Where, as here, the words are clear and the question simply involves proper application of a statute, there is little basis to rely on any special competence or expertise of the administrative agency (see Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 62 NY2d 539, 545 [1984]). We further agree with the Appellate Division that the IBA’s interpretation directly contravened the plain language of Labor Law § 193.

The purpose of Labor Law article 6 is “to strengthen and clarify the rights of employees to the payment of wages” (see Truelove v Northeast Capital & Advisory, 95 NY2d 220, 223 [2000], citing Mem of Indus Commr, June 3, 1966, Bill Jacket, L 1966, ch 548, at 4; see also Gottlieb v Kenneth D. Laub & Co., 82 NY2d 457, 461 [1993]). Labor Law § 193 (1) (b), part of article 6, explicitly prohibits an employer from deducting monies from the wages of an employee except as required by law or as “expressly authorized in writing” by and “for the benefit of the employee.” The statute, moreover, specifies the deductions that an employee may authorize: “payments for insurance premiums, pension or health and welfare benefits, contributions to charitable organizations, payments for United States bonds, payments for dues or assessments to a labor organization, and similar payments for the benefit of the employee.”

A “deduction” literally is an act of taking away or subtraction. While under section 193 (1) (b) an employee may authorize an employer to take away or subtract wages, the clear language of this subdivision limits the types of deductions to those enumerated and to “similar payments.” Labor Ready’s fee for the service of providing a voucher for cash is a direct deduction of monies from wages. Even though the employee has the option of receiving a check, once the employee chooses the voucher the employer subtracts money from the amount received as wages.

Labor Ready does not argue that the deductions are similar payments to those the statute authorizes, for the money subtracted from the voucher is equivalent to service fees, not payments to a union or such organizations dealing with health, pensions or savings bonds. Nor can the charges be construed as a “benefit” to the laborers because all the authorized deductions listed in section 193 for the employee’s benefit are monetary or supportive. The only benefit to the worker here is one of convenience. That, however, is not a “benefit” covered by the statute (cf. Marsh v Prudential Sec., 1 NY3d 146 [2003] [investment banker’s deferral of funds is a benefit]).

We agree with the Appellate Division that under subdivision (1) (b), an employee’s act of receiving a voucher and cashing it at an on-site CDM is one transaction. Since the voucher already has the fee subtracted and can be cashed only at a Labor Ready CDM, the deduction is not disconnected from the payment of wages. Furthermore, since the voucher is not negotiable, the employee receives wages when he or she receives cash from the machine. Thus, the receipt of the voucher and subsequent receipt of cash cannot be viewed as two separate transactions.

Labor Ready asserts that Labor Law § 193 (2) governs because workers are simply paying a fee for service, and a worker’s receiving the voucher and then cashing it are separate transactions. First, section 193 (2) provides that: “No employer shall make any charge against wages, or require an employee to make any payment by separate transaction unless such charge or payment is permitted as a deduction from wages under the provisions of subdivision one of this section.” This language prohibits an employer from charging against wages or requiring a payment from wages by separate transaction unless the payment is one permitted in subdivision (1) (b). As we have noted, the fee for a cash voucher is not a “similar payment” to those specified.

Second, subdivision (2) was added to the statute in 1974 to “prohibit wage deductions by indirect means where direct deduction would violate the statute” (Mem of State Dept of Labor in Support of L 1974, ch 160, 1974 McKinney’s Session Laws of NY, at 1957). The Legislature sought to end the subterfuge of an employer’s paying full wages but then seeking payment at another time (see Matter of Hudacs v Frito-Lay, Inc., 90 NY2d 342, 348 [1997]). In Frito-Lay, the employer sought, not by deduction from paychecks but by separate action, recoupment of cash that truck deliverers had received from grocery stores. This Court’s decision, however, turned on the definition of “wages” and found that the cash that drivers received upon delivery of goods was owed to the employer and was not part of employee wages. Here by contrast the deduction of the processing fees occurs at the time the wages are paid. While it may appear that Labor Ready is paying the day laborer a full wage only to obtain payment at a later time, the employee never actually receives a negotiable instrument. Implementing the statute as written, we conclude that these deductions are governed by subdivision (1) (b) and violate the statute.

Interpreting section 193 to permit an employer to make deductions from earned income as long as the worker agrees and has the option of receiving full payment could open the door to a new category of deductions that would be illegal if directly deducted but would be lawful if they were an option. The Department provides an example: An employer may offer its employees who work Saturday to Friday the option of receiving their full wages on Friday or advance wages on Wednesday less a five percent “advance payroll processing” fee. Thus, any deduction from wages under section 193 (2) would be legal as long as the employer structures it as a purportedly optional “separate transaction.” In this case, the daily — as opposed to weekly — deductions could multiply the fee several times per week. While Labor Ready’s decision to pay the temporary laborers daily is laudable, subtracting from wages a fee that goes directly to the employer or its subsidiary violates both the letter of the statute and the protective policy underlying it.

