text:
    [ 847 NE2d 1162, 814 NYS2d 589]
    Douglas Robinson, Appellant, v East Medical Center, LP, et al., Defendants. Hueber-Breuer Construction Co., Inc., Third-Party Plaintiff, v Burns Bros. Contractors, Inc., Third-Party Defendant-Respondent.
    Argued February 16, 2006;
    decided April 4, 2006

      POINTS OF COUNSEL

      Amdursky, Pelky, Fennell & Wallen, PC., Oswego (Timothy J. Fennell and Joseph E. Wallen of counsel), for appellant.
    I. Plaintiff established a prima facie claim under Labor Law § 240 (1). (Abbatiello v Lancaster Studio Assoc., 3 NY3d 46; Quigley v Thatcher, 207 NY 66; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494; Gordon v Eastern Ry. Supply, 82 NY2d 555; Montalvo v J. Petrocelli Constr., Inc., 8 AD3d 173; Bland v Manocherian, 66 NY2d 452; Rocovich v Consolidated Edison Co., 78 NY2d 509; Narducci v Manhasset Bay Assoc., 96 NY2d 259; Kelleher v Power Auth. of State of N.Y., 211 AD2d 918.) II. Defendants’ violation of Labor Law § 240 (1) was the proximate cause of plaintiffs injury. (Zimmer v Chemung County Performing Arts, 65 NY2d 513; Bland v Manocherian, 66 NY2d 452; Weininger v Hagedorn & Co., 91 NY2d 958; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35; Montgomery v Federal Express Corp., 4 NY3d 805.)

      Costello, Cooney & Fearon, PLLC, Syracuse (Daniel P. Fletcher and Nicole M. Marlow of counsel), for third-party defendant-respondent.
    I. Plaintiffs Labor Law § 240 (1) claim was properly dismissed because the core objective of the statute was satisfied where plaintiff did not fall from or at a height. (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Bland v Manocherian, 66 NY2d 452; Abbatiello v Lancaster Studio Assoc., 3 NY3d 46; Narducci v Manhasset Bay Assoc., 96 NY2d 259; Striegel v Hillcrest Hgts. Dev. Corp., 100 NY2d 974; Rocovich v Consolidated Edison Co., 78 NY2d 509; Ross v CurtisPalmer Hydro-Elec. Co., 81 NY2d 494; Toefer v Long Is. R.R., 4 NY3d 399; Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914; Acosta v Bentley Apts., 298 AD2d 124.) II. The order of the Appellate Division should be affirmed because plaintiffs conduct in standing on the very top of the ladder was the sole proximate cause of his injuries. (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 1054; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280; Duda v Rouse Constr. Corp., 32 NY2d 405; Weininger v Hagedorn & Co., 91 NY2d 958, 92 NY2d 875;
      Secord v Willow Ridge Stables, 179 Misc 2d 366; Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35; Montgomery v Federal Express Corp., 4 NY3d 805; Meade v Rock-McGraw, Inc., 307 AD2d 156; Makaj v Metropolitan Transp. Auth., 18 AD3d 625.)
   OPINION OF THE COURT

Read, J.

Plaintiff Douglas W. Robinson, a journeyman plumber, was injured on June 23, 1998 while working for Burns Brothers Contractors, Inc. at the construction site for a new medical condominium complex in Fayetteville, New York. Burns Brothers was a plumbing subcontractor on the project.

Plaintiff arrived at the job site at 7:00 a.m. that day, intending to continue to install pipe hanger systems, a task that he had been carrying out for about two weeks, using a six-foot wooden stepladder. In order to perform this work, plaintiff would cut rods to the desired length; mount the ladder to screw the rods into top beam clamps attached to overhead structural steel beams and tighten the clamps; and subsequently hang pipes from the rods. Burns Brothers stored its six- and eight-foot ladders, as well as other tools and blueprints, in a designated room on the first floor in the garage area at the construction site. Workers also cached ladders overnight at gathering points near their work locations so as to reduce trips to and from the central storage room.

Working alone and using a six-foot ladder, plaintiff installed rods in a hallway until roughly 9:00 a.m. After a 10-minute break some time between 9:00 a.m. and 9:30 a.m., he moved into an office suite where the steel beams were at a height of 12 to 13 feet from the floor, which was higher than in the hallway. Plaintiff, who is five feet, nine inches tall, was standing on the top cap of the six-foot ladder, using a wrench to tighten a clamp with his right hand and holding onto a rod with his left hand. When the wrench slipped, he lost his balance and the ladder moved. He held fast to the rod as he dropped about two feet, caught the tipping ladder under its uppermost step with his left foot and straightened it into an upright position, jerking or “twist[ing] up” his back in the process. Plaintiff descended the ladder, and spent the balance of the workday—from about 10:00 am. when the accident occurred until 3:30 p.m.—performing various tasks. He did not immediately seek out his foreman to report what had happened, but rather told him when they later “crossed paths,” perhaps at the noontime lunch break.

According to plaintiff, there was a box of “community tools” set up in front of the building, and he and other workers would congregate at this location at the beginning of the workday. Some time between 7:00 a.m. and 8:00 a.m. on June 23rd, he saw his foreman there and told him “by the way, I’m going to need an 8-foot ladder.” Plaintiff testified that the foreman replied, ‘Til see if I can get you one.” Plaintiff acknowledges that the foreman did not instruct him to finish installing pipe in the office suite before completing other work; that he knew there were eight-foot ladders on the job site and “knew what part of the garage [the eight-foot ladders] were in”; and that, prior to ascending the six-foot ladder in the office suite, he did not look in the garage for an eight-foot ladder, or follow up his request to the foreman, or seek out fellow workers who might have been using an eight-foot ladder to ask for the ladder when they were finished with it, as he had on prior occasions. When asked whether he had ever before gone to his foreman to request ladders or other tools, plaintiff replied “I don’t think I ever asked him for anything. I knew where the tools are located. It’s a practice of help yourself,” and “[y]ou just grab a ladder and do the job.”

On June 21, 2001, plaintiff sued the owner of the medical complex and the general contractor, alleging violations of Labor Law § 240 (1), § 200 (1) and § 241 (6). The owner cross-claimed against the contractor for indemnity; and the contractor brought a third-party action against Burns Brothers for indemnity and/or contribution.

Plaintiff moved for partial summary judgment on liability under Labor Law § 240 (1), arguing that because his foreman did not deliver an eight-foot ladder to him, he “was forced to complete his work with an unsafe six[-]foot ladder.” Plaintiff does not suggest that the six-foot ladder was defective, only that it was not tall enough for the particular task that he was carrying out when he was injured. Defendants opposed plaintiffs motion and cross-moved for summary judgment on all the Labor Law causes of action. As relevant here, Burns Brothers moved to dismiss the cause of action under Labor Law § 240 (1) exclusively on the ground that plaintiffs own actions were the sole proximate cause of his accident. Specifically, “[p]laintiff knew he needed a taller ladder” and “there were taller ladders on the job site,” but he “failed ... to wait for one to be provided and failed to take any steps to secure a taller ladder other than allegedly to ask for one shortly before the accident” and instead, “stood on the top of the six[-]foot step ladder.”

Supreme Court granted plaintiff partial summary judgment on liability under Labor Law § 240 (1), and dismissed his causes of action under Labor Law §§ 200 and 241 (6). The Appellate Division subsequently reversed Supreme Court and dismissed the complaint in its entirety, with two Justices dissenting. We now affirm.

Where a “plaintiffs actions [are] the sole proximate cause of his injuries, . . . liability under Labor Law § 240 (1) [does] not attach” (Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]; see also Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35 [2004]; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 [2003]). Instead, the owner or contractor must breach the statutory duty under section 240 (1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker’s injuries. These prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them.

In Montgomery v Federal Express Corp. (4 NY3d 805 [2005]), the plaintiff and another worker were assigned a task to be performed in an elevator “motor room,” which was located four feet above the roof level of a building. Arriving on the roof, they discovered that the stairs from the roof to the motor room had been removed. Ladders were available at the job site, albeit not in the immediate vicinity. Rather than fetch a ladder, however, the workers climbed to the motor room by standing on an overturned bucket. The plaintiff exited the motor room by jumping to the roof, and injured his knee when he landed. Citing Blake, we noted that “since ladders were readily available, plaintiffs normal and logical response should have been to go get one. Plaintiffs choice to use a bucket to get up, and then to jump down, was the sole cause of his injury, and he is therefore not entitled to recover under Labor Law § 240 (1)” (Montgomery, 4 NY3d at 806 [internal quotation marks omitted]).

