author: Chief Judge Kaye.

text:
    [855 NE2d 791, 822 NYS2d 475]
    The People of the State of New York, Respondent, v Thomas Utsey, Appellant. The People of the State of New York, Respondent, v Michael Nelson, Appellant. The People of the State of New York, Respondent, v Corey Smith, Appellant.
    Argued September 7, 2006;
    decided September 21, 2006

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Margaret E. Knight and Richard M. Greenberg of counsel), for appellant in the first above-entitled action.
    Where Thomas Utsey’s judgment of conviction is still pending on direct appeal, and therefore not yet final, Mr. Utsey is entitled to the benefit of the ameliorative statutory changes of the Drug Law Reform Act of 2004. (People v Behlog, 74 NY2d 237; People v Oliver, 1 NY2d 152; People v Walker, 81 NY2d 661; People v Denton, 7 Misc 3d 373; People v Basir, 141 AD2d 745; People v Pepples, 32 AD2d 1041, 27 NY2d 785; People v Festo, 96 AD2d 765, 60 NY2d 809; Beard v Banks, 542 US 406; Ross v Artuz, 150 F3d 97; Torres v Irvin, 33 F Supp 2d 257.)

      Robert T Johnson, District Attorney, Bronx (Alexis Pimentel, Joseph N. Ferdenzi and Stanley R. Kaplan of counsel), for respondent in the first above-entitled action.
    Defendant is not entitled to a reduction under the Drug Law Reform Act of 2004. (People v Oliver, 1 NY2d 152; People v Walker, 81 NY2d 661; Cahen v Boyland, 1 NY2d 8; Gillespie v Zittlosen, 60 NY 449; People v Stevens, 91 NY2d 270; People v Nelson, 21 AD3d 861, 6 NY3d 757; People v Smith, 23 AD3d 280, 6 NY3d 759; People v Goode, 25 AD3d 723, 6 NY3d 848; People v Walker, 26 AD3d 676; People v Denton, 7 Misc 3d 373.)

      Center for Appellate Litigation, New York City (Claudia S. Trupp and Robert S. Dean of counsel), for appellant in the second and third above-entitled actions.
    Appellant, who was sentenced after the effective date of the Drug Law Reform Act of 2004, is entitled to the benefit of the ameliorative sentencing provisions contained therein, even though he committed his crime before its effective date, where the purpose behind the reform legislation was to correct the unjustifiable harshness of New York State’s sentencing laws as they applied to nonviolent drug offenders such as appellant. (People v Singletary, 7 Misc 3d 1004[A], 2005 NY Slip Op 50441[U]; People v Walker, 81 NY2d 661; People v Oliver, 1 NY2d 152; People v Behlog, 74 NY2d 237; People v Hayes, 140 NY 484; People v Roper, 259 NY 170; People v Denton, 7 Misc 3d 373; People v Martinez, 7 Misc 3d 1022[A], 2005 NY Slip Op 50699[U]; People v Armond, 7 Misc 3d 1014[A], 2005 NY Slip Op 50592[U]; People v Murray, 7 Misc 3d 636.)

      Robert M. Morgenthau, District Attorney, New York City 0Christopher P Marinelli and Mark Dwyer of counsel), for respondent in the second and third above-entitled actions.
    The 2004 amendments to the drug sentencing laws were not applicable to defendant’s case. (People v Oliver, 1 NY2d 152; People v Behlog, 74 NY2d 237; People v Walker, 81 NY2d 661; People v Weinberg, 83 NY2d 262; People v Goode, 25 AD3d 723; People v Sutton, 199 AD2d 878; Matter of Deutsch v Catherwood, 31 NY2d 487; Matter of Mulligan v Murphy, 14 NY2d 223; Cahen v Boyland, 1 NY2d 8; People v Stevens, 91 NY2d 270.)
   OPINION OF THE COURT

Chief Judge Kaye.

In these three appeals, we are asked to determine whether the Legislature intended to give retroactive effect to the ameliorative sentencing provisions of the Drug Law Reform Act of 2004. We conclude that it did not.

Among its many provisions, the Drug Law Reform Act (DLRA) (L 2004, ch 738) replaced the indeterminate sentencing scheme of the Rockefeller Drug Laws with a determinate system, and reduced mandatory minimum prison sentences for nonviolent felony drug offenders. Defendants, each convicted of a drug felony, seek to benefit from these reductions.

We note at the outset that these cases come to us in distinct procedural postures. Although all three defendants committed their crimes prior to the enactment of the DLRA, defendants Nelson and Smith had not yet been sentenced when the legislation was passed and came into effect. Defendant Utsey, by contrast, had already been sentenced under the old laws by the time the Legislature adopted the DLRA. Further, the sentencing courts below took differing views of the issue now posed. The court in Nelson held that the new statute did not apply to the defendant’s case, whereas the court in Smith granted the defendant’s application to be sentenced in accordance with the DLRA’s reduced penalties. Reversing in Smith and affirming in the others, the Appellate Division determined that none of these defendants was eligible to be sentenced under the DLRA. We agree.

The question is solely one of legislative intent. Under the “amelioration doctrine,” a statutory amendment reducing the punishment for a particular crime is generally to be applied to all cases decided after the effective date of the enactment — even though the underlying act may have been committed before that date — except when the Legislature, in enacting the amendment, has expressed a contrary intent (see People v Behlog, 74 NY2d 237, 240 [1989]; People v Oliver, 1 NY2d 152, 159-160 [1956]).

The general rationale for the amelioration doctrine “is that by mitigating the punishment the Legislature is necessarily presumed — absent some evidence to the contrary — to have determined that the lesser penalty sufficiently serves the legitimate demands of the criminal law. Imposing the harsher penalty in such circumstances would serve no valid penological purpose” (Behlog, 74 NY2d at 240 [citations omitted]). However, when the Legislature manifests a specific intent that an ameliorative amendment not be retroactively applied to underlying acts committed before the amendment’s effective date, then the usual presumption — that the Legislature must have intended that the harsher penalty should no longer be applied to anyone — will have been rebutted, and the legislative will that the amendment apply only prospectively must be given effect.

People v Festo (60 NY2d 809 [1983], affg 96 AD2d 765 [1st Dept 1983]) involved an amendment reducing the unlawful sale of one or more (but less than two) ounces of a narcotic drug from criminal sale of a controlled substance in the first degree to criminal sale in the second degree (see L 1979, ch 410, § 21, amdg Penal Law § 220.43 [1]). In Festo, we determined that the Legislature’s statements that “the provisions of this act do not apply to or govern the construction of and punishment for any offense committed prior to the effective date of this act,” and that “[s]uch an offense must be construed and punished according to the provisions of law existing at the time of the commission thereof in the same manner as if this act had not been enacted” (L 1979, ch 410, § 29), specifically prohibited the retroactive application of the act’s ameliorative provisions.

Similarly, in enacting the DLRA, the Legislature specified that its reduced sentencing provisions “shall take effect on the thirtieth day after it shall have become a law, and such provisions . . . shall apply to crimes committed on or after the effective date thereof’ (L 2004, ch 738, § 41 [d-1]). In so providing, the Legislature manifested a clear intent to negate the amelioration doctrine with respect to these provisions.