The legislative history of section 193 buttresses our reading of the statute. In 1889 and again in 1893, the Legislature passed laws requiring employers to pay employees in cash, not company scrip that could be used only at the “company store,” and prohibiting charges for provisions as offsets to wages (see L 1889, ch 381, § 1; L 1893, ch 717, § 2). Several years later, the Attorney General wrote that a recodification was enacted to protect workers from questionable practices of employers (see 1899 Report of Atty Gen, at 335 [1900]), and the intention of the Legislature was “to absolutely prohibit the sale ... to their employees, upon credit, of groceries, provisions or clothing, with a view to deducting the amount charged for the same from the weekly payments required to be made in cash” (see 1901 Report of Atty Gen, at 152 [1901]).

The next amendment to the statute, codified as Labor Law § 197 in 1921, provided that there could be no “off-set in behalf of the employer against wages” for provisions, clothing and groceries (see L 1921, ch 50). The recodification to the current section 193 (1) in 1966 expressly prohibits direct wage deductions with limited exceptions (see Mem of Indus Commr, June 3, 1966, Bill Jacket, L 1966, ch 548, at 4). A memorandum in support of the bill adding the current subdivision (2) in 1974 states that since agreements to reimburse the employer by separate transaction are “in no sense voluntary,” these were deemed unlawful (see Mem in Support, 1974 McKinney’s Session Laws of NY, at 1957; see also Frito-Lay, 90 NY2d at 346-348). The history of Labor Law § 193 manifests the legislative intent to assure that the unequal bargaining power between an employer and an employee does not result in coercive economic arrangements by which the employer can divert a worker’s wages for the employer’s benefit. Labor Ready’s CDM revenues demonstrate the employer’s benefit from the payments — the inequity that the Legislature sought to prevent.

Labor Ready’s remaining arguments are without merit.

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

Judges Ciparick, Rosenblatt, Graffeo, Read, Smith and Pigott concur.

Judgment affirmed, with costs.


author: Read, J. Chief Judge Kaye

text:
    [859 NE2d 484, 825 NYS2d 678]
    David Policano, Respondent, v Victor T. Herbert, Appellant.
    Argued October 19, 2006;
    decided November 16, 2006

      POINTS OF COUNSEL

      Charles J. Hynes, District Attorney, Brooklyn (Leonard Job-love and Rhea A. Grob of counsel), for appellant.
    Under New York law at the time defendant’s conviction of depraved indifference murder became final, the evidence at defendant’s trial was legally sufficient to establish his guilt of that crime. (People v Feingold, 7 NY3d 288; People v Roe, 74 NY2d 20; People v Register, 60 NY2d 270, 466 US 953; People v Lynch, 95 NY2d 243; People v Ford, 66 NY2d 428; People v Contes, 60 NY2d 620; People v Lee, 35 NY2d 826; People v Borst, 232 AD2d 727; People v Tuck, 87 NY2d 828; People v Chrysler, 85 NY2d 413.)

      Law Offices of Richard Ware Levitt, New York City (Richard Ware Levitt of counsel), for respondent.
    The facts, as a matter of law, do not support a finding of recklessness. (People v Sanchez, 98 NY2d 373; People v Gaines, 83 NY2d 925; People v Rodriguez, 76 NY2d 918; People v Lee, 35 NY2d 826; People v Borst, 232 AD2d 727; People v Suarez, 6 NY3d 202; People v Gallagher, 69 NY2d 525.)
   OPINION OF THE COURT

Read, J.

The United States Court of Appeals for the Second Circuit has posed three certified questions that call upon us to address New York law regarding depraved indifference murder at the time defendant David Policano’s conviction for this crime became final on June 28, 2001, and to answer related questions. We begin by rehearsing the relevant facts and prior proceedings in this case.

I.

On January 21, 1997, Raphaela Robles was standing in front of her apartment building in Brooklyn, talking with defendant. Upon observing them, her boyfriend, Terry Phillips, became “upset,” and he and defendant began “[pjushing, shoving and talking.” As Robles fled upstairs to her third-floor apartment, she turned around and saw Phillips with a pipe. After entering her apartment, she looked out the window and saw defendant bleeding.

Detective Alonzo Hobbs, who was investigating the assault, spoke with defendant in the hospital the same day. Defendant’s head was bandaged, and he appeared to be “very angry” and “hurt from the pain.” Defendant explained to Detective Hobbs that he and Phillips had argued and fought earlier in the day, and that he had knocked Phillips unconscious. Although defendant initially insisted that he would “take care of’ this matter himself and did not want police intervention, he subsequently filed a complaint against Phillips with the police.

Shortly before 8:00 p.m. on January 27, 1997, Jimmy Sprye was in his apartment in Brooklyn, a few blocks away from the intersection of Carlton and Myrtle avenues, when he was visited by his friend Neicy Wright and defendant, whom he had not met before that evening. Defendant and Wright arrived with a “dime bag” of crack, which all three of them smoked. Defendant had bathrobes with him, and he and Wright would leave periodically with bathrobes to sell, and then return to pick up more. Twice, defendant left unaccompanied by Wright. On the first of these two occasions, he appeared nervous when he returned, and told Sprye that someone had been shot on Myrtle Avenue.