Similarly, plaintiff knew that he needed an eight-foot ladder in order to screw the rods into the clamps once he left the hallway and entered the office suite. He acknowledges that there were eight-foot ladders on the job site, that he knew where they were stored, and that he routinely helped himself to whatever tools he needed rather than requesting them from the foreman. While intimating that all the eight-foot ladders may have been in use at the time of his accident, plaintiff also conceded that his foreman had not directed him to finish the piping in the office suite before undertaking other tasks, and testified that there was sufficient other work to occupy him for the rest of the workday. He also testified that on prior occasions he had waited for a ladder to be freed up by other workers. He claims to have asked his foreman for an eight-foot ladder only an hour or two before he started to install the rods in the office suite. Yet he proceeded to stand on the top cap of a six-foot ladder, which he knew was not tall enough for this task, without talking to the foreman again, or looking for an eight-foot ladder beyond his immediate work location. In short, there were adequate safety devices—eight-foot ladders—available for plaintiffs use at the job site. Plaintiffs own negligent actions—choosing to use a six-foot ladder that he knew was too short for the work to be accomplished and then standing on the ladder’s top cap in order to reach the work—were, as a matter of law, the sole proximate cause of his injuries.

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

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and R.S. Smith concur.

Order affirmed, with costs.

       The majority in the Appellate Division concluded that plaintiff did not fall “from or at a height,” but rather avoided a fall and therefore “did not meet his initial burden of demonstrating his entitlement to recovery under [Labor Law § 240 (1)] as a matter of law” (17 AD3d 1027, 1028 [4th Dept [2005]), We need not and do not reach this issue.


source: Caselaw Access Project

author: R.S. Smith, J. Ciparick, J. (dissenting).

license: Public Domain

text:
    [ 849 NE2d 258, 816 NYS2d 399]
    The People of the State of New York, Respondent, v Mikel Wardlaw, Appellant.
    Argued February 14/2006;
    decided April 4, 2006

      POINTS OF COUNSEL

      Legal Aid Bureau of Buffalo, Inc., Buffalo (Mary Good, David C. Schopp and Barbara J. Davies of counsel), for appellant.
    I. The Appellate Division’s determination that appellant was denied his right to counsel under the Sixth Amendment to the United States Constitution and article I, § 6 of the New York Constitution was correct. It is, moreover, not reviewable by this Court since the People are not an appealing party. (People v Sawyer, 57 NY2d 12; People v Slaughter, 78 NY2d 485; People v Providence, 2 NY3d 579; People v Arroyo, 98 NY2d 101; Faretta v California, 422 US 806; People v Carracedo, 89 NY2d 1059; People v Carpenito, 80 NY2d 65.) II. The precedents of this Court suggest the appropriateness of a ruling that harmless error analysis should not be applied to pretrial proceedings, particularly pretrial suppression hearings, where there has been a violation of the right to counsel. (People v Waterman, 9 NY2d 561; People v Donovan, 13 NY2d 148; People v Hobson, 39 NY2d 479; People v P.J. Video, 68 NY2d 296; United States v Wade, 388 US 218; People v Anderson, 16 NY2d 282; People v Hodge, 53 NY2d 313; Coleman v Alabama, 399 US 1; People v Wicks, 76 NY2d 128; People v Felder, 47 NY2d 287.) III. The appropriate remedy is a new trial. (People v Slaughter, 78 NY2d 485; People v Carracedo, 89 NY2d 1059; People v Hilliard, 73 NY2d 584; People v Felder, 47 NY2d 287; People v Favor, 82 NY2d 254.) IV The violation of appellant’s state and federal constitutional right to counsel is not harmless beyond a reasonable doubt. (People v Crimmins, 36 NY2d 230; Gideon v Wainwright, 372 US 335; Powell v Alabama, 287 US 45; People v Slaughter, 78 NY2d 485.)

      Frank J. Clark, District Attorney, Buffalo (Susan C. Ministero and J. Michael Marion of counsel), for respondent.
    Harmless error analysis applies to the denial of a defendant’s right to counsel at a suppression hearing and the error was harmless beyond a reasonable doubt. (People v Slaughter, 78 NY2d 485; People v Providence, 2 NY3d 579; People v Arroyo, 98 NY2d 101; Faretta v California, 422 US 806; People v McIntyre, 36 NY2d 10; People v Vivenzio, 62 NY2d 775; People v Settles, 46 NY2d 154; People v Crimmins, 36 NY2d 230; Chapman v California, 386 US 18; United States v Wade, 388 US 218.)
   OPINION OF THE COURT

R.S. Smith, J.

People v Slaughter (78 NY2d 485 [1991]) and People v Carracedo (89 NY2d 1059 [1997]) establish that a violation of a defendant’s right to counsel at a suppression hearing ordinarily entitles the defendant to a new suppression hearing, but not to automatic reversal of his conviction and a new trial. We now consider a case in which it is clear, beyond reasonable doubt, that the outcome of the suppression hearing at which the right to counsel was violated could not have affected the outcome of the trial. We hold that, under these circumstances, the error was harmless.

Facts and Procedural History

Defendant, accused of raping his nine-year-old niece, went voluntarily to the police station on the morning after the incident and spoke to two officers. He denied the child’s accusation and signed two written statements containing his denials. After he signed the second statement, one of the officers told him that semen had been found in his niece’s vagina. Defendant reacted to this information by saying: “I didn’t do anything to her. I didn’t force her to do anything.” The officer asked: “What if the DNA comes back to you?” Defendant answered: “Well, I’d just have to take my punishment.”

Defendant was prosecuted for rape, sodomy and several related crimes. He moved to suppress his statements to the police, and a Huntley hearing was scheduled. At the hearing, defendant asked to dismiss his lawyer and proceed pro se. In what the People now concede was an error, the trial court allowed him to do so, without making a “searching inquiry” to be sure that defendant knew and understood the perils of being unrepresented (People v Sawyer, 57 NY2d 12, 21 [1982]). After the hearing, defendant’s motion to suppress his statements was denied.

The trial followed, at which defendant was represented by counsel. The People’s witnesses included the victim, who testified to defendant’s sexual assault of her; the victim’s brother and mother, who testified that she reported the assault immediately; a nurse and a doctor, who testified that when they examined the victim the next day her vagina was red, her hymen appeared to have been widened, and there was semen in her vagina and anus; and a DNA expert, who testified that the semen was defendant’s. The People also introduced defendant’s statements. Defendant testified and denied any wrongdoing. He offered no explanation for the presence of his semen in the victim.

Defendant was convicted, and appealed to the Appellate Division. That Court said that the error in allowing defendant to proceed pro se at the Huntley hearing “surely invalidated the hearing itself,” but concluded that, because the proof of guilt apart from the statements challenged at the hearing was “truly overwhelming,” suppression of the statements would not have affected the outcome of the trial (18 AD3d 106, 109, 113 [4th Dept 2005]). Finding that a new suppression hearing would be a “pointless exercise,” it held the error to be harmless, and affirmed defendant’s conviction (id. at 114). We agree with the Appellate Division’s analysis, and affirm.

Discussion

Under Slaughter and Carracedo, the normal remedy for a violation of the right to counsel at a suppression hearing is a new suppression hearing, with a new trial to follow if, after the new hearing, the evidence is suppressed. Here, however, it is clear beyond reasonable doubt that any new trial would have the same result, even if defendant’s statements were excluded from evidence. Thus, a new hearing would serve no purpose.

The Appellate Division was right in saying that the violation of defendant’s right to counsel irreparably tainted the suppression hearing, just as a similar violation at trial would have irreparably tainted the trial (see People v Felder, 47 NY2d 287, 291 [1979]). When a defendant has wrongly been denied counsel at a particular proceeding, we do not inquire whether the presence of counsel would have changed that proceeding’s result. In this sense, the denial of the right to counsel may not be treated as “harmless.” But the remedy to which a defendant is entitled ordinarily depends on what impact, if any, the tainted proceeding had on the case as a whole. Where it had none, the conviction will be affirmed notwithstanding the error—and in that sense, the harmless error rule does apply. (Cf. People v Wicks, 76 NY2d 128, 133 [1990] [“The denial of counsel at a preindictment preliminary hearing . . . does not necessarily invalidate the trial”].)

Slaughter and Carracedo both show that a violation of the right to counsel at a suppression hearing does not require reversal of a conviction if it did not affect the trial. In Slaughter, we held that an error in permitting a defendant to proceed pro se at a suppression hearing “was not harmless” (78 NY2d at 493), but we did not nullify his conviction; we remitted the case for a new suppression hearing, ordering a new trial only “in the event that defendant prevails” in the new hearing (id.). Similarly, in Carracedo the Appellate Division had found a violation of the right to counsel at a suppression hearing and remanded for a new hearing. The new hearing was held, and the evidence was not suppressed; we held that defendant’s original conviction could stand (89 NY2d at 1061). Since Slaughter and Carracedo hold that an error that taints a hearing may be shown, after a new hearing, to have done no harm to the trial, the dissent is incorrect in saying that we have “never before today” applied harmless error analysis in a deprivation of counsel case (dissenting op at 562).