The Legislature’s intent that the DLRA’s reduced sentencing provisions be applied prospectively only is further evidenced by the inclusion in the act of other ameliorative provisions designed to afford distinct sentencing relief to defendants who committed their crimes prior to its effective date. Thus, the Legislature provided that felony drug offenders sentenced under the old law may now be eligible to earn an additional one-sixth merit time reduction (see L 2004, ch 738, § 30; Correction Law § 803 [1] [d]), and to obtain early termination of parole (see L 2004, ch 738, §§ 37, 38, amdg Executive Law § 259-j).

That the DLRA delayed the effective date of its new sentencing provisions until 30 days after the law was signed is additional evidence that the provisions were meant to apply prospectively. “The postponement of the effective date of each amendment furnishes critical and clear indicia of intent. If the amendments were to have retroactive effect, there would have been no need for any postponement” (Matter of Deutsch v Catherwood, 31 NY2d 487, 489 [1973]).

Defendant Utsey’s claim must be rejected for yet another reason. He not only had committed his crime before enactment of the DLRA, but also — unlike defendants Nelson and Smith— had already been sentenced before its effective date. An ameliorative amendment generally “cannot be applied in favor of an offender tried and sentenced to imprisonment before its enactment. This inevitably follows from the settled rule that, once final judgment has been pronounced, a change in the law does not arrest or interfere with execution of the sentence” (Oliver, 1 NY2d at 163 [internal quotation marks and citations omitted]; accord People v Walker, 81 NY2d 661, 667 [1993]). Utsey was properly sentenced in accordance with the law applicable at the time of entry of his final judgment of conviction.

Despite these settled principles, defendants nevertheless argue, in effect, that the Legislature should have made the DLRA retroactive, and that under a fairer sentencing scheme they would have received lesser sentences. But whether the Legislature might or should have enacted broader reform is irrelevant to the only question before us — whether defendants were meant to be included within the more limited reform the Legislature did enact. Under the plain language of the statute, the relevant provisions of the DLRA are intended to apply only to crimes committed after its effective date. That being so, defendants are not eligible for the reduced penalties contained in the new law.

Accordingly, in each case, the order of the Appellate Division should be affirmed.

Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

In each case: Order affirmed.

      . Upon his guilty plea to the class B felony of criminal sale of a controlled substance in the third degree, Utsey was sentenced as a second felony offender to the mandatory minimum prison term of 4V2 to 9 years. Under the DLRA, however, his minimum possible sentence would have been a determinate term of 3x/2 years, plus postrelease supervision (see L 2004, ch 738, § 36, adding Penal Law § 70.70 [3] [b] [i]).

      . Having pleaded guilty to the class D felony of criminal sale of a controlled substance in the fifth degree, Nelson was therefore sentenced, as a second felony offender, to the mandatory minimum term of 2 to 4 years’ imprisonment. Under the DLRA, he would have been eligible for a minimum determinate term of IV2 years, plus postrelease supervision (see L 2004, ch 738, § 36, adding Penal Law § 70.70 [3] [b] [iii]).

      . Convicted by a jury of the class B felony of criminal sale of a controlled substance in the third degree, Smith, if sentenced under the old law, faced, as a second felony offender, a mandatory minimum term of imprisonment of 4V2 to 9 years. The sentencing court, however, imposed a determinate term of 3V2 years, plus postrelease supervision — the statutory minimum under the DLRA (see L 2004, ch 738, § 36, adding Penal Law § 70.70 [3] [b] [i]).

        . Technically, the amelioration doctrine “does not involve ‘retroactivity’ in the classic sense” of the application of a new rule of law to final cases or cases on direct appellate review, but rather “only involves application of the new law to prosecutions before sentence” (Behlog, 74 NY2d at 239 n 1 [citations omitted]). Nevertheless, the case law generally uses the terms “retroactively” and “retroactive” (see id.').

      . The act was signed into law on December 14, 2004. Thus, the effective date of the new sentencing provisions was January 13, 2005.

      . By specific contrast, the Legislature expressly provided that one particular section of the DLRA (see L 2004, ch 738, § 20, adding Penal Law § 60.04 [6]) — authorizing sentencing courts to direct the enrollment of certain felony drug offenders in the comprehensive alcohol and substance abuse treatment program — is intended to apply even to crimes committed before the new law’s effective date. Thus, the act’s reduced sentencing “provisions, with the exception of subdivision 6 of section 60.04 of the penal law as added by section twenty of this act, shall apply to crimes committed on or after the effective date thereof’ (L 2004, ch 738, § 41 [d-1] [emphasis added]).


source: Caselaw Access Project

author: R.S. Smith, J.

license: Public Domain

text:
    [855 NE2d 1160, 822 NYS2d 746]
    In the Matter of Markim Q., a Person Alleged to be a Juvenile Delinquent, Respondent.
    Argued September 5, 2006;
    decided September 21, 2006

      POINTS OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Deborah A. Brenner, Leonard Koerner, Edward F.X. Hart and Drake A. Colley of counsel), for appellant.
    I. The Second Department erred in reaching the merits of respondent’s unpreserved argument. (Matter of Neftali D., 85 NY2d 631; Matter of Carliesha C., 17 AD3d 1057; Matter of Eric F., 126 AD2d 39; People v Iannone, 45 NY2d 589; Matter of Michael M., 3 NY3d 441; Matter of Rodney J., 83 NY2d 503; Matter of Jose R., 83 NY2d 388; Matter of Vincent B., 239 AD2d 925; People v Gray, 86 NY2d 10; Matter of Alpheaus M., 168 AD2d 208.) II. In any event, the attendance record was sufficient to support the violation of probation petition because it constituted prima facie evidence of respondent’s truancy, and because it was undisputedly sufficient to prove his truancy by a preponderance of the evidence. (Matter of Judge Rotenberg Educ. Ctr. v Maul, 91 NY2d 298; People v Gristina, 186 Misc 2d 877; Fragetti v Fragetti, 262 AD2d 527; Matter of Porcelain v Porcelain, 94 Misc 2d 891; People v Deegan, 69 NY2d 976; People v Kinne, 71 NY2d 879; Matter of Jahron S., 79 NY2d 632; Johnson v Lutz, 253 NY 124; People v Kennedy, 68 NY2d 569; Ed Guth Realty v Gingold, 34 NY2d 440.)

      Legal Aid Society, Juvenile Rights Division, New York City (Gary Solomon and Tamara A. Steckler of counsel), for respondent.
    I. The Second Department’s holding that the absence of any sworn allegations in the probation violation petition is a nonwaivable jurisdictional defect was compelled by this Court’s previous decisions regarding the sufficiency of original juvenile delinquency petitions. (Matter of Jahron S., 79 NY2d 632; Mat

      ter of Todd D., 288 AD2d 740; Matter of Michael C., 238 AD2d 680; Matter of Felix V., 216 AD2d 401; Matter of Neftali D., 85 NY2d 631; Matter of David T., 75 NY2d 927; Matter of Detrece H., 78 NY2d 107; Matter of Edward B., 80 NY2d 458; Matter of Rodney J., 83 NY2d 503; Matter of Michael M., 3 NY3d 441.) II. The Second Department properly found the truancy charge in the probation violation petition to be defective because the school attendance record supporting the charge does not contain the sworn allegations required by Family Court Act § 360.2 (2), because the statute does not permit use of a certified but unsworn business record, and because a certified business record is not the functional equivalent of a sworn deposition. (Matter of Neftali D., 85 NY2d 631; Matter of Steven DD., 243 AD2d 890; Matter of Carlos MM., 238 AD2d 707; Matter of Lionel O., 288 AD2d 705; Matter of Charles BB., 277 AD2d 756; Matter of Evan U., 244 AD2d 691; People v Phillipe, 142 Misc 2d 574; Matter of Deshone C., 207 AD2d 756, 85 NY2d 801; Matter of Rodney J., 108 AD2d 307; People v Pacer, 6 NY3d 504.)
   OPINION OF THE COURT

R.S. Smith, J.