That same evening, Phillips and his friend Lonny Stagg arrived at the bus stop at the well-lit corner of Carlton and Myrtle avenues at about 8:40 or 8:45 p.m. Phillips stood at the corner, while Stagg stood within the glass bus shelter, five to seven feet away from Phillips, reading the bus schedule. Stagg then noticed defendant, who was about 20 feet away from him. Defendant was wearing a jacket, which was either navy blue or black with white stripes running down the sleeves.

Seconds later, Stagg heard a gunshot and “took off.” After advancing 50 feet, he wheeled around and saw Phillips holding his arm over his face as if to shield himself. Stagg heard two additional shots as he resumed his flight. He could not see the shooter’s face, which was obscured by a poster in the bus shelter, but he saw the gun in the right hand of someone wearing the same style and color jacket that he had observed on defendant moments earlier. The gun appeared to be three to five feet away from Phillips. When Stagg reached a nearby pizzeria, he yelled for someone to call 911. He then went back outside, and saw the shooter running down Carlton Avenue.

The subsequent autopsy showed that Phillips had been shot twice in the head, once in the neck, and once in the right thigh. According to the medical examiner, the location of the three gunshot wounds to Phillips’s head and neck was consistent with those shots having been fired while Phillips was standing upright and turning. The location of the gunshot wound to Phillips’s thigh was consistent with that shot having been fired after Phillips had fallen to the ground, with the shooter standing near Phillips’s head and aiming toward his feet. The absence of stippling near any of the gunshot wounds showed that they were fired from a distance greater than 12 to 18 inches.

Defendant was indicted for intentional murder (Penal Law § 125.25 [1]) and depraved indifference murder (Penal Law § 125.25 [2]) as well as criminal possession of a weapon in the second degree (Penal Law § 265.03) and criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]). Testifying in his own defense at trial, defendant protested his innocence and presented an alibi.

At the close of the defense case, defendant’s attorney moved to dismiss the count of depraved indifference murder on the ground that there was no evidence that defendant had acted recklessly or wantonly. The trial judge denied the motion. After summations, defendant’s attorney renewed this objection, and the court adhered to its original decision.

The trial judge submitted one count of depraved indifference murder and one count of intentional murder to the jury, but not the weapons charges. Unusually, he instructed the jurors not to consider the count of intentional murder if they first found defendant guilty of depraved indifference murder. After the jury found defendant guilty of depraved indifference murder, the court sentenced him as a second felony offender to a term of imprisonment of 25 years to life.

Defendant appealed, asserting that the evidence was legally insufficient to prove his guilt of depraved indifference murder. The People argued before the Appellate Division that while there was “no question” that defendant fired his gun intentionally rather than accidentally, a rational, trier of fact could have concluded that defendant did so with depraved indifference to the risk of death that he created for “Phillips and any bystander in the public place.” The People also contested defendant’s “claims that multiple gunshot wounds to vital organs necessarily dictate! ] a verdict of intentional murder and render! ] a verdict of depraved indifference murder presumptively insufficient.” Forcefully, the People argued,

“there was evidence that defendant may have had a motive to shoot the victim. Indeed, there is a reasonable view of the circumstantial evidence that defendant intended to kill the victim when he fired.
The jury, however, was called upon to deliberate first upon the alternative count of depraved indifference murder. Because a reasonable trier of fact could easily find that [a] defendant [who] fired his gun in a bus stop on a public street with other people present demonstrated an unmotivated wickedness so great as to be indicative of depravity, the verdict is supported by legally sufficient evidence” (internal quotation marks and citations omitted).

These arguments carried the day. On November 13, 2000, the Appellate Division affirmed defendant’s conviction. “Viewing the evidence in the light most favorable to the prosecution,” the Court found “that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt” (People v Policano, 277 AD2d 331, 331-332 [2d Dept 2000] [citation omitted]). Exercising its broad factual review power, the Appellate Division further pronounced itself “satisfied that the verdict of guilt was not against the weight of the evidence” (id. at 332).

On March 30, 2001, a Judge of our Court denied defendant’s application for leave to appeal (People v Policano, 96 NY2d 786 [2001]). Defendant’s conviction became final 90 days later, on June 28, 2001, when his time for filing a petition for writ of certiorari in the United States Supreme Court expired (see Rules Sup Ct rule 13 [1]; Clay v United States, 537 US 522, 527 [2003]).

Defendant subsequently filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York, in which he asserted that the evidence at trial was insufficient to prove his guilt of depraved indifference murder. On March 26, 2004, the District Court Judge heard oral argument at which defendant appeared pro se by telephone. As the Judge explained in his order of the same date:

“At today’s oral argument . . . , I told the parties that I would deny the petition. Immediately after the argument, however, I learned of a case decided yesterday by the New York Court of Appeals, People v. Gonzalez [1 NY3d 464 (2004)]. In Gonzalez, the Court of Appeals affirmed an opinion by the Appellate Division reversing the defendant’s conviction for depraved indifference murder where the jury had acquitted the defendant of intentional murder and the evidence at trial showed that the defendant had shot his victim in the chest from a distance of six to seven feet, shot the victim again in the head as the victim fell, and finally fired eight more shots into the victim’s prone back and head.”