This case differs from Slaughter and Carracedo only in that no new hearing is necessary to prove that the flaw in the original hearing did not prejudice defendant at trial, and so was harmless. We assume, for purposes of our analysis, that if defendant had had a lawyer at the hearing he would have prevailed, and his statements would have been suppressed. In that event, the prosecution would still have had the victim’s testimony, the testimony about her prompt complaint, the medical evidence and the DNA evidence. But for the last of these, we might reach a different result, for defendant’s statements, though not confessions, are significant evidence of his guilt; but that guilt was proved conclusively anyway by the DNA. When a man’s semen is found in a nine-year-old girl’s vagina, the evidence that he raped her is, as the Appellate Division said, “truly overwhelming” (18 AD3d at 113). Defendant has not offered, either to the jury or to us, any theory that casts any doubt on his guilt. We therefore conclude that the error committed at the suppression hearing was harmless beyond a reasonable doubt (Chapman v California, 386 US 18, 24 [1967]; People v Crimmins, 36 NY2d 230, 237 [1975]).

We add a word of caution: Our holding does not imply that the harmless error rule can always be applied where the right to counsel has been violated. Special cases may call for special remedies. Thus in People v Hilliard (73 NY2d 584 [1989]), a judge had ordered the defendant’s counsel to have no contact with him for 30 days after his arraignment. This violation of the defendant’s right did not, as far as the Hilliard opinion shows, contribute to his conviction; presumably, the defendant had an opportunity to consult with counsel after the 30 days expired. Without inquiring into this question, we reversed the defendant’s conviction and ordered the indictment dismissed. Hilliard shows that, where a deprivation of the right to counsel was egregious, and where to leave it unremedied might invite future abuse, appellate courts may grant relief even though the defendant was not prejudiced by the error.

But we are not prepared to hold, as our dissenting colleagues apparently would, that every pretrial violation of the right to counsel, even if it did not affect the outcome of the case, must have some remedy. The right to counsel is indeed veiy important. But even deprivations of important constitutional rights do not require a remedy when it is clear beyond reasonable doubt that they did not contribute to a conviction (People v Crimmins, 36 NY2d at 237). There are rare exceptions, when a defendant has been denied “his fundamental right to a fair trial” (id. at 238), but a violation of the right to counsel at a pretrial hearing is not among them, as Slaughter, Carracedo and Wicks demonstrate.

The harmless error rule serves important interests. In this case, it serves the interest of a child who was raped, by protecting her against the risk of having to testify at a second trial, where her attacker’s guilt was amply proved at the first one. And it serves the interests of society in punishing heinous crimes like this one with as much efficiency and promptness as possible without unfairness to defendants. There is no unfairness to this defendant, for he is entitled to no better result than the best he could have obtained if he had been represented by counsel at the Huntley hearing. Since that result—suppression of his statements to the police—could not have prevented defendant’s conviction, the conviction stands.

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

Ciparick, J. (dissenting).

It is a sad day when the Court of Appeals deviates from its heretofore robust protection of the right to counsel as conceived under the State’s Constitution solely because of the proof of guilt and the heinousness of the crimes alleged. Contrary to our jurisprudence, the majority has focused on indicia of “overwhelming” evidence of guilt in order to apply harmless error when a defendant was deprived of the right to counsel at a critical stage of the proceeding—a pretrial suppression hearing.

A defendant has a constitutionally protected right to counsel at a pretrial suppression hearing equal to that at trial (see Coleman v Alabama, 399 US 1, 9-10 [1970]; see also People v Anderson, 16 NY2d 282, 287-288 [1965]). Deprivation of that right was never before today subject to a harmless error analysis in this state (see People v Hilliard, 73 NY2d 584, 587 [1989]). Indeed, this Court’s long-established jurisprudence has repeatedly recognized the fundamental importance of legal representation to protect the balance between an accused and the prosecutorial power of the State. Were the defendant deprived of counsel at trial itself, however overwhelming the proof of guilt—DNA evidence, confession, eyewitnesses—surely no one would argue that he was not entitled to a new trial. This is not because a new trial is necessary to establish guilt, but rather because the courts must protect the fairness and integrity of our criminal justice system.

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

Order affirmed.

       Contrary to the majority opinion, neither People v Slaughter (78 NY2d 485 [1991]) nor People v Carracedo (89 NY2d 1059 [1997]) hold otherwise. In Slaughter, we explicitly refrained from deciding whether harmless error analysis applies to deprivation of counsel at a suppression hearing (see 78 NY2d at 492 [“Assuming, without deciding, that harmless error analysis applies here, we hold that defendant’s ineffective waiver of counsel was not harmless” (citation omitted)]). Likewise, our opinion in Carracedo does not discuss the subject of harmless error, but instead focuses on the proper remedy for a deprivation of counsel violation.


author: R.S. Smith, J.

text:
    [ 848 NE2d 448, 815 NYS2d 1]
    In the Matter of Patrolmen’s Benevolent Association of the City of New York, Inc., Appellant, v New York State Public Employment Relations Board et al., Respondents. In the Matter of Town of Orangetown et al., Respondents, v Orangetown Policemen’s Benevolent Association et al., Appellants.
    Argued February 8, 2006;
    decided March 28, 2006

      POINTS OF COUNSEL

      Kaye Scholer LLP, New York City (Peter M. Fishbein, Jay W. Waks, John D. Geelan and Christine A. Neagle of counsel), Gleason, Dunn, Walsh & O’Shea, Albany (Ronald G. Dunn of counsel), and Office of the Patrolmen’s Benevolent Association of City of New York, Inc. General Counsel, New York City (Michael T. Murray of counsel), for appellant in the first above-entitled proceeding.
    I. The Taylor Law mandates that the City of New York must bargain over discipline. (Parker v Borock, 5 NY2d 156; Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v Cuevas, 276 AD2d 184; Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl.

      Relations Bd., 75 NY2d 660.) II. There is no legislation that meets the rigorous and exacting standard necessary to convert discipline from a mandatory to a prohibited subject of bargaining. (Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23; Matter of Newark Val. Cent. School Dist. v Public Empl. Relations Bd., 83 NY2d 315; Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; Meringolo v Jacobson, 256 AD2d 20; Matter of Auburn Police Local 195, Council 82, Am. Fedn. of State, County & Mun. Empls., AFLCIO v Helsby, 62 AD2d 12, 46 NY2d 1034; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122; Matter of Astwood v Cohen, 291 NY 484; Procaccino v Board of Elections of City of N.Y., 73 Misc 2d 462; Elliott v City of New York, 95 NY2d 730.) III. New York City Charter § 434 and Administrative Code of the City of New York § 14-115 do not prohibit collective bargaining over discipline under the rigorous Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd. (95 NY2d 73 [2000]) standard. (Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122; Matter of City of New York v Lieutenants Benevolent Assn., 285 AD2d 329; Matter of Town of Carmel v Public Empl. Relations Bd. of State of N.Y., 246 AD2d 791; Matter of State of N.Y. [Div. of Military & Nav. Affairs] v New York State Pub. Empl. Relations Bd., 187 AD2d 78.) IV Even if New York City Charter § 434 and Administrative Code of the City of New York § 14-115 could meet the Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd. (95 NY2d 73 [2000]) standard, at most they preclude bargaining over the Police Commissioner’s ultimate disciplinary determination, not over disciplinary procedures. (Matter of City of Syracuse v Public Empl. Relations Bd., 279 AD2d 98.)

      Sandra M. Nathan, Albany, and William L. Busier for New York State Public Employment Relations Board, respondent in the first above-entitled proceeding.
    The Court of Appeals should clarify whether or not the Patrolmen’s Benevolent Association of the City of New York, Inc.’s collective bargaining demands involving the discipline of police officers employed by respondent City of New York are prohibited subjects of bargaining and, therefore, whether or not they are properly submitted to interest arbitration. (Matter of City of Mount Vernon v Cuevas, 289 AD2d 674; Matter of Town of Greenburgh [Police Assn. of Town of Greenburgh], 94 AD2d 771, 60 NY2d 551; Matter of City of New York v MacDonald, 201 AD2d 258, 83 NY2d 759; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Matter of Rockland County Patrolmen’s Benevolent Assn. v Town of Clarkstown, 149 AD2d 516; Matter of Lynch v Giuliani, 301 AD2d 351; Syracuse Teachers Assn. v Board of Educ., Syracuse City School Dist., 35 NY2d 743; Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46; Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122; Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137.)

      Michael A. Cardozo, Corporation Counsel, New York City (Edward F.X. Hart, Leonard Koerner and Spencer Fisher of counsel), for City of New York, respondent in the first above-entitled proceeding.
    The Appellate Division, Third Department, properly affirmed the judgment of the Supreme Court, which confirmed the Public Employment Relations Board’s (PERB) determination that five Patrolmen’s Benevolent Association of the City of New York, Inc. proposals involving police discipline are prohibited subjects of collective bargaining because the New York City Charter and Administrative Code of the City of New York have charged the Police Commissioner with exclusive discretion in implementation and imposition of police discipline. PERB’s decision was rationally based and neither arbitrary nor capricious. (Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, Ichabod Crane Cent. School Dist. CSEA Unit v New York State Pub. Empl. Relations Bd., 300 AD2d 929; Matter of Benson v Cuevas, 272 AD2d 764; Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Matter of Webster Cent. School Dist. v Public Empl. Relations Bd. of State of N.Y., 75 NY2d 619; Matter of City of Mount Vernon v Cuevas, 289 AD2d 674, 97 NY2d 613; Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46; Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398; Matter of City of New York v MacDonald, 201 AD2d 258, 83 NY2d 759.)