We have held that a petition originating a juvenile delinquency proceeding contains a nonwaivable jurisdictional defect when the crime charged and the alleged delinquent’s commission of it are not supported by sworn, nonhearsay allegations (Matter of Michael M., 3 NY3d 441 [2004]; see Matter of Neftali D., 85 NY2d 631 [1995]; Matter of Rodney J., 83 NY2d 503 [1994]). We now hold that the same is not true of a petition filed in the course of a juvenile delinquency proceeding alleging a violation of probation (a VOP petition). Only a defect in the petition originating the proceeding is “jurisdictional” in the sense that it need not be preserved and can be raised for the first time on appeal.

Facts and Procedural History

On June 11, 2003, after a fracas between Markim Q. and a fellow student at his high school, the Corporation Counsel of the City of New York filed a petition charging Markim with acts that, if committed by an adult, would constitute assault in the third degree, attempted assault in the third degree, and menacing in the third degree. There is no claim that this original petition was defective in any way. Markim admitted the attempted assault charge, and Family Court adjudicated him a juvenile delinquent and placed him on probation for a year.

On January 20, 2004, the Department of Probation filed, in the same proceeding and under the same docket number, a VOP petition alleging that Markim had violated several conditions of his probation, including one requiring that he “attend school regularly.” In support of that allegation, there was annexed to the VOP petition a computer printout titled “Individual Student Attendance Report” dated December 2, 2003, showing that in November 2003 Markim had been present in school on only eight days. The report was accompanied by two signed documents, one in which the principal of the school authorized a school employee to certify its records, and another in which the employee certified that the report was an accurate copy of a record concerning Markim, that the record was made in the regular course of business, and that it was the regular course of business to make such records at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.

Markim raised no objection to the sufficiency of the VOP petition. At a hearing on the alleged probation violation, the attendance report was received in evidence without objection, and Family Court found that Markim had violated probation by failing to attend school regularly. After a dispositional hearing, Family Court amended its earlier order of disposition to place Markim with the Office of Children and Family Services for up to 12 months.

Markim appealed from the amended order of disposition, arguing for the first time that the VOP petition violated Family Court Act § 360.2 in that neither the petition nor the documents supporting it contained a sworn or nonhearsay allegation of his failure to attend school. While the attendance record was concededly admissible in evidence at the hearing, as a record of a municipal corporation certified in accordance with CPLR 4518 (c), Markim argued that the petition itself was invalid absent an allegation under oath by a witness with personal knowledge. The Appellate Division, holding that the facial insufficiency of a VOP petition “is a nonwaivable jurisdictional defect and can be raised for the first time on appeal” (22 AD3d 498, 500 [2005]), accepted Markim’s argument and reversed the amended order of disposition. We now reverse the Appellate Division’s order and reinstate Family Court’s amended order.

Discussion

The issue is whether the defects which, according to Markim, infected the VOP petition required preservation, or could be raised for the first time on appeal. Those defects were, according to Markim, violations of Family Court Act § 360.2 (2), which provides:

“The [VOP] petition must be verified and subscribed by the probation service or the appropriate presentment agency. Such petition must stipulate the condition or conditions of the order violated and a reasonable description of the time, place and manner in which the violation occurred. Non-hearsay allegations of the factual part of the petition or of any supporting depositions must establish, if true, every violation charged.”

Markim points out that this statute is in some ways similar to those governing petitions that begin juvenile delinquency proceedings. Family Court Act § 311.1 (4) says that the original petition “shall be verified in accordance with the civil practice law and rules,” and section 311.2 (3) provides: “A petition [originating a juvenile delinquency proceeding] ... is sufficient on its face when . . . non-hearsay allegations of the factual part of the petition or of any supporting depositions establish, if true, every element of each crime charged and the respondent’s commission thereof.” Markim also notes that we have held original petitions to be jurisdictionally defective when their allegations are not sworn to (Matter of Neftali D., 85 NY2d 631 [1995]) or lack nonhearsay support (Matter of Rodney J., 83 NY2d 503 [1994]), and that we made clear in Matter of Michael M. (3 NY3d 441 [2004]) that such defects can be raised for the first time on appeal. Markim argues that similar flaws in VOP petitions should also be considered jurisdictional and nonwaivable. We disagree.

The reason that certain defects in original delinquency petitions — unlike almost all other procedural defects in court proceedings — are jurisdictional and nonwaivable is that the original petition has a special importance. “A juvenile delinquency petition is ‘the sole instrument for the commencement, prosecution, and adjudication of the juvenile delinquency proceeding’ ” (Rodney J., 83 NY2d at 506, quoting Matter of Detrece H., 78 NY2d 107, 110 [1991]). “Compliance with the dictates of Family Court Act § 311.2 (3) is a formal prerequisite to a juvenile delinquency proceeding in the first instance” (Neftali D., 85 NY2d at 634). When an original delinquency petition is “legally insufficient,” the court lacks “a jurisdictional predicate to entertain the proceeding” (id.).

A VOP petition, by contrast, is not the foundation of the court’s jurisdiction. It does not commence a new proceeding, but is simply a new step in an existing one. Here, Family Court’s jurisdiction over Markim’s case, validly created by the original delinquency petition, did not end when Markim was adjudicated a delinquent and placed on probation. On the contrary, Family Court Act § 360.1 (1) provides: “A respondent who is placed on probation shall remain under the legal jurisdiction of the court pending expiration or termination of the period of the order of probation.” Since the court’s jurisdiction continued, a VOP petition was not needed to create it, and the alleged flaws in the VOP petition of which Markim complains could not be “jurisdictional.”

While the statutory language governing VOP petitions is in some way similar to that governing original petitions, there are differences more telling than the similarities. Family Court Act § 311.2 specifies when an original petition “is sufficient on its face”; no statute provides that a VOP petition is either “sufficient” or “insufficient.” While of course the VOP petition, like many other pleadings in many proceedings, is substantively important, it is not critical to the court’s jurisdiction, and defects in the VOP petition do not render it “insufficient” in the sense that they prevent the court from proceeding further.

The statute governing amendment of original delinquency petitions also illustrates their unique formal significance. The original petition may be amended as to “matters of form, time, place, names of persons and the like” (Family Ct Act § 311.5 [1]), but not to cure certain basic flaws, including “legal insufficiency of the factual allegations” (Family Ct Act § 311.5 [2] [b]). The Family Court Act makes no reference to the amendment of VOP petitions — from which Markim would have us draw the unlikely inference that they cannot be amended at all, even to correct ministerial errors. But we do not infer from the Legislature’s silence that it intended, for some hard to imagine reason, to make every word in a VOP petition sacrosanct. We conclude, rather, that, because a VOP petition is not a jurisdiction-creating document, the Legislature felt no need to specify when it can or cannot be amended; it left that issue, like the amendment of most documents filed at interlocutory stages of most proceedings, to the discretion of Family Court. VOP petitions are amendable with Family Court’s permission (see Matter of Vincent B., 239 AD2d 925 [4th Dept 1997]).