“In light of Gonzalez,” — which, as the Judge noted, we had handed down the day before — he decided to reconsider his position on whether there was sufficient evidence for a jury to find that defendant had acted with depraved indifference. He directed the court’s clerk to appoint counsel for defendant, and the parties to brief the issue.

Viewing defendant’s case as “largely indistinguishable” from Gonzalez, on September 7, 2004 the District Court concluded that there was insufficient evidence to establish that defendant acted recklessly with respect to Phillips’s death, and so granted the habeas petition (Policano v Herbert, 2004 WL 1960203, *9, 2004 US Dist LEXIS 17785, *25 [ED NY, Sept. 7, 2004]). The People appealed. Defendant was released from custody following the Second Circuit’s denial of a stay pending appeal on December 28, 2004 (Policano v Herbert, 453 F3d 75, 78 [2d Cir 2006]).

On November 15, 2005, the Second Circuit affirmed the District Court, resting principally on People v Gallagher (69 NY2d 525 [1987]), as subsequently “explain[ed] and reaffirm[ed]” in People v Gonzalez and People v Payne (3 NY3d 266 [2004]), which, the court concluded, “represented] not the creation of a new legal principle, but the application of long-settled New York law to new facts” (430 F3d 82, 88 n 1, 93 [2d Cir 2005]). The court agreed with the District Court that “the facts of this case [were] not materially different from those of Gonzalez (430 F3d at 89). On June 21, 2006, the Second Circuit issued a split decision declining en banc consideration of the appeal (Policano v Herbert, 453 F3d 79 [2d Cir 2006, Raggi and Wesley, JJ., dissenting]), and the original three-judge panel certified three questions to us (Policano v Herbert, 453 F3d 75 [2d Cir 2006]). The panel advised us that it did “not intend to limit the scope of [our] analysis or [our] response” to the questions certified, which we were free to expand “to cover any further pertinent issue . . . appropriate to address” (id. at 76).

As for defendant, the People presented this case to a new grand jury. On April 21, 2006, the People filed an indictment charging him with the same two weapon possession counts charged in the original indictment. After defendant’s arraignment on the pending new indictment, he was incarcerated pursuant to a securing order fixing bail in the amount of $100,000. On October 19, 2006, as a result of a decision and order of Supreme Court, the indictment was dismissed and defendant was released from custody.

II.

Certified Question No. 1

“On [June 28, 2001] (the date on which petitioner Policano’s conviction became final), under the law of the State of New York as established by, inter alia, People v. Gallagher [69 NY2d 525 (1987)], where the evidence produced at trial indicated that if the defendant committed the homicide at all, he committed it with the conscious objective of killing the victim, would a jury be permitted to find that the elements of depraved indifference murder were satisfied beyond a reasonable doubt?” (453 F3d at 76.)

In People v Feingold (7 NY3d 288 [2006]), a decision handed down just after this certification, we recounted the history and recent progression of our depraved indifference jurisprudence. As outlined in Feingold, the law of the State of New York in this area was articulated by People v Register (60 NY2d 270 [1983], cert denied 466 US 953 [1984]) and remained static through our decision in People v Sanchez (98 NY2d 373 [2002]), which reaffirmed Register. After Sanchez, a series of decisions — People v Hafeez (100 NY2d 253 [2003]), Gonzalez, Payne and People v Suarez (6 NY3d 202 [2005]) — incrementally “pointed the law in a different direction,” culminating in our explicit overruling of Register and Sanchez in Feingold (7 NY3d at 292, 294; see also People v Swinton, 7 NY3d 776 [2006, Kaye, Ch. J., Ciparick and Graffeo, JJ., concurring in result on constraint of Feingold). Accordingly, to answer this question we must first consider Register and then Sanchez, as these two decisions bracket defendant’s conviction.

Register

Register, who had been drinking heavily all day with a friend, carried a loaded pistol with him and predicted that he was “going to kill somebody tonight” when he and the friend arrived at a crowded bar in the early evening to continue their carousing. Sometime after midnight, Register fired his gun at Mitchell, with whom his friend was arguing, missed him and instead hit and injured Evans, another bar patron who had interceded in the dispute. Register then shot Mitchell in the stomach at close range. As patrons were fleeing the bar and tending the wounded, a third man, Lindsey — a friend or acquaintance of Register’s— walked by and Register, for no apparent reason, turned around and shot him to death.

Register was indicted for both intentional and depraved indifference murder. At trial, his attorney requested jury instructions on the effect of intoxication. While the judge instructed the jurors that they should consider whether Register’s intoxication prevented him from forming an intent to kill, he refused to charge that intoxication could affect the mens rea of depraved indifference murder. The jury acquitted Register of intentional murder and convicted him of depraved indifference murder.