      Donna M.C. Giliberto, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae in the first above-entitled proceeding.
    I. Terms and conditions of employment in New York’s public sector differ from those in the private sector. II. The establishment of public sector bargaining rights created a tension with preexisting statutory or charter provisions addressing terms and conditions of employment. (Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122.) III. Resolving whether bargaining over an alternative to a statutory or municipal charter disciplinary provision should be required is a function of the State Legislature. (Alweis v Evans, 69 NY2d 199; Iazzetti v City of New York, 94 NY2d 183; Matter of Auburn Police Local 195, Council 82, Am. Fedn. of State, County & Mun. Empls., AFL-CIO v Helsby, 46 NY2d 1034.)

      Patterson, Belknap, Webb & Tyler, LLP, New York City (Anthony P. Coles and Walter M. Luers of counsel), for Sergeants Benevolent Association of the City of New York, amicus curiae in the first above-entitled proceeding.
    I. New York City Charter § 434 and Administrative Code of the City of New York § 14-115 are not general laws. (DJL Rest. Corp. v City of New York, 96 NY2d 91; City of Amsterdam v Helsby, 37 NY2d 19; Matter of Doyle v City of Troy, 51 AD2d 845.) II. New York City Charter § 434 is a local law. (Procaccino v Board of Elections of City of N.Y., 73 Misc 2d 462.) III. Administrative Code of the City of New York § 14-115 is a local law. IV Because local laws that are inconsistent with the Taylor Law cannot stand, New York City Charter § 434 and Administrative Code of the City of New York § 14-115 are invalid. (Matter of Doyle v City of Troy, 51 AD2d 845; DJL Rest. Corp. v City of New York, 96 NY2d 91; Davis Constr. Corp. v County of Suffolk, 95 AD2d 819; Cliff v Blydenberg, 173 Misc 2d 366.) V If New York City Charter § 434 and Administrative Code of the City of New York § 14-115 are special state laws, they are abrogated by the Taylor Law. (Ling Ling Yung v County of Nassau, 77 NY2d 568.)

      Certilman Balin Adler & Hyman, LLP, East Meadow (Wayne J. Schaefer and Michael C. Axelrod of counsel), for Police Benevolent Association of the New York State Troopers, Inc. and another, amici curiae in the first above-entitled proceeding.
    I. The history of Civil Service Law § 76 (4) does not support an inference that the State Legislature, in addition to deciding not to replace general, special or local law or charter provisions with Civil Service Law disciplinary procedures, also intended to prohibit collective bargaining wherever such provisions are found. (Matter of City of Albany v Helsby, 56 AD2d 976; Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122; Syracuse Teachers Assn. v Board of Educ., Syracuse City School Dist., 35 NY2d 743; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 135 Misc 2d 1088, 132 AD2d 242, 71 NY2d 803; Matter of Montella v Bratton, 93 NY2d 424; Matter of Lynch v Giuliani, 301 AD2d 351; City of New York v MacDonald, 201 AD2d 258; Matter of Town of (Greenburgh [Police Assn. of Town of Greenburgh], 94 AD2d 771, 60 NY2d 551.)

      Bunyan & Baumgartner, LLP, Blauvelt (Joseph P. Baumgartner and Richard P. Bunyan of counsel), for appellants in the second above-entitled proceeding.
    I. The decision of the Appellate Division directly conflicts with prior decisions of this Court with respect to permissive and prohibited subjects of negotiations. (Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122; Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; Matter of Rockland County Patrolmen’s Benevolent Assn. v Town of Clarkstown, 149 AD2d 516; Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398.) II. Civil Service Law § 76 (4) does not prohibit bargaining alternatives to disciplinary procedures contained in special police acts. (Matter of Town of Greenburgh [Police Assn. of Town of Greenburgh], 94 AD2d 771, 60 NY2d 551; Matter of Rockland County Patrolmen’s Benevolent Assn. v Town of Clarkstown, 149 AD2d 516; Matter of City of New York v MacDonald, 201 AD2d 258, 83 NY2d 759; Matter of City of Mount Vernon v Cuevas, 289 AD2d 674, 97 NY2d 613; Matter of Auburn Police Local 195, Council 82, Am. Fedn. of State, County & Mun. Empls., AFL-CIO v Helsby, 62 AD2d 12, 46 NY2d 1034; Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122; Baker v Cawley, 459 F Supp 1301, 607 F2d 994; Matter of Coscette v Town of Wallkill, 281 AD2d 479, 97 NY2d 602; Meringolo v Jacobson, 256 AD2d 20, 93 NY2d 948.) III. Even if Civil Service Law § 76 is relevant, it does not prohibit negotiation of the disciplinary procedure contained in the collective bargaining agreement. (Matter of City of Mount Vernon v Cuevas, 289 AD2d 674; Matter of City of New York v MacDonald, 201 AD2d 258; Matter of Montella v Bratton, 93 NY2d 424.) IV Assuming, arguendo, that article 15 of the collective bargaining agreement (CBA) is not enforceable as part of the CBA, it is still enforceable as a town resolution. (Matter of Moran v LaGuardia, 270 NY 450; JEM Realty Co. v Town Bd. of Town of Southold, 297 AD2d 278.)

      Keane & Beane, P.C., White Plains (Lance H. Klein and Edward J. Phillips of counsel), for respondents in the second above-entitled proceeding.
    I. The area of police officer discipline is not subject to collective bargaining in Rockland County. (Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480; Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23; Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73; Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137; Matter of Town of Mamaroneck PBA v New York State Pub. Empl. Relations Bd., 66 NY2d 722; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Port Jefferson Sta. Teachers Assn. v Brookhaven-Comsewogue Union Free School Dist., 45 NY2d 898; People ex rel. Masterson v French, 110 NY 494; Matter of Roge v Valentine, 280 NY 268.) II. Collective bargaining agreement article 15 is void as a matter of law. (JEM Realty Co. v Town Bd. of Town of Southold, 297 AD2d 278, 99 NY2d 504; Matter of Union Free School Dist. No. 2 of Town of Cheektowaga v Nyquist, 38 NY2d 137; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774; Matter of Rockland County Patrolmen’s Benevolent Assn. v Town of Clarkstown, 149 AD2d 516; Matter of Town of Greenburgh [Police Assn. of Town of Greenburgh], 94 AD2d 771; Philipstown Indus. Park v Town Bd. of Town of Philipstown, 247 AD2d 525; Matter of Llana v Town of Pittstown, 245 AD2d 968, 91 NY2d 812.)

      Donna M.C. Giliberto, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae in the second above-entitled proceeding.
    I. Terms and conditions of employment in New York’s public sector differ from those in the private sector. II. The establishment of public sector bargaining rights created a tension with preexisting statutory or charter provisions addressing terms and conditions of employment. (Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122.) III. Whether bargaining over an alternative to a statutory or municipal charter disciplinary provision should be required is a function of the State Legislature. (Alweis v Evans, 69 NY2d 199; Iazzetti v City of New York, 94 NY2d 183; Matter of Auburn Police Local 195, Council 82, Am. Fedn. of State, County & Mun. Empls., AFL-CIO v Helsby, 46 NY2d 1034.)
   OPINION OF THE COURT

R.S. Smith, J.

We hold that police discipline may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials.

Facts and Procedural History

Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd.

The Patrolmen’s Benevolent Association of the City of New York (NYCPBA) seeks to annul a decision by the Public Employment Relations Board (PERB) that the City need not bargain with the NYCPBA over five subjects, even though those subjects had been dealt with in an expired collective bargaining agreement. The expired agreement had provided: (1) that police officers being questioned in a departmental investigation would have up to four hours to confer with counsel; (2) that certain guidelines for interrogation of police officers would remain unchanged; (3) that a “joint subcommittee” would “develop procedures” to assure the timely resolution of disciplinary charges; (4) that a pilot program would be established to refer disciplinary matters to an agency outside the police department; and (5) that employees charged but not found guilty could petition to have the records of disciplinary proceedings expunged. PERB found that all these provisions concerned “prohibited subjects of bargaining.”

Supreme Court upheld PERB’s decision on the ground that the New York City Charter and Administrative Code, as interpreted in Matter of City of New York v MacDonald (201 AD2d 258, 259 [1st Dept 1994]), required that the discipline of New York City police officers be left to the discretion of the Police Commissioner. The Appellate Division affirmed, as do we. Matter of Town of Orangetown v Orangetown Policemen’s Benevolent Assn.