The issue of amendability is important to this case, because it was part of the basis for our holding in Michael M. that certain defects in original delinquency petitions do not require preservation. Quoting People v Casey (95 NY2d 354, 367 [2000]), we observed that “the curability of a particular procedural defect” is “a factor weighing in favor of requiring preservation,” and pointed out that “a legally insufficient juvenile delinquency petition . . . cannot be cured by amendment” (3 NY3d at 449). Because defects in VOP petitions can be cured by amendment, there is a good reason, absent in the case of original petitions, for requiring a party to complain of those defects at a time when cure is still possible.

We hold, in short, that if the VOP petition in this case was defective in the way Markim now claims, he was not free to remain silent about the defects in Family Court and complain of them for the first time on appeal. When the Appellate Division considered the merits of his challenge to the VOP petition, it erred. We do not reach the merits, and imply no opinion about them.

Accordingly, the order of the Appellate Division should be reversed, without costs, and Family Court’s amended order of disposition should be reinstated.

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

Order reversed, etc.


author: Graffeo, J.

text:
    [857 NE2d 60, 823 NYS2d 765]
    Great Northern Insurance Company, Plaintiff, v Interior Construction Corp. et al., Defendants, The Depository Trust & Clearing Corporation, Appellant, and New Water Street Corporation, Respondent. (And a Third-Party Action.)
    Argued September 12, 2006;
    decided October 19, 2006

      POINTS OF COUNSEL

      Herzfeld & Rubin, P.C., New York City (David B. Hamm of counsel), and Morris, Duffy, Alonso & Faley, LLP (Yolanda L. Ayala and Kevin G. Faley of counsel), for appellant.
    I. This lease did not manifest the “unmistakable intent” of the parties to require Depository Trust & Clearing Corporation to indemnify New Water Street Corporation for the latter’s own negligence. (Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153; Levine v Shell Oil Co., 28 NY2d 205; Kurek v Port Chester Hous. Auth., 18 NY2d 450; Niagara Frontier Transp. Auth. v Tri-Delta Constr. Corp., 107 AD2d 450, 65 NY2d 1038; Edge Mgt. Consulting, Inc. v Blank, 25 AD3d 364; Zanghi v Laborers’ Intl. Union of N.

      Am., AFL-CIO, 21 AD3d 1370; Moore v First Indus., 296 AD2d 537; Hooper Assoc. v AGS Computers, 74 NY2d 487; Matter of Wingen v Fleischman, 252 NY 114; Tonking v Port Auth. of N.Y. & N.J., 3 NY3d 486.) II. If the indemnification provisions in the lease are read to require Depository Trust & Clearing Corporation to indemnify New Water Street Corporation for New Water Street Corporation’s own negligence, they are void under General Obligations Law § 5-321. (Kirshenbaum v General Outdoor Adv. Co., 258 NY 489; Argentina v Emery World Wide Delivery Corp., 93 NY2d 554; Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372; Matter of Regan v Crime Victims Compensation Bd., 57 NY2d 190; Danielson v Jameco Operating Corp., 20 AD3d 446; Molina v Perez, 18 AD3d 453; Breakaway Farm, Ltd. v Ward, 15 AD3d 517; Delgiudice v Papanicolaou, 5 AD3d 236; Tormey v City of New York, 302 AD2d 277; Glens Falls Ins. Co. v City of New York, 293 AD2d 568.)

      Quirk and Bakalor, PC., New York City (Richard H. Bakalor of counsel), for respondent.
    I. A party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances. (Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774; Margolin v New York Life Ins. Co., 32 NY2d 149; Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153; Hooper Assoc. v AGS Computers, 74 NY2d 487.) II. The intention to indemnify New Water Street Corporation for its own negligence can be clearly implied from the language and purposes of the entire agreement and surrounding facts and circumstances. (Parra v Ardmore Mgt. Co., 258 AD2d 267; Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153; Reyes v Orient Overseas Assoc., 309 AD2d 682; Liff v Consolidated Edison Co. of N.Y., 29 AD2d 665, 23 NY2d 854; Levine v Shell Oil Co., 28 NY2d 205; R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29; South Rd. Assoc., LLC v International Bus. Machs. Corp., 4 NY3d 272; Penn v Jaros, Baum & Bolles, 12 AD3d 255; Security Ins. Co. of Hartford v Interior Constr. Corp., 307 AD2d 877.) III. Hogeland v Sibley, Lindsay & Curr Co. (42 NY2d 153 [1977]) is still the law in the State of New York. (Kinney v Lisk Co., 76 NY2d 215; Ameri v Young Skincare Ctr., 170 AD2d 280; Parra v Ardmore Mgt. Co., 258 AD2d 267; Schumacher v Lutheran Community Servs., 177 AD2d 568; La Vack v National Shoes, 124 AD2d 352; Reeves v Welch, 127 AD2d 1000; Tormey v City of New York, 302 AD2d 277; Sanford v Woodner Co., 304 AD2d 813.) IV Stare decisis by itself, under the facts herein, should lead to the affirmanee of the court below. (Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153; Cenven, Inc. v Bethlehem Steel Corp., 41 NY2d 842; Maxton Bldrs. v Lo Galbo, 68 NY2d 373; Matter of Higby v Mahoney, 48 NY2d 15; Kinney v Lisk Co., 76 NY2d 215.) V There is no statute prohibiting a landlord from obtaining contractual indemnification for its own negligence from its tenant when the parties allocate the risk of liability to third parties, essentially through the employment of insurance. (Kirshenbaum v General Outdoor Adv. Co., 258 NY 489; Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153; Levine v Shell Oil Co., 28 NY2d 205; Mirsky v Seaich Realty Co., 256 App Div 658; Lake v Watertown Natl. Bank, 31 Misc 2d 336.) VI. Since the insurance coverage required by the lease, which coverage was in fact obtained, is greater than the damages claimed or the amount for which plaintiff’s case settled, there is no public policy reason not to enforce the indemnity agreement. (Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153; Parra v Ardmore Mgt. Co., 258 AD2d 267; Morel v City of New York, 192 AD2d 428; Ameri v Young Skincare Ctr., 170 AD2d 280.)
   OPINION OF THE COURT

Graffeo, J.

At issue in this case is the enforceability of an indemnification provision in a commercial lease. We conclude that the indemnification clause, which was coupled with an insurance procurement provision, obligates the tenant to indemnify the landlord for its share of liability, and that such a lease provision does not violate General Obligations Law § 5-321. We therefore affirm the order of the Appellate Division so holding.

New Water Street Corporation leased a portion of the 28th floor of its building located at 55 Water Street in New York City to Depository Trust & Clearing Corporation. The lease required Depository to indemnify New Water as follows:

“Tenant shall indemnify and hold harmless Landlord . . . from and against any and all claims arising from or in connection with (A) the conduct or management of the Premises or of any business therein, or any work or thing whatsoever done, or any condition created (other than by Landlord) in or about the Premises during the term of this Lease . . . ; (B) any act, omission or negligence of Tenant or any of its subtenants or licensees ... or contractors; (C) any accident, injury or damage whatsoever (unless caused solely by Landlord’s negligence) occurring in, at or upon the Premises; and (D) any breach or default by Tenant in the full and prompt payment and performance of Tenant’s obligation under this Lease . . .

The lease further obligated Depository, at its expense, to maintain a comprehensive general liability insurance policy naming New Water as an additional insured with coverage to be no less than $5 million “combined single limit per occurrence for bodily injury and property damage liability.” Another lease term directed New Water and Depository to obtain mutual waivers of subrogation in their respective insurance policies. Depository procured the specified insurance coverage, and New Water also maintained a separate insurance policy for the building.