Depraved indifference murder requires that the accused “recklessly” create a “grave” risk of death “[u]nder circumstances evincing a depraved indifference to human life” (Penal Law § 125.25 [2]). Under the Penal Law, a person acts “recklessly” with respect to a proscribed result (here, death) “when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur”; however, “[a] person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto” (Penal Law § 15.05 [3]; see also Penal Law § 15.25 [while intoxication is not a defense to a criminal charge, “evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negative an element of the crime charged”). On appeal, Register contended that depraved indifference murder requires a mens rea greater than simple recklessness — that is, “a different or additional element of mental culpability, namely ‘circumstances evincing a depraved indifference to human life,’ ” which is what heightens the blameworthiness of a reckless killing sufficiently to transform manslaughter into murder; therefore, the trial judge should not have precluded the jury from considering the effect of intoxication on his state of mind {Register, 60 NY2d at 275, 276). We rejected this argument and affirmed Register’s conviction.

We first noted that although “[t]he Penal Law does not expressly define the term ‘element,’ ” it “set[s] forth what the ‘elements’ of an offense are and identifies them, as does the common law, as a culpable mental state (mens rea) and a voluntary act (actus reus),” citing Penal Law § 15.10 (id. at 276).

“Consistent with that provision, the statutory definition of depraved mind murder includes both a mental element (‘recklessly’) and a voluntary act (‘engaging in conduct which creates a grave risk of death to another person’). Recklessness refers to defendant’s conscious disregard of a substantial risk and the act proscribed, the risk creating conduct, is defined by the degree of danger presented. Depraved mind murder resembles manslaughter in the second degree (a reckless killing which includes the requirement that defendant disregard a substantial risk), but the depraved mind murder statute requires in addition not only that the conduct which results in death present a grave risk of death but that it also occur ‘[u]nder circumstances evincing a depraved indifference to human life.’ ” (Id. [citations omitted].)

Specifically, we held in Register that this “additional requirement” — that is, “under circumstances evincing a depraved indifference to human life” — “refers to neither the mens rea nor the actus reus.” (Id.) Indeed, “[i]f it states an element of the crime at all, it is not an element in the traditional sense but rather a definition of the factual setting in which the risk creating conduct must occur — objective circumstances which are not subject to being negatived by evidence of defendant’s intoxication” (id.).

In short, we held that recklessness, pure and simple, is the mens rea for depraved indifference murder, which is “distinguishable from manslaughter ] not by the mental element involved but by the objective circumstances in which the act occurs”; these circumstances define the degree of risk created by the defendant (id. at 278). As a result, “the focus of the offense is not upon the subjective intent of the defendant, as it is with intentional murder, but rather upon an objective assessment of the degree of risk presented by defendant’s reckless conduct” (id. at 277 [citations omitted]).

Sanchez

Sanchez and Range were the boyfriends of two sisters. They encountered each other at a family birthday party for the daughter of Sanchez’s girlfriend. While the couples generally enjoyed a “cordial relationship,” Sanchez and Range exchanged “harsh words ... in a hallway near the foyer entrance of the apartment when Range implied that [Sanchez] was unfaithful to [his girlfriend]” (Sanchez, 98 NY2d at 375). After Range told Sanchez to “step outside,” the only eyewitness to the shooting saw Sanchez walking through a doorway from a hallway “where [two children] were playing in the foyer, away from Range, who was behind the partially opened door. Then she saw [Sanchez] abruptly turn around, fire a gun pointed at Range’s chest and flee. The entire incident was over in a matter of seconds” (id. at 375-376). Range died in the hospital from a wound caused by the single bullet, which was fired not more than 12 to 18 inches from his chest. After a jury trial, Sanchez was acquitted of intentional murder but convicted of depraved indifference murder.

Sanchez argued that the evidence was consistent only with an intentional killing, and thus there was no reasonable view of the evidence under which he could have been found guilty of causing Range’s death recklessly (the requisite mens rea for depraved indifference murder), rather than intentionally. Alternatively, he contended that there was no evidence of “circumstances evincing a depraved indifference to human life.” We disagreed on both scores.

First, viewing the evidence in the light most favorable to the People, the Sanchez court concluded that a rational jury could have “harbor[ed] a reasonable doubt that the homicide of Range was intentional — i.e., that defendant’s conscious objective [was] to cause [Range’s death]” (id. at 377 [internal quotation marks and citation omitted]). “Although the gun was discharged at point-blank range, the bullet only struck Range in his upper left chest” (id.). Further, the jury might “also have taken into account the preexisting good relations between [Sanchez] and Range, and concluded that this was an instantaneous, impulsive shooting — perhaps to disable or frighten Range, rather than to kill him,” and thus “could have found that [Sanchez’s] homicidal level of mental culpability was reckless rather than intentional” (id. at 377-378).

As for Sanchez’s other argument, we concluded that if we “accept[ed] the jury’s determination that the killing of Range was not intentional,” then Sanchez’s

“shooting into [Range’s] torso at point-blank range presented such a transcendent risk of causing his death that it readily [met] the level of manifested depravity needed to establish [depraved indifference murder]. Here, once it rejected intentional murder, the jury . . . could reasonably [have] conclude [d] that [Sanchez’s] conduct was so manifestly destined to result in Range’s death as to deserve the same societal condemnation as purposeful homicide” (id. at 378 [emphasis added and citations omitted]).