The Town of Orangetown and its Town Board brought this proceeding against the Orangetown Policemen’s Benevolent Association (Orangetown PBA) and a police officer, seeking to stay arbitration of a dispute between the Town and the officer over a disciplinary issue. The Orangetown PBA and the officer had sought arbitration pursuant to article 15 of the collective bargaining agreement between the Town and the union, which prescribed detailed procedures, culminating in an arbitration, for any “dispute concerning the discipline or discharge” of an Orangetown police officer. Supreme Court granted the application to stay arbitration. Relying on Matter of Rockland County Patrolmen’s Benevolent Assn. v Town of Clarkstown (149 AD2d 516 [2d Dept 1989]) and Matter of Town of Greenburgh (Police Assn. of Town of Greenburgh) (94 AD2d 771, 772 [2d Dept 1983]), Supreme Court held that article 15 is invalid under the Rockland County Police Act, because that act commits police discipline to the discretion of local authorities. The Appellate Division affirmed.

The specific issue that gave rise to this casé is now moot, because the Town and the officer have settled their differences, but the Town and the Orangetown PBA continue to disagree about article 15’s validity, and both sides have asked us to decide that question. We therefore convert the proceeding to a declaratory judgment action and declare that, as the courts below held, article 15 is invalid.

Discussion

We confront, not for the first time, a tension between the “strong and sweeping policy of the State to support collective bargaining under the Taylor Law” (Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778 [1976]) and a competing policy—here, the policy favoring strong disciplinary authority for those in charge of police forces. We have held that the policy of the Taylor Law prevails, and collective bargaining is required, where no legislation specifically commits police discipline to the discretion of local officials (Matter of Auburn Police Local 195, Council 82, Am. Fedn. of State, County & Mun. Empls., AFL-CIO v Helsby, 46 NY2d 1034 [1979], affg for reasons stated below 62 AD2d 12 [3d Dept 1978]). Since Auburn was decided, however, the First, Second and Third departments of the Appellate Division have held that, where such legislation is in force, the policy favoring control over the police prevails, and collective bargaining over disciplinary matters is prohibited (MacDonald, 201 AD2d at 259; Rockland County Patrolmen’s Benevolent Assn., 149 AD2d at 517; Town of Greenburgh, 94 AD2d at 771-772; Matter of City of Mount Vernon v Cuevas, 289 AD2d 674, 675-676 [3d Dept 2001]). We decide today that these Appellate Division holdings were correct.

The Taylor Law (Civil Service Law art 14) requires collective bargaining over all “terms and conditions of employment”:

“Where an employee organization has been certified or recognized . . . the appropriate public employer shall be, and hereby is, required to negotiate collectively with such employee organization in the determination of, and administration of grievances arising under, the terms and conditions of employment of the public employees” (Civil Service Law § 204 [2]).

We have often stressed the importance of this policy, and have made clear that “the presumption . . . that all terms and conditions of employment are subject to mandatory bargaining” cannot easily be Overcome (Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73, 79 [2000]; see also, e.g., Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660, 667-668 [1990]; Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122, 129 [1972]).

On the other hand, we have held that some subjects are excluded from collective bargaining as a matter of policy, even where no statute explicitly says so. Thus, we have held that local boards of education may not surrender, in collective bargaining agreements, their ultimate responsibility for deciding on teacher tenure (Cohoes, 40 NY2d at 778), or their right to inspect teachers’ personnel files (Board of Educ., Great Neck Union Free School Dist. v Areman, 41 NY2d 527 [1977]). We have held that a police department may not be required to bargain over the imposition of certain requirements on officers receiving benefits following injuries in the line of duty (Matter of Schenectady Police Benevolent Assn, v New York State Pub. Empl. Relations Bd., 85 NY2d 480, 483 [1995]), and that a city may not surrender, in collective bargaining, its statutory right to choose among police officers seeking promotion (Matter of Buffalo Police Benevolent Assn. [City of Buffalo], 4 NY3d 660 [2005]). And we have held that public policy bars enforcement of a provision in a collective bargaining agreement that would limit the power of the New York City Department of Investigation to interrogate city employees in a criminal investigation (Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273 [2000]).

In none of these cases did a statute exclude a subject from collective bargaining in so many words. In each case, however, we found a public policy strong enough to warrant such an exclusion. As we explained in Cohoes, the scope of collective bargaining may be limited by “ ‘plain and clear, rather than express, prohibitions in the statute or decisional law’ ” or “in some instances [,] by ‘[p]ublic policy . . . whether explicit or implicit in statute or decisional law, or in neither’ ” (40 NY2d at 778, quoting Syracuse Teachers Assn. v Board of Educ., Syracuse City School Dist., 35 NY2d 743, 744 [1974], and Matter of Susquehanna Val. Cent. School Dist. at Conklin [Susquehanna Val. Teachers’ Assn.], 37 NY2d 614, 616-617 [1975]).

Is there a public policy strong enough to justify excluding police discipline from collective bargaining? It might be thought this question could be answered yes or no, but the relevant statutes and case law are not so simple. In general, the procedures for disciplining public employees, including police officers, are governed by Civil Service Law §§ 75 and 76, which provide for a hearing and an appeal. In Auburn, a case involving police discipline, the Appellate Division rejected the argument that these statutes should be interpreted to prohibit collective bargaining agreements “that would supplement, modify or replace” their provisions (62 AD2d at 15), and we adopted the Appellate Division’s opinion (46 NY2d at 1035-1036). Thus, where Civil Service Law §§75 and 76 apply, police discipline may be the subject of collective bargaining.

But Civil Service Law § 76 (4) says that sections 75 and 76 shall not “be construed to repeal or modify” preexisting laws, and among the laws thus grandfathered are several that, in contrast to sections 75 and 76, provide expressly for the control of police discipline by local officials in certain communities. Such laws are applicable in the City of New York and in the Town of Orangetown, and are at the center of these two cases.

Section 434 (a) of the New York City Charter provides: “The [police] commissioner shall have cognizance and control of the government, administration, disposition and discipline of the department, and of the police force of the department” (emphasis added). New York City Administrative Code § 14-115 (a) provides that, in cases of police misconduct: “The commissioner shall have power, in his or her discretion, ... to punish the offending party.” Though these two provisions are now New York City legislation, both were originally enacted as state statutes; the Charter provision was adopted by the State Legislature in 1897 (L 1897, ch 378, enacting NY City Charter § 271), and the Code provision in 1873 (L 1873, ch 335, §§ 41, 55). Thus, they reflect the policy of the State that police discipline in New York City is subject to the Commissioner’s authority.

The Legislature has provided similarly for the discipline of town and village police forces, including those in Rockland County, where Orangetown is located. Section 7 of the Rockland County Police Act (L 1936, ch 526), similar in its wording to more general statutes, Town Law § 155 and Village Law § 8-804, provides in part:

“The town board shall have the power and authority to adopt and make rules and regulations for the examination, hearing, investigation and determination of charges, made or preferred against any member or members of such police department. Except as otherwise provided by law, no member or members of such police department shall be fined, reprimanded, removed or dismissed until written charges shall have been examined, heard and investigated in such manner or by such procedure, practice, examination and investigation as the board, by rules and regulations from time to time, may prescribe.”

Thus, the Legislature has committed police discipline in Orangetown to the “power and authority” of the Orangetown Town Board.

Appellate Division cases—one of which we have referred to favorably—have consistently held that legislation of this kind overcomes the presumption in favor of collective bargaining where police discipline is concerned. Thus, in 1983 the Appellate Division, Second Department held that police discipline in the Town of Greenburgh was not subject to collective bargaining; it distinguished Auburn on the ground that discipline in Greenburgh was committed to the authority of the Town Board or Board of Police Commissioners by the Westchester County Police Act (Town of Greenburgh, 94 AD2d at 771-772). In 1989, the same Court reached a similar conclusion under the Rock-land County Police Act, one of the laws at issue here (Rockland County Patrolmen’s Benevolent Assn., 149 AD2d at 517). In 1994, the Appellate Division, First Department held that the other laws at issue here—section 434 of the New York City Charter and section 14-115 of the New York City Administrative Code—excluded police discipline in New York City from collective bargaining. The Court held that the legislation “discloses a legislative intent and public policy to leave the disciplining of police officers ... to the discretion of the Police Commissioner” (MacDonald, 201 AD2d at 259). We quoted these words with approval in Matter of Montella v Bratton (93 NY2d 424, 430 [1999]) where we held, in a case not involving collective bargaining, that police discipline in New York City is not subject to the procedures prescribed in Civil Service Law §§ 75 and 76. Finally, in 2001, the Appellate Division, Third Department, endorsed the decisions of the First and Second Departments in Town of Greenburgh, Rockland County Patrolmen’s Benevolent Assn. and MacDonald, holding that the Charter of the City of Mount Vernon, like the legislation involved in the other Appellate Division cases, removed police disciplinary procedures from the scope of collective bargaining (Mount Vernon, 289 AD2d at 675-676).