After entering into the lease, Depository hired Interior Construction Corporation to renovate a portion of its premises. Interior subcontracted with TM & M Mechanical Corporation to perform work on an existing sprinkler system as part of the project. In August 1999, during construction, a flood occurred, causing property damage to the premises of Neuberger & Berman, LLC, a tenant on the floor below. The water damage resulted from the failure to drain the pipes properly before beginning the sprinkler work.

Great Northern Insurance Company — Neuberger’s insurer— commenced a subrogation action against New Water, Depository and Interior in June 2001 to recover the monies it had paid to Neuberger on its property damage claim. As relevant to this appeal, New Water interposed a cross claim against Depository for contractual indemnification. In 2004, the subrogation action was settled for $200,000 and all claims and cross claims among the parties were resolved, except for New Water’s indemnification claim against Depository. As part of the settlement, the parties stipulated that if the case had been tried by a jury, 90% of the liability would have been allocated to New Water and 10% to Interior. After the settlement, New Water moved for summary judgment against Depository on its claim for contractual indemnification. Supreme Court denied the motion. The Appellate Division initially affirmed but later granted reargument and reversed, thereby granting New Water’s motion. We granted Depository leave to appeal.

Depository advances two arguments to support its position that New Water is not entitled to contractual indemnification. First, Depository asserts that the language of the lease provision at issue does not unmistakably require indemnification under the circumstances of this case. Alternatively, even if interpreted to entitle New Water to indemnification, Depository urges that the lease provision is unenforceable and contrary to public policy under General Obligations Law § 5-321 because it obligates a tenant to indemnify a landlord for the landlord’s own negligence. We address each contention in turn.

Courts will construe a contract to provide indemnity to a party for its own negligence only where the contractual language evinces an “unmistakable intent” to indemnify (see Levine v Shell Oil Co., 28 NY2d 205, 212 [1971]). As we have explained:

“When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed. The promise should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances” (Hooper Assoc. v AGS Computers, 74 NY2d 487, 491-492 [1989] [citations omitted]; see also Rodrigues v N & S Bldg. Contrs., Inc., 5 NY3d 427, 433 [2005]).

Here, subsection (C) of the indemnification clause in the lease required Depository to indemnify New Water for “any” accident occurring in Depository’s premises “unless caused solely by [New Water’s] negligence.” This broadly drawn provision unambiguously evinced an intent that Depository indemnify New Water for the latter’s own negligence, provided New Water was not 100% negligent. In this case, the parties stipulated that New Water was 90% at fault and Depository’s contractor was 10% responsible for the water damage. Hence, New Water was not solely liable under the terms of the stipulation and the clear language of the lease unmistakably affords indemnification under the circumstances of this case.

Having concluded that the indemnification provision was triggered, we next consider Depository’s contention that the provision is nevertheless unenforceable in light of General Obligations Law § 5-321. That statute provides:

“Every covenant, agreement or understanding in or in connection with or collateral to any lease of real property exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the demised premises or the real property containing the demised premises shall be deemed to be void as against public policy and wholly unenforceable.”

The controlling precedent regarding application of General Obligations Law § 5-321 is Hogeland v Sibley, Lindsay & Curr Co. (42 NY2d 153 [1977]). In Hogeland, a customer sustained injuries when she tripped on a sidewalk outside the tenant’s store. The jury awarded damages in the ensuing personal injury action, allocating 60% of the fault to the landlord and 40% to the tenant. The landlord then sought contractual indemnification for its share of the damages from the tenant based on a clause in the lease obligating the tenant to indemnify the landlord for all claims arising from accidents “in or about the Tenant’s demised premises” (id. at 157). Significantly, the lease also contained an insurance procurement provision, directing the tenant to name the landlord as an additional insured on the tenant’s liability insurance policy if the landlord so requested, provided the landlord bore any increase in premium costs.

Recognizing at the outset that the lease in Hogeland was negotiated at arm’s length by two sophisticated business entities, we determined that the contested clause required the tenant to indemnify the landlord for its own negligence. We then addressed the impact of General Obligations Law § 5-321, if any, on the landlord’s right to recover, and observed that the statute’s invalidation of agreements “exempting” lessors from liability for damages resulting from their own negligence “strongly suggests that [it] was directed primarily to exculpatory clauses in leases whereby lessors are excused from direct liability for otherwise valid claims which might be brought against them by others” (id. at 160). We held that General Obligations Law § 5-321 did not preclude the landlord’s indemnification claim, reasoning:

“It is against this background of declared purpose that the indemnification clauses before us must be considered. So analyzed, [the landlord] is not exempting itself from liability to the victim for its own negligence. Rather, the parties are allocating the risk of liability to third parties between themselves, essentially through the employment of insurance. Courts do not, as a general matter, look unfavorably on agreements which, by requiring parties to carry insurance, afford protection to the public” (id. at 161).

There is no meaningful distinction between Hogeland and the case before us. As in Hogeland, this case presents a commercial lease negotiated between two sophisticated parties who included a broad indemnification provision, coupled with an insurance procurement requirement. That arrangement afforded Neuberger, the tenant who sustained water damage, adequate recourse for the damages it suffered. Additionally, Depository’s insurer — not Depository itself — will bear ultimate responsibility for the indemnification payment, which is precisely the result contemplated by the parties when they entered into the lease. Where, as here, a lessor and lessee freely enter into an indemnification agreement whereby they use insurance to allocate the risk of liability to third parties between themselves, General Obligations Law § 5-321 does not prohibit indemnity.

Finally, we decline Depository’s invitation to overrule Hogeland. Under the doctrine of stare decisis, we do not lightly depart from our precedents, particularly those involving contractual rights or statutory interpretation — both are at stake in this case (see Maxton Bldrs. v Lo Galbo, 68 NY2d 373, 381 [1986]; Matter of Higby v Mahoney, 48 NY2d 15, 19 [1979]). Commercial landlords and tenants have relied on Hogeland for close to 30 years in negotiating their contractual relationships and the Legislature has not seen fit to alter this rule.

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

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

Order affirmed, with costs.

      . Great Northern later amended the complaint to add TM & M as a defendant.

      . Interior agreed to pay $20,000 and TM & M agreed to pay $6,700 under the settlement. New Water and Depository, through their insurers, each paid $86,650. Accordingly, New Water seeks $86,650 from Depository (to be paid by Depository’s insurer) under its contractual indemnification claim.

      . Since we find that New Water is entitled to indemnification under subsection (C) of the clause, our decision does not turn on other subsections of that provision. Furthermore, we are unpersuaded by Depository’s claim that subsection (A) of that clause negates the coverage specially provided by subsection (C). Even if, as Depository asserts, all four subsections must be read together, the subsection (A) reference to “conditions” created by New Water — to the extent such conditions contemplate negligence principles — would necessarily be qualified by subsection (C)’s “sole negligence” language. As such, New Water would be entitled to indemnification for damages resulting from a condition it created unless the condition arose solely through its own negligence, which all parties agree was not the situation here.