We cited Register to support this proposition. As we articulated the same idea elsewhere in the opinion:

“That [Sanchez’s] conduct involved such a high risk of death that it could also lead to the conclusion that it was intentional supports rather than detracts from characterizing it as evincing depraved indifference to human life. . . . [P]urposeful homicide itself is the ultimate manifestation of indifference to the value of human life” (id. at 384 [emphasis added]).

Sanchez epitomized our depraved indifference jurisprudence under the Register regime, the hallmarks of which — at least with respect to fatal one-on-one shootings or knifings — were twofold. First, even though such an attack by its very nature presents compelling circumstantial evidence of intent to cause death, we considered the question of the defendant’s state of mind to be a classic matter for the jury. This strain of thought in our decisional law long predated Register (see e.g. People v Flack, 125 NY 324, 334 [1891] [“However clear the proof may be, or however incontrovertible may seem to the judge to be the inference of a criminal intention, the question of intent can never be ruled as a question of law, but must always be submitted to the jury”]; see also People v Butler, 86 AD2d 811 [1st Dept 1982] [reversing jury verdict convicting defendant of manslaughter in the first degree because evidence that deceased was shot twice at relatively close range, once in the back and once in the head, could only demonstrate intent to kill rather than intent to cause serious injury], revd on dissenting op of Sandler, J., 57 NY2d 664 [1982] [faulting majority for drawing definitive conclusions about intent from fact that bullet entered victim’s head]). As we emphasized in People v Gallagher (69 NY2d 525, 530 [1987]), “[i]t is not for the [court] in the first instance to determine whether defendant acted intentionally or recklessly at the time of the crime. That is the jury’s function.” Relatedly, we also made clear in Gallagher that the trial court must submit counts of intentional and depraved indifference murder to the jury in the alternative. Although the evidence at trial might be susceptible to establishing either mental state, intentional murder and depraved indifference murder “are inconsistent counts as defined in CPL 300.30 (5), because guilt of one necessarily negates guilt of the other” (id. at 529).

Second, the factual setting in which the risk-creating conduct must occur, viewed objectively — Register’s standard for determining whether there are circumstances evincing a depraved indifference to human life — was fulfilled if a defendant’s actions created an almost certain risk of death by, for example, shooting the victim in the head multiple times at close range. As we expressed this concept in Sanchez, where the defendant’s actions created “a transcendent risk” of causing death, “the level of manifested depravity needed to establish [depraved indifference murder]” was “readily” met (Sanchez, 98 NY2d at 378).

Answer to Certified Question No. 1

In light of our case law in this area, the first question is not easily answered as posed. Initially, as already discussed, at the time defendant’s conviction became final, Register — not Gallagher — governed the legal sufficiency of the evidence needed to establish guilt for depraved indifference murder. Before we handed down our post-Sanchez decisions, Gallagher was read as limited to charging procedure (see e.g. People v Keefer, 197 AD2d 915, 916 [4th Dept 1993] [citing Gallagher for the proposition that “the counts of intentional and reckless murder were properly submitted to the jury in the alternative,” the Court went on to conclude that “it is not a valid challenge to the conviction of reckless murder that the evidence tended to establish defendant’s guilt of intentional murder” because “(t)he greater culpable mental state includes the lesser,” citing People v Green, 56 NY2d 427, 432 (1982)]). Indeed, we said as much ourselves in Sanchez when we concluded that strong proof of intent did not foreclose the jury from finding recklessness and depraved indifference (see 98 NY2d at 378). Even though the defendant in Sanchez pressed arguments of legal insufficiency based on Gallagher, the Sanchez majority did not mention Gallagher.

Next, it has never been permissible in New York for a jury to convict a defendant of depraved indifference murder “where the evidence produced at trial indicated that if the defendant committed the homicide at all, he committed it with the conscious objective of killing the victim” (in the words of the first question). As discussed at some length, however, under Register— and until we started to recast “under circumstances evincing a depraved indifference to human life” post-Sanchez — where both intentional and depraved indifference murder were charged in one-on-one shootings or knifings, these counts were submitted to the jury for it to sort out the defendant’s state of mind unless there was absolutely no evidence whatsoever that the defendant might have acted unintentionally. That a defendant’s acts virtually guaranteed the victim’s death did not, in and of itself, preclude a guilty verdict on a theory of depraved indifference. To the contrary and as the dissenters in both Register and Sanchez vociferously protested, under the Register formulation the very facts establishing a risk of death approaching certainty and thus presenting compelling circumstantial evidence of intent — for example, a point-blank shooting of the victim in the head — likewise demonstrated depraved indifference. This was the law of the State of New York at the time defendant’s conviction became final.

In short, it is now clear that under New York law “a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder” (Payne, 3 NY3d at 272); that “[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances” (Suarez, 6 NY3d at 212); and that “ ‘depraved indifference to human life’ is a culpable mental state” (Feingold, 7 NY3d at 296). Thus, there is no doubt that under the law of New York today, a jury would not be permitted to find defendant guilty of depraved indifference murder on the evidence in this record.