The NYCPBA and the Orangetown PBA argue that this line of Appellate Division cases is wrong. In this they are supported by PERB, which, although it is bound by and has followed the Appellate Division decisions, now urges us to reject them. This is not a case, however, in which we defer to PERB’s judgment. The primary issue here is not the application of the Taylor Law to particular facts, an area in which PERB is entitled to deference (Matter of Poughkeepsie Professional Firefighters’ Assn., Local 596, IAFF, AFL-CIO-CLC v New York State Pub. Empl. Relations Bd., 6 NY3d 514 [2006] [decided today]; Matter of West Irondequoit Teachers Assn. v Helsby, 35 NY2d 46, 50-51 [1974]), but the relative weight to be given to competing policies, including those reflected in the New York City Charter, the New York City Administrative Code, and the Rockland County Police Act—legislation not within PERB’s area of expertise (see Schenectady Police Benevolent Assn., 85 NY2d at 485). We think the Appellate Division decisions evaluated these policies correctly.

While the Taylor Law policy favoring collective bargaining is a strong one, so is the policy favoring the authority of public officials over the police. As long ago as 1888, we emphasized the quasi-military nature of a police force, and said that “a question pertaining solely to the general government and discipline of the force . . . must, from the nature of things, rest wholly in the discretion of the commissioners” (People ex rel. Masterson v French, 110 NY 494, 499 [1888]). This sweeping statement must be qualified today; as Auburn demonstrates, the need for authority over police officers will sometimes yield to the claims of collective bargaining. But the public interest in preserving official authority over the police remains powerful. It was the basis for our holding, only last June, that the statutory right of a police commissioner to select “an officer to fill a position important to the safety of the community” may not be surrendered in a collective bargaining agreement (Buffalo Police Benevolent Assn., 4 NY3d at 664). The same policy has determined the result of other cases, including Matter of Silverman v McGuire (51 NY2d 228, 231-232 [1980]), where we rejected a resolution of a police disciplinary proceeding negotiated by a subordinate official, in light of “the sensitive nature of the work of the police department and the importance of maintaining both discipline and morale.”

The New York City Charter and Administrative Code, and the Rockland County Police Act, state the policy favoring management authority over police disciplinary matters in clear terms. In New York City, the police commissioner “shall have cognizance and control of the . . . discipline of the department” (NY City Charter § 434 [a]) and “shall have power, in his or her discretion^] ... to punish [an] offending party” (Administrative Code of City of NY § 14-115 [a]). In Rockland County, the town board “shall have the power and authority to adopt and make rules and regulations for the examination, hearing, investigation and determination of charges, made or preferred against any member or members of such police department” (Rockland County Police Act § 7). These legislative commands are to be obeyed even where the result is to limit the scope of collective bargaining. The issue is not, as the unions argue, whether these enactments were intended by their authors to create an exception to the Taylor Law; obviously they were not, since they were passed decades before the Taylor Law existed. The issue is whether these enactments express a policy so important that the policy favoring collective bargaining should give way, and we conclude that they do.

Accordingly, in Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., the order of the Appellate Division should be affirmed, with costs. In Matter of Town of Orangetown v Orangetown Policemen’s Benevolent Assn., the proceeding should be converted to a declaratory judgment action, and the order of the Appellate Division modified to declare that article 15 of the collective bargaining agreement is invalid, and the order should otherwise be affirmed, with costs to the Town of Orangetown and the Town Board of the Town of Orangetown.

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

In Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd.: Order affirmed, with costs.

In Matter of Town of Orangetown v Orangetown Policemen’s Benevolent Assn.: Order modified, etc.


author: ClPARICK, J.

text:
    [ 848 NE2d 460, 815 NYS2d 13]
    In the Matter of Charter Development Company, L.L.C., Appellant, v City of Buffalo et al., Respondents.
    Argued March 22, 2006;
    decided May 2, 2006

      POINTS OF COUNSEL

      Hinman Straub P.C., Albany (James T. Potter and David W Novak of counsel), for appellant.
    The denial of petitioner’s application for an exemption from taxation was contrary to the plain language of Education Law § 2853 (1) (d) and should be annulled. (Matter of Voicestream Wireless Corp. v Assessor of City of Troy, 2 Misc 3d 723; Matter of Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577; Tompkins v Hunter, 149 NY 117; Matter of Health Ins. Plan of Greater N.Y. v Sullivan, 57 NY2d 802; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588; Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v Town of Fallsburg, 78 NY2d 194; Matter of Smathers, 309 NY 487; Board of Educ., Hewlett-Woodmere Union Free School Dist. v Board of Assessors of County of Nassau, 54 AD2d 978, 41 NY2d 805; Matter of Congregation Machne Chaim v Kwak, 3 AD3d 708; Matter of 1605 Book Ctr. v Tax Appeals Trib. of State of N.Y., 83 NY2d 240.)

      Michael B. Risman, Corporation Counsel, Buffalo (Alan P Gerstman of counsel), for respondents.
    I. A tax exemption can be created only by express and unambiguous language. Tax exemption statutes are read in favor of the taxing power. (Matter of Mobil Oil Corp. v Finance Adm’r of City of N.Y., 58 NY2d 95; Matter of Colt Indus, v New York City Dept. of Fin., 66 NY2d 466; Matter of Grace v New York State Tax Commn., 37 NY2d 193; Matter of D.S. Alamo Assoc. v Commissioner of Fin. of City of N.Y., 71 NY2d 340; Matter of Pelham Masonic Historical Socy. of City Is. v Tax Commn. of City of N.Y., 266 AD2d 7; Matter of Marble Masonic Historical Socy. v Tuckahoe Assessment Review Bd., 262 AD2d 487.) II. The plain language of the Education Law provides that charter schools shall have the same tax exemptions as those granted to public schools. (Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; Bender v Jamaica Hosp., 40 NY2d 560.) III. Other public schools do not receive the tax exemption claimed by appellant. (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451.)
   OPINION OF THE COURT

ClPARICK, J.

In 1998, the Legislature enacted the New York Charter Schools Act (L 1998, ch 4), codified in Education Law §§ 2850 to 2857, which authorized “a system of charter schools to provide [educational] opportunities for teachers, parents, and community members” (§ 2850 [2]). Education Law § 2853 (1) (d) provides in pertinent part that “[a] charter school shall be exempt to the same extent as other public schools from all taxation, fees, assessments or special ad valorem levies on its earnings and its property, including property leased by the charter school.” Petitioner asserts that as the owner of real property leased to a charter school it is entitled to the exemption contained in the statute. We disagree.

In 2003, petitioner, Charter Development Company, L.L.C. (CDC), a for-profit Michigan company in the business of acquiring and developing sites for charter schools, acquired certain property in the City of Buffalo, developed it, and leased it to an affiliated corporation, which in turn subleased to Buffalo United Charter School. The sublease was for the period from July 1,

2003 to June 30, 2004 with a right of renewal for subsequent one-year terms, and required Buffalo United Charter School to pay an annual rent of $848,000 as well as “all taxes and special assessments . . . which shall be levied on or assessed against the Premises.” In November 2003, petitioner sought tax exemptions on its real property.

Pursuant to RPTL 420-a, CDC applied to the Assessor of the City of Buffalo for a real property tax exemption for the 2003-

2004 tax year on the ground that its lease of the property to Buffalo United Charter School caused the property to be exempt from real property taxes in accordance with Education Law § 2853 (1) (d). The Assessor denied CDC’s application for tax exemption relying upon a State Board of Real Property Services (SBRPS) opinion which held that since the Education Law equated a charter school’s tax exempt status with that of a public school, and since neither the building nor the underlying land was owned by the school as required by Real Property Tax Law § 408, the premises leased by the charter school were not entitled to an exemption “solely on the basis of the lessee’s status” (11 Ops Counsel SERFS No. 37 [2002]). CDC then sought review of the Assessor’s determination by the Board of Assessment Review of the City of Buffalo which upheld the Assessor’s determination.

Thereafter, CDC commenced this combined CPLR article 78 and Real Property Tax Law article 7 proceeding, seeking to annul the decision of the Assessor denying its application for an exemption for the 2003-2004 tax year and for a judgment declaring that the property leased by the charter school is exempt from real property taxes pursuant to Education Law § 2853 (1) (d). In response to the petition, the City of Buffalo and its Assessor and Board of Assessment Review (City) moved to dismiss the petition. In an oral opinion, Supreme Court held that the statute provides charter schools with the same tax exemptions as public schools in regard to property they own and leased improvements made thereon, citing to the same SBRPS opinion. Supreme Court, in considering the full text of the statute, dismissed the petition and held that the Legislature did not intend to afford greater tax exempt status to charter schools than that of public schools by exempting real property leased by charter schools from taxation. The Appellate Division affirmed, holding that the statute clearly entitles a charter school to only those tax exemptions given to public schools, and concluding that public schools are exempt on real property that they own, not on real property that they lease. We now affirm.