      . Nor do we find the absence of a contractual provision expressly limiting New Water’s recovery to Depository’s insurance coverage fatal (cf. Colosi v RATL, LLC, 7 AD3d 558, 559 [2d Dept 2004]). Here, Depository’s insurance policy afforded coverage of $5 million to New Water as an additional insured. The liability at issue in this case amounted to $86,650. The question of whether a landlord may seek indemnification in excess of insurance limits is therefore not before us and we do not reach it.


author: Chief Judge Kaye. R.S. Smith, J.

text:
    [857 NE2d 52, 823 NYS2d 757]
    The People of the State of New York, Respondent, v Egbert Grant, Appellant.
    Argued September 13, 2006;
    decided October 17, 2006

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Daniel A. Warshawsky, Richard M. Greenberg and Saadia Aleem of counsel), for appellant.
    Because the trial court’s erroneous Sandoval ruling prevented Egbert Grant from testifying, in a case where Mr. Grant was the sole source of his defense, this Court must reverse Mr. Grant’s conviction. (People v Sandoval, 34 NY2d 371; People v Davis, 44 NY2d 269; People v Dokes, 79 NY2d 656; People v Mayrant, 43 NY2d 236; People v Bowles, 132 AD2d 465; People v Coe, 95 AD2d 685; People v Carmack, 52 AD2d 264; People v Pavao, 59 NY2d 282; People v Perez, 246 AD2d 335; People v Walker, 83 NY2d 455.)

      Robert T. Johnson, District Attorney, Bronx (Na Na Park and Nancy D. Killian of counsel), for respondent.
    I. Defendant failed to preserve his current constitutional claim. (People v Sandoval, 34 NY2d 371; People v Dokes, 79 NY2d 656; People v Stephens, 84 NY2d 990; People v Iannelli, 69 NY2d 684; People v Kello, 96 NY2d 740.) II. The trial court’s Sandoval ruling did not constitute an abuse of discretion as a matter of law. (People v Shields, 46 NY2d 764; People v Walker, 83 NY2d 455; People v Mattiace, 77 NY2d 269; People v Williams, 56 NY2d 236; People v Sando

      val, 34 NY2d 371; People v Carracedo, 89 NY2d 1059; People v Carpenito, 80 NY2d 65; People v Mayrant, 43 NY2d 236; People v Hayes, 97 NY2d 203; People v Brown, 48 NY2d 921.) III. If the trial court’s Sandoval ruling was erroneous, the error was harmless. (People v Mitchell, 209 AD2d 443; People v Brown, 84 AD2d 819; People v Bowles, 132 AD2d 465; People v Williams, 56 NY2d 236; People v Shields, 46 NY2d 764; People v Davis, 44 NY2d 269; People v Mattiace, 77 NY2d 269; People v Crimmins, 36 NY2d 230; People v Kello, 96 NY2d 740; People v Hamlin, 71 NY2d 750.)
   OPINION OF THE COURT

Chief Judge Kaye.

Defendant was convicted of multiple counts of criminal contempt in the first degree, based on charges that on May 12, 2002 (Mother’s Day), he repeatedly went to the home of his ex-wife and their four children, and harassed them, in violation of an order of protection. The order mandated that defendant stay away from these named individuals, as well as from their home, school, business and place of employment. It further directed him to refrain from any contact with, or from assaulting, stalking, harassing, menacing or recklessly endangering, the five persons named in the order.

Prior to the commencement of his jury trial, the court ruled, under People v Sandoval (34 NY2d 371 [1974]), that should defendant testify, the People would be permitted to impeach him by mention of his six prior criminal-contempt convictions. Thereafter, his attorney informed the court that “due in part to the fact that his criminal background would be exposed if he does testify, he has chosen voluntarily not to testify.” Upon its review of the Sandoval ruling, the Appellate Division concluded that the trial court had erred by permitting cross-examination as to all six of defendant’s contempt convictions. Nevertheless, the Appellate Division upheld the conviction, determining the error to be harmless. We affirm.

Defendant argues that Sandoval error resulting in a defendant’s decision not to testify can never be harmless. We disagree. Although we have not until today been squarely presented with the question, our precedents assume that harmless-error analysis applies. In People v Williams (56 NY2d 236 [1982]), for example, this Court overturned a conviction on the basis that the Sandoval error committed by the trial court was not harmless (see also People v Shields, 46 NY2d 764 [1978] [upholding Appellate Division’s determination of harmlessness of trial errors, including Sandoval error]).

We now hold explicitly what was implicit in Williams and Shields: Sandoval error is properly subject to harmless-error analysis. At the outset, we note that although defendant claims that his constitutional right to testify in his own behalf was violated by the court’s Sandoval ruling, he never raised any constitutional claim before the trial court, thus failing to preserve this contention for our review. Accordingly, his current claim must be reviewed under the standard applicable to non-constitutional harmless error (see People v Kello, 96 NY2d 740, 743-744 [2001]). Under that standard, an error will be deemed harmless when the proof of guilt was overwhelming and there was no significant probability that the jury would have acquitted had the error not occurred (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).

When an appellate court reviews the allowance as impeachment evidence of a defendant’s prior convictions, the underlying issue with which to be concerned, as relevant here, is whether the apprehension of the introduction of evidence of the defendant’s prior criminal, vicious or immoral conduct will “undesirably deter the defendant from taking the stand and thereby deny the jury or court significant material evidence” (Sandoval, 34 NY2d at 376). The other consideration pertinent to an assessment of the prejudicial impact of admitting such evidence is, of course, whether the testimony to be elicited will “have a disproportionate and improper impact on the triers of fact” (id.).

If, in a particular case, the factfinder is deprived of no significant material evidence, then the defendant has not been denied a fair trial and reversal of the conviction would serve no jurisprudential purpose (see People v Grant, 45 NY2d 366, 378 [1978]). Assuming that the trial court here abused its discretion, we agree with the Appellate Division that any error was harmless, since defendant’s decision not to testify did not deprive the jury of any “critical information” (Williams, 56 NY2d at 241).

To be sure, harmless-error analysis in the context of Sandoval “does not involve speculation as to whether a defendant would have testified if the legal error had not occurred” (Williams, 56 NY2d at 240 [citations omitted]). Here, however, the error was harmless not because of speculation as to whether defendant would have testified, but because the record reflects that, assuming that he did testify, there was simply no possibility — let alone a significant probability — that his testimony would have led to an acquittal.

The evidence of defendant’s guilt was overwhelming. Inasmuch as his knowledge of the terms of the order of protection was not in dispute at trial, the only conceivable issue for the jury to resolve was whether defendant in fact went to his family’s home on May 12, 2002. His ex-wife and two of their teenaged children testified that defendant came to their home three times over the course of that day. While there, he repeatedly yelled and cursed at his ex-wife. Although defendant states in the abstract that he was “the sole source of his defense,” he proffers no hint that he actually had any creditable defense, and offers no suggestion as to what it might have been. Plainly, on this record, there is nothing to which he could legitimately have testified that might have been believed by a jury. Accordingly, allowing the introduction of all six of his prior criminal-contempt convictions to impeach his incredible testimony — as opposed to, say, limiting cross-examination to only two or three of them — could not possibly have affected the jury’s verdict.

To expect a defendant to make some minimal proffer as to the nature or existence of a defense, in camera if necessary, is consistent with the principles underlying Sandoval, where we made clear that it is the defendant who has the burden “of demonstrating that the prejudicial effect of the admission of evidence [of prior convictions and misconduct] for impeachment purposes would so far outweigh the probative worth of such evidence on the issue of credibility as to warrant its exclusion” (34 NY2d at 378).