At the time defendant’s conviction became final, however, Register defined New York law, and so this case would have been a close one for the jury to decide. And indeed, the jury decided that defendant committed reckless homicide as a basis for depraved indifference murder. As the People point out, the jurors heard evidence that defendant ingested crack cocaine approximately 45 minutes before shooting Phillips, and that the final shot to his helplessly prone victim hit his thigh, not a vital organ. Although there was certainly reason to believe that defendant may have borne a grudge against Phillips, there is considerable doubt that he acted with premeditation or sought out Phillips to seek revenge (a factual distinction between this case and Gonzalez bearing on intent); the violence here seems to have erupted spontaneously after a chance encounter on the street. Defendant shot Phillips in the head and neck three times at a range of three to five feet in a public place, an urban bus stop. And most critically of all, we had not yet decided any of our cases cutting back on Register. We had not yet even decided Sanchez, which ratified Register’s continued authority. Thus — to answer the first question as reframed by Judge Raggi — under the law of New York at the time defendant’s conviction became final, on this record the jury was permitted to find him guilty of depraved indifference murder.

In this regard, it is perhaps instructive that the District Court Judge initially denied defendant’s habeas petition. He reconsidered and reversed his decision only after learning about our slip opinion the previous day in Gonzalez, an early case in the evolution of our depraved indifference jurisprudence away from Register and Sanchez, leading eventually to Feingold.

Certified Question No. 2

“At the time Policano’s conviction became final, what were the established elements of depraved indifference murder?” (453 F3d at 76.)

As discussed in answer to the first question, at the time defendant’s conviction became final, the People were required to prove that defendant (1) recklessly engaged in conduct (2) which created a grave risk of death to another person (3) thereby causing the death of another person (4) under circumstances evincing a depraved indifference to human life. The mens rea of depraved indifference murder was recklessness and, as we held in Register, “under circumstances evincing a depraved indifference to human life” defined the factual setting, viewed objectively, in which the risk-creating conduct occurred.

Certified Question No. 3

“Does the interpretation of N.Y. Penal Law § 125.25 (1) and (2) set forth in People v. Payne, 3 N.Y.3d 266, 270 . . . (2004) and People v. Gonzalez, 1 N.Y.3d 464, 467 . . . (2004), state the correct interpretation of the law of New York with respect to the elements of depraved indifference murder on the date Policano’s conviction became final?” (453 F3d at 76.)

Register states the correct interpretation of the law of New York with respect to the elements of depraved indifference murder on the date defendant’s conviction became final in 2001. Our interpretation of one of those elements — “under circumstances evincing a depraved indifference to human life”— gradually and perceptibly changed from an objectively determined degree-of-risk standard (the Register formulation) to a mens rea, beginning with our decision in Hafeez in 2003, continuing in our decisions in Gonzalez, Payne and Suarez in 2004 and 2005, and ending with our decision in Feingold in 2006. We agree with the dissent insofar as it points out that we adhered to a mens rea of recklessness in Hafeez, Gonzalez, Payne and Suarez. We disagree, however, with the dissent’s position that this quartet of cases does not represent a perceptible, evolving departure from the underpinnings of depraved indifference murder as expressed in Register and Sanchez. As the many concurring decisions and dissents in these cases and the dissent in this case illustrate, individual judges hold differing views as to where along this trajectory a majority of the Court may have effectively passed the point of no return — the limit beyond which, hard as we may have tried, it was simply not possible to reconcile our developing case law with Register and Sanchez. There is no doubt, however, that a majority of the Court explicitly overruled Register and Sanchez in Feingold, holding that “ ‘depraved indifference to human life’ is a culpable mental state” (7 NY3d at 296). This raises the question whether our post-iSanchez case law applies retroactively to defendant’s case, an issue that Judge Raggi in her dissent intimates that we may wish to address. We conclude that it does not.

Under People v Pepper (53 NY2d 213 [1981]), we must weigh three factors to determine whether a new precedent operates retroactively: the purpose to be served by the new standard; the extent of the reliance by law enforcement authorities on the old standard; and the effect on the administration of justice of a retroactive application of the new standard. The second and third factors are, however, only given substantial weight “when the answer to the retroactivity question is not to be found in the purpose of the new rule itself’ id. at 220, citing Desist v United States, 394 US 244, 249 [1969]). “Thus, where otherwise there could be a complete miscarriage of justice, current constitutional standards that go to the heart of a reliable determination of guilt or innocence have been substituted for those in effect at the time of trial” (Pepper, 53 NY2d at 221).

This is not such a case. The purpose of our new interpretation of “under circumstances evincing a depraved indifference to human life” is to dispel the confusion between intentional and depraved indifference murder, and thus cut off the continuing improper expansion of depraved indifference murder. Moreover, in the words of the concurring Judges in Suarez, the goal is to “make future homicide prosecutions more sustainable, increasing the likelihood that defendants who are proven beyond a reasonable doubt to have committed intentional murder will be properly held to account for that crime” (Suarez, 6 NY3d at 217). Further, “[defendants who commit[ ] vicious crimes but who may have been charged and convicted under the wrong section of the statute are not attractive candidates for collateral relief after their convictions have become final” (id. at 217-218). In short, nonretroactivity poses no danger of a miscarriage of justice.