Initially, “[w]here the language of a statute is clear and unambiguous, courts must give effect to its plain meaning” (Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY2d 86, 91 [2001]). Additionally, “all parts of an act are to be read and construed together to determine the legislative intent” (McKinney’s Cons Laws of NY, Book 1, Statutes § 97).

Furthermore, in construing a tax exemption statute, the well-settled rule is that “[i]f ambiguity or uncertainty occurs, all doubt must be resolved against the exemption” (People v Brooklyn Garden Apts., 283 NY 373, 380 [1940]). In Matter of Mobil Oil Corp. v Finance Adm’r of City of N.Y. (58 NY2d 95, 99 [1983]), we held that “[t]ax exclusions are never presumed or preferred and before [a] petitioner may have the benefit of them, the burden rests on it to establish that the item comes within the language of the exclusion.” Moreover, a statute authorizing a tax exemption will be construed against the taxpayer unless the taxpayer identifies a provision of law plainly creating the exemption (see People ex rel. Savings Bank of New London v Coleman, 135 NY 231, 234 [1892]; see also Matter of Grace v New York State Tax Commn., 37 NY2d 193, 196 [1975]). Thus, the taxpayer’s interpretation of the statute must not simply be plausible, it must be “the only reasonable construction” (Matter of Federal Deposit Ins. Corp. v Commissioner of Taxation & Fin., 83 NY2d 44, 49 [1993] [internal quotation marks and citation omitted]).

In determining whether CDC may take advantage of the tax exemption, it is first necessary to identify whom the Legislature intended to benefit from the tax exemption and determine whether the exemption may be applied to the property at issue. Education Law § 2853 (1) (d) contains a clear statement indicating that charter schools are the beneficiaries of the same tax exemptions afforded public schools. It is also clear that the next part of the sentence—“all taxation, fees, assessments or special ad valorem levies on its earnings and its property”—identifies the assets to which the exemption may be applied (Education Law § 2853 [1] [d]). The sentence concludes with the phrase— “including property leased by the charter school” (id.).

Giving a plain and logical meaning to the language of the statute, we conclude that “including property leased by the charter school” can neither be read in isolation from the words it modifies—“its property”—as CDC would have us read it, nor from the rest of the sentence, which states that a charter school is exempt from taxation to the same extent as other public schools.

CDC maintains that the plain language of the concluding phrase provides for a tax exemption regardless of whether the owner of the property is a charter school or a private feeholder. Interpreting the language of the statute as CDC would have us do results in a construction that does not give effect to the other words in the statute. We thus conclude that Education Law § 2853 (1) (d) clearly indicates that the phrase “property leased by the charter school” simply further defines the type of property that would be exempt to the same extent as other public schools, and does not create a separate exemption for property owned by other than the charter school.

The same applies to property leased by a public (noncharter) school from a private landowner. It, too, would be subject to taxation as this exemption applies only to real property or buildings owned by a school district (see RPTL 408). The 1985 amendment to RPTL 408 which includes an additional exemption for “all improvements thereon leased by such a district” was limited to structures, e.g. portable classrooms, erected on property owned by the districts. There is nothing in the language of Education Law § 2853 (1) (d) to evince a legislative intent to create a separate and express exemption for property leased to charter schools other than the exemption already granted to other public schools by RPTL 408.

CDC has thus failed to sustain its burden of unequivocal entitlement to the exemption it seeks as it has not identified any provision in the Charter Schools Act plainly creating an exemption for private property leased to a charter school. Moreover, our interpretation provides charter schools with the same exemption status as accorded to public schools, and no more, as clearly contemplated by the Legislature.

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

Chief Judge Kaye and Judges G.B. Smith, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed, with costs.

      . Since the property was located in an Empire Zone, CDC was granted a tax exemption that had the effect of reducing the property’s taxable assessment from approximately $1.7 million to $150,000 which corresponded to a reduction of property taxes to approximately $6,600 for the 2003-2004 tax year.

      . RPTL 408 provides:
      “Notwithstanding any limitation contained in section four hundred six of this chapter, all real property owned by a school district or board of cooperative educational services and all improvements thereon leased by such a district or board provided that such leased improvements are used for educational purposes and provided, further, that such lease provides that such district or board is liable for all taxation, special ad valorem levies and special assessments levied upon such improvements shall be exempt from taxation and exempt from special ad valorem levies and special assessments to the extent provided in section four hundred ninety of this chapter” (emphasis added).


author: Graffeo, J.

text:
    [ 848 NE2d 454, 815 NYS2d 7]
    The People of the State of New York, Respondent, v Thomas Burton, Appellant.
    Argued March 23, 2006;
    decided May 2, 2006

      POINTS OF COUNSEL

      Legal Aid Society, Criminal Appeals Bureau, New York City (Laura Boyd and Laura R. Johnson of counsel), for appellant.
    The court erred in summarily denying appellant’s motion to suppress the drugs where appellant, who was charged only with drug possession, alleged that he was walking alone on a street when, for no apparent lawful reason, the police stopped and searched him and, according to the officer, recovered crack cocaine from appellant’s person. (People v Mendoza, 82 NY2d 415; People v Brown, 256 AD2d 42; People v Coleman, 82 NY2d 415; People v Whitfield, 81 NY2d 904; Dunaway v New York, 442 US 200; Mapp v Ohio, 367 US 643; People v Gruden, 42 NY2d 214; People v Coleman, 82 NY2d 415; People v Sutton, 91 AD2d 522; People v Sierra, 179 AD2d 601.)

      Robert M. Morgenthau, District Attorney, New York City (Karen Schlossberg and Sandra E. Cavazos of counsel), for respondent.
    The court properly denied defendant’s motion to suppress physical evidence without a hearing. (People v Coleman, 82 NY2d 415; People v Ramirez-Portoreal, 88 NY2d 99; People v Brown, 256 AD2d 42, 93 NY2d 871; People v Reynolds, 71 NY2d 552; People v Gomez, 67 NY2d 843; People v Mendoza, 82 NY2d 415; People v Gruden, 42 NY2d 214; Rakas v Illinois, 439 US 128; United States v Salvucci, 448 US 83; People v Rodriguez, 69 NY2d 159.)
   OPINION OF THE COURT

Graffeo, J.

In this case, the People contend that defendant’s motion to suppress physical evidence seized during a search of his person was properly denied without a hearing because he failed to proffer sufficient factual allegations demonstrating that he had standing to challenge the search. The People argue that defendant’s motion was insufficient because he did not admit to possessing the drugs at the time of the search, instead relying on a police officer’s assertion that narcotics were found in defendant’s pocket. We hold that the statements in defendant’s motion papers that he was stopped and searched by the police without legal justification, and that the police claimed to have discovered drugs on defendant during the search, were sufficient to satisfy the factual allegation requirement of CPL 710.60 (1) and thereby establish standing to seek suppression.

On the evening of January 16, 2001, a police officer approached defendant Thomas Burton on a Manhattan street. The officer proceeded to search him and, according to the felony complaint, discovered a plastic bag containing crack cocaine in a front pocket of the sweatpants defendant was wearing underneath his jeans. A grand jury subsequently returned an indictment charging him with one count of criminal possession of a controlled substance in the fourth degree.

In a motion seeking suppression of the drugs, defendant’s attorney averred that defendant was walking alone on the street when he was stopped and searched “for no apparent lawful reason.” Defense counsel noted that the police officer who searched defendant stated that “he recovered one bag containing crack/ cocaine from the defendant’s person.” Counsel further alleged that “[n]o contraband was in plain view,” defendant had not consented to the search, no warrant permitting the search had been issued, and the police officer did not have probable cause to instigate the search. The People opposed the application, arguing that defendant lacked standing to ask for suppression because he did not expressly acknowledge that he had, in fact, personally possessed the cocaine that was recovered from his person, and his reliance on the police officer’s allegation in the felony complaint was inadequate to confer standing.

Supreme Court agreed with the People and denied the motion without a hearing. The court determined that defendant lacked standing to pursue suppression of the contraband in the absence of his personal affirmation that the drugs were recovered from his person. Defendant later pleaded guilty to criminal possession of a controlled substance in the fourth degree and agreed to be sentenced as a second felony offender to a minimum indeterminate prison term of 3 to 6 years, with the understanding that if he complied with certain terms of the negotiated plea, he would be permitted to withdraw his plea in order to plead guilty to a lesser possession offense. Defendant, however, failed to abide by those requirements and was eventually sentenced to 3V2 to 7 years of imprisonment.

Defendant appealed pursuant to CPL 710.70 (2), challenging the denial of his suppression application, and the Appellate Division affirmed, concluding that the motion was properly denied without a hearing because defendant failed to adequately allege standing to seek suppression. A Judge of this Court granted leave to appeal and we now reverse.