A contrary result, moreover, would unfairly penalize criminal defendants who exercise their right to testify. Had defendant testified and been impeached by a prior conviction, the trial court’s decision would indisputably be subject to harmless-error analysis, as defendant concedes. Under defendant’s proposed rule, however, defendants who decline to testify after an erroneous Sandoval ruling must earn automatic reversal. In insisting that we cannot speculate as to what he might have said had he testified, defendant would afford a windfall to those defendants who have no viable defense and so could not possibly have made any creditable proffer before the trial court.

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

R.S. Smith, J.

(dissenting). I dissent reluctantly. The reasons that the majority gives for its holding are good ones, and I agree that the holding is supported, though not compelled, by our decisions in People v Williams (56 NY2d 236 [1982]) and People v Shields (46 NY2d 764 [1978]). But I cannot accept the proposition that an error that prevented a defendant from telling his side of the story to a jury can ever be “harmless.”

The majority thinks the case against defendant was so “overwhelming” (majority op at 425) that nothing he could possibly have said would have led a jury to acquit him. I do not suggest that I disagree; but I do not think it is our place, or any court’s place, to decide that question. To hold that interference with the defendant’s right to testify may be overlooked because of his failure to make a “proffer” that the trial court finds “creditable” (majority op at 426) is to sanction a trespass by the court on the jury’s province that is not consistent with the way our system works. (Cf. Holmes v South Carolina, 547 US 319, 126 S Ct 1727 [2006] [upholding a defendant’s right to present defense based on third-party guilt, despite DNA evidence showing defendant committed the crime].)

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

Order affirmed.

      . A determination to allow cross-examination on prior criminal conduct merely deters, but does not prevent, a defendant from testifying (see Ohler v United States, 529 US 753, 759 [2000]).

      . “Commission of perjury or other crimes or acts of individual dishonesty, or untrustworthiness . . . will usually have a very material relevance, whenever committed” (Sandoval, 34 NY2d at 377). Plainly, the past violation of an order of protection, like prior perjury, bears heavily on the issue of veracity, since a person who willfully violates a judicial mandate after agreeing to comply with the court’s order may logically be presumed to be similarly willing to violate his obligation to tell the truth despite his having made a promise to the court to testify honestly.

      . Although defendant originally indicated that he intended to introduce an alibi witness, the record reflects that he chose not to do so after that witness admitted to defense counsel that she had gone with defendant to the forbidden residence on the date in question and that her earlier claim to the prosecutor that defendant had never been there had been a lie.


author: Read, J.

text:
    [857 NE2d 56, 823 NYS2d 761]
    In the Matter of Lawrence Schwartz, Appellant, v Robert M. Morgenthau, as District Attorney of the County of New York, Respondent.
    Argued September 12, 2006;
    decided October 17, 2006

      POINTS OF COUNSEL

      Stein Riso Mantel, LLP, New York City (Gerard A. Riso, Roger K. Marion and. George L. Schwab of counsel), for appellant.
    I. The Appellate Division incorrectly found that appellant was guilty of laches. (Matter of Fischer v Roche, 81 AD2d 541, 54 NY2d 962; 90-92 Wadsworth Ave. Tenants Assn. v City of N.Y. Dept. of Hous. Preserv. & Dev., 227 AD2d 331; Matter of Rapess v Ortiz, 99 AD2d 413; Local 851 of Intl. Bhd. of Teamsters v State of New York, 7 Misc 3d 1013[A], 2005 NY Slip Op 50584[U]; Matter of Barabash, 31 NY2d 76; General Elec. Capital Corp. v Pacheco & Lugo, 300 AD2d 185; Matter of Sori-Goalya Realty v New York City Loft Bd., 284 AD2d 137; Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801; Galyn v Schwartz, 56 NY2d 969; Sorrentino v Mierzwa, 25 NY2d 59.) II. The Appellate Division incorrectly found that appellant lacked standing to bring the petition. (Matter of District Attorney of Suffolk County, 58 NY2d 436; Chester Civic Improvement Assn. v New York City Tr. Auth., 122 AD2d 715; Matter of Fritz v Huntington Hosp., 39 NY2d 339; Matter of Coastal Oil N.Y. v Newton, 231 AD2d 55; Hammer v American Kennel Club, 304 AD2d 74; New York County Lawyers’ Assn. v Pataki, 188 Misc 2d 776; People v Davis, 94 AD2d 610.) III. Respondent should be compelled to apply the $250,000 payment pursuant to the dictates of CPLR 1349. (Council of Regulated Adult Liq. Licensees v City of N.Y. Police Dept., 300 AD2d 17; Matter of Davila v New York City Hous. Auth., 190 AD2d 511; Briedis v Village of Tuxedo Park, 156 AD2d 744; Matter of Bayswater Health Related Facility v New York State Dept. of Health, 57 AD2d 996; Matter of Hurst v Board of Educ. for Ithaca City

      School Dist., 242 AD2d 130; Matter of Clark v Board of Educ. for Kingston City School Dist., 236 AD2d 709, 90 NY2d 662.)

      Robert M. Morgenthau, District Attorney, New York City (Michael S. Morgan and Mark Dwyer of counsel), respondent pro se.
    I. The Appellate Division correctly found that petitioner’s CPLR article 78 petition was untimely. (Matter of Bottom v Goord, 96 NY2d 870; Austin v Board of Higher Educ. of City of N.Y., 5 NY2d 430; Matter of Waterside Assoc. v New York State Dept. of Envtl. Conservation, 72 NY2d 1009; Matter of De Milio v Borghard, 55 NY2d 216; Matter of Rapess v Ortiz, 99 AD2d 413; Matter of Central School Dist. No. 2 v New York State Teachers’ Retirement Sys., 23 NY2d 213; Matter of Blue v Commissioner of Social Servs., 306 AD2d 527; Matter of Thomas v Stone, 284 AD2d 627; Matter of Densmore v Altmar-Parish-Williamstown Cent. School Dist., 265 AD2d 838; Matter of Devens v Gokey, 12 AD2d 135.) II. The Appellate Division correctly found that petitioner lacks standing to challenge District Attorney Morgenthau’s alleged noncompliance with his obligations under the state forfeiture statute. (Matter of Schulz v State of New York, 81 NY2d 336; Merrill v Albany Med. Ctr. Hosp., 71 NY2d 990; Matter of Attorney Gen. of State of N.Y. v Firetog, 94 NY2d 477; People v Davis, 94 AD2d 610; People v Selikoff, 35 NY2d 227; People v McConnell, 49 NY2d 340; Matter of Farrow v Hynes, 259 AD2d 545; People v Gasbarro, 114 AD2d 594, 67 NY2d 1002; People v Danny G., 61 NY2d 169; Matter of Dairylea Coop. v Walkley, 38 NY2d 6.) III. Because District Attorney Morgenthau fully complied with his obligations under the state forfeiture statute, petitioner is not entitled to mandamus relief. (Matter of Harper v Angiolillo, 89 NY2d 761; Klostermann v Cuomo, 61 NY2d 525; Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12; Matter of Brusco v Braun, 84 NY2d 674; Matter of Altamore v Barrios-Paoli, 90 NY2d 378; Matter of Morgenthau v Gold, 69 NY2d 735; Morgenthau v Citisource, Inc., 68 NY2d 211; Matter of Nassau BO-CES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100; Matter of Williams v Cornelius, 76 NY2d 542.)
   OPINION OF THE COURT

Read, J.