Finally, the other two Pepper factors strongly favor nonretroactivity. For two decades prosecutors relied on Register’s objectively determined degree-of-risk formulation when making their charging decisions (see Sanchez, 98 NY2d at 387 [Appendix]). In addition, retroactive application would potentially flood the criminal justice system with CPL 440.10 motions to vacate convictions of culpable intentional murderers who were properly charged and convicted of depraved indifference murder under the law as it existed at the time of their convictions.

Accordingly, the certified questions should be answered in accordance with this opinion.

Chief Judge Kaye

(dissenting in part). As with all precedent-bound courts in the limited business of resolving only the controversies that come before them, our individual decisions necessarily reflect the careful evolution of law, step by step, as doctrine develops through the incremental process of case-based adjudication. As rules laid down in prior cases are applied to novel and distinct fact patterns, principles are refined and the law settled. Such is the nature, and enduring power, of our system of jurisprudence.

When, as in People v Gonzalez (1 NY3d 464 [2004]), the Court undertakes to resolve new cases based on established principles, thereby shaping and perhaps even extending those principles to meet new situations, we are not, by so doing, “changing the law,” but are instead simply engaging in the normal progression of judicial deliberation and decisionmaking, as have courts over hundreds of years. Much more rarely, as we come to discover that a preexisting rule, once thought defensible, no longer serves the ends of justice or withstands “the cold light of logic and experience” (Broadnax v Gonzalez, 2 NY3d 148, 156 [2004]), we may decide to overrule settled precedent. But such a decision, made in derogation of the important policy of stare decisis, is not taken lightly, or unconsciously. Rather, in that circumstance, as in People v Feingold (7 NY3d 288 [2006]), we know how to make clear our intention to abandon prior case law, and our reasons for taking that drastic step, and we do so.

Over the last several years, there have been two distinct threads in our developing depraved indifference murder jurisprudence — only one of which effected an actual “change” in settled precedent.

The first line of cases holds that evidence of a manifestly intentional killing cannot sustain a conviction for depraved indifference murder and is based — as we made clear in the Court’s unanimous opinion in People v Gonzalez (1 NY3d at 468) — on the well-established rule of People v Gallagher (69 NY2d 525 [1987]) that intentional murder and depraved indifference murder are inconsistent crimes. This rule was consistently applied in People v Hafeez (100 NY2d 253 [2003]); People v Gonzalez (1 NY3d 464 [2004]); People v Payne (3 NY3d 266 [2004]); People v Suarez (6 NY3d 202 [2005]) — and Policano v Herbert.

As we explained in Gallagher, a person cannot at the same time act both intentionally and recklessly with respect to the same result — that is, death. Rather, “guilt of one necessarily negates guilt of the other,” since an act “is either intended or not intended; it cannot simultaneously be both” (69 NY2d at 529). The majority asserts that Gallagher was originally “read” as limited to charging procedure (majority op at 600), but the principle that evidence of a plainly intentional killing could not, as a matter of sufficiency, support a conviction for unintentional homicide was settled as early as People v Wall (29 NY2d 863 [1971]).

In Wall, we held that because the “record established that defendant was guilty of an intentional shooting or no other” (29 NY2d at 864), a verdict convicting the defendant of criminally negligent homicide could not be sustained. As we explained, “the two bursts of shots, each shot hitting its victim, could not be found to be the result of negligence merely” (id.). Although the District Court viewed defendant’s case as “largely indistinguishable” from Gonzalez (Policano v Herbert, 2004 WL 1960203, *9, 2004 US Dist LEXIS 17785, *25 [ED NY, Sept. 7, 2004]), which postdates defendant’s conviction, I view it as largely indistinguishable from Wall, which long precedes it.

Thus, Hafeez, Gonzalez and their progeny did not change the law. Nor were they inconsistent with People v Sanchez (98 NY2d 373 [2002]), in which, as we have explained time and again, a conviction for depraved indifference murder was warranted because the shooting occurred in an area where children were playing, thus presenting a heightened risk of unintended injury (see Hafeez, 100 NY2d at 259; Gonzalez, 1 NY3d at 468; Payne, 3 NY3d at 271, 272; Suarez, 6 NY3d at 213 n 7). As the Second Circuit noted in affirming the District Court, Gonzalez and Payne “represented] not the creation of a new legal principle, but the application of long-settled New York law to new facts” (Policano v Herbert, 430 F3d 82, 92 [2d Cir 2005]).

The second, separate thread of our developing depraved indifference murder jurisprudence involves depravity as a distinct mens rea. It is with respect to this issue that, in Feingold, our Court did indeed change the law, overruling the previously settled principle of People v Register (60 NY2d 270 [1983]) that the element of depraved indifference referred to the objective circumstances in which the risk-creating conduct must occur, not to a culpable mental state. I concur in the majority’s retroactivity analysis with respect to this indisputable change in the law.

I would answer the first certified question in the negative and the third certified question in the affirmative.

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

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and record submitted, certified questions answered in accordance with the opinion herein.