Article 710 of the Criminal Procedure Law delineates the substantive and procedural rules that govern a motion to suppress evidence. As relevant to this case, a pretrial suppression motion “must state the ground or grounds of the motion and must contain sworn allegations of fact, whether of the defendant or of another person or persons, supporting such grounds” (CPL 710.60 [1]). A trial court is required to grant a hearing if the defendant “raise [s] a factual dispute on a material point which must be resolved before the court can decide the legal issue” of whether evidence was obtained in a constitutionally permissible manner (People v Gruden, 42 NY2d 214, 215 [1977]). Because hearings on suppression motions “are not automatic or generally available for the asking by boilerplate allegations” (People v Mendoza, 82 NY2d 415, 422 [1993]), such a request may be summarily denied if the motion papers do not provide a sufficient legal basis for suppression (see CPL 710.60 [3] [a]) or where “[t]he sworn allegations of fact do not as a matter of law support the ground alleged” (CPL 710.60 [3] [b]).

There is no legal basis for suppression and, hence, no need for a hearing, unless the accused alleges facts that, if true, demonstrate standing to challenge the search or seizure {see People v Rodriguez, 69 NY2d 159, 161 [1987]). Standing exists where a defendant was aggrieved by a search of a place or object in which he or she had a legitimate expectation of privacy (see People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]). This burden is satisfied if the accused subjectively manifested an expectation of privacy with respect to the location or item searched that society recognizes to be objectively reasonable under the circumstances (see id.).

Defendant’s motion papers, which averred that he was searched by a police officer without probable cause or other legal justification, adequately pleaded a legal basis for suppression as required by CPL 710.60 (1). Under the Fourth Amendment to the United States Constitution, individuals possess a legitimate expectation of privacy with regard to their persons (see US Const Amend IV [“(t)he right of the people to be secure in their persons . . . against unreasonable searches and seizures!) shall not be violated”]; People v Gonzalez, 115 AD2d 73, 77 [1st Dept 1986], affd 68 NY2d 950 [1986]). Here, defendant undeniably had “a reasonable expectation of freedom from governmental intrusion” (Mancusi v DeForte, 392 US 364, 368 [1968]) in the place searched by the police—the pocket of his pants. He also subjectively manifested such an expectation since anything concealed in the pocket was in his sole possession and hidden from public view. Indeed, the People do not dispute that defendant had a protected privacy interest in the article of clothing that was searched. Instead, they argue that, because defendant did not specifically admit or acknowledge that he possessed the drugs, there were insufficient “sworn allegations of fact” to assert standing to challenge the legality of the police conduct and summary denial of his motion was therefore permitted under CPL 710.60 (3) (b).

This contention is inconsistent with the language of CPL 710.60 and our precedent. Subdivision (1) of the statute specifies that the allegations of fact in support of a motion to suppress may come from “the defendant or . . . another person or persons” (CPL 710.60 [1] [emphasis added]). Consistent with this text, we have repeatedly observed that, in assessing the adequacy of a motion to suppress tangible evidence, a defendant is entitled to rely on the People’s proof to demonstrate standing (see e.g. People v Ramirez-Portoreal, 88 NY2d at 109; People v Whitfield, 81 NY2d 904, 906 [1993]; People v Wesley, 73 NY2d 351, 358 n 1 [1989]; People v Gonzalez, 68 NY2d at 951; People v Gomez, 67 NY2d 843, 844 [1986]). The necessary allegations of fact may be gleaned in part from statements made by law enforcement officials in an accusatory instrument (see People v Gomez, 67 NY2d at 844) or from testimonial statements elicited by the prosecution (see People v Gonzalez, 68 NY2d at 951). Our decisions further point out that witnesses for the People— including police officers—are among the “[ ]other person[s]” (CPL 710.60 [1]) whose factual assertions may be used in a motion to suppress (see People v Ramirez-Portoreal, 88 NY2d at 105-106, 111-112; People v Gonzalez, 68 NY2d at 951). Based on this case law, defendant could meet his evidentiary burden by supplementing the averments made in his motion to dismiss with the police officer’s statement that the drugs were recovered from defendant’s person. Defendant was therefore not required to personally admit possession of the contraband in order to comply with the factual pleading requirement of CPL 710.60.

Although defendant was allowed to utilize the People’s evidence to satisfy this standing threshold, that proof alone was not enough to require a hearing because the accusation that contraband was recovered from defendant did not create an issue of fact as to whether the search and seizure were the result of a Fourth Amendment violation. Whether the remaining assertions in the motion papers gave rise to a factual question on the standing issue is answered by People v Mendoza (82 NY2d 415 [1993]). In that case, we contrasted two hypothetical street-crime situations that frequently lead to arrests—a buy-and-bust operation and a police seizure premised on the suspicious or unlawful behavior of a suspect. Despite identical statements by both defendants that they were standing on a public street doing nothing wrong at the time of the seizure and search, the allegations necessary to entitle each defendant to a hearing differed due to the particular factual circumstances surrounding the arrests.

In a buy-and-bust scenario, probable cause is generally based upon an accused’s participation in a narcotics transaction. To raise an issue of fact that necessitates a hearing, a defendant has to “deny participating in the transaction or suggest some other grounds for suppression” (id. at 429). In the absence of such a denial, the motion court is left with the People’s uncontested averment that the accused participated in the sale or purchase—which is sufficient on its face to provide probable cause justifying an arrest and ensuing search. In such cases, there may be no fact question pertaining to Fourth Amendment compliance that needs to be resolved by a hearing.

But where probable cause for a search is premised on the furtive behavior of a person, we have observed that an accused can “raise a factual issue simply by alleging that he or she was standing on the street doing nothing wrong when the police approached and searched” and discovered contraband in the process (id). A claim of this nature questions whether police action was legally authorized at its inception, and in this situation a hearing is required to determine, as a factual matter, whether the defendant engaged in suspicious or unlawful conduct giving rise to probable cause justifying the search.

The facts of this case align with this latter example. Here, the police officer alleged that he approached and searched defendant, and that a quantity of cocaine was found in his pocket. Relying on the original accusatory instrument, defense counsel acknowledged that a search was conducted, and referenced the arresting police officer’s statement that one bag of crack cocaine was recovered from defendant’s person. Defense counsel also maintained that the search violated the Fourth Amendment because defendant had been standing on the street doing nothing suspicious or illegal when the police detained him and searched his person. The propriety of the search having been placed in dispute, a hearing was needed to determine what, if any, conduct by defendant precipitated the search and whether that conduct rose to a level that constitutionally justified the intrusion. On these facts, defendant’s failure to specifically admit possession of the cocaine that was allegedly seized from his pocket was not fatal to his suppression claim and the motion should not have been summarily denied for lack of standing.

Furthermore, our conclusion does not alter the existing evidentiary requirements for suppression motions. We therefore reject the People’s claim that a finding of standing on the facts presented in this case results in the resurrection of the “automatic standing” doctrine, which was abrogated by the Supreme Court in United States v Salvucci (448 US 83, 85 [1980]) and by this Court as a matter of state law in People v Ponder (54 NY2d 160, 165 [1981]). As we now clarify, standing does not arise from a defense motion to suppress that merely states, as attested by police, that the arresting officer conducted a search of the accused’s person and allegedly found narcotics in an article of clothing—this alone does not create an issue of fact as to whether a Fourth Amendment violation occurred. A defendant must additionally assert that the search was not legally justified and there must be sufficient factual allegations to support that contention (see CPL 710.60 [1]). Thus, a defendant’s entitlement to seek suppression is not premised solely on the fact that he or she is charged with a possessory offense and, consequently, the automatic standing doctrine has no application in criminal prosecutions premised on the accused’s personal possession of contraband.

Accordingly, the order of the Appellate Division should be reversed, the plea vacated and the case remitted to Supreme Court, New York County, for a suppression hearing.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Read and R.S. Smith concur.

Order reversed, etc.

      . The factual allegation requirement does not apply to motions to suppress allegedly involuntary statements made by a defendant or improper identifications (see CPL 710.60 [3] [b]; People v Jones, 95 NY2d 721, 725 n 2 [2001]).

      . [2] To the extent People v Brown (256 AD2d 42 [1st Dept 1998], lv denied 93 NY2d 871 [1999]) indicates that, notwithstanding the People’s factual allegations, a defendant charged with possessing contraband on his person must admit that he did, in fact, possess the seized item in order to have standing to seek suppression, it should not be followed.

      . One “narrow exception” to the abandonment of the automatic standing doctrine has been recognized “[i]n cases where a defendant is charged with possession of a gun based on the statutory presumption found in Penal Law § 265.15 (3), which attributes possession of a gun to the passengers in an automobile simply by virtue of their presence in the car where the gun is found” (People v Wesley, 73 NY2d at 360; see People v Millan, 69 NY2d 514, 520 [1987]). We have held that a defendant in such a case “has a right to challenge the legality of the search regardless of whether he or she is otherwise able to assert a cognizable Fourth Amendment interest” (People v Wesley, 73 NY2d at 360).