On May 15, 2000, petitioner Lawrence Schwartz pleaded guilty in the United States District Court for the Southern District of New York to a two-count federal information charging insider trading. On June 9, 2000, he was sentenced to 18 months in prison, followed by supervised release for a term of three years. As a condition of the supervised release, petitioner was required to pay $786,402 in restitution “no later than 90 days prior to the end of [his] supervised release.”

Shortly thereafter, on June 16, 2000, petitioner pleaded guilty in Supreme Court to one count of scheme to defraud in the first degree (Penal Law § 190.65) in satisfaction of state charges pending against him in New York County. He admitted that he had “schemed and conspired” with his son and certain rival contractors and others to rig bids, thereby inflating prices of construction-related contracts at various residential and commercial buildings in the New York metropolitan area.

Petitioner was sentenced on August 29, 2000, to an indeterminate prison term of 1 to 3 years, to be served concurrently with his federal sentence. He agreed to pay $750,000 in restitution and $250,000 in lieu of forfeiture, the former payable in installments and the latter payable in full on or before the date of sentence. The forfeiture stipulation specified that the $250,000 “shall be forfeited pursuant to CPL § 220.50 (6) and, in accordance therewith, distributed pursuant to CPLR § 1349.”

On May 6, 2003, while petitioner was still under the supervision of the New York State Division of Parole and on federal supervised release, his attorney wrote to the District Attorney, seeking information as to how petitioner’s restitution and forfeiture payments had been disbursed. Noting that petitioner still owed more than $250,000 in federal restitution, his attorney asked the District Attorney to verify that the $250,000 state forfeiture payment would be applied to the federal restitution obligation “as required by the order of priority set forth in CPLR § 1349.” As relevant, this provision states at subdivision (2) (c) that

“moneys realized as a consequence of any forfeiture pursuant to this article shall be apportioned and paid in the following descending order of priority:
“(c) Amounts ordered to be paid by the defendant in any other action or proceeding as restitution, reparations or damages to a victim of any crime committed by the defendant even though such crime did not constitute the basis for forfeiture under this article, to the extent that such amounts remain unpaid.”

On July 24, 2003, the District Attorney responded, informing petitioner that $80,000 of the forfeited amount had been sent to the state substance abuse service fund (see CPLR 1349 [2] [g]), with the remainder retained by the District Attorney in his capacity as claiming agent and claiming authority. The District Attorney refused to apply any portion of the forfeited moneys to satisfy petitioner’s federal restitution debt, noting that CPLR 1349 (2) (c) “was clearly designed to protect victims of crimes— not the defendants who commit them.” Further, if petitioner’s “assets were totally depleted (an allegation that has not been made) and he were to default upon his agreed upon payments, then the unpaid victims may have standing to claim money from the District Attorney’s Office.”

On September 24, 2003, petitioner commenced a CPLR article 78 proceeding in the nature of mandamus, seeking to compel the District Attorney to apply the $250,000 forfeiture payment, “together with appropriate interest,” to his federal restitution debt. Petitioner claimed that the District Attorney had violated CPLR 1349 (2) (c) when “[i]nstead of paying the money to the benefit of the [federal] victims,” he “retained $170,000 for [his] own purposes and donated $80,000 to a substance abuse program.” On October 8, 2003, the District Attorney moved to dismiss the petition on the grounds that it was untimely and petitioner lacked standing, and thus had failed to establish a clear legal right to the requested relief. In the event the petition was not dismissed, the District Attorney requested a reasonable time to file an answer as CPLR 7804 (f) requires.

On July 8, 2004, Supreme Court denied the motion to dismiss and granted the petition, first rejecting the District Attorney’s statute-of-limitations and laches defenses. The court also concluded that petitioner had standing because

“a plain reading of CPLR § 1349 shows that the legislature, in establishing the order of priority set forth in the statute, intended not only to benefit the victims of crimes, but ‘arguably’ to provide an indirect benefit to the perpetrators of crime by allowing funds forfeited by them to be applied to other unrelated crimes that they committed.”

Supreme Court held that “[t]hrough [his] failure to apply the funds to the restitution debt remaining in the Federal Case, . . . [the District Attorney] failed to comply with the order of priority set forth in CPLR § 1349 and adopted by the Stipulation.” The court ordered the District Attorney to apply the full $250,000 forfeiture payment to petitioner’s federal restitution obligation.

The Appellate Division subsequently reversed Supreme Court’s judgment on the law, granted the District Attorney’s motion, denied the petition, and dismissed the proceeding. The Appellate Division concluded that the petition was untimely, and that petitioner lacked standing. We subsequently granted petitioner permission to appeal, and now affirm the Appellate Division on the ground that petitioner lacks standing to press a claim for violation of CPLR 1349 in this CPLR article 78 proceeding.

“[T]he contemporary rule is that a party has standing to enforce a statutory right if its abuse will cause him injury and it may fall within the ‘zone of interest’ protected by the legislation” (Matter of District Attorney of Suffolk County, 58 NY2d 436, 442 [1983]). “Simply stated, a party must show that the in-fact injury of which it complains (its aggrievement, or the adverse effect upon it) falls within the ‘zone of interests,’ or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted” (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 773 [1991]).

Here, petitioner’s purported injury — the windfall he failed to realize when the District Attorney refused to apply the state forfeiture to satisfy petitioner’s federal restitution obligations— does not fall within the zone of interests protected by CPLR 1349. The Legislature restructured forfeiture procedures in 1984 to create a “forfeiture statute [that] can be used by law enforcement agencies throughout the state as an effective tool to take the profit out of crime” (Governor’s Mem approving L 1984, ch 669, Bill Jacket, at 7). In 1990, the Legislature strengthened forfeiture yet again to allow state and local agencies to receive a share of forfeited property so as to recover some of their expenses in investigating and preparing forfeiture actions (see Governor’s Program Bill Mem, Bill Jacket, L 1990, ch 655). Legislation does not “take the profit out of crime” or encourage district attorneys to pursue forfeiture by empowering a criminal defendant like petitioner to direct forfeited moneys so as to suit his own best interests.

Further, CPLR 1349 (2) (c) requires the claiming authority to apply forfeited moneys to restitution debts “to the extent that such amounts remain unpaid.” Thus, a criminal defendant must exhaust his resources before forfeited moneys may be tapped to pay off his restitution debts. To interpret the statute otherwise, as petitioner urges, would risk rendering forfeiture meaningless. Here, petitioner has not even alleged that he lacks the funds to pay his federal restitution obligations, much less proven this. As the District Attorney intimated in his letter to petitioner, any unpaid victims of petitioner’s other crimes, as the intended beneficiaries of CPLR 1349 (2) (c), have standing to enforce the statute by making a claim against the District Attorney for the forfeited moneys. Petitioner, however, does not. He has standing to enforce his plea agreement, but in this case the plea agreement says no more than that the District Attorney will comply with CPLR 1349. The plea agreement does not compel the District Attorney to use petitioner’s state forfeiture to satisfy his federal restitution obligations. In short, petitioner may not bootstrap the reference to CPLR 1349 in his plea agreement into standing to enforce this statute.

As a final matter, in this case the District Attorney seems to have committed forfeited moneys to lower-priority purposes before he had any reason to know whether petitioner had sufficient resources to pay federal claimants. While this course of action appears somewhat risky, here we have no way of knowing why the District Attorney proceeded as he did because an answer was never filed.

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

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo and R.S. Smith concur; Judge Pigott taking no part.

Order affirmed, without costs.